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Full text of "The General Laws of the Commonwealth of Massachusetts, enacted December 22, 1920 : to take effect January 1, 1921, with the Constitution of the United States, the Constitution of the Commonwealth and the rearrangement thereof and tables showing the disposition of the revised laws and of other statutes of general application"

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CLERK  OF  SENATE 


State  Library  of  Massachusetts 
~^  State  House,  Boston 


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THE 

GENERAL    LAWS 


OF 


QTfje  Commontoealtf)  of  ilassacljugettg 

Enacted   December   22,    1920 
To    TAKE    Effect    January    1,    1921 

WITH  THE 

CONSTITUTION  OF  THE  UNITED  STATES,  THE  CONSTITUTION  OF  THE 

COMMONWEALTH    AND    THE    REARRANGEMENT    THEREOF 

AND  TABLES  SHOWING  THE  DISPOSITION  OF  THE 

REVISED  LAWS  AND  OF  OTHER  STATUTES 

OF  GENERAL  APPLICATION 

VOL.     II 

Chapters    128-282 


BOSTON 

WEIGHT  &  POTTER  PRINTING  CO.,   STATE  PRINTERS 

32  DERNE  STREET 

1921 


ANALYSIS 


TITLES   AND   CHAPTERS 


CONTAINED  IN 

THE    GENERAL    LAWS 


Vol.  I. 


PART    I. 

ADlVnNISTRATION  OF  THE  GOVERNMENT. 


1  TITLE    I. 

JURISDICTION    AND    EMBLEMS    OF    THE    COMMONWEALTH,    THE    GENERAL 
COURT,    STATUTES    AND    PUBLIC    DOCUMENTS. 

Chapter  1.  Jurisdiction  of  the  Commonwealth  and  of  the  LTnited  States. 

Chapter  2.  Arms,  Great  Seal  and  Other  Emblems  of  the  Commonwealth. 

Chapter  3.  The  General  Court. 

Chapter  4.  Statutes. 

Chapter  5.  Printing  and  Distribution  of  Laws  and  Public  Documents. 

TITLE    II. 

EXECUTIVE  AND   ADMINISTRATIVE  OFFICERS  OF  THE  COMMONWEALTH. 

Chapter    6.     The  Governor,  Lieutenant  Governor  and  Council,  Certain  Officers  under  the 

Governor  and  Council,  and  State  Library. 
Chapter    7.     Supervisor  of  Administration. 
Chapter    8.     Superintendent  of  Buildings,  and  State  House. 
Chapter    9.     Department  of  the  State  Secretary. 
Chapter  10.     Department  of  the  State  Treasurer. 
Chapter  11.     Department  of  the  State  Auditor. 

Chapter  12.     Department  of  the  Attorney  General,  and  the  District  Attorneys. 

[iiil 


IV 


ANALYSIS  - 


■PART   I. 


Chapter  13.  Department  of  Civil  Service  and  Registration. 

Chapter  14.  Department  of  Corporations  and  Taxation. 

Chapter  15.  Department  of  Education. 

Chapter  16.  Department  of  Public  Works. 

Chapter  17.  Department  of  Public  Health. 

Chapter  IS.  Department  of  Public  Welfare. 

Chapter  19.  Department  of  Mental  Diseases. 

Chapter  20.  Department  of  Agriculture. 

Chapter  21.  Department  of  Conservation. 

Chapter  22.  Department  of  Public  Safety. 

Chapter  23.  Department  of  Labor  and  Industries. 

Chapter  24.  Department  of  Industrial  Accidents. 

Chapter  25.  Department  of  Public  Utilities. 

Chapter  26.  Department  of  Banking  and  Insurance. 

Chapter  27.  Department  of  Correction. 

Chapter  28.  Metropolitan  District  Commission. 


TITLE    III. 

LAWS   RELATING   TO  STATE   OFFICERS. 

Chapter  29.     State  Finance. 

Chapter  30.     General  Provisions  relative  to  State  Departments,  Commissions,   Officers   and 
Employees. 


TITLE     IV. 

CIVIL  SERVICE,   RETIREMENTS   AND   PENSIONS. 

Chapter  31.     Civil  Service. 

Chapter  32.     Retirement  Systems  and  Pensions. 


TITLE    V. 

MILITIA. 

Chapter  33.     Militia. 


TITLE    VI, 

COUNTIES   AND   COUNTY  OFFICERS. 

Chapter  34.  Counties  and  County  Commissioners. 

Chapter  35.  County  Treasurers,  State  Supervision  of  County  Accounts,  and  County  Finances. 

Chapter  36.  Registers  of  Deeds. 

Chapter  37.  Sheriffs.  ' 

Chapter  38.  Medical  Examiners. 


ANALYSIS  —  PART   I. 


TITLE    VII. 

CITIES,   TOWNS  AND   DISTRICTS. 

Chapter  39.  Municipal  Government. 

Chapter  40.  Powers  and  Duties  of  Cities  and  Towns. 

Chapter  41.  Officers  and  Employees  of  Cities,  Towns  and  Districts. 

Chapter  42.  Boundaries  of  Cities  and  Towns. 

Chapter  43.  City  Charters. 

Chapter  44.  Municipal  Finance. 

Chapter  45.  Public  Parks,  Playgroimds  and  the  Public  Domain. 

Chapter  46.  Return  and  Registry  of  Births,  Marriages  and  Deaths. 

Chapter  47.  Workhouses  and  Almshouses. 

Chapter  48.  Fires,  Fire  Departments  and  Fire  Districts. 

Chapter  49.  Fences,  Fence  Viewers,  Pounds  and  Field  Drivers. 


TITLE    VIII. 

ELECTIONS. 

Chapter  50.  General  Provisions  relative  to  Primaries,  Caucuses  and  Elections. 

Chapter  51.  Voters. 

Chapter  52.  PoUtical  Committees. 

Chapter  53.  Nominations,  Questions  to  be  submitted  to  the  Voters,  Primaries  and  Caucuses. 

Chapter  54.  Elections. 

Chapter  55.  Corrupt  Practices  and  Election  Inquests. 

Chapter  56.  Violations  of  Election  Laws. 

Chapter  57.  Congressional,  Councillor  and  Senatorial  Districts,  and  Apportionment  of  Rep- 
resentatives. 


TITLE    IX. 

TAXATION. 

Chapter  58.  General  Provisions  relative  to  Taxation. 

Chapter  59.  Assessment  of  Local  Taxes. 

Chapter  60.  Collection  of  Local  Taxes. 

Chapter  61.  Taxation  of  Forest  Lands. 

Chapter  62.  Taxation  of  Incomes. 

Chapter  63.  Taxation  of  Corporations. 

Chapter  64.  Taxation  of  Stock  Transfers. 

Chapter  65.  Taxation  of  Legacies  and  Successions. 


TITLE    X. 

PUBLIC   RECORDS. 


Chapter  66.     Public  Records. 


VI 


ANALYSIS  —  PART   I. 


TITLE    XI. 

CERTAIN   RELIGIOUS   AND   CHARITABLE   MATTERS. 

Chapter  67.     Parishes  and  Religious  Societies. 

Chapter  6S.     Donations  and  Conveyances  for  Pious  and  Charitable  Uses. 


Chapter  69. 
Chapter  70. 
Chapter  71. 
Chapter  72. 
Chapter  73. 
Chapter  74. 
Chapter  75. 
Chapter  76. 
Chapter  77. 
Chapter  78. 


Chapter  79. 
Chapter  80. 


Chapter  81. 
Chapter  82. 

Chapter  S3. 
Chapter  84. 
Chapter  85. 
Chapter  86. 
Chapter  87. 
Chapter  88. 
Chapter  89. 
Chapter  90. 
Chapter  91. 
Chapter  92. 


TITLE    XII. 

EDUCATION. 

Powers  and  Duties  of  the  Department  of  Education. 

School  Funds  and  Other  State  Aid  for  Public  Schools. 

Public  Schools.  I 

School  Registers  and  Returns. 

State  Normal  Schools. 

Vocational  Education. 

Massachusetts  Agricultural  College.  ' 

School  Attendance. 

School  Offenders  and  County  Training  Schools. 

Libraries. 

TITLE    XIII. 

EMINENT   DOMAIN   AND   BETTERMENTS. 

Eminent  Domain. 
Betterments. 

TITLE     XIV. 

PUBLIC  WAYS   AND   WORKS. 

State  Highways. 

The  Laying  Out,  Alteration,  Relocation  and  Discontinuance  of  Pubhc  Ways,  and 

Specific  Repairs  thereon. 
Sewers,  Drains  and  Sidewalks. 
Repair  of  Ways  and  Bridges. 

Regulations  and  By-laws  relative  to  Ways  and  Bridges. 

Boundaries  of  Highways  and  Other  Pubhc  Places,  and  Encroachments  thereon. 
Shade  Trees. 

Ferries,  Canals  and  Public  Landings. 
Law  of  the  Road. 
Motor  Vehicles  and  Aircraft. 
Waterways. 
Metropohtan  Sewers,  Water  and  Parks. 


Chapter  93. 
Chapter  94. 
Chapter    95. 


TITLE    XV. 

REGULATION  OF  TRADE. 

Regulation  of  Trade  and  Certain  Enterprises. 
Inspection  and  Sale  of  Food,  Drugs  and  Various  Articles. 
Measuring  of  Leather. 


ANALYSIS — PART   I. 


Vll 


Chapter    96.  Survey  of  Lumber. 

Chapter    97.  Surveying  of  Land. 

Chapter    98.  Weights  and  Measures. 

Chapter    99.  The  Metric  System  of  Weights  and  Measures. 

Chapter  100.  Auctioneers. 

Chapter  101.  Transient  Vendors,  Hawkers  and  Pedlers. 

Chapter  102.  Shipping  and  Seamen,  Harbors  and  Harbor  Masters. 

Chapter  103.  Pilots. 

Chapter  104.  Agents,  Consignees  and  Factors. 

Chapter  105.  Public  Warehouses. 

Chapter  106.  Sales  of  Personal  Property. 

Chapter  107.  Money  and  Negotiable  Instruments. 

Chapter  108.  BUls  of  Lading. 

Chapter  109.  Limited  Partnerships. 

Chapter  110.  Labels,  Trade  Marks,  Names  and  Registration  thereof. 


TITLE    XVI. 

PUBLIC  HEALTH. 
Chapter  111.     Public  Health. 

Chapter  112.     Registration  of  Certain  Professions  and  Occupations. 
Chapter  113.     Promotion  of  Anatomical  Science. 
Chapter  11-4.     Cemeteries  and  Burials. 


TITLE    XVII. 

PUBLIC  WELFARE. 

Chapter  115.  State  and  Mihtary  Aid,  Soldiers'  ReUef,  etc. 

Chapter  116.  Settlement  of  Paupers. 

Chapter  1 17.  Support  of  Paupers  by  Cities  and  Towns. 

Chapter  118.  Aid  to  Mothers  vrith  Dependent  Children. 

Chapter  119.  Protection  and  Care  of  Children,  and  Proceedings  against  Them. 

Chapter  120.  Massachusetts  Training  Schools. 

Chapter  121.  Powers  and  Duties  of  the  Department  of  PubUc  Welfare,  and  the  Massachusetts 

Hospital  School. 

Chapter  122.  State  Infirmary  and  State  Paupers. 

Chapter  123.  Commitment  and  Care  of  the  Insane  and  Other  Mental  Defectives. 


TITLE    XVIII. 

PRISONS,  IMPRISONMENT,  PAROLES  AND  PARDONS. 

Chapter  124.     Powers  and  Duties  of  the  Department  of  Correction. 
Chapter  125.     Penal  and  Reformatory  Institutions  of  the  Commonwealth. 
Chapter  126.     Jails,  Houses  of  Correction  and  Reformation,  and  County  Industrial  Farms. 
Chapter  127.     Officers   and   Inmates   of   Penal   and  Reformatory   Institutions.     Paroles   and 
Pardons. 


Vlll 


ANALYSIS PART    I. 


Vol.   II. 


TITLE    XIX. 

AGRICULTURE  AND  CONSERVATION. 

Chapter  128.  Agriculture. 

Chapter  129.  Animal  Industry. 

Chapter  130.  Powers  and  Duties  of  the  Division  of  Fisheries  and  Game.     Fisheries. 

Chapter  131.  Preservation  of  Certain  Birds  and  Animals.     Hunting  and  Fishing  Licenses. 

Chapter  132.  Forestry. 

TITLE    XX. 

PUBLIC   SAFETY  AND   GOOD   ORDER. 

Chapter  133.     Disposition  of  Old  and  Infirm  Animals. 

Chapter  134.     Lost  Goods  and  Stray  Beasts. 

Chapter  135.     Unclauned  and  Abandoned  Property. 

Chapter  136.     Observance  of  the  Lord's  Day. 

Chapter  137.     Gaming. 

Chapter  13S.     Intoxicating  Liquors  and  Certain  Non-Intoxicating  Beverages. 

Chapter  139.     Common  Nuisances. 

Chapter  140.     Licenses. 

Chapter  141.     Supervision  of  Electricians. 

Chapter  142.     Supervision  of  Plumbing. 

Chapter  143.  Inspection  and  Regulation  of,  and  Licenses  for,  Buildings,  Elevators  and  Cine- 
matographs. 

Chapter  144.     Tenement  Houses  in  Cities. 

Chapter  14.5.     Tenement  Houses  in  Towns. 

Chapter  146.  Inspection  of  Boilers,  Air  Tanks,  etc.  Licenses  of  Engineers,  Firemen,  and 
Operators  of  Hoisting  Machinery. 

Chapter  147.  State  and  Other  PoUce,  and  Certain  Powers  and  Duties  of  the  Department  of 
Public  Safety. 

Chapter  148.     Fire  Prevention. 


TITLE    XXI. 

LABOR  AND   INDUSTRIES. 

Chapter  149.  Labor  and  Industries. 

Chapter  150.  Conciliation  and  Arbitration  of  Industrial  Disputes. 

Chapter  151.  The  Minimum  Wage. 

Chapter  152.  AYorkmen's  Compensation. 

Chapter  153.  Liability  of  Employers  to  Employees  for  Injuries  not  resulting  in  Death. 

Chapter  154.  Assignment  of  Wages. 


ANALYSIS — -PART   II. 


IX 


TITLE     XXII. 

CORPORATIONS. 

Chapter  155.  General  Provisions  relative  to  Corporations. 

Chapter  156.  Business  Corporations. 

Chapter  157.  Co-operative  Corporations. 

Chapter  158.  Certain  Miscellaneous  Corporations. 

Chapter  159.  Common  Carriers. 

Chapter  160.  Railroads. 

Chapter  161.  Street  Railways. 

Chapter  162.  Electric  R.ailroadg. 

Chapter  163.  Trackless  Trolley  Companies. 

Chapter  164.  Manufacture  and  Sale  of  Gas  and  Electricity. 

Chapter  165.  Water  and  Aqueduct  Companies. 

Chapter  166.  Telephone    and    Telegraph    Companies,    and    Lines    for    the    Transmission   of 

Electricity. 

Chapter  167.  Banks  and  Banking. 

Chapter  168.  Savings  Banks. 

Chapter  169.  Deposits  with  Others  than  Banks. 

Chapter  170.  Co-operative  Banks. 

Chapter  171.  Credit  Unions. 

Chapter  172.  Trust  Companies. 

Chapter  173.  Mortgage  Loan  Investment  Companies. 

Chapter  174.  Bond  and  Investment  Companies. 

Chapter  175.  Insurance. 

Chapter  176.  Fraternal  Benefit  Societies. 

Chapter  177.  Assessment  Insurance. 

Chapter  178.  Savings  Bank  Life  Insurance. 

Chapter  179.  Proprietors  of  Wharves,  Real  Estate  lying  in  Common,  and  General  Fields. 

Chapter  ISO.  Corporations  for  Charitable  and  Certain  Other  Purposes. 

Chapter  181.  Foreign  Corporations. 

Chapter  1S2.  Voluntary  Associations. 


PART    II. 

REAL  AND   PERSONAL  PROPERTY  AND  DOMESTIC  RELATIONS. 


TITLE     I. 

TITLE   TO   RE.4L  PROPERTY. 

Chapter  183.     Alienation  of  Land. 

Chapter  184.     General  Provisions  relative  to  Real  Property. 

Chapter  185.     The  Land  Com-t  and  Registration  of  Title  to  Land. 


ANALYSIS  —  PART   II. 


Chapter  186. 
Chapter  187. 
Chapter  188. 
Chapter  189. 


Estates  for  Years  and  at  Will. 

Easements. 

Homesteads. 

Dower  and  Curtesy. 


TITLE    II. 

DESCENT    AND    DISTRIBUTION,     WILLS,     ESTATES    OF    DECEASED    PERSONS 
AND  ABSENTEES,   GUARDIANSHIP,  CONSERVATORSHIP  AND  TRUSTS. 

Chapter  190.     Descent  and  Distribution  of  Real  and  Personal  Property. 

Chapter  191.     Wills. 

Chapter  192.     Probate  of  Wills  and  Appointment  of  Executors.  *  I 

Chapter  193.     Appointment  of  Administrators. 

Chapter  194.     Public  Administrators. 

Chapter  195.     General  Provisions  relative  to  Executors  and  Administrators. 

Chapter  196.     Allowances  to  W'idows  and  Children,  and  Advancements. 

Chapter  197.     Payment  of  Debts,  Legacies  and  Distributive  Shares. 

Chapter  198.     Insolvent  Estates  of  Deceased  Persons. 

Chapter  199.     Settlement  of  Estates  of  Deceased  Non-Residents. 

Chapter  200.     Settlement  of  Estates  of  Absentees. 

Chapter  201.     Guardians  and  Conservators. 

Chapter  202.  Sales,  Mortgages  and  Leases  of  Real  Estate  by  Executors,  Administrators, 
Guardians  and  Conservators. 

Chapter  203.     Trusts.  i 

Chapter  204.  General  Provisions  relative  to  Sales,  Mortgages,  Releases,  Compromises,  etc.,  by 
Executors,  etc. 

Chapter  20.5.  Bonds  of  E.xecutors,  Administrators,  Guardians,  Conservators,  Trustees  and 
Receivers. 

Chapter  206.  Accounts  and  Settlements  of  Executors,  Administrators,  Guardians,  Con- 
servators, Trustees  and  Receivers. 


TITLE    III. 

DOMESTIC   RELATIONS. 
Chapter  207.     Marriage. 
Chapter  208.     Divorce. 
Chapter  209.     Husband  and  Wife. 
Chapter  210.     Adoption  of  Children  and  Change  of  Names. 


ANALYSIS  —  PART   III. 


XI 


PART    III. 

COURTS,  JUDICIAL  OFFICERS  AND  PROCEEDINGS  IN  CIVIL  CASES. 


TITLE     I. 

COURTS   AND   JUDICIAL  OFFICERS. 

(For  the  Land  Court  see  Chapter  185.) 

Chapter  211.  The  Supreme  Judicial  Court. 

Chapter  212.  The  Superior  Court. 

Chapter  213.  Provisions  Common  to  the  Supreme  Judicial  and  Superior  Courts. 

Chapter  214.  Equity  Jurisdiction  and  Procedure  in  the  Supreme  Judicial  and  Superior  Courts 

Ceapter  215.  Probate  Courts. 

Chapter  216.  Courts  of  Insolvency. 

Chapter  217.  Judges  and  Registers  of  Probate  and  Insolvency. 

Chapter  218.  District  Courts. 

Chapter  219.  Trial  Justices. 

Chapter  220.  Courts  and  Naturalization. 

Chapter  221.  Clerks,  Attorneys  and  Other  Officers  of  Judicial  Coiu-ts. 

Chapter  222.  Justices  of  the  Peace,  Notaries  PubUo  and  Commissioners. 


TITLE    II. 

ACTIONS  AND  PROCEEDINGS  THEREIN. 

Chapter  223.  Commencement  of  Actions,  Service  of  Process. 

Chapter  224.  Arrest  on  Civil  Process. 

Chapter  225.  Process  after  Judgment  for  Necessaries  or  Labor. 

Chapter  226.  Bail. 

Chapter  227.  Proceedings  against  Absent  Defendants  and  upon  Insufficient  Service. 

Chapter  228.  Survival  of  Actions  and  Death  and  Disabilities  of  Parties. 

Chapter  229.  Actions  for  Death  and  Injuries  resulting  in  Death. 

Chapter  230.  Actions  by  and  against  Executors  and  Administrators. 

Chapter  231.  Pleading  and  Practice. 

Chapter  232.  Set-off  and  Tender. 

Chapter  233.  Witnesses  and  Evidence. 

Chapter  234.  Juries. 

Chapter  235.  Judgment  and  E.Kecution. 

Chapter  236.  Levy  of  Executions  on  Land. 


TITLE    III. 

REMEDIES   RELATING   TO   REAL   PROPERTY. 


Chapter  237.  Writs  of  Entry. 
Chapter  238.  Writs  of  Dower. 
Chapter  239.     Summary  Process  for  Possession  of  Land. 


xu 


ANALYSIS  - 


PART   III. 


Chapter  240.  Proceedings  for  Settlement  of  Title  to  Land. 

Chapter  241.  Partition  of  Land. 

Chapter  242.  Waste  and  Trespass. 

Chapter  243.  Actions  for  Private  Nuisances. 

Chapter  244.  Foreclosure  and  Redemption  of  Mortgages. 

Chapter  245.  Informations  by  the  Commonwealth. 


TITLE    IV. 

CERTAIN   WRITS   AND   PROCEEDINGS   IN   SPECIAL   CASES. 

Chapter  246.  Trustee  Process. 

Chapter  247.  Replevin. 

Chapter  248.  Habeas  Corpus  and  Personal  Liberty. 

Chapter  249.  Audita  Querela,  Certiorari,  Mandamus  and  Quo  Warranto. 

Chapter  2.50.  Writs  of  Error,  Vacating  Judgment,  Writs  of  Review. 

Chapter  251.  Arbitration. 

Chapter  252.  Improvement  of  Low  Land  and  Swamps. 

Chapter  253.  Mills,  Dams  and  Reservoirs. 

Chapter  254.  Liens  on  Buildings  and  Land. 

Chapter  255.  Mortgages,  Conditional  Sales  and  Pledges   of   Personal   Property,   and   Liens 

thereon. 

Chapter  256.  Recognizances  for  Debts. 

Chapter  257.  Seizure  and  Libelling  of  Forfeited  Property. 

Chapter  258.  Claims  against  the  Commonwealth. 


TITLE    V. 

STATUTES  OF  FRAUDS  AND  LIMITATIONS. 

Chapter  259.     Prevention  of  Frauds  and  Perjuries. 
Chapter  260.     Limitation  of  Actions. 


TITLE    VI. 

COSTS  AND   FEES. 

Chapter  261.     Costs  in  Civil  Actions. 
Chapter  262.     Fees  of  Certain  Officers. 


ANALYSIS  —  PARTS   IV.   AND  V. 


XIH 


PART    lY. 

CRIMES,  PUNISHMENTS  AND  PROCEEDINGS  IN  CRIMINAL  CASES. 


TITLE     I. 

CRIMES   AND   PUNISHMENTS. 

Chattek  263.  Rights  of  Persons  accused  of  Crime. 

Chapter  264.  Crimes  against  Governments. 

Chapter  265.  Crimes  against  the  Person. 

Chapter  266.  Crimes  against  Property. 

Chapter  267.  Forgery  and  Crimes  ag.ainst  the  Currency. 

Chapter  268.  Crimes  against  Public  Justice. 

Chapter  269.  Crimes  against  Public  Peace. 

Chapter  270.  Crimes  against  Public  Health. 

Chapter  271.  Crimes  against  Public  Policy. 

Chapter  272.  Crimes  against  Chastity,  Morality,  Decency  and  Good  Order. 

Chapter  273.  Desertion,  Non-Support  and  Bastardy. 

Chapter  274.  Felonies,  Accessories  and  Attempts  to  commit  Crimes. 


TITLE    II. 

PROCEEDINGS  IN  CRIMINAL  CASES. 

Chapter  275.  Proceedings  to  prevent  Crimes. 

Chapter  276.  Search  Warrants,  Rewards,  Fugitives  from  Justice,  Arrest,  Examination,  Com- 
mitment and  Bail.     Probation  Officers  and  Commission  on  Probation. 

Chapter  277.  Indictments  and  Proceedings  before  Trial. 

Chapter  278.  Trials  and  Proceedings  before  Judgment. 

^Chapter  279.  Judgment  and  Execution. 

Chapter  280.  Fines  and  Forfeitures. 


PART    Y. 


the  general  laws,  and  express  repeal  of  certain  acts  and 

resol\t;s. 


Chapter  281.     The  General  Laws  and  their  Effect. 
Chapter  282.     Express  Repeal  of  Certain  Acts  and  Resolves. 


GENEKAL    LAAYS 


MASSACHUSETTS 


1292 


AGRICULTURE. 


[Chap.  128. 


TITLE    XIX. 

AGRICULTURE  AND   CONSERVATION. 

Chapter  128.    Agriculture. 

Chapter  129.     Animal  Industry. 

Chapter  130.     Powers  and  Duties  of  the  Division  of  Fisheries  and  Game. 

Fisheries. 
Chapter  131.    Preservation  of  Certain  Birds  and  Animals.    Hunting  and 

Fishing  Licenses. 
Chapter  132.     Forestry. 


CHAPTER    128. 

AGRICULTURE. 


Sect. 


definitions. 


1.  Definitions. 

DEPARTMENT    AND    COMMISSIONER. 

2.  Certain  powers  and  duties  defined. 

3.  May  collect   and   publish   information 

on  available  lands. 

4.  Duties  of  department. 
6.  Annual  report. 

6.  Lectures  and  publications. 

7.  Preparation   and    distribution    of    cer- 

tain posters. 

8.  May    enforce    provisions    relative    to 

packing,  etc.,  of  apples. 

DEMONSTRATION    SHEEP    FARMS. 

9.  Establishment  of  demonstration  sheep 

farms. 

10.  Conduct  of  farms. 

11.  Compensation  from  the  commonwealth. 

DIVISION    OF    DAIRYING    AND     ANIM.AL     HUS- 
BANDRT. 

12.  Duties    of    division    of    dairj'ing    and 

animal  husbandry. 

13.  Division   of   dairying,    etc.,    to    report 

unsanitary  conditions. 

DUTIES,  ETC.,  OP    EMPLOYEES. 

14.  Department  to  have  access  to  certain 

places. 

15.  Employees  and  their  duties. 


Sect. 

director  of  the  division  of  plant  pest 

CONTROL. 

16.  May  enter  public  or  private  grounds. 

17.  Inspection  of  nurseries  and  certificates. 

18.  Nursery  agents  to  be  licensed. 

19.  Sale,  etc.,  of  nursery  stock  regulated. 

20.  Transportation  of  nursery  stock,  etc. 

21.  Director    may    inspect    all    stock    and 

fruits  coming  into  commonwealth. 

22.  Protection   against   white   pine   blister 

rust. 

23.  Compensation    provided    for   damages 

incident  to  checking  spread  of  white 
pine  blister  rust. 

24.  Inspection  of  orchards,  etc.,  and  pro- 

cedure. 

25.  Appeal  may  be  taken. 

26.  Proceedings  after  appeal. 

27.  Powers  of  director. 

28.  Gypsy   and    brown   tail   moth   control 

exempted. 

29.  Penalty. 

30.  Prosecutions. 

31.  European  corn  borer,  etc.    Penalty. 


INSPECTOR    or   APIARIES. 

32.  Duties  of  inspector. 

33.  Keeping  of  bees  prohibited  in  certain 

cases,  etc. 

34.  Quarantine  and  treatment  of  diseased 

bees. 

35.  Regulations    concerning    shipping    or 

transportation  of  bees,  etc. 


Chap.  128.] 


AGRICULTXJKE. 


1293 


Sect. 

36.  Access  by  inspector  and  assistants  to 

apiaries,  etc. 

37.  Record  to  be  kept,  etc. 

38.  Penalty. 

DIRECTOR  OF  THE  DIVISION  OP  ORNITHOLOGY. 

39.  Director  of  the  division  of  ornithology, 

duties,  etc. 

TRUSTEES     FOR     COUNTY     AID    TO     AGRICUL- 
TURE. 

40.  Trustees  for  county  aid  to  agriculture. 

Treasurer.     Audit  of  accounts.     Re- 
port. 

41.  Directors,  how  chosen. 


Sect. 

42.  Trustees,  expenditures. 

Trustees,    appointment    of   instructors 
by. 

Trustees  to  prepare  budget. 

Towns  may  take  land. 


43 


AGRICULTURAL      AND      HORTICULTURAL      SO- 
CIETIES, ETC. 

4G.  Agricultural,     etc.,     societies,     assign- 
ment of  police  at  exhibitions,  etc. 

47.  Farmers'  clubs  to  receive  publications, 

etc. 

48.  Preservation  of  peace. 

49.  Booths,  etc.,  gaming,  etc.,  prohibited. 

50.  Penalty. 


DEFINITIONS. 

1  Section  1.     The  following  words  as  used  in  this  chapter  shall  have  Definitions. 

2  the  following  meanings  unless  the  context  otherwise  requires:    "Com-  igit^ll^'i^f' 

3  missioner",  the  commissioner  of  agriculture.     "Department",  the  de-gg^f^^*- 

4  partment  of  agriculture.     "Director",  in  sections  sixteen  to  thirty-one, 

5  inclusive,  the  director  of  the  division  of  plant  pest  control.    "  Inspector  ", 

6  in  sections  thirty-two  to  thirty-eight,  inclusive,  the  inspector  of  apiaries. 

7  "Trustees",  the  trustees  for  county  aid  to  agriculture. 


DEPARTMENT   AND   COMMISSIONER. 


The  department  through  its  proper  divisions  shall  have  certain  powers 

and  duties 
defined. 


1918,  241. 

1919,  350, 
S§  34.  38. 

1  Op.  A.  G,  382. 

2  0p.  A.  G.  118. 


1  Section  2 

2  power  to — 

3  (a)  Execute  and  carry  into  effect  the  laws  relative  to  dairy  products,  a^l.'i6,^S5.^ 

4  animal  breeding,   apple  grading,  plant  pest  control  except  the  gypsy  J'gg^f  4°'2^  in 

5  and  brown  tail  moth,  ornithology,  apiary  inspection,  and  the  produc-  ?sgf?' 

6  tion,  storage,  marketing  and  distribution  of  agricultural  products.  iaoo,  428. 

7  (6)  Aid  in  the  promotion  and  development  of  the  agricultural  re-  1912!  4il 

8  sources  of  the  commonwealth  and  the  improvement  of  conditions  of  rural  Wu.  267!  298.' 

9  life,  the  settlement  of  farms  and  the  distribution  of  the  supply  of  farm  H"  ''*'  ^  "• 

10  labor. 

11  (c)  Investigate  the  cost  of  production  and  marketing  in  all  its  phases, 

12  and  the  sources  of  supply,  of  agricultural  products,  and  the  production, 

13  transportation,  storage,  marketing  and  distribution  of  agricultural  prod- 

14  ucts  sold,  offered  for  sale,  stored  or  held  within  the  commonwealth. 

15  (d)  Collect  and  disseminate  data  and  statistics  as  to  the  food  pro- 

16  duced,   stored  or  held  withm  the  commonwealth,  with  the  quantities 

17  available  from  time  to  time  and  the  location  thereof. 

18  (e)  Investigate   and   aid  improved  methods  of  co-operative  produc- 

19  tion,    marketing   and  distribution  of  agricultural  products  within  the 

20  commonwealth. 

21  (/)  Offer  prizes  for  and  conduct  exhibits  of  flowers,  fruit,  vegetables, 

22  grasses,  grains  or  other  farm  crops,  dairy  products,  honey,  horses,  cattle, 

23  sheep,  swine,  poultry,  poultry  products,  farm  operations,  and  canned 

24  and  dried  fruits  and  vegetables. 

25  It  may  also  publish  annually  a  leaflet  relative  to  trees  and  birds,  which 

26  shall  be  approved  by  the  commissioner  of  education,  and  may  distribute 

27  the  same  to  the  superintendents  and  teachers  of  rural  and  suburban 

28  public  schools  prior  to  Arbor  and  Bird  Day. 


1294 


AGRICULTURE. 


[Chap.  128. 


May  collect 

and  publish 

information  on 

available 

lands. 

1909,  212,  §  1. 

1919,  350,  §  34. 


Section  3.     The  department  may  collect  all  necessary  information  1 

in   regard   to   the  opportunities   for   developing  agricultural   resources  2 

tlirough  the  reoccupancy  of  idle  or  partly  improved  farms  and  farm  3 

land,  and  may  cause  the  facts  so  obtained,  and  a  statement  of  the  ad-  4 

vantages  offered,  to  be  cu-culated  where  and  how  it  deems  for  the  best  5 

interest  of  the  commonwealth.  6 


Duties  of 
department. 
1852,  142,  §  3, 
G.  S.  le,  §  5. 
P.  S.  20,  §  6. 


Section  4.  The  department  may  take  and  hold  in  trust  gifts  or  1 
bequests  to  it  for  promoting  agricultural  education  or  the  general  in-  2 
terests  of  husbandry.         R.  l.  89,  §  6.  igis,  2gs,  §  i.  i9i9, 350,  §  34.  3 


Annual  report. 
1852,  142,  §  4. 
G.  .S.  Hi,  5  7. 
P.  S.  20.  5  8. 
1891,412, 
§S  8,  10. 
1895,  214. 
1901,  130. 
R.  L.  9,  §  7; 
89,  §§  8,  12. 
1908,410,  §  1. 
1910.  653,  §  7. 
1911,220,  §  8. 
1914,  291,  §  1. 
1918,  2tiS,  §  1. 
1919,350,  §§8 
34,  35.  37. 


Section  5.     The  department  shall  make  an  annual  report,  including  1 

the  number  of  agents,  assistants,  experts  and  chemists  employed  in  the  2 

division  of  dairying  and  animal  husbandry  with  their  expenses  and  dis-  3 

bursements,  of  all  investigations  made  by  the  division,  of  all  cases  prose-  4 

cuted  with  the  results  thereof  and  other  information  advantageous  to  5 

the  dairy  industry.    There  shall  be  included  the  report  of  the  inspector  6 

of  apiaries.  7 

Such  parts  of  the  report  as  the  commissioner  deems  best  adapted  to  8 

promote  the  interests  of  agriculture  may  be  published  separatelj^  for  9 

general  distribution.  10 


Lectures  and 
publications. 
1SI«,  9fi,  §  2. 
P.  .S.  20,  §  4. 
1884,  66. 


Section  6.  The  commissioner  may  arrange  for  lectures  before  the  1 
department,  and  may  issue  for  general  distribution  such  publications  as  2 
he  considers  best  adapted  to  promote  the  interests  of  agriculture.  3 


R.  L.  89,  §  4. 
1911,  186. 


191.5,  250. 
1910,  46,  §  2. 


1917,  286. 
1919,  350,  i 


1  34,  35. 


Preparation 
and  distribu- 
tion of  certain 
posters. 
1004,  444, 
H2,3. 
1914,239. 
1915,  140. 
1919,  3.50,  5  35. 
1920,202:  231. 


Section  7.     The  commissioner  shall  cause  to  be  printed  on  durable  1 

material,  suitable  to  be  affixed  to  trees  or  otherwise  to  be  posted  in  the  2 

open  air,  copies  of  such  extracts  from  sections  one  hundred  and  five,  3 

one  hundred  and  thirteen,  one  hundred  and  fifteen,  one  hundred  and  4 

seventeen,  one  hundred  and  twenty-two  and  one  hundred  and  thirty-  5 

one  of  chapter  two  hundred  and  sixtj'-six  as  in  his  opinion  will  tend  6 

to  prevent  depredations  on  farm  and  forest  lands,  and  shall  furnish  a  7 

reasonable  number  of  such  copies  to  any  owner  or  tenant  of  land,  8 

upon  application,  at  a  price  not  less  than  the  cost  thereof.  9 


proviSonTrd-        SECTION  8.    The  Commissioner  may  enforce  sections  one  hundred  to     1 
ative  to  pack-    Qj^g  huiidrcd  and  seven,  inclusive,  one  hundred  and  nine  and  one  hundred     2 

ing,  etc.,  ot  '  ^  ' 

apples.  and  twelve  of  chapter  ninety-four  and  prosecute  all  violations  thereof.       3 

1918,  169,  §  3.  1919,  350,  §  35. 


Establishment 
of  demonstra- 
tion sheep 
farms. 

1919,  256,  §  1; 
350,  §§  34,  35. 


DEMONSTRATION    SHEEP    FARMS. 

Section  9.    The   department   may   establish   demonstration  -sheep  1 

farms  in  such  places  as  may  be  selected  by  the  commissioner.    Such  a  2 

farm  may  be  established  in  co-operation  with  the  owner  of  any  farm  3 

who  is  desirous  of  conducting  it  in  conformity  with  this  and  the  two  4 

following  sections.  6 


Conduct  of  Section  10.     Each  person  conducting  a  demonstration  sheep  farm     1 

llo'iTh^st'    ^'^^''  maintain  under  the  supervision  of  and  in  accordance  with  such    2 

rules  and  regulations  as  may  be  prescribed  by  the  commissioner,  a     3 


ClL\P.    128.]  AGRICULTURE.  1295 

4  flock  of  not  less  than  twenty  sheep  and  under  his  direction  may  from 

5  time  to  time  purchase  and  sell  such  sheep  as  may  be  considered  es- 

6  sential  to  the  proper  development  of  the  industry  in  the  locality  of 

7  such  farm,  the  sheep  so  purchased  or  sold  to  be  passed  upon  by  the 

8  di^^sion  of  animal  industry  of  the  department  of  conservation  as  to 

9  their  condition  and  freedom  from  disease. 

1  Section  11.    The  owner  of  every  such  farm  shall  receive  a  reason-  compensation 

2  able  compensation  froifi  the  commonwealth  for  the  use  of  the  farm  as  TOmm'o^nweaith. 

3  such  demonstration  sheep  farm,  for  the  labor  and  expense  involved  in  ^^^^'  ^^^'  ^  ^■ 

4  carryins  out  this  and  the  two  preceding  sections,  and  for  any  loss  in- 

5  volved  in  the  purchase  or  sale  of  sheep  made  in  accordance  with  the 

6  preceding  section. 

DIVISION   OF  DAIRYING   AND   ANIM.AL   HUSBANDRY. 

1  Section  12.     The  di\ision  of  dairying  and  animal  husbandry,  under  Duties  of 

2  the  general  direction  of  the  commissioner,  shall  inquire  into  the  methods  dairy°ng°ind 

3  of  making  butter  and  cheese  in  creameries  or  cheese  factories,  investi-  bUndry.'""" 

4  gate  all  dairy  products  and  imitation  dairy  products  bought  or  sold,  |§^7;i""ii. 

5  enforce  the  laws  for  the  manufacture,  transfer  and  sale  of  such  prod-  f^J'i^i^a 

6  ucts,  and   take   such  action  as  will  tend  to  produce  a  better  quality  j^9g'4P,%M- 

7  thereof  and  to  improve  the  dairy  industry.     It  may  co-operate  with  wioisso, 

8  the  department  of  public  health  and  with  inspectors  of  milk,  but  it  4jDp!'a.'g.  ' 

9  shall  not  interfere  with  the  duties  of  such  department  or  officers.  ^'^' 

1  Section  13.    The  di\'ision   shall  report  to  the  director  of  animal  Division  of 

2  industry  each  case  brought  to  its  attention  where  any  barn,  stable  or  to'repOTtun-" 

3  other  enclosure,  where  neat  cattle,  other  ruminants  or  swine  are  kept,  dttion"^^  '°^' 

4  is  found  in  an  unsanitary  condition.       i9ii,  ssi,  §  2.  1919, 350,  §§  37, 39. 


1 


DUTIES,    ETC.,    OF   EMPLOYEES. 

Section  14.     The  department  and  its  employees  shall  have  access  Department 

2  to  each  place  used  in  the  manufacture,  transportation  or  sale  of  dairy  to  cmain""'^^ 

3  products  or  imitations  thereof,  and  to  each  vessel  and  can  used  in  such  ?I,tj'\';^4i2, 

4  manufacture,    transportation  and   sale,   and   shall   have  the  authority  flg*^'  ^jIq  §  5 

5  given  to  the  department  of  public  health  or  its  officers,  or  to  inspectors  f^^^-  |^'g5 13- 

6  of  milk,  to  enforce  and  prosecute  violations  of  all  laws  relating  to  dairy  §§  i".'2, 4.' 

7  products  or  imitations  thereof.    Whoever  hinders,  obstructs,  or  in  any  §"§  34, 44,'  96. 

8  way  interferes  with  an  officer  or  duly  authorized  agent  of  the  department 

9  in  the  performance  of  his  duty  shall  be  punished  for  a  first  offence  by 

10  a  fine  of  one  hundred  dollars  and  for  a  subsequent  ofi'ence  by  a  fine  of 

11  two  hundred  dollars,  to  the  use  of  the  commonwealth. 

1  Section  15.     Employees   of   the   department   shall   visit   towns   to  Employees  and 

2  inquire  into  the  methods  and  needs  of  practical  husbandry,  ascertain  isl'g,  203',!' 1. 

3  the  adaptation  of  agricultural  products  to  soil,  climate  and  markets,  p.l.2o,'|?6. 

4  encourage   the   establishment  of   farmers'    clubs,   agricultural   libraries  Hiis^les^* 

5  and  reading  rooms,  disseminate  useful  information  in  agriculture  by  fljg  350  534 

6  lectures  or  otherwise,  and  annually  in  October  make  detailed  reports 

7  to  the  commissioner. 


1296 


AGRICULTURE. 


[Chap.  128. 


May  enter 
public  or  pri- 
vate grounds. 
1902,  495,  §  6. 
1909,  444, 
§§  15,  17. 
1912,  507, 
§§  14,  16. 

Inspection  of 
nurseries  and 
certificates. 
1902,  495, 
§§2,6. 
1909,  444, 
H  2,  15,  17. 
1912,  507, 
§§  2,  14,  16. 
1919,350, 
§37. 

Penalty,  §  29. 


Nursery  agents 
to  be  licensed. 
1909,  444,  §  3. 
1912,  507, 
§§  3,  16. 
1916,  91,  §  1. 

1918,  268, 
§§1,4. 

1919,  350, 

§§  34,  .35,  37. 

Penalty,  §  29. 


DIRECTOR   OF  THE   DIVISION   OF   PLANT   PEST   CONTROL. 

Section  16.    The  director  of  the  division  of  plant  pest  control,  and  1 

his  assistants,  may  at  all  times  enter  any  public  or  private  grounds  in  2 

the  performance  of  any  duty  required  by  sections  seventeen  to  thirty-  3 

one,  inclusive.                                      1919, 350,  §  37.  4 

Section  17.    The  said  director,  either  personally  or  through  hi.s  as-  1 

sistants,  shall  inspect  at  least  once  each  year  each  nursery  or  place  2 

where  nursery  stock  is  grown,  and  if  no  dangerous  insects  or  fungous  3 

pests  are  found  therein,  he  shall  give  a  certificate  to  that  effect.     If  4 

such  pests  are  found  therein  the  owner  of  the  stock  shall  take  such  5 

measures  to  suppress  the  same  as  the  director  shall  prescribe,  and  no  6 

certificate  shall  be  given  until  he  has  satisfied  himself  by  a  subsequent  7 

inspection  that  all  such  pests  have  been  suppressed.     He  shall  deter-  8 

mine  the  season  for  inspecting  nurseries  and  the  form  of  certificates  9 

to  be  given  but  in  no  case  shall  he  issue  a  certificate  to  continue  in  force  10 

after  July  first  next  following  the  date  of  inspection.  11 

Section  18.     Each  agent  or  other  person,  except  a  grower,  who  sells  1 

nursery  stock  shall  make  application  to  the  director  for  an  agent's  li-  2 

cense,  and  shall  file  with  him  the  names  and  addresses  of  all  persons  3 

or  nurseries  from  which  he  purchases  liis  stock.     On  receipt  of  such  4 

application,  the  director  shall  issue  an  agent's  license,  valid  for  one  5 

year,  in  such  form  and  with  such  provisions  as  the  department  pre-  6 

scribes.    The  license  may  be  revoked  at  any  time  for  failure  to  report  7 

the  names  and  addresses  of  persons  or  nurseries  from  which  stock  is  8 

purchased,  or  for  such  other  cause  as  may  be  deemed  sufficient  by  the  9 

director  and  the  commissioner.    Each  person  except  a  grower  who  sells,  10 

or  who  takes  or  solicits  orders  for,   nursery  stock  shall  be  regarded  11 

as  a  nursery  agent  for  the  purposes  of  sections  eighteen  to  thirty-one,  12 

inclusive.  13 


Sale,  etc.,  of 
nurser.v  stock 
regulated. 
1902,  495, 
§§3,4. 
1909,  444, 
§§4,17. 
1912,  507, 
§§  4,  16. 
1919,  350,  §  34. 

Penalty,  §  29. 


Transportation 
of  nursery 
stock,  etc. 
1902,  495,  §  5. 
1907,  321,  §  2. 
1909,  444, 
§§  6,  17. 
1912,  507, 
§§5,16. 
1919,331; 
§37. 

Penalty,  §  29. 


350, 


Section  19.     No  person   shall   sell,  exchange,  give,  deliver  or  ship  1 

within  the  commonwealth  any  tree,  slirub  or  plant  commonly  known  as  2 

nursery  stock   unless   such   person   holds  a  grower's   certificate   under  3 

section  seventeen  or  an  agent's  license  under  the  preceding  section,  and  4 

unless  a  copy  of  such  certificate  or  license,  or  such  other  evidence  as  the  5 

department  prescribes,  shall  accompany  each  car,  box,  bundle  or  pack-  6 

age  sold,  exchanged,  given,  delivered  or  shipped,  and  unless  such  cer-  7 

tificate  or  license  is  dated  within  twelve  months  of  the  date  of  such  8 

delivery  or  shipment;    but  this  section  shall  not  prohibit  the  selling,  9 

giving  or  exchanging  of  trees,  plants  or  shrubs  by  any  person  who  is  not  10 

a  grower  of,  dealer  in,  or  agent  for  nursery  stock.  11 

Section  20.     No  nursery  stock  shall  be  brought  mto  the  common-  1 

wealth  unless  it  bears  an  unexpired  certificate  of  inspection.    Each  per-  2 

son  bringing  into  the  commonwealth,  or  receiving  for  transportation  3 

to  a  point  within  the  commonwealth  from  outside  thereof,  any  car,  box,  4 

bundle,  package  or  consignment  in  any  form,  of  living  trees,  shrubs  or  5 

plants  commonly  knowm  as  nursery  stock,  shall  immediately  notify  the  6 

director  of  the  fact  that  such  consignment  has  been  received  by  him  and  7 

give  the  name  and  address  of  the  consignee,  together  with  such  further  8 

report  as  may  be  lawfully  required  by  the  director.  9 


Chap.  128.]  agriculture.  1297 

1  Section  21.     The  director,  either  personally  or  through  his  assist-  Director  may 

2  ants,  may  inspect  at  its  point  of  destination  all  nursery  stock  coming  "tuurand 

3  into  the  commonwealth,  and  if  such  stock  is  found  to  be  infested  with  Ij^^to  common- 

4  injurious  insects  or  plant  disease  he  may  cause  it  to  be  destroyed,  treated  lj'go<l*444,  §  7 

5  or  returned  to  the  consignor  at  the  consignor's  expense.    He  may,  either  J^'lfg'' 

6  personally  or  through  his  assistants,  inspect  all  fruits  brought  into  the  wis.  is'i, 

7  commonwealth  from  outside  thereof  which  were  grown  on  plants,  shrubs  isio.  91.  §  5. 

8  or  trees  of  any  kind  which  also  grow  out  of  doors  in  this  commonwealth,  §§  ii':?-.' 

9  and,  if  such  fruits  are  found  to  be  infested  with  injurious  insects  or  plant  Penalty.  §  29. 

10  disease  lil'cely  to  become  established  herein,  he  may  cause  such  fruits 

11  to  be  destroyed,  treated  or  returned  to  the  consignor  at  the  consignor's 

12  expense. 

13  Each  person,  except  a  common  carrier,  who  receives,  brings  or  causes 

14  to  be  brought  into  this  commonwealth  any  such  fruits  from  such  states, 

15  provinces  or  countries  as  may  be  designated  by  the  commissioner,  shall 

16  immediately  after  the  arrival  of  such  fruits  notify  the  director  of  such 

17  arrival,  and  hold  the  same  until  they  have  been  duly  inspected. 

1  Section  22.     If  the  director,  either  personally  or  through  his  as-  Protection 

2  sistants,  finds  ribes  or  five  leaved  pines  which  are  either  infected  with  pmo  bLto' " 

3  white  pine  blister  rust,  or  so  situated  that  in  his  opinion  they  are  likely  'igfj,  263,  ^  2. 

4  to  become  so  infected,  he  or  his  assistants  may  forthwith  destroy  or  cause  ^^^^-  ^^°'  ^  ^''• 

5  to  be  destroyed  such  ribes  or  five  leaved  pines.     In  carrying  out  his 

6  duties  under  this  section  the  director  shall  co-operate  with  the  state  for- 

7  ester,  local  tree  wardens,  moth  superintendents,  city  foresters  and  forest 

8  wardens. 

1  Section  23.     The  owner  of  any  cultivated  berry-bearing  slirubbery  compensation 

2  destroyed  by  the  director  or  his  assistants  under  the  two  preceding  damages  ind- 

3  sections  shall   receive  compensation   therefor  from  the  commonwealth,  fn "spread  o'f' 

4  provided  that  he  has  given  written  notice  thereof  to  the  director  within  y*'g'Jgr''rust 

5  thirty  days  after  the  accrual  of  his  claim  to  compensation.     The  di-  }g j|' I50' Is  s.s 

6  rector  or  an  assistant  shall  thereupon  investigate  the  same,  and  if  the  di-  37.  '      ' 

7  rector  does  not  agree  with  the  claimant  as  to  the  validity  of  his  claim 

8  or  as  to  the  amount  thereof,  the  question  at  issue  shall  be  determined 

9  by  three  arbitrators  who  shall  be  the  commissioner,  the  state  forester, 
10  and  an  assistant  attorney  general  to  be  designated  by  the  attorney  gen- 
ii eral.     Any  award  of  damages  made  by  said  arbitrators,  together  with 

12  the  cost  of  the  appraisal,  shall  be  certified  to  the  state  auditor,  and  shall 

13  thereupon  be  paid  by  the  commonwealth  in  the  same  manner  as  other 

14  claims. 

1  Section  24.     The  director,  either  personally  or  through  his  assist-  inspectio.n  of 

2  tants,  may  inspect  any  orchard,  field,  garden,  roadside  or  other  place  and  procedure. 

3  where  trees,  shrubs  or  other  plants  exist,  whether  on  public  or  private  I909;  444,'  ^  *' 

4  property,  which  he  may  know  or  have  reason  to  suspect  is  infested  with  flilVo?, 

5  the  San  Jose  scale  or  any  serious  insect  pests  or  plant  disease,  when  in  ^^^^  Jj'j  ^  ^ 

6  his  judgment  such  pests  or  disease  are  likely  to  cause  loss  to  adjoining  ^gj^.^^^j'^ ^gl' 

7  owners,  and  may  serve  upon  the  owner,  occupant  or  person  in  charge  of      ' 

8  trees,  shrubs  or  other  plants  thus  infested,  written  notice  of  the  presence 

9  of  such  pests  or  plant  disease,  with  a  statement  that  they  constitute 

10  a  public  nuisance,  together  with  directions  to  abate  the  same,  giving  the 

11  methods  of  treatment  for  the  abatement  thereof,  and  stating  a  time 


1298 


AGRICULTURE. 


[Chap.  128. 


within  which  the  nuisance  must  be  abated  in  accordance  with  the  methods  12 
given  therein.  If  the  person  so  notified  refuses  or  neglects  so  to  treat  or  13 
destroy  sucli  trees,  shrubs  or  other  plants  within  the  time  prescribed,  14 
the  director  may  cause  such  property  to  be  so  treated  or  destroyed,  15 
and  may  employ  all  necessary  assistants  for  this  purpose,  who  may  enter  16 
upon  any  public  or  private  property,  if  such  entry  is  necessary  for  this  17 
purpose.  Upon  the  completion  of  said  treatment  the  director  shall  cer-  18 
tify  in  writing  to  the  owner  or  person  in  charge  of  the  treated  property  19 
the  amount  of  the  cost  of  such  treatment,  and  if  this  be  not  paid  to  the  20 
commissioner  within  ninety  days  thereafter,  the  same  may  be  recovered  21 
by  suit,  together  with  the  cost  of  the  suit.  22 


Appeal  may 
be  taken. 
1907,  321,  §  4. 
1909.  444, 
§5  9,  17. 
1912,  507, 
§§  8,  16. 
1918.  268, 
l§1.4. 


Section  25.     In  case  of  objection  to  the  action  of  the  director  or  1 

his  assistants  in  executing  any  provision  of  sections  sixteen  to  thirty-one,  2 

inclusive,  an  appeal  may  be  taken  within  ten  days  to  the  commissioner,  3 

and  the  appeal  shall  act  as  a  stay  of  proceedings  until  it  has  been  heard  4 

and  decided  by  the  commissioner,  whose  decision  shall  be  final.  5 

1919.  .350,  §§  35.  37. 


Proceedings 
after  appeal. 
1907.  321,  §  5. 
1909.  444, 
§§  10.  17. 
1912,  S07, 
§§  9,  If.. 
1916,  91,  §  3. 
1918,  268, 
5§1.4. 
1919.350, 
§§  35,  37. 

Penalty,  §  29. 


Section  26.  When  the  commissioner  has  heard  an  appeal  and  has  ren-  1 
dered  a  decision  that  the  action  of  the  director  from  which  the  appeal  2 
was  taken  is  sustained,  the  director  shall  notify  in  writing  the  owner,  3 
occupant  or  person  in  charge  of  the  trees,  shrubs  or  other  plants  con-  4 
cerned,  of  the  decision,  and  shall  direct  him  to  treat  or  destroy  the  trees,  5 
shrubs  or  other  plants  within  a  given  time  in  accordance  with  a  method  6 
prescribed  in  the  notice.  If  the  person  so  notified  refuses  or  neglects  7 
so  to  treat  or  destroy  such  trees,  shrubs  or  other  plants  within  the  time  8 
prescribed,  the  director  may  cause  such  property  to  be  so  treated  or  9 
destroyed,  and  the  cost  thereof  to  be  recovered  as  provided  in  section  10 
twenty-four.  11 


§3. 


103. 


Powers  of 
director. 
1907,321, 
1909,444, 
§§  13,17. 

1911,  Bes. 

1912,  507, 
§§  12,  16. 
191S,  193. 
1919,350. 
§§  3.5.  37. 


Penalty.  §  29. 


Section  27.     The  director,  with  the  approval  of  the  commissioner,  1 

after  a  duly  advertised  public  hearing  with  notice  to  interested  parties,  2 

may  prohibit  for  such  periods  and  under  such  conditions  as  he  may  im-  3 

pose,  the  delivery  within  the  commonwealth  of  nursery  stock  from  out-  4 

side  thereof  when  in  his  opinion  such  nursery  stock  is  likely  to  be  in-  5 

fested  with  insect  pests  or  di.sease  or  is  likely  to  act  as  a  carrier  thereof.  6 

With  the  approval  of  the  commissioner,  he  may  prescribe  such  general  7 

requirements  as  may  be  needed  to  carry  out  sections  sixteen  to  thirty-  8 

one,  inclusive,  and  may  publish  information  about  such  insects  and  9 

disease  as  come  within  his  observation.  10 


brXutoU           Section  28.    Sections  sixteen   to   twenty-seven,   inclusive,   twenty-  1 

moth  control     nine  and  thirty,  shall  not  apply  to  g.A'psy  or  brown  tail  moths  in  any  stage  2 

1907, 321,' §8.    of  development  except  upon  places  wiiere  nursery  stock  is  grown  and  3 

1909,444,                                                         •                I-          1            1-    •     •          il  A 

§§  14, 17.         upon  property  immediately  adjoining  the  same.  4 

1911,  Res.  103.  1912,  507,  |§  13,  16. 


Penalty. 
1902,  495,  §  3. 
1907,  321, 
§S2,  6. 
1909,  444, 
§§11.17. 
1912,  507, 
§§  10,  16. 


Section  29.  Whoever  violates  any  provision  of  sections  sixteen  to 
twenty-seven,  inclusive,  or  offers  any  hindrance  to  the  carrying  out  of 
any  part  thereof,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more 
than  one  hundred  dollars  to  the  use  of  the  commonwealth. 


CUAP.    128.]  AGRICULTURE.  1299 


7. 


1  Section  30.     All    prosecutions    under    sections    sixteen    to    twenty-  Prosecutions. 

2  seven,  inclusive,  or  section  thirty-one  shall  be  instituted  by  the  commis-  nm,  til',  ^ ' 

3  sioner  and  shall  be  directed  by  him.  ^^  '-•  ^'^■ 

1912,  507,  §§  11.  16-  1918,  2GS,  §§  1,4.  1919,  350.  §  35. 

1  Section  31.     Whenever  the  director  finds  that  any  town  or  part  European  com 

2  thereof  is  infested  with  the  European  corn  borer  or  other  insect  pest,  PenaUy*''' 

3  except  the  gypsy  and  brown  tail  moth,  or  with  a  plant  disease  which  in  §§'3^5,®3^'^;^358. 

4  his  opinion  is  likely  to  spread  to  other  parts  of  the  commonwealth  or 

5  to  other  states,  he  may,  after  a  duly  advertised  public  hearing,  and  with 

6  the  approval  of  the  commissioner,  issue  an  order  stating  the  insect  pest 

7  or  plant  disease  to  be  guarded  against,  and  prohibiting,  for  such  periods 

8  and  under  such  conditions  as  he  deems  necessary,  the  transportation  to 

9  or  from  such  town  or  part  thereof,  of  any  specified  trees,  plants,  shrubs 

10  or  other  vegetable  growths  or  products,  and  any  specified  containers  or 

11  other  articles  by  means  of  whicli  such  an  insect  pest  or  plant  disease  is  or 

12  is  likely  to  be  carried.    The  order  aforesaid  shall  be  advertised  in  a  news- 

13  paper  published  in  each  town  where  it  is  to  be  effective,  or,  if  no  newspaper 

14  is  published  in  such  town,  then  in  a  newspaper  of  general  circulation 

15  in  the  county  where  the  town  is  situated.     Whoever  violates  any  order 

16  issued  under  this  section  or  whoever  offers  any  hindrance  to  the  carry- 

17  ing  out  of  such  order  shall  be  punished  by  a  fine  of  not  less  than  twenty- 

18  five  nor  more  than  three  hundred  dollars. 

INSPECTOR   OF   APIARIES. 

1  Section  32.     With  the  approval  of  the  commissioner,  the  inspector  of  .^"''^^  °f 

rt  ■      •  1      n  1      1-        -i  c  .  •  11.  inspector. 

2  apiaries  shall  prepare  and  distribute  from  time  to  time  such  literature  i^io,  ess,  §  2. 

•  1011    2'-*0    S  '^ 

3  upon  the  subject  of  bee  culture  as  he  deems  advisable,  shall  annually  1919',  350!  §  35. 

4  make  or  cause  to  be  made  through  his  assistants  such  inspection  of  the 

5  apiaries  throughout  the  commonwealth  as  he  deems  necessary  to  dis- 

6  cover  and  suppress  all  bee  diseases  of  a  contagious  nature,  and  may 

7  make  and  issue  reasonable  regulations  for  carrying  out  this  and  the  six 

8  following  sections. 

1  Section  33.     No  person  shall  keep  a  colony  of  bees  affected  with  Keeping  of 

2  foul  brood,  black  brood,  or  any  other  infectious  or  contagious  disease  uedin'rartaia 

3  harmful  to  honey  bees  in  the  egg,  larval,  pupal  or  adult  stage,  except  as  ^gi'o'ess  §  3 

4  pro\'ided  in  the  following  section,  and  each  beekeeper,  when  he  becomes  isi',  220,  §3. 

5  aware  of  the  existence  of  such  a  disease  among  his  bees,  shall  at  once  Penalty,  §  38. 

6  notify  the   inspector  to  that  effect.     No  person,  knowing  that  a  con- 

7  tagious  or  infectious  disease  exists  among  his  bees,  shall  sell,  barter,  give,  ^ 

8  or  in  any  other  way  dispose  of  the  same  in  whole  or  in  part,  or  any  prod- 

9  act  of  the  same,  or  any  hive,  super,  frame,  section  or  other  appliance 

10  used  about  the  diseased  bees,  in  such  manner  as  to  cause  the  spread  of 

11  the  disease. 

1  Section  34.     The  inspector  or  his  assistants,  upon  the  discovery  of  J^re""ent  of"'* 

2  foul  brood,  black  brood  or  other  infectious  or  contagious  disease,  in  any  jq^g'^gg,''^'^^- 

3  apiary  or  colony,  shall  give  instruction  to  the  owner  or  caretaker  thereof  §§  4,'5. 

4  as  to  the  treatment  of  the  diseased  bees,  and  shall  also  send  to  the  owner  §§  4,' 5."  ' 

5  or  caretaker  a  written  order  that  such  bees  be  held  in  quarantine  until  Penalty,  §  38. 

6  released  by  WTitten  permit  from  the  inspector,  and  bees  so  quarantined 

7  shall  not  be  removed  from  the  premises. 


1300 


AGRICXJLTXJRE. 


[Chap.  128. 


If  upon  subsequent  inspection  the  disease  is  still  found  to  exist  the  8 
inspector  or  his  assistants  may  cause  the  diseased  colonies  to  be  de-  9 
stroyed  in  such  manner  as  to  prevent  the  spread  of  the  disease.  10 


Regulations 
concerning 
shipping  or 
transportation 
of  bees.  etc. 
1911.  220,  §  6. 

Penalty,  §  38. 


Section  35.     No  colony  of  bees  shall  be  shipped  or  transported  into  1 

or  delivered  in  this  commonwealth  from  a  state  or  country  having  an  2 

inspector  of  apiaries,  or  other  officer  charged  with  similar  duties,  without  3 

a  certificate  stating  that  such  officer  has  inspected  said  colonj^  and  that  4 

it  is  free  from  infectious  or  contagious  disease.    No  transportation  com-  5 

pany  or  common  carrier  shall  accept  for  transportation  into  the  com-  6 

monwealth,  nor  shall  it  deliver  to  any  consignee  herein,  any  such  colony  7 

from  such  state  or  country,  unless  such  colony  is  accompamed  by  such  8 

certificate.     In  the  absence  of  such  a  certificate,   the  consignee  upon  9 

the  receipt  of  said  colony  shall  forthwith  notify  the  inspector,  who  shall  10 

forthwith  inspect  the  same.     No  transportation  company  or  common  11 

carrier  shall  be  liable  in  damages  for  refusing  to  receive,  transport  or  12 

deliver  any  colony  of  bees  when  not  accompanied  by  a  certificate  as  13 

above  provided.     This  section  shall  not  prevent  the  transportation  or  14 


delivery  of  queen  bees  when  not  accompanied  by  brood  or  comb. 


15 


Access  by  in- 
spector and 
assistants  to 
apiaries,  etc. 

1910,  653,  §  6. 

1911,  220,  §  7. 


Section  36.  The  inspector  and  his  assistants  shall  have  access  to  1 
each  place  where  bees,  bee  products  or  supplies  or  appliances  used  in  2 
apiaries  are  kept.  Penait5',  §  38.  3 


Record  to  be 
kept,  etc. 
1910.  65,S,  §  7. 
1911.220.  §8. 
1919,350.  §35. 


Section  37.     The  inspector  shall  keep  a  detailed  record  of  the  num-  1 

ber  and  location  of  all  apiaries  visited  by  him  or  his  assistants,  the  num-  2 

ber  and  location  of  all  colonies  found  diseased,  the  treatment  thereof,  3 

and  the  expenditure  incurred  in  the  performance  of  the  duties  of  his  office.  4 

He  shall  report  to  the  commissioner  annually,  and  at  such  other  times  5 

as  he  requests.  6 


Penalty. 

1910,  653,  §  8. 

1911,  220,  §  9. 


Section  38.    Whoever  violates  any  provision  of  sections  thirty-two  1 

to  tliirty-six,  inclusive,  shall  be  punished  for  the  first  offence  by  a  fine  2 

of  not  more  than  ten  dollars,  for  the  second  offence  by  a  fine  of  not  more  3 

than  twenty-five  dollars  and  for  a  subsequent  offence  by  a  fine  of  not  4 

more  than  fifty  dollars.  5 


Director  of 
the  division 
ornithology, 
duties,  etc. 
1908,  245, 
H2.3. 
1912.  500.  § 
1914,  424,  I 
1917,  75. 
1919,  350, 
l§  35,  37. 


of 


director  of  the  division  of  ornithology. 

Section  39.  The  director  of  the  di\ision  of  ornithology  shall  in-  1 
vestigate  the  distribution  and  food  habits  of  the  birds  of  the  com-  2 
monwealth;  shall  determine,  so  far  as  possible,  the  relation  of  birds  to  3 
outbreaks  of  insects  and  animals;  shall  experiment  with  a  view  to  dis-  4 
covering  the  best  methods  of  protecting  fruits  and  crops  from  birds;  5 
and  shall  serve  the  department  and  the  people  of  the  commonwealth  in  6 
an  advisory  capacity  in  matters  relating  to  the  economic  status  of  birds  7 
and  to  legislation  concerning  them.  He  shall  report  annually  to  the  com-  8 
missioner.  Subject  to  the  approval  of  the  commissioner,  he  may  pur-  9 
chase  such  supplies  and  apparatus  as  may  be  reasonably  necessary  in  10 
carrying  out  his  duties  and  may  issue  special  reports  and  bulletins  as  the  11 
exigencies  of  his  work  may  require.  For  the  purpose  of  aiding  in  the  12 
study  of  the  distribution  and  habits  of  the  birds  of  the  commonwealth  13 
he  may  appoint  special  observers  to  serve  without  compensation.  14 


Chap.  128.]  agriculture.  1301 


TRUSTEES   FOR   COUNTY   AID   TO    AGRICULTURE. 

1  Section  40.     In  each  county,  except  Sufi'olk  and  except  counties  main-  Trustees  for 

2  taining  vocational  agricultural  schools,  there  shall  be  an  unpaid  board  agSture.'" 

3  of  nine  trustees  to  be  known  as  trustees  for  county  aid  to  agriculture.  Aud'irof"^' 

4  The  county  commissioners  of  each  such  county  shall  annually  appoint  Report'" 

5  three  trustees,  qualified  as  hereinafter  provided,  to  serve  for  three  years  J^js.  273,  §  1. 

6  from  April  first  of  the  year  of  appointment,  and  shall  fill  any  vacancy  1920!  103. 

7  in  said  board  for  the  unexpired  term.     All  of  said  trustees  shall   be 

8  residents  of  the  county  where  they  are  appointed,  one  shall  always  be 

9  a  county  commissioner  of  said  county,  and  fom*  so  far  as  is  possible  shall 

10  be  taken  from  the  directors,  chosen  as  provided  in  the  following  section, 

11  of  such  cities  and  towns  as  have  appropriated  funds  toward  carrying  out 

12  sections  forty  to  forty-five,  inclusive.     Subject  to  the  approval  of  the 

13  county  commissioners,  the  trustees  shall  annually  appoint  a  competent 

14  person,  who  may  be  one  of  their  own  number,  to  serve  as  their  treas- 

15  urer  without  compensation.    He  shall  have  the  usual  powers  and  duties 

16  pertaining  to  the  office  of  treasurer  and  shall  give  bond  to  the  county 

17  in  such  sum  and  with  such  surety  as  is  approved  by  the  county  com- 

18  missioners.    The  premium  on  such  bond  may  be  paid  by  the  treasurer 

19  from  any  funds  held  by  him  under  sections  forty  to  forty-five,  inclusive. 

20  The  accounts  of  the  trustees  shall  be  audited  by  the  director  of  accounts 

21  in  the  manner  in  which  other  county  accounts  are  audited  imder  general 

22  law.    The  trustees  shall  annually  submit  to  the  county  commissioners 

23  a  report  for  the  previous  year  with  a  statement  of  receipts  and  expcndi- 

24  tures  in  such  form  and  at  such  time  as  is  required  by  them,  and   they 

25  shall  cause  the  said  report  to  be  printed  as  a  part  of  their  regular  annual 

26  report. 

1  Section  41.     Choice  of  the  directors  mentioned  m  the  preceding  sec-  Directors, 

2  tion  shall  be  made  in  such  towns  at  the  annual  town  meeting  at  which  i'ms.'^273^°§'  1. 

3  the  appropriation  is  made,  or  at  the  next  succeeding  annual  meeting  i^''-''^^- 

4  when  the  appropriation  is  made  at  a  special  meeting,  and  in  such  cities, 

5  by  the  mayor,  not  later  than  fifteen  days  following  the  vote  authorizing 

6  the  appropriation.     The  directors  shall  serve  for  such  terms  as  the 

7  mayor  in  cities  and  the  voters  in  towns  shall  determine. 

1  Section  42.     The  trustees  may  receive  on  behalf  of  the  county  and  Expenditures. 

2  apply  to  the  purposes  of  sections  forty  to  forty-five,  inclusive,  money  '^^*'  2''3.  §  2. 

3  appropriated  therefor  by  the  general  court  for  any  county  or  by  any 

4  town,  or  by  the  federal  government,  and  may  control  the  expenditure 

5  thereof  either  solely  or  in  conjunction  with  representatives  or  agents  of 

6  the  commonwealth  or  of  the  United  States,  or  of  any  department,  com- 

7  mission,  board  or  institution  created  under  the  statutes  of  this  com- 

8  monwealth  or  under  an  act  of  congress.     The  trustees  may  enter  into 

9  agreements,  arrangements  or  undertakings  with  any  such  departments, 

10  commissions,  boards  and  institutions,  relative  to  extension  work  with 

11  adults  and  with  boys  and  girls  in  agriculture,  homemaking  and  country 

12  life. 

1  Section  43.    The  trustees  shall  maintain  one  or  more  agents  or  in-  Trustees. 

2  structors  in  agriculture,  homemaking  and  country  life,  who  shall  meet  i'n''8??i"tS'rs"by° 

3  the  residents  of  the  county  individually  and  in  groups  for  the  purpose  '^'*'  ^^^'  ^  ^' 


1302 


AGRICULTURE. 


[Chap.  128. 


of  teaching  and  demonstrating  better  practice  in  agriculture  and  home-  4 

making,  the  benefits  to  be  derived  from   co-operative  efforts,   better  5 

methods  of  marketing  farm  products  and  the  organization  of  communi-  6 

ties  to  build  up  country  life.  7 


Trustees  to 
prepare  budget. 
1918,  273,  §  4. 
1920,517. 


Towns  may 
take  land. 
191S,  273,  §  5. 


Section  44.    The  trustees  shall  annually  prepare  and  submit  to  the  1 

county  commissioners,  not  later  than  the  first  Wednesday  in  December,  2 

a  budget  containing  detailed  estimates  of  all  sums  required  by  them  3 

for  carrying  out  sections  forty  to  forty-five,  inclusive,  diu-ing  the  en-  4 

suing  year.     The  county  commissioners  shall  include  in  their  annual  5 

estimate  of  county  expenses  to  be  appropriated  by  the  general  court  and  6 

raised  by  the  annual  county  tax  levy  at  least  one  half  of  such  sums  as  7 

they  deem  necessary  to  carry  out  said  piu"poses,  such  sums  so  appropri-  8 

ated  to  be  paid  over  to  the  trustees  annually.  9 

Section  45.    Any  town  may  accjuu-e,  by  purchase  or  otherwise,  in  the  1 

manner  in  which  land  may  be  acquired  for  school  purposes,  real  estate  2 

for  the  purpose  of  carrying  on,  under  the  direction  of  the  agents  or  in-  3 

structors  of  said  trustees,  demonstration  work  in  agriculture  and  home-  4 

making,  and  may  appropriate  money  to  be  expended  b^'  said  trustees  5 

under  sections  forty  to  forty-three,  inclusive,  or  for  the  purpose  of  ena-  6 

bling  the  trustees  to  acquire  necessary  real  estate,  or  for  the  support  of  7 

demonstration  work,  under  the  direction  of  the  agents  or  instructors  or  8 

of  the  trustees,  on  land  owned  by  the  town  or  by  any  resident  thereof.  9 


Agricultural, 
etc..  societies, 
assigament  of 
police  at  ex- 
hibitions, etc. 
1892,  ISO. 
R.  L.  124,  i  16. 


.'VGRICULTUIt'VL   AND   HORTICULTUK.\.L   SOCIETIES,  ETC. 

Section  46.  Upon  the  application  of  the  president  of  an  mcorporated 
agricultural  or  horticultiu'al  society  to  the  authorities  of  a  town  where 
an  exhibition  of  such  society  is  to  be  held,  such  authorities  shall  assign 
for  special  service  at  such  e.xliibition  all  police  officers  or  constables  nec- 
essary to  preserve  the  peace  and  enforce  the  law  thereat. 

to  receive'^pub-  SECTION  47.  Farmers'  clubs  which  are  organized  and  are  holding 
is59°203'^"2  regular  meetings  shall,  upon  application  made  armually  in  November  to 
G.  I '66  §18^  the  commissioner,  receive  copies  of  the  department's  report  and  of  its 
20  other  publications,  in  proportion  to  the  number  of  their  members  and 
to  the  ap]3lications  so  made.  A  club  which  receives  such  copies  shall 
annually  in  October  make  returns  to  said  commissioner  of  its  agricultural 
experiments  and  of  the  reports  of  its  committees. 


R.  L.  124, 
1919.  350, 
§§  34.  35. 


Section  48.    Each  agricultural  or  horticultural  society  or  farmers' 
clul)  may  establish  such  regulations,   not  inconsistent  with  law,  as  it 


6  Alien,  5g8. 


Preservation 

of  peace. 

ISfil,  127,  §  1, 

P.  .S.  114,  §  20  -  -  •  c  11 

p  L.  124.  §  21  considers  necessary  and  ex-pedient  for  the  preservation  ot  peace  and  good 
order  or  for  the  protection  of  its  interests  at  its  regular  or  annual  meet- 
ings, shows,  fairs  or  exliibitions,  and  shall  cause  at  least  five  copies  of 
such  regulations  to  be  posted  in  public  places  on  its  grounds  not  less 
than  forty-eight  hours  before  the  time  of  holding  each  meeting,  show, 
fair  or  exhibition. 


gaming. Itc.',          Section  49.     No  person,  durmg  the  time  of  holding  a  cattle  show,  1 

i'8M''i27'*§  2     ^^^^  o""  exhibition  or  meeting  of  a  farmers'  club  and  witliout  the  consent  2 

T'i'ni'iii    °^  ^^^^  authorities  having  charge  of  the  same,  shall  establish  within  one  3 

R  L.  124,  §  22.  half  mile  of  the  place  of  holding  such  show,  fair,  exhibition  or  meeting  a  4 

tent,  booth  or  vehicle  of  any  kind  for  the  purpose  of  vending  any  goods,  5 


Chap.  129.] 


ANIMAL   INDUSTRY. 


1303 


6  wares,  merchaiuiise,  provisions  or  refreshments.    No  person  shall  engage 

7  in  gaming  or  horse  racing  or  e>diibit  a  show  or  play  during  the  regular 

8  or  stated  time  of  holding  a  cattle  show,  agricultm-al  fair  or  meeting  of  a 

9  farmers'  club,  or  engage  in  pool  selling,  at  or  within  one  half  mile  of  the 

10  place  of  holding  the  same;  but  no  person  having  his  regular  place  of  busi- 

11  ness  within  such  limits  shall  be  hereby  required  to  suspend  his  business. 

1  Section  50.    Whoever  violates  any  provisions  of  the  preceding  sec-  Penalty 

2  tion,  or  of  a  regulation  established  under  section  forty-eight,  shall  forfeit  r'.s'i'u!'|22. 

3  not  more  than  twenty  dollars.  R.  l.  124,  §  23. 

REFERENCE. 
County  aid  to  agriculture  in  Suffolk  county,  1919,  75. 


CHAPTER    129 

ANIMAL  INDUSTRY. 


Sect. 

1.  Definitions. 

2.  Powers  and  duties  of  director,  orders, 

etc. 

3.  Records  of  inspectors. 

4.  Certification  of  documents  by  clerk. 

5.  Orders,  etc.,  to  be  sent  to  inspectors. 

6.  Aid  by  sheriffs,  etc. 

7.  Entry  on  premises. 

8.  Hospitals  and  quarantine. 
Duties  of  agcnt.s  of  Massachusetts  So- 
ciety for    Prevention  of   Cruelty   to 
Animals. 

Examinations  under  oath. 

11.  Isolation,  etc.,   of  affected  animals. 

12.  Compensation  for  killing  cattle  affected 

with  tuberculosis. 

Compensation  for  killing  animals  af- 
fected with  glanders. 

Extermination  of  foot  and  mouth  dis- 
ease. Appraisals  of  and  payments 
for  property  destroyed,  etc. 

15.  Appointment  of  inspector  of  animals. 

16.  Penalty  for  refusal  or  neglect  of  town  to 

appoint  inspectors.      Appointment  by 
director. 

17.  Oath  of  inspector.      Compensation. 


9. 


10 


13 


14 


Sect. 

18.  Duties  of  inspector. 

19.  Inspection  of  domestic  animals. 

20.  Certificate  of  healthy  condition. 

21.  Quarantine  of  infected  animals. 

22.  Service  of  notice  of  quarantine. 

23.  Examination  of  barns,  etc. 

24.  Notice  of  quarantine. 

25.  Records  of  inspectors  of  animals. 

26.  Provisions  applying  to  Boston. 

27.  Quarantine  of  imported  animals. 
2S.   Notice  of  contagious  diseases. 

29.  Expense  of  quarantine. 

30.  Quarantine.     General  penalties. 

31.  Assessment  of  damages. 

32.  U.se  of  tuberculin  restricted,  etc. 

33.  No  compensation  in  certain  cases  for 

animals  tested  with  tuberculin. 

34.  No  compensation  to  violators  of  regu- 

lations. 

35.  Certain    cattle    not    to    be    driven    on 

streets,  etc. 

36.  Notice  to  be  given  of  contagious  dis- 

eases. 

37.  Enforcement  of  provisions. 

38.  Annual  report. 


1  Section  1.     The  following  words  as  used  in  this  chapter,  unless  the  Definitions. 

2  context  otherwise  requires,  shall  have  the  following  meanings:  imiwi,'  ^^' 

3  "Agents",   employees  of  the  division  of  animal  industry  specially  fglg^os, 

4  designated  as  agents  by  the  director.  r  l  go 

5  "Contagious  disease",  such  disease  as  is  recognized  by  the  United  ||,^,'|^- 

6  States  bureau  of  animal  industry  to  be  contagious  or  infectious.  i9i8;2b9. 

7  "Director",  director  of  animal  industry. 

8  "Division",  division  of  animal  industry. 

9  "Inspector",  inspector  of  animals  appointed  under  section  fifteen  or 
10  sixteen. 


1919.  350, 
§§  40,  44. 


1304 


ANLMAL   INDUSTRY. 


[Chap.  129. 


Powers  and 
duties  of 
director, 
orders,  etc. 
1S60,  221,  §  6. 
P.  S.  90,  §  10. 
1S94,  491,  §  3S. 
1899,  408,  §  4. 
R.  L.  90,  §  4 
1902,  116,  §  3. 
1911,381,  §  1. 

1912,  608,  §  4. 

1913,  329. 
1919,  350, 
5§40,44. 

2  0p.  A.  G.  425, 
542. 

3  Op.  A.  G.  208. 


Section  2.  The  director  may  make  and  enforce  reasonable  orders, 
rules  and  regulations  relative  to  the  following:  the  sanitary  condition  of 
neat  cattle,  other  ruminants  and  swine  and  of  places  where  such  animals 
are  kept;  the  prevention,  suppression  and  extirpation  of  contagious  dis- 
eases of  domestic  animals;  the  inspection,  examination,  quarantine,  care 
and  treatment  or  destruction  of  domestic  animals  affected  with  or  which 
have  been  exposed  to  contagious  disease,  the  burial  or  other  disposal  of 
their  carcasses,  and  the  cleansing  and  disinfection  of  places  where  con- 
tagion exists  or  has  existed.  No  rules  or  regulations  shall  take  effect 
until  approved  by  the  governor  and  council.  Op.  a.  g.  (iqiq)  34. 


9 
10 


Section  3.     The  director  shall  make  and  prescribe  forms  for  records     1 
899  408 1 1^'  °^  inspectors,  certificates  of  examination,  notices  and  orders  of  quarantine,     2 
notices  and  orders  for  killing  and  burial,  and  for  returns  of  inspectors     3 


Records  of 

inspectors. 

1894,    ■      ' 

1899, 

R.  L.  90,  §  4 

1902,  116,  §  3  .        ,   ,  ,  .        ,  ,, 

1911, 381, 1 1.    required  bv  this  chapter.        1912,  eos,  §  4.         1913,  329.         1919, 3,50,  §§  40, 44.  4 


Certification 
of  documents 
bv  clerk. 

1893,  306,  §  7. 

1894,  491.  §  52. 
1899.  408,  §  2. 
R.  L.  90,  §  2 
1902,  116,  §  3. 
1912,  608,  §  3. 


Section  4.  The  director  may  designate  an  employee  of  the  division 
as  clerk  who  shall  keep  the  records  of  the  di\-ision,  shall  certify  copies 
of  such  records  or  of  any  order,  rule  or  regulation  issued  by  the  director, 
and  shall  make  any  certificates  of  issuing,  recording,  delivering  or  pub- 
lishing of  orders  required  under  this  chapter. 

1913,  329.  1918,  257,  §  313.  1919,  5;  350.  |§  40,  44.  1920,  2. 


Orders,  etc  , 
to  be  sent  to 
inspectors. 
1894,491,  §40. 
1899.  408,  §  13. 
R.  L.  90,  §  4 
1902.  116,  §3 

1912,  60S,  §  4. 

1913,  329. 


Section  5.  AH  orders,  rules  and  regulations  made  by  the  director 
shall  be  entered  on  the  records  of  his  division  and  a  copy  thereof  shall  be 
sent  to  each  inspector  in  the  town  to  which  the  orders,  rules  or  regula- 
tions apply,  and  shall  be  published  by  such  inspector  in  the  manner  pre- 
scribed by  the  order,  rule  or  regulation.      i9i9,  sso.  §§  40. 44.     2  0p.  a.  g.  425. 


Aid  by 
sfieriffs,  etc. 
1,894,  491,  §  57. 
1899,408,  §  11. 
R.  L,  90,  §  9. 
1902.  116,  §  3. 
1912,  60S,  §  4. 


Section  6.     Sheriff's,  constables  and  police  officers  shall  upon  request  1 

of  the  director  or  an  inspector  assist  him  in  the  performance  of  his  duties  2 

and  shall  have  the  same  powers  and  protection,  while  so  engaged,  as  3 

peace  officers.  i9i3. 329.  1919, 350,  §§  40, 44.  4 


Entry  on 
premises. 
1894,  491,  §  13. 
1899,  108,  §  28. 
R.  L.  90,  §  23. 
1902,  116,  §  3. 
1911,381, 
§§1,3. 

1912,  608, 

1913.  329. 

1918.  257. 
§314. 

1919.  5:  350. 
§§  40.  44. 

1920.  2. 


:4. 


Section  7.     For  the  purpose  of  inspecting  or  examining  animals  or  1 

the  places  where  they  are  kept,  the  director,  any  of  his  agents  or  an  2 

inspector,  duly  qualified,  may  enter  any  building  or  part  thereof  or  any  3 

enclosure  or  other  place,  and  may  examine  or  inspect  such  animals  or  4 

places.     Whoever  prevents,  obstructs  or  interferes  with  such  director,  5 

agent,  inspector  or  other  person  having  like  authority  in  the  performance  6 

of  any  of  his  duties,  or  whoever  hinders,  obstructs  or  interferes  with  his  7 

making  such  inspection  or  examination,  or  whoever  secretes  or  removes  8 

any  animal,  for  the  purpose  of  preventing  it  from  being  inspected  or  9 

examined,  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dol-  10 

lars  or  by  imprisonment  for  not  more  than  two  months,  or  both.  11 


Hospitals  and 
quarantine. 
1860,  221,  §  3. 
1878.  24.  §  1. 
P.  S.  90.  §  14. 
1887,252,  §11. 
1894.491,  §41. 
1899.  408.  §  6. 
R.  L.  90.  §  5 
1902,  116.  §  3. 

1912.  60S,  §4. 

1913.  329. 


Section  8.  The  director  may  establish  hospitals  or  quarantine  sta- 
tions, with  proper  accommodations,  wherein,  under  prescribed  regula- 
tions, animals  selected  by  him  may  be  confined  and  treated  for  the  pur- 
pose of  determining  the  characteristics  of  a  specific  contagion  and  the 
methods  by  which  it  may  be  disseminated  or  destroyed,  and  he  may 
direct  inspectors  to  enforce  and  carry  into  effect  all  regulations  made  from 
time  to  time  for  that  purpose.  wi^'  350,  §§  40, 44. 


1 
2 

3 
4 
5 
6 

7 


Chap.  129.]  anlm.\l  industry.  1305 

1  Section  9.     The  agents  of  the  Massachusetts  Society  for  the  Pre-  Duties  of 

2  vention  of  Cruelty  to  Animals  may  visit  all  places  at  which  neat  cattle,  Ma"uchusctts 

3  sheep,  swine  or  other  animals  are  delivered  for  transportation  or  are  Prevention  of 

4  slaughtered,  for  the  purpose  of  preventing  violations  of  aiiy  law  and  of  AlSnlSs"* 

5  detecting  and  punishing  the  same;    with  power  to  prosecute  any  such  laio.  s'JO- 

6  violation  coming  to  their  notice.    Any  person  who  prevents,  obstructs  or 

7  interferes  with  any  such  agent  in  the  performance  of  such  duties  shall  be 

8  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison- 

9  ment  for  not  more  than  two  months,  or  both. 

1  Section  10.     The  director  may  examine  on  oath  all  persons  who  are  Examinations 

2  believed  to  possess  knowledge  of  material  facts  relative  to  the  existence  iss^iTs,  §  i. 

3  or  dissemination,  or  danger  of  dissemination,  of  contagious  diseases  among  l^^i.'io.'i-k. 

4  domestic  animals,  or  relative  to  any  other  matter  within  the  provisions  }||f;  2II;  |  fy, 

5  of  this  chapter,  and,  for  the  purposes  of  this  chapter,  shall  have  all  the  J^gg' 49?;  1 1| 

6  powers  vested  in  justices  of  the  peace  by  chapters  two  hundred  and  issn!  4bs.  §  10. 

7  twenty-two  and  two  hundred  and  thirty-three  to  take  depositions,  to  ino2:  nh,  §  3. 

8  compel  witnesses  to  attend  and  testify  before  him  and  to  administer  lolsiS 

9  oaths.    Witnesses  shall  receive  the  same  fees  for  attendance  and  travel  §§'^^6.^44*.' 

10  as  witnesses  before  the  superior  court.     The  expense  of  procuring  the 

11  attendance  of  such  witnesses  shall  be  paid  by  the  commonwealth.    Copies 

12  of  the  records  of  the  division,  or  of  any  order,  rule  or  regulation  issued 

13  by  the  director,  if  duly  certified  by  the  clerk,  and  any  certificate  by  the 

14  clerk  of  the  issuing,  recording,  delivering  or  publishing  of  such  orders, 

15  rules  or  regulations  under  this  chapter,  shall  be  competent  evidence  of 

16  such  fact  in  any  tribunal. 

1  Section  11.     If  the  director,  or  one  of  his  agents,  by  examination  of  a  isolation,  etc., 

2  case  of  contagious  disease  of  domestic  animals,  except  foot  and  mouth  animal's' 

3  disease,  is  of  opinion  that  the  public  good  so  requires,  he  shall  cause  the  lfl%^if'  ^  ^' 

4  diseased  animal  to  be  securely  isolated  or  to  be  killed  without  appraisal  1^78,^24.  §  1. 

5  or  payment.    An  order  for  killing  shall  be  issued  in  writing  by  the  direc-  jg«'  J^o- 

6  tor,  may  be  directed  to  an  inspector  or  other  person,  and  shall  contain  Pj^'^O' 

7  such  direction  as  to  the  examination  and  disposal  of  the  carcass  and  the  i887.'252, 

8  cleansing  and  disinfection  of  the  premises  where  such  animal  was  con-  1892,195,  §  3. 

9  demned  as  the  director  considers  expedient.    A  reasonable  amount  may  Jl^;  I??;  1 15. 

10  be  paid  from  the  treasury  of  the  commonwealth  for  the  expense  of  such  }^^g;  |[||;  |  ^°- 

11  killing  and  burial.    If  thereafter  it  appears,  upon  post  mortem  examina-  jy^  i?i,\''3 

12  tion  or  otherwise,  that  such  animal  was  free  from  the  disease  for  which  1912,'  ms!  §  4. 

13  it  was  condemned,  a  reasonable  amount  therefor  shall  be  paid  to  the  1917!  121, 

14  owner  by  the  commonwealth,  except  as  otherwise  provided  in  section 

15  fourteen  relative  to  foot  and  mouth  disease. 

1919,  350.  §§  40.  44.  152  Mas.s.  540.  30p.  A.  G.  208. 

1  Section  12.     If  under  the  preceding  section  any  cattle  affected  with  Compensation 

2  tuberculosis  are  killed,  the  full  value  thereof  at  the  time  of  condemna-  c°nie  '"^ 

3  tion,  not  exceeding  sixty  dollars  each,  shall  be  paid  to  the  owner  by  the  tuberculosis. 

4  commonwealth  if  such  animal  was  owned  within  the  commonwealth  for  six  }|^3;  l^[  |  f 

5  consecutive  months  next  prior  to  its  killing  or  was  inspected  within  such  {fpl' 491;'  f  to 

6  time  and  satisfactory  proof  has  been  furnished  to  the  director  by  certifi-  ism,  40s.  §  s. 

7  cate  or  otherwise  that  it  was  free  from  disease,  and  if  the  owner  has  r.  l'oo.Is. 

8  not  prior  thereto  in  the  opinion  of  the  director  by  wilful  act  or  neglect  lOp.  a.  g 

9  contributed  to  the  spread  of  tuberculosis.  ^^*'  ^^°'  ^^^' 


1306 


ANIMAL    IXDrSTRY. 


[Chap.  129. 


Compensation 
for  killing 
animals 
affected 
with  glanders. 
1913.  646,  §  1. 
1919.  350. 
§§  40.  44. 


Section  13.     If  under  section  eleven  anj-  horse,  mule  or  ass  affected  1 

with  glanders  is  killed,  the  full  value  thereof  at  the  time  of  condemna-  2 

tion,  not  exceeding  fifty  dollars,  shall  be  paid  to  the  owner  by  the  com-  .3 

monwealth  if  such  animal  was  owned  within  the  commonwealth  for  4 

twelve  consecutive  months  next  prior  to  the  killing  thereof,  and  if  tlie  5 

owner  thereof  has  not  in  the  opinion  of  the  director  contributed  to  the  (> 

spread  of  glanders  by  any  wilful  act  or  neglect.  7 


Extermination 
of  foot  and 
mouth  disease. 
Appraisals  of 
and  payments 
for  property 
destroved.  etc. 
1917,  121. 
§§1.2. 
1919.  330, 
§§  40,  44. 


Section  14.  All  neat  cattle  and  other  domestic  animals,  which  are  1 
affected  with,  or  have  been  exposed  to,  foot  and  mouth  disease,  shall  be  2 
destroyed  when,  in  the  opinion  of  the  director,  the  public  good  so  re-  3 
quires,  and  their  carcasses  shall  be  buried  or  otherwise  disposed  of.  An  4 
order  for  killing  and  for  the  disposal  of  carcasses  shall  be  issued  in  writing  5 
by  said  director,  and  may  be  directed  to  an  agent,  an  inspector,  or  other  6 
person.  The  said  director  shall  also  issue  such  directions  for  the  cleansing  7 
and  disinfection  of  buildings,  premises  and  places  in  which  foot  and  8 
mouth  disease  exists  or  has  existed,  and  of  property  which  may  be  on  or  9 
contained  therein,  as  in  his  opinion  may  be  necessary  or  expedient.  Any  10 
property  on  such  premises  which  may  be,  in  the  opinion  of  the  director  11 
or  of  his  agents,  a  source  of  contagion  may  be  destroyed  by  order  of  the  12 
director.  The  necessary  expenses  incurred  in  carrying  out  this  section  13 
may  be  paid  from  the  annual  appropriation  for  the  extermination  of  con-  14 
tagious  diseases  among  domestic  animals.  The  director  may  appoint  15 
persons  to  make  appraisals  on  live  stock  and  other  property  the  destruc-  16 
tion  of  which  is  ordered  under  this  section,  and  fifty  per  cent  of  the  full  17 
value  of  such  live  stock  and  other  property,  as  determined  by  the  ap-  18 
praisal,  may  be  paid  from  the  annual  appropriation  aforesaid.  If  the  19 
United  States  government  makes  an  appropriation  for  payment  of  a  cer-  20 
tain  portion  of  the  value  of  any  animals  and  property  destroyed  under  21 
this  section,  the  payment  by  the  commonwealth  for  such  animals  or  22 
property  shall  be  limited  to  the  difference  between  such  portion  and  the  23 
full  value  thereof  determined  as  herein  provided,  which  shall  not  be  in  24 
excess  of  fifty  per  cent  of  such  value.  25 


Appointment 
of^nispector 
of  animals. 
1S72.  231.  §  1. 
1875.  29.  §  1. 
1870,  ISO,  5  1. 
P.  S.  58,  §  1 

1892,  195,  §  1; 
432 

1893,  we,  s  r,. 

1894,  491,  §  1. 


Section  15.  The  mayor  in  cities,  except  Boston,  and  the  selectmen 
in  towns  shall  annually,  in  March,  nominate  one  or  more  inspectors  of 
animals,  and  before  April  first  shall  send  to  the  du-ector  the  name,  address 
and  occupation  of  each  nominee.  Such  nominee  shall  not  be  appointed 
until  approved  by  the  director.  In  cities  at  least  one  such  inspector  shall 
be  a  registered  veterinary  surgeon.         is99. 408.  §  i".  r.  l.  90,  §  12. 

1902.  116,  §3.  1911,143.  1913,329.  1  Op.  A.  G.  74. 


1908.  378. 


1912,  60S,  |§  4,  6. 


1919,  350,  §§  40,  44. 


4  Op.  A.  G.  146. 


Penalty  for 
refusal  or 
neglect  of  town 
to  appoint 
insjjoctora. 
Appointment 
by  director. 
189.3.  306, 
l§  5.  0. 

1894,  491,  S  2. 
1899,  408,  S  18, 
R.  L.  90.  §  13. 
1902,  116.  §  3. 


Section  16.  A  town  shall,  for  each  refusal  or  neglect  of  its  officers 
to  comply  with  the  requirements  of  the  preceding  section,  forfeit  not 
more  than  five  hundred  dollars.  The  director  may  appoint  one  or  more 
inspectors  for  such  town,  and  may  remove  an  inspector  who  refuses  or 
neglects  to  be  sworn  or  who,  in  the  opinion  of  the  director,  does  not  prop- 
erly perform  the  duties  of  his  office  and  may  appoint  another  inspector 
for  the  residue  of  his  term. 

1912,  608,  I  4.  1913,  329.  1919.  350,  §§  40,  44. 


S>*  cto"/ "com-  Section  17.  Each  inspector  shall  be  sworn  to  the  faithful  performance  1 
p|5.f  tj™  5  J  of  his  official  duties,  and  shall  receive  from  the  town  for  which  he  is  ap-  2 
1875, 29. 1'l.     pointed  reasonable  compensation,  if  appointed  by  the  town,  or  such  com-    3 


Ch.\P.    129.]  .VNIMAL   INDUSTRY.  1307 

4  pensation  as  shall  be  fixed  by  the  director,  but  not  in  excess  of  five  istb,  :so.  5 1. 

5  hundred  dollars  a  year,  if  appointed  by  the  director.     Towns  having  a  isss,  301;,  §  5. 

6  valuation  of  less  than  two  and  one  half  million  dollars  shall  be  reimbursed  Hit]  tye,.'  ^  ^' 

7  by  the  commonwealth  for  one  half  of  such  compensation,  not  exceeding  jf^n.^^f'so 

8  two  hundred  and  fifty  dollars  for  each  inspector  in  any  one  year.  k.qL.  9o^§  w- 

1912,  608,  §  i.  1913,  329.  1919.  350,  §§  40,  44. 

1  Section  18.     Each  inspector  shall  comply  with  and  enforce  all  orders  Duties  of 

2  and  regulations  directed  to  him  by  the  director.    If  he  refuses  or  neglects  ism!  «i', 

3  so  to  do,  he  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  isog.tos, 

4  dollars.  n.  l.  90.  §  10.  «  21, 31. 

1902,  116,  §  3.  1912,  cos,  §  4.  1913,329.  1919,  350,  §§  40,  44. 

1  Section  19.     Inspectors  shall  make  regular  and  thorough  inspections  inspection  of 

2  of  all  neat  cattle,  sheep  and  swine  found  within  the  limits  of  their  respec-  anCiMis." 

3  tive  towns.    Such  inspections  shall  be  made  at  such  times  and  in  such  ligf^lgillf; 

4  manner  as  the  director  shall  from  time  to  time  order.    They  shall  also  [Hq-  ^qI  |  22 

5  from  time  to  time  make  inspections  of  all  other  domestic  animals  within  {go^neS^s' 

6  the  limits  of  their  respective  towns  if  thev  know,  or  have  reason  to  sus-  ws!  60s!  i  4. 

.  .*  1913   329 

7  pect,  that  such  animals  are  affected  with  or  have  been  exposed  to  any  1919!  350! 

8  contagious  disease,   and  they  shall  immediately  inspect  all  domestic  s'op.'A.  b. 

9  animals  and  any  place  where  any  such  animals  are  kept  whenever  di-  ^°^' 

10  rected  so  to  do  by  the  director;   but  this  section  shall  not  apply  to  the 

11  inspection  of  sheep  or  swine  slaughtered  in  wholesale  slaughtering  estab- 

12  lishments,  or  to  the  obtaining  of  a  license  for  the  slaughtering  of  such 

13  sheep  or  swine. 

1  Section  20.     An  inspector  who  is  satisfied,  upon  an  examination  of  he'atthr'^  °' 

2  any  neat  cattle,  sheep  or  swine,  that  they  are  free  from  contagious  ^gg^'^^g"-  5  g 

3  disease,  shall  deliver  to  the  owner  or  to  the  person  in  charge  thereof  a  }?Qn'loS'|  I, 

4  written  certificate  of  their  condition,  in  such  form  as  the  director  shall  r.  l!  90, '§  is.  ' 

5  prescribe,  signed  by  the  inspector,  and  shall  enter  a  copy  of  said  certificate  1912!  eos!  1 4'. 

6  upon  liis  records.  1913, 329.  1919, 350,  §§  40, 44. 

1  Section  21.     An  inspector  who,  upon  an  examination  of  a  domestic  Quarantine  of 

2  animal,  suspects,  or  has  reason  to  believe,  that  it  is  afl^ected  with  a  con-  Lnimau. 

3  tagious  disease  shall  immediately  cause  it  to  be  quarantined  or  isolated  ilre!  24^§  i.^' 

4  upon  the  premises  of  the  owner  or  of  the  person  in  whose  charge  it  is  189^,491^  §'7. 

5  found,  or  in  such  other  place  as  he  may  designate,  and  shall  take  such  ^  ^l  go^'s^g^' 

6  other  sanitary  measures  to  prevent  the  spread  of  such  disease  as  may  be  1902,  no,  §  3. 

7  necessary  or  as  shall  be  prescribed  by  any  order  or  regulation  of  the  direc-  1913!  329! 

8  tor.    He  shall  also  deli-\'er  to  the  owner  or  person  in  charge  of  such  animal,  §s  46, 44.' 

9  or  to  any  person  having  an  interest  therein,  a  %\Titten  notice  or  order  of      p-  -  ■    —    • 

10  quarantine  signed  by  him,  in  such  form  as  the  director  shall  prescribe, 

11  'and  shall  enter  a  copy  of  said  notice  upon  his  records. 

1  Section  22.     Such  notice  or  order  may  be  served  by  an  inspector  or  service  of 

2  officer  qualified  to  serve  ci^•il  process,  by  delivery  in  hand  to,  or  lea\ing  quarantine. 

3  at  the  last  and  usual  place  of  abode  of,  the  owner  or  person  having  an  1399!  40s,'  §  25. 

4  interest  in  or  in  charge  of  the  animal  concerned,  or  by  posting  upon  the  fgi^^]  uhfis. 

5  premises  where  said  animal  is  quarantined  or  isolated.    A  copy  thereof,  }^}|'  ^^^;  ^  *• 

6  with  the  return  of  said  officer  or  inspector  thereon  that  such  service  has  J?^^^g^4^.f' 

7  been  made,  shall  be  competent  evidence  in  any  court  that  such  quarantine 

8  has  been  imposed.    If  an  animal  has  been  so  quarantined,  it  shall  remain 

9  in  quarantine  until  the  further  order  of  the  director. 


1308 


ANIMAL   INDUSTRY. 


[ClIAP.    129. 


Examinat 

ion 

of  barns.  < 

etc. 

1899, 

,408, 

§29. 

R.  L, 

90, 

24. 

1902, 

116, 

§3. 

1912, 

608, 

§  4. 

1913, 

329. 

1919, 

,350. 

§§  40,  44. 

Notice  of 

quarantine. 

1894, 

491, 

§9. 

1899, 

408, 

§27. 

R.  L. 

90.  i 

§22. 

1902, 

116, 

§3. 

1912, 

608, 

§  4. 

Records  o 

f 

inspectors  of 

animals. 

1894, 

491, 

§5. 

1899, 

408, 

§  19. 

R.  L. 

90, 

§15. 

1902, 

IIG, 

§3. 

1912, 

608, 

§4. 

1913, 

329. 

1916, 

147. 

1919, 

350, 

§§40 

1,  44. 

Provisions 

! 

applying  to 

Boston. 

1912, 

608, 

§7. 

Quarantine 

of  imported 

animals. 

1887, 

252, 

§20. 

1894, 

491, 

§63. 

1899, 

408, 

§12. 

R.  L. 

90,  §  10. 

1902, 

116, 

§3. 

1912, 

608, 

§4. 

Notice  of 

contagious 

diseases. 

1860, 

219, 

§9; 

221,  §  5. 

1878, 

24. 

1879, 

178. 

P.  S. 

90,  §§  9, 

15. 

1885, 

148, 

§§1. 

2. 

1887, 

252, 

§§6, 

7. 

1894, 

491. 

§§29 

,30. 

1899, 

408, 

§§14 

,  15. 

R.  L. 

90,  §  11. 

1902, 

116, 

§3. 

1908, 

515, 

§  1. 

1912, 

60S, 

§§4, 

5. 

1913, 

329. 

Expense  o 

f 

quarantine. 

1860, 

219, 

§1. 

1878, 

24,  §  1. 

P.  S. 

90,  §  1. 

1887, 

252, 

§  1. 

1894, 

491, 

§  27. 

1895, 

496, 

§9. 

1899, 

408, 

§  26. 

Section  2.3.  Inspectors  shall,  in  addition  to  their  inspections  of  ani- 
mals for  contagious  diseases,  examine  the  places  in  which  neat  cattle  are 
kept,  with  reference  to  their  situation,  cleanliness,  light,  ventilation  and 
water  supply,  and  the  general  condition  and  cleanliness  of  the  said  neat 
cattle,  and  shall  make  a  detailed  report,  with  names  and  residences  of 
owners,  to  the  director. 

Section  24.  An  inspector  who  has  caused  a  domestic  animal  to  be 
quarantined,  as  provided  in  section  twenty-one,  shall  immediately  give  a 
written  notice  thereof,  with  a  copy  of  the  order  of  quarantine,  to  the 
director,  and  shall  give  such  information  to  no  other  person. 


1913.329. 


1919,350,  §§40,44. 


Section  2.5.  Each  inspector  shall  keep  a  record  of  all  inspections  made 
by  liim  and  of  his  doings  therein,  and  shall  make  regular  returns  thereof 
to  the  division,  but  such  returns  need  not  be  retained  for  more  than  two 
years,  and  may  then  be  destroyed  or  disposed  of  by  their  lawful  cus- 
todian, and  any  proceeds  received  in  the  course  of  their  disposal  shall  be 
paid  to  the  commonwealth.  The  director  shall  prescribe  the  form  in 
which  and  the  times  at  which  such  records  and  returns  shall  be  made, 
and  may  at  any  time  inspect  them  and  make  copies  thereof. 


Section  27.  Animals  brought  into  this  commohwealth  from  places 
which  in  the  opinion  of  the  director  are  infected,  may  be  seized  and  quar- 
antined by  the  director  at  the  expense  of  their  owners  or  consignees,  so 
long  as  the  public  safety  requires;  and,  if  in  his  opinion  safety  so  requires, 
he  may  cause  such  animals  to  be  killed  without  appraisal  or  payment. 

1913,  329.  1919,  350,  §§  40,  44. 


Section  26.  The  provisions  of  this  chapter  relative  to  the  duties  of  1 
inspectors  shall  apply  to  persons  officially  performing  the  functions  of  2 
inspectors  in  Boston.  3 


Section  28.    The  board  of  health  of  a  town,  any  member  or  agent  1 

thereof  or  any  other  person  who  has  knowledge  of  or  reason  to  suspect  2 

the  existence  of  any  contagious  disease  among  any  domestic  animals  in  3 

the  commonwealth,  or  that  any  domestic  animal  is  affected  with  a  con-  4 

tagious  disease,  whether  such  knowledge  is  obtained  by  personal  exaini-  5 

nation  or  otherwise,  shall  immediately  give  written  notice  thereof  to  the  6 

director,  or  to  an  inspector  for  the  town  where  the  animal  is  kept.    ^Vho-  7 

ever  fails  to  give  such  notice  shall  be  punished  by  a  fine  of  not  more  than  8 

one  hundred  dollars.    Upon  the  receipt  of  such  notice  by  said  inspector,  9 

he  shall  proceed  as  provided  in  sections  twenty-one,  twenty-two,  twenty-  10 

four  and  twenty-nine.    Upon  receipt  of  such  notice  by  the  director  he  shall  1 1 

inspect  or  cause  his  agent  to  inspect  such  animal,  and  thereafter  shall  12 

proceed  as  provided  in  section  eleven  or  fourteen,  as  the  case  may  be.  13 

1919,  350,  §§  40,  44. 

Section  29.     If  animals  have  been  quarantined,  collected  or  isolated  1 

upon  the  premises  of  the  owner  or  of  the  person  in  possession  of  them  at  2 

the  time  such  cjuarantine  is  imposed,  the  expense  thereof  shall  be  paid  by  3 

such  owner  or  person;  but  if  specific  animals  have  been  quarantined  or  4 

isolated  under  section  eight  or  twenty-one  for  more  than  ten  days  upon  5 


Chap.  129.]  animal  industry.  1309 

6  such  premises,  as  suspected  of  being  affected  with  a  contagious  disease,  R.  l  oo,  §  21. 

7  and  the  owner  is  forbidden  to  sell  any  of  the  product  thereof  for  food,  or  1  Op.  a.  g.  372. 

8  if  animals  have  been  quarantined,  collected  or  isolated  on  any  premises 

9  other  than  those  of  such  owner  or  person  in  possession  thereof,  the  ex- 
10  pense  of  such  quarantine  shall  be  paid  by  the  commomvealth. 

1  Section  30.     An  animal  which  has  been  quarantined  or  isolated  by  Quarantine. 

2  order  of  the  director  or  of  his  agent,  or  of  an  inspector,  shall,  during  the  aiUes. 

3  continuance  of  such  quarantine  or  isolation,  be  deemed  to  be  affected  with  I'sra!  its! 

4  a  contagious  disease.    Whenever  an  animal  has  been  released  from  quar-  iss^7,^2°52!  M4. 

5  antine  by  order  of  the  director  the  same  animal  shall  not  again  be  quar-  J|g|'  |gj;  ^  *■ 

6  antined  or  isolated  by  an  inspector  during  the  period  of  thirty  days  ||g9''408 

7  immediately  following  such  release  except  upon  order  of  the  director.  H  32,  ac' 

8  Whoever  knowingly  breaks  or  authorizes  or  causes  to  be  broken  a  quar-  §§'  25, 29. 

9  antine  so  imposed,  or  whoever,  contrary  to  such  order  of  quarantine  or  1912',  eos!  §  i. 

10  isolation,  knowingly  removes  an  animal  or  authorizes  or  causes  it  to  be  igilisg!'' 

11  removed  from  a  building,  place  or  enclosure  where  it  is  quarantined  or  ^l^lo^lf' 

12  isolated,  or  whoever,  contrary  to  an  order  or  notice  of  quarantine,  know-  1  Op-  ^-  '^-  "^■ 

13  ingly  places  or  causes  or  authorizes  to  be  placed  any  other  animals  within 

14  a  building,  place  or  enclosure  where  an  animal  is  quarantined,  or  in 

15  contact  therewith,  or  whoever  knowingly  conceals,  sells,  removes  or  trans- 

16  ports,  or  knowingly  causes  or  authorizes  to  be  concealed,  sold,  removed 

17  or  tran.sported,  an  animal,  knowing  or  having  reasonable  cause  to  be- 

18  lieve  that  it  is  affected  with  a  contagious  disease,  or  whoever  knowingly 

19  authorizes  or  permits  such  animal  to  go  at  large  upon  any  public  way 

20  within  the  commonwealth,  or  whoever  knowingly  brings  or  authorizes 

21  or  permits  to  be  brought  from  another  country,  state,  district  or  territory 

22  into  this  commonwealth,  an  animal  which  is  affected  with  or  has  been 

23  exposed  to  a  contagious  disease,  or  whoever  disobeys  a  lawful  order  or 

24  regulation  of  the  director  or  of  any  of  his  agents  or  of  inspectors  in  the 

25  performance  of  their  duty  under  this  chapter,  shall  be  punished  by  a 

26  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not 

27  more  than  one  year,  or  both. 

1  Section  31.     If  an  owner  is  entitled  to  compensation  for  the  killing  Assessment 

2  of  an  animal  or  the  destruction  of  other  property  under  this  chapter,  i894,49i,|46. 

3  and  cannot  agree  with  the  director  as  to  its  value,  the  director  and  the  iggg;  403!  §  33! 

4  owner  may  each  select  an  arbitrator,  and  if  the  owner  neglects  or  refuses  }902' ne.S^s! 

5  to  select  an  arbitrator  within  twenty-four  hours  after  notice  tliat  the  JgJs'log- 

6  director  has  selected  one,  the  arbitrator  selected  by  the  director  may  jijt,i|j     g 

7  select  another.    In  each  case  if  the  two  arbitrators  cannot  agree  as  to  i9i8!257; 

8  the  value,  they  may  select  a  third.     The  arbitrators  shall  be  sworn  to  igw.'s;  350, 

9  the  faithful  performance  of  their  duties  and  shall  determine  the  value  i92o%^*' 

10  within  the  limits  provided  by  sections  eleven  to  fourteen,  inclusive,  and 

11  the  amount  so  fixed  shall  be  paid  to  the  owner. 

12  If  the  owner's  right  to  compensation  is  in  dispute,  if  either  party  pre- 

13  fers  to  submit  the  amount  of  damages  to  judicial  determination,  or  if  the 

14  award  of  the  arbitrators  is  unsatisfactory  to  either  party,  the  owner  or 

15  the  director  may,  within  thirty  days  after  the  killing  of  such  animal  or 

16  the  destruction  of  such  property,  or,  if  arbitrators  have  been  appointed, 

17  within  thirty  days  after  the  date  of  their  award,  file  a  petition  for  the 

18  assessment  of  damages  in  the  superior  court  for  Suffolk  county  or  for  the 

19  county  where  the  killing  or  destruction  occurred.    A  copy  of  the  petition 


1310 


ANIMAL  INDUSTRY. 


[CiLiP.    129. 


shall  be  served  upon  the  adverse  party.  If  upon  such  petition  it  appears  20 
that  the  owner  is  entitled  by  law  to  compensation,  the  damages  shall  be  21 
assessed  under  chapter  seventy-nine  within  the  limits  provided  by  sec-  22 
tions  eleven  to  fourteen,  inclusive,  of  this  chapter.  The  damages,  costs  23 
and  expenses  incurred  by  the  director  in  prosecuting  or  defending  the  peti-  24 
tion  shall  be  paid  by  the  commonwealth.  25 


Use  of  tuber- 
culin restricted, 

1S95,  49G,  §  U. 

1896,  270. 

1897,  105. 
1899,  408,  §  42. 
R.  L.  90,  §  31. 
1903,  322. 


No  compen- 
sation in  cer- 
tain cases  for 
animals  tested 
with  tuberculin. 
1S97,  499. 
1899,  408,  §  43. 


No  compen- 
sation to 
violators  of 
regulations. 
1899,  408,  §  44. 
R.  L.  90,  §  33. 


Section  32.     Tuberculin  as  a  diagnostic  agent  for  the  detection  of  1 

tuberculosis  in  domestic  animals  shall  be  used  only  upon  cattle  brought  2 

into  the  commonwealth  and  upon  cattle  in  quarantine  stations  at  Brigh-  3 

ton,  Watertown  and  Somerville;   but  it  may  be  used  as  such  diagnostic  4 

agent  on  any  animal  in  any  other  part  of  the  commonwealth,  with  the  5 

written  consent  of  the  owner  or  person  in  possession  thereof,  and  upon  6 

animals  which  have  been  reported  as  tuberculous  upon  physical  exam-  7 

ination  by  a  competent  veterinary  surgeon.     Such  tests  by  the  use  of  8 

tuberculin  shall  be  made  without  charge  to  citizens  of  the  commonwealth,  9 

and  in  all  other  cases  the  expense  of  such  tests  shall  be  paid  by  the  owner  10 

of  such  animals  or  by  the  person  in  possession  thereof.  1 1 

Section  33.     A  person  who  has  animals  tested  with  tuberculin  shall  1 

not  be  entitled  to  compensation  from  the  commonwealth  for  any  animals  2 

which  react  to  the  tuberculin  test  unless  they  have  been  tested  by  the  3 

director  or  his  agents,  acting  in  their  official  capacity.        R-  l.  9o,  §  32.  4 

1902,  116,  §  3.       1912,  008.  §  4.        1913,  329.         1919,  350,  §§  40,  44. 

Section  34.     No  compensation  shall  be  allowed  by  the  common-  1 

wealth  to  an  owner  of  condemned  cattle  who  has  failed  to  comply  with  2 

the  reasonable  regulations  of  the  director  relative  to  cleanliness,  ventila-  3 

tion,  light,  disinfection  and  water  supply.    An  owner  of  cattle  who  re-  4 

fuses  to  comply  with  anj'  such  regulation  shall  be  punished  by  a  fine  of  5 

not  more  than  fifty  dollars.  6 


Certain  ca 

ttle 

not  tc 

.bed 

riven 

on  streets, 

etc. 

1870, 

137. 

P.  S. ' 

90. 

§§20 

-28. 

1887, 

252, 

M21 

-33. 

1894, 

491, 

§§54 

-50. 

1899. 

408. 

§§  38-40. 

R.L. 

90,  § 

SO 

1902, 

116, 

§3. 

1912, 

COS, 

§4. 

Notice  to 

be  gi- 

ven  of 

contagious 

s 

diseases- 

1894, 

491, 

§35. 

1899, 

408, 

§34. 

R.L. 

90,  i 

)27. 

1902, 

110, 

§3. 

1908, 

515, 

§  2. 

1912, 

608, 

§■4. 

1913, 

329. 

1919, 

3.50, 

§§  40,  44. 

Section  35.  Texan,  Mexican,  Cherokee,  Indian  or  other  cattle, 
which  the  director  has  reason  to  believe  may  spread  contagious  disease, 
shall  not  be  driven  on  any  public  way  or  road,  or  outside  the  stockyards 
connected  with  any  railroad  in  the  commonwealth,  contrary  to  an  order 
of  the  director,  and  they  shall  be  kept  in  dift'erent  pens  from  those  in 
which  other  cattle  are  kept  in  all  stockyards  in  the  commonwealth. 
Whoever  violates  any  provision  of  this  section  shall  be  punished  by  a 
fine  of  not  less  than  twenty  nor  more  than  one  hundred  dollars. 

1913,  329.  1919,  350,  §§  40,  44. 


Section  36.     Whoever  kills  an  animal  or  causes  it  to  be  killed,  with  1 

the  consent  of  the  owner  or  person  in  possession  thereof,  upon  suspicion  2 

that  it  is  affected  -nath  or  has  been  exposed  to  a  contagious  disease,  and  3 

who,  upon  the  inspection  of  the  carcass  thereof,  finds  or  is  of  opinion  4 

that  it  is  affected  ^\^th  a  contagious  disease,  shall  forthwith  notify  such  5 

owner  or  person  in  possession  thereof,  and  the  director  or  an  inspector  6 

for  the  town  where  such  animal  was  kept,  of  the  existence  of  such  dis-  7 

ease,  and  of  the  place  where  the  animal  was  found,  the  name  of  the  8 

owner  or  person  in  possession  thereof  and  of  the  disposal  made  of  such  9 

carcass.     Wlioever  \-iolates  any  proNasion  of  this  section  shall  be  pun-  10 

ished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  11 

ment  for  not  more  than  two  months,  or  both.  12 


ClL-lP.  130.]      POWDERS,  ETC.,  OF  DIVISION  OF  FISHERIES  AND  GAME.      FISHERIES. 


1311 


1  Section  37.     The  superior  court  shall  have  jurisdiction  in  equity  to  Enforcement 

2  enforce  this  chapter  and  restrain  violations  thereof.  °'  provisions. 


189-1,491,  §  58. 


1899,  408,  §  41. 


R.  L.  90,  §  34. 


Section  38.  The  commissioner  of  conservation  shall  make  an  annual  f'sTy^'^'s^Tig' 
report  of  the  acts  of  the  director,  including  therein  the  information  ob-  i*^;*'  ^sii  §  si- 
tained  from  inspectors  under  section  twenty-three.  §§3,29. ' 


R.  L.  90.  §§  3,  24. 
1902,  116,  §  3. 


1912,  008,  §  4. 

1913,  329. 


1919,  350,  §§  8,  40,  44. 


REFERENCE. 
Examination  of  sheep  at  demonstration  sheep  farms.  Chap.  128,  §  10. 


CHAPTER     130 


POWERS  AND  DUTIES  OF  THE  DIVISION  OF  FISHERIES  AND  GAME. 

FISHERIES. 


Sect. 

1.  Definitions. 


GENERAL    PROVISIONS. 

2.  Enforcement  of  fish  and  game  laws, 

etc. 

3.  Penalty. 

4.  Powers  of  director,  wardens  and  depu- 

ties. 

5.  May  arrest  without  warrant. 

6.  Search  may  be  made  for  fish  or  game 

illegally  taken. 

7.  Search  warrants. 

8.  Persons    taking,    killing,    etc.,    birds, 

etc.,  to  display  them  for  inspection. 

9.  Duties  in  respect  to  forest  fires,  etc. 

10.  Certain    old    documents  may  be   de- 

stroyed. 

11.  Directormay  investigate  as  to  fisheries 

and  game. 

12.  Penalty   for  entering,   without   right, 

buildings,  etc.,  used  by  the  director 
in  scientific  investigations. 

13.  Disposition  of  certain  fines,  etc. 


14. 


FISHING    LAW. 

Director  may  take  fish  for  fish  culture. 


15.  Stocking  brooks  with  food  fish. 

16.  Discharge  of  waste  material  into  cer- 

tain streams  prohibited. 

Director  may  examine  dams,  make 
and  serve  orders.  Courts  may  en- 
force orders. 

Penalty  for  not  keeping  fish  way  open. 

Director  may  build  fish  ways,  etc. 

20.  Compensation  for  land  taken. 

21.  Screening  ponds  and  rivers. 


17 


18. 
19. 


Sect. 

22.  Director  may  enter  on  land,  etc. 

FISHING    LICENSE. 

23.  License  to  fish  in  stocked  waters. 


FISHERIES    IN    GREAT    PONDS. 

24.  Certain  ponds  public. 

25.  Director  may  control  certain  ponds. 

26.  Notices  of  such  occupation. 

27.  Penalty. 

28.  Stocking  pond  with  food  fish. 

29.  Fishing  in  MUl  pond. 

30.  County     commissioners     to     measure 

great  ponds. 

31.  Selectmen  may  measure  certain  ponds. 

32.  Exclusive  fishery  of  riparian  owners. 

33.  Acquisition  of  exclusive  fishery. 

34.  Penalty    for    taking    fish    in    certain 

ponds. 

35.  Use  of  nets  in  ponds  regulated. 


CONTROL       OF 


RIPARIAN 


FISHERIES       BT 
PROPRIETORS. 

36.  Enclosure  of  unnavigable  streams. 

37.  Ownership   of   fish  artificially   propa- 

gated. 

Penalty  for  fishing  where  fish  are  arti- 
ficially propagated. 

Definition  of  navigable  streams. 

Governor  may  define  tidal  bounds  and 
mouths  of  streams. 

Governor  may  limit  fishing  in  certain 
waters.     Penalty. 

42.  Owners  of  certain  streams  to  control 

fisheries. 

43.  Fishing  with  sweep  seines. 


38. 


39 
40 


41 


1312 


POWERS,  ETC.,  OF  DIVISION  OF  FISHERIES  Airo  GAME.     FISHERIES.      [ChAP.  130. 


Sect. 

herring,  alewives  and  shad. 

44.  Towns   may    open    ditches,    etc.,    to 

create  herring  fisheries. 

45.  Towns  shall  own  such  fisheries. 

46.  Penalty   for   fishing  in   such   fisheries 

without  permission. 

47.  Rights  under   contracts,  etc.,  not  af- 

fected. 

48.  Penalty  for  illegal   taking  of  shad  or 

alewives. 

TROUT. 

49.  Provisions  as  to  possession  or  sale  of 

trout. 
60.  Provisions  as  to  fishing  for  trout. 

51.  Limit  of  catch. 

52.  Artificially  propagated  trout.    License. 

53.  Penalty. 

54.  Establishing  rearing  stations  for  trout 

in  certain  counties. 

55.  Trout     and     spawn,     conditions      of 

furnisliing. 


56.  Commissioner  to  make  regulations  for 

taking  salmon. 

57.  Protection  of  salmon  fry. 

PICKEREL. 

5S.  Close  season  for  pickerel.     Penalty. 

59.  Taking,  etc.,  short  pickerel.     Penalty. 

60.  Taking,  etc.,  of  pickerel  may  be  regu- 

lated, etc. 

WHITE    PERCH. 

61.  Restrictions  on   the   taking   of   white 

perch.     Penalty. 

PIKE    PERCH. 

62.  Possession  of  certain  pike  perch  pro- 

hibited.    Seizure  without    warrant, 
and  sale.     Penalty. 

POLLOCK    AND    MACKEREL. 

63.  Seining  of  pollock  and  spike  mackerel. 

Penalty. 

BLACK    BASS. 

64.  Close  season  for  black  bass.     Limit  of 

length. 

65.  Granting,  etc.,  of  licenses  for  propaga- 

tion. 

66.  Penalty. 

SMELTS. 

67.  Penalty   for   selling,   etc.,   smelts   be- 

tween certain  dates. 

68.  Permits  to  take  smelts  in  great  ponds. 

69.  Penalty  for  taking  smelts  except  with 

hook  and  line. 

70.  Prohibition  not  to  extend  to  certain 

counties,  etc. 

71.  Use  of  net,   seine,   etc.,  for  catching 

smelts  in  Boston  harbor,  etc.,  pro- 
hibited. 


Sect. 

72.  Possession  of  net,  etc.,  prima  facie  evi- 

dence. 

73.  Penalties. 

74.  Searches ;  seizure  and  libelling  of  prop- 

erty. 

MISCELLANEOUS     PROVISIONS     RELAXrVE      TO 
FISH. 

75.  Shiners  may  be  taken  for  bait. 

76.  Forfeiture   of    fish,    boats   and   appa- 

ratus. 

77.  Keepers  of  fish  markets,  etc.,  to  give 

information     of     unlawful     taking. 
Penalty. 

78.  Introduction  of  fish  into  state  waters. 


CERTAIN    SHELLFISH    AND    EELS. 

79.  Taking  of  scallops  regulated. 

80.  Not  to  be  taken  between  April  first 

and  October  first,  etc. 

81.  Taking  Umited. 

82.  Modification  of  close  season,  etc. 
S3.  Penalty. 

84.  City  and  town  officers  may  regulate 

the  taking  of  certain  fish,  etc. 

85.  Cities  and  towns  may  grant  licenses 

for  the  planting,  etc.,  of  quahaugs. 

86.  Additional  license  may  be  granted  to 

bed  quahaugs,  etc. 

87.  Na\dgable  water  not  to  be  obstructed. 

Hearing.     Contents  of  and  record- 
ing licenses.     Survey,  etc. 

88.  No  person  except  the  Hcensee  to  take 

quahaugs,  etc. 

89.  Superior  court  may  appoint  a   com- 

mission to  determine  if  licensee  is 
acting  in  good  faith,  etc. 

90.  Licensee     to     have     exclusive     use. 

Action  and  penalty  for  taking,  etc., 
without  licensee's  consent. 


LOBSTERS. 

91.  Penalty  for  taking  female  lobsters. 

92.  Director  may  purchase  lobsters,  mth 

eggs    attached,    caught    along    the 
shore  of  the  commonwealth,  etc. 

93.  Purchased    lobsters    to    be    marked; 

possession    of    such    lobster,    etc., 
prohibited. 

94.  Sale  of  lobsters,  etc.,  regulated. 

95.  Penalty  for  unlawfully  selling,  etc.,  lob- 

ster meat. 

96.  Penalty  for  imlawful  transportation  of 

lobster  meat. 

97.  Lobster   meat   unlawfully    sold,    etc., 

may  be  confiscated. 

98.  Not  to  affect  sale  of  certain  lobsters, 

etc. 

99.  Penalty  for  selling,  etc.,  small  lobsters. 

100.  Penalty  for  mutilation. 

101.  State  police  to  enforce. 

102.  Right  of  search. 


Chap.  130.]    powers,  etc.,  of  division  of  fisheries  and  game,    fisheries. 


1313 


Sect. 

103.  Protection  of   lobster  industry.      Pen- 

alty. 

104.  Licenses. 

105.  Revocation  of  license. 

106.  Report  by  licensee,  etc. 

107.  Hours  for  drawing  lobster  pots. 
lOS.   Penalty. 

109.  Investigation  of  habits  of  lobsters,  etc. 

110.  Transportation  of  lobsters  regulated. 

111.  Penalties. 

112.  Enforcement  of  sections  110  and  111. 

113.  Proceedings  in  case  of  seizure  of  lob- 

sters. 

FISHING     FOR     LOBSTERS,     TAUTOG,     ETC.,     IN 
CERTAIN    W.ITERS. 

114.  Prohibition  of  taking  lobsters,  etc.,  in 

certain  waters. 

115.  Boundaries  defined. 

116.  Penalty  if  certain  statutes  have  been 

accepted. 

117.  Prohibition  of  taking  lobsters  in  wa- 

ters of  Provincetown. 

OYSTERS. 

118.  Penalty  for  unlawfully  destroying  oy.s- 

ters. 

119.  Selectmen  may  give  permits  to  take 

oysters. 

120.  Granting  of  licenses   for   the  cultiva- 

tion of  oysters  in  Barnstable,  Bris- 
tol, Dukes  and  Nantucket.  Boun- 
daries, etc. 

121.  Licensees  to  make  annual  report,  etc. 

122.  Application  for  license,  etc. 

123.  Fees. 

124.  License  number  to  be  displayed. 

125.  Taking    of    oysters    between    certain 

hours  prohibited. 

126.  Penalty  for  injuring  boundary  marks, 

etc. 

127.  Penalty  for  injuring  or  unlawfully  tak- 

ing planted  oysters. 

128.  Penalty  for  placing  stones,  scoopings, 

etc.,  on  oyster  beds,  etc. 

129.  Arrest  and  detention  of  offenders. 

130.  No  territory  to  be  granted  in  polluted 

waters. 

131.  Granting   of   licenses   in   counties   not 

covered  by  section  122.  Revocation. 
Penalties. 

132.  Hours  for  taking  oysters. 

133.  Penalty    for    taking  oysters   from    li- 

censed flats  without  permission. 


.Sect. 

134.  Penalty  for  using  dredge,   etc.,  upon 

private  oyster  beds. 

GENER.\L    PROVISIONS    RELATIVE    TO    SHKLL- 
FISH. 

135.  Pen.alty     for     taking     shellfish,    other 

than  oysters,  except,  etc. 

136.  Indians  not  within  prohibition  of  sec- 

tions 118,  119  and  135. 

137.  Taking  of  shellfish  from  contaminated 

waters  regulated. 

138.  Local  boards  of  health  may  grant  per- 

mits to  take  clams  or  ciuahaugs  for 
bait,  etc. 

139.  Person    holding    permit    to    keep    the 

same  on  his  person,  etc.     Penalty. 

140.  Penalty  for  violation  of  permit. 

141.  Penalty  for  sale,  etc.,  of  clams,  etc., 

taken  from  polluted  waters. 

142.  Penalties  for  taking  oysters,  etc.,  from 

prohibited  waters,  etc. 

143.  Cities   and    towns  may  make   appro- 

priations for  cultivation,  etc.,  of 
shellfish.  May  declare  close  season, 
etc. 

144.  Penalty,  etc. 

REGULATION    OF    FISH    WEIRS,    NETS,    PURSES 
AND    SEINES. 

145.  Town     officers     may     authorize     fish 

weirs,  etc. 
140.  Penalty  for  injuring  such  fish  weirs. 

147.  Penalty  for  constructing  unauthorized 

fish  weirs. 

148.  Owners  of  fish  weirs,  lobster  pots,  etc., 

to  make  returns.  Lobster  cars  to 
be  marked.     Penalty. 

MISCELLANEOUS    PROVISIONS. 

149.  Penalty    for    taking    fish,    etc.,    from 

traps,  etc.  • 

1.>11.   Penalty  for  taking  certain  fish  excejjt 
with  hook  and  line. 

151.  Penalty  for  poisoning  fish. 

152.  Officers  to  prosecute. 

153.  Prosecutions  under   this  chapter  lim- 

ited. 

154.  Town  officers  to  enforce   certain  sec- 

tions. 

155.  Bounty  on  seals.   Certificate.   Penalty. 

KELP    AND    SE.AWEED. 

156.  Kelp,  etc.,  adrift. 

157.  Special  laws  not  repealed. 


1  Section  1.     In  this  chapter,  the  following  Mords  shall  have  the  fol-  Definitions. 

2  lowing  meanings: 

3  "Angling",  fishing  with  hand  line  or  rod,  with  naturally  or  artificially 

4  baited  hook. 

5  "Deputy",  a  deputy  fish  and  game  warden  appointed  under  section  nm.wr. 

6  seven  of  chapter  twenty-one. 

7  "Director",   director  of  the  division  of  fisheries  and  game  of  the  lom, .3.-.0, 

8  department  of  conservation. 


1314 


POWERS,    ETC.,    Ill''    DniSKiN    OF   FISHERIES   AND    GAME.       [ClIAP.    130. 


iftu'.  4r„-,,  § ,.        «  Warden  ",  a  fi.sh  and  game  warden 
chapter  twenty-one. 


iippointed  under  section  seven  of     9 

10 


Enforcement 
of  fish  and 
game  laws, 
etc. 

1S69,  3S4,  §  .•!. 
P.  S.  fll,  §:i, 
1SS4.  212.  §  :i. 
1S97,  2SS.  5  1, 
R.  L.  01,  §;i 
1905,  407. 
1908,  417, 
5«  1,3. 

1910,  575,  §  1. 
1912,  4fi5,  I  1. 
19i:!.  2.i0. 
1917,  271,  §  I. 
1919,  3,50. 
§§  43,  102. 


GENERAL   PRtlVISIONS. 

Section  2.  Thq  director,  wardens,  deputies  aiul  state  police  shall  1 
enforce  the  laws  relating  to  fish,  birds,  mammals  and  game.  They  may  2 
seize  and  remove,  summarily  if  need  be,  at  the  expense  of  the  owner  3 
using  or  maintaining  the  same,  all  illegal  obstructions,  except  dams,  mills  4 
or  machinery,  to  the  passage  of  migratory  fish.  The  wardens  and  depii-  .5 
ties,  when  on  duty,  shall  wear  and  display  a  metallic  badge  bearing  the  6 
seal  of  the  commonwealth  and  the  words  "fish  and  game  warden"  or  7 
"deputy  fish  and  game  warden",  as  the  case  may  be.  Th6  director,  8 
with  tjie  approval  of  the  governor,  may  in  writing  authorize  any  warden  9 
to  have  in  his  possession  and  carry  a  re^'olver,  club,  billy,  handcufi^s  and  10 
twisters,  or  such  other  weapon  or  article  required  in  the  performance  of  11 
his  official  dutv.  12 


Penalty. 
1908.  417 


5  2  Section  3.  Whoever,  not  being  a  warden  or  deputy,  possesses  or  1 
191''' 4^5'  1 1  '^^'Cfirs  the  badge  described  in  the  preceding  section  shall  be  punished  by  2 
ii)i.3:  2.w: ''       a  fine  of  ten  dollars.  3 


Powers  of 
dirertor. 
wardens  and 
deputies. 
lilOS,  417.  5  1. 
1910,  57.J,  §  1. 
1912,  4lo.  §  1 


Section  4.  The  director,  wanlens  and  deputies  shall  have  and  exer- 
cise throughout  the  commonwealth,  for  the  enforcement  of  the  laws 
relating  to  fish,  birds,  mammals,  game  and  dogs,  all  the  powers  of  con- 
stables, except  the  service  of  ci\'il  process,  and  of  police  officers. 

1913,  2.50.  1917,  271,  §  1.  1919,  350,  §  43. 


May  arrest 
without 
warrant. 
1880,  270,  §  8. 
1893,  lO.'i. 
1897,288,  §  1. 
R.  L.  91,  §  4. 
1905,  407. 
1910,57.5.  §  1. 
1912.  4115.  §  1 
191.-5,  250. 


Section  5.  The  director,  wardens,  deputies,  state  police  and  all 
officers  qualified  to  serve  criminal  process  may  arrest  without  a  warrant 
any  person  found  violating  any  of  the  fish  or  game  laws,  except  that 
persons  engaged  in  the  business  of  regularly  dealing  in  the  buying  and 
selling  of  game  as  an  article  of  commerce  shall  not  be  so  arrested  for 
ha\'ing  in  possession  or  selling  game  at  tlieir  usual  place  of  business. 

1919.  350,  §§  43,  102.  158  Mass.  149.  193  M.iss.  280.  Op.  A.  G.  (1920)  215. 


Search  nia.v 
be  made  for 
fisli  or  game 
illeffallv  taken 
1904,  3l'i7.  §  1. 
1910,  .54S; 
575,  §  1 
1912,40 
1913,  2.50. 
1919.  350, 
§102. 
203  Mass. 
Op.  A.  G. 
(1920)  177 


R5.  5  1. 


Ifi. 


Section  (3.     The  director,  a  warden,  deputy  or  state  police  officer,  1 

may,  without  a  warrant,  search  any  boat,  car,  box,  locker,  crate  or  2 

package,  and  any  building,  where  he  has  reason  to  believe  any  game  or  3 

fish  unlawfully  taken  or  held  mn\  be  found,  and  may  seize  any  game  4 

or  fisli  so  taken  or  held,  which  shall  be  disposed  of  in  such  manner  as  the  5 

director  deems  for  the  best  interests  of  the  commonwealth;    provided,  6 

that  this  section  shall  not  authorize  entering  a  dwelling  house,  or  apply  7 

to  game  or  fish  passing  through  this  commonwealth  under  authority  of  8 

the  laws  of  the  United  States.  9 


Searcli 
warrants. 
1904,  3IJ7,  §  2. 


Section  7.     A  court  or  justice  authorized  to  issue  warrants  in  crim-  1 

inal  cases  shall,  upon  a  sworn  complaint  that  the  complainant  believes  2 

that  any  game  or  fish  unlawfully  taken  or  held  is  concealed  in  a  par-  3 

ticular  place,  other  than  a  dwelling  house,  if  satisfied  that  there  is  rea-  4 

sonable  cause  for  such  belief,  issue  a  warrant  to  search  therefor.     Tlie  5 

warrant  shall  designate  and  describe  the  place  to  be  searched  and  the  G 

articles  for  which  search  is  to  be  made,  and  shall  be  directed  to  any  7 

officer  named  in  the  preceding  section  commanding  liim  to  search  the  8 

place  where  the  game  or  fish  for  whicli  he  is  recjuired  to  search  is  believed  9 


to  be  concealed,  and  to  seize  such  game  or  fish. 


10 


C'[IAP.    loO.]      POWERS,    ETC.,    (IF   DRISION   OF   FISHERIES   AND    GAME.  1315 

1  Section  8.     The  director  or  a  warden  may  request  any  person  whom  Persons 

2  he  reasonably  believes  to  be  engaged  in  unlawfully  taking,  killing,  hunt-  etc.'.°bi'rds!'efc.. 

3  ing  or  snaring  fish,  birds  or  animals  to  forthwith  display  for  inspection  'orlnTpec^tion™' 

4  all  fish,  birds  and  animals  then  in  his  possession;   and  said  director  or  }a?ol75  §  i 

5  warden  may  arrest  without  warrant  a  person  refusing  to  comply  \\ith  JjjJ^.  ^ss,  §  i. 

6  such  request.  i9i9,  soo,  §  43.  203  Wass.  sie. 

1  Section  9.     The  director,  a  warden  or  deputy  may  arrest  without  Duties  in 

2  a  warrant  any  person  found  unlawfully  setting  a  fire  and  may  require  foresTfires, 

3  assistance  according  to  section  ten  of  chapter  forty-eight.    They  shall  1907.299; 

4  take  precautions  to  prevent  the  progress  of  forest  fires,  or  the  improper  {afo^sys  5  j 

5  kindling  thereof,  and  upon  the  discovery  of  any  such  fire  shall  imme-  j^}^'  ^||  |  ^ 
G  diately  summon  the  necessary  assistance,  and  notify  the  local  forest  1013!  250! 

7  \\arden.    The  warden  and  deputies  shall  report  to  the  state  fire  warden 

8  monthly  their  doings  under  this  section;   they  shall  report  to  him  the 

9  situation  and  extent  of  any  forest  fire  occurring  within  their  respective 
10  districts. 

1       Section  10.    The  director  may  de.stroy  from  time  to  time  license  Certain  oU 


o 


books,  stubs,  licenses  and  license  blanks,  after  the  same  have  been  nmy  b™  '^ 

3  properly  audited  by  the  state  auditor,  and  also  old  examination  papers,  i913,°2B9.' 

4  old  applications  for  himters'  licenses,  old  applications  for  fish,  quadru- 

5  peds  and  birds,  and  such  other  like  documents  as  the  director  deems 
G  advisable,  after  the  same  have  been  noted  on  the  official  records. 


may- 
investigate  as 


1  Section  11.     The  director  may  investigate  questions  relating  to  fish,  Dircetor 

2  fisheries   or  game,  and  may,  personally  or  by  assistants,  institute  and  to^Shlfnes 

3  conduct  inquiries  pertaining  to  such  questions.  1902.  its.  '""'  ^''""'' 

1  Section  12.     Whoever  \\  ilfidly  and  without  right  enters  in  or  upon  Penalty  lor 

2  an\-  building  or  other  structure  or  any  area  of  land  or  water  set  apart  ™thou't'right, 

3  and  used  by  or  under  authority  of  the  director  for  conducting  scientific  et^'.'fS  by 

4  experiments  or   investigations  after  the  director  has  caused  printed  'j^  seleSfe 

5  notices  of  such  occupation  and  use  and  the  purposes  thereof  to  be  placed  ''"„«?'''r,'l*'°"^- 

6  in  a  conspicuous  position  adjacent  to  any  such  areas  of  land  or  water 

7  or  upon  any  such  building  or  other  structure,  and  whoever  wilfully  and 

8  maliciously  injmes  or  defaces  any  such  building  or  other  structure  or 

9  any  notice  posted  as  aforesaid,  or  injures  or  destroys  any  property  used 

10  in  such  experiments  or  investigations,  or  otherwise  interferes  therewith, 

1 1  shall  be  punished  by  a  fine  of  not  more  than  two  hundred  dollars  or  by 

12  imprisonment  for  not  more  than  six  months.  The  director,  wardens 
l-'J  and  deputies  may  arrest  without  warrant  any  person  found  violating 
14  any  provision  of  this  section. 

1  Section  13.     All  fines,  penalties  and  forfeitures  recovered  in  prosecu-  Disposition 

2  tions  under  the  laws  relative  to  fisheries  or  to  birds,  animals  and  game,  finer'etc" 

3  except  as  provided  in  section  ninety-nine,  shall  be  equally  divided  be-  H^] }°x-  ^  ^^ 

4  tween  the  county  where  such  prosecution  is  made  and  the  common-  ^^j  %^i7, 

5  wealth;  provided,  that  if  the  prosecuting  officer  is  a  warden  receiving  ||jj'3S4'|33 
G  compensation  from  the  commonwealth,  such  fines,  penalties  and  for-  'So'ijjg'l^, 
7  feitures  shall  be  paid  to  the  commonwealth.  isso,  ei,  §  3. 


1881,  276.  §  3. 

1890,  390. 

190.5,  44,-1. 

1912,  465,  §  1. 

P.  S.  91.  §§Sd, 

104; 

1.S9S.  20."S. 

1907,  300. 

1913,  250. 

92.  §  11. 

1899,  .jlJO. 

1908,  330. 

108  Mass.  139. 

18811,  2715,  §  9. 

R   l.,91,§137i 

;  92,  §20. 

1910,  575, 

§1. 

Op.  A.  G.  (1920)  87. 

1316 


FISHERIES. 


[Chap.  130. 


FISHING  LAW. 

SlTfish  "^^         Section  14.    The  director  may  take  fish  at  any  time  or  in  any  manner     1 
cuUure,  eto        ^^^  puTposes  Connected  with  fish  cultm-e  or  scientific  observation.  2 

ISfiS,  130,  §  3;  1809,  76,  §  2;  P.  S.  91,  §  20, 

179,  §  2.  384,  §  5.  R.  L.  91,  §  U. 


Stocking 
brooks  witii 
food  fish. 
1900,  284. 
R.  L.  91,  5  5. 


Section  15.  If  the  owner  of  land  where  a  brook  is  wliolly  or  partly 
situated  agrees  that  such  brook  or  part  thereof  shall  be  open  to  the 
public  after  the  expiration  of  three  years  as  hereinafter  provided,  the 
director  may,  upon  petition  of  thirty  or  more  inhabitants  of  a  town 
where  such  brook  is  wholly  or  partly  situated,  including  such  owner,  or 
upon  petition  of  the  aldermen  or  selectmen  and  such  owner,  cause  such 
brook  to  be  stocked  with  food  fish;  and  shall  then  make  reasonable  7 
regulations,  to  be  in  force  for  not  more  than  three  years,  relative  to  8 
fishing  in  such  brook,  may  fix  penalties  of  not  more  than  twenty  dol-  9 
lars  for  each  violation  thereof  and  shall  cause  such  regulations  to  be  10 
enforced.  11 


Discharge  of 
waste  material 
into  certain 
streams  pro- 
liibited. 
1890,  129. 
R.  L.  91,  §  8. 
1901),  350. 
1910,  460. 
1919,  350,  §  40. 
189  Mass.  247. 
211  Mass.  10, 


Section  16.  If  the  commissioner  of  conservation  determines  that  the 
fisheries  of  any  brook  or  stream  may  be  of  sufficient  value  to  warrant  the 
prohibition  or  regulation  of  the  discharge  or  escape  of  sawdust,  shav- 
ings, garbage,  ashes,  acids,  sewage,  dyestuffs,  and  other  waste  material 
from  any  particular  sawmill,  mamifactm-ing  or  mechanical  plant,  or  dwell- 
ing house,  stable  or  other  building,  which  may,  directly  or  indirectly, 
materially  injm-e  such  fisheries,  he  may  by  a  written  order  to  the  owner  or 
tenant  thereof  prohibit  or  regulate  the  discharge  or  escape  therefrom  of 
sawdust,  Kha\-ings,  garbage,  ashes,  acids,  sewage,  dyestulTs,  and  other 
waste  material  into  such  brook  or  stream.  Such  order  may  be  revoked 
or  modified  by  him  at  any  time.  Before  any  such  order  is  made  the  <li- 
rector  shall,  after  rea.sonable  notice  to  all  parties  hi  interest,  give  a  public 
hearing  in  the  county  where  the  sawmill,  manufacturing  or  mechanical 
plant,  dwelling  house,  stable  or  other  building  to  be  affected  by  the  order 
is  located,  at  wliich  hearing  any  citizen  shall  be  heard.  Upon  petition 
of  any  party  aggrieved  by  such  order,  filed  within  six  months  after  its 
date,  the  superior  court  may,  in  equity,  after  such  notice  as  it  deems 
sufficient,  hear  all  interested  parties  and  annul,  alter  or  affirm  the  order. 
If  such  petition  is  filed  by  the  party  aggriesed  within  ten  days  after  the 
date  of  said  order,  it  shall  not  take  effect  until  altered  or  affirmed  as  afore- 
said. Whoever,  having  so  been  notified,  discharges  sawdust,  shavings, 
garbage,  ashes,  acids,  sewage,  dyestuffs,  or  other  waste  material,  or  suf- 
fers or  permits  it  to  be  discharged  or  to  escape  from  said  plant  under 
liis  control  into  a  brook  or  stream  in  violation  of  the  order  of  the  di- 
rector, or  of  said  court,  it  an  appeal  is  taken,  shall,  for  a  first  offence,  be 
punished  by  a  fine  of  not  more  than  twenty-five  dollars  and  for  a  subse- 
quent offence  by  a  fine  of  fifty  dollars. 


(3 
7 
8 
9 
10 
11 
12 
1,3 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 


Director  may 
examine  dams, 
make  and 
serve  orders. 
Courts  may 
enforce  orders. 
1735-6,  21, 
§§  1,2. 
1741-2,  10, 
§§  1,2,5. 
1743-4,  26. 
1745-6,  20, 
K  1,2,  5. 


Section  17.    The  commissioner  of  conservation  may  examine  all  dams  1 

upon  rivers  where  the  law  requires  fish  ways  to  be  maintained,  or  where  2 

in  his  judgment  fish  ways  are  needed,  and  he  shall  determine  whether  3 

the  fish  ways,  if  any,  are  suitable  and  sufficient  for  the  passage  of  the  fish  4 

in  such  rivers,  or  whether  a  fish  way  is  needed  for  the  passage  of  fish  over  5 

any  dam;  and  shall  prescribe  by  written  order  what  changes  or  re-  6 

pairs,  if  any,  shall  be  made  therein,  and  where,  how  and  when  a  new  fish  7 


Chap.  I'M).]  fisheries.  1317 

S  way  must  be  built,  and  at  what  times  the  same  shall  be  kept  open,  and  j|ii~ivi*§  4"" 
9  shall  serve  a  copy  of  such  oriler  upon  the  owners  of  the  dams.    A  cer-  Jf''|'P^' 

10  tificate  of  the  commissioner  that  service  has  been  so  made  shall  be  suf-  isef,  344,  §  1. 

11  ficient  proof  thereof.     The  supreme  judicial  or  superior  coiu-t  shall,  on  p.'s.'qi, 

12  petition  of  the  director,  have  jurisdiction  in  equity  or  otherwise  to  en-  iggg,  los. 

13  force  any  such  order  and  to  restrain  any  violation  thereof.  1*5 9_i®J' 

1904,  365.  1919,  350,  §§  40,  43.  104  Mass.  446. 

1  '   Section  IS.     Any  owner  of  such  a  dam  who  refuses  or  neglects  to  Penalty  for 

2  keep  open  or  maintain  a  fish  way  at  the  times  prescribed  by  the  director  fi°h  way'open. 

3  shall  forfeit  fifty  dollars  for  each  day  of  such  refusal  or  neglect.  Ifht  ^^' 

1741-2,  16,  §§  1,  3.  1867,344,  §2.  1919,  350.  §  43. 

1745-6,20,14.  P.  S.  91,  §6.  5  Pick.  199. 

1811,  175,  §  4.  R.  L.  91,  §  11.  10  Pick.  383. 
1866,  238,  §  15. 

1  Section  19.     If  the  director  deems  that  a  passage  for  edible  fish  should  P^j[f|*^J^"^^y^ 

2  be  provided  or  if  he  finds  that  there  is  no  fish  way  or  an  insufficient  fish  ff^^^  21  ?  2 

3  way  in  or  around  a  dam  where  a  fish  way  is  required  by  law  to  be  main-  1741-2!  in!  §  4. 

4  tained,  he  may  enter  with  %\orkmen  and  materials  upon  the  premises  of  isu,  iVs,  §  4. 

5  the  person  required  to  maintain  a  fish  way  there  and  may,  at  the  expense  §§  7's.  12. 

6  of  the  commonwealth,  if  in  his  opinion  the  per,son  required  by  law  to  \l%[  |^'  ^  ^• 

7  construct  or  maintain  such  fish  way  is  unable  to  afford  such  expense,  ^9(^' |4:j^  ^■ 

8  improve  an  existing  fish  way,  or  cause  one  to  be  constructed  if  none  J'gia' I55  ^s'js 

9  exists,  and  may,  if  necessary,  take  the  land  of  any  other  person  who  is 

10  not  obliged  by  law  to  maintain  said  fish  way;   and  if  a  fish  way  has 

11  been  constructed  in  accordance  with  this  section,  he  shall  not  require 

12  the  owner  of  the  dam  to  alter  such  fish  way  within  five  years  after  its 

13  completion. 

1  Section  20.     All  damages  caused  by  taking  land  under  the  preceding  Compensation 

2  section  shall,  upon  the  application  of  either  party,  be  recovered  from  taken" 

3  the  commonwealth  under  chapter  seventy-nine.    The  amount  so  recov-  jfy,'!.^*' 

4  ered  shall  be  a  charge  against  the  person  required  by  law  to  construct  p**s.'9^i^i8.*' 

5  and  maintain  such  fish  way  and  shall  be  recovered  in  contract  in  the  ^-  ^-  ^i'  5 1^. 

6  name  of  the  commonwealth,  with  costs  and  with  interest  at  the  rate  of 

7  twelve  per  cent  per  annum. 

1  Section  21.     The  commissioner  of  conservation  may  screen  such  screening 

2  ponds  and  rivers  of  the  commonwealth  not  used  as  sources  of  water  supply  mere."" 

3  by  towns  as  he  deems  necessary  for  the  protection  of  fish  therein.    This  ^®"  ' 

4  section  shall  not  affect  any  right  existing  on  April  thirtieth,  nineteen 

5  hundred  and  twenty,  to  use  such  waters  for  mercantile  or  manufacturing 

6  purposes. 


1       Section  22.     The  director  ma^•,  in  the  performance  of  his  duties,  enter  Director  may 

^  1  J 1  1  ^  •  ^  enter  on 

-'  upon  and  pass  through  or  over  prnate  property.  is69, 384,  §  a.  und,  etc. 

P.  S.  91,  5  9.  R.  L.  91,  §  14  1919.  350,  §  43. 

fishing  license. 

1  Section  23.     No  person  shall,  except  as  provided  in  section  three  of  gshTn  staked 

2  chapter  one  hundred  and  thirty-one,  fish  in  any  of  the  inland  waters  of  jg^i^l'lgg,  5 1. 

3  the  commonwealth  stocked  by  the  director  or  his  predecessors  since  Jan-  p^^^,j 

4  uary  first,  nineteen  hundred  and  ten,  unless  he  has  obtained  a  certificate  chap.  isi.  §  14. 

5  of  registration  as  required  by  said  section. 


1318 


FISHERIES. 


[Chap.  130. 


Certain  ponds 
public. 

B.  L.  16. 

C.  L.  90.  §  2. 
1SI59,  384,  §  8. 
P.  S.  91.  §  11. 
R.  L.  91,  §  15. 


FISHERIES   IN   GREAT   PONDS. 

Section  24.  The  fishery  of  a  pond,  the  area  of  which  is  more  than 
twenty  acres,  shall  be  public,  except  as  hereinafter  provided;  and  all 
persons  shall,  for  the  purpose  of  fishing,  be  allowed  reasonable  means 
of  access  thereto. 

7  .\llen,  158.  170  Mass.  509.  2  Op.  A.  G.  239.  Op.  A.  G.  (1920)  233. 


Director  may 
control  certain 
ponds. 

18C,9,  384,  §  9. 
1876,  62,  §  1. 
P.  S.  91. 
5§  12,  17. 
1886,  248,  §  2. 
R.  L.  91,  5  ii;. 
1919,  350,  §  43. 
108  Mass.  441. 
110  Mass.  175. 
119  Mass.  300. 
146  Mass.  5. 


Section  25.     The  director  may  occupy,   manage  and  control   not  1 

more  than  six  great  ponds,  except  such  as  have  revested  in  the  common-  2 

wealth  for  breach  of  the  terms  and  conditions  of  any  lease  thereof,  for  '■] 

the  purpose  of  cultivating  useful  fish  and  of  distributing  them  \\ithin  the  4 

commonwealth;  and  may  occupy  not  more  than  one  tenth  part  thereof  'i 

with  enclosures  and  appliances  for  such  cultivation;   but  this  privilege  6 

shall  not  affect  any  public  rights  to  such  ponds,  other  than  the  right  of  7 

fishing,  and  the  appliances  and  enclosures  shall  be  so  placed  as  not  to  S 

debar  ingress  to  or  egress  from  such  ponds  at  proper  places.  9 


Notices  of 
such  occupa- 
tion. 

1876,  62,  §  2. 
P.  S.  91,  §  18. 
R.  L.  91,  J  17. 

1918,  257, 
§  315. 

1919,  5;  350, 
5  43. 

1920,  2. 


Section  26.     If  the  director  determines  so  to  occupy  and  improve  any  1 

such  pond,  he  shall  post  a  notice  of  such  purpose  in  a  public  place  in  the  2 

towns  where  said  pond  is  situated  and  file  a  like  notice  in  the  office  of  the  3 

clerk  of  each  of  said  towns  and  in  the  office  of  the  state  secretary.    The  4 

affidavit  of  an  officer  qualified  to  serve  civil  process  that  such  notice  has  5 

been  posted  shall  be  deemed  full  proof  thereof.  6 


Penalty. 
1876,  62,  I  3. 
P.S.  91.§  19. 
R.  L.  91,  §  IS. 


Section  27.  After  such  notice  has  been  so  filed  and  posted,  any 
violation  of  any  of  the  rights  of  said  director  under  section  twenty-five 
shall  for  a  first  offence  be  punished  by  a  fine  of  not  less  than  one  nor 
more  than  twenty  dollars  and  for  each  subsequent  offence  by  a  fine  of 
not  less  than  five  nor  more  than  fifty  dollars. 


Stocking  pond 
with  food 
fish. 

1897,  208. 
R.  L.  91,  §  19. 
1903.  274. 
1907,  308. 
1911,285, 
"":  1,2. 


223,  552. 


Section  28.     The  director,  on  petition  of  the  aldermen  of  a  city  or  1 

the  selectmen  of  a  town  where  a  great  pond  or  a  part  thereof  is  situated,  2 

shall  cause  the  pond  to  be  stocked  with  such  food  fish  as  he  judges  best  3 

suited  to  the  waters  thereof;  provided,  that  a  public  hearing  upon  the  4 

matter  has  previously  been  given  within  such  city  or  town  by  the  mayor  5 

2  Op.  a!°g.^  *^'  and  aldermen,  or  by  the  selectmen,  notice  of  which,  at  least  ten  days  6 

before  the  day  of  the  hearing,  has  been  posted  in  three  or  more  public  7 

places  and  published  in  a  newspaper  in  such  city  or  town  where  the  pond  S 

is  situated.    If  a  town  at  a  meeting  has  instructed  the  selectmen  to  file  9 

such  petition,  such  hearing  need  not  be  given.    When  a  great  pond  is  not  10 

situated  wholly  within  a  city  or  town,  the  director  shall  not  proceed  under  1 1 

this  section  with  respect  to  that  pond,  unless  a  majority  of  the  cities  and  12 

towns  bordermg  upon  that  pond  have  filed  petitions  as  aforesaid.    The  13 

director  sliall  thereupon  prescribe  for  a  period  not  exceeding  three  years,  14 

and  enforce  such  reasonable  regulations  relative  to  fishing  in  the  pond  1.5 

and  its  tributaries,  with  such  penalties  not  exceeding  twenty  dollars  for  1(1 

each  offence,  as  he  deems  for  the  public  interest;  but  this  section  shall  17 

not  apply  to  ponds  used  as  sources  of  public  water  supply.    The  director  IS 

may  restock  such  ponds  and  may  extend  such  reasonable  regulations  19 

for  periods  not  exceeding  three  years  each  whenever  he  receives  a  petition  20 

therefor  as  herein  provided.  21 


Chap.  130.]  fisheries.  1319 

1  Section  29.    The  director  may  occupy  and  control  ]Mill  pond,  in  ^{^'''nE'"; 

2  Yarmouth,  for  tlie  purpose  of  culti\'atin,<;  food  fish  for  distribution  within  isso.  io7. 

3  the  commonwealth.     Whoever,  without  his  written  consent,  fishes  in    •■'■-• 

4  said  pond  in  any  other  manner  than  by  angling,  shall  for  a  first  offence 

5  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  two  hundred 

6  dollars,  and  for  a  subsequent  ofi'ence  by  a  fine  of  not  less  than  one  hundred 

7  nor  more  tlian  two  hundred  dollars. 

1  Section  30.    The  countv   commissioners  shall,   in  July,   upon  the  county 

,  '  „  I    •      •         i      I        •  *j.  i     1    •  commissioners 

2  request  and  at  the  expense  t)t  any  persons  clannmg  to  be  niterested  m  a  to  measure 

3  great  pond,  cause  a  measurement  thereof  to  be  made  which  shall  be  fseg^ss",  s  n. 

4  recorded  in  the  office  of  the  city  or  town  clerk  of  each  city  or  town  within  ^  l.  m',\^2i. 

5  the  limits  of  which  any  part  of  such  pond  is  situated;   and  no  arm  or  ^^j^*,;^^^' 

6  branch  shall  be  included  as  a  part  of  a  pond  unless  it  is  at  least  fifty  feet  i9i9. 5- 

7  in  width  and  one  foot  in  depth.  1920, 2. 

1  Section  31.     The  selectmen  of  a  town  may  measure  ponds  which  are  .Selectmen  may 

2  wholly  within  their  town,  in  the  manner  pro\'ided  in  the  preceding  sec-  certain  pon.is. 

3  tion,  and  such  measurement  shall  be  recorded  in  the  office  of  the  town  p.s/91,  §22. 

4  clerk.  R-  l-  9i.  §  22. 

1  Section  32.    The  riparian  proprietors  of  any  pond,  other  than  a  Exclusive 

2  great  pond,  and  the  proprietors  of  any  pond  or  parts  of  a  pond  created  npaHan" 

3  by  artificial  flowing  shall  have  exclusive  control  of  the  fisheries  therein.      i8H9,'^3S4, 

p.  S.  91,  §10.  R.  L.  91,§23.  119  Mass.  300.  §§".12. 

1  Section  33.    A  pond  other  than  a  great  pond,  bounded  in  part  by  land  ^("^^"jlf^^i"" 

2  belonging  to  the  commonwealth  or  to  a  countv,  city  or  town  shall  be-  S"y^,  . ,,, 

,,.  p,  ,  '.  ir»i*         loo9.  384,  §  13, 

3  come  the  exclusive  property  of  the  other  proprietors  as  to  the  nshenes  p.  s.  91,  §  23 

4  therein  only  upon  payment  to  the  state  treasurer,  or  county,  city  or  i9i8!25'7. 

5  town  treasurer  of  a  just  compensation  for  their  respective  rights  therein,  loiV/s, 

6  to  be  determined  by  three  arbitrators,  of  whom  one  shall  be  appointed  by  ^^^°'  - 

7  the  director,  one  shall  be  an  individual  riparian  proprietor  of  said  pond, 

8  or  an  officer  of  a  corporation  which  is  such  proprietor,  and  one  shall  be 

9  the  chairman  of  the  comity  commissioners  of  tlie  county  where  the  pond, 

10  or  the  largest  part  of  the  area  thereof,  is  situated,  if  the  riparian  pro- 

11  prietors  include  the  commonwealth,  or  one  or  more  counties,  or  two  or 

12  more  cities  or  towns,  or  one  or  more  cities  and  one  or  more  towns,  or  the 

13  mayor  or  chairman  of  the  board  of  selectmen,  respectively,  if  one  city, 

14  or  one  town,  is  such  proprietor. 

1  Section  34.     Whoever,  without  the  written  consent  of  the  proprietor  Penalty  for 

2  or  lessee  of  a  natural  pond,  not  a  great  pond,  or  of  an  artificial  pond  of  certain  ponds. 

3  any  size,  where  fish  are  lawfully  cultivated  or  maintained,  takes  any  §§'i,'2.  ' 

4  fish  therefrom,  shall  be  punished  by  a  fine  of  not  more  than  twenty-five  i?'>?'9i'/i  24. 

5  dollars.  r.  L.91,  §25. 

1  Section  35.     Except  as  provided  in  chapter  two  hundred  and  thirty-  use  of  nets 

2  two  of  the  acts  of  nineteen  hundred  and  four  and  in  sections  sixty-nine  regulated. 

3  and  seventy-three,  whoever  draws,  sets,  stretches  or  uses  a  drag  net,  §5  i.'s.   ' 

4  set  net,  purse  net,  seine  or  trawl,  or  whoever  sets  or  uses  more  than  ten  J903;  294^ '''' 

5  hooks  for  fishing,  in  any  pond,  or  aids  in  so  doing,  shall  be  punished  by  a  J^^f/  |°y^  ^  ,. 

6  fine  of  not  less  than  twenty  nor  more  than  fifty  dollars.    This  section  191S.257,  §318. 


1320 


FISHERIES. 


[Chap.  130. 


1919,5. 
1920,  2. 

Additional 
penalty.  §  76. 


shall  not  affect  any  rights  conferred  by  section  thirty -two  or  the  corporate  7 
rights  of  any  fishing  company  and  shall  not  apply  to  a  person  taking  8 
fish  other  than  shiners  by  means  of  the  apparatus  described  in  section  9 
seventj'-five  if  such  other  fish  are  immediately  returned  alive  to  the  10 


water. 


11 


Enclosure  of 

unnavigable 

streams. 

1869,  384,  §  16. 

P.  S.  91.  §  25. 

R.L.  91,  §27. 


CONTROL   OF   FISHERIES   BY   RIP.\RIAN   PROPRIETORS. 

Section  36.     A  riparian  proprietor  of  an  unnavigable  stream  may,  1 

within  the  limits  of  his  own  premises,  enclose  the  waters  thereof  for  the  2 

cultivation  of  useful  fish  if  he  furnishes  a  suitable  passage  for  migratory  3 

fish  naturally  frequenting  such  waters.  4 


Ownership 
of  fish 
artificially 
propagated. 
1869,  384, 
§§  18,  20. 
P.  S.  91,  §  20. 
R.  L.  91,  §  28. 


Section  37.  Fish  artificially  propagated  or  maintained  shall  be  the 
property  of  the  person  propagating  or  maintaining  them.  A  person 
legally  engaged  in  their  cultm-e  and  maintenance  may  take  them  in  his 
ovm  waters  at  pleasure,  and  may  haxe  them  in  his  possession  for  pur- 
poses properly  connected  with  said  culture  and  maintenance,  and  may 
at  all  times  sell  them  for  these  piu-poses,  but  shall  not  sell  them  for  food 
at  seasons  when  their  capture  is  prohibited. 


Penalty  for 
fishing  where 
fish  are  arti- 
ficially propa- 
gated. 

1869,  384,  §  19. 
P.  S.  91,  §  27. 


Section  38.     Whoever,  without  the  permission  of  the  proprietors,  1 

fishes  in  that  portion  of  a  pond,  stream  or  other  water  where  fish  are  law-  2 

fully  cultivated  or  maintained  shall  be  subject  to  the  penalties  provided  3 

in  section  twentv-seven.  R.  l.  9i,  §  29.  4 


108  Mass,  441. 
110  Mass.  175. 


119  Mass.  300. 

130  Mass.  469. 

Additional  penalty,  §  76. 


142  Mass.  71. 
162  Mass.  219. 


Definition 
of  navigable 
streams. 
1869,  384,  I  14. 
P.  S.  91,  §  28. 
U.  L.  91,  §  30. 


Section  39.     For  the  piu-poses  of  this  chapter,  no  tidal  stream  shall  1 

be  considered  navigable  above  the  point  where,  on  the  average  tlu-oughout  2 

the  year,  it  has  a  channel  less  than  forty  feet  wide  and  four  feet  deep  3 

during  the  three  hours  nearest  the  hoiu-  of  high  tide.  4 


Governor 
may  define 
tidal  bounds 
and  mouths 
of  streams. 
1869,  384.  8  17. 
P.  S.  91,  §  29. 


Section  40.     The   governor,   with  the   advice  and  consent   of   the  1 

council,  may,  for  the  purposes  of  this  chapter,  arbitrarily  fix  and  define  2 

the  tidal  bounds  and  mouths  of  streams  upon  recommendation  of  the  3 

director.  R.  l.  9i,  §  3i.  4 


Governor 
may  limit 
fishing  in 
certain  waters. 
Penalty. 
1869,  3"84,  §  15. 
P.  S.  91,  §  30. 
R.  L.  91,  §  32. 

Additional 
penalty,  §  76. 


Section  41.  The  governor  may,  in  like  manner,  limit  or  prohibit, 
for  not  more  than  five  years  at  any  one  time,  fishing  in  the  navigable 
tidal  waters  and  in  the  unnavigable  waters  of  specified  streams,  except 
in  such  portions  as  may  be  enclosed  as  provided  in  section  thirty-six; 
and  whoever  fishes  in  streams  where  the  right  of  fishing  is  thus  limited 
or  prohibited  shall  for  the  first  offence  be  punished  by  a  fine  of  ten  dol- 
lars, and  for  a  subsequent  offence  by  a  fine  of  fifty  dollars. 


Owners  of 

certain  streanis 
to  control 
fisheries. 
1871,  281,  §  2. 
P.  S.  91,  §  31. 
1890,  231. 
R.  L.  91,  §33. 
119  Mass.  526. 

Additional 
penalty.  §  76. 


Section  42.     The  riparian  proprietor  on  an  unnavigable  tidal  stream,  1 

enclosed  or  unenclosed,  in  which  fish  are  lawfully  cultivated  or  main-  2 

tained  shall  have  the  control  of  the  fishery  thereof  within  his  owii  prem-  3 

ises  and  opposite  thereto  to  the  middle  of  the  stream,  and  a  riparian  4 

proprietor  at  the  mouth  of  such  stream  shall  also  have  control  of  the  5 

fishery  thereof  beyond  and  around  the  mouth  of  the  stream  so  far  as  6 

the  tide  ebbs,  if  it  does  not  ebb  more  than  eighty  rods;    and  wlioever  7 


Chap.  130.]  fisheries.  "  1321 

S  fishes  within  these  hmits  without  permission  of  the  owner  shall  be  sub- 
9  ject  to  the  penalties  provided  in  section  twenty-seven. 

1  Section  43.     Whoever  uses  a  sweep  seine  or  combination  of  sweep  Fishing  with 

2  seines  in  such  a  manner  as  at  an\-  moment  to  close  or  seriously  obstruct  isegfs'lirpa. 

3  more  than  two  thirds  of  the  wi<lth  of  a  stream  at  the  place  where  used,  K^'gi^'jl^ 

4  or  delays  or  stops  in  paying  out  or  hauling  a  sweep  seine,  or  hauls  a  sweep  ^^\  gi^j^sl: 

5  seine  within  one  half  mile  of  a  point  where  such  seine  has  been  hauled  Additional 

6  within  an  hoiu-,  shall  for  a  first  offence  be  piu;ished  by  a  fine  of  twenty-  penalty,  §  76. 

7  hve  dollars  and  for  a  subsequent  offence  by  a  fine  of  fifty  dollars;  but  this 

8  section  shall  not  apply  to  seines  lawfully  used  in  the  smelt  fisheries,  or 

9  to  the  fisheries  for  shad  or  alewives  in  the  Taunton  Great  river,  or  to  the 
10  fisheries  in  Noj'th  river  in  Plymouth  county. 

HERRING,    .\LEWIVES   AND    SHAD. 

1  Section  44.     A  town  may  open  ditches,  sluiceways  or  canals  into  Towns  nmy 

2  any  pond  within  its  limits  for  the  introduction  and  propagation  of  herring  etc^^to'creats 

3  or  alewives,  and  for  the  creation  of  fisheries  for  the  same;  and  may  take  fiSenfa. 

4  by  eminent  domain  land  within  its  limits  for  such  ditches,  sluicewaj^s  p*s''9i^''|  H; 

5  or  canals.  r.  l.  9i,§34.  lOTMass.  iis, 

1  Section  45.     A  town  creating  such  fishery  shall  own  it,  may  make  Towns  shaii 

2  regulations  concerning  it  and  may  lease  it  for  not  more  than  five  years,  fish"rie3. 

3  on  terms  agreed  upon.    A  town  may  lease  for  a  like  period,  and  on  like  p^s!'9i*^§  It' 

4  terms,  any  fishery  owiied  by  it  or  any  public  fishery  regulated  and  con-  ^-  ^-  ^^'  ^  ^^■ 

5  trolled  by  it. 

1  Section  46.     Whoever  takes,  kills  or  hauls  on  shore  any  herring  or  Penalty  for 

2  alewives  in  a  fishery  created  by  a  town,  without  its  permission  or  that  of  fishenes"wkh- 

3  its  lessees,  or  in  a  fishery  created  by  a  corporation,  without  the  permission  isG(ri87?'"°° 

4  of  such  corporation,  shall  be  piuiished  by  a  fine  of  not  less  than  five  nor  p^l'gi^ 

5  more  than  fifty  dollars.     Prosecutions  under  this  section  shall  be  com-  ^  ^'gi'i  sg 

6  menced  within  thirty  days  after  the  commission  of  the  offence. 

1  Section  47.     The  three  preceding  sections  shall  not  impair  the  rights  Rishts  under 

contracts   etc 

2  of  any  person  under  any  law  passed  before  AprU  twenty-fifth,  eighteen  not  affected.  ' 

3  hundred  and  sixty-six,  or  under  any  contract  then  existing,  or  authorize  p.  s!'9i.  §  67.' 

4  a  town  to  enter  upon  or  build  canals  or  sluiceways  into  a  pond  which  is        '  ®^ 

5  pri^•ate  property. 

1  Section  48.     Whoever  takes  shad  or  alewives,  except  in  the  Con-  P™a'ty  for 

2  necticut,  Taunton  Great,  Nemasket  and  Merrimack  rivers  and  their  tribu-  of  si.ad  or 

3  taries  in  any  other  manner  than  by  angling  on  Sunday,  Tuesday  or  Thurs-  i-sV-s^si,  §  i. 

4  day  and  whoever  between  June  fifteenth  and  March  first  takes  shad,  5§''i'~f6.^n. 

5  except  in  the  Connecticut  and  Merrimack  rivers,  or  alewives,  shall  forfeit  |§f4^^||' 

0  for  each  shad  five  dollars,  and  for  each  alewife  twenty-five  cents.  i^^i'  ^s^- 

p.  S.  91,  §  55.  1S95,  88.  §  2.  R.  L.  91,  §  42.  Additional  penalty,  §  76. 

TROUT. 

1  Section  49.    No  person  shall  at  any  time  buy  or  sell  or  offer  for  sale  Provisions  as 

2  a  trout  taken  or  held  in  possession  contrary  to  this  cliapter,  or  take  or  or  sale  of 

3  have  in  possession  trout  between  August  first  in  any  year  and  April  i862,  loi 


1322 


FISHERIES. 


[Chap.  130. 


1866,  24(1, 
H  1.3. 
1869,  384, 
1874.  181). 
1876,  221. 
1880,  86. 


fifteenth  of  the  year  following;  or  ha^•e  in  possession  at  any  time  a  trout  4 

less  than  six  inches  m  length,  unless  taken  by  a  person  la\^'fully  fishing,  5 

and  immediately  returned  alive  to  the  water  whence  it  was  taken.  6 

i  51,  53. 


P.  S.  91.  § 
1S84,  171. 
1888,  276. 

1890,  193. 

1891,  138. 

1892,  252. 
1895,  277,  I 


1901,  121;  142. 
E.  L.  91,  §§  62-64. 

1902,  137;  544,  §  11. 

1905,  190. 

1906,  263;  314,  §§  1,  2. 
1909,  377,  §§  1,  4. 


1910,  469. 

1916,  25. 

1918,  30,  |§  1.  6, 

160  Mass.  157. 

164  Mass.  477. 

Op.  A.  G.  (1920)  107 


Provisions  as 
<o  fishing  for 
trout. 
R.  S.  55, 
§§  2.  3. 


Section  50.  It  shall  be  unla'u-ful  to  take  trout  other  than  by  angling, 
or  at  any  other  time  than  between  one  hour  before  sunrise  and  two 
hours  after  sunset.  is57, 30.  i859,  loe.  g.  s.  83, 5  2. 


1869,  384,  §  28. 
1874,  186. 
P.  S.  91,  §§  49.51. 
R.  L.  91,  §§  61,  62. 


1906,  314,  §  1. 

1909,  377,  |§  1,  4. 

1910,  469. 
1917,  188,  I  1. 


1918,30,  §§2,6; 
257,  §319. 

1919.  5. 

1920,  2. 


Limit  of  catch. 

1917,  188,  §  1. 

1918,  30, 
51  3,  6. 


Section  51.  No  person  shall  in  any  one  day  take  a  total  of  more 
than  twenty-five  trout  of  any  or  all  species,  and  when  two  or  more  per- 
sons are  angling  from  the  same  boat  or  raft  they  shall  take  for  a  like  period 
not  more  in  the  aggregate  than  thirty  trout. 


Artificially 
propagated 
trout. 
License. 
1895.  277,  §  1. 

1901,  121. 
R.  L.  91, 
§§  64,  66. 

1902,  544,  §  11. 


Section  52.     Upon  written  application  to  the  director,  permission  1 

may  be  granted  to  any  person  to  buy  and  sell  or  have  in  possession,  at  2 

any  season  of  the  year,  trout  artificially  propagated  and  maintained,  3 

imder  such  rules  and  regulations,  approved  by  the  governor  and  council,  i 

as  may  be  made  by  the  director.  i905, 190.  5 

1907,  296.       1909,  377,  §§  2,  4.      191.8.  30,  §§  4,  6.       1919,  350,  §  43. 


Penalty. 
R.  S.  55, 
5§  2,  4. 
G.  S.  83, 
§§2,3. 
18.57,  30. 
1866,249, 
1869,  384, 
1874,  186. 
1876,  221, 
§11,2. 


§  1. 
§  28. 


Section  53.  Violation  of  any  provision  of  the  four  preceding  sections, 
or  any  rule  or  regulation  made  under  the  preceding  section,  shall  be  pun- 
ished by  a  fine  of  not  less  than  ten  nor  more  than  twenty-five  dollars, 
and  the  director  may,  in  case  of  a  ^•iolation  of  any  rule  or  regulation 
made  by  him,  suspend  or  revoke  any  license  or  permit  granted  under 
authority  of  the  preceding  section.  p.  s.  49,  §§  so,  51, 53. 

4. 


1890,  193. 

1891,  138. 
1895,  277,  §  2. 
1901,  121;  142. 


R.  L.  91.  §§  62-64. 
1902,  137;  544,  §  11. 

1905,  190. 

1906,  314,  §§  1.  2. 


1909,  377,  §§  3, 

1917,  188,  §  2. 

1918,  30.  §§  5,  6. 

1919,  350,  §  43. 


Establishing 

rearing 

stations 

for  trout  in 

certain 

counties. 

1917,  228. 


Section  54.  The  director  may  establish  and  maintain  one  or  more 
rearing  stations,  situated  at  such  places,  within  the  counties  of  Hamp- 
shire, Franklin  and  Berkshire  as  he  may  select,  for  the  piu-pose  of  rearing 
to  fingerling  size  the  surplus  trout  fry  produced  by  fish  hatcheries. 

1919,  350,  §  43. 


Trout  and 
spawn,  con- 
ditions of 
furnishing. 
1S93,  59. 
R.  L.  91,  §  65. 


Section  55.     No  person  shall  be  pro\ided  by  the  commonwealth  with  1 

trout  or  trout  spawn  to  stock  waters  owned  or  leased  by  him  or  under  liis  2 

control  unless  he  first  agrees  in  wTiting  with  the  director  that  waters  so  3 

stocked  shall  be  free  for  the  public  to  lawfidly  fish  therein.  4 


SALMON. 

to°m^'freg"        Section  56.    The  commissioner  of  conservation  may  make,  with  the 
lations  for         approval  of  the  governor  and  council,  such  rules  and  regulations  as  he  may 

taking  salmon.        t't'  , .         "„  ,  ,  .  „  .  ,.        i  •      ^i  •  j 

1869, 384  §  27.  deem  expedient  for  the  taking  of  any  species  oi  salmon  in  the  rivers  and 
R.  L.  9i,  §  58.    coastal  waters  and  great  ponds  of  the  commonwealth  and  in  any  pri\'ate 


Chap.  130.]  fisheries.  1323 

5  waters  which  have  been  stocked  by  the  commonwealth  under  an  agree-  i909, 377, 

6  ment  with  the  owner.    The  commissioner  shall  conspicuously  post  such  isid,  469,  §  1. 

7  rules  and  regulations  on  the  shores  of  such  inland  ponds  or  waters  and  ||^i'*.'4*' 

8  shall  file  with  the  town  clerks  of  the  towns  which  border  on  such  ponds  §§^i%^,^®' 

9  or  waters  a  copy  thereof  for  public  inspection.    Whoever  violates  said 

10  rules  and  regulations  shall  be  punished  by  a  fine  of  not  less  than  twenty 

11  nor  more  than  fifty  dollars. 

1  Section  57.     The  director  shall,  dm-ing  April,  May  and  June,  for  the  Protection  of 

2  better  protection  of  salmon  fry  in  the  Merrimack  river,  cause  wire  screens  IsM^iisi*'' 

3  to  be  erected  and  maintained  at  the  entrance  of  the  canals  in  Lowell  and  ^gjg-  350,^^43. 

4  Lawrence  at  the  expense  of  the  companies  owning  and  operating  said 

5  canals. 

pickerel. 

1  Section  58.     No  person  shall  take  pickerel  between  March  first  and  ciose  reason 

2  May  first  in  any  year,  or,  diuing  said  period,  sell  or  ofi'er  or  expose  for  1912, 110. 

3  sale  or  have  in  possession  a  pickerel  taken  in  this  commonwealth.    Who- 

4  ever  violates  any  provision  of  this  section  shall  be  punished  by  a  fine 

5  of  not  more  than  ten  dollars.     The  possession  of  a  pickerel  during  said 

6  period  shall  be  prima  facie  evidence  of  such  unlawful  taking. 

1  Section  59.     Whoever  takes  from  the  waters  of  the  commonwealth  Taking,  etc., 

2  a  pickerel  less  than  ten  inches  in  length,  or  sells  or  offers  for  sale,  or  has  Pen'a'it'y'^ 

3  in  possession  any  such  pickerel,  shall  be  punished  by  a  fine  of  one  dollar  ^^f[  }^^-^  57 

4  for  each  pickerel  so  taken,  held  in  possession,  sold  or  offered  for  sale;  JgJ^'g"^' 

5  and  in  prosecutions  under  this  section  the  possession  of  pickerel  less  than 

6  ten  inches  in  length  shall  be  prima  facie  evidence  of  such  unlawful  taking. 

1  Section  60.     A  town  may  by  by-law  forbid  the  taking  of  pickerel  in  Takins,  etc., 

2  any  river,  stream  or  pond  therein  in  any  other  manner  than  by  angling,  may  be  regu- 

3  and  may  provide  a  suitable  penalty  for  its  violation.  "    '^ "' 

1822,  21.  G.  S.  83,  §  2.  R.  L.  91.  §  68. 

1824.  127.  P.  S.  91,  §  48.  1904,  3M. 

R.  S.  55,  §  2.  1888,  331.  1905,  417,  |  1. 


WHITE   PERCH. 

1  Section  61.     No  person  shall  take  from  waters  stocked  by  the  director  Restrictions  on 

2  or  his  predecessors  with  white  perch  any  white  perch  otherwise  than  by  white  perch. 

3  angling  or  less  than  seven  inches  long  or  ha\'e  the  same  in  possession  nor  igj's.  54'. 

4  shall  he  take  therefrom  a  total  of  more  than  ten  pounds  in  any  day,  i^i'''-"- 

5  except  that  if  the  last  fish  caught  increases  the  total  weight  of  the  fish 

6  caught  to  more  than  ten  pounds,  the  last  fish  so  taken  may  be  kept; 

7  provided,  that  when  two  or  more  persons  are  angling  from  the  same 

8  boat  or  raft  they  shall  not  take  more  in  the  aggregate  than  fifteen 

9  pounds,  except  that  if  the  last  fish  caught  increases  the  total  weight  of 

10  the  fish  caught  by  such  persons  to  more  than  fifteen  pounds,  the  last  fish 

11  so  taken  may  be  kept.    This  section  shall  not '  apply  to  waters  now  or 

12  hereafter  held  under  lease  by  the  commonwealth  or  by  the  commissioner 

13  of  twnservation.    Violation  of  any  provision  of  this  section  shall  be  pun- 

14  ished  by  a  fine  of  not  more  than  twenty-five  dollars  and  five  dollars  adtli- 

15  tional  for  every  fish  so  unlawfully  taken  or  had  in  possession. 


1324 


FISHERIES. 


[Chap.  130. 


Possession  of 
certain  pike 
perch  pro- 
hibited. 
Seizure  with- 
out warrant, 
and  sale. 
Penalty. 
1906,  179. 
1908,  488. 
1910,  575,  §  1. 

1912,  465,  I  1. 

1913,  250. 
1919,  350,  §  43. 


PIKE    PERCH. 

Section  62.  No  person  shall  have  in  possession  any  pike  perch  1 
caught  in  that  part  of  Lake  Champlain  or  its  tributaries  known  as  INIissis-  2 
quoi  bay,  lying  and  being  in  the  province  of  Quebec,  or  in  the  Richelieu  3 
ri\-er,  which  is  the  outlet  of  said  lake,  between  February  first  and  June  4 
first.  The  director,  wardens  and  deputies  may  search  for,  seize.,  and  con-  5 
fiscate,  without  a  warrant,  pike  perch  held  in  possession  in  violation  of  6 
tliis  section,  and  every  other  officer  mentioned  in  section  five  shall  with-  7 
out  a  warrant  search  for  and  seize  pike  perch  so  held  in  possession,  and  8 
report  the  seizure  to  the  director.  The  director  shall  authorize  the  sale  9 
of  such  fish;  and  the  proceeds  of  such  sale  shall  be  paid  to  the  common-  10 
wealth.  Whoever  violates  this  section  shall  be  punished  by  a  fine  of  11 
fifty  dollars,  and  ten  dollars  additional  for  each  pike  perch  so  unlaw-  12 
fully  held  in  possession.  13 


Seining  of 
pollock  and 
spike 
mackerel. 
Penalty. 
1915,  49. 


POLLOCK    AND    MACKEREL. 

Section  63.  No  person  shall  seine  in  the  harbors  and  rivers  of  the 
commonwealth  pollock  weighing  less  than  three  quarters  of  a  pound,  or 
spike  mackerel  weighing  less  than  one  quarter  of  a  pound.  Violation  of 
any  provision  of  this  section  shall  be  punished  by  a  fine  of  not  less  than 
twenty-five  nor  more  than  fifty  dollars  or  by  imprisonment  for  not  less 
than  one  nor  more  than  two  months,  or  both. 


Close  season 
for  black  bass. 
Limit  of 
length. 
1896,  229. 
R.  L.  91,  §  70. 
1912,  129, 
§§  1,4. 


BL.\CK    BASS. 

Section  64.  No  person  shall  take,  sell,  offer  for  sale,  or  have  in  pos- 
session a  black  bass  or  any  part  thereof  between  April  first  and  June 
twentieth  following,  both  dates  inclusive,  or  at  any  time  have  in  posses- 
sion a  black  bass  less  than  eight  inches  in  length  unless  such  bass  was 
taken  by  a  person  lawfully  fishing  and  is  immediately  returned  alive  to 
the  water  whence  it  was  taken. 


Granting,  etc., 
of  licenses  for 
propagation, 
1912,  129.  §  2. 
1919,  350.  I  43. 


Section  65.  Upon  written  application  to  the  director,  he  may  grant 
a  license  to  any  person  to  buy  and  sell  or  have  in  possession,  at  any 
season  of  the  j-ear,  black  bass  artificially  propagated  and  maintained, 
imder  rules  and  regulations  made  by  him  and  approved  by  the  go\'- 
ernor  and  c-ouucil.     A  license  may  be  revoked  by  him. 


Section  66.     ^\Tioever  violates  any  provision  of  the  two  preceding     1 


Penalty. 
1896,  229. 

1912!  129,    "■    sections  shall  be  punished  by  a  fine  of  not  more  than  ten  dollars  for     2 
§§  3, 4.  p.jj^j^  ggj^  jjj  respect  to  which  the  violation  occurs.  3 


SMELTS. 


Penalty  for 
selling,  etc., 
smelts 
between 
certain  dates. 
1874,  153, 
§§  1,2. 
P.  S.  91.  §  57. 
1887,  105,  §  2. 


Section  67.     Whoever,  between  March  fifteenth  and  June  first,  sells  1 

or  offers  or  exposes  for  sale  or  has  in  his  possession  a  smelt  taken  between  2 

said  dates  in  the  commonwealth,  shall  forfeit  one  dollar  for  every  such  3 

smelt;   and  the  possession  of  a  smelt  between  said  dates  shall  be  prima  4 

facie  evidence  of  ^•iolation  of  this  section.        is90, 3o.           r.  l.  9i,  §  7i.  5 


ClIAI'.    1.'50.]  FISHERIES.  1325 

1  Section  68.     The  director  may  permit  the  taking  of  smelt  in  great  Permits  to  take 

.„,  .,  ,*.     ■*  ,  11-  11        smelts  in  great 

2  ponds  or  the  commonwealth,  subject  to  rules  and  regulations  made  by  ponds. 

3  him  and  approved  by  the  governor  and  coimcil.    Violation  of  any  such  350]  §43. 

4  rule  or  regulation  shall  be  punished  by  a  fine  of  not  less  than  five  dollars. 

1  Section  69.     Except  as  provided  in  section  seventy-three  and  in  renaity  for 

2  chapter  tliree  hundred  and  six  of  the  acts  of  nineteen  hundred  and  eleven,  except  ^Tth'^ 

3  whoever  takes  a  smelt  in  any  other  manner  than  by  angling  shall  forfeit  i8,°s,  nl'M- 

4  one  dollar  for  each  smelt  so  taken;    and  in  all  prosecutions  inider  this  al^^i'^lf 

5  section  the  burden  of  proof  shall  be  upon  the  defendant  to  show  that  jp?'???- 

6  smelts  taken  by  him  were  legally  caught.       1874, 153, 5  2.        p.  s.  91,  §  ss. 

R.  L.  91,  §  72.  108  Mass.  452.  151  Mass.  GO.  153  Mass.  396. 

Additional  penalty.  §  76. 

1  Section  70.     Sections  sixty-seven  and  sixty-nine  shall  not  apply  to  Prohibition 

2  smelts  taken  in  a  seine  or  net  in  Bristol,  Barnstable,  Nantucket  or  Dukes  to  certain 

3  county  during  the  time  and  in  the  manner  in  which  fishing  is  allowed  for  isag,"?!! '"°' 

4  perch,  herring  or  alewives,  nor  to  smelts  lawfully  taken  under  chapter  H^f^  jjg;  j  o. 

5  tlu-ee  hundred  and  six  of  the  acts  of  nineteen  hundred  and  eleven.  ^g|j-  ^^^^  ^'■'■ 

R.  L.  91.  §73. 

1  Section  71.     Except  as  provided  in  chapter  three  hundred  and  six  rseofnet, 

2  of  the  acts  of  nineteen  hundred  and  eleven,  no  person  shall  set,  draw,  fo^citehing 

3  use  or  attempt  to  set,  draw  or  use  any  net,  seine,  trap  or  device  for  catch-  Boston'harbor. 

4  ing  smelts,  other  than  a  naturally  or  artificially  baited  hook,  in  the  fsis^'ioy'''''^' 

5  waters  of  Boston  harbor,  Hingham  harbor.  Weir  river,  Wevmouth  Fore  i823!4i.  §  i. 

„       .  Tir  .1       Ti       1  •  XT  '•  /^i         1  ■■  T,r  .       1884,  189,  §  1. 

6  river,    Vveymouth   Back  river,   JNeponset  rner,   Charles  river,   JNlystic  R. l. 9i,  §  74. 

7  river,  or  in  any  co^'C,  bay,  inlet  or  tributary  thereof;    but  this  section 

8  shall  not  prohibit  the  use  of  traps  for  catching  lobsters. 

1  Section  72.     Possession  of  any  net,  seine,  trap  or  device  for  catching  Possession  of 

2  fish,  other  than  a  naturally  or  artificially  baited  hook,  in  or  upon  said  "a'^r'i'e\'vide''nce!* 

3  harbors,  rivers  or  tributaries,  or  on  the  banks  of  the  same,  if  adapted  r*^l! gu'sVl 

4  to  and  apparently  intended  for  the  present  catching  of  smelts,  shall  be 

5  deemed  prima  facie  evidence  of  a  violation  of  the  provisions  of  the  pre- 

6  ceding  section,  and  the  possession  of  any  fresh  smelts,  not  apparently 

7  caught  by  the  use  of  a  hook,  in  or  upon  said  harbors,  ri\-ers  or  tributaries, 

8  or  on  the  banks  of  the  same,  after  sunset  or  under  other  suspicious  cir- 

9  cumstances,  shall  be, deemed  prima  facie  evidence  that  said  smelts  were 

10  caught  contrary  to  such  provisions  by  the  person  in  whose  possession 

11  they  are  found. 

1  Section  73.     Whoever  violates  any  provision  of  section  seventy-one  Penalties. 

2  or  receives  smelts  knowing  or  having  reasonable  cause  to  believe  that  the  r*^l!  9i?'§y : 

3  same  have  been  taken  contrary  to  any  pro^'ision  of  said  section  shall,  Additional 

4  for  a  first  oft'ence,  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  penalty,  §  76. 

5  than  two  hundred  dollars  or  by  imprisonment  for  not  less  than  six  nor 

6  more  than  twelve  months,  or  both,  and,  for  a  subsequent  offence,  by 

7  both  said  fine  and  imprisonment. 

1  Section  74.     The  director,   warden,   deputy,    any   member   of   the  Searches; 

2  state  police,  sheriff,  deputy  sheriiT,  police  officer  or  constable,  within  his  fibemng^of 

3  jurisdiction,  may  search  for  and  seize,  without  warrant,  any  smelts  which  5'^! 


property. 
'894.  1S9,  5  4. 


4  he  has  reason  to  suspect  were  taken  contrary  to  any  provision  of  section  \f'l-  ^-J^s, 

5  seventy-one,  and  the  net,  seine,  trap  or  other  device  and  the  vessel,  boat,  i905,'407. 


1326 


FISHERIES. 


[Chap.  1:50. 


1912,  4(i5,  ! 

1913,  250. 
1919,  350. 
§§  -13,  102. 


craft  or  other  apparatus  used  in  connection  with  such  receiving,  or  other  G 
violation  of  said  section,  and  the  cask,  barrel  or  other  vessel  or  wrapper  7 
containing  said  smelts.  Said  officer  may  libel  said  property  according  8 
to  law,  or,  at  his  discretion,  sell  the  same  or  any  part  thereof  at  private  9 
sale  or  by  public  auction,  and  libel  the  net  proceeds  of  such  sale  according  10 
to  law,  in  the  same  manner  and  with  the  same  eifect  as  if  such  proceeds  11 
were  tlie  property  itself.  12 


shiners  may 

be  taken  for 

bait. 

190G,  239,  §  1. 


MISCELL.'USrEOUS   PROVISIONS   RELATIVE  TO   FISH. 

Section  75.  Shiners  may  be  taken  for  bait  in  any  of  the  waters  of 
the  commonwealth  by  means  of  a  circular  or  hoop  net  not  exceeding  six 
feet  in  diameter,  or  by  means  of  a  rectangular  net  other  than  a  seine,  con- 
taining not  more  than  thirty-six  square  feet  of  net  surface. 


Forfeiture  of 
fish,  boats  and 
apparatus. 
1869,  384, 
§§  15,  22. 
1871,  281, 
§1  1,2. 
P.  S.  91. 
S§30,31,41,i;l. 
1884,  318,  §  1. 
1890,  231. 
1894,  189,  §  3. 
R.  L.  91. 
I§  78,  79. 


Section  76.     Whoever  takes  any  fish  in  violation  of  any  provision  of  1 

section  thirty-five,  thirty-eight,  forty-one,  forty-two,  forty-eight  or  sixty-  2 

nine  or  violates  any  provision  of  section  thirty-five,  forty-two,  seventy-  3 

three  or  one  hundred  and  fifty,  shall,  in  addition  to  the  penalties  therein  4 

provided,  forfeit  the  boat  and  apparatus  used,  and  whoever  violates  5 

any  provision  of   section  thirty-five,  forty-one  or  forty-three  shall,  in  6 

addition  to  the  penalties  therein  provided,  forfeit  the  fish  taken  and  the  7 

apparatus  used.    This  section  shall  not  apply  to  fish  taken  in  accordance  8 

with  the  preceding  section.  9 


Keepers  of  fish 
markets,  etc., 
to  give  in- 
formation of 
unlawful 
taking. 
Penalty. 
1869,  384,  §  25. 
P.  S.  91,  §  62. 
R.  L.  91,  §  SO. 


Section  77.  Every  superintendent,  clerk  or  other  person  having 
charge  of  a  market,  provision  store  or  other  place  where  fish  are  sold, 
who  has  reasonable  cause  to  believe  that  any  fish  taken  in  violation  of 
law  has  been  offered  for  sale  on  such  premises,  shall  immediately  give 
information  thereof  to  a  constable  or  trial  justice  in  the  town  where 
said  premises  are  situated;  and  for  each  neglect  so  to  do  shall  be  pun- 
ished by  a  fine  of  not  less  than  five  nor  more  than  fifty  dollars. 


Introduotion 
of  fish  into 
state  waters. 
1911,  185. 


Section  78.  Whoe\er  puts  in  any  of  the  public  waters,  or  in  any 
waters  connecting  therewith,  any  species  of  fish,  or  the  roe,  spawni  or 
fry  thereof,  without  having  first  secured  the  WTitten  approval  of  the 
director,  shall  be  pimished  by  a  fine  of  not  more  than  fifty  dollars. 


Taking  of 
scallops 
regulated. 
1887,  96,  § 
1896,  268, 
R.  L.  91,  § 

1906,  288. 

1907,  297,  i 

1909,  403, 
§5  1.4. 

1910,  177, 
S§  1,5. 
1919,334; 
350,  §  43. 


CERTAIN   SHELLFISH   AND    EELS. 

Section  79.  No  person  shall  take  from  the  flats  or  waters  of  the  com-  1 
monwealth  scallops  other  than  adult  scallops,  or  sell  or  offer  for  sale  or  2 
have  in  possession  such  scallops  so  taken.  For  the  purposes  of  this  3 
section  an  adult  scallop  shall  be  a  scallop  with  a  well  defined  raisetl  4 
annual  growth  line.  Scallops  taken  from  the  tide  waters  of  the  common-  5 
wealth  shall  be  culled  when  taken,  and  all  scallops  other  than  adult  6 
scallops  shall  immediately  be  returned  alive  to  tide  water  which  is  at  7 
least  tliree  feet  deep  at  mean  low  water;  but  it  shall  not  be  unlawful  to  8 
sell  or  have  in  possession  scallops  other  than  adult  scallops  unavoidably  9 
left  in  the  catch  after  it  has  been  culled,  to  the  amount  of  not  more  than  10 
five  per  cent  of  the  total  catch  remaining.  All  scallops  taken  in  accord-  1 1 
ance  with  this  section  shall  be  taken  ashore  in  the  shell.  This  and  the  12 
following  section  shall  not  apply  to  seed  and  adult  scallops  carried  by  13 
storm  and  tide  from  the  natural  beds  and  deposited  on  beaches  and  flats  14 


Chap.  loO.]  fisheries.  1327 

l.j  where,  in  the  opinion  of  the  director,  they  cannot  survive,  but  tlie  taking 

16  and  sale  of  the  said  seed  and  adult  scallops  may  be  authorized  by  him 

17  at  any  season  of  the  year,  subject  to  section  eighty-four.    The  director 

18  shall  prescribe  rules  and  regulations  governing  the  taking  and  sale  of 

19  the  said  seed  and  adult  scallops  by  special  permits  or  otherwise,  to  pre- 

20  vent  the  sale  of  seed  scallops  at  any  time,  or  the  sale  of  adult  scallops 

21  betw^een  April  first  and  October  first,  except  as  authorized  herein. 

1  Section  SO.     No  person  shall  take  scallops  between  April  first   and  Skcn°berween 

2  October  first  from  the  flats  or  waters  of  the  commonwealth,  or  buy  or  ^prii  first  and 

111*  •  n  111*  -1      11  October  first, 

.3  sell  or  have  ui  possession  scallops  so  taken;    but  this  section  shall  not  etc. 

4  apply  to  the  taking  of  scallops  for  bait  in  the  waters  adjacent  to  the  isst^oo, '§  i. ' 

5  town  of  Nantucket  from  April  first  to  May  fifteenth,  inclusive,  nor  shall  isqo^Sus^  §  i. 

6  the\-  prohibit  any  person  at  any  time  from  taking  scallops  by  hand  for  ^^l;  gj^j  §3 

7  food  for  his  own  personal  or  family  use. 

1908,  270,  §  2.  1909,  403,  §§  2,  4.  1910,  177,  §§  2,  5. 

1  Section  81.     No  person  shall  take  more  than  ten  bushels  of  scallops  Taking 

2  including  shells  in  one  day.  i9io.  177,  §  3.  ^™'*^- 

1  Section  82.     The  provisions  of  the  two  preceding  sections  in  respect  Modification  of 

^  11  1    •  1  1  i>  11  close  season, 

2  to  the  open  and  close  season  and  m  respect  to  the  number  or  scallops  etc 

....  19'^0  139 

.3  that  may  be  taken  may  be  modified  if,  on  petition  of  the  aldermen  or     '  ' 

4  selectmen  to  the  director,  the  director,  after  investigation,  determines 

5  that,  owing  to  unusual  circumstances,  such  modification  is  expedient. 
()  In  that  case,  in  his  discretion,  he  may  authorize,  for  a  prescribed  period, 
7  the  aldermen  or  selectmen  to  issue  permits  to  inhabitants  of  their  re- 
S  spective  cities  or  towns  to  take  scallops  in  such  quantities  and  at  such 
9  times  as  he  deems  expedient. 

1  Section  S3.     Whoever  violates  any  provision  of  the  four  preceding  Penalty. 

2  sections  shall  be  punished  by  a  fine  of  not  more  than  twenty-fi\e  dollars.  Iss^ige"'    *' 

3  Possession  of  scallops,  other  than  adult  scallops,  except  as  is  otherwise  R^'^lg'i*' 

4  provided  in  section  seventy-nine,  shall  be  prima  facie  e\-idence  that  flos^'als 

5  such  scallops  were  unlawfully  taken.  1907, 297, 5  3. 

190S,  270,  §1.  1909,  403,  §§'3.  4.  1910,  177,  §§  4,  5. 


1  Section  84.     The  aldermen  or  selectmen,  if  so  instructed  by  their  City  and  town 

2  cities  or  towns,  may,  except  as  provided  in  sections  seventy-nine  to  regulate 'the 

3  eighty-three,  inclusive,  control,  regulate  or  prohibit  the  taking  of  eels,  certain  fish,  etc. 

4  clams,  quahaugs,  razor  fish,   so  called,   and   scallops  within  the  same;  }||?;  103; 

5  and  maj^  grant  permits  prescribing  the  times  and  methods  of  taking  eels  Fils^pg 

G  and  such  shellfisli  within  such  cities  and  towns  and  make  such  other  regu-  Jg?'  s^i- . 

7  lations  in  regard  to  said  fisheries  as  they  deem  expedient.    But  an  in-  R.i- 91, '§ ss! 

•  1913517 

8  habitant  of  the  commonwealth,  without  such  permit,  may  take  eels  and  igisiss." 

9  the  shellfish  above  named  for  his  own  family  use  from  the  waters  of  his  174  Mass!  29! 

10  own  or  any  other  city  or  town,  and  may  take  from  the  waters  of  his 

11  own  city  or  town  any  of  such  shellfish  for  bait,  not  exceeding  three 

12  bushels,  including  shells,  in  any  one  day,  subject  to  the  general  rules  of 

13  the  aldermen  and  selectmen,  respectively,  as  to  the  times  and  methods 

14  of  taking  such  fish;  provided,  that  no  person  shall  take  scallops  exceeding 

15  in  quantity  three  bushels  in  any  one  week  from  the  waters  of  any  city 

16  or  town  by  dredging  without  first  obtaining  a  written  permit  from  the 

17  aldermen  or  selectmen   of  such  citv  or  town.     This   section  shall  not 


1328 


FISHERIES. 


[Chap.  130. 


authorize  the  taking  of  fish  in  violation  of  the  provisions  of  sections  IS 
forty-four  and  forty-five  of  chapter  ninety-one  of  the  Revised  Laws.  19 
Wlioever  takes  any  eels  or  any  of  said  shellfish  without  such  permit,  20 
and  in  violation  of  any  provision  of  this  section,  shall  be  punished  by  a  21 
fine  of  not  less  than  three  nor  more  than  fifty  dollars.  This  section  22 
shall  not  afi'ect  section  one  of  chapter  two  hundred  and  fifty-five  of  the  2.3 
acts  of  eighteen  hundred  and  ninety-three.  24 


Cities  and 
towns  may 
grant  licenses 
for  the  plant- 
ing, etc.,  of 
quahaugs. 
1909,  469,  §  1. 


Section  S.j.  Upon  wTitten  application,  the  aldermen  or  selectmen 
may  grant  a  written  license  subject  to  such  rules  and  regulations  as  are 
approN'ed  by  the  city  council  of  a  city,  or  by  the  voters  of  a  town  at  a 
town  meeting,  for  the  piu-pose  of  planting  and  cultivating  quahaugs 
upon  and  in  the  flats  and  creeks  of  their  respective  cities  and  towns 
below  mean  low  water  mark  and  within  the  limits  to  be  specified  in  the 
license,  for  a  term  of  not  less  than  five  nor  more  than  ten  years,  to  any 
person  who  has  resided  in  the  commonwealth  or  has  been  a  taxpayer 
in  the  city  or  town  for  not  less  than  one  year  preceding  the  date  of  his 
application;  and  all  such  licenses  may,  with  the  WTitten  consent  of  the  10 
aldermen  or  selectmen,  be  assigned  by  the  licensee  to  any  person  who  11 
has  been  a  resident  of  the  commonwealth  or  a  taxpayer  in  the  city  or  12 
town  fur  not  less  than  one  year  preceding  the  date  of  the  assignment.        13 


Additional 
license  may  be 
granted  to  bed 
quahaugs,  etc. 
1909,  409,  §  2. 


Section  86.  The  aldermen  or  selectmen  may  grant  a  licensee  under 
the  preceding  section  an  additional  license  for  the  purpose  of  bedding 
quahaugs  and  of  gathering  the  seed  from  the  same  between  high  and  low 
water  mark  for  such  period,  not  exceeding  five  years,  and  under  such  con- 
ditions as  they  deem  proper.  The  territory  to  be  covered  by  the  said 
license  shall  not  include  more  than  one  half  acre. 


Navigable 
water  not  to 
be  obstructed. 
Hearing. 
Contents  of 
and  recording 
licenses. 
Survey,  etc. 
1909,  4liH, 
§§  3,  5,  6. 


Section  S7.     The  licenses  provided  for  in  the  two  preceding  sections  1 

shall  not  be  granted  if  their  exercise  woidd  materially  obstruct  na\igable  2 

water.     No  license  shall  be  granted  under  said  sections,  until  after  a  8 

public  hearing,  due  notice  of  which  has  been  posted  in  three  or  more  4 

public  places,  and  published  in  a  newspaper,  if  any,  published  in  the  city  5 

or  town  Mhere  the  premises  are  situated,  at  least  ten  days  before  the  time  G 

fixed  for  the  hearing,  stating  the  name  and  residence  of  the  applicant,  7 

the  date  of  the  filing  of  the  application,  and  the  location,  area  and  de-  8 

scription  of  the  grounds  applied  for.     Such  a  license  shall  describe  by  9 

metes  and  bounds  the  waters,  flats  and  creeks  to  which  the  license  is  appli-  10 

cable,  and  shall  ha\e  no  force  until  recorded  with  the  clerk  of  the  city  or  1 1 

town  granting  the  same,  and  the  licensee  shall  pay  annually  to  the  city  or  12 

town  a  fee  of  rfot  less  than  one  nor  more  than  five  doDars  per  acre  for  the  1  '.i 

license,  as  the  aldermen  or  selectmen  determine.    A  recording  fee  of  fift;\'  14 

cents  shall  be  paid  to  the  city  or  town  clerk  for  recording  each  license  1.5 

or  an  assignment  thereof.    Each  license  and  any  assignments  thereof  16 

shall  be  recorded  in  a  book  kept  therefor  in  the  office  of  the  said  clerk,  17 

which  shall  be  open  to  public  inspection.    Forms  for  licenses  and  assign-  18 

ments  shall  be  provided  by  the  aldermen  or  selectmen  at  the  expense  19 

of  the  city  or  town.     Before  granting  any  such  license  the  aldermen  or  20 

selectmen  shall  cause  to  be  made  a  sur\ey  and  plan  of  the  territory  within  21 

which  licenses  are  to  be  granted,  and  shall  cause  to  be  marked  upon  a  copy  22 

of  such  plan  to  be  kept  in  the  office  of  the  city  or  town  clerk  the  territory  23 

covered  by  any  license  issued  by  them.    The  licensee  upon  receiving  his  24 


CUAP.    l:!0.]  FISHERIES.  1329 

25  license  shall  cause  the  territory  oo\"ere(l  thereby  to  be  plainly  marked 

26  out  by  stakes,  buoys,  ranges  or  monuments  which  shall  be  maintained 

27  by  him  during  the  term  of  the  license.    Failure  to  place  or  to  maintain 

28  the  same  shall  be  sufficient  cause  for  revocation  of  the  license. 

1  Section  88.     No  person,  except  the  licensee  or  his  agents  or  assignees,  No  person 

2  shall  dig  or  take  quahaugs  or  quahaug  seed  within  or  remove  the  same  ficensee*to  take 

3  from  territory  covered  by  such  a  license.  1909, 469,  §  4.  quahaugs,  etc. 

1  Section  89.     If  it  appears  to  the  aldermen  or  selectmen  granting  a  superior  court 

2  license  that  the  licensee  or  liis  assignee  does  not  actually  occupy  and  TOmnSon'to 

3  use  in  good  faith  for  the  purposes  specified  in  sections  eighty-five  and  llccnsre'il '^ 

4  eighty-six  the  territory  covered  by  the  license,  they  shall  petition  the  f'.['t'|""(,\"  ^""'^ 

5  superior  court  of  the  county  where  the  territory  is  situated  to  appoint  a  i90y,'4G9',  §  7. 
(J  commission  of  one  or  more  persons  to  in\estigate  and  report  to  the  court 

7  as  to  the  use  and  occupancy  of  such  territory;  and  the  court  shall  appoint 

8  a  commission  of  one  or  more  persons  \\ho,  after  twelve  days'  notice  to 

9  the  petitioners  and  the  respondent,  shall  hear  the  petitioners  and  respond- 

10  ent  and  shall  transmit  their  findings  to  the  court.    If  the  court  finds  that 

11  the  said  territory  is  not  used  and  occupied  in  good  faith  for  the  pm-pose 

12  stated  in  the  license,  the  court  may  order  that  use  of  the  territory  shall 

13  revert  to  the  city  or  town  and  that  all  stakes  or  buoys  or  other  appli- 

14  ances  marking  the  same  shall  be  removed.    The  costs  upon  said  petition 

15  shall  be  assessed  as  the  court  may  direct. 

1  Section  90.      The  licensee,  his  heirs  or  assigns  shall   for  the  pur-  Licensee  to 

2  poses  described  in  the  license  have  the  exclusive  use  of  the  territory  tlse.^  Xt"ion " 

3  described  therein  during  the  term  of  the  license  and  may  in  tort  recover  taifi.fg^eto^  '°^ 

4  treble  damages  of  any  person  who,  without  his  or  their  consent,  digs  or  i\>en°"' 

5  takes  quahaugs  or  other  shellfish  in  the  territory  covered  by  the  license  '7"f''°*-„ 

6  or  removes  the  same  therefrom.    Whoever  so  digs,  takes  or  removes  qua- 

7  haugs  or  other  shellfish  shall,  in  addition,  be  punished  by  a  fine  of  twenty 

8  dollars. 

LOBSTERS. 

1  Section  91.     Whoever  at  any  time  takes  or  has  in  possession  with  Penalty  for 

2  intent  to  sell,  or  sells,  any  female  lobster  bearing  eggs  shall  be  punished  Shste^rf.*""''* 

3  by  a  fine  of  not  less  than  ten  nor  more  than  one  hundred  dollars  or  by  lfili'°' 

4  imprisonment  for  not  less  than  one  nor  more  than  three  months;   but  a  j'sli^gs 

5  person  who  takes  any  such  lobster  and  immediately  returns  it  alive  to  iss^,  98 

0  the  waters  from  which  it  was  taken  shall  not  be  subject  to  such  penalty,  issa!  log!  §  i! 

7  This  section  shall  not  apply  to  lobsters  spawning  in  lobster  cars  if  they  r.  l!9i,  " 

8  are  immediately  returned  alive  to  the  waters  from   wjiich  they  were  immIJs.  278. 

9  taken  nor  to  the  taking,  possession  or  sale  of  lobsters  as  provided  in  the  2  0p.  a.  G.321. 

10  following  section.     Exposure  for  sale  or  possession  otherwise  than  as 

11  herein  provided  shall  be  prima  facie  e^^dence  of  an  intent  to  sell.    Alder- 

12  men,  selectmen,  police  officers  and  constables  shall  enforce  this  section 

13  in  their  respective  cities  and  towns. 

1  Section  92.     The  director  may  purchase  to  the  extent  of  the  money  Director  may 

2  provided  therefor,  and  at  a  rate  not  above  the  market  price  of  other  KtCTsfwith 

3  lobsters,  lobsters  with  eggs  attached  taken  along  the  shores  of  the  com-  eaughtSong''' 

4  monwealth.    Whoever  takes  any  such  lobsters  with  eggs  attached  mav,  ^l"'  ^^"^"^  °' 

r       £.  Ij.-*  -p  it  (.1  1  V       tlie  romnion- 

o  alter  obtammg  a  permit  from  the  du'ector,  saieh'  store  the  same  in  »caith,  etc 

'^  ^  '  -'  1904.  408. 


1330 


FISHERIES. 


[Chap.  1.30. 


1917,  235, 
«1,  3. 

1918,  257, 
§320. 

1919,5;    350, 
§43. 

1920,  2. 


lobster  cars  or  sections  of  cars  used  for  such  purpose  only,  and  shall  keep  6 

them  separate  from  other  lobsters  until  such  time  as  the  director  or  his  7 

agents  can  gather  and  pay  for  the  same.    The  director  or  his  agents  shall  8 

liberate  said  lobsters  in  the  ^■icinity  of  their  place  of  taking.     The  di-  9 

rector  may  also  purchase  egg  bearing  lobsters  found  in  the  possession  of  10 

lobster  dealers  and  for  such  purpose  may  expend  a  sum  not  exceeding  11 

that  expended  as  above  authorized.  12 


Purchased 
lobsters  to  be 
marked;  pos- 
session of  such 
lobster,  etc., 
prohibited. 
1917,  235,  §  2. 
1919,  350,  §  43. 


Section  93.  The  director  or  his  agents  shall  mark  in  some  suitable 
manner,  and  before  their  release,  all  lobsters  purchased  under  the  pre- 
ceding section,  and  any  lobsters  so  marked  shall  not  again  be  purchased. 
Any  person  having  in  possession  any  lobster  so  marked,  or  any  lobster 
mutilated  in  such  manner  as  to  hide  or  obliterate  the  said  mark,  shall  be 
punished  by  a  fine  of  not  less  than  two  nor  more  than  two  hundred 
dollars. 


Sale  of                Section  94.     All  lobsters  or  parts  of  lobsters  sold  for  use  in  or  export  1 

lobsters   etc.  ^ 

regulated.    '     from  the  commonwealth  shall  be  sold  and  delivered  in  the  shell,  except  2 

as  provided  in  section  ninety-eight.  3 

unraw'tuiir           Section  95.     No  person  shall  sell,  give  away,  ship  or  buy  lobster  meat  1 

selling,  etc.,       after  the  same  has  been  taken  from  the  shell,  except  as  provided  in  sec-  2 

lobster  meat.  .  .  .  '.  ,      ,,   ,  .    ,       ,  , 

1913, 643,  §  2.    tion  mnety-eight.    Vv  hoever  Molates  this  section  shall  be  pumshed  by  a  3 

fine  of  not  more  than  twenty-five  dollars.  4 


Penalty  for 
unlawful 
transportation 
of  lobster  meat. 
1913,  643,  §  3. 


Section  96.     No  common  carrier  shall  carry  from  one  place  to  another  1 

any  lobster  meat  unless  the  same  has  been  legally  taken  from  the  shell;  2 

and  whoever  knowingly  violates  this  section  shall  be  punished  by  a  fine  of  3 

not  more  than  fifty  dollars.  4 


uniaUfuib*^*'         Section  97.     Any  lobster  meat  unlawfully  sold,  given  away,  shipped,     1 
be'TOnfiscaTed'    bought  or  transported  shall  be  liable  to  seizure  and  may  be  confiscated.         2 

1913,  043,  §  4. 


2fe*of'c^e^tam        Section  98.     SectioHS  ninety-four  and  ninety-five  shall  not  proliibit  1 

i9i3''M3'"r5     ^^^  ^^  °^  lobsters  legally  canned,  or  of  lobsters  sold  for  food  by  licensed  2 

1919, 350,  §  43.  victuallers,  or  of  lobsters  remo\'ed  from  the  shell  on  the  premises  where  3 

they  are  eaten.    Said  sections  shall  not  prohibit  the  sale  of  lobster  meat  4 

by  wdiolesale  or  retail  dealers  in  lobsters;   provided,  that  the  meat  is  5 

removed  from  the  shell  at  their  regular  place  of  business  where  lobsters  6 

are  bought  and^sold,  and  that  said  dealers  have  a  written  permit  for  such  7 

sale  from  tlie  director,  and  that  the  lobster  meat  is  so  removed  and  sold  8 

under  such  conditions  and  regulations  as  he  prescribes;    and  provided,  9 

that  the  premises  where  the  meat  is  so  removed  or  sold  are  at  all  times  10 


open  to  the  inspection  of  the  director,  wardens  and  deputies. 


11 


Penalty  for 

selling,  etc, 

small  lobsters. 

1874,  110,  §  1. 

1877,  75. 

P.  S.  91,  §84. 

1884,  212, 

§§1.2. 

1887,  314,  §  1. 

1900,  428. 

R.  L.  91.  §  88. 


Section  99.  Whoever  sells  or  offers  for  sale  or  has  in  possession  an 
uncooked  lobster  less  than  nine  inches  in  length,  or  a  cooked  lobster  less 
than  eight  and  three  quarters  inches  in  length,  measuring  from  the  end 
of  the  bone  protruding  from  the  head  to  the  end  of  the  bone  of  the  middle 
flipper  of  the  tail  of  the  lobster,  extended  on  its  back  its  natural  length, 
shall  be  punished  by  a  fine  of  not  less  than  two  nor  more  than  five  dollars 


Chap.  130.]  fisheries.  1331 

7  for  every  such  lobster,  one  half  to  the  use  of  the  town  where  the  offence  i907,  sos. 

8  is  committed  and  one  half  to  the  commonwealth;  and  in  all  prosecutions  143  Ma\s.  560. 

9  under  this  section  any  mutilation  of  a  lobster,  cooked  or  uncooked,  which  }gf  jj^gg;  Hf 

10  affects  its  measurement  shall  be  prima  facie  evidence  that  the  lobster  is  J'oJ^ a'^g '321 

11  less  than  the  required  length  and  the  possession  of  any  lobster,  cooked 

12  or  uncooked,  not  of  the  required  length  shall  be  prima  facie  evidence  of 

13  violation  of  this  section.    This  section  shall  not  apply  to  common  carriers 

14  having  lobsters  in  possession  for  the  purpose  of  transportation. 

1  Section  100.     Whoever,  before  a  lobster  is  cooked,  mutilates  it  by  Penalty  for 

2  severing  the  tail  from  the  body,  or  has  such  tail  in  possession,  shall  be  isgo,  293" 

3  punished  by  a  fine  of  five  dollars;    and  in  all  prosecutions  under  this  r^^l!  9i^'§  S9. 

4  section  the  possession,  by  any  person,  of  the  tail  of  any  uncooked  lobster 

5  so  severed  from  the  body  shall  be  prima  facie  evidence  of  violation  of 

6  this  section. 

1  Section  101.     The  commissioner  of  public  safety,  upon  written  re-  state  police 

2  quest  of  the  director,  may  detail  one  or  more  of  the  state  police  to  enforce  is84^  212%  4. 

3  section  ninety-nine.  R.  l.  91,  §  90.  1919, 350,  |§  43, 100,  loi. 

1  Section  102.     To  enforce  section  ninety-nine,  the  director,  a  M^arden,  Right  of 

2  deputy,  or  member  of  the  state  police  may  search  in  suspected  places  ilss,  251;. 

3  for,  seize  and  remove  lobsters  unlawfully  taken,  held  or  offered  for  sale,  u^l] 9if'§  gl; 

1905.  407.         1912,  46.5,  §  1.      1919,  350,  §§  43,  102.      2  Op.  A.  G.  321. 
1910,  575,  §  1.      1913,  250.         203  Mass.  516. 

1  Section  103.     No  person  either  as  principal,  agent  or  employee  shall  onlbsi"? 

2  at  any  time  catch  lobsters  in,  or  take  them  from  any  waters  within  the  '^g^jj^fjllf ■ 

3  jurisdiction  of  the  commonwealth,  or  place,  set,  keep,  maintain,  supervise,  js-js,  403. 

4  lift,  raise,  or  draw  in  or  from  the  said  waters,  or  cause  to  be  placed,  set,  1960!  230! 

5  kept,  maintained,  super^•ised,  lifted,  raised  or  dra^^Ti  in  or  from  the  said  wm,  2m. 

6  waters  any  pot,  trap,  or  other  contrivance  designed  for,  or  adapted  to,  §§\.'7.'^' 

7  the  taking  of  lobsters,  unless  licensed  so  to  do  as  provided  in  the  fol-  jl'x";!.^*' 

8  lowing  section. 

1  Section  104.     The  clerk  of  any  to\\'n  in  Essex,  INIiddlesex,  Suffolk,  Licenses. 

2  Norfolk,  Plymouth,  Barnstable,  Bristol,  Dukes  or  Nantucket  county,  1917;  312,' 

3  situated  on  the  shores  of  the  commonwealth,  shall  grant  licenses  in  the  igis,  212'. 

4  form  prescribed  and  upon  a  blank  furnished  by  the  director,  to  catch  55^2;  l'^'*' 

5  or  take  lobsters  from  the  waters  of  the  commonwealth  within  three  °i^ig)^- 

6  miles  of  the  shores  of  the  county  where  the  town  lies.     Such  licenses 

7  shall  be  granted  only  to  citizens  of  the  commonwealth  who  have  resided 

8  therein  for  at  least  one  year  next  preceding  the  date  of  the  same.     A 

9  non-resident  temporarily  residing  in  any  town  granting  such  licenses 

10  may,  during  June,  July,  August  and  September  in  each  year,  upon  pay- 

11  ment  of  the  fee  required  by  this  section  procure  a  license  to  take  lobsters 

12  for  consumption  by  the  licensee  and  liis  family  only.     Licenses,  except 

13  those   granted    to   non-residents,   shall  expire   on   November  thirtieth 

14  next  succeeding  the  granting  of  the  same  unless  sooner  revoked  as  pro- 
1.5  vided  in  the  following  section.  The  town  clerk  granting  a  license  shall 
IC)  collect  therefor  a  fee  of  one  dollar,  which,  less  fifteen  cents  to  be  retained 

17  by  liim,  shall  be  forwarded  to  the  director  on  the  first  Monday  of  the 

18  following  month,  together  with  coupons  provided  by  the  director  for  a 

19  flescription  of  the  licensee  antl  liis  buoys,  and  for  such  other  information 


1332 


FISHERIES. 


[ClIAP.    130. 


as  may  be  required.    All  books  of  forms  fm-nished  to  town  clerks  under  20 

this  section  shall  be  returned  to  the  director  on  January  first  of  each  21 

year.    Each  applicant  for  a  license  shall  state  the  color  scheme  or  other  22 

special  markings  of  the  buoys  to  be  used  by  liim  wliich  shall  be  set  forth  23 

in  liis  license,  and  all  buoys  used  by  liim  shall  be  marked  accordingly  24 

and  also  with  the  Ucensee's  initials  or  name  which  shall  be  branded  or  25 

cut  into  the  siuface  of  the  buoy.    A  licensee  under  this  section  shall  at  26 

all  times,  while  acting  in  pm'suance  of  the  license,  exliibit  liis  license  27 

upon  the  demand  of  any  officer  qualified  to  serve  criminal  process.  28 


Revocation  of 
license. 
1917,312,  §4. 
1920,434,  5  4 


Section  105.     If  a  licensee  under  the  preceding  section  is  convicted  1 

a  second  time  of  catching,  taking  or  having  in  possession  egg  bearing  2 

lobsters  or  short  lobsters,  or  of  interfering  with  the  pots  or  gear  of  other  3 

fishermen  or  is  convicted  once  of  catching,  taking  or  having  in  possession  4 

egg  bearing  or  short  lobsters  and  once  of  interfering  with  the  pots  or  5 

gear  of  other  fishermen,  he  shall  immediately  surrender  his  license  to  6 

the  officer  who  seemed  the  second  conviction,  and  the  license  shall  be  7 

void,  and  the  licensee  shall  not  receive  another  such  license  until  after  8 

the  expiration  of  one  year  from  the  date  of  the  second  conviction;  9 

provided,  that  a  conviction  of  having  short  lobsters  in  possession  shall  10 

not  be  counted  as  a  conviction  under  this  section  vmless  more  than  two  11 

per  cent  in  count  of  the  lobsters  in  possession  by  the  licensee  were  short  12 

lobsters.  13 


Report  by 
licensee,  etc. 
1917,312,  §  5. 

1919,  350,  §  40. 

1920,  434,  §  5. 


Section  106.     A  licensee  under  section  one  hundred  and  four  shall,  1 

before  receiving  a  new  license,  file  on  or  before  October  twentieth  of  that  2 

year,  a  report  of  his  catch  with  tlie  director  as  provided  in  section  one  3 

luindred  and  forty-eight.    Any  person  refusing,  or  knowingly  or  wilfully  4 

neglecting,  to  make  the  said  report  shall  not  receive  a  new  license  until  5 

the  report  is  made.    The  commissioner  of  conservation  shall  state  in  his  6 

annual  report  the  number  of  licenses  granted  under  section  one  hundred  7 

and  four.  8 


Hours  for 
drawing 
lobster  pots. 
1920,  434,  §  0. 


Section  107.  No  person  shall  tend,  lift,  raise  or  draw  a  lobster  pot 
or  trap  or  take  lobsters  from  such  pots  or  traps  except  during  the  period 
from  one  half  hour  before  sunrise  until  one  half  hour  after  sunset  except 
that  traps  may  be  taken  up  by  the  owner  at  any  time  when  they  are 
endangered  by  storms. 


R^T.'gi,  §  92.  Section  108.  Violation  of  any  provision  of  sections  one  hundred  and  1 
1917'  312'  1 0  thi'^s  to  one  hundred  and  seven,  inclusive,  shall  be  punished  by  a  fine  of  2 
1920, 434',  §  7.    not  less  than  ten  dollars.  3 


Investigation 
of  habits  of 
lobsters,  etc. 
1889,  109, 
§1  4,  5. 
R.  L.  91, 
K93,  94. 
1919,  350,  §  43. 


Section  109.  The  director  may  occupy  and  use  any  small  estuaries  1 
or  creeks  within  the  commonwealth,  not  exceeding  six,  for  the  scientific  2 
investigation  of  the  habits,  propagation  and  distribution  of  lobsters,  if  3 
such  occupation  and  use  does  not  impair  the  private  rights  of  any  per.son  4 
or  materially  obstruct  any  navigable  waters.  Notice  of  such  occupation  5 
shall  be  conspicuously  posted  and  maintained  by  the  director  at  the  6 
nearest  points  to  said  estuaries  and  creeks,  and  shall  be  recorded  in  the  7 
registry  of  deeds  in  the  county  where  they  are  situated.  8 

Whoever,  after  the  posting  and  recording  of  such  notice,  takes  any  9 
lobster  from  any  estuary  or  creek  so  occupied  as  aforesaid  shall  be  pun-  10 
ished  as  provided  in  section  ninety-one.  11 


Chap.  1.'50.]  fisheries.  1333 

1  Section  110.     All  barrels,  boxes  or  other  packages  in  transit  con-  Transportation 

2  taining  lobsters  shall  be  marked  with  the  word  "LOBSTERS"  in  capital  r'eguiatld° 

3  letters  at  least  one  inch  in  length,  together  with  the  full  name  of  the  ^^'    569.  §i. 

4  shipper.    Said  marking  shall  be  placed  in  a  plain  and  legible  manner  on 

5  the  outside  of  such  barrels,  boxes  or  other  packages,  and  in  case  of  seizure 

6  by  any  duly  authorized  officer  of  any  barrels,  boxes  or  other  packages  in 

7  transit,  containing  lobsters,  which  are  not  so  marked,  or  in  case  of  seizure 

8  by  any  such  officer  of  barrels,  boxes  or  other  packages  in  transit  con- 

9  taining  lobsters  less  than  the  prescribed  length,  such  lobsters  as  are 

10  alive  and  less  than  the  prescribed  length  shall  be  liberated,  and  all  such 

11  lobsters  as  are  of  the  prescribed  length  found  in  such  barrels,  boxes  or 

12  packages  shall  be  held  and  disposed  of  as  provided  in  section  one  hundred 

13  and  thirteen. 

1  Section  111.    Whoever  ships  lobsters  without  having  the  barrels.  Penalties. 

2  boxes  or  other  packages  in  which  the  same  are  contained  marked  as  pre-  ^  ^  '      '  ^  ' 

3  scribed  in  the  preceding  section  shall  for  a  first  oft'ence  be  punished  by  a 

4  fine  of  not  more  than  twenty-five  dollars,  and  for  a  subsequent  offence 

5  by  a  fine  of  not  more  than  fifty  dollars;   and  any  common  carrier  who 

6  knowingly  carries  from  place  to  place  lobsters  in  barrels,  boxes  or  other 

7  packages  not  so  marked  shall  be  punished  by  a  fine  of  not  more  than 

8  fifty  dollars,  and  lobsters  shipped  in  violation  of  tliis  or  the  preceding 

9  section  shall  be  forfeited  to  the  commonwealth. 

1  Section  112.     In  order  to  enforce  the  two  preceding  sections,  the  Enforcement 

2  director,  a  warden,  deputy,  or  state  police  officer  may,  without  a  war-  airii'™'  "° 

3  rant,  search  any  boat,  car,  box,  locker,  crate  or  package  and  any  building  \l\l]  1%'  ^  ^■ 

4  where  he  has  reason  to  believe  any  lobsters  are  being  transported  or  held  ^^  *^'  '°-- 

5  for  transportation  in  violation  of  law,  and  may  seize  and  hold  any  lob- 

6  sters  illegally  transported;  provided,  that  this  section  shall  not  authorize 

7  the  entering  of  a  dwelling  house,  antl  shall  not  apply  to  lobsters  passing 

8  tlirough  this  commonwealth  under  authority  of  the  laws  of  the  United 

9  States. 

1  Section  113.     When  any  lobsters  are  seized  by  \irtue  of  the  three  pre-  Proceedings 

2  ceding  sections,  the  officer  making  the  seizure  shall  immediately  notify  seizure  of 

3  the  shipper  thereof,  if  known,  and  shall  forthwith  proceed  to  enforce,  in  ^"g'is'^Gg,  §  4. 

4  accordance   with  chapter  two  hundred  and  fifty-seven,  the  forfeiture 

5  of  such  lobsters,  so  seized,  as  he  is  not  reciuired  to  liberate.    He  shall 

6  cause  the  appraisal  required  by  section  thirteen  of  said  chapter  to  be 

7  made  within  twenty-foiu-  hours  after  the  time  of  such  seizure,  and  after 

8  said  appraisal  may  sell  the  said  lobsters  at  such  time  or  in  such  manner 

9  as  he  deems  proper.     He  shall  pay  the  proceeds  thereof  into  the  court 

10  before  \\hich  the  libel  for  forfeiture  is  pending,  and  the  court  may  decree 

11  a  forfeitiu-e  of  said  proceeds,  or  payment  thereof  to  a  claimant,  or  any 

12  other  appropriate  disposition  thereof. 

fishing  for  lobsters,  tautog,  etc.,  in  certain  waters. 

1  Section  114.     No  person  living  without  this  commonwealth  shall  fa'kkig'iob"teL, 

2  take  any  lobsters,  tautog,  bass  or  other  fish  witliin  the  harbors,  streams,  ^^'^j'^^  certain 

3  or  waters  of  Fairhaven,  New  Bedford,  Dartmouth  or  Westport  for  the  j^^^^'fj'lg- 

4  purpose  of  carrying  them  thence  in  vessels  or  smacks  of  any  size  what-  c'.  s.  83!  1 4'. 

5  ever  owned  without  this  commonwealth,  nor  in  anv  of  more  than  fifteen  r.  l.  91,  §95. 


1334 


FISHERIES. 


[Chap.  1.30. 


tons  burden  owned  M'ithin  this  commonwealth,  under  a  penalty  of  ten     6 
dollars  for  each  offence  and  a  forfeiture  of  all  fish  and  lobsters  so  taken.       7 


Boundaries 
defined. 
1821,  97,  §  2. 
R.  S.  55,  §  6. 
G.  S.  83,  §  5. 
P.  S.  91,  §  87. 
R.  L.  91.  §  96. 


Section  115.  For  the  purposes  of  the  preceding  section,  the  waters 
and  shores  of  the  places  therein  mentioned  shall  be  deemed  to  extend 
from  the  line  of  the  state  of  Rhode  Island  to  the  line  of  Plymouth  county, 
and  to  include  all  the  waters,  islands  and  rocks  lying  within  one  mile  of 
the  main  land. 


Penalty  if 
certain  statutes 
have  been 
accepted. 
1839,  85, 
n  1.3. 
G.  S.  83,  §  6. 
P.  S.  91,  §  88. 
R.  L.  91,  §  97. 


Section  116.  If,  ■within  the  harbors,  streams,  or  waters  of  any  town 
on  the  sea  coast  which  accepts  this  section  or  has  accepted  corresponding 
provisions  of  earlier  laws,  a  person  who  lives  without  the  commonwealth 
takes,  for  the  purpose  of  carrying  thence,  any  lobsters,  tautog,  bass, 
bluefish  or  scuppaug,  or  if  a  person  who  lives  in  tliis  commonwealth  takes 
and  carries  away  from  such  place  any  such  fish  or  lobsters  in  vessels  or 
smacks  of  more  than  fifteen  tons  burden,  he  shall  forfeit  not  more  than 
twenty  dollars,  and  all  the  fish  and  lobsters  so  taken. 


Prohibition  of 
taking  lobsters 
in  waters  of 
Provincetown. 
1821,  102,  §  1. 
R.  S.  55, 
§§  7-9. 
G.  S.  83, 
§§  7-9. 
P.  S.  91, 
§§  89-91. 
R.  L.  91,  I  98. 


Section  117.  No  person  shall  take  lobsters  witliin  the  waters  and  1 
shores  of  Pro\ancetown  for  the  purpose  of  carrying  them  from  said  waters  2 
in  a  vessel  or  smack  of  more  than  fifteen  tons  burden,  or  for  the  pm-pose  of  .3 
putting  them  on  board  of  such  vessel  or  smack  to  be  transported  to  any  4 
place,  unless  a  permit  is  first  obtained  therefor  from  the  selectmen  of  said  .5 
town,  who  may  grant  the  same  for  such  amount,  to  be  paid  to  the  use  6 
of  the  town,  as  they  deem  proper.  Whoever  violates  this  section  shall  7 
forfeit  ten  dollars;  and  a  fiuther  amount  of  ten  dollars  for  every  hundred  8 
lobsters  over  the  first  hundred  taken  or  found  on  board  of  any  such  vessel  9 
or  smack,  and  in  that  proportion  for  any  smaller  number.  For  the  pur-  10 
poses  of  this  section,  the  waters  and  shores  of  Provincetown  shall  be  11 
deemed  to  be  as  follows:  beginning  at  Race  Point,  one  half  mile  from  the  12 
shore,  and  thence  running  by  said  shore  to  the  end  of  Long  Point  which  13 
forms  the  harbor  of  Provincetown,  and  from  the  end  of  Long  Point  one  14 
half  mile  and  including  the  harbor  within  the  town  of  Provincetown.         15 


Penalty  for 
unlawfully 
destroying 
oysters. 
1764-5, 
25.  I  1. 
1771-2,  13, 
§§1.2. 


OYSTERS. 

Section  118.  Whoever  takes  oysters  from  their  beds,  or  destroys 
them  or  wilfully  obstructs  their  growth  therein,  except  as  is  provided  in 
the  following  sections,  shall  forfeit  two  dollars  for  every  bushel  of  oysters, 

1795,  71,  I  1. 


including  the  shells,  so  taken  or  destroyed. 


R.  S.  55,  §  11. 
G.  S.  83,  §  11. 


P.  S.  91.  §93. 
R.  L.  91,  §  100. 


13  Allen.  541. 
221  Mass.  323. 


Selectmen  may 
give  permits  to 
take  ovsters. 
1764-6,  25, 
§§  1.2. 
1795,  71,  §  1. 
R.  S.  55,  §  12. 
G.  S.  S3,  §  12. 
1879,  105. 
P.  S.  91,  §  94. 
1892,  74. 
R.  L.  91,  5  101. 
7  Met.  438. 


Section  119.  The  aldermen  of  a  city  or  selectmen  of  a  town  where 
there  are  oyster  beds  may  grant  a  written  permit  to  any  person  to  take 
oysters  from  their  beds  at  such  times,  in  such  quantities  and  for  such 
uses  as  they  shall  express  in  their  permit;  but  e\ery  inhabitant  of  such 
city  or  town,  except  Yarmouth,  may,  without  such  permit,  take  oysters 
from  the  beds  therein  for  the  use  of  his  family,  from  September  first  to 
June  first,  not  exceeding  in  any  week  two  bushels,  including  the  shells. 

221  Mass.  323. 


Hc?nsesfo?^he       Section  120.     The  aldermen  of  any  city,  or  the  selectmen  of  any  town,     1 
cultivation  of     [^  Bamstablc,  Bristol,  Dukes  or  Nantucket  countv,  may,  after  a  public    2 

oysters  in  ''  ».'..'a 


Chap.  130.]  fisheries.  1335 

3  hearing,  grant  to  any  inhabitant  of  such  city  or  town,  or  to  a  firm  com-  Bamstabie, 

4  posed  of  inhabitants  thereof,  or  to  a  domestic  corporation,  a  Ucense  for  a  and  Nintucket. 

5  period  of  fifteen  years  to  plant,  grow  and  dig  oysters,  or  to  plant  shells  etc"°  ""'"' 

6  for  the  purpose  of  catcliing  oyster  seed  upon  and  in  any  territory  below  §§\%^.®'^' 

7  mean  low  water  mark,  within  the  limits  of  the  city  or  town,  and  within  the 

8  limits  specified  in  the  license,  on  such  terms  and  conditions  as  they  deem 

9  proper,  not,  however,  so  as  materially  to  obstruct  navigable  waters.    Such 

10  license,  when  granted,  may  be  transferred  to  any  person  to  whom  it 

1 1  might  originally  have  been  granted,  subject  to  the  approval  of  the  author- 

12  ities  granting  it.     Any  such  license  may,  witliin  two  years  before  the 

13  expiration  of  the  same,  be  renewed  for  a  fiu'ther  term  of  fifteen  years, 

14  after  a  public  hearing.    All  territory  for  wliich  a  license  is  granted  shall 

15  be  designated  by  suitable  bounds,  consisting  of  stakes  or  buoys,  one  at 

16  each  of  the  several  corners  of  every  grant,  so  that  the  boundaries  thereof 

17  may  be  evident  at  high  and  low  tide;  and  the  said  boimds  shall  be  main- 

18  tained  by  the  licensee  under  penalty  of  forfeiture  of  the  license.    The 

19  aldermen  and  selectmen  shall  keep  at  their  offices  records  open  to  public 

20  inspection  of  each  license,  describing  by  metes  and  bounds  the  waters, 

21  flats  and  creeks  so  licensed,  and  a  map  or  chart  of  all  such  licensed 

22  property. 

1  Section  121.     Every  licensee  shall  be  required  to  submit  on  oath  Licensees  to 

2  to  the  aldermen,  or  selectmen,  or  to  a  duly  authorized  inspector  appointed  Kportl'et"'' 

3  by  them,  an  annual  report  of  the  total  number  of  bushels  of  oysters  ^''"'  ^^^-  ^  ^' 

4  planted  or  produced  upon  the  territory  covered  by  the  license,  and  an 

5  estimate  of  the  total  number  of  bushels  of  oysters  at  that  time  planted 

6  or  growing  upon  said  territory,  and  if  the  total  amoimt  falls  below  fifty 

7  bushels  per  acre,  on  any  grant  less  than  six  acres,  or  if  said  inspector, 

8  after  due  examination,  finds  that  the  quantity  of  oysters  planted  or 

9  growing  is  less  than  fifty  bushels  per  acre  on  any  grant  less  than  six 

10  acres,  or  less  than  five  hundred  bushels  on  any  grant  over  six  acres,  for 

11  three  consecutive  years,  then  the  license  may  be  declared  forfeited  and 

12  the  grant  shall  revert  to  the  place  where  situated. 

1  Section  122.     Any  inhabitant,  firm  or  corporation,  qualified  as  pro-  Application  for 

2  \'ided  in  section  one  hundred  and  twenty  and  desiring  to  obtain  a  license  i9i4r597,"§  4. 

3  thereunder,  shall  present  to  the  aldermen  or  selectmen  a  WTitten  applica- 

4  tion  setting  forth  the  name  and  address  of  the  applicant,  a  reasonably 

5  definite  description  of  the  desired  territory,  and  shall  petition  that  the 

6  applicant  be  registered,  that  the  territory  be  surveyed,  that  a  plan  or 

7  map  be  made,  and  that  such  license  be  granted  to  the  applicant.    When 

8  such  license  is  granted,  the  authorities  granting  it  shall,  after  the  sur- 

9  vey  is  made,  locate  the  corners  for  the  licensee  without  charge,  but  the 
10  relocation  of  corners  shall  be  at  his  expense. 

1  Section  123.     Every  such  licensee  shall  pay  an  annual  fee  per  acre,  Fees. 

2  the  amount  of  which  shall  be  fixed  for  the  term  of  five  years  according  to 

3  a  just  and  equitable  valuation  by  the  authorities  granting  such  license 

4  or  by  their  duly  appointed  agents,  under  penalty  of  forfeiture  of  the 

5  license  if  the  rental  is  not  paid  within  six  months  after  it  becomes  due. 

6  The  money  received  from  the  annual  fees  may  be  expended,  so  far  as 

7  may  be  necessary,  for  the  protection  and  surveying  of  the  grants, .and 

8  the  remainder  shall  be  paid  to  the  city  or  town. 


1336 


FISHERIES. 


[ClIAP.    130. 


Section  124.     Everv  such   licensee   shall   have   the   number  of  his 


License 
number  to  be 

igw'^sgy  §  6     license  painted  in  letters  at  least  two  inches  in  height  in  a  conspicuous 
place  on  his  buoys,  or  on  flags  attached  to  stakes. 


Jys't'elf  between  SECTION  125.  No  licensee  or  other  person  shall  dig,  take  or  carry  1 
"^rowbited""  away  any  oysters  or  shells  from  any  waters,  flats  or  creeks,  between  one  2 
1914, 597.  §  7.    hour  after  sunset  and  one  hour  before  sunrise,  by  any  method  whatever.     3 


Penalty  for 
injuring 
boundary 
marks,  etc. 
1914,  597,  §  8. 


Section  126.     \^Tioever  wilfully  injures,  defaces,  destroys  or  removes  1 

any  mark  or  bound  used  to  define  the  extent  of  any  such  license  or  grant,  2 

or  places  any  imauthorized  mark  thereon,  or  ties  or  fastens  any  boat  or  3 

vessel  thereto,  shall  be  punished  by  a  fine  of  not  less  than  three  nor  more  4 

than  twenty  dollars  and  shall  be  liable  in  tort  for  double  damages  and  5 

costs  to  the  licensee  injured  by  such  act.  6 


Penalty  for 
injuring  or 
unlawfully 
taldng  planted 
oysters. 
1914,  597.  §  9. 


Section  127.     Whoever  works  a  dredge,  oyster  tongs  or  rakes,  or  1 

any  other  implement  for  the  taking  of  oysters  upon  any  territory  offi-  2 

cially  designated  as  licensed,  or  in  any  way  disturbs  the  growth  of  planted  3 

oysters,  without  the  consent  of  the  licensee  during  the  continuance  of  4 

such  license,  or  discharges  any  substance  which  may  directly  or  indi-  5 

rectly  injure  the  planted  oysters,  shall  for  the  first  offence  be  punished  6 

by  a  fine  of  not  less  than  five  nor  more  than  one  hundred  dollars,  and  7 

for  a  subsequent  oft'ence  by  a  fine  of  not  less  than  one  hundred  nor  more  8 

than  two  hundred  dollars  or  by  imprisonment  for  not  more  than  six  9 

months,  or  both.  10 


Penalty  for 
placing  stones, 
scoopings.  etc., 
on  oyster 
beds,  etc. 
1914,  597,  §  10. 


Section  128.     Whoever  wilfully  breaks  up,  damages  or  injures   any  1 

bed  of  oysters,  or  any  tract  of  land  leased  from  the  commonwealth  or  2 

licensed  by  any  town  for  an  oyster  bed,  by  depositing  thereon  earth,  3 

stones  or  dredging,  or  scoopings,  shall  be  punished  by  a  fine  of  not  less  4 

than  twenty-five  nor  more  than  five  hundred  dollars.  5 


Arrest  and 
detention  of 
offenders. 
1914,  597,  §  11. 


Section  129.    The  director,  a  warden,  deputy,  police  officer  or  con-  1 

stable  witnessing  the  commission  of  any  act  prohibited  by  the  nine  pre-  2 

ceding  sections  shall,  without  a  warrant,  arrest  the  offender  and  detain  3 

him  until  an  application  for  a  warrant  may  be  made.  4 


No  territory 
to  be  granted 
in  polluted 
waters. 
1914,  597,  §  12 


Section  130.    To  protect  the  purity  of  oysters,  no  territory  in  pol-  1 

luted  water  shall  be  granted  for  tlie  growing  of  oysters  for  market.    The  2 

licensing  authorities  and  inspectors  appointed  under  section  one  hun-  3 

dred  and  twenty-one  may  make  examinations  necessary  to  ascertain  4 

the  sanitary  condition  of  the  waters  over  and  adjacent  to  the  oyster  pro-  5 

ducing  area,  and  may  give  WTitten  certificates  of  the  sanitary  condition  6 

thereof.  7 


Granting  of 
licenses  in 
counties  not 
covered  by 
section  122, 
Revocation. 
Penalties. 
1848,  152. 
G.  S.  83. 
«  16-18. 
1869,  172,  §  8 
P.  S.  91, 
§§  97-99. 
1884,  284. 


Section  131.    In  cities  and  to-wns  in  counties  not  mentioned  in  sec-  1 

tion  one  hundred  and  twenty,  the  aldermen  or  selectmen  may  grant  a  2 

written  license  for  a  term  not  exceeding  fifteen  years  to  any  inhabitant  3 

thereof  to  plant,  grow  and  dig  oysters  at  all  times  of  the  year,  or  to  plant  4 

oyster  shells  for  the  purpose  of  catching  oyster  seed,  upon  and  in  any  5 

waters,  flats  and  creeks  therein,  at  any  place  where  there  is  no  natural  6 

oyster  bed ;  not,  however,  impairing  the  private  rights  of  any  person,  nor  7 

materiallv  obstructing  any  navigable  waters.    Such  license  shall  describe  8 


Chap.  130.]  fisheries.  1337 

9  by  metes  and  bounds  the  waters,  flats  and  creeks  so  appropriated  and  |f*f'|^°" 

10  shall  be  recorded  by  the  city  or  town  clerk  before  it  shall  have  any  force,  J|||'  |P'  §  i- 

1 1  and  the  licensee  shall  pay  to  the  aldermen  or  selectmen,  to  the  use  of  R-  l'  9i. 

12  the  city  or  town,  two  dollars,  and  to  the  clerk  fifty  cents.    The  shore  i9i3.549.  ' 

13  line  of  such  licensed  premises  shall  be  the  line  of  mean  low  water  for  iss  Mass' 120' 

14  the  planting  and  growing  of  oysters,  and  the  line  of  high  water  for  the  224  Masslso?! 

15  planting  of  oyster  shells,  but  this  section  shall  not  authorize  the  placing  iop'^A^G.'lli. 

16  of  such  shells  upon  the  land  of  a  riparian  owner  between  high  and  low  p^^^^  . 

1 7  water  mark  without  his  written  consent.    Such  license  shall  not  be  granted  §§  1^2,  isa. 

18  until  after  a  public  hearing,  due  notice  of  which  shall  have  been  posted 

19  in  three  or  more  public  places  in  the  cit;j'  or  town  where  the  premises 

20  are  situated  at  least  seven  days  before  the  time  fixed  for  such  hear- 

21  iiig,  and  shall  be  granted,  assigned  or  transferred  only  to  inhabitants 

22  of  the  city  or  town  where  the  licensed  premises  are  situated,  and  shall 

23  not  be  assigned  or  transferred  without  the  written  consent  of  the  alder- 

24  men  or  selectmen.     The  licensee,  his  heirs  and  assigns  shall,  for  the  pur- 

25  poses  aforesaid,  have  the  exclusive  use  of  the  waters,  flats  and  creeks 

26  described  in  the  license  during  the  time  therein  specified;   and  may,  in 

27  tort,  recover  treble  damages  of  any  person  who,  without  his  or  their 

28  consent,  digs  or  takes  oj'sters  or  oyster  shells  from  such  waters,  flats 

29  or  creeks  during  the  continuance  of  the  license.     If  the  licensee  fails 

30  for  two  years  after  the  license  has  been  granted  to  plant  and  grow  oysters 

31  or  to  plant  oyster  shells  in  the  waters,  flats  or  creeks  described  in  the 

32  license,  it  shall  be  revoked  by  the  officers  who  granted  it  and  the  revo- 

33  cation  shall  be  recorded  by  the  city  or  town  clerk. 

1  Section  132.    No  person  shall  dig,  take  or  carry  away  any  oysters  Hours  for 

2  or  oyster  shells  between  one  hour  after  sunset  and  one  hour  before  sun-  isrsl^iToTl""' 

3  rise,  by  any  method  whatever,  from  any  waters,  flats  or  creeks  for  which  fsl4,l84!  IT' 

4  a  license  has  been  granted  under  the  preceding  section.    A  licensee  vio-  If^l'l^®' 

5  lating  said  section  shall,  in  addition  to  the  other  penalties  pro\-ided,  for-  is^^',  282  §  i 

6  feit  his  license  and  the  oysters  remaining  on  the  licensed  premises.  229  Mass.  is5.' 

1  Section  133.     ^^^loever  -v-iolates  the  preceding  section,  or  whoever.  Penalty  for 

2  without  the  consent  of  the  licensee,  digs  or  takes  any  oysters  or  oyster  fromfi°enseT 

3  shells  from  any  waters,  flats  or  creeks  described  in  any  license  granted  permllsioS"' 

4  under  section  one  hundred  and  thirty-one  diuing  the  continuance  of  p*  s^'gi^j  fo^i 

5  such  license,  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  is8|.  284, 1 1. 

6  dollars  or  by  imprisonment  for  not  less  than  one  nor  more  than  six  r.  L!9i,'§iii. 

-7  ,1  L    XL  136  Mass.  456. 

/  months,  or  both. 

1  Section  134.    'Whoever  works  a  dredge,  oyster  tongs  or  rakes,  or  any  Penalty  tor 

2  other  implement  for  the  taking  of  shellfish  of  any  description,  upon  any  etcl'.^uto'i?*''' 

3  oyster  grounds  or  beds  covered  by  a  license  imder  section  one  hundred  gej™'^  °*'*"^'' 

4  and  thirty-one,  without  the  consent  of  the  licensee,  lessee  or  owner  Jf  l'9i°§\i2 

5  thereof,  or  whoever,  while  upon  or  sailing  over  any  such  grounds  or  beds, 

6  casts,  hauls,  or  has  overboard  any  such  dredge,  tongs,  rake  or  other  im- 

7  plement  for  the  taking  of  shellfish  of  any  description,  under  any  pretence 

8  or  for  any  purpose  whatever,  without  the  consent  of  the  licensee,  lessee 

9  or  owner,  shall,  for  the  first  offence,  be  punished  by  a  fine  of  not  more 

10  than  twenty  dollars  or  by  imprisonment  for  not  more  than  one  month, 

1 1  and  for  a  subsequent  oft'ence,  by  a  fine  of  not  more  than  fifty  dollars  or 

12  by  imprisonment  for  not  more  than  six  months. 


1338 


FISHERIES. 


[Chap.  130. 


Penalty  for 
taking  shellfish 
other  than 
oysters, 
except,  etc. 
1771-2,  13,  I  3. 
1795,  71,  I  2. 

1798,  14,  I  1. 

1799,  19,  I  1. 
1808,  28. 
1830,  2. 
R.S.  S5,  §  13. 

1838,  110;  113. 

1839,  84. 

1840,  9. 
1842,  10. 

G.  S.  83,  5  13. 
P.  S.  91,  §  95. 


GENER.\L   PROVISIONS   REL.\TIVE   TO    SHELLFISH. 

Section  135.    Whoever  takes  any  shellfish,  other  than  oysters,  from  1 

their  beds,  or  destroys  them  or  wilfully  obstructs  their  growth  therein,  2 

except  as  is  provided  in  this  chapter,  shall  forfeit  one  dollar  for  every  3 

bushel  of  such  shellfish,  including  the  shells.     But  the  aldermen  of  a  4 

city  or  selectmen  of  a  town  may  at  any  time  give  a  written  permit  5 

to  any  person  to  take  such  shellfish  from  their  beds  therein,  at  such  6 

times,  in  such  quantities  and  for  such  uses  as  they  shall  express  in  their  7 

permit;  but  every  inhabitant  of  each  of  said  places  may,  without  such  8 

permit,  take  such  other  shellfish  from  the  beds  therein  for  the  use  of  9 

his  family.                        R.  l.  9i,  §  102.                           7  Met.  43s.  10 

13  Allen,  541.  155  Mass.  10.  221  Mass.  323.  224  Mass.  39. 


Indians  not 
within  pro- 
hibition of 
sections  118, 
119  and  135. 
1795,  71,  I  5. 
1798,  14,  I  2. 
R.  S.  65.  §  1,5. 
G.  S.  83,  §  15. 
1867,  70. 
1872,  40,  §  2. 


Section  136.  Sections  one  hundred  and  eighteen,  one  hundred  and 
nineteen  and  one  hundred  and  thirty-five  shall  not  deprive  native 
Indians  of  the  privilege  of  digging  shellfish  for  their  own  consumption, 
or  prevent  a  fisherman,  an  inhabitant  of  the  commonwealth,  from  tak- 
ing shellfish  which  he  may  need  for  bait,  not  exceeding  at  any  one 
time  seven  bushels,  including  the  shells. 

p.  S.  91,  §  96.  R.  L.  91,  §  103.  13  Allen,  541. 


Taking  of 

shellfish  from 

contaminated 

waters 

regulated. 

1901,  138, 

§§1,2. 

1919!  350,  §  9(i.  if  necessary,  mark  such  bounds.     It  may  also,  in  writing,  request  the 

221  Mass.  323.    (jjppp^Qp  ^q  prohibit  the  taking  from  such  contaminated  waters  and  flats 

of  any  shellfish.    Upon  receipt  of  such  request,  the  director  shall  prohibit 

the  taking  of  shellfish  from  such  contaminated  waters  or  flats  for  such 


Section  137.  The  department  of  public  health  may  examine  all 
complaints  brought  to  its  notice  relative  to  the  contamination  of  tidal 
waters  and  flats  in  the  commonwealth  by  sewage  or  other  causes,  may  de- 
termine, as  nearly  as  may  be,  the  bounds  of  such  contamination,  and. 


period  of  time  as  said  department  may  prescribe. 


Local  boards 
of  health  may 
grant  permits 
to  take  clams 
or  quahaugs 
for  bait,  etc. 
1907,  285,  §  1. 


Section  138.  When  the  director  has  so  prohibited  the  taking  from 
contaminated  waters  or  flats  in  any  city  or  town  of  any  shellfish,  the 
local  board  of  health  may  grant  written  permits  to  any  person  to  take 
from  such  waters  clams  or  quahaugs  to  be  used  for  bait  only,  and  in 
such  quantities  and  upon  such  conditions  as  it  shall  express  in  the 
permit. 


pcmntto'keep  SECTION  139.  Whocvcr  holds  a  permit  under  the  preceding  section 
"er-on^et*"  ""'^  shall  kccp  it  in  his  possession,  and  on  his  person,  Avhile  acting  there- 
igm'lss  *"  under,  and  shall  at  all  times  display  it  upon  the  request  of  any  person 
authorized  to  enforce  sections  one  hundred  and  thirty-eight  to  one  hun- 
dred and  forty-one,  inclusive.  Violation  of  this  section  shall  be  punished 
by  a  fine  of  not  less  than  ten  nor  more  than  fifty  dollars,  and  m  addition 
the  permit  shall  be  revoked  and  shall  not  thereafter  be  issued  within  one 
.vear. 


Section  140.    Whoever  violates  any  provision  of  such  permit  shall     1 


Penalty  for 
violation  of 

i9OT,'285,  §  3.  forfeit  the  permit  and  shall  be  punished  by  a  fine  of  not  more  than  one  2 
hundred  dollars  or  by  imprisonment  for  not  more  than  three  months,  3 
or  both.  4 


Chap.  130.]  fisheries.  1339 

1  Section  141.    Whoever  sells,  or  exchanges,  or  exposes  or  offers  for  Penalty  for 

2  sale  or  exchange,  or  buys  any  clams  or  quahaugs,  taken  from  waters  or  dams?etc.° 

3  flats  proscribed  as  contaminated  under  section  one  hundred  and  thirty-  ponTtedwlters. 

4  seven  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  J9J3;  ggf'  ^  *• 

5  or  by  imprisonment  for  not  more  than  three  months,  or  both. 

1  Section  142.     Whoever  not  having  a  permit  therefor  takes  any  shell-  f^a'ties  for 

-,,„  .,,  ^  Ml  •  11'  taking  oysters, 

2  fish  from  tidal  waters  or  flats  proscribed  as  contaminated  under  section  ''*'=v//°"\ 

3  one  hundred  and  thirty-seven  shall  for  the  first  offence  forfeit  not  less  waters,  etc. 

4  than  five  nor  more  than  ten  dollars  and  for  a  subsequent  offence  forfeit  r.  l!9i.§'ii4. 

5  not  less  than  fifty  nor  more  than  one  hundred  dollars;  but  such  penalties  "^  ^^'^^^'  ^'^' 

6  shall  not  be  incurred  until  one  week  after  the  director  has  caused  notice 

7  of  such  proscription,  with  a  description,  or  the  bounds,  of  the  tidal  waters 

8  or  flats  to  which  such  proscription  applies,  to  be  published  in  a  newspaper 

9  published  in  the  town  or  county  in  which  or  adjacent  to  which  the  tidal 
10  waters  or  flats  to  which  such  proscription  applies  are  situated. 

1  Section  143.     Cities  by  a  two  thirds  vote  of  the  city  council,  and  towns  may 

2  towns  by  a  two  thirds  vote  at  a  town  meeting,  may  appropriate  money  "J.^sltiora'?" 

3  for  the  cultivation,  propagation  and  protection  of  shellfish.    Tlie  alder-  ^"'^■'J*'?",',^  ^ 

4  men  or  selectmen,  when  so  authorized  by  their  respective  cities  or  towns,  way  declare 

5  may  declare  from  time  to  time  a  close  season  for  shellfish  for  not  more  etc^'^  '"='"'°"' 

6  than  three  years  in  such  waters  or  flats  within  the  limits  of  their  respective  ^^°*'  ^^'  ^  ^" 

7  cities  and  towns  as  they  deem  proper,  and  may  plant  and  grow  shellfish 

8  in  such  waters  and  flats;  provided,  that  no  private  rights  are  impaired, 

9  and  provided,  that  when  any  close  season,  declared  as  aforesaid,  shall 

10  have  ended,  the  flats  and  waters  so  closed  shall  be  opened  subject  to 

11  section  eighty-foiu-  and  any  special  laws. 

1  Section  144.     WTioever  takes  shellfish  in  violation  of  the  preceding  Penalty,  etc. 

2  section  shall  be  punished  by  a  fine  of  not  less  than  three  nor  more  than 

3  fifty  dollars.     Any  officer  qualified  to  serve  criminal  process,  and  con- 

4  stables  designated  imder  section  one  hundred  and  fifty-two,  shall,  with 

5  all  the  powers  conferred  by  said  section,  enforce  this  section. 


REGULATION   OF   FISH  WEIRS,   NETS,    PURSES   AND   SEINES. 

1  Section  145.    The  aldermen  of  a  city  and  the  selectmen  of  a  town  Town  officers 

„    ,     .  J.- J  J.  •  -J.-  J.1         •  J.  ™^y  authorize 

2  lying  upon  tide  water,  may,  m  writing,  authorize  any  person  to  con-  e^h  woirs.  etc 

3  struct  weirs,  pound  nets  or  fish  traps  in  tide  water  in  locations  not  only  p  s!'9i.'§  76. 

4  where  no  harbor  lines  exist  but  also  in  locations  beyond  established  it''L!9?^§\i6. 

5  harbor  lines,  within  the  limits  of  such  city  or  town,  for  a  term  not  exceed-  }^J^'  g-*- 

6  ing  five  years,  but  no  authority  so  given  shall  be  valid  unless  approved  i-Jjs,  27.^ 

7  in  writing  by  the  division  of  waterways  and  public  lands  of  the  depart-  §113.     ^ 

8  ment  of  public  works,  upon  such  terms  and  subject  to  such  conditions  2  bp.  a.  g.  2.5, 

9  as  it  may,  in  its  discretion,  impose.  3  Op.  a.  g.  is.         ' 

1  Section  146.     Whoever  wilfully  destroys  or  injures  any  such  w'eir.  Penalty  for 

2  pound  net  or  fish  trap,  or  takes  fish  therefrom  without  the  consent  of  the  iish'wefrs"" 

3  owner,  shall  forfeit  not  more  than  twenty  dollars  to  the  use  of  the  owner,  r  si'aT.'Ir^i. 

4  and  shall  be  liable  in  an  action  to  the  person  injured.         R.  l.  9i,  §  117. 


1340 


FISHERIES. 


[Chap.  1:3(). 


Penalty  for 
constructing 
unauthoriEed 
fish  weirs. 
1877,  119. 
P.S.  91,  §72. 
R.  L.  91,  §  118. 


Owners  of  fish 
weirs,  lobster 
pots,  etc.,  to 
make  returns. 
Lobster  cars 
to  be  marked. 
Penalty. 
1876,  104. 
1881,  28. 
P.S.  91, 
{§  73-75. 
1889,  109, 
§§  2,  3. 
1901,  290. 
R.  L.  91,  §119. 


Section  147.  Whoever  constructs  or  maintains  a  weir,  pound  net 
or  fish  trap  in  tide  water  without  the  authority  mentioned  in  section  one 
liundred  and  forty-five  and,  if  from  an  island  in  tide  water,  witliout 
written  authority  from  the  aldermen  of  every  city  and  the  selectmen 
of  every  town  which  is  distant  not  over  two  miles  from  said  island,  shall 
forfeit  ten  dollars  for  each  day  he  maintains  such  weir,  pound  net  or 
fish  trap;  and  he  may  be  enjoined  therefrom. 


Section  148.     The  owner  of   every   pound    net,  weir,  fyke  net  or  1 

similar  contrivance,  of  every  fishing  pier,  seine,  drag  or  gill  net,  lobster  2 

pot  or  trap  used  in  any  of  the  waters  of  the  commonwealth  for  fishing  .3 

purposes,  shall  annually,  on  or  before  October  twentieth,  make  a  written  4 

report,  on  oath,  to  the  director  of  the  number  of  pounds  and  the  value  5 

of  each  kind  of  edible  fish  caught  by  his  pound  net,  weir,  fyke  net  or  6 

similar  contrivance,  pier,  seine,  drag  or  gill  net,  and  the  number  and  7 

value  of  lobsters  taken  by  him  in  pots  or  traps,  during  the  year  last  8 

preceding  the  date  of  said  report,  and  the  number  and  value  of  the  de-  9 

vices  used  in  such  catching  or  taking,  and  the  number  of  persons  em-  10 

ployed  therein;  and  for  such  purpose,  the  director  shall  annually,  on  or  11 

before  ]\Iarch  fifteenth,  provide  him,  upon  his  application,  with  suitable  12 

blank  forms  for  such  reports,  so  arranged  that  each  month's  catch  may  l.j 

be  separately  recorded  thereon;    and,  in  filling  out  such  reports,  such  14 

owner  shall  give  the  results  of  each  month's  fishing,  so  far  as  practicable.  15 

Such  owner  shall  apply  to  the  director  for  such  blank  forms.    The  owner  Ifi 

of  any  cars  or  other  contrivances  used  for  keeping  lobsters  shall  have  his  17 

name  and  residence  legibly  marked  thereon.     ^Yhoeve^  knowingly  and  18 

wilfully  violates  any  provision  of  this  section  shall  be  punished  by  a  fine  of  19 

not  less  than  ten  nor  more  than  one  hundred  dollars.  20 


Penalty  for 
taking  fish, 
etc.,  from 
traps,  etc, 
1882,  53. 
R.L.  91,  §  131 


MISCELLANEOUS   PROVISIONS. 

Section  149.  Whoever  takes  any  fish  or  lobster  from  a  trap,  trawl 
or  seine  set  for  catching  fish  or  lobsters,  without  the  consent  of  the  owner 
thereof,  and  whoever  wilfully  molests  or  interferes  with  such  trap,  trawl 
or  seine,  shall,  for  the  first  offence,  be  punished  by  a  fine  of  not  less  than 
five  nor  more  than  twenty-five  dollars  or  by  imprisonment  for  one  month, 
or  both;  and  for  a  subsecpient  offence,  by  a  fine  of  not  less  than  twenty 
.  nor  more  than  fifty  dollars  or  by  imprisonment  for  two  months,  or  both. 


Penalty  for 
taking  certain 
fish  except 
with  hook  and 
line. 
1741-2, 
20,  §  1. 
1754-5,31, 
§§1,2. 
1764-5,  34, 
§§1,2, 
1822,  21. 
R.  S.  55,  §  2. 
1857,  30. 
G.  S.  S3.  §  2. 
1869,  384,  §  26. 
P.S.  91,  §48. 
R.  L.  91,§  132. 
1908,  492. 
1917,  S3. 
1919,  33. 

Additional 
penalty,  §  7G. 


Section  150.  Whoever  takes  any  fish  which  at  any  season  frequent 
fresh  water,  except  as  otherwise  allowed  in  this  chapter,  in  any  other 
manner  than  by  angling,  shall  forfeit  not  less  than  five  nor  more  than 
fifty  dollars;   but  towns  may  permit  the  use  of  nets  and  seines  for  taking 

herring  and  alewives  or  pots  for  the  taking  of  eels;   and  this  section  shall  5 

not  prohibit  spearing  eels,  carp  or  those  species  of  fish  commonly  known  6 

as  eels  and  "suckers".    The  possession  by  any  person  in  or  upon  fresh  7 

waters  or  upon  the  banks  of  the  same,  except  as  allowed  by  this  sec-  8 

tion,  of  any  net,  trap,  trawl,  or  other  device  adapted  for  taking  fish  9 

shall  be  prima  facie  evidence  of  a  violation  of  this  section.     This  section  10 

shall  not  apply  to  ponds  or  waters  now  held  under  lease  or  which  may  1 1 

hereafter  be  leased  by  the  commonwealth  or  by  the  commissioner  of  12 

conservation.  13 


poi"sonmg"fish.        SECTION  151.     Whoever  puts  or  throws  into  any  waters  for  the  pur-     1 
|830,43    ^       pQgg  of  taking  or  destroying  fish  therein  any  poisonous  substance,  simple,     2 


Chap.  130.]  fisheries.  1341 

3  mixed  or  compound,  or  whoever  kills  or  destroys  fish  by  the  use  of  dyna-  g.  s.  83,  §  i. 

4  mite  or  other  explosive,  or  explodes  dynamite  or  powder  in  fishing  waters,  r.  L.gV.I  m. 

5  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  J9?|;4|9' 

6  imprisonment  for  not  more  than  one  year.    This  section  shall  not  apply 

7  to  operations  of  the  United  States,  the  commonwealth  or  a  town,  nor 

8  to  the  use  of  explosives  for  raising  the  body  of  a  drowned  person. 

1  Section  152.    The  mayor  of  a  city  or  the  selectmen  of  a  town  may  Officers  to 

2  designate  one  or  more  constables  for  the  detection  and  prosecution  of  iss5!'22o,'  §  6. 

3  any  violation  of  the  laws  of  the  commonwealth  relative  to  shellfisheries.  ig's^Mas's^ilo.' 

4  Such  constables  may  arrest  without  a  warrant  any  person  found  violat- 

5  ing  such  laws,  and  detain  him  until  a  warrant  for  arrest  for  such  viola- 

6  tion  may  be  applied  for;  and  may  seize  any  boat  or  vessel  used  in  such 

7  violation,  and  her  tackle,  apparel,  fm'niture  and  implements,  which 

8  shall  be  forfeited. 

1  Section  153.     Actions  and  prosecutions  under  the  laws  relative  to  Prosecutions 

2  fisheries    shall,    unless    otherwise    expressly    provided,    be   commenced  chai"er'"^ 

3  within  one  year  after  the  time  when  the  cause  of  action  accrued  or  the  iglaj'xbs,  §  4. 

4  offence  was  committed.  ises,  179,  §  3.  ]869,3S4,  §  32. 

1873,  137,  §  1.  P.  S.  91,  §  103.  R.  I..  91,  §  135. 

1  Section  154.     The  aldermen,  selectmen,  police  officers  and  consta-  Town  officers 

2  bles  shall  cause  the  provisions  of  sections  sixty-seven  and  sixty-nine  tain'se'ctions.'^' 

3  to  be  enforced  in  their  respective  cities  and  towns.  is74, 153, 5  3. 

1876,  221,  §  2.  P.  S.  91,  §§  54,  60.  R.  L.  91,  §  1.36. 

1  Section  155.     A  bounty  of  two  dollars  shall  be  paid  to  every  person  Bounty 

2  killing  a  seal  in  the  ct)mmonwealth  pro\ided  that  within  ten  days  there-  CerUficate. 

3  after  he  exhibits  to  any  town  treasurer  the  whole  skin  of  the  seal,  with  the  fiss.'SsV. 

4  nose  in  the  same  condition  as  at  the  time  of  the  killing,  and  signs  and  \f^l\  gf^j  jgg 

5  makes  oath  to  a  certificate  stating  the  date  and  place  of  killing,  that  Jgjg'lo^ 

6  he  killed  the  seal  and  that  it  was  killed  in  this  commonwealth.    Tiie  treas- 

7  urer  shall  thereupon  cause  to  be  cut  off  and  burned  the  nose  of  the  seal, 

8  wholly  destroying  it,  and  shall  pay  the  said  bounty,  taking  the  claim- 

9  ant's  receipt  therefor  and  shall  then  forward  to  the  state  treasurer  the 

10  said  certificate  with  a  statement  that  he  has  paid  the  said  bounty  in 

11  accordance  herewith,  and  that  the  claimant  personally  appeared  before 

12  him  and  made  oath  as  aforesaid.    The  state  treasurer  shall  then  pay  to 

13  the  town  treasurer  the  sum  of  two  and  one  half  dollars,  of  which  sum 

14  fifty  cents  shall  be  retained  by  the  town  treasurer  as  a  fee  for  his  serv- 

15  ices  hereunder.     Whoever  obtains  tiie  bounty  herein  provided  for  by 

16  a  false  representation,  or  whoever  brings  into  the  commonwealth  a 

17  seal,  whether  alive  or  dead  which  was  not  taken  or  killed  in  this  com- 

18  monwealth  or  in  the  waters  thereof,  for  the  purpose  of  obtaining  the  said 

19  bounty,  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than 

20  fi^e  hundred  dollars. 

KELP   AND   SEAWEED. 

1  Section  156.     Any  person  may  take  and  carry  away  kelp  or  other  Keip,  etc 

2  seaweed  between  high  and  low  water  mark  while  it  is  actually  adrift  in  1859,247. 

3  tide  waters;   but  for  such  purpose  no  person  shall  enter  on  upland  or  on  p.s.'gi.'s  ioa 

4  lawfully  enclosed  flats  without  the  consent  of  the  owner  or  lawful  oecu-  2  AUeSI'slg.*"' 

5  pant  thereof.    This  section  shall  not  apply  to  any  town  where  the  sub- 

6  ject  matter  thereof  is  regulated  by  special  laws. 


1342 


PKESERVATION    OF   BIRDS   AND   .\NIMALS,    ETC.  [Cll.\P.    131. 


Special  laws 
not  repealed. 
G.  S.  83,  I  2. 
1869,  384, 
§§  7,  22,  26. 


Section  157.  Tlais  chapter  shall  not  affect  any  pro\isions  or  penalties  1 
contained  or  any  privileges  granted  in  any  special  statutes  relating  to  2 
fisheries  in  particular  places.  p.  s.  9i,  §  los.  r.  l.  qi,  §  i38.  3 


REFERENCES. 

Provisions  relating  to  fishing  licenses,  Chap.  1.31,  §§  3  to  14,  inclusive. 

Leasing  Tisbury  Great  pond,  1910,  529,  as  amended  by  1919,  39. 

Leasing  Oyster  pond,  1916,  193. 

Special  provisions  for  taking  shad  or  alewives  from  the  Connecticut  or  Merrimack 
rivers,  R.  L.  91,  §§  38  to  41,  inclusive. 

Taking  alewives  in  Dukes  county,  R.  L.  91,  §  43. 

Taking  clams  and  quahaugs  in  certain  towns  in  Barnstable  county,  1915,  128; 
as  to  other  towns,  1904,  269,  as  amended  1905,  265,  §  1. 

Taking  clams  and  quahaugs  in  Plymouth  county,  1916,  35,  and  1912,  57. 

Taking  clams  in  Essex  county,  1912,  710. 

Weirs,  nets,  etc.,  in  Buzzards  bay,  R.  L.  91,  §§  121  to  126,  inclusive. 

There  are  many  other  laws  relating  to  particular  localities. 


CHAPTER     131. 


PRESERVATION  OF  CERTAIN   BIRDS   AND  ANIMALS. 

FISHING  LICENSES. 


HUNTING  AND 


Sect. 

1.  Definitions. 

2.  Powers  and  duties  of  the  director. 

3.  Registration  of  hunters,  trappers  and 

fishermen. 

4.  Certificates,  form,  term,  etc. 

5.  Certificates  for  fishing. 

6.  Certificates  to  minors. 

7.  Certain  unnaturalized  foreign  born  per- 

sons entitled  to  certificate. 
Registration  fee  for  citizens. 
Registration  fees  for  non-residents. 
City  or  town  clerk's  fee. 

11.  Duplicate  certificate  may  be  issued. 

12.  Record  of  certificates  to  be  kept. 
Non-resident  licensees  entitled  to  carry 

game  from  the  commonwealtli. 

Penalty  for  false  representation,  etc. 

List  of  waters  stocked  by  commission  to 
be  given  clerks. 

Certain  unnaturalized  foreign  born  resi- 
dents prohibited  from  hunting,  etc. 

17.  Director  to  be  notified  of  seizure  of  fire- 

arms, etc. 

18.  Arrests. 

19.  Penalty  for  killing  mid  birds. 

20.  Protection  of  certain  wild  fowl. 

21.  Protection  of  loons  and  eagles. 

22.  Possession  of  body  or  feathers  of  birds 

penalized. 

23.  Protection  of  gray,  European  or  Hun- 

garian partridges. 

24.  Protection  of  prairie  chickens. 

25.  Protection  of  homing  pigeons. 

26.  Protection  of  upland  plover,  wood  duck, 

etc. 

27.  Protection  of  heath  hen. 


8. 


10. 


13. 


14. 
15. 


16. 


Sect. 

28.  Protection  of  heron  or  bittern. 

29.  Close   season   for   game   may   be   pro- 

claimed in  times  of  drought. 

30.  Violations  of  preceding  section  penal- 

ized. 

31.  Proclamation  to  be  published,  etc. 

32.  Sunday  to  be  close  season. 

33.  Close  season  for  woodcock  and  ruffed 

grouse. 

34.  Close  season  for  quail. 

35.  Possession  prima  facie  evidence  of  vio- 

lation. 

36.  Bag  limit  for  ruffed  grouse,  woodcock 

and  quail. 

37.  Close    season    for    swans,    ducks    and 

geese. 

38.  Bag  limit  for  black  ducks. 

39.  Close  season  for  shore  birds. 

40.  Permit  to  bring  birds  into  the  common- 

wealth. 

41.  Wild  turkeys. 

42.  Pheasants. 

43.  Open  season  for  pheasants. 

44.  Pheasant  doing  damage  may  be  killed. 

45.  Close  season,  etc.,  for  gray   squirrels. 

Bag  limit. 

46.  Hares  and  rabbits. 

47.  Hares  in  certain  counties. 

4S.  Rabliits  not  to  be  trapped,  etc. 

49.  Rabbits  may  be  trapped  by  farmers. 

50.  Penalty  for  taking,  etc.,  hares  or  ralj- 

bits. 

51.  Close    season    for    certain    fur-bearing 

animals. 

52.  Buj-ing,  selling  and  possession  of  such  ' 

animals. 


Chap.  131.1 


HUNTING,   ETC.,   LICENSES. 


1343 


Sect. 

53.  Training  dogs  by  pursuit  of  game  birds 

and  animals  in  close  season  allowed. 

54.  Restrictions  as  to  setting  traps. 

55.  Setting  traps  to  protect  farms. 

56.  Penalties. 

57.  Birds,  not  to  be  taken  by  snares,  etc. 

58.  Poison  or  wire  snares  not  to  be  used. 

59.  Certain  traps  not  to  be  used. 

60.  Traps  not  to  be  used  without  permis- 

sion of  owner  of  land. 

61.  Scented  bait  not  to  be  used. 

62.  Deer  not  to  be  killed  except  when  doing 

damage. 

Open  season  for  deer. 

Moose  not  to  be  killed. 

Dogs  chasing  deer. 

Birds  or  quadrupeds  not  to  be  killed 
with  rifle,  etc.,  in  deer  season. 

Damages  by  deer  to  be  paid  by  com- 
monwealth. 

Hunting  in  pubUc  parks  prohibited. 

Reservations  for  protection  of  birds  or 
animals. 

Close  season  on  restricted  areas. 

Regulations  for  reservations,  etc. 

Enforcement  of  regulations. 


63 
64 
65 

66, 

67, 
68, 


70. 

71. 
72. 


Sect. 

73.  Publication  of  notice  establishing  reser- 

vation, etc. 

74.  Penalty  for  hunting  on  reservation. 

75.  Possession   of   firearms   on  reservation 

prima  facie  eWdence  of  violation. 
Protection  of  birds  by  towns. 
Birds  illegally  killed  not  to  be  sent  out 

of  state. 

78.  Extermination  of  English  sparroiv. 

79.  Posting  land. 

SO.  Ownership    of    artificially     propagated 
game. 

81.  Sale  of  wild  birds  and  game  forbidden. 

82.  Rules  for  propagation  of  wild  birds  or 

game. 

83.  License  for  rearing  and   sale  of  such 

birds  and  game  for  food. 

84.  Revocation  of  licenses. 
Market  man's  license. 
Same  subject. 

87.  Licenses  revocable. 

88.  Penalties  for  breach  of  sections  81  to  86. 

89.  Museums,   etc.,   exempt   from   certain 

sections.     Application  of  certain  sec- 
tions. 

90.  Canada  lynx. 


76. 
77. 


85. 
86. 


1  Section  1.     In  this  chapter  the  following  words  shall  ha\e  the  follow-  Definitiomi. 

2  ing  meanings: 

3  "Commissioner",  the  commissioner  of  conservation. 

4  "Department",  the  department  of  conservation. 

5  "Deputy",  a  deputy  fish  and  game  warden  appointed  under  section 

6  seven  of  chapter  twenty-one. 

7  "Director",  the  director  of  the  division  of  fisheries  and  game. 

8  "Division",  the  division  of  fisheries  and  game. 

9  "Warden",  a  fish  and  game  warden  appointed  under  section  seven  of 
10  chapter  twenty-one. 

1  Section  2.     The  director,  wardens  and  deputies  shall  have  and  ex-  Powers  and 

2  ercise  the  same  powers  as  to  the  propagation,  protection  and  preserva-  the  dfrector. 

3  tion  of  birds  and  animals  which  they  have  as  to  fish,  subject,  however,  Hgs]  lei'' ^ '^^ 

4  to  the  supervision  and  control  of  the  commissioner. 

R.  L.  92.  §  19.  1919,  350,  §§  39,  43.  153  Mass.  171. 


1  Section  3.     No  person  shall,  except  as  provided  in  section  forty- 

2  four,  forty-nine,  sixty-two,  eighty-two  or  eighty-three,  during  the  open 

3  season  for  any  bird  or  quadruped  protected  under  this  chapter,  hunt, 

4  pursue,  take  or  kill  any  such  bird  or  quadruped,  or  fish,  except  as  here- 

5  inafter  provided,  in  any  of  the  inland  waters  of  the  commonwealth 

6  stocked  by  the  director  or  his  predecessors  since  January  first,  nineteen 

7  hundred  and  ten,  without  first  having  obtained  a  certificate  of  registra- 

8  tion  as  hereinafter  provided;  provided,  that  nothing  in  sections  three  to 

9  fourteen,  inclusive,  shall  be  construed  as  afi'ecting  in  any  way  the  general 

10  laws  relating  to  trespass,  or  as  authorizing  the  hunting,  pursuing,  taking, 

11  wounding  or  killing,  or  the  possession  of  birds  or  quadrupeds  contrary 

12  to  law.     But  said  sections  shall  not  prohibit  any  person  who  is  a  legal 

13  resident  of  the  commonwealth  from  hunting  on  land  owned  or  leased  by 


Registration 
of  hunters, 
trappers  and 
fishermen, 
100.5,317,  §  1. 
1907,  198, 
§§  1.  2. 

190S,  402.  §  1; 
484.  §§  1.  3. 
1909,  202, 
§1;325. 
1910,614,  §  1. 
1911.235.  §  1: 
614,  §§  1,13. 
1919,  296, 
§§  1,  14: 
350,  §  43. 

Penalty,  §  14. 


1344 


HUNTING,    ETC.,    LICENSES. 


[Chap.  1.31. 


Certificates, 

form,  term, 

etc. 

1905,  317,  §  2. 

1907,  19S, 
§§3,4. 

1908,  402,  §  2: 
484,  §  2. 
1910,614,  §  3. 
1911,  235,  §2; 
614,  §§  2.  1.3. 
1917,  26. 
1919,  296, 

§§  2,  14. 


him  or  from  fishing  in  any  inland  waters  bordered  by  such  land,  pro-  14 
vided  that  he  is  actually  domiciled  thereon,  and  that  the  land  is  used  1.5 
exclusively  for  agricultural  purposes,  and  not  for  club,  shooting  or  fish-  16 
ing  purposes.  17 

Section  4.     The  clerk  of  any  toAvn  shall,  upon  the  application  of  any  1 

person  entitled  to  receive  a  certificate  of  registration  under  any  of  the  2 

classes  hereinafter  described,  upon  payment  of  the  registration  fee  here-  3 

inafter  specified,  and  the  furnishing  of  an  affiilavit  by  any  non-resident  4 

desiring  to  be  classified  under  clauses  one,  two  and  tliree  of  section  nine,  5 

register  and  issue  to  such  person  a  certificate  in  the  form  prescribed  upon  6 

a  blank  furnished  by  the  division.    The  certificate  shall  bear  the  name,  7 

age,  occupation,  place  of  residence,  and  signature  and  identifying  de-  8 

scription  of  the  person  thus  registered,  and  shall  authorize  him  to  hunt  9 

birds,  to  hunt  and  trap  quadrupeds  and  to  fish,  subject  to  existing  laws.  10 

Said  certificate  shall  be  valid  for  use  to  and  including  the  following  11 

December  thirty-first,  shall  not  be  transferable  and  shall  be  produced  12 

for  examination  upon  the  demand  of  any  person.    Failure  or  refusal  to  1-3 

produce  said  certificate  upon  such  demand  shall  be  prima  facie  evidence  14 

of  the  violation  of  sections  three  to  fourteen,  inclusive.  15 


Certificates 
for  fishing. 
1919,  296,  §  3. 


Section  5.  Certificates  of  registration  to  fish  only  may  be  granted  1 
in  any  town  by  any  resident  thereof  designated  for  the  purpose  by  the  2 
clerk.  A  person  so  designated  shall  be  known  as  deputy  registrar  for  3 
fishing  licenses,  in  sections  three  to  fourteen,  inclusive,  called  the  deputy  4 
registrar,  and  shall  hold  office  for  the  term  of  one  year.  The  deputy  5 
registrars  may  exercise  in  their  respective  towns  all  the  powers  of  clerks  6 
in  respect  to  fishing  certificates,  and  all  the  provisions  of  sections  three  7 
to  fourteen,  inclusive,  in  relation  to  the  issue  of  such  certificates  by  clerks  8 
shall  apply  to  their  issue  by  deputy  registrars.  Upon  issuing  a  certifi-  9 
cate  e\ery  deputy  registrar  shall  forthwith  make  return  tliereof,  witli  the  10 
fee,  to  the  clerk.  11 


Certificates 
to  minors. 
1911,  235,  §  2; 
614,  §§  7,  13. 
1916,  74. 

1919,  296, 
§§8,14. 

1920,  300. 
Op.  A.  G. 
(1920)  176. 


Section  6.     No  certificate  of  registration  to  hunt  and  trap  shall  be  1 

granted  to  minors  under  fifteen,  but  any  clerk  may  issue  a  certificate  to  2 

any  minor  between  twelve  and  eighteen  who  is  a  citizen  of  the  United  3 

States  authorizing  him  to  take  wild  quadrupeds  by  trap  only,  in  con-  4 

formity  with  law.    Twenty-five  cents  shall  be  paid  to  each  clerk  for  each  5 

certificate  to  trap  issued  by  him.    The  clerk  of  any  town  may,  but  need  6 

not  as  a  matter  of  right,  issue  a  certificate  to  hunt  and  trap  to  a  minor  7 

l)etween  fifteen  and  eighteen  if  he  applies  therefor  in  writing  and  files  a  8 

statement  signed  by  his  parents  or  guardian  consenting  to  the  granting  9 

thereof,  which  shall  be  preserved  by  the  clerk.     Minors  under  eighteen  10 


and  women  shall  not  be  required  to  take  out  a  certificate  to  fish. 


11 


Certain  un- 
naturaUzeri 
foreign  born 
persons  en- 
titled to 
certificate. 
1905,  317,  §  2. 
1908,  402,  §  2. 
1910,614.  §  3. 
1911,614, 
§§  3,  13. 

Registration 
fee  for 
citizens. 
1908,484,  §  3. 


Section  7.  An  unnaturalized  foreign  born  resident  owning  real  estate 
in  the  commonwealth  assessed  for  taxation  at  not  less  than  five  hundred 
dollars  may  be  granted  a  certificate  of  registration.  He  shall  pay  for  such 
registration  a  fee  of  fifteen  dollars  to  the  clerk  of  the  town  where  he  resides, 
or  for  a  certificate  to  fish  only  a  fee  of  one  dollar  to  the  clerk  or  a  deputy 
registrar.  I9i5, 240.  1919, 296,  §§  4, 14. 


Section  8.     Every  citizen  of  the  United  States  who  has  been  a  resident     1 
of  the  commonwealth  for  six  months  next  prior  to  the  date  of  his  applica-     2 


Chap.  131.]  hunting,  etc.,  licenses.  1345 

3  tiou  shall  pay  for  such  registration  a  fee  of  one  dollar  to  the  clerk  of  the  woo,  32.5.  §  1. 

4  town  from  whom  he  procures  his  certificate,  except  that  if  he  desires  a  louieu,' 

5  certificate  to  fish  only,  he  shall  pay  for  his  registration  the  sum  of  fifty  1919, 296, 

6  cents  to  the  clerk  or  to  a  deputy  registrar.  ^^  •*■  ^*- 

1  Section  9.     Every  citizen  of  the  United  States,  not  a  resident  of  the  Registration 

2  commonwealth  or  not  ha\'ing  resided  therein  for  a  period  of  six  months  relkie°nt"°°" 

3  preceding  his  application  for  registration,  shall  pay  for  said  registration  ||°2','7.^*' 

4  a  fee  of  ten  dollars  to  the  clerk  of  the  town  from  Avhom  he  procures  his  }g°"'  f^f 

5  certificate,  except  that,  if  he  desires  a  certificate  to  fish  only,  he  shall  pav  5*  1. 13- ' 

•  1913  4  79 

6  to  the  clerk  or  a  deputy  registrar  one  dollar,  or,  if  he  comes  within  one  of  loipi  296,' 

7  the  three  following  classes  and  resides  in  a  state  extending  similar  exemp- 

8  tion  to  citizens  of  this  commonwealth,  he  shall  pay  the  fees  required  by 

9  section  eight. 

10  (1)  A  non-resident  citizen  of  the  United  States  owning  real  estate 

1 1  situated  in  the  commonwealth  assessed  for  taxation  at  &ve  himdred  dollars 

12  or  more,  or,  subject  to  section  six,  any  minor  child  of  such  non-resident. 

13  (2)  A  non-resident  citizen  of  the  United  States  who  is  a  member  of 

14  any  association  incorporated  prior  to  nineteen  himdred  and  seven  for  the 

15  purpose  of  hunting  or  fishing  upon  land  owned  by  such  corporation; 

16  provided,  that  such  corporation  owns  real  estate  in  this  commonwealth 

17  assessed  for  taxation  at  a  sum  equal  to  fi^e  hundred  dollars  for  each 

18  member  and  that  the  membership  list  of  the  association  shall  be  filed 

19  with  the  clerks  of  the  towns  where  such  real  estate  is  situated. 

20  (3)  A  non-resident  citizen  of  the  United  States  who,  on  the  written 

21  invitation  of  a  member  of  an  association  incorporated  under  the  laws  of 

22  the  commonwealth,  attends  the  meeting  of  the  association  for  the  pur- 

23  pose  of  hunting  foxes  only,  during  a  period  not  exceeding  six  days;  pro- 

24  vided,  that  the  membership  list  of  the  association  shall  be  filed  with  the 

25  clerk  of  the  town  where  the  hunt  takes  place. 

1  Section  10.     The  clerk  of  the  town  where  the  registration  is  recorded  SeSks'fee"" 

2  may  retain  fifteen  cents  from  each  such  registration  fee,  including  fees  };|og'  *f^*'  5  3- 

3  paid  to  the  deputy  registrar  imder  section  five  and  fees  for  certificates  wioieUiii. 

4  to  trap  under  section  six. 

1911.  614,  §§  6,  13.  1919.  296,  §§  7,  14.  1920,  300. 

1  Section  11.     Whoever  loses  or  by  mistake  or  accident  destroys  his  Duplicate 

2  certificate  of  registration  may,  upon  application  to  the  director  accom-  may'bTissueti. 

3  panied  by  an  affidavit  fully  setting  forth  the  circumstances  of  the  loss,  Jglg'^e'lfg 

4  receive  without  charge  a  duplicate  certificate.  I4;3o0,  §43. 

1  Section  12.     The  clerk  of  every  town  shall  record  all  registrations  Record  of 

2  in  books  kept  therefor,  including  records  of  certificates  issued  by  deputy  brkcpt""^ '" 

3  registrars  and  reported  under  section  five  and  certificates  to  trap  under  Jfio?;  j', J;  1 1; 

4  section  six,  one  coupon  of  which  shall  be  retained  by  the  clerk  or  deputy  ^"J'V""'  ^  ^• 

5  registrar  as  his  record.    The  said  books  shall  be  supplied  by  the  division,  J;/',?'!'*' 

6  shall  be  the  property  of  the  commonwealth,  shall  be  open  to  public  ii)fi.  614, 

7  inspection  during  the  usual  office  hours  of  the  clerk,  and  shall  be  subject  iiii's.'ii^,  §  1. 

8  at  all  times  to  audit  and  inspection  by  the  director,  by  the  state  auditor,  |§\o,TI;' 

9  or  by  their  agents;   and  every  such  clerk  shall,  on  the  first  Monday  f|°' ^^  ^®' '^"^ 

10  of  every  month,  pay  to  the  division  all  moneys  received  by  him  for  the  4  6p  a.  g.  152. 

11  said  registrations  issued  during  the  month  preceding,  except  the  record- 

12  ing  fee,  together  with  a  receipted  bill  for  fees  retained  under  section  ten. 


1346 


HINTING,    ETC.,    LICENSES. 


[Chap.  131. 


All  remittances  shall  be  made  by  certified  check.  United  States  post-  13 
office  money  order,  ex]3ress  money  order  or  in  lawful  money  of  the  Ignited  14 
States;  and  every  clerk  shall,  within  thirty  days  succeeding  January  first  15 
of  each  year,  return  to  the  division  all  registration  books  used  diu-ing  16 
the  year  preceding,  including  all  stubs  and  unused  and  Aoid  certificates.  17 
The  director  shall  furnish  the  state  treasurer  with  a  list  of  the  number  IS 
and  kind  of  registrations  recorded  by  each  clerk  during  the  pre\ious  19 
month.  20 


ifo°ense^'ra°-'         SECTION  13.     A  non-rcsIdent  certificate  of  registration  shall  entitle  1 

game  fronTthe    ^he  holder  thereof  to  carry  from  the  conmionwealth  into  any  state  accord-  2 

^""monweaith.  Jng  sJniilar  pri\ileges  not  more  than  ten  birds,  the  ex]:)ortation  of  which  is  3 

wiijeii;     ■    otherwise  proliibited  by  law,  and  ten  pounds  of  brook  trout  in  any  one  4 

year;  p^o^^ded,  that  he  shall  carry  them  open  to  view  for  inspection,  5 

shall  present  his  certificate  for  inspection  upon  demand,  and  shall  have  6 

informed  by  letter  or  otherwise  the  director  or  the  warden  in  whose  dis-  7 

trict  he  is  hunting  or  fisliing  as  to  the  number  and  kinds  of  such  birds  8 

and  fish.  9 


§8  10,  13. 
1919,296. 
§§  11.14; 
350,  §  43. 


Penalty  for 
false  repre- 
sentation, 
etc. 

190,5,  .317, 
§§3,6. 
1907.  198, 
§§  1,  5. 
190S,4.S4,  § 
1911,23.1, 
§3;  614. 
1912,379. 
1913,24'.), 
1919,  29t;, 
350,  J§  39,  40 
43. 

3  Op.  A.  G.  514 
Op.  A.  (1. 
(1919)  96,  lOr., 


11. 


12; 


Section  14.     Whoever  makes  a  false  representation  as  to  birthplace,  1 

requirements  for  identification,  or  of  facts  relati^■e  to  property  qualifica-  2 

tions,  or  natiu^alization,  or  otherwise  violates  any  provision  of  sections  3 

three  to  fourteen,  inclusi^•e,  or  is  in  any  way  directly  or  indirectly  a  party  4 

thereto,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  5 

fifty  dollars  or  by  imprisonment  for  not  more  than  one  month,  or  both.  6 

The  certificate  of  any  person  convicted  of  a  \'iolation  of  the  fish  and  7 

game  laws  or  of  any  pro\'ision  of  sections  three  to  fourteen,  inclusi^•e,  8 

shall  be  void,  and  shall  immediately  be  surrendered  to  the  officer  securing  9 

such  con^•iction.     The  officer  shall  forthwith  forward  the  certificate  to  10 

the  director,  who  shall  cancel  the  same  and  notify  the  clerk  issuing  the  11 

certificate  of  the  cancellation  thereof,  and  no  person  shall  be  given  a  12 

certificate  during  the  period  of  one  year  from  the  date  of  con\'iction.  13 

Any  certificate  issued  to  such  person  within  one  year  of  his  con\'iction  as  14 

aforesaid  sliall  be  Aoid,  and  shall  be  surrendered  on  demand  of  any  15 

officer  authorized  to  enforce  the  fi.sh  and  game  laws.    No  fee  received  for  16 

a  certificate  cancelled  under  this  section  shall  be  returned.  17 


Section  15.     The  director  shall  furnish  all  clerks  with  a  list  of  inland 


List  of  waters 
stocked  by 

be'eiven'°° '"  "^^'^ters  stocked  by  him  or  his  pretlecessors  with  fish  since  January  fii-st, 
igig^izqe  5  is-  ^1""^^*^^"  hundred  and  ten,  and  annually  on  or  before  January  first  a  list 
350,|§39,'40,43;  of  inland  waters  stocked  by  him  with  fish  diu-ing  the  preceding  year. 


Certain  un- 
naturalized 
foreign  born 
residents  pro- 
hibited from 
hunting,  etc. 
1915,  240, 
§  1,2. 

232U,S.  13S. 
Op.  A.  G. 
(1920)  87. 


Section  16.     No  unnaturalized  foreign  born  person  who  has  resided  1 

■ftitliin  the  commonwealth  for  ten  consecutive  days,  who  does  not  own  2 

real  estate  in  the  commonwealth  to  the  value  of  fi\-e  hundred  dollars  or  3 

more,  shall  hunt,  capture  or  kill  any  wild  bird  or  animal  of  any  descrip-  4 

tion,  excepting  in  defence  of  the  person,  and  no  such  person  shall,  within  5 

the  commonwealth,  owti  or  have  in  his  possession  or  under  his  control  6 

a  shotgun  or  rifle;  any  shotgun  or  rifle  owned  by  him  or  in  his  possession  7 

or  under  his  control  shall  be  forfeited  to  the  commtrnwealth.    \'iolations  8 

of  this  section  shall  be  punished  by  a  fine  of  fifty  dollars  or  by  imprison-  9 

ment  for  not  more  than  one  month,  or  both.  10 


Chap.  131.]  preservation  of  birds  and  animals.  1347 

1  Section  17.     Notice  of  the  seizure  of  any  firearm  owned  by  or  found  P're'^to'-  .^  ^ 

,,  .  -.  IP  •!•  ..  tobe  notined 

2  in  the  possession  or  under  the  control  or  any  person  violating  any  provision  of  seizure  ot 

3  of  the  preceding  section  shall  he  sent  to  the  director  by  the  officer  making  ims^wf  §'^3. 

4  the  seizure  immediately  after  the  guilt  of  such  person  shall  be  established  §§'39,\a'43. 

5  by  a  final  adjudication  in  any  prosecution  brought  against  him  for  such 

6  violation,  and  any  firearm  so  seized  shall  be  sold,  at  the  discretion  of  the 

7  director,  who  shall  pay  the  proceeds  to  the  commonwealth. 

1  Section  IS.     The  director,  wardens,  deputies,  members  of  the  state  Arrests. 

2  police,  and  all  other  officers  qualified  to  serve  criminal  process  shall  ion',  mV.  1 13. 

3  arrest,  without  warrant,  any  person  found  with  a  shotgun  or  rifle  in  his  Ji^Jg'  Is";  ^  *' 

4  possession  if  they  have  reason  to  believe  that  he  is  a  foreign  born  per-  ||  ^^^  *^^^ 

5  son  described  in  section  sixteen.    If  the  arrest  be  made  upon  Sunday,  W2. 

6  the  person  so  arrested  may  be  committed  for  safe  keeping  to  a  jail  or 

7  lockup  for  that  day;    but  he  shall  be  taken  before  a  magistrate  and 

8  proceeded  against  on  the  next  day;  and  any  such  officer  may,  if  he  has 

9  reason  to  believe  that  a  shotgun  or  rifle  is  being  concealed  by  a  foreign 

10  born  person  described  in  section  sixteen,  apply  to  any  court  having  juris- 

11  diction  of  the  ofi'ence,  and  the  court,  upon  receipt  of  proof,  made  by  affi- 

12  davit,  of  probable  cause  for  believing  that  there  is  such  concealment  by 

13  such  person,  shall  issue  a  search  warrant  and  cause  a  search  to  be  made 

14  in  any  place  where  such  shotgun  or  rifle  may  be  concealed;  and  to  that 

15  end  the  said  officer  may,  after  demand  and  refusal,  cause  any  building, 

16  room,  enclosure  or  car  to  be  broken  open  and  entered,  and  any  receptacle 

17  to  be  opened  and  its  contents  examinefl. 

1  Section  19.     Whoever,  except  as  provided  in   section  thirty-three,  Pmaity  for 

2  thirty-four,  thirty-seven,  thirty-nine,  forty-three,  forty-four  or  se-\^enty-  birds^  "' 

3  two,  takes  or  kills  or  has  in  his  possession  a  wild  or  undomesticated  bird  J'g'70;  304;  1 1'. 

4  except  an  English  sparrow,  crow  blackbird,  crow,  jay,  starling,  the  fol-  Jg79'|oi,\''5 

5  lowing  named  birds  of  prey,  —  sharp-shinned  hawk,  cooper's  hawk,  gos-  p  s  92,  §  e. 

6  hawk,  red-tailed  hawk,  red-shouldered  hawk,  duck  hawk,  pigeon  hawk,  isise]  arb,  §  4. 

7  barred  owl,  great  horned  owl  and  snowy  owl,  • —  and  fresh  M'ater  or  sea  loosi  2S7. 

8  fowl  not  named  in  said  sections,  or  wilfully  destroys,  disturbs  or  takes  a  \l°l]  |o°'  ^ '" 

9  nest  or  eggs  of  any  wild  or  undomesticated  bird,  except  such  as  are  not  55^39^/0 '43 

10  protected  by  this  section,  shall  be  punished  by  a  fine  of  ten  dollars  for  i9-o.  20s'. 

11  each  bird  taken,  killed  or  had  in  possession  or  for  each  nest  or  egg  dis- 

12  turbed,  destroyed  or  taken;   but  a  person  OA'er  twenty-one,  who  has  a 

13  certificate  from  the  commissioner  or  from  the  president  of  the  Boston 

14  Society  of  Natural  History  that  he  is  engaged  in  the  scientific  study  of 

15  ornithology  or  is  collecting  in  the  interests  of  a  scientific  institution,  may 

16  at  any  season  take  or  kill  a  wild  or  undomesticated  bird,  except  woodcock, 

17  ruffed  grouse  and  quail,  or  take  the  nests  or  eggs  of  such  bird;  but  this 
IS  section  shall  not  authorize  a  person  to  enter  upon  private  grounds  with- 

19  out  the  consent  of  the  owner  thereof  for  the  purpose  of  taking  nests  or 

20  eggs  or  killing  birds.    The  commissioner  or  the  president  of  said  society 

21  may  at  any  time  revoke  said  certificate.    The  provisions  of  this  section 

22  as  to  certificates  shall  not  apply  to  the  birds  mentioned  in  sections 

23  twenty-one,  twenty-three,  twenty-four,  twenty-six  and  twenty-seven. 

1  Section  20.     Wlioever,  except  as  provided  in  section  thirty-three,  protection  of 

2  thirty-four,  thirty-se^'en,  thirty-nine,  forty-three,  forty-four  or  seventy-  {Xi°' '"''^ 

3  two,  captures  or  has  in  possession  a  wild  or  unrlomesticated  bird  except  }gof'25o'  §  2 

4  those  specified  in  section  nineteen,  and  birds  not  found  wild  within  the 


1348 


PRESERVATION   OF  BIRDS   AND   ANIMALS. 


[ClL\P.    131. 


commonwealth,  shall  be  punished  by  a  fine  of  ten  dollars.    Possession  of  5 

the  wild  or  undomesticated  birds  specified  in  this  section  shall  be  prima  6 

facie  evidence  that  they  have  been  captured  and  are  held  in  possession  7 

contrary  to  law.  8 


^oma'nd""'         SECTION  21.     Whoever  hunts,  captures,  wounds  or  kills  a  loon  in  or     1 

eae'es-  upon  fresh  water,  or  an  eagle  in  any  place,  shall  be  punished  by  a  fine  of    2 

twenty  dollars.  3 


Possession  of 
body  or 
feathers  of 
birds  penalized. 

1897,  524. 

1898,  339. 

R.  L.  92,  §  8. 

1903,  329. 

1  Op.  A.  G.  478. 


Section  22.  Whoever,  except  as  pro\ided  in  section  eighty-nine, 
has  in  possession  the  body  or  feathers  of  a  bird,  the  taking  or  killing 
of  which  is  prohibited  by  section  nineteen,  whether  taken  in  tlie  com- 
monwealth or  elsewhere,  or  wears  such  feathers  for  the  purpose  of  dress 
or  ornament,  shall  be  punished  by  a  fine  of  ten  dollars;  but  this  section 
shall  not  apply  to  non-residents  of  the  commonwealth  passing  through 
it  or  temporarily  dwelling  therein. 


Protection  of 
gray,  European 
or  Hungarian 
partridees. 
1911,  19, 
§§  1.  3. 


Section  23.  No  person,  except  as  provided  in  sections  eighty-two, 
eighty-three  and  eighty-six,  shall  hunt,  pursue,  take  or  kill,  sell  or  offer 
for  sale,  or  have  in  possession  the  bird  known  as  perdix  cinerea,  com- 
monly called  Hungarian  partridge,  gray  or  European  partridge.  Viola- 
tions of  this  section  shall  be  punished  by  a  fine  of  not  more  than  fifty 
dollars  for  each  bird  or  part  thereof  in  respect  to  which  such  violation 
occurs. 


Protection 
of  prairie 
chickens. 
1906,  304. 


Section  24.  No  person  shall  buy,  sell  or  otherwise  dispose  of  or 
have  in  possession  a  prairie  chicken,  scientifically  known  as  tympanuchus 
Americanus  and  as  pedioecetes  phasianellus,  or  any  part  thereof,  when- 
ever or  wherever  taken.  Violations  of  this  section  shall  be  punished  by 
a  fine  of  twenty  dollars  for  each  bird  or  part  thereof  in  respect  to  which 
the  violation  occurs. 


Protection  of 

homing 
pigeons. 
1911,  198. 


Section  25.  No  person,  except  the  owner,  shall  catch,  detain,  shoot 
or  kill,  injure  or  in  any  way  interfere  with  a  homing  or  carrier  pigeon, 
or  remove  any  identification  mark,  band  or  other  thing  from  it.  Viola- 
tions of  this  section  shall  be  punished  by  a  fine  of  not  less  than  twenty- 
five  nor  more  than  fifty  dollars  for  each  bird  in  respect  to  which  the  Aiola- 
tion  occurs. 


Protection 

of  upland 

plovei, 

wood  duck, 

etc. 

1817,  103,  § 

1821,  10,  §  1 


Section  26.  Whoever  takes  or  kills  a  Bartramian  sandpiper,  also 
called  upland  plover,  a  wood  duck,  a  Carolina  or  mourning  do\e,  a  gull 
or  a  tern  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  tiian 
fifty  dollars  for  every  bird  so  taken  or  killed. 


1835,  136,  §  1. 
R.  S.  53,  §§  1,5. 

1849,  158,  §§  2-4. 

1850,  29B. 

G.  S.  82,  §§  5,  10. 
1809,  241),  §  4. 
1870,  3CM,  §  4. 


1877,  95,  §  3. 
1S79,  209,  §§  3,  4. 
1881,  297,  §  3. 
P.  S.  92,  §§  4,  5. 
1888,  27«, §  2. 
1901,  178. 
R.  L.  92,  §  5. 


1903,  162. 
1905,  414. 
1900,  274. 
1907,99. 

1909,  508,  §  3. 

1910,  472. 
1916,  15. 


Protection  of 
heath  hen. 
1900,  141. 
1911,  18. 
1916,  15. 


Section  27.  Whoever  takes  or  kills  a  heath  hen  shall  be  punished  by  1 
a  fine  of  not  less  than  twcnty-fi\'e  nor  more  than  one  hundred  dollars  for  2 
every  bird  so  taken  or  killed.  3 


Chap.  131.]  preservation  of  birds  .^nd  .animals.  1349 

1  Section  28.     Whoever,  except  as  provided  in  section  eighty-nine,  Protection 

2  takes  or  kills  a  heron  or  bittern,  or  has  in  possession  any  such  bird  or  part  bitter™  ""^ 

3  thereof,  whenever  or  wherever  taken,  shall  be  punished  by  a  fine  of  not  ^^'^^•^*^-- 

4  more  than  ten  dollars  for  every  bird  so  taken  or  killed,  or  bird  or  part 

5  thereof  so  had  in  possession.    Nothing  in  this  section  shall  prevent  the 

6  owner  or  keeper  of  any  trout  pond  or  trout  hatchery  from  killing  any 

7  heron  or  bittern  engaged  in  the  act  of  destroying  fish. 

1  Section  29.     Whenever,  during  an  open  season  for  the  hunting  of  Sr°game  may 

2  any  kind  of  game,  it  shall  appear  to  the  governor  that  by  reason  of  extreme  -Jf  t'J™^,"''^™'^'* 

3  drought  the  use  of  firearms  is  likclv  to  cause  forest  fires,  he  mav,  by  proc-  drought. 

.  '  ^  '  i'  '      i'    Jr  1909   422   §  1 

4  lamation,  suspend  the  open  season  and  make  it  a  close  season  for  the 

5  shooting  of  birds  and  wild  animals  of  every  kind  for  such  time  as  he  may 

6  designate,  and  may  prohibit  the  discharge  of  firearms  on  or  near  forest 

7  land  during  the  said  time. 

1  Section  30.     During  the  time  designated  as  above  by  the  governor,  violations  of 

2  all  laws  relating  to  the  close  season  shall  be  in  force,  and  whoever  violates  section'^^ 

3  any  provision  thereof  shall  be  subject  to  the  penalty  prescribed  therefor.  i9S9j'|22',  §  2. 

4  Whoever,  during  a  close  season  proclaimed  as  aforesaid,  discharges  a 

5  firearm  on  or  near  forest  land,  or  shoots  any  wild  animal  or  bird,  as  to 

6  which  there  is  no  close  season  other-s\-ise  provided  by  law,  shall  be  pmiished. 

7  by  a  fine  of  not  more  than  one  hundred  dollars. 

1  Section  31.     A  proclamation  issued  under  section  twenty-nine  shall  fjbe'"ub^'°° 

2  be  published  in  such  newspapers  and  posted  in  such  places  antl  in  such  lished,  etc. 

3  manner,  under  the  direction  of  the  department,  as  the  governor  may  i9i9[  350,'  §  39. 

4  order. 


1  Section  32.     Sunday  shall  be  close  season.    No  person  shall  set  traps,  Sunday  to  be 

2  hunt  or  destroy  birds,  wild  animals  or  game  of  any  kind  on  Sunday,  isll,  m°°' 

3  except  that  animals  caught  in  traps  may  be  removed  provided  said  traps  ^04!  1*76.^  ^' 

4  are  not  reset  or  baited.    Whoever  violates  this  section  shall  be  punished  i9is,53. 

5  by  a  fine  of  not  less  than  ten  nor  more  than  twenty  dollars  in  addition  to 

6  any  penalties  for  taking,  killing  or  having  in  possession  birds,  wild  animals 

7  or  game  protected  by  law. 

1  Section  33.     Except  as  pro\-ided  in  section  fifty-three,  no  person,  close  seaBon 

2  except  between  the  twentieth  of  October  and  the  twentieth  of  November,  and^rufled"^ 

3  both  inclusive,  shall  hunt,  pursue,  take  or  kill  a  ruffed  grouse,  commonly  i8°i7rio3,  §  1. 

4  called  partridge,  or  a  woodcock,  or  have  the  same,  or  any  part  thereof,  fs'J'.^ilsf  §'2. 

5  in  possession,  whenever  or  wherever  the  same  may  have  been  taken  or  J|50'  296.    ^ 

6  killed;   and  no  person,  except  as  pro\-ided  in  section  thirteen,  shall  at  g. s.'s2  §1. 

7  any  time  transport  or  cause  to  be  transported  out  of  the  commonwealth  ises!  126! 

8  the  above  named  birds,  or  have  in  possession  any  such  bird  ^-ith  intent  is-b!  304]  §  i. 

9  so  to  do.         1S74,  77,  5  1.  1877,  95,  §  1.  1879,  209,  §  1. 

1881,  297,  §  1.  1S9S.  195.  1912,  203. 

P.  S.  92.  §§  1,2.  1900,379,  §§  1,2,  S.  1917,  170,  §  1. 

1886,  270,  §§1,3.  R.  L.  92,  §§  2,  21.  1919,  153,  §  1. 

1888,  292.  1903,  206.  128  Mass.  410. 

1890,  240,  §  12.  1908,  441,  §§  1,4.  Op.  A.  G.  (1920)  107. 

1891,  142.  1909,  272. 

1893, 189.  1910,  30.5.  Penalty,  §  34. 

1894,  205.  1911,  236,  §§  1,  2. 

1  Section  34.     Except  as  pro\4ded  in  section  fifty-three,  no  person,  Close  season 

2  except  between  the  twentieth  of  October  and  the  twentieth  of  November,  isu^ios,  §  i. 

3  both  inclusive,  shall  hunt,  pursue,  take  or  kill  a  quail,  or  have  the  same  fsss,  i97,\^i. 


1350 


PRESERVATION   OF   BIRDS   AND   ANIMALS. 


[Chap.  131. 


G.S. 
1865, 
1867, 
1868, 
1869, 
1871, 
1879, 
1S81, 
P.  S. 
1886, 
§§1, 
1888, 
1890, 
1893, 
1894, 
1S98, 


82.  §  1. 

158. 

257. 
.126. 

246,  §  2. 

260. 
,  209,  §  1. 

297,  §  1. 
92,  §  1. 
,276, 
3. 

292. 
,  249,  §  1. 

189;  398. 
,205. 

195. 


or  any  part  thereof  in  possession,  except  as  pro\-ided  in  section  eighty-  4 
two,  eighty-tliree  or  eighty-six;  and  no  person,  except  as  pro\'ided  in  5 
section  thirteen,  shall  at  any  time  transport  or  cause  to  be  transported  6 
out  of  the  commonwealth  a  cjuail  taken  or  killed  within  the  common-  7 
wealth,  or  have  in  possession  quail  with  intent  so  to  do,  except  quail  arti-  8 
ficially  propagated  as  provided  in  section  eighty-two  or  eighty-three.  9 
Whoever  violates  this  or  the  preceding  section  shall  be  punished  by  a  10 
fine  of  twenty  dollars  for  each  bird  or  part  thereof  in  respect  to  which  11 
the  violation  occurs.  i9oo,  379,  §§3,5.  r.  l.  92,  §§  2, 3, 21.  12 


1902.  165. 

1903,  206. 

1905,  406. 

1906,  303. 
1908,  441, 


i  1.3,4. 


1909,  272. 

1910,  365. 

1911,  356,  |§  1,  4,  5. 

1912,  270. 
1917,  170,  §  2. 


1919,  153,  §  2. 
128  Mass.  410. 
161  U.  .S.  519. 
Op.  A.  G.  (1920)  107 


Possession 
prima  facie 
evidence  of 
violation. 
1906,  303,  §  3. 
1908,  441, 
§§3,4. 

1911,  236,  5§  2, 
3;  356,  §§4.5. 


Section  35.  The  possession  contrary  to  either  of  the  two  preced- 
ing sections  of  ruffed  grouse,  woodcock  or  cjuail  during  the  season  when 
taking  or  killing  is  prohibited  by  law  shall  be  prima  facie  evidence  that 
the  person  having  possession  has  violated  some  provision  of  the  two 
preceding  sections. 


Bag  limit  for 
ruffed  grouse, 
woodcock  and 
quail. 
1912,  523, 
§§1.2. 


Section  36.     No  person  shall  take  or  kill  more  than  three  ruffed  1 

grouse  in  one  day,  or  more  than  fifteen  in  one  year;  more  than  four  wood-  2 

cock  or  quail  in  one  day,  or  more  than  twenty  in  one  year,    ^'iolations  of  3 

this  section  shall  be  punished  by  a  fine  of  twenty  dollars  for  each  bird  4 

in  respect  to  which  the  violation  occurs.  5 


Close  season 
for  swans,  ducks 
and  geese. 
1830,  69. 
R.  S.  63,  §  1. 
1837,  170.  §  1. 
1844,  156,  §  1. 
G.  S.  82,  §  6. 

1869,  246,  §  3. 

1870,  304, 
§§2,3. 
1875,  172. 
1877,  95, 
§§2,7. 
1879,  209, 
§§2,9. 
1881,  297, 
§§  1.  2. 


Section  37.     Whoever,  except  as  provided  in  sections  forty  and  eighty-  1 

nine,  kills  a  swan  at  any  time,  or  pursues,  hunts,  takes  or  kills  any  other  2 

of  the  anatidse,  commonly  known  as  wild  geese,  brant,  ducks  and  teal,  3 

between  January  sixteenth  and  September  thirtieth,  both  inclusive,  in  4 

Barnstable,  Bristol,  Dukes  or  Nantucket  county,  or  between  December  5 

thirty-first  and  September  fifteenth  in  any  other  county,  or  buys,  sells,  6 

offers  for  sale  or  has  in  possession  any  such  bird  or  part  thereof  during  7 

the  time  when  the  taking  or  killing  of  them  is  prohibited  by  law,  when-  8 

ever  or  wherever  said  birds  may  be  taken  or  killed,  shall  be  punished  by  9 

a  fine  of  not  less  than  twenty  dollars.  10 


P.  S.92,  §§  1,3. 

1886,  276,  §§  1,  3. 
1888,  292. 

1890,  249,  I  1. 

1891,  142. 


1893,189;  398. 
1894,  205. 
1S98,  195. 
1900,  379,  §§  4,  5. 
R.  L.  92,  §  4. 


1906,  301,  §§  1-3. 
1909,421,  §§  1,4. 
•  1917,  73,  §  1. 
128  Mass.  410. 


Bag  limit 
for  black 
ducks. 
1911,  188. 


Section  38.     No  person  shall  take  or  kill  more  than  fifteen  black  1 

ducks  in  one  day.    Violations  of  this  section  shall  be  punished  by  a  fine  2 

of  not  less  than  twenty  dollars  for  each  bird  in  respect  to  which  the  3 

violation  occurs.  4 


Close  season 
for  shore  birds. 
1817,  103,  §  1. 
1821,  10,  §  1. 
1835,  136,  §  1. 
R.  S.  53, 
§§1,5. 

1849,  158, 
§§  2-4. 

1850,  290. 
G.  S.  82, 
§§  5,  10. 
1867,  257. 
1869,  246,  §  4. 


Section  39.     Whoever,   except  as  provided  in   sections  forty  and  1 

eighty-nine,  takes,  kills  or  pursues  with  intent  to  kill,  or  has  in  possession  2 

any   of  the  limicolce,  known  as  peeps,  plover,  snipe  or  sandpipers,  or  3 

any  of  the  rallidie  known  as  rails,  gallinules  and  quarks  or  mud  hens,  all  4 

of  which  birds  are  known  collectively  as  shore,  marsh  or  beach  birds,  5 

between  December  thirty-first  and  August  first,  or  a  piping  plover  or  a  6 

kildeer  plover  at  any  time  shall  be  punished  by  a  fine  of  not  less  than  7 

twenty  dollars.  isvo,  304,  §  4.  8 


1877,  95,  §  3. 
1879,  209,  §§  3,  4. 
ISSl,  297,  I  3. 


P.  .S.  92,  §  4. 
R.  I,.  92,  §  5. 
1903,  162. 


1905,  414. 

1907,  99. 

1909,  508,  §1  1,  3,  4. 


Chap.  131.]  preservation  of  birds  and  animals.  1351 

1  Section  40.     Any  resident  of  the  commonwealth  may  apply  to  the  Permit  to 

2  director  for  a  permit  to  bring  into  the  commonwealth  any  of  the  species  intSlhc'^com- 

3  of  birds  named  in  sections  tliirty-seven  and  thirty-nine,  during  the  close  5'909*42'i',''§  2; 

4  season  above  provided,  to  a  number  not  exceeding  fifty  birds  in  one  J^gigfg^,-,, 

5  year,  and  the  director  may  grant  such  permits  upon  such  conditions  §'§39, 4o,'43. 

6  and  for  such  terms  as  he  may  deem  expedient,  and  he  may  suspend  or 

7  revoke  a  permit  so  granted. 

1  Section  41.     Whoever  imports  into  or  liberates  within  the  common-  wiid  turkeys. 

2  wealth  aiiy  wild  turkey  infected  with  the  disease  termed  coccidiosis  or  §§  2,'3.   ' 

3  entero-nepatitis,  commonly  known  as  "  black  head",  or  imports  any  living  §§'^|9,^|o;43. 

4  wild  turkey  except  under  a  special  written  permit  from  the  director  shall 

5  be  punished  by  a  fine  of  twenty  dollars. 

1  Section  42.     No  person  shall  hunt,  pursue,  take  or  kill,  sell  or  offer  Pheasants. 

2  for  sale,  or  have  in  possession,  a  pheasant  of  any  kind,  or  the  flesh  of  any  1900!  64! 

3  pheasant,  except  as  provided  in  the  two  following  sections  or  in  section  JlosiTl,  ^  '*'' 

4  fifty-three,  eighty-three  or  eighty-five.     Whoever  violates  tliis  section  JgoH^f; 

5  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  for  each  bird  or  §§  !•  3.  ■»• 

6  part  thereof  in  respect  to  which  the  violation  occurs.      1909,309,  §§  1,3,4. 

1  Section  43.     The   commissioner  may   declare   an   open   season   on  Open  season 

.  ,  ,  1     •      I  1  1    for  pheasants. 

2  pheasants  m  any  county  where  such  open  season  seems  advisable,  and  loos,  477,  §  2. 

3  may  make  such  rules  and  regulations  relating  to  bag  limit,  time  and  §'§2,' 4.  ' 

4  length  of  open  season  and  varieties  to  be  taken,  and  all  other  matters  §'"|;|'^''' 

5  connected  with  such  open  season  as  he  may  deem  necessary  or  expedient;  jfY'a"'' 

6  provided,  that  any  person  may  hunt,  pursue,  take  or  kill  pheasants  ||'|^_^|o' 

7  artificially  propagated  under  section  eighty-two  or  eighty-three  on  land 

8  owned  or  leased  by  him.    Whoever  violates  any  such  rule  or  regulation 

9  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  for  each  bird 
10  or  part  thereof  in  respect  to  which  the  violation  occurs. 

1  Section  44.     A  person  may  capture,  pursue,  wound  or  kill,  upon  land  ^0^^^  ^"'^^^^5 

2  owned  or  occupied  by  him,  a  pheasant  which  he  finds  in  the  act  of  doing  JJf^^ ''/gj'"'^- 

3  damage  to  any  crop  on  cultivated  land  or  may  authorize  a  member  of  §|  2,' 3. 

4  his  family  or  person  permanently  employetl  by  him  on  such  land  so  to  do.  §'§  39, 40.' 

5  The  person  by  whom  or  under  whose  direction  a  pheasant  is  so  captured, 

6  wounded  or  killed  shall  within  twenty-four  hours  make  a  written  report 

7  to  the  director,  stating  the  time,  place  and  the  number  of  pheasants  so 

8  captured,  wounded  or  killed.    Failure  to  make  such  report  shall  be  pun- 

9  ished  by  a  fine  of  not  more  than  fifty  dollars. 

1  Section  45.     Whoever,  except  between  October  twentieth  and  No-  ciose^season, 

2  vember  twentieth,  both  inclusive,  hunts,  takes  or  kills  a  gray  squirrel,  squirrels. 

3  or  takes  or  kills  at  any  time  a  gray  squirrel  by  means  of  a  trap,  net  or  is-g.'m  5  8. 

4  snare,  or  for  the  purpose  of  killing  a  gray  squirrel  constructs  or  sets  a  fsse.^re! §5. 

5  trap,  snare  or  net  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  }9oi;^o2. 

C)  more  than  twenty-five  dollars.     This  section  shall  not  apply   to  the  '/,Jo^- ^jr^^  "• 

7  owner  or  occupant  of  any  dwelling  house  or  other  building  finding  any  ifioo' 4B6' §  2. 

8  gray  squirrel  doing  substantial  damage  to  the  same,  or  to  any  fruit  tree,  191 1',  172. 

9  grain  or  other  growing  cultivated  crop.     Whoever  takes  or  kills  more  iglilMo. 

10  than  five  gray  squirrels  in  one  day  or  more  than  fifteen  in  one  year  shall  J^JJ'  J™;  |  f 

11  be  punished  by  a  fine  of  twenty  dollars  for  each  squirrel  so  taken  or  killed. 


1352 


PRESERVATION   OF   BIRDS   AND   ANIMALS. 


[Chap.  131. 


Hares  and 
rabbits. 
1879,  209,  §  8 
P.  S.  92.  §  9. 
1888,  276,  §  5 
1894,  97. 
1901,  102. 
R.  L.  92,  §  9. 
1907,  166. 
1908,413. 
1909,  466, 
§§1,2. 
1911,  118, 
§§1,4. 
1914,  120. 
1917,  170,  §  4 
196. 

1919,  1.53,  §  4 

1920,  425, 
§5  1,  3,  5. 


Section  40.  No  person,  except  as  provided  in  sections  forty-nine,  1 
fifty-tliree  and  eigiity-two  to  eighty-eight,  inchisive,  shall  hunt,  take,  2 
kill  or  have  in  possession  a  hare  or  rabbit  except  between  October  .3 
twentieth  and  January  thirty-first,  both  dates  inclusive,  or  diu-ing  4 
the  open  season  take  or  kill  more  than  two  northern  varying  hares,  5 
otherwise  known  as  Canada  hares,  snow-shoe  rabbits  or  white  rabbits,  6 
or  more  than  five  rabbits  in  any  one  day,  or  have  in  possession  more  7 
than  two  of  the  said  hares  or  five  of  the  said  rabbits  taken  or  killed  in  8 
any  one  day;  nor  shall  any  person  at  any  time  buy,  sell,  offer  for  sale  or  9 
have  in  possession  for  the  purpose  of  sale  a  hare  or  rabbit  taken  or  killed  10 
in  this  commonwealth,  but  during  the  open  season  in  tliis  common-  11 
wealth  hares  or  rabbits  lawfully  taken  without  the  commonwealth  may  12 
be  sold;  provided,  that  the  sale  thereof  is  lawful  in  the  state  or  country  13 
in  which  they  were  taken.  This  section  shall  not  apply  to  European  hares  14 
in  the  county  of  Berkshire  which  may  be  taken  or  killed  at  any  time.  15 


Hares 
in  certain 
countiea. 
1920,  425, 
§§  2,  5. 


Section  47.  In  Barnstable,  Dukes,  Nantucket  and  Norfolk  coun- 
ties, hares  may  not  be  taken,  killed  or  had  in  po.ssession  except  as 
provided  in  sections  forty-nine  and  eighty-two  to  eighty-eight,  inclusive, 
till  April  twentieth,  nineteen  hundred  and  twenty-three,  except  that 
they  may  be  had  in  possession  in  such  counties  if  they  were  taken  or 
killed  in  another  state  or  country  without  violating  the  laws  thereof. 


Rabbits  not 
to  be  trapped, 
etc. 

1874,  57. 
1879,  209,  §  6. 
1881,  297,  §  4. 
P.  S.  92,  §  7. 
1886,  276,  §  6. 
1891,  254. 
1898,  124. 
R.  L.  92.  §  11. 
1906,  241, 

1909,  328. 

1910,  533. 
§§  2,  4,  5. 

1911,  118, 
§§  2,4.5. 

1919,  S3. 

1920,  425,  §  4. 


Section  48.  No  person  shall  remove  or  attempt  to  remove  a  hare  1 
or  a  rabbit  from  any  hole  in  the  ground,  stone  wall,  from  under  any  ledge,  2 
stone,  log  or  tree,  and,  except  as  provided  in  the  following  section,  3 
no  person  shall  take  or  kill  a  hare  or  a  rabbit  by  a  trap,  snare  or  4 
net,  or  for  that  purpose  construct  or  set  a  trap,  snare  or  net,  or  use  a  5 
ferret.  The  possession  of  a  ferret  in  a  place  where  hares  or  rabbits  might  6 
be  taken  or  killed  shall  be  prima  facie  evidence  that  the  person  ha^■ing  7 
the  ferret  in  possession  has  used  it  for  taking  and  killing  hares  or  rab-  8 
bits  contrary  to  law.  Ferrets  used  in  violation  hereof  shall  be  confis-  9 
cated.  Whoever,  except  as  provided  in  section  fifty,  violates  tliis  section  10 
shall  be  punished  by  a  fine  of  not  less  than  five  nor  more  than  fifty  dollars.  11 


bj'tra*^  ed^by        Section  49.     The  tliTce  preceding  sections  shall  not  be  construed  to 

i^'i^'^^nn  prohibit  farmers  and  fruit  growers  from  trapping  rabbits  in  box  traps  at 

i9oo',  379',  §  1.    any  time  during  the  year;  provided,  first,  that  such  trapping  is  done  on 

R.  l!  92,  §  12.    land  owned  or  leased  by  the  person  setting  the  trap  and  used  for  the  raising 

i9io!633;         of  fruit,  vegetables  or  other  products  by  the  person  so  trapping;  second, 

19U,  us,  §  3     that  the  person  so  trapping  shall  first  have  made  an  affida\'it  before  a  jus- 

1919,  350,  §  43.  i[(.Q  of  the  peace  that  hares  or  rabbits  have  injured  fruit,  ^'egetables  or 

other  products  on  his  said  premises  and  shall  have  forwarded  the  affida\it 

so  made  to  the  director;  and  tliird,  that  the  said  director  has  issued  to 

him  a  permit  so  to  trap.    No  person  shall  barter  or  sell  hares  or  rabbits 

trapped  in  accordance  here\nth.     Wioever  violates  this  section  shall  be 

punished  by  a  fine  of  not  more  than  ten  dollars. 


1 
2 

3 
4 
5 
6 

7 

8 

9 

10 

11 

12 


Penalty  for 
taking,  etc., 
hares  or 
rabbits. 
1.874,  57. 
1879,  209, 
§§  6,  8. 


Section  50.    Wlioever  takes,  kills  or  has  in  possession  a  hare  or  rab-  1 

bit  contrary  to  any  provision  of  section  forty-six,  forty-seven  or  forty-  2 

eight  shall  be  punished  by  a  fine  of  not  more  than  twenty  dollars  for  3 

every  animal  so  taken,  killed  or  had  in  possession.  4 


P.  s. 

92,  §§  7,  9. 

1894, 

97. 

1886, 

,276,  §§5,6. 

1901, 

102. 

1S91, 

254. 

R.  L. 

92, 

(9,  11. 


1906,  241. 

1907,  1611. 

1909,  328;  466,  §§  2,  3. 


1910,  533,  §§  4.  5. 

1911,  lis,  §§  4,  5. 
1920,  425,  I  4. 


ClL-VP.    131.]  PRESERVATION   OF   BIRDS    AND   ANIMALS.  1353 

1  Section  51.     Except  in  Dukes  and  Nantucket  counties,  no  person  ciose  season 

2  .shall,  except  as  provided  in  the  two  following  sections  and  in  sections  fur-beaHng 
•3  eighty-one  to  eighty-eight,  inclusive,  hunt,  take  or  kill  or  have  in  pos-  iSlg'^'ge,  §  i. 

4  session  the  living  or  dead  bodies  or  parts  thereof  of  minks,  otters,  musk-  JFf'o^J' 

5  rats,  skunks  or  raccoons  except  between  November  first  and  March  first, 

6  both  dates  inclusive,  by  shooting  or  trapping,  provided  that  muskrats 

7  may  also  be  so  taken  in  April  and  raccoons  may  also  be  taken  with  the 

8  aid  or  by  the  use  of  dogs  or  guns  in  October,  but  not  more  than  twenty- 

9  five  raccoons  shall  be  taken  by  one  person  in  one  season. 

1  Section  52.    The  bodies  or  skins  of  such  animals  which  have  been  Buj-ing, 

2  legally  taken  or  legally  propagated  in  the  commonwealth  or  legally  taken  posLe?sL"n  of 

3  and  transported  from  any  other  state  or  country  which  does  not  prohibit  i92o,''437l''§\ 

4  their  sale  or  export  may  be  bought,  sold  or  had  in  possession  at  all  times. 

1  Section  53.    For  the  purpose  of  training  hunting  dogs  which  are  duly  Training  dogs 

2  licensed,  no  person  duly  licensed  to  hunt  or  trap  shall  be  deemed  guilty  of  gan'e  bir'il"^ 

3  a  violation  of  the  game  laws  forbidding  the  hunting  or  pursuing  of  wild  fn  eio"™'''^ 

4  birds  or  wild  quadrupeds  by  reason  of  the  fact  that  he  trains  said  dogs  on  |ffJ;°.J|j 

5  said  birds  and  quachupeds  between  September  first  and  March  first,  both  i92o,  437,  §  e. 

6  dates  inclusive;  provided,  that  no  birds  or  animals  protected  by  law  are 

7  killed  or  injm'cd  and  that  no  firearm  is  had  in  possession  by  any  person 

8  so  training  dogs  or  by  any  person  accompanying  him. 

1  Section  54.     No  person  shall  set  or  maintain  any  trap  on  the  im-  Restrictions 

2  proved  land  of  another,  or  on  land  posted  as  proA'ided  in  section  seventy-  t^apl*""'"^ 

3  nine,  ^^■ithout  the  written  consent  of  the  owner  or  occupant,  nor  shall  ^^"°'  *^^'  ^  ^• 

4  any  trap  be  placed  in  a  public  \\ay,  cart  road  or  path  commonly  used 

5  as  a  passageway  for  human  beings  or  domestic  animals.    No  trap  shall 

6  be  placed  within  ten  feet  of  a  muskrat  house,  nor  shall  a  muskrat  house 

7  be  torn  open,  disturbed  or  destroyed.     Every  trap  shall  be  marked 

8  with  the  name  of  the  owner  in  such  a  manner  that  it  shall  be  legible  at 

9  all  times.      All  traps  shall  be  removed  at  the  close  of  the  open  season 

10  on  fur-bearing  animals  provided  in  section  fifty-one.     Any  trap  set  in 

1 1  \iolation  of  law  shall  be  confiscated  by  any  officer  empowered  to  enforce 

12  the  fish  and  game  laws  and  shall  be  declared  forfeited  and  sold  by 

13  the  director,  or  at  his  order,  and  the  proceeds  shall  be  paid  to  the 

14  commonwealth. 

1  Section  55.    Owners  of  property,  wliich  has  been  damaged  or  injured  foprofecr"^ 

2  or  which  the  owners  reasonably  belie\e  is  likely  to  be  injured  by  any  jgog^^j^  .  ^ 

3  wild  quadruped,  except  deer,  may,  at  any  time  and  in  such  manner  as 

4  may  be  necessary  to  protect  said  property  from  said  animals,  place  traps 

5  of  the  size  and  kind  not  forbidtlen  by  section  fifty-nine  on  the  said  land, 

6  provided  that  the  carcasses  and  skins  of  all  animals  so  taken  during 

7  other  than  the  open  season  shall  not  be  sold. 

1  Section  56.     Violation  of  any  provision  of  sections  fifty-one  to  fifty-  Penalties. 

2  five,  inclusive,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  1920]  437, 

3  than  one  hmidred  dollars,  in  addition  to  any  other  penalty  or  forfeiture  ^*  '^'  ^' 

4  which  may  be  imposed  for  taking,  killing  or  ha\'ing  in  possession  any 

5  birds  or  animals  at  times  or  bv  means  contrarv  to  law. 


1354 


PRESERVATION    OF   BmDS   AND   ANIMALS. 


[Chap.  1.31. 


Birds,  not  to 
be  taken  by 
snares,  etc, 
1835,  136,  §  2. 
R.  S.  63,  §  6. 
1855,  197,  §  2. 
G.  S.  82, 
§§2,11. 
1870,  304,  §  6. 
1877,  95.  §  5. 
1879,  209,  §  6. 
1881.  297,  §  4. 
P.  S.  92,  §  7. 
1886,  276.  §  6. 

1891,  254. 

1892,  102.  §  2. 
1897,  184. 
1901,  174. 

R.  L.  92.  I  11. 
1906,  241. 


Section  57.  Wlioever  takes  or  kills  a  wikl  bird  or  water  fowl,  for  1 
^vhich  a  close  season  is  provided,  by  means  of  a  trap,  net  or  snare,  or,  for  2 
the  purpose  of  killing  a  wild  bird  or  water  fowl,  so  protected  by  law,  .3 
constructs  or  sets  a  trap,  net  or  snare,  or  pursues,  shoots  at  or  kills  any  4 
wild  fowl,  or  any  of  the  so  called  shore,  marsh  and  beach  birds,  with  a  5 
swivel  or  pivot  gun,  or  by  the  use  of  a  torch,  jack  or  artificial  light,  or  6 
by  the  aid  or  use  of  any  ^'chicle,  boat  or  floating  de\ice  propelled  by  7 
steam,  naphtha,  gasoline,  electricity,  compressed  air,  or  similar  motive  8 
power,  or  mechanical  means  other  than  sails,  oars  or  paddles,  except  9 
such  boats  or  floating  de\'ices  Avhen  at  anchor,  shall  be  punished  by  a  fine  10 
of  not  less  than  five  nor  more  than  fifty  dollars.  i909, 328.  1 1 

1,  4. 


1910,  533, 

1911,  101. 


1916,  110. 
1919,  65;  83. 


1920,  437. 

3  Op.  A.  G.  189. 


Poison  or  wire 
snares  not  to 
be  used. 
1913,626,  §  1. 


Section  58.     Whoe\er  places  poison  in  any   form   whatsoever   for  1 

the  purpose  of  killing  any  animal,  or  constructs,  erects,  sets,  repairs  or  2 

tends  any  wire  snare  for  the  purpose  of  catching  or  killing  any  animal,  3 

shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars;   pro-  4 

vided,  that  this  section  shall  not  prohibit  any  person  from  placing  in  or  5 

near  his  house,  barns  or  fields  poison  intended  to  destroy  rats,  woodchucks  6 

or  other  pests  of  a  like  nature,  or  insects  of  any  kind.  7 


Certain  traps 
not  to  be  used. 
1913.  626,  §  2. 


Section  59.     Whoever  sets,  places,  maintains  or  tends  a  steel  trap  1 

with  a  spread  of  more  than  six  inches,  or  a  steel  trap  with  teeth  jaws,  or  2 

a  "stop-thief"  or  choke  trap  with  an  opening  of  more  than  six  inches,  3 

shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars.  4 


Traps  not  to 

be  used  witli- 

out  permission 

of  owner  of 

land. 

1913,  626,  5  3. 


Section  60.     Whoever  sets,  maintains  or  tends  a  steel  trap  on  enclosed  1 

land  of  another,  without  the  written  consent  of  the  owner  thereof,  or  2 

whoever  fails  to  visit  at  least  once  in  twenty-four  hours  a  trap  set  or  main-  3 

tained  by  him  shall  be  punished  by  a  fine  of  not  more  than  twenty  dollars.  -4 


Scented  bait 
not  to  be 
used. 
1911,  215. 


Section  61.  Whoever  sets,  places  or  locates  a  trap  or  snare  of  any 
kind  with  scent  or  scented  bait  upon  or  near  the  premises  of  another, 
without  the  consent  of  the  owner  or  occupant  of  said  premises,  shall  be 
punished  by  a  fine  of  not  more  than  fifty  dollars  or  by  imprisonment  for 
not  more  than  one  month,  or  both. 


Deer  not  to 
be  killed 
except  when 
doing  damage. 
1898,  151. 
R.  L.  92,  §  17. 
1903,  245. 
1905,419. 

1907,  307. 

1908.  377. 
190'J,  396. 
1910,545, 
§§  1.4,5. 
1913,  529. 
§§  1.4,5. 
1914.453. 
1919,  350, 

§§  39,  40,  43. 

lOp.A.G. 

523. 

4  Op.  A.  G. 

512. 


Section  62.  Whoever,  except  as  provided  in  tliis  and  the  following  1 
section,  hunts,  pursues,  wounds  or  kills  a  deer,  or  sells  or  offers  for  sale,  or  2 
has  in  possession  for  the  purpose  of  sale,  a  deer  or  the  flesh  of  a  deer  cap-  3 
tured  or  killed  in  the  commonwealth  shall  be  punished  by  a  fine  of  not  4 
more  than  one  hundred  dollars;  provided,  that  this  section  shall  not  5 
apply  to  a  tame  deer  belonging  to  any  person  and  kept  on  his  own  prem-  G 
ises;  and  provided,  further,  that  any  farmer  or  other  person  may,  on  land  7 
owned  or  occupied  by  him,  or,  witli  the  consent  of  the  owner,  upon  land  8 
adjacent  thereto,  pursue,  wound  or  kill  any  deer  which  he  has  reasonable  9 
cause  to  believe  has  damaged  or  is  about  to  damage  crops,  fruit  or  or-  10 
namental  trees,  except  grass  growing  on  unculti\'ated  land;  and  he  may  11 
autliorize  any  member  of  his  family,  or  any  person  employed  by  him  so  12 
to  pursue,  wound  or  kill  a  deer  under  the  circumstances  abo\'e  specified.  13 
In  the  event  of  the  wounding  or  killing  of  a  deer  as  aforesaid,  the  person  14 
by  whom  or  under  whose  direction  the  deer  was  wounded  or  killed  shall,  15 
within  twenty-four  hours  thereafter,  send  to  the  director  a  written  report,  16 


Chap.  131.]  preservation  of  birds  and  anim.^ls.  1355 

17  signed  by  him,  of  the  facts  relative  to  the  said  wounding  or  killing,  includ- 

18  ing  the  time  and  place  thereof,  and  the  kind  of  tree  or  crop  injured  or 

19  destroyed,  or  about  to  be  injured  or  destroyed,  by  the  deer.    Whoever 

20  sells  or  offers  for  sale  the  whole  or  any  part  of  a  deer  killed  under  the  afore- 

21  said  provision  shall  be  punished  by  a  fine  of  not  more  than  one  hundred 

22  dollars. 

1  Section  63.     Any  person  duly  authorized  to  hunt  in  the  common-  open  season 

2  wealth  may,  between  sinirise  of  tiie  first  INIonday  of  December  and  sunset  mo.^Ms, 

3  of  the  following  Saturday,  hunt,  pursue,  take  or  kill  by  the  use  of  a  shot-  flil'^'sg 

4  gun,  a  wild  deer,  subject  to  the  following  restrictions  and  provisions:  J?',?!^-*- 

5  No  person  shall,  except  as  provided  in  the  preceding  section,  kill  or  have  1917.  i39. 

6  in  possession  more  than  one  deer.    No  deer  shall  be  hunted,  taken  or  §§39, 40.' 43, 

7  killed  on  land  posted  in  accordance  with  section  seventy-nine,  or  on  land 

8  under  control  of  the  metropolitan  district  commission,  or  in  violation  of 

9  any  city  ortlinance  or  town  by-law,  or  in  any  state  reser\'ation.     No 

10  person  shall  make,  set  or  use  any  trap,  salt  lick  or  other  device  for  the 

11  purpose  of  ensnaring,  enticing,  taking,  injuring  or  killing  a  deer.    Who- 

12  ever  wounds  or  kills  a  deer  shall  make  a  written  report,  signed  by  him, 

13  and  send  it  within  twenty-four  hours  of  such  wounding  or  killing,  to  the 

14  director,  stating  the  facts  relative  to  the  wounding  or  killing.    Violations 

15  of  this  section  shall  be  punished  by  a  fine  of  not  more  than  one  hundred 

16  dollars. 

1  Section  64.     '\^^^oever  hunts,  pursues,  takes,  wounds  or  kills  a  moose.  Moose  not 

2  or  sells,  offers  for  sale  or  has  in  possession  the  flesh  of  a  moose  captured  %i^  ^29,'^' 

3  or  killed  in  the  commonwealth,  shall  be  punished  by  a  fine  of  not  more  ^  ^''  "^*- 

4  than  one  hundred  dollars. 

1  Section  65.     The  director,  wardens,  deputies,  any  member  of  the  Dogs  chasing 

2  state  police,  or  any  officer  cjualified  to  serve  criminal  process,  may  kill  a  "ims-A.  10, 

3  dog  found  chasing  or  himting  deer  at  any  time,  if  the  dog  is  used  for  such  ||g|'  |j®; ,  ^,3 

4  purpose  with  the  knowledge  and  consent  of  his  owner  or  keeper,  and  the  H'J"i  *• 

5  owner  or  keeper  shall  be  punished  by  a  fine  of  fifty  dollars.    If  a  dog  has  1730-40, 3.  §  1. 

6  twice  been  found  chasing  or  hunting  deer,  and  the  owner  or  keeper  of  the  17B3-4!  2s,  §  2. 

7  dog  has  been  notified  on  each  occasion  by  the  director,  if  the  same  dog  is  iso6[45! 

8  thereafter  found  chasing  or  hunting  deer,  it  shall  be  prima  facie  evidence  Jsos!??! 

9  that  such  chasing  or  hunting  was  with  the  knowledge  and  consent  of  9'oo^?J?>'',', 
10  the  said  owner  or  keeper.  isgq,  246,  §  s. 

1870,  304,  §§  7,  S.         1881.  297,  §  5.  1905,  245. 

1871,  320.  P.  S.  92.  §§  8,  10.  1913,  552. 

1874,  77,  I  2.  1882,  199.  1919,  350,  §§  39,  40,  43, 

1877,  95,  §§  6,  S.  R.  L.  92,  §  18.  99,  101,  102. 

1879.209.  §§  7,  10.        1902,154.  1  Op.  A.  G.  523. 

1  Section  66.     Whoever  during  the  open  season  for  deer  hunts,  wounds  Birds  or  quad- 

2  or  kills  a  bird  or  quadruped  with  a  rifle,  revolver  or  pistol,  or  in  pursuit  bekiifeS with 

3  of  birds  or  quadrupeds  has  in  possession  in  any  wood  or  field,  or  on  any  de'i.'r' le'as'on" 

4  highway,  a  rifle,  revolver  or  pistol  shall  be  punished  by  a  fine  -of  not  less  JgJ|'  y^^'  ^  ^• 

5  than  ten  nor  more  than  fifty  dollars. 

1  Section  67.     Whoever  sufi'ers  loss  by  the  eating,  browsing  or  tramp-  Damages  by 

2  ling  of  his  fruit  or  ornamental  trees,  vegetables,  produce  or  crops  by  wild  paw  by  " 

3  deer,  if  the  damage  is  done  in  a  city  may  inform  the  officer  of  police  ^eaUh!"" 

4  thereof,  who  shall  be  designated  to  recei\'e  such  information  by  the  mayor,  i|j°i5'  ^°^- 

5  and  if  the  damage  is  done  in  a  town  may  inform  the  chairman  of  the 


1356 


PRESERVATION    OF   BIRDS    AND    AXIilALS. 


[Chap.  131. 


selectmen  of  the  town  where  the  damage  was  done,  who  shall  proceed  to  6 
tlie  premises  and  determine  whether  the  damage  was  inflicted  by  deer,  7 
and,  if  so,  appraise  the  amount  thereof  if  it  does  not  exceed  twenty  dol-  8 
lars.  If,  in  the  opinion  of  the  ofBcer  or  chairman,  the  amount  of  said  9 
damage  exceeds  twenty  dollars,  he  shall  appoint  two  disinterested  per-  10 
sons,  who,  with  himself,  shall  appraise,  under  oath,  the  amount  thereof.  11 
The  officer  or  chairman  shall  return  a  certificate  of  the  damages  found,  12 
except  in  Suffolk  county,  to  the  treasurer  of  the  county  in  which  the  13 
damage  is  done,  within  ten  days  after  such  appraisal  is  made.  The  14 
treasurer  shall  thereupon  submit  the  same  to  the  county  commissioners,  1.5 
who,  within  thirty  days,  shall  examine  all  bills  for  damages,  and  if  any  16 
doubt  exists,  may  summon  the  appraisers  and  all  parties  interested  17 
and  make  such  examination  as  they  may  think  proper.  The  bills  prop-  18 
erly  appro\ed  with  the  cost  of  appraisal  shall  be  sent  by  the  county  19 
treasurer  to  the  state  auditor,  and  they  shall  be  paid  by  the  common-  20 
Mealth.  In  Suffolk  county  the  certificate  of  damages  shall  be  returned  21 
to  the  treasurer  of  the  town  where  the  damage  is  done,  who  shall  exer-  22 
cise  and  perform  the  rights  and  duties  hereby  conferred  and  imposed  23 
upon  the  county  commissioners  in  other  comities.  The  appraisers  shall  24 
receive  from  the  commonwealth  one  dollar  each  for  every  such  exami-  25 
nation  made  by  them,  and  shall  receive  twenty  cents  a  mile,  one  way,  26 
for  their  necessary  travel.  27 


Hunting  in 
public  parks 
prohibited. 
1909,  362. 
1920,  604,  §  4. 
Op.  A.  G. 
(1920)  72,  215. 


Section  68.  No  person  shall  hunt,  pursue,  take,  kill  or  in  any  man-  1 
ner  molest  or  destroy  any  wild  bird  or  game  within  the  boundaries  of  any  2 
state  reservation,  park,  common  or  any  land  held  in  trust  for  public  use,  3 
except  that  the  authorities  or  persons  having  the  control  and  charge  of  4 
such  reser\'ations,  parks,  commons  or  otlier  lands  may,  with  such  limita-  5 
tions  as  they  may  deem  advisable,  authorize  persons  to  hunt,  take  or  kill  6 
within  said  boundaries  any  wild  birds  or  animals  not  protected  by  law.  7 
Such  authorizations  shall  be  by  written  license,  revocable  at  the  pleasure  8 
of  the  authorities  or  persons  granting  it.  The  boards,  officials  and  per-  9 
sons  ha^'ing  charge  of  reservations,  parks,  commons  and  lands  held  for  10 
public  use  shall  enforce  this  section.  Whoever  violates  this  section  shall  1 1 
be  punished  by  a  fine  of  not  more  than  twenty-five  dollars.  This  section  12 
shall  not  apply  to  state  forests  acquired  under  section  thirty-three  of  13 
chapter  one  hundred  and  thirty-two.  14 


Reservations 
for  protection 
of  birds  or 
animals. 
1911,410,  §  1. 
1919,  350, 
§§  39,  40. 


Section  69.  For  the  purpose  of  protecting  any  species  of  useful 
wild  birds  or  quadrupeds  and  for  aiding  the  propagation  thereof  the 
commissioner  may  accjuire  in  fee  by  piu-chase,  gift  or  devise,  or  may 
lease,  or,  with  the  consent  of  the  owners,  may  control  any  land,  water 
or  shore  or  the  right  to  use  the  same,  including  the  right  of  the  public  in 
such  land  or  on  such  water  or  shore,  as  a  bird  and  game  preserve. 


close  season 
on  restricted 
areas. 

1911.410,  §  2. 
1910,  3S0, 
§5  39,  40,  43. 


Section  70.     For  the  purposes  aforesaid  the  commissioner,  upon  a  1 

petition  filed  with  him  by  the  aldermen  or  the  selectmen,  or  by  one  or  2 

more  owners  of  land,  water  or  shore,  if  satisfied  of  the  suitable  character  3 

and  situation  of  the  same,  may,  with  the  consent  of  the  owners,  order  a  4 

close  season  for  one  or  more  periods,  not  exceeding  five  years  each,  on  5 

all  wild  birds  and  ciuadrupeds  within  the  area  or  any  part  thereof  specified  6 

in  the  petition.     But  before  making  any  such  order,  the  director  shall  7 

give  a  public  hearing  upon  the  matter  at  some  place  in  or  near  the  territory  8 


Chap.  131.]  preservation  of  bird.s  and  ,\nimals.  1357 

9  under  consideration ;  notice  of  said  hearing  shall  be  given  by  publication 

10  once  a  week  for  two  successive  weeks  in  one  or  more  newspapers  pub- 

11  lished  in  the  counties  embracing  the  territory,  the  last  publication  to  be 

12  at  least  seven  days  prior  to  the  time  fixed  for  the  hearing. 


1  Section  71.     In  respect  to  any  territory  mentioned  in  the  two  pre-  Regulations  for 

2  ceding  sections,  the  director  may  make  such  use  of  the  land,  water  or  shore  ^^f"^^^°°'^' 
.3  within  the  territory  as  he  deems  best  for  the  purpose  of  improving  the  §§ V'g^"' 

4  feeding  and  nesting  en\droimient  of  birds  or  game,  and  may  from  time  to  ij'|9^4o'43 

5  time  make  such  rules  and  regulations  relating  to  such  territory  as  he 

6  deems  proper,  and  such  rules  and  regulations  when  approved  by  the 

7  governor  and  council  shall  have  the  force  of  law.     The  director  may 

8  liberate  birtls  within  the  limits  of  the  said  territories,  and,  when  in  his 

9  opinion   such  action  is  advisable,  co-operate  with  land  owners  within 

10  such  territory  in  experiments  in  the  propagation  of  birds  or  quadrupeds. 

11  Whoever  violates  any  such  rules  or  regulations  shall  be  punished  by  a 

12  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not 

13  more  than  two  months,  or  both. 

1  Section  72.     The  director  may  appoint  wardens  or  deputies  to  en-  Enforcement 

2  force  sections  sixty-nine  to  seventy-five,  inclusive,  and  any  rules  and  ignffio',"!"!; 

3  regulations  made  thereunder,  and  may  authorize  in  wxiting  any  such  §|'|g^/o'43 

4  warden  or  deputy  or  the  owner  or  occupant  of  any  land  within  any  such 

5  territory  to  himt,  pursue,  trap,  snare  or  kill  within  the  said  territory  and 

6  under  the  direction  of  the  director  any  quadrupeds  or  birds  which  he  may 

7  consider  harmful  to  birds  and  game  or  to  agriculture,  or  to  take  or  re- 

8  mo\'e  the  nests  or  eggs  of  any  such  birds. 

1  Section  73.     If  an  order  is  made  by  the  commissioner  establishing  Publication 

2  a  close  season  or  a  preserve,  as  provided  in  section  sixty-nine  or  seventy,  ^tawishing 

3  he  shall  cause  a  copy  of  the  order  to  be  published  once  a  week  for  two  ^esenation, 

4  successive  weeks  in  one  or  more  newspapers  published  in  the  counties  J^Ji'  *^°j  5  s. 

5  embracing  the  territory,  and  shall  cause  copies  of  the  order  to  be  posted  §§  39, 40.' 

6  in  conspicuous  places  within  the  towns  where  the  territory  is  situated, 

7  and  also  within  the  limits  of  the  territory  itself.     If  a  great  pond  or 

8  any  part  thereof,  or  any  seashore,  is  included  within  the  territory  as  to 

9  which  a  close  season  is  ordered  as  aforesaid,  a  copy  of  the  order  shall  be 

10  filed  in  the  office  of  the  clerk  of  any  town  bordering  upon  the  pond  or 

11  seashore.,  and  also  in  the  office  of  the  state  secretary.    An  order  made  by 

12  the  commissioner  in  accordance  herewith  shall  take  effect,  when  posted 

13  as  aboA'e  provided.    Any  order  made  in  accordance  herewith  shall  contain 

14  a  full  description  of  the  territory  so  established,  and  the  period  for  which 

15  it  is  closed. 

1  Section  74.     Whenever  such  preserve  has  been  established  or  a  close  Penalty  for 

2  season  has  been  established  upon  a  territory  by  an  order  as  above  pro-  re^J^Ttion. 

3  vided,  no  person,  except  as  provided  in  section  seventy-two,  shall  molest,  J^'yi'^i"' 

4  himt,  pursue,  take  or  kill  any  bird  or  quadruped  within  the  said  territory, 

5  or  disturb  or  injure  any  nest,  eggs  or  young,  or  remove  the  eggs  or  young 

6  from  the  nest.    Violations  of  this  section  shall  be  punished  by  a  fine  of  not 

7  more  than  one  himrlred  dollars  or  by  imprisonment  for  not  more  than 

8  two  months,  or  both. 


1358 


PRESERVATION    OF   BIRDS   .\ND   .\NIMALS. 


[Chap.  131. 


Possession  of 
firearms  on 
reservation 
prima  facie 
evidence  of 
violation. 
1911,  410,  §  S. 


Section  75.  The  entrance  of  any  person  with  a  firearm  or  any  device 
adapted  for  killing  or  injuring  birds  or  quadrupeds  or  with  a  trap  or  snare 
upon  any  territory  established  as  a  preserve  or  upon  which  a  close  season 
has  been  established,  shall  be  prima  facie  evidence  of  a  violation  of  the 
provisions  of  the  preceding  section. 


Protection 
of  birds  by 
towns. 
1913,  296. 


Section  76.     IMoney  may  be  appropriated  by  a  city  council  or  a  1 

town  for  the  protection  and  encouragement  of  birds  which  li\'e  upon  2 

insects  injurious  to  crops  and  trees.     Such  protection  and  encourage-  3 

ment  may  include  the  appointment  and  payment  of  bird  wardens.  4 


Section  77.     Whoever  transports  or  causes  to  be  transported  out  of 


Birds  illegally 
killed  not  to 

ofstete.""'  the  commonwealth  any  bird  or  animal  protected  by  this  chapter  which 
r*l'I™s  22°'  ^^^^  illegally  been  taken  or  killed  therein,  or  has  in  possession  any  such 
1902, 236.  bird  or  animal  with  intent  so  to  do,  shall  be  punished  by  a  fine  of  twenty 

dollars  for  each  bird  or  animal  so  transported  or  had  in  possession. 


Extermination 
of  English 
sparrow. 
1890,  4-13. 
R.  L.  92,  §  24. 


Section  78.     Officers  in  charge  of  public  buildings  in  cities  and  such  1 

officers  as  the  selectmen  designate  and  appoint  in  towns  shall  take  such  2 

reasonable  means  and  use  such  appliances,  except  poison,  as  in  their  3 

judgment  will  effectively  exterminate  the  English  sparrow  in  such  cities  4 

and  towns,  but  nothing  herein  shall  authorize  an  officer  to  enter  on  private  5 

property  without  the  consent  of  the  owner  or  occupant  thereof.    Whoever  6 

wilfully  resists  such  officers  while  engaged  in  such  duties  or  knowingly  7 

interferes  with  the  means  used  by  them  for  such  purpose  shall  be  pun-  8 

ished  by  a  fine  of  not  more  than  twentv-five  dollars.  9 


Posting  land. 

1S84.  303, 

§§1.3. 

R.  L.  92,  §  14. 

4  Op.  A.  G. 

518. 


Section  79.  Whoever,  for  the  purpose  of  shooting  or  trapping,  goes 
on  land  without  permission  of  the  owner  thereof,  after  such  owner  has 
conspicuously  posted  thereon  notice  that  shooting  or  trapping  thereon 
is  prohibited,  shall  be  punished  by  a  fine  of  not  more  than  twenty  dollars. 


arTifidaUy  °^         Section  SO.     A   pcrsou   wlio   artificially  propagates  and  maintains     1 
^l'^^^'^^^^        game  upon  land  so  posted  shall  have  exclusi\'e  property  thereof.  2 

1884.  308,  I  2.  R.  L.  92,  §  15. 


Sale  of  wild 
birds  and 
game  for- 
bidden. 
1817,  103,  § 
1830,  69. 
R.  S.  63,  §  1 

1849,  158, § 

1850,  296. 
1855,  197, § 
G.  S.  82,  §  1 


Section  81.  No  person,  except  as  provided  in  sections  forty-six,  fifty-  1 
two  and  eighty-two  to  eighty-nine,  inclusive,  shall  buy,  sell,  barter,  ex-  2 
change,  or  in  any  way  deal  in  or  trade  with  respect  to,  the  dead  or  li^■ing  3 
bodies,  or  any  part  thereof,  of  wild  birds  or  game  quadrupeds,  protected  4 
l)y  law  in  any  part  of  the  United  States,  whene^•er  and  where\er  taken  5 
or  killed.  is69,246,  §i.  6 


1870,  304,  §  1. 
1877,  95,  §  1. 
1879,  209,  §  1. 
1881,297,  §  1. 
P.  S.  92,  §1  2,  4. 
1884,  308,  §§  2,  3. 
1886,  276,  §1  3,  5. 

1893,  189;  ,398. 

1894,  97:  205. 
1898,  195. 


1900,  379,  §§  2,  5. 

1901,  102. 

R.  L.  92,  §§  2,  3,  6,  9,  15. 

1902,  105. 

1903,  206. 

1904,  369. 

1905,  406. 

1906,  303,  §§  1,  2. 

1907,  166. 
1908,441,  §§2,4. 


1910,564,  §  1. 

1911,  172,  §  1; 
356,  §§  3,  5. 

1912,  203;  567,  §1 
1913,270. 
1917,  170,  §§  1.  3 
1919,153,  §§  1,3. 
4  Op.  A.  G.  518. 

Penalty,  §  88. 


236,  §§  1,  2; 
§§  1,  9. 


Rules  for  propa- 
gation of  wild 
birds  or  game. 
1906,301,  5  1. 
1909,309,  §2; 
421,  §§  1,3. 

1911,  19,  §2; 
3.56,  §  2. 

1912,  567, 
§§2,9. 
1919.  3.50, 

§§  39,  40,  43. 


Section  82.  Upon  written  application  to  the  director,  a  license  may 
be  granted,  without  charge,  to  any  person  to  engage  in  the  rearing  within 
an  enclosure  of  any  wild  birds  or  game  quadrupeds,  and  to  dispose  of  the 
same  alive  for  purposes  of  propagation  under  such  rules  and  regulations 
as  may  be  made  by  the  director,  which,  when  approved  by  the  go\'ernor 
and  council,  shall  luu'e  the  force  of  law.    Such  artificially  propagated  wild 


ClIAP.    131.]  PRESERVATION   OF   BIRDS   AND   ANIMALS.  1359 

7  birds  or  game  quadrupeds,  if  alive,  may  be  bought,  sold  and  had  in  pos- 

8  session  at  any  season  of  the  year  for  purposes  of  propagation. 

1  Section  83.     Upon  written  application  to  the  director,  a  license  may  License  for 

2  be  issued,  without  charge,  to  any  person  desiring  to  engage  in  the  rear-  ll"'oUuch 

3  ing  for  sale  as  food  of  any  of  the  species  known  as  cervidfe  (commonly  gamlfw  food. 

4  known  as  deer  or  elk),  pheasants,  quail,  European  or  gray  partridge,  igos^frr.'fo 

5  wild  geese,  wild  ducks  of  all  species,  and  such  other  birds  or  quadrupeds  ^s°2'4°4''i 

6  as  may  appear  to  the  director  to  be  expedient,  upon  such  terms  and  §§  h  3. 

7  conditions  as  he  shall  prescribe.      Such  birds  and  quadrupeds  killed  §  2;  sso.j  2. 

8  and  tagged  in  accordance  with  this  section  may  be  bought,  sold  and  had  §§3,' 9.  '' 

9  in  possession.    To  each  carcass  of  each  bird  or  quadruped,  and  to  each  §1^39,^40,' 43. 

10  quarter  of  those  species  known  as  cervidBe,  reared  under  this  section,  shall  Penalty.  §  ss. 

11  be  affixed  a  numbered  tag,  to  be  supplied  by  the  director  at  a  cost 

12  of  fi\'e  cents  each;  and  an  accurate  accoiuit  of  birds  and  quadrupeds 
1.'^  so  killed  and  tagged  shall  be  kept  by  the  licensee  and  submitted  to 
14  the  director  upon  the  first  and  fifteenth  of  each  month  during  which 
1.5  the  killing  of  such  birds  and  quadrupeds  is  permitted,  together  with  the 

16  names  of  any  persons  to  Avhom  they  were  sold  or  transported.     EAcry 

17  package  containing  birds  or  quadrupeds  killed  under  this  section  shall  be 

18  plainly  labelled  with  the  name  of  the  licensee  by  whom  such  birds  or 

19  quadrupeds  were  reared  and  killed,  with  the  name  of  the  consignee,  and 

20  with  a  statement  of  the  nimiber  and  kind  of  birds  or  quadrupeds  con- 

21  tained  therein.     All  carcasses  or  parts  thereof  shall  remain  entire  and 

22  unphicked  until  the  time  when  they  are  prepared  for  consumption  as 

23  food.    The  sale  of  any  carcass,  or  part  thereof,  not  having  at  the  time 

24  affixed  thereto  the  tag  required  by  this  section,  shall  be  a  \aolation  of 
2.5  sections  eighty-one  to  eighty-six,  inclusive. 

1  Section  84.     Any  person  holding  a  license  under  section  eighty-two,  Revocation 

2  eighty-three  or  eighty-six,  convicted  of  any  violation  of  the  fish  and  i9i2,'567!'§ 4. 

3  game  laws,  shall  forfeit  such  license  and  be  debarred  from  securing  a  new  |jgP-  ^-  °- 

4  license  for  a  period  of  one  year  from  the  date  of  conviction,  in  addition  to 

5  being  subject  to  the  penalties  pro\ided  in  section  eighty-eight.     No  pcr- 

6  son  and  no  corporation  of  which  he  is  a  member  shall  be  eligible  to  hold 

7  such  a  license  if  he  has  been  convicted  of  any  violation  of  the  fish  and 

8  game  laws  within  one  year  prior  to  application  therefor. 

1  Section  85.     Any  person  licensed  under  section  eighty-sLx  may  have  Market  man's 

2  in  possession  and  sell  the  unphicked   entire  bodies   of   tlie  following  i9i2!667.  §  5. 

3  species  of  birds  imported  from  without  the  United  States,   namely,  ^^^^'  ^°°-  ^  *^- 

4  pheasants,  mallard  ducks,  Scotch  grouse,  European  black  game,  European 

5  black  plover,  red-legged  partridge,  and  Egyptian  or  migratory  cjuail. 

6  Any  such  person  may  buy,  sell  and  have  in  possession  deer,  moose, 

7  caribou  and  elk  legally  killed  outside  of  the  commonwealth  and  legally 

8  transported  therein;  provided,  that  there  is  attached  to  some  part  of  the 

9  body  of  such  deer,  moose,  caribou  or  elk  the  game  warden's  tag  allowing 

10  the  same  to  be  shipped  from  the  state  or  country  in  which  it  was  killed; 

11  and  provided,  further,  that  before  each  bird  is  sold  in  the  common- 

12  wealth,  there  shall  be  affixed  to  each  carcass  or  body,  or  part  thereof,  a 

13  numbered  tag  to  be  supplied  at  a  cost  of  five  cents  each  by  the  director, 

14  and  said  tag  shall  be  affixed  to  said  body  or  carcass  upon  its  entry  into 

15  the  commonwealth  and  be  kept  thereon  while  the  same  is  mthin  the 

16  commonwealth. 


1360 


PEESERVATION   OF   BIRDS   .^'D   ,\NIMALS. 


[Chap.  131. 


Same  subject. 
1886,  276,  §  3. 
1391,  142,  §  1. 
1S93.  39S. 
1894,  205. 
1900,  379, 
l§3,4. 


Section  86.  A  dealer's  license  allowing  the  holder  thereof  to  engage 
in  the  business  of  selling  and  offering  for  sale  wild  birds  or  game  quafl- 
rupeds  reared  or  imported  under  section  eighty-three  or  eighty-five  may 
be  granted  without  charge  by  the  director  to  any  person. 

3,  4,  6. 


R.  L.  92,  §i 
1902,  IBS. 

1904,  369. 

1905,  406. 


1906,  301,  §§  1,  2; 

303,  §§  1,  2. 

1908,441,  §  2. 

1909,421,  §§  1,  3;  508,  §  1. 


1911,  356,  §  3. 

1912,  567,  §§  6,  9. 
1919,  350,  §§  39,  40,  43. 


Licenses 
revocable. 


Section  87.     Licenses  issued  by  the  director  may  be  revoked  by  him. 

1912,  567,  §  8.  1919,  3.50,  §§  39.  40,  43. 


Penalties  for 
breach  of  sec- 
tions 81  to  86. 
1817,  103,  §  1. 
R.  S.  53,  §  1. 
1837,  170,  s  1. 
1S44,  150,  §  1. 
1855,  197,  I  1. 
G.  S.  82, 
§§1,5,6. 
1869.  246, 
§§1,3. 


Section  88.  Whoever  violates  any  provision  of  sections  eighty- 
one  to  eighty-six,  inclusive,  or  any  rule  or  regulation  made  thereunder, 
or  counterfeits  or  uses  again  any  tags  used  as  therein  pro\ided,  shall  be 
punished  by  a  fine  of  not  less  than  twenty  nor  more  than  fifty  dollars  for 
each  bird  or  quadruped,  or  part  thereof,  in  respect  to  which  the  violation 
occurs,  and  for  a  subsequent  offence  by  imprisonment  for  not  more  than 
three  months.  i870, 304,  §§  1-4.  is77, 95,  §§  1-3. 


1879,209,  §§  1-3. 
1881,291,  §  1. 
P.  S.  92,  §§H. 
1884,  308.  §  3. 
1886,276,  §§3.5. 

1893,  189. 

1894,  97;  205. 
1898,  195. 


1900,  379,  §  5. 

1901,  102. 

R.  L.  92.  §§2-4,  0,  9,  15. 

1902,  165. 

1903,  206. 

1904,  369. 

1905,  406. 

1906,301,  §§2,  3;  303,  §§2,3. 


1907,  166. 

190.8,441,  §§3,  4;  477,  §3. 

1909,  309,  S§  3,  4;  421, 
§§3,4;  508,  §§3,  4. 

1910,  564,  §  3. 

1911,  19,  §  3;  172,  §§  3,  4; 
236,  §§  2,  3:  356,  §§  4,  5. 

1912,  567,  §§  9,  10. 


Museums, 
etc.,  exempt 
from  certain 
sections. 
Application 
of  certain 
sections. 

1897,  524. 

1898,  339. 


Section  89.     Sections  twenty-two,  twenty-eight,  thirty-seven,  thirty-  1 

nine  and  eighty-one  shall   not   apply  to  natural   history  associations  2 

and  museums  nor  to  holders  of  the  certificates  provided  for  in  section  3 

nineteen,  and  sections  eighty-one  to  eighty-six,  inclusive,  shall  not  apply  4 

to  the  sale  of  feathers  or  fur.                              R.  l.  92,  §8.  5 


1903.  244,  §  2;  329. 
1909,  421,  §  1;  508,  §  1. 


1912,  567,  §  7. 
1917,  73. 


Canada  lynz. 
1903,  344. 


Section  90.  Whoever  in  any  town  kills  a  wild  cat,  Canada  lyiLx  or 
loupcervier  not  being  in  captivity  shall,  upon  producing  satisfactory  evi- 
dence of  such  killing,  be  entitled  to  recei^'e  from  the  treasury  of  the  town 
the  sum  of  five  dollars;  and  all  sums  so  paid  out  shall  be  repaid  to  the 
town  treasurer  by  the  treasurer  of  the  county  where  the  town  is  situated : 
provided,  that  a  sworn  statement  thereof  shall  be  transmitted  by  the 
town  treasurer  to  the  county  treasurer. 


REFERENCES. 

Bonds  of  city  clerks  relative  to  fees  for  hunter's  certificate,  Chap.  140,  §  14S. 

Dogs,  Ucensing  of.  Chap.  130,  §  137  el  seq. 

Fines,  disposition  of,  under  game  laws.  Chap.  130,  §  13. 

§§  37,  39,  40  are  affected  by  the  act  to  carry  out  the  treaty  between  the  United 
States  and  Great  Britain  as  to  migratory  birds  (40  U.  S.  Sts.  at  L.  755)  and  regula- 
tions made  thereunder. 

Special  Acts. 
R.  L.  92,  §  13,  Plymouth  harbor  and  adjacent  waters,  kilhng  of  certain  aquatic  birds 

restricted. 
R.  L.  92,  §  23,  Dukes  county,  killing  of  foxes,  etc.,  in. 
1905,  273,  Dukes  count}',  shooting  of  ducks  in  waters  restricted. 
1907,  264,  Dukes  county,  shooting  of  ducks  restricted. 

1907,  504,  Martha's  Vineyard,  shooting  heath  hen. 

1908,  331,  Edgartown,  shooting  of  wild  fowl  restricted. 
1917,  40,  Muskeget  island,  possession  of  live  cats  prohibited. 
1917,  157,  Hampden  county,  shooting  quail  in,  regulated. 
1917,  157,  Middlesex  county,  shooting  quail  in,  regulated. 

1919,  40,  Essex,  Dukes  and  Nantucket  counties,  protection  of  quail. 

1920,  273,  Nantucket,  use  of  decoys. 
There  are  other  special  acts. 


Chap.  132.] 


FORESTRY. 


1361 


CHAPTER     132. 


FORESTRY. 


Sect. 

1.  Duties  of  state  forester. 

2.  Gifts  and  bequests. 

3.  Payment  of  forest  warden. 

4.  Report. 

5.  Management  of  forest  land. 

6.  Advice  to  owners  of  forests. 

7.  Labor  on  state  forests. 
Agents   destroying  gypsy   moths   may 

enter  on  any  land. 

Nurseries  of  forest  trees. 

Land  for  experiments  in  forest  manage- 
ment. 

GjTJsy  and  brown  tail  moths  declared 
public  nuisances.  Regulations  for 
their  suppression. 

Penalty  for  interfering  with  moth 
work. 

13.  Local  gypsy  moth  superintendents. 

14.  Reimbursement  of  cities  and  towns. 

15.  Accounts. 

16.  Sums  to  be  spent  by  cities  and  towns. 

17.  Same  subject. 


8. 


9. 
10. 


11 


12 


Sect. 

18.  Notice  to  land  owners.     Assessment  of 

cost  of  work. 

19.  Assessment  of  special  benefits. 

20.  Appeal. 

21.  Abatement  of  assessment. 

22.  Application  for  abatement. 

23.  Abatement. 

24.  Record  of  abatement. 

25.  Tent  caterpillar,  leopard  moth  and  elm 

beetle. 

26.  Entry  on  land.    Assessment  for  cost  of 

work. 

27.  Arsenate  of  lead  furnished  at  cost. 

28.  Collection  of  amount  charged. 

29.  Forester  to  furnish  arsenate  of  lead. 

30.  State  forests. 

31.  Management  of  state  forests. 

32.  Appropriation. 

33.  Additional  lands  for  state  forests. 

34.  Rules  as  to  use  of  state  forests. 
.35.  Forests  in  cities  and  towns. 

36.  Appropriation. 

37.  Duties  of  local  forest  wardens. 


Section  1.     The  state  forester,  in  this  chapter  called  the  forester,  Duties  ot 
shall  act  for  the  commonwealth  in  suppressing  the  gypsy  and  brown  tail  igol,  409!§  2. 
moths;    shall  promote  the  perpetuation,  extension  and  proper  manage-  igooiiesiii' 
ment  of  the  public  and  private  forest   lands  of  the  commonwealth;  Jg^g;  ^l'  *  '■ 
shall  give  such  a  course  of  instruction  to  the  students  of  the  Massa-  |5 1-  2-, 

...,.^,,  -.  ..  ™«  iyi7,  bd. 


6  chusetts  Agricultural  College  on  the  art  and  science  of  forestry  as  mav  i^is'  ssb,  §  42. 

224  Mass  28 

7  be  arranged  by  the  trustees  of  the  college  and  the  forester;    and  shall 

8  perform  such  other  duties  as  may  be  imposed  upon  him  by  the  governor 

9  and  council. 


1  Section  2.    The  commissioner  of  conservation,  in  this  chapter  called  p'f'=  "P'^ 

n      1  *■  •!!  ipi  1-1  bequests. 

2  the  commissioner,  with  the  approval  01  the  governor  and  council,  may  isos,  4Ts,  §  3. 
accept  on  behalf  of  the  commonwealth  bequests  or  gifts  to  be  used  for  isia!  3,50! 
the  purpose  of  advancing  the  forestry  interests  of  the  commonwealth, 
under  the  direction  of  the  governor  and  council,  in  such  manner  as  to 
carry  out  the  terms  of  the  bequests  or  gifts ;   and  he  may,  subject  to  the 
approval  of  the  deed  and  title  by  the  attorney  general  as  provided  in 

8  section  ten,  accept  on  behalf  of  the  commonwealth  gifts  of  land  to  be 

9  held  and  managed  for  the  purpose  provided  in  said  section.    A  donor 

10  of  such  land  may  reserve  the  right  to  buy  back  the  land  in  accordance 

11  with  said  section;   but  in  the  absence  of  a  provision  to  that  effect  in  his 

12  deed  of  gift  he  shall  not  have  such  right. 


3 

4 
5 
6 

7 


1  Section  3.     The  forester  shall  from  the  money  appropriated  annually  payment  of 

2  for  the  expenses  of  his  office  recompense  the  forest  wardens  for  the  time  ig^.^""'*'^''' 

3  spent  by  them  in  making  investigations  under  his  direction,  as  required  [1*^^  I^q^  |  43 


1362 


FORESTRY. 


[ClLiP.    132. 


by  section  thirty-seven  of  tliis  chapter  and  section  twenty-five  of  chapter  4 
forty-eight;  provided,  that  he  shall  not  be  liable  to  make  any  such  pay-  5 
ment  except  upon  the  presentation  of  a  duly  itemized  account  or  to  pay  6 
for  such  investigations  at  a  rate  greater  than  that  approved  by  him  or  7 
in  excess  of  the  appropriation  available  for  such  pajTnent.  He  may  also  8 
expend  such  sums  as  are  annually  appropriated  in  making  necessary  9 
arrangements  for  conventions  of  forest  wardens  to  be  held  at  a  place  10 
within  the  commonwealth  and  in  paying  wholly  or  in  part  the  traveling  11 
expenses  to  and  from  their  towns  of  such  forest  wardens  who  attend  these  12 
conventions;  provided,  that  no  money  shall  be  expended  in  pajing  the  13 
traveling  expenses  of  any  one  warden  to  or  from  more  than  one  convention  14 
in  one  year.  15 


Report. 

1904,  409.  5  5. 

1905,  381.  §  2. 
1909,  263,  §  2. 
1911.  722.  §  2. 
1914.  720,  §  3. 
1916,  97. 
1919,  350. 

§§  8,  39.  42. 


Section  4.    The  commissioner  shall  make  an  annual  report  of  the  acts  1 

of  the  forester.    The  report  shall  separate  so  far  as  practicable  the  expend-  2 

itures  on  work  against  the  gypsy  moth  from  those  on  work  against  the  3 

brown  tail  moth  in  each  town.    It  shall  include  the  account  of  all  money  4 

invested  in  each  state  forest  and  of  the  annual  income  and  expense  thereof,  5 

and  the  report  of  the  state  fire  warden  required  by  section  twenty-eight  6 

of  chapter  forty-eight.  7 


oflores^Uand  SECTION  5.  The  forcstcr  shall  replant  or  otherwise  manage  all  land  1 
J2?S':JTo'  t  ?\  acquired  by  the  commonwealth  and  held  bv  it  under  section  ten  in  such  2 
manner  as  will  produce  the  best  forest  growth  both  as  to  practical  forestry    3 

4 


results  and  protection  of  water  supplies. 


Advice  to 
owners  of 
forests. 

1904.  409.  §  2. 
1919.  350.  §  42. 
224  Mas3.  28. 


Section  6.     The  forester  may  give  to  any  person  owning  or  controlling  1 

forest  lands  aid  or  advice  in  the  management  thereof.    Any  recipient  of  2 

such  aid  or  advice  shall  be  liable  to  the  commonwealth  for  the  necessary  3 

expenses  of  travel  and  subsistence  incurred  by  him  or  his  assistants.    The  4 

forester  may  publish  the  particulars  and  results  of  any  investigation  made  5 

by  him  or  his  assistants  as  to  any  lands  within  the  commonwealth,  and  6 

the  advice  given.  7 


Labor  on 

state  forests. 
1914.  720,  I  4. 
1919,  350,  §  42. 


Section  7.  The  forester,  in  the  reforestation,  maintenance  and 
development  of  lands  purchased  under  section  tliirty  or  thirty-three, 
shall,  so  far  as  practicable,  obtain  the  labor  necessary  therefor  under 
sections  eighty-three  and  eighty-four  of  chapter  one  hundred  and 
twenty-seven. 


Agents 
destroying 
gypsy  moths 
may  enter  on 
any  land. 

1905,  381,  5  3. 

1906,  268,  §  1. 

1908,  591, 
§§  1.  2. 

1909,  263.  §  2. 
1915,  124. 
1919,  350,  §  42. 


Section  8.     The  clerks,  assistants  and  agents  employed  by  the  for-  1 

ester  may,  for  the  purpose  of  carrying  out  the  provisions  of  this  chap-  2 

ter  relative  to  the  suppression  of  gypsy  and  brown  tail  moths,  enter  3 

upon  any  land;   and  any  local  superintendent  appointed  as  provided  in  4 

section  thirteen  or  any  agent  or  employee  of  such  superintendent  may  5 

enter  upon  any  land  within  the  said  town  for  the  purpose  of  determin-  G 

ing  if  such  land  is  infested  with  said  moths  or  the  extent  to  which  such  7 

land  is  so  infested.  8 


Nurseries  of          Section  9.    The  forestcr  may  establish  and  maintain  nurseries  for  the  1 

1904, 409"§  3.    propagation  of  forest  tree  seedlings  upon  such  lands  of  the  commonwealth  2 

1919!  35o!  §  42.  at  any  state  institution  as  the  superintendent  or  trustees  thereof  may  set  3 

apart  for  this  purpose.     Superintendents  of  institutions  where  land  is  4 


CllAP.    132.]  FORESTRY.  1363 

5  set  apart  therefor  may  furnish  without  charge  the  labor  of  their  inmates 

6  necessary  to  estabUsh  and  maintain  said  nurseries.     Seedlings  from  these 

7  nurseries  shall  be  furnished  to  the  commonwealth  without  expense  for  use 

8  upon  reservations  set  aside  for  the  propagation  of  forest  growths  for  other 

9  than  park  purposes.    All  stock  grown  in  nurseries  established  under  this 

10  section  shall  be  used  within  the  commonwealth  and  shall  be  furnished  to 

11  state  institutions  without  charge.     The  forester  may  distribute  seeds  and 

12  seedlings  to  land  owners,  citizens  of  the  commonwealth,  under  such  con- 

13  ditions  and  restrictions  as  he  may  determine,  subject  to  the  approval  of 

14  the  governor  and  council. 

1  Section  10.    The  commissioner,  with  the  advice  and  consent  of  the  Land  for  ex- 

2  governor  and  council,  for  experiment  and  illustration  in  forest  manage-  For™m'an'a°ge- 

3  ment  and  for  reforestation  as  set  forth  in  this  section  may  expend  annu-  igos%78, 

4  ally  such  sum  as  is  appropriated  by  the  general  coiu't  in  purchasing  ||o9' I'h^' 

5  lands  situated  within  the  commonwealth  and  adapted  to  forest  produc-  J?i|i^°i'' 

6  tion.     Land  so  acquired  shall  be  under  the  control  and  management 

7  of  the  forester,  who  may,  subject  to  the  approval  of  the  governor 

8  and  council,  cut  and  sell  trees,  wood  and  other  produce  therefrom.    The 

9  price  of  such  land  shall  not  exceed  in  any  instance  five  dollars  per  acre, 

10  nor  shall  more  than  eighty  acres  be  acquired  in  any  one  tract  in  any  one 

1 1  year,  except  that  a  greater  area  may  so  be  acquired  if  the  land  purchased 

12  directly  affects  a  source  or  tributary  of  water  supply  in  any  town  of  the 

13  commonwealth.    All  such  lands  shall  be  conveyed  to  the  commonwealth, 

14  and  no  lands  shall  be  paid  for  nor  shall  any  money  be  expended  in  im- 

15  provements  thereon  until  all  instruments  of  conveyance  and  the  title  to 

16  be  transferred  thereby  have  been  approved  by  the  attorney  general,  and 

17  until  such  instruments  have  been  executed  and  recorded.    For  assisting 

18  in  reforestation  a  portion,  not  exceeding  twenty  per  cent  of  the  money 

19  authorized  to  be  expended  under  this  section  may  be  used  by  the  forester 

20  for  the  distribution,  at  not  less  than  cost,  of  seeds  and  seedlings  to  land 

21  owners  who  are  citizens  of  the  commonwealth,  under  such  conditions 

22  and  restrictions  as  the  forester,  subject  to  the  approval  of  the  governor 

23  and  council,  may  impose.    The  owners  of  land  purchased  under  this  sec- 

24  tion,  or  their  heirs  and  assigns,  may  repurchase  the  land  within  ten  years 

25  after  the  purchase,  upon  paying  the  price  originally  paid  by  the  com- 

26  monwealth,  with  interest  at  the  rate  of  four  per  cent  per  annum, 

27  together  with  the  amount  expended  in  improvements  and  maintenance. 

28  The  commissioner,  with  the  approval  of  the  governor  and  council,  may 

29  execute  in  behalf  of  the  commonwealth  such  deeds  of  reconveyance  as  may 

30  be  necessary;  provided,  that  there  shall  be  included  in  such  deeds  a  restric- 

31  tion  that  trees  cut  from  such  property  shall  not  be  less  than  eight  inches 

32  in  diameter  at  the  butt. 

1  Section  11.     The  forester  may,  subject  to  the  approval  of  the  gov-  Gypsy  and 

2  ernor,  make  rules  and  regulations  governing  all  operations  by  towns  or  motiisde^' 

3  persons  for  the  purpose  of  suppressing  the  gypsy  and  brown  tail  moths,  nuSat^es''''" 

4  their  pupse,  nests,  eggs  and  caterpillars,  which  are  hereby  declared  public  ^r^h^'r""^ 

5  nuisances.     He  may  make  contracts  on  behalf  of  the  commonwealth;  jngFlgj™- 

6  may  act  in  co-operation  with  any  person,  any  other  state,  the  United  §§  i.'s. 

7  States,  or  any  foreign  government;  may  conduct  investigations  and  gather  igos!  591!  §  1'. 

8  and  distribute  information  concerning  said  moths;   may  use  and  require  i9?9!35o! 

9  the  use  of  all  other  lawful  means  of  suppressing  said  moths;   may  lease  ^^  '*''^^' 


1364 


FORESTRY. 


[Chap.  132. 


2  0p.  A.  G.589.  real  estate  M'lien  he  deems  it  necessary,  and,  with  the  approval  of  the  10 
^-  ■  ■  ■  authority  in  charge,  may  use  any  real  or  personal  property  of  the  com-  11 
monwealth;  may  at  all  times  enter  upon  any  land,  and  may  use  all  reason-  12 
able  means  in  suppressing  said  moths;  and,  in  the  undertakings  aforesaid,  13 
may,  in  accordance  with  this  chapter,  expend  the  funds  appropriated  or  14 
donated  therefor;  but  no  expenditure  shall  be  made  or  liability  incurred  15 
in  excess  of  such  appropriations  and  donations.  No  owner  or  occupant  16 
of  an  estate  infested  by  the  aforesaid  nuisances  shall  by  reason  thereof  be  17 
civilly  or  criminally  liable  except  to  the  extent  and  in  the  manner  and  18 
form  set  forth  in  this  chapter.  19 


Penalty  for 
interfering 
with  moth 
work. 
1902,  57.  §  3 

1905,  381,  § 

1906,  268,  I 
1909,  263,  I 
1919,  350, 
§§39,41. 


Section  12.     Whoever  wilfully  resists  or  obstructs  the  forester  or  any  1 

ofHcer  of  a  town,  or  a  servant  or  agent  duly  employed  by  said  forester  or  2 

by  any  of  said  officers  wliile  engaged  in  suppressing  the  gypsy  and  brown  3 

tail  moths,  elm  leaf  beetle,  or  any  other  tree  or  shrub  destroying  pest,  4 

or  knowingly  fails  to  comply  with  any  of  the  rules  or  regulations  issued  5 

by  the  forester,  shall  be  punished  by  a  fine  of  not  more  than  twenty-five  6 

dollars.  7 


moth^^enn-        SECTION  13.     The  mayor  in  cities  and  the  selectmen  in  towns  shall  1 

ilostssi,  §  4.    annually  in  the  month  of  January  appoint  a  local  superintendent  for  2 

1907'  52i'  I  f    *^^^  suppression  of  gypsy  and  brown  tail  moths.     Said  superintendents  3 

i9io!  i5o'.         shall,  under  the  advice  and  general  direction  of  the  forester,  destroy  4 

1919]  35o!  §  42.  the  eggs,  caterpillars,  pupae  and  nests  of  the  gypsy  and  brown  tail  moths  5 

within  their  limits,  except  in  parks  and  other  property  under  the  control  6 

of  the  commonwealth,  and  except  in  private  property,  save  as  other-  7 

wise  provided  herein.     The   appointment  of  a   local   superintendent  8 

shall  not  take  effect  unless  approved  by  the  forester;    and  when  so  9 

approved  notice  of  the  appointment  shall  be  given  by  the  mayor  or  the  10 

selectmen  to  the  person  so  appointed.  11 


Reimbiurse- 
ment  of  cities 
and  towns. 

1905,  381, 
§§  4,  12. 

1906,  268,  §  2. 

1907,  521, 
§§  1,2,4. 

1909,  263.  §  2. 

1910,  150. 
1911,474. 
1913,  600,  §  2. 
1919,  350,  §  42 


Section  14.  When  any  city  or  town  in  which  one  twenty-fifth  of  1 
one  per  cent  of  the  assessed  valuation  of  real  and  personal  property  is  2 
more  than  five  thousand  dollars  shall  have  expended  within  its  limits  3 
city  or  town  funds  to  an  amount  in  excess  of  five  thousand  dollars  in  4 
any  one  year  ending  November  thirtieth  in  suppressing  gypsy  or  brown  5 
tail  moths,  the  commonwealth  shall  reimburse  such  city  or  town  to  6 
the  extent  of  fifty  per  cent  of  such  excess  above  said  five  thousand  7 
dollars.  8 

Cities  or  towns  where  one  twenty-fifth  of  one  per  cent  of  the  assessed  9 
valuation  of  real  and  personal  property  is  less  than  five  thousand  dollars,  10 
and  where  the  assessed  valuation  of  real  and  personal  property  is  greater  1 1 
than  six  million  dollars,  shall  be  reimbursed  by  the  commonwealth  to  the  12 
extent  of  eighty  per  cent  of  the  amount  expended  by  such  cities  or  towns  13 
of  city  or  town  funds  in  suppressing  said  moths  in  any  one  such  year,  14 
in  excess  of  said  twenty-fifth  of  one  per  cent.  15 

In  towns  where  the  assessed  valuation  of  real  and  personal  property  16 
is  less  than  six  million  dollars,  after  they  have  expended  in  any  one  such  17 
year  town  funds  to  an  amount  equal  to  one  twenty-fifth  of  one  per  cent  18 
of  their  assessed  valuation  of  real  and  personal  property,  the  common-  19 
wealth  shall  expend  within  the  limits  thereof  for  the  suppression  of  said  20 
moths  such  an  amount  in  addition  as  the  forester,  with  the  advice  and  21 


Chap.  132.]  forestry.  1365 

22  consent  of  the  governor,  shall  determine.    The  commonwealth  shall  reim- 

23  burse  cities  and  towns  every  sixty  days. 

24  No  city  or  town  shall  be  entitled  to  any  reimbursement  from  the  com- 

25  monwealth  until  it  has  submitted  to  the  state  auditor  itemized  accounts 

26  and  vouchers  showing  the  definite  amount  expended  by  it  for  the  purpose 

27  of  suppressing  said  moths,  nor  shall  any  money  be  paid  out  of  the  state 

28  treasury  to  cities  or  towns  until  said  vouchers  and  accounts  have  been 
'29  approved  by  the  forester  and  the  state  auditor. 

30  For  the  purposes  of  this  section  and  section  sixteen  the  valuation  of 

31  the  previous  year  shall  be  taken  as  a  basis. 

1  Section  15.     Every  city  or  town  in  rendering  the  account  required  nSs^ali;  §  7. 

2  by  the  preceding  section  shall  deduct  from  such  amount  as  it  has  expended  }^o^'  ^^s.  |  s. 

3  the  total  amount  it  has  assessed  for  work  performed  under  section  eighteen 

4  during  the  term  covered  by  the  account,  if  such  work  was  performed 

5  under  such  conditions  as  require  reimbursement  in  whole  or  in  part  by 

6  the  commonwealth. 

1  Section  16.     When,  in  the  opinion  of  the  forester,  any  city  or  town  sums  to  be 

2  is  not  expending  a  sufficient  amount  for  the  abatement  of  said  nuisance  anTto'wns.""^^ 

3  or  is  not  conducting  the  necessary  work  in  a  proper  manner,  the  forester  Jggf,;  HI]  |  3; 

4  shall,  with  the  advice  and  consent  of  the  governor,  order  such  city  or  J^°^'  |f;^'  1 1 

5  town  to  expend  such  an  amount  as  the  forester  shall  deem  necessary,  Jn'Mlii'  540 

6  and  in  accordance  with  such  methods  as  the  forester,  with  the  consent  of  2  Op!  a.  g.  594! 

7  the  governor,  shall  prescribe;  provided,  that  no  city  or  town  where  the 

8  assessed  valuation  of  real  and  personal  property  exceeds  six  million 

9  dollars  shall  be  required  to  expend,  exclusive  of  any  reimbursement  re- 

10  ceived  from  the  commonwealth,  during  any  one  full  year  more  than  one 

11  fifteenth  of  one  per  cent  of  such  valuation,  and  that  no  town  where  the 

12  assessed  valuation  of  real  and  personal  property  is  less  than  six  million 

13  dollars  shall  be  required  to  expend,  exclusive  of  any  reimbursement 

14  received  from  the  commonwealth,  during  any  one  full  year  more  than  one 

15  twenty-fifth  of  one  per  cent  of  such  valuation. 

1  Section  17.     Any  city  or  town  failing  to  comply  with  the  directions  Same  subject. 

2  of  the  forester  in  the  performance  of  said  work  within  the  date  specified  Itae.  las,  1 3. 

3  by  him  shall  pay  a  fine  of  one  hundred  dollars  a  day  for  failure  so  to  do,  {gog;  263]  1 2. 

4  said  fine  to  be  collected  by  information  brought  by  the  attorney  general  }g}g'  Hq  ,  ^3 

5  in  the  supreme  judicial  court  for  Suffolk  county. 

6  In  case  of  emergency,  or  where  there  is  great  or  immediate  danger  of 

7  the  increase  or  spread  of  moths  due  to  the  neglect  of  any  city  or  town 

8  to  comply  with  the  pro\isions  of  this  chapter  relating  to  the  suppression 

9  of  gypsy  and  brown  tail  moths,  the  forester,  with  the  consent  of  the 

10  governor,  may  initiate  or  continue  the  work  of  suppression  within  such 

1 1  city  or  town  for  such  a  period  as  he  may  deem  necessary.    The  cost  of 

12  such  work,  including  that  done  on  private  estates,  less  any  sum  due  from 

13  the  commonwealth  by  way  of  reimbursements  on  account  of  said  work, 

14  shall  be  certified  by  the  forester  to  the  state  treasurer,  and  be  collected 

15  by  him  as  an  additional  state  tax  upon  the  city  or  town  so  failing  to 

16  comply  with  the  requirements  of  the  law.     The  forester  may  also  in  case 

17  of  emergency,  subject  to  the  approval  of  the  governor,  carry  on  wholly 

18  or  in  part  such  operations  as  may  be  necessary  to  check  the  spreading  of 


1366  FORESTRY.  [ChAP.    132. 

the  gj^psy  or  brown  tail  moth  in  parks  not  under  the  control  of  the  com-  19 
monwealth,  and  in  cemeteries,  woodlands  and  other  places  of  public  20 
resort.  The  amount  to  be  so  expended  in  any  one  year  shall  not  exceed  21 
ten  per  cent  of  the  appropriations  made  for  the  year  by  the  commonwealth  22 
for  the  purpose  of  suppressing  said  moths.  The  forester  may  also  take  23 
complete  control  of  the  work  of  suppressing  the  gypsy  and  brown  tail  24 
moths  in  such  cities  and  towns  as  may  through  the  proper  officials  request  25 
it.  The  cost  of  such  work  shall  be  certified  by  the  forester  to  the  state  26 
treasurer,  and  shall  be  collected  by  him  as  an  additional  state  tax  upon  the  27 
city  or  town  wherein  such  work  is  performed;  provided,  that  no  city  or  28 
town  shall  be  required  to  pay  more  for  such  work  than  would  have  been  29 
its  liability  as  defined  by  section  fourteen.  30 

landown"  SECTION  18.     The  mayor  of  every  city  and  the  selectmen  of  every     1 

Assessment  of    towu  shall,  ou  OF  bcfoFC  Novcmbcr  first  in  each  year,  and  at  such  other    2 

1905, 381,  §  '6,    times  as  he  or  they  shall  see  fit  or  as  the  forester  may  order,  cause  a  notice    3 

1908]  59i!  1 2.    to  be  sent  to  the  owner,  so  far  as  can  be  ascertained,  of  every  parcel  of  land    4 

1915;  124!  ^  ^'    therein  which  is  infested  with  said  moths;  or,  if  such  notification  appears    5 

mVs^ss!  394^'  to  be  impracticable,  by  posting  such  notice  on  said  parcels  of  land,  re-    6 

2  Op.  A.  G.  594.  quiring  that  the  eggs,  caterpillars,  pupse  and  nests  of  said  moths  shall  be    7 

destroyed  within  a  time  specified  therein.    The  publication  of  the  notice    8 

in  newspapers  published  or  circulated  in  the  city  or  town  at  least  three    9 

times  during  the  month  of  October  shall  be  deemed  a  compliance  with  the  10 

law,  if  in  the  opinion  of  the  mayor  or  selectmen  such  publication  will  be  1 1 

a  sufficient  notice.  12 

When,  in  the  opinion  of  the  mayor  or  selectmen,  the  cost  of  destroying  13 

such  eggs,  caterpillars,  pupse  or  nests  on  land  contiguous  and  held  under  14 

one  ownership  in  a  city  or  town  shall  exceed  one  half  of  one  per  cent  of  15 

the  assessed  value  thereof,  a  part  of  said  premises  on  which  said  eggs,  16 

caterpillars,  pupae  or  nests  shall  be  destroyed  may  be  designated  in  such  17 

notice,  and  such  requirement  shall  not  apply  to  the  remainder  of  said  18 

premises.    The  mayor  or  selectmen  may  designate  the  manner  in  which  19 

such  work  shall  be  done,  but  all  work  done  under  this  section  shall  be  sub-  20 

ject  to  the  approval  of  the  forester.  21 

If  the  owner  shall  fail  to  destroy  such  eggs,  caterpillars,  pupte  or  nests  22 

as  required  by  said  notice,  the  city  or  town,  acting  by  the  local  superin-  23 

tendent  appointed  under  section  thirteen,  shall,  subject  to  the  approval  24 

of  the  said  forester,  destroy  the  same,  and  the  amount  actually  ex-pended  25 

thereon,  not  exceeding  one  half  of  one  per  cent  of  the  assessed  valuation  26 

of  said  lands,  as  heretofore  specified  in  this  section,  shall  be  assessed  upon  27 

the  said  lands;  and  such  an  amount  in  addition  as  shall  be  required  shall  28 

be  apportioned  between  the  city  or  town  and  the  commonwealth  in  29 

accordance  with  section  fourteen.    The  amounts  to  be  assessed  upon  30 

private  estates  as  herein  provided  shall  be  assessed  and  collected,  and  31 

shall  be  a  lien  on  said  estates,  in  the  same  manner  and  with  the  same  32 

effect  as  in  the  case  of  assessments  for  street  watering.  33 

rflp^cTaT'  Section  19.     If,  in  the  opinion  of  the  assessors  of  a  city  or  town,  any     1 

1905^^81  5  7     '^^"^  therein  has  received,  by  reason  of  the  abatement  of  said  nuisances    2 
1909]  20:5;  I  i.    thereon  by  said  forester  or  bv  said  city  or  town,  a  special  benefit  bevond  the    3 

1919  350   §  42.  *"..  ^         r  ^v 

'  general  advantage  to  all  land  in  the  city  or  town,  then  the  said  assessors  4 
shall  determine  the  value  of  such  special  benefit  and  shall  assess  the  5 
amount  thereof  upon  said  land;  provided,  that  no  such  assessment  on  lands     6 


Chap.  132.]  forestry.  1367 

7  contiguous  and  held  under  one  ownership  shall  exceed  one  half  of  one  per 

8  cent  of  the  assessed  valuation  of  said  lands;  and  provided,  that  the  owner 

9  or  owners  shall  have  deducted  from  such  assessment  the  amount  paid  and 

10  expended  by  them  during  the  twelve  months  last  preceding  the  date  of 

11  such  assessment  toward  abating  the  said  nuisances  on  said  lands,  if,  in  the 

12  opinion  of  the  assessors,  such  amount  has  been  expended  in  good  faith. 

13  Such  assessment  shall  be  a  lien  upon  the  land  for  three  years  from  the 

14  first  day  of  January  next  after  the  assessment  has  been  made,  and  shall 

15  be  collected  under  a  warrant  of  the  assessors  to  the  collector  of  taxes  of 

16  such  city  or  town,  in  the  manner  and  upon  the  terms  and  conditions 

17  and  in  the  exercise  of  the  powers  and  duties,  so  far  as  they  may  be  ap- 

18  plicable,  prescribed  by  chapter  sixty,  and  real  estate  sold  under  such  ' 

19  warrant  shall  be  subject  to  the  provisions  of  said  chapter  relative  to 

20  land  sold  for  taxes. 

1  SectiojST  20.     A  person  aggrieved  by  such  assessment  may  appeal  to  Appeal, 

2  the  superior  court  for  the  county  where  the  land  lies,  by  entering  a  com-  ^°°^'  ^^^'  ^  ^' 

3  plaint  in  said  court  within  thirty  days  after  he  has  had  actual  notice 

4  of  the  assessment,  which  complaint  shall  be  determined  as  other  causes 

5  by  the  court  without  a  jury.     The  complaint  shall  be  heard  at  the  first 

6  sitting  of  said  court  for  trials  without  a  jury  after  its  entry;  but  the  court 

7  may  allow  further  time,  or  may  advance  the  case  for  speedy  trial,  or  may 

8  appoint  an  auditor  as  in  other  cases.     The  court  may  revise  the  assess- 

9  ment,  may  allow  the  recovery  of  an  amount  wrongfully  assessed  which 

10  has  been  paid,  may  set  aside,  in  a  suit  begun  within  three  years  from  the 

11  date  thereof,  a  collector's  sale  made  under  an  erroneous  assessment,  may         ^ 

12  award  costs  to  either  party,  and  may  render  such  judgment  as  justice  and 

13  equity  require. 

1  Section  21.     If,  in  the  opinion  of  the  assessors,  the  owner  of  an  estate  Abatement  of 

2  upon  which  an  assessment  has  been  made  is,  by  reason  of  age,  infirmity  or  igoTssT.*!  v. 

3  poverty,  unable  to  pay  the  assessment,  they  may  upon  application  abate  Jgof;  goj;  1 3; 

4  the  same. 

1  Section  22.     A  person  aggrieved  by  the  taxes  assessed  upon  him  for  Application  for 

2  the  suppression  of  gypsy  and  brown  tail  moths,  pursuant  to  section  i9ii°243,'§  1. 

3  eighteen  or  nineteen,  may,  within  six  months  after  the  date  of  the  first  tax 

4  bill  issued  on  account  of  the  taxes  complained  of,  apply  to  the  assessors 

5  for  the  abatement  thereof,  who  may  make  such  abatement  as  they  deem 

6  reasonable. 

1  Section  23.     The  assessors  shall  not  abate  a  tax  under  the  preceding  Abatement 

2  section  except  upon  the  written  recommendation  of  the  local  superin-  ^^^''  ^''~'  ^  ^" 

3  tendent  who  certified  the  assessment  in  question  to  the  assessors  or  pro- 

4  vided  them  with  the  information  as  to  the  work  performed,  upon  which 

5  such  tax  was  assessed,  unless  the  error  or  excess  complained  of  originated 

6  in  the  work  of  the  assessors  who  laid  the  tax. 

1  Section  24.     The  assessors  shall  keep  a  record  of  all  such  taxes  abated  Record  of 

2  and  shall  preserve  for  three  years  all  written  recommendations  received  1911,242,  §3. 

3  under  the  preceding  section.     They  shall  fift-nish  the  collector  of  taxes 

4  with  a  certificate  of  each  abatement,  which  shall  relieve  him  from  the 

5  collection  of  the  sum  abated. 


1368 


FORESTRY. 


[Chap.  132. 


Tent  cater- 
pillar, leopard 
moth  and  elm 
beetle, 

1902,  57,  §  1. 
1914,  404,  §  1. 


Section  25.     The  city  forester,  superintendent  or  other  person  having  1 

charge  of  the  suppression  of  gji)sy  and  brown  tail  moths  in  each  city  and  2 

town  in  the  commonwealth,  or,  where  there  is  no  such  person,  the  tree  3 

warden  may  destroy  within  the  limits  of  his  city  or  town  the  tent  cater-  4 

pillar,  leopard  moth  and  elm  beetle  or  any  other  tree  or  shrub  destroying  5 

pest,  if  authorized  so  to  do  by  the  mayor  and  city  council  or  by  the  select-  6 

men  in  towns.  7 


Entry  on  land. 
Assessment  for 
cost  of  work. 
1902,57,  §  1. 
1914,  404,  §  2. 


Section  26.  The  city  forester  or  other  officer  designated  in  the  1 
preceding  section  may  enter  upon  private  land,  and  the  owners  of  private  2 
land  may  be  taxed  for  work  done  under  said  section  as  provided  by  3 
sections  eighteen  and  nineteen;  provided,  however,  that  nothing  con-  4 
tained  in  this  section  shall  require  the  commonwealth  to  pay  any  part  of  5 
any  such  expense  other  than  for  the  suppression  of  the  gypsy  and  brown  6 
tail  moths,  that  no  land  shall  be  assessed  hereunder  which  has  been  7 
assessed  the  maximum  amount  provided  by  said  sections  eighteen  and  8 
nineteen  for  the  suppression  of  the  gypsy  and  brown  tail  moths,  and  9 
that  the  aggregate  assessment  on  any  parcel  of  private  land  for  the  sup-  10 
pression  of  the  tent  caterpillar,  leopard  moth,  elm  beetle  and  gypsy  11 
and  brown  tail  moths  shall  not  exceed  the  maximum  provided  by  said  12 
sections.  13 


Arsenate  of 
lead  furnished 
at  cost. 
1913,  605,  §  1. 
1915,  80. 


Section  27.  To  assist  in  exterminating  gj^psy  and  brown  tail  moths, 
the  local  moth  superintendent  in  any  city  or  town  may  furnish,  at  cost, 
to  any  owner  of  real  estate  situated  within  such  city  or  town  arsenate  of 
lead.  It  shall  be  used  only  for  the  suppression  of  gypsy  and  brown  tail 
moths  and  only  upon  land  of  the  purchaser. 


Collection 
of  amount 
charged. 
1913,  605,  §  2. 


Section  28.  The  amounts  due  for  material  furnished  under  the 
preceding  section  shall  be  charged  by  the  local  moth  superintendent  to 
the  owners  of  private  estates,  and  shall  be  collected  in  the  same  way  as 
amounts  a.ssessed  for  private  work,  and  shall  be  a  lien  on  said  estates  in 
the  same  manner  as  said  assessments.  The  amount  thus  charged  shall 
be  deducted  from  the  total  amount  expended  in  each  city  or  town  in  the 
suppression  of  the  gypsy  and  brown  tail  moths  as  provided  in  section 
fifteen. 


1 
2 

3 

4 
5 
6 

7 
8 


Forester 
to  furnish 
arsenate 
of  lead. 
1915,  171. 
1919,  350,  §  42. 


Section  29.     To  assist  in  exterminating  insect  pests  the  city  forester,  1 

local  moth  superintendent  or  tree  warden  in  any  city  or  town  may  obtain  2 

from  the  forester,  at  cost,  arsenate  of  lead.     It  shall  be  used  only  for  the  3 

suppression  of  gypsy  and  brown  tail  moths,  the  tent  caterpillar,  leopard  4 

moth  and  elm  beetle,  and  only  upon  lands  owned  or  controlled  by  the  5 

city  or  town.    The  cost  of  said  material  shall  be  certified  by  the  forester  6 

to  the  state  treasurer,  and  shall  be  collected  by  him  as  an  additional  state  7 

tax  upon  the  city  or  town  making  such  purchase.  8 


state  forests. 
1914,  720,  §  2. 
1916,  130. 
1919.  350, 
§§39-42. 


Section  30.  The  commissioner  may,  subject  to  the  approval  of  the 
advisory  council  of  the  department  of  conservation,  acquire  for  the 
commonwealth,  by  purchase  or  otherwise,  and  hold,  any  woodland  or 
land  suitable  for  timber  cultivation  within  the  commonwealth,  and,  with 
the  approval  of  the  governor  and  council,  may  take  such  lands  in  fee  by 
eminent  domain  under  chapter  seventy-nine.    The  commissioner  may, 


Chap.  132.]  forestry,  1369 

7  subject  to  the  approval  of  the  advisory  council  of  the  department  of 

8  conservation,  after  a  public  hearing,  sell  or  exchange  any  land  thus  ac- 

9  quired  which  in  his  jlidgment  can  no  longer  be  used  advantageously  for 

10  such  purpose.    The  average  cost  of  land  so  purchased  by  the  commis- 

11  sioner  shall  not  exceed  five  dollars  an  acre. 

1  Section  31.     Lands  acquired  under  the  preceding  section  shall  be  Management 

2  known  as  state  forests,  and  shall  be  under  the  control  and  management  of  i9H^72o°r3'^' 

3  the  forester.     He  shall  reforest  and  develop  such  lands,  and  may,  subject  '®^'*'  ^''°'  ^  *^- 

4  to  the  approval  of  the  commissioner  and  advisory  council  of  the  depart- 

5  ment  of  conservation,  make  all  reasonable  regulations  which  in  his  opinion 

6  will  tend  to  increase  the  public  enjojTnent  and  benefit  therefrom  and  to 

7  protect  and  conserve  the  water  supplies  of  the  commonwealth. 

1  Section  32.     The  forester,  subject  to  the  approval  of  the  commissioner  Appropriation. 

2  and  advisory  council  of  the  department  of  conservation,  may  expend  1919;  350,  \  42. 

3  such  sums  as  are  annually  appropriated  for  the  necessary  expenses  in- 

4  curred  under  section  thirty-one. 

1  Section  33.     In  'addition  to  lands  acquired  under  section  thirty  the  Additional 

2  commissioner  may  purchase  or  take  by  eminent  domain  and  hold  for  it  a  S"  forests. 

3  state  forests  lands  within  the  commonwealth  suitable  for  the  production  ||"{':3^°''' 

4  of  timber  to  the  extent  of  not  more  than  one  hundred  thousand  acres. 

5  The  land  shall  be  purchased  before  August  fifth,  nineteen  hundred  and 

6  thirty-five,  at  a  rate  not  exceeding  an  average  cost  of  five  dollars  per 

7  acre  or  at  such  price  as  the  general  court  may  from  time  to  time  deter- 

8  mine.    The  forester  shall  reclaim  the  said  lands  by  replanting  or  other- 

9  wise  in  order  to  produce  timber  and  to  protect  the  water  supply  of  the 
10  commonwealth. 

1  Section  34.     The   commissioner   may   make   rules   and   regulations  Rules  as  to 

2  relative  to  hunting  and  fishing  or  other  uses  of  any  such  land,  provided  forests^ 

3  that  such  rules  and  regulations  shall  be  consistent  with  all  laws  in  rela-  ^^^°'  '^°*'  ^  *' 

4  tion  to  the  protection  of  fish,  birds  and  quadrupeds. 

1  Section  35.     Towns  may  acquire  by  purchase,  gift  or  bequest  lands  Forests 

2  for  the  purpose  of  forestation  at  a  rate  not  exceeding  an  average  cost  of  towns^^^° 

3  five  dollars  per  acre  and  may  reclaim  and  plant  such  lands.    The  said  ^^^°'  ^°*'  ^  ^' 

4  department  may  upon  application  in  such  form  as  the  forester  may  pre- 

5  scribe  furnish  such  towns  free  of  charge  with  seedlings  for  the  planting 

6  of  their  lands. 

1  Section  36.     To  meet  the  expenditures  authorized  by  sections  thirty-  Appropriation. 

2  three  to  thirty-five,  inclusive,  the  said  department  may  expend  before  ^^"°'  ''°*'  ^ "' 

3  August  fifth,  nineteen  hundred  and  thirty-five,  such  simis  not  exceed- 

4  ing  three  million  dollars  as  the  general  com-t  may  from  time  to  time 

5  appropriate. 

1  Section  37.     Every  local  forest  warden,  in  addition  to  his  duties  pre-  Duties  of 

2  scribed  by  chapter  forty-eight,  shall  investigate  the  values  of  forest  lands,  wa^dinr^' 

3  the  character  and  extent  of  woodcutting  operations,  the  prevalence  of  Jgjgj  350, 1 42. 


1370  FORESTRY.  [CrAP.    132. 

insect  pests  injurious  to  forest  growths,  and  other  matters  affecting  the  4 
extent  and  condition  of  woodlands  in  his  town,  and  shall  report  thereon  5 
to  the  forester  at  such  times  and  in  such  form  as  he  requires.  6 

REFERENCES. 

Setting  fires  in  the  open  air,  and  state  forester's  power  in  relation  thereto,  Chap. 
48,  §§  13-15. 

Taxation  of  forest  land,  Chap.  61. 

Certain  duties  of  forest  wardens,  Chap.  48,  §§  9,  10. 

Reimbursement  of  towns  for  providing  protection  against  forest  fires.  Chap.  40, 

§11-  .  .  ^ 

Fish  and  game  deputies  to  give  notice  of  fires.  Chap.  130,  §  9. 


Ch.\p.  133.] 


DISPOSITION   OF   OLD    A>rD    IXFIRM   .^^EMALS. 


1371 


TITLE    XX. 


PUBLIC    SAFETY   AND   GOOD    ORDER. 


Chapter  133. 
Chapter  134. 
Chapter  135. 
Chapter  136. 
Chapter  137. 
Chapter  138. 

Chapter  139. 
Chapter  140. 
Chapter  141. 
Chapter  142. 
Chapter  143. 

Chapter  144. 
Chapter  145. 
Chapter  146. 


Chapter  147. 
Chapter  148. 


Disposition  of  Old  and  Infirm  Animals. 

Lost  Goods  and  Stray  Beasts. 

Unclaimed  and  Abandoned  Property. 

Observance  of  the  Lord's  Day. 

Gaming. 

Intoxicating  Liquors  and  Certain  Non-Intoxicating 

Beverages. 
Common  Nuisances. 
Licenses. 

Supervision  of  Electricians. 
Supervision  of  Plumbing. 
Inspection   and  Regulation   of,  and    Licenses   for. 

Buildings,  Elevators  and  Cinematographs. 
Tenement  Houses  in  Cities.  ■ 
Tenement  Houses  in  Towns. 
Inspection  of  Boilers,  Air  Tanks,  etc.     Licenses  of 

Engineers,  Firemen,  and  Operators  of  Hoisting 

Machinery. 
State  and  Other  Police,  and  Certain  Powers  and 

Duties  of  the  Department  of  Public  Safety. 
Fire  Prevention. 


CHAPTER     133. 

DISPOSITION   OF   OLD   AND.  INFIRM   ANIMALS. 


Sect. 

1.  Powers  and   duties  of  certain  officers 

relative  to  disabled  animals,  etc. 

2.  Payment   of  value   of  animals   taken. 

Costs,  etc. 


Sect. 

3.  Value  of  infected  animal. 

4.  Disposition  of  certain  horses  owned  by 

cities  or  towns. 


1  Section  1.     Any  officer  or  agent  of  any  society  incorporated  under  Powers  and 

2  the  laws  of  the  commonwealth  for  the  prevention  of  cruelty  to  animals  tain"^officerf ' 

3  or  for  the  care  and  protection  of  homeless  or  suffering  animals,  provided  abfedTnimfll' 

4  he  is  also  a  special  police  officer  appointed  under  section  ten  of  chapter  i88i_283. 

5  one  hundred  and  forty-seven,  or  a  constable,  sheriff  or  deputy  sheriff',  or  a  g- 1-  ^|'  |i|- 

6  police  officer  of  any  town,  may  take  possession  of  any  old,  maimed,  dis-  JM^.  sijs,  §  i". 

7  abled,  diseased  or  injiu-ed  animal  and  apply  to  a  district  court,  ■within 

8  whose  district  the  animal  is  taken,  for  process  to  cause  it  to  be  killed 

9  humanely.    If  the  owner  is  known,  and  can  after  reasonable  search  be 

10  found,  a  copy  of  such  application  shall  be  served  upon  him  in  hand  with 

11  an  order  of  court  to  appear  at  a  time  and  place  named  to  show  cause 

12  why  such  animal  should  not  be  killed  and  its  value  determined.    If  he 


1915,  125. 


1372 


LOST    GOODS   AND    STRAY   BEASTS. 


[Ch.\p.  134. 


Payment  of 
value  of  ani- 
mals taken. 
Costs,  etc. 
18S1,  283. 
P.  S.  96,  §  15. 
R.  L.  95,  §  13. 

Value  of  in- 
fected animal. 
1907,  363,  §  3. 


is  unknown,  or  cannot  after  reasonable  search   be  found,  the  court  13 

shall  order  notices  to  be  posted  in  two  public  places  in  the  town  where  14 

the  animal  was  taken,  stating  the  facts  of  the  case,  and  giving  twenty-  15 

four  hours'  notice  of  a  hearing  on  said  application.    At  such  hearing,  if  16 

it  appears  that  such  animal  is  so  old,  maimed,  disabled,  diseased  or  in-  17 

jured  as  to  be  unfit  for  humane  use,  the  court  shall  issue  process  directing  18 

any  officer  designated  herein  to  kill  the  same  humanely,  and  shall  deter-  19 

mine  its  value.    If  the  owner  is  aggrieved  by  such  determination  he  may  20 

petition  the  superior  coiu"t  for  the  assessment  of  his  damages  under  chapter  21 

seventy-nine.  22 

Section  2.     The  value  or  damages,  if  any,  determined  under  the  pre-  1 

ceding  section,  and  the  reasonable  costs  and  expenses  incurred  by  said  2 

officer  and  approved  by  the  court,  shall  be  paid  by  the  society  whose  3 

officer  or  agent  made  the  application  for  process.             i907. 363,  §  2.  4 

Section  3.     If  the  animal  taken  possession  of  as  aforesaid  has  any  1 

infectious  or  contagious  disease,  or,  for  any  reason,  might  lawfully  be  2 

destroyed  as  an  abatement  of  a  public  nuisance,  that  fact  shall  be  prima  3 

facie  evidence  that  the  animal  has  no  value.  4 


Disposition  of 
certain  horses 
owned  by 
cities  or 
towns. 
1908, 133. 


Section  4.  Whenever  any  horses  used  in  any  department  of  any  1 
town  shall,  by  reason  of  disability  or  disease,  become  unfit  for  use  therein,  2 
the  officer  in  charge  of  such  department,  in  cities  with  the  approval  of  3 
the  mayor,  and  in  towns  with  the  appro^•al  of  the  selectmen,  instead  of  4 
causing  such  horses  to  be  sold,  may  transfer  them  to  the  custody  of  the  5 
Red  Acre  Farm,  Incorporated,  or  any  charitable  society  incorporated  6 
in  the  commonwealth  for  the  prevention  of  cruelty  to  animals,  or  for  the  7 
care  and  protection  of  dumb  animals,  if  the  society  is  willing  to  accept  8 
the  custody  thereof,  to  be  disposed  of  as  the  society  may  deem  best;  9 
provided,  that  the  society'  upon  recei\"ing  any  such  horse  shall  give  a  10 
written  agreement  not  to  sell  the  horse  or  let  the  same  for  hire.  If  any  11 
horse  so  received  shall  thereafter  be  sold  or  let  for  hire,  the  proceeds  of  12 
such  sale  or  letting  shall  be  the  property  of  the  town,  and  custody  of  the  13 
horse  shall  revert  thereto.  14 


CHAPTER     134. 


LOST  GOODS   AND  STRAY   BEASTS. 


Sect. 

1.  Finder  of  lost  money  or  goods  to  give 

notice,  etc. 

2.  When    stray    beasts    are    taken     up, 

notice  to  be  given. 

3.  Restitution  of  property. 


Finder  of  lost 
money  or  goods 
to  give  notice, 
etc. 

C.  L.  142,  §  1. 
1698,9,  §  1. 
1727-8.  6,  §  1. 
1788,  55,  §  1. 
R.  S.  56,  §  1. 
G.  S.  79,  §  1. 
P.S.95,  §  1. 
R.  L.  94,  §  1. 
1918,237,1324. 


Sect. 

4.  Rights  of  finder  if  no  owner  appears. 

5.  Sale  of  strays. 

6.  Eights  of  owner  and  finder  of  strays. 

7.  Penalty  for  taking  away  strays. 


Section  1.     Any  person  who  finds  lost  money  or  goods  of  the  value  1 

of  three  dollars  or  more,  the  owner  of  which  is  unknown,  shall  within  2 

two  days  report  the  finding  thereof  to  the  officer  in  charge  at  a  police  3 

station  in  the  town  where  said  property  was  found,  or,  if  tiiere  is  no  4 

police  station,  post  notice  thereof  in  two  public  places  therein,  or,  in-  5 

stead  of  such  report  or  posting,  cause  notice  thereof  to  be  advertised  6 

in  a  newspaper  published  therein.                i9i9, 5.                      1920, 2.  7 

105  Mass.  163.  106  Mass.  286.  116  Mass.  42.  130  Mass.  176. 


Chap.  134.]  lost  goods  and  stray  beasts.  1373 

1  Section  2.     Except  as  otherwise  provided  in  chapter  one  hundred  ^^st"  aretLken 

2  and  thirty-three,  any  person  who  takes  up  a  stray  beast  shall  report,  "p.  "oti'^e  to  be 

3  post  or  advertise  the  finding  thereof,  in  the  manner  provided  in  the  c.  l  142,  §  i.^ 

4  preceding  section,  giving  a  description  of  the  color  and  the  natural  and  nss,  55,  §  1.' "' 

5  artificial  marks  of  such  beast;  otherwise  he  shall  not  be  entitled  to  com-  §!  i!  79!  §  2. 

6  pensation  for  any  expenses  which  he  may  incur  relative  thereto.  r. l.94',\  2, 

1918,257,  §325.  1919,5.  1920,2. 

1  Section  3.     If,  within  three  months  after  the  finding  of  stray  beasts.  Restitution 

2  or  within  one  year  after  the  finding  of  lost  money  or  goods,  the  owner  c.  £™i42,"§'3. 

3  appears  and,  except  as  otherwise  provided  in  section  two,  pays  all  reason-  nss!  Is,  §  3. 

4  able  ex-penses  incurred  by  the  finder  in  keeping  such  goods  or  beasts  and  ji*^s.'s6,'§V5',7. 

5  in  complying  with  this  chapter,  he  shall  have  restitution  of  the  money,  p;  |;  ^|;  ||  s/i. 

6  goods  or  beasts.  R  L-  o*.  §  *■ 

191S.257,  §327.  1919,5.  1920,2. 

1  ,  Section  4.     If  the  owner  of  lost  money  or  goods  does  not  appear  Rights  of 

2  within  one  year  after  the  finding  thereof,  they  shall  enure  to  the  finder,  ownir  ap°p'ears. 

3  provided  he  has  complied  with  section  one.       i7ss,  55,  §  3.       r.  s.  56,  §  e. 

G.  S.  79,  §  6.  R.  L.  94,  §  5.  1919,  5. 

P.  S.  95,  §  6.  1918,  257,  §  328.  1920,  2. 

1  Section  5.     If  the  owner  of  stray  beasts  does  not  appear  within  Saie  of  strays. 

2  three  months  after  the  finding  thereof  and  prove  title  thereto,  the  Hlf,  h.  §'2. 

3  finder  may  sell  them  by  public  auction,  first  giving  notice  of  such  sale,  §;  1 79;  §  g.' 

4  at  least  four  days  before  the  time  of  sale,  in  two  public  places  in  the  r.l.m',|1). 

5  town  where  the  beasts  were  found. 

1918,257,  §329.  1919,5.  1920,2. 

1  Section  6.     If  the  owner  of  stray  beasts  appears  within  one  year  Rights  of 

2  after  the  finding  thereof,  and  proves  title  thereto,  he  shall,  if  they  have  findlrof"strays. 

3  not  been  sold  under  the  preceding  section,  have  restitution  thereof  upon  fra^;"^!/'' 

4  payment,  except  as  provided  in  section  two,  of  all  reasonable  expenses  Jgis'^fg^' 

5  incurred  by  the  finder  in  keeping  such  beasts  and  in  complying  with  |f^|'||'||- 

6  this  chapter;  but  if  they  have  been  sold  he  shall  be  entitled  to  receive  c.g^railg. 

7  the  proceeds  of  the  sale  after  deducting  the  ex-penses  aforesaid.     If  no  r'.  l.  94,  §  7. 

8  such  owner  appears  within  said. year  the  beasts,  or  the  proceeds,  shall  1919; 5.  ' 

9  enure  to  the  finder,  provided  he  has  complied  with  this  chapter.  ^^^°'  ^■ 

1  Section  7.     Any  person  who  takes  away  a  beast  taken  up  as  a  stray.  Penalty  for 

2  without  paying  all  lawful  charges  in  relation  thereto,  shall  forfeit  to  the  stray!.  "^"^ 

3  finder  double  the  amount  of  such  charges,  but  not  more  than  the  value  f698',9!§'i*' 

4  of  the  beast  at  the  time  of  such  taking  away. 


1788,  55,  §  5. 

P.  S.  95,  §  11. 

1919,  5. 

R.  S.  56,  §  11. 

R.  L.  94,  §9. 

1920, 2. 

G.  S.  79,§  11. 

1918,257,  §  332. 

REFERENCES. 

Provisions  prohibiting  the  leading,  riding,  driving,  or  sale  by  auction  of  certain 
horses  on  any  public  way,  Chap.  272,  §  78. 

Provisions  as  to  disposition  of  old  and  infirm  aniinals  by  certain  societies,  Chap.  133. 

Disposition  of  money,  goods  or  other  property  that  comes  into  the  possession  of  a 
member  of  a  city  police  department,  Chap.  135,  §§  7-11. 

Disposition  of  money,  goods  or  other  property  that  comes  into  the  possession  of 
a  public  officer  or  other  employee  of  the  metropohtan  district  commission,  Chap. 
92,  §§  89-94. 


1374 


UNCLAIMED   AND   AB.\NDONED   PROPERTY. 


[Ch.U'.    135. 


CHAPTER     135, 


UNCLAIMED   AND   ABANDONED   PROPERTY. 


Sect. 

1.  Publication    of    unclaimed    effects    of 

passengers. 

2.  Sale  of  unclaimed  articles. 

3.  Proceeds  to  be  paid  to  commonwealth. 

4.  Penalty    for    failure    to    comply    with 

certain  provisions. 
6.  Perishable  articles  maj'  be  sold. 
6.  Sale  of  unclaimed  goods  carried  by  a 

railroad  or  vessel  or  by  express. 


Sect. 

7.  Disposition  of  stolen,  etc.,  property  by 

police  officers. 

8.  Sale  of  such  property,  etc. 

9.  If  perishable,  etc.,  how  sold. 

10.  Proceeds,  disposal  of. 

1 1 .  When  owner  to  be  paid  if  he  applies. 

12.  Timber  carried  away  by  flood  may  be 

taken  by  owners,  etc. 


Publication  of 
unclaimed 
effects  of 
passengers. 
1851,  147,  §  1. 
G.  S.  80,  §  1. 
P.  S.  96.  §  1. 
R.  L.  95,  §  1. 
6  Allen,  240. 


Sale  of  tin- 
claimed  articles. 
1851,  147,  §  2. 
G.  S.  80.  §  2. 
P.  S.  96,  §  2. 
R.  L.  95,  §  2. 


Section  1.     Railroad  corporations  and  proprietors  of  steamboats  en-  1 

gaged  in  the  transportation  of  passengers  shall  semi-annually,  on  the  2 

first  Mondays  of  January  and  July,  publish,  in  one  newspaper  at  least  3 

in  every  county  where  such  corporation  or  proprietors  have  a  pas-  4 

senger  station  or  office,  a  descriptive  list  of  all  trunks,  bags,  valises,  5 

parcels  and  passengers'  effects  which  have  been  left  and  then  remain  6 

unclaimed  at  any  passenger  station  or  office,  or  in  the  possession  of  any  7 

such  corporation,  proprietors  or  their  agents,  and  the  list  shall  indicate  8 

all  such  specific  marks  as  may  serve  to  identify  the  same.  9 

Section  2.     If  at  the  expiration  of  six  months  after  such  advertise-  1 

ment  any  of  the  articles  so  advertised  remain  unclaimed,  said  corpora-  2 

tion  or  proprietors  having  possession  thereof  shall  give  notice  to  the  3 

aldermen  of  the  city  or  selectmen  of  the  town  where  the  articles  may  4 

be,  who  shall  cause  them  to  be  examined,  and  may  order  them  to  be  5 

sold  by  public  auction  upon  publication,  in  the  manner  set  forth  in  the  6 

preceding  section,  of  notice  of  the  time  and  place  of  sale,  or  may  order  7 

them  to  be  again  advertised  and  to  remain  another  six  months  before  8 

being  sold.  9 


Proceeds  to 
be  paid  to 
commonwealth. 
1851,  147.  §  3. 
G.  S.  80,  §  3. 


Section  3.  The  proceeds  of  all  articles  so  sold,  after  deducting  costs  1 
of  storage  and  all  expenses  incurred  in  complying  with  sections  one  and  2 
two,  shall  be  paid  to  the  commonwealth.        P.  s.  96,  §  a.         r.  l.  95,  §  a.  3 


Penalty  for 
failure  to  _ 
comply  with 
certain  pro- 
visions. 
1851.  147,  §  4. 
G.  S.  SO,  §  4. 


Section  4.     Any  such  corporation  or  proprietor  neglecting  or  omit-  1 

ting  so  to  advertise  and  cause  any  such  effects  to  be  examined  shall  be  2 

liable  for  all  damages  caused  thereby,  and  shall  also  forfeit  one  hundred  3 

dollars.                            p.  s.  96,  §  4.                              r.  l.  95,  §  4.  4 


Perishable 
articles  may 
be  sold. 
1857,  237. 
G.  S.  SO,  §  5. 
P.  S.  96,  §  S. 
R.  L.  95,  §  5. 


Section  5.     When  a  common  carrier  has  transported  fresh  meats,  1 

fresh  fish,  shellfish,  fruit  or  vegetables  to  theu*  destination,  such  carrier  2 

may,  in  the  exercise  of  a  reasonable  discretion,  after  notice  to  the  owner  3 

or  consignee  thereof  of  the  arri\-al  of  such  goods  and  his  refusal  or  omis-  4 

sion  to  pay  the  freight  and  proper  charges  thereon  and  to  receive  and  5 

take  them  away,  or  without  such  notice  and  refusal  or  omission  if  such  6 

owner  or  consignee  thereof  cannot,  on  reasonable  inquiry,  be  found,  sell  7 

the  same  at  public  or  private  sale  without  advertising.     The  proceeds  8 

thereof,  after  deducting  the  amount  of  the  freight  thereon  and  the  9 

charges  and  expenses  of  sale,  shall  be  paid  to  tlie  owner  or  consignee.  10 


Chap.  135.]  uncl.\imed  and  ab.andoned  property.  1375 

1  Section  6.     If  goods  carried  by  a  railroad  company,  by  express  or  Saieofun- 

2  in  a  vessel  are  not  called  for  by  the  owner  or  consignee  within  one  year  carried  by°a 

3  after  the  date  of  their  receipt  at  the  place  of  consignment,  they  may  be  vessei'or°by 

4  sold  by  public  auction,  notice  of  the  time  and  place  of  sale,  containing  a  ilSffsg. 

5  descriptive  list  of  all  such  goods  with  all  such  specific  marks  as  may  p^  s''9g^^s§  e-g 

6  serve  to  identify  the  same,  first  being  published  once  a  week  for  three  R-  l.  95, 

7  successive  weeks  in  a  newspaper,  if  any,  published  in  the  town  where  lais,  257, 

8  such  sale  is  to  take  place,  and  also  in  the  town  to  which  they  were  igig.'s. 

9  consigned,  otherwise  in  the  newspaper  published  nearest  thereto.     The  2oiVass.  564. 

10  proceeds,  after  deducting  costs  of  transportation,  storage,  advertising  ^°^  ^'^^'^^-  *^^- 

11  and  sale,  shall  be  paid  to  the  owner,  upon  demand  and  satisfactory 

12  proof  of  ownership,  within  three  years  after  the  sale;  otherwise  to  the 

13  commonwealth. 

1  Section  7.     If  property  which  has  been  stolen,  lost,  abandoned  or  Disposition  of 

2  taken  from  a  person  imder  arrest  comes  into  the  possession  of  a  member  property  by 

3  of  the  police  department  of  a  city  by  virtue  of  his  office,  he  shall  deliver  issorisfrri'. 

4  the  same  to  the  officer  or  member  of  the  department  designated  by  the  ^-  ^  ^^j  \  ^^■ 

5  rules  thereof,  and  shall  thereupon  be  relieved  from  further  responsibility 

6  therefor.     The  officer  or  member  to  whom  such  property  is  so  delivered 

7  shall  give  notice  as  provided  in  section  one  of  chapter  one  hundred  and 

8  thirty-fom-. 

1  Section  8.     If  such  property  remains  unclaimed  in  the  possession  of  prope/ty^ete. 

2  such  police  department  or  member  thereof  for  six  months,  and  the  ^f^j's^*' 

3  owner  thereof  or  his  place  of  abode  or  business  is  unknown,  such  de-  P-  s.  9|  §  11. 

4  partment  may  sell  the  same,  excepting  money  unclaimed,  by  public 

5  auction,  notice  of  the  time  and  place  of  sale,  with  a  description  of  the 

6  property  to  be  sold,  first  being  given  by  publishing  the  same  once  in 

7  each  of  three  successive  weeks  in  a  newspaper  published  in  such  city. 

1  Section  9.     Such   property,    if   perishable   or   liable   to   deteriorate  if  perishable. 

2  greatly  in  value  by  keeping  or  the  value  of  which  will  probably  be  less  isso,  155,  §  4. 

3  than  the  ex-pense  of  keeping  the  same,  may  be  sold  by  public  auction  r.  l.  95,  §  w. 

4  within  said  six  months  in  accordance  with  the  rules  of  the  department, 

5  reasonable  notice  of  the  time  and  place  of  sale  first  being  given  by  pub- 

6  lishing  the  same  in  a  newspaper  published  in  such  city. 

1  Section  10.    The  proceeds  of  such  sale,  or  the  balance  of  such  un-  Proceeds,  dis- 

2  claimed  money,  after  deducting  all  reasonable  charges  and  expenses  ilEo,  155,  §  5. 

3  incurred  on  such  property,  shall  be  paid  into  the  city  treasury.  r.l.95,Vu. 

1  Section  11.     If,  within  two  years  and  six  months  after  such  money  when  owner 

2  has  come  into  the  possession  of  a  member  of  the  police  department  of  1,°  appifes. ' 

3  a  city  or  within  two  years  after  such  sale  of  other  property,  the  owner  J.* f^'gl^^j  \i; 

4  claims  and  proves  ownership  thereof,  the  unclaimed  balance  of  such  ^-  ^-  ^^'  5 12. 

5  money  or  the  proceeds  of  such  sale,  after  deducting  all  reasonable 

6  charges  and  expenses,  shall  be  paid  to  him,  upon  the  order  of  the  head 

7  of  such  department. 

1  Section  12.     The  owner  of  a  log,  mast,  spar  or  other  timber  carried  J^^"y  bygood* 

2  by  flood  into  land  adjoining  any  river,  stream  or  pond  may,  within  six  "y^o^ners'^etc. 

3  months,  remove  the  same  from  said  land  upon  paying  or  tendering  to  i^so,  31. 


1376 


OBSERV.\NCE    OF  THE    LORD  S   DAT. 


[ClLiP.    136. 


1793.  42, 
§§  4,  6. 
1S04,  5. 
R.  S.  62.  §  1. 
1841.  26. 
G.  S.  78.  §  1. 
P.  S.  94,  §  1. 


the  owner  or  occupant  thereof  such  reasonable  damages  as  may  be  4 

caused  by  such  removal;  and  if  he  does  not  so  remove  it  within  said  six  5 

months,  or  otherwise  agree  with  the  owner  or  occupant  of  such  land,  6 

it  shall  be  the  property  of  such  owner  or  occupant.  7 

E.  L.  93.  §  1.  lOG  Mass.  286. 


REFERENCES. 

Provisions  where  lost  money  or  goods  or  stray  beasts  are  retained  by  the  finder 
other  than  a  member  of  city  police.  Chap.  134. 

Disposition  of  old  and  infirm  animals,  Chap.  1.33. 

Disposition  of  money,  goods  or  other  property  that  comes  into  the  possession  of 
a  police  officer  or  other  employee  of  the  metropohtan  district  commission,  Chap. 
92,  §§  89-94. 

Carrier  not  to  be  liable  for  failure  to  deliver  goods  when  sold  to  satisfy  a  carrier's 
lien  or  when  sold  because  unclaimed,  perishable  or  hazardous,  Chap.  108,  §  25. 


CHAPTER     136. 

OBSERVANCE  OF   THE  LORD'S   DAY. 


Sect. 

1.  "Lord's  day"  defined. 

2.  Being   present   at    or   taking   part   in 

certain  entertainments  on  Lord's  day 
prohibited. 

3.  Maintaining  certain  public  exhibitions 

prohibited. 

4.  Certain  public  entertainments  may  be 

licensed.     Revocation. 

5.  Keeping   open    ahop,   etc.,   and   doing 

certain  work,  etc.,  prohibited. 

6.  Limit  of  operation  of  preceding  section. 
7;  Sale  of  certain  articles  on  Lord's  day 

licensed. 

8.  Pro\4sions  of  licenses.  Fee.  Revocation. 

9.  Certain   work   may   be   performed   on 

Lord's  day. 

10.  Certain  parades  with  music  allowed  on 
Lord's  day. 
Firemen   may   parade   with   music   on 

second  Sunday  of  June. 
Persons   keeping    places   of   entertain- 
ment, etc.,  to  entertain  only  travelers, 
etc. 

13.  Civil    process    not    to    be    served    on 
Lord's  day. 


11 


12. 


Sect. 

14.  Penalty  for  rude  behavior. 

15.  Limitation   of   the   commencement   of 

prosecutions. 

16.  Sheriffs,  etc.,  to  inform  of  offences. 

17.  Penalty  for  discharging  firearms,  etc., 

on  Lord's  day. 

18.  Innholders  who  permit  implements  of 

gaming  to  be  used,  etc. 

19.  Department  of  public  utilities  may  au- 

thorize   running    trains   and   steam- 
boats on  Lord's  day. 

20.  This  chapter  not  a  defence. 

CERT-IIN   SPORTS  AND  GAMES  PEKMITTED   ON 
THE    lord's   D.\Y. 

21.  Certain  sports  and  games  permitted. 

22.  To  be  held  only  on  licensed  places. 

23.  To    be    conducted    under   regulations, 

etc. 

24.  No  admission  to  be  charged,  etc. 
2.5.  Revocation  of  permit. 

26.  Manner  of  accepting  sections  21  to  28, 

inclusive. 

27.  Resubmission  of  said  sections. 

28.  Limit  of  application  of  said  sections. 


"Lord'sday" 
defined. 
1782,  23,  §  6. 
1791,58,  §  4. 


Being  present 
at  or  taking 
part  in  certain 
entertainments 
on  Lord's  day 
prohibited. 
1760-1,20,  §9. 
1782.  23, 
§§1,7. 
1791,  58, 
U  I.  5. 
1796.  89,  §  1. 
R.  S.  50,  §  5. 
1858, 151. 


Section  1.     The  Lord's  day  shall  include  the  time  from  midnight  to     1 
midnight.  R-  s.  so,  §  4.  i844,  leo,  §  2.  2 

G.  S.  84,  §  12.  p.  S.  98,  §  16.  R.  L.  98,  §  16. 


Section  2.  Wlioever  on  the  Lord's  day  is  present  at  a  game,  sport, 
play  or  public  diversion,  except  a  concert  of  sacred  music,  a  public 
entertainment  duly  licensed  as  provided  in  section  four  or  a  free  open 
air  concert  given  by  a  town,  or  by  license  of  the  mayor  or  the  selectmen, 
upon  a  common  or  public  park,  street  or  square,  shall  be  punished  by 
a  fine  of  not  more  than  five  dollars.  Whoever  on  the  Lord's  day  takes 
part  in  any  game,  sport,  play  or  public  diversion,  except  as  aforesaid, 
shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars.     This  and  the 


Chap.  13(3.]  observ.^nce  of  the  lord's  day.  1377 

9  following  section  shall  not  apply  to  sports  or  games  conducted  in  ac-  g.  s.  s4,  §  4. 
10  cordance  with  sections  twenty-one  to  twenty-eight,  inclusive.  issv, 391,  ii. 

1895.  434,  5§  1,4.  1908,  38.5,  §  1.  1919,5. 

R.  L.  98,  §§  1.  2,  5.         1918,  257,  §§  330.  338.  1920,  2;  240. 

1904,  460,  §§  1-3. 

1  Section  3.     Whoever  offers  to  view,  sets  up,  establishes,  maintains.  Maintaining 

2  or  attempts  to  set  up,  establish  or  maintain,  or  promotes  or  assists  in  exhibUiSns  '" 

3  such  attempt,  or  promotes,  or  aids,  abets  or  participates  in  offering  to  c.'l.''i33' 

4  view,  setting  up,  establishing  or  maintaining  any  public  entertainment  1B92-3, 22,  §  1. 

5  on  the  Lord's  day,  except  a  concert  of  sacred  music,  or  a  free  open  air  Jyoy-s'.^'Vi'' 

6  concert  given  as  provided  in  the  preceding  section,  unless  such  public  H''.°"g'-'^' 

7  entertainment  shall  be  in  keeping  with  the  character  of  the  day  and  not  1782, 23, 

8  inconsistent  with  its  due  observance  and  duly  licensed  as  provided  in  iroi.  ss, 

9  the  following  section,  or  whoever  on  the  Lord's  day  acts  as  proprietor,  1796, Iq,  §  1. 

10  manager  or  person  in  charge  of  a  game,  sport,  play  or  public  diversion,  f^  f  |°' 

11  except  a  public  entertainment  licensed  under  the  follo\Aing  section,  a  con-  ^-^^  ^*-  ^^  ^• 

12  cert  of  sacred  music,  or  a  free  open  air  concert  given  as  aforesaid,  shall  i*';^'  '■^^■ 

13  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars. 

p.  S.  98,  §H,2.  1904,  4fi0,  §§  1-3.  1919,5. 

1887,  391.  mOS,  385,  §  1.  1920,  2. 

1895,  434,  §§1,2,  4.  1918,  257,  §§  336,  338.  185  Mass.  551. 
R.  L.  98,  §§  1,2,5. 

1  Section  4.     Except  as  provided  in  section  one  hundred  and  five  of  ^n"*ftainments 

2  chapter  one  hundred  and  forty-nine,  the  mayor  of  a  city  or  the  selectmen  pay  be 

3  of  a  town  may,  upon  written  application  describing  the  proposed  enter-  Revocation 

4  tainment,  grant,  upon  such  terms  or  conditions  as  they  may  prescribe,  a  1909!  189! 

5  license  to  hold  on  the  Lord's  day  a  public  entertainment,  in  keeping 

6  with  the  character  of  the  day  and  not  inconsistent  with  its  due  observ- 

7  ance,  to  which  admission  is  to  be  obtained  upon  payment  of  money 

8  or  other  \aluable  consideration;  provided,  that  no  such  license  shall  be 

9  granted  to  have  effect  before  one  o'clock  in  the  afternoon,  nor  shall  it 

10  have  effect  unless  the  proposed  entertainment  shall,  upon  application 

11  accompanied  by  a  fee  of  one  dollar,  have  been  approved  in  writing  by 

12  the  commissioner  of  public  safety  as  being  in  keeping  with  the  character 

13  of  the  day  and  not  inconsistent  with  its  due  observance.     Any  such 

14  license  may,  after  notice  and  a  hearing  given  by  the  mayor  or  selectmen 

15  issuing  the  same,  or  by  said  commissioner,  be  suspended,  revoked  or 

16  annulled  by  the  officer  or  board  giving  the  hearing. 

Whoever    on    the   Lord's   day   keeps   open   his  shop,  Keeping  open 

2  warehouse  or  workhouse,  or  does  any  manner  of  labor,  business  or  doing  certain 

3  work,  except  works  of  necessity  and   charity,  shall   be  punished  by  pmhibfted. 

4  a  fine  of  not  more  than  fifty  dollars.  c.  l.  133,  §§  1,2. 

1692-3,  22,  §  1.  7"Gray,  164.  128  Mass.  148,  594. 

1716-7,  13,  §  1.  8  Gray,  384,  553.  131  Mass.  156,  546. 

1727-8,  5,  §§  1,4.  11  Gray,  308.  135  Mass.  113. 

1760-1,  20,  §§  2,  9.  15  Gray,  433.  130  Mass.  384. 

1782,  23,  §  1.  9  Allen.  118,452.  139  Mass.  74. 

1791,  58,  §  1.  10  Allen,  18.  140  Mass.  199. 

1796,  89,  §  1.  11  Allen,  209.  143  Mass.  28,  167. 

R.  S.  50,  §  1.  12  Allen.  187.  144  Mass.  359,  362,  363. 

G.  S.  84,  §  1.  13  Allen,  559.  145  Mass.  353. 

1862,  152.  14  Allen,  20,  165,  475,  4,85.  155  Mass.  543. 

P.  S.  98,  §  2.  97  Mass.  45,  166,  407.  411.  159  Mass.  101. 

1895,  434,  §§  2,  4.  101  Mass.  30,  366.  168  Mass.  519. 

R.  L.  98.  §§2,5.  103  Mass.  188.  170  Mass.  .560. 

1904,  460,  §  2.  105  Mass.  399.  176  Mass.  5,  104. 

1909.  423,  §  4.  107  Mass.  251,439.  185  Mass.  551. 

1918,  257,  §§  336,  338.  108  Mass.  517.  190  Mass.  578. 

1919,  5.  109  Mass.  398.  194  Mass.  151. 

1920,  2.  112  Mass.  368, 467.  199  Mass.  534. 
6  Mass.  76.  115  .Vlass.  326.  200  Mass.  514. 
13  Mass.  324.  117  Mass.  65,  142.  208  Mass.  528. 

12  Met.  24.  118  Mass.  195.  213  Mass.  207. 

13  Met.  284.  120  Mass.  490.  221  Mass.  70. 
2  Cush.  556.  121  Mass.  .301.  225  Mass.  445. 
4  Cush.  243.  122  Mass.  40.  125  U.  S.  555. 
10  Cush.  257.  127  Mass.  123. 


1378 


OBSERVANCE    OF   THE    LORD  S   DAY. 


[Chap.  136. 


Limit  of 

operation  of 

preceding 

section. 

R.  S.  SO,  §  10. 

G.  S.  84,  §9. 

P.  S.  98.  §  13. 

1886,  82. 

1887,  391,  §  2. 
1893,  41. 
1895,  434,  §  2. 
1900.  440. 
1901.80. 

R.  L.  98, 
§§  3.4. 
1902.414,  §  1. 
1908.  126,  §  1; 
273,  §  1;  SS.'i; 
343. 

1909,420,  §  2; 
423,  §  o. 
1910.  327. 
1911,328,  §  1. 
1914,757,  §  1. 

1916,  148,  §  1. 

1917,  207. 

13  Allen,  559. 
122  M.iss.  40. 

144  Mass.  a.TO. 

145  Mass. 
99,  430. 

149  Mass.  68. 
176  Mass.  104. 
194  Mass.  151. 
221  Mass.  70. 


Section  0.  The  preceding  section  .shall  not  prohibit  the  manu-  1 
facture  and  distribution  of  steam,  gas  or  electricity  for  illuminating  2 
purposes,  heat  or  motive  power;  the  distribution  of  water  for  fire  or  3 
domestic  purposes;  the  use  of  the  telegraph  or  the  telephone;  the  4 
retail  sale  of  drugs  and  medicines,  or  articles  ordered  by  the  prescription  5 
of  a  physician,  or  mechanical  appliances  used  by  physicians  or  surgeons;  6 
the  retail  sale  of  tobacco  in  any  of  its  forms  by  licensed  innholders,  7 
common  victuallers,  druggists  and  newsdealers  whose  stores  are  open  8 
for  the  sale  of  newspapers  every  day  in  the  week;  the  retail  sale  of  ice  9 
cream,  soda  water  and  confectionery  by  licensed  innholders  and  druggists,  10 
and  by  such  licensed  common  victuallers  a.s  are  not  also  licensed  to  sell  11 
certain  non-intoxicating  beA-erages,  as  defined  in  section  one  of  chapter  12 
one  hundred  and  thirty-eight,  and  who  are  authorized  to  keep  open  their  13 
places  of  business  on  the  Lord's  day;  the  sale  of  ice  cream,  soda  water,  14 
confectionery  or  fruit  by  persons  licensed  under  the  following  section  or  15 
the  keeping  open  of  their  places  of  business  for  the  sale  thereof;  work  16 
lawfully  done  by  persons  working  under  permits  granted  under  section  17 
nine;  the  sale  by  licensed  innholders  and  common  victuallers  of  meals  IS 
such  as  are  usually  served  by  them,  consisting  in  no  part  of  intoxi-  19 
eating  liquors,  which  meals  are  cooked  on  the  premises  but  are  not  20 
to  be  consumed  thereon;  the  operation  of  motor  vehicles;  the  letting  21 
of  horses  and  carriages  or  of  boats;  unpaid  work  on  pleasure  boats;  22 
the  running  of  steam  ferry  boats  on  established  routes;  the  running  23 
of  street  railway  cars;  the  running  of  steamboat  lines  and  trains  or  24 
of  steamboats,  if  authorized  under  section  nineteen;  the  preparation,  25 
printing  and  publication  of  newspapers,  or  the  sale  and  delivery  26 
thereof;  the  wholesale  or  retail  sale  and  delivery  of  milk,  or  the  27 
transportation  thereof,  or  the  delivery  of  ice  cream;  the  making  of  28 
butter  and  cheese;  the  keeping  open  of  public  bath  houses;  the  mak-  29 
ing  or  selling  by  bakers  or  their  employees,  before  ten  o'clock  in  the  30 
forenoon  and  between  the  hours  of  four  o'clock  and  half  past  six  o'clock  31 
in  the  afternoon,  of  bread  or  other  food  usually  dealt  in  by  them;  the  32 
selling  of  kosher  meat  by  any  person  who,  according  to  his  religious  33 
belief,  observes  Saturday  as  the  Lord's  day  by  closing  his  place  of  busi-  34 
ness  during  the  day  until  six  o'clock  in  the  afternoon  or  the  keeping  open  35 
of  his  shop  on  the  Lord's  day  for  the  sale  of  kosher  meat  between  the  36 
hours  of  six  o'clock  and  ten  o'clock  in  the  forenoon;  the  performing  of  37 
secular  business  and  labor  on  the  Lord's  day  by  any  person  who  con-  38 
scientiously  believes  that  the  seventh  day  of  the  week  ought  to  be  ob-  39 
served  as  the  Sabbath  and  actually  refrains  from  secular  business  and  40 
labor  on  that  day,  if  he  disturbs  no  other  person  thereby;  the  carrying  41 
on  of  the  business  of  bootblack  before  eleven  o'clock  in  the  forenoon;  42 
the  digging  of  clams;  the  icing  and  dressing  of  fish;  the  cultivation  43 
of  land,  and  the  raising,  harvesting,  conser^4ng  and  transporting  of  44 
agricultural  products  during  the  existence  of  war  between  the  United  45 
States  and  any  other  nation  and  until  the  first  day  of  January  following  46 
the  termination  thereof;  the  sale  of  catalogues  of  pictures  and  other  47 
works  of  art  in  exhibitions  held  by  societies  organized  for  the  purpose  48 
of  promoting  education  in  the  fine  arts  or  the  exposure  of  photographic  49 
plates  and  films  for  pleasure,  if  the  pictures  to  be  made  therefrom  are  50 
not  intended  to  be  sold  and  are  not  sold.  51 


Sale  of  certain 
articles  on 

Uransed.^'^        tliis  aud  the  following  section  or  has   accepted  corresponding  provi- 


Section  7.     In  Bcston,  and  in  any  other  city  or  town  which  accepts     1 


Chap.  13G.]  observ.vnce  of  the  lord's  day.  1379 

3  sions  of  earlier  laws,  in  a  city  by  its  city  council  or  in  a  town  by  the  1909, 42.3.  §§  1, 

4  voters  of  the  town  at  an  annual  town  meeting,  the  licensing  board  or  1918,257, 

5  officer  in  such  city  or  town,  or  if  there  is  no  such  board  or  officer  the  H^.'s. 

6  aldermen  of  a  city,  or  if  there  are  no  aldermen  the  city  council,  with  225°Mass.  104. 

7  the  approval  of  the  mayor,  or  the  selectmen   of  a  town,  may  grant, 

8  to  any  reputable  person  who  on  secular  days  is  a  retail  dealer  in  ice 

9  cream,  confectionery,  soda  water  or  fruit  and  who  does  not  hold  a 

10  license  for  the  sale  of  certain  non-intoxicating  beverages,  as  defined  in 

11  section  one  of  chapter  one  hundred  and  thirty-eight,  a  license  to  keep 

12  open  his  place  of  business  on  the  Lord's  day  for  the  sale  of  ice  cream, 

13  confectionery,  soda  water  or  fruit. 

1  Section  8.     Every  license  granted  under  the  preceding  section  shall  ^f™™^""* 

2  specify  the  street  or  place  and  the  number,  if  anv,  or  if  there  is  no  f^e. 

3  number,  the  location  of  the  place  of  business  in  which  the  license  is  i909, 423,  §  2. 

4  to  be  exercised,  and  the  license  shall  not  be  valid  in  any  other  place. 

5  A  license  if  granted  prior  to  May  first  in  any  year  shall  take  effect  on 

6  that  day,  but  if  granted  thereafter  it  shall  take  effect  on  the  date  thereof, 

7  and  all  licenses  shall  ex-pire  on  April  thirtieth  of  each  year.    The  fee  for 

8  such  license  shall  not  be  more  than  five  dollars  a  year,  and  it  may  be  sus- 

9  pended  or  revoked  by  the  officer  or  board  granting  the  same. 

1  Section  9.     The  police  commissioner  of  Boston,  or  any  member  of  ^"^J^jj"  '^"/} 

2  the  police  department  having  a  rank  not  lower  than  that  of  captain  formed  on 

11-  11  •  1  •      •  1  1   '    p        p  !•  I  Lord  s  day. 

3  and  designated  by  said  commissioner,  or  the  chief  01  police  or  other  1909, 420.  §  1. 

4  officer  in  charge  of  the  police  department  of  any  other  city  or  of  any 

5  town,  upon  such  terms  and  conditions  as  he  deems  reasonable,  may 

6  issue  a  permit  for  the  performance  on  the  Lord's  day  of  necessary  work 

7  or  labor  which  in  his  judgment  could  not  be  performed  on  any  other 

8  day  without  serious  suffering,  loss,  damage  or  public  inconvenience. 

9  Such  permit  shall  cover  not  more  than  one  day  and  shall  not  be  issued 
10  more  than  six  days  prior  to  the  day  for  which  it  is  issued. 

1  Section  10.     Any  post  of  the  Grand  Army  of  the  Republic,  camp  of  p^^''^^^" 

2  the  United  Spanish  War  Veterans  or  post  of  the  American  Legion  may  «;i'h  music 

,•1.  I'll  I  •!  allowed  on 

3  parade  with  music  on  the  day  designated  by  tlie  national  encampment  Lord's  day. 

4  of  the  grand  army  as  memorial  Sunday  next  preceding  Memorial  Day,  1920',  hi! 

5  for  the  special  purpose  of  attending  divine  service  on  that  day;  pro- 

6  \dded,  that  the  music  shall  be  suspended  while  passing  -within  two 

7  hundred  feet  of  any  place  of  public  worship  where  ser\'ices  are  being  held. 

1  Section  11.     Any  company  or  association  of  firemen,  whether  in  Firemen  may 

2  active  service  or  former  members  of  a  fire  department,  may  parade  mj^ic^on' 

3  with  music  on  firemen's  memorial  day,  the  second  Sunday  of  June  in  ofXne. ""  "^ 

4  each  year,  for  the  special  purpose  of  decorating  the  graves  of  deceased  ^^°^'  ^^®- 

5  firemen;   provided,   that  the  music  shall  be  suspended  while  passing 

6  within  two  hundred  feet  of  any  place  of  public  worship  where  services 

7  are  being  held. 

1  Section  12.     Whoever,  keeping  a  house,   shop,   cellar  or  place  of  klip?"!  places 

2  public  entertainment  or  refreshment,  entertains  therein  on  the  Lord's  ofentertain- 

01  1  11  ir  ment,  etc.,  to 

3  day  any  persons  other  than  travelers,  strangers  or  lodgers,  or  sutlers  entertain  only 

4  such  persons  on  said  day  to  remain  therein  or  in  the  yards,  orchards  or  1692-3,22,  §3. 

5  fields  appertaining  thereto,  drinking  or  spending  their  time  idly  or  at  1727-8,  .5,  §  3. 


1380 


OBSERVANCE    OF   THE    LORD  S   DAY. 


[Chap.  13(5. 


1760-1,20,  §4. 
1782,  23, 
§§  4,  7. 
1791,  5S,  §  .3. 
1796,  89,  §  1. 
1832,  166,  §  5. 
R.  S.  47,  §  13; 
50,  §  3. 
1837,  242,  §  1. 


play,  or  in  doing  any  secular  business,  shall  for  a  first  offence  be  pun-  (i 

ished  by  a  fine  of  not  more  than  fifty  dollars  for  each  person  so  enter-  7 

tained  or  suft'ered  so  to  remain;    and  for  a  subsequent  offence  by  a  fine  8 

of  not  more  than  one  hundred  dollars;   and  if  convicted  three  times,  he  9 

shall  thereafter  be  disqualified  to  hold  a  license.              i844,  leo.  10 

G.  S.  S4,  §  3.  p.  S.  98,  §  4.  2  Pick.  139. 

1864,  79.  R.  L.  98,  §  6.  117  Mass.  116. 


Civil  process 
not  to  be 
served  on 
Lord's  day. 
17S2,  23,  §  11. 
1791,  58,  §  9. 
R.  S.  50,  §  7. 


Section  1.3.  A  civil  process  shall  not  be  served  or  executed  on  the 
Lord's  day,  and  such  ser\-ice  if  made  shall  be  void,  and  the  person  who 
serves  or  executes  it  shall  be  liable  in  damages  to  the  person  aggrieved 
in  like  manner  as  if  he  had  no  such  process.  g.  s.  84,  §  a. 

p.  S.  98.  §  6.  R.  L.  98,  §  8.  140  Mass.  147. 


rude"beha°vior.        SECTION  14.     Whocvcr  ou  the  Lord's  day  bchaves  rudcly  or  iudcccntly  1 

i79i'ss'§7  i'^  ^'^.V  house  of  public  worship  shall  be  punished  by  a  fine  of  not  more  2 

R.  s.'50,'§8.  than  ten  dollars.            g.  s.  84,  §7.              p.  s.9s,  §7.            r.  l.  98,  §9.  3 

tiJrcommenie-       SECTION  15.     Prosccutions  for  penalties  incurred  under  the  preceding  1 

mentotpros-  provisious  of  this  chapter  shall  be  commenced  within  six  months  after  2 

ecutions.  ^  rt>  •  i 

1815,135.  the  oitence  was  committed.                               r.  s.  so,  §ii.  3 

G.  S.  84.  §  10.  ^  p.  S.  98,  §  8.  R.  L.  98,  §  10. 


Sheriffs,  etc., 
to  inform  of 
offences. 
1727-8,  5,  §  5. 


Section  16.     Sheriffs,  constables  and  grand  jurors  shall  inquire  into     1 
and  inform  of  all  violations  of  this  chapter,  and  cause  it  to  be  enforced.     2 

R.  L.  98,  §  11. 


1791.  58.  S§  10.  12 
R.  S.  50,  J  9. 


G.  S 
P.  S. 


84.  §  8. 
98,  §  9. 


Penalty  for 

discharging 

firearms,  etc., 

on  Lord's  day. 

1865,  253. 

P.  S.  98,  §§  10- 

12. 

R.  L.98,  §  12. 

1908,  123. 


Section  17.  Whoever  on  the  Lord's  day  discharges  any  firearm 
for  sport  or  in  the  pursuit  of  game,  or  attempts  to  take  or  catch  any 
fish  by  using  any  hook,  line,  net  or  spear,  shall  be  punished  by  a  fine  of 
not  more  than  ten  dollars.  Prosecutions  hereunder  shall  be  commenced 
within  thirty  days  after  the  offence  was  committed. 


Innholders  who 
permit  imple- 
ments of 
gaming  to  be 
used,  etc. 
1854,  450.  §  1. 
G.  S.  84.  §  11. 
P.  S.  98,  5  14. 
R.  L.  98,  §  13. 


Section  18.     Any  innholder,  common  \ictualler  or  person  keeping  1 

or  suffering  to  be  kept  in  any  place  occupied  by  him  implements  such  2 

as  are  used  in  gaming,  in  order  that  the  same  may  for  hire,  gain  or  3 

reward  be  used  for  purposes  of  amusement,  who,  on  the  Lord's  day,  4 

uses  or  suffers  to  be  used  any  such  implements  upon  any  part  of  his  5 

premises,  shall  for  a  first  offence  be  punished  by  a  fine  of  not  more  than  6 

one  hundred  dollars  or  by  imprisonment  for  not  more  than  three  months;  7 

and  for  a  subsequent  offence  by  imprisonment  for  not  more  than  one  year;  8 

and  in  either  case  shall  further  recognize,  with  sufficient  siu-eties,  in  a  9 

reasonable  sum  for  his  good  behavior,  and  especially  that  he  will  not  be  10 

guilty  of  any  violation  of  this  section  for  three  months  after  the  date  of  1 1 

his  recognizance.  12 


Department 
of  public  utili- 
ties may 
authorize 
running 
trains  and 
steamboats 
on  Lord's  day. 
1881,  119. 
P.  S.  98,  §  15. 
1887,  391,  §  3. 
1897,  .389. 
R.  L.98,  §§14, 
15. 


Section  19.     The  department  of  public  utilities  may  authorize  the  1 

running,  on  the  Lord's  day,  of  such  steamboat  lines  and  of  such  trains  2 

on  any  railroad,  as  in  its  opinion  public  necessity  and  convenience  require,  3 

having  regard  to  the  due  ob.servance  of  the  day;  and  may,  if  public  neces-  4 

sity,  con\enience,  health  or  welfare  so  requires,  authorize  the  running  of  5 

steamboats  on  said  day  upon  such  conditions  as  it  deems  judicious  to  6 

prevent  disorderly  conduct  or  the  disturbance  of  public  worship,  and  it  7 

may  at  any  time  revoke  such  authority.         I9i3,  784.         1919,350. §ii7.  S 


Chap.  136.]  observ.vnxe  of  the  lord's  day.  1381 

1  Section  20.     The  provisions  of  tiiis  chapter  shall  not  constitute  a  This  chapter 

2  defence  to  an  action  for  a  tort  or  injury  suffered  by  a  person  on  the  1877*  23?°'^^' 

3  Lord's  day. 


p.  S.  98.  §  3. 

128  Mass.  594. 

165  Mass.  346. 

1884,  37. 

131  Mass.  156. 

209  Mass.  135. 

R.  L.  98.  §  17. 

140  Mass.  199. 

125  U.  S.  555. 

CERTAIN    SPORTS   AND    GAMES    PERMITTED    ON   THE    LORD  S    DAY. 

1  Section  21.     In  any  city  or  town  which  accepts  sections  twenty-one  Certain  sports 

2  to  twenty-eight,  inclusive,  in  the  manner  provided  in  section  twenty-six,  pefmitted^ 

3  or  has  accepted  corresponding  provisions  of  earlier  laws  in  the  manner  §§"f;7.*°' 

4  provided  therein,  it  shall  be  lawful  to  take  part  in  or  witness  any  athletic  n^jo)'  1^9 

5  outdoor  sport  or  game,  in  which  the  contestants  do  not  receive  and  have 
fi  not  been  promised  any  pecuniary  reward,  remuneration  or  consideration 

7  whatsoever  directly  or  indirectly  in  connection  therewith,  on  the  Lord's 

8  day  between  the  hours  of  two  and  six  in  the  afternoon  as  hereinafter 

9  provided. 

1  Section  22.     Such  sports  or  games  shall  take  place  on  such  play-  To  be  held 

2  grounds,  parks  or  other  places  as  may  be  designated  for  that  purpose  in  urens^ 

3  a  license  or  permit  issued  by  the  city  council,  \nth  the  approval  of  the  i92a^240.  §  2. 

4  mayor,  or  by  the  selectmen;   provided,  that  if,  under  any  statute  or 

5  ordinance,  a  public  playground  or  park  is  placed  under  the  exclusive 

6  charge  and  authority  of  any  other  officials,  such  officials  shall,  for  that 

7  playground  or  park,  be  the  licensing  authority;   and  provided,  that  no 

8  sport  or  game  shall  be  permitted  in  a  place,  other  than  a  public  play- 

9  ground  or  park,  within  one  thousand  feet  of  any  regular  place  of  worship. 

1  Section  23.     Such  sports  or  games  shall  be  conducted  subject  to  Tobecon- 

2  such  regulations  and  restrictions  as  shall  be  prescribed  by  the  city  coun-  regulations.*"^ 

3  cil  or  selectmen,  and  the  same  shall  be  stated  in  the  license  or  permit.     1920, 240.  §  3. 

1  Section  24.     Xo  admission  fee  shall  be  charged  directly  or  indirectly.  No  admission 

2  and  no  business  or  other  enterprise  shall  be  conducted,  and  no  collection  etc.  ^"^  ^'^   ' 

3  shall  be  made  at  any  such  sport  or  game.  1920,  240.  §  5. 

1  Section  2.5.     The  licensing  authorities  described  in  section  twenty-two  Revocation 

2  may  at  any  time  and  without  previous  notice  revoke  permits  to  conduct  iglo.'aio.  §  6. 

3  the  said  sports  or  games  if  they  have  reason  to  believe  that  any  provision 

4  of  sections  twenty-one  to  twent.y-eight,  inclusive,  or  of  any  regulation 

5  or  restriction  prescribed  under  section  twenty-three,  is  being  or  will  be 

6  violated. 

1  Section  26.     In  a  city,  the  question  of  accepting  sections  twenty-one  Manner  of 

2  to  twenty-eight,  inclusive,  shall  be  submitted  at  a  city  election,  but  only  secSons  21  to 

3  upon  a  petition  signed  by  not  less  than  ten  per  cent  of  the  voters  and  i92o°^24o!'rs. 

4  filed  with  the  city  clerk  not  less  than  thirty  days  before  the  election,  and 

5  said  sections  shall  take  effect  therein  upon  their  acceptance  by  a  majority 

6  of  the  voters  voting  thereon  at  such  election.     In  a  town,  said  sections 

7  shall  take  effect  upon  their  acceptance  by  a  majority  of  the  voters  voting 

8  thereon  at  an  annual  or  special  town  meeting,  and  the  selectmen  of  a  town 

9  shall,  upon  the  petition  of  not  less  than  ten  per  cent  of  the  registered 
ID  voters  thereof,  call  a  special  town  meeting  for  the  purpose  of  voting  upon 
11  such  acceptance. 


1382 


GAMING. 


[CH-\P.    137. 


Resubmission 
of  said  sec- 
tions. 
1920,  240.  §  n. 


Limit  of 
application 
of  said 
sections. 
1920,  240,  §  4. 


Section  27.    In  any  city  or  town  in  which  the  pro\asions  of  sec-  1 

tions  twenty-one  to  twenty-eight,  inclusive,  are  in  force,  said  sections  2 

shall  be  resubmitted  to  the  voters  at  a  municipal  election,  if  a  petition  3 

to  that  effect,  signed  by  not  less  than  ten  per  cent  of  the  voters,  is  filed  4 

with  the  city  or  town  clerk  not  less  than  thirty  days  before  the  election.  5 

If,  upon  such  resubmission,  a  majority  of  the  voters  voting  thereon  vote  6 

against  said  sections,  they  shall  cease  to  have  effect  in  that  city  or  town  7 

until  reaccepted  by  the  voters  as  hereinbefore  provided.  8 

Section  28.    Sections  twenty-one  to  twenty-eight,   inclusive,   shall  1 

not  prohibit  participation  at  other  hours  on  the  Lord's  day  in  other  out-  2 

door  exercise  not  involving  the  element  of  contest,  nor  shall  they  permit  3 

horse  racing,  automobile  racing,  boxing,  or  hunting  with  firearms.  4 


REFERENCES. 

Disposal  of  applications  to  the  commissioner  of  public  safety  under  this  chapter. 
Chap.  147,  §  6. 

Use  of  any  building  as  a  theatre,  special  hall,  place  of  pubhc  resort,  etc.,  prohibited 
unless  licensed  by  commissioner  of  public  safety  and  mayor  of  Boston,  Chap.  143, 
§  52. 

One  day's  rest  in  seven  for  employees,  Chap.  149,  §§  47-52,  wherein  it  is  expressly 
stated  that  neither  act  shall  authorize  any  work  on  Sunday  not  now  authorized  by 
law. 

Innkeepers  and  common  victuallers  allowed  to  keep  their  places,  if  licensed,  open 
on  Sunday,  Chap.  140,  §  8  f221  Mass.  70). 

Hunting  or  destroving  birds,  wild  animals  or  game  of  any  kind  on  Sunday  pro- 
hibited, Chap.  131,  §32. 

Baseball  or  football  games  between  1  and  6  p..m.  on  Sunday,  in  which  all  players 
are  in  United  States  military  or  naval  service,  and  to  which  no  admission  is  charged, 
allowed  during  the  world  war  (special  and  temporary),  1918,  134. 

Mayor  or  selectmen  may  grant  licenses  for  certain  exhibitions,  etc.,  but  not  to 
be  held  on  Sunday,  except  that  they  may  grant  licenses  for  public  entertainments 
on  that  day  as  provided  in  §  4  of  this  chapter,  Chap.  140,  §  181. 

Parades  with  firearms  regulated.  Chap.  33,  §  64. 


CHAPTER     137 


GAMING. 


Sect. 

1.  Recovery  of  money,  etc.,  lost  at  gaming. 

2.  Liability  of  owner  of  gaming  house. 

3.  Notes,  conveyances,  etc.,  for  gaming, 

\'oid. 

4.  Dealing    in    securities    without    actual 

sale. 


Sect. 

5.  Stolen,  etc.,  property,  recovered  by 
whom. 

G.  Prima  facie  evidence  of  intent  not  to 
receive  and  deliver. 

7.  "Securities"  and  "commodities"  de- 
fined. 


Recovery  of 
money,  etc  . 
lost  at  gaming. 
1736-7,  17.  S  2. 
1742-3.  27,  §  2. 
17S5,  .58,  §  2. 
R.  S.  SO,  §  12. 
G.  S.  8.5,  §  1. 
P.  S.99,  §  1. 
1895,419,  §  11. 
R.  L.  99,  §  1. 
17  Mass.  SCO. 
3  Pick.  446. 
S  Gray,  243. 
1  Allen,  £63. 
116  Mass.  272. 
129  Mass.  407. 
133  Mass.  466. 


Section  1.  Whoever,  by  playing  at  cards,  dice  or  other  game,  or  by 
betting  on  the  sides  or  hands  of  those  gaming,  loses  to  a  person  so  play- 
ing or  betting  money  or  goods,  and  pays  or  delivers  the  same  or  any  part 
thereof  to  the  winner,  or  whoever  pays  or  delivers  money  or  other  thing 
of  value  to  another  person  for  or  in  consideration  of  a  lottery,  policy  or 
pool  ticket,  certificate,  check  or  slip,  or  for  or  in  consideration  of  a  chance 
of  drawing  or  obtaining  any  money,  prize  or  other  thing  of  value  in  a 
lottery  or  policy  game,  pool  or  combination,  or  other  bet,  may  reco\"er 
such  money  or  the  value  of  such  goods  in  contract;  and  if  he  does  not 
within  three  months  after  such  loss,  payment  or  delivery,  without  covin 


Chap.  137.]  g.iming.  1383 

11  or  collusion,  prosecute  such  action  with  effect,  any  other  person  may  sue  134  Mass.  iso, 

12  for  and  recover  in  tort  treble  the  value  thereof.  i36  Mass.  52.';,  564. 

143  Mass.  2S0,  149  Mass.  124.  170  Mass.  146.  226  Mass.  409. 


1  Section  2.     The  owner,  tenant  or  occupant  of  a  house  or  building  Liawuty.of 

2  where  money  or  goods  are  lost,  paid  or  delivered  in  any  form  of  gaming  gam?ng°house. 

3  referred  to  in  the  preceding  section,  or  by  betting  on  the  sides  or  hands  a^s.'s™!  2. 

4  of  those  gaming,  with  the  knowledge  or  consent  of  said  owner,  occupant  rs9^5',®4%^  f  12. 

5  or  tenant,  shall  be  liable  in  the  same  manner  and  to  the  same  extent  as  ?,■/'; r^"' ^„2.;„ 

r»      I  •  •  I'  •     T    T  1  !•  •  116  Mass.  272. 

6  the  wuiner  or  receiver  tliereoi  is  liable  under  the  preceding  section.  129  Mass.  407. 

'  ^  1.34  Mass.  150. 

143  Mass.  2S0.  154  Mass.  346.  226  Mass.  409. 


non- 
ances,  etc., 
gaming, 


1  Section  3.     Notes,  bills,  bonds,  mortgages  or  other  securities  or  con-  Notes. 

2  veyances  the  whole  or  part  of  the  consideration  of  which  is  money  or  Jor]_ 

3  goods  won  by  gaming  or  playing  at  cards,  dice  or  any  other  game,  or  by  [ygfiLy  n  ^  i. 

4  betting  on  the  sides  or  hands  of  persons  gaming,  or  for  repaying  or  re-  "ll'lj^I'/  ^' 

5  imbursing  money  knowingly  lent  or  advanced  for  gaming  or  betting,  or  i8oo;s7;§  s. 

6  lent  and  advanced  at  the  time  and  place  of  such  gaming  or  betting  to  a  g'.  s.  8.<  §  4. ' 

7  person  so  gaming  or  betting,  shall  be  void  as  between  the  parties  thereto,  r'.  l.  99.  §  3. 

8  and  as  to  all  persons  except  such  as  hold  or  claim  under  them  in  good  l^iw^"^' 

9  faith  and  without  notice  of  the  illegality  of  the  consideration.  Jgoo;  2. 

3  Cush.  448.  120  Mass.  271.  151  Mass.  118.  226  Mass.  409. 

1  Section  4.'    Whoever  upon  credit  or  upon  margin  contracts  to  buy  Dealing  in 

2  or  sell,  or  employs  another  to  buy  or  sell  for  his  account,  any  securities  or  »Tthou'f  actual 

3  commodities,  intending  at  the  time  that  there  shall  be  no  actual  purchase  ^islo,  437,  §  2. 

4  or  sale,  may  recover  in  contract  from  the  other  party  to  the  contract,  or  R.'Liogfsc^' 

5  from  the  person  so  employed,  any  payment  made,  or  the  value  of  any-  Jgl^j^f^^gg'  |/' 

6  thing  delivered,  on  account  thereof,  if  such  other  party  to  the  contract  los  Mass.  232, 

7  or  person  so  employed  had  reasonable  cause  to  believe  that  said  inten-  174  Mass.  23s. 

8  tion  existed;  but  no  person  shall  have  a  right  of  action  under  this  section  3S2. 

9  if,  for  his  account,  such  other  party  to  the  contract  or  the  person  so  em-  Its,  sooTsel.^' 

10  ployed  makes,  in  accordance  with  the  terms  of  the  contract  or  employ-  251.^^"^^'  ^"^' 

1 1  ment,  personally  or  by  agent,  an  actual  purchase  or  sale  of  said  securities  p^  ^'^^^-  ^''^' 

12  or  commodities,  or  a  valid  contract  therefor.    If  a  purchase  or  sale  of  the  '**  ^'^^s-  ^is, 

13  securities  or  commodities  ordered  to  be  bought  or  sold  is  made  by  the  issMass. iss. 

14  person  so  employed  on  a  stock  exchange  or  board  of  trade,  and  other  pur-  191  Mass!  117. 

15  chases  or  sales  of  such  securities  or  commodities  are  made  on  the  same  igsMassillei 

16  day  on  such  exchange  or  board  by  such  person  for  others  in  due  course  of  ingMnss.  242. 

17  business,  and  the  balance  of  such  purchases  or  sales  of  securities  or  com-  ;Jj°  jjjjfjjj- 

18  modities  is  received  or  delivered  by  such  person  by  direction  of  the  clear-  206  Mass.  275. 

19  ing  house  of  such  exchange  or  board  on  the  day  when  such  purchase  or  214  Mass!  iso! 

20  sale  or  contract  therefor  is  made,  or  on  the  regular  clearing  day  of  such  221  Mass!  495! 

21  exchange  or  board  next  thereafter,  which  shall  not  be  more  than  four  226  Mass!  46^' 

22  days  after  the  making  of  such  purchase  or  sale,  or  contract  therefor,  232  Mass!  117. 

23  such  purchases  and  sales  shall  be  deemed  actual  purchases  and  sales  fjg  ^Im-  'Hf 

24  within  the  meaning  of  this  section. 

1  Section  5.     If,  in  a  case  under  the  preceding  section,  the  money  or  .stolen,  etc., 

2  property  paid  or  delivered  has  been  stolen,  embezzled  or  fraudulently  recovered 

3  or  wrongfully  used  by  the  party  entitled  to  recover  under  said  section,  i.sgo.'Ts?!  §  3. 

4  the  person  to  whom  it  rightfully  belongs  may  in  his  own  name  recover  loo^ji^a^s's^aw. 

5  it  in  contract. 


1384 


INTOXICATING    LIQUORS,    ETC. 


[Chap.  KiS. 


Prima  facie 
evidence  of 
intent  not  to 
receive  and 
deliver. 
1890,437.  5  4. 
1901,459,  §  2. 
R.  L.  99.  §  U. 
1919.247,8  2. 
ISl  Mass.  251. 
182  Mass.  321. 
195  Mass.  419. 
200  Mass.  307. 
206  Mass.  27.'). 
217  Mass.  451. 
221  Mass.  49.i. 
226  Mass.  4(1. 
230  Mass.  49. 
234  Mass.  23l'i. 
236  Mass.  454. 


"Securities" 
and  "com- 
modities" 
de6ned. 
1890.437,5  1. 
R.  L.  99.  §  7. 


Section  6.    In  a  proceeding  under  either  of  the  two  preceding  sections,  1 

if  the  person  so  employed  does  not  make  an  actual  transaction  relieving  2 

him  from  liability  under  section  four,  the  fact  that  the  seller  or  the  per-  3 

son  employing  another  to  sell  for  his  account  did  not  own  the  securities  4 

or  commodities  at  the  time  of  the  contract  of  sale  or  of  the  giving  of  the  5 

order  to  sell,  and  the  fact  that  settlements  were  made  without  completion  6 

of  the  purchase  or  sale  of  the  securities  and  commodities  bought  or  sold  7 

or  ordered  to  be  bought  or  sold,  shall  each  be  prima  facie  e\idence  that  8 

within  the  meaning  of  section  four  there  was  an  intention  that  there  9 

should  be  no  actual  purchase  or  sale,  and  that  there  was  reasonable  10 

cause  to  believe  that  said  intention  existed;  and  the  parties  liable  to  an  11 

action  under  said  section  shall  be  jointly  and  severally  liable.  12 


Section  7.  In  the  three  preceding  sections,  the  word  "securities" 
shall  include  all  evidences  of  debt  or  property  and  options  for  the  pur- 
chase and  sale  thereof,  shares  in  any  corporation,  joint  stock  company 
or  association,  bonds,  coupons,  scrip,  rights,  choses  in  action  and  other 
evidences  of  debt  or  property  and  options  for  the  purchase  or  sale  thereof; 
and  the  word  "commodities"  shall  include  everything  movable  that  is 
bought  and  sold. 

REFERENCE. 
Criminal  provisions  for  bucketing,  etc.,  Chap.  271. 


CHAPTER     138. 

INTOXICATING   LIQUORS   AND   CERTAIN   NON-INTOXICATING 

BEVERAGES. 


Sect. 

definitions  and  sale. 

1.  Definitions. 

2.  Regulation  of  sales. 

3.  Definition  of  intoxicating  liquor. 

LICENSING    BOARDS. 

4.  Appointment. 

5.  Terms  of  oflice.     Removal. 

6.  Cliairman.     Quorum.     Vacancies. 

7.  Office,  salaries,  etc. 

8.  Powers  to  vest  in   aldermen   in  no   li- 

cense cities. 

9.  Record  and  report. 

10.  Certain  cities  exempt. 

GRANTING   OF   LICENSES. 

1 1 .  Granting  of  licenses. 

12.  Information  relative  to  applications  and 

licenses. 
1.3.  Applications    to    be    received    during 
March  and  April. 

14.  Number  of  licenses  limited,  etc. 

15.  Notice  of  application  to  be  published. 

16.  Licenses  may  be  refused  to  unfit  per- 


CONDITIONS   OF   LICENSES. 

17.  Conditions. 


Sect. 

classes  of  licenses. 
18.   Five  classes  of  licenses. 


FEES   FOR   LICENSES. 

19.  Fees. 

20.  Death  of  licensee,  new  license,  etc. 

REGULATION   OF   LICENSED    PREMISES. 

21.  Entrances  and  screens. 

22.  License  of  premises  near  school  forbid- 

den. 

23.  License  in  dwelling  house  or  store  con- 

nected with  it  forbidden. 

24.  Hours  of  closing  for  common  victuallers. 

DRUGGISTS. 

25.  Sale  by  druggists. 

26.  Licenses  to  druggists. 

27.  Certificate  of  fitness  for  licen.sc. 

2S..  Sale  of  alcohol   by  pharmacists   regu- 
lated. 

29.  Druggist's  license   to    become   void  in 

certain  cases. 

30.  Sale  only  on  certificate. 

31.  Record  book  for  sales  of  liquor.     Cer- 

tificate. 


Chap.  138.] 


INTOXICATING   LIQUORS,   ETC. 


1385 


Sect. 

32.  Books,  etc.,  open  to  inspection. 

33.  Penalty  for  sale  of  liquor  in  name  of 

pharmacist. 

SALE   OF   WOOD   ALCOHOL. 

34.  Manufacture,  sale,  etc. ,  of  wood  alcohol, 

etc.,  without  license  by  other  than 
registered  druggist  forbidden. 

35.  Licenses    to    manufacture,    sell,    etc., 

wood  alcohol,  etc. 

36.  Form  of  label  on  containers  of  wood  al- 

cohol, etc.     Penalty. 

37.  Offence     of     unlawful     sale     of     wood 

alcohol,  etc. 

38.  Penalty. 

LICENSES  TO  DEALERS  IV  PAINTS  AND  CHEM- 
ICALS. 

39.  Licenses  to  dealers  in  paints,  etc. 

40.  License  to  become  void  in  certain  cases. 

41.  Record  book  for  sales. 

42.  Refilling  of  bottles. 

BONDS  AND   TRANSFEKS    OF   LICENSES. 

43.  Payment  of  fee  and  bond. 

44.  Sureties  on  bond. 

45.  Transfer  of  licenses. 

46.  One  quarter  of  fees  to  be  paid  to  com- 

monwealth.    Penalty. 

PENALTIES     FOR     ILLEG.AL    SALE.         SEIZURE. 
CIVIL    DAMAGES. 

47.  Entry  on  licensed  premises  for  exam- 

ination and  taking  samples. 
4S.  Forfeiture  of  license. 

49.  Civil  liability  for  damages  caused  by 

an  intoxicated  person. 

50.  Action  by  owner  paj^ng  money  for  ten- 

ant. 

51.  Minors  under  eighteen   not  to  handle 

liquor. 

52.  Penalty  for  furnishing  liquor  to  minors. 

53.  Penalty  for  false  statement  of  age  in 

order  to  procure  liquor. 

54.  Analysis   of  liquor   bj'   department    of 

public  health. 

55.  Certificate  to  accompany  sample. 

56.  State  secretary  to  pro\dde  forms.    Cer- 

tificate to  be  evidence. 

57.  Tampering  with  samples  forbidden. 


,Sect. 


58. 
59. 


60. 


Court  may  order  analysis. 

Delivery  of  liquor  prima  facie  evi- 
dence of  sale  in  certain  cases. 

Signs  prima  facie  evidence  of  keeping 
for  sale  in  certain  cases. 

61.  Search  warrant. 

62.  Search  of  dwelling  house. 

63.  Designation  of  place  to  be  searched. 

64.  Search    of    premises    and    seizure    of 

liquor. 

65.  Notice  to  keeper  of  liquors  seized. 

66.  Form  and  service  of  notice. 

67.  Postponement  of  trial. 

68.  Claimant  of  liquors  may  be  admitted  as 

party.     Judgment. 

69.  Disposition  of  forfeited  liquor. 

70.  Liquors  not  forfeited  to  be  returned. 

71.  Forfeiture  of  furniture,  etc. 

72.  Costs. 

73.  Appeal. 

74.  Superior    court    to    have    jurisdiction 

when  liquors  worth  more  than  one 
thousand  dollars. 

75.  Arrest  without  warrant  in  certain  cases. 

76.  Charter  of  club  where   liquor  is  ille- 

gally   sold,    etc.,    may    be    declared 
void. 

77.  Disposition  of  prosecution  regulated. 

78.  Licensing  authorities  to  be  notified  of 

conv-iction. 

79.  Owner   of    building   to    be    notified    of 

conviction. 
SO.  Forms  for  prosecution. 

81.  Liquors   illegally   kept,    etc.,    common 

nuisances. 

82.  Clubs  u.sed  for  selling  liquor  common 

nuisances. 

S3.  Penalty  for  illegal  sale,  etc.,  of  certain 
non-intoxicating  beverages. 

84.  Conviction  of  licensee  of  violation  of 
law  or  of  conditions  of  license  ren- 
ders license  void. 

So.  Certain  pro^nsions  not  to  apply  to  sales 
on  a  physician's  prescription. 

S6.  General  penalty. 

87.  Penalty   for   ^'iolation   of   certain   sec- 

tions. 

88.  Penalty  for  false  certificates  or  prescrip- 

tions. 

89.  Penalty  for  -iiolation  of  section  42. 


DEFINITIONS   AND   SALE. 

1  Section  1.     The  following  words  as  used  in  this  chapter,  unless  a  Definitions. 

2  contrary  meaning  is  required  by  the  context,  shall  have  the  following  ^""°"  '^^°'  ^ '" 

3  meanings: 

4  "Certain  non-intoxicating  beverages",  all  beverages  containing  not 

5  less  than  one  half  of  one  per  cent  and  not  more  than  two  and  three 

6  fourths  per  cent  of  alcohol  by  weight  at  sixty  degrees  Fahrenheit.    Such 

7  beverages  shall  be  deemed  not  to  be  into.xicating  liquor. 

8  "Licensing  board",  the  board  appointed  under  section  four  or  the 

9  board  described  in  section  ten. 


1386 


INTOXICATING   LIQUORS,    ETC. 


[Chap.  138. 


"Licensing  authorities",  all  boards  or  officers  having  power  to  grant  10 
licenses  for  the  sale  of  intoxicating  liquor  or  of  certain  non-intoxicating  11 
beverages.  12 


Regulation  of 

sales. 

U,  S.  Const. 

Amend.  IS 


Section  2.     No  person  shall  sell,  or  expose  or  keep  for  sale,  spirituous     1 
or  intoxicating  liquor  or  certain  non-intoxicating  beverages,  except  as     2 


1920,  630.  authorized  by  this  chapter. 


236  Mass.  281. 


Penalty,  §§  83,  86. 


Definition  of 

intoxicating 

liquor. 

236  Mass.  448. 


Section  3.     Any   beverage   containing   more   than    two   and   three  1 

quarters  per  cent  of  alcohol  by  weight  at  sixty  degrees  Fahrenheit,  and  2 

distilled  spirits,  shall  be  deemed  to  be  intoxicating  liquor  within  the  3 

meaning  of  this  chapter.  4 


Appointment. 
1875,  99,  §  20. 
187S,  244,  §  2. 
P.  S.  100,  §  28. 

1894,  428. 
HI,  2. 

1895,  379. 

1896,  396. 

R.  L.  100,  §  3. 
1920,  630,  §  2. 
184  Mass.  238. 


LICENSING   BOARDS. 

Section  4.     In  each  city  which  is  not  exempt  by  the  provisions  of  1 

section  ten  there  shall  be  a  licensing  board  appointed  by  the  mayor,  con-  2 

sisting  of  three  persons,  who  shall  not  be  engaged,  directly  or  indirectly,  3 

in  the  manufacture  or  sale  of  intoxicating  liquors  or  of   certain  non-  4 

intoxicating  beverages,  who  have  been  residents  of  the  city  in  which  5 

they  are  appointed  for  at  least  two  years  immediately  preceding  their  6 

appointment,  and  who  shall  not  hold  any  other  public  office  except  that  7 

of  notary  public  and  justice  of  the  peace.     One  member  shall  be  ap-  S 

pointed  from  each  of  the  two  leading  political  parties  and  the  third  9 

member  may  also  be  appointed  from  one  of  said  parties.    If  any  member  10 

of  said  board  engages  directly  or  indirectly  in   such  manufacture  or  11 

sale,  his  office  shall  immediately  become  vacant.  12 


Terms  of 
office.     Re- 
moval. 

1894.428,  §  2. 
lS9fi, 396. 
R.L.  100,  §4. 
1912,389. 
1920,  630,  §  2. 
223  Mass.  542. 
223  Mass.  196. 


Section  5.  The  terms  of  office  of  the  members  first  appointed  shall  1 
commence  at  the  date  of  their  appointment,  and  shall  be  so  arranged  as  2 
to  expire  at  the  end  of  two,  four  and  six  years  from  the  first  Monday  in  3 
June  in  the  year  of  their  appointment,  the  date  of  expiration  to  be  speci-  4 
fied  in  their  respective  commissions;  and  thereafter  a  member  sha,ll  be  5 
appointed  for  a  term  of  six  years  from  the  first  Monday  in  June  of  the  G 
year  in  which  the  previous  term  expires.  All  members  shall  hold  office  7 
until  their  respective  successors  are  qualified.  They  may  be  removed  by  8 
the  mayor  for  cause,  after  charges  preferred,  reasonable  notice  thereof,  9 
and  a  hearing  thereon;  and  the  mayor  shall,  in  the  order  of  removal,  state  10 
his  reasons  therefor.  Any  member  of  said  board  may,  within  seven  days  1 1 
after  notice  of  his  removal,  apply  to  the  superior  court  for  a  review  of  12 
the  charges,  of  the  evidence  submitted  thereunder,  and  of  the  findings  13 
thereon  by  the  mayor.  Notice  of  the  entry  of  such  application  shall  be  14 
given  to  the  mayor  by  serving  upon  him  an  attested  copy  thereof.  The  15 
entry  fee,  costs,  and  all  proceedings  upon  such  application  shall  be  ac-  16 
cording  to  the  rules  regulating  the  trial  of  civil  causes.  The  court,  after  17 
a  hearing,  shall  affirm  or  revoke  the  order  of  the  mayor  removing  such  18 
member,  and  there  shall  be  no  appeal  from  the  decision.  19 

If  any  member  of  said  board  who  has  been  removed  from  office  shall  20 
apply  to  the  superior  court  for  the  review  provided  for  in  this  section,  21 
the  removal  shall  not  take  effect  until  the  court  shall  have  affirmed  22 
the  order  removing  the  member;  and  until  such  order  is  affirmed  the  23 
member  shall  continue  to  exercise  the  powers  and  perform  the  duties  of  24 
his  office.  25 


Chap.  138.]  intoxicating  liquors,  etc.  1387 

1  Section  6.     The  mayor  shall  designate  one  naember  as  chairman,  chairman. 

2  who  shall  also  act  as  secretary.    Two  members  shall  be  a  quorum  for  the  Vacandes. 

3  transaction  of  business.    If  a  member  ceases  to  be  a  resident  of  the  city  j^'i*;  too.  1 1'. 

4  for  which  he  is  appointed  or  becomes  unable  to  perform  his  official  duties,  ^^"°'  ^^°'  ^  ^' 

5  there  shall  be  a  vacancy  in  the  board.    All  vacancies  shall  be  filled  by  the 

6  mayor  for  the  residue  of  the  unexpired  term  in  the  manner  p^o^•ided  for 

7  an  original  appointment. 

1  Section  7.     Each  city  which  has  such  a  board  shall  provide  it  with  office, 

2  suitable  rooms,  properly  furnished,  heated  and  lighted,  shall  pay  such  i'sm,' «!.  s  6. 

3  salaries  as  the  city  council,  subject  to  the  approval  of  the  mayor,  may  J920;  030. 1 2. 

4  from  time  to  time  establish,  and  shall  also  pay  all  expenses  incurred 

5  by  said  board  for  blank  books,  printing  and  other  necessary  expenses 

6  approved  by  said  board,  not  exceeding  one  thousand  dollars  in  any  one 

7  year. 

1  Section  S.     If,  at  any  annual  city  election,  a  city  in  which  such  Powers  to 

2  board  has  been  appointed  shall  not  vote  to  authorize  the  granting  of  men  in  no  ^' 

3  licenses  for  the  sale  of  certain  non-intoxicating  beverages,  all  obligations  i894!428,'r'7. 

4  imposed  upon  said  city  by  the  preceding  section  shall  cease  from  and  ^920,' eso,' §  2.' 

5  after  the  first  Monday  in  June  next  following  such  vote  and,  from  and  i^o -'^laas.  isi. 

6  after  said  date,  the  powers  and  duties  granted  to  and  imposed  upon  said 

7  board  in  respect  to  third  and  fourth  class  licenses  and  licenses  of  inn- 

8  holders  and  common  victuallers  shall  vest  in  the  aldermen  of  said  city. 

9  If  said  city  shall,  at  a  subsequent  annual  city  election,  again  vote  to 

10  authorize  the  granting  of  licenses  for  the  sale  of  such  beverages,  the  obli- 

11  gations  imposed  by  the  preceding  section  shall  be  revived  and  shall 

12  attach  to  said  city  from  and  after  March  first  next  following  such  vote 

13  and,  from  and  after  said  date,  the  powers  and  duties  of  the  aldermen 

14  relative  to  licenses  of  the  third  and  fourth  classes  and  licenses  of  inn- 

15  holders  and  common  victuallers  shall  revest  in  the  licensing  board  ap- 

16  pointed  in  said  city. 

1  Section  9.     Each  board  shall  keep  a  record  of  its  doings  and  hearings  Record  ana 

2  and  shall  make  a  quarterly  report  of  its  doings  to  the  mayor.    It  may  1194^428, 

3  prescribe  the  forms  of  applications  for  licenses,  may  require  any  state-  f^  l.%o,  §  8. 

4  ment  which  may  be  made  before  it  and  papers  which  may  be  filed  with  '"-°'  ''^°'  ^  ^• 

5  it  relative  to  applications  for  licenses  to  be  sworn  to,  and  for  such  pur- 

6  pose,  any  member  may  administer  oaths. 

1  Section  10.     The  following  cities  shall  be  exempt  from  the  opera-  Certain  cities 

2  tion  of  the  six  preceding  sections:  First,  Cities  having  a  licensing  board  i894,'42s,  f  10. 

3  created  by  special  statute  or  under  the  provisions  of  a  charter.    Second,  1920;  iaS;  §2. 

4  Cities  which  have  not  at  any  annual  city  election  before  this  chapter 

5  takes  eft'ect  voted  to  authorize  the  granting  of  licenses  for  the  sale  of 

6  certain  non-intoxicating  beverages;  but  if  any  such  city  hereafter,  at  an 

7  annual  city  election,  votes  to  authorize  the  granting  of  such  licenses,  a 

8  board  shall,  thereupon,  in  the  February  following,  be  appointed  for  such 

9  city  as  above  provided,  and  the  provisions  of  the  six  preceding  sections 
10  shall  thereafter  apply  to  said  city. 


1388  IXTOXICATIXG   LIQUORS,   ETC.  [Ch.\P.    138. 


GR'tNTING   OF   LICENSES. 

Granting  of  SECTION  11.    In  a  citv  OF  town  whicli  at  its  annual  election  votes  to     1 

licenses.  ,.,  .»,.  piip  •  ... 

1875  99.  authorize  the  granting  of  hcenses  tor  the  sale  or  certain  non-mtoxicating     2 

1878, 244,  §  2.    beveragcs,  as  hereinafter  provided,  licenses  of  the  first  two  classes  men-     3 

§§  i.'l. '  tioned  in  section  eighteen  may  be  granted  annually  to  applicants  therefor    4 

5*5 1;  28°'  by  the  licensing  boards  in  cities  and  by  selectmen  in  towns,  and  in  any     5 

323^'§*2.'  city  or  town,  licenses  of  the  third,  fourth  or  fifth  class  mentioned  in     6 

1896'  397'  I  \o  ^^^^  section  may  be  granted  annually  to  applicants  therefor  by  the  licens-    7 

IS97',  398. 1 1.    ing  board  in  cities  having  such  boards,  by  the  aldermen  in  other  cities,  and     8 

1920.'  630.'  §  3.  ■  by  the  selectmen  in  towns.    Every  license  shall  be  signed  by  the  licensing    9 

136  Mass!  50 '    board  in  cities  having  such  boards,  in  other  cities  by  the  mayor  and  city  10 

221  MaS:  395:    clerk,  and  in  towns  by  the  chairman  of  the  selectmen  and  town  clerk,  and  1 1 

it  shall  be  recorded  in  the  office  of  the  licensing  board  in  cities  having  12 

such  boards,  and  in  other  cities  and  towns  in  the  office  of  the  city  or  13 

town  clerk,  and  the  licensee  shall  pay  the  recording  officer  one  dollar  for  14 

recording  the  license.     It  shall  name  the  person  licensed,  shall  set  forth  15 

the  nature  of  the  license  and  the  building  in  which  the  business  is  to  be  16 

carried  on,  and  shall  continue  in  force  until  the  first  day  of  the  May  17 

next  ensuing,  unless  sooner  forfeited  or  rendered  void.    The  aldermen  18 

and  selectmen,  respectively,  shall  insert  in  the  warrant  for  the  annual  19 

city  election  or  town  meeting  an  article  providing  for  a  vote  upon  the  20 

question,  "Shall  licenses  be  granted  for  the  sale  of  certain  non-intoxicat-  21 

ing  beverages  in  this  city  (or  town)?"    The  clerk  of  each  city  or  town  22 

shall,  within  thirty  days  after  such  vote  is  taken,  transmit  a  true  state-  23 

ment  thereof  to  the  state  secretary;   and  shall  annually,  in  November,  24 

make  a  return  to  said  secretary,  showing  the  number  of  licenses  of  each  25 

class  issued,  the  amount  received  for  the  same  by  classes  and  the  number  26 

revoked  if  any.  27 

reMve^to"  SECTION  12.    The  licensing  board  shall  certify  to  the  city  clerk,  the  1 

anS'uc^'nsel      ^ity  trcasurcr  and  the  chief  of  police  or  city  marshal  the  name  of  each  2 

1894. 428, 1  5.^  applicant  for  a  license,  the  name  of  each  person  to  whom  a  license  is  3 

19201  o3o',  ^  2.    issued,  the  date  when  each  license  goes  into  effect,  the  premises  on  which  4 

it  is  to  be  exercised,  the  class  of  the  license,  each  change  of  location  by  a  5 

licensee  and  each  transfer  of  a  license  ordered  by  it.  6 

ufberec'eh!.!        SECTION  13.     The  licensing  authorities  of  a  city  or  town  which  has     1 
during  -March     yotcd  to  authorlzc  the  granting  of  licenses  for  the  sale  of  certain  non-    2 

and  April.  .  ...  °  i-titi  i»'i  •  i-  n 

1883.93.       ^    intoxicatmg  beverages  may,  during  iVlarcn  and  April,  recen'e  applica-  3 

i92o;  63o'.  §  i"  tions  for  such  licenses,  publish,  investigate  and  act  thereon,  and  may,  4 

in  April,  grant  such  licenses,  to  take  effect  on  the  first  day  of  May  5 

following.  .  6 

Number  of  SECTION  14.     In  citics  and  towns  whicli  vote  to  authorize  the  granting  1 

limited,  etc.  of  liccuses  for  the  sale  of  certain  non-intoxicating  beverages  the  number  2 

1892]  28o!  of  places  licensed  for  the  sale  of  such  beverages  shall  not  exceed  one  3 

1899!  248';  for  each  one  thousand  of  the  population  as  ascertained  by  the  last  preced-  4 

R.  L.*iw.  ing  national  or  state  census,  but  one  such  place  may  be  licensed  in  any  5 

1909  371  §  s  town  having  a  population  of  less  than  one  thousand.     In  Boston,  one  6 

1915  67^'  ^"^*^^^  place  may  be  licensed  for  each  five  hundred  of  the  population,  but  7 

^IJ^^'^o'l  in  no  event  shall  the  total  number  of  licensed  places  therein  exceed  one  8 

1919  350 

§§25.26.'         thousand.    Nowhere  in  the  commonwealth  shall  a  first  class  license  be     9 


("hap.    138.]  INTOXICATING   LIQUORS,   ETC.  1389 

10  granted  to  be  exercised  upon  the  same  premises  with  a  license  of  the  1020,  ist; 

11  second  class,  except  that  a  licensed  innholder,  who  has  a  license  of  the  lu/Mass.  290. 

12  first  class  may  likewise  be  granted  a  license  of  the  second  class  for  the 

13  purpose  of  supplying  said  non-intoxicating  beverages  to  guests  who  have 

14  resorted  to  his  inn  for  food  or  lodging.    No  more  than  one  license  shall 

15  be  granted  by  any  one  vote  of  the  licensing  board.    Such  licenses  shall 

16  be  numbered  in  regular  order  as  granted,  and  any  license  granted  con- 

17  trary  to,  or  in  excess  of,  the  provisions  of  this  section  shall  be  void;  but 

18  in  a  town  voting  as  aforesaid  at  its  last  annual  town  meeting  which  has 

19  less  than  five  thousand  permanent  residents  according  to  the  last  pre- 

20  ceding  state  or  national  census  but  has  an  increased  resident  population 

21  during  the  summer  months,  the  selectmen  may,  on  or  before  May  fifteenth 

22  in  any  year,  apply  to  the  state  secretary  to  have  an  enumeration  made 

23  of  the  temporary  or  summer  residents  of  such  town.     Said  secretary 

24  shall  thereupon  make  such  enumeration,  between  June  twenty-third 

25  and  twenty-eighth  next  following,  under  such  rules  as  he  shall  establish. 

26  A  person  who  has  not  been  a  resident  of  such  town  for  at  least  three 

27  days  preceding  the  enumeration  shall  not  be  regarded  as  a  temporary  or 

28  summer  resident  thereof.    The  secretary  may  employ,  for  such  enumera- 

29  tion,  such  persons  as  may  be  necessary,  who  shall  in  all  cases  be  resi- 

30  dents  of  the  town  if  suitable  and  competent  persons  can  be  found ;  other- 

31  wise,  non-residents  may  be  employed.     The  secretary  shall  report  the 

32  total  number  of  such  temporary  or  summer  residents  to  the  selectmen 

33  of  the  town  on  or  before  said  June  twenty-eighth.    The  expenses  incurred 

34  in  making  such  special  enumeration  shall  be  paid  by  the  common- 

35  wealth.    The  state  treasurer  shall  thereupon  issue  his  warrant,  as  pro- 

36  vided  in  section  twenty  of  chapter  fifty-nine,  requiring  the  assessors  of 

37  such  towns  to  assess  a  tax  to  the  amount  of  the  expense  incurred  in 

38  making  this  special  enumeration,  and  such  amount  shall  be  collected  and 

39  paid  over  to  the  state  treasurer  in  the  same  manner  as  other  state  taxes. 

40  The  selectmen  may,  in  April,  recei\e  applications  for  such  licenses  and 

41  investigate  and  publish  the  same;    and  may  grant  one  such  license  for 

42  each  five  hundred  of  such  temporary  resident  population,  not  including 

43  the  permanent  inhabitants  of  such  town,  as  ascertained  by  said  special 

44  enumeration,  to  take  effect  on  July  first  and  to  expire  on  October  first 

45  next  follo^\■ing.    And  in  the  towns  of  Hull  and  Nahant  it  is  further  pro- 

46  vided  that  when  either  of  said  towns  has  voted  to  authorize  the  granting 

47  of  licenses  for  the  sale  of  certain  non-intoxicating  beverages  at  its  last 

48  annual  town  meeting,  and  such  special  enumeration  has  been  made  in 

49  the  calendar  year  last  preceding  said  last  annual  town  meeting,  the 

50  selectmen  may,  in  April,  receive  applications  for  such  licenses  and  in- 

51  vestigate  and  publish  the  same,  and  may  grant  one  such  license  for  each 

52  five  hundred  of  such  temporary  resident  population,  not  including  the 

53  permanent  inhabitants  of  the  town,  as  ascertained  by  said  special  enumer- 

54  ation  taken  in  said  last  preceding  calendar  year,  to  take  effect  on  INIay 

55  fifteenth  and  to  expire  on  October  first  next  following.     A  selectman, 

56  member  of  a  licensing  board  or  census  enumerator  who  violates  any 

57  provision  of  this  section  shall  be  punished  by  a  fine  of  five  hundred 

58  dollars. 

1  Section  15.     Notice  of  all  applications  for  licenses  shall,  at  the  ex-  Notice  of 

2  pense  of  the  applicant,  to  be  paid  in  advance,  be  published  in  the  follow-  b?'^pubiVshed° 

3  ing  manner:    in  Boston  by  the  licensing  board  in  two  or  more  daily  p'.'s.' wo.' i d.' 

4  newspapers  published  therein;    and  in  the  Charlestown,  East  Boston,  }||5;3i3;5  2 


1390 


IXTOXICATIXG    LIQUOKS,    ETC. 


[Ch.\p.  138. 


r^lIoo'Iu  South  Boston,  Dorchester,  Roxbury  and  Brighton  districts  of  said  city,  5 
1920, 6.30,'  §  6.  respectively,  in  at  least  one  weekly  newspaper  published  in  the  district  G 
ISO  Mass!  389.  in  whicli  the  premises  for  which  the  license  is  asked  are  situated,  if  any  7 
201  Mass.'  204.  is  there  published ;  in  other  cities  and  towns  by  the  licensing  authorities  8 
thereof,  in  such  newspapers,  printed  therein  and  published  at  least  once  9 
a  week,  as  they  may  designate;  or  if  no  such  newspaper  is  printed  10 
therein,  then  by  posting  such  notice  in  a  conspicuous  place  on  the  premises  1 1 
described  in  the  application  for  the  license  and  in  two  or  more  places  in  12 
which  public  notices  are  usually  posted  in  the  neighborhood.  Such  notice  13 
shall  set  forth  the  name  of  the  appHcant  in  full,  the  class  of  the  license  14 
applied  for,  a  particular  description  of  the  premises  on  which  the  license  15 
is  to  be  exercised,  designating  the  building  or  part  of  a  building  to  be  16 
used,  and,  if  practicable,  the  street  and  number,  and  shall  be  published  at  17 
least  ten  clays  before  the  licensing  authorities  act  thereon.  If  a  license  is  18 
granted  without  such  previous  publication,  any  citizen  of  the  city  or  19 
town  within  which  such  license  is  issued  may  make  complaint  to  the  20 
district  court  haxing  jurisdiction  therein;  and  if,  after  due  hearing,  it  21 
appears  that  such  notice  was  not  given,  the  court  shall  revoke  the  license  22 
and  give  notice  thereof  to  the  authorities  which  issued  it.  23 


beTrfused'to  SECTION  16.  The  licensing  authorities  may  at  any  time  refuse  to 
i87s.99?r5  issue  a  license  to  a  person  whom  they  consider  mifit  to  receive  the  same; 
R  l\°ooV'io  but  this  chapter  shall  not  be  so  construed  as  to  compel  said  licensing 
1920,  fi30, 1 7.    authorities  to  grant  licenses. 


CONDITIONS   OF   LICENSES. 

fsTs^'og^le  Section  17.     Each  license  of  the  first  two  classes  shall  be  expressed     1 

p.  s.'ioq,  §9.     to  be  subject  to  the  following  conditions:  1906,395.  1913,  sss,  §6.  2 

1920,  630,  §  S.  126  Mass.  542.  150  Mass.  272. 


R.  L.  100, 
§§  17,41. 


145  Mass.  464. 


1S85,  90;  216. 
1889,  186;  ,361. 
1893,  417,  §  9. 
1898,  548,  §  6. 
R.  L.  11.  §  6. 
1907,  468;  560, 
§§  6,  456. 
1913,  S35, 
§503. 

140  Mass.  289. 
145  Mass.  244. 
152  Mass.  SOS. 
177  Mass.  221. 
182  Mass.  22. 


1891,  369. 
217  Mass.  507. 


First,  That  the  provisions  in  regard  to  the  nature  of  the  license,  and  3 
the  building  in  which  the  business  may  be  carried  on  under  it,  shall  be  4 
strictly  adhered  to.  5 

Second,  That  spirituous  or  intoxicating  liquor  shall  not  be  sold,  ex-  6 
changed  or  deli\ered,  or  exposed,  offered  or  kept  for  sale,  exchange  or  7 
delivery,  upon  the  licensed  premises.  8 

Third,  Certain  non-intoxicating  be\-erages  shall  not  be  sold  between  9 
the  hours  of  eleven  at  night  and  six  in  the  morning,  or  on  the  Lord's  10 
day  or  on  a  legal  holiday  or  any  day  on  which  a  national,  state,  city  or  11 
annual  town  election  is  held  in  the  city  or  town  in  which  the  licensed  12 
premises  are  situated;  but  if  the  licensee  is  also  licensed  as  an  inn-  13 
holder,  he  may,  between  the  hours  of  six  in  the  morning  and  eleven  at  14 
night,  on  the  Lord's  day,  a  legal  holiday  or  such  election  day,  supply  15 
such  be\'erages  to  persons  who  ha^•e  resorted  to  his  inn  for  food  or  16 
lodging.  17 

Fourth,  That  there  shall  be  no  disorder,  indecency,  prostitution,  18 
lewdness  or  illegal  gaming  on  the  licensed  premises,  or  any  premises  19 
connected  therewith  by  an  interior  communication.  20 

Fifth,  That  the  license,  or  a  copy  thereof,  certified  by  the  recording  21 
officer  of  the  licensing  board  or  by  the  clerk  of  the  city  or  town  by  which  22 
it  is  issued,  shall  be  displayed  on  the  premises  in  a  conspicuous  position,  23 
where  it  can  easily  be  read.  24 

Sixth,  That  the  license  shall  be  subject  to  forfeiture,  as  herein  pro-  25 
Aided,  for  breach  of  its  conditions,  and  that,  if  the  licensee  is  convicted  26 


Chap.  138.]  intoxicating  liquors,  etc.  1391 

27  of  a  violation  of  any  of  such  conditions,  his  Hcense  shall  thereupon  be- 

28  come  void. 

29  Each  license  of  the  first  class  shall  be  subject  to  the  further  con- 

30  dition  that  the  licensee  shall  hold  a  license  as  an  innholder  or  common 

31  \'ictualler. 

32  Each  license  to  a  common  victualler  shall  specify  the  room  or  rooms  is9i,  369. 

33  in  which  certain  non-intoxicating  beverages  shall  be  kept  or  sold,  and  iso  MaS:  issi 

34  the  holder  of  such  license  shall  not  keep,  sell  or  deliver  any  such  bever-    ^~' 

35  ages  in  any  room  or  part  of  a  building  not  so  specified. 

36  Licenses  of  the  third,  fourth  or  fifth  classes  shall  be  expressed  to  be 

37  subject  to  the  first,  fourth,  fifth  and  sixth  paragraphs  of  this  section. 

38  Each  license  of  the  third  or  fourth  class  shall  be  subject  to  the  fur-  is90, 272. 

39  ther  condition  that  all  spirituous  or  intoxicating  liquors  which  are  sold, 

40  exchanged  or  deli\-ered,  or  which  are  exposed  or  kept  for  sale,  exchange 

41  or  delivery,  shall  be  of  the  quality  required  for  their  sale  as  drugs  under 

42  the  laws  relative  to  food  and  drugs. 


CLASSES    OF    LICENSES. 

1  Section  18.     Licenses  shall  be  of  the  following  classes:  Five  classes 

2  First  class.    To  sell  malt  beverages,  cider  and  light  wines  containing  i86's,Tli!'§4; 

3  not  more  than  two  and  seventy-five  one-hundredths  per  cent  of  alcohol  1875, 99,  §  7. 

4  by  weight  at  sixty  degrees  Fahrenheit,  to  be  drunk  on  the  premises.       r'.l.\w).Vi8 

5  Second  class.    To  sell,  or  manufacture  and  sell,  malt  beverages,  cider  ^^~°'  ''^o.  §  9- 

6  and  light  wines  containing  not  more  than  two  and  seventy-five  one- 

7  hundredths  per  cent  of  alcohol  at  sixty  degrees  Fahrenheit,  not  to  be 

8  drunk  on  the  premises. 

9  Third  class.     Licenses  to  retail  druggists  to  sell  liquors  of  any  kind  Jlge,' 397,  §  13 

10  for  medicinal,  mechanical  or  chemical  purposes  only,  and  to  such  persons 

1 1  only  as  may  certify  in  WTiting  for  what  use  they  want  them. 

12  Fourth  class.     To  sell,  to  any  person  holding  a  third  or  fifth  class 

13  license,  or  a  certificate  of  fitness  imder  section  twenty-seven,  or  to  any 

14  person  lawfully  authorized  by  the  laws  of  the  L^nited  States  and  the 

15  regulations  made  thereunder  to  purchase  intoxicating  liquors,  intoxicat- 

16  ing  liquors  of  any  kind  for  other  than  beverage  pm-poses,  not  to  be  used 

17  on  the  premises. 

18  Fifth  class.     Licenses  to  dealers  in  paints  or  in  chemicals  to  sell  alcohol  ^^'^''-  ^^^'  § ' 

19  for  mechanical,  manufacturing  or  chemical  purposes  only. 


FEES   FOR    LICENSES. 

1  Section  19.    The  fees  for  licenses  shall  be  as  follows:  Fees. 

2  For  a  license  of  the  first,  second  or  fourth  class,  not  less  than  two  p.  s^"iod.  5  ii. 

3  hundred  and  fifty  dollars. 

ISSS,  341.  R.  L.  100,  §  19.  1920,  030,  §  10. 

4  For  a  license  of  the  third  or  fifth  class,  one  dollar. 

1  Section  20.    If  a  licensee  of  the  first,  second  or  fourth  class  dies  be-  Death  of 

2  fore  the  expiration  of  the  term  of  his  license,  or  if  a  license  has  been  ucensretc^." 

3  surrendered  and  cancelled,  the  authorities  issuing  the  license  may  issue  r^^l!  loo,  ^ ' 

4  another  license  of  either  of  such  classes,  and  the  two  licenses  shall  count  ^^zo.  ^_^^ 


5  as  one  license;  and  said  authorities  shall  require  as  a  license  fee  for  such  52°^' ^°''' 

6  second  license  a  part  of  the  license  fee  required  therefor  for  the  whole  year  1920,'  esb. 


1392 


INTOXICATING   LIQUORS,   ETC. 


[CH.4P.    138. 


1S9  Mass.  260. 
217  Mass.  233. 


proportionate  to  the  unexpired  term  of  the  license.  Said  authorities  may  7 
in  their  discretion,  in  cases  where  two  Hcenses  of  the  first,  second  or  fourth  8 
class  have  been  issued  in  the  same  year,  give  a  certificate  to  the  party  9 
to  whom  the  first  hcense  was  issued,  or,  in  case  of  his  death,  to  his  ad-  10 
ministrator  or  executor,  stating  that  a  part  of  the  fee  paid  therefor  pro-  1 1 
portionate  to  the  unexpired  term  of  the  Hcense  is  to  be  refunded  to  such  12 
party,  or  to  such  administrator  or  executor,  by  the  treasurer  of  the  city  13 
or  town  from  the  fees  thereafter  received  by  said  treasurer  for  licenses  14 
imder  this  chapter.  Said  treasurer  shall  comply  with  the  requirements  15 
of  such  certificate,  and  shall  retain  one  quarter  of  the  amount  so  paid  16 
from  any  money  thereafter  due  from  him  or  the  city  to  the  common-  17 
wealth  on  account  of  such  licenses.  If  a  licensee  dies  before  the  expira-  18 
tion  of  the  term  of  his  license,  the  city  or  town  by  which  it  was  granted  19 
may  refund  to  his  executor  or  administrator  a  part  of  the  license  fee  20 
proportionate  to  the  unexpired  term  of  the  license,  and  the  proportionate  21 
part  of  the  percentage  which  has  been  paid  to  the  commonwealth  shall  22 
be  refunded  to  the  city  or  town.  23 


REGULATION   OF   LICENSED  PREMISES. 


Entrances 
screens. 
1S80,  239, 
1881,225. 
P.  S.  100, 
1882,  259, 
R.  L.  100, 
1906,  374, 
1917,36. 
1920,  630, 

133  Mass. 
404. 

134  Mass. 
197. 

138  Mass. 

140  Mass. 
447. 

141  Mass. 
5S,  321. 
143  Mass. 
145  Mass. 
150  Mass. 
.504. 

158  Mass. 


and 

§2. 

§12. 
§  1. 
§34. 
§1. 

§12. 
192, 


511. 
441, 

28, 

92. 

244. 

320, 


Section  21.  The  authorities  which  grant  a  license  of  the  first  two 
classes  may  require  a  licensee  to  close  permanently  all  entrances  to  the 
licensed  premises  except  those  from  the  public  street  or  streets  upon 
which  said  premises  are  situated,  and  may  so  specify  in  the  license.  In 
such  case  the  construction  or  opening  of  any  such  entrance  shall  of 
itself  make  the  license  void.  A  licensee  holding  a  license  of  the  first  class 
shall  not  place  or  maintain  or  permit  to  be  placed  or  maintained,  in  any  7 
public  room  used  by  him  for  the  sale  of  certain  non-intoxicating  bever-  S 
ages  under  the  provisions  of  his  license,  any  screen,  blind,  shutter,  cur-  9 
tain,  partition,  or  painted,  ground  or  stained  glass  window,  or  any  other  10 
obstruction,  in  such  a  way  as  to  interfere  with  a  view  of  the  business  11 
conducted  on  the  premises,  and  the  placing  or  maintaining  of  any  of  12 
said  obstructions  shall  of  itself  make  the  license  void,  except  that  the  13 
licensing  authorities  in  their  discretion  may,  upon  application  of  a  14 
licensed  innholder  who  also  holds  a  license  to  sell  such  beverages,  per- -15 
mit  screens,  curtains,  or  such  other  obstructions  as  they  may  designate  16 
to  be  placed  at  the  windows  of  the  dining  rooms  of  the  hotel  maintained  17 
by  said  innholder  and  said  authorities  shall  have  the  power  to  revoke  18 
such  privilege.  19 


p?^lls°near        SECTION  22.     No  liccnsc  of  the  first  class  shall  be  granted  for  the  1 

wdden'"          ^^'^  '^^  Certain  non-intoxicating  be\'erages  in  any  building  or  place  on  2 

1I94'  1^9'         ^^^  same  street  as,  and  within  four  hundred  feet  of,  any  building  occupied  3 

R.  l!  100,  §  35.  in  whole  or  in  part  by  a  public  school;  but  this  section  shall  not  prevent  4 

1920,'  63o',  §  13.  the  granting  of  such  license  to  be  exercised  on  premises  fitted  up  and  5 

occupied  as  a  place  for  selling  such  beverages  under  a  license  and  by  a  G 

licensee  of  a  corresponding  class  of  the  preceding  year  although  said  7 

premises  are  within  four  hundred  feet  of  a  building  used  temporarily  8 

in  whole  or  in  part  for  school  purposes,  if  such  use  will  cease  permanently  9 

within  one  year  after  the  granting  of  said  license;   nor  shall  this  section  10 

prevent  the  granting  of  such  a  license  to  be  exercised  in  any  hotel  on  the  11 

same  street  as,  and  having  its  bar  more  than  four  hundred  feet  from,  12 

a  building  occupied  in  whole  or  in  part  by  a  public  school;    provided,  13 

that  there  is  no  public  bar  in  such  hotel.  14 


Chap.  13S.]  intoxicating  liquors,  etc.  1393 

1  Section  23.     No  license  of  the  first  two  classes  shall  be  granted  to  License  in 

2  be  exercised  in  a  dwelling  house  or  in  any  room  or  shop  having  any  orTtOT^con-'** 

3  interior  connection  or  means  of  communication  with  a  dwelling  or  tene-  "o^'iddra"' '' 

4  ment  of  any  family,  and  the  opening  or  maintaining  of  any  such  con-  if^f'j^^®' 

5  nection  or  means  of  commmiication  shall  render  the  license  void. 

K.  L.  100,  §§36,  37.  1920,  030,  §§  14,  IS.  150  Mass.  270. 

1  Section  24.     A  common  victualler  who  holds  a  license  under  this  Hours  of 

2  chapter  shall  keep  the  licensed  premises  closed  between  the  hours  of  common"'^ 

3  twelve  at  night  and  five  in  the  morning.  victuallers. 

1S82,  242,  §  1.  R.  L.  100,  §  40.  1020,  630,  §  16. 

DRUGGISTS. 

1  Section  25.     Druggists  having  a  third  class  license  may  sell  pure  saie  by 

2  alcohol  for  medicinal,  mechanical  or  chemical  purposes  without  a  phy-  isrlfgg^i  2. 

3  sician's  prescription,  the  said  sales  to  be  recorded  in  the  manner  pre-  J^§f  ^^{  || 

4  scribed  in  section  thirty-one.  isga,  397,  §  10. 

R.  L.  100,  §  21.  1907,  190.  1913,  410,  §  1.  Op.  A.  G.  (1918)  6. 

1  Section  2C.     No  license  for  the  sale  of  spirituous  or  intoxicating  Licenses  to 

2  liquor,  except  of  the  third  class,  shall  be  granted  to  retail  druggists.    One  issffwi,  §  i. 

3  or  more  licenses  of  the  third  class  may  be  granted  annually  by  the  li-  {goo;  loe."  ^ '"' 

4  censing  authorities  of  a  city  or  town  to  retail  druggists  who  are  regis-  J^qo' J27' |  f ^' 

5  tered  pharmacists  actively  engaged  in  business  on  their  own  account,  J-jo®!  525;  §  3. 

6  or  on  the  account  of  the  widow,  executor  or  administrator  of  a  deceased  i9i3;4io!  §  2. 

7  registered  pharmacist,  or  of  the  wife  of  one  who  has  become  incapacitated,  i9i8!257i 

8  upon  presentation  to  said  authorities  of  the  certificate  prescribed  by  the  fg^igl's. 

9  following  section,  if  it  appears  that  the  applicant  is  a  proper  person  to  isIVass.  273. 

10  receive  such  license,  and  is  not  disqualified  to  receive  it  under  the  pro-  ^-^  ^^^''^-  ^^■ 

11  visions  of  section  eighty-four.    A  registered  pharmacist  who  owns  stock 

12  of  the  actual  value  of  at  least  five  hundred  dollars  in  a  corporation 

13  which  has  been  incorporated  for  the  purpose  of  carrying  on  the  drug 

14  business,  and  who  conducts  in  person  the  business  of  a  store  of  such 

15  corporation,  shall  be  considered  as  actively  engaged  in  business  on  his 

16  own  account  and  as  qualified  to  receive  a  license  for  such  store.    The 

17  licensing  authorities  may  refuse  to  grant  any  and  all  such  licenses. 

1  Section  27.     The  board  of  registration  in  pharmacy  may,  upon  the  Certificate  of 

2  pajTnent  of  a  fee  of  not  more  than  five  dollars  by  an  applicant  for  a  license.  "'^ 

3  license  of  the  third  class,  issue  to  him  a  certificate  of  fitness,  which  shall  Jswil™! 

4  not  be  valid  after  one  year  from  its  date,  stating  that  in  the  judgment  of  ^'■'l'  ^qq'  |  23 

5  said  board  he  is  a  proper  person  to  be  intrusted  with  such  license  and  J^oii,  281,  §  2. 

6  that  the  public  good  will  be  promoted  by  the  granting  thereof.     The  mob,  261,  §  1. 

7  board  and  the  licensing  authorities  of  the  cities  and  towns  mentioned  in 

8  the  following  section  may,  after  giving  a  hearing  to  the  parties  inter- 

9  ested,  revoke  or  suspend  such  certificate  for  any  cause  which  they  may 

10  deem  proper,  and  such  revocation  or  suspension  shall  re\'oke  or  suspend 

1 1  the  third  class  license  granted  thereon. 

1  Section  28.     In  any  city  or  town  where  licenses  of  the  first  two  saie  of  aicohoi 

2  classes  are  not  granted,  registered  pharmacists  to  whom  a  certificate  of  riguiated.'"'"''^ 

3  fitness  has  been  issued  as  provided    by  the  preceding  section  may  sell  J9?.3;  ffs,' ^ '' 

4  pure  alcohol  for  medicinal,  mechanical  or  chemical  purposes  without  a  M'^'q 

5  physician's  prescription,  such  sales  to  be  recorded  in  the  manner  pro-  09i9)  72. 


1394 


INTOXICATING  LIQUORS,   ETC. 


[Chap.  138. 


vided  in  section  thirty-one,  and  may  sell  intoxicating  liquors  or  certain  0 

non-intoxicating  beverages  upon  the  prescription  of  a  registered  physician  7 

practicing  in  such  city  or  town,  provided  that  the  prescription  is  dated,  8 

contains  the  name  of  the  person  prescribed  for,  and  is  signed  by  the  9 

physician.    All  such  prescriptions  shall  be  retained  and  kept  on  file  in  10 

a  separate  book  by  the  pharmacist  filling  the  same,  and  shall  not  be  11 

filled  a  second  time.     Such  prescription  book  shall  be  open  at  all  times  12 

to  the  inspection  provided  by  section  thirty-two.  13 


Druggist's 
license  to  be- 
come void  in 
certain  cases. 
1893,  472,  §  S. 
1896,  397,  §  12. 
R.  L.  100,  §  24. 


Section  29.  A  license  of  the  third  class  shall  become  null  and  void 
without  any  process  or  decree,  if  the  registered  pharmacist  to  whom  it 
has  been  granted  ceases  to  conduct  his  business  in  person  and  on  his 
own  account,  or  upon  the  revocation  of  his  certificate  of  registration  as  a 
pharmacist,  unless  the  registered  pharmacist  has  been  unable  to  so  con- 
duct his  business  or  has  died,  and  his  business  is  continued  by  his  ■wife, 
Andow,  executor  or  administrator  under  another  registered  pharmacist. 


Sale  only  on 
certificate. 
1838,  157,  §  2. 
1SS5,  215,  §  2. 
G.  S.  86.  §  26. 
1869,415,  §28. 
1870,  389.  I  4. 
1875,  99,  §  2. 
P.  S.  100,  §  2. 
18S7,  431.  §  2. 
1896,  397,  §  13. 


Section  30.  Retail  druggists  shall  not  sell  intoxicating  liquor  of  any 
kind  or  certain  non-intoxicating  beverages  for  medicinal,  mechanical  or 
chemical  purposes  except  upon  the  certificate  of  the  purchaser,  which 
shall  state  the  use  for  which  it  is  wanted,  and  which  shall  be  immedi- 
ately cancelled  at  the  time  of  sale  in  such  manner  as  to  show  the  date 
of  cancellation.  R.  l.  loo,  §  25,  i48  Mass.  160. 


156  Mass.  233. 


158  Mass.  482,  499. 


Penalty,  §  87. 


Record  book 
for  sales  of 
liquor.     Cer- 
tificate. 
1855.  215,  §  2. 
G.  S.  86,  §  26. 
1869,  415.  §  28. 
1872.271. 
1878,  203,  §  2. 
P.  S.  100,  §  3. 
1887,431,  §3. 
1896,  397,  §  14. 
1901,91. 
R.  L.  100,  §  26. 
155  Mass.  291. 
Op.  A.  G. 

(1918)  6. 
Op.  A.  G. 

(1919)  71. 

Penalty,  §  S7. 


Section  31.     Every  retail  druggist  shall  keep  a  book  in  which  he  1 

shall  enter,  at  the  time  of  every  such  sale,  the  date  thereof,  the  name  of  2 

the  purchaser,  the  kind,  quantity  and  price  of  said  liquor  or  beverage,  3 

the  purpose  for  which  it  was  sold,  and  the  residence  by  street  and  number,  4 

if  any,  of  said  purchaser.     If  such  sale  is  made  upon  the  prescription  5 

of  a  physician,  the  book  shall  also  contain  the  name  of  the  physician  6 

and  shall  state  the  use  for  which  said  liquor  or  be\erage  is  prescribed  7 

and  the  quantity  to  be  used  for  such  purpose,  and  the  prescription  shall  8 

be  cancelled  in  the  manner  provided  in  the  preceding  section  with  refer-  9 

ence  to  certificates.    Said  book  shall  be  in  form  substantiallv  as  follows:  10 


Date. 


Name  of 
Purchaser. 


Residence. 


Kind  and 
Quantity. 


Purpose 
of  Use. 


Price. 


Name  of 
Physician. 


The  certificate  mentioned  in  the  preceding  section  shall  be  a  part  of  11 

said  book  and  shall  not  be  detached  therefrom,  and  shall  be  in  form  sub-  12 

stantially  as  follows :  13 

Certific.A-TE. 

I  wish  to  purchase  and  I  certify  that  I  am  not  a  minor  and 

that  the  same  is  to  be  used  for  *  Mechanical  *  Chemical  *  Medicinal  purposes. 
(*  Draw  a  line  through  the  words  which  do  not  indicate  the  purpose  of  the  purchase.) 

Signature 

Cancelled 


Books,  etc., 

open  to 

inspection. 

1855,  215,  §  2.  _ 

?869  ^'s^Im  °"®  ^'^^^^  ^^  ^'^  times  be  open  to  the  inspection  of  the  board  of  regis-    3 
1872!  271.'         tration  in  pharmacy,  the  licensing  board  in  cities  ha\'ing  such  boards    4 


Section  32.     The  book,  certificates  and  prescriptions  provided  for  in 
the  two  preceding  sections  and  the  book  pro^•ide(^  for  in  section  forty- 


Chap.  138.]  intoxicating  liquors,  etc.  1395 

5  and  in  all  other  cities  and  towns,  to  the  inspection  of  the  aldermen,  is78. 203,  §  2. 

6  selectmen,  overseers  of  the  poor,  sheriffs,  constables,  police  officers  and  rs87,43i'.|4. 

7  justices  of  the  peace.         isoe,  307,  §  15.         is97, 39s,  §  4.         r.  l.  100,  §  27. 

1918,  257,  §341.  1919,5.  1920,2.  Penalty,  §  87. 

1  Section  33.     A  person,  not  a  registered  pharmacist,  who  procures  Penalty  for 

2  a  third  class  license  for  the  sale  of  intoxicating  liquors  in  the  name  fn'nameot"'^ 

3  of  a  registered  pharmacist  who  is  dead,  or  in  the  name  of  a  registered  5'893"4''72'''§  4 

4  pharmacist  by  borrowing,  hiring  or  purchasing  the  use  of  his  certificate,  Jf^j^'  397, 1 17. 

5  and,  being  himself  the  owner  or  manager  of  the  place,  personally  or 

6  by  his  servants  sells  intoxicating  liquor,  shall  be  punished  by  a  fine 

7  of  not  less  than  fifty  nor  more  than  five  hundred  dollars  and  by  im- 

8  prisonment  for  not  less  than  one  nor  more  than  six  months.     Section 

9  eleven  of  chapter  tM'o  hundred  and  seventy-nine  shall  not  apply  to  a 
10  conviction  under  this  section. 

SALE   OF  wood   ALCOHOL. 

1  Section  34.     No  person  other  than  a  registered  druggist  shall  en-  Manufacture, 

2  gage  in  the  business  of  manufacturing,  buying,  selling  or  dealing  in  woo/aic'ohoi, 

3  methyl  alcohol,  or  wood  alcohol,  so  called,  or  denatured  alcohol,  or  any  ficensTby""' 

4  preparation  used  for  manufacturing  or  commercial  purposes  which  con-  °*j|ter'^d° 

5  tains  more  than  three  per  cent  of  any  of  the  said  alcohols  and  is  intended  f™b1f['|*„ 

6  for  use  other  than  as  a  beverage,  without  being  licensed  so  to  do  by  the  i9i9,36o,'§  1. 

7  board  of  health  of  the  town  where  the  business  is  conducted. 

1  Section  35.     The  board  of  health  of  each  town  may  issue  licenses  Licenses  to 

2  under  the  preceding  section,  upon  the  paj-ment  of  a  fee  of  one  dollar,  to  sefiretcl'wo^t^ 

3  such  persons  as  it  shall  find  to  be  properly  qualified  to  carry  on  the  said  i9''°9''°36o*s'2 

4  business.    The  licenses  shall  expire  on  April  thirtieth  of  each  year,  and 

5  may  at  any  time  be  suspended  or  revoked,  for  cause,  by  the  board.    The 

6  board  shall  keep  a  record  of  all  such  licenses. 

1  Section  36.    Every  barrel  or  keg  containing  methyl  alcohol  or  wood  on  TOnfa'nera 

2  alcohol,  so  called,  or  denatured  alcohol  containing  methyl  alcohol,  or  "f^^hof  etc 

3  any  drug  or  medicine  intended  for  external  use  containing  methyl  alcohol,  Penalty. 

4  shall  bear  in  capital  letters  not  less  than  three  fourths  nor  more  than  i9io;54i:§i; 

5  one  and  one  half  inches  in  height,  stencilled  thereon  or  printed  upon  a  1920,'  isi'  ^  ^' 
•6  label  affixed  thereto,  the  words  "POISON,  NOT  FOR  INTERNAL 

7  USE".     Every  other  container  of  any  such  alcohol,  drug  or  medicine 

8  shall  bear  a  label  of  white  paper  on  which  shall  be  printed  in  red  capital 

9  letters  not  less  than  one  fourth  of  an  inch  in  height,  the  words  "  DEADLY 

10  POISON",  the  name  and  place  of  business  of  the  vendor,  and  the  state- 

11  ment  that  he  is  a  registered  druggist  or  the  number  of  his  license  under 

12  the  two  preceding  sections,  and,  in  legible  tvpe,  the  words  "NOT  FOR 

13  INTERNAL   USE,    CAUSES   BLINDNESS.      KEEP   FROM   THE 

14  EYES."    Whoever,  himself  or  by  his  servant  or  agent,  sells,  exchanges 

15  or  delivers  any  such  alcohol,  drug  or  medicine  in  any  container  not  con- 

16  forming  to  this  section  shall  be  punished  by  a  fine  of  not  less  than  fifty 

17  nor  more  than  two  hundred  dollars. 

1  Section  37.    The  sale  of  methyl  alcohol,  wood  alcohol,  so  called,  de-  osence  of 

2  natured  alcohol,  or  any  preparation  containing  alcohol  as  described  in  ""wood  "^^  ^ 

3  section  thirty-four,  by  a  person  not  licensed  as  required  by  sections  loTg'llJeo.'M. 

4  thirty-four  and  thirty-five,  or  by  a  licensee  to  a  minor  or  to  any  person 


1396 


INTOXICATING   LIQUORS,   ETC. 


[Chap.  1.38. 


without  reasonable  investigation  and  inquiry  to  determine  that  the  same  .5 
is  not  to  be  used  for  drinking  purposes,  shall  constitute  the  offence  of  6 
unlawful  sale  of  alcohol  and  may  be  described  as  such  in  any  complaint  7 
or  indictment  without  more;  but  a  person  so  charged  shall  be  entitled  8 
to  a  bill  of  particulars  in  accordance  with  section  forty  of  chapter  two  9 
hundred  and  seventv-seven.  10 


Penalty. 
1919,  360,  §  ,^. 


Section  38.    Except  as  otherwise  provided  in  section  thirty-six,  vio-  1 

lation  of  any  provision  of  sections  thirty-four  to  thirty-seven,  inclusive,  2 

shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  3 

imprisonment  in  the  house  of  correction  for  a  term  not  exceeding  six  4 

months,  or  both.  5 


LICENSES  to   dealers   IN   PAINTS   AND   CHEMICALS. 

deaferein"  Section  39.    The  licensing  authorities  of  a  city  or  town  may  annu- 

i897!398!'§  1.    'I'ly  grant  a  license  of  the  fifth  class,  for  the  sale  of  pure  alcohol  for 
R.  L.  100,  §  30.  mechanical,  manufacturing  or  chemical  purposes  only,  to  a  dealer  in 
paints  or  in  chemicals  who  applies  therefor,  if  it  appears  that  the  appli- 
cant is  a  proper  person  to  recei^•e  such  license  and  that  he  is  actually 
carrying  on  business  as  a  dealer  in  paints  or  chemicals. 


cdmrvoid  in  Section  40.  A  license  of  the  fifth  class  shall  become  null  and  ^•oid  1 
is97,'39s!T2.  '^^'ithout  any  process  or  decree  if  the  licensee  ceases  to  carry  on  the  2 
R.  L.  100,  §  31.  business  of  dealing  in  paints  or  chemicals.  3 


for's°ak3:'°°''  Section  41.     E\-ery  dealer  in  paints  or  chemicals  to  whom  such 

sfes'eftio'n^.^l  l'<^dse  is  granted  shall  keep  a  book  in  which  he  shall  enter,  at  the  time 
R.  L.  100,  §  32.  of  every  sale  of  alcohol,  the  date  thereof,  the  name  and  residence  of 
Penalty,  §  87.    the  purchascr,  his  residence  by  street  and  number,  if  any,  the  quantity 

and  price  of  the  alcohol  sold,  and  the  purpose  for  which  it  is  to  be  used. 

Said  book  shall  be  in  form  substantially  as  follows: 


Date. 


Name  of 
Purchaser. 


Residence,  giving 

Street  and  Number, 

if  Any. 


Quantity. 


Price. 


Purpose  of 


ReBlIing  of 
bottles. 
1917,  150, 
S§1,2. 

Penalty,  §  89. 


Section  42.     All  persons  holding  licenses  to  sell  intoxicating  liquors  1 

shall,  immediately  upon  the  emptying,  within  the  limits  of  the  licensed  2 

premises,  of  the  original  contents  of  a  bottle  containing  liquors  other  3 

than  malt  liquors,  and  before  refilling  the  same,  destroy  all  labels  or  4 

printed  marks  thereon.     There  shall  not  thereafter  be  placed  on  such  5 

bottles  any  label  or  printed  mark  so  similar  to  the  original  as  to  promote  6 

fraud  or  deceit,  or  as  to  be  likely  to  be  mistaken  for  the  original  label  or  7 

mark.     This  section  shall  not  be  construed  to  prohibit  the  lawful  refilling  8 

of  such  bottles  ^\^th  liquors  true  to  label  by  the  persons  entitled  to  use  the  9 

original  label  or  mark  or  their  agents.  10 


Payment  of  fee 
and  bond. 
1875,  99,  §  9. 
P.  S.  100,  §  13. 
18.S2,  259,  §  2. 
1885,83; 
323,  §  2. 


BONDS    AND   TRANSFERS    OF    LICENSES. 

Section  43.  A  license  shall  not  be  issued  until  the  license  fee  has 
been  paid  to  the  treasurer  of  the  city  or  town  by  which  it  is  to  be  issued, 
nor  until  he  has  received  a  satisfactory  bond,  payable  to  him  as  such 
treasurer,  in  the  sum  of  five  hundred  dollars,  signed  by  the  licensee  and 


221  Mass.  395. 


Chap.  138.]  intoxicating  liquors,  etc.         '  1397 

5  sufficient  surety  or  sureties,  who  shall  be  jointly  and  severally  liable,  and  il94'f2s'§4 

6  conditioned  for  the  payment  of  all  costs,  damages  and  fines  which  may  f^.^-  joo.  §  42. 

7  be  incurred  by  a  Nnolation  of  the  provisions  of  this  chapter.     Separate  127  Mass'.  497. 

8  actions  may  be  brought  on  such  bond  by  any  person  at  his  own  expense.  i77Mkss.i97: 

9  Such  bond,  after  approval,  shall  be  filed  in  the  office  of  the  city  or  town  217  Mass!  507! 

10  clerk,  and  a  certified  copy  thereof  shall  be  admissible  in  ev'idence.     No 

11  such  bond  shall  be  accepted  or  appro \ed  until  each  surety  has  made  and 

12  subscribed  a  statement  under  oath  that  he  is  worth  not  less  than  one 
1.3  thousand  dollars  over  and  above  all  liabilities  and  indebtedness,  and  the 

14  statement  so  made  shall  designate  sufficient  property,  real  or  personal, 

15  to  cover  the  requirement  of  the  bond  and  shall  be  kept  on  file  with  the 

16  bond.     The  bond  may  be  in  the  following  form: 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  we,  A.  B.,  of 
as  principal,  and  C.  D.  and  E.  F.  of  ,  as  sureties,  are 

held  and  firmly  bound  unto  the  treasurer  of  the  city  (or  town)  of  , 

in  the  sum  of  five  hundred  dollars,  to  which  paj-ment  well  and  truly  to  be  made 
we  bind  ourselves  and  our  legal  representatives. 

Sealed  with  our  seals  this  day  of  ,  A.D.  19 

The  condition  of  this  obligation  is  such,  that  whereas  the  above  bounden 
A.  B.  has  this  day  been  licensed  by  license  No.  ,  by  the  aldermen  (board 

of  police  or  licensing  board)  of  the  citj'  of  (or  the  selectmen  of  the  town  of) 

,  in  the  countj^  of  ,  now  if  the  said  A.  B.  shall  well 

and  truly  comply  with  all  the  provisions  of  law,  then  this  bond  shall  be  void;  but 
otherwise  in  force. 

Executed  in  presence  of 

1  Section  44.     No  person,  except  a  corporation  organized  for  the  pur-  sureties 

2  pose  of  acting  as  surety  on  bonds  and  duly  qualified  to  do  business  in  the  ?s94?3ss. 

3  commonwealth,  shall  be  accepted  as  surety  upon  more  than  ten  bonds  ^^l[  }q^-  5  43 

4  which  may  be  given  under  the  preceding  section.     Each  surety,  except  as  i^^"-  '^^°'  5  is- 

5  aforesaid,  shall  make  a  written  statement,  under  oath,  that  he  is  not  a 

6  surety  upon  more  than  nine  other  bonds  given  under  said  section,  and 

7  such  statement  shall  be  kept  on  file  with  the  bond. 

1  Section  45.     Licensing  authorities  may  transfer  licenses  from  one  Transfer  of 

2  location  to  another  within  the  city  or  town  in  which  such  licenses  are  in  issa^s^. 

3  force;   but  such  transfer  shall  be  granted  only  to  the  original  licensee,  1920',  oaa  I  la 

4  and  like  notice  shall  be  given,  the  same  provisions  shall  apply,  and  other 

5  proceedings  shall  be  the  same  as  are  required  upon  the  granting  of  li- 

6  censes,  except  that  no  new  license  fee  shall  be  reciuired. 

1  Section  46.     The  treasurer  of  a  city  or  town  shall,  within  thirty  days  One  quarter  of 

2  after  the  receipt  of  money  for  licenses  of  the  first,  second  and  fourth  to^commoS-' 

3  classes,  make  a  return  of  the  amount  thereof  to  the  state  treasurer  and  peniuy. 

4  at  the  same  time  shall  pay  to  him  one  fourth  of  the  amount  so  received,  }|75;9"|\J^' 

5  and  for  neglect  thereof  he  shall  pay  interest  at  the  rate  of  six  per  cent  P^gS.  100,  §  14. 

6  per  annum  on  the  amount  of  such  receipts  from  the  time  they  become  isgsisoi! 

7  due  until  they  are  paid.  R.  l.  100,  §  45.  1020,  eso,  §  20. 

213  Mass.  271.  221  Mass.  395.  Op.  .\.  G.  (1919)  118. 

PENALTIES    FOR    ILLEGAL   SALE.       SEIZURE.       CIVIL   DAMAGES. 

1  Section  47.     The  licensing  board  of  a  city,  the  selectmen  of  a  town.  Entry  on 

2  or  any  police  officer  or  constable  specially  authorized  by  either  of  them,  prlmisea  for 

3  may  at  any  time  enter  upon  the  premises  of  a  person  who  is  licensed  under  and'taSng" 

4  this  chapter,  to  ascertain  the  manner  in  which  such  person  conducts  his  i|o8^'i4i,  §  i4. 


1398  V  INTOXICATING   LIQUORS,   ETC.  [Ch.\P.    138. 

R  s^'ioo.Vi^s.   business  and  to  preserve  order.    Such  police  officer  or  constable  may  at     5 

mo'  63o'  1 21'  ^^^y  time  take  samples  for  analysis  from  any  liquors  kept  on  such  prem-     6 

126  Mass.  269.    ises,  and  the  vessel  or  vessels  containing  such  samples  shall  be  sealed  on     7 

the  premises  by  the  seal  of  the  vendor,  and  shall  remain  so  sealed  until     8 

presented  to  the  department  of  public  health  for  analysis  and  duplicate     9 

samples  shall  be  left  with  the  dealer.  10 

oUia-nse"             Section  48.     The  licensing  board,  after  notice  to  the  licensee  and  1 

§n.'i'"'          reasonable  opportunity  for  him  to  be  heard  by  them  or  by  a  committee  2 

§§'1^2 ^^6           °^  t^^  aldermen  or  by  the  selectmen,  if  the  license  was  granted  by  them,  .3 

p^'i'wo'iie    ^^y  declare  his  license  forfeited,  or  may  suspend  his  license  for  such  4 

1885, 323,  §2.'   period  of  time  as  they  may  deem  proper,  upon  satisfactory  proof  that  5 

R.  l!  loo',  §  47.  he  has  violated  or  permitted  a  violation  of  any  condition  thereof,  or  6 

1920,'  o3o'  §  22.  any  law  of  the  commonwealth.    If  the  license  is  declared  to  have  been  7 

12s  Mass.' 76^'   forfeited,  the  licensee  shall  be  disqualified  to  receive  a  license  for  one  8 

163  Mass'  470    -^'^^^  after  the  expiration  of  the  term  of  the  license  so  forfeited,  and  if  he  is  9 

the  owner  of  the  premises  described  in  such  forfeited  license,  no  license  10 

shall  be  issued  to  be  exercised  on  said  premises  for  the  residue  of  the  11 

term  thereof.  12 

fc)7da'mages^         SECTION  49.     A  wife,  husband,  child,  parent,  guardian,  conservator,  1 

fntox^a'tecT"      cmploycr  or  other  person  who  is  injured  in  person,  property  or  means  of  2 

is-5'"2i-  « 22  support  by  an  intoxicated  person,  or  in  consequence  of  the  intoxication,  3 

G.  s.'se,  §39.  ■  habitual  or  otherwise,  of  any  person,  shall  have  a  right  of  action  in  his  4 

1869.  415,  §41.  .    .     ,,  •',,^  .'  I  U  IT  C 

1875,99,  §14.    own  name,  jointly  or  severally,  agamst  any  person  who,  by  selling  or  5 

is8o!  239',  I  i;    .giving  intoxicating  liquor,  has  caused  in  whole  or  in  part  such  intoxica-  6 

Rs.^oo.  tion;   and  any  person  who  owns,  rents,  leases,  or  permits  the  occupation  7 

R  l'ioo  §  58  °^  ^'■^y  building  or  premises,  and  has  knowledge  that  intoxicating  liquor  8 

^ik^iP-  ,co    is  to  be  sold  therein,  or  who,  having  leased  the  same  for  other  purposes,  9 

130  Mass.  158,     ,  .  .         ',  .        '  ,  .    ■  ....  i      ii      -p  i  rv 

366.  knowingly  permits  therein  the  sale  of  intoxicating  liquor,  shall,  11  anv  10 

132  Mass.  567.  I     ]•  t  I  •  4-1  •  •  I,    1  •  i   4.1        •    4-       •      1  l 

133  Mass.  86.  sucii  liquor  sold  or  given  therein  causes  m  whole  or  in  part  the  intoxi-  11 
i52Massl4ol  catiou  of  a  person,  be  liable  jointly  or  severally  with  the  person  who  12 
157 Mass.' 333.  sells  Of  gives  intoxicatiug  liquor  as  aforesaid,  for  all  damages  sustained;  13 
Jon  i}"^'*' f !?■  and  the  same  mav  be  recovered  in  an  action  of  tort;    but  a  lessor  of  14 

180  Mass.  141.  i  '       t  .  .1 

203  Mass.  37  rcal  cstatc  shall  not  be  liable  for  such  damages  if  the  occupant  holds  a  15 
license  for  the  sale  of  such  liquor.  A  married  woman  may  bring  such  16 
action  in  her  own  name,  and  all  damages  recovered  by  her  shall  enure  17 
to  her  separate  use;  and  all  damages  recovered  by  a  minor  shall  be  18 
paid  either  to  such  minor,  or  to  such  person  in  trust  for  him,  and  on  19 
such  terms,  as  the  court  may  order.  Upon  the  death  of  either  party,  20 
the  action  and  right  of  action  shall  survive  to  or  against  his  executor  21 
or  administrator.  The  party  injured  or  his  legal  representative  may  22 
bring  either  a  joint  action  against  the  person  intoxicated  and  the  person  23 
who  furnished  the  liquor,  or  a  separate  action  against  either.  24 

own'er°ifflying  SECTION  50.  An  owucr  or  Icssor  of  real  estate  who  pays  money  on  1 
money  for         account  of  liis  liabilitv  incurred  under  the  preceding  section  for  an  act     2 

tenant.  p   -i   •  .'  ..  ci  lo 

1879,297,  §3.  of  his  tcuaut  may,  in  an  action  ot  contract,  recover  of  such  tenant  the  o 
money  so  paid.  p.  s.  loo,  §  22.  r.  l.  100,  §  59.  4 

dgKI'nor  Section  51.  Whoever  employs  a  minor  under  eighteen  in  handling  1 
ii°uo"'"''  intoxicating  liquors  or  packages  containing  such  liquors  in  a  brewery     2 


Chap.  138.]  intoxicating  liquors,  etc.  1399 

3  or  bottling  establishment  in  which  such  liquors  are  prepared  for  sale  or  1899,413. 

4  offered  for  sale  shall  be  punished  by  a  fine  of  not  less  than  fifty  dollars  '    ''  ' 

5  or  by  imprisonment  for  not  less  than  three  months,  or  both. 

1  Section  52.     Whoever,  personally  or  by  his  agent  or  servant,  sells  Penalty  for 

2  or  gives  intoxicating  liquors  to  a  minor,  either  for  his  own  use,  the  use  fkfuor'to'^ 

3  of  his  parent  or  of  any  other  person,  or  allows  a  minor  to  loiter  upon  the  frse'l's.  §  7. 

4  premises  where  such  sales  are  made,  shall  forfeit  one  hundred  dollars  Jss?' il'g^  f  jo 

5  for  each  offence,  to  be  recovered  by  the  parent  or  guardian  of  such  minor  fcnl' ^'^■/^s '■ 

6  in  an  action  of  tort.     Actions  for  penalties  under  this  section  shall  be  ists'qd.  §15. 

7  commenced  within  two  years  after  the  offence  has  been  committed.  issV,  390;  §  1. ' 

R.  L.  100,  §  62.  171  Mass.  250.  235  Mass.  559. 

124  Mass.  277,  578.  207  Mass.  21. 

130  Mass.  167.  217  Mass.  507.  Druggists  excepted,  §  85. 

145  Mass.  311. 

1  Section  53.     No  minor  seventeen  years  of  age  or  over  shall  make  a  Penalty  for 

2  false  statement  as  to  his  age  in  order  to  procure  a  sale  or  delivery  of  in-  mlfnt^o^age 

3  toxicating  liquor,  either  for  his  own  use  or  for  the  use  of  another.     No  Jfrocm" liquor. 

4  person  shall  knowingly  make  a  false  statement  as  to  the  age  of  a  minor  i^i-'  °^'^-  ^  ^■ 

5  in  order  to  procure  a  sale  or  delivery  of  intoxicating  liquor  to  such  minor, 

6  either  for  the  use  of  the  minor  or  for  the  use  of  some  other  person,  or 

7  induce  a  minor  to  make  a  false  statement  as  to  his  age  in  order  to  procure 

8  a  sale  or  deli\"ery  of  intoxicating  liquor  to  such  minor.    Whoever  violates 

9  this  section  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than 
10  one  hundred  dollars. 

1  Section  54.     The   department   of  public   health   shall  inspect  and  if°*^^y°' 

2  analyze  all  liquors  sent  to  it  by  the  licensing  board  of  any  city,  the  select-  department 

3  men  of  any  town,  or  by  police  officers  or  other  officers  authorized  by  health. 

4  law  to  make  seizures  of  liquors,  if  the  department  is  satisfied  that  the  i872;206,'§2." 

5  analysis  requested  is  to  be  used  in  connection  with  the  enforcement  is7s!244,§'2! 

6  of  the  laws  of  the  commonwealth.     It  shall  return  to  such  licensing  ^~i,'ioo.' i 29. 

7  board,  selectmen,  police  or  other  officers,  as  soon  as  may  be,  a  certificate  r^l  wo'leV. 

8  signed  by  it  of  the  percentage  of  alcohol  by  weight  at  sixty  degrees  i90|.  110 

9  Fahrenheit  which  such  samples  of  liquor  contain.    Such  statement  shall  1919',  350',  §  96. 

10  be  prima  facie  evidence  of  the  composition  and  quality  of  the  liquors  to 

11  which  it  relates. 

1  Section  55.     A  certificate  shall  accompany  each  sample  of  liquor  Certificate  to 

2  sent  for  analysis  by  an  officer  to  the  department  of  public  health  stating  samS'e^''"^ 

3  by  whom  the  liquor  was  seized,  the  date  of  the  seizure  and  the  name  and  1**1^;  100,' |  Is. 

4  residence  of  the  officer  who  seized  said  liquor.     Said  department  shall  JgJj'iflSji 

5  note  upon  said  certificate  the  date  of  the  receipt  and  the  analvsis  of  said  1919!  350',  §96. 

n    T  11  piiii  ■111*'  1'  l"*'  J^lass.  444. 

0  hquors  and  the  percentage  01  the  alcohol,  as  required  by  the  preceding 
7  section.    Said  certificate  may  be  in  the  following  form: 

ss. 

CiTT  OP  (or  Town  of)  19     . 

To  the  Department  of  Public  Health . 

Sirs  :  —  I  send  you  herewith  a  sample  of  taken  from  liquors 

seized  by  me  (date)  19     . 

Ascertain  the  percentage  of  alcohol  it  contains,  by  weight,  at  sixty  degrees 
Fahrenheit,  and  return  to  me  a  certificate  herewith  upon  tlie  annexed  form. 

Constable  of 
Police  officer  of 


1400 


INTOXICATING    LIQITQRS,    ETC. 


[Chap.  1.38. 


COMMONT\"EALTH    OF    MASSACHUSETTS. 


Department  of  Public  Health, 
Boston,  19     . 

This  is  to  certify  that  the  received  by  this  Department  with  the 

above  statement  and  anal_vzed  by  me  contains  per  cent  of  alcohol, 

by  weight,  at  sixty  degrees  Fahrenheit. 

Received  19     . 

Analysis  made  19     . 

Department  of  Public  Health, 
By 


Analyst. 


to protide'^"^^  SECTION  56.  The  State  secretary  shall  pro\-ide  and  cause  officers  to 
Certfficateto  ^®  Supplied  with  a  suitable  number  of  the  forms  prescribed  by  the  pre- 
heevidence.  ceding  sectiou.  The  certificate  of  the  department  of  public  health,  given 
R.  l!  loo',  §  69.  substantially  in  the  form  hereinbefore  set  forth,  shall  be  admitted  as 
evidence  on  trials  for  the  forfeiture  of  intoxicating  liquors  as  to  the  com- 
position and  quality  of  the  liquors  to  which  it  relates. 


Ifth^frJfpks  Section  57.  No  person  shall  tamper  with  samples  of  liquor  taken  as  1 
is8'''22i'' §  4  pro\'ided  in  section  forty-seven  or  alter  the  statements  made  upon  the  2 
R.  L.  loo',  §  70.  forms  or  certificates  aforesaid.  Penalty,  { 87.  3 


Court  may 
order  analysis. 
1882,  221,  §  5. 
R.  L.  100,  §  71. 


Section  58.  Any  court  or  trial  justice  may  cause  liquors  which  have 
been  seized  under  this  chapter  to  be  analyzed  by  a  competent  chemist, 
and  the  reasonable  expense  thereof,  including  a  fee  of  not  more  than 
five  dollars  for  each  analysis,  shall  be  taxed,  allowed  and  paid  hke  other 
expenses  in  criminal  cases. 


Delivery  of 
liquor  prima 
facie  evidence 
of  sale  in  cer- 
tain cases. 
1855,  215,  §  34. 
G.  S.  86,  §  33. 
1868,  141,  §  20. 
1869,415,  I  35. 
1875,  99,  §  17. 
P.  S.  100,  §  26. 


Section  59.    The  delivery  of  intoxicating  liquor  in  or  from  a  building,  1 

booth,  stand  or  other  place,  except  a  private  dwelling  house,  or  in  or  2 

from  a  private  dwelling  house  if  any  part  thereof  or  its  dependencies  is  3 

used  as  an  inn,  eating  house  or  shop  of  any  kind,  or  other  place  of  com-  4 

mon  resort,  such  deli\ery  in  either  case  being  to  a  person  not  a  resident  5 

therein,  shall  be  prima  facie  evidence  that  such  delivery  is  a  sale.  6 

231  Mass.  65. 


R.  L.  100,  §  C4. 
12  Gray,  127. 


14  Gray,  47. 
7  Allen,  S2S. 


103  Mass.  58. 
219  Mass.  37. 


fafie^e''v'id"nce        Section  60.     If  any  placard,  sign  or  advertisement  is  exposed  from,  1 

saieln^ceftlTn    maintained  in  or  permitted  to  remain  upon  any  vehicle,  shop,  stand,  2 

ifii'iu  s  1     tenement,  or  any  place  of  common  resort,  purporting  or  designed  to  3 

R.  l!  loo',  §  65.  announce  the  keeping  in  or  upon  said  vehicle  or  any  of  said  premises  of  4 

spirituous  or  intoxicating  liquors,  except  in  drug  stores,  it  shall  be  prima  5 

facie  evidence  that  such  liquors  are  kept  in  or  upon  such  \-ehicle  or  prem-  6 

ises  for  sale.  7 


Search 
warrant. 
1S.52,  322,  §  14. 
1855,  215,  §  25. 
G.  S.  86,  §  42. 
1869,  415,  §  44. 
1876,  162,  §  1. 

1878,  207,  I  3. 

1879,  305,  I  9. 
P.  S.  100,  §  30. 
1881,  191;  28U. 
1887,  406,  §  1. 
1888,297. 
1897,  487,  §  2. 


Section  61.    If  two  persons  of  full  age  make  complaint  to  a  district  1 

court  or  trial  justice  that  they  ha\-e  reason  to  believe  and  do  belie\"e  that  2 

spirituous  or  intoxicating  liquor,  described  in  the  complaint,  is  kept  or  3 

deposited  by  a  person  named  therein  in  a  store,  shop,  warehouse,  build-  4 

ing,  vehicle,  steamboat,  vessel  or  place,  and  is  intended  for  sale  contrary  5 

to  law,  such  court  or  justice,  if  it  appears  that  there  is  probable  cause  6 

to  believe  said  complaint  to  be  true,  shall  issue  a  search  warrant  to  a  7 

sheriff,  deputy  sheriff,  city  marshal,  chief  of  police,  deputy  chief  of  8 


Chap.  138.]  intoxicating  liquors,  etc.  1401 

9  police,  deputy  marshal,  police  officer  or  constable,  commanding  him  to  R.  l.  loo,  §72. 

10  search  the  premises  in  which  it  is  alleged  that  such  liquor  is  deposited,  scray.'ssg.' 

11  and  to  seize  such  Hquor,  the  vessels  in  which  it  is  contained  and  all  im-  ida'AiL'si^^s. 

12  plements  of  sale  and  furniture  used  or  kept  and  provided  to  be  used  in  Jofitiassfle 

13  the  illegal  keeping  or  sale  of  such  liquor,  and  securely  keep  the  same  nsMafts'' 

14  until   final   action   thereon,  and   return  the  warrant  with   his   doings  iis  Mass.  142, 

15  thereon,  as  soon  as  may  be,  to  a  court  or  trial  justice  having  jurisdic-  iieaiass.  21, 

16  tion  in  the  place  in  which  such  liquor  is  alleged  to  be  kept  or  deposited.    117  Mass.  427. 

122  Mass.  8.  36.  135  Mass.  519.  145  Mass.  1.S2.  1(52  Mass.  21.5. 

130  Mass.  29.  140  Mass.  2S7.  150  Mass.  164.  203  Mass.  685. 

1  Section  62.     A  warrant  shall  not  be  issued  for  the  search  of  a  dwell-  ■^«=";^!'  °f 

....  .         ,  1  ji  dwelling  house. 

2  ing  house,  if  no  tavern,  store,  grocery,  eating  house  or  place  oi  common  is52,  322,  §  14. 

3  resort  is  kept  therein,  unless  one  of  the  complainants  makes  oath  that  he  g.  s.'  sg,  '§  43. ' 

4  has  reason  to  believe  and  does  believe  that  such  liquor  has  been  sold  isre]  162'  §  2.^' 

5  therein  or  taken  therefrom  for  the  purpose  of  being  sold  by  the  occupant,  r.  l.'ioo.V73. 

6  or  by  his  consent  or  permission,  contrary  to  law,  within  one  month  next  i'/\iien*52' 

7  before  making  such  complaint,  and  is  then  kept  therein  for  sale  con-  ^o.^M^I^-g^i^j 

8  trary  to  law  by  the  person  complained  against.    Such  complainant  shall  ssi.  595. 

9  state  the  facts  and  circumstances  on  which  such  belief  is  founded,  and  iioKiasslis2. 
10  such  allegations  shall  be  recited  in  the  complaint  and  warrant.  122  Kiass!  14'. 

142  Mass.  470. 

1  Section  63.     The  complaint  shall  particularly  designate  the  building.  Designation  of 

2  structure  and  place  to  be  searched,  the  liquor  to  be  seized,  the  person  by  search^. " 

3  whom  it  is  owned,  kept  or  possessed  and  intended  for  sale,  and  shall  allege  a's'su"'?  11"' 

4  the  intent  of  such  person  to  sell  the  same  contrary  to  law.    The  warrant  }|'i^'  *^S'  fs^' 

5  shall  allege  that  probable  cause  has  been  shown  for  the  issuing  thereof;  ]!■  ^  ^^^-  §32^ 

6  and  the  place  to  be  searched,  the  liquor  to  be  seized,  and  the  person  be-  97  Mass.  334 

7  lieved  to  be  the  owner,  possessor,  or  keeper  of  such  liquor,  intending  to  108  Mass.  290! 

8  sell  the  same  contrary  to  law,  shall  be  designated  therein  with  the  same  no  Mass!  II2. 

9  particularity  as  in  the  complaint  and  the  complainants  shall  be  sum-  tis  Mass.  13, 
10  moned  to  appear  as  witnesses.  ^°*'  ''^^■ 

116  Mass.  342.  146  Mass.  509.  163  Mass.  42. 

1  Section  64.    The  officer  to  whom  the  warrant  is  committed  shall  prem'ises'and 

2  search  the  premises  and  seize  the  liquor  described  in  the  warrant,  the  seizure  of 

3  casks  or  other  vessels  in  which  it  is  contained,  and  all  implements  of  sale  is52, 322,  §  u. 

4  and  furnitm-e  used  or  kept  and  provided  to  be  used  in  the  illegal  keeping  c^'S'.  s«.^§  45!^' 

5  or  sale  of  such  liquor,  if  they  are  found  in  or  upon  said  premises,  and  it?!',  ira.'l-t.''' 

6  shall  convey  the  same  to  some  place  of  security,  where  he  shall  keep  the  rss7,406,|l^' 

7  liquor  and  vessels  until  final  action  is  had  thereon. 

ISSS,  297.  R.  L.  100.  §  75.  188  Mass.  399. 

1  Section  65.     If,  in  the  opinion  of  the  court  or  trial  justice  before  Notice  to 

2  whom  the  warrant  is  returned,  the  value  of  the  liquor  seized  and  the  uquorssLed. 

3  vessels  containing  it  does  not  exceed  one  thousand  dollars,  a  notice,  Istl;!!!,!"!). 

4  under  seal,  and  signed  by  the  justice  or  the  clerk  of  said  court,  or  by  the  f869,4i'5!|*48 

5  trial  justice,  shall  be  issued  within  twenty-four  hours  after  such  seizure,  p*'|'/oo'||i 

6  commanding  the  person  complained  against  as  the  keeper  of  the  liquor  R^  l.  lod,  §  76. 

7  seized  and  all  other  persons  who  claim  any  interest  therein  or  in  the  casks  is'Aiienf'si-.L' 

8  or  vessels  containing  the  same  to  appear  before  said  court  or  trial  justice,  ^^  ^'"^^^  '^°^' 

9  at  a  time  and  place  therein  named,  to  answer  to  said  complaint  and 

10  show  cause  why  such  liquor  and  the  vessels  containing  it  should  not  be 

11  forfeited. 


1402 


INTOXICATING   LIQUORS,   ETC. 


[Chap.  138. 


Form  and 
ser\'ice  of 
notice. 

1S55,  215,  §  26. 
G.  S.  80,  §  47. 
1869,  415,  §  49. 
1873,  328. 
1876,  162,  §  6. 
P.  S.  100,  §  35. 
R.  L.  100,  §  77. 
6  Allen.  599. 
97  Mass.  334. 
135  Mass.  519. 
146  Mass.  509. 


Section  66.    The  notice  shall  contain  a  description  of  the  number  1 

and  kind  of  vessels,  the  quantity  and  kind  of  licjuor  seized,  as  nearly  as  2 

may  be,  and  shall  state  when  and  where  they  were  seized.    It  shall,  not  .3 

less  than  fourteen  days  before  the  time  appointed  for  the  trial,  be  served  4 

by  a  sheriff,  deputy  sheriff,  constable  or  police  officer  upon  the  person  5 

charged  with  being  the  keeper  thereof  by  leaving  an  attested  copy  6 

thereof  with  him  personally  or  at  his  usual  place  of  abode,  if  he  is  an  7 

inhabitant  of  the  commonwealth,  and  by  posting  an  attested  copy  on  8 

the  building  in  which  the  liquor  was  seized,  if  it  was  found  in  a  building;  9 

otherwise  in  a  public  place  in  the  city  or  town  in  Mdiich  the  liquor  was  10 

seized.  11 


Tftrfa™''™^"'  Section  67.  If,  at  the  time  appointed  for  trial,  said  notice  has  not 
G^i'Uh 48*''  been  duly  served,  or  other  sufficient  cause  appears,  the  trial  may  be  post- 
1869,415,  §50.  poned  to  some  other  day  and  place,  and  such  further  notice  issued  as 
p.  s.'ioc'  §  36.  shall  supply  any  defect  in  the  previous  notice;  and  time  and  opportunity 
R.  L.  100,  §  /8.  j,^^  ^^j^j  ^^^j  defence  shall  be  given  to  persons  interested. 


Claimant  of 
liquors  may  be 
admitted  as 
party. 
Judgment. 
1852,  322,  §  14. 
1855,  215,  §  27. 
G.  S.  86,  §  49. 

1869,  415,  §  51. 

1870,  162,  §  8. 
P.  S.  100,  §  37. 
R.  L.  100,  §  79. 
107  Mass.  396. 
113  Mass.  23. 
142  Mass.  470. 


Section  68.  At  the  time  and  place  designated  in  the  notice,  the  per- 
son complained  against,  or  any  person  claiming  an  interest  in  the  liquor 
and  vessel  seized,  or  any  part  thereof,  may  appear  and  make  his  claim 
verbally  or  in  writing,  and  a  record  of  his  appearance  and  claim  shall  be 
made,  and  he  shall  be  admitted  as  a  party  to  the  trial.  Whether  a  claim 
as  aforesaid  is  made  or  not,  the  court  or  trial  justice  shall  proceed  to 
try,  hear  and  determine  the  allegations  of  such  complaint,  and  ^^•hether 
said  liquor  and  vessels,  or  any  part  thereof,  are  forfeited.  If  it  appears  8 
that  the  liquor,  or  any  part  thereof,  was  at  the  time  of  making  the  com-  9 
plaint  owned  or  kept  by  the  person  alleged  therein  for  the  purpose  of  10 
being  sold  in  violation  of  law,  the  court  or  trial  justice  shall  render  11 
judgment  that  such  and  so  much  of  the  liquor  so  seized  as  was  so  unlaw-  12 
fully  kept,  and  the  vessels  in  which  it  is  contained,  shall  be  forfeited  to  13 
the  commonwealth.  14 


Disposition  of 
forfeited 
liquor. 

1852,  322,  §  14. 
1855,  215,  §  27. 
G.  S.  86,  §  50. 
1869,  415,  §  52. 
1872,  304. 
1876,  162,  §  9. 
1879,  305,  I  3. 
P.  S.  100,  §  38. 
1887,  53. 


Section  69.  Any  liquor  so  forfeited  shall,  by  the  authority  of  the 
written  order  of  the  court  or  trial  justice,  be  forwarded  by  common 
carrier  to  the  commissioner  of  public  safety,  who  upon  receipt  of  the 
same  shall  notify  said  court  or  justice  thereof.  The  officer  who  serves 
the  order  above  named  shall  be  allowed  therefor  fifty  cents,  but  shall 
not  be  entitled  to  receive  any  traveling  fees  or  mileage  on  account  of 
the  service  thereof.  R.  L-  loo,  §  so. 


kJrleiTedTo'be  Section  70.  If  it  IS  not  provcd  on  the  trial  that  all  or  part  of  the 
i85!5"li5  s  28  li^iuor  seized  was  kept  or  deposited  for  sale  contrary  to  law,  the  court 
G.  s.  86,  §  51     or  trial  justice  shall  issue  a  written  order  to  the  officer  having  the  same 

1869,  415,  §  53.   .  .,      1       J  J  1     J 1  p  J.  Ill 

1870, 162, 1 10.  in  custody  to  return  so  much  thereof  as  was  not  proved  to  be  so  kept  or 

r'.'l.  100,  §  8i.  deposited  and  the  vessels  in  which  it  is  containetl,  to  the  place  as  nearly 

103  Mass.  454.   ^^  ^^^^^  ^^  from  wlucli  it  was  taken,  or  to  deliver  it  to  the  person  entitled 

to  receive  it.    After  executing  such  order,  the  officer  shall  return  it  to  the 

court  or  trial  justice  with  his  doings  endorsed  thereon. 


hinift'urer  °'         Section  71.     All  implements  of  sale  and  furniture  seized  under  sec-     1 
1888  297  tions  sixty-oue  and  sixty-four  shall  be  forfeited  and  disposed  of  in  the    2 

R.  h.  100,  §  82.  manner  provided  for  the  forfeiture  and  disposition  of  intoxicating  liquors ;    3 


Chap.  138.]  intoxicating  liquors,  etc.  1403 

4  but  the  court  or  trial  justice  may,  if  it  is  deemed  to  be  for  the  interest 

5  of  the  commonwealth,  order  the  destruction  or  sale  of  said  property 

6  by  any  officer  qualified  to  serve  criminal  process  and  the  proceeds  of 

7  a  sale  thereof  shall  be  paid  over  to  the  county;    and  said  officer  shall 

8  make  return  of  the  order  for  such  destruction  or  sale  and  his  doings 

9  thereon  to  the  court  or  justice  issuing  the  same. 

1  Section  72.     If  no  person  appears  and  is  admitted  as  a  partv  as  costs. 

2  aforesaid,  or  if  judgment  is  rendered  in  favor  of  all  the  claimants  who  g.  s.'se.  §  52. ' 

3  appear,  the  cost  of  the  proceedings  shall  be  paid  as  in  other  criminal  {ly";  j,-?;  |  ft; 

4  cases.     If  only  one  party  appearing  fails  to  sustain  his  claim,  he  shall  r.l.'ioo.Vss. 

5  pay  all  the  costs  except  the  expense  of  seizing  and  keeping  the  liquor, 

6  and  an  execution  shall  be  issued  against  him  therefor.     If  judgment 

7  is  rendered  against  two  or  more  claimants  of  distinct  interests  in  the 

8  liquor,  the  costs  shall,  according  to  the  discretion  of  the  court  or  trial 

9  justice,  be  apportioned  among   such  parties,  and  executions  shall  be 

10  issued  against  them  severally.     If  such  execution  is  not  forth\^ith  paid, 

11  the  defendant  therein  named  shall  be  committed  to  jail,  and  shall  not 

12  be  discharged  therefrom  until  he  has  paid  the  same  and  the  costs  of 

13  commitment,  or  until  he  has  been  imprisoned  thirty  days. 

1  Section  73.     A  claimant  whose  claim  is  not  allowed  as  aforesaid,  fs'52;*322,  §  10. 

2  and  the  person  complained  against,  shall  each  have  the  same  right  of  1,^55.  |^5,  yg. 

3  appeal  to  the  superior  court  as  if  he  had  been  convicted  of  crime;   but  }|^^|]|'  ^  ss. 

4  before  his  appeal  is  allowed  he  shall  recognize  to  the  commonwealth  in  mr,',  wz,  §  12. 

5  the  simi  of  two  hundred  dollars,  with  sufficient  surety  or  sureties,  to  r.  l.  106,  §  si. 

6  prosecute  his  appeal  to  the  superior  court  and  to  abide  the  sentence  of 

7  the  coiu-t  thereon.    Upon  such  appeal,  any  question  of  fact  shall  be  tried 

8  by  a  jury.    On  the  judgment  of  the  court  after  verdict,  whether  a  for- 

9  feiture  of  the  whole  or  any  part  of  the  liquor  and  vessels  seized,  or 

10  otherwise,  similar  proceedings  shall  be  had  as  are  directed  in  the  five 

11  preceding  sections. 

1  Section  74.     If,  in  the  opinion  of  the  com-t  or  trial  justice  before  superior 

2  whom  a  warrant  under  which  liquor  has  been  seized  is  returnable,  the  JuJisdi^c'tira''^ 

3  value  of  the  liquor  seized  with  the  vessels  containing  it  exceeds  one  ^orJh'Sri^ 

4  thousand  dollars,  a  notice  shall  be  issued  and  served  as  du-ected  in  jh"°g°^^ 

5  sections  sixty-five  and  six-ty-six,  except  that  it  shall  be  made  return-  j'll'Flj^  ,3^ 

6  able  to  the  sitting  of  the  superior  comt  for  criminal  business  to  be  held  g.s.'si;,  §54./ 

7  in  the  county  next  after  the  expiration  of  fourteen  days  from  the  time  isye;  i(i2;  §  is. 

8  of  issuing  the  notice.    The  superior  court  shall  have  jurisdiction  of  the  r.l.'ioo.VIs. 

9  case,  and  may  proceed  therein  in  the  manner  directed  in  sections  sixty-  Is^liien^'sKL 

10  seven  to  seventy,  inclusive,  and  sevent>-two,  as  nearly  as  may  be,  and  }o^  ^J^|^  ^sb. 

11  with  the  jury,  upon  any  issue  of  facts  presented  by  the  claimant  or 

12  directed  by  the  court. 

1  Section  75.    A  mayor,   alderman,   selectman,  deputy  sheriff,  chief  iv^rlnfi*''""' 

2  of  police,  deputy  chief  of  police,  city  marshal,  deputy  or  assistant  mar-  Jl55'2i'^5''f  la 

3  shal,  police  officer  or  constable,  in  his  city  or  town,  may  without  a  war-  g.s.'sb,  §  55 

4  rant  arrest  any  person  whom  he  finds  in  the  act  of  illegally  selling,  isri;!  inbi  §  u! 

5  transporting,  distributing  or  delivering  intoxicating  liquor,  and  seize  the  ilrl]  305,  §  9. 

6  liquor,  vessels  and  implements  of  sale  in  the  possession  of  such  person,  R.L'io'o.Vs'i. 

7  and  detain  them  until  warrants  can  be  procured  against  such  person,  '^°'''  '--■ 


1404 


INTOXICATING   LIQUORS,   ETC. 


[Chap.  138. 


11  Gray,  36S. 
14  Gray.  200 
193  Mass.  2S0. 


and  for  the  seizure  of  said  liquor,  vessels  and  implements,  under  this  8 
chapter.  Such  officers  shall  enforce  or  cause  to  be  enforced  the  penalties  9 
provided  by  law  against  every  person  who  is  guilty  of  a  violation  of  10 
any  law  relative  to  the  sale  of  intoxicating  liquor  of  which  they  can  11 
obtain  reasonable  proof.  12 


Charter  of 
club  where 
liquor  is 
illegally  sold, 
etc.,  may  be 
declared  void. 
1S90,  439,  §  2, 

1893,  226,  §  2, 

1894,  542. 


Section  76.  If  any  person  is  con\-icted  of  exposing  and  keeping  for 
sale  or  selling  intoxicating  liquor  on  the  premises  occupied  by  any  club 
or  organization  described  in  section  two  of  chapter  one  hundred  and 
eighty  or  of  illegal  gaming  upon  said  premises,  or  of  being  present  where 
implements  of  gaming  are  found  upon  said  premises,  the  selectmen  of 
R.  L.  100.  §  89  ^YiQ  town,  or  the  aldermen  of  the  city,  in  which  such  club  or  organization  G 
is  situated,  except  Boston,  and  in  Boston,  the  licensing  board,  shall  7 
immediately  notify  the  state  secretary,  and  he  shall,  upon  receipt  of  8 
such  notice,  declare  the  charter  of  said  club  void,  and  shall  publish  a  9 
notice,  in  at  least  one  newspaper  published  in  the  county  in  which  said  10 
club  or  organization  is  situated,  that  such  incorporation  is  void  and  of  11 
no  further  effect.  12 


Section  77.    A  complaint  or  indictment  for  the  violation  of  any 


Disposition  of 
prosecution 

i855'"i5  §  35  pro\'ision  of  law  relative  to  intoxicating  liquors  shall  not,  unless  the 

C'-s  |B.Jos.    purposes  of  justice  require  such  disposition,  be  placed  on  file  or  dis- 

1869!  415',  §  60.  posed  of  except  by  trial  and  judgment  according  to  the  regular  course 

1885.' 359.'    ■     of  criminal  proceedings.     It  shall  be  otherwise  disposed  of  only  upon 

R.  L.  100.  §  55.  jjjq|-Jqjj  Jj,  writing  stating  specifically  the  reasons  therefor  and  verified 

by  affidavit  if  facts  are  relied  on.    If  the  court  or  magistrate  certifies  in 

writing  that  he  is  satisfied  that  the  cause  relied  on  exists  and  that  the 

interests  of  public  justice  require  the  allowance  thereof,  such  motion 

shall  be  allowed  and  said  certificate  shall  be  filed  in  the  case. 


1 

2 
3 
4 
5 

6 
7 
8 
9 
10 


authoritfesto  SECTION  78.  Upou  the  convictioii  of  a  holder  of  a  license  for  the 
conv'icS  °'  sale  of  intoxicating  liquors  of  the  violation  of  any  law  relative  to  the 
p^f'foo^ig  t'lisiness  he  is  licensed  to  pursue,  the  court  in  which  or  the  magistrate 
r.'l.  io6."§s6.  before  whom  he  has  been  convicted  shall  send  to  the  authorities  which 

issued  the  license  a  certificate  under  seal,  showing  the  time  and  place  of 

such  conviction. 


Owner  of 
building  to^be 
notified  of 
con\'iction. 
1876,  162.  §  16. 
P.  S.  100.  §  20. 
R.  L.  100.  §  57. 
1910.264. 


Section  79.  Upon  the  con\-iction  of  a  person  of  the  illegal  keeping 
or  sale  of  intoxicating  liquor,  the  court  or  magistrate  by  -whom  he  has 
been  con\'icted  shall  issue  and  cause  to  be  served  upon  the  owner  of  the 
building,  or  agent  of  such  owner  in  charge  of  the  building,  used  for  such 
illegal  keeping  or  sale,  if  he  resides  within  the  commonA\ealth  and  is  not 
the  person  so  convicted,  a  WTitten  notice  that  the  tenant  of  said  building 
has  been  con\acted  as  aforesaid;  and  a  return  thereof  shall  be  made  to 
the  court  or  magistrate  issuing  it.  Such  notice,  so  served,  shall  be 
deemed  to  be  due  and  sufficient  notice  under  section  twenty  of  chapter 
one  hundred  and  thirtv-nine. 


1 
2 

o 
O 

4 

5 
(3 
7 
8 
9 
10 


pr°o™™tTon.  Section  80.     The  forms  heretofore  in  use  may  continue  to  be  used     1 

G^i'W\ 63    ^"  prosecutions  under  this  chapter,  and  if  substantially  followed  shall  be    2 
1869. 4i'5.'  §  66.  deemed  sufficient  to  fully  and  plainly,  substantially  and  formally  describe    3 


Chap.  138.]  intoxicating  liquors,  etc.  1405 

4  the  several  offences  in  each  of  them  set  forth,  antl  to  authorize  the  lawful  p^'|;ioo"'|4'(;^' 

5  doings  of  the  officers  acting  bv  \artue  of  the  warrants  issued  in  sub-  5';-^;,i°°'  L",? 

,  n  .  .1  1  •  *  1      11  111  '^"^  Mass.  17&. 

6  stantial  conformity  therewith;  but  this  section  shall  not  exclude  the  use  uoMass.  i82. 

7  of  other  suitable  forms. 

1  Section  81.     All  intoxicating  Hquors  which  are  kept  for  sale  con-  Liquors 

2  trary  to  law  and  the  implements  and  vessels  actually  used  in  selling  and  L'tcf common 
.3  keeping  the  same  are  declared  to  be  common  nuisances.      isss,  215,  §  37.       "uisances. 

G.  S.  86.  §  60.  1876,  162,  §  15.  R.  L.  100,  §  87. 

1869,  415,  §  62.  P.  S.  100,  §  44.  12  Gray,  89. 

1  Section  82.     All  buildings  or  places  used  by  clubs  for  the  purpose  ciubs  used  tor 

2  of  selling,  distributing  or  dispensing  intoxicating  liquors  to  their  mem-  common"""'^ 

3  bers  or  others  shall  be  deemed  common  nuisances.     Whoever  keeps  or  'issT,'226.' 

4  maintains,  or  assists  in  keeping  or  maintaining,  such  a  common  nuisance,  ^^fy  2*06.^  *"' 
.5  shall  be  punished  by  a  fine  of  not  less  than  fift\'  nor  more  than  one  R- l-  loa,  §  88. 

6  hundred  dollars  and  by  imprisonment  for  not  less  than  three  nor  more  137  Mass.  564. 

7  than  tweh-e  months. 

152  Mass.  337.  167  Mass.  13.  219  Mass.  37. 

1  Section  83.     Whoever,  not  being  duly  licensed  as  provided  in  this  Penait.v  for 

2  chapter,  sells,  exposes  or  keeps  for  sale  certain  non-intoxicating  bever-  'etcrof  certain 

3  ages  as  defined  in  section  one  shall  be  punished  by  a  fine  of  not  less  .""ifile'eragel' 

4  than  fifty  nor  more  than  five  hundred  dollars  and  by  imprisonment  for  ^^~'^'  '^^o.  §  24. 

5  not  less  than  one  nor  more  than  six  months. 

1  Section  84.     Con\'iction  of  a  licensee  of  the  ^^olation  of  any  pro-  Comiction 

2  vision  of  a  license  of  the  first  two  classes  or  the  fourth  or  fifth  class  or  ^ioiati'mf  0° 

3  of  any  pro\ision  of  this  chapter  shall  render  such  license  \oid.  conditions  of 

4  Conviction  of  a  holder  of  a  third  class  license  of  a  \iolation  of  any  Jl^lnseTOiu'* 

5  pro\asion  of  sections  thirty  to  thirty-two,  inclusive,  shall  render  such  isjjs.  i^i^  §  is. 

6  license  void.  ^^T't'q'^'i  n 

7  Such  licensee  shall  be  disqualified  to  hold  a  license  for  one  year  after  p.  s.'iod.  s  is. 

8  his  conviction,  and  if  he  is  the  owner  of  the  licensed  premises,  no  license  1887!  392! 

9  shall  be  exercised  on  the  premises  described  in  the  forfeited  license  dur-  {ffg;  ^t;  347. 
10  ing  the  residue  of  the  term  thereof.  is96, 30s. 

1897.  207,  §  2:  R.  L.  100,  §  53.  126  Mass.  250. 

271,  §  S;  487,  §  1.  1920.  630,  §  24.  156  Mass.  233. 

1  Section  85.     The  provisions  of  section  fifty-two  shall  not  apply  to  Certain  pro- 

2  sales  by  the  holder  of  a  license  of  the  third  class  if  made  upon  the  writ-  appb'  to  sales 

3  ten  prescription  of  a  practicing  physician.  i875, 99,  §  2.  San^pr^ 

p.  S.  100.  §2.  1887,431,5  1.  1896,397,5  10.  scription. 

1885,  282,  §  1.  1889,  390,  §  2.  R.  L.  100,  §§  25,  62,  63. 

1  Section  86.     A  violation  by  any  person  of  any  pro\'ision  of  this  General 

2  chapter  for  which  a  specific  penalty  is  not  imposed  or  a  \iolation  by  a  1832,  lee, 

3  licensee  of  any  provision  of  his  license  shall  be  punished  by  a  fine  of  r.M;  47,  §  27. 

4  not  less  than  fifty  nor  more  than  fi\-e  hundred  dollars  and  by  imprison-  jfTs.'iV^.' 

5  ment  for  not  less  than  one  nor  more  than  six  months. 

G.  S.  86,  §§  30,  31.  1880,  239,  I  6.  1896,  308. 

1868,  141,  S  18.  P.  S.  100.  §  18.  1897,  207,  §2; 

1869,  415,  §  32.  1882,  242,  §  2.  271,  §  5:  487,  §  1. 
1875,  99,  §  13.  1888,  254.  R.  L.  100,  §  53. 
1878,  207,  §  2.  1889,  114;  347.  1920,  630,  §  24. 


1406 


COMMON  NUISANCES. 


[Chap.  1.39. 


i^ti^on'of 'certeta  SECTION  87.  Except  as  provided  in  the  following  section,  violation 
iss''°22i  5  4-  ^^  ''^"y  provisions  of  section  twentj'-eight,  thirty,  thirty-one,  thirty- 
isqr^qy  i6  ^^  °'  forty-one  or  fifty-seven  shall  be  punished  by  a  fine  of  not  less  than 
1897!  398',  t)  6. '  fifty  nor  more  than  five  hundred  dollars  or  by  imprisonment  for  not 
R.  L.  100,  §  .54.  less  than  one  nor  more  than  six  months,  or  both.  A  licensee  of  the 
1913;  413,'  i  3.    fifth  class  who  violates  section  thirty-two  shall  be  punished  as  above 


provided. 


Section  88.     Any  person  who  makes  or  issues  a  false  or  fraudulent     1 


Penalty  for 
false  cer- 

prescrfpt?ons.     Certificate  or  prescription  referred  to  in  sections  thirty  and  thirty-one     2 
1887,431,  §5.    shall  be  punished  by  a  fine  of  ten  dollars.      i896.397.§  i6.      r.  l.  loo,  5  2s.  3 


Penalty  for 
violation  of 
section  42, 
1917,  150,  §  3. 


Section  89.     Violations  of  section  forty-two  shall  be  punished  bj-  a     1 
fine  of  not  less  than  fifty  nor  more  than  two  hundred  dollars.  2 


REFERENCES. 

Revocation  of  club  charter  for  illegal  keeping  of  liquor,  Chap.  ISO,  §  27. 

Provisions  as  to  druggists'  licenses  do  not  apply  to  physicians,  wholesale  dealers, 
etc.,  Chap.  112,  §3.5. 

Screened  booths  in  caffe  forbidden.  Chap.  272,  §  25. 

Refilling  registered  bottles,  Chap.  110,  §  18. 

Registration  of  pharmacists.  Chap.  112,  §§  24-36. 

Employment  of  minors  in  establishments  where  liquor  is  handled  or  sold,  Chap. 
149,  §§  62,  64. 

§§  25-27,  2&-33,  88.  Not  to  apply  to  physicians  who  put  up  their  own  prescrip- 
tions, etc.,  Chap.  112,  §  35. 

§  27.     Cancellation  of  certificate.  Chap.  112,  §§  61-65. 


CHAPTER     139, 

COMMON  NUISANCES. 


Sect. 

burnt  or  dangerous  buildings. 

1.  Burnt  or  dangerous  buildings,  how  dis- 

posed of. 

2.  Owner  aggrieved  may  appeal  to  supe- 

rior court. 

3.  Nuisances  may  be  abated,  etc. 

PL.\CES    OF    PROSTITUTION,   ETC. 

4.  Buildings,   etc.,   used   for  prostitution, 

etc.,  to  be  deemed  a  nuisance. 

5.  Penally. 

6.  Abatement  of  nuisance. 

7.  Filing,  etc.,  of  bill  of  complaint. 

8.  Temporary  injunction  may  be  ordered, 

etc. 

9.  Decree  of  court  ordeiing  abatement  of 

nuisance,  etc. 

10.  Fee  of  officer  for  removing  and  selling 

property.      Application    of   proceeds 
of  sale. 

11.  Order  of  abatement  may  be  modified 

in  certain  cases,  etc. 


Sect 

12.  Bill  of  complaint  not  to  be  dismissed, 

except,  etc. 

13.  Persons  found  in  places  used  for  pros- 

titution, etc.,  may  be  summoned  as 
witnesses. 

PLACES  RESORTED  TO  FOR  ILLEGAL  GAMING 
OK  USED  FOR  THE  ILLEGAL  KEEPING  OR 
SALE    OF   INTOXICATING    LIQUOR. 

14.  Buildings  resorted  to  for  illegal  gaming. 

etc.,  to  be  common  nuisances. 

15.  Penalty. 

16.  Abatement  of  common  nuisance. 

17.  Evidences  of  sales. 

18.  Removal  of  gambling  booths,  etc.,  near 

public  shows. 

GENERAL   PROVISIONS. 

19.  Keeping  a  nuisance  by  tenant  to  make 

lease  void,  etc. 

20.  Aiding  in  the  maintenance  of  a  nuisance. 


Chap.  139.]  common  nuisances.  1407 


BURNT   OR   DANGEROUS   BUILDINGS. 

1  Section  1.     In  a  city  or  town  in  which  the  city  council  or  the  in-  Burnt  or  dan- 

2  habitants  of  the  town  accept  this  and  the  two  following  sections  or  fngs,"howdis- 
,3  have  accepted  corresponding  provisions  of  earlier  laws,  the  aldermen  isss'l'^eo, 

4  or  selectmen,  after  \\-ritten  notice  to  the  owner  of  a  burnt,  dilapidated  or  ^^  g'  |v,  5 1 

5  dangerous  building,  or  his  authorized  agent,  and  after  a  hearing,  may  Rf;\°j/l\- 

6  make  and  record  an  order  adjudging  it  to  be  a  nuisance  to  the  neighbor-  isis.  33:i',  s  7. 

7  hood,  or  dangerous,  and  prescribing  its  disposition,  alteration  or  regu- 

8  lation.    The  city  or  town  clerk  shall  deliver  a  copy  of  the  order  to  an 

9  officer  qualified   to  serve   civil   process,  who   shall   forthwith   serve  an 

10  attested  copy  thereof  in  the  manner  prescribed  in  section  one  hundred 

11  and  twenty-four  of  chapter  one  hundred  and  eleven,  and  make  return 

12  to  said  clerk  of  his  doings  thereon. 

1  Section  2.     A  person  aggrie\'ed  by  such  order  may  appeal  to  the  owner  ag- 

2  superior  court  for  the  county  where  such  building  is  situated,  if,  within  appeai't™''^ 

3  three  days  after  the  service  of  such  attested  copy  upon  him,  he  pre-  is'g^'^o, 

4  sents  to  such  court  a  petition  stating  liis  grievance  and  the  order  of  ^  |"|- 

5  the  board.    After  such  notice  to  the  board  as  the  court  shall  order,  trial  i**'^*'2ci.' 

6  by  jury  shall  be  had  as  in  other  civil  causes.     The  jury  may  affirm,  s§2-4. 

7  annul  or  alter  such  order,  and  the  court  shall  render  judgment  in  con-  §§2-4. 

8  formity  with  said  verdict,  which  shall  take  effect  as  an  original  order.   If  {920,'  sJ*^'  ^  ^' 

9  the  order  is  affirmed,  the  petitioner  shall  pay  the  costs;   if  it  is  annulled, 

10  he  shall  recover  from  the  town  his  damages,  if  any,  and  costs;  and  if  it 

11  is  altered,  the  court  may  render  such  judgment  as  to  costs  as  justice  shall 

12  require. 


court. 
409. 


1  Section  3.     The  aldermen  or  selectmen  shall  have  the  same  power  to  Nuisances  may 

2  abate  and  remove  any  such  nuisance  as  is  given  to  the  board  of  health  i855''4e9,'§'2°.' 

3  of  a  town  under  sections  one  hiuidred  and  twenty-three  to  one  hundred  p.f.foi.Vs. 

4  and  twenty-five,  inclusive,  of  chapter  one  hundred  and  eleven.  ^'  ^-  *oi'  §  ^■ 

PLACES   of   prostitution,    ETC. 

1  Section  4.     Every  building,  part  of  a  building,  tenement  or  place  Buildings,  etc., 

2  used  for  prostitution,  assignation  or  lewdness,  and  every  place  within  tuutio^n,  ?t°!' 

3  or  upon  which  acts  of  prostitution,  assignation  or  lewdness  are  held  or  i°nutsance!'"' 

4  occur,  shall  be  deemed  a  nuisance. 

1855,  405,  §  1.  0  Gray,  2!)0.  Ifi  Gray,  18.  145  Mass.  251. 

G.  S.  87,  §  6.  10  Gray,  405.  12  Allen,  177.  213  Mass.  238. 

P.  .S.  101,  §6.  11  Gray,  48,  114  Mass.  281.  232  Mass.  88. 

R.  L.  101.  §  6.  12  CJrav,  326.  118  Mass.  456. 

1914,  624,  §  1.  13  Gray,  26.  132  Mass.  1.  See  cases  cited 

7  Gray,  328.  14  Gray,  406.  134  Mass.  201.  under  §§  14,  15. 

1  Section  5.     Whoe^■er  keeps  or  maintains  such  a  nuisance  shall   be  Penalty. 

2  punished  by  a  fine  of  not  less  than  one  hundred  nor  more  than  one  thou-  a's.'s?,''!  V"' 

3  sand  dollars  and  by  imprisonment  for  not  less  than  three  months  nor  Hoeiisoils: 

4  more  than  three  years.  P-  s.  loi,  §  7. 

R.  L.  101,  §  7.  1914,  624,  §  2.  See  cases  cited  under  §§  4,  14,  15. 

1  Section  6.     ^Yhene\■er  there  is  reason  to  belie^•e  that  such  a  nuisance  Abatement  of 

2  is  kept  or  maintained  or  exists  in  any  town,  either  the  district  attorney  iSt^'sso. 

3  for  the  district,  or  the  attorney  general,  in  the  name  of  the  common-  r.'l;  loi',  I s°' 

4  wealth,  or  a  citizen  in  his  own  name,  may  maintain  a  bill  in  equity  per-  ug^M^it  |.5a 

5  petually  to  enjoin  the  person  conducting  or  maintaining  the  same,  and  201  m.-iss.  204 


1408 


COMMON   NUISANCES. 


[Chap.  139. 


Filing,  etc..  of 
bill  of  com- 
plaint. 
1914.  624,  §  4. 


the  owner,  lessee  or  agent  of  tlie  building  or  place  in  or  upon  which  such  6 

nuisance  ex'sts  and  their  assignees  from  directly  or  indirectly  maintain-  7 

ing  or  permitting  such  nuisance.  8 

Section  7.     The  bill  of  complaint  shall  join  the  owner  of  record  of  1 

the  premises  as  a  party  respondent  and  shall  be  filed  in  the  superior  2 

court  for  the  county  where  the  nuisance  is  believed  to  exist,  and  shall  be  3 

verified  by  oath  of  the  complainant  unless  filed  by  the  attorney  general  or  4 

a  district  attorney.     The  bill  shall  forthwith  after  filing  be  presented  to  5 

the  court  sitting  in  equity  within  the  county,  or  to  any  justice  thereof  6 

if  the  court  is  not  so  sitting,  and  the  proceeding  shall  have  precedence  7 

over  all  other  matters  upon  the  docket  except  criminal  proceedings,  elec-  8 

tion  contests  and  hearings  upon  petitions  for  other  injunctions.  9 


Temporary  in-       SECTION  8.     If  upou  a  hearing,  after  at  least  two  days'  notice  to  the  1 

be  ordered,  etc.  respondents  of  the  time  and  place  assigned  therefor,  the  existence  of  2 

1914, 624,  §  5.    ^^^^j^  ^  nuisance  is  shown  to  the  satisfaction  of  the  court  or  justice,  either  3 

through  verified  complaint  or  through  e\'idencc  in  the  form  of  affidavits,  4 

depositions,  oral  testimony  or  otherwise,  a  temporary  injunction  shall  5 

be  ordered  to  issue  forthwith  restraining  the  maintenance  of  the  nuisance  6 

and  enjoining  the  occupants,  owner  and  all  other  persons  from  remov-  7 

ing  fixtures,  furniture,  musical  instruments  and  all  other  movable  prop-  8 

erty  from  the  premises  until  further  order  of  the  court.  9 


Decree  of  court 
ordering  abate- 
ment of 
nuisance,  etc. 
1914.  624,  §  fi. 
232  Mass.  SS. 


Section  9.  If  upon  subsequent  hearing  the  existence  of  the  nui-  1 
sance  shall  be  established,  the  court  shall  enter  a  decree  permanently  2 
enjoining  the  maintenance  thereof,  including  in  such  decree  an  order  of  3 
abatement  directing  the  sheriff  of  the  county  or  his  deputy  to  enter  the  4 
building  or  place  where  the  nuisance  existed  and  to  sell  all  furniture,  5 
musical  instruments  and  movable  property  used  in  maintaining  the  6 
nuisance,  in  the  manner  provided  for  the  sale  of  chattels  under  execu-  7 
tion,  and  to  remove  the  same.  If  it  shall  appear  that  the  bill  of  com-  8 
plaint  was  filed  five  or  more  days  after  notice  to  the  record  owner  of  the  9 
premises,  and  that  he  did  not  proceed  forthwith  to  enforce  his  rights  10 
under  section  nineteen,  such  order  of  abatement  shall  further  direct  the  11 
effectual  closing  of  the  building  or  the  place  and  the  prohibition  of  12 
its  use  for  any  purpose  for  one  year,  unless  sooner  released  as  provided  13 
in  section  eleven.  For  the  purpose  of  proving  the  existence  of  the  nui-  14 
sance  the  general  reputation  of  the  place  shall  be  admissible  as  evidence.     15 


Fee  of  officer 
for  removing 
and  selling 
property. 
Application  of 
proceeds  of  sale. 
1914,  624,  §  7. 


Section  10     For   removing   and    selling    the   mo\-able   property   in  1 

accordance  with  the  decree  of  the  court  the  officer  shall  be  entitled  to  2 

the  same  fees  as  for  levying  upon  and  selling  like  property  on  execution,  3 

and  for  closing  the  premises  and  keeping  them  closed,  a  reasonable  sum  4 

shall  be  allowed  by  the  court.    The  proceeds  shall  be  applied:   first,  to  5 

the  fees  and  costs  of  removal  and  sale;    second,  to  the  allowances  and  6 

costs  of  so  closing  and  keeping  closed  the  premises;    third,  to  the  pay-  7 

ment  of  the  complainants'  costs  in  such  proceeding,  including  a  reason-  8 

able  attorney's  fee  to  be  fixed  by  the  court;  fourth,  the  remainder,  if  any,  9 

to  the  owner  of  the  property  .sold.  10 

Order  of  abate-       Section  11.     If  thc  owucr  of  auy  sucli  prcmiscs  shall  pay  all  costs  of  1 

modified  in  cer-   tlic  procecdings,  and  file  with  the  court  a  bond  with  sureties  approved  2 

i9i4.''o24!'5''a'  by  the  clerk  in  the  full  value  of  such  premises  as  ascertained  by  thc  3 


Chap.  139.] 


COMMON   NUIS.\NCES. 


1409 


4  court,  or  in  \acation  by  the  clerk,  payable  to  the  court  and  conditioned 

5  that  the  owner  of  the  premises  found  to  be  a  nuisance  will  immediately 

6  abate  such  nuisance  and  prevent  the  same  from  being  established  or 

7  kept  therein  within  one  year  thereafter,  the  court  or  justice  may,  if 

8  satisfied  of  the  owner's  good  faith,  order  the  premises  so  closed  to  be 

9  delivered  to  such  owner  and  the  order  of  abatement  to  be  so  modified 

10  as  to  dissolve  the  order  that  the  premises  remain  closed  for  one  year; 

11  provided,  that  such  modification  shall  not  release  such  premises  from 

12  any  judgment,  lien,  penalty  or  liability  to  which  it  may  be  subject. 

1  Section  12.     No  bill  filed  under  section  six  shall  be  dismissed,  except  Bin  of  com- 

2  upon  a  sworn  statement  made  and  filed  by  the  complainant  and  by  his  dismissed, 

3  attorney  setting  forth  the  reasons  for  dismissal  thereof  and  upon  ap-  i9i4^c2T§  9. 

4  proval  of  such  dismissal  by  the  court  in  open  court.    If  the  court  is  of 

5  opinion  that  the  bill  ought  not  to  be  dismissed  he  may  direct  the  dis- 

6  trict  attorney  to  prosecute  the  case  to  a  final  decree.    If  a  bill  brought 

7  by  a  citizen  is  continued  more  than  one  term  of  court,  any  citizen  of  the 

8  comity,  or  the  district  attorney,  or,  if  public  interest  so  requires,  the 

9  attorney  general,  may  be  substituted  for  the  original  complainant  and 

10  prosecute  the  case  to  a  final  decree.    If  the  bill  was  brought  by  a  citizen 

11  and  the  court  finds  that  there  was  no  reasonable  ground  therefor,  costs 

12  may  be  awarded  against  the  complainant. 


1  Section  13.     All  persons  found  in  or  upon  premises  used  for  prostitu-  Persons  found 

2  tion,  assignation  or  lewdness  may  be  required  by  a  justice  of  a  court  of  fo/proltiu!- 

3  record  to  recognize,  with  or  ^\■ithout  sureties,  to  ajjpear  as  witnesses  at  besummoned' 

4  any  hearing  in  an  action  to  punish  a  person  for  keeping  or  maintaining 

5  such  a  nuisance  as  is  described  in  section  four,  or  for  aiding  in  the  main- 

6  tenance  of  such  a  nuisance  in  the  manner  set  forth  in  section  twenty, 

7  or  to  enjoin  or  abate  such  a  nuisance,  and  a  w'arrant  may  be  issued  to 

8  bring  such  persons  before  the  justice  to  recognize  as  aforesaid. 


as  witnesses. 
1S14,  C24,  §  1.5. 


PL.\CES  RESORTED  TO  FOR  ILLEGAL  GAMING  OR  USED  FOR  THE  ILLEGAL 
KEEPING  OR  SALE  OF  INTOXICATING  LIQUOR. 

1  Section  14.    Every  building,  place  or  tenement  which  is  resorted  to  Buiidinp 

2  for  illegal  gaming,  or  which  is  used  for  the  illegal  keeping  or  sale  of  in-  iiicgai  gaming, 

3  toxicating  liquor,  shall  be  deemed  a  common  nuisance.  mon  nuislnce™.' 


1855,  405,  §  1. 
G.  .S.  87,  §  6. 
P.  S.  101,  §6. 
R.  L.  101,  §  6. 
1914,  024,  §  11. 

Tenements. 

10  Gray,  4(i4,  465. 

11  Gray,  4.54,  456. 
1-1  Gray,  406. 
107  Mass.  212. 
112  Mass.  277. 

144  Mass.  297. 

145  Mass.  104. 
148  Mass.  8. 
150  Mass.  71. 

153  Mass.  5,  483. 

154  .Mass.  388. 
166  Mass.  377. 
205  Mass.  124. 

Illegal  gaming. 
7  Gray,  328. 

13  Gray,  26. 

14  Gray,  26,  390,  406. 
16  Gray,  18. 

7  Allen,  304. 
145  Mass.  251. 


Used  for  the 
illegal  keeping 
or  sale. 
7  Gray,  328. 

9  Gray,   296,  298. 

10  Gray,  9. 

11  Gray,  454. 

12  Gray,  89,  175, 
177,  178. 

13  Gray,  26. 

14  Gray,  23,  386,  390. 
16  Gray.  18.  19. 

1  Allen,  1,  592. 

2  Allen,  169. 
4  Allen,  589. 
97  Mass.  122. 

102  Mass.  144,  148. 

108  Mass.  24,26, 
27,480,  482. 

109  Mass.  361. 

110  Mass.  359,502. 

111  Mass.  425,426. 

113  Mass.  191. 

114  Mass.  252,  255,257, 
259    261 

lls'Mass.  102.141. 

116  Mass.  32,35,  46,  61. 

117  Mass.  140. 


123  Mass.  401. 

124  Mass.  26. 

126  Mass.  56,  256. 

127  Mass.  452. 
132  Mass.  267. 
136  Mass.  148,  436. 
138  Mass.  496,  498i 
508,  511. 

141  Mass.  28, 110. 

142  Mass.  474. 

143  Mass.  468. 

144  Mass.  171. 

145  Mass.  117, 
250.  251. 

147  Mass.  161. 

148  Mass.  425. 
150  Mass.  506. 
153  Mass.  211. 
167  Mass.  374. 

Resorted  to. 
7  Allen,  304. 
12  Allen,  177. 

See  cases  cited 
under  §§  4, 15. 


1410 


COMMON  NUISANCES. 


[Chap.  139. 


Penalty. 
1855,  405,  §  2. 
G.  S.  87,  §  7. 

1865,  269,  §  1. 

1866,  280,  §  3. 
P.  S.  101,  §  7. 
R.  L.  101,  §  7. 


Section  15.  Whoever  keeps  or  maintains  such  common  nuisance 
shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  one  hun- 
dred dollars  and  by  imprisonment  for  not  less  than  three  months  nor 
more  than  one  year.  los  Mass.  465. 


107  Mass.  212. 
138  Mass.  498. 


145  Mass.  406. 
150  Mass.  506. 


154  Mass.  lis. 
160  Mass.  298. 


See  cases  cited 
under  §§  4, 14. 


TOmmOT°'°^        Section  16.    Upon  an  information  filed  by  the  district  attorney  for 

?s87"3so  ^^^  district,  or  upon  the  petition  of  the  board  or  officer  having  control 

1S95. 419, 1 10.  of  the  police  of  a  town  or  of  not  less  than  ten  legal  voters  of  a  town, 

1914;  C24!  §  12.  stating  that  a  building,  place  or  tenement  therein  is  resorted  to  for 

illegal  gaming,  or  is  used  for  the  illegal  keeping  or  sale  of  intoxicating 

liquors,  the  supreme  judicial  or  superior  court  may  enjoin  or  abate  the 

same  as  a  common  nuisance. 


S^afes"^"^  Section  17.     Section  sixty  of  chapter  one  hundred  and  thirty-eight  1 

E  *l'  loi'  I  i'    ^'^^^^  ^PP'y  to  all  cases  relative  to  the  use  of  any  building,  place  or  tene-  2 

ment  for  the  illegal  keeping  or  sale  of  intoxicating  liquors  in  violation  of  3 

this  chapter.  4 


Removal  of 
gambling 
booths,  etc, 
near  public 
shows. 
1850,  291. 
1851,91. 
G.S.  87,  §  10. 
P.  S.  101,  §  10. 
R.  L.  101,  §  12. 


Section  IS.     The  aldermen  or  the  selectmen,  upon  complaint  made  1 

to  them  under  oath  that  the  complainant  has  reason  to  believe  and  does  2 

belie\'e  that  a  booth,  shed  or  other  temporary  erection,  situated  within  3 

one  mile  of  a  muster  field,  cattle  show  ground,  or  other  place  of  public  4 

gathering,  is  used  and  occupied  for  the  sale  of  spirituous  or  fermented  5 

liquor,  or  for  the  purpose  of  gaming,  may  order  the  owner  or  occupant  6 

thereof  to  vacate  and  close  the  same  forthwith.    If  the  owner  or  occu-  7 

pant  fails  so  to  do,  the  aldermen  or  selectmen  may  forthwith  abate  such  8 

booth,  shed  or  erection  as  a  nuisance,  and  may  pull  down  or  otherwise  de-  9 

stroy  the  same  through  the  agency  of  any  force,  civil  or  military.  10 


Keeping  a 
nuisance  by 
tenant  to 
make  lea.se 
void,  etc. 
R.  S.  130.  §  9. 
1855,  405,  §  3. 
G.  S.  87,  §  8; 
165.  §  14. 
P.  S.  101,  §  8; 
207,  §  14. 
R.  L.  101, 
1914,  624. 
15  Gray,  312, 

6  .Mien,  364. 

7  .Mien,  109. 
14  Allen,  289. 
103  Mass.  381 


§  10. 
5  13. 


GENERAL   PROVISIONS. 

Section  19.     If  a  tenant  or  occupant  of  a  building  or  tenement,  1 

under  a  lawful  title,  uses  such  premises  or  any  part  thereof  for  the  pur-  2 

poses  of  prostitution,  assignation,  lewdness,  illegal  gaming,  or  the  illegal  3 

keeping  or  sale  of  intoxicating  liquors,  such  use  shall  at  the  election  of  4 

the  lessor  or  owner  annul  and  make  ^'oid  the  lease  or  other  title  under  5 

which  such  tenant  or  occupant  holds  and,  without  any  act  of  the  lessor  6 

or  owner,  shall  cause  the  right  of  possession  to  revert  and  vest  in  him,  7 

and  he  may,  without  process  of  law,  make  immediate  entry  upon  the  8 

premises,  or  may  avail  himself  of  the  remedy  provided  in  chapter  two  9 

hundred  and  thirty-nine.                                loe  Mass.  537.  10 


Aiding  in  the 
maintenance  of 
a  nuisance. 
1855,  405,  §  4. 
G.  S.  87,  §  9. 
1866,  280,  §  3. 
P.  S.  101,  §  9. 
R.  L.  101,  ?  11. 
1914,  624,  §  14. 
106  Mass.  537. 
112  Mass.  277. 
135  Mass.  652. 
131)  Mass.  148. 
138  Mass.  181. 
146  Mass.  36. 
228  Mass.  266. 


Section  20.     Whoever  knowingly  lets  premises  owned  by  him,  or  1 

under  his  control,  for  the  purposes  of  prostitution,  assignation,  lewdness,  2 

illegal  gaming,  or  the  illegal  keeping  or  sale  of  intoxicating  liquors,  or  3 

knowingly  permits  such  premises,  while  under  his  control,  to  be  used  4 

for  such  purposes,  or  after  due  notice  of  any  such  use  omits  to  take  all  5 

reasonable  measures  to  eject  therefrom  the  persons  occupying  the  same  6 

as  soon  as  it  can  lawfully  be  done,  shall  be  punished  by  a  fine  of  not  less  7 

than  fifty  nor  more  than  one  hundred  dollars  and  by  imprisonment  for  8 

not  less  than  three  months  nor  more  than  one  year.       232  Mass.  88.  9 


Chap.  140.] 


LICENSES. 


1411 


REFERENCES. 

Building  or  structure  erected  in  violation  of  Chap.  143,  §  4,  made  a  common  nui- 
sance, and  its  abatement  or  removal  provided  for,  Chap.  14.3.  §  5. 

Buildings,  etc.,  resorted  to  by  habitual  users  of  narcotic  drugs  for  the  purpose  of 
using  such  drugs  or  for  the  illegal  keeping  or  sale  of  the  same  declared  a  common 
nuisance.  Chap.  94,  §  210. 

Order  for  the  securing  or  removal  of  dangerous  buildings  in  cities  or  to^Tis  accepting 
§§  6-12  of  Chap.  143,  appeal  to  superior  court  from  such  order,  restraintof  such  illegal 
construction  by  injunction  in  supreme  judicial  or  the  superior  court,  and  such  court's 
jurisdiction  to  order  the  removal  or  abatement  of  such  construction  as  a  nuisance, 
Chap.  143,  §§  6-12. 

Articles  and  things  placed  upon  a  fire  escape  or  outside  means  of  egress  of  any 
building  declared  a  common  nuisance,  and  seizure  and  disposal  thereof,  Chap.  143, 
§22. 

Certain  proceedings  in  the  auction  of  horses  in  Boston  declared  a  common  nuisance, 
and  the  abatement  thereof  provided  for,  1904,  336,  as  amended  by  1905,  426. 

Emission  of  smoke  in  certain  manner  in  certain  cities  and  towns  declared  a  nuisance, 
and  its  abatement  provided  for,  Chap.  140,  §§  132-136. 

Abatement  of  smoke  in  Boston,  Cambridge,  Somerville,  Everett,  Chelsea  and 
Brookline,  1910,  6.51;    1911,  10;    191.5,  50. 

Suppression  of  gypsy  and  brown  tail  moths  as  public  nuisances,  Chap.  132,  §§  11-24. 

Suppression  of  tent  caterpillar,  leopard  moth  and  elm  beetle.  Chap.  132,  §§  25,  26. 

Public  nuisances  of  insect  pest  or  plant  disease  and  abatement  by  director  of  the 
division  of  plant  pest  control,  Chap.  128,  §  24,  et  seq. 

Unauthorized  erections  or  work  done  in  the  Connecticut  river  declared  pubUc 
nuisances,  and  the  abatement  thereof  provided  for.  Chap.  91.  §  12. 

Unauthorized  erections  or  work  done  in  non-tidal  part  of  Merrimack  river  declared 
public  nuisances,  and  the  abatement  thereof  provided  for.  Chap.  91,  §  12. 


CHAPTER    140 

LICENSES. 


Sect. 

1.  Definition. 

IN>fHOLDERS     AND     COMMON     VICTUALLERS. 


9. 
10. 


11. 

12. 


13. 
14. 


15. 
16. 


17. 

18. 


Licen9e. 

Form  of  innholders'  licenses. 

Contents  of  license  of  an  iunholder  or 
common  victualler.     Term. 

Innholders,  etc.,  to  have  suitable  ac- 
commodations for  travelers. 

Refusal  of  license. 

Penalty  for  refusing  to  receive  trav- 
eler. 

Penalty  for  refusing  food  to  traveler. 

Revocation  of  license. 

Liability  of  innholder  for  loss  of  prop- 
erty. 

Liability  for  loss  by  fire. 

Penalty  for  fraudulently  procuring  en- 
tertainment at  an  inn  or  boarding 
house. 

Copy  of  certain  sections  to  be  posted. 

Disposition  of  baggage  in  possession  of 
innholders. 

Disposition  of  proceeds  of  sale- 
Balance  of  proceeds  of  sale  to  be  paid 
to  owner. 

Negligence  of  guest  a  defence. 

Signs. 


Sect. 

19.  Summary    of    laws    to    be    furnished 

licensees. 

20.  Penalty  on  unlicensed  innholder,  etc. 

21.  Penalty  on  tliird  conviction. 


LODGING    HOUSES. 

Definition. 

Licenses. 

Penalty. 

Inspection. 
26.  Penalty  for  permitting  immoral  con- 
duct. 

Register. 

Order  to  keep  a  register. 

Penalty  for  false  entry  in  register,  etc. 

Revocation,  etc.,  of  licenses. 

Posting  of  laws. 

Record  of  conviction  to  be  sent  to 
licensing  authorities. 


22, 
23 
24 

25, 


27. 
28. 
29. 
30. 
31. 
32. 


public  lodging  houses. 

33.  Definition. 

34.  Licenses. 

35.  Inspection  of  means  of  escape  from  fire. 

36.  Inspection  by  board  of  health. 

37.  Register. 

38.  Access  for  purposes  of  inspection. 


1412 


LICENSES. 


[ClL\P.   140. 


Sect. 

39.  Penalty    for    keeping    public    lodging 

house  without  a  license. 

40.  Penalty. 

INTELLIGENCE    OFFICES. 

41.  Penalty  for  keeping  unlicensed  intelli- 

gence office. 

42.  Licenses  for  intelligence  offices. 

43.  Keeper  not  to  receive   money  unless 

employment  is  furnished. 

44.  Money  to  be  refunded  in  certain  cases. 

45.  Statutes  to  be  printed  on  licenses. 

46.  Penalty. 

MISCELLANEOUS   PROVISIONS. 

47.  License  for  coffee  houses. 

48.  Penalty  for  receiving  gratuity  given 

to  cmploj-ee. 

49.  Licenses  for  lunch  carts. 

50.  Same  subject. 

51.  Manicuring,  massage  or  vapor  baths. 

52.  Officers  may  enter  premises. 

53.  Penalty. 

54.  Licenses  of  junk  dealers,  etc. 

55.  Penalty. 

56.  Junk  collector. 

S.\LE    OF    SECOND    HAND    MOTOE     VEHICLES. 

57.  License    required    e.xcept    in    certain 

cases. 

58.  Classes  of  licenses. 

59.  Licensing    authorities.      Contents    of 

license,  etc. 

60.  Rules   relative   to   purchase,   etc.,    of 

second  hand  motor  vehicles. 

61.  Vehicles  or  parts  to  be  kept  for  four 

days. 

62.  Licensee  to  keep  a  record  book. 

63.  Daily  or  weekly  reports  by  licensees. 

64.  Police  authorities  may  waive  the  four 

days'  requirement. 

65.  Notice  of  proposed  sale  required  liy 

an  unlicensed  person. 

66.  Police  authorities  may  enter  licensed 

premises. 

67.  Penalty  for  refu-iial  to  allow  entry,  etc. 

68.  Penalty   for   doing    business   without 

license. 

69.  Penalties  for  breach  of  rules. 

pawnbrokehs. 

70.  Licenses. 

71.  Pawnbrokers    to   retain   articles    four 

months,  etc. 

72.  Rate  of  interest  may  be  limited. 

73.  Officers  may  enter  pawnbroker's  shop, 

etc. 

74.  Penalty  for  refusing  to  admit  officer. 

75.  Penalty  for  acting  without  license. 

76.  Loans  on  personal  property  regulated. 

77.  Fee  for  license. 

78.  Regulations. 

79.  Pawnbrokers     to     keep     record     of 

pledges,  etc. 


Sect. 

80.  Memorandum  to  pledgor. 

81.  Books  to  be  open  to  inspection. 

82.  Penalty. 

83.  Record  of  amount  loaned  on  tools,  etc. 

84.  Penalty. 

85.  .Application  of  certain  sections. 


86.  Loans  on  collateral  security  of  house- 

hold goods,  etc. 

87.  Record  book  to  be  open  to  inspection. 

88.  When  articles  pledged  are  to  be  re- 

tained. 

89.  Penalty  for  refusing  inspection,  etc. 

90.  Loans    of    less    than    one    thousand 

dollars. 

91.  Loans  secured  by  pledge,  etc. 

92.  Loan  on  security  of  household  furni- 

ture. 

93.  Notice  to  foreclose. 

94.  Liability     for    refusal     to     discharge 

mortgage. 

95.  Application  of  five  preceding  sections. 

96.  Licenses  for  business  of  making  small 

loans. 

97.  Regulations.     Investigations. 

98.  Returns  to  commissioner. 

99.  Examination  of  licensees. 

100.  Rate  of  interest. 

101.  Term  and  fomi  of  license.    Posting. 

102.  Fees. 

103.  Penalty     for     violation     of     law     by 

licensees. 

104.  Conditions  of  granting  license. 

105.  Bond. 

106.  Recover}'  of  illegal  interest. 

107.  Mortgage,     etc.,     as     security     dis- 

charged in  payment  of  loan. 

108.  Validity  of  mortgage,  etc. 

109.  Receipt  for  part  payment. 

110.  Penalty  for  acting  without  a  license. 

111.  Law  as  to  rate  of  interest  in  absence 

of  agreement  not  affected. 

112.  Duties  of  state  police,  etc. 

113.  Old  returns  may  be  destroyed. 

114.  Certain  associations  need  not  procure 

licenses. 

STEAM    ENGINES    AND    FURNACES. 

115.  Licenses. 

116.  Changes  in  furnaces,  etc.,  erected  be- 

fore acceptance  of  law. 

117.  .Appeal. 

118.  Stationary  engines. 

119.  Furnaces,    etc.,    illegally    erected    or 

used  are  nuisances. 

120.  Application    of    five    preceding    sec- 

tions. 

SALE    OF    FIREARMS. 

121.  Definitions. 

122.  Licenses. 

123.  Conditions  of  licenses. 


Chap.  140.] 


LICENSES. 


1413 


Sect. 

12-t.  Term  of  licenses. 

125.  Suspension  or  revocation  of  licenses. 

126.  Signs,  etc.,  evidence  that  firearms  are 

kept  for  sale. 

127.  Transfer  of  licenses. 

12S.  Penalty  for  selling  without  a  license. 

129.  Penalty  for  giving  false  name,  etc. 

130.  Penalty   for  selling  firearms,   etc.,   to 

minor  under  fifteen. 

131.  License  to  carry  pistol,  etc. 

SMOKE    NUISANCE. 

132.  Smoke  nuisance. 

133.  Permits. 

134.  Objections  to  permits. 

135.  Enforcement. 

136.  Penalty. 

D003. 

137.  Licenses. 

138.  Same  subject. 

139.  Fees. 

140.  Breeder's  Ucense. 

141.  Penalty  for  keeping   unlicensed   dog. 

142.  Keeping  of  bloodhound,  etc. 

143.  Penalty. 

144.  Dog  to  be  removed  or  killed  in  certain 

circumstances. 

145.  License  to  have  description  of  liydro- 

phobia  printed  on  it. 

146.  License   valid   throughout   the   state, 

etc. 

147.  Issuing  of  licenses,  disposition  of  fees, 

etc. 

148.  Bond  of  city  clerk. 

149.  Accounts  of  county,  etc.,  clerks. 

150.  Assessors  to  take  list  of  dogs. 

151.  Dog  officers.     Killing  unlicensed  dogs. 

152.  Returns  by  dog  officers. 

153.  Warrant  to  dog  ofiieers. 

154.  Mayor,  etc.,  to  certify  to  district  at- 

torneys as  to  warrants. 

155.  Damage  by  dogs. 

156.  Dog     attacking     person     or     certain 

animals  may  be  killed,  when. 

157.  Complaint  as  to  dangerous  dog. 

158.  Dog  proved  dangerous  may  be  killed. 

159.  Treble  damages  if  dog,   after  notice, 

causes  injury,  etc. 

160.  Protecting  domestic  animals  from  in- 

jury by  dogs. 

161.  Certain  damages  by  dogs  to  be  paid 

by  the  county. 

162.  Reward  for  killing  dog  found  injuring 

domestic  animals. 

163.  Notice  to  owner  to  kill  such  dog. 

164.  Penalty  for  not  confining  dog. 

165.  Appointment  of  persons  to  investigate 

damages  by  dogs. 

166.  Person  damaged  has  choice  of  remedy. 

167.  Dogs  may  Ix-  required  to  be  muzzled. 

168.  Service  of  notice.     Penalty. 

169.  Penalty  on  town  officer. 

170.  Disposition    of   fees,    etc.,   in   Suffolk 

county. 


Sect. 

171.  Owner   of   dog   liable    to    county   for 

damages  paid  by  it. 

172.  Disposition  of  une.xpended  balance  of 

dog  fund. 

173.  Ordinances  and  by-laws  as  to  dog.s. 

174.  Recovery  of  penalties. 

175.  Liability  for  killing,   etc.,   a   licensed 

dog. 

STALLIONS. 

176.  Registration. 

BILLIARD     TABLES     AND     BOWLING     ALLEYS. 

177.  Licenses. 

178.  Penalty. 

179.  Penalty  for  admitting  minors  to  bil- 

liard rooms,  etc. 

180.  Penalty    for    unlawful    use,    etc.,    of 

bowling  alley. 

THEATRICAL    EXHIBITIONS,     PUBLIC    AMUSE- 
MENTS,   ETC. 

181.  Licenses. 

182.  Penalty  for  unlicensed  exhibition. 

183.  Darkened     hall     prohibited      during 

progress  of  public  dances  therein. 

184.  Penalty  for  exhibition  when  liquor  is 

sold. 

185.  Masked  ball  prohibited. 

SKATING    RINKS.    ETC. 

186.  License. 

187.  Penalty. 

PICNIC  GROVES. 

188.  License. 

189.  Penalty. 

190.  Peddling  near  picnic  grove  forbidden. 

STEAMBOATS. 

191.  License. 

192.  Form  of  license.     Fee. 

193.  Penalty. 

BOATING    .4.ND    BATHING. 

194.  License. 

195.  Posting  notices. 

196.  Penaltj'  for  acting  without  license. 

GENERAL    PROVISIONS. 

197.  Admission    of   children    to   entertain- 

ments regulated. 

198.  Admission  of  young  persons  to  dance 

halls  and  skating  rinks  regulated. 

199.  Posting  copy  of  law. 

200.  Penalty. 

201.  Officers    may    enter    billiard    rooms, 

etc 

202.  Form,  etc.,  of  certain  licenses. 

203.  Term  of  licenses. 

204  License  valid  only  in  place  specified. 

205  Revocation  of  license. 


1414 

Definition. 


LICENSES. 


[Chap.  140. 


Section  1.     "Licensing  authorities"  as  used  in  this  chapter,  unless  a  1 

contrary  meaning  is  required  by  the  context,  shall  mean  the  boards  in  2 

Boston  and  other  cities  which  by  special  statutes  or  city  charters  have  3 

the  power  to  issue  licenses  for  innholders  or  common  N-ictuallers,  the  4 

aldermen  in  other  cities  and  the  selectmen  in  towns.  5 


License. 
C.  L.  79,  §  2. 
1692-3,  9,  §  1. 
1703-4,  5,  5  1. 
17S6,  68,  §  1. 
1792,  25. 
1832,  166,  §§  4, 
6,8. 
^  1833,  122. 
R.  S.  47. 
§§  17.  18. 
1837,  242,  §  2. 
G.  S.  88, 
§§  2,  21. 
1875.  99,  §  6, 
cl.  5. 

1878.  241,  §  8. 

1879.  38,  §  1. 
P.  S.  102, 

l§  2.  24. 
1885.  S3; 
323.  §  2. 

1894.  235; 
351;  428,  §4. 

1895,  343. 


INNHOLDERS   AND   COMMON   VICTUALLERS. 

Section  2.  Licensing  authorities  may  grant  licenses  to  persons  to  be  1 
innholders  or  common  victuallers.  Such  Ucense  shall  not  be  issued  or  be  2 
valid  until  it  has  been  signed  by  a  majority  of  the  aldermen  in  cities  3 
where  the  license  is  to  be  granted  by  the  aldermen,  by  a  majority  of  the  4 
licensing  board  in  other  cities  or  by  the  selectmen  in  towns.  An  alderman,  5 
any  member  of  the  licensing  board  or  a  selectman  may  refuse  to  sign  a  6 
license  for  a  person  who,  in  his  opinion,  has  not  complied  Mith  tliis  chap-  7 
ter.  Tliis  section  shall  not  recjuire  the  licensing  authorities  to  grant  S 
either  of  said  hcenses  if,  in  their  opinion,  the  pubhc  good  does  not  recjuire  9 
it.  A  fee  of  not  more  than  five  dollars  may  be  charged  for  either  of  said  10 
licenses.  The  hcenses  shall  be  recorded  in  the  office  of  the  licensing  11 
authorities.  An  alderman,  member  of  a  licensing  board  or  selectman  12 
who  signs  a  hcense  granted  contrary  to  this  chapter  shall  be  punished  by  13 
a  fine  of  not  more  than  fifty  dollars.         R  l.  102,  §  2.  1906, 291,  §  4.  14 

1910,  383.  141  Mass.  23.  225  Mass.  104. 

1916,  Sp.  310.  221  Mass.  395.  3  Op.  A.  G.  276.^ 


Form  of 
innholders' 
licenses. 
1915,  180,  §  5. 
1918,  259,  §  2. 


Section  3.    All  innholders'  licenses  shall  be  expressed  to  be  subject  1 

to  sections  twenty-two  to  tliirty-two,  inclusive,  of  this  chapter  and  sec-  2 

tions  twenty-five  to  twenty-seven,  inclusive,  of  chapter  two  hundred  and  3 

seventy-two.  4 


Contents  of 
license  of  aa 
innholder  or 
common 
victualler. 
Term. 

C.  L.  83.  §  15. 
1703-4.  5,  §  1. 
1780,  68.  §  2. 
1832,  166, 
§§  6,  7. 
R.S.  47. 
5S  17,  19. 


Section  4.  Every  license  of  an  Innliolder  or  common  \ictualler  shall 
specify  the  street  and  number,  if  any,  of  the  building  where  the  business 
is  to  be  carried  on  or  give  some  other  particular  description  thereof,  and 
the  Ucense  shall  not  protect  a  Hcensee  who  carries  on  liis  business  in 
any  other  place.  Such  hcenses  shall  expire  on  April  tliirtieth  of  each 
year;  but  they  may  be  granted  during  April,  to  take  efi'ect  on  May  first 

following.  G.S.SS,  §§2,3. 


1878,  241,  §  9. 

1879,  38,  §  2. 


P.  S.  102,  i 
1890,  73. 


R.  L.  102,  |§  3,  4. 
201  Mass.  204. 


Section  5.     Every  innholder  and  every  common  victualler  shall  at 

all  times  be  provided  with  suitable  food  for  strangers  and  traA'elers. 

Every  innliolder  shall  also  have  upon  his  premises  suitable  rooms,  with 

beds  and  bedding,  for  the  lodging  of  his  guests,  and,  if  the  licensing 

1832, 166,;  §io.  authorities  so  require,  be  provided  with  stable  room,  hay  and  provender 


Innholders, 
etc.,  to  have 
suitable  ac- 
commodations 
for  travelers. 
C.  L.  82,  §  10. 
1698.  10.  §  1. 
1786.  68.  I  3 


R.  S.  4 

G.  S.  88,  §  8. 


for  their  horses  and  cattle. 

p.  S.  102.  §§  5,  6. 


R.  L.  102.  §  5. 


1878.  241,  §§  1,  2. 

221  Mass. 


Refusal  of 

license. 

1878.  241, 

§§3,4. 

P.  S.  102, 

5§  7,  8. 

R.  L.  102.  §  6. 

201  Mass.  204. 

221  Mass.  70. 


Section  6.    An  innholder's  or  common  victualler's  license  shall  not  1 

be  granted  unless  at  the  time  of  making  application  therefor  the  applicant  2 

has  upon  his  premises  the  necessary  implements  and  facilities  for  cooking,  3 

preparing  and  serving  food  for  strangers  and  travelers;   and,  if  he  is  an  4 

applicant  for  an  innholder's  license,  also  has  the  rooms,  beds  and  bedding  5 

and  stable  room  and  prov'ender  for  horses  and  cattle  required  by  law.  6 


1919,  99. 
189  Mass.  70. 


Chap.  140.]  licenses.  1415 

1  Section  7.    An  innholder  who,  upon  request,  refuses  to  receive  and  feeling  to"^ 

2  make  suitable  provision  for  a  stranger  or  traveler,  and  also  for  his  horses  [^if^^l^ 

3  and  cattle,  when  he  may  under  the  provisions  of  this  chapter  be  legally  '^j^^^f  §  i°- 

4  required  so  to  do,  shall  be  punished  by  a  fine  of  not  more  than  fifty  n,  §  4. ' 

5  dollars.  1786,  68,  §  3.  1832,  166.  §  10.  R.  S.  47,  §  8. 

G.  S.  SS,  §  9.  1878,  241,  §  5.  P.  S.  102,  §  9.  R.  L.  102,  §  7. 

1  Section  8.     A  common  victualler  who,  upon  request,  on  any  day  but  Penalty  for 

2  Sunday,  refuses  to  supply  food  to  a  stranger  or  traveler  shall  be  punished  to  traveler. 

3  by  a  fine  of  not  more  than  fifty  dollars. 

1878,  241,  §  6.  P.  S.  102,  §  10.  R.  L.  102,  §  8.  221  Mass.  70. 

1  Section  9.     If,  in  the  opinion  of  the  licensing  authorities,  a  licensee  Revocation 

2  as  an  innholder  or  a  common  victualler  ceases  to  be  engaged  in  the  business  i78'6,^6&§  s. 

3  he  is  licensed  to  pursue,  or  fails  to  maintain  upon  his  premises  the  im-  R^^l.'il,^!!.'"' 

4  plements  and  facilities  required  by  this  chapter,  they  shall  immediately  G^I'lli^iV^- 

5  revoke  his  license.     If  a  licensee  at  any  time  conducts  his  licensed  busi-  i?1'|'*'' 
G  ness  in  an  improper  manner,  the  licensing  authorities,  after  notice  to  the  p,  s!  102. 

7  licensee  and  reasonable  opportunity  for  a  hearing,  may  upon  satisfactory  r.  l  102, 

8  proof  thereof  suspend  or  revoke  his  license.    An  innholder  who  violates  i9is~  w."' 

9  section  seven  or  a  common  victualler  who  violates  section  eight  shall    ' '"  "" 

10  forfeit  his  license.     A  licensee  who  is  convicted  a  second  time  of  the 

11  violation  of  any  of  the  provisions  of  sections  six  to  eighteen,  inclusive, 

12  shall  forfeit  his  license. 

1  Section  10.     An  innholder  shall  not  be  liable  for  losses  sustained  by  Liability  oi 

2  a  guest  except  of  wearing  apparel,  articles  worn  or  carried  on  the  person,  loss  of  " 

3  personal  baggage  and  money  necessary  for  traveling  ex-penses  and  personal  isssfwo,  §  1. 

4  use,  nor  shall  such  guest  recover  of  an  innholder  more  than  one  thousand  fs?!, lis!/ 1'. 
.5  dollars  as  damages  for  any  such  loss;  but  an  innholder  shall  be  liable  in  ^^^^  ^°^^  ^  12. 

6  damages  to  an  amount  not  exceeding  three  thousand  dollars  for  the  loss  js^^.  sos.    ^^ 

7  of  money,  jewels  and  ornaments  of  a  guest  specially  deposited  for  safe  a  Pick  2"so. 

8  keeping,  or  offered  to  be  so  deposited,  with  such  innholder,  person  in  i4o  Mass.  123. 

9  charge  at  the  office  of  the  inn,  or  other  agent  of  such  innholder  authorized 

10  to  receive  such  deposit.     This  section  shall  not  affect  the  innholder's 

11  liability  under  any  special  contract  for  other  property  deposited  with 

12  him  for  safe  keeping  after  being  fully  informed  of  its  nature  and  value, 

13  nor  increase  his  liability  in  case  of  loss  by  fire  or  overwhelming  force 

14  beyond  that  specified  in  the  following  section. 

1  Section  11.     In  case  of  loss  by  fire  or  overwhelming  force,  innholders  Liability  for 

2  shall  be  answerable  to  their  guests  only  for  ordinary  and  reasonable  care  isss,  405?§  2. 

3  in  the  custody  of  their  baggage  or  other  property. 

G.  S.  88,  §  11.  P,  S.  102,  §  15.  R.  L.  102,  §  11. 

1  Section  12.     Whoever  puts  up  at  an  inn  or  boarding  house  and,  fraudifentfy 

2  without  having  an  exTiress  agreement  for  credit,  procures  food,  enter-  procuring 

,.  i.'^.,  .  ii.  i-i-  entertainment 

6  tamment  or  accommodation  without  paying  therefor,  and  with  intent  at  an  inn 

4  to  cheat  or  defraud  the  owner  or  keeper  thereof;  or,  with  such  intent,  hous°e.'^  '" 

5  obtains  credit  at  an  inn  or  boarding  house  for  such  food,  entertainment  p  ki62,§  is. 

6  or  accommodation  by  means  of  any  false  show  of  baggage  or  eft'ects  SUf;  {eg.'  ^ '' 

7  brought  thereto;   or,  with  such  intent,  removes  or  causes  to  be  removed  ''■  ^-  ^'^^  ^  ^^' 

8  any  baggage  or  effects  from  an  inn  or  boarding  house  while  a  lien  exists 

9  thereon  for  the  proper  charges  due  from  him  for  fare  and  board  furnished 


1416 


LICENSES. 


[Chap.  140. 


therein,  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  b_y  10 
imprisonment  for  not  more  than  three  months.  11 

Sti^n°s'tobr°      Section  13.     Innholders  shall  post  a  printed  copy  of  this  and  the  1 

fsrotlss,  §  3.    three  preceding  sections  in  a  conspicuous  place  in  each  room  of  their  inns.  2 

r*l'  10^'  ^  ^    Boarding  house  keepers  shall  post  a  copy  of  the  preceding  section  in  a  .3 

§§'  12, 13'.'         conspicuous  place  in  each  room  of  their  boarding  houses.  4 


biggagein"pos-  SECTION  14.  An  innholdcr,  after  retaining  for  six  months  from  the  1 
iToid^re"^ '"°"  time  of  departure  of  a  guest  from  his  inn  any  trunks,  bags,  valises,  parcels,  2 
1894'  isi'  ^ '  clothing,  goods  or  other  personal  property  of  a  guest  which  has  been  aban-  3 
R.  L.'  102,  §  14,  doned  by  such  guest,  or  which  such  innholder  retains  by  virtue  of  his  4 
lien  thereon  for  the  unpaid  board,  lodging  and  other  charges  of  such  .5 
guest,  may  sell  the  same  by  public  auction  upon  the  premises  of  the  inn,  6 
notice  of  the  time  and  place  of  sale  first  being  posted  in  a  conspicuous  7 
place  in  the  office  of  the  inn  for  four  weeks  prior  to  the  date  of  such  sale,  8 
and  published  once  in  each  of  three  successive  weeks  in  a  newspaper,  if  9 
any,  published  in  the  town  where  the  inn  is  situated;  otherwise,  in  a  10 
newspaper  published  in  the  county  where  the  inn  is  situated,  the  first  11 
publication  of  such  notice  to  be  not  less  than  twenty-one  days  before  12 
the  day  of  sale.  A  copy  of  such  notice  shall  be  sent  by  registered  mail  13 
addressed  to  said  guest  at  the  residence  given  by  him  in  the  register  of  14 
such  inn.  Such  notice  shall  contain  a  descriptive  list  of  all  such  property  15 
and  of  all  such  specific  marks  as  may  serve  to  identify  such  propert.y,  16 
and  the  name  of  the  guest  so  far  as  known  to  such  innholder.  17 

Section  15.     The  proceeds  of  such  sale,  after  deducting  reasonable  1 

charges  and  expenses  incurred  in  the  storage  and  sale  of  such  property,  2 

shall  be  applied  to  the  discharge  of  the  lien  of  such  innliolder  thereon  3 

for  the  board,  lodging  and  other  charges  of  such  guest,  and  any  proceeds  4 

remaining  thereafter  shall  be  paid  to  the  commonwealth.  5 

pr^o^eedVof  sale      Section  16.     If,  withiu  three  years  after  such  sale,  the  owner  of  any  1 

ownlr"'''''  *°     s"^'^  property  claims  it  and  proves  his  ownership  thereof,  the  said  pro-  2 

R  ^L  102'  1 16    ^^^'^^^>  ^^^^^'  deducting  all  reasonable  charges  and  expenses,  shall  be  paid  3 

over  to  him  by  the  state  treasurer.  4 


Disposition  of 

proceeds  of 

sale 

1S93.  419,  §  2. 

R.  L.  102.  §  15. 


Negligence 

of  guest  a 

defence. 

1853,  405,  §  3. 

G.  S.  8S,  §  12. 

P.  S.  102.  ^  16. 

R.  L.  102,  §  17. 

140  Mass.  123. 

145  Mass.  1S6. 

Signs. 

C.  L.  79,  5  2. 

1786,  68.  §  3. 

1S32,  166,  ^  10. 

R.  S.  47,  §  7. 

G.  S.  88,  S  14. 

P.  S.  102,  §  17. 

R.  L,  102,  §  18. 

Summary  of 

laws  to  be 

furnished 

licensees. 

1837,  242,  S  5. 

G.  .S.  88.  §  22. 

P.  S.  102,  s  2.5. 

Section  17.     An  innholder  against  whom  a  claim  is  made  for  loss  1 

sustained  by  a  guest  may  show  that  such  loss  is  attributable  to  the  2 

negligence  of  the  guest  or  to  his  failure  to  comply  with  the  regulations  of  3 

the  inn,  if  they  are  reasonable  and  proper  and  are  shown  to  have  been  4 

duly  brought  to  the  notice  of  the  guest  by  the  innholder.  5 

Section  18.     Every  innholder  and  common  victualler  shall  at  all  times  1 

have  a  board  or  sign  affixed  to  his  house,  shop,  cellar  or  store,  or  in  a  2 

conspicuous  place  near  the  same,  with  his  name  legibly  inscribed  thereon  3 

in  large  letters  and  the  business  for  which  he  is  licenseil  inscribed  thereon,  4 

and  upon  neglect  thereof  shall  forfeit  twenty  dollars.  5 

Section  19.    The  state  secretary  shall  cause  a  condensed  summary  of  1 

all  laws  relative  to  innholders  and  common  victuallers  to  be  printed,  and  2 

shall  supply  copies  thereof  to  licensing  authorities,  who  shall  at  the  time  3 

of  granting  each  license  provide  the  licensee  with  a  copy  of  such  summary.  4 

R  L.  102,  §  22. 


Chap.  140.]  licenses.  1417 

1  Section  20.     Wlioever  assumes  to  be  an  innholder  or  common  vict-  Penalty  on  un- 

2  ualler  without  being  licensed  as  such  under  this  chapter  shall  forfeit  one  howlr,  etc" 

3  hundred  dollars. 

C.  L.  79,  §  2;  84.  §  3.         1S32,  166.  §§  1.  3  P.  S.  102,  §  1. 

178(;,  68,  §1.  R.  S.  47,  §1.  R.  L.  102,'§1. 

1830,  136,  §§  1,  2,  G.  S.  88.  §  1,  101  Mass.  214. 

1  Section  21.    Whoever  is  convicted  a  third  time  of  a  ^•iolation  of  any  Penalty 

2  provision  of  the  preceding  sections,  except  those  contained  in  sections  "onvirtion. 

3  seven  and  eight,  shall,  in  addition  to  the  penalties  before  provided,  be  nge'.ls, If. 

4  punished  by  imprisonment  for  not  more  than  three  months.  ^^--  '^^'  ^  ^^ 

R.  S.  47,  §  29.  G.  S.  88,  §  17.  R.  L.  102,  §  21. 

1837,  242,  §  4.  P.  S.  102,  §  20. 

LODGING  HOUSES. 

1  Section  22.     "Lodging  house",  as  used  in  sections  twenty-two  to  DeBnition 

2  thirty-one,  inclusive,  shall  mean  a  house  where  lodgings  are  let  to  five  '^^^'^^^'^  '• 

3  or  more  persons  not  within  the  second  degree  of  kindred  to  the  person 

4  conducting  it,  and  shall  not  include  dormitories  of  charitable,  educational 

5  or  philanthropic  institutions. 

1  Section  23.     Licensing  authorities  may  grant  licenses   for    lodging  Licenses. 

2  houses  which  shall  be  for  the  period  provided  in  section  four  and  shall  §5'!; 9.^^' 

3  be  issued  without  charge.    Said  authorities  shall  enforce  sections  twenty- 

4  four  to  thirty-one,  inclusive,  and  shall  prosecute  all  violations  thereof. 

1  Section  24.    Whoever  conducts  a  lodging  house  without  a  license  penalty. 

2  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  more  than  '^^*'  ^^^'  ^  *• 

3  five  hundred  dollars  or  by  imprisonment  for  not  more  than  three  months, 

4  or  both. 

1  Section  25.     Premises  occupied,   used   or  controlled  by  a  licensee  inspection. 

2  under  sections  twenty-two  to  thirty-one,  inclusive,  or  under  an  innholder's  ^^'*'  ^^^'  ^  ^' 

3  license  shall  be  subject  to  inspection  by  the  licensing  authorities  and  their 

4  authorized  agents,  and  by  the  police  on  request  from  the  licensing 

5  authorities. 

1  Section  26.    Whoever,  being  licensed  as  a  lodging  house  keeper  under  penalty  for 

2  sections  twenty-two  to  thirty-one,  inclusive,  or  as  an  innholder,  or  being  P"mo"i"* 

3  in  actual  charge,  management  or  control  of  the  premises  for  which  the  Jgig^lgQ 

4  license  is  issued,  knowingly  permits  the  premises  under  his  control  to  be  SM.'s. 

5  used  for  the  purpose  of  immoral   solicitation,   immoral   bargaining  or 

6  immoral  conduct  shall  be  punished  by  a  fine  of  not  less  than  five  hun- 

7  dred  nor  more  than  one  thousand  dollars  or  by  imprisonment  for  not 

8  less  than  six  months  nor  more  than  one  jear,  or  both.    E\idence  that  a 

9  room  in  a  hotel  or  lodging  house  was  not  actually  used  for  immoral  con- 

10  duct  shall  not  prevent  a  conviction  under  this  section  of  a  person  in 

11  actual  charge,  control  or  management  of  the  premises  who  permits  the 

12  occupation  of  such  a  room  knowing  or  having  good  reason  to  know  that 

13  the  parties  occupying  such  a  room  intended  to  use  it  for  immoral  solici- 

14  tation,  immoral  bargaining  or  immoral  conduct.     If  it  is  required  that 

15  registers  be  kept,  as  provided  in  sections  twenty-seven  and  twenty-eight, 

16  evidence  that  the  person  in  actual  charge,  control  or  management  of 

17  the  premises  has  knowingly  permitted  the  occupation  of  a  private  room 

18  of  less  than  four  hundred  square  feet  floor  area,  containing  a  bed  or 


1418 


LICENSES. 


[Chap.  140. 


couch,  by  the  same  woman  on  different  occasions  within  a  period  of  19 
thirty  days  with  different  men,  or  by  the  same  man  on  different  occasions  20 
within  a  period  of  thirty  days  with  different  women,  shall  be  prima  facie  21 
evidence  of  a  violation  of  this  section.  22 


Register. 
1918. 259, 
§§  5,  8. 


Section  27.  Every  innholder,  and  every  lodging  house  keeper  re- 
quired so  to  do  imder  section  twenty-eight,  shall  keep  or  cause  to  be 
kept,  in  permanent  form,  a  register  in  which  shall  be  recorded  the  true 
name  or  name  in  ordinary  use  and  the  residence  of  every  person  engaging 
or  occupying  a  priA'ate  room  averaging  less  than  four  hundred  square 
feet  floor  area,  excepting  a  private  dining  room  not  containing  a  bed  or 
couch,  or  opening  into  a  room  containing  a  bed  or  coUch,  for  any  period 
of  the  day  or  night  in  any  part  of  the  premises  controlled  by  the  licensee,  8 
together  with  a  true  and  accurate  record  of  the  room  assigned  to  such  9 
person  and  of  the  day  and  hour  when  such  room  is  assigned.  The  entry  10 
of  the  names  of  the  person  engaging  a  room  and  of  the  occupants  of  said  11 
room  shall  be  made  by  said  person  engaging  said  room  or  by  an  occupant  12 
thereof.  Until  the  entry  of  such  name  and  the  record  of  the  room  has  13 
been  made,  such  person  shall  not  be  allowed  to  occupy  privately  any  14 
room  upon  the  licensed  premises.  Such  register  shall  be  retained  by  the  15 
holder  of  the  license  for  a  period  of  at  least  one  year  after  the  date  of  the  16 
last  entry  therein,  and  shall  be  open  to  the  inspection  of  the  licensing  17 
authorities,  their  agents  a.nd  the  police.  Whoever  violates  any  pro-  IS 
vision  of  this  section  shall  be  punished  by  a  fine  of  not  less  than  one  19 
hundred  nor  more  than  five  hundred  dollars  or  by  imprisonment  for  not  20 
more  than  three  months,  or  both.  21 


Order  to  keep 
a  register. 
191S,  259,  §  7. 


Section  28.    Every  person  conducting  a  lodging  house  shall  within  1 

twenty-four  hours  after  he  is  ordered  to  do  so  by  the  licensing  authorities  2 

keep  a  register.    The  said  authorities  may  issue  such  order  at  any  time,  .3 

and  shall  do  so  upon  receipt  of  an  affida^'it  of  a  commissioned  officer  of  4 

the  United  States  army  or  navy  or  a  police  officer  stating  that  the  affiant  5 

knows  or  believes  such  lodging  house  is  being  used  for  immoral  solicita-  6 

tion,  immoral  bargaining  or  immoral  conduct.  7 


Penalty  for 
false  entry  in 
register,  etc. 
1918,  259,  §  6. 


Revocation,   , 
etc.,  of 
licenses. 
1918,  259,  §  9. 


Section  29.     No  person  shall  write  or  cause  to  be  written,  or  if  in  1 

charge  of  a  register  knowingly  permit  to  be  written,  in  any  register  in  2 

any  lodging  house  or  hotel  any  other  or  different  name  or  designation  3 

than  the  true  name  or  name  in  ordinary  use  of  the  person  registering  or  4 

causing  himself  to  be  registered  therein.     No  person  occupying  such  5 

room  shall  fail  to  register  or  fail  to  cause  himself  to  be  registered.    Who-  6 

ever  violates  any  provision  of  this  section  shall  be  punished  by  a  fine  of  7 

not  less  than  ten  nor  more  than  twenty-five  dollars.  8 

Section  30.     A  license  issued  under  sections  twenty-two  to  thirty-  1 

one,  inclusive,  or  an  innholder's  license,  shall  be  revoked  if  at  any  time  2 

the  licensing  authorities  are  satisfied  that  the  licensee  is  unfit  to  hold  3 

the  license.    They  may  suspend  and  make  inoperative,  for  such  period  4 

of  time  as  they  may  deem  proper,  the  licenses  mentioned  herein  for  any  5 

cause  deemed  satisfactory  to  them.    The  revocation  and  suspension  shall  6 

not  be  made  until  after  investigation  and  a  hearing,  or  after  giving  the  7 

licensee  an  opportunity  to  be  heard;  notice  of  the  hearing  shall  be  left  at  8 

the  premises  of  the  licensee  not  less  than  three  days  before  the  time  9 

therefor.  10 


Chap.  140.]  licenses.  1419 

1  Section  31.    All  innholders,  and  all  lodging  house  keepers  who  have  Posting  of 

2  been  ordered  to  keep  a  register,  shall  post  in  a  conspicuous  place  near  the  ml,  259,  §  10. 

3  register  a  notice,  to  be  furnished  by  the  hcensing  authorities,  containing 

4  the  provisions  of  sections  twenty-se\en  and  twenty-nine  relating  to  the 

5  entry  of  names  and  residences  in  the  register,  together  with  the  penalty 

6  provided  for  their  \-iolation. 

1  Section  32.     The  clerk  of  a  court  where  any  person  is  convicted  of  a  Record  of 

2  violation  of  any  pro^^sion  of  sections  twenty-two  to  thirty-one,  inclusi^'e,  be  sent  to 

3  shall  forthwith  send  a  copy  of  the  record  of  the  conviction  to  the  licensing  authorities. 

4  authorities  in  the  town  where  the  offence  occurred.  i9i8, 259,  §  11. 

public  lodging  houses. 

1  Section  33.     In  cities  of  over  fifty  thousand  inhabitants  every  build-  fs94?4u°'§  1. 

2  ing  not  licensed  as  an  inn,  in  which  ten  or  more  persons  are  lodgetl  free  l^*-§'^^- 

3  or  for  a  charge  of  twenty-five  cents  or  less  for  each  person  for  a  day  i'"!!?^-, , 

4  of  twenty-four  hours,  or  for  any  part  thereof,  shall  be  deemed  a  public 

5  lodging  house  within  the  meaning  of  sections  thirty-four  to  forty,  in- 

6  elusive.     No  building  or  part  thereof  erected,  altered  or  converted  to 

7  be  used  as  such  a  public  lodging  house  shall  have  the  sleeping  compart- 

8  ments  arranged  on  the  cubicle  plan. 

1  Section  34.    The  officer  or  board  having  charge  of  the  police  in  any  Licenses. 

2  such  city  may  license  persons  to  keep  public  lodging  houses  therein,  and  §§  2,'?.    ' 

3  shall  immediately  revoke  such  license  if  the  licensee  violates  any  pro-  §§*2,'7',^8.' 

4  vision  of  sections  thirty-five  to  thirty-eight,  inclusive.    No  fee  shall  be 

5  charged  for  such  license,  and,  subject  to  section  forty-nine  of  chapter 

6  one  hundred  and  forty-three  when  applicable,  it  shall  expire  on  the 

7  thirtieth  day  of  April  next  after  the  granting  of  the  same.    Every  such 

8  license  shall  specify  the  street  and  number,  if  any,  of  the  building  where 

9  the  business  is  to  be  carried  on  or  give  some  other  particular  description 

10  thereof,  and  the  license  shall  not  protect  a  licensee  who  carries  on  his 

11  business  in  any  other  place. 

1  Section  35.    No  such  license  shall  be  granted  in  anv  such  citv  until  inspection  of 

^^  *  *  means  or 

2  the  inspector  of  buildings  thereof,  or  the  other  officer  or  board  having  escape  from 

3  authority  to  administer  the  laws  and  ordinances  in  regard  to  the  con-  isni,  414, 1  3. 

4  struction  of  buildings  therein,  has  certified  that  the  building,  if  it  has  §'5  3.'8    ' 

5  eight  or  more  rooms  or  ten  or  more  persons  are  accommodated  above  ^^''^'  ^"^^  ^  ""■ 

6  the  second  story,  complies  with  the  requirements  of  chapter  one  hundred  P«°»'ty'  §  ^°- 

7  and  forty-three,  and  in  other  cases  is  provided  with  sufficient  means  of 

8  escape  in  case  of  fire,  and  that  suitable  appliances  are  provided  for  ex- 

9  tinguishing  fires  and  for  giving  alarm  to  the  inmates  in  case  of  fire;  and 

10  such  officer  or  board  may  from  time  to  time  require  such  alterations  to 

11  be  made  or  such  additional  appliances  to  be  provided  as  may  in  his  or 

12  its  judgment  be  necessary  for  the  protection  of  life  and  property  in  case 

13  of  fire. 

1  Section  36.    No  such  license  shall  be  granted  in  any  such  city  until  bow^of""  ^^ 

2  the  board  of  health  thereof  has  certified  that  the  building  is  provided  5'^§^"'4j4  s^ 

3  with  a  sufficient  number  of  water  closets  and  urinals  and  with  good  and  1904!  242', 

4  sufficient  means  ol  ventilation;    and  the  said  board  may  from  time  to  ^^ 

5  time  require  the  licensee  thoroughly  to  cleanse  and  disinfect  all  parts  of    "^"^  "^' 

6  said  building  and  the  furniture  therein  to  the  satisfaction  of  such  board. 


1420 


LICENSES. 


[CH.A.P.    140. 


fsli^'414  §  5        Section  37.     In  every  public  lodging  house  a  register  shall  be  kept  1 

ITs'i*^'         ''^  which  shall  be  entered  the  name  and  address  of  each  lodger,  together  2 

with  the  time  of  his  arrival  and  departiu-e,  and  such  register  shall  at  all  3 

™*  ^'  times  be  open  to  the  inspection  of  the  police.  4 


pu^poses'of  Section  38.     The  keeper  of  every  public  lodging  house  shall  at  all  1 

]^94"^4iT  §  6    times,  when  so  required  by  any  officer  of  the  building  department,  of  the  2 

1904,242,         health  department,  or  of  the  police  department,  give  him  free  access  to  3 

said  house  or  any  part  thereof.  4 


i6,  8. 
Penalty,  §  40, 


Penalty  for 
keeping  public 
lodging  Louse 
without  a 
license. 

1894,  414,  §  7. 
1904,  242, 
§§  7,  8. 


Section  39.    Whoever  keeps  or  holds  himself  out  as  keeping  a  public  1 

lodging  house  without  being  duly  licensed  as  hereinbefore  pro^•ided,  and  2 

whoever  is  concerned  or  financially  interested  in  any  public  lodging  house,  3 

the  keeper  of  which  is  not  so  licensed,  shall  be  punished  by  a  fine  of  not  4 

more  than  one  hundred  dollars.  5 


Penalty. 
1894,  414,  5  7. 
1904.  242. 


Section  40.  Any  keeper  of  a  public  lodging  house  who  violates  any  1 
provision  of  sections  thirty-five  to  thirty-eight,  inclusive,  shall  be  punished  2 
bv  a  fine  of  one  hundred  dollars.  3 


Penalty  for 

keeping 

unlicensed 

intelligence 

office. 

1848,  270,  §  1. 

G.  S.  88,  §  23. 

1872,  237. 

P.  S.  102,  §  26. 

R.  L.  102,  §  23. 


intelligence  offices. 

Section  41.  Whoever,  without  a  license  therefor,  establishes  or 
keeps  an  intelligence  office  for  the  purpose  of  obtaining  or  giving  in- 
formation concerning  places  of  employment  for  domestics,  servants  or 
other  laborers,  except  seamen,  or  for  procuring  or  giving  information 
concerning  such  persons  for  or  to  employers,  or  for  procuring  or  giving 
information  concerning  employment  in  business,  shall  be  punished  by 
a  fine  of  ten  dollars  for  each  day  such  office  is  so  kept. 


Licenses  for 
intelligence 
offices. 

1848,  270,  §  2. 
G   S.  88.  §  24. 
187(1,  147, 
§§1.2. 
1880,  84.  §  1. 
P.  S  102,  §  27 


Section  42.    The  licensing  board  in  Boston,  the  license  commission  1 

in  Lowell,  the  aldermen  in  other  cities  and  the  selectmen  in  towns,  may,  2 

for  the  purposes  mentioned  in  the  preceding  section,  grant  licenses  to  3 

suitable  persons,  subject  to  sections  two  hundred  and  two  to  two  hun-  4 

dred  and  five,  inclusive,  and  may  revoke  them  at  pleasm-e.  5 

R.  L.  102,  §  24.  1902,  187,  S  5.  1906,  291,  §  4.  1911,  645. 


Keeper  not  to 
receive  money 
unless  employ- 
ment is  fur- 
nished. 
1894,  180,  5  I 
R.  L.  102,  §  25. 


Section  43.    The  keeper  of  an  intelligence  office  shall  not  recei\e  1 

or  accept  any  money  from    a  person    seeking    employment    through  2 

the  agency  of  such  office,  unless  employment  of  the  kind  demanded  is  3 

furnished.  4 


Money  to  be 
refunded  in 
certain  cases. 
1894,  180,  §  2. 
R.  L.  102,  §  26. 


Section  44.     If  a  person  who  receives  employment  through  the  agency  1 

of  an  intelligence  office  is  discharged  by  his  employer  within  ten  days  2 

after  the  time  of  entering  upon  such  emplo\"ment,  and  such  discharge  3 

is  not  caused  by  his  inability,  incompetence,  refusal  to  perform  the  work  4 

required  or  other  fault,  the  keeper  of  such  intelligence  office  shall  on  de-  5 

mand  refund  to  him  five  sixths  of  the  amount  paid  to  such  keeper  b\-  the  6 

employer  on  account  of  such  employment.  7 


Statutes  to  be 

Erinted  on 
censes. 
1894,  ISO,  §  3. 
R.  L.  102,  1 27. 


Section  45.    City  and  town  officers  who  are  charged  with  the  duty  1 

of  granting  licenses  to  keepers  of  intelligence  offices  shall  cause  sections  2 

forty-three  to  forty-six,  inclusive,  to  be  printed  on  every  such  license.  3 

They  shall  also  cause  to  be  prepared  and  shall  furnish  to  each  keeper  of  4 


Ch.\.P.    140.]  LICENSES.  1421 

5  a  licensed  intelligence  office  copies  of  said  sections,  printed  upon  card- 

6  board  in  type  of  a  size  not  smaller  than  pica,  and  each  licensee  shall  con- 

7  spicuously  post  three  of  said  printed  copies  in  each  room  occupied  by 

8  him  for  the  purpose  of  such  intelligence  office. 

1  Section  46.     If  a  keeper  of  an  intelligence  office  violates  any  pro-  Penalty. 

2  vision  of  the  three  preceding  sections,  his  license  may  be  suspended  or  r.  l;  102,'  §  28. 

3  revoked  by  the  Ucensing  authorities  mentioned  in  section  forty-two  and  Jlg^M^als!  70. 

4  he  shall  be  punished  by  a  fine  of  not  less  than  twenty-five  nor  more  than 

5  fifty  dollars. 

MISCELLANEOUS   PROVISIONS. 

1  Section  47.     No  coflFee  house,  so  called,  or  tea  house  or  place  of  J"Xe^hJSIe3 

2  resort  for  refreshment  where  the  principal   business  is  or  purports  to  }?\'|^' 

3  be  the  sale  of  coffee  or  tea  as  a  beverage  shall  be  maintained  in  any 

4  town  which  accepts  tliis  section,  or  has  accepted  corresponding  pro- 

5  \asions  of  earlier  laws,  by  a  vote  of  a  city  council  or  by  vote  of  a  town  at 

6  a  town  meeting,  until  a  license  therefor  has  been  granted  by  the  licensing 

7  authorities.    The  fee  for  the  license  shall  be  five  dollars  or  such  other 

8  sum  as  shall  be  fixed  from  time  to  time  by  the  city  coimcil  or  selectmen. 

9  Licenses  issued  hereunder  shall  expire  on  May  first  following  the  date 

10  of  issue,  and  may  be  revoked  at  any  time  by  the  licensing  authorities. 

11  Whoever  violates  this  section  shall  be  punished  by  a  fine  of  not  more 

12  than  one  hundi-ed  dollars. 


1  Section  48.     Whoever  directly  or  indirectly  accepts  dr  receives  any  Penalty  for 

2  gratuity  given  to  his  employee  for  the  checking  of  clothing  shall  be  gratuit'y 

3  punished  by  a  fine  of  not  less  than  fiftj-  dollars.  wis.  i49,  § :.  ^o  employee 


ing 
given 


1  Section  49.     The  street  commissioners  and  the  police  commissioner  of  i';fn";''^art7 

2  Boston,  the  aldermen  of  anv  other  citv,  or  the  selectmen  of  anv  town  }-I9*j  ?S0' Lk 

3  may,  if  in  theii*  opinion  public  convenience  so  requires,  license  any  repu- 

4  table  person,  upon  the  payment  of  an  annual  license  fee  of  not  less  than 

5  fifty  dollars,  to  maintain  a  vehicle  for  the  sale  of  food  in  such  part  of  any 

6  public  way  and  during  such  hours  as  they  may  designate,  provided  that 

7  public  travel  is  not  incommoded  thereby.     Any  such  license  may  be 

8  revoked  by  them  at  any  time. 


1  Section  50.     No  license  as  aforesaid  shall  be  granted  to  use  any  part  Same  subject^. 

2  of  a  highway  the  fee  in  which  is  not  owned  by  the  town  unless  'the  owners 

3  of  the  land  abutting  on  that  part  of  the  way  consent  in  ■RTiting  to  the 

4  granting  of  the  license. 

1  Section  51.     No. person   shall   practice  manicuring   or  massage,  or  Manicuring, 

2  conduct  an  establishment  for  the  giving  of  vapor  baths  for  hire  or  reward,  ""po^batL. 

3  or  advertise  or  hold  himself  out  as  being  engaged  in  the  business  of  [HI',  Uk  1 1. 

4  manicuring,  massage  or  the  giving  of  said  baths  without  receiving  a 

5  license  therefor  from  the  board  of  health  of  the  town  where  the  said 

6  occupation  is  to  be  carried  on.    The  board  of  health  may  grant  the  license 

7  upon  such  terms  and  conditions,  and  may  make  such  rules  and  regula- 

8  tions  in  regard  to  the  carrying  on  of  the  occupation  so  licensed,  as  it 

9  deems  proper,  and  may  revoke  any  license  granted  by  it  for  such  cause 

10  as  it  deems  sufficient,  and  without  a  hearing;    provided,  that  a  person 

11  licensed  to  massage  or  to  conduct  an  establislmient  for  the  giving  of 


1422 


LICENSES. 


[Chap.  140. 


Officers  may 
enter  premises. 
1911,  443,  §  2. 


Penalty. 
1911,  443, 


Licenses  of 

junk  dealers. 

etc. 

1839. 

53, 

§§1. 

2.4. 

G.  S. 

88, 

§§2,5 

1.26. 

1862, 

205, 

§2 

1876. 

147, 

§§1, 

2 

ISSO, 

84.  §  1. 

P.  S. 

102, 

§§  28,  30. 

R.  L. 

102, 

§§29 

.31. 

1902, 

187, 

§§1. 

5. 

1910, 

554. 

§1. 

1911, 

645. 

1915, 

144, 

§1. 

1917, 

130. 

1918, 

291. 

§  18. 

1S3  Mass. 

196. 

1S9  Mass. 

70. 

220  Mass. 

552. 

Penalty. 

1839, 

53.  §  3. 

G.  S. 

88,  § 

•21. 

1862, 

205, 

§3. 

P.  S. 

102, 

§31. 

R.  L. 

102, 

§32. 

1902, 

187, 

§3. 

1910. 

5.54, 

§2. 

1918, 

291, 

§20. 

Junk  collector. 

1862, 

205. 

§1. 

P.S. 

102, 

§29. 

1900, 

416, 

§3. 

R.L. 

102. 

§30. 

1902, 

187, 

§2. 

1910, 

193. 

License  re- 

quired e-xcept 

in  certain 

cases 

1919, 

259, 

§§1, 

14. 

Classes  of 

licenses. 

1919, 

,259, 

.§2. 

vapor  baths  in  any  town  may,  at  the  request  of  a  physician,  attend  12 
patients  in  any  otlier  town  in  the  commonwealth  without  taking  out  13 
an  additional  license.  14 

Section  52.  Members  of  the  police  department  of  any  town  may  1 
enter  and  inspect  any  premises  in  that  town  used  for  manicuring  or  2 
massage  or  the  giving  of  vapor  baths.  3 


Section  53.  ^^lioever  violates  any  provision  of  section  fifty-one,  or 
any  rule  or  regulation  made  under  authority  thereof,  or  prevents  or 
hinders  any  member  of  a  police  force  from  exercising  the  authority  con- 
ferred upon  him  by  section  fifty-two,  shall  be  punished  by  a  fine  of  not 
more  than  one  hundred  dollars  or  by  imprisonment  for  not  more  than  six 
months,  or  both. 


Section  54.     Cities  and  towns  by  ordinance  or  by-law  may  pro\'ide  1 

for  the  hcensing,  by  the  police  commissioner  in  Boston,  by  the  license  2 

commission  in  Lowell,  by  the  aldermen  in  other  cities  and  by  the  select-  3 

men  in  towns,  of  suitable  persons  to  be  collectors  of,  dealers  in  or  keepers  4 

of  shops  for  the  purchase,  sale  or  barter  of  jmik,  old  metals  or  second  5 

hand  articles,  may  make  rules  and  regulations  relative  to  their  business,  6 

anfl  may  proNide  for  the  super\ision  thereof.     Said  licensing  board  or  7 

officer  may,  except  as  other\use  i3ro\ided  in  such  ordinance  or  by-law,  8 

make  additional  rules,  regulations  and  restrictions  which  shall  be  ex-  9 

pressed  in  all  licenses.     Said  licenses  may  be  revoked  at  pleasure,  and  10 

shall  be  subject  to  sections  two  hundred  and  two  to  two  hundred  and  11 

five,  inclusive,  except  that  societies,  associations  or  corporations  organ-  12 

ized  solely  for  reUgious  or  charitable  purposes  and  their  agents  shall  not  13 

be  required  to  pay  a  fee  for  such  licenses.               4  0p.A.G.633.  14 

Section  55.    \Vhoever  acts  as  a  collector  of,  dealer  in  or  keeper  of  a  1 

shop  for  the  purchase,  sale  or  barter  of  junk,  old  metals  or  second  hand  2 

articles  without  a  license,  or  in  any  other  place  or  manner  than  that  3 

designated  in  his  license  or  after  notice  to  him  that  his  license  has  been  4 

revoked,  or  violates  any  such  rule,  regulation  or  restriction,  shall  forfeit  5 

twenty  dollars.  6 

Section  56.    A  junk  collector  shall  be  deemed  to  be  any  person  who  1 

by  going  from  place  to  place  collects  by  purchase  or  otherwise  junk,  2 

old  metals  or  second  hand  articles,  whether  or  not  by  previous  contract  3 

or  arrangement.            isis.  291.  §  19.           is3  Mass.  i96.            220  Mass.  552.  4 


SALE   OF   SECOND  H.\ND   MOTOR  VEHICLES. 

Section  57.    No  person,  except  one  whose  principal  business  is  the  1 

manufacture  and  sale  of  new  motor  vehicles  but  who  incidentally  acquires  2 

and  sells  second  hand  vehicles,  shall  engage  in  the  business  of  buying,  sell-  3 

ing,  exchanging  or  assembling  second  hand  motor  vehicles  or  parts  thereof  4 

without  securing  a  license  as  provided  in  section  fifty-nine.  5 

Section  58.    Licenses  granted  under  the  following  section  shall  be  1 

classified  as  follows:  2 

Class  1 .  —  Any  person  who  is  the  recognized  agent  of  a  motor  vehicle  3 

manufacturer,  and  whose  principal  business  is  the  sale  of  new  motor  4 


Chap.  140.]  licenses.  1423 

5  vehicles,  the  sale  of  second  hand  motor  vehicles  being  incidental  thereto, 

6  may  be  granted  an  agent's  license. 

7  Class  2.  —  Any  person  whose  principal  business  is  the  buying  and  sell- 

8  ing  of  second  hand  motor  vehicles  may  be  granted  a  used  car  dealer's 

9  license. 

10  Class  3.  —  Any  person  whose  principal  business  is  the  buying  of 

1 1  second  hand  motor  vehicles  for  the  purpose  of  remodelling,  taking  apart 

12  or  rebuilding  the  same,  or  the  buying  or  selling  of  parts  of  second  hand 

13  motor  vehicles  or  tires,  or  the  assembling  of  second  hand  motor  vehicle 

14  parts  may  be  granted  a  motor  vehicle  junk  license. 

1  Section  59.    The  police  commissioner  in  Boston  and  the  licensing  Licensing 

2  authorities  in  other  cities  and  town.s  may  grant  hcenses  under  this  conte"trof 

3  section  which  shall  expire  on  January  first  following  the  date  of  issue  'igig^ooo'.'^j  3: 

4  unless  sooner  revoked.    The  fees  for  the  licenses  shall  be  fixed  by  the  Jj"'  ^^  ^^'• 

5  licensing  board  or  officer,  but  in  no  case  shall  exceed  fifty  dollars.    The 

6  license  shall  specify  all  the  premises  to  be  occupied  by  the  licensee  for 

7  the  purpose  of  carrying  on  the  licensed  business.    Permits  for  a  change 

8  of  situation  of  the  licensed  premises  or  for  additions  thereto  may  be 

9  granted  at  any  time  by  the  licensing  board  or  officer  in  writing,  a  copy 

10  of  which  shall  be  attached  to  the  license.     All  licenses  granted  under 

1 1  tliis  .section  shall  be  revoked  by  the  licensing  board  or  officer  if  it  appears, 

12  after  hearing,  that  the  hcensee  is  not  compljing  with  sections  fifty-seven 

13  to  sixty-mne,  inclusive,  or  the  rules  and  regulations  made  thereunder; 

14  and  no  new  license  shall  be  granted  to  such  person  thereafter,  nor  to  any 

15  person  for  use  on  the  same  premises,  without  the  approval  of  the  registrar 

16  of  motor  vehicles,  in  sections  fifty-nine  to  sixty-six,  inclusive,  called  the 

17  registrar.     The  hearing  may  be  dispensed  with  if  the  registrar  notifies 
IS  the  Ucensing  board  or  officer  that  a  licensee  is  not  so  compljing. 

1  Section  60.    The  registrar  may  from  time  to  time  make  rules  and  Rules  relative 

^  *  .....  to  purchase, 

2  regulations  consistent  \Mth  sections  fifty-se^•en  to  sixty-mne,  mclusn'e,  etc  of^ second 

3  relative  to  the  purchase,  sale  or  exchange  of  second  hand  motor  vehicles  vehicles. 

4  or  parts  thereof.    Such  rules  and  regulations  shall  be  subject  to  approval,  §  12-  350. 

5  and  shall  take  effect,  in  the  manner  pro^•ided  by  section  six  of  chapter  ^^  ^^^'  "^■ 

6  sixteen. 

1  Section  61.    All  second  hand  motor  vehicles  or  parts  thereof  pur-  vehicles  or 

2  chased  or  taken  in  exchange  by  any  licensee  under  class  two  or  three  of  Eept^o"  four 

3  section  fifty-eight,  or  left  on  the  premises  of  any  such  licensee  for  the  pur-  jgg;  259,  §  4. 

4  pose  of  sale,  exchange  or  assembly,  shall  be  retained  on  the  premises  for 

5  four  days  unless  the  licensee  receives  the  notice  provided  for  in  section 

6  sixty-four. 

1  Section  62.    Every  licensee  shall  keep  a  book,  in  such  form  as  shall  ^lepT Record 

2  be  approved  by  the  registrar,  in  which,  at  the  time  of  the  purchase,  sale,  J^^^asg  §  g- 

3  exchange,  or  receipt  for  the  purpose  of  sale,  of  any  second  hand  motor  aso,  '§§  lii, 

4  vehicle  or  parts  thereof,  shall  be  legibly  written  in  the  English  language 

5  an  account  and  description  of  such  motor  vehicle  or  parts,  with  the 

6  name  and  address  of  the  seller,  of  the  purchaser,  and  of  the  alleged  owner 

7  or  other  person  from  whom  such  motor  vehicle  or  parts  were  purchased 

8  or  received  or  to  whom  they  were  deli^'ered,  as  the  case  may  be.     Such 

9  description,  in  the  case  of  motor  vehicles,  shall  also  include  the  engine 


1424 


LICENSES. 


[Ch.\p.  140. 


.  number,  if  any,  the  maker's  number,  if  any,  chassis  number,  if  any,  and  10 
such  other  numbers  or  identification  marks  thereon  as  shall  be  required  11 
by  the  registrar,  and  shall  also  include  a  statement  that  a  number  has  12 
been  obliterated,  defaced  or  changed  if  such  is  the  fact.  13 


Daily  or 
weekly  reports 
by  licensees. 
1919.  259.  §  9: 
350,  H  111, 
115. 


Section  6-3.    Every  licensee  under  classes  two  or  three  of  section  1 

fifty-eight  shall  send  daily  by  mail  to  the  registrar  a  list,  on  blanks  pre-  2 

scribed  by  him,  of  the  second  hand  motor  vehicles  or  parts  thereof  pur-  3 

chased  or  sold  by  him  or  stored  for  the  purpose  of  sale  during  the  preced-  4 

ing  twenty-four  hoiu-s.    A  copy  of  such  list  shall  also  be  sent  daily  in  5 

Boston  to  the  poHce  commissioner  and  in  other  cities  and  towns  to  the  6 

local  chief  of  police.    Every  licensee  imder  class  one  shall  send  the  said  7 

list  weekly,  covering  a  period  of  seven  days.  8 


ruthorities  Section  64.    The  police  commissioner  of  Boston,  the  chief  of  police 

may  waive  the  of  anv  Other  citv,  the  selectmen  of  a  town,  or  any  officer  authorized 

four  (lavs  re-  ^  ,        ''  *  i»      i  •  i 

quirement._  _  by  them,  and  any  agent  or  inspector  oi  the  registrar  may,  by  written 
notice,  release  any  person  licensed  under  section  fifty-nine,  or  any  per- 
son described  in  the  following  section,  from  retaining  any  second  hand 
vehicle  or  part  thereof  for  the  period  prescribed  in  section  sixty-one  or 
sixty-five.  Upon  receipt  of  such  notice  such  licensee  or  person  shall  be 
deemed  to  have  comphed  \ntli  said  sections. 


1919,259,  §  10; 
350,  §1111. 
11.5. 


Notice  of  pro- 
posed sale  re- 
quired by  an 
unlicensed 
person. 

1919.259,  §  11; 
350,  §§111. 
115. 


Section  65.  Any  person  not  licensed  under  section  fifty-nine,  selling 
or  offering  to  sell  any  motor  \eliicle,  except  to  a  licensee  under  class 
one  of  section  fifty-eight  or  a  person  exempted  b>'  section  fifty-se^•en,  shall, 
at  least  four  days  before  such  sale,  notify  in  writing  the  registrar  and  the 
chief  of  police  or  selectmen  in  the  city  or  town  where  the  sale  is  to  be 
made,  or,  if  in  Boston,  the  police  commissioner,  unless  he  has  secured  a 
release  as  provided  in  the  preceding  section.  Such  notice  shall  contain 
all  the  information  required  by  law  to  be  set  forth  in  an  application  for  8 
the  registration  of  motor  vehicles  in  the  commonwealth,  with  the  names  9 
and  addresses  of  the  vendor  and  vendee.  10 


Police 
authorities 
may  enter 
licensed 
premises. 
1919.259,  §  5; 
350,  §§  111, 
115. 


Section  66.  The  police  commissioner  in  Boston,  the  chief  of  police 
of  any  other  city,  the  selectmen  of  a  town  or  any  police  officer  authorized 
by  them,  or  an  agent  or  inspector  of  the  registrar  may  at  any  time  enter 
upon  any  premises  used  by  any  person  hcensed  imder  se<.-tion  fifty-nine 
for  the  purpose  of  carrying  on  his  licensed  business,  ascertain  how  he  con- 
ducts the  same,  and  examine  all  second  hand  motor  vehicles  or  parts 
thereof  kept  or  stored  in  or  upon  the  premises,  and  all  books,  papers  and 
inventories  relating  thereto. 


Penalty  for 
refusal  to 
allow  entry, 

ig'i'g,  259,  s  6. 


Section  67.    A  licensee  under  section  fifty-nine,  or  a  clerk,  agent  or  1 

other  person  in  charge  of  the  licensed  premises,  who  refuses  to  admit  2 

thereto  an  officer  authorized  to  enter  the  same,  or  who  fails  to  exhibit  to  3 

him  on  demand  all  such  motor  vehicles,  parts  thereof,  and  books,  papers  4 

and  inventories  relating  thereto,  and  any  person  who  \\-ilfully  hinders,  5 

obstructs  or  prevents  such  officer  from  entering  the  premises  or  from  6 

making  the  examination  authorized  in  the  preceding  section,  shall  be  7 

punished  by  a  fine  of  not  more  than  two  hundred  dollars  or  by  imprison-  8 

ment  for  not  more  than  one  year,  or  both.  9 


Chap.  140.]  licenses.  1425 

1  Section  68.     Whoever,  not  being  licensed,  carries  on  the  business  Penalty  tor 

2  for  wliich  a  hcense  is  required  by  section  fifty-seven,  or  is  concerned  wittout 

3  therein,  or,  being  Hcensed,  carries  on  such  business  or  is  concerned  therein  isii^^g,  §  7. 

4  in  any  other  place  or  manner  than  that  designated  in  his  hcense,  or  after 

5  notice  to  liim  that  his  hcense  has  been  revoked  or  suspended,  shall  be 

6  punished  by  a  fine  of  not  more  than  one  hundred  dollars. 

1  Section  69.    Whoever  violates  any  provision  of  sections  fifty-seven  to  Penalties  for 

2  sixty-eight,  inclusive,  or  any  rule  or  regulation  made  by  the  registrar  ruSJ! 

3  under  section  sixty,  unless  another  penalty  not  including  the  revocation  Mof'^'ni^.'^' 

4  of  a  license  is  prescribed  in  sections  fifty-seven  to  sixty-eight,  inclusi\'e,  'i^- 

5  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by 

6  imprisonment  for  not  more  than  one  year,  or  both. 

PAWNBROKERS. 

1  Section  70.    The  police  commissioner  of  Boston,  the  license  com-  Licenses. 

2  mission  of  Lowell,  the  aldermen  of  any  other  city,  or  the  selectmen  of  a.^tsi!^^^' 

3  any  town,  if  ordinances  or  by-laws  therefor  have  been  adopted  in  such  isTe^'m, 

4  city  or  town,  may  license  suitable  persons  to  carry  on  the  business  of  \l^^  |^  ^  j 

5  pawnbrokers  in  such  city  or  town,  subject  to  sections  two  hundred  and  ^^gJi/^gO^'  \'^^- 

6  two  to  two  hundred  and  five,  inclusive,  and  may  revoke  such  Ucenses  at  R.  l.  102!  §  33. 

7  pleasure.  1902,  is7,  §  5.  1906. 291.  §  10.  i909, 221. 

1911,  645.  189  Mass.  70.  206  Mass.  430. 

1  Section  71.    Articles  deposited  in  pawn  with  a  licensed  pawnbroker  PawBbrokers 

2  shall,  unless  redeemed,  be  retained  by  him  on  the  premises  occupied  artuieslour 

3  by  him  for  his  business  for  at  least  four  months  after  the  date  of  deposit,  isra,  ioCli. 

4  if  not  of  a  perishable  nature;  and,  if  perishable,  for  at  least  one  month  fs^,324.^^^' 

5  after  said  date.    After  such  date,  he  may  sell  the  same  by  public  auction,  fg/^^^'  \q^- 

6  apply  the  proceeds  thereof  in  satisfaction  of  the  debt  or  demand  and  the 

7  expense  of  the  notice  and  sale,  and  pay  any  surplus  to  the  person  enti- 

8  tied  thereto  on  demand.    No  article  taken  in  pawn  by  such  pawnbroker 

9  exceeding  twenty-five  dollars  in  value  shall  be  disposed  of  otherwise 

10  than  as  above  provided,  any  agreement  or  contract  between  the  parties 

11  thereto  to  the  contrary  notwithstanding.    Articles  of  personal  apparel 

12  shall  not  be  deemed  to  be  of  a  perishable  nature  within  the  meaning  of 

13  this  section. 

1  Section  72.     The  authorities  which  issue  such  licenses  may  fix  the  Rate  of 

2  rate  of  interest  which  such  pawnbrokers  may  recei\'e  on  loans,  and  may  be  limited. 

3  fix  diiTerent  rates  which  may  be  received  for  difi'erent  amounts  of  money  p's.'io27§34, 

4  lent;   and  no  licensed  pawnbroker  shall  charge  or  receive  a  greater  rate  l*op'. a" g.^om. 

5  of  interest  than  that  so  fixed.    Any  such  pawnbroker  who  violates  any 

6  provision  of  this  or  the  preceding  section  shall  be  punished  by  a  fine  of 

7  not  more  than  fifty  dollars. 

1  Section  73.    The  chief  of  police  of  a  city,  the  selectmen  of  a  town,  oiBaers  may 

2  any  officer  authorized  by  either  of  them,  or  a  state  police  officer  may  broiicra shop, 

3  at  any  time  enter  upon  any  premises  used  by  a  licensed  pawnbroker  for  fsT?.  iss,  §  i. 

4  the  purposes  of  his  business,  ascertain  how  he  conducts  his  business,  igfs,  243.^  '^^' 

5  and  examine  all  articles  taken  in  pawn  or  kept  or  stored  in  or  upon  said  ^-  ^-  'o^.  §  36. 

6  premises  and  all  books  and  inventories  relating  thereto.     Every  such 

7  pawnbroker,  his  clerk,  agent,  servant  or  other  person  in  charge  of  the 


1426 


LICENSES. 


[Chap.  140. 


premises  shall  exhibit  to  such  officer  on  demand  any  or  all  of  such  articles,     8 
books  and  inventories.  9 


Penalty  for 
refusing  to 
admit  officer. 
1877,  1S5,  §  2. 
P.  S.  102,  §  36. 
R.  L.  102,  §  37. 


wSection  74.     A  licensed  pawnbroker,  clerk,  agent  or  other  person  in  1 

charge  of  such  premises  who  refuses  to  admit  thereto  an  officer  authorized  2 

to  enter  the  same,  or  who  fails  to  exhibit  to  him  on  demand  all  such  3 

articles,  books  and  inventories,  and  any  person  who  wilfully  hinders,  4 

obstructs  or  prevents  such  officer  from  entering  the  premises  or  from  5 

making  the  examination  authorized  in  the  preceding  section,  shall  be  6 

punished  by  a  fine  of  not  more  than  two  hundred  dollars  or  by  imprison-  7 

ment  for  not  more  than  one  year,  or  both.  8 


Penalty  for 
acting  without 
license. 
1855,  121, 
§§3,4. 
G.  S.  88, 
P.  S.  102. 
R.  L.  102, 


30. 
I  37. 
38. 


197  Mass.  107. 


Section  75.     Whoever,  not  being  licensed,  carries  on  such  business  1 

or  is  concerned  therein  within  such  town,  or,  being  licensed,  carries  on  2 

such  business  or  is  concerned  therein  in  any  other  place  or  manner  than  3 

that  designated  in  his  license  or  after  notice  to  him  that  his  license  has  4 

been  revoked  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars.  5 


Loans  on 
personal 
property 
regulated. 
1895,  497,  §  1. 
R.  L.  102,  §  39. 
176  Mass.  290. 
206  Mass.  430. 

Penalty,  §  82. 


Section  76.    No  person  shall,  in  any  city  or  in  any  town  of  ten  1 

thousand  or  more  inhabitants,  engage  in  or  carry  on  the  business  of  2 

loaning  money  upon  mortgages,  deposits  or  pledges  of  wearing  apparel,  3 

jewelry,  ornaments,  household  goods  or  other  personal  property,  or  of  4 

purchasing  such  property  on  condition  of  selling  it  back  again  at  a  stip-  5 

ulated  price,  unless  he  is  licensed  as  a  pawnbroker;  but  this  and  the  six  6 

following  sections  shall  apply  only  if  such  property  is  deposited  with  the  7 

lender,  and  shall  not  apply  to  loans  made  upon  stock,  bonds,  notes  or  8 

other  written  evidences  of  ownership  of  property  or  of  indebtedness  to  9 

the  holder  or  owner  of  any  such  securities.  10 


Fee  for  license. 
1895,  497.  §  2. 
R.  L.  102,  §  40. 
1905,  415. 


Section  77.     The  fee  for  a  license  as  a  pawnbroker  or  renewal  thereof  1 

shall  be  fifty  dollars,  but  if  a  license  is  issued  on  or  after  November  first  2 

in  any  year  the  fee  shall  be  twentj--five  dollars.    The  licensee  shall,  at  3 

the  time  of  ^ecei^•ing  such  license,  file  with  the  authorities  who  issue  the  4 

license  a  bond  to  such  city  or  town,  in  the  sum  of  three  hundred  dollars,  5 

with  two  sureties  approved  by  such  authorities,  and  conditioned  for  the  6 

faithful  performance  of  the  duties  and  obligations  pertaining  to  the  7 

business  so  licensed.  8 


Regulations. 
1895,  497,  §  3. 
R.  L.  102,  S41. 
1911,727.  §21. 
4  Op.  A.  G.  562. 

Penalty,  §  82. 


Section  78.     The   authorities   who   grant   licenses   to  pawnbrokers  1 

shall  establish  regulations,  to  the  satisfaction  of  the  commissioner  of  2 

banks,  relative  to  the  business  carried  on  and  the  rate  of  interest  to  be  3 

charged  by  them,  and  a  pawnbroker  shall  not  charge  or  receive  upon  any  4 

loan  a  greater  rate  of  interest  than  that  fixed  by  the  licensing  authorities.  5 


Pawnbrokers 
to  keen  record 
of  pledges,  etc. 
1895,  497,  §  4. 
R.  L.  102,  §  42. 
1907,  211,  §  1. 
197  Mass.  218. 

Penalty,  §  82. 


Section  79.    Every  pawnbroker  shall  keep  a  book  in  which,  at  the  1 

time  of  making  a  loan,  shall  be  legibly  written  in  the  English  language  2 

an  account  and   description,   including   all   distinguishing  marks  and  3 

munbers,  of  the  articles  pawned,  the  amount  of  money  loaned  thereon,  4 

the  time  of  pawning  them,  the  rate  of  interest  to  be  paid  on  such  loan,  5 

and  the  name  and  residence  of  the  person  pawning  such  articles,  and  6 

shall  furnish  a  correct  record  of  such  transactions,  containing  all  such  7 

information,  once  a  week,  or  oftener  if  required,  to  the  licensing  authori-  8 

ties  or  to  any  person  designated  by  them.  9 


Chap.  140.]  licenses.  1427 

1  Section  80.    Every  such  pawnbroker  shall,  at  the  time  of  making  Memorandum 

2  such  loan,  deliver  to  the  person  who  pawns  any  article  a  memorandum  i895f497r§  5. 

3  or  note  signed  by  him  and  containing  the  substance  of  the  entry  required  197  Ma°i'.  o*!.' 

4  by  the  preceding  section.    No  charge  shall  be  made  or  required  by  any  Penaity_  5  52. 

5  pawnbroker  for  such  entry,  memorandum  or  note. 

1  Section  81.    Said  book  shall  at  all  reasonable  times  be  open  to  the  Books  to  be 

2  inspection  of  the  mayor,  of  the  members  of  the  board  of  police,  of  the  spection^" 

3  superintendent  of  police  and  deputy  superintendents,  of  the  chief  inspector  {Us.  sis!    ^' 

4  of  police,  of  anj'  officer  of  the  state  police  or  of  any  person  authorized  by  ^-  ^-  ^°^'  ^  **■ 

5  them  in  writing  for  that  purpose  who  exhibits  such  written  authority  to  Penalty,  §  82. 

6  such  pawnbroker. 

1  Section  82.     Whoever  violates  any  provision  of  the  six  preceding  Penaity_ 

2  sections  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  r.  l.  102!  §  45. 

3  three  hundred  dollars  or  by  imprisonment  for  not  more  than  two  months, 

4  or  both. 

1  Section  83.     When  a  licensed  pawnbroker  buys  or  takes  in  pawn  any  Record  of 

2  tool  such  as  is  used  by  contractors,  builders  or  mechanics,  he  shall  enter  o"toois,  et?.^ 

3  in  a  book  kept  for  that  purpose  a  description  of  the  same  and  the  amount  ^^°^'  °°°'  ^  ^' 

4  paid  for  or  loaned  upon  the  same,  and  shall  cause  the  person  offering  such 

5  tool  for  sale  or  for  pawn  to  sign  his  name  and  address  therein.     The 

6  pawnbroker  shall  also  write  therein  the  name  and  address  of  the  said 

7  person. 

1  Section  84.     Any  person  thus  offering  any  tool  for  pawn  or  for  sale  Penalty. 

2  who  signs  a  wrong  name  or  address  shall  be  punished  by  a  fine  of  not 

3  more  than  one  hundred  dollars  or  by  imprisonment  for  not  more  than 

4  six  months.     Any  pawnbroker  who  kno^^^ngly  writes  the  wrong  name 

5  or  address  of  a  person  thus  offering  a  tool  for  sale  or  for  pawn,  or  knowingly 

6  permits  the  signing  of  such  wrong  name  or  address,  shall  be  fined  one 

7  hundred  dollars  for  the  first  offence,  and  upon  a  second  offence  his 

8  license  shall  be  revoked,  and  he  shall  not  be  permitted  to  conduct  the 

9  business  of  pawnbroker  in  the  commonwealth  for  one  year. 

1  Section  85.     The  provisions  of  sections  eighty-six  to  one  hundred  and  ofP^enaiif" 

2  twelve,  inclusive,  shall  not  apply  to  licensed  pawnbrokers.  sections. 

1890,  410,  §§  1,  6.  1892,  428,  §6.  1898,  677,  §  U-  R.  L.  102,  §  46. 

LOANS. 

1  Section  86.     Every  person  who  is  engaged  in  the  business  of  making  Loans  on 

2  loans  on  collateral  security  represented  by  household  goods,  wearing  se'urit.v'of 

3  apparel,  watches,  diamonds,  jewelry  or  other  articles  of  personal  use  or  g°ojs''e'tc. 

4  ornament,  or  on  notes  secured  by  pledge  or  mortgage  of  any  such  prop-  ^f""'!""' 

5  erty,  and  with  whom  such  property  is  deposited,  or  who  purchases  such  f.hP--  li^- 

6  property  on  condition  of  selling  it  back  again  at  a  stipulated  price,  or 

7  who  pays  or  advances  money  thereon  under  such  circumstances  that 

8  it  may  be  inferred  from  the  character  of  the  transaction  that  such  prop- 

9  erty  may  afterward  be  redeemed,  shall  keep  a  book  in  which,  for  the 

10  purpose  of  identification,  shall  be  recorded  at  the  time  of  each  loan  or 

11  transaction  a  full  and  accurate  description  of  the  articles  pledged  or 


1428 


LICENSES. 


[Ch.\p.  140. 


deposited,  with  any  designating  numbers  or  marks  and  also  the  name  12 
and  residence  of  the  borrower  or  depositor,  and  each  transaction  shall  be  1.3 
specifically  numbered  in  said  book.  He  shall  also  give  to  each  borrower  14 
or  depositor  a  receipt,  ticket  or  card,  numbered  to  correspond  with  the  1.5 
number  of  the  transaction  on  said  book,  inscribed  with  the  name  of  the  16 
lender,  the  article  pledged,  the  description  of  the  property  as  above  17 
required,  the  name  of  the  borrower  or  depositor,  the  amount  of  the  loan,  18 
the  date  when  made  and  the  date  when  payable.  19 


Record  book 
to  be  open  to 
inspection. 
1890,4]  ft.  §  3. 
R.  L.  102.  §4S. 
1906,291,  §  10. 


Section  87.     Said  book  shall  at  all  times  be  open  to  the  inspection  1 

of  the  police  commissioner  and  of  the  superintendent  and  chief  inspector  2 

of  police  of  Boston,  of  the  commissioner  of  public  safety,  and  of  the  3 

chief  of  police  and  selectmen  of  their  respective  cities  or  towns,  or  of  an  4 

officer  specially  authorized  by  any  of  them  in  A\Titing  for  that  purpose,  who  5 

exhibits  such  written  authority;  and  the  property  described  in  said  book  6 

shall  on  demand  be  exhibited  to  said  officers.  7 


When  articles        SECTION  88.     If  it  appears  to  anv  of  the  officers  mentioned  in  the  1 

pledged  are  to  .  "^  '^  .    ,  i  '•    i    i  i  i     i        i 

be  retained.       prcccdmg  scctiou  that  any  articles  which  have  been  pledged  under  section  2 

R.  l!  102!  §  49.  eighty-six  have  been  stolen,  he  may  give  written  notice  to  the  pledgee  to  3 

hold  such  articles,  and  they  shall  thereafter  be  held  by  the  pledgee  for  4 

sixty  days  unless  said  notice  shall  be  recalled  in  writing  by  the  officer  5 

gi\ing  it,  and  be  subject  to  inspection  and  examination  at  all  reasonable  6 

times;  and  they  shall  be  produced,  upon  notice  or  summons  by  the  district  7 

attorney  or  other  prosecuting  officer,  before  any  court  or  grand  jury  if  8 

the  question  of  the  larceny  of  the  same  is  under  in^■estigation,  and  said  9 

pledgee  shall  not  be  liable  in  damages  or  otherwise  on  account  of  such  10 


detention. 


11 


Penalty  for 
refusing 
inspection,  etc. 
1890,410,  §  4. 
R.  L.  102,  §  50. 


Section  89.     Every  person  engaged    in   the   business  mentioned  in  1 

section  eighty-six,  his  agent  or  other  person  in  charge  thereof,  who  fails  2 

or  refuses  to  allow  the  inspection  of  the  book,  or  who  wilfully  hinders,  3 

obstructs  or  prevents  said  officers  from  inspecting  the  book  or  examining  4 

the  property  as  provided  in  section  eighty-seven,  or  who  wilfully  violates  5 

any  other  pro\"ision  of  the  three  preceding  sections,  shall  be  punished  by  a  6 

fine  of  not  more  than  two  hundred  dollars  or  by  imprisonment  for  not  7 

more  than  one  year,  or  both.  8 


Loans  of  less 
than  one 
thousand 
dollars. 
1888,  388. 
1892,  428.  §  1. 
R.  L.  102,  §  51. 
148  Mass.  231. 
160  Mass.  237. 
163  Mass.  322. 
163  Mass.  258. 
170  Mass.  517. 
208  Mass.  84. 
211  Mass.  72. 
217  Mass.  144. 


Section  90.  A  loan  of  less  than  one  thousand  dollars  shall  be  dis-  1 
charged  upon  payment  or  tender  by  the  debtor  of  the  principal  sum  2 
actually  borrowed,  with  interest  at  the  rate  of  eighteen  per  cent  per  3 
annum  from  the  time  said  money  was  borrowed,  and  a  sum  not  exceeding  4 
five  dollars  for  the  actual  expenses  of  making  and  securing  the  loan;  but  5 
the  lender  shall  be  entitled  to  interest  for  six  months  at  said  rate  if  the  6 
debt  is  paid  before  the  expiration  of  that  period.  All  payments  in  excess  7 
of  said  rate  shall  be  applied  to  the  discharge  of  the  principal,  and  the  8 
borrower  shall  be  obliged  to  pay  or  tender  only  the  balance  of  the  principal  9 
and  interest,  at  said  rate,  due  after  such  application.  This  section  shall  10 
not  affect  any  loan  made  at  a  less  rate  than  eighteen  per  cent  per  annum,  11 
nor  shall  it  affect  so  much  of  section  three  of  chapter  one  hundred  and  12 
seven  as  provides  that  if  there  is  no  agreement  for  a  different  rate  the  13 
interest  of  money  shall  be  at  the  rate  of  sLx  dollars  upon  each  hundred  14 
dollars  for  a  year.  15 


Chap.  140.]  licenses.  1429 

1  Section- 91.     If  a  loan  of  less  than  one  thousand  dollars  is  secured  Loans  secured 

2  by  a  mortgage  or  pledge  of  personal  property,  the  mortgagee  or  pledgee  is92, 428,'  §  2/ 

3  shall  discharge  such  mortgage  and  restore  such  pledge  upon  payment  t7o  Mass',  si?.' 

4  or  tender  to  him  of  the  amount  legally  due  under  the  preceding  section,  '°^  '^'''''^  ^*' 

5  and  such  payment  or  tender  may  be  made  by  the  debtor  or  by  a  person 

6  having  an  interest  in  the  property  mortgaged  or  pledged. 

1  Section  92.     A  mortgage  of  household  furniture  on  which  interest  Loan  on 

2  is  charged  at  the  rate  of  eighteen  per  cent  or  more  per  annum,  made  to  household 

3  secure  a  loan  of  less  than  one  thousand  dollars,  shall  not  be  valid  unless  1892'  42s,  §  3. 

4  it  states  with  substantial  accuracy  the  amount  of  the  loan,  the  time  for  fds^iTss'.  lo^i*' 

5  which  the  loan  is  made,  the  rate  of  interest  to  be  paid,  and  the  actual  \g1  ^{m-  '^? 

6  expense  of  making  and  securing  the  loan,  nor  unless  it  contains  a  pro\-ision  i^*  Mass.  315. 

7  that  the  debtor  shall  be  notified,  in  the  manner  provided  in  section  five 

8  of  chapter  two  hundred  and  fifty-five,  of  the  time  and  place  of  any  sale 

9  to  be  made  in  foreclosure  proceedings  at  least  seven  days  before  such 
10  sale. 

1  Section  93.     A  notice  of  intention  to  foreclose  a  mortgage  of  per-  Notice  to 

2  sonal  property  given  to  secure  loans  of  less  than  one  thousand  dollars,  i'802,'428,  §  t. 

3  under  sections  five  and  eight  of  chapter  two  hundred  and  fifty-five,  shall  23/'m°ss'.  I57.' 

4  not  be  \'alid  unless  it  expressly  states  where  such  notice  is  to  be  recorded, 

5  and  that  the  right  of  redemption  will  be  foreclosed  sixty  days  after  such 

6  recording. 

1  Section  94.    Whoever  refuses  or  neglects,  after  request,  to  discharge  Liability  for 

2  a  mortgage  or  to  restore  the  property  held  as  a  pledge,  as  provided  in  discharge 

3  section  ninety-one,  shall  be  liable  in  tort  to  the  borrower  for  all  damages  ™892.*|28!  §  5. 

4  resulting  to  him  from  any  violation  of  said  section.         R  l.  102,  §  55. 

1  Section  95.    The  five  preceding  sections  shall  not  apply  to  any  loan  Application  of 

2  of  three  hundred  dollars  or  less  made  by  a  person  who  holds  a  license  seclioIS^^  '°^ 

3  under  sections  ninety-six  to  one  hundred  and  thirteen,  inclusive,  nor  af-  Jig";  til'.  |  a. 

4  feet  section  seventy-two  of  this  chapter  or  section  four  of  chapter  two  ^^l'  HI]  |  Ig 

5  hundred  and  fifty-five. 

1  Section  96.     No  person  shall  directly  or  indirectly  engage  in  the  Licenses  for 

2  business  of  making  loans  of  three  hundred  dollars  or  less,  if  the  amount  nmk"iirsniaii 

3  to  be  paid  on  any  such  loan  for  interest  and  expenses  exceeds  in  the  Iggs!  577,  s  1. 

4  aggregate  an  amount  equivalent  to  twelve  per  cent  per  annum  upon  the  f^^-  ,;q|'  |  j ''• 

5  sum  loaned,  without  first  obtaining  from  the  commissioner  of  banks,  JgJi'OTg'l?' 

6  in  sections  ninety-six  to  one  hundred  and  fourteen,  inclusi\'e,  called  the  wiai  347!  §  T. 

_  .      .  ',.  ^  ,  •  1    1         •  •       ji        j_  1  176  Mass.  19. 

7  commissioner,  a  license  to  carry  on  the  said  business  in  the  town  where  223  Mass.  311. 

8  the  business  is  to  be  transacted.     When  an  application  for  a  loan  or  for    """ '  '^^ 

9  an  endorsement  or  guarantee  or  for  the  purchase  of  a  note  is  made  by  ^<'°"">''  5 103. 

10  any  person  within  this  commonwealth,  and  the  money  is  advanced  or  the 

11  endorsement  or  guarantee  is  made  or  furnished  by  any  person  without 

12  this  commonwealth,  the  transaction  shall  be  deemed  a  loan  made  within 

13  this  commonwealth,  and  such  a  loan  and  the  parties  making  it  shall  be 

14  subject  to  sections  ninety-six  to  one  hundred  and  thirteen,  inclusive.     The 

15  buying  or  endorsing  of  notes  or  the  furnishing  of  guarantee  or  security  for 
IG  compensation  shall  be  considered  to  be  engaging  in  the  business  of  making 

17  small  loans  within  said  sections.     In  prosecutions  under  said  sections, 

18  the  amount  to  be  paid  upon  any  loan  of  three  hundred  dollars  or  less  for 


1430 


LICENSES. 


[Chap.  140. 


Regulations. 
Investigations. 
1S98,  577,  §  5. 
R.  L.  102,  §  01. 
1908,  605.  §  2. 
1911,  727,  S  4. 
1919,  350,  §  49. 

Penalty,  §  103. 


interest  or  expenses  shall  include  all  sums  paid  or  to  be  paid  by  or  on  be-  19 
half  of  the  borrower  for  interest,  brokerage,  recording  fees,  commissions,  20 
services,  extension  of  loan,  forbearance  to  enforce  payment,  and  all  other  21 
sums  charged  against  or  paid  or  to  be  paid  by  the  borrower  for  making  or  22 
securing  directly  or  indirectly  the  loan,  and  shall  include  all  such  sums  23 
when  paid  by  or  on  behalf  of  or  charged  against  the  borrower  for  or  on  24 
account  of  making  or  securing  the  loan,  directly  or  indirectly,  to  or  by  25 
any  person,  otlier  than  the  lender,  if  such  payment  or  charge  was  known  26 
to  the  lender  at  the  time  of  making  the  loan,  or  might  ha\'e  been  ascer-  27 
tained  by  reasonable  inquiry.  Any  person  directly  or  indirectly  engag-  28 
ing  in  the  business  of  negotiating,  arranging,  aiding  or  assisting  the  bor-  29 
rower  or  lender'  in  procming  or  making  loans  of  three  hundred  dollars  or  30 
less,  for  which  the  amount  paid  or  to  be  paid  for  interest  and  expenses,  31 
including  all  amounts  paid  or  to  be  paid  to  any  other  party  therefor,  32 
exceeds  in  the  aggregate  an  amount  equivalent  to  twelve  per  cent  per  33 
annum,  whether  such  loans  are  actually  made  by  such  person  or  by  an-  34 
other  party,  shall  be  deemed  to  be  engaged  in  the  business  of  making  35 
small  loans,  and  shall  be  subject  to  sections  ninety-six  to  one  hundred  36 
and  twelve,  inclusive.  37 

Section  97.     The  commissioner  shall   from  time  to  time  establish  1 

regulations  respecting  the  granting  of  licenses  and  the  business  carried  2 

on  by  the  licensees,  and  by  loan  companies  and  associations  established  3 

by  special  charter.    He  shall  either  personally  or  by  such  assistants  as  4 

he  may  designate,  at  least  once  a  year  and  oftener  if  he  deems  it  neces-  5 

sary,  investigate  the  affairs  of  such  licensees,  companies  and  associations,  6 

and  for  that  purpose  shall  have  free  access  to  the  vaults,  books  and  7 

papers  thereof,  and  shall  ascertain  the  condition  of  the  business  and  8 

whether  it  has  been  transacted  in  compliance  with  the  law  and  the  regu-  9 

lations  made  hereunder.     The  commissioner  may  cause  an  examination  10 

of  the  said  books  and  business  to  be  made  by  an  accountant  whom  he  11 

may  select,  and  the  cost  of  any  such  examination  shall  be  paid  b\'  the  12 

person  whose  books  are  so  examined.  13 


Returns  to 
commissioner. 

1911,  727, 
5§  1,  5. 

1912,  675,  I  1. 

Penalty,  §  103. 


Examination 
of  licensees. 
1911,727,  §6. 


Section  98.  All  persons  required  by  sections  ninety-six  to  one  hun- 
dred and  fourteen,  inclusiA'c,  to  be  under  the  supervision  of  the  com- 
hiissioner  shall  annually  on  November  first  make  a  return  to  him  in 
the  form  of  a  trial  balance  of  theh  books  at  the  close  of  business  on 
September  thhtieth  preceding,  and  shall  specify  the  different  kinds  of 
liabilities  and  the  different  kinds  of  assets,  ^\•ith  such  other  mformation 
as  may  be  called  for  by  the  commissioner  in  accordance  with  a  blank  form 
to  be  furnished  by  him.  The  commissioner  shall  make  an  annual  report 
and  shall  forward  therewith  a  copy  of  such  returns  or  so  much  thereof 
as  he  may  deem  necessary. 

Section  99.  The  commissioner  may  summon  said  licensees,  com- 
panies or  associations,  or  any  of  their  agents  or  employees,  and  such 
other  witnesses  as  he  deems  necessary,  and  examine  them  relative  to 
their  transactions  and  to  the  condition  of  their  business,  and  for  that 
purpose  may  administer  oaths.  Whoever  without  justifiable  cause  re- 
fuses to  appear  and  testify  when  so  required,  or  obstructs  the  commis- 
sioner or  his  representatives  in  the  performance  of  their  duties,  shall  be 
punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  impris- 
onment for  not  more  than  six  months,  or  both. 


1 
2 
3 

4 
5 
6 
7 
8 
9 
10 

1 
2 

o 
O 

4 
5 
6 

7 
8 
9 


Ch.\P.    140.]  LICENSES.  1431 

1  Section  100.     He  shall  establish  tlie  rate  of  interest  to  be  collected,  ?^!*^  °[ 

interest, 

2  and  in  fixing  said  rate  shall  have  due  regard  to  the  amount  of  the  loan,  isas.  577.  §  s. 

3  and  the  nature  of  the  security,  and  the  time  for  which  the  loan  is  made;  i90s,'605,'  §2.' 

4  but  the  total  amount  to  be  paid  on  any  loan  for  interest  and  expenses  1916!  224!  ^  ' 

5  shall  not  in  the  aggregate  exceed  an  amount  equi\-alent  to  three  per  cent  penalty,  §  10a 

6  a  month  on  the  amount  actually  received  by  the  borrower,  computed 

7  on  unpaid  balances;   and  no  licensee  or  company  or  association  to  which 

8  sections  ninety-six  to  one  hundred  and  twelve,  inclusive,  apply  shall 

9  charge  or  recei\'e  upon  any  loan  a  greater  rate  of  interest  than  that  fixed 

10  by  the  commissioner.     No  charge,  bonus,  fee,  expense  or  demand  of  any 

11  nature  whatsoever,  except  as  above  provided,  shall  be  made  upon  loans 

12  to  which  said  sections  relate.  , 

1  Section  101.     Licenses  granted   by  the  commissioner  sli^ll   be  for  Term  and 

2  a  period  of  one  year  from  October  first.     Each  license  shall  plainly  state  ikeSse. 

3  the  name  of  the  licensee,  and  the  city  or  town,  with  the  name  of  the  street,  i9n'"727,  §  g. 

4  and  the  nimiber,  if  any,  of  the  place  where  the  business  is  to  be  carried 

5  on,  and  shall  be  posted  in  a  conspicuous  place  in  the  office  where  the 

6  business  is  transacted. 

1  Section  102.     The  fee  for  all  licenses  granted  under  section  ninety-  Fees. 

2  six  shall  be  not  less  than  one  hundred  dollars.     If  the  licensee  desires  ^^^^'  ^''^^^ 

3  to  carry  on  business  at  more  than  one  place  he  shall  procure  a  license 

4  for  each  place  where  the  business  is  to  be  conducted. 

1  Section  103.     Anv  person  violating  anv  provision  of  sections  ninety-  Pemity  for 

.  .  .    ,         .  •    ,^    .  ,  1         'i       1  1      •  violation  of 

2  six  to  ninety-eight,  inclusive,  and  one  hundred  to  one  hundred  and  nine,  }?«•  by 

3  inclusive,  or  any  regulation  made  thereunder,  or  any  rule  or  order  made  isqs,  577.  §  10. 

4  by  the  commissioner,  shall  be  subject  to  a  fine  of  not  more  than  fiAe  wo». ml'. 

5  hundred  dollars,  and  the  license  may  be  suspended  or  revoked  by  the  iIh.t^?,  §  10. 

6  commissioner.    Any  loan  upon  which  a  greater  rate  of  interest  or  expense  223^Ma^ffi'.  Ii^i. 

7  is  charged  or  received  than  is  allowed  by  sections  ninety-six  to  one  hun- 

8  dred  and  eleven,  inclusive,  and  the  regulations  made  thereunder,  may  be 

9  declared  \'oid  by  the  supreme  judicial  or  superior  court  in  equity  upon 
10  petition  by  the  person  to  whom  the  loan  was  made. 

1  Section  104.     A  license  under  section  ninety-six  shall  not  be  granted  Conditions  of 

2  until  the  applicant   has   filed  with  the   commissioner   a  statement  on  license. 

3  oath,  which  in  the  case  of  a  corporation  or  association  may  be  made  by  n^t.  102'.  § ss. 

4  the  president  or  agent  thereof  in  charge  of  the  business,  stating  the  place  '^^''  ^""'  ^  ^'' 

5  in  the  town  where  tlie  business  is  to  be  carried  on,  the  name  and  the  Pe'^a'ty,  §  103. 

6  private  and  business  address  of  the  applicant,  and  in  the  case  of  a  cor- 

7  poration  the  state  under  the  laws  of  which  it  is  organized,  and  the  name 

8  and  private  address  of  the  clerk  or  secretary  and  of  the  agent  or  other 

9  officer  haxing  charge  of  its  proposed  business,  nor  until  the  applicant, 

10  unless  excused  by  the  commissioner,  files  with  him  a  power  of  attorney, 

11  appointing  a  person  satisfactory  to  the  commissioner  to  be  his  attorney, 

12  upon  whom  all  lawful  process  may  be  served  in  any  action  or  proceeding 

13  arising  under  sections  ninety-six  to  one  hundred  and  twelve,  inclusive, 

14  with  the  same  effect  as  if  served  upon  the  licensee.     If  any  change  occurs 

15  in  the  name  or  address  of  a  licensee  or  of  the  clerk,  secretary  or  agent  afore- 

16  said  of  any  licensed  corporation,  or  in  the  place  where  the  licensed  busi- 


1432 


LICENSES. 


[Chap.  140. 


ness  is  carried  on,  or  in  the  membership  of  anj'  partnership  licensed  under  17 

said  sections,  a  true  and  full  statement  of  such  change,  sworn  to  in  the  18 

manner  required  by  this  section  in  the  case  of  the  original  statement,  19 

shall  forthwith  be  filed  with  the  commissioner,  who  may  after  a  hearing  20 

revoke  the  license.  21 


Bond. 

1898,  577,  §  3. 
E.  L.  102.  §  59. 
1911,  727,  5  12. 


Section  105.  No  license  shall  be  issued  under  section  ninety-six  until  1 
the  licensee  gives  to  the  state  treasurer  a  bond  in  the  sum  of  fi\"e  thousand  2 
dollars,  executed  by  the  licensee  and  by  a  surety  company  appro\'ed  by  3 
the  commissioner,  conditioned  upon  the  faithful  performance  by  the  4 
licensee  of  the  duties  and  obligations  pertainmg  to  the  business  so  licensed  5 
and  the  prompt  payment  of  any  judgment  recovered  against  him  or  for  6 
which  he  may  be  liable  under  sections  ninety-six  to  one  hundred  and  7 
eleven,  inclusive,  but  no  suit  at  law  or  in  equity  shall  be  begun  against  8 
the  sureties  on  such  a  bond  within  thirty  days  after  judgment  against  9 
the  licensee.  If  in  any  case  at  law  or  in  equity  against  the  licensee  un-  10 
der  sections  ninety-six  to  one  hundred  and  eleven,  inclusive,  it  appears  11 
that  the  plaintiff  is  entitled  to  judgment  or  decree,  except  for  proceedings  12 
m  bankruptcy  or  insolvency,  or  the  discharge  therein  of  the  licensee,  the  13 
court  may  at  any  time,  on  motion,  enter  a  special  judgment  or  decree  14 
for  the  plaintiff  for  the  amount  of  his  debt,  damages  and  costs,  or  for  15 
such  other  relief  as  he  may  be  entitled  to;  and  the  said  bond  shall  be  16 
conditioned  upon  the  payment  of  any  such  special  judgment  and  upon  17 
compliance  with  any  such  decree.  Whoever  is  aggrieved  by  a  breach  of  18 
the  condition  of  such  a  bond  may  sue  thereon  at  his  own  expense  and  19 
in  his  own  behalf,  but  in  the  name  of  the  obligee;  and  if  judgment  shall  20 
be  entered  for  the  defendant  for  costs,  execution  therefor  shall  issue  21 
against  the  person  for  whose  benefit  the  suit  is  brought,  as  if  he  were  22 
the  plaintiff  of  record,  but  not  against  the  obligee.  In  such  a  suit  like  23 
proceedings  shall  be  had  as  in  a  suit  by  a  creditor  on  an  administration  24 
bond.  The  commissioner  may  at  any  time  require  the  licensee  to  file  25 
an  additional  bond  of  like  nature  and  with  like  effect,  and  to  give  full  26 
information  as  to  all  judgments  recovered  or  suits  pending  on  his  bond.  27 
Upon  failiire  to  file  any  bond  so  required,  the  license  shall  be  revoked.        28 


Recovery  of 
iUegat  interest. 


1911.  727,  §  13 

1912.  675,  §  4 
223  Mass.  311 


Section  106.  If  a  greater  rate  of  interest  or  amount  for  expenses  1 
R^L  io2'|g''  *-^^"  '^  allowed  under  sections  ninety-six  to  one  hundred  and  eleven,  in-  2 
elusive,  has  been  paid  on  any  loan  to  which  said  sections  apply,  the  person  3 
who  paid  it  may  file  a  complaint  with  the  commissioner,  who  may,  after  4 
a  hearing,  order  such  excess  amounts  refunded,  or  may  make  such  other  5 
order  as  he  may  deem  necessary.  The  filing  of  the  complaint  and  the  6 
decision  of  the  commissioner  shall  not  affect  the  right  of  the  complainant  7 
under  section  one  hundred  and  three,  who  may,  in  an  action  of  contract  8 
or  suit  in  equity,  recover  back  the  amount  of  the  unlawful  interest  or  9 
expenses,  with  twice  the  legal  costs,  if  such  action  or  suit  is  brought  within  10 
two  years  after  the  time  of  payment.  11 


as°ec^y'*'"  Section  107.  If  a  loau  to  which  sections  ninety-six  to  one  hundred 
piymTnt^f"'  ^""^  clcven,  inclusivc,  apply  is  secured  by  a  mortgage  or  pledge  of  per- 
1898  577  « 7  ^'^"''^'  property  or  by  an  assignment  of  wages,  the  mortgage  shall  be  dis- 
R.  l'.  102'.  §63.  charged,  the  pledge  restored  or  the  assignment  released  upon  payment  or 
'  tender  of  the  amount  legally  due  under  said  sections;  and  such  payment 
Penalty,  §  103.  ^j.  ^gjj^jgp  jjj^y  {jg  made  by  the  debtor,  by  any  person  duly  authorized  by 


Chap.  140.]  licenses.  1433 

7  him,  or  by  any  person  having  an  interest  in  the  property  mortgaged  or 
S  pledged  or  in  the  wages  assigned.  Whoever  refuses  or  neglects,  upon 
9  request,  to  discharge  a  mortgage,  release  an  assignment  or  restore  a 

10  pledge  to  the  party  entitled  to  receive  the  same,  after  payment  of  the 

11  tlebt  secured  thereby  or  the  tender  of  the  amount  due  thereon  as  afore- 

12  said,  shall  be  liable  in  tort  to  the  borrower  for  all  damages  thereby  sus- 

13  tained  by  him. 

1  Section  108.    A  mortgage  or  pledge  of  personal  property,  or  an  assign-  validity  of 

2  ment  of  or  order  for  wages  or  salary  to  which  sections  ninety-six  to  one  Tms^lii.  §  I'. 

3  hundred  and  eleven,  inclusive,  apply,  shall  not  be  valid  unless  it  states  f^^-  727,'  i  15! 

4  with  substantial  accuracy  the  actual  amount  of  the  loan,  the  time  for  pg^^^y  ^  jos 

5  which  the  loan  is  made,  the  rate  of  interest  to  be  paid,  and  the  expense  of 

6  making  and  securing  the  loan,  if  any;   nor  miless  it  contains  a  provision 

7  that  the  debtor  shall  be  notified,  in  the  manner  provided  in  section  five 

8  of  chapter  two  hundred  and  fifty-five,  of  the  time  and  place  of  any  sale 

9  to  be  made  in  foreclosure  proceedings  at  least  seven  days  before  such 

10  sale.     A  notice  of  intention  to  foreclose  under  the  provisions  of  section 

11  five  or  section  eight  of  chapter  two  hundred  and  fifty-five  shall  not  be 

12  valid  in  such  a  case  unless  it  expressly  states  where  such  notice  is  to  be 

13  recorded,  and  that  the  right  of  redemption  will  be  foreclosed  sixty  days 

14  after  such  recording.     At  any  time  after  twenty  days  from  the  date  of 

15  any  such  mortgage,  if  the  same  has  not  been  recorded  the  holder  thereof 

16  shall  forthwith,  on  demand  and  payment  or  tender  of  one  dollar,  give  to 

17  the  mortgagor  or  any  person  interested  in  the  mortgaged  property  a 
IS  copy  of  the  mortgage  and  of  the  note  or  other  obligation  secured  thereby, 
19  which  such  holder  shall  certify  to  be  a  true  copy  thereof. 

1  Section  109.     If  a  payment  is  made  on  account  of  a  loan  to  which  sec-  Receipt  for 

2  tions  ninety-six  to  one  hundred  and  eleven,  inclusive,  apply,  the  person  i'89S,''577?r9. 

3  who  receives  the  payment,  or  his  pnncipal,  shall,  when  the  payment  is  {ga;  727,' |  le! 

4  taken,  give  to  the  person  paying  a  receipt  setting  forth  the  amount  then 

5  paid  and  the  amount  previously  paid,  and  identifying  the  loan,  note, 

6  mortgage  or  assignment  to  which  it  is  to  be  applied. 


Penalty,  §  103. 


•J25  Mass.  448. 


1  Section  110.     Whoever,  not  being  duly  licensed  as  provided  in  sec-  Penalty  for 

2  tion  ninety-six,  on  his  own  account  or  on  account  of  any  other  person  not  Sheens™.' 

3  so  licensed,  engages  in  or  carries  on,  directly  or  indirectly,  either  sepa-  jj^^f'  102,  |  m. 

4  rately  or  in  connection  with  or  as  a  part  of  any  other  business,  the  business  }g}',;  y^^;  1 1''- 

5  of  making  loans  or  buying  notes  or  furnishing  endorsements  or  guarantees,  {^g^j'^^gg'  \^' 

6  to  which  sections  ninety-six  to  one  hundred  and  eleven,  inclusive,  apply,  218  Mass.  306. 

7  shall  be  punisJied  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  223  Mass.  311! 

8  imprisonment  for  not  more  than  two  months,  or  both.    Any  loan  made 

9  or  note  purchased  or  endorsement  or  guarantee  furnished  by  an  un- 

10  licensed  person  in  violation  of  said  sections  shall  be  void.    In  prosecutions 

11  under  said  sections  the  fact  that  the  defendant  has  made  or  assisted  in 

12  the  making  of  two  or  more  loans  of  three  hundred  dollars  or  less,  upon 

13  which  there  has  directly  or  indirectly  been  paid  or  charged,  for  interest, 

14  brokerage,  recording  fees,  commissions,  services,  extension  of  loan,  for- 

15  bearance  to  enforce  payment  or  other  expenses,  a  sum  which  exceeds  in 

16  the  aggregate  an  amount  equivalent  to  twelve  per  cent  per  annum  upon 

17  the  amount  actually  received  by  the  borrower,  whether  such  sum  has  been 

18  paid  to  or  charged  by  the  defendant  or  paid  to  or  charged  by  any  other 


1434 


LICENSES. 


[ClL\P.    140. 


person,  shall  be  prima  facie  evidence  that  the  defendant  has  engaged  in  19 
and  carried  on  the  business  of  making  loans  to  which  sections  ninety-six  20 
to  one  hundred  and  twelve,  inclusive,  apply.  21 


Section  111.    Sections  ninety-six  to  one  hundred  and  eleven,  inclu- 


Law  as  to  rate 
of  interest  in 

agreement  not    sive,  shall  not  affcct  SO  much  of  section  three  of  chapter  one  hundred  and 
ifgs'sy?  §  u   seven  as  provides  that,  if  there  is  no  agreement  for  a  different  rate,  the 
fan  -2-'  t  IS  ^^^terest  on  money  shall  be  at  the  rate  of  six  dollars  upon  each  one  hun- 
dred dollars  for  a  year. 


°at"poUce,  Section  112.    The  state  police  and  the  police  of  the  cities  or  towns  1 

«*<=  -       shall  carry  out  the  directions  of  the  commissioner  in  enforcing  sections  2 

ninety-six  to  one  hundred  and  thirteen,  inclusive,  and  any  regulations  3 

made  by  him.  4 


1911,  727,  §  2. 


S'ay^be"d??          SECTION  113.    Rctums  made  to    the    commissioner  under  section  1 

me^m         ninety-eight  may  be  destroyed  or  disposed  of  by  his  order  after  the  lapse  2 

of  three  years  from  the  date  of  their  receipt,  and  any  proceeds  received  3 

in  the  course  of  their  disposal  shall  be  paid  to  the  commonwealth.  4 


Certain 
associations 
need  not  pro- 
cure licenses. 
1899,  261. 
R.  L.  102,  §  6S. 
1909,  27S,  §  1. 
1911,  727,  §  19. 


Section  114.    Loan   companies    and   loan    associations    established  1 

by  special  charter,  and  fraternal  mutual  benefit  societies  the  member-  2 

ship  of  which  is  limited  to  the  employees  of  any  one  person  and  which  3 

make  loans  to  its  members  only,  shall  be  subject  to  the  supervision  of  the  4 

commissioner,  but  need  not  procure  a  license.  5 


Licenses. 

1845.  197,  §1  1. 

5.  10. 

1S4B,  96, 

§§  1,  3. 

G.  S.  88,  §§  33, 

34. 

P.  S.  102,  §§  40, 

41. 

R.  L.  102,  §  73. 

1  Allen,  137. 

140  Mass.  106, 

109,  594. 

160  Mass.  391. 

175  Mass.  357. 


STEAM   ENGINES   AND   FURNACES. 

Section  115.  A  furnace  for  melting  iron  or  making  glass,  or  a  sta-  1 
tionary  steam  engine  for  use  in  a  mill  for  planing  or  sa'u'ing  boards  or  2 
turning  wood  or  in  which  other  fuel  than  coal  is  used  to  create  steam,  3 
shall  not  be  erected  or  put  up  to  be  used  in  a  town  which  accepts  this  4 
and  the  two  following  sections  or  has  accepted  corresponding  provisions  5 
of  earlier  laws,  unless  the  aldermen  or  selectmen  thereof  ha\'e  granted  a  6 
license  therefor,  prescribing  the  place  where  the  building  shall  be  erected  7 
in  which  the  steam  engine  or  furnace  is  to  be  used  and  the  materials  and  8 
construction  thereof,  and  have  made  such  regulations  as  to  the  Jieight  9 
of  flues  and  protection  against  fire  as  they  deem  necessary  for  the  safety  10 
of  the  neighborhood.  Such  license  may  be  granted  on  a  written  appli-  11 
cation,  and  shall  be  recorded  in  the  town  records.  The  aldermen  or  select-  12 
men  shall  assign  a  time  and  place  for  a  hearing  upon  such  application,  and  13 
cause  at  least  fourteen  days'  public  notice  thereof  to  be  gi\"en,  at  the  ex-  14 
pense  of  the  applicant,  in  such  manner  as  they  may  order.  15 


Changes  in 

furnaces,  etc., 

erected  before 

acceptance 

of  law. 

1845,  197,  §§  2, 

10. 

G.  S.  88,  §  35. 

P.  S.  102.  §42. 

R.  L.  102,  §  74. 


Section  116.     In  a  town  which  accepts  this  section  or  has  accepted  1 

corresponding  provisions  of  earlier  laws,  the  aldermen  or  the  selectmen,  2 

after  due  notice  in  writing  to  the  owner  of  such  steam  engine  or  furnace,  3 

except  for  making  glass,  erected  or  in  use  therein  before  the  time  of  4 

such  acceptance  and  a  hearing,  may  adjudge  it  to  be  dangerous  or  a  5 

nuisance  to  the  neighborhood,  and  make  and  record  an  order  prescribing  6 

such  rules,  restrictions  and  alterations  as  to  the  building  in  which  it  is  7 

constructed  or  used,  the  construction  and  height  of  its  smoke  flues,  and  8 

such  other  regulations  as  they  deem  necessary  for  the  safety  of  the  neigh-  9 

borhood;  and  the  town  clerk  shall  deliver  a  copy  of  such  order  to  a  con-  10 


Chap.  140.]  licenses.  1435 

11  stable,  who  shall  serve  on  the  owner  an  attested  copy  thereof,  and  make 

12  return  of  his  doings  thereon  to  said  clerk  within  three  days  after  the  de- 

13  livery  thereof  to  him. 

1  Section  117.     An  owner  of  a  steam  engine  or  furnace  who  is  aggrieved  fsTs^^ig? 

2  by  such  order  may  have  the  remedy  prescribed  by  section  two  of  chap-  |,5  |-|g  ^^  36- 

3  ter  one  hundred  and  thirty-nine.     The  superior  court,  on  granting  the  39. 

4  application  for  a  jury,  may  issue  an  injunction  restraining  the  further  p.  s.'io2.' 

5  use  of  such  engine   or  furnace   until   the  final  determination  of  the  n.  h'loi,  §  75. 

6  application. 

1  Section  118.     In  a  town  which  accepts  this  section  or  has  accepted  stationary 

2  corresponding  provisions  of  earlier  laws,  a  stationary  engine,  propelled  1862,  74. 

3  by  steam  or  other  motive  power,  shall  not  be  erected  or  put  up  for  use  i^.  s!  102.  §  47. 

4  within  five  hundred  feet  of  a  dwelling  house  or  public  building  unless  a  f4o^Mlss.' m' 

5  license  therefor  has  been  first  granted  and  recorded  in  the  manner  pro-  "^' 

6  vided  in  section  one  hundred  and  fifteen. 

1  Section  119.     An  engine  or  furnace  erected  or  used  contrary  to  sec-  Furnaces, 

2  tion  one  hundred  and  fifteen,  one  hundred  and  sixteen  or  one  hundred  Ifec'ted'^OT"*^ 

3  and  eighteen  shall  be  deemed  a  common  nuisance;    and  the  aldermen  nuisances. 

4  or  selectmen  may  remove  the  same  in  the  same  manner  as  boards  of  l^\^g  ^^~'  ^^  ^' 

5  health  may  remove  nuisances  under  sections  one  hundred  and  twenty-  Jf*|'|®' 

6  three  to  one  hundred  and  twenty-five,  inclusive,  of  chapter  one  hundred  g.  s'.  88,  §  40. 

7  and  eleven.  1862,  74,  §  2.  p.  s.  102,  §  4s.  r.  l.  102.  §  77 

1  Section  120.    All  the  powers  and  duties  imposed  by  the  five  preced-  ofP^^e"''"" 

2  ing  sections  on  aldermen,  selectmen  or  town  clerks  shall  be  exercised  by  preceding 

3  the  state  fire  marshal  in  the  cities  and  towns  of  the  metropolitan  fire  lau,  795,  §  5. 

4  prevention  district  as  described  in  section  twenty-eight  of  chapter  one 

5  hundred  and  forty-eight. 

SALE   OF   firearms. 

1  Section  121.     In  sections  one  hundred  and  twenty-two  to  one  hun-  Definitions. 

2  dred  and  twenty-nine,  inclusive,  "firearms"  includes  a  pistol,  revolver  or  Jj'^'  *®^'  ^^ '" 

3  other  weapon  of  any  description,  loaded  or  imloaded,  from  which  a  shot  or 

4  bullet  can  be  discharged  and  of  which  the  length  of  barrel,  not  including 

5  any  revolving,  detachable  or  magazine  breech,  does  not  exceed  twelve 

6  inches;    and  "licensing  board"  means  the  city  councils  of  cities  and 

7  the  selectmen  of  towns.     Said  sections  shall  not  apply  to  antique  fire- 

8  arms  incapable  of  use  as  firearms  nor  to  sales  of  firearms  at  wholesale. 

1  Section -122.    The  licensing  board  in  any  town  may,  in  its  discretion,  Licenses 

2  grant  licenses  to  persons  to  sell,  rent  or  lease  firearms.    Every  such  license  ^^"'  '*^^'  ^  ^' 

3  shall  specify  the  street  and  number,  if  any,  of  the  building  where  the 

4  business  is  to  be  carried  on,  and  the  license  shall  not  protect  a  licensee 

5  who  carries  on  his  business  in  any  other  place. 

1  Section  123.    The  license  shall  be  ex-pressed  to  be  and  shall  be  sub-  Conditions  of 

2  ject  to  the  following  conditions:  First,  That  the  provisions,  in  regard  i9i™495,  §4. 

3  to  the  nature  of  the  license  and  the  building  in  which  the  business  may 

4  be  carried  on  under  it  shall  be  strictly  adhered  to.    Second,  That  every 

5  licensee  shall  before  deliverv  of  a  firearm  make  or  cause  to  be  made  a  true 


1436 


LICENSES. 


[Chap.  140. 


entry  in  a  book  to  be  kept  for  that  purpose,  specifying  the  description  of  6 
the  firearm,  the  make,  number,  whether  single  barrel,  magazine,  revol-  7 
ver,  pin,  rim,  or  central  fire,  whether  sold,  rented  or  leased,  the  date  and  8 
hour  of  such  delivery,  and  the  full  name,  sex,  residence  and  occupation  9 
of  the  pm-chaser,  exchanger  or  hirer.  The  said  book  shall  be  open  at  all  10 
times  to  the  inspection  of  the  licensing  board  and  of  the  police.  Third,  11 
That  the  license  or  a  copy  thereof,  certified  by  the  recording  officer  of  12 
the  licensing  board  or  by  the  clerk  of  the  town  by  which  it  is  issued,  shall  13 
be  displayed  on  the  premises  in  a  position  where  it  can  easily  be  read.  14 
Fourth,  That  no  firearms  shall  be  displayed  in  any  outer  window  of  said  15 
premises  or  in  any  other  place  where  they  can  readily  be  seen  from  the  16 
outside.  Fifth,  That  the  license  shall  be  subject  to  forfeiture  as  herein  17 
provided  for  breach  of  any  of  its  conditions,  and  that,  if  the  licensee  is  18 
convicted  of  a  violation  of  any  such  condition,  his  hcense  shall  thereupon  19 
become  void.  20 


Term  of 
licenses. 
1911,  495,  §  5. 


Section  124.  Licenses  shall  expu-e  on  April  thirtieth  of  each  year;  1 
but  they  may  be  granted  during  April  to  take  effect  on  May  first  next  2 
ensuing.  3 


Suspension  or 
revocation  of 
licenses. 
1911,  495,  §  6. 


Section  12.5.     The  licensing  board,  after  notice  to  the  licensee  and  1 

reasonable  opportunity  for  him  to  be  heard  by  the  board  or  by  the  mayor  2 

and  a  committee  of  the  city  council,  may  declare  his  license  forfeited,  3 

or  may  suspend  his  license  for  such  period  of  time  as  they  may  deem  4 

proper,  upon  satisfactory  proof  that  he  has  violated  or  permitted  a  vio-  5 

lation  of  any  condition  thereof  or  has  ^'iolated  any  law.     The  pendency  6 

of  proceedings  before  a  court  shall  not  suspend  or  interfere  with  the  7 

power  to  declare  a  forfeiture.     If  the  license  is  declared  forfeited,  the  8 

licensee  shall  be  disqualified  to  receive  a  license  for  one  year  after  the  9 

expiration  of  the  term  of  the  license  so  forfeited.  10 


Signs,  etc., 
evidence  that 
firearms  are 
kept  for  sale. 
1911.  495,  §  7. 


Section  126.  If  any  placard,  sign  or  advertisement  is  exposed  from, 
maintained  in  or  permitted  to  remain  upon  any  vehicle,  shop,  stand, 
tenement,  or  any  place  of  common  resort,  purporting  or  designed  to 
announce  the  keeping  in  or  upon  said  vehicle  or  in  or  upon  any  of  said 
premises  of  firearms,  it  shall  be  prima  facie  evidence  that  firearms  are 
kept  in  or  upon  such  vehicle  or  premises  for  sale. 


Transfer  of 
licenses, 
1911,  495.  § 


Section  127.     Licensing  boards  may  transfer  licenses  from  one  loca-  1 

tion  to  another  within  the  town  in  which  the  licenses  are  in  force,  but  2 

such  transfer  shall  be  granted  only  to  the  original  licensee  and  upon  the  3 

same  terms  and  conditions  upon  which  the  license  was  originalh-  granted.  4 


Penalty 
for  selling 
without  a 
license. 
1911,  495,  §  9. 


Section  128.  Whoever,  without  being  licensed  as  hereinbefore  pro- 
vided, sells  or  exposes  for  sale,  or  has  in  his  possession  with  intent  to 
sell,  firearms  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more 
than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  one 
year. 


Penalty  for  SECTION  129.     Any  pcrson  who  in  purchasing,  exchanging  or  hiring  1 

name.  etc.         a  firearm  gives  a  false  or  fictitious  name  or  address  shall  be  punished  by  2 

'  a  fine  of  not  less  than  twenty-five  nor  more  than  one  hundred  dollars  3 

or  by  imprisonment  for  not  more  than  one  year,  or  both.  4 


Chap.  140.]  licenses.  1437 

1  Section  130.    Whoever  sells  or  furnishes  to  a  minor  under  the  age  Penalty 

2  of  fifteen  any  firearm,  air  gun  or  other  dangerous  weapon  or  ammunition  fi°elrm^1.tc.. 

3  therefor  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  fift™°°''  "°'*^'' 

4  fifty  dollars,  but  instructors  and  teachers  may  furnish  military  weapons  ^^  l^^  §  92 

5  to  pupils  for  instruction  and  drill.  i909, 199.  1919,  iso. 

1  Section  131.    The  justice  of  a  court  or  a  trial  justice,  the  board  of  ^3r™pis*t°oi, 

2  police  or  mayor  of  a  city,  or  the  selectmen  of  a  town,  or  persons  au-  '^^^^^  j,,  ^  ^ 

3  thorized  by  them  may,  upon  the  application  of  any  person,  issue  a  license  lani  548!  1 1. 

4  to  such  person  to  carry  a  pistol  or  revoh'er  in  the  commonwealth  if  it 

5  appears  that  the  applicant  has  good  reason  to  fear  an  injury  to  his  per- 

6  son  or  property  or  for  any  other  proper  purpose,  and  that  he  is  a  suitable 

7  person  to  be  so  licensed. 

SMOKE  NXJIS.\NCE. 

1  Section  132.     In  a  toum,  except  those  mentioned  in  chapter  six  hun-  smoke 

2  dred  and  fifty-one  of  the  acts  of  nineteen  hundred  and  ten,  which  accepts  igm!"^!?,  §§  1, 

3  sections  one  hundred  and   thirty-two  to  one  hundred  and  thirty-six,  r.^l/?02. 

4  inclusive,  or  has  accepted  corresponding  provisions  of  earlier  laws  by  i9os!~f87~'^' 

5  a  vote  of  the  city  council  or  of  the  voters  of  a  town  at  an  annual  town  p^^^^^    ,  j3g 

6  meeting,  the  emission,  except  by  locomotive  engines  or  by  brick  or 

7  pottery  kilns,  into  the  open  air  of  dark  smoke  or  dense  gray  smoke  for 

8  more  than  five  minutes  continuously,  or  the  emission,  except  as  afore- 

9  said,  of  such  smoke  during  ninety  minutes  of  any  continuous  period  of 

10  twelve  hours,  within  a  quarter  of  a  mile  of  a  dwelling,  is  hereby  declared 

11  a  nuisance  unless  such  emission  is  under  a  permit  which  maybe  granted 

12  annually  by  the  aldermen  of  cities  or  the  selectmen  of  towns. 

1  Section  133.     Such  permit  shall  be  signed  by  the  mayor  or  by  a  P?™it^ 

2  majority  of  the  board  of  selectmen  and  by  the  city  or  town  clerk,  and  be  e,  s.' 

3  recorded  in  the  office  of  said  clerk.     It  shall  name  the  person  to  whom  it  §'123/  "' 

4  is  granted,  and  definitely  and  clearly  describe  the  location  and  limits  of 

5  the  premises  to  which  it  applies,  and  shall  remain  in  force  until  the  first 

6  day  of  May  next  after  its  date,  unless  sooner  forfeited  or  rendered  void. 

7  Notice  of  applications  for  such  permits  shall  be  published  at  the  expense 

8  of  the  applicant  in  the  manner  prescribed  by  section  fifteen  of  chapter 

9  one  hundred  and  thirty-eight  relative  to  applications  for  liquor  licenses. 

10  The  board  granting  the  permits  may  establish  fees  for  their  issue,  not 

11  exceeding  one  dollar  each,  to  be  paid  to  the  treasurer  of  the  municipality. 

1  Section  134.     If,  before  the  expiration  of  the  ten  days  following  the  objections 

2  publication  of  the  notice,  the  owner  of  a  dwelling  within  a  quarter  of  a  igoi.  427.  §  7. 

3  mile  of  the  premises  described  therein  gives  ■WTitten  notice  to  the  board    ■  •     ■ 

4  having  authority  to  grant  the  permit  that  he  objects  to  the  granting 

5  thereof,  it  shall  not  be  granted,  unless  said  board,  after  a  public  hearing 

6  of  the  persons  interested,  decides  that  no  just  ground  for  objection  exists, 

7  or  that  the  public  good  requires  that  it  be  granted ;  but  the  granting  of 

8  a  permit  shall  not  prejudice  any  right  of  damages  which  a  person  may 

9  have  against  the  person  receiving  the  permit.     If  a  permit  is  granted 

10  after  objection  is  filed,  and  without  a  hearing  as  aforesaid,  or  without 

11  proper  advertisement  as  herein  provided,  the  owner  of  such  dwelling  may 

12  apply  to  the  district  court  within  whose  jurisdiction  the  premises  are 

13  situated  for  a  hearing  in  the  case;  and  said  court,  if  it  appears  that  said 


1438 


LICENSES. 


[Ch.\p.  140. 


permit  was  granted  without  compliance  with  this  and  the  preceding  sec-  14 
tion,  shall  revolve  the  permit,  and  notice  of  such  revocation  shall  be  sent  15 
to  the  board  granting  the  permit  and  to  the  person  receiving  it.  16 


Enforcement. 
1901,  427, 
§§  3,  4, 
R.  L.  102, 
§  125. 


Section  135.     The  mayor  or  selectmen  may,  in  January  of  each  year,  1 

designate  some  proper  persons  who  shall  be  charged  with  the  enforcement  2 

of  sections  one  hundred  and  thirty-two  to  one  hundred  and  thirty-six,  3 

inclusive,  during  the  year  in  which  they  are  appointed;  but  such  desig-  4 

nation  shall  be  subject  to  change  at  any  time.    An  officer  so  designated  5 

may  apply  to  the  supreme  judicial  or  superior  court  for  an  injunction  to  6 

restrain  the  further  operation  of  any  furnace  or  steam  boiler  which  is  being  7 

operated  in  such  a  manner  as  to  create  a  nuisance  as  above  defined ;  and  8 

said  court  may,  after  hearing  the  parties,  enjoin  the  further  operation  of  9 

such  furnace  or  boiler.  10 


Penalty. 
1901,  437,  §  '. 
R.  L.  102, 
§  126. 


Section  136.     Whoever  commits  the  nuisance  defined  in  section  one  1 

hundred  and  thirty-two,  or  suffers  the  same  to  be  committed  on  any  2 

premises  owned  or  occupied  by  him,  or  in  any  way  participates  in  com-  3 

mitting  the  same,  shall  be  punished  by  a  fine  of  not  more  than  one  hun-  4 

dred  dollars  for  each  week  during  any  part  of  which  such  nuisance  exists.  5 


Licenses. 

1797,  53, 
5§  1.  2. 

1798,  54,  §  1. 
1810,  109. 
1S12,  140,  §  1. 
R.  S.  58, 

§§  10,  12. 
1850.  245. 

1858,  139, 
§§  1-3,  8. 

1859,  225, 
§§  1.  2 

G.  S.  88.  §  52. 

1864,  299,  §  1. 

1865,  197,  §  1. 
1867,  130,  §  1. 
1872,  330,  §  1. 
P.  S.  102,  §  80. 
1SS5,  292. 


DOGS. 

Section  137.  The  owner  or  keeper  of  a  dog  which  is  three  months  1 
old  or  over  shall  annually,  on  or  before  March  thirty-first,  cause  it  to  be  2 
registered,  numbered,  described  and  licensed  for  one  year  from  April  first  3 
following,  if  the  dog  is  kept  in  Boston  in  the  office  of  the  police  commis-  4 
sioner,  or  if  kept  in  any  other  town  in  the  office  of  the  clerk  thereof.  The  5 
license  shall  be  subject  to  the  condition  expressed  therein  that  the  dog  6 
which  is  the  subject  of  the  license  shall  be  controlled  and  restrained  from  7 
killing,  chasing  or  harassing  sheep,  lambs,  fowls  or  other  domestic  animals.  8 
The  owner  or  keeper  of  a  licensed  clog  sha'll  cause  it  to  wear  around  its  9 
neck  a  collar  distinctly  marked  with  its  owner's  name  and  its  registered  10 
number.  11 


R.  L.  102,  §  128. 
1909,  440,  §  4. 
1914,  198.  §  4. 
1917,  271,  §  2. 


12  Allen,  480. 
100  Mass.  136. 
123  Mass.  245. 
134  Mass.  537. 


109  Mass.  354. 
1  Op.  A.  G.  290. 

Penalty,  §  135. 


Same  subject. 

1859, 

225, 

§10. 

G.  S. 

88,  §  55. 

1863, 

113. 

1864, 

299, 

§2. 

1867, 

130. 

§2. 

1872, 

330, 

§§  1. 

2. 

P.  S. 

102, 

181. 

1885, 

292. 

R.  L. 

102, 

§129 

1 

1909, 

440, 

,§4. 

Fees. 

1797, 

53,  i 

§2. 

1824, 

139, 

§2. 

R.  S. 

58,  §  10. 

1858, 

139, 

§3. 

1859, 

225, 

§1. 

G.  .S. 

88,  §  52. 

1867, 

130,  §  1. 

P.  S. 

102, 

§82. 

1890, 

72. 

R.L. 

102, 

§130 

Section  138.  The  owner  or  keeper  of  a  dog  may  at  any  time  have  it 
licensed  until  i\pril  fu'st  follo\\ing;  and  a  person  who  becomes  the  owner 
or  keeper  of  a  dog  after  x\pril  first,  which  is  not  duly  licensed,  and  the 
owner  or  keeper  of  a  dog  which  becomes  three  months  old  after  March 
thirty-fu-st  in  any  year  shall,  when  it  is  three  months  old,  cause  it  to  be 
registered,  numbered,  described,  licensed  and  collared  as  reciuired  by  the 
preceding  .section.  ish.  los,  §  4. 

4  Allen,  584.  174  Mass.  74.  Penalty,  §  141. 

Section  139.  The  fee  for  every  license  shall,  except  as  provided  in 
section  one  hundred  and  seventy-three,  be  two  dollars  for  a  male  dog  and 
five  dollars  for  a  female  dog,  unless  a  certificate  of  a  registered  veterinarian 
who  performed  the  operation  that  said  female  dog  has  been  spayed  and 
has  thereby  been  deprived  of  the  power  of  propagation  has  been  filed 
with  the  town  clerk,  in  which  case  the  fee  shall  be  two  dollars.    A  certi- 


Chap.  140.]  licenses.  1439 

7  fied  copy  of  such  certificate  on  file  in  the  office  of  any  town  clerk  within  i908,  i69. 

8  the  commonwealth  may  be  accepted  as  evidence  that  the  said  operation  ^^^°'  ^^' 

9  has  been  performed. 

1  Section  140.     The  owner  or  keeper  of  dogs  kept  for  breeding  purposes  Breeder's 

2  may  annually  receive  a  license  authorizing  him  to  keep  such  dogs  upon  iss7^307. 

3  the  premises  described  in  the  license.     If  the  number  of  dogs  so  kept  f  lai/*^^' 

4  does  not  exceed  five,  the  fee  for  such  license  shall  be  twenty-five  dollars, 

5  and  if  the  number  of  dogs  exceeds  five,  the  fee  shall  be  fifty  dollars,  and 

6  no  fee  shall  be  required  for  the  dogs  of  such  owner  or  keeper  which  are 

7  under  the  age  of  six  months.     The  three  preceding  sections  shall  not 

8  apply  to  licenses  under  this  section. 

1  Section  141.     Whoever  violates  any  provision  of  sections  one  hundred  ^ll"^;'*" '°'' 

2  and  thirty-seven,  one  hundred  and  thirty-eight  or  one  hundred  and  forty  l'cf2'*'^'!,q  °f- 

3  shall  forfeit  not  more  than  fifteen  dollars,  which  shall  be  paid,  if  the  dog  issq!  225!  §  9! 

4  was  kept  in  any  town  in  Suffolk  county,  to  the  treasurer  of  the  town,  liei,  299,  §  s. 

5  or,  if  kept  in  any  other  county,  to  the  treasurer  thereof.  p^'s.' 102,' Hi. 

1901,  120.  15  Gray,  193.  107  Mass.  405. 

R.  L.  102,  §  137.  2  Allen,  507.  1  Op.  A.  G.  603. 

1  Section  142.     No  person  shall  keep  or  have  in  his  care  or  possession  KeepinK  of 

2  any  bloodhound,  excepting  an  English  bloodhound  of  pure  blood  whose  ^J°'«^'"'""''' 

3  pedigree  is  recorded  or  would  be  entitled  to  record  in  the  English  blood-  ^^l'  fg^'  ^  '• 

4  hound  herd  book,  or  any  dog  classed  by  dog  fanciers  or  breeders  as  Cuban  Lm^iQs' 

5  bloodhound  or  Siberian  bloodhound,  whether  such  dog  is  in  whole  or  in  5§  i.'  2- 

6  part  of  such  species,  unless  such  dog  is  kept  solely  for  exhibition.     In 

7  such  case  he  shall  at  all  times  be  kept  securely  enclosed  or  chained,  and 

8  shall  not  be  allowed  at  large  even  though  in  charge  of  a  keeper,  unless 

9  properly  and  securely  muzzled. 

1  Section  143.     Whoever  violates  the  preceding  section  shall  forfeit  Penalty. 

2  fifty  dollars,  ten  dollars  of  which  shall  be  paid  to  the  complainant,  and  u^t  m]  ^  ^' 

3  forty  dollars  shall,  if  the  dog  was  kept  in  any  town  in  Suffolk  county,  be  ^  ^^''^' 

4  paid  to  the  treasurer  of  the  town,  or,  if  kept  in  any  other  county,  to  the 

5  treasurer  thereof. 


moved  or 
killed  in  certain 


1  Section  144.    Within  forty-eight  hours  after  the  conviction  of  any  Dog  to  be 

2  person  for  keeping  a  dog  contrary  to  the  provisions  of  section  one  hundred 

3  and  forty-two,  the  mayor  of  a  city  or  chairman  of  the  selectmen  of  a  town  fsge^Jo^^ri 

4  within  which  such  dog  is  kept  shall  order  the  person  so  convicted  to  |'i^I'°^' 

5  remove  such  dog  from  the  city  or  town.    Written  notice  of  the  order  for 

6  such  removal  shall  be  served  by  any  police  officer  or  constable  of  the 

7  city  or  town;  and  if  such  dog  is  not  removed  within  twenty-four  hours 

8  after  service  of  such  notice,  the  mayor  or  chairman  of  the  selectmen 

9  shall  in  writing  order  such  dog  to  be  killed  by  any  police  officer  or  con- 

10  stable  of  such  city  or  town,  who  may,  in  the  execution  of  such  order, 

11  enter  any  premises  within  its  limits. 

1  Section  145.     Every  license  issued  to  the  owner  of  a  dog  shall  have  License  to 

2  a  description  of  the  symptoms  of  hydrophobia  printed  thereon.    Such  lioyfol'^hydro- 

3  description  shall  be  supplied  by  the  department  of  public  health  to  the  ^ll"^^''^^  pnnteJ 

4  clerks  of  the  several  towns  upon  application  therefor.  is77,  io7,  §  4. 

p.  S.  102,  §  83.  1886,  101,  §  4.  R.  L.  102,  §  132. 


1440 


LICENSES. 


[Chap.  140. 


License  valid 
throughout 
the  state,  etc. 
1859,  225.  §11. 
G.  .S.  88.  §  55. 
1864.  299,  §  5. 
1867,  130,  I  5. 
P.  S.  102.  §  S6. 
18S4,  185. 


Section  146.    A  license  duly  recorded  shall  be  valid  throughout  the  1 

commonwealth,  and  may  be  transferred  with  the  dog  licensed  thereunder;  2 

but  after  thirty  days  from  such  transfer  it  shall  be  again  recorded,  if  the  3 

dog  is  kept  in  Boston,  by  the  police  commissioner,  or,  if  kept  in  any  other  4 

city  or  town,  by  the  clerk  thereof.  5 

R.  L.  102,  5  13G.  1906,  291,  §  10.  134  Jlass.  537. 


Issuing  of 
licenses,  dis- 
position of  fees, 
etc. 

1797,  S3.  §  3. 
1824,  139,  §  2. 
R.  S.  58.  §  11. 

1858.  139. 
§§  1,4. 

1859,  225,  §  1. 
G.  S.  88.  I  53. 

1864,  299,  §  3. 

1865,  197,  §  2. 
1867.  130,  I  3. 
1871,41. 

P.  S.  102.  §  84. 
1886,  259,  §  2. 
18S7,  135. 
1888,  320,  §  2. 
E.  L.  102, 
§  133. 

1904.  353,  §  3. 
1906,  291,  §  10. 
141  Mass.  479. 


Section  147.    The  police  commissioner  of  Boston  and  the  clerks  of  1 

other  cities  and  towns  shall  issue  said  licenses,  receive  the  money  there-  2 

for,  and  pay  it  into  the  treasuries  of  their  respecti\'e  counties,  except  in  3 

the  county  of  Suffolk,  on  or  before  June  first  and  December  first  of  each  4 

year,  retaining,  except  in  Boston,  to  their  own  use  twenty  cents  for  each  5 

license,  and  shall  return  therewith  a  sworn  statement  of  the  amount  of  6 

money  thus  received  and  paid  over  by  them.    They  shall  also  keep  a  record  7 

of  all  licenses  issued  by  them,  of  the  names  of  the  keepers  or  owners  of  8 

dogs  licensed,  and  of  the  names,  registered  numbers  and  descriptions  of  9 

all  such  dogs.    If  a  city  or  town  clerk  neglects  to  pay  over  such  money  10 

to  the  county  treasurer  as  required  by  this  section,  the  city  or  town  may  11 

recover  the  amount  thereof  for  the  benefit  of  the  county,  with  all  damages  12 

sustained  through  such  neglect,  and  interest,  in  an  action  on  the  official  13 

bond  required  of  city  clerks  by  the  following  section  or  of  town  clerks  by  14 

section  thirteen  of  chapter  forty-one.  15 


Bond  of  city 

clerk. 

1SS8,  320, 

§§  1.3. 

R.  L.  102, 

§  134. 

1910.  319,  §  1. 

191S,  291.  §  21. 


give  bond  with 


Section  148.  City  clerks,  except  in  Bo.ston,  shall 
sureties  to  their  respective  cities,  which,  within  ten  days  after  their  elec 
tion  and  qualification,  shall  be  approved  by  the  aldermen,  conditioned 
faithfully  to  account  for  all  fees  received  for  dog  licenses  and  hunters' 
certificates,  and  for  the  payment  of  all  fees  received  for  dog  licenses,  less 
their  fees,  into  their  respective  county  treasuries,  and  for  the  payment 
of  all  fees  received  for  hunters'  certificates  of  registration,  less  their  fees, 
to  the  commonwealth. 


Accounts  of 
county,  etc., 
clerks. 

1859.  225,  §  1. 
G.  S,  88.  §  53. 
1864,  299.  §  4. 
1807,  130,  §  4. 


Section  149.     Each  county,  city  and  town  treasurer,  except  in  Suf-  1 

folk  county,  shall  keep  an  accurate  and  separate  account  of  all  money  2 

received  and  expended  by  him  under  the  provisions  of  this  chapter  re-  3 

lating  to  dogs.  p.  s.  102, 5  85.  r.  l.  102,  §  135.  4 


-Assessors  to 

take  list  of 

dogs. 

1S5S.  139.  §  2. 

1859,  225.  §  15. 

1864,  299,  §  6. 

1867,  130,  §  0. 

1871.  41. 

P.  .S.  102.  §  89. 

R.  L,  102, 

§  142. 

1914,  198,  §  4. 


Section  150.    The  assessors  shall  annually  take  a  list  of  all  dogs  1 

owned  or  kept  in  their  respective  cities  and  towns  on  April  first,  with  2 

the  owners'  or  keepers'  names,  and  return  the  same  to  the  city  or  town  3 

clerk,  or,  in  Boston,  to  the  police  commissioner,  on  or  before  July  first.  4 

An  owner  or  keeper  of  a  dog  who  refuses  to  answer  or  answers  falsely  to  5 

the  assessors  relative  to  the  ownership  thereof  shall  be  punished  by  a  6 

fine  of  not  less  than  ten  dollars,  which,  except  in  Sufi'olk  county,  shall  7 

be  paid  into  the  county  treasury.  8 


Dog  officers. 
Killing  un- 
licensed dogs. 

1797,  53,  §  4. 

1798,  54,  §  2. 
1812,  146,  §  2. 
R.  S.  58.  §  12. 

1858.  139,  §  1. 

1859,  225, 
H  4,  12. 


Section  151.    The  mayor  of  each  city  and  the  chairman  of  the  select-  1 

men  of  each  town  shall  annually,  within  ten  days  after  July  first,  issue  2 

a  warrant  to  one  or  more  police  officers  or  constables,  who  shall  hold  3 

office  for  one  year  or  until  their  successors  are  qualified,  directing  them  4 

forthwith  to  kill  or  cause  to  be  killed  all  dogs  within  such  city  or  town  5 

which  are  not  licensed  and  collared  as  required  by  this  chapter,  and  to  6 


Chap.  140.]  licenses.  1441 

7  enter  complaint  against  the  owners  or  keepers  thereof;   and  any  person  c.  s  ss, 

8  may,  and  every  poHce  officer  and  constable  shall,  kill  or  cause  to  be  killed  i864*o99,  §  7. 

9  all  such  dogs  whenever  or  wherever  found.     Such  officers,  other  than  r&^'io2!'§^90. 

10  those  employed  under  regular  pay,  shall  receive  from  the  treasurers  of  their  f^\^  '■^'-• 

11  respective  cities  and  towns  one  dollar  for  each  dog  so  destroyed;   except  JqU^'isS'^  ^' 

12  that  in  cities  of  twenty-five  thousand  inhabitants  or  more  they  shall  be  igiaop. 

13  paid  the  same  wages  per  diem  for  the  time  actually  employed  which  the  is  pick.  202. 

14  regular  police  officers  of  such  cities  receive.     Bills  for  such  services  shall  is^cf/ay.^li 

15  be  approved  by  the  mayor  of  the  city  or  chairman  of  the  selectmen  of  JooM'iis'iaG. 

16  the  town  in  which  said  dogs  are  destroyed,  and  in  cities  and  towns  in  loo  Mass.  273, 

17  the  countv  of  Suffolk  shall  be  paid  from  money  received  under  the  iss  m-^ss  240 

"  191  Miss   o') 

18  provisions  of  this  chapter  relating  to  dogs.     Cities  and  towns  in  other  210  Mass!  374. 

19  counties  shall  be  reimbursed  bj'  the  treasurers  of  their  respective  counties  226  Mass!  579'. 

20  from  the  money  received  under  such  provisions.  1  Op.  a.  g.  603. 

1  Section  152.     Each  police  officer  or  constable  to  whom  such  warrant  f^^^^^^\^ 

2  is  issued  shall  make  returns,  on  or  before  October  first  following  and  at  1867.  iso.  §  s. 

•  •  •  .PS    102   5  91 

3  the  expiration  of  his  term  of  office,  to  the  mayor  or  chairman  of  select-  r  l.  102. 

4  men  issuing  the  same,  and  shall  state  in  said  returns  the  number  of  dogs  i907!'24o,  §  2. 

5  killed,  the  names  of  the  owners  or  keepers  thereof  and  whether  all  unli- 

6  censed  dogs  in  his  town  have  been  killed,  and  the  names  of  persons  against 

7  whom  complaints  have  been  made  under  the  provisions  of  this  chapter 

8  relating  to  dogs,  and  whether  complaints  have  been  entered  against  all 

9  the  persons  who  have  failed  to  comply  therewith. 

1      Section  153.    Such  warrant  may  be  in  the  following  form:  warrant  to 

dog  officers. 
1867,  130.  §  16. 

Commonwealth  or  Massachusetts.  ^-  ^  'j°|  ^  '"^ 

(Seal.)  §  164. 

,ss. 

To  ,  constable  of  the  city  {or  toum)  of 

In  the  name  of  the  Commonwealth  of  Massachusetts,  you  are  hereby  required 
to  proceed  forthwith  to  kill  or  cause  to  be  killed  all  dogs  wdthin  the  said  city  (or 
town)  not  duly  licensed  and  collared  according  to  the  provisions  of  chapter  one 
hundred  and  forty  of  the  General  Laws,  and  you  are  further  required  to  make 
and  enter  complaint  against  the  owner  or  keeper  of  every  such  dog. 

Hereof  fail  not,  and  make  due  return  of  this  warrant  with  your  doings  therein, 
stating  the  number  of  dogs  killed  and  the  names  of  the  owners  or  keepers  thereof, 
and  whether  all  unlicensed  dogs  in  said  city  (or  town)  have  been  killed,  and 
the  names  of  persons  against  whom  complaints  have  been  made  under  tlie  pro- 
visions of  said  chapter,  and  whether  complaints  have  been  made  and  entered 
against  all  the  persons  who  have  failed  to  comply  with  the  jjro visions  of  said 
chapter,  on  or  before  the  first  day  of  October  ne.xt. 

Given  under  my  hand  and  seal  at  aforesaid,  the 

day  of  ,  in  the  year  nineteen  hundred  and 

Mayor  of  {or  Chairman  of  the  Selectmen  of) 

1  Section  154.    The  mayor  of  each  city  and  the  chairman  of  the  select-  Mayor  etc.. 

2  men  of  each  town  shall  annually,  within  ten  days  after  October  first,  district  nt- 

3  sign  and  transmit  to  the  district  attorney  of  his  district  a  certificate,  w°amfnt.r 

4  on  oath,  stating  that  the  warrant  named  in  section  one  hundred  and  fifty-  JlS-y;  130;  j  9; 

5  one  was  issued  and  whether  it  has  been  duly  executed  and  returned  ac-  hi' '102^^^ 

6  cording  to  this  chapter.     The  district  attorney  shall  prosecute  city,  town  §  '*5. 

7  or  county  officers  who  fail  to  comply  therewith. 


1442 


LICENSES. 


[Chap.  140. 


Damage 
by  does. 
1791,  38. 
1797,  53, 


Section  155.    The  owner  or  keeper  of  a  dog  shall  be  liable  in  tort  to  a     1 
5;     person  injured  by  it  in  double  the  amount  of  damages  sustainetl  by  him.       2 


179S,  .54.  5  3 
1812,  14B,  9  3. 
R.  S.  08,  ?  13. 
G.  S.  88.  §  59. 
P.  S.  102.  §  93. 
R.  L.  102.  5  146. 
20  Pick.  477. 
12  Met.  291. 
12  Cush.  278. 
11  Gray.  29. 
1  AUen,  191. 
3  Allen,  101,  191. 


i  Allen.  431 
117  Mass.  109. 

123  Mass.  580. 

124  Mass.  .57. 

128  Mass.  218,  598. 
131  .Mass.  236. 
148  Mass.  85. 

152  Mass.  7, 

153  Mass.  347. 

154  Mass.  346, 
159  Mass.  497. 


101  Mais.  182,  184. 
170  Mass.  441. 
172  Mass.  453. 
177  Mass.  163. 
184  Mass.  150. 
202  Mass.  506. 
204  Mass.  195. 
213  Mass.  28. 
216  Mass.  556. 
221  Mass.  73. 
229  Mass.  348. 


°erfon"oT'"°^        SECTION  156.     Any  person  may  kill  a  dog  which  suddenly  assaults  him 

anVmais  may  ^'hile  he  is  peaceably  walking  or  riding  outside  the  enclosure  of  its  owner 

Ij"?  k'l'ed,  when,  or  keeper;  and  any  person  may  kill  a  dog  found  out  of  the  enclosure  of  its 

R.  s.'5s,'§  Ti,  owner  or  keeper  and  not  under  his  immediate  care  worrying,  wounding 

p.' s.' 102,  §94.  or  killing  neat  cattle,  sheep  or  lambs. 

R.  L.  102,  JU7.  141  .Mass.  179.  177  Mass.  200. 


Complaint  as 
to  dangerous 
dog. 

1791,  38,  §  2. 
R.  S.  oS,  §  16. 
G.  S.  88,  §  61. 
P.  S.  102,  §  95. 
R.  L.  102, 
§  148. 


Dog  proved 
dangerous  may 
be  killed- 
1791,  38,  §  3. 
R.  S.  58,  §  16. 
G.  S.  88,  §  1)2. 
1805,  197,  S  4. 
1867,  130,  5  14. 
P.  .S.  102,  §  96. 
R.  L.  102. 
§  149. 

Treble  dam- 
ages if  dog. 
after  notice, 
causes  injury, 
etc. 

1791,  38,  §  4. 
R.  S.  58,  §  17. 
G.  S.  88,  §  63. 
P.  S.  102,  §  97. 

Protecting 
domestic 
animals  from 
injury  by  dogs, 
1902,  226. 
1904,  127. 


Section  157.  If  a  person  who  has  been  so  assaulted,  or  who  finds  a 
dog  strolling  outside  of  the  enclosure  of  its  owner  or  keeper  and  not  under 
his  immediate  care,  within  forty-eight  hours  after  such  assault  or  finding 
makes  oath  thereof  before  a  district  court  or  trial  justice  or  before  the 
clerk  of  the  town  where  the  owner  or  keeper  of  the  dog  dwells,  and  that 
he  suspects  the  dog  to  be  dangerous  or  mischievous,  and  gives  notice 
thereof  to  its  owner  or  keeper  by  delivering  to  him  a  certificate  of  such 
oath  signed  by  such  court,  justice  or  clerk,  the  owner  or  keeper  shall 
forthwith  kill  or  confine  such  dog;  and  if  he  neglects  so  to  do  after 
twenty-four  hours  from  the  receipt  of  such  notice  he  shall  forfeit  ten 
dollars. 

Section  158.  If  such  dog  is  licensed  the  fine  prescribed  by  the  pre- 
ceding section  shall  not  be  imposed  unless  the  dog  is  pro^'ed  to  be  mis- 
chievous or  dangerous.  Any  person  may  kill  a  licensed  dog  which  has 
been  so  proved  to  be  mischievous  or  dangerous  if  it  is  again  found  stroll- 
ing outside  of  the  enclosure  of  its  owner  or  keeper  and  not  under  his  im- 
mediate care. 

Section  159.  If  a  dog,  after  such  notice  to  its  owner  or  keeper,  by 
such  assault  wounds  any  person,  or  worries,  wounds  or  kills  any  neat 
cattle,  sheep  or  lambs,  or  does  any  other  mischief,  the  owner  or  keeper 
shall  be  liable  in  tort  to  the  person  injured  thereby  in  treble  the  amount 
of  damages  sustained  bv  him.  R.  l.  102.  §  150. 


1 
2 
3 

4 
5 
6 
7 
8 
9 
10 
11 

1 
2 

3 
4 

5 
6 

1 
2 
3 

4 
5 


Section  160.  The  county  commissioners  of  any  county,  or  their  1 
agents  thereto  authorized  in  WTiting,  may  enter  upon  the  premises  of  2 
the  owner  of  any  dog  known  to  them  to  have  M'orried  or  killed  sheep,  3 
lambs,  fowls  or  other  domestic  animals,  and  then  and  there  kill  such  dog,  4 
unless  such  owner  whose  premises  are  thus  entered  for  the  said  purpose  5 
shall  give  a  bond  in  the  sum  of  two  huntlred  dollars,  with  sufficient  sure-  6 
ties,  approved  by  the  county  commissioners,  conditioned  that  the  dog  7 
shall  refrain  from  killing  or  worrying  sheep,  lambs,  fowls  or  other  domestic  8 
animals  for  twelve  months  next  ensuing.  And  if  the  owner  of  the  dog  9 
declares  his  intention  to  give  such  a  bond,  the  said  county  commissioners  10 
or  their  agents  shall  allow  him  reasonable  time  in  which  to  procure  and  11 
prepare  the  same  and  to  present  it  to  them,  or  to  file  it  with  the  clerk  of  12 
the  town  where  the  said  owner  resides.  13 


Chap.  140.]  licenses.  1443 

1  Section  161.    Whoever  suffers  loss  by  the  worrying,  maiming  or  Certain 

2  killing  of  his  live  stock  or  poultry  by  dogs,  outside  the  premises  of  the  doS''*o\eViJ 

3  owners  or  keepers  of  such  dogs,  may,  if  the  damage  is  done  in  a  city,  in-  isss.'isS,"^ T 

4  form  the  officer  of  police  of  the  city  who  shall  be  designated  to  receive  cf's'llflcl.' 

5  such  information  by  the  authority  appointing  the  police,  and,  if  the  dam-  J||;^'  J^^'  |  ^^ 

6  age  is  done  in  a  town,  may  inform  the  chairman  of  the  selectmen  of  the  l'sgg''Jjo 

7  town,  or,  if  he  is  absent  or  ill,  any  one  of  the  selectmen,  who  shall  proceed  isse,'259.' 

8  to  the  premises  where  the  damage  was  done  and  determine  whether  the  r.  l.  io2;_ 

9  same  was  inflicted  by  dogs,  and  if  so,  appraise  the  amount  thereof  if  it  fgos^Vasi. 

10  does  not  exceed  twenty  dollars.     If  in  the  opinion  of  said  officer  of  police,  \l°\[  Igl'.  ^  ^ 

11  chairman  or  selectman,  the  amount  of  said  damage  exceeds  twenty  dol-  20°' a*g  ■^so 

12  lars,  the  damage  shall  be  appraised,  on  oath,  by  three  persons,  of  whom 

13  one  shall  be  such  officer  of  police,  chairman  or  selectman,  one  shall  be 

14  appointed  by  the  person  alleged  to  be  damaged,  and  the  third  shall  be 

15  appointed  by  the  other  two.     The  said  appraisers  shall  consider  andin- 

16  elude  in  such  damages  the  labor  and  time  necessarily  expended  in  the 

17  finding  and  collecting  of  the  live  stock  or  poultry  injured  or  separated 

18  and  the  value  of  those  lost  or  otherwise  damaged  by  dogs.     The  said 

19  officer  of  police,  chairman  or  selectman  shall  return  a  certificate  of  the 

20  damages  found,  except  in  Suffolk  county,  to  the  treasurer  of  the  county 

21  where  the  damage  was  done,  within  ten  days  after  such  appraisal  is  made. 

22  The  treasurer  shall  thereupon  submit  the  same  to  the  county  commission- 

23  ers,  who  within  tliirty  days  shall  examine  all  bills  for  damages,  and  may 

24  upon  their  own  motion  or  upon  request  of  an  interested  party  shall  sum- 

25  mon  the  appraisers  and  all  parties  interested  and  make  such  investiga- 

26  tion  as  they  may  think  proper,  and  shall  issue  an  order  upon  the  treasui'er 

27  of  the  county  for  such  amounts,  if  any,  as  they  decide  to  be  just  and  shall 

28  notify  all  interested  parties  of  their  decision.     The  treasurer,  except  in 

29  Suffolk  county,  shall  pay  all  orders  drawn  upon  him  in  full,  for  the  above 

30  purpose,  and  for  the  expenses  of  appraisal  out  of  any  money  in  the  county 

31  treasury,  and  payments  made  therefor  shall  be  charged  to  the  dog  fund. 

32  The  appraisers  shall  receive  from  the  county  tlu^ee  dollars  each  for  every 

33  such  examination  made  by  them,  and  also  twenty  cents  a  mile  one  way 

34  for  their  necessary  travel. 

1  Section  162.     The  aldermen  or  selectmen  may  offer  a  reward  of  not  Pf.^^I'Jj''"' 

2  more  than  twenty-five  dollars  for  the  killing  of  any  dog  found  to  have  found  injuring 

3  worried,  maimed  or  killed  any  sheep,  lambs,  fowls  or  other  domestic  anmfais' 

4  animals,  thereby  causing  damages  for  which  their  owner  may  become  }**l!  102;  ^  ^ 

5  entitled  to  compensation  under  the  preceding  section,  or  for  evidence  fgol^oo. 

6  which  shall  determine  to  the  satisfaction  of  such  aldermen  or  such  select- 

7  men  who  is  the  owner  or  keeper  of  the  dog  by  w  hich  such  damage  is  done. 

8  The  county  commissioners,  except  in  Suffolk  county,  shall  pay  the  said 

9  reward  from  the  dog  fund,  upon  a  certificate  signed  by  the  aldermen  or 
10  selectmen. 

1  Section  163.     If  the  aldermen  or  selectmen  determine,  after  notice  Notice  to 

2  to  parties  interested  and  a  hearing,  who  is  the  ownei  or  keeper  of  any  suXdog. 

3  dog  which  is  found  to  have  worried,  maimed  or  killed  any  sheep,  lambs,  ]i^t  tot'.  ^  ^' 

4  fowls  or  other  domestic  animals,  thereby  causing  damages  for  which  ^  ^^^■ 

5  their  owner  may  become  entitled  to  compensation  from  the  dog  fund 

6  under  section  one  hundred  and  sixty-one,  they  shall  serve  upon  the  owner 

7  or  keeper  of  such  dog  a  notice  directing  him  within  twenty-four  hours  to 

8  kill  or  confine  the  dog. 


1444 


LICENSES. 


[Ch.\p.  140. 


Penalty  for 

not  confining 

dog. 

1SS9,  454,  §  4. 

R.  L.  102. 

§  154. 


Section  164.  A  person  who  owns  or  keeps  a  clog,  and  who  has  re- 
ceived such  notice  and  does  not  within  twenty-four  hours  kill  such  dog 
or  thereafter  keep  it  on  his  premises  or  under  the  immediate  restraint 
and  control  of  some  person,  shall  be  punished  by  a  fine  of  not  more  than 
twenty-five  dollars;  and  any  person  may  kill  such  dog  if  it  is  found 
strolling  outside  of  the  enclosure  of  its  owner  or  keeper  and  not  under 
his  immediate  care. 


Appointment 
of  persona  to 
investigate 
damages  by 
dogs. 

1SS9,  434,  §  5. 
1894,  309,  §  1. 
R.  L.  102, 
§  155. 

19W,  142,  §  1. 
1907,  241. 
1910,  392,  §  1. 
1918,  271,  §  1. 
160  Mass.  186. 
177  Mass.  34. 


Section  165.  The  county  commissioners,  except  in  Suffolk  county,  1 
shall  appoint  one  and  may  appoint  not  more  than  four  suitable  persons,  2 
all  residents  of  the  county,  any  one  of  whom  shall,  at  the  request  of  said  3 
commissioners  or  of  the  chairman  of  the  selectmen  or  officer  of  the  4 
police  designated  as  provided  in  section  one  hundred  and  sixty-one,  5 
investigate  any  case  of  damages  done  by  a  dog  of  which  the  commis-  6 
sioners,  chairman  or  officer  shall  have  been  informed  as  provided  in  said  7 
section;  and  if  he  believes  that  the  evidence  is  sufficient  to  sustain  an  8 
action  against  the  owner  or  keeper  of  the  dog  as  provided  in  said  section  9 
and  believes  that  such  owner  or  keeper  is  able  to  satisfy  any  judgment  10 
recovered  in  such  action,  he  shall,  unless  the  owner  or  keeper  before  action  11 
brought  pa.vs  him  such  amount  in  settlement  of  the  damage  as  he  deems  12 
reasonable,  bring  the  action.  It  may  be  brought  in  his  own  name  and  in  1.3 
the  county  where  he  resides,  and  he  shall  prosecute  it.  The  persons  so  14 
appointed  shall  also  have  throughout  their  respective  counties  the  same  15 
powers  and  authority  as  police  officers  or  constables  acting  under  section  16 
one  hundred  and  fifty-one.  All  damages  received  or  reco\"ered  imder  this  17 
section  shall  be  paid  over  to  the  county  treasurer  and  placed  to  the  credit  18 
of  the  dog  fund.  The  county  treasurer  shall  pay  out  of  the  dog  fund  such  19 
reasonable  compensation  as  the  county  commissioners  shall  allow  for  20 
se^^■^ces  and  necessary  expenses  under  this  section  and  the  reasonable  21 
expense  of  prosecuting  the  said  actions.  The  persons  appointed  here-  22 
imder  may  be  removed  at  an\-  time  by  the  county  commissioners,  and  2.3 
in  counties  where  they  are  appointed  the  county  treasurer  shall  not  be  24 
authorized  to  bring  the  said  actions.  25 


Person 
damaged  has 
choice  of 
remedy 
1859,  225,  §  8. 
G.  S.  88,  §  65. 
1864,  299,  §  99. 
1867,  130,  §  10. 
P.  S.  102,  §  99. 
R.  L.  102, 
I  156 


Section  166.     The  owner  of  sheep,  lambs,  fowls  or  other  domestic  1 

animals  which  have  been  worried,  maimed  or  killed  by  dogs  shall  have  2 

his  election  to  proceed  under  section  one  hundred  and  sixty-one  or  sections  3 

one  hundred  and  fifty-seven  to  one  hundred  and  fifty-nine,  inclusi\-e:  4 

but,  having  signified  his  election  by  proceeding  in  either  mode,  he  shall  5 

not  have  the  other  remedv.  6 


Dogs  may  be 
required  to  be 
muzzled. 
1877,  167, 
S§1,2 
P.  S.  102, 
§§  101,  102. 
R.  L.  102, 
§  158. 


Section  167.     The-  aldermen  or  selectmen  may  order  that  all  dogs  1 

shall  be  muzzled  or  restrained  from  running  at  large  during  such  time  2 

as  shall  be  prescribed  by  such  order.    After  passing  such  order  and  posting  3 

a  certified  copy  thereof  in  two  or  more  public  places  in  the  town,  or,  if  4 

a  daily  newspaper  is  published  in  such  town,  by  publishing  such  copy  5 

once  in  such  newspaper,  the  aldermen  or  selectmen  may  issue  their  6 

warrant  to  one  or  more  of  the  police  officers  or  constables  of  such  town,  7 

who  shall,  after  twenty-four  hours  from  the  publication  of  such  notice,  8 

kill  all  dogs  found  unmuzzled  or  running  at  large  contrary  to  such  order,  9 

and  shall  receive  such  compensation  therefor  as  is  provided  in  section  10 

one  hundred  and  fiftv-one.  11 


Chap.  140.]  licenses.  1445 

1  Section  168.     The  aldermen  or  selectmen  may  cause  service  of  such  service  of 

2  order  to  be  made  upon  the  owner  or  keeper  of  the  dog  by  causing  a  Penafty. 

3  certified  copy  thereof  to  be  delivered  to  him;  and  if  he  refuses  or  neglects  p'^i.' 102,' im. 

4  for  twelve  hours  thereafter  to  muzzle  or  restrain  such  dog  as  so  required,  f  159/°"' 

5  he  shall  be  punished  by  a  fine  of  not  more  than  twenty-five  dollars. 

1  Section  169.     A  county,  city  or  town  officer  w  ho  refuses  or  wilfully  Penalty  on 

2  neglects  to  perform  the  duties  imposed  upon  him  by  the  provisions  of  isss,  i39™§'6. 

3  this  chapter  relating  to  dogs  shall  be  punished  by  a  fine  of  not  more  than  a^|.' ss,°§  ei^' 

4  one  hundred   dollars,   which   shall   be  paid,   except   in   Suffolk   county,  Hey' 130  1 1? 

5  into  the  county  treasury.    Whoever  is  aggrie\ed  by  such  refusal  or  neg-  S  f;  \%^  ^°*' 

6  lect  may  report  the  same  forthwith  to  the  district  attorney  of  his  district.  §  leo. 

1  Section  170.     In  Suffolk  count \-,  all  money  received  for  licenses  or  Disposition 

2  recovered  as  fines  or  penalties  under  the  provisions  of  this  chapter  re-  Cl suffofk"^" 

3  lating  to  dogs  shall  be  paid  into  the  treasury  of  the  town  in  which  said  ilS^g,  1 12. 

4  licenses  are  issued  or  said  fines  or  penalties  recovered.     All  claims  for  \f^-  i?J  |  \^- 

0  damages  done  by  dogs  in  Suffolk  county  shall  be  determined  by  appraisers  J^  w^' 102,  §105. 

6  as  specified  in  section  one  hundred  and  sixty-one  and,  when  approved  §  lei. 

7  by  the  aldermen  or  selectmen  of  the  city  or  town  where  the  damage  was 

8  done,  shall  be  paid  in  full  on  the  first  Wednesday  of  January  of  each 

9  year  by  the  treasurer  of  such  town,  if  the  gross  amount  received  by  him 

10  and  not  previously  paid  out  under  the  provisions  of  this  chapter  relating 

11  to  dogs  is  sufficient  therefor;    otherwise  such  amount  shall  be  divided 

12  pro  rata  among  such  claimants  in  full  discharge  of  their  claims. 

1  Section  171.     The  owner  or  keeper  of  a  dog  which  is  doing  damage  owner  of  dog 

2  to  sheep,  lambs,  fowls  or  other  domestic  animals  shall  be  liable  in  tort  coumy°for 

3  to  the  county  for  all  damages  so  done  which  the  county  commissioners  damages  pa.d 

4  thereof  ha\'e  ordered  to  be  paid  as  provided  in  this  chapter.    The  county  }|5*'  ^^9.  |  s 

5  treasurer,  except  as  provided  in  section  one  hundred  and  sixty-five,  may,  ^i,^^  HA'^ji 

6  and  if  so  ordered  by  the  county  commissioners  shall,  bring  such  action,  isot!  iss! 

7  In  Suffolk  county,  such  owner  or  keeper  shall  be  liable  in  like  manner  to  r  s.^ioa,  §  loe. 

8  the  town  for  damages  so  done  therein  which  the  aldermen  or  selectmen  f  im/"'' 

9  have  so  ordered  to  be  paid;  and  the  town  treasurer  may,  and  if  so  ordered  '®°  ^^^^-  '*® 
10  by  the  aldermen  or  selectmen  shall,  bring  such  action. 


1  Section  172.     Money  received  by  a  county  treasurer  under  the  pre-  Disposition  of 

2  ceding  sections  relating  to  dogs,  and'  not  paid  out  for  damages,  shall,  in  ""laT^oFdog 

3  January,  be  paid  back  to  the  treasurers  of  the  towns  in  proportion  to  'j'^^^  jg^  5  3 

4  the  amounts  received  from  such  towns,  and   the  money  so   refunded  i|g'J^g'|i" 

5  shall  be  expended  for  the  support  of  public  libraries  or  schools.     In  p  .s.'ro2,§  107. 

6  Suffolk  county,  money  so  received  by  the  town  treasurer  and  not  so  §  les.   " 

7  paid  out  shall  be  expended  by  the  school  committee  for  the  support  of  ^OpA.G.sie, 

8  public  schools. 

1  Section  173.     A  town  may  make  additional  ordinances  or  by-laws  Ordinances 

2  relative  to  the  licensing  and  restraining  of  dogs,  and  may  affix  penalties  ?" dog^"'"""  "^ 


139. 


10. 


3  of  not  more  than  ten  dollars  for  a  breach  thereof;    but  such  ordinances  r^^J.'II,' 

4  or  by-laws  shall  relate  only  to  dogs  owned  or  kept  in  such  town,  and  the  J^^o.  24's.  ^  ^^ 

5  annual  fee  required  for  a  license  under  section  one  hundred  and  thirty-  p|  foiVVoo 

6  nine  shall  in  no  case  be  more  than  one  dollar  in  addition  to  the  amount  R  l  102, 


required  by  said  section.  10  Met.  3S2 


165. 


1446 


LICENSES. 


[Chap.  140. 


^n&\S°'  Section  174.    All  fines  and  penalties  provided  in  the  preceding  sec- 

p.' I.' folVuo.  tions  relating  to  dogs  may  be  recovered  before  a  district  court  or  trial 
8*166  '°^'         justice  in  the  county  where  the  offence  was  committed. 


kmbg.'etc"  Section  175.    Whoever  wrongfully  kills,  maims,  entices  or  carries  1 

isss^Tsg.l"!    a^'<iy  ii  dog  licensed  and  collared  as  pro\'ided  in  section  one  hundred  and  2 

1859, 225, 1 5.    thirty-scven  shall  be  liable  in  tort  to  its  owner  for  its  value.  3 

G.  S.  88,  §  57.  P.  S.  102.  §  88.  R.  L.  208,  §  38.  1913,  551. 


Registration 
1890,  334,  " 
R.  L.  102, 
§  167. 


ST.\LLIONS. 

5 1.        Section  176.     The  owner  or  keeper  of  a  stallion  for  breeding  purposes  1 

shall,  before  advertising  the  service  thereof,  file  a  certificate  of  the  name,  2 

color,  age,  size  and  pedigree,  as  fully  as  obtainable,  of  said  stallion,  and  3 

of  the  name  of  the  person  by  whom  he  was  bred,  witli  the  clerk  of  the  4 

town  where  said  stallion  is  owned  or  kept,  who  .shall,  upon   payment  5 

of  a  fee  of  twenty-five  cents,  record  the  same  in  a  book  to  be  kept  for  that  6 

purpose.     Whoever  neglects  to  make  and  file  such  certificate  shall  re-  7 

co\'er  no  compensation  for  the  services  of  his  stallion,  and  whoever  know-  8 

ingly  and  wilfully  makes  a  false  certificate  shall  be  punished  by  a  fine  of  9 

one  hundred  dollars.  10 


Licenses. 
1857,  194.  §  2. 
G.  S.  88.  §  69. 
1876,  147, 
§5  1,2. 
1880,  94. 
P.  .S..102,  §  HI. 
1885,  323.  §  2. 
R.  L.  102, 
§  168. 

1902.  187,  I  5. 
1906.  291,  §  4. 
1911.  645. 
1920.  191. 
133  Mass.  578. 


BILLI.\RD   TABLES   AND   BOWLING   ALLEYS. 

Section  177.    The  licensing  board  of  Boston,  the  license  commission  1 

of  Lowell,  the  aldermen  of  any  other  city,  and  the  selectmen  of  any  2 

town  may  grant  and  may  suspend  or  revoke  at  pleasure  a  license  which  3 

shall  be  subject  to  sections  two  hundred  and  two  to  two  hundred  and  4 

five,  inclusive,  to  a  person  to  keep  a  billiard,  pool  or  sippio  table  or  a  5 

bowling  alley  for  hire,  gain  or  reward,  upon  such  terms  and  conditions  6 

as  they  deem  proper,  to  be  used  for  amusement  merely  and  not  for  the  7 

purpose  of  gaming  for  money  or  for  property.  8 

140  Mass.  38.  19U.Mass.  341. 


Penalty. 

1857.  194,  I  1. 

G.  S.  88,  §  70. 

1880,  94. 

P.  S.  102.5  112. 

R.  L.  102, 

5  169. 

109  Mass.  344. 

141  Mass.  420, 


Section  178.    Wlioever  without  such  license  keeps  or  suffers  to  be  1 

kept  in  a  house,  building,  yard  or  dependency  thereof,  actually  occupied  2 

or  owned  by  him,  a  table  for  the  purpose  of  playing  at  billiards,  pool  or  3 

sippio,  or  a  bowling  alley  for  hire,  gain  or  reward,  or  whoever  for  hire,  4 

gain  or  reward  suffers  any  person  to  resort  thereto  for  such  purpose  shall  5 

forfeit  not  more  than  one  hundred  dollars.  6 


Penalty  for 
admitting 
minors  to 
billiard  rooms. 

1855.  429,  §  1. 
G.  S.  88,  §  71, 
1866,  237. 
1880,  94. 


Section  179.     The  keeper  of  a  billiard,  pool  or  sippio  room  or  table,  1 

bowling  alley,  or  place  in  which  pictures  are  displayed  upon  the  deposit  2 

of  money  in  a  coin  controlled  apparatus,  Avho  admits  a  minor  thereto  3 

without  the  written  consent  of  his  parent  or  guardian,  shall  forfeit  ten  dol-  4 

lars  for  the  first  and  twenty  dollars  for  each  subsequent  offence,  5 

p.  S.  102.  §  113.  R.  L.  102,  §  170.  1908,  368.  98  Mass.  6. 


unCfwfu/use,  Section  180.  Whocvcr  erects,  occupies  or  uses  a  building  for  bowling 
aifey."'  ^°^'^'"^  alleys,  except  in  such  part  of  a  town  as  the  aldermen  or  selectmen  order, 
cf^s'ls^s  73  s^^^^  forfeit  not  more  than  fifty  dollars  for  every  month  he  so  occupies 
PSioisiii  or  uses  such  building,  and  in  like  proportion  for  a  shorter  time.  The 
5  ni.  "■  superior  court  may  restrain  such  erection,  occupancy  or  use  without 
sucli  order. 


Chap.  140.]  licenses.  1447 


THEATRICAL   EXHIBITIONS,    PUBLIC    AMUSEMENTS,    ETC. 

Section  181.     The   mayor   or   selectmen   may,   except  as   provided 


License  s. 
1S05,  98, 


uiilueiised 
pxhil)itioii. 
ISO.),  flS, 
§S  1.3. 


2  in  section  one  hundred  and  fi^•e  of  chapter  one  hundred  and  forty-nine,  l^^^ 3^, 
.3  grant,  upon  such  terms  and  conditions  as  they  deem  reasonable,  a  license  §§  i.'s.   . 

4  for  theatrical  exhibitions,  public  shows,  public  amusements  and  exhi-  ism.  231:  §  i. 

5  bitions  of  every  description,  to  be  held  upon  week  days  only,  to  which  p.  ,s.  i'o2.'§  115. 

6  admission  is  obtained  upon  payment  of  money  or  upon  the  delivery  HH]  434;  5  3 

7  of  any  valuable  thing,  or  by  a  ticket  or  voucher  obtained  for  money  or  f^h^ '°-'. 

8  any  valuable  thing,  or  in  which,  after  free  admission,  amusement  is  jsos.  341. 1 1. 

9  furnished  upon  a  deposit  of  money  in  a  coin  controlled  apparatus;  and  100s'. |s5._§  2. 

10  the  mayor  or  selectmen  may  revoke  or  suspend  such  license  at  their  7  ciriy!  162! 

11  pleasure,  but  they  shall  not  grant  a  license  for  any  such  theatrical  ex-  uls  mS:  519. 

12  hibitions,  public  shows  or  public  amusements  or  exhibitions  of  any  de-  J^j  ^J^S:  III. 

13  scription  whatever  to  beheld  upon  Sunday,  except  as  provided  in  chapter  iop^a!*g.^306. 

14  one  hundred  and  thirty-six.  Op.  a.  g.  (1920)  300. 

1  Section  182.     Whoe\-er  offers  to  view,  sets  up,  sets  on  foot,  maintains,  rcnaity  tor 

2  carries  on,  publishes  or  otherwise  assists  in  or  promotes  any  such  exhibi- 

3  tion,  show  or  amusement  without  such  license  shall  be  punished  by  a 

4  fine  of  not  more  than  five  hundred  dollars.     This  and  the  preceding  jfif'ss^^l'- 

5  section  shall  not  apply  to  public  entertainments  by  religious  societies  in  q^^IU'i^- 

6  their  usual  places  of  worship  for  a  religious  or  charitable  purpose,  or  to  isso.  is's. 

7  entertainments  given  in  school  buildings  by  or  for  the  benefit  of  the  k.l.  102,' 

8  pupils  thereof  and  under  the  supervision  of  the  principal  or  teacher  in  iooV,  4iio,  §  5. 

9  charge  of  the  school  classes  therein,  or  to  entertainments  given  in  a  \^l]  Ijf;  ^  ^■ 

10  pri\ate  dwelling,  except  in  apartments  thereof  having  a  seating  capacity  i64 Masl!*n. 

11  of  four  hundred  or  more.  177  Mass.  347. 

1  Section  183.     No  person  shall  darken  in  whole  or  in  part  the  hall,  p^iJlbfted '"'" 

2  room,  piazza,  roof  garden  or  other  place  in  which  a  public  dance  re-  during  progress 

3  quired  to  be  licensed  under  section  one  hundred  and  eighty-one  is  held,  dances  therein. 

4  or  any  stairway,   anteroom   or  passageway  connected  therewith,  dur-  hi-4.    ' 

5  ing  the  progress  of  a  dance  therein  or  until  all  persons  except  the  propri- 

6  etor  and  his  employees  have  withdrawn  from  the  premises.     The  degree 

7  of  light  required  in  such  places  shall  be  fixed  by  regulations  prescribed 

8  by  the  commissioner  of  public  safety,  copies  of  which  and  of  this  section 

9  shall  be  conspicuously  posted  in  every  such  place.    Violations  of  this  sec- 

10  tion  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  more 

11  than  one  thousand  dollars. 

1  Section  184.     Whoever  offers  to  view,  sets  up,  sets  on  foot,  maintains  Penalty  for 

2  or  carries  on  a  theatrical  exhibition,  public  show,  concert  or  dance  hall  iiquor  is  sold. 

3  exhibition,  of  any  description,  at  which  lager  beer  or  other  intoxicating  g.s.'ss,  §7b. 

4  liquor  is  sold  or  exposed  for  sale  with  the  consent  of  those  who  get  up,  r.  l.'ub,^  ^'^' 

5  set  on  foot  or  otherwise  promote  such  exliibition  or  show,  shall  be  punished  ^  ^''*- 

6  by  a  fine  of  not  more  than  fi\e  hundred  dollars  or  by  imprisonment  for 

7  not  more  than  two  years,  unless  such  exhibition  or  show  has  been  duly 

8  licensed  as  provided  by   section  one  hundred   and   eighty-one.     This 

9  section  shall  not  authorize  the  licensing  of  the  sale  of  liquor  contrary  to 
10  law. 


1448 


LICENSES. 


[Chap.  140. 


prowbftid"         Section  185.    \Mioever  gets  up,  sets  on  foot,  causes  to  be  published,  1 

cft^'ll V77'    °^  otherwise  aids  in  getting  up  and  promoting  a  masked  ball  or  other  2 

P.S.102, §  lis  public  assembly  at  which  the  company  wear  masks  or  other  disguises  and  3 

5  175.     '         to  which  admission  is  obtained  upon  payment  of  money  or  the  delivery  4 

of  any  valuable  thing,  or  by  a  ticket  or  voucher  obtained  for  money  or  5 

any  ^-aluable  thing,  shall  for  the  first  offence  be  punished  by  a  fine  of  not  6 

more  than  fi\-e  hundred  dollars  and  for  any  subsequent  offence  by  im-  7 

prisonment  for  not  more  than  one  year.  8 


License. 
1885,  196,  i 
R.  L.  102, 
§  176. 
1902,  187,  I 
1906,  190. 
1911,  645. 
1920,  47. 


SIC^.TING   RINKS,    ETC. 

Section  186.    The  licensing  board  of  Boston,  the  license  commission  1 

of  Lowell,  the  mayor  of  any  other  city,  and  the  selectmen  of  any  town,  2 

may  grant  a  license  to  any  person  to  establish,  keep  open  and  maintain  3 

skating  rinks  to  be  used  for  roller  skating,  carousels,  inclined  railways,  4 

Ferris  wheels  and  outdoor  exhibitions  of  fire  fighting  for  the  amusement  5 

of  the  public,  for  hire,  gain  or  reward,  upon  such  terms,  conditions  and  6 

regulations  as  they  deem  proper,  subject  to  sections  two  hundred  and  7 

two  to  two  hundred  and  five,  inclusive,  and  to  the  provisions  of  law  8 

relating  to  the  observance  of  Sunday.  9 


Tsss'ioe  §  2        Section  187.    Whoever,  without  such  license,  establishes,  keeps  open     1 

R.  1:102;     ■    or  maintains  a  skating  rink  to  be  used  for  the  amusement  of  roller  skating    2 

shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars.  3 


License. 

1885.  309,  §§  1. 

4;  323,  §  2. 

R.  L.  102, 

§  178. 

1902,  187,  §  5. 

1906,  291,  I  4. 


PICNIC   GROVES. 

Section  188.    In  a  city  or  town  which  accepts  the  provisions  of  this  1 

and  the  two  following  sections  or  has  accepted  corresponding  provisions  2 

of  earlier  laws,  the  aldermen,  except  in  Boston  and  Lowell,  or  the  select-  3 

men  may  grant  a  license  to  any  person  to  establish,  let,  keep  open  and  4 

maintain  a  grove  to  be  used  for  picnics  or  other  lawful  gatherings  and  5 

amusements  for  hire,  gain  or  reward,  upon  such  conditions  and  regula-  6 

tions  as  they  deem  proper,  subject  to  the  provisions  of  sections  two  7 

hundred  and  two  to  two  hundred  and  five,  inclusive.     Li  Lowell  the  8 

license  commission  and  in  Boston  the  licensing  board  may  grant  such  9 

licenses.  10 


Penalty. 
1885,  309,  §  2. 
R.  L.  102, 
§  179. 


Section  189.    Whoever,  without  such  license,  establishes,  lets,  keeps  1 

open  or  maintains,  himself  or  by  another,  a  grove  to  be  used  for  picnics  2 

or  other  amusements  for  hire,  gain  or  reward  shall  be  punished  by  a  fine  3 

of  not  more  than  one  hundred  dollars.  4 


Peddling  near 
picnic  grove 
forbidden. 
1887,  445. 
R.  L.  102, 
§  180. 


Section  190.     Whoever,  not  having  his  residence  or  regular  place  of  1 

business  within  one  half  mile  of  a  grove  licensed  under  section  one  hun-  2 

dred  and  eighty-eight,  during  the  time  of  holding  a  picnic  or  other  lawful  3 

gathering  in  such  licensed  grove  and  within  one  half  mile  thereof  hawks  or  4 

peddles  goods,  wares  or  merchandise,  or  establishes  or  maintains  a  tent,  5 

booth,  vehicle  or  building  for  vending  provisions  or  refreshments  Math-  6 

out  the  consent  of  the  licensee  of  such  grove,  or  engages  in  gaming  or  7 

horse  racing,  or  exhibits  or  offers  to  exhibit  any  show  or  play,  shall  forfeit  8 

not  more  than  twentv  dollars.  9 


Chap.  140.]  licenses.  1449 


STEAMBOATS. 

1  Section  191.     The  aldermen  or  selectmen  may  license  any  person  to  License. 

2  run  a  steamboat  or  other  boat  propelled  by  power  other  than  muscular  r!I.'io2!'h2o. 
■3  power  for  the  conveyance  for  hire  of  passengers  on  lakes,  ponds  or  waters  Sgio/i^l'.Vf'' 
4  not  within  the  maritime  jurisdiction  of  the  United  States.  i^"  -^i*^^  221. 

1  Section  192.     Such  licenses  shall  be  granted  for  a  term  of  not  more  Form  of 

2  than  one  year,  and  shall  be  recorded  by  the  clerk  of  the  town  where  lOTcaoo^rs 

3  they  are  granted,  who  shall  receive  a  fee  of  one  dollar  for  recording  each  ^  |  ui,^  ^"^ 

4  license.    Every  such  license  shall  set  forth  the  name  of  the  steamboat  f g\o^  J25  5  2 

5  or  other  boat,  of  the  master  and  owner,  and  the  number  of  passengers 

6  it  is  permitte<l  to  carry  at  any  one  time,  with  the  number  of  life  preservers 

7  that  shall  be  carried.    The  license  shall  be  posted  in  a  conspicuous  place 

8  therein,  and  the  number  of  passengers  specified  in  such  license  shall  in 

9  no  case  be  exceeded. 

1  Section  19.3.     Whoever,  runs  a  steamboat  or  other  boat  propelled  by  Penalty. 

2  power  other  than  muscular  power  for  the  con\"eyance  of  passengers  for  §§2,4    ' 

3  hire  on  such  waters  without  first  obtaining  such  license  from  the  aldermen  r.  L^'o'i^  '^" 

4  of  every  city  and  the  selectmen  of  every  town  within  which  such  steam-  f9\o^  125  §  3. 

5  boat  or  other  boat  lands  or  receives  passengers  for  hire  shall  be  punished 
C  by  a  fine  of  not  more  than  fifty  dollars. 

boating   ANT)   bathing. 

1  Section  194.    Cities  and  towns  which  accept  this  and  the  two  follow-  License 

2  ing  sections  or  have  accepted  corresponding  provisions  of  earlier  laws  '^^°'  ^°°'  ^  ^' 

3  by  a  vote  of  the  city  council  or  of  the  town  at  a  town  meeting  called  for 

4  the  purpose  may  prohibit  any  person  from  carrying  on  the  business  of 

5  renting  boats  or  bathing  suits,  for  use  upon  or  in  so  much  of  the  waters 

6  of  any  great  pond  as  is  situated  within  the  town,  without  first  obtaining 

7  a  license  so  to  do  from  the  aldermen  or  selectmen. 

1  Section  195.     The  aldermen  of  such  cities  and  the  selectmen  of  such  Posting 

2  towns  shall  cause  to  be  posted  in  the  immediate  vicinity  of  such  ponds  mo.lbo,  §  2. 

3  notices  stating  that  sections  one  hundred  and  ninet\-four  to  one  hun- 

4  dred  and  ninety-six,  inclusive,  have  been  accepted  by  the  city  or  town. 

1  Section  196.    Whoever  in  such  a  city  or  town,  without  obtaining  a  Penalty  for 

2  license  under  section  one  hundred  and  ninety-four,  if  one  is  required,  ficensl'"'  °"' 

3  engages  in  the  business  described  in  said  section,  shall  be  punished  by  '^^°'  *^-  ^  ^' 

4  a  fine  of  not  more  than  ten  dollars. 

GENERAL   PROVISIONS. 

1  Section  197.     Whoever,  himself  or  by  his  servant  or  agent,  admits  Admission  of 

2  a  child  under  fourteen  to  any  licensed  show  or  place  of  amusement  unless  entertmnments 

3  such  child  is  accompanied  by  a  person  over  twenty-one,  shall,  on  com-  islf^lG; 

4  plaint  of  a  parent  or  guardian  of  the  child  or  of  any  police  officer  or  of  an  f)^  ^°^' 

5  attendance  officer  of  the  town  in  which  the  chikl  is  so  admitted,  be  pun-  jgoy'ssg 

6  ished  by  a  fine  of  not  more  than  one  hundred  dollars;   but  he  shall  not  i9io!532; 

7  be  liable  to  said  fine  if  a  child  apparently  fourteen  years  old  has  obtained 

8  admission  by  any  written  misrepresentation  or  by  any  unauthorized  en- 

9  trance  to  said  place  of  amusement,  or  has  entered  with  and  apparently 


1450 


LICENSES. 


[Chap.  140. 


in  the  company  of  a  person  over  twenty-one  but  does  not  remain  with  10 
such  person,  provided  the  person  in  charge  of  said  place  of  amusement  11 
shall  remove  such  child  immediately  therefrom  upon  knowledge  that  the  12 
child  is  under  fourteen  and  not  then  accompanied  by  a  person  over  twenty-  13 
one.  This  section  shall  not  apply  to  shows  or  entertainments  which  14 
take  place  before  six  o'clock  in  the  afternoon  and  during  the  hours  that  15 
the  school  of  which  the  child  attending  such  show  or  entertainment  is  a  16 
pupil  is  not  in  session.  It  shall  be  prima  facie  evidence  that  such  school  17 
is  in  session  if  the  public  schools  are  in  session  in  the  town  where  said  IS 
show  or  entertainment  takes  place.  19 


No  proprietor,  lessee  or  manager  and  no  employee  of  a 


Admission  of  SECTION    198. 

young  persons  .  ,  »  1  i-      i      ii  •  i  •    i      i  • 

to  dance  halls    proprietor,  lessee  or  manager  oi  any  public  hall  or  room  in  which  dancino 
rinks  regulated,  or  roller  skating  is  practiced,  and  for  admission  to  which  money  or  other 

1<)06, 384.  o         I 

§§  1.2. 


valuable  thing  is  accepted,  shall  admit,  while  dancing  or  roller  skating 
is  practiced  therein  between  six  in  the  afternoon  and  six  in  the  fore- 
noon, any  person  under  seventeen  unless  such  person  is  accompanied 
by  a  parent,  guardian  or  adult  member  of  the  family  with  whom  such 
person  is  residing;  and  any  minor  may  be  refused  admission  to  or  ex- 
cluded from  any  such  hall  or  room  while  a  dance  or  roller  skating  is 
being  carried  on  therein,  unless  such  minor  produces  evidence  satisfactory  10 
to  the  proprietor  or  his  agent  that  he  is  over  seventeen.  This  section  11 
shall  not  apply  to  a  dance  given  by  any  charitable  or  religious  society,  12 
or  by  any  public  or  private  school,  or  by  any  class,  .society  or  club  the  13 
membership  of  which  is  restricted  to  some  particular  charitable  or  reli-  14 
gious  society  or  to  some  particular  public  or  private  school.  15 

Postmgcopy         Section  199.     A  copy  of  sections  one  hundred  and  ninety-eight  to     1 

1006, 384,  §  3.    |.^^,Q  hundred,  inclusive,  .shall  be  posted  at  the  entrance  of  every  public     2 

hall  or  room  where  roller  skating  or  public  dances  are  practiced.  3 

I'loe'ss^  §  4  Section  200.  Whoever  violates  any  provision  of  the  two  preceding  1 
sections  shall  be  punished  by  a  fine  of  not  less  than  five  nor  more  than  2 
one  hundred  dollars  or  by  the  forfeiture  of  his  license,  or  both.  3 


Officers  may 
enter  billiard 
rooms,  etc. 
1835,  429,  §  2 
1859,  219. 
G.  S.  88,  §  72. 
1S02.  222. 
ISSO,  '.)4, 
P.  S.  102,  §  123. 
1885,  196,  §  3; 
309,  §  3. 
K.  L.  102, 
§  185. 


Form,  etc.,  of 
certain  licenses. 
1839,  53,  §  2. 
1855,  121,  §  2. 
G.  S.  88. 
§§  26,  29. 
1876,  147,  §  1. 

1879,  102,  §  3. 

1880,  84;  94. 
P.  .S.  102,  §  124. 
1882,  258. 
1885.  196,  §  1; 
309,  §  1 ; 

323.  §  2. 
189-5,  497, 
R.  L.  102,  i 
1902.  1S7, 
§§  4,  5, 


§2. 
)  186. 


Section  201.     A  sheriff,   marshal  or  their  deputies,  a  constable  or  1 

police  officer  may  at  any  time  enter  a  billiard,  pool  or  sippio  room,  bowling  2 

alley,  skating  rink,  the  licensed  premises  of  a  common  victualler  or  room  3 

connected  therewith,  or  a  grove  required  to  be  licensed  under  section  one  4 

hundred  and  eighty-eight,  or  any  building  therein,  for  the  purpose  of  en-  5 

forcing  any  law;   and  whoever  obstructs  or  hinders  the  entrance  of  such  6 

officer  shall  be  punished  by  a  fine  of  not  less  than  five  nor  more  than  7 

twenty  dollars.  8 

Section  202.     Licenses    granted    to    keepers    of    intelligence   offices,  1 

dealers  in  junk,  old  metals  and   second   hand    articles,  junk  collectors,  2 

pawnbrokers  and  keepers  of  billiard  saloons,  pool  or  sippio  rooms  or  3 

tables,  bowling  alleys,  skating  rinks  and  picnic   groves  shall,   except  as  4 

hereinafter  provided,  be  signed  by  the  clerk  of  the  town  where  they  are  5 

granted.    Every  such  license  shall,  before  being  deli^•ered  to  the  licensee,  6 

be  recorded  by  the  town  clerk,  in  a  book  kept  for  that  purpose.    Such  7 

license  shall  set  forth  the  name  of  the  licensee,  the  nature  of  the  biisi-  8 

ness,  and  the  building  or  place  in  such  town  in  which  it  is  to  be  carried  9 

on,  and  shall  continue  in  force  until  May  first  following  unless  sooner  10 


Chap.  141.] 


SUPERVISION   OF   ELECTRICIANS. 


1451 


11  revoked.     The  board  or  officer  issuing  such  a  hcense  shall,  except  as  woo,  201,  §  lo. 

12  provided  in  section  seventy-seven,  receive  for  the  use  of  the  town  such  4"op.  Tg. 

13  amount,  not  less  than  two  dollars  for  each  license,  as  the  board  or 

14  officer  considers  reasonable.     In  Boston  licenses  for  keepers  of  billiard 

15  saloons,  pool  or  sippio  rooms  or  tables,  bowling  alleys,  skating  rinks  and 

16  picnic  groves  shall  be  signed  by  the  licensing  board  and  recorded  by  its 

17  clerk;   the  other  licenses  shall  be  signed  by  the  police  commissioner  and 
IS  recorded  by  his  clerk. 

1  Section  203.     Such  licenses  may  be  granted  in  April,  to  take  effect  on  Term  of 

2  May  first  following.         isvg,  147,  §  2.  p.  s.  102,  §  125.        r.  l.  102,  §  isr.  '-ceuses. 

1  Section  204.     A  license  issued  as  aforesaid   shall  not  protect  the  License  valid 

2  holder  thereof  in  a  building  or  place  other  than  that  designated  in  the  BpeoiSecf!  ""^^ 

3  license  unless  consent  to  removal  is  granted  by  the  licensing  board  or  F.'i.'iol.'iiie. 

4  officer.  r.  l.  102,  §  iss. 


1  Section  205.     Upon  the  revocation  of  such  a  license,  such  clerk  shall  ^n[°™Je°" 

2  note  the  revocation  upon  the  face  of  the  record  thereof,  and  shall  give  ^'^'•iQ.hiy-i'j 

3  written  notice  to  the  licensee  by  delivering  it  to  him  in  person  or  by  leav-  R-^l.  icS, 

4  ing  it  at  the  place  of  business  designated  in  the  license. 


§  189. 


REFERENCES. 

Other  provisions  relative  to  matters  dealt  with  in  this  chapter: 
Boarding  and  lodging  house  keepers,  liens,  Chap.  255,  §  23. 
Dogs,  chasing  deer,  Chap.  131,  §  65. 

Penalty  for  steahng,  Chap.  266,  §  47. 

Power  of  director  of  division  of  fisheries  and  game,  wardens,  etc..  Chap. 
130,  §  4. 
Licenses  for  hospitals,  dispensaries,  etc..  Chap.  Ill,  §§  53,  .59,  71,  1.55. 
Night  watcluncn  in  hotels  and  rope  fire  escapes,  Cliap.  143,  §§  44-47. 
Smoke  nuisance  in  Boston  and  vicinity,  1910,  651. 
§  115.     In  metropolitan  district,  state  fire  marshal  to  grant  licenses  under  this  section, 
Chap.  14.S,  §  30. 


CHAPTER     141 


SUPERVISION   OF   ELECTRICI.A.NS. 


Sect. 

1.  Registration  of  persons,  firms,  etc.,  to 

install  wires  or  apparatus  for  electric 
light  purposes,  etc.    Definitions. 

2.  State  examiners  of  electricians.     Rules, 

examinations,  etc. 

3.  Forms  of  licenses. 

4.  Certificates  not  transferable.      May  be 

suspended  or  revoked. 


Sect. 

5.  Penalties. 

6.  Liability  of  holder  of  a  master's  certifi- 

cate. 
Not  to  apply  to  certain  work. 
Exemption  of  apprentices  and  certain 

electricians. 
Penalty  for  misstatement. 
Disposition  of  fees  and  fines. 


7. 

8. 


9. 
10. 


1  Section  1.     No  person,  firm  or  corporation  shall  enter  into,  engage  Registration  of 

2  in,  or  work  at  the  business  of  installing  wires,  conduits,  apparatus,  fix-  et'oTt'omst'afi' 

3  tures  or  other  appliances  for  carrying  or  using  electricity  for  light,  heat  app'ifra'tus 

4  or  power  purposes,  either  as  master  electrician  or  as  journeyman  elec-  light'puVposes, 

5  trician,  unless  such  person,  firm  or  corporation  shall    have  received  a  fte 

/-.!•  1  -r-if.  Ill  •  i?i  Definitions, 

D  license  and  a  certificate  thereior,  issued  by  the  state  examiners  oi  elec-  I'Jio,  290,  §  1. 

7  tricians  and  in  accordance  with  the  provisions  hereinafter  set  forth. 


1452 


SUPERVISION'    OF   ELECTRICIANS. 


[Chap.  141. 


"Master  elec- 
trician" defined. 


"Journeyman 

electrician" 

defined. 

4  Op.  A.  G. 

496. 

State  examiners 
of  electricians. 
Rules,  exami- 
nations, etc. 
1915,  296,  I  2. 


Annual  report. 

Conduct  of 
examinations, 

225  Mass.  192. 
4  Op.  A.  G. 
631. 


The  words  "master  electrician"  as  used  in  this  chapter  shall  mean  a  S 
corporation,  firm  or  person,  having  a  regular  place  of  business,  who,  by  9 
the  employment  of  journeymen,  performs  the  work  of  installing  wires,  10 
conduits,  apparatus,  fixtures  and  other  appliances  for  carrying  or  using  11 
electricity  for  light,  heat  or  power  purposes.  12 

The  words  "journeyman  electrician  "  as  used  in  this  chapter  shall  mean  13 
a  person  doing  any  work  of  installing  wires,  conduits,  apparatus,  fixtures  14 
and  other  appliances  for  hire.  15 


Section  2.  The  state  examiners  of  electricians,  in  this  chapter  called  1 
the  examiners,  may  make  necessary  rules  for  the  proper  performance  of  2 
their  duties.  3 

They  shall  hold  frequent  examinations  in  Boston,  and,  twice  in  each  4 
year,  shall  hold  examinations  in  at  least  five  other  convenient  places  5 
within  the  commonwealth,  and  they  may  hold  annual  or  occasional  exam-  6 
inations  in  other  places.    Public  notice  shall  be  given  of  all  examinations.     7 

They  shall  make  an  annual  report  of  their  doings.  8 

In  the  conduct  of  the  examinations  they  shall  make  uniform  require-  9 
ments  for  all  towns,  which  may  be  revised  from  time  to  time,  as  circum-  10 
stances  require.  Said  examinations  shall  be  sufficiently  frequent  to  give  11 
ample  opportunity  for  all  applicants  to  be  thoroughly  and  carefully  ex-  12 
amined,  may  be  written  or  in  practical  work,  and  may  be  supervised  by  13 
one  or  more  of  the  examiners,  but  no  license  shall  be  granted  without  14 
the  sanction  of  the  examiners.  15 


Forms  of 
licenses. 
1915,  296, 
§§2,3. 

1918,213,  §  1; 
257,  §  342. 

1919,  2:  oG; 
333.  §  8. 

1920,  2. 

4  Op.  A.  G.  631. 


Fees. 


Re-examina- 
tion. 


Expiration 
and  renewals, 
"Certifi- 
cate A." 


Section  3.  Two  forms  of  licenses  shall  be  issued.  The  first,  herein- 
after referred  to  as  "Certificate  A",  shall  be  known  as  "master  elec- 
trician's license",  and  the  second,  hereinafter  referred  to  as  "Certificate 
B",  shall  be  known  as  "journeyman  electrician's  license". 

(1)  "Certificate  A"  shall  be  issued  to  any  person,  firm  or  corporation 
engaged  in  or  about  to  engage  in  the  business  of  installing  electrical 
wires,  conduits,  apparatus,  fixtures  and  other  electrical  appliances,  qual- 
ified unfler  this  chapter.  The  certificate  shall  specify  the  name  of  the 
person,  firm  or  corporation  so  applying,  and  the  name  of  the  person,  who 
in  the  case  of  a  firm  shall  be  one  of  its  members,  and  in  the  case  of  a  cor- 
poration, one  of  its  officers,  passing  said  examination,  by  which  he  or  it 
shall  be  authorized  to  enter  upon  or  engage  in  business  as  set  forth  therein. 
The  holding  of  "  Certificate  A  "  shall  not  entitle  the  holder  individually  to 
engage  in  or  perform  the  actual  work  of  installing  electric  wires,  conduits 
and  appliances  as  previously  described  in  this  chapter,  but  shall  entitle 
him  to  conduct  business  as  a  master  electrician. 

(2)  "Certificate  B"  shall  be  granted  to  any  person  who  has  passed  an 
examination  before  the  state  examiners  of  electricians.  It  shall  specify 
the  name  of  such  person,  who  shall  thereby  be  authorized  to  engage  in 
the  occupation  of  a  journeyman  electrician. 

(3)  Persons  desiring  an  examination  shall  make  ^^Titten  application 
therefor,  accompanied  by  the  proper  fee,  which  shall  be  twenty-five 
dollars  for  "Certificate  A"  and  one  dollar  for  "Certificate  B".  An 
applicant  failing  in  his  examination  shall  not  have  his  fee  returned  to 
him,  but  shall  be  entitled  to  one  free  re-examination.  For  each  subse- 
quent re-examination  for  "Certificate  A",  he  shall  pay  fifteen  dollars 
and  for  "Certificate  B",  fifty  cents. 

(4)  Each  "  Certificate  A"  shall  expire  on  July  thirty-first  in  each  year, 
but  may  be  renewed  by  the  same  person,  or  the  same  firm  or  corpora- 


1 

2 

3 
4 
5 
6 


9 
10 
11 
12 
13 
14 
15 
IG 
17 
IS 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 


Chap.  141.]  supervision  of  electricians.  1453 

30  tion,  acting  by  one  or  more  of  its  members  or  officers,  without  further 

31  examination,  upon  payment  of  a  fee  of  fifteen  dollars,  application  therefor  Fee. 

32  being  made  during  the  preceding  month. 

33  (5)  Each  "  Certificate  B  "  shall  expire  on  July  thirty-first  in  each  year,  Expirations. 

34  but  may  be  renewed  upon  paj-ment  of  a  fee  of  fifty  cents,  and  upon  the  cat'e  b.-'"'  ' 

35  same  conditions  set  forth  in  the  preceding  paragraph. 

36  (6)  Holders  of  "Certificate  A"  shall  keep  their  certificate  of  registra-  Holders  to 

37  tion  displayed  in  a  conspicuous  place  in  their  principal  offices  or  places  of  tJfiratls.Ttc. 

38  business.     Holders  of  "Certfficate  B"  shall  be  furnished  by  the  exam- 

39  iners  with  evidence  of  having  been  so  licensed,  in  card  form  or  otherwise, 

40  which  shall  be  carried  on  the  person  of  the  licensee  and  exhibited  on 

41  request. 

42  (7)  Any  certificate  expiring  while  the  holder  thereof  is  in  the  military 

43  or  naval  service  of  the  United  States  shall  be  renewed  without  further 

44  examination,  upon  payment  of  the  prescribed  fee,  at  any  time  within  four 

45  months  after  such  person's  discharge  from  the  service. 

46  (8)  Examination  papers  and  applications  for  "Certificate  A"  and  E^^^mination 

47  "  Certificate  B  "  shall  be  preserved  for  at  least  three  years,  after  which  PJ^'g"^^- 

48  time  they  may,  at  the  discretion  of  the  examiners,  be  destroyed. 

49  (9)  Records  of  the  meetings  of  the  examiners  shall  be  open  for  inspec-  Records  to  be 

50  tion  at  all  times,  and  they  shall  have  printed  annually  a  manual  of  their  ef™ '°  "" 

51  regulations,  including  the  names  of  all  licensees. 

1  Section  4.     No  certificates  issued  under  this  chapter  shall  be  assign-  CertiScites 

2  able  or  transferable.    They  may,  after  hearing,  be  suspended  or  revoked  abie.'^''May  be 

3  by  the  examiners  upon  failure  or  refusal  of  the  licensee  to  comply  with  revoked'"'  ""^ 

4  the  rules  and  requirements  of  the  examiners,  or  for  other  sufficient  cause.  J^Jg'  J^^|  1 1; 

1  Section  5.     Any  person,  firm  or  corporation,  or  employee  thereof,  and  fg^l'Mo,  5  5. 

2  any  representative,  member  or  officer  of  such  firm  or  corporation  indi- 

3  vidually,  entering  upon  or  engaging  in  the  business  and  work  hereinbefore 

4  defined,  without  having  complied  with  this  chapter,  shall  for  the  first 

5  offence  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  one 

6  hundred  dollars,  and  for  a  subsequent  offence  by  a  fine  of  not  less 

7  than  fifty  nor  more  than  five  hundred  dollars  or  by  imprisonment  in  the 

8  house  of  correction  for  six  months,  or  both. 

1  Section  6.     No  person,  firm  or  corporation  holding  a  "  Certificate  A"  ^ifder'^  a' 

2  shall  be  liable  for  work  done  by  his  or  its  employees,  unless  it  appears  ^^^^'^^  ""' 

3  that  such  work  was  done  with  his  or  its  knowledge  or  consent  or  by  his  wis,  296,  §  0. 

4  or  its  authorization. 


1  Section  7.     This  chapter  shall  not  apply  to  the  installation,  repairing  Not  to  apply 

2  and  wiring  of  elevators  or  to  work  in  connection  with  the  erection,  con-  work. 

3  struction,  maintenance  or  repair  of  lines  for  transmission  of  electricity  ^^^^' 

4  from  the  source  of  supply  to  the  ser^•ice  switch  on  the  premises  where  used 

5  by  municipal  electric  plants,  by  electric  companies  as  defined  in  section 

6  one  of  chapter  one  hundred  and  sixty-four,  by  gas  companies  author- 

7  ized  to  make  or  sell  electricity,  by  electric  street  railway  companies,  by 

8  electric  railroad  companies  or  by  railroad  companies;   nor  to  the  work 

9  of  such  plants  or  companies  on  premises  owned  or  controlled  by  them; 

10  nor  to  the  work  of  said  municipal  electric  plants  or  of  said  electric  or  gas 

11  companies  in  installing,  maintaining  and  repairing,  on  the  premises  of 

12  customers,  service  connections  and  meters  and  other  apparatus  and 


1454 


SUPERVISION   OF  PLUilBIXG. 


[Chap.  142. 


appliances  remaining  the  property  of  such  plants  or  companies  after  13 
installation;  nor  to  work  in  connection  with  the  lighting  of  public  ways,  14 
alleys,  private  ways  or  private  or  public  parks,  areas  or  squares;  nor  to  15 
the  work  of  companies  incorporated  for  the  transmission  of  intelligence  16 
by  electricity  in  installing,  maintaining  or  repairing  wires,  apparatus,  17 
fixtures  or  other  appliances  used  by  such  companies  and  necessary  for  18 
or  incident  to  their  business,  whether  or  not  such  wires,  conduits,  appa-  19 
ratus,  fixtures  or  other  appliances  are  on  its  own  premises.  20 


Exemption  c 
apprenticei?  : 
certain  elec- 
tricians. 
1915.  296.  § 
4  Op.  A.  G. 
496. 


nd      Section  8.     This  chapter  shall  not  forbid  the  emplojTnent  of  learners  1 

or  apprentices  working  with  and  under  the  direct  personal  supervision  of  2 

*■    licensed  journeymen  electricians.  3 

Electricians  employed  by  theatrical  companies  may  install  temporary  4 

■u"iring  and  appliances  required  for  the  purpose  of  the  engagement  of  any  5 

such  company,  subject  to  the  super\ision  of  a  person  licensed  under  this  6 

chapter.  7 

Electricians  regularly  employed  by  firms  or  corporations  other  than  8 

holders  of  "Certificate  A"  may  install  such  electrical  wiring,  conduits  9 

and  appliances  or  make  such  repairs  as  may  be  required  only  on  the  prem-  10 

ises  and  property  of  such  firms  or  corporations;    pro\'ided,  that  such  11 

electricians  hold  journeymen's  licenses,  and  ha^vB  complied  with  this  12 

chapter.  13 

mlssteLuInt.        SECTION  9.     Any  person  applying  for  a  journeyman's  license  and  1 

1918!  257'  *  °'    making  any  misstatement  as  to  his  experience  or  other  qualifications,  or  2 

liio's             ^^^y  Person,  firm  or  corporation  subscribing  to  or  vouching  for  any  such  3 

1920!  2.            misstatement,  shall  be  subject  to  the  penalties  set  forth  in  section  five.  4 

Se?and  fines^        SECTION  10.     Fccs  and  fiucs  collcctcd  Under  this  chapter  shall  be  paid  1 

1913,  296,  §  6.    to  the  commonwealth.  2 

REFERENCE. 
§  2.     Certain  state  officials  to  be  state  examiners  of  electricians,  Chap.  13,  §  32. 


CHAPTER     142. 


SUPERVISION   OF   PLUMBING. 


1.  Definitions. 

2.  Application  of  cliapter. 

3.  Master     plumbers     and     journej-men 

must  be  licensed,  etc. 

4.  Rules  for  examinations  of  plumbers,  etc. 

5.  Fees  for  licenses,  examination  and  re- 

newals. 

6.  Licenses    valid   throughout    common- 

wealth.     Registration.      Revocation 
of  licenses. 

7.  Temporary    suspension   of   license   for 

violation  of  statute,  etc. 

8.  Rules  as  to  construction,  etc.,  in  cer- 

tain towns.    Revision  of  rules. 

9.  Appointment  and  compensation  of  in- 

spectors of  plumbing.     Appeal  from 
inspector's  decision,  etc. 


Sect. 

10.  Inspection  districts. 

11.  Appointment  and  duties  of  inspectors 

in  cities  and  in  certain  towns. 

12.  Appointment  of  additional  inspectors. 

13.  Regulation  of  plumbing,  fi.xtures,  etc. 

14.  Sections  1   to   16  to  apply  to  persons 

learning  business,  when. 

15.  Expenditure  of  fees. 

10.  Penalty  for  certain  violations.    Penalty 

for  violation  by  towns. 
17.  Marking,  etc.,  of  range  boilers. 
IS.  Same  subject. 

19.  Penalty   for   violation   of   sections    17 

and  18. 

20.  Exception  to  sections  17,  IS  and  19. 


Chap.  142.]  supervision  of  plitmbing.  1455 

1  Section  1.     In  this  chapter  the  following  words  shall  have  the  fol-  fs|4''455""i  j 

2  lowing  meanings:  mn-f;' «r'Io' 
d         L  ertihcate    ,  a  certmcate  or  registration  issued  m  accordance  with  219  Mass.  3.3. 

4  section  three  of  chapter  five  hundred  and  thirty-six  of  the  acts  of  nine-  Jop.  a.  G.252. 

5  teen  hundred  and  nine,  section  two  of  chapter  five  hundred  and  ninety- 

6  seven  of  the  acts  of  nineteen  hundred  and  ten  or  chapter  ^xe  hundred 

7  and  eighteen  of  the  acts  of  nineteen  hundred  and  twelve. 

8  "Examiners",  state  examiners  of  plumbers  appointed  under  section 

9  ten  of  chapter  seventeen. 

10  "Journeyman",  a  person  who  himself  does  any  work  in  plumbing  sub- 

11  ject  to  inspection  under  any  law,  ordinance,  by-law,  rule  or  regulation. 

12  "Master  plumber",  a  plumber  having  a  regular  place  of  business  and 
1.3  who,  by  himself  or  journeymen  plumbers  in  his  employ,  performs  plumb- 

14  ing  work. 

15  "Practical  plumber",  a  person  who  has  learned  the  business  of  plumb- 

16  ing  by  working  for  at  least  two  years  as  an  apprentice  or  under  a  verbal 

17  agreement  for  instruction  and  who  has  then  worked  for  at  least  one  year 
IS  as  a  journeyman  plumber. 

19  "Registered",  registered  in  accordance  with  section  three  of  chapter 

20  five  hundred  and  thirty-six  of  the  acts  of  nineteen  hundred  and  nine, 

21  section  two  of  chapter  five  hundred  and  ninety-seven  of  the  acts  of  nine- 

22  teen  hundred  and  ten  or  chapter  five  hundred  and  eighteen  of  the  acts  of 

23  nineteen  hundred  and  twelve. 

1  Section  2.     Sections  one   to  seven,   inclusive,   sections  eleven  and  ^f^l'^pll°° 

2  twelve  and  sections  fourteen  to  sixteen,  inclusive,  shall  apply  to  all  is^s.  453.    ^^ 

3  cities,  and  section  thirteen  shall  applv  to  all  cities  except  Boston;   pro-  1909,' sae,' §  s. " 

4  \'ided,  that  any  such  city  except  Boston  may  by  vote  of  its  city  council  1911!  202.' 

5  exempt  from  thfe  pro\-isions  of  said  sections  any  or  all  of  its  territory 

6  Ijing  outside  of  the  limits  of  the  water  supply  of  such  city,  or  uncon- 

7  nected  ^^^th  a  common  sewer.    Sections  one,  three,  six  and  scA'cn  and 

8  sections  eleven  to  sixteen,  inclusive,  shall  apply  to  all  to^^•ns  which  by 

9  vote  of  their  inliabitants  accept  said  sections  or  have  accepted  cor- 

10  responding  proAisions  of  earlier  laws,  and  said  sections,  except  section 

11  tliirteen,  shall  apply  to  all  towns  which  accept  rules  formulated  by  the 

12  examiners  under  sections  eight  and  nine  or  have  accepted  them  under 

13  corresponding  pro\'isions  of  earlier  laws. 

1  Section  3.     No  person  shall   engage   in  the  business  of  a   master  Master 

2  plumber  or  work  as  a  journeyman  unless  he  is  lawfully  registered,  or  has  foumeyme" 

3  been  licensed  by  the  examiners  as  pro\ided  in  tliis  chapter.    The  license  iTcensed,  etc 

4  or  certificate  of  a  journeyman  shall  be  exliibited  whenever  required  by  isM'tsl'f/' 

5  an  inspector  of  plumbing.    Every  master  plumber's  license  or  certificate  fgmM'i}- 
G  shall  at  all  times  be  displayed  conspicuously  VAithin  liis  place  of  business.  213  iiass.  iss. 

217  Mass.  134.  219  Ma.ss.  219.  4  Op.  A.  G.  252. 

1  Section  4.     The  examiners  may  make  such  rules  as  they  deem  neees-  Rules  for 

2  sary  for  the  proper  performance  of  their  duties,  which  shall  take  effect  of  plumber".^ 

3  when  approved  by  the  department  of  public  health.    They  shall  examine  f^Q^^  477^ 

4  each  applicant  desiring  to  engage  in  the  business  of  a  master  plumber  or  1894' 455 

5  to  work  as  a  journeyman,  as  to  his  practical  knowledge  of  plumbing,  fJ^^jg, 

6  house  drainage  and  plmnbing  ventilation,  and  subject  him  to  a  practical  §§2,4. 

7  test  satisfactory  to  the  examiners,  who  if  satisfied  of  his  competence  shall  225  Mass'.  192. 

8  issue  to  him  a  license  as  applied  for.    They  shall  hold  frequent  examina- 


1456 


SUPERVISION   OF   PLUMBING. 


[Chap.  142. 


tions  in  Boston  and,  twice  in  each  year,  hold  examinations  at  five  other  9 
convenient  places  within  the  commonwealth.  Public  notice  shall  be  10 
given  of  all  examinations.  Every  application  for  examination  shall  be  11 
in  the  handwriting  of  the  applicant  who  shall  be  notified  by  the  exam-  12 
iners  of  the  time  and  place  of  examination.  The  examiners  may,  without  13 
payment  of  any  fee,  issue  a  probationary  license  in  force  for  six  months  to  14 
a  person  who,  having  worked  as  an  apprentice,  or  under  a  verbal  agree-  15 
ment  for  instruction,  for  not  less  than  three  years,  presents  an  appHca-  16 
lion  therefor  with  the  signed  endorsement  of  his  employer  agreeing  to  be  17 
responsible  for  all  work  done  under  the  license  and  to  have  the  licensee,  18 
at  the  expiration  of  the  license,  present  himself  for  examination  as  a  19 
journeyman.  20 


Fees  for 
licenses, 
exaniination 
and  renewals. 

1893,  477.  I  4. 

1894,  455.  I  4. 


Section  5.  The  fee  for  the  license  of  a  master  plumber  shall  be  two  1 
dollars;  for  examination  and  for  renewals  fifty  cents  each;  for  the  license  2 
of  a  journeyman  fifty  cents  each.  r.  l.  io3,  §  4.  1909, 530,  §  3.  3 


Licenses 
valid 

throughout 
common- 
wealth. 
Registration. 
Revocation  of 
Ucenses. 

1893,  477,  5  4. 

1894,  455,  §  4. 
R.  L.  103,  §  4. 
1909,  536,  §  4. 
Op.  A.  G. 
(1920)  106. 


Section  6.  Licenses  and  certificates  issued  by  the  examiners  shall  1 
be  valid  throughout  the  commonwealth.  The  examiners  shall  forward  2 
to  the  board  of  health  of  each  town,  or  to  the  inspector  of  buildings  3 
having  control  of  the  enforcement  of  regulations  relative  to  plumbing  in  4 
such  town,  the  names  and  addresses  of  all  persons  in  such  town  to  whom  5 
such  licenses  have  been  granted.  Licenses  shall  be  issued  for  one  year  6 
and  may  be  renewed  annually  on  or  before  May  first  upon  pajment  7 
of  the  required  fee.  Each  holder  of  a  master  plumber's  certificate  or  8 
license  shall  register  his  name  and  business  address  with  said  inspector  of  9 
buildings  if  he  has  such  control,  otherwise  with  the  board  of  health,  in  10 
the  town  wherein  he  desires  to  engage  in  business  as  a  master  plumber.  11 
The  examiners  may,  after  notice  and  hearing,  revoke  the  license  of  a  12 
licensee  violating  any  regulation  relative  to  plumbing  who  has  previously  13 
been  convicted  of  a  like  offence.  14 


Temporary 
suspension  of 
license  for 
violation  of 
statute,  etc. 
1909,  536,  §  4. 


Section  7.     If  in  the  opinion  of  such  inspector  of  buildings,  if  any,  1 

otherw-ise  of  the  board  of  health,  of  a  town,  the  holder  of  a  license  or  cer-  2 

tificate  violates  any  statute,  ordinance,  by-law,  rule  or  regulation  relative  3 

to  plumbing,  the  said  inspector  or  board  of  health  of  the  town  where  such  4 

violation  is  committed  may  request  the  examiners  to  forbid  such  holder,  5 

for  not  more  than  thirty  days,  to  engage  in  business  in  such  town  as  a  6 

master  plumber  or  to  work  as  a  journeyman.    After  notice  and  hearing  7 

both  parties,  the  examiners  maj'  so  forbid  such  holder  and  shall  give  8 

notice  of  their  decision  to  each  of  the  parties  interested.  9 


Rules  as  to 
construction, 
etc.,  in  certain 
towns. 
Revision 
of  rules. 
1909,  536,  §  5. 


Section  8.     Upon  petition  of  the  board  of  health  of  any  town  wliich  1 

has  not  prescribed  regulations  relative  to  plumbing  under  section  tliir-  2 

teen  or  corresponding  proAisions  of  earher  laws,  the  examiners  shall  3 

formulate  rules  relative  to  the  construction,  alteration,  repair  and  in-  4 

spection  of  all  plumbing  work  within  such  town,  wliich  rules,  when  5 

approved  by  the  department  of  public  health  and  accepted  by  the  said  6 

board  of  health  and  published  once  a  week  for  tliree  consecutive  weeks  7 

in  some  newspaper  published  in  said  town,  shall  have  the  force  of  law.  8 

Such  rules  may  be  re\'ised  by  the  examiners  upon  petition  of  the  board  9 

of  health.  10 


Ch.\P.    142.]  SUPERVISION   OF  PLimBING.  1457 

1  Section  9.     Within  thirty  days  after  rules  have  taken  effect  as  pro-  Appointment 

2  vided  in  the  preceding  section,  the  local  board  of  health  shall  appoint  an  sation™}"*" 

3  inspector  of  plumbing  having  the  qualifications  and  duties  specified  in  pluStblng!  °' 

4  sections  eleven  and  twelve  to  hold  office  for  three  years  unless,  after  inspector™™ 

5  hearing,  sooner  removed  for  cause.    He  shall  receive  from  the  town  com-  ?^n'n'°=:'J'/*f  ,= 

6  pensation  to  be  fixed  by  the  appomtmg  board,  subject  to  the  approval  of 

7  the  selectmen.    Appeal  from  a  decision  of  such  inspector  may  be  made  to 

8  the  examiners  within  ten  days  from  the  date  of  notice  of  his  decision.- 

9  The  appellant  shall  deposit  five  dollars  with  the  examiners  to  be  returned 

10  if  the  appeal  is  sustained,  otherwise  to  be  paid  to  the  commonwealth. 

11  The  decision  of  the  examiners,  a  copy  of  which  shall  be  served  on  each 

12  person  interested,  shall  be  subject  to  the  approval  of  the  department  of 

13  public  health  and  to  review  by  the  superior  court. 

1  Section  10.     Two  or  more  towns  may  unite  in  forming  an  inspection  inspection 

2  district,  the  expense  thereof  to  be  paid  on  such  basis  as  may  be  agreed  igMlM'e, § 6. 

3  upon  by  the  boards  of  health  thereof. 

1  Section  11.     The  said  inspector  of  buildings,  if  any,  otherwise  the  Appointment 

2  board  of  health,  of  each  city  and  town,  shall,  ^^ithin  three  months  after  p? inspectors 

3  it  becomes  subject  to  sections  one  to  sixteen,  inclusive,  appoint  from  SnceTTain"'' 

4  the  classified  ci\'il  ser\-ice  list  one  or  more  inspectors  of  plumbing  who  ^ggs^i??  5  5 

5  shall  be  practical  plumbers  and  shall  have  had  practical  experience  i|9|^  Hi  §  5. 

6  either  as  master  plumbers  or  journejinen,  continuously,  during  five  R-  l'  los,  §  5. 

7  years  next  preceding  their  appointment.     Such  inspector  of  buildings 

8  or  board  may  remove  them  for  cause  shown  and  shall,  subject  to,  ap- 

9  proA^al  of  the  city  council  or  selectmen,  fix  their  compensation  which 

10  shall  be  paid  by  the  city  or  town.     Said  inspectors  of  plumbing  shall 

11  inspect  all  plumbing  in  process  of  construction,  alteration  or  repair  for 

12  which  permits  are  granted  \\ithin  their  respective  cities  and  towns  and 

13  shall  report  to  their  appointing  power  or  board  violations  of  any  law, 

14  ordinance,  by-law,  rule  or  regulation  relative  to  plumbing;    they  shall 

15  perform  such  other  appropriate  duties  as  may  be  required.     The  ap- 

16  proval  of  plumbing  by  any  inspectors  other  than  those  provided  for  by 

17  this  chapter  shall  not  be  a  compliance  therewith. 

1  Section  12.     No  inspector  of  plumbing  shall  inspect  or  appro\e  any  Appointment 

2  plumbing  work  done  by  himself,  his  employer,  employee  or  one  employed  hispectorT'' 

3  with  him,  but  in  a  city  or  to^Mi  subject  to  sections  one  to  sixteen,  in-  r.^l.Ios,  §6. 

4  elusive,  the  said  inspector  of  buildings,  or  the  board  of  health,  shall  in 

5  the  manner  pro^^ded  in  the  preceding  section  appoint  an  additional 

6  inspector  of  plumbing  as  therein  pro\ided,  who  shall  inspect  plumbing 

7  so  done.    Said  additional  inspector  may  act  in  the  absence  or  disabiUty 

8  of  the  local  inspector  and  for  his  ser\-ices  shall  receive  like  compensation. 

9  This  section  shall  not  apply  to  any  city  or  town  establisliing  an  amiual 

10  salary  for  the  inspector  of  plumbing,  and  in  such  city  or  town  the  in- 

11  spector  of  plumbing  shall  not  engage  in  or  work  at  the  business  of 

12  plumbing. 

1  Section  13.     Each  city,  except  Boston,  and  each  town  which  has  Regulation  of 

2  five  thousand  inliabitants  or  more  or  which  has  a  system  of  water  supply  g'"'"'''°^' 


fixtures,  etc. 


3  or  sewerage,  shall  by  ordinance  or  by-law  prescribe  regulations  for  the  Utt  Ijf,  [ 

4  materials,  construction,  alteration  and  inspection  of  all  pipes,  tanks,  jigl;  4^ ;,;  |  {■ 

5  faucets,  valves  and  other  fixtures  by  and  through  which  waste  water  or  f-^^- 1°'-^^  \Jy^ 


1458 


SUPERVISION   OF   PLUMBING. 


[Chap.  142. 


sewage  is  used  and  carried;  and  shall  provide  that  such  pipes,  tanks,  6 

faucets,  valves  or  other  fixtiues  shall  not  be  placed  in  any  building  in  such  7 

city  or  town,  except  in  accordance  ^\-ith  plans  approved  by  said  inspector  8 

of  buildings,  if  any,  other^\-ise  by  the  board  of  health;  and  shall  further  9 

proN-ide  that  no  plumbing  shall  be  done,  except  to  repair  leaks,  -without  a  10 

permit  first  being  issued  therefor,  upon  such  terms  and  conditions  as  11 

such  cities  or  towns  shall  prescribe.    This  section  shall  not  prevent  boards  12 

of  health  from  making  such  regulations  relative  to  plumbing  and  house  13 

drainage  authorized  by  law  prior  to  July  sixth,  eighteen  hundred  and  14 

ninety-four,  as  are  not  inconsistent  with  any  ordinance  or  by4aw  made  15 

under  authority  of  this  section.  16 

1  to''?6  to             Section  14.     Sections  one  to  sixteen,  inclusive,  shall  apply  to  all  1 

p?re?ns°ieara-    persous  learning  the  business  of  pliunbing  when  they  are  sent  out  to  do  2 

when"'''°^^^'      the  work  of  a  jom-ne;yman.               iso*.  453,  §  9.               r.  l.  103,  §  9.  3 


Expenditure 
of  fees. 

1S94,  455,  §  11. 
R.  L.  103,  §  11. 


Section  1.5.  Inspectors  of  buildings  and  boards  of  health  may  ex- 
pend such  portion  of  the  fees  collected  by  them  under  tliis  chapter  as  is 
necessary  to  properly  perform  the  duties  imposed  thereby,  and  they  shall 
annually,  before  June  first,  make  a  detailed  report  to  their  respective 
cities  or  towns  of  all  their  proceedings  under  sections  one  to  sixteen, 
inclusive,  during  the  preceding  year. 


Penalty  for 
certain  viola- 
tions. 

Penalty  for 
violation  by 
towns. 
1888,  105,  §  2. 

1893,  477,  §  7. 

1894,  455,  §  8. 
R.  L.  103,  §  8. 
1909,  536,  §  10. 
1914,  287. 

225  Mass.  192. 


Section  16.  Every  person  engaged  in  the  business  of  a  master  1 
plumber  or  working  as  a  journejonan  not  lawfully  registered  or  licensed,  2 
if  required  by  tliis  chapter;  and  every  person  engaging  in  or  working  3 
at  the  business  of  plumbing  in  a  city  or  town  when  forbidden  so  to  4 
do  under  section  seven;  and  every  master  plumber  who  engages  or  5 
employs  any  person  to  work  as  a  journeyman  who  has  not  been  so  regis-  6 
tered  or  licensed;  and  every  person  violating  any  p^o^^sion  of  sections  7 
one  to  fifteen,  inclusive,  of  this  chapter  or  any  ordinance,  by-law,  rule  8 
or  regulation  made  thereunder,  shall  be  punished  by  fine  not  exceeding  9 
fifty  dollars.  Any  city  or  town  subject  to  the  preceding  sections  of  10 
tliis  chapter  neglecting  to  comply  -nith  any  of  its  pro\-isions  shall  forfeit  1 1 
fifty  dollars  to  the  use  of  the  commonwealth  for  each  month  during  12 
which  such  neglect  continues.  13 


Marking,  etc., 
of  range 
boilers. 
1916,  154,  §  1. 


Section  17.  No  range  boiler  shall  be  sold  or  offered  for  sale  unless 
its  capacity  is  plainly  marked  thereon  in  terms  of  Massachusetts  stand- 
ard liquid  measure,  and  with  the  maker's  business  name,  in  such  manner 
as  to  be  easily  identified. 


Same  subject. 

1916,  154,  §  2. 

1917,  39,  §  1. 


Section  18.     No  copper,  iron  or  steel  pressure  range  boiler,  plain  1 

or  galvanized,  or  other  vessel  or  tank  in  which  water  is  to  be  heated  2 

under  pressure,  shall  be  sold  or  offered  for  sale  -without  having  stamped  3 

thereon  the  maker's  guarantee  that  it  has  been  tested  to  not  less  than  4 

two  hundred  pounds  hydraulic  or  hydrostatic  pressure  to  the  square  5 

inch,  together  with  the  maximum  working  pressure  at  which  it  may  be  6 

installed.    And  no  such  boiler,  or  other  vessel  or  tank  in  which  water  is  7 

to  be  heated  under  pressure,  shall  be  installed  if  the  working  pressure  is  8 

greater  than  forty-two  and  one  half  per  cent  of  the  guaranteed  test  pres-  9 

sure  marked  thereon  by  the  maker.  10 


Chap.  143.] 


INSPECTION   OF   BUILDINGS,   ETC. 


1459 


1  Section  19.     Whoever  sells  or  offers  or  exposes  for  sale  any  range  Penalty  for 

2  boiler  not  marked  or  stamped  as  provided  in  the  two  preceding  sections,  S^uonTi? 

3  or  which  is  falsely  marked  as  having  a  capacity  which  is  greater  by  seven  !l9?6!ts4,  §  3. 

4  and  one  half  per  cent  than  its  true  capacity,  or  who  marks  or  causes  the  ^^"-  ^^'  ^  ^■ 

5  same  to  be  marked  with  such  false  capacity,  shall  be  pvmished  by  a  fine 

6  not  exceeding  fifty  dollars.     The  inspectors  of  plumbing  within  their 

7  respective  cities  and  towns  shall  cause  this  and  the  two  preceding  sec- 

8  tions  to  be  enforced. 

1  Section  20.     The  tliree  preceding  sections  shall  not  apply  to  the  sale  Esception  to 

2  or  offering  for  sale  of  installed  range  boilers  or  to  the  sale  or  offering  for  if  "nd^o!' 

3  sale  of  range  boilers  as  junk.  i9i6, 154, 5  4. 


CHAPTER     143 


INSPECTION  AND  REGULATION  OF,  AND  LICENSES  FOR,  BUILDINGS, 
ELEVATORS  AND  CINEMATOGRAPHS. 


Sect. 

general  provisions. 

1.  Definitions. 

2.  Height  of  buildings  in  cities. 


INSPECTION   OF   BUILDINGS. 

3.  Regulations  by  cities  and  towns. 

4.  Building  limits  in  towns. 

6.  Certain  structures  common  nuisances. 

6.  Inspector  of  buildings. 

7.  Time  allowed  to  remove  or  repair  un- 

safe structure. 

8.  Proceedings   on   failure    to   remove    or 

repair. 

9.  Dangerous    structure    to    be    removed 

or   repaired    by    building    inspector. 
Penalty. 

10.  Person  aggrieved  may  apply  for  jurj-. 

11.  Notice  to  non-resident. 

12.  Restraining  illegal  construction,  etc. 

13.  State  inspector  may  inspect  in  certain 

cities  and  towns. 

14.  Dangerous  structures  to  be  removed  or 

repaired. 

15.  Construction  of  public  buildings. 

16.  Penalty. 

17.  Temporary  flooring  during  construction. 

18.  Same  subject. 

19.  Penalty. 

20.  Hatchways,  etc.,  to  be  protected. 

21.  Fire  escapes,  exits,  etc. 

22.  Fire  escapes  to  be  kept  clear. 

23.  Stairways  to  be  kept  clear. 

24.  Fire  extinguishers,  etc. 

25.  Wooden  flues,  etc.,  prohibited. 

26.  Construction  of  theatres. 

27.  Fire  resisting  partition,  curtains,  etc. 

28.  Certificate  of  inspection. 


Sect. 

29.  Application  for  certificate. 

30.  Notice  of  change  in  use  of  building. 

31.  Notice  of  failure  to  conform  to  law. 
Schoolhouses  in  cities  to  have  fire  es- 
capes. 

Cities  may  require  three  storj'  build- 
ings to  conform  to  this  chapter. 
Licenses  for  theatres,  etc. 
Liability  of  licensee. 
Inspection  of  theatres,  etc. 

37.  Reports  to  be  kept  on  fUe. 

38.  Copies  of  ratings,  etc.,  to  be  sent  to 

licensee.  Penalty  for  non-compli- 
ance with  order. 

Copy  of  ratings,  etc.,  may  be  posted. 

Penalty  for  false  statement,  etc. 

Penalty  for  giving  or  receiving  free  pass. 

Ventilation  and  sanitation.  Inspection 
by  department  of  public  health. 

Joint  owner,  etc.,  may  provide  fire  es- 
cape. 

Watchmen  in  hotels,  etc. 

Modification  of  preceding  section. 

Further  provisions  for  protection  of  life 
may  be  prescribed.     Penalty. 

47.  Rope  fire  escapes  in  hotels,  etc. 

48.  Inspection  of  hotels,  etc. 

49.  Certificate  of  inspector  prerequisite  to 

license. 

50.  Penalty  for  hindering  inspector,  etc. 
61.  Owner  must  see  that  law  is  obeyed. 

52.  Penalty  for  unlicensed  use  as  theatre, 

etc. 

53.  General  penalty. 

54.  Enforcement. 

55.  Appeal. 

56.  J'ees  for  experts. 

57.  Restraining  illegal  erection,  etc. 


32. 

33. 

34. 
35. 
36. 


1460 


INSPECTION   OF   BUILDINGS,   ETC. 


[ClL\P.    1-13. 


Sect. 

58.  Concurrent     jurisdiction     of     inferior 

courts. 

59.  Enforcement  of  inspectors'  orders. 

60.  Restraining  illegal  use,  etc.,  of  build- 

ings. 

61.  Notice  to  assessors  of  permits  for  build- 

ing. 

ELEV.4T0RS. 

62.  Installation  and  inspection. 

63.  Test  of  safety  devices. 

64.  Report  of  inspection. 

65.  Certificate  of  inspection   to  be  posted 

in  elevator. 

66.  Report  of  accidents  and  of  defective  ele- 

vators. 

67.  Petition  for  changes  in  regulations. 

68.  Board  to  amend  regulations. 

69.  Establishment  of  regulations. 


Sect. 

70.  .4ppea!. 

71.  Penalty. 

CINEMATOGRAPHS. 

72.  Regulation. 

73.  Inspection. 

74.  Fee  for  inspection. 

75.  Licenses. 

7C.  Assistant's  permit. 

77.  Second  class  license. 

78.  First  class  license. 

79.  Eligibility  for  examination. 
SO.  Special  license. 

81.  Suspending  or  revoking  license  or  permit. 

82.  Permits  for  special  exhibitions. 

83.  Application  of  certain  sections. 

84.  Penalty. 

85.  Special      licenses      for      operators      in 

churches,  schools,  etc. 


Definitions. 
R.  L.  104,  §  14. 
1904,450,  I  1. 
1913,  610,  §  L>; 
655,  §§  14. 
30,  39.  41; 
S06,  5  1. 


2  Op.  A.  G.  564. 


GENERAL   PROVISIONS. 

Section  1.     In  this  chapter  the  following  terms,  unless  a  contrary     1 

meaning  is  required  by  the  context  or  is  specificallj''  prescribed,  shall  have    2 

the  following  meanings:  3 

"Alteration",  changes  in  or  addition  to  a  building.  4 

"Department",  department  of  public  safety.  5 

"Inspector",  an  inspector  of  the  division  of  inspection  of  the  depart-    6 

ment  of  public  safety,  except  that  in  sections  tliirty-four  to  thirty-eight,     7 

inclusive,  "inspector"  shall  include  the  inspectors  of  the  building  de-    8 

partment  of  Boston  and  in  sections  sixty-tliree  to  sixty-six,  inclusive,     9 

"inspector"  shall  include  a  building  inspector  of  a  city  or  town.  10 

"Inspector  of  buildings",  a  building  inspector  of  a  city  or  town.  11 

"Miscellaneous  hall",  a  building  or  part  thereof  containing  an  as-  12 

sembly  hall  with  a  seating  capacity  of  not  more  than  four  hundred,  a  13 

society  hall,  or  a  hall  in  a  public  or  private  school  building.  14 

"Public  building",  any  building  or  part  thereof  used  as  a  public  or  15 

private  institution,  schoolhouse,  church,  theatre,  special  hall,  public  hall,  16 

17 
18 
19 
20 
21 
'>2 


miscellaneous  hall,  place  of  assemblage  or  place  of  public  resort 

"Public  hall",  any  building  or  part  thereof,  except  theatres,  armories, 
churches  and  schools,  containing  an  assembly  hall  with  a  seating  capacity 
of  more  than  four  hundred  and  used  for  public  gatherings  and  for  such 
entertainments,  not  requiring  the  use  of  scenery  and  other  stage  appli- 
ances, as  the  licensing  officer  may  approve. 

"Repair",  the  reconstruction  or  renewal  of  a  building  or  part  thereof  23 
damaged  by  fire  or  other  cause.  24 

"Special  hall",  a  building  or  part  thereof  containing  an  assembly  hall  25 
with  a  seating  capacitj^  of  more  than  four  hundred  which  may  be  used  26 
for  occasional  performances  for  the  entertainment  of  spectators,  with  the  27 
use  of  scenery  under  such  conditions  as  the  licensing  officer  shall  direct,  28 
and  for  public  gatherings.  29 

"Story",  any  horizontal  portion  through  a  building  between  floor  and  30 
ceiling  of  which  the  ceiling  is  six  feet  or  more  above  the  average  grade  31 
of  the  sidewalk  or  ground  adjoining.  32 

"Supervisor  of  plans",  an  inspector  of  the  division  of  inspection  of  the  33 
department  of  public  safety  designated  by  the  commissioner  of  public  34 


ClLiP.    143.]  INSPECTION   OF   BUILDINGS.  1461 

35  safety  to  receive  the  plans  and  specifications  of  all  buildings  subject  to 

36  this  chapter,  to  be  erected  or  in  which  alterations  are  to  be  made,  and 

37  to  act  officially  upon  them  under  the  direction  of  the  chief  of  inspections 

38  of  the  department  of  public  safety. 

39  "Theatre",  a  building  or  part  thereof  in  which  it  is  intended  to  make  2  0p.  a.  g.s64. 

40  a  business  of  the  presentation  of  performances  for  the  entertainment  of 

41  spectators,  which  has  a  seating  capacity  of  more  than  foiu-  hundred,  with 

42  a  stage  which  can  be  used  for  scenery  and  other  stage  appliances. 

1  Section  2.     In  a  city  no  building  shall  be  erected  to  a  height  of  more  Height  of 

2  than  one  hundred  and  twenty-five  feet  above  the  grade  of  the  street;  citles"^^ '° 

3  but  this  restriction  shall  not  apply  to  grain  or  coal  elevators  or  sugar  r*^l!  26,  §  37. 

4  refineries,  nor  to  steeples,  domes,  towers  or  cupolas  erected  for  strictly  iu'^u^a'Qi.^^' 

5  ornamental  purposes,  of  fireproof  material,  on  buildings  of  the  above 

6  height  or  less.    The  supreme  judicial  or  superior  court  may  enforce  this 

7  section  and  restrain  any  violation  thereof.    Tliis  section  shall  not  apply 

8  to  Boston. 

inspection   of  BmLDINGS. 

1  Section  3.     Every  city,  except  Boston,  and  every  town  which  accepts  Regulations 

2  this  section  or  has  accepted  corresponding  pro\'isions  of  earlier  laws  towns!'^^'"' 

3  may,  for  the  prevention  of  fire  and  the  preservation  of  life,  health  and  §§^'2. 4.' 

4  morals,  by  ordinances  or  by-laws  consistent  with  law  and  applicable  fsw.^si',!  n. 

5  tliroughout  the  whole  or  any  defined  part  of  its  territory,  regulate  the  f^^-  ^°*-  5 1- 

6  inspection,  materials,  construction,  alteration,  repair,  height,  area,  loca-  }23\P,^'l-2 

7  tion  and  use  of  buildings  and  other  structures  within  its  limits,  except  143  Mass!  593! 

8  such  as  are  owned  or  occupied  by  the  United  States  or  by  the  common-  203  mSs!  241! 

9  wealth,  and  except  bridges,  quays  and  wharves,  and  may  prescribe  penal-  lii  Mast  296! 

10  ties  not  exceeding  one  hundred  dollars  for  every  violation  of  such  ordi-  5}?  jj^g^;  273. 

11  nances  or  by-laws.  224  Mass!  78." 

1  Section  4.    In  a  town  which  accepts  this  and  the  following  section  Building 

2  or  has  accepted  corresponding  prov^isions  of  earlier  laws,  no  dwelling  t'lwns.'^ 

3  house  or  other  structure  more  than  eight  feet  in  length  or  breadth  and  §|'i','3.'^' 

4  seven  feet  in  height,  except  detached  houses  or  structures  situated  more  f8^4.4°8*i,H2. 

5  than  one  hundred  feet  from  any  other  building  and  wooden  structiu-es  fg^-  J°*'  1 1- 

6  erected  on  wooden  wharves,  shall  be  built  within  such  limits  as  the  town 

7  may  from  time  to  time  prescribe,  unless  made  of  and  covered  with  an 

8  incombustible  material,  or  unless  a  license  is  granted  therefor  by  the 

9  selectmen  for  public  good  or  necessity  and  recorded  in  the  town  records. 


1  Section  5.     A  building  or  structure  erected  in  violation  of  the  pre-  Certain  stmc- 

2  ceding  section  shall  be  deemed  a  common  nuisance  without  other  proof  nu"iSnces.™°° 

3  thereof  than  proof  of  its  unla^^'ful  construction  and  use;  and  the  select-  p'a'm^'H' 

4  men  may  abate  and  remove  it  in  the  same  manner  in  which  boards  of  ^^^'  |^|'  |  ^^• 

5  health  may  remo\-e  nuisances^^nder  sections  one  hmidred  and  twenty-  i9i3.  ess,  §  3. 

6  three  to  one  hundred  and  twenty-five,  inclusive,  of  chapter  one  hmidred 

7  and  eleven. 

1  Section  6.    In  a  city  or  town  which  accepts  this  and  the  six  follow-  inspector  of 

2  ing  sections  or  has  accepted  corresponding  provisions   of   earlier  laws,  i878,47!§i. 

3  the  superintendent  of  public  buildings  or  such  other  person  as  the  mayor  ^39^4, 4s\,\  u. 

4  of  such  city  or  the  selectmen  of  such  town  may  designate  shall  be  in-  ^^l'  Jg^;  f  J; 

5  spector  of  buildings,  and,  immediately  upon  being  informed  by  report  i90|.  221, 1 1. 


1462 


INSPECTION   OF  BUILDINGS. 


[ClL\P.    143. 


1918,  291.  5  23. 
207  Mass.  285. 
20S  Mass.  51. 


or  otherwise  that  a  building  or  other  structure  or  anything  attached  6 

to  or  connected  therewith  in  that  city  or  town  is  dangerous  to  Hfe  or  7 

Umb,  shall  inspect  the  same;  and  if  it  appears  to  him  to  be  dangerous  8 

he  shall  forthwith  in  wTiting  notify  the  owner,  agent  or  any  person  9 

having  an  interest  therein  to  remove  it  or  make  it  safe.    If  it  appears  that  10 

such  structure  would  be  specially  unsafe  in  case  of  fire,  it  shall  be  deemed  11 

dangerous  within  the  meaning  hereof,  and  the  inspector  of  buildings  may  12 

affix  in  a  conspicuous  place  upon  its  exterior  walls  a  notice  of  its  danger-  13 

ous  condition,  which  shall  not  be  removed  or  defaced  without  authority  14 

from  him.  15 


Time  allowed 
to  remove  or 
repair  unsafe 
structure. 
1878.  47,  §  2. 
P.  S.  104.  §  5. 
1888.  399,  §  3. 
1894.  481, 
§§  15,49. 
1899,  139,  §  2. 
R.L.  104,  §  5. 
1913,  655.  §  S. 


Section  7.     Any  person  so  notified  shall  be  allowed  until  twelve  1 

o'clock  noon  of  the  clay  following  the  service  of  the  notice  in  which  to  2 

begin  to  remove  such  structure  or  make  it  safe,  and  he  shall  employ  3 

sufficient  labor  speedilj'  to  make  it  safe  or  remove  it;  but  if  the  public  4 

safety  so  requires  and  if  the  aldermen  or  selectmen  so  order,  the  inspec-  5 

tor  of  buildings  may  immediately  enter  upon  the  premises  with  the  6 

necessary  workmen  and  assistants  and  cause  such  unsafe  structure  to  7 

be  made  safe  or  taken  down  without  delay,  and  a  proper  fence  put  up  8 

for  the  protection  of  passers-by.  9 


Proceedings 
on  failure  to 
remove  or 
repair. 

1878,  47.  §  3. 
P.  S.  104,  §  6. 
1888,  399,  §  4. 
1894,481, 
B  16,  50. 
1899,  139,  §  3. 
R.  L.  104.  §  6. 
1913,  655,  §  6. 


Section  8.  If  an  owner,  agent  or  person  interested  in  such  unsafe  1 
structure  refuses  or  neglects  to  comply  with  the  requu-ements  of  such  2 
notice  within  the  time  limited,  and  such  structure  is  not  made  safe  or  3 
taken  down  as  therein  ordered,  a  careful  survey  of  the  premises  shall  4 
be  made  by  a  board  consisting  in  a  city  of  the  city  engineer,  the  chief  5 
engineer  of  the  fire  department  and  one  disinterested  person  to  be  ap-  6 
pointed  by  the  inspector  of  buildings,  and  in  a  town  of  a  surveyor,  the  7 
chief  engineer  of  the  fire  department  and  one  disinterested  person  to  be  8 
appointed  by  the  inspector  of  buildings.  If  there  is  no  city  engineer  in  9 
such  city  or  no  chief  engineer  of  the  fire  department  in  such  city  or  town,  10 
the  mayor  or  selectmen  shall  designate  one  or  more  officers  or  other  11 
suitable  persons  in  place  of  the  officers  so  named  as  members  of  said  12 
board.  A  wTitten  report  of  such  survey  shall  be  made,  and  a  copy  13 
thereof  served  on  such  owner,  agent  or  interested  person.  14 


Dangerous 
structure  to 
be  removed  or 
repaired  by 
building  in- 
spector. 
Penalty. 
1878,  47, 
§§  4,  5. 
P.  S.  104.  §  7. 
1894,481,  §  17. 
1S99,  139,  §  4. 
R.  L.  104,  §  7. 
1913,  655,  I  7. 


Section  9.     If  such  report  declares  such  structure  to  be  dangerous,  1 

and  if  the  owner,  agent  or  person  interested  continues  such  refusal  or  2 

neglect,  the  inspector  of  buildings  shall  cause  it  to  be  made  safe  or  taken  3 

down,  and  the  costs  and  charges  inciu-red  shall  constitute  a  lien  upon  the  4 

land  upon  which  the  building  is  located,  and  shall  be  enforced  within  the  5 

time  and  in  the  manner  provided  for  the  collection  of  taxes  on  land;  6 

and  such  owner  or  interested  person  shall,  for  every  day's  continuance  7 

of  such  refusal  or  neglect  after  being  so  notified,  forfeit  to  the  city  or  8 

town  in  which  the  structure  is  located  not  less  than  ten  nor  more  than  9 

fifty  dollars.  10 


Person  ag- 
grieved may 
apply  for  jury. 
1S73.  261. 
1878,47, 
§§  0-8. 
P.  S.  104, 
§§  8-10. 
1894,  481, 
§§  18-20. 
1S99,  139,  §  5. 


Section  10.  An  owner  or  interested  person  aggrieved  by  such  order 
may  have  the  remedy  prescribed  by  section  two  of  chapter  one  hun- 
dred and  thirty-nine;  but  this  section  shall  not  prevent  the  city  or 
town  from  recovering  the  forfeiture  provided  in  the  preceding  section 
from  the  date  of  the  service  of  the  original  notice,  unless  the  order  is 
annulled  by  the  jury.  R.  l.  io4,  §  s.  i9i3, 655,  §  s. 


Chap.  143.]  inspection  of  buildings.  1463 

1  Section  11.     If  an  owner  or  interested  person  lives  out  of  the  com-  Notice  to 

2  monwealth,  the  notice  required  by  section  six  may  be  served  upon  him  i878!'47.™ib. 

3  by  a  notary  public,  whose  certificate  of  service  imder  liis  notarial  seal  i8m,4m',V2i. 

4  shall  be  sufficient  evidence  thereof.  R.  l.  io4,  §  9.  wis,  ess,  §  9. 

1  Section  12.    The   supreme  judicial  or  superior  court  may  restrain  Restraining 

2  the  construction,  alteration,  repair,  maintenance  or  use  of  a  building  or  structionretc. 

3  structure  in  A'iolation  of  any  ordinance  or  by-law  of  a  city  or  town  and  lUz',  lis,  §  3. 

4  order  its  removal  or  abatement  as  a  nuisance;  and  may  restrain  the  further  p^s^'iw,  Vi2 

5  construction,  alteration  or  repair  of  a  building  or  structure  reported  to  be  )f?|'  ???• 

1*11  ••!  'Ill  loy4,  4ijl, 

6  dangerous,  under  a  survey  authorized  by  section  eight,  until  the  deter-  |§  ■*•  22. 

7  mination  of  the  matter,  as  provided  in  section  ten.  i9i3,  ess,  §  10. 

1  Section  13.     Any  inspector,  if  called  upon  by  the  aldermen  of  any  state  inspector 

2  city  or  by  the  selectmen  of  any  town  which  has  not  accepted  sections  ^rfa'S  atu;V° 

3  six  to  eleven,  inclusive,  shall  inspect  any  building  or  other  structure,  i8ss!°3"9?§  1. 

4  or  anything  attached  to  or  connected  therewith,  in  such  city  or  town  r^l'io4'|i2' 

5  which  has  been  represented  to  be  dangerous  to  life  or  limb.  i^i^'  ^^^'  §  12. 

1  Section  14.     If  it  appears  to  such  inspector  that  the  building  or  Dangerous 

2  other  structure,  or  anything  attached  to  or  connected  therewith,  is  dan-  be™emoved° 

3  gerous  to  life  or  limb  in  case  of  fire  or  otherwise,  he  shall  cause  it  to  be  iss^s.^m'^j  2. 

4  removed  or  rendered  safe  in  the  manner  provided  by  sections  six  to  ^^f-  *ll- 1  j|- 

5  eleven,  inclusive,  and  may  cause  proceedings  to  be  instituted  under  sec-  ^^^^-  ^^^-  5  is. 

6  tion  twelve. 

1  Section  15.     Except  in  Boston,  no  building  which  is  designed  to  be  Construction 

2  used,  or  in  which  alteration  shall  be  made  for  the  purpose  of  using  it,  or  CuSdin^. 

3  continuing  its  use,  in  whole  or  in  part,  as  a  public  building,  or  as  a  factory,  }|||  |Jg'  ^  '• 

4  workshop  or  mercantile  or  other  establishment,  and  to  have  accommoda-  fgg|*  jgg 

5  tions  for  ten  or  more  employees,  and  no  building  more  than  two  stories  is^*',!^?!  §  s] 

6  in  height  designed  to  be  used  above  the  second  story,  or  in  which  altera-  r.  l.  lol,' 

7  tion  shall  be  made  for  the  purpose  of  using  it,  or  continuing  its  use,  in  igisT'ess. 

8  whole  or  in  part,  as  an  office  building,  dormitory,  hotel,  family  hotel,  230^11833.306. 

9  apartment  house,  boarding  house,  lodging  house  or  tenement  house,  and  4  ^p-  ^-  g-  flJ- 

10  to  have  eight  or  more  rooms  above  said  story,  shall  be  erected,  and  no  o^i^jfu 

11  alteration  shall  be  made  therein,  until  a  copy  of  the  plans  and  specifica- 

12  tions  thereof  has  been  deposited  with  the  supervisor  of  plans  by  the 

13  person  causing  its  erection  or  alteration  or  by  the  architect  thereof.    Such 

14  plans  and  specifications  shall  include  those  for  heating,  ventilation  and 

15  sanitation,  if  the  supervisor  of  plans  so  requires.     Such  building  shall 

16  not  be  so  erected  or  altered  without  sufficient  egresses  and  other  means 

17  of  escape  from  fire,  properly  located  and  constructed.    The  supervisor  of 

18  plans  may  require  that  stairways  shall  be  enclosed,  that  they  shall  have 

19  suitable  landings,  that  they  shall  be  provided  with  hand  rails,  that  egress 

20  doors  and  windows  shall  open  outward  and  ha\e  approved  hardware, 

21  that  places  of  egress  shall  be  properly  lighted  and  designated,  and  that 

22  proper  fire  stops  shall  be  provided  in  the  floors,  walls,  partitions  and 

23  stairways  of  such  building.    He  may  make  such  further  requirements  as 

24  may  be  necessary  to  prevent  the  spread  of  fire  or  its  communication  from 

25  any  steam  boiler  or  heating  apparatus  therein.  The  certificate  of  ap- 
2G  proval  by  the  supervisor  of  plans  of  such  plans  and  specifications,  en- 
27  dorsed  with  the  approval  of  the  chief  of  inspections  of  the  department, 


1464 


INSPECTION   OF  BUILDmGS. 


[Chap.  143. 


or  a  specification  of  requirements  necessary  for  compliance  with  sections  28 
fifteen  to  sixty,  inclusive,  set  forth  in  detail  and  so  endorsed,  shall  be  29 
issued  to  the  person  causing  its  erection  or  alteration,  or  to  the  architect  30 
thereof,  and  a  copy  of  the  same,  together  with  the  plans,  shall  then  be  31 
turned  over  to  the  inspector  in  whose  district  the  building  is  to  be  erected  32 
or  altered,  who  shall  enforce  the  requirements  thereof  and  supervise  such  33 
erection  or  alteration.  After  a  certificate  of  approval  or  a  specification  34 
of  requirement  has  been  issued,  no  change  shall  be  made  in  the  plans  or  35 
specification  or  in  the  building  without  the  wTitten  permission  of  the  36 
supervisor  of  plans.  37 


Penalty. 
1888,  316,  §  2. 
1892.419, 
§  138. 

1S93,  199.  5  2. 
1894,  382,  §  3; 
481.  S§  26,  39. 
R.  L.  104, 
§§  24,  53. 


Section  16.     ^^^^oeve^,  except  in  Boston,  erects,  constructs  or  makes  1 

alteration  in  a  building,  or  draws  plans  or  specifications,  or  superintends  2 

the  erection,  construction  or  alteration  of  a  building  in  violation  of  3 

sections  fifteen  to  sixty,  inclusive,  shall  be  punished  by  a  fine  of  not  less  4 

than  fiftv  nor  more  than  one  thousand  dollars.  wis.  ess,  §§  le,  52.  5 


Temporarj' 
flooring  during 
construction. 
1901,  166,  §  1. 
R.  L.  104,  §  44. 
1909,  514,  §  97. 
1913,  655,  §  17. 
194  Mass.  431. 
213  Mass.  229. 

Penalty,  §  19. 


Section  17.  If,  in  the  erection  of  an  iron  or  steel  framed  building,  1 
the  spaces  between  the  girders  or  floor  beams  of  any  floor  are  not  filled  2 
or  covered  by  the  permanent  construction  of  said  floors  before  another  3 
story  is  added  to  the  building,  a  close  plank  flooring  shall  be  placed  and  4 
maintained  over  such  spaces  from  the  time  when  the  beams  or  girders  5 
are  placed  in  position  until  said  permanent  construction  is  applied ;  but  6 
openings  protected  by  a  strong  hand  railing  not  less  than  four  feet  high  7 
may  be  left  through  said  floors  for  the  passage  of  workmen  or  material;  8 
provided,  that  when  such  flooring  cannot  be  used  without  serious  inter-  9 
ference  with  the  work  of  construction,  such  provision  shall  be  made  to  10 
protect  the  workmen  from  falling  material  as  the  inspector  shall  direct.       11 


Same  subject. 
1901,  166,  §  2. 
R.  L.  104,  §  45. 
1909,  514,  5  98. 
1913.  65S,  §  18. 

Penalty.  §  19. 


Section  18.     In  the  construction  of  any  iron  or  steel  framed  building  1 

having  a  clear  story  of  twenty-five  feet  elevation  or  more,  a  staging  with  a  2 

close  plank  flooring  shall  be  placed  under  and  not  more  than  ten  feet  3 

below  the  under  side  of  the  whole  extent  of  the  beams,  girders  or  trusses  4 

of  such  story  upon  which  iron  or  steel  workers  are  working.  5 


Penalty. 
1901,  166,  §  4. 
R.  L.  104,  §  46. 
1909,  514,  §  99. 
1913,  655,  I  19. 


Section  19.  Violations  of  any  provision  of  the  two  preceding  sec-  1 
tions  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  five  2 
hundred  dollars.  3 


14. 


Hatchways, 
etc..  to  be 
protected. 
1877,  214, § 
P.  S.  104.  I 
1SS2,  20S. 
1894,  481, 
§§41,62. 
R.  L.  104, 
§§  43.  56. 
1909, 514, 
§§  36.  96. 
1913,  806,  §  13. 
145  Miiss.  123. 
202  Mass.  82. 


Section  20.     The  openings  of  hoistways,  hatchways  and  well  holes  1 

on  every  floor  of  a  public  building,  except  in  Boston,  shall  be  protected  2 

by  suflicient  trapdoors  or  self-closing  hatches  or  such  other  safeguards  3 

as  an  inspector  directs;    and  due  diligence  shall  be  used  to  keep  such  4 

trapdoors  closed  at  all  times  except  when  in  actual  use  by  the  occupant  5 

of  the  building  haA-ing  the  use  and  control  of  the  same.    Violations  of  6 

this  section  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  7 

dollars.  213  Mass.  573.  8 


Fire  escapes, 
exits,  etc. 
1877,  214, 
§§  4,  5,  19. 
1880,  197. 
P.  S.  104. 
§§  1.5,  16. 
18-20.  23. 


Section  21.    Except  in  Boston,  any  building  in  whole  or  in  part  used  1 

as  a  public  building,  and  any  building  in  which  ten  or  more  persons  2 

are  employed  in  a  factory,  workshop,  mercantile  or  other  establishment,  3 

and  an  office  building,  dormitory,  hotel,  family  hotel,  apartment  house,  4 


ClLiP.    143.]  INSPECTION   OF   BUILDINGS.  1465 

5  boarding  house,  lodging  house  or  tenement  house  which  has  eight  or  is82, 266, 

6  more  rooms,  or  in  which  ten  or  more  persons  are  accommodated,  lodge  ilsk Isi,  §  2. 

7  or  reside  above  the  second  story,  the  owner,  lessee  or  mortgagee  in  pos-  lii^'fT.'^' 

8  session  whereof  is  notified  in  writing  bj'-  an  inspector  that  sections  fifteen  Jg^j'  ifl'  |  f'- 

9  to  sixty,  inclusive,  apply  thereto,  shall  be  provided  with  proper  egresses  i^,-  ^^  ^°f 

10  or  other  means  of  escape  from  fire  sufficient  for  the  use  of  all  persons  i907,'5o.3,  §  1, 

11  accommodated,  assembled,  employed,  lodged  or  resident  therein;    but  §§26,52.' 

12  no  owner,  lessee  or  mortgagee  in  possession  of  such  building  shall  be  i2r/i/aM'.  L^' 

13  deemed  to  have  violated  this  provision  unless  he  has  been  notified  in  22SMass:368. 

14  writing  by  an  inspector  as  to  what  additional  egresses  or  means  of  escape  lo"' a'§  347' 

15  from  fire  are  necessary,  and  for  thirty  days  has  neglected  or  refused  to 

16  provide  the  same.    The  egresses  and  means  of  escape  shall  be  kept  un- 

17  obstructed,  in  good  repair  and  ready  for  use,  and,  if  the  inspector  so 

18  directs  in  WTiting,  every  such  egress  shall  be  properly  lighted  and  pro- 

19  vided  with  a  sign  having  on  it  the  word  "Exit"  in  letters  not  less  than 

20  five  inches  in  height,  and  so  made  and  placed  as  plainly  to  indicate  to 

21  persons  within  the  building  the  situation  of  such  egresses;    stairways 

22  shall  have  suitable  hand  rails;   egress  doors  and  windows  shall  open 

23  outwardly,  and  women  or  children  shall  not  be  employed  in  a  factory, 

24  workshop,  mercantile  or  other  establishment  in  a  room  above  the  sec- 

25  ond  story  from  which  there  is  only  one  egress.     The  certificate  of  the 

26  inspector  shall  be  conclusive  evidence  of  a  compliance  with  the  said  re- 

27  quirements.    Portable  seats  shall  not  be  allowed  in  the  aisles  or  passage- 

28  ways  of  such  buildings  during  any  service  or  entertainment  held  therein. 

29  Stairways  on  the  outside  of  the  building  shall  have  suitable  railed  land- 

30  ings  at  each  story  above  the  first,  accessible  at  each  story  from  doors  or 

31  windows,  and  such  landings,  doors  and  windows  shall  be  kept  clear  of  ice, 

32  snow  and  other  obstructions. 

1  Section  22.     Any  article  placed  upon  a  fire  escape  or  an  outside  means  Fire  escapes 

2  of  egress  of  any  building  is  hereby  declared  a  common  nuisance.    Any  Jfear^ "''"' 

3  court  authorized  to  issue  warrants  in  criminal  cases  may,  upon  complaint  ^^°^'  ^^''  ^  '■ 

4  under  oath  made  by  any  police  officer  that  any  article  is  placed  or  raain- 

5  tained  upon  a  fire  escape  or  outside  means  of  egress  of  any  building, 

6  issue  a  warrant  to  bring  such  article  when  found  before  a  court  having 

7  jurisdiction  of  the  same,  and  all  articles  seized  under  the  authority  of  such 

8  a  warrant  shall  be  disposed  of  in  like  manner  as  gaming  implements 

9  seized  under  chapter  two  hundred  and  seventy-six.     Any  owner,  lessee, 

10  tenant  or  occupant  of  any  building  who  maintains  or  permits  to  remain 

11  upon  any  fire  escape  or  outside  means  of  egress  of  any  building  any 

12  article  for  more  than  twenty  minutes  shall  be  punished  by  a  fine  of  not 

13  more  than  one  hundred  dollars.    The  existence  of  any  article  upon  a  fire 

14  escape  or  outside  means  of  egress  of  any  building  shall  be  prima  facie 

15  evidence  that  such  article  was  so  placed,  maintained  or  permitted  to 

16  remain  by  the  occupant  of  the  premises  having  access  from  said  building 

17  to  said  fire  escape  or  outside  means  of  egress. 

1  Section  23.     Every  stairway  of  every  building  shall  be  kept  free  and  |f  \''^','^^^ '°  ^^ 

2  unobstructed,  and  any  person  who  permits  any  article  to  remain  in  any  wos, 347,§  2. 

3  stairway  of  any  building  in  such  a  manner  as  may  impede  the  egress  of 

4  any  person  lawfully  in  said  building  or  the  ingress  of  any  person  lawfully 

5  entitled  to  enter  said  building  shall  be  punished  by  a  fine  of  not  more 

6  than  five  hundred  dollars.     The  existence  of  any  article  in  any  such 


1466 


INSPECTION    OF   BUILDINGS. 


[ClL\P.    143. 


stairway  in  any  building  shall  be  prima  facie  evidence  that  it  was  placed  7 
or  permitted  to  remain  therein  by  the  owner,  lessee,  tenant  or  occupant  8 
of  the  building.  9 


Fire  extin- 
guishers, etc. 
1877,  214, 
§§4,9. 
P.  S.  104, 
H  19,  23. 
1888,426,  §  9. 
1S94,  481, 
§§  34,  39. 
R.  L.  104, 
§§  26,  53. 


Section  24.  Except  in  Boston,  the  basement  and  each  story  of  a 
building  which  is  subject  to  section  twenty-one  shall  be  supplied  with 
means  of  extinguishing  fire,  consisting  of  a  hose  attached  to  a  suitable 
water  supply  and  capable  of  reaching  any  part  of  such  basement  or  story, 
or  of  such  portable  apparatus  as  the  inspector  shall  direct;  and  such 
appliances  shall  be  kept  at  all  times  ready  for  use  and  in  good  condition. 

1913,  655,  §5  21,  52. 


Wooden 
flues,  etc., 
prohibited. 
1885,  326. 
1888.  316,  5  1 
426.  §  8. 

1892,  419. 
§  138. 

1893,  199,  §  1 

1894,  481, 

5§  25,  33,  39. 


Section  25.  Except  in  Boston,  no  wooden  flue  or  air  duct  for  heat- 
ing or  ventilating  purposes  shall  be  placed  or  remain  placed  in  any  build- 
ing subject  to  sections  fifteen  and  twenty-one,  and  no  pipe  for  con\'eying 
hot  air  or  steam  in  such  building  shall  be  placed  or  remain  placed 
within  one  inch  of  any  woodwork,  unless  protected  to  the  satisfaction 
of  the  inspector  by  suitable  guards  or  casings  of  incombustible  material. 


R.  L.  104,  §§  23,  53. 


1913.  655.  §§  22,  52. 


Construction 
of  theatres. 
1877,214,  §  5. 
P.  S.  104,  §  20 
1894,  382,  §  1. 
R.  L.  104, 
5§  36,  53. 
1913,  655. 
§§  23,  52. 
189  Mass.  568. 


Section  26.  Except  in  Boston,  the  audience  hall  in  a  building  erected 
or  designed  to  be  used  in  whole  or  in  part  as  a  theatre,  or  in  which  any 
change  or  alteration  shall  be  made  for  the  purpose  of  using  it  as  a  theatre, 
shall  not  be  placed  above  the  second  floor  of  such  building.  The  au- 
dience hall  and  each  gallery  of  every  such  building  shall,  respectively, 
i'opt'ArG."306.  have  at  least  two  independent  exits,  as  far  apart  as  may  be;  and  if  the 
"'       '     ■  audience  hall  is  on  the  second  floor,  the  stairways  from  said  floor  to  the 

ground  floor  shall  be  enclosed  with  fireproof  walls,  and  shall  have  no  8 
connection  with  the  basement  or  first  floor  of  the  building.  Every  such  9 
exit  shall  have  a  width  of  at  least  twenty  inches  for  e\'ery  one  hundred  10 
persons  which  such  hall,  or  gallery  from  which  it  leads,  is  capable  of  11 
holding;  but  two  or  more  exits  of  the  same  aggregate  width  may  be  sub-  12 
stituted  for  either  of  the  two  recjuired  exits.  None  of  the  recjuired  exits  13 
shall  be  less  than  five  feet  wide;  provided,  that  the  exits  from  a  gallery  14 
capable  of  holding  not  more  than  one  hundred  and  fifty  persons  may  each  15 
be  less  than  five  feet  but  not  less  than  three  feet  wide.  16 


Fire  resisting 
partition, 
curtains,  etc. 
18SS,  207; 
426,  §  1. 
1892,  419, 
§  138. 
1894,481, 
§§  24,  39. 
1900,  335,  §  1. 
R.  L.  104, 
H  37,  63. 
1913,  655, 
§§  24,  52. 


Section  27.  Except  in  Boston,  the  wall  or  partition  between  the  1 
auditorium  and  stage  of  every  theatre  shall  be  fireproof  or  fire  resisting  2 
on  the  stage  side,  for  the  whole  width  of  the  auditorium  and  the  whole  3 
height  of  the  auditorium  or  stage,  as  the  inspector  shall  direct,  and  all  4 
doors  in  such  wall  or  partition  shall  be  fireproofed  and  provided  with  5 
approved  self-closing  devices.  The  proscenium  or  curtain  opening  shall  6 
have  a  fire  resisting  curtain  of  an  incombustible  material,  properly  con-  7 
structed  and  operated  by  appro\'ed  mechanism.  There  shall  be  one  or  8 
more  ventilators  near  the  centre  and  above  the  highest  part  of  the  stage,  9 
equal  in  area  to  one  tenth  of  that  of  the  stage  floor  back  of  the  fire  re-  10 
sisting  cm-tain,  and  arranged  so  as  to  open  automatically  from  heat,  and  11 
by  a  cord  or  cords  from  the  stage  floor,  as  the  inspector  shall  direct.  12 


?nn'spe^*tiqn.  Section  28.  Exccpt  in  Boston  and  as  otherwise  provided  by  law,  1 
if'j2!  4i'j';  ^  ^'  t'^^  inspectors  shall  from  time  to  time  examine  all  buildings  within  their  2 
§  138.  respective  districts  which  are  subject  to  sections  fifteen  to  sixty,  in-     3 


Chap.  143.]  inspection  of  buildings.  1467 

4  elusive.    If  in  the  judgment  of  any  such  inspector  such  building  con-  is94, 4si, 

5  forms  to  the  requirements  of  said  sections  for  buildings  of  its  class,  he  r.  l.'ioi. 

6  shall  issue  to  the  owner,  lessee  or  occupant  thereof,  or  of  any  portion  ilia^'esl. 

7  thereof  used  in  the  manner  described  in  section  twenty-one,  a  certificate  |  op^'a'g.  305. 

8  to  that  effect,  specifying  the  number  of  persons  for  whom  the  egresses 

9  and  means  of  escape  from  fire  are  sufficient.    Such  certificate  shall  con- 

10  tinue  in  force  for  not  more  than  five  years  after  its  date,  but  so  long  as 

11  it  continues  in  force  it  shall  be  concIusi^'e  evidence  of  a  compliance  with 

12  said  section  by  the  person  to  whom  it  is  issued.    It  shall  be  void  if  a 

13  greater  number  of  persons  than  is  therein  specified  are  accommodated  or 

14  employed,  or  assemble,  lodge  or  reside  within  such  building  or  portion 

15  thereof,  or  if  such  building  is  used  for  any  purposes  materially  different 

16  from  the  purpose  for  which  it  was  used  at  the  time  of  the  granting  thereof, 

17  or  if  its  interior  arrangement  is  materially  altered,  or  if  any  egresses  or 

18  means  of  escape  from  fire  in  such  building  at  the  time  of  granting  the 

19  said   certificate  are  rendered  unavailable  or  are  materially  changed. 

20  The  certificate  may  be  revoked  by  an  inspector  at  any  time  upon  WTitten 

21  notice  to  the  holder  thereof  or  to  the  occupant  of  the  premises  for  which 

22  it  was  granted,  and  shall  so  be  re^'oked  if,  in  the  opinion  of  the  inspector, 

23  circumstances  have  so  changed  that  the  existing  egresses  and  means  of 

24  escape  are  not  proper  and  sufficient.     A  copy  of  said  certificate  shall 

25  be  kept  posted  in  a  conspicuous  place  upon  each  story  of  such  building 

26  by  the  occupant  of  the  premises  covered  thereby. 

1  Section  29.     Except  in  Boston,  upon  application  to  an  inspector  for  a  Application 

2  certificate  under  the  preceding  section,  he  shall  issue  to  the  applicant  an  isssfwon  I'. 

3  acknowledgment  thereof,  which  for  ninety  days,  pending  the  granting  §*i'38.*^^' 

4  or  refusal  of  the  certificate,  shall  ha^'e  the  same  effect  as  the  certificate,  If^ls^lJ' 

5  and  such  acknowledgment  mav  be  renewed  by  him  with  the  same  effect  ?.■  h  ^P,' 

6  for  a  further  period,  not  exceeding  ninety  days.  lois,  ess,  §§  26, 52. 

1  Section  30.     Except  in  Boston,  if  any  change  shall  be  made  upon  Notice  of 

2  premises  for  which  such  certificate  has  been  issued  or  in  the  use  thereof  of  bmfding"''* 

3  which  would  render  the  certificate  void  according  to  section  twenty-eight,  isoiitio!  ^  *' 

4  the  person  making  such  change  shall  forthwith  gi\'e  written  notice  thereof  f894*'48i, 

5  to  an  inspector  for  the  district  or  to  the  commissioner  of  public  safety.      ^^  ~^-  ^^■ 

E.  L.  104,  §§  17,  53.  1913,  655,  §§  27,  52. 

1  Section  31.     Except  in  Boston,  if  an  inspector  finds  that  any  building  Notice  of 

2  or  part  thereof  subject  to  sections  fifteen  to  sixty,  inclusive,  fails  to  con-  con{o?m°to 

3  form  thereto,  or  if  any  change  is  made  therein  which  would  render  a  'i^s^s,  42c.,  §  s. 

4  certificate  void  under  section  twenty-eight,  he  shall  give  WTitten  notice  Pjfg*^^' 

5  to  the  owner,  lessee,  occupant  or  agent  in  charge  thereof,  specifying  such  |?^i;^|„^' 

6  additional  provisions,  egresses  or  other  means  of  escape  from  fire  as  in  r.  l.'io4, 

7  his  opinion  may  be  necessary  to  make  it  conform  to  said  section  and  to  1913, 'ess. 

8  "obtain  a  certificate;   and  any  such  owner,  lessee,  occupant  or  agent  in  "^*•^^■ 

9  charge  thereof  failing  to  comply  with  such  notice  for  a  period  of  thirty 

10  days  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  one 

11  thousand  dollars. 

1  Section  32.     If  a  schoolhouse  in  any  city,  except  Boston,  has  not  Schooihouses  in 

2  been  provided  with  a  safe  and  proper  egress  or  other  means  of  escape  from  fiio  escape's. 

3  fire,  as  required  by  sections  fifteen  to  sixty,  inclusive,  within  six  months  4si,  5  40.' 


1468 


INSPECTION   OF  BUILDINGS. 


[Chap.  14.3. 


R.  L.  104.  §  11.  after  the  ■uTitten  notice  provided  for  in  the  preceding  section,  the  mayor,  4 

'  ^  '         for  the  purpose  of  conforming  to  the  provisions  of  this  chapter  relative  5 

to  egresses  or  other  means  of  escape  from  fire  in  schoolhouses,  may,  upon  6 

petition  of  one  hundred  citizens  or  taxpayers  in  such  city,  authorize  the  7 

expenditure  upon  such  sclioolhouse  of  not  more  than  fifteen  per  cent  of  8 

the  cost  thereof,  payable  from  any  money  in  the  treasiu-y  of  that  city  9 

which  is  not  otherwise  appropriated.  10 


re'quire°thKe  SECTION  3.3.     Any  city,  cxccpt  Boston,  may  by  ordinance  provide  that 

to°con^orm'°^'  scctious  fifteen,  sixteen,  twenty-one  to  thirty-one,  inclusive,  forty-se^'en 

iss^'leo'*?'"'  ^'^*^  forty-eight  shall  apply  to  any  building  of  three  or  more  stories  in 

i88s;426;  §  11.  height  within  its  limits. 


1894,  481,  §§  36,  39. 


R.  L.  104,  §§  53,  54. 


1913,  6.55,  §§  29,  52. 


Licenses  for 
theatres,  etc. 
1904.450,  §  2. 
1905.  342, 
§U,2. 

1907,  463. 

1908,  335,  §  1. 
1910,  284,  §  1. 
1913,  055,  §  31. 
213  Mass.  213. 


Section  34.  In  sections  thirtj'-four  to  thirty-eight,  inclusive,  the  1 
term  "licensing  officer"  shall  mean  the  mayor  of  Boston  and  the  com-  2 
missioner  of  public  safety.  In  Boston  the  mayor  and  elsewhere  the  3 
commissioner  of  public  safety  shall  issue  licen.ses  for  theatres,  special  4 
halls  and  public  halls.  He  may  require  such  changes  in  the  structural  .5 
or  other  condition  of  any  building  before  issuing  any  license  as  in  his  6 
opinion  the  public  safety  requires,  but  no  change  shall  be  ordered  in  7 
excess  of  the  requirements  for  a  new  building  of  like  character.  In  8 
buildings  existing  on  No\ember  first,  nineteen  hundred  and  thirteen,  9 
an  equivalent  of  the  conditions  reciuired  by  law  may  be  accepted  by  10 
the  licensing  officer;  pro\aded,  that  such  equivalents  are  set  forth  in  11 
detail  in  the  license.  The  Ucenses  provided  for  herein  shall  be  con-  12 
spicuously  posted  near  the  main  entrance  of  the  theatre,  special  hall  13 
or  pubhc  hall.  Licenses  for  theatres,  except  in  Boston,  shall  expire  on  14 
September  first,  for  special  halls  on  August  first,  and  for  public  halls  on  15 
July  first  of  each  year.  16 


Liability  of 
licensee, 
1904,  4,50,  §  3. 
1913,  655,  §  32 


Section  35.  The  licensee  shall  be  responsible,  civilly  and  criminally, 
for  non-compliance  with  the  laws  applicable  to  the  theatre,  special  hall 
or  public  hall  coA'cred  by  his  license,  and  for  non-compliance  with  the 
conditions  thereof.  The  licensing  officer  shall  cause  a  complete  inspec- 
tion of  all  theatres  to  be  made  once  in  each  month,  of  special  halls  and 
public  halls  once  in  every  six  months,  and  as  much  oftener  as  circum- 
stances may  require. 


Inspection  of 
tiieatres,  etc. 
1904,  4.50,  §  4. 
1913,  655,  §  33. 


Section  36.  Every  inspection  of  theatres,  special  halls  or  public  halls  1 
shall  cover  all  details  relating  to  the  condition  of  the  building  as  regards  2 
the  safety  of  life  and  property.  The  inspector  shall  make  a  signed  re-  3 
port  as  to  all  such  details  upon  a  tabulated  inspection  blank,  the  form  of  4 
which  shall  be  determined  by  the  licensing  officer.  The  forms  of  such  5 
blanks  may  be  adapted  to  the  circumstances  of  the  different  classes  of  6 
buildings,  but  shall  be  such  as  to  enable  the  inspectors  to  report  a  rating  7 
on  the  points  and  in  the  form  hereinafter  specified,  and  shall  include  a  8 
detailed  table  of  legal  requirements,  with  a  statement  as  to  compliance  9 
or  non-compliance  with  each.  All  inspectors  inspecting  theatres,  special  10 
halls  and  public  halls  shall  on  the  first  of  each  week  forward  to  the  licens-  11 
ing  officer  the  reports  of  their  inspections  of  the  previous  week,  and  shall  12 
rate  each  theatre,  special  hall  or  public  hall  on  the  following  points  in  the  13 
following  form :  14 


Chap.  US.]  inspection  of  buildings.  1469 

15  1.  Compliance  with  existing  laws,  non-compliance  in  any  particular 

16  to  be  specified. 

17  2.  The  following  ratings  of  each  building  as  to  the  safety  of  the  au- 

18  dience,  in  the  judgment  of  the  inspectors,  in  the  light  of  improved  methods 

19  of  insuring  safety: 

Condition,  whether  poor,  fair,  good  or  excellent.  Remarks. 

a.  Structural  condition. 

b.  Facility  of  escape  of  audience. 

c.  Heating  apparatus. 

d.  Water  supply. 

e.  Lighting  apparatus. 

f.  Condition  of  fire  apparatus. 

g.  Condition  of  sprinklers. 

h.  Condition  of  fire  resisting  curtain. 

i.  Protection  against  neighborhood  hazard. 

j.  General  condition  of  appliances  and  apparatus. 

k.  General  condition  of  stage. 

Rating  as  a  whole. 

With  regard  to  safety  of  audience. 

20  And  such  other  points  as  in  the  opinion  of  the  licensing  officer  may  be 

21  suitable.    These  reports  and  ratings  shall  be  signed  by  the  inspectors, 

22  and  shall  give  the  date  of  the  inspection,  with  such  remarks  upon  the 

23  condition  of  each  theatre,  special  hall  and  public  hall  as  may  be  suitable  to 

24  give  notice  of  danger  or  to  give  confidence  in  the  safety  of  such  buildings. 
2.5  After  each  inspection  of  a  theatre,  special  hall  or  public  hall,  the  inspector 
2()  shall  post  a  notice  in  conspicuous  type,  near  the  main  entrance  thereof, 
27  in  the  following  form : 

This  theatre  (or  special  hall)  (or  public  hall)  has  been  inspected  by  inspector 
(name  of  inspector)  on  (date) 

1  Section  37.     The  full  inspection  reports  of  theatres,  special-halls  and  ke^''"^^  gi'^''^ 

2  public  halls  shall  be  kept  on  file  by  the  licensing  officer,  but,  except  as  laoi.  450.  §  6. 

3  hereinafter  provided,  shall  not  be  open  to  examination  by  the  public 

4  until  the  expiration  of  one  month  from  the  time  when  they  were  rendered, 

5  except  with  the  consent  of  the  licensing  officer.    Every  licensee  shall  be 

6  entitled  to  examine  the  full  reports  of  his  own  building  at  any  time.    The 

7  licensing  officer  shall  make  a  full  report  annually  of  the  condition  of  all 

8  theatres,  special  halls  and  public  halls,  which  shall  be  open  to  examina- 

9  tion  by  the  public  at  all  times.    The  reports  of  inspectors  shall  be  public 

10  records  of  matters  of  public  interest;   and  a  fair  publiciition  of  these 

11  reports,  or  parts  thereof,  or  comment  thereon,  by  any  person,  in  news- 

12  papers  or  otherwise,  shall  be  privileged. 

1  Section  38.     A  certified  copy  of  all  ratings  and  conclusions  of  the  Copies  of 

2  inspectors  in  respect  to  any  licensed  theatre,  special  hall  or  public  hall  t"b?sent'to 

3  shall  be  delivered  or  mailed  by  the  licensing  officer  to  the  licensee  at  the  Penalty  for 

4  building.    If  any  inspector  shall  report  that  the  laws  of  the  conditions  of  ""fh^r'dcJ"'"'^^ 

5  the  license  are  not  complied  with  by  any  licensee,  the  licensing  officer  ^^°f^-  ^g?'  5  s. 

6  may  notify  the  licensee,  fixing  a  time  within  which  he  shall  comply  with  §§2,'3._  '     _ 

7  the  law  and  the  conditions  of  the  license.     If  at  the  expiration  of  such 

8  time  there  has  not  been  such  compliance,  the  licensing  officer  shall  gi\-e 

9  a  hearing  to  the  licensee;  and  if  upon  investigation  he  shall  find  that 

10  there  is  cause,  he  shall  revoke  the  license.    The  licensing  officer  may,  if 

1 1  in  his  opinion  the  public  safety  requires  it,  order  any  theatre,  special  hall 


1470 


INSPECTION   OF  BUILDINGS. 


[Chap.  143. 


Copy  of 
ratings,  etc., 
may  be  posted. 
1904.  450.  §  9. 
1913,  635,  I  30. 


Penalty  for 
false  state- 
ment, etc. 
1904,  430,  5  13. 
1913,  655,  §  37. 


or  public  hall  to  be  closed  pending  a  hearing  upon  the  revocation  of  the  12 
license,  and  any  person  failing  to  comply  with  such  order  shall  be  punished  13 
by  a  fine  of  not  less  than  fifty  nor  more  than  one  thousand  dollars.  14 

Section  39.     Any  licensee  may  post  upon  his  premises  a  certified  1 

copy  of  the  complete  table  of  ratings  and  conclusions  relating  to  the  2 

theatre,  special  hall  or  public  hall  covered  by  his  license,  but  he  shall  not  3 

post  an  incomplete  copy  of  such  table.  4 


Section  40.     Any  person  having  any  duty  to  perform  under  this  1 

chapter  in  connection  with  the  licensing  or  inspection  of  theatres,  special  2 

halls  or  public  halls  ^^■ho  wilfully  makes  any  false  statement  or  report  3 

or  any  false  record  of  any  statement,  report  or  rating  as  to  any  such  4 

theatre,  special  hall  or  public  hall  shall  be  punished  by  a  fine  of  not  more  5 

than  one  thousand  dollars  or  by  imprisoiunent  for  not  more  than  one  6 

vear.  7 


Penalty  for 

giving  or  re- 

cei^'ing  free 

pass. 

1904,  450,  5  14. 

1913.  655,  I  38. 


Section  41.     Any  officer  or  person  having  any  duty  in  any  way  con-  1 

nected  with  the  inspection  of  theatres,  special  halls  or  public  halls,  who  2 

requests  for  himself  or  another,  or  accepts  or  uses  any  ticket  or  pass  or  3 

privilege  of  admission,  or  admission,  to  any  theatre,  special  hall  or  public  4 

hall  for  which  he  is  to  pay  or  has  paid  either  nothing  or  a  price  less  than  5 

that  demanded  of  the  public  generally,   and  any  o\\Tier,   proprietor,  6 

manager,  lessee,  agent  or  employee  of  any  theatre,  special  hall  or  public  7 

hall,  or  any  other  person  who  issues,  delivers,  offers  or  allows  any  such  8 

ticket,  pass,  privilege  or  admission  to  any  such  officer  or  person,  or  to  9 

any  other  person,  at  the  request,  solicitation,  procurement  or  with  the  10 

connivance  of  any  such  officer  or  person,  shall  be  punished  by  a  fine  of  11 

not  less  than  one  hundred  nor  more  than  one  thousand  dollars.  12 


Ventilation 
and  sanitation. 
Inspection  by 
department  of 
public  health. 

1913.  655, 
§§40.41. 

1914,  792,  §  1. 
3  Op.  A.  G.  192. 


Joint  owner, 
etc.,  may 
p^o^^de  fire 
escape. 


Section  42.     Every  public  building  as  defined  in  section  one,  except  1 

schoolhouses  in  which  public  or  private  instruction  is  afforded  to  less  2 

than  eleven  pupils  at  one  time,  shall  be  kept  clean  and  free  from  efSuvia  3 

arising  from  any  drain,  pri\y  or  nuisance,  shall  be  provided  with  a  4 

sufficient  number  of  proper  water  closets,  earth  closets  or  privies,  and  5 

shall  be  ventilated  in  such  a  manner  that  the  air  shall  not  become  so  6 

impure  as  to  be  injurious  to  health.    If  it  appears  to  an  inspector  that  7 

further  or  different  heating,  ventilating  or  sanitary  provisions  are  re-  8 

quired  in  any  such  public  building,  in  order  to  conform  to  the  require-  9 

ments  of  this  section,  and  that  such  requirement  can  be  provided  with-  10 

out  unreasonable  expense,  he  may  issue  a  ^\Titten  order  to  the  proper  11 

person  or  authority,  directing  such  heating,  ventilating  or  sanitary  pro-  12 

visions  to  be  provided.     A  school  committee,  public  officer  or  person  13 

who  has  charge  of,  owns  or  leases  any  such  public  building,  who  neglects  14 

for  four  weeks  to  comply  with  the  order  of  such  inspector,  shall  be  15 

punished  by  a  fine  of  not  more  than  one  hundred  dollars.    The  district  16 

health  officers  or  such  other  officers  as  the  department  of  public  health  17 

may  from  time  to  time  appoint  shall  make  such  examinations  of  school  18 

buildings  subject  to  this  section  as  in  the  opinion  of  the  department  19 

the  protection  of  the  health  of  the  pupils  may  require.     This  section  20 

shall  not  apply  to  Boston.  21 

Section  43.     Except   in   Boston,   if   a  building  subject  to  sections  1 

fifteen  to  sixty,  inclusive,  is  owned,  leased  or  occupied,  jointly  or  in  2 


Chap.  143.]  inspection  of  buildings.  1471 

3  severalty,  any  owner,  lessee  or  occupant  may  affix  to  anj'  part  of  the  isss,  426.  §  e. 

4  outside  wall  of  such  building  any  means  of  egress  or  of  escape  from  fire  §  iss.     ' 

5  specified  and  described  by  an  inspector,  notwithstanding  the  objection  §§^31,^3*9.' 

6  of  any  other  such  owner,  lessee  or  occupant;   and  such  means  of  egress  f§4s,^5|; 

7  or  of  escape  may  project  over  the  highway,  or  o\er  a  right  of  way  for  isis^ 655, 

8  a  distance  not  exceeding  one  half  the  width  of  the  right  of  way. 

1  Section  44.     The  keeper  of  a  hotel,  boarding  or  lodging  house  or  watchmen  in 

2  family  hotel  containing  one  hundred  or  more  sleeping  rooms,  and  being  isss.  25i,§  1. 

3  four  or  more  stories  high,  shall  have  therein  at  least  two  competent  r!"i,;  loii  §  29. 

4  watchmen,  each  properly  assigned,  and  each  on  duty  between  the  hours  '^^^'  '^^°'  ^  ''^■ 

5  of  nine  o'clock  at  night  and  six  o'clock  in  the  morning.    The  keeper  of  Penalty,  §  40. 

6  every  hotel,  boarding  or  lodging  house  or  family  hotel  containing  fifty 

7  or  more  sleeping  rooms,  but  less  than  one  hundred,  and  being  three 
S  stories  high,   shall  have  between  said  hours  at  least  one  competent 

9  watchman  on  dutj'  therein.    In  all  such  hotels,  lodging  houses  or  family 

10  hotels,  the  halls,  corridors  and  stairways  shall  be  properly  lighted  at 

11  night,  and  a  red  light  shall  be  kept  during  the  night  at  the  top  and 

12  bottom  of  each  flight  of  stairs;   and  one  or  more  proper  alarms  or  gongs, 

13  capable  of  being  heard  throughout  the  house,  shall  always  remain  easy 

14  of  access  and  ready  for  use  in  every  such  building  to  give  to  the  in- 

15  mates  warning  of  fire.     The  keeper  of  every  such  hotel,  boarding  or 

16  lodging  house  or  family  hotel  shall  keep  a  notice  descriptive  of  such 

17  means  of  escape  conspicuously  posted  in  every  sleeping  room. 

1  Section  45.     Except  in  Boston,  the  keeper  of  any  such  hotel,  board-  oJ ^e^eda'nT 

2  ing  or  lodging  house  or  family  hotel  who  adopts  a  system  of  electric  ^|8":i°223  §  1 

3  watch  clocks  which  register  at  the  office  the  movements  of  the  watch-  R-  l!  iw] 

4  men  throughout  the  house,  or  who  adopts  a  system  of  thermostats  or  iQi.-i.'ess. 

5  fire  alarm  bells  in  the  rooms,  or  who  provides  a  watchman's  watch  with 

6  key  stations,  the  record  of  which  is  kept  at  the  office,  shall  not  be  re-  •^^°''  '^''  ^  *''■ 

7  quired  to  maintain  more  than  one  watchman  in  addition  to  the  regular 

8  night  clerk  and  porters;  provided,  that  the  system  or  device  so  adopted 

9  or  provided  is  approved  by  the  inspector. 

1  Section  46.     The  aldermen  of  any  city,  except  Boston,  and  the  select-  Further  pro- 

2  men  of  towns  may  prescribe  additional  night  watch  to  be  kept  and  tection  of  hfe 

3  further  provision  for  the  prevention  of  fires  and  for  the  better  protection  "crrbed.  '"^'^ 

4  of  life  in  case  of  fire  to  be  made  by  the  keepers  of  hotels,  boarding  or  flsa'^si, 

5  lodging  houses  or  family  hotels  within  their  cities  and  towns.     Who-  1884, 223,  §  2. 

6  ever  neglects  or  refuses  to  comply  with  any  provision  of  this  or  the  two  Xgi^^^^a 

7  preceding  sections  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  iii|: '^||' 

8  more  than  one  thousand  dollars. 

1  Section  47.     The  owner,  lessee,  proprietor  or  manager  of  a  hotel  ^s°PpesTn 

2  which  is  not  otherwise  suitably  provided  with  fire  escapes,  or  of  a  lodg-  jggo  go?"'?  1 

3  ing  house  which  contains  eight  or  more  rooms  above  the  second  story,  isw!  341- 

4  shall  place  or  cause  to  be  placed  a  knotted  rope,  or  better  appliance,  11.  l.  104.  §  33. 

5  for  use  as  a  fire  escape  in  every  room  of  such  hotel  or  lodging  house  3  op!  a.  g.  319. 

6  used  as  a  sleeping  room,  except  rooms  on  the  ground  floor.     One  end  Penalty,  §  48. 

7  of  such  rope  shall  be  securely  fastened  to  a  suitable  iron  hook  or  eye 

8  securely  screwed  into  one  of  the  timbers  next  adjoining  the  frame  of  a 

9  window,  or  into  the  frame  of  a  window,  of  said  room,  at  least  five  feet 


1472 


INSPECTION   OF  BUILDINGS. 


[Ch.\p.  143. 


from  the  floor,  and  the  rope  shall  at  all  times  be  kept  coiled  and  ex-  10 
posed  to  the  plain  view  of  the  occupant  of  the  room.  The  coil  shall  11 
be  fastened  in  such  manner  as  to  be  easily  and  quickly  loosened  and  12 
uncoiled.  The  rope  shall  contain  knots  not  more  than  eighteen  inches  13 
apart,  a  loop  at  the  end  at  least  three  inches  in  length,  shiill  not  be  14 
less  than  one  half  inch  in  diameter,  and  shall  be  of  sufficient  length  to  15 
reach  from  such  iron  hook  or  eye  to  the  ground.  Such  rope,  iron  hook  16 
or  eye  and  fastenings  shall  be  of  sufficient  strength  to  sustain  a  weight  17 
of  four  hundred  pounds,  and  plain  directions  for  the  use  of  such  rope  18 
or  other  appliance  shall  be  printed  and  posted  within  six  inches  of  the  19 
hook  or  eye  to  wliich  the  rope  is  fastened.  Tliis  section  shall  not  apply  20 
to  Boston.  21 


Inspection  of 
hotels,  etc. 
1800.  307, 
«2,3. 
1894.481, 
§§45,68. 
R.  L.  104, 
§§  34,  35. 
1913,  655,  §  46. 


Section  48.  The  inspector  of  buildings  of  each  city  and  town,  if  1 
there  be  any,  otherwise  the  chief  engineer  of  the  fire  department,  if  2 
there  be  any,  otherwise  such  person  as  the  mayor  of  a  city  or  the  select-  3 
men  of  a  town  shall  designate,  shall  annually  in  the  month  of  April  4 
inspect  every  room  of  every  hotel  and  lodging  house  of  eight  or  more  5 
sleeping  rooms  above  the  second  story  in  his  city  or  town  and  ascer-  6 
tain  if  the  preceding  section  is  being  complied  with,  and  sliall  report  7 
the  condition  of  the  rope  or  other  appliance  to  the  commissioner  of  8 
public  safety,  upon  forms  to  be  furnished  by  him.  'S^Tioever  \iolates  9 
any  pro\dsion  of  this  or  the  preceding  section  shall  be  punished  by  a  10 
fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not  11 
more  than  six  months,  or  both.    This  section  shall  not  apply  to  Boston.  12 


Certificate  of 
inspector  pre- 
requisite to 
license. 

1888,  426,  §  7. 
1892,  419, 
§  138. 
1894,  481, 
§§  32.  39. 
R.  L.  104, 
§§  49,  53. 
1913,  655, 
§§  48.  52. 


Section  49.  Except  in  Boston,  a  license  which  is  required  by  law, 
ordinance  or  by-law  to  authorize  any  building  or  part  thereof  to  be 
used  for  any  purpose  specified  in  section  twenty-one  shall  not  be  granted 
until  a  license  by  the  commissioner  of  public  safety,  or  a  certificate  by 
an  inspector,  as  required  by  sections  fifteen  to  sixty,  inclusi\'e,  shall 
have  been  issued  therefor,  and,  when  granted,  shall  not  continue  in 
force  after  the  expiration  of  such  license  or  certificate. 


Penalty  for 
hindering  in- 
spector, etc. 
1904,  4.50,  §  12. 
1908,  389,  §  2. 
1913,  655,  §  49. 


Section  50.  Any  person  who  hinders  or  prevents  or  attempts  to 
prevent  the  commissioner  of  public  safety,  the  chief  of  inspections  of 
the  department  or  any  inspector  from  entering  any  building,  structure 
or  enclosure  or  part  thereof  in  the  performance  of  his  duty  in  the  en- 
forcement of  the  laws  of  the  commonwealth  relating  thereto  shall  be 
punished  by  a  fine  of  not  less  than  fifty  nor  more  than  one  himdred 
dollars. 


Owner  must 
see  that  law  is 
obeyed. 
1877,214,5  8. 

1881,  137, 
§  2;  195. 

P.  .S.  104,  §  22. 

1882,  266,  §  3. 
1888,  426,  §  12. 
1894,  382,  §  2; 
481,  §§  37,  39. 
R.  L.  104, 

§§  60,  53. 
1913,  655, 
§§  50,  62. 
161  Mass.  35. 


Section  51.  Except  in  Boston,  the  owner,  lessee  or  occupant  of  a  1 
theatre,  factory,  workshop  or  manufactm'ing  establishment,  or  who-  2 
ever  owns  any  building  or  part  thereof  mentioned  in  and  subject  to  3 
sections  twenty-one,  twenty-four  to  twenty-eight,  inclusive,  and  thirty,  4 
or  controls  the  use  thereof,  shall  cause  the  provisions  thereof  to  be  5 
observed,  and  such  person  shall  be  liable  to  any  person  injured  for  all  6 
damages  caused  by  a  violation  of  the  provisions  of  said  sections.  No  7 
criminal  prosecution  shall  be  begun  for  such  violation  until  four  weeks  S 
after  wTitten  notice  to  such  person  has  been  given  by  an  inspector  of  any  9 
changes  necessary  to  be  made  in  order  to  conform  to  said  sections,  nor  10 
if  such  changes  shall  have  been  made  in  accordance  with  such  notice.  11 


Chap.  143.]  inspection  of  buildings.  1473 

12  Notice  to  one  member  of  a  firm  or  to  the  clerk  or  treasurer  of  a  cor- 

13  poration  or  to  the  person  in  charge  of  the  building  or  part  thereof  shall 

14  be  sufficient  notice  hereunder  to  all  members  of  any  firm  or  corporation 
1.5  owning,  leasing  or  controlling  the  building  or  any  part  thereof.  Such 
IG  notice  may  be  served  personally  or  sent  by  mail. 

1  Section  52.     No  person  shall  occupy  or  use  any  building  or  part  ^^f"^^^'^^'' 

2  thereof  as  a  theatre,  special  hall,  public  hall,  miscellaneous  hall,  place  as  theatre, 

3  of  assemblage  or  place  of  public  resort  until  a  license  therefor  has  been  looe,  los,  §  i. 

4  issued  by  the  commissioner  of  pubhc  safety  or  the  mayor  of  Boston,  or  Igos'.  335,' 

5  a  certificate  therefor  by  an  inspector  or  an  inspector  of  the  building  1910,^3- 

6  department  of  Boston.     The  certificate  of  the  inspector  shall  be  con-  igjg^ggj 

7  elusive  e^'idence  of  a  compliance  with  sections  fifteen  to  sixty,  inclusive,  §§  39, 51.' 

8  for  such  use  of  a  hall  as  he  shall  set  forth  in  detail  in  the  certificate, 

9  and  shall  be  conspicuously  posted  near  the  main  entrance  of  the  hall. 

10  Molations  of  tliis  section  or  of  the  conditions  of  a  hcense  or  certificate 

11  shall  be  punished  by  a  fine  of  not  less  than  twenty-five  nor  more  than 

12  one  thousand  dollars  or  by  imprisonment  for  not  more  than  one  year, 

13  and  the  license  or  certificate  may  be  revoked. 

1  Section  53.     Whoever,  being  the  owner,  lessee  or  occupant  of  any  General 

2  building  or  part  of  a  building  described  in  section  twenty-one,  ^•iolates  iss2,  26b,  §  .■?. 

3  any  provision  of  sections  fifteen  to  fifty-two,  inclusi\-e,  for  which  no  lUg;  lit]  i  ^3. 

4  other  penalty  is  specifically  prescribed,  shall  be  punished  by  a  fine  of  48i!'§§*60,^62.' 

5  not  less  than  fifty  nor  more  than  five  hundred  dollars. 

R.  L.  104,  §§  55.  56.  1913,  655,  §  53. 

1  Section  54.     Sections   fifteen   to   fifty-two,    inclusive,    .shall,    except  Enforcement. 

2  when  otherwise  specifically  provided,  be  enforced  by  the  commissioner  r.  l!io4!§46. 

3  of  public  safety,  the  chief  of  inspections  of  the  department  and  the  inioilst',  |T' 

4  inspectors.     The  commissioner  of  pubhc  safety  shall  issue  regulations  655?§'54*!'^^' 

5  necessary  for  their  uniform  enforcement.     All  sections  of  tliis  chapter 
G  wliich  apply  to  Boston  shall  be  enforced  by  the  building  commissioner. 

1  Section  55.     Any  person  aggrieved  by  an  order,  requirement  or  direc-  Appeal. 

2  tion  of  an  inspector  under  any  of  the  preceding  sections  may,  within  isw!  tlf,  I  k 

3  thirty  days  after  the  service  thereof,  appeal  to  a  judge  of  the  superior  looV,  45o'.|\o. 

4  court  for  the  county  where  the  building  to  A\hich  such  order,  require-  \Iqj[ Igg'  ^  ■* 

5  ment  or  direction  relates  is  situated  for  an  order  forbidding  its  enforce-  Vf^'^^'^' 

6  ment;    and  after  such  notice  as  said  court  shall  direct  to  all  parties  l^i^^^i^, 

7  interested,  a  hearing  may  be  had  before  the  court  at  an  early  and  con-  i9i7','i56,  §  2. 

8  venient  time  and  place  fixed  by  it;    or  the  court  may  appoint  three    -  ^  ''^• 

9  disinterested  persons,  skilled  in  the  subject  .matter  of  the  contro^■ersy, 

10  to  examine  the  matter  and  hear  the  parties;    and  the  decision  of  said 

11  court,  or  the  written  decision  under  oath  of  a  majority  of  said  experts, 

12  filed  in  the  office  of  the  clerk  of  courts  in  said  county  within  ten  days 

13  after  such  hearing,  may  alter,  aimul  or  affirm  such  order,  requirement 

14  or  direction.     Such  decision  or  a  certified  copy  thereof  shall  have  the 

15  same  authority,  force  and  effect  as  the  original  order,  requirement  or 
IG  direction  of  the  inspector.    If  such  decision  annuls  or  alters  the  order, 

17  requirement  or  direction  of  the  inspector,  the  court  shall  order  the 

18  inspector  not  to  enforce  his  order,  requirement  or  direction,  and  in 

19  every  case  the  certificate  required  by  law  shall  thereupon  be  issued  by 

20  said  court  or  by  said  experts. 


1474 


INSPECTION  OF  ELEVATORS. 


[Chap.  143. 


Mplrts'  Section  56.     The  court  may  award  reasonable  compensation  to  such  1 

1890. 43S,  experts,  to  be  paid  by  the  county  in  which  the  appHcation  for  an  order  2 

1894,481.  of  the  court  was  made,  if  the  order,  recjuirement  or  direction  of  the  3 

R  L  104.  inspector  is  altered  or  annulled,  otherwise  by  the  applicant.     If  the  4 

iisofl.'ioo.  1 4.  order,  requirement  or  direction  of  the  inspector  is  affirmed  by  the  court  5 

1913!  655!  §  56.  or  the  experts,  costs  shall  be  taxed  against  the  applicant  as  in  civil  6 

cases,  and  shall  be  paid  into  the  treasury  of  the  said  county.  7 


Restraining 

illeg.al  erection, 

etc. 

188S.  316.  §  2; 

426,  §  12. 

1893,  199,  §  2. 

1894,  382.  §  2; 
481.  §§  26,  38. 
R. L.  104, 
§§51,53. 


Section  57.     The  supreme  judicial  or  superior  court  may,  upon  the  1 

petition  of  an  inspector  or,  in  Boston,  of  the  building  commissioner,  2 

temporarily  or  permanently  restrain  the  erection,  construction,  alter-  3 

ation,  use  or  occupation  of  a  building  in  \-iolation  of  any  pro\ision  of  4 

sections  fifteen  to  fifty-two,  inclusive.  5 

1910,  2S4,  §  1.  1913,  655,  §  57. 


Concurrent 
jurisdiction  of 
inferior  courts. 
1906.  105,  §  6. 
1908,  335,  §  3; 
389,  §  3. 


Section  58.  District  courts  shall  have  jurisdiction  concurrently  with  1 
the  superior  court  of  prosecutions  and  proceedings  at  law  under  sections  2 
three  to  fifty-two,  inclusive.  i9i3, 655,  §  58.  3 


Enforcement 
of  inspectors' 
orders. 

1904,450.  §  11. 
190G,  105,  §  5. 
1910,  2.84,  §  1. 
1913,  655,  §  59. 


Section  59.     The  supreme  judicial  or  superior  court  may,  upon  the  1 

application  of  the  commissioner  of  public  safety,  the  chief  of  inspec-  2 

tions  of  the  department  or  any  inspector  or,  in  Boston,  of  the  building  3 

commissioner,  enforce,  by  any  suitable  process  or  decree,  any  pro\'ision  4 

of  sections  fifteen  to  fifty-two,  inclusive,  and  any  order  or  requirement  5 

of  any  person  made  under  authority  thereof.  6 


Restraining 
illegal  use, 
etc.,  of 
buildings. 
1899,  326. 
R.  L.  104,  §  52. 
1913,  655.  §  60. 


Section  GO.     The  supreme  judicial  or  superior  court  may  restrain  1 

the   illegal    placing,    maintenance    or    use    of    any    building,    structure  2 

or  other  thing.     It  may,  upon  the  petition  of  a  city  or  town  for  such  3 

relief,   require  the  removal  of  any  such   building,   structure  or  other  4 

thing  by  the  owner,  and  may  authorize  the  city  or  town,  in  default  of  5 

such  removal  by  the  owner,  to  remove  it  at  his  expense.     Upon  such  6 

petition,   the  defendant   shall  be  presumed   to  have  acted   without  a  7 

license  or  authority  until  he  proves  the  contrary.  8 


Notice  to 
assessor.'*  of 
permits  for 
building. 
1913,  676,  §  1. 


Section   61.     The  inspector  of  buildings  in  every  city  and  town  1 

having  such  an  officer  shall  give  written  notice  to  the  assessors  thereof  2 

of  the  granting  by  him  of  permits  for  the  construction  of  any  building  3 

therein  or  for  any  substantial   alteration  therein  or  addition  thereto.  4 

Such  notice  shall  be  given  within  seven  days  after  the  granting  of  each  5 

permit,  and  shall  state  the  name  of  the  person  to  whom  the  permit  6 

was  granted  and  the  location  of  the  building  to  be  constructed  or  al-  7 

tered  or  to  which  an  addition  is  to  be  made.  8 


Installation 
and  inspection. 
1901,  43C. 
R.  L.  104. 
S27. 

1913,  806, 
§§  1,7. 

189  Mass.  580. 

190  Ma,ss.  518. 
200  Mass.  200. 
204  Mass.  559. 


ELEVATORS. 

Section  62.     In  cities  and  towns  not  having  a  building  department  1 

or  an  inspector  of  buildings,  the  installation  and  alteration  of  all  ele-  2 

vators  shall  be  under  the  supervision  of  the  inspectors  of  the  division  3 

of  inspection  of  the  department.     In  cities  and  towns  ha\ang  an  in-  4 

spector  of  buildings  or  a  person  acting  as  such,  the  installation  and  al-  5 

teration  of  all  elevators  shall  be  under  his  supervision.     No  elevator  G 


Ch.\P.    143.]  INSPECTION   OF  ELEVATORS.  1475 

7  shall  be  installed  or  altered  until  a  copy  of  the  plans  and  specifications  213  Mass.  247. 

8  of  such  elevator  or  of  the  proposed  alterations  shall  have  been  filed  by 

9  the  owner  of  the  premises  where  the  elevator  is  to  be  installed  or  altered,    '^"''  '^'    '*' 

10  or  by  the  manufacturer  of  the  elevator,  with  the  inspector  or  building 

11  inspector  having  jurisdiction,  and  a  certificate  of  approval  or  a  speci- 

12  fication  of  requirements  shall  have  been  issued  by  him.    The  inspectors 
1.3  and  inspectors  of  buildings  or  the  departments  of  buildings  of  cities  and 

14  towns  shall  enforce  the  regulations  made  by  the  board  of  elevator  regu- 

15  lations  as  hereafter  provided. 

1  Section  6.3.     On  completion  of  the  work  of  installation  or  alteration,  Test  of  safety 

2  the  manufacturer  of  the  elevator  or  the  person  making  the  alterations  igls^loe.  §  2. 

3  shall  make  a  practical  test  of  the  safety  devices  of  the  elevator  in  the 

4  presence  of  the  inspector  ha^■ing  jurisdiction  thereof;  and  if  the  test  is 

5  satisfactory  to  him,  he  shall  issue  a  certificate  approving  the  elevator  and 

6  safety  devices  thereof. 

1  Section  64.     All    elevators    shall    be    thoroughh^    inspected    and    a  Report  of 

2  practical  test  made  of  the  safety  de^•ices  required  therefor  at  intervals  igTsTsoii"'!  3. 

3  of  not  more  than  one  year,  and  at  such  other  times  as  may  be  deemed 

4  necessary  by  the  inspector  having  jurisdiction  thereof.     Within  ten 

5  days  after  the  inspection,  he  shall  report  the  result  thereof  to  the  com- 

6  missioner  of  public  safety,  upon  forms  to  be  furnished  by  him.     This 

7  requirement  for  the  making  of  inspection  reports  shall  not  apply  to 

8  Boston. 

1  Section  65.     If    in    the  judgment  of  any   inspector  having  juris-  Certificate  of 

2  diction  thereof  an  elevator  is  safe,  and  if  the  elevator  has  been  con-  beposted" in° 

3  structed  in  the  manner  required  by  law  or  by  the  regulations  of  the  isss.'m. 

4  board  of  elevator  regulations,  the  inspector  shall  issue  a  certificate  to  ^^l-  jq];  |  g^; 

5  that  effect  to  the  owner  of  the  elevator  or  to  the  person  in  charge  }^j3'|gjs4 

6  thereof,  who  shall  post  the  certificate  in  a  conspicuous  place  in  or  near  227  Mass'.  415. 

7  the  cab  or  car  of  such  elevator.     Otherwise,  the  inspector  shall  im-  Penalty.  §  71. 

8  mediately  post  conspicuously  upon  the  entrance  or  door  of  the  cab  or 
9' car  of  such  elevator,  or  upon  the  elevator,  a  notice  of  its  dangerous 

10  condition,  and  shall  prohibit  the  use  of  the  elevator  until  it  has  been 

11  made  safe  to  his  satisfaction.     No  person  shall  remove  such  notice  or 

12  operate  such  elevator  until  the  inspector  has  issued  his  certificate  as 

13  aforesaid. 

1  Section  66.     Any  owner,  operator  or  person  in  charge  of  an  elevator  Report  of 

2  or  any  person  employed  to  inspect  an  elevator  shall,  if  he  thinks  such  o'f'dcf™Uv^e" 

3  elevator  is  unsafe,  make  a  written  report  thereof  to  the  inspector  having  igis.'sou,  §  5. 

4  jurisdiction  thereof,  who  shall  forthwith  inspect  such  elevator.     If  any  penalty,  §  71. 

5  accident  occurs  to  an  elevator,  the  operator,  person  in  charge  or  owner 

6  having  knowledge  thereof  shall  inunediately  report  such  accident  to  the 

7  inspector  having  jiu-isdiction,  who  shall  forthwith  inspect  such  elevator. 

1  Section  67.     Any  person  engaged  in  the  inspection,  alteration,  con-  Petition  for 

2  struction,  repair  or  operation  of  elevators  may  from  time  to  time,  by  regiSo'ns. 

3  written  petition  to  the  commissioner  of  public  safety,  request  that  rules  ii\t\  fii,  ^  ^' 

4  and  regulations  established  by  a  board  of  elevator  regulations  hereto-  ^  ^'^''• 

5  fore  or  hereafter  appointed  be  altered  or  amended.    The  commissioner 


1476 


INSPECTION    OF   CINEMATOGRAPHS. 


[Chap.  143. 


may  grant  public  hearings  upon  such  petition,  and  if  he  deems  it  advis-  G 
able  may  appoint  a  new  board  of  elevator  regulations  as  provided  in  7 
section  eleven  of  chapter  twenty-two.  8 


Board  to 
amend  regu- 
lations. 
1913.  S06.  §  6. 
221  M.ass.  489. 

231  Mass.  151. 

232  Mass.  563. 


Section  68.     The  board  of  elevator  regulations  shall  frame  amend-  1 

ments  to  the  regulations  relating  to  the  construction,  installation,  al-  2 

teration  and  operation  of  all  elevators,  and  relative  to  the  location,  3 

design  and  construction  of  shafts  or  enclosures  for  elevators,  safety  4 

devices,  gates  and  other  safeguards,  protection  against  the  elexator  or  5 

hoisting  machinery,  and  means  to  prevent  the  spread  of  fire,  and  also  6 

amendments  to  the  regulations  designed  to  make  uniform  the  work  of  7 

the  inspectors  of  the  di\-ision  of  inspection  of  the  department  and  of  8 

inspectors  of  buildings  throughout  the  commonwealth.  9 


Establishment 
of  regulations. 
1913,  800, 
§§7,8. 
1919,  350, 
§§  99,  100. 


Section  69.     The  board  of  elevator  regulations  shall,  within  three  1 

months  after  its  members  are  appointed,  draft  amendments  to  the  2 

regulations  and  submit  the  same  to  the  governor  and  council  for  their  3 

approval.    Within  si.xty  days  after  such  submission  they  shall  approve  4 

the  same,  with  such  alterations  and  amendments  and  after  such  public  5 

hearings  as  they  may  deem  proper;  and  the  regulations  so  altered  and  6 

amended  shall  become  part  of  the  rules  and  regulations  pertaining  to  7 

elevators.     The  commissioner  of  public  safety  shall  furnish  upon  ap-  8 

plication  a  printed  copy  of  the  regulations  to  all  manufacturers  of  ele-  9 

vators  operating  in  the  commonwealth,  to  all  inspectors  of  buildings  10 

in  the  cities  and  towns  of  the  commonwealth,  and  to  all  others  who  are  11 

concerned.     The  board  shall  be  dissolved  upon  the  approval  of  the  regu-  12 

lations  by  the  governor  and  council.  13 


Appeal. 
1913,806.  §  11. 


Section  70.     Whoever,  except  in  Boston,  is  aggrieved  by  the  order,  1 

requirement  or  direction  of  an  inspector  of  buildings  of  a  city  or  town  in  2 

reference  to  the  installation  or  alteration  of  ele\ators  may,  within  ten  3 

days  after  the  service  thereof,  appeal  as  provided  in  section  fifty-five;  4 

and  all  the  pro^■isions  of  said  section,   except  as  otherwise   provided  5 

herein,  shall  apply  to  the  procedure  on  such  appeal.     In  Boston  the  6 

right  of  appeal  shall  be  the  same  as  that  pro\'ided  by  section  se\'en  of  7 

chapter  five  hundred  and  fifty  of  the  acts  of  nineteen  hmidred  and  8 

seven.  9 


Penalty. 
1913,  806,  5  12. 


Section  71.     Any  person  violating  or  failing  to  comply  with  any  1 

provision  of  sections  si.xty-two  to  seventy,  inclusive,  or  of  any  regulation  2 

established  thereunder  shall  be  punished  by  a  fine  of  not  more  than  five  3 

hundred  dollars.  4 


Regulation. 
1905.  176,  §  1. 
1908,  500,  §  1. 

1914.  791,  §  1. 

1915,  169,  §  1. 


cinematographs. 

Section  72.     No  cinematograph  or  similar  apparatus  involving  the  1 

use  of  a  combustible  film  more  than  ten  inches  in  length,  except  one  2 

using  only  an  enclosed  incandescent  lamp  and  cellulose  acetate  films  3 

not  more  than  one  and  one  quarter  inches  in  width,  shall,  e.xcept  as  4 

provided  by  section  eighty-five,  be  kept  or  used  for  the  purpose  of  ex-  5 

hibiting  such  films  in  or  upon  the  premises  of  a  public  building  until  6 

such  cinematograph  or  similar  apparatus  has  been  inspected  ami  ap-  7 

proved  by  an  inspector,  who  shall  ha\'e  placed  thereon  a  numbered  8 

metal  tag;    nor  until  a  booth  or  enclosure,  which  has  been  inspected  9 


Chap.  143.]  inspection  of  cinematographs.  1477 

10  ami  approved  by  such  an  inspector  and  his  certificate  issued  therefor, 

11  has  been  provided  for  said  apparatus;  nor  until  such  precautions  against 

12  fire  as  the  commissioner  of  public  safety  may  specify  have  been  taken 

13  by  the  owner,  user  or  exhibitor;  provided,  that  no  such  apparatus  shall 

14  be  operated  with  oxyhydrogen  gas,  so  called,  or  with   limelight.     In 

15  addition,  in  Boston  the  location  of  any  booth  or  enclosure  surrounding 

16  such  apparatus  shall  be  approved  by  the  building  commissioner,  who  may 

17  order  such  additional  precautions  against  fire  as  he  may  deem  necessary. 

1  Section  73.     The  inspectors  shall  inspect  any  such  apparatus  which  inspection. 

2  is  to  be  kept  or  used  as  specified  in  the  preceding  section,  and  any  JgU^;  HI]  |  f 

3  booth  or  enclosure  provided  therefor,  and  the  commissioner  of  public  '^^*'  ^^^'  ^  ^• 

4  safety  shall  make  such  rules  and  regulations  as  he  may  deem  necessary 

5  for  the  safe  use  thereof. 

1  Section  74.     For  the  inspection  of  such  apparatus  or  of  a  booth  or  Fee  for 

2  enclosure,  as  provided  by  tlie  preceding  section,  a  fee  of  two  dollars  shall  SogTssT  §  i. 

3  be  paid  by  the  owner  or  user  thereof.         i9ii,  4s,  1 1.  i9i4, 791,  §  3. 

1  Section  75.     Except  as  provided  in  section  seventy-seven,  no  person  Licenses. 

2  shall  operate  such  apparatus  in  any  public  building  until  he  has  re-  1909]  Isi!  §  2. 

3  ceived  a  special  or  first  class  license  so  to  do  from  an  inspector.     No  JgJI;  7I1;  ^  ^• 

4  such  license  shall  be  granted  until  the  applicant  has  passed  an  exami-  5§  4. 9. 10. 

5  nation  proving  him  to  be  thoroughly  skilled  in  the  working  of  the  me- 

6  chanical  and  electrical  apparatus  or  devices  used  therein  or  connected 

7  therewith,  and  no  person  under  twenty-one  shall  be  eligible  for  such  ex- 

8  amination.    Three  dollars  shall  accompany  the  application  for  a  license. 

9  The  special  or  first  class  license  shall  be  for  the  term  of  one  year  from 

10  the  date  thereof,  but  may  be  renewed  yearly,  without  examination,  by 

11  an  inspector  upon  the  payment  of  a  fee  of  one  dollar.     A  first  class 

12  license  shall  apply  only  to  the  operation  of  a  hand  driven  apparatus.    A 

13  special  license  shall  apply  to  one  dri\'en  by  hand  or  motor. 

1  Section  76.     Any  person  over  eighteen  desiring  to  act  as  an  assist-  Assistant's 

2  ant  to  a  holder  of  a  special  or  first  class  license  shall  register  his  name,  i9os,  see,  §  5. 

3  age  and  address  on  a  form  furnished  by  the  commissioner  of  public  1911!  791!  §  a. 

4  safety;  and  upon  the  receipt  of  one  dollar  the  commissioner  may  issue  a 

5  permit  allowing  such  person  to  assist  sucli  a  licensed  operator  in  a  booth 

6  or  enclosure,  but  such  person  shall  not  himself  operate  the  apparatus. 

7  The  permit  shall  be  for  the  term  of  one  year  from  the  date  thereof,  but 

8  may  be  renewed  yearly  by  the  commissioner  upon  the  receipt  of  fifty 

9  cents. 

1  Section  77.     A  second  class  license  giving  the  right  to  operate  a  Second  class 

2  hand  driven  cinematograph  or  similar  apparatus,  but  only  in  the  pres-  1914, 791,  §  c. 

3  ence  of  a  holder  of  a  special  or  first  class  license,  may  be  granted  to  any 

4  person  over  twenty  who  has  been  employed  for  three  months  as  an 

5  assistant  under  the  supervision  of  a  licensee  in  or  upon  a  public  building. 

6  The  applicant,  as  a  condition  of  receiving  the  said  second  class  license, 

7  shall  pass  an  examination  satisfactory  to  an  inspector,  and  shall  pre- 

8  sent  to  the  commissioner  of  public  safety  an  affidavit,  signed  and  sworn 

9  to  by  him,  stating  that  he  has  so  worked  for  said  period.     The  com- 
10  missioner  may  require  that  the  affidavit  be  corroborated.    A  fee  of  two 


1478 


INSPECTION   OF   CINEMATOGRAPHS. 


[CH-AP.    143. 


dollars  shall  accompany  the  appHcation  for  the  Ucense.  The  license  11 
shall  be  for  the  term  of  one  year  from  the  date  thereof,  but  may  be  12 
renewed  yearly  by  an  inspector  upon  the  receipt  of  fifty  cents.  13 


First  class 

license. 

1914,  791,  §  7. 


Section  78.  Any  person  over  twenty-one  who  has  held  a  second 
class  license  for  three  months  or  more  and  has  worked  regularly  during 
that  period  in  a  booth  or  enclosm-e  in  or  upon  a  public  building,  upon 
presenting  to  the  commissioner  of  public  safety  an  affidavit,  signed  and 
sworn  to  by  him,  stating  that  he  has  so  worked  for  the  said  period,  and 
upon  passing  the  examination  and  payment  of  three  dollars,  may  receive 
a  first  class  license. 


Eligibility  for 
examination. 
1914,  791.  §  8. 


Section  79.     Any    person    over    twenty-one    who    presents    to    the  1 

commissioner  of  public  safety  an  affidavit,  signed  and  sworn  to  by  him,  2 

stating  that  he  has  operated  a  cinematograph  or  similar  apparatus  in  a  3 

booth  or  enclosiu-e  in  a  theatre  or  hall  devoted  to  public  exhibitions  of  4 

mo\ing  pictures  outside  of  the  commonwealth  for  a  period  of  three  5 

months  or  more,  shall  be  eligible  for  the  examination,  as  provided  in  6 

section  seventy-five,  for  a  special  or  a  first  class  license.  7 


igHlre'rHo.  Section  SO.  The  holder  of  a  first  class  license,  or  any  person  desig-  1 
nated  in  the  preceding  section,  who  passes  an  examination  satisfactory  2 
to  the  department  may  be  granted  a  special  license.  3 


Suspending 
or  revoking 
license  or 
periiiit- 
1914,  791.  §  11. 


Section  81.  An  operator's  license  or  an  assistant's  permit  may  be 
suspended  or  revoked  for  cause  at  any  time  by  an  inspector;  but  the 
person  whose  license  or  permit  is  so  suspended  or  revoked  may  appeal 
to  the  commissioner  of  public  safety,  whose  decision  in  the  matter  shall 
be  final. 


Permits  for 
special 
exhibitions. 
1914,791,  §  12. 


Section  82.  Except  in  Boston,  the  commissioner  of  public  safety 
may  grant  permits  for  the  special  exliibition  of  pictures  by  the  use  of  a 
cinematograph  or  similar  apparatus  in  a  public  building  which  in  his 
opinion  is  in  safe  condition  for  such  exliibitions,  and  he  may  prescribe 
such  regulations  as  he  may  deem  necessary  for  the  presentation  of  the 
same.    Two  dollars  shall  accompany  the  a.pplication  for  each  permit. 


Application 
ot  certain 
sections. 
1914,  791,  §  1.3. 


Section  83.  Sections  seventy-two  to  seventy-six,  inclusive,  shall 
not  apply  to  any  motion  picture  machine  operated  with  only  cellulose 
acetate  films  not  more  than  one  inch  and  o"ne  fourth  in  width  and  re- 
quiring not  more  tlian  fi\e  hundred  watts  of  electric  current  to  operate 
the  arc;  provided,  that  such  machines  shall  not  be  kept  or  used  in  a 
public  building  except  under  such  regulations  as  the  commissioner  of 
public  safety  shall  prescribe. 


Penalty. 
1905,  176,  §  3. 

1908,  ses,  §  3. 

1914,  791,  §  15. 


Section  84.  Any  person  keeping  or  using  a  cinematograph  or  similar 
apparatus  contrary  to  any  provision  of  sections  seventy-two  to  eighty- 
four,  inclusive,  or  in  violation  of  any  rule  or  regulation  made  by  the 
commissioner  of  public  safety,  or,  in  Boston,  in  violation  of  any  regula- 
tion or  requirement  made  by  the  building  commissioner  in  accordance 
with  said  sections,  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor 
more  than  fi\e  hundred  dollars. 


CiL\p.  144.] 


TENEMENT   HOUSES  IN   CITIES. 


1479 


1  Section  85.     Notwithstanding  any  provision  of  sections  seventy-two  Special  licenses 

2  to  eighty-four,  inclusive,  the  commissioner  of  public  safety  may  grant  in  ch^ches, 

3  special  licenses  for  operators  of  motion  picture  machines  in   churches,  ign^lio,"^' 

4  schoolhouses  or  public  institutions  in  cities  and  towns,  except  Boston,  flu' 791,  §  17. 

5  which  in  his  opinion  are  in  safe  condition  for  said  exhibitions,  and  he  OfKA.G.ci920) 

6  may  prescribe  regulations  for  the  proper  conduct  of  the  same.     Two 

7  dollars  shall  accompany  each  application  for  such  special  license. 


REFERENCE. 
Building  laws  in  Boston,  1907,  550,  and  amendments. 


CHAPTER     144. 

TENEMENT  HOUSES  IN   CITIES. 


Sect. 


GENERAL    PROVISIONS. 


1.  Application. 

2.  Definitions. 

3.  Application  of  certain  sections. 

4.  Law  not  to  be  modified. 

5.  Water  and  sewer  connections. 

6.  Power  of  department  of  public  health. 

7.  Improvements  to  be  made  within  one 

j-ear  after  acceptance. 

8.  Buildings  converted  or  altered. 

9.  Alterations  and  change  in  occupancy. 

NEW  BUILDINGS.      LIGHT  AND   VENTILATION. 

10.  Distance  from  side  lot  line. 

11.  Height. 

12.  Yards. 

13.  Courts. 

14.  Courts  to  be  open  at  top. 

15.  Air  intakes. 

IG.  Extensions  or  offsets  to  courts. 

17.  Building    of    walls    across    angles    in 

courts. 
IS.  Placing  of  buildings  on  s.ame  lot  with 

tenement  houses. 

19.  Rear  tenements. 

20.  Lighting,  etc. 

21.  Area  of  windows,  etc. 

22.  Size  of  rooms. 

23.  Alcoves,  etc. 

24.  Privacy. 

25.  Windows  in  public  halls. 

26.  Sizes  of  windows  in  halls. 


SANITATION. 

27.  Use  of  basement  and  cellar  rooms  for 

li^•ing  purposes. 

28.  Damp  proofing,  etc.,  of  cellars. 

29.  Spaces  under  floors. 

30.  Drainage  of  courts,  yards,  etc. 

31.  Sinks. 


Sect. 

32.  Construction,  etc.,  of  water  closets. 

33.  Plumbing. 

34.  Water  supply. 

35.  Pri\-ies. 


FIRE    protection. 

36.  Construction  required. 

37.  Fire  escapes. 

38.  Construction  of  bulkheads  and  scuttles. 

39.  Stairs  and  public  halls. 

40.  Fireproof  stairs  and  stair  halls  required 

in  tenement  houses   of  second  class 
construction. 

41.  Entrance  halls. 

42.  Shafts  to  be  of  fireproof  construction. 

43.  Ceiling  of  cellar,  etc. 

44.  Closets    under    first    story    stairs    not 

allowed. 

45.  Outside  cellar  entrance. 

46.  Finish  about  chimneys. 

47.  Fire  walls. 

48.  Roofing  materials. 

49.  Wooden   tenement   houses   not   to   be 

used  for  certain  purposes  above  sec- 
ond story. 

improvements  in  OLD  buildings. 

50.  Lighting  and  ventilation  of  rooms. 

51.  Lighting  and  ventilation  of  public  halls. 

52.  Sinks. 

53.  Water  closets. 

54.  Removal  of  cesspools,  etc. 

55.  Basements    and    cellars    to    be    damp 

proof,  etc. 

56.  Doors  in  shafts  and  courts. 

57.  Construction  of  fire  escapes. 

58.  Means  of  egress. 

alter-^tions  of  old  bcildlngs. 

59.  Alterations. 


1480 


TENEMENT  HOUSES   IN   CITIES. 


[Ch.\p.  144. 


Sect. 


MAINTENANCE    AND    USE. 


60. 
61. 
62. 
63. 
64. 

65. 
66. 
67. 
68. 

69. 
70. 
71. 


73. 

74. 

75. 
76. 
77. 
78. 
79. 
80. 
81. 


Lighting  of  public  halls  in  the  daj-time. 

Lighting  of  public  halls  at  night. 

Water  closets  in  cellars. 

Water  closet  accommodations. 

Occupation  of  basement  and  cellar 
rooms  for  living  purposes. 

Floors  around  water  closets  and  sinks. 

Repairs. 

Water  supply. 

Buildings  to  be  kept  clean  and  free 
from  refuse  matter,  etc. 

Walls  of  courts  to  be  whitened,  etc. 

Walls  and  ceilings  of  rooms,  etc. 

Wall  paper. 

Receptacles  for  ashes,  etc.,  to  be  pro- 
vided. 

Certain  uses  prohibited. 

Not  to  be  used  for  storage  of  combus- 
tible materials,  etc. 

Bakeries  and  fat  boiling. 

Other  dangerous  businesses. 

Janitor  or  housekeeper. 

Overcrowding. 

Letting  of  lodgings  regulated. 

Board  of  health  may  order  repairs,  etc. 

Infected  and  uninhabitable  houses  to  be 
vacated. 


Sect. 

82.  Repair  of  fire  escapes. 
S3.  Scuttles,  bulkheads,  etc.,  to  be  easily 
accessible  at  all  times,  etc. 


86. 


REQUIREMENTS    AND    REMEDIES. 

Inspector  of  buildings.     Appointment. 

Permit  for  construction  or  alteration  of 
tenement  house. 

Building  not  to  be  occupied  until  after 
approval,  etc. 

Enforcement  of  provisions. 

Building  erected,  etc.,  in  \-iolation  of 
this  act  to  be  deemed  a  common  nui- 
sance, etc. 

Penalties. 

.\ction  of  board  of  health,  etc.,  may  be 
renewed  by  superior  court. 

Right  of  entry. 

Liens. 

Notice  of  pendency  of  action  to  be  filed, 
etc. 

Owner's  name,  etc.,  to  be  registered, 
etc. 

Service  of  notices. 

Service  of  summons. 

Certain  names  and  addresses  to  be  in- 
dexed, etc. 

Repeal. 


GENEILIL  PROVISIONS. 

i9i3,'TsG?'§' 9s.      Section  1.    This  chapter  shall  apply  to  all  cities  except  Boston  which  1 

accept  it  or  have  accepted  corresponding  provisions  of  earlier  laws  by  a  2 

vote  of  the  city  council  with  the  approval  of  the  mayor.  .3 


Definitions. 
1913,  7SG,  §  2. 


Section  2.  The  following  words  used  in  this  chapter  shall  have  the  1 
following  meanings:  2 

"Acceptance  of  this  chapter"  shall  include  the  acceptance  of  corre-  .3 
spending  provisions  of  earlier  laws.  4 

"Alcove",  any  part  of  a  room  partitioned  off  by  fixed  or  movable  5 
partitions  of  any  material,  by  curtains  or  portieres,  or  by  other  con-  6 
trivance  or  de\dce,  and  intended  or  designed  to  be  used  for  living  7 
purposes.  8 

"Basement",  a  story  partly  under  ground  but  having  not  less  than  9 
one  half  its  height  above  the  level  of  the  curb,  and  also  having  one  10 
half  its  height  in  every  part  above  the  level  of  the  adjoining  ground.  1 1 

"Cellar",  a  story  more  than  one  half  below  the  level  of  the  curb  or  12 
adjoining  ground.  13 

"Corner  lot",  a  lot  situated  at  the. junction  or  intersection  of  two  14 
streets  each  not  less  than  sixteen  feet  in  width,  but  any  lot  the  outer  1.5 
angle  of  which  is  over  one  hundred  and  twenty-five  degrees  shall  not  be  IG 
considered  a  corner  lot.  Any  portion  of  the  width  of  the  front  of  such  17 
lot  distant  more  than  fifty  feet  and  any  portion  of  the  depth  of  such  lot  18 
distant  more  than  one  hundred  feet  from  such  a  junction  or  intersection  19 
shall  not  be  regarded  as  part  of  a  corner  lot,  but  shall  be  subject  to  the  20 
provisions  of  this  chapter  respecting  interior  lots.  21 

"Court",  an  open  unoccupied  space,  other  than  a  yard  or  front  yard,  22 
on  the  same  lot  with  a  tenement  house.    A  court  extending  to  the  street,  23 


Chap.  144.]  tenement  houses  in  cities.  1481 

24  yard,  front  yard  or  side  yard  is  an  "outer  court".     A  court  not  so  ex- 

25  tending  is  an  "inner  court". 

26  "Existing",  existing  at  the  time  of  the  acceptance  of  this  chapter  or 

27  corresponding  provisions  of  earher  laws. 

28  "First  class  construction".    A  tenement  house  of  first  class  construc- 

29  tion  is  one  constructed  of  fireproof  material  throughout,  with  floors  built 

30  of  steel  or  re-enforced  concrete  beams,  filled  in  between  with  terra  cotta 

31  or  other  masonry  arches  or  with  concrete  or  re-enforced  concrete  slabs; 

32  wood  may  be  used  only  for  under  and  upper  floors,  windows  and  door 

33  frames,    sashes,   doors,   interior  finish,   hand  rails  for  stairs,   necessary 

34  sleepers  bedded  in  cement,  and  for  isolated  furrings  bedded  in  mortar. 

35  There  sliall  be  no  air  space  between  the  top  of  any  floor  arches  and  the 

36  floor  boarding. 

37  "First  story",  the  lowest  story,  the  ceiUng  of  which  is  six  feet  or  more 

38  above  both  the  level  of  the  curb  and  tlie  level  of  tlie  adjacent  ground. 

39  In  determining  the  height  of  any  building  by  stories,  the  stories  thereof 

40  beginning  witli  such  first  story  shall  be  numbered  upward. 

41  "Front"  of  a  lot,  that  boundary  line  which  borders  on  the  street.    In 

42  the  case  of  a  corner  lot  the  owner  may  elect  by  statement  on  his  plans 

43  either  street  boundary  line  as  the  front. 

44  "Half  story"  or  "attic",  any  story  included  in  the  roof,  the  cubic 

45  contents  of  which,  exclusive  of  cockloft  or  blind  attic  not  exceeding 

46  three  feet  in  height  at  the  highest  point,  is  not  more  than  sixty  per  cent 

47  of  the  cubic  contents  of  the  first  story. 

48  "Heiglit",  the  perpendicular  distance  measured  in  a  straight  line  from 

49  the  curb  le\'el,  or  from  the  finished  grade  line  of  the  lot  where  such  grade 

50  is  higher  than  the  curb,  to  the  mean  height  above  the  ea^'es  of  any  slop- 

51  ing  roof,  and  to  the  highest  point  of  the  roof  beams  in  tlie  case  of  flat 

52  roofs,  except  that  in  the  case  of  flat  roofs  a  parapet  exceeding  three  feet 

53  in  height  shall  be  considered  a  part  of  the  height  of  the  building,  the 

54  measurements  in  all  cases  to  be  taken  through  the  centre  of  the  street 

55  front  of  the  house.    Where  a  building  is  on  a  corner  lot  and  there  is  more 

56  than  one  grade  or  curb  level,  the  measurements  shall  be  taken  from  the 

57  centre  of  the  front  on  the  street  ha\'ing  tiie  lowest  ele'V'ation. 

58  "Interior  lot",  any  lot  other  than  a  corner  lot. 

59  "  Lot ",  the  plot  of  groimd  covered  by  and  adjacent  to  a  tenement  house 

60  or  dwelling  house  and  devoted  exclusively  to  the  purposes  of  such  house, 

61  as  shown  by  tlie  plan  of  such  lot  furnished  to  the  building  department 

62  pursuant  to  section  eighty-five. 

63  "Nuisance"  includes  all  public  nuisances  as  known  at  common  law 

64  or  in  equity  jurisprudence;    and  furthermore,  whatever  is  dangerous  to 

65  human  life  or  detrimental  to  health,  whatever  building  or  erection,  or 

66  part  or  cellar  thereof,  is  overcrowded  with  occupants  or  is  not  pro\ided 

67  with  adequate  ingress  or  egress  to  and  from  the  same  or  apartments 

68  thereof,  or  is  not  sufficiently  supported,  ventilated,  sewered,  drained, 

69  cleaned  or  lighted  in  reference  to  its  or  their  intended  or  actual  use;  and 

70  whatever  renders  the  air  or  human  food  or  drink  unwholesome,  are  also 

71  severally  in  contemplation  of  this  chapter,  nuisances;  and  such  nuisances 

72  are  hereby  declared  unlawful. 

73  "Occupied  spaces".    Porches,  platforms,  except  those  on  the  first  story 

74  when  the  basement  is  not  occupied  or  designed  or  intended  to  beoccupieil 

75  for  habitation,  and  outside  stairways,  except  fire  escapes  and  steps  lead- 

76  ing  to  the  first  story,  shall  be  considered  as  part  of  the  building  and  not 

77  as  part  of  the  yard  or  courts  or  unoccupied  areas. 


1482  TENEMENT  HOUSES   IN   CITIES.  [ChaP.    144. 

"Public  hall",  a  hall,  corridor  or  passageway  not  within  an  apartment.     78 

"Rear"  of  a  lot,  the  side  opposite  to  the  front.  In  the  case  of  a  corner  79 
lot  with  streets  on  three  sides,  or  of  a  triangular  or  irregularly  shaped  80 
lot  abutting  on  two  streets  at  their  junction  or  intersection,  the  rear  shall  81 
be  a  side  not  bordering  on  a  street.  82 

"Second  class  construction".  A  tenement  house  of  second  class  con-  83 
struction  is  one  of  which  the  exterior  and  party  walls  are  fireproof  and  84 
conform  to  the  requirements  of  first  class  construction  as  defined  by  85 
law  or  by  ordinance  of  the  city  in  which  it  is  situated.  86 

"Stair  hall"  includes  the  stairs,  stau-  landings  and  those  parts  of  the  S7 
public  halls  tlirough  which  it  is  necessary  to  pass  in  going  from  the  en-  88 
trance  floor  to  the  roof.  89 

"Street"  includes  any  right  of  way  dedicated  to  public  use,  any  public  90 
alley,  or  railroad  right  of  way  sixteen  feet  or  more  in  width,  any  ceme-  91 
tery  or  public  park.  92 

"Tenement  house",  any  house  or  building,  or  part  thereof,  which  is  93 
rented,  leased,  let  or  hired  out,  to  be  occupied,  or  is  occupied,  or  intended,  94 
arranged  or  designed  to  be  occupied  as  the  home  or  residence  of  two  or  95 
more  families  (a  family  may  consist  of  one  or  more  persons),  living  in-  96 
dependently  of  each  other  and  doing  their  cooking  on  the  premises  and  97 
having  a  common  right  in  the  halls,  stairways,  yard,  com-ts,  cellar,  sinks,  98 
water  closets  or  privies,  or  any  of  them.  Where  the  occupants  of  dwelling  99 
houses  contiguous  and  vertically  divided,  each  occupied  or  intended,  100 
arranged  or  designed  to  be  occupied  as  the  home  or  residence  of  one  101 
family  or  more,  have  a  common  right  in  or  use  in  common  the  halls,  102 
stairways,  yards,  cellars,  sinks,  water  closets  or  privies,  or  any  of  them,  103 
such  dwelling  houses  shall  be  deemed  to  be  tenement  houses  and  shall  be  104 
subject  to  this  chapter.  105 

"Thereafter",  after  the  acceptance  of  this  chapter  or  corresponding  106 
provisions  of  earlier  laws.  107 

"Third  class  construction".  A  tenement  house  of  third  class  con-  108 
struction  is  one  of  which  the  exterior  walls  or  parts  thereof  are  of  com-  109 
bustible  materials  and  do  not  conform  to  the  requirements  of  first  class  110 
construction.  Ill 

"Yard",  an  open  unoccupied  space  on  the  same  lot  with  the  tenement  112 
house  between  the  extreme  rear  line  of  the  house  and  the  exti'eme  rear  113 
line  of  the  lot.  A  "front  yard"  is  an  open  unoccupied  space  between  114 
the  front  line  of  the  house  and  the  front  line  of  the  lot.  A  "side  yard"  is  115 
an  open  unoccupied  space  between  the  side  line  of  the  main  part  of  the  1 16 
house  and  the  side  line  of  the  lot  and  shall  be  deemed  an  outer  court  on  117 
the  lot  line.  118 

Words  used  in  the  present  tense  include  the  future;  words  in  the  119 
masculine  gender  include  feminine  and  neuter;  the  word  "shall"  is  al-  120 
ways  mandatory,  and  denotes  that  the  house  shall  be  maintained  in  all  121 
respects  according  to  the  mandate  so  long  as  it  continues  to  be  a  tene-  122 
ment  house;  whenever  the  words  "charter",  "ordinances",  "regula-  123 
tions".  "building  department",  "building  inspector",  "health  depart-  124 
ment",  "board  of  health",  "department  charged  with  the  enforcement  125 
of  this  chapter",  or  "city  solicitor"  occur  in  this  chapter  they  shall  be  126 
construed  as  if  followed  by  the  words  "  of  the  city  in  which  the  tenement  127 
house  is  situated";  wherever  the  words  "is  occupied"  are  used  in  this  128 
chapter  applying  to  any  building,  such  words  shall  be  construed  as  129 
if  followed  by  the  words  "or  is  intended,  arranged  or  designed  to  be  130 
occupied."  131 


Chap.  144.]  tenement  houses  in  cities.  1483 

1  Section  3.     Unless  otherwise  specifically  provided  therein,  sections  AppHoation 

2  nine  to  forty-nine,  inclusive,  shall  apply  only  to  tenement  houses  erected  Sections'. 

3  after  the  acceptance  of  this  chapter,  and  sections  fifty  to  fifty-nine,  in- 

4  elusive,  only  to  tenement  houses  erected  prior  to  such  acceptance. 

1  Section  4.     This  chapter  shall  be  held  to  provide  the  minimum  i.aw  not  to 

2  requirements  adopted  for  the  protection  of  the  health  and  safety  of  the  i9i3,°786!§'5. 

3  community.     Nothing  in  this  chapter  shall  be  construed  as  prohibiting 

4  any  city  from  enacting  from  time  to  time  supplementary  ordinances  im- 

5  posing  further  restrictions,  but  no  city  authority  shall  have  power  to 

6  minimize,  avoid  or  repeal  any  provision  of  this  chapter. 


1  Section  5.     The  provisions  of  this  chapter  with  reference  to  sewer  water  and 

2  connection  and  water  supply  shall  be  deemed  to  apply  only  where  nections"' 

3  connection  with  a  sewer  and  with  a  water  main  is  or  becomes  practicable.  ll\l\  79I;  |  f; 

4  The  cjuestions  of  the  practicability  of  such  sewer  and  water  connections  i*'^'-''  ^^O'  5  96. 

5  shall  be  decided  by  the  local  board  of  health,  or  by  the  department  of 

6  public  health  upon  request  of  the  local  board. 

1  Section  6.     The  department  of  public  health  may  examine  into  the  Power  of  de- 

2  enforcement  of  the  laws  relating  to  tenement  houses  in  any  city.    When-  pubi"rheaUh. 

3  ever  so  required  by  the  governor,  it  shall  make  such  an  examination  and  |qJ|;  ^fi'.  i  1' 

4  shall  report  the  result  thereof  to  the  governor  within  the  time  prescribed  ^^^^'  ^^°'  5  ^''■ 

5  by  him. 

1  Section  7.     In  tenement  houses  erected  prior  to  the  acceptance  of  [^J?e°mtde°'^ 

2  this  chapter  by  a  city,  all  improvements  specifically  required  thereby  witiiin  one 

3  shall  be  made  within  one  year  thereafter,  or  at  such  earlier  time  as  may  acceptance. 

4  be  fixed  by  the  building  inspector. 

1  Section  8.     A  building  not  a  tenement  house,  if  converted  or  altered  ^"nlSld  or 

2  to  such  use  after  the  acceptance  of  this  chapter,  shall  thereupon  become  ^gf'f  igg  .  3 

3  subject  to  all  the  provisions  thereof  affecting  tenement  houses  erected 

4  thereafter. 

1  Section  9.     No  tenement  house  shall  at  any  time  be  altered  so  as  Alterations 

2  to  be  in  violation  of  any  provision  of  this  chapter.    If  any  tenement  house,  Sccupancy^  ° 

3  whenever  erected,  or  any  part  thereof  is  occupied  by  a  number  of  families  ^^^^'  ^*^'  ^  *' 

4  in  excess  of  the  number  specified  in  this  chapter,  or  is  erected  or  altered 

5  or  occupied  contrary  to  law,  such  tenement  house  shall  be  deemed  an 
G  unlawful  structure,  and  the  board  of  health  may  cause  such  building  to 

7  be  vacated;  and  it  shall  not  again  be  occupied  until  it  or  its  occupation, 

8  as  the  case  may  be,  has  been  made  to  conform  to  the  law,  and  a  written 

9  permit  is  obtained  from  the  board  of  health. 

NEW  BUILDINGS.      LIGHT  AND   VENTILATION. 

1  Section  10.    No  tenement  house  of  third  class  construction  shall  be  Distance  from 

2  erected,  enlarged  or  placed  with  the  side  walls,  bay  windows  or  other  m3'°786?l  9. 

3  projections,  except  cornices,  belt  courses  and  window  sills,  nearer  than 

4  five  feet  to  the  line  of  any  adjoining  lot,  nor  shall  any  lot  upon  which 

5  such  a  tenement  house  stands  be  so  changed  in  size  as  to  bring  the  side 

6  walls  or  bay  windows  or  other  projections,  except  as  aforesaid,  nearer 

7  than  five  feet  to  the  line  of  any  adjoining  lot.    But  any  such  tenement 


1484 


TENEMENT   HOUSES   IN    CITIES. 


[Chap.  144. 


house  may  be  constructed  to  the  lot  line  if  protected  by  a  fire  wall  as  8 

provided  in  section  forty-seven.  9 

If  the  side  walls  of  any  tenement  house  of  first  or  second  class  con-  10 

struction  are  built  to  the  lot  line  there  shall  be  no  windows  or  any  other  11 

openings  in  such  walls.  12 


Height. 

1913,  786,  §  10. 


Section  11.     No  tenement  house  shall  have  more  than  one  legally  1 

habitable  story  for  each  full  ten  feet  of  the  width  of  the  street,  unless  2 

such  house  be  set  back  from  the  street  a  distance  equal  to  the  excess  of  3 

its  height  over  that  permitted  at  the  street  line.     On  a  corner  lot  the  4 

height  shall  be  governed  by  the  width  of  the  wider  street,  as  above,  but  5 

this  height  shall  not  extend  along  the  narrower  street  a  distance  greater  6 

than  twice  the  width  of  said  street.  7 


Yards. 
1913,786,  §  11. 


Section  12.     Behind  every  tenement  house  there  shall  be  a  yard  1 

extending  across  the  entire  width  of  the  lot  and  at  every  point  open  2 

from  the  ground  to  the  sky  unobstructed,  except  as  hereinafter  provided.  3 

Every  part  of  such  yard  shall  be  directly  accessible  from  every  other  part  4 

thereof.     The  depth  of  said  yard  shall  be  measured  from  the  extreme  5 

rear  of  the  house  toward  the  rear  line  of  the  lot.    Where  the  rear  of  the  6 

lot  abuts  on  a  public  alley  or  right  of  way  dedicated  to  public  use  for  7 

the  full  width  of  the  lot,  the  depth  of  the  lot  may  be  measured  to  the  8 

middle  line  of  such  alley  or  right  of  way;   where  there  is  no  such  alley  9 

or  right  of  way  the  measurements  shall  be  taken  to  the  rear  lot  line.    If  10 

the  tenement  house  is  three  stories  or  less  in  height  the  depth  of  the  yard  1 1 

in  the  case  of  interior  lots  shall  be  not  less  than  fifteen  feet,  and  the  depth  12 

of  the  yard  in  the  rear  of  corner  lots  shall  be  not  less  than  ten  feet.    If  13 

the  tenement  house  exceeds  three  stories  in  height,  the  depths  above  14 

prescribed  in  the  case  of  interior  lots  shall  be  increased  five  feet  and  in  1.5 

the  case  of  corner  lots  shall  be  increased  two  feet  for  each  story  abo\'e  16 

three  stories.     \Vlien  a  lot  upon  which  a  tenement  house  is  built  is  17 

bounded  on  every  side  by  a  street  the  yard  may  be  omitted.  18 


Courts. 

1913,  786,  §  12 


Section  13.  The  sizes  of  all  courts  shall  be  proportionate  to  the  1 
height  of  the  building.  No  court  shall  be  less  in  any  part  than  the  mini-  2 
mum  sizes  prescribed  in  this  section.  The  minimum  width  of  a  court  3 
for  a  two  story  building  shall  be  ten  feet,  and  the  width  shall  increase  4 
two  feet  for  each  additional  story.  The  length  of  an  inner  court  shall  5 
never  be  less  than  twice  the  minimum  width  prescribed  by  this  section.  6 
The  length  of  an  outer  court  shall  never  be  greater  than  twice  its  mini-  7 
mum  width  unless  provided  at  the  inner  end  with  an  air  intake  at  the  8 
bottom,  as  prescribed  in  section  fifteen,  which  shall  communicate  di-  9 
rectly  with  the  street  or  yard  or  front  yard.  The  minimum  width  for  10 
an  outer  court  on  the  lot  line  extending  from  the  street  or  front  yard  to  11 
the  yard  shall  be  ten  feet  for  a  three  story  building,  and  the  width  shall  12 
increase  one  foot  for  each  additional  story.  13 


opTn'aVt'op^  Section  14.     No  court  shall  be  covered  by  a  roof  or  skylight,  but     1 

1913,  780,  i  13.  every  court  shall  be  at  every  point  open  from  the  ground  to  the  sky     2 

unobstructed.  3 


i9i3°786r§  14.  Section  15.  In  every  tenement  house  four  stories  or  under  in  1 
height,  every  inner  court  shall  be  provided  with  one  or  more  horizontal  2 
air  intakes  at  the  bottom.     Such  intakes  shall  communicate  directly     3 


Chap.  144.]  tenement  houses  in  cities.  1485 

4  with  the  street,  front  yard  or  yard,  and  shall  consist  of  a  fireproof 

5  passageway  not  less  than  three  feet  wide  and  seven  feet  high  which 

6  shall  be  left  open,  or  be  provided  with  an  openwork  gate  at  each  end, 

7  and  such  gate  shall  not  be  covered  o\-er  in  any  way  either  by  glass  or 

8  any  other  material.    If  the  tenement  house  is  over  four  stories  in  height 

9  there  shall  be  two  or  more  such  intakes,  one  communicating  with  the 
10  street  or  front  yard  and  one  with  the  yard. 

1  Section  16.     Extensions  or  offsets  to  courts  are  permitted  for  the  Extensions  or 

2  purpose  of  lighting  bathrooms,  water  closets  and   corridors  only,  but  courts. '° 

3  no  such  extension  or  offset  shall  be  less  than  six  feet  in  width  in  any  part;  ^^^^'  '^^'''  ^  '^■ 

4  its  depth  may  be  less  than  but  never  greater  than  its  width.     Such 

5  dimensions  shall  be  deemed  the  minimum  dimensions  for  a  two  story 

6  house,  and  shall  increase  one  foot  for  each  story  above  two  stories. 

1  Section  17.     Nothing  in  the  foregoing  sections  concerning  courts  Building  ot 

2  shall  be  construed  as  prohibiting  the  building  of  walls  across  the  angles  angles^^n°^' 

3  of  said  courts  to  contain  windows;  provided,  that  the  running  length  of  1913^736,  §  le. 

4  the  wall  containing  such  windows  does  not  exceed  six  feet. 

1  Section  18.     If  any  building  is  thereafter  placed  on  the  same  lot  Placing  of 

2  with  a  tenement  house,  whenever  erected,  there  shall  always  be  main-  saineToMv°ith 

3  tained  between  the  said  buildings  an  open  unoccupied  space  extending  hoTses!"' 

4  upward  from  the  ground  and  extending  across  the  entire  width  of  the  ^^^^'  ''^°'  ^  ^''■ 

5  lot.     Except  as  otherwise  provided  by  special  acts,  such  space  shall 

6  never  be  less  than  twenty-five  feet  in  depth,  and  \\here  either  building 

7  exceeds  three  stories  in  height  the  depth  of  such  open  space  shall  be  in- 

8  creased  five  feet  for  each  story  above  three.    No  building  of  any  kind 

9  shall  thereafter  be  placed  upon  the  same  lot  with  a  tenement  house, 

10  whenever  erected,  so  as  to  diminish  the  minimum  size  of  courts  or  yards 

11  as  hereinbefore  prescribed,  except  that  where  an  alley  not  less  than  ten 

12  feet  wide  abuts  on  the  rear  of  the  lot,  a  rear  building,  if  not  used  for 

13  tenement  house  or  stable  or  manufacturing  purposes,  may  be  built  up 

14  to  the  rear  line  of  the  lot;  provided,  that  it  does  not  exceed  one  story  in 

15  height  and  that  the  space  between  it  and  the  front  building  is  maintained 

16  as  required  by  this  section.    If  any  tenement  house  is  erected  upon  any 

17  lot  upon  which  there  is  already  another  building,  it  shall  comply  with 

18  this  chapter,  and,  in  addition,  the  space  between  the  said  building  and 

19  the  said  tenement  house  shall  be  of  such  size  and  arranged  in  such 

20  manner  as  is  prescribed  in  this  section,  the  height  of  the  highest  building 

21  on  the  lot  to  regulate  the  dimensions. 

1  Section  19.     No  tenement  house  shall  be  erected  upon  the  rear  of  P™'     , 

i.,.!,.  1.  p  .  ,        tenements. 

2  a  lot  where  there  is  a  buildmg  on  the  front  of  the  said  lot,  nor  upon  the  isis.  7si;.  §  is. 

3  front  of  any  such  lot  upon  the  rear  of  which  there  is  a  tenement  house 

4  whenever  erected  or  a  stable  or  building  used  for  manufacturing  pur- 

5  poses.    This  provision  shall  not  apply  to  tenement  houses  abutting  on 

6  two  streets  and  situated  on  the  outside  corner  of  the  lot. 

1  Section  20.     Every  apartment  shall  have  at  least  one  room  with  a  Lightine.  etc. 

2  window  opening  directly  upon  the  street  or  yard,  and  every  room  shall  ^^^^'  ^''"'  ^  '^' 

3  have  at  least  one  window  opening  directly  upon  the  street  or  upon  a 

4  yard  or  court  of  the  dimensions  specified  in  this  chapter,  except  that 

5  kitchenettes,  pantries,  water  closet  compartments  and  bathrooms  may 


1486 


TENEMENT  HOUSES   IX   CITIES. 


[Chap.  144. 


Area  of  vdn- 
dows.  etc. 
1913,  7SB,  §  2 


Size  of  rooms. 
1913.  7S0.  §  21. 


have  such  window  opening  upon  an  off.set  to  a  court,  as  provided  in  sec-  6 

tion  sixteen,  and  such  window  shall  be  so  located  as  properly  to  light  all  7 

parts  of  such  rooms.  8 

Section  21.     The  total  area  of  the  windows  between  stop  beads  in  1 

each  room,  including  kitchenettes,  water  closet  compartments  and  bath-  2 

rooms,  shall  be  at  least  one  seventh  of  the  floor  area  of  the  room,  and  3 

the  top  of  at  least  one  window  shall  be  not  less  than  seven  feet  six  inches  4 

above  the  floor,  and  the  upper  half  of  it  shall  be  made  so  as  to  open  the  5 

full  width.     No  such  room  shall  have  less  than  twelve  square  feet  of  6 

^\  indow  area  measured  between  stop  beads,  except  that  in  kitchenettes,  7 

water  closet  compartments  and  bathrooms  such  windows  shall  be  not  less  8 

than  six  square  feet  in  area  between  stop  beads.  9 

Section  22.     There  shall  be  in  each  apartment  at  least  one  room  con-  1 

taining  not  less  than  one  hundred  and  fifty  square  feet  of  floor  area,  and  2 

every  other  room,  except  kitchenettes,  water  closet  compartments  and  3 

bathrooms,  shall  contain  not  less  than  eighty-four  square  feet  of  floor  4 

area.    All  rooms  shall  be  in  every  part  not  less  than  eight  feet  six  inches  5 

from  the  finished  floor  to  the  finished  ceiling,  except  that  a  half  story  6 

room  need  be  eight  feet  six  inches  in  height  in  but  one  half  of  its  area.  7 


Alcoves,  etc. 
1913,  786,  §  22. 


Section  23.     An  alcove  in  any  room  shall  be  separately  lighted  and  1 

ventilated  as  provided  for  rooms  in  the  foregoing  sections.     No  part  of  2 

any  room  in  a  tenement  house,  whenever  erected,  shall  be  enclosed  or  3 

subdi\aded  at  any  time,  wholly  or  in  part,  by  a  curtain,  portiere,  fixed  or  4 

movable  partition,  or  other  contrivance  or  device  so  as  to  make  an  alcove,  5 

unless  the  part  of  the  room  so  enclosed  or  subdivided  shall  contain  a  sepa-  6 

rate  window,  as  herein  recjuired,  and  shall  have  a  floor  area  of  not  less  than  7 

eighty-four  square  feet.  8 

^Qis.fie,  5  23.      Section  24.     In  each  apartment  there  shall  be  access  to  every  living  1 

room  and  bedroom,  and  to  at  least  one  water  closet  compartment  with-  2 

out  passing  through  a  bedroom  or  bathroom  or  water  closet  compartment.  3 


^'bUc  halls.  Section  25.     Every  public  hall  and  stair  hall  shall  have  at  each  story 

1013.  786,  §  24.  gj.  ]pgg^  Qj^g  window  opening  directly  upon  the  street  or  upon  a  yard  or 
court  of  the  dimensions  specified  in  this  chapter.  Such  window  in  a 
public  hall  shall  be  at  the  end  of  the  hall  with  the  natural  direction  of  the 
light  parallel  to  the  hall's  axis.  Any  part  of  a  public  hall  which  is  in 
any  way  shut  off  from  any  other  part  of  the  hall  shall  be  deemed  a  sepa- 
rate hall  within  the  meaning  of  this  section. 


sizes  of 

windows  in 

halls. 

1913,  7S6,  I  25. 


Section  2G.-    The  windows  provided  to  light  and  ventilate  each  public  1 

hall  and  stair  hall,  or  part  thereof,  shall  contain  not  less  than  twelve  2 

square  feet  clear  opening,  measured  between  stop  beads.    The  top  of  one  3 

such  window  shall  be  not  less  than  seven  feet  six  inches  above  the  floor,  4 

and  the  upper  half  thereof  shall  be  made  so  as  to  open  the  full  width.  5 

A  sash  door  shall  be  deemed  the  equivalent  of  a  window  in  this  and  the  G 

foregoing  section;  provided,  that  said  door  contains  a  clear  opening  of  the  7 

size  prescribed  for  such  windows.     In  every  tenement  house  of  tliree  or  8 

more  stories,  whenever  erected,  there  shall  be  in  the  roof  directly  over  each  9 

stair  well  a  ridge  ventilator  having  a  minimum  opening  of  forty  square  10 

inches  and  v.itli  fixed  or  mo^•able  louvres.  1 1 


CH-^P.    144.]  TENEMENT   HOUSES   IN   CITIES.  1487 


SANITATION. 

1  Section  27.     No  room  in  the  cellar  or  basement  shall  be  constructed,  n^enflnd^*" 

2  altered,  converted,  or  occupied  for  living  purposes,  unless,  in  addition  (p""J°'""'' 

3  to  the  other  requirements  of  this  chapter,  all  of  the  following  conditions  purposes. 

4  are  complied  with :  In  a  cellar  no  room  shall  be  so  occupied  unless  it  is  in 

5  every  part  entirely  above  the  finished  grade  of  the  adjoining  land.    Such 

6  occupied  cellar  shall  be  counted  as  a  story  in  determining  the  size  of 

7  courts  and  yard.    In  a  basement  no  room  shall  be  so  occupied  unless  the 

8  ceiling  in  every  part  is  at  least  four  and  one  half  feet  above  the  curb  level 

9  of  the  street  in  front  of  such  room.    Every  such  room  shall  be  an  integral 

10  part  of  an  apartment  containing  a  room  opening  directly  upon  the  street 

11  or  yard.    There  shall  be  appurtenant  to  every  such  apartment  a  sepa- 

12  rate  water  closet,  constructed  and  arranged  as  required  by  section  thirty- 
1.3  two.  All  walls  surrounding  such  room,  and  the  floor  thereof,  shall  be 
14  damp  proof. 

1  Section  28.     The  cellar  floor  and  the  walls  below  the  ground  level  ing'^?c'"'o°'" 

2  shall  be  damp  proof.    All  cellars  and  basements  shall  be  properly  lighted  5^'jj''''7g5     27 

3  and  ventilated  in  all  their  parts  to  the  satisfaction  of  the  board  of  health. 

1  Section  29.     In  any  tenement  house  under  any  part  of  which  there  Spaces  under 

2  is  no  cellar,  the  first  story  shall  be  at  least  two  feet  above  the  ground  loJa^  736,  §  28. 

3  beneath  and  that  adjacent  thereto,  and  the  space  beneath  such  floor 

4  shall  be  kept  free  and  clear  and  shall  be  enclosed  to  prevent  the  accumu- 

5  lation  of  rubbish,  but  provided  with  ample  ventilation  and  adequate 

6  drainage. 

1  Section  30.     All  courts,  areas  and  yards  shall  be  properly  graded  and  J/eou^f* 

2  drained  and,  subject  to  section  five,  connected  with  the  street  sewer.  ^fg^g'^Vsg-  5  29 

3  And  when  necessary  in  order  to  keep  such  premises  in  a  sanitary  con- 

4  dition  such  courts,  areas  or  yards,  or  such  part  thereof  as  the  board  of 

5  health  shall  order,  shall  be  properly  paved. 

1       Section  31.     There  shall  be  a  proper  sink  in  each  apartment.  ma^'^sr,  §  30 


1  Section  32.     There  shall  be  within  each  apartment  a  separate  water  Construction. 

2  closet,  located  in  a  bathroom  or  in  a  separate  compartment;  provided,  cioset°s. **"  " 

3  that  where  there  are  apartments  of  but  one  or  two  rooms  there  shall  '®^^'  ^^'^'  ^  ^'" 

4  be  at  least  one  water  closet  for  every  two  such  apartments,  and  such 

5  water  closet  shall  not  open  into  any  apartment  but  shall  be  accessible 

6  through  a  public  hall,  and  the  door  thereof  shall  be  provided  with  lock 

7  and  keys,  and  such  compartment  and  water  closet  shall  complj^  in  all 

8  other  respects  with  this  chapter.     Said  compartment  shall  be  not  less 

9  than  three  feet  wide,  and  shall  be  enclosed  with  brick,  concrete,  stone, 

10  tiled  or  plastered  partitions  which  shall  extend  to  the  ceiling.    No  wooden 

11  sheathing  or  wainscoting  shall  be  permitted.     Every  such  compartment 

12  shall  have  a  window  opening  directly  upon  the  street  or  upon  a  yard  or 

13  court  of  the  minimum  size  prescribed  by  this  chapter.     Every  water 

14  closet  compartment  thereafter  placed  in  any  tenement  house,  whenever 

15  erected,  shall  be  provided  with  proper  means  of  lighting  the  same  at 

16  night.    The  floor  of  every  such  water  closet  compartment  shall  be  made 

17  waterproof  with  asphalt,  tile,  stone  or  some  other  non-absorbing  water- 


1488 


TENEMENT   HOUSES   IN   CITIES. 


[Chap.  144. 


proof  material;  and  such  waterproofing  shall  extend  at  least  six  inches  18 
above  the  floor  so  that  the  floor  can  be  washed  or  flushed  out  without  19 
leaking.  When  the  water  closet  fixture  is  located  in  a  bathroom  the  20 
floor  directly  beneath  the  fixture  and  extending  at  least  one  foot  beyond  21 
it  in  each  direction  shall  be  waterproofed  as  above  provided.  No  drip  22 
trays  shall  be  permitted.  No  water  closet  fixtures  shall  be  enclosed  with  23 
woodwork.  No  water  closet  shall  be  placed  out  of  doors  nor  in  the  cellar  24 
of  any  tenement  house,  whenever  erected,  except  as  provided  in  section  25 
twenty-seven  or  as  an  appurtenance  to  an  engine  or  boiler  room  or  26 
laundry  and  then  only  in  case  such  cellar  closet  is  lighted  and  ventilated  27 
as  required  in  this  chapter  for  a  basement  room.  28 


Plumbing. 
1913,  78(i.  §  32. 


Section  33.  Plumbing  fixtures  shall  not  be  enclosed  with  wood-  1 
work.  All  plumbing  pipes  shall  be  exposed,  except  as  may  otherwise  2 
be  permitted  by  the  board  of  health.  Wherever  plumbing  or  other  pipes  3 
pass  through  floors  or  partitions  they  shall  pass  through  metal  bushings  4 
or  casings  extending  entirely  through  the  floor  or  partition,  and  the  inner  5 
diameter  of  such  bushing  or  casing  shall  in  no  case  exceed  the  outer  6 
diameter  of  such  pipe  by  more  than  one  thirty-second  of  one  inch,  and  7 
such  bushings  or  casings  shall  be  so  set  in  floors  or  partitions  as  to  be  8 
externally  air  tight.  All  plumbing  work  shall  be  sanitary  in  every  par-  9 
ticular  and  except  as  otherwise  specified  in  this  chapter  shall  be  in  10 
accordance  with  the  local  plumbing  regulations.  Pan  and  long  hopper  11 
closets  shall  not  be  used.  12 


^"'^^  Section  34.     All  sinks  and  water  closets  shall  be  provided  with  an     1 

1913, 786,  §  33.  adequate  supply  of  running  water  as  approved  by  the  board  of  health.     2 


Privies. 
1913,  786, 


34. 


Section  35.     No  privy  or  privy  vault  shall  be  permitted  on  the  same     1 
lot  with  any  tenement  house.  2 


FIRE   protection. 

SqulroT''""         Section  3G.     No  tenement  house  of  third  class  construction  shall  1 

1913, 780,  §  35.  Ije  erected  exceeding  two  and  one  half  stories  in  height  in  any  part,  nor  2 

shall  it  be  occupied,  nor  intended,  arranged  or  designed  to  be  occupied,  3 

by  more  than  two  families.     No  tenement  house  of  second  class  con-  4 

struction  shall  be  erected  exceeding  four  stories  in  height,  nor  shall  it  5 

exceed  twenty-fi\'e  hundred  square  feet  in  superficial  area  between  fire  6 

walls.    Any  tenement  house  which  exceeds  four  stories  in  height  shall  7 

be  of  first  class  construction.    A  basement  or  cellar  the  ceiling  of  which  8 

extends  more  than  three  feet  above  the  curb  level  shall  be  a  story  within  9 

the  meaning  of  this  section.  10 


Fire  escapes. 
1913,  786,  §  30. 


Section  37.     In  every  tenement  house  which  exceeds  two  and  one  1 

half  stories  in  height  in  any  part,  there  shall  be  one  or  more  fire  escapes  2 

located  and  constructed  as  provided  in  this  section.  3 

Such  fire  escape  shall  be  so  located  as  to  permit  of  unobstructed  egress  4 

from  every  apartment  on  each  floor  abo\'e  the  ground  floor,  and  in  no  5 

case  shall  such  egress  be  through  any  bathroom,  water  closet,  storage  6 

room  or  public  hall,  nor  shall  any  opening  giving  egress  to  any  fire  escape  7 

be  smaller  in  size  than  the  minimum  provided  for  windows  by  section  8 

twentv-six.  9 


CH-^P.    144.]  TENEMENT   HOUSES   IN   CITIES.  1489 

10  No  fire  escape  shall  be  placed  witbiii  or  open  upon  any  inner  court 

11  unless  such  court  measures  at  least  twenty-four  feet  in  its  least  dimen- 

12  sion,  and  unless  the  consent  of  the  building  department  shall  have  been 

13  obtained  for  such  location. 

14  Fire  escapes  shall,  at  the  option  of  the  owner,  be  constructed  after  one 

15  of  the  methods  hereinafter  specified  and  described,  to  wit: 

16  A.     A  wholly  enclosed  tower  stairway,  with  an  adjacent  open  air 

17  vestibule  at  each  floor. 

18  Every  such  vestibule  shall  be  constructed  with  brick,  terra  cotta  or 

19  concrete  walls  not  less  than  eight  inches  thick  at  any  point,  and  shall 

20  ha\e  at  least  one  of  such  enclosing  walls  formed  by  an  outer  wall  of  the 

21  building,  and  in  such  outer  wall  there  shall  be  a  permanent  opening  to  the 

22  outer  air,  of  an  area  not  less  than  eighty  per  cent  of  the  total  area  of 

23  such  vestibule  wall,  and  of  a  height  not  less  than  the  clear  story  height. 

24  Such  opening,  if  reaching  to  the  floor  of  the  vestibule,  shall  be  provided 

25  with  a  railing  of  suitable  height  and  strength.     The  floors  of  vestibules 

26  shall  be  constructed  wholly  of  incombustible  material. 

27  If  one  apartment  on  each  floor  is  to  be  served  by  this  fire  escape  then 

28  one  side  wall  (i.e.,  a  wall  at  right  angles  to  the  outer  wall)  of  each  vesti- 

29  bule  shall  have  an  approved  fire  door  giving  egress  from  the  adjacent 

30  apartment;   or,  if  two  apartments  on  any  floor  are  to  be  served  by  this 

31  fire  escape,  the  vestibule  at  such  floor  must  be  so  located  as  to  provide 

32  unobstructed  egress  from  each  apartment  by  means  of  an  approved  fire 

33  door  in  each  side  wall  of  the  vestibule.    Such  fire  doors  shall  be  not  less 

34  than  three  feet  in  clear  width  nor  less  than  six  feet  and  six  inches  in  clear 

35  minimum  height,  and  shall  not  be  secured  or  fastened  except  upon  the 

36  apartment  side,  and  then  only  by  means  of  locking  bars  or  other  easily 

37  operated  device  having  no  removable  parts.    If  there  are  openings  from 

38  basement  or  cellar  floors  into  the  vestibule  they  shall  be  provided  with 

39  self-closing  fire  doors  and  there  shall  be  a  permanent  opening  in  the 

40  outer  wall,  all  as  hereinbefore  described. 

41  On  the  side  of  each  vestibule  opposite  the  opening  to  the  outer  air  shall 

42  be  constructed  an  approved  fire  door  giving  access  to  the  stairway  tower. 

43  Every  such  door  shall  be  of  the  size  hereinbefore  described,  of  self-closing 

44  pattern  but  without  locks  or  other  fastenings,  and  shall  contain  an  upper 

45  lighting  panel  of  wire  glass  at  least  six  feet  in  area.    There  shall  be  no 

46  openings  into  such  a  vestibule  other  than  those  hereinbefore  described. 

47  The  stairway  tower  shall  be  not  less  than  six  feet  six  inches  in  clear 

48  width,  and  shall  be  constructed  with  walls  of  brick,  terra  cotta,  or  con- 

49  Crete  not  less  than  eight  inches  thick  at  any  point.     Such  walls  shall 

50  extend  from  the  ground  to  a  point  not  less  than  two  feet  above  the  roof, 

51  and  shall  be  so  constructed  as  to  be  impervious  to  smoke.    There  shall  be 

52  no  doorways  or  other  openings  of  any  kind  in  such  walls  except  the  door- 

53  ways  connecting  with  the  above  described  vestibules,  and  excepting  an 

54  egress  doorway  opening  at  the  ground  level,  such  egress  door  to  open 

55  outwardly,  and  if  secured  to  be  fastened  upon  the  inside  only.    No  such 

56  ground  level  door  shall  be  secured  by  means  of  sliding  bolts,  nor  by  a 

57  lock  or  other  apparatus  requiring  a  key  or  otiier  similar  removable  device. 

58  Within  the  stairway  tower  shall  be  provided  a  stairway  with  a  landing 

59  at  the  level  of  each  doorway,  each  landing  to  extend  the  full  width  of 
GO  the  shaft  and  to  be  at  least  six  inches  wider  in  clear  width  than  the  door 

61  opening  thereon.     Stairs  and  such  intermediate  landings  as  may  be  re- 

62  quired  shall  be  not  less  than  three  feet  in  width  measured  to  the  centre 

63  of  balustrades,  and  shall  be  provitled  with   balustrades  and  wall  rails. 


1490  TENEMENT   HOUSES   IN   CITIES.  [ClU.P.    144. 

Stairs  shall  be  placed  at  an  angle  not  exceeding  forty-five  degrees  from  the  64 

horizontal;  treads  to  be  not  less  than  eight  inches  wide,  and  risers  not  to  65 

exceed  nine  inches  in  height.    Winders  shall  not  be  permitted,  nor  shall  66 

there  be  less  than  three  steps  between  any  two  landings.    All  such  stair-  67 

ways,  landings  and  balustrades  shall  be  of  incombustible  material,  ex-  68 

cept  that  wooden  hand  rails  and  wall  rails  may  be  used.  69 

Every  such  shaft  shall  be  roofed  and  provided  with  a  skylight  not  less  70 

than  sixteen  square  feet  in  area,  glazed  with  wire  glass  one  fourth  inch  or  71 

more  in  thickness  set  in  metal  frame  and  sash,  and  shall  also  have  placed  72 

centrally  in  such  skylight  a  suitable  ventilator  of  not  less  than  two  hun-  7-3 

dred  and  twenty-five  square  inches  area.  74 

The  above  described  type  of  fire  escape  may  at  the  option  of  the  owner  75 

be  used  as  a  regular  service  stairway.  76 

B.  An  enclosed  tower  stairway,  similar  to  the  above,  except  that  77 
access  to  the  same  shall  be  provided  by  means  of  an  outside  balcony  in  78 
each  story  above  the  ground  floor,  instead  of  by  means  of  the  vestibules  79 
hereinbefore  described.  Such  balconies  shall  be  constructed  wholly  of  80 
incombustible  material,  shall  be  provided  with  well  braced  balustrades  81 
of  proper  height  on  outer  side  and  ends,  and  shall  extend  beyond  at  least  82 
one  door  or  window  opening  into  each  adjacent  apartment.  All  doors  83 
opening  into  the  stairway  tower  shall  be  as  described  for  type  "A"  fire  84 
escape.  85 

C.  An  outside  balcony  or  balconies  at  each  floor  above  the  first  floor.  86 
Such  balconies  shall  be  constructed  wholly  of  incombustible  material  87 

approved  by  the  building  department.    They  shall  be  not  less  than  two  88 

feet  in  width  at  any  point,  and  shall  be  provided  with  suitable  balustrades  89 

and  hand  rails  on  outer  sides  and  ends.  90 

Each  balcony  shall  communicate  with  the  balcony  next  below  by  91 

permanent  stairways  placed  at  an  angle  of  not  more  than  forty-five  de-  92 

grees  from  the  horizontal,  treads  shall  not  be  less  than  eight  inches  wide  93 

nor  shall  risers  exceed  nine  inches  in  height,  and  each  stairway  shall  be  94 

provided  with  balustrades  and  hand  rails  and  shall  measure  in  width  not  95 

less  than  twenty-four  inches  measured  from  centres  of  hand  rails.  96 

A  counterbalanced  stairway  shall  be  provided  extending  from  the  low-  97 

est  balcony  to  the  ground,  arranged  to  be  lifted  and  supported  when  98 

not  in  use  in  a  manner  satisfactory  to  and  approved  by  the  building  99 

inspector.  100 

All  such  balconies  shall  extend  to  and  include  at  least  one  floor  or  101 

window  in  every  apartment  on  e\'ery  floor  above  the  ground  floor,  exclu-  102 

sive  of   windows  in  bathrooms,  water  closets,  storage  rooms  or  public  103 

halls.  104 

Floors  of  all  balconies  required  by  this  chapter  and  treads  of  stairs  105 

appurtenant  to  balconies  and  fire  escapes  shall  be  constructed  of  grating  106 

pattern,  and  shall  have  the  bars  separated  by  a  clear  space  of  not  over  107 

one  inch,  and  shall  be  so  constructed  as  safely  to  sustain  a  live  load  of  not  108 

less  than  seventy  pounds  to  the  square  foot  of  floor  area.    Balconies,  109 

unless  it  is  otherwise  provided  by  existing  building  laws  or  regulations,  110 

may  project  into  the  public  highway  for  a  distance  not  greater  than  four  111 

feet  beyond  the  established  building  line.     In  case  of  tenements  with  flat  112 

roof,  the  balconies  on  the  upper  floors  shall,  if  required  by  the  building  113 

department,  be  provided  with  stairs  or  a  gooseneck  ladder  leading  from  114 

such  balcony  to  the  roof  and  securely  fastened  thereto.  115 

All  balustrades  in  this  section  shall  have  vertical  bars  placed  not  more  116 

than  six  inches  on  centres.  117 


Chap.  144.]  tenement  houses  in  cities.  1491 

118  All  balconies  forming  part  of  or  constituting  fire  escapes,  and  all  appur- 

119  tenances  thereof,  shall  be  subject  to  such  supplementary  regulations  as 

120  are  in  force  or  as  may  hereafter  be  adopted  by  any  city  or  by  the  building 

121  department  thereof. 

122  All  doors  opening  upon  fire  escape  balconies  within  six  feet  of  the  stair- 

123  ways  shall  be  of  self-closing  fire  resisting  pattern. 

124  All  windows  opening  upon  fire  escape  balconies  within  six  feet  of  the 

125  stairways  sh.all  be  self-closing  of  wire  glass  set  in  metal  frames  and  sash. 

1  Section  38.     E\'ery  tenement  house  exceeding  two   and   one  half  o^uikheads 

2  stories  in  height  and  having  a  flat  roof  shall  have  in  the  roof  a  bulkhead  jgf./^s"'!  37 

3  or  scuttle  not  less  than  two  feet  by  three  feet  in  size.     Such  bulkhead  or 

4  scuttle  shall  be  covered  with  metal  on  the  outside  and  shall  be  provided 

5  with  stairs  leading  thereto  and  easily  accessible  to  all  tenants  of  the 

6  building.    No  bulkhead  or  scuttle  shall  be  located  in  a  closet  or  room,  but 

7  shall  be  placed  in  the  ceiling  of  the  public  hall  on  the  top  floor,  and  access 

8  through  the  same  to  the  roof  shall  be  direct  and  uninterrupted. 

1  Section  39.     In  every  tenement  house  there  shall  be  at  least  one  stairs  and 

2  flight  of  stairs  extending  from  the  entrance  floor  to  the  top  story.     In  igia'.'^ysl,  M8. 

3  every  tenement  house  of  third  class  construction  there  shall  be  at  least 

4  two  independent  flights  of  stairs  with  separate  entrances  leading  from  the 
.5  entrance  floor  to  the  top  story,  said  flights  of  stairs  being  at  two  points 

6  as  far  apart  as  is  possible  in  the  opinion  of  the  building  department,  and 

7  one  of  said  flights  of  stairs  may  consist  of  outside,  open  stairs  and  bal- 

8  conies.     In  all  cases  said  stairs  shall  be  directly  accessible  from  each 

9  apartment,  without  passing  through  any  other  apartment.     All  stairs 

10  and  balconies  and  all  public  halls  shall  be  at  least  three  feet  six  inches 

11  wide  in  the  clear.    All  stairs  shall  be  constructed  with  a  rise  of  not  more 

12  than   eight   inches   and   with   treads   not   less  than   nine   inches   wide. 

13  AVinders  shall  not  be  permitted  in  any  staircase. 

1  Section  40.     In  every  tenement  house  of  second  class  construction  Fireproof 

2  exceeding  two  and  one  half  stories  in  height  the  stairs  and  stair  halls  atalr^aUs 

3  shall  be  constructed  of  incombustible  material  throughout,  except  that  Jenement" 

4  treads  may  be  of  hard  wood  not  less  than  one  and  three  quarters  inches  ^°^"*^|  "{^^^ 

5  thick.    Wooden  hand  rails  shall  be  permitted.    The  floors  of  all  such  stair  igi-g^'jgg T39 

6  halls  shall  be  constructed  of  incombustible  material,  and  no  wooden 

7  flooring  or  sleepers  shall  be  permitted.    All  such  stairs  and  stair  halls 

8  shall  be  enclosed  on  all  sides  with  brick,  terra  cotta  or  concrete  walls 

9  not  less  than  eight  inches  thick.     There  shall  be  no  transom  or  sash 

10  opening  from  any  such  stair  hall  to  any  other  part  of  the  house.    Each 

11  stair  hall  shall  be  shut  oft"  from  all  non-fireproof  parts  of  the  building, 

12  on  each  story,  by  self-closing  fire  doors,  and  if  glass  is  used  in  such  doors 

13  it  shall  be  of  wire  glass  in  metal  frames  and  sash. 

1  Section  41.     Every  entrance  hall  shall  be  at  least  four  feet  wide  in  Entrance 

2  the  clear.  isis,  786.  §  40.  ''*"'*• 

1  Section  42.     All  shafts  shall  be  constructed  of  incombustible  ma-  shafts  to  be 

2  terials  throughout,  with  self-closing  fire  doors  at  all  openings  at  each  con/truafon. 

3  story;    and,  if  they  extend  to  the  cellar,  shall  also  be  enclosed  in  the  i^i^. ''se,  §  41. 

4  cellar  with  incombustible  walls  and  self-closing  fire  doors  at  all  openings. 

5  In  no  case  shall  any  shaft  be  constructed  of  materials  in  which  any  in- 


1492 


TENEMENT   HOUSES  IN   CITIES. 


[ClL^P.    144. 


flammable  material  or  substance  enters  into  any  of  the  component  6 

parts.    But  nothing  in  this  section  shall  be  so  construed  as  to  require  7 

such  enclosures  about  elevators  or  dumb-waiters  in  the  well  hole  of  stairs  8 

where  the  stairs  themselves  are  enclosed  in  brick  or  stone  walls,  and  9 

are  entirely  constructed  of  incombustible  materials  as  provided  in  tliis  10 

chapter.  11 

Ceiling  of             Section  4.3.     In  everv  tenement  house  of  second  class  construction  1 

cdi'^r  etc  ^ 

i9i'3,'7S6;  §  42.  the  cellar  ceiling  and  the  ceiling  and  side  walls  of  the  cellar  stairs  shall  2 

be  plastered  on  metal  lath,  and  the  stairs  shall  be  provided  at  the  top  3 

with  a  self-closing  fire  door.  4 


Closets  under 
first  story 
stairs  not 
allowed. 


Section  44.     No  closet  of  any  kind  shall  be  constructed  under  any     1 
staircase  leading  from  the  first  story  to  the  upper  stories,      laia,  7S6,  §43.         2 


Section  4.5.     There  shall  be  an  entrance  to  the  cellar  or  other  lowest 


Outside 
cellar  en- 

1913^^756  §  44  story  from  the  outside  of  the  building. 


Finish  about  Section  46.     Whene\-er   the   plaster   finish   about   any   chimney   is  1 

1913. 7'86',  5  45.  carried  on  furring,  the  furring  strips  shall  be  of  metal,  and  only  metal  2 

lathing  shall  be  used.    All  recesses  about  funnel  holes  shall  be  finished  .3 

wholly  with  incombustible  material  at  sides,  top  and  bottom.  4 


Fire  walls. 
1913,  786,  §  40. 


Section  47.     Where  non-fireproof  tenement  houses  are  built  in  the  1 

form  of  double  houses  or  terraces  or  attached  or  semi-attached  rows,  2 

there  shall  be  a  fire  wall  of  brick,  concrete  or  terra  cotta  or  other  hard  3 

incombustible  material  approved  by  the  inspector  of  buildings,  separat-  4 

ing  every  such  house  from  each  adjoining  house,  and  such  wall  shall  have  5 

no  openings  therein,  and  shall  extend  from  the  floor  of  the  basement  or  6 

cellar  to  not  less  than  one  foot  above  the  roof,  and  out  to  the  boarding  7 

of  the  walls.    No  wooden  beams  shall  be  carried  tlirough  the  fire  walls.  8 


Roofing  Section  48.     Roofs  in  all  parts  and  the  sides  of  all  dormer  windows 

1913, 786,  §  47.  shall  be  covered  with  fire  resisting  material  satisfactory  to  the  building 
inspector. 


Wooden 
tenement 
house.s  not  to 
be  used  for 
certain  pur- 
poses above 
second  story. 
1913,  78G,  §  48. 


Section  49.  In  no  wooden  tenement  house  shall  any  story  or  part 
thereof  above  the  second  story  be  rented,  leased,  let  or  hired  out  to  be 
occupied  for  housekeeping,  nor  shall  it  be  intended,  arranged  or  designed 
to  be  occupied  for  housekeeping,  nor  shall  any  provision  be  made  for 
cooking,  nor  shall  any  cooking  be  done  above  the  second  story. 


Lighting  and 
ventilation  of 


rooms. 
1913,  786, 


49. 


improvements  in  old  buildings. 

Section  50.  No  room  or  alcove  shall  thereafter  be  occupied  for  living 
purposes  unless  it  shall  have  a  window  with  an  area  of  not  less  than  ten 
square  feet  between  stop  beads  opening  directly  upon  the  street,  or  upon 
a  yard  not  less  than  ten  feet  deep,  or  above  the  roof  of  an  adjoining 
buikling,  or  upon  a  court  of  not  less  than  thirty  square  feet  in  area, 
open  to  the  sky  without  roof  or  skylight. 


ventiMon"of         Section  51.     PubHc  halls  and  stairs  shall  be  provided  with  sufficient     1 
ign °7S6"§  50  ^^S^^^  *°  permit  the  reading  of  twelve  point  t\-pe  in  the  daytime  in  any     2 


Chap.  144.]  tenement  houses  in  cities.  1493 

3  part  thereof.    Light  and  ventilation  in  such  halls  shall  be  from  the  outer 

4  air,  except  when  in  the  opinion  of  the  building  inspector  it  is  impracti- 

5  cable,  in  which  case  the  lighting  and  ventilation  shall  be  such  as  to  meet 

6  the  approval  of  the  board  of  health. 

7  All  new  skylights  thereafter  placed  in  a  tenement  house  shall  be  pro- 

8  vided  with  ridge  ventilators  having  a  minimum  opening  of  forty  square 

9  inches,  and  also  with  either  fixed  or  movable  louvres,  or  with  movable 

10  sashes,  and  shall  be  of  such  size  as  may  be  determined  to  be  practicable 

11  by  the  building  inspector. 

1  Section  52.     Woodwork  enclosing  sinks  placed  in  the  public  halls  sinks. 

2  or  stairs  shall  be  removed  and  the  spaces  underneath  shall  be  left  open. 

3  The  floors  and  wall  surfaces  beneath  and  around  the  sink  shall  be  put 

4  in  good  order  and  repairs,  and  if  of  wood  shall  be  well  painted  with  light 

5  colored  paint. 

1  Section  53.     Woodwork   enclosing   every  water  closet  fixture  shall  J^i3''''78™|'|2 

2  be  removed,  and  the  space  underneath  the  seat  shall  be  left  open.    The 

3  floor  and  other  surfaces  beneath  and  around  the  closet  shall  be  put  in 

4  good  order  and  repair,  and  if  of  wood  shall  be  well  painted  with  light 

5  colored  paint. 

1  Section  54.    Where  a  connection  with  a  sewer  is  possible,  all  cess-  Removal  of 

2  pools,   school  sinks,  privy  vaults  or  other  similar  receptacles  used  to  mT.Tse',  §  53. 

3  receive  fecal  matter,  urine  or  sewage  shall  within  one  year  thereafter 

4  be  completely  removed  and  the  places  where  they  were  located  properly 

5  disinfected  under  the  direction  of  the  board  of  health.    Such  appliances 

6  shall  be  replaced  by  individual  water  closets  of  durable  non-absorbent 

7  material,  properly  sewer  connected,  with  individual  traps  and  properly 

8  connected  flush  tanks  providing  an  ample  flush  of  water  thoroughly  to 

9  cleanse  the  bowl.    Each  water  closet  shall  be  located  inside  the  tenement 

10  house  in  a  compartment  completely'  separated  from  every  other  M'ater 

11  closet,  and  such  compartment  shall  contain  a  window  of  not  less  than 

12  three  square  feet  in  area  opening  directly  upon  the  street  or  yard,  or  on 

13  a  court  of  which  the  least  dimension  is  not  less  than  three  feet  and  the 

14  area  not  less  than  fifteen  square  feet.     The  floors  of  the  water  closet 

15  compartment  shall  be  waterproof,  as  provided  in  section  thirty-two. 

16  There  shall  be  provided  at  least  one  water  closet  for  each  apartment 

17  unless,  in  tlie  opinion  of  the  building  inspector,  this  shall  be  impracti- 

18  cable;  but  in  no  case  shall  there  be  less  than  one  water  closet  for  every 

19  two  apartments.     Such  water  closets  and  all  plumbing  in  connection 

20  therewith  shall  be  sanitary  in  every  respect,  and,  except  as  in  this  section 

21  otherwise  provided,  shall  be  in  accordance  with  the  laws,  ordinances  and 

22  regulations  in  relation  to  plumbing  and  drainage.     Pan  and  long  hopper 

23  closets  shall  not  be  permitted. 

1  Section  55.     Any  part  of  a  floor  or  wall  below  the  adjoining  grade,"  Basements 

2  and  in  any  case  the  lowest  floor,  shall  be  damp  proof,  and,  when  neces-  bSdamp" '" 

3  sary,  shall  be  concreted  with  a  finished  surface.    The  cellar  ceiling  shall  fgis'^so  5  54 

4  be  plastered  when  so  required  by  the  building  inspector,  except  where 

5  such  ceiling  is  already  well  covered  with  a  metal  ceiling  or  where  the 

6  first  floor  above  the  cellar  is  constructed  of  iron  beams  and  fireproof 

7  filling. 


1494 


TENEMENT   HOUSES   IN   CITIES. 


[ClL\P.   144. 


^nd'coiTrtf  "'*'      Section  56.     At  the  bottom  of  every  shaft  and  court  there  shall  be 

1913, 780,  §  55.  ^  door  giving  sufficient  access  to  such  shaft  or  court  to  enable  it  to  be 

properly  cleaned  out;  provided,  that  where  there  is  already  a  window 

giving  proper  access  to  such  shaft  or  court,  such  window  shall  be  deemed 

sufficient. 


Construction 
of  fire  escapes. 
1913,786,156. 


Section  57.  All  non-fireproof  tenement  houses  which  are  tlu-ee  or  1 
more  stories  in  height  and  do  not  have  fireproof  stairs  and  stair  halls  or  2 
adequate  fire  escapes  as  required  by  this  chapter,  except  those  of  three  3 
stories  which  have  two  independent  means  of  egress  not  directly  con-  4 
nected  with  each  other,  approved  in  writing  by  the  building  inspector,  5 
and  directly  accessible  to  each  apartment,  shall  be  provided  either  with  6 
incombustible  outside  stairways  or  with  incombustible  fire  escapes  directly  7 
accessible  to  each  apartment  without  passing  through  a  public  hall.  8 

All  fire  escapes  thereafter  erected  shall  be  located  and  constructed  as  9 
prescribed  in  section  thirty-seven.  10 

No  existing  fire  escape  shall  be  deemed  adequate  unless  the  following  11 
conditions  are  complied  with:  12 

(1)  Each  apartment  above  the  ground  floor  shall  have  a  fire  escape  13 
balcony  directly  accessible  to  it.  All  balconies  shall  be  capable  of  sus-  14 
taining  a  li^'e  load  of  seventy  pounds  per  square  foot.  15 

(2)  Each  balcony  shall  be  properly  connected  with  one  other  balcony  16 
by  adequate  stairs  or  stationary  ladders  with  openings  not  less  than  17 
twenty-four  by  thirty-six  inches,  unless  such  balconies  connect  adjoining  18 
houses  or  adjoining  parts  of  the  same  house  separated  from  each  other  19 
by  a  fire  Mall  in  which  there  are  no  openings  except  such  as  are  protected  20 
by  self-closing  fire  doors.  21 

(3)  All  fire  escapes  shall  have  proper  ladders  from  the  lowest  balcony  22 
of  sufficient  length  to  reach  a  safe  landing  place  beneath.  23 

(4)  All  fire  escapes  not  on  the  street  shall  have  a  safe  and  adequate  24 
means  of  egress  from  the  yard  or  court  to  the  street  or  to  adjoining  25 
premises.  26 

(5)  Prompt  and  ready  access  shall  be  had  to  all  fire  escapes,  which  27 
shall  not  be  obstructed  in  any  way.  28 

No  existing  fire  escape  shall  be  extended  or  have  its  location  changed  29 
except  with  the  written  approval  of  the  inspector  of  buildings.  30 


Means  of 


Section  58.    Whenever   a   tenement   house   is   not   provided   with  1 

1913, 786,  §  57.  sufficient  fire  escapes  or  with  sufficient  means  of  egress  in  case  of  fire,  2 

the  building  inspector  shall  order  such  additional  fire  escapes  and  other  3 
means  of  egress  as  may  be  necessary. 


Alterations. 
1913,  786,  §  .58. 


alter.\tions  of  old  buildings. 

Section  59.     No  tenement  house  shall  at  any  time  be  so  altered  1 

as  to  be  in  violation  of  the  requirements  of  sections  ten  to  forty-nine,  2 

inclusive,  except  as  hereinafter  pro\'ided:  3 

(1)  Any  additional  room  or  hall  that  is  thereafter  constructed  or  4 
created  in  a  tenement  house  shall  comply  in  all  respects  with  said  sec-  5 
tions,  except  that  such  rooms  may  be  of  the  same  height  as  the  other  6 
rooms  in  the  same  story  of  the  house.  7 

(2)  All  shafts  shall  be  constructed  fireproof  tlu-oughout;  with  fire-  8 
proof  self-closing  doors  at  all  openings,  at  each  story;  and,  if  they  extend  9 
to  the  cellar,  shall  also  be  enclosed  in  the  cellar  with  fireproof  walls  and  10 


ClL\P.    144.]  TENEMENT   HOUSES   IN   CITIES.  1495 

11  fireproof  self-closing  doors  at  all  openings.    In  no  case  shall  any  shaft  be 

12  constructed  of  materials  in  which  any  inflammable  material  or  substance 

13  enters  into  any  of  the  component  parts.     But  nothing  in  this  section 

14  shall  be  so  construed  as  to  require  such  enclosures  about  elevators  or 

15  dumb-waiters  in  the  well  hole  of  stairs  where  the  stairs  themselves  are 

16  enclosed  in  brick  or  stone  walls,  antl  are  entirely  constructed  of  fireproof 

17  materials  as  proviiled  in  this  chapter. 

18  (3)  No  tenement  house  of  third  class  construction  containing  more 

19  than  two  apartments  shall  thereafter  be  enlarged  or  extended;    except 

20  that  a  wooden  extension  not  exceeding  in  total  area  seventy  square  feet 

21  may  be  added  to  an  existing  wooden  tenement  house,  provided  that     ^ 

22  such  extension  is  used  solely  for  bathrooms  or  water  closets. 

MAINTENANCE  AND   USE. 

1  Section  60.     In  every  tenement  house  where  the  public  halls  and  ^ufifo'ifaiis 

2  stairs  are  not,  in  the  opinion  of  the  board  of  health,  sufficiently  lighted,  ™  ti^e  daytime. 

3  the  owner  of  the  house  shall  keep  a  proper  light  burning  in  the  hallway, 

4  near  the  stairs,  upon  each  floor,  as  may  be  necessary,  from  sunrise  to 

5  sunset. 

1  Section  61.     In  every  tenement  house  occupied  by  more  than  two  Lighting  of 

2  families  a  proper  light  shall  be  kept  burning  by  the  owner  in  the  public  at'n'iKht!'"'' 

3  hallways,  near  the  stairs,  upon  the  entrance  floor,  and  upon  the  second  ^^^^'  '''^^'  ^  ^'^■ 

4  floor  above  the  entrance  floor  of  the  house,  every  night  from  sunset  to 

5  sunrise  throughout  the  year,  and  upon  all  other  floors  of  the  said  house 

6  from  sunset  until  ten  o'clock  in  the  evening. 

1  Section  62.     No  water  closet  shall  be  permitted  in  the  cellar   of  water  closets 

in  c&Uqfs. 

2  any  tenement  house,  except  as  provided  in  sections  twenty-seven  and  i9i3, 7S6,  §  m. 

3  tlyrty-two. 

1  Section  63.     In  every  existing  tenement  house,  there  shall  be  pro-  water  closet 

2  vided  at  least  one  water  closet  for  every  two  apartments,    lois,  786,  §  62.      tions™""''''" 

1  Section  64.     In  existing  tenement  houses  no  room  in  the  cellar  shall  Occupation  of 

ri      1  i>  1  •IP,..  ..  .  nasenient  and 

2  thereafter  be  occupied  for  living  purposes  except  as  provided  in  section  cellar  rooms 


o 


twentv-seven.    And  no  room  in  the  basement  of  such  houses  shall  be  so  purposes 


4  occupied  unless  all  the  following  conditions  are  complied  with:   Every 

5  such  room  shall  be  at  least  eight  feet  high  in  every  part  from  the  floor  to 

6  the  ceiling,  and  the  ceiling  in  every  part  shall  be  at  least  four  and  one 

7  half  feet  above  the  curb  level  of  the  street  or  the  level  of  the  yard  or 

8  court  in  front  of  such  room.    There  shall  be  appurtenant  to  every  such 

9  room  the  use  of  a  water  closet.    E\'ery  such  room  shall  liave  a  window 

10  opening,  as  provided  in  section  fifty,  of  at  least  twelve  square  feet  in  size 

1 1  clear  of  the  sash  frame,  which  shall  open  readily  for  purposes  of  ventila- 

12  tion.    The  lowest  floor  shall  be  waterproof  and  damp  proof.    Every  such 

13  room  shall  have  sufficient  light  and  ventilation,  shall  be  well  drained  and 

14  dry,  and  shall  be  fit  for  human  habitation. 


1913,  786,  5  63. 


Floors  around 


1  Section  65.     Li  all  tenement  houses  the  floor  or  other  surface  be- 

2  neath  and  around  water  closets  and  sinks  shall  be  maintained  in  good  "nd'sinto'"" 

3  order  and  repair,  and  if  of  wood  shall  be  kept  well  painted  with  light  iai3,7S6,  §64. 

4  colored  paint. 


1496 


TENEMENT   HOUSES   IN   CITIES. 


[Chap.  144. 


Repairs. 
1913,  786,  §  65. 


Section  66.     Every  tenement  house  and  all  the  parts  thereof  shall  be  1 

kept  in  good  repair,  and  the  roof  shall  be  kept  so  as  not  to  leak,  and  all  2 

rain  water  shall  so  be  drained  and  conveyed  therefrom  as  to  prevent  3 

dampness  in  the  ■walls,  ceilings,  yards  or  areas.  4 


Water  supply. 
1913.  7Sfi.  I  66. 


Section  67.     Every  tenement  house  shall  have  water  furnished  in  1 

sufficient  quantity  at  one  or  more  places  in  each  apartment.    The  owner  2 

shall  provide  proper  and  suitable  tanks,  pumps  or  other  appliances  to  .3 

receive  and  distribute  an  adequate  and  sufficient  supply  of  water  at  each  4 

apartment  in  the  said  house  at  all  times  of  the  year  during  all  hours  of  5 

the  day  and  night.    But  a  failure  in  the  general  supply  of  M-ater  furnished  6 

by  the  citj'  authorities  or  from  the  freezing  or  bursting  of  pipes  shall  not  7 

be  construed  to  be  a  failure  on  the  part  of  such  owner,  provided  that  8 

proper  and  suitable  appliances  to  receive  and  distribute  water  have  been  9 

provided  in  the  said  house.  10 


Buildings  to 
be  kept  clean 
and  free  from 
refuse  matter, 

1913,  786,  §  67. 


Section  68.  The  owner  of  every  tenement  house  shall  cause  every 
pmrt  thereof  to  be  kept  clean  and  free  from  any  accumulation  of  dirt, 
filth  and  garbage  or  other  refuse  matter  in  or  on  the  same,  or  in  the 
cellars,  halls,  passages,  rooms,  areas,  yards,  courts,  and  spaces  ap- 
purtenant thereto.  The  owner  shall  thoroughly  cleanse  every  part  of 
a  tenement  house  whenever  ordered  so  to  do  by  the  board  of  health. 


Walls  of  courta 
to  be  whitened, 

1913,  786,  §  68. 


Section  69.  The  walls  of  all  courts,  except  those  opening  on  a 
street,  unless  built  of  a  light  colored  brick  or  stone,  shall  be  thoroughly 
whitened  by  the  owner,  or  shall  be  painted  a  light  color  by  him,  and 
shall  so  be  maintained.  Such  whitening  or  paint  shall  be  renewed  when- 
ever necessary  as  may  be  required  by  the  board  of  health. 


Walls  and 
ceilings  of 
rooms,  etc. 
1913,  786,  §  69. 


Section  70.  In  all  tenement  houses  the  board  of  health  may  re- 
quire the  walls  and  ceilings  of  every  room  that  does  not  open  directly 
on  the  street  to  be  whitened  or  painted  with  white  paint  when  necessary 
to  improve  the  lighting  of  such  room,  and  may  require  this  to  be  re- 
newed as  often  as  may  be  necessarv. 


Wall  paper. 
1913,  7S6,  §  ■ 


•0.  Section  71.  No  wall  paper  shall  be  placed  upon  the  wall  or  ceiling  1 
of  any  tenement  house  unless  the  wall  or  ceiling  has  been  thoroughly  2 
cleaned.  3 


imashtVetc.  Section  72.  The  owucr  of  every  tenement  house  shall  provide  and  1 
vid^.''^"'  maintain  therefor  suitable  covered  water  tight  receptacles  for  ashes,  2 
1913. 786,  §  71    rubbish,  garbage,  refuse  and  other  like  matter.  3 


pr"hib°t^^'  Section  73.     No  swine  shall  be  kept  in  a  tenement  house,  or  on  the  1 

1913. 786,  §  72.  game  lot  therewith.     No  horse,  cow,  calf,  sheep,  goat  or  fowl  shall  be  2 

kept  in  a  tenement  house  or  on  the  same  lot  therewith  within  twenty-  3 

five  feet  of  the  tenement  house.    No  tenement  house,  or  the  lot  upon  4 

which  it  is  situated,  shall  be  used  for  the  storage  or  handling  of  rags,  5 

nor  as  a  place  of  public  assemblage.  6 

u>°\t°ille''of       Section  74.     No  tenement  house,  and  no  part  thereof,  or  of  the  lot  1 

mSeri'ab''etc     upou  which  it  is  situatcd,  shall  be  used  as  a  Dlace  of  storage,  keeping  2 


mSeri'ab''etc     upou  which  it  is  situatcd,  shall  be  used  as  a  place  of  storage,  keepii  ^ 
1913,786,5  73.  or  handling  of  any  article  dangerous  or  detrimental  to  life  or  health, 


Chap.  144.]  tenement  houses  in  cities.  1497 

4  nor  for  the  storage,  keeping  or  handling  of  feed,  hay,  straw,  excelsior, 

5  cotton,  paper  stock,  feathers,  rags  or  other  easily  combustible  articles. 

1  Section  75.     No  bakery  or  place  of  business  in  which  fat  is  boiled  ^t'^oiun'""' 

2  shall  be  maintained  in  any  tenement  house.  i9i3,  -so.  §  74. 

1  Section  76.     There  shall  be  no  transom,  window  or  door  opening  other  danger- 

2  into  a  hall  from  any  part  of  a  tenement  house  where  paint,  oil,  spirituous  igis.reeryTs. 

3  liquors  or  drugs  are  stored  for  the  purpose  of  sale  or  otherwise. 

1  Section  77.     In  any  tenement  house  in  which  the  owner  thereof  does  .Tanitor  or 

2  not  reside,  there  shall  be  a  janitor,  housekeeper  or  other  responsible  i9i3?7S6!'T76. 

3  person  who  shall  have  charge  of  the  same  if  the  board  of  health  shall 

4  so  require. 

1  Section  78.     If  a  room  in  a  tenement  house  is  overcrowded,  the  OvererowdinE. 

2  board  of  health  may  order  the  number  of  persons  sleeping  or  living  in 

3  said  room  to  be  so  reduced  that  there  shall  not  be  less  than  four  hundred 

4  cubic  feet  of  air  to  each  adult,  and  three  hundred  cubic  feet  of  air  to 

5  each  child  under  twelve  occupying  the  room. 

1  Section  79.     No  tenement  house  or  part  thereof,  shall  be  used  for  Letting  of 

2  the  letting  of  lodgings  unless  the  person  letting  the  same  shall  first  file  regulated. 

3  a  notice  in  writing  of  the  proposed  letting  in  the  office  of  the  board  of  ^^^^'  '^'''^  '*■ 

4  health,  nor  shall  any  person  not  a  member  of  the  family  be  taken  to 

5  live  within  an  apartment  occupied  by  any  family  without  such  written 

6  notice.    The  owner  shall  see  that  this  section  is  at  all  times  complied 

7  with,  and  a  failiue  so  to  comply  on  the  part  of  any  tenant,  after  due 

8  and  proper  notice  from  the  owner,  shall  be  deemed  sufficient  cause  for 

9  the  summary  eviction  of  such  tenant  and  the  cancellation  of  his  lease. 

1  Section  SO.     Whenever  any  tenement  house  or  building,  structure.  Board  of 

2  excavation,  business  pursuit,  matter  or  thing,  in  or  about  a  tenement  order  repairs. 

3  house,  or  the  lot  on  which  it  is  situated,  or  the  plumbing,  sewerage,  i|'"i3  ygg  §  79. 

4  drainage,  light  or  ventilation  thereof,  is,  in  the  opinion  of  the  board 

5  of  health,  in  a  condition  or  in  eflPect  dangerous  or  detrimental  to  life  or 

6  health,  the  board  may  declare  that  the  same,  to  the  extent  which  it  may 

7  specify,  is  a  public  nuisance,  and  may  order  the  same  to  be  removed, 

8  abated,  suspended,  altered  or  otherwise  improved  or  purified,  as  the 

9  order  shall  specify.    The  board  may  also  order  or  cause  any  tenement 

10  house  or  part  thereof,  or  any  excavation,  building,  structure,  sewer, 

11  plumbing,  pipe,  passage,  premises,  ground,  matter  or  thing,  in  or  about 

12  a  tenement  house,  or  the  lot  on  which  it  is  situated,  to  be  purified, 

13  cleansed,  disinfected,  removed,  altered,  repaired  or  improved.     If  any 

14  order  of  the  board  is  not  complied  with,  within  ten  days  after  the  serA'ice 

15  thereof,  or  within  such  longer  or  shorter  time  as  the  board  may  designate, 

16  then  such  order  may  be  executed  by  said  board  through  its  officers, 

17  agents,  employees  or  contractors. 

1  Section  81.     Whenever  it  shall  be  certified  by  an  inspector  or  officer  infected  and 

2  or  agent  of  the  board  of  health  that  a  tenement  house,  or  any  part  thereof,  houses  to  be 

3  is  infected  with  contagious  disease,  or  that  it  is  unfit  for  human  habita-  igis'fse,  §  so. 

4  tion,  or  dangerous  to  life  or  health  by  reason  of  want  of  repair,  or  of 

5  defects  in  the  drainage,  plumbing,  ventilation  or  the  construction  of  the 


1498  TENEMENT   HOUSES   IN   CITIES.  [ChAP.    144. 

same,  or  by  reason  of  the  existence  on  the  premises  of  a  nuisance  hkely  6 

to  cause  sickness  among  the  occupants  of  said  house,  the  board  may  7 

issue  an  order  requiring  all  persons  therein  to  vacate  such  house,  or  part  8 

thereof,  within  not  less  than  twenty-four  hours  nor  more  than  ten  days,  9 

for  the  reasons  to  be  mentioned  in  said  order.    In  case  such  order  is  not  10 

complied  with  within  the  time  specified,  the  board  may  cause  said  tene-  11 

ment  house  or  part  thereof  to  be  vacated.    The  board,  whenever  it  is  12 

satisfied  that  the  danger  from  said  house  or  part  thereof  has  ceased  to  13 

exist,  or  that  it  is  fit  for  human  habitation,  may  revoke  said  order,  or  14 

may  extend  the  time  within  which  to  comply  with  the  same.  15 

fire'^esca°pes.  SECTION  82.     The  owucr  of  cvcry  tenement  house  shall  keep  all  fire  1 

1913,  786,  §  81.  escapes  thereon  in  good  order  and  repair,  and  whenever  tiiey  become  2 

rusty  shall  have  them  properly  painted  with  two  coats  of  paint.     No  3 

person  sliall  at  any  time  place  any  encumbrance  of  any  kind  before  or  4 

upon  any  such  fire  escape.  5 

he^!'"eio'^"{o"       Section  83.     All  scuttles  and  bulkheads,  and  all  stairs  or  ladders  1 

accessible  at  all  '^^"^1"?  thereto,  shall  be  easily  accessible  to  all  tenants  of  the  building,  2 

Jif'S^.'iJJ-  5  o,  and  kept  free  from  encumbrance,  and  ready  for  use  at  all  times.     No  3 

"'  scuttle  or  bulkhead  door  shall  at  any  time  be  locked  with  a  key,  but  4 

either  may  be  fastened  on  the  inside  by  movable  bolts  or  hooks.  5 

REQUIREMENTS   AND    REMEDIES. 

bSngs'"^  Section  84.     In  a  city  which  accepts  this  chapter,  or  has  accepted  1 

1913°'ts6'^§  83  Corresponding  provisions  of  earlier  laws,  and  in  which  the  office  of  build-  2 

ing  inspector  or  a  similar  office  does  not  exist,  the  mayor  shall  annually  3 

appoint  an  inspector  of  buildings.  4 

co™ractk)n  Section  85.     Before  the  construction  or   alteration  of  a  tenement     1 

of  tenemen"  housc,  or  the  alteration  or  conversion  of  a  building  for  use  as  a  tenement  2 
igiT'yso  s  84  house,  is  begun,  and  before  the  construction  or  alteration  of  any  building  3 
or  structure  on  the  same  lot  with  a  tenement  house,  the  owner  shall  sub-  4 
mit  to  the  building  inspector  a  detailed  statement  in  wTiting,  verified  by  5 
the  affidavit  of  the  person  making  the  same,  of  the  specifications  for  such  6 
tenement  house  or  building,  upon  blanks  or  forms  to  be  furnished  by  7 
such  inspector,  and  also  full  and  complete  copies  of  the  plans  of  the  work,  8 
together  with  a  plan  of  the  lot  on  which  the  same  is  or  is  to  be  situated,  9 
showing  the  location,  character  and  size  of  all  buildings  thereon,  and  the  10 
exact  dimensions  of  said  lot  together  with  its  description  by  metes  and  11 
bounds.  The  said  statement  shall  give  in  full  the  name  and  residence,  12 
by  street  and  number,  of  the  owner  of  the  tenement  house  or  other  build-  13 
ing.  If  such  construction,  alteration  or  conversion  is  proposed  to  be  14 
made  by  any  other  person  than  the  owner  of  the  land  in  fee,  the  statement  15 
shall  contain  the  full  name  and  residence,  by  street  and  number,  not  16 
only  of  the  owner  of  the  land,  but  of  every  person  interested  in  the  tene-  17 
ment  house,  either  as  owner,  lessee  or  in  any  representati\^e  capacity.  IS 
The  affidavit  shall  allege  that  said  specifications  and  plans  are  true  and  19 
contain  a  correct  description  of  such  tenement  house  or  other  building,  20 
structure,  lot  and  proposed  work.  The  statements  and  affiflavit  herein  21 
provided  for  may  be  made  by  the  owner,  or  by  the  person  who  proposes  22 
to  make  the  construction,  alteration  or  conversion,  or  by  his  agent.  23 
No  person  shall  be  recognized  as  the  agent  of  the  owner,  unless  he  shall  24 
file  with  the  building  inspector  a  written   instrument,  signed  by  the  25 


Chap.  144.]  tenement  houses  in  cities.  1499 

26  owner,  designating  him  as  such  agent.    Any  false  swearing  in  a  material 

27  point  in  any  such  affidavit  shall  be  deemed  perjury.    The  said  specifica- 

28  tions,  plans  and  statements  shall  be  filed  in  the  office  of  the  building  in- 

29  spector  and  shall  be  public  records,  and  no  such  specifications,  plans  or 

30  statements  shall  be  removed  from  the  said  office.    The  building  inspector 

31  shall  cause  all  such  plans  and  specifications  to  be  examined. 

32  If  such  plans  and  specifications  conform  to  the  provisions  of  law  they 

33  shall  be  approved  in  wTiting  by  the  building  inspector,  and  he  may  from 

34  time  to  time  approve  changes  in  any  plans  and  specifications,  provided 

35  that  the  plans  and  specifications  so  altered  are  in  conformity  with  law, 

36  but  the  buUding  inspector  shall  not  approve  any  plans  or  specifications 

37  or  any  changes  in  the  same  until  the  board  of  health  has  certified  that 

38  the  said  plans  and  specifications  conform  to  the  law  relative  to  light, 

39  ventilation  and  sanitation.    The  construction,  alteration  or  conversion 

40  of  such  tenement  house,  building  or  structure  or  any  part  thereof,  shall 

41  not  be  begun  luitil  the  filing  of  the  said  specifications,  plans  and  state- 

42  ments,  and  the  approval  thereof,  as  above  provided.    The  construction, 

43  alteration  or  conversion  of  any  such  house,  building  or  structure,  shall 

44  be  in  accordance  with  the  said  approved  specifications  and  plans.    Any 

45  permit  or  approval  which  may  be  issued  by  the  building  inspector  but 

46  under  which  no  w'ork^has  been  done  above  the  foundation  walls  within 

47  one  year  after  the  issuance  of  the  permit  or  approval,  shall  expire  by 

48  limitation.    Said  inspector  may  revoke  or  cancel  any  permit  or  approval 

49  in  case  of  any  failure  or  neglect  to  comply  with  any  provision  of  this 

50  chapter,  or  in  case  any  false  statement  or  representation  was  made  in 

51  any  specifications,  plans  or  statements  submitted  or  filed  for  such  permit 

52  or  approval. 

1  Section  86.     No  building  thereafter  constructed  as  or  altered  into  a  Buiidingnot 

2  tenement  house  shall  be  occupied  in  whole  or  in  part  for  human  habitation  unuf  aTte""'^'' 

3  until  the  building  conforms  in  all  respects  to  the  requirements  of  law.  i9i'3°7|6,\'''s5. 

4  Upon  notice  of  the  completion  of  the  construction,  alteration  or  conver- 

5  sion  of  a  tenement  house,  the  building  inspector  and  the  board  of  health 

6  shall  inspect  the  building  forthwith  and  it  shall  not  be  occupied  as  a  place 

7  of  habitation  unless  it  conforms  to  the  requirements  of  this  chapter. 

1  Section  87.     Any  court  having  jiu-isdiction  in  equity,  or  any  justice  Enforcement 

2  thereof  may  upon  the  application  of  the  city  solicitor,  building  inspector  igr^Tso^l^e. 

3  or  the  board  of  health  of  any  city,  restrain  the  construction,  alteration, 

4  repair,  maintenance,  use,  or  occupation  of  a  building  or  other  structure 

5  in  violation  of  this  chapter  and  order  its  removal  or  abatement  as  a 

6  nuisance,  and  compel  compliance  with  any  provision  of  this  chapter. 

1  Section  88.     A  building  or  other  structure  which  is  erected,  altered,  building 

r»'*i  1   •  •    1      •  e»     1  •  erected,  etc., 

2  manitamed  or  used  m  violation  of  this  chapter  shall  be  deemed  a  com-  '"  violation 

3  mon  nuisance  without  other  proof  thereof  than  proof  of  such  unlawful  be  deemed  a 

4  construction,  maintenance  or  use,  and  the  board  of  health  may,  if  such  nubance.etc. 

5  violation  is  of  any  section  of  this  chapter  relative  to  light,  ventilation  or  ^^^*'  ^*''"  *  ^^' 

6  sanitation,  and  the  building  inspector  may,  if  said  violation  is  of  any 

7  other  provision  of  this  chapter,  order  the  owner  of  said  premises  at  his 

8  own  expense  to  abate  or  remove  said  nuisance  within  twenty-four  hours, 

9  or  within  such  further  time  as  said  board  of  health  or  said  building  in- 

10  spector,  as  the  case  may  be,  considers  reasonable,  after  notice  to  be  served 

1 1  in  the  manner  provided  in  section  ninety-five,  and  if  the  owner  or  occu- 


1500 


TENEMENT  HOUSES   IN   CITIES. 


[Chap.  144. 


pant  fails  to  comply  M-ith  such  order,  the  board  may  abate  or  remove  the  12 
miisance,  and  all  expenses  incurred  thereby  shall  be  paid  by  the  person  1.3 
who  caused  or  permitted  the  same.  14 


Penalties. 
1913,  7S6,  I  88. 


Section  89.     AMioever  violates  any  pro\asion  of  this  chapter  shall  1 

be  punished  by  a  fine  of  not  less  than  ten  dollars.     Any  person  who  2 

violates  any  provision  of  this  chapter,  after  he  has  been  served  with  .3 

a  notice  or  order  as  pro^•ided  by  section  ninety-fi-\'e,  or  who  fails  to  comply  4 

M'ith  such  notice  or  order  within  ten  days  after  such  service,  or  continues  5 

to  violate  any  provision  or  requirement  of  this  chapter  in  the  respect  6 

named  in  such  notice  or  order,  shall  in  addition  be  punished  by  a  fine  of  7 

not  less  than  five  nor  more  than  twenty  dollars  for  each  day  after  the  8 

first  dav  during  which  the  violation  continues.  9 


Action  of 
board  of 
health,  etc., 
may  be  re- 
viewed 
by  superior 
court. 
1913,  786,  §  89. 


Section  90.     Any  person,  the  value  of  whose  property  may  be  affected  1 

by  any  action  of  the  board  of  health  or  of  the  building  inspector,  may  2 

have  the  action  of  said  board  or  inspector  reviewed  by  the  superior  court  3 

by  any  appropriate  process;    provided,  that  proceedings  are  instituted  4 

within  twenty  days  after  such  action.  '  5 


Right  of  Section  91.     Any  person  having  any  duty  to  perform  under  this     1 

1913.  786,  §  90.  chapter  in  regard  to  any  building  or  premises  may,  if  it  be  necessary  for    2 

the  performance  of  such  duty,  enter  the  same.  3 


Liens. 

1913,  786,  §  91. 


Section  92.     Every  fine  imposed  by  judgment  under  section  eighty-  1 

nine  of  this  chapter  or  section  fifty-four  of  chapter  one  hundred  and  2 

forty-five  upon  a  tenement  house  owner  shall  be  a  lien  upon  the  house  3 

in  relation  to  which  the  fine  is  imposed  from  the  time  of  the  filing  of  a  4 

certified  copy  of  the  judgment  in  the  office  of  the  register  of  deeds  for  5 

the  county  or  district  where  the  tenement  house  is  situated,  subject  only  6 

to  taxes,  assessments  and  water  rates  and  other  existing  lawful  encum-  7 

brances,  and  the  board  of  health  and  the  building  inspector,  upon  the  8 

entry  of  said  judgment,  shall  forthwith  file  the  copy  as  aforesaid,  and  9 

the  copy,  upon  such  filing,  shall  forthwith  be  properly  indexed  by  the  10 

register  of  deeds.  1 1 


Notice  of              Section  93.     In  anv  action  or  proceeding  instituted  bv  the  officer  1 

pendency  of                                                                    i'       •   i        i              T                             f>     i  •        i            '          i           i    •  r» 

action  to  be       or  department  charged  with  the  enforcement  ot  this  chapter,  the  plain-  2 

1913, 786,  §  92.  tiff  Or  petitioner  may  file  in  the  office  of  the  register  of  deeds  for  the  3 

county  or  district  where  the  property  affected  by  such  action  or  proceed-  4 

ing  is  situated,  a  notice  of  the  pendency  of  the  action  or  proceeding.    The  5 

register  of  deeds  with  whom  the  notice  is  filed  shall  record  it,  and  shall  6 

index  it  under  the  name  of  each  person  against  whom  said  proceeding  is  7 

instituted.    Any  such  notice  may  be  vacated  by  the  order  of  a  justice  8 

of  the  court  in  which  the  action  or  proceeding  was  instituted  or  is  pend-  9 

ing.    The  register  of  deeds  of  the  county  or  district  where  the  notice  is  10 

filed  is  hereby  directed  to  mark  the  notice  and  any  record  or  docket  11 

thereof  as  cancelled  of  record,  upon  the  presentation  and  filing  of  a  cer-  12 

tified  copy  of  such  order.  13 

etc!" to  be*""'        SECTION  94.     Every  owner  of  a  tenement  house  and  every  lessee  of  1 

registered,         ^^le  wholc  housc,  Or  otlicr  per^ou  having  control  of  a  tenement  house,  2 

1913, 786, 1  93.  g}iall  file  with  the  board  of  health  a  notice  containing  his  name  and  3 

address,  and  also  a  description  of  the  property,  by  street  and  number  or  -4 


CiL\p.  145.] 


TENEMENT  HOUSES   IN  TOTVNS. 


1501 


5  othenvise,  as  the  case  may  be,  in  such  manner  as  will  enable  the  said 

6  board  easily  to  find  the  same;  and  also  the  number  of  rooms  in  each 

7  apartment,  and  the  number  of  families  occupying  the  apartments. 

8  When  the  owner  or  agent  is  not  a  resident  of  the  city  the  notice  shall 

9  contain  the  name  and  address  of  some  agent  residing  within  the  city 

10  for  the  purpose  of  receiving  ser\'ice  of  process,  and  notice  to  and  ser\'ice 

11  of  process  upon  such  agent  shall  bind  the  principal.     Blanks  for  the 

12  said  registration  shall  be  provided  by  the  board  of  health. 

1  Section  95.     Unless  otherwise  provided  in  this  chapter,  every  notice  service  of 

2  or  order  in  relation  to  a  tenement  house  shall  be  served  ten  days  before  Jgls^^rse,  §  94. 

3  the  time  for  doing  the  thing  in  relation  to  which  it  is  issued.    The  service 

4  of  a  notice  or  order  as  aforesaid  shall  be  made  by  the  delivery  of  an  at- 

5  tested  copy  in  hand  to  the  owner  or  his  agent,  or  by  leaving  an  attested 

6  copy  at  the  last  or  usual  place  of  abode  of  the  owner  or  agent,  or,  if  the 

7  owner  is  a  non-resident  and  has  no  agent  duly  appointed,  it  shall  be 

8  placed  in  a  conspicuous  place  in  said  tenement  house  and  a  copy  thereof 

9  mailed  by  a  registered  letter,  on  the  same  day  on  which  it  is  posted,  to 
10  the  owner  or  his  agent  at  his  residence. 


summons 

■86,  §  95. 


1  Section  96.     In  any  action  brought  by  any  city  official  in  relation  service  of 

2  to  a  tenement  house  for  injunction,  vacating  of  the  premises  or  other  1913™?] 

3  abatement  of  nuisance,  or  to  establish  a  lien  thereon,  service  of  process 

4  shall  be  in  the  manner  provided  in  the  preceding  section,  except  that 

5  the  service  of  process  shall  be  made  only  by  a  sheriff  or  one  of  his  depu- 

6  ties  or  by  a  constable. 


1  Section  97.    The   names   and   addresses   filed   in   accordance   with  certain  names 

2  section  ninety-four  shall  be  indexed  by  the  board  of  health  in  such  a  ?o  be  indexed^, 

3  manner  that  all  those  filed  in  relation  to  each  tenement  house  shall  be  jg^s,  750,  §  ge. 

4  together,  and  readily  ascertainable.    The  board  of  health  shall  provide 

5  the  necessary  books  and  clerical  assistance  for  that  purpose,  and  the 

6  expense  thereof  shall  be  paid  by  the  city.    Said  indexes  shall  be  public 

7  records,  open  to  public  inspection  during  business  hours. 

1  Section  98.     Upon  acceptance  of  this  chapter  by  any  city  all  ordi-  J^g^fs^^ygg  5  97 

2  nances  of  such  city  inconsistent  herewith  shall  be  annulled. 


CHAPTER     145. 

TENEMENT   HOUSES   IN   TOWNS. 


Sect. 

general  provisions. 

1.  Application. 

2.  Definitions. 

3.  Application  of  certain  sections. 

4.  Certain     provisions     as    to     tenement 

houses  in  cities  applicable. 

5.  Laws  not  to  be  modified. 

6.  Sewer  connection  and  water  supply. 

7.  Powers   of   the   department   of   public 

health. 


Sect. 

8.  Improvements    required    to    be    made 

within  one  year. 

9.  Buildings  converted  or  altered. 

NEW   BUILDINGS.       LIGHT  AND  VENTIL.1.TIO.V. 

10.  Percentage  of  lot  occupied. 
H.  Distance  from  side  lot  line. 

12.  Height. 

13.  Yards. 

14.  Courts. 


1502 


TENEMENT  HOUSES   IN  TO'WTSrS. 


[CiL\P.    145. 


Sect. 

15.  Air  intakes. 

16.  Angles  in  courts. 

17.  Buildings  on  same  lot  with  tenement 

houses. 

18.  Frontage  on  street. 

19.  Lighting  and  ventilation. 

20.  Windows. 

21.  Size  of  rooms. 

22.  Alcoves. 

23.  Chimneys,  etc. 

24.  Privacy. 

25.  Public  halls. 

26.  Size  of  windows  for  public  hall. 

27.  Size  of  windows  for  stair  hall. 


SANITATION. 

28.  Basements  or  cellars  not  to  be  used  for 

li\'ing  purposes. 

29.  Courts,  yards  and  areas  to  be  drained, 

etc. 

30.  Water  closets. 

31.  Plumbing. 

32.  Sewer  connection. 

33.  Cesspools. 

FIRE    PROTECTION. 

34.  Certain    tenement    houses    to   be    fire- 

proof. 

35.  Stairs. 

36.  Fire  walls. 

IMPKOVEMENTS   IN   OLD    BUILDINGS. 

37.  Lighting  and  ventilating  of  rooms. 

38.  Privy  vaults,  etc. 

39.  Basements  and  cellars. 

40.  Fire  escapes. 


Sect. 

alterations  of  old  buildings. 
41.  Alterations. 


MAINTENANCE  AND  USE. 

42.  Lighting  at  night. 

43.  Water  closets  not  permitted  in  cellars. 

44.  Basement  and  cellar  rooms  not  to  be 

occupied  for  living  purposes. 

45.  Cellar  walls,   etc.,   to   be  whitened   or 

painted. 

46.  Walls  of  courts  to  be  whitened. 

47.  Wall  paper. 

48.  Janitor. 


EEQCIREMENTS   AND    REMEDIES. 

49.  Inspection  of  buildings. 

50.  Permit  for  building  to  be  required,  etc. 

51.  Building    inspector    to    grant    permit 

before  building  can  be  occupied,  etc. 

52.  Procedure  and  penalties. 

53.  Building    constructed,    etc.,    in    viola- 

tion of  this  chapter  to  be  deemed  a 
common  nuisance,  etc. 

54.  Penalty  for  violation,  etc. 

55.  Jurisdiction  of  the  superior  court. 

56.  Right  of  entry  into  buildings  or  prem- 

ises. 

57.  Liens. 

58.  Notice   of   pendency   of   action    to   be 

filed,  etc. 

59.  Owner's  name  to  be  registered. 

60.  Serving  of  notices,  etc. 

61.  Service  of  summons. 

62.  Certain  names  and  addresses  to  be  in- 

dexed. 

63.  Repeal,  etc. 


GENERAL  PROVISIONS. 

1912.' 6^35?  §'94.       SECTION  1.     This  chapter  shall  apply  to  all  towns  which  accept  it  or  1 

ha\'e  accepted  corresponding  provisions  of  earlier  laws  by  vote  of  the  2 

town  at  a  town  meeting.  3 


Definitions. 
1912,  635,  §  2. 


Section  2.  The  following  Mords  used  in  this  chapter  shall  have  the  1 
following  meanings:  2 

"Acceptance  of  this  chapter"  shall  include  the  acceptance  of  corre-  3 
sponding  provisions  of  earlier  laws.  4 

"Basement",  a  story  partly  but  not  more  than  one  half  below  the  5 
level  of  the  adjacent  ground.  6 

"Cellar",  a  story  more  tlian  one  half  below  the  level  of  the  adjacent  7 
ground.  8 

"Corner  lot",  a  lot  situated  at  the  junction  of  two  streets,  each  not  9 
less  than  twenty  feet  in  width.  Any  part  of  the  width  of  such  lot  dis-  10 
tant  more  than  seventy  feet  from  such  junction  shall  not  be  regarded  as  11 
part  of  a  corner  lot,  but  shall  be  subject  to  the  provisions  of  this  chapter  12 
respecting  interior  lots.  13 

"Court",  an  open  unoccupied  space,  other  than  a  yard,  on  the  same  14 


Chap.  145.]  tenement  houses  in  towtss.  1503 

1.5  lot  with  the  tenement  house.     A  court  not  extending  to  the  street  or 

16  yard  is  an  "inner  court".    A  court  extending  to  the  street  or  yard  is  an 

17  "outer  court". 

18  "Existing",  existing  at  the  time  of  the  acceptance  of  this  chapter 

19  or  corresponding  provisions  of  earher  laws. 

20  "Fireproof  tenement  house",  one  constructed  of  fireproof  material 

21  throughout,  with  floors  built  of  iron,  steel  or  re-enforced  concrete  beams, 

22  filled  in  between  with  terra  cotta  or  other  masonry  arches  or  with  con- 
2.3  Crete  or  re-enforced  concrete  slabs;  wood  may  be  used  only  for  under 
2-4  and  upper  floors,  windows  and  door  frames,  sashes,  doors,  interior  finish, 

25  hand  rails  for  stairs,  necessary  sleepers  bedded  in  the  cement,  and  for 

26  isolated  furrings  bedded  in  mortar.    There  shall  be  no  air  space  between 

27  the  top  of  any  floor  arches  and  the  floor  boarding. 

28  "Front"  of  a  lot,  that  boundary  line  which  borders  on  the  street. 

29  In  the  case  of  a  corner  lot,  the  owner  may  elect  by  statement  on  his  plans 

30  either  street  boundary  line  as  the  front. 

31  "Half  story",  any  story  included  in  the  roof  of  which  the  floor  area 

32  of  the  rooms  is  not  more  than  seventy-five  per  cent  of  the  area  of  the 

33  ground  floor. 

34  "Height"  of  a  tenement  house,  the  perpendicular  distance  measured 

35  in  a  straight  line  from  the  curb  level,  or  from  the  finished  grade  line  of 

36  the  lot,  where  such  grade  is  higher  than  the  curb,  to  the  highest  point 

37  of  the  roof  beams  in  the  case  of  flat  roofs,  and  to  the  a^'erage  of  the  height 

38  of  the  gable  in  the  case  of  pitched  roofs,  tiie  measurements  in  all  cases  to 

39  be  taken  through  the  centre  of  the  fa(;'ade  of  the  house.    Where  a  building 

40  is  on  a  corner  lot  and  there  is  more  than  one  grade  or  level,  the  measure- 

41  ments  shall  be  taken  through  the  centre  of  the  facade  on  the  street  having 

42  the  lowest  elevation. 

43  "Interior  lot",  any  lot  other  than  a  corner  lot. 

44  "Lodging  house"  or  "  boarding  house",  any  house  or  building,  or  part 

45  thereof,  in  which  six  or  more  persons  are  harbored,  received  or  lodged  for 

46  hire,  or  any  building,  or  part  thereof,  which  is  used  as  a  sleeping  place 

47  or  lodging  for  six  or  more  persons  not  members  of  the  family  residing 

48  therein. 

49  "Nuisance"  includes  all  public  nuisances  as  known  at  common  law 

50  or  in  ecjuity  jurisprudence;    and  furthermore  whatever  is  dangerous  to 

51  human  life  or  detrimental  to  health,  whatever  building  or  erection,  or 

52  part  or  cellar  thereof,  is  overcrowded  with  occupants  or  is  not  provided 

53  with  adecjuate  ingress  and  egress  to  and  from  the  same,  or  the  apart- 

54  ments  thereof,   or  is  not  sufficiently  supported,   ventilated,   sewered, 

55  drained,  cleaned  or  lighted,  in  reference  to  their  or  its  intended  or  actual 

56  use,  and  whatever  renders  the  air  or  human  food  or  drink  unwholesome, 

57  are  also  severally  in  contemplation  of  this  chapter,  nuisances;    and  all 

58  such  nuisances  are  hereby  declared  unla^\•ful. 

59  "Occupied  spaces".     Outside  stairways,  fire  escapes,  porches,  plat- 

60  forms  and  other  projections  shall  be  considered  as  part  of  the  building 

61  and  not  as  part  of  the  yard  or  courts  or  unoccupied  area. 

62  "  Public  hall ",  a  hall,  corridor  or  passageway  not  within  an  apartment. 

63  "  Rear  "  of  a  lot,  the  side  opposite  to  the  front.    In  the  case  of  a  triangu- 

64  lar  or  gore  lot  the  rear  shall  be  the  side  not  bordering  on  the  street. 

65  "Stair  hall",  the  stairs,  stair  landings  and  those  parts  of  the  public 

66  halls  tlirough  which  it  is  necessary  to  pass  in  going  from  the  entrance 
()7  floor  to  the  roof. 


1504  TENEMENT   HOUSES   IN  TOWNS.  [ChaP.    145. 

"Street",  any  right  of  way  dedicated  to  public  use,  any  public  alley,  6S 

railroad  right  of  way,  cemetery  or  public  park,  twenty  feet  or  more  in  (39 

width.                         *  70 

"Tenement  house",  any  house  or  building,  or  part  thereof,  which  is  71 

rented,  leased,  let  or  hired  out  to  be  occupied,  or  is  occupied  or  is  in-  72 

tended,  arranged  or  designed  to  be  occupied  as  the  home  or  residence  of  73 

more  than  two  families  (a  family  may  consist  of  one  or  more  persons)  74 

living  independently  of  each  other  and  having  a  common  right  in  the  75 

halls,  stairways,  j'ard,  cellar,  sinks,  water  closets  or  privies,  or  any  of  76 

them,  and  includes  lodging  and  boarding  houses,  apartment  houses,  and  77 

flat  houses.     Dwelling  houses  built  in  continuous  rows  of  more  than  78 

two  houses  occupied  or  intended,  arranged  or  designed  to  be  occupied  79 

as  the  home  or  residence  of  one  family  or  more  having  a  common  right  80 

in  or  using  in  common  the  halls,  stairways,  yards,  cellars,  sinks,  water  81 

closets  or  privies,  or  any  of  them,  shall  be  deemed  to  be  tenement  houses  82 

and  shall  be  subject  to  all  the  provisions  of  this  chapter.  83 

"Thereafter",  after  the  acceptance  of  this  chapter  or  corresponding  84 

provisions  of  earlier  laws.  85 

"Wooden  building",  a  building  of  which  the  exterior  walls  or  a  part  86 

thereof  are  wood.  87 

"Yard",  an  open  unoccupied  space  in  the  same  lot  with  a  tenement  SS 

house  between  the  extreme  rear  line  of  the  house  and  the  extreme  rear  89 

line  of  the  lot.    An  open  unoccupied  space  between  the  front  line  of  the  90 

house  and  the  front  line  of  the  lot  is  a  "  front  yard  ".    A  "  side  yard  "  shall  91 

be  deemed  an  outer  court  on  the  lot  line.  92 

Words  used  in  the  present  tense  include  the  future;    words  in  the  93 

masculine  gender  include  the  feminine  and  neuter;    the  word  "shall"  94 

is  always  mandatory,  and  denotes  that  the  house  shall  be  maintained  in  95 

all  respects  according  to  the  mandate  as  long  as  it  continues  to  be  a  96 

tenement  house;  wherever  the  words  "by-laws",  "regulations",  "build-  97 

ing  inspector"  or  "board  of  health"  occur  in  this  chapter  they  shall  be  98 

construed  as  if  followed  by  the  words  "of  the  town  in  which  the  tene-  99 

ment  house  is  situated";  wherever  the  words  "is  occupied"  are  used  100 

in  tills  chapter  applying  to  any  building  they  shall  be  construed  as  if  101 

followed  by  the  words  "or  is  intended,  arranged  or  designed  to  be  102 

occupied".  103 

M?t'ain''s*ect'ion's       SECTION  3.     Uuless  Otherwise  specifically  provided  therein,  sections  1 

st'^if^is  17-  ^^^  ^^  thirty-six,  inclusive,  shall  apply  only  to  tenement  houses  erected  2 

28,  31, '33,'  31.  after  the  acceptance  of  this  chapter,  and  sections  thirtv-seven  to  fortv-  3 

37     39     40    45  .  '  ' 

49;  52!  51!     '  one,  inclusive,  only  to  tenement  houses  erected  prior  to  such  acceptance.  4 


Certain  provi-        SECTION  4.     The  provisions  of  sections  nine,  fourteen,  twenty-eight,  1 

menthouses      twcnty-ninc,  thirty-one,  thirty-four,  thirty-five,  forty-five,  forty-eight,  2 

L°ppikabie.        forty-nine,  fifty-one  to  fifty-three,  inclusive,  fifty-six,  fifty-eight,  sixty-  3 

i4,^"29^^3bfV2;  three,  sixty-five  to  sixty-eight,  inclusive,  except  the  provision  in  section  4 

«;  4«'-is,'  5?;  sixty-seven  as  to  the  freezing  or  bursting  of  pipes,  seventy,  seventy-two  5 

efi'  ei-r^'^'Ti-  ^^  seventy-six,  inclusive,  seventy-eight  and  eighty  to  eighty-tliree,  in-  6 

78!          '        elusive,  of  chapter  one  hundred  and  forty-four  shall  apply  to  tenement  7 

houses  in  towns,  but  unless  otherwise  specifically  provided  therein  the  8 

provisions  of  the  first  ten  of  said  sections  shall  apply  only  to  tenement  9 

houses  erected  after  acceptance  of  this  chapter  and  the  provisions  of  said  10 

sections  fifty-one,  fifty-two,  fifty-three,  fifty-eight  and  sixty-three  only  U 

to  tenement  houses  erected  prior  to  such  acceptance.  12 


Chap.  145.]  tenement  houses  in  towtvs.  1505 

1  Section  5.    The  provisions  of  this  chapter  shall  be  held  to  be  the  i""?  not  to  be 

2  minimum  requirements  adopted  ior  the  protection  oi  the  liealtn  and  1912,  ess,  §s. 

3  safety  of  the  community.    Nothing  in  this  chapter  shall  be  construed  as 

4  prohibiting  any  town  from  enacting  from  time  to  time  by-laws  imposing 

5  further  restrictions,  but  no  regulation  or  ruling  of  any  town  authority 

6  shall  repeal,  amend  or  dispense  with  any  provision  of  this  chapter. 

1  Section  6.     The  provisions  of  this  chapter  with  reference  to  sewer  Sewerconnec- 

2  connection  and  water  supply  shall  be  deemed  to  apply  only  where  con-  supply. 

3  nection  with  a  public  sewer  and  with  public  water  mains  is  or  becomes  }9}4;  790;  §  i' 

4  practicable.    The  questions  of  the  practicability  of  such  sewer  and  water  i9i9.35o,§96. 

5  connections  shall  be  decided  by  the  local  board  of  health,  or  by  the 

6  department  of  public  health  upon  request  of  the  local  board. 

1  Section  7.     The  department  of  public  health  may  examine  into  the  Powers  of  the 

2  enforcement  of  the  laws  relating  to  tenement  houses  in  any  town.    When-  puMicSth. 

3  ever  required  by  the  governor,  it  shall  make  such  an  examination  and  lUuiral!!!: 

4  shall  report  the  result  thereof  to  the  governor  within  the  time  prescribed  ^^^^-  '^^°'  ^  '"''■ 

5  by  him  therefor. 

1  Section  8.     In  tenement  houses  erected  prior  to  the  acceptance  of  J"p™J|To  b*e' 

2  this  chapter  by  a  town  all  improvements  specifically  required  thereby  "^''/y^^;.""'' 

3  shall  be  made  within  one  year  thereafter,  or  at  such  earlier  time  as  may  1912.  t>35.  §  8. 

4  be  fixed  by  the  board  of  health. 

1  Section  9.     A  building  not  a  tenement  house,  if  converted  or  altered  verted"or  ™''" 

2  to  such  use  after  the  acceptance  of  this  chapter,  shall  thereupon  become  jgfal'eas,  §  3. 

3  subject  to  all  the  provisions  thereof  affecting  tenement  houses  erected 

4  thereafter. 

NEW  buildings.      LIGHT  AND  VENTILATION. 

1  Section  10.     No  tenement  house  shall  occupy  either  alone  or  with  Percentage  of 

2  other  buildings  more  than  sixty-five  per  cent  of  a  corner  lot,  nor  more  1912,635,  §9. 

3  than  fifty  per  cent  of  any  other  lot;   the  measurements  shall  be  taken 

4  at  the  ground  level.    No  measurements  of  lot  area  shall  include  any  part 

5  of  any  street  or  alley. 

1  Section  11.     No    non-fireproof    tenement   house    shall    be    erected,  °<\e'fot''fmc°'" 

2  enlarged,  or  placed  with  the  side  walls  nearer  than  ten  feet  to  the  line  of  i^i^,  035.  §  10. 

3  any  adjoining  lot,  or  with  any  wall  nearer  than  twenty  feet  to  the  wall 

4  of  any  other  building.     No  lot  upon  which  stands  a  tenement  house 

5  erected  before  or  after  the  acceptance  of  this  chapter  shall  be  changed 

6  in  size  to  bring  the  side  walls  of  said  house  nearer  than  ten  feet  to  the 

7  lines  of  any  adjoining  lot  or  any  wall  of  said  house  nearer  than  twenty 

8  feet  to  the  wall  of  any  other  building. 

1  Section  12.    No  tenement  house  shall  exceed  in  height  the  width  of  fg^Sl'ess,  §11. 

2  the  widest  street  upon  which  it  stands,  unless  such  house  be  set  back 

3  from  the  street  a  distance  at  least  equal  to  the  excess  of  such  height  over 

4  the  width  of  such  street,  nor  shall  it  in  any  case  exceed  four  stories  in  * 

5  height. 


'S' 


1  Section  13.     Behind  every  tenement  house  there  shall  be  a  yard  79Y2,°r,35,  §  12. 

2  extending  across  the  entire  width  of  the  lot  and  at  every  point  open  from 


1506  TENEMENT   HOUSES   IN  TOWNS.  [ClL\P.    145. 

the  ground  to  the  sky  unobstructed.    Every  part  of  the  yard  shall  be  3 

directly  accessible  from  every  other  part  thereof.    The  depth  of  the  yard  4 

shall  be  measured  from  the  extreme  rear  of  the  house  to  the  rear  line  of  5 

the  lot.    If  the  tenement  house  is  tlu-ee  stories  or  less  in  height  the  depth  6 

of  the  yard,  in  the  case  of  interior  lots,  shall  be  at  least  twenty-five  feet,  7 

and  the  depth  of  the  yard  in  the  rear  of  corner  lots  shall  be  at  least  fifteen  8 

feet.    If  the  tenement  house  exceeds  three  stories  in  height,  the  depths  9 

above  prescribed  in  each  case  shall  be  increased  five  feet  for  each  story  10 

above  three.  11 

i9i2,'635,  §  13.      Section  14.     The  sizes  of  all  courts  shall  be  proportionate  to  the  1 

height  of  the  building.     No  court  shall  be  less  in  any  part  than  the  2 

minimum  sizes  prescribed  in  this  section.     The  minimum  width  of  a  .3 

court  for  a  two  story  building  shall  be  ten  feet,  and  the  width  shall  4 

increase  two  feet  for  each  additional  story.    The  length  of  an  inner  court  5 

shall  never  be  less  than  twice  the  minimum  width  prescribed  by  this  6 

section.    The  length  of  an  outer  court  shall  never  be  greater  than  twice  7 

its  minimum  width,  but  this  limitation  of  length  shall  not  apply  to  an  8 

outer  court  on  the  lot  line  extending  from  yard  or  street  to  yard.  9 

i9i2?635?§  15.      Section  15.     Every  inner  court  shall  be  provided  with  two  or  more  1 

horizontal  air  intakes  at  the  bottom.    One  such  intake  shall  always  com-  2 

municate  directly  with  the  street,  and  one  with  the  yard,  and  each  shall  3 

consist  of  a  fireproof  passageway  not  less  than  three  feet  wide  and  seven  4 

feet  high  which  shall  be  left  open,  or  be  provided  with  an  openwork  gate  5 

at  each  end,  and  the  gate  shall  not  be  covered  in  any  way  either  by  glass  6 

or  any  other  material.  7 

raufS'°             Section  16.     Nothing  in  the  foregoing   sections  concerning  courts  1 

1912,635,116.  gj^gjj  jjg  construed  as  preventing  windows  at  the  angles  of  said  courts;  2 

provided,  that  the  running  length  of  the  wall  containing  such  windows  3 

does  not  exceed  six  feet.  4 

8ameiStwi°h         Section17.     If  any  buildiiig  is  thereafter  placcd  on  the  samc  lot  with  1 

^ou'ses''"'          a  tenement  house,  whenever  erected,  or  a  tenement  house  erected  upon  2 

any  lot  upon  which  there  is  already  another  building,  it  shall  comply  3 

with  the  provisions  of  this  chapter  and  section  eighteen  of  chapter  one  4 

hundred  and  forty-four,  except  that  no  rear  building  shall  diminish  the  5 

minimum  size  of  courts  or  yards  as  hereinbefore  prescribed.  6 

str™'"^* "°          Section  18.     Every  tenement  house  shall  have  an  unobstructed  front-  1 

1912, 63a,  §  IS.  ^^^  upou  &  strcct  not  less  than  twenty  feet  wide.     No  tenement  house  2 

and  no  other  building  shall  thereafter  be  erected,  enlarged  or  placed  on  3 

the  same  lot  with  a  tenement  house  in  such  manner  that  any  tenement  4 

house  shall  be  left  without  an  unobstructed  frontage  upon  a  street  not  5 

less  than  twenty  feet  wide.  6 

vent'iaUon"''         SECTION  19.     Evcry  Toom,  including  water  closet  compartments  and  1 

1912, 635,  §  19.  bathrooms,  shall  have  at  least  one  window  opening  directly  upon  the  2 

street  or  upon  a  yard  or  court  of  the  dimensions  specified  in  sections  3 

thirteen  and  fourteen,  and  the  window  shall  be  so  located  as  properly  4 

to  light  all  parts  of  the  room.  5 


1912,  635,  §  17. 


Chap.  145.]  tenement  houses  in  towns.  1507 

1  Section  20.     The  total  window  area  in  each  room,  including  water  ^'°''°^? 

2  closet  compartments  and  batlirooms,  shall  be  at  least  one  seventh  of  the 

3  superficial  area  of  the  room,  and  the  top  of  at  least  one  window  shall 

4  be  not  more  than  eight  inches  below  the  ceiling,  and  the  upper  half  of 

5  it  shall  be  made  so  as  to  open  the  full  width.    At  least  one  such  window 

6  in  rooms  other  than  bathrooms  or  water  closets  shall  be  not  less  than 

7  twelve  square  feet  in  area  between  the  stop  beads;   and  in  water  closet 

8  compartments  and  bathrooms  at  least  one  such  window,  shall  be  not  less 

9  than  six  square  feet  in  area  between  the  stop  beads. 

1  Section  21.    There  shall  be  in  each  apartment  at  least  one  room  sizcof rooms 

2  containing  not  less  than  one  hundred  and  fifty  square  feet  of  floor  area. 

3  All  rooms  shall  be  in  every  part  not  less  than  nine  feet  from  the  finished 

4  floor  to  the  finished  ceiling,  except  that  an  attic  room  need  be  nine  feet 

5  high  in  but  one  half  of  its  area. 

1  Section  22.     An  alcove  in  any  room  shall  be  lighted  and  ventilated  ^912^035,  §  22 

2  separately,  as  provided  for  rooms  in  the  foregoing  sections,  and  shall 

3  not  be  less  than  one  hundred  square  feet  in  area.    No  part  of  any  room 

4  shall  be  enclosed  or  subdivided  at  any  time,  wholly  or  in  part,  by  a  cur- 

5  tain,  portiere,  fixed  or  movable  partition  or  other  contrivance  or  device, 

6  unless  the  part  of  the  room  so  enclosed  or  subdivided  shall  contain  a  sepa- 

7  rate  window  as  herein  required  and  shall  have  a  floor  area  of  not  less  than 

8  one  hundred  square  feet. 


23. 


1  Section  23.     There   shall   be  adequate   chimneys  running  through  chimneys,  etc 

2  every  floor  with  an  open  fireplace  or  grate  or  place  for  a  stove,  for  every 

3  apartment,  properly  connected  with  one  of  the  chimneys. 

1  Section  24.     In  each  apartment  access  to  every  living  room  and  bed-  ^9i2%^35,  §  24. 

2  room,  and  to  at  least  one  water  closet  compartment  shall  be  had  without 

3  passing  through  a  bedroom  or  bathroom. 

1  Section  25.     Every  public  hall  shall  have  at  each  story  at  least  fgi^^j'^s"!' 25. 

2  one  window  opening  directly  upon  the  street  or  upon  a  yard  or  court  of 

3  the  dimensions  specified  in  sections  thirteen  and  fourteen.    Such  window 

4  shall  be  at  the  end  of  said  hall  with  the  plane  of  the  window  at  right 

5  angles  to  the  hall's  axis.    Any  part  of  a  public  hall  which  is  in  any  way 

6  shut  ofl'  from  any  other  part  of  the  hall  shall  be  deemed  a  separate  hall 

7  within  the  meaning  of  this  section. 

1  Section  26.     One  at  least  of  the  windows  provided  to  light  each  size  of  win- 

2  public  hall  or  part  thereof  shall  be  at  least  two  feet  six  inches  wide  and  haii. 

3  five  feet  high,  measured  between  stop  beads,  and  the  top  of  the  window 

4  shall  be  not  more  than  eight  inches  below  the  ceiling.    There  shall  be 

5  in  the  roof,  directly  over  each  stair  well,  a  ridge  ventilator  having  a 

6  minimum  opening  of  forty  square  inches  and  with  movable  louvres. 

1  Section  27.     There  shall  be  provided  for  each  story  at  least  one  size  of  win- 

2  window  to  light  and  ventilate  each  stair  hall  which  shall  be  at  least  haii. 

3  two  feet  six  inches  wide  and  five  feet  higii  measured  between  the  stop  '^'"     ''•*-■ 

4  beads.     A  sash  door  shall  be  deemed  the  equivalent  of  the  window 


1508 


TENEMENT  HOUSES   IN  TOWNS. 


[Chap.  14.5. 


specified  in  this  section  and  the  two  foregoing  sections,  provided  that  o 

each  door  contains  tlie  amount  of  glazed  surface  prescribed  for  such  6 

windows.  7 

SANITATION. 

feifarsno'A"be      SECTION  28.     No  room  in  the  basement  or  cellar  shall  be  constructed,  1 

purposes''""^    altered,  converted  or  occupied  for  living  purposes.  1912,  ess.  §  2s.  2 

and  areaYto^e      Section  29.     All  courts,  arcas  and  yards  shall  be  properly  graded  1 

i9r"'^635^'§'3i  ^'1*^  drained;    and  when  necessary  in  order  to  keep  such  premises  in  a  2 

sanitary  condition  such  courts,  areas  or  yards,  or  such  part  thereof  as  3 

the  board  of  health  shall  order,  shall  be  properly  concreted.  4 


Water  closets. 
1912.  635.  §  33. 


Section  30.  In  every  tenement  house  there  shall  be  within  each 
apartment  a  separate  water  closet,  located  in  a  bathroom  or  in  a  sepa- 
rate compartment.  Each  such  water  closet  shall  be  completely  sepa- 
rated from  every  other  water  closet.  Said  compartment  shall  be  not 
less  than  three  feet  wide,  and  shall  be  enclosed  with  plastered  partitions 
which  shall  extend  to  the  ceiling.  Every  such  compartment  shall  have 
a  window  opening  directly  upon  the  street  or  upon  a  yard  or  court  of 
the  minimum  size  prescribed  by  this  chapter.  Every  water  closet  com-  8 
partment  thereafter  placed  in  any  tenement  house  whenever  erected  9 
shall  be  provided  with  proper  means  of  lighting  the  same  at  night,  and  10 
floors  beneath  the  water  closet  shall  be  waterproofed  as  provided  in  sec-  11 
tion  tliirty-two  of  chapter  one  hundred  and  forty-four.  No  drip  trays  12 
shall  be  permitted.  No  water  closet  fixtures  shall  be  enclosed  with  any  13 
woodwork.    No  water  closet  shall  be  placed  in  the  cellar.  14 


Plumbing. 
1912.  635.  §  34. 


Section  31.     No  plumbing  fixtures  shall  be  enclosed  with  woodwork.  1 

All  plumbing  pipes  shall  be  exposed  except  as  otherwise  permitted  by  2 

the  board  of  health.     Wherever  plumbing  or  other  pipes  pass  through  3 

floors  or  partitions  the  openings  around  such  pipes  shall  be  sealed  or  4 

made  air  tight  with  plaster  or  other  incombustible  materials,  so  as  to  5 

prevent  the  passage  of  air  or  the  spread  of  fire  from  one  floor  to  another  6 

or  from  room  to  room.     All  plumbing  work  shall  be  sanitary  in  every  7 

particular  and,  except  as  otherwise  specified  in  this  chapter,  shall  be  8 

in  accordance  with  the  local  plumbing  regulations.    Pan  and  long  hopper  9 

closets  shall  not  be  used.  10 


Sewer  con-            SECTION  32.     Evcry  tenement  house  on  a  street  in  which  there  is  a  1 

1912,6.35.  §37.  public  sewer,  or  in  which  a  public  sewer  shall  hereafter  be  placed,  shall  2 

be  connected  therewith.  3 

cesspools.            Section  33.     No  cesspool  shall  be  permitted  in  the  cellar  or  court  1 

of  any  tenement  house,  nor  within  fifteen  feet  of  any  wall  of  said  tene-  2 

ment  house,  or  of  any  dwelling  house.  3 


FIRE    PROTECTION. 


Certain  tene- 
ment houses  to 


Section  34.     No  tenement  house  shall  be  erected  exceeding  two  and  1 

igi'"e3r§39  ""^  '^'"^'^  stories  in  height,  nor  shall  it  be  occupied,  nor  intended,  ar-  2 

ranged  or  designed  to  be  occupied,  by  more  than  two  families,  unless  3 

it  be  a  fireproof  tenement  house.  4 


Chap.  145.]  tenement  houses  in  towns.  1509 

1  Section  35.     There  shall  be  at  least  two  independent  flights  of  stairs  stairs. 

2  with  separate  entrances  leading  from  the  entrance  floor  to  the  top  story,        '     ' 

3  said  flights  of  stairs  being  at  two  points  as  far  apart  as  is  po.ssible  in 

4  the  opinion  of  the  building  inspector.     Said  stairs  shall  be  directly  ac- 

5  cessible  from  each  apartment,  without  passing  through  any  other  apart- 

6  ment.     One  of  said  flights  of  stairs  may  consist  of  outside,  open  stairs 

7  and  balconies.    All  stairs  and  balconies  and  all  public  halls  shall  be  at 

8  least  three  feet  wide  in  the  clear.    All  stairs  shall  be  constructed  with  a 

9  rise  of  not  more  than  seven  and  one  half  inches  and  with  treads  not 

10  less  than  ten  and  one  half  inches  wide,  and  not  less  than  three  feet  long 

11  in  the  clear.    Winders  shall  not  be  permitted  in  any  staircase. 

1  Section  36.     The  provisions  of  section  forty-seven  of  chapter  one  Firewalls. 

2  hundred  and  forty-four  shall  apply  to  tenement  houses  in  towns  except        ' 

3  that  the  fire  walls  therein  specified  need  extend  only  to  the  underside  of 

4  the  sheathing  of  the  roof. 

IMPROVEMENTS   IN   OLD   BUILDINGS. 

1  Section  37.     The  provisions  of  section  fifty  of  chapter  one  hundred  v™tik"!ng''of 

2  and  forty-four  except  as  to  area  of  the  window  provided  therein  shall  ^^^'J^^ggg  ,  ^- 

3  apply  to  tenement  houses  in  towns. 

1  Section  38.    Where  a  connection  with  a  sewer  is  possible,  all  school  ^^^"'^  vaults, 

2  sinks,  privy  vaults  or  other  similar  receptacles  used  to  receive  fecal  i^^^,  635,  §  49. 

3  matter,  urine  or  sewage,  shall  within  one  year  thereafter  be  completely 

4  removed,  and  the  place  where  they  were  located  properly  disinfected 

5  under  the  direction  of  the  board  of  health.     Such  appliances  shall  be 

6  replaced  by  individual  water  closets  of  durable  non-absorbent  material, 

7  properly  sewer  connected,  with  individual  traps  and  properly  connected 

8  flush  tanks  providing  an  ample  flush  of  water  thoroughly  to  cleanse  the 

9  bowl.    Each  water  closet  shall  be  located  inside  the  tenement  house  in  a 

10  compartment  completely  separated  from  every  other  water  closet,  and 

1 1  such  compartment  shall  contain  a  window  of  not  less  than  three  square 

12  feet  in  area  opening  directly  upon  the  street  or  yard,  or  on  a  court  of  the 

13  minimum  size  prescribed  in  section  fourteen.    The  floors  of  the  water 

14  closet  compartments  shall  be  waterproof  as  provided  in  section  thirty. 

15  There  shall  be  provided  at  least  one  water  closet  for  every  two  families 

16  in  every  existing  tenement  house.    Such  water  closets  and  all  plumbing 

17  in  connection  therewith  shall  be  sanitary  in  every  respect,  and  except  as 

18  otherwise  provided  in  this  section  shall  be  in  accordance  with  the  laws, 

19  town  by-laws  and  regulations  in  relation  to  plumbing  and  drainage.    Pan 

20  and  long  hopper  closets  shall  not  be  used. 

1  Section  39.    The  floor  of  the  cellar  or  lowest  floor  shall  be  free  from  Basements 

2  dampness,  and,  when  necessary,  shall  be  concreted  with  four  inches  of  i9i2?635?'§  50. 

3  concrete  of  good  quality  and  with  a  finished  surface.    The  cellar  ceiling  of 

4  every  tenement  house  shall  be  plastered,  when  so  required  by  the  build- 

5  ing  inspector,  except  where  the  ceiling  is  already  well  sheathed  with 

6  matched  boards  or  well  covered  with  a  metal  ceiling,  or  where  the  first 

7  floor  above  the  cellar  is  constructed  of  iron  beams  and  fireproof  filling. 

1  Section  40.     All  non-fireproof  tenement  houses,  which  are  three  or  Fire  escapes. 

2  more   stories   in   height,  and   do   not   have   fireproof  stairs   and   stair  '®^^'  ^^^'    ^" 


1510  TENEMENT   HOUSES   IN  TOWNS.  [ChaP.    145. 

halls  or  adequate  fire  escapes,  as  required  by  this  chapter,  shall  be  pro-  .3 

vided  either  with  fireproof  outside  stairways  or  with  fireproof  fire  escapes  4 

directly  accessible  from  each  apartment  without  passing  through  a  public  5 

hall.  6 

No  existing  fire  escape  shall  be  deemed  adequate  unless  the  following  7 

conditions  are  complied  with:  8 

(1)  In  every  tenement  house  each  apartment  above  the  ground  floor  9 
shall  have  a  fire  escape  balcony  directly  accessible  from  it.  10 

(2)  All  balconies  shall  be  properly  connected  with  each  other  by  ade-  11 
quate  stairs  or  stationary  ladders  with  openings  not  less  than  twenty-  12 
four  by  thirty-six  inches.  13 

(3)  All  fire  escapes  shall  have  proper  ladders  from  the  lowest  balcony  14 
of  sufficient  length  to  reach  a  safe  landing  place  beneath.  15 

(4)  All  fire  escapes  not  on  the  street  shall  have  a  safe  and  ade-  16 
quate  means  of  egress  from  the  yard  or  court  to  the  street  or  to  adjoining  17 
premises.  18 

(5)  Prompt  and  ready  access  shall  be  had  to  all  fire  escapes,  which  19 
shall  not  be  obstructed  in  any  way.  20 

No  existing  fire  escape  shall  be  extended  or  have  its  location  changed  21 
except  with  the  WTitten  approval  of  the  inspector  of  buildings.  22 

All  fire  escapes  thereafter  placed  on  tenement  houses  shall  be  located  23 
and  constructed  as  follows:  All  such  fire  escapes  shall  open  directly  24 
from  at  least  one  room  or  private  hall  in  each  apartment  at  each  story  25 
above  the  ground  floor,  other  than  a  bathroom  or  water  closet  compart-  26 
ment,  and  such  room  or  private  hall  shall  be  accessible  to  every  room  27 
thereof  without  passing  through  a  public  hall.  Access  to  fire  escapes  28 
shall  not  be  obstructed  in  any  way.  Fire  escapes  shall  not  be  placed  in  29 
any  court.  Fire  escapes  may  project  into  a  public  street,  but  not  more  30 
than  four  feet  beyond  the  building  line.  All  fire  escapes  shall  consist  of  31 
outside  fireproof  balconies  and  stairways.  All  balconies  shall  be  not  less  32 
than  three  feet  in  width,  and  shall  include  at  least  one  window  or  outside  33 
door  of  each  apartment  at  each  story  above  the  ground  floor.  34 

All  fire  escape  stairways  shall  be  placed  at  an  angle  of  not  more  than  35 
forty-five  degrees,  with  flat  open  steps,  not  less  than  nine  inches  in  width  36 
and  twenty-four  inches  in  length,  and  with  a  rise  of  not  more  than  nine  37 
inches.  The  openings  for  stairways  in  all  balconies  shall  be  not  less  than  38 
twenty-four  by  thirty-six  inches,  and  shall  have  no  covers  of  any  kind.  39 
When  tenement  houses  upon  which  fire  escapes  are  placed  have  flat  40 
roofs  the  balcony  on  the  top  floor,  except  in  the  case  of  a  balcony  on  41 
the  street,  shall  be  provided  with  stairs  or  with  a  gooseneck  ladder  42 
leading  from  the  balcony  to  and  above  the  roof  and  properly  fastened  43 
thereto.  A  drop  ladder  or  stairs  shall  be  provided  from  the  lowest  bal-  44 
cony  of  sufficient  length  to  reach  to  a  safe  landing  place  beneath.  All  45 
fire  escapes  shall  be  constructed  and  erected  to  sustain  safely  in  all  their  46 
parts  any  reasonable  load.  In  addition  to  the  foregoing  requirements,  47 
all  fire  escapes  thereafter  erected  upon  tenement  houses  shall  be  con-  48 
structed  in  accordance  with  such  supplementary  regulations  as  may  be  49 
adopted  by  the  building  department.  50 

alterjVtions  of  old  buildings. 

i9i2?fi3°5T§  54.      Section  41.     No  tenement  house  shah  at  any  time  be  altered  so  as     1 

1913, 614, 1 1.    ^^  j^g  jj.|  violation  of  the  requirements  of  section  four,  which  relate  to     2 

new  buildings,  and  sections  ten  to  thirty-six,  inclusive,  but  the  provisions     3 


Ca.\P.    145.]  TENEMENT  HOUSES   IN  TOW'NS.  1511 

4  of  subdivisions  one  to  three,  inclusive,  of  section  fifty-nine  of  chapter  one 

5  hundred  and  forty-four  shall  apply  to  tenement  houses  in  towns.    Said 

6  subdivision  three  shall  apply  to  wooden  tenement  houses  of  more  than 

7  two  apartments. 

MAINTENANCE  AND   USE. 

1  Section  42.     The  provisions  of  sections  sixty  and  sixty-one  of  chapter  Lighting  at 

2  one  hundred  and  forty-four  shall  apply  to  the  lighting  of  public  halls  and  itfi2. 635, 

3  stairs  in  tenement  houses  except  three-apartment  houses,  so  called,  which  i9i3^'44i,  §  i. 

4  are  provided  with  push  buttons  with  a  three-point  switch  for  turning 

5  on  or  off  the  electric  lights  in  the  halls  of  the  said  apartments  when  it  is 

6  necessary  to  use  the  stairway  therein. 

1  Section  43.     No  water  closet  shall  be  permitted  in  the  cellar  of  any  watcr  oiraets 

^    J  .    1  ...  not  permitted 

2  tenement  house.  1012, 6.3^.  §  .t.  in  cellars. 

1  Section  44.     The  provisions  of  section  sixty-four  of  chapter  one  hun-  Basement  and 

2  dred  and  forty-four  shall  apply  to  tenement  houses  in  towns  except  in  to"beo??upiS" 

3  so  far  as  they  refer  to  section  twenty-seven  of  chapter  one  hundred  and  posea""'"^  ■""" 

4  forty-four,  and  provide  for  height  of  ceiling  above  specified  exterior  levels,  i^^^'  •'^^'  ^  ^^■ 

1  Section  45.     The  cellar  walls  and  ceilings  of  every  tenement  house  Ceiiarwaiis, 

2  shall  be  thoroughly  whitened  or  painted  a  light  color  by  the  owner,  and  whitened'or 

3  shall  be  so  maintained.    The  whitening  or  paint  shall  be  renewed  when-  i9i2''^635,  §  eo. 

4  ever  necessary,  as  may  be  required  by  the  board  of  health. 

1  Section  46.     The  Malls  of  all  courts,  imless  built  of  a  light  colored  w^iis  °'.''™'''' 

2  brick  or  stone,  shall  be  thoroughly  whitened  by  the  owner,  or  shall  be  1312,  ess,  §  es'. 

3  painted  a  light  color  by  him,  and  shall  be  so  maintained.    The  whiten- 

4  ing  or  paint  shall  be  renewed  whenever  necessary,  as  may  be  required  by 

5  the  board  of  health. 

1  Section  47.     No  wall  paper  shall  be  placed  upon  a  wall  or  ceiling  of  w^"  paper-  ^, 

n  1  I  II  11  1      11    I         f'  11  1912,  635,  §  67. 

2  any  tenement  house  unless  all  wall  paper  shall  be  nrst  removed  there- 

3  from  and  the  wall  and  ceiling  thoroughly  cleaned. 

1  Section  48.     In  any  tenement  house  in  which  the  owner  thereof  jgjg  "gi-     73 

2  does  not  reside,  there  shall  be  a  janitor,  housekeeper  or  other  responsible 

3  person  who  shall  reside  in  said  house  and  have  charge  of  the  same,  if  the 

4  board  of  health  shall  so  require. 

REQUrREMENTS  AND   REMEDIES. 

1  Section  49.     In  a  town  which  accepts  this  chapter  or  has  accepted  Ju^fdln 's"  "' 

2  corresponding  provisions  of  earlier  laws  the  selectmen  shall  annually  1912. 635,  §  79. 

3  appoint  an  inspector  of  buildings. 

1  Section  50.     The  provisions  of  section  eighty-five  of  chapter  one  Permit  for 

2  hundred  and  forty-four  shall  apply  to  tenement  houses  in  towns,  except  requlred.'etc.^ 

3  that  the  specifications,  plans  and  statements  required  therein  shall  be  ^■'^-'  ''•'''•  ^  *"• 

4  filed  in  the  office  of  the  town  clerk.     But  information  submitted  to  the 

5  building  inspector  under  said  section  shall  also  be  submitted  to  the  board 

6  of  health  upon  blanks  or  forms  furnished  by  it;    and  it  shall  cause  all 

7  plans  and  specifications  so  submitted  to  be  examined. 


1512  TENEIIENT  HOUSES   IN  TOWNS.  [ClL\P.    145. 

kispectorto           SECTION  51.     No  building  thereafter  constructed  as  or  altered  into  a  1 

befcre'bmTcimg  tenement  house  shall  be  occupied  in  whole  or  in  part  for  human  habita-  2 

■^a^jbeoccu-       tion  luitil  tlie  issuance  of  a  certificate  by  the  building  inspector  that  the  3 

1912, 633,  §81.  building  conforms  in  all  respects  to  the  requirements  of  law,  and  the  4 

building  inspector  shall  not  issue  said  certificate  until  the  board  of  health  5 

certifies  to  him  that  the  building  conforms  to  all  reciuirements  of  law  rela-  6 

tive  to  the  light,  ventilation  and  sanitation  of  tenement  houses.    Upon  7 

notice  of  the  completion  of  the  contruction,  alteration  or  conversion  of  a  8 

tenement  house,  the  building  inspector  and  the  board  of  health  shall  in-  9 

spect  the  building  forthwith,  and  the  building  inspector  shall  issue  a  cer-  10 

tificate  of  compliance  within  five  days  after  written  application  therefor,  11 

if  the  building  at  the  date  of  such  application  is  found  to  conform  to  the  12 

requirements  of  this  chapter.  1,3 

penaWe^  """^        SECTION  52.     Any  court  having  jurisdiction  in  equity,  or  any  justice  1 

1912, 6.35. 5  S2.  thereof  may  upon  the  application  of  any  town  by  its  attorney  restrain  the  2 

construction,  alteration,  repair,  maintenance,  use   or   occupation   of  a  3 

building  or  structure  in  violation  of  tliis  chapter  and  order  its  removal  4 

or  abatement  as  a  nuisance,  and  compel  compliance  with  any  provision  5 

of  this  chapter.  6 

ftruSetc'         Section  53.     A  building  or  structure  which  is  erected,  altered,  main-  1 

in  violation  of    taiucd  OF  uscd  in  violation  of  this  chapter  shall  be  deemed  a  common  2 

this  chapter  to  .  .   ,  ,  c      i  c      i 

be  deemed  a      nuisaucc  without  othcF  prooi  thereof  than  proof  of  such  unlawful  con-  3 

.sance.  etc.         struction,  maintenance  or  use  and  the  building  inspector  may,  and  if  4 

said  violation  is  of  any  section  of  this  chapter  relative  to  light,  ventila-  5 

tion  or  sanitation  of  said  building  shall,  if  required  in  writing  by  the  board  6 

of  health,  order  the  owner  of  said  premises  at  his  own  expense  to  abate  7 

or  remove  said  nuisances  within  twenty-four  hours,  or  within  such  further  8 

time  as  said  board  considers  reasonable  after  notice  to  be  se^^■ed  in  the  9 

manner  provided  in  section  sixty,  and  if  the  owner  or  occupant  fails  to  10 

comply  with  such  order,  the  board  may  abate  or  remove  the  nuisance  11 

and  all  expenses  incurred  thereby  shall  be  paid  by  the  person  who  caused  12 

or  permitted  the  same.  13 

Penalty  for           SECTION  54.     Wiocvcr  violatcs  any  provision  of  this  chapter  shall  1 

^^olatlO^,  etc.  .111  n  f  1  1  111  t 

1912, 635,  §  84.  bc  puuishcd  by  a  fine  of  not  less  than  ten  dollars.     Any  person  who  2 

violates  any  provision  of  this  chapter,  having  been  served  with  a  notice  3 

or  order  as  provided  by  section  sixty,  or  who  fails  to  comply  with  such  4 

^notice  or  order  within  ten  days  after  such  service,  or  continues  to  violate  5 

any  provision  or  recjuirement  of  this  chapter  in  the  respect  named  in  6 

said  notice  or  order,  shall  in  addition  be  punished  by  a  fine  of  not  7 

less  than  five  nor  more  than  twenty  dollars  for  each  day  after  the  first  8 

during  ■which  the  violation  continues.  9 

fh^perio""^        Section  55.    Any   person,   the   value   of   whose   property   may   be  1 

m?  635  « 85  effected  by  any  action  of  the  board  of  health  or  the  building  inspector,  2 

may  have  the  action  of  said  board  of  health  or  said  building  inspector  3 

reviewed  by  the  superior  court  by  any  appropriate  process,  provided  pro-  4 

ceedings  are  instituted  within  ten  days  after  such  action.  5 

Sto'bufidingr      Section  56.     Any  person  having  any  duty  to  perform  in  regard  to  1 

igf "(jar^j  86  ^^y  building  or  premises  under  this  chapter  may,  if  necessary  for  the  2 

performance  of  such  duties,  enter  the  same.                          .  3 


Chap.  145.]  tenement  hou.ses  in  towns.  1513 

1  Section  57.     The  provisions  of  section  ninety-two  of  chapter  one  i.iens. 

2  hundred  and  forty-four  shall  apply  to  fines  imposed  by  judgment  under  ^  '"'    °'       ' 

3  section  fifty-four  of  this  chapter. 

1  Section  58.     In  any  action  or  proceeding  instituted  by  the  depart-  Notice  of  pend- 

2  ments  charged  with  the  enforcement  of  this  chapter,  the  procedure  pro-  to'i^e  fiietf,  etc. 

3  vided  by  section  ninety-three  of  chapter  one  hundred  and  forty-four  shall  ^'■"^'  ^^^'  ^  **' 

4  apply. 

1  Section  59.     The  owner  of  a  tenement  house  and  every  lessee  of  the  Owner's  name 

2  whole  house  or  of  two  or  more  tenements  therein,  or  the  agent  of  the  tered. 

3  owner  or  other  person  having  control  of  a  tenement  house,  shall  annually  '^'''  ''^°'  ^  ^'' 

4  during  the  month  of  April  file  in  the  office  of  the  town  clerk  a  notice  con- 

5  taining  his  name  and  address,  and  also  a  description  of  the  property, 

6  by  street  number  or  otherwise,  as  the  case  may  be,  in  such  manner  as 

7  will  enable  the  board  of  health  and  building  inspector  easily  to  find  the 

8  same;   and  also  the  number  of  apartments  in  each  house,  the  number  of 

9  rooms  in  each  apartment,  and  the  number  of  families  occupying  the 

10  apartments.     The  notice  shall  contain  the  name  and  address  of  some 

11  agent  for  the  house,  for  the  piu-pose  of  receiving  service  of  process,  and 

12  notice  to  and  service  of  process  upon  such  agent  shall  bind  the  principal. 

1  Section  60.     Unless  otherwise  provided  in  this  chapter,  every  notice  serving  of 

2  or  order  in  relation  to  a  tenement  house  shall  be  served  ten  days  before  iSi'l.^'ss.'^j  90. 

3  the  time  for  doing  the  thing  in  relation  to  which  it  is  issued.    The  service 

4  of  notices  or  orders  as  aforesaid  shall  be  made  by  the  delivery  of  an 

5  attested  copy  in  hand  to  the  owner  or  his  agent,  duly  registered  as  pro- 

6  vided  in  section  fifty-nine,  or  by  leaving  an  attested  copy  at  the  last  or 

7  usual  place  of  abode  of  the  owner  or  agent,  or,  if  the  owner  is  a  non-resi- 

8  dent  and  has  no  agent  duly  appointed,  as  provided  in  said  section  fifty- 

9  nine,  it  shall  be  posted  in  a  conspicuous  place  in  said  tenement  house  and 

10  a  copy  thereof  mailed  by  a  registered  letter  on  the  same  day  on  which  it 

11  is  posted,  to  the  owner  or  his  agent  at  the  residence  designated  in  the 

12  notice  provided  by  said  section. 

1  Section  61.     In  any  action  brought  by  any  town  official  in  relation  service  of 

2  to  a  tenement  house  for  injunction,  vacating  of  the  premises  or  other  igilj^eS!,  §  oi. 

3  abatement  of  nuisance,  or  to  establish  a  lien  thereon,  service  of  process 

4  shall  be  in  the  manner  provided  in  the  preceding  section,  except  that  the 

5  service  of  process  shall  be  made  only  by  a  sheriff  or  one  of  his  deputies 

6  or  by  a  constable. 

1  Section  G2.     The   names   and    addresses   filed   in   accordance   with  certain  names 

2  section  fifty-nine  shall  be  indexed  by  the  town  clerk  in  such  a  manner  tob^indexecf. 

3  that  all  of  those  filed  in  relation  to  each  tenement  house  shall  be  together  '^'''  '^^^'  ^  ®^' 

4  and  readily  ascertainable.    The  town  clerk  shall  provide  the  necessary 

5  books  and  clerical  assistance  for  that  purpose,  and  the  expense  thereof 

6  shall  be  paid  by  the  town.    Said  indexes  shall  be  public  records,  open  to 

7  public  inspection  during  business  hours. 

1  Section  63.     Upon  acceptance  of  this  chapter  by  any  town  all  by-  Repeal,  etc. 

2  laws  and  regulations  of  such  town  inconsistent  therewith  shall  be  annulled.        '    ''' 


1514 


INSPECTION    OF   BOILERS,    ETC. 


[Chap.  146. 


CHAPTER     146. 

INSPECTION    OF    BOILERS,   AIR   TANKS,    ETC.     LICENSES    OF    ENGI- 
NEERS, FIREiMEN,  AND  OPERATORS  OF  HOISTING  MACHINERY. 


Sect. 

1.  DefiBitions. 

DUTIES    OF    BOARD    OF    BOILER    RULES. 

2.  Rules  for  boilers. 

3.  Hearings. 

4.  Changes  in  rules. 


10. 
11. 
12. 
13. 

14. 

15. 

16. 
17. 

18. 
19. 

20. 
21. 
22. 
23. 

24. 

25. 

.26. 
27. 
28. 
29. 
30. 
31. 
32. 
33. 


INSPECTION    OF    BOILERS. 

Duties  of  inspectors  of  the  division. 

Annual  inspection. 

Certain  boilers  excepted. 

Boilers  not  to  be  operated  without  in- 
spection. 

Boiler  not  to  be  operated  in  excess  of 
prescribed  pressure. 

Report  of  uninsured  boiler. 

Duties  of  inspector. 

Tampering  with  safety  appliance. 

Inspection  by  insurance  companies  or 
inspectors  of  the  division. 

Insurance  companies  must  have 
licensed  inspectors. 

Acting  as  inspector  without  a  license 
prohibited. 

Same  subject  as  to  company. 

Reports  of  inspectors  of  the  division. 

Reports  by  insurance  companies. 

Insurance  companies  must  report  can- 
celled risks. 

Safety  appliances. 

Preparation  of  boiler  for  inspection. 

Fees  for  inspection  by  the  division. 

Certificate  of  inspection  by  the  division. 

Inspected  boiler  to  be  stamped  or 
tagged. 

Certificate  of  inspection  by  insurance 
company. 

First  inspection. 

Contents  of  certificate. 

Safety  plug. 

Notice  of  defect  in  boiler. 

Uninsured  boiler  not  to  be  operated. 

Hydrostatic  pressure  test. 

Hindering  inspector  forbidden. 

Penalty. 


COMPRESSED    AIR    TANKS. 

34.  Air  tanks. 

35.  Rules  for  tanks. 

36.  Inspection. 

37.  Notice. 

38.  Reports  of  inspection. 

39.  Tests  for  inspection. 


Sect. 

40.  Fees. 

41.  Penalty. 

AMMONIA    COMPRESSORS. 

42.  Ammonia  compressors. 

43.  Rules. 

44.  Rules  to  have  force  of  law. 

45.  Changes  in  rules. 

LICENSES  OF  ENGINEERS  AND  FIREMEN. 

46.  Licenses   for   operating   boilers   or  en- 

gines. 

47.  Violation  of  preceding  section. 

48.  Determination  of  power. 

49.  Classes  of  licenses. 

50.  Qualifications  of  licensees. 

51.  Posting  of  license.     Daily  record. 

52.  Licenses  in  force  on  May  17,  1915. 

LICENSES      FOR      OPERATING      HOISTING     MA- 
CHINERY   NOT  RUN   BY    STEAM. 

53.  Hoisting  machinery. 

54.  License  to  be  carried  on  the  person. 

55.  Penalty. 

EXAMINATIONS        OP      APPLICANTS      FOR       LI- 
CENSES,   ETC. 

56.  Inspectors  of  the  division  to  act  as  ex- 

aminers. 

57.  Applications  for  licenses. 

58.  .Applicants  may  have  a  person  present. 

59.  Revocation  of  licenses. 

EXAMINATION    OF    INSPECTORS    OF     BOILERS. 

60.  Application  for  license. 

61.  Board  of  examiners. 

62.  Certificate  of  competency. 

63.  Appeal. 

EXAMINATION    OF    ENGINEERS,    FIREMEN    OR 
OPERATORS    OF    HOISTING    MACHINERY. 

64.  Application  for  license  as  engineer  or 

fireman.     Examination. 

65.  Application  for  license  to  operate  hoist- 

ing machinery. 

66.  Appeal. 

67.  License  in  force  until  revoked  or  sus- 

pended. 

GENERAL    PROVISIONS. 

68.  Trial  justices. 

69.  Appropriation  for  apparatus. 


Definitions. 


Section  1.  The  following  words  as  used  in  this  chapter,  unless  a  con-  1 
trary  meaning  is  specifically  prescribed  or  the  context  otherwise  requires,  2 
shall  have  the  following  meanings:  3 


Chap.  146.]  inspection  of  boilers.  1515 

4  "Board",  the  board  of  boiler  rules  appointed  under  section  ten  of 

5  chapter  twenty-two. 

6  "Chief",  the  chief  of  inspections  of  the  department  of  public  safety. 

7  "Commissioner",  the  commissioner  of  public  safety. 

8  "Department",  the  department  of  public  safety. 

9  "Division",  the  division  of  inspection  of  the  department  of  public 

10  safety. 

11  "Inspector",  a  boiler  inspector  of  the  division  of  inspection  of  the 

12  department  of  public  safety,  or  an  inspector  of  an  insurance  company 

13  authorized  to  insure  steam  boilers  in  the  commonwealth. 

DUTIES    OF   BO.\RD    OF   BOILER   RULES. 

1  Section  2.     The  board  shall  formulate  rules  for  the  construction.  Rules  for 

2  installation  and  inspection  of  steam  boilers,  and  for  ascertaining  the  safe  i907.'^4C5, 

3  workingpressure  to  be  carried  therein;  prescribe  tests,  if  it  deems  it  neces-  fgdi^ls,  §  2. 

4  sary,  to  ascertain  the  qualities  of  materials  used  in  the  construction  of  f^ii^^"' 

5  boilers;    formulate  rules  regulating  the  construction  and  sizes  of  safety  }^i^'|- 

6  valves  for  boilers  of  different  sizes  and  pressures,  the  construction,  use 

7  and  location  of  fusible  safety  plugs,  appliances  for  indicating  the  pressure 

8  of  steam  and  the  level  of  water  in  the  boiler,  and  such  other  appliances  as 

9  the  board  may  deem  necessary  to  safety  in  operating  steam  boilers;  and 

10  make  a  standard  form  of  certificate  of  inspection.    The  attorney  general 

11  shall  assist  the  board  in  framing  the  rules.    Such  rules  shall  be  submitted 

12  to  the  governor  and  council  for  their  approval,  and  when  approved  shall 

13  have  the  force  of  law,  and  shall  be  printed  and  furnished  by  the  com- 

14  missioner  to  those  requesting  them. 

1  Section  3.     The  board  shall  hold  public  hearings  annually  on  the  Hearings. 

2  first  Thursday  in  May  and  November,  and  at  such  other  times  as  it  may  ^®°^'  ^^^'     ' 

3  determine,  on  petitions  for  changes  in  the  rules  formulated  by  it.     If, 

4  after  any  such  hearing,  it  shall  deem  it  advisable  to  make  changes  in  said 

5  rules,  it  shall  appoint  a  day  for  a  further  hearing,  and  shall  give  notice 

6  thereof  and  of  the  changes  proposed  by  advertising  in  at  least  one  news- 

7  paper  in  each  of  the  cities  of  Boston,  Worcester,  Springfield,  Fall  River, 

8  Lowell  and  Lynn,  at  least  ten  days  before  said  hearing.    If  the  board  on 

9  its  own  initiative  contemplates  changes  in  said  rules,  like  notice  and  a 
10  hearing  shall  be  given  and  held  before  the  adoption  thereof. 

1  Section  4.     Changes  in  the  rules  which  affect  the  construction  of  ^'"^^If' 

2  new  boilers  shall  take  effect  six  months  after  the  approval  of  the  same  iso^-  ^ss.  §  2. 

3  by  the  governor  and  council;  provided,  that  the  board  may,  upon  request, 

4  permit  the  application  of  such  change  in  rules  to  boilers  manufactured 

5  or  installed  during  said  six  months,    ^^^len  a  person  desires  to  manufac- 

6  ture  a  special  type  of  boiler  the  design  of  wliich  is  not  co^•ered  by  the 

7  rules  formulated  by  the  board,  he  shall  submit  drawings  and  specifica- 

8  tions  of  such  boiler  to  said  board,  which,  if  it  approves,  shall  permit  the 

9  construction  thereof. 

inspection  of  boilers. 

1  Section  5.     The  division  shall  enforce  this  chapter  and  the  rules  of  ?"''«« of 

nlii  1  1'  •!  •  T'..  inspectors  of 

2  the  board  except  when  otherwise  provided.    All  inspectors  of  the  division  ^gSi^'Yi."^""- 

3  may  enter  any  premises  in  the  pursuance  of  their  duty.  5§  s/s. 

ISflfi,  546,  §§  4,  7.  1906,  3S7,  §  6.  1913,  610,  §  4. 

1899,  368,  §§  8,  11.  1907,  465,  §  28.  1914,  407,  §  5. 

R  L.  102,  §  86.  1909,  393,  §  3.  1915.  259,  §  11. 

1905,  310.  §  3;  472,  §  3.        1911.  656,  |  6. 


1516 


INSPECTION   OF   BOILERS. 


[Chap.  146. 


Annual 

inspection 

1895,  418, 

§2. 

1898,  167. 

R.  L.  105, 

§3, 

Certain  boilers 

excepted. 

1895.418, 

§§  1.2. 

1898,  167. 

R.  L.  105, 

B  2,  3. 

1905,  472, 

i  1. 

1906,  387, 

§1. 

1907,  4fi5, 

§  1. 

1908,  563, 

§1. 

1909,  393, 

§§  1.3. 

1912,631, 

§  1. 

Section  6.     All  steam  boilers  and  their  appurtenances  except  those  1 

specified  in  the  following  section  shall  be  thoroughly  inspected  externally  2 

and  internally  at  least  once  a  year.                         i906,  3S7,  §  i.  3 

1907,  465,  §  1.       1908,  563,  §  1.       1909,  393,  §  1.       1912.  531,  §  1. 

Section  7.     The  preceding  section  shall  not  apply  to  boilers  of  rail-  1 

road  locomotives,  motor  vehicles  or  steam  fire  engines  brought  into  the  2 

commonwealth  for  temporary  use  in  times  of  emergency,  nor  to  boilers  3 

used  in  private  residences,  nor  to  those  used  solely  for  heating  public  4 

buildings  or  apartment  houses  which  carry  pressures  not  exceeding  fifteen  5 

pounds  to  the  square  inch  and  have  less  than  four  scjuare  feet  of  grate  6 

surface,  nor  to  boilers  of  not  more  than  three  horse  power.    The  said  7 

section  shall  not  apply  to  boilers  under  the  jurisdiction  of  the  United  8 

States  nor  to  those  used  exclusively  for  horticultural  or  agricultural  9 

purposes.  10 


Boilers  not  to 
be  operated 
without 
inspection. 
19011,  3S7,  §  2. 
1907,  465,  §  19. 
1912,  531,  I  1. 

Penalty,  §  33. 


Section  8.  No  person  shall  operate  or  cause  to  be  operated  any 
boiler  required  by  this  chapter  to  be  inspected  until  it  has  been  inspected, 
and  the  certificate  of  inspection  required  by  section  twenty-three  or 
twenty-five  has  been  issued  and  so  placed  in  the  engine  or  boiler  room  of 
the  plant  as  to  be  easily  read,  or  in  the  case  of  a  portable  boiler  kept  with 
it  and  alwavs  accessible. 


Boiler  not  to 
be  operated  in 
excess  of 
prescribed 
pressure. 

1907,  465,  §  1. 

1908,  563,  §  1. 

1909,  393,  I  1. 
1912,  S31.  I  1. 


Section  9.  No  person  shall  operate  or  cause  to  be  operated  any 
boiler  required  by  this  chapter  to  be  inspected  at  pressures  in  excess  of 
the  safe  working  pressure  ascertained  by  the  rules  of  the  board  and 
stated  in  the  certificate  of  inspection  nor  unless  the  boiler  is  equipped  with 
such  safety  appliances  as  are  prescribed  by  the  board.         Penalty,  §  33. 


Report  of 

uninsured 

boiler. 

1895,  418,  §  1. 

R.  L.  105,  §  2. 

1907,  465,  I  2. 

1912,  531,  §  2. 

1913,  610,  §  4. 

Penalty,  §  33. 


Duties  of 
inspector. 
1907,  465,  5  3. 


Section  10.     Whoever  owns,  or  uses  or  causes  to  be  used,  any  such  1 

boiler,  unless  the  same  is  under  the  periodically  guaranteed  inspection  2 

of  an  insurance  company  authorized  to  insure  boilers  in  the  common-  3 

wealth,  shall  report  in  writing  to  the  chief  the  location  of  such  boiler,  4 

before  the  work  of  installation  of  such  boiler  is  completed,  and  annually  5 

thereafter;    provided,  that  the  owner  or  user  of  an  insured  boiler  shall  6 

report  immediately  in  writing  to  the  chief  whenever  the  insurance  com-  7 

pany  ceases  for  any  cause  to  inspect  the  boiler.  8 

Section  11.     All  such  boilers  shall  be  inspected  externally  at  least  1 

once  each  year  when  in  operation,  and  the  inspector  shall  observe  the  2 

pressure  of  steam  carried  and  the  general  condition  of  each  boiler,  and  3 

ascertain  if  the  safety  valve  and  the  appliances  for  indicating  the  pres-  4 

sure  of  steam  and  level  of  the  water  in  the  boiler  are  in  proper  working  5 

order.  6 


Tampering 
with  safety 
appliance. 
1895,418,  §  4. 
R.  L.  105,  §  5. 


Section  12.     No  person  shall  remove  or  tamper  with  any  safety  appli-  1 

ance  prescribed  by  the  board  nor  load  the  safety  valve  to  a  greater  pres-  2 

sure  than  that  allowed  by  the  certificate  of  inspection.  3 

1907,  465,  §  3.  Penalty,  §  33. 


Inspection  by 
insurance  com- 
panies or 
mspectors  of 
the  division. 

1893,  387. 

1894,  481,  §  3. 


Section  13.     The  inspection  of  boilers  and  appurtenances  shall  be  1 

made  by  the  division,  under  the  super\ision  of  the  chief,  or  by  inspec-  2 

tors  of  insurance  companies  authorized  to  insure  steam  boilers  in  the  3 

commonwealth.                      is95,  4is.  §  s.                        1896,  S46,  §  4.  4 

1898,261.  R.  L.  105,  §1.  1907,  463,  §  4.  1913,  610,  §  4- 


Chap.  146.]  inspection  of  boilers.  1517 

1  Section  14.     Every  insurance  company  authorized  to  insure  steam  insurance 

2  boilers  in  the  commonwealth  shall  have  in  its  employ  at  least  one  in-  h°"e''fi?msed"' 

3  spector  who  holds  a  certificate  of  competency  under   section  sixty-two  igor.'^les^' 

4  and  resides  in  the  commonwealth.     When  an  inspector  holding  such  a  fgil^lsi,  ^  3. 

5  certificate  ceases  to  be  employed  by  an  insurance  company,  it  shall 

6  notify  the  commissioner,  giving  the  reasons  therefor. 

1  Section  15.     No  person  shall  act  as  an  inspector  of  boilers  for  an  Acting  as  in- 

2  insurance  company  unless  he  holds  a  certificate  of  competency  under  l^hcense"'"'""' 

3  section  sixty-two.  1907,  465,  1  5.  1912,  531,  §  3.  Penalty,  §  33.  prohibited. 

1  Section  16.     Any  insurance  company  which  issues  a  certificate  of  in-  same  subject  as 

2  spection  signed  by  an  inspector  who  does  not  hold  a  certificate  of  com-  i907','465°§'8. 

3  petency  may  have  its  authority  to  insure  steam  boilers  revoked  by  the 

4  commissioner  of  insurance. 

1  Section  17.     The  inspectors  of  the  division  shall  make  reports  of  all  Reports  of 

.  .  11111  1       •  1  1  •    p  inspectors  of 

2  mspections  and  shall  make  such  recommendations  to  the  chief  as  they  the  division. 

o  ^     1  ,.       ^  *'    R.  L.  105,  §  1. 

0  may  deem  expedient.  i907, 465,  §  9.  lois.  eio,  §  4. 

1  Section  18.     Every  insurance  company  shall  forward  to  the  chief,  i^su°an^ce^ 

2  within  fourteen  days  after  each  inspection,  reports  of  all  boilers  inspected  ^g^jP^^^'l^v  2 

3  by  it.    Such  reports  shall  be  made  on  blanks  furnished  by  the  chief,  and  i906,  387,  §  1 

.  .  .  1907, 465,  §  10 

4  shall  contain  all  orders  made  by  the  company  regarding  such  boUers.  i9i3i  eio!  §  4. 

Penalty,  §  33. 

1  Section  19.     Every  insurance  company  shall  report  immediately  to  insurance 

2  the  chief  the  name  of  the  owner  or  user  and  the  location  of  every  boiler  re^^t^an-™""" 

3  required  by  this  chapter  to  be  inspected,  upon  which  they  have  cancelled  ifoT^Tit^i  ii. 

4  or  refused  insurance,  giving  the  reasons  therefor. 

1913,  610,  §  4.  Penalty,  §  33. 

1  Section  20.    Boilers  and  their  appurtenances  used  exclusively  for  safety 

2  heating  purposes,  which  are  not  required  by  this  chapter  to  be  inspected,  i907.''465r§  12. 

3  shall  be  provided  with  such  safety  appliances  as  shall  be  prescribed  by 

4  the  board,  and  the  division  shall  inspect  such  boilers  upon  application 

5  of  the  owner. 

1  Section  21.     The  owner  or  user  of  a  boiler  required  by  this  chapter  Preparation  ot 

2  to  be  inspected  shall  prepare  the  boiler  for  inspection  as  directed  by  the  inspection. 

3  inspector.     The  inspector  shall,  if  requested,  give  the  owner  or  user  at  ilgg,  iw! 

4  least  fourteen  days'  notice  to  prepare  a  boiler  for  inspection;   provided,  J^qaIm]  i  13 

5  that  no  notice  shall  be  required  of  an  external  inspection  under  steam,  1^12, 531,  §  4. 

6  nor  if  the  boiler  is  being  installed  or  has  not  been  inspected  within  one  Penalty,  §  33. 

7  year  and  a  certificate  of  inspection  issued.     If,  in  the  judgment  of  an 

8  inspector  of  the  division,  any  such  boiler  or  its  appurtenances  is  in  a 

9  defective  or  dangerous  condition,  he  may  immediately  forbid  the  opera- 

10  tion  of  the  boiler,  Mhether  or  not  it  is  under  the  inspection  of  an  insurance 

11  company;   and  no  person  shall  again  operate  such  boiler,  or  cause  it  to 

12  be  operatetl,  until  a  certificate  of  inspection  has  been  issued  by  an  inspec- 

13  tor  of  the  division. 

1  Section  22.     The  owner  or  user  of  a  boiler  inspected  by  the  division  Fees  for  in- 

2  shall  pay  to  the  commissioner  five  dollars  for  each  boiler  internally  and  the  diNisioii. 


1518 


INSPECTION   OF  BOILERS. 


[Chap.  146. 


1895, 

418, 

§5. 

R.  L. 

105, 

§4. 

1905, 

472, 

§  1- 

1907, 

405, 

§  14. 

1912, 

531. 

§5. 

1913, 

610, 

§  4. 

1919, 

133. 

Certificate  of 

inspection  by 

the  division. 

1895, 

418, 

§§3, 

4. 

E.  L. 

105, 

§§4, 

5. 

190.5, 

472, 

§2. 

1907, 

465, 

§15. 

1912, 

531, 

§6. 

Penalty,  §  33. 


externally  inspected,  and  two  dollars  for  each  ^•isit  for  external  inspec-  3 

tion  under  steam,  and  two  dollars  for  each  cast  iron  sectional  boiler  4 

inspected.    The  commissioner  shall  pay  to  the  commonwealth  all  sums  5 

so  received.  6 

Section  2.3.  If,  upon  inspection,  the  inspector  of  the  division  finds  1 
the  boiler  to  be  in  safe  working  order,  with  the  fittings  necessary  to  safety,  2 
and  properly  set  up,  and  the  boiler  and  its  appurtenances  conform  to  the  3 
rules  of  the  board,  he  shall  issue  to  the  owner  or  user  thereof  a  certificate  4 
of  inspection  stating  the  maximum  pressure  at  which  the  boiler  may  be  5 
operated,  as  ascertained  by  the  rules  of  the  board,  and  thereupon  such  6 
owTier  or  user  may  operate  the  boiler  mentioned  in  the  certificate;  if  the  7 
inspector  finds  otherwise,  he  shall  withhold  his  certificate  until  the  boiler  8 
and  its  fittings  are  put  in  a  condition  to  insure  safety  of  operation,  and  9 
the  boiler  and  its  appurtenances  conform  to  the  rules  of  the  board,  and  10 
the  owner  or  user  shall  not  operate  such  boiler,  or  cause  it  to  be  operated,  1 1 
until  such  certificate  has  been  granted.  12 


Inspected  boiler 
to  be  stamped 
or  tagged. 

1906,  522. 
§§2,3. 

1907,  465,  §  16. 

Penalty,  §  33. 


Section  24.     Every  boiler  which  has  been  inspected  by  the  division  1 

shall  be  numbered  either  by  stamping  the  number  upon  the  boiler  or  by  2 

attaching  a  numbered  metal  tag  by  a  seal  or  otherwise  to  the  boiler  or  3 

its  fittings.    No  person  except  an  inspector  of  the  dixnsion  shall  deface  4 

or  remove  anv  such  number  or  tag.  5 


Certificate  of 

inspection  by 
insurance 
company. 
1905,  472,  §  2. 
1907,  465,  §  17. 
1912,  531,  §  7. 


Section  25.     Insurance   companies    shall,    after    each    internal    and  1 

external  inspection,  if  the  boiler  and  its  appurtenances  conform  to  the  2 

rules  of  the  board,  and  if  they  deem  the  boiler  to  be  in  safe  working  3 

condition  otherwise,  is.sue  a  certificate  of  inspection  stating  the  maximum  4 

pressure  at  which  the  boiler  may  be  operated  as  ascertained  by  the  rules  5 

of  the  board.  6 


First 
inspection. 

1907,  465,  §  18. 

1908.  563,  §  2. 
1913,  610,  §  4. 


Section  26.     If  a  boiler  is  insured  which  has  not  previously  been  1 

inspected  externally  and  internally  and  a  certificate  of  inspection  issued,  2 

the  company  so  insuring  shall  forthwith  notify  the  chief  to  that  effect,  3 

and  shall  inspect  such  boiler  internally  and  externally  within  one  month  4 

after  the  insurance  is  effected.    No  insurance  shall  be  effected  on  any  5 

boiler  which  does  not  conform  to  the  rules  of  the  board.  6 


Contents  of 
certificate. 
1907,  465,  §  19. 


Section  27.     The  certificate  of  inspection  issued  by  the  division,  or  1 

by  an  insurance  company,  shall  state  the  name  of  the  owner  or  user,  the  2 

location,  size  and  number  of  the  boiler,  the  date  of  inspection  and  the  3 

maximum  pressure  at  which  it  may  be  operated,  with  the  signature  of  4 

the  inspector,  and  shall  contain  such  extracts  from  the  statutes  as  shall  5 

be  deemed  necessary  by  the  board.    It  shall  be  so  placed  in  the  engine  6 

or  boiler  room  of  the  plant  where  the  boiler  is  located  as  to  be  easily  7 

read,  except  that  the  certificate  of  inspection  for  a  portable  boiler  shall  8 

be  kept  with  it  and  shall  be  always  accessible.  9 


Safety  plug. 
1850,  277,  §  1. 
G.  S.  88.  §  43. 
P.  S.  102,  §  51. 
R.  L.  105,  §  9. 
1907,  465,  I  20. 

Penalty,  §  33. 


Section  28.     No  person  shall  use,  or  cause  to  be  used,  a  steam  boiler,  1 

excepting  boilers  upon  motor  vehicles,  steam  fire  engines,  boilers  in  private  2 

residences,  or  boilers  under  the  jurisdiction  of  the  United  States,  unless  3 

it  is  equipped  with  a  fusible  safety  plug  made  of  lead  or  some  other  equally  4 

fusible  material,  as  specified  by  the  rules  of  the  board.  5 


ClL\P.    146.]  COMPRESSED    AIR   TANKS.  1519 

1  Section  29.     The  owner  or  user  of  any  boiler  required  by  this  chapter  Notice  of 

2  to  be  inspected  shall  immediately  notify  the  division  or  the  insurance  boiler. 

3  company,  if  the  boiler  is  insured,  if  a  defect  affecting  the  safety  of  the        '      '    " 

4  boiler  is  discovered. 

1  Section  30.     If  the  insurance  on  any  boiler  required  by  this  chapter  Uninsured 

2  to  be  inspected  expires,  or  is  cancelled  because  the  insurers  deem  it  un-  be'o^erated" 

3  safe  to  continue  the  operation  thereof,  the  owner  or  user  shall  cease  to  isO'^^^s,  §  22. 

4  operate  it  until  it  has  been  put  in  a  safe  condition,  satisfactory  to  the  i'«'i''"y'  §  33. 

5  insurers,  or  has  been  inspected  by  the  division  and  a  certificate  of  inspec- 

6  tion  has  been  issued. 

1  Section  31.     If,  in  the  judgment  of  the  inspector  of  the  division  or  of  ^/^f™l^^^l^ 

2  the  insurance  company,  it  is  ad\'isable  to  apply  a  hydrostatic  pressure  i907, 465,  §  23. 

3  test  to  a  boiler,  the  owner  or  user  shall  prepare  the  boiler  for  such  test, 

4  as  directed  by  the  inspector  of  the  division  or  by  the  insurance  company. 

1  Section  32.     No  person  shall  prevent  or  attempt  to  prevent  the  Hindering 

2  chief  or  any  inspector  of  the  di\-ision  from  entering  any  premises  on  which  forbfdden. 

3  a  boiler  is  situated. 

1906,  387,  §  5.  1907,  465,  §  2.8.  1909,  393,  §  3.  Penalty.  §  33. 

1  Section  33.     Whoever  violates  any  provision  of  sections  five    to  Penalty. 

2  thirty-two,  inclusive,  or  of  the  rules  of  the  board  shall  be  punished  by  111°]  llr.  ^  ^' 

3  a  fine  of  not  less  than  twenty  nor  more  than  five  hundred  dollars  or  by  p;  |;  fo2,V53. 

4  imprisonment  for  not  more  than  six  months,  or  both. 

1895,  418,  §7.  1906,  387,  §§4,  5;  1907.  465,  §  28. 

R.  L.  105,  §§  6,  11.  522,  §  3.  1909,  393,  §  3. 

compressed  air  tanks. 

1  Section  34.     No  person  shall  install  or  use,  or  cause  to  be  installed  ^„';|^?J|- 

2  or  used,  any  tank  or  other  receptacle,  except  when  attached  to  loco-  §§  i,'?. 

3  motives,  street  or  railway  cars,  vessels  or  motor  vehicles,  for  the  storing  649, '§§  i,'7. 

4  of  compressed  air  at  any  pressure  exceeding  fifty  pounds  per  square  inch,  penalty,  §  4i. 

5  for  use  in  operating  pneumatic  machinery,  unless  the  owner  or  user  thereof 

6  shall  hold  a  certificate  of  inspection  issued  by  the  division,  certifying  that 

7  the  said  tank  or  other  receptacle  has  duly  been  inspected  within  two 

8  years,  or  unless  the  owner  or  user  shall  hold  a  policy  of  insurance  upon 

9  the  said  tank  or  other  receptacle  issued  by  an  insurance  company  author- 

10  ized  to  insure  air  tanks  within  the  commonwealth,  together  with  a  certif- 

1 1  icate  of  inspection  from  an  insurance  inspector  who  holds  a  certificate  of 

12  competency  described  in  section  sixty-two. 

1  Section  35.     The  board  shall  prescribe  regulations  for  the  size,  shape,  Ruiea  for 

2  construction,  gauges,  operation,  maximum  pressure,  safety  devices,  use  i9i3f'629,  §  2. 

3  of  oil,  and  other  appurtenances  necessary  for  the  safe  operation  of  such  lll*\^'i^'  ^  ^' 

4  tanks  or  other  receptacles. 

1  Section  36.     The  division  shall  inspect  at  least  once  in  two  years  all  J!!??®^ oq^i  3 

2  such  tanks  or  other  receptacles,  except  such  as  are  covered  by  a  policy  of  1914!  649',  §  3. 

3  insurance  and  inspected  by  insurance  inspectors  as  specified  in  section 

4  thirty-four. 

1  Section  37.     Owners  of  such  tanks  or  other  receptacles  shall  notify  Notice. 

2  the  commissioner  of  the  location  thereof.  1914, 649,  §  4.  ^^^^'  ''^°'  ^  ■*' 


1520 


LICENSES    OF   ENGINEERS    .tND    FIREMEN. 


[ClL\P.    146. 


Reports  of 
inspection. 

1913,  629.  §  5. 

1914,  649,  §  5. 


Section  38.     Every   insurance    company   authorized    to    insure    air  1 

tanks  within  the  commonwealth  shall    forward   to    the   commissioner,  2 

within  fourteen  days  after  each  inspection  of  an  air  tank  or  other  such  3 

receptacle,  a  report  of  such  inspection.    The  reports  shall  be  made  on  4 

blanks  furnished  by  the  division,  and  shall  contain  all  orders  and  regula-  5 

tions  made  by  the  company  regarding  the  air  tanks  or  other  receptacles  6 

so  inspected.  7 


Teats  for 

inspection. 

1913,  629,  §  6. 

1914,  127,  §  3; 
649,  §  6. 


Section  39.  The  inspection  shall  consist  of  a  hammer  test,  and,  if 
required  by  the  inspector,  a  hydrostatic  test  the  pressure  of  which  shall 
be  one  and  one  half  times  the  pressure  allowed  on  the  air  tank  or  other 
receptacle  inspected.  The  air  tank  or  other  receptacle  shall  be  prepared 
for  inspection  by  the  owner  or  user  thereof. 


Fees. 

1913,  629,  §  8. 

1914,  649.  I  8. 
1919,  133. 


Section  40.     Three  dollars  shall  be  paid  to  the  commissioner  by  the  1 

owner,  agent  or  user  of  any  such  tank  or  other  receptacle  for  e\'ery  inspec-  2 

tion  thereof.    The  commissioner  shall  pay  to  the  commonwealth  all  sums  3 

so  received.  4 


Penalty. 

1913,  629,  I  9. 

1914,  649,  I  9. 


Section  41.     Wioever  violates  any  provision  of  sections  thirty-four  1 

to  thirty-nine,  inclusive,  or  any  regulation  made  under  authority  thereof,  2 

shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  by  imprison-  3 

ment  for  not  more  than  one  month,  or  both.  4 


Ammonia 
compressors. 


AMMONIA   COMPRESSORS. 


Section  42.     No  person  shall  use  an  ammonia  compressor  unless  it  is     1 


1914, 467,  §  1,    equipped  with  a  safety  valve. 


Penalty,  §  55. 


1914T467,  §2.        Section  43.    The  board  shall  formulate  rules  for  the  size,  design, 
location  and  piping  of  safety  valves  on  ammonia  compressors. 


ForcfoMaw''^        Section  44.     The  rules  so  formulated  shall  have  the  force  of  law  1 

1914, 467,  §3.    gjjjj  gj^j^jj  ^jg  printed  and  furnished  to  those  requesting  them  by  the  2 

division.  3 

Sl"^^'"  Section  45.     Any  changes  in  the  rules  as  formulated  by  the  board  1 

1914, 467, 5  4.    gj^^^jj  ijg  made  in  accordance  with  sections  three  and  four.  2 


Licenses  for 

operating 

boilers  or 

engines. 

1S95,  471,  § 

1896,  546,  I 

1S99,  308, 

§§1,5. 

R.  L.  102, 

§§  78,  SO. 

1907,  373, 

1911,562, 

§§  1.2. 

1914,451. 

1915,  259, 

«  1,  3. 

196  Mass.  402. 

1  Op.  A.  G.  485. 

Penalty,  §  od. 


,  §  1. 


LICENSES    OF   ENGINEERS   AND   FIREMEN. 

Section  46.     No  person  shall  have  charge  of  or  operate  a  steam  1 

boiler  or  engine  or  its  appurtenances,  except  boilers  and  engines  upon  2 

locomotives,  motor  vehicles,  boilers  and  engines  in  private  residences,  3 

boilers  in  apartment  houses  of  less  than  five  apartments,  boilers  and  4 

engines  under  the  jurisdiction  of  the  United  States,  boilers  and  engines  5 

used  for  agricultural  purposes  exclusively,  boOers  and  engines  of  less  than  6 

nine  horse  power,  and  boilers  used  for  heating  purposes  exclusively  which  7 

are  provided  with  a  device  approved  by  the  commissioner  limiting  the  8 

pressure  carried  to  fifteen  pounds  to  the  square  inch,  unless  he  holds  a  9 

license  as  hereinafter  provided.    The  owner  or  user  of  a  steam  boiler  or  10 

engine,  other  than  boilers  or  engines  above  excepted,  shall  not  operate  or  11 

cause  to  be  operated  a  steam  boiler  or  engine  or  its  appurtenances  for  a  12 

period  of  more  than  one  week,  unless  the  person  in  charge  of  and  operat-  13 


ClL\P.    146.]  LICENSES   OF  ENGINEERS   .\ND   FIREMEN.  1521 

14  ing  it  is  duly  licensed;   provided,  that  in  manufacturing  plants  an  unli- 

15  censed  person  may  operate,  under  a  licensed  person  on  duty,  a  simple 

16  non-condensing  engine  of  not  more  than  one  hundred  and  fifty  horse 

17  power,  and  in  any  plant  one  unlicensed  person  may  be  employed  under 
IS  the  personal  direction  of  each  licensed  person  in  the  plant  to  operate 
19  the  appurtenances  of  a  boiler  or  engine. 

1  Section  47.     If  such  steam  engine  or  boiler  or  an  appurtenance  thereof  violation  of 

2  is  found  to  be  in  charge  of,  or  operated  by,  a  person  not  duly  licensed  as  section. 

3  an  engineer  or  fireman,  and,  after  a  lapse  of  one  week  from  such  time,  r.  l!  102'.  1 79. 

4  it  is  again  found  to  be  so  operated  by  an  unlicensed  person,  it  shall  be  ii'l,'!.^^' 

5  deemed  prima  facie  evidence  of  a  violation  of  the  preceding  section. 

1  Section  48.    The  horse  power  of  a  boiler  shall  be  ascertained  upon  a  Determination 

2  basis  of  three  horse  power  for  each  square  foot  of  grate  surface  or  equiva-  is99°*368,  §  6. 

3  lent,  when  the  safety  valve  is  set  to  blow  at  a  pressure  exceeding  twenty-  ign;  562!  §  s.' 

4  five  pounds  per  square  inch,  and  on  a  basis  of  one  and  one  half  horse  power  '®'^'  ^°®'  ^  *■ 

5  for  each  square  foot  of  grate  sinface  or  equivalent,  when  the  safety  valve 

6  is  set  to  blow  at  twenty-fi\e  pounds  pressure  per  square  inch  or  less. 

7  The  horse  power  of  a  reciprocating  steam  engine  shall  be  ascertained 

8  upon  the  basis  of  a  mean  effective  pressure  of  forty  pounds  per  square 

9  inch  of  piston  for  a  simple  engine,  fifty  pounds  for  a  condensing  engine, 

10  and  seventy  pounds  for  a  compound  engine,  calculated  upon  the  area  of 

11  the  high  pressure  piston.    A  variable  speed  engine  shall  be  rated  at  its 

12  designed  mean  speed. 

13  A  steam  turbine  engine  shall  be  rated  at  less  than  nine  horse  power 

14  when  the  external  diameter  of  the  steam  supply  pipe  does  not  exceed  one 

15  and  three  fourths  inches,  at  fifty  horse  power  when  it  exceeds  one  and 

16  three  fourths  inches  and  does  not  exceed  three  and  one  half  inches,  and 

17  at  one  hundred  and  fifty  horse  power  when  it  exceeds  three  and  one  half 

18  inches  and  does  not  exceed  five  inches. 

1  Section  49.     Licenses  shall  be  granted  according  to  the  competence  classes  of 

2  of  the  applicant,  anfl  shall  be  classified  as  follows:   Engineers'  licenses:  1895.^471,  §  3. 

3  First  class,  to  have  charge  of  and  operate  any  steam  plant.    Second  class,  Jfoo,  201'  ^  *' 

4  to  have  charge  of  and  operate  a  boiler  or  boilers,  and  to  have  charge  of  f^^-  i^j  |  f^ 

5  and  operate  engines,  no  one  of  which  shall  exceed  one  hundred  and  fifty  i^o^.^i;* 

6  horse  power,  or  to  operate  a  first  class  plant  under  the  engineer  in  direct  ion!  562!  §  i. 

7  charge  thereof.    Third  class,  to  have  charge  of  and  operate  a  boiler  or  1915. 259,  §  7. 

8  boilers  not  exceeding  in  the  aggregate  one  hundred  and  fifty  horse  power, 

9  and  an  engine  or  engines  not,  exceeding  fifty  horse  power  each,  or  to 

10  operate  a  second  class  plant  under  the  engineer  in  direct  charge  thereof. 

11  Fourth  class,  to  have  charge  of  and  operate  hoisting  and  portable  steam 

12  engines  and  boilers.    Portable  class,  to  have  charge  of  or  to  operate  port- 

13  able  boilers  and  portable  engines,  except  hoisting  engines  or  steam  fire 

14  engines.    Steam  fire  engineer's  class,  to  have  charge  of  or  to  operate  steam 

15  fire  engines  and  boilers.     Firemen's  licenses:    Extra  first  class,  to  have 

16  charge  of  and  operate  any  boiler  or  boilers.    First  class,  to  have  charge  of 

17  and  operate  any  boiler  or  boilers  where  the  safety  valve  or  valves  are 

18  set  to  blow  at  a  pressure  not  exceeding  twenty-five  pounds  to  the  square 

19  inch,  or  to  operate  high  pressure  boilers  under  the  engineer  or  fireman 

20  in  direct  charge  thereof.     Second  class,  to  operate  any  boiler  or  boilers 

21  under  the  engineer  or  fireman  in  direct  charge  thereof.    A  person  holding 

22  an  extra  first  class  or  first  class  fireman's  license  may  operate  a  third  class 


1522 


LICENSES   OF   ENGINEERS   AND   FIREMEN. 


[ClL\P.    146. 


plant  under  the  engineer  in  direct  charge  thereof.    Special  licenses:   A  2.3 

person  who  desires  to  have  charge  of  or  to  operate  a  particular  steam  24 

plant  may,  if  he  files  with  his  application  for  such  examination  a  WTitten  25 

request  signed  by  the  owner  or  user  of  the  plant,  be  examined  as  to  his  26 

competence  for  such  service  and  no  other,  and,  if  found  competent  and  27 

trustworthy,  he  shall  be  granted  a  license  for  such  service,  and  no  other;  28 

provided,  that  no  special  license  shall  be  granted  to  give  any  person  charge  29 

of  or  permission  to  operate  an  engine  of  over  one  hundred  and  fifty  horse  30 

power,  except  that  where  the  main  power  plant  is  run  by  water  power  31 

exclusively  during  the  major  part  of  the  time,  and  has  auxiliary  steam  32 

power  for  use  during  periods  of  low  water,  a  special  license  may  be  issued  33 

to  an  applicant  holding  an  engineer's  license.  34 


Qualifications 
of  licensees. 
1911.562,  §  3. 
1915.  259,  §  4. 


Section  50.  To  be  eligible  for  examination  for  a  first  class  fireman's  1 
license,  a  person  must  have  been  employed  as  a  steam  engineer  or  fire-  2 
man  in  charge  of  or  operating  boilers  for  not  less  than  one  year,  or  he  must  3 
have  held  and  used  a  second  class  fireman's  license  for  not  less  than  six  4 
months.  To  be  eligible  for  examination  for  a  third  class  engineer's  5 
license,  a  person  must  have  been  employed  as  a  steam  engineer  or  fire-  6 
man  in  charge  of  or  operating  boilers  for  not  less  than  one  and  one  half  7 
years,  or  he  must  have  held  and  used  a  first  class  fireman's  license  for  not  8 
less  than  one  year.  To  be  eligible  for  examination  for  a  second  class  9 
engineer's  license,  a  person  must  have  been  employed  as  an  engineer  in  10 
charge  of  a  steam  plant  or  plants  having  at  least  one  engine  of  over  11 
fifty  horse  power  for  not  less  than  two  years,  or  he  must  have  held  and  12 
used  a  third  class  engineer's  license  either  as  an  engineer,  assistant  engineer  13 
or  fireman  for  not  less  than  one  year,  or  have  held  and  used  a  special  license  14 
to  operate  a  first  class  plant  for  not  less  than  two  years;  except  that  any  15 
person  who  has  served  three  years  as  apprentice  to  the  machinist  or  16 
boiler  making  trade  in  stationary,  marine  or  locomotive  engine  or  boiler  17 
works  and  who  has  been  employed  for  one  year  in  connection  with  the  18 
operation  of  a  steam  plant,  or  any  person  graduated  as  a  mechanical  19 
engineer  from  a  duly  recognized  school  of  technology  who  has  been  20 
employed  for  one  year  in  connection  with  the  operation  of  a  steam  plant,  21 
shall  be  eligible  for  examination  for  a  second  class  engineer's  license.  22 
To  be  eligible  for  examination  for  a  first  class  engineer's  license,  a  person  23 
must  have  been  employed  for  not  less  than  three  years  as  an  engineer  24 
in  charge  of  a  steam  plant  or  plants  having  at  least  one  engine  of  over  one  25 
hundred  and  fifty  horse  power,  or  he  must  have  held  and  used  a  second  26 
class  engineer's  license  in  a  second  class  or  first  class  plant  for  not  less  than  27 
one  and  one  half  vears.  28 


Posting  of 
license. 
Daily  record. 
1899,  368,  §  10. 
R.  L.  102,  §  85. 
1907,  373.  §  4. 
1911,562,  §  7. 
1915,  259,  §  10. 


Section  51.     An  engineer's  or  fireman's  license  shall  be  so  placed  in  1 

the  engine  or  boiler  room  of  the  plant  operated  by  the  licensee  as  to  be  2 

easily  read.     The  person  in  charge  of  a  stationary  steam  boiler  upon  3 

which  the  safety  valve  is  set  to  blow  off'  at  more  than  twenty-five  pounds  4 

pressure  to  the  square  inch,  except  boilers  in  private  residences,  boilers  5 

in  apartment  houses  of  less  than  five  apartments,  boilers  under  the  juris-  6 

diction  of  the  United  States,  boilers  used  for  agricultural  purposes  ex-  7 

clusi^'ely,  and  boilers  of  less  than  nine  horse  power,  shall  keep  a  daily  8 

record  of  the  boiler,  its  condition  \\hen  under  steam,  and  of  all  re])airs  9 

made  and  work  done  on  it,  upon  forms  to  be  obtainetl  upon  application  10 

to  the  department.    These  records  shall  be  kept  on  file  and  shall  be  al-  1 1 

ways  accessible  to  the  chief  and  inspectors  of  the  division.  12 


Chap.  14G.]  ex.\minations  for  licenses,  etc.  1523 

1  Section  52.    A  license  in  force  on  May  seventeenth,  nineteen  hun-  Licenses  in 

2  dred  and  fifteen,  shall  continue  in  force  until  it  is  suspended  or  revoked  lois. 


1S95,  471.  §  2. 


3. 

8L 


3  for  the  incompetence  or  untrustworthiness  of  the  licensee,  except  that  imi,  5411  _ 

4  a  special  license  shall  not  continue  in  force  after  the  holder  thereof  ^°l[  f^i;  | 

5  ceases  to  be  employed  in  the  plant  specifiefl  in  the  license.    A  license  in  J^n.  562, 5  s^ 

6  force  on  said  date  may  be  exchanged  for  a  license  of  the  same  class  under  i9"  Mass.  402. 

7  section  forty-nine  at  any  time  thereafter,  on  application  to  the  division, 

8  upon  forms  to  be  furnished  by  said  division.    The  applicant  shall  make 

9  oath  to  the  statements  contained  in  the  said  application,  and  the  chief  or 
10  any  inspector  of  the  division  may  administer  the  oath. 

licenses  for  operating  hoisting  machinery  not  run  by  steam. 

1  Section  53.     No  person  shall  operate  derricks,  cableways,  machinery  Hoisting 

2  used  for  discharging  cargoes,  temporary  elevator  cars  used  on  excavation  1911,  ese,' 

3  work  or  used  for  hoisting  building  material,  when  the  motive  power  to  1915,211,  §  1. 

4  operate  such  machinery  is  mechanical  and  other  than  steam,  unless  he  Penalty.  §  55. 

5  holds  a  license  as  hereinafter  provided.    The  owner  or  user  of  such  hoist- 

6  ing  machinery  shall  not  operate,  or  cause  to  be  operated,  such  machinery 

7  for  a  period  of  more  than  one  week,  unless  the  person  operating  it  is  duly 

8  licensed. 

1  Section  54.     A  license  to  operate  such  hoisting  machinery  shall  be  License  to  be 

2  carried  on  the  person  of  the  holder  thereof  when  operating  the  same.  person.  ° 

1911,  G56,  §  .5. 

1  Section  55.     Whoever  violates  any  provision  of  sections  forty-two  Penalty. 

2  to  fifty-four,  inclusive,  or  any  rule  made  thereunder,  or  prevents  or  at-  isge]  bin',  §  i'. 

3  tempts  to  pre\-ent  an  inspector  from  entering  on  any  premises  in  the  dis-  fgos;  1%',  1 1^' 

4  charge  of  his  duty  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  J^}|;  4^7;  1 5; 

5  more  than  three  hundred  dollars  or  by  imprisonment  for  not  more  than  i^i^,  259. 1  li. 

6  three  months. 

ex.uiinations  of  applicants  for  licenses,  etc. 

1  Section  56.    The  chief  and  inspectors  of  the  division  shall  act,  as  inspectors  of 

2  provided  in  sections  fifty-seven  to  sixty-seven,  inclusive,  as  examiners  tolcras'"" 

3  of  applicants  for  certificates  of  competency  to  inspect  boilers,  and  for  llg™'^!"' 

4  licenses  as  engineers  or  firemen   or  operators   of  hoisting   machinery.  Jggg'  \^\'  |  f 

5  The  chief  or  any  such  inspector  may  administer  the  oath  to  applicants.  is9|'  |*J' » ^■ 

1S99,  368,  §  8.  1905,  310,  §3.  1915,  259,  §§  5,  11. 

R.  L.  102,  §  86;  105,  §  1.      1911,  562,  §  3;  656,  §§  3,  6. 

1  Section  57.     Applications  shall  be  made  under  oath  on  forms  to  be  Applications 

2  supplied  by  the  division,  and  shall  show  the  total  experience  of  the  ap-  is95,°47i,^' 

3  plicant.    An  applicant  shall  not  be  examined  more  than  once  in  ninety  i896,546, 

4  days  except  in  case  of  an  appeal.    Each  application  for  a  license  as  eii-  ilol'^los, 

5  gineer,  fireman  or  operator  of  hoisting  machinery  shall  be  accompanied  |^§  ^  ''^^^  .  ^j 

6  by  a  fee  of  one  dollar.  i90.-),  3io,  §  i. 

1907,  465,  §  6.  1911,  563,  §  3;  650,  §  3.  1915,  259,  §5  4,  5. 

1  Section  58.     In  all  examinations  or  appeals  the  applicant  may  have  Applicants 

2  one  person  present  who  may  take  notes  if  he  so  desires.     In  case  of  ap-  pe"soirpresent. 

3  plicaiits  for  certificates  of  competency  to  inspect  boilers  such  person  shall  §§'"*3,'9.''  ' 

4  be  a  representative  of  an  insurance  company  employing  the  applicant  or  "^  si/gl.' 

5  wishing  to  do  so.  isos,  sic,  §  i.  i907, 373,  §  3;  405,  §  7. 

1911,  502,  §§  3,  6;  656,  §§  3,  4.  1915,  259,  §§  6,  9. 


1524 


EXAMINATIONS   FOR   LICENSES,   ETC. 


[Chap.  146. 


Revocation 
of  licenses. 
1895.471.  §  2 
1891),  546,  §  2. 
1899,  368.  §  3. 
R.  L.  102,  §  81. 
1905,  310,  §  1. 
1907,  465,  §  6. 
1911,562,  I  3; 
656.  §  3. 
1915.  259, 
§§  5,  6. 


Section  59.  A  certificate  of  competency  to  inspect  boilers  shall  be 
revoked  and  a  license  as  engineer  or  fireman  or  operator  of  hoisting  ma- 
chinen'  shall  be  suspended  or  re\oked  for  incompetence  or  untriist- 
worthiness  of  the  holder  thereof.  A  wilfully  false  statement  in  the 
application  shall  be  sufficient  cause  for  revocation  at  any  time.  If  a 
certificate  or  license  is  lost  or  destroyed  a  new  certificate  shall  be  issued 
without  examination  upon  satisfactory  proof  thereof. 


Application 
for  license. 
1907,  465,  §  6. 


examination  of  inspectors  of  boilers. 

Section  60.     The  application  of  a  person  desiring  to  act  as  inspector  1 

of  boilers  for  an  insurance  company  shall  be  accompanied  by  a  written  2 

request  for  an  examination  by  said  company.  3 


Board  of 
examiners. 
1907,  465.  §  6. 


Section  61.     Three  inspectors  of  the  division  shall  act  as  a  board  1 

of  examiners.     The  applicant  shall  be  examined  as  to  the  construe-  2 

tion,  installation,  maintenance  and  repair  of  steam  boUers  and  their  .3 

appurtenances.  4 


com'et?nc°'         SECTION  62.     If  the  applicant  is  found  competent  he  shall  receive  a  1 

1907, 465,  §  6.    certificate  of  competency  to  inspect  steam  boilers  for  the  company  which  2 

requested  the  examination.    The  certificate  shall  remain  in  force  during  3 

his  emploj-ment  by  the  company  unless  sooner  revoked.  4 


Appeal. 
1907,  465,  §  7. 


Section  63.     A  person  who  is  refused  a  certificate  of  competency,  or  1 

whose  certificate  is  revoked,  may  appeal  from  such  decision  to  the  com-  2 

missioner,  who  shall  grant  a  rehearing  of  the  case  by  a  board  of  five  3 

examiners,  no  one  of  whom  shall  have  actetl  as  an  examiner  in  the  former  4 

instance.    Their  decision  shall  be  final  if  approved  by  said  commissioner.  5 


Application 
for  license  as 
engineer  or 
fireman. 
Examination. 
1895,471,  §  2. 
1896,  546,  §  2. 
1899,  368,  §  3. 
R.  L.  102,  §  81. 
1905,  310, 
§§1,3. 
1911,562,  §  3. 
1913,610,  §  4. 
1915,  259, 
§§  4,  5. 


examination   of   engineers,   firemen   or   operators   of   hoisting 

machinery. 

Section  64.     WTioever  desires  to  act  as  an  engineer  or  fireman  shall  1 

apply  for  a  license  to  the  inspector  of  the  division  for  the  town  where  2 

he  resides  or  is  employed.    The  examinations  shall  be  uniform  throughout  3 

the  commonwealth.    The  applicant  shall  be  given  a  practical  examina-  4 

tion,  and,  if  found  competent  and  trustworthy,  he  shall  receive  a  license  5 

graded  according  to  the  merits  of  his  examination.    An  applicant  for  a  6 

first  class  or  second  class  engineer's  license  or  for  a  special  license  shall  7 

be  examined  by  a  board  consisting  of  three  inspectors  of  the  division,  8 

or  two  inspectors  and  the  chief,  and,  if  the  applicant  is  employed,  one  9 

member  of  said  board  shall  be  the  department  inspector  of  boilers  for  the  10 

town  where  the  applicant  is  employed,  and  the  decision  of  said  board  11 

shall  be  final.     An  applicant  for  a  license  as  an  engineer  of  any  other  12 

class  or  as  a  fireman  shall  be  examinetl  by  one  inspector  of  the  division,  13 

from  whose  decision  there  shall  be  an  appeal  as  provided  in  section  14 

sixtv-six.  1^ 


f^^licfnir  Section  65.     Whoever  desires  to  act  as  an  operator  of  hoisting  ma-    1 

hoistin"'^         chinery  shall  apply  to  the  inspector  of  the  division  for  the  town  where    2 
machinery.        ^g  residcs  or  is  employed.    He  shall  be  given  a  practical  examination  by    3 


Chap.  147.] 


STATE   .\ND   OTHER   POLICE,    ETC. 


1525 


4  a  department  inspector,  and  if  found  competent  and  trustworthy  shall  Jc^'g®^^' 

5  receive  a  license  to  operate  such  machinery.    He  shall  be  examined  only  i9i5. 211,  §  1. 

6  as  to  his  ability  to  use  the  particular  machinery,  whether  a  gasoline  or 

7  electric  engine  or  otherwise,  which  he  desires  to  operate,  and  the  license 

8  shall  be  limited  to  that  particular  kind  of  machinery;  but  if  he  so  recjuests, 

9  the  applicant  may  be  examined  as  to  his  proficiency  in  the  various  kinds 

10  of  machinery  use<l  for  hoisting,  and  the  license  shall  include  those  kinds 

1 1  of  machinery  in  respect  to  which  he  is  found  competent. 

1  Section  6G.     A  person  aggrieved  by  the  action  of  a  single  examiner  Appeal. 

2  in  refusing,  suspending  or  revoking  a  license  to  act  as  engineer,  fireman  Um]  til'.  1 1'. 

3  or  operator  of  hoisting  machinery  may,  M'ithin  one  week,  appeal  there-  ^^l]  jq?;  |  si. 

4  from  to  the  chief,  who  shall  appoint  three  inspectors  of  the  division,  \f>l-  H^- 1  g. 

5  or  himself  and  two  inspectors,  to  act  together  as  a  board  of  appeal.    The  ^sb,  §  4. ' 

6  decision  of  a  majority  of  the  members  of  the  board  of  appeal  shall  be  final,  lois!  259!  §  9'. 


1  Section  67.    A  license  shall  continue  in  force  until  it  is  suspended  or  License  in 

2  revoked  for  incompetence  or  untrustworthiness  of  the  licensee,  except  [evoled  or 

3  that  a  special  license  shall  not  continue  in  force  after  the  holder  thereof  i89|™7'i'^§  2 

4  ceases  to  be  employed  in  the  plant  specified  in  the  license.    A  person  whose  J|||ij'  |^g'  I  f 

5  license  is  suspended  or  revoketl  shall  surrender  his  license  to  the  chief  or  R  l'  102',  §  si. 

6  an  inspector  of  the  division.    If  a  new  license  of  a  different  grade  is  issued,  1911!  502;  §  3'; 

7  the  old  license  shall  be  destroyed  by  the  examiner.  i9i5, 259,  §  6. 


656,  §  3. 


GENERAL  PROVISIONS. 

1  Section  68.     Trial  justices  shall  have  jurisdiction  of  complaints  for  Trial  justices. 

2  violation  of  the  provisions  of  this  chapter,  or  of  rules  made  hereunder,  r*®l.'  102,'  |  se' 

3  and  may  impose  fines  of  not  more  than  fifty  dollars.  1905, 310.  §  3. 

1907,  465,  §  28.       1909,  393,  §  3.        1911,  656,  §  6.       1915,  259,  §  11. 

1  Section  69.     The  commissioner  may  expend  the  amount  annually  Appropriation 

2  appropriated  for  investigation  work,  for  apparatus  used  in  connection  i°909fi3L''"'' 

3  with  the  inspection  of  steam  boilers  and  for  the  installation  and  niain- 

4  tenance  of  apparatus  in  the  examination  of  engineers  and  firemen. 


CHAPTER     147. 


STATE  AND  OTHER  POLICE,  AND  CERTAIN  POWERS  AND  DUTIES  OF 
THE  DEPARTMENT   OF   PUBLIC   SAFETY. 


Sect. 

1.  Certain  duties  of  the  commissioner  of 

public  safety. 

2.  Powers. 

3.  Penalty  for  receiving  rewards,  etc. 

4.  Commissioner  may  secure  extra  police 

officers. 

5.  Appeal  from  orders,  etc. 

6.  Destruction  of  old  reports,  etc. 

7.  Constables,  etc.,  to  aid  governor,  when. 

8.  County  police,  appointment,  powers  and 

duties. 


Sect. 

8pechl  police  officers. 
9.   Massachusetts  Society  for  the  Preven- 
tion of  Cruelty  to  Children. 

10.  Massachusetts  Society  for  Prevention 

of  Cruelty  to  Animals. 

RESERVE    POLICE    FORCE    IN    CITIES. 

11.  Reserve  police  force. 

12.  Number  of  members. 

13.  Powers,  duties,  compensation. 


1526 


CERT.VCN  POWERS,   ETC.,   OF  DEP.iETMENT   OF   PUBLIC   SAFETY.       [CH-VP.    147. 


Sect. 


DAT8    OFF    FOR    POLICE. 


14.  Police  in  cities  and  towns. 

15.  Same  subject. 

16.  Same  subject. 

17.  Same  subject. 

POLICE    MATRONS. 

18.  Police  matrons  in  cities. 

19.  Tenure  of  ofBee,  salarj',  duties. 

20.  Duties  of  matron. 

21.  "Police  station",  "station",  defined. 

PRIVATE   DETECTIVES. 

22.  License  required. 

23.  Requirements  for  license,  etc. 

24.  Application  for  license. 

25.  Contents  of  license. 

26.  Fee.     Bond. 

27.  Revocation. 

28.  Penalty  for  di-iTilging  information   or 

making  false  report. 

29.  Penalty  for  acting  -nithout  license. 

30.  Application  of  sections  22  to  29,  inclu- 

sive. 

LIST   OF    POLICE. 

31.  List  of  police  to  be  sent  to  commis- 

sioner. 


Sect. 


LICENSED    BOXING    MATCHES. 


32.  Unlicensed  boxing  matches  forbidden. 

33.  Licenses  for  boxing  matches. 

34.  Bond. 

35.  Licenses  for  officials. 

36.  Referee  and  judges. 

37.  Physician. 

38.  Number  of  rounds.     Gloves. 

39.  Age  of  participants  or  spectators. 

40.  PajTnent  to  commonwealth. 

41.  Tickets  not  to  be  sold  beyond  capacity 

of  haU. 

42.  Revocation  or  suspension  of  license. 

43.  Licensee  not  to  have  financial  interest 

in  boxer. 

44.  Witnesses  before  the  commission. 

45.  Superior  court  may  enjoin  unlicensed 

match. 

46.  Rules  and  regulations.    Report. 

47.  Distribution    of    money    received    by 

commonwealth. 

48.  Sections  32  to  47,  inclusive,  in  effect  in 

cities  and  towns  which  accept  them. 

49.  Acceptance  by  cities  and  towns. 

50.  Resubmission  of  sections  32  to  47. 

51.  Certain  pro\-isions  of  law  not  applicable 

to  boxing  matches. 


Certain  duties 
of  the  com- 
missioner of 
public  safety. 
18G3,  219, 
§§1.4. 

1871,  394,  §  3. 
1874.405. 
1875,  15,  §  1. 
1877,  214,  §  6. 
1879,  305,  I  3. 
P.  S.  103, 
§§  3,  11. 
1894,  481,  §  57. 
1895,418,  I  6. 
R.  L.  108,  §  2. 


Section  1.    The  commissioner  of  public  safety,  in  this  chapter  called  1 

the  commissioner,  shall  have  charge  of  the  administration  and  enforcement  2 

of  all  laws,  rules  and  regulations  which  it  is  the  duty  of  the  department  of  3 

public  safety,  in  this  chapter  called  the  department,  to  administer  and  4 

enforce,  and  shall,  except  as  is  otherwise  provided,  direct  all  inspections  5 

and  investigations.     He  shall,  subject  to  the  approval  of  the  governor,  6 

make  all  necessary  rules  for  the  government  of  his  department,  for  re-  7 

ports  to  be  made  by  officers  under  him  and  for  the  performance  of  their  8 

duties.     He  shall  make  an  annual  report.        looo,  521,  §  i.         i9ii,6i9.  9 

1912,  726,  §5.  1919,  350.  §§  1.  99,  100.  3  Op.  .\.  G.  492. 


Powers. 
1805,  249,  I  5. 
1866,261,  §  4. 
1871.394, 
§§2,4,7. 
1875,  15,  §  5. 
1879,  305, 
§§  2,  12. 
P.  S.  103,  §  2. 
1888,113. 
1894,  481,  I  1. 
R.  L.  108,  §  7. 
1906,  262. 
1908,  143,  §  1. 
1913,610,  §  1. 
1919,350,  §102, 


Section  2.     The  state  police  shall  have  and  exercise  throughout  the  1 

commonwealth  the  powers  of  constables,  except  as  to  service  of  civil  2 

process,  and  of  police  officers.    The  governor  may  command  their  services  3 

in  suppressing  riots  and  in  preser\'ing  the  peace.    The  commissioner  may  4 

detail  any  officer  or  inspector  in  the  division  of  inspection  or  in  the  di\-i-  5 

sion  of  fire  prevention  for  temporary  service  in  the  division  of  state  police.  6 

The  commissioner,  with  the  appro\'al  of  the  governor,  may  authorize  7 

state  police  officers  to  carry  badges,  revolvers,  clubs,  handcuffs  and  twisters  8 

or  such  other  articles  as  may  be  required  in  the  performance  of  their  duties.  9 

3  Op.  A.  G.  515. 


Penalty  for 
receiving 
rewards,  etc. 
1871,  394, 
§§5.9. 
1S75,  15,  §  6. 
1S77.214,  §  10. 
1S79,  305,  §  6. 
P.  S.  103,  §  0; 
104.  §  24. 
1882,  266,  §  5. 


Section  3.  Any  officer  or  inspector  of  the  department  who  directly 
or  indirectly  receives  a  reward,  gift  or  gratuity  on  account  of  his  official 
services  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars 
or  by  imprisonment  for  not  more  than  three  months,  and  shall  also  be 
discharged  from  office.  Any  officer  or  inspector  who  fails  to  faithfully 
perform  his  duties  shall  be  immediately  discharged  from  office. 

1894,  481,  §  56.  R.  L.  lOS.  §  6.  1919,  350,  §  108.  133  Mass.  233. 


► 


Chap.  147.]  police.  1527 

1  Section  4.     The  commissioner  may,  when  public  exigency  requires,  Commissioner 

2  with  the  approval  of  the  governor,  call  upon  the  metropolitan  district  extra  police 

3  commission  for  assistance  in  performing  the  duties  imposed  upon  him  igw.Tso, 

4  by  law;  and  the  said  commission  shall,  when  so  called  upon,  assign  to  duty     '°'^' 

5  under  said  commissioner  such  of  the  police  force  under  its  control  as  it 

6  and  the  commissioner  shall  determine. 

1  Section  5.     Any  person  affected  by  an  order  of  the  department  or  of  osiers' etc"" 

2  a  division  or  office  thereof,  may,  within  such  time  as  the  commissioner  may  is'^^  sso, 

3  fix,  which  shall  not  be  less  than  ten  days  after  notice  of  such  order,  appeal  Op.^A.  q. 

4  to  the  commissioner,  who  shall  thereupon  grant  a  hearing,  and  after  such  134'  302. ' 

5  hearing  may  amend,  suspend  or  revoke  such  order.    Any  person  aggrieved 

6  by  an  order  approved  by  the  commissioner  may  appeal  to  the  superior 

7  court;  provided,  that  such  appeal  is  taken  within  fifteen  days  from  the 

8  date  when  such  order  is  approved.     The  superior  court  shall  have  juris- 

9  diction  in  equity  upon  such  appeal  to  annul  such  order  if  found  to  exceed 

10  the  authority  of  the  department,  or  upon  petition  of  the  commissioner  to 

11  enforce  all  valid  orders  issued  by  the  department.    Nothing  herein  con- 

12  tained  shall  be  construed  to  deprive  any  person  of  the  right  to  pursue  any 

13  other  lawful  remedy. 

1  Section  6.     The  commissioner  may  after  two  years  destroy  or  other-  Destruction 

2  wise  dispose  of  applications  for  approval  of  entertainments  on  Sunday,  etc°    '^'^''° 

3  inspection   reports   of  theatres  and   halls   under  section  thirty-six  of  ^^^  '  ^*^'    ^' 

4  chapter  one  hundred  and  forty-three,  and  applications  for  permits  for 

5  special  exhibitions  of  pictures  under  section  eighty-two  of  said  chap- 

6  ter.     Any  proceeds  received  from  their  disposal  shall  be  paid  to  the 

7  commonwealth. 

1  Section  7.     Constables,  city  marshals,  chiefs  of  police  and  all  other  Constables, 

2  police  officers  shall,  within  their  respective  cities  and  towns,  aid  the  governor,' 

3  governor  in  the  performance  of  his  duties  whenever  called  upon,  and  any  r86T249,  §  2. 

4  such  officer  who  refuses  so  to  do  when  called  upon  shall  be  punished  by  a  jf^l'l'''' 

5  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not  Jlys'il^sV' 

6  more  than  three  months.  p.  s.  103,  §  12.  r.  l.  los,  §  9. 

1  Section  8.     County  commissioners  may  appoint  as  police  officers  County  poUce. 

2  persons  who  are  in  the  employment  of  the  county,  who  shall,  when  on  powers  and 

3  duty,  wear  in  plain  sight  a  metallic  badge  inscribed  with  the  words  isggTiao, 

4  "County  Police"  and  the  name  of  the  county  for  which  they  are  ap-  r. lTi'os. §  10. 

5  pointed.    Such  officers  may  preserve  order  in  any  court  house  or  in  any  j^°|'  ^**' 

6  room  or  building  used  for  county  business  and  upon  the  adjoining  prem-  i^^  iviass.  280. 

7  ises.    They  may,  without  a  warrant,  arrest  idle,  intoxicated  or  disorderly 

8  persons  \\ho  by  their  presence  or  conduct  obstruct  or  annoy  persons 

9  using  county  buildings  or  premises,  or  who  violate  section  ninety-seven 

10  of  chapter  two  hundred  and  sixty-six,  and  may  take  persons  so  arrested 

11  to  the  nearest  police  station  or  other  place  of  lawful  detention. 

SPECUL  police   officers. 

1  Section  9.    The  governor  may  appoint  two  or  more  agents  of  the  Massachusetts 

2  Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Children  as  the  Prevention 

3  special  state  police  officers  for  a  term  of  three  years,  who  shall  be  subject  chiuren^ 


4  to  removal  by  the  governor,  shall  serve  without  pay  and  shall  have  and 


1903, 333. 


1528 


POLICE. 


[Chap.  147. 


exercise  tlaroughout  the  commonwealth  the  powers  of  state  pohce  officers  5 
to  serve  warrants  and  other  criminal  processes,  except  the  authority  to  6 
arrest  ^^^tholIt  a  warrant.  7 


Massachusetts 
Society  for 
Prevention  of 
Cruelty  to 
Animals. 
1909,302,  §  1. 
1912,384,  §  1. 
1918,  99. 


Section  10.  The  governor  may  appoint,  at  the  request  of  the  Mas- 
sachusetts Society  for  the  Prevention  of  Cruelty  to  Animals,  duly  ac- 
credited agents  of  that  society  as  special  police  officers  to  serve  for  one 
year,  subject  to  removal  by  the  governor.  Such  officers  shall  serve  with- 
out pay,  except  their  regular  compensation  as  agents  of  said  society. 
They  shall  receive  no  fees  for  ser\'ices  or  return  of  any  criminal  process 
and  shall  have  throughout  the  commonwealth  the  powers  of  constables 
and  police  officers  to  arrest  and  detain  any  person  ^^olating  any  law  for 
the  prevention  of  cruelty  to  animals. 


Reserve  police 

force. 

1896.  314, 

§5  1.4. 

R.  L.  108,  §  28. 

213  Mass.  15. 


RESERVE    POLICE    FORCE    IN   CITIES. 

Section  11.     Any  city,  except  Boston,  in  which  the  city  council,  1 

with  the  approval  of  the  mayor,  accepts  this  and  the  two  follo'W'ing  sec-  2 

tions  or  has  accepted  corresponding  pro\asions  of  earlier  laws,  may  estab-  3 

lish  a  reserve  police  force;   and  appointments  thereto  shall,  subject  to  4 

chapter  thirty-one,  be  made  in  the  same  manner  as  appointments  to  the  5 

regular  police  force  of  said  city.  6 


Number  of 
members. 
1896,314,  §  2. 
R.  L.  108,  I  27. 


Section  12.     The  number  of  members  of  such  reserve  force  shall  not  1 

exceed  five  in  cities  in  which  the  number  of  members  of  the  regular  force  2 

does  not  exceed  fifteen.    If  the  number  of  members  of  the  regular  force  3 

exceeds  fifteen,  one  member  may  be  added  to  the  reserve  force  for  every  4 

three  of  the  regular  force  above  fifteen  and  not  above  thirty;   one  for  5 

every  five  of  the  regular  force  above  thirty  and  not  abo^•e  eighty;   and  6 

one  for  every  ten  of  the  regular  force  above  eighty.  7 


Powers,  duties, 
compensation. 
1896,  314,  §3. 
R.  L.  108,  §  28. 


Section  13.     The  mayor,  chief  of  police  or  city  marshal  of  a  city  1 

in  which  such  reserve  force  is  established  may  assign  the  members  thereof  2 

to  duty  in  said  city  whenever  and  for  such  length  of  time  as  said  mayor,  3 

chief  of  police  or  marshal  may  deem  necessary;   and  M'hen  on  duty  the  4 

members  of  said  reserve  force  shall  have  all  the  powers  and  duties  of  5 

members  of  the  regular  police  force  of  said  city.    The  compensation  of  6 

the  members  of  said  reserve  force  shall  be  fixed  by  the  city  council.  7 


Police  in 
cities  and 
towns. 
1908,  476, 
§§1,3. 


DAYS    OFF   FOR   POLICE. 

Section  14.     Members  of  the  police  department  of  every  city,  except  1 

Boston  and  such  cities  as  have  accepted  chapter  two  hundred  and  ten  2 

of  the  acts  of  nineteen  hundred  and  eleven  or  chapter  one  hundred  and  3 

sLxty-six  of  the  acts  of  nineteen  hundred  and  twenty,  and  of  every  town  4 

which  accepted  chapter  four  hundred  and  seventy-six  of  the  acts  of  nine-  5 

teen  hundred  and  eight  and  afterward  did  not  accept  chapter  two  hundred  6 

and  ten  of  the  acts  of  nineteen  hundred  and  eleven  or  chapter  one  hun-  7 

dred  and  sixty-six  of  the  acts  of  nineteen  hundred  and  twenty,  shall  be  8 

excused  from  duty  for  one  day  out  of  every  thirty  without  loss  of  pay.  9 


ilu^lio^^''        Section  15.     Except  in  Boston,  members  of  the  police  department     1 

§§  1. 3.  '         of  every  town  which  accepted  chapter  two  hundred  and  ten  of  the  acts     2 

of  nineteen  hundred  and  eleven  and  did  not  accept  chapter  one  hundred     3 


Chap.  147.]  police.  1529 

4  and  sixty-six  of  the  acts  of  nineteen  hundred  and  twenty  shall  be  excused 

5  from  duty  for  one  day  out  of  every  fifteen  without  loss  of  pay. 

1  Section  16.     Except  in  Boston,  members  of  the  police  department  same  subject. 

2  of  every  town  which  accepted  chapter  one  hundred  and  sixty-six  of  the  §§1, -i,  5.' 

3  acts  of  nineteen  hundred  and  twenty  shall  be  excused  from  duty  for  one 

4  day  out  of  every  eight  without  loss  of  pay. 

1  Section  17.     The  time  and  manner  of  excusing  members  of  police  Same  subject. 

2  departments- from  duty  in  any  town  subject  to  any  of  the  three  preceding  §§  i,'2.   ' 

3  sections  shall  be  determined  by  the  chief,  superintendent  or  other  officer  §§'i''2^^°' 

4  or  board  at  the  head  of  the  police  department.    A  member  so  excused  §5"°' 2.''''' 

5  shall  be  exempt  from  duty  and  from  attendance  at  a  police  station  or 

6  other  place,  but  otherwise  shall  be  subject  to  all  laws,  rules  and  regu- 

7  lations  relating  to  members  of  the  department  to  which  he  belongs.    The 

8  chief,  superintendent  or  other  officer  or  board  at  the  head  of  the  police 

9  department  of  any  such  town  may,  in  case  of  any  public  emergency,  or  of 

10  any  unusual  demand  for  the  services  of  the  police  in  that  town,  prevent 

1 1  any  member  of  the  department  from  taking  the  day  off  at  the  time  when 

12  he  is  entitled  thereto,  or  at  the  time  assigned  therefor,  provided  that  such 

13  day  off  shall  be  granted  to  him  as  soon  thereafter  as  is  practicable.     In  ^^ 

14  no  case  shall  the  number  of  such  days  off  be  less  than  twelve  in  each 

15  year  in  a  town  subject  to  section  fourteen,  or  twenty-four  in  each  year 

16  in  a  town  subject  to  section  fifteen,  or  forty-five  in  each  year  in  a  town 

17  subject  to  section  sixteen,  and  they  shall  be  in  addition  to  any  annual 

18  vacation  now  or  hereafter  allowed  to  members  of  the  said  departments, 

19  and  such  annual  vacation  shall  not  be  diminished  on  account  thereof. 

POLICE  MATRONS. 

1  Section  18.     In  every  city  having  a  population  of  over  thirty  thou-  Police  matrons 

2  sand  inhabitants  as  shown  by  the  latest  census,  state  or  national,  except  i8S7?234,  §  1. 

3  Boston,  the  mayor  shall,  and  in  any  other  city  the  mayor,  and  in  Bos-  ^  ^l!  10s,  §  32. 

4  ton,  the  police  commissioner,  may  designate  one  or  more  police  stations 

5  for  the  detention  and  confinement  of  females  under  arrest,  and  for  the 

6  detention  and  lodging  of  females  not  under  arrest,  within  such  city.    Such 

7  mayor  or  police  commissioner  may  at  any  time  designate  additional  sta- 

8  tions,  or  may  discontinue  any  stations  so  designated ;  but  one  such  sta- 

9  tion  shall  always  remain  so  designated,  except  in  Boston.    The  police 

10  commissioner  of  Boston  and  the  mayor  of  any  other  city  shall  appoint, 

11  as  soon  as  may  be  after  any  station  has  been  so  designated,  one  or  two 

12  police  matrons  to  be  attached  thereto. 

1  Section  19.     A  woman  shall  not  be  appointed  a  police  matron  unless  Tenure  of 

2  she  is  suitable  therefor  and  has  been  recommended  in  writing  by  at  least  dut'ies.^'''^'^' 

3  ten  women  of  good  standing,  residents  of  the  city  where  the  appoint-  }g|g;  \l\\  ^  ^" 

4  ment  is  to  be  made.    A  police  matron  may  be  removed  by  the  mayor  or  ^-  ^- 1°*'  5  33. 

5  police  commissioner,  as  the  case  may  be,  by  written  order  stating  the 

6  cause  of  removal.    Upon  her  death,  resignation  or  removal  her  successor 

7  shall  be  appointed  as  soon  as  may  be.    She  shall  receive  a  reasonable 

8  compensation,  which  shall  be  fixed,  except  in  Boston,  by  the  city  council, 

9  and  in  Boston,  by  the  concurrent  action  of  the  city  council  and  of  the 

10  police  commissioner,  and  shall  be  paid  by  the  city  treasurer  upon  the  req- 

11  uisition  of  the  body  fixing  her  compensation.    If  only  one  police  matron 


1530 


PRIVATE   DETECTIVES. 


[Chap.  147. 


is  attached  to  a  station,  she  shall  reside  within  a  reasonable  distance  12 
thereof  and  shall  be  ready  to  respond  to  a  call  therefrom  at  any  hour  of  13 
the  day  or  night.  If  two  police  matrons  are  attached  to  a  station,  the  14 
hours  during  which  they  shall  respond  to  calls  therefrom,  respectively,  15 
shall  be  so  fixed  by  the  mayor  or  police  commissioner  that  one  of  them  16 
shall  be  ready  to  respond  at  any  hour  of  the  day  and  night,  and  each  such  17 
matron  shall,  during  the  hours  so  fixed  for  her,  remain  within  a  reasonable  18 
distance  of  such  station  and  be  ready  to  respond  to  ajiy  call  therefrom.  19 
One  of  such  matrons  shall  remain  constantly  at  the  police  station  to  20 
which  she  is  attached,  ready  for  service,  so  long  as  any  female  is  detained,  21 
lodged  or  held  under  arrest  therein.  A  police  matron  shall  have  the  entire  22 
care  and  charge  of  all  females  held  under  arrest,  detained  or  lodged  in  23 
the  station  to  which  she  is  attached,  and  she  may  call  upon  the  officer  in  24 
command  of  such  station  for  assistance.  She  shall  be  subject  to  the  25 
authority  of  the  head  of  the  police  department  of  the  city  where  she  26 
serves,  and  to  the  rules  and  regulations,  consistent  with  sections  eighteen  27 
to  twenty,  inclusive,  which  may  be  prescribed  by  such  authority;  but  28 
she  shall  not  be  subject  to  the  control  or  direction  of  any  police  officer  29 
attached  to  a  station  except  the  officer  in  command  thereof  at  the  time.  30 
In  every  station  to  which  a  police  matron  is  attached,  the  mayor  or  police  31 
commissioner  shall,  at  the  expense  of  the  city,  provide  sufficient  and  32 
proper  accommodation  for  females  held  under  arrest,  detained  or  lodged  33 
therein.  34 


Duties  of 
matron. 

1887,  234,  §  4. 

1888,  181. 

K.  L.  108,  §  34. 


Section  20.  If  a  female  is  arrested  and  taken  to  a  police  station  to  1 
which  a  matron  is  attached  or,  if  not  under  arrest,  is  detained  or  lodged  2 
therein,  the  police  officer  there  in  command  shall  cause  the  matron  to  be  3 
summoned  forthwith;  and  if  in  a  city  in  which  a  police  matron  has  been  4 
appointed,  or  in  Boston,  a  female  is  arrested  and  taken  to  a  station  to  5 
which  no  matron  is  attached,  or  is  received  therein  for  the  purpose  of  6 
detention  or  lodging,  such  oflficer  shall  cause  her  to  be  removed  as  soon  7 
as  possible  to  the  nearest  station  to  which  a  matron  is  attached,  or  in  8 
Boston,  to  the  house  of  detention,  and  the  city  treasurer  shall  pay  the  9 
reasonable  expense  of  such  removal  upon  the  requisition  of  the  head  of  10 
the  police  department.  Such  remo\al  of  a  female  shall  not  deprive  any  11 
court  of  any  jurisdiction  which  it  would  otherwise  have  had.  12 


stTt'on!"  Section  21.     The  words  "police  station"  or  "station"  in  the  three     1 

d^fin*^  d°'"         preceding  sections  shall  mean  any  place  in  which  persons  are  temporarily    2 
1887, 234,  §  5.    confined  under  arrest.  R.  l.  los,  §  35.  3 


License 
required. 
1879,  305,  §  7. 
P.  S.  103,  §7. 
1898,  486. 
R.  L.  108,  §  36. 
1919,  271, 
§§  1.  10. 
217  Mass.  294. 


private  detectives. 

Section  22.     No  person  shall  engage  in  the  business  of  or  solicit  busi-  1 

ness  as  a  private  detective,  or  the  business  commonly  transacted  by  a  2 

private  detective,  under  any  name  or  title  whatsoever,  without  first  ob-  3 

taining  a  license  so  to  do  as  provided  in  sections  twenty-three  to  thirtj-,  4 

inclusive.                                        Op.  a.  g.  (iqio)  119.  5 


Reqxiirementa 
for  license, 

1919,  271,  §  2. 


Section  23.     The  said  license  may  be  granted  by  the  commissioner  1 

to  any  reputable  citizen  of  the  United  States,  or  to  any  firm  or  corpora-  2 

tion  making  written  application  therefor.     The  persons  making  the  3 

application  shall  be  not  less  than  twenty-one  years  of  age,  and  shall  4 

have  had  at  least  three  years'  experience  as  investigators.     The  hokler  5 


CH-^P.    147.]  PRIVATE  DETECTIVES.  1531 

6  of  a  license  may  employ  as  many  agents,  operatives  and  assistants  as 

7  may  be  deemed  necessary  by  the  licensee  for  the  conduct  of  the  business. 

1  Section  24.     Application  for  the  license  shall  be  made  on  blank  forms  Application 

2  to  be  furnished  by  the  commissioner.    The  material  facts  stated  in  the  ig'^ig.^ln!  §  3. 

3  application  shall  be  verified  by  the  oath  of  the  applicants,  or,  in  the  case 

4  of  corporations,  by  the  oath  of  the  resident  manager  or  superintendent 

5  to  whom  the  license  may  be  issued.    The  application  shall  contain  the 

6  certificates  of  at  least  three  reputable  citizens  of  the  commonwealth, 

7  residing  in  the  town  where  the  applicant  proposes  in  his  application  to 

8  estabHsh  his  principal  place  of  business,  and  said  certificates  shall  be 

9  received  as  evidence  of  the  good  repute  of  the  applicants,  and  as  evidence 
10  that  the  representations  made  in  the  application  are  true. 

1  Section  25.     The  license  shall  be  granted  for  one  year,  and  shall  contents 

2  state  therein  the  name  and  address  of  the  principal  office  or  place  of  1919,271,  §4. 

3  business  of  the  licensee,  and  the  name  under  which  the  licensed  business 

4  is  to  be  conducted. 

1  Section  26.     For  each  license,  the  licensee,  if  an  individual,  shall  fgig, 2^i°l5. 

2  pay  to  the  commissioner  the  sum  of  one  hundred  dollars  annually,  and,  ^^''  ^^^^-  ^^*- 

3  if  a  partnership  or  corporation,  the  sum  of  two  hundred  dollars  annually, 

4  and  shall  give  to  the  commissioner  a  bond  in  the  sum  of  five  thousand 

5  dollars,  executed  by  the  applicant  as  principal  and  by  a  surety  company 

6  authorized  to  do  business  in  the  commonwealth  as  surety.    The  bond 

7  shall  be  in  such  form  as  the  commissioner  may  prescribe,  conditioned 

8  upon  the  honest  conduct  of  the  business  of  the  licensee,  and  the  right 

9  of  any  person  injured  by  the  wilful,  malicious  or  wrongful  act  of  the 
10  licensee  to  bring  in  his  own  name  an  action  on  the  bond. 

1  Section  27.     A  license  may  be  revoked  at  any  time  by  the  commis-  Revocation. 

2  sioner  for  good  cause  shown;  provided,  that  due  notice  shall  have  been        •  '  ■«  • 

3  given  to  the  licensee  to  appear  before  the  commissioner  to  show  cause 

4  why  the  license  should  not  be  revoked. 

1  Section  28.     Any  person  who  is  or  has  been  an  employee  of  a  licensee  Penalty  for 

2  and  who  divulges  any  information  gained  by  him  in  the  said  employ-  infomatlon  or 

3  ment  except  as  his  employer  may  direct,  or  as  he  may  be  required  by  "port*  ^"'^"^ 

4  law  to  do,  or  who  wilfully  makes  a  false  report  to  his  employer,  shall  be  i9i9.27i,  §  7. 

5  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  imprison- 

6  ment  for  not  more  than  one  year,  or  both. 

1  Section  29.     Any  person  other  than  an  agent,  employee  or  assistant  Penalty  for 

2  of  a  licensee  hereunder,  and  any  corporation  acting  as  a  private  detective  out  license. 

3  without  obtaining  a  license  in  accordance  with  sections  twenty-three  to  p.  s.' 103*,' §  8." 

4  thirty,  inclusive,  shall  be  punished  by  a  fine  of  not  more  than  five  hun-  1919, 271,' 

5  dred  dollars  or  by  imprisonment  for  a  term  not  exceeding  one  jear,  or  *'^®'  ^°- 

6  both;  but  no  corporation  shall  be  liable  to  the  said  penalty  if  its  resident 

7  manager  or  superintendent  is  duly  licensed  under  said  sections. 

1  Section  30.     Sections  twenty-two  to  twenty-nine,  inclusive,  shall  not  ^f^^ll^^l^^ 

2  apply  to  any  detective  or  officer  belonging  to  the  police  force  of  the  221029,  in- 

3  commonwealth,  or  of  any  subdivision  thereof,  while  engaged  in  the  per-  1919, 271.  §  s. 


1532 


LICENSED   BOXING  MATCHES. 


[Ch.'IP.    147. 


formance  of  his  official  duties ;   nor  to  a  charitable,  philanthropic  or  law  4 

enforcement  society  or  association  duly  incorporated  under  the  laws  of  5 

the  commonwealth,  nor  to  any  agent  thereof  while  engaged  in  the  dis-  6 

charge  of  his  duties  as  such  agent,  provided  the  society  or  organiza-  7 

tion  is  promoted  and  maintained  for  the  public  good  and  not  for  private  8 

profit;  nor  to  any  person  employed  by  any  person  as  an  investigator  in  9 

connection  with  the  business  of  such  employer,  and  whose  services  are  10 

not  let  out  to  another  for  profit  or  gain;  nor  to  any  regularly  estabhshed  11 

credit  reporting  or  mercantile  agency.  12 


List  of  police 
to  be  sent  to 
commissioner. 
1892,  290. 
R.  L.  108, 
§38. 
1916,241.  §  1. 


LIST   OF  POLICE. 

Section  31.     The  clerk  of  each  town  in  which  a  chief  of  police  or  city  1 

marshal  is  appointed  shall,  witliin  one  week  after  such  appointment,  2 

notify  the  commissioner  of  the  name  of  the  person  so  appointed;   and  3 

the  clerk  of  each  town  not  having  a  chief  of  police  shall  annually,  on  4 

October  first,  send  to  the  commissioner  the  names  of  all  the  police  officers  5 

and  constables  in  such  town.    If  he  neglects  or  refuses  so  to  do,  he  shall  6 

be  punished  by  a  fine  of  fifty  dollars.  7 


Unlicensed 
boxing  matciies 
forbidden. 
1920,  C19,  §  3. 

Op.  A.  c;. 

(1920)  300. 


LICENSED   BOXING    MATCHES. 

Section  32.  No  boxing  or  sparring  match  or  exhibition  for  a  prize  1 
or  a  purse,  or  at  wliich  an  admission  fee  is  charged,  either  directly  or  in-  2 
directly,  in  the  form  of  dues  or  otherwise,  shall  take  place  or  be  conducted  3 
in  this  commonwealth  except  in  pursuance  of  a  license  granted  as  herein-  4 
after  provided  by  the  state  boxing  commission,  in  sections  thirty-two  5 
to  forty-seven,  inclusive,  called  the  commission.  In  no  case  shall  any  6 
boxing  or  sparring  match  or  exliibition  occur  on  Sunday.  Applications  7 
for  the  license  shall  be  accompanied  by  such  fee,  not  less  than  twenty-five  8 
nor  more  than  eight  hundred  dollars,  as  the  commission  may  establish  9 
on  the  basis  of  the  population  of  the  city  or  town  in  which  the  match  or  10 
exliibition  is  to  be  held.  Any  persons  holding,  conducting,  participating  11 
in  or  attending  a  match  or  exhibition  held  without  a  license,  as  provided  12 
in  the  following  section,  shall  be  punished  by  a  fine  not  exceeding  one  13 
hundred  dollars  or  by  imprisonment  for  a  term  not  exceeding  three  14 
months,  or  both.  In  the  case  of  exhibitions  or  bouts  held  in  accordance  15 
with  the  rules  and  regulations  of  such  amateur  organizations  as  may  be  16 
approved  by  the  commission,  the  commission  may  issue  special  licenses  17 
without  the  requirement  of  a  bond  as  provided  in  section  thirty-four  or  IS 
of  payment  of  the  annual  fee.  19 


Licenses  SECTION  33.     The  commission  may,  subject  to  the  provisions  of  sec-  1 

matches.  tious  thJrty-two  to  forty-scvcu,  inclusive,  issue  licenses  to  conduct  boxing  2 

'  ^  '         or  sparring  matches  and  exhibitions,  which  shall  expire  on  December  3 

thirty-first  of  the  year  of  issue.  4 


Bond. 

1920,  619,  §  5. 


Section  34.     No  license  as  aforesaid  shall  be  granted  unless  the  1 

licensee  has  executed  and  filed  with  the  commission  a  bond  in  a  penal  2 

sum  of  five  thousand  dollars,  with  such  surety  or  sureties  as  shall  be  3 

satisfactory  to  the  commission,  running  to  the  commission,  conditioned  4 

upon  the  payment  to  the  commonwealth  of  the  sums  mentioned  in  section  5 

forty,  and  upon  faithful  compliance  by  the  licensee  with  the  provisions  G 

of  sections  tliirty-two  to  forty-seven,  inclusi^■e,  the  rules  and  regulations  7 


Ch.\P.    147.]  LICENSED   BOXING   MATCHES.  1533 

8  of  the  commission,  and  with  such  other  laws  of  the  commonwealth  as 

9  may  be  applicable  to  anj'thing  done  by  the  licensee  in  pursuance  of  the 

10  license.     The  bond  shall  also  pro\ide  for  a  forfeiture  to  the  common- 

11  wealth,  recoverable  at  the  suit  of  the  attorney  general,  of  such  sum,  not 

12  exceeding  one  thousand  dollars,  as  may  be  stipulated  in  the  bond  for 

13  each  case  of  non-compliance. 

1  Section  35.     No  person  shall  act,  except  at  a  purely  amateur  match  Licenses  for 

2  or  exhibition,  directly  or  indirectly,  as  physician,  referee,  judge,  time-  1^20^619,  §  6. 

3  keeper,  professional  boxer  or  as  manager,  trainer  or  second  of  such  a 

4  boxer,  at  a  boxing  or  sparring  match  or  exhibition  unless  hcensed  by  the 

5  commission  upon  receipt  of  such  classified  fee,  not  exceeding  twenty- 

6  five  dollars,  as  the  commission  may  fix.    For  the  purposes  of  sections 

7  thirty-two  to  forty-seven,  inclusive,  a  professional  boxer  is  one  who 

8  competes  for  a  money  prize  or  teaches  or  pursues  or  assists  in  the  practice 

9  of  boxing  as  a  means  of  obtaining  a  livelihood  or  pecuniary  gain.    Phy- 

10  sicians  who  desire  to  officiate  without  charge  at  amatem*  boxing  or 

11  sparring  matches  or  exhibitions  shall  be  licensed  without  charge. 

1  Section  36.     At  every  boxing  or  sparring  match  or  exhibition  there  Referee  and 

2  shall  be  in  attendance  a  referee,  duly  licensed  under  the  provisions  of  i92o?^6i9,  §  7. 

3  sections  thirty-two  to  forty-seven,  inclusive,  who  shall  direct  and  control 

4  the  same.    The  referee  shall  have  fidl  power  to  stop  the  match  whenever 

5  he  deems  it  advisable  because  of  the  physical  condition  of  the  contestants 

6  or  one  of  them,  or  when  one  of  the  contestants  is  clearly  outclassed  by 

7  liis  opponent,  or  for  other  sufficient  reason.    The  referee  shall  have  power 

8  in  liis  discretion  to  declare  forfeited  any  prize,  remuneration  or  purse  or 

9  any  part  thereof  belonging  to  the  contestants  or  one  of  them  if,  in  his 

10  judgment,  such  contestant  or  contestants  are  not  or  were  not  competing 

11  in  good  faith.    There  shall  also  be  in  attendance  two  duly  licensed  judges 

12  who  shall,  at  the  termination  of  every  such  boxing  or  sparring  match  or 

13  exhibition,  render  their  decision.    If  they  are  unable  to  agree,  the  decision 

14  shall  be  rendered  by  the  referee.    The  fees  of  the  referee  and  other  licensed 

15  officials  shall  be  fixed  by  said  commission,  and  shall  be  paid  by  the 

16  licensed  organization  prior  to  the  exhibition. 

1  Section  37.     At  any  boxing  or  sparring  match  or  exhibition  there  physician. 

2  shall  be  in  attendance  a  duly  licensed  physician,  whose  duty  it  shall  be  '^'°'  *'^®'  ^  *• 

3  to  observe  the  physical  condition  of  the  boxers  and  advise  the  referee  or 

4  judges  with  regard  thereto.    Any  competent  physician  who  has  had  not 

5  less  than  three  years'  experience  as  a  medical  practitioner  may  be  hcensed. 

6  No  boxer  shall  be  permitted  to  enter  the  ring  unless,  not  more  than 

7  three  hours  before,  a  physician  licensed  under  the  pro\'isions  of  sec- 

8  tions  thirty-two  to  forty-seven,  inclusive,  shall  certify  in  writing  that 

9  the  boxer  is  physically  fit  to  engage  in  the  proposed  contest.     The  phy- 

10  sician's  fee,  as  fixed  by  the  commission,  shall  be  paid  by  the  licensee 

11  conducting  the  match  or  exliibition. 

1  Section  38.     Boxing  or  starring  matches  or  exhibitions  shall  not  Number 

2  exceed  ten  rounds  in  length,  and  no  roimd  shall  exceed  three  minutes.  Gloves. 

3  The  contestants  shall  wear  during  the  contest  gloves  weighing  at  least 

4  six  ounces  each.    No  contestant  shall  participate  in  more  than  ten  such 

5  rounds  during  any  period  of  twenty-four  hours. 


1534 


LICENSED  BOXING   MATCHES. 


[CiLU'.    147. 


Section  39.     No  contestant  under  eighteen  shall  be  permitted  to  en-     1 


Age  of 
participants 

i92of  e^fg^'^io  S^S^  ^^  ^^^  boxing  or  sparring  match  or  exliibition.  No  person  under  2 
sixteen  shall  be  admitted  to  or  be  present  at  any  boxing  or  sparring  3 
match  or  exhibition.  .  4 


Payment 
to  common- 
wealth. 
1920,  619,  § 


11. 


Section  40.  Every  licensee  holding  or  conducting  any  such  boxing  1 
or  sparring  match  or  exhibition  shall,  witliin  se^'enty-t\vo  hours  after  its  2 
conclusion,  pay  to  the  state  treasurer  a  sum  equal  to  five  per  cent  of  the  3 
total  gross  receipts  from  the  sale  of  tickets  or  from  admission  fees;  pro-  4 
vided,  that  if  such  match  or  exhibition  is  conducted  as  an  incidental  5 
feature  in  an  event  or  entertainment  of  a  different  character,  such  portion  6 
of  the  total  receipts  shall  be  paid  to  the  commonwealth  as  the  commis-  7 
sion  may  determine  or  as  may  be  fixed  by  rule  adopted  under  section  8 
forty-six.  Witliin  said  time  the  licensee  shall  furnish  to  the  commission  9 
a  report,  duly  verified  by  the  treasurer  and  secretary,  showing  the  exact  10 
number  of  tickets  sold  and  admission  fees  collected  for  the  contest,  and  11 
the  gross  receipts  thereof,  and  such  other  data  as  the  commission  may  12 
require.  13 


Tickets  not 

to  be  sold 

beyond 

capacity  of 

haU. 

1920.  619,  5  12. 


Section  41.  No  licensee  under  section  tliirty-three  shall  sell  or  cause 
to  be  sold  or  issued  more  tickets  or  invitations  purporting  to  admit  to 
any  such  match  or  exhibition,  or  otherwise  admit  to  the  same,  more 
persons  than  are  admissible  according  to  the  authorized  capacity  of 
the  building,  or  part  thereof  actually  used  therefor. 


o/siSpeM?on         Section  42.     Any  license  may  be  revoked  or  suspended  by  the  com-  1 

i92oT6i9, 1 13.  mission  for  a  violation  of  any  provision  of  sections  thirty-two  to  forty-  2 

seven,  inclusive,  or  of  any  other  law  of  the  commonwealth  or  of  any  rule  3 

or  regulation  adopted  by  the  commission  or  whenever  the  licensee  has,  4 

in  the  judgment  of  the  commission,  been  guilty  of  any  act  or  offence  5 

detrimental  to  the  public  interest.  6 


Licensee 
not  to  have 
financial 
interest  in 
boxer. 
1920,  619,  § 


Section  43.     No    licensee    under    section    thirty-three    shall    have,  1 

directly  or  indirectly,  any  financial  interest  in  a  boxer  competing  on  2 

premises  owned  or  leased  by  the  licensee,  or  in  which  the  licensee  is  3 

otherwise  interested.    No  contestant  in  such  a  match  or  exhibition  shall  4 

be  paid  for  services  before  the  same  are  rendered,  and  should  it  be  de-  5 

termined  by  the  judges  and  referee  that  a  contestant  did  not  give  an  6 

honest  exhibition  of  his  skill,  his  services  shall  not  be  remunerated.  7 


^1°^%  Section  44.     The    commission   shall   have   the    same   authority   to 

igloTerg!'!  i6.  summon  and  require  the  attendance  and  testimony  of  witnesses  as  to 
all  matters  within  its  jurisdiction  as  is  conferred  upon  city  councils 
by  section  eight  of  chapter  two  hundred  and  thirty-tliree,  and  sec- 
tions nine,  ten  and  eleven  of  said  chapter  shall  apply  to  witnesses  so 
summoned. 


1 
2 
3 
4 
5 
6 


may'enjoin"^        SECTION  45.    The  supcHor  court  shall  ha\'e  jurisdiction  in  equity 

uijicensed        upon  any  information  filed  by  the  commission,  the  attorney  general,  the 

1920,  619,  §  17.  district  attorney  for  the  district,  the  police  authorities  of  the  city  or 

town  where  the  boxing  or  sparring  match  or  exliibition  is  held  or  is 

announced  to  be  held,  or  by  any  five  legal  voters  of  the  commonwealth 

stating  that  a  certain  building,  tenement  or  place  is  used  for  boxing 


Chap.  147.]  licensed  boxing  matches.  1535 

7  or  sparring  matches  or  exhibitions  by  an  individual,  group,  partner- 

8  ship,  club,  corporation  or  association  not  Hcensed  under  section  thirty- 

9  three,  or  contrary  to  any  provision  of  sections  tliirty-two  to  forty-seven, 

10  inclusive,  or  that  a  boxing  or  sparring  match  or  exhibition  is  being  ad- 

11  vertised  or  announced,  or  has  been  advertised  or  announced,  to  take 

12  place  in  a  certain  building  or  place,  or  that  a  certain  individual,  club, 

13  corporation  or  association  is  selling,  exchanging  or  giving  away  tickets, 

14  tokens  or  symbols  purporting  to  entitle  the  holder  to  the  right  or  privi- 

15  lege  of  attending  a  certain  boxing  or  spai-ring  match  or  exliibition  not 

16  licensed  by  the  commission  and  contrary  to  the  provisions  of  sections 

17  thirty-two  to  forty-seven,  inclusive,  to  enjoin  and  abate  the  same  as  a 

18  common  nuisance. 

1  Section  46.    The  commissioner,  in  consultation  with  the  other  mem-  Rules  and 

2  bers  of  the  commission,  may  make  such  rules  and  regulations  for  the  Rfport'°°^' 

3  administration  and  enforcement  of  sections  thirty-two  to  forty-seven,  ^^'°'  '''^'  ^  ^*' 

4  inclusive,  as  he  may  deem  necessary,  subject  to  the  approval  of  the  gov- 

5  ernor  and  council.     Such  rules  and  regulations  may  provide  for  and 

6  regulate  the  granting  of  a  special  permit  for  exliibitions  where  no  de- 

7  cision  is  to  be  rendered  and  where  a  skilled  boxer  or  boxers  merely  dem- 

8  onstrate  the  science  of  boxing.    The  commissioner  shall  make  an  annual 

9  report  to  the  general  court  on  or  before  the  first  Wednesday  in  January 

10  of  the  acts  of  the  commission,  together  with  any  recommendations  for 

11  legislation  which  he  may  deem  desirable. 

1  Section  47.     The  remainder  of  the  sums  received  under  section  forty,  Distribution 

2  after  paying  the  expense  to  the  commonwealth  of  administering  sections  ceiveTby  com- 

3  thirty-two  to  forty-seven,  inclusive,  shall,  annually  on  or  before  Novem-  "SreiQ.'^i  i9. 

4  ber  first,  be  distributed  by  the  state  treasurer  to  the  several  towns  in  n^ooi'sob 

5  proportion  to  the  amounts  collected  from  licensees  acting  therein  under 

6  said  sections. 

1  Section  48.    Sections  tliirty-two  to  forty-seven,  inclusive,  shall  be  sections  32 

2  in  force  in  any  city  or  town  which  accepts  said  sections  in  the  manner  si'vtjin°effcct 

3  provided  in  the  following  section  or  has  accepted  corresponding  pro-  towns^wh"c1i 

4  visions  of  earlier  laws  in  the  manner  provided  therein  and  has  not  on  jSn^eig'^T^o 

5  a  resubmission  under  section  fifty  voted  against  said  sections. 

1  Section  49.     Sections  thirty-two  to  forty-seven,  inclusive,  shall  take  Acceptance 

2  effect  in  a  city  if  accepted  by  the  voters  at  a  city  election;  provided,  towns'^'' """^ 

3  that  a  petition  signed  by  not  less  than  ten  per  cent  of  the  registered  '^"°'  ^*^'  ^ ""' 

4  voters  is  filed  with  the  city  clerk  not  less  than  thirty  days  before  the 

5  election.     Said  sections  shall  take  effect  in  a  town  on  their  acceptance 

6  by  the  voters  at  an  annual  or  special  town  meeting,  the  question  having 

7  been  submitted  upon  a  like  petition;  and  the  selectmen  shall  upon  a  like 

8  petition  call  a  special  town  meeting  for  the  purpose  of  voting  upon  such 

9  acceptance. 

1  Section  50.     In  any  city  or  town  in  which  the  provisions  of  sections  Resubmission 

2  thirty-two  to  forty-seven,  inclusive,  are  in  force,  said  sections  shall  again  32To''4'7.™ 

3  be  submitted  to  the  voters  at  any  municipal  election;  provided,  that  a  ^^^°'  ''''*•  ^  ^'' 

4  petition  to  that  effect  signed  by  not  less  than  ten  per  cent  of  the  voters 

5  is  filed  with  the  city  or  town  clerk  not  less  than  thirty  days  before  the 


1536 


FraE   PREVENTION. 


[CH.4P.    148. 


election.  If  upon  such  resubmission  the  voters  vote  against  said  sec-  6 
tions,  they  shall  cease  to  have  effect  in  that  city  or  town  until  reaccepted  7 
by  the  voters  as  provided  in  the  preceding  section.  8 


Certain  pro- 
visions of  law 


_  Section  51.     Sections  nine  to  twelve,  inclusive,  of  chapter  two  hun- 

to°bo?fi''^'''^'°  '^^^^  ^^'^  sixty-five  and  section  twenty-eight  of  chapter  one  hundred  and 
eighty  shall  not  apply  to  any  boxing  or  sparring  match  or  exhibition  li- 
censed under  section  tliirty-tliree  and  conducted  under  and  in  accord- 
ance with  sections  thirty-two  to  forty-seven,  inclusive,  and  the  rules 
and  regulations  issued  under  section  forty-six. 


matches. 
1920,  619,  §  22. 


REFERENCES. 

State  police  may  visit  pawnbrokers,  Chap.  140,  §  73. 
May  examine  books  of  persons  making  collateral  loans.  Id.,  §  87. 
Must  carrj'  out  directions  of  super\-isor  of  loan  agencies.  Id.,  §  112. 
Powers  of  state  police  in  reference  to  explosives  and  inflammable  compounds, 
Chap.  148. 

Powers  of  state  poUce  in  reference  to  buildings,  Chap.  143. 

Powers  in  relation  to  cinematographs,  Id.,  |§  72-85. 

Powers  as  to  inspection  of  public  buildings  as  to  drains,  etc..  Chap.  143,  §  42. 

Powers  as  to  theatres.  Id.,  §  36  et  seq. 

Licensing  exhibition  on  Sunday,  Chap.  136,  §  4. 

Pensions  for  state  poUce,  Chap.  32,  §  6S. 

Composition  of  state  bo-xing  commission.  Chap.  22,  §  12. 


CHAPTER     148 

FIRE   PREVENTION. 


Sect. 


DEFINITIONS. 


1.  Definitions. 

APPLICATION    OF    CERTAIN    SECTIONS. 

2.  Application  of  certain  sections. 

INVESTIGATION    OF    FIRES. 

3.  Duties  of  certain  officials. 

4.  Duties  of  marshal. 

5.  Powers  of  inspectors. 

6.  Removal  of  combustible  materials. 

7.  Penalty. 

8.  Report  of  fires. 

9.  Report  to  insurance  companies,  etc. 

EXPLOSn'ES. 

10.  Rules  for  explosives. 

11.  Rules  and  regulations. 

12.  Appropriation  for  expert  assistance  and 

for  a  laboratory. 

13.  Manufacture    of     fireworks    and    fire- 

crackers. 

14.  License  for  storing,  etc.,  explosives. 

15.  Inflammable  fluids  in  motor  vehicles. 

16.  Penalty. 

17.  Penalty. 

18.  Powers  of  courts. 


Sect. 

19.  Officials  designated  by  marshal  to  grant 

permits. 

20.  Inspectors  of  petroleum. 

21.  Oils  must  be  inspected. 

22.  Ordinances,   etc.,   as   to   inspection    of 

oils. 

23.  Penalty. 

24.  Blasting  bond. 

25.  -Action  on  bond. 

26.  Power  of  courts. 

27.  Damages  for  illegal  use,  etc.,  of  explo- 


metropolitan  fire  prevention  district. 

28.  District. 

29.  Apportionment  of  salaries  and  expenses. 

30.  Powers  of  marshal. 

31.  Delegation  of  powers. 

32.  Paint  or  inflammable  fluids. 

33.  Combustible  materials. 

34.  Removal  of  combustible  refuse. 

35.  Use  of  salamanders. 

36.  Automatic  sprinklers. 

37.  Dry  pipes  in  basements. 

38.  Penalty. 

39.  Rules  as  to  fires  and  fire  protection. 

40.  Rules,  application.     Hearing,  notice. 

4 1 .  Orders  to  occupant  or  owner. 


Ch-ip.  148.] 


FIRE   PREVENTION. 


1537 


Sect. 

42.  Investigation  and  report  by  heads  of 

fire  departments. 

43.  Penalty. 

44.  Entering  buildings. 

45.  Appeals. 

46.  Investigation  of  fires. 

47.  Reports  by  insurance  companies. 

48.  Record  of  fires. 

49.  Study  of  methods  of  fire  prevention. 

50.  Report  of  commissioner. 

51.  Penalty. 

GENERAL    PBOVISIOSS. 

52.  Possession  of  bombs  and  explosives. 

53.  Notice  of  seizure. 

54.  Tanks  for  storage  of  fluid. 


Sect. 

55.  Rules  and  regulations. 

56.  Explosive  golf  balls. 

57.  Blank    cartridges,     toy     pistols,     fire- 

works, etc. 

58.  Explosive  stove  polish. 

59.  Penalty. 

60.  Dangerous  illuminating  oils,  etc. 

61.  Same  subject. 

02.  Penalty  for  selling  naphtha  under  de- 
ceptive name. 

63.  Search  warrant  for  explosives  illegally 

kept. 

64.  Forfeiture  of  explosives  illegally  kept. 

65.  Matches. 

66.  Fire  balloons. 


DEFINITIONS. 

1  Section  1.    In  this  chapter  the  following  words,  unless  a  different  Definitions. 

2  meaning  is  required  by  the  context  or  is  specifically  prescribed,  shall  have  '^^*'  ''°^' 

3  the  following  meanings: 

4  "Commissioner",  the  commissioner  of  public  safety. 

5  "Department",  the  department  of  public  safety. 

6  "Division",  the  division  of  fire  prevention  of  the  department  of  public 

7  safety. 

8  "Inspector",  an  inspector  of  the  division  of  fire  prevention  of  the 

9  department  of  public  safety. 

10  "Marshal",  the  state  fire  marshal. 

11  "Metropolitan  district",    the  metropoHtan    fire   prevention  district 

12  described  in  section  twenty-eight. 


application  of  certain  sections. 

1  Section  2.    Sections  six,  ten  and  tliirteen  to  twenty-three,  inclusive,  Application 

2  shall  not  apply  to  the  metropolitan  district.    Sections  twenty-eight  to  sectiOTs'." 

3  fifty-one,  inclusive,  shall  apply  only  to  the  said  district.  1920]  436, 1 1^' 


investigation  of  fires. 

1  Section  3.    The  marshal  in  Boston,  the  board  of  fire  engineers  in  Duties  of 

2  cities  and  in  towns  in  which  such  a  board  is  established,  whether  the  or-  officlafs. 

3  ganized  fire  district  includes  within  its  limits  the  whole  territory  of  the  \lll[  4ft;  |  f 

4  town  or  not,  and  the  selectmen  in  towns  in  which  no  fire  district  is  }|g|'  |q|'  ^  ^■ 

5  organized  and  no  board  of  fire  engineers  is  established,  shall  investigate  ?n„o'?42^^' 

6  the  cause  and  circumstances  of  every  fire  in  such  city  or  town  by  which  §§  T.'f 

7  property  has  been  destroyed  or  damaged,  especially  to  ascertain  whether  1904!  4.33!  1 1. 

8  it  was  caused  by  carelessness  or  design.    They  shall  begin  such  investi-  If^^ou^iV. 

9  gations  within  two  daj-s,  excluding  Sunday,  after  such  fire,  and  the  marshal  '^'^  ^°'^^'  ^'^^' 

10  may,  in  his  discretion,  supervise  and  direct  the  same.    The  board  making 

11  investigations  of  fires  may  notify  the  said  marshal,  and  shall  within  one 

12  week  after  the  fire  file  with  him  a  written  statement  of  all  the  facts  relative 

13  to  the  cause  and  origin  of  the  fire,  tlie  kind,  value  and  ownership  of  the 

14  property  destroyed,  and  such  information  as  he  may  require.    He  shall 

15  keep  in  his  office  a  record  of  all  fires  occurring  in  the  commonwealth,  with 

16  the  results  of  said  investigation.     Such  record  shall  be  open  to  public 


1538 


FIRE   PREVENTION. 


[Chap.  148. 


Duties  of 

marshal. 

18S6.  354,  § 

1894,  444, 

«3,4. 

R.  L.  32,  §  : 

1902,  142, 
§§  1.2. 

1903,  365,  5 

1904,  433,  § 
1919,  350, 

§  101. 

2  0p.  A.G. 


inspection,  and  copies  of  such  portions  as  the  commissioner  of  insurance  17 
requires  shall  be  forwarded  to  him  before  January  fifteenth.  18 

Section  4.  The  marshal  shall  investigate  or  cause  to  be  investigated  1 
the  cause  and  circumstances  of  all  fires  of  which  he  has  notice,  as  provided  2 
in  the  preceding  section,  by  which  property  has  been  damaged  or  de-  3 
stroyed,  especially  to  ascertain  whether  the  fire  was  caused  by  carelessness  4 
or  design.  For  these  purposes  the  marshal  or  some  person  designated  5 
by  the  commissioner  may  summon  and  examine  on  oath  any  person  sup-  6 
posed  to  know  or  have  means  of  knowing  any  material  facts  toucliing  7 
the  subject  of  investigation.  Such  witnesses  may  be  kept  apart  and  8 
examined  separately,  and  such  examination  shall  be  reduced  to  writing,  9 
and  false  swearing  therein  shall  be  deemed  perjury  and  be  punishable  as  10 
such.  Any  justice  of  the  municipal  court  of  the  city  of  Boston  or  of  the  1 1 
superior  court,  upon  application  of  the  marshal  or  some  person  designated  12 
by  the  commissioner,  may  compel  the  attendance  of  such  witnesses  and  13 
the  giving  of  such  testimony  before  him  in  the  same  manner  and  to  the  14 
same  extent  as  before  said  court.  If  upon  such  investigation  he  believes  15 
that  the  evidence  is  sufficient  to  charge  any  person  with  crime  in  causing  16 
the  fire,  he  shall  make  a  complaint  therefor,  and  shall  furnish  the  proper  17 
officers  with  the  e\adence  and  names  of  witnesses  obtained  by  him.  He  18 
shall,  when  required,  report  to  the  commissioner  of  insurance  his  pro-  19 
ceedings  and  the  progress  in  prosecutions  for  causing  fires  and  the  results  20 
thereof.  21 


Powers  of 
inspectors. 
1894,  444,  §  4. 
R.  L.  32.  §  4. 
1902, 142, 
§1  1.2. 
1903,  365,  §  1. 
1905,  433,  §  1. 
1919,  350, 
§  104. 

Removal  of 
combustible 
materials. 
1894,  444,  §  5. 
R.  L.  32,  §  6. 

1902,  142, 
§§  1.2. 

1903,  365,  §  1. 

1904,  433,  I  1. 

1919,  350, 
§  104. 

1920,  436. 
lOp.  A.  G.  211 


Section  5.    Any  inspector  may,  in  the  performance  of  the  duties  1 

imposed  by  this  chapter,  at  reasonable  hours  enter  upon  and  examine  any  2 

building  or  premises  where  any  fire  has  occurred,  or  other  buildings  or  3 

premises  adjoining  or  near  the  same,  with  the  consent  of  the  occupant  4 

thereof.  5 

Section  6.  In  cities  and  towns  which  accept  this  section  or  have  1 
accepted  corresponding  provisions  of  earlier  laws,  the  marshal,  or  any  2 
person  designated  by  liim,  the  cliiefs  of  fire  departments  in  cities,  and  3 
the  chief  engineer,  or  the  chairman  of  the  board  of  selectmen  in  towns  4 
having  no  engineer,  may,  and  upon  complaint  of  a  person  having  an  in-  5 
terest  in  any  building  or  premises  or  property  adjacent  thereto,  shall,  6 
at  all  reasonable  hoius,  enter  into  buildings  and  upon  premises  Mitliin  7 
their  jurisdiction  and  make  an  investigation  as  to  the  existence  of  con-  8 
ditions  likely  to  cause  fire.  They  shall  in  M-riting  order  such  conditions,  9 
if  existing,  to  be  remedied,  and  whenever  such  officers  or  persons  find  in  10 
any  building  or  upon  any  premises  any  accumulation  of  combustible  11 
rubbish,  including  waste  paper,  rags,  cardboard,  string,  packing  material,  12 
sawdust,  shavings,  sticks,  waste  leather  or  rubber,  broken  boxes  or  bar-  13 
rels  or  other  refuse  that  is  or  may  become  dangerous  as  a  fire  menace  to  14 
such  buildings  or  premises,  they  shall  in  \ATiting  order  the  same  to  be  15 
removed  or  such  conditions  to  be  remedied.  The  owner  or  occupant  of  16 
any  such  building  or  premises  may,  witliin  twenty-four  hours  after  notice  17 
of  such  an  order  from  any  person  other  than  the  marshal,  apply  to  the  18 
marshal,  by  whom  the  matter  shall  forthwith  be  investigated.  Unless  he  19 
revokes  the  order,  it  shall  remain  in  force  and  be  at  once  obeyed  by  said  20 
owner  or  occupant,  who,  if  he  refuses  or  neglects  to  comply  therewith,  21 
shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  fifty  dol-  22 
lars  for  each  day  during  which  such  neglect  or  refusal  continues.  23 


Chap.  148.]  fire  pre\'ention.  1539 

1  Section  7.     Any  city  or  town  officer  named  in  section  three  who  Penalty. 

2  neglects  or  refuses  to  comply  with  any  requirement  of  the  preceding  ism!  444!  §  6. 

3  sections  shall  be  punished  by  a  fine  of  not  less  than  twenty-five  nor  more  ^'  ^'  ^"'  ^  ®' 

4  than  two  hundred  dollars. 

1  Section  8.     The  marshal  shall  submit  annually,  before  February  fif-  f^^"^*-"^ 

2  teenth,  a  detailed  report  of  all  official  action  in  relation  to  fires  to  the  JUf'H^'^"- 

3  commissioner  of  insurance,  who  shall  embody  the  material  portions  thereof  §§s.'9. 

4  in  his  annual  report.  R.  L.32.  §  s.  1902, 142,  §§  1, 2. 

1903,  365,  §  1.  1904,  433,  §  1,  1919.  350,  §  101. 


1  Section  9.     The  marshal   may  report  to  insurance  companies,   to  Report  to 

2  owners  of  property,  or  to  other  persons  interested  in  the  subject  matter  pTniS^e'tc™™ 

3  of  an  investigation  of  the  cause  and  circumstances  of  a  fire  any  informa-  i9io,328,  §  i. 

4  tion  obtained  by  such  investigation  which  may  in  his  opinion  require 

5  attention  from  or  by  such  insurance  companies,  owners  of  propertj'  or 

6  other  persons. 

explosives. 

1  Section  10.    The  department  may  make  rules  and  regulations  for  the  Rules  for 

2  keeping,  storage,   use,  manufacture,  sale,   handlirjg,   transportation  or  isTiTeiyb. 

3  other  disposition  of  gunpowder,  dynamite,  crude  petroleum  or  any  of  §§"'1/^' 

4  its  products,  or  explosive  or  inflammable  fluids  or  compounds,  tablets,  p%*'fo2, 

5  torpedoes  or  any  explosives  of  a  like  nature,  or  any  other  explosives,  and  |§  f^'jof  ^^' 

6  may  prescribe  the  materials  and  construction  of  buildings  to  be  used  §§  s^.  ss,'  94. 

7  for  any  of  the  said  purposes,  except  that  cities  and  towns  may  by  ordi-  1964. 370, 

8  nances  or  by-laws  prohibit  the  sale  or  use  of  fireworks  or  firecrackers  1905, 2so,  §  1. 

9  within  the  city  or  town,  or  may  limit  the  time  within  which  firecrackers  iliO'li^^^sss, 
10  and  torpedoes  may  be  used. 

107  Mass.  188.  189  Mass.  377.  Penalty,  5  IG. 

155  Mass.  531.  217  Mass.  1S5. 

1  Section  11.     The  marshal  shall  submit  to  the  commissioner  rules  and  ^"'"".^  ?"<* 

,       .  ,  .    .  „  .  ,      ,  .  .  regulations. 

2  regulations  to  carrj'  out  the  provisions  of  sections  ten  and  thirty-nine,  1919.350. 

3  which  shall  take  efi'ect  subject  to  section  thirty-seven  of  chapter  tliirty 

4  when  approved  by  the  commissioner  and  by  the  governor  and  council, 

5  and  on  such  dates  as  they  may  fix. 

1  Section  12.     The  marshal  may  expend  the  amount  annually  appro-  Appropriation 

2  priated  for  maintaining  a  laboratory  for  the  division  and  the  employ-  assistance 

3  ment  of  expert  assistance  to  aid  in  the  enforcement  of  the  laws  relative  fablratory. 

4  to  explosives  and  inflammable  fluids  and  compounds. 

1914,421,5  1.  1915,220.  1916,  65,  §  1.  1918,  275,  §  4. 

1  Section  13.     No  building  shall  be  used  for  the  manufacture  of  fire-  Manufacture 

2  works  or  firecrackers  without  a  license  from  the  aldermen  or  selectmen  and'fire^?'^  "^ 

3  and  a  permit  from  the  marshal.  i9io,  565,  §  2.  Penalty,  §  le.  crackers. 

1  Section  14.     No  building  or  other  structure  shall,  except  as  pro\'ided  License  for 

SLonnti   etc 

2  in  section  thirteen  or  fifteen,  be  used  for  the  keeping,  storage,  manu-  explosives. 

.  .  .  1866   285    §  2 

3  facture  or  sale  of  any  of  the  articles  named  in  section  ten  unless  the  iseg!  152]  §  e! 

4  aldermen  or  selectmen  shall  have  granted  a  license  therefor  for  one  year  rIi,;  io2!§ii4'. 

5  from  the  date  thereof,  after  a  public  hearing,  fourteen  days'  public  notice  \IqI\  Isq;  |  ?; 
G  of  which  shall  have  been  given  at  the  expense  of  the  applicant,  and  unless  \l°^'_  IS5;  | }; 


1540 


FIRE    PREVENTION. 


[CiLVP.    148. 


1913,452,  §  1. 
1916,  162. 
168  Mass.  388. 
185  Mass.  64. 
190  Mass.  280. 
217  Mass.  185. 

3  Op.  A.  G.  52. 

4  Op.  A.  G.  405, 
426. 

Op.  A.  G.  (1920) 
134,  148. 

Penalty,  §  16. 


a  permit  shall  have  been  jjranted  therefor  by  the  marshal  or  by  some  of-  7 
ficial  designated  by  liim  for  that  purpose;  provided,  that  any  building  or  8 
other  structure  once  used  under  a  license  and  permit  granted  as  afore-  9 
said,  or  any  building  or  other  structure  lawfully  used  for  any  of  said  piu--  10 
poses,  may  be  continued  in  such  use  from  year  to  year  if  the  owner  or  11 
occupant  thereof  shall  annually,  while  such  use  continues,  file  for  regis-  12 
tration  with  the  clerk  of  the  city  or  town  where  such  building  or  other  13 
structure  is  situated,  and  with  the  marshal  or  the  official  designated  14 
by  him  to  grant  permits  in  such  city  or  town,  a  certificate  reciting  such  15 
use  and  occupancy.  The  department  may  by  regulation  prescribe  the  16 
amount  of  explosives,  crude  petroleum  or  any  of  its  products,  or  of  any  17 
other  inflammable  fluid  or  compound  that  may  be  kept  for  private  use  18 
in  a  building  or  other  structure  without  a  license,  permit  or  registration,  19 
or  any  of  them.  20 

The  right  to  use  a  building  or  other  structure  for  any  of  said  purposes  21 
may  be  revoked  for  cause,  after  notice  and  a  hearing  given  to  such  owner  22 
or  occupant,  by  the  aldermen  or  selectmen  having  authority  to  grant  23 
licenses  for  such  use,  or  by  the  marshal.  A  fee  of  one  dollar  may  be  24 
charged  for  the  license  and  a  like  sum  for  the  permit  herein  provided  2.5 
for,  and  one  half  of  said  sum  for  the  registration  of  the  said  certificate.  26 
Such  building  or  structure  shall  always  be  subject  to  such  alterations  27 
in  construction  and  to  such  regulations  of  its  use  in  respect  to  protection  28 
against  fire  or  explosion  as  the  department  may  prescribe.  29 


Inflammable 
fluids  in 
motor  vehicles. 
1911,477,  §  I. 
4  Op.  A.  G.  397. 


Section  15.  Gasoline  or  any  other  volatile  inflammable  fluid  which 
emits  a  ^'apor  at  a  temperature  below  one  hundred  degrees  Fahrenheit 
when  tested  in  the  open  air  shall,  when  in  any  motor  vehicle  which  is  in 
a  building  or  other  structure,  be  deemed  to  be  kept  in  such  building  or 
other  structure  within  the  meaning  of  the  preceding  section;  provided, 
that  this  section  shall  not  apply  to  any  building  in  existence  on  July 
first,  nineteen  hundred  and  eleven,  in  which  not  more  than  two  auto- 
mobiles or  motor  vehicles  are  kept,  if  such  building  or  part  thereof  is 
not  used  either  for  human  habitation  or  for  holding  gatherings  of  more 
than  twenty  persons,  or  for  giving  entertainments,  instruction  or  employ- 
ment to  more  than  that  number. 


1 
2 

3 
4 
5 
6 


9 
10 
11 


Penalty. 

1904,  370,  §  4. 

1905,  2,80,  §  3. 
1910,  565, 

§S  2.  5. 


Section  16.  Whoever  keeps,  stores,  uses,  manufactures,  sells,  handles 
or  otherwise  disposes  of  any  of  the  articles  mentioned  in  section  ten,  in 
violation  of  section  thirteen  or  fourteen  or  of  any  regulation,  ordinance 
or  by-law  made  under  section  ten,  or  whoever  violates  any  regulation 
made  imder  section  fourteen,  shall,  except  as  provided  in  section  seven- 
teen, be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by 
imprisonment  for  not  more  than  one  month,  or  both. 


Penalty. 
1871,6",  §  4. 
1877,216,  §  6. 
P.  S.  102,  §  64. 
R.  L.  102. 
§  101. 
1910,  588, 
§11.4. 


Section  17.     Whoever  knowingly  violates  or  knowingly  causes  or  per-  1 

mits  the  violation  of  any  regulation  atlopted  and  prescribed  for  the  trans-  2 

portation  of  gunpowder  and  other  explosives  or  explosive  or  inflammable  3 

fluids  or  compounds  shall  be  punished  by  a  fine  of  not  more  than  one  4 

thousand  dollars  or  by  imprisonment  for  not  more  than  one  j'ear,  or  both.  5 


Powers  of 
courts. 

1S94,  399,  §  5. 
R.  L.  102, 
§  117. 


Section  18.  The  supreme  judicial  or  superior  court  may  restrain  1 
the  erection,  occupation  or  use  of  a  building  in  violation  of  section  four-  2 
teen,  or  of  any  regulation  made  thereunder.  3 


Chap.  148.]  FraE  prevention.  1541 

1  Section  19.    The  marshal  may  designate  some  officer  of  any  city  or  officials 

2  town  who,  when  so  designated,  may  grant,  in  accordance  with  rules  and  ufarfhai  to  ^ 

3  regulations  estabhslied  by  the  department,  the  permits  required  by  sec-  fgo"' Iso" §"1; 

4  tions  thirteen  and  fourteen  or  by  the  regulations  made  under  section  four-  5m°'§^4^'  ^ "' 

5  teen.    Such  officer  shall  grant  such  permits  and  keep  a  record  of  them. 

6  A  fee  of  fifty  cents  may  be  charged  for  any  permit  except  as  provided  in 

7  section  fourteen.     The  marshal  may  revoke  any  permit  under  section 

8  thirteen,  and  such  a  permit  may  be  revoked  for  cause  by  any  officer  who 

9  granted  it. 

1  Section  20.     The  mayor  of  a  city,  the  selectmen  of  a  town  of  more  inspectors  of 

2  than  fifteen  hundred  inliabitants,  and,  upon  the  wTitten  application  of  i86o°262l' 

3  five  or  more  citizens  of  a  town  of  less  than  fifteen  hundred  inhabitants,  fleV.lse, 

4  the  selectmen  thereof,  shall  annually  appoint  one  or  more  inspectors  of  11,4',  ^'52,  §  1. 

5  petroleum,  who,  before  entering  upon  their  official  duties,  shall  be  sworn,  P-  |-  ^^^^^  ''■ 

6  and  who  shall  not  be  interested  in  the  sale  of  crude  petroleum  or  in  the  |g'°^ ■,„. 

7  sale  or  manufacture  of  petroleum  or  earth  rock  oil  or  any  of  their  products,  iis  Mass'.  548. 

8  Their  compensation  shall  be  fixed  in  cities  by  the  aldermen  and  in  towns 

9  by  the  selectmen  and  shall  be  paid  by  persons  who  require  their  services. 

1  Section  21.     No  person  shall  sell  or  keep  for  sale,  at  wholesale  or  retail,  °ap eXa*'"' 

2  for  illuminating  purposes,  any  kerosene,  refined  petroleum  or  any  product  j||;J'  ^p.  §  s. 

3  of  petroleum,  unless  it  has  been  inspected  and  approved  by  any  inspector  §  n;'  345,  §  2. 

4  authorized  in  the  commonwealth.  p.  s.  s9,  §  7.  18S2, 250. 

1885.  122.  §1.  R.  L.  102,  §  110.  1911,204.5  2.  Penalty,  §  23. 

1  Section  22.     Cities  and  towns  may  adopt  ordinances,  by-laws  and  ^/J^'^as^tr' 

2  regulations,  consistent  with  law,  relative  to  the  inspection  of  the  oils  jJ^^P^g''"" 

3  named  in  the  preceding  section  which  have  not  been  inspected  and  1882,250. 

4  approved  by  an  inspector.       1885,122,51.        r.  l.io2,§iii.       1911,204,53. 

1  Section  23.     \Vhoe\-er  violates  section  twenty-one  or  any  provision  of  f8"6'*2ii2  « 3 

2  an  ordinance,  by-law  or  regulation  adopted  under  section  twenty-two,  J?'f'j\^-' 

3  or,  being  an  inspector  appointed  under  section  twenty,  is  guilty  of  fraud,  345,'§  2.' 

4  deceit  or  culpable  negligence  in  the  performance  of  his  duties,  shall  be  1882, 250. 

5  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  r.  l!  102,' 

6  ment  for  not  more  than  one  month,  or  both.  ^  ^^^' 

1  Section  24.     Before  the  issue  of  a  permit  to  use  an  explosive  in  the  Blasting  bond. 

2  blasting  of  rock  or  any  other  sub.stance  as  prescribed  by  the  department,  1914',  ils!  1 1. 

3  the  applicant  for  the  permit  shall  file  with  the  clerk  of  the  citj'  or  town 

4  where  the  blasting  is  to  be  done  a  bond  running  to  the  city  or  town,  with 

5  sureties  appro\'ed  by  the  treasurer  thereof,  for  such  penal  sum,  not  exceed- 

6  ing  ten  thousand  dollars,  as  the  marshal  or  the  officer  granting  the  permit 

7  shall  determine  to  be  necessary  in  order  to  cover  the  risk  of  damage  that 
S  might  ensue  from  the  blasting;  pro\-idcd,  that  the  marshal  or  the  officer 
9  granting  the  permit  may  determine  that  a  single  and  blanket  bond  in 

10  a  penal  sum  not  exceeding  fifteen  thousand  dollars  is  sufficient  to  cover 

1 1  tiie  risk  of  damage  from  all  bla.sting  operations  of  the  applicant,  either 

12  under  the  permit  so  issued  or  under  future  permits  to  use  explosives  in 
lo  blasting  operations.    The  bond  shall  be  conditioned  upon  the  payment 

14  of  any  loss,  damage  or  injury  resulting  to  persons  or  property  by  reason 

15  of  the  use  or  keeping  of  said  ex-plosive. 


1542 


FIRE    PREVENTION. 


[Chap.  148. 


Action  on 

bond. 

1911,  325,  I  2. 


Section  25.     Action  on  a  bond  filed  under  the  preceding  section  may  1 

be  brought  by  any  persons  to  whom  loss,  damage  or  injury  has  resulted  2 

by  reason  of  the  use  or  keeping  of  said  explosive,  and  shall  be  brought  in  3 

the  names  of  and  for  the  use  and  at  the  cost  and  expense  of  such  persons;  4 

but  in  no  event  shall  action  be  brought  on  the  bond  for  personal  injury  5 

of  an  employee  of  the  person  receiving  the  permit.    If  claims  on  any  bond  6 

are  established  to  an  amount  greater  than  the  penal  sum  thereof,  such  7 

claims  shall  be  paid  pro  rata  to  the  amount  of  the  penal  sum,  and  execu-  8 

tions  shall  issue  accordingly.  9 


Power  of 

courts. 

1899, 

242. 

R.  L. 

102, 

§95. 

1904, 

370, 

§  1. 

1905, 

280, 

§  1. 

1914, 

795, 

§3. 

1916, 

138. 

Damages  for 

illegal  use, 

etc.,  1 

of  ex- 

plosives. 

1877, 

210. 

§  10. 

P.  S. 

102, 

§  06. 

R.  L. 

102, 

5  103 

1904, 

370, 

§  1. 

Section  26.  The  superior  court  shall  have  jurisdiction  in  equity, 
upon  the  petition  of  the  commonwealth  or  of  a  city  or  town,  to  enforce 
the  laws  of  the  commonwealth  and  the  regulations  of  the  department 
relative  to  the  blasting  of  rock,  stone  or  other  substance  with  any 
explosive. 

Section  27.  Whoe^•e^  suffers  injury  by  the  explosion  of  an  explosive 
which  is  being  kept  or  transported  contrary  to  the  provisions  of  this 
chapter  or  of  the  regulations  of  the  department  may  recover  damages 
therefor  in  tort  against  the  persons  who  so  violate  said  provisions  or 
regulations. 

1905,  280,  §  1.  1914,  795,  §  3.  1910,  138.  189  Mass.  377. 


District. 
1914,  795, 
§§  1,  26. 
4  Op.  A.  G.  32 


METROPOLITAN   FIRE   PREVENTION   DISTRICT. 

Section  28.  The  metropolitan  district  shall  include  the  following  1 
cities  and  towns  and  the  territory  comprised  in  them,  to  wit:  Arlington,  2 
Belmont,  Boston,  Brookline,  Cambridge,  Chelsea,  Everett,  Lynn,  3 
Maiden,  Medford,  IMelrose,  INIilton,  Newton,  Quincy,  Revere,  Saugus,  4 
Somerville,  Waltham,  Watertown,  Winchester,  Winthrop  and  Woburn,  5 
and  all  other  cities  and  towns  Mhich  accept  sections  twenty-eight  to  6 
fifty-one,  inclusive,  or  ha\'e  accepted  corresponding  provisions  of  earlier  7 
laws  by  a  two  thirds  vote  of  the  city  council  or  by  the  town  at  a  town  8 
meeting.  The  words  "heads  of  fire  departments",  as  used  in  sec-  9 
tions  thirty-one  to  fifty-one,  inclusive,  shall  mean  the  fire  commis-  10 
sioner  or  board  of  fire  commissioners  in  those  cities  in  the  metropolitan  1 1 
district  that  have  such  an  officer  or  officers,  the  commissioner  of  public  12 
safety  in  Cambridge,  the  chief  executive  officer  of  the  fire  department  13 
of  each  of  the  other  cities  and  towns  within  the  metropolitan  district,  14 
and  the  chief  executive  officer  of  the  fire  department  of  any  fire  district  15 
in  any  one  or  more  of  said  cities  or  towns.  AH  the  provisions  of  sections  16 
twenty-eight  to  fifty-one,  inclusive,  shall  apply  to  such  fire  districts.  17 


Apportionment 
of  salaries  and 
expenses. 
1914,  795,  §  25. 
1920,  111. 


Section  29.  Such  portion  of  tlie  salaries  of  the  marshal  and  of  all 
persons  appointed  or  employed  under  him,  of  the  rent  and  office  expenses, 
and  other  proper  expenses  and  charges  incurred  by  him  in  the  discharge 
of  his  duties  as  are  properly  charged  against  the  metropolitan  district 
shall  be  apportioned  annually  by  the  state  treasurer  among  the  cities 
and  towns  in  the  metropolitan  district,  one  half  in  proportion  to  their 
last  annual  taxable  valuation  and  one  half  in  proportion  to  the  popula- 
tion as  determined  by  the  next  preceding  federal  or  state  census.  The 
amount  so  apportioned  shall  be  added  to  their  proportion  of  the  state 
tax. 


1 
2 
3 

4 
5 

6 
7 
8 
9 
10 


ClL-VP.    148.]  FIKE  PREVENTION.  1543 

1  Section  30.    The  marshal  shall  have  within  the  metropolitan  dis-  Powers  of 

2  trict  the  powers  given  by  sections  ten,  thirteen,  fourteen,  twenty,  twenty-  ist?,  tie,  §  ii. 

3  one  and  twenty-two  to  license  persons  or  premises,  or  to  grant  permits  r.l.\o2,^  ^^' 

4  for,  or  to  inspect  or  regulate,  the  keeping,  storage,  use,  manufacture,  sale,  ig\^  795 

5  handling,  transportation  or  other  disposition  of  gunpowder,  dynamite,  f^ig^j3s 

6  nitroglycerine,  camphine  or  any  similar  fluids  or  compounds,  crude  pe-  isisi  sp.  101, 

7  troleum  or  any  of  its  products,  or  any  explosive  or  inflammable  fluids  op'  a.  g. 

8  or  compounds,  tablets,  torpedoes,  rockets,  toy  pistols,  fireworks,  fire-  op.^'.tf.' 

9  crackers,  or  any  other  explosives,  and  the  use  of  engines  and  furnaces  *^®^°'  ^°"' 

10  as  described  in  section  one  himdred  and  fifteen  of  chapter  one  hundred 

11  and  forty;   provided,  that  the  city  council  of  a  city  or  the  selectmen 

12  of  a  town  may  disapprove  the  granting  of  such  a  license  or  permit,  and 

13  upon  such  disapproval  the  permit  or  license  shall  be  refused.     In  Boston 

14  certificates  of  renewal  of  licenses  as  provided  in  section  fourteen  shall 

15  be  filed  annually  for  registration  with  the  fire  commissioner,  accom- 

16  panied  by  a  fee  of  one  dollar. 

1  Section  31.    The  marshal  may  delegate  the  granting  and  issuing  of  ^^'^'^^^'j."" 

2  any  licenses  or  permits  authorized  by  sections  thirty  to  fifty-one,  inclusive,  isi*.  795,'  §  4. 

3  or  the  carrying  out  of  any  lawful  rule,  order  or  regulation  of  the  depart-  (1920)'  302. 

4  ment,  or  any  inspection  reciuired  under  said  sections,  to  the  head  of  the 

5  fire  department  or  to  any  other  designated  officer  in  any  city  or  town  in 

6  the  metropolitan  district. 

1  Section  32.    No  paint,  oil,  benzine,  naphtha  or  other  inflammable  Paint  or  in- 

2  fluid  shall  be  kept  or  stored  in  bulk  or  barrel  otherwise  than  in  the  tank  a^T.^  " 

3  of  an  automobile,  motor  boat  or  stationary  engine,  in  total  quantity  1  op!  a' G.^397. 

4  exceeding  ten  gallons,  in  any  part  of  an_y  building  used  for  habitation,  or  p^^^],    «  51 

5  \\'ithin  fifty  feet  of  any  building  used  for  dwelling  purposes,  unless  such 

6  paint,  oil  or  other  inflammable  fluid  is  enclosed  within  a  fireproof  room 

7  or  structure,  constructed  and  arranged  to  the  satisfaction  of  the  marshal; 

8  and  no  paint,  oil,  benzine,  naphtha  or  other  inflammable  fluid,  except 

9  for  domestic  purposes,  shall  be  kept,  used,  stored  or  sold  in  any  part 

10  of  any  building  used  for  habitation  unless  a  permit  therefor  has  first 

11  been  obtained  from  the  marshal  under  such  terms  and  conditions  as  he 

12  may  prescribe. 

1  Section  33.    No  part  of  any  building  used  for  habitation,  nor  that  Combustible 

2  part  of  any  lot  within  fifty  feet  of  any  building  so  used,  shall  be  used  for  i9u,  795',  §  7. 

3  the  storage,  keeping  or  handling  of  any  combustible  article  for  other  than  Penalty,  §  51. 

4  domestic  purposes,  or  of  any  article  or  material  that  may  be  dangerous 

5  to  the  public  safety  as  a  fire  menace,  unless  a  permit  has  first  been  ob- 

6  tained  therefor  from  the  marshal.    No  part  of  any  such  building  shall 

7  be  used  as  a  carpenter's  shop,  nor  for  the  storage,  keeping  or  handling 

8  of  feed,  hay,  straw,  excelsior,  shavings,  sawdust,  cotton,  paper  stock, 

9  feathers  or  rags,  except  under  such  terms  and  conditions  as  the  marshal 
10  may  prescribe. 

1  Section  34.    The  marshal  or  such  person  as  he  may  designate  may  Removal  of 

2  require  the  removal  and  destruction  of  any  heap  or  collection  of  refuse  or  refuse!^ ' 

3  debris  that  in  his  opinion  may  become  dangerous  as  a  fire  menace.  ^^"'  '^^'    ^' 

4  Neglect  on  the  part  of  either  the  owner  or  occupant,  or  both,  to  remove  Po^^'ty'  5  si. 

5  the  cause  of  complaint  under  this  or  the  preceding  section,  after  notice 


1544 


FIRE   PREVENTION. 


[Chap.  148. 


thereof  has  been  served,  shall  be  deemed  a  refusal;  and  the  marshal  or  6 
the  person  whom  he  may  designate  may  enter  upon  the  premises  and  7 
remove  such  material  or  article  and  the  containers  thereof  as  may  be  8 
covered  by  or  mentioned  in  the  notice  issued.  The  material  or  articles  9 
removed,  if  of  no  substantial  value,  shall  be  destroyed;  otherwise  they  10 
shall  be  placed  in  storage,  and  the  total  costs  attending  such  action  shall  1 1 
be  paid  by  the  owner  or  occupant.  12 


Use  of 

salamanders. 
1914,  795,  §  9. 

Penalty,  §  51. 


Section  35.     No  salamander  or  stove  for  drying  plaster  shall  be  used  1 

in  any  building  except  under  such  conditions  as  may  be  prescribed  by  the  2 

marshal;  and  no  such  salamander  or  stove  shall  be  set  upon  a  wooden  3 

floor  unless  it  is  raised  above  the  floor  at  least  four  inches  and  set  upon  4 

brick  or  other  incombustible  material  in  a  bed  of  sand  at  least  two  inches  5 

thick,  spread  upon  the  floor  and  covering  an  area  of  at  least  two  feet  in  6 

all  directions  larger  than  the  area  of  the  salamander  or  stove.  7 


Penalty,  §  51. 


fprinkiere"  SECTION  36.     Any  building  used  in  whole  or  in  part  for  the  business     1 

Iod'a^gVs^'  °^  woodworking,  or  for  the  business  of  manufacturing  or  working  upon  2 
wooden,  basket,  rattan  or  cane  goods  or  articles,  or  tow,  shavings,  excel-  3 
sior,  oakum,  rope,  twine,  string,  thread,  bagging,  paper,  paper  stock,  4 
cardboard,  rags,  cotton  or  linen,  or  cotton  or  linen  garments  or  goods,  5 
or  rubber,  feathers,  paint,  grease,  soap,  oil,  varnish,  petroleum,  gasoline,  6 
kerosene,  benzine,  naphtha  or  other  inflammable  fluids,  and  any  build-  7 
ing  used  in  whole  or  in  part  for  the  business  of  keeping  or  storing  any  such  8 
goods  or  articles,  except  in  such  small  quantities  as  are  usual  for  domestic  9 
use  or  for  use  in  connection  with  and  as  incident  to  some  business  other  10 
than  such  keeping  or  storing,  shall,  upon  the  order  of  the  marshal,  be  11 
equipped  with  automatic  sprinklers;  provided,  that  no  such  order  shall  12 
apply  to  any  building  unless  four  or  more  persons  live  or  are  usually  13 
employed  therein  above  the  second  floor.  14 


P^^P'Pf^'"'  Section  37.     The  basements  of  any  buildings  shall,  upon  written  no-     1 

1914, 795,  §  11.  tice  by  the  marshal  to  the  owners  of  the  buildings,  be  equipped  with    2 
Penalty,  1 51.    such  dry  pipes  with  outside  connections  as  he  may  prescribe.  3 


Penalty. 
1914,  795, 


Section  38.     Owners  of  buildings  who,  within  six  months  after  having  1 

received  wTitten  notice  from  the  marshal  under   section   thirty-six  or  2 

thirty-seven,  fail  to  comply  with  the  requirement  of  such  notice  shall  be  3 

punished  by  a  fine  of  not  more  than  one  thousand  dollars.  4 


Rules  as  to 
fires  and  tire 
protection. 
1914,  795,  §  1.3. 
4  Op.  A.  G.  5S0. 
Op.  A.  G. 
(1920)  124. 


Section  39.  In  addition  to  the  powers  given  by  sections  thirty  to  1 
thirty-eight,  inclusive,  the  marshal  may  make  orders  and  rules  relating  2 
to  fires,  fire  protection  and  fire  hazard  binding  throughout  the  metropoli-  3 
tan  district,  or  part  thereof,  or  binding  upon  any  person  or  class  of  persons  4 
within  said  district,  limited,  however,  to  the  following  subjects:  5 

A.  Requiring  the  keeping  of  portable  fire  extinguishers,  buckets  of  6 
water  or  other  portable  fire  extinguishing  devices  on  any  premises  by  the  7 
occupant  thereof,  and  prescribing  the  number  and  situation  of  such  8 
devices.  9 

B.  Prohibiting  or  regulating  the  accumulation  and  requiring  the  10 
removal  of  combustible  rubbish,  including  waste  paper,  cardboard,  11 
string,  packing  material,  sawdust,  shavings,  sticks,  rags,  waste  leather  12 


Chap.  148.]  fire  prevention.  1545 

13  and  rubber,  boxes,  barrels,  broken  furniture  and  other  similar  light  or 

14  combustible  refuse. 

15  C.     Prohibiting  or  regulating  the  setting  or  burning  of  fires  out  of 

16  doors. 

17  D.     Causing  obstacles  that  may  interfere  with  the  means  of  exit  to  be 

18  removed  from  floors,  halls,  stairways  and  fire  escapes. 

19  E.     Ordering  the  remedying  of  any  condition  found  to  exist  in  or  about 

20  any  building  or  other  premises  or  any  ship  or  vessel  in  violation  of  any 

21  law,  ordinance,  by-law,  rule  or  order  in  respect  to  fires  and  the  prevention 

22  of  fire. 

23  F.     Causing  any  vessel  moored  to  or  anchored  near  any  dock  or  pier 

24  to  be  removed  and  secured  in  some  designated  place,  if  such  vessel  is  on 

25  fire  or  in  danger  of  catching  fire,  or  is  by  reason  of  its  condition  or  the 

26  nature  of  its  cargo  a  menace  to  shipping  or  other  property. 

27  G.     Requiring  and  regulating  fire  drills  in  theatres,  public  places  of 

28  amusement  and  public  and  private  schools. 

29  H.     Requiring  the  cleaning  of  chimney  flues  and  vent  pipes. 

30  I.     Requiring  proper  safeguards  to  be  placed  and  maintained  about 

31  or  over  roof  skylights. 

32  J.     Prohibiting  or  regulating  smoking  in  factories,  workshops  and 

33  mercantile  establishments. 

34  K.     Requiring  that  all  signs  and  advertising  devices  erected  on  build- 

35  ings  shall  be  approved  by  said  marshal. 

36  L.     Causing  to  be  made  public  all  violations  of  fire  prevention  laws  by 

37  posting  placards  on  buildings  or  premises,  and  by  publishing  in  the  daily 

38  newspapers  the  names  of  the  owners  and  specifying  the  buildings  in 

39  which  the  violation  occurs. 

40  M.     Defining  the  classes  of  buildings  to  be  equipped  with  sprinkler 

41  protection  as  provided  by  section  thirty-six. 

1  Section  40.     The  marshal  may  provide  that  any  rule  shall  apply  Rules.  appU- 

2  generally  throughout  the  metropolitan  district  or  to  any  specified  part  Hea'ring, 

3  thereof  or  to  any  class  or  description  of  premises.    No  such  rules  shall  °°"'='=- 

4  be  established  until  after  a  public  hearing,  of  which  notice  shall  have 

5  been  given  by  publication  for  at  least  two  successive  weeks  in  at  least  two 

6  daily  newspapers  published  in  Boston  and  in  two  newspapers  published 

7  in  the  metropolitan  district  outside  of  Boston. 


1  Section  41.     If  buildings  or  other  premises  are  owned  by  one  person  Orders  to 

2  and  occupied  by  another  under  lease  or  otherwise,  the  orders  of  the  owne'r^"*""^ 

3  marshal  shall  apply  to  the  occupant  alone,  except  where  the  rules  or  4  op.  a^  G.V72. 

4  orders  require  the  making  of  additions  to  or  changes  in  the  premises 

5  themselves,  such  as  would  immediately  become  real  estate  and  be  the 

6  property  of  the  owner  of  the  premises.    In  such  cases  the  rules  or  orders 

7  shall  aft'ect  the  owner  and  not  the  occupant;  and  unless  it  is  otherwise 

8  agreed  between  the  owner  and  the  occupant,  the  occupant  whose  use  of 

9  the  premises  has  caused  the  making  of  such  additions  or  changes,  in 

10  addition  to  his  rent  or  other  payments,  shall,  after  the  additions  or 

11  changes  are  made,  pay  a  reasonable  per  cent  of  the  cost  thereof  annually 

12  to  the  owner  of  the  premises.    No  rule  or  order  shall  be  made  or  en- 

13  forced  which  requires  an  expenditure  by  the  owner  or  occupant  of  more 

14  than  five  per  cent  of  the  last  annual  assessed  valuation  of  the  land  and 

15  buildings  to  which  such  rule  or  order  relates. 


1546 


FIRE    PREVENTION. 


[Chap.  148. 


Investigation 
and  report  by 
heads  of  fire 
departments. 
1914,  795,  §  15. 


Penaltv. 
1914,  795,  §  16. 


Entering 
buildings. 
1914,  795, §  17 


Appeals. 
1914.  795,  §  18. 
Op.  A.  G. 
(1920)  45, 
134,  302. 


Section  42.  The  marshal  may  require  and  order  the  heads  of  fire 
departments  to  investigate,  observe  and  report  to  him  all  matters  re- 
lating to  fire  hazard  and  fire  prevention  that  he  may  designate,  especially 
all  violations  occurring  within  their  respective  cities  or  towns  of  laws, 
or  of  ordinances,  by-laws,  rules  or  orders  made  by  the  various  cities  and 
towns,  or  by  the  marshal,  relating  to  fires,  fire  hazard  and  fire  protection. 


Section  43.  If  any  city  or  town,  or  any  head  of  a  fire  department,  or 
any  officer,  servant  or  agent  of  the  commonwealth  or  of  any  city  or  town 
refuses  or  unreasonably  neglects  to  obey  any  lawful  rule,  order  or  regu- 
lation of  the  marshal,  such  city  or  town,  upon  information  presented  by 
him,  shall  be  liable  to  a  fine  of  not  more  than  one  thousand  dollars,  and 
such  head  of  a  fire  department  or  other  person  shall  be  punished  by  a 
fine  of  not  more  than  fifty  dollars,  and  tlie  rule  or  order  may,  upon  ap- 
plication of  the  marshal,  be  enforced  by  the  supreme  judicial  or  superior  8 
court  by  'UTit  of  mandamus  or  otherwise.  Violation  or  unreasonable  9 
neglect  of  such  rules  or  orders  by  any  person  other  than  as  aforesaid  10 
shall  be  punished  by  a  fine  of  not  more  than  ten  dollars  for  each  day  11 
during  which  such  violation  continues  after  notice  to  the  person  violating  12 
such  rule  or  order.  Such  notice  may  be  gi^-en  by  personal  service  or  by  1.3 
posting  the  same  in  a  conspicuous  place  on  the  premises  affected  thereby.  14 

Section  44.     The  marshal  or  any  person  designated  by  him  may  1 

enter  at  any  reasonable  hour  any  building  or  other  premises  or  any  ship  2 

or  vessel  to  make  inspection,  or  to  enforce  any  law,  ordinance  or  by-  3 

law  or  any  rule  or  order  of  the  marshal,  without  being  guilty  of  trespass;  4 

provided,  that  there  is  reason  to  suspect  the  existence  of  circumstances  5 

dangerous  to  the  public  safety  as  a  fire  menace.  6 

Section  45.     The  marshal  shall  hear  and  determine  all  appeals  from  1 

the  acts  and  decisions  of  the  heads  of  fire  departments  and  other  per-  2 

sons  acting  or  purporting  to  act  under  his  authority,  done  or  made  or  3 

purporting  to  be  done  or  made  under  the  provisions  of  sections  thirty  4 

to  fifty-one,  inclusive,  and  shall  make  all  necessary  and  proper  orders  5 

thereon.    Any  person  aggrieved  by  any  such  action  of  the  head  of  a  fire  6 

department  or  other  person  may  appeal  to  the  marshal.  7 


Investigation 

of  fires. 

1914,  795,  §  19. 


Section  46.  Heads  of  fire  departments  within  the  metropolitan  dis-  1 
trict  shall  investigate  or  cause  to  be  investigated  the  cause,  origin  and  2 
circumstances  of  every  fire  occurring  in  their  respective  cities,  towns  or  3 
fire  districts  by  which  property  has  been  destroyed  or  damaged,  and,  so  4 
far  as  possible,  determine  whether  the  fire  was  the  result  of  carelessness  5 
or  design.  Such  investigation  shall  be  begun  immediately  upon  the  occur-  6 
rence  of  the  fire  by  the  head  of  the  department  in  whose  territory  the  fire  7 
occurred,  or  by  some  person  designated  by  him;  and  if  after  making  such  8 
investigation  it  appears  to  the  head  of  the  department  that  the  fire  is  of  9 
suspicious  origin,  he  shall  immediately  notify  the  marshal  of  the  fact.  10 
Every  fire  occurring  in  the  metropolitan  district  shall  be  reported  in  11 
writing  to  the  marshal  within  three  days  after  the  occurrence  of  the  same  12 
by  the  officer  in  whose  jurisdiction  the  fire  occurred.  Such  report  shall  13 
be  in  the  form  prescribed  by  the  marshal  and  shall  contain  a  statement  14 
of  all  facts  relating  to  the  cause  and  origin  of  the  fire  that  can  be  ascer-  15 
tained,  the  extent  of  damage  thereof,  the  insurance  upon  the  property  16 
damaged,  and  such  other  information  as  may  be  required.  17 


Chap.  148.]  fire  prevention.  1547 


1  Section  47.     The  marshal  may  require  every  fire  insurance  company  Reports  by 

2  authorized  to  transact  business  in  the  metropolitan  district  to  report  to  compan'ies. 

3  him,  through  the  secretary  or  some  other  officer  of  the  company  designated  ^®^^'  ^®*'  ^ '"' 

4  by  the  board  of  directors,  all  fire  losses  on  property  insured  in  such  com- 

5  pany,  giving  the  date  and  location  of  the  fire.    Such  report  shall  be  mailed 

6  to  the  marshal  within  three  days  after  loss  on  each  fire,  and  the  char- 

7  acter  of  property  destroyed  or  damaged  and  the  supposed  cause  of  the 

8  fire  shall  be  reported  within  ten  days  after  adjustment  is  made. 

1  Section  48.     The  marshal  shall  keep  in  his  office  a  record  of  all  fires  Record  of 

2  occurring  in  the  metropolitan  district  and  of  all  the  facts  concerning  iqu_  795, 5  21. 

3  the  same,  including  statistics  as  to  the  extent  of  such  fires  and  the  damage 

4  caused  thereby  and  whether  such  losses  were  covered  by  insurance,  and, 

5  if  so,  in  what  amount.    The  record  shall  be  made  daily  from  the  reports 

6  made  by  the  heads  of  fire  departments  and  shall  be  public. 

1  Section  49.     The  marshal  shall  study  fire  hazard  and  fire  prevention  study  of 

2  and  all  matters  relating  thereto,  hear  suggestions  and  complaints  from  "re'p^evenUon. 

3  all  persons  and  from  all  cities  and  towns  in  the  metropolitan  district,  ^^^*'  '^^'  ^  ^*' 

4  ad\ise  \\dth  the  officers  of  such  cities  and  towns,  and  make  suggestions 

5  to  the  general  court  and  to  the  cities  and  towns  looking  to  the  improve- 

6  ment  of  the  laws,  ordinances  and  by-laws  relating  to  fire  departments, 

7  construction  of  buildings,  building  or  fire  limits,  use  and  occupation  of 

8  buildings  and  other  premises,  protection  of  existing  buildings,  fire  escapes 

9  and  other  life  saving  devices,  segregation  and  licensing  of  trades  dangerous 

10  by  reason  of  fire  hazard,  and  all  other  matters  relating  to  fire  preven- 

11  tion  and  fire  hazard. 

1  Section  50.     The  commissioner  shall  make  an  annual  report  of  the  Report  of 

2  acts  of  the  division  under  sections  thirty-one  to  fifty-one,  inclusive,  with  i9i4°'795°T23. 

3  such  statistics  as  he  may  desire,  and  may  recommend  any  legislation  flf^^^^' 

4  which  he  may  deem  desirable.  1919, 5.  1920, 2. 

1  Section  51.     Except  as  otherwise  provided,  any  person  violating  any  Penalty. 

2  provision  of  sections  thirty  to  fifty,  inclusive,  shall  be  liable  to  a  fine  of  ^®^*'  ^^^'  ^  '^' 

3  fifty  dollars,  or,  in  case  of  a  continuing  offence  after  notice  of  such  \'iola- 

4  tion,  to  a  fine  of  not  more  than  ten  dollars  for  every  day  during  which  the 

5  violation  continues. 

GENERAL  PROVISIONS. 

1  Section  52.     No  person,  unless  authorized  by  a  license  or  permit  duly  Possession  of 

2  issued  as  required  by  this  chapter,  shall  have  in  his  possession  or  under  his  expi'oslve""* 

3  control  any  bombs  or  explosives.  Jfi^;  ^la. 

4  Whoever  violates  any  provision  of  this  section  shall  be  punished  by  p^^"']oo 

5  a  fine  of  not  more  than  three  hundred  dollars  or  by  imprisonment  for  |§  ^^"J"'\, 

6  not  more  than  one  year,  or  both,  and  any  bomb  or  explosive  owned  by  §§90-98"' 

7  him  or  found  in  his  possession  or  under  his  control  shall  be  forfeited  to  isos!  280! 

8  the  commonwealth.    Any  officer  qualified  to  serve  criminal  process  may  igillsls.' 

9  arrest  without  a  warrant  any  person  violating  this  section.  ^^  ^'  ^■ 

1  Section  53.     Notice  of  the  seizure  of  any  bomb  or  explosive  owned  f^°fi"°' 

2  bj'  or  found  in  the  possession  or  under  the  control  of  any  person  violating  i^i^,  323,  §  2, 

3  the  preceding  section  shall  be  sent  to  the  marshal  by  the  officer  making 

4  the  seizure  immediately  after  the  guilt  of  such  person  is  established 


1548 


FIRE   PREVENTION. 


[Chap.  148. 


by  a  final  adjudication  in  any  prosecution  brought  against  him  for  the  5 

said  violation,  and  thereupon  the  bomb  or  explosi\'e  so  seized  shall  be  6 

delivered  to  the  marshal  and  destroyed  or  sold  at  his  discretion,  and  lie  7 

shall  pay  any  proceeds  to  the  commomvealth.  8 


Tanks  for 
storage  of 
fluid. 
1919.  303, 
§§  1,  3. 


Section  54.     No  person  shall  construct,  maintain  or  use  any  tank  or  1 

container  of  more  than  ten  thousand  gallons  capacity,  imless  constructed  2 

principally  of  wood,  for  the  storage  of  any  fluid  other  than  water,  unless  3 

the  same  is  underground,  without  first  securing  a  permit  therefor  from  4 

the  marshal.    Whoever  ^■iolates  this  section  or  a  rule  or  regulation  made  5 

under  the  following  section  shall  be  punished  by  a  fine  of  not  less  than  6 

fiftv  nor  more  than  one  thousand  dollars.  7 


Rules  and 
regulations. 
1919,  303.  §  2. 


Explosive 
golf  balls. 
1913.  722. 
S§1,2. 


Section  55.    The  department  shall  make  rules  and  regulations  govern-  1 

ing  the  construction,  use  and  maintenance  of  tanks  to  which  the  pre-  2 

ceding  section  applies.    Such  rules  and  regulations  shall  not  take  effect  3 

until  approved  by  the  governor  and  council,  and  filed  in  the  office  of  the  4 

state  secretary.  5 

Section  56.     Whoever  manufactures  or  sells  or  knowingly  uses,  or  1 

has  in  possession  for  the  purpose  of  sale,  any  golf  ball  containing  any  2 

acid,  fluid,  gas  or  other  substance  tending  to  cause  the  ball  to  explode  3 

and  to  inflict  bodily  injury  shall  for  the  first  offence  be  punished  by  a  fine  4 

of  not  more  than  five  hundre<^l  dollars,  and  for  any  subsequent  offence  by  5 

a  fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  for  not  6 

more  than  one  year,  or  both.  7 


Blank 

cartridges,  toy 
pistols,  fire- 
works, etc. 
1805,  55. 
1823,  149,  §  2. 
1826,  3,  §  1. 
1828,  62,  §  1. 
R.  S.  58. 
§§5-7. 
1847,  51. 
G.  S.  88, 
§§46-48. 
1877.  216, 
§§  1-3. 
P.  S.  102, 
§§  54-56, 
59-61. 
18S2,  272. 
R.  L.  102, 
§§  87-89,  91, 
96-98. 

1904,  370. 

1905.  280. 
1910,565.  §  1. 
1913.  4.52. 
Op.  A.  G. 
(1917)  66. 

Penalty,  §  59. 


Section  57.  No  person  shall  sell  or  keep  for  sale  any  blank  cartridge,  1 
toy  pistol,  toy  gun  or  toy  cannon  that  can  be  used  to  fire  a  blank  cart-  2 
ridge;  or  sell  or  keep  for  sale,  or  fire,  explode  or  cause  to  explode  any  3 
blank  cartridge  or  bomb,  or  sell  or  keep  for  sale,  or  set  oft",  ex-plode  or  4 
cause  to  explode  any  fireworks  containing  any  picric  acid  or  picrates,  5 
or  any  firecracker  exceeding  two  inches  in  length  and  three  eighths  of  an  6 
inch  in  diameter  or  of  a  greater  explosi\e  power  than  a  firecracker  of  such  7 
size  containing  black  gunpowder  only;  provided,  that  this  section  shall  8 
not  apply  to  illuminating  fireworks  set  otT  between  the  hours  of  seven  9 
o'clock  in  the  afternoon  and  twelve  o'clock  midnight,  excepting  "those  10 
containing  picric  acid  or  picrates,  or  to  the  .sale  of  any  article  herein  11 
named  to  be  shipped  directly  out  of  the  commonwealth,  or  to  the  sale  12 
or  use  of  explosives  in  the  firing  of  salutes  by  official  authorities,  or  to  13 
the  sale  or  use  of  blank  cartridges  for  a  duly  licensed  show  or  theatre  14 
or  for  signal  purposes  in  athletic  sports,  or  to  experiments  at  a  factory  15 
for  ex-plosives,  or  to  the  firing  of  salutes  with  cannon  on  shore  or  on  boats  16 
where  a  permit  has  been  secured  from  the  marshal  or  some  officer  desig-  17 
nated  by  him  therefor,  or  to  the  sale  of  blank  cartridges  for  the  use  of,  or  18 
their  use  by,  the  militia  or  any  organization  of  war  veterans,  or  in  teach-  19 
ing  the  use  of  firearms  by  experts  on  days  other  than  holidays.  20 


Explosive 
stove  polish. 
1917,  153.  §  1. 


Section  58.  No  person  shall  manufacture,  store,  keep  for  sale,  sell 
or  transport  any  compound  for  use  as  a  stove  polish  containing  any 
Penalty.  §  59.  Hquid  Of  compouud  whatsoever  which  will  emit  a  gas  that  will  flash 
at  a  temperature  of  less  than  one  hundred  degrees  Fahrenheit,  except 
that  foundry  paste  which  contains  inflammable  compound,  if  packed  in 


Chap.  148.]  fire  prevention.  1549 

6  metal  containers,  sealed  by  fusion  and  weighing  in  gross  not  less  than 

7  five  pounds,  and  if  such  container  is  labelled  "  Dangerous  —  Inflammable 

8  compound  —  Keep  away  from  fire,  heat  and  lights"  may  be  manu- 

9  factured,  stored,  kept  for  sale,  sold  or  transported  for  use  only  by  stove 

10  foundries,  stove  manufacturers  and  stove  dealers  on  their  own  premises 

11  under  regulations  prescribed  by  the  marshal.     The  flash  point  of  said 

12  compound  shall  be  ascertained  by  use  of  either  Abel-Pensky's  or  Pensky- 

13  Martens'  closed  cup  instrument,  or  by  some  other  method  approved  by 

14  the  marshal. 

1  Section  59.     Violation  of  any  pro\'ision  of  section  fifty-seven  or  fifty-  Penalty. 

2  eight  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  it^l.'  as,'  1 1.' 

3  or  by  imprisonment  for  not  more  than  one  month,  or  both.  ^'  ^'  ^^'  ^  ^° 

p.  S.  102.  §  57.  1B04.  .370,  §  4.  1910,  565,  5  5. 

R.  L.  102,  §  90.  1905,  280,  §  3.  1917,  153,  §  2. 

1  Section  60.     Whoever  mixes  for  sale  naphtha  and  illuminating  oils  Dangerous 

2  or  naphtha  and  oils  to  be  used  for  fuel  in  dwellings  or  other  buildings  mUet""'"^ 

3  where  human  life  is  endangered  or  exposed,  or  sells  or  oft'ers  for  sale  such  \lll]  iH  1 1; 

4  mi.xture,  or  sells  or  oft'ers  for  sale,  except  for  remanufacture,  illuminat-  ^sfs  g?'/!"^' 

5  ing  or  fuel  oils  made  from  coal  or  petroleum  which  will  evaporate  a  gas  P  J-^^"^' 

6  under  one  hundred  degrees  Fahrenheit  or  ignite  at  a  temperature  of  less  io4  Mass  64 

7  than  one  hundred  and  ten  degrees  Fahrenheit,  to  be  ascertained  by  the  ii8Mas5^44i! 

8  application  of  Tagliabue's  or  some  other  approved  instrument,  shall  be 

9  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  impris- 

10  onment  for  not  more  than  one  month,  or  both,  and  shall  also  be  liable  for 

11  any  damage  suffered  by  any  person  from  the  explosion  or  ignition  of  such 

12  oil  thus  unlawfully  sold  or  kept  or  offered  for  sale.    Such  oil  thus  un- 

13  lawfully  sold  or  kept  or  offered  for  sale,  and  the  casks  or  packages  con- 

14  taining  the  same,  shall  be  forfeited  and  sold,  and  the  proceeds  shall  be 

15  equally  divided  between  the  informer  and  the  commonwealth. 

1  Section  61.     For  the  purposes  of  the  preceding  section,  illuminating  same  subject. 

2  or  fuel  oils  made  from  coal  or  petroleum  and  having  an  igniting  point  of  \ttl',  152;  1 3 

3  less  than  one  hundred  and  ten  degrees  Fahrenheit,  to  be  determined  as  i'8l5,9s\§^2™ 

4  therein  provided,  shall  be  deemed  to  be  mi.xed  with  naphtha,  and  shall  fioj^°^' 

5  be  branded  unsafe  for  illuminating  purposes  or  for  use  as  fuel. 

1  Section  62.    Whoever,  under  an  assumed  name,  sells  or  keeps  or  offers  Penalty  for 

2  for  sale  naphtha  shall  be  punished  by  a  fine  of  not  more  than  one  hun-  undeftTeceptu'e 

3  dred  dollars  or  by  imprisonment  for  not  more  than  one  month,  or  both,  )'867!2Sfi.  §  5. 

4  and  shall  be  subject  to  the  liabihties  set  forth  in  section  sixty.  ^'s'loi'in 

R.  L.  102,  I  108.  104  Mass.  64.  118  Mass.  441.  211  Mass.  60. 

1  Section  63.     Upon  complaint  made  to  a  court  or  justice  authorized  f^^"^^^'^^: 

2  to  issue  warrants  in  criminal  cases  that  the  complainant  has  probable  plosives  iiie- 

3  cause  to  suspect  and  does  suspect  that  gunpowder,  dvnamite  or  an\  other  i823,  ha,  §  2. 

t^i."*.  t|  SOS    RO     &  9 

4  explosives,  crude  petroleum  or  any  of  its  products,  or  ex^jlosive  or  inflam-  r."s'58,'§  8.' 

5  mable  fluids  are  kept  or  are  to  be  found  in  any  place  contrary  to  this  chap-  a^.'ls.  §  49. 

6  ter  or  regulations  made  hereunder,  such  court  or  justice  may  issue  a  search  JI77;  Ji,^;  1 1] 

7  warrant  in  conformity  with  chapter  two  hundred  and  seventy-six,  so  far  j'jfg^Sg 

8  as  applicable,  commanding  the  officer  to  whom  the  warrant  is  directed  to  R  l  102, 

9  enter  any  shop,  building,  manufactory,  vehicle  or  vessel  specified  in  the 

10  warrant,  and  there  make  dfligent  search  for  the  articles  specified  in  the 

11  warrant,  and  make  return  of  his  doings  forthwith  to  the  court  or  justice 


1550 


FIRE   PREVENTION. 


[Chap.  148. 


having  jurisdiction  thereof.    Warrants  issued  for  crude  petroleum  or  any  12 

of  its  products  or  explosive  or  inflammable  fluids  may  be  directed  to  an  1.3 

inspector  appointed  under  section  twenty,  to  an  engineer  of  a  fire  depart-  14 

ment  or  to  a  fireward.  15 


Forfeiture  of 
explosives 
illegallv  kept. 
1877.216,  §8. 
P.  S.  102,  §  79 
P.  L.  102, 
§  121. 


Section  64.     Articles  seized  under  the  preceding  section  may,  after  1 

due  notice  and  hearing,  be  adjudged  to  be  forfeited,  and  may  be  ordered  2 

to  be  sold  or  destroyed  in  such  manner  as  the  court  or  magistrate  may  3 

direct,  and  the  proceeds,  if  any,  paid  into  the  county  treasury.  4 


Matches. 
1909. 184, 
§§  1.2. 


Section  05.     Whoever  keeps  matches  for  sale  or  use  in  any  store  unless  1 

the  same  are  in  unbroken  cases  or  in  a  metal  or  other  fireproof  receptacle  2 

with  the  cover  closed,  except  when  it  is  necessarj'  to  obtain  access  thereto,  3 

shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars.  4 


Fire  balloons. 
1910,  141. 


Section  66.  Whoever  liberates  a  fire  balloon  shall  be  punished  by  a  1 
fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not  2 
more  than  one  month,  or  both.  3 


references. 

Outdoor  fires,  Chap.  48,  §§  13-1.5. 

See  Chap.  48,  §  58,  as  to  tenure  of  office  of  chiefs  of  fire  departments  in  the  metro- 
politan fire  prevention  district. 

§  40.    Rules  to  be  filed  with  state  secretary,  Chap.  30,  §  37. 


Chap.  149.] 


LABOR   XSD   INDUSTRIES. 


1551 


TITLE    XXI. 

LABOR   AND   INDUSTRIES. 

Chapter  149.  Labor  and  Industries. 

Ca.\PTER  150.  Conciliation  and  Arbitration  of  Industrial  Disputes. 

Ch.\pter  151.  The  Minimum  Wage. 

Ch.\pter  152.  Workmen's  Compensation. 

Chapter  153.  Liability  of  Employers  to  Employees  for  Injuries  not  resulting  in 

Death. 

Chapter  154.  Assignment  of  Wages. 


CHAPTER    149. 

LABOR  AND  INDUSTRIES. 


Sect. 

definitions. 

1.  Definitions. 

DUTIES    AND    POWERS    OF    DEPARTMENT    OF 
LABOR   AND    INDUSTRIES. 

2.  Duties  and  powers  in  general. 

3.  Inspection. 

4.  Report   of   disease    to  department   of 

public  health. 

5.  Investigations. 

6.  Investigations  as  to  safety  and  health. 

7.  Committees  to  recommend  rules. 

8.  Hearings  on  proposed  rules. 

9.  Appeal. 

10.  Powers  of  members  or  employees. 

11.  Reports  to  department  by  physicians. 

12.  Rules  of  department  as  to  safety  pre- 

vail  over   rules  of   insurance  com- 
panies. 

13.  Violation  of  rules  forbidden. 

14.  Annual  report. 

15.  Inspection  districts. 

16.  Penalty  for  inspector  accepting  a  re- 

ward. 

17.  Powers  of  inspection. 

18.  Duties  of  industrial  health  inspector. 

GENERAL    PROVISIONS    AS    TO    EMPLOYMENT. 

19.  Interfering  with  emplojTnent  of  a  per- 

son forbidden. 

20.  Compelling   a   person   not   to   join   a 

labor  organization. 

21.  Fraudulent    advertisements    concern- 

ing emplojTnent. 


Sect. 

22.  Advertising     for     employees     during 

strikes. 

23.  Same  subject. 

24.  Peaceful  persuasion  not  penalized. 

PUBLIC    EMPLOYMENT. 

25.  Public  emploj'ee  may  select  lodging, 

etc. 

26.  Preference  to  veterans  and  citizens  in 

public  work.     Wages. 

27.  Dispute  as  to  wages. 

28.  Actions    against   cities   or    towns   for 

labor. 

29.  Security    for    payment    of    labor    on 

public  works. 

30.  Eight  hour  day  and  forty-eight  hour 

week  for  certain  public  employees. 

31.  Eight  hour  day  for  certain  employees 

in  certain  cities  and  towns. 

32.  Definitions. 

33.  Limitation  of  sections  30  and  31. 

34.  Contracts  for  pubUc  work  to  contain 

stipulation  as  to  eight  hour  day. 

35.  Penalty  for   violating  section   30,  31 

or  34. 

36.  Eight  hour  day  not  applicable  in  cer- 

tain cases. 

37.  Nine  hour  day  in  certain  cities  and 

towns. 

38.  Vacations     for     certain     public    em- 

plojees. 

39.  Hours    of   labor   of   officers,    etc.,    of 

state  penal  institutions. 

40.  Hours  of  labor  in  county  institutions. 


1552 


LABOR   AND  INDUSTRIES. 


[Chap.  149. 


Sect. 

41.  Laborers,  etc..  employed  by  the  com- 

monwealth   to    be    given   Saturday 
half  holiday. 

42.  Employees  of  commonwealth  to  be  on 

day  work  basi.s  if  possible. 

43.  Equal  opportunity  of  employment  for 

all  citizens. 

44.  Holiday    for    veterans  on   Memorial 

Day. 

PRIVATE    EMPLOYMENT. 

45.  Penalty  for  requiring  labor  on  holiday. 

46.  Requiring  illegal  number  of  hours  to 

make  up  for  holiday  forbidden. 

47.  One  day's  rest  in  seven. 

48.  Same  subject. 

49.  Application  of  two  preceding  sections. 

50.  Exceptions. 

51.  List  of  persons  working  on  Sunday. 

52.  Time  book.     Penalties  for  violating 

sections  51  and  52. 

WORK    BY    WOMEN    AND    CHILDREN. 

53.  Heavy  boxes  moved  by  women  to  be 

provided  with  casters,  etc. 

54.  Investigations    of    core   rooms   where 

women  are  employed. 

55.  Employment  of  women  shortly  Ix'fore 

and  after  confinement  forbidden. 

56.  Hours  of  labor  for  A'omen  and  chil- 

dren. 

57.  Penalty  for  violation  of  preceding  sec- 

tion. 

58.  Women  and  minors  operating  eleva- 

tors. 

59.  Night  labor  for  women. 

60.  Employment  of  children  under  four- 

teen. 

61.  Employment   of   children   under   six- 

teen. 

62.  Employment  of  minors  under  eighteen. 

63.  Department  may  determine  processes 

which  are  injiwious  to  children. 

64.  Employment  of  persons  under  twenty- 

one. 

65.  Hours  of  labor  of  children  under  six- 

teen. 

66.  Hours  of  labor  of  boys  under  eighteen 

and  girls  under  twenty-one. 

67.  Same  subject. 

68.  Employment  of  minors  as  messengers. 

etc.,  regulated. 

69.  Street  trades  for  children  in  certain 

cities  regulated. 

70.  Same  subject. 

71.  Issue  of  badges. 

72.  Wearing  of  badges,  etc. 

73.  Hours  of  street  trades  for  boys. 

74.  Lists  of  hours  of  employment  of  minors 

to  be  posted. 

75.  Forms  of  lists  to  be  furnished  by  (he 

department. 

76.  Duties  of  inspectors. 

77;  Powers  of  attendance  officers. 


Sect. 

78.  Penalty  for  violation  of  statutes  as  to 

employing  minors. 

79.  Penalty  for  hindering  inspectors,  etc. 

80.  Penalty  for  selling   articles  to  be  il- 

legally sold  by  minors  engaged  in 
street  trades. 

81.  Penalty  on  parent  or  guardian,  etc. 

82.  Penalty  on  officials. 
S3.  Penalty  on  minors. 

84.  Service  of  process  for  violation  of  sec- 

tions   relating    to    employment    of 
children. 

85.  Application  of  sections  60  to  83,  in- 

clusive. 

86.  Employment  of  children  under  sixteen 

without     employment     certificates, 
etc.,  forbidden. 

87.  Employment  certificates.     Issue. 

88.  School    record   required    for   employ- 

ment certificate,  issue  of. 

89.  Contents  of  employment  certificate. 

90.  Penalties    for   illegal   employment  of 

children  under  sixteen,  altering  em- 
ployment certificate,  etc. 

91.  Employer  to  discharge  child  who  does 

not  attend  a  continuation  school  if 
required  to  do  so. 

92.  Duties  of  attendance  officers  and  in- 

spectors in  regard  to  illegal  employ- 
ment of  children. 

93.  Further  duties  of  attendance  officers. 

94.  Educational    certificates,   etc.,    to    be 

shown  on  request  of  officials. 

95.  Educational  certificates  for  minors  be- 

tween sixteen  and  twenty-one. 

96.  Application  of  sections  86  to  95,   in- 

clusive. 

97.  Penalty    for    illegal    employment    of 

minor   without   educational   certifi- 
cate. 

98.  Penalty    on    parent,     etc.,     allowing. 

minor  to  be  employed  without  edu- 
cational certificate. 

99.  Hours  for  meals  for  women  and  chil- 

dren. 

100.  Same  subject. 

101.  Application  of  the  two  preceding  sec- 

tions. 

102.  Working    during    mealtime    without 

knowledge  of  superintendent,  etc. 

103.  Seats  for  women  and  children. 

104.  Children  under  fifteen  not  allowed  to- 

appear  in  theatrical  exhibitions,  etc. 

105.  License  not  to  be  granted  lor  exhibi- 

tions in  which  children  under  fifteen- 
take  part. 


PROVISIONS    AS    TO    HEALTH    AND    SAFETY. 

106.  Drinking  water.  ' 

107.  Water  for  humidifying. 

108.  Thermometers  for  testing  humidity. 

109.  Section  108  not  applicable   to  textile 

factories  equipped   with   other   ap-- 
proved    testing  devices. 


Chap.  149.] 


L.\BOR   AND  INDUSTRIES. 


1553 


Sect, 
110. 
111. 
112. 

113. 

114. 


115. 


116. 


117. 
118. 
119. 

120. 
121. 
122. 

123. 

124. 
125. 

126. 

127. 

128. 

129. 

130. 
131. 
132. 
133. 
134. 

135. 

136. 

137. 
138. 
139. 
140. 
141. 
142. 


Limits  of  humidity. 

Sources  of  water  for  humidifying. 

Penalty  for  violation  of  sections  108 
to  111,   inclusive. 

Factories,  etc.,  must  be  properly 
lighted,  ventilated  and  kept  clean. 

Investigations  by  industrial  health  in- 
spectors as  to  effect  of  industries  on 
eyesight. 

Devices  for  preventing  injury  to  eyes. 
Penalty  for  violation  of  order  re- 
quiring such  devices. 

Investigation  as  to  lighting  on  request 
of  employees  or  inspector  of  depart- 
ment of  public  safety. 

Ventilation  of  factories. 

Devices  for  removal  of  dust. 

Emery  wheels,  etc.,  to  be  provided 
with  devices  for  removing  dust. 

Same  subject. 

Application  of  sections  119  and  120. 

Penalty  for  violation  of  sections  117 
to  121,  inclusive. 

Inspection  of  factories,  etc.,  not 
equipped  with  dust  removers. 

Communication  with  engine  room. 

Penalty  for  violation  of  preceding  sec- 
tion. 

Doors  not  to  be  locked  during  working 
hours. 

Guards  for  gears,  etc. 

Traversing  carriages  of  certain  ma- 
chines. 

Openings  in  hoistways,  etc.,  to  be 
guarded. 

Storage  of  explosives. 

Guards  for  shuttles. 

Suction  shuttles  prohibited. 

Toilet  facilities. 

Apportionment  of  expense  of  changing 
toilet  facilities. 

Prosecutions  for  violation  of  two  pre- 
ceding sections. 

Xotice  to  department  of  public  health 
of  unsanitary  conditions. 

Toilet  rooms  in  foundries. 

Penalty  for  injuring  toilet  appliances. 

Lockers  for  clothes. 

Spittoons. 

Medical  appliances,  etc. 

Cloths  for  cleaning  printing  presses. 


Sect. 

146.  Penalties. 

147.  Clothing 

wealth. 


made     outside     common- 


MANUFACTURB    OF    CLOTHING    IN    TENEMENT 
HOUSES. 

143.  License. 

144.  Notice  to  local  boards  of  health. 

145.  Tags  for  clothing  made  in  unlicensed 

tenement  houses. 


WEEKLY    PAYMENT    OF   WAGES. 

148.  Weekly  payment  of  wages. 

149.  Warrant    for   violation    of   preceding 

section. 

150.  Complaint  for  violation  of  section  148. 

151.  Payment  in  manufactories  when  over 

one  hundred  employed. 

152.  Deductions  for  tardiness. 

153.  Weavers'  fines. 

154.  Same  subject. 

155.  Specifications  for  weavers. 

156.  Same  subject. 

157.  Penalty  for  violation  of   section   155 

and  for  interference  with  inspector. 

158.  Deduction  from  wages  of  women  or 

children  for  stopping  machinery. 

159.  Notice  of  discharge. 

FREE    EMPLOYMENT    OFFICES. 

160.  Free  employment  offices.    Report. 

161.  Superintendents  and  clerks. 

162.  Records  of  applicants  for  employment. 

163.  Fees  prohibited. 

164.  Preference  to  residents. 

165.  Reports. 

166.  Appropriation  for  expenses. 

167.  Bulletins  as  to  demand  for  employ- 

ment. 

168.  Posting  bulletins. 

STATISTICS   OF    LABOR   AND   MANUFACTURES. 

169.  Commissioner,  etc.,   may  require  at- 

tendance of  witnesses,  etc. 

170.  Statistics  of  labor  and  manufactures. 

171.  Schedules  for  collecting  statistics. 

172.  Information  collected  not  to  be  so  pub- 

lished as  to  disclose  private  affairs. 

173.  Distribution  or  sale  of  old  papers. 

COMMISSION     ON     FOREIGN     AND     DOMESTIC 
COMMERCE. 

174.  Duties. 

MISCELL.^NEOUS    PROVISIONS. 

175.  Use  of  bells,  etc. 

176.  Emergency  police  officer. 

177.  Assistance  of  police  officers  to  protect 

property. 

178.  Voting  of  employees. 

179.  Posting  notices. 
ISO.  General  penalty. 


DEFINITIONS. 

1  Section  1.    In  this  chapter  the  following  words,  unless  a  different  D^jfi'",';""^^ 

2  meaning  is  required  by  the  context  or  is  specifically  prescribed,  shall 

3  have  the  following  meanings: 


5. 

1W)4,  .=.I)S,  ^  57, 
R.  L.  100.  §  8. 


1554  LABOR   AND   INDUSTRIES.  [Ch.\P.    149. 

If  limits  "Associate  commissioners",   the  associate  commissioners  of  the  de-    4 

1911  241:         partment  of  labor  and  industries.  5 

1912.191:726.  "Buildings  used  for  industrial  purposes"  or  "industrial  establish-  6 
1913.813.  ments"  shall  include  factories,  workshops,  bakeries,  mechanical  es-  7 
ilui.fis,  §],  tablishments,  laundries,  foundries,  tenement  house  workrooms,  all  8 
1919.^224;  350.  othcr  buildings  or  parts  thereof  where  manufacturing  is  carried  on,  and  9 
|§  66,  69,         mercantile  establishments  as  defined  in  this  section.  10 

"Child",  a  person  under  eighteen.  11 

"Commissioner",  the  commissioner  of  labor  and  industries.  12 

"Co-operative  courses",  courses  approved  as  such  by  the  department  13 
of  education  and  conducted  in  public  schools  where  technical  or  related  14 
instruction  is  given  in  conjunction  with  practical  experience  by  employ-  15 
ment  in  co-operating  factories,  manufacturing,  mechanical  or  mercantile  16 
establishments  or  workshops.  17 

"Department",  the  department  of  labor  and  industries.  18 

"Employment",  any  trade,  occupation  or  branch  of  industry,  any  19 
particular  method  or  process  used  therein,  and  the  ser\'ice  of  any  par-  20 
ticular  employer;  but  it  shall  not  include  private,  domestic  service  or  21 
service  as  a  farm  laborer.  22 

"Extraordinary  emergency",  danger  to  property,  life,  public  safety  23 
or  public  health.  24 

"Factory",  any  premises  where  mechanical  power  is  used  in  aid  of  25 
any  manufacturing  process  there  carried  on.  26 

"Industrial  disease"  or  "occupational  disease",  any  ailment  or  27 
disease  caused  by  the  nature  or  circumstances  of  the  employment.  28 

"Industrial  health  inspector",  an  inspector  qualified  by  training  29 
and  experience  in  matters  relating  to  health  and  sanitation.  30 

"Inspector",  an  inspector  of  the  department  of  labor  and  industries,  31 
except  an  inspector  of  the  division  of  standards.  32 

"Iron  works",  a  mill,  forge  or  any  premises  where  any  process  is  33 
carried  on  for  converting  iron  into  malleable  iron,  steel  or  tin  plate,  34 
or  for  otherwise  making  or  converting  steel.  35 

4  0p'a  Gii?;  "Manufacturing  establishments",  any  premises,  room  or  place  used  36 
for  the  purpose  of  making,  altering,  repairing,  ornamenting,  finishing  37 
or  adapting  for  sale  any  article  or  part  thereof.  38 

"Mechanical  establishments",  any  premises,  other  than  a  factory  as  39 
above  defined,  where  machinery  is  employed  in  connection  with  any  40 
work  or  process  carried  on  therein.  41 

4 Op  a' g' 137  "Mercantile  estabhshments ",  any  premises  used  for  the  purposes  of  42 
trade  in  the  pm-chase  or  sale  of  any  goods  or  merchandise,  and  any  43 
premises  used  for  a  restaurant  or  for  publicly  providing  and  serving  44 
meals.  45 

"Place  of  employment",  every  place,  whether  indoors  or  out  or  under-  46 
ground,  and  the  premises  appurtenant  thereto,  into,  in  or  upon  which  47 
any  employee  goes  or  remains  either  temporarily  or  regularly  in  the  48 
com'se  of  his  employment.  49 

"Print  works",  any  premises  where  the  process  of  printing  figures,  50 
patterns  or  designs  upon  yarn  or  cloth,  or  upon  any  woven  or  felted  51 
fabric  not  paper,  is  carried  on.  52 

"Safe"  or  "safety",  such  freedom  from  danger  to  life,  safety  and  53 
health  of  employees  as  the  nature  of  the  employment  will  reasonably  54 
permit.  55 

"Woman",  a  female  eighteen  or  over.  56 

"Workshop",  any  premises,  room  or  place,  not  a  factory  as  above  57 


CH-^P.    149.]  L.\BOR   AND   INDUSTRIES.  1555 

58  defined,  wherein  manual  labor  is  exercised  by  way  of  trade  or  for  pur- 

59  poses  of  gain  in  or  incidental  to  a  process  of  making,  altering,  repairing, 

60  ornamenting,  finishing  or  adapting  for  sale  any  article  or  part  thereof, 

61  and  to  which  or  over  which  premises,  room  or  place  the  employer  of 

62  the  persons  working  therein  has  the  right  of  access  or  control;   but  the 

63  exercise  of  such  manual  labor  in  a  private  house  or  private  room  by 

64  the  family  dwelling  therein  or  by  any  of  them,  or  if  a  majority  of  the 

65  persons  therein   employed  are  members  of  such  family,  shall  not  of 

66  itself  constitute  such  house  or  room  a  workshop. 

DUTIES  AND   POWERS   OF  DEPARTMENT   OF  LABOR   AND   INDUSTRIES. 

1  Section  2.     The  department  shall,  except  as  otherwise  specifically  Duties  and 

2  provided,  enforce  the  provisions  of  this  chapter,  and  shall  have  all  neces-  general"' 

3  sary  powers  therefor.  i876, 216.  i877. 214, 1 7. 

IS79.  305,  §  12.  1884.  52.  §  3.  R.  L.  108.  5  8. 

1880,  181.  1887.  21S.  1907.  413:  537,  §  5. 

1881,  137.  1888.  426.  §§  10,  14.  1912,  726,  §§  4,  5. 
P.  S.  103,  §10.  1894,382,  §1;  1914.  474,  §2. 

1882,  266,  I  6.  481,  §§  2,  35.  55.  1919,  350,  §  69. 

1  Section  3.    The   inspection   and   investigation   carried   on   by   the  inspection. 

2  department  shall  be  a  regular  and  systematic  inspection  and  investi-  i9i6!308! 

3  gation  of  all  places  of  employment  and  the  conditions  of  safety  and  '^^^'  ^^°'  ^  ^^' 

4  health  pertaining  thereto. 

1  Section  4.    The  department  shall  promptly  report  to  the  depart-  Report  of  dis- 

2  ment  of  public  health  all  cases  of  disease  in  industrial  establishments  ment^of  public'' 

3  affecting  the  health  of  the  community.  health. 

1912,  726,  §  6.  1919,  350,  §§  69,  96. 

1  Section  5.    The   department   may   investigate   conditions   existing  investigations. 

2  in  any  line  of  industry,  and  such  investigations  may  be  extended  out-  Igle,  n5',|2. 

3  side  of  the  commonwealth  to  procure  information  to  promote  industrial  i^iS'^oo,  §69. 

4  development  or  to  impro\-e  industrial  conditions.     It  shall  receive  all 

5  complaints  concerning  conditions  existing  in  any  industry  carried  on 

6  in  the   commonwealth,   or   concerning   alleged  violations   of  any  laws 

7  enforced  under  its  direction,  and  shall  thereupon  make  or  direct  all 

8  needful  and  appropriate  investigations  and  prosecutions. 

1  Section  6.     It  shall  investigate  from  time  to  time  employments  and  investigations 

~  ,  .  .  as  to  safety  and 

2  places  of  employment,  and  determine  what  suitable  safety  devices  or  '^*''!,"'^„„ 

3  other  reasonable  means  or  requirements  for  the  prevention  of  accidents  wis.  sis,'  §  i.' 

4  shall  be  adopted  or  followed  in  any  or  all  such  employments  or  places  of  IseVa^s.  407. 

5  employment;    and  also  shall  determine  what  suitable  devices  or  other 

6  reasonable  means  or  requirements  for  the  prevention  of  industrial  or 

7  occupational  diseases  shall  be  adopted  or  followed  in  any  or  all  such 

8  employments  or  places  of  employment;   and  shall  make  reasonable  rules, 

9  regulations  and  orders  applicable  to  either  employers  or  employees  or 

10  both  for  the  prevention  of  accidents  and  the  prevention  of  industrial  or 

11  occupational  diseases. 

1  Section  7.     The  commissioner  and  associate  commissioners  of  the  committees  to 

2  department   may  appoint  committees,   on  which  employers  and   em-  rS™"""""^ 

3  ployees  shall  be  represented,  to  make  such  investigations  and  recom-  Joli;  30s:  ^  ^' 

4  mend  rules  and  regulations.  1919, 330,  §  76. 


1556 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


Hearings  on 

proposed 

rules. 

1913,  813, 

§§2,7. 

1919,350, 

§§69,71. 


Section  8.     Before  adopting  any  rule  or  regulation  under  section  1 

six,  a  public  hearing  shall  be  given,  and  not  less  than  ten  days  before  2 

the  hearing  a  notice  thereof  shall  be  published  in  at  least  three  news-  3 

papers,  of  which  one  shall  be  published  in  Boston.    Such  rules  or  regu-  4 

lations  shall,  when  approved  by  the  associate  commissioners,  be  pub-  5 

lished  in  like  manner,  and,  subject  to  section  thirty-seven  of  chapter  6 

thirty,  shall  take  effect  thirty  days  after  such  publication  or  at  such  7 

later  time  as  the  associate  commissioners  may  fix.     Before  adopting  8 

any  order  a  hearing  shall  be  given  thereon,  of  which  a  notice  of  not  less  9 

than  ten  days  shall  be  given  to  the  persons  affected  thereby.  10 


Appeal. 
1919,  350, 


78. 


Section  9.  Any  person  affected  by  an  order,  rule  or  regulation  of  1 
the  department  may  appeal  to  the  associate  commissioners  within  2 
such  time  as  they  by  vote  may  fix,  but  not  less  than  ten  days  after  3 
notice  of  the  ofder  or  the  taking  effect  of  the  rules  or  regulations.  The  4 
associate  commissioners  shall  thereupon  gi\e  a  hearing,  and  thereafter  5 
may  amend,  suspend  or  revoke  such  order,  rule  or  regulation.  Pending  6 
the  hearing  the  commissioner  may  suspend  the  order,  rule  or  regulation  7 
appealed  from.  Any  person  aggrieved  by  an  order  approved  by  the  8 
associate  commissioners  may  appeal  to  the  superior  court  within  fifteen  9 
days  after  the  date  of  approval.  The  superior  court  may  annul  the  10 
order  if  it  is  found  to  exceed  the  authority  of  the  department,  and  11 
upon  petition  of  the  commissioner  may  enforce  all  \'alid  orders  issued  12 
by  the  department.  This  section  shall  not  deprive  any  person  of  any  13 
other  lawful  remedy.  14 


menSersOT  SECTION  10.     In   ordcr   to   make   investigations    under   section   six, 

i9\'3°si3'*s  5     members  or  employees  of  the  department  may  at  any  time  enter  places 
19161308!         of  emplo^inent  when  being  used  for  business  purposes.       1919,  350,  §  69.  3 


1 

2 


Reports  to 

department  by 

physicians. 

1913,  813,  §  6. 

1916,308. 

1919,350, 

§§  68,  69,  95.    . 


Section  11.     The  department  may  require  every  physician  treating  1 

a  patient  whom  he  belie\'es  to  be  suffering  from  any  ailment  or  disease  2 

contracted  as  a  result  of  the  nature,   circumstances  or  conditions  of  3 

the  patient's  employment  to  report  such  information  relating  thereto  4 

as  it  may  require,  within  such  time  as  it  may  fix,  and  it  may  issue  a  list  5 

of  such  diseases  which  shall  be  regularly  reported  upon  by  physicians,  6 

and  may  add  to  or  change  such  list  at  any  time.     Copies  of  all  such  7 

reports  and  all  statistics  and  data  compiled  therefrom  shall  be  kept  by  8 

it,  and  shall  be  furnished  on  request  to  the  department  of  industrial  9 

accidents  and  the  department  of  public  health.  10 


department  as        SECTION  12.     If  any  rule   or   regulation   made   under   authority   of  1 

to  safety  pre-     scctiou  sixt\'-four  of  chaptcr  one  hundred  antl  fiftv-two  conflicts  with  2 

vail  overrules  ,...«*  ..  eii  ■  i 

of  insurance      or  diffcrs  irom  a  rule  or  regulation  of  the  department,  its  rule  or  regula-  3 

companies.             , .            ,      n                  -i  a 

1913, 813,  §  10.  tion  shall  prevail.                       loie,  sos.                       I9i9,  350,  §  69.  4 


Section  13.     No  person  shall  violate  any  reasonable  rule,  regulation, 


Violation  of 
rules  forbidden. 

1913. 1^3,  §  13.  order  or  requirement  made  by  the   department  under  section  six 

1919]  350'.  §  69.  eleven.  Penalty,   §  ISO. 


Annual  report 
1871,394,  §  6. 

1877!  214;  §6.    eluding  the  reports  required  by  sections  one  hundred  and  sixty  and 


Section  14.     The   commissioner   shall   make   an  annual  report,  in-     1 

2 


Chap.  149.]  l.\bor  and  industries.  1557 

3  one  hundred  and  seventy  of  this  chapter,  section  ten  of  chapter  one  is79, 305,  §  3. 

4  hundred  and  fifty,  section  fifteen  of  chapter  one  hundred  and  fifty- §§3.11.' 

5  one,  and  section  fifty-seven  of  chapter  ninety-eight. 

1894,  481,  §  59.  1912,  726,  §  14.  1918,  189,  §  1. 

R,  L.  108,  §  2.  1914,  533.  1919,  350,  §§  8,  69. 

1  Section  15.    With   the   approval    of   the   associate   commissioners  inspection 

2  the  commissioner  may  divide  the  commonwealth  into  inspection  dis-  io'i^tIb,  §  9. 

3  tricts,  and  assign  the  necessary  number  of  inspectors  thereto.  §§  ot,^7^o.' 

1  Section  16.    An   inspector   who   directly   or   indirectly   receives   a  Penalty  for 

2  reward,   gift  or  gratuity  on  account  of  his   oflBcial   services   shall   be  ITcceptog  a 

3  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  58n!^394, 

4  ment  for  not  more  than  three  months,  and  shall  also  be  discharged  from  ||^^'  ^^.  ,  g 

5  office.  1S77,  214,  §  10.  1879,  305,  §  6. 

P.  S.  103,  §6;  104,  §  24.  1894,  481,  §  50.  1912,  726,  §  10. 

1882,  266,  §  5.  R.  L.  108,  §  6.  133  Mass.  233. 

1  Section  17.     For  the  enforcement  of  the  provisions  of  this  chapter,  Powers  of 

2  the  commissioner,  the  director  of  the  di\-ision  of  industrial  safety  and  'is76,'^2'°6"' 

3  inspectors  may  enter  all  buildings  and  parts  thereof  used  for  industrial  Jlycj'.iosifl^. 

4  purposes  and  examine  the  methods  of  protection  from  accident,  the  p^'f/o^g^ « lo 

5  means  of  escape  from  fire,  the  sanitary  provisions,  the  lighting  and  means  issi  p^'  5  6. 

6  of  ventilation,  and  make  investigations  as  to  the  employment  of  women  iss?!  218. 

7  and  minors  and  as  to  compliance  with  all  provisions  of  this  chapter.  §§  16,  u.' 

1894,  481,  §2;  534,  §3.      R.  L.  106,  §  67;  108.  §  8.      1912,  726,  §§  6,  11. 
1895,144,5  3.  1907,413.  1919,350,5  75. 

1901,  370,  §  2.  1909.  514,  §§  117,  145. 

1  Section  18.     Every  industrial  health  inspector  shall  inform  himself  ^ju'sfrra'i 

2  concerning  the  health  of  all  minors  employed  in  factories  within  his  health 

insT)6Ctor. 

3  district;  and  whenever  he  may  deem  it  advisable  or  necessary,  he  shall  1907,537, §3. 

4  call  the  ill  health  or  physical  unfitness  of  any  minor  to  the  attention  of  1919',  350'  §  69. 

5  his  parents,  guardians  or  employer  and  of  the  department. 

GENERAL   PROVISIONS   AS   TO   EMPLO'i'JIENT. 

1  Section  19.    No   person   shall,   by  intimidation  or  force,   prevent  interfering 

2  or  seek  to  prevent  a  person  from  entering  into  or  continuing  in  the  ment'of  apeV- 

3  employment  of  any  person.  is75, 211,  §  2.  ^°°  forbidden. 

p.  S.  74,  §  2.  1909,  514.  §§  18,  145,  167  Mass.  92. 

1894,  508,  §  2.  128  Mass.  70. 

R.  L.  106,  §  11.  147  Mass.  212.  Penalty,  §  ISO. 

1  Section  20.     No  person  shall,  himself  or  by  his  agent,  coerce  or  compelling  a 

2  compel  a  person  into  a  written  or  oral  agreement  not  to  join  or  become  foinTiabor*" 

3  a  member  of  a  labor  organization  as  a  condition  of  his  securing  employ-  igl^^'lso!""' 

4  ment  or  continuing  in  the  employment  of  such  person. 

1894,437;  1909,514,  236  Mass.  504. 

508,  §  3.  §§  19,  145. 

R.  L.  106.  §  12.  188  Mass.  353.  Penalty,  §  180. 

1  Section  21.    Whoever  knowingly  causes  to  be  printed  or  published  advertise- "^ 

2  a  false  or  fraudulent  notice  or  advertisement  for  help  or  for  obtaining  mentscon- 

cerning 

3  work  or  emplojTnent  shall  be  punished  by  a  fine  of  not  more  than  five  en.pioynient. 

4  hundred  dollars  or  by  imprisonment  for  not  more  than  three  months,  or  1909!  sui 

5  both.  ""•"^- 


1558 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


Advertising  for 

employees 

during  strikes. 

1910,445.  §  1. 

1914.347, 

5U.6. 

216  Mass.  350. 


Section  22.     If  an  employer,  during  the  continuance  of  a  strike,  1 

lockout  or  other  labor  trouble  among  his  employees,  publicly  adver-  2 

tises  in  newspapers  or  by  posters  or  otherwise  for  employees,   or  by  3 

himself  or  his  agents  solicits  persons  to  work  for  him  to  fill  the  places  4 

of  strikers,  he  shall  plainly  and  explicitly  mention  in  such  advertise-  5 

ments  or  oral  or  written  solicitations  that  a  strike,  lockout  or  other  labor  6 

trouble  exists  among  his  employees.  7 

Duty  of  board  of  conciliation  under  §§22  and  23,  Chap,  150.  §  4. 


Same  subject. 
1910,445,  §  2. 
1914,347. 
B  2-4.  C. 

1915,  lOS. 

1916,  143. 
1919,350,  §  09. 
207  Mass.  394. 


Section  23.  No  person,  during  the  continuance  of  a  strike,  lockout  1 
or  other  labor  trouble  among  his  employees  or  those  of  another  person,  2 
shall  directly  or  indirectly  procure  or  attempt  to  procure,  or  assist  in  3 
any  way  in  procuring  or  attempting  to  procure,  persons  to  fill  the  places  4 
of  employees  invoh-ed  in  such  strike,  lockout  or  other  labor  trouble,  if  5 
such  persons  are  or  have  been  solicited  by  means  of  ad\ertisements  or  6 
oral  or  written  statements  in  which  it  has  not  been  plainly  and  explicitly  7 
mentioned  that  a  strike,  lockout  or  other  labor  trouble  exists  in  the  8 
establishment  where  such  persons  are  to  be  employed.  This  provision  9 
shall  apply  whether  such  ad\'ertisements  or  oral  or  written  solicitations  10 
were  made  within  or  without  the  commonwealth.  11 

After  investigation  by  and  upon  complaint  of  the  department,  any  12 
person  violating  any  pro\-ision  of  this  or  the  preceding  section  shall  13 
be  punished  by  a  fine  of  not  more  than  one  hundred  dollars.  14 


Peaceful  per- 
suasion not 
penalized. 
1913,  690. 
231  Mass.  220. 

235  Mass.  269. 

236  Mass.  310. 


Section  24.     No  person  shall  be  punished  criminally,  or  held  liable  1 

or  answerable  in  any  action  at  law  or  suit  in  equity,  for  persuading  or  2 

attempting  to  persuade,  by  printing  or  otherwise,  any  other  person  to  do  3 

anything,  or  to  pursue  any  line  of  conduct  not  unlawful  or  actionable  4 

or  in  violation  of  any  marital  or  other  legal  duty,  unless  such  persuasion  5 

or  attempt  to  persuade  is  accompanied  by  injury  or  threat  of  injury  to  6 

the  person,  property,  business  or  occupation  of  the  person  persuaded  7 

or  attempted  to  be  persuaded,  or  by  disorder  or  other  unlawful  conduct  8 

on  the  part  of  the  person  persuading  or  attempting  to  persuade,  or  is  9 

a  part  of  an  unlawful  or  actionable  conspiracy.  10 


PUBLIC    EMPLOYMENT. 


Public  em- 
ployee may 
select  lodging, 

1900,  469. 
R.  L.  106,  §  13, 
1909,614, 
§§  20,  145. 


Section  25.     Every  employee  in  public  work  shall  lodge,  board  and  1 

trade  where  and  with  whom  he  elects;  and  no  person  or  his  agents  or  2 

employees  under  contract  with  the  commonwealth,  a  county,  city  or  3 

town,  or  with  a  department,  board,  commission  or  officer  acting  there-  4 

for,  for  the  doing  of  public  work  shall  directly  or  indirectly  require,  as  5 

Penalty,  §  180.  ^  condition  of  employment  therein,  that  the  employee  shall  lodge,  board  6 

or  trade  at  a  particular  place  or  with  a  particular  person.     This  section  7 

shall  be  made  a  part  of  the  contract  for  such  employment.  8 


Preference  to 
veterans  and 
citizens  in 
public  work. 
Wages. 
1S96,  494. 
R.  L.  100,  §  14. 
1904,311. 
1909,  614, 
B21,  145. 
1914,474,  I  1. 
1917.200. 
1919,  253. 
223  Mass.  109. 


Section  26.     In    the    employment    of    mechanics,    teamsters    and  1 

laborers  in  the  construction  of  public  works  by  the  commonwealth,  or  2 

by  a  county,  town  or  district,  or.  by  persons  contracting  therewith  for  3 

such  construction,  preference  shall  first  be  given  to  citizens  of  the  com-  4 

monwealth  who  have  served  in  the  army  or  navy  of  the  United  States  5 

in  time  of  war  and  have  been  honorably  discharged  therefrom  or  re-  6 

leased  from  active  duty  therein,  and  who  are  qualified  to  perform  the  7 

work  to  which  the  employment  relates;    and  secondly,  to  citizens  of  8 


225  Mass.  292. 


Chap.  149.]  labor  and  industries.  1559 

9  the  commonwealth  generally,  and,  if  they  cannot  be  obtained  in  suffi-  ^q's^'soo'^  """ 

10  cient  numbers,  then  to  citizens  of  the  United  States;  and  every  contract  " 

11  for  such  work  shall  contain  a  provision  to  this  effect.    The  wages  for  a 

12  day's  work  paid  to  mechanics  and  teamsters  emploj-ed  in  the  construc- 

13  tion  of  public  works  as  aforesaid  shall  be  not  less  than  the  customary 

14  and  pre\-ailing  rate  of  wages  for  a  day's  work  in  the  same  trade  or  occu- 

15  pation  in  the  locality  where  such  public  works  are  constructed;    pro- 

16  vided,  that  no  town  in  the  construction  of  public  works  shall  be  required 

17  to  give  preference  to  veterans  not  residents  of  such  town,  over  citizens 

18  thereof.     Any  contractor  who  knowingly  and  wilfully  violates  this  sec- 

19  tion  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars. 

1  Section  27.     In  case  of  any  dispute  as  to  such  customary  and  pre-  Dispute  as 

2  vailing  rate  of  wages,  the  department  shall  investigate  the  wages  paid  i<ii4?474,  §2. 

3  in  the  trade  or  occupation  in  the  locality  where  such  public  works  are  ^^^®'  ^^°'  ^  ^^• 

4  under  construction,  and  decide  what  rate  of  wages  shall  be  paid. 

1  Section  28.     A  person  to  whom  a  debt  is  due  for  labor  performed  in  Actions 

2  constructing  a  building,  sewer  or  drain,  or  water  works  or  other  public  of  tmiis'tif 

3  works   owned   by  a  town,  under  a  contract  with  any  person  having  'i^ggoS-o. 

4  authority  from  or  rightfully  acting  for  such  town  in  furnishing  such  f^^-  g^^  §  57. 

5  labor,  shall  have  a  right  of  action  against  such  town  to  recover  such  ^L^^v'^^-ns 

6  debt  if,  within  thirty  days  after  he  ceases  to  perform  such  labor,  he  n's  Mass.  201! 

7  files  in  the  clerk's  office  of  the  town  against  which  he  claims  such  right 

8  of  action  a  written  statement  under  oath  of  the  amount  of  the  debt 

9  so  due  to  him,  and  the  names  of  the  persons  for  whom  and  by  whose 

10  employment  the  labor  was  performed,  and  if,  within  sixty  days  after 

11  he  ceases  to  perform   such   labor,   he  commences  such  action.     Such 

12  right  of  action  shall  not  be  lost  by  reason  of  a  mistake  in  stating  the 

13  amount  due;    but  the  claimant  shall  not  recover  as  damages  a  larger 

14  amount  than  is  named  in  said  statement  as  due  to  him,  with  interest. 

15  No  person  who  has  contracted  to  furnish  labor  other  than  his  own  in 

16  such  construction  shall  have  such  right  of  action. 

1  Section  29.     Officers  or  agents  who  contract  in  behalf  of  any  county,  security  for 

2  Qity  or  town  for  the  construction  or  repair  of  public  buildings  or  other  iTboTonpub- 

3  public  works  shall  obtain  sufficient  security,  by  bond  or  otherwise,  for  igol^Sg. 

4  payment  by  the  contractor  and  sub-contractors  for  labor  performed  or  §§°|3,*i«. 

5  furnished  and  materials  used  in  such  construction  or  repair;    but  to  .'olViss  494 

6  obtain  the  benefit  of  such  security  the  claimant  shall  file  in  the  office  of  206  Mass!  ass'. 

,  p      1  •*  J.  1      1  J  i»  -11  Mass.  113. 

7  the  county  treasurer  or  of  the  city  or  town  clerk  a  sworn  statement  of  21s  Mass.  535. 

8  his  claim  within  sixty  days  after  the  claimant  ceases  to  perform  labor  233  Mais.  420. 

9  or  furnish  labor  or  materials.  235  Mass.  203.  230  Mass.  319. 

1  Section  30.     The  service  of  all  laborers,  workmen  and  mechanics  Eight  hour  day 

2  now  or  hereafter  employed  by  the  commonwealth  or  any  county  therein  iVour  week  for' 

3  or  any  town  which,  by  vote  of  the  city  council,  or  of  the  A-oters  at  a  emptoyw"'''"' 

4  town  meeting,  accepts  this  section  or  has  accepted  section  one  of  chapter  \ll°'  ^l^ 

5  two  hundred  and  fortv  of  the  General  Acts  of  nineteen  hundred  and  J*^,-*' ^os- 1 7- 
0  SLxteen,  or  by  any  contractor  or  sun-contractor  tor  or  upon  any  public  1900..517, 

7  works  of  the  commonwealth  or  of  any  county  therein  or  of  any  such  1907. 269.  §  1 ; 

8  town  is  hereby  restricted  to  eight  hours  in  any  one  day  and  to  forty-  1909.514, 

9  eight  hours  in  any  one  week.    No  officer  of  the  commonwealth  or  of  any  fgu^'.iM',  §*r 


1560 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


1916,240,  county  or  of  any  such  town,  no  such  contractor  or  sub-contractor  or  10 
iyMass.416.  other  person  whose  duty  it  is  to  employ,  direct  or  control  the  service  of  11 
lOi^A^G^w.  such  laborers,  workmen  or  mechanics  shall  require- or  permit  any  such  12 
fTs^ig?*^'**^'  laborer,  workman  or  mechanic  to  work  more  than  eight  hours  in  any  13 
3  Op.  A.  G.  93,  one  day,  or  more  than  forty-eight  hours  in  any  one  week,  except  in  cases  14 


567 


4  Op.  A.  G.  20,   of  extraordinary  emergency. 


Op.  a.  G.  (1919)  42. 


15 


!20. 
I  1. 


Eiglit  hour  day 
for  certain  em- 
ployees in  cer- 
tain cities  and 
towns. 

1899,  344. 

1900,  357. 
R.  L.  106, 
1906,  517, 
1909,  514. 
§§  42,  145. 
1911,494,  §  1. 
208  Mass.  619, 
220  Mass.  416. 
226  Mass.  517. 

2  Op.  A.  G.  442. 

3  Op.  A.  G. 
93,  567. 

4  Op.  AG.  443 


Section  31.    The  service  of  all  laborers,  workmen  and  mechanics  1 

now  or  hereafter  employed  by  any  town  which  has  accepted  section  2 

twenty  of  chapter  one  hundred  and  six  of  the  Revised  Laws,  or  section  3 

forty-two  of  chapter  five  hundred  and  fourteen  of  the  acts  of  nineteen  4 

hundred  and  nine,  or  said  section  forty-two,  as  affected  by  chapter  four  5 

hundred  and  ninety-four  of  the  acts  of  nineteen  hundred  and  eleven,  6 

and  which  has  not  accepted  section  one  of  chapter  two  hundred  and  7 

forty  of  the  General  Acts  of  nineteen  hundred  and  sixteen,  or  by  any  8 

contractor  or  sub-contractor  for  or  upon  any  public  works  of  any  such  9 

town,  is  hereby  restricted  to  eight  hours  in  any  one  day.    No  officer  of  10 

any  such  town,  no  such  contractor  or  sub-contractor  or  other  person  11 

whose  duty  it  is  to  employ,  direct  or  control  the  service  of  such  laborers,  12 

workmen  or  mechanics  shall  require  or  permit  any  such  laborer,  work-  13 

man  or  mechanic  to  work  more  than  eight  hours  in  any  one  day,  except  14 

in  cases  of  extraordinary  emergency.     But  any  such  town  may  accept  15 

the  preceding  section  and  shall  thereupon  become  subject  thereto.  16 


i907?269T§  1;  Section  32.  In  construing  sections  thirty  and  thirty-one,  engineers  1 
1909  514  ^  37  shall  be  regarded  as  mechanics,  and  a  threat  of  loss  of  employment  or  a  2 
i9ii!494!§  1.    threat  to  obstruct  or  prevent  the  obtaining  of  emploj-ment  or  to  refrain    3 


1916!  240!  I  1. 


from  employing  in  the  future  shall  be  considered  to  be  "requiring' 


Section  33.     It  shall  not  be  a  violation  of  section  thirty  or  thirty- 


Limitation  of 

sections  30  '.' ~, —     ^~  ~~    '"  ."'    " "    ~". . *'     ~~     *' 

1906^517  6 1  *^"®  *^'  ^^  ^^^  event  of  a  Saturday  half  lioliday  being  given  to  a  laborer, 

1907,' 269!  §  1;  workmau  or  mechanic,  his  hours  of  labor  upon  other  working  days 

1909, 514,  §  37,  are  increased  sufficiently  to  make  a  total  of  fortv-eight  hours  for  his 

1911,  494,  §  1.  1   I  I  .  c' 

1916, 240,  s  1.  week  s  work. 


Contracts  for 
public  work  to 
contain  stipula- 
tion as  to  eight 
hour  day. 

1893,  406. 

1894,  508,  §  S. 
R.  L.  106,  §  21. 

1906,  517,  §  2. 

1907,  269,  §  2. 
1909,  514, 

§§  38,  145. 
1911,494,  §  2. 

3  Op.  A.  G.  73. 

4  Op.  A.  G.  303. 


Section  34.     Every  contract,  except  for  the  purchase  of  material  or  1 

supplies,  to  which  the  commonwealth,  or  any  county  or  any  town  which  2 

has  accepted  section  twenty  of  chapter  one  hundred  and  six  of  the  3 

Revised  Laws,  is  a  party,  involving  the  employment  of  laborers,  work-  4 

men  or  mechanics,  shall  contain  a  stipulation  that  no  laborer,  workman  5 

or  mechanic  working  within  the  commonwealth,  in  the  employ  of  the  6 

contractor,  sub-contractor  or  other  person  doing  or  contracting  to  do  7 

the  whole  or  a  part  of  the  work  contemplated  by  the  contract,  shall  be  8 

requested  or  required  to  work  more  than  eight  hours  in  any  one  day,  9 

and  every  such  contract  not  containing  this  stipulation  shall  be  null  10 

and  void.  11 


vkSating'sec-         Section  35.     Any  agent  or  official  of  the  commonwealth  or  of  any  1 

OT.34^'''  ^'        county,  city  or  town,  or  any  contractor  or  sub-contractor,  or  any  agent  or  2 

1907'  ^ot'  §  3     P^^son  acting  on  behalf  of  any  contractor  or  sub-contractor,  who  \'iolates  3 

i909!5i4!§46    section  thirty,  thirty-one  or  thirty-four  shall  be  punished  by  a  fine  of  4 

■      '     '    not  more  than  one  thousand  dollars  or  by  imprisonment  for  six  months,  5 

or  both.  6 


Chap.  149.]  labor  and  industries.  1561 

1  Section  36.     Sections   thirty,   thirty-one  and   thirty-four  shall   not  Eight  imur  day 

2  apply  to  the  preparation,  printing,  shipment  and  delivery  of  ballots  to  "n ce'naincasls. 

3  be  used  at  a  caucus,  primary,  state,  city  or  town  election,  nor  during  igosi  sui  §  39. 

4  the  sessions  of  the  general  court  to  persons  employed  in  legislative  \l\l'  ■*"-'^'  ^  *• 


)  34, 99, 101. 


-SIB.  240,  §  2. 

5  printing  or  binding;    nor  shall  they  apply  to  persons  employed  in  any  '-jis.  so.  §2; 

6  state,  county  or  municipal  institution,  on  a  farm,  or  in  the  care  of  the  1919,3.50, 

7  grounds,  in  the  stable,  ni  the  domestic  or  kitchen  and  dining  room 

8  service  or  in  store  rooms  or  offices,  or  to  persons  employed  by  the  com- 

9  missioners  of  the  Massachusetts  nautical  school,  on  boats  maintained 

10  by  the  state  police  for  the  enforcement  of  certain  laws  in  the  waters  of 

11  the  commonwealth,  or  in  connection  with  the  care  and  maintenance 

12  of  state  armories,  or  to  the  purchase,  operation  or  lease  of  farm  ma- 

13  chinery  by  the  department  of  agriculture. 

1  Section  37.     In  any  town  not  subject  to  section  thirty  or  thirty-  Nine  hour  day 

2  one  nine  hours  shall  constitute  a  day's  work  for  all  laborers,  workmen  and'^towSs'^'*'^^ 

3  and  mechanics  employed  by  or  on  behalf  of  such  town.         issi.  350.  1^90, 375. 

1S94.  508.  §  7.  R.  L.  100,  §  19.  1909,  514,  §§  43.  145.  1  Op.  A.  G.  10. 

1  Section  38.    All   laborers,    workmen    and    mechanics    permanently  vacations  for 

2  in  the  employ  of  the  commonwealth  or  the  metropolitan  district  com-  employee".  "^ 

3  mission  who  are  within  the  provisions  of  section  thirty  as  affected  by  '^j'!^  1^2 ;  350, 

4  sections  thirty-two  and  thirty-six  shall  be  entitled  to  an  annual  vaca-  op'a^g^^^^' 

5  tion  of  at  least  twelve  working  days  with  pay.  dsi'')  1*2. 

1  Section  39.     The  hours  of  labor  of  officers,   instructors  and  such  Hours  of  labor 

2  other  employees  of  state  penal  institutions  as  are  described  in  section  °l  "tate  penal ' 

3  thirty-six  shall  not  exceed  sixty  in  each  week,  and  every  such  officer,  jgos^s]?"!' 

4  instructor  or  employee  whose  presence  is  required  at  the  institution  i?09;5i4! 

5  seven  days  a  week  shall  be  given  at  least  two  days'  vacation  in  each 

6  month,  without  loss  of  pay,  in  addition  to  the  regular  annual  \'acation. 

7  This  section  shall  not  prevent  the  warden  or  superintendent  from  re- 

8  quiring  the  services  of  all  his  officers,   instructors  and  employees  to 

9  assist  in  recapturing  an  escaped  prisoner  or  in  any  case  of  extraordinary 
10  emergency. 

1  Section  40.     Officers,  watchmen  and  matrons  employed  by  counties  Hours  of  labor 

2  in  penal  and  reformatory  institutions  shall  be  subject  to  sections  thirty,  InstftutTOns. 

3  thirty-two  and  thirty-three.     The  hours  of  labor  of  such  other  em-  \^f'  Hij  §  00 

4  ployees  of  county  jails  and  houses  of  correction  as  are  described  in  Jgog's^l  §55 

5  section  thirty-six  Shall  not  exceed  sixty  in  each  week,  and  every  such  1914;  023!  §1. 

6  employee  whose  presence  is  required  at  such  institutions  seven  days  a 

7  week  shall  be  given  at  least  two  days  of  vacation  in  each  month,  without 

8  loss  of  pay  in  addition  to  any  annual  vacation.     A  county  oflScer  re- 

9  quiring  an  employee  to  work  more  than  sixty  hours  in  a  week  shall  be   . 

10  punished  by  a  fine  of  not  less  than  twenty-five  nor  more  than  fifty 

11  dollars. 

1  Section  41.     Except  as  provided   in   section   sLxty-five  of  chapter  Laborers,  etc., 

2  ninety-two,   all   laborers,   workmen   and   mechanics   employed   by   the  X^'commo.^- 

3  commonwealth  in  any  capacity,  or  by  any  officer,  department  or  board  E^en'satu'rday 

4  on  behalf  of  the  commonwealth,  who  are  permanent  employees  or  who  i;iu''i;s8,Ti. 

5  have  been  certified  under  the  ci\il  service  laws,  and  whose  services  can  }^Jg' ^p' 

6  be  dispensed  with,  shall  be  given  a  half  holiday  on  every  Saturday  in  s'§5.'rT'" 

7  the  year  without  loss  of  pay.  3  op.  a.  g.  ei.  §§  6,i  65." 


1562 


LABOR   AND    INDUSTRIES. 


[ClL^.P.    149. 


rammZ^^"'  SECTION  42.  So  far  as  possible,  all  work  by  laborers,  workmen  and 
dav'work  basis"  ™echanics  employed  by  the  commonwealth  or  by  any  officer,  depart- 
'Ap°°1'!?1«-.  -     ment,  board  or  commission  on  behalf  of  the  commonwealth,  shall  be 


1914,688. 
1915.  2S8. 


on  the  day  work  basis. 


1918,262,  §§5,6. 


Equal  oppor- 
tunity of 
eniployment 
for  all  citizens. 
1920.  376. 


Section  43.  The  application  of  a  citizen  of  the  commonwealth  for 
employment  in  any  department  of  the  commonwealth  or  of  any  political 
subdivision  thereof  or  in  any  department  of  a  street  railway  company, 
operated,  owned,  controlled  or  financially  aided  in  any  way  by  the  com- 
monwealth, or  by  any  political  subdivision  thereof,  shall  not  be  affected 
by  the  applicant's  national  origin,  race  or  color. 


Holiday  for 
veterans  on 
Alemorial 
Dav. 
1920,  531. 


Section  44.     No  veteran,  as  defined  in  section  twenty-one  of  chapter  1 

thirty-one,  in  the  service  of  the  commonwealth  or  of  any  county,  city  or  2 

town  therein,  or  of  the  metropolitan  district  commission,  except  police-  3 

men  and  firemen  and  members  of  the  department  of  public  safety  doing  4 

police  duty,  shall  be  required  to  perform  any  service  on  Memorial  Day.  5 

Such  veterans,  if  employed  as  policemen  or  firemen  by  the  metropolitan  6 

district  commission  or  by  any  city  or  town,  may  be  granted  leave  of  7 

absence  without  loss  of  pay  on  Memorial  Day  by  the  said  commission  8 

or  by  the  governing  authorities  in  cities  and  towns.  9 


Penalty  for  re- 
quiring labor 
on  holiday. 
1911,  151, 
§§  1,2. 


private  employment. 


Section  45.     Whoever  recjuires  an  employee  to  work  in  any  mill  1 

or  factory  on  any  legal  holiday,  except  to  perform  such  work  as  is  both  2 

absolutely  necessary  and  can  lawfully  be  performed  on  Sunday,  shall  be  3 

punished  by  a  fine  of  not  more  than  five  hundred  dollars.  4 


Requiring 
illegal  number 
of  hours  to 
make  up  for 
holiday  for- 
bidden. 
1913,359,  §  1. 


Section  46.    No  person  shall  requu-e  or  request  any  employee  of  a  1 

manufacturing  or  mechanical  establishment  to  work  more  hours  in  any  2 

one  day  than  is  limited  by  law,  in  order  to  make  up  time  lost  by  reason  3 

of  a  legal  holiday.  Penalty,  §  iso.  4 


One  day 's  rest 
in  seven. 
1907,  677. 
1909.  514, 
§§  52.  145. 
1913,619, 
§§1.2. 


Section  47.  Whoever,  except  at  the  request  of  the  employee,  re- 
quires an  employee  engaged  in  any  commercial  occupation  or  in  the 
work  of  any  industrial  process  not  subject  to  the  following  section  or  in 
the  work  of  transportation  or  communication  to  do  on  Sunday  the 
usual  work  of  his  occupation,  unless  he  is  allowed  during  the  sLx  days 
next  ensuing  twenty-four  consecutive  hours  without  labor,  shall  be 
punished  by  a  fine  of  not  more  than  fifty  dollars;  but  this  and  the 
following  section  shall  not  be  construed  as  allowing  any  work  on  Sunday 
not  otherwise  authorized  by  law. 


Same  subject. 

1913,019, 

§§1,6, 


Section  48.     Every  employer  of  labor  engaged  in  carrying  on  any  1 

manufacturing  or  mercantile  establishment  in  the  commonwealth  shall  2 

allow  e\ery  person,  except  those  specified  in  section  fifty,  employed  in  3 

such  manufacturing  or  mercantile  establishment  at  least  twenty-four  4 

consecutive  hours  of  rest  in  every  seven  consecutive  days.    No  employer  5 

shall  operate  any  such  manufacturing  or  mercantile  establishment  on  6 

Sunday  unless  he  has  complied  with  section  fifty-one.    Whoever  violates  7 

this  section  shall  be  punished  by  a  fine  of  fifty  dollars.  8 


Chap.  149.]  labor  and  industries.  1563 

1  Section  49.    The  two   preceding   sections   shall   not   apply  to   es-  Application  of 

2  tabiishinents  used  for  the  manufacture  or  distribution  of  gas,  electricity,  'rc'tion"''  '"* 

3  milk  or  water,  hotels,  restaurants,  drug  stores,  livery  stables  or  garages,  \to9.  In.  ^  ^' 

4  nor  to  the  transportation,  sale  or  delivery  of  food.  i9i3,  eia,  §  5.  s§  =^'  ^*^- 

1  Section  50.     Sections  forty-seven  and  forty-eight  shall  not  apply  to  Exceptions. 

2  (a)  janitors;   (b)  watchmen;   (c)  employees  whose  duties  include  no  work  '^^^'  ^'^'  ^ "' 

3  on  Sunday  other  than  (1)  setting  sponges  in  bakeries,  (2)  caring  for 

4  live  animals,  (3)  maintaining  fires,  (4)  caring  for  machinery';    (d)  em- 

5  ployees  engaged  in  the  preparation,  printing,  publication,  sale  or  de- 

6  livery  of  newspapers;    (e)  farm  or  personal  service;    (/)  any  labor  called 

7  for  by  an  emergency  that  could  not  reasonably  have  been  anticipated. 

1  Section  51.     Before  operating  on  Sunday,  every  employer  subject  i-ist  of  persons 

2  to  section  forty-eight  shall  post  in  a  conspicuous  place  on  the  premises  sunda^^  °" 

3  a  schedule  containing  a  list  of  his  emploj'ees  who  are  required  or  allowed  iglglssoileg. 

4  to  work  on  Sunday  and  designating  the  day  of  rest  for  each,  and  shall 

5  file  a  copy  of  such  schedule  with  the  department,  and  promptly  file  with 

6  it  a  copy  of  every  change  therein.    No  employee  shall  be  required  or 

7  allowed  to  work  on  the  day  of  rest  designated  for  him. 

1  Section  52.     Every  employer  subject  to  section  forty-eight  shall  keep  Time  book. 

2  a  time  book,  open  to  inspection  by  the  department,  showing  the  names  viofating 

3  and  addresses  of  all  employees  and  the  hours  worked  by  each  of  them  and'52.^^' 

4  in  each  day.     Whoever  violates  this  or  the  preceding  section  shall  be  Sj'^le'^' 

5  punished  by  a  fine  of  fifty  dollars.  1919, 350,  §  69. 

WORK   BY  women  AND   CHILDREN. 

1  Section  53.     Boxes,   baskets  and   other  receptacles  weighing  with  Heavy  boxes 

2  their  contents  seventy-five  pounds  or  over,  which  are  to  be  mo\'ed  by  womln  to  be 

3  female  employees  in  any  manufacturing  or  mechanical  establishment,  ca°t"^s';1.t'c."'' 

4  shall  be  provided  with  pulleys  or  casters  connected  with  such  boxes  or  5^\^'2"''' 

5  other  receptacles,  so  as  to  be  moved  easily  from  place  to  place  in  such  J^h.  241. 

6  establishments.     Whoever  violates  this  section  shall  be  punished  by 

7  a  fine  of  not  more  than  fifty  dollars  for  every  day  during  which  such 

8  violation  continues. 


1  Section  54.    The   department   shall   investigate   core  rooms  where  investigations 

2  women  are  employed,  and  shall  make  rules  regulating  the  employment  wh^e'^won^n 

3  of  women  therein.    The  rules  shall  relate  to  the  structure  and  location  ^gll.^ssf |§  1, 

4  of  the  rooms,  the  emission  of  gases  and  fumes  from  ovens,  and  the  size  i^il^ss^'s  69 

5  and  weight  which  the  women  shall  be  allowed  to  lift  or  work  on.     A 

6  copy  of  the  rules  shall  be  posted  in  every  core  room  where  \\omen  are 

7  employed.    Whoever  violates  any  such  rule  shall  be  punished  by  a  fine 

8  of  not  less  than  twenty-five  nor  more  than  five  hundred  dollars. 

1  Section  55.    No   female   person   shall   knowingly   be   employed   in  Employment  of 

2  laboring  in  a  mercantile,  manufacturing  or  mechanical  establishment  be°fo're'and°alter 

3  within  two  weeks  before  or  four  weeks  after  childbirth.    The  foregoing  for^bidd^n."' 

4  pro\'ision  shall  be  included  in  the  notice  with  regard  to  the  employment  §1^^!^®' 

5  of  women  required  to  be  posted  in  such  establishments.      Penalty,  §  iso. 


1564  LABOR    AND   INDUSTRIES.  [ChAP.    149. 

fo?wome!fand       SECTION  56.     No  child  and  no  woman  shall  be  employed  in  laboring    1 

is42,'iio,  §  3      in  any  factory  or  workshop,  or  in  any  manufacturing,  mercantile,  me-    2 

1867  285^^2     chauical  establishment,  telegraph  office  or  telephone  exchange,  or  by    3 

1874!  221.' 1 1.    any  express  or  transportation  company  more  than  nine  hours  in  any    4 

p".s.'74,  §4.      one  day;   and  in  no  case  shall  the  hours  of  labor  exceed  forty-eight  in  a    5 

1S84',  275,        week,  except  that  in  manufacturing  establishments  where  the  employ-    6 

1886,  lo.  ment  is  determined  by  the  department  to  be  by  seasons,  the  number    7 

1892;  35?!  1 1!    of  such  hours  in  any  week  may  exceed  forty-eight,  but  not  fifty-two,    8 

s§^?6^ii'         provided  that  the  total  number  of  such  hours  in  any  year  shall  not    9 

1900. 3 jS.         exceed  an  average  of  forty-eight  hours  a  week  for  the  whole  year,  ex-  10 

R.  l!io6.         eluding  Sundays  and  holidays;    and  if  any  child  or  woman  shall  be  11 

1902,435.         employed  in  more  than  one  such  place,  the  total  number  of  hours  of  12 

■  i9os!  645!         such  employment  shall  not  exceed  forty-eight  hours  in  any  one  week.  13 

§§°47^4|;i45     Every  employer,  except  those  hereinafter  designated,  shall  post  in  a  14 

191''' 452- 477    couspicuous  placc  in  every  room  where  such  persons  are  employed  a  15 

1913!  758;  831,   printed  notice  stating  the  number  of  hours'  work  required  of  them  on  16 

1915, 57j^  each  day  of  the  week,  the  hours  of  beginning  and  stopping  work,  and  17 

1919!  113;         the  hours  when  the  time  allowed   for  meals  begins  and  ends,  or,  in  18 

35o!  I U.         case  of  mercantile  establishments  and  of  establishments  exempted  from  19 

222  Mass!  299!   sections  ninety-nine  and  one  hundred,   the  time,  if  any,  allowed  for  20 

30  '^A^G ^•'(ig  nieals.     The  emplovanent  of  any  such  person  at  any  time  other  than  21 

4  0p-A  G.  ns.  as  stated  in  said  printed  notice  shall  be  deemed  a  violation  of  this  22 

(1917)42.         section  unless  it  appears  that  such  employment  was  to  make  up  time  23 

(1919)  (i3'.         lost  on  a  previous  day  of  the  same  week  in  consequence  of  the  stopping  24 

a920)  160.       of  machinery  upon  which  such  person  was  employed  or  dependent  for  25 

Penalty.  §  180  employment;    but  no  stopping  of  machinery  for  less  than  thirty  con-  26 

secutive  minutes  shall  justify   such   overtime   employment,   nor  shall  27 

such  overtime  employment  be  authorized  until  a  written  report  of  the  28 

day  and  hour  of  its  occurrence  and  its  duration  is  sent  to  the  depart-  29 

ment,  nor  shall  such  overtime  employment  be  authorized  because  of  30 

the  stopping  of  machinery  for  the  celebration  of  any  holiday.     Every  31 

employer  engaged  in  furnishing  public  service,  or  in  any  other  kind  of  32 

business  in  respect  to  which  the  department  shall  find  that  public  ne-  33 

cessity  or  convenience  requires  the  employment  of  children  or  women  34 

by  shifts  during  different  periods  or  parts  of  the  day,  shall  post  in  a  35 

conspicuous  place  in  every  room  where  such  persons  are  employed  a  36 

printed  notice  stating  separately  the  hours  of  employment  for  each  37 

shift  or  tour  of  duty  and  the  amount  of  time  alloweci  for  meals.    A  list  38 

by  name  of  the  employees,  stating  in  which  shift  each  is  employed,  39 

shall  be  kept  on  file  at  each  place  of  employment  for  inspection  by  em-  40 

ployees  and  by  officers  charged  with  the  enforcement  of  the  law.     In  41 

cases  of  extraordinary  emergency  or  extraordinary  public  requirement,  42 

this  section  shall  not  apply  to  employers  engaged  in  public  service  or  43 

in  other  kinds  of  business  in  which  shifts  may  be  required  as  herein-  44 

before  stated;   but  in  such  cases  no  employment  in  excess  of  the  hours  45 

hereby  authorized  shall  be  considered  as  legalized  until  a  MTitten  report  46 

of  the  day  and  hour  of  its  occurrence  and  its  duration  is  sent  to  the  47 

department.  48 

vfolationof  SECTION  57.    A  parent  or  guardian  who  permits  a  child  under  his  1 

se'ctTon'"'^  control  to  be  employed  in  violation  of  the  preceding  section,  and  any  2 

G*^s'42'|3  person  who,  either  for  himself  or  as  superintendent,  overseer  or  agent  3 

1867. 285, 1 3.  for  another,  employs  any  person  in  violation  of  said  section,  or  fails  4 

1879!  207!  to  post  the  notice  required  by  it,  or  makes  a  false  report  of  the  stopping  5 


Chap.  149.]  labor  and  industries.  1565 

6  of  machinery,  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  isso,  194,  §  2. 

7  than  one  hundred  dollars.  i8S4, 275,  §  2.  iss-,  2so.  §  1.  .  .    .  ^  . 

1S94.  508,  |§  59-Gl.     R.  L.  106,  §  25.     1909,  514,  §§  49,  145.     210  Mass.  387. 

1  Section  58.    Any  law  restricting  the  hours  of  women  and  minors  women  and 

2  laboring  in  factories  or  workshops,  or  in  mercantile,  manufactm-ing  or  Sing'^devators. 

3  mechanical  establishments,  shall,  unless  it  is  otherwise  expressly  pro-  ^"^^^  "'■ 

4  vided,  apply  to  women  and  minors  operating  elevators  in  such  establish- 

5  ments,  or  in  any  building  occupied  in  whole  or  in  part  by  any  such 

6  establishment,  or  in  any  office  building. 

1  Section  59.     No  person,  and  no  agent  or  officer  of  a  person,  shall  ^of^en"''"'^ '"' 

2  employ  a  woman  over  twenty-one  in  any  capacity  for  the  purpose  of  li^S'if^- 

3  manufacturing  before  six  o'clock  in  the  morning  or  after  ten  o'clock  isg?.  sos. 

4  in  the  evening,  or  in  the  manufacture  of  textile  goods  after  six  o'clock  r.  l.'ioo,  §  27. 

5  in  the  evening.     Whoever  violates  any  provision  of  this  section  shall  igon^lil; 

6  be  punished  by  a  fine  of  not  less  than  twenty  nor  more  than  fifty  iop''a.*g.209. 

7  dollars. 

1  Section  60.     No   person   shall  employ  a  minor  under  fourteen  or  Employment  of 

2  permit  him  to  work  in  or  about  or  in  connection  with  any  factory,  work-  fourtee"."'"'^'^ 

3  shop,   manufacturing,   mechanical  or  mercantile  establishment,  barber  Igre^sl^^V' 

4  shop,  bootblack  stand  or  establishment,  public  stable,  garage,  brick  or  fjfa  "'gl^^ '' 

5  lumber  yard,  telephone  exchange,  telegraph  or  messenger  office,  or  in  i885[222; 

6  the  construction  or  repair  of  buildings,  or  in  any  contract  or  wage  §§  i.'2. 

7  earning  industry  carried  on  in  tenement  or  other  houses.     No  such  i894!508; 

8  minor  shall  be  employed  at  work  performed  for  wage  or  other  com-  is98!'494,  §  1. 

9  pensation,  to  whomsoever  payable,  during  the  hours  when  the  public  1965;  267,' |  f*' 

10  schools  are  in  session,  nor  shall  he  be  employed  at  work  before  half  past  \^'^-  f^f  5  ^■ 

11  six  o'clock  in  the  morning  or  after  six  o'clock  in  the  evening.  §§56,145. 

1913,  779,  §  14;  209  Mass.  489.  Penalty,  §  78. 

831,  §  1.  2  0p.  A.G.  616. 

204  Maas.  18.  3  Op.  A.  G.  177. 

1  Section  61.     No    person    shall    employ   a   minor   under   sixteen   or  Employment  of 

2  permit  him  to  work  in  operating  or  assisting  in  operating  any  of  the  sii'teln"  ^"^"^ 

3  following  machines:    (1)  cu-cular  or  band  saws,  (2)  wood  shapers,  (3)  Ullisos!^'' 

4  wood  jointers,   (4)   planers,   (5)   picker  machines  or  machines  used  in  f^^  I'/ol  ^  42 

5  picking  wool,  cotton,   hair  or  other  material,   (6)  paperlace  machines,  st'7'3^145 

6  (7)   leather  burnishing   machines,   (8)  job  or  cylinder  printing  presses  i?i3,'83i,' 

7  operated  by  power  other  than  foot  power,  (9)  stamping  machines  used  1920,  298. 

8  in  sheet  metal  and  tinware  or  in  paper  or  leather  manufacturing  or  Penalty,  §  78. 

9  in  washer  and  nut  factories,  (10)  metal  or  paper  cutting  machines,  (11) 

10  corner  staying  machines  in  paper  box  factories,   (12)  corrugating  rolls 

11  such  as  are  used  in  corrugated  paper  or  in  roofing,  or  washboard  fac- 

12  tories,  (13)  steam  boilers,  (14)  dough  brakes  or  cracker  machinery  of  any 

13  description,  (15)  wire  or  iron  straightening  or  drawing  machinery,  (10) 

14  rolling  mill  machinery,  (17)  power  punches  or  shears,  (18)  washing  or 

15  grinding  or  mixing  machinery,  (19)  calender  rolls  in  paper  and  rubber 

16  manufacturing  or  other  heavy  rolls  driven  by  power,   (20)  laundering 

17  machinery,   (21)  upon  or  in  connection  with  any  dangerous  electrical 

18  machinery  or  appliances,  or  in  adjusting  or  assisting  in  adjusting  any 

19  hazardous  belt  to  any  machinery,  or  in  oiling  or  cleaning  hazardous 

20  machinery,  or  in  proximity  to  any  hazardous  or  unguarded  belts,  ma- 


1566 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


chinery  or  gearing  while  such  machinery  or  gearing  is  in  motion;  or  21 
in  scaffolding;  or  in  heavy  work  in  the  building  trades;  or  in  stripping,  22 
assorting,  manufacturing  or  packing  tobacco;  or  in  any  tunnel;  or  in  23 
a  public  bowling  alley;  or  in  a  pool  or  billiard  room.  No  such  minor  24 
shall  be  employed  or  permitted  to  operate,  clean  or  repair  a  freight  25 
elevator;  violation  of  this  provision  shall  be  punished  by  a  fine  of  not  26 
more  than  one  hundred  dollars.  27 


Employment 
minors  under 
eighteen. 
1913  831,  §  5, 

Penalty,  §  78. 


°'      Section  62.     No  person  shall   employ  a  minor  under  eighteen  or  1 

permit  him  to  work:   (1)  in  or  about  blast  furnaces;    (2)  in  the  operation  2 

or  management  of  hoisting  machines;   (3)  in  oiling  or  cleaning  hazardous  3 

machinery  in  motion;    (4)  in  the  operation  or  use  of  any  polishing  or  4 

buffing  wheel;    (5)  at  switch  tending;    (6)  at  gate  tending;    (7)  at  track  5 

repairing;    (8)  as  a  brakeman,   fireman,   engineer,   motorman  or  con-  6 

ductor  upon  a  railroad  or  railway;    (9)  as  a  fireman  or  engineer  upon  7 

any  boat  or  vessel;    (10)  in  operating  motor  vehicles  of  any  description;  8 

(11)   in   or  about   establishments   wherein    gunpowder,    nitroglycerine,  9 

dynamite  or  other  high  or    dangerous    explosive  is   manufactured   or  10 

compounded;    (12)  in  the  manufacture  of  white  or  yellow  phosphorus  11 

or  phosphorus  matches;    (13)  in  any  distillery,  brewery,  or  any  other  12 

establishment  where  malt  or  alcoholic  liquors  are  manufactured,  packed,  13 

wrapped  or  bottled;   (14)  in  that  part  of  any  hotel,  theatre,  concert  hall,  14 

place  of  amusement  or  other  establishment  where  intoxicating  liquors  15 

are  sold.    This  section  shall  not  prohibit  the  employment  of  minors  in  16 

drug  stores.  17 


Department 

may  determine 

processes  which 

are  injurious  to 

cliildren. 

1901.  164. 

R.  L.  106,  §  44. 

1909.  514,  §  75. 

1910,404. 

1913,831, 

§§4,6. 

1919,  311,  S  1; 

350,  §  69. 

Penalty,  §  78. 


Section  63.     The  department  may,  after  a  hearing  duly  held,  deter-  1 

mine  whether  or  not  any  particular  trade,  process  of  manufacture  or  2 

occupation,  in  which  the  employment  of  minors  under  the  age  of  sixteen  3 

or  eighteen  is  not  forbidden  by  law,  or  any  particular  method  of  carry-  4 

ing  on  such  trade,  process  of  manufacture  or  occupation,  is  sufficiently  5 

dangerous  or  is  sufficiently  injurious  to  the  health  or  morals  of  minors  6 

under  sixteen  or  eighteen   to  justify   their  exclusion   therefrom.     No  7 

minor  under  sixteen  or  eighteen  shall  be  employed  or  permitted  to  work  8 

in  any  trade,  process  or  occupation  thus  determined  to  be  dangerous  or  9 

injurious  to  such  minors,  respectively.  10 


Employment  of 
persons  under 
twentv-one. 
1913,831,  §  7. 

Penalty,  §  78. 


Section  64.     No  person  shall  employ  a  minor  or  permit  him  to  work  1 

in,  about  or  in  connection  with  any  saloon  or  bar  room  where  alcoholic  2 

liquors  are  sold.     No  person  shall   knowingly  take  or  send  any  such  3 

minor  or  cause  or  permit  him  to  be  sent  to  any  disorderly  house  or  4 

house  of  prostitution  or  assignation  or  other  immoral  place  of  resort  5 

or  amusement.  6 


Hours  of  labor 
of  children 
under  sixteen. 
1913,805,  §  1; 
831,  §8. 
1919,311, 
§  l,cl.S. 
4  Op.  A.  G.  257. 

Penalty,  §  78. 


Section  65.     No   person   shall    employ   a   minor   under   sixteen   or  1 

permit  him  to  work  in,  about  or  in  connection  with  any  establishment  2 

or  occupation  named  in  section  sixty  for  more  than  six  days  in  any  one  3 

week,  or  more  than  forty-eight  hours  in  any  one  week,  or  more  than  eight  4 

hours  in  any  one  day,  or  before  half  past  six  o'clock  in  the  morning,  or  5 

after  six  o'clock  in  the  evening.     The  time  spent  by  such  a  minor  in  6 

a  continuation  school  or  course  of  instruction  as  required  by  section  7 

twenty-two  of  chapter  seventy-one  shall  be  reckoned  as  a  part  of  the  8 

time  he  is  permitted  to  work.  9 


Chap.  149.]  labor  and  industries.  1567 

1  Section  66.     No  person  shall  employ  a  boy  under  eighteen  or  a  Hours  of  labor 

2  girl  undei-  twenty-one  or  permit  such  a  boy  or  girl  to  work  in,  about  eigi'teen"an" 

3  or  in  connection  with  any  establishment  or  occupation  named  in  sec-  fwenfy-one. 

4  tion  sixty  before  five  o'clock  in  the  morning  or  after  ten  o'clock  in  the  is92;83^' 

5  evening,  or  in  the  manufacture  of  textile  goods  after  six  o'clock  in  the  Jf^jl^^yf' 

6  evening;  provided,    that  girls  under  twenty-one  may  be  employed  as  k.  L.ioe.  §  27. 

7  operators  in  regular  service  telephone  exchanges  until,  but  not  after,  1909'.  514; 

8  eleven  o'clock  in  the  evening.  1913.  S3i.§9.  1917,294.  §§si,  145, 

1  Op.  A.  G.  209.  4  Op.  A.  G.  257.  Penalty,  §  78. 

1  Section  67.    Except  as  limited  by  section  fifty-six,  no  person  shall  f^^^lsij^^'^g 

2  employ  a  boy  under  eighteen  or  a  girl  under  twenty-one  or  permit  such  J^J^'^^^ 

3  a  boy  or  girl  to  work  in,  about  or  in  connection  with  any  establishment        '      . 

4  or  occupation  named  in  section  sixty  for  more  than  six  days  in  a  week, 

5  or  more  than  fifty-four  hours  in  a  week,  or  more  than  ten  hours  in  a  day. 


1  Section  68.     Except    for    the    delivery    of    messages    directly    con-  Employment  of 

2  nected  with  the  business  of  conducting  or  publishing  a  newspaper  to  ^n'gers,''etc!!^' 

3  a  newspaper  office  or  directly  between  newspaper  offices,  no  person  \'Qu%li\  §  i. 

4  shall  employ  a  minor  or  permit  him  to  work  as  messenger  for  a  tele-  i^'s.  S3i.  §  lo. 

5  graph,  telephone  or  messenger  company  in  the  distribution,  transmis-  Penalty,  §  78. 

6  sion  or  delivery  of  goods  or  messages  before  five  o'clock  in  the  morning 

7  or  after  ten  o'clock  in  the  evening. 

1  Section  69.     No  boy  under  twelve  and  no  girl  under  eighteen  shall,  f'or  cwidrelfln 

2  in  any  city  of  over  fifty  thousand  inhabitants,  sell,  expose  or  offer  for  Ji^u'JgJpj'''''' 

3  sale  any  newspapers,  magazines,  periodicals  or  any  other  articles  of  isis.ssi,  §  ii. 

4  merchandise  of  any  description,  or  exercise  the  trade  of  bootblack  or  Penalty,  §  83. 

5  scavenger,  or  any  other  trade,  in  any  street  or  public  place.  * 

1  Section  70.     No  boy  under  sixteen  shall  in  any  such  city  engage  same  subject. 

2  in  any  of  the  trades  or  occupations  mentioned  in  the  preceding  section 

3  unless  he  complies  with  all  the  provisions  of  the  three  following  sections    '°  ty.  §  s  . 

4  and  with  all  of  the  legal  requirements  concerning  school  attendance, 

5  and  unless  a  badge  has  been  issued  to  him  by  the  officer  authorized 

6  to  issue  employment  certificates  in  the  city  where  such  boy  resides. 

1  Section  71.    Such  badge  shall  not  be  issued  until  the  officer  issuing  issue  of  badges. 

2  the  same  shall  have  received,  examined,  approved  and  filed  evidence 

3  that  such  boy  is  twelve  or  over,  which  shall  consist  of  the  proof  of  age 

4  required  by  section  eighty-seven  for  the  issuing  of  an  employment  certifi- 

5  cate.    Such  officer  may  refuse  to  issue  such  badge  to  any  boy  who  in 

6  his  opinion,  after  due  investigation,  is  found  physically  or  mentally  in- 

7  competent  or  unable  to  do  such  work  in  addition  to  the  regular  school 

8  attendance  required  by  law. 

1  Section  72.    The  badge  shall  be  worn,  conspicuously  exposed  at  all  li^^f^l"\°l 

2  times,  by  such  boy  while  so  working.    No  boy  to  whom  the  said  badge  i9i3.  ssi.  §  u. 

3  has  been  issued  shall  transfer  the  same  to  any  other  boy.     He  shall  Penalty,  §  sa. 

4  exhibit  the  same  upon  demand  at  any  time  to  any  officer  mentioned  in 

5  section  seventy-seven.     The  school  committee  of  any  city  may  make 

6  further  regulations  and  requirements  for  issuing  such  badges. 


1568 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


"ades  flr^boys.      SECTION  73.    No  boy  undcF  Sixteen  shall  engage  in  any  of  the  trades 
1913. 831,  §  15.  or  occupations  mentioned  in  section  sixty-nine  in  any  street  or  public 
Penalty,  §  S3,    placc  after  nine  o'clock  in  the  evening  or  before  five  o'clock  in  the  morn- 
ing, nor,  unless  provided  with  an  employment  certificate,  during  the 
hours  when  the  public  schools  in  the  city  where  such  boy  resides,  or 
the  school  which  such  boy  attends,  are  in  session. 


empioymenrof^      SECTION  74.     Exccpt  as  providcd  in  section  fifty-six,  every  person     1 

minors  to  be      employing  any  minor  in  any  establishment  mentioned  in  section  sixty    2 

1913,831.  §  16.  shall  keep  posted  in  a  conspicuous  place  in  the  room  where  such  minor    3 

Penalty,  §  78.    is  employed  or  permitted  to  work  a  printed  notice  stating  the  number    4 

of  hours  such  minor  is  required  or  permitted  to  work  on  each  day  of    5 

the  week,  with  the  total  for  the  week,  the  hours  of  commencing  and    6 

stopping  work,  and  the  hours  w-hen  the  time  allowed  for  meals  begins    7 

and  ends  for  each  day  of  the  week.  8 

The  employment  of  any  minor  at  any  time  other  than  as  stated  in    9 

said  printed  notice  shall  be  deemed  a  violation  of  this  section.     The  10. 

terms  of  such  notice  for  any  week  or  part  thereof  shall  not  be  changed  11 

after  the  beginning  of  labor  on  the  first  day  of  the  week  without  the  12 

written  consent  of  the  commissioner.  13 


to™furm's'hed  Section  75.  The  department,  after  approval  by  the  attorney 
ment"^ ''^''"^''  gcueral,  shall,  upon  application,  furnish  the  printed  forms  of  the  lists 
1887' ^80  1  ^^^  notices  required  by  sections  fifty-six  and  seventy-four  to  all  persons 
1894',  sos',  §  11,  required  to  post  the  same.        i9oi.  113.  r.  l.  loe,  §§  23. 24.         1902. 435. 

1908.645.  1911,484,  §1.  1915,57. 

1909.514.  1912.477.  1916,222. 

§§47,48,145.  1913,  758;  831,  §  IS.  1919.  113;  350,  §  69. 


Duties  of 
inspectors. 
1913,831,  §18. 


Section  76.    Inspectors  shall  visit  and  inspect  the  places  of  em-  1 

ployment  mentioned  in  sections  sixty  to  sixty-eight,  inclusive,  and  shall  2 

ascertain  whether  any  minors  are  employed  therein  contrary  to  said  3 

sections.    They  shall  report  to  the  school  authorities  any  cases  of  chil-  4 

dren  under  si.xteen  discharged  for  illegal  employment.     Any  person  may  5 

prosecute  violations  of  sections  sixty  to  seventy-four,  inclusive.  6 


Powers  of 

attendance 

officers. 

1913,  831,  §  19. 


Section  77.    Sections  sixty-nine  to  seventy-three,  inclusive,  relating  1 

to  minors  engaged  in  the  occupations  mentioned  in  section  sixty-nine,  2 

shall  be  enforced  by  school  attendance  officers,  who  are  hereby  vested  3 

with  full  police  powers  for  the  purpose,  and  by  police  officers.     The  4 

school  committee  of  each  city  may  appoint  or  designate  one  or  more  5 

special  attendance  officers  to  have  supervision  over  minors  engaged  6 

in  such  occupations  and  over  the  enforcement  of  said  sections. '  7 


Penalty  for 
violation  of 
statutes  as  to 
employing 
minors. 
1911,629,  §  2. 
1913,831,  §20. 


Section  78.    Whoever,  by  himself  or  for  others,  or  through  agents,  1 

servants  or  foremen,  employs,  induces  or  permits  any  minor  to  work  2 

contrary  to  any  provision  of  sections  sixty  to  seventy-four,  inclusive,  3 

shall,  except  as  provided  in  section  sixty-one,  be  punished  for  a  first  4 

offence  by  a  fine  of  not  less  than  ten  nor  more  than  fifty  dollars  or  by  im-  5 

prisonment  for  not  more  than  one  month,  or  both,  and  for  a  subsequent  6 

offence  by  a  fine  of  not  less  than  fifty  nor  more  than  two  hundred  dollars  7 

or  by  imprisonment  for  not  more  than  two  months,  or  both.    The  em-  8 

ployment  of  any  minor  in  violation  of  any  provision  of  said  sections,  9 

after  the  person  employing  such  minor  has  been  notified  thereof  in  10 


Ch.\P.    149.]  LABOR   .VND   INDUSTRIES.  1569 

11  writing  by  any  authorized  inspector  or  school  attendance  officer,  shall 

12  constitute  a  separate  offence  for  every  day  during  which  the  employ- 

13  ment  continues. 

1  Section  79.     Any   person   who   hinders   or   delavs   any   authorized  P«°f'ty  ^°T 

•  111  m  -1  !>■  i>i-i-  hiudenng  in- 

2  inspector  or  school  attendance  oincer  ui  the  periormance  oi  his  duties,  spectors.  etc. 

3  or  who  refuses  to  admit  to  or  locks  out  any  such  inspector  or  officer 

4  from  any  place  which  such  inspector  or  officer  is  authorized  to  inspect, 

5  or  who  refuses  to  give  to  such  inspector  or  officer  such  information  as 

6  may  be  required  for  the  proper  enforcement  of  sections  sixty  to  seventy- 

7  four,  inclusive,  shall  be  punished  by  a  fine  of  not  less  than  twenty-five 

8  nor  more  than  two  hundred  dollars  or  by  imprisonment  for  not  more 

9  than  two  months,  or  both. 

1  Section  SO.     Whoe\'er  furnishes  or  sells  to  any  minor  any  article  Penalty  for 

2  of  any  description  with  the  knowledge  that  the  minor  intends  to  sell  to'belifegaiiy^ 

3  such  article  in  violation  of  any  provision  of  sections  sixty-nine  to  seventy-  engag«Un°°™ 

4  three,  inclusive,  or  after  ha\'ing  recei\'ed  written  notice  to  this  effect  f9f3'83i''f22 

5  from  any  officer  charged  with  the  enforcement  thereof,  or  knowingly 

6  procures  or  encourages  any  minor  to  violate  any  provisions  of  said  sec- 

7  tions,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than 

8  two  hundred  dollars  or  by  imprisonment  for  not  more  than  two  months, 

9  or  both. 

1  Section  81.     Any   parent,    guardian   or  custodian   having   a   minor  Penalty  on 

2  under  his  control  who  compels  or  permits  such  minor  to  work  in  vio-  gSardfan%tc. 

3  lation  of  any  provision  of  sections  sixty  to  seventy-four,  inclusive,  or  I9i3,s3i,§23. 

4  knowingly  certifies  to  any  materially  false  statement  for  the  purpose  of 

5  obtaining  the  illegal  employment  of  such  minor,  shall  for  a  first  offence  be 

6  punished  by  a  fine  of  not  less  than  two  nor  more  than  ten  dollars  or  by 

7  imprisonment  for  not  more  than  five  days,  or  both;  and  for  a  subsequent 

8  offence  by  a  fine  of  not  less  than  five  nor  more  than  twenty-five  dollars 

9  or  by  imprisonment  for  not  more  than  ten  days,  or  both. 

1  Section  82.     i\.ny  inspector,  school  attendance  officer,  superintend-  ^^"^ais  °° 

2  ent  of  schools  or  other  person  authorized  to  issue  the  badges  required  i9i3,  sai.  §  24. 

3  by  section  seventy,  or  any  other  person  charged  with  the  enforcement 

4  of  any  of  the  provisions  of  sections  sixty  to  eighty-three,  inclusive,  who 

5  knowingly  violates  or  fails  to  comply  with  any  provision  of  said  sections, 

6  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  two  hun- 

7  dred  dollars  or  bv  imprisonment  for  not  more  than  two  months,  or 

8  both. 

1  Section  83.     Any  minor  who  engages  in  any  of  the  trades  or  occu-  Penalty  on 

2  pations  mentioned  in  section  sixty-nine  in  violation  of  any  pro\ision  of  igis.'sai, § 25. 

3  sections  sixty-nine,  seventy  or  seventy-two  to  seventy-four,  inclusi\-e, 

4  shall  for  the  first  offence  be  warned  by  the  officers  mentioned  in  section 

5  seventy-seven,  and  the  parent,  guardian  or  custodian  shall  be  notified. 

6  In  case  of  a  second  violation,  such  minor  may  be  arrested  and  dealt  with 

7  as  a  delinquent  child,  or,  if  over  seventeen,  shall  be  punished  by  a  fine 

8  not  exceeding  fifteen  dollars.     Upon  the  recommendation  of  the  principal 

9  or  chief  executive  officer  of  the  school  which  such  minor  attends,  or  upon 

10  the  complaint  of  any  school  attendance  officer,  police  officer  or  proba- 

11  tion  officer,  the  badge  of  any  minor  violating  any  provision  of  sections 


1570 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


seventy  to  seventy-three,  inclusive,  or  who  becomes  dehnquent  or  fails  12 

to  comply  with  all  legal  requirements  concerning  school  attendance,  13 

may  be  revoked  for  three  months  by  the  officer  issuing  the  same  and  14 

the  badge  taken  from  such  minor.     If  any  minor  refuses  to  surrender  1.5 

such  badge,  or  works  at  any  of  the  occupations  mentioned  in  section  1(5 

sixty-nine  after  notice  of  the  revocation  of  such  badge,  he  shall  be  deemed  17 

to  have  violated  section  seventy.  18 


Service  of  proc- 
ess for  violation 
of  sections  re- 
lating to  em- 
ployment of 
children. 
190fi,499,  §5. 
1900,514. 
§§  63,  145. 
191.1,  831, 
§2C. 


Section  84.     A  summons  or  warrant  issued  by  any  court  or  trial  1 

justice  having  jurisdiction  of  the  violation  of  any  provision  of  sections  2 

sixty   to   eighty-three,    inclusive,   or   sections   ninety   to   ninety-seven,  3 

inclusive,  may  be  served  at  the  direction  of  the  court  or  justice  by  an  4 

inspector  or  by  a  school  attendance  officer  or  by  any  officer  qualified  to  5 

serve  criminal  process.  6 


Application  of        SECTION  85.     Scctious  sixty  to  cightv-three,  inclusive,  shall  not  apply  1 

sections  60  to  .  .    ■'  ,1  1         i»/r  „ 

83,  inclusive,      to   the  juveiule  reiorinatories,  other  than  the  Massachusetts  reforma-  2 

1919!  35o!  §  56.  tory,  or  prevent  minors  of  any  age  from  receiving  manual  training  or  3 

(1919)  117.        industrial  education   in  or  in  connection  with  any  school  which  has  4 

duly  been  approved  by  the  school  committee  or  by  the  department  5 

of  education.  ^  6 


Employment  of 
children  under 
sixteen  with- 
out employ- 
ment certifi- 
cates, etc., 
forbidden. 
1836,  24.5,  S  1. 
1849,  220.  I  1. 
1855,  379. 
1858,  S3.  §  1. 
G.  S.  42,  §  1. 
1867,285,  §  1 
1876,  52,  S  2. 
1878,  237, 
§§  1,5. 
1880, 137. 
P.  S.  48, 
§5  2,  3. 
1888,348.  §  2, 
1892,352. 
1894.508, 
§§  14,69. 
1898,  494, 
U  2,  6. 
R.  L.  106, 
§§  29,  33. 
1906,  499. 
§§  4,6. 
1909,  514, 
Ǥ  57,  64,  145. 
1913,779, 
§§  15,22. 
1916,  95,  §  2. 
1919,  292,  §  12; 
350,  §§  56,  69. 


Section  86.     No  person  shall  employ  a  child  between  fourteen  and  1 

sixteen  or  permit  him  to  work  in,  about  or  in  connection  with  any  2 

factory,  workshop,  manufacturing,  mechanical  or  mercantile  establish-  3 

ment  unless  the  person  employing  him  procures  and  keeps  on  file,  ac-  4 

cessible  to  the  attendance  officers  of  the  town,  to  agents  of  the  depart-  5 

ment  of  education,  and  to  the  department  of  labor  and  industries  or  6 

its  authorized  agents  or  inspectors,  the  employment  certificate  issued  7 

to  such  child,  and  keeps  a  complete  list  of  the  names  and  ages  of  all  8 

such  children  employed  therein  conspicuously  posted  near  the  principal  9 

entrance  of  the   building  where   they   are   employed;    pro\ided,   that  10 

pupils  in  co-operative  courses  in  public  schools  may  be  employed  by  11 

any    co-operating    factory,    manufacturing,    mechanical    or   mercantile  12 

establishment   or   workshop    upon    securing    from    the    superintendent  13 

of  schools  a  special  certificate  covering  this  type  of  employment.     On  14 

termination  of  the  employment  of  a  child  whose  employment  certificate  15 

is  on  file,  said  certificate  shall  be  returned  by  the  employer  within  two  16 

days  after  said  termination  to  the  office  of  the  superintendent  of  schools  17 

or  school  committee  from  which  it  was  issued.    Any  person  who  retains  18 

an  emploATiient  certificate  contrary  to  this  section  shall  be  punished  19 

by  a  fine  of  not  less  than  ten  nor  more  than  one  hundred  dollars.  20 

Further  penalt.v,  §  90. 


Employment 
certificates. 
Lssue. 

1888,  348.  I  5. 
1894,  608,  I  19. 
1898,  494,  §  3. 
R.  L.  106,  §  ,30 
1905,  267,  §  2. 

1909,  514, 
«  58.  145. 

1910.  257,  §  3. 
1911,269,  §  11 
1913,  779,  §  16; 
805,  §§5,7. 
1914,316. 
1919,  62;  311. 
§§3  (2),  5. 


Section  87.     An  employment  certificate  shall  be  issued  only  by  the  1 

superintendent  of  schools  or  by  a  person  authorized  by  him  in  writing,  2 

or,  where  there  is  no  superintendent  of  schools,  by  a  person  authorized  3 

in  writing  by   the   school  committee  of  the  town  where  the  child  to  4 

whom  it  is  issued  resides  during  his  employment,  or,  if  the  child  resides  5 

outside  the  commonwealth,  of  the  town  where  the  child  is  to  be  em-  6 

ployed;    provided,   that  no  member  of  a  school   committee  or  other  7 

person  authorized  as  aforesaid  shall  have  authority  to  issue  such  cer-  8 

tificate  for  any  child  then  in  or  about  to  enter  such  person's  own  em-  9 

ployment  or  the  employment  of  a  firm  or  corporation  of  which  he  is  a  10 


Chap.  149.]  _    labor  and  industries.  1571 

11  member,  officer  or  employee.     If  an  employment  certificate  is  issued 

12  to   a  child    under  sixteen   authorizing   employment   in  a   town  other 

13  than  that  of  his  residence,  a  duplicate  thereof  shall  be  sent  forthwith  to 

14  the  superintendent  of  schools  of  the  town  where  the  employment  is 

15  authorized. 

16  The  person  issuing  an  employment  certificate  shall,  before  issuing 

17  it,    receive,    examine,    approve    and    file    the    following    papers,    duly 

18  executed: 

19  (1)  A  pledge  or  promise,  signed  by  the  employer  or  by  an  authorized 

20  manager  or  superintendent,  setting  forth  the  character  of  the  specific 

21  employment,  the  number  of  hours  per  day  during  which  the  child  is 

22  to  be  regularly  employed,  and  the  name  and  address  of  the  employer, 

23  in  which  pledge  or  promise  the  employer  agrees  to  employ  the  child  in 

24  accordance  with  this  chapter,  and  to  return  the  employment  certificate 

25  as  prov'ided  in  the  preceding  .section. 

26  (2)  The  school  record  of  such  child,  filled  out  and  signed  as  pro- 

27  vided  in  the  following  section,  except  when  such  record  may  be  waived 

28  thereunder. 

29  (3)  A  certificate,   signed  by  a  school  or  family  physician,  or  by  a 

30  physician  appointed  by  the  school  committee,  stating  that  the  child 

31  has  been  thoroughly  examined  by  said  physician,  and  in  his  opinion 

32  is  in  sufficiently  sound  health  and  physically  able  to  perform  the  work 

33  which  the  child  intends  to  do. 

34  (4)  Evidence  of  age,  showing  that  the  child  is  fourteen,  which  shall 

35  consist  of  one  of  the  following  proofs  of  age: 

36  (a)  A  birth  certificate,  or  a  duly  attested  transcript  thereof,  made 

37  by  a  registrar  of  vital  statistics  or  other  officer  charged  with  the  duty 

38  of  recording  births. 

39  {b)  A  baptismal   certificate,   or  a  duly  attested    transcript  thereof, 

40  showing  the  age  and  date  of  baptism  of  the  child. 

41  (c)   If  none  of  the  aforesaid  proofs  of  age  is  obtainable,  and  only  in 

42  such  case,  the  person  issuing  employment  certificates  may  accept  in 

43  lieu  thereof  a  passport  or  a  duly  attested  immigration  record,  or  tran- 

44  script  thereof,  showing  the  age  of  the  child,  or  other  official  or  religious 

45  record  of  the  child's  age;    provided,  that  it  shall  appear  to  the  satis- 

46  faction  of  said  person  that  the  same  is  good  and  suflScient  evidence  of 

47  the  child's  age. 

48  (d)  If  none  of  the  aforesaid  proofs  of  age  is  obtainable,  and  only  in 

49  such  case,  the  person  issuing  employment  certificates  may  accept  in 

50  lieu  thereof  a  record  of  age  as  given  on  the  register  of  the  school  which 

51  the  child  first  attended  in   the  commonwealth;    provided,  that  such 

52  record  was  kept  for  at  least  two  years  during  the  time  when  such  child 

53  attended  school. 

54  (e)   If  none  of  the  aforesaid  proofs  of  age  is  obtainable,  and  only  in 

55  such  case,  the  person  issuing  employment  certificates  may  receive  the 

56  signed  statement  of  the  school  physician,  or  of  the  physician  appointed 

57  by  the  school  committee,  stating  that  after  examination  it  is  the  opinion 

58  of  such  physician  that  the  child  is  at  least  fourteen.     Such  physician's 

59  statement  shall  be  accompanied  by  a  statement  signed  by  the  child's 

60  parent,  guardian  or  custodian,  or,  if  such  child  has  no  parent,  guardian 

61  or  custodian,  by  the  signed  statement  of  the  next  adult  friend.     Such 

62  signed  statement  shall  contain  the  name,  date  and  place  of  birth  and 

63  residence  of  the  child,  and  shall  certify  that  the  parent,  guardian,  cus- 

64  todian  or  next  friend  signing  it  is  unable  to  produce  any  of  the  proofs 


1572 


LABOR    AND    INDUSTRIES. 


[Chap.  149. 


of  age  specified  in  this  section.  Such  statement  shall  be  so  signed  in  the  65 
presence  of  the  person  issuing  the  employment  certificate.  The  person  66 
issuing  emplojTnent  certificates  may,  before  issuing  a  certificate,  re-  67 
quire  the  parent,  guardian,  custodian,  or  next  adult  friend  of  the  child  68 
to  appear  and  approve  in  WTiting  the  issuance  of  said  certificate.  69 

A  certificate  relating  to  the  age  or  place  of  birth  of  any  child  or  to  70 
any  other  fact  sought  to  be  established  in  relation  to  school  attendance  71 
shall  be  issued,  upon  request,  by  a  town  clerk,  and  no  fee  shall  be  72 
charged  therefor  by  a  town  clerk  or  other  official.  73 

The  superintendent  of  schools  or  a  person  authorized  by  him  in  74 
writing  may  revoke  the  employment  certificate  or  home  permit  of  any  75 
child  failing  to  attend  a  continuation  school  or  course  of  instruction  76 
when  so  required  by  sections  twenty-two  and  twenty-five  of  chapter  77 
seventy-one.  Whenever  such  a  certificate  authorizing  employment  of  a  78 
child  elsewhere  than  in  his  place  of  residence  is  held  by  him  the  super-  79 
intendent  of  schools  of  the  town  of  his  employment  shall  forthwith  80 
notify  the  superintendent  of  schools  issuing  the  certificate  of  the  child's  81 
failure  to  comply  with  said  section  twenty-two.  82 


School  record 
required  for 
employment 
certificate, 
issue  of. 
1S9S.  494,  §  4. 
R.  L.  106.1  31. 
1904,432. 
190.5,213. 
1907,224. 
1909.514, 
5S59,  145. 
1913,779,5  17. 
1914,580. 
1916,66. 
1919,  292,  §  13. 


Section  88.  The  school  record  required  by  the  preceding  section  1 
shall  be  filled  out  and  signed  by  the  principal  or  teacher  in  charge  of  2 
the  school  which  the  child  last  attended,  and  shall  be  furnished  only  to  3 
a  child  who,  after  due  examination  and  investigation,  is  found  to  be  4 
entitled  thereto.  Said  school  record  shall  state  the  grade  last  com-  5 
pleted  by  such  child  and  the  studies  pursued  in  completion  thereof.  It  6 
shall  state  the  number  of  days  during  which  such  child  has  attended  7 
school  during  the  twelve  months  next  preceding  the  time  of  application  8 
for  said  school  record.  It  shall  also  gi^•e  the  name,  date  of  birth,  and  9 
the  residence  of  the  child  as  shown  on  the  records  of  the  school  and  the  10 
name  of  the  parent,  guardian  or  custodian.  If  the  school  record  is  not  11 
obtainable  from  the  principal  or  teacher  in  charge  of  the  school  which  12 
such  child  last  attended,  the  requirement  of  a  school  record  may  be  13 
waived.  14 

No  such  school  record  shall  be  issued  or  accepted  and  no  employ-  15 
ment  certificate  granted  unless  the  child  possesses  the  educational  16 
qualifications  described  in  section  one  of  chapter  seventy-six;  provided,  17 
that  a  child  over  fourteen  who  does  not  possess  such  cjualifications  may  18 
be  granted  a  limited  employment  certificate  good  only  on  days  when  19 
school  is  not  in  session.  20 

No  such  school  record  shall  be  issued  or  accepted  unless  the  child  has  21 
regularly  attended  the  pubHc  or  other  lawfully  approvetl  schools  for  22 
not  less  than  one  hundred  and  thirty  days  after  becoming  thirteen;  23 
provided,  that  the  school  record  may  be  accepted  in  the  case  of  a  person  24 
who  has  been  an  attendant  at  a  public  day  or  other  lawfully  approved  25 
school  for  a  period  of  not  less  than  seven  years,  if  in  the  opinion  of  the  26 
superintendent  of  schools  such  person  is  mentally  incapable  of  acquiring  27 
the  educational  qualifications  herein  prescribed;  and  provided,  further,  28 
that  the  superintendent  may  suspend  this  requirement  in  any  case  29 
when  in  his  opinion  the  interests  of  the  child  will  best  be  served  thereby.       30 


Spfoymen't  SECTION  89.     The  employment  certificate  required  under  this  chap-     1 

ils*8^34s*'        *^^  shall  state  the  name,  sex,  date  and  place  of  birth  and  the  place  of    2 
5§4. 9.  residence  of  the  child,  and  describe  the  color  of  his  hair  and  eyes  and     3 


Chap.  149.]  labor  and  industries.  1573 

4  any  distinguishing  facial  marks.     It  shall  certify  that  the  child  named  Jgg^'gos'^ '' 

5  in  such  certificate  has  personally  appeared  before  the  person  issuing  fy/'A*-*"-- 

6  the  certificate  and  has  been  examined,  and,  except  in  the  case  of  a  §§  s.'o. 

7  limited  certificate,  found  to  possess  the  educational  qualifications  de-  1009]  514,' 

8  scribed  in  section  one  of  chapter  seventy-six,  and  that  all  the  papers  re-  ilio!'257!'§  4. 

9  quired  by  section  eighty-seven  have  been  duly  examined,  approved  and  l9l4;3[6.' ^ '*' 

10  filed  and  that  all  the  conditions  and  requirements  for  issuing  an  employ-  4  0^'i^G\o''' 

11  ment  certificate  have  been  fulfilled.     It  shall  state  the  grade  last  com- 

12  pleted  by  said  child.    Every  such  certificate  shall  be  signed  in  the  pres- 

13  ence  of  the  person  issuing  the  same  by  the  child  in  whose  name  it  is 

14  issued.     It  shall  state  the  name  of  the  employer  for  whom,  and  the 

15  nature  of  the  employment  in  which,  the  certificate  authorizes  the  child 

16  to  be  employed.    It  shall  bear  a  number,  show  the  date  of  its  issue  and  be 

17  signed  by  the  person  issuing  it.    No  fee  shall  be  exacted  by  a  town  clerk 

18  or  other  official  for  an  employment  certificate  or  for  any  paper  required 

19  by  sections  eighty-seven  to  ninety-five,  inclusive.    No  duplicate  employ- 

20  ment  certificate  shall  be  issued  until  it  shall  appear  to  the  satisfaction 

21  of  the  person  authorized  to  issue  certificates  that  the  original  has  been 

22  lost.    A  record  giving  all  the  facts  contained  on  every  employment  certifi- 

23  cate  issued  shall  be  filed  in  the  oflSce  issuing  tlie  same,  together  with  the 

24  papers  required  by  section  eighty-seven.    A  record  shall  also  be  kept  of 

25  the  names  and  addresses  of  all  children  to  whom  certificates  have  been 

26  refused,  together  with  the  names  of  the  schools  which  said  children 

27  should  attend  and  the  reasons  for  refusal.    All  the  aforesaid  records  and 

28  papers  shall  be  preserved  until  such  children,  if  living,  have  become 

29  sixteen.     Such  records  and   statistics  concerning  the  issuance  of  em- 

30  ployment  certificates  as  may  be  prescribed  by  the  department  of  educa- 

31  tion  shall  be  kept,  and  shall  be  open  to  the  mspection  of  said  department, 

32  its  officers  or  agents.    The  blank  certificates  and  other  papers  required  in 

33  connection  with  the  issuing  of  emplo^-ment  certificates  and  educational 

34  certificates  under  this  chapter  shall  be  furnished  to  the  local  school 

35  committees  by  the  department  of  labor  and  industries,  by  which  they 

36  shall  be  prepared  after  conference  with  the  department  of  education 

37  and  the  approval  of  the  forms  thereof  by  the  attorney  general.     Said 

38  certificates  and  papers  may  bear  explanatory  matter  necessary  to  facili- 

39  tate  the  enforcement  of  this  chapter  or  to  comply  with  future  legislative 

40  requirements. 

1  Section  90.     Wlioever   employs  a  child  under  sixteen,  or  whoever  Penalties  for 

2  procures,  or,  having  under  his  control  a  child  under  sixteen,  permits  ment  d'cEif-''" 

3  him  to  be  employed  in  violation  of  section  eighty-six,  shall  be  pun-  si^teen^altering 

4  ished  by  a  fine  of  not  less  than  ten  nor  more  than  fifty  dollars  or  cerUfiraTe.'etc. 

5  by  imprisonment   for  not  more  than  one  month;   and  whoever  con-  JUg'Po'll 

6  tinues  to  employ  a  child  under  sixteen  in  violation  of  said  section,  after  isss!  ss,  §  2. 

7  being  notified  thereof  by  a  school  attendance  officer  or  b'S'  an  inspector,  lioi.  285,  §  3. 

8  shall  for  every  day   thereafter  while   such   employment   continues  be  p.  s.'48.'5§i,'4; 

9  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  two  hundred  JHf;  llt[  §  1. 

10  dollars  or  by  imprisonment  for  not  more  than  two  months;    and  who-  Jsgf,' soli  I iv. 

11  ever  forges,  or  procures  to  be  forged,  or  assists  in  forging  a  certificate  r^lIos  §33 

12  of  birth  or  other  evidence  of  the  age  of  such  child,  and  whoe\er  presents  '^o'''*^^' 

13  or  assists  in  presenting  a  forged  certificate  or  evidence  of  birth  to  the  1909.514. 

14  superintendent  of  schools  or  to  a  person  authorized  by  law  to  issue  i9io.'249.' 

15  certificates,  for  the  purpose  of  fraudulently  obtaining  the  employment  \l\l]  70^'  *  '^' 

16  certificate  required  by  section  eighty-six,  shall  be  punished  by  a  fine  of  209  Mass.  489. 


1574 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


not  less  than  ten  nor  more  than  five  hundred  dollars  or  by  imprison-  17 

ment  for  not  more  than  one  year,  or  both.    \Vhoe\'er,  being  authorized  18 

to  sign  an  employment  certificate,  knowingly  certifies  to  any  materially  19 

false  statement  therein  shall  be  punished  by  a  fine  of  not  less  than  ten  20 

nor   more   than   two   hundred   dollars.     Whoever,   without   authority,  21 

alters  an  employment  certificate  after  the  same  is  issued  shall  be  pun-  22 

ished  by  a  fine  of  ten  dollars.  2.3 


Employer  to 
discharge  child 
who  does  not 
attend  a  con- 
tinuation 
school  if  re- 
quired to  do  so. 
1913,805,  §  6. 
1919.311,  §  4. 


Section  91.     The   employer   of   any   minor   between   fourteen   and  1 

sixteen  who  is  required  by  section  twenty-two  of  chapter  seventy-one  2 

to  attend  a  continuation  school  or  course  of  instruction  shall  cease  .3 

forthwith  to  employ  such  minor  when  notified  in  writing  by  the  superin-  4 

tendent  of  schools,  or  by  his  representative  duly  authorized  in  writing,  5 

having  jurisdiction  over  such  minor's  attendance,  of  his  non-attendance  G 

in  accordance  with  said  section.    An  employer  failing  to  comply  with  7 

this  section  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  S 

than  one  hundred  dollars.  9 


Duties  of 
attendance 
olBcers  and 
inspectors  in 
regard  to  illegal 
employment  of 
children- 
1878,  257,  I  3. 
P.  S.  48,  §  6. 
1888,348.  §  8. 
1894,  508.  §  23. 
1898,  494,  §  8. 
R.  L.  1011,  §  34. 
1900,  499.  §  2. 
1909,514. 
§§  62,  145. 
1913.  779,  §  20. 
1919,  350,  §  69. 

Penalty,  §  180. 


Section  92.  Attendance  officers  may  visit  the  factories,  workshops,  1 
manufacturing,  mechanical  and  mercantile  establishments,  theatres,  2 
and  places  of  public  exhibition  in  their  se\eral  towns,  and  ascertain  3 
whether  any  children  are  employed  therein  contrary  to  this  chapter,  4 
and  shall  report  in  writing  any  cases  of  such  illegal  emplojTiient  to  the  5 
superintendent  of  schools  or  the  school  committee  and  to  the  depart-  6 
ment  or  its  authorized  officers  or  agents.  Inspectors  shall  visit  all  7 
factories,  workshops,  manufacturing,  mechanical  and  mercantile  estab-  8 
lishments  within  their  respective  districts,  and  ascertain  whether  any  9 
children  are  employed  therein  contrary  to  this  chapter,  and  shall  enter  10 
complaint  against  whome\'er  is  found  to  have  violated  any  of  its  pro\i-  11 
sions.  No  inspector  shall  knowingly  or  wilfully  violate  any  provision  12 
of  this  section.  13 


Further  duties 
of  attendance 
officers. 
1906,  499.  ^  3. 
1909.514, 
§§  63,  145 
1913.779.  §  21. 

Penalty.  §  ISO. 


Educational 
certificates, 
etc..  to  be 
shown  on  re- 
quest of 
officials. 
1878,  257,  5  3. 
P.  S.  48,  i  6. 
1888.  348, 
5§8,9. 
1894,508, 
§§  23,  07. 


Section  93.     An    attendance   oflncer   shall   apprehend   and   take   to  1 

school,  without  a  warrant,  any  minor  employed  in  any  factory,  work-  2 

shop,   manufacturing,   mechanical   or   mercantile   establishment,   or  in  3 

any  theatre  or  place  of  public  exhibition  contrary  to  this  chapter;  and  4 

such  attendance  officer  shall  forthwith  report  to  the  district  court  or  5 

trial  justice  within  whose  judicial  district  the  illegal  employment  occurs  6 

the  evidence  in  his  possession  relating  to  the  illegal  employment  of  any  7 

minor  so  apprehended,  and  shall  make  complaint  against  whomever  8 

the  court  or  trial  justice  may  direct.    No  attendance  officer  shall  know-  9 

ingly  and  wilfully  violate  any  provision  of  this  section.  10 

Section  94.     Inspectors,    agents    of    the    department    of    education  1 

and  attendance  officers  may  require  that  the  employment  or  educational  2 

certificates  and  lists  of  minors  employed  in  factories,  workshops,  manu-  3 

facturing,  mechanical  or  mercantile  establishments  shall  be  produced  4 

for  their  inspection.     A  failure  so  to  do  upon  request  shall  be  prima  5 

facie  evidence  of  the  illegal  employment  of  any  minor  whose  certificate  6 

is  not  produced  or  whose  name  is  not  so  listed.  7 

1S98,  494,  §§  6.  8.  1906,  499,  5§  4,6.  1913,  779,  |  22. 


R.  L.  106,  §§  33.  34. 


1909,514, 


I  4,6. 
I  64.  145. 


1919,  350,  §  56. 


Educational 
certificates  for 
minors  be- 
tween sixteen 


Section  95.     No  minor  over  sixteen  and  under  twenty-one  shall  be     1 
employed  in  a  factory,  workshop,  manufacturing,  mechanical  or  mer-    2 


Ch.\P.    14:9.]  LABOR    AND    INDUSTRIES.  1575 

3  cantile   establishment,   except  as  provided    for  pupils  in  co-operative  md  twenty- 

4  courses,  unless  his  employer  procures  and  keeps  on  file  an  educational  iss?,  433,  §  2. 

5  certificate  showing  the  age  of  the  minor  and  his  ability  or  inability  to  issn!  135:  ^  ^' 

6  reatl  and  write  as  hereinafter  provided.    Such  certificates  shall  be  issued  j|g];  5^^; 

7  by  the  person  authorized  by  section  eighty-seven  to  issue  employment  f^glj^g^ 

8  certificates.     The  person  authorized  to  issue  such  educational  certifi- Me.'^^^' 

9  cates  shall,  so  far  as  practicable,  require  the  proof  of  age  stated  in  said  §§  33, 35.' 

10  section.     He  shall  examine  the  minor  and  certify  whether  or  not  he  loofiUgg] 

11  possesses   the   educational    qualifications   described    in   section   one   of  iIos.sh, 

12  chapter  seventy-six.    Every  such  certificate  shall  be  signed,  in  the  pres-  flis^Vra, '"' 

13  ence  of  the  person  issuing  it,  by  the  minor  in  whose  name  it  is  issued.       fgil^'g^s^  §  3, 

14  Everv  emnlover  of  such  minors  shall  keep  their  educational  certifi-  ^    ^ 

•'  f,      •'  _,  .  ,     .'  .  .  ,    Further 

15  cates  accessible  to  any  officer  mentioned   in  section   ninety-two  and  penalty,  §97. 

16  shall  return  said  certificates  to  the  office  from  which  they  were  issued 

17  within  two  days  after  the  date  of  the  termination  of  the  employment  of 

18  said  minors.     If  the  educational  certificate  of  any  minor  o\er  sixteen 

19  and  under  twenty-one  fails  to  show  that  said  minor  possesses  the  edu- 

20  cational  qualifications  described  in  section  one  of  chapter  seventy-six, 

21  no  person  shall  employ  such  minor  while  a  public  evening  school  is  main- 

22  tained  in  the  town  where  the  minor  resides,  unless  such  minor  is  a  regular 

23  attendant  at  such  evening  school  or  at  a  day  school  and  presents  to  his 

24  employer  each  week  a  school  record  of  such  attendance.     When  such 

25  record  shows  unexcused  absences,  such  attendance  shall  be  deemed  to 

26  be  irregular  and  insufficient.    The  person  authorized  to  issue  educational 

27  certificates,  or  teachers  acting  under  his  authority,  may,  however,  excuse 

28  justifiable  absence.    Whoever  retains  an  educational  certificate  contrary 

29  to  this  section  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more 

30  than  one  hundred  dollars. 

1  Section  96.     Sections  eighty-six  to  ninety-five,  inclusive,  shall   not  f^^.P^J^^'^'^^g^"' 

2  pre\'ent  children  of  any  age  from  recei\'ing  manual  training  or  Indus-  95  inriusive.^^ 

3  trial  education  in  or  in   connection   with   any  school   in  the   common-  1919!  356!  §  se! 

4  wealth  duly  approved  by  the  local  school  committee  or  by  the  depart- 

5  ment  of  education. 

1  Section  97.     Whoever   employs    a   minor   in    violation    of   section  j'l'™'^',*^  _'",^^^, 

2  ninetv-five  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  niMt  Jf  miii<:.r 

„     1    ,,     •  ^     „,„  without  educit- 

3  dollars.  ISS?.  433,  §  2.  1889,  135.  1891,  317.  tional  certifi- 

1894,  508,  §  70.  R.  L.  108,  §  35.  1909,  614,  «  66,  145.  ^ate. 

1898,  494,  §  7.  1902,  183.  1913,  779,  §  23. 

1  Section  98.    A  parent,  guardian  or  custodian  who  permits  a  minor  Penalty  on 

2  to  be  employed  in  violation  of  section  ninety-five  shall  be  punished  allowing" minor 

3  by  a  fine  of  not  more  than  twenty  dollars.    Fines  imposed  under  this  w.thouTcduca-'' 

4  and  the  preceding  section  shall  enure  to  the  use  of  the  evening  schools  ^'^°^^'  ''^''■''^- 

5  of  the  town  where  the  violation  occurs. 

1887,  433,  §  2.  1894,  508,  §  70.  1902,  183. 

1.S89,  135.  1898,  494,  §  7.  1909,  514,  §§  66,  145. 

1891,  317.  li.  L.  106,  §  35.  1913,  779,  §  23. 

1  Section  99.     W^omen  and  children,  five  or  more  in  number,  who  are  Hours  for 

2  employed  in  the  same  factory  shall  be  allowed  their  mealtimes  at  the  women °md 

3  same  hour,  except  that  any  such  persons  who  begin  work  in  such  factory  5887,1"5,  §  i. 

4  at  a  later  hour  in  the  morning  than  other  such  persons  employed  therein  ^^^fj  "^f  1 1^; 

5  may  be  allowed   their   mealtimes   at  a  different   hour;    but   no   such  If^j^^}^ 

6  persons  shall  be  employed  during  the  regular  meal  hour  in  tending  the  210  Mass.  387, 


1576  LABOR   AND   INDUSTRIES.  [ChAP.    149. 

machines  or  doing  the  work  of  any  other  women  or  children  in  addition  7 

to  their  own.  8 

ilsytlis'^'^''        Section  100.     No  child  or  woman  shall  be  employed  for  more  than  1 

i894'.5os,         s'^  hours  at  one  time  in  a  factory  or  workshop  in  which  five  or  more  2 

R  £''106          ^^'-"'^  persons  are  employed  without  an  interval  of  at  least  forty-five  3 

lim'sii         minutes  for  a  meal;   but  such  child  or  woman  may  be  so  employed  for  4 

§§68.71,' 145.    not  more  than  six  and  one  half  hours  at  one  time  if  such  employment  5 

ends  not  later  than  one  o'clock  in  the  afternoon  and  if  he  or  she  is  then  6 

dismissed  from  the  factory  or  workshop  for  the  remainder  of  the  day;   or  7 

for  not  more  than  seven  and  one  half  hours  at  one  time  if  he  or  she  is  8 

allowed  sufficient  opportunity  for  eating  a  lunch  during  tlie  continuance  9 

of  such  employment,  and  if  such  employment  ends  not  later  than  two  10 

o'clock  in  the  afternoon,  and  he  or  she  is  then  dismissed  from  the  factory  11 

or  workshop  for  the  remainder  of  the  day.    An  employer,  superintendent,  12 

overseer  or  agent  who  violates  any  provision  of  this  or  the  preceding  13 

section  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  14 

one  hundred  dollars.  1.5 

Application  of        SECTION  101.     The  two  preceding  sections  shall  not  applv  to  iron  1 

the  two  preced-  -ii       i  i  i-    i  "^^    .' 

'"^S'=?,''?°| .     works,  glass  works,  paper  mills,  letterpress  establishments,  print  works,  2 

1S94.' 508',  §  28.  blcacliing  works  or  dveing  works;   and  the  department,  if  it  is  proved  to  3 

isJosiisM,'    '  ■  its  satisfaction  that  in  any  other  class  of  factories  or  workshops  it  is  4 

ili2!'726%  5.    necessary,  by  reason  of  the  continuous  nature  of  the  processes  or  of  5 

1919,350,  §69.  special  circumstances  affecting  .such  class,  to  exempt  it  from  the  two  6 

preceding  sections  and  that  such  exemption  can  be  made  without  injury  7 

to  the  health  of  the  women  or  children  affected  thereby,  may,  with  the  8 

appro\'al  of  the  governor,  issue  a  certificate  granting  such  exemption,  9 

public  notice  whereof  shall,   without   expense  to  the    commonwealth,  10 

be  given  in  the  manner  directed  by  said  department.  11 

nie°Ii'time''""°°      SECTION  102.     If  a  Hiiuor  or  a  woman   shall,   without  the  orders,  1 

edge™'super-    conscut  or  knowledge  of  the  employer  or  of  the  superintendent,  over-  2 

issylfi's' I's-    ^^^^  ^^  other  agent  of  the  employer,  labor  in  a  manufacturing  or  me-  3 

280. '§1;  '336. '    chanical  establishment,  factory  or  workshop  during  a  part  of  any  time  4 

§§  U.29.'         allowed  for  meals  in  such  establishment,  factory  or  workshop,  according  5 

1909!  514.'       '  to  the  notice  required  by  section  fifty-six,  and  if  a  copy  of  such  notice  6 

§§  <o,  145.        ^^.^^  posted  in  a  conspicuous  place  in  the  room  where  such  labor  was  7 

performed,  with  a  rule  of  the  establishment,  factory  or  workshop  for-  8 

bidding  such  minor  or  woman  to  labor  during  such  time,  neither  the  9 

employer  nor  a  superintendent,  overseer  or  other  agent  of  the  employer  10 

shall  be  held  responsible  for  such  labor.  11 

'wmfei^and           SECTION  103.     \Mioever  cmploys  women  or  children  in  any  manu-  1 

iss2!^i50,  §  1.    facturing,    mechanical   or   mercantile    establishment   shall   provide   for  2 

§1^36*7'?'         *'^^""  ^^^  ^^^'^  permit  them  to  use  suitable  seats  whenever  they  are  not  3 

R- L.'iols,  §  41.  necessarily  engaged  in  the  active  duties  of  their  emplo\nnent,  and  shall  4 

§§  72, 145.        also  pro\-ide  for  their  use  and  permit  them  to  use  suitable  seats  while  5 

"'  **           at  work,  except  when  the  work  cannot  properly  be  performed  in  a  sitting  6 

position.    Whoever  violates  this  section  shall  be  punished  by  a  fine  of  7 

not  less  than  ten  nor  more  than  thirty  dollars.  8 

nhetn^Hor^^'       Section  104.     No  person  shall  employ,  exliibit  or  sell,  apprentice  or  1 

apprar'in"         give  away,  a  child  under  fifteen  for  the  purpose  of  employing  or  ex-  2 


Chap.  149.]  labor  and  industries.  1577 

3  hibiting  him  in  dancing  on  the  stage,  playing  on  musical  instruments,  theatrical  cxhi- 

,       .       .  ,1  .  •  ■  ]•  s  ■  A.     bitions.  etc. 

4  smging,  walkmg  on  a  wire  or  rope,  or  riding  or  periorming  as  a  gymnast,  is7j.  172. 

5  contortionist  or  acrobat  in  a  circus,  theatrical  exhibition  or  in  any  public  isgi.Ms!  *' 

6  place,  or  cause,  procure  or  encourage  such  child  to  engage  therein;    but  i89s^'3g4 

7  this  section  shall  not  prevent  the  education  of  children  in  vocal  and  f^^-  Jo]''  i  ^'^• 

8  instrumental  music  or  dancing  or  their  employment  as  musicians  in  a  .|K%"'^,<, 

9  church,  chapel,  school  or  school  exhibition,  or  prevent  their  taking  part  ~ 

10  in  any  festi\'al,  concert  or  musical  exhibition  upon  the  special  written 

11  permission  of  the  aldermen  or  selectmen.     Whoever  violates  this  section 

12  shall  be  punished  by  a  fine  of  not  more  than  two  hundred  dollars  or  by 
1.3  imprisonment  for  not  more  than  six  months. 

1  Section  105.     A  license  shall  not  be  granted  for  a  theatrical  exhibi-  License  not  to 

2  tion  or  public  show  in  which  children  under  fifteen  are  employed  as  exhibitions  in 

,-,  .       ,  ,        J  •        •    J  •  !•       J  p  , .  ,    -*       ■  which  children 

.j  acrobats  or  contortionists  or  in  any  reats  01  gymnastics  or  equestrianism,  under  fifteen 

4  or  in  which  such  children  attending  the  public  schools  are  employed  or  1874.^279! 

5  allowed  to  take  part  as  performers  on  the  stage  in  any  capacity,  or  if,  Rs*.'4f,§9. 

6  in  the  opinion  of  the  board  authorized  to  grant  licenses,  such  children  J*®^'  lot',  f  4" 

7  are  employed  in  such  a  manner  as  to  corrupt  their  morals  or  impair  Is^v-^us 

8  their  health;  but  this  section  shall  not  prevent  granting  the  special  per- 

9  mission  authorized  by  the  preceding  section. 

PROVISIONS   as   to   health   AND   SAFETY. 

1  Section  lOG.     All  industrial  establishments  shall  provide  fresh  and  PQlJo'^Jiov"'"''*^''' 

2  pure  drinking  water  to  which  their  employees  shall  have  access  during  '^ot!  5,^7.  §  5. 

3  working  hours.     Any  person  owning,  in  whole  or  in  part,  managing,  « 78, 145. 

4  controlling  or  superintending  any  industrial  establishment  in  which  this    "  '^' 

5  section  is  violated  shall,  on  the  complaint  of  the  local  board  of  health, 

6  the  selectmen  of  a  town  or  an  inspector,  be  punished  by  a  fine  of  one 

7  hundred  dollars. 

1  Section  107.     The   water   used   for   humidifying   purposes   bj'   any  water  for 

2  person  operating  a  factory  or  workshop  shall  be  of  sucli  a  degree  of  1908,325',"* 

3  purity  as  not  to  give  rise  to  any  impure  or  foul  odors,  and  shall  be  so  ^^  ^'  ^' 

4  used  as  not  to  be  injurious  to  the  health  of  persons  employed  in  such 

5  factories  or  workshops.    Whoever  violates  this  section  shall  be  punished 

6  by  a  fine  of  not  less  than  ten  nor  more  than  one  thousand  dollars. 

1  Section  108.     In  every  weaving  and  spinning  department  in  a  textile  Thermometers 

2  factory  wherein  water  is   introduced    for  humidifying  purposes   there  humfdity^ 

3  shall  be  provided,  maintained  and  kept  in  correct  working  order,  for  {olS'tloifs: 

4  the  purpose  of  recording  and  regulating  the  humidity  of  the  atmosphere  '"'"•  ^^°'  ^  '^^■ 

5  and  the  temperature,  at  least  one  set  of  standardized  wet  and  dry  bulb  Penalty,  §  112. 
()  thermometers,  and,  if  requu-ed  by  an  inspector,  two  sets  of  such  ther- 

7  mometers,  and  the  following  regulations  shall  be  observed  in  their  use: 

8  (a)  The  thermometers  shall  be  placed  as  directed  or  sanctioned  by  an 

9  inspector,  and  be  plainly  visible  to  the  workers,     (b)  The  occupier  or 

10  manager  or  person  for  the  time  being  in  charge  of  the  weaving  or  spin- 

11  ning  department  shall  read  the  thermometers  thrice  in  the  day,  namely, 

12  between  seven  and  eight  o'clock  in  the  forenoon,  between  ten  and  eleven 

13  o'clock  in  the  forenoon  and  between  three  and  four  o'clock,  except  in 

14  rooms  lighted  by  gas,  and  then  between  four  and  five  o'clock,  in  the 

15  afternoon  of  e\ery  day  when  persons  are  employed   in  any  weaving 


1578 


LABOR   AND   INDUSTRIES. 


[CH.\P.    149. 


or  spinning  department,  and  he  shall  record  the  readings  of  each  ther-  16 
mometer  in  such  department  at  each  of  the  said  times  upon  a  form  17 
provided  therefor,  which,  together  with  the  regulations  relating  thereto,  18 
shall  be  furnished  by  the  department  of  labor  and  industries.  The  19 
records  of  the  readings  shall  not  be  destroyed  until  the  inspector  in  20 
whose  district  the  factory  is  situated  has  examined  them  and  given  his  21 
consent  to  their  destruction.  22 


Section  109.     The    preceding    section    shall    not    apply    to    textile 
factories  ecjuipped  with  such  a  number  and  type  of  standardized  self- 


Section  108 

not  applicable 

to  textile 

factories  ... 

equipped  with    registering    hygrometers,    or    psychrometers,    or    such    a    hygrometric 

otherapproved         "  o         *.  tD  x.  .o 

testing  devices. 

1010,543, 

H2,3. 

1912,726,  §5. 

1919.  350,  §  69. 


system  as  the  department  appro\'es,  or  using  the  sling  hygrometer 
frequently  to  determine  the  actual  moisture  and  temperature  of  the 
weaving  or  spinning  department;  provided,  that  the  manner  of  using 
all  such  instruments  or  such  system  is  approved  by  the  industrial  health 
inspector  in  whose  district  the  factory  is  situated,  and  that  the  records 
of  the  readings  from  said  instruments  or  system  are  not  destroyed  with- 
out the  knowledge  and  consent  of  such  inspector. 


1 
2 

3 
4 
5 

6 
7 
8 
9 
10 


Limits  of 

humidity. 
1910,543,  §  4, 


Section  110.    No  owner,   occupier  or  manager  or  person  for  the 
time  being  in  charge  of  a  textile  factory  shall  permit  the  relative  hu- 
Pcnaity,  §  112.  midity  in  a  weaving  or  spinning  department  in  the  textile  factory  under 
his  control  to  exceed  the  following  limits: 


I. 

II. 

III 

I. 

II. 

III. 

Dry  Bulb 

Wet  Bulb 

Dry  Bulb 

Wet  Bulb 

Thermometer 

Thermometer 

Percentage 

Thermometer 

Thermometer 

Percentage 

Readings. 

Readings. 

of 

Readings. 

Readings. 

of 

Desrees 

Degrees 

Humidity. 

Decrees 

Degrees 

Humidity. 

Fahr. 

Fahr. 

Fahr. 

Fahr. 

60 

58 

88 

78 

73.5 

77 

61 

59 

88 

79 

74.5 

77.5 

62 

60 

88 

80 

75.5 

77.5 

63 

61 

88 

81 

76 

76 

64 

62 

88 

82 

76.5 

74 

65 

63 

88 

83 

77.5 

74 

66 

64 

88 

84 

78 

72 

67 

65 

88 

85 

79 

72 

68 

66 

88 

86 

80 

72 

69 

67 

88 

87 

80,5 

71 

70 

68 

88 

88 

SI. 5 

71 

71 

68.5 

85.5 

89 

.82.5 

71 

72 

69 

84 

90 

83 

69 

73 

70 

84 

91 

.S3. 5 

68 

74 

70.5 

81.5 

92 

84-5 

68 

75 

71.5 

81.5 

93 

85.5 

68 

76 

72 

79 

94 

86 

66 

77 

73 

79 

95 

87 

66 

Sources  of 
water  for 
humidifying. 
1910.  543,  §  5. 
1912,  726  §  5. 
1919,  350,  §  69. 

Penalty,  §  112, 


Section  111.     Water   used   for   humidifying   purposes   in   a   textile  1 

factory  shall  be  taken  either  from  a  public  suppK'  of  drinking  water,  or  2 

from  some  other  source  of  pure  water,  or  from  a  supply  of  water  which,  3 

although  in  the  opinion  of  the  department  not  suitable  for  drinking  4 

purposes,  is  sufficiently  free  from  impurities  to  be  not  dangerous  to  5 

the  health  of  employees  when  used  for  humidifying  puri)oses;    aiul  all  6 

ducts  for  the  introduction  or  distribution  of  humidified  air  shall  be  7 

kept  clean.  8 


Section  112.    ^Yhoever  fails  to  comply  with  any  provision  of  sec-     1 
tions  one  hundred  and  eiijht  to  one  hundred  and  ele\'en,  inclusive,  after    2 


Penalty  for 
violation  of 
sections  108  to 

1910,543.5  6;    being  requested  so  to  do  bv  an  inspector,  shall  be  punished  bv  a  fine  of    3 

1912,726,15.  4.  4.U         cr...        ]    II        "^  '  1 

not  more  than  nttv  dollars.  4 


Chap.  149.]  labor  and  industries.  1579 

1  Section  11.3.     Every  factory,  workshop,  manufacturing,  mechanical  nfus'tTeprop-' 

2  and  mercantile  establishment  shall  be  well  lighted,  well  \entilated  and  ffb- lighted. 

,..,.  ventilated  and 

3  kept  clean  and  tree  from  unsanitary  conditions,  according  to  reasonable  kept  dean. 

4  rules  and  regulations  adopted  by  the  department  with  reference  thereto,  p.'s.  ro4,'§  i.i. 

1894,481,  §  23.  1907.503,5  2.  1912,318. 

R.  L.  104,  §  41.  1909,  514,  §§  94,  145.  1914,  32S,  §  2. 

1  Section  114.     The  industrial  health  inspectors  shall,  when  obtaining  investigations 

2  information  concerning  the  proper  lighting  of  industrial  establishments,  heaith'i^spe!- 

3  make  such  investigation  concerning  the  eye  and  vision  in  their  relation  ofTndustries'on 

4  to  occupational  diseases,  including  injuries  to  the  eyes  of  employees  igif  ^^Js  ^  i 

5  and  to  the  pathological  effects  produced  or  promoted  by  the  circum-  }9J2. 726,  §  s 

6  stances  under  which  the  various  occupations  are  carried  on,  as  in  the 

7  opinion  of  the  department  is  practicable,  and  it  shall  from  time  to  time 

8  issue   such   printed   matter   containing   suggestions  to   employers   and 

9  employees  for  the  protection  of  the  eyes  of  the  employees  as  it  may 
10  deem  advisable. 

1  Section  115.     If  it  appears  to  an  inspector  that  in  anv  industrial  Devices  for 

2  establishment,  from  the  nature  of  the  work  or  the  machinery  used  in  jury  to  eyes. 

3  connection  therewith,  or  from  other  circumstances,  there  is  danger  of  in-  violation  of 

4  jury  to  the  eyes  of  employees  engaged  in  such  work,  and  that  the  danger  sucrd"vice"."^ 

5  of  injury  may  be  decreased  or  prevented  by  any  mechanical  device  or  jfy.'s."'^' 

6  other  practicable  means,  he  shall,  if  the  department  so  directs,  order  in  ^f'l;!^''' 

7  writing  that  such  de\dce  or  other  means  shall  be  provided  therein;  and  iais.sso,  §  C9. 

8  the  proprietors  and  managers  of  the  industrial  establishment  shall  coni- 

9  ph'  with  the  order.    Violations  of  this  section  shall  be  punished  by  a  fine 

10  of  not  less  than  five  nor  more  than  two  hundred  dollars  for  each  week 

11  during  which  the  violation  continues,  but  a  criminal  prosecution  for 

12  such  violation  shall  not  be  begun  unless  a  person  has  for  four  weeks 

13  after  the  receipt  of  a  written  order  from  an  inspector  neglected  to  com- 

14  ply  therewith. 

1  Section  116.     Upon  the  request  of  any  inspector  of  the  division  of  investigation 

2  inspection  of  the  department  of  public  safety  or  upon  the  request  of  on  request  of 

3  any  five  employees  in  a  factory  or  workshop,  the  department   shall  hl^pe^toror 

4  investigate  and   ascertain   whether   or   not   such   factory  •  or  workshop  pub"i' STfety"' 

5  is  adequately   lighted.     If   the   department   is  of  opinion,   after   such  IffJ"^' 

6  investigation,   that  the   factory  or  workshop   is   not   properly  lighted,  ss'gg^foj 

7  it  shall  notify  the  owner  or  person  in  charge,  anfl  shall  specify  what 

8  changes  should  be  made  in  order  to  light  it  properly,  and  the  owner  or 

9  lessee  thereof  shall  make  the  changes  so  specified  as  soon  as  it  can  be 

10  done  with  reasonable  tliligence.     If  such  owner  or  lessee  fails  to  comply 

11  with  any  such  order  he  shall  be  punished  by  a  fine  of  not  more  than 

12  five  hundred  dollars,  provided  such  failure  is  not  the  result  of  causes 

13  beyond  his  control. 

1    _  Section  117.     A  factory  where  five  or  more  persons  and  a  work-  ventilation 

of  fartorles. 
1S87.  173.  §  1. 

--    -  37. 

51. 


2  shop  where  five  or  more  women  or  children  are  employed  shall,  while 

3  work  is  carried  on  therein,  be  so  ventilated  that  the  air  shall  not  become  ]^^f  jg^'  | 

4  so   impure  as  to  be  injurious  to  the  health  of  the  persons  employed  li%^}*, 

5  therein,  and  so  that  all  gases,  vapors,  dust  or  other  impurities  injurious 

6  to   health,    generated    in   the   course   of   the   manufacturing   process   or 


83. 14.'; 

Penalty.  §  12 


1580 


LABOR   AND    INDUSTRIES. 


[Chap.  149. 


handicraft  carried  on  therein,  shall  so  far  as  practicable  be  rendered    7 
harmless.  8 


Section  118.     If,   in  such  a  workshop  or  factory,   any  process  is 


Devices  for 
removal  of 

^qI'  1VQ  « 9     carried  on  bv  which  dust  is  caused  which  may  be  inlialed  to  an  iniurious 

188/.  176,  i  ■:■  »  1  1      1  .  l'  -  . 

1894.508,138.  extent  by  tlie  persons  employed  therein,  and  it  appears  to  an  inspector 
1909!  S14.'     "  that  such  inlialation  would  be  substantially  diminished  without  unreason- 
able  expense  by  the  use  of  a  fan  or  by  other  mechanical  means,  such  fan 
enaty,       .   ^^  Qthcr  mechauical  means,  if  he  so  directs,  shall  be  provided,  main- 
tained and  used. 


Emery  wheels, 
etc.,  to  be  pro- 
vided with 
devices  for 
removing  dust. 
1903.  475,  §  1. 
1909.  514, 
§§  86,  145. 

Penalty,  §  122. 


Section  119.     Any  person  operating  a  factory  or  workshop  where  1 

emery  wheels  or  belts  or  buffing  wheels  or  belts  injurious  to  the  health  2 

of  employees  are  used  shall  provide  such  wheels  and  belts  with  a  hood  3 

or  hopper  connected  with  suction  pipes,  and  with  fans  or  blowers,  in  4 

accordance  with  the  following  section,   which  apparatus  shall  be  .so  5 

placed  and  operated  as  to  protect  any  person  using  such  wheel  or  belt  6 

from  the  particles  or  dust  produced  by  its  operation,  and  to  convey  7 

the  particles  or  dust  either  outside  of  the  building  or  to  some  receptacle  8 

so  placed  as  to  receive  and  confine  them.  9 


fmire!'"'         Section  120.     Every  such  wheel  shall  be  fitted  with  a  sheet  iron  or 
i9o"9  M4,         ^^^^  ^^o^  hood  or  hopper  of  such  form  and  so  placed  that  the  particles 
IS  87, 145.        or  (lust  produced  by  the  operation  of  the  wheel  or  of  any  belt  connected 
Penalty,  §  122.   therewith  shall  fall  or  will  be  thrown  into  such  hood  or  hopper  by  cen- 
trifugal force;    and  the  fans  or  blowers  shall  be  of  such  size  and  shall 
be  run  at  such  speed  as  will  produce  a  volume  and  velocity  of  air  in 
the  suction  and  discharge  pipes  sufficient  to  convey  all  particles  or 
dust  from  the  hood  or  hopper  through  the  suction  pipes  and  so  outside 
of  the  building  or  to  a  receptacle  as  aforesaid.    The  suction  pipes  and 
connections  shall  be  suitable  and  efficacious,  and  such  as  shall  be  ap- 
proved by  an  inspector. 


1 
2 

o 
O 

4 
5 
6 


9 
10 
11 


Application  of 
sections  119 
and  120. 
1903,  475,  §  4. 
1909,  514, 
§§  88,  145. 


Section  121.  The  two  preceding  sections  shall  not  apply  to  grind- 
ing machines  upon  which  water  is  used  at  the  point  of  grinding  con- 
tact, nor  to  solid  emery  wheels  used  in  sawmills  or  in  planing  mills 
or  in  other  woodworking  establishments,  nor  to  any  emery  wheel  six 
inches  or  less  in  diameter  used  in  establishments  where  the  principal 
business  is  not  emery  wheel  grinding. 


Penalty  for 
violation  of 
sections  117  to 
121,  inclusive. 
1887,  173,  §  3. 
1894,  508,  §  39. 
R.  L.  106,  §  53. 
1903,  475,  §  0. 
1909.  514, 
§§  85,  90,  145. 
1912,  726, 
§§S,S. 
1915,  69. 


Section  122.     Violations  of  sections  one  hundred  and  seventeen  to  1 

one  hundred  and  twenty-one,  inclusive,  shall  be  punished  for  the  first  2 

offence  by  a  fine  of  not  less  than  twenty-five  nor  more  than  one  hundred  3 

dollars,  and  for  a  subsequent  offence  by  the  fine  aforesaid  or  by  im-  4 

prisonment  in  jail  for  not  more  than  two  months,  or  both.    A  criminal  5 

prosecution  for  the  violation  of  section  one  hundred  and  seventeen  or  6 

one  hundred  and  eighteen  shall  not  be  begun  unless  an  employer  has  7 

for  four  weeks  after  the  receipt  of  a  written  order  from  an  inspector  8 

neglected  to  comply  therewith.  9 


fa°ct''orie°etcl  Section  123.  Lispcctors,  upou  receipt  of  a  notice  signed  by  any  1 
S?th  dui?''^''  person  having  knowledge  of  the .  facts  that  any  factory  or  workshop  2 
subject  to  sections  one  hundred  and  nineteen  and  one  hundred  and     3 


removers. 


Chap.  149.]  labor  and  industries.  1581 

4  twenty  is  not  provided  with  the  apparatus  prescribed  thereby,  shall  Jgolisu;^^' 

5  visit  and  inspect  such  factory  or  workshop,  and  for  that  purpose  may  flil^/ig^- 

6  enter  therein  during  working  hours;    and  if  they  ascertain  that  the 

7  owner,  proprietor  or  manager  thereof  has  failed  to  comply  with  said 

8  sections,  they  shall  make  complaint  to  a  court  or  trial  justice  ha\ing 

9  jurisdiction,    and    cause    such    owner,    proprietor    or   manager    to    be 
10  prosecuted. 

1  Section  124.     In    every    manufacturing    establishment    where    the  Communica- 

2  machinery   is  operated   by   steam,   communication   shall  be  provided  engine  room. 

3  between  each  room  where  such  machinery  is  placed  and  the  room  where  \tlo]  179' '' '' 

4  the  engineer  is  stationed  by  means  of  speaking  tubes,  electric  bells  or  ^^l]  '{H]  |  fg; 

5  appliances  to  control  the  motive  power,  or  such  other  means  as  shall  19°^^  ^^*' 

6  be  satisfactory  to  an  inspector,  if  in  his  opinion  such  communication 

7  is  necessary. 

1  Section  125.     An  occupant  or  manager  of  a  manufacturing  establish-  Penalty  tor 

2  ment  who  ^•iolates  the  preceding  section  shall  forfeit  to  the  common-  ^reced?ng° 

3  wealth  not  less  than  twenty-five  nor  more  than  one  hundred  dollars.  is'86°i73. 

4  No  prosecution  for  such  \'iolation  shall  be  begun  unless  a  person  has  }||J;4|?; 

5  for  four  weeks  after  the  receipt  of  a  written  order  from  an  inspector  ^^  ^-'  °^- 

6  neglected  to  comply  therewith. 

R.  L.  101,  §§  3S,  39.  1909.  514,  §§  91,  92.  145. 

1  Section  126.     No   outside  or  inside  doors  of  any  building  where  Doori>  not  to 

2  operatives  are  employed  shall  be  so  locked,  bolted  or  otherwise  fastened  mgwo/king"^" 

3  during  the  hours  of  labor  as  to  prevent  free  egress.    Any  person  ha\'ing  iss4!s2, 

4  charge  of  a  building  or  room  therein  any  exit  door  of  which  shall  be  fs94' 4^1 

5  found  locked,   bolted  or  otherwise  fastened   contrary  to  this  section  5 §53,«l 

6  shall  be  punished  by  a  fine  of  not  less  than  twenty-five  nor  more  than  i?09. 514,' 

7  five  hundred  dollars  or  by  imprisonment  for  not  more  than  one  year,  io^.'see.' 

8  or  both. 

1  Section  127.     The   belting,    shafting,    gearing,   drums  and   all   ma-  Guards  tor 

2  chinery  having  movable  parts  in  all  factories,  workshops,  mechanical  fsTT^'a^'l^  §  1. 

3  and  mercantile  establishments,  if  so  placed  as,  in  the  opinion  of  the  fs94',  1st'.  |  23. 

4  department,  to  be  dangerous  to  employees  while  engaged  in  their  ordi-  fgoVios'l"^-'" 

5  nary  duties,  shall  be  securely  guarded  so  far  as  practicable.     No  ma-  fql^Ku 

6  chinery  except  steam  engines  in  a  factorv,   workshop,  mechanical  or  §5  94, 145. 

•  •  *'       .  .  .  .  191'^31S 

7  mercantile  establishment  shall  be  cleaned  while  running  if  wTitten  ob-  1914!  32s!  §  2. 

8  jection  is  made  by  an  inspector.  laio,  350,  §  09.  Penalty,  §  iso, 

1  Section  128.     The   owner  of   a  cotton   factory  erected    after  INIay  Traversing 

2  twenty-eighth,  eighteen  hundred  and  ninety-six,  in  which  there  is  any  certain'"" 

3  traversing  carriage  of  a  self-acting  mule  installed,  or  of  any  cotton  fac-  isgel'sll'. 

4  tory  erected  previously  to  such  date  in  which  thereafter  such  traversing  fgogjit'lgs^' 

5  carriage  is  installed,  who  permits  such  carriage  to  travel  within  twelve 

6  inches  of  any  pillar,  column,  pier  or  fixed  structure,  shall  be  punished 

7  by  a  fine  of  not  less  than  twenty  nor  more  than  fifty  dollars. 

1  Section  129.     The    openings    of    hoistways,    hatchways    and    well  ho'isl'wa^^'" 

2  holes  upon  every  floor  of  a  factory  or  mercantile  building  shall  be  pro-  ^'.^g^^'"/^ 

3  tected    by   sufficient    trapdoors   or   self-closing   hatches,    or   such   other  is".  214,  §  2. 

4  safeguards  as  an  inspector  directs;    and  due  diligence  shall  be  used  to  rs82.2os.  ^"' 


1582 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


R  ^L  loi  1 43  keep  such  trapdoors  closed  at  all  times  except  when  in  actual  use  by    5 
1913'  806  i  13'  ^^^  occupant  of  the  building  ha^■ing  the  use  and  control  of  the  same.  G 

202  Mass.  82.  213  Mass  573.  Penalty,   §  ISO. 


Section  130.     Explosive  or  inflammable  compounds  shall  not  be  so     1 
stored  or  used  in  anv  factory  as  to  obstruct  or  render  hazardous  the    2 

3 

100.  145.  Penalty,  §  ISO. 


Storage  of 

e.\plosives. 

1.S81,  137,  §  1. 

P.  S.  104,  §  21.  . 

1894,481,  §46.  egrcss  of  operatives  in  case  or  fare. 

R.  L.  104,  I  47.  1909,314, 


Ciuards  for 
shuttles. 
1904, 347. 
1909,  514, 
§§  101,  143. 
1919,  350,  § 


69. 


Section  131.     Any  person  owning,  managing  or  operating  a  factory  1 

where  looms  are  used  shall  equip  them  with  such  guards  or  other  devices  2 

as  will  prevent  injury  to  employees  from  shuttles  falling  or  being  thrown  3 

from  the  looms.    Such  guards  or  devices  shall  be  made  of  such  material  4 

and  be  placed  in  such  manner  as  shall  be  appro\Td  by  the  department.  5 

Whoever  violates  this  section  shall  be  punished  by  a  fine  of  not  more  6 

than  one  hundred  dollars  for  every  week  during  which  the  violation  7 

continues.  8 


Suction 
shuttles 
prohibited. 
1911,281, 
§S  1.2. 


Section  132.     No  proprietor  of  a  factory  nor  any  officer  or  agent  or  1 

other  person  shall  require  or  permit  the  use  of  suction  shuttles,  or  any  2 

form  of  shuttle  in  the  use  of  which  any  part  of  the  shuttle  or  any  3 

thread  is  put  in  the  mouth  or  touched  by  the  lips  of  the  operator.  4 

Whoever  violates  this  section  shall  be  punished  by  a  fine  of  not  less  5 

than  fiftv  dollars.  6 


7ss7,'i(«.'''''^^       Section  133.     In    every    industrial    establishment    there    shall    be 

1888  305  provided  suitable,  adequate  and  convenient  water  closets  and  washing 

R^f  106  1 4-  ^^^^ilities,   separate   for  each   sex   and   plainly   so   designated,   of   such 

1909!  514,'  number,  in  such  location,  and  so  constructed,  lighted,  ventilated 

§§  79,  145. 

1914,  328,  §  1; 

726. 

1919,  350,  §  69. 

Penalty,  §  ISO. 


in  sucn  location,  ana  so  constructea,  ugnteci,  A'entuatea,  ar- 
ranged and  maintained  as  may  be  determined  by  such  reasonable  rules 
and  regulations  as  the  department  may  adopt.  No  person  shall  be 
allowed  to  use  a  closet  or  privy  provided  for  the  use  of  persons  of  the 
opposite  sex.  If  any  such  establishment  is  so  located  that  a  connection  8 
with  a  sewer  system  is,  in  the  opinion  of  the  department,  impossible  or  9 
impracticable,  it  shall  provide  such  suitable  toilet  and  washing  facilities  10 
as  the  department  may  require.  11 


men?  ofTx-  Section  134.     The  owner,  lessee  or  occupant  of  every  such  establish- 

Png  toiTet"^^"^  ment  shall  make  the  changes  necessary  to  conform  thereto.     If  such 
1888*305  changes  are  made  upon  the  order  of  an  inspector  by  the  occupant  or 

1894!  .508,  §  34.  lesscc,  hc  mav,  within  thirtv  davs  after  completion,  bring  an  action  against 
1909!  614.'         any  other  person  having  an  interest  in  such  premises,  and  may  recover 
i9]0,'239,'§  1.    such  proportion  of  the  expense  of  making  such  changes  as  the  court  ad- 
judges should  justly  and  equitably  be  borne  by  the  defendant. 


Sr^vlora'uol'of       Section  135.     A  Criminal  prosecution  shall  not  be  begun  against  a  1 

sriionf""'""    person  for  a  violation  of  any  pro\ision  of  the  two  preceding  sections  2 

1894: 608. 1 36  unlcss  he  has,  for  four  weeks  after  the  receipt  of  a  ^\Titten  notice  from  an  3 

Kg^L!  106'.  §  50.  inspector  of  the  changes  necessary  to  coini>ly  with  said  .sections,  neg-  4 

i9if'259^«2     l^<^ted  to  make  such  changes.     A  notice  shall  be  sufficient  under  this  5 

section  if  given  to  one  member  of  a  firm,  or  to  the  clerk,  cashier,  secre-  6 

tary,  agent  or  any  other  officer  having  charge  of  the  business  of  a  cor-  7 

poration,  or  to  its  attorney,  or.  in  case  of  a  foreign  corporation,  to  the  8 


Chap.  149.]  labor  and  industries.  1583 

9  officer  having  charge  of  such  factory  or  workshop;    and  such  officer 

10  shall  be  personally  liable  for  the  amount  of  any  fine  if  a  judgment 

11  against  the  corporation  is  unsatisfied. 

1  Section  136.     If  it  appears  to  an  inspector  that  any  act,  neglect  or  Notice  to  de- 

2  fault  in  relation  to  any  drain,  water  closet,  earth  closet,  privy,  ash  pit,  pubUcTeaTth 

3  water  supply,  nuisance  or  other  matter  in  any  industrial  establishment  fonSiUm^^'' 

4  is  punishable  or  remediable  under  any  law  relative  to  the  preservation  JsU'soU  35 

5  of  the  public  health,  but  not  under  this  chapter,  he  shall  give  written  f^^-  loj'-  §  *^- 

6  notice  thereof  to  the  board  of  health  of  the  town  where  such  establish-  §§  si.  hs 

7  ment  is  situated,  and  such  board  of  health  shall  thereupon  inquire  into 

8  the  subject  of  the  notice  and  enforce  the  laws  relative  thereto. 

1  Section  1.37.     The    proprietor    of    every    foundry    engaged    in    the  XoUet  rooms 

2  casting  of  iron,  brass,  steel  or  other  metal,  and  employing  ten  or  more  igoe^Sso"^'*' 

3  men,  shall  establish  and  maintain,  except  in  towns  where  it  would  be  |§%2^,'h5. 

4  impracticable  by  reason  of  the  absence  of  public  or  private  sewerage 

5  or  of  any  running  water  system,  a  toilet  room  of  suitable  size  and  con- 

6  dition  for  the  men  to  change  their  clothes  therein,  and  provided  with 

7  wash  bowls,  sinks  or  other  suitable  set  appliances  connected  with  run- 

8  ning  hot  and  cold  water,  and  also  a  water  closet  connected  with  running 

9  water  and  separated  from  the  said  toilet  room.    The  said  water  closet 

10  and  toilet  room  shall  be  connected  directly  with  the  foundry  building, 

11  properly  heated,  \-entilated  and  protected,  so  far  as  may  be  reasonably 

12  practicable,  from  the  dust  of  the  foundry.     Whoever  fails  to  comply 

13  with  this  section  after  being  requested  so  to  do  by  an  inspector  shall  be 

14  punished  by  a  fine  of  not  more  than  fifty  dollars. 

1  Section  138.     Whoever  wilfully  destroys,  defaces,  injures  or  defiles  Penalty  for 

2  any  toilet  appliances  provided  in  any  place  of  employment  shall  be  LppUaifce™  ^' 

3  punished  by  a  fine  of  not  more  than  fifty  dollars.  1914,  i64. 

1  Section  139.     In   any   mercantile   or   manufacturing   establishment  Lockers  tor 

2  or  hotel  where  the  nature  of  the  work  renders  it  necessary  for  any  or  all  lyitiais, 

3  employees,  before  beginning  work,  to  make  a  substantially  complete  1917,72. 

4  change  of  clothing,  exclusive  of  underclothing,  separate  lockers,  closets 

5  or  other  receptacles,  each  with  a  lock  and  key,  shall  be  pro\'ided  for  the 

6  use  of  such  employees.    Whoever  violates  this  section  shall  be  punished 

7  by  a  fine  of  not  less  than  five  nor  more  than  twenty  dollars. 

1  Section  140.    Suitable  receptacles  for  expectoration  shall  be  pro-  spittoons. 

2  vided  in  all  factories  and  workshops  by  the  proprietors  thereof,  the  Hog,  lli.    ~' 

3  same  to  be  of  such  form,  construction  and  number  as  shall  be  satis-  ^^  ^°^-  '*^- 

4  factory  to  the  board  of  health  of  the  town  where  the  factory  or  workshop  ^''"»'''*>'  §  '*o 

5  is  situated. 

1  Section  141.     Every    person    operating    a   factory   or   shop   where  Medical  appii- 

2  machinery  is  used  for  any  manufacturing  or  other  purpose  except  for  igoyt'm. 

3  elevators,  or  for  heating  or  hoisting  apparatus,  shall  keep  and  maintain,  j§"fo//H5. 

4  free  of  expense  to  the  employees,  such  medical  or  surgical  chest,  or  jgJj'Sffi 

5  both,  as  shall  be  required  by  the  department,  containing  plasters,  band-  wis!  iio! 

6  ages,  absorbent  cotton,  gauze,  and  all  other  necessary  medicines,  instru- 

7  ments  and  appliances  for  the  treatment  of  persons  injured  or  taken 


1584 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


ill  upon  the  premises.     Every  such  person  employing  one  hundred  or  8 

more  persons  shall,  if  so  required  by  the  department,  provide  accom-  9 

modations  satisfactory  to  it  for  the  treatment  of  persons  injured  or  10 

taken  ill  upon  the  premises,  and  also  suitable  and  sanitary  facilities  for  11 

heating  or  warming  food  to  be  consumed  by  those  employees  of  the  12 

factory  or  shop  who  so  desire.    Every  person  carrying  on  a  mercantile  1.3 

establishment  where  twenty  or  more  women  or  children  are  employed  14 

shall  in  the  manner  aforesaid  provide  such  medical  and  surgical  chest  15 

as  the  department  may  require.    Whoever  violates  any  provision  hereof  16 

shall  be  punished  by  a  fine  of  not  less  than  five  nor  more  than  five  17 

hundred  dollars  for  every  week  during  which  such  violation  continues.  18 

draning^print-       SECTION  142.     All  publishers  and  printers  shall  use  a  sanitary  cloth  1 

ine  presses.        Qv  Other  Sanitary  material  in  cleaning  their  presses.         Penalty,  §  iso.  2 


License. 
1891,357,  §  1. 
1892,296,  §  1. 
1S93,  246,  ^  1, 
1894,  508,  §  44. 
1898,  150,  §  1, 
R.  L.  106,  §  50. 
1905,  238. 
1907,  537,  §  5. 
1909,514, 
§§  106,  145. 
1912,  726,  §  5. 
1919.  350,  §  09. 

Penalty,  §  146. 


MANUFACTURE   OF   CLOTHING   IN   TENEMENT   HOUSES. 

Section  143.  A  room  or  apartment  in  a  tenement  or  dwelling  1 
house  shall  not  be  used  for  the  purpose  of  making,  altering,  repairing  2 
or  finishing  therein  wearing  apparel  of  any  description,  except  by  the  3 
members  of  the  family  dwelling  therein;  and  a  family  desiring  to  make,  4 
alter,  repair  or  finish  wearing  apparel  of  any  description  in  a  room  or  5 
apartment  in  a  tenement  or  dwelling  house  shall  first  procure  a  license  6 
therefor  from  the  department.  A  license  may  be  applied  for  by  and  7 
issuetl  to  any  member  of  a  family  desiring  to  do  such  work.  No  person  8 
shall  hire,  employ  or  contract  with  a  member  of  a  family  which  does  9 
not  hold  a  license  therefor  to  make,  alter,  repair  or  finish  such  wearing  10 
apparel  in  any  room  or  apartment  in  a  tenement  or  dwelling  house  as  11 
aforesaid.  Every  room  or  apartment  where  such  wearing  apparel  is  12 
made,  altered,  repaired  or  finished  shall  be  kept  in  a  cleanly  condition  13 
and  be  subject  to  the  inspection  and  examination  of  the  department  to  14 
ascertain  whether  said  room  or  apartment  or  such  wearing  apparel  or  15 
any  parts  thereof  are  clean  antl  free  from  vermin  and  from  infectious  or  16 
contagious  matter.  A  room  or  apartment  in  a  tenement  or  dwelling  17 
house,  which  is  not  used  for  living  or  sleeping  purposes  and  is  not  con-  18 
nected  with  a  room  or  apartment  used  for  living  or  sleeping  purposes  and  19 
has  a  separate  and  distinct  entrance  from  the  outside  shall  not  be  subject  20 
to  this  section,  nor  shall  this  section  prevent  the  employment  of  a  tailor  21 
or  seamstress  by  any  j^erson  or  family  for  the  making  of  wearing  apparel  22 
for  the  use  of  such  person  or  family.  Every  person  hiring,  employing  23 
or  contracting  with  a  member  of  a  family  holding  a  license  hereumler  24 
for  making,  altering,  repairing  or  finishing  wearing  apparel  to  be  done  25 
outside  the  premises  of  such  person  shall  keep  a  register  of  the  names  26 
and  addresses  plainly  written  in  English  of  the  persons  so  hired,  em-  27 
ployed  or  contracted  with,  and  shall  forward  a  copy  of  such  register  28 
once  a  month  to  the  department.  29 


Notice  to  local 
boarcLs  of 
health. 
1891,357,  §  2. 

1893,  248,  5  2. 

1894,  508,  §  45. 
1898,  1.50,  §  2. 
R.  L.  106,  §  57. 
1907,  537,  §  5. 
1909.  514, 

§§  107,  145. 


Section  144.  If  an  inspector  finds  evidence  of  infectious  or  con- 
tagious disease  or  of  vermin  present  in  a  workshop,  or  in  a  room  or 
apartment  in  a  tenement  or  dwelling  house  where  wearing  apparel  is 
made,  altered  or  repaired,  or  in  goods  manufactured  or  in  process  of 
manufacture  therein,  he  shall  report  tlie  same  to  the  department,  which 
shall  notify  the  local  boanl  of  health  to  examine  said  workshop,  room 


CH.A.P.    149.]  L.4.B0R   AND   mDUSTRIES.  1585 

7  or  apartment  and  the  materials  used  therein;   and  if  the  board  of  health  1912.726,  §  5. 

8  finds  that  said  workshop,  tenement  or  dwelHng  house  is  in  an  unhealthy        '      '     ' " 

9  condition,  and  that  the  clothing  and  materials  used  therein  are  unfit 
10  for  use,  it  shall  issue  such  orders  as  public  safety  may  require. 

1  Section  145.     Whoever  sells  or  exposes  for  sale  wearing  apparel  of  i^^^n/^d'e'^n'un- 

2  any  description  made  in  a  tenement  or  dwelling  house  for  which  the  licensed  tene- 

i,         .1        1        11*  1.1  111'  -11  J.*  nient  houses. 

3  family  dwelhng  therem  has  not  procured  the  license  required  by  section  isgi.ssr.  §4. 

4  one  hundred  and  forty-three  shall  have  affixed  to  each  article  of  wearing  Hm.  he.  §  i. 

5  apparel  a  tag  or  label  not  less  than  two  inches  in  length  and  one  inch  {fgl;  fso.' 1 1.^' 

6  in  width,  upon  which  shall  legibly  be  printed  or  written  the  words  "  tene-  ^g^-  if^  ^  ^^' 

7  ment  made"  and  the  name  of  the  state  and  town  where  such  article  §§  10s.  145. 

8  was  made.  Penalty,  §  146. 

1  Section  146.     No  person  shall  sell  or  expose  for  sale  anv  such  article  Penalties. 

1  ftQ  1     Q  -^7 

2  of  wearing  apparel  without  a  tag  or  label  as  aforesaid  affixed  thereto,  §§  ,5,'?. 

3  or  wilfully  remove,  alter  or  destroy  such  tag  or  label  upon  any  such  |f^|;|*''' 

4  article  when  exposed  for  sale,  or  sell  or  expose  for  sale  any  such  article  §5^48,^°3%6. 

5  with  a  false  or  fraudulent  label  affixed  thereto.     Whoever  violates  any  R^  ^^  ^°^' 

6  provision  of  this  section  or  section  one  hundred  and  forty-three  or  one  ^?''^if*?;, 

7  hundred  and  forty-fi^'e  shall  be  punished  by  a  fine  of  not  less  than  fifty  145. 

8  nor  more  than  five  hundred  dollars. 

1  Section  147.     If  it  is  reported  to  an  inspector  or  to  the  department  clothing  made 

2  that  ready  made  articles  of  wearing   apparel  of  any  description   are  monweaith 

3  being  shipped  to  this  commonwealth,  having  been  manufactured  under  1892,'  296,'  §  2. 

4  unhealthy  conditions,  said  inspector  shall  examine  said  goods  and  the  \lll[  %s,  |  %. 

5  condition  of  their  manufacture;  and  if  they  contain  vermin  or  have  I907  mt'Is" 

6  been  made  in  improper  places  or  under  unhealthy  conditions,  he  shall  l?°f;o*\*J5 

7  so  report  to  the  department,  which  shall  thereupon  notify  the  depart-  1912, 726.  s  5. 

8  ment  of  public  health,  which  shall  make  such  orders  as  are  necessary 

9  to  protect  the  public  health. 

weekly  payment  of  wages. 

1  Section  148.     Every  person  engaged  in  carrying  on  a  hotel  or  club  weekly  pay- 

2  in  a  city,  or  a  factory,  workshop,  manufacturing,  mechanical  or  mer-  i's79,  i28"*^^' 

3  cantile  establishment,  mine,  quarry,  railroad  or  street  railway,  or  tele-  f88li,^8*7',^  ^^' 

4  phone,  telegraph,  express  or  water  company,  or  in  the  erection,  alter-  flsV.I'gg.  §  1. 

5  ation,  repair  or  removal  of  any  building  or  structure,  or  the  construction  HH'  HI  ^  '• 

6  or  repair  of  any  railroad,  street  railway,  road,  bridge,  sewer,  gas,  water  \l^^■^g^^ 

7  or  electric  light  works,  pipes  or  lines,  shall  pay  weekly  each  employee  i896!24i;334. 

8  engaged  in  his  business  the  wages  earned  by  him  to  within  six  days  of  i899,'247: 

9  the  date  of  said  payment;  but  any  employee  leaving  his  emplojinent  rT:  to?)',  1 62. 

10  shall  be  paid  in  full  on  the  following  regular  pay  day;    and  any  em-  Hollt^'. 

11  ployee  discharged  from  such  employment  shall  be  paid  in  full  on  the  Jg^^'^g^- 

12  (lay  of  his  discharge,  or  in  Boston  as  soon  as  the  laws  requiring  pay  St^^jg^^tis 

13  rolls,  bills  and  accounts  to  he  certified  shall  have  been  complied  with;  1910.350.  ' 

14  and  the  commonwealth,  its  departments,  officers,  boards  and  commis-  i9H.'i47: 

15  sions  shall  so  pay  every  mechanic,  workman  and  laborer  employed  by  }9}6;229. 

16  it  or  them,  and  every  person  employed  by  it  or  them  in  any  penal  or  Igififlo.sn?. 

17  charitable  institution;  and  every  county  and  city  shall  so  pay  every  l^gjJassHa 

18  employee  engaged  in  its  business  the  wages  or  salary  earned  by  him,  un-  }7|  Mass!  230: 

19  less  such  mechanic,  workman,  laborer  or  employee  requests  in  writing  to  i95MaS548'. 


1586 


LABOR   AND   INDUSTRIES. 


[Chap.  149. 


206  Mass.  417. 
2  Op.  A.  G.  175. 
Op.  A.  G. 
(1919)  112. 


be  paid  in  a  different  manner;  and  every  town  shall  so  pay  each  em-  20 
ployee  in  its  business  if  so  required  by  him;  but  an  employee  absent  21 
from  his  regular  place  of  labor  at  a  time  fixed  for  pajonent  shall  be  paid  22 
thereafter  on  demand.  This  section  shall  not  apply  to  an  employee  of  23 
a  co-operative  corporation  or  association  if  he  is  a  stockholder  therein  24 
unless  he  requests  such  corporation  to  pay  him  weekly.  The  depart-  25 
ment  of  public  utilities,  after  hearing,  may  exempt  any  railroad  cor-  26 
poration  from  paying  weekly  any  of  its  employees  if  it  appears  that  27 
such  employees  prefer  less  frequent  payments,  and  that  their  interests  28 
and  the  interests  of  the  public  will  not  suffer  thereby.  No  person  shall  29 
by  a  special  contract  with  an  employee  or  by  any  other  means  exempt  30 
himself  from  this  section  or  section  one  hundred  and  fifty.  Whoever  31 
violates  this  section  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  -32 
more  than  fiftv  dollars.  33 


Warrant  for 
violation  of 
preceding 
section. 
1915.214. 


Section  149.     A  justice  or  clerk  of  a  district  com-t,  or  a  trial  justice,  1 

may  upon  the  application  of  any  employee  issue  a  summons  to  an  em-  2 

ployer  to  appear  and  show  cause  why  a  warrant  should  not  issue  against  3 

him  for  a  violation  of  the  preceding  section.     Upon  the  return  of  such  4 

summons  and  after  a  hearing  the  justice  may  issue  a  warrant  upon  the  5 

complaint  of  any  such  employee.  6 


Complaint  for 
violation  of 
section  148. 

1886.  87. 
§§  2-4. 

1887,  399.  §  2. 
1891.  239. 

1894,  508, 
§§  52-54. 

1895,  438. 

R.  L.  106,  §  63. 
1909,  514, 
§§  113. 145. 
1916, 14. 
1919,  350,  §  69. 
206  Mass.  417. 


Section  150.  The  department  may  make  complaint  against  any  1 
person  for  a  violation  of  section  one  hundred  and  forty-eight  within  2 
three  months  after  the  date  thereof.  On  the  trial  no  defence  for  failure  3 
to  pay  as  required,  other  than  the  attachment  of  such  wages  by  trustee  4 
process  or  a  valid  assignment  thereof  or  a  \alid  set-off  against  the  same,  5 
or  the  absence  of  the  employee  from  his  regular  place  of  labor  at  the  6 
time  of  payment,  or  an  actual  tender  to  such  employee  at  the  time  of  7 
payment  of  the  wages  so  earned  by  him,  shall  be  valid.  The  defendant  8 
shall  not  set  up  as  a  defence  a  payment  of  wages  after  the  bringing  9 
of  the  complaint.  An  assignment  of  future  wages  payable  weekly  under  10 
section  one  hundred  and  forty-eight  shall  not  be  valid  if  made  to  the  11 
person  from  whom  such  wages  are  to  become  due  or  to  any  person  on  12 
his  behalf,  or  if  made  or  procured  to  be  made  to  another  person  for  the  13 
purpose  of  relieving  the  employer  from  the  obligation  to  pay  weekly.         14 


manX!;tories        SECTION  151.     Pcrsons  Carrying  on  any  manufactm-ing  business  em- 
when  over  one    ploviug  onc  hundred  or  more  persons  shall,  on  the  da-s-  chosen  as  pav 

hundred  i       .        o  i         !■      i     ■  i  i       '  ,  •  •  i  *■ 

employed.         day,  pav  such  ot  their  emplo\'ees  as  are  on  that  dav  working  in  the 

1911  249  51.'.  .  '  . 

manufacturing  establishment,  before  the  close  of  the  regular  working 
hours. 


Deductions  for 
tardiness. 
1911,249,  §  2. 
1918.  192. 
§§  1.2. 


Section  152.  There  shall  not  be  deducted  from  the  wages  of  an 
employee  in  any  factory,  workshop,  manufacturing,  mechanical  or  mer- 
cantile establishment,  or  from  the  wages  of  a  mechanic,  workman  or 
laborer,  on  account  of  the  employee's  coming  late  to  work,  a  sum  in 
excess  of  the  proportionate  wage  which  would  ha-\'e  been  earned  during 
the  time  actually  lost.  Whoever  violates  this  or  the  preceding  section 
shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars. 


Weavers'  fines, 
1887.361,  S  1 


Section  153.    No  system  used  by  manufacturers  for  grading  the    1 

1892' 410  i  ]■    '^^'^'"^  o^  ^  weaver  shall  affect  or  lessen  the  wages  of  the  wea^•er  except     2 
1894. 508.  §  55  for  imperfectious  in  his  own  work;    and  in  no  case  shall  the  wages  of    3 


CH-\.P.    149.]  LABOR   .\ND    INDUSTRIES.  1587 

4  those  engaged  in  weaA'ing  be  affected  by  fines  or  otherwise  unless  the  R  l.  loe,  §  64. 

5  imperfections  complained  of  are  first  exhibited  and  pointed  out  to  the  §§ii4. 145. 

6  person  whose  wages  are  to  be  aiTected;   and  a  fine  shall  not  be  imposed 

7  upon  any  person  for  imperfect  weaving  unless  this  section  is  first  com- 

8  plied  with  and  the  amount  of  the  fines  is  agreed  upon  by  both  parties. 

1  Section  154.     No  employer  shall  impose  a  fine  upon  an  employee  same  subject^. 

2  engaged   at  weaving  for  imperfections  arising  during  the  process  of  is92!4io!§2J 

3  wea\ing.     ^^^^oever  violates  this  or  the  preceding  section  shall  for  the  \i^t  lol,  | u. 

4  first  offence  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  jj^f'if/i^jg 

5  and  for  a  subsequent  offence  by  a  fine  of  not  more  than  three  hundred  it^''.?^' 

6  dollars.  155  Mass.  117.  172  Mass.  230.  212  Mass.  315. 

1  Section  155.     The  occupier  or  manager  of  every  cotton  factory  shall  fP^^weaver""^ 

2  supply  to  each  person  engaged  as  a  weaver  in  said  factory  and  paid  by  j\*^/' ^Qe•|}i- 
3  the  piece,  cut  or  yard  a  printed  or  written  ticket  with  each  warp  which  woi'.  304,'  §  1. 

4  shall  contain  the  following  specifications  as  to  the  work  to  be  done  and  §§  ih.  145. 

5  wages  paid :  the  number  of  cuts,  the  number  of  yards  per  cut  or  piece,  penalty,  §  157. 

6  the  price  per  yard,  cut  or  piece,  the  number  of  picks  per  inch  and  the 

7  number  of  reeds  to  the  inch.    Said  occupier  or  manager  shall  also  supply 

8  to  each  person  engaged  as  a  frame  tender  a  specification  of  the  number 

9  of  roving  and  price  per  hank,  and  to  each  person  engaged  as  a  warper 

10  or  web  drawer  a  specification  of  the  number  of  threads  in  the  warp  and 

11  the  rate  of  compensation,  and  to  each  operative  paid  by  the  pound  a 

12  specification  of  the  price  to  be  paid  per  pound;   said  specification  shall 

13  be  furnished  in  each  case  on  a  printed  or  WTitten  ticket  within  three 

14  days  after  said  operative  begins  work. 

1  Section  156.     The   occupier   or   manager   of   every   textile   factory  same  subject. 

2  shall  post  in  every  room  where  any  employees  work  by  the  job,  in  §§  i^.   ' 

3  legible  writing  or  printing,  and  in  sufficient  numbers  to  be  easily  acces-  r.°i,.'io6!^  ^' 

4  sible  to  such  employees,  specifications  of  the  character  of  each  kind  of  ||o5^'3ol,  §  2. 

5  work  to  be  done  by  them,  and  the  rate  of  compensation.    Such  specifi-  J^°{'i|\*js 

6  cations  in  the  case  of  weaving  rooms  shall  state  the  intended  and  maxi-  i« 

7  mum  length  of  a  cut  or  piece,  the  count  per  inch  of  reed,  and  the  1919!  193! 
S  number  of  picks  per  inch,  width  of  loom,  width  of  cloth  woven  in  the  1920, 417. 
9  loom,  and  the  price  per  cut  or  piece,  or  per  pound;    or,  if  pajinent  is 

10  made  per  pick  or  per  yard,  the  price  per  pick  or  per  yard;   and  each 

11  warp  shall  bear  a  designating  ticket  or  mark  of  identification.    In  roving 

12  or  spinning  rooms,  the  number  of  ro\ing  or  yarn  and  the  price  per  hank 

13  for  each  size  machine  shall  be  stated;    and  each  machine  shall  bear  a 

14  ticket  stating  the  number  of  the  roving  or  j'arn  made  upon  it.    In  spooling 

15  rooms  the  boxes  shall  bear  a  ticket  stating  the  number  of  pounds  the  box 

16  contains  and  the  price  per  pound.     The  maximum  length  of  a  cut  or 

17  piece  shall  not  exceed  its  intended  length  by  more  than  three  per  cent; 

18  but  if  it  appears  that  a  variation  in  excess  of  the  amount  hereinbefore 

19  set  forth  has  been  caused  in  whole  or  in  part  by  any  weaver  in  the  em- 

20  ploy  of  any  person  charged  with  the  violation  of  this  section,  it  shall  be 

21  deemed  a  sufficient  defence  to  a  prosecution.     The  said  specifications 

22  shall  also  contain  a  detailed  schedule  of  the  method  of  computation  of 

23  the  price  of  cotton  or  silk  or  mixed  cotton  and  silk  weaving  to  be  paid 

24  by  the  said  occupier  or  manager,  and  no  particular  in  the  specifications 

25  shall  be  expressed  by  means  of  symbols,  but  every  particular  shall  be 


1588 


LABOR  AND   INDUSTRIES. 


[Chap.  149. 


sufficiently  clear  and  complete  to  enable  the  operativ'e  to  determine  26 
readily  the  price  payable  for  the  cut  or  piece.  Violation  of  any  provision  27 
of  this  section  shall  for  the  first  offence  be  punished  by  a  fnne  of  one  28 
hundred  dollars,  for  the  second  offence  by  a  fine  of  two  hundred  dollars,  29 
and  for  a  subsequent  offence  by  a  fine  of  five  hundred  dollars  or  by  im-  30 
prisonment  for  not  more  than  one  month,  or  both.  31 


Penalty  for  vio- 
lation of  section 
15o  and  for 
interference 
with  inspector. 
1894,  534,  §  2. 
1901,370.  §  2, 
R.  L.  106.  §  68. 
1905,304,  §  3. 
1909,514, 
§§  lis,  145. 


Section  157.    Violation  of  any  provision  of  section  one  hundred  1 

and  fifty-five  shall  for  the  first  offence  be  punished  by  a  fine  of  not  2 

less  than  twenty-five  nor  more  than  fifty  dollars,  and  for  a  subsequent  3 

offence  by  a  fine  of  not  less  than  fifty  nor  more  than  one  hundred  4 

dollars.     Whoever  interferes  with  an  inspector  in  the  discharge  of  his  5 

duties  in  connection  with  the  two  preceding  sections  shall  be  punished  6 

as  provided  in  this  section.                                                             .  7 


f°om"wagesGf        Section  158.     Dcductions   shall   not  be  made  from   the   wages   of 
women  orchil-  ^-oinen  or  children  paid  by  the  day  or  hour,  and  employed  in  manu- 

dren  for  stop-  .  i         •       i  i  i-   i  i  -i  i  •  • 

pin|niachinery.  facturiug  or  mcchanical  establishments,  while  machinery  is  stopped, 
R.  h.  106,  §  69.  if  said  women  or  children  are  refused  the  privilege  of  leaving  the  mill 
§§119,145.  while  the  damage  to  said  machinery  is  being  repaired;  and  if  they  are 
detained  in  their  workrooms  during  such  time  they  shall  not  be  com- 
pelled to  make  up  time  lost  by  such  stopping  unless  compensated  there- 
for at  their  regular  rates  of  wages.  Whoever  violates  this  section  shall 
be  punished  by  a  fine  of  not  more  than  twenty  dollars. 


discharge  SECTION  159.     A   persou    engaged    in   manufacturing   who    requires 

i,*'^?' 2^11^5  1  from  his  employees,  under  penalty  or  forfeiture  of  a  part  of  the  wages 
1894, 608.  §1.  earned  by  them,  a  notice  of  intention  to  leave  such  employ  shall  be 
R.  L.  106,  §  10.  liable  to  a  like  forfeiture,  if,  without  similar  notice,  he  discharges  an 

1909.514,  1 

H  120, 145.       employee. 


FREE   EMPLOYMENT   OFFICES. 


Section  160.     The  department  may  establish  and  maintain  in  such  1 

cities  as  may  be  selected  by  it  after  investigation,  with  the  approval  of  2 

the  governor  and  council,  emplo,\Tnent  offices  for  the  purpose  of  bring-  3 

ing  together  those  seeking  employment  and  those  desiring  to  employ,  4 

and  may  maintain  such  offices  now  established.     The  commissioner  5 

shall  make  an  annual  report  as  to  free  employment  offices.  6 


fnt^'s^anc'uierks       Section  161.     The  commissioucr  shall  appoint  for  each  of  the  offices  1 

1900,435,         provided  for  in  the  preceding  section  a  superintendent  who  shall,  under  2 

1908. 485,  §  1.    the  direction  of  the  commissioner,  perform  the  duties  hereinafter  set  3 

§s  2,'  145.         forth  or  such  as  he  may  require.    The  commissioner  may  also  appoint  4 

1919.350,     4.  ^^  assistant  superintendent  and  such  clerks  as  he  may  deem  necessary  5 

for  the  proper  conduct  of  the  business  of  said  employment  offices.    The  6 

location  of  each  office  established  under  the  preceding  section  shall  be  7 

plainly  indicated  by  a  proper  sign.  S 


Records  of  ap- 
pHcants  for 
employment 
1906,  435,  S  3. 
1908,485,  I  2. 
1909,  514, 
§§  3,  145. 
1911,  158. 
1920,  412. 


Section  162.  The  superintendents  of  said  employment  offices  shall 
recei\'e  applications  from  those  seeking  employment  and  from  those 
desiring  to  employ,  and  shall  register  them  in  such  manner  as  may  be 
prescribed  by  the  commissioner,  and  shall  take  such  other  action  as 
the  commissioner  may  deem  best  to  promote  the  purposes  of  said  offices. 


Chap.  149.]  labor  and  industries.  1589 

6  Said  superintendents  shall  also  receive  applications  from  alien  immi- 

7  grants  seeking  employment  in  agricultural   labor  and  from  those  de- 

8  siring  to  employ  immigrants  in  agricultural  labor,  and  shall  take  such 

9  other  action  as  the  commissioner  may  deem  best  to  promote  a  more 

10  general  distribution  of  alien  immigrants  throughout  the  agricultural  sec- 

11  tions  of  the  commonwealth.    In  directing  applicants  for  employment  to 

12  an  employer  in  whose  establishment  a  strike  is  in  progress,  the  com- 

13  missioner,  superintendents  or  other  departmental  employees  shall  inform 

14  the  applicant  of  the  strike. 

1  Section  163.     No  fees  shall  in  any  case  be  taken  from  those  seeking  Fees  pro- 

2  the  benefits  of  said  employment  offices.     Any  superintendent  or  clerk  1900^435, 

3  who  directly  or  indirectly  charges  or  receives  any  fee  in  the  performance  ino*8,4S5,  §  3. 

4  of  his  duties  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  §|°4'f4|' 

5  dollars  or  by  imprisonment  in  jail  for  not  more  than  one  month,  and 

6  shall  be  disqualified  from  holding  further  connection  with  said  office. 

1  Section  164.     In  registering  applications  for  employment  and  for  Preference  to 

2  employees  wanted,  preference  shall  be  given  to  residents  of  the  common-  lyoef^s,  §  5. 

3  wealth.  1909, 514.  §§  5. 145.  2  0p.  a.  g.  175.  1908, 435,  §4. 

1  Section  165.     Each  superintendent  shall  make  to  the  commissioner  Reports. 

2  such  reports  of  applications  for  labor  or  employment  and  of  other  de-  igos]  tit',  1 1'. 

3  tails  of  the  work  of  his  office  as  the  commissioner  may  require.     The  ^f'e.Hs.' 

4  commissioner  shall  cause  reports  showing  the  business  of  the  several  5s"9"*7o' 

5  offices  to  be  prepared  at  regular  intervals  and  to  be  exchanged  among 

6  the  said  offices,  and  shall  supply  them  to  the  newspapers  and  to  citizens 

7  upon  request;    and  the  several  superintendents  shall  post  such  reports 

8  in  a  conspicuous  place  in  their  offices  so  that  they  may  be  open  to  public 

9  inspection. 

1  Section  166.    There  shall  be  allowed  and  paid,  upon  the  approval  Appropriation 

..  (.  i.  IP  .  .  tor  expenses. 

2  of  the  commissioner,  for  salaries  and  for  contingent  expenses  in  con-  'soo.  435,  §  s. 

3  nection    with    the    establishment    and    maintenance    of    free    employ-  §§  i.'2. 

4  ment  offices,  such  sum  as  the  general  court  may  annually  appropriate  1909!  su! 

5  therefor.  ^^  '■  "^• 

1  Section  167.     The  commissioner  may  furnish  weekly  to  the  clerks  Bulletins  as  to 

2  of  all  towns  in  the  commonwealth  printed  bulletins  showing  the  demand  empuTyment. 

3  for  employment,  classified  by  occupations  to  such  extent  as  may  be  \loq]  f^\  ^  '■ 

4  practicable  and  indicating  the  town  where  the  employees  are  wanted.  \l^^  ^*^q 

5  Such  information  shall  be  based  upon  the  applications  for  employees  ^5  69, 70. 

6  under  this  chapter. 

1  Section  168.    Every  town  clerk  shall  post  the  lists  received  as  afore-  Posting 

2  said  in  one  or  more  conspicuous  places  in  the  town.    A  town  clerk  who  iimsoH. 

3  fails  to  comply  with  this  section  shall  be  punished  by  a  fine  of  not  more  ilol'  sw 

4  than  ten  dollars.  slo.'iw.' 

statistics  of  labor  and  manufactures. 

1  Section  169.     For  the  purpose  of  compiling  statistics  as  required  by  Commissioner, 

2  the  following  section,  the  commissioner  or  a  person  in  the  department  qiSre'attcnd- 

3  designated   by  him  may  require  the  attendance  of  witnesses  and  the 


ance  of  wit- 
nesses, etc. 


1590 


LABOR   AND   INDUSTRIES. 


[ClLAP.    149. 


1869, 

Res. 

102. 

PS. 

31,  S 

i  H. 

R.  L. 

107, 

is  2 

1908, 

462. 

1  l' 

1909, 

371, 

5§2, 

10. 

Statistics  of 

labor 

and 

manufactures. 

1869, 

Res. 

102. 

1876, 

178. 

1877, 

248, 

§1. 

1878, 

264, 

§  1. 

1880, 

193, 

§  1. 

18S1, 

293, 

§  1. 

P.  S. 

4,  §7: 

31,  §  13. 

1882, 

6,  §  1. 

1885, 

369. 

1886, 

174. 

1888, 

23. 

1889, 

124; 

440,  1 

5  7. 

1890, 

97. 

1894, 

393, 

§7. 

1900,  225. 

Schedules  for 

collecting 

statistics. 

1886, 

174, 

§  1. 

R.L. 

107, 

§  •'). 

1909, 

371. 

SS4, 

10. 

1919, 

■sao. 

l§  OS 

1,  70. 

production  of  books  and  documents,  and  may  examine  witnesses  on  4 

oath;   and  such  witnesses  shall  be  examined  in  the  same  manner  and  5 

paid  the  same  fees  as  in  the  superior  court.  6 

1912,  560,  §  1.  1919,  350,  §  69. 


Section  170.  The  commissioner  shall  make  an  annual  report  of  the 
acts  of  the  department  relative  to  statistics.  He  shall  prepare  annually 
for  distribution  as  public  documents  a  report  on  the  statistics  of  labor 
which  shall  embody  statistical  and  other  information  relating  especially 
to  labor  affairs  in  the  commonwealth,  and  a  report  on  the  statistics  of 
manufactures  to  be  gathered  as  pro^dded  in  the  following  section.  The 
state  secretary  shall  print  for  the  use  of  the  department  and  other  pur- 
poses such  numbers  of  these  reports  as  the  supervisor  of  administration 
may  designate.  The  commissioner  may  publish,  at  such  intervals 
as  he  deems  expedient,  bulletins  or  special  reports  relative  to  industrial 
or  economic  matters.  R  L.g,  §  7-,  io7,  §  2. 


1908,  462, 

1909,  371,  I 

1910,  S3. 


§1,2. 
!  3,  10. 


1913,  358. 
1918, 189,  S 
257,  §  9. 


1.2: 


1919,  5;  350, 
§§  69,  70. 

1920,  2. 


Section  171.  The  commissioner  shall  prepare  a  schedule  for  the 
collection  of  such  data  as  may,  in  his  judgment,  be  desirable  for  the 
proper  presentation  of  statistics  of  manufactures  and  the  promotion  of 
the  industrial  welfare  of  the  commonwealth;  and  the  said  schedule, 
unless  modified  by  the  director,  shall  embody  incjuiries  as  to  — 

(1)  Name  of  person,  partnershij)  or  corporation. 

(2)  Kind  of  goods  manufactured  or  business  done. 

(3)  Number  of  partners  or  stockholders. 

(4)  Capital  invested. 

(5)  Principal  stock  or  raw  material  used,  and  total  value  thereof. 

(6)  Gross  quantity  and  vahw  of  articles  manufactured. 

(7)  Average  number  of  persons  employed,  distingui^iing  as  to  sex, 
adults  and  children. 

(8)  Smallest  number  of  persons  employed  and  in  what  month. 

(9)  Largest  number  of  persons  employed  and  in  what  month. 

(10)  Total  wages,  not  including  salaries  of  managers,  paid  during 
the  year,  distinguishing  as  to  sex,  adults  and  children. 

(11)  Proportion  that  the  business  of  the  year  bore  to  the  greatest 
capacity  for  production  of  the  establishment. 

(12)  Number  of  weeks  in  operation  during  the  year,  part  time  being 
reduced  to  full  time. 

The  said  schedule  shall  be  sent  by  mail  annually,  on  or  before 
December  fifteenth,  to  the  owner,  operator  or  manager  of  every  manu- 
facturing establishment  in  the  commonwealth;  and  such  owner,  oper- 
ator or  manager,  or  any  other  person  to  whom  the  schedule  is  sent, 
shall  answer  the  inquu-ies  thereon  and  retm-n  the  same  to  the  depart- 
ment, properly  certified  as  to  its  accuracy,  not  later  than  January 
twentieth  following,  but  the  commissioner  may  extend  the  time.  The 
commissioner  may  suspend  the  operation  of  this  section,  in  years  when 
the  United  States  takes  a  census  of  manufactures  in  IMassachusetts, 
to  such  degree  as  may  be  necessary  in  order  to  facilitate  co-operation 
between  said  department  and  the  federal  census  authorities  in  the 
collection  and  compilation  of  the  statistics  of  IMassachusetts  manu- 
factures in  such  census  years,  and  the  avoidance  of  needless  duplication 
of  labor  and  expense. 


1 
2 

o 
O 

4 
5 
6 
7 
8 
9 
10 
11 


1 
2 

3 

4 
5 
6 
7 
8 
9 

10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 


Chap.  149.]  labor  and  industries.  1591 

1  Section  172.     Information   so  collected   shall   not  be  used    by  the  information 

2  department,  either  by  publication  or  in  any  other  manner,  so  as  to  dis-  tobesoput.- 

3  close  the  private  affairs  of  any  person,  and  the  department  shall  hold  df^close'' '° 

4  all  such  information  to  be  strictly  confidential.     Any  officer,  agent  or  isse^m'^f?' 

5  employee   of   said    department   who   violates    this    provision    shall    be  f^^-  'o^-  5  s- 

6  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  im-  §§5,'io. ' 

7  prisonment  for  not  more  than  one  year;    but  this  section  shall  not  be 

8  construed  as  prohibiting  said  department  from  tabulating  and  publish- 

9  ing  such  information  relative  to  manufacturing  corporations  as  may  be 
10  required  by  law  to  be  filed  with  other  state  departments. 

1  Section  173.    The   commissioner,  having   first   obtained    authority  Distribution 

2  from  the  governor  and  council,  may  destroy  or  sell  all  such  records,  piperl" 

3  papers  and  schedules  accumulated  in  the  division  as  in  his  judgment  r^^l'  107,  §  4. 

4  are  of  no  value.  i909, 371,  §§  9. 10.  1919,  sso,  §§  eg,  70. 


COMJIISSION   ON   foreign   AND   DOMESTIC   COMMERCE. 

1  Section  174.     The  commission  on  foreign  and  domestic  commerce  Duties. 

2  shall  take  such  measures  as  it  may  deem  suitable  to  develop  and  increase  {920!  514,  §  3. 

3  the  foreign  and  domestic  commerce  of  the  commonwealth,  and  shall  co- 

4  operate  with  any  similar  public  bodies  or  officials  in  de\'eloping  and  in- 

5  creasing  such  commerce.     The  commission,  on  behalf  of  the  common- 

6  wealth,  may  accept  contributions,  and,  subject  to  the  approval  of  the 

7  governor  and  council,  may  expend  the  same  and  also  such  sums  as  may 

8  be  appropriated,  by  the  general  court,  to  carry  out  the  purpose  of  this 

9  section. 

MISCELLANEOUS   PROVISIONS. 

1  Section  175.    Manufacturers  and  others  employing  workmen  may,  useotbeiis, 

2  for  the  purpose  of  giving  notice  to  them,  ring  bells  and  use  whistles  1883.84. 

3  and  gongs  of  such  size  and  weight  and  in  such  manner  and  at  such  fg^-  l°l'_  ^  ^■ 

4  hours  as  the  aldermen  or  selectmen  may  designate  in  ^^Titing.  ^§  33, 145. 

133  Mass.  289.  130  Mass.  239. 

1  Section  176.     If,   in  an  emergency,   special  police  officers  are  ap-  Emergency 

2  pointed,  under  the  name  of  police  officers  or  any  other  name,  to  act  as  is92r4°i3.Ti. 

3  police   officers   for   cjuelling   a   riot   or   disturbance   or   for   protecting  fgog,  5?!;  ^ ''" 

4  property,  no  non-resident  of  the  commonwealth  shall  be  so  appointed  §§34,115. 

5  unless  he  is  a  regular  employee  of  the  person  whose  property  he  is  so 

6  appointed  to  protect. 

1  Section  177.     A  person  may,  if  his  property  is  in  danger,  call  upon  Assistance  ot 

2  the  regular  police  authorities  in  the  commonwealth  for  assistance  in  t'o°prot°e"t'^'''* 

3  its  protection,  and  this  and  the  preceding  section  shall  not  limit  or  fsg^f^s.  §  2. 

4  diminish  such   right;    but  no  person  shall   request  or  authorize  any  f^g^- ^J"!' 5 1^- 

5  person  or  body  of  persons  not  residents  of  the  commonwealth,  except  5§  35, 145. 

6  regular  employees,  to  assist  such  person  with  arms  in  the  defence  of 

7  his  property,  and  no  such  request  or  authority  shall  justify  an  assault 

8  or  attack  with  arms  by  a  non-resident.    Whoever,  being  an  employer 

9  of  labor,  requests  or  authorizes  assistance  in  violation  of  this  section, 

10  and  whoever  renders  such  assistance  with  arms,  shall  be  severally  liable 

11  in  damages  to  each  person  injured  in  person  or  property  thereby. 


1592 


CONCILIATION   AND   ARBITRATION. 


[Chap.  1.50. 


Voting  of 
employees. 
1887.  272,  §  1. 
1890.  423, 
|§  143,  144. 
1893,417, 
§§  7,  336. 
1894,  608. 
§§4.78. 
1898,  548, 
§§  5,  409. 


Section  17S.     No  owner,  superintendent  or  overseer  in  any  manu-  1 

facturing,    mechanical   or    mercantile    establishment    shall   employ   or  2 

permit  to  be  employed  therein  any  person  entitled  to  vote  at  an  elec-  3 

tion,  dm-ing  the  period  of  two  hours  after  the  opening  of  the  polls  in  the  4 

voting  precinct,  ward  or  town  in  which  such  person  is  entitled  to  vote,  5 

if  he  shall  make  application  for  leave  of  absence  during  such  period.  6 

i35,413.       1907,  .560,  §§5,  447.  450.  Penalty,  §  ISO. 


R.  L.  11,  § 
1902,  384. 
1904,  334. 


1907,  .560,  §§5,447,450. 

1909,  514,  §  45. 

1913,  S35,  §§  5,488,503. 


f9i4',"2l)3,°§'r^'      Section  179.    The  department  may  require  employers  to  post  in  con-    1 

1919, 350,  §  69.  gpjcuous  positious  in  any  place  of  employment  such  placards,  posters  or    2 

signs  for  the  information  of  employees  as  it  may  issue.  3 


peTaUy.               Section  180.     Whoever    violates    a    provision  of    this    chapter   for     1 
1890.423,         which  no  specific  penalty  is  provided  shall  be  punished  by  a  fine  of  not    2 

1892, 410,  §  2.    ixiore  than  one  hundred  dollars.           i893, 4i7,  §  336.  i894,  sos,  §  78.           3 

1898,  548,  §  409.          1906,  499,  §§  2,  3.  1911,229.13. 

1900,469.               1907,  560,  §§  447,  456.  1913,  359,  §  2;  779. 

R.  L.  1I,§413:           1909,  514,  §§  20,  36,  §§20,21;  813,  §  13; 

106,  §  §  13,  70.            45,  62,  63,  145.  835,  §  488. 


REFERENCES. 

Construction  of  factory,  Chap.  143,  §  15. 

Temporary  flooring  of  building  in  course  of  construction,  Id.,  §§  17-19. 

Fire  escapes  in  factories,  Id.,  §  21. 

Keeping  fire  escapes  and  stairways  clear,  Id.,  §§  21-23. 

Duties  of  department  in  relation  to  employees  in  bakeries.  Chap.  Ill,  §§  39-41. 

Composition  of  commission  on  foreign  and  domestic  commerce,  Chap.  23,  §  10. 


CHAPTER    150. 

CONCILIATION  AND  ARBITRATION  OF  INDUSTRL\L  DISPUTES. 


Sect. 

1.  Duties  of  board  of  conciliation  and  arbi- 

tration. 

2.  Rules  of  procedure. 

3.  Conciliation. 

4.  Advertising  during  strikes. 

5.  Arbitration. 


Sect. 

6.  Application  for  arbitration. 

7.  E.xpert  assistants. 

8.  Witnesses. 

9.  Local  boards. 
10.  Report. 


Wcfof  ran-         Section  1.     The  board  of  conciliation  and  arbitration  of  the  depart-  1 

ciUationand      nicnt  of  labor  and  industries,  in  this  chapter  called  the  board,  shall  per-  2 

arbitration.  ,,.  -iii-i  n 

1919, 350,  §  72.  form  the  duties  required  by  this  chapter.  3 


Rules  of 
procedure. 
1886,  263,  §  2. 
R.  L.  106,  §  1. 


Section  2.     The  department  of  labor  and  industries  shall  from  time  to     1 
time  establish  rules  of  procedure  for  the  board.  2 

1909,  514,  §  10.  1919,  350,  §§  71,  72. 


?887,'269,°"'  Section  3.  The  mayor  of  a  city  or  the  selectmen  of  a  town,  ha\-ing 
R  L  106,  §  2  knowledge  that  a  strike  or  lockout  is  seriously  tlireatened  or  has  actually 
J?2?'  IfJ't ,     occurred  therein,  shall  at  once  give  notice  to  the  board.    Notice  mav  be 

1904,  313,  §1-.,,  Ill  1*1 

1909.514,  §  11.  given  by  the  employer  or  by  the  employees  concerned  in  the  controversy, 
1919!  35o',  §  72.  strike  or  lockout.    When  the  board  has  knowledge  that  a  strike  or  lock- 
out, which  involves  an  employer  and  liis  present  or  former  employees. 


CeL\P.    150.]  CONCILIATION    AND  ARBITRATION,  1593 

7  is  seriously  threatened  or  has  actually  occurred,  and  such  employer  at 

8  that  time  is  employing,  or  upon  the  occurrence  of  the  strike  or  lockout 

9  was  employing,  not  less  than  twenty-five  persons  in  the  same  general  line 

10  of  business  in  any  town  in  the  commonwealth,  the  board  shall,  as  soon  as 

11  may  be,  communicate  with  such  employer  and  employees  and  endeavor 

12  by  mediation  to  obtain  an  amicable  settlement,  or  endeavor  to  persuade 

13  them  to  submit  the  controversy  to  a  local  board  of  conciliation  and  ar- 

14  bitration  established  under  section  nine  or  to  the  board.     If  a  settle- 

15  ment  is  not  agreed  upon  and  the  parties  refuse  to  submit  the  matter 

16  in  dispute  to  arbitration,  the  board  shall  investigate  the  cause  of  such 

17  controversy  and  ascertain  which  of  the  parties  thereto  is  mainly  respon- 

18  sible  or  blameworthy  for  the  existence  or  continuance  of  the  same,  and 

19  shall,  unless  a  settlement  of  the  controversy  is  reached,  make  and  pub- 

20  lish  a  report  finding  such  cause  and  assigning  such  responsibility  or 

21  blame.    The  board  may  employ  agents  to  assist  in  said  investigation. 

22  It  shall,  upon  the  request  of  the  governor,  investigate  and  report  upon 

23  a  controversy  if  in  his  opinion  it  seriously  affects  or  threatens  seriously 

24  to  affect  the  public  welfare.     The  board  shall  have  the  same  powers  for 

25  the  foregoing  purpose  as  are  given  to  it  by  sections  five  to  eight,  inclu- 

26  sive.    The  board  shall  by  publication  or  otherwise  inform  employers  and 

27  employees  of  their  duty  to  give  notice  to  the  board  before  resorting  to 

28  a  strike  or  lockout  and  of  the  provisions  of  this  chapter  affecting  the 

29  rights  of  employers  and  employees  relative  to  industrial  disputes. 

1  Section  4.    The  provisions  of  sections  twenty-two  and  twenty-three  Advertising 

2  of  chapter  one  hundred  and  forty-nine  relative  to  advertising  during  igi';"!!!^'^'^^' 

3  strikes  shall  cease  to  be  operative  when  the  board  shall  determine  that  If's/I*"' 

4  the  business  of  the  employer,  in  respect  to  which  the  strike  or  other  labor  J^ie.  89.^ 

5  trouble  occm'red,  is  being  carried  on  in  the  normal  and  usual  manner  and  216  Mass.  356. 

6  to  the  normal  and  usual  extent.    Upon  the  application  of  the  employer, 

7  this  question  shall  be  determined  by  said  board,  but  only  after  a  full 

8  hearing  at  which  all  persons  involved  shall  be  entitled  to  be  heard  and 

9  represented  by  counsel.    The  board  shall  give  at  least  three  days'  notice  of 

10  the  hearing  to  the  strikers  and  employees  by  publication  in  at  least  three 

11  daily  newspapers  published  in  the  commonwealth,  and  by  mailing  a 

12  copy  of  said  notice,  postage  prepaid,  to  the  employers  and  to  the  accred- 

13  ited  representatives  of  the  strikers  or  workmen  interested,  when  their 

14  addresses  are  known;    and  in  every  case  the  board  shall  make  every 

15  reasonable  and  diligent  effort  to  give  notice  to  said  strikers  or  interested 

16  workmen. 

1  Section  5.     If  a  controversy  not  involving  questions  which  may  be  Arbitration. 

2  the  subject  of  an  action  at  law  or  suit  in  equity  exists  between  a  person  §§  a'/s.  6.' 

3  employing  not  less  than  twenty-five  persons  in  the  same  general  line  of  ^^l[  iol'.  1 3. 

4  business  and  his  employees,  the  board  shall,  upon  application  as  pro-  Jgog;  II4'.  1 12. 

5  vided  in  the   following   section,  as   soon  as  practicable  visit  the  place  Op  a.  g. 

6  where  the  controversy  exists  and  make  careful  inquiry  into  its  cause,  and 

7  may,  with  the  consent  of  the  governor,  conduct  such  inquiry  outside  the 

8  commonwealth.     The  board  shall  hear  all  persons  interested  who  come 

9  before  it,  advise  the  respective  parties  what  ought  to  be  done  or  sub- 

10  mitted  to  by  either  or  both  to  adjust  said  controversy,  and  make  a 

11  WTitten  decision  thereof  which  shall  at  once  be  made  public,  shall  be 

12  open  to  public  inspection  and  shall  be  recorded  by  the  board.    A  short 


1594 


CONCILIATION    AND    ARBITRATION. 


[Chap.  1.50. 


statement  thereof  may,  in  the  discretion  of  the  board,  be  pubhshed  in  13 
the  annual  report,  and  the  board  shall  cause  a  copy  thereof  to  be  filed  14 
with  the  clerk  of  the  town  in  which  said  business  is  carried  on.  Said  15 
decision  shall  for  six  months  be  binding  upon  the  parties  who  join  in  16 
said  application,  or  until  the  expiration  of  sixty  days  after  either  party  17 
has  given  notice  in  writing  to  the  other  party  and  to  the  board  of  his  18 
intention  not  to  be  boimd  thereby.  Such  notice  may  be  given  to  said  19 
employees  by  posting  it  in  tliree  conspicuous  places  in  the  shop  or  fac-  20 
tory  where  they  work.  21 


Application 
arbitration. 
188b,  263, § 
1887.  269,  § 
1890,  385,  § 
R.  L.  106,  § 
1904,313,  § 
1909,  S14.  § 


Section  6.     The  application  shall  be  signed  bj'  the  employer  or  by  a  1 

majority  of  his  employees  in  the  department  of  the  business  in  which  2 

the  controversy  exists,  or  by  their  didy  authorized  agent,  or  by  both  par-  3 

ties,  and  if  signed  by  an  agent  claiming  to  represent  a  majority  of  the  4 

employees,  the  board  shall  satisfy  itself  that  he  is  didy  authorized  so  to  5 

do;   but  the  names  of  the  employees  giving  the  authority  shall  be  kept  6 

secret.    The  application  shall  contain  a  concise  statement  of  the  existing  7 

controversy  and  a  promise  to  continue  in  business  or  at  work  without  8 

any  lockout  or  strike  until  the  decision  of  the  board,  if  made  within  tliree  9 

weeks  after  the  date  of  filing  the  application.    The  board  shall  forthwith,  10 

after  such  filing,  cause  public  notice  to  be  given  of  the  time  and  place  for  11 

a  hearing  on  the  application,  unless  both  parties  join  in  the  application  12 

and  present  therewith  a  written  request  that  no  public  notice  be  given.  13 

If  such  request  is  made,  notice  of  the  hearings  .shall  be  given  to  the  parties  14 

in  such  manner  as  the  board  may  order,  and  the  board  may  give  public  15 

notice  thereof,  notwithstanding  such  request.    If  the  petitioner  or  peti-  16 

tioners  fail  to  perform  the  promise  made  in  the  application,  the  board  17 

shall  proceed  no  further  thereon  without  the  written  consent  of  the  ad-  18 

verse  party.  19 


Expert 
assistants. 
1890,  385,  § 
1892,  382,  § 
R.L.  106,  § 
1904,313,  § 
1909,514,  § 

1919,  350,  § 

1920,  361. 


Section  7.     In  all  controversies  in  which  application  is  made  under  1 

the  preceding  section,  each  party  may,  in  writing,  nominate  fit  persons  2 

to  act  in  the  case  as  expert  assistants  to  the  board,  and  the  board  may  3 

appoint  one  from  among  the  persons  so  nominated  by  each  party.    Said  4 

experts  shall  be  skilled  in  and  conversant  with  the  business  or  trade  con-  5 

cerning  which  the  controversy  exists;  they  shall  be  sworn  by  a  member  6 

of  the  board  to  the  faithful  performance  of  their  official  duties,  and  a  7 

record  of  their  oath  shall  be  made  in  the  case.    Said   ex-perts  shall,  8 

if  required,   attend  the  sessions  of  the  board,  and  under  its  direction  9 

shall  obtain  and  report  information  concerning  the  wages  paid  and  the  10 

methods  and  grades  of  work  prevailing  in  establislmients  within  the  11 

commonwealth  similar  to  that  in  which  the  controversy  exists,  and  they  12 

may  submit  to  the  board  at  any  time  before  a  final  decision  any  facts,  13 

advice,  arguments  or  suggestions  which  they  may  consider  applicable  14 

to  the  case.    No  decision  of  said  board  shall  be  annomiced  in  a  case  in  15 

which  said  experts  have  acted  without  notice  to  them  of  a  time  and  place  16 

for  a  final  conference  on  the  matters  included  in  the  proposed  decision.  17 

Such  exjjerts  shall  receive  from  the  commonwealth  a  sum  not  exceeding  18 

ten  dollars  each  for  every  day  of  actual  service  and  their  necessary  travel-  19 

ing  expenses.     The  board  may  appoint  such  additional  experts  as  it  20 

considers  necessary,  who  shall  be  qualified  in  fike  manner  and,  under  the  21 

direction  of  the  board,  shall  perform  like  duties  and  be  paid  the  same  22 

fees  as  the  ex-perts  who  are  nominated  by  the  parties.  23 


Chap.  151. 


THE    MIMMlil    WAGE. 


1595 


1  Section  S.     In  all  investigations,  and  inquiries  or  proceedings  con-  witnesses. 

2  ducted  by  the  board,  any  member  thereof  may  summon  witnesses,  may  §5  3.'s.   ' 

3  administer  oaths,  take  testimony,  and  require  the  production  of  books  r^^l.' loei  §  6. 

4  and  documents.    Each  witness  shall  certify  in  writing  the  amount  of  his  }9i|;f4t:  ^  ^^' 

5  travel  and  attendance,  and  the  amount  due  to  him  shall  be  paid  forth-  ^^^^'  ^^o.  §  72. 

6  with  by  the  board. 

1  Section  9.     The  parties  to  any  controversy  described  in  section  fi^'e  {'gs?'2g|''5  7 

2  may  submit  it  in  writing  to  a  local  board  of  conciliation  anfl  arbitration,  iss?!  209;  |  i. 

3  which  may  be  composed  either  of  three  members  mutually  agreed  upon,  1909. 514!  §  I'o. 

4  or  of  a  member  chosen  by  the  employer,  a  member  chosen  by  the  em-  ^®^*'  ^^^'  ^  ^' 

5  ployees  or  their  authorized  representative,  and  a  third,  who  shall  be 

6  chairman,  chosen  by  the  other  two.     Such  local  board  shall  have  and 

7  exercise,  relative  to  matters  referred  to  it,  all  the  powers  of  the  state 

8  board,  and  its  decision  shall  have  such  binding  effect  as  may  be  agreed 

9  upon  in  the  written  submission.     Such  local  board  shall  have  exclusive 

10  jurisdiction  of  the  controversy  submitted  to  it,  but  it  may  ask  the  advice 

11  and  assistance  of  the  state  board.     The  decision  of  such  local  board 

12  shall  be  rendered  within  ten  days  after  the  close  of  any  hearing  held  by 

13  it,  and  shall  forthwith  be  filed  with  the  clerk  of  the  city  or  town  where 

14  the  controversy  arose,  and  a  copy  thereof  shall  be  forwarded  by  said 

15  clerk  to  the  state  board.     Each  of  such  arbitrators  shall  be  entitled  to 

16  receive  from  the  treasury  of  the  city  or  town  where  the  controversy 

1 7  arose,  with  the  approval  in  writing  of  the  mayor  of  the  city  or  the  select- 

18  men  of  the  town,  the  sum  of  tliree  dollars  for  each  day  of  actual  serAnce, 

19  not  exceeding  ten  dollars  for  any  one  arbitration. 

1  Section  10.     The  commissioner  of  labor  and  industries  shall  make  an  Report. 

2  annual  report  of  the  acts  of  the  board  in  performing  the  duties  required  r.  l!  loa.  §  1.' 

3  by  this  chapter. 


1909, 514,  §  10. 


1918,  257,  §  476. 


1919.  5;  350,  §§8,  72. 


1920.  2. 


REFERENCE. 
Witness  fees,  Chap.  262,  §  29. 


CHAPTER     151 


THE   MINIMUM   WAGE. 


Sect. 

1.  Certain  duties  of  the  board  of  concilia- 

tion and  arbitration  relative  to  wages 
paid  to  females. 

2.  Wage  boards. 

3.  Duties  of  wage  boards. 

4.  Review  of  report  of  wage  boards.    Ap- 

peal to  court.     Publication  of  find- 
ings, etc. 

5.  Powers  as  to  rate.s  of  wages. 

6.  Special  license. 

7.  Wages  of  minors. 


Sect. 
S.  Register  of  women  and  minors. 
9.  Certain  statistics  to  be  furnished  to  the 
commission. 

10.  Penalty  for  discrimination. 

11.  Names  of  certain  employers  to  be  pub- 

lished. 

12.  Penalty  for  refusal  to  publish  findings. 

13.  No  liabihty  for  publication  except  for 

wilful  misrepresentation. 

14.  Posting  notices. 

15.  Annual  report.  , 


1  Section  1 .     The  board  of  conciliation  and  arbitration  of  the  depart-  Certain  duties 

2  ment  of  labor  and  industries  in  performing  the  duties  required  by  this  of  conciliation 

3  chapter  shall  be  known  as  the  minimum  wage  commission,  in  this  chap-  relative  to'""'" 


1596 


THE   MINIMUM   WAGE. 


[CiL\P.    151. 


wages  paid  to     ter  Called  the  commission.     It  shall  investigate  the  M-ages  paid  to  female  4 

ml.fof.,  §3.    employees  in  any  occupation  if  it  has  reason  to  believe  that  the  wages  5 

Li^Mass!  99!  ■  paid  to  a  substantial  number  of  such  employees  are  inadequate  to  supply  6 

the  necessary  cost  of  living  and  to  maintain  the  worker  in  health.  7 


Wage  boards. 
1912,  706,  §  4. 
1914,  368,  §  1. 

1919,  72; 
3.50,  §  71. 

1920,  48. 

4  Op.  A.  G. 
447.  494. 


Duties  of 
wage  boards. 

1912,  706,  5  5. 

1913,  673,  I  1. 
4  Op.  A.  G. 
494. 


Section  2.  If  after  such  investigation  the  commission  is  of  the  opin-  1 
ion  that  in  the  occupation  in  question  the  wages  paid  to  a  substantial  2 
number  of  female  employees  are  inadequate  to  supply  the  necessary  cost  3 
of  living  and  to  maintain  the  worker  in  health,  it  shall  establish  a  wage  4 
board  consisting  of  an  equal  number  of  representatives  of  employers  in  5 
the  occupation  in  question,  and  of  persons  to  represent  the  female  em-  6 
ployees  in  said  occupation,  and  of  one  or  more  disinterested  persons  7 
appointed  by  it  to  represent  the  public;  but  the  representatives  of  the  S 
public  shall  not  exceed  one  half  of  the  number  of  representatives  of  either  9 
of  the  other  parties.  The  commission  shall  give  notice  to  employers  and  10 
employees  in  said  occupation  by  publication  or  otherwise  of  its  deter-  11 
mination  to  establish  a  wage  board  and  of  the  number  of  representatives  12 
of  employers  and  of  employees  to  be  chosen  therefor,  and  shall  request  13 
that  said  employers  and  employees,  respectively,  nominate  such  repre-  14 
sentatives  by  furnishing  names  to  it.  15 

The  representatives  of  employers  and  employees  shall  be  selected  by  16 
the  commission  from  names  furnished  by  the  employers  and  by  the  em-  17 
ployees,  respectively;  provided,  that  the  same  are  furnished  within  ten  18 
days  after  such  request;  and  provided,  further,  that  at  least  twice  as  19 
many  names,  respectively,  are  furnished  as  are  required.  If  less  than  20 
this  number  of  names  are  furnished  for  representatives,  either  of  em-  21 
ployers  or  of  employees,  at  least  one  half  the  names  so  furnished  shall  be  22 
selected,  and  the  remaining  places  necessary  may  be  filled  by  the  com-  23 
mission  by  appointments  made  directly  from  employers,  including  officers  24 
of  corporations,  associations  and  partnerships,  or  from  employees  in  the  25 
occupation,  as  the  case  may  be.  The  commission  shall  designate  as  26 
chairman  one  of  the  representatives  of  the  public,  and  shall  make  rules  27 
and  regulations  governing  the  selection  of  members  and  the  modes  of  28 
procedure  of  the  wage  boards,  and  shall  exercise  exclusive  jurisdiction  29 
over  all  questions  arising  with  reference  to  the  validity  of  the  procedure  30 
and  of  the  determinations  of  the  wage  boards.  The  members  of  wage  31 
boards  shall  be  compensated  at  the  same  rate  as  jurors,  and  they  shall  32 
be  allowed  the  necessary  traveling  and  clerical  expenses  incurred  in  the  33 
performance  of  their  duties,  these  payments  to  be  made  from  the  appro-  34 
priation  for  the  expenses  of  the  commission.  The  commission  may  fill  35 
vacancies  arising  in  a  duly  constituted  wage  board  by  appointing  a  suffi-  36 
cient  number  of  suitable  persons  to  complete  the  representation  of  the  37 
employers,  employees  or  public,  as  the  case  may  be.  38 

Section  3.     The  commission  may  transmit  to  each  wage  board  all  1 

pertinent  information  in  its  possession  relative  to  the  wages  paid  in  the  2 

occupation  in  question.     Each  wage  board  shall  take  into  consideration  3 

the  needs  of  the  employees,  the  financial  condition  of  the  occupation  4 

and  the  probable  effect  thereon  of  any  increase  in  the  minimum  wages  5 

paid,  and  shall  endeavor  to  determine  the  minimum  wage,  whether  by  6 

time  rate  or  piece  rate,  suitable  for  a  female  employee  of  ordinary  ability  7 

in  the  occupation  in  question,  or  for  any  or  all  of  the  branches  thereof,  8 

and  also  suitable  minimum  wages  for  learners  and  apprentices  and  for  9 

minors  under  eighteen,     ^^'hen  a  majority  of  the  members  of  a  wage  10 


Chap.  151.]  the  minimum  wage.  1597 

11  board  shall  agree  upon  minimum  wage  determination,  they  shall  report 

12  such  determination  to  the  commission,  together  with  the  reasons  therefor 

13  and  the  facts  relating  thereto. 

1  Section  4.     Upon  receipt  of  a  report  from  a  wage  board,  the  com-  Review  of 

2  mission  shall  review  the  same,  and  may  approve  or  disapprove  any  or  "fge  boards. 

3  all  of  the  determinations  recommended,  or  may  recommit  the  subject  to  tout™'  *° 

4  the  same  wage  board  or  to  a  new  one.     If  the  commission  approves  any  g"(nng's*'e"c°' 

5  or  all  of  the  determinations  of  the  wage  board  it  shall,  after  not  less  than  iw2. 70fi,  §  6. 

6  fourteen  days'  notice  to  employers  paying  a  wage  less  than  the  mini-  wn'.  ses!  §  2. 

7  mum  wage  approved,  give  a  public  hearing  to  such  employers,  and  if,  ci9'i9)'6.' 
S  after   such   public  hearing,   the   commission   finally   approves   the   de- 

9  termination,  it  shall  enter  a  decree  of  its  findings  and  note  thereon  the 

10  names  of  employers,  so  far  as  they  may  be  known  to  it,  who  fail  or  refuse 

11  to  accept  such  minimum  wage  and  agree  to  abide  by  it.    The  commis- 

12  sion  shall  thereafter  publish  at  such  times  and  in  such  manner  as  it  may 

13  deem  advisable  a  summary  of  its  findings  and  of  its  recommendations. 

14  It  shall  also  at  such  times  and  in  such  manner  as  it  shall  deem  advisable 

15  publish  the  facts,  as  it  may  find  them  to  be,  as  to  the  acceptance  of  its 

16  recommendations  by  the  employers  engaged  in  the  industry  to  which  any 

17  of  its  recommendations  relate,  and  may  publish  the  names  of  employers 

18  whom  it  finds  to  be  following  or  refusing  to  follow  such  recommenda- 

19  tions.     An  employer  who  files  a  declaration  under  oath  in  the  supreme 

20  judicial  or  superior  court  to  the  effect  that  compliance  with  the  recom- 

21  mendation  of  the  commission  would  render  it  impossible  for  him  to  con- 

22  duct  his  business  at  a  reasonable  profit  shall  be  entitled  to  a  review  of 

23  said  recommendation  by  the  coiu"t  under  the  rules  of  equity  procedure. 

24  The  burden  of  proving  the  averments  of  said  declaration  shall  be  upon 

25  the  complainant.     If,  after  such  review,  the  court  finds  the  averments  of 

26  the  declaration  to  be  sustained,  it  may  issue  an  order  restraining  the  com- 

27  mission  from  publishing  the  name  of  the  complainant  as  one  who  refuses 

28  to  comply  with  its  recommendations.     But  such  review,  or  any  order 

29  issued  by  the  court  thereupon,  shall  not  be  an  adjudication  affecting  the 

30  commission  as  to  any  employer  other  than  the  complainant,  and  shall  in 

31  no  way  affect  its  right  to  publish  the  names  of  those  employers  who 

32  comply  with  its  recommendations.     The  type  in  which  the  employers' 

33  names  shall  be  printed  shall  not  be  smaller  than  that  in  which  the  news 

34  matter  of  the  newspaper  is  printed.    The  publication  shall  be  attested 

35  by  the  signatures  of  at  least  a  majority  of  the  commission. 

1  Section  5.    Whenever  a  minimum  wage  rate  has  been  established  Powers  as  to 

,  ,  ,      .  ^  .    .  p       .   ,  rates  of  wages. 

2  m  any  occupation,  the  commission  mav,  upon  petition  of  either  em-  1912. 70fi,  §  s. 

,*  ,  .A*.  ..*...  1920,  387. 

3  ployers  or  employees,  or  it  in  its  opinion  such  action  is  necessary  to  meet 

4  changes  in  the  cost  of  living  may  without  such  petition,  reconvene  the 

5  wage  board  or  establish  a  new  one,  and  any  recommendation  made  by 

6  such  wage  board  shall  be  dealt  with  in  the  same  manner  as  the  original 

7  recommendation  of  a  wage  board. 

1  Section  6.     For  any  occupation  in  which  a  minimum  time  rate  only  Special  license. 

2  has  been  established,  the  commission  may  issue  to  any  woman  physically  1919]  350',  §  "'2. 

3  defective  a  special  license  authorizing  the  employment  of  the  licensee  for  (lais)  7.' 

4  a  wage  less  than  the  legal  minimum  wage;  provided,  that  it  is  not  less 

5  than  the  special  minimum  wage  fixed  for  that  person. 


1598 


THE    MINIMUM   WAGE. 


[Cli\P.    151. 


^nors°'  Section  7.     The  commission  may  at  any  time  inquire  into  the  wages  1 

1912.  706,  §  10.  paid  to  minors  in  any  occupation  in  which  the  majority  of  employees  are  2 

minors,  and  may,  after  giving  public  hearings,  determine  minimum  wages  3 

suitable  therefor.     When  the  commission  has  made  such  a  determination,  4 

it  may  proceed  in  the  same  manner  as  if  the  determination  had  been  5 

recommended  to  it  by  a  wage  board.  6 


Register  of 
women  and 
minors. 

1912,  70fi,  §  11, 

1913,  330. 

1914,  368,  §  4. 
1919,  76;  350, 
§72. 


6 


9 


Section  S.  Every  employer  of  women  and  minors  shall  keep  a  reg- 
ister of  the  names,  addresses  and  occupations  of  all  women  and  minors 
employed  by  him,  together  with  a  record  of  the  amount  paid  each  week 
to  each  woman  and  minor,  and  if  the  commission  shall  so  require,  shall 
also  keep  for  a  specified  period,  not  exceeding  six  months,  a  record  of  the 
hours  worked  by  such  employees,  and  shall,  on  request  of  the  commis- 
sion or  of  the  department  of  labor  and  industries,  permit  the  commission 
or  any  of  its  members  or  agents,  or  the  department  or  any  duly  accredited 
agent  thereof,  to  inspect  the  said  register  and  to  examine  such  parts  of 
the  books  and  records  of  employers  as  relate  to  the  wages  paid  to  women  10 
and  minors,  and  the  hours  worked  by  such  employees.  Any  employer  11 
failing  to  keep  a  register  or  records  as  herein  provided,  or  refusing  to  12 
permit  their  inspection  or  examination,  shall  be  punished  by  a  fine  of  not  V.) 
less  than  five  nor  more  than  fifty  dollars.  The  commission  may  also  sub-  14 
poena  witnesses,  administer  oaths  and  take  testimony,  and  require  the  15 
production  of  books  and  documents.  Such  witnesses  shall  be  summoned  IG 
in  the  same  manner  and  be  paid  by  the  commonwealth  the  same  fees  17 
as  witnesses  before  the  superior  court.  IS 


Certain  sta- 
tistics to  be 
furnished  to 
the  commission. 
1912,  706,  §  12. 
1919,  350,  I  69. 


Section  9.     Upon  request  of  the  commission,  the  department  of  labor  1 

and  industries  shall  cause  to  be  gathered  such  statistics  and  other  data  2 

as  the  commission  may  require,  and  the  cost  thereof  shall  be  paid  out  of  .3 

the  appropriation  made  for  the  expenses  of  the  commission  in  reference  to  4 

the  minimum  wage.  5 


Penalty  for 
discrimination. 

1912,  706,  §  13. 

1913,  673,  §  3. 

1914,  368,  §  5. 


Section  10.  No  employer  shall  discharge  or  in  any  other  manner  1 
discriminate  against  any  employee  because  such  employee  has  testified,  2 
or  is  about  to  testify,  or  has  served  or  is  about  to  serve  upon  a  wage  3 
board,  or  is  or  has  been  active  in  the  formation  thereof,  or  has  given  or  4 
is  about  to  give  information  concerning  the  conditions  of  such  employee's  5 
employment,  or  because  the  employer  believes  that  the  employee  may  G 
testify,  or  may  serve  upon  a  wage  board,  or  may  give  information  con-  7 
cerning  the  conditions  of  the  employee's  employment,  in  any  in^•estiga-  S 
tion  or  proceeding  relative  to  the  enforcement  of  this  chapter.  Whoever  9 
violates  this  section  shall  be  punished  by  a  fine  of  not  less  than  two  hun-  10 
dred  nor  more  than  one  thousand  dollars.  ■         1 1 


certafnem-            Section  11.     The   commissiou   shall   from   time   to   time   determine  1 

"ISibhed' ''''      whether  employers  in  each  occupation  investigated  are  obeying  its  de-  2 

23i"m °'''  m'^'  '^^^^^'  ^^'^  shall  publish,  in  the  manner  provided  in  section  four,  the  name  3 

of  any  employer  whom  it  finds  to  be  violating  any  such  decree.  4 


refusaUo""^           Section  12.     Any  newspaper  refusing  or  neglecting  to  publish  the  1 

m"'^''*''  ^°''"      findings,  decrees  or  notices  of  the  commission  at  its  regular  rates  for  the  2 

1912  706,  §15.  space  taken  shall  be  punished  b\'  a  fine  of  not  less  than  one  hundred  3 

231  Mass.  99.         ,    ,,  ^  • 

dollars.  4 


Ch-^p.  152.] 


WORKMEN  S  COMPENSATION. 


1599 


1  Section  13.     No    member   of   the   commission,  and   no  newspaper  No  liability 

2  publisher,  proprietor,  editor  or  employee  thereof,  shall  be  liable  to  an  exc^p"  fo™  '°" 

3  action  for  damages  for  publishing  the  name  of  any  employer  as  pro-  JVpreseSt!ation. 

4  \'ided  for  in  tliis  chapter,  unless  such  publication  contains  some  wilful  23i"Ma"3s.  99^'' 

5  misrepresentation. 


Section  14.     The  commission  may  require  employers  in  any  occupa-  Posting 


notices. 
1915,  65. 


2  tion  to  post  notices  of  its  hearings  or  of  nominations  for  wage  boards,  or 

3  of  decrees  that -apply  to  theii"  employees,  in  such  reasonable  way  and  slofiJg. 

4  for  such  length  of  time  as  it  may  direct.     Whoever  refuses  or  fails  to  post 

5  such  notices  or  decrees,  when  so  required,  shall  be  punished  by  a  fine  of 

6  not  less  than  five  nor  more  than  fifty  dollars.     The  department  of  labor 

7  and  industries  shall  enforce  this  section. 


1  Section  15.     The  commissioner  of  labor  and  industries  shall  make  Annual  report^ 

2  an  annual  report  of  the  acts  of  the  commission  in  performing  the  duties  1919!  350,' 

3  required  by  this  chapter. 


18,  71. 


CHAPTER     152. 

WORKMEN'S   COMPENSATION. 


Sect. 

1.  Definitions. 

2.  Powers  and  duties  of  department. 

3.  Duties  of  division  of  industrial  training. 
i.  Annual  report. 

PROCEDHBE. 

5.  Rules,  process,  witnesses. 

6.  Agreement  for  compensation. 

7.  Hearing  by  one  member. 

8.  Investigation  by  the  member. 

9.  Examination  by  physician. 

10.  Hearing  by  reviewing  board. 

11.  Powers  of  superior  court. 

12.  Weekly  payments  may  be  changed. 

13.  Fees  of  phy.sicians,  etc. 

14.  Frivolous  proceedings.     Costs. 

15.  Legal    liability   for   injuries.     Election, 

etc. 

16.  Decision  of  department.    Enforcement. 

17.  Decision  of  department,  etc.,  not  sus- 

pended by  appeal. 

18.  Independent  contractor,  etc. 

19.  Notice    of    injuries    to    be    given    to 

department. 

20.  Hospital  records  admissible  as  evidence. 

21.  Notice  to  employees. 

22.  Same  subject. 

23.  Acceptance  of  payment,  etc.,   by  em- 

ployee releases  employer  from  liabil- 
ity, etc. 

24.  Notice  by  employee  to  retain  rights  at 

common  law. 

25.  Payment  of  judgment  by  insured. 


Sect. 


PAYMENTS. 


26.  Payments. 

27.  Misconduct  by  employee  bars  compen- 

sation. 

28.  Misconduct  by  employer.    Double  com- 

pensation. 

29.  Waiting  period. 

30.  Medical  services,  etc. 

31.  Death. 

32.  Dependents. 

33.  Funeral  expenses. 

34.  Total  incapacity. 

35.  Partial  incapacity. 

36.  Payments  for  certain  specific  injuries. 

37.  Method    of   payment    for    certain   in- 

juries. 

38.  Savings,  etc.,  not  to  be  deducted. 

39.  PajTuents  in  case  of  death. 

40.  Guardian,  etc.,  may  claim  rights. 

41.  Notice  and  claim. 

42.  Form  of  notice. 

43.  Ser\ace  of  notice. 

44.  Notice     not    invalid     for     inaccuracy, 

etc. 

45.  Examination  by  physician. 

46.  Rights    to    compensation    cannot    be 

waived. 

47.  Payment  not  assignable. 

48.  Lump   sums  in    lieu    of    weekly   pay- 

ments. 

49.  Claim. 

50.  Interest  in  appealed  cases. 

51.  Compensation  of  young  employee.     , 


1600 


WORKMEN  S   COMPENSATION. 


[Ch.\p.  152. 


Sect. 


INSURANCE    COMPANIES. 


52.  Insurance  companies. 
63.  Mutual  companies. 

54.  Form  of  insurance  policy. 

55.  Approval  by  commissioner  of  insurance. 

56.  Joint  and  several  poUcies. 

57.  Deposit  by  company  of  value  of  out- 

standing claims. 

58.  Commissioner  to  compute  value. 

59.  Expenses  of  custody  of  deposit. 

60.  Penalty  for  failure  to  make  deposit. 

61.  Bond  of  foreign  company. 

62.  Foreign  companies  ceasing  to  do  busi- 

ness. 

63.  Information  by  insurance  companies  on 

request  of  the  department. 


Sect. 

64.  Rules  by  insurer. 

65.  Special  fund  for  certain  payments. 

MISCELLANEOUS   PKOVISIONS. 

66.  Modification  of  liability. 

67.  Application  of  the  preceding  section. 
6S.  Application  of  certain  other  laws. 

69.  Compensation  by  the  commonwealth, 

etc. 

70.  Procedure. 

71.  Other  remedies  excluded. 

72.  Waiver  of  rights  by  employee. 

73.  Election    between    compensation    and 

pension. 

74.  Application  of  sections  69  to  75. 

75.  Agents  for  enforcing  sections  69  to  74. 


Definitions. 
1911.  751, 
V,  §  2. 

1913.  568. 

1914,  708,  i  13. 

215  Mass.  96. 
223  Mass.  187. 
225  Mass.  349. 

227  Mass.  456. 

228  Mass.  334. 

229  Mass.  325. 
234  Mass.  137, 
145. 


222  Mass.  401, 
53S.  563. 

223  Mass.  378. 

224  Mass.  86. 

225  Mass.  66. 


216  Mass.  51. 

217  Mass.  86. 

218  Mass.  404. 

219  Mass.  244, 
560. 

220  Mass.  290. 
222  Mass.  487. 
227  Mass.  106, 
237 
228'Mas3.  316. 

230  Mass.  600. 

231  Mass.  313. 
233  Mass.  570. 

232  Mass.  487. 


Section  1.  The  following  words  as  used  in  this  chapter  shall,  unless  1 
a  different  meaning  is  plainly  required  by  the  context  or  specifically  pre-  2 
scribed,  have  the  following  meanings:  3 

(1)  "Average  weekly  wages",  the  earnings  of  the  injured  employee  4 
during  the  period  of  twelve  calendar  months  immediately  preceding  the  5 
date  of  injury,  divided  by  fifty-two;  but  if  the  injured  employee  lost  6 
more  than  two  weeks'  time  during  such  period,  the  earnings  for  the  remain-  7 
der  of  such  twelve  calendar  months  shall  be  divided  by  the  number  of  8 
weeks  remaming  after  the  time  so  lost  has  been  deducted,  ^^^le^e,  by  9 
reason  of  the  shortness  of  the  time  during  which  the  employee  has  been  10 
in  the  employment  of  his  employer  or  the  nature  or  terms  of  the  employ-  11 
ment,  it  is  impracticable  to  compute  the  average  weekly  wages,  as  above  12 
defined,  regard  may  be  had  to  the  average  weekly  amount  which,  during  1.3 
the  twelve  months  previous  to  the  injury,  was  being  earned  by  a  person  14 
in  the  same  grade  employed  at  the  same  work  by  the  same  employer,  15 
or,  if  there  is  no  person  so  employed,  by  a  person  in  the  same  grade  em-  16 
ployed  in  the  same  class  of  emplojTnent  and  in  the  same  district.  17 

(2)  "Department",  the  department  of  industrial  accidents.  18 
(.3)  "Dependents",  members  of  the  employee's  family  or  next  of  kin  19 

who  were  wholly  or  partly  dependent  upon  the  earnings  of  the  employee  20 
for  support  at  the  time  of  the  injury.  22s  Mass.  sss.  21 

229  Mass.  435.  231  Mass.  261.  233  Mass.  287.  236  Mass.  204. 

(4)  "Employee",  every  person  in  the  service  of  another  under  any  22 
contract  of  hire,  express  or  implied,  oral  or  \\Titten,  except  masters  of  and  23 
seamen  on  vessels  engaged  in  interstate  or  foreign  commerce,  and  except  24 
one  whose  employment  is  not  in  the  usual  course  of  the  trade,  business,  25 
profession  or  occupation  of  his  employer.  Any  reference  to  an  employee  26 
who  has  been  injured  shall,  when  the  emploj-ee  is  dead,  also  include  his  27 
legal  representati\es,  dependents  and  other  persons  to  whom  compensa-  28 
tion  may  be  payable.  29 

(5)  "Employer"  includes  the  legal  representative  of  a  deceased  30 
employer.  31 

(6)  "Insured"  or  "insured  person",  an  employer  who  has  provided  32 
by  insurance  for  the  payment  to  his  employees  of  the  compensation  33 
required  by  this  chapter.  34 

(7)  "Insurer",  any  insurance  company  which  has  insured  the  com-  35 
pensation  payable  by  an  employer  under  this  chapter.  36 


CiL\.p.  152.]  workmen's  compensation.  1601 

37  (8)   "Reviewing  board",  the  reviewing  board  designated  under  section  1917,297.  §  1. 

38  three  of  chapter  twenty-four. 

1  Section  2.     The  department  shall  make  all  necessary  inspections  and  juJ^^of"'' 

2  investigations  relating  to  causes  of  injuries  for  which  compensation  may  department. 

3  be  claimed,  and  for  this  purpose  any  member  or  employee  thereof  may 

4  at  any  time  enter  places  of  empIo;y^nent  when  being  used  for  business 

5  pm-poses.     It  shall  also  have  the  powers  and  duties  set  forth  in  this 
G  chapter. 

1  Section  3.     The  division  of  industrial  training  shall  aid  the  persons  Duties  of 

2  whose  earning  capacity  has  been  impaired  by  industrial  accident  while  fnairstriaf 

3  residents  of  the  commonwealth  in  obtaining  such  education,  training  and  i9''i8'23i,  §  3, 

4  employment  as  will  tend  to  restore  their  earning  capacity.     It  may  co- 

5  operate  with  the  United  States  government,  and  in  co-operation  with 

6  the  department  of  education  may  establish  and  maintain,  or  assist  in  so 

7  doing  in  schools  or  institutions  supported  wholly  or  in  part  by  the  com- 

8  monwealth,  such  courses  as  it  may  deem  expedient,  and  otherwise  may 

9  act  in  such  manner  as  it  may  deem  necessary  to  accomplish  the  purpose 
10  of  this  section. 

1  Section  4.     The  department  shall  make  an  annual  report,  and  shall  fj'i4"65yf's°i*' 

2  include  therein  a  detailed  description  of  the  work  of  the  division  of  in-  isisi  231!  §  1. 

3  dustrial  training.    It  may  issue  bulletins  containing  information  relating 

4  to  such  work. 

procedure. 

1  Section  5.     The  department  may  make  rules  consistent  with  this  Rules,  process, 

2  chapter  for  carrying  out  its  provisions.     Process  and  procedure  shall  be  igiTlrli'. 

3  as  simple  and  summary  as  reasonably  may  be.    The  department  or  any  i9'i'2f  In.  §  s. 

4  member  thereof  may  subpoena  witnesses,  administer  oaths,  and  examine  2i9*Ma"s3' Is^' 

5  such  parts  of  the  books  and  records  of  the  parties  to  a  proceeding  as  re-  ^28  Mass.  213. 

6  late  to  questions  ui  dhspute.     Lpon  the  written  request  01  the  depart-  233  Mass.  297. 

7  ment  or  of  any  member  thereof,  together  with  interrogatories  and  cross-  (1917)  77. 

8  interrogatories,  if  any  there  be,  filed  with  the  clerk  of  the  superior  court 

9  for  any  county,  commissions  to  take  depositions  of  persons  or  witnesses 

10  residing  without  the  commonwealth,  or  in  foreign  countries,  or  letters 

11  rogatory  to  a  court  in  another  state  or  to  a  court  in  a  foreign  country, 

12  shall  forthwith  issue  from  the  said  superior  court,  as  in  cases  pending 

13  therein;  and  upon  the  return  of  the  said  depositions  or  answers  to  letters 

14  rogatory  the  same  shall  be  opened  by  the  clerk  of  the  court  issuing  the 

15  commissions  or  letters,  and  the  said  clerk  shall  endorse  thereon  the  date 

16  when  a  deposition  or  answer  to  letters  rogatory  was  received,  and  the 

17  same  shall  forthwith  be  delivered  to  the  department.     No  entry  fee  shall 

18  be  charged  in  such  cases.     The  fee  for  attending  as  a  witness  before  the 

19  department  shall  be  one  dollar  and  fifty  cents  a  day;  for  attending  before 

20  a  member  of  the  department,  fifty  cents  a  day;  in  both  cases,  five  cents 
21a  mile  for  travel  out  and  home.    The  superior  court  may  enforce  by  proper 

22  proceedings  the  provisions  of  this  section  relating  to  the  attendance  and 

23  testimony  of  witnesses  and  the  examination  of  books  and  records. 

1  Section  6.     If  the  insurer  and  the  injured  employee  reach  an  agree-  Agreement 

2  ment  in  regard  to  compensation,  a  memorandum  thereof  shall  be  filed  p^lmtTon. 

3  with  the  department,  and,  if  approved  by  it,  the  memorandum  shall  for  in's*^^" 


1602 


WORKMEN  S   COMPENSATION. 


[Chap.  152. 


all  purposes  be  enforceable  under  section  eleven. 


1912,  571.  §  9. 

231  Mass'  469!  be  approved  bv  said  department  only  when  the  terms  conform  to  this 

233  Mass.  4S5.  „!,,„<. 

234  Mass.  o.  Cliaptcr 


Such  agreements  shall  4 
5 
6 


Hearing  by 
one  member. 

1911.  751, 
III.  §  5. 

1912,  571,  §  10. 
1914,  70S,  §  9. 
1917,  297,  §  2. 
218  Mass.  346. 
228  Ma.ss.  213. 
231  Mass.  469. 
236  Mass.  588. 


Section  7.  If  the  insurer  and  the  injured  employee  fail  to  reach  an 
agreement  in  regard  to  compensation,  or  if  they  ha\-e  reached  such  an 
agreement,  which  has  been  signed  and  filed  in  accordance  with  this 
chapter,  and  compensation  has  been  paid  or  is  due  in  accordance  there- 
with, and  the  parties  thereto  then  disagree  as  to  the  continuance  of  any 
weekly  payments  under  such  agreement,  either  party  may  notify  the 
department,  which  shall  thereupon  assign  the  case  for  hearing  by  a  mem- 
ber thereof. 


Investigation 
bv  ttie  member. 
1911,  751, 
III,  §7. 
1912,571,  §  12. 
1917,  297,  §  4. 

215  Mass.  480. 

216  Mass.  51. 
220  Mass.  17. 
222  Mass.  487. 
227  Mass,  470, 
558. 

232  Mass.  487. 
235  Mass.  387. 


Section  8.  Such  member  shall  make  such  inquiries  and  in\estiga- 
tions  as  shall  be  deemed  necessary.  The  hearing  shall  be  held  in  the  town 
where  the  accident  occurred  or  in  such  other  place  as  the  department 
may  designate;  and  the  decision  of  the  member,  together  with  a  state- 
ment of  the  evidence,  his  findings  of  fact,  rulings  of  law,  and  other  matters 
pertinent  to  questions  arising  before  him,  shall  be  filed  with  the  depart- 
ment. Unless  a  claim  for  re\iew  is  filed  by  either  party  within  seven 
davs,  the  decision  shall  be  enforceable  under  section  ele\'en. 


Examination 

by  physician. 

1911,751, 

III,  §8. 

1914,  708,  §  10. 

1916,72. 

219  Mass.  189. 


Section  9.     The  department  or  any  member  thereof  may  appoint  a  1 

duly  qualified  impartial  physician  to  examine  the  injured  employee  and  2 

to  report.    The  fee  for  this  service  shall  be  five  dollars  and  traveling  ex-  3 

penses,  but  the  department  may  allow  additional  reasonable  amounts  in  4 

extraordinary  cases,  and  the  insurer  shall  reimburse  the  department  for  5 

the  amount  so  paid.    The  report  of  the  physician  shall  be  admissible  as  6 

evidence  in  any  proceeding  before  the  department  or  a  member  thereof;  7 

provided,  that  the  employee  and  the  insurer  have  seasonably  been  fur-  8 

nished  with  copies  thereof.  9 


Hearing  by 

reviewing 

hoard. 

1911,751,111, 

§  10. 

1912,  571,  §  13. 

1917,  297, 

§§  1,  6. 

219  Mass.  189. 

222  Mass.  98. 

223  Mass.  378. 
227  Mass.  269, 
456. 


Section  10.  If  a  claim  for  a  re\-iew  is  filed  under  section  eight,  the 
reviewing  board  shall  hear  the  parties,  and  may  hear  evidence  in  regard  to 
pertinent  matters  and  may  revise  the  decision  in  whole  or  in  part,  or  may 
refer  the  matter  back  to  the  member  for  further  findings  of  fact,  and 
shall  file  its  decision  with  the  records  of  the  proceedings  and  notify  the 
parties.    No  party  shall  as  of  right  be  entitled  to  a  second  hearing  upon 

questions  of  fact.  234  Mass.  475.  236  Mass.  588. 


Powers  of 
superior 
court. 
1911.751. 
§  11. 

1912,  571, 
§  14. 

1917,  297, 
§§  1,7. 

215  Mass. 
497. 

216  Mass. 
586. 

217  Mass. 
76. 

219  Mass. 
222  Mass. 
226  Mass. 
228  Mass. 

230  Mass. 

231  Mass. 
402. 

232  Mass. 


Ill, 


480. 

51, 

36, 

430. 

1. 

143. 

31. 

583. 

297, 

487. 


Section  11.  Any  party  in  interest  may  present  certified  copies  of 
an  order  or  decision  of  the  reviewing  board,  a  decision  of  a  member  from 
which  no  claim  for  review  has  been  filed  within  the  time  allowed  therefor, 
or  a  memorandum  of  agreement  appro\ed  by  the  department,  and  all 
papers  in  connection  therewith,  to  the  superior  court  for  the  county  in 
which  the  injury  occurred  or  for  the  county  of  Suft'olk,  whereupon  said 
court  shall  render  a  decree  in  accordance  therewith  and  notify  the  parties. 
Such  decree  shall  have  the  same  effect,  and  all  proceedings  in  relation  8 
thereto  shall  thereafter  be  the  same,  as  though  rendered  in  a  suit  duly  9 
heard  and  determined  by  said  court,  except  that  there  shall  be  no  appeal  10 
therefrom  upon  questions  of  fact  or  where  the  decree  is  based  upon  all 
decision  of  a  member  or  a  memorandum  of  agreement,  and  except  that  12 
there  .shall  be  no  appeal  from  a  decree  based  upon  an  order  or  decision  13 


10. 


Chap.  152.]  workmen's  compens.^tion.  1603 

14  of  the  re\ie\ving  board  which  has  not  been  presented  to  the  court  within  23.3  Mass.  4,ss. 

15  ten  days  after  the  notice  of  the  fihng  thereof  by  said  board.     Upon  the 

16  presentation  to  it  of  a  certified  copy  of  a  decision  ending,  diminisliing  or 

17  increasing  a  weekly  payment  under  the  following  section,  the  court  shall 
IS  revoke  or  modify  the  decree  to  conform  to  such  decision. 

1  Section  12.     Questions  as  to  a  weekly  payment  may  be  heard  and  cent's' ma>^be 

2  decided  bv  the  re\iewing  board  or  any  member  of  the  department,  and  "!!fi"5:^'',  „, 

3  the  reviewing  board  or  siicii  member  may,  m  accordance  with  the  evidence  §  12. 

••  •  •  1914  70S    §  11 

4  and  subject  to  this  chapter,  issue  any  order  deemed  advisable.     If  the  im'.  297!  §  8. ' 

5  case  is  heard  and  decided  by  a  member,  his  decision  may  be  reviewed  235  Mass.  387. 

6  under  sections  eight  and  ten. 

1  Section  13.     Fees  of  attorneys  and  physicians  and  charges  of  hospitals  Fees  of 

2  for  services  under  this  chapter  shall  be  subject  to  the  approval  of  the  i9n,'75ifiii°' 

3  department.     If  the  insurer  and  any  physician  or  hospital,  or  the  em-  fg\'^-  708,  §  12. 

4  ployee  and  any  attorney,  fail  to  agree  as  to  the  amount  to  be  paid  for  2?6\iaM'  292 

5  such  ser\"ices,  either  party  may  notify  the  department,  which  may  there-  22s  Mass.  142. 

6  upon  assign  the  case  for  hearing  by  a  member  thereof.     The  member 

7  shall  report  the  facts  to  the  department  for  decision,  and  the  decision 

8  shall  be  enforceable  under  section  eleven. 

1  Section  14.     If  the  reviewing  board,  any  member  of  the  department  Frivolous 

2  or  any  court  before  which  proceedings  under  this  chapter  are  brought  ^oTt^  "'^^' 

3  determines  that  such  proceedings   have  been   brought,  prosecuted   or  5^/4'  "'^'  "'■ 

4  defended  without  reasonable  ground,  the  whole  cost  of  the  proceedings  l^^i^Jslso 

5  shall  be  assessed  upon  the  party  who  has  so  brought,  prosecuted  or  de-  219  Mass.  ise. 

6  fended  them. 

1  Section  15.     Where  the  injury  for  which  compensation  is  payable  Lesaiiia- 

2  was  caused  under  circumstances  creating  a  legal  liability  in  some  person  iUjunes!'^ 

.')  other  than  the  insured  to  pay  damages  in  respect  thereof,  the  employee  fgii'^Sifiii, 

4  may  at  his  option  proceed  either  at  law  against  that  person  to  recover  |gi|  ^^g 

5  damages  or  against  the  insurer  for  compensation  under  this  chapter,  21U  iiass.  ssb. 
()  but  not  against  both;  and  if  compensation  be  paid  under  this  chapter,  seo. 

^    .  1       •  P  •      ,  1  r  J.I  I  •      ■ ,  222  Mass.  306. 

t  the  insurer  may  enforce,  in  the  name  or  the  employee  or  in  its  own  name  225  Mass.  151. 

8  and  for  its  own  benefit,  the  liability  of  such  other  person;  and  in  case  the  I31  Mass!  i70. 

9  insurer  recovers  a  sum  greater  than  that  paid  by  it  to  the  employee, 
lU  four  fifths  of  the  excess  shall  be  paid  to  the  employee. 

1  Section  16.     Questions  arising  under  this  chapter,  if  not  settled  by  Decision  of 

2  agreement  by  the  parties  interested  therein,  shall,  except  as  otherwise  Enlorcement. 
:?  provided  in  this  chapter,  be  determined  by  the  department.    The  decisions  i^'^'^.J' ''si.  m. 

4  of  the  department  shall  for  all  purposes  be  enforceable  under  section  jgJ^M^gs'  ul'^' 

5  eleven. 

1  Section  17.     Orders  or  decisions  of  the  reviewing  board  or  depart-  Decision  of 

2  ment,  decrees  of  the  superior  court  upon  such  orders,  decisions  of  a  erc'^not"""' 
'  3  member  of  the  department  from  which  no  claim  for  re\iew  has  been  bjf appeaf. 

4  filed  within  the  time  allowed  therefor,  or  memoranda  of  agreements  ItWuss.so. 

5  approved  by   the  department    shall    ha\e   efi'ect,    notwithstanding    an  ^■'°  ^'*'''-  ^'''^■ 

6  appeal,  until  it  is  otherwise  ordered  by  a  justice  of  the  supreme  judicial 

7  court,  who  may  in  any  county  suspend  or  modify  such  decree,  order  or 

8  decision,  during  the  pendency  of  the  appeal. 


1604 


WORKMEN  S   COJIPENSATION. 


[Chap.  152. 


Independent 

contractor, 

etc. 

1911,751,111. 

§17. 

21S  Mass.  1. 

224  Mass.  571. 

225  Ma-ss.  1. 

226  Mass.  1. 

228  Mass.  Slfi. 

229  Mass.  193, 
573. 

232  Mass.  4  50, 
458. 

233  Mass.  577. 

234  Mass.  330. 


Section  18.     If  an  insured  person  enters  into  a  contract,  written  or  1 

oral,  with  an  independent  contractor  to  do  such  person's  work,  or  if  such  2 

a  contractor  enters  into  a  contract  with  a  sub-contractor  to  do  all  or  3 

any  part  of  the  work  comprised  in  such  contract  with  the  insured,  and  4 

the  insurer  would,  if  such  work  were  executed  by  employees  iinmedi-  5 

ately  employed  by  the  insured,  be  liable  to  pay  compensation  under  this  6 

chapter   to  those  employees,  the  insurer  shall  pay  to  such  employees  7 

any  compensation  which  would  be  payable  to  them  under  this  chapter  if  8 

the  independent  or  sub-contractors  were  insured  persons.      The  insurer,  9 

however,  shall  be  entitled  to  recover  indemnity  from  any  other  person  10 

who  would  have  been  liable  to  such  employees  independently  of  this  11 

section;  and  if  the  insurer  has  paid  compensation  under  this  section,  it  12 

may  enforce,  in  the  name  of  the  employee  or  in  its  own  name  and  for  its  1.3 

benefit,  the  liability  of  such  other  person.    This  section  shall  not  apply  14 

to  any  contract  of  an  independent  or  sub-contractor  which  is  merely  15 

ancillary  and  incidental  to,  and  is  no  part  of  or  process  in,  the  trade  or  16 

business  carried  on  by  the  insured,  nor  to  any  case  where  the  injury  17 

occurred  elsewhere  than  on,  in  or  about  the  premises  on  which  the  con-  18 

tractor  has  undertaken  to  execute  the  work  for  the  insured  or  which  are  19 

under  the  control  or  management  of  the  insured.  20 


Notice  of  in- 
juries to  be 
given  to  de- 
partment. 
1911,751,111, 
§  18. 

1913,  746,  §  1. 
217  Mass.  223. 
228  Mass.  31. 
231  Mass.  529. 


Hospital 
records  ad- 
missible as 
evidence. 
1919,  198. 


Section  19.  Every  employer  shall  hereafter  keep  a  record  of  all  in-  1 
juries,  fatal  or  otherwise,  received  by  his  employees  in  the  course  of  their  2 
employment.  Within  forty-eight  hours,  not  counting  Sundays  and  legal  3 
holidays,  after  the  occurrence  of  an  injury,  a  written  report  thereof  4 
shall  be  made  to  the  department  on  blanks  to  be  procured  from  it.  Upon  5 
the  termination  of  the  disability  of  the  injured  employee,  the  employer  6 
shall  make  a  supplemental  report  upon  blanks  to  be  procured  from  it.  7 
If  the  disability  extends  beyond  a  period  of  sixty  days,  the  employer  8 
shall  report  to  the  department  at  the  end  of  such  period  that  the  injured  9 
employee  is  still  disabled,  and  upon  the  termination  of  the  disability  10 
shall  file  a  final  supplemental  report  as  provided  above.  11 

The  said  reports  shall  contain  the  name  and  nature  of  the  business  of  12 
the  employer,  the  situation  of  the  establishment,  the  name,  age,  sex  13 
and  occupation  of  the  injured  employee,  and  shall  state  the  date  and  hour  14 
of  any  accident  causing  the  injury,  the  nature  and  cause  of  the  injury,  15 
and  other  information  required  by  the  department.  16 

Employers  refusing  or  neglecting  to  make  the  report  required  by  this  17 
section  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars.  18 

Copies  of  reports  of  injuries  filed  by  employers  with  the  department  19 
and  statistics  and  data  compiled  therefrom  shall  be  kept  available  by  it,  20 
and  shall  be  furnished  on  request  to  the  department  of  labor  and  indus-  21 
tries  for  its  own  use.  22 

Within  sixty  days  after  the  termination  of  the  disability  of  the  injured  23 
employee,  the  insurer  shall  file  with  the  department  a  statement  showing  24 
the  total  payments  made  or  to  be  made  for  compensation  and  for  medical  25 
services  for  such  injured  employee.  26 


Section  20.  Copies  of  hospital  records  kept  in  accordance  with  sec- 
tion seventy  of  chapter  one  hundred  and  ele\en,  certified  by  the  persons 
in  custody  thereof  to  be  true  and  complete,  shall  be  admissible  in  evi- 
dence in  proceedings  before  the  department  or  any  member  thereof.  The 
department  or  any  member,  before  admitting  any  such  copy  in  evidence, 
may  require  the  party  offering  the  same  to  produce  the  original  record. 


Chap.  152.]  workmen's  compensation.  ,  1605 

1  Section  21.     Every  insured   person  shall,  as  soon  as  he  secures  a  Notice  to 

2  policy,  give  written  or  printed  notice  to  all  persons  under  contract  of  i<)n,°75riv, 

3  hire  with  him  that  he  has  provided  for  payment  to  injured  employees  by  Lf  kass.  220. 

4  the  insurer.  233  Mass.  .570. 

1       Section  22.     Every  insured  person  shall  give  written  or  printed  notice  Same  subject 


o 


to  e\ery  person  with  whom  he  is  about  to  enter  into  a  contract  of  hire  § 


1011,751.  IV. 


il. 


.'^  that  he  has  provided  for  payment  to  injured  employees  by  the  insurer.  2'i's^MaIs' 34h''' 

4  An  employer  ceasing  to  be  insured  shall,  on  or  before  the  day  on  which  |||  |^^^^  ^U 

5  his  policy  expires,  give  written  or  printed  notice  thereof  to  all  persons  233  Mass.  570. 
(')  under  contract  with  him.    In  case  of  the  renewal  of  the  policy  no  notice 

7  shall  be  required.     He  shall  file  a  copy  of  said  notice  with  the  depart- 

8  ment.     The  notices  required  by  this  and  the  preceding  section  may  be 

9  given  in  the  manner  therein  provided  or  in  such  other  manner  as  may 
10  be  approved  by  the  department. 


1  Section  23.     If  an  employee  of  an  insured  person  files  any  claim  Acceptance  of 

2  with  or  accepts  payment  from  the  insurer  on  account  of  personal  injury,  by^eTpioye'e"" 
3'  or  makes  any  agreement,  or  submits  to  a  hearing  before  a  member  of  the  ''j^Jj^eTfrom 

4  department  under  section  eight,  such  action  shall  constitute  a  release  to  liability,  etc. 

5  the  insured  of  all  claims  or  demands  at  law,  if  any,  arising  from  the  injury,  v,  §  '1. 

1  Section  24.     An  employee  of  an  insured  person  shall  be  held  to  have  Notice  by 

2  waived  his  right  of  action  at  common  law  to  recover  damages  for  per-  retain^tgiit''3 

3  sonal  injuries  if  he  shall  not  have  given  his  employer,  at  the  time  of  his  5'^'^™'""'°° 

4  contract  of  hire,  written  notice  that  he  claimed  such  right,  or,  if  the  con-  J^Ps^'''' 

5  tract  of  hire  was  made  before  the  employer  became  an  insured  person,  if  .',fl,j^;j'lj*^g'  l^^^ 

6  the  employee  shall  not  have  given  the  said  notice  within  thirty  days  of  21s  Mass^  sw. 

7  notice  of  such  insurance.    An  employee  who  has  given  notice  to  his  em-  222  Mass^  sw;. 

8  ploycr  that  he  claimed  his  right  of  action  at  common  law  may  waive  such  iU  Mass!  1^"' 

9  claim  by  a  written  notice,  which  shall  take  effect  five  days  after  it  is  de-  |,33  .£1' Ito. 

10  livered  to  the  employer  or  his  agent.    The  notices  required  by  this  section  ^^^  ^^'^^-  ^^■ 

1 1  shall  be  given  in  such  manner  as  the  department  may  approve. 

1  Section  25.     If  an  insured  person  who  has  complied  with  the  rules,  Payment  of 

2  regulations  and  demands  of  the  insurer  is  required  by  a  judgment  of  a  insurrf."'  ^^ 

3  court  to  pay  to  an  employee  any  damages  on  account  of  personal  injury  iv'§22.'' 

4  sustained  by  such  employee  during  the  period  covered  by  insurance,  the  -'*  '^'''^=-  ^'**'- 

5  in,surer  shall  pay  to  the  insured  the  full  amount  of  such  judgment  and  the 

6  cost  assessed  therewith  if  the  insured  shall  have  given  the  insurer  written 

7  notice  of  the  bringing  of  the  action  in  which  the  judgment  was  recovered 

8  and  an  opportunity  to  appear  and  defend  the  same. 

payments. 

1  Section  26.     If  an  employee  who  has  not  given  notice  of  liis  claim  Payments. 

2  of  common  law  rights  of  action,  under  section  twenty-four,  or  who  has  ii,'§'/.^'' 

3  given  such  notice  and  has  waived  the  same,  receives  a  personal  injury  |5|  ^"2  If/ 

4  arising  out  of  and  in  the  course  of  his  employment,  he  shall  be  paid  ^^y^^gg  3,, 

5  compensation  by  the  insurer,  as  hereinafter  provided,  if  his  employer  76,223,388.' 

6  is  an  insured  person  at  the  time  of  the  injury. 

218  Mass.  1.  223  Mass.  5(1.  139.  228  Mass.  57. 

219  Mass.  488.  224  Mass.  554,  558.  229  Mass.  165,  193.  407. 

220  Mass.  17,  526,  .581.  225  Mass.  174,  220.  230  Mass,  99,  326,  429. 
222  Mass.  1,  226  Mass.  591.  235  Mass.  309,  598. 

98,  163,  487.  227  Mass.  341,  4.52.  236  Mass.  241,  342.  473,  .542. 


1606 


WORKMEN  S   COMPENSATION. 


[Chap.  ]:)2. 


Misconduct  by 
employee  bars 
compensation. 
1911.  751, 
n.  S2. 


Misconduct 
by  employer. 
Double  com- 
pensation. 

1911,  751, 
II.  §3. 

1912,  571,  5  1. 
218  Mass.  8. 
227  Mass.  55. 

230  Mass.  272. 

231  Mass.  132. 
236  Mass.  407. 


Section  27.     If  the  employee  is  injured  by  reason  of  his  serious  and 
wilful  misconduct,  he  shall  not  receive  compensation. 


218  Mass.  158. 


223  Mass.  139. 


Section  28.  If  the  employee  is  injured  by  reason  of  the  serious  and 
wilful  misconduct  of  an  insured  person  or  of  any  person  regularly  intrusted 
with  and  exercising  the  powers  of  superintendence,  the  amounts  of  com- 
pensation hereinafter  provided  shall  be  doubled.  In  such  case  the  insured 
shall  repay  to  the  insurer  the  extra  compensation  paid  to  the  employee. 
If  a  claim  is  made  under  this  section  the  insured  may  appear  and  defend 
against  such  claim  onlv. 


Waiting  period. 
1911,  751, 
II,  §  4. 
1916,  90. 


Section  29.  No  compensation  shall  be  paid  for  any  injury  which  does 
not  incapacitate  the  employee  for  a  period  of  at  least  ten  days  from  earning 
full  wages,  but  if  incapacity  extends  beyond  such  period,  compensation 
shall  begin  on  the  ele\'enth  day  after  the  injury.  When  compensation 
shall  ha\e  begun  it  shall  not  be  discontinued  except  with  the  written 
assent  of  the  employee  or  the  approval  of  the  department  or  a  mem- 
ber thereof;  pro^■ided,  that  such  compensation  shall  be  paid  in  accord- 
ance with  section  thirty -five  if  the  employee  in  fact  earns  wages  after 
the  original  agreement  is  filed. 


Medical 
services,  etc. 
1911,751, 
U,  §  5. 

1914,  708,  §  1. 
1917,  198. 
1920,  324. 
217  Mass.  589. 
219  Mass.  420. 
223  Mass.  540. 
226  Mass.  292. 

228  Mass.  257. 

229  Mass.  302, 
335. 


Death. 
1911,  751, 
II,  §  6. 
1914,  70S,  §  2. 

216  Mass.  .5811. 

217  Mass.  3. 
192. 

218  Mass.  278. 

219  Mass.  498. 

220  Mass.  526. 

222  Mass.  401. 

223  Mass.  187. 
225  Mass.  349. 

229  Mass.  48, 
435. 

230  Mass.  152, 
326. 

231  Ma-ss.  261. 
234  Mass.  5. 


Section  30.  During  the  first  two  weeks  after  the  injury,  and,  if  the  1 
employee  is  not  immediately  incapacitated  thereby  from  earning  full  2 
wages,  then  from  the  time  of  such  incapacity,  and  in  unusual  cases,  in  the  -i 
discretion  of  the  department,  for  a  longer  period,  the  insurer  shall  furnish  4 
adequate  and  reasonable  me<lical  and  hospital  services,  and  medicines  5 
if  needed.  The  employee  may  select  a  physician  other  than  the  one  6 
pro\'ided  by  the  insurer;  and  in  case  he  shall  be  treated  by  a  physician  7 
of  his  own  selection,  or  where,  in  case  of  emergency  or  for  other  justifi-  8 
able  cause,  a  physician  other  than  the  one  provided  by  the  insurer  is  9 
called  in  to  treat  the  injured  employee,  the  reasonable  cost  of  his  ser\ices  10 
shall  be  paid  by  the  insurer,  subject  to  the  approval  of  the  department.  11 
Such  approval  shall  be  granted  only  if  the  department  finds  that  the  12 
employee  was  so  treated  by  such  physician  or  that  there  was  such  emer-  13 
gency  or  justifiable  cause,  and  in  all  cases  that  the  services  were  adequate  14 
and  reasonable  and  the  charges  reasonable.  In  any  case  where  the  de-  15 
partment  is  of  opinion  that  the  fitting  of  the  employee  with  an  artificial  16 
eye  or  limb,  or  other  mechanical  appHance,  will  promote  his  restoration  17 
to  industry,  it  may  order  that  he  be  provided  with  such  an  artificial  eye,  IS 
limb  or  appliance,  at  the  expense  of  the  insurer.  19 

Section  31.  If  death  results  from  the  injury,  the  insurer  shall  pay  1 
the  <lependents  of  the  employee  wholly  dependent  upon  his  earnings  for  2 
support  at  the  time  of  injury  a  weekly  payment  equal  to  two  thirds  of  3 
his  average  weekly  wages,  but  not  more  than  ten  dollars  nor  less  than  4 
four  dollars  a  week  for  a  period  of  five  hundred  weeks  from  the  date  of  5 
the  injury;  but  in  no  case  shall  the  amount  be  more  than  four  thousand  6 
dollars.  If  the  employee  leaves  dependents  only  partially  dependent  7 
upon  his  earnings  for  support  at  the  time  of  his  injury,  the  insurer  8 
shall  pay  such  dependents  a  weekly  compensation  equal  to  the  same  9 
proportion  of  the  weekly  payments  for  the  benefit  of  persons  wholly  10 
dependent  as  the  amount  contributed  by  the  employee  to  such  partial  11 
dependents  bears  to  the  annual  earnings  of  the  deceased  at  the  time  of  12 


Chap.  152.]  workmen's  compensation.  1607 

13  liis  injury.    \Yhen  weekly  payments  have  been  made  to  an  injured  em- 

14  ployee  before  his  death,  tlie  compensation  to  dependents  shall  begin  from 
1.5  the  date  of  the  last  payment,  but  shall  not  continue  more  than  five 
16  himdred  weeks  from  the  date  of  the  injury. 

1  Section  32.     The  following  persons  shall  be  conclusively  presumed  ^^i''i^°7'^Y'*^' 

2  to  be  wholly  dependent  for  support  upon  a  deceased  employee:  ii.  §  7. 

1914,  70S,  §  3.  1919.  204. 

3  (a)  A  wife  upon  a  husband  with  whom  she  li\es  at  the  time  of  his  215 Mass. 497. 

4  death,  or  from  whom,  at  the  time  of  his  death,  the  department  shall  find  217  Mass!  79^ 

5  the  wife  was  li\dng  apart  for  justifiable  cause  or  because  he  had  deserted  219  Mass.  140. 

6  her.     The  findings  of  the  department  upon  the  questions  of  such  justifiable  223  Mass'  378 

7  cause  and  desertion  shall  be  final.  224  Mass.  se,  592. 

227  Mass.  456.  229  Mass.  454,  521.  230  Mass.  152. 

8  (b)  A  husband  upon  a  wife  with  whom  he  lives  at  the  time  of  her  death. 

9  (c)  Children  under  the  age  of  eighteen  years  (or  o\er  said  age,  if  JJS K"^^  "'■ 

10  physically  or  mentally  incapacitated  from   earning)   upon  the  parent  79, 192. 

11  with  whom  they  are  living  at  the  time  of  the  death  of  such  parent,  there  225  Mass!  aia 

12  being  no  surviving  dependent  parent;  provided,  that  in  case  of  the  death  232  Mass!  212. 

13  of  an  employee  who  has  at  the  time  of  his  death  living  children  by  a  former  ^s*  m^=^-  s. 

14  wife  or  husband,  under  the  age  of  eighteen  years  (or  over  said  age,  if  ^■**'  -^'"^'^  ^°*- 

15  physically  or  mentally  incapacitated  from  earning),  said  children  shall 

16  be  conclusively  presumed  to  be  wholly  dependent  for  support  upon  such 

17  deceased  employee,  and  the  death  benefit  shall  be  diAided  between  the 

18  surviving  wife  or  husband  and  all  the  children  of  the  deceased  employee 

19  in  equal  shares,  the  sur\i\ing  wife  or  husband  taking  the  same  share  as 

20  a  child.    The  total  sum  due  the  sur\i\ing  wife  or  husband  and  her  or  his 

21  own  children  shall  be  paid  directly  to  the  wife  or  husband  for  her  or  his 

22  own  use  and  for  the  benefit  of  her  or  his  own  children,  and  the  sums  due 

23  to  the  children  by  the  former  wife  or  husband  of  the  deceased  employee 

24  shall  be  paid  to  their  guardians  or  legal  representatives  for  the  benefit  of 

25  such  children. 

26  (d)  Children  under  the  age  of  sixteen  years  (or  over  said  age  but  234  Mass.  152. 

27  physically  or  mentally  incapacitated  from  earning)  upon  a  parent  who 

28  was  at  the  time  of  his  death  legally  bound  to  support  although  li\'ing 

29  apart  from  such  child  or  children. 

30  In  all  other  cases  questions  of  dependency,  in  whole  or  in  part,  shall  ^H  mIH'  tf^' 

31  be  determined  in  accordance  with  the  fact  as  the  fact  mav  be  at  the  time  ^w  Jiass.  140. 

_,-„,..  ,    .  ,  ,  .„     ,  .  ',  222  Mass.  401, 

32  or  the  injury;   and  in  such  other  cases,  11  there  is  more  than  one  person  563. 

33  wholly  dependent  the  death  benefit  shall  be  divided  equally  among  them,  227  Mass!  455! 

34  and  persons  partly  dependent,  if  any,  shall  receive  no  part  thereof,  and  if  454, 52T.'' 

35  there  is  no  one  wholly  dependent  and  more  than  one  person  partly  de-  I31  ^JajJ  %i 

36  pendent,  the  death  benefit  shall  be  divided  among  them  according  to  the 

37  relative  extent  of  their  dependency. 

1  Section  33.     In  all  cases  the  insurer  shall  pay  the  reasonable  expense  Funeral 

2  of  burial,  not  exceeding  one  hundred  dollars.     If  the  employee  leaves  i9ii°7m, 

3  dependents,  such  sum  shall  be  a  part  of  the  compensation  payable,  and  jg^l  ^jgq. 

4  shall  to  that  extent  shorten  the  period  of  payment.         215  Mass.  497. 

1  Section  34.     Wliile  the  incapacity  for  work  resulting  from  the  injury  xotai  in- 

2  is  total,  the  insurer  shall  pay  the  injured  employee  a  weekly  compensation  i9ii"75i, 

3  equal  to  two  thirds  of  his  average  weekly  wages,  but  not  more  than  Igil^yos,  §  4. 


1608 


WORKMEN  S   COMPENSATION. 


[ClL\P.    152. 


1917,  249,  §  1. 
1918, 113. 
1919,  197. 
21.5  Ma8s.  96, 
217  Mass.  3. 


sixteen  dollars  nor  less  than  seven  dollars  a  week;  and  the  period  covered  4 
by  such  compensation  shall  not  be  greater  than  five  hundred  weeks  nor  5 
the  amount  more  than  four  thousand  dollars.  6 


218  Mass.  8,  141. 

219  Mass.  189,  430. 


223  Mass.  273,  288. 
227  Mass.  55. 


228  Mass.  334. 

229  Mass.  325. 


Partial  in- 
capacity. 
1911,751,11, 
§  10. 

1914,  708,  §  5. 
1919,  205. 

217  Mass.  3. 

218  Mass.  8. 

219  Mass.  4.30. 

220  Mass.  351. 
222  Mass.  4(51. 
229  Mass.  325. 
235  Mass.  408. 


Section  35.  While  the  incapacity  for  work  resulting  from  the  injury 
is  partial,  the  insurer  shall  pay  the  injured  employee  a  weekly  compen- 
sation equal  to  two  thirds  of  the  difference  between  his  average  weekly 
wages  before  the  injury  and  the  average  weekly  wages  which  he  is  able 
to  earn  thereafter,  but  not  more  than  sixteen  dollars  a  week;  and  the 
amount  of  such  compensation  shall  not  be  more  than  four  thousand 
dollars. 


ce*tS'n''spec'ific       SECTION  36.     lu  case  of  the  following  specified  injuries  the  amounts 
HiT  751,         hereinafter  named  shall  be  paid  in  addition  to  all  other  compensation : 

II.  §  11-  1912,  571,  §  2.  1913,  445;  69G.  1914,  708,  §  6.  218  Mass.  8. 


218  Mass.  8. 


226  Mass.  131. 
228  Mass.  211. 


217  Mass.  3, 
511. 

227  Mass.  269. 


217  Mass.  511. 
219  Mass.  136. 
221  Mass.  54. 
223  Mass.  346. 


(a)  For  the  loss  by  severance  of  both  hands  at  or  above  the  wTist,  or  3 
both  feet  at  or  above  the  ankle,  or  the  loss  of  one  hand  and  one  foot,  or  4 
the  reduction  to  one  tenth  of  normal  vision  in  both  eyes  with  glasses,  5 
two  thirds  of  the  average  weekly  wages  of  the  injured  person,  but  not  6 
more  than  ten  dollars  nor  less  than  four  dollars  a  w-eek  for  a  period  of  7 
one  hundred  weeks.  8 

(b)  For  the  loss  by  severance  of  either  hand  at  or  above  the  wrist,  of  9 
either  foot  at  or  above  the  ankle,  or  the  reduction  to  one  tenth  of  normal  10 
vision  in  either  eye  with  glasses,  two  thirds  of  the  average  weekly  wages  of  11 
the  injured  person  for  each  hand  or  foot  so  severed,  but  not  more  than  12 
ten  dollars  nor  less  than  four  dollars  a  week  for  a  period  of  fifty  weeks.  13 

(c)  For  the  loss  by  severance  at  or  above  the  second  joint  of  two  or  14 
more  fingers,  including  thumbs,  of  the  same  hand  or  of  two  or  more  toes  15 
of  the  same  foot,  two  thirds  of  the  average  weekly  wages  of  the  injured  16 
person,  but  not  more  than  ten  dollars  nor  less  than  four  dollars  a  week,  17 
for  a  period  of  twenty-five  weeks,  for  each  hand  or  foot  so  injured.  18 

(d)  For  the  loss  by  severance  of  at  least  one  phalange  of  a  finger,  thumb  19 
or  toe,  two  thirds  of  the  average  weekly  wages  of  the  injured  person,  but  20 
not  more  than  ten  dollars  nor  less  than  four  dollars  a  week,  for  a  period  21 
of  twelve  weeks,  for  each  hand  or  foot  so  injured.  22 

(e)  The  additional  amounts  provided  for  in  this  section  in  case  of  the  23 
loss  of  a  hand,  foot,  thumb,  finger,  toe  or  phalange  shall  also  be  paid  for  24 
the  number  of  weeks  above  specified  if  the  injury  is  such  that  the  hand,  25 
foot,  thumb,  finger,  toe  or  phalange  is  not  lost  but  so  injured  as  to  be  26 
permanently  incapable  of  use.  27 


Method  of 
payment  for 
certain  in- 


juries. 
1919,  27 


,§2. 


Section  37.     Whenever  an  employee  who  has  previously  suffered  1 

a  personal  injury  resulting  in  the  loss  by  severance,  or  the  permanent  2 

incapacity,  of  one  hand  at  or  above  the  wrist  or  one  foot  at  or  above  the  3 

ankle,  or  the  reduction  to  one  tenth  of  normal  vision  of  one  eye  with  glasses,  4 

incurs  further  disability  by  the  loss  or  permanent  incapacity  of  a  hand  5 

or  foot  or  the  reduction  to  one  tenth  of  normal  vision  in  an  eye,  by  reason  6 

of  a  personal  injury  for  which  compensation  is  required  by  this  chapter,  7 

he,  or  his  dependent,  if  death  results  from  the  injury,  shall  be  paid  the  8 

compensation  provided   for   by  sections  thirty-one,  thirty-two,  thirty-  9 

four  or  thirty-five,  in  tlie  following  manner:  10 


Chap.  152.]  workmen's  compensation.  1609 

11  One  half  of  such  compensation  .shall  be  paid  by  the  state  treasurer 

12  from  the  fund  established  by  section  sixty-fi\-e,  anfl  the  other  half  by  the 
1.3  insurer,  but  the  adrlitional  compensation  required  by  section  thirty-six 
14  shall  be  paid  by  the  insurer. 

1  Section  3S.     No  savings  or  insurance  of  the  injured  employee  inde-  savings,  etc., 

2  pendent  of  this  chapter  shall  be  considered  in  determining  the  corapensa-  deducted. 

.3  tion  payable  thereunder,  nor  shall  benefits  derived  from  any  other  source  l^i2!  '^'' ''' 
4  than  the  insurer  be  considered  in  such  determination.  229  Mass.  435. 

1  Section  39.     The  compensation  payable  in  case  of  the  death  of  the  Payments  in 

2  injured  employee  shall  be  paid  to  his  legal  representative;   or,  if  he  has  iaTi,°7M,''n, 

3  no  legal  representati\e,  to  his  dependents;  or,  if  he  leaves  no  dependents,  ^gj|  ^^g  ^  ~ 

4  to  the  persons  to  whom  payment  of  the  expenses  for  the  last  sickness  ^j^  Mass.  sse. 

5  and  burial  is  due.    If  pa\Tnent  is  made  to  the  legal  representative  of  the  231  Mass.'  399! 

6  deceased  employee,  it  shall  be  paid  by  him  to  the  dependents  or  other 

7  persons  entitled  thereto  under  this  chapter.    When  the  appointment  of 

8  a  legal  representative  of  a  deceased  employee,  not  otherwise  necessary, 

9  is  required  to  comply  with  this  chapter,  the  insurer  shall  furnish  or  pay 

10  for  legal  services  rendered  in  connection  with  the  appointment  of  such 

1 1  representative,  or  in  connection  with  his  duties,  and  shall  pay  the  neces- 

12  sary  disbursements  for  such  appointment,  the  necessary  expenses  of  such 

13  representative  and  reasonable  compensation  to  him  for  time  necessarily 

14  spent  in  complying  therewith.     Said  payments  shall  be  in  addition  to 

15  sums  paid  for  compensation. 

1  Section  40.     If  an  injured  employee  is  mentally  incompetent  or  is  Guardian, 

2  a  minor  when  any  right  or  privilege  accrues  to  him,  his  guardian  or  next  cfaim°rights 

3  friend  may  in  his  behalf  claim  and  exercise  such  right  or  privilege.  ^^H' '°''  '^' 

233  Mass.  570. 

1  Section  41.     No  proceedings  for  compensation  for  an  injury  shall  J}°'^"''"'' 

2  be  maintained  unless  a  notice  thereof  shall  have  been  given  to  the  in-  v)n,  751. 11, 

3  surer  or  insured  as  soon  as  practicable  after  the  happening  thereof,  and  21- Mass.  223. 

4  unless  the  claim  for  compensation  with  respect  to  such  injury  has  been  223  mLs'.  346^ 

5  made  within  six  months  after  its  occurrence,  or,  in  case  of  the  death  of  225  Mass.  203. 

6  the  employee,  or  in  the  event  of  his  physical  or  mental  incapacity,  within  22?  Mass  Isg^ 

7  six  months  after  death  or  the  removal  of  such  incapacity.  ^"O- 

228  Mass.  31,  213.  231  Mass.  225,  489. 

1  Section  42.     The  said  notice  shall  be  in  writing,  and  shall  state  in  Form  of 

2  ordinary  language  the  time,  place  and  cause  of  the  injury,  and  shall  be  i9ii77si,  ii, 

3  signed  by  the  person  injured,  or,  in  case  of  his  death,  by  his  legal  repre-  i9\|  172. 

4  sentative,  or  by  a  person  to  whom  payments  may  be  due  under  this  ^ly'lf^g,  223 

5  chapter,  or  by  a  person  in  behalf  of  anv  one  of  them.     Any  form  of  written  222  jiass.  434. 

„  ^  .         .'        *^.  ,    ,  •  .  ,       ■'         .  ,  226  Mass.  CO. 

0  communication  signed  by  a  person  who  may  give  the  notice  as  abo\'e  231  Mass.  225. 

7  provided,  containing  the  information  that  the  person  has  been  so  in- 

8  jured,  giving  the  time,  place  and  cause  of  the  injury,  shall  be  considered 

9  a  sufficient  notice. 

1  Section  43.     The  notice  shall  be  served  upon  the  insurer  or  an  officer  Service  of 

2  or  agent  thereof,  or  upon  the  insuretl,  or  upon  one  insured  person  if  there  1911T751. 11, 

3  is  more  than  one,  or  upon  any  officer  or  agent  of  a  corporation  if  the  liV^Mass.  223. 

4  insured  is  a  corporation,  by  delivering  it  to  the  person  on  whom  it  is  to  222  Mass.  434. 


IGIO 


WORKMEN  S   COMPENSATION. 


[Chap.  152. 


be  served,  or  leaving  it  at  his  residence  or  place  of  business,  or  by  sending  5 
it  by  registered  mail  addressed  to  the  person  on  whom  it  is  to  be  served,  6 
at  his  last  known  residence  or  place  of  business.  7 


Notice  not 
invalid  for 
inaccuracy,  etc. 
1911.  751.  II, 
§  18. 

1920.  22.'i.  §  1. 
217  Mass.  223. 

222  Mass.  434. 

223  Mass.  342. 

226  Mass.  GO. 

227  Mass.  470. 

228  Mass.  31. 
232  Mass.  181. 


Section  44.  Such  notice  shall  not  be  held  invalid  or  insufficient 
by  reason  of  any  inaccuracy  in  stating  the  time,  place  or  cause  of  the 
injury  unless  it  is  shown  that  it  was  the  intention  to  mislead  and  that 
the  insurer  was  in  fact  misled  thereby.  Want  of  notice  shall  not  bar 
proceedings,  if  it  be  shown  tliat  tiie  insurer,  insured  or  agent  had  knowl- 
edge of  the  injury,  or  if  it  is  found  that  the  insurer  was  not  prejudiced 
bv  such  want  of  notice. 


Examination 
by  physician. 

1911,  761,  II, 
§  19. 

1912,  571,  §  4. 
215  Mass.  480. 


Section  4,5.  After  an  employee  has  received  an  iujiu'v,  and  from 
time  to  time  thereafter  during  the  continuance  of  his  disability  he  shall, 
if  requested  by  the  insiu-er  or  insured,  submit  to  an  examination  by  a 
registered  physician,  furnished  and  paid  for  by  the  insurer  or  the  insured. 
The  employee  may  have  a  physician  pro\ided  and  paid  for  by  himself 
present  at  the  examination.  If  he  refuses  to  submit  to  the  examination 
or  in  any  way  obstructs  it,  his  right  to  compensation  shall  be  suspended, 
and  his  compensation  during  tlie  period  of  suspension  may  be  forfeited. 


Rights  to 
compensation 
cannot  be 
waived. 


Section  46.     No  agreement  by  any  employee  to  wai\e  his  rights  to     1 
compensation  shall  be  valid.  1911.751,  n,§  20.  215  Mass.  4so.  2 


Payment  not 
assignable. 
1911,  751,  II, 
§  21. 


Lump  sums  in 
lieu  of  weekly 
payments. 
1911,  751,  II, 
522. 

1914,  708,  §  S. 
226  Mass.  444. 
230  Mass.  SCO. 


Section  47.     No  payment  shall  be  assignable  or  subject  to  attach-  1 

ment,  or  be  liable  in  any  way  for  debts.  2 

Section  48.     Whenever  any  weekly  payment  has  been  continued  for  1 

not  less  than  six  months,  tlie  liability  therefor  may,  in  unusual  cases  2 

where  the  parties  agree  and  the  department  deems  it  to  be  for  the  best  in-  3 

terests  of  the  employee  or  his  dependents,  be  redeemed  by  the  payment,  4 

in  whole  or  in  part,  by  the  insurer  of  a  lump  sum  to  be  fixed  by  the  de-  5 

partment,  not  exceeding  the  amount  provided  by  this  chapter.     The  6 

department  may  at  any  time  in  case  of  a  minor  who  has  received  per-  7 

manently  disabling  injuries,  either  partial  or  total,  pro\ide  that  he  be  8 

compensated  in  whole  or  in  part  by  the  payment  of  a  lump  sum,  of  an  9 

amount  to  be  fixed  by  the  department,  not  exceeding  the  amount  pro-  10 

vide<l  by  this  chapter.  1 1 


Claim. 

1912,571,  §  5. 
1918,  119. 
1920, 223, ^  2. 
223  Mass.  342, 
346,  378. 

225  Mass.  203 

226  Mass.  131, 
380. 

227  Mass.  450. 

228  Mass.  213. 

230  Mass.  9. 

231  Mass.  4G9. 


Section  49.  The  claim  for  compensation  shall  be  in  writing,  and  1 
shall  state  the  time,  place,  cause  and  nature  of  the  injury.  It  shall  be  2 
signed  by  the  person  injured,  or,  in  the  event  of  his  death,  by  his  legal  3 
representative,  or  by  a  person  to  whom  payments  may  be  due,  or  by  a  4 
person  in  behalf  of  any  of  them,  and  shall  be  filed  with  the  department.  5 
A  claim  for  compensation  shall  not  be  held  invalid  or  insufficient  by 
reason  of  any  inaccuracy  in  stating  the  time,  place,  cause  or  nature  of  tiie 
injury  unless  it  is  shown  that  it  was  the  intention  to  mislead  and  that 
the  Insurer  was  in  fact  misled  thereby.  Failure  to  make  a  claim  -within 
the  time  fixed  by  section  forty-one  shall  not  bar  proceedings  under  this  10 
chapter  if  it  is  found  that  it  was  occasioned  by  mistake  or  other  reason-  11 
able  cause,  or  if  it  is  found  that  the  insurer  was  not  prejudiced  by  the  12 
delay.  ^  -^ 


Chap.  152.]  workmen's  compensation.  1(511 

1  Section  50.     Whenever  any  question  in\ol\-ing  the  compensation  of  '"'"^f^j'" 

2  an  injured  employee  or  his  dependents  is  appealed  to  the  supreme  judi-  J^f^^  ^gg     j^ 

0  cial  court,  and  the  decision  is  in  favor  of  the  employee  or  his  depend- 

4  ents,  interest  to  the  date  of  payment  sliall  be  paid  by  the  insurer  on  all 

5  sums  due  as  compensation  to  such  employee  or  dependents. 

1  Section  51.    Whenever  an  employee  is  injured  under  circumstances  Compensation 

2  entitling  him  to  compensation,  if  it  be  established  that  the  injured  em-  °mp°oyee. 

3  ploj'ee  was  of  such  age  and  experience  when  injured  that,  under  natural  22s''Mats;  334. 

4  conditions,  his  wages  would  be  expected  to  increase,  that  fact  may  be  con-  §5^  ^ass.  sm. 

5  sidered  in  determining  his  weekly  wages. 


INStJKANCE   companies. 

1  Section  52.     Any  liability  insurance  company  authorized  to  do  busi-  J°n"pame's 

2  ness  in  the  commonwealth  may  insure  the  liability  to  pay  the  compensa-  y  ^s's'**' 

3  tion  provided  for  by  this  chapter;  and  when  any  such  company  insures  1912,571,  §  i7; 

4  the  payment  of  such  compensation  it  shall  file  with  the  commissioner  2i8'Ma8s.  i. 

5  of  insurance  its  classifications  of  risks  and  premiums  relating  thereto  I op"^ aI'g^m. 

6  and  subsequent  proposed  classifications  or  premiums,  which  shall  not 

7  take  effect  until  approved  by  the  commissioner  of  insurance  as  adequate 

8  for  the  risks  to  which  they  respectively  apply.    The  commissioner  may 

9  withdraw  his  approval. 

1  Section  53.     Any  mutual  liability  insurance  company  authorized  to  Mutual 

2  do  business  in  this  commonwealth  may  with  the  approval  of  the  commis-  wix'Tsriv, 

3  sioner  of  insiu-ance  distribute  its  risks  into  groups  in   accordance  with  i9i6%oo.Vi. 

4  the  nature  of  the  business  and  the  degree  of  the  liability  of  injury  and 

5  with  like  approval  fix  by  and  for  such  groups  in  accordance  with  the 

6  experience  of  each  group  all  premiums,  assessments  and  dividends;   but 

7  all  the  funds  of  the  company  both  actual  and  contingent  shall  be  avail- 
S  able  for  the  payment  of  any  claim  against  the  company. 

1  Section  54.     Policies  of  workmen's  compensation  insurance  issued  or  Form  of  in- 

2  delivered  in  the  commonwealth  shall  cover  separately  and  for  a  separate  i9i5?'2S7,°§?.' 

3  consideration  all  the  liabilities  which  are  imposed  upon  an  insurer  by 

4  this  chapter,  whatever  other  contingencies  may  be  insured  by  riders 

5  attached  thereto  or  endorsements  thereon.    On  the  face  of  such  policies 

6  shall  be  printed  conspicuously  the  words   "  Insinance  under  this  policy 

7  is  in  Class  of  the  company's  Workmen's  Compen- 

8  sation  Classification  Manual",   and  in  the  blank  thus  provided  the 

9  number  or  other  designation  in  said  manual  under  which  the  said  policy 
10  is  written  shall  be  placed  before  the  policy  is  issued. 

1  Section  55.     No  such  policy  of  insurance  shall  be  issued  or  delivered  fammiZlimeT 

2  until  a  copy  thereof  has  been  filed  with  the  commissioner  of  insurance  igoy^sT'u"''^ ^9 

3  at  least  thirty  days  prior  to  such  issue  or  delivery,  unless  before  the  ex-  isis',  287',  §  2. 

4  piration  of  the  thirty  days  the  said  commissioner  shall  have  approved 

5  the  form  of  the  policy  in  writing,  nor  if  the  commissioner  notifies  the 

6  company  in  wxiting  that  in  his  opinion  the  form  of  said  policy  does  not 

7  comply  with  the  laws  of  the  commonwealth,  specifying  the  reasons  for 

8  his  opinion;  provided,  that  upon  petition  of  the  company  the  opinion  of 

9  the  commissioner  shall  be  subject  to  review  by  the  supreme  judicial  court. 


1612 


WORKMEN  S   COMPENSATION. 


[Chap.  152. 


Any  policy  of  insurance  issued  in  ^^oIation  of  this  section  or  of  sec-  10 
tion  fifty-six  or  sixty  shall  be  valid  and  binding  upon  the  company  11 
issuing  it,  and  the  rights,  duties  and  obligations  of  the  parties  thereto  12 
shall  be  determined  by  this  chapter  and  chapter  one  hundred  and  13 
seventy-five.  14 


Joint  and 
several 
policies. 
1918,  216. 


Section  56.  Two  or  more  insurance  companies  authorized  to  issue 
such  insurance  policies  in  the  commonwealth  may  unite  in  issuing  joint 
and  several  workmen's  compensation  policies  which  may  be  headed  by 
the  names  of  all  such  companies.  Such  policies  shall  be  subject  to  ap- 
proval by  the  commissioner  of  insurance. 


Deposit  by 
company  of 
value  of  out- 
standing 
claims. 
1919,  226,  §  1. 


Section  57.  The  commissioner  of  insurance  in  his  discretion  may  1 
at  any  time  require  an  insurance  company  to  deposit  in  cash  or  approved  2 
securities  w-ith  the  state  treasurer  the  present  value  as  computed  by  3 
him  of  all  or  any  part  of  its  outstanding  claims  incurred  under  the  pro-  4 
visions  of  this  chapter.  The  state  treasurer  shall  make  from  such  deposit  5 
the  payments  to  those  entitled  thereto  under  this  chapter  and  as  pro-  6 
vided  therein,  upon  the  written  request  and  under  the  direction  of  the  7 
department,  or  may,  if  the  company  so  elects,  transfer  from  time  to  time  8 
to  a  trustee  appointed  by  the  company  and  approved  by  the  department  9 
any  part  of  the  funds  reasonably  necessary  for  making  the  said  payments  10 
promptly,  and  the  trustee  shall  make  the  same  in  accordance  with  the  11 
instructions  of  the  department.  The  state  treasurer  shall  keep  a  sepa-  12 
rate  account  with  the  company  of  the  amount  so  received,  the  amount  13 
of  interest  earned  and  the  payments  made.  In  case  the  amounts  so  de-  14 
posited  prove  or  seem  likely  to  prove  to  be  insufficient  from  transfer  of  15 
funds  or  otherwise,  the  commissioner  may  require  the  company  to  deposit  16 
such  additional  sums  as  he  may  deem  necessary.  If  the  amounts  deposited  17 
prove  to  be  larger  than  required,  portions  thereof  may  from  time  to  18 
time  be  refunded  to  the  company  by  the  state  treasurer,  subject  to  the  19 
approval  of  the  department  and  the  commissioner.  If  any  balance  re-  20 
mains  after  payment  of  all  sums  due  to  injured  workmen  or  their  depend-  21 
ents,  the  state  treasurer  shall  return  the  balance  to  the  company  upon  22 
notice  from  the  department  that  there  is  no  likelihood  of  further  pay-  23 
ments  becoming  due  on  account  of  the  said  claims.  24 


Commissioner 
to  compute 
value. 
1919,  226.  §  2. 


Section  58.     The  commissioner  of  insurance  shall  compute  the  pres-  1 

ent  value  of  outstanding  claims  on  the  basis  of  information  furnished  by  2 

the  department,  and  shall  assume  a  rate  of  interest  not  higher  than  four  3 

per  cent.  4 


Expenses  of 
custody  of 
deposit. 
1919.  226,  §  3. 


Section  59.     When  a  deposit  is  made  with  the  state  treasurer  under  1 

section  fifty-seven,  the  company  shall  pay  to  him  a  reasonable  amount  2 

for  the  expenses  of  his  office,  for  the  custody  and  disbursements  of  the  3 

deposit.  4 


Penalty  for 
failure  to 
make  deposit. 
1919,  226,  §  4. 


Section  60.  An  insurance  company  failing  to  make  a  deposit  when  1 
required  under  section  fifty-seven  shall  not  write  policies  of  workmen's  2 
compensation  insurance  in  the  commonwealth  until  such  deposit  is  made.     3 


Section  61.     Every  foreign  insurance  company  transacting  the  busi-     1 


Bond  of 

foreign 

igis'Tss  §  2    ^^^^  *-'^  workmen's  compensation  insurance  in  the  commonwealth  shall    2 
1916,29.  furnish  a  bond  running  to  the  commonwealth,  with  some  suretv  com-     3 


CiL\.p.  152.]  workmen's  compensation.  1613 

4  pany  authorized  to  transact  business  in  the  commomvealth  as  surety, 

5  for  such  term  and  such  amount  and  in  such  form  as  may  be  approved 

6  by  the  commissioner  of  insurance,  the  bond  being  conditioned  upon  the 

7  making  of  the  deposits  required  by  the  following  section.    The  annual 

8  license  of  such  a  company  shall  not  be  issued  or  renewed  until  it  has  filed 

9  with  the  commissioner  a  bond  as  aforesaid  covering  a  future  period  at 

10  least  as  long  as  that  covered  by  the  license.    In  place  of  a  bond  as  afore- 

1 1  said  the  company  may  furnish  other  security,  upon  a  like  condition,  sat- 

12  isfactory  to  the  commissioner. 

1  Section  62.     Every  such  foreign  insurance  company  shall,  within  five  Foreign 

2  days  after  its  withdrawal  from  the  transaction  of  business  in  the  com-  ceasmTto'do 

3  monwealtli  or  after  the  revocation  of  its  license  issued  by  the  commis-  i9i5"'i'83, 1 1. 

4  sioner  of  insurance  or  of  his  refusal  to  renew  it,  deposit  with  a  trustee 

5  to  be  named  by  the  department  an  amount  eciual  to  twenty-five  per  cent 

6  of  its  obligations  incurred  or  to  be  incurred  under  workmen's  compen- 

7  sation  policies  issued  to  employers  in  the  commonwealth;   and  within 

8  thirty  days  after  such  withdrawal,  revocation  of  or  refusal  to  renew  a 

9  license,  such  company  shall  deposit  with  said  trustee  an  amoimt  equal  to 

10  the  remainder  of  such  obligations  incurred  or  to  be  incurred,  the  amount 

11  of   which  obligations   shall   be  determined   by   the  department.    The  ^ 

12  amounts  so  deposited  shall  be  available  for  tlie  payment  of  the  said  obli- 

13  gations  of  the  company  to  the  same  extent  as  if  the  company  had  con- 

14  tinned  to  transact  business  in  the  commonwealth,  and  the  trustee  so 

15  receiving  said  deposits  shall  pay  sucli  obligations  at  the  times  and  in  a 

16  manner  satisfactory  to  the  department. 

1  Section  63.     Insurance  companies  insuring  employees  under  this  chap-  information 

2  ter  shall,  at  the  request  of  the  department,  furnish  it  in  writing  any  compa'niea'on 

3  information   required   in  connection  with  the  administration   by   said  depanLeLt''^ 

4  department  of  this  chapter,  including  any  statistics  and  the  names  of  i^'^'  ™*'  ^  ^^• 

5  all  employers  insured  by  them. 

1  Section  64.     The  insurer  shall  make  and  enforce  reasonable  rules  and  i^si'^er''^ 

2  regulations  for  the  prevention  of  injuries  on  the  premises  of  insured  per-  i^U'  ''^^^  ^^^ 

3  sons,  and  for  this  purpose  inspectors  of  the  insurer  shall  have  free  access  1919.350,  §  69. 

4  to  all  such  premises  during  regular  working  hours.     Insured  persons  or 

5  employees  thereof  aggrieved  by  such  rules  or  regulations  may  petition 

6  the  department  of  labor  and  industries  for  a  rexnew,  and  it  may  affirm, 

7  amend  or  annul  the  rule  or  regulation. 

1  Section  65.     For  every  case  of  personal  injury  resulting  in  death  Special  fund 

2  covered  by  this  chapter,  when  there  are  no  dependents,  the  insurance  p°aymenjs! 

3  company  shall  pay  into  the  treasury  of  the  commonwealth  one  hundred  ^®'°'  ^'"'  ^ '' 

4  dollars.    Such  payments  shall  constitute  a  special  fund  in  the  custody  of 

5  the  state  treasurer  who  shall  make  payments  therefrom  upon  the  written 

6  order  of  the  department  for  the  purposes  set  forth  in  section  thirty-seven. 

miscellaneous  provisions. 

1  Section  66.     In  an  action  to  recover  damages  for  personal  injury  Modification 

2  sustained  by  an  employee  in  the  course  of  his  employment,  or  for  death  loii,  751".' 

3  resulting  from  personal  injury  so  sustained,  it  shall  not  be  a  defence  —  209  Maes.  mr. 

4  1.  That  the  employee  was  negligent;  2i5Ma.s.4so. 


1614 


WORKMEN  S  COMPENSATION. 


[Chap.  152. 


222  Mass.  65. 

223  Mass.  3S6. 
227  Mass.  237. 


2.  That  the  injury  was  caused  by  the  negligence  of  a  fellow  employee;    6 

3.  That  the  employee  had  assumed  the  risk  of  the  injury.  6 


228  Mass.  147. 


230  Mass.  309. 


-Application 
of  the  pre- 
ceding section. 
1911,751,  I. 
§§  2,  3. 

209  Mass.  607. 
217  Mass.  o. 


Application  of 

certain  otiier 

laws. 

1911,751, 

I.  §4. 

1913,  807,  §  4. 

225  Mass.  220. 


Section  67.     The  preceding  section  shall  not  apply  to  actions  to  re-  1 

cover  damages  for  personal  injuries  sustained  by  domestic  servants  and  2 

farm  laborers,  nor  to  actions  for  such  injuries  received  by  employees  of  3 

an  insured  person.  225  Mass.  220.  230  Mass.  102.  3  Op.  a.  g.  569.  4 

Section  68.     Chapter  one  hundred  and  fifty-three  and  sections  four  1 

and  seven  to  ten,  inclusive,  of  chapter  two  hundred  and  twenty-nine  shall  2 

not  apply  to  employees  of  an  insured  person,  nor  to  laborers,  workmen  or  3 

mechanics  employed  by  any  comity,  city,  town  or  district  subject  to  sec-  4 

tions  sixty-nine  to  seventy-five,  inclusive,  while  this  chapter  is  in  effect.  5 


Compensation 
by  the  com- 
monwealth, 
etc. 

1913,807,  §  1. 
223  Mass.  270. 

226  Mass.  517. 

227  Mass.  44. 
232  Mass.  458. 
Op.  A.  G. 
(1917)  68. 


Section  69.     The  commonwealth  and  any  county,  city,  town  or  dis-  1 

trict  having  the  power  of  taxation  which  has  accepted  chapter  eight  2 

hundred  and  seven  of  the  acts  of  nineteen  hundred  and  thirteen  shall  3 

pay  to  laborers,  workmen  and  mechanics  employed  by  it  who  receive  4 

injuries  arising  out  of  and  in  the  course  of  their  employment,  or,  in  case  5 

of  death  resvdting  from  such  injury,  to  the  persons  entitled  thereto,  the  6 

compensation  required  by  this  chapter.     Sections  sixty-nine  to  seventy-  7 

five,  inclusive,  shall  apply  to  the  commonwealth  and  to  any  county,  8 

city,  town  or  district  having  the  power  of  taxation  which  has  accepted  9 

said  chapter  eight  hundred  and  seven  of  the  acts  of  nineteen  hundred  10 

and  thirteen.  11 


Procedure. 
1913,  S07,  § 


Section  70.     Procedure  under  sections  sixty-nine  to  seventy-five,  in-  1 

elusive,  and  the  jiu-isdiction  of  the  department  shall  be  the  same  as  under  2 

sections  one  to  sixty-eight,  inclu.sive,  and  the  commonwealth  or  such  3 

county,  city,  town  or  district  shall  ha\'e  the  same  rights  in  proceedings  4 

under  said  sections  as  the  insurer.     The  state  treasurer  or  the  treasurer  5 

or  officer  having  similar  duties  of  such  county,  city,  town  or  district  shall  6 

pay  compensation  awarded  for  injmy  to  persons  in  its  employment  upon  7 

proper  vouchers  without  further  authority.  8 


other 
remedies 
excluded. 
1913,  807.  §  3, 
223  Mass.  28S. 

226  Mass.  517. 

227  Mass.  44. 


Section  71.     Except  as  provided  in  the  following  section,  such  county,  1 

city,  town  or  district  shall  not  be  liable  in  any  action  for  a  personal  injury  2 

sustained  by  a  laborer,  workman  or  mechanic  in  the  course  of  his  employ-  3 

ment  by  such  county,  city,  town  or  district,  or  for  death  resulting  from  4 

such  injury.  5 


Waiver  of 
rights  by 
employee. 
1913,  S07.  §  4. 


Section  72.     A  laborer,  workman  or  mechanic  entering  the  service  of  1 

such  county,  city,  town  or  district  who  would,  if  injured,  have  a  right  2 

of  action  against  the  county,  city,  town  or  district  by  law,  may  claim  3 

or  waive  his  right  of  action  as  provided  in  section  twenty-four,  and  shall  4 

be  deemed  to  have  waived  such  right  of  action  unless  he  claims  it.  5 


Election 
between  com- 
pensation and 
pension. 
1913,  807,  §  5. 


Section  73.  Any  person  entitled  to  receive  compensation  as  pro- 
\ided  by  section  sixty-nine  from  the  commonwealth  or  from  such  county, 
city,  town  or  district,  who  is  also  entitled  to  a  pension  by  reason  of  the 
same  injury,  shall  elect  whether  he  will  receive  such  compensation  or 
such  pension,  and  shall  not  receive  both.  If  a  person  entitled  to  such 
compensation  from  the  commonwealth  or  from  such  county,  city,  town 


Chap.  153.]       employers'  liability  for  injuries  not  fatal. 


1615 


7  or  district  receives  by  special  act  a  pension  for  the  same  injury,  he  shall 
S  forfeit  all  claim  for  compensation ;  and  any  compensation  received  by  him 
9  or  paid  by  the  commonwealth  or  by  such  county,  city,  town  or  district 

10  which  employs  him  for  medical  or  hospital  services  rendered  to  him  may 

11  be  recovered  back  in  an  action  at  law.     No  further  payment  shall  be 

12  awarded  by  vote  or  otherwise  to  any  person  who  has  claimed  and  received 

13  compensation  under  sections  sixty-nine  to  seventy-five,  inclusive. 

1  Section  74.     Sections  sixty-nine  to  seventy-five,  inclusive,  shall  apply  Application 

2  to  all  laborers,  workmen  and  mechanics  in  the  service  of  the  common-  09^toy&^^ 

3  wealth  or  of  such  county,  city,  town  or  district  under  any  employment  228^MasL! 

4  or  contract  of  hire,  expressed  or  implied,  oral  or  WTitten,  including  those 

5  employed  in  work  done  in  performance  of  governmental  duties  as  well  as 

6  those  employed  in  municipal  enterprises  conducted  for  gain  or  profit. 

7  For  the  purposes  of  said  sections  all  laborers,  workmen  and  mechanics  paid 

8  by  the  commonwealth,  but  serving  under  boards  or  commissions  exer- 

9  cising  powers  within  defined  districts,  shall  be  deemed  to  be  in  the  service 
10  of  the  commonwealth. 


§ft. 


1  Section  75.     Every  board,  commission  and  department  of  the  com-  Agents  for 

2  monwealth  employing  laborers,  workmen  and  mechanics,  and  every  such  sect'ions^ 

3  county,  city,  town  and  district  shall,  through  its  executive  officer  or  iIis^Im. 

4  board,  designate  a  person  to  act  as  its  agent  in  furnishing  the  benefits  due  ^^  ^'  ^■ 

5  under  sections  sixty-nine  to  seventy-five,  inclusive.     Such  agent  shall  be 

6  responsible  for  the  proper  carrying  out  of  said  sections  under  the  direction 

7  and  supervision  of  the  department  until  his  agency  is  revoked  and  a  new 

8  agent  designated.    The  name  and  address  of  every  such  agent  shall  be 

9  filed  with  the  department  immediately  upon  his  designation.     This  sec- 

10  tion  shall  not  apply  to  counties,  cities,  towns  and  districts  which  have 

1 1  provided  by  insurance  for  the  payment  of  compensation  requii'ed  by  this 

12  chapter. 

REFERENCE. 

§  64.     Rules  made  under  this  section  to  be  subject  to  those  ot  department  of 
labor  and  industries,  Chap.  149,  §  12. 


CHAPTER     153. 

LIABILITY    OF    EMPLOYERS    TO    EMPLOYEES    FOR    INJURIES    NOT 
RESULTING  IN   DEATH. 


Sect. 

1.  Liability. 

2.  Neglect  to  notify  employer  of  negligence 

or  defect  bars  recovery. 

3.  Known  defect  not  remedied.    Employee 

does  not  assume  risk. 

4.  Assumption    of   risk    by   railroad    em- 

ployees. 


Sect. 

5.  Limit  of  damages  recoverable. 

6.  Notice  of  injury. 

7.  Independent  contractor. 
S.  Insurance  fund. 

9.  Examination  of  premises. 


1  Section  1.     If  personal  injury  is  caused  to  an  employee,  who,  at  the  Liability. 

2  time  of  the  injury,  is  in  the  exercise  of  due  care  by  reason  of —  §§  i,'?.' 

3  First,  A  defect  in  the  condition  of  the  ways,  works  or  machinery  is93;3.w!     ' 

4  connected  with  or  used  in  the  business  of  the  employer,  which  arose  {fgy^^g?; 

5  from,  or  had  not  been  discovered  or  remedied  in  consequence  of,  the  f;  ^j  ^^g- 


1616 


employers'   LLA.BILITY  FOR   INJURIES  NOT   FATAL.        [ChAP.    153. 


1908.  420. 

1909,  514, 
§§  127,  142. 

144  Mass.  198. 

145  Mass.  468. 


144  Mass.  198. 
146  Mass.  586. 
148  Mass.  533. 

152  Mass.  160. 

153  Mass.  460. 

155  Mass.  21, 
584. 

156  Mass.  131, 
293,  342,  368, 
527. 


153  Mass.  112, 

356. 

156  Mass.  13, 

262. 

159  Mass.  348, 

532. 


151  Mass.  245. 


negligence  of  the  employer  or  of  a  person  in  his  service  who  had  been  6 
intrusted  by  him  with  the  duty  of  seeing  that  the  ways,  works  or  ma-  7 
chinery  were  in  proper  condition;    or  8 


147  Mass,  573. 

173  Mass.  42,400. 

198  Mass.  337,  398, 

532 

153  .Mass.  73.  281,  468. 

174  Mass.  320,  398. 

200  Mass.  188,  522, 

546 

154  Mass.  29,  248,  407. 

175  Mass.  183,  363,  466,  496. 

201  Mass.  296,  352, 

4fi4 

155 -Mass.  21,368. 

176  Mass.  135. 

202  Mass.  17,  82,  193. 

156  Mass.  131,  163,  298. 

177  Mass.  69,  144,  170. 

228,  340,  491. 

158  .Mass.  135,  228,  238,  318. 

178  Mass.  9,  485. 

203  .Mass.  265,  273, 

159  .Mass.  1. 

179  Mass.  190. 

294,  532. 

160  Mass.  131,  152,201, 

180  Mass.  113,  363,403. 

204  Mass.  42. 

230,  248,   260,  457,  554.  557. 

181  Mass.  326. 

205  Mass.  59,  366. 

161  Mass.  153.  368. 

182  .Mass.  368,  500. 

206  Mass.  463. 

162  Mass.  198,312,334. 

183  Mass.  13. 

207  Mass.  99,  117. 

163  Mass.  221,  364. 

185  Mass.  82,  442. 

208  Mass.  106,  282, 

304 

164  Mass.  168,  206,  453,  523. 

186  Mass.  47,  205. 

209  Mass.  65,  81. 

165  Mass.  16,  202,  443. 

187  Mass.  87,  239,  397. 

210  Mass.  344. 

166  Mass.  4. 

188  Mass.  75,  290,  371, 

212  Mass.  271. 

167  Mass.  39,  167. 

437,  481. 

213  .Mass.  148. 

406,  588,  590. 

189  Mass.  62,  336. 

214  Mass.  472. 

168  Mass.  1,  40.  217,  219, 

191  Mass.  40,  338,  479. 

217  Mass.  566. 

226,  254,  270,  395,  450. 

192  Mass.  257,481,  538. 

219  Mass.  277,  399 

169  Mass.  67,  541,  574. 

193  Mass.  89. 

221  Mass.  20,  282. 

170  Mass.  298. 

194  .Mass.  260,  310, 

223  Mass.  509,  521. 

171  Mass.  417,  427. 

378,412. 

226  Mass.  355. 

172  .Mass.  50,  89, 

196  Mass.  95. 

230  Mass.  102,  423, 

130,  150,  548. 

197  Mass.  550. 

446,  ,587. 

Second,  The  negligence  of  a  person  in  the  service  of  the  employer  9 
who  was  intrusted  with  and  was  exercising  superintendence  and  whose  10 
sole  or  principal  duty  was  that  of  superintendence,  or,  in  the  absence  of  11 
such  superintendent,  of  a  person  acting  as  superintendent  with  the  au-  12 
thority  or  consent  of  such  employer;  or  1,3 


158  .Mass.  174,  318, 

379. 

ISO  .Mass.  115,  572. 

203  Mass.  258,  519,  532. 

159  .Mass.  348,  532, 

536. 

181  Mass.  329,  480. 

204  Mass.  130,  197, 

160  Mass.  131,  201, 

182  Mass.  260,  411, 

306,  323,  477. 

248,  457,  573. 

420,  503. 

205  Mass.  270,  283, 

161  Mass.  170,  502 

184  .Mass.  39,  225,  287. 

366,431. 

162  Mass.  185,  312, 

334. 

185  Mass.  139,214. 

206  Mass.  227,  305, 

163  Mass.  216,  344, 

364. 

186  .Mass.  99,318,572. 

451,458. 

164  Mass.  296,  387 

187  Mass.  18,  51,  67, 

207  Mass.  99,  200,  484. 

165Mass.  71,202,  221, 

157,229,239,432.686. 

208  Mass.  97,  196,  229, 

436,  443. 

188  Mass.  141,  420. 

296,  304,  346,  520. 

166  Mass.  48,  268. 

189  Mass.  62,  336,  576. 

209  Mass.  52,  58,  81,  152. 

167  Mass.  23,  52,  588. 

190  .Mass.  421. 

210  Mass.  177,361. 

168  Mass.  10,  226. 

191  Mass.  9,  20,  40, 

211  Mass.  82,  504. 

169  Mass.  416,  485. 

269, 479. 

212  Mass.  171,  189, 

170  Mass.  156,  298 

192  .Mass.  319,  415,  538. 

271,  577. 

171  Mass.  36,  162, 

193  Mass.  103,  495. 

213  Mass.  125,  143,  145,  148 

359,395,417. 

194  Mass.  386,  431. 

284,  524. 

172  Mass.  56,  78. 

195  Mass.  168. 

214  .Mass.  444,461,472. 

150,  222,  324, 

196  Mass.  336,  402,  524. 

216  Mass.  144,  274,  512. 

331,468,504,555. 

197  Mass.  43,  550. 

217  Mass.  161,309,566. 

173  Mass.  26,  105, 

198  Mass.  60,  163, 

218  Mass.  71. 

180,  512. 

337,  528,  577. 

219  Mass.  6,  144. 

174  Mass.  46,  202, 

199  Mass.  254,  421,  522. 

221  Mass.  20,  195,  282. 

442,  453,  455. 

200  Mass.  105,221, 

222  Mass.  17. 

175  Mass.  438. 

360,432,  507,522,571. 

223  Mass.  335,  521. 

176  Mass.  125,  258, 

369. 

201  Mass.  117,  126, 

227  Mass.  135. 

177  Mass.  176.422, 

565. 

269,  393,  486. 

228  Mass.  361. 

178  Mass,  242,  295. 

202  Mass.  17,  228, 

229  Mass.  41. 

179  .Mass.  307. 

480,  554. 

230  Mass.  446. 

Third,  The  negligence  of  a  person  in  the  service  of  the  employer  who  14 
was  in  charge  or  control  of  a  signal,  switch,  locomotive  engine,  elevated  15 
train  or  train  upon  a  railroad  or  elevated  railway;  IG 


164  Mass.  296,  523. 
166  Mass.  268. 
169  Mass.  170. 
171  Mass.  249. 
173  Mass.  177. 
176  Mass.  393. 
182  Mass.  237. 


188  Mass.  420. 
191  Mass.  44. 
195  Mass.  437. 

199  Mass.  522. 

200  .Mass.  422,  551. 
203  .Mass.  437. 
205  Mass.  540. 


207  Mass.  486. 

208  Mass.  11,  520. 

210  Mass.  271. 

211  Mass.  570. 
214  Mass.  459. 
218  Mass.  45. 
220  Mass.  250. 


The  employee,  or  his  legal  representatives,  shall,  subject  to  the  eight  17 
following  sections,  have  the  same  rights  to  compensation  and  of  action  18 
against  the  employer  as  if  he  had  not  been  an  employee,  nor  in  the  serv-  19 
ice,  nor  engaged  in  the  work,  of  the  emploj-er.  20 

A  car  in  use  by  or  in  possession  of  a  railroad  corporation,  or  an  ele-  21 
vated  car  in  use  by  or  in  possession  of  an  elevated  railway  corporation,  22 
shall  be  considered  as  a  part  of  the  ways,  works  or  machinery  of  the  cor-  23 
poration  which  uses  or  has  it  in  possession,  within  the  meaning  of  clause  24 


Chap.  153.]        ejiployers'  liability  for  injuries  not  fatal.  1617 

25  first,  whether  owned  by  such  corporation  or  by  some  other  company  or 

26  person.     One  or  more  cars  which  are  in  motion,  whether  attached  to  an 

27  engine  or  not,  shall  constitute  a  train  within  the  meaning  of  clause  tliird, 

28  and  whoever,  as  a  part  of  his  duty  for  the  time  being,  physically  con- 

29  trols  or  directs  the  movements  of  a  signal,  switch,  locomotive  engine, 

30  elevated  train  or  train  shall  be  deemed  to  be  a  person  in  charge  or  control 

31  of  a  signal,  switch,  locomotive  engine,  elevated  train  or  train  within  the 

32  meaning  of  said  clause. 

33  This  section  shall  not  apply  to  injuries  caused  to  domestic  servants  or  i97  Mass,  391. 

34  farm  laborers  by  fellow  employees. 

1  Section  2.     An  employee  or  his  legal  representatives  shall  not  be  Neglect  to 

2  entitled  under  section  one  of  this  chapter  or  under  chapter  two  hmi-  pfoycroT 

3  dred  and  twenty-nine  to  any  right  of  action  for  damages  against  his  defecTbars""^ 

4  employer  if  such  employee  knew  of  the  defect  or  negligence  which  caused  j|s°77276  §  5 

5  the  injury,  and  failed  within  a  reasonable  time  to  give,  or  cause  to  be  ^^^-  ^™''  §  "• 

6  given,  information  thereof  to  the  employer,  or  to  some  person  superior  §  i3-i. 

7  to  himself  in  the  service  of  the  employer  who  was  intrusted  with  general  iss  Mass!  ass. 

8  superintendence.  192  Mass.  257. 

1  Section  3.     If  a  defect  in  the  ways,  works  or  machinery  of  an  em-  Known  defect 

2  ployer  has  been  reported  to  the  person  whose  duty  it  is  to  remedy  said  Employee"' 

3  defect,  or  cause  it  to  be  remecUed,  or  to  report  its  existence,  and  such  fSmme  risk. 

4  defect  is  not  remedied  within  a  reasonable  time,  and  by  reason  of  said  22i*'ji'a*'ss  282 

5  defect  an  employee  is  injured,  such  employee  shall  not  be  held  to  have  230  Mass.  5S7. 

6  assumed  the  risk  of  such  injury. 

1  Section  4.     An  employee  of  a  railroad  corporation  injiu-ed  by  any  Assumption  of 

2  locomotive,  car  or  train  used  contrary  to  any  provision  of  sections  one  "oad  em™ 

3  hundred  and  fifty-five  and  one  hundred  and  fifty-seven  to  one  hmidred  i8'95!'3G2.  i  7. 

4  and  fifty-nine,  inclusive,  of  chapter  one  hundred  and  si.xty  shall  not  be  j'^og.^'^' 

5  deemed  to  have  assumed  the  risk  of  such  injury,  although  he  continues  Pfl^  *''^''' 

6  in  the  employment  of  such  corporation  after  the  unlawful  use  of  such  J^PPj^'*' 

7  locomotive,  car  or  train  has  been  brought  to  his  knowledge.     An  em-  iss  Mass.  390. 

8  ployee  of  a  railroad  corporation  injured  by  any  locomotive,  car  or  train 

9  by  reason  of  the  negligence  of  any  other  employee  of  the  corporation 
10  shall  not  be  deemed  to  have  assumed  the  risk  of  such  injury. 

1  Section  5.     The  amount  of  damages  awarded  iia  an  action  under  sec-  Limit  of 

2  tion  one  for  a  personal  injury  to  an  employee,  in  which  no  damages  for  recoverable. 

3  his  death  are  awarded,  shall  not  exceed  four  thousand  dollars.  HH]  leo!  ^  *' 

1S93,  359.  R.  L.  100,  §  74.  203  Mass.  273. 

1900,  446.  1909,  514,  §  131.  211  Mass.  504. 

1  Section  6.     No  action  for  the  recovery  of  damages  for  injury  under  Notice  of 

2  section  one  of  this  chapter  or  for  death  under  section  four  or  seven  of  1887T270,  §  3. 

3  chapter  two  hundred  and  twenty-nine  shall  be  maintained  unless  notice  J|||;  a'eo,  \  2. 

4  of  the  time,  place  and  cause  of  the  injiu-y  is  given  to  the  employer  within  ^g'  H^- 

5  sixty  days,  and  the  action  is  commenced  within  one  year,  after  the  acci-  R-  l-  ^oa,  §  75. 

6  dent  which  causes  the  injurv  or  death.    Such  notice  shall  be  in  writing,  §  132. 

..  •>  1910   166 

7  signed  by  the  person  injured  or  by  a  person  in  his  behalf.     If  the  person  §  2:  'eii.' 

8  injured  dies  within  the  time  required  for  giving  the  notice,  liis  executor  or  1912!  251! 

9  administrator  may  gWe  such  notice  within  sixty  days  after  his  appoint-  i5o*mT^!  i90, 

10  ment;  and  in  such  case  the  action  may  be  begun  within  one  year  after  i.'s.Mass  29, 

11  the  appointment  of  such  executor  or  administrator.     If  from  physical  or  igl'lf^gg'*®*- 


1618 


employers'   liability   for   INJITIIES  NOT   FATAL.        [CiLAP.    153. 


156  Mass.  262. 

157  Mass.  51. 
160  Mass.  143, 
201.248. 

162  Mass.  334. 

163  Mass.  105. 

166  Mass,  268. 

167  Mass.  595. 
170  Mass,  348. 

172  Mass.  415. 

173  Mass.  177. 
175  Mass,  391. 
178  Mass,  59. 
180  Mass.  69, 
270. 

182  .Mass.  237. 

197  ilass.  178, 
586. 

198  Mass.  385. 

199  Mass.  418. 
421. 

200  Mass.  284. 

201  Mass.  473. 

202  Mass.  228. 
204  Mass.  197. 

209  Mass.  196. 

210  Mass.  86. 
216  Mass.  512, 
552 

219'Mass.  164. 
228  Mass.  361. 


mental  incapacity  it  is  impossible  for  the  person  injured  to  give  the  notice  12 
Avithin  the  time  provided  in  this  section,  he  may  gi\-e  it  within  ten  days  13 
after  such  incapacity  has  been  removed,  and  if  he  dies  within  said  ten  14 
days  his  executor  or  administrator  may  give  such  notice  within  sixty  days  15 
after  his  appointment.  If  the  employer  dies  without  such  notice  having  IG 
been  given  and  before  the  time  for  giving  such  notice  has  elapsed,  the  17 
notice  may  be  given  to  his  executor  or  administrator,  and  the  time  within  IS 
which  the  notice  may  be  gi\en  as  herein  provided  shall  run  from  the  ap-  19 
pointment  of  the  executor  or  administrator.  A  notice  given  under  this  20 
section  shall  not  be  held  invalid  or  insufficient  solely  by  reason  of  an  21 
inaccuracy  in  stating  the  time,  place  or  cause  of  the  injury  if  it  is  shown  22 
that  there  was  no  intention  to  mislead,  and  that  the  employer  was  not  23 
in  fact  misled  thereby.  If  the  employer  dies  without  such  action  having  24 
been  brought  and  before  the  time  for  bringing  the  action  has  elapsed,  the  25 
action  may  be  begun  against  his  executor  or  administrator  not  less  than  26 
six  months  and  not  more  than  one  year  after  the  executor  or  admin-  27 
istrator  has  given  bond  for  the  performance  of  his  trust.  Any  form  of  28 
WTitten  communication  signed  by  the  person  so  injured,  or  by  some  per-  29 
son  in  his  behalf,  or  by  his  executor  or  administrator,  or  by  some  person  30 
in  behalf  of  such  executor  or  administrator,  containing  the  information  31 
that  the  person  was  so  injured,  giving  the  time,  place  and  cause  of  the  32 
injury  or  death,  shall  be  considered  a  sufficient  notice.  33 


Independent 
contractor. 
1887,  270,  §  4, 
R   L.  106,  §  76. 
1909,  514, 
§  133, 

158  Mass.  232. 
190  Mass.  288. 


Section  7.  If  an  employer  enters  into  a  contract,  wTitten  or  verbal, 
with  an  independent  contractor  to  do  a  part  of  such  employer's  work, 
or  if  such  contractor  enters  into  a  contract  with  a  sub-contractor  to  do 
all  or  any  part  of  the  work  comprised  in  such  contractor's  work  with 
the  employer,  such  contract  or  sub-contract  shall  not  bar  the  liability 
of  the  emplo;y'er  for  injuries  to  the  employees  of  such  contractor  or  sub- 
contractor caused  by  any  defect  in  the  condition  of  the  ways,  works,  7 
machinery  or  plant,  if  they  are  the  property  of  the  employer  or  are  fur-  S 
iiished  by  him  and  if  such  defect  arose,  or  had  not  been  discovered  or  9 
remedied,  through  the  negligence  of  the  employer  or  of  some  person  10 
intrusted  by  him  with  the  duty  of  seeing  that  they  were  in  proper  11 
condition.  12 


Insurance 

fund. 

1887.  270,  §  6, 

R,  L,  106,  §  78. 

1909,  514. 

§  135. 


Section  8.  An  employer  who  has  contributed  to  an  insurance  fund  1 
created  and  maintained  for  the  mutual  purpose  of  indemnifying  an  em-  2 
ployee  for  personal  injuries  for  which  compensation  may  be  recovered  3 
under  section  one  or  to  any  relief  society  formed  under  sections  eightj'-  4 
six,  eighty-seven  and  eighty-eight  of  chapter  one  hundred  and  fifty-nine,  5 
or  the  corresponding  provisions  of  earlier  laws  may  prove  in  mitigation  6 
of  the  damages  recoverable  by  an  employee  under  said  section  one,  such  7 
proportion  of  the  pecuniary  benefit  received  by  such  employee  from  any  8 
such  fund  or  society  on  account  of  such  contribution  of  said  employer  as  9 
the  contribution  of  such  employer  to  such  fund  or  society  bears  to  the  10 
whole  contribution  thereto.  11 


Examination 
of  premises. 

1908,  380. 

1909,  514, 
§  141. 

221  Mass.  489. 


Section  9.  A  justice  of  the  superior  court  may,  upon  petition  setting 
forth  in  ordinary  language  that  the  servant  or  employee  of  a  certain  per- 
son, has  been  injured  in  the  course  of  his  emplo.^'ment,  through  some 
defect  in  the  ways,  works  or  machinery  owned  or  used  by  the  employer, 
and  that  it  is  necessary  in  order  to  protect  the  interests  of  the  injured 


Chap.  154.] 


ASSIGNMENT   OF   WAGES. 


1619 


6  person  that  an  examination  should  be  made  of  the  ways,  works  or  ma- 

7  chinery  tlirough  whose  defect  the  injury  occurred,  and  after  such  notice 

8  to  tlie  employer  as  any  justice  of  said  court  may  direct  or  approve,  and 

9  a  hearing,  grant  an  order  directing  the  employer  or  person  in  control 

10  of  such  ways,  works  or  machinery  to  permit  the  person  named  in  said 

11  order  to  make  such  examination,  under  conditions  to  be  set  forth  in  the 

12  order. 

REFERENCES. 

This  chapter  superseded  as  to  employees  whose  employers  take  out  workmen's 
compensation  insurance,  Chap.  1.52,  §  68. 

Presumption  of  due  care  of  person  injured  or  killed,  Chap.  231,  §  85. 
Recovery  for  death.  Chap.  229. 


CHAPTER     154. 

ASSIGNMENT  OF  WAGES. 


Sect. 

1.  Definition  of  assignment. 

2.  Requisites  for  validity  of  assignments 
to  secure  small  loans. 

Requisites  for  validity  of  other  assign- 
ments. 


3. 


Sect. 

4.  Same  subject. 

5.  Standard  form  of  assignment. 

6.  Validity  against  trustee  process. 

7.  Effect  of  assignment. 


1  Section  1.     The  term  "assignment",  as  used  in  this  chapter,  shall  Definition  of 

-    ,       ,      ,  .  .  „  ,  '^  .  assignment. 

2  include  every  mstrument  purportmg  to  transfer  an  mterest  m  or  an  i906, 390,  §3. 

3  authority  to  collect  the  future  wages  or  salary  of  a  person.  §123.     ' 

1  Section  2.     No  assignment  of  or  order  for  wages  or  salary  to  be  Requisites  for 

2  earned  in  the  future  to  secure  a  loan  of  less  than  three  hundred  dollars  assignme'nts 

3  shall  be  valid  against  an  employer  of  the  person  making  such  assignment  {"^n""^  ^™*" 

4  or  order  until  the  assignment  or  order  is  accepted  in  writing  by  the  em-  l^^S'S'^^' 

5  plover,  nor  untU  the  assignment  or  order  and  the  acceptance  of  the  same  loio,  563. 

6  have  been  filed  and  recorded  with  the  clerk  of  the  town  where  the  person  1912!  urs'.  §  6. " 

7  making  the  assignment  or  order  resides,  if  he  is  a  resident  of  the  com-  221  mS  241! 

8  monwealth,  or  in  which  he  is  employed  if  he  is  not  a  resident  thereof;  nor 

9  shall  it  be  valid  unless  said  assignment  is  substantially  in  the  form  pre- 

10  scribed  in  section  five.    No  such  assignment  or  order  shall  be  recorded 

11  by  the  clerk  of  a  town  unless  it  states  on  its  face  that  the  sum  of  ten 

12  dollars  per  week,  as  earned,  of  the  wages  or  salary  so  assigned  is  exempt 

13  from  such  assignment  or  order.    No  such  assignment  or  order  shall  be 

14  valid  when  made  by  a  married  man  unless  the  written  consent  of  his 

15  wife  to  the  making  thereof  is  attached  thereto.    No  such  assignment  or 

16  order  shall  be  valid  for  a  period  exceeding  one  year  from  the  making 

17  thereof. 


1  Section  3.    No  assignment  of  future  wages  other  than  one  subject  to  Requisites 

2  the  preceding  section  shall  be  valid  for  a  period  exceeding  two  years  from  nUiw  i'i'i'gn"' 

3  the  making  thereof,  nor  unless  made  to  secure  a  debt  contracted  prior  to  i9™g"'308 

4  or  simultaneously  with  the  execution  of  said  assignment,  nor  unless  exe-  \^°^- 1'?0'  5 1- 

5  cuted  in  writing  in  the  standard  form  set  forth  in  section  five  and  signed  §  121-^ 

6  by  the  assignor  in  person  and  not  by  attorney,  nor  unless  such  assignment  weVass'.  528. 


1620 


ASSIGNMENT   OF  WAGES. 


[CiLiP.    154. 


197  Mass,  3SS. 
205  Mass.  26. 
210  Mass.  487. 
232  Mass.  42. 


states  the  date  of  its  execution,  the  money  or  the  money  value  of  goods  7 
actually  furnished  by  the  assignee  and  the  rate  of  interest,  if  any,  to  be  8 
paid  thereon.  Three  fourths  of  the  weekly  earnings  or  wages  of  the  as-  9 
signor  shall  at  all  times  be  exempt  from  assignment,  and  no  assignment  10 
shall  be  valid  which  does  not  so  state  on  its  face.  No  such  assignment  11 
shall  be  valid  when  made  by  a  married  man  unless  the  written  consent  12 
of  his  wife  to  the  making  thereof  is  attached  thereto.  13 


Same  subject. 
1906.  390,  5  2. 
1909.  514. 
§  122. 
207  Mass.  328. 


Section  4.     No  assignment  under  section  three  shall  be  valid  unless  1 

a  copy  thereof  is  delivered  to  the  assignor  by  the  assignee  at  the  date  of  2 

the  execution  of  such  assignment.    No  such  assignment  shall  be  binding  3 

on  the  employer  of  the  assignor  until  a  copy  of  the  assignment  and  a  4 

WTitten  account,  which  shall  conform  to  the  requirements  hereinafter  5 

stated,  have  been  delivered  to  said  employer.    The  account  shall  contain  6 

a  statement  of  the  balance  due  and  of  the  sums  of  money  received  by  7 

the  assignee,  together  with  the  date  of  every  such  payment  and  a  state-  8 

ment  as  to  whether  such  payment  is  interest,  a  payment  on  the  prin-  9 

cipal,  or,  in  case  of  a  loan,  a  payment  on  the  charge  for  making  and  10 

securing  it.  11 


standard  form 
of  assignment. 
1906,  390,  §  4. 
1909,  514, 
§  124. 

I91C.  208,  §  2. 
235  Mass.  2S4. 


Section  5.     The  standard  form  of  assignment  shall  be  as  follows: 

Know  All  Men  by  these  Presents. 

That  I,  of  in  the  county 

of  ,  for  a  valuable  consideration,  to  me  paid  by  , 

of  ,  the  receipt  whereof  I  do  hereby  acknowledge,  do  hereby 

assign  and  transfer  to  said  all  claims  and 

demands,  not  exempt  by  law  (which  I  now  have,  and  all)  which  within  a  period 
of  from  the  date  hereof  I  may  and  shall  have  against  my  present 

employer,  and  against  any  person  whose  employ  I  shall  hereafter  enter,  (for  all 
sums  of  money  due  and)  for  all  sums  of  money  and  demands  which,  at  any  time 
within  said  period  may  and  shall  become  due  to  me,  for  services  as 
To  have  and  to  hold  the  same  to  the  said  ,  his  executors,  adminis- 

trators and  assigns,  to  secure  a  debt 

(1)  Of  dollars  (with  interest  thereon  from  ,  at  the 
rate  of  per  cent  per  annum) ,  for  money  (or  goods)  actually  furnished 
by  the  assignee  amounting  to                           dollars. 

(2)  Contracted  prior  to  the  execution  of  this  assignment  (or  contracted  simul- 
taneously with  the  execution  of  this  assignment). 

(3)  Three  fourths  of  the  weekly  earnings  or  wages,  which  are 
dollars,  are  exempt  from  this  assignment. 

(4) '   Ten  dollars  per  week,  as  earned,  is  exempt  from  this  assignment. 
In  Witness  Whereof,  I  have  set  my  hand  this  day  of 

Signed  and  delivered,  in  presence  of  h.  m. 


M.    Received  and  entered  in  records  of  assignment  of  wages  in 
clerk's  office  of  the  of  ,  book  ,  page 

,     Clerk. 


Validit.v 

against  trustee 

process. 

1865,  43, 

§§2,3. 

P.  S.  183,  §  39. 

R.  L.  189,  §  34.  vvhere  the  assignor  resides  at  the  time  of  such  record 


Section  6.  No  assignment  of  future  earnings  shall  be  valid  against 
a  trustee  process,  unless  before  service  of  the  writ  upon  the  alleged  trustee 
the  assignment  has  been  recorded  in  tiie  office  of  the  clerk  of  the  town 


1909,  514,  §  125. 

1910,  563. 

8  Cuflh.  151. 

1  Gray,  105. 

2  Gray,  565. 
5  Gray,  49. 
7  Gray,  ISO. 


2  Allen,  407. 

9  Allen,  108. 

12  Allen,  498. 

102  Mass.  2,33,235. 

108  Mass.  347. 

110  Mass.  204. 

115  Mass.  165. 


120  Mass.  94. 

121  Mass.  167,431. 

123  Mass.  353. 

124  Mass.  162. 

125  Mass.  475. 

126  Mass.  117. 
131  Mass,  534. 


1905,  308. 

162  Mass.  662. 

184  Mass.  486. 

185  Mass.  54. 
194  Mass.  579. 
205  Mass.  26. 
221  Mass.  241. 


1  Clause  (4)  to  be  used  in  place  of  clause  (3)  only  for  assignment  under  section  2. 


Chap.  154.]  assignment  of  wages.  1621 

1  Section  7.     Except  as  above  provided,  an  assignment  of  wages  made  Effect  of 

2  in  accordance  with  this  chapter  shall  bind  all  wages  earned  by  the  as-  i90b,"m  §  s. 

3  signer  within  the  period  named  in  such  assignment. 

1909,  514,  §  12G.  207  Mass.  328.  221  Mass.  241. 

REFERENCES. 

Release  of  assignment  of  wages  given  as  security  for  a  small  loan  when  the  loan  is 
paid,  Chap.  140,  §  107. 

Assignment  of  rights  in  retirement  funds  not  valid,  Chap.  32,  §  91. 


1622 


GENERAL   PROVISIONS   RELATRE   TO   CORPORATIONS.      [ChAP.    155. 


TITLE   XXII. 

CORPORATIONS. 

Chapter  155.  General  Provisions  relative  to  Corporations. 

Chapter  156.  Business  Corporations. 

Chapter  157.  Co-operative  Corporations. 

Chapter  158.  Certain  Miscellaneous  Corporations. 

Chapter  159.  Common  Carriers. 

Chapter  160.  Railroads. 

Chapter  161.  Street  Railways. 

Chapter  162.  Electric  Railroads. 

Chapter  163.  Trackless  Trolley  Companies. 

Chapter  164.  Manufacture  and  Sale  of  Gas  and  Electricity. 

Chapter  165.  Water  and  Aqueduct  Companies. 

Chapter  166.  Telephone  and  Telegraph  Companies,  and  Lines  for  the  Transmission 

of  Electricity. 

Chapter  167.  Biinks  and  Banking. 

Chapter  168.  Savings  Banks. 

Chapter  169.  Deposits  with  Others  than  Banks. 

Chapter  170.  Co-operative  Banks. 

Chapter  171.  Credit  Unions. 

Chapter  172.  Trust  Companies. 

Chapter  17.3.  Mortgage  Loan  Investment  Companies. 

Chapter  174.  Bond  and  Investment  Companies. 

Chapter  175.  Insurance. 

Chapter  176.  Fraternal  Benefit  Societies. 

Chapter  177.  Assessment  Insurance. 

Chapter  178.  Savings  Bank  Life  Insurance. 

Chapter  179.  Proprietors  of  Wharves,  Real  Estate  lying  in  Common,  and  General 

Fields. 

Chapter  180.  Corporations  for  Charitable  and  Certain  Other  Purposes. 

Chapter  181.  Foreign  Corporations. 

Chapter  182.  Voluntary  Associations. 


CHAPTER    155. 

GENERAL  PROVISIONS   RELATIVE  TO   CORPORATIONS. 


Sect. 

general  provisions. 

1.  Scope  of  chapter,  etc. 

2.  Duties  of  commissioner  of  corporations 

and  ta.xation. 

3.  Charters  subject  to  alteration  or  repeal. 

4.  Use  of  names  of  public  service  corpora- 

tions. 

5.  Investigation,  etc.,  of  use  of  names  of 

public  service  corporations. 


Sect. 

powers  of  corporations. 

6.  General  powers. 

7.  By-laws. 

8.  Conveyance  of  land. 

9.  Corporate  name. 

10.  Change  of  name. 

11.  Unauthorized    business    may    be    en- 

joined. 

12.  Free  beds  in  hospitals. 


Chap.  155.]      general  provisions  EELATI^"E  to  corporations. 


1623 


Sect. 

organization  and  meetings. 

13.  Corporations  created  by  special  charter. 

14.  First  meeting  of  chartered  corporations. 

15.  Meeting  called  by  justice  of  the  peace, 

when. 

CAPITAL    STOCK. 

16.  Par  value  of  shares. 

17.  Shares  not  to  be  issued  for  less  than  par. 

18.  Preferred  stock. 

19.  Laws  governing  preferred  stock;    form 

of  certificate. 

20.  Notice  to  stockholders  of  increase ;  dis- 

position of  new  stock. 

21.  Executors,  etc.,  may  vote. 

22.  Stock  books;  corporate  records. 

23.  List  of  stockholders  to  be   filed  with 

state  secretary. 

TRANSFERS    OF   STOCK. 

24.  What  law  governs. 

25.  Construction. 

26.  Definitions. 

27.  Mode  of  transfer. 

28.  Powers  of  infants,    incompetents   and 

fiduciaries  not  affected. 

29.  Rights  of  record  owner. 

30.  Title  by  delivery  may  have  priority  over 

title  by  power  of  attorney,  etc. 

31.  Delivery  by  one  having  no  title. 

32.  Endorsement  procured  by  fraud,  etc. 

33.  Rescission  of  transfer. 

34.  Effect  of  rescission  on  rights  of  pur- 

chaser for  value  in  good  faith. 


feECT. 

35.  Incomplete  transfer. 

36.  Effect  of  attempted  transfer. 

37.  Warranties. 

38.  Warranties  by  mortgagee,  etc. 

39.  New  certificates. 

40.  Lien  or  restriction  to  be  stated  on  cer- 

tificate. 

41.  Effect  of  alteration. 

42.  New  certificate  in  place  of  one  lost  or 

destroyed. 

43.  Endorsement. 

44.  Who  deemed  owner  of  certificate. 

45.  Transfer  of  instalment  stock. 

46.  New  certificates.     Pledge. 

UNCL-IIMED    DIVIDENDS. 

47.  List  of  unclaimed  di\-idends  to  be  pub- 

lished. 

FALSE    REPORTS    OR    STATEMENTS    CONCERN- 
ING  CORPORATIONS. 

48.  Penalty  for  false  statement. 

49.  Statement  required  by  foreign  law. 

DISSOLUTION    OF    CORPORATIONS. 

50.  Dissolution  of  corporations. 

51.  Continuation  for  three  years  to  close 

concerns. 

52.  Receivers. 

53.  Receivers  to  pay  debts  and  distribute 

surplus. 

54.  Surrender  of  certificate   of  incorpora- 

tion. 

55.  Returns  to  secretary  of  dissolution. 


GENERAL   PROVISIONS. 


Section  1.     The  prov-isions  of  this  chapter,  unless  expressly  limited  ^^"pL"'^,^ 

p.  S.  105.  §  1. 
R.  L.  109,  §  1. 


in  their  application,  shall  apply  to  all  corporations  created  by  or  organ 
ized  under  the  laws  of  the  commonwealth,  except  so  far  as  they  are  in- 
consistent with  other  proxisions  of  law  relative  to  particular  corporations 
or  classes  of  corporations.    In  this  chapter,  unless  the  context  otherwise 

6  requires,  "commissioner"  means  the  commissioner  of  corporations  and 

7  taxation. 


1919.  350, 
§§  52,  53. 


1  Section  2.     The   commissioner   shall   examine   tlie  certificates  and  Duties  of 

.  .  1*11.  .   .  cominissioner 

2  reports  relative  to  corporations  submitted  to  mm  under  the  pro\isions  of  corporations 

3  of  law,  and  make  suitable  endorsements  upon  such  as  conform  to  the  i870, 224.  §  6i. 

4  requirements  of  law.    He  shall  keep  a  record  of  the  names  of  corpora-  e.  l.  110,  §  i. 

5  tions  which  submit  certificates  to  his  inspection,  of  the  date  of  inspec-  ^^°^'*^' 


§§3,95 


6  tion  and  of  his  certificates  when  given,  and  of  the  result  in  brief  of  his  Jgio',!^^'  ^  ^"' 

7  inspection.    He  shall  report  to  the  attorney  general  instances  of  neglect 

8  or  omission  on  the  part  of  corporations  to  comply  with  the  provisions 

9  of  law  for  the  enforcement  of  the  penalties  therefor. 


1  Section  3.     Every  act  of  incorporation  passed  since  March  eleventh,  charters  sub- 

2  eighteen  hundred  and  thirty-one,  shall  be  subject  to  amendment,  altera-  ji^no"  repeal'. 

3  tion  or  repeal  by  the  general  court.     All  corporations  organized  under  ^g°°^'-  ""^•"i- 


1624 


GENERAL   PROVISIONS    RELATIVE    TO    CORPORATIONS.      [ChAP.    155. 


(Const.  Rev. 
art.  75.) 
1830,  81, 
R.  S.  38,  §  36; 
44,  §  23. 
G.  S.  68,  I  41. 
P.  S.  105, 
§§2,3. 

R.L.  109,  §  3. 
1903,  437, 
§§  2,  95. 
1914,  742. 
§§  12,  199. 


general  laws  shall  be  subject  to  such  laws  as  may  be  hereafter  passed  4 

affecting  or  altering  their  corporate  rights  or  duties  or  dissolving  them.  5 

Corporations  shall,  notwithstanding  such  repeal  or  dissolution,  be  sub-  6 

ject  to  sections  fifty-one  and  fifty-two.    Such  laws  of  amendment,  alter-  7 

ation  or  repeal  or  such  dissolution  shall  not  take  away  or  impair  any  8 

remedy  which  may  exist  by  law  consistently  wHh  said  sections  against  the  9 

corporation,  its  members  or  officers,  for  a  liability  pre\-iously  incm-red.  10 


23  Pick.  334. 
6  Cush.  424. 
9  Cush.  604. 
4  Grav,  227. 
13  Gray,  239. 
15  Gray.  106. 
4  Allen,  198. 


5  .\llen,  230, 
11  Allen,  26S. 
13  Allen,  29. 

103  Masa.  254. 

104  Mass.  446. 
109  Mass.  103.  506. 


118  Mass.   290  561. 
123  Mass.  32. 
147  Mass.  S4S. 
212  Mass.  82. 
215  Mass.  394. 
218  Mass.  387. 


Use  of  names 
of  public 
service  cor- 
porations. 
1913,499.  §  1. 
1914.  742, 
§§  173,  199. 
1919,  350, 
§117. 


Section  4.     No  person  owning,  holding  or  controlling  shares  of  stock  1 

of  any  public  service  corporation  shall  hereafter  use  any  name  or  title  2 

or  other  words  that,  in  the  opinion  of  the  department  of  public  utilities,  3 

might  lead  the  public  to  believe  that  such  person  is  a  public  service  cor-  4 

poration  or  that  its  business  is  that  of  a  pubHc  ser\'ice  corporation.  5 


Investigation, 
etc..  of  use  of 
names  of  publ: 
serv-ice  cor- 
porations. 

1913,  499. 
§§2,3. 

1914,  742, 
§§  173.  199. 
1919,  350, 
§117. 


Section  5.  The  department  of  public  utilities  may  investigate  and  1 
"^  determine  whether  any  person  is  \-iolating  the  preceding  section;  and  2 
any  person  \"iolating  any  pro\ision  thereof  shall  forfeit  to  the  common-  3 
wealth  one  hundred  dollars  a  day  for  every  day  or  part  thereof  during  4 
which  such  ^^olation  continues  after  the  determination  aforesaid.  Any  5 
such  ^^olation  shall  forthwith  be  reported  by  the  department  to  the  6 
attorney  general,  after  said  determination  and  notice  thereof  to  such  7 
person.  The  said  forfeiture  may  be  recovered  by  an  information  or  other  8 
appropriate  proceeding  brought  in  the  supreme  judicial  or  superior  court  9 
in  the  name  of  the  attorney  general.  Upon  such  information  or  other  10 
proceeding  the  court  may  issue  an  injunction  restraining  such  person  11 
from  further  prosecution  of  his  business  within  the  commonwealth  dur-  12 
ing  the  pendency  of  such  proceeding  or  for  all  time,  and  may  make  such  13 
other  order  or  decree  as  equity  and  justice  may  require.  14 

This  and  the  preceding  section  shall  not  apply  to  the  continued  use  by  15 
any  person  of  any  name  or  title  adopted  prior  to  April  seventeenth,  nine-  10 
teen  hundred  and  thirteen.  17 


POWERS   OF   CORPORATIONS. 


General 

powers. 

1808.  65.  §  1. 

1829.  53,  I  1. 

1833,  83,  I  1. 

R.  S.  38,  I  6; 

44,  I  1. 

G.  S.  60,  §  2; 

68,  §  1. 

P.  S.  105,  §  4. 

R.  L.  109.  §  4, 


Section  6.  A  corporation  may,  in  its  corporate  name,  sue  and  be 
sued,  appear,  prosecute  and  defend  to  final  judgment  or  decree  and  execu- 
tion; have  a  corporate  seal,  which  it  may  alter  at  pleasure;  elect  in  such 
manner  as  it  may  determine  all  necessary  officers,  fix  their  compensation 
and  define  their  duties  and  obligations;  and  make  by-laws  and  regula- 
tions consistent  vcith  law  for  its  own  government,  the  due  and  orderly 
cb°^(6Md)!(e).'  conduct  of  its  affairs  and  the  management  of  its  property. 

(h),  95!   '   '  1914,  742,  §§  17,  199.  10  Mass.  91. 


By-laws. 

1808,  65,  5  1. 

1829,  53.  §  1. 

1833.  83,  I  1. 

R.S.  38,  §  6: 

44,  §  2. 

G.  S.  60,  §  2; 

68,  I  7. 

P.  S.  103.  §  5. 

R.  L,  109.  §  5. 


Section  7.  Every  corporation,  except  those  go^'erned  by  chapter 
one  himdred  and  fifty-six,  may  by  its  by-laws,  except  as  otherwise  ex- 
pressly provided,  determine  the  manner  of  calling  and  conducting  its 
meetings;  the  number  of  members  which  shall  constitute  a  quorum;  the 
number  of  shares  which  shall  entitle  the  members  to  one  or  more  \-otes ; 
8  ivi'et^3oi,*32i.  the  mode  of  voting  by  proxy ;  the  mode  of  selling  shares  for  the  payment 


Chap.  155.]      general  provisions  REL.\Tn'E  to  corporations.  1625 

7  of  assessments;   and  the  tenure  of  office  of  the  several  officers;   and  may 
S  annex  suitable  penalties  to  such  by-laws,  not  exceeding  twenty  dollars 
9  for  one  offence;  but  no  by-law  inconsistent  with  law  shall  be  made  by  a 
10  corporation. 

1  Section  8.     A  corporation  may  convey  land  to  which  it  has  a  legal  onand!^""*' 

2  title.  R.  S.  44,  §  6.  G.  S.  68,  §  8. 

p.  S.  105,  §  6,  R.  L.  109,  §  6.  11  Allen,  65.  218  Mass.  339. 

1  Section  9.     A  corporation  organized  under  general  laws  may  assume  corporate 

2  any  name  which,  in  the  judgment  of  the  commissioner,  indicates  that  it  iIm^ss,  §  e. 

3  is  a  corporation;  but  it  shall  not  assume  the  name  of  another  corporation  isvo'^wf  §8 

4  established  under  the  laws  of  the  commonwealth,  or  of  a  corporation,  firm,  ^^^^  ^°^j  5 17. 

5  association  or  person  carrying  on  business  in  the  commonwealth,  at  the  ^.„^o\°?'  ^  *; 

6  time  of  such  organization  or  within  tlu-ee  years  prior  thereto,  or  assume  i903, 437, 

7  a  name  so  similar  thereto  as  to  be  likely  to  be  mistaken  for  it,  except  1914',  742, 

8  with  the  wTitten  consent  of  said  existing  corporation,  firm  or  association  1918,257', 

9  or  of  such  person  previously  filed  with  the  commissioner.     The  supreme  fg^ig^^.  333^ 

10  judicial  or  superior  court  shall  have  jurisdiction  in  equity,  upon  the  ap-  j92{/q^^' 

11  plication  of  any  person  interested  or  affected,  to  enjoin  such  corporation  }i?  M"^^  ts| 

12  from  doing  business  under  a  name  assumed  in  violation  of  this  section,  2i2Miis8.'2i9.' 

...  .  .  569 

13  although  its  certificate  or  articles  of  organization  may  have  been  approved  226  Mass.  42. 

14  and  a  certificate  of  incorporation  may  have  been  issued  to  it. 

1  Section  10.     A  corporation,  except  one  subject  to  chapter  one  hun-  change 

2  dred  and  fifty-six  or  chapters  one  hundred  and  sixty  to  one  hundred  and  i,s9°i^  306, 

3  sixty-tliree,  inclusive,  may  at  a  meeting  duly  called  for  the  purpose,  by  i892^''i9S;  201. 

4  vote  of  two  thirds  of  each  class  of  stock  outstanding  and  entitled  to  vote,  J|^|'  ]9|-  ^  g 

5  or,  in  case  such  corporation  has  no  capital  stock,  by  vote  of  two  thirds  Ifl^v^g^' 

6  of  the  persons  legally  qualified  to  vote  in  meetings  of  the  corporation,  or  1901,422,  §  9. 

7  by  a  larger  vote  if  its  agreement  of  association  or  by-laws  shall  so  require,  §§  9,' 10. ' 

8  change  its  name.    Articles  of  amendment  signed  and  sworn  to  by  the  1914!  742! 

9  president,  treasurer  and  a  majority  of  the  directors  or  other  officers  fg^il  350, 

10  having  the  powers  of  directors,  shall  within  thirty  days  after  such  meeting  ^^  *^-  *''•  ^"^• 

11  be  prepared,  setting  forth  such  amendment,  and  stating  that  it  has  duly 

12  been  adopted  by  the  stockholders.    Such  amendment  shall  be  submitted 

13  to  the  commissioner  who  shall  examine  it,  and  if  he  finds  that  it  conforms 

14  to  the  requirements  of  law,  he  shall  so  certify  and  endorse  his  approval 

15  thereon.    Thereupon  the  state  secretary  shall  direct  the  officers  of  the 

16  corporation  to  publish  in  such  form  as  he  may  see  fit,  in  a  newspaper 

17  published  in  the  county  where  the  corporation  has  its  principal  office  or 

18  place  of  business,  notice  of  such  change  of  name.    When  the  state  secre- 

19  tary  is  satisfied  that  such  notice  has  been  published  as  required  by  him, 

20  he  shall  upon  the  payment  of  a  fee  of  one  dollar  grant  a  certificate  of 

21  the  name  which  the  corporation  shall  bear,  which  name  shall  thereafter 

22  be  its  legal  name,  and  he  shall  cause  the  article  of  amendment  and  the  en- 

23  dorsements  thereon  to  be  recorded  in  his  office.    In  the  case  of  corpora- 

24  tions  subject  to  chapter  one  hundred  and  seventy-five,  one  hundred  and 

25  seventy-six  or  one  hundred  and  seventy-seven,  the  approval  of  the  com- 

26  missioner  of  insiu-ance  shall  be  required  before  the  commissioner  of  cor- 

27  porations  and  taxation  approves  the  article  of  amendment.     No  article 

28  of  amendment  changing  the  name  of  any  corporation  shall  take  effect 

29  until  it  has  been  filed  in  the  office  of  the  state  secretarv  as  aforesaid. 


1626 


GENERAL   PROVISIONS   RELATIVE   TO   CORPORATIONS.      [ChAP.    155. 


Unauthorized 
business  may 
be  enjoined. 
1906.  372. 
19fi  Mass.  458. 

197  Mass.  194. 

198  Mass.  413. 
215  Mass.  394. 
220  Mass.  536. 


Section  11.  Upon  an  information  in  equity  by  the  attorney  general 
at  the  relation  of  the  commissioner,  the  supreme  judicial  court  may 
restrain  by  injunction  any  corporation  from  assuming  or  exercising  any 
franchise  or  privilege  or  transacting  any  kind  of  business  not  authorized 
bv  its  charter  and  the  laws  of  the  commonwealth. 


Free  beds  in 
hospitals. 
1889,  258. 
R.  L.  110.  §50. 
1903.  437. 
§§  94,  95. 
1914,  742. 
§§  60,  199. 
1919,  333,  §  15. 


Section  12.     Every  corporation  may,  by  a  vote  of  a  majority  of  each  1 

class  of  stock  outstanding  and  entitled  to  vote,  appropriate  not  more  2 

than  five  thousand  dollars  or  an  annual  sum  of  not  more  than  five  hundred  3 

dollars  for  the  support  of  free  beds  in  one  or  more  hospitals  in  the  com-  4 

raonwealth,  for  the  use  of  its  employees.  1920, 2.  5 


Corporations 
created  by 
special  charter. 
1866,  264,  §  1. 
G.  S.  68.  §  2. 
P.  S.  105,  §  8. 
1898.  336. 
R.  L.  109,  §  12. 
1903,  437, 
§§  6,  95. 


organization  and  meetings. 

Section  13.     A  corporation  created  by  special  charter  shall,  if  no  time  1 

is  limited  therein,  be  organized  within  two  years  after  the  passage  of  2 

its  act  of  incorporation.    Within  thirty  days  after  the  final  adjournment  3 

of  the  meeting  for  organization  of  any  such  corporation,  the  recording  4 

officer  thereof  shall  make,  sign,  swear  to  and  file  in  the  office  of  the  state  5 

secretary  a  certificate  stating  the  date  on  which  the  meeting  for  organiza-  6 

tion  was  held,  the  names  of  the  officers  elected  at  such  meeting  and  the  7 

amount  of  capital  stock,  if  any,  fixed  under  its  charter.  8 


First  meeting 
of  chartered 
corporations. 
1808,  65,  §  2. 
1829,  53,  §  2. 
1833,  83,  §  2. 
R.  S.  44,  §  3. 
1855,  140. 
G.  S.  68,  §  3. 
P.  S.  105,  §  9. 
R.  L.  109.  §  13. 
1903,  437, 
§§  6,  9.  95. 
1918,257, 
§347. 
1919, 5. 
1920, 2. 
16  Mass.  94. 
3  Met.  282. 
11  Gush.  369. 


Section  14.     The  first  meeting  of  such  corporation,  luJess  otherwise  1 

provided  in  its  act  of  incorporation,  shall  be  called  by  a  notice,  signed  by  2 

the  person  or  by  a  majority  of  the  persons  named  in  such  act,  setting  3 

forth  the  time,  place  and  purposes  of  the  meeting,  and  delivered  seven  4 

days  at  least  before  the  meeting  to  each  member  or  published  in  a  news-  5 

paper  of  the  county  where  the  corporation  is  established.     If  all  the  6 

persons  so  named  shall,  in  writing,  upon  the  charter  or  a  certified  copy  7 

thereof,  waive  such  notice  and  fix  the  time  and  place  of  the  meeting,  no  8 

notice  shall  be  required.    The  persons  so  named  and  their  associate  sub-  9 

scribers  to  stock  before  the  date  of  the  act  shall  hold  the  franchise  or  10 

privileges  granted  until  the  corporation  is  organized.  11 


12  Allen,  362. 
98  Mass.  98. 


101  Mass.  385. 
129  Mass.  540. 


146  Mass.  482. 
199  Mass.  127,  141. 


Meeting  called 
by  justice  of 
the  peace, 
when. 
1833,  49. 
R.  ,S.  44,  §  4. 
G.  S.  68,  §  5. 
P.  S.  105,  §  11. 
R.  L.  109,  §  15. 
1903,  437, 
§§21,95. 
1906,  463, 

II,  §§  34.  258, 

III,  §§  1.5,  158. 
1914,742, 

§§  19,  199. 


Section  15.     If,  by  reason  of  the  death  or  absence  of  the  officers  of  a  1 

corporation,  or  other  cause,  there  is  no  person  duly  authorized  to  call  or  2 

preside  at  a  legal  meeting,  or  if  the  clerk  or  other  officer  refuses  or  neglects  3 

tb  call  it,  a  justice  of  the  peace  may,  upon  written  application  of  tlu-ee  or  4 

more  of  the  members  or  stockliolders,  issue  a  warrant  to  any  one  of  them,  5 

directing  him  to  call  a  meeting  by  giving  such  notice  as  is  required  by  law,  6 

and  may  in  the  same  warrant  direct  him  to  preside  at  the  meeting  until  7 

a  clerk  is  duly  chosen  and  qualified  if  no  officer  is  present  legally  author-  8 

ized  to  preside.  i9i8, 257,  §  374.  1919,5.  1920,2.  9 


Par  value 
of  shares. 
1860,  128,  §  1. 
1867,  131. 
1870,  224,  §  7. 
1873,  37. 
P.  S.  105,  §  10. 
1894,  500. 
1898,  503,  §  2. 
R.  L.  109,  §  IS. 


CAPITAL  stock. 

Section  16.  The  par  value  of  the  common  or  preferred  shares  of  all 
corporations  shall  be  one  hundred  dollars.  Any  corporation  which  may 
be  organized  with  shares  of  a  par  value  other  than  one  hundred  dollars 
may  at  a  meeting  of  stockliolders  called  for  the  purpose  change  the  par 
value  of  its  shares  to  that  amount  if  a  certificate  of  such  change  shall, 
within  ten  days  thereafter,  be  made,  signed  and  sworn  to  by  its  president, 


ClL^P.   155.]        GENERAL  PROVISIONS  RELATIVE  TO   CORPORATIONS.  1627 

7  treasurer  and  a  majority  of  its  directors,  or  other  officers  having  the  1914,742, 

8  powers  of  directors,  and,  having  been  approved  as  to  its  form  by  the 

9  commissioner,  be  filed  in  the  office  of  the  state  secretary. 

1  Section  17.     No  corporation  shall  issue  a  share  for  a  less  amount  shares  not  to 

2  to  be  actually  paid  in  thereon  than  the  par  value  of  the  shares  at  the  lessThTn  par. 

3  date  of  issue.         issi,  133,  §  le.  isss,  167.  isso,  104.  g.  s.  68,  §  9. 

1871,  392,  §  3.  P.  S.  105,  §  17;  R.  L.  109,  §  19. 

1873,  39,  I  1.  106,  §  41.  157  Mass.  68. 

1  Section  18.     Every  corporation  may  issue  preferred  stock  to  an  Preferred 

2  amount  not  exceeding  at  any  time  the  amount  of  the  general  stock  i<)02,'44i,  §  i. 

3  then  outstanding,  with  such  preferences  and  voting  powers  or  restric-  1913,' ^I;  §^5' 

4  tions  or  qualifications  thereof  as  shall  be  fixed  and  determined  in  the  |^3^o^i''|g 

5  agreement  of  association  at  the  organization  of  the  corporation;  or  after  i^is.  299,  §  4. 

6  organization,  by  a  two  thirds  vote  of  all  the  stock,  or  by  a  bj'-law  adopted 

7  by  a  two  thirds  vote  of  all  the  stock,  at  a  meeting  duly  called  for  the 

8  purpose.    This  section  shall  not  apply  to  corporations  organized  under 

9  chapter  one  hundred  and  fifty-six  or  to  railroad  corporations  or  street 
10  railway  companies. 

1  Section  19.     Such  stock  shall  be  issued  subject  to  all  general  laws  Laws  governing 

2  governing  the  issue  of  capital  stock;   and  each  certificate  subsequently  Esmrof  cerSa-' 

3  issued  of  stock  in  the  corporation  shall  have  fully  and  plainly  printed  19*02, 441,  §  2. 

4  thereon  the  by-law  or  vote  of  the  corporation  authorizing  the  issue  of  §§'36,799. 

5  preferred  stock. 

1  Section  20.     If  a  corporation,  not  subject  to  chapter  one  hundred  ^"Jlfhoyers 

2  and  fifty-six,  increases  its  capital  stock  and  no  other  provision  therefor  °^  increase; 

.  Ill  -i*  iiipi'i*  •  •  1  p  aisposition  of 

3  IS  made  by  law,  its  directors  shall  forthwith  give  written  notice  thereof  new  stock. 

4  to  each  stockholder  who  was  such  at  the  date  of  the  vote  to  increase,  lan',  io9; 

5  stating  the  amount  of  the  increase,  the  number  of  shares  or  fractions  of  1S77, 230,  §  3. 

6  shares  of  the  new  stock  which  such  stockholder  is  entitled  to  take,  and  Joo',  §  37.  ^  ^*'' 

7  the  time,  not  less  than  thirty  days  after  the  date  of  such  vote,  within  fjt/'i  g'J'  ^^^• 

8  which  such  new  stock  shall  be  taken;  and,  within  said  time,  each  stock-  ^oSV'^'^^' ll^' 

9  holder  may  take  at  par  his  proportion  of  such  new  shares,  according  to  ibs  Mass!  345. 

10  the  number  of  his  shares  at  the  date  of  such  vote  to  increase.    If,  at 

11  the  expiration  of  said  time,  any  shares  remain  untaken,  the  directors 

12  shall  sell  them  by  public  auction  for  the  benefit  of  the  corporation  at 

13  not  less  than  the  par  value  thereof. 

1  Section  21.     An    executor,    administrator,    guardian,    conservator.  Executors, 

2  trustee  or  person  in  any  other  representative  or  fiduciary  capacity  shall  Isib^ls^ i°2'.' 

3  represent  the  shares  of  his  trust  at  all  meetings  of  a  corporation,  and  fssl,  98,11^' 

4  may  vote  as  a  stockholder. 

G.S.  68,  §11.  1903,  437,  §§29,  95.  1914,  742,   §§  21,  199. 

P.  S.  105.  §  13.  1906,403,  II.  §§38,  9  Cush.  192. 

R.  L.  109,  §  17.  258,  III,  §§  19,  158.  101  Mass.  398. 

1  Section  22.    The  agreement  of  association,  an  attested  copy  of  the  stock  books; 

2  articles  of  organization  or  of  articles  in  amendment  of  said  agreement  recorX " 

3  or  of  said  articles  and  of  the  by-laws,  with  a  reference  on  the  margin  of  Htl',  111'. 

4  the  copy  of  the  by-laws  to  all  amendments  thereof,  and  a  true  record  of  cP|'(f|,^§|  lo, 

5  all  meetings  of  stockholders  shall  be  kept  by  every  corporation  at  its  5|yi°j.,o 

6  principal  office  in  the  conimonwealth  for  the  inspection  of  its  stock-  ism.  201,  §  i. 

7  holders.     The  stock  and  transfer  books  of  every  corporation,  which  §§'21-23! 


1628 


GENERAL   PROVISIONS   RELATIAT;  TO   CORPORATIONS.       [ChaP.    155. 


R.  L.  109. 
§§  32.  33,  35. 
1903,437, 
«30,95. 
1906,  463, 

II.  §§42,258. 

III,  §§23,158. 
1914,  742, 
§§24,25,27, 
199. 

1919,  333,  §  17. 

1920,2. 

194  Mass.  239. 

205  Mass.  121. 

220  Mass.  224, 
380. 

221  Mass.  38. 
234  Mass.  592. 
1  Op.  A.  G.  278. 


List  of  stock- 
holders to  be 
filed  with  state 
secretary. 
1889,  222.  §  3. 
R.  L.  109,  §34. 
1903,  437,  §95. 
1914.  742. 
§§  26,  199. 
1  Op.  A.  G.  278. 


shall  contain  a  complete  list  of  all  stockholders,  their  residences  and^the  8 
amount  of  stock  held  by  each,  shall  be  kept  at  an  office  of  the  corporation  9 
in  the  commonwealth  for  the  inspection  of  its  stockliolders.  Said  stock  10 
and  transfer  books  and  said  attested  copies  and  records  shall  be  com-  11 
petent  evidence  in  any  court  of  the  commonwealth.  If  any  officer  or  12 
agent  of  a  corporation  having  charge  of  such  copies,  books  or  records  13 
refuses  or  neglects  to  exhibit  them  or  to  submit  them  to  examination  as  14 
aforesaid,  he  or  the  corporation  shall  be  liable  to  any  stockholder  for  all  15 
actual  damages  sustained  by  reason  of  such  refusal  or  neglect,  and  the  16 
supreme  judicial  or  superior  court  shall  have  jurisdiction  in  equity,  upon  17 
petition  of  a  stockholder,  to  order  any  or  all  of  said  copies,  books  or  18 
records  to  be  exhibited  to  him  and  to  such  other  stockholders  as  may  19 
become  parties  to  said  petition,  at  such  a  place  and  time  as  may  be  20 
designated  in  the  order.  21 

Section  23.     A  corporation  not  subject  to  chapter  one  hundred  and  1 

fifty-sLx  shall  within  fifteen  days  after  a  written  request  by  a  stockholder  2 

thereof,  made  not  less  than  thirty  nor  more  than  sixty  days  prior  to  the  3 

time  fixed  for  the  annual  meeting  of  stockholders,  cause  a  complete  list  4 

of  the  stockholders  as  of  the  sixtieth  day  prior  to  the  time  so  fixed,  with  5 

the  residence  of  and  the  number  of  shares  belonging  to  each  stockliolder,  6 

to  be  made  and  filed  in  the  office  of  the  state  secretary.    The  list  shall  7 

be  in  such  form  as  the  commissioner  shall  require  or  approve,  and  shall  8 

be  signed  and  sworn  to  by  the  treasurer  of  the  corporation  or  by  some  9 

other  officer  cognizant  of  the  facts  specially  appointed  by  the  corpora-  10 

tion  to  make  the  same.    If  a  corporation  and  its  treasurer  or  other  officer  11 

so  specially  appointed  omits  or  neglects  to  cause  a  list  of  stockholders  to  12 

be  so  made  and  filed,  they  shall  each  forfeit  not  more  than  one  thousand  13 

dollars  to  be  recovered  in  the  manner  provided  in  section  forty-two  of  14 

chapter  one  hundred  and  fifty-eight.  15 


TR-ANSFERS   OF   STOCK. 

^CTDs""  Section  24.     In  any  case  not  provided  for  by  sections  twenty-five  to 

iiiVass".  429.'  forty-four,  inclusive,  the  rules  of  law  and  equity,  including  the  law  mer- 
chant, and  in  particular  the  rules  relating  to  the  law  of  principal  and 
agent,  executors,  administrators  and  trustees,  and  to  the  effect  of  fraud, 
misrepresentation,  duress  or  coercion,  mistake,  bankruptcy,  or  other 
invalidating  cause,  shall  govern. 

Section  25.  Sections  twenty-four  to  forty-four,  inclusive,  shall  be 
interpreted  and  construed  in  such  manner  as  to  effectuate  their  general 
purpose  to  make  uniform  the  law  of  the  states  which  enact  the  uniform 
stock  transfer  act. 


Construction. 
1910,  171,  §  19. 


1 

2 
3 
4 
5 
6 

1 

2 

3 
4 


Definitions. 
1910,171,  §22. 
211  Mass.  429. 
224  Mass.  442. 


Section  26.     (1)  In    sections   twenty-four   to    forty-four,    inclusi\'e,  1 

unless  the  context  or  subject  matter  other\\ise  requires,  the  following  2 

words  shall  have  the  following  meanings :  3 

"Certificate",  a  certificate  of  stock  in  a  corporation  organized  under  4 

the  laws  of  this  commonwealth  or  of  another  state  whose  laws  are  con-  5 

sistent  with  said  sections.  6 

"DeHvery",   voluntary   transfer   of   possession   from   one   person   to  7 

another.  8 

"Person"  includes  a  corporation  or  partnership  or  two  or  more  persons  9 

haA'ing  a  joint  or  common  interest.  10 


ClLiP.    155.]         GENERAL  PROVISIONS   REL.\TrV'E   TO   CORPORATIONS.  1629 

11  "Purchase"  includes  to  take  as  mortgagee  or  as  pledgee. 

12  "Purchaser"  includes  mortgagee  and  pledgee. 

13  "Shares",  a  share  or  shares  of  stock  in  a  corporation  organized  under 

14  the  laws  of  this  commonwealth  or  of  another  state  whose  laws  are  con- 

15  sistent  \\ith  said  sections. 

16  "State"  includes  state,  territory,  district  and  insular  possession  of 

17  the  United  States. 

18  "Transfer",  transfer  of  legal  title. 

19  "Title",  legal  title,  not  including  a  merely  equitable  or  beneficial 

20  owTiership  or  interest. 

21  "Value",  any  consideration  sufficient  to  support  a  simple  contract. 

22  An  antecedent  or  pre-existing  obligation,  whether  for  money  or  not, 

23  constitutes  value  if  a  certificate  is  taken  either  in  satisfaction  thereof  or 

24  as  security  therefor. 

25  (2)  A  thing  is  done  in  "good  faith"  within  the  meaning  of  said  sections 

26  when  it  is  in  fact  done  honestly,  whether  it  be  done  negligently  or  not. 

1  Section  27.     Title  to  a  certificate  and   to  the  shares  represented  ^^^(°/ 

2  thereby  shall  be  transferred  only —  isol'ls'll' 

3  (a)  By  delivery  of  the  certificate  endorsed  either  in  blank  or  to  a  speci-  1S29',  53|^§  4'. 

4  fied  person  by  the  person  appearing  by  the  certificate  to  be  the  owner  of  r.  s.'3s.'§  12- 

5  the  shares  represented  thereby;  or  ililfis.*" 

6  (b)  By  delivery  of  the  certificate  and  a  separate  document  containing  es.f  n*';'65!H. 

7  a  wTitten  assignment  of  the  certificate  or  a  power  of  attorney  to  sell,  Jgyg' 224' i  m' 

8  assign  or  transfer  the  same  or  the  shares  represented  thereby,  signed  JSZi' f-V  1 44 

9  by  the  person  appearing  by  the  certificate  to  be  the  owner  of  the  shares  p.  s.'ioe"'?  so;' 

10  represented  thereby.     Such  assignment  or  power  of  attorney  may  be  §66;  113,  §'13. 

11  either  in  blank  or  to  a  specified  person.  il^Iim; 

12  This  section  shall  be  applicable  although  the  charter  or  articles  of  |is;iV°.'§s9: 

13  organization  or  code  of  regulations  or  by-laws  of  the  corporation  issu-  ^i^  ^  ^*'  '^^' 

14  ing  the  certificate,  and  the  certificate  itself,  pro\'ide  that  the  shares  repre-  3?23'  423: 

15  sented  thereby  shall  be  transferable  only  on  the  books  of  the  corporation  i906. 463,'ii. ' 

16  or  shall  be  registered  by  a  registrar  or  transferred  by  a  transfer  agent.        §§  22!  15s'. 

1910,  171,  §§  1,  24.  150  Mass.  200.  193  Mass.  522. 

1914,  742.  |§  23,  199.  159  Mass.  64.  216  Mass.  330. 

12  Gray,  213,  227.  182  Mass.  555.  219  Mass.  405. 

8  Allen,  15.  190  Mass.  509.  234  Mass.  568. 
138  Mass.  240. 

1  Section  28.     Sections  twenty-four  to  forty-four,  inclusi\'e,  shall  not  Powers  of 

2  be  construed  as  enlarging  the  powers  of  an  infant  or  other  person  lack-  petents  and 

3  ing  full  legal  capacity,  or  of  a  trustee,  executor  or  administrator,  or  other  affected.'''^ 

4  fiduciary,  to  make  a  valid  endorsement,  assignment  or  power  of  attorney.  ^^^°'  ^''^'    ^' 

1  Section  29.     Sections  twenty-four  to  forty-four,  inclusi\-e,  shall  not  Rights  of 

2  be  construed  as  forbidding  a  corporation  —  i79s,  59.  §  s.' 

3  (a)  To  recognize  the  exclusive  right  of  a  person  registered  on  its  books  g'.  s.  es!  §  4! 

4  as  the  owner  of  shares  to  receive  di\-idends,  and  to  vote  as  such  owner;  or  p**s.'  fol,'  §  24; 

5  (6)  To  hold  liable  for  calls  and  assessments  a  person  registered  on  its  }ss4^22g 

6  books  as  the  owner  of  shares.  R-  l.  109,  §§  36, 37-,  123,  §  12. 

1903,  423;  437,  §§  28,  95.  1910,  171,  §§  3,  24. 

1906,  463,  II,  §§  41,  258,  1914,  742,  §§  23,  199. 

HI,  §§  22,  158. 

1  Section  30.     The  title  of  a  transferee  of  a  certificate  under  a  power  Title  by 

2  of  attorney  or  assignment  not  WTitten  upon  the  certificate,  and  the  title  have  priority 


1630 


GENERAL   PROVISIONS  RELATrVE  TO   CORPORATIONS.      [ChAP.    155. 


over  title  by 
power  of 
attornev,  etc. 
1910,  171,  §  4. 


Delivery  by 
one  having 
no  title. 
1910.  171,  §  5. 
211  Mass.  429. 
21B  Mass.  330. 


of  any  person  claiming  under  such  transferee,  shall  cease  and  determine  if,  3 

at  any  time  prior  to  the  surrender  of  the  certificate  to  the  corporation  4 

issuing  it,  another  person,  for  value  in  good  faith,  and  without  notice  of  the  5 

prior  transfer,  shall  purchase  and  obtain  delivery  of  such  certificate  with  6 

the  endorsement  of  the  person  appearing  by  the  certificate  to  be  the  owner  7 

thereof,  or  shall  purchase  and  obtain  delivery  of  such  certificate  and  the  8 

WTitten  assignment  or  power  of  attorney  of  such  person  though  contained  9 

in  a  separate  document.  10 

Section  31.     The  delivery  of  a  certificate  to  transfer  title  in  accord-  1 

ance  with  section  twenty-seven  shall  be  effectual,  except  as  proxided  in  2 

section  thirty-three,  though  made  by  one  ha^'ing  no  right  of  possession  3 

and  ha\-ing  no  authority  from  the  owner  of  the  certificate  or  from  the  4 

person  purporting  to  transfer  the  title.  5 


Endorsement 
procured  by 
fraud,  etc. 
1910,  171,  I  6. 


Section  32.     The  endorsement  of  a  certificate  by  the  person  appear-  1 

ing  by  the  certificate  to  be  the  owner  of  the  shares  represented  thereby  2 

shall  be  effectual,  except  as  pro\ided  in  the  following  section,  though  the  3 

endorser  or  transferor  —  4 

(a)  Was  induced  by  fraud,  duress  or  mistake  to  make  the  endorsement  5 
or  delivery;  or  6 

(b)  Has  revoked  the  delivery  of  the  certificate,  or  the  authority  given  7 
by  the  endorsement  or  delivery  of  the  certificate;  or  8 

(c)  Has  died  or  become  legally  incapacitated  after  the  endorsement,  9 
whether  before  or  after  the  delivery  of  the  certificate;  or  10 

((/)  Has  received  no  consideration.  11 


Rescission  of 
transfer. 
1910,  171,  §  7. 
216  Mass.  330. 


Effect  of 
rescission  on 
rights  of  pur- 
chaser for  value 
in  good  faith. 
1910,  171,  §  8. 


Section  33.  If  the  endorsement  or  delivery  of  a  certificate  (a)  was 
procured  by  fraud  or  duress,  or  (b)  was  made  under  such  mistake  as  to 
make  the  endorsement  or  delivery  inequitable;  or  if  the  delivery  of  a 
certificate  was  made  (c)  Tsithout  authority  from  the  o^^'ne^,  or  (d)  after  the 
o^\-ner's  death  or  legal  incapacity,  the  possession  of  the  certificate  may  be 
reclaimed  and  the  transfer  thereof  rescinded,  unless  — 

(1)  The  certificate  has  been  transferred  to  a  purchaser  for  value  in  7 
good  faith  lA-ithout  notice  of  any  facts  making  the  transfer  WTongful,  or    8 

(2)  The  injured  person  has  elected  to  waive  the  injury,  or  has  been  9 
guilty  of  laches  in  endeavoring  to  enforce  his  rights.  10 

Any  court  of  appropriate  jurisdiction  may  enforce  specifically  such  11 
right  to  reclaim  the  possession  of  the  certificate  or  to  rescind  the  transfer  12 
thereof  and,  pending  litigation,  may  enjoin  the  further  transfer  of  the  13 
certificate,  or  impound  it.  14 

Section  34.     Although  the  transfer  of  a  certificate  or  of  shares  rep-  1 

resented  thereby  has  been  rescinded  or  set  aside,  nevertheless,  if  the  2 

transferee  has  possession  of  the  certificate  or  of  a  new  certificate  rep-  .3 

resenting  part  or  the  whole  of  the  same  shares  of  stock,  a  subsequent  4 

transfer  of  such  certificate  by  the  transferee,  mediately  or  immediately,  5 

to  a  purchaser  for  value  in  good  faith,  \\'ithout  notice  of  any  facts  making  6 

the  transfer  ^^Tongful,  shall  give  such  purchaser  an  indefeasible  right  to  7 

the  certificate  and  the  shares  represented  thereby.  8 


transTer'^'^  SECTION  35.     The  dcfivcry  of  a  certificate  by  the  person  appearing  by  1 

i?,n°<,'^''  L°n  the  certificate  to  be  the  owner  thereof,  -n-ithout  the  endorsement  requisite  2 

220  Mass.  4S0.  '                                                           i      i           1          l  o 

224  Mass.  442.  for  thc  trausfcr  of  the  certificate  and  the  shares  represented  thereby,  but  3 


Chap.  155.]      general  provisions  relative  to  corporations.  1631 

4  with  intent  to  transfer  such  certificate  or  sliares  shall  impose  an  obligation, 

5  in  the  absence  of  an  agreement  to  the  contrary,  upon  the  person  so  de- 

6  livering,  to  complete  the  transfer  by  making  the  necessary  endorsement. 

7  The  transfer  shall  take  effect  as  of  the  time  when  the  endorsement  is 

8  actually  made.    This  obligation  mnj'  be  specifically  enforced. 

1  Section  36.     An  attempted  transfer  of  title  to  a  certificate  or  to  the  ESect  of 

2  shares  represented  thereby  without  delivery  of  the  certificate  shall  have  tranSe'"' 

3  the  effect  of  a  promise  to  transfer,  and  the  obligation,  if  any,  imposed  ^^'°'  '"'■  ^  '°- 

4  by  such  promise  shall  be  determined  by  the  law  governing  the  forma- 

5  tion  and  performance  of  contracts. 

1  Section  37.    A  person  who  for  value  transfers  a  certificate,  including  warranties. 

2  one  who  assigns  for  value  a  claim  secured  by  a  certificate,  unless  a  con-  ^  ^°'  ^  ^'  '  ^^" 

3  trary  intention  appears,  warrants  — 

4  (a)  That  the  certificate  is  genuine; 

5  (6)  That  he  has  a  legal  right  to  transfer  it;  and 

6  (c)  That  he  has  no  knowledge  of  any  fact  which  would  impair  the 

7  validity  of  the  certificate. 

8  In  the  case  of  an  assignment  of  a  claim  secured  by  a  certificate,  the 

9  liabihty  of  the  assignor  upon  such  warranty  shall  not  exceed  the  amount 
10  of  the  claim. 

1  Section  38.     A  mortgagee,  pledgee,  or  other  holder  for  security  of  a  warranties  by 

2  certificate  who  in  good  faith  demands  or  receives  payment  of  the  debt  for  i9io,^i7rH2. 

3  which  such  certificate  is  security,  whether  from  a  party  to  a  draft  drawn 

4  for  such  debt,  or  from  any  other  person,  shall  not  by  so  doing  be  deemed 

5  to  represent  or  to  warrant  the  genuineness  of  such  certificat-e,  or  the 

6  value  of  the  shar«s  represented  thereby. 

1  Section  39.     Except  where  a  certificate  is  lost  or  destroyed,  a  cor-  New  certia- 

2  poration  shall  not  be  compelled  to  issue  a  new  certificate  for  the  stock  1910!  ivi,  §  13. 

3  until  the  old  certificate  is  surrendered  to  it.  222  Mass.  27. 

1  Section  40.     There  shall  be  no  lien  in  fa\or  of  a  corporation  upon  the  Lien  or  re- 

2  shares  represented  by  a  certificate  issued  by  such  corporation,  and  there  stat'ed°on'"'  ^ 

3  shall  be  no  restriction  upon  the  transfer  of  shares  so  represented  by  virtue  ^iVa  nt  §  15. 

4  of  any  by-laws  of  such  corporation,  or  other^nse,  unless  the  right  of  the 

5  corporation  to  such  lien  or  the  restriction  is  stated  upon  the  certificate. 

1  Section  41.     The  alteration  of  a  certificate,  whether  fraudulent  or  not  Efrect  of 

2  and  by  whomsoever  made,  shall  not  deprive  the  owner  of  his  title  to  the  isio,  i7i,  §  in. 

3  cejtificate  and  the  shares  originally  represented  thereby,  and  the  transfer 

4  of  such  a  certificate  shall  con\ey  to  the  transferee  a  good  title  to  such 

5  certificate  iind  to  the  shares  originally  represented  thereby. 

1  Section  42.     If  a  certificate  has  been  lost  or  destroyed,  a  court  of  J^t"i^"','are 

2  competent  iurisdiction  mav  order  the  issue  of  a  new  certificate  therefor  of  one  lost  or 

„  .  »  '     .  ,.  ,  11-,        destroyed. 

6  on  seT\ice  01  process  upon  the  corporation  and  on  reasonable  notice  by  isoo,  403, 11, 

4  publication,  and  in  any  other  way  which  the  court  may  direct,  to  all  per-  §§  24, 1.5s 

5  sons  interested,  and  upon  satisfactory  proof  of  such  loss  or  destruction  ^^'°'  "^'  ^  ^^' 

6  and  upon  the  gi\ing  of  a  bond  with  sufficient  surety  to  be  appro\-ed  by 

7  the  court  to  protect  the  corporation  or  any  persons  injured  by  the  issue 


1632 


GENERAL   PROVISIONS   RELATIVE   TO   CORPORATIONS.      [ChAP.    155. 


of  the  new  certificate  from  any  liability  or  expense,  which  it  or  they  may  8 
incur  by  reason  of  the  original  certificate  remaining  outstanding.  The  9 
court  may  also  in  its  discretion  order  the  payment  of  the  corporation's  10 
reasonable  costs  and  counsel  fees.  11 

The  issue  of  a  new  certificate  under  an  order  of  the  court  as  pro\ided  12 
in  this  section,  shall  not  relieve  the  corporation  from  liability  in  damages  13 
to  a  person  to  whom  the  original  certificate  has  been  or  shall  be  trans-  14 
ferred  for  value  without  notice  of  the  proceedings  or  of  the  issuance  of  15 
the  new  certificate.  16 

Section  thirty-four  of  chapter  one  hundred  and  fifty-six  shall  apply  to  17 
railroads  and  street  railways.  18 


Endorsement. 
1910,  171,  §20. 


Section  43.  A  certificate  shall  be  deemed  to  be  endorsed  when  an 
assignment  or  a  power  of  attorney  to  sell,  assign  or  transfer  the  certificate 
or  the  shares  represented  thereby  is  wTitten  on  the  certificate  and  signed 
by  the  person  appearing  by  the  certificate  to  be  the  owner  of  the  shares 
represented  thereby,  or  when  the  signature  of  such  person  is  WTitten 
without  more  upon  the  back  of  the  certificate.  In  either  of  such  cases 
a  certificate  shall  be  deemed  to  be  endorsed  though  it  has  not  been 
delivered. 


who  deemed 
owner  of 
certificate. 
1910,  171.  §21. 


Section  44.     The  person  to  whom  a  certificate  was  originally  issued  1 

shall  be  deemed  to  be  the  person  appearing  by  the  certificate  to  be  the  2 

owner  thereof,  and  of  the  shares  represented  thereby,  until  and  unless  3 

he  endorses  the  certificate  to  another  specified  person,  and  thereupon  4 

such  other  specified  person  shall  be  deemed  to  be  the  person  appearing  5 

by  the  certificate  to  be  the  owner  thereof  until  and  unless  he  also  endorses  6 

the  certificate  to  another  specified  person.     Subsequent  special  endorse-  7 

ments  mav  be  made  with  like  effect.  8 


Transfer  of  in- 

stalment stock. 

1903, 

423.  §  1; 

437.: 

§28. 

New  certifi- 

cates 

Pledge. 

1808. 

65.  §  4. 

1829, 

S3,  §  4. 

1833, 

187,  §  8. 

R.  S. 

38,  §  12: 

39, §  52. 

1838, 

98.  §  3. 

1846, 

45. 

G.  S. 

60,  §  13; 

63,  §  11;  68, 

§13. 

1864, 

229,  §  10. 

1870, 

224.  §  26. 

1871, 

381,  §  10. 

Section  45.  Stock  shall  not  be  transferred  on  the  books  of  a  cor- 
poration if  any  instalments  thereon  remain  overdue  and  unpaid. 

1914,  742,  §§  23,  199. 

Section  46.  A  transferee  under  a  transfer  described  in  section 
twenty-seven,  upon  delivery  of  the  former  certificate  to  the  treasurer  of 
the  corporation,  shall  be  entitled  to  receive  a  new  certificate.  A  pledgee 
of  stock  transferred  as  collateral  security  shall  be  entitled  to  a  new  cer- 
tificate if  the  instrument  of  transfer  substantially  describes  the  debt  or 
duty  which  is  intended  to  be  secured  thereby.  Such  new  certificate  shall 
ex-press  on  its  face  that  it  is  held  as  collateral  security,  and  the  name  of 
the  pledgor  shall  be  stated  thereon,  who  alone  shall  be  liable  as  a  stock- 
holder, and  entitled  to  vote  thereon 

[30; 


1874,372,  §44. 


P.  S,  105.  §  25;  106, 
112,  §  50;   113,  §  13. 
R.  L.  109,  §  38;  110,  §  2S; 
111,  §  59;  112,  §  18. 
1903,  423;  437,  §§28.  95. 
1906,  463,  II.  §§  41,  258, 
III.  §§  22,  158. 
1914,  742,  §§  23,  199. 


11  Gush.  183. 

12  Gr.iy,  213. 
3  Allen,  342. 
8  Allen,  15. 
10  Allen.  505. 
138  Mass.  240. 
150  Mass.  200. 
154  Mass.  172. 


176  Mass.  442. 
182  Mass.  555. 
193  Mass.  522. 
203  Mass.  480. 
206  Mass.  71. 
219  Mass.  405. 


List  of  un- 
claimed di\-i- 
dends  to  be 
published. 
1837,  56. 
G.  S.  68.  §  19. 


UNCLAIMED   DIVIDENDS. 


Section  47.  Every  corporation  shall,  once  in  every  five  years,  pub- 
lish three  times  successively  in  a  newspaper  in  Boston,  and  also  in  a 
newspaper  in  the  county  where  the  corporation  is  established,  a  list  of 


Chap.  155.]      general  peovisions  relative  to  corporations.'  1633 

4  all  dividends  which  have  remained  unclaimed  for  two  years  or  more  and  ^  |^  1°^  §  27^ 

5  the  names  of  the  persons  to  whose  credit  such  dividends  stand.  \i°S;.*SJ' 

ss  oJ,  95. 
1906,  463.  II,  §§  44,  25S,  III,  §§  25,  158.  1914,  742,  §§  62,  199. 

FALSE   REPORTS   OR   STATEMENTS   CONCERNING   CORPORATIONS. 

1  Section  48.     Whoever  knowingly  makes,  executes,  files  or  publishes  Penalty  for 

2  any  report  or  statement  required  by  law  to  be  made,  executed,  filed  or  is66,^252';'§™*' 

3  published  by  a  corporation  in  this  commonwealth,  whether  such  cor-  ^sel^llvfll. 

4  poration  is  organized  under  the  laws  of  this  commonwealth  or  elsewhere,  Pg|^  i^u  ^  ^^°' 

5  or  whoever  causes  the  same  to  be  done,  which  report  or  statement  is  false  Ll^^  .,o' 

6  in  any  material  representation,  shall  be  punished  by  a  fine  of  not  more  §  loi. "  ' 

7  than  five  thousand  dollars  or  by  imprisonment  for  not  more  than  three  §  ioi. 

8  years,  or  both.  i907, 576,  §  no.  1911, 751,  iv,§  i9.  1914, 661,  §i. 

1  Section  49.     Whoever  knowingly  makes,  executes  or  publishes  any  statement 

2  report  or  statement  required  by  the  law  of  another  state  or  country  to  fo?eign1aw! 

3  be  made,  executed,  or  published  by  a  corporation,  or  whoever  causes  the  ^^^*'  ''^^'  ^  "• 

4  same  to  be  done,  within  this  commonwealth,  which  report  or  statement  is 

5  false  in  any  material  representation,  shall  be  punished  by  a  fine  of  not 

6  more  than  five  thousand  dollars  or  by  imprisonment  for  not  more  than 

7  three  years,  or  both. 

DISSOLUTION   of   CORPORATIONS. 

1  Section  50.     A  corporation  which  desires  to  close  its  affairs  may,  Dissolution  of 

2  unless  otherwise  provided  in  the  agreement  of  association,  by  the  vote  ism?^,'""*' 

3  of  a  majority  of  its  members  if  it  has  no  capital  stock,  otherwise  by  a  g.  s.  es.  §  35. 

4  vote  of  a  majority  of  all  its  stock,  or,  if  two  or  more  classes  of  stock  r.  l.'ito, Vs2. 

5  have  been  issued,  of  a  majority  of  each  class  outstanding  and  entitled  ss^lf^gj' 

6  to  vote,  authorize  a  petition  for  its  dissolution  to  be  filed  in  the  supreme  Iflj^f ;J'' 

7  judicial  or  superior  court  setting  forth  in  substance  the  grounds  of  the  iii,  §§'i3s,'i58. 

8  application;  and  the  court,  after  notice  to  parties  interested  and  a  hear-  §§  si,  199. 

9  ing,  may  decree  a  dissolution  of  the  corporation.    A  corporation  so  dis-  §§\^7,^:^8.' 

10  solved  shall  be  held  to  be  extinct  in  all  respects  as  if  its  corporate  exist-  y^cray^  113, 

11  ence  had  expired  by  the  limitation  of  its  charter.  ^93. 

9  Gray,  34,  99  Mass.  267.  219  ^taa8.  95. 

13  Allen,  497.  119  Mass.  447.  227  Mass.  551. 

1  Section  51.     Every  corporation  whose  charter  expires  by  its  own  Continuation 

2  limitation  or  is  annulled  by  forfeiture  or  otherwise,  or  whose  corporate  to'^ciosr*'^" 

3  existence  for  other  purposes  is  terminated  in  any  other  manner,  shall  i8i™43.' 

4  nevertheless  be  continued  as  a  body  corporate  for  three  years  after  the  g.' f:  Is,  |  se. 

5  time  when  it  would  have  been  so  dissolved  for  the  purpose  of  prosecuting  ^  ^  '^^  §  •*ij 

6  and  defending  suits  by  or  against  it  and  of  enabling  it  gradually  to  settle  J?°|a*^J' 

7  and  close  its  aft'airs,  to  dispose  of  and  convey  its  property  and  to  divide  i9oii,'4o.i  ii, 

8  its  capital  stock,  but  not  for  the  purpose  of  continuing  the  business  iii,i§'i39,'i58. 

9  for  which  it  was  established;  provided,  that  the  corporate  existence  of  ll'gs,  m. 

10  such  a  corporation,  for  the  purposes  of  any  suit  brought  by  or  against  lH^Ma^ss^Ms. 

11  it  within  said  period  of  three  years,  shall  continue  beyond  said  period  j^pj^j^  gJJ- 

12  for  a  further  period  of  sixty  days  after  final  judgment  in  the  suit.  123  Mass.  32. 

161  Mass.  443.  209  Mass.  105.  228  Mass.  484. 

1  Section  52.     If  the  charter  of  the  corporation  expires  or  is  annulled,  f^^'I'^^j- 

2  or  if  the  corporation  is  dissolved  as  provided  in  section  fifty,  or  if  its  cor-  R-  s.'44, 

3  porate  existence  for  other  purposes  is  terminated  in  any  other  manner,  is52',  55,  §  2. 


1634 


GENERAL   PROVISIONS   RELATIVE   TO   CORPORATIONS.      [ChAP.    155. 


G.  S.  68,  §§  37, 

38. 

P.  S.  105, 

§§  42,  43. 

1S84,  203. 

R.  L.  109, 

§54. 

1903,  437, 

§§  53,  95. 

1905,  15B. 

1906,  463,  II, 
«  228,  258, 
HI,  §§  HO, 
158. 

1914,  742, 
§§  S6,  199. 
1919,  333, 
§§  12,  13. 


the  supreme  judicial  or  superior  court,  upon  application  of  a  creditor,  4 

stockholder  or  member,  shall  have  jurisdiction  in  equity  to  appoint  one  or  5 

more  receivers  to  take  charge  of  its  estate  and  effects  and  to  collect  the  6 

debts  and  property  due  and  belonging  to  it,  with  power  to  prosecute  7 

and  defend  suits  in  its  name  or  otherwise,  to  appoint  agents  under  them  8 

and  to  do  all  other  acts  which  might  be  done  by  such  corporation,  if  in  9 

being,  which  may  be  necessary  for  the  final  settlement  of  its  unfinished  10 

business.    The  powers  of  such  receivers  and  the  existence  of  the  corpo-  11 

ration  may  be  continued  as  long  as  the  court  finds  necessary  for  said  12 

purposes.                                            1920,2.                                         123  Mass.  32.  13 
157  Mass.  77.                               209  Mass.  105.                               227  Mass.  551. 


Receivers  to 
pay  debts  and 
distribute 
surplus. 
1833,  145. 
R.  S.  44,  §  10. 
1852,  55,  §  2. 
G.  S.  68,  §  39. 
P.  S.  105,  §  44. 
R.  L.  109,  §  55. 
1903,  437, 
§§54,95. 
1906,  463.  II, 
§§  229,  258, 
HI,  §§  141, 
158. 


Section  53.     The  receivers  shall  pay  all  debts  due  from  the  corpora-  1 

tion  if  the  funds  in  their  hands  are  sufficient  therefor;    and  if  they  are  2 

not,  they  shall  distribute  them  ratably  among  the  creditors  who  prove  3 

their  debts  in  the  manner  directed  by  any  decree  of  the  court  for  that  4 

purpose.    If  there  is  a  balance  remaining  after  the  payment  of  the  debts,  5 

the  receivers  shall  distribute  and  pay  it  to  those  who  are  justly  entitled  6 

thereto  as  having  been  stockholders  or  members  of  the  corporation,  or  7 

their  legal  representatives.  8 


1914,  742,  §§87,  199. 


1  Gray,  382. 


219  Mass.  95. 


Surrender  of 
certificate  of 
incorporation. 
1898,  502. 
R.  L.  109,  §  56. 
1906,  463,  II, 
§§  230,  258, 
in.  §§  142, 
158. 

1919,  350, 
§§  45,  46. 
219  Mass.  95. 


Section  54.  If  a  petition,  signed  and  sworn  to  by  a  majority  in  in-  1 
terest  of  the  stockholders  of  a  railroad  or  street  railway  company  organ-  2 
ized  under  general  laws  or  by  a  majority  in  number  or  interest  of  the  3 
members  of  any  other  corporation  organized  under  the  general  laws,  4 
except  a  corporation  created  for  the  purpose  of  business  or  profit  having  5 
a  capital  stock  divided  into  shares  or  which  is  under  the  supervision  of  6 
the  commissioner  of  insurance,  has,  with  the  certificate  of  incorporation,  7 
been  filed  in  the  office  of  the  state  secretary,  stating  that  such  members  8 
desire  to  surrender  the  certificate  of  incorporation  and  to  have  the  cor-  9 
poration  dissolved  and  giving  their  reasons  therefor,  the  state  secretary,  if  10 
he  considers  such  reasons  sufficient,  shall  require  the  petitioners  to  publish  1 1 
a  notice  in  one  or  more  newspapers  in  the  county  where  the  corporation  12 
is  located  stating  that,  for  reasons  which  appear  to  him  sufficient,  the  13 
certificate  of  incorporation  of  the  corporation  therein  named  is  annulled.  14 
Upon  the  filing  by  the  petitioner  with  the  state  secretary  of  a  copy  of  15 
each  newspaper  in  which  the  notice  of  dissolution  was  ordered  to  be  pub-  16 
lished,  the  corporation  shall  be  dissolved,  subject  to  the  three  preceding  17 
sections.  18 


Returns  to 
secretary  of 
dissolution. 
1880,  157. 
P.  S.  105,  §  45. 
R.  L.  109,  §  57. 
1903,  437, 
§§  55,  95. 


Section  55.     If  a  corporation  is  dissolved  or  annulled,  the  clerk  of  1 

the  court  in  which  the  decree  therefor  is  entered  shall  forthwith  make  2 

return  thereof  to  the  state  secretary,  giving  the  name  of  the  corporation  3 

and  the  date  upon  which  such  decree  was  entered.  4 

1906,  463,  II,  §§  231,  258,  III,  §§  143,  158.  1914,  742,  §§  88,  199. 


REFERENCES. 

Criminal  provisions  as  to  fraudulent  issue,  transfer  and  record  of  ownership  of 
stock,  etc..  Chap.  266,  §§  65-68. 

Power  of  directors  to  issue  new  stock  certificate,  Chaps.  156,  §  34;  158,  §  22. 


Ch.^.p.  156.] 


BUSINESS  CORPORATIONS. 


1635 


CHAPTER    156 


BUSINESS   CORPORATIONS. 


Sect. 

general  provisions. 

1.  Definitions. 

2.  Application. 

3.  Adoption  by  existing  corporations. 

4.  Corporate  powers. 

5.  Holding  stock  in  certain  public  service 

companies  regulated. 

ORGANIZATION. 

6.  Organization  under  general  laws. 

7.  Duration  of  real  estate  corporation. 

8.  First  meeting  of  incorporators.    Notice. 

9.  Organization,  election  of  officers. 

10.  Completion  of  organization.    Articles  of 

organization;  liability  for  false  state- 
ment. 

11.  Filing  of  articles  of  organization,  etc. 

12.  Certificate  of  incorporation. 

13.  By-laws. 

14.  Classes  of  stock.     Stock  without  par 

value. 

15.  For  what  stock  may  be  issued. 

16.  Issue  of  authorized  stock  subsequent  to 

original  issue. 

17.  Validation  of  invalid  issue. 

18.  Payment  of  subscriptions. 

19.  Sale  of  rights  of  delinquent  subscriber. 

20.  Sale  of  stock  for  unpaid  instalments,  etc. 

OFFICERS. 

21.  Officers. 

22.  Choice  of  officers  and  agents. 

23.  Manufacturing  corporation   may   pro- 

vide for  election  of  directors  by  em- 
ployees. 

24.  Certificate  of  change  in  officers. 

25.  Powers  of  directors. 

26.  Executive  committee. 

27.  Meetings  of  directors. 


28. 
29. 


30. 


STOCKHOLDERS. 

Meetings  of  stockholders. 

Certificate  of  change  of  date  of  annual 

meeting. 
Special  meetings. 


Sect. 

31.  Voting  rights  of  corporations. 

32.  Voting  powers  of  stockholders.    Proxies. 

STOCK. 

33.  Stock  certificates. 

34.  Lost  certificates. 

LIABILITY  OF  STOCKHOLDERS,   OFFICERS  AND 
DII»;CTOKS. 

35.  Liability  of  stockholders. 

36.  Liability   of   president,    treasurer   and 

directors. 

37.  Liability  of  directors. 

38.  Enforcement  of  liability  of  stockholders, 

officers,  etc. 

39.  Procedure. 

40.  Apportionment  of  assessment. 

AMENDMENTS    AFTER    ORGANIZATION. 

41.  Amendments  requiring  majority  vote. 

42.  Amendments   requiring   two  thirds   or 

larger  vote. 

43.  Articles  of  amendment. 

44.  Increase  of  capital  stock. 

45.  Reduction  of  capital  stock. 

46.  Remedy  of  minority  stockholder. 

ANNUAL    REPORTS. 

47.  Form  of  annual  report  of  condition. 

48.  Filing  of  annual  report. 

49.  Verification  by  auditor. 

50.  Penalty  for  failure  to  file  report  of  con- 

dition. 

RECEIVERS. 

51.  Receivers,  appointment,  etc. 

ENFORCEMENT    OF    PENALTIES. 

52.  Enforcement  of  penalties. 

ORGANIZATION  AND    FILING    FEES. 

53.  Fees  for  organization  papers. 

54.  Fees  for  increase  of  capital. 

55.  Fees   for   all   other   certificates,    state- 

ments and  reports. 


GENERAL  PROVISIONS. 


1  Section  1 .     In  this  chapter,  unless  a  contrary  intention  appears,  "  cor-  Definitions. 

2  poration"  shall  mean  a  corporation  to  which,  under  section  two,  this  §^52,^53.' 


3  chapter  applies,  and  " commissioner' 

4  corporations  and  taxation. 


shall  mean  the  commissioner  of 


1  Section  2.     Except  as  expressly  made  applicable  by  reference  in  sub-  Application. 

2  sequent  chapters,  this  chapter  shall  not  apply  to  corporations  organized  §:  a  eo,  |  \'. 

3  for  the  purpose  of  carrying  on  the  business  of  a  bank,  savings  bank,  co-  ^j'^sf^/es. 


1636 


BUSINESS  CORPORATIONS. 


[Chap.  156. 


R.  L.  no,  §2. 

1903,  437, 
§§  1,  95. 
1910,  385. 
1912,  586. 
1917,224. 
192  Mass.  428. 
214  Mass.  79. 


Agricultural 
and  horticul- 
tural corpora- 
tions for 
mutual  help. 


operative  bank,  trust  company,  credit  union,  surety  or  indemnity  com-  4 
pany,  or  safe  deposit  company,  or  for  the  purpose  of  carrying  on  within  5 
the  commonwealth  the  business  of  an  insurance  company,  railroad,  elec-  6 
trie  railroad,  street  railway  or  trolleymotor  company,  telegraph  or  tele-  7 
phone  company,  gas  or  electric  light,  heat  or  power  company,  canal,  8 
aqueduct  or  water  company,  cemetery  or  crematory  company,  or  to  9 
any  other  corporations  which  now  have  or  may  hereafter  have  the  right  10 
to  take  land  within  the  commonwealth  by  eminent  domain  or  to  exercise  11 
franchises  in  public  ways  granted  by  the  commonwealth  or  by  any  12 
county,  city  or  town.  It  shall  apply  to  all  other  domestic  corporations  13 
having  a  capital  stock  and  heretofore  or  hereafter  established  either  by  14 
general  or  special  law  for  the  purpose  of  carrying  on  business  for  profit  15 
except  as  provided  in  chapter  one  hundred  and  fifty-seven  and  except  so  16 
far  as  such  application  may  be  inconsistent  with  provisions  still  in  force  17 
of  any  special  acts  of  incorporation,  enacted  before  March  eleventh,  eight-  18 
een  hundred  and  thirty-one,  and  not  subject  to  amendment,  alteration  19 
or  repeal  by  the  general  court,  or  with  provisions  of  any  special  acts  of  20 
incorporation  hereafter  enacted ;  and  tliis  chapter  shall  govern  the  amount  21 
of  real  or  personal  estate  which  any  corporation  subject  to  it  may  hold,  22 
and  the  right  to  increase  or  decrease  its  capital  stock,  notwithstanding  23 
the  provisions  of  any  special  act  of  incorporation,  except  in  the  case  24 
of  corporations  empowered  to  manufacture,  store,  transmit,  sell  or  dis-  25 
tribute  power.  _  26 

It  shall  also  apply  to  agricultural  or  horticultural  organizations,  in-  27 
stituted  for  purposes  of  mutual  help,  which  corporations,  if  formed  for  28 
the  piupose  of  doing  business  at  cost  for  the  benefit  of  their  members,  29 
shall  not  be  required  to  have  capital  stock.  30 


Adoption  by 
existing  cor- 
porations. 
1829,  53,  §  13. 
R.  S.  38, 
§§  26,  27. 
G.  S.  60, 
§§28,29. 
1870,224,  §65. 
1874,349,  §  1, 
cl.  4. 

P.  S.  106,  §4. 
R.  L.  110.  §3. 
1903.  437, 
§§2,95. 
1910,  353. 


Section  3.     Corporations  which  would  otherwise  be  within  the  appli-  1 

cation  of  this  chapter,  as  defined  in  section  two,  but  which  were  created  2 

before  March  eleventh,  eighteen  hundred  and  thirty-one,  by  any  special  3 

act  not  subject  to  amendment,  alteration  or  repeal  by  the  general  court,  4 

may,  at  a  legal  meeting  of  the  stockholders  duly  called  therefor,  by  vote  5 

of  two  thirds  of  each  class  of  stock  outstanding  and  entitled  to  vote,  adopt  6 

the  provisions  of  this  chapter  and  all  provisions  of  chapter  one  hundred  7 

and  fifty-five  applicable  to  corporations  subject  to  this  chapter.     A  copy  8 

of  such  vote,  signed  and  sworn  to  by  the  president,  treasurer  and  a  9 

majority  of  the  directors,  shall  be  submitted  to  and  examined  by  the  10 

commissioner.     If  the  commissioner  finds  that  it  conforms  to  the  require-  1 1 

ments  of  law,  he  shall  endorse  his  approval  thereon,  and,  upon  payment  12 

of  the  fee  provided  in  section  fifty-five,  it  shall  be  filed  in  the  office  of  the  13 

state  secretary,  who  shall  cause  the  same  and  the  endorsement  thereon  14 

to  be  recorded;   and  thereupon  such  corporation  with  its  members  and  15 

officers  shall  be  entitled  to  all  the  rights,  privileges  and  immunities  and  16 

be  subject  to  all  the  liabilities  set  forth  in  this  chapter  and  in  chapter  one  17 

hundred  and  fifty-five,  and  no  stockliolder  in  such  corporation  shall  be  IS 

liable  for  debts  of  the  corporation  contracted  after  the  recording  of  such  19 

vote  except  for  the  causes  and  in  the  manner  provided  in  tiiis  chapter.  20 


Corporate 
powers. 
1851,  133. 
1855,478,5  1. 
1857,  24. 


Section  4.     In  addition  to  the  powers  and  privileges  given  by  section  1 

six  of  chapter  one  hundred  and  fifty-five,  every  corporation  shall  have  2 

the  following  powers  and  privileges:  3 

G.  S.  61,  §  7._  f.  S.ipS,  §  7;  1903,  437,  §§  4, 


1870,  224,  §  31. 

1871,  110,  §3. 
1877,07. 


106,  §§  36,  50. 
R.  L.  109,  §  7; 
110,  §§33,46. 


els.  (a),  (c),  (/),  to),  95. 
131  Mass.  258. 
182  Mass.  147. 


Chap.  156.]  business  corporations.  1637 

4  (a)  To  have  perpetual  succession  in  its  corporate  name,  unless  a  period 

5  for  its  duration  is  limited  by  any  general  or  special  law. 

6  (b)  Except  as  provided  in  section  two,  to  have  a  capital  stock  to  such 

7  an  amount  as  may  be  fixed,  as  provided  in  this  chapter,  in  its  agreement 

8  of  association  or  articles  of  organization  or  of  amendment. 

9  (c)  To  hold,  purchase,  convey,  mortgage  or  lease  within  or  without  |Q''*^''|g7 

10  this  commonwealth  such  real  or  personal  property  as  the  piu-poses  of  the  i4i  Mass.  590. 

1 1  corporation  may  require. 

145  Mass.  261.  150  Mass.  317.  157  Mass.  37. 

147  Mass.  224.  155  Mass.  554.  168  Mass.  S3. 

12  (d)  To  make  contracts,  incur  liabilities  and  borrow  money  on  its  credit  }l\  M'^s.  sis. 

1.3    and  for  its  use.  131  Mass.  258.  150  Mass.  140.  167  Mass.  161. 

1  Section  5.     No  corporation,  unless  authorized  by  a  special  act  still  in  Holding  stock 

2  force,  shall  purchase,  acquire,  take  or  hold,  directly  or  indirectly,  more  JJJibUc  sen-ice 

3  than  ten  per  cent  of  the  total  capital  stock  of  any  domestic  corporation  reg^fated^ 

4  authorized  to  carry  on  witliin  the  commonwealth  the  business  of  a  rail-  ^^^^'  ^^^* 

5  road,  street  railway,  electric  railroad,  elevated  railway,  troUeymotor,  gas 

6  or  electric  light,  heat  or  power  company. 

0RG.USriZ.\TI0N. 

1  Section  6.     Three  or  more  persons  may  associate  themselves  by  WTit-  Organization 

2  ten  agreement  of  association  with  the  intention  of  forming  a  corporation  laws. 

3  under  general  laws  for  any  lawfiil  purpose  not  excluded  by  section  two.  §§  1-3.   ' 

4  The  agreement  of  association  shall  state :  iss2, 9. 

1855,  68,  §  1.  1875,  177,  §  3.  1903,  437,  §§  7,  8,  95. 

G.  S.  61,  §§  1,  2.  1878,  86,  §  1.  1906,  286. 

1860, 128,  §  1.  1879,  275,  §§  1,  4.  1912,  595. 

1862,  182.  P.  S.  105,  §  16;  106,  §|  6-8,  1914,  598,  §  24. 

1866,  187,  §  1;  290,  §  2.  10.  13-16,  31;  107,  §  1.  1918,  257,  §  363. 

1867,131.  1888,116,  1919,5. 

1870,224,  §§  1,2, 4.  7.  1894,500.  1920, 2;  349,  §  1. 

1871,  110,  §1.  1898,  503,  §2.  11  Gray,  139. 

1872,  244.  1899,  199,  §  1.  12  Allen,  273,  362. 

1873,  37,  §11.  R.  L.  109,  §  18;  110,  98  Mass.  98. 

1874,  165;  295,  §  1.  5§  4-6,  8,  11-15.  101  Mass.  381,  385. 

5  (a)  That  the  subscribers  thereto  associate  themselves  with  the  inten- 

6  tion  of  forming  a  corporation. 

7  (&)  The  corporate  name  assumed.  »« -"^i^s^-  *36. 

8  (c)  The  location  of  the  principal  office  of  the  corporation  in  the  com- 

9  monwealth,  and  elsewhere  in  the  case  of  corporations  organized  to  do 

10  business  wholly  outside  the  commonwealth. 

11  (d)  The  purposes  for  which  the  corporation  is  formed  and  the  nature  9- Mass.  494. 

12  of  the  business  to  be  transacted. 

13  (c)  If  only  shares  with  par  value  are  to  be  issued,  the  total  amount  of  the 

14  capital  stock  of  the  corporation,  which  shall  not  be  less  than  one  thousand 
1.5  dollars,  to  be  authorized,  and  the  number  of  shares  into  wliich  the  capital 

16  stock  is  to  be  divided,  and  the  par  value  of  the  shares,  which  shall  not  be 

17  less  than  five  dollars,  or,  in  lieu  thereof,  if  any  shares  without  par  value 

18  are  to  be  issued,  the  number  of  shares  without  par  value  to  be  authorized, 

19  which  shall  not  be  less  than  ten,  and  the  number  of  shares  liaving  par 

20  value  to  be  authorized,  if  any,  and  the  par  value  thereof,  which  shall 

21  not  be  less  than  five  dollars. 

22  (/)  The  restrictions,  if  any,  imposed  upon  the  transfer  of  shares.  }*|  ^\^^-  Hf 

179  Mass.  169.        181  Mass.  476.        199  Mass.  371.       210  Mass.  172.        219  Mass.  405. 

23  (g)  If  there  are  to  be  two  or  more  classes  of  stock,  a  description  of  the 

24  different  classes  and  a  statement  of  the  terms  on  which  they  are  to  be 

25  created  and  of  the  method  of  voting  thereon. 


1638 


BUSINESS   CORPORATIONS. 


{Chap.  156. 


(h)  Any  other  lawful  provisions  for  the  conduct  and  regulation  of  the  26 

business  of  the  corporation,  for  its  voluntary  dissolution,  or  for  limiting,  27 

defining  or  regulating  the  powers  of  the  corporation,  or  of  its  directors  or  28 

stockholders,  or  of  any  class  of  stockholders.  29 

(i)  The  subscriber  or  subscribers  by  whom  the  first  meeting  of  the  30 

incorporators  shall  be  called.  31 

(j)  The  names  and  residences  of  tlie  incorporators  and  the  amount  of  32 

stock  subscribed  for  by  each.  33 

re"Sta'te°^  Section  7.     The  agreement  of  association  of  any  corporation  formed  1 

i9i2°M5°"       ^°^  *^^^  purpose  of  acquiring,  holding,  managing,  improving,  leasing,  2 

1914!  698'  §  24.  buying  and  selling  real  estate,  except  a  corporation  formed  for  the  pur-  3 

pose  of  owning  forest  land  classified  under  chapter  sixty-one,  shall  state  4 

the  term  of  duration  of  the  corporation,  which  shall  not  exceed  fifty  years.  5 


First  meetinK 
of  incorpora- 
tors.    Notice. 
1855,478,  §2. 
G.S.61,  §3; 
68,  §  4. 
1866,290,  §4. 
1870,224,  I  9. 
P.  S.  105,  §  10; 
106,  §  18. 
R.  L.  109,  §  14; 
110.  §17. 
1903,  437, 
§§  9,  95. 

1918,  257, 
S347. 

1919,  5. 

1920,  2. 

16  Mass.  94. 
11  Gush.  369. 
98  Mass.  98. 
101  M.as3.  385. 

129  Mass.  540. 

130  Mass.  264. 
146  Mass.  482. 
2  Op.  A.  G.  496. 


Section  8.  The  first  meeting  of  the  incorporators  shall  be  called  by  1 
a  notice  signed  by  such  subscriber  to  the  agreement  of  association  as  may  2 
be  designated  therein  or  by  a  majority  of  the  subscribers  to  such  agree-  3 
ment;  and  such  notice  shall  state  the  time,  place  and  purposes  of  the  4 
meeting,  which  shall  be  held  within  the  commonwealth.  A  copy  of  such  5 
notice  shall,  seven  days  at  least  before  the  day  appointed  for  the  meet-  6 
ing,  be  given  to  each  incorporator  or  left  at  his  residence  or  usual  place  7 
of  business,  or  deposited  in  the  post  office,  postage  prepaid,  and  addressed  8 
to  him  at  his  residence  or  usual  place  of  business,  and  another  copy  9 
thereof,  and  an  affidavit  of  one  of  the  signers  that  the  notice  has  been  10 
duly  served,  shall  be  recorded  with  the  records  of  the  corporation.  If  11 
all  of  the  incorporators  shall  in  writing,  upon  the  agreement  of  associa-  12 
tion,  waive  such  notice  and  fix  the  time  and  place  of  the  meeting,  no  13 
notice  shall  be  required.  14 


Organization, 
election  of 
officers. 
1851,  133,  §4. 
G.  8.61.  §5. 
1870,224,  §  10. 
P.  S.  100,  §  20. 
R.  L.  110,  §  19. 
1903,  437, 
§§  10,  95. 
1918,257, 
§348. 
1919.5. 
1920.2. 
15  Gray,  211. 
117  Mass.  478. 


Section  9.     At  the  first  meeting  of  a  corporation  organized  under  1 

general  law  or  created  by  special  act,  or  at  any  adjournment  thereof,  2 

the  incorporators  shall  organize  by  the  choice,  by  ballot,  of  a  temporary  3 

clerk,  who  shall  be  sworn,  by  the  adoption  of  by-laws  and  by  the  election  4 

by  ballot  of  directors,  of  a  treasurer,  of  a  clerk  and  of  such  other  offi-  5 

cers  as  the  by-laws  require  to  be  elected  by  the  stockliolders.    The  tempo-  6 

rary  clerk  shall  make  and  attest  a  record  of  the  proceedings,  until  the  7 

clerk  has  been  chosen  and  sworn,  including  a  record  of  such  choice  and  8 

qualification.  9 


Completion  of 
organization. 
Articles  of 
organization; 
liability  for 
false  state- 
ment. 

1829,  56,  §  6. 
R.  S.  38,  §  15. 
1851,  133,  §4. 
1855.68,  §  2. 
1857,276.  §  1. 
G.  S.  60,  §  16; 
61,  §8. 
1870. 224, 
§§11,32 
1875,  177, 
P.  S.  106, 
§§21,40,48. 
R.  L.  110, 
§§  20,43,44. 
1903,  437, 
§§  11,  95. 


,§2. 


Section  10.  A  majority  of  the  directors  elected  at  such  first  meeting  1 
shall  forthwith  make,  sign  and  make  oath  to  articles  setting  forth :  2 

(a)  A  true  copy  of  the  agreement  of  association  and  the  names  of  the  3 
subscribers  thereto,  or,  if  the  corporation  is  created  by  special  act,  a  copy  4 
of  the  act  of  incorporation.  5 

(b)  The  date  of  the  first  meeting  and  of  the  successive  adjourmnents  6 
thereof,  if  any.  7 

(c)  Subject  to  section  fourteen,  the  amount  of  capital  stock  then  to  8 
be  issued,  the  amount  thereof  to  be  paid  for  in  full  in  cash,  the  amount  9 
thereof  to  be  paid  for  in  cash  by  instalments  and  the  instalment  to  be  10 
paid  before  the  corporation  commences  business,  and  the  amount  thereof  11 
to  be  paid  for  in  property.     If  such  property  consists  in  any  part  of  real  12 


Chap.  156.]  BusraESS  corporations.  1639 

13  estate,  its  location,  area  and  the  amount  of  stock  to  be  issued  therefor  iioMass.  sso. 

14  shall  be  stated;   if  any  part  of  such  property  is  personal,  it  shall  be  de-  152  mS; 423! 

15  scribed  in  such  detail  as  the  commissioner  may  require,  and  the  amount  659.'''    '    "    ' 

16  of  stock  to  be  issued  therefor  stated.     If  any  part  of  the  capital  stock  is 

17  issued  for  sendees  or  expenses,  the  nature  of  such  services  or  expenses 

18  and  the  amount  of  stock  which  is  issued  therefor  shall  be  clearly  stated. 

19  ((/)  The  name,  residence  and  post  office  address  of  each  of  the  officers 

20  of  the  corporation. 

21  The  directors  who  sign  such  articles  and  the  officers  and  directors  who 

22  sign  any  amendment  thereof  shall  be  jointly  and  severally  liable  to  any 

23  stockholder  of  the  corporation  for  actual  damages  caused  by  any  state- 

24  ment  therein  which  is  false  and  which  they  know,  or  on  reasonable 

25  examination  could  have  known,  to  be  false. 

1  Section  11.     The  articles  of  organization,  the  agreement  of  associa-  Filing  of  arti- 

2  tion,  and  the  record  of  the  first  meeting  of  the  incorporators,  including  fEltioD,°etc.°" 

3  the  by-laws,  shall  be  submitted  to  the  commissioner,  who  shall  examine  R^^I.'H.'ffs. 

4  them  and  who  may  require  such  amendment  thereof  or  such  additional  }||^'  J2g'  |  j- 

5  information  as  he  deems  necessary.    If  he  finds  that  the  provisions  of  law  g.  &\  eo,  §  ig; 

6  relative  to  the  organization  of  the  corporation  have  been  complied  with,  isVo,  224. 

7  he  shall  endorse  his  approval  on  the  articles.    Thereupon,  the  articles  isTo.'iiy.  §  2. 

8  shall,  upon  payment  of  the  fee  provided  by  section  fifty-three,  be  filed  46,"48, 59.    ~  ' 

9  in  the  office  of  the  state  secretary,  who  shall  cause  them  and  the  endorse-  ^^l[  f°o[  ^  '■ 

'    10  ment  thereon  to  be  recorded.  1903,437,  §§  12, 95.  §§'26,43,44,57. 

191S,  257,  §  349.  1919,5.  1920,2.  117  Mass.  476. 

1  Section  12.     Upon  the  approval  and  filing  as  above  provided  of  the  Certificate  of 

2  articles  of  organization  of  a  corporation  organized  under  general  laws,  isro.  224,  §  11. 

3  the  state  secretary  shall  issue  a  certificate  of  incorporation  in  the  follow-  r  l  110,  §20 
4ingform:  ^f,VIJ; 

19IS,  257, 

C0MM0^^WEALTH    OF    IVLvSSACHtlSETTS.  5„H^-, 

1919, 5. 

Be  it  known  that  whereas  (the  names  of  the  subscribers  to  the  agreement  of  J,7°jfass  476 
association)  have  associated  themselves  with  the  intention  of  forming  a  corpo-  126  Mass!  300! 
ration  under  the  name  of  (the  name  of  the  corporation),  for  the  purpose  (the  J^gMass'tsI' 
purpose  declared  in  the  agreement  of  association),  with  a  capital  stock  of  (the  isi  Mass. sss'. 
amount  fixed  in  the  agreement  of  association,  with  a  statement  of  the  several  '^^  Mass.  im. 
classes  into  which  the  stock  is  divided  and  their  respecti\'e  amounts,  and  of  the 
method  oi  paying  for  such  stock,  whether  by  cash  in  full,  cash  in  instalments, 
property,  services  or  expenses,  or  partly  by  one  method  and  partly  by  another 
or  others),  and  have  comphed  with  the  pro\nsions  of  the  statutes  of  this  com- 
monwealth in  such  case  made  and  provided,  as  appears  from  the  articles  of 
organization  of  said  corporation,  duly  approved  by  the  commissioner  of  cor- 
porations and  taxation  and  recorded  in  this  office:   now,  therefore,  I  (the  name 
of  the  secretary),  secretary  of  the  commonwealth  of  Massachusetts,  do  hereby 
certify  that  said  (the  names  of  the  subscribers  to  the  agreement  of  association) , 
their  associates  and  successors,  are  legally  organized  and  estabUshed  as,  and 
are  hereby  made,  an  existing  corporation  under  the  name  of  (name  of  the  cor- 
poration), with  the  powers,  rights  and  privileges,  and  subject  to  the  hmitations, 
duties  and  restrictions,  which  by  law  appertain  thereto. 

Witness  my  official  signature  hereunto  subscribed,  and  the  great  seal  of  the 
commonwealth  of  Massachusetts  hereunto  affixed,  this  day  of 

in  the  year  (the  date  of  filing  of  the  articles  of 

organization). 

5  If  such  corporation  is  organized  with  capital  stock  -ndthout  par  value, 

6  the  form  of  said  certificate  may  be  modified  to  conform  thereto. 


1640  BUSINESS   CORPORATIONS.  [CH.^^P.    156. 

The  state  secretary  shall  sign  the  certificate  of  incorporation  and  cause  7 
the  great  seal  of  the  commonwealth  to  be  thereto  affixed,  and  such  8 
certificate  shall  have  the  force  and  efi'ect  of  a  special  charter.  The  ex-  9 
istence  of  every  corporation  organized  under  general  laws  shall  begin  10 
upon  the  filing  of  the  articles  of  organization  in  the  office  of  the  state  11 
secretary.  The  state  secretary  shall  also  cause  a  record  of  the  certificate  12 
of  incorporation  to  be  made,  and  such  certificate,  or  such  record,  or  a  13 
certified  copy  thereof,  shall  be  conclusive  evidence  of  the  existence  of  14 
such  corporation.  15 

fjos'el  §  1          Section  13.     Every  corporation  may  determine  by  its  by-laws  the  1 

1833' 83' 1 1      ^'^"®  ^'^*^  place  of  holding  and  the  manner  of  conducting  its  meetings,  2 

R.s.'as,'          and,  in  accordance  with  sections  twenty-one  and  twenty-two,  of  electing  3 

G.  s'.eb,  §§  2,    its  officers,  the  powers,  duties  and  tenure  of  its  officers,  the  number  of  its  4 

is7o,'234.§2o.  directors,  the  number  of  stockholders  and  of  directors  necessary  to  con-  5 

m§'28'. ^ ^'    stitute  a  quorum,  the  manner  of  calling  regular  and  special  meetings  of  6 

no^§'26 '  ^  ^'    ^'^^  directors,  the  expediency  of  providing  for  an  executive  committee,  7 

«°i\  *95 '         ^^^^  number  of  members  thereof,  and  the  duties  which  may  be  delegated  8 

s^Met.  301,       to  it,  the  method  of  making  demand  for  payment  of  subscriptions  to  9 

218  Mass.  387.    its  Capital  stock,  the  conditions  under  which  a  new  certificate  of  stock  10 

may  be  issued  in  place  of  a  certificate  which  is  alleged  to  have  been  lost  11 

or  destroyed,  the  method  in  general  of  transacting  its  business  and  the  12 

manner  by  which  the  by-laws  may  be  altered,  amended  or  repealed.  13 

S!fck*^°^  Section  14.     Every  corporation  in  its  agreement  of  association,  or  in     1 

Stock  without    the  case  of  a  corporation  created  by  special  law,  in  its  articles  of  organiza-    2 

1855,290,'         tion,  or  in  an  amendment  to  said  agreement  or  articles  which  may  be     3 

is7o,224,  §25.  adopted  as  hereinafter  provided,  may  create  shares  of  stock  with  or    4 

R.  i^.  no,  §  36.  without  par  value  and  may  create  two  or  more  classes  of  stock  with     5 

iQoi;*!';  '^"f'h  preferences,  voting  powers,  restrictions  and  qualifications  thereof     6 

i92o'^',3«'  §  3     '^^  ^^^^^  ^^  fixed  in  said  agreement  or  articles  or  in  such  amendment.     7 

222  Mass'  iis'   ^^^}^^^  ^^  ^^7  provisious  so  fixed,  every  share  without  par  value  shall     8 

be  equal  to  every  other  such  share.  9 

The  provisions  of  law  relating  to  the  issue  of  shares  of  capital  stock  10 

with  par  value  shall  apply  to  the  issue  of  shares  without  par  value,  and  1 1 

a  corporation  may  issue  its  authorized  shares  without  par  value  for  such  12 

cash,  property,  tangible  or  intangible,  services  or  expenses  as  may  be  13 

determined  from  time  to  time  by  the  board  of  directors,  subject  to  the  14 

provisions  of  the  agreement  of  association,  articles  of  organization  or  15 

amendments  thereof  and,  in  the  case  of  an  increase  of  capital  stock,  sub-  16 

ject  to  the  vote  of  stockliolders  determining  the  terms  and  manner  of  17 

the  disposition  of  the  increased  stock  pursuant  to  section  forty-one,  and  IS 

when  the  cash  or  other  consideration  for  \\hich  they  are  to  be  issued,  as  19 

stated  in  the  articles  of  organization,  or  certificate  of  issue,  or  articles  of  20 

amendment,  made  pursuant  to  section  ten,  sixteen  or  forty-four,  has  21 

been  received,  said  shares  shall  be  fully  paid  stock  and  not  liable  to  any  22 

further  call  or  assessment  thereon,  nor  shall  the  subscriber  or  holder  be  23 

liable  for  any  further  payments,  except  as  provided  in  section  thirty-five.  24 

In  any  case  in  which  the  law  requires  that  the  par  value  of  the  shares  25 

of  stock  of  a  corporation  be  stated,  it  shall  be  stated,  in  respect  of  shares  26 

without  par  value,  that  such  shares  are  without  par  value;  and  wherever  27 

the  amount  of  stock,  authorized  or  issued,  is  required  to  be  stated,  if  any  28 

shares  without  par  value  are  authorized,  the  number  of  shares  authorized  29 

or  issued  of  the  several  classes  shall  be  stated,  and  it  shall  also  be  stated  30 


Chap.  156.]  business  corporations.  1641 

31  whether  such  shares  are  with  or  without  par  vakie  and  what  the  par  value 

32  is  of  such  shares  as  have  par  value.  / 

1  Section  15.     Capital  stock  may  be  issued  for  cash,  at  not  less  than  For  what  stock 

2  par,  if  the  shares  have  par  value,  and  may  be  issued  for  property,  tangi-  Issl'^i'sru'e. 

3  ble  or  intangible,  or  for  services  or  expenses.    Stock  issued  for  cash  may  Jlgf;  Jol' 

4  be  paid  for  in  full  before  it  is  issued  or  by  instalments.     If  it  is  paid  for  187^,392!  fa. 

5  by  instalments,  the  stock  certificate  shall  be  legibly  stamped  with  the  \llflf.^^^2 

6  words  "  per  cent  paid  up,  balance  payable  (stating  manner  isTg]  275', 

7  and  time  of  payment)  and  shares  subject  to  forfeiture  if  p.  s.'  165,  §  i7; 

8  unpaid",  the  facts  being  truly  stated;  and,  as  each  instalment  is  de-  49.'' 

9  manded  and  paid,  the  certificate  shall  be  stamped  accordingly.  m  SMiVs^' 

1903,  437,  §§  14.  95.  152  Mass.  428.  193  Mass.  138. 

1918,  257,  I  350.  155  Mass.  184.  194  Mass.  518. 

1919,  5.  183  Mass.  355,  224  Mass.  564. 

1920,  2.  185  Mass.  265,  231  Mass.  513. 
150  Mass.  200.  '                  187  Mass.  262.  235  Mass.  162. 

1  Section  16.     The  whole  or  any  part  of  any  unissued  balance  of  the  issue  of 

2  authorized  capital  stock  may  be  issued,  subsequent  to  the  issue  of  stock  Xck  "ubse^ 

3  certified  by  the  articles  of  organization,  by  vote  of  the  directors,  under  n"™' J°  °"^'' 

4  authority  of  the  by-laws  or  of  a  general  or  special  vote  of  the  incorporators  jf"!,'!.'^' 

5  at  the  first  meeting  or  of  the  stockholders  at  a  subsequent  meeting,  if,  k  a  3a 

6  within  thirty  days  after  such  vote  of  the  directors,  a  certificate  signed  ci  s^'ea 

7  and  sworn  to  by  the  president,  treasurer  and  a  majority  of  the  directors  is  1870.224, 

8  submitted  to  the  commissioner,  setting  forth  —  (a)  the  total  amount  of  p.  s.  loe,' 

-      "46,47,59. 


9  capital  stock  authorized;  (6)  the  amount  of  stock  already  issued  for  cash  ilgg.W,  § 

10  payable  by  instalments  and  the  amount  paid  thereon;  also  the  amount  §543/44; 57. 

11  of  full  paid  stock  already  issued  for  cash,  property,  services  or  expenses;  li°j'i''|J' 

12  (c)  the  amount  of  additional  stock  to  be  issued  for  cash,  property,  services  '^'l^^s^. 

13  or  expenses,  respectively;  (fZ)  a  description  of  said  property,  and  a  state- i9i9, 5. 

14  ment  of  the  nature  of  said  services  or  expenses,  in  the  manner  required  194  Ma's3.'5i8. 

15  by  section  ten.     The  commissioner  shall  examine  such  certificate  in  the 

16  same  manner  as  the  original  articles  of  organization.     If  he  finds  that  it 

1 7  conforms  to  the  requirements  of  law,  he  shall  endorse  his  approval  thereon, 

18  and  it  shall  thereupon  be  filed  in  the  office  of  the  state  secretary,  who, 

19  upon  payment  of  the  fee  provided  in  section  fifty-five,  shall  cause  it  and 

20  the  endorsement  thereon  to  be  recorded.     No  issue  of  stock  subsequent 

21  to  that  certified  by  the  articles  of  organization  shall  be  lawful  until  said 

22  certificate  is  filed  with  the  secretary  as  aforesaid.     No  stock  shall  be  at 

23  any  time  issued  unless  the  cash,  so  far  as  due,  or  the  property,  services 

24  or  expenses  for  which  it  was  authorized  to  be  issued,  has  been  actually 

25  received  or  incurred  by,  or  conveyed  or  rendered  to,  the  corporation,  or 

26  is  in  its  possession  as  surplus;   nor  shall  any  note  or  evidence  of  indebt- 

27  edness,  secured  or  unsecured,  of  any  person  to  whom  stock  is  issued,  be 

28  deemed  to  be  payment  therefor ;  and  the  president,  treasurer  and  directors 

29  shall  be  jointly  and  severally  Hable  to  any  stockholder  of  the  corporation 

30  for  actual  damages  caused  to  him  by  such  issue. 

1  Section  17.     An  issue  of  stock  subsequent  to  that  certified  by  the  yaUdationof 

2  articles  of  organization  which  is  invalid  solely  for  the  reason  that  the  'ms.'as?!"^' 

3  certificate  is  not  submitted  to  the  commissioner  within  thirty  days  as  fg^ig^'s. 

4  required  by  the  preceding  section  may  be  rendered  lawful  and  valid  as  of  '^"°'  ^■ 

5  the  date  of  its  issue  if  the  certificate  is  afterward  submitted  to  him,  and 
C  is  examined  and  approved  by  him  and  filed  and  recorded  in  the  office  of 


1642 


BUSINESS   CORPORATIONS. 


[Chap.  loG. 


the  state  secretary,  upon  payment  of  such  fee,  not  exceeding  twenty-five    7 
dollars,  as  the  commissioner  may  fix.  8 


Pa>inent  of 
subscriptions. 
1903,  437. 
§§  15,  16. 
191S,  257, 
§352. 

1919,  5. 

1920,  2. 


Sale  of  rights 
of  delinquent 
subscriber. 
1903,  437,  §  15. 
5  Grav,  520. 
110  Mass.  213. 
168  Mass.  345. 
188  Mass.  587. 


Sale  of  stock 
for  unpaid  in- 
stalments, etc. 
1903,  437,  §  16. 
1910,  171. 
1918,  257, 
§352. 
1919,5. 
1920,  2. 


Section  18.  In  the  case  of  capital  stock  authorized  to  be  issued  for 
cash,  whether  or  not  to  be  paid  in  full  before  issue,  the  directors  may 
require  payment  in  such  proportions  and  at  such  times  and  places  as 
they  deem  proper,  by  making  demand  therefor  according  to  the  by-laws, 
or,  in  default  of  such  by-law,  by  notice  mailed  to  each  subscriber  or 
stockholder  at  least  seven  days  before  his  subscription  or  any  portion 
thereof,  or  any  instalment  due  upon  stock  already  issued,  is  payable. 


Section  19.  If,  under  the  articles  of  organization,  capital  stock  1 
issued  for  cash  is  to  be  paid  for  in  full  before  it  is  issued,  and  the  sub-  2 
scriber  refuses  or  neglects  to  pay  the  amount  demanded  for  thirty  days  3 
after  the  time  limited  for  payment  in  the  demand  made  under  the  pre-  4 
ceding  section,  his  rights  of  subscription  may  be  sold  by  public  auction  5 
by  the  treasurer  of  the  corporation  who,  out  of  the  proceeds  of  such  sale,  6 
shall  pay  to  the  corporation  the  amount  then  due  from  such  subscriber  7 
with  interest  and  incidental  charges,  first  gi^'ing  notice  by  mail  to  such  8 
subscriber,  not  less  than  ten  days  prior  to  such  sale,  of  the  time  and  place  9 
appointed  therefor  and  of  the  amount  due  and  payable  by  him.  Upon  the  10 
sale  of  such  rights  as  aforesaid,  the  directors  shall  give  to  the  purchaser  all 
certificate  thereof.  If  the  rights  of  such  subscriber  do  not  sell  for  an  12 
amount  sufficient  to  pay  the  amount  due  from  him  with  interest  and  13 
charges  of  sale,  he  shall  be  liable  to  the  corporation  in  an  action  at  law  for  14 
the  deficiency;  if  they  sell  for  more,  he  shall  be  entitled  to  the  surplus.  15 
At  the  expiration  of  thirty  days  after  the  time  limited  for  payment  as  16 
aforesaid,  the  directors  may  waive  their  right  to  offer  such  rights  for  sale,  17 
and  may  elect  to  proceed  at  law  against  such  delinquent  subscriber  to  18 
recover  all  amounts  due  and  payable  by  him  with  interest.  If  said  rights  19 
are  not  sold  at  said  auction,  or  if  a  judgment  rendered  in  an  action  against  20 
a  subscriber  remains  unsatisfied  for  thirty  days,  all  amounts  previously  21 
paid  by  him  shall  be  forfeited  to  the  corporation.  22 

Section  20.  If,  under  the  articles  of  organization,  capital  stock  is  1 
issued  payable  by  instalments,  and  a  stockholder  refuses  or  neglects  to  2 
pay  an  instalment  for  thirty  days  after  the  time  limited  for  payment  in  3 
the  demand  under  section  eighteen,  the  treasurer  of  the  corporation  may  4 
sell  such  stockholder's  shares  by  public  auction,  and,  out  of  the  proceeds  5 
of  such  sale,  shall  pay  to  the  corporation  all  instalments  then  due  from  6 
such  stockholder  with  interest  and  incidental  charges.  A  notice  stating ,  7 
the  time  and  place  of  such  sale  and  the  amount  of  the  instalment  due  and  8 
payable  and  also  the  number  of  the  certificate  and  number  of  shares  of  9 
stock  thus  off'ered  for  sale  shall  be  sent  by  the  treasurer  by  mail  not  less  10 
than  ten  days  prior  to  such  sale  to  such  stockholder  and  also  the  person  11 
who  originally  subscribed  to  the  said  delinquent  stock.  Upon  the  sale  12 
of  such  stock  as  aforesaid,  the  directors  shall  transfer  the  shares  so  sold  13 
to  the  purchaser,  who  shall  be  entitled  to  a  certificate  therefor,  so  stamped  14 
as  to  indicate  the  instalments  paid,  and  shall  be  liable  under  this  section  15 
for  all  subsequent  instalments.  Upon  the  issue  of  such  certificate,  the  cer-  10 
tificate  outstanding  shall  be  void  except  as  provided  in  sections  twenty-  17 
four  to  forty-six,  inclusive,  of  chapter  one  hundred  and  fifty-five.  The  18 
balance,  if  any,  of  the  proceeds  of  such  sale  shall  be  held  by  the  corpora-  19 
tion  for  such  stockholder,  his  representatives  or  assigns,  and  be  paid  to  20 


Chap.  156.]  business  corporations.  1643 

21  him  or  them  at  any  time  upon  surrender  and  delivery  to  the  corporation 

22  of  his  certificate.     If  no  person  offers  an  amount  sufficient  to  pay  all 

23  instalments  due  upon  such  stock  with  interest  and  incidental  charges,  it 

24  may  or  may  not  be  sold,  and  the  delinquent  stockholder  shall  be  liable  to 

25  the  corporation  in  an  action  at  law  for  such  instalments,  interest  and  in- 

26  cidental  charges,  if  the  stock  is  not  sold,  or  for  the  deficiency,  if  it  is  sold, 

27  and  if  a  judgment  rendered  in  such  action  remains  unsatisfied  for  thirty 

28  days,  the  original  subscriber  shall  be  so  liable.     Instead  of  offering  such 

29  stock  for  sale,  the  directors,  at  the  expiration  of  the  time  limited  in  the 

30  notice  for  payment  of  such  instalments,  may  proceed  by  an  action  at  law 

31  against  the  delinquent  stockholder,  and,  if  a  judgment  rendered  against 

32  him  in  such  action  remains  unsatisfied  for  thirty  days,  against  the  original 

33  subscriber,  for  the  recovery  of  such  instalments,  interest  and  incidental 

34  charges.     The  delinquent  stockholder  or  the  original  subscriber,  as  the 

35  case  may  be,  upon  the  payment  of  such  instalments,  interest  and  inci- 

36  dental  charges,  or  of  the  judgment  therefor,  shall  be  entitled  to  a  certificate 

37  of  the  stock,  so  stamped  as  to  indicate  the  instalments  paid,  and,  there- 

38  upon,  the  certificate  outstanding  for  such  stock  shall  be  void,  except  as 

39  provided  in  sections  twenty-four  to  forty-six,  inclusive,  of  chapter  one 

40  hundred  and  fifty-five.     If  a  judgment  rendered  in  an  action  against  the 

41  original  subscriber  remains  unsatisfied  for  thirty  days,  said  stock  shall 

42  be  forfeited  to  'the  corporation,  an  entry  of  transfer  to  it  shall  be  made 

43  on  its  books,  and,  thereupon,  the  certificate  outstanding  shall  be  void  as 

44  aforesaid.     While  the  stock  remains  the  property  of  the  corporation,  no 

45  dividends  shall  be  declared  nor  instalments  paid  upon  it;   but  it  shall 

46  remain  subject  to  the  control  of  the  corporation  according  to  its  by-laws. 

OFFICERS. 

1  Section  21.     The  business  of  every  corporation  shall  be  managed  and  f^J^fj,  5 1 

2  conducted  by  a  president,  a  board  of  not  less  than  three  directors,  a  clerk,  ^''^g'^g'  ^ ' 

3  a  treasurer  and  such  other  officers  and  such  agents  as  the  corporation  by  §§  2-4. 

4  its  by-laws  shall  authorize.     The  treasurer  may  be  required  to  give  a  s.  6.' 

5  bond  for  the  faithful  performance  of  his  duty  in  such  sum  and  with  such  isto!  224] 

6  sureties  as  the  by-laws  may  prescribe.     The  clerk,  who  shall  be  a  resi-  K.s.^io6,''^' 

7  dent  of  the  commonwealth,  shall  be  sworn  and  shall  record  all  votes  of  ^  f^'^o  ""' 

8  the  corporation  in  a  book  to  be  kept  therefor.  5§  22, 24. 

1903,  437,  §§  17,  18.  05.  1920,  237,  §  1.  15  Gray.  211.  188  Mass.  254. 

1  Section  22.     Except  as  otherwise  provided  in  this  and  the  following  choice  of 

2  section,  the  directors,  treasurer  and  clerk  shall  be  elected  annually  by  agcn't"*'' 

3  ballot,  by  such  stockholders  as  have  the  right  to  vote,  and  the  president  H^l]  Is,  | }; 

4  shall  be  elected  annually  by  and  from  the  board  of  directors.     All  other  |^  ^i|*' 

5  agents  and  officers  shall  be  chosen  or  appointed,  and  all  vacancies  filled,  ^  '^  ^'"^ 

6  in  the  manner  prescribed  in  the  by-laws,  or,  in  default  of  such  by-law,  by  isfi«',  290.  §  3. 
the  board  of  directors.     Every  director,  unless  the  by-laws  otherwise  pro-  1S74;  349!  §  1,' 


i 


8  vide,  shall  be  a  stockholder.    The  directors  and  other  officers  shall  hold  p.s.ioe, 

9  office  for  one  year  and  until  their  successors  are  chosen  and  qualified,  r  it'ud, 

10  except  that  a  corporation  may,  by  its  articles  of  organization  or  by  an  l^oi;ii^, 

11  amendment  to  such  articles  adopted  as  provided  in  this  chapter,  divide  flZ/'jIf' 

12  its  directors  into  classes  and  prescribe  the  tenure  of  office  of  the  several  §  sm. 

13  classes  and  the  class  of  stock  by  wliich  each  class  of  directors  shall  be  1920! 


237,  §  1. 


93. 


14  elected;  but  no  class  shall  be  elected  for  a  shorter  period  than  one  year  scusK 

15  or  for  a  longer  period  than  five  years,  and  the  term  of  office  of  at  least  ngjj'iis.  (,i. 

16  one  class  shall  expire  in  each  year.  231  Mass.  513. 


1644 


BUSINESS   CORPORATIONS. 


[Ch.\p.  156. 


ManufacturinR 
corporation 
may  provide 
for  election  of 
directors  by 
employees. 
1919,  70. 


Section  23.     A  manufacturing  corporation  may  provide  by  by-law  1 

for  the  nomination  and  election  by  its  employees  of  one  or  more  of  them  2 

as  members  of  its  board  of  directors.     All  such  elections  shall  be  held  3 

at  the  works  of  the  corporation  on  the  day  of  the  annual  meeting,  and  4 

the  voting  shall  be  by  secret  ballot.     If  less  than  a  majority  of  those  5 

entitled  to  vote  participate  in  the  election  there  shall  be  no  election,  6 

and  the  vacancy 'shall  be  filled  as  provided  in  the  preceding  section.     A  7 

director  elected  by  the  employees  shall  have  the  same  rights  and  powers  S 

and  shall  be  subject  to  the  same  duties  and  responsibilities  as  a  director  9 

elected  by  the  stockholders.  10 


Certificate  of 
change  in 
officers. 

1907,  282. 

1908,  ISO. 
1915,  15. 

1918,  257, 
§§  354,  355. 

1919,  5. 

1920,  2. 


Section  24.  Whenever  any  change  is  made  in  the  officers  of  a  cor- 
poration, except  at  the  annual  meeting,  the  corporation  shall  forthwith 
file  in  the  office  of  the  commissioner  a  certificate  of  such  change,  signed 
and  sworn  to  by  the  clerk.  Any  corporation  which  omits  to  make  and 
file  a  certificate  as  aforesaid  within  thirty  days  after  such  change  has 
been  made,  Or  which  fails  to  keep  a  clerk  of  the  corporation  in  this  com- 
monwealth, shall  forfeit  not  more  than  five  hundred  dollars,  to  be  re- 
covered in  the  manner  prescribed  by  section  fifty-two. 


Powers  of 
directors. 
1903,  437,  §  19. 
2  Met.  163. 
188  Mass.  515. 


Section  25.  The  board  of  directors  may  exercise  all  the  powers  of  1 
the  corporation,  except  such  as  are  conferred  by  law,  or  by  the  by-laws  of  2 
the  corporation,  upon  the  stockholders.  3 


190  Mass.  61. 


209  Mass.  354. 


211  Mass.  453. 


Executive 
committee. 
1903,  437,  §  19. 
2  Met,  163. 
154  Mass.  277. 
211  Mass.  453. 


Meetings  of 
directors. 
1903,  437,  §  25. 


Section  26.     A  corporation  may,  by  its  by-laws,  provide  for  an  ex-  1 

ecutive  committee  to  be  elected  from  and  by  its  board  of  directors.     To  2 

such  committee  may  be  delegated  the  management  of  the  current  and  3 

ordinary  business  of  the  corporation,  and  such  other  duties  as  the  by-laws  4 

may  prescribe.  5 

Section  27.     Meetings  of  the  board  of  directors  may  be  held  within  1 

or  without  the  commonwealth.     Any  meeting  of  the  board  shall  be  a  2 

legal  meeting  without  notice  if  each  director,  by  a  writing  filed  with  the  3 

records  of  the  meeting,  waives  such  notice.  4 


Meetings  of 
stociiholders. 
1829,  53,  §  15. 
R.  S.  38,  §  7; 
44,  §  2. 
G.  S.  60,  §  7; 
68,  §  7. 

1870,  224.  §  20. 
P.  S.  105,  §  5; 
106,  §  28. 
R.L.  109,  §  5; 
110,  §  20. 

1903,  437, 
§§20,95. 

1904,  207. 
8  Met.  301. 
10  Cush.  27. 
8  Allen,  217. 


stockholders. 

Section  28.  There  shall  be  an  annual  meeting  of  the  stockholders,  1 
and  the  time  and  place  of  holding  it,  and  the  manner  of  conducting  it,  2 
shall  be  fixed  by  the  by-laws;  but  it  shall  be  held  within  ninety  days  3, 
after  the  end  of  the  fiscal  year  of  the  corporation.  All  meetings  of  4 
stockholders  shall  be  held  in  the  commonwealth.  A  written  notice,  stat-  5 
ing  the  place,  day  and  hour  thereof,  shall  be  given  by  the  clerk,  at  least  6 
seven  days  before  the  meeting,  to  each  stockholder  by  leaving  such  7 
notice  with  him  or  at  his  residence  or  usual  place  of  business,  or  by  8 
mailing  it,  postage  prepaid,  and  addressed  to  each  stockholder  at  his  9 
address  as  it  appears  upon  the  books  of  the  corporation.  Unless  the  10 
by-laws  otherwise  provide,  a  majority  in  interest  of  all  stock  issued  and  11 
outstanding  and  entitled  to  vote  shall  constitute  a  quorum.  Notices  12 
of  all  meetings  of  stockholders  shall  state  the  purposes  for  which  the  13 
meetings  are  called.  No  notice  of  the  time,  place  or  purpose  of  any  14 
regular  or  special  meeting  of  the  stockholders  shall  be  required  if  every  15 
stockholder,  or  his  attorney  thereunto  authorized,  by  a  writing  which  is  16 
filed  with  the  records  of  the  meeting,  waives  such  notice.  17 


Chap.  156.]  business  corporations.  1645 

1  Section  29.     Whenever  any  change  is  made  altering  the  date  fixed  chlaielY°^ 

2  in  the  by-laws  for  the  annual  meeting  of  a  corporation,  the  corporation  nfJe^ti"' *°""''' 

3  shall  forthwith  file  in  the  office  of  the  commissioner  a  certificate  of  such  i90|.  222. 

4  change,  signed  and  sworn  to  by  the  clerk  of  the  corporation.     Any  cor-  §§  356, 357. 

5  poration  which  omits  to  make  and  file  a  certificate  as  aforesaid  within  1920!  2'. 

6  thirty  days  after  such  a  change  has  been  made,  shall  forfeit  not  more 

7  than  one  hundred  dollars,  to  be  recovered  in  the  manner  prescribed  by 

8  section  fifty-two. 

1  Section  30.     Special  meetings  of  the  stockholders  may  be  called  by  special 

2  the  president  or  by  a  majority  of  the  directors,  and  shall  be  called  by  the  "{""s'^^j  2. 

3  clerk,  or  in  case  of  the  death,  absence,  incapacity  or  refusal  of  the  clerk,  p  |-  fos Vs. 

4  by  any  other  officer,  upon  written  application  of  three  or  more  stock-  J^g^L.  109,  §  5. 

5  holders  who  are  entitled  to  vote  and  who  hold  at  least  one  tenth  part  in  §§  22, 95.' 

6  interest  of  the  capital  stock,  stating  the  time,  place  and  purpose  of  the 

7  meeting. 

1  Section  31.     No  corporation  shall,  directly  or  indirectly,  vote  upon  voting  rights 

2  any  share  of  its  own  stock.  1903, 437,  §  23.  loi  Mass.  sos.  °^  corporations. 

1  Section  32.     Stockholders  entitled  to  vote  shall,  except  as  provided  Voting  powers 

1    c  CI  1  1        1  1    />  c  1  stockholders. 

2  m  sections  two  and  tour  01  chapter  one  hundred  and  fatty-seven,  have  p^°?'«s. 

3  one  vote  for  each  share  of  stock  owned  by  them;  provided,  that  in  cor-  44,  §2. ' 

4  porations  having  two  or  more  classes  of  stock,  the  voting  powers  of  es,  §7.       ' 

5  the  different  classes  may  be  fixed  in  the  manner  provided  by  section  Ra'Kw.'Isf' 

6  fourteen.     Capital  stock  shall  not  be  voted  upon  if  any  instalment  of  ^  "l^to  §  s- 

7  the  subscription  therefor  which  has  been  duly  demanded  under  section  J^J^g^/j^^ 

8  eighteen  is  overdue  and  unpaid.     Stockliolders  may  vote  either  in  per-  §§24,95.' 

9  son  or  by  proxy.     No  proxy  which  is  dated  more  than  six  months  before  1920]  349,  §  2. 

10  the  meeting  named  therein  shall  be  accepted,  and  no  such  proxy  shall  be 

1 1  valid  after  the  final  adjournment  of  such  meeting. 

stock. 

1  Section  33.     Each  stockholder  shall  be  entitled  to  a  certificate,  in  stock 

2  form  conformable  to  section  fifteen,  which  shall  be  signed  by  the  presi-  ilos^es!''!  3. 

3  dent  or  a  vice  president  and  either  the  treasurer  or  an  assistant  treasurer  R^^I'lf;  |  f^ 

4  of  the  corporation,  shall  be  sealed  with  its  seal  and  shall  certify  the  num-  JIIj'IIq 
■   5  ber  of  shares  owned  by  him  in  such  corporation.     Each  certificate  of  stock  g  a  bo 

G  which  by  the  agreement  of  association  or  amended  agreement  of  asso-  i87o,'224', 

7  ciation  or,  in  the  case  of  a  corporation  created  by  special  law,  by  its  1874,349,  §  1. 

8  articles  of  organization  or  by  amendment  is  limited  as  to  its  voting  I'slg'^l. 

9  rights,  or  which  is  preferred  as  to  its  dividend  or  as  to  its  share  of  the  fg'o2'44i'  fl'' 
10  principal  upon  dissolution,   shall  have  a  sufficient  statement  of  such  |a*?f;*qr 


§§26,95. 
19I(>,  105. 
16  Mass.  91. 


11  limitation  or  preference  plainly  written,  printed  or  stamped  upon  it, 

12  and  each  certificate  subsequently  issued  of  any  class  of  stock  in  the  cor-  scush.  los. 

13  poration  shall  have  plainly  written,  printed  or  stamped  thereon  the  222  Mass!  418: 

14  clause  of  such  agreement  of  association  or  amended  agreement  of  asso- 

15  ciation  or  articles  of  organization  authorizing  the  issue  of  stock  in  any 

16  respect  preferred  or  limited. 

1  Section  34.     The  directors  of  a  corporation  may,  subject  to  section  Lostcertifi- 

2  forty-two  of  chapter  one  hundred  and  fifty-five  and  to  the  by-laws  of  i87a'224,  §  26. 

3  the  corporation,  determine  the  conditions  upon  which  a  new  certificate  r.l.  no,  §28. 

4  of  stock  may  be  issued  in  place  of  any  certificate  alleged  to  have  been  s§°3i,*95.' 


1646 


BUSINESS   CORPORATIONS. 


[CIL4.P.    156. 


lost  or  destroyed.  They  may,  in  their  discretion,  require  the  owner  of  5 
a  lost  or  destroyed  certificate,  or  his  legal  representative,  to  give  a  bond  6 
with  sufficient  surety  to  the  corporation  in  a  sum  not  exceeding  double  7 
the  market  value  of  the  stock  to  indemnify  the  corporation  against  any  8 
loss  or  claim  which  may  arise  by  reason  of  the  issue  of  a  certificate  in  9 
place  of  such  lost  or  destroyed  stock  certificate.  10 


Liability  of 
stockholders. 
1821,  38. 
1826.137,  §  2 
1829,53,  §§  G, 
7,10,11. 
R.S.  38,  §§  16, 
21,32. 

1851,  133, 
§  IS;  2.52. 

1852,  9. 
1855,  290. 
G.  S.  60. 
§§12,17,22; 
68.  §  16. 
1862,218,5  2. 
1870,224,5  39. 

1875,  177,  §  1. 

1876,  1. 

P.  S.  lOfi,  §  61. 
R.  L.  110,  §  59. 
1903,  437, 
§§  33,  95. 
1920,  349,  §  4. 
16  Gray,  127. 
2  Allen,  498. 
6  Allen,  579. 


/LI.\BILITY   OF   STOCKHOLDERS,  OFFICERS   .AND   DIRECTORS. 

Section  35.  The  stockholders  of  a  corporation  which  reduces  its  1 
capital  stock  in  A'iolation  of  section  forty-five  shall  be  liable  for  the  2 
payment  of  the  debts  and  contracts  of  the  corporation  existing  at  3 
the  time  of  such  reduction  to  the  extent  of  the  amount  withdrawn  and  4 
paid  to  them  respectively.  The  stockliolders  of  a  corporation  shall  5 
also  be  liable  for  all  money  due  to  operatives  for  services  rendered  6 
\\ithin  six  months  before  demand  made  upon  the  corporation  and  its  7 
neglect  or  refusal  to  make  such  payment.  A  stockholder  who  pays  on  8 
a  judgment  or  otherwise  more  than  his  proportion  of  any  debt  included  9 
in  this  section  shall  have  a  claim  'for  contribution  against  the  other  10 
stockholders.  1 1 

Unless  otherwise  provided  in  the  agreement  of  association,  articles  of  12 
organization  or  amendments  thereof,  such  contribution,  in  the  case  of  13 
liability  based  on  reduction  of  capital  stock,  shall  be  in  proportion  to  the  14 
amounts  so  withdrawn  and  paid  to  them  respectively,  and  in  the  case  15 
of  any  other  liability  under  this  gection  shall  be  in  proportion  to  the  16 
amounts  of  stock  held  by  them  respectively  at  the  time  when  their  17 
liability  accrued,  shares  of  stock  with  par  value  to  be  computed  for  18 
this  purpose  at  their  par  value  as  fixed  at  that  time,  and  shares  without  19 
par  value  to  be  computed  at  the  value,  at  the  time  of  issue,  of  the  cash,  20 
property,  services  or  expenses  for  which  they  were  issued,  but  not  in-  21 
eluding  paid-in  surplus.  22 


Liability  of 
president, 
treasurer  and 
directors. 
1821,38. 
1829,  53,  §  9. 
R.  S.  38,  §  28. 
G.  S.  60,  §  30. 
1862,218,  §  1. 
1870,  224,  5  38. 
1875,  177,  I  2. 
P.  S.  106,  §  GO. 
1898,  266. 
R.L.  110,5  58. 
1903,  437, 
§§  34,  95. 
1911,488,  §  1. 
1918,257,5358. 


Section  36.     The  president,  treasurer  and  directors  of  every  cor-  1 

poration  shall  be  jointly  and  severally  liable  for  all  the  debts  and  con-  2 

tracts  of  the  corporation  contracted  or  entered  into  while  they  are  3 

officers  thereof  if  any  stock  is  issued  in  violation  of  section  fifteen  or  six-  4 

teen,  or  if  any  statement  or  report  required  by  this  chapter  is  made  5 

by  them  which  is  false  in  any  material  representation  and  which  they  6 

know,  or  on  reasonable  examination  could  have  known,  to  be  false;  but  7 

directors  who  vote  against  such  issue,  and  are  recorded  as  so  voting,  8 

shall  not  be  so  liable,  and  only  the  officers  signing  such  statement  or  9 

report  shall  be  so  liable.          i9i9, 5.             1920, 2.             10  Gray,  232,  eoo.  10 


137  Mass.  516. 
148  Mass.  226. 


150  Mass.  264. 
182  Mass.  530. 


190  Mass.  35. 
193  Mass.  138. 


5  8,9. 


Liability  of 
directors. 
1821,38. 
1829,53,  § 
R.  S.  38, 
§§  2.3-25. 
G.  S.  60. 
5§  25-27. 
1862,218.  §  1. 
1870,  224,  §  38. 
1877,230,  5  1. 
P.  S.  106,  5  GO. 
1898,  266. 
R.L.  110,  §  58. 
1903,  437, 
§5  35,  95. 


Section  37.     The  directors  of  every  corporation  shall  be  jointly  and  1 

severally  liable  for  the  debts  and  contracts  of  the  corporation  in  tlie  2 

following  cases:  3 

First.     For  declaring  or  assenting  to  a  dividend  if  the  corporation  4 

is,  or  thereby  is  rendered,  bankrupt  or  insolvent,  to  the  extent  of  such  5 

dividend.  0 

Second.     For  debts  contracted  between  the  time  of  making  or  assent-  7 

ing  to  a  loan  to  a  stockliolder  or  director  and  the  time  of  its  repayment,  8 

to  the  extent  of  such  loan.  9 


Chap.  156.]  business  corporations.  1647 

10  Directors  who  vote  against  declarinsr  said  dividend  or  wlio  vote  against  f  Alien.  398. 

iniTiip  •!  ISJ  JMass.  5o7. 

11  making  said  loan  shall  not  be  liable  as  aioresaid.  looMass.ei. 

1  Section  38.     A  stockholder  of  a  corporation  shall  be  held  liable  for  Enforcement  of 

2  its  debts  and  contracts  under  section  thirty-five,  and  the  president  or  stockholders, 

3  treasurer,  or  a  director  of  any  such  corporation,  shall  be  held  so  liable  isos^es^Ai. 

4  under  section  thirty-six  or  thirty-seven,  if  the  corporation  has  been  duly  II26;  1.3?;  §  1. 

5  adjudicated  bankrupt.     The  president  or  treasurer,  or  a  director,  shall  n's.U'.tizd- 

6  also  be  held  so  liable  under  .section  thirtv-six  or  thirtv-seven,  if  before  ^i;  44  §  22. 

7  a  suit  to  enforce  such  liability  is  brought  by  a  creditor  of  said  corporation,  H^i^,  3.^ 

8  a  written  demand  by  or  on  behalf  of  the  creditor  upon  such  corporation  g.  .s.'eo.  §§  31^ 

9  for  the  payment  of  his  claim  has  been  made,  and  said  corporation  has  1862,21s.' 

10  for  ten  days  thereafter  neglected  to  pay  it.     Except  as  above  provided,  1864,219. 

11  no  suit  shall  be  maintained  against  a  stockholder  or  officer  for  the  debts  Jf^Jj;  |^5;  ^ '° 

12  or  contracts  of  the  corporation.  !>! s°i06,' K  62- 

13  After  such  adjudication  of  bankruptcy,  or  after  the  said  demand  and  ^^'^^-.j ' 

14  neglect  to  pay  the  claim,  the  clerk,  or  other  officer  having  charge  of  the  §§  eo-es.'ss. 

15  records  of  such  corporation,  upon  request  of  a  creditor  of  the  corporation  §§  36,  95.' 

16  or  of  his  attorney,  shall  furnish  to  him  a  certified  list  of  the  names  of  all  JSlsllsf.'Isl'g. 

17  persons  who  were  officers  or  stockholders  in  such  corporation  at  the  Jgio;! 

18  time  when  the  liability  to  be  enforced  against  them  personally  accrued.  Ji  gj^y.  i39 

19  The  supreme  judicial  or  superior  court  shall  have  jurisdiction  in  equity  J^g^j^f^^'/^^ 

20  to  compel  such  list  to  be  furnished.     After  an  adjudication  of  bank-  623. 

21  ruptcy  or  after  the  said  demand  and  neglect  to  pay  the  claim,  any  creditor  1 1.-;  Mass!  286i 

22  may  file  a  bill  in  equity  in  the  supreme  judicial  or  superior  court  in  behalf  ffsMass.  269. 

23  of  himself  and  of  such  other  creditors  of  the  corporation,  entitled  to  en-  ggl.^gl.^  *'^^' 

24  force  their  claims  against  the  same  defendants,  as  may  join  in  the  bill  as  Js^Ma^wo 

25  plaintiff's,  against  it  and  all  persons  who  are  liable  to  the  plaintiff  as  stock- 

26  holders  or  officers  for  the  recovery  of  the  money  due  from  the  corporation 

27  to  himself  and  to  such  other  creditors  for  which  the  stockholders  or  officers 

28  may  be  personally  liable  by  reason  of  any  act  or  omission  on  the  part  of 

29  the  corporation  or  any  of  the  other  defendants,  setting  forth  the  bank- 

30  ruptcy  of  the  corporation,  or  the  said  demand  and  neglect  to  pay  the 

31  claim,  and  the  grounds  upon  which  it  is  expected  to  charge  the  stock- 

32  holders  or  officers  personally. 

1  Section  39.     Such  suit  shall  not  be  discontinued  by  the  plaintiff  f8g2?2is! 

2  except  by  order  of  the  court  after  notice  to  other  creditors.     It  shall  not  ||7q"2-,4 

3  abate  by  reason  of  the  non-joinder  of  persons  liable  as  defendants,  un-  §§45,47.' 

4  less  the  plaintiff,  after  notice  by  plea  or  answer  of  their  existence,  un-  §§67-69! 

5  reasonably  neglects  to  make  them  parties;   nor  shall  it  abate  by  reason  ^j'c^o?' 


6  of  the  death  of  a  defendant,  but  his  estate  shall  be  liable  in  the  hands  of  ^5  37,  95' 

7  his  executor  or  administrator,  who  may  voluntarily  appear,  or  who  may, '°  ^"^°'  ^*-- 

8  be  summoned  by  the  plaintiff",  to  defend  the  suit. 

1  Section  40.     Such  sums  as  may  be  decreed  to  be  paid  by  the  stock-  Apportionment 

2  holders  in  such  suit  shall  be  assessed  upon  them  in  the  proportions  fixed  Lst^lffiT^s'. 

3  in  section  thirty-five  with  respect  to  claims  for  contribution;    but  a  i\s''m'§^6l.' 

4  stockliolder  shall  not  be  liable  to  pay  a  larger  amount  than  the  amount  {yo3, 43?!  ^  "^^ 

5  of  stock  held  by  him  at  the  time  when  his  lialnlity  accrued,  shares  of  f^oo^'sM  ?  s 

6  stock  with  par  value  to  be  computed  for  this  purpose  at  their  par  value  as  i''  ^h'/'  ^^L 

7  fixed  at  that  time  and  shares  without  par  value  to  be  computed  at  the  127  Mass.' sse'. 

8  value,  at  the  time  of  issue,  of  the  cash,  property,  services  or  expenses  for 

9  which  they  were  issued,  but  not  including  paid-in  surplus. 


1648 


BUSINESS   CORPORATIONS. 


[Chap.  156. 


Amendm 

;nta 

requiring 

majority  vote. 

1S29 

53, 

§2. 

R.  S. 

38. 

§111 

,20 

1851 

133 

§8. 

1855,  478 

1  5. 

1857 

24. 

G.  S. 

60, 

S§11. 

21;  61,  § 

6. 

1865 

283 

§8. 

1866 

290 

§5. 

1870 

179 

;  224, 

§24. 

1871 

110 

§2. 

1873 

37, 

§2. 

1875 

177 

§3. 

1877, 

67; 

230, 

§3. 

1878. 

86, 

§2. 

PS. 

13.  §43; 

105,  §§  7, 

16. 

20;  106.  §§31, 

34,  35,  37 

1894, 

500 

1898. 

603 

§2. 

1899, 

199 

§2. 

R.  L. 

109. 

§§7. 

18.  29.  52 

110. 

§§31 

.32. 

34. 

1902 

441 

§1. 

1903, 

437, 

§§40 

95. 

1920. 

349. 

§6. 

211  Mass 

424. 

220  Mass. 

183. 

AMENDMENTS   AFTER   ORG.USflZATION. 

Section  41.  Every  corporation  may,  at  a  meeting  duly  called  for  1 
the  purpose,  by  the  vote  of  a  majority  of  all  its  stock,  or,  if  two  or  more  2 
classes  of  stock  have  been  issued,  of  a  majority  of  each  class  outstanding  .3 
and  entitled  to  vote,  authorize  an  increase  or  a  reduction  of  its  capital  4 
stock  and  determine  the  terms  and  manner  of  the  disposition  of  such  5 
increased  stock,  or  authorize  such  terms  and  manner  of  disposition  to  6 
be  determined  in  whole  or  in  part  by  the  board  of  directors  or  officers  of  7 
the  corporation,  may  authorize  a  change  of  the  location  of  its  principal  8 
office  or  place  of  business  in  this  commonwealth  or  a  change  of  the  par  9 
value  of  the  shares  of  its  capital  stock,  or  may  authorize  proceedings  for  10 
its  dissolution  under  section  fifty  of  chapter  one  hundred  and  fifty -five.  11 
Such  increased  stock  may  in  whole  or  in  part  be  disposed  of  without  12 
being  offered  to  the  stockholders.  Any  corporation  having  authorized  1.3 
shares  with  par  value  may,  at  a  meeting  duly  called  for  the  purpose,  by  14 
the  vote  of  a  majority  of  all  its  stock,  or,  if  two  or  more  classes  of  stock  15 
have  been  issued,  of  a  majority  of  each  class  outstanding  and  entitled  16 
to  vote,  including  in  any  event  a  majority  of  the  outstanding  stock  of  17 
each  class  affected,  change  such  shares  or  any  class  thereof  into  an  18 
equal  or  greater  number  of  shares  without  par  value,  or  provide  for  the  19 
exchange  thereof  pro  rata  for  an  equal  or  greater  number  of  shares  with-  20 
out  par  value;  provided,  that  the  preferences,  voting  powers,  restrictions  21 
and  qualifications  of  the  outstanding  shares  so  changed  or  exchanged  22 
shall  not  be  otherwise  impaired  or  diminished  without  the  consent  of  2.3 
the  holders  thereof.  •  24 


Amendments 
requiring  two 
thirds  or 
larger  vote. 
1852,  195. 
G.  S.  60,  §37; 
61,  §  14. 
1870,  224, 
§§  15,25,31. 
1875.  177.  §  4. 
P.  S.  106, 
§§23.42,51, 
53. 

1891,360,  §  1. 
1892,  198. 
R.  L.  109,  5  9; 
110,  §§  36,46, 
47,  49. 


Section  42.     Every  corporation  may,  at  a  meeting  duly  called  for  1 

the  purpose,  by  vote  of  two  thirds  of  each  class  of  stock  outstanding  and  2 

entitled  to  vote,  or  by  a  larger  vote  if  the  agreement  of  association  or  3 

act  of  incorporation  so  requires,  change  its  corporate  name,  the  nature  of  4 

its  business,  the  classes  of  its  capital  stock  subsequently  to  be  issued  and  5 

their  preferences  and  voting  power,  or  make  any  other  lawful  amendment  6 

or  alteration  in  its  agreement  of  association  or  articles  of  organization,  7 

or  in  the  corresponding  provisions  of  its  act  of  incorporation,  or  au-  8 

thorize  the  sale,  lease  or  exchange  of  all  its  property  and  assets,  including  9 

its  good  will,  upon  such  terms  and  conditions  as  it  deems  expedient.  10 

1903,  437,  §§40,  95.  1920,  349,  §  6.  139  Mass.  5.  220  Mass.  183. 


Articles  of 
amendment. 
1851,  133,  §  8. 
1854,478,  §  5. 
G.  S.  61,  §9. 
1870,  224, 
§§  34,  35,  37. 
1875,  177,  §  4. 
1878,  86,  §  2. 
P.  S.  106.  §§31. 
51,  56,  57,  59. 
1885,  310. 
1891,3111,  §4. 
1894,500. 
1898,  503. 
R.  L. 109, 
§§  10,18;  110, 
§§47,54,55,57. 
1903.  437, 
§§41,95. 
1918.257, 
§  360. 

1919,  5. 

1920,  2. 

220  Mass.  1S3. 


Section  43.  Within  thirty  days  after  any  meeting  at  which  any  1 
amendment  or  alteration  of  the  agreement  of  association  or  articles  of  2 
organization  has  been  adopted,  articles  of  amendment,  signed  and  sworn  3 
to  by  the  president,  treasurer  and  a  majority  of  the  directors,  setting  4 
forth  such  amendment  or  alteration  and  the  due  adoption  thereof,  shall  5 
be  submitted  to  the  commissioner,  who  shall  examine  them  with  the  6 
same  powers  as  in  the  case  of  the  original  articles  of  organization,  and,  if  7 
he  finds  that  they  conform  to  the  requirements  of  law,  shall  so  certify  S 
and  endorse  his  approval  thereon.  Thereupon  the  articles  of  amend-  9 
ment  shall,  upon  payment  of  the  fee  pro^•ided  in  section  fifty-four  or  10 
fifty-five,  as  the  case  may  be,  be  filed  in  the  office  of  the  state  secretary,  1 1 
who  shall  cause  them  and  the  endorsement  thereon  to  be  recorded.  No  12 
such  amendment  or  alteration  shall  take  effect  until  such  articles  of  13 
amendment  shall  have  been  filed  as  aforesaid.  14 


* 

Chap.  156.]  business  corporations.  1649 

1  Section  44.     If  an  increase  in  the  total  amount  of  the  capital  stock  increase  of 

2  of  any  corporation  shall  ha\e  been  authorized  by  vote  of  its  stockholders  issi,  133,  §  s. 

3  in  accordance  with  section  forty-one,  the  articles  of  amendment  shall  f87o,224f§^34. 

4  also  set  forth —  (a)  the  total  amount  of  capital  stock  already  authorized;  r.  l,  no,  §  m1 

5  (b)  the  amount  of  stock  already  issued  for  cash  payable  by  instalments  j^^iVgs' 

6  and  the  amount  paid  thereon;  and  the  amount  of  full  paid  stock  already 

7  issued  for  cash,  property,  services  or  expenses;  (c)  the  amount  of  addi- 
S  tional  stock  authorized;  (d)  the  amount  of  such  stock  to  be  issued  for 
9  cash,  property,  services  or  expenses,  respectively;    (e)  a  description  of 

10  said  property  and  a  statement  of  the  nature  of  said  services  or  expenses, 

1 1  in  the  manner  required  by  section  ten. 

1  Section  45.     If  a  reduction  of  the  capital  stock  of  any  corporation  Reduction  of 

2  shall  have  been  authorized  by  its  stockholders  in  accordance  with  section  is55,''478°§  5. 

3  forty-one,  the  articles  of  amendment  shall  also  set  forth- — (a)  the  total  fsTo.lkfs^ss. 

4  amount  of  capital  stock  already  authorized  and  issued;   (b)  the  amount  r  t.  no.lss. 

5  of  the  reduction  and  the  manner  in  which  it  shall  be  effected;   (c)  a  copy  l.^^j^gg' 

6  of  the  vote  authorizing  the  reduction.     No  reduction  of  capital  stock  1912,586. 

7  shall  be  lawful  which  renders  the  corporation  bankrupt  or  insolvent,  but 

8  the  capital  stock  may  be  reduced  by  the  surrender  by  every  stockliolder 

9  of  his  shares  and  the  issue  to  him  in  lieu  thereof  of  a  proportional  decreased 

10  number  of  shares,  if  the  assets  of  such  corporation  are  not  reduced  thereby, 

11  without  creating  any  liability  of  the  stockholders  of  such  corporation  in 

12  case  of  the  subsequent  bankruptcy  of  such  corporation. 

1  Section  46.     A  stockholder  in  any  corporation  which  shall  have  duly  Remedy  of 

2  voted  to  sell,  lease  or  exchange  all  its  property  and  assets  or  to  change  the  stockholder. 

3  nature  of  its  business  in  accordance  with  section  forty-two,  who,  at  the  224  Mass'.  20. ' 

4  meeting  of  stockholders,  has  voted  against  such  action  may,  within  ^°*' 

5  thirty  days  after  the  date  of  said  meeting,  make  a  wTitten  demand  upon 

6  the  corporation  for  payment  for  his  stock.    If  the  corporation  and  the 

7  stockholder  cannot  agree  upon  the  value  of  the  stock  at  the  date  of  such 

8  sale,  lease,  exchange  or  change,  such  value  shall  be  ascertained  by  three 

9  disinterested  persons,  one  of  whom  shall  be  named  by  the  stockholder, 

10  another  by  the  corporation  and  the  third  by  the  two  thus  chosen.     The 

11  finding  of  the  appraisers  shall  be  final,  and  if  their  award  is  not  paid  by 

12  the  corporation  within  thirty  days  after  it  is  made,  it  may  be  recovered 

13  in  contract  by  the  stockliolder  from  the  corporation.    Upon  payment 

14  by  the  corporation  to  the  stockholder  of  the  agreed  or  awarded  price  of 

15  his  stock,  the  stockholder  shall  forthwith  transfer  and  assign  the  stock 

16  certificates  held  by  him  at,  and  in  accordance  with,  the  request  of  the 

17  corporation. 

ANNUAL  reports. 

1  Section  47.     Every  corporation  shaU  annually,  within  thirty  days  Form  of  annual 

2  after  the  date  fixed  in  its  by-laws  for  its  annual  meeting,  or  within  thirty  dltion."'  '^°°' 

3  days  after  the  final  adjournment  of  said  meeting,  but  not  more  than  three  if'l.'ll.'IJi 

4  months  after  the  date  so  fixed  for  said  meeting,  prepare  and  submit  to  [Hf  {33  5  9 

5  the  commissioner  a  report  of  condition  which  shall  be  signed  and  sworn  jpM^I- 

6  to  by  its  president,  treasurer  and  a  majority  of  its  directors  stating  —       c;.  s.'eo,  55  23, 

7  1.  The  name  of  the  corporation.  1861,121. 

8  2.  The  location  (with  street  address)  of  its  principal  office  in  this  com-  iIto!  224] 

9  monwealth,  and  elsewhere  in  the  case  of  a  corporation  organized  to  do  fsT^^'no, 
10  business  wholly  outside  the  commonwealth.  ^^  *•  ^ 


id^O 


BUSINESS  CORPORATIONS. 


[Ch.'VP.  156. 


1874,349, 
P.  S.  106, 
1S87,  225. 
1896,  369. 
R.  L.  no, 
1903.  437, 
H  45.  46, 
1920,  349. 
188  Mass. 
?23  Mass. 
228  Mass. 
235  Mass. 


§1. 
§54. 


§51. 

95. 
§7. 
478. 
119 
202. 
79. 


3.  The  date  of  its  last  preceding  annual  meeting.  11 

4.  The  total  amount  of  its  authorized  capital  stock  so  far  as  it  consists  12 
of  shares  with  par  value,  and  the  total  number  of  shares  without  par  13 
value  authorized  to  be  issued;  the  amount  of  stock  with  par  value,  and  14 
the  number  of  shares  -without  par  value,  issued  and  outstanding  and  the  15 
amount  then  paid  thereon;  the  class  or  classes,  if  any,  into  which  it  is  16 
divided;  the  par  value,  if  any,  and  number  of  its  shares.  17 

5.  The  names  and  addresses  of  all  the  directors  and  officers  of  the  18 
corporation,  and  the  date  at  which  the  term  of  office  of  each  expires.  19 

6.  A  statement  of  the  assets  and  liabilities  of  the  corporation  as  of  the  20 
date  of  the  end  of  its  last  fiscal  year,  to  be  made  substantially  in  the  21 
following  form:  22 

Assets. 

Real  estate, 

Machinery, 

Merchandise    (manufactures,   merchandise,   material   and   stock   in 

process), 

Furniture  and  fixtures, 

Cash  and  debts  receivable, 

Stocks  and  securities, 

Patent  rights, 

Trade  marks, 

Good  will, 

Profit  and  loss, 

Total, 

LlABIUTIES. 

Capital  stock  (include  only  shares  having  par  value),    .... 

Accounts  payable, 

Funded  indebtedness, 

Floating  indebtedness, 

Reserve, 

Surplus, 

Profit  and  loss, 

Total, 


Filing  of  Section  48.     The  commissioner  shall  examine  such  report,  and  if 

annual  report.  .        ^      ,        ,  .  .  .  i-      i  •         i  i  i      ii 

1870. 224,  §  37.  he  finds  that  it  conforms  to  the  requirements  of  this  chapter,  he  shall 

1887.225.  endorse  his  approval  thereon;  and  upon  the  pavment  of  the  fee  required 
1896;  369:  by  section  fifty-five,  it  shall  be  filed  in  the  office  of  the  state  secretary, 
r**l!iio!^^'  who  shall  receive  and  preserve  it  in  book  form  convenient  for  reference 
S§  51, 57.  jijjj  open  to  public  inspection.  i903. 437,  §§  46, 95.  235  Mass.  79. 


Verification 
by  auditor. 
1897,  492. 
1898,64. 
R.  L.  110,  §  i 
1903, 437, 
§§  47,  95. 

1908,  300,  §  : 

1909,  326. 
1920,  349,  §  ; 


Section  49.  Such  report  of  a  corporation  which  has  a  capital  stock  of  1 
one  hundred  thousand  dollars  or  more,  for  this  purpose  counting  shares  2 
without  par  value  as  of  a  par  value  of  one  hundred  dollars  each,  shall  be  3 
accompanied  by  a  MTitten  statement  on  oath  by  an  auditor  that  such  4 
report  represents  the  true  condition  of  the  affairs  of  said  corporation  as  5 
disclosed  by  its  books  at  the  time  of  making  such  audit.  Such  auditor  6 
shall  be  employed  for  each  ensuing  fiscal  year  by  a  committee  of  three  7 
stockholders  who  are  not  directors  which  shall  be  selected  at  each  annual  8 
meeting  of  the  stockholders,  or,  if  there  are  not  three  stockliolders  other  9 
than  directors  able  and  willing  to  serve  on  such  committee,  he  shall  10 
be  employed  by  the  directors;  but  no  bookkeeper,  treasurer  or  other  11 
officer  of  the  corporation  shall  be  appointed  as  such  auditor.    The  state-  12 


Chap.  156.]  business  corporations.  1651 

13  ment  of  the  auditor  shall  be  filed  by  him  with  said  report  in  the  office  of 

14  the  state  secretary  and  shall  be  attached  to  and  form  part  of  it.    The 

15  auditor  shall  be  duly  sworn  to  the  faithful  performance  of  his  duties,  and 

16  the  officers  of  the  corporation  who  sign  said  report  of  condition  shall 

17  certify  thereon  that  the  auditor  was  duly  elected  and  quahfied,  as  herein 

18  provided. 

1  Section  50.     If  a  corporation  fails  to  file  its  report  of  condition  within  PenaUy  for 

2  the  time  required  by  law,  the  commissioner  shall  give  notice  by  mail,  repono?  ^'^ 

3  postage  prepaid,  to  such  corporation  of  its  default.     If  it  omits  to  file  is7o"224«fio 

4  such  report  within  thirty  days  after  such  notice  of  default  has  been  giA-en,  p^y'fo^g''  ^  ^• 

5  it  shall  forfeit  to  the  commonwealth  not  less  than  five  nor  more  than  ten  §§  ss.  si- 

1S87  225 

6  dollars  for  each  day  for  fifteen  days  after  the  expiration  of  the  said  thirty  isgeiseg! 

7  days,  and  not  less  than  ten  nor  more  than  two  hundred  dollars  for  each  §§  53,  g4.' 

8  day  thereafter  during  which  such  default  continues,  or  any  other  sum,  j^^lgfls.' 

9  not  greater  than  the  maximum  penalty  or  forfeiture,  which  the  court  {9°^'  jg|'  1 7- 

10  may  deem  just  and  equitable.    If  a  corporation  fails  for  two  successive 

11  years  to  file  its  annual  report  of  condition,  the  supreme  judicial  court, 

12  upon  application  by  the  commissioner,  after  notice  and  hearing,  may 

13  decree  a  dissolution  of  the  corporation. 

RECEIVERS. 

1  Section  51.     Underthe  circumstances  set  forth  in  section  fifty-two  of  ^p"i^'j";„j 

2  chapter  one  hundred  and  fifty-five,  or  if  a  judgment  has  been  recovered  ^'^^  ^^^    ^^ 

3  against  a  corporation,  and  it  has  neglected  for  thirty  days  after  demand  i--2\^56' 

4  made  on  execution  to  pay  the  amount  due  with  the  officer's  fees,  or  to  232Ma^.  38.' 

5  exhibit  to  the  officer  real  or  personal  property  belonging  to  it  and  subject 

6  to  be  taken  on  execution  sufficient  to  satisfy  the  same,  and  the  execution 

7  has  been  returned  unsatisfied,  one  or  more  receivers  may  be  appointed 

8  with  the  powers  and  duties  provided  in,  and  subject  to,  said  section. 

ENFORCEMENT  OF  PENALTIES. 

1  Section  52.     Penalties   or  forfeitures  incurred  by  any  corporation  Enforcement 

2  which  omits  to  cause  to  be  duly  filed  any  certificate  or  report  required  by  i87o™2m',1  co. 

3  section  twenty-four,  twenty-nine  or  forty-seven,  may  be  recovered  in  an  p* "'foe. 

4  action  brought  in  Suffolk  county  in  the  name  of  the  commonwealth,  flg^y^^ls 

5  or  they  may  be  recovered  by  an  information  in  equity  in  the  name  of  Jf^Lifo  §84 

6  the  attorney  general  at  the  relation  of  the  commissioner,  brought  in  the  J^o^a''^^! 

7  supreme  judicial  court  in  Suffolk  county.     Upon  such  information,  the 

8  court  may  issue  an  injunction  restraining  the  further  prosecution  of 

9  the  business  of  the  corporation  until  such  penalties  or  forfeitures,  with 

10  interest  and  costs,  have  been  paid  and  until  such  certificate  or  report 

11  has  been  filed. 

ORGANIZATION  AND  FILING  FEES. 

1  Section  53.     The  fee  for  filing  and  recording  the  articles  of  organi-  ormJ^tion 

2  zation  required  by  section  ten,  including  the  issuing  by  the  state  secretary  P|§3'^3i    2 

3  of  the  certificate  of  incorporation,  shall  be  one  twentieth  of  one  per  cent  ises!  76. ' 

4  of  the  total  amount  of  the  authorized  capital  stock  with  par  value,  and  i87i,'356' 

5  five  cents  a  share  for  all  authorized  shares  without  par  value,  as  fixed  by  1887, 225. 

6  the  articles  of  organization,  but  not  in  any  case  less  than  fifty  dollars.      r*^l.' iio,' §  86. 

1903,  437.  §§  88.  93.  1907,  396,  §  1.  1920,  349,  §  8:    598,  §  1. 


1652 


CO-OPERATFV^E    CORPORATIONS. 


[Chap.  157. 


Fees  for 
increase  of 
capital. 
1863,231,  §  2. 
1865.76. 
1871.356. 
P.  S.  106,  §  84. 
1887,  225. 
1896, 369; 
523,  §  2. 


Section  54.     The  fee  for  filing  and  recording  the  certificate  required  1 

by  section  forty-three  providing  for  an  increase  of  capital  stock  shall  be  2 

one  twentieth  of  one  per  cent  of  the  amount  of  stock  with  par  value  and  3 

five  cents  a  share  for  all  shares  without  par  value,  by  which  the  capital  is  4 

increased,  but  not  in  any  case  less  than  twenty  dollars.  5 


R.  L.  110, 
1903,  437, 


iS6. 

!§  89,  95. 


1907,  396,  §  2. 
1920,  349,  §  9;  S9S, 


220  Mass.  1S3. 

Op.  A.  G.  (1920)  158, 


Fees  for  all 
other  certifi- 
cates, state- 
ments and 
reports. 

1870,  224,  §  59. 
1875.  177,  §  4. 
1879,  202,  §  2. 
P.  S.  :06,  §  84. 
1887,  225. 
1895,  169. 


Section  55.  The  fees  for  filing  all  other  certificates,  statements  or 
reports  required  by  law  of  corporations  shall  be  ten  dollars  for  each  cer- 
tificate, statement  or  report,  but  no  fee  shall  be  paid  for  filing  the  cer- 
tificate of  change  of  officers  or  of  annual  meeting  required  by  section 
twenty-four  or  twenty-nine  or  the  annual  tax  return  required  by  sec- 
tions thirty-five  and  forty  of  chapter  sixty-three.         i896, 369;  523,  §  1. 


R.  L. 110, 1 
1903, 437,  i 


86. 
§  90,  95. 


1918,  257,  §  361. 

1919,  5. 


1920.  2;  598,  §  3. 
232  Mass.  22. 


REFERENCES. 

All  charters  subject  to  alteration  or  repeal,  Chap.  15.5,  §  3. 

General  powers  of  all  corporations,  Chap.  155,  §  6. 

Corporate  name,  Chap.  155,  §  9. 

Corporation  may  furnish  free  beds  in  hospitals,  Chap.  155,  §  12. 

Organization  of  corporations  created  by  special  act,  Chap.  155,  §§  1.3,  14. 

Meetings  may  be  called  by  a  justice  of  the  peace  in  certain  cases,  Chap.  155,  §  15. 

Right  of  fiduciaries  to  vote  as  stockholders,  Chap.  155,  §  21. 

Stock  books,  corporate  records,  access  to  records,  Chap.  155,  §  22. 

Transfer  of  stock,  Chap.  155,  §§  24-46. 

Unclaimed  dividends.  Chap.  155,  §  47. 

False  reports  relating  to  corporations,  penalty.  Chap.  155,  §§  48,  49. 

Dissolution  of  corporations,  Chap.  155,  §§  50-55. 

Injunction  against  unauthorized  business.  Chap.  155,  §  11. 

Certain  corporations  organized  under  this  chapter.  Chaps.  157  and  ISO. 

Provisions  as  to  petitions  for  legislation  to  establish,  etc.,  business  corporations, 

Chap.  3,  §  7. 
General  provisions  applicable  to  all  corporation.s,  Chap.  155. 


CHAPTER     157. 

CO-OPERATIVE  CORPORATIONS. 


Sect, 
co-operative  business  corporations. 

1.  Organization. 

2.  Distribution  of  profits  of  corporation 

organized  for  co-operative  purposes, 
etc. 

CO-OPERATrVE     AGRICULTURAL,      DAIRY      OR 
MERCANTILE   ASSOCIATIONS. 

3.  Incorporation   of   certain   co-operative 

associations. 


Sect. 

4.  Capital  stock. 

5.  Investment  of  reserve  fund,  etc. 

6.  Apportionment  of  earnings. 

7.  Certificate  of  organization   to   be   ap- 

proved and  filed,  etc.     Fee. 

8.  Use  of  word  co-operative  forbidden  to 

organizations    not    subject    to    this 
chapter. 

9.  Fee  for  filing  articles. 


Organization. 
1866,  290, 
§§  1,5. 

1870.  224,  §  3. 
1879.  210. 
P.  S.  106,  §  9. 
R.  L,  110,  §  7. 


co-operative  BUSINESS  CORPORATIONS. 


Section  1.     A  corporation  may  be  organized  under  chapters  one  1 

hundred  and  fifty-five  and  one  hundred  and  fifty-sLx,  with  shares  Iiaving  2 

par  value,  for  the  piu-pose  of  co-operation  in  carrying  on  any  business  and  3 

of  co-operative  trade.               i903, 437,  §§  ns,  95.                  1920. 349,  §  10.  4 


Chap.  157.]  co-operative  corpor.\tions.  1653 

1  Section  2.     Such  corporation  shall  distribute  its  earnings  or  profits  Distribution 

2  among  its  workmen,  purchasers  and  stockholders  at  such  times  and  in  rarporaSon 

3  such  manner  as  its  by-laws  prescribe,  but  at  least  once  in  every  twelve  co^operative"^ 

4  months.     No  distribution  shall  be  made,  unless  at  least  ten  per  cent  of  ?s66°l9o  fi" 

5  the  net  profits  have  been  appropriated  for  a  contingent  or  sinking  fund,  p%'''fo"6*'5  7•^ 

6  until  an  amount  has  accumulated  equal  to  thirty  per  cent  of  its  capital  R-  l.  no.  §  to. 

7  stock  issued  and  outstanding.     No  person  shall  hold  shares  in  any  such 

8  corporation  to  an  amount  exceeding  one  thousand  dollars  at  their  par 

9  value,  nor  shall  a  stockliolder  be  entitled  to  more  than  one  vote  upon 
10  any  subject. 

co-operative  agricultural,  dairy  or  mercantile  associations. 

1  Section  3.     Seven  or  more  persons,  residents  of  the  commonwealth,  incorporation 

2  may  associate  themselves  as  a  corporation,  association,  society,  company  CperatTve  '^°' 

3  or  exchange,  to  conduct  within  the  commonwealth  any  agricultural,  dairy  il7°o,'224°§  s 

4  or  mercantile  business  on  the  co-operative  plan.   The  word  "  co-operative"  ^  |-  ^°l^  I J^ 

5  shall  form  a  part  of  the  name  of  the  corporation,  and,  for  the  purposes  i?i3. 447,' 

6  of  this  chapter,  the  words  "association",  "company",  "exchange",  "so-  1920, 349,  §  10. 

7  ciety"  and  "union",  shall  have  the  same  signification  and  shall  import 

8  a  corporation.    The  corporation  shall  be  formed  as  provided  in  chapters 

9  one  hundred  and  fifty-five  and  one  hundred  and  fifty-six,  -with  shares 

10  having  par  value,  and  shall  be  subject  to  the  pro\'isions  thereof  so  far 

1 1  as  consistent  with  this  chapter. 

1  Section  4.     The  capital  stock  of  a  co-operative  corporation  formed  Capital  stock. 

2  under  section  three  shall  not  be  less  than  one  hundred  nor  more  than  one  isto!  224!  §  52. 

3  hundred  thousand  dollars.    No  stockholders  shall  own  shares  of  a  greater  is??!  230!  §  3. 

4  par  value  than  one  tenth  of  the  total  par  value  of  the  capital  stock,  nor  fj Is.'tI'. 

5  shall  any  member  be  entitled  to  more  than  one  vote  on  any  subject  aris-  f^  35/70: 

6  ing  in  the  management  of  the  corporation.      1913,447,13.       1915,  iis,  §  1. 

1  Section  .5.     At  any  regular  meeting,  or  at  any  duly  called  special  investment  of 

2  meeting,  at  which  a  majority  of  its  stockholders  are  present,  a  corpora-  etc. 

3  tion  formed  under  section  three  may  authorize  the  investment  of  its  re-        '    '' 

4  serve  fund  or  any  part  thereof,  first,  in  the  building  where  it  is  doing  busi- 

5  ness,  or,  second,  in  a  first  mortgage  of  real  estate  owned  and  occupied  as 

6  a  dwelling  by  any  of  its  stockholders. 

1  Section  6.     The  directors  of  every  corporation  formed  under  section  Apportionment 

2  three  shall  apportion  its  earnings  in  the  following  manner:  ileum's  12. 

3  1.  They  shall  set  aside  annually  not  less  than  ten  per  cent  of  its  net  ^^i'.iot'.irt 

4  profits  for  a  reserve  fund  until  there  is  accumulated  in  said  reserve  fund  f^^-  l^f  ^  ^'^■ 

5  an  amount  not  less  than  thirty  per  cent  of  its  paid-up  capital  stock.  5§  93, 95 ' 

6  2.  They  shall  declare  and  pay  dividends  on  the  paid-up  capital  stock  §§  s.'g. 

7.  f         n  J.  1915,  lis,  §  3. 

not  exceeding  five  per  cent  per  annum. 

8  3.  From  the  balance  of  its  annual  net  earnings  the  directors  may  ap- 

9  propriate  a  sum  not  exceeding  five  per  cent  thereof  to  be  used  in  teaching 

10  co-operation. 

11  4.  The  directors  shall  distribute  the  remainder  of  such  earnings  or  any 

12  part  thereof  by  a  uniform  dividend  upon  the  amount  of  purchases  or  sales 

13  of  shareholders,  tlirough  the  corporation,  and,  if  the  directors  so  vote, 

14  upon  the  amount  of  wages  earned  and  paid  to  employees,  except  that  in 

15  the  case  of  a  purchaser  not  a  shareholder,  who  desires  to  become  such,  a 


1654 


CO-OPERATH'E   CORPORATIONS. 


[Chap.  157. 


dl\-idend  of  one  half  the  uniform  dividend  may  be  declared  upon  such  non-  16 
shareholder's  purchases  or  sales  and  credited  to  him  on  account  of  the  17 
purchase  of  stock  for  which  he  may  subscribe.  In  productive  corpora-  18 
tions,  including  creameries,  canneries,  storages,  factories  and  the  like,  19 
dividends  shall  be  calculated  on  raw  material  delivered  to  the  corpora-  20 
tion  instead  of  on  goods  purchased.  If  the  corporation  be  both  a  pur-  21 
chasing  and  a  selling,  or  a  productive,  concern,  the  di\'idends  may  be  on  22 
both  raw  material  and  on  goods  purchased.  The  profits  or  net  earnings  2.3 
of  such  corporation  shall  be  distributed  to  those  entitled  thereto  at  such  24 
times  as  the  by-laws  prescribe,  but  at  least  once  in  every  twelve  months.     25 


Certificate  of 

organization 

to  be  approved 

and  filed,  etc. 

Fee. 

1913,  447,  §  7. 


Section  7.  Any  co-operative  association  now  organized  by  law  in  the  1 
commonwealth  for  any  of  the  purposes  mentioned  in  section  three,  and  2 
qualified  so  to  do,  may  by  a  majority  vote  of  the  stockholders  at  a  meet-  3 
ing  called  therefor  vote  to  accept  sections  three  to  seven,  inclusive,  and  4 
shall  thereupon  present  to  the  commissioner  of  corporations  and  taxation  5 
a  certificate,  signed  and  sworn  to  by  its  clerk  or  secretary,  setting  forth  a  6 
copy  of  said  vote,  the  date  when  passed,  and  such  further  evidence  as  the  7 
commissioner  may  require  of  its  legal  existence  and  of  its  intention  to  8 
accept  said  sections.  The  commissioner  shall  examine  the  certificate  and  9 
evidence  of  organization,  and,  if  it  appears  that  the  law  has  been  com-  10 
plied  with,  shall  so  certify,  and  shall  approve  the  certificate  by  his  en-  11 
dorsement  thereon,  and  thereupon  such  corporation  shall  have  the  12 
powers  and  privileges  and  be  subject  to  the  duties  and  liabilities  of  cor-  13 
porations  formed  under  section  three.  Upon  the  payTnent  of  one  dollar,  14 
said  certificate  shall  be  filed  in  the  office  of  the  state  secretary,  who  15 
shall  cause  it  and  the  endorsement  thereon  to  be  recorded.  16 


Use  of  word 
co-operative 
forbidden  to 
organizations 
not  subject  to 
this  chapter. 
1915,  118,  §  2. 

1918,  257, 
§362. 

1919,  5. 

1920,  2. 


Section  8.  Any  person,  partnership,  association  or  corporation,  do-  1 
mestic  or  foreign,  except  co-operati\'e  banks,  transacting  business  for  2 
profit  in  the  commonwealth  under  any  name  or  title  containing  the  word  3 
"co-operative",  unless  the  net  earnings  thereof  are  distributed  in  a  man-  4 
ner  permitted  for  a  co-operative  corporation  by  this  chapter,  shall  forfeit  5 
to  the  commonwealth  not  more  than  ten  dollars  for  every  day  or  part  6 
thereof  during  which  such  name  or  title  is  so  used.  Such  forfeiture  may  7 
be  recovered  by  an  information  brought  in  the  supreme  judicial  or  superior  8 
court  by  the  attorney  general,  at  the  relation  of  the  commissioner  of  cor-  9 
porations  and  taxation.  Upon  such  information,  the  court  may  issue  a  10 
temporary  or  permanent  injunction  restraining  such  person,  partner-  11 
ship,  association  or  corporation  from  doing  business  in  the  common-  12 
wealth,  or  from  so  using  such  name  or  title,  and  may  make  such  other  13 
orders  and  decrees  as  justice  and  equity  may  require.  14 


Fee  for  filing 
articles. 
1915,  118.  §  2. 


Section  9.    The  fee  for  filing  and  recording  the  articles  of  organ-  1 

ization  required  by  section  three,  including  the  issuing  by  the  state  2 

secretary  of  the  certificate  of  incorporation,  shall  be  one  twentieth  of  3 

one  per  cent  of  the  total  amount  of  the  authorized  capital  stock  as  fixed  4 

by  the  articles  of  organization,  but  in  no  case  less  than  fi\-e  dollars.  5 


REFERENCE. 
General  provisions  applicable  to  all  corporations,  Chap.  155. 


Chap.  158.] 


CERTAIN   MISCELLANEOUS   CORPORATIONS. 


1655 


CHAPTER     158. 


CERTAIN  MISCELLANEOUS   CORPORATIONS. 


Sect. 
1.  Application  of  chapter,  etc. 


ORGANIZATION. 


2.  Formation  of  corporations. 

3.  Corporations  for  furnishing  steam  and 

hot  water. 

4.  Formation  of  other  corporations. 

5.  Contents  of  agreement. 

6.  First  meeting,  how  called  and  notified. 

7.  Subscribers  to  hold  franchise;  distribu- 

tion of  shares. 

8.  Organization;    choice  of  officers;    rec- 

ords. 

9.  Certificate  of  organization  to  be  filed. 

POWERS    AND    DUTIES. 

10.  Business  powers  of  corporations. 

1 1 .  Change  of  corporate  business. 

12.  Certain  corporations  may  open  streets, 

when. 

13.  Companies   liable    to   repay   damages, 

etc. 

14.  Companies,   etc.,   to   be   regulated   by 

selectmen,  etc. 

15.  Corporations  for  propagation   of   her- 

rings and  alewives. 

16.  Interest  upon  deposits  of  customers. 

17.  Proceedings  if  rent  of  safe  deposit  boxes 

not  paid. 

OFFICERS. 

18.  Officers. 

19.  How  chosen. 

20.  Clerk,  treasurer,  bond. 

CAPITAL    STOCK. 

21.  Stockholder  to  have  certificate  of  stock. 

22.  Lost  certificates. 

23.  Capital   stock   of   companies   specially 

chartered,  how  limited. 

24.  Increase  and  reduction  of  capital  stock. 

25.  Special  stock. 

26.  Employees'  stock. 

27.  Dividends  on  employees'  stock. 

28.  Transfer  of  employees'  stock. 


Sect. 

29.  Assessments  upon  shares. 

30.  Sale  of  shares  to  pay  assessments. 

31.  Notice  of  sale,  and  transfer  of  shares 

sold. 

32.  Capital  stock,  payment  of. 

33.  Capital  stock,  how  paid  in. 

34.  Voting  by  proxy. 

35.  Quorum  of  stockholders. 

CONFIRMATION    OF    PROCEEDINGS. 

36.  Confirmation  of  proceedings. 

CERTIFICATES   AND    RETURNS. 

37.  Annual  certificate  of  condition. 

38.  Corporations  failing  to  make  such  cer- 

tificate may  be  dissolved. 

39.  Certificate  of  increase  of  capital  stock. 

40.  Certificate  of  reduction. 

41.  Examination  and  endorsement  of  cer- 

tificates. 

42.  Penalties  for  omitting  to  file  certificates. 

FEES. 

43.  Fees  for  filing,  etc.,  certificates. 

LUBILITT  OF  OFFICERS  AND  STOCKHOLDERS. 

44.  Liability  of  officers  for  debts  and  con- 

tracts. 

45.  Liability  of  stockholders  or  members. 

46.  Procedure  before  enforcing  liability. 

47.  Clerk  to  furnish  creditor  with  names  of 

officers  and  stockholders. 

48.  Penalty  for  refusing  to  give  certified 

list.     False  list. 

49.  Creditor  may  file  bill  in  equity  against 

corporation,  officers  and  stockholders. 

50.  Stockholders  to  be  assessed  in  propor- 

tion to  stock. 

51.  Suit  in  equity  not  abated  by  death  of 

one  defendant. 

52.  Suit  in  equity  when  dismissed. 

53.  Suit   in   equity   not   abated    by    non- 

joinder of  persons  liable. 

54.  Actions  may  be  defended  by  officer  or 

stockholder. 


1  Section  1.     The  provisions  of  this  chapter,  unless  expressly  limited  ^hT'tet'et"  °^ 

2  in  their  application,  and  except  so  far  as  they  are  inconsistent  with  other 

3  provisions  of  law  relative  to  particular  corporations  or  classes  of  cor- 

4  porations,  or  with  the  provisions  of  special  laws,  shall  apply  to  corpora- 

5  tions  heretofore  or  hereafter  organized  under  general  or  special  laws  of 

6  the  commonwealth  for  the  purpose  of  carrying  on  the  business  of  a  safe 

7  deposit  company  and  to  corporations  heretofore  or  hereafter  orgiinized 

8  under  general  or  special  laws  of  the  commonwealth  for  the  purpose 


1656 


CERTAIN  MISCELLANEOUS  CORPORATIONS. 


[Chap.  158. 


of  carrying  on  within  the  commonwealth  the  business  of  transmitting  9 
intelligence  by  electricity  or  of  a  heat  or  power,  gas,  electric,  canal,  10 
water  or  aqueduct  company,  and  to  any  other  corporations,  except  rail-  11 
road,  street  railway,  electric  railroad  or  trolleymotor  companies,  which  12 
now  have  or  may  hereafter  have  the  right  to  take  land  within  the  com-  13 
monwealth  by  eminent  domain,  or  to  exercise  franchises  in  public  ways  14 
granted  by  the  commonwealth  or  by  any  county,  city  or  town.  In  15 
this  chapter,  unless  the  contexi;  otherwise  requires,  the  "commissioner"  16 
means  the  commissioner  of  corporations  and  taxation.  17 


Formation  of 
corporations. 

1851,  133,  §  1. 

1852,  9. 

G.  S.  CI,  §  1. 
1870,224,  §  1. 
P.  S.  lOii,  §  6. 
R.  L.  110.  §  4. 
11  Gray,  139. 


ORGANIZATION. 

Section  2.     Any  persons,  to  the  number  hereinafter  provided,  who  1 

associate  themselves  by  a  written  agreement  hereinafter  described  with  2 

the  intention  of  forming  a  corporation  for  any  purpose  permitted  under  3 

section  one,  upon  complying  with  section  nine,  shall  be  and  remain  a  4 

corporation.  is  Gray,  211, 494.  12  Alien,  273, 302.  5 

98  Mass.  98.  101  Mass.  381,  385.  1  Op.  A.  G.  47,  185. 


Corpf 

for  furnishinp: 

steam  and  hot 

water. 

1855,  146.  §  1. 

1857.276,  §  1. 

G.S.  61.  §  15. 

1870,  224,  5  5. 

1879,  202,  I  1. 

P.  S.  106,  §  II. 

1885,  240,  §  1. 


Section  3.     For  the  purpose  of  generating  and  furnishing  steam  or  1 

hot  water  for  heating,  cooking  and  mechanical  power,  or  for  the  purpose  2 

of  generating  and  furnishing  hydrostatic  or  pneumatic  pressure  for  me-  3 

chanical  power,  in  any  town,  or  for  any  two  or  more  of  said  purposes,  4 

ten  or  more  persons  may  associate  themselves,  with  a  capital  of  not  less  5 

than  one  thousand  nor  more  than  five  hundred  thousand  dollars.  6 

157  Mass.  37. 


1891,  189,  §  1. 
1893,  397. 


R,  L.  no,  §9. 
1910,  346. 


^t°h™  TO?"  °^  Section  4.  For  the  purpose  of  carrying  on  any  other  lawful  business 
porations.  for  whicli  corporatious  may  be  formed  under  this  chapter,  three  or  more 
p.  s.' 100.  §  14.  persons  may  associate  themselves,  with  a  capital  of  not  less  than  one 
fraVais!  I.5I'  thousand  dollars.  The  capital  of  such  companies  other  than  gas  and 
27°f304.°  ^^'^'  electric  companies  shall  not  exceed  one  million  dollars. 


Contents  of 
agreement. 
1851,  133,  §  3. 
G.S.  61.  §2. 
1866.  290,  §  2. 
1870,  224,  I  7. 
p.  8.  106,  §  16. 
R.  L.  no,  §  15. 

11  Gray,  139. 
97  Mass.  494. 


Section  5.     The  agreement  of  association  shall  state  that  the  sub-  1 

scribers  thereto  associate  themselves  with  the  intention  of  forming  a  2 

corporation,  the  corporate  name  assumed,  the  purpose  for  which  it  is  3 

formed,  the  town,  which  shall  be  in  this  commonwealth,  where  it  is  4 

established  or  located,  the  amount  of  its  capital  stock  and  the  par  value  5 

and  number  of  its  shares.  6 


First  mfftinK.        Section  6.     The  first  meeting  shall  be  called  and  record  made  as     1 

how  eiilled  and  i  i>      i  i  i        i  i   ne  '  o 

notified      ^     provided  in  section  eight  or  chapter  one  hundred  and  nity-six.  2 

'  *  •  ^  -  G.S.  61.  §  3.  P.  S.  106.  §  18.  1918.  257.  5  372. 

1866,  290,  §  4.  R.  L.  110,  §  17.  1919,  5;  333,  §§  17,  IS. 

1S70,  224,  I  9.  1914,  742.  §  7.  1920.  2. 


Subscribers  to        Section  7.     Tlic  subscribcrs  to  the  agreement  of  association  shall  1 

distribution  of    hold  tlic  franchise  until  the  organization  has  been  completed;  and,  un-  2 

i87a^224,  §  30.  less  it  is  otherwise  provided  in  such  agreement,  each  subscriber  who  3 

R.L.no.l  18.  elects  to  take  such  shares  at  the  first  meeting  may  take  such  proportion  4 

uiVatl:  2(xi.   of  the  shares  of  the  capital  stock  as  the  number  of  subscribers  to  the  5 

agreement  bears  to  the  whole  number  of  shares,  or  any  part  of  such  6 

proportion,  upon  paying  the  assessments  thereon  as  called  for  by  the  7 

corporation.     All  shares  not  so  taken  shall  be  disposed  of  as  the  cor-  8 

poration  determines.  9 


ClL\P.    158.]  CERTAIN   MISCELLANEOUS  CORPORATIONS.  1657 

1  Section  8.     At  such  first  meeting,  or  at  any  adjournment  thereof,  OrganiAtion; 

2  the  incorporators  shall  organize  as  provided  in  section  nine  of  chapter  officers; 

3  one  hundred  and  fifty-six.  issi,  133,  §§4,  s.  g.  s.  6i,§5. 

1870,  224,  §  10.  p.  S.  106,  §20.  R.  L.  no.  §19.  1914,  742,  |  9. 

1  Section  9.     The  president,  treasurer  and  a  majority  of  the  directors  Certificate  of 

2  shall  forthwith  make,  sign  and  swear  to  a  certificate  setting  forth  a  true  To^hTm^°^ 

3  copy  of  the  agreement  of  association  with  the  names  of  the  subscribers  \lll[  lf%\^' 

4  thereto,  the  date  of  the  first  meeting  and  the  successive  adjournments  Jf^l'l^^tg^' 

5  thereof,  if  any,  and  shall  submit  such  certificate  and  also  the  records  of  l^''^'?~'*'fi}- 

_,,  •  I  ••  11       11  *i  X.  o.  lUo,  8  Jl. 

6  the  corporation  to  the  commissioner,  who  shall  examme  the  same,  and  R  l.  no.  §20. 

7  who  may  require  such  other  evidence  as  he  may  judge  necessary.    If  it  161  iiass'.  ssi. 

8  appears  that  the  requirements  of  the  preceding  sections,  and  of  sections  151  Mass!  ass! 

9  five  and  six  of  chapter  one  hundred  and  sixty-four  in  the  case  of  gas  and 

10  electric  companies,  preliminary  to  the  establishment  of  the  corporation 

11  have  been  complied  with,  the  commissioner  shall  so  certify  and  approve 

12  the  certificate  by  his  endorsement  thereon.    Such  certificate  shall  there- 

13  upon  be  filed  by  said  officers  in  the  office  of  the  state  secretary,  who, 

14  upon  payment  of  the  fee  hereinafter  provided,  shall  cause  the  same  with 

15  the  endorsement  thereon  to  be  recorded,  and  shall  thereupon  issue  a 

16  certificate  in  the  following  form : 

Commonwealth  of  Massachusetts. 

Be  it  known  that  whereas  (the  name  of  the  subscribers  to  the  agreement  of 
association)  have  associated  themselves  with  the  intention  of  forming  a  corpo- 
ration under  the  name  of  (the  name  of  the  corporation),  for  the  purpose  (the 
purpose  declared  in  the  agreement  of  association),  with  a  capital  of  (the  amount 
of  capital  fixed  in  the  agreement  of  association),  and  have  complied  with  the 
provisions  of  the  statutes  of  this  commonwealth  in  such  case  made  and  pro- 
vided, as  appears  from  the  certificate  of  the  president,  treasurer  and  directors 
of  said  corporation,  duly  approved  by  the  commissioner  of  corporations  and  tax- 
ation and  recorded  in  this  office:  Now,  therefore,  I,  (the  name  of  the  secretarj'), 
secretary  of  the  commonwealth  of  Massachusetts,  do  hereby  certify  that  said 
(the  names  of  the  subscribers  to  the  agreement  of  association),  their  associates 
and  successors,  are  legally  organized  and  established  as,  and  are  hereby  made, 
an  existing  corporation  under  the  name  of  (name  of  the  corporation),  with  the 
powers,  rights  and  pri\'ileges,  and  subject  to  the  Limitations,  duties  and  restric- 
tions, which  by  law  appertain  thereto. 

Witness  my  official  signature  hereunto  subscribed,  and  the  great  seal  of  the 
commonwealth  of  Massachusetts  hereunto  affixed,  this  day  of 

in  the  year  (the  date  of  execution  of  the  certificate). 

17  The  state  secretary  shall  sign  the  same  and  cause  the  great  seal  of  the 

18  commonwealth  to  be  thereto  affixed,  and  such  certificate  shall  have  the 

19  force  and  effect  of  a  special  charter  and  shall  be  conclusive  evidence  of  the 

20  existence  of  such  corporation.     He  shall  also  cause  a  record  of  such  cer- 

21  tificate  to  be  made,  and  a  certified  copy  of  such  record  may  be  given  in 

22  evidence  with  like  effect  as  the  original  certificate. 

POWERS  AND  DUTIES. 

1  Section  10.     A  corporation  may  in  its  corporate  name  purchase,  hold  ''",^.'"^of 

2  and  convey  real  and  personal  property  necessary  for  the  purposes  of  its  1l^i°'ii^1% 

3  organization;   may  carry  on  its  business,  or  so  much  thereof  as  is  con-  iss5!478[§i! 

4  venient,  beyond  the  limits  of  this  commonwealth,  and  may  there  pur-  g13.'gi.§7 

5  chase  and  hold  real  or  personal  property  necessary  for  conducting  its  Isra  224,' 

6  business;    but  it  shall  not  direct  its  operations  or  appropriate  its  funds  p^.^iol.' 

7  to  any  other  purpose  than  that  specified  in  its  agreement  of  association  ^  j^'no  §  46 


1658 


CERTAIN  MISCELLANEOUS   CORPORATIONS. 


[Chap.  158. 


1914,  742,  §  50. 
1930,  295. 
147  Mass.  224. 
157  Mass.  37. 


or  its  charter,  as  the  case  may  be,  except  as  provided  in  the  following  8 
section  and  in  sections  twenty-two  and  twenty-three  of  chapter  one  hun-  9 
dred  and  sixty-four.  No  conveyance  or  mortgage  of  its  real  property,  or  10 
lease  thereof  for  more  than  one  j'ear,  shall  be  made  unless  authorized  by  11 
a  vote  of  the  stockholders  at  a  meeting  called  for  the  purpose.  12 


Change  of 

corporate 

business. 

1875, 

177, 

§4. 

P.  S. 

106, 

§51. 

1885, 

310. 

R.  L. 

110,  §47. 

1910, 

124. 

1914, 

742, 

,§52. 

Certain  cor- 

porations 

may 

open 

streets. 

when 

1855, 

146, 

§2. 

G.S. 

61,  §  16. 

1870, 

224, 

§  56; 

353.  ! 

5  2. 

1879. 

202, 

§  1. 

last  cl. 

P.  S. 

106, 

§7.5. 

1885. 

240, 

§1. 

1896. 

544, 

§1- 

1899. 

453. 

R.  L. 

110,6  76. 

12  Allen.  75. 

188  Mass. 

242. 

220  Mass. 

575. 

Section  11.    A  corporation  may,  by  a  vote  of  all  its  stockholders  1 

at  a  meeting  duly  called  for  the  purpose,  alter,  add  to  or  change  the  2 

business  for  the  transaction  of  which  it  was  incorporated,  but  it  shall  3 

not  engage  in  any  business  which  is  not  authorized  by  law.     A  certifi-  4 

cate  setting  forth  such  alteration,  addition  or  change,  signed  and  sworn  5 

to  by  the  president,  treasurer  and  a  majority  of  the  directors,  shall  be  6 

filed  in  the  office  of  the  state  secretary.  7 

Section  12.     Corporations  organized  for  the  purpose  of  transporting  1 

the  United  States  mail,  merchandise  and  other  articles  by  means  of  2 

pneumatic  pressure  or  power,  corporations  engaged  in  or  organized  for  3 

the  purpose  of  manufacturing,  buying,  selling,  distributing  or  dealing  4 

in  artificial  cold  and  refrigerating  and  cooling  materials  and  corpora-  5 

tions  organized  for  any  of  the  purposes  mentioned  in  section  three,  may,  6 

with  the  WTitten  consent  of  the  aldermen  of  a  city  or  the  selectmen  of  7 

a  town,  dig  up  and  open  the  ground  in  any  of  the  streets,  lanes  and  8 

highways  thereof,  so  far  as  is  necessary  to  accomplish  the  objects  of  9 

the  corporation;  but  such  consent  shall  not  afi'ect  the  right  or  remedy  to  10 

recover  damages  for  an  injury  caused  to  persons  or  property  by  the  acts  1 1 

of  such  corporations.    They  shall  put  all  such  streets,  lanes  and  high-  12 

ways  into  as  good  repair  as  they  were  in  when  opened;  and  upon  failure  13 

so  to  do  witliin  a  reasonable  time  shall  be  guilty  of  a  nuisance.  14 


Companies 
liable  to  repay 
damages,  etc. 
1860.  121. 
P.  S.  106,  §  76. 
1896.  544.  §  2. 
R.  L.  110.  i  77. 


Section  13.     If  a  person  who  is  injured  in  his  person  or  property  by  1 

a  defect  in  a  highway  which  is  caused  by  the  operations  of  a  company  2 

or  corporation  described  in  the  preceding  section  in  laying  down  or  3 

repairing  its  pipes  or  otherwise  obstructing  such  way  recovers  damages  4 

therefor  of  the  town  wherein  such  injury  is  received,  such  town  shall,  if  5 

such  company  or  corporation  is  liable  for  said  damages  and  has  reason-  6 

able  notice  to  appear  and  defend  the  original  action,  be  entitled  to  recover  7 

of  such  company  or  corporation  the  damages  so  recovered  from  it  with  8 

the  taxable  costs  of  both  parties  in  such  action.  9 


Companies, 
etc..  to  be 
regiilated  by 
selectmen,  etc. 
1855,  146,  §  3. 
G.  S.  61,§  17. 
1870,  224,  §  57. 
P.  S.  106,  §  77. 
R.  L.  110,  §  78. 


Section  14.    The  aldermen  of  a  city  or  the  selectmen  of  a  town  in  1 

which  pipes  or  conductors  of  such  company  or  corporation  are  sunk  2 

may  regulate,  restrict  and  control  all  acts  and  doings  of  such  company  3 

or  corporation  which  may  in  any  manner  afi'ect  the  health,  safety,  con-  4 

venience  or  property  of  the  inhabitants  of  such  city  or  town.  5 


Corporations 
for  propagation 
of  herrings  and 
alewives. 
1866.  187.  §  1. 
1870,  224, 
§§  4.  36.  54. 
P.  S.  106. 
§§  10,  58,  74. 
R.  L.  110, 
5§8.  56.  71. 
1903.  437.  §  92. 


Section  15.     A  corporation  which  is  organized  for  the  purpose  of  1 

opening  outlets,  canals,  sluiceways  or  ditches  for  the  introduction  and  2 

propagation  of  herrings  and  alewives,  before  making  any  purchase  of  3 

real  estate  or  doing  any  acts  in  pursuance  of  its  organization,  shall  obtain  4 

the  written  authority  of  the  aldermen  of  the  city  or  the  selectmen  of  the  5 

town  within  which  its  works  are  to  be  located,  and,  within  thirty  days  6 

aftfer  obtaining  such  authority,  shall  file  a  copy  thereof,  certified  by  the  7 

city  or  town  clerk,  in  the  office  of  the  state  secretary.    Such  corporations  8 


Chap.  158.]  cert.\in  miscellaneous  corporations.  1659 

9  shall  be  organized  under  and  governed  by  chapter  one  hundred  and  fifty- 
10  six  so  far  as  applicable. 

1  Section  16.     If  a  corporation  which  has  a  franchise  in  and  the  use  of  dep"s1teof°° 

2  the  public  streets  of  a  town  for  the  supply  and  distribution  of  gas,  water,  ^go*"™^  ■ 

3  electric  light  or  power,  or  for  the  maintenance  of  communication  by  wire  R  l'  ho, 

4  or  otherwise,  holds  for  a  longer  period  than  six  months  money  which  is  I9i4, 742,  §  63. 

5  collected  in  advance  from  its  customers  to  guarantee  it  against  loss  of 

6  charges  or  tolls,  it  shall  pay  annually  upon  said  guaranty  fund  interest 

7  at  the  rate  of  four  per  cent  per  annum  to  the  depositors  thereof,  which 

8  shall  be  applied  to  the  payment  of  charges  and  tolls  by  said  depositors. 

9  The  annual  return  required  of  such  corporations  by  section  thirty-seven 
10  shall  include  a  true  statement  of  all  money,  and  of  the  value  of  any  col- 
li lateral,  so  held  as  a  guaranty  for  the  payment  of  charges  or  tolls,  specify- 
12  ing  the  amount  so  deposited  by  the  inhabitants  of  each  town.  If  such 
1.3  corporation  fails  or  neglects  to  make  such  return  or  fails,  neglects  or 

14  refuses  to  pay  such  interest  it  shall  be  punished  by  a  fine  of  not  less  than 

15  one  hundred  nor  more  than  five  hundred  dollars. 

1  Section  17.     If  the  amount  due  for  the  rent  or  use  of  a  box  or  safe  in  Proceedings  if 

2  the  vaults  of  a  domestic  corporation  organized  for  the  purpose  of  letting  depoSt  b'ixes 

3  vaults,  safes  and  other  receptacles  shall  not  have  been  paid  for  two  years,  iggy^gg.' 

4  such  corporation  may  cause  to  be  mailed,  postpaid,  to  the  person  in  ^-  ^-  ^^^'  5  38. 

5  whose  name  such  safe  or  box  stands  upon  the  books  of  such  corporation 

6  and  at  his  address  as  stated  on  said  books,  a  notice  stating  that  if  the 

7  amount  then  due  for  the  use  or  rent  of  such  safe  or  box  shall  not  be  paid 

8  within  sixty  days  from  the  date  of  such  notice  such  corporation  will 

9  cause  such  safe  or  box  to  be  opened  in  the  presence  of  its  president,  treas- 

10  urer  or  superintendent  and  of  a  notary  public,  and  the  contents  thereof, 

11  if  any,  to  be  sealed  up  in  a  package  and  placed  in  one  of  the  storage 

12  vaults  of  such  corporation.     If,  upon  the  expiration  of  said  sixty  days 

13  from  the  date  of  such  notice,  such  person  shall  have  failed  to  pay  the 

14  amount  due  for  the  use  or  rent  of  such  safe  or  box  in  full  to  the  date  of 

15  such  notice,  all  right  of  such  person  in  such  safe  or  box  and  of  access 

16  thereto  shall  cease,  and  such  corporation  may  in  the  presence  of  its  pres- 

17  ident,  treasurer  or  superintendent  and  of  a  notary  public  not  an  officer  or 

18  in  the  general  employ  of  such  corporation,  cause  such  safe  or  box  to  be 

19  opened,  and  such  notary  public  shall  remove  the  contents  thereof,  make 

20  a  list  of  the  same  and  shall  seal  up  such  contents  in  a  package  and  shall 

21  mark  thereon  the  name  of  the  person  in  whose  name  such  safe  or  box 

22  stood  on  the  books  of  such  corporation  and  his  address  as  stated  on  said 

23  books,  and  such  package  shall  in  the  presence  of  said  notary  public  and 

24  of  said  president,  treasurer  or  superintendent  be  placed  in  one  of  the 

25  storage  vaults  of  such  corporation;   and  the  proceedings  of  such  notary 

26  public,  including  said  list  of  the  contents  of  said  safe  or  box  and  his 

27  estimate  of  the  total  value  of  said  contents,  shall  be  set  forth  by  him  in 

28  his  own  handwriting  and  under  his  official  seal  in  a  book  to  be  kept  by 

29  such  corporation  for  the  purpose.    The  officer  of  such  corporation  who 

30  sent  said  written  notice  shall  in  the  same  book  state  his  proceedings  rela- 

31  tive  thereto,  setting  forth  a  copy  of  said  notice.    Both  of  said  statements 

32  shall  be  sworn  to  by  such  notary  public  and  officer,  respectively,  before 

33  a  justice  of  the  peace,  who  shall  make  certificate  thereof  in  said  book;  and 

34  said  written  statements  shall  be  prima  facie  evidence  of  the  facts  therein 


1660 


CERTAIN   MISCELLANEOUS   CORPORATIONS. 


[Chap.  158. 


set  forth  in  all  proceedings  at  law  and  in  equity  wherein  evidence  of  such  35 
facts  would  be  competent.  This  section  shall  not  impair  any  right  rela-  36 
tive  to  such  safes,  boxes  or  their  contents  which  such  corporation  would  37 
otherwise  have.  38 


Officers. 
1S08.  65, 
1829.  53. 
R.  S.  38, 
§§  2,  3. 
G.  S.  60. 
1866,  290;  §  3. 
1870,  224. 
§§  15,  17. 


3,5. 


OFFICERS. 

Section  IS.     The  business  of  every  corporation  shall  be  managed  and  1 

conducted  by  a  president,  a  board  of  not  less  than  three  directors,  a  clerk,  2 

treasurer  and  such  other  officers  and  agents  as  the  corporation  author-  3 

izes  for  that  purpose.     The  directors  shall  choose  one  of  their  number  4 

as  president.  5 

1874,  349,  §  1,  cl.  1.  P.  S.  106,  §§23,  25.  R.  L.  110,  §22. 


1808, 65™!  L  Section  19.  The  directors,  clerk  and  treasurer  shall  be  chosen  annu- 
R^s^is!  ^'  ^lly  ^y  the  stockholders  by  ballot,  and  shall  hold  office  for  one  year  and 
G  i  60  §4  until  others  are  chosen  and  qualified  in  their  stead.  The  manner  of 
1,8™' 224, 1  w.  choosing  or  appointing  all  other  agents  and  officers,  and  of  filling  all 
R.  L.  iid.'s  23.  vacancies,  shall  be  prescribed  by  the  by-laws. 

8  Gush.  93.  7  Gray,  1.  15  Gray,  211.  179  Mass.  61. 


Slr.'^bond.'^  Section  20.     The  clerk  shall  be  sworn,  shall  record  all  votes  in  a  book 

1829, 53;  1 1'  *°  ^^  ^^P*  ^°'"  th^*  purpose  and  shall  perform  all  other  duties  assigned 

G  I'  60  1 6'  ^°  ^^''^"    ^^^  treasurer  shall  give  bond  for  the  faithful  performance  of 

1870, 224,  §18.  his  duty  in  such  sum  and  with  such  sureties  as  shall  be  required  by  the 

P.  S.  106,  §  26.  1        1 

R.  L.  110,  §  24.  by-laws. 


Stockholder  to 
have  certificate 
of  stock. 
1808,  65,  §  3. 
1829,  53,  §  3. 
R.  S.  38,  §  10. 
1852,  180. 


capital  stock. 


Section  21.     Every  stockholder  shall  be  entitled  to  a  certificate  of  1 

his  stock,  sealed  with  the  seal  of  the  corporation  and  signed  by  its  treas-  2 

urer  or  assistant  treasurer  and  such  other  officer  as  the  by-laws  may  3 

designate.  g.  s.  eo,  §  10.  i870, 24,  §  23.  4 


1874,  .349,  §  1. 

p.  S.  106,  §  29. 


R.  L.  110.  §  27. 
1914,  742,  §  22. 


16  Mass.  94. 
8  Gush.  168. 


12  Gray,  213. 
8  Allen,  15. 


Lost  certifi- 
cates. 

1808,  65,  §  4. 
1829,  53,  I  4. 


Section  22.     In  case  of  the  loss  of  a  certificate,  a  duplicate  certificate     1 
may  be  issued  upon  such  reasonable  terms  as  the  directors  shall  prescribe.     2 

R.S.  38,  §12.  G._S- 6Q..5  13^.  P- ?.  106,  §  30.  1914,  742,  §  22. 


1870,  224,  §  26. 


R.  L.  110,  §  28. 


of^compaiSes  Section  23.     The  amount  of  the  capital  stock  of  every  corporation 

ter^Xhow'''""  established  by  special  charter  shall,  at  the  first  meeting  of  the  corpora- 

im^s  5  3  tion,  unless  the  charter  otherwise  provides,  be  fixed  and  limited  by  the 

1829!  53,' 1 3.  corporation  and  divided  into  shares,  of  which  a  record  shall  be  made  by 

G.  s.  6o!  §  9.  the  clerk.                                                1870, 224,  §  22. 

p.  S.  106.  §  32.  R.  L.  110,  §  29.  1914,  742,  §  28.  6  Gray,  586. 


Increase  and 
reduction  of 
capital  stock. 
1S2U,  53, 
§§3,  10. 
R.  S.  38, 
§§  11,20. 
1851,  133,  §  8. 
1855,  478,  §  5. 


Section  24.     Every  corporation,  unless  otherwise  expressly  provided,  1 

at  a  meeting  called  for  the  purpose,  may  increase  or  reduce  the  amount  2 

of  its  capital  stock  and  the  number  of  shares  therein,  within  the  amount  3 

limited  by  its  charter,  if  a  chartered  corporation,  and  by  the  provisions  4 

of  this  chapter,  if  organized  under  general  laws.  5 


1857,  24. 
G.  S.  60,  §§  11, 
21;  61,  §  6. 
1865,  283,  §  8. 


ISr.R.  290,  §  5. 
1S70,  224,  I  24. 
1871,  110,  I  2. 
1873,  39,  §  2. 


1875,  177.  §  3. 
P.  S.  13,  §  43; 
106.  §  34. 
1899,  199,  §  2. 


R.  L.  110,  5  31. 
1914,  742,  I  35. 
1920,  295. 


Ch.\P.    158.]  CERTAIN   MISCELLANEOUS   CORPORATIONS.  1661 

1  Section  25.     A  corporation  may,  by  a  vote  of  three  fourths  of  its  Special  stock. 

2  general  stockliolders  at  a  meeting  duly  called  for  the  purpose,  issue  special  g  s.'eo.  §  12. 

3  stock,  the  total  amount  of  which  outstanding  at  any  time  shall  not  exceed  r  a'i»t'|42'. 

4  two  fifths  of  the  actual  capital  paid  in  on  the  general  and  special  stock,  nin!  742' 1 31' 

5  and  shall  be  subiect  to  redemption  at  par  after  a  fixed  time  which  shall  Jfp.^y'  H*-, 

1*1  -r-TTii  c  •  11  Mass.  204. 

6  be  expressed  ni  the  certmcates.     Holders  of  special  stock  shall  be  en-  139  Mass.  s. 

7  titled  to  receive,  and  the  corporation  shall  be  bound  to  pay  thereon,  a 

8  fixed  half  yearly  smn  or  dividend,  which  shall  be  expressed  in  the  cer- 

9  tificates,  not  exceeding  four  per  cent,  and  they  shall  not  be  liable  for  the 
10  debts  of  the  corporation  beyond  their  stock. 

1  Section  26.     A  corporation  may,  by  a  vote  of  its  general  stockholders  Employees' 

2  at  a  meeting  called  for  the  purpose,  issue  employees'  stock  to  be  held  isso,  209,  §  1. 

3  only  by  the  employees  of  such  corporation.    The  par  value  of  the  shares  1914;  742;  |  32! 

4  of  such  employees'  stock  shall  be  ten  dollars,  and  the  purchasers  thereof 

5  may  pay  for  them  in  monthly  instalments  of  one  dollar  upon  each  share. 

6  The  total  amount  of  such  employees'  stock  outstanding  at  any  time  shall 

7  not  exceed  two  fifths  of  the  actual  capital  paid  in  on  the  general  and 

8  employees'  stock. 

1  Section  27.     If  a  dividend  is  paid  by  a  corporation  to  its  stock-  Dividends  on 

2  holders,  the  holders  of  employees'  stock  shall  receive  upon  each  share  stock"^""^ 

3  which  has  been  paid  for  in  full  in  time  to  be  entitled  to  a  dividend,  an  r'^l!  110!  |  Is. 

4  amount  which  shall  bear  such  proportion  to  the  amount  paid  as  a  di^'i-  ^^^*-  ^*^'  ^  ^•'■ 

5  dend  upon  each  share  of  the  general  stock  of  such  corporation  as  the  par 

6  value  of  the  shares  of  such  employees'  stock  bears  to  the  par  value  of  the 

7  shares  of  such  general  stock. 

1  Section  28.     The  shares  of  employees'  stock  shall  not  be  sold  or  trans-  Transfer  of 

2  ferred  except  to  an  employee  of  such  corporation  or  to  the  corporation  Xck"^'"'''' 

3  itself.     A  corporation  which  issues  employees'  stock  may  prescribe  by  ^^l\  \%\  1 19 

4  its  by-laws  the  number  of  shares  which  may  be  held  by  any  one  em-  i^'^'  ''^2,  §  34. 

5  ployee  and  the  method  of  transfer  and  redemption  of  such  stock  as  is 
G  held  by  any  person  after  he  ceases  to  be  an  employee  of  the  corporation. 

1  Section  29.     Every  corporation  may,  from  time  to  time  at  a  legal  Assessments 

iiipi  11  n  upon  shares. 

2  meetmg  called  for  the  purpose,  assess  upon  each  share  such  amount  of  isos.  es.  §  s- 

3  money  as  it  considers  proper,  not  exceeding  in  the  whole  the  par  value  r.''s.'38,'|  is. 

4  thereof,  unless  the  price  is  fixed  as  provided  by  section  eighteen  of  chapter  ist'o,  224,  §  2'7. 

5  one  hundred  and  sixty-four  or  section  seven  of  chapter  one  hundred  and  r.  l.*!*!!), V46- 

6  sixty-six,  and,  in  such  case,  not  exceeding  said  price.    Such  assessment  i^i*.  ^42,  §  45. 

7  shall  be  paid  to  the  treasurer  at  such  times  and  by  such  instalments  as 

8  the  corporation  directs. 

1  Section  30.     If  the  stockholder  neglects  to  pay  an  amount  duly  saie  of  shares 

2  assessed  on  his  shares  for  thirty  days  after  the  time  appointed  for  pay-  mentl!  ''''"'*^" 

3  ment,  the  treasurer  of  the  corporation  may  sell  by  public  auction  a  suffi-  {Im!  H  1 5. 

4  cient  number  thereof  to  pay  all  assessments  then  due  from  him  with  § 

5  necessary  and  incidental  charges.  isto,  224, 5  28. 


R.  S.  38,  §  14. 
15. 


P.  S.  lOB,  §  44.  1914,  742,  §  46.  14  Pick.  483. 

R.  L.  110,  §  41.  14  Mass.  286.  121  Mass.  272. 

1  Section  31.     The  treasurer  shall  give  notice  of  the  time  and  place  Notice  of  sale, 

2  appointed  for  such  sale,  and  of  the  amount  due  on  each  share,  by  adver-  shares'soid'i'^° 


1662 


CERTAIN   MISCELL.\NEOUS   CORPORATIONS. 


[Chap.  158. 


1808,  65,  §  5. 
1829,  53,  §  5. 
R.  S.38.  §  15. 
G.  S.  60,  I  16. 
1870,  224,  §  29. 
P.  S.  106,  §  45. 
R.  L.  110,  §  42. 
1914,  742,  §  47 


tising  the  same  three  weeks  successively  before  the  sale  in  a  newspaper,  3 

published  in  the  county  where  the  corporation  is  established;    and  an  4 

assignment  of  the  shares  so  sold,  made  by  the  treasurer  and  acknowledged  5 

before  a  justice  of  the  peace  and  recorded  in  the  books  of  the  corpora-  6 

tion,  shall  transfer  said  shares  to  the  purchaser,  who  shall  be  entitled  to  7 

a  certificate  therefor.  8 


Capital  stock, 
pavraent  of. 
1829,  53,  §  6. 
R.  S.  38,  §§  16, 
17. 

1851,  133,  §  4. 
1857,  276,  §  1. 
G.  S.  60,  §§  17, 
18:  61,  §  8. 
1866,  290,  §  8. 
1870,  224,  §  32. 


Section  32.     A  corporation  shall  not  begin  business  until  the  whole  1 

amount  of  its  capital  stock  has  been  paid  in  and  a  certificate  of  that  fact,  2 

and  of  the  manner  in  which  the  same  has  been  paid  in  and,  at  the  time  of  3 

making  the  certificate,  been  invested  or  voted  by  the  corporation  to  be  4 

invested,  signed  and  sworn  to  by  the  president,  treasurer  and  a  majority  5 

of  the  directors,  has  been  filed  in  the  office  of  the  state  secretary.  6 


1875,  177,  §  2. 
P.  S.  106.  §  46. 
R.  L.  110,  §43. 
6  Met.  114. 


101  Mass.  381. 
117  Mass.  476. 
152  Mass.  428. 


192  Mass.  223. 

193  Mass.  138. 
195  Mass.  461. 


Capital  stock, 
how  paid  in. 
1829,  53.  §  8. 
R.  S.  38,  §  24. 
G.  S.  60,  I  14. 
1870,  224.  §  27. 
1875,  177,  §  2. 
P.  S.  106, 
§§  47,  48. 
R.  L.  no,  §44. 

192  Mass.  223. 

193  Mass.  138. 


Section  33.     The  capital  stock,  except  as  provided  in  this  section,  1 

shall  be  paid  in  in  cash.     The  conveyance  to  the  corporation  of  real  or  2 

personal  property  at  a  fair  valuation  shall  be  a  sufficient  paying  in  of  3 

its  capital  stock  to  the  extent  of  such  value,  if  a  statement,  made,  signed  4 

and  sworn  to  by  its  president,  treasurer  and  a  majority  of  its  directors,  5 

giving  a  description  of  such  property  and  the  value  at  which  it  has  been  6 

taken  in  payment,  in  such  detail  as  the  commissioner  shall  require  or  7 

approve,  and  endorsed  with  his  certificate  that  he  is  satisfied  that  said  8 

valuation  is  fair  and  reasonable,  is  filed  with  the  state  secretary.     Such  9 

statement  shall  be  included  in  the  certificate  of  payment  of  capital  re-  10 

quired  by  the  preceding  section.     No  note  or  obligation  given  by  a  stock-  1 1 

holder,  whether  secured  by  pledge  or  otherwise,  shall  be  considered  as  12 

payment  of  any  part  of  the  capital  stock.  13 


Voting  by 

proxy. 

R.  S.  38.  §  7. 

G.  S.  60,  §  7. 

1870,  224.  §  19. 

P.  S.  106,  §  27. 


Section  34.     Absent  stockholders  may  vote  at  all  meetings  by  proxy,  1 

authorized  in  writing,  which  shall  be  executed  and  dated  within  six  months  2 

previous  to  the  meeting  at  which  it  is  used.  3 

R.  L.  110,§25.  1914,  742,  §  16.  1918,  257,  §  373.  1919,5.  1920,2. 


Quorum  of 
stockholders. 
1829,  53.  §  15. 
R.  S.  38.  §  7. 
G.S.  60,  §7. 
1870,  224.  §  20. 
P.  S.  106.  §  28. 
H.  L.  110,  §  26. 


Section  3.5.     Every  corporation  may  determine  by  its  by-laws  what  1 

number  of  stockholders  shall  attend,  either  in  person  or  by  proxy,  or  2 

what  number  of  shares  or  amount  of  interest  shall  be  represented  at  any  3 

meeting,  to  constitute  a  quorum.     If  the  quorum  is  not  so  determined,  4 

a  majority  in  interest  of  the  stockholders  shall  constitute  a  quorum.  5 


confirmation  of  proceedings. 
Confirmation  of      SECTION  36.     If  doubts  arisc  as  to  the  legality  of  the  organization  of 

proceedinEs.  .  •    i       i         ,  c  .  •  i    ■ 

1874,349,  §2.  aiiy  corporatiou  created  by  special  charter  tor  a  purpose  mentioned  in 
R.  L.  110,  §  83.  this  chapter,  which  is  in  the  exercise  of  its  franchise,  or  as  to  the  regularity 
1914, 742,  §  72.  ^^  sufficiency  of  the  proceedings  of  any  such  corporation,  whether  created 
by  special  charter  or  formed  under  general  laws,  in  consequence  of  failure 
subsequent  to  the  organization  to  comply  with  the  directions  or  require- 
ments of  any  statute,  the  stockholders,  at  a  special  meeting  called  for  the 
purpose  in  the  manner  provided  in  section  eight  of  chapter  one  hundred 
and  fifty-six  or  by  a  justice  of  the  peace  upon  the  written  request  therefor 


of  a  majority  of  the  acting  directors,  may  by  vote  confirm  such  defective  10 


Chap.  158.]  certain  miscellaneous  corporations.  1663 

1 1  proceedings  and  all  subsequent  proceedings  of  the  corporation  dependent 

12  thereon.     The  clerk  shall  thereupon  make  a  certificate  on  oath  setting 
1.3  forth  the  particular  matters  especially  causing  the  doubt,  and  a  copy  of 

14  the  call  of  the  meeting  and  of  the  vote  of  the  stockholders,  and  the  date 

15  of  holding  the  meeting,  which  he  shall  present  to  the  commissioner  who 

16  shall  examine  the  same,  and,  if  he  finds  that  this  section  has  been  complied 

17  with,  shall  so  certify  by  endorsement  thereon.     Upon  filing  the  certificate 

18  so  endorsed  in  the  office  of  the  state  secretary,  such  proceedings  shall  be 

19  taken  to  be  legal  and  valid  as  fully  as  if  the  requirements  of  the  statutes 

20  had  been  complied  with. 

certificates  and  returns. 

1  Section  37.     Every  corporation  shall  annually  file  in  the  office  of  the  Annual  certis- 

2  state  secretary,  within  thirty  days  after  the  date  fixed  in  its  by-laws  for  tion. 

3  its  annual  meeting,  or  within  thirty  days  after  the  final  adjournment  r^I'II,'!  22. 

4  thereof,  but  not  more  than  three  months  after  the  date  so  fixed  for  said  JH*;  {33; 

5  meeting,  a  certificate  signed  and  sworn  to  by  its  president,  treasurer  and  ^l^  ^°^^ 

6  at  least  a  majority  of  its  directors,  stating  the  date  of  holding  such  meet-  jSty'^fe^  ^' 

7  ing,  the  amount  of  capital  stock  as  it  then  stands  fixed  by  the  corporation,  g.  s.'eo,  §§  23, 

8  the  amount  then  paid  in,  the  name  of  each  shareholder  and  the  number  1862, 210. 

9  of  shares  standing  in  his  name,  and  the  assets  and  liabilities  of  the  cor-  isto!  224.' 1 33. 

10  poration,  in  such  form,  with  such  detail  and  of  such  date  as  the  com-  §§"'5.'"' 

11  missioner  shall  require  or  approve.     Such  certificates  shall,  by  the  act  of  p^^^fcfg^'l^ 

12  filing,  be  considered  as  recorded  and  shall  be  preserved  by  the  state  secre-  jil^'  225. 

13  tary  in  book  form  convenient  for  reference.    Such  certificate  of  a  corpora-  isgeiseg. 

14  tion  having  a  capital  stock  of  one  hundred  thousand  dollars  or  more  shall  ism.  64. ' 

15  be  verified  by  an  auditor  as  provided  in  section  forty-nine  of  chapter  one  f§  51/52." 

16  hundred  and  fifty-six.  i9i4, 742,  §§  65, 66. 

188  Mass.  478.  220  Mass.  380.  228  Mass.  202. 

1  Section  38.     If  a  corporation  fails  for  two  successive  years  to  file  such  Corporations 

2  annual  certificate,  the  supreme  judicial  court,  upon  application  by  the  mLkefsuA 

3  commissioner,  after  notice  and  a  hearing,  may  decree  a  dissolution  of  the  be'd'issoived"'^ 

4  corporation.  1877, 230,  §  2.  p.  s.  loe.  §  55. 

1887,  225.  1896,  369.  R.  L.  110,  |  53.  1914,  742,  §  67. 

1  Section  39.     A  corporation  shall,  upon  an  increase  of  its  capital  stock.  Certificate  of 

2  within  thirty  days  after  the  payment  or  collection  of  the  last  instalment  ^^tS'st'ock. 

3  thereof,  file  a  certificate  of  the  amount  of  such  increase  and  the  fact  of  g.^s.'6i,^§9.^ 

4  such  payment,  signed  and  sworn  to  by  its  president,  treasurer  and  a  p^^'fcjf'lsfi' 

5  majority  of  its  directors,  in  the  office  of  the  state  secretary  and  also,  if  the  Rj ''  ^JO'  1 1*- 

6  corporation  is  subject  to  chapter  one  hundred  and  sixty-four  or  one  i9i9]35o,'§n7. 

7  hundred  and  sixty-five,  in  the  office  of  the  department  of  public  utilities.       p-    •    ■ 

1  Section  40.     A  corporation  shall,  within  thirty  days  after  a  reduction  certificate  of 

2  of  its  capital  stock  is  voted,  file  in  the  office  of  the  state  secretary  and  is5'5?478,' §  5. 

3  also,  if  the  corporation  is  subject  to  chapter  one  hundred  and  sixty-four,  ]870,224ff35 

4  in  the  office  of  the  department  of  public  utilities,  a  copv  of  the  vote  S  ?l*S;l?I 

-  ...  I  ,        ^.  .  ,       *^  ,  ,         .  ,  '  *,  R.  L.  110,  §  55. 

5  autnorizmg  such  reduction,  signed  and  sworn  to  by  its  clerk.  loi-*.  '^2,  §  m. 

°  '       °  ''  1919,350,5117. 

1  Section  41.     The  certificate  or  copy  which  is  required  by  section  Eiamination 

2  eleven,  fifteen,  thirty-two,  thirty-seven,  thirty-nine  or  forty  to  be  filed  me'nt "f""*^ 

3  shall,  before  filing,  be  submitted  to  the  commissioner,  who  shall  examine  i87oI'224Ti  37. 


1664 


CERTAIN  MISCELL-VNEOUS  CORPORATIONS. 


[Chap.  158. 


the  same;  and  if  it  appears  to  him  to  be  a  sufficient  compliance  in  form 
with  the  requirements  of  law,  he  shall  certify  his  approval  thereof  by 


p.  S.  lOfi,  §  59. 
1887,  225. 
1896,  369. 

R.  L.'  110,'  5  57.  endorsement  upon  the  same;  but  he  shall  endorse  only  the  date  and  fact 
1  Op.  A*  0.^03.  of  submission  to  his  inspection  upon  the  copies  of  votes  of  corporations; 
^^^-  and  upon  the  payment  of  the  fee  provided  by  section  forty-three,  the 


same  may  be  filed  in  the  office  of  the  state  secretary,  who  shall  receive 
and  record  the  same  in  books  to  be  kept  for  the  purpose;  and,  upon  10 
such  filing,  the  corporation  and  its  officers  shall  be  conclusively  held  to  11 
have  complied  with  the  requirements  of  law  in  respect  to  the  filing  of  such  12 
certificate,  except  that  it  may  be  shown  in  evidence  that  the  statements  13 
made  in  such  return  were  false,  and  were  known  to  be  so  by  any  officer  14 
signing  or  making  oath  to  the  same.  15 


Penalties  for 
omitting  to  file 
certificates. 
1863,  246. 
1866,  290,  §  9. 
1870,  224,  §  60. 
1877,  57. 
p.  S.  106, 
§§  81,  82. 
1887,  225. 
1896,  369. 
R.  L.  110,  §  84. 
1914,  742,  5  89. 


Section  42.  A  corporation  which  omits  to  file  any  certificate  or  copy  1 
which  is  required  by  section  thirty-seven,  thirty-nine  or  forty  shall  forfeit  2 
two  hundred  dollars,  to  be  recovered  in  an  action  of  tort  brought  in  the  3 
name  of  the  commonwealth  in  Suffolk  county  or  in  the  county  where  4 
the  corporation  is  established ;  and  its  president,  treasurer  and  directors,  5 
for  the  time  being,  shall  in  addition  be  jointly  liable  in  a  like  amount  for  6 
such  omission;  and  all  forfeitures  by  a  corporation  under  any  provision  7 
of  this  chapter  may  also  be  collected  by  information  in  equity,  which  8 
may  be  brought  in  Suffolk  county  and  shall  be  brought  in  the  supreme  9 
judicial  court  in  the  name  of  the  attorney  general,  at  the  relation  of  the  10 
commissioner;  and  upon  such  information  the  court  may  issue  an  in-  11 
junction  restraining  the  further  prosecution  of  the  business  of  the  cor-  12 
poration  named  therein  until  such  forfeitures,  with  interest  and  costs,  are  13 
paid  and  until  the  returns  required  by  this  chapter  are  filed.  14 


fees. 


Fees  for  filing, 
etc.,  certifi- 
cates. 

p.  S.  106,  5  84. 
1887,  225. 


Of  organi- 
zation. 

1863,  231,  i  2. 
1865,  76. 

1870,  224,  §  59. 

1871,  356. 

R.  L.  no,  §  SR. 
1908,  219;  382. 
1914,  742,  §  91. 
Of  increase 
of  capital. 
1863,  231,  §  2. 
1865,  76. 
1871,  356. 


Section  43.    The  fees  for  filing  and  recording  the  following  certificates     1 
and  copies  of  votes  required  to  be  filed  with  the  state  secretary  shall  be    2 

as  follows:  1896,369.  R.  L.  110,§86.  3 


Other  cer- 
tificates. 
1870,  224.  5  59. 
1875,  177,  §  4. 
1879,  202,  §  2. 

1895,  169. 

1896,  523,  §  1. 
R.  L.  110,  §86. 
1908,  219;  382. 
1914,742,  §91. 
1915,92;  264. 
1920,  598, 
§§5.6. 


1903,  219;  382. 


1914,742,  §91. 


1915.  92;  264. 


For  filing  and  recording  the  certificates  required  by  section  nine,  in- 
cluding the  issuing  of  the  certificate  of  incorporation  by  the  state  secretary, 
one  twentieth  of  one  per  cent  of  the  amount  of  the  capital  stock  as  fixed 
by  the  agreement  of  association;  but  not  less  in  any  case  than  five 
dollars.  lais.  92;  254. 

For  filing  and  recording  the  certificate  required  by  section  thirty- 
nine,  one  twentieth  of  one  per  cent  of  the  amount  by  which  the  capital  10 
is  increased.  1896,523,  §2.  r.  l.  no,  §86.  11 

1908,  219;  382.  1914,  742,  §  91.  1915,  92;  264. 

For  filing  and  recording  the  copies  of  the  votes  or  certificates  required  12 

by  sections  eleven,  thirty-six  or  forty  of  this  chapter,  section  sixteen  of  13 

chapter  one  hundred  and  fifty-five  or  section  twenty  or  twenty-three  of  14 

chapter  one  hundred  and  sixty-four,  ten  dollars  for  each  copy  or  certificate ;  1.^ 

for  filing  and  recording  the  certificate  required  by  section  thu-ty-seven,  16 

ten  dollars;  for  filing  and  recording  any  other  certificate  required  by  law,  17 

one  dollar.  18 


Chap.  158.]  certain  miscell.'Vneous  corporations.  1665 


LIABILITY   OF   OFFICERS    AND    STOCKHOLDERS. 

1  Section  44.     The  officers  of  a  corporation  shall  be  jointly  and  sev-  Liabiiit>-  of 

2  erally  liable  for  its  debts  and  contracts  in  the  following  cases,  and  not  deb"Ld"^ 

3  otherwise:  1S21,  SS.  1S29,  53.  §§  S,  9.  contracts. 

R.  S.  3S,  §§  23-25,  28.  P.  S.  106,  §  60.  106  Mass.  131. 

G.  S.  60.  |§  17-25,  30.  1898.  266.  108  Mass.  523. 

1862,  218,  §1.  R.  L.  110,  §58.  118  Mass.  295. 

1870,  224.  §  38.  10  Grav,  232.  600.  137  Mass.  516. 

^  1875,  177,  I  2.  12  Grav.  203.  148  Mass.  226. 

1877.  230. 1  1.  6  Allen,  579.  195  Mass.  461. 

4  The  president  and  directors  shall  be  so  liable  — 

5  First,  For  making  or  consenting  to  a  dividend  if  the  corporation  is  iso  Mass.  see. 

6  or  thereby  is  rendered  insolvent,  to  the  extent  of  such  di^•idend.  "^^^ 

7  Second,  For  debts  contracted  between  the  time  of  making  or  assent-  is3  Mass.  557. 

8  ing  to  a  loan  to  a  stockliolder  and  the  time  of  its  repayment,  to  the 

9  extent  of  such  loan. 

10  Third,  If  the  debts  of  a  corporation  exceed  its  capital,  to  the  extent  of  fa*  M^f^fus 

11  such  excess  existing  at  the  time  of  the  commencement  of  the  suit  against  J|^  l\f^- 1|0- 

12  the  corporation  in  which  the  judgment  was  recovered  upon  which  the  i9SMass!76r' 

13  suit  in  equity  to  enforce  such  liability  is  brought  as  provided  in  section 

14  forty-nine. 

15  The  president,  directors  and  treasurer  shall  be  so  liable  — 

16  Fourth,  For  signing  any  statement  filed  under  section  thirty-three,  if  '^°  ^^'^^-  ^^■ 

17  the  property  mentioned  in  such  statement  is  not  conveyed  and  taken 

18  at  a  fair  valuation;   but  only  the  officers  who  sign  the  statement  shall 

19  be  so  liable. 

20  The  president,  directors  and  other  officers  shall  be  so  liable  — 

21  Fifth,  For  signing  any  certificate  which  is  required  by  law  knowing  i48  Mass.  226. 

22  it  to  be  false;  but  only  the  officers  who  have  knowledge  thereof  shall  be  is2  MaS  530' 

23  Hable.  193  Mass.  138. 

24  Sixth,  For  debts  contracted  before  the  original  capital  has  been  fully  i95  Mass.  46i. 

25  paid  in  and  the  certificate  of  such  payment  has  been  filed  in  accordance 

26  with  section  thirty-two. 

1  Section  45.     The  members  or  stockholders  in  any  corporation  shall  ^toc'khoTders 

2  be  jointly  and  severally  liable  for  its  debts  or  contracts  in  the  following  Jga'iTs'"^"' 

3  cases,  and  not  otherwise :  1826,137,  §2.  1829,53,  §§6, 7. 10, 11. 

R.  S.  38,  §§  16.  21,  1870,  224,  §  39.  6  Met.  114. 

32,  33.  1875.  177,  §  1.  8  Cush.  168. 

1851.  133,  I  15;  252.  1876,  1.  §  1.  15  Gray,  216. 

1852,9.  P.  S.  106.  §61.  2  Allen,  498. 

1855.290.  R.  L.  110,  §59.  Ill  Mass.  200. 

G.  S.  60,  §§12, 17,  22;  1914,742,174.  101  Mass.  385. 

68,  §  16.  13  Pick.  484.  127  Mass.  586. 

1862,  218,  §  2.  21  Pick.  417.  195  Mass.  461. 

4  First,  For  such  as  may  be  contracted  before  the  original  capital  is  o  Met.  lu. 

5  fully  paid  in;  but  only  those  stockholders  who  have  not  paid  in  full  the  licush.^ss. 

6  par  value  of  their  shares,  and  those  who  have  purchased  such  shares  J34  m^s.  590. 

7  with  knowledge  of  the  fact,  shall  be  liable  for  such  debts. 

8  Second,  For  the  payment  of  all  debts  existing  at  the  time  when  the  127  Mass.  595. 

9  capita!  is  reduced,  to  the  extent  of  the  amounts  withdrawn  and  paid  to 

10  stockholders. 

11  Third,  If  special  stock  is  created  under  section  twenty-five,  the  general 

12  stockholders  shall  be  liable  for  all  debts  and  contracts  until  the  special 

13  stock  shall  have  been  fully  redeemed. 


1666 


CERTAIN   MISCELLANEOUS   CORPORATIONS. 


[Chap.  158. 


127  Mass.  586. 


9  Gush.  192. 
16  Gray,  127. 
2  Allen,  498. 
6  Allen,  S79. 
118  Mass.  295. 


Fourth,  For  all  money  due  to  operatives  for  services  rendered  within  14 
six  months  before  demand  made  upon  the  corporation,  and  its  neglect  15 
or  refusal  to  make  payment.  16 

Any  such  member  or  stockliolder  who  pays,  on  a  judgment  or  other-  17 
wise,  more  than  his  proportion  of  any  such  debt  shall  have  a  claim  for  18 
contribution  against  the  other  members  or  stockholders.  19 

127  Mass.  586. 


Procedure  be- 
fore enforcing 
liability. 

1851.  315,  §  3. 

1852,  24. 

G.  S.  00.  §  .34. 
1862,  218,  §  3. 
1866,  290,  §  10. 
1870,  224,  §  40. 
P.  .S.  106,  I  62. 
R.  L.  110,  §60. 
1914,  742,  I  75. 
8  Allen,  86. 


Section  46.     A  stockliolder  or  officer  in  a  corporation  shall  not  be  1 

held  liable  for  its  debts  or  contracts  unless  a  judgment  has  been  recovered  2 

against  it  and  it  has  neglected  for  thirty  days  after  demand  made  on  3 

execution  to  pay  the  amount  due,  with  the  officer's  fees,  or  to  exhibit  4 

to  him  real  or  personal  property  of  the  corporation  subject  to  be  taken  5 

on  execution,  sufficient  to  satisfy  the  same,  and  the  execution  has  been  6 

returned  unsatisfied.  io3  Mass.  leo.  7 


108  Mass.  523. 
115  Mass.  380. 


127  Mass.  563. 
174  Mass.  434. 


180  Mass.  513. 
198  Mass.  76. 


203  Mass.  551. 
207  Mass.  441. 


Clerk  to 

furnish  creditor 
with  names  of 
officers  and 
stockholders. 
1864,219,  §  1. 
1870.224.  §41. 
P.  S.  106,  §  63. 
R.  L.  no,  §  01. 
1914,  742,  §  76. 


Section  47.    The  clerk  or  other  officer  who  has  charge  of  the  records  1 

of  a  corporation  against  which  judgment  has  been  so  recovered  and  2 

execution  so  issued  and  returned  unsatisfied,  upon  reasonable  request  of  3 

the  judgment  creditor  or  of  his  attorney,  shall  furnish  to  him  a  certified  4 

list  of  the  names  of  all  persons  who  M'ere  officers  and  stockliolders  in  5 

such  corporation  at  the  time  of  the  commencement  of  the  suit  in  which  6 

judgment  was  recovered.  7 


retaiStp%ive  Section  48.  If  an  officer  unreasonably  refuses  to  give  the  certified 
Fak'eiiit'.'^''  I'st  mentioned  in  the  preceding  section  or  wilfully  gives  a  false  list,  he 
iIto' 224' I  (io  ^'^^^^  ^^  liable  to  the  judgment  creditor  for  double  the  amount  of  all 
p.  s.'io6,'§  83.   damages  occasioned  by  such  refusal  or  false  list. 

R.  L.  no,  §85.  1914,  742,  §  90. 


Creditor  may 
file  bill  in 
equity  against 
corporation, 
officers  and 
stockholders. 
1808,  65,  §  6. 
1817.  183. 
1826,  137,  §  1. 
1829,53,  §  11. 
R.  S.  38, 
§§29-31:  44, 
§22. 

1851,315, 
Ml.  3. 
1852,  24. 
G.  S.  60, 
§§31.32,34; 
68,  §  17. 
1862,  218,  §  4. 
1866,  290,  §  10. 
1S70,  224,  §  42. 


Section  49.     After  the  execution  has  been  returned  unsatisfied,  any  1 

creditor  may  file  a  bill  in  equity,  in  behalf  of  himself  and  all  other  2 

creditors  of  the  corporation,  against  it  and  all  persons  who  were  stock-  3 

holders  therein  at  the  time  of  the  commencement  of  the  suit  in  which  4 

such  judgment  was  recovered,  or  against  all  the  officers  who  are  liable  5 

for  its  debts  and  contracts,  for  the  recovery  of  the  money  due  from  6 

tlie  corporation  to  himself  and  the  other  creditors  for  which  the  stock-  7 

holders  or  officers  may  be  personally  liable  by  reason  of  any  act  or  8 

omission  on  the  part  of  the  corporation  or  that  of  its  officers  or  any  9 

of  them,  setting  forth  tlie  judgment  and  proceedings  thereon,  and  the  10 

grounds  upon  which  it  is  expected  to  charge  the  stockholders  or  offi-  11 


cers  personally. 


12 


p.  S.  106,  §  64. 
R.  L.  no,  §  62. 
1914,  742,  §  77. 
8  Gush.  93. 

10  Gray,  232. 

11  Gray,  139. 


14  Gray,  193. 
3  Allen,  485. 
5  Allen,  398. 
9  Allen,  471. 
101  Mass.  385. 
106  Mass.  131. 


108  Mass.  404,  523. 

109  Mass.  473. 
115  Mass.  2S6,  380. 
118  Mass.  269,  295. 
127  Mass.  563, 
586,  592,  595. 


144  Mass.  399. 
156  Mass.  490. 
173  Mass.  242. 
194  Mass.  590. 
203  Mass.  551. 


Stockholders 
to  be  assessed 
in  proportion 
to  stock. 
1862,  218,  §  5. 
1870,  224,  §  43. 
P.  S.  106,  §  65. 
R.  L.  no,  §  63. 
1914,  742,  §  78. 
16  Gray,  127. 
Ill  Mass.  200. 


Section  50.  Such  sums  as  may  be  decreed  to  be  paid  by  the  stock- 
holders in  such  suit  in  equity  shall  be  assessed  upon  them  in  proportion 
to  the  amounts  of  stock  held  by  them  respectively  at  the  time  when  the 
suit  in  which  said  judgment  was  recovered  was  begun;  but  no  stock- 
holder shall  be  liable  to  pay  a  larger  sum  than  the  amount  of  stock  held 
by  him  at  that  time  at  its  par  value.  127  Mass.  ss6. 


Chap.  159.]  common  carriers.  1667 

1  Section  51.     If  a  defendant  dies  during  the  pendency  of  such  a  suit  noJVbat^d'*^ 

2  in  equity,  it  shall  not  abate  thereby;  but  his  estate  in  the  hands  of  his  by  death 

3  executor  or  administrator  shall  be  liable  to  the  same  extent  as  he  would  defendant. 

4  be  if  living.     Such  executor  or  administrator  may  voluntarily  appear  and  isto.'  sLl  §  45. 

5  become  a  party  to  the  suit  or  may  be  summoned  by  the  plaintiff.  r.l.^u6,\''65. 

1914,  742,  §  so.  173  Mass.  242. 

1  Section  52.     Such  suit  in  equity  shall  not  be  dismissed  by  the  plain-  Suit  in  equity 

2  tiff  without  an  order  of  court  and  such  notice  to  other  creditors  as  the  1862"  i'lTTs- 

3  court  may  find  reasonable  under  the  circumstances. 

1870,  224,  §  46.  P.  S.  106,  §  68.  R.  L.  106,  §  69.  1914,  742,  §  81. 

1  Section  53.     No  such  suit  in  equity  shall  be  abated  by  reason  of  the  Suit  in  equity 

2  non-joinder  of  persons  liable  as  defendants  unless  the  plaintiff,  after  SCn-loi^dero^ 

3  being  notified  by  plea  or  answer  of  the  existence  of  such  persons,  un-  i862°"2\s,''§  g] 

4  reasonably  neglects  to  make  them  parties.  i87o.  224,  §  47. 

p.  S.  106,  §  69.  R.  L.  110,  §  67.  1914,  742,  §  82.  10  AUen,  352. 

1  Section  54.     If,  in  an  action  against  a  corporation,  it  appears  to  the  Actions  may 

2  court  that  one  of  the  objects  of  the  action  is  to  obtain  a  judgment  offi^/o"'''^  ^^ 

3  against  the  corporation  in  order  to  enforce  an  alleged  liability  of  a  per-  fsw^  aa^"' 

4  son  who  has  been  or  is  a  stockholder  or  officer  thereof,  any  such  person  ffjo  004 

5  may  be  permitted,  on  petition,  to  defend  such  action,  and  in  such  case  |>^^^;i? 

6  the  court  may  require  of  him  or  of  a  person  in  his  behalf,  a  bond  with  suf-  K  ^o,  71! 

7  ficient  surety  or  sureties,  conditioned  to  pay  to  the  plaintiff  all  costs  1914;  742,'  §  ss. 

8  which  may  accrue  and  be  taxed  to  him  after  the  filing  of  said  petition.      ^^  ^'™'  *^°' 

REFERENCE. 
General  provisions  applicable  to  all  corporations,  Chap.  155. 


CHAPTER     159, 

COMMON  CARRIERS. 


Sect. 

common  carriers  in  general. 

1.  Discrimination  by  carriers  forbidden. 

2.  Penalty. 

3.  Limitation  of  liability. 

4.  Railroads,  etc.,  not  to  require   indem- 

nity from  employees. 

5.  General  agent  for  foreign  expresses. 

6.  Agent  to  give  bond. 

7.  Penalty  on  agent  of  delinquent  com- 

pany. 

8.  Protection  of  business  of  carriers. 

9.  Provisions  applicable. 

SUPERVISION   AND    REGULATION. 


Sect. 

12.  Carriers  subject  to  jurisdiction. 

13.  Inquiry  into  rates,  etc. 

14.  Regulation  of  rates,  etc. 

15.  Free  service,  tickets,  etc.,  prohibited, 

except,  etc. 

16.  Hearings  upon  service,  etc.     Use  of 

electric  power. 

17.  Charges  for  ser\-ice  regulated. 

IS.  Fixing  of  rates,  charges,  etc.,  subject 
to  approval  of  department. 

19.  Schedules  of  rates  to  be  filed,  etc. 

20.  Hearing   upon    changes   in   schedules 

and  action  thereon. 

21.  Establishment  of  through  routes,  joint 


10.  Duties  of  department  of  public  utili-  rates,     etc.,     for     passengers     and 

ties.  freight. 

11.  Records.  I      22.  Department  may  require  signals 


1668 


COMMON   CARRIERS. 


[Chap.  159. 


Sect. 

23.  Repairs,  fares,  etc. 

24.  Hearings  and  examinations  as  to  cer- 

tain common  carriers  on  complaint 
of  mayor,  etc. 

25.  Public  hearings.     Notice  to  members 

of  general  court. 

26.  Valuation  of  properties. 

27.  Inspection  and  investigation. 

28.  Notice  of  accidents. 

29.  Investigation  of  accidents. 

30.  Complaint  of  defect. 

31.  Forms  of  accounts,  returns,  etc. 

32.  Returns,  form  and  time  for  filing. 

33.  Returns  of  persons  doing  an  express 

business. 

34.  Examination  of  books,  etc. 

35.  Examination  of  condition  of  company 

on  request  of  director,  etc. 

36.  Annual  audit. 

37.  Service  of  orders  of  department. 

38.  Effect  of  request  or  advice  of  depart- 

ment. 

39.  Enforcement  of  law  through  attorney 

general. 

40.  Enforcement  of  orders  by  court. 

41.  Representation  of  department  at  hear- 

ings. 

42.  Summoning  witnesses.    Fees. 

43.  Annual  report. 

44.  Penalty  for  improperly  divulging  in- 

formation obtained  by  examination 
or  audit. 


COMMON       CARRIERS       OF       PASSENGERS       BY 
MOTOR   VEHICLE. 

45.  Certain   motor   carriers   must    be    li- 

censed, etc. 

46.  Local  rules  and  regulations  for  certain 

motor  carriers.     Bond. 

47.  Rules  and  regulations  as  to  motor  car- 

riers by  department. 

48.  Section  40  to  apply. 

49.  Penalty. 


ISSUE    OP    STOCK     OR    BONDS     OF     RAILROADS 
AND    STREET    R.4ILWATS. 

50.  Price  at  which  railroad,  etc.,  corpora- 

tions shall  offer  new  stock  to  their 
stockholders,  etc. 

51.  Stock  may  be  sold  at  auction  in  certain 

cases. 

52.  Determination   by  department  as  to 

amount  of  stock. 

53.  Computing  amount  of  capital  stock  as 

basis  for  issue  of  bonds. 


TRANSFER    OF   FRANCHISE    OR    PROPERTY    OF 
RAILROADS   AND    STREET    RAILWAYS. 

54.  Transfers  to  be  approved. 

55.  Conditional  sale  of  rolling  stock. 

56.  Recording. 


Sect. 

CRCSSINGS   AT   GRADE    BETWEEN   RAILROADS 
AND    STREET    RAILWAYS. 

57.  Grade  crossings  regulated. 

58.  Supervision  by  department  of  cross- 

ings. 

ALTER.iTION    OF    CROSSINGS. 

59.  Alteration  of  crossings. 

60.  Land  may  be  taken  and  damages  as- 

sessed. 

61.  Award  to  be  made  by  a  commission. 

62.  Commission,  appointment  of. 

63.  Revision  by  jury. 

64.  Recovery  after  alteration  of  propor- 

tion of  expense. 


65. 
66. 
67. 
68. 
69. 

70. 

71. 
72. 
73. 


76. 


78. 
79. 
SO. 

81. 

82. 


ABOLITION    OF    GRADE    CROSSINGS. 

Commission  to  abolish  grade  crossings. 

Costs. 

Expense  of  plans. 

Payment. 

Petition  may  embrace  several  cross- 
ings. 

Commission   to  prescribe   the   altera- 
tions. 

Duties  of  engineer. 

State  highways. 

Assessment   or   contribution    deemed 
part  of  the  value  of  the  property. 

Report  of  commission. 

Damages. 

Settlement  of  claim  barred  by  limita- 
tion. 

Maintenance    of    crossing     and     ap- 
proaches. 

Auditor,  duties,  compensation. 

Enforcenient  of  law. 

Proceedings    upon    agreement    as    to 
alterations. 

Department  to  approve  plan,  etc.,  be- 
fore final  decree. 
Certain  provisions  not  to  apply. 


RAILROAD    AND    STREET    RAILWAY    BRIDGES. 

83.  Examination    of   railroad    and    street 

railway  bridges. 

84.  Maintenance  and  repair. 

85.  Enforcement. 

RAILROAD,     STREET     RAILWAY     AND     STEAM- 
BOAT RELIEF    CORPORATIONS. 

86.  Railroad,  etc.,  relief  corporations. 

87.  By-laws,  returns. 

88.  Railroad,  etc.,  company  may  associate 

with  employees. 

RAILROAD,      STREET     RAILWAY     AND     STEAM- 
BOAT  POLICE. 

89.  Railroad,  etc.,  police. 

90.  Copy  of  appointment  to  be  filed. 

91.  Term  of  office. 

92.  Badges. 

93.  Powers  of  police. 


Chap.  159.] 


COMMON   CARRIERS. 


1669 


Sect. 

94.  Arrest.     Duties  of  police. 

95.  Compensation.     Liability. 

ACTIONS    AGAINST     pAILROADS     AND    STREET 
R.1ILWATS  FOR  LABOR  AND  MATERI.ILS. 

96.  Action  against  owner  of  railroad   or 

railway  for  labor  and  materials. 

97.  Contractor  not  to  have  such  action. 

98.  Notice  of  intention  to  be  filed. 

99.  Statement  of  amount  of  debt  to  be 

filed. 
100.  Limitation  of  actions. 


Sect. 

offe.vces    relating    to    railroads    and 
street  railways. 

101.  Evasion  of  pajinent  of  fare. 

102.  Torpedo  to  be  marked. 

103.  Injury  to  signals. 

104.  Throwing  missiles,  etc. 

GENERAL     JURISDICTION      AND      POWERS     OF 
THE    DEPARTMENT. 

105.  General  jurisdiction,  powers,  etc.,   of 

the  department  not  to  be  limited, 
etc. 


COMMON  CARRIERS  IN  GENERAL. 

1  Section  1.    Every  common  carrier  of  merchandise  or  other  property  Discrimination 

2  shall  receive,  transport  and  forward  all  property  offered  for  such  pur-  fo^rWdden" 

3  poses  by  other  such  carriers  as  promptly,  faithfully  and  impartially,  at  r's.'t^s^^i  i.^' 

4  as  low  rates  of  charge,  and  in  a  manner  and  on  terms  and  conditions  as  ^-  ^- ""'  ^  ^■ 

5  favorable  to  the  carrier  offering  such  property,  as  he  on  the  same  day  and 

6  at  the  same  place  receives,  forwards  and  transports,  in  the  ordinary 

7  course  of  business,  property  of  a  like  description  offered  by  persons  other 

8  than  such  carriers.     Such  carrier  shall  not  discriminate  against  any  par- 

9  ticular  person  or  subject  him  to  any  undue  or  unreasonable  prejudice 

10  or  disadvantage.    The  supreme  judicial  or  superior  court  shall  have 

11  jurisdiction  in  equity  to  enforce  this  section. 

1  Section  2.     Every  such  carrier  who  wilfully  neglects  or  refuses  to  Penalty. 

2  comply  with  the  preceding  section  shall  forfeit  not  less  than  fifty  nor  k*s.'7^3!^§  I.^' 

3  more  than  five  hundred  dollars,  to  the  person  offering  the  property  for  ^'  ^'  ^°'  ^  ^" 

4  transportation. 

1  Section  3.     No  common  carrier  of  passengers  shall,  by  rule,  regula-  Limitation 

2  tion,  sign  or  otherwise,  require  passengers  whom  it  suffers  to  enter,  or  leave  igil*  120^' 

3  by,  a  door  of  its  car  or  train,  to  do  so  at  their  own  risk;   and  no  such 

4  passenger  shall  be  prevented  from  recovering  compensation  in  damages 

5  for  any  injury  by  reason  of  any  such  rule,  regulation,  sign  or  requirement. 

1  Section  4.    A  corporation  engaged  in  carrying  passengers  or  in  Railroads,  etc., 

2  transporting  freight  for  hire  shall  not  require  or  receive  from  a  person  rn°dVmm>Trom 

3  who  is  employed  or  about  to  be  employed  by  it  a  bond  or  other  security,  isno^m''' 

4  either  with  or  without  surety,  to  indemnify  such  corporation  against  fgoy;  5^^;  |  H 

5  loss  or  damage  to  other  persons  or  to  property  resulting  from  the  act  or 

6  neglect  of  such  person,  except  a  bond  to  account  for  money  or  other 

7  property  of  such  corporation.    A  corporation  or  a  person  in  its  behalf 

8  who  violates  the  provisions  of  tliis  section  shall  be  punished  by  a  fine 

9  of  not  more  than  fifty  dollars  for  the  first  offence  and  of  not  more  than 
10  one  hundred  dollars  for  a  subsequent  offence. 


1  Section  5.     Every  association  of  persons  who  are  not  inhabitants  of  f^r°fo'r''eig''n^°* 

2  this  commonwealth  which  does  an  express  business  therein  shall  in  writ-  jg^J'^fyj-  s  1 

3  ing  appoint  a  person,  who  is  a  citizen  and  a  resident  thereof,  to  be  a  gen-  p  s.'ts,  §  3. 

4  eral  agent,  upon  whom  all  lawful  processes  against  such  persons  may  be  R.  l!  70.  §  3. 

5  served  with  like  effect  as  if  served  on  said  persons;  and  said  writing  or 


1670 


COMMON   CARRIERS. 


[Chap.  159. 


power  of  attorney  shall  contain  an  agreement  on  the  part  of  the  persons  6 
making  it  that  the  service  of  any  lawful  process  against  it  or  them  on  7 
said  general  agent  shall  be  of  the  same  legal  force  and  validity  as  such  8 
service  on  said  persons  or  any  of  them.  The  power  of  attorney  shall  be  9 
filed  in  the  office  of  the  state  secretary,  and  copies  certified  by  him  shall  be  10 
taken  as  sufficient  evidence  and  proof  thereof.  Such  agency  shall  be  con-  11 
tinued  so  long  as  such  express  business  is  done  in  this  commonwealth,  and  12 
the  power  of  attorney  shall  not  be  revoked  until  a  similar  power  is  given  13 
to  another  person  and  filed  as  aforesaid.  14 


Agent  to 
give  bond. 
1871,  371.  §  2. 
P.  S.  7.3,  §  4. 
R.  L.  70,  §  4. 


Section  6.     Such  general  agent  shall  give  bond  to  the  state  treasurer,  1 

with  one  or  more  sureties  to  be  approved  by  him,  in  the  sum  of  two  thou-  2 

sand  dollars,  conditioned  that  he  will  accept  service  of  all  lawful  process  3 

against  his  principal.  4 


Penalty  on 
agent  of 
delinquent 
company. 
1871,371,  §3. 
P.  S.  73.  §  5. 
R.  L.  70,  §  5. 


Section  7.     No  person  shall  act  for  more  than  thirty  days  as  such  1 

general  agent  unless  the  two  preceding  sections  have  been  complied  2 

with;    and  whoever  so  acts  without  such  compliance  shall  forfeit  not  3 

more  than  five  hundred  dollars.  4 


Protection  of 
business  of 
carriers. 
1895,  481. 
R.  L.  70,  §  7. 


Section  8.     Whoever,  with  intent  to  defraud  or  injure  in  his  business  1 

a  person  licensed  by  any  town  as  a  carrier  of  goods  for  hire,  takes  from  2 

the  order  box  of  such  carrier  or  effaces  or  destroys  any  order  to  or  direc-  3 

tion  for  such  carrier  to  call  for  and  receive  goods  to  be  transported  by  4 

such  carrier,  or  appropriates  any  such  order  or  direction  or  makes  use  of  5 

the  information  derived  therefrom  for  the  purpose  of  executing  the  same,  6 

or  for  the  purpose  of  transporting  any  goods  or  receiving  the  hire  therefor,  7 

shall  be  punished  by  a  fine  of  not  more  than  twenty-five  dollars.  8 


Provisions 
applicable. 
1894,  469,  §  4. 
R.  L.  70,  §  8. 
201  Mass.  564. 


Section  9.    Sections  one  hundred  and  ninety-tliree,  two  hundred  and  1 

six  and  two  hundred  and  tliirty-three  of  chapter  one  hundred  and  sixty  2 

shall  apply  to  steamboat  lines  witliin  the  commonwealth  and  to  persons  3 

who  are  engaged  or  who  desire  to  engage  in  the  express  business  thereon.  4 


Duties  of 
department  of 
public  utilities. 


SUPERVISION  AND   REGUL.\TION. 


Section  10.     The  department  of  public  utilities,  in  this  chapter  called     1 
the  department,  shall  enforce  tliis  chapter.  i9i9, 350,  §  117.  2 


Records. 
1869,  408,  §  7, 

^^s'ni'ii'    ™^^t  relative  to  common  carriers  shall  be  entered  of  record 

R.  L.  Ill,  §8.  1906,  463. 1,  §§  1,68,  1913,  784,  §  7. 

1902,  432,  §  1.  Ill,  §  158.  205  Mass.  94. 


Section  11.     Every  vote,  recommendation  and  order  of  the  depart-     1 

2 


Carriers 
subject  to 
jurisdiction. 
1869,  408, 
K2,  5. 
1874,  372,  §  7. 
P.  S.  112,  §  14. 
R.  L.  Ill,  §12. 

1903,  173. 

1904,  265. 
1906,  266:  433, 
§  1;  463,  I, 

§§  6,  7,  68,  III, 
§158. 


Section  12.     The  department  shall,  so  far  as  may  be  necessary  for  the  1 

purpose  of  carrying  out  the  provisions  of  law  relative  thereto,  have  gen-  2 

crai  supervision  and  regulation  of,  and  jurisdiction  and  control  over,  the  3 

following  services,  when  furnished  or  rendered  for  public  use  within  4 

the  commonwealth,  and  all  persons,  firms,  corporations,  associations  and  5 

joint  stock  associations  or  companies  furnishing  or  rendering  any  such  6 

service  or  services,  in  sections  ten  to  forty-four,  inclusive,  collectively  7 

called  common  carriers  and  severally  called  a  common  carrier:  8 


Chap.  159.]  common  carriers.  1671 

9       (a)  The  transportation  or  carriage  of  persons  or  property,  or  both,  wis,  7S4, 

10  between  points  within  the  commonwealth  by  railroads,  street  railways,  i9i6,  aee.  §  c. 

11  in  this  chapter  called  railways,  electric  railroads,  trackless  trolleys  and  226f§^.' 

12  steamships,  including  express  service  and  car  service  carried  on  upon  or  j^ifyfly'i, 

13  rendered  in  connection  with  such  railroads,  railways,  electric  railroads,  tl,^;?'^-  „. 

'  »-     '  '   201  Mass.  564. 

14  trackless  trolleys  or  steamships.  224  .Mass.  365. 

15  (b)  The  carriage  of  passengers  for  hu-e  upon  motor  vehicles  as  provided  ' 

16  in  sections  forty-five  to  forty-nine,  iiiclusi\e,  of  this  chapter  and  section 

17  forty-four  of  chapter  one  hundred  and  sixty-one,  but  only  to  the  extent 

18  provided  in  said  sections. 

19  (c)  The  operation  of  all  conveniences,  appliances,  facilities  or  equip- 

20  ment  utilized  in  connection  with,  or  appertaining  to,  such  transportation 

21  or  carriage  of  persons  or  property  or  such  express  service  or  car  service, 

22  by  whomsoever  owned  or  provided,  whether  the  service  be  common 
2.3  carriage  or  merely  in  facilitation  of  common  carriage. 

24  (d)  The  transmission  of  intelligence  within  the  commonwealth  by 

25  electricity,  by  means  of  telephone  lines  or  telegraph  lines  or  any  other 

26  method  or  system  of  communication,  including  the  operation  of  all 

27  conveniences,  appliances,  instrumentalities,  or  equipment  appertaining 

28  thereto,  or  iitilized  in  connection  therewith. 

1  Section  13.     The  department  may  inquire  into  the  rates,  charges,  inquiry  into 

2  regulations,  practices,  equipment  and  services  of  common  carriers  in  is69,'408', 

3  this  commonwealth,  and  elsewhere,  rendering  any  service  of  a  kind  sub-  1S74',  372,  §  7. 

4  ject  to  its  jurisdiction.         p.  s.  112,  §14.  r.  l.  111,  §12.  1903,173. 

1904,  265.  1911,  7SS,  §§  1,  2.  224  Mass.  365. 

1906,  463,  I,  §§  6,  7.  68.  1913,  784,  §  10.  247  U.  S.  105. 

1  Section  14.     Whenever  the  department  shall  be  of  opinion,  after  a  Regulation 

2  hearing  had  upon  its  own  motion  or  upon  complaint,  that  any  of  the  rates,  r.  's\  39',  §  sk 

3  fares  or  charges  of  any  common  carrier  for  any  services  to  be  performed  1870,325!  ji^' 

4  within  the  commonwealth,  or  the  regulations  or  practices  of  such  common  j^'/^j  ^^^' 

5  carrier  affecting  such  rates,  are  unjust,  unreasonable,  unjustly  discrim-  ^  s.  m,  §  iso. 

6  inatory,  unduly  preferential,  in  any  wise  in  violation  of  any  provision  Jj^^^'^^IJi'' 

7  of  law,  or  insufficient  to  yield  reasonable  compensation  for  the  service  inos,  599,  §  4. 

8  rendered,  the  department  shall  determine  the  just  and  reasonable  rates,  lois!  7S4',  1 22. 

9  fares  and  charges  to  be  charged  for  the  ser\'ice  to  be  performed,  and  210  Mai's.  159. 

10  shall  fix  the  same  by  order  to  be  served  upon  every  common  carrier  by  557  jjUg^;  \lf 

1 1  whom  such  rates,  fares  and  charges  or  any  of  them  are  thereafter  to  be  |^^  u  T 10?' 

12  observed.    Every  such  common  carrier  shall  obey  every  requirement  of  95v,nS„ 

13  every  such  order  ser\'ed  upon  it,  and  do  everything  necessary  or  proper 

14  in  order  to  secure  absolute  compliance  with  every  such  order  by  all  its 

15  officers,  agents  and  employees.    If,  upon  investigation,  the  department 

16  finds  that  in  any  case  it  is  consistent  with  the  public  interests  to  author- 

17  ize  a  common  carrier  to  make  its  charge  for  transportation  less  for  a 

18  longer  than  for  a  shorter  distance,  the  department  may  grant  such  author- 

19  ity  and  may  from  time  to  time  modify  or  revoke  the  same. 

20  If  comj^laint  is  made  to  the  department  concerning  any  rate,  fare  or 

21  charge  demanded  and  collected  by  any  railroad  corporation  for  any  serv- 

22  ice  performed  and  the  department  finds  after  hearing  and  in\estigation 

23  that  an  unjustly  discriminatory  rate,  fare  or  charge  has  been  collected 

24  for  any  service,  the  department  may  order  the  railroad  corporation 

25  which  has  collected  the  same  to  make  due  reparation  to  the  person  Mho 

26  has  paid  the  same,  with  interest  from  the  date  of  the  pajTuent  of  such 


1672 


COMMON  CARRIERS. 


[Chap.  159. 


unjustly  discriminatory  amount;  but  such  order  of  reparation  shall  cover  27 
only  pajTQents  made  within  tw  o  years  before  the  date  of  filing  the  petition  28 
seeking  to  have  reparation  ordered.  Such  order  may  be  made  without 
formal  hearing  whenever  the  railroad  corporation  ai?ected  shall  assent 
in  waiting  thereto,  or  file  or  join  in  a  petition  therefor,  but  in  no  case 
shall  any  such  order  be  made  until  the  department  shall  be  satisfied  by 
such  investigation  as  may  be  necessary  that  the  rate,  fare  or  charge 
collected  was  in  fact  unjustly  discriminatory. 


29 
30 
31 
32 
33 
34 


Free  service, 
tickets,  etc., 
prohibited, 
except,  etc. 
1908,  599,  §  4. 

1913,  784,  §  IS. 

1914,  679. 
34  U.  S.  Sts. 
at  L.  584. 
227  Mass.  493. 


Section  15.  Except  as  provided  by  section  two  hundred  of  chapter  1 
one  hundred  and  sixty,  no  common  carrier  shall,  directly  or  indirectly,  2 
issue  or  give  any  free  service,  free  tickets,  free  pass  or  free  transportation  3 
for  passengers  or  property  between  points  within  the  commonwealth;  4 
but  this  section  shall  not  proliibit  any  railroad  corporation  or  railway  5 
company  from  giving  free  or  reduced  rate  service  to  policemen,  letter  6 
carriers  and  firemen  while  in  uniform  or  engaged  in  the  discharge  of  their  7 
duties,  or  prohibit  any  common  carrier  from  giving  free  or  reduced  rate  8 
ser\'ice  to  its  employees,  or  in  cases  of  public  emergency,  or  for  such  9 
charitable  purposes  as  may  be  approved  by  the  department,  nor  proliibit  10 
any  telephone  or  telegraph  company,  unless  the  department  shall  other-  11 
wise  order,  from  giving  service  at  reduced  rates  to  the  commonwealth  12 
or  to  any  city  or  town;  nor  shall  this  section  prohibit  the  commissioners  13 
of  tlie  department,  its  experts,  inspectors  and  counsel  from  being  trans-  14 
ported  over  the  railroads  and  the  railways  of  the  commonwealth  free  of  15 
charge  while  engaged  in  the  performance  of  their  duties;  nor  shall  this  16 
section  prohibit  the  giving  by  any  such  common  carrier  of  free  or  reduced  17 
rate  service  to  the  classes  defined  and  provided  for  in  the  act  of  congress  18 
entitled  "An  act  to  regulate  commerce"  and  acts  amendatory  thereof.       19 


Hearings  upon 
service,  etc. 
Use  of  electric 
power. 
18G9,  40S, 
§§2,5. 

1874,  372,  §  7. 
P.  S.  112.  §  14, 
R.  L.  111,§  12. 
1906,  267; 
463,  I,  §  68. 
1911,  755,  §  2. 
1913,  784,  I  23. 
1916,  244. 


Section  16.  If  the  department  is  of  opinion,  after  a  hearing  had  1 
upon  its  own  motion  or  upon  complaint,  that  the  regulations,  practices,  2 
equipment,  appliances  or  service  of  any  common  carrier  are  unjust,  un-  3 
reasonable,  unsafe,  improper  or  inadequate,  the  department  shall  deter-  4 
mine  the  just,  reasonable,  safe,  adequate  and  proper  regulations  and  5 
practices  thereafter  to  be  in  force  and  to  be  observed,  and  the  equip-  6 
ment,  appliances  and  service  thereafter  to  be  used,  and  shall  fix  and  7 
prescribe  the  same  by  order  to  be  served  upon  every  common  carrier  8 
to  be  bound  thereby.  The  department  may  after  such  a  hearing,  order  9 
any  railway  company  to  build  and  operate  any  just  and  reasonable  10 
extensions  of  its  lines  for  which  it  may  have  been  or  may  be  granted  11 
locations  and  order  from  time  to  time  that  a  railroad  company  shall  12 
operate  its  lines,  of  standard  gauge,  or  such  parts  thereof  as  the  depart-  13 
ment  shall  prescribe,  by  electric  power  instead  of  steam  power,  and  in  its  14 
order  shall  prescribe  the  time  within  which  the  work  of  electrification  15 
shall  be  done.  Before  making  such  order,  the  department  shall  con-  16 
sider  the  relative  importance  and  necessity  of  the  changes  in  any  spe-  17 
cific  regulations,  practices,  ecjuipment  and  appliances  proposed  to  be  IS 
included  therein  and  of  other  changes  which  may  be  brought  to  its  19 
attention  in  the  course  of  the  hearing,  the  financial  ability  of  the  carrier  20 
to  comply  with  the  requirements  of  the  order,  and  the  effect  of  the  car-  21 
rier's  compliance  therewith,  upon  its  financial  ability  to  make  such  other  22 
changes,  if  any,  as  may  be  deemed  by  the  department  of  equal  or  greater  23 
importance  and  necessity  in  the  performance  of  the  service  which  the  24 


Chap.  159.]  common  c.\rriers.  1673 

25  carrier  has  professed  to  render  to  the  public.     Every  such  common  carrier 

26  shall  obey  every  requirement  of  every  such  order  so  served  upon  it,  and 

27  do  ever\'thing  necessary  or  proper  in  order  to  secure  absolute  compliance 

28  with  every  such  order  by  all  its  officers,  agents  and  employees. 

1  Section  17.     All  charges  made,  demanded  or  received  by  any  com- Charges  for 

2  mon  carrier  for  any  service  rendered  or  performed,  or  to  be  rendered  reeuiated. 

3  or  performed  by  it  or  in  connection  therewith  in  the  conduct  of  its  22l\ia*53'.  lea.' 

4  common  carrier  business,  or  made,  demanded  or  received  by  any  two 

5  or  more  common  carriers  joining  in  rendering  or  performing  any  service 

6  shall  be  just  and  reasonable,  and  every  such  common  carrier  and  any 

7  two  or  more  such  common  carriers  joining  in  rendering  or  performing 

8  any  service  shall  be  entitled  to  make,  demand  and  receive  just  and 

9  reasonable  charges  for  any  such  serA'ice,  and  every  unjust  or  unreason- 

10  able  charge  is  hereby  prohibited  and  declared  unlawful;    but  charges 

11  heretofore  established  and  set  out  in  any  schedule  filed  as  provided  in 

12  section  nineteen  shall  be  deemed  prima  facie  lawful  until  changed  or 

13  modified  by  the  department  under  the  powers  conferred  upon  it  by 

14  this  chapter,  but  this  provision  shall  not  give  to  such  rates  any  greater 

15  weight  as  evidence  of  the  reasonableness  of  other  rates  than  they  would 

16  otherwise  have. 

« 

1  Section  IS.     Subject  to  the  powers  of  the  department  to  regulate  Fixing  of 

2  and  prescribe  rates  and  charges,  a  common  carrier  may  make  com-  etc ,  subject  ' 

3  modity,  transit  or  other  classes  of  rates.    The  fiu-nishing  by  any  common  o?  department. 

4  carrier  of  any  service  at  the  rates  and  upon  the  terms  and  conditions  224 Vatt'.  IrI.' 

5  pro\ided  for  in  any  existing  contract  executed  prior  to  July  first,  nine-  232 Mass. 309. 

6  teen  hundred  and  thirteen,  shall  not  constitute  a  discrimination  unless 

7  the  department  so  determines.    The  department  shall  not  be  prevented 

8  from  taking  such  action  as  it  deems  proper  by  any  commitment  or 

9  agreement  of  a  common  carrier  entered  into  by  reason  of  any  require- 

10  ment  or  recommendation  of  any  board  or  public  officers  acting  under 

11  delegated  authority  from  the  general  court  prior  to  July  first,  nineteen 

12  hundred  and  thirteen.     Unless  the  department  determines  otherwise, 

13  common  carriers  shall  be  permitted,  whether  required  to  do  so  by  law 

14  or  not,  to  issue  mileage,  workingmen's,  excursion,  school  or  commuta- 

15  tion  passenger  tickets,  or  reduced  rate  tickets  for  the  transportation  of 
18  children  under  twelve  years  of  age  or  of  pupils  attending  school,  or 

17  joint  interchangeable  mileage  tickets,  with  special  privileges  as  to  the 

18  amount  of  free  baggage  which  may  be  carried  under  mileage  tickets  of 

19  five  hundred  miles  or' more.     All  season  tickets,  before  issuance,  shall 

20  be  subject  to  the  approval  of  the  department  as  to  the  form  thereof 

21  and  the  conditions  named  therein. 

1  Section  19.     Every  common  carrier  shall  file  with  the  department  Schedules  of 

2  and  shall  plainly  print  and  keep  open  to  public  inspection  schedules  fi'iod.'etc. 

3  showing  all  rates,  joint  rates,  fares,  telephone  rentals,  tolls,  classifica-  227  liiass'.  493.' 

4  tions  and  charges  for  any  service,  of  every  kind  rendered  or  furnished,  op.  A.'cf.' 

5  or  to  be  rendered  or  furnished,  by  it  within  the  commonwealth,  and  all  '^^^®'  "• 

6  conditions  and  limitations,   rules  and  regulations  and  forms   of  con- 

7  tracts  or  agreements  in  any  manner  affecting  the  same,  in  such  places, 

8  within  such  time,  and  in  such  form  and  with  such  detail  as  the  depart- 

9  ment  may  order.    In  the  case  of  common  carriers  subject  to  the  inter- 


1674 


COMMON   CARRIERS. 


[CILA.P.    159. 


state  commerce  commission  the  forms  prescribed  for  such  schedules  10 
and  the  requirements  relative  to  the  filing  and  publication  thereof  shall  11 
conform,  as  nearly  as  may  be,  to  the  forms  prescribed  by  and  the  similar  12 
requirements  of  the  said  commission.  No  common  carrier  shall,  except  1.3 
as  otherwise  provided  in  this  chapter,  charge,  demand,  exact,  receive  or  14 
collect  a  different  rate,  joint  rate,  fare,  telephone  rental,  toll  or  charge  15 
for  any  service  rendered  or  fiu-nished  by  it,  or  to  be  rendered  or  fur-  16 
nished,  from  that  applicable  to  such  service  as  specified  in  its  schedule  17 
filed  with  the  department  and  in  effect  at  the  time.  Nor  shall  any  18 
common  carrier  refmid,  or  remit  directly  or  indirectly,  any  rate,  joint  19 
rate,  fare,  telephone  rental,  toll  or  charge  so  specified,  or  any  part  20 
thereof,  nor  extend  to  any  person  or  corporation  any  rule,  regidation,  21 
privilege  or  facility  except  such  as  are  specified  in  the  said  schedule  and  22 
regularly  and  uniformly  extended  to  all  persons  and  corporations  under  2.3 
like  circumstances  for  the  like,  or  substantially  similar,  service.  Unless  24 
the  department  otherwise  orders,  no  change  shall  be  made  in  any  rate,  25 
joint  rate,  fare,  telephone  rental,  toll,  classification  or  charge,  or  in  any  26 
rule  or  regulation  or  form  of  contract  or  agreement  in  any  manner  af-  27 
fecting  the  same  as  shown  upon  the  schedules  filed  in  accordance  with  28 
this  chapter,  except  after  thirty  days  from  the  date  of  filing  a  statement  29 
with  the  department  setting  forth  the  changes  proposed  to  be  made  in  30 
the  schedule  then  in  force  and  the  time  when  sucla  changes  shall  take  31 
effect,  and  such  notice  to  the  public  as  the  department  orders,  to  be  32 
given  prior  to  the  time  fixed  in  such  statement  to  the  department  for  33 
the  changes  to  take  effect.  The  department  for  good  cause  shown  may  34 
allow  changes  before  the  expiration  of  said  thirty  days,  under  such  35 
conditions  as  it  may  prescribe,  and  may  suspend  the  taking  effect  of  36 
changes  under  the  circumstances  and  in  the  manner  provided  in  the  37 
following  section.  At  the  time  when  any  changes  take  effect  they  shall  38 
be  plainly  indicated  upon  existing  schedules,  or  new  schedules  shall  be  39 
printed  and  filed  as  the  department  may  order.  This  section  shall  not  40 
prevent  any  telegraph  or  telephone  corporation  from  continuing  to  41 
furnish  the  use  of  its  lines,  equipment  or  ser\'ice  under  any  contracts  in  42 
force  on  July  first,  nineteen  hundred  and  thirteen,  or  upon  the  taking  43 
effect  of  any  schedules  of  rates  filed  with  the  department  as  provided  44 
in  this  chapter,  at  the  rates  fixed  in  such  contract;  provided,  that  when  45 
any  such  contracts  are  or  become  terminable  by  notice,  the  department  46 
may  direct  by  order  that  such  contracts  shall  be  terminated  by  the  47 
telegraph  or  telephone  corporation  which  is  a  party  thereto,  and  there-  48 
upon  such  contracts  shall  be  terminated  by  such  telegraph  or  telephone  49 
corporation  as  and  when  directed  by  such  order.  50 


Hearing  upon 
changes  in 
schedules  and 
action  thereon. 
1913,784,  §21. 
1916,  24. 
224  Mass.  463. 
228  Mass.  575. 
232  Mass.  309. 


Section  20.  WTienever  the  department  receives  notice  of  any  changes  1 
proposed  to  be  made  in  any  schedule  filed  under  this  chapter,  it  may,  2 
either  upon  complaint  or  upon  its  own  motion,  and  after  notice,  hold  a  3 
public  hearing  and  make  investigation  as  to  the  propriety  of  such  pro-  4 
posed  changes.  Pending  any  such  in\estigation  and  the  decision  thereon,  5 
the  department  may,  by  order  served  upon  the  common  carrier  affected,  6 
suspend  the  taking  effect  of  such  changes,  but  not  for  a  longer  period  7 
than  ten  months  beyond  the  time  when  the  same  would  otherwise  take  8 
effect.  After  such  hearing  and  in^•estigation,  the  department  may  make,  9 
in  reference  to  any  new  rate,  joint  rate,  fare,  telephone  rental,  toll,  classi-  10 
fication,  charge,  rule,  regulation  or  form  of  contract  or  agreement  pro-  1 1 
posed,  such  order  as  would  be  proper  in  a  proceeding  under  section  four-  12 


Chap.  159.]  common  carriers.  1675 

1.3  teen.     At  any  such  hearing  in\olving  any  proposed  increase  in  any  rate, 

14  joint  rate,  fare,  telephone  rental,  toll  or  charge,  the  burden  of  proof  to 

15  show  that  such  increase  is  necessary  to  obtain  a  reasonable  compensation 

16  for  the  service  rendered  shall  be  upon  the  common  carrier.    If,  at  a  hear- 

17  ing  involving  any  proposed  decrease  in  any  rate,  joint  rate,  fare,  telephone 

18  rental,  toll  or  charge  demanded  by  any  common  carrier,  it  shall  appear 

19  to  the  department  that  the  said  rate,  joint  rate,  fare,  telephone  rental, 

20  toll  or  charge  is  insufficient  to  yield  reasonable  compensation  for  the 

21  service  rendered,  the  department  may  determine  what  will  be  a  just  and 

22  reasonable  minimum  to  be  charged,  and  make  an  order  that  the  common^ 

23  carrier  shall  not  thereafter  demand  or  collect  less  than  the  minimum  so 

24  prescribed  without  first  obtaining  the  consent  of  the  department,  after 

25  a  public  hearing. 

1  Section  21.     Wherever  there  is  no  satisfactory  through  route  for  the  Establishment 

2  transportation  of  passengers  or  freight  at  a  reasonable  rate,  the  depart-  ?outes?"joint 

3  ment  may  order,  after  notice  and  a  public  hearing  had  upon  complaint,  palsengMs '°' 

4  any  two  or  more  railroad  or  railway  companies  whose  lines,  owned,  op-  i^s^Yw""'" 

5  crated,  leased,  or  controlled  by  stock  ownersliip,  or  otherwise,  form  a  fLy^oQi 

6  continuous  or  connecting  line  of  transportation,  or  could  be  made  to  do  5§  i-3. 

7  so  by  the  construction  and  maintenance  of  switch  connection  or  inter-  g.  s.'es,' 

8  change  track  at  connecting  points,  or  by  transfer  of  property  or  passengers  i869, 40s,  §  5. 

9  at  connecting  points,  to  establish  through  routes  and  joint  rates,  fares  igo"§§'3,\.'^' 

10  and  charges  for  the  transportation  of  passengers  and  property,  and  for  §|^*e|."f67 

11  the  operation  of  the  cars  and  other  equipment  for  such  transportation,  ^~^'^f?- 

12  within  the  commonwealth,  as  the  department  may  by  order  designate;  §§216-218. 

13  and,  if  the  board  of  aldermen  or  selectmen  act  adversely  upon,  or  fail  to  §§272-274. 

14  act  within  sixty  days  from  the  date  of,  the  filing  of  a  petition,  brought  §§  265-207, ' 

15  by  a  railway  company  under  section  seventy  of  chapter  one  hundred  1913, 754,  §  25. 

16  and  sixty-one  for  a  location  of  tracks  in  their  city  or  town  upon  which  g^cus^seg. 

17  the  petitioning  company  may  construct  the  switch  connection  or  inter-  H^^'^^'  ^^°' 

18  change  track  necessary  to  the  establishment  of  such  through  routes  or  1*  c^ay,  253, 

19  transportation,  or  to  the  operation  of  such  cars  or  other  equipment,  14  Alien,  462. 

20  the  petitioner  or  any  interested  party  may,  within  sixty  days  thereafter, 

21  file  such  petition  with  the  department  which  may,  if  after  notice  and  a 

22  public  hearing  it  is  of  the  opinion  that  public  convenience  and  necessity 

23  so  require,  grant  locations  upon  which  the  grantee  company  may  con- 

24  struct  the  switch  connection  or  interchange  track  necessary  to  the  es- 

25  tablishment  of  such  through  routes  or  transportation,  or  to  the  operation 

26  of  such  cars  or  other  equipment;   and,  if  such  railroad  or  railway  com- 

27  panics  cannot  agree  as  to  the  division  of  rates  or  the  conditions  under 

28  which  such  through  routes  or  transportation  shall  be  established  or  such 

29  cars  or  other  equipment  operated,  the  department  may,  after  due  hcar- 

30  ing,  determine  and  prescribe  the  proportionate  parts  of  such  through 

31  rates  payable  to  each  of  such  companies,  and  the  conditions  under  which 

32  such  through  routes  or  transportation  shall  be  established  or  such  cars  or 

33  other  equipment  operated;  pro\ided,  that  a  railroad  or  railway  company 

34  shall  have  control  of  and  responsibility  for  the  management  and  opera- 

35  tion  of  all  trains  or  cars  while  upon  its  railroad  or  railway  as  fully  as 

36  if  it  owned  them;    and  provided,  further,  that  in  case  of  a  petition  for 

37  the  establishment  of  such  through  routes  and  transportation  by  railway 

38  companies,  or  for  locations  for  the  construction  of  the  switch  connection 

39  or  interchange  track  necessary  to  the  establishment  of  such  througli 

40  routes  and  transportation  by  railway  companies,  the  department  shall 


1676 


COMMON   CARRIERS. 


[Chap.  159. 


give  fourteen  days'  notice  of  any  public  hearing  held  by  it  under  the  41 
foregoing  provisions  of  this  section,  to  the  petitioners,  to  the  companies  42 
aifected  and  to  the  board  of  aldermen  of  the  city  or  the  selectmen  of  the  43 
town  where  the  lines  of  said  companies  connect  or  within  which  a  con-  44 
nection  between  the  lines  of  said  companies  is  proposed  to  be  made.  The  45 
department  may,  upon  reasonable  terms  and  conditions,  require  and  46 
order  any  railroad  or  railway  company  which  carries  freight  in  carload  47 
lots  to  establish  and  maintain  for  the  purpose  of  recei\ing  or  dehvering  48 
freight  in  carload  lots,  a  switch  connection  with  any  priA'ate  side  track  49 
.constructed  on  land  adjoining  the  location  of  any  such  railroad  or  rail-  50 
way,  if  the  department  is  of  opinion  that  such  connection  is  reasonable  51 
and  practicable,  can  be  put  in  and  used  with  safety,  and  will  furnish  52 
sufficient  business  to  justify  its  construction  and  maintenance,  and  the  53 
department  may  grant  to  any  railway  company  the  necessary  locationsin  54 
public  ways  and  places  for  any  switch  connection  ordered  by  the  depart-  55 
ment  to  be  constructed  by  such  railway  company.  56 


Department 

may  require 

signals. 

1906, 

267,  §  1; 

463,1 

M6. 

lOp. 

A.  G.  638. 

Repairs, 

fares, 

etc. 

1869, 

408,  §  3. 

1874, 

372,  §  9. 

P.  S. 

112,  §  16. 

R.  L. 

Ill,  I  15. 

1904, 

357,  1  1. 

1906, 

463.  I, 

§§9, 

68. 

1909, 

343. 

Section  22.     The  department  may  from  time  to  time  require  rail-  1 

road  and  railway  corporations  to  install  and  maintain  at  such  places  2 

upon  the  railroad  or  railway  premises  as  it  shall  designate  such  block  or  3 

other  signals  or  devices  as  it  shall  approve  for  the  purpose  of  safeguard-  4 

ing  public  travel.  5 

Section  23.     If  the  department  is  of  opinion  that  repairs  are  nee-  1 

essary  upon  any  railroad  or  railway,  or  that  an  addition  to  its  rolling  2 

stock,  or  an  addition  to  or  change  or  relocation  of  its  stations  or  station  3 

houses  or  waiting  rooms,  or  a  change  in  its  rates  of  fares  for  transporting  4 

freight  or  passengers,  or  in  the  mode  of  operating  the  railroad  or  railway  5 

and  conducting  its  business,  is  reasonable  and  expedient  to  promote  the  6 

security,  convenience  and  accommodation  of  the  public,  it  shall  in  WTit-  7 

ing  inform  the  corporation  or  company  of  the  improvement  and  changes  8 

which  it  recommends.  9 


Hearings  and 
examinations 
as  to  certain 
common  car- 
riers on  com- 
plaint of 
mayor,  etc. 
1869,  408,  §  4. 
1874,  372,  §  10. 
P.  S.  112,  §  17. 
R.  L.  111,5  10. 
1904,  357,  I  2. 
1906,  433,  §  5; 
463,  I,  §§  10, 
68. 


Section  24.  Upon  -svTitten  complaint,  relative  to  the  service  or  1 
charges  for  service  in,  to  or  from  any  city  or  to\^ii  as  rendered  or  made  2 
by  any  company  engaged  therein  in  the  transmission  of  intelligence  by  3 
electricity,  by  the  mayor  or  selectmen,  or  by  twenty  customers  of  the  4 
company,  the  department  shall  grant  a  public  hearing,  first  gi\'ing  to  the  5 
complainants  and  the  company  reasonable  ^T-itten  notice  of  the  time  6 
and  place  thereof.  On  written  complaint  of  the  mayor,  selectmen  or  7 
twenty  legal  voters  of  a  city  or  town  within  which  any  railroad  or  rail-  8 
way  is  located,  alleging  grounds  of  complaint,  the  department  shall  9 
examine  the  condition  and  operation  of  such  railroad  or  railway,  first  10 
giving  to  the  complainants  and  the  corporation  or  companj'  reasonable  11 
^\Titten  notice  of  the  time  and  place  thereof.  12 


Noticeto*""^'''      Section  25.     The  department  shall  give  seasonable  notice  by  mail  1 

"en"''a1'^o°Jrt     '^'^  ^'V  member  of  the  general  court  of  any  hearing  before  the  depart-  2 

1919, 149.         ment  concerning  common  carriers  upon  a  matter  aftecting  the  interests  3 

of  the  district  represented  by  him.  4 


pr^'opertfe"."'  SECTION  26.     The  department  may  investigate  and  determine  the     1 

1913, 784,  §  14.  f^jj,  value  for  any  purpose  of  all  the  property  of  any  common  carrier    2 


Chap.  159.]  common  c.vrriers.  1677 

3  rendering  a  public  service  subject  to  the  supervision  of  the  department, 

4  actually  used  or  useful  for  the  convenience  of  the  public,  whenever  it 

5  deems  the  ascertainment  of  such  value  necessary  to  carry  into  effect  any 

6  provision  of  this  chapter,  and  may  at  any  time  make  a  revaluation 

7  of  such  property.     In  making  any  valuation  under  this  section,  the 

8  department  shall  have  access  to  and  may  use  any  books,  documents  or 

9  records  in  the  possession  of  anj^  department  or  board  of  the  common- 
10  wealth  or  any  political  subdivision  thereof. 

1  Section  27.     The  department  may,  either  through  its  members  or  inspection  and 

2  responsible  agents,  engineers,  inspectors  or  examiners  duly  authorized  iseg,  4os,  §  7. 

3  by  it,  enter  upon  any  premises  occupied  by  any  common  carrier  for  any  p's.'n2.'§  lo.' 

4  purpose  consistent  with  this  chapter.     It  may  inspect  the  property,  jfl;^.^^' 

5  equipment,  buildings,  plants,  factories,  power  houses,  ducts,  conduits  r^l'^I*''^^' 
G  and  offices  of  any  common  carrier.     It  may,  in  connection  with  such  ^|q^,'|23^- 

7  inspection,  have  performed  for  it  such  service  of  the  kind  rendered  by  I906i463',  i, 

a    J.1  ■  -J.  11  •  •        I       r  '      §5  2,56.68. 

8  the  common  carrier  as  it  may  reasonably  require,  including  passage  igos,  599,  §  3. 

9  upon  any  locomotive,  car  or  steamship  while  in  service,  and  upon  rea-  xgis]  754;  §  13. 

10  sonable  notice,  the  use  of  an  inspection  locomotive  or  car  whenever 

1 1  that  is  necessary,  in  the  opinion  of  the  department,  for  a  physical  inspec- 

12  tion  of  all  or  any  of  the  lines  and  stations  of  any  railroad  or  railway 

13  under  its  supervision. 

1  Section  28.     Every  railroad  corporation  and  railway  company  shall  f^°J^'g^„,°f 

2  give  immediate  notice  of  an  accident  on  its  railroad  or  railwav,  resulting  i^^^'ip.  §  2^ 

•  1  /»»•/»  1.1  •  !•!  T  ..U.S.  oS,  8  lUO. 

3  in  a  loss  of  life,  to  the  medical  examiner  of  the  countv  who  resides  iseg,  408,  §  u. 

4  nearest  to  the  place  of  accident,   and  shall  also,   within  twenty-four  is74,'372, 

5  hours,  give  notice  to  the  department  of  any  such  accident  or  of  any  i878,'7. 

6  accident  of  the  description  of  accidents  of  which  it  may  require  notice  r  f;  ni'.llef: 

7  to  be  given.    For  each  omission  to  give  such  notice,  the  corporation  or  J^o|'  ~fl^-  j 

8  company  shall  forfeit  not  more  than  one  hundred  dollars.  §§62,68. 

1  Section  29.     An  inspector  shall,  under  the  direction  of  the  depart-  investigation 

2  ment,  investigate  as  promptly  as  may  be  any  accident  upon  a  railroad  isjo,  40,8,  §  14. 

3  or  railway,  or  resulting  from  the  operation  thereof,  which  causes  the  is74,'372,§  ii. 

4  death  or  imperils  the  life  of  any  person,  and  shall  report  thereon  to  fgli.sa's.Vs*' 

5  the  department,  which  shall  investigate  the  cause  of  any  such  accident  ^*^j^'  f[f  s  2. 
G  resulting  in  loss  of  life,  and  may  investigate  any  other  accident.     The  flj^^^ll*  j 

7  inspector  shall  attend  the  inquest  held  in  case  of  any  such  death  by  §§ii,  57,'6s. 

8  accident  and  may  cause  any  person  who  has  knowledge  of  the  facts  or 

9  circumstances  connected  with  such  death  to  be  summoned  as  a  witness 
10  to  testify  at  the  inquest. 

1  Section  30.     An  employee  may  make  written  complaint  to  the  de-  Complaint 

2  partment  of  a  defect  in  the  ways,  works,  machinery  or  appliances  of  a  1894,535.  §6. 

3  railroad  or  railway,  and  the  name  of  the  complainant  shall  not  be  divulged,  r.'l!  lii'i  §  is. 

1906,  463,  I,  §§  12,  68. 


1  Section  31.     Tlie  department  may,  from  time  to  time,  prescribe  Forma  of 

2  forms  of  accounts,   records  and  memoranda  for  the  common  carriers  rct'uras,  et 

3  under  its  supervision,  or  for  such  classes  of  common  carriers  as  it  shall  g*".'63.''§ 

4  establish.    The  forms  shall  conform  as  nearly  as  may  be  to  those  estab-  Jlrollo?', 

5  lished  by  the  interstate  commerce  commission.    The  accounts  of  such  §§3,4. 


1678 


COMMON   CARRIERS. 


[Chap.  159. 


common  carriers  shall  be  kept  in  accordance  with  the  forms  prescribed. 
It  shall  have  access  to  the  list  of  stockholders  of  any  railroad  corpora- 
tion or  railway  company  and  may  cause  the  said  list  or  any  part  thereof 
to  be  copied  for  its  information  or  for  the  information  of  said  stock- 
holders.   Any  railroad  corporation  or  railway  company  which  refuses  to 


1871,381.5  54. 
1874,  372.  §  15. 
1876,  173; 
185,  §§  5,  6, 
P.S.I  12, 
§§23,24,  2lj; 
113,  §59. 
1889,328,  §  2. 
R.L.  Ill, 
§§23,24,20; 
1 12,  §  94. 

1906.433,5  11:  ably  neglects  to  keep  its  accounts  in  the  method  prescribed  by  the  de-  12 
2a68!ni,§i52!  partment  shall  forfeit  not  more  than  five  thousand  dollars.  13 

1913,  784.  §  12.  1917,  122,  §§  3,  4. 


9 
10 


submit  its  books  to  the  examination  of  the  department  or  unreason-  11 


Returns,  form 

and  time  for 

filing. 

1857,  240,  §  4. 

G.  S.  63,  §  145. 

1864,  229,  §  42. 

1870,  307, 
§§3,4. 

1871,  381,  §  54, 
1874,372,  §15. 
1876,  173. 

P.  S.  112,  §  26; 
113,  §  59. 
1889,  328,  5  2. 
R.  L.  Ill,  §  26; 
112,  §  94. 
1906,  463,  I. 
§  20,  II,  §  258, 
in,  §§  152, 
158. 

1909,  602,  §  1. 

1910,  558,  I  1. 
1917,  122, 

§§  1,4,5. 


Section  32.     The  department  shall  prescribe  the  forms  for  the  annual  1 

returns  to  be  made  to  it  by  the  several  kinds  of  common  carriers,  may  2 

from  time  to  time  make  changes  and  additions  in  such  form,  and  shall  3 

give  to  such  carriers  one  year's  notice  of  any  changes  or  additions  requir-  4 

ing  an  alteration  in  the  method  or  form  of  keeping  their  accounts.     The  5 

annual  returns  required  by  law  to  be  made  to  the  department  shall  be  6 

returns  for  the  year  ending  on  December  thirty-first,  and  shall  be  trans-  7 

mitted  thereto,  upon  blank  forms  to  be  furnished  by  the  department,  on  8 

or  before  IMarcli  thirty-first  following,  or  such  subsequent  date  as  in  any  9 

case,  for  good  cause  shown,  the  department  may  fix.     If  a  return  is  de-  10 

fective  or  appears  erroneous,  the  department  shall  forthwith  order  the  11 

common  carrier  to  amend  it  within  fifteen  days.     The  original  of  each  12 

return  or  amended  return,  subscribed  and  sworn  to  as  recjuired  by  law,  13 

shall  be  preserved  in  the  office  of  the  department.  14 


Returns  of 
persons  doing 
an  express 
business. 
1908,  599, 
§§1.2. 

1917,  122,  §  1. 
201  Mass.  564, 


Section  33.     E\-ery  person  doing  an  express  business  upon  either  a  1 

railroad  or  railway  in  the  commonwealth  shall  annually  transmit  to  the  2 

department  a  return  on  oath  of  his  doings  setting  forth  copies  of  all  3 

contracts  made  during  the  year  with  other  persons  doing  a  transporta-  4 

tion  or  express  business  upon  any  railroad  or  railway  in  the  common-  5 

wealth,  and  shall  gi\'e  complete  information  in  reply  to  the  questions  6 

presented  in  the  form  for  such  return  which  shall  be  prescribed  by  the  7 

department.     A  person  neglecting  to  make  such  return  or,  if  defective  8 

or  erroneous,  to  amend  it  witliin  fifteen  days  after  a  request  so  to  do  9 

shall  forfeit  twenty-five  dollars  for  each  day  during  wliich  such  neglect  10 

continues.  11 


Examination 
of  books,  etc. 
1869,  408,  §  6. 
1874,  372,  I  12. 
1876,  185,  §  2. 
P.  S.  112, 
§§19,21. 
R.L.  Ill, 
§§19,21. 
1906,  433,  §  10; 
463,  I,  §§  13, 
15,  68. 
1913,  784,  I  11. 


Section  34.  The  department,  tlirough  its  commissioners  or  by  em- 
ployees duly  authorized,  may  examine  all  books,  contracts,  records, 
documents,  papers  and  memoranda  of  any  common  carrier,  and  by 
subpcena  duces  tecum  compel  the  production  thereof,  or  of  duly  verified 
copies  of  the  same  or  any  of  them,  and  compel  the  attendance  of  such 
witnesses  as  the  department  may  require  to  give  evidence  at  any  such 
examination. 


Examination  of 
condition  of 
company  on 
request  of 
director,  etc. 
1876,  185,  §  4. 
P.  S.  112,  §22. 
R.L.  Ill,  §  22. 
1906,  463,  I, 
§§  16,  68. 


Section  35.  Upon  the  written  application  of  a  director,  or  of  any 
person  owning  one  fiftieth  part  of  the  paid-in  capital  stock  of  a  cor- 
poration or  company  operating  a  railroad  or  railway,  or  who  owns  the 
bonds  or  other  evidences  of  indebtedness  of  such  corporation  or  company 
equal  in  amount  to  one  fiftieth  part  of  its  paid-in  capital  stock,  the 
department  shall  examine  the  books  and  the  financial  condition  of  said 
corporation  or  company,  and  shall  cause  the  result  of  such  examination 
to  be  published  in  one  or  more  daily  newspapers  in  Boston,  and  in  some 
newspaper  published  in  the  county  where  such  applicant  resides. 


Chap.  159.]  common  carriers.  1679 

1  Section  36.     The  department  may  provide  for  an  annual  audit  by  Annual  audit. 

2  employees  duly  authorized  by  it  of  all  accounts  of  any  common  carrier 

3  or  class  of  common  carriers. 

1  Section  37.     Every  order  of  the  department  shall  be  served  upon  Service  of 

2  every  person  or  corporation  to  be  affected  thereby,  either  by  personal  department. 

3  delivery  of  a  certified  copy  thereof,  or  by  mailing  a  certified  copy  thereof,        '      • »     • 

4  in  a  sealed  package,  postage  prepaid,  to  the  person  to  be  affected  thereby 

5  or,  in  the  case  of  a  corporation,  to  any  officer  or  agent  thereof  upon 

6  whom  a  summons  may  be  served  under  the  laws  of  the  commonwealth. 

7  Every  person  and  corporation  shall  notify  the  department  forthwith,  in 
S  writing,  of  the  receipt  of  the  certified  copy  of  every  order  so  served,  and 
9  in  the  case  of  a  corporation  such  notification  shall  be  signed  and  acknowl- 

10  edged  by  a  person  or  officer  duly  authorized  by  the  corporation  to  admit 

1 1  such  service.    Within  a  time  specified  in  the  order,  every  person  and  cor- 

12  poration  upon  whom  it  is  served  shall,  if  so  required  in  the  order,  notify 

13  the  department  in  like  manner  whether  the  terms  of  the  order  are  accepted 

14  and  will  be  obeyed.     Every  such  order  shall  take  effect  at  a  time  therein 

15  specified  and  shall  continue  in  force  either  for  a  period  designated  therein 
IG  or  until  changed  or  abrogated  by  the  department. 

1  Section  38.     No  request  or  advice  of  the  department  shall  in  any  Effect  of 

2  manner  impair  the  legal  duties  and  obligations  of  a  railroad  corporation  advice  of 

3  or  railway  company  or  its  legal  liability  for  the  consequences  of  its  acts  i809,'^408."|  12. 

4  or  of  the  neglect  or  mismanagement  of  any  of  its  agents  or  servants.        p*a'n2%  2a' 

R.  L.  Ill,  §  20.  190G,  4G3,  I,  §§  14,  68.  192  Mass.  308. 

1  Section  39.     If  in  the  judgment  of  the  department  any  common  Enforcement 

2  carrier  violates  or  neglects  in  any  respect  to  comply  with  the  provisions  attorney 

3  of  any  law,  and  after  written  notice  by  the  department  continues  such  1869^408,  §  3. 

4  violation  or  neglect,  or  neglects  to  make  returns  as  required  by  law,  or  383°'§T.~'  ^  *' 

5  to  amend  the  same  when  lawfully  required  so  to  do,  the  department  ^^s'ui'iii- 

6  shall  forthwith  present  the  facts  to  the  attorney  general  for  action.  ii3.  §  62. 

E.  L.  Ill,  §  14;  112,  §99.  1906,  433,  §  6;  463,  I,  §§  8,  OS,  III,  §  156.  197  Mass.  194. 

1  Section  40.     Whenever  the  department  is  of  opinion  that  a  common  Enforcement 

2  carrier  subject  to  its  supervision  is  failing  or  omitting  or  about  to  fail  or  court."" 

3  omit  to  do  anything  required  of  it  by  law  or  by  order  of  the  department,  igis,  2S0',  §  15. 

4  or  is  doing  anything  or  about  to  do  anything  or  permitting  anything  or  ^i?  lll^'.  197; 

5  about  to  permit  anything  to  be  done,  contrary  to  or  in  violation  of  the  f^^  ^ass.  309, 

6  law  or  of  any  order  of  the  department,  it  shall  direct  its  coun.sel  to  begin,  247  u.  s.  105. 

7  subject  to  the  supervision  of  the  attorney  general,  an  action  or  proceeding 

8  in  the  supreme  judicial  court  in  the  name  of  the  department  for  the 

9  purpose  of  having  such  violations  or  threatened  violations  stopped  and 
10  prevented  either  by  mandamus  or  injunction. 

1  Section  41.     The  department  may  be  represented  at  any  public  Representation 

2  hearing  before  any  legislative  committee  or  public  board  in  the  com-  at  iieSdng"™ 

3  monwealth,  or  of  any  other  state  or  of  the  United  States,  with  respect  ^^^^'  '**'  ^ '°' 

4  to  any  proposed  legislation  or  action  by  public  authorities  within  or 

5  without  the  commonwealth  affecting  any  public  service  within  the  com- 

6  monwealth  subject  to  its  supervision,  whenever  it  deems  such  represen- 

7  tation  desirable  in  the  interests  of  the  commonwealth.     It  may  apply 

8  by  petition  to  the  interstate  commerce  commission  for  relief,  and  may 


1680 


COMMON  C.UIRIERS. 


[Ckav.  159. 


present  evidence  and  arguments  to  the  said  commission,  in  any  case  in  9 
which  it  is  of  opinion  that  a  common  carrier  subject  to  its  supervision  is  10 
violating  any  provision  of  the  interstate  commerce  law  or  any  valid  order  11 
or  regulation  made  under  authority  thereof.  The  department  may  also  12 
confer  with  or  appear  before  boards  of  other  states  having  powers  over  13 
any  common  carrier  when  in  its  judgment  the  interests  of  the  common-  14 
wealth  will  be  promoted  thereby.  15 


Summoning 

witnesses. 

Fees. 

1877,  194,  §  1. 

P.  S.  112.  §  25. 

1901,  2S6. 

R.  L.  Ill,  I  2.5. 

1906,  433,  §  13; 

463,  I,  §§  19, 

68. 


Section  42.     In  all  investigations  and  inquiries  authorized  by  law  1 

to  be  made  by  the  department  under  the  provisions  of  this  chapter  2 

and  in  all  proceedings  before  it  under  the  provisions  of  this  chapter,  3 

any  commissioner  of  the  department  may  summon  witnesses,  administer  4 

oaths  and  take  testimony.    The  fees  of  such  witnesses  for  attendance  5 

and  travel  shall  be  the  same  as  for  witnesses  before  the  superior  court  6 

and  shall  be  paid  by  the  commonwealth  upon  the  certificate  of  the  7 

department,  filed  with  the  state  auditor.  8 


fsS'^ws^''"'^''  Section  43.  The  department  shall  make  an  annual  report  including 
1870  307  « •'  ^"^^  statements,  facts  and  explanations  as  will  describe  the  actual 
1874!  372,'  working  of  the  system  of  carriers  under  its  supervision  in  its  bearing 
PS.' 112.  '  upon  the  business  and  prosperity  of  the  commonwealth,  Tvith  such 
ii.  L.'iii',1  11.  tables  and  abstracts  of  all  the  returns  required  and  such  suggestions 
lesfiftfs^,  *'  fis  to  its  general  policy  or  any  part  thereof,  or  the  condition,  affairs  or 
1918, 189  §  1     conduct  of  the  activities  under  its  supervision  as  may  seem  appropriate, 

together  ■v\-ith  a  report  of  any  proceeding  had  under  authority  of  section 

twenty-three  and  the  result  thereof. 


tap?i*^eri"           Section  44.     Any  employee  or  agent  of  the  department  who  divulges  1 

^omation'"'      ^^y  f^ct  or  information  coming  to  his  knowledge  during  the  course  of  any  2 

obtained  by       examination  or  audit  under  this  chapter,  except  in  so  far  as  he  may  be  3 

esammation                             iiii                                      i             x-'            ^r                                     i-'ii  4 

or  audit.           directed  by  the  department,  or  by  a  court  or  judge,  or  be  authorized  by  4 

law,  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars.  5 


Certain  motor 
carriers  must 
be  licensed, 

1916.  293,  §  1. 
1918,  226,  §  2. 
1919,371. 
§§  1.7. 

233  Mass.  S3S. 
235  Mass.  95. 
4  0p.  A.  G.  7, 
183,  422. 
Op.  A.  G. 
(1917)  45.  101. 
Op.  A.  G. 
(1919)  66. 


COMMON   CARRIERS   OF  PASSENGERS  BY  MOTOR  VEHICLE. 

Section  45.  No  person  shall,  in  any  city  or  town,  operate  any  motor 
vehicle  upon  any  public  way,  for  the  carriage  of  passengers  for  hire,  in 
such  a  manner  as  to  aff'ord  a  means  of  transportation  similar  to  that 
afforded  by  a  railway  company,  by  indiscriminately  receiving  and  dis- 
charging passengers  along  the  route  on  which  the  vehicle  is  operated 
or  may  be  running,  or  for  transporting  passengers  for  hire  as  a  business 
between  fixed  and  regular  termini,  without  first  obtaining  a  license  there- 
for from  the  city  council  of  such  city  or  the  selectmen  of  such  town,  in  8 
this  and  the  two  following  sections  called  the  licensing  authority.  Any  9 
such  license  issued  in  a  city  shall  be  subject  to  the  approval  of  the  mayor  10 
and  shall  not  be  valid  unless  such  approval  has  been  endorsed  thereon  in  11 
writing.  Any  person,  receiving  a  license  under  this  section  and  operating  12 
thereunder,  is  hereby  declared  to  be  a  common  carrier  and  shall,  in  respect  13 
to  the  operation  of  such  a  vehicle,  be  subject  to  such  orders,  rules  or  regu-  14 
lations  as  shall  be  adopted  by  the  licensing  authority  under  the  following  15 
section.  16 


J'egul'atioiw  fo'?'*      Section  46.     No  liceusc  shall  be  granted  under  the  preceding  section     1 
carriers ""'""^     Until  ordcrs,  Tulcs  or  regulations  shall  have  been  adopted  by  the  Hcensing    2 


ClIAP.    159.]  COMMON   CARRIERS.  '         1681 

3  authority  in  the  town  where  the  vehicle  is  to  be  operated,  and  any  such  Bond. 

4  authority  may  make  such  orders,  rules  or  regulations.     No  such  motor  1919]  371! 

5  vehicle  shall  be  operated  as  aforesaid  until  the  licensee  of  the  vehicle,  in  2.to  Mass.  iso. 

6  addition  to  complying  with  all  rules,  orders  and  regulations  of  the  licensing  ^^^  ^^^^^-  ^*®- 

7  authority,  shall  have  deposited  with  the  treasurer  of  the  town  security 

8  by  bond  or  otherwise,  running  to  the  town  treasurer  and  approved  by 

9  him  and  by  the  licensing  authority,  in  such  sum  as  the  licensing  authority 

10  may  reasonably  require,  conditioned  to  pay  any  final  judgment  obtained 

11  against  the  principal  named  in  the  bond  for  any  injury  to  person  or 

12  property  or  damage  for  causing  the  death  of  any  person  by  reason  of  any 

13  negligent  or  unlawful  act  on  the  part  of  the  principal  named  in  said  bond, 

14  his  or  its  agents,  employees  or  drivers,  in  the  use  or  operation  of  any 

15  such  vehicle.     Any  person  so  injured  or  damaged,  or  his  executor  or  ad- 

16  ministrator,  or  the  executor  or  administrator  of  any  person  whose  death 

17  was  so  caused,  may  enforce  payment  of  such  judgment  by  suit  on  said 
IS  bond  in  the  name  of  the  town  treasurer.     Such  a  bond  shall  be  furnished 

19  in  each  town  where  said  motor  vehicle  is  licensed  to  operate,  and  shall, 

20  in  each  instance,  be  in  accordance  with  the  rules,  orders  and  regulations 

21  of  the  licensing  authority  in  such  town. 

1  Section  47.     Within  thirty  days  from  the  adoption  of  any  such  order,  Rules  and 

2  rule  or  regulation,  any  person,  operating  such  a  motor  veliicle,  or  a  rail-  to^oto?"^"^ 

3  way  company  operating  a  railway  in  such  town,  or  any  twenty  residents  department. 

4  of  such  town,  may  petition  the  department  for  the  alteration,  amend-  Jg}|'  pj-  ^  ^• 

5  ment  or   revocation  of  such  an  order,  rule  or  regulation,  and  for  the  §§  3, 7. 

6  establishment  of  orders,  rules  or  regulations  to  be  thereafter  observed 

7  by  persons  and  corporations  operating  such  a  motor  vehicle  upon  any 

8  streets  or  ways  in  such  town.     Said  department,  upon  such  petition, 

9  after  notice  to  the  licensing  authority  and  a  hearing,  may  alter,  amend 

10  or  revoke  such  an  order,  rule  or  regulation  and  establish  in  place  thereof 

11  orders,  rules  and  regulations  thereafter  to  be  observed  in  such  town,  and 

12  fix  the  amount,  class  and  kind  of  the  secm-ity,  by  bond  or  otherwise,  which 

13  licensees  are  required  to  give  under  the  preceding  section.     Thereafter 

14  the  department,  upon  its  own  initiative  or  upon  petition  of  any  person 

15  operating  any  such  motor  vehicle  in  such  town,  or  of  a  railway  com- 

16  pany  operating  a  railway  in  such  town,  or  any  twenty  residents  thereof, 

17  after  notice  to  the  licensing  authority  of  such  town,  may  alter  or  amend 

18  any  order,  rule  or  regulation  established  by  the  department,  or  may  adopt 

19  orders,  rules  and  regulations  in  substitution  thereof.     Orders,  rules  and 

20  regulations  prescribed  by  the  department  under  this  section  shall  not  be 

21  subject  to  amendment  or  repeal  by  a  town  or  by  the  licensing  author- 

22  ity  thereof. 

1  Section  48.     Section  forty  shall  apply  to  any  order,  rule  or  regu-  Section  4o 

2  lation  established  by  the  department  under  the  preceding  section,  and  i9r8!'226,  §  2. 

3  any  such  order,  rule  or  regulation   may  be  enforced  as  provided  in  If'l,'!.'^'' 

4  section  five  of  chapter  twenty-five. 

1  Section  49.     Whoever  violates  any  order,  rule  or  regulation  adopted  f|"g'|\i,  §  5 

2  or  established  under  sections  forty-five  to  forty-eight,  inclusive,  or  vio- 

3  lates  any  provision  of  any  of  said  sections,  shall  be  punished  by  a  fine 

4  of  not  more  than  one  hundred  dollars  or  by  imprisonment  in  the  house 

5  of  correction  for  not  more  than  two  months,  or  both. 


1682 


COMMON   CAKEIERS. 


[ClIAP.    159. 


ISSUE   OF   STOCK   OR  BONDS   OF   RAILRO.UJS   AND  STREET   RAILWAYS. 


Price  at  which 
railroad,  etc., 
corporations 
shall  offer  new 
stock  to  their 
stockholders, 
etc. 

1S70,  179. 
1871,392,  §  1. 
1873,39,  §  1; 
305. 

1878,84,  §  1. 
1879,  90,  §  1- 
P.  S.  106,  §  39; 

112,  §58; 

113,  §  16. 

1893,  31.5, 

1894,  472, 
R.  L.  109, 
1900,41)3,11, 
«  69,  258, 
III,  §§111.158. 

1908,  636,  §  1. 

1909,  309. 
1915,  298,  §  1. 
1919,333, 
§§23,24. 
1920,  2. 

216  Mass-  432. 
3  Op.  A.  G.  329. 


1. 
1. 
30. 


Section  50.  Any  corporation  which  owns  or  operates  a  railroad, 
railway,  electric  railroad  or  ele\'ated  railway  shall,  upon  any  increase  of 
its  capital  stock,  except  as  provided  in  the  following  section,  offer  the  new 
shares  proportionately  to  its  stockholders  at  such  price,  not  less  than  the 
par  value  thereof,  as  may  be  determined  by  its  stockholders.  The  direc- 
tors upon  the  approA-al  of  such  increase,  as  pro\'ided  in  section  forty- 
eight  of  chapter  one  hundred  and  sixty  and  section  twenty-eiglit  of  chap- 
ter one  hundred  and  sixty-one,  shall  give  written  notice  of  the  increase  8 
to  each  stockholder  of  record  upon  the  books  of  the  company  at  a  date  9 
designated  by  vote  of  the  directors  passed  after  the  approval  by  the  10 
department  of  such  issue,  stating  the  amount  of  the  increase,  the  number  11 
of  shares  to  which,  according  to  the  proportionate  number  of  his  siiares  12 
at  said  date  designated  by  the  vote  of  the  directors,  he  is  entitled,  the  13 
price  at  which  he  is  entitled  to  take  them,  and  fixing  a  time  not  less  than  14 
fifteen  days  after  said  date  designated  by  vote  of  the  directors  witliin  15 
which  he  may  subscribe  for  such  additional  stock.  Each  stockholder  16 
may,  within  the  time  limited,  subscribe  for  his  portion  of  such  stock,  to  be  17 
paid  for  in  cash  before  the  issue  of  a  certificate  therefor.  No  fractions  of  18 
shares  shall  be  issued,  but  stockholders  may  combine  them  by  purchase  19 
or  sale  of  rights  to  subscribe.  '  20 


Stock  nia.v  lie 
sold  at  auction 
in  certain 
cases. 

1870,  179. 

1871,  392,  §  2. 
1873,39,  §  1; 
305;  333. 
1874,  372,  §  46. 

1878,  84.  §  2. 

1879,  90. 

P.  S.  106,  §  40; 
112,  §  59:  113, 
§  16. 

1893,  315.  §  2. 

1894,  472, 
§§  1,2. 

R.  L.  109,  §  31. 
1906,463,  II, 
§§  70,  2.5S. 
HI,  §  112. 
1908.  636,  §  2. 


Section  51.  If  such  increase  does  not  exceed  four  per  cent  of  the  1 
existing  capital  stock  of  the  company,  the  directors,  without  first  offer-  2 
ing  the  same  to  the  stockholders,  may  sell  the  shares  by  auction  to  the  3 
highest  bidder,  at  not  less  than  the  par  value  thereof,  to  be  actually  paid  4 
in  cash.  They  may  also  so  sell  at  public  auction  any  shares,  which,  after  5 
the  expiration  of  the  time  limited  in  the  notice  required  by  the  preceding  6 
section,  remain  unsubscribed  for  by  the  stockholders  entitled  to  take  7 
them.  Such  shares  shall  be  offered  for  sale  in  Boston,  or  in  such  other  8 
town  as  may  be  prescribed  by  the  department;  and  notice  of  the  time  9 
and  place  of  such  sale  shall  be  published  at  least  five  times  during  the  ten  10 
days  immediately  preceding  the  sale  in  each  of  at  least  three  of  such  11 
daily  newspapers  as  may  be  prescribed  by  the  department.  12 


1919.  33.3,  §  24. 


113  Mass.  79. 


216  Mass.  432. 


Determination 
by  department 
as  to  amount 
of  stock. 
1908,  636,  §  3. 
216  Mass.  432. 


Section  52.     The  determination  by  the  department,  under  the  pro-  1 

%dsions  of  section  forty-eight  of  chapter  one  hundred  and  sixty  and  section  2 

twenty-eight  of  chapter  one  hundred  and  sixty-one,  as  to  the  amount  of  3 

stock  wliich  is  reasonably  necessary  for  the  purpose  for  wliich  such  stock  4 

has  been  authorized  shall,  in  the  case  of  the  corporations  described  in  5 

section  fifty,  be  based  upon  the  price  at  which  such  stock  is  to  be  6 

issued  as  fixed  by  the  stockholders ;  but  the  department  shall  refuse  to  7 

approve  any  particular  issue  of  stock  if,  in  its  opinion,  the  price  fixed  by  8 

the  stockholders  is  so  low  as  to  be  inconsistent  with  the  public  interest.  9 


Computing 
amount  of 
capital  stock 
as  basis  for 
issue  of  bonds. 
1908,  620. 


Section  53.     In  computing  the  amount  of  capital  stock  of  a  railroad  1 

corporation,  electric  railroad,  railway  or  elevated  railway  company  in  2 

order  to  determine  the  maximum  amount  of  bonds,  coupon  notes  or  3 

other  evidences  of  indebtedness,  payable  at  periods  of  more  than  twelve  4 

months  after  the  date  thereof,  under  sections  forty-seven,  forty-eight  5 

and  sixty-four  of  chapter  one  hundred  and  sixty  or  section  twenty-nine  6 


Chap.  159.]  common  carriers.  1683 

7  of  chapter  one  hundred  and  sixty-one,  and  under  any  similar  provisions 

8  of  any  special  acts  limiting  the  amount  of  such  securities,  which  a  rail- 

9  road  corporation,  electric  railroad,  railway  or  elevated  railway  company 

10  may  issue,  there  shall  be  added  to  the  par  value  of  the  capital  stock  all 

1 1  cash  premiums  paid  into  the  corporation  on  all  shares  issued  by  such 

12  corporation  or  company  subsequent  to  July  ninth,  eighteen  hundred  and 

13  ninety-four,  under  chapter  four  hundred  and  sixty-two  of  the  acts  of 

14  eighteen  hundred  and  ninety-four  or  any  similar  provisions  of  law. 

TR.'U^SFER     OF     FRANCHISE     OR     PROPERTY     OF     RAILROADS    AND     STREET 

RAILWAYS. 

1  Section  54.     A  lease  or  purchase  and  sale  of  the  franchise  and  property  Transfers  to 

2  of  a  railroad  corporation,  or  railway  company,  and  a  consolidation  of  isw^K.t  i. 

3  two  or  more  railroad  corporations,  or  railway  companies,  or  a  contract  f278."^' 

4  that  either  corporation  or  company  shall  perform  all  the  transportation  §§°6'7,''68.'  ^' 

5  upon  and  over  the  road  of  the  other,  whether  authorized  by  general  laws  Ji^/'j^g^^' 

6  or  a  special  act,  shall  not  be  valid  or  binding  imtil  the  terms  thereof  202  Kiass  277^ 

7  shall,  after  public  notice  and  a  hearing,  have  been  approved  by  the  Op.  a.  6.  ' 

8  department,  and  a  certificate  signed  by  it,  setting  forth  the  vote  of 

9  approval,  shall  have  been  filed  in  the  office  of  the  state  secretary.    The 

10  department  shall  annoimce  its  decision  within  thirty  days  after  the  final 

11  hearing  upon  the  application  of  any  railroad  corporation  or  railway 

12  company  for  permission  to  lease  or  sell  to,  consolidate  with  or  piu-cliase 

13  the  franchise  and  other  property  of,  any  other  railroad  corporation  or 

14  railway  company,  or  to  contract  with  any  other  railroad  corporation 

15  or  railway  company  that  either  corporation  or  company  shall  perform 
l(j  all  the  transportation  upon  and  over  the  road  of  the  other. 

17      This  section  may  be  enforced  as  pro\ided  in  section  two  hundred 
IS  and  fifty-two  of  chapter  one  hundred  and  sixty. 

1  Section  55.     A  contract  for  the  sale  of  railroad  or  railway  rolHng  Conditional 

2  stock  may  stipulate  that  the  title  to  the  property  sold  or  contracted  stock! 

3  to  be  sold  shall  not  vest  in  the  purchaser  until  the  purchase  price  is  lft'.4^^' 

4  fully  paid,  or  that  the  vendor  shall  haxe  and  retain  a  lien  thereon  for  fooH;  Us]  i7^' 

5  the  unpaid  purchase  money  although  possession  thereof  may  be  deliv-  f|/^'j®gg  jqq 

6  ered  immediately  or  at  any  subsequent  time,  and  a  contract  for  the 

7  leasing  or  hiring  of  such  property  may  stipulate  for  a  conditional  sale 

8  thereof  at  the  termination  of  such  contract,  and  that  the  rentals  or 

9  amounts  to  be  received  thereunder,  may,  as  paid,  be  applied  and  treated 

10  as  purchase  money,  and  that  the  title  to  the  property  shall  not  ^'est  in 

11  the  lessee  or  bailee  until  the  purchase  price  is  paid  in  full  and  until  the 

12  terms  of  the  contract  are  performed,  notwithstanding  deli\ery  to  and 

13  possession  by  such  lessee  or  bailee.    No  such  contract  shall  be  valid,  as 

14  against  any  subsequent  attaching  creditor  or  any  subsequent  bona  fide 

15  purchaser  for  value  and  without  notice,  unless  it  is  in  ^witing  executed  by 

16  the  parties  and  acknowledged  by  the  vendee,  lessee  or  bailee  in  the  same 

17  manner  as  deeds  are  acknowledged,  and  recorded  in  the  office  of  the 

18  state  secretary;  nor  unless  each  locomotive,  engine  or  car  so  sold,  leased 

19  or  hired,  or  contracted  to  be  sold,  leased  or  hired  as  aforesaid,  shall  have 

20  the  name  .of  the  vendor,  lessor  or  bailor  plainly  marked  on  each  side 

21  thereof,  followed  by  the  word  "owner",  "lessor",  or  "bailor",  as  the 

22  case  may  be.     Chapter  two  hundred  and  fifty-five  shall  not  apply  to 

23  «uch  contract. 


1684 


COMMON   CARRIERS. 


[Ch.\p.  1.59. 


Recording. 
1894.  .326,  § 
R  L.  Ill, § 
1906,  463,  I 
K  60,  68, 
II,  §  258. 


Section  56.     A  contract  authorized  by  the  preceding  section  shall  1 

be  recorded  by  the  state  secretary  in  a  book  kept  therefor;    and  upon  2 

payment  in  full  of  the  purchase  money  and  the  performance  of  the  terms  3 

and  conditions  stipulated  in  such  contract,  a  written  declaration  thereof  4 

may  be  made  by  the  vendor,  lessor  or  bailor,  or  his  assignee  on  the  margin  5 

of  the  record  of  the  contract,  attested,  or  it  may  be  made  by  a  separate  6 

instrument,  acknowledged  by  the  vendor,  lessor  or  bailor,  or  his  assignee,  7 

and  recorded  as  aforesaid.     Five  dollars  shall  be  paid  to  the  state  secre-  8 

tary  for  recording  such  contract  or  declaration,  and  one  dollar  for  noting  9 

such  declaration  on  the  margin  of  the  record.  10 


crossings  at  gr.\de  between  railroads  and  street  RAILW"AYS. 

Tegukted"^^'"^^  Section  57.  A  railway  shall  not  be  constructed  across  the  tracks  of  1 
1871,' 381,' 1 4^!  a  railroad  nor  shall  a  railroad  be  constructed  across  the  tracks  of  a  rail-  2 
^S95  "^6  Yi'   ^^'^y  ^*  ^^^  same  level  therewith  without  the  consent  of  the  department.     3 

R.  L.  112,  §63.  1906,  463,  I,  §§  21,  68.  187  Mass.  445. 


Supervision  by 
department  of 
crossings. 
1S92,  228. 
R.  L.  Ill,  §27. 
1906,  463. 
I,  §§22,  68. 


Section  58.  In  any  case  in  which  the  consent  or  approval  of  the  de- 
partment required  by  law  for  any  crossing  at  grade  is  gi\'en,  it  may, 
after  notice  to  the  parties  interested  and  a  hearing,  impose  conditions, 
limitations,  restrictions  and  regulations  relative  to  such  crossing,  its 
construction  and  use,  and  may  change  and  modify  them. 


Alteration 
crossings. 
1842,  22. 
G.  S.  63, 
§§  53,  54. 
1872,  262, 
§§1,2. 
1874,  305, 
§§  1,3; 
372,  §  96. 
P.  S.  112, 
1885,  194, 
R.  L.  Ill, 
§  134. 
1902,  533, 
1906,  463, 
§§2,3,68. 

1908,  642, 

1909,  47,  § 
113  Mass. 
116  Mass. 
84. 

141  Mass. 

153  Mass. 

154  Mass. 
164  Mass. 
171  M.ass. 

173  Mass. 

174  Mass. 

175  Mass. 
177  Mass. 
198  Mass. 
203  Mass. 
220  Mass. 
232  Mass. 
236  Mass. 


§129. 
§2. 


5  1. 


§1. 
1. 

100. 
73, 

208. 

218. 

410. 

551. 

135. 

13. 

379. 

430. 

511. 

584. 

304. 

569. 

171. 

260. 


ALTERATION    OF   CROSSINGS. 

Section  59.     If  a  public  way  and  a  railroad  cross  each  other,  and  the  1 

board  of  aldermen  of  the  city  or  the  selectmen  of  the  town  where  the  2 

crossing  is  situated,  or  the  directors  of  the  railroad  corporation,  or  the  3 

directors  of  a  railway  company  having  tracks  on  said  way,  deem  it  neces-  4 

sary  for  the  security  or  convenience  of  the  public  that  an  alteration  not  5 

involving  the  abolition  of  a  crossing  at  grade  should  be  made,  in  the  6 

crossing,  the  approaches  thereto,  the  location  of  the  railroad  or  way,  or  7 

in  a  bridge  at  the  crossing,  they  shall  apply  to  the  county  commissioners,  8 

or,  if  the  crossing  is  situated,  in  whole  or  in  part,  in  Boston,  to  the  de-  9 

partment,  who  shall,  after  public  notice,  hear  all  parties  interested,  and,  10 

if  they  decide  that  such  alteration  is  necessary,  shall  prescribe  the  manner  11 

and  limits  within  which  it  shall  be  made,  and  shall  forthwith  certify  their  12 

decision  to  the  parties  and  to  said  department.     This  proceeding  may  13 

include  any  case  where  there  is  need  of  the  rebuilding  of  a  highway  14 

bridge  or  any  structural  change  or  renewal  in  order  to  strengthen  or  15 

improve  it.    If  any  railway  company  is  authorized  to  lay  and  use  tracks  16 

upon  the  said  way,  the  said  company  shall  bear  such  part  of  the  exjiense  17 

of   building,   rebuilding,  changing,  renewing,  repairing  or  improving  a  IS 

bridge  forming  a  part  of  said  way,  or  of  altering  or  improving  the  ap-  19 

proaches  thereto,  as  the  commission  provided  for  in  sections  sixty-one  20 

and  si.xty-two  deem  just.  21 


telfnand*"  SECTION  60.  If  it  is  decided  that  the  location  of  tlie  railroad  or  of 
assTsS  t'le  way  shall  be  changed,  land  or  other  property  may  be  taken  therefor 

372*'§^97'  ^  ^'  ^y  eminent  domain  on  behalf  of  the  railroad  corporation  or  the  town,  as 
p.  .s.  112,' §130.  the  case  may  be,  under  chapter  seventy-nine,  and  damages  may  be  re- 
§§  2,'3.   '  covered  therefor  under  said  chapter.  R.  l.  hi.  §  135. 


1906,  463,  I,  §§  24,  68. 


171  Mass.  135. 


1S4  Mass.  491. 


ClL\P.    159.]  COMMON  CARRIERS.  1685 

1  Sectiox  61.     A  commission  of  three  disinterested  persons,  appointed  ^^Ye%^°&^ 

2  as  p^o^'ided  in  the  follo^-ing  section,  shall  determine  which  party  shall  9°2),™il^i°^-2 

3  carry  such  decision  into  effect  and  which  party  shall  pay  the  charges  and  istJ,'  372,'  §  98. 

4  expenses  of  making  such  alteration  and  the  futm-e  charges  for  keeping  p.  s.'n2,'§i3i. 

5  such  bridge  or  crossing  and  the  approaches  thereto  in  repair,  as  well  Jflf;  295!  ^  *' 

6  as  the  costs  of  the  application  to  the  county  commissioners,  or  the  ^ise/^'' 

7  department,  and  of  the  hearing  before  said  commission;    and  it  may  j^oo' f^J' f  "• 

8  apportion  all  such  charges,  expenses  and  costs  between  the  railroad  cor-  |L?,^v^|-  Z, 

9  poration,  the  railway  company  haying  tracks  on  said  way,  and  the  is4  Mass'.  491. 

10  counties,  cities  or  towns  where  said  crossing  is  situated  and  other  cities  203  Mass!  304! 

11  and  towns  which  may  be  specially  benefited.     If  a  railway  company  Isi  mS  260. 

12  is  authorized  to  lay  and  use  tracks  upon  any  bridge  in  a  highway  built, 
1.3  repaired  or  altered  as  aboye  pro\'ided  for,  or  the  approaches  to  which 

14  are  altered  or  improyed  as  aboA'e  proyided  for,  the  said  commission 

15  shall  determine  what  part  of  the  charges  and  expenses  of  making  such 

16  changes  or  improyements,  or  of  keeping  such  bridge  or  crossing  and 

17  approaches  in  good  condition,  shall  be  paid  by  said  railway  company. 

1  Section  62.     Upon   application   of  the   county  commissioners,   the  Commission, 

2  department,  the  board  of  aldermen,  the  selectmen  or  the  directors  of  is72,'262r° 

3  the  railroad  corporation  or  of  the  railway  company  for  the  appointment  is74"372',  § 99. 

4  of  such  commission,  the  superior  court  shall  cause  notice  thereof  to  Hlf-^  |f|;  ^  ^• 

5  be  giyen  to  the  other  parties  interested  fourteen  days  at  least  before  ^'i'lii'iih 

6  the  time  fixed  for  the  hearing;   and  thereupon,  after  hearing,  shall  ap-  ^^I'lfi'^A^ 

7  point  such  commission,  one  member  of  which  shall  be  a  member  of  1902;  533',  §  3. ' 

8  and  designated  by  the  department.     The  commission  shall  meet  as  soon  §§  2r,,  as.  ' 

9  as  may  be  after  its  appointment,  and,  after  notice  to  and  a  hearing  of  203Mas3!304! 
10  the  parties,  shall  make  a  WTitten  award  and  return  it  to  said  court.  HI  l\lf^- 1|^; 

1  Section  63.     A  party  aggrieyed  by  said  award  may,  within  fourteen  Revision 

2  days  after  the  retiu-n  thereof,  apply  to  the  court  for  a  jury  to  revise  and  is75!23i, 

3  determine  any  matter  of  fact  found  therein;   and  thereupon  the  court,  is78'.i75.  §  2. 

4  after  notice  to  all  parties  interested,  shall  order  a  trial  by  jury  in  the  R.iiVn.^'^^ 

5  same  manner  as  civil  cases  are  tried  by  jury.    The  decree  of  the  court  ft/Jf  ^^g  j 

6  upon  said  award  or  upon  the  verdict  of  a  jury  shall  be  final  and  binding,  ||o^Iv|;*-  4-4 

7  and  said  court  may  in  equity  enforce  compliance  therewith,  and  also  lw  Mass.  217. 

8  issue  and  enforce  such  interlocutory  decrees  and  orders  as  justice  may  236  Mass.  260'. 

9  require. 

1  Section  64.     The  party  designated  for  that  duty,  having  carried  into  Recovery  after 

2  effect  the  decision  made  under  section  fifty-nine,  may  recover  in  con-  proportion  of 

3  tract  from  any  other  party  the  proportion  awarded  to  be  paid  by  such  is7™202.  §  5. 

4  other  party,  with  interest;  and  if  the  party  so  designated  unreasonably  j^/of.^""' 

5  fails  to  carry  the  decision  into  effect,  any  other  party  affected  by  such  ^  ^  ^^^^  5 134. 

6  failure  may  proceed  to  do  it,  and  may  ^eco^•e^  in  contract  from  each  or  fg^Q^f^gg  j 

7  all  of  the  others  the  proportion  awarded  to  be  paid  by  them,  and  from  §§28, es.' 

8  the  party  so  failing  all  charges,  expenses  and  costs  occasioned  thereby. 

abolition  of  grade  crossings. 

1  Section  65.     The  board  of  aldermen  of  a  city  or  the  selectmen  of  a  Commission  to 

2  town  where  a  public  or  private  way  and  a  railroad  cross  each  other  at  CTossings. 

3  grade,  the  directors  of  the  railroad  corporation,  or  the  directors  of  a  Hlo.  Its',  ^  ^' 

4  railway  company  having  a  location  in  the  part  of  such  public  way  where  ^^  ^'  ^^- 


1686 


COMMON   CARRIERS. 


[Chap.  159. 


1891,  262. 
1894.  216. 
1897,  264. 
R.  L.  Ill, 
§149. 

1902.  440,  §  1. 
1906,  463, 1, 
§§  29.  68. 
158  Mass.  299. 
101  Mass.  259. 
175  IMass.  430. 
183  Mass.  533. 

185  Mass.  100, 
219. 

186  Mass.  128. 
189  Mass.  439. 
194  Mass.  80. 
202  Mass.  585. 

206  Mass.  208. 

207  Mass.  58. 
209  Mass.  298. 
213  Mass.  507. 
219  Mass.  85. 
223  Mass.  408. 
229  Mass.  399. 
236  Mass.  98. 


the  crossing  exists,  or,  upon  instructions  from  the  governor  and  council  5 
given  after  notice  to  parties  interested  and  a  hearing,  the  attorney  gen-  6 
eral,  may  file  a  petition  in  the  superior  court,  stating  that  the  petitioners  7 
deem  it  necessary  for  the  security  and  convenience  of  the  public  that  an  8 
alteration  should  be  so  made  in  such  crossing,  in  the  approaches  thereto,  9 
in  the  location  of  the  railroad  or  public  or  private  way,  or  in  the  grades  10 
thereof,  as  to  avoid  a  crossing  at  grade,  or  that  such  crossing  shoidd  be  11 
discontinued  with  or  without  building  a  new  way  in  substitution  therefor.  12 
Said  court  may  in  equity,  after  notice  by  the  petitioners  to  the  depart-  13 
ment  of  the  entry  of  such  petition,  and  after  such  notice  by  advertisement  li 
or  othemise  as  said  court  shall  order  and  a  hearing,  appoint  a  com-  15 
mission  of  three  disinterested  persons.  Such  commission  shall,  if  the  16 
parties  so  agree,  consist  of  commissioners  of  the  department,  and  they  17 
shall  serve  without  compensation  other  than  their  official  salaries;  and  18 
no  consent  under  section  se^"enty-four  shall  be  required  of  them  actmg  19 
as  the  department  to  their  decisions  as  such  commission.  Upon  all  20 
petitions  for  the  abolition,  discontinuance  or  alteration  of  grade  cross-  21 
ings,  any  railway  company  ha^'ing  a  location  in  the  part  of  the  public  22 
way  where  the  crossing  exists,  shall  be  made  a  party  and  entitled  to  be  23 
heard  as  such.  24 


Costs. 

1902,  298,  §  1. 
1900.  463,  I, 
l§  30,  68. 
183  Mass.  147. 


Sectiox  66.     A  party  bringing  a  petition  under  the  preceding  section  1 

may  have  taxed  as  costs  as  in  other  ci\'il  cases  the  fees  for  ser\-ice  and  2 

cost  of  publication  of  such  petition,  the  entry  fees  in  the  superior  court,  3 

together  with  all  costs  of  hearing  before  the  superior  or  supreme  judicial  4 

coiut,  or  before  any  auditor  or  master  appointed  thereby.  5 


Expense  of 

plans. 

1902,  298,  §  2. 

1906,  463, 1, 

S§31,  68. 

183  Mass.  147. 


Section  67.     A  party  incurring  expense  for  making  plans  required  1 

by  said  commission,  or  for  use  in  court  concerning  any  grade  crossing,  2 

the  abolition,  discontinuance  or  alteration  of  which  is  petitioned  for,  3 

may  in  the  discretion  of  the  court  have  the  cost  of  such  plans  allowed.  4 


Payment. 
1905,  408,  5  1. 
1900,  403,  I, 
§§  32,  68. 


Section  68.     The  fees  and  expenses  of  said  commission,  after  having  1 

been  approved  by  a  justice  of  the  superior  court,  shall  be  paid,  in  the  first  2 

instance,  by  the  railroad  corporation,  but  the  fees  and  expenses  so  paid,  3 

including  the  costs  and  expenses  specified  in  the  two  preceding  sections,  4 

shall  thereafter  be  apportioned  to  and  paid  by  the  respective  parties  as  5 

provided  by  section  se\enty.  6 


Petition  may 
embrace 
several 
crossings. 
1890,  428, 
§§  2,  8. 
1891,33,  §  1. 
R.  L.  Ill, 
§150. 

1906,  463,  I, 
§§  33,  68. 


Section  69.    A  petition  under  section  sixty-five  may  include  several  1 

crossings,  or  several  railroads  crossing  at  or  near  the  same  point,  or  by  2 

order  of  the  court  two  or  more  petitions  may  be  consolidated  and  heard  3 

as  one.     Service  of  such  petition  and  of  all  notices  or  processes  thereunder  4 

may  be  made  upon  the  commonwealth  by  serving  upon  the  attorney  5 

general  personally,  or  by  lea\'ing  m  his  office,  an  attested  copy  thereof.  6 


Commission  to 
prescribe  the 
alterations. 
1890,  428,  I  3. 
1891.33,  §2. 
1894,  216. 
1897,  264. 
R.  L.  Ill, 
§151. 

1902,  440,  I  2. 
1906,  463,  I, 
§§  34,  08. 
1914,  722,  §  1. 


Section  70.     A  commission  appointed  under  section  sixty-five  shall  1 

meet  at  once,  and  if,  after  notice  and  a  hearing,  it  decides  that  the  se-  2 

curity  and  convenience  of  the  pubhc  require  the  alterations  to  be  made,  3 

it  shall  prescribe  the  manner  and  limits  thereof,  and  shall  determine  4 

which  of  the  parties  shall  do  the  \\ork,  or  shall  apportion  the  work  to  be  5 

done  between  each  of  the  railroad  corporations  and  the  city  or  town.  6 
The  railroad  corporations  shall  pay  sixi:y-five  per  cent  of  the  total  actual  ,  7 


CH-^P.   159.]  COMMON  CAKRIERS.  1687 

8  cost  of  the  alterations  as  aforesaid,  including  therein,  in  addition  to  the  lei  Mass.  32. 

9  cost  of  construction,  the  actual  cost  to  the  railway  company  of  chang-  172  Mass.' 5, 

10  ing  its  railway  and  location  to  conform  to  the  decree  of  the  court,  the  179'Mass.  520. 

11  cost  of  the  hearing,  the  compensation  of  the  commissioners  and  audi-  Jit  Mass!  loa 

12  tors  and  all  damages,  except  as  otherwise  provided.    Said  commission  |0|  ^^^s.  1, 

13  may,  subject  to  a  right  of  appeal  to  the  superior  coin-t  by  the  railway  203  Mass.  3m. 

14  company  or  by  the  commonwealth  for  a  revision  by  a  jury  of  the  amount  213  Mass!  se?! 

15  of  such  assessment,  if  a  claim  therefor  is  filed  in  the  clerk's  office  of  "■" 

16  said  court  within  thirty  days  after  the  making  of  such  assessment,  assess" 

17  upon  any  railway  company  made  a  party  to  the  proceedings  such  per- 

18  centage  of  said  total  cost,  not  exceeding  fifteen  per  cent  thereof,  as  may, 

19  in  the  judgment  of  said  commission,  be  just  and  equitable;    and  such 

20  assessment,  as  confirmed  by  the  court,  shall  be  in  lieu  of  any  assess- 

21  ment  or  contribution  required  by  any  special  act  or  grant  of  location. 

22  The  remainder  of  said  total  cost  shall  be  apportioned  by  said  commission 

23  between  the  commonwealth  and  the  city  or  town  where  the  crossings  are 

24  situated,  and  in  making  said  apportionment  said  commission  shall  take 

25  into  account  the  benefits  to  the  city  or  town  and  its  financial  ability,  and 

26  shall  assess  upon  the  city  or  town  such  percentage  of  said  total  cost,  not 

27  exceeding  ten  per  cent  thereof,  as  may  in  the  judgment  of  said  commission 

28  be  just,  and  if  less  than  ten  per  cent  of  such  total  cost  is  assessed  upon 

29  the  city  or  town,  the  difference  between  the  amount  so  assessed  and 

30  said  ten  per  cent  shall  be  assessed  upon  said  railroad  corporations  in 

31  addition  to  said  sixty-five  per  cent,  or  upon  the  commonwealth,  or 

32  shall  be  apportioned  between  said  railroad  corporations  and  the  com- 

33  monwealth,  as  in  the  judgment  of  said  commission  shall  be  just.     Said 

34  commission  shall  equitably  apportion  the  sixty-five  per  cent  and  such 

35  additional  sum,  if  any,  as  may  be  assessed  as  aforesaid,  to  be  paid  by  the 

36  railroad  corporations  between  the  several  railroads  which  are  parties  to 

37  the  proceedings.     If  the  crossing  was  established  after  .June  twenty-first, 

38  eighteen  hundred  and  ninety,  no  part  of  said  cost  shall  be  charged  to  the 

39  commonwealth;  and  such  part  thereof  as  becomes  thereby  unapportion- 

40  able  shall  be  borne  by  the  railroad  corporation,  the  railway  company,  if 

41  any,  and  the  city  or  town,  in  addition  to  the  other  amounts  payable 

42  by  them,  in  such  proportions  as  the  commission  shall  determine.     If 

43  the  crossing  is  of  a  railroad  and  a  private  way,  and  no  crossing  of  a  public 

44  way  is  abolished  in  connection  therewith,  the  entire  cost  as  aforesaid 

45  shall  be  paid  by  the  railroad  corporation.     ^\nienever  in  any  case  where 

46  a  railway  company  has  been  required  to  contribute  to  the  expense  of 

47  abolisliing  a  grade  crossing,  any  of  its  locations  shall  be  so  changed  or 

48  revoked  by  any  board  of  aldermen  or  selectmen  without  its  consent  as  to 

49  render  impossible,  or  in  the  opinion  of  the  department  unprofitable,  the 

50  further  exercise  of  the  pri\ilege  of  operating  its  railway  in  the  part  of  the 

51  public  way  where  such  grade  crossing  has  been  abolished,  the  amount 

52  contributed  by  such  company  to  the  expense  of  abolishing  such  grade 

53  crossing  shall  be  ascertained  by  the  department,  and  certified  to  the  state 

54  treasurer,  who  shall  pay  the  same  to  the  company;  and  any  amount  so 

55  recei\ed  by  the  company  shall  be  expended  only  for  such  construction  or 

56  equipment  purposes  as  the  department  approves. 

1  Section  71.     The  engineer  of  the  department  or  some  person  under  Duties  of 

2  his  direction  shall  examine  the  plans  submitted  to  said  commission,  the  i9o™372,  §  1. 

3  actual  work  of  construction,  and  the  accounts  of  expenditures  submitted  §§"'2.^^' 


1688 


COMMON  CARRIERS. 


[Chap.  159. 


to  auditors  therein,  and  shall  perform  such  other  duties  in  connection  4 
with  proceedings  for  the  abolition  of  grade  crossings  as  may  be  assigned  5 
to  him.  6 


state  highways. 
1910,  498. 
1917,  344.  I, 
§  20,  VIII,  §  1. 
1919,  350, 
§§  111.  113. 


Section  72.     Whenever  a  grade  crossing  is  abolished  upon  a  state  1 

highway,  county  way,  or  way  which  has  been  petitioned  for  as  a  state  2 

highway,  the  said  highway  or  way  shall  be  so  constructed  that  there  3 

shall  be  a  clear  view  in  each  direction  for  at  least  one  hundred  and  fifty  4 

feet  from  the  centre  of  the  said  highway  or  other  way  where  the  same  5 

passes  over  or  under  the  railroad  or  railway,  unless  the  proposed  plan  for  6 

the  abolition  of  the  grade  crossing  is  approved  by  the  division  of  highways  7 

of  the  department  of  public  works.  8 


OT  conSfbution       SECTION  73.     The  amount  of  any  assessment  upon  or  contribution  by  1 

th™I?u''''of'  °^  ^  railway  company  toward  the  cost  of  abolishing  a  grade  crossing  shall  2 

the  property^     bc  dccmcd  aiid  taken  in  all  proceedings  thereafter  as  a  part  of  the  value  3 

of  its  property  for  railway  purposes;    and  such  company  may  issue  4 

stocks  or  bonds  to  such  amount  as  the  department  shall,  subject  to  the  5 

laws  relating  to  the  issue  of  stocks  and  bonds  by  railwa^y  companies,  6 

approve  as  reasonably  necessary  to  pro\ade  for  the  payment  of  such  7 

assessment  or  contribution.  8 


1902,  440, 
1906,  463,  i 
§§  35,  6S. 


13. 


Report  of 
commiasion. 
1890,  428,  §  4. 
1892,  312. 
1894,  216. 
1897,  264. 
R.  L.  Ill, 
§  152. 
1902,  440, 

1905,  408, 

1906,  463,  I, 
§§  36,  68. 
191S,  257, 

§  204;  285. 

1919,  5. 

1920,  2. 

163  Mass.  356. 
169  Mass.  495. 
171  Mass.  228. 
200  Mass.  227. 
202  Mass.  1, 
585. 

20(1  Mass.  208. 
236  Mass.  379. 
4  Op.  A.  G.  199. 


Section  74.  Said  commission  shall  specify  what  part,  if  any,  of  an  1 
existing  public  or  private  way  shall  be  discontinued,  the  grade  for  the  rail-  2 
road  and  the  way,  the  changes  to  be  made  in  the  location  and  grades  of  3 
the  railway  in  such  public  way,  the  general  method  of  construction  and  4 
what  land  or  other  property  it  considers  necessary  to  be  taken,  includ-  5 
ing,  in  its  discretion, an  easement  in  land  adjoining  the  location  of  a  public  6 
or  private  way,  or  of  a  railroad,  consisting  of  a  right  to  have  the  land  of  7 
the  location  protected  by  having  the  surface  of  such  adjoining  land  slope  8 
from  the  boundary  of  the  location  in  a  manner  specified  by  said  commis-  9 
sion;  but  if  such  decision  involves  a  change  in  the  grade  of  the  railroad,  10 
the  consent  of  the  department  to  such  change  shall  first  be  obtained.  11 
■The  commission  shall  forthwith  return  its  decision  to  the  superior  court,  12 
the  decree  of  which,  confirming  such  decision,  shall  be  final  and  binding.  13 
If  said  commission  decides  that  the  location  of  the  railway  shall  be  14 
changed,  the  decree  of  the  court  confirming  such  decision  shall  estab-  15 
lish  the  location  as  thus  changed.  If  said  commission  decides  that  the  16 
location  of  the  railroad  or  of  the  public  or  private  way  shall  be  changed,  17 
the  decree  of  the  court  confirming  such  decision  shall  establish  the  loca-  18 
tion  as  thus  changed,  and  if  it  is  necessary  to  take  land  to  provide  such  19 
new  location,  said  commission  shall  take  the  same  by  eminent  domain  20 
under  chapter  seventy-nine.  Said  taking  shall  be  on  behalf  of  the  city  21 
or  town  if  the  land  or  easement  is  to  be  used  for  or  in  connection  with  a  22 
public  way,  or  on  behalf  of  the  railroad  corporation  if  the  land  or  ease-  23 
ment  is  to  be  used  for  or  in  connection  with  a  private  way  or  by  the  24 
railroad  corporation.  25 


Duinages. 
1890,  428,  §  5. 
1S91.  123. 
1894,  216. 
1897,  264. 
1S98,  200. 
1900,  463. 
R.  L.  HI, 
§  153. 


Section  75.     Ail  damages  sustained  by  any  person  in  his  property  1 

by  the  taking  of  land  for  or  by  the  alterations  of  the  grade  of  a  public  way,  2 

or  by  an  abutter  thereon  by  the  discontinuance  of  such  public  way,  to  3 

the  same  extent  as  damages  are  recoverable  by  abutters  on  ways  dis-  4 

continued  by  towns,  or  by  the  taking  of  an  easement  in  land  adjoining  a  5 


Chap.  159.]  common  c.vrriees.  1689 

6  public  way,  shall  primarily  be  paid  by  the  city  or  town ;  and  all  damages  i903, 478. 

7  caused  by  the  taking  of  land  for  the  railroad  or  by  the  change  or  dis-  igoeUeaii. 

8  continuance  of  a  private  way,  or  by  the  taking  of  an  easement  in  land  ilol^'sgo,  §  i. 

9  adjoining  a  private  way  or  a  railroad  location  in  connection  with  the  aboli-  \f^  Hm-  g™- 

10  tion  of  a  grade  crossing,  shall  primarily  be  paid  by  the  railroad  corpora-  JJ'  ^ass.  494. 

11  tion;  and  all  damages  sustained  by  any  person  by  the  abolition  of  private  i73  Mass.  432. 

12  ways,  except  as  hereinbefore  provided,  shall  be  entirely  paid  by  the  rail-  its  Mass!  loil 

13  road  corporation.    Any  amount  paid  by  way  of  damages  by  either  the  city  ssr..^  '"^'*' 

14  or  town  or  the  railroad  corporation  primarily  liable  therefor  shall  be  sub-  {so  Mass!  71"' 

15  ject  to  investigation  by  the  auditor  named  in  section  seventy-eight,  JlfMasI'lsf' 

16  unless  sucli  settlements  are  assented  to  in  writing  bv  all  parties  in  the  ?55-,, 

..  TP      1  ■         •  1  r>       .  .11  189  Mass.  439. 

I  i  proceedmg.    Ir  the  parties  interested  cannot  agree  upon  said  damages,  wo  Mass.  293. 

10  4-  Ij-UJ  J.I  -Illj.  J.         200  Mass.  400. 

1ft  any  party  may  have  the  damages  determined  under  chapter  seventy-  202  Mass.  1, 

19  nine.    All  expense  resulting  from  the  necessary  relocating  or  changing  203' Mass.  4, 

20  of  streams  and  watercourses  forming  the  natural  drainage  channels  of  209  Mass.  298, 

21  the  territory  where  alterations  of  grades  are  authorized  and  of  sewers,  |}i' Mass,  626. 

22  drains  and  pipes  therein  owned  and  operated  by  a  city  or  town  shall  |}|  Hm- 1^[- 

23  be  primarily  paid  by  said  city  or  town,  and  shall  be  a  part  of  the  actual  221  Mass.  im. 

24  cost  of  the  alterations  specified  in  section  seventy.     The  court  may 

25  allow,  as  part  of  the  costs,  reasonable  expenses  for  surveys  and  plans. 

1  Section  76.     In  any  case  arising  under  the  preceding  section,  where  settlement  of 

2  any  person  sustaining  damage  to  his  property  in  the  manner  therein  by'iTmHSot. 

3  specified  fails  to  bring  a  petition  within  the  time  Umited  by  chapter  ^^^^'  **'^'  ^  ^• 

4  seventy-nine,  the  attorney  general  may  join  with  the  other  parties  inter- 

5  ested  in  a  settlement  of  the  claim  of  such  person;   and  the  proportion 

6  of  the  amount  agreed  upon  in  settlement  thereof  which  would  be  charge- 

7  able  to  the  commonwealth  under  section  seventy  shall  be  paid  by  the 

8  commonwealth  as  if  it  were  a  part  of  the  actual  cost  of  the  work  re- 

9  quired  to  be  done  under  said  section. 

1  Section  77.     After  the  completion  of  the  work,  the  expense  of  main-  Maintenance 

2  tenance  and  repair  shall  be  paid  as  follows:  if  the  public  way  crosses  the  approSfs.^" 

3  railroad  by  an  overhead  bridge,  the  framework  and  flooring  of  the  bridge  JI9?;  33*1 2^' 

4  and  its  abutments  shall  be  maintained  and  kept  in  repair  by  the  railroad  f\^^  ^^^' 

5  corporation,  but  the  approaches  of  the  bridge  and,  if  said  flooring  has  a  J?°3^''5|'^' 

6  wearing  surface,  consisting  of  an  upper  planking,  paving  or  other  surface  1912, 'iso. 

7  material,  such  wearing  surface  of  the  bridge  shall  be  maintained  and  kept 

8  in  repair  by  the  city  or  town  where  situated;   if  the  public  way  passes 

9  under  the  railroad,  the  bridge  and  its  abutments  shall  be  maintained  and 
10  kept  in  repair  by  the  railroad  corporation,  and  the  public  way  and  its 

II  approaches  shall  be  maintained  and  kept  in  repair  by  the  city  or  town 

12  where  situated;  if  several  railroads  cross  a  public  way  at  or  near  a  given 

13  point,  said  commission  shall  apportion  and  award  in  what  manner  and 

14  proportion  each  of  said  railroad  corporations  shall  maintain  and  keep  in 

15  repair  the  framework  of  the  bridge  and  its  abutments  if  the  public  way 

16  crosses  the  railroad  by  an  overhead  bridge,  and  the  bridge  and  its  abut- 

17  ments  if  the  public  way  passes  under  said  railroads. 

1  Section  78.     The  court  shall  appoint  an  auditor,  who  shall  be  a  dis-  Auditor,  duties, 

2  interested  person,  not  an  inhabitant  of  the  city  or  town  where  the  cross-  isoa Tls.'s"?! 

3  ing  is  situated,  whose  compensation  shall  be  determined  by  the  court  iIm^mI; 

4  and  to  whom  shall  from  time  to  time  be  submitted  all  accounts  of  expense  ifL'm'iiss 


1690  COMMON  C.AJIRIERS,  [ChAP.   159. 

1906' 463' I  ^'  incurred  by  the  railroad  corporations,  railway  companies,  if  any,  city,  5 
II 39. 68.'  _  town,  commission  or  auditor,  and  who  shall  audit  the  same  and  make  6 
i9i4!i8. '  _"■  report  thereon  to  the  coiut.  The  auditor  shall  upon  request  of  any  of  7 
172  Mass!  11?:  the  parties  to  the  proceeding  investigate  the  amoimts  presented  for  8 
213  Mass.'  567.'  allowaoce  by  any  city  or  town  or  any  railroad  corporation  as  expended  9 
fljp^A.lj.^yg.  ill  tiis  pajTiient  of  damages  for  land  taken  or  affected  by  reason  of  the  10 
proposed  alteration,  which  have  been  paid  by  the  party  primarily  liable  11 
therefor,  as  provided  in  section  seventy-five,  unless  it  appears  that  all  12 
of  the  parties  to  the  proceeding  for  the  abolition  of  the  grade  crossing  13 
have  assented  in  writing  to  the  payment  or  settlement  so  made  by  the  14 
party  primarily  liable;  and  if  the  auditor  determines  that  the  amoimt  15 
so  paid  is  in  excess  of  what  in  his  opinion  should  have  been  properly  paid  16 
therefor,  he  shall  allow  only  such  portion  of  the  amount  so  paid  as  he  17 
may  deem  to  be  just  and  reasonable.  Such  auditing,  when  accepted  by  IS 
the  court,  shall  be  final.  A  certified  copy  of  such  report  and  the  decree  19 
of  the  court  thereon  shall  be  filed  with  the  state  auditor.  The  court  shall,  20 
from  time  to  time,  issue  its  decrees  for  payments  on  the  part  of  the  rail-  21 
road  corporation  and  on  the  part  of  any  railway  company,  not  exceed-  22 
ing  the  amounts  apportioned  to  them  respectively  by  said  auditor  in  23 
his  report,  and  for  the  paj-ment  by  the  commonwealth  of  a  siun  not  ex-  24 
ceeding  the  amounts  apportioned  to  it  and  to  the  city  or  town;  and  such  25 
city  or  town  shall  repay  to  the  commonwealth  the  amount  apportioned  26 
to  it,  with  interest  thereon,  payable  annually  at  the  rate  of  interest  27 
determined  by  the  state  auditor  as  approximately  that  paid  by  the  com-  28 
monwealth  on  the  last  money  borrowed  for  the  abolition  of  grade  cross-  29 
ings,  from  the  date  of  the  acceptance  of  the  report  of  the  auditor.  Such  30 
repayment  of  the  principal  shall  be  made  annually  in  such  amounts  as  31 
the  state  auditor  designates;  and  the  amount  of  payment  designated  32 
for  the  year,  with  the  interest  due  on  the  outstanding  principal,  shall  be  33 
included  by  the  state  treasurer  in  the  amount  charged  to  such  city  or  34 
town,  and  shall  be  assessed  upon  it  in  the  apportionment  and  assessment  35 
of  its  annual  state  tax.  The  state  treasiuer  shall  in  each  year  notify  36 
such  city  or  town  of  the  amount  of  such  assessment,  which  shall  be  paid  37 
by  it  to  the  commonwealth  as  a  part  of,  and  at  the  time  required  for,  the  38 
payment  of  its  state  tax.  39 

onaw"!™^"'         Section  79.     The  superior  coiu-t  shall  have  jurisdiction  in  equity  to  1 

1895  ins'  ^  ^     enforce  compliance  with  sections  sixty-five  to  eighty-two,  inclusive,  and  2 

R.  l!iii,         with  the  decrees,  agreements  and  decisions  made  thereunder;   and  may  3 

1906,463, 1,      issue  and  enforce  such  interlocutorv  decrees  and  orders  as  justice  may  re-  4 

162  Mass.  564.   cjuirc,  and  any  order,  appointment  or  decree  under  said  sections  may  be  5 

made  in  any  county.  6 

upra^agrefment      Section  80.     If  the  board  of  aldermen  of  a  city  or  the  selectmen  of  a     1 

ations'^""        town  where  a  public  way  and  a  railroad  cross  each  other  and  the  directors    2 

1890. 428,  §  9.    of  the  railroad  corporation  deem  it  necessary  for  the  security  and  con-     3 

§  157.     '         venience  of  the  public  that  alterations  should  be  made  in  such  crossing,     4 

§§  41, 68.'  '      in  the  approaches  thereto,  in  the  location  of  the  railroad  or  public  way    5 

i9is!257'.         or  in  the  grades  thereof,  or  in  a  bridge  at  such  crossing,  or  that  such    6 

m9!'5^*^'        crossing  should  be  discontinued  with  or  without  building  a  new  way  in     7 

i53°Mass  161    Substitution  therefor,  and  they  agree  as  to  the  alterations  to  be  made,     8 

a  written  instrument  signed,  in  behalf  of  a  city,  by  the  mayor,  authorized    9 

by  the  board  of  aldermen,  or  in  behalf  of  a  town,  by  the  chairman  of  the  10 

selectmen,  authorized  by  the  selectmen,  and  by  the  president  of  the  rail-  1 1 


Chap.  159.]  common  c.iRRiERs.  1691 

12  road  corporation,  authorized  by  its  directors,  specifying  the  manner  and 

13  limits  within  which  the  alterations  shall  be  made,  and  by  which  party 

14  the  work  shall  be  done,  or  how  it  shall  be  apportioned  between  the  city 

15  or  town  and  the  railroad  corporation,  the  general  method  of  construc- 

16  tion,  the  grades  for  the  railroad  and  the  public  ways,  and  also  what  land 

17  or  other  property  it  is  necessary  to  take,  and  what  portion,  if  any,  of  an 

18  existing  public  way  is  to  be  discontinued,  and  how  the  cost  thereof  shall 

19  be  apportioned  between  the  city  or  town  and  the  railroad  corporation, 

20  shall  be  valid  and  binding  on  the  city  or  town  and  the  railroad  corpora- 

21  tion,  respectively,  and  have  the  same  force  and  effect  as  a  decree  of  the 

22  court  under  section  seventy-four,  if  the  department,  after  notice  to  all 
2.3  parties  interested  by  adA'ertisement  and  a  public  hearing,  approves  of  the 

24  alterations  set  forth  in  the  agreement  as  necessary  for  the  convenience 

25  and  security  of  the  public.    Said  approval  by  the  department  shall  estab- 

26  lish  the  locations  as  thus  altered,  and  if  it  is  necessary  to  take  land  to  pro- 

27  vide  such  new  locations,  the  department  shall  take  the  same  by  eminent 

28  domain  on  behalf  of  the  city  or  town  and  of  the  railroad  corporation, 

29  respectively,  under  chapter  seventy-nine.    So  much  of  section  seventy- 

30  four  as  relates  to  the  taking  of  land,  and  so  much  of  section  seventj-five 

31  as  relates  to  the  right  of  any  person  to  recover  damages  sustained  in  con- 

32  sequence  of  such  taking  or  of  the  alterations  made  in  pursuance  of  said 

33  decree  shall  apply  to  the  taking  of  land  and  to  damages  sustained  under 

34  an  agreement  made  pursuant  to  this  section.     The  crossing  and  ap- 

35  proaclies  shall  be  maintained  and  kept  in  repair  as  provided  in  section 

36  seventy-seven.    If  the  agreement  provides  for  the  abolition  of  a  public 

37  grade  crossing,  the  department  shall  keep  itself  informed  of  the  progress 

38  and  character  of  the  work  and  of  the  amounts  reasonably  expended  for 

39  work  done  or  for  damages,  so  far  as  rendered  necessary  for  the  abolition 

40  of  the  grade  crossing;  and  for  that  purpose  it  may  employ  any  necessary 

41  agents,  and,  from  time  to  time  as  it  may  consider  proper,  shall  issue 

42  certified  statements  of  the  amount  legally  and  properly  expended  for 

43  such  abolition  of  a  grade  crossing;    and  the  commonwealth  shall  pay 

44  twenty  per  cent  of  such  expenditure  to  the  parties  entitled  thereto  under 

45  the  agreement. 

1  Section  81.     A  final  decree  shall  not  be  entered  by  the  superior  court  Department 

2  upon  any  report  of  a  commission  setting  forth  a  plan  for  the  abolition,  dis-  etc'fbef™e''  '^°' 

3  continuance  or  alteration  of  a  grade  crossing,  adopting  or  confirming  such  isoo.^'^s!'!'  ii. 

4  plan  or  authorizing  any  expense  to  be  charged  against  the  commonwealth,  f)^g  ^^^• 

5  until  the  department,  after  a  hearing,  shall  have  certified  in  writing  that  Jgoo' Im' | "' 

6  in  its  opinion  the  adoption  of  such  plan,  the  expenditure  to  be  incurred  §§  43.  es.' 

7  thereunder  and  the  apportionment  of  the  expense  between  the  several  i9i4',722;  §  2. 

8  parties  to  the  proceedings  are  consistent  with  the  public  interests,  and 

9  are  reasonably  requisite  to  secure  a  fair  distribution  between  the  different 

10  cities,  towns  and  railroads  of  the  commonwealth,  of  the  public  money 

11  authorized  to  be  expended  for  the  abolition  of  grade  crossings,  and  that 

12  such  expenditure  will  not,  in  the  judgment  of  the  department,  exceed 

13  the  amounts  provided  therefor  to  be  paid  by  the  commonwealth.    If  the 

14  members  of  the  department  are  commissioners  under  section  sixty-fi^'e, 

15  the  certificate  herein  provided  for  may  be  issued  by  said  department  with- 

16  out  a  hearing. 

1  Section  82.     Sections  fifty-nine  to  sixty-four,  inclusive,  of  this  chap-  certain  pr<>- 

2  ter  and  sections  one  hundred  and  eight,  one  hundred  and  eleven,  one  ™kp"piy.'" 


1692 


COMMON  CARRIERS. 


[Ch.\p.  159. 


1S90,  428.  §  12. 
R.  L.  Ill, 
§  160. 

1906,  463,  I, 
§§  45,  68. 


hundred  and  twelve,  one  hundred  and  thirteen  and  two  hundred  and  3 

fifty-two  of  chapter  one  hundred  and  sixty,  ,so  far  as  they  relate  to  pro-  4 

ceedings  for  the  abolition  of  grade  crossings,  shall  not  apply  to  cases  5 

within  the  provisions  of  the  preceding  seventeen  sections.  6 


Examination 
of  railroad  and 
street  railway 
bridges. 
1887,  334, 
l§  1-3. 
1899,  286. 
R.  L.  Ill, 
§169. 

1906,  463, 1, 
§§  58,  68. 


EAILRO.U)  AND  STREET  RAILWAY  BRIDGES.      ■ 

Section  83.  E-\'ery  railroad  corporation  and  railway  company  shall,  1 
upon  request  of  the  department,  and  at  least  once  in  two  years,  cause  2 
an  examination  of  its  bridges  and  of  the  approaches  thereto  to  be  made  3 
by  a  competent  engineer,  who  shall  report  the  result  of  his  examination,  4 
his  conclusions  and  recommendations  to  the  corporation  or  company,  5 
and  it  shall  forthwith  transmit  a  copy  of  the  report  to  the  department.  6 
Before  a  railway  company  builds  a  bridge,  it  shall  first  submit  the  plans  7 
thereof  to  the  department  for  appro^•al.  Upon  the  completion  of  a  new  8 
bridge,  the  railroad  corporation  or  railway  company  shall  forthwith  cause  9 
such  examination  and  report  to  be  made  and  transmitted  to  the  depart-  10 
ment.  The  report  shall  furnish  such  information,  in  such  detail  and  ^ith  11 
such  drawings  or  prints,  as  may  be  requested  in  MTiting  by  the  depart-  12 
ment.  The  department  may  make  further  examination  of  the  bridge  13 
structure  if  necessary  or  ex]3edient.  This  section  shall  not  exempt  a  14 
corporation  from  making  other  and  more  frequent  examination  of  its  15 
bridges  and  the  approaches  thereto.  16 


Maintenance 
and  repair. 
1908.  552,  5  1. 
236  Mass.  260. 


Section  84.  If  the  county  commissioners  of  a  county,  the  board  of  1 
aldermen  of  a  city  or  the  selectmen  of  a  town  where  a  bridge  at  the  cross-  2 
ing  of  a  public  way  and  a  railroad,  or  a  bridge  upon  which  a  railway  3 
company  is  authorized  to  lay  and  use  tracks,  is  located  in  whole  or  in  4 
part,  or  the  directors  of  a  corporation  owning  or  operating  such  railroad,  5 
or  the  directors  of  a  company  owning  or  operating  such  railway,  are  6 
of  the  opinion  that  such  bridge  is  in  need  of  maintenance  or  repair,  they  7 
may  apply  to  the  department,  which  shall,  after  public  notice,  hear  all  8 
persons  interested,  and,  if  it  decides  that  the  work  of  maintenance  or  9 
repair  is  necessary,  shall  prescribe  the  manner  in  and  the  limits  within  10 
which  it  shall  be  done,  and  shall  forthwith  certify  its  decision  to  the  11 
parties.  12 


woass",™!  Section  85.  If  railroad  corporations,  railway  companies,  counties, 
210  Mass.  229.   cities,  towTis,  or  any  of   them,  jointly  or  se^'erally,  are  charged  with 

the  duty  of  maintaining  or  repairing  any  such  bridge  under  any  provision 

of  law,  agreement,  or  decree  of  court,  and  if  the  parties  so  charged  with 
■   such  duty  refuse  or  neglect  to  carry  into  effect  such  decision  within  a 

reasonable  time,  any  other  such  party  may  apply  to  the  superior  court, 

which  may  in  equity  enforce  such  decision. 


RAILRO.AD,   STREET  R.ULW.\T  .IND  STE.\MBO.\T  RELIEF  CORPOR.\TIONS. 

Section  86.     Seven  or  more  persons,  a  majority  of  whom  are  residents  1 

of  the  commonwealth,   being  employees  of  any  railroad,  railway  or  2 

steamboat  corporation,  organized  under  the  laws  of  the  commonwealth,  3 

may  form  a  corporation  under  cha])ter  one  hundred  and  eighty  for  the  4 

168*11383.213.   purpose  of  receiving,  managing  and  applying  such  property  and  funds  5 

as  it  may  receive  by  contribution,  assessment  or  otherwise  for  the  im-  6 


Railroad,  etc., 
relief  corpora- 
tions. 

1882,  244,  §  1. 
1890,  ISl,  §  1. 
R.  L.  125,  I  17, 
1906.  46.3,  I, 
'  ]  46,  68, 


Chap.  159.]  common  carriers.  1693 

7  provement  and  benefit  of  its  members,  and  for  their  relief  and  the  relief 

8  of  their  families  in  case  of  sickness,  injury,  inability  to  labor,  or  other 

9  cases  of  need. 

1  Section  87.     The  by-laws  of  such  corporation  shall  be  approved  by  By-iaws, 

2  the  department,  and  shall  prescribe  the  manner  in  which,  and  the  officers  i882,"244, 

3  and  agents  by  whom,  the  purpose  of  its  incorporation  may  be  carried  out,  fj^  h.%5,  §  is. 

4  and  also  the  manner  in  which  its  property  may  be  invested.    Such  cor-  §|°47*||'  ^' 

5  poration  shall  annually,  and  as  often  as  may  be  required  by  the  depart- 

6  ment,  render  to  it  such  statements  of  its  membership  and  financial  trans- 

7  actions  and  such  other  information  relative  thereto  as  the  department 

8  may  consider  necessary  for  a  proper  exliibit  of  its  business  and  standing. 

9  The  department  may  verify  such  statement  by  an  examination  of  the 

10  books  and  papers  of  the  corporation;   and  whoever,  having  charge  or 

11  custody  of  such  books  and  papers,  neglects  to  comply  with  this  section 

12  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars. 

1  Section  88.     A  railroad  corporation  operating  a  railroad  or  portion  Railroad,  etc, 

2  thereof  in  the  commonwealth,  or  a  railway  company,  may,  by  vote  of  associate  with 

3  its  directors,  associate  itself  with  seven  or  more  of  its  employees  in  iggis.Tir' 

4  forming  a  corporation  under  section  eighty-six,  or  may,  upon  the  invi-  ^^l'  J^g'  |  ^g 

5  tation  of  any  such  corporation,  become  a  member  thereof,  and  may  from  J?°4^*g|''' 

6  time  to  time  aid  such  corporation  by  contributions  to  its  funds  or  other- 

7  wise.     The  by-laws  of  such  corporation  shall  provide  for  the  manner  in 

8  which  the  railroad  corporation  or  railway  company  shall  vote  and  be 

9  represented  in  said  corporation.     The  funds  of  such  corporation  shall 

10  not  be  liable  to  attachment  by  trustee  process,  or  be  liable  to  be  taken 

11  on  execution  or  on  any  other  process,  legal  or  equitable,  to  satisfy  any 

12  debt  or  liability  of  the  railroad  corporation  or  railway  company  or  of 

13  any  member  of  the  corporation. 


RAILROAD,   street  RAILWAY  AND  STEAMBOAT  POLICE. 

1  Section  89.     The  mayor  of  a  city,  or  the  selectmen  of  a  town,  upon  the  Railroad,  etc., 

2  petition  of  a  railroad  corporation  having  a  passenger  station  therein,  or  istTssi, 

3  of  a  railway  company  operating  a  railway  therein,  or  of  a  common  carrier  1874, 372, 

4  of  passengers  by  water  for  hire  having  a  usual  place  of  receiving  or  fssa'ss,  §  1. 

5  discharging  passengers  therein,  may  appoint  as  many  of  the  persons,  ^^^^  ^^^^  ^  *^- 

6  designated  in  said  petition,  as  police  officers  as  they  may  deem  proper  i^Miog' 

7  for  the  purposes  and  with  the  powers  hereinafter  set  forth.  §§  13. 21.' 

1906,  403,  I,  §§  49,  68.  196  Mass.  353. 


1  Section  90.     An  attested  copy  of  the  record  of  all  such  appointments  Copy  of  ap- 

2  shall  be  filed  by  the  petitioner  with  the  clerk  of  every  city  or  town,  other  Ee'm'eT" 

3  than  the  city  or  town  of  appointment,  where  the  railroad  corporation  or  llil',  372]  ^  ^' 

4  railway  company  operates  its  cars,  or  such  carrier  is  accustomed  to  re-  fgVs^go, 

5  ceive  or  discharge  passengers,  and  where  it  is  intended  that  such  police  p^^y'i^o-j^'i^ 

6  officers  shall  act;  and  the  filing  of  such  attested  copy  shall  constitute  }{^"f'joif  }i 

7  the  persons  named  therein  railroad,  railway  or  steamboat  police,  re-  looii, 4ti3;  i, 

8  spectively,  within  such  city  or  town,  and  upon  the  boats  or  vessels  of      ""  '    ' 

9  such  carriers  by  water,  wliile  within  the  boundaries  of  tlie  commonwealth, 
10  and  shall  be  conclusive  evidence  of  the  regularity  of  their  appointment. 


1694 


COMMON   CARRIERS. 


[Chap.  159. 


Term  of  office. 

1871,331, 

§§  1,9. 

1874,  372. 

§  143. 

ISSO,  85,  5  2. 

P.  S.  103,  §  15. 

18S3,  65. 

R.  L.  108,  §  15. 

1906,  463,  I, 

§§  51,  68. 

1918,  257, 
§364. 

1919,  S. 

1920,  2. 


Section  91.     Such  police  officers  shall  be  sworn  before  a  justice  of  1 

the  peace,  notary  public  or  special  commissioner,  and  shall  hold  their  2 

offices  until  their  appointment  is  revoked  by  the  mayor  of  the  city  or  the  3 

selectmen  of  the  town  where  they  are  appointed ;  but  such  petitioner,  4 

upon  ceasing  to  require  the  services  of  any  of  such  officers,  shall  file  a  5 

notice  to  that  effect  with  the  clerk  of  the  city  or  town  where  he  is  ap-  6 

pointed,  and  with  the  clerks  of  the  several  cities  and  towns  where  notice  7 

of  such  appointment  has  been  filed,  and  thereupon  the  power  of  such  S 

officer  shall  cease.  9 


Badges. 
1871,331,  §  3. 
1874,  372, 
§  144. 

1880,  85,  §  3. 
P.  S.  103,  §  16. 

1895,  318,  §  2. 

1896,  225,  §  2. 
R.  L.  108, 

§§  16,  22. 
1906,  463, 1, 
§§  52,  68. 


Section  92.    Such  police  officers  shall,  when  on  duty  except  as  detec-  1 

tWes,  wear  in  plain  sight  a  metallic  badge,  inscribed  with  the  words,  2 

"Railroad  Police",  "Street  Railway  Police",  or  "Steamboat  Police",  .3 

as  the  case  may  be,  and  the  name  or  initials  of  the  corporation  or  com-  4 

pany  for  which  they  are  appointed ;  and  the  presence  of  any  such  officer  5 

on  the  cars,  steamboats  or  premises  of  the  corporation  or  company  upon  6 

whose  petition  he  was  appointed,  wearing  such  badge,  shall  be  prima  7 

facie  evidence  that  he  is  lawfully  upon  duty.  g 


Powers  of 
police. 
1871,331, 
§§  4,  5,  7. 
1874,  372, 
§§  145,  146. 
1880,  85,  §  4. 
P.  S.  103, 
§§  17,  18. 
1895,  318,  §  3 
R.  L.  108, 
§§17-19,23. 
1906,  463,  I, 
§§  53,  68. 
143  Mass.  228. 
148  Mass.  119 
193  Mass.  2S0. 
210  Mass.  1.59, 
216  Mass.  178, 
219  Mass.  341 


Section  93.  Railroad,  railway  or  steamboat  police  officers  may  pre-  1 
serve  order  on  the  premises,  cars,  vessels  and  boats  of  the  corporation  2 
or  company  upon  whose  petition  they  are  appointed  and  at  the  wharves  3 
and  landing  places  owned  or  used  by  such  carrier  by  water;  may,  with-  4 
out  a  warrant,  arrest  an  idle,  noisy,  intoxicated  or  disorderly  person  5 
upon  such  premises,  cars,  vessels  or  boats;  or  a  passenger  upon  such  6 
cars,  vessels  or  boats  who  refuses  to  pay  his  fare,  and  remove  him  to  7 
the  baggage  or  other  suitable  car  or  place;  may,  without  a  warrant,  8 
arrest  any  person  committing  any  of  the  offences  specified  in  section  one  9 
hundred  and  four;  and  railway  police  officers  may,  without  a  warrant,  10 
arrest  any  person  committing  any  of  the  offences  specified  in  section  11 
ninety-four  of  chapter  one  hundred  and  sixty-one.  12 


Arrest. 
Duties  of 
police. 
1895,  318,  §  3 


§54 
1914,  423. 
193  Mass.  280, 


Section  94.  The  person  so  arrested  by  railroad  or  railway  police  1 
officers  shall  be  taken  to  the  police  station  or  other  place  of  lawful  deten-  2 
1906  463' f  ^^'  ^^^^  ^  *'^®  ^^^y  °'"  to^'ii  where  the  arrest  is  made,  or  in  the  city  or  town  3 
where  the  car,  boat  or  vessel  next  stops,  or  in  any  city  or  town  of  the  4 
same  or  adjoining  county  through  which  the  car  passes  after  the  arrest;  5 
he  may  be  placed  in  charge  of  a  police  officer  or  coiistable  in  either  of  6 
such  cities  or  towns,  to  be  taken  to  a  lawful  place  of  detention  within  7 
twenty-four  hours  after  the  time  of  such  arrest,  Sunday  excepted.  Com-  8 
plaint  shall  be  made  against  the  person  arrested  by  the  officer  taking  him  9 
to  the  place  of  detention,  for  the  offence  for  which  he  Avas  arrested,  to  a  10 
district  court,  or  trial  justice  having  jurisdiction  of  such  offences  com-  11 
mitted  in  the  city  or  town  where  such  person  is  detained,  and  such  court  12 
or  justice  shall  have  jurisdiction  of  the  case.  13 


Compensation. 
Liability. 
1874,  372, 
§147. 

P.  S.  103,  §  20. 
R.  L.  108,  §  20. 
1906,  463, 1, 
§§  55,  68. 
210  Mass.  159. 


Section  95.  Railroad,  railway  and  steamboat  police  officers  shall 
be  paid  by  the  corporation  or  company  upon  whose  petition  they  are 
appointed.  Such  corporation  or  company  shall  be  liable  for  any  official 
misconduct  of  such  officers  to  the  same  extent  as  for  torts  of  agents  or 
servants  in  their  employ. 


Chap.  159.]  common  carriers.  1695 


ACTION.S    AGAINST    RAILROADS    AND    STREET    RAILWAYS    FOR    LABOR    AND 

M.\TERIALS. 

1  Section  96.     A  person  to  whom  a  debt  is  due  for  labor  performed  or  Action  ag.ainst 

2  for  materials  furnished  and  actually  used  in  constructing  a  railroad  or  ?oad"°[aii- 

3  railway  under  a  contract  with  a  person  other  than  the  railroad  cor-  andmateJiais. 

4  poration  or  railway  company,  who  has  authority  from  or  is  rightfully  p'^i'u^'^iis 

5  acting  for  such  corporation  or  company  in  furnishing  such  labor  or  ma-  Pj;h^^'' 

6  terials,  shall  have  a  right  of  action  against  such  corporation  or  company  i904,'373. 

7  to  recover  such  debt  with  costs,  except  as  provided  in  the  four  following  §§  218. 238, ' 

8  sections.  115  Mass.  SSO.  121  Mass.  510.  158.^^"^' 

174  Mass.  45.  204  Mass.  494.  226  Mass.  148. 

1  Section  97.     A  person  who  has  contracted  to  construct  the  whole  Contractor  not 

2  or  a  specified  part  of  such  railroad  or  railway  shall  not  have  such  right  of  Icti'on.''  ^"'^'' 

3  action.  is73,  ssa,  §  2.  p.  s.  112,  §  144.  r.  l.  111,  §  105. 

1904,  373.  1906,  463,  II,  5§  219,  258,  III,  |§  118,  158.  226  Mass.  148. 

1  Section  98.     A  person  shall  not  have  such  right  of  action  for  materials  Notice  of  in- 

2  furnished,  unless,  before  beginning  to  furnish  them,  he  files  in  the  ofBce  fikd!°° '°  ^^ 

3  of  the  clerk  of  the  city  or  town  where  any  of  the  materials  are  to  be  p^s^'na^'^*" 

4  furnished  a  ■s\Titten  notice  of  his  intention  to  claim  such  right,  in  the  |{'l''iii 

5  manner  provided  for  filing  the  statement  named  in  the  following  section.  5  is^. 

'^  ^  °  1904, 373. 

1906,  463,  II,  §§  221,  25S,  III,  §§  120,  158. 

1  Section  99.     A  person  shall  not  have  such  right  of  action  for  labor  statement  of 

2  performed,  unless,  within  thirty  days  after  ceasing  to  perform  it,  he  files  t™befiied. ''*' 

3  in  the  office  of  the  clerk  of  a  city  or  town  where  any  of  said  labor  was  ^'i'ui'iiis. 

4  performed  a  written  statement,  on  oath,  of  the  amount  of  the  debt  so  due  f^^^  y„^'  ^  ^'^^■ 

5  him  and  of  the  name  of  the  persons  for  whom  and  by  whose  employment  }?°'',-i''^J^' 

6  the  labor  was  performed.    Such  right  of  action  shall  not  be  lost  by  a  iii,§§'n9,' 

7  mistake  in  stating  the  amount  due;   but  the  claimant  shall  not  recover  127' Mass.  101. 

8  as  damages  a  larger  amount  than  is  named  in  said  statement  as  due  to 

9  him,  with  interest  thereon. 

\ 

1  Section  100.     Such  action  shall  not  be  maintained  unless  begun  within  Limitation 

2  sixty  days  after  the  plaintiff  ceased  to  perform  such  labor  or  to  furnish  iots.'sss,' §  5. 

3  such  materials.  p.  s.  112,  §  147. 

R.  L.  Ill,  §  168.  1904,373.  1906,  463,  II,  §§  222,  258,  III,  §§  121,  158. 

OFFENCES  RELATING  TO  RAILRO.U)S  AND   STREET  RAILW.WS. 

1  Section  101.     Whoever  fraudulently  evades  or  attempts  to  evade  the  Evasion  of 

2  payment  of  a  toll  or  fare  lawfully  established  by  a  railroad  corporation  nfre"^"'  °' 

3  or  railway  company,  either  by  giving  a  false  answer  to  the  collector  of  J^s?!  240,'  1 1; 

4  the  toll  or  fare,  or  by  traveling  beyond  the  point  to  which  he  has  paid  ^<  ii|^J4i 

5  the  same,  or  by  leaving  the  train  or  car  without  having  paid  the  toll  or  jl^j'  p9,  §  33. 

6  fare  established  for  the  distance  traveled,  or  otherwise,  shall  forfeit  not  1874!  372', 

7  less  than  five  nor  more  than  twenty  dollars.    Whoever  does  not  upon  p.  .s.  112,  §  197. 

8  demand  first  pay  such  toll  or  fare  shall  not  be  entitled  to  be  transported  f  251.^^'' 

9  for  any  distance,  and  may  be  ejected  from  a  railway  car;   but  no  person  |§°64.*6^|.'  ^' 

10  shall  be  removed  from  a  car  of  a  railroad  corporation  except  as  provided  |i|  ^^^^-  ®*' 

11  in  section  ninetv-three,  nor  from  a  train  except  at  a  regular  passenger  ^li  JJ**^- J?!- 

.  v^  1  ox-oi,g  Mass.  04. 

12  station.  1S5  Mass.  279.  216  Mass.  178.  222  .Mass.  121. 


1696 


RAILRO.UJS. 


[Chap.  160. 


b°mMked°  SECTION  102.     No  railroad  corporation  or  railway  company  or  any 

1908,495.  ofBcer  or  employee  thereof  shall  use  or  deposit  a  torpedo  or  other  ex- 
plosive upon  or  near  the  tracks  of  any  railroad  or  railway  for  the  pur- 
pose of  signalling  or  otherwise,  unless  there  is  plainly  and  conspicuously 
stamped  or  otherwise  permanently  marked  thereon  in  a  manner  ap- 
proved by  the  department  a  word  or  words  indicating  that  such  torpedo 
or  other  explosive  is  dangerous. 


Section  103.     Wlioever  unlawfully  and  intentionally  injures,  molests 


Injury  to 
signals. 

p^s^'m  §207  or  destroys  any  signal  of  a  railroad  corporation  or  railway  company, 

1884,5. 
1899,  252. 
R.  L.  111. 
§262. 

1906,  463,  I, 
§§  65,  68. 


or  any  line,  wire,  post  or  other  structure  or  mechanism  used  in  connec- 
tion with  such  signal,  or  prevents  or  in  any  way  interferes  with  the 
proper  working  of  such  signal,  shall  be  punished  by  a  fine  of  not  more 
than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  two 
years,  or  both. 


Throwing  mis- 
siles, etc 


R.  L.  Ill 

§260. 

1906,  463,  I, 
§§  66,  63. 
145  Mass.  403, 
575. 


Section  104.  Whoever  wilfully  throws  or  shoots  a  missile  at  a  locomo-  1 
Kl\'n2°§206.  tiv6  engine,  or  railroad  or  railway  car  or  train,  or  at  a  person  on  such  2 
engine,  car  or  train,  or  in  any  way  assaults  or  interferes  with  a  con-  3 
ductor,  engineer,  brakeman,  or  motorman,  while  in  the  performance  of  4 
his  duty  on  or  near  such  engine,  car  or  train,  shall  be  punished  by  a  5 
fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not  6 
more  than  one  year,  or  both.  A  person  so  offending  may  be  arrested  7 
without  a  warrant  by  an  officer  authorized  to  serve  criminal  process,  8 
and  kept  in  custody  in  jail  or  other  convenient  place  not  more  than  9 
twenty-four  hours,  Sundays  and  legal  holidays  excepted,  at  or  before  the  10 
expiration  of  which  time  he  shall  be  taken  before  a  proper  court  or  mag-  1 1 
istrate,  and  proceeded  against  according  to  law.  12 


General  juris- 
diction, powers, 
etc.,  of  tlie  de- 
partment not 
to  be  limited, 

1913,  784,  §  29. 
224  Mass.  463. 
Op.  A.  G. 
(1920). 


general  jurisdiction    and    POWER.S    OF   THE   DEPARTMENT. 

Section  105.     The  jurisdiction,  powers,  authority  and  discretion  dele-  1 

gated  to  the  department  by  sections  ten  to  twenty-six,  inclusive,  of  this  2 

chapter  and  section  one  hundred  and  eighty-five  of  chapter  one  hundred  3 

and  sixty  shall  not  be  limited  by  other  provisions  of  law  contained  in  4 

chapters  one  hundred  and  fifty-nine  to  one  hundred  and  sixty-three,  5 

inclusive,  or  in  chapter  one  hundred  and  sixty-six,  nor  shall  such  pro-  6 

visions  prevent  the  department  from  exercising  to  the  fullest  extent  such  7 

jurisdiction,  powers,  authority  and  discretion.  8 


CHAPTER    160, 


RAILROADS. 


Sect. 

1.  Definitions. 

2.  Application  to  certain  matters  arising 

in  Boston. 


CORPORATIONS  SUBJECT  TO  THE  PROVISIONS 
OF    THIS    CHAPTER. 

3.  Corporations  subject  to  this  chapter. 

4.  Corporation  chartered  by  concurrent 

legislation. 


Sect. 

5.  Corporation  or  trustees  operating  rail- 

roads of  other  corporations. 

RIGHTS  RESERVED  BY  THE  COMMONIVEALTH. 

6.  Rights  reserved  by  commonwealth. 

7.  Commonwealth  may  take  railroad. 

SPECIAL   CH.\RTERS. 

S.  Petition  for  charter  to  be  accompanied 
by  report  of  engineer,  map,  etc. 


Chap.  160.] 


RAILROADS. 


1697 


Sect. 

9.  Plans,  etc.,  to  be  deposited  in  state 
library. 

10.  Petition  not  to  be  acted  upon  until 

notice,  etc. 

11.  Railroad  to  be  "within  limits  specified. 

12.  Chartered  railroads  to  be  located,  etc.. 

under  this  chapter. 

INCORPORATION    UNDER    GENER.\I,   LAWS. 

13.  Incorporation  of  railroad  corporations. 

14.  Agreement   of   association,   corporate 

name,  etc. 

15.  Associates'  authority. 

16.  Publication  of  agreement  of  associa- 

tion. 

17.  Certificate  of  public  convenience  and 

necessity. 

18.  Map  of  route,  report  of  engineer  and 

estimates. 

19.  Submission  of  map,  etc.,  to  board  of 

aldermen,  etc. 

20.  Route  may  be  agreed  upon. 

21.  Proceedings  on  failure  to  agree. 

22.  Spurs  and  branches. 

23.  Certificate,  map  and  report  to  be  de- 

posited with  department. 

24.  Certificate    of    compliance.       Filing. 

Certificate  of  incorporation.  Form 
of  certificate.  Certificate  to  be  re- 
corded. 

25.  Increase    and    reduction    of    capital 

stock.     Change  of  gauge  regulated. 

26.  Proceedings  void. 

27.  Limit  of  time  for  construction  of  rail- 

road. 

28.  Capital  stock  of  narrow  gauge   rail- 

roads. 

ORGANIZATION. 

^9.  First  meeting  of  incorporators. 

30.  Organization. 

OFFICERS. 

31.  Officers. 

32.  Election  of  officers. 

MEETINGS. 

33.  Meetings     of     stockholders;      notice, 

quorum,  etc. 

34.  Special  meetings. 

35.  Voting  rights  of  corporation  upon  its 

own  stock. 

36.  Voting  rights  of  stockholders. 

37.  Meetings  of  directors. 

CAPITAL   STOCK. 

38.  Stock  certificates. 

39.  Assessments  upon  shares. 

40.  Collection  of  assessment. 

41.  Purposes  for  which  capital  stock  may 

be  increased. 

42.  Forfeiture  for  unauthorized  increase  of 

capital  stock. 

43.  Preferred  stock,  issue  of. 


Sect. 

44.  Designation  of  preferred  stock,  etc. 

45.  Preferred  stock;    voting  power,  limi- 

tation on  amount. 

46.  Preferred  stock  to  be  offered  to  stock- 

holders, etc. 

ISSUE    OF    STOCK,  BONDS,  ETC. 

47.  Issue  of  capital  stock,  bonds,  coupon 

notes,  and  other  evidences  of  in- 
debtedness. 

48.  Approval  of  issue  of  bonds,  coupon 

notes  and  other  evidences  of  in- 
debtedness.    Penalty. 

BONDS  AND   MORTGAGES. 

49.  Registered  bonds. 

50.  Securities  collectible. 

51.  Trustees  entitled  to  possession  may 

contract  with  corporation  to  oper- 
ate railroad. 

52.  Trustees  in  possession  to  call  annual 

meetings. 

53.  Election  and  confirmation  of  trustees. 

54.  Equity  jurisdiction  of  supreme  judi- 

cial court. 

55.  Rights  of  purchaser  under  foreclosure. 

STOCK   AND    SCRIP   DIVIDENDS. 

56.  Stock   or   scrip   dividends   forbidden, 

when. 

57.  Liability  of  directors. 

CONNECTING    RAILROADS. 

58.  Connecting  railroad  companies  may 

use  each  other's  roads. 

59.  Compensation  for  drawing  cars. 

60.  Determination   of   rates   for  drawing 

cars,  etc. 

61.  Connecting  roads  chartered  by  other 

roads. 

62.  Connecting  companies  may  contract 

that  one  shall  perform  all  transpor- 
tation for  the  other. 

63.  Term  of  lease  not  to  exceed  ninety- 

nine  years. 

TAKING     SECURITIES     OP     OTHER     CORPORA- 
TIONS. 

64.  Taking   securities   of    other    corpora- 

tions. 

65.  Stock  in  a  telegraph  company. 

66.  Guaranty  of  bonds  of  steamship  com- 

panies. 

67.  Railroad    corporation    may     become 

associate  in  grain  elevator  corpora- 
tion. 

68.  Connecting  roads  may  guarantee  each 

other's  bonds. 

69.  Railroad  corporations  may  aid  in  con- 

struction of  branches,  etc. 

70.  Railroad  companies  may  invest  in  se- 

curities of  terminal  companies;  may 
operate  steamship  companies,  docks, 
etc. 


1698 


EAILKOADS. 


[Chap.  160. 


Sect, 
consolidation  of  railroad  companies 
restrained. 

71.  Corporations  owning,  etc.,  railroad  not 

to  acquire  stock  in  domestic  rail- 
road. 

72.  Department  to  pass  on  consolidation 

and  report  to  general  court. 

73.  Rates  not  to  be  increased  or  facilities 

diminished  by  consolidation. 

74.  Penalties. 


LOCATION  AND  CONSTRUCTION  OP  RAILROAD. 

Conditions  Precedent. 

75.  Establishing  method  for  crossing  liigh- 

ways. 

76.  Prerequisites  to  use  of  land  for  rail- 

road. 

77.  Location  not  to  be  within  three  miles 

of  state  house. 

Purchase  of  Land. 

78.  What  may  be  purchased. 

79.  Location  of  purchased  land. 

Taking  by  Eminent  Domain. 
SO.  Filing  of  location. 

81.  Change  of  location  to  avoid  grievous 

damage. 

82.  Taking  of  land  for  location  of  tracks. 

83.  Taking  of  property  for  other  purposes. 

84.  Taking  land  of  other  railroads,  etc. 

Change  of  Location. 

85.  Improvement  of  alignment. 

86.  Direction  of  road  may  be  varied. 

Miscellaneous. 

87.  Land  outside  limit  taxable. 

88.  No  prescriptive  right  in  land  of  cor- 

poration. 

89.  Rules  as  to  form,  etc.,  of  records,  etc. 

Embankfnents,  Fences,  etc. 

90.  Fencing. 

91.  Construction,   etc.,   of   embankments 

may  be  ordered. 

92.  Enforcement  of  order. 

93.  Fences. 

94.  Cost  of  fencing,  how  recovered  from 

person  liable. 

Crossings. 

95.  Separation  of  grade  crossings  by  agree- 

ment. 

96.  Crossings  of  one  railroad  with  another, 

or  over  navigable  waters. 

97.  Railroad  crossing  a  highway  not  to  ob- 

stnict  the  same. 

98.  Space  under  bridge  regulated. 

99.  Agreements  with  cities  and  towns  as 

to  wearing  surfaces  of  bridges  and 
approaches. 


Sect 
100. 


101. 
102. 
103. 

104. 

105. 
106. 
107. 
108. 

109. 
110. 
111. 
112. 
113. 

114. 


Highway  may  be  raised  or  lowered 
under  direction  of  county  commis- 
sioners. 

Course  of  highway  may  be  altered. 

Crossing  public  way  at  a  level. 

Rails  to  be  protected  at  highway 
crossing. 

When  highway  may  be  laid  out  across 
a  railroad. 

Alterations  of  canals. 

Obstructions  and  repairs  at  crossings. 

Repairs  of  bridges,  etc. 

County  commissioners  to  have  juris- 
diction of  obstructions. 

Severance  of  private  land  by  crossing. 

Access  to  land  cut  off  by  railroad. 

Appeal  from  county  commissioners. 

Appeal  from  proceedings  thereon. 

Hearing  of  appeal;  powers  of  depart- 
ment. 

Right  of  crossing  not  acquired  by  pre- 
scription. 


BRANCHES  AND   EXTENSIONS. 

115.  Branches  and  ext«nsions. 

116.  Switch  connections. 

117.  Switch  connection,  control  by  depart- 

ment. 


OPENING    RAILROAD    FOR    USE. 

lis.  Road  not  to  be  opened  for  public  use 

until,  etc. 
119.  When  road  is  opened  for  public  use, 

map,  etc.,  to  be  filed. 


EQUIPMENT    AND    OPERATION. 

Drawbridges. 

120.  Draw  tender. 

121.  Drawbridges  to  be  kept  closed,  except. 

122.  Passage  of  vessels,  how  regulated. 

123.  Drawbridge  signals. 

124.  Drawbridge  gates. 

125.  Engineer    to    see    that    drawbridge    is 

closed. 

126.  Penalty     on     corporations,    etc.,     for 

neglect. 

127.  Penalty  for  obstructing  draw  tender, 

etc. 

Stations. 

128.  Abandonment    of    passenger    stations 

regulated. 

129.  Relocation    of    stations    and    freight 

depots. 

130.  Way  stations  to  be  indicated  by  signs. 

131.  Compensation  for  joint  occupation, 

Sivitches,  Bridge  Guards,  etc. 

132.  Safety  switches. 

133.  Blocked  switches. 

134.  Bridge  guards. 


Chap.  IGO. 


RAILROADS. 


1699 


Signals,  etc.,  at  Crossings. 

135.  Stopping  of  trains  at  grade  crossings. 

136.  Department  may  prescribe  rules  for 

crossings. 

137.  Interlocking  signals. 

138.  Bell  to  be  rung  or  whistle  sounded. 
1.39.  Sounding  of  whistles  regulated. 

140.  Signboards  at  crossings  of  ways. 

141.  Signboards   at   crossings   of   traveled 

places. 

142.  Warning  signs  to  be  erected  by  coun- 

ties, etc. 

143.  Warning  signs  furnished  by  railroads. 

144.  When  signs  impracticable. 

145.  Penalties. 

146.  Penalty  for  removing,  etc.,  sign. 

147.  Gates,  etc.,  at  crossings. 

148.  Penalty.       . 

149.  Signals  at  overhead  cros-sings. 

150.  Removal  of  standing  wood  at  cross- 

ings. 

151.  Pen.ilty  on  corporation  for  obstruct- 

ing highways,  etc. 

152.  Occupation  of  ways  by  cars  regulated. 

EQUIPMENT    OF    ENGINES    AND    CARS. 

153.  Electricity  a  motive  power. 

154.  Brakes  and  brakemen. 

155.  Safety  appliances  for  freight  trains. 

156.  Safety  couplers  on  freight  cars. 

157.  Automatic  couplers  for  freight  cars. 

158.  Grab  irons. 

159.  Standard    height    of    draw    bars    for 

freight  cars. 

160.  Penalty. 

161.  Limitation  of  preceding  sections. 

162.  Extension  of  time  for  equipment. 

163.  Tools  to  be  carried  with  trains. 

164.  Safeguards  against  fire. 

165.  Heating  of  cars  regulated. 

166.  Passenger  cars  not  to  be  lighted   by 

explosive  oils. 

167.  Platform  gates. 

168.  Testing  of  locomotive  boilers. 

169.  Mufflers  with  vacuum  brakes. 

170.  Mufflers  for  safety  valves. 

171.  Penalties. 

172.  Reasonable  accommodations. 

173.  Women,  etc.,  in  smoking  cars. 

174.  Drinking  water. 

175.  Penalty. 

176.  Further  appliances. 

EMPLOYEES. 

177.  Uniform    caps    and    badges    for    em- 

ployees. 

178.  Color  blindness,  examination  for. 

179.  Experience  required  of  locomotive  en- 

gineer. 
ISO.  Experience  required  of  conductor. 

181.  Promoting,  etc.,  violation  of  two  pre- 

ceding sections  forbidden. 

182.  Exceptions. 


Sect. 

183.  Penalty. 

184.  Rest   days   required    for   certain   em- 

ployees. 

185.  Department  to  regulate  train  crews. 

fares,  tolls,  charges,  etc. 

186.  Rates  of    fare,    how   established    and 

revised. 

TR.INSPORTATION  OF  PASSENGERS. 

187.  Conveyance  of  passengers  at  reduced 

rates. 

188.  Extra  fares  regulated. 

189.  Mileage    tickets,    coupons    to    be    de- 

tached. 

190.  Commutation  tickets  between  Boston 

and  stations  within  fifteen  miles. 

191.  Deposit  of  season  tickets. 

192.  Reimbursing  season  ticket  holder  for 

fare  paid. 

193.  Season  tickets  for  express  messengers. 

194.  Baggage  checks. 

195.  Storage  of  baggage   from   Friday   to 

Monday. 

196.  Bicycles  as  baggage. 

197.  Cheap  morning  and  evening  trains. 

198.  Workingmen's  trains. 

199.  Free  passes  to  state  officers  forbidden. 

200.  Passes  to  former  employees. 

TRANSPORT.ITION    OF    MAILS. 

201.  Mails  to  be  transported  on  request. 

202.  Compensation  for  carrying  mails. 

203.  Revision  of  rates. 

TRANSPORTATION    OF   MERCHANDISE. 

204.  Receipts  to  shippers  of  merchandise. 

205.  Equal  facilities  for  transportation. 

206.  Equal  facilities  to  local  expressmen. 

207.  Merchandise        to        be        forwarded 

promptly. 

208.  Charges  for  transportation  of  freight. 

209.  Penalties  on  corporations. 

210.  Freight  differential  against  Boston  for- 

bidden. 

211.  Discrimination    in    freight    rates    for- 

bidden. 

TRANSPORTATION    OF    MILK. 

212.  Transportation  of  milk. 

213.  Tariff  for  milk. 

214.  Penalties. 

CH.^NGE    OF    NAME. 

215.  Change  of  name. 

216.  Certificate  of  vote  to  l>e  filed  with  sec- 

retary. 

217.  Rights  and  liabilities  under  new  name. 

OFFENCES    AND    PENALTIES. 

218.  Walking  on  track. 

219.  Loitering  in  station. 

220.  Unlawful  riding  upon  locomotive. 


1700 


RAILEO.AJDS. 


[CiLiP.    160. 


Sect. 

221.  Fees  of  officers. 

222.  Riding  or  driving  beasts  on  railroad. 

223.  Negligence    in    permitting    beast    on 

railroad. 

224.  Neglect    to    close    gates    at    private 

crossing. 

225.  Malicious  injury  to  railroad,  etc. 

226.  Obstructing  engine  or  car,  etc. 

227.  Wilfully  stopping  train. 

228.  Tampering  with  tools. 

ACCIDENTS. 

229.  Liability  to  town  for  personal  injury. 

230.  Penalty  on  engineer,   etc.,   for  negli- 

gence. 

231.  Penalty  for  gross  negligence  in  man- 

agement of  trains. 

232.  Liability  for  damages  in  case  of  colli- 

sion at  grade  crossings,  etc. 

233.  Xon-liability  for  acts  of  e.\pressmen. 


234.  Loss  by  fire  caused  by  engine. 

235.  Spark  arresters. 

236.  Clearing  land  adjoining  track 

237.  Engineer,  etc.,  to  give  notice  of  fire. 


Sect. 

238.  Employees  to  extinguish  fires. 

239.  Employees  to  be  instructed  and  pro- 

vided with  means  to  fight  fires. 

240.  Railroad  not  to  enter  public  park. 

241.  Liability  to  city  or  town  for  fire. 

BOOKS    AND    EETORNS. 

242.  Books,  accounts  and  annual  returns. 

243.  Quarterly  returns. 

244.  Lessee  of  road  to  make   returns  re- 

quired of  lessor. 

RAILROADS    FOR    PRIVATE    USE. 

245.  Railroads  for  private  use. 

246.  Regulation  of  crossings. 

CORPORATIONS     TO     CONSTRUCT     RAILROADS 
IN    FOREIGN    CODi}tRIES. 

247.  Corporations  to  construct  railroads  in 

foreign  countries. 

248.  Agreement  of  association. 

249.  Certificate  of  compliance  with  require- 

ments. 

250.  Increase  or  reduction  of  capital  stock. 

251.  Statutes  governing  such  corporation. 

252.  Enforcement. 


Definitions. 
1874,  372,  §  2. 
P.  S.  112.  §  1. 
1892, 110. 
1898,  578,  §  1. 
1901,  503. 
R.  L.  Ill,  §  1. 
1906,  463,  II, 
§U,258. 
1913,  784,  §  1. 
1919,  350, 
§117. 

190  Mass.  123. 
196  Mass.  329. 
200  Mass.  551. 


Section  1.     The  following  words  as  used  in  this  chapter,  unless  the  1 

context  otherwise  requires,  shall  have  the  following  meanings:  2 

"Board  of  aldermen"  or  "selectmen"  includes  the  board  or  other  3 

authority  exercising  the  powers  of  a  board  of  aldermen  or  of  selectmen ;  4 

but  nothing  herein  shall  be  construed  as  affecting  the  veto  power  of  a  5 

mayor  of  any  city.  6 

"Department",  the  department  of  public  utilities.  7 

"Public  way",  any  way  laid  out  by  public  authority.  8 

"Railroad",  a  railroad  or  railway  of  the  class  usually  operated  by  9 

steam  power.  10 

"Railroad  corporation",  the  corporation  which  lays  out,  constructs,  11 

maintains  or  operates  a  railroad  of  the  class  usually  operated  by  steam  12 

power.  13 

"Railroads  and  railways",  all  railroads  and  railways  except  tramways  14 

in  mines  and  marine  railways.  15 


Application  to 
certain  matters 
arising  in 
Boston. 
1874,  372,  §  5. 
1881,91,  §  1. 
P.  S.  112,  §  2. 
1885,  194,  §  2. 
R.  L.  Ill,  §  2. 
1906,  463, 
II,  §§2.258. 
1909,  4S6,  J  1. 


Section  2.  The  duties  impo.sed  by  this  chapter  upon  county  com- 
missioners as  a  tribunal  of  original  jurisdiction  relative  to  the  fixing  of 
routes  or  to  the  location,  construction,  maintenance  and  operation  of 
railroads  shall,  in  Boston,  unless  it  is  otherwise  expressly  provided,  de- 
volve upon  the  city  council  of  said  city.  The  duties  imposed  upon  the 
county  commissioners  by  reference  or  appeal  from  the  board  of  aldermen 
shall,  in  cases  arising  in  Boston,  devolve  upon  the  department. 


Corporations 

subject  to  this 

chapter. 

R.  S.  39,  5  45. 

G.  S.  63,  I  1. 

1874,  372,  §  4. 

P.  S.  112,  §  3. 


CORPORATIONS  SUBJECT  TO  THE  PROVISIONS  OF  THIS  CH-IPTER, 

Section  3.  Railroad  corporations  established  in  the  commonwealth 
shall  be  subject  to  this  chapter  and  chapter  one  hundred  and  iifty-nine 
which,  so  far  as  inconsistent  with  charters  granted  since  March  eleventh, 
eighteen  hundred  and  thirty-one,  shall  be  an  alteration  and  amendment 


Chap.  160.]  railro.^ds.  1701 

5  thereof;    but  this  section  shall  not  impair  the  validity  of  any  special  ftige  les'^^' 

6  power  heretofore  conferred  by  charter  or  other  special  act  upon  a  particu-  'J.,^).^'  ^^™ 

7  lar  railroad  corporation  which  had  exercised  such  power  before  February 

8  first,  eighteen  hundred  and  seventy-five,  or  prevent  the  continued  exer- 

9  cise  thereof  conformably,  so  far  as  may  be,  to  this  chapter  and  chapter 
10  one  hundred  and  fifty-nine. 

1  Section  4.     A  railroad  corporation  chartered  by  the  concurrent  legis-  Corporation 

2  lation  of  this  and  other  states  shall,  as  regards  any  portion  of  its  rail-  conclfrr^t'* 

3  road  lying  within  this  commonwealth,  be  entitled  to  all  the  benefits  'i^|74.^372°' 

4  and  be  subject  to  all  the  liabilities  of  the  railroad  corporations  of  this  |.^|'iio  ^4 

5  commonwealth.  r.  l.  111,  §4.  1900, 463, 11,  §§  4, 258. 

1  Section  5.     If  a  railroad  which  has  been  laid  out  and  constructed  Corporation  or 

2  by  one  corporation  is  lawfully  maintained  and  operated  by  another  cor-  atmg  railroads 

3  poration,  the  latter  corporation  shall  be  subject  to  the  provisions  of  this  Nation"  ''°^°' 

4  chapter  and  chapter  one  hundred  and  fifty-nine  respecting  or  arising  ks'uI.'I^ 

5  from  the  maintenance  and  operation  of  such  railroad,  as  if  such  railroad  fgosjes;  ^  ^' 

6  had  been  laid  out  and  constructed  by  it.    If  a  railroad  is  lawfully  main-  U'.^i*'  ^?,-n 

,,,,.,.  *^.  1/4  Mass.  .5  J  9. 

7  tamed  and  operated  by  trustees,  they  shall  in  like  manner  be  subject 

8  to  the  provisions  of  law  respecting  or  arising  from  the  maintenance  and 

9  operation  of  such  railroad  which  apply  to  the  corporation  for  whose 
10  stockholders  or  creditors  they  are  trustees. 

EIGHTS  RESERVED  BY  THE  COMMONWEALTH. 

1  Section  6.     This  chapter  and  chapter  one  hundred  and  fiftv-nine  shall  Rights  reserved 

-.  ..,.,  rt,  ,1  ,^  ,.by  common- 

2  not  impair  the  rights  or  the  commonwealth  as  asserted  or  reserved  in  wealth. 

3  previous  statutes,  and  the  commonwealth  may,  at  any  time  during  the  g:  si  ea,  §  iss. 

4  continuance  of  the  charter  of  a  railroad  corporation  after  the  expiration  JstI,'  372,^  ^*' 

5  of  twenty  years  from  the  opening  of  its  railroad  for  use,  purchase  of  the  p^i'iilf"' 

6  corporation  its  railroad  and  all  its  franchise,  property,  rights  and  priv-  |j5  ^  ^j. 

7  ileges  by  paying  therefor  such  amount  as  will  reimburse  to  it  the  amount  }?°|i*g4 

8  of  capital  paid  in,  with  a  net  profit  thereon  of  ten  per  cent  a  year  from 

9  the  time  of  the  payment  thereof  by  the  stockholders  to  the  time  of  the 
10  purchase. 

1  Section  7.     The  commonwealth  may,  at  any  time  after  one  year's  common- 

2  written  notice  to  a  railroad  corporation,  take  its  railroad,  franchise  and  ta1fe'rai"oad. 

3  other  property  by  eminent  domain  under  chapter  seventy-nine.  ^*'^°'  ^^^-  ^  ^• 

1874,  372,  §  181.  R.  L.  ill,  5  7. 

P.  S.  112,  I  8.  1906,  463,  II,  §§  7,  258. 

SPECIAL  charters. 

1  Section  8.    A  petition  to  the  general  court  for  a  charter  for  a  railroad  ^ha^t'e"r°ti°be 

2  corporation  shall  not  be  acted  upon,  unless  accompanied  by  such  a  map  accompanied 

3  of  the  route  aiirl  by  such  a  report  of  a  competent  engineer,  as  is  specified  engineer,  map, 

4  in  section  eighteen.  is33,  i76.  r.  s.  39,  §46. 

1848,327,5  1.  G.  S.  63.  §13.  R.  L.  111.  §  30. 

1849,  131,  §  2.  P.  S.  112.  5  29.  1906,  463,  II,  §§  8,  258. 


R.  L.  Ill,  §  6. 
"'  1, 

258. 


Section  9.     Plans  and  profiles  presented  to  a  committee  of  the  general  tl^J'' osfted" 


1 

2  court  in  the  hearing  of  a  petition  for  such  a  charter  shall  be  deposited  by  ilfH^o*'^'"^' 

3  it  in  the  state  library.  g.  s.  63,  §  i4. 

p.  S.  112,  §30.  R.  L.  Ill,  §  31.  1906,  463,  II,  §§  9,  258. 


1702 


EAILROADS. 


[Chap.  160. 


Petition  not 
to  be  acted 
upon  until 
notice,  etc. 
1S33,  176. 
R.  S.  39,  §  47. 
G.  S.  63.  §  15. 
P.  S.  112,  §31. 
R.  L.  Ill,  §32. 


Section  10.  Such  petition  shall  not  be  acted  upon,  until  notice 
thereof  has  been  published  according  to  law,  designating  the  route  with 
such  certainty  as  to  give  reasonable  notice  to  all  persons  interested  therein 
that  their  rights  may  be  affected  by  the  granting  of  the  petition,  and 
that  they  may  have  an  opportunity  to  appear  and  object  thereto. 

1906,463,11,  §§  10,  258. 


Railroad  to  be 
within  limits 
specified. 
R.  S.  39,  §  48. 
G.  S.  63,  §  IB. 
P.  S.  112,  §  32. 
R.  L.  Ill,  §  33. 
1906,  463,  II, 
§§11,258. 


Section  11.     Every   charter  shall   confine   the   railroad  within   the  1 

limits  indicated  by  the  notice  required  in  the  preceding  section,  shall  2 

specify  the  several  cities  and  towns  through  which  the  railroad  may  3 

pass,  and  shall  otherwise  designate  the  route  thereof  with  as  much  cer-  4 

tainty  as  the  nature  of  the  case  will  admit.  5 


Chartered 
railroads  to  be 
located,  etc., 
under  this 
chapter. 
1874,  372,  §  33. 
P.  S.  112.  §  33. 
1882,  265,  §  3. 
R.  L.  Ill,  §34. 
1906,  463.  II, 
§§12,  2S8. 


Section  12.     The  route  of  the  railroad  of  a  corporation  established  1 

by  special  charter,  and  of  its  branches  and  extensions,  shall  be  fixed  ac-  2 

cording  to  sections  twenty  and  twenty-one  except  so  far  as  they  may  3 

have  been  fixed  by  special  statute;    and  such  railroad,  branches  and  ex-  4 

tensions  shall  be  located  and  constructed  according  to  the  provisions  of  5 

tliis  chapter  regulating  the  location  and  construction  of  railroads  by  cor-  G 

porations  incorporated  under  general  laws,  except  that  section  seventeen  7 

shall  not  apply,  if  authority  so  to  locate  and  construct  has  been  granted  8 

by  special  act  of  the  general  court.  9 


Incorporation 
of  railroad 
corporations. 
1872,  53,  §  1. 
1874,  372,  §  19. 
P.  S.  112,  §  34. 


INCORPORATION  TNDER  GENERAL  LAWS. 

Section  13.     Fifteen  or  more  persons  may  associate  themselves  by  a  1 

written  agreement  of  association  with  the  intention  of  forming  a  railroad  2 

corporation.  R.  l.  in,  §35.  1906, 463,  ii,  §§  13,258.  3 


Agreement  of 
association, 
corporate 
name,  etc. 
1872,  53, 
§§2-4. 
1874,  298; 
372,  §§20,21. 
1878,2.36,  §  1. 
P.  S.  112, 
§§  35,  36. 
1891,  257,  §  1. 
R.  L.  109,  §  8; 
111,  §§36,37. 
1906,463.  II, 
§§  14,  258. 


Section  14.     The  agreement  of  association  shall  state:  1 

(a)  That  the  subscribers  thereto  associate  themselves  with  the  inten-  2 
tion  of  forming  a  railroad  corporation.  3 

(b)  The  corporate  name  assumed,  which  shall  be  one  not  in  use  by  any  4 
other  railroad  corporation  in  the  commonwealth,  or,  in  the  judgment  of  5 
the  department,  so  similar  thereto  as  to  be  likely  to  be  mistaken  for  it,  6 
and  which  shall  contain  the  words,  "railroad  corporation",  at  the  end  7 
thereof.  8 

(c)  The  termini  of  the  railroad.  9 

(d)  The  length  of  the  railroad,  as  nearly  as  may  be.  10 

(e)  The  name  of  each  county,  city  and  town  where  the  railroad  is  to  be  11 
located.  12 

(/)  The  gauge  of  the  railroad,  which  shall  be  either  four  feet  eight  and  13 
one  half  inches,  or  three  feet.  14 

{g)  The  total  amount  of  the  capital  stock  of  the  corporation,  which  15 
shall  be  not  less  than  ten  thousand  dollars  for  each  mile,  if  the  gauge  is  16 
four  feet  eight  and  one  half  inches,  and  not  less  than  five  thousand  dollars  17 
for  each  mile,  if  the  gauge  is  tlu-ee  feet.  18 

(/()  The  par  value  of  the  shares,  which  shall  be  one  hundred  dollars.      19 

(i)  The  names  and  residences  of  at  least  five  persons,  who  shall  be  sub-  20 
scribers  to  the  agreement  of  association,  to  act  as  directors  until  others  21 
are  chosen  and  qualified  in  their  stead.  22 

Each  associate  shall  subscribe  to  the  agreement  of  association  his  name,  23 
residence,  post  office  address,  and  the  number  of  shares  of  stock  which  24 


Chap.  160.]  e.\ilroads.  1703 

25  he  agrees  to  take;  but  no  subscriber  shall  be  bound  to  pay  more  than 

26  ten  per  cent  of  the  amount  of  his  subscription  unless  a  corporation  is 

27  incorporated. 

1  Section  15.     The  associates  may  from  time  to  time,  at  a  meeting  called  ^^^^°^'^1*«,^' 

2  therefor,  reduce  the  amount  of  the  capital  stock,  but  not  below  the  limit  i|72,  m  §  4. 

3  prescribed  in  the  preceding  section;  and  they  may,  in  like  manner,  change  §2i.' 

4  the  gauge  of  their  railroad  to  the  other  gauge  allowed  by  said  section,  r.  l.  iii,§37. 

5  The  directors  shall  appoint  a  clerk  and  a  treasiu-er,  who  shall  hold  their  §§"15*258."' 

6  respective  offices  until  a  clerk  and  a  treasurer  of  the  corporation  are  chosen 

7  and  qualified  in  their  stead.     The  directors  shall  fill  any  vacancy  in  their 

8  board,  or  in  the  office  of  clerk  or  treasurer,  before  the  organization  of  the 

9  corporation. 

1  Section  16.     The  directors,  before  fixing  the  route  of  the  railroad  as  Publication  of 

2  hereinafter  provided,  shall  publish  a  copy  of  the  agreement  of  association  tfJocSTion" 

3  in  a  newspaper,  if  any,  published  in  each  of  the  cities  and  towns  where  iItI]  372,^^22. 

4  the  railroad  is  to  be  located,  and  if,  in  any  county,  a  newspaper  is  pub-  ^-  ^  \n'  \% 

5  lished  in  none  of  said  cities  and  towns  therein,  in  such  newspaper  pub-  ll^^oJi'^' 

6  lished  in  said  county  as  shall  be  designated  by  the  department,  at  least 

7  once  in  each  of  three  successive  weeks;   and,  three  weeks  before  fixing 

8  said  route,  shall  also  post  a  copy  of  said  agreement  in  two  or  more  public 

9  places  in  each  of  said  cities  and  towns  where  said  railroad  is  to  be  located; 

10  and  the  sworn  certificate  of  the  clerk  shall  be  conclusive  evidence  of  such 

11  publication  and  posting. 

1  Section  17.     After  compliance  with  the  provisions  of  sections  thir- Certificate  of 

2  teen  to  sixteen,  inclusive,  and  within  thirty  days  after  the  first  publica-  ?emence  and 

3  tion  of  notice  of  the  agreement  of  association  therein  required,  the  ?88f^205,  §  1. 

4  directors  therein  named  shall  apply  to  the  department  for  a  certificate  fgoo;  40.3,  iit° 

5  that  public  convenience  and  necessity  require  the  construction  of  a  5§  is.  253. 

6  railroad  as  proposed  in  such  agreement.     If  the  department  refuses  to 

7  issue  such  certificate,  no  further  proceedings  shall  be  had,  but  the  appli- 

8  cation  may  be  renewed  after  one  year  from  the  date  of  such  refusal. 

1  Section  18.     The  directors  shall  prepare  a  map  of  the  route  on  an  Map  of  route, 

2  appropriate  scale,  with  a  profile  thereof  on  a  vertical  scale  of  ten  to  one  gmeer  and" 

3  as  compared  with  the  horizontal  scale,  and  shall  procure  the  report  of  is72','53f§  6; 

4  a  competent  engineer,  based  on  actual  examination  and  siu-vey,  showing  IsvifsT^,  §23. 

5  the  kind  and  amount  of  excavation,  fiUing,  bridging  and  masonry  re-  RLVnUg- 

6  quired,  the  grades,  the  number  of  public  ways  and  of  other  railroads,  ll^JVIfc"' 

7  and  of  navigable  streams  and  tide  waters,  to  be  crossed,  and  the  man- 

8  ner  of  crossing  the  same,  the  general  profile  of  the  surface  of  the  country 

9  through  which  the  railroad  is  to  pass,  the  feasibility  of  the  route,  the 

10  manner  of  constructing  the  railroad,  and  a  detailed  estimate  of  the  cost 

11  of  construction. 

1  Section  19.     The  directors  shall  submit  said  map  and  report  to  the  Submission  of 

2  board  of  aldermen  of  every  city  and  to  the  selectmen  of  every  town  boar(i*^of ' 

3  named  in  the  agreement  of  association,  who  shall  thereupon  appoint  a  i873™2i',  I'a'. 

4  time  and  place  for  a  hearing,  of  which  notice  shall  be  given  by  publica-  r  a'ul.'lla.' 

5  tion  in  a  newspaper  published  in  said  city  or  town,  or  if  none  is  pub-  fgoe'lwi'i/'' 

6  Ushed  therein,  in  such  newspaper  published  in  the  county  where  said  5§  i^'  ^ss. 


1704 


RAILEO.U)S. 


[ClL\P.    160. 


city  or  town  is  situated  as  shall  be  designated  by  the  department,  at  7 

least  once  in  each  of  two  successive  weeks,  the  last  publication  to  be  at  8 

least  two  days  before  the  hearing;  and  by  posting  copies  of  said  notice  9 

in  two  or  more  public  places  in  said  city  or  toi^-n  at  least  two  weeks  10 

before  such  hearing.  11 


Route  may  be 
agreed  upon. 
1872,  53,  §  7; 
180,  §  3. 
1874,  372,  §  25. 
P.  S.  112,  §40. 
R.  L.  111,5  42. 
190fi.  463,  II, 
§§  20,  258. 


Section  20.     If  the  board  of  aldermen  of  a  city  or  the  selectmen  of  a  1 

town  named  in  the  agreement  of  association,  after  such  notice,  exhibition  2 

of  the  map  and  the  hearing,  agree  with  the  directors  a?  to  the  said  route  3 

or  as  to  any  route  of  the  railroad  in  said  city  or  town,  they  shall  in  such  4 

agreement  fix  the  route,  and  sign  and  give  to  the  directors  a  certificate  5 

setting  it  forth.  6 


Proceedings  on 
failure  to 
agree. 

1872,  53,  §  S; 
180,  §  3. 
1874,  372,  §  2B. 
P.  S.  112,  §  41. 
R.  L.  Ill,  §  43, 
1906.  463,  II, 
§§  21,  258. 


Section  21.     If  they  fail  so  to  agree,  the  directors  may  petition  the  1 

department  to  fi.x  the  route  in  said  city  or  town;   and  the  department,  2 

after  notice  to  said  board  of  aldermen  or  selectmen,  shall  hear  the  3 

parties,  and  fix  the  route  in  such  city  or  town,  and  make  a  certificate  4 

setting  forth  the  route  as  fixed  by  it,  which  shall  be  certified  by  its  5 

clerk  to  the  directors.    The  costs  of  the  petition  shall  be  paid  by  the  6 

directors.     All  variations  from  the  route  first  proposed  shall  be  made  7 

upon  the  map.  8 


Spurs  and 
branches. 

1873,  121,  §  3. 

1874,  372,  §  27. 
P.  S.  112,  §42. 
R.  L.  Ill,  §44. 
1906,  463,  II, 
§§  22,  258. 


Section  22.  The  route  fixed  under  the  two  preceding  sections  may  1 
include  such  spurs,  branches  and  connecting  and  terminal  tracks  in  any  2 
city  or  town  as  may  be  necessary  to  enable  the  corporation  conveniently  3 
to  collect  and  deliver  passengers  and  freight  therein;  but  no  such  4 
branches,  spurs  or  connecting  or  terminal  tracks  shall  be  laid  longi-  5 
tudinally  within  the  limits  of  a  public  way  without  the  consent  of  the  6 
board  of  aldermen  or  the  selectmen,  who,  in  gi^'ing  such  consent,  may  7 
impose  such  conditions  as  to  the  location,  construction  and  use  thereof  8 
as  may  be  agreed  upon  between  themselves  and  the  directors.  A  cor-  9 
poration  which  owns  or  operates  any  such  tracks  so  laid  longitudinally  in  10 
a  public  way  shall,  in  respect  to  the  same,  be  liable  to  the  city  or  town  11 
for  all  loss  or  damage  caused  to  it  by  the  construction  and  use  of  such  12 
tracks  and  by  the  negligence  or  default  of  the  agents  or  workmen  of  13 
such  corporation  on  such  way.  14 


Certificate, 
map  and  re- 
port to  be 
deposited  with 
department. 
1872,  S3,  §  9. 
1874,  372,  §  2S. 
P.  S.  112,  §43. 
R.  L.  Ill,  §45. 
1906,  403,  II, 
§§  23,  258. 


Section  23.  When  the  amount  of  capital  stock  named  in  the  agree-  1 
ment  of  association  has  been  subscribed  in  good  faith  by  responsible  2 
persons,  and  ten  per  cent  of  the  par  value  of  each  share  has  been  actu-  3 
ally  paid  in  cash  to  the  treasurer,  tlie  directors,  clerk  and  treasurer  shall  4 
annex  to  the  agreement  of  association  their  certificate  setting  forth  these  5 
facts,  and  that  it  is  intended  in  good  faith  to  locate,  construct,  maintain  6 
and  operate  the  railroad  upon  the  route  fixed,  shall  also  annex  to  said  7 
agreement  the  certificate  of  publication  specified  in  section  sixteen,  and  8 
the  several  certificates  fixing  the  route,  shall  present  the  same  for  inspec-  9 
tion  to  the  department,  and  shall  at  the  same  time  deposit  in  the  office  10 
of  the  department  the  report  of  the  engineer  and  the  map.  11 


Certificate  of 
compliance. 
Filing. 

Certificate  of 
incorporation. 


Section  24.  WTien  it  is  shown  to  the  satisfaction  of  the  department  1 
that  the  requirements  of  this  chapter  preliminary  to  the  incorporation  2 
of  a  railroad  corporation  have  been  complied  with,  the  clerk  of  the  de-    3 


Chap.  160.]  railroads.  1705 

4  partment,  upon  its  order,  shall  annex  to  the  agreement  of  association  a  is72, 53,  §  10. 

5  certificate  stating  that  such  requirements  have  been  complied  with,  issi!  lei! 

6  The  directors  shall  thereupon  file  the  agreement  of  association,  with  all  r.  i;.Vn.V4i3. 

7  the  certificates  annexed  thereto,  in  the  office  of  the  state  secretary,  who,  n°§§'24^'25s. 

8  upon  the  paj-ment  to  him  of  a  fee  of  fifty  dollars,  shall  receive  and  pre-  ^^  ^'''*''-  ■^^°- 

9  ser\e  the  same  in  form  convenient  for  reference  and  open  to  public  in- 

10  spection,  and  shall  thereupon  issue  a  certificate  of  incorporation  sub- 

1 1  stantially  in  the  following  form : 

COMMONTVEALTH    OF    MASSACHUSETTS. 

Be  it  known  that  whereas  (names  of  the  subscribers  to  the  agreement  of  Form  of 
association)  have  associated  themselves  with  the  intention  of  forming  a  corpo- 
ration under  the  name  of  the  (name  of  the  corporation),  for  the  purpose  of 
locating,  constructing,  maintaining  and  operating  a  railroad  (description  of  the 
railroad  as  in  tlie  agreement  of  association),  and  have  complied  with  the 
statutes  of  this  commonwealth  in  such  cases  made  and  provided:  Now,  there- 
fore, I,  ,  secretary  of  the  commonwealth  of  Massachusetts,  do 
hereby  certify  that  the  persons  aforesaid,  their  associates  and  successors,  are 
legally  established  as  a  corporation  under  the  name  of  the  (name  of  the  cor- 
poration), with  all  the  powers  and  privileges,  and  subject  to  all  the  duties,  lia- 
bilities and  restrictions,  set  forth  in  all  general  laws  which  now  are  or  hereafter 
may  be  in  force  relating  to  railroad  corporations. 

In  witness  whereof,  I  have  hereunto  subscribed  my  official  signature,  and 
affixed  the  great  seal  of  said  commonwealth,  this  day  of  , 

in  the  year 

12  The  state  secretary  shall  sign  the  certificate  of  incorporation,  and  blKcorded" 

13  cause  the  great  seal   of   the   commonwealth  to  be  thereto  affixed,  and 

14  such  certificate  shall  ha\'e  the  force  and  effect  of  a  special  charter.    The 

15  state  secretary  shall  also  cause  a  record  of  the  certificate  of  incorpora- 

16  tion  to  be  made,  and  such  certificate,  or  such  record,  or  a  certified  copy 

17  thereof,  shall  be  conclusive  evidence  of  the  existence  of  such  corporation. 

1  Section  25.     If  the  capital  stock  fixed  in  the  agreement  of  associa-  increase  and 

2  tion  is  found  to  be  insufficient  for  the  construction  and  equipment  of  capit'ai°s'to°k. 

3  the  railroad,  the  corporation  at  a  meeting  called  therefor  may,  subject  of  gaSge 

4  to  section  forty-seven,  increase  the  same,  from  time  to  time,  to  the  5s72',''53f  §  1.5. 

5  amount  necessary  for  those  purposes.     It  may,  at  a  meeting  called  J|^i|'  JS.V  |  ^^ 

6  therefor,  reduce  the  amount  of  the  capital  stock,  but  not  below  the  limit  p*q''Ao''s ^r 

7  prescribed  in  section  fourteen.     It  may,  also,  in  like  manner,  change  the  R.  l.  111',  §48. 

8  gauge  to  the  other  authorized  gauge;    but  a  corporation  organized  to  11,  §'§20,' 258. 

9  construct  its  railroad  on  a  gauge  of  three  feet  shall  not  change  such 

10  gauge  to  four  feet  eight  and  one  half  inches  without  complying  with  all 

11  provisions  of  law  relative  to  the  capital  stock  of  railroads  of  the  broad 

12  gauge;  and  the  fact  that  such  provisions  have  been  complied  with  shall 

13  be  shown  to  the  satisfaction  of  the  department,  and  endorsed  by  its 

14  clerk  upon  the  certificate  of  such  change  of  gauge  before  it  is  filed  in  the 

15  office  of  the  state  secretary.     A  certificate  of  the  increase  or  reduction 

16  of  capital  or  change  of  gauge  shall,  within  thirty  days  thereafter,  be 

17  filed  in  the  office  of  the  state  secretary. 

1  Section  26.     The  agreement  of  association,  and  all  proceedings  there-  Proceedings 

2  imder,  including  the  fixing  of  the  route,  shall  be  \oid,  unless  the  certifi-  \si>, 205, § 2. 

3  cate  of  incorporation  is  issued  within  one  year  after  the  time  the  route  Hio';!463;^ ''' 

4  is  fixed  as  provided  in  section  twenty  or  twenty-one.  ^^'  ^^  ^^'  ^^*- 


1706 


RAILROADS. 


ICh.\p.  160. 


forcon'stru"tLn  SECTION  27.  If  a  Corporation  does  not  begin  the  construction  of  its 
°sy2%Ti'i6  railroad  and  expend  thereon  at  least  ten  per  cent  of  the  amount  of  its 
1874;  372  §  30.  Original  capital  stock  within  two  years  after  the  date  of  its  certificate  of 
r'.  l.  111'.  §4s.  incorporation,  and  does  not  complete  and  open  its  railroad  for  use  within 
li,  |'§27,'25S.    four  years  after  said  date,  its  corporate  powers  and  existence  shall  cease. 


of^nlrrowgauge      SECTION  28.     A  Corporation  which  has  a  railroad  bf  the  gauge  of     1 
railroads.  three  fcct  shall  not  begin  running  its  trains,  until  its  paid-up  capital  stock     2 


1874, 
§30. 


298;  372, 


is  equal  to  one  half  of  its  cost,  including  equipment. 

p.  S.  112,  §45.  R.  L.  Ill,  §48.  1906,463,11,1 


t  28,  238. 


First  meeting 
of  incorpo- 
rators. 

1872,53.  §  II. 
1874,372,  §.30. 
P.  S.  112,  §4.5. 
R.  L.  Ill,  §48. 
1906.  463, 
II,  §§  29,  258. 


ORGANIZATION. 

Section  29.  Upon  the  issue  of  such  certificate  of  incorporation,  the  1 
first  meeting  of  the  incorporators  shall  be  called  by  a  notice  signed  by  a  2 
majority  of  the  directors;  and  such  notice  shall  state  the  time,  place  3 
and  purposes  of  the  meeting.  A  copy  of  such  notice  shall,  seven  days  at  4 
least  before  the  day  appointed  for  the  meeting,  be  given  to  each  incor-  5 
porator  or  left  at  his  residence  or  usual  place  of  business,  or  deposited  in  6 
the  post  office,  postage  prepaid,  and  addressed  to  him  at  his  residence  or  7 
usual  place  of  business,  and  another  copy  thereof,  and  an  affida^•it  of  the  8 
clerk  that  the  notice  has  been  duly  se^^'ed,  shall  be  recorded  with  the  9 
records  of  the  corporation.  If  all  of  the  incorporators  shall  in  writing  10 
waive  such  notice,  and  fix  the  time  and  place  of  the  meeting,  no  notice  11 
shall  be  required.  12 


Orffanization. 
1851,  133, 
§§4,5. 
G.  S.  61.  §  5. 
1870,  224,  §  10. 
P.  S.  106,  §  20. 
R.  L.  110,  §  19. 
1908,  463,  II, 
§§  30,  25S. 


Section  30.  At  such  first  meeting,  or  at  any  adjournment  thereof, 
the  incorporators  shall  organize  by  the  adoption  of  by-laws,  and  by  the 
election,  by  ballot,  of  not  less  than  five  directors.  The  clerk  appointed  by 
the  directors  under  section  fifteen  shall  make  and  attest  a  record  of  the 
proceedings  until  the  clerk  has  been  chosen  and  sworn,  including  a  record 
of  such  choice  and  qualification. 


Officers. 

1831, 

73. 

R.S. 

39,  §  49. 

G.S. 

63,  §  2. 

1869, 

50. 

1874,  372,  §  43. 

P.  S. 

112,  §  5,5. 

Election  of 

officers. 

1831, 

72. 

R.S. 

39,  §  49. 

G.S. 

63,  §  2. 

1869, 

50 

1873, 

220. 

§§  1-3. 

1874. 

372,  §  43. 

P.  S. 

112, 

5§27 

■,  28,  55. 

R.L. 

Ill, 

§§  28,  29,  58. 

1906, 

463, 

II,  §1  32,  258. 

1918, 

257, 

§365 

1919, 

'5. 

1920, 

2. 

OFFICERS. 

Section  31.  The  business  of  every  corporation  shall  be  managed 
and  conducted  by  a  president,  a  board  of  not  less  than  fi^'e  directors,  a 
clerk,  a  treasurer  and  such  other  officers  and  such  agents  as  the  corpora- 
tion'by  its  by-laws  shall  authorize.  R.  L-  m,  §  ss. 

1906,  463,  II,  §§  31,  238.  16  Gr.iy.  407.  117  Mass.  226. 


1 


Section  32.  The  directors  shall  be  elected  annually  by  the  stock- 
holders by  ballot,  and  the  president  shall  be  elected  annually  by  and  2 
from  the  board  of  directors,  and  the  treasurer  and  the  clerk  annually  3 
by  said  board.  Every  director,  unless  the  by-laws  otherwise  provide,  4 
shall  be  a  stockholder.  The  treasurer  may  be  required  to  give  a  bond  5 
for  the  faithful  performance  of  his  duty  in  such  sum  and  with  such  sureties  6 
as  the  by-laws  may  prescribe.  The  clerk,  who  shall  be  a  resident  of  the  7 
commonwealth,  shall  be  sworn,  and  shall  record  all  votes  of  the  corpora-  8 
tion  in  a  book  to  be  kept  for  that  purpose.  The  officers  of  a  corporation  9 
shall  hold  oflSce  for  one  year  and  until  their  successors  are  qualified.  All  10 
other  agents  and  officers  shall  be  chosen  or  appointed,  and  all  vacancies  11 
filled,  in  the  manner  prescribed  by  the  by-laws,  or,  in  default  of  such  12 
by-law,  by  the  board  of  directors.  13 


Chap.  160.]  railroads.  1707 


MEETINGS. 

1  Section  3.3.     There  sliall  be  an  annual  meeting  of  the  stockholders,  Meetings  of 

2  and  the  time  and  place  of  holding  it,  and  the  manner  of  conducting  it,  noUce.quorum. 

3  shall  be  fixed  by  the  by-laws.    All  meetings  of  stockliolders  shall,  unless  ff'^g  39  ^  5; 

4  the  by-laws  otherwise  provide,  be  held  in  the  commonwealth;  and  shall  fsel'g'i'J^ 
.5  be  called,  and  notice  thereof  given,  in  the  manner  provided  in  the  by-laws  ises!  loe. 

.  .  1874  323'  372 

6  of  the  corporation;   or,  if  the  by-laws  make  no  provision  therefor,  shall  §40.' 

7  be  called  by  the  president,  and  a  written  notice,  stating  the  place,  day  r.l.  in.Vss. 

8  and  hour  thereof,  given  by  the  clerk,  at  least  seven  days  before  such  ii,*'§j'33%5s. 

9  meeting,  to  each  stockholder  by  leaving  such  notice  with  him  or  at  his  ^^°^-  ^^*'  ^  '• 

10  residence  or  usual  place  of  business,  or  by  mailing  it,  postage  prepaid,  and 

1 1  addressed  to  each  stockholder  at  his  address  as  it  appears  upon  the  books 

12  of  the  corporation.    Unless  the  by-laws  otherwise  provide,  a  majority  in 

13  interest  of  all  stock  issued  and  outstanding  and  entitled  to  vote  shall 

14  constitute  a  quorum,  but  if  at  any  annual  meeting  or  at  any  other  meet- 

15  ing  held  for  the  purpose  of  electing  officers  less  than  a  majority  of  the 

16  stock  ils  represented,  no  election  of  officers  shall  take  place. 

17  Notices  of  all  meetings  of  stockholders  shall  state  the  purposes  for 

18  which  the  meetings  are  called.    No  notice  of  the  time,  place  or  purpose 

19  of  any  regular  or  special  meeting  of  the  stockholders  shall  be  required,  if 

20  every  stockliolder,  or  his  attorney  thereunto  authorized,  by  a  writing 

21  filed  with  the  records  of  the  meeting,  waives  such  notice. 

1  Section  34.     A  special  meeting  of  the  stockholders  shall  be  called,  ^Pf/^^^gg 

2  and  a  written  notice  thereof,  stating  the  time,  place  and  purpose  of  the  j?^|'fr''5  5'> 

3  meeting,  given  by  the  clerk,  upon  written  application  of  three  or  more  r.l.  111, §56. 

4  stockholders  entitled  to  vote,  and  holding  at  least  one  tenth  of  the  capital  li,  §'§  35,' 258. 

5  stock. 

1  Section  35.     A  railroad  corporation  shall  not,  directly  or  indirectlv.  Voting  rights 

.T  ,  I  r   'j  J.       1  "       oi  corporation 

2  vote  upon  any  share  ot  its  own  stock.  upon  its  own 

1843,68,5  2.  1874.  372,  §41.  R.  L.  Ill,  §  57.  ^^°''^' 

G.S.  63,  §5,  P.  S.  112,  §53.  1906,  463,  II,  §§  36,  258. 

1  Section  36.     Stockliolders  entitled  to  vote  shall  have  one  vote  for  voting  rights  of 

2  each  share  of  stock  owned  by  them.    Stockliolders  may  vote  either  in  R°a  sg."^!  so. 

3  person  or  by  proxy.    No  proxy  dated  more  than  six  months  before  the  list;  yf:  ^ '" 

4  meeting  named  therein  shall  be  accepted,  and  no  such  proxy  shall  be  §§5' 6^' 

5  valid  after  the  final  adjournment  of  such  meeting.         1874, 372,  §§  41,42. 

p.  S.  112,  §§  53,  54.  R.L.  Ill,  §57.  1906,  463,  IT,  §§  37,  258. 

1  Section  37.     Meetings  of  the  board  of  directors  may  be  held  within  Meetinas  ot 

2  or  without  the  commonwealth.     Any  meeting  of  the  board  of  directors  laoo.'^s, 

3  shall  be  a  legal  meeting  without  notice,  if  each  director,  who  is  absent,  "'  ^^  ^^'  ^^*' 

4  by  a  wTiting  filed  with  the  records  of  the  meeting,  waives  such  notice. 

capital  stock. 

1  Section  38.     Each  stockholder  shall  be  entitled  to  a  certificate,  which  stock 

2  shall  be  signed  by  the  president  and  by  the  treasurer  of  the  corporation,  HoBUfs!"' 

3  or  by  such  other  officers  authorized  by  the  by-laws,  shall  be  sealed  with  "'  ^  *"■ 

4  its  seal,  and  shall  certify  the  number  of  shares  owned  by  him  in  such 

5  corporation. 


1708 


RAILRO.'UJS. 


[Ch.\p.  160. 


Assessments 
upon  shares- 
R.  S.  39.  §  53. 
1852,  303. 
G.  S.  63, 
5§  8-10. 
1874.  372,  §  45. 
P.  S.  112.  §  57. 
R.  L.  111.  §  60. 
1906,  463, 
II,  §§  45,  258. 
9  Cush.  5. 

1  Gray,  544. 

2  Gray,  277. 

4  Gray.  61. 

5  Gray,  520. 
8  Gray,  596. 
107  Mass.  507. 
110  Mass.  213. 
113  Mass.  79. 


Collection  of 
assessment. 
1906,  463, 
II,  §  45. 


Purposes  for 
which  capital 
stock  may  be 
increased. 
1374,351,  §  2; 
372,  5  48; 
384,  I  1. 
P.  S.  112,  §60. 
1894,  502. 
R.  L.  Ill,  §61. 
1906.  463, 
II,  §§  46,  258. 


Forfeiture  for 
unauthorized 
increase  of 
capital  stock. 
1871,389. 
1874,  372, 
§177. 

P.  S.  112,  §  61. 
R.  L.  Ill,  §62. 
1006.  463, 
II,  §§  47,  258. 
109  Mass.  99. 
142  Mass.  146. 


Section  39.  The  directors  may  from  time  to  time  assess  upon  each  1 
share  such  amounts,  not  exceeding  in  all  one  hundred  dollars  on  a  2 
share,  or  the  price  fixed  under  section  fifty  of  chapter  one  hundred  and  3 
fifty-nine,  as  they  think  proper,  and  may  direct  the  same  to  be  paid  to  4 
the  treasurer,  who  shall  give  notice  thereof  to  the  subscribers.  If  a  sub-  5 
scriber  has  made  no  pajTaent  upon  his  shares,  the  directors,  thirty  days  6 
after  an  assessment  has  become  due,  may  declare  them  forfeited,  and  7 
may  transfer  them  to  any  responsible  person  who  subscribes  for  them  8 
and  pays  the  assessments  then  due.  If  a  subscriber  neglects,  for  thirty  9 
days  after  notice  from  the  treasurer,  to  pay  an  assessment  upon  his  10 
shares,  the  directors  may  order  the  treasurer,  after  giving  notice  of  the  11 
sale,  to  sell  such  shares  by  public  auction  to  the  highest  bidder,  and,  12 
upon  the  pajment  by  him  to  the  corporation  of  the  unpaid  assessments,  13 
of  interest  to  the  date  of  sale  and  of  the  charges  of  sale,  the  shares  shall  14 
be  transferred  to  him.  If  within  thirty  days  after  the  sale  the  purchaser  15 
does  not  make  said  pa\Taent  to  the  corporation,  the  sale  shall  be  can-  16 
celled,  and  the  subscriber  shall  be  liable  to  the  corporation  for  the  un-  17 
paid  assessments,  interest  thereon  and  charges  of  sale.  If  the  amount  18 
so  paid  by  the  purchaser  to  the  corporation  is  more  than  the  amount  for  19 
which  the  shares  were  sold,  the  subscriber  shall  be  liable  to  the  purchaser  20 
for  the  deficiency;  if  it  is  less,  the  purchaser  shall  be  liable  to  the  sub-  21 
scriber  for  the  surplus.  22 

Section  40.    If  a  subscriber  neglects  to  pay  his  assessment  for  thirty  1 

days  as  provided  in  the  preceding  section,  the  directors  may  elect  to  2 

proceed  at  law  against  said  delinquent  subscriber  to  recover  all  amounts  3 

due  and  payable  by  him  with  interest.    If  a  judgment  rendered  in  an  4 

action  against  a  subscriber  remains  unsatisfied  for  thirty  days,  all  amounts  5 

previously  paid  by  him  shall  be  forfeited  to  the  company  and  the  direc-  6 

tors  may  oft'er  such  shares  for  sale  as  provided  in  said  section.  7 

Section  41.     A  railroad  corporation,  for  the  purpose  of  building  a  1 

branch  or  extension,  or  of  aiding  in  the  construction  of  another  railroad,  2 

or  of  taking  stock  in  a  grain  elevator  corporation  in  the  organization  of  3 

which  it  is  an  associate,  or  of  erecting  and  operating  grain  elevators  within  4 

the  commonwealth,  or  of  building  depots,  or  of  abolishing  grade  crossings,  5 

or  of  making  permanent  investments  or  improvements,  or  of  funding  its  6 

floating  debt,  or  of  refunding  its  funded  debt,  or  for  the  payment  of  7 

money  borrowed  for  any  lawful  purpose,  or  for  other  necessary  and  lawful  8 

purposes,  may,  from  time  to  time,  in  accordance  with  sections  forty-seven  9 

and  forty-eight,  increase  its  capital  stock  or  bonds  beyond  the  amounts  10 

fixed  and  limited  by  its  agreement  of  association  or  its  charter,  or  by  11 

any  special  law.  12 

Section  42.     If  a  railroad  corporation  owning  a  railroad  in  this  com-  1 

monwealth  and  consolidated  with  a  corporation  owning  a  railroad  in  2 

another  state  increases  its  capital  stock,  or  the  capital  stock  of  such  3 

consolidated  corporation,  except  as  authorized  by  this  chapter  or  chapter  4 

one  hundred  and  fifty-nine,  without  authority  of  the  general  court,  or  5 

without  such  authority  extends  its  line  of  railroad,  or  consolidates  with  6 

any  other  corporation,  or  makes  a  stock  dividend,  the  charter  and  fran-  7 

chise  of  such  corporation  shall  be  subject  to  forfeiture.  8 


ftOTkl^'ilsue  of.       Section  43.    A  railroad  corporation  organized  under  the  laws  of  this    1 
1902, 441.  §  1.    commonwealth,  or  organized  under  the  laws  of  this  commonwealth  and    2 


CH.A.P.    160.]  RAILRO.\DS.  1709 

3  of  any  other  state  or  states  may,  by  vote  of  two  thirds  in  interest  of  its  1915,299, 

4  common  stockholders,  at  a  meeting  duly  called  therefor,  with  the  ap- 

5  proval  of  the  department,  issue  and  from  time  to  time  increase  preferred 

6  stock  of  one  or  more  classes  for  any  lawful  purposes  for  which  railroad 

7  corporations  are  authorized  to  issue  or  increase  their  capital  stock.     Each 

8  class  of  preferred  stock  shall  be  entitled  to  the  preferences  and  rights  and 

9  shall  be  subject  to  the  restrictions  and  limitations  fixed  by  such  vote,  as 

10  approved  by  the  department.     Such  stock  shall  be  issued  subject  to  all 

11  the  provisions  of  the  laws  of  this  commonwealth  governing  the  issue  of 

12  capital  stock  by  railroad  corporations. 

1  Section  44.     Each  class  of  preferred  stock  issued  under  authority  of  °efifr"ed  sto?k 

2  the  preceding  section  shall  be  designated  by  a  name  approved  by  the  ^'g^^,  ^^^     , 

3  department  to  distinguish  it  from  all  other  classes  of  stock  of  the  cor-  1915,' 299,' 

4  poration.     A  certified  copy  of  the  vote  creating,  and  of  the  order  of  the  1919, 350, 

5  department  approving  the  creation  of,  any  class  of  preferred  stock  shall 

6  be  filed  in  the  office  of  the  department  and  in  the  office  of  the  commis- 

7  sioner  of  corporations  and  taxation.     Every  certificate  of  stock  issued 

8  by  a  railroad  corporation  after  the  approval  by  the  department  of  the 

9  creation  by  it  of  preferred  stock  shall  contain  a  reference  to  all  votes  cre- 

10  ating  preferred  stock  and  a  brief  description  of  the  respective  preferences, 

11  rights  and  restrictions  of  each  class  of  said  stock. 

1  Section  45.     Any  preferred  stock  issued  under  authority  of  section  Preferred 

2  forty-three  shall  have  the  same  voting  power  as  the  common  stock,  except  power.  Um'Sf- 

3  that,  in  any  case,  there  may  be  such  limitations  of  the  voting  power  of  the  i'9i5°299?™3°*' 

4  preferred  stock  as  the  department  approves  and  finds  to  be  consistent 

5  with  the  adequate  protection  of  the  public  interest.     The  aggregate 

6  amount  at  par  of  preferred  stock  of  all  classes  issued  by  a  railroad  cor- 

7  poration  shall  at  no  time  exceed  twice  the  amount  at  par  value  of  its 

8  outstanding  common  stock,  and  no  class  of  preferred  stock  shall  be 

9  created  which  is  not,  in  a  manner  approved  by  the  department,  made 

10  subordinate  in  respect  to  dividends  or  to  participation  in  the  proceeds  of 

11  liquidation  to  the  preferences  of  every  previously  created  class  of  pre- 

12  ferred  stock. 

1  Section  46.     Upon  any  issiie  of  preferred  stock  the  new  shares  shall,  fo'^^b"off'ered°to 

2  unless  the  common  stockholders  shall,  with  the  approval  of  the  depart-  stockholders, 

3  ment,  otherwise  provide,  first  be  offered  to  the  common  stockholders  in  wis,  299,  §  3. 

4  the  manner  prescribed  in  sections  fifty  and  fifty-one  of  chapter  one  hun- 

5  dred  and  fifty-nine,  including  the  holders  of  such  of  its  evidences  of 

6  indebtedness  outstanding  as  on  their  face  entitle  the  holders  thereof 

7  to  participate  in  the  right  to  subscribe  to  such  shares;  and  any  shares 

8  of  the  preferred  stock  which  shall  not  have  been  duly  subscribed  and 

9  paid  for  by  the  common  stockliolders  or  their  assigns  and  by  holders  of 

10  such  evidences  of  indebtedness,  and  all  of  the  preferred  shares,  if  the 

11  common  stockholders  so  determine  and  the  department  approves,  may 

12  be  sold  in  the  manner  and  subject  to  section  fifty-one  of  chapter  one 

13  hundred  and  fifty-nine,  or  in  any  other  manner,  at  not  less  than  par, 

14  which  the  department  may  approve.     In  case  of  any  increase  in  the 

15  common  stock  of  the  corporation,  holders  of  preferred  stock  shall  be  en- 

16  titled  to  have  offered  to  them  shares  of  the  new  stock  in  the  maimer  pro- 

17  vided  in  sections  fifty  and  fifty-one  of  chapter  one  hundred  and  fifty- 


1710 


RAILBO.VDS. 


[ClL^.P.    160. 


nine,  \vhene\er  the  vote  creating  such  preferred  stock  as  approved  by  18 
the  department  shall  so  provide.  19 


Issue  of  capital 
stock,  bonds, 
coupon  notes, 
and  other 
e\ndences  of 
indebtedness. 
1S54,  286, 
§§  1,3.4. 
G.  S.  63. 
§§  120,  121, 
123. 
1869,  131,  §  1. 

1874,  372, 
§§49,  SI. 

1875,  58. 

1876,  170. 
P.  S.  112, 
§§  62,  64. 
1887,  191. 
18S9,  316,  §  2. 
1897,  337. 

R.  L.  109.  §  25: 
111,  §§  63,  65. 
1906,  463, 
II.  §§  48. 
50,  66,  25S. 

1912,  725. 
II,  §§  4,  5. 

1913.  784, 
§§  15,  16. 
1915,  303. 

10  Allen,  448. 
157  Mass.  37. 
216  Mass.  432. 


ISSUE  OF  STOCK,  BONDS,  ETC. 

Section  47.  A  railroad  corporation  may  issue  shares  of  capital  stock, 
bonds,  notes  or  other  evidences  of  indebtedness,  for  the  purpose  of  funding 
its  floating  debt  or  for  any  other  lawful  purpose,  and  may  mortgage  or 
pledge  as  security  for  the  payment  of  such  indebtedness  a  part  or  all  of 
its  railroad,  equipment  and  franchise  and  a  part  or  all  of  its  real  and  per- 
sonal property,  including  property  to  be  afterward  acquired.  Any  mort- 
gage executed  by  a  railroad  company  shall  secure,  on  equal  terms  with 
any  other  indebtedness  secured  by  such  mortgage,  all  bonds,  notes  and 
other  evidences  of  indebtedness  previously  issued  and  then  outstanding 
of  which  such  corporation  is  the  maker  or  which  it  has  assumed  tlirough 
merger  or  consolidation  with  the  original  and  principal  obligor,  except 
outstanding  bonds,  notes  or  other  evidences  of  indebtedness  while  and 
so  long  as  the  same  are,  in  accordance  with  any  promise  contained  therein, 
secured  by  another  direct  mortgage;  but  the  term  "mortgage"  as  used 
herein  shall  not  include  or  apply  to  the  pledge  of  securities  deposited  with 
a  trustee  as  collateral  to  secure  the  repayment  of  a  loan.  Its  bonds,  notes 
or  other  evidences  of  indebtedness,  payable  at  periods  of  more  than  one 
year  from  the  date  thereof,  may  be  issued  by  any  such  corporation  to 
an  amount  which,  when  added  to  the  amount  of  all  its  then  outstanding 
bonds,  notes  or  other  e\-idences  of  indebtedness,  payable  at  periods  of 
more  than  one  year  from  the  date  thereof,  of  which  it  is  the  maker  or 
which  it  has  assumed,  shall  not  cause  the  aggregate  amount  of  all  such 
bonds,  notes  and  other  evidences  of  indebtedness  to  exceed  the  amoimt 
of  the  capital  stock  of  the  corporation  actually  paid  in  at  the  time,  as 
determined  under  section  fifty-three  of  chapter  one  hundred  and  fifty- 
nine,  unless  any  excess  above  such  amount  shall  have  been  previously 
approved  by  the  department  as  consi.stent  with  the  public  interest,  taking 
into  consideration  the  fixed  charges  of  such  corporation,  the  amount  and 
character  of  its  contingent  liabilities  and  other  pertinent  conditions;  but 
in  no  event  shall  the  aggregate  amount  of  all  bonds,  notes  or  other  evi- 
dences of  indebtedness  of  which  it  is  the  maker  or  which  it  has  assumed 
exceed  twice  the  amount  of  said  capital  stock  as  determined  as  aforesaid; 
but  such  of  the  bonds  issued  or  to  be  issued  under  a  mortgage  as  are  de- 
posited to  retire,  at  or  before  maturity,  bonds  or  other  evidences  of  in- 
debtedness previously  issued  and  outstanding  at  the  date  of  such  mort- 
gage, while  so  deposited,  shall  not  be  taken  into  account  in  applying 
these  limitations.  No  bonds,  coupon  notes  or  other  evidences  of  indebt- 
edness payable  at  periods  of  more  than"'one  year  from  the  date  thereof 
shall  be  issued  unless  authorized  by  a  ^ote  of  the  stockholders  at  a  meet- 
ing called  for  the  purpose,  and  no  such  bonds,  coupon  notes  or  other  evi- 
dences of  indebtedness  shall  be  issued  unless  countersigned  and  authenti- 
cated by  a  person  or  trust  company  appointed  by  the  corporation  for 
that  purpose. 


1 
2 

3 
4 
5 
6 
I 

8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
IS 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 


Approval  of 
issue  of  bonds, 
coupon  notes 
and  other 
evidences  of 
indebtedness. 
Penalty. 
1894,  462, 
§§  1.  2. 


Section  48.  Before  any  railroad  corporation  shall  issue  any  shares 
of  capital  stock  or  any  bonds,  notes  or  other  evidences  of  indebtedness 
payable  at  periods  of  more  than  one  year  after  the  date  thereof,  it  shall 
apply  to  the  department  for  its  approval  of  the  proposed  issue  to  such 
amount  as  the  department  shall  determine  to  be  reasonable  and  proper 


Chap.  160.]  railro.vds.  1711 

6  for  the  purpose  of  funding  its  floating  debt  properly  incurred  for  lawful  ^^l-  ^-  5 1- 

7  purposes,  or  reasonable  and  proper  for  any  other  lawful  piu-pose  set  li3'?jJ 

S  forth  in  the  application  for  such  approval.    The  department  shall  render  ii.  §§  es.'es, 
9  a  wTitten  decision  assigning  its  reasons  therefor  upon  such  an  applica-  1912, 725, 

10  tion  within  thirty  days  after  the  final  hearing  thereon.    Any  order  of  the  i9i3.*7S4,  §  le. 

1 1  department  approving  any  such  issue  of  stock,  bonds,  notes  or  other  214  MaS:  529; 

12  evidences  of  indebtedness  may  provide  for  the  application  of  the  pro-  2^2  Mass  35^' 
1.3  ceeds  thereof  to  such  particular  uses  as  the  department  shall  by  that 

14  order  or  by  some  subsecjuent  order  specify,  and  the  corporation  shall  not 
1.5  apply  such  proceeds  otherwise  than  as  thus  specified  in  such  orders. 

16  The  decision  of  the  department  as  to  the  amount  of  stock  reasonably 

17  necessary  for  the  purpose  for  which  such  stock  is  proposed  to  be  issued 

15  shall  be  based  upon  the  price  at  which  such  stock  is  to  be  issued,  and  the 

19  department  shall  refuse  to  approve  any  particular  issue  of  stock,  if,  in 

20  its  opinion,  the  price  at  which  it  is  proposed  to  be  issued  is  so  low  as  to 

21  be  inconsistent  with  the  public  interest.    This  section  shall  not  require 

22  a  railroad  corporation  incorporated  under  the  laws  of  one  or  more  other 

23  states  or  foreign  countries,  as  well  as  under  the  laws  of  this  common- 

24  wealth,  to  apply  to  the  department  for  approval  of  the  issue  of  shares  of 

25  capital  stock  or  of  bonds,  notes  or  other  evidences  of  indebtedness  for  the 

26  sole  ultimate  purpose  of  providing  funds  for  additions  to  or  improvements 

27  of  property  of  such  corporation  or  of  any  corporation  controlled  by  it 

28  through  lease  or  stock  ownership,  if  such  property  has  a  situs  in  another 

29  state  or  country  by  the  laws  of  which  such  railroad  corporation  is  author- 

30  ized  to  operate  a  railroad  therein  and  to  make  such  additions  to  or  im- 

31  provements  of  such  property,  nor  to  apply  to  the  department  for  approval 

32  of  the  issue  of  shares  of  capital  stock,  bonds,  notes  or  other  evidences  of 

33  indebtedness  for  paying,  funding  or  refunding  indebtedness  incurred  for 

34  such  ultimate  purpose;   but  all  such  proposed  issues  and  the  authority 

35  therefor  shall,  before  the  issue  of  such  securities,  be  reported  to  the 

36  department.    Except  for  such  ultimate  purpose,  such  a  railroad  corpora- 

37  tion  shall  not,  without  the  approval  of  the  department,  issue  any  shares 

38  of  capital  stock,  or  any  bonds,  notes  or  other  evidences  of  indebtedness 

39  payable  at  periods  of  more  than  one  year  after  the  date  thereof,  in  ex- 

40  change  for  or  to  pay  for  shares  of  capital  stock,  notes,  bonds  or  other 

41  evidences  of  indebtedness  of  any  other  corporation  which  are  acquired 

42  or  contracted  for;  but  if  the  acquisition  or  holding  of  such  securities  by 

43  such  railroad  corporation  shall  be  authorized  by  the  laws  of  any  state 

44  or  country  where  it  has  been  incorporated,  and  shall  also  be  permitted 

45  by  the  laws  of  the  state  or  country  where  such  other  corporation  has 

46  been  incorporated,  the  department  may  authorize  the  acquisition  of  such 

47  securities  by  such  railroad  corporation,  and  may  approve  the  issue  of 

48  shares  of  capital  stock,  bonds,  notes  or  other  evidences  of  indebtedness 

49  by  such  railroad  corporation  in  exchange  for  or  to  pay  for  such  securities, 

50  provided  that  the  department  shall  find  that  such  acquisition  and  the 

51  terms  thereof  are  consistent  with  the  public  interest.     A  director,  treas- 

52  urer  or  other  officer  or  agent  of  a  railroad  corporation,  who  knowingly 

53  votes  to  authorize  the  issue  of,  or  knowingly  signs,  certifies  or  issues 

54  stock  or  bonds  contrary  to  this  or  the  preceding  section,  or  who  know- 

55  ingly  votes  to  authorize  the  application,  or  knowingly  applies  the  pro- 

56  ceeds  of  such  stock  or  bonds  contrary  to  any  provision  of  said  sections, 

57  or  who  knowingly  votes  to  assume  or  incur,  or  knowingly  assumes  or 

58  incurs  in  the  name  or  behalf  of  such  corporation,  any  debt  or  liability 

59  except  for  the  legitimate  purposes  of  the  corporation,  shall  be  punished 


1712 


RAILROADS. 


[Chap.  160. 


by  a  fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  for  60 
not  more  than  one  year,  or  both.  61 


Registered 
bonds. 
1869,  131, 
§§  2-4. 

1874,  372,  §  50. 
P.  S.  112,  §  63. 
R.  L.  Ill,  §  64. 
1906,  463, 
II,  §§  49,  258. 


BONDS   AND   MORTGAGES. 

Section  49.  At  the  request  of  the  owner  or  holder  of  any  coupon  1 
bonds  lawfully  issued,  the  railroad  corporation  issuing  them  may  issue  2 
registered  bonds  in  exchange  therefor,  upon  such  terms  and  under  such  3 
regulations  as  its  directors  may  prescribe,  and  with  the  consent  and  ap-  4 
proval  of  the  trustees,  if  any,  to  whom  a  mortgage  or  pledge  has  been  5 
executed;  and  such  registered  bonds  shall,  with  the  exception  of  the  6 
coupons,  correspond  in  all  respects  with  the  coupon  bonds  for  which  they  7 
are  exchanged,  and  shall  be  in  conformity  with  all  laws  authorizing  the  8 
issue  of  said  coupon  bonds.  Such  exchange  shall  not  affect  a  mortgage  or  9 
pledge  given  as  security  for  the  payment  of  such  coupon  bonds,  and  such  10 
mortgage  or  pledge  shall  remain  in  full  force  as  security  for  such  registered  1 1 
bonds;  and  the  coupon  bonds  shall  be  cancelled  and  destroyed  at  the  12 
same  time  that  the  registered  bonds  are  issued  in  exchange  therefor.  13 


TOUecttbil  Section  50.     All  bonds  or  notes  issued  by  a  railroad  corporation  shall     1 

^^^'ll'^vy.i    be  valid  and  binding,  although  negotiated  and  sold  by  it  or  its  agents  at    2 
1874, 372,  §  52!  less  than  par.         p.  s.  112.  §05.  r.  l.  111,  §66.  1906. 463, 11,  §§  51, 25s.  3 


Trustees 
entitled  to 
possession  may 
contract  witli 
corporation 
to  operate 
railroad. 
1857,  178,  §  1. 
G.  S.  63,  §  124. 
P.  S.  112,  §  66. 
R.  L,  111,  §67. 
1906.  463, 
II,  §§  52,  258. 


Section  51.  If  a  railroad  corporation,  having  executed  a  mortgage  1 
of  its  property,  rights  and  privileges,  or  of  a  part  thereof,  to  trustees  for  2 
the  benefit  of  its  general  creditors,  or  of  a  particular  class  of  creditors,  3 
makes  default  in  the  performance  of  the  condition  of  the  mortgage,  so  4 
that  the  trustees  or  their  successors  are  entitled  to  the  actual  possession  5 
and  usufruct  of  the  property,  rights  and  privileges  therein  couA^eyed,  in  6 
trust  for  the  purposes  specified  in  the  mortgage,  the  trustees,  after  entry,  7 
instead  of  retaining  actual  possession  of  the  mortgaged  premises  and  8 
operating  the  railroad,  may  contract  with  the  corporation  or  other  compe-  9 
tent  party  to  take  or  retain  for  them  the  possession  of  the  mortgaged  10 
premises,  and  to  use  and  operate  the  same  on  its  own  responsibility,  11 
accounting  with  the  trustees  for  the  earnings  and  income,  and  paying  12 
over  the  profits  and  net  income  periodically,  when  and  as  far  as  neces-  13 
sary  for  the  performance  of  the  conditions  of  the  mortgage,  if  a  majority  14 
in  interest  of  the  bondholders  or  creditors  under  the  mortgage  shall  so  15 
vote,  in  person  or  by  proxy,  at  a  meeting  called  therefor,  notice  of  which  16 
shall  be  published  ten  days  before  said  meeting  in  two  or  more  daily  news-  17 
papers  published  in  Boston,  and  in  at  least  one  newspaper  published  in  18 
each  county  where  the  railroad  is  located.  All  liabilities  incurred  by  the  19 
corporation  or  other  party  in  operating  the  railroad  under  such  contract  20 
shall  be  held  as  claims  against  and  be  paid  out  of  the  income,  in  the  same  21 
manner  and  to  the  same  extent  as  if  the  property  had  remained  in  the  22 
actual  possession  of  the  trustees  and  been  operated  by  them.  23 


Trustees  in 

possession  to 

call  annual 

meetings. 

1857,  178, 

§§2.3. 

G.  S.  63. 

§§  125.  126. 

P.  S.  112, 

§§  67.  68. 

R.  L.  Ill,  §68. 


Section  52.  Trustees  in  possession  of  a  railroad  under  a  mortgage 
shall  annually  call  a  meeting  of  the  bondholders  or  creditors  for  whose 
security  they  hold  the  railroad  in  trust,  to  be  held  in  December,  of  which 
notice  shall  be  given  by  publication,  at  least  ten  days  before  such  meeting, 
in  two  or  more  daily  newspapers  in  Boston,  and  in  at  least  one  news- 
paper in  each  county  where  the  railroad  is  located ;  and  at  such  meeting 


1 

2 

3 

4 
5 
6 


Chap.  160.]  railroads.  1713 

7  they  shall  submit  a  report  for  the  year,  similar  to  the  annual  report  of  ii''f5*s'3'258 

8  railroad  directors  to  stockholders.     If  they  fail  to  call  such  a  meeting, 

9  five  or  more  bondholders  or  creditors,  whose  claims  secured  by  the 

10  mortgage  amount  to  not  less  than  ten  thousand  dollars,  may  in  the  same 

11  manner  call  such  meeting,  to  be  held  in  the  January  following  said 

12  December. 

1  Section  53.     At  the  annual  meeting  held  under  the  preceding  section,  Election  and 

2  the  bondholders  or  creditors,  by  a  majority  in  interest  vote,  may,  in  of'tmstee"" 

3  person  or  by  proxy,  elect  three  trustees  under  the  mortgage  for  the  ensu-  g.^|' 63.^5^27. 

4  ing  year,  and  until  others  are  chosen  and  qualified.    And  the  trustees  or  ^  ^  y^-j'  l||- 

5  any  of  them  or  a  bondholder  or  creditor  may  submit  the  proceedings  of  ji°<5''ilf'2-o 

6  the  meeting  for  confirmation  to  a  justice  of  the  supreme  judicial  court, 

7  in  court  or  at  chambers,  first  giving  notice  of  their  intention  so  to  do  to 

8  the  former  trustees  under  the  mortgage,  to  the  trustees  of  all  other  exist- 

9  ing  mortgages  upon  the  railroad,  and  to  the  corporation,  seven  days  at 

10  least  before  the  hearing  thereon;  which  notice  may  be  served  by  an  of- 

1 1  ficer  or  disinterested  person.    The  justice  may  hear  the  parties,  ratify 

12  the  election,  and  enter  such  decree  as  he  may  find  necessary  to  transfer 

13  the  property  to  the  new  trustees;  which  decree  shall  be  filed  in  the  office 

14  of  such  clerk  of  the  court  as  the  justice  may  direct. 

1  Section  54.     The  supreme  judicial  court  shall  have  jurisdiction  in  Equity  juris- 

2  equity  of  all  cases  arising  under  the  two  preceding  sections,  and  of  all  supreme°judi- 

3  questions  arising  out  of  railroad  mortgages,  and  may  summarily  remove  i'l57ri78,'  §  5. 

4  a  trustee  under  a  railroad  mortgage,  whether  he  is  in  possession  of  the  p.'|.ii2,V7o.' 

5  railroad  or  not,  and  appoint  a  new  trustee  in  his  stead.  ^-  ^-  m-  §  ''°- 

1906.  463,  II,  §§  55.  25S.  127  Mass.  43.  171  Mass.  239.  21S  Mass.  367. 

1  Section  55.     A  purchaser  of  a  railroad  at  a  sale  under  a  valid  fore-  Rights  of 

2  closure  of  a  legal  mortgage  thereof,  and  his  successors  in  title,  shall,  rela-  SlSer^'fore- 

3  tive  to  the  construction,  maintenance  and  operation  of  said  railroad,  be  5ssTi42,  §  i. 

4  subject  to  all  the  duties,  liabilities  and  restrictions,  and  have  all  the  fgoe' 463' ^  ^*' 

5  powers  and  rights,  which  the  mortgagor  was  subject  to  and  had  at  the  ii'  §5  S6, 208. 

6  time  of  said  sale. 

STOCK  AND  SCRIP  DIVIDENDS. 

1  Section  56.     A  railroad  corporation  shall  not  declare  any  stock  or  stock  or  scrip 

2  scrip  di\'idend  or  divide  the  proceeds  of  the  sale  of  stock  or  scrip  among  bidden!  when" 

3  its  stockholders;  nor  shall  any  such  corporation  issue  any  share  of  stock  iln^ssg!  ^  ^' 

4  to  any  person  unless  the  par  value  of  the  shares  so  issued  is  first  paid  in  §*i'7*7^"^' 

5  cash  to  its  treasurer;  nor  shall  it  without  authority  of  the  general  coiu-t  ^^^^  igl-^  i'^^- 

6  increase  its  capital  stock  beyond  the  maximum  amount  fixed  by  its  R.  l' 109,' §  26. 

7  act  of  incorporation,  or  fixed  under  sections  forty-one,  forty-seven  and  li.  §'§  63,' 258. 

8  forty-eight.  214  Mass.  529. 

1  Section  57.     A  certificate  of  stock  or  scrip  issued  in  violation  of  the  LiabiUty  of 

2  preceding  section  shall  be  void;    and  each  director  of  the  corporation  is6s,'3H),  1 2. 

3  issuing  it  shall  be  liable  to  a  penalty  of  one  thousand  dollars,  to  be  re-  ^89^4,350,^2^' 

4  covered  by  indictment  in  the  county  where  he  resides,  or,  if  he  resides  |^„„^-  }9S'  5  ^i- 

_     .  .  ,  1  I         •  1  rt.  1906,  463, 

5  in  no  county,  in  the  county  where  he  is  commorant,  or  the  offence  was  ii'  §§64,258. 

6  committed;   but  if  any  such  director  proves,  that,  before  such  issue,  he  §366. 

7  filed  his  written  dissent  thereto  with  the  clerk,  and  at  no  time  voted  1920!  2! 

8  therefor,  he  shall  not  be  so  liable. 


1714 


RAILRO.VDS. 


[Chap.  160. 


Connecting: 
railroad  com- 
panies may  use 
each  other's 
roads. 
1845,  191. 
Ml.  2. 
1857,  291, 
§§1,3. 
G.  S.  6.3. 
I§  lis,  119. 
1872,  5.3,  §  12; 
180.  §  3 
1874,  372, 
§165. 
1876,  182. 
P.  S.  112,  §216. 
R.  L.  111. 
§272. 
1906,  46.3, 
II,  §§  205,  258. 
12  Gray,  393. 


CONNECTING   RAILROADS. 

Section  58.  If  a  railroad  constructed  after  April  eighth,  eighteen  1 
hundred  and  se^■enty-t^\•o,  meets  another  railroad  which  terminates  in  2 
the  same  city  or  town,  or  lawfully  crosses  another  railroad  at  the  same  3 
level  therewith,  the  corporation  by  which  either  of  said  railroads  is  4 
owned  may  enter  its  railroad  upon,  unite  the  same  with  and  use  the  5 
railroad  of  the  other;  if  a  railroad  constructed  after  said  date  meets  6 
another  railroad  which  passes  through  the  same  city  or  town,  the  corpora-  7 
tion  by  which  either  of  said  railroads  is  owned  may,  with  the  -RTitten  S 
consent  of  the  department  and  upon  such  terms  as  the  department  upon  9 
hearing  prescribes,  enter  its  railroad  upon,  unite  the  same  with  and  use  10 
the  railroad  of  the  other;  and  if  a  railroad  corporation  whose  railroad  11 
was  constructed  prior  to  said  date  is  specially  authorized  to  enter  its  12 
railroad  upon,  unite  the  same  with  and  use  the  railroad  of  another  cor-  1.3 
poration,  each  of  such  corporations  may  enter  upon,  unite  its  railroad  14 
with  and  use  the  railroad  of  the  other;  but  no  locomotive  engine  or  other  15 
motive  power  not  owned  and  controlled  by  the  corporation  owning  or  16 
lawfully  operating  the  railroad  shall  be  allowed  to  run  upon  a  railroad  17 
except  with  the  consent  of  such  corporation.  18 


Compensation 

for  drawing 

cars. 

1845,  191,  §  2. 

1857,291, 

§§1.3. 

G.  S.  63,  §  117. 

1874,  372, 

§166. 

P.  S.  112,  §217. 

R.  L.  Ill, 

§273. 

1906,  463, 

II,  §§  206,  258. 

14  Allen,  462. 


Section  59.     If  two  corporations  are  authorized  as  in  the  preceding  1 

section  each  to  enter  its  railroad  upon,  unite  the  same  with  and  use  the  2 

railroad  of  the  other,  each  of  them  shall  at  reasonable  times  and  for  a  3 

reasonable  compensation  draw  over  its  railroad  the  passengers,  merchan-  4 

disc  and  cars  of  the  other,  and  each  of  them  shall  for  a  reasonable  5 

compensation  provide  upon  its  railroad  convenient  and  suitable  station  6 

accommodations  for  the  passengers  and  merchandise  of  the  other  cor-  7 

poration  passing  to  and  o\'er  it,  and  shall  recei\'e  and  deli\er  the  same  8 

in  the  manner  in  which  it  receives  and  delivers  its  own  passengers  and  9 

freight.  10 


Determination 

of  rates  for 

drawing  cars. 

etc. 

1845,  191, 

§§2-4. 

1857,291,  §  2. 

1858,  10, 

G.  S.  63. 

§§117,  lis. 

1869,  40S,  §  5. 

1872,  ISO,  §  4. 

1874,  372, 

§167. 

P.  S.  112,  §  21S. 

R.  L.  Ill, 

§274. 

1906.  463, 

II.  §§  207.  258. 

9  Cush.  369. 

14  Gray,  253, 

266. 


Section  60.  If  the  corporations  cannot  agree  upon  the  stated  periods  1 
at  which  the  cars  of  one  shall  be  drawn  o^er  the  railroad  of  the  otlier,  2 
and  upon  the  compensation  to  be  paid  therefor,  or  upon  the  terms  and  3 
conditions  upon  which  accommodations  shall  be  furnished  for  the  pas-  4 
sengers  and  merchandise  of  the  other,  or  if  two  corporations  operating  5 
railroads  of  different  gauges  cannot  agree  as  to  the  requisite  terminal  0 
accommodations,  or  as  to  the  manner  in  which  freight  and  passengers  7 
shall  be  transferred  from  one  railroad  to  the  other  and  forwarded,  the  8 
department,  upon  the  petition  of  either  party  and  after  notice  to  the  9 
other,  shall  hear  the  parties,  and  determine,  ha\ing  reference  to  the  con-  10 
venience  and  interest  of  the  corporations  and  of  the  public  to  be  accom-  11 
modated  thereby,  the  stated  periods  for  drawing  cars,  the  compensa-  12 
tion  therefor,  the  terms  and  conditions  for  passengers  and  merchandise,  13 
or  the  requisite  terminal  accommodations  and  manner  of  transferring  14 
passengers  and  freight  as  aforesaid;  and,  upon  the  application  of  either  15 
party,  shall  determine  all  questions  between  the  parties  relative  to  the  16 
transportation  of  freight  and  passengers  and  other  business  upon  and  17 
connected  with  said  railroads  in  which  they  are  jointly  interested  and  IS 
the  manner  in  which  the  business  shall  be  done,  and  shall  apportion  to  19 
the  corporations  their  respective  shares  of  the  expenses,  receipts  and  in-  20 
come  of  the  same;    and  the  award  of  the  department  shall  be  binding  21 


Chap.  160.]  railro.ujs.  1715 

22  upon  the  respective  corporations  for  one  year  and  thereafter  until  the 

23  department  revises  the  same;  and  the  compensation  of  the  department 

24  for  services  and  expenses  under  this  section  shall  be  paid  by  the  respec- 

25  ti\e  corporations  in  such  proportions  as  the  department  shall  determine 

26  and  set  forth  in  its  award.     Upon  the  written  request  of  a  party  affected 

27  thereby,  filed  with  the  department  within  thirty  days  after  the  render- 

28  ing  thereof,  the  award  shall  be  filed  in  the  supreme  judicial  court  which 

29  shall  ha\'e  jurisdiction  to  revise  it  as  if  it  had  been  made  by  a  commission 
30, appointed  by  said  court. 

1  Section  61.     A  railroad  corporation  created  by  the  laws  of  another  Connecting 

2  state  shall  have  all  the  rights  and  privileges  relative  to  connecting  rail-  Sy  other''roads. 

3  roads,  under  the  three  preceding  sections,  of  a  corporation  created  by  {^^"[s?!; 

4  the  laws  of  this  commonwealth.  ^  ^®^- 

p.  S.  112,  §219.  R.  L.  Ill,  §275.  190G,  463,  II,  §§  208,  25S. 

1  Section  62.     Two  railroad  corporations,  incorporated  under  the  laws  Connecting 

2  of  the  commonwealth,  and  whose  railroads  enter  upon  or  connect  with  cOTt?a?t"har^ 

3  each  other,  may  contract  that  either  corporation  shall  perform  all  the  "oTnTafi't^an's- 

4  transportation  upon  and  over  the  railroad  of  the  other;   and  any  such  fhe^othe".'""^ 

5  corporation  may  lease  its  railroad  to  any  other  such  corporation;  but  the  5?^j*:3^^- 

6  facilities  for  travel  and  business  on  either  of  the  railroads  of  said  cor-  g  s.  b's, 

7  porations  shall  not  thereby  be  diminished.     Such  leases  shall  be  upon  i872,  iso,  §  i. 

8  such  terms  as  the  directors  agree,  and  as  a  majority  in  interest  of  the  1874!  372] 

9  stockliolders  of  both  corporations  at  meetings  called  therefor  approve,  fssacos, §  1. 

10  subject  to  section  fifty-four  of  chapter  one  hundred  and  fifty-nine.  5*§f2o,'2'2i. 

11  The  income  arising  from  such  contracts  or  leases  shall  be  subject  to  the  J^^l  ui'  ^ '' 

12  provisions  of  law  relative  to  the  right  of  the  commonwealth  to  purchase  §  276.     ' 

13  the  railroads  of  the  railroad  corporations  or  to  reduce  their  tolls,  in  the  li,  §'§  209, 238. 

14  same  manner  as  that  arising  from  the  use  of  the  railroads.     Copies  of  looray,  ios.' 

15  such  contracts  or  leases  shall  be  deposited  with  the  department,  and  fuiTa'st^ii;?. 

16  full  statements  of  the  facts  shall  be  set  forth  in  the  next  annual  return  i^op'^AXJ*ii8. 

17  of  such  corporations.    This  section  shall  not  authorize  a  lease  or  con- 

18  tract  between  two  railroad  corporations,  each  of  which  has  a  terminus 

19  in  Boston.    The  railroads  of  two  railroad  corporations  shall  be  con- 

20  sidered  to  enter  upon  or  connect  with  each  other,  within  the  meaning  of 

21  this  section,  if  one  of  such  railroads  enters  upon,  connects  with,  or  inter- 

22  sects  a  railroad  leased  to  the  other  or  operated  by  it  under  a  contract 

23  as  herein  authorized. 

1  Section  63.     A  railroad  corporation  shall  not  lease  or  contract  for  Term  of  lease 

2  the  operation  of  its  railroad  for  a  period  of  more  than  ninety-m'ne  years  n°nety-ninr 

3  without  the  consent  of  the  general  court;    but  this  section  shall  not  ilsa^os, §2. 

4  render  invalid  a  lease  approved  by  the  stockholders  of  a  corporation  r.l.Vh,^^^^' 

5  before  July  first,  eighteen  hundred  and  eighty.        1906, 463, 11,  §§  210,  25s.  §  277. 

taking  securities  of  other  corporations. 

1  Section  64.     A  railroad  corporation,  unless  authorized  by  the  gen-  Taking  securi- 

2  eral  court  or  by  the  six  following  sections,  shall  not  directly  or  indirectly  c'o,?pora°io". 

3  subscribe  for,  take  or  hold  the  stock  or  bonds  of  or  guarantee  the  bonds  Jot'S;  53^5 17; 

4  or  dividends  of  any  other  corporation;  and  the  amount  of  the  bonds  of  }|?4,^3|2.  §  i-,3. 

5  one  or  more  other  corporations  subscribed  for  and  held  by  a  railroad  ^  l'VuI??' 


171G 


Il.ULRO-U)S. 


[Ch.\p.  160. 


1906.  463, 
II,  §§  57,  258. 

197  Mass.  194. 

198  Mass.  413. 
201  Mass.  370. 
208  Mass.  644. 
233  Mass.  502. 


corporation,  or  guaranteed  by  it  conformably  to  special  authority  of  6 
the  general  court  or  the  authority  given  in  said  sections,  with  the  7 
amount  of  its  own  bonds  issued  in  conformity  with  sections  forty-seven  8 
and  forty-nine,  shall  not  exceed  at  any  time  the  amount  authorized  by  9 
said  section  forty-seven,  computed  as  provided  in  section  fifty-three  of  10 
chapter  one  hundred  and  fifty-nine.  11 


stock  in  a 
telegraph 
company. 
1849,  93,  §  S. 
G.  S.  63.  §  12. 
1874,  372,  I  54. 
P.  S.  112,  §  75. 


Section  65.     A  railroad  corporation  may  hold  stock  in  a  telegraph  1 

company,  whose  telegraph  connects  two  or  more  places  on  the  railroad,-  2 

to  an  amount  not  exceeding  two  hundred  dollars  for  each  mile  of  rail-  3 

road  so  connected.                 r.  l.  iii,  §  78.                woe,  463,  ii,  §§  ss,  258.  4 


Section  66.     A  railroad  corporation  may  guarantee,  to  an  amount 
not  exceeding  five  per  cent  of  its  capital  stock,  the  bonds  of  any  corpora- 


Guaranty 

of  bonds  of 

steamship 

companies. 

Jo-?' ?:JZ' I  Ii    tion  incorporated  in  the  commonwealth  for  the  purpose  of  carrving 

18/4,372,  §  55.     »      .    ,  ^  i  -i       i  p      i   •  "   j    ? 

P.  s.  112.  §76    treight,  passengers  and  mails  between  any  port  or  this  commonwealth 
1906.463,'      '  and  Europe;  or,  upon  adequate  security  therefor,  may  issue  its  own 
"    bonds  to  the  same  amount,  conformably  to  the  provisions  of  sections 
forty-seven  and  fortv-eight. 


Railroad 
corporation 
may  become 
associate  in 
grain  elevator 
corporation. 
1874,  384, 
§§  1.2. 
P.  S.  112, 
H  77,  78. 
R.  L.  Ill,  §80. 
1906.  463, 
II,  §§  60,  258. 


Section  67.     A  railroad  corporation  may  become  an  associate  under  1 

chapter  one  hundred  and  fifty-sLx  in  the  formation  of  a  corporation  for  2 

the  purpose  of  erecting  and  operating  a  grain  elevator  within  the  com-  3 

monwealth,  and  may  take  stoc-k  in  any  elevator  corporation  so  organ-  4 

ized,  and,  at  all  meetings,  and  in  all  transactions  of  such  elevator  cor-  5 

poration,  the  president  of  the  railroad  corporation,  or  in  liis  absence  any  6 

officer  appointed  by  its  board  of  directors,  may  represent,  act  and  vote  7 

in  the  name  of  such  railroad  corporation.  8 


Connecting 
roads  may 
guarantee 
each  other's 
bonds. 

1870," 325,  §  4. 
1871,  384. 
1874,  372,  §  .56. 
P.  S.  112,  §79. 


Section  68.  If  two  corporations  own  and  operate  connecting  raO- 
roads,  which  are  wholly  constructed,  either  corporation  may  guarantee 
the  bonds  of  the  other,  upon  such  terms  and  to  such  an  extent  as  may 
be  authorized  at  a  meeting  called  therefor,  if  the  bonds  so  guaranteed 
are  issued  in  conformitv  with  law.       r.  l.  m.  §  si.       i9oe,  463,  ii,  §§  6i,  258. 


Railroad 
corporations 
may  aid  in 
construction 
of  branches, 

1874,351,  §4; 
372,  §  57. 
P.  S.  112.  §  80. 
R.  L.  Ill,  §82. 
1906,  463, 
II,  §§  62,  258. 
171  Mass.  239. 


Section  69.     A  railroad  corporation  may  aid  in  the  construction  of  1 

any  branch  or  connecting  railroad  witliin  the  limits  of  the  common-  2 

wealth,  whether  connecting  by  a  railroad  or  steamboat  line,  by  sub-  3 

scribing  for  shares  of  stock  in  such  corporation,  or  by  taking  its  notes  or  4 

bonds  secured  by  mortgage  or  otherwise,  and  may  vote  on  all  shares  of  5 

stock  so  subscribed  for  and  held;  but  a  corporation  shall  not  so  subscribe  6 

to  an  amount  in  excess  of  two  per  cent  of  its  paid-up  capital  stock,  or  7 

mortgage  its  property  to  secure  the  loans  or  sub.scriptions  made  by  any  8 

other  corporation  under  this  section,  except  by  a  vote  of  a  majority  in  9 

interest  of  the  stockholders  at  a  meeting  called  therefor.  10 


paniermay'ki'-  SECTION  70.  A  railroad  Corporation  may  acquire,  hold,  vote,  sell, 
ties  SIIt^bI  ^nd  negotiate  the  stock  and  securities  of  terminal  companies  organized 
m^'^operate  undcr  the  laws  of  the  commonwealth,  and  may  guarantee  the  bonds  of 
compan^S  such  Companies.  A  railroad  corporation  may  also  acquire,  hold,  main- 
docks,  etc'        tain  and  operate  steamsliip  companies,  ferries,  ferry  boats  and  docks. 

1912,  725,  II,  §  6. 


ChaI'.    IGO.]  RAILROADS.  1717 


CONSOLIDATION   OF   RAILRO.VD  COMP.^J»JIES   RESTRAINED. 

1  Section  71.     No  corporation  owning,  leasing  or  operating  a  railroad  o^m""',!"™ 

2  wholly  or  partly  in  the  commonwealth,  nor  any  person  or  corporation  railroad  not 

3  acting  in  its  interest  shall,  directly  or  indirectly,  acquire,  or  attempt  to  »tock  in 

4  acquire  by  purchase,  exchange  of  shares,  or  in  any  other  way,  any  shares  rSoad" 

5  of  the  capital  stock  of  any  domestic  railroad   company  not   lawfully  §§°i%*.*^' 

6  leased,  owned  or  operated  by  it  prior  to  ISlay  first,  nineteen   hundred 

7  and  seven,  except  under  specific  authority  provided  by  law.     No  such 

8  domestic  railroad  company,  or  any  officer,  director,  servant  or  agent 

9  thereof,  shall  permit  or  suffer  the  said  corporation  or  any  of  its  officers 

10  or  agents  to  exercise  any  control  whatsoever  over  the  corporate  acts  of 

11  such  domestic  company,  except  as  hereinafter  provided. 

1  Section  72.     The  presidents,  or  a  majority  of  the  boards  of  directors.  Department 

2  or  the  holders  of  not  less  than  one  third  in  interest  of  the  capital  stock  of  conSfdation 

3  two  or  more  railroad  corporations,  may  apply  to  the  department  for  its  eenerXcmirt. 

4  determination  as  to  whether  the  consolidation  of  the  railroads  of  such  i907,  sss,  §3. 

5  corporations  is  consistent  with  the  public  interest.     If  the  department, 

6  after  public  notice  and  hearing,  shall  find  that  such  consolidation  is  con- 

7  sistent  with  the  public  interest,  it  shall  report  its  findings  to  the  general 

8  court,  together  with  drafts  of  a  law  or  laws  to  authorize  such  consolida- 

9  tion  upon  the  agreement  of  the  corporations  to  be  consolidated,  and  after 

10  ratification  by  a  vote  of  not  less  than  two  thirds  in  interest  of  the  stock- 

11  holders  in  each,  and  under  terms  and  conditions  which  will  effectually 

12  prevent  any  decrease  in  the  facilities  for  transportation  on  the  railroad 

13  of  either  of  such  corporations  or  any  increase  in  the  rates  for  passengers 

14  or  freight  by  the  said  consolidation,  and  which  will,  in  the  opinion  of 

15  the  department,  secure  to  the  commonwealth  adequate  control  over  the 

16  organization,  conduct,  and  management  of  the  said  corporations  and 

17  railroads,  and  upon  such  other  terms  and  conditions  as  may  seem  to  the 

18  department  desirable  and  proper. 

1  Section  73.     In  case  of  any  lease,  purchase  and  sale  or  consolidation  Rates  not  to 

2  as  authorized  by  the  preceding  section,  no  rate,  fare  or  charge  for  trans-  „  i2cihtie^ 

3  portation  of  passengers  or  property  shall  be  increased,  and  no  facilities  cMsoiidSiom 

4  for  transportation  shall  be  diminished  thereby,  nor  in  connection  there-  i907,  sss,  §4. 

5  with  or  as  a  result  thereof  shall  there  be  any  increase  in  the  aggregate 

6  outstanding  capital  stock  or  indebtedness  of  the  contracting  companies. 

1  Section  74.     A  railroad  corporation,  which  violates  any  provision  of  fgof'sis  §  0 

2  section  seventy-one  or  seventy-two,  shall  be  punished  by  a  fine  of  ten 

3  thousand  dollars;   and  any  officer  or  agent  of  such  railroad  corporation 

4  who  procures,  aids  or  abets  such  corporation  in  any  violation  of  said  sec- 

5  tions,  and  any  partnership,  trustee  or  other  person  who  procures,  aids  or 

6  abets  in  any  violation  thereof,  shall  be  punished  by  a  fine  of  one  thou- 

7  sand  dollars  or  by  imprisonment  for  not  less  than  six  months  nor  more 

8  than  one  year,  or  both. 

location  and  construction  of  railro.^d. 
Conditions  Precedent. 

1  Section  75.     No  railroad  corporation  shall  purchase  or  take  bv  emi-  Establishing 

_j,  PI*  1  method  for 

2  nent  domam  or  enter  upon  or  use,  excei)t  tor  making  surveys,  any  land  crossing  high- 

3  or  other  property  for  the  construction  of  its  railroad  or  of  any  branch  or  iSitui,  §  1. 


1718 


RAILROADS. 


[Chap.  160. 


p.  S.  112.  5  94. 
R.  L.  Ill,  §98. 
1906.  463, 
II.  §§  82,  258. 
7  Cush.  506. 


extension  thereof  until  the  county  commissioners  of  the  county  where  4 
such  land  or  other  property  is  situated,  after  hearing  the  parties,  have  5 
determined  the  manner  in  which  the  railroad  shall  cross  the  highways  6 
and  other  ways  within  such  county,  nor  until  it  has  obtained  from  the  7 
department  the  consent  required  by  sections  ninety-seven  and  one  hun-  8 
dred  and  two  in  all  cases  in  which  the  county  commissioners  adjudge  9 
that  public  necessity  requires  the  crossing  at  the  same  level;  and  notice  10 
of  such  hearing  shall  be  given  by  publication  for  three  successive  weeks  11 
in  one  or  more  newspapers  published  in  such  county,  the  last  publication  12 
to  be  at  least  se^■eIl  days  before  the  hearing.  1.3 


Prerequisites 
to  use  of  land 
for  railroad. 
1852,  303,  §  1, 
G.  S.  63,  §  7. 
1871,  333. 
1878,  215, 
§§  1,  2. 

1881,  111,  I  2. 
P.  S.  112, 
§§  85,  86. 
R.  L.  111,5  88. 
1906,  463, 
11,  §5  71.  258. 


Section  76.  No  railroad  corporation  shall  take  by  eminent  do- 
main or  enter  upon  or  use,  except  for  making  surveys,  land  or  other 
property  for  the  construction  of  its  railroad  or  any  branch  or  exten- 
sion thereof  until  a  sworn  estimate  of  the  total  cost  of  constructing  the 
same,  prepared  by  its  chief  engineer,  has  been  submitted  to  the  depart- 
ment and  approved  by  it;  nor  until  the  department  is  satisfied  that  an 
amount  of  the  capital  stock  of  the  corporation  equal  to  at  least  fifty  per 
cent  of  such  estimated  cost  has  been  actually  subscribed  by  responsible 
parties  without  any  condition  which  invalidates  the  subscription,  and 
that  twenty  per  cent  of  the  par  value  of  each  share  has  been  actually 
paid  in,  and  that  the  authority  and  consent  required  by  the  preceding  11 
section  have  been  obtained;  nor  until  the  clerk  of  the  department,  upon  12 
its  order,  has  filed  a  certificate  with  the  state  secretary  that  this  section  13 
has  been  complied  with;  nor  until  the  corporation  has  paid  to  the  state 
secretary  a  fee  of  fifty  dollars  for  filing  such  certificate.  The  certificate 
of  a  master  in  chancery  or  a  justice  of  a  court  of  record  for  the  county 
where  a  subscriber  resides  that  he  owns  property  in  his  own  name  equal  17 
in  value,  above  all  encumbrances,  to  the  amount  of  his  subscription  shall  18 
be  conclusive  evidence  of  his  responsibility.  If  the  department  refuses 
its  approval  to  an  estimate  or  a  subscription  list  so  submitted,  it  shall 
in  writing  state  its  reasons  therefor  in  detail  at  the  time  and  shall  include 
them  in  its  next  annual  report. 


1 
2 

3 
4 
5 
6 
7 
8 
9 
10 


14 
15 
16 


19 
20 
21 

00 


Location  not 
to  be  within 
three  miles  of 
state  house. 
1882,265.  §4. 
R.  L.  Ill,  5  89. 
1906,  463.  II, 
§§  72,  258. 


j54. 
,  §1. 

,  §58. 


What  may  be 
purchased. 
R.  S.  39,  §  ■ 
1853,  351, 
G.S.  63, 
§§  17,19. 
1874,  372, 
P.  S.  112,  §88. 
R.  L.  111,5  90. 
1906,  463,  II, 
§5  73,  258. 
1912,  725, 
n,  §  2. 

1915.  157.  5  1. 
9  Met.  553. 
4  Gray,  301. 
113  Mass.  277. 


Section  77.     No  railroad  or  part  thereof  which  is  operated  by  steam  1 

power  shall  be  located  or  constructed  within  three  miles  of  the  state  2 

house  without  the  previous  written  consent  of  the  department,  and    of  3 

the  board  of  aldermen  of  am'  city  or  of  the  selectmen  of  any  town  where  4 

the  location  is  sought.  .5 

Purchase  of  Land. 

Section  78.     A  railroad  corporation  may  purchase  land  for  the  loca-  1 

tion  of  its  railroad  \\ithin  the  limits  of  the  route  fixed  under  section  2 

twenty  or  twenty-one,  and  may  also  purchase  so  much  more  land  as  may  3 

be  reasonably  necessary  for  the  proper  construction  and  security  of  the  4 

railroad  and  the  convenient  operation  thereof,  for  one  or  more  new  tracks  .5 

adjacent  to  other  land  occupied  by  it  by  a  track  or  tracks  already  in  use,  6 

and  for  the  purpose  of  cuttings,  embankments,  and  for  procuring  stone  7 

and  gravel,  and  for  stations,  car  houses,  roundhouses,  freight  houses,  8 

yards,  docks,  wharves,  elevators  and  other  structures.  9 

lis  Mass.  391.  161  Mass.  387.  213  Mass.  40.  214  Mass.  8. 


pu?cha°8^°iand.      Section  79.     The   Corporation   may,   within   one  year  after  it  has 
r^l'iii§92    purchased  land  for  railroad  purposes,  file  with  the  commissioners  of 


CUAP.    160.]  RAILRO.UJS.  1719 

3  each  county  where  such  hind  is  situated  a  description  thereof,  defining  idos.  463.  ii. 

4  the  courses,  distances  and  boundaries  of  such  land  and  certified  by  the  iss^wfi^ise. 

5  clerk  of  the  department  in  such  form  and  with  such  other  particulars 

6  as  the  rules  of  the  department  may  require. 

Taking  by  Eminent  Domain. 

1  Section  80.     If  a  railroad  corporation  is  not  able  to  obtain  by  agree-  Riing  of 

2  ment  with  the  owner  any  land  necessary  for  the  location  of  its   rail-  i9T2,'725, 

3  road,   it  may  file  with  the  department  a  description  of  such  location,  "'^^ 

4  which  shall  not  be  more  than  five  rods  wide  unless  authorized  by  the 

5  department  under  section  eighty -three.    Such  description  shall  define  the 

6  courses,  distances  and  boundaries  and  shall  be  in  such  form  and  shall 

7  contain  such  plans  and  particulars  as  may  be  required  by  the  rules  of  the 

8  department.    Within  ten  days  after  the  filing  of  such  description  with 

9  the  department,  the  corporation  shall  submit  to  the  board  of  aldermen  of 

10  every  city,  and  to  the  selectmen  of  every  town  through  which  the  route 

11  of  the  proposed  railroad  passes,  a  copy,  duly  certified  by  the  clerk  of  the 

12  department,  of  so  much  of  the  said  location  as  applies  to  that  part  of  the 

13  said  railroad  which  lies  within  the  limits  of  such  city  or  town.    The  board 

14  of  aldermen  or  the  selectmen  shall  thereupon  appoint  a  time  and  place 

15  for  a  hearing  in  the  manner  provided  by  section  nineteen. 

16  If  the  board  of  aldermen  or  the  selectmen,  after  notice  and  hearing 

17  as  aforesaid,  shall  agree  with  the  directors  as  to  said  location,  or  as  to  any 

18  location  of  the  said  railroad  in  their  city  or  town,  they  shall  in  such 

19  agreement  fix  the  location,  and  sign  and  give  to  the  directors  a  certificate 

20  setting  it  forth,  and  shall  make  report  of  their  action  to  the  department 

21  within  sixty  days  after  the  said  copy  has  been  submitted  to  them  as 

22  hereinbefore  provided.    If  they  fail  so  to  agree  within  sixty  days  after 

23  said  corporation  has  submitted  the  location  to  the  board  of  aldermen 

24  or  to  the  selectmen,  the  directors  shall,  within  sixty  days,  petition  the 

25  department  to  fix  the  location  in  that  city  or  town,  and  the  department, 

26  after  notice  to  the  board  of  aldermen  or  to  the  selectmen,  shall  forthwith 

27  hear  the  parties  and,  within  ninety  days,  fix  the  location  in  that  city  or 

28  town,  and  shall  make  a  certificate  setting  forth  the  location  so  fixed,  which 

29  shall  be  certified  by  its  clerk  to  the  board  of  directors.    The  costs  of 

30  the  petition  shall  be  paid  by  the  corporation.    The  department  shall  by 

31  order  finally  fix  the  location  of  the  said  railroad  in  accordance  with  the 

32  original  location  as  varied  in  the  said  certificate,  subject  to  the  provi- 

33  sions  of  the  following  section. 

1  Section  81.     If  a  railroad  corporation  is  not  able  to  obtain  by  agree-  Change  of 

2  ment  with  the  owner  any  land  necessary  for  the  location  of  its  railroad,  iTokl'gH'evous 

3  it  shall  furnish  a  plan  of  the  land  to  the  owner.     An  owner  of  land  ag-  r'TIo,  §co. 

4  grieved  by  the  location  of  a  railroad  crossing  his  land  in  such  manner  lf*^'f,^^i\i' 

5  as  to  be  of  grievous  damage,  which  could  be  avoided  without  serious  i872  53', lis, 

6  injury  to  others,  may,  within  thirty  days  after  receiving  the  plan  of  his  isri.  372, 

7  land,  as  provided  herein,  petition  the  department,  who  shall  give  notice  p.  s.  ii2,' 

8  and  hear  the  parties.    If  it  appears  that  such  location  will  greatly  and  u,  1°  n\°^' 

9  unnecessarily  damage  the  petitioner,  and  that  it  can  be  so  changed  as  i9o'i°463°n, 

10  entirely  or  partly  to  avoid  such  damage  without  material  detriment  to  f,f,o°'72l  '^^' 

11  the  line  of  the  railroad  and  without  great  injury  to  other  parties,  the  "'A?- 

12  department  shall  change  such  location  accordingly.    It  shall  give  to  each  H6  Massl  194; 

13  party  a  certificate  of  its  determination  within  sixty  days  after  receiving 


1720 


RAILRO.^DS. 


[Chap.  IGO. 


the  petition.    The  necessary  expenses  of  the  department  and  the  costs  1-1 

of  the  petition  shall  be  paid  by  the  corporation;  but  if  the  department  15 

decides  that  the  petition  was  frivolous,  such  expenses  and  costs  shall  16 

be  paid  by  the  petitioner.  17 


Taking  of  land 
for  location  of 
tracks. 

:833,  187,  §  1. 
1835,  148,  §  3. 
R.  S.  39,  §§  55, 
56,  76. 


Section  82.     After   the   location   of   the   railroad   has   been   finally  1 

determined  under   tlie   two   preceding   sections,  the   corporation  may  2 

take  any  land  witliin  such  location  by  eminent  domain  under  chapter  3 

seventy-nine.                                             i849, 153.  4 

G.S.  63.  §§  19,  21,39.  p.  S.  112,  §95,  1906,  403,  II.  §§  83,  258. 

1S74,  372,  §  63.  R.  L.  Ill,  §99.  1912,  725,  II,  §  3. 


Taking  of 
property  for 
other  purposes. 
1835,  148,  §  3. 
R.  S.  39,  §  55. 
1853,351,  §  1. 
G.  S.  63,  §  19. 
1874,  355,  §  1 ; 
372,  §  60. 
P.  S.  112,  §91. 
1884,  134. 
R.  L.  Ill,  §95. 
1906,  463,  II, 
l§  78,  2.58. 
1915,  157,  §  2. 


Section  8.3.     If  a  railroad  corporation  requires  land  for  any  cf  the  1 

purposes  specified  in  section  seventy-eight  other  than  for  the  location  of  2 

its  railroad  not  more  than  five  rods  wide  as  provided  in  the  three  pre-  3 

ceding  sections,  and  is  unable  to  obtain  it  by  agreement  with  the  owner,  4 

it  may  apply  to  the  department,  which,  after  notice  to  the  owner  and  a  5 

hearing,  may  prescribe  the  limits  within  which  it  may  be  taken  without  6 

liis  permission ;  and  the  corporation  may,  M'ithin  one  year  after  the  decree,  7 

take  such  property  by  eminent  domain  under  chapter  seventy-nine.  8 


119:>JIass.  516. 


141  Mass.  481. 


185  Mass.  186. 


213  Mass.  17. 


Taking  land  of 
other  railroad, 
etc. 

1912,  725, 
II,  5  1. 


Improvement 
of  alignment. 
1887,  430. 
R.  L.  Ill,  §94. 
1906,463,  II, 
§§  77,  258. 


Section  84.     A  railroad  corporation  may  purchase,  or  take  in  the  1 

manner  pro\aded  in  the  preceding  section,  from  time  to  time,  any  lands  2 

or  rights  belonging  to  any  other  railroad  or  other  public  service  cor-  3 

poration  not  necessary  for  the  business  of  such  corporation  at  such  4 

time  or  in  the  reasonably  near  future,  proxided  that  tliis  section  shall  5 

not  authorize  it  to  acquire  by  eminent  domain  any  part  of  the  location  6 

or  right  of  way  of  any  otlier  railroad  or  street  railway  company  except  7 

such  lands  or  rights  as  the  department  adjudges  necessary  for  the  support,  8 

construction  and  repair  of  bridges  or  other  methods  of  crossing  such  rail-  9 

road  or  street  railway.  10 

Change  of  Location. 

Section  85.     A  railroad  corporation,  ^dth  the  wTitten  approval  of  1 

the  department,  obtained  upon  petition,  and  after  notice  to  all  persons  2 

interested,  and  a  hearing,  may,  for  the  purpose  of  impro\'ing  the  align-  3 

ment  of  its  railroad,  change  its  location,  subject  to  the  pro\-isions  of  this  4 

chapter  relati^'e  to  the  fixing  of  the  route  of  railroads,  and  may  take  land  5 

for  such  new  location  by  eminent  domain  under  chapter  seventy-nine.  6 


Direction  of 
road  rnay  be 
varied. 

1833,  187,  §  7. 
R.  S.39,  §  73. 
G.  S.  63,  §  3S. 
1874,  372,  §  59. 
P.  S.  112,  §90. 
R.  L.  Ill,  §93. 
1906,  463,  II. 
I§  76,  25S. 
1912,  725. 
II.  5  3. 
1  Gray,  340. 
109  Mass,  527. 


Section  86.  A  railroad  corporation,  ha\dng  taken  land  for  its  rail-  1 
road,  may  vary  the  direction  of  said  railroad  in  the  city  or  town  where  2 
such  land  is  situated ;  but  it  shall  not  locate  any  part  thereof  outside  the  3 
limits  of  the  route  fixed  under  section  twenty  or  twenty-one,  without  the  4 
\\Titten  consent  of  the  board  of  aldermen  or  selectmen,  if  it  was  fixed  5 
under  section  twenty,  or  of  the  department,  if  it  was  fixed  under  section  6 
twenty-one.  If  the  board  of  aldermen  or  the  selectmen,  whose  consent  7 
is  required  to  such  change  of  direction,  shall  neglect  or  refuse  to  give  8 
such  consent  witliin  six-ty  days  after  the  railroad  company  has  in  wTit-  9 
ing  requested  the  same,  the  directors  may  petition  the  department  for  10 
leave  to  make  such  change  of  direction.  11 

The  corporation  may  take  land  for  such  new  location  by  eminent  12 
domain  under  chapter  se^•enty-nine,  and  in  so  far  as  said  new  location  13 


Chap.  160.]  eailkoads.  1721 

14  as  finally  fixed  shall  differ  from  the  location  originally  taken,  the  original 

15  location  shall  be  held  to  be  abandoned,  and  the  rights  of  all  persons 

16  interested  in  so  much  of  the  original  location  as  is  included  within  the 

17  abandoned  part  shall  ^e^^ve  as  if  no  taking  had  been  made.    Any  person 

18  who  has  suffered  loss  or  been  put  to  expense  by  having  his  lands,  build- 

19  ings,  rights  or  other  property  included  in  the  original  taking,  but  not 

20  included  in  the  final  taking,  shall  be  entitled  to  have  liis  damages  there- 

21  for  assessed  under  chapter  seventy-nine,  but  the  value  to  him  of  the 

22  use  of  the  land  between  the  time  of  said  taking  and  the  abandonment 

23  thereof  shall  be  taken  into  consideration  in  determining  the  sum  to 

24  which  he  is  entitled. 

Miscellaneous. 

1  Section  87.     Land,  outside  the  location  of  the  railroad  five  rods  in  Land  outside 

2  width,  taken  or  purchased  for  railroad,  depot  or  station  purposes  shall  I'Sa.  35?.  §"3. 

3  not  be  exempt  from  taxation.  g.  s.  63.  §  20.  is74, 372.  §  02. 

p.  S.  112,  §  92.  1906,  463.  II,  §§  79,258.  151  Mass.  69. 

1895,356.  4  Met.  564.  1.85  Mass.  114. 

R.  L.  Ill,  §  96.  SCush.  237.  186  Mass.  128. 

1  Section  88.     No  length  of  possession  or  occupancy  of  land,  which  xo  prescriptive 

2  belongs  to  a  raiboad  corporation,  by  an  owner  or  occupier  of  adjoining  ofcorlToratiin. 

3  land  shall  create  in  him  or  in  a  person  claiming  under  him  a  right  to  is?!;  372; 

4  such  land  of  the  corporation.  ^  '°^- 

p.  S.  112,  §215.  145  Mass.  433.  211  Mass.  174. 

R.  L.  Ill,  I  271.  140  Mass.  268.  212  Mass.  421. 

1906. 463,  II.  §§  80,  25S  147  Mass.  118.  226  Mass.  286. 

135  Mass.  107.  161  Mass.  283.  235  Mass.  402. 

1  Section  89.     The  department  shall,   from  time  to  time,  prescribe  Rules  as  to 

2  rules  relative  to  the  form  in  which  all  descriptions  of  locations  of  rail-  recordlet" 

3  roads  shall  be  made,  the  particulars  to  be  contained  therein  and  the  ^^i'ui.'Hi. 

4  manner  in  which  such  descriptions  shall  be  uniformly  kept  for  preserva-  fg^-  l^l'  ^  ^''■ 

5  tion  and  convenient  reference  in  the  offices  of  the  clerks  of  the  commis-  ^^-  §5  si,  258. 

6  sioners  of  the  several  counties.    No  such  description  shall  be  filed  imtil 

7  the  clerk  of  the  department  certifies  thereon  that  it  has  been  prepared 

8  in  conformity  with  the  rules  of  tlie  department. 

Embankments,  Fences,  etc. 

1  Section  90.     After  a  railroad  corporation  has  taken  land  in  the  man-  Fencing. 

2  ner  hereinbefore  authorized,  it  shall,  before  constructing  the  railroad,  g._s.'63,  §45.' 

3  and,  upon  request  of  the  ovraer  or  occupant,  fence  it.  p*s.'n2,'§io2. 

K.  L.  Ill,  §  106.  1906,  403,  II,  §§  90,  258. 

1  Section  91.     At  the  time  of  awarding  damages  to  land  owners  under  Construction, 

2  chapter  seventy-nine,  the  county  commissioners  shall  in  addition  thereto  bankmentsmay 

3  order  the  corporation  to  construct  and  maintain  such  embankments,  cul-  1S4X  i2lf' 

4  verts,  walls,  fences  or  other  structures  as  they  judge  reasonable  for  the  g.  s'.es,  §40. 

5  security  and  benefit  of  such  o\\Tiers,  and  shall  prescribe  the  time  and  p^s^'f/l'^^ns 

6  manner  of  making  or  repairing  them,  and  it  shall  not  be  competent  for  P-.J^o^"' 

7  a  jury  to  reverse  such  order. 

1906,  463,  II,  §§  101,  258.  141  .Mass.  407.  154  Mass.  314. 

1  Section  92.     If  the  corporation  neglects  to  comply  with  such  order.  Enforcement 

2  the  supreme  judicial  court,  upon  application  of  the  land  owner  interested  184T,  ip.  §  2. 

3  in  its  execution,  or  his  assigns,  shall  have  jurisdiction  in  equity  to  enforce  1874, 37'2:§^s2. 

4  the  specific  performance  thereof.    Or  if  the  corporation,  for  more  than  r.l.iii',|ii9; 


1722 


RAILROADS. 


[Ch.\p.  160. 


1906,  463. 
II,  H  102,  258. 
6Cush.420. 
1  Gray.  614. 


forty-eight  hours  after  wTitten  notice  of  such  neglect,  given  to  the  presi-  5 

dent  or  superintendent,  fails  to  begin  the  work  required  to  be  done,  or  6 

thereafter  unreasonably  delays  to  complete  it,  the  person  so  interested  7 

may  recover  in  tort  double  the  damages  sustained  by  him  by  reason  of  8 

the  neglect.  9 


Fences. 
1846,  271, 
§§  3.  4. 
G.  S.  63, 
S§  43.  44. 
1874.  372.  §  St. 
1879.205.  §  1 
P.  S.  112.  §115. 
1882,  162. 
R.  L.  Ill, 
§  120. 
1906.  463. 
II.  §§  103,  258 
12Cu8h.  605. 
1  Allen.  16. 
98  Mass.  560, 
107  Mass.  411. 
115  Mass.  4.5.S, 
564 

121  Mass.  llx. 
132  Mass.  28. 
134  Mass.  4. 
157  Mass.  297. 
181  Mass.  322. 
194  Mass.  35. 
207  Mass.  12. 
210  Mass.  170. 


Cost  of  fencing. 

how  recovered 

from  person 

liable. 

1879.  205.  §  2. 

P.  S.  112,  §  116. 

R.  L.  Ill, 

§121. 

1906.  463, 

II.  5§  lOt.  258. 

132  Mass.  24. 

228  Mass.  274. 


Separation  of 
grade  crossings 
by  agreement. 
1881.  120. 
P.  S.  112,  §117. 
R.  L.  Ill, 
§  122, 
1906,  463, 
II,  §§  105,  258. 


Section  93.  Every  railroad  corporation  shall  erect  and  maintain 
suitable  fences,  with  convenient  bars,  gates  or  openings  therein,  upon 
both  sides  of  the  entire  length  of  its  railroad,  except  at  the  crossings  of  a 
public  way  or  in  places  where  the  convenient  use  of  the  railroad  would 
be  thereby  obstructed,  and  except  at  places  where,  and  so  long  as,  it  is 
specially  exempted  from  so  doing  by  the  department.  Such  an  exemp- 
tion granted  prior  to  August  first,  eighteen  hundred  and  eighty-two  7 
shall  not  be  revoked  except  upon  new  proceedings  had  under  this  section,  S 
notice  of  which  shall  be  given  to  the  corporation,  and  published  once  9 
in  each  of  three  successi\'e  weeks  in  a  newspaper  published  in  each  county  10 
where  the  land  lies.  The  corporation  shall  also  construct  and  maintain  11 
sufficient  barriers,  where  necessary  and  practicable  so  to  do,  to  prevent  the  12 
entrance  of  cattle  upon  the  railroad.  A  corporation  which  unreason-  13 
ably  neglects  to  comply  with  this  and  the  following  section  shall,  for  14 
every  such  neglect,  forfeit  not  more  than  two  hundred  dollars  for  every  15 
month  during  which  the  neglect  continues,  and  upon  such  neglect  the  16 
supreme  judicial  court  may  restrain  and  prohibit  it  from  crossing  a  pub-  17 
lie  way,  or  from  using  any  land  until  said  sections  are  complied  with.       18 

Section  94.  If  a  person  other  than  a  railroad  corporation  is  required  1 
by  law  or  contract  to  erect  or  maintain  fences  along  a  part  of  the  line  of  2 
the  railroad,  the  corporation  shall  erect  such  fences  or  keep  them  in  3 
repair  as  provided  in  the  preceding  section,  and  may  recover  in  contract  4 
the  reasonable  cost  thereof  from  such  person.  If  he  is  an  owner  of  land  5 
adjoining  such  line,  the  corporation  shall  also  have  a  lien  upon  said  land  6 
for  labor  performed  and  furnished  and  all  materials  furnished  and  used  7 
by  it  in  erecting  and  repairing  such  fences  upon  such  land,  and  for  the  8 
costs  which  may  arise  in  enforcing  it;  and  it  shall  be  enforced  in  the  9 
manner  provided  for  enforcing  liens  for  labor  in  chapter  two  hundred  10 
and  fifty-four.  1 1 

Crossings. 

Section  95.     If  two  or  more  railroad  corporations  whose  tracks  cross  1 

each  other  at  the  same  level  agree  to  separate  the  grades,  they  may  apply  2 

to  the  department  which  shall  thereupon  determine  when,  in  what  man-  3 

ner  and  by  which  corporation  said  work  and  each  portion  thereof  shall  4 

be  done,  and  shall  apportion  all  charges  and  expenses  caused  by  making  5 

such  alterations  and  all  future  charges  for  keeping  the  necessary  struc-  6 

tures  connected  therewith  in  repair,  among  said  corporations.    For  said  7 

purposes,  the  corporations  may,  under  the  direction  of  the  department,  S 

make  all  necessary  changes  in  the  location,  grade  and  construction  of  9 

said  railroads,  and,  so  far  as  necessary,  may  take  additional  land  therefor  10 

by  eminent  domain  under  chapter  seventy-nine  and  may  raise,  lower  or  11 

otherwise  change  any  and  all  pubhc  ways;   and  in  the  exercise  of  said  12 

powers  said  corporations,  and  any  person  who  sustains  damage  thereby,  13 

shall  have  all  the  rights,  privileges  and  remedies,  and  be  subject  to  all  14 

the  duties,  habihties  and  restrictions  p^o^^ded  by  law  in  the  case  of  land  15 

taken  by  railroad  corporations.  16 


Chap.  160.]  railroads.  1723 

1  Section  96.     A  railroad  shall  not  be  constructed  across  another  rail-  Crossings  of 

.   .  .  .  p      1         1  one  railroad 

2  road  at  the  same  le\'el  without  the  written  consent  of  the  department,  "i""  another, 

3  nor  across  navigable  or  tide  waters  without  the  written  consent  of  the  EaWe  waters. 

4  department  of  public  works,  and  in  such  manner  as  said  departments,  isa'i 3^.'    '^' 

5  respectively,  shall  prescribe,  nor  across  any  portion  of  the  deep  channel  1I74;  37 2]  |  ss. 

6  of  Boston  harbor  below  the  bridges  existing  on  March  thirtieth,  eighteen  p*s''iYI  §  as 

7  hundred  and  eighty-one,  without  special  legislative  authority.     Any  lit-  Fiii^'^' 

8  toral  proprietor  whose  access  to  the  sea  is  obstructed  or  interrupted  by  }?06, 403. 

9  the  location  and  construction,  after  said  date,  of  any  railroad  across  lo'ie,  288." 

10  tide  water,  otherwise  than  by  a  bridge  with  a  suitable  draw,  may  recover  igii'.  350, 

11  of  the  corporation  whose  railroad  is  so  located  all  damages,  caused  by  ^  ^" 

12  such  location  and  construction,  under  chapter  seventy-nine,  but  tliis  pro- 

13  vision  as  to  damages  shall  not  apply  to  any  railroad  constructed  under 

14  chapter  two  hundred  and  fifty-two  of  the  acts  of  eighteen  hundred  and 
1.5  eighty.     Associates  for  the  purpose  of  constructing  a  railroad  under  sec- 

16  tion  thirteen,  or  a  corporation  which  proceeds  to  construct  its  railroad  or 

17  branch  or  extension  thereof,  shall  not  take  proceedings  which  involve  a 

18  nevf  crossing  of  one  railroad  by  another  at  the  same  level,  unless  such 

19  crossing  is  first  approved  in  wTiting  by  the  department;  and  every  pre- 

20  liminary  approval  of  a  plan  for  such  crossing  shall  be  subject  to  revision 

21  by  the  department. 


1  Section  97.     A  railroad  laid  out  across  a  public  way  shall  be  so  con-  Railroad 

2  structed  as  not  to  obstruct  the  same;   and,  unless  the  county  commis-  wgWy  not 

3  sioners  and  the  department  authorize  a  crossing  at  the  same  level  as  Jhe°same'^' 

4  provided  in  section  one  hundred  and  two,  it  shall  be  constructed  so  as  to  f^^:  In^u' 

5  pass  either  over  or  under  the  way,  as  prescribed  in  the  following  section,  g  s^ss 

6  and  conformably  to  any  decree  which  may  be  made  by  the  county  com-  is74,'372.  §  se. 

7  missioners  under  section  one  hundred.  i87o,  73. 

p.  S.  112.  §119,  14  Gray,  379.  195  Mass.  299. 

R.  L.  111.  §  124.  14  Allen,  444.  202  Mass.  394. 

1906,  463,  II,  5§  107.  258.  114  Mass.  350.  220  Mass.  569. 

1  Section  98.     If  the  railroad  is  constructed  to  pass  over  the  way,  a  space  under 

2  sufficient  space  shall  be  left  under  the  railroad  conveniently  to  accom-  {^"el"  '''^^"" 

3  modate  the  travel  on  the  way.     If  the  railroad  is  constructed  to  pass  g*|'63.V47' 

4  under  the  way,  the  railroad  corporation  shall  build  such  bridges,  with  p*g*'n^?'|  *20 

5  their  abutments  and  suitable  approaches  thereto,  as  will  accommodate  R.  l.  iii, 

6  the  travel  upon  the  way;   but  no  bridge  for  any  purpose  shall  be  con-  1906,463. 

7  structed  over  a  railroad  at  a  height  less  than  eighteen  feet  abo\'e  the  track  130  Mass.'36i.' 

8  of  such  railroad,  except  with  the  written  consent  of  the  department.  '''"  "^''""*  '■*^' 

1  Section  99.     Cities  and  towns  may  make  agreements  with  railroad  Agreements 

2  corporations  in  regard  to  the  kind  of  material,  form  of  construction  and  towns  as  to 

3  payment  of  the  cost  of  the  wearing  surface  of  bridges  and  approaches  race" o^  bJIdges 

4  over  or  under  a  public  way,  wherever  the  railroad  company  is  required  i9i4'^^2oa"'''"' 

5  by  law  to  maintain  such  surface. 

1  Section  100.     A  railroad  corporation  may  raise  or  lower  a  public  way  Highway  may 

2  to  permit  its  railroad  to  pass  over  or  under  the  same;    but  before  pro-  foweTeiflincier 

3  ceeding  to  cross  or  to  alter  or  excavate  for  the  purpose  of  crossing  the  eiunty°com- 

4  way,  it  shall  obtain  from  the  county  commissioners  a  decree  prescribing  Jg'lj^lj^j  5 

5  what  alterations  may  be  made  in  the  way,  and  what  structures  erected  R.s,'39.§67. 

6  at  the  crossing,  and  the  manner  and  time  of  making  or  erecting  the  «  i.'s. 

7  same;  and  before  entering  upon,  excavating  or  altering  the  way,  it  shall  §'§4S,'56. 


1724 


EAILROADS. 


[Ch.\p.   lUO. 


1S74,  372. 
§§  S8.  103. 
P.  8.112. 
§§  121,  136. 
R.  L.  Ill, 
§§  126,  141. 
1906.  463.  ir 
§§  109,  US, 
258. 
QCush.  1. 


give  to  the  city  or  town  where  the  crossing  is  situated  security,  .sat-  8 

isfactory  to  the  commissioners,  that  it  will  faithfully  comply  with  the  9 

requirements  of  the  decree  to  their  acceptance,  and  will  indemnify  the  10 

city  or  town  against  all  damages  and  charges  by  reason  of  a  failure  11 

so  to  do.  12 

If,  upon  the  petition  of  the  board  of  aldermen  or  selectmen,  it  appears  13 

that  such  corporation  has  excavated  or  altered  a  pubhc  way  without  14 

obtaining  the  decree  and  gi\ang  the  security  required  by  tliis  section,  or  15 

has  neglected  for  fifteen  days  to  give  secm-ity  as  required  by  section  one  IG 

hundred  and  six,  the  supreme  judicial  court  may  enjoin  it  from  entering  17 

upon,  altering,  exca\ating  or  crossing  the  way  until  such  decree  has  been  18 

obtained  or  such  security  given.  19 


Course  of 
highway  may 
be  altered. 
1833.  187.  §  6. 
R.  S.  39,  §  70. 
1849, 169. 
G.  S.  63,  §  55. 
1874,  372,  ^  89. 
P.  S.  112,  §  122. 
R.  L.  Ill, 
§  127. 
1906,  463, 
II,  §§  110,  23S. 

1918,  257, 
J  206;  285. 

1919,  5. 

1920,  2. 


Section  101.  A  railroad  corporation  may  alter  the  course  of  a  public  1 
way  to  facilitate  the  crossing  thereof  by  its  railroad  or  to  permit  its  rail-  2 
road  to  pass  at  the  side  thereof  without  crossing,  if,  after  notice  to  the  3 
city  or  town  where  the  way  is  situated,  and  a  hearing,  the  county  com-  4 
missioners  decide  that  such  alteration  will  not  essentially  injure  the  way,  5 
and  make  a  decree  prescribing  the  time  and  manner  of  such  alteration.  6 
If  it  is  necessary  to  take  land  for  such  alteration,  the  county  commis-  7 
sioners  shall  take  the  same  by  eminent  domain  under  chapter  seventy-  8 
nine  on  behalf  of  the  county,  city  or  town  having  jurisdiction  over  the  9 
alteration  of  such  way,  and  before  entering  upon,  excavating  or  altering  10 
such  way  the  corporation  shall  give  to  such  county,  city  or  town  security  11 
satisfactory  to  the  commissioners  that  it  will  indemnify  such  county,  city  12 
or  town  for  all  damages  and  charges  which  it  is  obliged  to  pay  by  reason  13 
of  such  taking.  14 


Crossing  public 
way  at  a  level. 
1864,  152, 
§§  2,  5,  6. 
1865,239,  §  1. 
1874,  372,  I  90. 
1876,  73. 
P.  S.  112.  §  123. 
R.  L.  HI, 
S  128. 
1906.  463. 
II,  §§  HI.  258. 


Section  102.  If  a  railroad  is  laid  out  across  a  public  way,  the  county 
commissioners,  upon  the  application  of  the  railroad  corporation,  or  of 
the  board  of  aldermen  of  the  city  or  selectmen  of  the  town  where  the 
crossing  is  situated,  after  notice  to  all  persons  interested  and  a  hearing, 
may  adjudge  that  public  necessity  requires  the  crossing  at  the  same 
level,  and  may,  if  the  department  also  consents  in  writing  to  such  cros,s- 
ing  at  the  same  le\'el,  make  a  decree  specially  to  authorize  and  require 
the  corporation  so  to  construct  its  railroad,  in  such  manner  as  shall  be 
prescribed  in  the  decree,  and  the  commissioners  may  modify  such  decree 
or  may  revoke  it  at  any  time  before  the  construction  of  the  railroad  at 
such  crossing. 


9 

10 
11 


Rails  to  be 
protected  at 
highway 
crossing, 
1857,  287,  5  6. 
G.  S.  63.  §  60. 
1874,372,  §91. 
P.  S.  112,  §124. 
R.  L.  Ill, 
§  129. 
1906.  463, 
II.  §§  112,  233. 
140  Mass.  84. 
147  Mass.  455, 
505. 


Section  103.     A  railroad  corporation  whose  railroad  is  crossed  by  a  1 

public  way  at  the  same  level  shall,  at  its  own  expense,  so  guard  or  pro-  2 

tect  its  rails  by  plank,  timber  or  otherwise  as  to  secure  a  safe  and  easy  3 

passage  across  its  railroad;    and  if,  in  the  opinion  of  the  county  com-  4 

missioners,  any  subsequent  alteration  of  the  highway  or  other  way  or  5 

additional  safeguards  are  required  at  the  crossing,  they  may  make  a  G 

decree  ordering  the  corporation  to  establish  the  same  as  provided  in  7 

section  one  hundred.  8 

164  Mass.  393.  211  Mass.  573.  217  Mass.  312.  229  Mass.  532. 


When  highway 

may  be  laid 

out  across  a 

railroad. 

R.  S.  39,  §  69. 

1857,  287, 

§§  1-5. 


Section  104.  A  public  way  may  be  laid  out  across  a  railroad  pre- 
viously constructed,  if  the  county  commissioners  adjudge  that  public 
necessity  and  convenience  so  require;  and  in  such  case,  after  notice  to 
the  railroad  corporation  and  a  hearing  of  all  parties  interested,  they  may 


93. 

6. 


Chap.  160.]  r.ulroads.  1725 

5  thus  lay  out  or  authorize  a  city  or  town,  upon  petition  of  the  board  of  Psfy-lg 

6  aldermen  or  selectmen  thereof,  to  lay  out  a  way  across  a  railroad,  in  is74, 372,  §  92. 

7  such  manner  as  not  to  injure  or  obstruct  the  railroad,  and  otherwise  in  p.  s.'iii.  §125. 

8  conformity  with  sections  ninety-seven  and  ninety-eight,  but  they  shall  §  iso.     ' 

9  not  permit  it  to  cross  at  a  level  with  the  railroad  unless  public  necessity  ii.°§'§'n3,  2S8. 

10  so  requires,  and  the  department  consents  thereto  in  writing,  in  which  }  Vj^en^soli^' 

1 1  case  the  county  commissioners  may  give  special  authority  for  such  cross-  i4'^jfass^i7 

12  ing  as  pro\ided  in  section  one  hundred  and  two. 

159  Maas.  283.  173  Mass.  12. 

1  Section  105.     A  railroad  corporation  may,  with  the  consent  of  a  Alterations 

2  canal  corporation,  alter  the  course  of  a  canal  or  of  a  feeder  to  a  canal,  i83?,"226, 

3  which  interferes  with  the  convenient  location  of  its  railroad.     If  it  is  S^  s!  6.3,  §  56. 

4  necessary  to  take  land  for  such  alteration,  the  railroad  corporation  may  ^^s'iy?'^i 

5  take  the  same  under  chapter  seventy-nine  and  shall  immediately  convey  i^.l.  iii.§i3i 

^  ,  ,  ,  .  */  ^      190(1,  463, 

6  the  property  so  taken  to  the  canal  corporation.  ii.  §§  m.  258. 

1918,  2.17.  I  207;  285.  1919,  5.  1920,  2. 

1  Section  106.     If,  upon  application  to  the  county  commissioners  by  obstructions 

2  the  board  of  aldermen  or  selectmen,  and  after  notice  to  the  corporation  at'cro'a^rngs. 

3  wliich  owns  or  operates  a  railroad,  and  a  hearing,  it  appears  that  the  g^I'63°§49" 

4  railroad  so  crosses  a  public  way  as  to  obstruct  it,  contrary  to  section  ^^^-^lo'^i^j 

5  ninety-seven,  or  to  a  decree  made  under  section  one  hundred,  or  that  R.  l.  ni, 

6  the  corporation  refuses  or  neglects  to  keep  a  bridge  or  other  structure  i966"463, 

7  required  or  necessary  at  such  crossing  in  proper  repair,  the  county  com-  i9'5Ma68.'299.' 

8  missioners  may  make  a  decree  prescribing  what  repairs  shall  be  made  by  220  ulll'.  sag! 

9  the  corporation  at  the  crossing,  and  the  time  within  which  they  shall  be 

10  made,  and  shall  make  a  decree  ordering  the  corporation  to  pay  the  costs 

11  of  the  application.     They  may  further  order  the  corporation  to  give  se- 

12  curity,  as  provided  in  section  one  hundred,  for  the  faithful  performance 

13  of  the  requirements  of  the  decree  and  for  the  indemnity  of  the  city  or 

14  town  upon  a  failure  in  such  performance. 

1  Section  107.     Everv  railroad  corporation  shall,  except  as  provided  P^g'''''^  °f 

/»^*i  •!•  i»i  111    tJ^^"'?*^^.  etc. 

2  in  sections  sixtj'-nve  to  eighty-two,  inclusive,  of  chapter  one  hundred  R •■"'.■  39,  §72. 

3  and  fifty-nine,  at  its  own  expense,  construct,  maintain  and  keep  in  repair  is.^iiss. ' 

4  all  bridges,  with  their  approaches  and  abutments,  which  it  is  authorized  g.'s.'bs.  ' 

5  or  recjuired  to  construct  o\'er  or  under  a  canal  or  public  way;  and  a  city  i872!'262,t%. 

6  or  town  may  recover  of  the  railroad  corporation  W'hose  railroad  crosses  a  ^^^'ui'iiis 

7  public  way  therein  all  damages,  charges  and  expenses  incurred  by  such  Pjjj^^^' 

8  city  or  town  by  reason  of  the  neglect  or  refusal  of  the  corporation  to  erect  jj^'lH'',^,''^  ,,„ 

9  or  keep  in  repair  all  structures  required  or  necessary  at  such  crossing;  but  1907,315.'" 

10  if,  after  the  laying  out  and  building  of  a  railroad,  the  county  commissioners  12  AUen,  254. 

11  authorize  a  public  way  to  be  laid  out  across  the  raUroad,  all  expenses  of  i38MiaB3*454. 

12  and  incident  to  constructing  and  maintaining  the  way  at  such  crossing  i39  Mass.  525. 

13  shall  be  borne  by  the  county,  city,  town  or  other  owner  of  the  same, 

14  unless  otherwise  determined  by  an  award  of  a  commission,  under  pro- 

15  ceedings  in  accordance  with  sections  fifty -nine  to  sixty-four,  inclusive,  of 

16  chapter  one  hundred  and  fifty-nine. 

1  Section  108.     County  commissioners  shall  have  original  jurisdiction  County  com- 

2  of  questions  relative  to  obstructions  to  public  ways  caused  by  the  con-  "aTe^uns-''" 

3  struction  or  operation  of  railroads.  iS49, 222,  §  4.  g.  s.  63,  §  62.  obstmcUons. 

1874,  372.  §  102.  1906,  463,  11,  §§  117,  258.  141  Mass.  17. 

P.  S.  112,  §  135.  4Cush.  03.  1.55  Mass.  16. 

R.  L.  Ill,  §  140.  2  Gray,  54.  195  Mass.  299. 


1726 


RAILROADS. 


[Chap.  160. 


Severance  of 

grivate  land 
y  crossing. 
1857,  213, 
l§l-4. 
G.  S,  63. 
§§  64-66. 
1874,  372, 
5105. 

P.  S.  112,  §  138. 
1897,  264. 
R.  L.  Ill, 
§143. 
1906,  463, 
II,  §§  120, 
103  Mass.  1. 
135  Mass.  107. 


,  258. 


Access  to  land 
cut  off  by 
railroad. 
1892,  171. 
R.  L.  Ill, 
1144. 
1906,  463, 
II,  §§  121,  258. 
162  Mass.  81. 
165  Mass.  514. 


Appeal  from 
county  com- 
missioners. 
1882,  135. 
§§  1-3. 
R.  L.  Ill, 
§145. 
1906,  463. 
II,  §§  122,  2.58. 
141  Mass.  20S. 


Section  109.     If  a  railroad  lawfully  laid  out  through  land  without  the  1 

consent  of  the  owner  thereof  separates  a  portion  of  such  land  from  an-  2 

other  or  from  a  public  way,  and  the  owner,  having  a  right  to  cross  the  3 

railroad,  cannot  agree  with  the  corporation  as  to  the  place  or  manner  in  4 

which  he  shall  cross,  or  if  a  crossing  is  inconvenient,  either  party,  in  a  5 

case  which  does  not  involve  the  abolition  of  a  crossing  at  grade,  may  apply  6 

to  the  county  commissioners,  who,  after  taking  a  recognizance  from  the  7 

applicant  to  the  county,  with  sureties  to  their  satisfaction,  for  the  pay-  8 

ment  of  costs  and  expenses  according  to  their  order,  and  after  notice  to  9 

the  other  party  and  a  hearing,  may  make  an  order  relative  to  such  cross-  10 

ing  and  to  the  costs  of  the  application;  but  they  shall  not  order  the  cor-  11 

poration  to  construct  or  maintain  a  crossing  without  its  consent,  unless  12 

it  is  liable  by  law  or  by  agreement  to  construct  a  crossing  for  the  owner  13 

of  the  land,  or  is  the  applicant.  14 

Section  110.     If  by  the  laying  out  of  a  railroad,  or  the  widening  1 

thereof,  a  person  is  cut  off  from  access  to  land  owned  by  him,  and  has  2 

neither  received  compensation  nor  made  an  agreement  Mith  the  corpora-  3 

tion  relative  thereto,  the  department,  after  notice  to  the  parties  and  a  4 

hearing,  may  order  a  crossing  to  be  made  and  maintained  at  the  expense  5 

of  the  railroad  corporation,  specifying  definitely  the  character  thereof  6 

and  when  it  may  be  used.    If  the  railroad  corporation  neglects  for  ninety  7 

days  after  the  date  of  such  order  to  comply  therewith,  it  shall  forfeit  8 

five  dollars  for  every  day  thereafter  during  which  such  neglect  continues,  9 

which  shall  be  recovered  by  the  person  aggrieved.    The  amount  recovered  10 

shall  be  equally  divided  between  the  plaintiff  and  the  county  where  the  11 

crossing  was  ordered  to  be  maintained.  12 

Section  111.  A  party  aggrieved  by  a  decision  or  order  of  the  county  1 
commissioners  in  any  matter  or  proceeding  arising  under  section  one  2 
hundred  and  nine,  or  section  fifty-nine  of  chapter  one  hundred  and  fifty-  3 
nine,  or  by  their  unreasonable  refusal  or  neglect  to  announce  a  decision  4 
in  any  such  matter  or  proceeding  for  sixty  days  after  the  first  day  fixed  5 
for  a  hearing  thereon,  may  appeal  to  the  department  by  filing  a  notice  6 
of  appeal  with  the  county  commissioners  within  ten  days  after  the  de-  7 
cision  or  order  appealed  from,  or  in  case  of  a  refusal  or  neglect  to  announce  8 
a  decision,  within  ten  days  after  the  expiration  of  sixty  days  from  the  first  9 
day  fixed  for  a  hearing  thereon.  The  proceedings  before  the  county  10 
commissioners  in  which  the  appeal  is  taken  shall  thereupon  be  stayed.       11 


Appeal  from 
proceedings 
thereon. 
1882,  135, 
§§  4,  5. 
R.  L. Ill, 
§  146. 
1906,  463, 
II,  §1  123,  2.5: 


Section  112.     The  appellant,   to  perfect  the  appeal,   shall,   within  1 

twenty  days  after  filing  the  notice  thereof,  file  with  the  clerk  of  the  2 

department  a  petition  stating  the  reasons  for  the  appeal,  and  shall,  3 

within  ten  days  after  filing  the  petition,  cause  a  certified  copy  thereof  4 

to   be   served   upon   the   county  commissioners.     An  appeal  may  be  5 

waived  at  any  time  before  a  hearing  thereon  by  wxitten  agreement  of  the  6 

parties,  filed  with  the  county  commissioners  and  the  department.     If  7 

the  appellant  fails  to  perfect  the  appeal,  or  if  the  appeal  is  waived,  the  8 

matter  may  proceed  before  the  county  commissioners  as  if  no  appeal  9 

had  been  taken.  10 


Hearing  of  Section  113.     The  department  shall  hear  the  appeal  in  the  county  1 

appeal ;  powers  ,,                                         ^                     ..              ..               .  ^^    .                             ^-^ 

of  department,  where  it  IS  takcu,  unless  the  parties  m  writing  otherwise  agree.     Upon  2 

§§6,7.  '  such  appeal,  the  department  shall  have  the  same  powers  and  perform  3 


1875.  110. 
187S,  215,  §  4, 


Chap.  160.]  railro.^ds.  1727 

4  the  same  duties  as  county  commissioners  in, like  matters  and  proceed-  filj'^'' 

5  ings,  and  shall  be  governed  by  the  provisions  of  law  relative  to  hearings  jj°55Y24  '-s 

6  and  determinations  by,  and  decisions  and  orders  of,  the  county  com- 

7  missioners  in  such  matters  and  proceedings. 

1  Section  1 14.     No  right  of  way  across  any  railroad  track  or  location  RiEht  of 

2  which  is  in  use  for  railroad  purposes  shall  be  acquired  by  prescription.  acqui'r«i  b°v 

3  This  section  shall  not  apply  to  rights  of  way  which  existed  on  June  fifth,  YsWST"' 

4  eighteen  hundred  and  ninety-two.      r.  l.  iii,  §  i4s.      i9oo,  463,  ii,  §§  125, 258. 

163  Mass.  330.  176  Mass.  359.  210  Mass.  243.  213  Mass.  91. 

BRANCHES   AND   EXTENSIONS. 

1  Section  115.     A  railroad  corporation,  after  having  finished  the  con-  Branches  and 

2  struction  of  its  railroad  and  put  it  in  operation,  may  build  a  branch  or  isv^ssif 

3  extension  thereof  in  accordance  with  this  chapter,  if  an  amount  of  ad-  ||  si^sa;  ^''' 

4  ditional  capital  stock,  applicable  solely  to  the  construction  of  such 

5  branch  or  extension,  has  been  subscribed,  and  a  certificate  of  the  de-  f;f,J,'^ 

6  partment  that  public  necessity  and  convenience  require  the  construction  is82, 265, 

7  of  the  branch  or  extension  has  been  obtained,  and  a  certificate  of  the  r.  l.  iii, 

8  clerk  of  the  department  has  been  filed  according  to  section  seventy-six;  ifl06,'463, 

9  and  it  may  build  such  branch  or  extension  without  additional  capital  uMlliis^'si^s*.' 

10  stock,  if  its  indebtedness  is  not  thereby  increased;  but  this  section  shall 

11  not  invalidate  a  lease  or  contract  between  railroad  corporations  made 

12  pursuant  to  law.    Upon  the  filing  of  such  certificate,  fifty  dollars  shall  be 

13  paid  to  the  state  secretary.    If  the  construction  of  such  branch  or  exten- 

14  sion  is  not  begun,  and  ten  per  cent  of  the  additional  capital  stock  is  not 
lr>  expended  thereon  within  two  years  after  the  date  of  the  certificate  re- 

16  quired  by  section  seventy-six  and  the  branch  or  extension  completed 

17  and  put  in  operation  within  four  years  after  said  date,  the  power  of  the 

15  railroad  corporation  to  construct  the  same  shall  cease. 

1  Section  116.     A  railroad  corporation,  upon  the  application  of  any  Switch 

2  shipper  tendering  freight  for  transportation,  shall  construct,  maintain  igo^^sss"!  s. 

3  and  operate  upon  reasonable  terms  switch  connections  with  a  lateral 

4  line  of  railroad  or  pri^■ate  side  track  owned,  operated  or  controlled  by 

5  such  shipper  and  shall,  upon  the  application  of  any  shipper,  provide 

6  upon  its  own  property  a  side  track  and  switch  connection  with  its  line 

7  of  railroad,  whenever  such  side  track  and  switch  connection  are  reason- 

8  ably  practicable,  can  be  put  in  with  safety,  and  the  business  therefor  is 

9  sufficient  to  justify  the  same. 

1  Section  117.     If  any  railroad  corporation  fails  to  install  or  oper-  Switch  connec- 

2  ate  any  such  switch  connection  with  a  lateral  line  of  railroad  or  any  such  by"de'partment. 

3  side  track  and  switch  connection  as  aforesaid,  after  written  application  ^^^'  ^®^'  ^  ** 

4  therefor  has  been  made  to  it,  any  person  interested  may  present  the 

5  facts  to  the  department  by  written  petition,  and  the  department  shall 

6  investigate  the  matters  stated  in  such  petition,  and  give  such  hearing 

7  thereon  as  it  may  deem  necessary  or  proper.     If  the  department  deems 

8  it  safe  and  practicable  to  have  a  connection,  substantially  as  prayed  for, 

9  established  or  maintained,  and  that  the  business  to  be  done  thereon  jus- 

10  tifies  the  construction  and  maintenance  thereof,  it  shall  make  an  order 

11  directing  the  construction  and  establishment  thereof,  specifying  the  rea- 

12  sonable  compensation  to  be  paid  for  the  construction,  establishment  and 


1728 


RAILR0.U3S. 


[CH-^P.    160. 


maintenance  thereof,  and  may  in  like  manner  upon  the  application  of  the  13 
railroad  corporation  order  the  discontinuance  of  such  switch  connection.  14 


OPENING  RAILR0.U3   FOR   USE. 

be°tpen'^*°or  SECTION  US.  A  railroad  or  branch  or  extension  thereof  shall  not  be 
unui'^etc^  opened  for  public  use  until  the  department,  after  an  examination,  certi- 
isM,'223;  fies  that  all  laws  relative  to  its  construction  have  been  complied  with, 
p.  s.  112,  §  141.  and  that  it  appears  to  be  in  a  safe  condition  for  operation. 

R.  L.  111.  I  162.  1906,  463,  II,  5§  127.  25S. 


When  road  is 
opened  for 
public  use, 
map,  etc.,  to 
be  filed. 
1872,  53,  §  14; 
180,  §  3. 
1874,  372,  §  34. 
P.  S.  112.  §  142. 
R.  L.  Ill, 
5  163. 


Section  119.     When  a  railroad  or  a  branch  or  extension  thereof  is  1 

finished  and  opened  for  public  use,  the  corporation  by  which  it  was  con-  2 

structed  shall,  within  one  j^ear,  file  in  the  office  of  the  state  secretary  3 

a  map  and  profile  thereof,  with  tables  of  grade  and  curvature  and  a  4 

statement  of  the  other  characteristics  of  the  railroad,  certified  by  its  5 

president  and  engineer  in  such  form  as  the  department  may  prescribe.  6 

1906.  463.  II.  §§  128,  258, 


EQUIPMENT   AND    OPERATION. 

Draicbridges. 

Section  120.     Every   railroad   corporation   shall    provide   for   each  1 

drawbridge  upon  the  line  of  its  railroad  an  experienced  draw  tender,  who  2 

shall  have  full  control  of  the  passing  of  vessels  through  the  draw;   and  3 

the  corporation  shall  make  and  enforce  regulations  for  each  drawbridge  4 

R.  L.  uT,  §  i7o!  conformable  to  the  seven  following  sections.  woe,  463.  ii,  §§  129, 25s.  5 


Draw  tender. 

1855,  434, 

§§1,2. 

G.  S.  63,  5  73. 

1863,  131.  §  1 

1874.  372, 

§  108. 


Drawbridges 
to  be  kept 
closed,  except. 
1855,  434, 
5§  2,  3. 
G.S.  63,  §74. 
1863,  131,  §  2. 
1874,  372, 
§109. 

P.  S.  112,  §  149. 
R.L.  111,§171. 
1906,  463. 
II,  §§  130,  258. 


Section  121.     Every  such  drawbridge  shall  be  kept  closed  at  all  times,  1 

except  while  open  for  the  actual  passage  of  vessels.     The  draw  tender  2 

shall  at  all  hours  of  the  day  and  night  be  ready  to  open  the  draw ;  shall  3 

decide,  having  regard  to  the  convenient  and  secure  passage  of  engines  4 

and  trains  and  the  state  of  the  tide,  when  and  in  what  order  vessels  may  5 

pass,  allowing  no  unnecessary  detention;  and  shall  give  all  the  necessary  6 

advice  and  furnish  proper  facilities  for  such  passing.  7 


Passage  of 

vessels,  how 

regulated. 

1855,  434, 

§§3,4. 

G.  S.  63, 

§§  75,  76. 

1874,  372, 

§  110. 

P.  S.  112,  §  150. 

R.  L.  Ill, 

§172. 

1906,  463. 

II.  §§  131,  258. 

127  Mass.  7. 

146  Mass.  621. 


Section  122.  The  master  of  a  vessel  applying  to  pass  such  draw  shall  1 
give  to  the  draw  tender  a  true  report  of  his  vessel's  draught,  and  of  any-  2 
thing  projecting  below  such  vessel's  draught,  and  shall  be  governed  by  3 
him  as  to  priority  of  right  if  two  or  more  vessels  apply  at  the  same  time  4 
to  pass.  In  passing,  he  shall,  unless  otherwise  directed  by  the  draw  5 
tender,  go  to  the  right  according  to  the  tide,  if  practicable,  and  shall  so  6 
place  his  warping-lines,  anchors,  cables  and  other  rigging  anil  equip-  7 
ment  as  neither  to  interfere  with  other  vessels  nor  obstruct  or  injure  the  S 
bridge;  and  he  shall  be  allowed  a  reasonable  time  for  his  vessel  to  pass.  9 
A  railroad  train  shall  be  allowed  fifteen  minutes  to  cross  a  draw  before  10 
and  after  it  is  due  by  its  time  table,  and  any  approaching  train  shall  be  11 
allowed  a  further  reasonable  time  to  pass.  12 


Drawbridge 

signals. 

1863,  131,  I  3. 

1874,  372, 

§  111. 

P.  S.  112,  §  151. 

R.L.  Ill,  §173. 


Section  123.  Every  drawbridge  shall  be  equipped  with  conspicuous 
day  and  night  signals,  which  shall  be  displayed  at  all  times  in  such  man- 
ner as  clearly  to  indicate  to  the  engineer  of  an  approaching  train  whether 
the  draw  is  open  or  closed.  woe,  463, 11,  §§  132, 258. 


Chap.  IGO.]  railroads.  1729 

1  Section  124.     The  railroad  corporation  may  erect,  at  a  distance  of  ^^j^^''"'^^'' 

2  five  hundred  feet  from  every  drawbridge,  or  at  such  other  distance  as  is'^.  i3i,  §  4. 

3  may  on  its  application  be  prescribed  by  the  department,  and  on  each  side  §  112. 

4  thereof,  a  substantial  barrier,  so  constructed  and  connected  with  the  r.l.  in,      "' 

5  draw  by  suitable  mechanism,  that  the  draw,  when  in  position  for  the  f90B^4n3. 

6  passage  of  trains,  cannot  be  opened  or  moved  until  the  barriers  have  ''■  ^^  ^^^-  ^^*- 

7  been  closed  across  the  track  in  such  manner  as  to  be  a  warning  to  any 

8  train  which  approaches  in  either  direction. 

1  Section  125.     If  a  drawbridge  is  not  furnished  with  such  barriers,  and  ^"^i;;''"/'' 

•  A   I  PIT  T  •  1        1  .  .1      ®^®  that  draw- 

2  m  all  cases  if  by  reason  of  darkness  or  otherwise  the  barriers  or  signals  l"lgf'' jg/'^f^- 

3  connected  with  a  drawbridge  are  not  visible  from  the  engine  of  an  ap-  i874!372i 

4  proaching  passenger  train,  the  engineer  of  such  train  shall  bring  it  to  a  p.  s.  112,  §  153. 

5  full  stop  at  a  distance  of  not  less  than  three  hundred  nor  more  than  eight  fiTs/^'' 

6  hundred  feet  from  the  drawbridge,  and,  before  proceeding,  shall  positively  lifjlYw.  25s. 

7  ascertain  that  the  draw  is  properly  closed  for  the  passage  of  trains; 

8  except  that  if  the  drawbridge  is  between  two  railroad  crossings  at  grade, 

9  within  six  hundred  feet  of  each  other,  one  stop  only  shall  be  required  for 
10  such  crossings  and  drawbridge. 

1  Section  126.     A  railroad  corporation  which  neglects  to  comply  with  Penalty  on  cor- 

2  sections  one  hundred  and  twenty-three  and  one  hundred  and  twenty-  FoTn'egfect"  ° ' 

3  five  shall  forfeit  one  hundred  dollars  for  each  day  such  neglect  is  con-  isrl,' 372,' ^  ^' 

4  tinned;    and  an  engineer  or  draw  tender  who  violates  any  provision  of  p.\s!'ii2,  §  154. 

5  said  sections  or  any  regulation  established  in  conformity  therewith  for  ^i^^''^' 

6  such  drawbridge  by  the  corporation  by  which  he  is  employed  shall  forfeit  J^°9i*'''3' 

7  one  hundred  dollars  for  each  oft'ence,  which  shall  be  recovered  in  the 

8  county  where  the  offence  is  committed,  to  the  use  of  the  informer. 

1  Section  127.     Whoever  violates  any  provisions  of  the  seven  preced-  Pf-na'ty  for 

n    •  •  III  1  I  -  1  •  •iii»i''  11  Obstructing 

2  mg  sections,  shall,  unless  otherwise  therein  provided,  torreit  not  less  than  draw  tender, 

3  three  nor  more  than  fifty  dollars.     Whoever  wilfully  injures  or  defaces  isss,  434, 

4  any  such  drawbridge  or  wharf  or  pier  appurtenant  thereto,  or  any  rail-  g  a  e's, 

5  road  bridge,  wharf  or  pier,  shall  forfeit  not  less  than  three  nor  more  than  i874%?2, 

6  fifty  dollars.     Whoever,  without  the  consent  of  the  draw  tender,  opens  |.^|*n2  §  iss 

7  or  wilfully  obstructs  the  draw,  or  wilfully  makes  fast  or  moors  any  scow,  R- '- iii' 

8  raft  or  other  vessel  in  such  manner  as  to  obstruct  passage  to  or  through  joo'"'.  ■'m,  ^ 

9  said  draw,  or  wilfully  hinders  a  draw  tender  in  the  performance  of  his  127  Mass.' 7" 
10  duties,  shall  forfeit  not  less  than  fifty  nor  more  than  one  hundred  dollars. 

Stations. 

1  Section  128.     A   railroad   corporation   which   has   established   and  Abandonment 

•  II  p        f*  ^"^^of  passenger 

2  mamtained  a  passenger  station  throughout  the  year  for  five  consecutive  stations 

3  years  at  any  point  upon  its  railroad  shall  not  abandon  such  station,  1865,173! 

4  unless  it  is  relocated  under  the  following  section,  nor  substantially  dimin-  §  I'le.  '"' 

5  ish  the  accommodation  furnished  by  the  stopping  of  trains  thereat  as  r.  l.Vh,^  ^''*'' 

6  compared  with  that  furnished  at  other  stations  on  the  same  railroad,  fgoe^^os. 

7  The  supreme  judicial  court,  upon  an  information  filed  by  the  attorney  }}•  ^|  'q"'  ^^*- 

8  general  at  the  relation  of  ten  legal  voters  of  the  city  or  town  where  such  'i^-"'  229. 

9  station  is  located,  shall  have  jurisdiction  in  equity  to  restrain  the  viola- 
10  tion  of  this  section. 


1730 


RAILROADS. 


[Chap.  160, 


S^ltat'ons  Section  129.    A  railroad  corporation  may  relocate  passenger  sta- 

depot™**"        tions  and  freight  depots,  with  the  written  approval  of  the  department 
}o-'fJS •.,,,  and  of  the  board  of  aldermen  of  the  city  or  the  selectmen  of  the  town 

10/4.  .i7J,  §  117.         I  -        1  ■  1  •  *^   1 

P.  s.  112,  §  137.  where  such  stations  or  depots  are  situated.  R.  l.  hi,  §  179. 

1906.  46.3,  II,  §§  138,  258.  158  Mass.  104. 

137  Mass.  45.  Op.  A.  G,  (1920)  229. 


to^be Indicated       SECTION  130.     Every  railroad  corporation  shall  indicate  to  its  passen-  1 

i's79^i'o6          S^rs  the  name  of  each  way  station  by  placing  at  or  near  the  station  a  2 

R  i'  Vn  ^  ''*■  P™P^^  ^^^  conspicuous  sign  or  signs,  and  shall  forfeit  fifty  dollars  for  3 

§  ISO.     '         each  violation  of  this  section.                       i906, 463,  ii,  §§  139, 258.  4 


Compensation 
for  joint 
occupation. 
1893,  142. 
R.  L.  Ill, 
§181. 
1906.  463. 
II,  §§  140,  2,58. 
232  Mass.  3oS. 


Section  131.  If  one  railroad  corporation  occupies  or  uses,  or  has  a  1 
right  to  occupy,  enter  upon  and  use,  a  station,  railroad  or  grounds  of  2 
another,  or  any  portion  thereof,  the  department,  upon  petition  of  either  3 
party,  and  after  notice  to  the  other,  and  a  hearing,  shall  determine  the  4 
compensation  to  be  paid  for  such  occupancy  and  use.  Its  award  shall  5 
be  binding  upon  the  parties  thereto  for  five  years,  and  thereafter  until  6 
it  is  revised  or  altered  by  the  department,  and  upon  the  written  request  7 
of  a  party  affected  thereby,  filed  within  thirty  days  after  the  rendering  8 
thereof,  the  award  shall  be  filed  in  the  supreme  judicial  court  which  shall  9 
have  jurisdiction  to  revise  the  same  as  if  the  award  had  been  made  by  a  10 
commission  appointed  by  said  court.  11 


Switches,  Bridge  Guards,  etc. 

switches.  Section  132.     Every  switch  laid  in  a  railroad  track  used  by  passen-  1 

1874'  372  S^^  o'"  mixed  trains  shall  be  a  safety  switch  of  a  type  approved  in  writing  2 

|,i^^-         ,g  by  the  department.     For  each  switch  laid  in  violation  of  this  section,  3 

r'  l  111',  §  1S2:  the  railroad  corporation  shall  forfeit  two  hundred  dollars,  and  the  further  4 

II,  §§  141, 258.  sum  of  five  dollars  for  each  day  such  switch  is  maintained.  5 


Blocked 

switches. 

1886,  120. 

1894,41. 

R.  L.  Ill, 

§  183. 

1906,463, 

II,  §§  142,  258. 

158  Mass.  261. 


Section  133.  The  frogs,  switches  and  guard  rails,  except  guard  rails 
on  bridges,  which  are  in  or  connected  with  the  railroad  tracks  operated 
or  used  by  any  railroad  corporation  shall  be  kept  so  blocked  by  some 
method  approved  by  the  department  as  to  prevent  employees  from  being 
caught  therein.  A  railroad  corporation  which  violates  this  section  shall 
be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  one  hundred 
dollars. 


Bridge  guards. 
1^869,  308, 
§§2,3. 
1870,  276. 
1874,  226; 
372,  §  119. 
1881,  68. 
P.  S.  112.  §  160, 
R.  I>.  Ill, 
§  184. 
1906,  463, 


Section  134.     Every  railroad  corporation,  at  every  bridge  or  other  1 

structure,  any  portion  of  which  crosses  the  railroad  above  the  track,  2 

shall  erect  and  maintain,  in  a  manner  prescribed  by  the  department,  3 

suitable  bridge  guards,  of  a  type  approved  by  the  department,  except  at  4 

places  where,  and  so  long  as,  it  is  specially  exempted  from  so  doing  by  5 

the  department.    A  corporation  which  neglects  to  comply  with  this  6 

i'iISm^'^^^'  section  shall  forfeit  fifty  dollars  for  each  month's  neglect.     Whoever  7 

wilfully  destroys  or  breaks  any  such  bridge  guard  shall  be  punished  by  8 

a  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not  9 

more  than  one  month.  10 


175  Mass.  150. 


Stopping  of 

trains  at  grade 
crossings. 
1.S65,  452,§  1. 
1859,  39; 
126,  §  1. 


Signals,  etc.,  at  Crossings. 

Section  135.     If  two  railroads  cross  each  other  at  the  same  level,  1 

the  engineer  of  every  freight  train  and,  if  both  railroads  are  used  for  2 

passenger  traffic,  of  every  passenger  train,  upon  approaching  such  cross-  3 


Cn-iP.    160.]  RAILROADS.  1731 

4  ing,  shall  stop  his  engine  within  five  hundred  feet  therefrom,  and  shall  ?.f3*'g4 

5  not  resume  his  course  until  signalled  so  to  do,  when  he  shall  pass  slowly  isp.'sis. 

6  over  the  crossing;  but  one  stop  shall  be  sufficient  for  all  such  crossings  §  121. 

7  within  six  hundred  feet  of  each  other  upon  the  same  railroad.     Every  r.  l.  in, 

8  engineer  who  fails  so  to  stop  his  engine  shall  forfeit  one  hundred  dollars;  i906^'463, 

9  and  the  corporation  on  whose  railroad  the  offence  is  committed  shall  ''■  ^^  ^**'  ^^*' 
10  forfeit  the  further  amount  of  three  hundred  dollars. 

1  Section  136.     The  department  shall  make  general  regulations  for  all  Department 

n  ,  .  •    1  1       •  (»  1  •       1  .  .      ™^y  prescribe 

2  such  crossmgs  or  special  regulations  for  such  particular  crossing  as  it  rules  for 

3  may  designate,  and  in  such  detail  as  it  may  consider  expedient;  and  the  1874,372, 

4  supreme  judicial  court  may  issue  any  processes  necessary  to  secure  the  i8si"i43. 

5  enforcement  of  such  regulations,  or,  upon  the  petition  of  the  department,  r. i.  lu,^  ^^^' 

6  may  enjoin  the  running  of  trains  on  a  railroad  upon  which  any  regulation  f906^'4R3, 

7  relative  to  such  crossing  is  not  exactly  observed.    The  approval  of  the  ^^'  ^^  ^*^'  ^^^■ 

8  department  shall  be  required  for  a  system  of  signals  to  be  established  and 

9  maintained  in  concert  by  corporations  operating  railroads  which  cross 

10  each  other;   but  no  such  regulation  or  system  of  signals  shall  exempt  a 

11  railroad  upon  or  across  which  passenger  trains  are  run  from  the  require- 

12  ments  of  the  preceding  section,  unless  a  system  of  interlocking  or  auto- 

13  matic  signals,  approved  in  WT-iting  by  the  department,  is  adopted  by 

14  both  corporations. 

1  Section  137.     The  department  may,  on  the  application  of  a  railroad  interlocking 

2  corporation  whose  railroad  crosses  another  railroad  at  the  same  level,  isss.  s's. 

3  after  notice  to  the  parties  and  a  hearing,  authorize  the  applicant  at  its  §  is7. 

4  own  ex-pense,  to  establish  and  maintain  a  system  of  interlocking  or  auto-  li,  §§  ud,  258. 

5  matic  signals  at  any  crossing  of  said  railroad,  and  to  erect  and  maintain 

6  the  necessary  wires,  rods,  signal  posts  and  signals,  in  such  manner  as  the 

7  department  shall  prescribe.    Such  corporation,  after  the  system  has  been 

8  established  and  approved  in  ^\Titing  by  the  department,  shall  be  exempt 

9  as  to  such  crossing  from  the  requirements  of  section  one  hundred  and 

10  thirty-fi^'c  so  long  as  the  department  continues  its  approval.    Upon  pay- 

11  ment  to  such  corporation  by  the  corporation  owning  or  operating  the 

12  other  railroad  at  such  crossing  of  so  much  of  the  cost  of  establishing  such 

13  system  of  signals  as,  upon  petition  of  the  latter  corporation  and  a  hearing, 

14  is  awarded  by  the  department,  both  railroad  corporations  shall,  as  to  that 

15  crossing,  be  exempted  from  the  requirements  of  said  section.    Until  such 

16  pajonent  the  latter  corporation  shall  semi-annually  contribute  toward 

17  the  expense  of  operating  said  signals  an  amount  equal  to  the  cost  to  it 

18  of  operating  the  signals  used  by  it  at  said  crossing  before  the  establish- 

19  ment  of  the  signals  herein  provided  for.     After  the  pajTnent  of  such 

20  award,  the  expense  of  maintaining  and  operating  such  system  of  signals 

21  shall  be  borne  by  the  two  railroad  corporations  according  to  the  propor- 

22  tions  fixed  by  the  award  for  paying  the  original  cost  of  the  signals.    So 

23  much  of  the  award  as  relates  to  the  cost  of  maintaining  and  operating 

24  said  signals  may,  at  the  request  of  either  party,  be  revised  at  the  expira- 

25  tion  of  five  years  from  the  original  award  or  from  any  revision  thereof. 

1  Section  138.     Every  railroad  corporation  shall  cause  a  bell  of  at  Beiitobemng 

2  least  thirty-five  pounds  in  weight,  and  a  steam  whistle,  to  be  placed  on  sounded. 

3  each  locomotive  engine  passing  upon  its  railroad;  and  such  bell  shall  be  r  s.'an.  §  78.' 

4  rung  or  at  least  three  separate  and  distinct  blasts  of  such  whistle  sounded  cf' s.' 03,^5  sf.' 


1732 


RAILR0.U5S. 


[Chap.  160. 


1862,  SI,  §  I. 
1874,  372,  §  123. 
P.  S.  112, 
§  163. 
1S90,  173. 
R.  L.  Ill, 
§  188. 
1906,  463, 
II,  §§  147,  258. 
2  Cush.  539. 
10Cush.5f;2. 
113  Mass.  360. 


at  the  distance  of  at  least  eighty  rods  from  the  place  where  the  railroad  5 

crosses  upon  the  same  level  any  public  way  or  traveled  place  over  which  a  6 

signboard  is  required  to  be  maintained  as  provided  in  sections  one  hun-  7 

dred  and  forty  and  one  hundred  and  forty-one;   and  such  bell  shall  be  8 

rung  or  such  whistle  sounded  continuously  or  alternately  until  the  engine  9 

has  crossed  such  way  or  traveled  place.    This  section  shall  not  affect  10 

the  authority  conferred  upon  the  department  by  the  following  section.  11 


1.53  Mass.  57. 
157  Mass.  336. 
162  Mass.  132. 
183  Mass.  393. 


186  Mass.  474. 

187  Mass.  217. 
196  Mass.  192,  554. 
200  Mass.  441. 


208  Mass.  137,  451. 
210  Mass.  179,  305. 

234  Mass.  95,  415. 

235  Mass.  510. 


Sounding  of 
whistles 
regulated. 
1885,  334. 
1891,  204. 
R.  L.  Ill, 
§  189. 
1906.  463, 
II,  §§  148,  258. 


Signboards  at 
crossings  of 
wavs. 

1835,  148,  §  4. 
R.  S.  39.  §  79. 
1849,  222,  §  2. 
1859,  125,  §  1. 
G.  S.  63,  §  84. 
1862,  81,  §  2. 
1872,  191. 

1874,  372, 
§  124. 

1875,  219. 
1878,  68. 

P.  S.  112,  §164. 
R.  L.  Ill, 
§  190. 


Section  139.     The  department,  upon  petition,  and  after  notice  to  1, 

the  railroad  corporation  and  a  public  hearing,  ma}%  for  good  cause  shown,  2 

recommend  to  such  railroad  corporation  such  changes  as  it  considers  3 

proper  in  the  manner  of  making  up  and  shifting  freight  trains  or  freight  4 

cars,  and  of  sounding  of  whistles  on  locomotives,  and  it  may  by  written  5 

order  forbid  or  regulate  the  sounding  of  whistles  on  the  locomotives  of  6 

such  corporation  at  any  specified  grade  crossings  of  the  tracks  of  such  7 

corporation  with  any  public  way.    The  corporation  which  is  subject  to  8 

such  order  shall,  until  the  order  has  been  modified  or  annulled  by  the  9 

department,  conform  in  all  respects  to  the  terms  thereof.  10 

Section  140.     Every  railroad  corporation  shall  cause  boards,  sup-  1 

ported  by  posts  or  otherwise  at  such  height  as  to  be  easily  seen  by  trav-  2 

elers,  and  not  obstructing  travel,  containing  on  each  side  in  capital  3 

letters  at  least  nine  inches  long  the  following  inscription,  —  Railroad  4 

Crossing  —  Look  out  for  the  Engine,  —  to  be  placed  and  constantly  5 

maintained  across  each  public  way  where  it  is  crossed  by  the  railroad  6 

at  the  same  level;   or  the  corporation  may  substitute  therefor  warning  7 

boards  on  each  side  of  the  crossing,  of  such  form,  size  and  description  as  8 

the  department  approves.                         i906, 463,  n,  §§  149, 258.  9 

153  Mass.  51.  162  Mass.  132.  170  Mass.  430.  196  Mass.  192. 


Signboards 
at  crossings 
of  traveled 
places. 

1859,  125,  §  2. 
G.  S.  63,  §  85. 
1874,  372,  §  125. 
P.  S.  112,  §  165. 
R.  L.  Ill, 
§  191. 
1906,  463, 
II,  §§  150,  258. 
7  Gray,  98. 
140  Mass.  238. 
159  Mass.  32. 
170  Mass.  430. 


Warning  signs 
to  be  erected 
by  counties, 

1917,  246,  §  1; 
344.  I.  §  1. 
1919,350, 
§  111. 


Section  141.     The  board  of  aldermen  of  a  city  or  the  selectmen  of  a  1 

town  where  a  traveled  place  is  crossed  by  a  railroad  at  the  same  level,  2 

if  of  opinion  that  it  is  necessary  for  the  better  security  of  the  public  that  3 

boards  such  as  are  described  in  the  preceding  section  should  be  main-  4 

tained  at  such  traveled  place,  may  in  writing  request  the  railroad  cor-  5 

poration  to  erect  and  maintain  them.    If  it  refuses  or  neglects  so  to  do,  6 

they  may  apply  to  the  department.     If  the  department,  after  public  7 

notice  and  a  hearing,  decides  that  such  erection  is  necessary  for  the  better  8 

security  of  the  public,  the  corporation  shall  comply  with  such  decision.  9 

Section  142.     Every  county,  city  and  town  shall,  except  as  herein-  1 

after  provided,  and  the  department  of  public  works  shall,  unless  in  any  2 

case  it  deems  it  unnecessary  or  impracticable  so  to  do,  place  and  maintain  3 

warning  signs  on  every  public  way  subject  to  its  jurisdiction,  where  the  4 

way  crosses  the  tracks  of  a  railroad  at  grade.    The  signs  shall  consist  of  5 

a  metal  disc  twenty-four  inches  in  diameter,  the  field  thereof  to  be  enam-  6 

elled  white,  with  an  enamelled  black  border  line  one  inch  wide,  and  with  7 

an  enamelled  black  perpendicular  and  horizontal  crossline  two  and  one  half  8 

inches  wide;  the  reverse  side  of  the  disc  to  be  colored  black.    In  each  of  9 

the  upper  quarterings  shall  appear,  in  black  enamel,  the  letter  "R",  five  10 

inches  high,  three  and  three  quarter  inches  wide,  the  lines  to  be  of  one  11 

inch  stroke.     The  said  signs  shall  be  placed  in  conspicuous  situations  12 


CUAF.    160.]  RAILROADS.  1733 

13  beside  the  public  way,  on  each  side  of  the  crossing,  and  at  a  distance  of 

14  not  less  than  three  hundred  feet  from  the  nearest  rail  of  the  crossing. 

1  Section  143.     Every  railroad  corporation  shall,  within  four  months  warning  signs 

2  after  receiving  a  written  request  therefor,  furnish  to  any  county,  city  or  raUroals.  ^^ 

3  town  in  the  commonwealth,  or  to  the  department  of  public  works,  as  the  s^fi'^*"!.^  ^' 

4  case  may  be,  a  sufficient  number  of  such  warning  signs  to  enable  such  j^/f;^^"' 

5  county,  city  or  town,  or  the  said  department,  from  time  to  time  to  comply 

6  with  the  preceding  section.    The  said  signs  shall  be  furnished,  as  afore- 

7  said,  without  charge,  unless  they  are  to  be  used  for  replacement  purposes, 

8  in  which  case  the  railroad  corporation  may  require  the  payment  of  the 

9  net  cost  thereof. 

1  Section  144.     When  it  appears  that  the  placing  of  the  signs  prescribed  ,^p™c?i?abie 

2  by  section  one  hundred  and  forty-two  is  impracticable  or  unnecessary,  loi^,  246,  §  4. 

3  the  department  of  public  utilities,  on  petition,  may  release  the  county, 

4  city  or  town,  as  the  case  may  be,  from  compliance  with  said  section. 

1  Section  145.     If  any  county,  city  or  town  shall  neglect,  for  sixty  days.  Penalties. 

2  to  comply  with  the  requirements  of  section  one  hundred  and  forty-two,  ^^^  ■  *  ■  ^ 

3  unless  released  therefrom  by  order  of  the  department  of  public  utilities, 

4  or  unless  prevented  by  the  failure  of  any  railroad  corporation  to  comply 

5  with  the  requirements  of  section  one  hundred  and  forty-three,  or  if  any 

6  railroad  corporation  shall  neglect,  for  sixty  days  after  the  expiration  of  the 

7  four  months  prescribed  in  section  one  hundred  and  forty-three,  to  comply 

8  with  the  requirements  thereof,  it  shall  forfeit  one  dollar  for  each  day 

9  during  which  such  neglect  continues,  to  be  recovered  in  an  action  of  tort 

10  brought  in  the  name  and  for  the  use  of  the  commonwealth  by  the  at- 

1 1  torney  general  or  by  the  district  attorney  of  the  district  where  the  viola- 

12  tion  occurred. 

1  Section  146.    Any  person  who  unlawfully  removes,  throws  dowTi,  Penalty  for 

2  injures  or  defaces  any  such  sign  shall  be  punished  by  a  fine  of  not  more  sfsT""^' "  °" 

3  than  ten  dollars,  to  the  use  of  the  county,  city  or  town  placing  and  main-  34]|''i^|V^  ^' 

4  taining  the  sign,  or  of  the  commonwealth,  if  the  sign  is  placed  and  main-  j^'if';^^"' 

5  tained  by  the  department  of  public  works. 

1  Section  147.    The  department,  after  notice  to  a  railroad  corporation  Gates,  etc.,  at 

2  whose  railroad  crosses  a  public  way  or  traveled  place  at  the  same  level,  isss.'lll', 

3  and  a  hearing,  may  direct  in  writing  that  gates  shall  be  erected  at  said  fj^  |'  fg  j  §0. 

4  crossing  across  said  way  or  place  and  that  an  agent  be  stationed  thereat  ^^■'{':|""' 

5  to  open  and  close  such  gates  when  an  engine  or  train  passes,  or  that  a  i|5i.  3i7. 

6  flagman  be  stationed  at  the  crossing,  who  shall  display  a  flag  when  an  :s5ii!245. 

7  engine  or  train  passes,  or  that  such  crossing  shall  be  provided  with  such  §ss6-s9, 92. 

8  an  electric  signal  as  the  department  determines  the  better  security  of  i.ses!  239',  §  2. 

9  human  life  or  the  convenience  of  public  travel  requires,  and  the  corpo-  1^(26^'^' 
10  ration  shall  comply  with  such  order.  v.  s.  112, 1  lee. 


1SS3,  117. 

1906,  463,  II,  §§  151,  25S. 

188  Mass.  416 

ISSS,  240. 

129  Mass.  364. 

208  Mass.  137 

li.L.  111,5192. 

186  Mass.  249. 

230  Mass.  431. 

1  Section  148.     A  railroad  corporation  which  unreasonably  neglects  to  Penalty. 

2  comply  with  an  order  or  decision  made  under  section  one  hundred  and  r.  s.'so,  §8i.' 

3  forty-one  or  one  hundred  and  forty-seven  shall  forfeit  not  more  than  one  ^seS'Twf  m'. 

4  thousand  dollars.  i874, 372,  §  12s. 

P.  S.  112,  §  IBS.  R.  L.  Ill,  §193.  1006,  463,  II,  §§  152,  258. 


1734 


EAILROADS. 


[Chap.  160. 


Signals  at 
overhead 
crossings. 
1891,  129. 
R.  L.  Ill, 
§  194, 
1906,  463, 
II,  §§  153,  258. 


Section  149.     The  department  may  require  a  railroad  corporation  1 

whose  railroad  crosses  a  highway  by  a  crossing  above  the  level  of  the  2 

highway  to  give  such  signal  as  the  department  may  designate  of  the  3 

approach  of  trains  to  such  crossing.     The  department  may  in  each  case  4 

determine  the  nature  of  the  signal  to  be  given,  and,  in  its  discretion,  5 

may  require  an  automatic  signal.  6 


Removal  of 
standing  wood 
at  crossings. 
18S9,  371. 
R.  L.  HI, 
5195. 
1906.  463, 
II,  §§  154,  258. 


Section  150.     If  the  view  of  a  railroad  crossing  or  highway  at  grade  1 

is  obstructed  by  standing  wood  in  woodlands,  the  railroad  corporation  2 

or  ten  citizens  of  a  town  may  petition  the  county  commissioners  for  the  3 

county  where  such  crossing  is  situated  for  the  removal  of  such  standing  4 

wood;  and  the  commissioners,  after  notice  and  a  hearing,  shall  make  such  5 

orders  as  to  such  removal  as  the  public  safety  demands.     They  shall  also  6 

prescribe  the  limits  within  which  such  standing  wood  shall  be  taken,  and  7 

shall  determine  the  damage  sustained.     Such  damage  and  the  expense  8 

incident  thereto  may  be  recovered  from  the  railroad  corporation  under  9 

chapter  seventy-nine.  10 


Penalty  on 
corporation  for 
obstructing 
highways,  etc. 
1854,  378. 
G.  S.  63,  §  68. 
1871,83:316. 
1874,  372, 
5  129. 

P.  S.  112.  I  169. 
1895,  173. 
R.  L.  111. 
§  196. 
1906,  463, 
II.  §§  155,  258. 
112  Mass,  412, 
135  Mass.  650. 
156  Mass,  159, 
202  Mass,  394, 
206  Mass,  417, 
219  Mass,  410, 
230  Mass,  431. 


Section  151.     A  railroad  corporation,  or  receiver  or  assignee  thereof,  1 

or  its  or  his  servant  or  agent,  shall  not  wilfully  or  negligently  obstruct  or  2 

unnecessarily  or  unreasonably  use  or  occupy  a  public  way,  or  in  any  case  3 

obstruct,  use  or  occupy  it  with  cars  or  engines  for  more  than  five  minutes  4 

at  one  time;   and  if  a  public  way  has  been  thus  used  or  occupied  with  5 

cars  or  engines,  the  railroad  corporation,  or  receiver  or  assignee  thereof,  6 

shall  not  again  use  or  occupy  it  with  the  cars  or  engines  of  a  freight  train,  7 

until  a  sufficient  time,  not  less  than  three  minutes,  has  been  allowed  for  8 

the  passage  across  the  railroad  of  such  travelers  as  were  ready  and  wait-  9 

ing  to  cross  when  the  former  occupation  ceased.     A  railroad  corporation,  10 

receiver  or  assignee  thereof,  who  violates  this  section,  shall  forfeit  one  11 

hundred  dollars.  12 


Occupation  of 
ways  by  cars 
regulated. 
1SS5,  110,  §  1. 
R,  L,  111, 
§  197, 
1906,  463, 
II,  §§  156,  258. 


Section  152.     Upon  an  application  to  the  department,  according  to  1 

section  twenty-four  of  chapter  one  hundred  and  fifty-nine,  stating  that  a  2 

crossing  of  a  railroad  with  a  public  way  at  the  same  level  is  improperly  3 

used  by  a  railroad  corporation  with  its  freight  engines,  freight  cars  or  4 

freight  trains  to  the  unreasonable  inconvenience  or  danger  of  the  public,  5 

the  department,  after  notice,  shall  hear  the  parties;   and,  if  public  con-  6 

venience  or  safety  so  requires,  it  may  direct  that  after  a  date  to  be  fixed  by  7 

it  such  railroad  corporation  shall  not  use  such  crossing  or  any  part  thereof  8 

for  making  up,  connecting  or  disconnecting  freight  trains,  or  the  engines  9 

or  cars  of  such  trains,  or  for  the  purpose  of  distributing  freight  or  freight  10 

cars;  and  to  prevent  the  same  may  prescribe  such  changes  to  be  made  in  11 

the  construction  of  side  tracks,  branches  and  connections,  in  proximity  12 

to  such  crossings,  and  such  regulations  limiting  the  use  of  such  crossings,  13 

as  may  be  necessary.     The  department  may  at  any  time  modify  its  order  14 

after  a  hearing  and  for  cause  shown.  15 


Electricity  a 
motive  power. 
1892,  110. 
R.  L.  Ill, 
§198. 


EQUIPMENT  OF  ENGINES  AND  CARS. 

Section  153.  A  railroad  corporation  may  operate  its  railroad  by 
electricity,  or  by  such  other  power  as  may  duly  be  approved  by  the 
department.  i906, 463,  ii,  s§  157, 258.  1910,  sss. 


Chap.  160.]  railroads.  1735 

1  Section  154.     Every  railroad   corporation   shall   cause  a   sufficient  ^™^«8  ^"<^ 

2  brake  to  be  attached  to  every  car  used  upon  its  railroad  for  the  transpor-  i837, 226.' §  s. 

3  tation  of  passengers,  and  to  every  car  used  for  the  transportation  of  c.s.'es. ' 

4  freight,  except  four-wheel  cars  used  only  for  freight;  and  shall  cause  at  1869^426. 

5  least  one  brakeman  for  every  two  cars  in  a  passenger  train  to  be  stationed  5^/30^"' 

6  thereon,  and  one  brakeman  for  the  last  car  of  every  freight  train  to  be  ?■  s  Yi^f  ^  ^^°' 

7  stationed  thereon.     A  corporation  which  violates  this  section  shall  forfeit  §  200. 

8  not  more  than  one  hundred  dollars. 

1906, 463,  11,  §§  15S,  258.  194  Mass.  489.  206  Mass.  557.  ' 

1  Section  155.     A  railroad  corporation,  in  moving  traffic  between  points  safety  appii- 

2  in  the  commonwealth,  shall  not  use  any  locomotive  not  equipped  with  a  frdghtTrains. 

3  power  driving  wheel  brake  and  appliances  for  operating  the  train  brake  r^^l.'  Yn]    *' 

4  system;  nor  run  any  train  in  such  traffic  unless  a  sufficient  number  of  fg^^^Bs, 

5  cars  in  it  are  so  equipped  with  power  or  train  brakes  that  its  speed  can  ^^'  ^^  ^^^-  ^^^■ 

6  be  controlled  by  the  engineer  of  the  locomotive  which  is  drawing  such 

7  train,  without  the  use  of  the  common  hand  brakes  by  the  brakeman. 

8  When  such  corporation  has  equipped  a  sufficient  number  of  its  cars  with 

9  such  power  or  train  brakes,  it  may  lawfully  refuse  to  receive  from  con- 

10  necting  lines  of  railroad  any  cars  used  in  such  traffic  which  are  not  suf- 

11  ficiently  equipped  with  such  power  or  train  brakes  as  will  work  and 

12  readily  interchange  with  the  brakes  in  use  on  its  own  cars. 

1  Section  156.    A  railroad  corporation  shall  cause  to  be  placed  upon  Safety  couplers 

2  both  ends  of  every  freight  car  owned  by  it  and  which  it  may  lawfully  i8847m2,  §T 

3  use  such  automatic  or  other  safety  coupler  as  the  department,  after  an  ^202.^"' 

4  examination  and  test,  may  prescribe,  and  the  department  may  annul  n°§§''i''e^d,  253. 

5  any  such  requirement  made  by  it. 

1  Section  157.     A   railroad   corporation,    in   moving   traffic   between  Automatic 

2  points  in  the  commonwealth,  shall  not  haul  or  use,  or  permit  to  be  hauled  frelghTcare! 

3  or  used,  on  its  lines  any  car  which  is  not  equipped  with  couplers  coupling  ^^l'  Hf^  ^  ^■ 

4  automatically  by  impact,  and  which  do  not  require  men  to  go  between  fgog^gg 

5  the  cars  to  uncouple  them.  11.  §§  i«i.  258. 

182  Mass.  348.  188  Mass.  390.  19G  Mass.  471. 

1  Section  158.     A  railroad  corporation,  in  moving  traffic  between  points  Grab  irons. 

2  in  the  commonwealth,  until  otherwise  ordered  by  the  department,  shall  r.  l'  m,' 

3  not  use  any  car,  except  flat  cars  equipped  with  automatic  couplers,  wdiich  i906!'4fi3, 

4  is  not  provided  with  secure  grab  irons  or  hand  holds  on  the  ends  and  sides  "■  ^^  ^^^'  ^^^' 

5  for  greater  security  to  men  in  coupling  and  uncoupling  cars. 

1  Section  159.     The  standard  height  of  draw  bars  for  freight  cars,  standard 

2  measured  perpendicularly  from  the  level  of  the  top  of  the  rails  to  the  draw  bars  for 

3  centres  of  the  draw  bars,  shall  be  thirty-four  and  one  half  inches  for  i^gl^'sol.l^. 

4  standard  gauge  railroads  and  twenty-six  inches  for  narrow  gauge  railroads,  Pgos  ^"' 

5  with  a  maximum  variation  from  such  standard  height,  in  either  case,  of  !?°?i''j% 

6  three  inches  between  the  draw  bars  of  empty  and  loaded  cars;  and  no     ' 

7  freight  car  with  draw  bars  which  do  not  comply  with  the  above  stand- 

8  ard,  whether  loaded  or  unloaded,  shall  be  used  in  moving  traffic  between 

9  points  in  the  commonwealth. 

I 

1  Section  160.     A  railroad  corporation  which  violates  any  provision  of  f™?'^'',;^  §  .5 

2  sections  one  hundred  and  fifty-five,  one  hundred  and  fifty-seven,  one  hun-  R-  l.  111,  §  206. 


1736 


RAILROADS. 


[Ch,\p.  IGO. 


1906'463,  dred  and  fiftj'-eight  and  one  hundred  and  fifty-nine,  shall  forfeit  one  3 

hundred  dollars,  to  be  recovered  in  an  action  of  tort  brought  in  the  4 

name  and  for  the  use  of  the  commonwealth  by  the  attorney  general  or  5 

the  district  attorney  for  the  district  where  the  offence  was  committed.  6 


Limitation  of 

preceding 

sections. 

1895,  362,  §  5. 

R.  L.  Ill, 

§207. 

1906,  463. 

II,  §§  165,  258. 

Extension  of 
time  for  equip- 
ment. 

1895,  362,  §  6. 
R.  L.  Ill, 
§208. 
1906,  463, 
II,  §§  166,  258. 


Section  161.     Sections  one  hundred  and  fifty-five  and  one  hundred  1 

and  fifty-seven  to  one  hundred  and  sixty,  inclusive,  shall  not  apply  to  2 

trains  composed  of  four-wheel  cars,  or  to  locomotives  used  in  hauling  3 

such  trains.  4 

Section  162.     The  department  may  from  time  to  time,  after  hearing  1 

and  for  good  cause,  exempt,  until  a  date  fixed  by  it,  any  railroad  corpo-  2 

ration  from  the  requirements  of  sections  one  hundred  and  fifty-five,  one  3 

hundred  and  fifty-seven,  one  hundred  and  fifty-eight  and  one  hundred  4 

and  fifty-nine.  5 


Tools  to  be 
carried  with 
trains. 

1870,  372. 

1871,  7. 
1874,  372, 
§  Wl. 

P.  S.  112,  §  171. 

18S2.  54.  §  1. 

R.  L.  Ill, 

§210. 

1906,  463, 

II.  §§  168,  258. 

1917,41. 


Section  163.     Every  railroad  corporation  shall  equip  each   of  its  1 

trains,  for  use  in  case  of  accident,  with  two  car  replacers,  two  jack  screws,  2 

two  crow  bars,  one  pinch  bar,  one  claw  bar,  one  spike  hammer,  two  sharp  3 

axes,  and  ropes  or  chains  suitable  for  hauling  cars;  and  shall  also  equip  4 

each  car  of  every  passenger  train  owned  or  regularly  used  by  it,  including  5 

mail  and  baggage  cars,  with  two  sets  of  tools,  consisting  of  an  axe,  a  sledge  6 

hammer,  a  crow  bar,  handsaw  and  pail,  to  be  maintained  in  good  con-  7 

dition,  and  one  set  of  which  shall  be  kept  upon  the  inside  and  the  other  8 

upon  the  outside  of  every  such  car,  in  a  convenient  place  and  in  a  manner  9 

approved  by  the  department;   but  one  set  shall  be  sufficient  if  so  placed  10 

as  to  be  accessible  both  from  the  inside  and  outside  of  such  car;  provided,  11 

that  the  department  may  require  trains  or  cars  to  be  equipped  with  other  12 

tools  in  substitution  for,  or  in  addition  to,  those  above  prescribed.     A  13 

corporation  which  violates  this  section  shall  forfeit  five  hundred  dollars.  14 


Safeguards 

against  fire. 

1882,  M.  §  3. 

R  L.  Ill, 

§211. 

1906,  283:  463, 

II,  §§  169,  258. 


Section  164.     Every  passenger,  baggage,  mail  and  express  car,  owned  1 

or  regularly  used  on  any  railroad  in  the  commonwealth,  shall  be  pro-  2 

vided  with  such  safeguards  against  fire  as  the  department  in  writing  3 

shall  order.     A  corporation  which  violates  this  section  shall  forfeit  three  4 

hundred  dollars.  5 


Heating  of 
cars  regulated. 
1887,  302. 
1891,  249. 
R.  L.  Ill, 
§212. 
1906,  463. 
II,  §§  170,  258. 


Section  165.  A  passenger,  mail  or  baggage  car  shall  not  be  heated  1 
by  a  stove  or  furnace  kept  in  the  car  or  suspended  therefrom  unless  it  is  2 
temporarily  necessary  by  reason  of  an  accident  or  other  emergency,  and  3 
no  method  of  heating  such  cars  nor  heater  shall  be  used  until  it  shall  have  4 
been  approved  in  writing  by  the  department;  but  the  department  may  5 
from  time  to  time  grant  such  exemptions  from  the  requirements  of  this  6 
section  as  may  seem  to  it  necessary  or  reasonable,  and  may  grant  per-  7 
mission  to  any  railroad  corporation  to  make  such  experiments  in  heating  8 
its  passenger  cars  as  the  department  determines  is  proper.  A  corpora-  9 
tion  which  violates  this  section  shall  forfeit  not  more  than  five  hundred  10 
dollars.  11 


Passenger  cars 
not  to  be 
lighted  by  ex- 
plosive oils. 
1868,  286. 
1872,  276. 
1874,  372, 
§132. 
P.  S.  112,  §  172. 


Section  166.  A  passenger  car  on  a  railroad  shall  not  be  lighted  by 
naphtha,  nor  by  an  illuminating  oil  or  fluid  made  in  part  of  naphtha  or 
which  ^^•ill  ignite  at  a  temperature  of  less  than  three  hundred  degrees 
Fahrenheit.  A  corporation  which  violates  this  section  shall  forfeit  not 
more  than  five  hundred  dollars.       R.  l.  iii,  §  213.         1906,403,  n,  §§  171,  258. 


CUAF.    160.]  ■  EAILRO.tDS.  1737 

1  Section  167.     Every    passenger,    baggage,    mail    and    express    car.  Platform  gates. 

2  o^Tied  or  regularly  used  on  any  railroad  in  the  commonwealth  shall  be  r.  l!  mi 
i3  provided  at  each  end  thereof  with  platform  gates  of  a  pattern  approved  i90fi*'463, 

4  by  the  department.     A  railroad  corporation  which  hauls  or  uses,  or  per-  {g'e^liass'Kf' 

5  mits  to  be  hauled  or  used,  on  its  railroad  any  car  in  violation  of  this  sec- 

6  tion  shall  forfeit  one  hundred  dollars  to  the  use  of  the  commonwealth, 

7  and  the  attorney  general  or  the  district  attorney  for  the  district  where 

8  such  violation  occiured  shall  bring  an  action  therefor. 

1  Section  168.     The  department  may  make  and  revise  regulations  for  Testing  of 

2  testing  boilers  of  locomotives  used  by  railroad  corporations,  by  other  b°o'i?™s'.  "^ 

3  corporations,  and  by  persons,  firms  or  associations  upon  any  railroad  or  a*L!iii, 

4  railway  within  the  commonwealth,  and  every  person,  firm,  association  fgoe^es, 

5  and  corporation  other  than  a  raihoad  corporation,  so  using  a  locomotive,  iJ/qI^jYI'  ^°^' 

6  shall  inform  the  department  in  WTiting  on  or  before  June  thirtieth  of 

7  each  year  of  the  number  of  locomotives  so  used  by  him  or  it,  together 

8  with  the  length  of  track  of  such  railroad  or  railway,  its  location  and 

9  uses,  and  such  other  information  as  the  department  may  require.    Tliis 

10  section  shall  apply  to  railroads  for  private  use  authorized  by  section  two 

11  hundred  and  forty-five  of  tliis  chapter.    Tests  under  regulations  made 

12  as  aforesaid  shall,  if  possible,  be  made  by  the  master  mechanic  of  the 

13  corporation,  association,  person  or  firm  which  constructs,  repairs  or  uses 

14  the  boiler  of  the  locomotive,  and  the  report  of  such  tests  shall  be  in  form 

15  satisfactory  to  the  department.     A  corporation,  association,  firm  or 

16  person  using  a  locomotive  in  the  commonwealth  the  boiler  of  which  has 

17  not  been  tested  in  accordance  with  this  section  shall  be  punished  by  a 

18  fine  of  twenty  dollars  for  every  day  after  notice  by  the  department  dur- 

19  ing  which  such  use  continues. 

1  Section  169.    A  railroad  corporation  using  any  vacuum  brake  shall  ^icSSf  ^* 

2  pro^'ide  and  use  on  every  locomotiA'e  equipped  therewith  a  muffler  jg^g'^gg* 

3  or  other  appliance,  approved  in  wxiting  by  the  department,  for  deadening  §§^,'3    ' 

4  the  noise  incident  to  the  operation  of  such  brake;  but  any  other  appli-  shVs.  m. 

5  ance  may  be  used  upon  any  locomotive  for  the  purpose  of  experiment  §  215.     ' 

6  only,  for  not  more  than  thirty  days,  but  not  upon  more  than  two  loco-  ii,°§§  m',  25s. 

7  moti^•es  of  the  same  corporation  at  any  one  time.     Every  application 

8  to  the  department  for  approval  of  such  appliances  shall  be  in  WTiting; 

9  and  such  approval  may  be  revoked  by  the  department  by  written  notice 
10  to  the  corporation. 

1  Section  170.     A  railroad  corporation  using  upon  its  locomotives  a  MufHers  for 

2  pop  or  other  safety  valve  shall  provide  and  use  therewith  a  suitable  and  1879^284,^2. 

3  sufficient  appliance  for  deadening  the  sound  made  by  steam  escaping  r  i.Vu,  ^ 

4  therefrom,  and,  if  it  materially  retards  the  escape  of  steam  or  increases  fgor^^es, 

5  the  pressiu-e  upon  the  boiler,  the  corporation  shall  use  an  additional  ^^'  ^5 175, 258. 

6  safety  valve  without  such  appliance,  set  at  a  liigher  point  than  the  other 

7  but  below  the  point  at  which  explosion  is  likely  to  occur. 

1  Section  171.     A  corporation  which  violates  any  provision  of  the  two  Penalties. 

2  preceding  sections  shall  forfeit  not  less  than  one  hundred  nor  more  than  p.  s.'n"2,'§  i76. 

3  three  hundred  dollars  for  every  locomotive  used  by  it  in  violation  thereof,  f  2h.^^^' 

4  and  a  further  sum  of  five  dollars  for  each  day  upon  wliich  such  locomo-  ii°§§  ne,  25s. 

5  tive  shall  be  run  in  violation  thereof. 


1738 


RAILRO.U)S. 


[Chap.  160. 


Reasonable 
accommo- 
dationa. 
1S49,  191,  §  2. 
G.  S.  63,  §  110. 
1874,  372, 
§133. 


Section  172.     Every  railroad  corporation  shall  furnish  reasonable  1 

accommodations  for  the  convenience  and  safety  of  passengers;   and  for  2 

every  wilful  neglect  to  provide  the  same  shall  forfeit  not  less  than  five  nor  3 

more  than  twenty  dollars.  p.  s.  112,  §  177.  4 

R.  L.  Ill,  §  219.  1906,  463,  II,  §§  177,  258.  210  Mass.  164. 


raTokS  cars '°      Section  173.     A  railroad  corporation  shall  not  require  women  or  chil-  1 

18SS,  176.         di-en  to  ride  in  smoking  cars.     For  a  violation  of  this  section  the  corpora-  2 

§  235.     '         tion,  or  any  officer  or  employee  thereof,  shall  be  punished  by  a  fine  of  3 

II,  §§  191, 258.  not  less  than  ten  nor  more  than  fifty  dollars.  4 

water.'°^              SECTION  174.     Every  railroad  car,  except  private  cars,  sleeping  cars,  1 

1912'  5si'  ^  '■    dining  cars,  parlor  cars,  and  the  smoking,  buffet  and  observation  cars  2 

JSJi'  «?■  t  L  used  in  connection  with  the  same,  while  in  use  for  the  transporta-  3 

1919,350,8  96.      .              „                                                               ....                 .,                                    1      II    1  ^ 

tion  01  passengers,  upon  a  tram  runmng  thirty  miles  or  more,  shall  be  4 

provided  with  a  sufficient  quantity  of  pure  drinking  water  in  such  place  5 

in  the  car  as  will  be  convenient  for  the  passengers,  and  with  individual  6 

drinking  cups  accessible  to  the  passengers.     Said  cups  shall  be  in  a  7 

proper  receptacle  near  the  water  tank,  and  said  receptacle  shall  be  so  8 

placed  as  to  be  easily  seen  and  shall  be  plainly  marked  as  follows:  9 

DRINKING   CUPS 

FOR   USE 

ONLY   IN  THIS  CAR 

FREE 

such  words  to  occupy  a  space  not  less  than  two  inches  wide  by  three  10 

inches  long,  and  to  be  in  clear  black  letters  on  a  white  background.    No  11 

charge  shall  be  made  for  the  M'ater  or  for  the  drinking  cups.     The  water  12 

jyid  cups  supplied  shall  be  subject  to  the  supervision  and  approval  of  13 

the  department  of  public  health,  which  shall  enforce  this  and  the  follow-  14 

ing  section.  15 


Penalty. 
1911,491,  §  2. 


Section  175.    Violations  of  the  preceding  section  shall  be  punished  1 

by  a  fine  of  not  less  than  twenty-five  dollars  for  each  trip  made  by  a  car  2 

used  for  transporting  passengers  and  not  provided  with  water  and  uten-  3 

sils  for  its  distribution  in  accordance  with  the  preceding  section.  4 


'^Uances ""'  Section176.     The  department  may  require  a  railroad  corporation  to  1 

1882,64  §4.     equip  its  cars  with  such  other  appliances  as,  in  the  judgment  of  the  de-  2 

§  i222.     '         partment,  are  necessary  for  the  further  protection  of  life  in  all  passenger  3 

II,  §'§  ISO,  258.  trains  used  in  the  commonwealth.  4 


EMPLOYEES. 

Sd'bldges?or       Section  177.     Every  railroad  corporation  shall  provide  a  uniform  1 

i874°292*'        hat  or  cap  and  distinguishing  badge,  which  shall  be  worn  by  all  its  em-  2 

372j,'y^34.        ployees  whose  duties  relate  immediately  to  the  transportation  of  passen-  3 

p.  s.'iii,  §  178.  gers  or  their  baggage.     A  corporation  neglecting  to  provide  such  uniform  4 

§  226.     '         hat  or  cap  and  badge  shall  forfeit  one  hundred  dollars  for  each  week  of  5 

ii,°§§*n8, 258.  such  neglect;  and  if  such  an  employee  neglects  to  wear  the  same  when  6 

on  duty,  the  corporation  which  employs  him  shall  for  each  case  of  such  7 

neglect  forfeit  twenty-five  dollars;  and  no  employee,  unless  wearing  his  8 

uniform  hat  or  cap  and  badge,  shall  be  permitted  to  exercise  any  au-  9 

thority  or  to  perform  any  of  the  duties  of  his  office.  10 


Ch.\P.    IGO.]  RAILEO.UJS.  1739 

1  Section  178.     A  railroad  corporation  shall  not  employ  any  person  CoWbiind- 

2  or  keep  him  in  its  employ  in  a  position  requiring  the  employee  to  distin-  tion'for!""'"''" 

3  guish  form  or  color  signals,  unless  he  has  been  examined  for  color  blind-  r  s'.'/f2*,§  179. 

4  ness  or  other  defective  sight  by  a  competent  person  employed  by  the  ^l[  }if; 

5  corporation  and  has  received  a  certificate  that  he  is  not  disqualified  for  fg^'^gj 

6  such  position  by  color  blindness  or  other  defective  sight.     A  railroad  cor-  h.  5§  i-'g,  258. 

7  poration  which  violates  this  section  shall  forfeit  one  hundred  dollars. 

1  Section  179.     No  person  shall  act  as  a  locomotive  engineer  unless  he  ExperiBnce 

2  has  been  employed  two  years  as  a  locomotive  fireman  or  as  an  engineer's  foSmotive 

3  helper,  or  was  employed  as  a  locomotive  engineer  before  June  tenth,  igfil^sg,  §  1. 

4  nineteen  hundred  and  eleven. 

1  Section  180.     No  person  shall  act  as  a  conductor  on  a  railroad  train  Experience 

2  unless  he  has  been  employed  as  a  brakeman  for  two  years,  or  was  em-  conductor. 

3  ployed  as  a  conductor  on  a  railroad  train  before  June  tenth,  nineteen  ^^^^'  ^^^'  ^  ^' 

4  hundred  and  eleven. 

1       Section  181.     No  person  shall  knowingly  engage,  promote,  require.  Promoting, 

2  1  •!  j.j_**i.*f**ji  etc.,  violation 

persuade,  prevail  upon,  or  cause  any  person  to  act  m  violation  01  either  of  two  preced- 

3  of  the  two  preceding  sections.  1911,  S39,  §  3. 


ing  sections 
forbidden. 


1  Section  182.     The  three  preceding  sections  shall  not  apply  to  the  Exceptions. 

2  operating  of  locomotive  engines  by  engine  hostlers  in  or  around  engine  §"§  4,'6.  ' 

3  houses,  or  to  any  railroad  other  than  a  standard  gauge  railroad.    In  the 

4  event  of  the  disability  of  an  engineer  or  conductor  on  the  road,  railroad 

5  companies  may  employ  persons  without  the  qualifications  prescribed  by 

6  sections  one  hundred  and  seventy-nine  and  one  hundred  and  eighty, 

7  but  only  for  the  purpose  of  reaching  a  terminal  station. 

1  Section  183.     Any  violation  of  any  provision  of  the  four  preceding  Penalty. 

2  sections  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars 

3  or  imprisonment  for  not  more  than  one  year,  or  both,  and  each  day's 

4  violation  shall  constitute  a  separate  off'ence. 

1  Section  184.     Every  person  employed  as  signalman,  towerman,  lever-  Rest  days  re- 

2  man,  agent,  train  despatcher,  telegrapher  or  telephone  operator  in  a  rail-  ?ri'n'empfoyees. 

3  road  signal  tower  or  railroad  station,  and  every  other  person  employed  ^*^*'  ^^^' 

4  by  a  railroad  in  the  operating  of  trains  by  the  use  of  the  telegraph,  tele- 

5  phone  or  signal  and  interlocking  switching  machines  shall  be  allowed  two 

6  days  of  twenty-four  hours  each  in  every  month  for  rest  with  regular 

7  compensation,  except  in  a  case  of  extraordinary  emergency  caused  by 

8  accident,  fire,  flood,  or  danger  to  life  or  property,  when  the  said  period 

9  of  rest  shall  be  allowed  after  the  emergency  is  past.    Any  violation  of 

10  this  section  shall  be  punished  by  a  fine  of  not  less  than  one  hundred 

11  dollars. 

1  Section  185.     Whenever  the  department  is  of  opinion,  after  a  hear-  Department  to 

2  ing  had  upon  its  own  motion  or  upon  complaint,  that  the  number  of  crews'!'^ '"'" 

3  men  forming  a  train  crew  of  any  train  is  not  sufficient  to  operate  said  ^^^^'  ^•^-^■ 

4  train  for  the  safety  of  the  public  and  the  employees  of  the  railroad,  it 

5  shall  thereupon  order  such  changes  as  it  deems  necessary. 


1740  R.ULRO-\DS.  [Chap.  160. 


FARES,  TOLLS,  CHARGES,  ETC. 

w^tabfished      SECTION  1S6.     A  railroad  corporation  may  establish  for  its  sole  bene-  1 

R 'sTo'^rss     ^*  fares,  tolls  and  charges  upon  all  passengers  and  property  conveyed  or  2 

Pd-?,- o^v-^c^^,^-  transported  on  its  railroad,  at  such  rates  as  mav  be  determined  bv  its  3 

18/0,  32o.  §1.  .  '  .  ..."  ' 

1S74.372,  §179.  clirectoFS,  and  mav  irom  time  to  tune  bv  its  directors  regulate  the  use  4 

P  S   112   5  180  •  -  ''  . 

R.L. iiT.§225!  of  Its  railroad;   but  such  fares,  tolls  and  charges,  and  such  regulations,  5 

II,  §§  181, 25S.  shall  be  subject  to  revision  and  alteration  by  the  general  court,  or  by  6 

2io^Mass^i5'9,   such  ofEccrs  or  persons  as  it  may  appoint  for  the  purpose,  am-thing  in  7 

the  charter  of  the  railroad  corporation  to  the  contrary  notwithstanding.  8 


553. 


TR.\NSPORTATION  OF  PASSENGERS. 

SSIngere  at°^       Section  187.     A  railroad  corporation  may  make  contracts  for  the  1 

is7"i?M3.''"^'    conveyance  of  passengers  upon  designated  trains  for  a  specific  distance  2 

1^135^^^'         ^*  fixed  times,  at  such  reduced  rates  of  fare  as  the  parties  may  agree  3 

p.  s^  112,  §  isi.  upon.    Tickets  may  be  issued  for  such  passengers,  upon  which  shall  be  4 

§  228.     '          plainly  printed  the  terms  upon  which  they  may  be  used.    Such  tickets  5 

II.  §§  184. 258.  shall  not  be  transferable  without  the  consent  of  the  corporation,  nor  shall  G 

192  Mass.'  159.'   they  entitle  the  holder  to  ride  upon  a  train  not  therein  designated.  7 

r^Stoi.^           Section  188.     A  railroad  corporation  shall  not  demand  or  receive  for  1 

i9oo!  154.         ^'''y  single  ticket  bought  or  fare  paid  on  a  train  or  elsewhere  than  at  its  2 

fi'e^^^'         ticket  offices  more  than  ten  cents  in  excess  of  the  tariff  rates  charged  at  3 

JJ^fi^i^o^i  ^-o   ^ts  ticket  offices.    When  such  excess  is  received,  the  conductor  or  other  4 

person  recemng  it  shall  gn-e  to  the  passenger  a  printed  certincate  M-hich  5 

shall  entitle  him  to  receive  the  excess  so  paid  at  any  station  of  the  cor-  6 

poration  in  exchange  for  such  certificate.    A  railroad  corporation  violat-  7 

ing  any  p^o^^sion  hereof  shall  be  punished  by  a  fine  of  not  less  than  ten  8 

nor  more  than  fifty  dollars.  9 

cou^Slto'be^'      Section  189.     Every   railroad    corporation    issuing    mileage    tickets  1 

i9os"^  W9'  §  1     shall,  upon  presentation  of  such  a  ticket  by  a  passenger,  detach  there-  2 

from  one  coupon  and  no  more  for  each  mile  and  fraction  thereof  actually  3 

traveled;  provided,  that  for  distances  less  than  three  miles  three  coupons  4 

may  so  be  detached.    Distances  to  or  from  the  station  known  as  Back  5 

Bay  on  the  New  York,  New  Ha\'en  and  Hartford  railroad,  and  the  6 

stations  kno\\'n  as  Trinity  Place  and  Huntington  Avenue  on  the  Boston  7 

and  Albany  railroad,  shall  be  computed  as  if  to  or  from  the  Boston  ter-  8 

minal  station.  9 

SkJ""tetwS:n      Section  190.     Every  railroad  corporation  having  a  terminus  in  Bos-  1 

ftations''^fthin  *°"'  ^-^ccpt  the  Boston,  Revere  Beach  and  LjTin  Railroad  Company,  2 

i9oo°395'^'^'      ^^^^'  ^^^'  ^  commutation  ticket  good  for  not  more  than  twelve  rides  3 

R.  l!  m;         between  Boston  and  each  station  on  its  lines  ■^•ithin  fifteen  miles  of  its  4 

1906, 463,    _     terminal  station  in  Boston.     The  said  tickets,  before  issuance,  shall  be  5 

1908.  &49,'  °  ■  subject  to  approval  by  the  department  both  as  to  the  rate  of  fare  and  6 

1913.784,  §29.  the  conditions  named  therein.    So  far  as  is  practicable,  the  rates  of  fare  7 

224  Mass.  463.   qq  ^jj  joads  for  like  distances  from  their  terminal  stations  shall  be  equal.  8 

Sison  tickets.        Section  191.     All  railroads  issuing  season  tickets  between  points  1 

1911, 508,  §  1.    within  the  commonwealth  shall,  at  the  request  and  on  the  presentation  2 

of  a  season  ticket  by  the  holder  thereof,  place  the  same  on  deposit  for  3 

not  less  than  one  week  and  reissue  the  ticket  at  the  request  of  the  owner,  4 


CeAP.    160.]  HAILRO.U)S.  1741 

5  extending  the  period  for  which  the  ticket  was  issued  by  a  number  of  days 

0  equal  to  the  number  during  which  it  remained  on  deposit;  provided,  that 

7  no  ticket  shall  be  deposited  more  frequently  than  at  the  rate  of  once 

8  in  three  months;  and  a  holder  shall  have  such  further  privileges  as  the 

9  department  approves. 

1  Section  192.     All   railroads  issuing  season  tickets  between   points  Reimbursing 

2  within  the  commonwealth  shall,  at  the  reciuest  of  a  holder  of  a  season  holder  for  " 

3  ticket,  reimburse  said  holder  for  the  cost  of  the  fares  paid  by  said  holder  igTifsos,  §  2. 

4  between  the  stations  named  on  the  ticket  whenever  said  holder  fails  to 

5  present  the  season  ticket  for  fare.    The  holder  of  a  season  ticket  in  order 

6  to  be  entitled  to  reimbursement  must,  within  one  week,  present  to  the 

7  proper  officer  of  the  railroad  company  the  certificate  given  at  the  time  of 

8  paying  the  fare  together  with  the  coupon  from  the  season  ticket. 

1  Section  193.     Every  railroad  corporation  shall  sell  to  an  express  Season  ticicets 

2  messenger  or  to  a  person  conducting  a  local  express  business,  as  provided  messengers. 

3  in  section  two  hundred  and  six,  in  its  trains  or  cars  within  the  common-  r^^l.'iii,'  ^  ^' 

4  wealth,  a  season  ticket  for  his  personal  transportation,  at  a  price  not  ex-  fgoe^^es 

5  ceeding  that  at  which  similar  tickets  are  sold  to  passengers,  upon  receiv-  loi^ii^^^llf' 

6  ing  from  him  a  release  of  all  right,  to  whomsoever  accruing,  to  damages 

7  or  compensation  for  death  or  for  any  personal  injury  received  by  him 

8  while  riding  on  such  ticket. 

1  Section  194.    Every  railroad  corporation  shall,  upon  request,  give  Baggage 

2  checks  to  passengers  for  their  baggage  when  delivered  for  transportation,  ism,  23. 

3  and  shall  re-deliver  the  baggage  to  the  passengers  upon  the  surrender  isTl'.lref  ^^^' 

4  of  such  checks.     A  corporation  violating  this  section  shall  forfeit  ten  |..'|®ii2,  §  is2. 

5  dollars.  R.  l.  111,  §  230.  1906, 463, 11,  §§  ise,  2S8. 

15  Gray,  447.  183  Mass.  175.  209  Mass.  598. 

7  Allen.  329.  199  Mass.  SS6.  215  Mass.  440. 

1  Section  195.     No  charge  shall  be  made  by  railroad  corporations  for  storage  of 

2  the  care  or  storage  of  baggage  left  at  or  arriving  in  railroad  stations  upon  Frfday  to™™ 

3  Friday,  for  the  period  of  time  between  Friday  and  twelve  o'clock  noon  i907,''287. 

4  of  the  following  Monday.  i9os,  soi. 

1  Section  196.     A  railroad  corporation  which  owns  or  operates  a  rail-  blgga'le  ^^ 

2  road  of  standard  gauge  shall  check  and  transport  between  stations  within  j^oo,  sis. 

3  the  limits  of  the  commonwealth,  as  baggage,  and  subject  to  the  same  §  229.     ' 

4  charges,  terms  and    liabilities  as  other  baggage,  one  bicycle  for  each  li,  §§  iss,  258. 

5  passenger  who  pays  by  a  mileage  book,  by  a  ticket  other  than  a  season 

6  ticket,  or  in  cash,  the  established  fare,  if  it  is  not  less  than  ten  cents, 

7  exclusive  of  rebate.    The  weight  of  the  bicycle  shall  be  included  in  deter- 

8  mining  the  total  weight  of  the  baggage  to  be  transported  for  such  pas- 

9  senger.     Such  corporation  shall  not  require  such  bicycle  to  be  crated, 
10  covered  or  otherwise  protected. 

1  Section  197.     Every  railroad  corporation  having  a  terminus  in  Boston  cheap  moming 

2  shall,  upon  the  application  of  two  hundred  or  more  persons  therefor,  tllms!^^"^^ 

3  furnish  on  each  week  day  a  morning  train  in  and  an  evening  train  out  p*a'nl?  §  iss. 

4  for  distances  not  exceeding  fifteen  miles,  or  suitable  cars  attached  to  other  f^si  ^^^' 

5  trains,  and  reaching  and  leaving  Boston  at  about  six  o'clock  in  the  fore-  {i^ftYs^j  ojs 

6  noon  and  afternoon,  or  at  such  hours  as  may  be  fixed  by  the  department; 


1742 


EAILRO-\DS. 


[Chap.  160. 


and  for  such  trains,  shall  furnish  season  tickets  good  once  a  day  each  way  7 
for  six  days  in  the  week,  at  a  rate  not  exceeding,  for  yearly  tickets,  three  8 
dollars  a  mile  and  for  quarterly  tickets,  one  dollar  a  mile.  9 


Workingmen's 

trains. 

1900,  298. 

E.  L.  Ill, 

§232. 

1906,  463. 

II,  §§  188,  258. 


Section  198.     Every    railroad    corporation    having    a    terminus    in  1 

Boston  shall  furnish  such  number  of  workingmen's  trains,  not  less  than  2 

two  each  way,  as  the  department,  upon  a  petition  for  such  trains  filed  3 

with  it,  shall  in  each  case  order.     Such  trains  shall  arrive  at  Boston  4 

between  six  and  half  past  seven  o'clock  in  the  morning  and  leave  Boston  5 

between  the  same  hours  in  the  evening  and  special  cars  may  be  provided  6 

therefor.    Season  tickets,  good  once  a  day  each  way  for  six  days  in  the  7 

week,  shall  be  furnished  for  such  trains  at  a  rate  not  exceeding,  for  yearly  8 

tickets,  three  dollars  a  mile,  and  for  quarterly  tickets,  one  dollar  a  mile.  9 


Free  passes  to 

state  officers 

forbidden. 

1892,  59, 

§§  1-3. 

R.  L.  Ill, 

§234. 

1906,  463, 

II,  §§  190,  258. 


Section  199.  Any  person  who,  being  governor,  lieutenant  governor,  1 
member  of  the  council,  member  or  member-elect  of  the  general  court,  2 
justice  of  the  supreme  judicial  court,  justice  of  the  superior  court,  judge  3 
of  probate,  justice  of  a  district  court  or  a  county  commissioner,  who  4 
requests,  for  himself  or  another,  accepts  or  uses  any  free  pass  upon  a  5 
railroad,  or  any  ticket  entitling  him  to  transportation  upon  a  railroad,  6 
for  which  he  has  paid  a  less  price  than  is  demanded  of  the  public  gen-  7 
erally,  and  an  officer,  agent  or  employee  of  a  railroad  corporation  who  8 
issues,  delivers  or  ofl^ers  to  any  person  hereinbefore  mentioned  or  to  or  9 
for  any  other  person  at  the  request,  solicitation  or  procurement  of  any  10 
such  person,  except  as  otherwise  provided  by  the  foOowing  section  or  11 
section  fifteen  of  chapter  one  hundred  and  fifty-nine,  a  free  pass  or  any  12 
ticket  entitling  him  to  transportation  at  a  less  rate  of  fare  than  is  de-  13 
manded  of  the  public  generally,  shall  be  punished  by  a  fine  of  not  less  14 
than  one  hundred  nor  more  than  one  thousand  dollars.  15 


Passes  to 
former  em- 
ployees. 
1912.  488. 
227  Mass.  493. 


Section  200.    Railroad  corporations  may  issue  passes  for  free  trans-  1 

portation  to  former  employees  who  have  been  injured  in  the  service  of  2 

the  corporation  issuing  the  pass.    The  pass  shall  state  the  nature  of  the  3 

injury,  shall  not  be  transferable,  and  shall  be  forfeited  if  used,  or  at-  4 

tempted  to  be  used,  in  violation  of  the  conditions  of  the  pass,  or  if  it  was  5 

obtained  by  misrepresentation.  6 


transportation  of  mails. 

Section  201.     Every  railroad  corporation  shall,  upon  request  of  the  1 

postmaster  general  or  of  an  authorized  agent  of  the  post  office  depart-  2 

R  L  Vn  ^  ^^*'  ™ent,  carry  the  mails  at  such  times  and  upon  such  trains  as  may  be  3 

§  236.     ■         desired  by  him  upon  the  terms  provided  in  the  two  following  sections.  4 

1906,  463,  II,  §§  192,  2SS. 


Mails  to  be 
transported 
on  request. 
1867,  351,  §  1. 
P, ■     " 


S^ar^ilig""  Section  202.  A  corporation  which  cannot  agree  with  the  postmaster 
i867!'35i,  §  2.  general  or  other  proper  officer  of  the  United  States  as  to  the  compensa- 
R  L  m'  ^  ^^^'  *'°'^  *°  ^^  P^'*^  ^°^  ^^^^  transportation  may  notify  the  postmaster  general 
§237.  '  of  its  unwillingness  to  carry  the  mails  upon  the  terms  proposed;  and  after 
the  expiration  of  three  months  from  the  depositing  of  such  notice  in  a 
post  office  in  the  commonwealth,  addressed  to  the  postmaster  general, 
such  corporation  shall  be  absolved  from  the  duty  imposed  in  the  pre- 
ceding section,  unless  he  or  some  officer  or  agent  of  the  post  office  depart- 
ment within  that  time  has  filed  a  petition  in  the  supreme  judicial  court 


1906,  463, 
II,  §§  193, 


258. 


Chap.  160.]  eailroads.  1743 

10  in  any  county,  praying  for  the  appointment  of  three  commissioners  to 

1 1  fix  the  price  to  be  paid  to  the  corporation  for  such  service;  and  the  court, 

12  after  notice  to  the  corporation,  shall  appoint  three  commissioners  to 
1-3  hear  the  parties  and  determine  sueli  compensation,  the  award  of  a 

14  majority  of  whom,  being  made  to  and  confirmed  by  said  court,  shall 

15  be  final  as  to  all  past  service  and  for  a  period  of  two  years  after  such 

16  confirmation. 

1  Section  203.     Upon  application  to  said  court  by  either  party  to  such  Revision  of 

2  proceedings  at  any  time  after  the  expiration  of  two  years  from  the  con-  isef.ssi,  §3. 

3  firmation  of  such  award,  the  matter  may  be  reopened,  and  the  same  or  R.L.Vn,^'*^" 

4  other  commissioners  shall  rehear  the  parties,  and  the  award  of  said  com-  fgog^gg  u 

5  missioners  or  of  a  majority  of  them,  when  made  to  and  confirmed  by  5§  i9*.  ^ss. ' 

6  said  court,  shall  be  binding  on  the  parties  for  two  years  after  such  con- 

7  firmation,  when  like  proceedings  may  again  be  had  on  petition  of  either 

8  party. 

TRANSPORTATION   OF   MERCHANDISE. 

1  .  Section  204.     A  railroad  corporation  shall,  upon  request,  without  Receipts  to 

2  additional  charge,  give  a  receipt  describing  articles,  packages  or  com-  merchandise. 

3  modities  not  extra  hazardous  delivered  to  it  for  transportation.    A  cor-  1374!  372,' 

4  poration  which  refuses  to  give  such  receipt  shall  forfeit  fifty  dollars  to  i>.^|.'^ii2,  §  is7. 

5  the  person  entitled  thereto.  R.  l.  111,  §  239.  i906,463, 11,  §§  195, 258. 

1  Section  205.     Every  railroad  corporation  shall,  subject  to  the  pro-  Equal  faciii- 

2  visions  of  section  two  hundred  and  eleven,  give  to  all  persons  reasonable  portaUon!"'^' 

3  and  equal  terms,  facilities  and  accommodations  for  the  transportation  Jsylls?! 

4  upon  its  railroad  of  themselves,  their  agents  and  servants,  and  of  their  |.^|*ii2  siss 

5  merchandise  and  other  property  and  for  the  use  of  its  depot  and  other  k.  l.  iii,  §240. 

^i-,   ,.  1  11  ■  1  •  Ml  190b,  403,  II, 

D  buildmgs  and  grounds;    and,  at  any  pomt  where  its  railroad  connects  §§196,258. 

7  with  another  railroad,  it  shall  give  reasonable  and  equal  terms  and  facili-  12s  Mass!  326! 

8  ties  of  interchange.  147  Mass.  35.  255.  165  Mass.  39s.  235  Mass.  199. 

1  Section  206.     The  preceding  section  shall  apply  to  all  persons  en-  Equal  faciii- 

2  gaged  only  in  a  local  express  business  for  the  forwarding  of  express  matter  ex'prlssmen. 

3  between  points  within  the  commonwealth  in  the  trains  or  cars  of  any  §§^/,'6.''^' 

4  railroad  corporation,  and  to  persons  desiring  to  engage  therein  who  ob-  P241  ^^^' 

5  tain  the  recommendation  of  the  department  therefor,  and  who  agree  in  |s''!97*'25s^' 

6  ^\Titing  to  indemnify  the  corporation  against  all  loss  of  and  damage  to  any  les  Mass.  s'gs. 

7  property  carried  by  them  on  its  trains.     Such  recommendation  shall  be  235  m^ss.  199. 

8  given  only  after  notice  to  all  parties  interested  and  a  hearing  thereon,  and 

9  with  regard,  among  other  considerations,  to  the  public  interest.     Such 

10  corporation  may  contract  with,  one  or  more  persons  for  the  express  serv- 

11  ice  over  its  railroad  or  system,  subject  to  the  rights  of  such  persons  as 

12  may  then  be  engaged  in,  or  shall  have  obtained  the  recommendation  afore- 

13  said  to  conduct  such  local  ex-press  business  thereon  between  points  within 

14  the  commonwealth  under  this  section;  and  the  terms,  facilities  and  ac- 

15  commodations  provided  for  such  last  named  persons  shall  not  be  unrea- 

16  sonable  or  unequal,  having  regard  to  the  amount  and  character  of  the 

17  service  and  also  to  such  reasonable  regulation  of  said  business  as  may  be 

18  for  the  public  interest  and  the  efficient  operation  of  the  railroad.     This 

19  section  shall  not  deprive  any  railroad  corporation  of  any  right  which  it  has 

20  under  its  charter  or  under  general  laws,  to  perform  all  the  transportation 

21  of  property  upon  its  railroad. 


1744 


EAILBOADS. 


[CH-VP.    160. 


to  bc'fOT-'''^*'  Section  207.     Every  railroad   corporation   shall   promptly   forward 

warded  merchandise  consigned  to  or  directed  to  be  sent  over  another  railroad 

1859. 209!  §  1.  connecting  with  its  railroad,  according  to  the  directions  contained  thereon 

O    S  6S   §  114  . 

1874. 372,      '  or  accompanying  the  same,  and  shall  not  receive  and  forward  over  its 

p.^s^ii2.  §  189.  railroad  merchandise  consigned  to  or  directed  to  be  sent  by  a  different 

f  242."''  route.                                                                1906, 463,  II,  §§  198,  258. 


1  243, 
1906.  463.  II. 
§§  199,  258. 
124  -Masa.  561, 


fransp?rtation  SECTION  208.  A  railroad  corporation  shall  not  charge  or  receive  for  1 
of  freight.  the  transportation  of  freight  to  any  station  on  its  railroad  a  greater  amount  2 
1S74!  372i  than  is  at  the  time  charged  or  received  for  the  transportation  of  the  like  3 
p.  s.  112.  §  190.  class  and  quantity  of  freight  from  the  same  original  point  of  departure  to  4 
^  '  '^''  a  station  at  a  greater  distance  on  its  railroad  in  the  same  direction.  Two  5 
or  more  railroad  corporations  whose  railroads  connect  shall  not  charge  6 
or  receive  for  the  transportation  of  freight  to  any  station  on  the  railroad  7 
of  either  of  them  a  greater  amount  than  is  at  the  time  charged  or  received  8 
for  the  transportation  of  the  like  class  and  quantity  of  freight  from  the  9 
same  original  point  of  departiu-e  to  a  station  at  a  greater  distance  on  10 
the  railroad  of  either  of  them  in  the  same  direction.  In  construing  this  11 
section,  the  amount  charged  or  received  for  the  transportation  of  freight  12 
shall  include  all  terminal  charges;  and  the  railroad  of  a  corporation  shall  13 
include  all  the  raih-oad  in  use  by  it,  whether  owned  or  operated  under  a  14 
contract  or  lease.  15 


corporation".  Section  209.  A  railroad  corporation  violating  any  provision  of  the 
G^I'Is'Viw  fo^^  preceding  sections,  in  addition  to  liability  for  all  damages  sustained 
1874' 37°'  ^y  reason  of  such  violation,  shall  forfeit  two  hundred  dollars,  to  be  re- 
5 141.  ■  covered  in  tort  to  his  own  use  by  the  party  aggrieved,  or  to  the  use  of 
p. s.'ii2,§  191.  the  commonwealth  by  the  attorney  general  or  the  district  attorney  of 
§244.  '  the  district  where  such  violation  was  committed;  but  no  such  action 
llfoo.^lss"'  shall  be  maintained  unless  brought  within  one  year  after  the  date  of 
such  violation. 


Freight  differ- 
ential against 
Boston  for- 
bidden. 
1912,  725, 

n,  §  7. 


Section  210.  A  railroad  corporation  shall  not,  at  any  time,  charge,  1 
demand  or  receive  a  greater  sum  for  transportation  by  it  of  freight  from  2 
any  point  of  origin,  for  the  same  distances  and  under  like  conditions,  on  3 
any  lines  operated  by  it  or  in  connection  with  it,  to  the  port  of  Boston  4 
for  export  to  foreign  countries,  than  is  at  the  time  received  by  it  for  5 
transportation  of  the  like  class  and  cjuantity  of  freight  to  any  other  port  6 
reached  by  its  lines  for  export  to  foreign  countries;  or  charge,  demand  7 
or  receive,  a  greater  sum  for  transportation  for  the  same  distance  and  8 
under  like  conditions  from  the  port  of  Boston  of  freight  from  foreign  9 
countries  tlirough  said  port  of  Boston  to  any  point  on  any  lines  operated  10 
by  it  or  in  connection  with  it  than  is  at  the  time  received  by  it  for  trans-  11 
portation  of  the  like  class  and  quantity  of  freight  tlu-ough  any  other  port  12 
on  its  lines  to  the  same  point;  provided,  that  if  the  aforesaid  provisions  13 
of  this  section  shall  conflict  with  any  regulations  made  by  act  of  congress  14 
this  section  shall  be  null  and  void  so  far  as  it  conflicts  therewith;  and  15 
provided,  further,  that  notliing  herein  contained  shall  justify  the  charg-  16 
ing  of  the  same  rate  for  freight  for  export  or  import  tlirough  any  other  17 
port  reached  by  its  lines  where  the  mileage  from  the  point  of  receipt  or  18 
delivery  is  less  to  the  port  of  Boston  than  to  the  port  in  question,  in  19 
which  case  the  rate  tlirough  Boston  shall  be  proportionately  less.  20 


Chap.  160.]  railro.u)s.  1745 

1  Section  211.     A  railroad  corporation  shall  not  in  its  charges  for  the  Discrimination 

2  transportation  of  freight  or  in  the  conduct  of  its  freight  business,  make  or  I?te?forbidden. 

3  give  any  undue  or  unreasonable  preference  or  advantage  to  or  in  favor  r**l!  iiif ^^' 

4  of  any  person,  nor  subject  any  person  to  any  undue  or  imreasonable  1906^463,11, 

5  prejudice  or  disadvantage.  227  Mass.  197.  §§  261, 258. 

TRANSPORTATION   OF  MILK. 

1  Section  212.     A  railroad  corporation  shall  not  receive,  forward  or  de-  Transportation 

2  liver  milk  in  large  quantities  over  any  portion  of  its  line,  or  permit  others  isra,  206, 

3  so  to  do,  under  contract,  lease  or  hiring  of  cars  or  otherwise,  without  at  |>^  g.'  112,  §  192. 

4  the  same  time  providing,  as  regards  time,  care  and  preservation  of  the  Jf ^l'  111'  ^ '" 

5  milk  and  the  return  of  the  empty  cans,  equal  facilities  and  advantages  L246. 

n    1}  •     •  !•  T  1     1    !•  •  -n     1  1  1906,463,11, 

6  tor  receiving,  lorwardmg  and  dehvering  milk  bv  the  can  over  the  same  §§  202, 25s. 

.  .  .  .       .  "      .  1910  633   §  1 

7  portion  of  its  line;  nor  without  establishing  a  tariff  for  the  milk  by  the 

8  can  which  is  the  same  rate  which  it  charges  or  receives  as  aforesaid  for 

9  milk  in  large  quantities. 

1  Section  213.     Upon  the  petition  of  one  or  more  persons  who  desire  Tariff  for  miik. 

2  to  forward  milk  by  the  can  over  any  railroad  or  any  portion  thereof,  the  ^^i'ii2.'ii93. 

3  department,  after  notice  to  the  railroad  corporation  and  a  hearing,  shall  ^^l[  l\°i  ^  ^■ 

4  ascertam  and  compare  the  tariff  established  as  aforesaid  for  milk  by  the  1906^463  u 

5  can  with  the  rate  charged  or  received  as  aforesaid  for  milk  in  large  quan-  §§  263, 258. ' 

6  titles  over  such  railroad  or  such  portion  thereof;  and  if  the  former  is,  in  issiiasa!  1.  ' 

7  the  judgment  of  the  department,  higher  than  the  latter,  the  department 

8  shall  revise  said  tariff  and  shall  fix  such  rate  for  milk  by  the  can  as  it  finds 

9  to  be  the  rate  for  milk  in  large  quantities,  including  in  both  cases  the  same 

10  care  and  preservation  of  the  milk  and  the  return  of  the  empty  cans,  as 

11  aforesaid;  and  shall  notify  the  corporation  in  writing  of  the  rate  by  the 

12  can  so  fixed  over  such  railroad  or  such  portion  thereof;  but  the  rates  by 

13  the  can  so  fixed  shall  not  be  liigher  than  the  rates  charged  by  the  same 

14  raUroad  corporation  for  a  longer  distance  on  any  part  of  its  system. 

1  Section  214.     A  raiboad  corporation  which  refuses  or  neglects  to  Penalties. 

2  receive,  forward  or  deliver  milk  by  the  can  over  its  railroad  or  any  portion  p's^'ml'/iM. 

3  thereof  at  the  tariff  rate  therefor,  as  provided  in  the  preceding  section,  ^^l;  fl°-  ^  ^■ 

4  shall  forfeit  to  the  person  tendering  the  same  five  dollars  for  every  can  f9o"{f463  n 

5  of  milk  which  it  so  refuses  to  receive  or  neglects  to  forward  and  deliver  §§  264, 25s. ' 

6  at  the  said  tariff  rate. 

CHANGE   OF  NAME. 

1  Section  215.     On  application  of  any  railroad  corporation,  authorized  change  of 

2  by  a  vote  of  two  thirds  of  the  shares  present  and  voting  at  a  meeting  is9i,'3oo, 

3  called  therefor,  the  department  may,  after  public  notice  and  a  hearing,  isgi.Tas. 

4  authorize  such  corporation  to  change  its  name.        i906,463,ii,  §§223, 25s.  •  109,  §  . 

1  Section  216.     A  certified  copy  of  such  authorization  and  a  certificate  Certificate  of 

2  of  the  vote  of  the  corporation,  signed  and  sworn  to  by  the  president,  fiTedwith 

3  treasurer  and  a  majority  of  the  du-ectors,  shall  be  filed  in  the  office  of  ilg^.'stw,  §  3. 

4  the  state  secretary.     The  department  shall  require  public  notice  to  be  fgofiiM'n*"' 

5  given  of  the  change  so  authorized;  and,  upon  receipt  of  proof  thereof,  the  §§  224, 258. 

6  state  secretary  may  grant  a  certificate  of  the  name  which  the  corpora- 

7  tion  shall  bear,  which,  subject  to  the  provisions  of  section  fourteen,  shall 

8  thereafter  be  its  legal  name. 


1746 


RAILED  ADS. 


[ClL\P.    160. 


Rights  and 
liabilities  under 
new  name. 
1891,  360,  5  4. 
R.  L.  109.  5  11. 
1906.  463.  II, 
55  225,  258. 


Section  217.    A  railroad  corporation  shall  have  the  same  rights,  1 

powers  and  pri^•ileges,  and  be  subject  to  the  same  duties,  obligations  and  2 

liabilities,  under  its  new  name  as  before  its  name  was  changed,  and  may  3 

sue  and  be  sued  by  its  new  name;  but  any  action  brought  against  it  by  4 

its  former  name  shall  not  be  defeated  on  that  account,  and,  on  motion  of  5 

either  party,  the  new  name  may  be  substituted  therefor.  6 


OFFENCES   AND   PENALTIES. 


Walking  on 

track. 

1853,  414.  5  4. 

G.  S.  63.  I  102.       ,    „ 

1874. 372,         dollars 

§  148. 


Section  218.    Whoever  without  right  knowingly  stands  or  walks  1 

on  a  railroad  track  shall  forfeit  not  less  than  five  nor  more  than  fifty  2 

p.  S.  112,  §  195.                                      R.L.  Ill,  §249.  3 
1906,  463,  II.  §§  232,  258.                      145  Mass.  433.                      226  Mass.  522. 


Loitering 

in  station. 

1874.  372, 

5149. 

1878.  180.  §  1. 

P.  S.  112.  §196. 

R.L.  Ill, 

§250. 

1904,  59. 


Section  219.     Whoever  without  right  loiters  or  remains  within  a  1 

station  house  of  a  railroad  corporation,  or  of  the  Boston  Terminal  Com-  2 

pany,  or  upon  the  platform  or  grounds  adjacent  to  such  station,  after  3 

being  requested  to  leave  the  same  by  a  police  officer  or  by  a  railroad  police  4 

officer,  shall  forfeit  not  less  than  two  nor  more  than  twenty  dollars.  5 

1905,  210.  1906.  463.  II.  §§  233.  258. 


Unlawful 
riding  upon 
locomotive. 

1905,  208. 

1906.  463.  II, 
§§  234,  258. 
1909,  233. 


Section  220.  WTioever,  without  right,  rides  or  attempts  to  ride  upon  1 
a  locomotive  engine,  tender,  freight  car,  caboose,  or  other  conveyance  2 
not  a  part  of  a  passenger  train,  upon  a  railroad  or  upon  the  property  3 
of  the  Boston  Terminal  Company,  shall  be  punished  by  a  fine  of  not  4 
more  than  fifty  dollars  or  imprisonment  for  not  more  than  six  months.  5 
A  sheriff,  deputy  sheriff,  constable,  police  officer,  railroad  police  officer,  6 
or  officer  appointed  with  the  powers  of  a  railroad  police  officer,  upon  view  7 
of  such  an  offence,  may,  without  warrant,  arrest  the  offender  and  make  8 
complaint  against  him  therefor.  9 

This  section  shall  not  apply  to  employees  while  in  the  discharge  of  their  10 
duties.  11 


Fees  o^f^officers.      Section  221.     Exccpt  iu  SufTolk  couuty,  the  fees  and  expenses  of  1 

officers  in  the  apprehension,  trial  or  commitment  of  a  person  arrested  2 

or  tried  for  violation  of  the  preceding  section  shall  be  paid  by  the  county  3 

where  the  offence  was  committed.  4 


drhnnl  beasts  Section  222.  Whocvcr,  without  the  consent  of  a  raihoad  corpora- 
R° s'39"'§'85  ^^on,  or  its  agent,  rides,  drives,  or  leads  a  horse,  or  other  beast,  on  the 
G.  s.  S3!  §103.  railroad  opened  for  use  of  such  corporation,  except  in  the  proper  use  of 
P.  s.'ii2,'§  198.'  a  public  or  other  way,  or  of  a  traveled  place  at  a  crossing  of  such  rail- 
§252.  '  road  therewith  upon  the  same  level,  shall  forfeit  not  more  than  one 
§§'235*^25"'     hundred  dollars  and  be  liable  for  any  damage  resulting  therefrom. 


Section  223.     The  person  through  whose  fault  or  negligence  a  horse  1 

or  other  beast  goes  at  large  within  the  limits  of  a  railroad  opened  for  use,  2 

shall  forfeit  not  more  than  twenty  dollars,  and  be  liable  for  any  damage  3 

p.  S.  112,  §  199.          R.  L.  111.  §  253.          1906,  463,  II,  §|  236,  258.  4 


Negligence  in 
permitting 
Deast  on  rail- 
road. 

R.  S.  39,  I  86. 
G.  S.  63,  I  IM.  ...  , ,  » 

1874,372,5152.  resuitiug  thereirom. 


Neglect  to 
close  gates  at 
private 
crossing. 
1862.  123. 
1874.  372, 
§183. 


Section  224.  Whoever  enters  upon  or  crosses  a  railroad  at  a  private 
w^ay  closed  by  gates  or  bars,  and  neglects  to  close  them  securely,  shall 
forfeit  not  less  than  two  nor  more  than  ten  dollars,  and  be  liable  for  any 
damage  resulting  therefrom. 

p.  S.  112,  §200.  R.L.  HI,  §254.  1906,  463,  II,  §§  237,  258. 


CH-'VP.    160.]  RAILRO.'iDS.  1747 

1  Section  225.     ^^1loeve^  maliciously  injures  a  railroad,  or  anj-thing  Malicious 

2  pertaining  thereto,  or  any  materials  or  implements  for  the  construction  rolTet?/*"' 

3  or  use  thereof,  or  aids  or  abets  in  such  trespass,  shall  be  punished  by  a  §;  |  If  |  Jgg 

4  fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  in  jail  P/^^'^^' 

5  for  not  more  than  one  year,  or  both,  and  shall  for  each  offence  forfeit  P-  |  m.  5  201. 

6  to  the  use  of  the  corporation  treble  the  amount  of  damages  which  it  has  §  255. 

7  sustained  thereby.  1906, 463, 11,  §§238,253. 

1  Section  226.     ^^^loeve^  wilfully  obstructs,  or  aids  or  abets  in  ob-  obstructing 

2  structing,  or  wilfully  does  or  causes  to  be  done  anything  with  the  intent  caf.'etc"'^ 

3  to  obstruct,  the  passing  of  an  engine  or  car  upon  a  railroad,  or  wilfully  1350,44' ^ ''' 

4  endangers,  or  aids  or  abets  in  endangering,  or  wilfully  does  or  causes  to  Q^|'g|^' 

5  be  done  anj'thing  with  the  intent  to  endanger,  the  safety  of  persons  con-  fL\''%i''^' 

6  veyed  in  or  upon  the  same,  shall  be  punished  by  a  fine  of  not  more  than  i§  154-157. 

7  one  thousand  dollars  or  by  imprisonment  in  the  state  prison  for  not  more  §§201-204. 

8  than  twenty  years,  or  both,  and  shall  for  each  offence  forfeit  to  the  use  it^Lui; 

9  of  the  corporation  treble  the  amount  of  damages  which  it  has  sustained  1906^4153^  n. 

10   thereby.  lOS  Mass.  53.  109  Mass.  345.  §5  239,  258. 


1  Section  227.     ^^^loever  wilfully  and  maliciously  stops  a  train  on  a  wiUuiiy  stop- 

2  railroad  or  causes  it  to  be  stopped  for  the  purpose  of  entering,  leaving  or  isTg,*!??!' 

3  wantonly  delaj-ing  the  same  shall  be  puni.shed  by  a  fine  of  not  more  than  r.  l.  i il  1 239! 

4  one  hundred  dollars  or  by  imprisonment  for  not  more  than  one  month.      §§'240^158'' 

1  Section  228.     ^\Tioever  unlawfully  uses,  removes  or  tampers  with  Tampering 

2  any  tools  or  appliances  carried  on  the  cars  of  a  railroad  corporation  as  r882,*54,'^§  2. 

3  required  by  section  one  hundred  and  sixty-three  shall  be  punished  by  a  f  2m  "'' 

4  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not  ifsj^g^'  258 

5  more  than  tliree  months,  or  both. 


accidents. 

1  Section  229.     If,  upon  the  trial  of  an  action  against  a  city  or  town,  Liability  to 

2  the  plaintiff  recovers  damages  for  an  injury  to  his  person  or  property  sonai  injuor 

3  caused  by  reason  of  a  defect  in  a  highway,  within  the  location  of  a  rail-  l^iid^^^' 

4  road,  and  if  the  corporation  owning  the  railroad  is  liable  for  such  damages,  ^-  ^  Vn  ^  ^°^" 

5  and  has  had  reasonable  notice  to  defend  the  action,  the  city  or  town  may  fgog"*  ^gj  „ 

6  recover  from  the  corporation  such  damages  and  the  costs  of  both  plain-  §§242,258.' 

7  tiff  and  defendant  in  the  action. 

1  Section  230.     If  an  engineer,  fireman  or  other  agent  of  a  railroad  cor-  Penalty  on  en- 

2  poration  is  guilty  of  negligence  whereby  an  injury  is  done  to  a  person,  he  negligence!'  ^°'^ 

3  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  by  g.'^s.'63,^§95.' 

4  imprisonment  for  not  more  than  twelve  months.  is"4. 372,  §  lei. 

p.  S.  112,  §210.  R.  L.  Ill,  §265.  1906,  463,  II,  §§  243,  258. 

1  Section  231.     \Mioever,   having  the  management   or  control  of  a  Penalty  for 

2  railroad  train  while  being  used  for  the  common  carriage  of  persons,  is  fcnre'in^man- 

3  guilty  of  gross  negligence  in  or  in  relation  to  the  management  or  control  ^f^^'^^"^  °^ 

4  thereof,  shall  be  punished  by  a  fine  of  not  more  than  five  thousand  dollars  ^^^'  i^*;  gg 

5  or  by  imprisonment  for  not  more  than  tliree  years.  1874, 372,  §  162. 

p.  S.  112,  §  211.  R.  L.  Ill,  §  2G6.  1900,  403,  II,  §§  244,  258. 


1748 


BAILROADS. 


[Chap.  160. 


Liability  for 
damages  in 
case  of  col- 
lision at  grade 
crossings,  etc. 
1871.  352. 
1S74,  372, 
5  164. 
1S81,  199, 
§§  2.  5,  6. 
P.  S.  112, 
§213. 
R.  L.  Ill, 
§268. 

1906,  463,  II, 
§§  245,  258. 
120  Mass  372. 
129  Mass.  440. 
133  Masa.  3s3. 
491. 
136  Mass.  6. 

145  Mass.  3.86. 

146  Mass.  241. 
154  Mass.  402, 
524. 


Section  232.  If  a  person  is  injured  in  his  person  or  property  by  col-  1 
lision  with  the  engines  or  cars  of  a  railroad  corporation  at  a  crossing  such  2 
as  is  described  in  section  one  hundred  and  thirty-eight,  and  it  appears  3 
that  the  corporation  neglected  to  give  the  signals  required  by  said  section,  4 
and  that  such  neglect  contributed  to  the  injury,  the  corporation  shall  be  5 
liable  for  all  damages  caused  by  the  collision,  or  to  a  fine  recoverable  by  6 
indictment  as  provided  in  section  three  of  chapter  two  hundred  and  7 
twenty-nine,  or,  if  the  life  of  a  person  so  injured  is  lost,  to  damages  8 
recoverable  in  tort,  as  provided  in  said  section  three,  unless  it  is  shown  9 
that,  in  addition  to  a  mere  want  of  ordinary  care,  the  person  injured  or  10 
the  person  who  had  charge  of  his  person  or  property  was,  at  the  time  11 
of  the  collision,  guilty  of  gross  or  wilfid  negligence,  or  was  acting  in  12 
violation  of  the  law,  and  that  such  gross  or  wilful  negligence  or  unlaw-  13 
ful  act  contributed  to  the  injury.  14 


159  Mass.  493. 
163  Mass.  132. 

172  Mass.  98. 

173  Mass.  136. 
183  Mass.  393. 

186  Mass.  474. 

187  Mass.  84. 


ISS  Mass.  127. 
194  Mass.  181. 
196  Mass.  192,  554. 
200  Mass.  8. 
203  Mass.  453. 
208  Mass.  137,451. 
210  Mass.  179,  305. 


212  Mass.  596. 
220  Mass.  526. 
223  Mass.  444,  550. 
228  Mass.  487. 
230  Mass.  370. 

234  Mass.  415. 

235  Mass.  469. 


Non-liability 
for  acts  of 
ejq)ressmen. 
1894,  469,  §  3. 
R.  L.  Ill, 
§269. 

1906.  463.  II, 
§§  246,  258. 


Section  233.     A  railroad  corporation  shall  not  be  liable  to  any  person  1 

for  personal  injuries  caused  by  the  acts  or  omissions  of  any  persons  or  2 

companies  doing  an  express  business  over  its  railroad  or  of  their  servants  3 

or  agents.  17a  Mass.  464.  201  Mass.  564.  4 


Loss  by  fire 
caused  by 
engine. 
1837,  226, 
§§  9,  10. 
1840,  85,  §  1. 
G.  S.  63,  §  101. 
1864,  229,  §  34. 
1871,381,  §45. 
1874,  372, 
§  106. 

P.  S,  112,  §214. 
1895,  293. 
R.  L.  HI, 
§270. 

1906.  463,  II, 
§§  247,  258. 
13  Met.  99. 
4  Gush.  288. 
16  Gray,  71. 


FIRE.S. 

Section  234.     Every  railroad  corporation  shall  be  liable  in  damages  1 

to  a  person  whose  buildings  or  other  property  may  be  injured  by  fire  2 

communicated  by  its  locomotive  engines,  and  shall  have  an  insurable  in-  3 

terest  in  the  property  upon  its  route  for  which  it  may  be  so  held  liable,  4 

and  may  procure  insurance  thereon  in  its  own  behalf.     If  held  liable  in  5 

damages,  it  shall  be  entitled  to  the  benefit  of  any  insurance  effected  upon  6 

such  property  by  the  owner  thereof,  less  the  cost  of  premium  and  expense  7 

of  recovery.     The  money  received  as  insurance  shall  be  deducted  from  8 

the  damages,  if  recovered  before  they  are  assessed ;  and  if  not  so  recovered,  9 

the  policy  of  insurance  shall  be  assigned  to  the  corporation  held  liable  in  10 

damages,  and  it  may  maintain  an  action  thereon.  11 


2  Allen,  331. 
6  Allen,  87. 
8  AUen,  438. 
98  Mass.  414. 
103  Mass.  583. 
118  Mass.  543. 
121  Mass.  124. 


145  Mass.  129,  132. 
147  Mass.  606. 
169  Mass.  398. 
171  Mass.  245. 
179  Mass.  624. 
181  Mass.  551. 
184  Mass.  150. 


196  Mass.  329. 
208  Mass.  16. 

210  Mass.  465. 

211  Mass.  549. 
213  Mass.  9. 
225  Mass.  538. 
230  Mass.  370. 


Spark 
arresters. 
1907,431,  §  1. 
1919,  350, 
§§  39,  42. 


Section  235.     Every  corporation  operating  a  steam  railroad  shall,  *1 

subject  to  the  approval  of  the  department,  install  and  maintain  a  spark  2 

arrester  on  every  engine  in  its  service  in  which  wood,  coke  or  coal  is  used  3 

as  fuel,  and  shall,  between  April  first  and  December  first  in  each  year,  4 

keep  the  full  width  of  all  of  its  locations  over  which  such  engines  are  oper-  5 

ated,  to  a  point  two  hundred  feet  distant  from  the  centre  line  on  each  6 

side  thereof,  clear  of  dead  leaves,  dead  grass,  dry  brush  or  other  inflam-  7 

mable  material,  and  shall  not  at  any  time  leave  any  deposit  of  fire,  hot  8 

ashes  or  live  coals  upon  its  locations  in  the  immediate  vicinity  of  wood-  9 

lands  or  grass  lands,  and  shall  post  in  stations  and  other  conspicuous  10 

places  within  its  location  and  right  of  way  such  notices  and  warning  11 

placards  as  are  furnished  to  it  for  the  purpose  by  the  state  forester;  pro-  12 


Chap.  160.]  railroads.  1749 

13  vided,  that  this  section  shall  not  prohibit  any  railroad  corporation  from 

14  piling  or  keeping  upon  its  location  or  right  of  way  cross-ties  or  other 

15  material  necessary  for  the  maintenance  and  operation  of  its  railroad. 

1  Section  236.     Any  railroad  corporation  may,  upon  giving  notice  as  clearing  land 

2  herein  provided,  enter  upon  unimproved  land  adjoining  any  location  or  i907',"i3f,'§  2*' 

3  right  of  way  upon  which  it  operates  engines  burning  wood,  coke  or  coal,  *''^'  ^  ^ 

4  and  may  there,  at  its  own  expense  and  subject  to  the  direction  of  the 

5  forest  warden,  or  the  officer  or  board  having  his  powers,  in  the  city  or 

6  town  where  the  land  lies,  clear  such  land  of  dead  leaves,  dead  grass  and 

7  dead  wood  to  a  distance  of  one  hundred  feet  from  the  tracks,  without 

8  thereby  becoming  liable  for  trespass;  provided,  that  no  railroad  corpora- 

9  tion  shall,  under  this  section,  do  any  acts  on  unimproved  land  outside  its 

10  location  or  right  of  way,  unless  it  has  within  two  months  given  fourteen 

11  days'  written  notice  by  mail  or  otherwise  to  the  occupant  of  the  land, 

12  and  to  the  owner  thereof,  if  he  resides  or  has  a  usual  place  of  business  in 

13  the  city  or  town  where  it  lies,  and  if  the  land  is  unoccupied  and  the  owner 

14  does  not  reside  or  have  a  usual  place  of  business  in  the  city  or  town,  then, 

15  unless  the  railroad  corporation  has  within  two  months  published  notice 

16  of  its  purpose  once  in  three  successive  weeks  in  a  newspaper  published 

17  in  the  county  where  the  land  lies,  and  unless  it  has  within  three  days 

18  given  at  least  twenty-four  hours'  notice  to  the  forest  warden,  or  the 

19  officer  or  board  having  his  powers,  in  the  city  or  town  where  the  land 

20  lies  of  the  location  of  the  land  which  it  intends  to  enter  under  this  section, 

21  and  of  the  time  at  which  it  intends  to  enter  the  same;  and  provided,  fur- 

22  ther,  that  no  notice  hereby  required  shall  be  valid  unless  it  sets  forth  the 

23  provisions  of  this  section. 

1  Section  237.    Any  engineer,  conductor  or  other  employee  on  a  train  Engineer,  etc., 

2  discovering  a  fire  burning  uncontrolled  on  lands  adjacent  to  the  tracks  *?  fZ"  °°"°^ 

3  shall  forthwith  cause  a  fire  signal  to  be  sounded  from  the  engine,  which  '^°^'  *^^'  ^  ^■ 

4  shall  consist  of  one  long  and  three  short  whistle  blasts  repeated  several 

5  times,  and  shall  notify  the  next  sectionmen  whom  the  train  passes,  and 

6  the  next  telegraph  station,  of  the  existence  and  location  of  the  fire. 

7  This  section  shall  not  affect  the  authority  conferred  upon  the  department 

8  by  section  one  hundred  and  thirty-nine. 

1  Section  238.    Sectionmen  or  other  employees  of  a  railroad  corporation  Employees  to 

2  receiving  notice  of  the  existence  and  location  of  a  fire  burning  on  land  IreL"*""''' 

3  adjacent  to  the  tracks  shall  forthwith  proceed  to  the  fire  and  shall  use  all  ^^^'  ■*■"•  ^  ^• 

4  reasonable  efforts  to  extinguish  it;   provided,  that  they  are  not  at  the 

5  time  employed  in  labors  immediately  necessary  to  the  safety  of  tracks  or 

6  to  the  safety  and  convenience  of  passengers  and  the  public. 

1  Section  239.     Railroad  corporations  shall  inform  their  employees  as  Employees  to 

2  to  their  duties  under  the  four  preceding  sections  and  shall  furnish  them  and"pfovidrf 

3  with  the  appropriate  facilities  for  reporting  and  extinguishing  such  fires,  g^^'j  '^^^^"^ '" 

1907,  431,  §  5. 

1  Section  240.     The  five  preceding  sections  shall  not  authorize  any  Railroad  not 

2  railroad  corporation  to  enter  upon,  or  to  interfere  in  the  management  park!"'' ""'''''' 

3  or  care  of,  any  public  park  or  reservation.  1907,431,  §  6. 


1750 


RAILROADS. 


[Chap.  160. 


Liability  to 
city  or  town 
for  fire. 
1909,  394. 


Section  241.    Any  railroad  corporation  which,  by  its  servants  or  1 

agents,  negligently,  or  in  violation  of  law,  sets  fire  to  grass  lands  or  forest  2 

lands  shall  be  liable  to  any  city  or  town  where  such  fire  occurs,  for  the  3 

reasonable  and  lawful  expense  incurred  by  such  city  or  town  in  the  4 

extinguishment  of  the  fire.  5 

Cities  and  towns  may  recover  in  contract  in  the  superior  court  sums  to  6 

which  they  are  entitled  under  this  section.  7 


Booka,  ac- 
counts and 
annual  returns. 
R.  S.  39,  §  82. 

1837,  226,  §  5. 

1838,  99.  §  2. 
1841,  69. 
1849,  191, 
§§1,4. 
1851,  102, 
§§1.2. 
1854,  423. 

1856,  165. 

1857,  40, 
§§5,6;  168: 
240,  §  2. 

1858,  46,  §  S. 
G.  S.  63, 

§§  132-135. 

1862,  135, 
§§1,2. 

1863,  224. 

1864,  167,  §  4. 

1869,  419. 

1870,  307, 
§  1;383. 
1871,381,  §52. 

1873,  194. 

1874,  372. 
§§  171,  174. 
1876,  173; 
185.  §  I. 

P.  S.  112, 
§§81,84. 
1889.  328,  §  1. 
R.  L.  Ill, 
§§  83,  87. 
1906,  463, 
IL  §§  248,  258. 

1909.  502. 

1910,  558. 
1917,  122. 
§§  1,  3,  5. 


BOOKS  AND  RETURNS. 

Section  242.  A  railroad  corporation  shall  at  all  times  submit  its  1 
books  to  the  inspection  of  any  committee  of  the  general  court  authorized  2 
to  inspect  them.  The  directors  of  every  railroad  corporation  shall  annu-  3 
ally  within  the  time  prescribed  by  section  thirty-two  of  chapter  one  4 
hundred  and  fifty-nine  transmit  to  the  department  a  return  of  the  cor-  5 
poration  for  the  year  ending  on  December  thirty-first  preceding  which  6 
shall  be  sworn  to  by  the  treasurer  and  the  chief  accounting  officer  of  the  7 
corporation.  Such  return  shall  state  whether  any  fatal  accident  or  8 
serious  injury  has  occurred  to  a  passenger  or  other  person  upon  the  rail-  9 
road  during  the  year,  and,  if  so,  the  cause  of  such  accident  or  injury  and  10 
the  circumstances  under  which  it  occurred;  shall  set  forth  copies  of  all  11 
contracts  or  leases  made  with  other  railroad  corporations  during  the  year,  12 
and  specify  the  receipts  and  expenditures  under  the  same;  and  shall  in-  13 
elude  a  detailed  statement  of  all  particulars  relative  to  the  railroad,  its  14 
business,  receipts  and  expenditures  during  the  year,  in  the  form  to  be  pre-  15 
scribed  by  the  department  under  said  section  thirty-two.  The  books  16 
of  each  corporation  shall  be  so  kept  that  returns  may  be  made  in  exact  17 
conformity  with  the  form  so  prescribed;  and  the  accounts  shall  be  closed  18 
on  December  thirty-first  in  each  year,  so  that  a  balance  sheet  of  that  19 
date  can  be  taken  therefrom  and  included  in  the  return.  Every  railroad  20 
corporation,  neglecting  to  make  said  annual  return  within  the  time  pre-  21 
scribed  as  aforesaid,  or  to  amend  said  return  within  fifteen  days,  when  22 
required  by  the  department  as  provided  in  said  section  thirty-two,  shall  23 
forfeit  fifty  dollars  for  each  day  during  which  such  neglect  continues;  24 
and  if  such  corporation  unreasonably  refuses  or  neglects  to  make  said  25 
return,  it  shall  forfeit  not  more  than  five  thousand  dollars.  26 


Quarterly 

returns. 

1889,  241. 

1893,  131. 

R.  L.  Ill,  §85. 

1906,  463, 

IL  §§  249.  258. 


Section  243.     Every  railroad  corporation  shall,  within  fifty  days  after  1 

the  expiration  of  each  quarter  of  the  year,  transmit  to  the  department  a  2 

quarterly  statement  of  its  business  and  financial  condition,  in  such  form  3 

and  with  such  detail  as  the  department  requires,  which  shall  at  reasonable  4 

times  be  open  to  public  inspection.     A  railroad  corporation  neglecting  to  5 

comply  with  this  section  shall  forfeit  fifty  dollars  for  each  day  during  6 

which  such  neglect  continues.  7 


Lessee  of  road 
to  make  re- 
turns required 
of  lessor, 
1864,  167,  §  3. 
1867,  127. 
1874,  372. 
§  173. 

P.  S.  112,  §  83. 
R.  L.  Ill,  §86. 
1906.  463, 
XL  §§  250,  258. 


Section  244.     Every  railroad  corporation  shall,  during  the  continu-  1 

ance  of  any  lease  which  it  has  taken  of  the  railroad  of  another  corpora-  2 

tion,  make  all  the  returns  required  of  the  lessor;   and  during  the  con-  3 

tinuance  of  such  lease,  the  lessor  shall  not  be  required  to  make  such  4 

returns,  if,  when  requested  by  the  lessee,  the  lessor  furnishes  all  the  in-  5 

formation  in  its  possession  needed  to  make  such  returns;   but  if  a  rail-  6 

road  in  this  commonwealth  is  leased  to  a  lessee  in  another  state,  the  7 

lessors  in  this  commonwealth  shall  make  the  annual  return.  8 


Chap.  160.]  railroads.  1751 


RAILROADS   FOR  PRFVATE   USE. 

1  Section  245.     A  person  or  corporation  may  construct  a  railroad  for  Railroads  for 

2  private  use  in  the  transportation  of  freiglit;   but  shall  not  take  or  use  isnlMr'^" 

3  lands  or  other  property  therefor  without  the  consent  of  the  owner  thereof.  §§^n|'i"76. 

4  No  such  railroad  shall  be  connected  with  the  railroad  of  another  corpora-  |'j|23'224 

5  tion  without  its  consent;   nor  shall  it  be  constructed  across  or  upon  a  ?;,^g^^^' 

6  public  wav  or  traveled  place  without  the  consent  of  the  board  of  alder-  i9ob,'463, 

.  jj   KR  251   25S 

7  men  or  selectmen,  nor  except  in  a  place  and  manner  approved  by  them.  is'eMass.'isg." 

8  If  the  board  of  aldermen  or  selectmen  consent,  they  shall  from  time  to  ^'^' 

9  time  make  such  regulations  relative  to  motive  power,  rate  of  speed, 

10  and  time  and  manner  of  using  the  railroad  over  and  upon  such  way  or 

11  traveled  place,  as  in  their  judgment  the  public  safety  and  convenience 

12  require,  and  they  may  order  such  changes  to  be  made  in  the  track  as  are 

13  rendered  necessary  by  the  alteration  or  repair  of  such  way.    If  they  allow 

14  steam  power  to  be  used  on  such  railroad,  the  provisions  of  this  chapter 

15  and  chapter  one  hundred  and  fifty-nine  relative  to  the  crossing  of  ways 

16  and  traveled  places  by  railroad  corporations  shall  apply  to  such  rail- 

17  road,  and  to  the  person  constructing  or  operating  the  same. 

1  Section  246.     If  the  consent  of  the  department  is  required  for  the  Regulation  of 

2  crossing  of  a  way  or  traveled  place  by  a  railroad  for  private  use,  it  may  iSa'sll. 

3  limit  the  number  of  tracks,  and  may  impose  other  conditions  relative  to  f  286."^' 

4  the  use  of  the  crossing  by  said  raihoad,  and  may  modify  such  limitations  ji°5§^2M,  258. 

5  and  conditions.    The  department  may,  upon  the  complaint  of  any  party  q  ^\^g' 

6  interested,  or  upon  its  own  motion,  exercise  supervisory  powers  over  all  (i9i9)  n*- 

7  railroads  for  private  use  with  regard  to  the  character  and  condition  of 

8  the  roadbed,  tracks,  crossings,  rolling  stock,  machinery,  equipment  and 

9  appliances  used  in  or  in  connection  with  the  operation  of  such  railroads, 

10  so  far  as  is  reasonable  and  expedient  to  promote  the  security  of  persons 

11  employed  in  the  maintenance  and  operation  of  the  same  and  of  the 

12  public. 

corporations  to  construct  railroads  in  foreign  countries. 

1  Section  247.     Fifteen  or  more  persons,  a  majority  of  whom  are  in-  Corporations  to 

2  habitants  of  this  commonwealth,  may  associate  themselves  by  a  written  roadsTn'fore'ign 

3  agreement  of  association,  with  the  intention  of  forming  a  corporation  to  Jlre^Sn.  5 1. 

4  construct  and  operate  a  railroad,  or  railroad  and  telegraph,  in  any  foreign  ^  |;  Yn  ^  "^^' 

5  country,  but  in  accordance  with  the  laws  of  such  country;   and,  upon  L?,|^-^p3 

6  complying  with  section  two  hundred  and  forty-nine,  shall,  with  their  ii,^§§  253. 253. 

7  associates  and  successors,  be  a  corporation  for  the  piu-pose  aforesaid, 

8  with  the  powers  necessary  and  incident  thereto,  and  with  such  powers 

9  and  privileges,  and  subject  to  such  duties,  liabilities  and  restrictions, 

10  as  to  the  location,  construction,  maintenance  and  operation  of  its  rail- 

11  road,  or  railroad  and  telegraph,  and  the  transfer  of  its  property  by 

12  mortgage,  lease  or  otherwise,  as  may  be  fi.xed  by  such  country. 

1  Section  248.     The  agreement  of  association  shall  state :  Agreement  of 

2  (a)  That  the  subscribers  thereto  associate  themselves  with  the  in-  isrg,  274,  §  2. 

3  tention  of  forming  a  railroad  corporation,  or  a  railroad  and  telegraph  r.l.Vu,  ^^  ' 

4  corporation.  fflol%63. 

5  (6)  The  corporate  name  assumed.  "•  5§  254. 258. 


1752 


RAILRO.UJS. 


[ClLU".    160. 


(c)  The  termini  of  the  railroad,  or  the  railroad  and  the  telegraph.  6 

(d)  The  total  amount  of  the  capital  stock  of  the  corporation.  '7 

(e)  The  names  and  residences  of  at  least  five  persons,  who  shall  be  8 
subscribers  to  the  agreement  of  association,  to  act  as  directors  until  9 
others  are  chosen  and  qualified  in  their  stead.  10 

Each  associate  shall  subscribe  to  the  agreement  of  association  his  name,  11 
residence,  post  ofiice  address,  and  the  number  of  shares  of  stock  which  12 
he  agrees  to  take;  but  no  subscriber  shall  be  bound  to  pay  more  than  13 
ten  per  cent  of  the  amount  of  his  subscription,  unless  a  corporation  is  14 
chartered.  15 


Certificate  of 
compliance 
with  require- 
ments. 

1879,  274,  §  3. 
P.  S.  112,  §227. 
R.  L.  Ill, 
§283. 
1906.  463, 
II,  §§  255,  258. 


Section  249.     'NMien  it  is  shown  to  the  satisfaction  of  the  depart-  1 

ment  that  the  requirements  of  the  two  preceding  sections  have  been  2 

complied  Mith,  the  clerk  of  the  department,  upon  its  order,  shall  annex  3 

to  the  agreement  of  association  a  certificate  setting  forth  that  fact.    The  4 

directors  shall  thereupon  file  the  agreement  of  association  and  certificate  5 

in  the  office  of  the  state  secretary,  who,  upon  receipt  of  fifty  dollars,  shall  6 

receive  and  preserve  the  same  in  form  convenient  for  reference  and  open  7 

to  public  inspection;  and  shall  thereupon  issue  a  certificate  of  incorpora-  8 

tion  substantially  in  the  following  form:  9 


Commonwealth  of  Massachusetts. 

Be  it  known,  that  whereas  (names  of  the  subscribers  to  the  agreement  of 
association)  have  associated  themselves  with  the  intention  of  forming  a  cor- 
poration, under  the  name  of  the  (name  of  the  corporation),  for  the  purpose  of 
locating,  constructing,  maintaining  and  operating  a  railroad  (or  railroad  and 
telegraph)  (description  of  the  railroad  or  railroad  and  telegraph  as  in  the  agree- 
ment of  association),  and  have  comphed  with  the  statutes  of  this  commonwealth 
in  such  cases  made  and  provided:  Now,  therefore,  I,  ,  secretary 

of  the  commonwealth  of  Massachusetts,  do  hereby  certify  that  the  persons  afore- 
said, their  associates  arid  successors,  are  legally  established  as  a  corporation,  under 
the  name  of  the  (name  of  the  corporation),  with  all  the  powers  and  pri\dleges, 
and  subject  to  all  the  duties,  liabilities  and  restrictions,  set  forth  in  the  general 
laws  apphcable  to  such  corporations. 

In  witness  whereof,  I  have  hereunto  subscribed  my  official  signature,  and 
affixed  the  great  seal  of  said  commonwealth,  this  day  of  , 

in  the  year 

The  state  secretary  shall  sign  the  certificate  of  incorporation  and  cause  10 

the  great  seal  of  the  commonwealth  to  be  thereto  affixed,  and  such  cer-  11 

tificate  shall  have  the  force  and  effect  of  a  special  charter.    The  state  sec-  12 

retary  shaU  also  cause  a  record  of  the  certificate  of  incorporation  to  be  13 

made,  and  such  certificate,  or  such  record,  or  a  certified  copy  thereof,  14 

shall  be  conclusive  e\adence  of  the  existence  of  such  corporation.  15 


r«iuctfon°of          Section  250.     The  corporation  may  from  time  to  time,  at  a  meeting  1 

capital  stocky     of  dLrectors  called  therefor,  reduce  the  amount  of  the  capital  stock,  or  2 

p.  s.  112.  §  228.  increase  it  tor  the  purpose  of  constructing  and  equipping  its  railroad  and  3 

extensions  or  branches  thereof.    If  such  increase  or  reduction  is  made,  a  4 

certificate  of  the  fact,  signed  by  the  president  of  the  corporation,  shall,  5 

witliin  thirty  days  thereafter,  be  filed  in  the  office  of  the  state  secretary.  6 

Such  corporation  may,  by  vote  at  a  meeting  of  its  directors,  purchase,  7 

acquire  or  lease  the  property,  stocks,  bonds  or  securities  of  any  railroad  8 

corporation  whose  line  is  located  in  the  foreign  country  named  in  the  9 

original  agreement  of  association  of  such  corporation  or  any  amendment  10 


R.  L.  ill 

5  284. 

1904,  169,  §  1. 

1906,  463, 

II,  §§  256,  258, 


Chap.  160.]  railroads.  1753 

11  thereof  made  as  hereinafter  provided,  or  of  any  steamship  company  as- 

12  sociated  in  transportation  or  business  with  such  corporation,  upon  such 

13  terms  and  for  such  consideration  as  siiall  be  determined  by  such  vote,  and 

14  in  like  manner  may  appoint  an  executive  committee  from  the  members  of 

15  its  board,  and  delegate  to  such  committee  such  power  and  authority  as 

16  by  such  vote  shall  be  provided,  and  in  like  manner  may  divide  the  di- 

17  rectors  into  classes  as  nearly  equal  as  possible  for  the  prescribed  number 

18  of  classes,  and  prescribe  the  tenure  of  office  of  the  several  classes,  but  no 

19  class  shall  be  elected  for  a  shorter  period  than  one  year  or  for  a  longer 

20  period  than  five  years,  and  the  term  of  office  of  at  least  one  class  shall 

21  expire  at  the  next  annual  meeting  and  thereafter  at  the  end  of  each  year, 

22  and  at  each  annual  meeting  after  such  division  directors  shall  be  elected 

23  only  to  fill  the  place  of  those  whose  terms  of  office  shall  then  expire  as 

24  so  provided  and  shall  hold  office  for  the  period  so  prescribed,  and  all 

25  directors  shall  hold  office  until  their  successors  are  chosen  and  qualified; 

26  and  such  corporation  may,  by  vote  at  an  annual  or  a  special  meeting  of 

27  its  stockholders,  called  therefor,  amend  its  agreement  of  association  to 

28  provide  for  constructing  and  operating  a  railroad  in  any  other  foreign 

29  countries  in  accordance  with  the  laws  of  such  countries,  and  shall  file 

30  such  amendment  in  the  office  of  the  state  secretary  and  pay  liim  fifty 

31  dollars,  and  thereupon  such  corporation  shall  have  the  same  powers 

32  and  privileges,  and  be  subject  to  the  same  duties,  liabilities  and  restric- 

33  tions,  in  all  respects,  as  if  its  agreement  of  association  had  originally 

34  contained  such  amendment. 

1  Section  251.     Such  corporation  shall  be  subject  to  sections  twenty-  statutes 

2  nine  to  forty,  inclusive,  and  sixty-five,  except  as  otherwise  provided  in  corporatwn"'^ 

3  the  four  preceding  sections. 

1879,  274,  §§  5,  6.  R.  L.  Ill,  §  285.  1906,  463,  II.  §§  257,  258. 

P.  S.  112,  §  229.  1904,  169,  §  2.  192  Mass.  129. 

1  Section  252.     The  supreme  judicial  court  shall  have  jurisdiction  in  Enforcement. 

2  equity  on  petition  of  the  attorney  general,  of  the  railroad  corporation,  isss!  .350! 

3  of  any  public  body  or  of  any  other  party  interested  to'compel  the  observ-  g.  I'.  63, 

4  ance  of  and  to  restrain  the  violation  of  all  laws  which  govern  railroad  is74t'i22';^372, 

5  corporations  and  of  all  orders,  rules  and  regulations  made  in  accordance  H^-  **•  ^°^' 

6  with  the  provisions  of  this  chapter  by  any  public  body  or  by  the  depart-  J|^s.  219. 

7  ment  and  to  review,  annid,  modify  or  amend  the  rulings  of  any  state  ifsi,  iii!  §  4- 

8  department  relative  to  such  corporations  as  law  and  justice  may  require.  p!s.  112, 

9  The  superior  court  shall  have  such  jurisdiction  concurrent  with  the  ii8!'i2o!\36, 

10  supreme  judicial  court  to  enforce  the  provisions  of  sections  forty-eight,  }^,'222,  §  2. 

11  one  hundred  and  ninety-three  and  two  hundred  and  six.  i^^'  i'"'  §  ^■ 

1891,  129.  1906,  463,  II,  §§  C7,  71, 

1894,  462,  §  3;  469,  §  5.  82,  103,  105,  106,  108.  118,  152, 

R.  L.  109,  §  27;  111,  §§  88.  153,  166,  160,  189,  197,  258. 

98,  120,  122,  123,  125,  141,  1907,  5S5,  §  10. 

193,  194,  197,  202,  233,  241.  1913,  784,  |  16. 

REFERENCES. 

General  provisions  applicable  to  all  corporations,  Chap.  155. 
General  provisions  relative  to  common  carriers,  Chap.  159. 


1754 


STREET  RAILWAYS. 


[Chap.  ICl. 


CHAPTER    161 

STREET   RAILWAYS. 


Sect. 

matter  of  construction. 

1.  Definitions. 

2.  Companies  subject  to  this  ihapter. 

FORMATION. 

3.  Formation  of  street  railway  company. 

4.  Agreement  of  association. 

5.  Clerk  and  treasurer.     Vacancies. 

6.  Publication  of  agreement  of  associa- 

tion. 

7.  Location. 

8.  Certificates  to  be  presented  to  depart- 

ment. 

9.  Certificate  of  incorporation. 

ORGANIZATION. 

10.  First  meeting  of  incorporators. 

11.  Organization. 

OFFICERa. 

12.  Officers. 

13.  Election  of  officers. 

MEETINGS. 

14.  Meetings  of  stockholders. 

15.  Special  meetings. 

16.  Voting  rights  of  company  upon  its  own 

stock. 

17.  Voting  rights  of  stockholders;  proxies. 

18.  Meetings  of  directors. 

CAPITAL    STOCK    AND    BONDS. 

19.  Stock  certificates. 

20.  Shares  to  be  issued  at  par. 

21.  Assessments  upon  capital  stock. 

22.  Collection  of  assessments. 

23.  Subscriptions  to  full  capital  stock  and 

payment  of  fifty  per  cent  before  con- 
struction. 

24.  Liability  of  directors  before  stock  paid 

in. 

25.  Increase  of  capital  stock  and  issue  of 

bonds  for  certain  purposes. 

26.  Increase  of  stock  and  issue  of  bonds  to 

provide  working  capital. 

27.  Reduction  of  capita!  stock. 

28.  Issue  of  capital  stock,  bonds,  coupon 

notes   and   other   evidences   of   in- 
debtedness. 

29.  Limit  of  issue  of  bonds,  coupon  notes 

and    other  evidences   of   indebted- 
ness. 

30.  Enforcement. 

31.  Penalties. 

32.  Issue  of  preferred  stock. 


Sect. 

33.  Exchange  of  common  for  preferred. 

34.  Form  of  certificates,  etc. 

35.  Preferred  stock;   voting  powers,  issue, 

etc. 


STOCK   AND    SCRIP   DIVIDENDS. 

36.  Stock  and  scrip  dividends  forbidden. 

37.  Liability  of  directors. 


CORPORATE    POWERS. 

38.  Powers  to  cease  if  railway  is  not  built 

within  eighteen  months  after  date  of 
incorporation,  unless,  etc. 

39.  Extension   of  corporate  authority  to 

operate  railway. 

40.  Connecting  location. 

41.  Real  and  personal  estate;    stock  and 

bonds  of  other  street  railway  com- 
panies. 

42.  Pleasure  resorts. 

43.  Motive  power. 

44.  May  acquire  and  use  motor  cars. 

45.  Power  to  manufacture  and  transmit 

electricity. 

46.  Connecting  companies.     Joint  use  of 

tracks. 

47.  Regulation  of  interchange  of  traflic  and 

cars. 

48.  Use  of  raUroad  tracks. 

49.  Street  sprinkling  cars. 

50.  Gravel,  etc.,  cars. 

51.  Coal  and  other  supplies. 

52.  Carriers  of  mail. 

53.  Companies  may  become  common  car- 

riers of  freight,  etc. 


54.  Private  land. 

55.  Location  by  purchase  or  lease  on  pri- 

vate land. 

56.  Regulation  of  location  by  purchase  or 

lease  on  private  land. 

57.  Law  applicable  to  locations  on  private 

land. 

58.  Location  by  eminent  domain  on  pri- 

vate land. 

59.  Same  subject. 

60.  Same  subject. 

61.  Same  subject. 

LEASE    OR    SALE    OF    RAILWAY. 

62.  Railway  not  to  be  leased  or  sold,  ex- 

cept, etc. 

63.  Sale  or  consolidation. 


Ch.\p.  161.] 


STREET  EAILWAYS. 


1755 


Sect. 

64.  Increase  of  capital  stock,  and  issue  of 

bonds. 

65.  Powers  and  duties  of  consolidated  com- 

pany. 

66.  Operating  contracts  and  leases. 

67.  Powers  under  contracts  or  leases. 

68.  Proceeds  of  sale  not  to  be  used  for  divi- 

dends. 

69.  Purchase  of  connecting  lines. 

EXTENSION    OF    LOCATION. 

70.  Extension  of  location. 

ALTERATION    OF    LOCATION.       ^ 

71.  Alteration  of  location. 

TEMPORARY    LOCATIONS. 

72.  Temporary  locations. 

73.  Same  in  case  of  the  alteration,  etc.,  of 

bridges. 

74.  Application  to  department. 

75.  Termination  of  temporary  location. 

76.  Cost  of  temporary  tracks  reckoned  as 

part  of  expense  of  alteration  of  grade 
crossing. 

BEVOCATION    OF    LOCATION. 

77.  Revocation  of  location. 

WIDENINO    OF   PUBLIC    WAT. 

78.  Public  way  widening. 

79.  Alteration  or  change  in  grade  of  public 

way. 

80.  Betterments. 

STATE    HIGHWAYS. 

81.  Location  upon  state  highways. 

82.  Supervision  by  the  division  of  high- 

ways. 

OPERATION. 

83.  Opening  for  use  conditional  upon  cer- 

tificate of  department. 

84.  Rules  as  to  rate  of  speed,  etc. 

85.  Clearing  snow  from  tracks. 

86.  Voluntary   discontinuance   of   use    of 

tracks. 

87.  Temporary  discontinuance  of  use  of 

tracks. 

88.  Taking  up.  alteration  or  discontinu- 

ance of  ways. 

89.  Repair  of  ways  and  bridges. 

90.  Liability    of    company    for    defective 

ways  and  bridges. 

91.  Guards  upon  bridges  and  draws. 

92.  Cars  to  stop  at  railroad  crossings. 

93.  Notice  of  approach  of  cars. 

94.  Obstruction  of  tracks. 

95.  Loitering  within  stations,  etc. 

96.  Obstruction  of  ways  by  companies. 

97.  Sales  by  children  upon  cars. 

98.  Fenders,    wheel    guards,    brakes    and 

emergency  tools. 


Sect. 
99.  Emergency  lifting  jack. 

100.  Heating  of  cars. 

101.  Enclosed  platforms. 

102.  Penalty. 

103.  Day's  work  of  employees. 


fares  and    ACCOMMODATIONS. 


104. 
105. 
106. 


Reasonable  accommodations. 
Additional  accommodations. 
Companies  shall  not  require  passengers 

riding  on  platform  to  do  so  at  their 

own  risk. 

107.  Special  service  cars,  free  passes, 

108.  Special  rates  for  school  pupils. 
Regulation  of  fares. 
Withdrawal  of  free   checks   and 

transfers. 
Public  notice  of  change  of  service. 
Notice  to  cities  and  towns  of  proposed 

changes  in  street  railway  rates. 
Penalty  for  misuse  of  transfer  checks. 
Transportation  of  milk  and  cream. 


109 
110 


111 
112 


113 
114, 


etc. 


free 


SERVICE    AT   COST. 

115.  Companies   may    provide    service    at 

cost. 

116.  What    included    in    cost    of    service. 

Definitions. 

117.  Reserve  fund. 

118.  Unfunded  debt.     Interest  charges. 

119.  Use  of  reserve  fund. 

120.  Schedules  of  grades  of  fare.    Approval 

and  modification. 

121.  Changes  in  grades  of  fare. 

122.  Improvement  fund. 

123.  Obligation  of  company  to  sell  to  state 

or  municipality. 

124.  Appointment  of  directors  by  governor. 

125.  Reports   by  companies.     Supervision 

and  investigation  by  department. 

126.  Acceptance  of  act  by  companies. 

127.  Disposing  of  useless  property. 

128.  Revising  orders  of  department. 

RAILROAD    CROSSINGS. 

129.  Abolition  of  grade  crossings. 

130.  Construction  of  tracks  outside  public 

ways. 

131.  Structures    within    limits    of    public 

ways  or  state  highways. 

CHANGE    OF    NAME. 

132.  Change  of  name. 

133.  Certificate  of  change  to  be  filed  with 

state  secretary. 

134.  Rights  and  liabilities  under  new  name. 

B.tLE    BY    RECEIVERS. 

135.  Sale  of  railway  by  receivers. 

136.  Agreement  of  association  of  new  com- 

pany. 

137.  Organization. 


1756 


STREET   RAILWAYS. 


[Chaf.  161. 


Sect. 

books,  beturn3  and  reports. 

138.  Books  and  returns. 

139.  Tables  and  abstracts  of  reports. 

140.  Lessee  of  street  railway  to  make  same 

report  to  lessor. 

141.  Records  of  proceedings  before  depart- 

ments, etc. 

ADDITION,\I.    REMEDY. 

142.  Enforcement  of  laws. 


TRANSPORT.ITION   AREAS. 

143.  Establishment  of  transportation  area. 

144.  Preliminary  agreement. 

145.  Acceptance  by  voters. 


Sect. 

146.  Trustees,  appointment,  compensation. 

147.  Powers. 

148.  Officers  of  board,  etc. 

149.  Taking  of  street  railway. 

150.  Contribution  by  cities  and  towns. 

151.  Finances. 

152.  Borrowing  by  cities  and  towns. 
Extension  of  lines,  etc. 
Exclusion  of  city  or  town  from  trans- 
portation area,  etc. 

Rentals,  etc. 

Fare  zones  and  fares. 

157.  Termination  of  lease,  etc. 

158.  Taxation. 

159.  Boston  Elevated  Railway  not  affected 

by  sections  143  to  158. 

160.  Cities  and  towns  which  acted  under 

1920,  599. 


153 

154, 


155. 
156. 


Definitions. 
1874,  372,  §  2. 
P.  S.  112,  §  1. 
1892.  110. 
1S98,  S78,  §  1. 
R.  L.  Ill,  5  1. 
1906,  463, 
III.  §  1. 
178  Mass.  300. 
196  Mass.  329. 
200  Mass.  551. 
227  Mass.  547. 


MATTER  OF  CONSTRUCTION. 

Section  1.     In  this  chapter,  unless  the  context  otherwise  requires,  the  1 

following  words  shall  have  the  following  meanings :  2 

"Board  of  aldermen",  or  "selectmen",  includes  the  board  or  other  3 

authority  exercising  the  powers  of  a  board  of  aldermen  or  of  selectmen,  4 

but  nothing  in  this  chapter  shall  affect  the  veto  power  of  a  mayor  of  a  5 

city.                                                                                                         '  6 

"Company",  a  street  railway  company.  7 

"Department",  department  of  public  utilities.  8 

"Extension",  any  railway  constructed  by  a  street  railway  company  9 

in  a  city  or  town  in  addition  to  that  authorized  by  its  original  location  10 

therein.  11 

"Location",  as  applied  to  a  street  railway,  the  grant  to  a  street  rail-  12 

way  company  of  the  right  to  construct,  maintain  and  operate  a  street  1.3 

railway  in  a  public  way  or  place.  14 

"Original",  as  applied  to  a  street  railway  location  in  a  city  or  town,  15 

the  first  location  granted  to  the  company  in  such  city  or  town.  16 

"Public  way",  any  way  laid  out  by  public  authority.  17 

"Street  railway"  or  "railway",  a  railway,  including  poles,  wires  or  18 

other  appliances  and  equipment  connected  therewith,  of  the  class  oper-  19 

ated  by  motive  power  other  than  steam,  and  usually  constructed  upon  20 

public  ways  and  places.  21 


Companies 
Bubject  to 
this  chapter. 
1864,  229, 
§§  1,  44. 
1871,  381, 
5§  1,  58. 
1874,  29,  §  1. 
P.  S.  113.  §  1. 
R.  L.  112,  §  1. 
1906.  463, 
III,  §J  2,  158. 


Section  2.     Street  railway  companies  shall  be  subject  to  this  chapter  1 

and  chapter  one  hundred  and  fifty-nine.     Companies  which  have  been  2 

specially  chartered  shall  continue  to  exercise  and  enjoy  the  powers  and  3 

privileges  granted  and  be  subject  to  all  the  liabilities  imposed  by  their  4 

respecti\-e  charters,  except  as  modified  and  controlled  by  amendments  5 

thereof,  or  by  this  chapter  or  chapter  one  hundred  and  fifty-nine.     All  6 

street  railway  companies  whether  organized  under  general  or  special  laws  7 

shall  be  subject  to  any  other  general  laws  applicable  thereto.  8 


FORMATION. 

ftreeTr^way        SECTION  3.     Fifteen  or  more  persons  may  associate  themselves  by  a     1 
™™pi^°y-         ■ftTitten  agreement  of  association  with  the  intention  of  forming  a  company.     2 

p.  S.  113,  §2.  R.  L.  112,  §2.  1906,  463,  III,  §§  3,  158. 


Chap.  161.]  street  railways.  1757 

1  Section  4.    The  agreement  of  association  shall  state:  Agreement  of 

2  (a)  That  the  subscribers  thereto  associate  themselves  with  the  inten-  ises.'lo'™' 

3  tion  of  forming  a  street  railway  company.  Uni  slf.  1 27! 

4  (6)  The  corporate  name  assumed,  which  shall  be  one  not  in  use  by  any  §f'|;|,®7. 

5  other  such  company  in  the  commonwealth,  or,  in  the  Judgment  of  the  p^g^'i\°'- 

6  department,  so  similar  thereto  as  to  be  likely  to  be  mistaken  for  it,  and  §§  3, 4   ' 

7  which  shall  contain  the  words,  "street  railway  company",  at  the  end  112,  §§3.'4. 

0  _,!  j»  1906,  463, 

8  tnereor.  in,  §§  4,  iss. 

9  (c)  The  termini  of  the  railway. 

10  (d)  The  length  of  the  railway,  as  nearly  as  may  be. 

1 1  (e)  The  name  of  each  county,  city  and  town  where  the  railway  is  to  be 

12  located. 

13  (/)  The  gauge  of  the  railway,  which  shall  be  four  feet  eight  and  one  half 

14  inches. 

15  (g)  The  total  amount  of  the  capital  stock  of  the  company,  which  shall 

16  be  not  less  than  ten  thousand  dollars  for  each  mile,  unless  the  railway  is 

17  to  be  wholly  outside  of  a  city,  in  which  case  said  stock  shall  be  not  less 

18  than  five  thousand  dollars  for  each  mile. 

19  (h)  The  par  value  of  the  shares,  which  shall  be  one  hundred  dollars. 

20  (i)  The  names  and  residences  of  at  least  five  persons,  who  shall  be  sub- 

21  scribers  to  the  agreement  of  association,  to  act  as  directors  until  others 

22  are  qualified  in  their  stead. 

23  Each  associate  shall  subscribe  to  the  agreement  of  association  his 

24  name,  residence,  post  ofBce  address,  and  the  number  of  shares  of  stock 

25  which  he  agrees  to  take;  but  no  subscriber  shall  be  bound  to  pay  more 

26  than  ten  per  cent  of  the  amount  of  his  subscription  unless  a  company  is 

27  incorporated. 

1  Section  5.     The  directors  shall  appoint  a  clerk  and  a  treasurer  who  cierk  and 

2  shall  hold  their  respective  offices  until  a  clerk  and  a  treasurer  of  the  com-  vacanSi. 

3  pany  are  cjualified  in  their  stead.     The  directors  shall  fill  any  vacancy  in  p^^s.'m.Vs. 

4  their  board,  or  in  the  office  of  clerk  or  treasurer,  before  the  organization  of  f^^- 1^2,  §  5. 

5  the  company.  1906, 463.  in,  §§  5,15s. 

1  Section  6.     The  directors,  before  applying  for  locations  for  a  railway,  PubUcation  ot 

2  shall  cause  a  copy  of  the  agreement  of  association  to  be  pubhshed  in  a  association. 

3  newspaper,  if  any,  published  in  each  of  the  cities  and  towns  where  the  r  s*.'m,\  6. 

4  railway  is  to  be  located,  and,  if,  in  any  county,  a  newspaper  is  published  fgQ^;  Hf^  ^  *'• 

5  in  none  of  said  cities  and  towns  therein,  in  such  newspaper  pubhshed  in  "'^^  ^^  ^'  '^*- 

6  said  county  as  shall  be  designated  by  the  department,  at  least  once  in 

7  each  of  three  successive  weeks;   and  the  sworn  certificate  of  the  clerk 

8  shall  be  conclusive  evidence  of  such  publication. 

1  Section  7.    The  board  of  aldermen  of  a  city  or  the  selectmen  of  a  town.  Location. 

2  upon  petition  executed  in  accordance  with  the  by-laws  or  a  vote  of  the  itii.  ssi!  1 14' 

3  directors  of  a  company  organized  or  in  process  of  organization  under  K&*'n3,\*7. 

4  this  chapter,  or  organized  under  a  special  act,  for  an  original  location  is9|,  578, 

5  of  tracks  in  such  city  or  town,  shall  gi\e  fourteen  days'  notice  of  the  time  R jL.  112,  |jr^ 

6  and  place  for  a  hearing  on  such  petition  by  publication  thereof  in  one  or  399"' 

7  more  newspapers,  if  any,  published  in  said  city  or  town;  otherwise,  in  lii,  §§7,'i58. 

8  such  newspapers  published  in  the  county  where  the  city  or  town  is  situ-  ibi^iWs  4i'6. 

9  ated  as  shall  be  designated  by  the  board  of  aldermen  or  the  selectmen  {H  Hl^  fig 

10  thereof;  and  if,  after  a  hearing,  they  deem  that  public  necessity  and  con-  j|J  ^j^^  |5i]- 

11  venience  so  require,  they  may  grant  said  location,  or  any  portion  thereof,  j;*^'  Ma^"  f-'* 


1758  STREET  RAILWAYS.  [Ch.\P.    161. 

188  Mass.  ISO,   and  may  prescribe  how  the  tracks  shall  be  laid,  and  the  kind  of  rails,  12 
i92Mass.  106.   poles,  wires  and  other  appliances  which  shall  be  used,  and,  in  addition  to  13 
199  Mais!  279.   the  general  provisions  of  law  governing  such  companies,  and  in  respect  14 
213  Ma.sl.  ?03.'   of  matters  not  treated  of  in  such  provisions,  impose  such  other  terms,  15 
245 U.S. 574.    conditions  and  obligations,  incidental  to  and  not  inconsistent  with  the  16 
objects  of  a  street  railway  company,  as  they  deem  the  public  interests  17 
may  require;  but  no  such  location  shall  be  valid,  until  the  department  18 
after  public  notice  and  a  hearing  shall  certify  that  such  location  is  con-  19 
sistent  with  the  public  interest.  20 

If  the  department  requires  an  alteration  in  such  location  before  certify-  21 
ing  that  the  same  is  consistent  with  the  public  interest,  it  shall  notify  the  22 
board  of  aldermen  or  selectmen  granting  such  location  of  such  alteration;  23 
and  thereafter  said  board  of  aldermen  or  selectmen  may  amend  such  loca-  24 
tion  accordingly;  pro\'ided,  that,  if  such  alteration  invoh'cs  a  change  in  25 
the  route  of  the  railway,  public  notice  and  a  hearing  shall  be  given  as  pro-  26 
vided  in  the  case  of  an  original  application  for  a  location;  and  thereafter  27 
the  department  may,  as  a  part  of  the  original  proceedings  before  it,  certify  28 
that  such  location  so  amended  is  consistent  with  the  public  interest.  A  29 
location  so  certified  to  be  consistent  with  public  interest,  shall  be  the  true  30 
location,  if,  within  sixty  days  after  the  issue  of  notice  of  said  certification  31 
to  the  company,  it  shall  file  a  -wTitten  acceptance  of  such  location,  executed  32 
in  accordance  with  its  by-laws  or  a  vote  of  its  directors,  with  the  board  of  33 
aldermen  or  selectmen.  A  location  granted  by  a  board  of  aldermen  or  34 
selectmen,  but  refused  certification  hereunder  by  the  department,  or  not  35 
accepted  as  herein  provided,  shall  be  void.  Such  location  shall  also  be  36 
^'oid,  if  the  certificate  of  incorporation  of  the  street  railway  company  is  37 
not  issued,  and  its  organization  is  not  completed,  within  eighteen  months  38 
after  the  issue  of  notice  of  certification,  or  if  application  for  said  certi-  39 
fication  is  not  made  to  the  department  within  thirty  days  after  the  grant  40 
of  said  location  by  the  board  of  aldermen  or  selectmen.  If  in  any  city  41 
or  town  the  original  location  of  a  company  expires,  is  revoked,  or  other-  42 
wise  becomes  void,  this  section  shall  apply  to  a  new  petition  for  an  43 
original  location  therein.  44 

blpr^tnt^'°to      Section  8.     AVhen  the  amount  of  capital  stock  named  in  the  agree-  1 

i87"29f§V     ment  of  association  has  been  subscribed  in  good  faith  by  responsible  per-  2 

Pj  s.  112,  §  43;  sons,  and  ten  per  cent  of  the  par  value  of  each  share  has  been  paid  in  3 

1898, 578,  §27.  cash  to  the  treasurer,  the  directors,  clerk  and  treasurer  shall  annex  to  the  4 

112. 1 8.  ■       ■  agreement  of  association  their  certificate  setting  forth  these  facts,  and  5 

lii,  §§  8,' 158.    that  it  is  intended  in  good  faith  to  locate,  construct,  maintain  and  operate  6 

the  railway  as  described  in  said  agreement,  shall  annex  to  said  agreement  7 

the  certificate  of  publication  specified  in  section  six  and  the  several  cer-  8 

tificates  of  location,  and  shall  present  the  same  for  inspection  to  the  9 

department.  10 

mco'^oration         Section  9.     Whcu  It  is  showu  to  the  satisfaction  of  the  department  1 

issi'iei^^'     *^'^*  t^^^  requirements  of  this  chapter  preliminary  to  the  incorporation  2 

p. s.'ii2,§44;  of  a  company  have  been  complied  with,  and  that  locations  have  been  3 

1898. 578.  §  27.  obtained  for  a  railway  between  the  termini  and  substantially  over  the  4 

m '§".^'  ^  *'''  route  set  forth  in  the  agreement  of  association,  the  clerk  of  the  depart-  5 

iiF,''§r9%58.    ment,  upon  its  order,  shall  annex  to  the  agreement  of  association  a  cer-  6 

tificate  stating  such  fact.    The  directors  shall  thereupon  file  the  agree-  7 

ment  of  association,  with  all  the  certificates  annexed  thereto,  including  8 


Chap.  161.]  street  railways.  1759 

9  the  plan,  if  any,  required  by  the  department,  in  the  office  of  the  state 

10  secretary,  who,  upon  receipt  of  fifty  dollars,  shall  receive  and  preserve 

11  the  same  in  form  convenient  for  reference  and  open  to  public  inspection; 

12  and  shall  thereupon  issue  a  certificate  of  incorporation  substantially  in 

13  the  following  form: 

Commonwealth  of  Massachusetts. 

Be  it  known  that  whereas  (names  of  the  subscribers  to  the  agreement  of  as- 
sociation) have  associated  themselves  with  the  intention  of  forming  a  corpora- 
tion under  the  name  of  the  (name  of  company),  for  the  purpose  of  locating, 
constructing,  maintaining  and  operating  a  street  railway  (description  of  the 
railway  as  in  the  agreement  of  association) ,  and  have  complied  with  the  statutes 
of  this  conunonwealth  in  such  cases  made  and  provided:  Now,  therefore,  I, 
,  secretary  of  the  commonwealth  of  Massachusetts,  do  hereby 
certify  that  the  persons  aforesaid,  their  associates  and  successors,  are  legally 
established  as  a  corporation  under  the  name  of  the  (name  of  the  company), 
with  all  the  powers  and  privileges,  and  subject  to  all  the  duties,  liabilities  and 
restrictions,  set  forth  in  all  general  laws  which  now  are  or  liereafter  may  be  in 
force  relating  to  street  railway  companies. 

In  witness  whereof,  I  have  hereunto  subscribed  my  official  signature,  and 
affixed  the  great  seal  of  said  commonwealth,  this  day  of  , 

in  the  year 

14  The  state  secretary  shall  sign  the  certificate  of  incorporation,  and 

15  cause  the  great  seal  of  the  commonwealth  to  be  thereto  affixed,  and 

16  such  certificate  shall  have  the  force  and  effect  of  a  special  charter.    He 

17  shall  also  cause  a  record  of  the  certificate  of  incorporation  to  be  made, 

18  and  such  certificate,  or  such  record,  or  a  certified  copy  thereof,  shall  be 

19  conclusive  evidence  of  the  existence  of  such  corporation. 

ORGANIZATION. 

1  Section  10.     Upon  the  issue  of  such  certificate  of  incorporation,  the  First  meeting 

2  first  meeting  of  the  incorporators  shall  be  called  by  a  notice,  signed  by  a  rator™"^" 

3  majority  of  the  directors,  stating  the  time,  place  and  purposes  of  the  p*s*'m,\«; 

4  meeting.    A  copy  of  such  notice  shall,  seven  days  at  least  before  the  day  R^^fji  §  48- 

5  appointed  for  the  meeting,  be  given  to  each  incorporator  or  left  at  his  Jgo6^463 

6  residence  or  usual  place  of  business,  or  deposited  in  the  post  office,  postage  lii.  §§  lo.  iss- 

7  prepaid,  and  addressed  to  him  at  his  residence  or  usual  place  of  business, 

8  and  another  copy  thereof,  and  an  affidavit  of  the  clerk  that  the  notice 

9  has  been  duly  served,  shall  be  recorded  with  the  records  of  the  company. 

10  If  all  the  incorporators  shall  in  writing  waive  such  notice  and  fix  the  time 

11  and  place  of  the  meeting,  no  notice  shall  be  required. 

1  Section  11.     At  such  first  meeting,  or  at  any  adjournment  thereof,  fgoe^lls*'""' 

2  the  incorporators  shall  organize  by  the  adoption  of  by-laws,  and  by  the  !"■  5  n- 

3  election,  by  ballot,  of  not  less  than  five  directors.    The  clerk  appointed 

4  by  the  directors  under  section  five  shall  make  and  attest  a  record  of  the 

5  proceedings  until  the  clerk  of  the  company  has  been  chosen  and  sworn, 

6  including  a  record  of  such  choice  and  qualification. 

OFFICERS. 

1  Section  12.     The  business  of  every  company  shall  be  managed  and  fg'^f  229  §  2 

2  conducted  by  a  president,  a  board  of  not  less  than  five  directors,  a  clerk,  i^'M'Jg^- 

3  a  treasurer  and  such  other  officers  and  such  agents  as  the  company  by  its  R.  l-  112,  §  is. 

4  by-laws  shall  authorize.  1906, 403,  in,  §§  12,  iss. 


1760 


STREET   RAILWAYS. 


[Chap.  161. 


Election  of 
officers. 
1864,  229.  §  2. 
1871,381.  §2. 
1874,  29,  §  4. 
P.  S.  113, 
§5  5,9. 
R.L.I  12, 
§§5,15. 

1905,  SO. 

1906,  463.  Ill, 
§§  13,  158. 
1909,417,  §  5. 
1918,  257, 
§367. 
1919,5. 
1920.  2. 

167  Mass.  161. 


Meetings  of 

stockholders. 
1864.  229,  §  3. 
1871,381,  I  3. 
P.  S.  113,  §  10. 
R.  L.  112,  §  16. 
1906,463,  III, 
§§  14,  158. 


Section  13.     The  directors  shall  be  elected  annually  by  the  stock-     1 

holders  by  ballot,  and  the  president  shall  be  elected  annually  by  and  from  2 

the  board  of  directors,  and  the  treasurer  and  the  clerk  annually  by  said  3 

board.    Every  director,  unless  the  by-laws  otherwise  provide,  shall  be  a  4 

stockholder.    The  treasurer  may  be  required  to  give  a  bond  for  the  faith-  5 

ful  performance  of  his  duty  in  such  sum  and  with  such  sureties  as  the  6 

by-laws  may  prescribe.    The  clerk,  who  shall  be  a  resident  of  the  com-  7 

monwealth,  shall  be  sworn,  and  shall  record  all  votes  of  the  company  in  8 

a  book  kept  therefor.    The  officers  of  a  company  shall  hold  office  for  one  9 

year  and  until  their  successors  are  qualified.    All  other  agents  and  officers  10 

shall  be  chosen  or  appointed,  and  all  vacancies  filled,  in  the  manner  pre-  1 1 

scribed  by  the  by-laws,  or,  in  default  of  such  by-law,  by  the  board  of  12 

directors.    Any  requirement  in  the  general  laws  of  action  to  be  taken  13 

or  instruments  to  be  signed  by  the  president,  directors,  or  a  majority  of  14 

the  directors,  of  a  company,  relative  to  grants,  extensions,  alterations,  15 

and  revocations  of  location,  abolition  of  grade  crossings  and  rights  in  16 

state  highways,  shall  be  sufficiently  and  legally  complied  with  if  such  17 

action  is  taken  by  a  vote,  or  if  such  instrument  is  executed  in  accordance  18 

with,  and  by  the  persons  designated  in,  a  vote  of  the  directors  of  such  19 

company,  at  a  meeting  duly  and  properly  held,  at  which  a  quorum  of  the  20 

board  is  present.  21 

MEETINGS. 

Section  14.  There  shall  be  an  annual  meeting  of  the  stockholders,  and  1 
the  time  and  place  of  holding  it,  and  the  manner  of  conducting  it,  shall  2 
be  fixed  by  the  by-laws.  All  meetings  of  stockholders  shall  be  held  in  3 
the  commonwealth,  and  shall  be  called,  and  notice  thereof  given,  in  the  4 
manner  provided  in  the  by-laws  of  the  company;  or,  if  the  by-laws  make  5 
no  provision  therefor,  shall  be  called  by  the  president,  and  a  written  6 
notice,  stating  the  place,  day  and  hour  thereof,  shall  be  given  by  the  clerk,  7 
at  least  seven  days  before  such  meeting,  to  each  stockholder  by  leaving  8 
such  notice  with  him  or  at  his  residence  or  usual  place  of  business,  or  by  9 
mailing  it,  postage  prepaid,  and  addressed  to  each  stockholder  at  his  10 
address  as  it  appears  upon  the  books  of  the  company.  Unless  the  by-laws  1 1 
otherwise  provide,  a  majority  in  interest  of  all  stock  issued  and  outstand-  12 
ing  and  entitled  to  vote  shall  constitute  a  quorum.  Notices  of  all  meet-  13 
ings  of  stockholders  shall  state  the  purposes  for  which  the  meetings  are  14 
called.  No  notice  of  the  time,  place  or  purpose  of  any  regular  or  special  15 
meeting  of  the  stockliolders  shall  be  required  if  every  stockholder,  or  his  16 
attorney  thereunto  authorized,  by  a  writing  filed  with  the  records  of  the  17 
meeting,  waives  such  notice.  18 


Special 

meetings. 

1876,  201. 

P.  S.  112,  §52. 

1897,  99. 

R.  L.  Ill,  §56. 

1906.  463.  Ill, 

§§  16,  158. 


Section  15.  A  special  meeting  of  the  stockliolders  shall  be  called, 
and  a  written  notice  thereof,  stating  the  time,  place  and  purpose  of  the 
meeting,  given,  by  the  clerk  upon  written  application  of  three  or  more 
stockholders  entitled  to  vote,  holding  at  least  one  tenth  part  in  interest  of 
the  capital  stock. 


Voting  rights 
of  company 
upon  its  own 
stock. 


Section  16.     A  company  shall  not  directly  or  indirectly  vote  upon     1 
any  share  of  its  own  stock.  1864,229,54.  i87i,38i,§4.  2 

p.  S.  113,  §11.  R.  L.  112,  §17.  1906,  463,  III,  §§17,  158. 


Jtockhoiiera!"'      Section  17.     Stockholders  entitled  to  vote  shall  have  one  vote  for     1 
?!;?^^oo  each  share  of  stock  owned  by  them.    Stockholders  may  vote  either  in     2 

§§  4. 5.  person  or  by  proxy.    No  proxy  dated  more  than  six  months  before  the     3 


Chap.  161.]  street  railways.  1761 

4  meeting  named  therein  shall  be  accepted,  and  no  such  proxy  shall  be  isti.ss:, 

5  valid  after  the  final  adjournment  of  such  meeting.         p.  s.  iis,  §§ii,  12. 

1889,  210.  E.  L.  112,  §  17.  1906,  463,  III,  |§  18,  158. 

1  Section  18.     Meetings  of  the  board  of  directors  may  be  held  within  Meetings  of 

2  or  without  the  commonwealth.    Any  meeting  of  the  board  of  directors  looe.'ws,  iii, 

3  shall  be  a  legal  meeting  without  notice,  if  each  director  who  is  absent,  ^  ^°- 

4  by  a  writing  filed  with  the  records  of  the  meeting,  waives  such  notice. 

CAPITAL  STOCK  AND   BONDS. 

1  Section  19.     Each  stockholder  shall  be  entitled  to  a  certificate  which  stock 

2  shall  be  signed  by  the  president  and  by  the  treasurer  of  the  company,  or  igoel'Ss'^^iii. 

3  by  such  other  officers  as  may  be  authorized  by  the  by-laws,  shall  be  ^  ^^' 

4  sealed  with  its  seal,  and  shall  certify  the  number  of  shares  owned  by 

5  him  in  such  company. 

1  Section  20.     Certificates  of  stock  shall  not  be  issued  by  a  company  shares  to  be 

2  until  the  par  value  thereof  shall  have  been  paid  in  cash.  liu.  229,Te. 

1871,  381,  §  7.  R.  L.  109,  |  20:  141  Mass.  496. 

P.  S.  113,  §13.  112,  §  18.  lOp.  A.  G.  659. 

1894,  350,  §  1.  1906,  463,  III,  §§  26,  158. 

1  Section  21.     The  directors  may  assess  upon  all  the  shares  subscribed,  Assessments 

„     ,      .  ,  upon  capital 

2  but  not  paid  in,  such  amounts,  not  in  excess  of  their  par  value,  as  they  ^'"i^-ggq 

3  think  proper,  and  may  direct  the  same  to  be  paid  to  the  treasurer,  who  §§  8,'9.  " 

4  shall  give  written  notice  thereof  to  the  subscribers.     If  a  subscriber  fails  p.  s.'ii3,'§  i7. 

5  to  pay  liis  assessment  for  tliirty  days  after  such  notice,  the  directors  may  fgoei  III',  ui^' 

6  transfer  the  rights  under  such  subscription  to  any  person  who  subscribes  ^^^'''  '^'^ 

7  for  the  same  and  pays  the  assessments  due,  or  may  order  the  treasurer, 

8  after  giving  notice  of  the  sale,  to  sell  such  shares  by  public  auction  to  the 

9  highest  bidder,  and,  upon  the  payment  by  him  to  the  company  of  the 

10  unpaid  assessments,  of  interest  to  the  date  of  sale  and  of  the  charges  of 

11  the  sale,  the  shares  shall  be  transferred  to  him.     If,  within  thirty  days 

12  after  the  sale,  the  purchaser  does  not  make  said  payment  to  the  company, 

13  the  sale  shall  be  cancelled,  and  the  subscriber  shall  be  liable  to  the  com- 

14  pany  for  the  unpaid  assessments,  the  interest  thereon,  and  the  charges  of 

15  sale.     If  the  amount  so  paid  by  the  purchaser  to  the  company  is  more 

16  than  the  amount  for  which  the  shares  were  sold,  the  subscriber  shall 

17  be  liable  to  the  purchaser  for  the  deficiency;   if  it  is  less,  the  purchaser 

18  shall  be  liable  to  the  subscriber  for  the  surplus. 

1  Section  22.     If  a  subscriber  fails  to  pay  his  assessment  for  thirty  Collection  of 

2  days,  as  provided  in  the  preceding  section,  the  directors  may  elect  to  pro-  iloTSss"  lii. 

3  ceed  by  an  action  at  law  against  said  delinquent  subscriber  to  recover  all  ^  ^^' 

4  amounts  due  and  payable  by  him  with  interest.    If  a  judgment  rendered 

5  in  an  action  against  a  subscriber  remains  unsatisfied  for  thirty  days,  all 

6  amounts  previously  paid  by  liim  shall  be  forfeited  to  the  company,  and 

7  the  directors  may  offer  such  shares  for  sale  as  above  provided. 

1  Section  23.     A  companv  shall  not  begin  to  build  its  railway  until  it  Subscriptions 

_      ,      ,,    ,  nt     ^    •         I  m"  (»      1  . ^  .  ,    to  full  capital 

2  shall  have  nled  in  the  office  oi  tlie  state  secretary  a  certmcate,  signed  stock  am!  pay- 

3  and  sworn  to  by  its  president,  treasurer,  clerk  and  a  majority  of  its  di-  pe'r°cent  befOTe 

4  rectors,  stating  that  the  amount  of  its  capital  stock  has  been  uncondi-  isS'^aglTo- 


1762 


STREET  RAILWAYS. 


[Chap.  161. 


¥^i' ui'i  19    tionally  subscribed  for  by  responsible  parties,  and  that  fifty  per  cent  of 
R.  L.  112,  §  27.  the  par  value  of  each  share  thereof  has  been  paid  in  cash. 

1906,  463,  III,  §§  28,  158.  141  Mass.  496. 


Liability  of 
directors 
before  stock 
paid  in. 
1864,  229,  §  0. 
1871,  381,  §  7. 
P.  S.  113,  §  14. 
R.  L.  112,  §  19. 
1906,  463,  m, 
§§  29,  158. 

194  Mass.  590. 

195  Mass.  571. 


Section  24.  The  directors  of  a  company  shall  be  jointly  and  severally 
liable,  to  the  extent  of  its  capital  stock,  for  all  its  debts  and  contracts, 
until  the  whole  amount  of  its  capital  stock  as  originally  fixed  by  its 
agreement  of  association,  or  if  a  chartered  company,  by  its  directors, 
and  authorized  by  the  department,  shall  have  been  paid  in,  and  until 
a  certificate  stating  the  amount  thereof  so  fixed  and  paid  in  shall  have 
been  signed  and  sworn  to  by  its  president,  treasurer,  clerk  and  a  majority 
of  its  directors,  and  filed  in  the  office  of  the  state  secretary. 


Increase  of 
capital  stock 
and  issue  of 
bonds  for  cer- 
tain purposes. 
1864,  229,  §  7. 
1871,  381,  §  8. 
1874,  29,  §  15. 
P.  S.  113,  §  5. 
1887,  366. 
1889,316,  §§  1, 
2,4. 
1892,  192. 

1895,  316,  §  3. 

1896,  409. 
1898,  578,  §  22. 
R.  L.  112, 

§§  20,  21,  23. 
76. 

1902,  370. 
1906,  403.  Ill, 
§§  103,  158. 
1910,  536. 
218  Mass.  367. 


Section  2.5.  A  company,  for  the  purpose  of  building  an  extension,  or  1 
acquiring  land  for  pleasure  resorts,  or  acquiring  or  building  power  houses  2 
or  car  houses  or  park  buildings,  or  acquiring  or  equipping  additional  roll-  .3 
ing  stock,  or  changing  its  motive  power,  or  furnishing  electricity  to  a  town  4 
for  light,  or  abolishing  grade  crossings,  or  paying  betterment  assessments  5 
for  widening  or  otherwise  altering  streets,  or  complying  with  any  require-  6 
ments  lawfully  imposed,  or  making  permanent  investments  or  improve-  7 
ments,  or  acquiring  any  additional  real  or  personal  property  necessary  8 
or  convenient  for  its  corporate  objects,  or  refunding  its  funded  debt,  or  9 
paying  money  borrowed  or  indebtedness  incurred  for  any  of  the  foregoing  10 
purposes,  or  other  similarly  necessary  and  lawful  purposes,  may,  in  ac-  11 
cordance  with  sections  twenty-eight  and  twenty-nine  of  this  chapter,  12 
sections  fifty  to  fifty-two,  inclusive,  of  chapter  one  hundred  and  fifty-  13 
nine  and  sections  forty-seven  to  fifty-five,  inclusive,  of  chapter  one  14 
hundred  and  sixty,  increase  its  capital  stock  or  issue  bonds,  secured  15 
by  mortgage  or  otherwise,  to  such  an  amount,  beyond  the  amounts  fixed  16 
and  limited  by  its  agreement  of  association  or  its  charter,  or  by  any  17 
special  law,  as  the  department  shall  determine  will  realize  the  amount  18 
which  has  been  properly  expended  or  will  be  properly  required,  and  as  19 
the  department  shall  approve  for  such  of  the  purposes  aforesaid  as  are  20 
set  out  in  its  petition  to  the  department.  21 

The  department,  in  authorizing  the  issue  of  any  bonds  under  this  22 
section,  may  prescribe  the  minimum  price  at  which  such  bonds  shall  be  23 
sold,  and  may  modify  such  price  from  time  to  time,  as  it  deems  proper.  24 
Whenever  it  authorizes  or  has  approved  the  issue  or  sale  of  bonds  of  a  face  25 
value  in  excess  of  the  amount  determined  by  it  to  have  been  properly  ex-  26 
pended  or  to  be  properly  required,  it  may,  in  its  order  of  approval,  or  at  27 
any  time  thereafter,  require  the  company  issuing  such  bonds  to  establish  28 
a  sinking  fund,  estimated  to  realize  at  the  maturity  of  said  bonds  a  sum  29 
equal  to  the  difference  between  the  amounts  for  which  such  bonds  were  30 
authorized  or  approved,  and  the  face  value  of  the  bonds  so  authorized  31 
or  appro-\-ed  therefor,  and  may  designate  a  domestic  trust  company  as  32 
trustee  and  custodian  of  such  fund,  and  may  from  time  to  time  change  33 
such  trustee.  Any  agreement  relative  to  said  sinking  fund,  made  between  34 
the  street  railway  company  and  the  trust  company  selected  as  such  35 
trustee,  shall  not  be  valid  until  approved  by  the  department.  36 


Bt"o"k*lnd°^  Section  26.     In  addition  to  the  purposes  for  which  a  company  may  1 

issue  of  bonds  incrcase  its  capital  stock  or  issue  bonds,  as  provided  in  the  preceding  sec-  2 

working  tiou,  a  Company  to  supply  itself  with  working  capital  may,  in  accordance  3 

i909?485.  \\ith  sections  twenty-eight,  twenty-nine  and  thirty-one  of  this  chapter  4 


Chap.  161.]  street  railways.  1763 

5  or  sections  fifty  to  fift,y-two,  inclusive,  of  chapter  one  hundred  and 

6  fifty-nine,  in  the  case  of  companies  to  which  said  last  named  sections 

7  are  applicable,  and  of  sections  forty-seven  to  fifty-five,  inclusive,  of 

8  chapter  one  hundred  and  sixty,  increase  its  capital  stock  to  an  amount 

9  not  exceeding  five  per  cent  of  the  par  value  thereof  then  outstanding,  or 

10  may  issue  bonds,  secured  by  mortgage  or  otherwise,  to  such  an  amount, 

11  beyond  the  amounts  fixed  and  limited  by  its  agreement  of  association, 

12  or  by  any  general  or  special  law,  and  not  more  than  the  department 
1.3  shall  determine  will  be  properly  required  therefor,  as  the  department 

14  shall  approve  as  being  consistent  with  the  interest  of  the  public  and  of 

15  the  stockholders  of  such  company  and  as  not  unreasonably  reducing  the 

16  security  of  any  bond  previously  issued. 

1  Section  27.     On  petition  of  a  company  for  authority  to  reduce  its  Reduction  of 

2  capital  stock,  presented  in  accordance  with  a  vote  of  the  stockholders  at  1890^326°'^'^' 

3  a  meeting  called  therefor,  the  department  may,  after  a  hearing  and  such  fgoi;;  463.  m,^' 

4  examination  of  the  financial  condition  of  the  company  as  it  considers  f|7'Mass^536 

5  necessary,  authorize  such  reduction,  if  it  appears  to  be  consistent  with 

6  the  public  interest  and  with  the  limitations  imposed  by  general  or  special 

7  laws.     A  certificate  of  the  amount  of  the  reduction  and  of  any  terms  and 

8  conditions  imposed  shall  be  forthwith  filed  by  the  department  in  the 

9  office  of  the  state  secretary.     When  such  reduction  is  made,  no  money  or 

10  other  property  shall  be  paid  or  transferred  to  the  stockliolders  unless 

11  specially  authorized  by  the  department,  and  by  vote  of  the  directors 

12  of  the  company  taken  by  yeas  and  nays  at  a  meeting  called  therefor. 

13  The  directors  voting  therefor  shall  be  jointly  and  severally  liable  for 

14  the  debts  or  contracts  of  the  company  existing  when  the  capital  stock 

15  is  reduced,  to  the  extent  of  the  money  or  property  paid  or  transferred 

16  to  the  stockholders. 

1  Section  28.     A  company  shall  issue  only  such  amounts  of  stock  and  ^f  "f  °f  ca^jitai 

nil  11  -1  !•    •      ^    I         \  stock,  bonds, 

2  bonds,  coupon  notes  and  other  evidences  oi  indebtedness  payable  at  coupon  notes 

3  periods  of  more  than  one  year  after  the  date  thereof,  as  the  department  evidences  ot 

4  may  from  time  to  time  determine  to  be  reasonably  necessary  for  the  pur-  isw,  462"!^ 

5  pose  for  wliich  such  issue  of  stock  or  bonds  has  been  authorized.    The  r^^'l;  109, 1 24. 

6  department  shall  render  a  written  decision  upon  an  application  for  such  §§°io7,'^i58."' 

7  issue  within  thirty  days  after  the  final  hearing  thereon,  assigning  the  |^|  J}^^^  p^- 

8  reasons  therefor,  and  shall,  if  authorizing  such  issue,  specify  the  respective  2i«  Mag.  432. 

9  amounts  of  stock,  bonds,  coupon  notes  or  other  evidences  of  indebt-  (i9i9)'54'. 

10  edness  as  aforesaid,  which  are  authorized  to  be  issued  for  the  respective 

11  purposes  to  which  the  proceeds  thereof  are  to  be  applied,  and  the  decision 

12  shall,  within  seven  days  after  it  has  been  rendered,  be  filed  in  the  office 

13  of  the  department.     A  certificate  of  the  decision  shall,  within  three  days 

14  after  it  has  been  rendered  and  before  the  stock,  bonds,  coupon  notes 

15  or  other  evidences  of  indebtedness  as  aforesaid  are  issued,  be  filed  in  the 

16  office  of  the  state  secretary,  and  a  duplicate  thereof  delivered  to  the 

17  company.    Such  company  shall  not  apply  the  proceeds  of  such  stock, 

18  bonds,  coupon  notes  or  other  e^'idences  of  indebtedness  as  aforesaid  to 

19  any  piu-pose  not  specified  in  such  certificate. 

1  Section  29.     A  company,  unless  expressly  authorized  by  its  charter  Limit  of  issue 

2  or  by  special  law,  shall  not  issue  bonds,  coupon  notes  or  other  evidences  coupon  notes 

3  of  indebtedness  payable  at  periods  of  more  than  one  year  after  their  evidence! ot 

4  date  to  an  amount  which,  including  the  amount  of  all  such  securities  iss^'s^ililTi 


1764 


STREET   RAILWAYS. 


[Chap.  161. 


1S97 


previously  issued  and  outstanding,  computed  as  provided  in  section  fifty-  5 
R.i'.'i'og.  §25.  three  of  chapter  one  hundred  and  fifty-nine,  exceeds  in  the  whole  the  6 
§§  108, 158.  '  amount  of  its  capital  stock  at  the  time  actually  paid  in;  but  this  limita-  7 
222*Mals'.  35.  ^ion  shall  not  apply  to  an  issue  of  bonds  for  the  purpose  of  paying  and  8 
refunding  at  maturity  bonds  lawfully  issued  prior  to  June  second,  9 
eighteen  hundred  and  ninety-seven;  nor  shall  it  apply  to  such  of  the  10 
bonds  issued  or  to  be  issued  imder  a  mortgage  as  are  deposited  to  retire  at  11 
or  before  maturity  bonds  or  other  evidences  of  indebtedness  previously  12 
issued  and  outstanding  at  the  date  of  such  mortgage,  and  as  do  not  exceed  13 
the  par  value  of  the  funded  or  other  debt  so  to  be  retired;  nor  shall  it  14 
apply  to  bonds,  coupon  notes  or  other  evidences  of  indebtedness  payable  15 
at  periods  of  more  than  one  year  after  their  date,  in  addition  to,  and  not  16 
exceeding  twenty  per  cent  of,  the  amount  so  computed,  which  shall  be  17 
authorized  as  consistent  with  the  public  interest  by  the  department,  and  18 
which  shall  be  subject  to  such  requirement  as  to  a  sinking  fmid  or  other  19 
method  of  retiring  said  evidences  of  indebtedness  within  a  period  not  20 
exceeding  ten  years,  as  the  department  may  prescribe,  to  provide  means  21 
for,  or  to  fund,  the  actual  cost  of  replacement  or  reconstruction  of  any  22 
existing  property;  and  such  company  shall  not  issue  the  securities  specified  2.3 
in  this  section  unless  authorized  by  a  vote  of  its  stockholders  at  a  meeting  24 
called  therefor.  25 


Enforcement. 

1894.  462.  5  3. 
R.  L.  109,  §27. 
1906.  463.  Ill, 
§§  109,  158. 


Section  30.     The  supreme  judicial  or  superior  court  shall  have  juris-  1 

diction  in  equity,  upon  the  application  of  the  department,  the  attorney  2 

general,  any  stockholder,  or  any  interested  party,  to  enforce  the  two  pre-  3 

ceding  sections  and  all  lawful  orders  and  decisions,  conditions  or  require-  4 

ments  of  said  department  made  in  pursuance  thereof.  5 


Penalties. 
1894,  462,  §  2. 
R.  L.  109,  §  28. 
1906.  463.  III. 
§§110,  158. 


Section  31.     A  director,  treasurer  or  other  officer  or  agent  of  a  com-  1 

pany  who  knowingly  votes  to  authorize  the  issue  of,  or  knowingly  signs,  2 

certifies  or  issues,  stock  or  bonds  contrary  to  any  provision  of  section  3 

twenty-eight  or  twenty-nine,  or  who  knowingly  votes  to  authorize  the  4 

application,  or  knowingly  applies  the  proceeds,  of  such  stock  or  bonds  5 

contrary  to  any  provision  of  said  sections,  or  who  knowingly  votes  to  6 

assume  or  incur,  or  knowingly  assumes  or  incurs  in  the  name  or  behalf  of  7 

such  company,  any  debt  or  liability  except  for  legitimate  purposes  of  8 

the  company  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  9 

dollars  or  by  imprisonment  for  not  more  than  one  year,  or  both.  10 


pISerred  Sectiox  32.     A  Company  organized  under  the  laws  of  the  common- 

i902!'44i,  §  1.  '"'ealth  may,  by  vote  of  two  thirds  in  interest  of  its  common  stockholders 
§§^'5"'  ^*  ^  meeting  duly  called  therefor,  with  the  approval  of  the  department, 
211  Mass.  424.  and  subject  to  section  twenty-eight  of  this  chapter  and  section  fifty- 
two  of  chapter  one  hundred  and  fifty-nine,  issue,  and  from  time  to  time 
increase,  preferred  stock  of  one  or  more  classes,  for  any  lawful  purposes 
for  which  such  companies  may  issue  or  increase  their  capital  stock. 
Each  class  of  preferred  stock  shall  be  entitled  to  the  preferences  and  rights 
and  subject  to  the  restrictions  and  limitations  fixed  by  such  vote  as 
approved  by  the  department. 


1 
2 

3 

4 
5 
6 

7 

8 

9 

10 


Exchange  of 
common  for 

1913."^,  §  2.    iiiaiiner  as  shall  be  determined  by  vote  of  two  thirds  in  amount  of  its    2 


Section  33.     Any  such  company  may,  upon  such  terms  and  in  such     1 


Chap.  161.]  street  railways.  1765 

3  outstanding  common  capital  stock  and  as  shall  be  approved  by  the  de- 

4  partment,  issue  in  lieu  of  outstanding  common  shares  preferred  shares 

5  to  such  number,  of  such  par  value  and  with  such  preferences,  rights,  re- 

6  strictions  and  limitations  and  entitled  to  such  rate  of  preferred  dividend 

7  as  shall  so  be  determined  and  approved;   provided,  that  the  aggregate 

8  par  value  of  such  preferred  stock  shall  not  exceed  the  aggregate  par 

9  value  of  the  common  stock  in  exchange  for  which  it  is  issued. 

1  Section  34.     Each   class  of  preferred   stock  issued  under  sections  Form  of  cer- 

2  thirty-two  to  thirty-five,  inclusive,  shall  be  designated  by  a  name  ap-  wol'^i^t^. 

3  proved  by  the  department  to  distinguish  it  from  all  other  classes  of  §§^3,'5."' 

4  stock  of  the  company.    A  certified  copy  of  the  vote  creating,  and  of  the 

5  order  of  the  department  approving,  the  creation  of  any  class  of  preferred 

6  stock  shall  be  filed  in  the  office  of  the  department  and  in  the  office  of  the 

7  commissioner  of  corporations  and  taxation.    Every  certificate  of  stock 

8  issued  by  such  company  after  the  approval  by  the  department  of  the 

9  creation  by  it  of  preferred  stock  shall  contain  a  reference  to  all  votes 

10  creating  preferred  stock  and  a  brief  description  of  the  respective  pref- 

1 1  erences,  rights  and  restrictions  of  each  class  of  such  stock. 

1       Section  35.     Preferred   stock   issued   under   sections  thirty-two  to  Preferred 


"''■  thirty-five,  inclusive,  shall  have  the  same  voting  power  as  the  common 


powers,  issue, 


3  stock,  except  that,  in  any  case,  there  may  be  such  limitations  of  the  voting  jg^,  441  §  1 

4  power  of  said  preferred  stock  as  the  department  approves  and  finds  con-  Iff'!^' 

5  sistent  with  public  interest.    The  aggregate  amount  at  par  of  preferred 

6  stock  of  all  classes  issued  by  a  company  shall  at  no  time  exceed  twice  the 

7  amount  at  par  value  of  its  outstanding  common  stock,  and  no  class  of 

8  preferred  stock  shall  be  created  which  is  not,  in  a  manner  approved  by  the 

9  department,  made  subordinate  in  respect  to  dividends  or  to  participa- 

10  tion  in  the  proceeds  of  liquidation  to  the  preferences  of  every  previously 

1 1  created  class  of  preferred  stock.    Upon  any  issue  of  preferred  stock  the 

12  new  shares  shall,  unless  the  common  stockholders  with  the  approval  of 

13  the  department  otherwise  provide,  first  be  offered  to  the  common  stock- 

14  holders  in  the  manner  prescribed  in  sections  fifty  to  fifty -two,  inclusive, 
1.")  of  chapter  one  hundred  and  fifty-nine,  and  any  shares  of  the  preferred 

16  stock  not  duly  subscribed  and  paid  for  by  the  common  stockholders  or 

17  their  assigns  shall  be  offered  in  the  same  manner  to  the  holders  of  pre- 

18  ferred  stock  of  the  same  class;  and  any  of  such  preferred  shares  then 

19  remaining  untaken,  and  all  of  the  preferred  shares  if  the  common  stock- 

20  holders  so  determine  and  the  department  approves,  may  be  sold  in  the 

21  manner  provided  by  and  subject  to  section  fifty-one  of  chapter  one  hun- 

22  dred  and  fifty-nine.    In  case  of  any  increase  in  the  common  stock  of  the 

23  company,  holders  of  preferred  stock  shall  be  entitled  to  have  offered  to 

24  them  shares  of  the  new  stock  in  the  manner  provided  in  sections  fifty  to 

25  fifty-two,  inclusive,  of  chapter  one  hundred  and  fifty-nine,  whenever  the 

26  vote  creating  such  preferred  stock  as  approved  by  the  department  shall 

27  so  provide. 

STOCK    .U\T)    SCRIP   DIVIDENDS. 

1  Section  36.     A  company  shall  not  declare  any  stock  or  scrip  divi-  stock  and 

2  dend  or  divide  the  proceeds  of  the  sale  of  stock  or  scrip  among  its  dends  for- 

3  stockholders.  is94, 3.50,  §  1. 

R.  L.  109,  §  20.  1906,  463,  III,  §§  105,  15S.  214  Mass.  529. 


1766 


STREET   RAILWAYS. 


[Ch.\p.  161. 


Liability  of 
directors. 
1894,  350,  §  2. 
R.  L.  109,  §  21. 
1906,  463.  Ill, 
§§  106,  158. 

1918,  257, 
§368. 

1919,  5. 

1920,  2. 


Section  37.  A  certificate  of  stock  or  scrip  issued  in  violation  of  the 
preceding  section  shall  be  void;  and  each  director  of  the  company  issuing 
it  shall  be  liable  to  a  penalty  of  one  thousand  dollars,  to  be  recovered  by 
indictment  in  the  county  where  he  resides,  or,  if  he  resides  in  no  county 
in  the  commonwealth,  in  the  county  where  he  is  commorant,  or  the  offence 
was  committed ;  but  if  any  such  director  proves  that,  before  such  issue,  he 
filed  his  written  dissent  thereto  with  the  clerk,  and  at  no  time  voted 
therefor,  he  shall  not  be  so  liable. 


Powers  to 
cease  if  rail- 
way is  not 
built  within 
eighteen 
months  after 
date  of  incor- 
poration, 
unless,  etc. 
1857,  198. 
G.  S.  63,  §  140 
1864,  229,  §  12. 
1871,381,  §  12. 
P.  S.  113,  §  20. 
R.  L.  112,  §  28. 
1906,  463,  III, 
§§  30,  158. 


CORPORATE    POWERS. 

Section  38.     A  company,  incorporated  under  the  laws  of  the  com-  1 

monwealth,  may,  subject  to  this  chapter  and  chapter  one  hundred  and  2 

fifty-nine,  construct,  maintain  and  operate  a  street  railway,  but,  if  such  3 

company  does  not  build  and  put  in  operation  its  railway  within  eighteen  4 

months  after  the  date  of  its  certificate  of  incorporation,  its  corporate  5 

powers  shall  cease,  unless  the  department,  after  public  notice  and  a  hear-  6 

ing,  shall  extend  said  time  by  a  certificate,  stating  that  in  its  judgment  7 

due  diligence  has  been  exercised  by  the  company,  and  that  public  necessity  8 

and  convenience  require  such  extension.  9 


Extension  of 
corporate 
autnority  to 
operate 
railway. 
1896,  501. 
R.  L.  112,  §  92. 
1906,  463,  III, 
§§  31,  158. 


Section  39.     A  company,  which,  by  its  charter  or  certificate  of  in-  1 

corporation,  or  by  special  act,  is  authorized  to  construct,  maintain  and  2 

operate  a  street  railway  in  any  city  or  town  in  the  commonwealth,  and  3 

which  has  constructed  its  railway  therein,  may,  subject  to  the  provisions  4 

of  the  general  laws  relative  to  the  location,  construction  and  operation  5 

of  street  railways,  extend  its  railway  into  such  other  cities  and  towns  6 

in  the  commonwealth  as  the  department  shall,  on  application  of  such  7 

company,  and  after  public  notice  and  a  hearing,  certify  that  the  public  8 

necessity  and  convenience  require.    An  attested  copy  of  such  certificate  9 

shall,  within  three  days  after  it  is  granted,  be  filed  by  the  department  in  10 

the  office  of  the  state  secretary.  1 1 


Connecting 
location. 
1898,  578, 
R.  L.  112, 
1906,  46.i 
§§  32,  158, 


III 


Section  40.  A  company  whose  petition  for  a  location,  necessary,  in 
I  \\-  the  judgment  of  the  department,  to  furnish  proper  transportation  facili- 
ties between  two  cities,  or  two  towns,  or  a  city  and  town,  has  in  whole  or 
in  part  been  granted  or  refused,  or  has  been  neither  granted  nor  refused 
within  three  months  after  the  filing  thereof,  may,  within  thirty  days  of 
such  grant  or  refusal  of  a  location,  or  the  expiration  of  said  three  months, 
apply  to  the  department  for  such  location.  If  it  shall  appear  at  a  hearing 
on  said  application,  after  such  notice  to  the  board  of  aldermen  or  the  8 
selectmen,  and  to  all  persons  who  own  real  estate  abutting  upon  any  way  9 
in  which  such  location  was  asked  for,  by  publication  or  otherwise,  as  the  10 
department  orders,  that  the  company  has  already  been  granted  and  has  11 
accepted  locations  for  a  street  railway  in  two  cities,  or  two  towns,  or  a  12 
city  and  town,  adjoining  the  city  or  town  where  such  location  has  been  13 
asked  for,  or  has  already  been  granted  and  has  accepted  locations  for  a  14 
street  railway  in  two  adjoining  cities,  or  two  adjoining  towns,  or  an  ad-  15 
joining  city  and  town,  and  that  a  location  is  necessary  to  connect  such  16 
existing  locations,  the  department  may,  if  it  finds  that  public  necessity  17 
and  convenience  so  require,  enter  a  decree  granting  a  connecting  location.  IS 
In  granting  the  location  the  department  may  prescribe  the  appliances  19 
and  impose  the  conditions  and  obligations  which  are  specified  or  referred  20 
to  in  section  seven  relative  to  the  granting  of  original  locations.    Such  21 


Chap.  IGl.]  street  railways.  1767 

22  location  shall  be  the  true  location,  if,  within  thirty  days  after  the  issue  of 

23  notice  to  the  company  of  the  entry  of  said  decree,  the  directors  shall  file 

24  a  written  acceptance  of  such  location  with  the  department;    otherwise, 

25  said  location  shall  be  void. 

1  Section  41.     A  company  may  piu-chase  and  hold  real  and  personal  ^n^\g"jate" 

2  estate  necessary  or  convenient  for  the  operation  of  its  railway;    but  it  stock  and    ' 

3  shall  not,  except  as  provided  in  section  sixty-four,  directly  or  indirectly,  street  railway 

4  subscribe  for,  take  or  hold  stock  or  bonds  of  any  sucli  company  orfjanized  i864?229.^§  13. 

5  under  general  laws  unless  specially  so  authorized  by  the  general  coiu-t.      Jgyi;  2o?'§  la' 

p.  S.  113,  §  IS.  R.  L.  112,  §  26.  1906,  463,  III,  §§  33,  158.  187  Mass.  536. 

1  Section  42.     A  company  may,  except  in  Boston,  acquire,  hold,  main-  Pleasure 

2  tain  and  equip  land  for  purposes  of  recreation  and  for  pleasure  resorts,  ilgs.'lie. 

3  provided  that  the  department  shall  find  that  the  acquisition,  equipment  H  L.^ifo,  5  76, 

4  and  maintenance  of  such  land  for  such  purposes  and  the  cost  thereof  and  Js^ij^fls"'' 

5  other  circumstances  relating  thereto  are  consistent  with  the  public  inter-  2il\P'*'  ss-i 

6  est.    Such  recreation  and  pleasure  resorts  shall  be  subject  in  the  same 

7  manner  as  other  places  of  amusement  to  the  supervision  and  regulation  of 
S  the  local  authorities  of  the  cities  or  towns  where  situated,  and  shall  be 
9  subject  to  such  further  restrictions  as  the  department  may  from  time  to 

ID  time  impose.    No  company  shall  sell  intoxicating  liquors  or  allow  them  to 

1 1  be  sold  within  the  limits  of  any  resort  held  or  maintained  by  it ;  nor  shall  it 

12  sell  without  the  appro\'al  of  the  department  any  land  so  acquired.    No 

13  company  shall  contribute,  directly  or  indirectly,  by  payment  of  money 

14  or  otherwise,  except  in  such  cases  and  to  such  extent  as  the  department 
1.")  shall  first  approve,  to  the  establishment,  equipment  or  maintenance  of 
10  any  recreation  park  or  pleasure  resort  not  owned  by  such  company. 

1  Section  43.     A  company  may  use  electricity,  or  such  other  motive  Motive 

2  power,  other  than  steam,  as  the  department  may  permit.     1864,  229,  |  34.       po»er. 

1871,  381,  §  44.  R.  L.  112,  §  51.  ISS  Mass.  250. 

P.  S.  113,  §  39.  1906,  463,  HI,  §§  35,  158.  196  Mass.  329. 

1  Section  44.     Any  company,  with  the  approval  of  the  department,  May  acquire 

2  may  acquire,  own  and  operate,  for  the  transportation  of  passengers  or  motorcars. 

...  .  .  1918   226    §  1 

3  freight,  motor  vehicles  not  running  upon  rails  or  tracks,  but  in  such  1919!  37ii 

4  operation  shall  be  subject  to  sections  forty-five  to  forty-nine,  inclusive,       ' 

5  of  chapter  one  hundred  and  fifty-nine. 

1  Section  45.     A  company  may,  for  all  purposes  necessary  or  reasonably  Power  to 

2  incident  to  the  construction,  maintenance  or  operation  of  its  railway,  "ncTtransmft 

3  generate,  manufacture,  use  and  transmit  electricity  in  any  city  or  town  f9i''i*"442. 

4  where  authorized  to  operate  its  railway,  and  may  erect  and  maintain 

5  therefor,  as  a  part  of  its  railway,  and  subject  to  sections  seven,  seventy, 
G  seventy-one  and  seventy-seven,  relati^'e  to  tlie  grant  and  revocation 

7  of  authority  therefor,  poles  and  trolley,  feed  and  stay  wires,  and  other 

8  proper  devices  for,  or  used  in  connection  with,  the  transmission  of  elec- 

9  tricity,  of  materials  and  workmanship  prescribed  in  the  grant  of  au- 

10  thority  therefor,  in,  over  and  under  any  ways  and  bridges  in  any  such 

11  city  or  town;   provided,  that  authority  to  erect  and  maintain  the  same 

12  is  granted  by  the  board  of  aldermen  of  the  city  or  selectmen  of  the 

13  town,  respectively;  and  may  also  erect  and  maintain  such  poles,  wires 

14  and  other  devices  upon  and  over  any  private  land,  with  the  consent  of 

15  the  owners  thereof. 


1768 


STREET   RAILWAYS. 


[Chap.  161. 


Connectinj 
companies 
Joint  use 
of  tracks 


Section  46.     A  company  may  permit  another  street  raOway  company     1 

to  operate  cars  over  its  tracks  to  such  extent  and  under  such  rules  and    2 

^^t  ni  I  Vs  regulations  as  the  department  deems  consistent  with  the  public  safety.     3 


R. 


1906,463,  HI,  §§36,  158. 


Regulation 
of  interchantre 
of  traffic 
and  cars. 

1863,  223, 
§§  1-5. 

1864.  229, 
§§  29-31. 
1871,381, 
§§3S-41. 
1874,  29, 
§§  12-14. 
P.  S.  113, 

§§  48-52,  55. 
ISSS,  278,  §  1. 
R.  L.  112, 
§§  77-81,  84. 
1911,  487. 


Use  of  rail- 
road tracks. 
1910,  596. 


Section  47.  The  department  may,  on  petition  of  a  company  or  of  1 
any  interested  party,  after  notice  and  a  public  hearing,  determine  the  2 
reasonable  conditions  which  shall  govern  the  interchange  of  traffic  and  3 
cars  between  companies,  and  may,  wherever  it  is  reasonable  and  con-  4 
sistent  with  the  public  interest,  order  such  company  to  receive  and  con-  5 
xey  over  its  tracks  the  cars  of  another  such  company  at  such  times  and  6 
o\-er  such  routes  and  upon  such  terms,  including  reasonable  compensa-  7 
tion,  as  the  department  may  prescribe;  provided,  that  a  company  shall  8 
have  control  of  and  responsibility  for  the  management  and  operation  of  9 
all  cars  while  upon  its  railway  as  fully  as  if  it  owned  them.  The  depart-  10 
ment  may  also  recommend  such  joint  rates,  fares  and  charges  as  are  con-  1 1 
sistent  with  the  provisions  of  any  special  charter  of  any  company,  speci-  12 
fying  at  the  same  time  and  in  every  instance  the  part  of  the  joint  rate,  13 
fare  or  charge  to  which  each  company  affected  thereby  shall  be  entitled,  14 
and  may  make  such  other  recommendations  as  seem  appropriate  to  the  15 
circumstances  of  each  particular  case.  16 


Section  48.  A  company,  with  the  consent  of  a  railroad  corporation 
owning  tracks,  may,  to  such  extent  and  subject  to  such  terms  and  regula- 
tions as  the  department  may  approve  or  prescribe,  operate  cars  upon  and 
over  such  tracks  of  said  railroad  corporation  as  are  equipped  for  opera- 
tion by  the  electric  system  of  motive  power,  and  may  connect  its  own 
tracks  with  the  tracks  of  such  railroad  in  such  manner  as  may  be  agreed 
upon  by  the  two  companies  and  approved  by  the  department. 


Street 
sprinkling 
cars. 
1897,  315. 


Section  49.     A  company  may  allow  street  sprinkling  cars  or  similar 

apparatus  to  be  used  upon  its  tracks,  may  furnish  the  motive  power  and 

K-  L.ri|.  5  54.  use  of  tracks  or  other  facilities,  and  may  make  contracts  therefor;   but 

■"--"'     '    this  section  shall  be  operative  only  to  such  extent  and  subject  to  such 

regulations  and  restrictions  as  the  department,  ha\'ing  regard  to  the 

necessities  of  public  travel,  may  approve. 


i  37,  158. 


Gravel,  etc., 
cars. 

1898,  328. 
R.  L.  112,  §  55. 
1902,  288,  §  1. 
1906,463.  Ill, 
§§  38,  158. 
190  Mass.  527. 


Section  50.  A  company  may,  with  the  consent  of  the  board  of  alder-  1 
men  or  the  selectmen,  convey  in  cars  over  its  tracks  snow,  ice,  stones,  2 
gravel,  dirt,  or  street  sweepings,  taken  from  any  street  or  way  over  or  3 
tlirough  which  its  tracks  are  located,  in  order  to  keep  said  street  or  way  4 
in  proper  condition  for  travel,  or  may-convey  to  any  point  on  its  line,  or  5 
deliA-er  to  any  connecting  line  or  any  other  such  company,  necessary  6 
material  for  use  in  constructing,  grading,  repairing  or  improving  any  7 
street  or  way  in  any  city  or  town,  or  any  state  highway,  whether  on  the  8 
line  of  any  such  company  or  not,  and  may  make  contracts  with  cities,  9 
towns,  the  di\ision  of  highways  of  the  department  of  public  works,  and  10 
with  other  such  companies  for  the  transportation  of  such  material.  11 


oth'er'sutpiies.        Section  51.     A  compauy  may  convey  in  cars  over  its  tracks  coal  and 
§^3°9^.'  *^^' '"'    other  supplies  for  its  own  u.se. 


190  Mass.  527. 


Carriers 
of  mail. 


Section  52.     A  company  may  carry  the  United  States  mail. 

1901,  254.  R.  L.  112,  |  75.  1906,  463,  III,  §§  40,  158. 


Chap.  161.]  street  railw.vys.  1769 

1  Section  5.3.     A  company,  on  petition  of  any  interested  party,  may  Companies 

rji  '^i?  \^  ^  J.J.J   may  become 

2  become  a  common  carrier  or  newspapers,  baggage,  express  matter  and  common 

3  freight,  upon  such  parts  of  its  railway  and  subject  to  such  orders,  rules  fright!  etc. 

4  or  regulations  as  may  from  time  to  time  be  made,  established  or  pre-  r  °l'.  m',  §  75 

5  scribed  by  the  board  of  aldermen  or  the  selectmen,  in  this  section  called  J^o^,  202. 

6  the  licensing  authorities.    Any  such  petitioner  or  any  company,  aggrieved  wo'''.'  ■K'-'.  ni, 

7  by  such  orders,  rules  or  regulations,  or  in  case  of  failure  of  the  licensing  1907, 402" 

8  authorities  of  any  city  or  town  to  act  upon  such  petition  within  thirty 

9  days  of  its  presentation,  may  appeal  to  the  department,  whose  decision, 

10  after  public  notice  and  hearing,  shall  be  made  within  thirty  days  of  the 

11  said  appeal  and  shall  be  final.    All  orders,  rules  or  regulations  made, 

12  established  or  prescribed  as  aforesaid  shall  be  enforced  in  the  manner 

13  provided  in  section  forty  of  chapter  one  hundred  and  fifty-nine.     Any 

14  company  acting  under  the  authority  herein  granted  shall  be  subject  to 

1 5  all  laws  relating  to  common  carriers  in  so  far  as  consistent  herewith.    The 

16  authority  conferred  upon  any  company  by  said  licensing  authorities  by 

17  virtue  of  this  section  may  be  revoked  at  any  time  by  said  licensing  au- 

18  thorities  if,  after  public  notice  and  hearing,  they  determine  that  the 

19  public  interest  so  requires;   provided,  that  any  company  or  interested 

20  party,  aggrieved  at  such  revocation,  may  appeal  to  the  department, 

21  whose  decision,  after  public  notice  and  hearing,  shall  be  made  within 

22  thirty  days  of  the  said  appeal  and  shall  be  final  and  shall  be  enforceable 

23  as  prov-idetl  in  section  forty  of  chapter  one  hundred  and  fifty-nine. 

L.AND. 

1  Section  54.     Except  as  provided  in  this  chapter  or  chapter  one  hun-  Private  land. 

2  dred  and  fifty-nine  or  one  hundred  and  sixty,  and  except  for  the  purpose  §§°3,'4.°^' 

3  of  reaching  its  car  barns  or  repair  shops,  and  of  reaching  and  providing  f^J^-  Hf  j\f^- 

4  convenient  terminals  in  parks  and  pleasure  resorts  situated  upon  the  line  flitf'rli^- 

5  of  its  railway,  and  of  reaching  its  freight  yards  and  terminals,  and  of 

6  maintaining  spurs  and  sidings,  and  for  other  purposes  incident  to  per- 

7  forming  the  business  authorized  by  the  preceding  section,  a  company  shall 

8  not,  unless  authorized  by  special  act  of  the  general  court,  construct  or 

9  operate  any  part  of  its  railway  outside  the  limits  of  a  public  way  or  bridge ; 

10  but  such  a  company  which,  prior  to  Jime  fourteentli,  nineteen  hundred 

1 1  and  one,  without  special  legislative  authority  therefor  constructed  any  part 

12  of  its  railway  upon  private  land,  with  the  consent  of  the  owners  thereof, 

13  or  upon  land  leased  or  purchased  by  such  company,  or  which  prior  to  said 

14  date  purchased  or  leased  land  for  the  purpose  of  constructing  its  railway 

15  thereon,  or  which  prior  to  said  date  after  public  notice  and  a  hearing  ob- 

16  tained  the  approval  of  the  board  of  aldermen  of  a  city  or  of  the  selectmen 

17  of  a  town  to  the  construction  of  a  part  of  its  railway  upon  private  land 

18  within  such  city  or  town,  and  prior  to  said  date  actually  with  the  consent 

19  of  the  owners  of  the  land  began,  or  obtained  their  consent  to  begin,  such 

20  construction,  may  construct,  maintain  and  operate  its  railway  upon  such 

21  private  land,  subject  to  the  provisions  of  this  chapter  conferring  upon 

22  the  department  control  over  street  railwavs  constructed  upon  ])ri\'ate 

23  land. 

1  Section  55.     A  company,  organized,  or  in  process  of  organization.  Location  by 

2  under  the  laws  of  the  commonwealth,  having  first  obtained  the  approval  fease'^on^  °^ 

3  of  the  board  of  aldermen  of  the  city  or  of  the  selectmen  of  the  town  where  ?9oY  m'^^i 

4  private  land  is  situated  to  the  construction  of  its  railway  thereon,  may,  rlii2!§9. 


1770  STREET   RAILWAYS.  [ChAP.    161. 

i90fi,  4(53,  III,  for  the  purpose  of  avoiding  grades  and  curves  in  public  ways,  and  for  5 
sucli  other  pm-poses  incidental  to  the  use  of  such  ways,  as  the  depart-  6 
ment  may  in  the  manner  hereinafter  provided  approve,  petition  the  de-  7 
partment  for  authority  to  construct  and  maintain  parts  of  its  railway  or  8 
extension  thereof  upon  such  priA'ate  land  outside  the  limits  of  such  w^ys.  9 
The  company  in  such  petition  shall  set  forth  the  purpose  for  which  such  10 
authority  is  desired  in  each  case,  and  shall  file  with  the  petition  a  plan,  in  11 
such  form  and  upon  such  scale  as  the  department  prescribes,  of  the  rail-  12 
way  or  extension,  and  of  the  localities  where  it  is  desired  to  construct  the  13 
same  upon  private  land,  and  the  department,  after  public  notice  and  a  li 
hearing,  if  satisfied  that  public  necessity  and  convenience  demand  that  15 
parts  of  the  railway  or  extension  should  be  built  outside  the  limits  of  such  16 
ways,  substantially  on  the  private  land  selected,  and  that  the  approval  of  17 
the  board  of  aldermen  or  the  selectmen  of  the  city  or  town  where  the  18 
land  is  situated  has  been  obtained  as  aforesaid,  may  authorize  the  peti-  19 
tioner  to  construct  and  operate  its  railway  or  extension  upon  and  over  20 
private  land,  and  for  that  purpose  to  pm-chase  or  lease  private  land  or  21 
rights  therein  and  thereover,  in  such  cases  and  to  such  extent  as  the  22 
department  deems  public  necessity  and  con^■enience  in  the  construction  2.3 
and  operation  of  the  railway  or  ex"tension  require.  The  department  in  24 
granting  such  authority  may  determine  the  kind  of  construction  to  be  25 
used,  the  grade  and  alignment  of  the  tracks,  and  may  order  such  special  26 
appliances  to  be  furnished  and  such  safeguards  to  be  adopted  in  the  con-  27 
struction  and  operation  of  the  railway  or  extension  upon  private  land  as  28 
it  deems  public  necessity,  convenience  and  safety  demand.  29 

o/k)cation             SECTION  oG.     A  Street  railway  constructed  upon  pri\'ate  land  shall  not  1 

OT  le^e'ra"      t)e  opcucd  for  public  use  until  the  department,  after  examination,  certifies  2 

itJoT'los"!'-'     *^^^*  ^^^  laws  relative  to  its  construction  and  all  requirements  of  the  de-  3 

inofi' 4m' ni "'  Partment  have  been  complied  with,  and  that  it  appears  to  be  in  a  safe  4 

§§  44, 13S.    '    condition  for  operation.     The  department  may,  at  any  time  after  the  5 

opening  of  a  street  railway  for  public  use,  order  such  changes  and  im-  6 

provements   to   be   made   in  the  construction  and  operation  of  any  7 

part  thereof  upon  private  land  as  it  deems  necessary  for  public  safety  8 

in  the  use  thereof;   and  such  order  shall  be  complied  with  by  such  9 

company.  10 


toTocMfonTon       Section  57.     A  compauy,  whose  railway  is  constructed  in  part  outside  1 

im'loi.^l's     the  limits  of  public  ways,  shall,  in  respect  of  the  eciuipment,  use  and  2 

ioofi.'  Ifi.l.'  111°'  operation  of  its  railway  and  transportation  thereon,  be  subject  to  the  laws  3 

§ j  45,  los.         ^elati^•e  to  street  railway  companies,  as  fully  as  if  its  railway  were  located  4 

wholly  within  the  limits  of  public  "ways.  5 

em|nent°do-          SECTION  58.     A  domcstic  company  may  apply  to  the  board  of  aldermen  1 

pm-atTiand.      "^  ^  ^'^^Y  Or  to  the  Selectmen  of  a  town  where  it  desires  to  take  land,  for  2 

1906' 483' III     ^^  adjudication  that  public  necessity  and  convenience  require  that  cer-  3 

•'i3*M ^^s^'s4      ^^'^  land,  or  interests  in  land,  as  described  in  its  petition,  and  for  the  4 

specific  purpose  therein  stated,  be  taken  by  such  company,  to  enable  it,  5 

in  constructing  its  street  railway,  or  extension  thereof,  to  a"\"oid  dangerous  6 

curves  or  grades  existing  in  the  highways,  or  for  other  similar  purposes  7 

incident  to  and  not  inconsistent  with  its  corporate  franchise  of  operating  S 

a  railway  to  accommodate  public  tra^-el  in  public  ways.    If  the  board  to  9 

which  such  application  is  made  finds  in  favor  of  the  petitioner,  after  tlie  10 


Chap.  IGl.]  street  railways.  1771 

11  notice  and  hearing  required  by  law  in  the  case  of  the  grant  of  locations  for 

12  street  railways  in  public  ways,  tlie  company  may,  upon  compljang  with 

13  the  provisions  prescribed  for  railroad  corporations  by  section  eighteen 

14  of  chapter  one  hundred  and  sixty,  apply  to  the  department  for  a  certificate 

15  that  pubhc  necessity  and  convenience  require  the  construction  of  the 

16  railway  between  the  termini  and  substantially  upon  the  route  fixed  by 

17  the  agreement  of  association  in  case  of  a  company  organized  under  the 
IS  general  la\\s  and  by  the  charter  of  a  company  created  by  special  statute, 

19  or  of  the  extension  substantially  on  the  locations  already  granted  therefor, 

20  and  for  approval  of  the  adjudication  of  the  board  of  aldermen  or  of  the 

21  selectmen  as  to  the  necessity  and  reasons  for  taking  land  or  rights  in  land 

22  in  every  city  or  town  where  such  adjudication  has  been  made.     If  the 

23  department,  after  public  notice  and  a  hearing,  at  which  all  persons  or 

24  corporations  alleging  that  they  would  be  injured  by  the  construction  of 

25  the  railway  shall  be  deemed  to  be  interested  parties  and  entitled  to  be 

26  heard,  grants  the  certificate  as  prayed  for,  the  petitioner  may  take  by 

27  eminent  domain  under  chapter  seventy-nine  any  land  or  rights  in  land 

28  the  taking  of  which  has  so  been  approved  by  the  department. 

1  Section  59.     A  company  acting  under  authority  of  the  preceding  same  subject. 

2  section  shall  be  subject  to   sections   seventy-fi^'e,   seventy-six,  eighty,  jgoe!  les!  iiii 

3  eighty-one,  eighty-six,  ninety  to  ninety-three,  inclusive,  ninety-six  and  ^^  *''•  ^^*' 

4  two  hundred  and  fifty-two  of  chapter  one  hundred  and  sixty,  and,  if  its 

5  railway  crosses  a  public  way  or  another  street  railway,  except  where  its 

6  railway  is  constructed  ^\ithin  the  limits  of  another  public  way  crossing 

7  such  way  or  street  railway,  it  shall  also  be  subject  to  sections  ninety-seven 

8  to  one  hundred  and  three,  inclusive,  one  hundred  and  forty,  one  hundred 

9  and  forty-one,  and  one  hundred  and  forty-se^•en  to  one  hundred  and 

10  fifty,  inclusive,  of  said  chapter;  pro\'ided,  that  wherever  by  said  sections 

11  any  jurisdiction  is  conferred  upon  a  board  of  county  commissioners, 

12  the  same  shall  in  the  case  of  a  company  be  exercised  by  the  board  of 

13  aldermen  of  the  city  or  by  the  selectmen  of  the  town  where  the  land  or 

14  other  property  proposed  to  be  taken  is  situated. 

1  Section  60.    A  company  authorized  to  construct  its  railway  at  grade  same  subject. 

2  across  a  public  way  in  any  place  where  such  crossing  is  not  a  part  of  the  1906,'  463]  iii; 

3  crossing  of  such  way  by  another  public  way,  and  incident  to  the  construe-  ^^  '**■  ^''^■ 

4  tion  of  the  street  railway  longitudinally  wdthin  the  limits  of  such  other 

5  public  way,  shall,  in  any  proceedings  for  the  abolition  of  such  grade 

6  crossing,  be  considered  as  a  railroad  corporation  under  sections  sixty-five 

7  to  eighty-two,  inclusi\'e,  of  chapter  one  hundred  and  fifty-nine  if  such 

8  company  has  taken  any  land  or  other  property  under  authority  of  the 

9  two  preceding  sections;   and  it  may  bring  a  petition,  or  be  made  a  re- 

10  spondent  to  any  petition  brought  by  any  of  the  other  parties  named  in 

11  said  sections,  in  the  same  way  and  be  subject  to  the  same  liabilities  as  if 

12  it  were  a  railroad  corporation. 

1  Section  61.    The  three  preceding  sections  shall  not  enlarge  the  extent  ?™« ?"'?J|<^*- 

^  !•  1  .    1  .1  1  1  1    1903, 47fi,  §  4. 

2  or  purposes  tor  which  a  street  railway  may  be  constructed  or  operated  woe,  483.  in, 

3  outside  the  limits  of  public  ways  as  defined  and  limited  in  sections  fifty- 

4  four  and  fifty-five. 


1772 


STREET  RAILWAYS. 


[CH.VP.   161. 


LEASE  OR  SALE  OF  RAILWAY. 

tob'n^sed'or  SECTION  62.  A  Company  shall  not  lease  or  contract  for  the  operation 
8oW,  except,  of  its  railway  for  a  period  of  more  than  ninety-nine  years  without  the  con- 
1S64. 229. 1  24.  sent  of  the  general  court,  nor,  except  as  provided  in  the  three  following 
p.  s.'ii3,'§66.'  sections  and  in  section  one  hundred  and  twenty-three,  shall  it  sell  its 
R.  h.  112;  §  So.  railway  unless  authorized  so  to  do  by  its  charter  or  by  special  act  of  the 
iimIIi'.  158.  general  court.  ii.yien.Go. 

173  Mass.  286.  191  Mass.  522.  206  Mass.  215.  Op.  A.  G.  (1919)  20. 


Sale  or  con- 
solidation. 
1897,  269.  §  1. 
R.  L.  112.  §  86. 
1906,  463,  III, 
§§  52,  158. 
1911.  357. 
209  Mass.  213. 


Section  6.3.  A  domestic  company  may  sell  and  convey  the  whole  1 
or  a  part  of  its  franchise  and  property  to,  or  may  consolidate  with,  any  2 
other  such  company  whose  railway  connects  with,  intersects  or  forms  3 
a  continuous  line  with  its  own,  if  the  facilities  for  travel  on  the  railway  4 
of  each  of  said  companies  shall  not  be  thereby  diminished,  or  the  rates  of  5 
fare  increased,  and  such  other  company  may  purchase  of  or  consolidate  6 
with  it  as  aforesaid;  but  such  purchase  and  sale  or  consolidation  shall  7 
not  be  valid  or  binding  until  its  terms  have  been  agreed  to  by  a  majority  8 
of  the  directors,  and  have  been  approved,  at  meetings  called  therefor,  by  9 
a  vote  of  two  thirds  in  interest  of  the  stockliolders  of  each  of  the  con-  10 
tracting  companies,  and  by  the  department  as  required  by  section  fifty-four  1 1 
of  chapter  one  hundred  and  fifty-nine.  Whenever  a  company  sells  and  12 
conveys  the  whole  or  a  part  of  its  franchise  and  property  to,  or  consoli-  13 
dates  with,  any  other  company,  every  stockholder  of  both  the  purchasing  14 
or  consolidated  company  and  of  the  selling  company  shall  be  deemed  15 
to  assent  to  the  terms  of  purchase  and  sale  or  of  consolidation,  when  16 
approved  by  the  department  in  accordance  with  any  provisions  of  law  17 
requiring  such  approval,  unless,  within  thirty  days  after  the  date  of  such  18. 
approval,  he  shall  file  with  the  clerk  of  the  department  a  writing,  declar-  19 
ing  his  dissent  from  said  terms  and  stating  the  number  of  shares  held  by  20 
him  and  the  number  of  the  certificates  evidencing  the  same;  provided,  21 
that,  as  against  any  stockholder  under  any  legal  incapacity  to  act  for  22 
himself  and  having  no  legal  guardian,  said  period  of  thirty  days  shall  not  23 
begin  to  run  until  the  removal  of  such  incapacity  by  the  appointment  of  24 
a  legal  guardian,  or  otherwise.  The  shares  of  any  stockholder  so  dissent-  25 
ing  shall  be  acquired  by  the  purchasing  or  consolidated  company,  and  26 
shall  be  valued,  and  the  value  thereof  paid  or  tendered  to,  or  deposited  27 
to  or  for  the  account  of,  such  stockholder  in  the  manner  following :  Within  28 
sixty  days  after  the  filing  as  aforesaid  of  his  dissent  from  the  terms  of  such  29 
sale  or  consolidation,  the  said  dissenting  stockholder  or  the  purchasing  30 
or  consolidated  company  shall  file  a  petition  with  the  supreme  judicial  31 
court,  sitting  within  and  for  the  county  where  said  stockholder  resides  32 
or  in  any  county  in  which  said  company  operates  any  part  of  its  railway,  .33 
which  petition,  if  filed  by  the  company  in  a  county  other  than  that  of  the  34 
stockholder's  residence,  may  upon  his  application  be  removed  to  the  35 
county  where  the  said  stockholder  resides,  setting  forth  the  material  36 
facts  and  praying  that  the  value  of  such  dissenting  stockholder's  shares  37 
may  be  determined.  Thereupon,  after  such  notice  to  all  parties  con-  38 
cerned  as  it  deems  proper,  said  court  shall  make  an  order  requiring  such  39 
dissenting  stockholder's  certificates  of  stocks  to  be  deposited  with  the  40 
clerk  of  said  court,  and  shall  appoint  three  commissioners  to  ascertain  41 
and  report  the  value  of  such  dissenting  stockholder's  shares  on  the  day  42 
of  the  approval  by  the  department  of  the  terms  of  the  agreement  of  43 
purchase  and  sale  or  consolidation.    Said  report  shall  be  made  to  the  44 


Chap.  IGl.]  street  railways.  1773 

45  court  as  soon  as  practicable,  and,  after  clue  notice  to  the  parties  in  in- 

46  terest,  shall  be  accepted  by  the  court,  unless  before  such  acceptance 

47  either  of  the  parties  to  said  proceedings  shall  claim  a  trial  by  jury,  in 

48  which  case  the  court  shall  order  the  value  of  said  shares  to  be  tried  and 

49  determined  by  a  jury  in  the  same  manner  as  other  civil  cases  are  tried 

50  in  said  court.    The  said  commissioners'  report,  or  the  verdict,  when  ac- 

51  cepted  by  the  court,  shall  be  final  and  conclusive  as  to  the  value  of  such 

52  dissenting  stockholder's  shares,  and  the  amount  so  ascertained  as  such 

53  value  shall  at  once  be  paid  or  tendered  to  such  stockholder;  or,  if  such 

54  payment  or  tender  be  impracticable  for  any  cause,  shall  be  paid  into 

55  court.    Upon  such  payment,  tender  or  deposit,  the  shares  of  such  dis- 

56  senting  stockholder  and  the  certificates  thereof  shall  become  the  property 

57  of  the  purchasing  or  consolidated  company,  whose  right  and  title  thereto 

58  may  be  enforced  by  the  court  by  any  appropriate  order  or  process.    Ex- 

59  ceptions  may  be  taken  to  any  ruling  or  order  of  said  court,  to  be  heard 

60  and  determined  by  the  full  court  as  in  other  civil  cases;  and  said  court 
01  may  make  all  such  orders  for  the  enforcement  of  the  rights  of  any  party 

62  to  the  proceedings,  for  the  consolidation  of  two  or  more  petitions  and 

63  their  reference  to  the  same  commissioners,  for  the  consolidation  of  claims 

64  for  a  jury  trial  and  the  trial  of  two  or  more  cases  by  the  same  jury,  and 

65  for  the  payment  of  interest  upon  the  value  of  a  stockholder's  share 

66  as  determined,  and  the  payment  of  costs  by  one  party  to  the  other,  as 

67  justice  and  equity  and  the  speedy  settlement  of  the  matters  in  contro- 

68  versy  may  require. 

1  Section  64.     The  purchasing  or  consolidated  company  may,  subject  increase  of 

2  to  section  twenty-eight,  increase  its  capital   stock  and  issue  bonds  to  l'iS\lsue°oi ' 

3  an  amount  necessary  for  the  purposes  authorized  in  the  preceding  sec-  is97f269,  §  2. 

4  tion,  and  may  exchange  its  securities  for  those  of  the  selling  or  merged  ^g^-  Ij^-  f j^- 

5  company,  if  the  aggregate  amount  of  the  capital  stock  and  debt  of  the  §5  53,  iss. 

6  two  contracting  companies  shall  not  by  reason  of  such  purchase  and 

7  sale  or  consolidation  be  increased. 

1  Section  65.     Such  purchasing  or  consolidated  company  shall  have  Powers  and 

2  the  powers  and  privileges,  and  be  subject  to  the  duties,  liabilities  and  consohdlted 

3  restrictions,  of  the  company  selling  or  merged,  but,  except  as  provided  JsU^yPjeg'  §3 

4  in  this  chapter  or  chapter  one  hundred  and  fifty-nine,  no  right  to  con-  Pme' los' iif *' 

5  duct  an  express  business  or  to  be  a  common  carrier  of  merchandise  shall,  §§^54,  iss. 

6  by  reason  of  any  such  sale  or  consolidation,  be  allowed  over  any  location 

7  where  it  had  not  been  granted  prior  to  April  tenth,  eighteen  hundred  and 

8  ninety-seven. 

1  Section  66.     Two  domestic  companies,  whose  railways  connect  with  Operating  con- 

2  or  intersect  each  other  or  together  form  a  continuous  line,  may  contract  feases."" 

3  that  either  company  shall  perform  all  the  transportation  upon  and  over  H^i'i^^' 

4  the  whole  or  any  part  of  the  railway  of  the  other;  or  any  such  company  f^^^.-  ii|  |jP- 

5  may  lease  its  franchise,  property  and  railway  to  any  other  such  com-  §§55,  iss. 

6  pany;  but  the  facilities  for  travel  on  either  of  the  railways  of  said  com- 

7  panics  shall  not  be  thereby  diminished  or  the  rates  of  fare  increased. 

8  Such  contract  or  lease  shall  not  be  valid  or  binding  until  its  terms  have 

9  been  agreed  to  by  a  majority  of  the  directors,  and  have  been  approved, 

10  at  meetings  called  therefor,  by  a  vote  of  a  majority  in  interest  of  the 

11  stockholders  of  each  of  said  companies,  and  by  the   department  as 


1774 


STREET   RAILWAYS. 


[Chap.  IGl. 


required  by  section  fifty-four  of  chapter  one  hundred  and  fifty-nine.     The  12 

income  arising  from  such  contracts  or  leases  shall  be  subject  to  the  13 

provisions  of  law  relative  to  the  reduction  of  fares  in  the  same  manner  14 

as  that  arising  from  the  use  of  the  railway's.    Such  railways  shall  be  15 

considered  as  connecting  with  or  intersecting  each  other,  or  forming  a  16 

continuous  line,  if  one  of  them  connects  with  or  intersects  or  forms  a  17 

continuous  line  with  a  railway  leased  to  or  operated  by  the  other  under  18 

a  contract  authorized  bv  this  section.  19 


Powers  under 
contracts  or 


1897,  213.  §  4. 
R.  L.  112,  §90. 
1906,  463.  Ill, 
§§  56,  158. 


Section  67.     A  company  which  contracts  for  the  operation,  or  takes  1 

a  lease,  of  another  railway  shall,  subject  to  the  terms  of  such  contract  or  2 

lease,  have  and  enjoy  the  powers  and  privileges,  and  be  subject  to  the  3 

duties,  liabilities  and  restrictions  of  the  company  owning  it;  but  no  right  4 

to  carry  on  an  express  business  or  to  be  a  common  carrier  of  merchandise  5 

shall  be  allowed,  except  as  provided  in  this  chapter  or  chapter  one  hun-  6 

dred  and  fifty-nine,  over  any  location  where  it  had  not  been  granted  7 

prior  to  March  twenty-ninth,  eighteen  hundred  and  ninety-seven.  8 


Proceeds  of 
sale  not  to  be 
used  for 
dividends. 
1864,  229,  §  39. 
1871,381,  §51. 
P.  S.  113,  §  57. 
K.  L.  112,  §91. 
1906,463,111, 
§§  57,  158. 

Purchase  of 
connecting 
Jines. 
1910,  443. 


Section  68.     A  company  shall  not  appropriate  for  the  payment  of  1 

dividends  any  money  received  from  the  sale  of  any  portion  of  its  railway,  2 

unless  it  first  reduces  its  capital  stock  issued,  by  an  amount  which,  at  its  3 

par  value,  is  equal  to  the  amount  which  such  portion  of  its  railway  cost  4 

said  company.  5 

Section  69.     A  domestic  company  may  purchase  from  a  street  rail-  1 

way  company  incorporated  under  the  laws  of  another  state  so  much  of  2 

the  railway,  franchise  and  property  of  such  other  company  as  is  located  3 

or  used  and  exercised  within  this  commonwealth  when  the  railway  of  such  4 

other  company  connects  with,  intersects,  or  forms  a  continuous  line  with  5 

that  of  the  purchasing  company;  provided,  that  the  facilities  for  travel  6 

on  the  railway  of  each  of  said  companies  within  this  commonwealth  7 

shall  not  thereby  be  diminished,  or  the  rates  of  fare  increased;  and  pro-  8 

vided,  that  no  such  purchase  shall  be  valid  or  binding  until  the  terms  9 

thereof  have  been  approved  by  the  department  as  required  by  section  10 

fifty-four  of  chapter  one  hundred  and  fifty-nine.  11 


Kxtension  of 
location. 
1874,29,  §  11. 
P.  S.  113,  §21. 
1898,  578.  §  1"). 
R.  L.  112,  §30. 
1902,  399. 
1906,  463,  III, 
§§  64,  158. 
1909,  417,  §  2. 
121  Mass.  485. 
125  Mass.  51.5. 
175  Mass.  5I.S. 
231  Mass.  540. 
1  Op.  A.  G. 
392,  489. 


extension  of  location. 

Section  70.     The  board  of  aldermen  of  a  city  or  the  selectmen  of  a  1 

town,  on  petition  of  fifty  legal  voters,  or  on  petition  executed  in  accord-  2 

ance  M'ith  the  by-laws  or  a  vote  of  the  directors  of  a  company  whose  3 

tracks  are  located  in  said  city  or  town,  after  public  notice  and  a  hearing  4 

as  provided  in  section  seven,  may  grant  a  location  for  the  extension  of  the  5 

tracks  of  such  company,  and  prescribe  how  said  tracks  shall  be  laid  and  6 

the  kind  of  rails,  poles,  wires  and  other  appliances  to  be  used;  but  they  7 

shall  impose  no  terms  or  conditions  to  such  grant  in  addition  to  those  8 

imposed  by  general  laws  on  such  companies  in  force  on  October  first,  9 

eighteen  hundred  and  ninety-eight,  or  such  as  may  have  been  imposed  in  10 

the  grant  of  original  location  to  such  company  in  such  city  or  town  sub-  1 1 

sequent  to  said  date.     No  such  extension  of  a  location  shall  be  valid,  12 

until  the  department,  after  public  notice  and  a  hearing,  shall  certify  that  13 

such  extension  is  consistent  with  the  public  interest.     If  the  department  14 

requires  an  alteration  in  such  extension  before  so  certifying,  it  shall  15 

notify  the  board  of  aldermen  or  selectmen,  granting  such  extension,  of  16 


Chap.  161.]  steeet  railways.  1775 

17  such  alteration;  and  thereafter  said  board  of  aldermen  or  selectmen  may 
]S  amend  such  extension  in  accordance  with  such  alteration;    provided, 

19  that,  if  such  alteration  involves  a  change  in  the  route  of  the  railway, 

20  public  notice  and  a  hearing  shall  be  given  as  provided  in  the  case  of  the 

21  original  application  for  an  extension;    and  thereafter  the  department 

22  may,  as  a  part  of  the  original  proceedings  before  it,  certify  that  such  ex- 

23  tension  so  amended  is  consistent  with  the  public  interest.     An  extension, 

24  so  certified,  shall  be  a  valid  location,  if,  within  sixty  days  after  the  issue 

25  of  notice  of  said  certification  to  the  company,  it  files  a  written  acceptance 

26  of  such  extension,  executed  in  accordance  with  its  by-laws  or  a  ^'ote  of 

27  its  directors,  with  the  board  of  aldermen  or  selectmen.     An  extension 

28  granted  by  a  board  of  aldermen  or  selectmen,  but  refused  certification 

29  hereunder  by  the  department,  or  not  accepted  as  hereinbefore  proxnded, 

30  shall  be  void. 

ALTERATION   OF  LOCATION. 

1  Section  71.     The  board  of  aldermen  of  a  city  or  the  selectmen  of  a  Alteration  of 

2  town,  on  petition  executed  in  accordance  with  the  by-laws  or  a  vote  of  i°s64,'22b.  §  i4. 

3  the  directors  of  a  company  whose  tracks  are  located  in  said  city  or  town,  j^s'.'ns'lil; 

4  or  on  petition  of  any  interested  party,  after  public  notice  and  a  hearing  ^^l'  |J5'  I  if 

5  as  provided  in  section  seven,  mav  alter  the  location  of  the  tracks  in  the  1902, 399! 

^  •II-  1         1  •     "  1  1-  •  oil  1900,463.111, 

0  manner  prescribed  in,  and  subject  to,  the  preceding  section,    buch  alter-  §§  es,  iss. 
7  ation  shall  be  made  by  such  company  within  such  time,  and  the  expense  §§  .s.'e.  '' 


8  thereof  shall  be  borne  by  such  parties  and  in  such  proportions,  as  the  392^489. 


.A.  G 

392;. 
9  board  of  aldermen  or  selectmen  may  determine.     No  such  alteration  of 

10  a  location  shall  be  valid,  until  the  department,  after  public  notice  and  a 

11  hearing,  shall  certify  that  such  alteration  is  consistent  with  the  public 

12  interest.     If  the  department  requires  an  amendment  to  such  alteration 

13  before  so  certifying,  it  shall  notify  the  board  of  aldermen  or  selectmen 

14  of  such  amendment;  and  thereafter  the  board  of  aldermen  or  selectmen 
1.5  may  amend  such  alteration  in  accordance  with  the  said  amendment;  pro- 
1()  vided,  that,  if  the  amendment  involves  a  change  in  the  route  of  the  rail- 

17  way,  public  notice  and  a  hearing  shall  be  given  as  provided  in  the  case  of 

18  the  original  application  for  an  alteration;  and  thereafter  the  department 

19  may,  as  a  part  of  the  original  proceedings  before  it,  certify  that  such 

20  alteration  so  amended  is  consistent  with  the  public  interest.     An  alter- 

21  ation,  so  certified,  shall  be  a  valid  location,  if,  within  sixty  days  after 

22  the  issue  of  notice  of  said  certification  to  the  company,  it  files  a  ■wTitten 

23  acceptance  of  such  alteration,  executed  in  accordance  with  its  by-laws 

24  or  a  vote  of  its  directors,  with  the  board  of  aldermen  or  selectmen. 

TEMPORARY  LOCATIONS. 

1  Section  72.     The  several  boards,  departments  and  commissions  an-  Temporary 

2  thorized  by  law  to  grant  locations  to  companies  may,  to  enable  any  such  ioTo.'mI'. 

3  company  to  avoid  interruption  of  its  service,  on  petition  of  such  company 

4  or  of  any  interested  party,  grant  temporary  locations  for  the  tracks  of 

5  the  company  in  any  public  place  or  way,  or  may  approve  temporary  loca- 

6  tions  upon  private  land  without  notice  and  hearing.     The  body  granting 

7  or  approving  such  temporary  locations  may  place  a  limit  of  time  upon 

8  their  use,  and  if  unlimited  as  to  time  such  use  shall  terminate  after  such 

9  reasonable  time  as,  in  the  opinion  of  such  body,  will  permit,  without  in- 

10  terruption,  the  restoration  of  service  upon  the  locations  of  the  company. 

11  The  department  may  app^o^•e  such  temporary  locations  without  notice 

12  and  hearing. 


1776 


STREET   KAILWATS. 


[Chap.  161. 


the°Steratfon.°'  SECTION  73.  If  a  bridge  upon  which  a  company  is  authorized  to  lay  1 
i908,'266,'''^^'  ^^^  ^^^  tracks  is  being  or  is  to  be  altered,  rebuilt,  improved  or  repaired,  2 
§5 1. 3.  the  board  of  aldermen  of  a  city  or  the  selectmen  of  a  town  on  petition     3 

of  the  president  or  a  majority  of  the  directors  of  such  company  may  grant  4 
a  temporary  location  for  the  extension  of  the  tracks  of  such  company  in  5 
any  public  way  in  such  city  or  town  so  as  to  provide  such  connection  be-  6 
tween  the  existing  tracks  of  such  company  upon  either  side  of  such  bridge  7 
as  will  prevent  any  interruption  of  proper  transportation  facilities  by  S 
reason  of  such  alteration,  impro^-ement,  rebuilding  or  repair,  and  may  9 
prescribe  how  said  tracks  shall  be  laid  and  the  kind  of  rails,  poles,  wires  10 
and  other  appliances  to  be  used.  Such  location  shall  not  be  valid  unless  11 
the  board  of  aldermen  or  selectmen  file  with  the  clerk  of  the  city  or  town  12 
concerned  a  certificate  that  the  granting  of  the  location  is  consistent  13 
with  the  public  interest.  In  no  case  shall  a  location  be  valid  unless,  14 
within  thirty  days  after  the  filing  of  the  said  certificate  or  after  the  en-  15 
tering  of  a  decree  by  the  department,  a  majority  of  the  directors  of  the  16 
company  shall  file  with  the  body  granting  the  location  a  written  accept-  17 
ance  thereof.  IS 


Application  to 
department. 
1908,  266,  §  2. 


Termination 
of  temporary 
location. 
1908,  266,  §  4. 


Cost  of  tem- 
porary tracks 
reckoned  as 
part  of  ex- 
pense of  alter- 
ation of  grade 
crossing. 
1908,  266,  §  5. 


Section  74.  A  company  whose  petition  for  such  temporary  location 
has  been  refused  in  whole  or  in  part,  or  has  been  neither  granted  nor 
refused,  within  fourteen  days  after  the  filing  thereof,  may  apply  to  the 
department  for  such  temporary  location.  If  the  department  deems  public 
necessity  and  convenience  require  such  temporary  location,  it  may  enter 
a  decree  granting  the  same,  and  may  prescribe  the  use  of  such  appliances 
and  impose  such  conditions  and  obligations  as  it  deems  proper. 

Section  75.  A  company  which  is  granted  such  temporary  location 
for  the  extension  of  its  tracks  shall  not  maintain  them  nor  operate  cars 
over  them  beyond  the  period  during  which  the  operation  of  its  cars  over 
such  bridge  is  interrupted  by  reason  of  such  alteration,  improvement,  re- 
building or  repair,  and  at  the  end  of  such  period  shall  remove  its  tracks 
from  the  public  ways  upon  and  over  wliich  such  temporary  location  has 
been  granted. 

Section  76.  If  such  bridge  is  altered,  rebuilt,  improved  or  repaired 
under  sections  fifty-nine  to  sixty-four,  inclusi\'e,  of  chapter  one  hundred 
and  fifty-nine,  the  cost  of  construction  of  the  tracks  upon  and  over  such 
temporary  location  shall  be  reckoned  as  a  part  of  the  charges  and  expenses 
of  the  alteration,  improvement  or  repair  of  the  crossing,  to  be  apportioned 
by  the  special  commission  as  provided  thereunder. 


Revocation  of 

location. 

1S64,  229,  §  15. 

1871.  381, 

H  16,  17. 

P.  S.  113,  §§23, 

24. 

189S,  57S,  5  17. 

R.  L.  112,  §  32. 

1906,  463,  III, 

§§  66,  158. 

Ill  Mass.  232. 

184  Mass.  566. 

191  Mass.  522. 

199  Mass.  394. 

235  Mass.  95. 

245  U.  S.  674. 


revocation  of  location. 

Section  77.  The  board  of  aldermen  or  selectmen,  after  the  expiration  1 
of  one  year  from  the  opening  for  use  of  a  street  railway  in  their  city  or  2 
town,  and  after  public  notice  and  a  hearing  as  provided  in  section  seven,  3 
if  public  necessity  and  convenience  in  the  use  of  the  public  ways  so  re-  4 
quire,  may,  for  good  and  sufficient  reasons  to  be  stated  in  the  order  there-  5 
for,  revoke  the  location  of  a  street  railway  in  any  public  way  therein;  but  6 
unless,  within  thirty  days  after  such  order  of  re\'ocation,  the  company  7 
consents  thereto  in  ^^Titing,  such  order  shall  not  be  valid  until  approved  8 
by  the  department  after  public  notice  and  a  hearing.  Upon  the  approval  9 
of  such  order  of  revocation,  the  company  shall  remove  the  railway  in  con-  10 
formity  with  such  order  and  shall  put  the  surface  of  said  ways  disturbed  11 


ClL\P.    161.]  STREET  RAILWAYS.  1777 

12  by  such  renjoval  into  as  good  condition  as  the  adjacent  surface  of  said 

13  ways.     If  the  company  fails  to  comply  with  such  order  after  thirty  days' 

14  notice  of  the  approval  thereof,  the  board  of  aldermen  or  selectmen  may 

15  cause  it  to  be  executed  and  the  work  to  be  done  at  the  expense  of  the 

16  company,  and  such  expense  shall  be  recovered  in  tort. 

■WIDENING   OF  PUBLIC   WAY. 

1  Section  78.     If  application  is  made  for  a  location  in  a  public  way  PuWicway 

2  where  no  street  railway  tracks  are  located,  and  such  way  is  widened  un-  TsgirsTs.  §  in. 

3  der  chapter  eighty  or  eighty-two  by  an  order  declaring  the  widening  to  fg'oe,'  lit  inf ' 

4  be  necessary  for  public  convenience  for  the  purpose  of  granting  such  loca-  ^^  ^^'  ^^®- 

5  tion  of  street  railway  tracks  therein,  a  proportionate  share  of  the  expense 

6  of  such  ^N-idening  may  be  assessed  upon  a  company  accepting  a  location 

7  in  the  way  so  widened;  but  the  amount  of  such  assessment,  in  addition 

8  to  the  amounts  assessed  on  real  estate,  shall  not  exceed  one  half  of  the 

9  total  cost  of  such  widening. 

1  Section  79.     If  a  public  way  where  the  tracks  of  a  company  have  Alteration  or 

2  been  located  for  a  period  of  five  years  is  altered,  or  if  the  grade  thereof  is  of  pifbiio°way.^ 

3  changed  under  chapter  eighty  or  eighty-two,  the  company  shall  pay  such  ^^l\  fH]  |  34: 

4  proportionate  share  of  the  expense  thereof,  including  therein  the  neces-  sl^es^ris'"' 

5  sary  cost  of  changing  its  railway  to  conform  to  such  alteration  or  change 

6  of  grade,  as  may  be  assessed  upon  it,  provided  that,  if  betterments  are 

7  assessed,  no  such  assessment  on  the  company  shall  exceed  the  aggregate 

8  amount  of  all  the  betterments  assessed  upon  real  estate,  and  that  in  no 

9  case  shall  such  assessment  exceed  one  quarter  of  the  total  cost  of  such 
10  alteration  or  change  of  grade. 

1  Section  80.     The  provisions  of  chapter  eighty  relative  to  the  assess-  Betterments. 

2  ment  of  betterments  on  real  estate,  so  far  as  applicable,  shall  applj'  to  ^^t  iil]  |  Ik 

3  assessments  made  under  the  two  preceding  sections. 

1906.  463,  III,  §§  69,  15S. 
STATE   HIGHWAYS. 

1  Section  81.     If  the  board  of  aldermen  of  a  city  or  the  selectmen  of  a  Location 

2  town  and  a  company  having  a  location  in  a  way  which  said  board  of  h[X™ys.^ 

3  aldermen  or  said  selectmen  or  the  county  commissioners  of  the  county  r  °l!  lit,  §  as. 

4  where  said  city  or  town  lies  have  in  writing  requested  the  common-  l^^o.^fls"'' 

5  wealth  to  take  charge  of,  make  application  to  the  division  of  highways  J?'?'!'''' 

6  of  the  department  of  public  works,  and  with  the  application  submit  satis-  213  Mass.  loa. 

7  factory  plans,  profiles  and  cross  sections  of  said  way,  said  division  shall 

8  indicate  on  such  plans,  profiles  and  cross  sections  a  location  and  grade 

9  for  the  tracks  of  said  company.    If  said  division  considers  said  way  suit- 

10  able  for  a  state  highway,  and  the  division  and  the  company  by  vote  of 

11  its  directors  agree  as  to  the  proportionate  part  of  the  cost  of  construc- 

12  tion  which  shall  be  paid  by  the  commonwealth  and  by  the  company,  the 

13  division  may  pay,  out  of  the  appropriations  for  the  construction  and 

14  repair  of  state  highways,  said  proportionate  part  of  the  damages  sus- 

15  tained  by  a  person  whose  property  may  be  injured  by  the  construction 

16  of  such  state  highway,  and  of  the  cost  of  grading  it  to  the  lines  established 

17  by  such  division.    A  way  graded  under  this  section  shall  remain  a  town 

18  way  or  a  highway,  subject  to  all  laws  relative  thereto,  until  said  way  is 

19  taken  charge  of  as  a  state  highway  by  the  commonwealth. 


1778 


STREET  RAILWAYS. 


[ClL\P.    161. 


by'thTdivn"sion       Section  82.     If  E  public  Way  in  which  a  street  railway  location  has 
1898*578^1 24  ^ccn  granted  shall  be  thereafter  laid  out,  taken  charge  of  or  constructed 
1906' 463'    ^^  ^y  ^^  under  the  authority  of  said  division,  it  shall  thereafter,  relative  to 
III.  §§  7i',  158.  the  location  and  maintenance  of  a  street  railway  upon  such  state  high- 
way, have  the  authority  conferred  by  sections  seven,  seventy,  seventy- 
one,  seventy-seven  and  eighty-nine  upon  boards  of  aldermen  and  select- 
men, and  shall  exercise  such  authority  in  the  same  manner,  and  subject 
to  the  same  rights  and  limitations. 


OPERATION. 


Opening  for 
use  conditional 


Section  83.  No  street  railway  or  portion  or  extension  thereof  shall 
ca'te'oTde''art-  ^^  Opened  foF  public  usc  Until  the  department,  after  an  examination, 
i90i''368  certifies  that  all  laws  relative  to  its  construction  have  been  complied  with, 

R.  l'.  112, 5  39.  and  that  it  appears  to  be  in  a  safe  condition  for  operation;  but  this  sec- 
§§  73, 158.    '    tion  shall  not  compel  the  department  to  grant  such  certificate  until  the 

entire  road  included  in  the  location  of  such  railway,  portion  or  extension 

has  been  completed. 


Rules  as  to 
rate  of  speed, 

1864,229.  §16. 
1871.381, 
§S  18,  19. 
1874,  29.  §  13. 
P.  S.  113. 
H  27-29. 
R.  L.  112. 
§§40.42. 
1903.  143. 
190.5.  376. 
1906,  463.  III. 
§§  74,  158. 


Section  84.    The  board  of  aldermen  or  the  selectmen  may,  subject  1 

to   the   approval,    revision   or   alteration   of   the    department,    estab-  2 

lish  such  regulations  as  to  the  rate  of  speed,  the  manner  and  extent  of  3 

use  of  tracks,  and  the  number  and  routes  of  cars  which  run  over  such  4 

tracks,  within  their  city  or  town,  as  public  interest  and  convenience  5 

require;  and  a  street  railway  company  whose  servants  or  agents  wilfully  6 

or  negligently  violate  any  such  regulations  shall  forfeit  not  more  than  7 

five  hundred  dollars.  190  Mass.  527.  222  Mass.  270.  8 


Som  track's""  Section  85.  The  superintendent  of  streets  of  a  city,  or  any  officer 
R  ^L  111  1 4i'  exercising  like  authority  therein,  and  the  selectmen  of  a  town,  shall  estab- 
1906.' 463.' III.    ■■' 

§§  75.  158. 
11  Allen,  287. 


lish  regulations  for  the  clearance  of  snow  from  its  tracks  by  any  street 
railway  company  operating  therein,  and  for  the  removal  of  such  snow 
by  said  company  from  the  public  ways  in  which  such  tracks  are  located; 
provided,  that  no  such  company  shall  be  compelled  to  remove  from  the 
public  ways  in  which  its  tracks  are  located  an  amount  of  snow  greater 
than  it  has  cleared  from  between  its  rails  and  between  its  tracks  and  8 
from  a  space  eighteen  inches  wide  on  either  side  of  its  tracks.  9 

Annually  on  or  before  September  first,  the  local  authorities  above  10 
named  shall  transmit  to  the  president  or  other  officer  of  each  company  11 
operating  its  cars  in  the  public  ways  of  their  city  or  town,  and  to  the  de-  12 
partment,  a  copy  of  the  regulations  as  established  by  said  authorities.  13 
Within  fourteen  days  after  the  receipt  by  any  company  of  such  regula-  14 
tions,  such  company  may,  by  its  president  or  a  majority  of  its  board  of  15 
directors,  petition  the  department  for  such  amendment  thereof  as  said  16 
president  or  said  board  of  directors  deem  reasonable.  The  department  17 
shall,  after  notice  and  a  hearing,  within  sixty  days  of  the  receipt  of  said  18 
petition,  file  with  said  local  authorities  and  with  the  president  of  such  19 
company  its  findings  upon  said  petition,  including  such  amendments  of  20 
said  regulations,  if  any,  as  the  department  deems  reasonable,  and  there-  21 
after  such  regulations  as  amended  shall  be  and  remain  in  force  until  22 
September  first  following  and  until  other  regulations  are  established  as  23 
herein  provided.  24 


ClL\.P.    161.]  STREET  RAILWAYS.  1779 

1  Section  86.     If  a  company  voluntarily  discontinues  the  use  of  any  Voluntary 

2  part  of  its  tracks  for  a  period  of  six  months,  the  public  ways  occupied  anceof'Sseof 

3  thereby  shall,  upon  order  of  the  board  of  aldermen  or  the  selectmen,  1894^^229,  §  19. 

4  forthwith,  at  the  expense  of  the  company,  be  cleared  of  said  tracks,  and  J^'g;  ffl'  1 1|; 

5  be  put  into  as  good  condition  for  public  travel  as  they  were  in  immediately  fgj^-  ijj,  l^se. 

6  before  being  so  occupied.    If  a  company  without  right  or  lawful  excuse  '^J,'!,^  ''^■■^n^' 

7  discontinues  the  use  of  any  track  and  when  requested  by  the  board  of 

8  aldermen  of  the  city  or  by  the  selectmen  of  the  town  where  such  track 

9  is  located  refuses  to  operate  the  same,  the  mayor  of  such  city,  if  duly 

10  authorized  by  vote  of  the  city  council  or  the  selectmen  of  such  town  if 

11  duly  authorized  by  vote  of  the  town,  may  petition  the  supreme  judicial 

12  court  to  compel  said  company  to  resume  the  use  of  such  track  and  to 

13  perform  all  its  corporate  duties  relating  thereto.    Such  petition  shall  set 

14  forth  the  facts  upon  which  the  petitioner  relies  and  the  relief  sought,  but 

15  shall  not  be  defeated  for  informality,  and  may  be  amended  at  any  stage; 

16  and  said  court  shall  have  jurisdiction  in  equity  to  determine  the  cause 

1 7  and  enforce  its  decrees  and  orders  relative  thereto.    Upon  the  filing  of  any 

18  such  petition  said  court  shall  order  due  notice  to  be  served  upon  the  com- 

19  pany  and  shall  advance  the  cause  to  speedy  hearing  and  final  decision. 

20  In  case  the  track,  the  use  of  which  has  been  discontinued,  is  located  in 

21  two  or  more  cities  or  towns,  any  or  all  of  such  cities  or  towns,  acting  by 

22  the  officials  above  named  and  authorized  as  hereinbefore  provided,  may 

23  join  in  such  petition.    This  section  shall  not  be  deemed  a  legislative  con- 

24  struction  of  any  existing  law  or  an  impairment  of  any  existing  right  of  a 

25  company  to  discontinue  the  use  of  tracks. 

1  Section  87.    The  aldermen  or  selectmen  may  order  a  company  to  Temporary 

2  discontinue  temporarily  the  use  of  any  tracks  ^\itlun  the  hmits  of  their  anc™ "f'll^e 

3  city  or  town,  if  they  determine  that  pubUc  safety  or  convenience   so  ?|m^229,  §  20. 

4  requires.  i87i,  ssi,  §  26. 

p.  S.  113,  §  2ti.  R.  L.  112,  §  37.  1906,  463,  III,  §§  77,  158. 

1  Section  88.    A  city  or  a  town  which,  for  any  lawful  purpose,  takes  Taking  up, 

2  up,  alters  or  discontinues  public  ways  in  which  the  tracks  of  a  company  discontinu" 

3  are  located,  shall  not  be  liable  in  damages  therefor  to  said  company.  i864,'229,''m7. 

1871,  381,  §  20.  P.  S.  113,  §31.  R.  L.  112.  §  43.  1906,  463,  III,  §§  78,  158. 

1  Section  89.     A  company  shall  not  be  required  to  keep  any  portion  of  ^IPfJ^j 

2  the  surface  material  of  public  ways  and  bridges  in  repair,  but  it  shall  bridges. 

3  remain  subject  to  all  legal  obligations  imposed  in  original  grants  of  loca-  1866]  286,' 

4  tions,  and  may,  as  incident  to  its  corporate  franchise,  and  without  being  issi!  121!      ' 

5  subject  to  the  payment  of  any  fee  or  to  any  other  condition  precedent,  fssl',  57l,\^u. 

6  open  any  such  way  or  bridge  in  which  any  part  of  its  railway  is  located,  fgjg- 4g|;  j^i"- 

7  in  order  to  make  repairs  or  renewals  of  the  railway,  or  of  any  part  thereof,  l04^^ias^3*■l8 

8  and  the  superintendent  of  streets  or  other  officer  exercising  like  authority,  ^f  m''^^'  420 

9  or  the  board  of  aldermen  or  selectmen  shall  issue  the  necessary  permits  iso  Mass!  492! 

10  therefor  in  a  city  or  town  where  such  are  required.    If,  during  the  original  149  Mali'.  335! 

11  construction  or  subsequent  alteration  or  extension  or  the  making  of  any  203.^'"'^'  ^°*' 

12  such  repairs  or  renewals  of  any  railway  or  a  portion  thereof,  said  surface  sf?.^^"^^'  ^°^' 

13  material  is  disturbed,  the  company  which  owns  or  operates  such  railway  gfo  ^'*^^*'' 

14  shall,  at  its  own  cost,  except  as  provided  in  sections  seventy-one  and  1^  Mass.  65. 

15  eighty-two,  replace  to  the  reasonable  satisfaction  of  the  said  superin-  i89Mas3. 254. 

16  tendent,  or  other  officer,  said  surface  material  with  the  same  form  of  192  Mass!  loe! 


1780 


STREET  RAILWAYS. 


[Chap.  161. 


194  Mass.  80. 

213  Mass.  103. 

228  Mass.  357, 

575. 

231  Mass.  MO. 


construction  as  that  which  was  disturbed,  or,  by  first  obtaining  the  17 
approval  thereof  by  such  officer,  with  a  different  material  and  form  of  18 
construction,  and  shall  restore  said  way  or  bridge  to  as  good  condition  as  19 
existed  at  the  time  of  such  disturbance.  Such  company  shall  be  liable  20 
for  any  loss  or  injury  sustained  by  any  person  in  the  management  and  21 
use  of  its  tracks  and  during  the  construction,  alteration,  extension,  repair  22 
or  renewal  of  its  railway,  or  while  replacing  the  surface  of  any  way  dis-  23 
turbed  as  aforesaid,  and  resulting  from  the  carelessness,  neglect  or  mis-  24 
conduct  of  its  agents  or  servants  who  are  engaged  in  the  prosecution  of  25 
such  work,  if  notice  of  such  loss  or  injury  is  given  to  the  company  and  26 
an  action  therefor  is  commenced  in  the  manner  provided  by  section  27 
eighteen  of  chapter  eighty-four.  Tliis  section  shall  not  affect  the  obli-  28 
gations  of  any  company  in  respect  of  the  construction  or  maintenance  of  29 
any  bridge  or  part  thereof  which  any  private  person  or  corporation  may  30 
be  liable,  in  whole  or  in  part,  to  construct  or  maintain.  31 


Liability  of 
company  for 
defective  ways 
and  bridges. 
1866,280. 
1871,  381. 
P.  S.  113, 
§1  32,  33. 
R.  L.  112,  §45. 
1904,  110. 
1906,  463.  Ill, 
§§  80,  158. 
186  Mass.  274. 
197  Mass.  76. 


Section  90.     If,  upon  the  trial  of  an  ^action  against  the  common-  1 

wealth,  a  city,  town,  railroad  corporation  or  bridge  corporation,  the  2 

plaintiff  recovers  damages  for  an  injury  to  his  person  or  property  caused  3 

by  reason  of  a  defect  in  a  public  way  or  bridge  occupied  by  the  tracks  4 

of  a  company,  and  such  company  is  liable  for  such  damages  under  the  5 

preceding  section,  and  has  had  reasonable  notice  to  defend  the  action,  6 

the  commonwealth,  city,  town,  railroad  corporation  or  bridge  corpora-  7 

tion  may  recover  the  damages,  and  all  the  costs  of  both  plaintiff  and  8 

defendant  in  the  action  from  said  company.  9 


bridges  and"         SECTION  91.     Evcry  company  shall,  in  a  manner  satisfactory  to  the 
isfig^'soo  department,  erect  and  maintain  guards  or  railings  upon  every  bridge, 

11%  ^ii'         ^^  draw  of  a  bridge,  crossed  by  its  tracks,  to  prevent  its  cars  from  running 
p.  s.  lis!  off.    If,  for  sixty  days  after  service  on  it  of  an  order  of  the  department 

R.  L.'ii2,  §  46.  relative  to  such  guards  or  railings,  it  fails  to  comply  therewith,  it  shall, 
II  8i,*i58.    '    for  each  month  of  such  failure  subsequent  to  said  sixty  days,  forfeit  two 
hundred  dollars,  to  the  use  of  the  city  or  town. 


Cars  to  stop 
at  railroad 
crossings. 
1859,  126,  §  2. 
G.  S.  63,  §  142. 
1864,  229,  §  36. 
1871,  381, 
§§  47,  48. 
P.  S.  113, 
§§41,42. 
R.  L.  112,  §  62. 
1906,  463,  III, 
§§  82,  158. 
1911,  290. 


Section  92.  If  a  street  railway  crosses  at  the  same  level  a  steam  1 
railroad  where  locomoti^'e  engines  are  in  daily  use,  e\ery  motorman  of  2 
a  car  upon  the  street  railway  shall,  when  approaching  the  point  of  inter-  3 
section,  stop  his  car  within  one  hundred  feet  of  the  crossing;  but  the  4 
department  may,  for  such  term  and  under  such  restrictions  as  it  may  5 
from  time  to  time  prescribe,  modify  or  suspend  the  requirements  of  this  6 
section  with  respect  to  any  such  crossing  by  a  street  railway  of  a  rail-  7 
road  built  for  private  use  under  section  two  hundred  and  forty-five  of  8 
chapter  one  hundred  and  sixty,  or  of  a  branch,  spur  or  siding  of  a  rail-  9 
road  built  or  used  only  for  the  transportation  of  freight  to  the  premises  10 
of  manufacturing  or  other  industrial  plants.  For  each  violation  of  this  11 
section,  the  motorman  shall  forfeit  ten  dollars,  and  the  company  em-  12 
ploying  him  shall  forfeit  twenty  dollars.  13 


Notice  of 


Section  93.     The  board  of  aldermen  or  the  selectmen  may,  subject 

*°  *^^  approval  of  the  department,  establish  such  regulations,  requiring 

Pl^'m '§^6*'  ^^^  motorman  or  conductor  to  give  notice  or  warning  of  the  approach  of 

R.  L.  112,  §  47.  street  cars,  as  they  deem  will  best  secure  the  unobstructed  use  of  the 

lonR   Ar,-i    TTT  '  ^ 


1864,  229,  §  22, 


§§  83, 158.    '    tracks  and  the  free  passage  of  the  cars 


Chap.  161.]  street  railways.  1781 

1  Section  94.     Whoever  wilfully  obstructs  a  company  in  the  legal  use  Obstruction 

2  of  a  railway  track,  or  delays  the  passing  of  its  cars  thereon,  or  aids  islirsM,  §  22. 

3  or  abets  in  such  obstruction  or  delay,  shall  be  punished  by  a  fine  of  not  Wi.'ni.'^^sf.' 

4  more  than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  ^°l'  ■Jjf  5  ^g 

5  three  months.    Whoever  commits  any  of  said  acts  in  such  manner  as  to  ll^li*??^''^' 

6  endanger  the  life  or  safety  of  persons  conveyed  in  or  upon  said  cars,  or  7  Alien,  5V3. 

7  aids  or  abets  therein,  shall  be  punished  by  a  fine  of  not  more  than  one 

8  thousand  dollars  or  by  imprisonment  in  the  state  prison  for  not  more 

9  than  ten  years. 

1  Section  95.     Whoever  without  right  loiters  or  remains  witliin  a  sta-  Loitering 

2  tion  or  waiting  room  of  a  company,  or  upon  the  platform,  stairs,  grounds  ™o'na,"etc*" 

3  or  other  property  owned  or  controlled  by  a  company,  adjacent  to  such  lloR'leaiii 

4  station  or  waiting  room,  after  being  requested  to  leave  the  same  by  a  5§  se,  iss. 

5  special  or  other  police  officer,  shall  forfeit  not  less  than  two  nor  more 

6  than  twenty  dollars. 

1  Section  96.     If  a  company,  its  agents  or  servants,  wilfully  or  negli-  Obstruction 

2  gently  obstructs  a  public  way  or  bridge,  or  hinders  the  passing  of  vehicles  eompanies. 

3  over  the  same,  or  wilfully  detains  the  cars  of  another  company  having  the  isri]  ssi!  1 30! 

4  lawful  right  to  pass  thereon,  such  company  shall  be  punished  by  a  fine  r.  l.Vi\  §  49. 

5  of  not  more  than  five  hundred  dollars;   and  any  such  agent  or  servant  §§°88,*i58."'' 

6  shall  be  punished  by  a  fine  of  not  more  than  ten  dollars  or  by  imprison- 

7  ment  for  not  more  than  three  months. 

1  Section  97.     If  a  company,  its  agent  or  servant,  allows  a  child  under  saies  by 

2  ten  years  to  enter  upon  or  into  any  of  its  cars  for  the  purpose  of  selling  upin'^cars 

3  newspapers  or  other  articles  therein  or  offering  them  for  sale,  it  shall  ^^^-  22?^ 

4  forfeit  fifty  dollars,  to  be  recovered  by  any  person  by  an  action  brought  woe;  463.' in, " 

5  within  three  months  aft^r  the  offence  has  been  committed. 

1  Section  98.     A  company  shall  equip  its  cars,  when  in  use,  with  such  Fenders, 

2  headlights,  fenders,  wheel  guards,  brakes,  and  other  safety  devices  as  br'ake's^rnd''^' 

3  may  be  required  from  time  to  time  by  the  department.  Ss^'^'"'^ 

1890,364.  R.  L.  112,  §52.  1911,345. 

1891.  360,  1903,  134.  1913,  357. 

1895,  378,  §  1.  1906,  463,  III,  §§  90,  158. 

1  Section  99.    All  street  railway  cars  operated  in  the  commonwealth  Emergency 

2  shall  be  equipped  with  an  emergency  lifting  jack  and  with  such  other  I'gi's.Vg's.''' 

3  emergency  tools  as  may  be  approved  by  the  department.    Any  company, 

4  its  officers  or  employees,  operating  a  street  railway  car  in  the  use  of 

5  which  this  section  is  violated,  shall  be  punished  by  a  fine  of  not  less  than 

6  fifty  nor  more  than  one  hundred  dollars. 

1  Section  100.     The  department   shall   require  every  street  railway  Heating 

2  company  to  heat  its  cars,  when  in  use  for  the  transportation  of  passengers,  i89"T36, 

3  at  such  times,  by  such  means,  and  to  such  extent,  as  the  department  fgoo;  lei,' ni,^" 

4  shall  determine,  and  the  company  shall  forfeit  twenty-five  doOars  for  i|2^Mi^s*'59s 

5  each  trip  run  by  any  of  its  cars  not  so  heated,  except  in  case  of  accident 

6  to  the  heating  process  or  apparatus,  or  otlier  unavoidable  cause.    The 

7  state  police  shall  cause  this  section  to  be  enforced. 


1782 


STREET   RAILWAYS. 


[Ch.\p.  161. 


Enclosed 
platforms. 
1897,  452. 
§§  1.2 
1900,414, 
§§1.3. 
R.  L.  112, 
§§  56,  58. 
1906,  463,  III, 
Jl  92,  158. 


Section  101.    Every  street  car  in  use  for  the  transportation  of  pas-  1 

sengers  in  December,  January,  February  and  March,  which,  while  in  2 

motion,  requires  the  constant  care  or  service  of  an  emplo\-ee  upon  its  3 

platforms  or  upon  one  of  them,  shall  have  said  platforms  enclosed  in  4 

such  manner  as  to  protect  the  motormen,  conductors  or  other  employees  5 

operating  such  car  from  exposure  to  wind  and  weather  in  such  manner  as  6 

the  department  shall  approve.  7 


i897'452  §  1        Section  102.     A  company  failing  to  comply  with  the  preceding  section     1 

u'h'  111'  1 59  ^'^^'^  ^^  punished  by  a  fine  of  not  more  than  one  hundred  dollars  for  each     2 

,  1906, 463',  in,    day  during  which  such  failiue  continues.  3 


1906.  463.  in 
§§  95,  158. 
1909,  514,  §  46. 

1912.  533. 

1913,  833. 
1915,  277. 


?f''e^mpk>y'e'^es.         Section  103.     A  day's  work  for  all  conductors,  guards,  drivers,  motor-  1 

1894'  508'  §  9     ni^n,  brakemen,  despatchers  and  gatemen  employed  by  or  on  behalf  of  a  2 

?„•„?;■  i"?!!'  t,?2-  street  railwav  or  elevated  raihvav  companv  shall  not  exceed  nine  hours,  3 

and  shall  be  so  arranged  by  the  employer  that  it  shall  be  performed  within  4 

eleven  consecutive  hours.     No  officer  or  agent  of  any  such  company  shall  5 

require  from  said  employees  more  than  nine  hours'  work  for  a  day's  labor.  6 

Threat  of  loss  of  employment  or  threat  to  obstruct  or  prevent  the  obtain-  7 

ing  of  employment  by  the  employees,  or  tlireat  to  refrain  from  employing  8 

any  employee  in  the  future  sliall  be  considered  "requiring",  within  the  9 

meaning  of  this  section.     But  this  section  shall  not  prevent  an  employee  10 

of  the  character  mentioned  herein,  if  he  so  desires,  from  working  more  11 

hours  than  those  prescribed  herein  for  extra  compensation.    A  company  12 

violating  any  provision  of  this  section  shall  forfeit  not  less  than  one  hun-  13 

dred  nor  more  than  five  hundred  dollars.  14 


Reasonable 
accommoda- 
tions. 

1864,  229,  §  26. 

1865,  261. 
1871,  381,  §  33. 
P.  S.  113.  §43. 
R.  L.  112,  §  69. 
1906,  463,  III. 
§§  96,  158. 
233  Mass.  347. 


FARES  AND  ACCOMMODATIONS. 

Section  104.    Every  company  shall  furnish  reasonable  accommoda-  1 

tions  for  the  conveyance  of  passengers,  and  for  every  wilful  neglect  to  2 

provide  such  accommodations  shall  forfeit  not  less  than  five  nor  more  3 

than  twenty  dollars;  and  may  establish  the  rates  of  fare  for  all  passengers  4 

and  property  conveyed  or  transported  in  its  cars,  subject  to  the  limita-  5 

tions  of  its  charter  or  other  provisions  of  law.  6 


Additional 
acconunoda- 
tions. 
1891,216. 
R.L.I  12,  §  70. 
1906,  463,  III, 
§§  97,  158. 
1911,462. 
199  Mass.  394. 


Section  105.  If  the  department  deems  additional  accommodations  1 
including  waiting  rooms,  stations,  water  closets  and  other  sanitary  con-  2 
veniences  for  the  traveling  public  are  required  upon  any  street  railway,  3 
it  may,  after  due  notice  to  the  company  and  a  hearing,  make  an  order  4 
for  such  additional  accommodations,  and  may  alter,  renew  or  revoke  the  5 
order.  A  company  which,  for  more  than  one  week  after  receiving  writ-  ,  6 
ten  notice  of  such  order,  fails  to  comply  therewith,  shall  forfeit  to  the  7 
use  of  the  city  or  town  where  such  additional  accommodations  are  to  be  8 
used,  or  if  they  are  to  be  used  in  more  than  one  city  or  town,  to  the  use  9 
equally  of  such  cities  or  towns,  one  hundred  dollars  for  each  day  there-  10 
after  during  which  such  failure  continues.  1 1 


Companies 
shall  not  re- 
quire passen- 
gers riding  on 
platform  to 
do  so  at  their 
own  risk. 


Section  106.  No  company  shall  by  rule  or  otherwise  require  passengers 
M'hom  it  permits  to  ride  upon  the  platform  to  do  so  at  their  own  risk,  and 
no  such  passenger  shall  be  prevented  from  recovering  compensation  in 
damages  for  any  injury  by  reason  of  the  fact  that  he  is  so  riding. 

1910.  453.  183  Mass.  96.  191  Mass.  509.  201  Mass.  114.  202  Mass.  450. 


Chap.  161.]  street  railways.  1783 

1  Section  107.     A  company  may  provide  cars  for  special  service,  and  ffrT'frel"™"^ 

2  may  make  special  rates  therefor;  and  may  make  special  rates  for  working  ^^fhSl''-^  ,„ 

3  men  and  working  women  on  week  days  between  the  hours  of  five  and  R.  l'.  112',  §  71! 

4  seven  in  the  morning  and  fi\'e  and  seven  in  the  evening,  and  for  children  §§  98,  iss.    ' 

5  attending  school. 

6  A  company  shall  not  give  free  tickets  or  passes  to  any  state,  county, 

7  city  or  town  official,  or  to  any  person  in  the  employ  of  the  common- 

8  wealth  or  of  any  county,  city  or  town,  except  policemen,  firemen  and 

9  letter  carriers  in  uniform;    but  it  may  give  them  to  a  director  of  the 

10  company  or  to  any  person  who  is  connected  with  it  in  any  executive 

11  capacity.    A  company  which  violates  any  of  the  provisions  of  this  section 

12  shall  forfeit  not  less  than  one  hundred  nor  more  than  five  hundred  dollars. 

1  Section  108.     The  rates  of  fare  charged  by  street  or  elevated  railway  Special  rates 

2  companies  for  the  transportation  of  pupils  of  the  public  day  schools  or  pupUs.°° 

3  public  evening  schools,  of  vocational  schools  subject  to  chapter  seventy-  r  °l'.  m,  §  72. 

4  four,  or  of  private  schools,  between  a  given  point  from  or  to  which  it  is  gl^gg^'fls"'' 

5  necessary  for  them  to  ride  in  traveling  to  or  from  the  schoolhouses  in  ^^^^  ^^^ 

6  which  they  attend  school  and  their  homes,  whether  such  schoolhouses  i9io'.567.' 

7  are  located  in  the  city  or  town  where  the  pupils  reside  or  in  another  city  i87  Mass!  436.' 

8  or  town,  shall  not  exceed  one  half  the  regular  fare  charged  by  such  street  199  Mall'.  279! 

9  or  elevated  railway  company  for  the  transportation  of  other  passengers  ^^^  ^^"^^^  *^' 

10  between  said  points,  and  tickets  for  the  transportation  of  pupils  as  afore- 

11  said,  good  during  the  days  or  evenings  on  which  said  schools  are  in  ses- 

12  sion,  shall  be  sold  by  said  companies  in  lots  of  ten  each.     A  railway 

13  company  violating  any  provision  of  this  section  shall  forfeit  twenty-five 

14  dollars. 

1  Section  109.     All  laws  relative  to  changes  and  regulation  of  fares  Regulation 

2  upon  railroads  shall  apply  to  changes  and  regulation  of  fares  upon  street  i864,T29,  §  26. 

3  railways.  i87i,  ssi,  §  34.  p.  s.  113,  §  44. 

1898,  578,  §  23.  R.  L.  112,  §  73.  185  Mass.  183. 

1901,  180.  1906,  463,  III,  §§  100,  158.     199  Mass.  279. 

1  Section  110.    A  company  shall  not  withdraw  or  discontinue  the  use  withdrawal  of 

2  of  any  free  checks  or  free  transfers  from  one  car  or  line  of  cars  to  another  am!  free"  ^ 

3  without  the  approval  of  the  department,  but  may  regidate  the  use  thereof  is^flss. 

4  to  conform  to  rates  of  fare  estabhshed  under  authority  of  section  one  J^oe' icil' iiZ*' 

5  hundred  and  four.  §§  loi'  i^s. 

1  Section  111.     All  companies  shall  furnish  the  public  with  full  infor-  PuUic  notice 

2  mation,  by  notice  posted  for  seven  consecutive  days  prior  to  the  date  se^^•ice"^''  ° 

3  when  the  same  are  to  take  effect  in  the  cars  on  the  lines  affected,  of  any  ^^^®'  ^^®' 

4  intended  change  in  the  running  of  cars,  or  the  discontinuance  of  any  linei 

5  or  any  change  in  the  general  public  service  of  said  companies. 

6  The  department  shall  give  notice  to  all  such  companies  of  the  fore- 

7  going  provisions. 

1  Section  112.     The  department  shall  forthwith,  upon  the  filing  of  a  Notice  to  cities 

2  petition  or  schedule  for  any  change  in  the  tariff"  or  rates  of  any  company,  proposKT^  ° 

3  give  written  notice  of  the  proposed  change  to  the  mayor  or  selectmen  of  all  sueerraiiway 

4  cities  and  towns  where  the  street  railway  is  operated,  or  which,  in  the  5|\fj44 

5  opinion  of  the  department,  would  be  affected  by  the  proposed  change.  232  Mass.  309. 


1784 


STKEET  RAILWAYS. 


[Chap.  161. 


Penalty  for 
misuse  of 
transfer 
checks. 
1904,  267. 
1906,  463,  III, 
§5  102,  158. 


Transporta- 
tion of  milk 
and  cream. 
1908,  278. 


Section  113.     Every  company  shall  cause  to  be  printed  on  the  trans-  1 

fer  tickets  issued  by  it  to  passengers  the  conditions  under  which  such  2 

tickets  may  be  used.    Whoever  uses  a  transfer  ticket  in  \'iolation  of  any  3 

such  condition,  or  whoever  uses  or  attempts  to  use  a  transfer  ticket  not  4 

issued  to  him,  or  whoever  for  value  disposes  of  or  attempts  to  dispose  of  5 

to  any  other  person  a  transfer  ticket  issued  to  him,  or  whoever  for  value  6 

delivers  or  attempts  to  deliver  a  transfer  ticket  not  issued  to  him  to  any  7 

person,  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  by  8 

imprisonment  for  not  more  than  one  month.  9 

Section  114.     All  companies  may  transport  milk  and  cream  over  1 

and  upon  their  respective  lines  of  railway  and  from  and  to  any  point  2 

thereon,  subject  only  to  the  supervision  of  and  to  such  regulations  as  3 

may  be  imposed  by  the  department.  4 


Companies 

may  provide 

service  at 

cost. 

1918,  280,  §  1. 


SERVICE   AT   COST. 

Section  115.    Any  company,  except  the  Boston  Elevated  Railway  1 

Company  and  the  Eastern  Massachusetts  Street  Railway  Company,  and  2 

the  successors  of  either  of  the  said  companies,  which  accepts  sections  3 

one  hundred  and  fifteen  to  one  hundred  and  twenty-eight,  inclusive,  as  4 

pro\'ided  in  section  one  hundred  and  twenty-six,  or  has  accepted  cor-  5 

responding  provisions  of  earlier  laA\s,  shall  thereafter  furnish  ser\ice  to  6 

the  public  at  cost,  and  shall  be  subject  to  said  sections,  inclusive,  with  7 

reference  to  the  matters  specified  therein,  but  in  all  other  respects  shall  8 

be  subject  to  the  general  laws  relating  to  street  railway  companies.    The  9 

words  "the  company"  as  used  in  said  sections,  inclusive,  shall  mean  10 

any  street  railway  company  which  has  accepted  said  sections  or  corre-  11 

spending  pro\asions  of  earlier  laws.  12 


incost'o?'"'''^       Section  116.     The  cost  of  the  service  shall  include  operating  expenses,     1 
service.  taxcs,  rentals,  interest  on  all  indebtedness  as  hereinafter  defined,  divi-    2 

1918, 280,  §  2.  dends  on  preferred  stock,  an  interest  return  at  the  rate  of  six  per  cent  3 
per  annum  upon  the  stock  investment  as  determined  by  the  department  4 
under  this  section  and  such  allowances  for  depreciation,  obsolescence,  and  5 
losses  in  respect  to  property  sold,  destroyed  or  abandoned  as  may  be  6 
fLxed  from  time  to  time  in  the  case  of  each  company  by  the  department,  7 
and  all  other  expenditures  and  charges  which,  under  the  classification  of  8 
accounts  of  the  interstate  commerce  commission  and  under  the  laws  of  the  9 
commonwealth,  are  properly  chargeable  against  income  or  surplus.  The  10 
words  "stock  investment"  as  used  in  said  sections  shall  mean  the  capital  11 
in\estment,  as  hereinafter  defined,  less  the  amount  paid  in  for  outstand-  12 
ing  preferred  stock,  bonds  and  other  evidences  of  funded  indebtedness.  13 
The  words  "capital  investment"  as  used  in  said  sections  shall  mean  the  14 
amount  of  cash  or  fair  value  of  the  property  paid  in  for  stock,  bonds  and  15 
other  evidences  of  funded  indebtedness  and  properly  expended  for  cap-  16 
ital  purposes,  such  amount  to  be  determined  by  the  department;  pro-  17 
vided,  that  if  it  has  approved  the  issue  of  any  such  securities,  no  further  18 
determination  in  regard  to  the  capital  investment  represented  by  such  19 
securities  shall  be  necessary.  20 

?9l?l,'2lo,"§'3.  Section  117.  No  company  may  accept  sections  one  hundred  and  1 
fifteen  to  one  hundred  and  twenty-eight,  inclusive,  until  it  has  pro\'ided  2 
a  reserve  fund  of  not  less  than  six,  nor  more  than  twelve  per  cent,  of  the    3 


Chap.  161.]  street  railways.  1785 

4  gross  earnings  of  the  preceding  year,  except  as  otherwise  provided  in  this 

5  section.    Such  reserve  fund  may  be  provided  by  the  issue  of  either  bonds 

6  or  stock  or  preferred  stock  issued  under  the  laws  regulating  such  issues. 

7  The  reserve  fund  shall  at  all  times  be  kept  separate  and  distinct  and  shall 

8  be  used  only  for  the  purpose  of  making  up  a  deficiency  of  income  where 

9  the  income  of  the  company  is  insufficient  to  pay  the  cost  of  service  as 

10  provided  in  the  preceding  section.    Until  so  used,  the  reserve  fund  may 

11  be  invested  in  bonds  of  the  United  States,  or  of  this  commonwealth  or 

12  any  city  or  town  thereof.    The  reserve  fund  shall  be  fully  subscribed  for 

13  upon  acceptance  of  said  sections  by  the  company,  but  shall  be  paid  in, 

14  over  a  period  not  exceeding  two  years,  at  such  times  and  in  such  amounts 

15  as  shall  be  directed  by  the  department.    Any  company  may  furnish  a 

16  larger  reserve  fund  or  increase  it  wth  the  approval  of  the  department. 

17  The  reserve  fund  as  originally  provided  for  or  as  later  increased  shall  be 

18  considered  the  normal  reserve  fund. 

1  Section  118.     Any  company  desiring  to  accept  said  sections  shall,  in'Jeralf'^ '^°'''" 

2  at  the  time  of  its  application  to  the  department  to  determine  the  amount  ;^"e^o„  , , 

3  or  its  stock  investment,  apply  to  it  to  determine  the  status  or  its  then 

4  unfunded  debt.    The  department  shall  thereupon  disallow  any  amount 

5  thereof  which  it  deems  was  improperly  incurred.    Interest  charges  upon 

6  the  debt  so  disallowed  shall  be  borne  by  the  company  and  charged  to 

7  the  amount  which  would  otherwise  be  available  as  a  return  upon  the 

8  stock  investment.     Interest  charges  upon  the  residue  of  the  unfunded 

9  debt  shall  be  included  in  the  cost  of  service.    Interest  charges  upon  the 

10  unfunded  debt  incurred  by  the  company  after  its  acceptance  of  said 

11  sections  shall  be  included  in  the  cost  of  service  unless  the  department 

12  determines  any  portion  of  such  debt  to  be  unreasonable  or  improper.    In- 

13  terest  charges  upon  any  portion  disallowed  shall  thereafter  be  deducted 

14  from  the  return  upon  the  stock  investment. 

1  Section  119.     Whenever  the  income  of  the  company  is  insufficient  Useof 

2  to  meet  the  cost  of  service  as  defined  in  section  one  hundred  and  sixteen,  lois,  28o,  §  's. 

3  the  reserve  fund  shall  be  used,  so  far  as  necessary,  to  make  up  the  de- 

4  ficiency,  but  when  the  income  exceeds  the  cost  of  the  service,  the  excess 

5  shall  be  transferred  to  and  become  a  part  of  the  reserve  fund. 

1  Section  120.     A  company  accepting  said  sections  shall  file  with  its  schedules  of 

2  acceptance  a  schedule  of  nine  different  grades  of  fare  and  of  transfer  Appmvai  and 

3  privileges.    One  such  grade  it  shall  designate  as  the  initial  grade  which  it  ms'^lsoITs. 

4  desires  to  establish  and  which  will,  in  its  opinion,  enable  it  to  earn  income 

5  sufficient  to  meet  the  cost  of  service.     Four  of  the  other  grades  shall 

6  provide  for  progressive  increases  and  four  for  progressive  decreases  in 

7  revenue,  and  each  interval  of  increase  or  decrease  shall  be  calculated  to 

8  increase  or  decrease  the  reserve  fund  by  thirty  per  cent  of  the  normal 

9  reserve  fund.    Within  thirty  days  thereafter,  after  notice  and  a  pubhc 

10  hearing,  the  department  shall  either  approve  the  schedule  so  filed  or 

11  shall  establish  a  schedule  similarly  designed  in  place  thereof;   provided, 

12  that  if,  during  any  period  of  sixty  days,  more  than  one  company  shall 

13  file  its  acceptance  of  said  sections  and  a  schedule  of  proposed  grades  of 

14  fare,  the  department  shall  not  be  required  to  approve  or  establish  the 

15  grades  of  fare  for  any  such  company  until  thirty  days  after  it  has  passed 

16  upon  all  schedules  previously  filed  in  accordance  with  this  section.    When- 

17  ever,  by  reason  of  any  change  in  the  existing  rate  of  fare,  there  are  less 


1786 


STREET  RAILWAYS. 


[Chap.  161. 


than  four  grades  either  above  or  below  the  rate  of  fare  then  in  force,  the  18 
company  shall  forthwith  file  with  the  department  a  schedule  of  additional  19 
grades  of  fare,  so  that  there  will  always  be  both  above  and  below  the  20 
existing  rate  of  fare  not  less  than  four  grades  of  fare,  and  the  department  21 
shall  thereupon,  within  sixty  days  thereafter,  either  approve  the  schedule  22 
so  filed  or  itself  establish  in  lieu  thereof  the  necessary  additional  grades  of  23 
fare.  24 

If  at  any  time  it  shall  appear  to  be  in  the  interest  of  the  public  or  of  25 
the  company  that  the  said  schedule  should  be  changed  either  with  regard  26 
to  the  method  or  basis  upon  which  the  fares  and  transfer  privileges  are  27 
established,  or  because  the  steps  between  the  different  grades  are  too  28 
small  or  too  great,  or  for  any  other  reason,  the  company,  with  the  ap-  29 
proval  of  the  department,  may  change  the  said  schedule.  ,30 

Except  as  above  provided,  the  department  may  modify  such  schedule  31 
only  after  it  has  been  in  effect  for  a  period  of  one  year;  provided,  that  32 
no  modification  of  the  schedule  which  diminishes  the  rate  of  return  on  the  33 
stock  investment  shall  be  continued  in  effect  for  a  period  exceeding  four  34 
months.  35 


Changes  in 
grades  of  fare. 
1918,  2S0.  §  7. 


Section  121.  If,  as  of  the  last  day  of  any  March,  June,  September  1 
or  December,  the  reser\e  fund  shall  exceed  by  thirty  per  cent  or  more  the  2 
normal  reserve  fund,  and  during  the  three  preceding  months  the  income  3 
shall  have  exceeded  the  cost  of  the  service,  the  company  shall,  within  4 
thirty  days  thereafter,  put  into  effect  the  next  lower  grade  of  fare  adopted  5 
as  aforesaid ;  and  if,  as  of  the  last  day  of  any  March,  June,  September  or  6 
December,  the  reserve  fund  shall  be  less  than  seventy  per  cent  of  the  7 
normal  reserve  fund,  and  during  the  three  preceding  months  the  income  8 
has  been  less  than  the  cost  of  service,  the  company  shall,  within  thirty  9 
days  thereafter,  put  into  effect  the  nex-t  higher  grade  of  fare,  and  the  fare  10 
shall  continue  to  be  decreased  or  to  be  increased,  if  the  amount  of  the  11 
reserve  fund  is  above  or  below  said  limits,  as  of  such  quarterly  dates.  12 
The  company,  with  the  consent  of  the  department,  may  put  into  effect  13 
the  next  higher  or  lower  grade  of  fare  at  any  time  when  the  reserve  fund  14 
is  below  or  above  the  normal  amount.  15 


Improvement 

fund. 

1918,  280,  §  8. 


Section  122.     The  company  shall  provide  an  improvement  fund  of  1 

an  amount  required  by  the  department  but  not  exceeding  five  per  cent  2 

of  the  capital  investment.     Such  fund  may  be  raised  by  the  issue  of  3 

bonds  or  stock  or  preferred  stock.     It  shall  be  fully  subscribed  within  4 

sixty  days  after  determination  of  the  capital  investment  of  the  company,  5 

and  shall  be  paid  in  from  time  to  time,  as  required,  by  a  plan  of  gradual  6 

improvement  to  be  approved  by  the  department.  7 


Obligation 
of  company 
to  sell  to  state 
or  munici- 
pality. 
1918,  280,  §  9. 


Section  123.     Any  company  accepting  said  sections  shall  be  bound  1 

thereby  to  sell  its  entire  property  and  franchises  as  a  going  concern  to  2 

the  commonwealth  or  to  any  city  or  town  at  any  time  for  an  amount  3 

in  cash  equal  to  the  stock  investment,  and  the  amount  of  cash  paid  in  4 

for  preferred  stock,  and  the  purchaser  sliall  in  addition  assume  all  out-  5 

standing  bonds,  contracts,  leases  and  other  liabilities  of  tlie  company.  6 

Said  sections  shall  not  affect  the  right  of  the  commonwealth  or  of  any  7 

city  or  town  to  acquire  at  any  time,  by  eminent  domain  under  chapter  8 

seventy-nine,  the  property  and  franchises  of  any  company  accepting  9 

said  sections.  10 


Chap.  161.]  street  railways.  1787 

1  Section  124.     The  governor,  wnth  the  advice  and  consent   of  the  Appointment 

2  council,  shall  appoint  for  terms  of  three  years  each  three  persons  to  be  by  governor. 

3  members  of  the  board  of  directors  of  any  company  which  accepts  said  ^^^^'  ^*'*'    ^°' 

4  sections,  of  whom  at  least  two  shall  be  residents  of  a  city  or  town  served 

5  by  the  company,  and  none  shall  be  an  ownier  of  its  stocks  or  bonds. 

6  They  shall  have  and  exercise  all  the  power  and  privileges  of  the  other 

7  directors  of  the  company,  and  shall  receive  such  fees  as  are  paid  to  the 

8  other  directors.    The  by-la^^•s  of  the  company  shall  be  modified  so  as  to 

9  permit  of  the  appointment  of  such  persons  as  directors,  and  shall  also  pro- 

10  vide  for  monthly  meetings  of  the  board.    If  any  such  board  shall  have 

11  an  executive  committee  or  a  finance  committee,  or  any  other  standing 

12  committee,  at  least  one  of  the  persons  appointed  by  the  governor  shall 

13  be  a  member  of  every  such  committee. 


1  Section  125.     In  order  that  the  department  may  at  all  times  be  in  a  Reports  by 

2  position  to  take  such  action  as  the  public  interest  requires,  the  companies  s'^meT^^fion 

3  shall  furnish  it  each  month  with  such  statements  as  it  requires,  showing  tion  by  de^^°'" 

4  the  condition  of  the  reserve  fund,  the  income  and  expenditures  of  the  fgjg^lgo  5  n 

5  previous  month  and  such  other  information  as  the  department  may  de- 

6  sire.     The  commonwealth  shall  be  divided  by  the  department  into  street 

7  railway  districts,  and  for  each  district  within  which  one  or  more  com- 

8  panics  has  accepted  said  sections  the  department  shall   appoint  one  or 

9  more  resident  supervisors  for  terms  of  three  years,  their  salaries  and 

10  expense  allowance  to  be  fixed  by  the  department  and  paid  by  the  com- 

1 1  pany  as  an  operating  expense,  or,  if  their  duties  extend  to  more  than  one 

12  company,  their  salaries  and  expenses  shall  be  apportioned  among  the 

13  several  companies  in  respect  to  which  they  act,  in  such  manner  as  the 

14  department  may  determine.    Said  supervisors  shall  keep  in  constant  touch 

15  with  the  operation  of  the  companies  and  il^form  the  department  of  all 

16  complaints  and  criticism  of  the  service  rendered. 

17  If  the  department  deems  any  special  investigation  of  any  company 

18  necessary  it  may  order  the  same  at  the  expense  of  the  company. 

19  The  department  may  require  such  changes  in  the  management  and 

20  operation  of  any  company  which  has  accepted  said  sections  as  it  deems 

21  necessary  for  the  efficient  conduct  of  the  business  of  the  company  in  the 

22  public  interest. 

23  Any  foreign  company  furnishing  electric  light  or  power  to  any  street 

24  railway  company  operating  under  said  sections  shall  file  annually  with 

25  the  department  a  schedule  of  all  rates  charged  to  all  its  customers  for 

26  power  where  the  electricity  is  furnished  by  a  central  plant  to  others  than 

27  the  said  railway  company  and  with  such  other  information  in  such  form 

28  as  the  department  requires.    The  department  may  proliibit  the  trans- 

29  mission  of  electricity  for  either  light  or  power  unless  such  information  is 

30  filed  as  requested  and  the  prices  charged  therefor  are  determined  by  it 

31  to  be  fair  and  reasonable. 

1  Section  126.     Any  company  desiring  to  accept  said  sections  shall  ^iH^^^y"^^ 

2  apply  to  the  department  to  determine  the  amount  of  its  capital  invest-  Jq^oP^'ro^'s  12 

3  ment  and  of  its  stock  investment,  and  upon  such  determination  the 

4  company  may  accept  said  sections  by  filing  ^\^th  the  department  its 

5  election  so  to  do,  authorized  by  a  vote  of  not  less  than  a  majority  of  its 

6  capital  stock,  and  evidence  satisfactory  to  the  department  that  it  has  pro- 

7  vided  or  will  provide  the  reserve  and  improvement  funds  mentioned  in 

8  sections  one  hundred  and  seventeen  and  one  hundred  and  twenty-two. 


1788 


STREET   RAILWAYS. 


[Chap.  161. 


The  department  may  permit  any  company  desiring  to  operate  under  9 
said  sections  to  begin  operations  before  the  determination  of  its  capital  10 
investment  and  of  its  stock  investment;  provided,  that  the  company  has  11 
met  all  the  other  requirements  of  said  sections,  but  no  dividends  shall  be  12 
disbursed  to  the  holders  of  any  common  stock  until  after  said  determi-  13 
nation  has  been  made.  14 


?f'SS^  Section  127.     The  department  may  order  any  company  accepting 

1917^ Sp' 373,     ^^^'^  sections  to  dispose  of  any  property  no  longer  of  service  to  the  com- 
igl's  '>8o  §  13  P^^y-    ^^y  ^°^^  thereby  incurred  it  may,  with  the  approval  of  the  depart- 
'  ment,  distribute  over  such  period,  not  exceeding  ten  years,  as  the  depart- 
ment shall  designate,  instead  of  charging  the  entire  amount  of  such  loss 
against  its  earnings  or  surplus  for  the  year  in  which  such  loss  may  accrue. 


Revising 
orders  of 
department. 
1918,  280,  5  14. 


Section  12S.     If  a  majority  of  the  state  directors  of  a  company  believe  1 

that  a  particular  order  or  decision  of  the  department  would  impair  the  2 

ability  of  the  company  to  pay  the  six  per  cent  interest  return  on  the  3 

stock  investment  as  provided  in  section  one  hundred  and  sixteen,  they  4 

shall  so  advise  the  department  in  writing,  and  if,  after  reconsideration,  5 

the  department  insists  upon  the  order  or  decision  the  company  may  apply  6 

by  petition  to  the  supreme  judicial  court  for  a  reversal  or  modification  7 

thereof.    The  court  may  appoint  three  commissioners  to  determine  the  8 

facts  and  questions  at  issue,  and  their  report,  if  confirmed  by  the  court,  9 

shall  be  final.  10 


187  Mass.  445. 


RAILROAD  CROSSINGS. 

of'^^de"              Section  129.     For  the  purpose  of  avoiding  or  abolishing  a  crossing  of  1 

im'4M  §  1     ^  railroad  by  the  tracks  of  a  street  railway  company  at  grade,  the  com-  2 

?906'  463  iii^'  P^^y  '^^y  purchase  or  take  by  eminent  domain  under  chapter  seventy-  3 

'  ■  113, 158.   '    nine  land  necessary  therefor,  not  exceeding  fifty  feet  in  width,  outside  the  4 

limits  of  a  public  way;  but  no  land  shall  be  so  taken  which  cannot  lawfully  5 

be  taken  for  the  laying  out  of  a  railroad,  nor  shall  it  be  so  taken  until  a  6 

plan  on  an  appropriate  scale,  showing  by  metes  and  bounds  the  land,  and  7 

the  names  of  the  owners  thereof,  has,  after  notice  to  such  owners,  and  8 

after  such  public  notice  and  hearing  as  is  required  by  section  seven,  9 

been  approved  in  writing  by  the  board  of  aldermen  of  the  city  or  the  10 

selectmen  of  the  town  where  such  land  is  situated ;  nor  shall  the  land  of  1 1 

a  railroad  corporation  or  of  another  street  railway  company  be  so  taken  12 

without  its  consent,  except  with  the  approval  of  the  department  after  13 

notice  and  a  hearing.  14 


Construction 
of  tracks 
outside 
public  ways. 
1898,  404,  I  3. 
R.  L.  112,  1  67. 
1906,  403.  Ill, 
§§  115,  158. 


Section  130.  A  company,  which  has  acquired  land  for  such  purpose, 
may  construct  its  railway  over  or  under  a  railroad,  in  the  manner  agreed 
upon  by  the  companies,  or,  if  they  do  not  agree,  in  the  manner  prescribed 
by  the  department;  but  no  overhead  structure  shall  be  built  at  a  height 
of  less  than  eighteen  feet  above  the  railroad  track  without  the  written 
consent  of  the  department. 


structures 
within  limits 


Section  131.     The  board  of  aldermen  of  a  city  or  the  selectmen  of  a 
or  sttte'^  *"^''    town,  if  a  public  way,  and  the  division  of  highways  of  the  department  of 
public  works,  if  a  state  highway,  may  authorize  structures  or  alterations 


or  state 
highways. 

R.  l'.  112, 1  (is.  within,  or  partly  within,  the  limits  thereof,  which  are  necessary  for  carry- 
5§  116, 158.  '    ing  a  street  railway  over  or  under  a  railroad,  if  such  wav  is  not  thereby 

187  Mass.  445.  ,  e     r  \i  i  i-      x  i 

made  unsaie  tor  other  public  travel. 


Chap.  161.]  street  railw.\ys.  1789 


CHANGE   OF  NAME. 

1  Section  132.     Upon  the  application  of  any  company,  authorized  by  change  of 

2  a  vote  of  two  tloirds  of  the  shares  present  and  voting  at  a  meeting  called  i89i?360, 

3  therefor,  the  department  may,  after  public  notice  and  a  hearing,  author-  1892,^198. 

4  ize  such  company  to  change  its  name. 

R.  L.  109,  §  9.  ,  1906.  463,  III,  §§  122,  158. 

1  Section  133.     A  certified  copy  of  such  authorization  and  a  certificate  certificate  of 

2  of  the  vote  of  the  company,  signed  and  sworn  to  by  the  president,  treas-  be  filed  with 

3  urer  and  a  majority  of  the  directors,  shall  be  filed  in  the  office  of  the  isoitsM,^?"?'' 

4  state  secretary.    The  department  shall  require  public  notice  to  be  given  f^^[  HI]  fi}"' 

5  of  the  change  so  authorized;  and  upon  receipt  of  proof  thereof  the  state 

6  secretary  shall  grant  a  certificate  of  the  name  which  the  company  shall 

7  bear,  which,  subject  to  the  restrictions  of  section  four,  shall  thereafter 

8  be  its  legal  name. 


123,  158, 


1  Section  134.     A  company  shall  have  the  same  rights,  powers  and  [?^||5jj'i*°'* 

2  privileges,  and  be  subject  to  the  same  duties,  obligations  and  liabilities,  under  new 

3  under  its  new  name  as  before  its  name  was  changed,  and  may  sue  and  be  i89i,  seo,  §  4. 

4  sued  by  its  new  name;  but  any  action  brought  against  it  under  its  former  igoo,'  463.'  in, " 

5  name  shall  not  be  defeated  on  that  account,  and,  on  motion  of  either  ^^  ^'*'  ^^^' 

6  party,  the  new  name  may  be  substituted  therefor. 

sale  by  receivers. 

1  Section  135.     A  receiver  of  the  property  of  a  company  may,  by  order  saie  of  raii- 

2  of  the  court,  sell  and  transfer  the  railway,  and  property  of  such  company,  receivers. 

3  its  locations  and  franchises,  on  such  terms  and  in  such  manner  as  the  §§°i','2^®6,' 

4  coiut  orders.     The  purchasers  from  such  recei\'er,  and  a  company  or-  J^'on' 463 '  Ai ^' 

5  ganizcd  under  the  following  section,  if  such  railway  has  been  transferred  fli'^^jsg^^jjo 

6  to  it,  shall  hold  and  possess  said  railway,  all  its  rights  and  franchises  222  Mass.  35. 

7  and  all  property  acquired  in  connection  therewith,  with  the  same  rights 

8  and  privileges  and  subject  to  the  same  duties  and  liabilities  as  the  original 

9  company;  but  no  action  shall  be  brought  against  such  piuchasers  or  such 

10  new  company,  to  enforce  any  liability  incurred  by  said  original  com- 

11  pany,  except  debts  and  liabilities  owing  from  said  original  company  to 

12  any  city  or  town  where  the  railway  is  operated  and  taxes  and  assess- 

13  ments  for  which  said  original  company  is  liable  under  the  laws  relating 

14  to  street  railways,  which  shall  be  assumed  and  paid  by  said  new  company. 

15  This  section  shall  not  impair  the  powers  of  the  holders  of  an  outstanding 

16  mortgage  to  enforce  their  rights  by  suit  or  otherwise. 

1  Section  136.     The  purchasers  at  .such  sale  shall,  with  their  associates.  Agreement  of 

2  to  the  number  of  at  least  fifteen,  within  sixty  days  after  such  sale,  or-  ncw'"Smpany. 

3  ganize  a  company  for  the  piupose  of  holding,  owning  and  operating  the  p''.s.'ii3,§4. 

4  street  railway  purchased,  by  filing  in  the  office  of  the  state  secretary  a  5§'3^'4.*^" 

5  written  agreement  of  association,  which  shall  state:  H4  i3"i4 

6  (a)  That  the  subscribers  thereto  associate  themselves  with  the  inten-  j?".''' ???,  ?"• 

_       .  »   „  .  .,  §54,  145,  I08. 

7  tion  of  forming  a  street  railway  company.  i**  Mass.  310. 

8  (b)  The  corporate  name  assumed,  which  shall  be  one  not  in  use  by  any  218  Mass!  367. 

9  other  street  railway  company  in  the  commonwealth,  or,  in  the  judgment 

10  of  the  department,  so  similar  thereto  as  to  be  likely  to  be  mistaken  for  it, 

11  and  which  shall  contain  the  words,  "street  railway  company",  at  the 

12  end  thereof. 


1790 


STREET  RAILWAYS. 


[Chap.  161. 


(c)  The  corporate  name  of  the  company  whose  property  and  fran-  13 
chises  have  been  purchased.  14 

(d)  The  termuii  of  the  railway.  15 

(e)  The  length  of  the  railway,  as  nearly  as  may  be.  16 
(J)  The  name  of  each  city  and  town  where  the  railway  is  located.  17 
ig)  The  name  of  the  court  by  which  the  sale  was  ordered,  the  date  of  18 

such  order,  and  date  of  sale.  19 

(A)  The  total  amount  of  the  capital  stock  of  the  company,  which  shall  20 

be  fixed  at  an  amount  approved  by  the  department,  but  which  shall  not  21 

exceed  the  fair  cost,  as  determined  by  the  department,  of  replacing  the  22 

railway  and  property  so  acquired,  less  the  amount  of  any  outstanding  23 

mortgages  to  wliich  said  railway  and  property  may  be  subject  in  the  24 

hands  of  the  new  company.  25 

(i)  The  par  value  of  the  shares,  which  shall  be  one  hundred  dollars.  26 

(j)  The  names  and  residences  of  at  least  five  persons,  who  shall  be  27 

subscribers  to  the  agreement  of  association,  to  act  as  directors  until  28 

others  are  chosen  and  qualified  in  their  stead.  29 

Each  associate  shall  subscribe  to  the  agreement  of  association  his  name,  30 

residence,  post  office  address,  and  the  number  of  shares  of  stock  which  31 

he  agrees  to  take.  ,  32 


Organization, 
1900.  381, 
§§  3,  5. 
R.  L.  112, 
5§  13,  14. 
1906,  463.  Ill, 
§§  146.  1.5S. 
218  Mass.  367. 


Section  137.    The  state  secretary  shall  receive  the  agreement  of  as-  1 

sociation,  and  preserve  it  in  form  convenient  for  reference  and  open  to  2 

public  inspection,  and  shall  issue  a  certificate  of  incorporation  in  the  form  3 

authorized  by  section  nine.    Thereupon,  the  company  shall  organize  in  4 

the  manner  provided  in  this  chapter  for  the  organization  of  a  company.  5 

Such  company  may  begin  busrness  as  soon  as  it  is  organized,  and  shall  6 

have  all  the  rights  and  be  subject  to  all  the  duties  of  a  street  railway  7 

company,  except  as  otherwise  provided  in  this  and  the  preceding  section.  8 

If  said  purchasers  fail  to  organize  a  company  as  hereinbefore  provided,  9 

all  rights  and  powers  to  operate  said  railway  shall  thereupon  cease.  10 


Books  and 
returns. 
1857.  40, 
|§  5,  6;  240, 

G.  S.  63, 
§§  143.  144. 
1864.  229. 
§§40.41. 
1S70.  307, 
l§  1.3,4; 
1871.381. 
51  52,  53.  56. 
1876.  173. 
P.  S.  113.5  58. 
R.  L.  112.  §  93. 
1906.  463,  III. 
§§  151,  158. 
1917,  122,  §  4. 


383. 


BOOKS,  RETURNS  AND  REPORTS. 

Section  138.  The  directors  of  every  street  railway  company  shall  1 
annually  within  the  time  prescribed  by  section  thirty-two  of  chapter  2 
one  hundred  and  fiftj'-nine  transmit  to  the  department  a  return  of  the  3 
company  for  the  year  ending  on  December  thirty-first  preceding  which  4 
shall  be  sworn  to  by  the  treasurer  and  the  chief  accounting  officer  of  the  5 
company.  Such  return  shall  set  forth  copies  of  all  leases  and  contracts  6 
made  during  the  year  with  otlier  street  railway  companies,  and  shall  7 
contain  full  and  complete  information  upon  the  several  items  contained  8 
in  the  form  prescribed  by  the  department.  A  company  owning  a  leased  9 
railway  shall  be  responsible  for  the  completeness  and  correctness  of  its  10 
annual  return  to  the  same  extent  as  if  the  railway  were  in  its  own  pos-  11 
session.  A  company  which  fails  to  make  a  return,  or  to  amend  it  when  12 
notified  so  to  do,  shall  forfeit  twenty-five  dollars  for  each  day  during  13 
which  such  failure  continues.  14 


Section  139.     The  department  shall  prepare  tables  and  abstracts 


Tables  and 
abstracts  of 

isnrssi.  §  55.  of  the  returns  of  the  several  companies,  and  may  include  in  its  annual 
p.  s.  113,  §  60.  report  such  of  them  as  it  deems  expedient. 

R.  L.  112,  §  96.  1906,  483,  III,  §§  153,  158. 


CSAF.    161.]  STRKET  RAILWAYS.  1791 

1  Section  140.    The  lessee  of  a  street  railway  shall  make  to  the  com-  Lessee  of 

2  pany  wliich  owns  it  the  same  annual  return  on  oath  of  the  operations  to'^make  same 

3  and  business  of  the  raOway  as  is  required  of  the  company  which  owns  fJifsor**" 

4  it;  and,  for  failure  so  to  do,  shall  be  liable  in  tort  to  said  company  for  all  J^Sj;  |gj'  |  li' 

5  the  penalties  prescribed  by  law  for  failure  by  it  to  make  its  annual  return.  ?•  s-  ns,  §  6^^ 

I90G,  463,  III,  §§  154,  158. 

1  Section  141.     Every  state  department  and  commission  shall  keep  a  Records  of 

2  record  of  its  proceedings  in  any  matter  considered  by  it  under  any  laws  Eeforrdepan- 

3  affecting  street  railways  in  which  it  shall  enter  every  request,  made  by  i89"s'''57g°  §  25 

4  any  party  before  it,  for  a  ruling  of  law  and  of  its  action  upon  such  re-  ^qL.  112,  § gs. 

5  quest,  and  the  neglect  either  to  grant  or  refuse  such  request  shall,  subject  lii.  §§  iss, 

6  to  section  five  of  chapter  twenty-five,  be  taken  in  any  judicial  review 

7  of  such  proceedings  as  a  refusal. 

ADDITIONAL   REMEDY. 

1  Section  142.    The  supreme  judicial  or  superior  court  shall  have  Enforcement 

2  jurisdiction  in  equity,  on  petition  of  a  company,  or  of  the  board  of  alder-  18617199,  §  1. 

3  men  of  a  city  or  the  selectmen  of  a  town  where  the  street  railway  is  ilee',  294,' §  i*^' 

4  located,  or  of  any  interested  party,  to  compel  the  obser\-ance  and  to  Ra'm.'fes" 

5  restrain  the  violation  of  all  laws  wliich  govern  street  railway  companies,  J|^i.  293.    ^ 

6  and  of  all  orders,  rules  and  regulations  made  in  accordance  with  this  R  l  112, 

7  chapter  by  the  board  of  aldermen,  selectmen  or  the  department,  and  to  i906,'463.  iii, 

8  review,  annul,  modify  or  amend  the  rulings  of  any  state  department  or  1911,487*  ' 

9  commission  relative  to  street  railways  as  law  and  justice  may  require.      J?5  Maasl  sis! 

179  Mass.  449.  205  Mass.  94.  229  Mass.  399. 

184  Mass.  294,  310.  209  Mass.  213.  231  Mass.  540. 

192  Mass.  90,  106. 

TRANSPORTATION  AREAS. 

1  Section  143.    A  city  or  town  may  establish,  or  two  or  more  cities  or  Establishment 

2  two  or  more  towns,  or  two  or  more  cities  and  towns,  may  unite  for  the  tk>ntrla°^'^' 

3  purpose  of  establishing,  transportiition  areas  for  the  operation  of  freight  '^-°'  ^^'  §  ^■ 

4  or  passenger  ser\'ice,  or  both,  on  street  railways  existing  therein.    Upon 

5  the  approval  of  such  an  agreement  by  the  department  and  by  the  voters, 

6  as  provided  in  section  one  hundred  and  forty-five,  such  a  transportation 

7  area  shall  be  a  body  corporate  or  politic,  and  may  become  vested  with 

8  all  the  rights  and  powers  and  shall  be  subject  to  all  the  duties  and  obliga- 

9  tions  hereinafter  conferred  or  imposed.    All  the  laws  and  penalties  re- 

10  lating  to  privately  operated  street  railways  within  the  commonwealth, 

11  and  such  rules  and  regulations  as  may  from  time  to  time  be  prescribed 

12  by  the  department  shall  apply  to  such  an  area.    The  area  shall  be  given 

13  a  distinctive  name  by  the  trustees,  hereinafter  provided  for,  which  shall 

14  include  the  words  "Transportation  Area". 

1  Section  144.    A  city,  by  vote  of  its  city  coimcil,  subject  to  the  Preliminary 

2  pro\'isions  of  its  charter,  or  a  town  by  vote  of  its  board  of  selectmen,  may  i92o^'599'  §  2. 

3  make  prehminary  agreements  with  one  or  more  companies  operating 

4  \\ithin  its  territory  for  the  lease  or  purchase  and  operation  of  the  prop- 

5  erties  of  said  company.    For  the  purposes  of  this  section,  a  company 

6  shall  act  by  a  majority  of  its  board  of  directors. 

1  Section  145.     Upon  the  acceptance  of  such  a  preliminary  agreement  Acceptance  by 

2  by  a  majority  in  interest  of  all  classes  of  stock  in  such  a  company  entitled  1920, 599, 5  a. 


1792  -  STREET  RAILWAYS.  [ChaP.    161. 

to  vote,  and  approval  by  tlie  department  after  a  public  hearing  of  which  3 
due  notice  shall  be  given,  the  agreement  shall  thereupon  be  binding  4 
upon  the  company,  subject  to  acceptance  by  the  voters  as  hereinafter  5 
pro\-ided.  The  department  shall  make  an  appraisal  of  the  property  to  6 
\\'hich  the  agreement  relates,  and  shall  determine  the  value  thereof  and  7 
the  price  or  rental  to  be  paid  therefor  by  the  transportation  area.  The  8 
appraisal  shall  be  on  the  basis  of  the  actual  value  at  the  time  of  appraisal  9 
and  not  of  the  cost  of  replacement.  Thereupon  the  said  agreement  and  10 
appraisal  shall  be  advertised  in  a  newspaper  published  in  every  city  11 
and  town  witliin  said  area,  or  in  the  county  as  the  department  may  12 
determine,  and  shall,  within  sixty  days,  be  submitted  to  the  voters  in  13 
e\"ery  such  city  at  a  regular  or  special  mimicipal  election,  and  in  every  14 
such  to\^Ti  at  a  town  meeting  called  for  the  piu-pose,  in  the  form  of  the  15 
following  question  to  be  placed  upon  the  official  ballot:  "Shall  the  16 
agreement  with  the  company,  pro\"iding  for  tlie  operation  17 

of  its  property  by  a  transportation  area  imder  sections  one  hundred  18 
and  forty-tliree  to  one  hundred  and  fifty-eight,  inclusive,  of  the  General  19 
Laws  to  which  tlie  city  of  (or  town  of  )  shall  be  20 

a  party,  be  accepted?"  If  appro%'ed  by  a  majority  of  the  voters  voting  21 
tliereon  by  ballot  in  every  such  city  and  to^\Ti,  except  such  as  may  have  22 
been  excluded  by  the  department,  acting  imder  section  one  hundred  and  23 
fifty-foiu-,  the  said  agreement  shall  thereupon  be  binding,  but  not  other-  24 
wise,  and  the  mayor  and  city  council  and  the  selectmen  shall  have  author-  25 
ity  to  execute  such  firrther  agreements,  contracts  or  leases  as  may  be  neces-  26 
sary  to  effect  the  piu-poses  and  terms  of  the  preliminary  agreement.  27 

pS^t^nt^  Section  146.  The  management  and  control  of  a  transportation  area  1 
iSlaTgf.i"!:  s^^^^  be  vested  in  a  board  of  trustees  of  whom  two  shall  be  chosen  by  the  2 
mayor  of  each  city  concerned,  ^"ith  tlie  approval  of  tlie  city  council,  and  3 
two  by  the  selectmen  of  each  town  concerned.  The  initial  appointees  4 
shall  ser\e  for  terms  of  one  and  two  years,  respectively,  and  their  sue-  5 
cessors  for  terms  of  two  years.  If  a  transportation  area  is  established  6 
by  a  single  city,  or  town,  its  board  of  trustees  shall  consist  of  five  members,  7 
of  whom  tJie  initial  appointees  shall  serve  for  one,  two,  tliree,  four  and  8 
five  years,  respectively,  and  tlieir  several  successors  for  five  years  each.  9 
Each  trustee  shall  be  sworn  to  the  faithful  performance  of  his  duty,  and  10 
a  certificate  thereof  shall  be  recorded  in  the  records  of  the  secretary  of  11 
the  area,  and  shall  serve  until  his  successor  is  qualified.  A  trustee  may  12 
be  removed  for  cause  by  the  appointing  authority,  and  any  vacancy  shall  13 
be  filled  in  the  same  manner  as  an  original  appointment.  The  trustees  14 
shall  not  be  deemed  public  ofiicers  within  the  meaning  of  section  forty  15 
of  chapter  two  hmidred  and  seventy-one,  nor  shall  they  incur  any  personal  16 
liabUity  as  such.  Together  with  their  agents  and  employees,  they  shall  17 
be  deemed  agents  of  tlie  transportation  area.  The  trustees  shall  receive  IS 
no  stated  salaries,  but  may  be  paid  not  more  than  ten  dollars  each  for  19 
every  meeting  attended,  but  no  trustee  shall  receive  in  the  aggregate  more  20 
tlian  three  himdred  dollars  annually.  No  stockholder  in  a  street  railway  21 
company  tlie  property  of  which  is  leased  to  a  transportation  area  shall  22 
act  as  a  trustee  for  such  area.  23 

i92o?599,  §6.  Sectiox  147.  The  board  of  trustees  of  a  transportation  area  shall  1 
have  full  power  to  operate  the  street  railway  property  leased  or  acquired  2 
thereby,  or  to  lease  or  sublease  the  same,  subject  to  such  conditions  as    3 


Chap.  161.]  street  railways.  1793 

4  may  be  approved  by  the  department,  and  may  appoint  and  remove  and 

5  fix  the  compensation  of  such  officers,  managers  and  assistants  as  may  be 

6  necessary. 

1  Section  148.     At  the  first  meeting  of  the  said  trustees,  and  at  each  officers  of  the 

2  annual  meeting  thereafter,  they  shall  elect  from  their  number  a  chair-  1920, slg^s  7. 

3  man,  vice  chairmai),  treasurer  and  a  secretary  who  shall  perform  such 

4  duties  as  the  trustees  shall  prescribe.    The  treasurer  shall  give  a  surety 

5  company  bond  in  such  amount  as  the  trustees  shall  fix,  and  the  premium 

6  thereon  shall  be  paid  as  an  expense  of  the  area.    Each  trustee  shall  be 

7  entitled  to  one  vote  on  all  matters  calling  for  the  determination  of  the 
•    8  board.    The  trustees  shall  hold  such  meetings  and  transact  such  business 

9  as  may  be  necessary  for  the  efficient  operation  of  the  transportation  area. 

10  A  majority  of  the  board  shall  constitute  a  quorum  for  the  transaction  of 

11  business  and  the  action  of  a  majority  of  those  present  at  any  meeting 

12  shall  be  deemed  the  action  of  the  trustees.    The  trustees  shall  annually, 
1.3  before  February  first,  report,  with  a  detailed  statement  of  the  finances 

14  of  the  area,  to  the  several  cities  and  towns  of  the  area,  and  the  treasurer 

15  shall,  once  in  every  three  months,  make  a  financial  report  to  said  cities 

16  and  towns  in  such  form  as  the  trustees  prescribe. 

1  Section  149.     Upon  the  request  of  the  board  of  trustees  of  a  trans-  Taking  of 

2  portation  area  established  under  this  chapter  the  department  shall  take  illo'sgg,""^" 

3  by  eminent  domain  under  chapter  seventy-nine  on  behalf  of  such  trans-  ^^  ®'  ^^' 

4  portation  area  the  whole  property,  or  any  part  thereof,  of  a  street  rail- 

5  way  which  the  company  has  ceased,  for  more  than  ninety  days,  to 

6  operate,   provided  that  the  department  has  determined  that  public 

7  necessity  and  con'venience  require  the  operation  of  such  street  railway, 

8  or  part  thereof  and  approves  the  taking,  and  provided  also  that  the 

9  proposed  taking  has  been  approved  by  a  majority  of  the  voters,  voting 

10  thereon,  substantially  in  the  manner  provided  by  section  one  hundred 

11  and  forty-five,  in  every  city  and  town  included  within  the  transportation 

12  area. 

1  Section  150.    The  cities  and  to'RTis  comprising  a  transportation  area  Contribution 

2  shall  contribute  to  the  discharge  of  its  habiUties  and  obligations  on  the  towns!^""" 

3  basis  of  one  third  part  according  to  the  single  track  street  railway  mileage  ^^'°'  ^^®'  ^  ^' 

4  rumiing  in  or  through  their  respective  limits,  one  third  part  according  to 

5  their  population,  and  one  third  part  according  to  their  assessed  valuation. 

6  The  department  shall  establish  the  said  basis  at  least  once  in  tliree  years. 

1  Section  151.     The  financial  year  of  a  transportation  area  shall  end  on  Finances. 

2  the  last  day  of  each  calendar  year.    The  cities  and  to\\Tis  comprising  the  ^®^°'  ^^^'  ^ '"" 

3  area  shall,  in  proportion  to  their  respective  interests,  as  defined  in  the 

4  preceding  section,  contribute  to  make  up  any  financial  deficit  resulting 

5  from  the  operation  of  the  area  for  any  financial  year,  and  the  board  of  as- 

6  sessors  of  any  such  city  or  town,  upon  receipt  from  the  trustees  of  a  certifi- 

7  cate  showing  the  amount  so  found  to  be  due,  shall  include  said  amount 

8  in  the  annual  tax  le\y  of  the  city  or  town  for  the  year  following  the  said 

9  financial  year.    If  there  is  a  surplus  from  such  operation  for  any  financial 

10  year,  eighty-five  per  cent  thereof  shall  be  distributed  by  the  trustees 

11  among  the  cities  and  towns  comprising  the  area  in  proportion  to  their 

12  respective  interests,  and  fifteen  per  cent  thereof  shall  be  held  by  the 


1794 


STREET   RAILWAYS. 


[Chap.  161. 


trustees  to  be  applied  to  reduce  any  deficit  in  any  succeeding  year.    In  1.3 

reckoning  a  profit  or  a  deficit,  the  trustees  shall  first  charge  off  as  depre-  14 

elation  not  less  than  tliree  per  cent  and  not  more  than  five  per  cent  of  the  15 

book  Aalue  of  the  property.  16 


Borrowing  by 
cities  and 
towns. 
1920,599,  §  11. 


Section  152.     For  the  pm-pose  of  acquiring  street  railway  property  1 

under  sections  one  hundred  and  forty-three  to  one  hundred  and  fifty-  2 

eight,  inclusive,  of  operating  the  same,  or  of  contributing  toward  the  3 

sums  expended  by  the  transportation  area  for  capital  purposes,  cities  4 

and  towns  may,  with  the  approval  of  the  department,  borrow  money  in  5 

excess  of  the  statutory  limit,  but  not  exceeding  the  sum  of  two  per  cent  6 

of  their  respective  assessed  valuation.    Boards  of  trustees  of  transporta-  7 

tion  areas  may  for  current  expenses  issue  from  time  to  time  short  term  8 

notes  for  terms  not  exceeding  one  year,  provided  that  the  notes  shall  9 

first  have  the  approval  of  the  department.  10 


Hneritc°°^  Section  153.     No  extension  of  lines  or  trackage  shall  be  made  or     1 

1920, 599,  §  12.  additional  equipment  purchased  by  a  transportation  area  without  the    2 

consent  of  the  department.  3 


Exclusion  of 
city  or  town 
from  trans- 
portation area, 
etc. 
1920,  599,  §  13. 


Section  154.     The  department  may  exclude  from  a  transportation  1 

area  any  city  or  town,  but  such  exclusion  shall  not  prevent  the  operation  2 

of  street  railways  in  or  through  its  territory.    The  department  may  also  3 

exclude  any  city  or  towii  or  part  thereof,  the  inclusion  of  which  would,  4 

in  its  opinion,  handicap  the  eflScient  operation  of  a  transportation  area.  5 

The  department  may  permit  the  operation  of  street  railwaj^s  without  the  6 

commonwealth  by  any  transportation  area  which  borders  on  the  boundary  7 

line  of  another  state.  8 


Rentals,  etc. 
1920,  599,  §  14. 


Section  155.  The  amount  to  be  paid  as  rental  under  a  lease  of  a  1 
street  railway  property  shall  not  exceed  seven  per  cent  of  the  price  fixed  2 
in  any  option  to  purchase  the  property.  Rentals  shall  be  paid  to  the  3 
owners  of  street  railway  property  by  a  transportation  area  at  least  once  4 
in  six  months.  No  lease  shall  be  made  for  a  term  of  more  than  five  or  5 
less  than  two  years,  but  a  lease  may  be  renewed  if  public  necessity  and  6 
convenience,  in  the  opinion  of  the  department,  so  require.  A  renewal  7 
of  a  lease  shall  be  made  in  the  same  manner  as  a  new  lease,  except  that  8 
the  transportation  area  shall  give  \\Titten  notice  to  the  owners  of  the  9 
property  at  least  foiu-  months  in  advance  of  such  renewal.  A  lease  may  10 
be  terminated  by  the  consent  of  a  majority  in  interest  of  all  classes  of  stock  1 1 
in  such  company  entitled  to  vote,  and  of  a  majority  of  the  voters  of  each  12 
city  and  town  comprising  the  transportation  area,  voting  thereon  upon  13 
submission  at  a  regular  or  special  city  election  or  town  meeting  upon  14 
petition  of  ten  per  cent  of  the  registered  voters  of  each  city  or  town  filed  15 
with  the  city  or  town  clerk  within  thirty  days  of  such  election  or  meeting.  16 


Fare  zones 
and  fares. 
1920,  599,  §  15. 


Section  156.     Subject  to  the  approval  of  the  department,  the  trustees  1 

shall  establish  such  fare  zones  and  shall  fix  such  rates  of  fare  to  be  charged  2 

by  a  transportation  area  as  will  reasonably  assure  suflScient  income  to  3 

meet  the  cost  of  the  service,  including  operating  expenses,  taxes,  rental,  4 

interest  and  the  allowance  for  depreciation  required  by  section  one  hun-  5 

dred  and  fifty-one.  6 


Ch.\p.  162.] 


ELECTRIC   RAILROADS. 


1795 


1  Section  157.    The  trustees  shall  maintain  the  street  railway  prop-  Termination 

2  erty  in  good  operating  condition.    At  the  expiration  of  any  lease  which  igsasgg, §i6. 

3  is  not  renewed,  a  transportation  area  shall  retin-n  the  property  to  the 

4  owners  in  as  good  condition  as  it  was  when  first  taken  over,  ordinary 

5  wear  and  tear  to  be  taken  into  consideration.    All  leases  shall  be  subject 
G  to  a  provision  that  any  question  of  damages  shall,  within  ninety  days 

7  from  the  date  of  expiration  of  a  lease,  be  submitted  to  the  department, 

8  and  its  decision  or  award  shall  be  final,  it  being  understood  that  fluctua- 

9  tions  in  the  value  of  the  property  and  equipment  shall  not  be  taken  into 
10  consideration. 

1  Section  158.     Nothing  contained  in  sections  one  hundred  and  forty-  Taxation. 

2  three  to  one  hundred  and  fifty-seven,  inclusive,  shall  affect  the  right  of     "  '    " 

3  the  commonwealth  or  any  subdivision  thereof  to  tax  the  property  owned 

4  or  leased  by  a  transportation  area  in  the  same  manner  and  to  the  same 

5  extent  as  if  the  same  were  under  private  management,  but  cities  and 

6  towns  may  abate  in  whole  or  in  part  the  taxes  thereon. 


1  Section  159.     Sections  one  hundred  and  forty-three  to  one  hundred  ®°f*?°„^',^ 

n  T    np  *    1         '       1       *  in  1  •  vated  Railway 

2  and  nity-eight,  mclusive,  shall  not  apply  to  any  territory  served  by  the  notaCfected 

3  Boston  Elevated  Railway  Company.  1920, 599,  §  is.  143  to  iss, 

inclusive. 


Sections  one  hundred  and  fort-\--three  to  one  hundred  p"''^  ^"^  , 

towns  which 


1  Section  160. 

2  and  fifty-eight,  inclusive,  so  far  as  applicable,  shall  apply  to  any  trans-  acted  under 

3  portation  area  now  estabUshed  under  chapter  fi^'e  hundred  and  ninety- 

4  nine  of  the  acts  of  nineteen  hundred  and  twenty  or  now  in  process  of 

5  estabUshment  thereunder. 


REFERENCES. 

Location  of  street  railways  in  metropolitan  parks,  Chap.  92,  §§  43-47. 

Investments  by  savings  banks  in  street  railway  securities.  Chap.  168,  §  54,  cl.  4. 

Enforcement  of  this  chapter  by  the  department  of  public  utilities,  Chap.  159. 

Operation  of  motor  cars  for  hire.  Chap.  159,  §§  45-49. 

Reserved  spaces  for  street  railwaj's  in  public  ways.  Chap.  S2,  §  34. 

General  provisions  applicable  to  all  corporations.  Chap.  155. 

General  provisions  relative  to  common  carriers,  Chap.  159. 


CHAPTER    162 

ELECTRIC   RAILROADS. 


Sect. 

1.  Definitions. 

2.  Chapter  to  apply  to  Boynton  bicycle 

railway. 

3.  Formation. 

4.  Powers. 

5.  Agreement  of  association. 

6.  Publication  of  agreement  of  association. 

7.  Certificate  of  public  exigency. 

S.  Proceeding  before  board  of  aldermen  of 

cities  or  selectmen  of  towns. 
9.  Fixing  of  the  route. 

10.  Location  on  public  way,  etc. 

11.  Certificate  of  incorporation. 


Sect. 

12.  Powers  cease  unless  construction  begun, 

etc. 

13.  Powers    to   construct   extension    cease 

unless  construction  begun,  etc. 

14.  Common     carriers     of     baggage     and 

freight. 

15.  Certain  provisions  of  street  railway  law 

applicable. 

16.  Certain  sections  of  railroad  law  not  to 

apply. 

17.  Elevated  structure  an  additional  servi- 

tude. 

18.  Walking  on  track. 


1796 


ELECTRIC   EAILRO.U)S. 


[ClLiP.    162. 


Definitions. 
1906,  616,  §  27. 
1919,  350, 
§  117. 


Section  1 .     In  this  chapter,  unless  the  context  otherwise  requires,  the  1 

"  department "  means  the  department  of  pubhc  utihties.     An  "  interested  2 

party",  in  any  proceeding  under  this  chapter  before  the  department,  the  3 

board  of  aldermen  of  any  city  or  the  selectmen  of  any  town,  shall  in-  4 

elude  any  person  whose  land  is  to  be  taken  or  whose  estate  abuts  upon  5 

any  highway  through  which  the  electric  railroad  is  to  pass,  and  any  rail-  6 

road  corporation  or  street  railway  company  having  a  location  in  any  7 

city  or  town  included  within  the  proposed  route  of  the  electric  railroad  S 

company.  9 


Boynton  bicycle  railway. 


a'^T^toBo  n-       Section  2.     This  chapter,  so  far  as  applicable,  except  sections  twelve  1 

ton  bicycle        and  thirteen,  and  laws  relative  to  the  taxation  of  companies  organized  2 

1907, 556,  §  1.    under  this  chapter,  shall  apply  to  the  form  of  railway  known  as  the  3 

1910,687,  §3.  f        '_  ft    ^  ^ 


I906r5*i6!'§  1.  Section  3.  Fifteen  or  more  persons  may  associate  themselves  by  a  1 
written  agreement  of  association  with  the  intention  of  forming  an  electric  2 
railroad  company.  3 


Powers. 
1906,  516,  §  2. 


Section  4.     Such  company  may,  subject  to  this  chapter,  construct,  1 

operate  and  maintain  a  railroad  or  railway,  including  poles,  wires,  or  2 

other  appliances  and  equipment  connected  therewith,  of  the  class  oper-  3 

ated  by  electricity  or  by  any  power  other  than  steam,  which  the  depart-  4 

ment  approves,  and  constructed  wholly  upon  private  land  purchased  or  5 

taken  by  said  company  under  this  chapter;  or  constructed  partly  upon  6 

such  private  land  and  partly  upon  public  ways  and  places,  but  at  least  7 

one  half  of  which  is  constructed  upon  such  private  land.     Such  company  8 

shall  have  all  the  powers  and  privileges,  and  be  subject  to  all  the  duties^  9 

liabilities  and  restrictions,  relative  to  railroad  corporations,  set  forth  in  10 

chapters  one  hundred  and  fifty-nine  and  one  hundred  and  sixty,  except  1 1 

as  is  otherwise  specially  provided  in  this  chapter.  12 


Agreement  of 
association. 
1906,  516,  I  3. 


Section  5.     The  agreement  of  association  shall  state  — 

(a)  That  the  subscribers  thereto  associate  themselves  with  the  inten- 
tion of  forming  an  electric  railroad  company; 

(b)  The  corporate  name  assumed,  which  shall  be  one  not  in  use  by 
any  other  electric  railroad  company  in  the  commonwealth,  or,  in  the 
judgment  of  the  department,  so  similar  thereto  as  to  be  likely  to  be  mis- 
taken for  it,  or  for  any  railroad  corporation  or  street  railway  company  in 
this  commonwealth,  and  which  shall  contain  the  words,  "electric  rail- 
road company",  at  the  end  thereof; 

(c)  The  termini  of  the  railroad; 

(d)  The  length  of  the  railroad,  as  nearly  as  may  be; 

(e)  The  name  of  each  county,  city  and  town  in  which  the  railroad  is  to  12 
be  located;  13 

(/)  The  gauge  of  the  railroad,  which  shall  be  four  feet  eight  and  one  14 
half  inches;  15 

ig)  The  total  amount  of  the  capital  stock  of  the  company,  which  shall  16 
be  not  less  than  ten  thousand  dollars  for  each  mile;  17 

(h)  The  par  value  of  the  shares,  which  shall  be  one  hundred  dollars;      18 

(t)  The  names  and  residences  of  at  least  five  persons,  who  shall  be  sub-  19 
scribers  to  the  agreement  of  association,  to  act  as  directors  until  others  20 
are  chosen  and  qualified  in  their  stead.  21 


1 

2 

3 
4 
5 
6 
7 
8 
9 
10 
11 


Chap.  162.]  electric  railro.vd.s.  1797 

22  .  Each  associate  shall  subscribe  to  the  agreement  of  association  his 

23  name,  residence,  post  office  address,  and  the  number  of  shares  of  stock 

24  which  he  agrees  to  take,  but  no  subscriber  shall  be  bound  to  pay  more 

25  than  ten  per  cent  of  the  amount  of  his  subscription  unless  a  company 

26  is  incorporated. 

1  Section  6.     The  directors,  before  applying  to  the  department  as  here-  Publication  of 

2  inafter  provided,  shall  publish  a  copy  of  the  agreement  of  association  as  tss^iatSn"' 

3  provided  in  section  six  of  chapter  one  hundred  and  sixty-one,  and  the  ^^°®'  ^^^'  ^  *■ 

4  sworn  certificate  of  the  clerk  shall  be  conclusive  evidence  thereof. 

1  Section  7.     After  compliance  with  section  three  and  the  two  pre-  Certificate 

2  ceding  sections,  and  within  thirty  days  after  the  first  publication  of  exiKency. 

3  notice  of  the  agreement  of  association  therein  required,  the  directors  losVasa'.  94^' 

4  therein  named  shall  apply  to  the  department  for  a  certificate  that  public 

5  convenience  and  necessity  require  the  construction  of  a  railroad  as  pro- 

6  posed  in  such  agreement.     With  such  application  said  directors  shall  file 

7  a  map  of  the  railroad  showing  the  cities  and  towns  through  which  it  will 

8  pass,  the  principal  highways,  railways,  railroads,  navigable  streams  and 

9  tide  waters  to  be  crossed,  and  the  extent  to  which  the  route  of  the  rail- 

10  road  will  be  fixed  upon  private  land  or  will  be  located  longitudinally  upon 

11  public  ways  and  places,  together  with  a  general  profile  of  the  railroad 

12  showing  the  grades,  and  an  estimate  showing  in  reasonable  detail  the 

13  cost  of  construction.    The  directors  shall  also  furnish  such  additional 

14  maps  and  information  as  the  department  may  require.     Prior  to  the 

15  decision  of  the  department  the  directors  may  change  or  modify  the  route 

16  in  any  city  or  town  in  whole  or  in  part  either  at  the  suggestion  of  the 

17  department  or  otherwise.     If  the  department  refuses  to  issue  such  cer- 

18  tificate,  no  further  proceedings  shall  be  had,  but  the  application  may  be 

19  renewed  after  one  year  from  the  date  of  such  refusal. 

1  Section  8.     If  the  department  grants  the  certificate  specified  in  the  Proceeding 

2  preceding  section,  the  directors  may,  within  sixty  days  after  the  granting  of aiSermen 

3  thereof,  apply  to  the  board  of  aldermen  of  each  city  and  to  the  selectmen  geiectmen'^of 

4  of  each  town  where  the  railroad  is  to  be  located  to  fix  the  route  of  the  ^gSe'^'sie  §  6 

5  railroad  in  such  city  or  town,  and  with  such  application  the  directors  isO'.  428,  §  i. 

6  shall  file  a  copy  of  the  maps  and  general  profile,  and,  upon  request,  the 

7  other  information  presented  to  the  department.     The  board  of  aldermen 

8  and  the  selectmen  shall  give  fourteen  days'  notice  of  the  time  and  place 

9  for  a  hearing  on  such  application  by  publication  thereof  in  one  or  more 

10  newspapers,  if  any,  published  in  said  city  or  town;  otherwise  in  such 

11  newspaper  or  newspapers  published  in  the  county  where  the  city  or  town 

12  is  situated  as  shall  be  designated  by  the  department;  and  written  notice 

13  of  the  time  and  place  at  which  such  hearing  will  be  held  shall  be  mailed 

14  at  least  seven  days  before  said  hearing  by  the  clerk  of  the  city  or  town, 

15  where  the  application  for  locations  has   been  filed,  to  the  owners  as 

16  determined  by  the  last  preceding  assessment  for  taxation  of  real  estate 

17  along  the  public  ways  or  parts  of  ways  upon  which  it  is  proposed  to  con- 

18  struct  said  line  and  to  the  owners  of  private  land  upon  which  the  route 

19  of  the  railroad  is  to  be  fixed;  and  said  clerk  shall  make  and  deliver  to 

20  the  directors  at  the  hearing  a  certificate  setting  forth  the  fact  that  such 

21  notice  was  published  and  mailed  as  herein  provided,  and  such  certificate 

22  shall  be  conclusive  evidence  thereof. 


1798  ELECTRIC   RAILRO.U)S.  [Ch.4P.    162. 

fhSoute  Section  9.     If  the  route  designated  in  the  application  is  agreed  to  by    1 

1906, 516, 1 7.  tijg  board  of  aldermen  or  the  selectmen,  and  all  requirements  in  respect  2 
1908;  450.'  '  of  the  part  of  said  route  located  longitudinally  upon  public  ways  and  3 
places  are  assented  to  by  the  directors,  and  thereafter  are  approved  in  4 
writing  by  the  department,  the  board  of  aldermen  or  the  selectmen  shall  5 
make  a  certificate  setting  forth  the  route  as  fixed  by  them,  which  shall  be  6 
certified  by  said  board  or  their  clerk  to  the  directors,  and  no  further  pro-  7 
ceedings  shall  be  necessary,  but  the  route  so  agreed  to  shall  be  the  route  S 
of  said  railroad  in  such  city  or  town,  except  as  hereinafter  provided.  If  9 
the  board  of  aldermen  or  the  selectmen  agree  with  the  directors  upon  a  10 
route  different  from  that  designated  in  the  appHcation,  or  fail  within  11 
ninety  days  after  the  date  of  the  fihng  of  the  application  to  agree  with  12 
the  directors  upon  a  route,  or  as  to  requirements  in  respect  of  the  part  of  13 
the  route  located  longitudinally  upon  public  ways  and  places  which  meet  14 
with  the  approval  of  the  department,  the  directors  or  the  board  of  alder-  15 
men  or  selectmen,  within  one  hundred  days  after  the  date  of  the  filing  of  16 
the  application,  may  apply  to  the  department,  which  may,  in  its  discre-  17 
tion,  after  notice  to  the  directors  and  board  of  aldermen  or  selectmen,  IS 
and  after  public  notice  and  a  hearing,  fix  the  route  and  determine  the  19 
grades  and  method  of  constructing  said  railroad  in  such  city  or  town,  and  20 
no  change  shall  thereafter  be  made  by  the  directors  in  the  grades  or  method  21 
of  construction  so  determined  without  the  written  approval  of  the  de-  22 
partment  after  notice  to  the  board  of  aldermen  or  selectmen  and  after  23 
public  notice  and  a  hearing.  The  department  shall  thereupon  make  a  cer-  24 
tificate  setting  forth  the  route  as  fixed  by  it,  which  route  shall  be  certified  25 
by  its  clerk  to  the  directors.  In  fixing  such  route  the  department  shall  26 
not  locate  it  longitudinally  upon  any  public  way  or  place  in  such  city  or  27 
town  without  the  consent  of  tlie  board  of  aldermen  or  the  selectmen.  28 
That  part  of  the  route  consisting  of  a  location  longitudinally  upon  a  29 
public  way  or  place  shall  not  be  deemed  to  be  fixed  until  all  require-  30 
ments  imposed  in  respect  of  it  by  the  board  of  aldermen,  or  the  selectmen,  31 
are  approved  in  writing  by  the  department.  If  the  route  in  any  city  or  32 
town,  as  fixed  either  by  the  board  of  aldermen  or  selectmen,  or  by  the  33 
department,  in  the  manner  hereinbefore  pro\-ided,  is  different  from  the  34 
route  designated  in  the  appUcation  of  the  directors  and  if  said  change  of  35 
route  in  the  opinion  of  the  directors  makes  it  desirable  to  change  the  36 
route  of  said  railroad  in  any  of  the  other  cities  or  towns  through  which  37 
the  route  of  said  railroad  passes,  or  if  the  directors  deem  it  desirable  to  38 
change  the  route  of  the  railroad  so  as  to  pass  through  any  cities  or  towns  39 
not  named  in  the  agreement  of  association  of  said  railroad  company  or  40 
to  change  the  route  so  as  no  longer  to  pass  through  certain  cities  or  41 
towns  where  the  directors  have  applied  to  have  the  route  fixed,  then  the  42 
directors  may  at  any  time  before  the  route  in  all  the  cities  and  towns  is  43 
finally  fixed,  or  within  thirty  days  thereafter,  apply  to  the  department  44 
for  leave  to  apply  again  to  the  board  of  aldermen  or  selectmen  of  any  45 
cities  or  towns  to  fix  a  new  route  otiier  than  that  originally  applied  for  46 
within  such  cities  or  towns  or  to  apply  to  the  board  of  aldermen  or  select-  47 
men  of  any  cities  or  towns  not  named  in  the  agreement  of  association  of  48 
said  railroad  company  to  fix  a  route  of  the  railroad  passing  through  such  49 
cities  or  townis,  or  for  leave  to  abandon  the  route  in  any  cities  or  towns  50 
where  the  directors  h&xe  applied,  as  aforesaid,  to  have  the  route  fixed.  51 
With  such  application  to  the  department  the  directors  shall  file  a  map  52 
and  general  profile  showing  the  change  in  the  route  as  proposed,  which  53 
map  and  general  profile  shall  be  in  the  same  form  as  those  filed  under  54 


Chap.  102.]  electric  railroads.  1799 

55  section  seven,  and  the  directors  shall  also  furnish  such  additional  infor- 

56  mation  as  the  department  may  require.     The  department  shall  give  a 

57  public  hearing  upon  such  application  after  giving  such  notice  to  the  direc- 

58  tors  and  to  the  board  of  aldermen  or  selectmen  of  such  cities  or  towns 

59  as  it  deems  requisite.     If  the  department  authorizes  the  directors  to 
CO  apply  to  any  cities  or  towois  to  fix  a  route  other  than  that  designated  in 

61  the  original  ajjplication,  then  all  proceedings  theretofore  taken  in  regard 

62  to  fixing  the  route  in  such  cities  or  towns  shall  become  null  and  A'oid,  and 

63  the  directors  shall,  within  sixty  days  thereafter,  again  apply  to  the  board 

64  of  aldermen  of  such  cities  and  to  the  selectmen  of  such  towns  to  fix  anew 

65  the  route  of  the  railroad  in  such  cities  or  towns,  and  with  such  application 

66  shall  file  a  copy  of  the  maps  and  general  profile  of  such  proposed  altered 

67  route,  and,  upon  request,  the  other  information  presented  to  the  depart- 

68  ment.     The  proceedings  thereafter  upon  such  application  shall  be  as 

69  pro-v'ided  for  an  original  application.     If  the  department  authorizes  the 

70  directors  to  apply  to  any  cities  or  towns  not  named  in  said  agreement  of 

71  association  to  fix  a  route  of  the  railroad  passing  through  said  cities  or 

72  towns,  then  the  directors  shall,  within  sixty  days  after  the  granting  of 

73  such  authority,  apply  to  the  board  of  aldermen  or  selectmen  to  fix  the 

74  route  of  the  railroad  in  such  cities  or  towns.    Said  application  shall  be 

75  made  in  the  same  manner  and  the  proceedings  thereon  shall  be  the  same 

76  as  in  an  application  to  fix  the  route  of  the  railroad  to  the  board  of  alder- 

77  men  or  selectmen  of  a  city  or  town  originally  named  in  the  agreement  of 

78  association  of  such  railroad  company.     If  the  department  authorizes  the 

79  directors  to  abandon  entirely  the  route  in  any  cities  or  towns  where  the 

80  directors  have  applied,  as  aforesaid,  to  have  the  route  fixed,  then  any 

81  action  taken  in  regard  to  fixing  the  route  in  such  cities  or  towns  shall 

82  become  null  and  void,  and  the  railroad  company  shall  be  under  no  obli- 

83  gation  to  construct  its  railroad  therein.    The  order  of  the  department 

84  authorizing  the  directors  to  apply  for  a  route  of  the  railroad  in  any  city 

85  or  town  not  named  in  the  agreement  of  association  or  the  order  of  the 

86  department  under  which  the  route  in  any  cities  or  towns  is  abandoned, 

87  shall  operate  as  an  amendment  to  the  clauses  in  said  agreement  of  associ- 

88  atioii  which  name  the  cities  or  towns  where  the  railroad  is  to  be  located, 

89  and  the  termini  thereof,  and  a  certified  copy  of  said  order  shall  be  at- 

90  tached  to  the  agreement  of  association. 

1  Section  10.     If  the  board  of  aldermen  or  the  selectmen  deem  public  Location  on 

2  convenience  and  necessity  require  the  railroad  to  be  constructed  in  part  etc^'^"  ™''^' 

3  longitudinally  upon  a  public  way  or  place,  they  may,  in  granting  or  agree-  ■^®°^'  ^^"^  ^  ^• 

4  ing  to  a  location  thereon,  prescribe  how  the  tracks  shall  be  laid,  the  kind 

5  of  wires,  poles,  rails  and  other  appliances  which  shall  be  used,  and  may 

6  impose  such  terms,  conditions  and  obligations  incidental  to  and  not 

7  inconsistent  with  the  objects  of  a  street  railway  company  as  the  public 

8  interests  may  require,  and  the  department  approves. 

1  Section  11.     The  certificate  of  incorporation  issued  by  the  state  sec-  Certificate  of 

2  retary  to  the  company  shall  contain  the  words,  "  electric  railroad  com-  i906,'5'ie*'§'9. 

3  panics",  instead  of  the  words,  "railroad  corporations". 

1  Section  12.     If  an  electric  railroad  company,  incorporated  under  this  Powers  cease 

2  chapter,  does  not  begin  the  construction  of  its  railroad  and  expend  thereon  stmction 

3  at  least  ten  per  cent  of  the  amount  of  its  original  capital  stock  within  two  i9io,°6s7!'§  i. 


1800 


ELECTRIC   RAILRO.VDS. 


[Chap.  162. 


years  after  the  date  of  its  certificate  of  incorporation,  and  does  not  com-  4 

plete  and  open  its  railroad  for  use  within  four  years  after  said  date,  its  5 

corporate  powers  and  existence  shall  cease,  unless  the  department,  after  6 

public  notice  and  a  hearing,  extends  said  time  by  a  certificate,  stating  7 

that  it  deems  due  diligence  has  been  exercised  by  the  corporation,  and  8 

that  public  necessity  and  convenience  require  such  extension.  9 


Powers  to 
construct  ex- 
tension cease 
unless  con- 
struction 
begun,  etc. 
1910,  587,  §  2. 


Section  13.     If  an  electric  railroad  company,  incorporated  under  this  1 

chapter,  does  not  complete  and  open  for  use  an  extension  within  four  years  2 

after  the  date  of  the  authorization  of  the  extension  by  the  department,  3 

the  power  of  the  company  to  construct  and  operate  the  same  shall  cease,  4 

unless  the  department  after  public  notice  and  a  hearing,  extends  said  5 

time  by  a  certificate  stating  that  it  deems  due  diligence  has  been  exercised  6 

by  the  corporation,  and  that  public  necessity  and  convenience  require  the  7 

said  extension  of  time.  8 


Common  car- 
riers of 
baggage  and 
freight. 
1906,  516,  §  10. 


Section  14.  An  electric  railroad  company  shall  act  as  a  common  1 
carrier  of  baggage,  express  matter  and  freight  in  such  cases,  upon  such  2 
parts  of  its  railroad,  and  to  such  extent,  in  any  city  or  town  as,  after  3 
public  notice  and  a  hearing  upon  the  petition  of  the  president  or  a  ma-  4 
jority  of  the  directors  of  the  company  or  any  interested  party,  the  board  5 
of  aldermen  or  the  selectmen,  or  those  exercising  the  powers  of  such  6 
board  or  selectmen,  in  such  city  or  town,  shall  by  order  approve;  pro-  7 
vided,  that  a  company  shall  actually  engage  in  the  business  of  a  common  8 
carrier  under  this  chapter  only  in  such  cases,  upon  such  of  the  parts  of  9 
its  railroad,  and  to  such  extent,  approved  as  aforesaid,  as  the  depart-  10 
ment  shall  certify,  after  public  notice  and  a  hearing  upon  said  petition,  11 
that  public  necessity  and  convenience  require;  and  provided,  that  any  12 
company  acting  under  authority  hereof  shall  be  subject  to  such  regula-  13 
tions  and  restrictions  as  may  from  time  to  time  be  made  by  the  local  14 
authorities  aforesaid,  with  the  approval  of  the  department,  and  shall  15 
also  be  subject  to  all  laws  relating  to  common  carriers  so  far  as  consistent  16 
herewith  and  with  said  regulations  and  restrictions.  17 


Certain  pro\*i- 
sions  of  street 
railway  law 
applicable. 
1906.  516.  §  11. 
205  Mass.  94. 


Section  15.  An  electric  railroad  company  shall  be  subject  to  sections 
twenty-five,  forty,  forty-two,  forty-six,  forty-nine,  fifty,  seventy,  seventy- 
one,  seventy-seven  to  ninety-eight,  inclusive,  one  hundred  to  one  hun- 
dred and  three,  inclusive,  one  hundred  and  twenty-nine  to  one  hundred 
and  thirty-one,  inclusive,  and  one  hundred  and  forty-one  of  chapter  one 
hundred  and  sixty-one  and  section  one  hundred  and  two  of  chapter  two 
himdred  and  sixtv-six. 


Certain  sec- 
tions of  rail- 
road law  not 
to  apply. 

1906,  516,  §  12. 

1907,  42S,  §  3. 


Section  16.     An  electric  railroad  company  shall  not  be  subject  to  the  1 

following  pro\'isions  of  law  relative  to  railroad  corporations  contained  2 

in  chapter  one  hundred  and  sixty:    so  much  of  section  twenty-two  as  3 

refers  to  tracks  laid  longitudinally  within  the  limits  of  a  public  way;  so  4 

much  of  section  forty-one  as  applies  to  grain  elevators;  sections  sixty-  5 

five  to  sixty-seven,  inclusive,  and  sections  one  hundred  and  thirty-eight,  6 

one  hundred  and  fifty-one,  one  hundred  and  fifty-two,  one  hundred  and  7 

sixtj'-eight  to  one  himdred  and  se^•enty-one,  inclusive,  and  two  hundred  8 

and  twenty-seven;  but  the  department  shall  prescribe  rules  and  regula-  9 

tions  relative  to  the  equipment  of  cars,  the  ringing  of  bells,  the  sounding  10 

of  whistles  and  the  giving  of  signals,  for  the  prevention  of  accidents.  11 


Chap.  163.] 


TRACKLESS  TROLLEY  COMPANIES. 


1801 


1S7  Mass.  445. 


1  Section  17.     The  location,  construction,  maintenance  or  operation  of  Elevated  struc- 

....  i*-i  !■  !■  1  I  1  *•  ture  an  addi- 

2  said  lines  of  railroad  in  so  tar  as  the  same  are  located  longitudinally  t'onai  servi- 

3  upon  an  elevated  structure  upon  a  public  way  or  place  shall  be  deemed  i907^448,  §  r 

4  an  additional  servitude,  and  shall   entitle  parties  having  an  e'State  in 

5  such  public  ways  or  places,  or  in  premises  M-hich  abut  thereon,  and  who 

6  are  damaged  by  reason  of  such  location,  construction,  maintenance  and 

7  operation,  to  recover  such  damages  from  the  electric  railroad  company 

8  under  chapter  seventy-nine. 


1  Section  18.     WTioever  without  right  knowingly  stands  or  walks  on  walking  on 

2  an  electric  railroad  track  not  within  the  limits  of  a  highway  shall  forfeit  is53,'4i4,  §  4. 

3  not  less  than  five  nor  more  than  fifty  dollars,    g.  s.  63,  §  102.     is74, 372,  §  i4s. 


p.  S.  112.  §  195. 
R.  L.  Ill,  §  249. 


1906,403,  II,  §§  232 
516,  §  13. 


258; 


1907,  428,  §  4. 
142  Mass.  296. 


REFERENCES. 

General  provisions  applicable  to  all  corporations,  Chap.  155. 
General  provisions  relative  to  common  carriers,  Chap.  159. 


CHAPTER    163 


TRACKLESS  TROLLEY  COMPANIES. 


Sect. 

1.  Definition. 

2.  Use  of  troUeymotors  on  public   ways, 

etc.,  permitted. 

3.  Incorporation    of    troUeymotor    com- 

panies. 

4.  Agreement  of  association. 

5.  General  laws  governing  street  railway 

companies  apply. 


Sect. 

6.  Corporation  must  secure   permit. 

7.  To  become  common  carrier. 

S.  To  be  subject  to  laws  governing  street 

•     railway  companies. 
9.  Time  limit  upon  erection  of  poles,  etc. 

10.  May  purchase  electricity. 

11.  Real  and  personal  property. 


1  Section  1.     In  this  chapter,  unless  the  context  otherwise  requires,  the  Definition. 

2  "department"  means  the  department  of  public  utilities.  l^ni^^' 


1  Section  2.     Any  corporation  organized  as  provided  in  this  chapter.  Use  of  troiiey- 

2  and  any  domestic  street  railway  company  may,  as  hereinafter  provided,  pubilc^wrys, 

3  transport  for  hire  passengers,  freight,  express  parcels  and  mail  over  public  igie.'^lee!'!'!'?" 

4  ways  or  over  private  lands  with  the  consent  of  the  owners  thereof  by 

5  the  system  knowai  as  troUeymotor  or  trackless  trolley,  and  may  build, 

6  equip,  operate  and  maintain  vehicles  for  such  transportation,  and  estab- 

7  lish  and  maintain  power  houses,  poles,  wires,  conduits  or  other  structures 

8  within  the  limits  of  and  over  or  under  such  public  ways  or  private  lands 

9  for  the  generation  and  transmission  of  electricity  for  the  operation  of 

10  such  vehicles,  and  the  authorities  having  jurisdiction  over  such  public 

11  ways  may  grant  permits  for  the  operation  of  the  said  vehicles  over  such 

12  ways,  and  for  the  erection  of  poles,  wires  and  other  necessary  structures 

13  within,  over  or  under  such  public  ways  in  the  manner  and  to  the  extent 

14  provided  by  law  for  the  granting  of  locations  to  street  railway  companies. 


1  Section  3.     Five  or  more  persons  may  associate  themselves  by  ■WTitten  incorporation 

2  agreement  of  association  with  the  intention  of  forming  a  troUeymotor  or  motor  com- 

3  trackless  trolley  company.  i9i6, 266,  §  2.  pames. 


1802 


TRACKLESS  TROLLEY  COMPANIES. 


[Ch.\p.  163. 


Agreement  of 
association. 
1916,  266,  §  3. 


Section  4.    The  agreement  of  association  shall  state  —  1 

(a)  That  the  subscribers  thereto  associate  themselves  with  the  inten-  2 
tion  of  forming  a  trolleymotor  or  trackless  trolley  company;  ,3 

(b)  The  corporate  name  assumed,  which  shall  be  one  not  in  use  by  any  4 
other  trolleymotor  or  trackless  trolley  company,  or  by  any  street  rail-  5 
way  company,  or,  in  the  judgment  of  the  department,  so  similar  thereto  6 
as  to  be  likely  to  be  mistaken  for  it,  and  shall  contain  words  indicating  7 
the  object  of  the  company;  8 

(c)  The  termini  of  the  proposed  route;  9 

(d)  The  length  of  the  proposed  route  as  nearly  as  may  be ;  10 

(e)  The  name  of  each  county,  city  and  town  where  the  proposed  route  1 1 
is  to  be  situated;  12 

(/)  The  total  amount  of  the  capital  stock  of  the  company,  which  shall  13 
not  be  less  than  two  thousand  dollars  for  each  mile,  nor  in  any  event  less  14 
than  twenty  thousand  dollars;     ,  1.5 

(g)  The  par  value  of  the  shares,  which  shall  be  one  hundred  dollars;       16 

(h)  The  names  and  residences  of  at  least  five  persons,  who  shall  be  17 
subscribers  to  the  agreement  of  association,  to  act  as  directors  until  18 
others  are  chosen  and  qualify  in  their  stead.  19 

Each  associate  shall  subscribe  to  the  agreement  of  association  his  20 
name,  residence,  post  office  address,  and  the  number  of  shares  of  stock  21 
which  he  agrees  to  take,  but  no  subscriber  shall  be  bound  to  pay  more  22 
than  ten  per  cent  of  the  amount  of  his  subscription  unless  the  company  23 
is  incorporated.  24 


General  laws 

governing 

Btreet  railway 

companies 

apply. 

1916,  266,  §  4. 


Section  5.     Except  as  otherwise  provided  in  this  chapter,  corporations  1 

organized  hereunder  shall  be  organized  in  accordance  with  the  general  2 

laws  governing  the  organizatior^  of  street  railway  companies  so  far  as  3 

applicable  and  consistent  with  this  chapter.  4 


Corporation 
must  secure 
permit. 
1916,  266,  §  5. 


Section  6.  Every  corporation  undertaking  to  perform  in  public  1 
ways  the  kind  of  public  service  authorized  by  this  chapter  shall  first  2 
procure  a  permit  from  the  authorities  having  jurisdiction  over  such  3 
public  ways  in  the  manner  prescribed  in  and  in  accordance  with  section  4 
seven  of  chapter  one  hundred  and  sixty-one,  and  the  granting  of  such  5 
permit  shall  be  subject  to  the  approval  of  the  department  as  provided  in  6 
said  section  for  the  location  of  street  railways.  No  such  appro\-al  shall  be  7 
given  for  any  line  any  part  of  which,  in  the  opinion  of  the  department,  is  8 
so  nearly  contiguous  or  adjacent  to  the  line  of  a  street  railway  company  9 
that  its  construction  would  result  in  a  competitive  service  injurious  to  10 
the  public  and  to  such  street  railway  company:  pro\ided,  that  the  latter  11 
is  ready  and  willing  and  offers  to  construct  and  does  construct,  within  12 
such  reasonable  time  as  the  department  may  fix,  a  line  of  street  railway  13 
or  a  line  of  trolleymotor  or  trackless  trolley  in  the  public  way  described  14 
in  the  petition,  which  the  department  deems  will  serve  the  public  as  15 
well  as  would  the  proposed  line  described  in  the  petition;  and  no  such  16 
appro\al  shall  be  granted  in  any  e\'ent  if  the  department  deems  that  17 
the  granting  of  the  same  would  be  unduly  injurious  to  any  street  railway  18 
or  trackless  trolley  line  covering  the  same  or  substantially  the  same  19 
territory.  20 


To  become 

common 

carrier. 

1916,  266,  §  6. 


Section  7.     Every  corporation  undertaking  to  perform  the  kind  of     1 
public  service  authorized  by  tliis  chapter  shall  thereupon  become  a    2 


Chap.  163.]  trackless  trolley  companies.  1803 

3  common  carrier,  with  all  the  duties  and  liabilities  of  common  carriers, 

4  and  the  department  shall  ha\'e  the  same  jurisdiction  over  the  operation 

5  and  the  service  rendered  that  it  has  over  street  railway  companies,  except 

6  that  no  corporation  shall  be  required,  without  its  consent,  to  extend 

7  its  trackless  trolley  ser-\-ice  beyond  that  described  in  its  petition  under 

8  the  preceding  section  or  in  its  offer  to  the  department  thereunder,  and  .the 

9  department  may  permit  the  suspension  of  curtailment  in  whole  or  in 

10  part  of  the  trackless  trolley  service  of  any  corporation  operating  under 

11  authority  of  this  chapter  whenever,  by  reason  of  weather  or  traffic  con- 

12  ditions,  or  of  the  condition  of  the  highways,  or  the  season  of  the  year, 

13  such  suspension  or  curtailment  may  be  desirable  for  the  safety  of  the 

14  traveling  public  or  to  avoid  loss  in  operation. 

1  Section  S.     E^'ery  corporation  doing  business  under  this  chapter  shall  J°]^l^^J^^^ 

2  be  subject  to  general  laws  governing  street  railway  companies  in  respect  era'^g  st^et 

3  to  the  futiu^e  issue  of  stocks  and  bonds,  consolidation,  leases,  revocation  panies. 

4  of  permits  and  locations;  and  shall  also  be  subject  to  the  same  regulation 

5  and  superv-ision,  and  shall  file  with  the  department  the  same  reports 

6  and  information  required  of  street  railway  companies,  so  far  as  such 

7  regulation,  supervision  and  requirements  are  applicable  to  corporations 

8  doing  business  under  this  chapter  and  are  consistent  with  its  provisions. 

1  Section  9.    The  right  of  any  corporation  to  erect  poles,  wires  and  up™n  erection 

2  other  appliances  in  accordance  with  any  permit  granted  under  section  "gfe'lee^'s  s 

3  six,  and  to  operate  trackless  trolley  vehicles  upon  the  line  designated  in 

4  such  permit,  shall  cease  as  to  so  much  thereof  as  shall  not  be  in  operation 

5  within  two  years  after  the  date  of  approval  by  the  department,  or  witliin 

6  such  further  time  as  it  may,  after  a  hearing,  grant. 

1  Section  10.     Any  corporation  doing  business  under  this  chapter  may  May  purchase 

2  purchase  electricity  from  any  person,  city  or  town,  engaged  in  its  man-  i9i6, 266,  §  9. 

3  ufacture  or  distribution  or  from  any  street  railway  company,  on  such 

4  terms  and  conditions  as  the  department  appro\'es,  and,  with  like  ap- 

5  proval,  may  make  contracts  with  any  corporation  having  poles,  wires, 

6  conduits  or  other  structures  or  appliances  within  the  limits  of  public 

7  ways  or  on  private  lands  for  the  purchase  or  for  the  use  of  such  poles, 

8  wires,  conduits  or  other  structures. 

1  Section  11.     Any  corporation  doing  business  under  this  chapter  may  Real  and  per- 

2  purchase  and  hold  personal  and  real  estate  necessary  or  convenient  for  i9i6, 266,  §  lol 

3  the  operation  of  its  lines. 

REFERENCE. 
General  provisions  applicable  to  all  corporations,  Chap.  155. 


1804 


MANUFACTURE  AND   SALE   OF   GAS   AND   ELECTRICITY.       [CuAF.    164. 


CHAPTER    164. 

MANUFACTURE  AND   SALE  OF   GAS   AND   ELECTRICITY. 


Sect. 

definitions. 

1.  Definitions. 

2.  Construction. 

COHPOR-iTE    EIGHTS  AND    LIABILITIES. 

3.  Corporations  governed  by  this  chapter. 

4.  Application   of    business    corporation 

law. 

Formation  of  corporations. 

Agreement  of  association. 

By-laws. 

Par  value  of  shares. 

Issue  of  securities  of  hydro-electric 
companies. 

Increase  or  reduction  of  capital  stock. 

Stock  or  scrip  dividends  forbidden, 
etc. 

Penalty  for  stock  dividends. 

Bonds  and  mortgages  of  gas  or  electric 
companies. 

Issue  of  stock  and  bonds  by  gas  and 
electric  companies. 

Disposition  of  bonds. 

Capital  impaired  to  be  made  good. 

Penalties. 

Disposition  of  new  shares  of  gas  or 
electric  companies. 

When  shares  to  be  sold  at  auction. 

Capital  to  be  paid  in  before  com- 
mencing business. 

Transfer  of  franchise  forbidden. 

Change  of  corporate  business. 

Gas  company  authorized  to  sell  elec- 
tricity. 

Time  prescribed  for  equipping  plant. 

Record  of  orders  for  erection  of  plant 
and  of  compliance. 

Purchase  of  franchise,  etc.,  of  electric 


5. 
6. 
7. 
8. 
9. 

10. 
11. 

12. 
13. 

14. 

15. 
16. 
17. 
18. 

19. 
20. 

21. 
22. 
23. 

24. 
25. 

26. 

27. 

28. 
29. 

30. 
31. 
32. 
33. 


company. 

Powers  and  duties  of  company  so  au- 
thorized. 

Change  of  corporate  name. 

Certificate  of  change  of  officers  to  be 
filed. 

Change  of  location. 

Other  companies  may  hold  gas  stock. 

Liability  of  officers. 

Fees. 


MUNICIPAL    LIGHTING    PLANTS. 

34.  City  or  town  may  acquire  plant. 

35.  Vote  of  city. 

36.  Vote  of  town. 

37.  Certification  of  vote  to  department. 

38.  Certification  of  subsequent  votes,  etc. 
39..  Penalty  for  failure  to  certify  vote. 


Sect. 

40.  May  incur  debt  for  plant. 

41.  Enlargement  of  plant. 

42.  Purchase  of  existing  plant. 

43.  Enforcement  of  purchase. 

44.  Performance  of  final  decree. 

45.  Property  in  adjoining  city  or  town. 

46.  Supply  of  adjoining  city  or  town. 

47.  Supply  by  municipal  plants  to  adjoin- 

ing cities  or  towns. 

48.  Owner  to  file  statement  of  plant. 

49.  Property  in  adjoining  city  or  town, 

when  included. 

50.  Vendor's  rights  to  terminate. 

51.  Purchase  of  gas  or  electricity. 

62.  Certain    towns    may    purchase    from 
street  railway  company. 

53.  Delivery  of  electricity  so  purchased. 

54.  Department  to  fix  price  in  ease  of  dis- 

agreement. 

55.  Municipal  light  board. 

56.  Manager  of  municipal  lighting. 

57.  Annual  income  and  expenses. 

58.  Price  for  gas  and  electricity  regulated. 

59.  Prices  to  be  certified  to  department. 

60.  Compulsory  supply. 

61.  Assessment  of  cost  of  services,  etc. 

62.  Ordinances   and   by-laws   relative    to 

plant. 

63.  Records  and  return  to  department. 

64.  Liability  for  injury  or  damage. 

65.  Application  of  chapter  to  plants  spe- 

cially chartered. 

66.  City  or  town  owning  plant,  subject  to 

general  laws,  etc. 

67.  Revocation  of  locations  restricted. 

68.  Sale  of  plant. 

69.  Enforcement  of  certain  provisions. 

DISTRIBUTION  OF  GAS  AND  ELECTRICITY. 

70.  Street  locations  for  gas  mains. 

71.  Construction  of  lines. 

72.  Taking  land  for  transmission  lines. 

73.  Construction  of  transmission  lines  over 

railroads,  etc. 

74.  Damages   for  injuries   to   persons   or 

property. 

75.  Regulations  by  local  authorities. 

STATE    SUPERVISION. 

76.  General  duties  of  department. 

77.  Annual  report  to  general  court. 

78.  Violations  of  law. 

79.  Enforcement  of  orders  of  department. 

80.  Office  of   company  where   works    lo- 

cated.    Department  to  have  access 
to  records. 


Chap.  1(>4.]      manufacture  and  sale  of  gas  and  electricity. 


1805 


Sect. 
81. 

82, 
83. 
84. 
85. 


Form  of  books  and  accounts  pre- 
scribed. 

Form  of  station  records  prescribed. 

Form  of  annual  returns  prescribed. 

Penalty  for  failure  to  make  return. 

Department  may  examine  books,  etc., 
of  companies. 

86.  Entry  of  gas  company  restricted. 

87.  Entry  of  electric   company,   etc.,  re- 

stricted. 

88.  Appeal. 

89.  Right  of  municipal  lighting  plant  re- 

specting such  entry. 

90.  Restrictions  upon  entry  for  supplying 

electricity  in  bulk. 

91.  Enforcement  of  such  restrictions. 

92.  Supply  of  gas  or  electricity  enforced. 

93.  Reduction  in  price,  etc.,  enforced. 

94.  Revision  of  orders  relative  to  price  and 

quality. 

95.  Report  of  accidents. 

96  Consolidation  of  gas  or  electric  com- 
panies. 

97.  Consolidation  of  electric  and  hydro- 
electric companies. 

9S.  Effect  of  consolidation. 

99.  Increase  of  capital  stock  to  effect  con- 
solidation. 

100.  Consolidations  restricted. 

101.  Time  for  filing  applications  for  con- 

solidations. 

102.  Certain  consolidations  prohibited. 


Sect. 

inspection  op  gas  and  meters. 

103.  Powers  and  duties  of  inspectors. 

104.  Fees  for  testing  gas  meters. 

105.  Companies  to  provide  photometer. 

106.  Regulation  of  quality  of  gas. 

107.  Calorific  standard  for  gas. 

108.  Companies  to  provide  calorimeter. 

109.  Inspection  of  gas  by  photometer. 

110.  Penalty     for     supplying     gas     below 

standard. 

111.  Unit  of  measure  for  gas. 

112.  Companies,    etc.,    to    provide    meter 

provers. 

113.  Penalty  for  using  meters  not  tested. 

114.  Testing  gas  meters  in  use. 

115.  Gas  meters  to  register  plainly. 

116.  Entry  on  premises  to  examine  meters, 

etc. 

117.  Customer  to  be  given  meter  reading. 

118.  Electric  meters  to  register  plainly. 

119.  Meter  rental. 

120.  Testing  electric  meters  in  use. 

121.  Inspection  of  electric  meters,  expense 

and  registration  thereof. 

122.  Penalty  for  use  of  incorrect  electric 

meter,  etc. 

123.  Use  of  prepayment  meters  regulated. 

124.  Gas  or  electricity  may   be   shut  off, 

when. 

125.  Refusal  of  supply  restricted. 

126.  Penalty  for  injury  to  gas  meter,  etc. 

127.  Penalty  for  injury  to  electric  meter,  etc. 


DEFINITIONS. 


1 

2 
3 

4 
5 


Section  1.     In  this  chapter,  unless  the  context  otherwise  requires,  Deenitions 


the  following  words  shall  have  the  following  meanings : 

"Department",  the  department  of  public  utilities. 

"Electric  company",  a  corporation  organized  under  the  laws  of  the 
commonwealth  for  the  purpose  of  making  by  means  of  water  power, 

6  steam  power  or  otherwise  and  selling,  or  distributing  and  selling,  elec- 

7  tricity  within  the  commonwealth,  or  authorized  by  special  act  so  to  do, 

8  even  though  subsequently  authorized  to  make  or  sell  gas. 

9  "Gas  company",  a  corporation  organized  mider  the  laws  of  the  com- 

10  monwealth  for  the  purpose  of  making  and  selling,  or  distributing  and  sell- 

1 1  ing,  gas  within  the  commonwealth,  even  though  subsequently  authorized 

12  to  make  or  sell  electricity. 

13  "Supplying  electricity  in  bulk",  engaging  in  the  business  of  making 

14  and  selling  or  distributing  and  selling  electricity  to  electric  companies, 

15  railroads,  street  railways  or  electric  railroads,  or  to  municipalities  for 

16  municipal  use  or  re-sale  to  their  inhabitants,  or  to  persons,  associations 

17  or  corporations  under  limitations  imposed  by  special  law  or  under  section 

18  ninety  or  corresponding  provisions  of  earlier  laws. 


1885,  240,  §  1. 
R.  L.  110,  I  80. 
1908,  529,  §  1. 
1914,  742, 
5§  1.  199. 
1919,  350, 
§  117. 
Op.  A.  G. 
(1920)  29. 


1  Section  2.     In  construing  sections  seventy,  seventy-one,  seventy-four  Construction. 

2  to  eighty-three,  inclusive,  ninety-two  to  ninety-five,  inclusive,  one  hun-  k  a'e^^i  i9^.^' 

3  dred  and  three,  one  hundred  and  five,  one  hundred  and  six,  one  hundred  Jsl?;  HI,  |  e. 

4  and  nine,  one  hundred  and  twelve  to  one  hundred  and  fourteen,  inclu-  R°/'5s^k\|: 

5  sive,  one  hmidred  and  sixteen,  one  hundred  and  seventeen,  one  hundred  i2i.  §§  38, 4i'. 


1806 


HLW^^UFACTUEE    AND    SALE    OF   GAS   AND   ELECTRICITY.      [ChAP.    164. 


1909,  4S3,  §  4. 
1914,  742. 
§§  198,  199. 


and  nineteen,  one  hundred  and  twenty,  one  hundred  and  twenty-one,  6 
one  hundred  and  twenty-three  to  one  hundred  and  twenty-seven,  inchi-  7 
sive,  unless  the  context  otherwise  requires,  the  terms  "corporation",  8 
"gas  company"  and  "electric  company"  shall  include  all  persons,  firms,  9 
associations  and  private  corporations  which  own  or  operate  works  or  a  10 
distributing  plant  for  the  manufacture  and  sale  or  distribution  and  sale  11 
of  gas  for  heating  and  illuminating  purposes,  or  of  electricity,  withui  12 
the  commonwealth;  and  in  construing  sections  one  hundred  and  tliree,  13 
one  hundred  and  five,  one  himdred  and  nine,  one  hundred  and  twelve  14 
to  one  hundred  and  foiu-teen,  inclusive,  one  hundred  and  sixteen,  one  hun-  15 
dred  and  seventeen,  one  hundred  and  twenty,  one  hundred  and  twenty-  16 
one,  and  one  hundred  and  twenty-three  to  one  hundred  and  twenty-seven,  17 
inclusive,  the  terms  "corporation",  "gas  company"  and  "electric  com-  18 
pany"  shall  include  municipal  corporations  which  own  or  may  acquire  19 
municipal  lighting  plants.  20 


Corporations 
goveroed  by 
this  chapter. 
R.  S.  38,  §  1. 
G.S.60,  §  1. 


CORPOR.\.TE  RIGHTS  AND   LIABILITIES. 


Section  3.     This  chapter  shall  apply  to  gas  and  electric  companies  or-  1 

ganized  or  chartered  imder  any  general  or  special  laws  applicable  thereto,  2 

and  to  the  respective  officers  and  stockholders  of  such  corporations.  3 

1870,  224,  5§  13,  64,  65.  P.  S.  106,  |  3.  R.  L.  110,  §  2.  1914,  742,  §§  2,  199. 


Application  of 
business  cor- 
poration law. 
1808,  65.  §  1. 
1829.  S3.  §  1. 
R.  S.  33, 
S§  2-5. 


Section  4.     Sections    four,    eight,    nine,    twenty-one,    twenty-two,  1 

twenty-eight,  thirty-one  and  thirty-four  of  chapter  one  hundred  and  2 

fifty-six  shall  apply  to   companies  subject  to   the  pro\isions   of   this  3 

chapter.  issi,  133,  §1 4,  5.  isss,  ue,  §  1.  4 


G.  s.  60,  §i 
1870,  224, 


3-6;  61,  5§  5,  15. 
§  10.  15-18. 


P.  S.  100,  S 
R.  L.  110, 


i  20,  23-26. 
§  19,  22-24. 


1914,  742,  §§  9,  13-15,  199. 
1919,333,  §§  17,  IS. 


Formation  of 
corporations. 
1851,  133.  §  1. 
1855,  146,  §  1. 
G.S.61,  §11, 
15. 

1870.224.15  1, 
5,  55-58. 
1874,  165. 
1879,  202,  §  1. 
P.  S.  106,  §§6, 
11.  14. 

1885.  240.  §  1. 
1891,  189,  §  1. 


Section  5.    Three  or  more  persons  may  associate  themselves  by  an  1 

agreement  in  wTiting,  with  the  intention  of  forming  a  gas  or  electric  2 

company,  and,  upon  complying  with  section  nine  of  chapter  one  hmidred  3 

and  fifty-eight,  shall  be  and  remain  a  corporation.     Nothing  herein  con-  4 

tained  shall  authorize  the  organization  of  a  combined  gas  and  electric  5 

company,  unless  the  department,  after  notice  and  a  public  hearing,  shall  6 

certify  to  the  commissioner  of  corporations  and  taxation  that  it  deems  7 

the  public  convenience  will  be  promoted  thereby.  8 


1893.  397. 
R.  L.  110.  §§ 
1910,  346. 
1914,742,  |g 


4,  9.  13. 
3,  199. 


11  Gray,  139. 

15  Gray,  211,494. 

12  Allen,  273,  362. 
98  Mass.  98. 


101  Mass.  381.  385. 

1  Op.  A.  G.  47.  185. 

2  Op.  A.  G.  36,  346. 

3  Op.  A.  G.  120. 


Agreement  of 
association. 
1S51.  133, 
§§3,6. 

G.S.61,  §§1.2. 
1866,  290,  §  2. 
1870,  224, 
§§  5,  7,  8. 
1879.  202,  §  1. 
P.  S.  106, 
§§  11.  16.  17. 
1885,  240,  §  1. 
1.S91.  189,  §  1. 
1893,  397. 
R.  L.  110, 
§§  9,  15,  16. 
1902,  441. 
1910,  346. 
1914,  742,  §§  5, 
199. 

11  Grav,  139. 
97  Mass.  494. 
149  Mass.  436. 


Section  6.     The  agreement  of  association  shall  state:  1 

(a)  That  the  subscribers  thereto  associate  themselves  with  the  inten-    2 

tion  of  forming  a  gas  or  an  electric  company,  as  the  case  may  be.  3 

(6)  The  corporate  name  assumed,  which  shall  contain  the  words  "gas    4 

company"  or  "electric  company",  as  the  case  may  be,  at  the  end     5 

thereof.  6 

(c)  The  name  of  the  to-mi  in  which  it  is  to  be  established  or  situated.     7 

(d)  The  amount  of  its  capital  stock,  which  shall  be  not  less  than  one  8 
thousand  dollars;  the  number  of  shares  into  which  the  capital  stock  is  to  9 
be  divided;  and,  if  there  are  to  be  preferred  shares,  the  number  of  such  10 
shares,  wliich  shall  not  exceed  the  number  of  the  common  shares,  and  all 
statement  of  the  preferences  and  voting  powers  or  restrictions  or  qualifi-  12 
cations  upon  which  they  are  to  be  issued.  •  13 


Chap.  164.]     manufactube  aktd  sale  of  gas  and  electricity.  1807 

1  Section  7.     Every  such  corporation  may  by  its  by-laws,  except  as  is  By-iaws. 

2  otherwise  expressly  provided,  determine  the  manner  of  callinjr  and  con-  ism]  53,' |§\, 

3  ducting  its  meetings;   the  number  of  shares  which  shall  entitle  a  stock-  Ifss,  53,  §  1. 

4  holder  to  one  or  more  votes;  what  number  of  stockliolders  shall  attend,  7'.  f4^f2^^  ^• 

5  either  in  person  or  by  proxy,  or  what  number  of  shares  or  amount  of  G-  Ig"?  ./^  2, 

6  interest  shall  be  represented,  at  any  meeting,  to  constitute  a  quorum;  is7o,'224,'§  20. 

7  the  mode  of  voting  by  proxy;  the  mode  of  selling  shares  for  the  payment  i66V§  28. 

8  of  assessments;  and,  except  as  provided  in  section  twenty-two  of  chapter  no^§^26.'^^" 

9  one  hundred  and  fifty-six,  the  tenure  of  office  of  the  several  officers  and  §§^8/1^99. 

10  agents;   and  may  annex  suitable  penalties  to  such  by-laws,  not  exceed-  l^^'""  ^oi. 

11  ing  twenty  dollars  for  one  offence;   but  no  by-law  shall  be  made  by  a 

12  corporation  not  consistent  with  law.    If  not  otherwise  so  determined,  a 

13  majority  in  interest  of  the  stockliolders  shall  constitute  a  quorum.     If 

14  not  otherwise  so  determined,  each  stockholder  shall  be  entitled  to  one 

15  vote  for  each  share  owned  by  him. 

1  Section  8.     The  aggregate  par  value  of  the  outstanding  shares  shall  ^^3^]^^^^® 

2  not  be  increased  by  a  change  in  the  par  value  thereof.  i9i4. 742,  1  29. 

1  Section  9.     An  electric  company  which  owns  or  operates  an  hydro-  issue  of  secun- 

2  electric  plant  may,  subject  to  all  laws  governing  the  issue  of  capital  stock  electrL''^'''^"" 

3  by  electric  companies,  issue  preferred  stock  to  such  amount,  not  exceed-  JgJe''^'^' 

4  ing  twice  the  amount  of  the  general  or  common  stock  then  outstanding, 

5  as  the  department  may  from  time  to  time  approve;  and,  in  approving, 

6  imder  section  fourteen,  the  issue  of  stock  or  bonds  by  an  hydro-electric 

7  company  which  has  theretofore  issued  and  has  outstanding  stock  or  bonds 

8  for  which  the  approval  of  the  department  or  its  predecessors  was  not 

9  required,  the  department  may  direct  that  such  new  stock  or  bonds  shall 
10  bear  some  distinctive  designation. 

1  Section  10.     Every  corporation  subject  to  this  chapter,  unless  other-  increase  or 

2  wise  expressly  provided,  at  a  meeting  called  therefor  may  increase  its  c^^ta'rstock. 

3  capital  stock  from  time  to  time  by  such  amounts  as  may  be  authorized  Jq^®'  ^^-  ^^  ^• 

4  by  the  department  in  accordance  with  section  foiu-teen,  and  may  reduce  Jq^-^*'  ^^  '^' 

5  its  capital  stock,  and  the  number  of  shares  therein,  subject  to  the  pro-  i|5i,  133,  §  s. 

6  visions  of  tliis  chapter  and  of  chapter  one  hundred  and  fifty-eight.  o.s.'eo,  §§  11. 

1870,  224.  §  24.  P.  S.  lOfi,  §§  33-35.  1906,  437.  ^^'  ^^'  ^  "' 

1871,110,5  2.  1899,  199.  §  2.  1908.534. 

1873,  39,  §  2.  R.  L.  110.  §§  31,  32.         1914,  742,  §§  35,  199. 

1  Section  11.    No  gas  or  electric  company  shall  declare  any  stock  or  scrip  stock  or  scrip 

2  dividend  or  divide  the  proceeds  of  the  sale  of  stock  or  scrip  among  its  biciden'!'i\c°'" 

3  stockholders;   nor  shall  any  gas  or  electric  company  except  as  provided  1I75,' ?77,' 1 2! 

4  in  this  chapter  issue  any  share  of  stock  to  any  person  unless  the  par  value  f^if  w|'  ^  ^*' 

5  of  the  shares  so  issued  or  the  price  thereof  as  fixed  and  determined  under  i^'-'i''  ?5o''  §  1. 
D  sections  eighteen  and  nineteen  is  first  paid  in  cash  to  its  treasurer,    ihe  no.  §  44. 

7  conveyance  to  such  company  of  real  or  personal  property  shall  be  deemed  §§  313, 199. 

8  a  sufficient  paying  in  of  its  original  capital  stock  to  such  amount  as  may  "^^^  "  ' 

9  be  approved  by  the  department  under  the  provisions  of  section  fom-teen. 

1  Section  12.     All  certificates  of  stock  or  scrip  issued  in  violation  of  the  Pen.iity  for 

2  preceding  section  shall  be  void ;    and  the  directors  of  the  corporation  fms.  310,  §"2.^" 

3  which  issues  them  shall  be  liable  to  a  penalty  of  one  thousand  dollars  i's9'!,35o,V2^.' 


1808 


M.\NUFACTUKE    AND   SALE    OF   GAS   AND   ELECTKICITY.      [ClIAP.    164. 


R.  L.  109,  I   21 
1914,  742, 
§§  37,  199. 

1918,  257, 
§375. 

1919,  5. 

1920,  2. 

Bonds  and 
mortgages  of 
gas  or  electric 
companies. 
ISSli,  346,  §  3. 
1890,  371. 
1894,  450,  §  1. 
E.  L.  121, 
§§  10-12. 
1914,  742, 
§§  38,  199. 
1S9  Mass.  505. 


each,  to  be  recovered  by  indictment  in  any  county  where  any  of  them  4 

reside;  but  if  any  such  director  proves  that,  before  such  issue,  he  filed  5 

his  wTitten  dissent  thereto  with  the  clerk,  and  at  no  time  voted  therefor,  6 

he  shall  not  be  so  liable.  7 

Section  13.     A  corporation  subject  to  this  chapter  may,  by  vote  of  a  1 

majority  in  interest  of  its  stockholders  at  a  meeting  called  therefor,  and  2 

subject  to  the  limitations  and  restrictions  of  the  following  section,  issue  3 

bonds,  at  not  less  than  par,  to  an  amount  not  exceeding  its  capital  stock  4 

actually  paid  in  at  the  time  of  such  issue  and  applied  to  the  purposes  of  5 

the  corporation,  and  bearing  interest  at  a  rate  not  exceeding  six  per  6 

cent  per  annum;   and  may  secure  the  payment  of  the  principal  and  7 

interest  of  said  bonds  by  a  mortgage  of  its  franchise  and  property.     All  8 

persons  who  acquire  any  mains,  conduits,  poles,  wires,  fixtures  or  other  9 

apparatus  in,  over,  under  or  across  public  ways  by  virtue  of  such  mort-  10 

gage  shall  have  the  same  rights  and  be  subject  to  the  same  obligations  11 

relative  to  their  erection,  care,  maintenance  and  operation  as  the  cor-  12 

poration  would  have  had,  or  would  have  been  subject  to,  if  the  mortgage  13 

had  not  been  made.  14 


Issue  of  stock 
and  bonds  by 
gas  and  elec- 
tric companies. 
1894,  450,  §  1. 
R.  L.  109,  §  24. 
1910,  374. 
1914,742,  §§39, 
199. 

1916,  64. 
179  Mass.  15. 
199  Mass.  356. 
214  Mass.  529. 

1  Op.  A.  G.  659. 

2  Op.  A.  G.  58. 


Disposition 
of  bonds. 
1919,  104,  §  1. 


Section  14.  Gas  and  electric  companies  shall  issue  only  such  amount  1 
of  stock  and  bonds  as  the  department  may  from  time  to  time  vote  is  2 
reasonably  necessary  for  the  purpose  for  which  such  issue  of  stock  or  3 
bonds  has  been  authorized.  The  department  may  take  into  considera-  4 
tion  any  resources  of  the  companies  available  or  which  might  have  been  5 
available  for  said  piupose.  The  department  shall  render  a  decision  6 
upon  an  application  for  such  issue  within  thirty  days  after  the  final  7 
hearing  thereon.  The  decision  shall  be  in  writing,  shall  assign  the  reasons  8 
therefor,  shall,  if  authorizing  such  issue,  specify  the  respective  amounts  9 
of  stock  or  bonds  authorized  to  be  issued  for  the  respective  purposes  to  10 
which  the  proceeds  thereof  are  to  be  applied,  and  shall,  within  seven  11 
days  after  it  has  been  rendered,  be  filed  in  the  office  of  the  department.  12 
A  certificate  of  the  vote  of  the  department  shall,  within  three  days  after  13 
such  decision  has  been  rendered  and  before  the  stock  or  bonds  are  issued,  14 
be  filed  in  the  office  of  the  state  secretary,  and  a  duplicate  thereof  deliv-  15 
ered  to  the  corporation,  which  shall  enter  the  same  upon  its  records.  A  16 
company  subject  to  this  section  shall  not  apply  the  proceeds  of  such  17 
stock  or  bonds  to  any  purpose  not  specified  in  such  certificate.  No  appli-  18 
cation  for  the  approval  of  an  issue  of  stock  shall  be  made  unless  authorized  19 
by  vote  of  the  incorporators,  if  an  original  issue,  or  of  the  stockliolders  20 
if  an  increase  of  stock,  passed  not  more  than  foiu-  months  prior  to  such  21 
application;  but  a  vote  of  the  stockholders  to  increase  the  capital  stock  22 
may  be  passed  before  or  after  the  decision  of  the  department.  23 


Section  15.  A  gas  or  electric  company,  under  the  supervision  of 
the  department,  issuing  bonds  under  the  two  preceding  sections,  shall 
invite  proposals  for  the  purchase  thereof  by  advertisements  in  two  or 
more  newspapers  published  in  the  city  or  town  where  it  is  situated,  if 
there  be  such,  and  in  two  or  more  newspapers  pubhshed  in  Boston.  It 
maj^  however,  reserve  the  right  to  reject  any  and  all  bids.  If  no  such 
proposal  is  accepted,  it  may  sell  the  whole  or  any  part  of  the  bonds  to 
any  persons  or  corporations  in  such  manner,  at  such  times,  and  upon 
such  terms,  but  in  no  case  at  less  than  the  par  value  thereof  to  be  ac- 
tually paid  in  cash,  as  its  directors  shall  determine. 


1 

2 

3 
4 
5 

6 

7 

8 

9 

10 


Chap.  164.]     manufacture  and  sale  of  gas  and  electricity.  1809 

1  Section  16.     If,  when  the  department  approves  an  issue  of  new  stock  Capital  im- 

2  or  bonds  by  a  gas  or  electric  company,  it  determines  that  the  fair  struc-  mad'e''go°od* 

3  tural  value  of  the  plant  and  of  the  land  of  such  company  is  less  than  isgil;  473' ^ ''■ 

4  its  outstanding  stock  and  debt,  it  may  prescribe  such  conditions  and  Rg,;^^' 

5  requirements  as  it  deems  best  adapted  to  make  good  within  a  reasonable  J|'V''P' 

6  time  the  impairment  of  the  capital  stock;  or  before  allowing  an  increase,  199  i\iass.  352. 

7  it  may  require  the  capital  stock  to  be  reduced  by  a  prescribed  amount, 

8  not  exceeding  the  amount  of  such  impairment.    The  amount  of  impair- 

9  ment  and  the  conditions  and  requirements  imposed  shall  be  stated  in 

10  the  annual  report  of  the  department.    The  supreme  judicial  or  superior 

11  court  shall  have  jurisdiction  in  equity,  on  application  of  the  department, 

12  the  attorney  general,  any  stockholder  or  any  interested  party,  to  enforce 

13  this  section  and  section  fourteen  and  all  orders  and  decisions,  conditions 

14  or  requirements  of  the  department  made  in  pursuance  thereof. 

1  Section  17.     A  director,  treasurer  or  other  officer  or  agent  of  a  gas  Penalties. 

2  or  electric  company  who  knowingly  votes  to  authorize  the  issue  of,  or  r^l!  10°!  |  Is. 

3  knowingly  signs,  certifies  or  issues,  stock  or  bonds  contrary  to  any  pro-  jj^o.'igg. 

4  vision  of  section  fourteen  or  sixteen,  or  who  knowingly  votes  to  authorize 

5  the  application  of,  or  knowingly  applies,  the  proceeds  of  such  stock  or 

6  bonds  contrary  to  any  said  provision,  or  who  knowingly  votes  to  assume 

7  or  incur,  or  knowingly  assumes  or  incurs  in  the  name  or  behalf  of  such 

8  corporation,  any  debt  or  liability  except  for  the  legitimate  purposes  of 

9  the  corporation,  shall  be  punished  by  a  fine  of  not  more  than  one  thou- 
10  sand  dollars  or  by  imprisonment  for  not  more  than  one  year,  or  both. 

1  Section  18.     If  a  gas  or  electric  company  increases  its  capital  stock,  Disposition 

2  such  new  shares  shall,  except  as  provided  in  the  following  section,  be  "f  gl7m"'^^ 

3  offered  proportionately  to  its  stockholders  at  such  price,  pot  less  than  oompinies. 

4  par,  as  its  directors  may  fix.    The  vote  of  the  department,  as  provided  in  \^l'^-  ^l^- 

5  section  foiu-teen,  as  to  the  amount  of  stock  reasonably  necessary  for  the  |,  1^  333. 

6  purpose  for  which  such  increase  has  been  authorized,  shall  be  based  on  the  §§39-41! 

7  price  fixed  by  the  directors,  unless  the  department  deems  that  such  price  §§  i.'s. "" 

8  is  so  low  as  to  be  inconsistent  with  the  public  interest,  in  which  case  it  1909;  477,  ^  ^°' 

9  may  fix  the  price  at  which  such  shares  may  be  issued.    Its  determination  1910,174 

10  shall  be  made  part  of  the  vote  of  the  department  as  provided  in  section  ls'43^i^Qg 

11  fourteen,  and  shall  be  certified  and  recorded  as  therein  prescribed.    The 

12  directors,  upon  the  approval  of  such  increase  as  provided  in  section 

13  foiu'teen  and  the  fixing  of  the  price  as  herein  provided,  shall  cause  WTit- 

14  ten  notice  of  such  increase  to  be  given  to  every  stockholder  who  M-as 

15  such  at  the  date  of  the  vote  to  increase,  stating  the  amount  of  such  in- 

16  crease,  the  number  of  shares  or  fractions  of  shares  to  which  he,  accord- 

17  ing  to  the  proportionate  number  of  his  shares  at  the  date  of  such  vote, 

18  is  entitled,  the  price  at  which  he  may  take  them,  and  fixing  a  time,  not 

19  less  than  fifteen  days  after  the  date  of  such  determination,  within  which 

20  he  may  subscribe  for  such  additional  stock;  provided,  that  when  the  capi- 

21  tal  stock  of  the  corporation  consists  of  preferred  and  common  stock, 

22  the  agreement  or  amended  agreement  of  association  or  the  by-laws  or 

23  amended  by-laws  of  the  corporation  may  provide  that  the  holders  of 

24  preferred  stock  only  shall  be  entitled  to  subscribe  for  new  or  additional 

25  preferred  stock  and  that  the  holders  of  common  stock  only  shall  be  en- 

26  titled  to  subscribe  for  new  or  additional  common  stock,  and  that  notice 

27  of  such  increase  as  aforesaid  need  be  given  only  to  the  stockliolders  so 

28  entitled  to  subscribe.    Every  stockholder  entitled  to  subscribe  as  afore- 


1810 


MANUFACTURE    AND    SALE    OF   GAS   AND    ELECTRICITY.      [CHAP.    164. 


said  may,  within  the  time  hmited,  subscribe  for  his  portion  of  the  stock,  29 

which  shall  be  paid  for  in  cash  before  the  issue  of  a  certificate  therefor.  30 

All  votes  and  proceedings  relative  to  the  increase,  and  all  rights  of  stock-  31 

holders  to  subscribe  for  the  new  shares,  shall  be  void  unless  the  directors,  32 

after  the  vote  to  increase  and  within  sixty  days  after  final  action  of  the  33 

department,  shall  cause  written  notice  of  such  increase  to  be  given  as  34 

herein  provided,  or,  if  such  increase  is  within  the  provisions  of  the  fol-  35 

lowing  section,  shall  dispose  of  the  same  as  therein  provided.  36 


When  shares 
to  be  sold 
at  auctiou. 
1870.  179. 
1873.  39. 
§  1;  3.33. 
P.  S.  lOG.  §  40. 
1894,  472,  §  2. 
R.  L.  109,  §  31. 
1909.  477. 
§§2.3. 
1914.  742. 
§§  44,  199. 


Section  19.  If  an  increase  subject  to  the  preceding  section  does  not  1 
exceed  four  per  cent  of  the  existing  stock  of  the  company,  the  directors,  2 
without  first  ofi'ering  the  shares  to  the  stockliolders,  may  sell  them  by  3 
auction  or  by  tender  to  the  highest  bidder  in  such  manner,  at  such  4 
times  and  upon  such  terms,  not  less  than  par  to  be  paid  in  cash,  as  the  5 
directors  shall  determine.  They  shall  also  so  sell  at  public  auction  any  6 
shares  which  under  the  provisions  of  the  preceding  section  remain  unsub-  7 
scribed  for  by  the  stockliolders  entitled  to  take  them.  Such  shares  shall  8 
be  offered  for  sale  in  Boston  or  in  such  other  town  as  the  department  pre-  9 
scribes,  and  notice  of  the  time  and  place  of  the  sale  "shall  be  published  at  10 
least  five  times,  during  the  ten  days  immediately  preceding  the  sale,  in  11 
each  of  tliree,  at  least,  of  such  daily  newspapers  as  the  department  may  12 
prescribe.  13 


Capital  to  be 
paid  in  before 
commencing 
business. 
1829.  53.  §  6. 
R.  S,  38. 
§§  10,  17. 
1851,  133,  §  4. 
1857,  276,  §  1. 
G.  S.  60. 
§§  17.  IS; 
61.  §  8. 
1866.  290,  §  8. 
1870,  224,  §  32. 
1875,  177,  §  2. 


Section  20.     A  corporation  subject  to  this  chapter  shall  not  begin  1 

business  until  the  whole  amount  of  its  capital  stock,  or  such  part  thereof  2 

as  may  have  been  approved  by  the  department,  has  been  paid  in  and  a  3 

certificate  of  that  fact,  and  of  the  manner  in  which  it  has  been  paid  in,  4 

and,  at  the  time  of  making  the  certificate,  been  invested  or  voted  by  the  5 

corporation  to  be  invested,  signed  and  sworn  to  by  the  president,  treasurer  6 

and  a  majority  of  the  directors,  has  been  filed  in  the  office  of  the  state  7 

secretary.             p.  s.  loe.  §  46.            r.  l.  no,  §  43.            1914, 742,  §1 48, 199.  8 


6  Met.  114. 
101  Mass.  381. 


117  Mass.  476. 
152  Mass.  428. 


179  Mass.  15. 
ISO  Mass.  325. 


Transfer  of 
franchise 
forbidden. 
1886,  340.  §  4. 
R.  L.  121,  §  13. 
1911,  349. 
1914,  742, 
§§51,  199. 


Section  21.     A  corporation  subject  to  this  chapter  shall  not,  except  1 

as  otherwise  expressly  provided,  transfer  its  franchise,  lease  its  works  2 

or  contract  with  any  person,  association  or  corporation  to  carry  on  its  3 

works,  without  the  authority  of  the  general  court.  4 


166  Mass.  217 


215  Mass.  394. 


Op.  A.  G.  (1920)  29. 


Change  of 
corporate 
business. 
1875.  177.  §4. 
P.  S.  106,  §  51. 
1885,  310. 
R.  L.  110.  §  47. 
1910,  124. 

1914.  742. 
§§  52.  199. 

1915,  192. 


Section  22.     A  corporation  subject  to  this  chapter  may,  by  a  vote  of  1 

all  its  stockliolders  at  a  meeting  duly  called  for  the  purpose,  alter,  add  to  2 

or  change  the  business  for  which  it  was  incorporated,  but  it  shall  not  be  3 

empowered  thereby  to  engage  in  any  business  not  authorized  by  this  4 

chapter,  and  if  a  gas  company,  it  shall  not  engage  in  the  business  of  5 

making  or  selling  electricity  unless  duly  authorized  to  engage  therein  6 

as  provided  in  the  following  section,  and  if  an  electric  company,  it  shall  7 

not  engage  in  the  business  of  making  or  selling  gas.     A  certificate  setting  8 

forth  such  alteration,  addition  or  change,  signed  and  sworn  to  by  the  9 

president,  treasurer  and  a  majority  of  the  directors,  shall  be  filed  in  the  10 

office  of  the  state  secretarv.  H 


Gas  company 
authorized  to 
sell  electricity. 
1887.  3S5,  §  1. 


Section  23.     The  department,  upon  -m-itten  application  of  a  gas  com-     1 
pany,  may,  after  notice  and  a  hearing,  authorize  said  company  to  engage    2 


Chap.  164.]    m.\nuf.\ctube  and  sale  of  gas  and  electricity.  1811 

3  in  the  business  of  generating  and  furnishing  electricity  in  the  territory,  R.  l.  121,  §  14. 

4  or  any  such  part  thereof  as  the  department  may  designate,  in  which  it  §§  53. '199. 

5  is  authorized  to  supply  gas;  but  it  shall  not  engage  in  said  business  unless  ^^^  ^^''^''  ^^''' 

6  authorized  by  vote  of  two  tliirds  of  the  stockholders,  representing  not 

7  less  than  two  thirds  of  the  stock,  at  a  meeting  duly  called  therefor.     Said 

8  company  shall  file  in  the  office  of  the  state  secretary  a  certificate  as  pro- 

9  vided  in  the  preceding  section. 

1  Section  24.     The  department,  when  granting  such  authority,  shall  ^^Xd"f^r 

2  prescribe  the  time,  not  exceeding  six  months,  within  which  said  company  equipping 

3  shall  acquire  a  plant  for  generating  the  electricity  required  in  the  specified  issy.'sss,  §  2. 

4  territory,  and  shall  designate  the  minimum  capacity  of  the  plant;  and  if  \9u.~h'. 

5  the  company  fails  to  acquire  said  plant  within  the  time  prescribed,  said  ^^  ^'  '^^' 

6  authority  shall  be  void  and  no  such  authority  shall  be  again  granted  to 

7  it  within  two  years  thereafter.     The  department  may,  for  cause  shown, 

8  extend  the  time  for  erecting  and  equipping  said  plant  for  not  more  than 

9  three  months  after  the  expiration  of  the  time  first  prescribed. 

1  Section  25.     At  the  expiration  of  such  time  or  of  any  extension  thereof,  ^rd™s''for 

2  the  department  shall,  after  such  examination  as  it  deems  proper,  make,  in  erection  of 

3  a  book  kept  tlierefor,  a  record  that  its  orders  relative  to  the  acquisition  of  compliance. 

4  said  plant  have  or  have  not  been  complied  with,  which  record  shall  be  r.  l.  121,'  §  le. 

5  conclusive  evidence  of  the  truth  of  the  matters  stated  therein.  Il'^ss/ilg. 

1  Section  26.    Such  gas  company  may,  subject  to  the  provisions  of  f^^lSitse  °itc 

2  sections  ninety-six,  ninety-eight  and  ninety-nine,  purchase  or  lease  and  of  electric 

3  use  the  property,  licenses,  rights,  privileges  and  franchises  of  any  electric  iss?,  sss,  §  9. 

4  company  engaged  in  the  business  of  furnishing  electricity  in  the  territory  1914!  742! 

5  where  such  gas  company  may  be  authorized  to  furnish  such  electricity.  ^^  ''^'  ^^^' 

1  Section  27.     Except  as  otherwise  expressly  provided  in  this  chapter.  Powers  and 

2  such  gas  company  shall,  in  exercising  the  powers  conferred  by  the  four  company  so 

3  preceding  sections,  have  all  the  powers  and  privileges  and  be  subject  to  i887?385!'§  s. 

4  all  the  duties,  restrictions  and  liabilities  of  an  electric  company.  ^  ^  ^"^'  ^  ^^• 

1914,742,  §§  57,  199. 

1  Section  28.     If  a  corporation  subject  to  this  chapter  changes  its  name,  change  of 

2  as  provided  iia  section  ten  of  chapter  one  hundred  and  fifty-five,  the  new  tmmt'^  " 

3  name  shall  contain,  at  the  end  thereof,  the  words  "gas  company",  or  ^^"'  ^^'    ^^' 

4  "electric  company",  as  the  case  may  be. 

1  Section  29.     Whenever  any  change  is  made  in  the  officers  of  a  cor-  Certificate  of 

2  poration  subject  to  this  chapter,  except  at  the  annual  meeting,  a  certifi-  officers  to 

3  cate  of  such  change,  signed  and  sworn  to  by  the  clerk,  shall  forthwith  be  190*7,^282. 

4  filed  in  the  offices  of  the  commissioner  of  corporations  and  taxation  and  Jgif;  yfj] 

5  of  the  department.     Any  such  corporation  failing  to  file  such  certificate  i9i|^'257^§  376 

6  within  thirty  days  after  such  change  has  been  made,  or  which  fails  to  i9i9!5;350, 

7  keep  a  clerk  of  the  corporation  in  the  commonwealth,  shall  forfeit  not  1920,2. 

8  more  than  fi\'e  hundred  dollars,  to  be  recovered  in  the  manner  prescribed 

9  by  section  forty-two  of  chapter  one  hundred  and  fifty-eight. 

1  Section  30.     The  department  may,  after  notice  and  a  public  hearing,  change  of 

2  authorize  a  gas  or  electric  company  to  carry  on  its  business  in  any  1877,67. 

3  town  in  the  commonwealth  other  than  the  town  named  in  its  agreement  r.  l.\to,§7. 


1812 


MANUFACrUEE   .AND   SALE   OF  GAS   -AND  ELECTRICITY.      [ClIAP.    164. 


1910,  197. 
1914.  742, 
§§  61,  199. 
1919, 111. 


of  association  or  charter,  subject  to  sections  eighty-sLx  to  eighty-eight,  4 
inclusive,  and  it  may  purchase,  hold  and  convey  real  and  personal  estate  5 
in  such  other  town  necessarv  for  carrying  on  its  business  therein.  6 


panfesm?y  SECTION  31.    A  manufacturing  or  other  corporation  having  its  place     1 

°g^d  gas^stodi.   Qf  business  in  a  city  or  town  where  a  gas  company  proposes  to  manufac-     2 
G_s.'6i.  |;is.^    ture  gas  for  light  may  hold  not  more  than  ten  per  cent  of  the  capital     3 


1870,  224,  §  58.  ,        ,  , 

p.  s.  106,  §  78.    stock  or  such  gas  company. 


R.  L.  no.  §79. 


1914,  742,  |§  64.  199. 


Liability 
of  officers. 
1821.  38. 
1829.  53, 
§§  8,  9. 


189  Mass.  566. 

190  Mass.  61. 


183  Mass.  557. 


5  Allen,  398. 
127  Mass.  663. 
156  Mass.  490. 
173  Mass.  242. 
198  Mass.  76. 


Section  32.     The  officers  of  a  corporation  subject  to  this  chapter  shall  1 

be  jointly  and  severally  liable  for  its  debts  and  contracts  in  the  following  2 

cases,  and  not  otherwise :                            R.  s.  38,  §§  23-25, 28.  3 

,  30.  P.  S.  106,  §  60. 


12  Gray,  203. 
148  Mass.  226. 
150  ilass.  264. 


G.  S.  60.  §§  17-£ 
1862,  218,  §  1. 
1870,  224,  I  38. 
1877,  230,  §  1. 


P.  S.  106, 
1898,  266. 
R.  L.  110,  §58. 
1914,  742,  §§  73, 


199. 


10  Gray,  232,  GOO. 
15  Gray,  216. 
108  Mass.  523. 
137  Mass.  516. 


The  president  and  directors  shall  be  so  liable  — 

First,  For  making  or  consenting  to  a  dividend  if  the  corporation  is  or 
thereby  is  rendered  insolvent,  to  the  extent  of  such  dividend. 

Second,  For  debts  contracted  between  the  time  of  making  or  assenting 
to  a  loan  to  a  stockholder  and  the  time  of  its  repayment,  to  the  extent  of 
such  loan. 

Third,  If  the  debts  of  a  corporation  other  than  bonds  heretofore  law- 
fully issued  or  other  than  bonds  hereafter  approved  under  section 
fourteen  exceed  its  capital,  to  the  extent  of  such  excess  existing  at  the  12 
time  of  the  commencement  of  the  suit  against  the  corporation  in  which  13 
the  judgment  was  recovered  upon  which  the  suit  in  equity  to  enforce  such  14 
liability  is  brought  as  provided  in  section  forty-nine  of  chapter  one  hun-  15 
dred  and  fifty-eight. 

The  president,  directors  and  other  officers  shall  be  so  liable  — 

Fourth,  For  signing  any  certificate  required  by  law,  knowing  it  to  be 
false;  but  onh-  the  officers  having  knowledge  thereof  shall  be  liable. 

182  Mass.  530,  578.  190  Mass.  35. 


9 
10 
11 


16 
17 
18 
19 


193  Ma^.  138.        Fifth,  For  debts  contracted  before  the  original  capital  has  been  fully  20 
paid  in  and  the  certificate  of  such  payment  has  been  filed  in  accordance  21 

with  section  twenty.  Liability  of  stockholders.  Chap.  158,  §§  45-54.  22 


Fees. 

1863, 

231, 

§2. 

1865, 

76. 

1870, 

224. 

§  59. 

1871, 

356. 

1875, 

177, 

1  4. 

1879. 

202. 

§  2. 

P.  S. 

106, 

§84. 

1887, 

225. 

1895, 

169. 

1896, 

369: 

523,  §§  1, 

o 

R.L. 

110. 

1  86. 

1908, 

219; 

382. 

1914, 

742, 

§§91 

,199 

1915,  92; 

264. 

lOp. 

A.G 

;.  205, 

300. 

Other  certifi- 

cates 

1870, 

224, 

§59. 

1875,  177,  §  4. 

1879, 

,202, 

,  §2. 

1895, 

,169. 

1896,  523,  §  1. 

R.L. 

,110, 

§86. 

Section  33.  The  fees  for  filing  and  recording  the  certificates  required  1 
to  be  filed  with  the  state  secretary  by  corporations  subject  to  this  chapter  2 
shall  be  as  follows:  3 

For  filing  and  recording  the  certificates  required  by  section  nine  of  4 
chapter  one  hundred  and  fifty-eight,  including  the  issuing  of  the  certifi-  5 
cate  of  incorporation  by  the  state  secretary,  one  twentieth  of  one  per  6 
cent  of  the  amount  of  the  capital  stock  as  fixed  by  the  agreement  of  asso-  7 
ciation,  but  not  less  than  five  dollars.  8 

For  filing  and  recording  the  certificate  required  by  section  thirty-nine  9 
of  chapter  one  hundred  and  fifty-eight,  one  twentieth  of  one  per  cent  of  10 
the  amount  by  which  the  capital  is  increased.  11 

For  filing  and  recording  the  copies  of  the  votes  or  certificates  required  12 
by  section  eleven,  thirty-six  or  forty  of  chapter  one  hundred  and  fifty-  13 
eight,  section  sixteen  of  chapter  one  hundred  and  fifty-five  or  section  14 
twenty  or  twenty-three  of  this  chapter,  ten  dollars  for  each  copy  or  cer-  15 
tificate;  for  filing  and  recording  the  certificate  required  by  section  thirty-  16 


Chap.  164.]       m.\nufactuee  and  sale  of  gas  and  electricity.  1813 

17  seven  of  chapter  one  hundred  and  fifty-eight,  ten  dollars;  for  filing  and  Jlzo  Mk ^"^^^ 

18  recording  any  other  certificate  required  by  law,  one  dollar.  §§5.'6- 

MUNICIPAL  LIGHTING  PLANTS. 

1  Section  34.     A  town  may,  in  accordance  with  this  chapter,  construct,  city  or  town 

2  purchase  or  lease,  and  maintain  within  its  limits,  one  or  more  plants  for  plant. 

3  the  manufacture  or  distribution  of  gas  or  electricity  for  municipal  use  or  isb*!  533.' 

4  for  the  use  of  its  inhabitants.     Such  plants  may  include  suitable  land,  fcioe]  Ira.^iii, 

5  structures  and  machinery  and  other  apparatus  and  appliances  for  manu-  igi4^'742*' 

6  facturing,  using  and  distributing  gas  or  electricity  for  said  purposes.        i9i7"'2os^§ 2 

150  Mass.  592.  153  Mass.  129.  155  Mass.  598. 

1  Section  35.     A  city  shall  not  acquire  such  a  plant  until  authorized  by  vote  of  city. 

2  a  two  thirds  vote  of  its  city  council,  or  of  a  majority  of  the  commissioners  isos!  454,'  §  7." 

3  if  the  city  government  consists  of  a  commission,  passed  in  each  of  two  Ifl*'  *^^' 

4  consecutive  municipal  years  and  thereafter  ratified  by  a  majority  of  the  ^914;  -^2^  ^■ 

5  voters  at  an  annual  or  special  city  election.     If  such  a  vote  is  not  rati-  §§93,199. 

6  fied,  no  similar  vote  shall  be  submitted  for  ratification  within  one  year 

7  thereafter. 


1  Section  36.     A  town  shall  not  acquire  such  a  plant  until  authorized  ^^^^  370°!" 

2  by  a  two  thirds  vote,  taken  by  ballot  with  the  use  of  the  voting  list,  at  k  l'.  34, 1 3 


3. 


1914,  "42, 


3  each  of  two  town  meetings  called  therefor  and  held  at  intervals  of  not  §§  94, 199 

4  less  than  two  nor  more  than  thirteen  months.     If  the  first  of  such  votes  103  Mass!  346! 

5  is  favorable  and  the  second  unfavorable,  or  if  both  such  votes  are  un-  ^"'^  ^''^^' ''' 

6  favorable,  no  similar  vote  shall  be  passed  within  two  years  thereafter. 

1  Section  37.     After  a  city  or  town  has  voted  under  section  thirty-five  Certification 

2  or  thirty-sLx,  the  city  or  town  clerk  shall  forthwith  transmit  to  the  de-  department. 

3  partment  a  certified  copy  of  so  much  of  the  records  of  the  city  council  or  r*^l!  34^§V' 

4  of  the  town  as  relates  to  the  result  of  the  vote.         i9i4, 742,  §§  95, 199. 

1  Section  38.     If  a  city  or  town  which  has  authorized  the  acquisition  of  Certification 

2  such  a  plant  subsequently  votes  to  establish,  purchase,  reconstruct,  ex-  votes,  etc. 

3  tender  enlarge  a  plant,  or  to  issue  bonds,  notes  or  certificates  of  indebted-  r  £'34^1  s." 

4  ness  on  account  thereof,  or  to  regulate  the  management  or  conduct  thereof,  sl'gs.^i'gg. 

5  or  to  adopt  an  ordinance  or  by-law  relative  thereto,  the  city  or  town  clerk 

6  shall,  within  ten  days  after  such  vote,  transmit  to  the  department  a  certi- 

7  fied  copy  thereof. 

1  Section  39.     A  city  or  town  clerk  failing  to  comply  with  any  pro-  Penalty  for 

2  vision  of  the  two  preceding  sections  shall  forfeit  not  more  than  twenty-  cert"iiy  \°ote. 

3  five  dollars.  is92, 259,  §  4.  r.  l.  34,  §  g.  1914, 742,  §§  97, 199. 

1  Section  40.     A  city  or  town  which  has  duly  voted  to  acquire  a  mu-  May  incur 

2  nicipal  lighting  plant  may  incur  debt  as  provided  in  section  eight  of  chap-  pfant.""^ 

3  ter  forty-four  for  the  purpose  of  establishing,  purchasing,  extending  or  isgs]  454,' §  9! 

4  enlarging  it  within  its  territorial  limits. 

1894,  182.  1908,  341,  §§  2,  4.         1914,  742,  §§  98,  199. 

R.  L.  27,  §  5;  34,  §§  7,  8.         1913,  719,  §  6.  1915,115. 

1  Section  41.     A  city  or  town  owning  such  a  plant  shall  not,  except  by  Enlargement 

2  a  vote  taken  in  the  manner  prescribed  in  section  eight  of  chapter  forty-  i89ir37b,  1 5. 


1814 


MANUFACTURE   AND   SALE    OF   GAS   AND   ELECTRICITY.       [ChAP.    164. 


R.  L.  34,  §  9. 

1913,  719,  §  e. 

1914,  742, 
§§  99,  199. 


four,  reconstruct,  enlarge  or  extend  the  same  beyond  the  necessary  and  3 

ordinary  maintenance,  repair  and  replacement  thereof,  or  the  provision  4 

of  increased  appliances  necessary  to  distribute  gas  or  electricity  to  new  5 

consumers.  6 


Purchase  of 
existing  plant. 
1891,  370.  §  12. 

1893,  454,  §  5. 

1894,  538. 

R.  L.  34,  §  10. 
1903,  255. 
1914,  742, 
§§  100,  199. 
1915,20.  §  1. 
179  Mass.  305. 
232  Mass.  7. 


Section  42.  If,  whci^  a  town  votes  to  establish  a  municipal  lighting  1 
plant,  any  person  or  corporation  engaged  at  the  time  of  the  first  vote  2 
required  by  sections  thirty-five  and  thirty-six  in  generating  or  distributing  .3 
gas  or  electricity  for  sale  for  lighting  purposes  in  such  town  shall  elect  4 
to  sell  in  the  manner  liereinafter  provided,  tlie  town  shall  purchase  of  5 
him  or  it  such  portion  of  his  or  its  plant  and  property  within  the  limits  6 
of  such  town  as  is  suitable  for,  and  is  used  in  connection  with,  such  7 
business.  Such  purchase  shall  be  required  to  include  both  a  gas  and  8 
electric  lighting  plant  only  if  a  single  corporation  owns  or  operates  both  9 
such  plants.  If  the  main  gas  works  or  the  central  electric  station  lie  10 
within  the  town  limits,  such  town  shall  purchase  the  whole  of  such  plant  11 
and  the  property  used  in  connection  therewith,  lying  within  such  limits,  12 
at  its  fair  market  value  for  the  purposes  of  its  use,  taking  into  account  13 
any  depreciation  or  obsolescence  thereof  or  of  any  part  thereof;  but  no  14 
portion  of  such  plant  shall  be  estimated  at  less  than  its  fair  market  15 
value  for  any  other  purpose,  including,  as  an  element  of  value,  the  dam-  16 
ages,  if  any,  caused  by  the  severance  of  any  portion  of  such  plant  lying  17 
outside  such  town  limits,  if  not  purchased  by  the  town,  and  excluding  18 
any  mortgage  or  other  encumbrance  or  lien  to  which  such  plant  or  any  19 
part  thereof  may  be  subject  at  the  time  of  such  purchase.  The  town  20 
may  require  the  plant  and  property  to  be  transferred  to  it  free  of  any  21 
mortgage  or  lien  unless  the  department,  under  the  following  section,  22 
otherwise  determines.  Such  value  shall  be  estimated  without  enliance-  23 
ment  on  account  of  future  earning  capacity,  or  good  will,  or  of  exclusive  24 
privileges  derived  from  rights  in  the  public  ways.  If  the  main  gas  works  25 
or  central  electric  station  of  such  plant  lie  without  the  town  limits,  the  26 
town  shall  purchase  only  that  portion  of  the  plant  or  property  within  27 
its  limits,  estimating  its  value  as  above  provided,  but  without  allowance  28 
of  damages  on  account  of  severance  of  plant.  No  town  shall  be  required  29 
to  buy  any  apparatus  or  appliances  covered  by  letters  patent  of  the  30 
United  States  or  embodying  a  patentable  invention,  unless  a  complete  31 
right  to  use  the  same  and  all  other  apparatus  or  appliances  necessary  32 
for  its  use,  to  such  extent  as  such  town  shall  reasonably  require,  shall  be  33 
assigned  or  granted  to  it  at  a  cost  as  low  as  it  would  be  to  the  vendor  34 
whose  plant  is  purchased.  No  town  shall  be  required  to  buy  any  prop-  35 
erty  unnecessarily  added  to  a  phint  after  the  passage  of  its  first  vote  36 
under  section  thirty-five  or  thirty -sLx,  nor  any  property  except  such  as  37 
would  be  suitable  for  the  ordinary  business  of  the  vendor.  If  any  prop-  38 
erty  or  plant  which  the  town  would  be  entitled  or  required  to  buy  would  39 
not  be  available  to  it  if  piu-chased,  by  reason  of  liens,  interests  of  third  40 
parties,  private  contracts  or  other  causes  whereby  the  town  would  be  at  41 
a  greater  disadvantage  in  its  use  than  the  vendor,  it  may  be  released  42 
from  buying  the  same,  or  it  may  be  allowed  an  equitable  discomit  from  43 
the  purchase  price  as  the  department  may  determine  as  provided  in  tlie  44 
following  section.  45 


o°purch"s°'  Section  43.  The  owner  of  any  such  plant  for  the  manufactiu-e  or  1 
1893'  454'  I  "■  distribution  of  gas  or  electricity  for  lighting  purposes,  desiring  to  sell  it  2 
R.  l!34, '§  ii!    under  this  chapter,  shall,  within  sixty  days  after  the  passage  of  the  final     3 


Chap.  164.]    m-\nufacture  and  sale  of  gas  and  electricity.  1815 

4  vote  of  the  town  required  by  section  tliirty-five  or  thirty-six,  file  with  i905, 4io.  §  i. 

5  the  clerk  of  the  town  a  good  and  sufficient  conveyance,  duly  executed,  of  §§  i6i,  Too. 

6  such  parts  of  his  plant  as  are  defined  in  section  forty-eight  as  he  desires  l^l  Mass!  tlf. 

7  to  sell,  together  with  a  detailed  schedule  of  the  plant  included  in  the  232  Mass.  7. 

8  conveyance  and  a  statement  of  the  price  which  he  is  willing  to  accept. 

9  Upon  the  filing  of  this  conveyance,  the  property  thereby  conveyed  shall 

10  vest  in  the  town,  and  within  ninety  days  thereafter  the  towTi  shall  take 

11  possession  of  the  property  so  con\'eyed;   and  the  owner  shall  surrender 

12  possession  thereof  upon  request.    A  city,  by  vote  of  the  city  council,  and 

13  a  town,  by  vote  of  the  selectmen,  may  agree  ^N-ith  the  owner  upon  the 

14  price  to  be  paid  for  the  plant  con^'eyed;   but  the  agreement  as  to  price 

15  shall  not  be  binding  in  to^\'ns  until  ratified  by  a  majority  vote  at  a  town 

16  meeting.     If  the  city  or  town  does  not  agree  with  the  OMTier  as  to  such 

17  price,  or  notifies  him  within  thirty  days  after  the  filing  of  the  conveyance 

18  that  it  is  dissatisfied  with  the  contents  thereof,  either  as  including  prop- 

19  erty  wliich  ought  not  to  have  been  included  or  as  not  including  property 

20  which  ought  to  have  been  included,  either  party  may,  within  sixty  days 

21  after  the  filing  of  the  conveyance,  apply  to  the  supreme  judicial  court 

22  for  the  county  where  the  city  or  town  is  situated  to  determine  what 

23  property  ought  to  have  been  included  in  the  conveyance  and  its  value. 

24  The  court  upon  hearing  and  upon  proof  that  the  foregoing  conditions 

25  have  been  complied  with  shall  refer  the  application  to  the  department, 

26  which  shall  hear  the  parties  and  determine,  in  accordance  with  the  rules 

27  prescribed  in  the  preceding  section,  the  A'alue  of  the  property  conveyed, 

28  and,  if  the  sufficiency  of  the  conveyance  in  this  regard  is  disputed,  what 

29  property  ought  to  have  been  conveyed  by  the  owner  to  the  town  and  its 

30  value.     The  department  shall  file  a  report  of  its  determination,  which, 

31  when  accepted  by  the  court,  shall  be  final.     The  award  shall  not  be  set 

32  aside  or  recommitted  for  error  in  law  unless  the  court  is  satisfied  that 

33  such  error  has  substantially  affected  the  interests  of  the  party  complaining 

34  thereof;  and  in  that  event  the  court  may  recommit  the  same  to  the  de- 

35  partment  with  such  directions  as  justice  may  require.     The  expense  of 

36  the  litigation,  if  any,  arising  under  this  section  may  be  included  as  part 

37  of  the  indebtedness  for  wliich  bonds  may  be  issued  under  section  forty. 

1  Section  44.     Any  property  conveyed  which,  according  to  the  final  offinardecTee 

2  decree  of  the  court,  ought  not  to  have  been  conveyed,  shall  forthwith  be  jsw.  37o,  §  14. 

3  reconveyed  by  the  town  to  the  owner,  without  liability  to  account  for  the  1905'  41b,  §  2. 

4  mesne  profits  thereof  or  to  pay  interest  on  the  value  thereof;    and  any  §§  162, 199. 

5  property  which,  according  to  said  decree,  ought  to  have  been  but  was 

6  not  included  in  the  conveyance,  shall  forthwith  be  conveyed  by  the 

7  owner  to  the  town.   The  town  shall  pay  the  owner  the  value,  determined 

8  as  provided  in  section  forty-two,  of  the  property  conveyed  or,  if  the 

9  sufficiency  of  the  con\'eyance  in  this  regard  is  disputed,  the  A'alue  of  the 

10  property  which  ought  to  have  been  conveyed,  with  interest  from  the 

11  date  of  the  conveyance  or,  if  any  additional  conveyance  is  required  by 

12  the  decree,  from  the  dates  of  the  several  conveyances. 

1  Section  45.     If  a  town  pm-chases  a  gas  or  electric  lighting  plant  hav-  Property  in 

2  ing  mains,  poles,  wires  or  other  distributing  apparatus  in  an  adjoining  or\°own.*  "^'^ 

3  town  where  there  is  no  private  gas  or  electric  lighting  company,  it  may  r*^!!!  s^'s^s! 

4  also  purchase  such  mains,  poles,  wires  or  other  distributing  apparatus  jjWA'ot. 

5  therein,  subject  to  the  three  preceding  sections. 


1816 


M.'VNUFACTUEE   AND   SALE   OF  GAS   .-USTD   ELECTRICITY.      [Cli\P.    164. 


Supply  of 
adjoining  city 
or  town. 
1893,  454,  §  2. 
R.  L.  34,  §  14. 
1914,  742, 
§§  1(M,  199. 


Supply  by 
municipal 
plants  to  ad- 
joining cities 
or  towns. 
1915,  191. 


Owner  to  file 
statement  of 
plant. 

1893,454,  §  3. 
R.  L.  34,  §  15. 
1914.  742. 
§§  105,  199. 


Section  46.     A  to\\n  which  has  acquired,  as  hereinbefore  provided,  1 

mains,  poles,  wires  or  other  distributing  apparatus  in  an  adjoining  town  2 

may  thereafter  manufacture,  sell  and  distribute  gas  or  electricity  to  said  3 

adjoining  town  or  to  its  inhabitants,  and  shall  thereafter  have  therein  4 

the  same  rights  and  franchises  and  be  subject  to  the  same  hmitations  and  5 

obligations  as  the  vendor  from  whom  such  outlying  plant  was  purchased  6 

would  have  had  or  to  which  he  would  have  been  subject  had  such  pur-  7 

chase  not  been  made.    If  the  adjoining  town  shall  itself  establish  a  gas  8 

or  electric  lighting  plant,  it  shall,  under  sections  forty-two,  forty-three  9 

and  forty-four,  purchase  the  plant  and  property  within  its  limits  owned  10 

by  the  other  town,  which,  within  thirty  days  after  demand  filed  with  its  11 

clerk,  shall  file  with  the  clerk  of  the  purchasing  town  the  schedule  re-  12 

quired  by  section  forty-three,  and  shall  sell  the  same;    and  thereupon  13 

its  rights  to  maintain  a  gas  or  electric  lighting  plant  or  to  sell  gas  or  14 

electricity  within  the  limits  of  the  purchasing  town  shall  cease  as  to  15 

the  plant  sold.  16 

Section  47.  The  department  may,  after  notice  and  a  public  hearing,  1 
authorize  a  town  which  has  acquired  a  municipal  lighting  plant  to  extend  2 
its  mains  or  lines  into  an  adjoining  town  in  order  to  distribute  and  sell  3 
gas  or  electricity  therein,  if  such  town  or  a  private  corporation  therein  is  4 
not  then  supplying  such  town  with  gas  or  electricity,  as  the  case  may  be.  5 
Such  authorization  shall  be  upon  such  terms  and  with  such  limitations  6 
and  restrictions  as  the  department  deems  for  the  public  interest.  A  town  7 
so  authorized  shall  thereafter  have  in  such  adjoining  town  the  same  8 
rights  and  privileges,  and  be  subject  to  the  same  limitations  and  obliga-  9 
tions,  as  it  has  within  its  own  territorial  limits.  If  the  adjoining  town  10 
shall  vote  to  establish  a  gas  or  electric  plant,  it  shall,  under  sections  11 
forty-two,  forty-tliree  and  forty-four,  purchase  the  plant  and  property  12 
within  its  limits  owned  b,y  the  other  town,  which,  within  thirty  days  13 
after  demand  filed  with  its  clerk,  shall  file  with  the  clerk  of  the  pur-  14 
chasing  to^n  the  schedule  required  by  section  forty-three,  and  shall  sell  15 
the  same;  and  thereupon  its  rights  to  maintain  a  gas  or  electric  plant  16 
or  to  sell  gas  or  electricity  within  the  limits  of  the  purchasing  town  shall  17 
cease  as  to  the  plant  sold.  18 

Section  48.  After  the  first  of  the  two  votes  required  by  section  1 
thirty-five  or  thirty-six  shall  have  been  passed  in  a  town,  any  person  or  2 
corporation  owning  a  gas  or  electric  lighting  plant  therein  and  desiring  3 
to  preserve  the  right  to  enforce  the  obHgation  of  such  town  to  purchase  4 
his  or  its  plant  shall,  within  thirty  days  after  a  written  request  therefor  5 
by  the  mayor,  authorized  by  the  city  council  or  by  the  selectmen,  file  6 
with  the  town  clerk  a  detailed  statement  of  all  the  property  and  plant  7 
which  he  or  it  proposes  to  sell  to  such  town,  if  it  votes  to  establish  a  8 
plant,  and  the  proposed  terms  of  sale.  If  any  part  of  the  plant  or  prop-  9 
erty  which  the  town  would  have  the  right  to  buy  lies  in  an  adjoining  10 
town,  a  separate  schedule  and  the  proposed  terms  of  sale  shall  be  filed;  11 
and  all  the  property  named  in  such  schedule,  or  used  in  connection  12 
therewith,  shall  at  all  reasonable  times  thereafter  be  open  to  the  exami-  13 
nation  of  the  mayor,  of  any  committee  of  the  city  council  selected  by  14 
him,  and  of  any  experts  necessary  to  determine  its  value,  or  to  the  exami-  15 
nation  of  the  selectmen  and  of  any  such  ex-perts  selected  by  them.  The  16 
reasonable  expenses  of  such  schedule  and  of  such  examination  or  in-  17 
spection  shall  be  paid  by  the  town  requesting  the  same.  18 


Chap.  164.]     manufactitke  and  sale  of  gas  and  electricity.  1817 

1  Section  49.     Such  town  may,  at  any  time  within  sixty  days  after  the  Property  in 

2  filing  of  said  schedule,  by  ^-ote  of  its  city  council  or  of  the  ^-ote^s  of  the  Sr  town.'^wliTn 

3  town,  determine  that  such  purchase  shall  include  the  property  in  an  ad-  ism.'^Im,  §  4. 

4  joining  town,  and  thereupon  it  shall  be  under  the  same  obligations  and  5^14' ^42^  '*■ 

5  have  the  same  rights  in  regard  to  the  purchase  of  such  outhing  property  §§  ^o^,  199. 

6  as  if  it  were  witliin  its  limits;  but  such  vote  shall  not  prejudice  the  right 

7  of  the  town  voting  to  resist  its  obligation  to  purchase  the  same  for  any 

8  reason  except  that  said  property  is  not  wtliin  its  hmits.     If  such  vote  is 

9  not  taken  within  said  sixty  days,  the  right  of  the  town  to  buy  the  out- 
10  hang  property  shall  cease. 

1  Section  50.     If  a  town  acquires  a  gas  or  electric  lighting  plant,  the  vendor's  rights 

2  right  of  any  vendor  from  whom  such  plant  was  acquired  to  manufacture  iso^rsTa^l^is. 

3  and  distribute  gas  or  electricity  within  its  limits  shall  cease.  ^  ^-  ^*'  ^  ^^• 

1914,  742.  §§  107,  199. 

1  Section  51.     A  town  which  has  acquired  a  plant  for  the  manufacture  Purchase 

2  or  distribution  of  gas  may  purchase  gas  from  another  town  authorized  ei^eftriaty. 

3  to  sell  the  same  or  from  any  corporation  selling  gas;   and  a  town  which  r '""l  34?'§\l' 

4  has  acquired  a  plant  for  the  manufacture  or  distribution  of  electricity  }g?^'742' 

5  may  purchase  electricity  from  another  town  authorized  to  sell  the  same  §§  los,  199. 

6  or  from  any  corporation  selling  electricity,  except  as  provided  in  the  fol- 

7  lowing  section. 

1  Section  52.     A  town  in  which  no  person  or  corporation  is  engaged  in  Certain  towns 

2  generating  or  distributing  electricity  for  sale  and  which  has  voted  or  f?om  stTee't"^^ 

3  shall  vote  to  construct  one  or  more  plants  for  the  manufacture  or  dis-  coiiTpany. 

4  tribution  of  electricity  for  municipal  use  or  for  the  use  of  its  inhabitants,  \^^f  ^^|:  ^^^^ 

5  or  for  both  purposes,  may  make  contracts,  for  terms  not  exceeding  ten  ^^''  §1'],°'  ^^^■' 

6  years,  with  any  street  railway  company  operating  a  street  railway  in  §5 169.  Tot. 

7  such  town,  for  the  purchase  of  electricity  from  such  company  in  order  §  ii7.     ' 

8  to  furnish  electricity  for  municipal  use  or  for  the  use  of  its  inhabitants, 

9  or  both;   and  street  railway  companies  may  make  contracts  to  furnish 

10  electricity  as  aforesaid  to  a  town,  but  the  contracts  shall  not  become 

11  operative  unless  the  department  shall,  after  a  public  hearing,  approve 

12  the  terms  thereof  as  consistent  with  the  public  interest.    This  and  the 

13  three  following  sections  shall  not  apply  to  cities. 

1  Section  53.    Electricity  supplied  by  a  street  railway  company  to  a  Delivery  of 

2  town  shall  be  delivered  to  the  distributing  system  of  said  town  at  some  purchased."" 

3  specified  place  or  places  therein,  and  the  meter  or  meters  by  which  such  \IqI[  *qI[  ^  ^' 

4  electricity  is  measured  shall  be  a  part  of  the  distributing  system.  '^^'  ^^  *^^'  ^2*- 

1914,  742,  §§  110,  199. 

1  Section  54.     If  a  town  voting  to  purchase  electricity  from  a  street  Department 

2  railway  company  is  unable  to  agree  with  such  company  at  the  expira-  case  of  di?- '° 

3  tion  of  a  contract,  made  in  accordance  with  section  fifty-two,  upon  the  liol';  449,'§  3. 

4  price  to  be  paid  for  electricity  by,  or  upon  the  manner  in  which  elee-  in,''§|62  iss 

5  tricity  is  to  be  furnished  to,  said  town  in  the  future,  its  selectmen  may  ^^^*^  "■'2. 

6  apply  to  the  department  to  fix  the  price  which  it  shall  pay  for  said  elec-  laio.  aso, 

7  tricity  to,  and  the  manner  in  which  electricity  shall  be  furnished  by, 

8  said  company;    and  thereupon  the  department  shall  set  a  date  for  a 

9  public  hearing  upon  such  application,  giving  said  company  reasonable 

10  notice  thereof;    and  after  the  hearing  the  department  shall,  if  it  deems 

11  the  furnishing  of  such  electricity  consistent  with  the  interest  of  public 


1818 


MANUFACTUEE   AND  SALE   OF   GAS   AND   ELECTKICITY.      [ChAP.    164. 


travel  upon  the  railway  of  such  company,  fix  the  price  which  said  town  12 

shall  pay  for  electricity  to,  and  the  manner  in  which  electricity  shall  be  13 

furnished  by,  said  company;   and  said  company  shall  thereupon  furnish  14 

to  said  town  electricity  at  the  price  and  in  the  manner  fixed  by  the  15 

department.  16 


Municipal 
light  board. 
1893.  4M,  §  10. 
R.  L.  34,  §  19. 
1914,  742, 
§§  112,  199. 


Section  55.     A  town  which  has  established  or  votes  to  estabhsh  a  gas  1 

or  electric  plant  may  elect  a  municipal  light  board  consisting  of  three  2 

citizens  of  the  town,  one  of  whom  shall  be  chosen  for  one  year,  one  for  3 

two  years,  and  one  for  three  years,  and  at  each  annual  meeting  thereafter  4 

one  for  a  term  of  three  years,  who  shall  have  authority  to  construct,  pur-  5 

chase  or  lease  a  gas  or  electric  plant  in  accordance  with  the  vote  of  the  6 

town  and  to  maintain  and  operate  the  same.  7 


Manager  of 
municipal 
ligliting. 
1891,  370,  §  S. 
1893,  454,  §  10. 
R.  L.  34.  §  20. 
1905,  410.  §  3. 
1914,  742, 
§§  113,  199. 
196  Mass.  41. 


Section  56.  The  mayor  of  a  city,  or  the  selectmen  or  municipal  1 
light  board,  if  any,  of  a  town  acquiring,  a  gas  or  electric  plant  shall  ap-  2 
point  a  manager  of  municipal  lighting  who  shall,  under  the  direction  and  3 
control  of  the  mayor,  selectmen  or  municipal  light  board,  if  any,  and  4 
subject  to  this  chapter,  have  full  charge  of  the  operation  and  management  5 
of  the  plant,  the  manufacture  and  distribution  of  gas  or  electricity,  the  6 
pm-chase  of  supplies,  the  emplojinent  of  agents  and  servants,  the  method,  7 
time,  price,  quantity  and  quality  of  the  supply,  the  collection  of  bills,  and  8 
the  keeping  of  accounts.  His  compensation  and  term  of  office  shall  be  9 
fixed  in  cities  by  the  city  council  and  in  to\\'ns  by  the  selectmen  or  mu-  10 
nicipal  fight  board,  if  any;  and,  before  entering  upon  the  performance  11 
of  his  official  duties,  he  shall  give  bond  to  the  city  or  town  for  the  faith-  12 
ful  performance  thereof  in  a  sum  and  form  and  with  sureties  to  the  satis-  1.3 
faction  of  the  mayor,  selectmen  or  municipal  light  board,  if  any,  and  14 
shall,  at  the  end  of  each  municipal  year,  render  to  them  such  detailed  15 
statement  of  his  doings  and  of  the  business  and  financial  matters  in  his  16 
charge  as  the  department  may  prescribe.  All  moneys  payable  to  or  re-  17 
ceived  by  the  city,  to\™,  manager  or  municipal  light  board  in  connection  18 
\nth  the  operation  of  the  plant,  for  the  sale  of  gas  or  electricity  or  other-  19 
wise,  shall  be  paid  to  the  city  or  town  treasurer.  All  bills  chargeable  20 
to  the  plant  or  to  the  appropriations  therefor  shall  be  paid  by  the  said  21 
treasurer  on  requisition  by  the  manager  or  municipal  Ifght  board,  if  any.  22 
The  manager  shall  at  any  time,  when  required  by  the  mayor,  selectmen,  23 
municipal  light  board,  if  any,  or  department,  make  a  statement  to  such  24 
officers  of  his  doings,  business,  receipts,  disbursements,  balances,  and  of  25 
the  indebtedness  of  the  to^ai  in  his  department.  26 


Annual  income 
and  expense.^. 
1891,  370, 
l§4,  8. 

R.  L.  34.  §  21. 
1905.410.  §  4. 
1900.411. 
1908.  486. 
1914.  742, 
§§  114,  199. 
1918,  77,  §  1. 


Section  57.  At  the  beginning  of  each  fiscal  year,  the  manager  of  1 
municipal  lighting  shall  furnish  to  the  mayor,  selectmen  or  municipal  2 
light  board,  if  any,  an  estimate  of  the  income  from  sales  of  gas  and  elec-  3 
tricity  to  private  consumers  during  the  ensuing  fiscal  year,  and  of  the  4 
expense  of  the  plant  during  said  year,  meaning  the  gross  expenses  of  5 
operation,  maintenance  and  repair,  the  interest  on  the  bonds,  notes  or  6 
certificates  of  indebtedness  issued  to  pay  for  the  plant,  an  amount  for  7 
depreciation  ec^ual  to  three  per  cent  of  the  cost  of  the  plant  exclusive  of  8 
land  and  any  water  power  appurtenant  thereto,  or  such  smaller  or  larger  9 
amount  as  the  department  may  approve,  the  requirements  of  the  sinking  10 
fund  or  debt  incurred  for  the  plant,  and  the  loss,  if  any,  in  the  operation  11 
of  the  plant  during  the  preceding  year,  and  of  the  cost,  as  defined  in  the  12 


Chap.  164.]     manufacture  and  sale  of  gas  and  electricity.  1819 

18  following  section,  of  the  gas  and  electricity  to  be  used  by  the  town.     The 

14  town  shall  include  in  its  annual  appropriations  and  in  the  tax  le\'y  not  less 

1 5  than  the  estimated  cost  of  the  gas  and  electricity  to  be  used  by  the  town 

16  as  above  defined  and  estimated.     By  cost  of  the  plant  is  intended  the 

17  total  amount  expended  on  the  plant  to  the  beginning  of  the  fiscal  year  for 

18  the  piupose  of  establishing,  purchasing,  extending  or  enlarging  the  same. 

19  By  loss  in  operation  is  intended  the  difference  between  the  actual  income 

20  from  private  consumers  plus  the  appropriations  for  maintenance  for  the 

21  preceding  fiscal  year  and  the  actual  expense  of  the  plant,  reckoned  as 

22  above,  for  that  year  in  case  such  expenses  exceeded  the  amount  of  such 
2.3  income  and  appropriation.     The  income  from  sales  and  the  money  ap- 

24  propriated  as  aforesaid  shall  be  used  to  pay  the  annual  ex-pense  of  the 

25  plant,  defined  as  abo\'e,  for  the  fiscal  year,  except  that  no  part  of  the  sum 

26  therein  included  for  depreciation  shall  be  used  for  any  other  purpose  than 

27  renewals  in  excess  of  ordinary  repairs,  extensions,  reconstruction,  enlarge- 

28  ments  and  additions.     The  siuplus,  if  any,  of  said  annual  allowances  for 

29  depreciation  after  making  the  above  payments  shall  be  kept  as  a  sepa- 

30  rate  fund  and  used  for  renewals  other  than  ordinary  repairs,  extensions, 

31  reconstruction,  enlargements  and  additions  in  succeeding  years;  and  no 

32  debt  shall  be  incurred  under  section  forty  for  any  extension,  reconstruction 

33  or  enlargements  of  the  plant  in  excess  of  the  amount  needed  therefor  in 

34  addition  to  the  amount  then  on  hand  in  said  depreciation  fimd.    Said 

35  depreciation  fund  shall  be  kept  and  managed  by  the  towTi  treasurer  as 

36  a  separate  fund,  subject  to  appropriation  by  the  city  comicil  or  select- 

37  men  or  municipal  light  board,  if  any,  for  the  foregoing  purpose.     So 

38  much  of  said  fund  as  the  department  may  from  time  to  time  approve 

39  may  also  be  used  to  pay  notes,  bonds  or  certificates  of  indebtedness 

40  issued  to  pay  for  the  cost  of  reconstruction  or  renewals  in  excess  of  or- 

41  dinary  repairs,  when  such  notes,  bonds  or  certificates  of  indebtedness 

42  become  due.     All  appropriations  for  the  plant  shall  be  either  for  the 

43  annual  expense  defined  as  above,  or  for  extensions,  reconstruction,  en- 

44  largements  or  additions;  and  no  appropriation  shall  be  used  for  any  pur- 

45  pose  other  than  that  stated  in  the  vote  making  the  same.     No  bonds, 

46  notes  or  certificates  of  indebtedness  shall  be  issued  by  a  town  for  the 

47  annual  expenses  as  defined  in  this  section. 

1  Section  58.     There  shall  be  a  fixed  price  for  gas  and  electricity,  which  Price  for  gas 

2  shall  not  be  changed  oftener  than  once  in  three  months.     Any  change  r^uiatcti"''''^ 

3  shall  take  effect  on  the  first  day  of  a  month,  and  shall  first  be  advertised  r^l!  3i%^-2^x 

4  in  a  newspaper,  if  any,  published  in  such  town.    The  price  shall  not,  |R'*i5''f99 

5  except  with  the  ■uTitten  consent  of  the  department,  be  fixed  at  less  than  i^is,  77,  §  '2. 

6  cost,  in  which  shall  be  included  all  operating  expenses,  interest  on  the  out- 

7  standing  debt,  the  recjuirements  of  the  serial  debt  or  the  sinking  fund  es- 

8  tablished  to  meet  such  bonds,  and  also  depreciation  of  the  plant  reckoned 

9  as  provided  in  the  preceding  section,  and  losses;  but  any  losses  exceeding 

10  three  per  cent  of  the  investment  in  the  plant  may  be  charged  in  different 

1 1  years  at  not  more  than  three  per  cent  per  annum.     Such  price  shall  not 

12  be  greater  than  shall  allow,  above  such  cost,  a  profit  of  eight  per  cent 

13  per  annum  to  the  town  upon  its  in\-estment.     The  gas  and  electricity 

14  used  by  the  town  shall  be  charged  to  it  at  cost.     A  sufficient  deposit  to 

15  secure  the  pajTnent  for  gas  or  electricity  for  three  months  may  be  re- 

16  quired  in  advance  from  any  consumer,  and  the  supply  may  be  shut  off 

17  from  any  premises  until  all  arrears  for  gas  or  electricity  furnished  thereon 


1820 


MANtTFACTtlRE   AND  SALE   OF  GAS   AND  ELECTRICITY.       [CiL'iP.    164. 


to  such  consumer  shall  have  been  paid.  After  three  months'  default  in  18 
the  payment  of  such  arrears,  all  appliances  for  distribution  belonging  to  19 
such  town  on  the  premises  may  be  removed  and  shall  not  be  restored  20 
except  on  payment  of  all  such  arrears  and  the  expenses  of  removal  and  21 
restoration.  22 


Prices  to  be 
certified  to 
department. 
1892,  259, 
§§3,4. 
R.  L.  34, 
§23. 


Section  59.    Wlien  a  town  fixes  or  changes  a  price,  the    manager  1 

of  municipal  lighting  shall  send  a  certified  copy  of  the  notice  thereof  to  2 

the  department  and  for  a  failure  so  to  do  shall  forfeit  not  more  than  3 

twenty-five  dollars.  im.  742,  §s  iie,  199.  4 


Compulsory 

supply. 

1891,  370,  §  7. 

1894,  533. 

R.  L.  34,  §  24. 

1914,  742, 

5§  117,  199. 


Section  60.  A  town  shall  not  be  compelled  to  furnish  gas  or  elec- 
tricity to  any  person  or  corporation  except  upon  order  of  the  depart- 
ment, to  whom  any  person  aggrieved  by  the  refusal  of  a  town  to  furnish 
gas  or  electricity  may  appeal,  stating  the  facts  in  such  detail  as  the 
department  directs. 


Assessment 
of  cost  of 
services,  etc. 
1891,  370,  §  6. 
R.  L.  34,  §  25. 
1914,  742, 
§1  118,  199. 


Section  61.    A  town  acquiring  a  plant  may  provide  by  ordinance  or  1 

by-law  for  the  equitable  assessment  upon  the  owner  or  occupant  of  any  2 

premises  of  the  cost,  or  any  part  thereof,  of  laying  and  maintaining  pipes,  3 

conduits,  conductors  or  other  appliances  thereon.      Payment  of  such  4 

assessments  shall  not  be  compulsory,  but  it  shall  be  a  condition  precedent  5 

to  the  supplying  of  gas  or  electricity  to  the  occupants  of  such  premises,  6 

and  may  be  required  before  providing  appliances  therefor.  7 


Ordinances 

and  by-laws 

relative 

to  plant. 

1891,  370, 

§11. 

R.  L.  34,  §  26. 


Section  62.    A  town  operating  a  plant  may  pass  ordinances  or  by-  1 

laws,  imposing  penalties  not  exceeding  fifty  dollars,  to  protect  the  plant,  2 

control  its  use  and  prevent  accidents  from  gas  or  electricity  supplied  by  3 

it,  and  to  govern  consumers  in  their  use  thereof.        i9i4,  742,  §§119, 199.  4 


Records  and 
return  to  de- 
partment. 
1891,  370,  §9. 
1S96,  35fi;  480. 
R.  L.  34,  §  27. 
1905,410,  §  5. 
1914,  742, 
|§  120,  199. 
1918,  78,  §  1. 


Section  63.  A  town  manufacturing  or  selling  gas  or  electricity  for  1 
lighting  shall  keep  records  of  its  work  and  doings  at  its  manufacturing  2 
station,  and  in  respect  to  its  distributing  plant,  as  may  be  required  by  3 
the  department.  It  shall  install  and  maintain  apparatus,  satisfactory  4 
to  the  department,  for  the  measurement  and  recording  of  the  output  of  5 
gas  and  electricity,  and  shall  sell  the  same  by  meter  to  private  consumers  6 
when  required  by  the  department,  and,  if  required  by  it,  shall  measure  7 
all  gas  or  electricity  consumed  by  the  town.  The  books,  accounts  and  8 
returns  shall  be  made  and  kept  in  a  form  prescribed  by  the  department,  9 
and  the  accounts  shall  be  closed  annually  on  the  last  day  of  the  fiscal  year  10 
of  such  town,  and  a  balance  sheet  of  that  date  shall  be  taken  therefrom  11 
and  included  in  the  return  to  the  department.  The  mayor,  selectmen  or  12 
municipal  light  board  and  manager  shall,  at  any  time,  on  request,  submit  13 
said  books  and  accounts  to  the  inspection  of  the  department  and  furnish  14 
any  statement  or  information  required  by  it  relative  to  the  condition,  15 
management  and  operation  of  said  business.  The  department  shall,  in  16 
its  annual  report,  describe  the  operation  of  the  several  municipal  plants  17 
with  such  detail  as  may  be  necessary  to  disclose  the  financial  condition  18 
and  results  of  each  plant;  and  shall  state  what  towns,  if  any,  operating  19 
a  plant  have  failed  to  comply  with  this  chapter,  and  what  towns,  if  any,  20 
are  selling  gas  or  electricity  with  the  approval  of  the  department  at  less  21 
than  cost.  The  mayor,  or  selectmen,  or  municipal  light  board,  if  any,  22 
shall  annually,  on  or  before  the  second  Wednesday  of  February,  make  23 


Chap.  164.]    manufactuke  and  sale  of  gas  and  electricity.  1821 

24  a  return  to  the  department,  for  the  preceding  fiscal  year,  signed  and 

25  sworn  to  by  the  mayor,  or  by  a  majority  of  the  selectmen  or  municipal 

26  light  board,  if  any,  and  by  the  manager,  stating  the  financial  condition 

27  of  said  business,  the  amount  of  authorized  and  existing  indebtedness,  a 

28  statement  of  income  and  expenses  in  such  detail  as  the  department  may 

29  require,  and  a  list  of  its  salaried  officers  and  the  salary  paid  to  each.     The 

30  mayor,  the  selectmen  or  the  municipal  light  board  may  direct  any  addi- 

31  tional  returns  to  be  made  at  such  time  and  in  such  detail  as  he  or  they 

32  may  order. 

1  Section  64.     A  town  owning  or  operating  a  gas  or  electric  plant  shall  ^I'fury  oV" 

2  be  Hable  for  any  injury'  or  damage  to  persons  or  property,  or  for  the  death  ff^i^l^  .  jg 

3  of  a  person  who  is  in  the  exercise  of  due  care,  caused  bv  its  maintenance  R  l'.  34, '§  28. 

.  .  '  *,  1914  742 

4  or  operation,  in  the  same  manner  and  to  the  same  extent  as  a  private  §§  121. 199. 

5  corporation,  but  shall  not  be  liable  for  damages  caused  by  competition  isS  iiass.'  214. 

6  with  an  existing  gas  or  electric  plant  therein.  212  Mass.  243. 

1  Section  65.     A  town  authorized  by  special  act  to  construct,  purchase.  Application 

2  lease,  establish  or  maintain  a  gas  or  electric  plant  shall  be  subject  to  this  to  plants'^ 

3  chapter,  so  far  as  the  same  may  be  applicable.  cEartered. 

1S92,  259.  §  5.  R.  L.  34.  §  29.  1905,  410,  |  6.  1914,  742,  §§  122,  199. 

1  Section  66.     This  chapter,   and  all  ordinances  or  by-laws  of   any  city  or  town 

2  town  acting  under  its  provisions  relati^•e  to  the  manufacture,  use  or  dis-  °^\^^t  to^°'" 

3  tribution  of  gas  or  electricity,  or  to  the  quality  thereof,  or  to  the  plant  f™*^"^^'  '''"^' 

4  or  the  appliances  therefor,  shall  apply  to  such  town,  so  far  as  applicable.  )^\^  "z^'k-^' 

1914,  742,  §§  123,  199.  212  Mass.  243.  1  Op.  A.  G.  550. 

1  Section  67.     No  town  having  within  its  limits  the  main  gas  works  or  Revocation 

2  the  central  electric  station,  or  the  major  portion  of  the  wires,  poles,  con-  ?estrict'ed°^ 

3  duits  or  pipes  used  in  connection  with  any  such  works  or  plant,  shall,  J^^l'  34°'§  3i*' 

4  except  for  a  violation  of  the  terms  or  conditions  upon  which  the  same  ssY-^/^igg 

5  were  granted  or  for  a  violation  of  law  respecting  the  exercise  thereof,  i6i  Riass.  432. 

6  revoke  any  rights  granted  to  any  person  or  corporation  engaged  in 

7  manufacturing  or  distributing  gas  or  electricity  for  sale  after  the  intro- 

8  duction  of  the  first  vote  authorizing  the  establishment  of  a  gas  or  elec- 

9  trie  plant  in  a  city  council  under  section  thirty-five  or  after  the  calling 

10  of  a  town  meeting  under  a  warrant  including  an  article  on  the  passage 

11  of  such  vote,  until  the  proceedings  so  begun  have  been  finally  deter- 

12  mined  by  granting  or  denying  authority  to  establish  such  plant.    After 

13  the  ratification  of  the  votes  required  by  section  thirty-five  and  the  pas- 

14  sage  of  both  votes  required  by  section  thirty-six,  no  town,  except  as  here- 

15  inbefore  provided,  shall  revoke  any  rights,  locations  or  licenses  granted 

16  to  any  such  person. 

1  Section  68.     A  town  which  has  acquired  a  municipal  lighting  plant  fmy",!?^''?*; 

2  shall  not  sell  it  for  the  purpose  of  abandoning  the  distribution  of  gas  or 

3  electricity  to  its  inhabitants  until  such  sale  has  been  authorized  in  the 

4  manner  and  by  the  votes  prescribed  for  the  acquisition  of  such  plants  by 

5  sections  thirty-five  and  thirty-six. 

1  Section  69.     The  supreme  judicial  court  for  the  county  where  the  town  Enforcement 

2  is  situated  shall  have  jurisdiction  on  petition  of  the  department  or  of  pro^^ons. 


1822 


M.'tNUFACTURE    AND   SALE    OF   GAS   AND   ELECTRICITY.      [ClL4.P.    164. 


1905.  410,  §  7. 
1914.  742. 
§§  125,  199. 


twenty  taxable  inhabitants  of  the  town  to  compel  the  fixing  of  prices  by  3 

the  town  in  compliance  with  sections  fifty-seven  and  fifty-eight,  to  pre-  4 

vent  any  town  from  purchasing,  operating  or  selling  a  gas  or  electric  5 

plant  in  violation  of  any  provision  of  this  chapter,  and  generally  to  enforce  6 

compliance  with  the  terms  and  provisions  thereof  relative  to  the  manu-  7 

facture  or  distribution  of  gas  or  electricity  by  a  town.  8 


Street  loca- 
tions for 
gas  mains. 
1855,  146,  §  2. 
G.  S.  61,  §  IB. 
1870,  224,  §  56; 
353.  §  2. 
1S79.  202,  §  1, 
last  clause. 
P.  S.  106,  §  75. 
1885.  240.  §  1. 
1896,  544,  §  1, 
R.  L.  110,  §  76. 
1914.  742. 
§§  126,  199. 
12  Allen,  75. 
188  Mass.  242. 


DISTRIBUTION  OF   GAS  AND   ELECTRICITY. 

Section  70.     A  gas  company  may,  with  the  written  consent  of  the  1 

aldermen  or  the  selectmen,  dig  up  and  open  the  ground  in  any  of  the  2 

streets,  lanes  and  highways  of  a  town,  so  far  as  necessary  to  accomplish  3 

the  objects  of  said  corporation;  but  such  consent  shall  not  affect  the  right  4 

or  remedy  to  recover  damages  for  an  injury  caused  to  persons  or  prop-  5 

erty  by  the  acts  of  such  corporation.     It  shall  put  all  such  streets,  6 

lanes  and  highways  in  as  good  repair  as  they  were  in  when  opened;  7 

and  upon  failure  so  to  do  within  a  reasonable  time,  shall  be  guilty  of  a  8 

nuisance.  220  Mass.  575.  2  Op.  a.  g.  416.  9 


of°iin'es"*'''°°  Section  71.     A  Corporation  subject  to  this  chapter  may,  as  provided     1 

G**!.' 64,' 1 2.'      ^n  chapter  one  hundred  and  sixty-six,  construct  lines  for  the  transmission     2 
p.  s.  109,  §  2.    of  electricitv.  i883, 221.  is89, 434.  1395. 350.  3 


R.  L.  121,  §  17; 
122,  §  1. 
1911.  509,  §  1. 
1914.742,  |§  127,199. 


97  Mass.  555. 
153  Mas.s.  200. 
184  Mass.  566. 
ISS  Mass.  250. 


207  Mass.  341. 
239  U.  S.  313. 

1  Op.  A.  G.  80,  88. 

2  Op.  A.  G.  416,  423. 


Taking  land 
for  transmis- 
sion lines. 
1914,  742, 
§128. 
1917,  141. 
1918.91. 
202  Mass.  402. 
226  Mass.  210. 


Section  72.  An  electric  company  may  petition  the  department  for  1 
authority  to  construct  and  use  or  to  continue  to  use  as  constructed  or  with  2 
altered  construction  a  line  for  the  transmission  of  electricity  for  distribu-  3 
tion  in  some  definite  area  or  for  supplying  electricity  to  itself  or  to  another  4 
electric  company  or  to  a  municipal  lighting  plant  for  distribution  and  5 
sale,  or  to  a  railroad,  street  railway  or  electric  railroad,  for  the  pur-  6 
pose  of  operating  it,  and  shall  represent  that  such  line  will  or  does  serve  7 
the  public  convenience  and  is  consistent  with  the  public  interest.  The  8 
company  shall  file  with  such  petition  a  general  description  of  such  trans-  9 
mission  line  and  a  map  or  plan  showing  the  towns  through  which  the  10 
line  will  or  does  pass  and  its  general  location.  The  company  shall  also  11 
furnish  an  estimate  showing  in  reasonable  detail  the  cost  of  the  line  and  12 
such  additional  maps  and  information  as  the  department  requires.  The  13 
department,  after  notice  and  a  public  hearing  in  one  or  more  of  the  14 
towns  affected,  may  determine  that  said  line  is  necessary  for  the  purpose  15 
alleged,  and  will  serve  the  public  convenience  and  is  consistent  with  the  16 
public  interest.  If  the  company  has  acquired  or  thereafter  shall  acquire  17 
rights  in  the  public  ways  or  lanes  of  the  towns  through  which  said  line  18 
will  or  does  pass,  or  over  private  lands  therein,  for  the  construction  of  19 
not  less  than  one  half  of  the  total  length  of  said  line  and  shall  file  with  20 
the  department  a  map  or  plan  of  the  transmission  line  sho\\ing  the  rights  21 
acquired,  and  the  towns  tlirough  which  it  will  or  does  pass,  the  public  22 
ways,  railroads,  railways,  navigable  streams  and  tide  waters  in  the  23 
town  named  in  said  petition  which  it  will  cross,  and  the  extent  to  which  24 
it  will  be  located  upon  private  land  or  upon,  under  or  along  public  ways  25 
and  places,  the  department,  after  such  notice  as  it  may  direct,  shall  give  26 
a  public  hearing  or  hearings  in  one  or  more  of  the  towns  through  which  27 


CiL\P.    164.]      AL-INUFACTURE   .\ND   SALE   OF   GAS   AND   ELECTRICITY.  1823 

28  the  line  passes  or  is  intended  to  pass  and  may  by  order  authorize  the 

29  company  to  take  by  eminent  domain  inider  chapter  seventy-nine  such 

30  lands,  not  exceeding  one  hundred  and  fifty  feet  in  width,  or  such  rights 

31  of  way  or  other  easements  therein  necessary  for  the  construction  and 

32  use  or  continued  use  as  constructed  or  with  altered  construction  of  the 

33  remainder  of  such  line  along  the  route  prescribed  in  the  order  of  the 

34  department;   provided,  that  notwithstanding  the  company  has  not  ac- 

35  quired  easements  for  such  purpose  in  one  half  of  the  total  length  of  said 

36  line,  yet  the  department  may  by  such  order  authorize  the  taking  of  any 

37  easements  in  private  lands  necessary  to  effect  only  the  alteration  of  con- 

38  struction  of  an  existing  line.    The  department  shall  transmit  a  certified 

39  copy  of  its  order  to  the  company  and  the  clerk  of  each  such  town.    The 

40  company  may  at  any  time  before  such  hearing  change  or  modify  the 

41  whole  or  a  part  of  the  route  of  said  line,  either  of  its  own  motion  or  at  the 

42  instance  of  the  department  or  otherwise,  and,  in  such  case,  shall  file  with 

43  the  department  maps,  plans  and  estimates  as  aforesaid  showing  such 

44  changes.     If  the  department  dismisses  the  petition  at  any  stage  in  said 

45  proceedings,  no  fm'ther  action  shall  be  taken  thereon,  but  the  company 

46  may  file  a  new  petition  after  the  expiration  of  a  year  from  such  dismissal. 

47  Wlien  a  taking  imder  this  section  is  effected,  the  company  may  forthwith 

48  proceed  to  erect,  maintain  and  operate  thereon  said  line.     If  the  company 

49  shall  not  enter  upon  and  construct  such  line  upon  the  land  so  taken  within 

50  one  year  thereafter,  its  right  under  such  taking  shall  cease  and  determine. 

1  Section  73.     An  electric  company  may  erect  and  maintain  wires  for  Construction 

2  a  transmission  line  across  or  over  the  location  on  private  land  of  any  rail-  sion  lines"^ 

3  road,  electric  railroad  or  street  railway  corporation  at  such  places,  in  such  gl'"  ""''■°'"^^' 

4  manner  and  on  such  terms  and  conditions  as  it  may  agree  upon  with  such  Pi.>g  "^^^^ 

5  corporation,  or,  in  case  of  failure  so  to  agree,  then  with  the  consent  of  the  wis.sso,  §  ii7. 

6  department  and  at  such  places,  in  such  manner,  with  such  safeguards, 

7  and  upon  such  terms  and  conditions  as  it  may  specify ;  but  no  pole,  tower 

8  or  similar  structm-e  shall  be  located  witliin  the  location  of  any  such  rail- 

9  road,  electric  railroad  or  street  railway  corporation  without  its  consent. 

10  The  department  may,  from  time  to  time,  specify  such  changes  in  the 

11  manner  of  crossing  and  in  the  terms  and  conditions  thereof  as  it  deems 

12  advisable. 

1  Section  74.     If  a  person  injured  in  his  person  or  property  by  a  defect  Damages  for 

2  in  a  public  way  caused  by  the  operations  of  a  corporation  subject  to  this  persons  or 

3  chapter,  in  laying  down  or  repairing  its  pipes,  or  in  laying,  erecting,  main-  i86ori2i. 

4  taining  or  repairing  its  Unes  of  wires,  or  in  otherwise  obstructing  such  May,  fssl,  sm.^'s^.' 

5  recovers  damages  therefor  in  an  action  against  the  town  where  such  r^^'l.  no,  1 77; 

6  injury  is  received,  such  town  shall,  if  said  corporation  is  liable  for  said  J|}iV42 

7  damages  and  has  had  reasonable  notice  to  appear  and  defend  the  original  §§  i3i.  'M- 

8  action,  recover  of  said  corporation  the  damages  so  recovered  from  it, 

9  with  the  taxable  costs  of  both  parties  in  such  original  action. 

1  Section  75.    The  aldermen  or  selectmen  may  regulate,  restrict  and  J^.,^f"J.ai'''°^ 

2  control  all  acts  and  doings  of  a  corporation  subject  to  tliis  chapter  wliich  j^'jj"!]^''^^  3 

3  may  in  any  manner  affect  the  health,  safety,  convenience  or  property  of  c;.  s.'  6i,§  n'. 

4  the  inliabitants  of  their  towns.  p.  s.  106,  §  77.  ,      ,       . 

1887,  385,  §  6.  R.  L.  110,  §  78;  121,  §  19.  1914,  742,  §§  132,  199. 


1824 


MANUFACTURE   AXD  S.VLE   OF   GAS   .\ND   ELECTRICITY.      [Ch.\P.    164. 


General  duties 
of  department. 
1885,  314.  §  S. 
1887,  382, 
5§  1.6;  385, 
§§  7.  10. 
R.  L.  121. 
§§  5,  20. 
1914.  742, 
§§  138,  199. 
1  Op.  A.  G.  81. 


STATE  SUPERVISION. 

Section  76-  The  department  shall  have  the  general  supervision  of 
all  gas  and  electric  companies  and  shall  make  all  necessary  examination 
and  inquiries  and  keep  itself  informed  as  to  the  condition  of  the  respective 
properties  OAvned  by  such  corporations  and  the  manner  in  which  they 
are  conducted  with  reference  to  the  safety  and  convenience  of  the  public, 
and  as  to  their  compliance  with  the  provisions  of  law  and  the  orders, 
directions  and  requirements  of  the  department. 


Annual  report 

to  general 

court. 

1SS5.  314.  §  14. 

18S6.  346.  §  2. 

1887,  382, 
«  2.  6. 

1888.  350.  5  2. 
R.  L.  121.  §  7. 
1911.  293. 
1914.  742. 

H  140,  199. 
1918,  78,  §  2. 


Section  77.  The  department  shall  make  an  annual  report  of  its 
doings  under  this  chapter,  with  such  suggestions  as  to  the  condition  of 
afl'airs  or  conduct  of  corporations  and  companies  subject  to  this  chapter 
as  may  be  appropriate,  \\ith  such  abstracts  of  the  returns  required  by 
section  eighty-three  as  it  deems  expedient,  but  including  the  names  and 
addresses  of  the  principal  officers  and  of  the  directors,  and  an  abstract  of 
the  accidents  reported  to  it  under  section  ninety-five. 


Violations 

of  law, 

1885.  314.  §  12. 

1887.  382, 

§§2.6. 

R.  L.  121,  I  8. 

1914.  742. 

§§  141.  199. 

197  Mass.  556. 


Section  78.  If  any  corporation  engaged  in  the  manufacture  and  sale 
or  distribution  and  sale  of  gas  or  electricity  violates  or  fails  to  comply 
with  the  provisions  of  law,  or  \-iolates  or  fails  to  comply  with  any  lawful 
order  of  the  department,  it  shall  give  WTitten  notice  thereof  to  such 
corporation  and  to  the  attorney  general.  i  Op.  a.  g.  si. 


Enforcement 
of  orders  of 
department. 
ISSS  314.  §  13. 
1887.  382,  J  2. 
1896,  426. 
R.  L.  121,  §9. 


Section  79.  The  supreme  judicial  or  superior  court  shall  have  juris- 
diction in  equity,  upon  application  of  the  department,  to  enforce  its 
lawful  orders  and  all  laws  relative  to  cities,  towns  or  corporations  engaged 
in  the  manufacture  and  sale  or  distribution  and  sale  of  gas  or  electricity. 

1914,  742,  §  I  142,  199.  197  Mass.  556. 


Office  of  com- 
pany where 
works  located. 
Department 
to  have  access 
to  records, 

1886.  346.  §  1. 

1887.  382, 
§§2.6. 

R.  L.  121,  §  28. 
1914,  742, 
§1  143,  199. 


Section  80.     Gas  and  electric  companies  shall  have  an  office  in  a  town  1 

where  their  works  are  located  and,  unless  otherwise  authorized  by  the  2 

department,  shall  keep  in  said  office  all  books  and  papers  required  by  3 

law  to  be  kept  within  the  commonwealth,  and  also  such  books  as  may  4 

be  required  to  show  their  receipts,  expenditures,  indebtedness  and  financial  5 

condition;  and  shall  at  all  times,  upon  application,  submit  their  books  to  6 

the  inspection  of  the  department  and  its  duly  authorized  employees.    The  7 

department  may  from  time  to  time,  by  its  members  or  its  didy  authorized  8 

employees,  examine  all  books,  records,  contracts,  documents,  papers  and  9 

memoranda  of  such  corporations,  and  shall  have  free  access  thereto  for  10 

such  purpose  at  any  and  all  reasonable  times.  11 


Form  of  books 
and  accounts 
prescribed. 
18S6,  346.  §  2. 
1887.  382, 
§§2,6. 

R.  L.  121,  §  29. 
1914,  742, 
§§  144,  199. 
1920,583,  §  1. 


Section  81.     Gas  and  electric  companies  or  persons  engaged  in  the  1 

manufacture  and  sale  or  distribution  of  gas  or  electricity  shall  keep  2 

their  books  and  accounts  in  a  form  to  be  prescribed  by  the  department,  3 

and  the  accounts  shall  be  closed  annually,  so  that  a  balance  sheet  can  be  4 

taken  therefrom.    INIanufacturing  companies  in  wliich  the  manufactiu-e  5 

of  gas  or  electricity  is  a  minor  portion  of  their  business  shall  be  re-  6 

quired  to  keep  accounts  of  the  expenses  and  income  of  their  gas  or  elec-  7 

trie  business  onlv.  8 


1 


ftatwniecords       Section  82.     Gas  and  electric  companies  and  manufacturing  com^ 
ISM ^356^480    Ponies  or  persons  engaged  in  the  manufacture  or  sale  of  gas  or  electricity    2 


Chap.  164.]    manufactuke  and  sale  of  gas  and  electricity.    .  1825 

3  shall  keep  such  records  of  their  work  at  their  manufacturing  station,  and  f^^-  i^J-  §  30- 

4  in  respect  to  their  distributing  plant,  and  in  such  form  as  the  department  §§  i-Js.  iss- 

5  may  from  time  to  time  require. 

1  Section  83.     Gas  and  electric  companies  and  manufacturing  com-  Form  of 

2  panics  and  persons  engaged  in  the  manufacture  and  sale  or  distribution  p?°scHbed."™' 

3  and  sale  of  gas  or  electricity  shall  annually,  on  or  before  such  date  as  isle,  sis!  1 2! 

4  the  department  fixes,  make  to  the  department,  in  a  form  prescribed  by  it,  J^^l'  121'  fli 

5  a  return  for  the  year  ending  on  such  date  as  the  department  may  from  }9°|'  |0f^-  ^  ^ 

6  time  to  time  require,  signed  and  sworn  to  by  the  president  and  treas-  J?!^'"*^.' 

7  urer  and  a  majority  of  the  directors,  of  the  amount  of  their  authorized  i92o.  s'ss.  §  2. 

8  capital,  their  indebtedness  and  financial  condition,  on  the  said  date,  their  2  Op.  a.  g.  8, 

9  income  and  expenses  during  the  preceding  year,  their  dividends  paid  ^^^' 

10  and  declared,  a  list  of  the  names  of  all  their  salaried  officers  and  the 

11  amount  of  the  salary  paid  to  each,  and  the  balance  sheet  of  their  ac- 

12  counts  as  of  said  date.    Such  companies  and  persons  shall  at  all  times, 

13  upon  request,  furnish  any  information  required  by  the  department  or 

14  its  duly  authorized  employees  relative  to  their  condition,  management 

15  and  operation,  and  shall  comply  Mith  all  lawful  orders  of  the  depart- 

16  ment;    but  manufactiuing  companies  in  which  the  manufacture  and 

17  sale  of  gas  or  electricity  is  a  minor  portion  of  their  business  shall  be 

18  required  to  include  in  their  annual  returns  the  income  and  expenses 

19  and  other  data  relative  to  their  gas  and  electric  business  only. 

1  Section  84.     Each  such  gas  or  electric  company  or  manufacturing  Penalty  for 

2  company  or  person  neglecting  to  make  the  annual  return  required  by  the  mLke^rturn. 

3  preceding  section  shall,  for  the  first  fifteen  days  or  portion  thereof  during  jsgf;  lei'  ^  ^' 

4  which  such  neglect  continues,  forfeit  five  dollars  a  day;   for  the  second  ^gj^' 249' ^ ^^' 

5  fifteen  days  or  any  portion  thereof,  ten  dollars  a  day;  and  for  each  day  5|^^;7^''fng 

6  thereafter  not  more  than  fifteen  dollars  a  day.     If  any  such  company 

7  or  person  unreasonably  refuses  or  neglects  to  make  such  return,  it  or  he 

8  shall,  in  addition  thereto,  forfeit  not  more  than  five  hundred  dollars. 

9  All  forfeitures  incurred  under  this  section  may  be  recovered  by  an  in- 

10  formation  in  equity  brought  in  the  supreme  judicial  court  by  the  at- 

11  torney  general,  at  the  relation  of  the  department,  and  when  so  recovered 

12  shall  be  paid  to  the  commonwealth. 

1  Section  85.     The  officers  and  employees  of  the  department  may  be  Department 

2  authorized  by  it  to  examine  the  books,  contracts,  records,  documents  and  books;^et"c",°of 

3  memoranda  or  the  physical  property  of  any  company  subject  to  this  ^g^i^^'e'sr!'?  2. 

4  chapter  and  shall  be  entitled  to  full  access  thereto.    No  such  officer  or 

5  employee  shall  di^'ulge  any  fact  or  information  coming  to  his  knowledge 

6  during  the  course  of  such  an  examination  unless  directed  by  the  depart- 

7  ment  or  by  the  court,  or  authorized  by  law. 

1  Section  86.     In  a  town  where  a  gas  company  exists  in  active  opera-  Entry  of  gas 

2  tion,  or  where  a  person  owns  or  operates  works  for  the  manufacture  resTnS. 

3  and  sale  of  gas,  no  other  gas  company,  nor  any  other  person,  shall  dig  }||b;  HI]  1 7°- 

4  up  and  open  the  streets,  lanes  and  highways  of  such  town  in  order  to  fgiV  742' ^  "^' 

5  lay  gas  pipes  therein,  without  the  consent  of  the  aldermen  or  selectmen,  §§  iss.  i99- 

6  granted  after  notice  by  publication  or  otherwise  to  all  parties  interested 

7  and  a  public  hearing. 


1826 


MANUFACTURE   AND   SALE   OF   GAS   AND   ELECTRICITY.       [Ch.AP.    164. 


Kntry  of 
electric  com- 
pany, etc.. 
restricted. 
1887,  382,  §  3. 
1892,  274, 
1895,  350. 
1901,  389. 
K.  L.  121,  §  26. 
1914,  742, 
|§  156,  199. 
157  Mass.  86. 
188  Mass.  250. 

Appeal. 
1885,314.  §  16. 
1887,  382,  §  5. 
R.  L.  121,  §  27. 
1914.  742, 
§§  157,  199. 
1  Op.  A.  G.  SO. 


Section  87.     In  a  town  where  a  person  is  engaged  in  the  manufacture  1 

or  sale  of  electricity,  no  other  person  shall  lay,  erect,  maintain  or  use,  2 

over  or  under  the  streets,  lanes  and  highways  of  such  town,  any  wires  3 

for  the  transmission  of  electricity  except  -nnres  used  by  street  railway  4 

companies  for  heat  or  power,  without  the  consent  of  the  aldermen  or  5 

selectmen  granted  after  notice  to  all  parties  interested  and  a  public  6 

hearing.                                              i  Op.  a.  g.  88.  7 

Section  88.    Any  person  aggrieved  by  the  decision  of  the  aldermen  1 

or  selectmen,  under  either  of  the  two  preceding  sections,  may,  within  2 

tliirty  days  after  notice  of  said  decision,  appeal  therefrom  to  the  de-  3 

partment,  which  shall  thereupon  give  due  notice  and  hear  all  parties  4 

interested,  and  its  decision  shall  be  final.  5 


S'clliii°Ug'h«ng  Section  89.  A  town  which  has  duly  acquired  a  municipal  lighting 
such'ent^"'"^  plant  and  is  authorized  to  supply  gas  or  electricity  in  any  other  town 
1914.742,         shall  have  all  the  rights  which  a  private  corporation  supplying  gas  or 

electricity  in  said  other  town  would  have  under  the  three  preceding 

sections. 


§  158. 


Restrictions 
upon  entry  for 
supplying 
electricity 
in  bulk. 
1908.  617.  §  1. 
1914.  742. 
§§  159,  199. 


Enforcement 
of  such 
restrictions. 
1908.  617,  §  3. 
1914,  742. 
|§  160,  199. 


Section  90.     In  consenting  to  the  laying,  erecting,  maintaining  or  1 

using  by  an  electric  company,  for  the  sole  purpose  of  supplj-ing  electricity  2 

in  bulk,  of  any  wires  for  the  transmission  of  electricity  over  or  under  3 

streets,  lanes  and  highways,  as  provided  in  section  eighty-seven,  the  4 

aldermen  or  selectmen  may,  in  addition  to  the  laws  governing  such  com-  5 

panics,  impose  such  other  terms  as  they  deem  public  interest  requires,  6 

and  upon  an  appeal  under  section  eighty-eight,  the  department  may,  in  7 

addition  to  its  authority  under  said  section,  affirm,  amend,  alter  or  add  8 

to  the  terms  so  imposed  as  it  deems  public  interest  requires.  9 

Section  91.     The  supreme  judicial  or  superior  court  shall  ha\-e  juris-  1 

diction  in  equity,  on  application  of  the  department  or  of  the  mayor  of  2 

any  city  or  the  selectmen  of  any  toi^Ti  where  electricity  is  distributed  3 

and  sold  under  the  preceding  section,  to  compel  the  observance  and  to  4 

restrain  the  violation  of  any  provision  thereof  and  of  the  general  laws  5 

relating  to  electric  companies  and  of  all  lawfid  orders,  decisions  and  terms  6 

made  or  imposed  by  the  department  or  by  the  aldermen  or  selectmen  7 

under  said  section.  8 


Supply  of  gas 
or  electricity 
enforced. 

1886,  346,  5  5. 

1887.  382, 
§§2.6. 

R.  L.  121,  §  33. 
1903,  164. 
1914,  742, 
§§  161,  199. 
197  Mass.  556. 


Section  92.     On  WTitten  petition  of  any  person,  having  a  residence  1 

or  place  of  business  in  a  town  where  a  corporation  is  engaged  in  the  2 

manufacture  or  sale  of  gas  or  electricity,  aggrieved  by  its  refusal  or  3 

neglect  to  supply  him  with  gas  or  electricity,  the  department  may,  after  4 

notice  to  the  corporation  to  appear  at  a  time  and  place  therein  named  5 

to  show  cause  why  the  prayer  of  such  petition  should  not  be  granted,  6 

issue  an  order  directing  and  requiring  it  to  supply  the  petitioner  with  7 

gas  or  electricity,  upon  such  terms  and   conditions  as  are  legal  and  8 

reasonable.  9 


Reduction  in 
price,  etc., 
enforced. 
1885,  314,  §  9. 

1887,  382, 
§§  2,  6. 

1888,  350,  §  1. 
1894,  327. 

R.  L.  121.  §  34. 
1914,  742, 
§§  162,199. 


Section  93.  On  ^Titten  complaint  of  the  mayor  of  a  city  or  the  select- 
men of  a  town  where  a  gas  or  electric  company  is  operated,  or  of  twenty 
customers  thereof,  either  as  to  the  quality  or  price  of  the  gas  or  electricity 
sold  and  delivered,  the  department  shall  notify  said  company  by  lea^^ng 
at  its  office  a  copy  of  such  complaint,  and  shall  thereupon,  after  notice, 
give  a  public  hearing  to  such  petitioner  and  said  company,  and  after  said 


Chap.  164.]      manufacture  and  sale  of  gas  .\nd  electricity.  1827 

7  hearing  may  order  any  reduction  in  the  price  of  gas  or  electricity  or  an  235  Mass.  is. 

8  improvement  in  the  quality  thereof,  and  a  report  of  such  proceedings  and  (1919)' 52. 

9  the  result  thereof  shall  be  included  in  the  report  required  by  section 

10  seventy-seven.    The  maximum  price  fixed  by  such  order  shall  not  there- 

1 1  after  be  increased  by  said  company  except  as  provided  in  the  following 

12  section. 

1  Section  94.     A  gas  company  furnishing  gas  under  general  or  special  ^r^™'°°,°! 

2  laws  or  any  contract  with  a  town,  and  a  gas  or  electric  company  en-  to  price  and 

3  gaged  in  the  sale  and  delivery  of  electricity,  may  apply  to  the  depart-  isss.  350.  §  1. 

4  ment  to  fix  and  determine  the  price  of  gas  or  electricity  to  be  thereafter  r.  l!  i2ii  §  35. 

5  sold  and  delivered  by  said  company,  or  to  re\'ise  any  former  order  or  if^^ea'i^fgg. 

6  action  of  the  department  relative  to  the  quality  or  price  thereof.     The  ^^^  ^^^^^-  ^^■ 

7  department  shall,  after  notice,  give  a  public  hearing  to  the  petitioner,  to 

8  the  town  and  to  all  other  persons  interested,  and  thereafter  may  pass 

9  such  orders  relative  to  the  price  and  quality  of  the  gas  or  electricity 

10  thereafter  to  be  furnished  by  said  company  as  it  deems  just  and  reason- 

1 1  able.     Such  orders  shall  be  binding  upon  all  parties  until  further  order 

12  of  the  department. 

1  Section  95.     Corporations,   persons  and  municipalities  engaged  in  Report  of 

2  the  manufacture  or  sale  of  gas  or  electricity  shall,  within  twenty-four  isss.^sso.  §  2. 

3  hours  after  every  accident  caused  by  gas  or  electricity  manufactured  or  ^^l]  ^If  §  39 

4  supplied  by  them,  whereby  an  employee  or  other  person  is  injured,  ren-  J?"e4'*fg9 

5  dered  insensible,  or  killed,  report  in  writing  to  the  department,  stating 

6  the  time,  place  and  circumstances  of  the  accident  and  such  other  facts 

7  relative  thereto  as  the  department  may  require.     The  chief  of  police  of 

8  the  town,  and  the  medical  examiner  of  the  district,  where  such  accident 

9  occiu-s  shall,  in  ^\Titing,  report  the  same  to  the  department.    The  chief 

10  of  police  shall  so  report  within  twenty-four  hours,  and  the  medical 

11  examiner  within  seven  days,  after  he  has  notice  thereof.    The  members 

12  of  the  department  shall  personally  investigate  all  such  cases  requiring 

13  investigation. 

1  Section  96.     A  gas  company  may  purchase  the  property  of  another  ConsoUdation 

2  gas  company  whose  gas  mains  are  in  the  same  or  contiguous  municipal-  uif  companies. 

3  ities,  or  may  consolidate  with  such  other  gas  company,  and  such  other  \l°f^  j^l'  ^  ^• 

4  gas  company  may  sell  and  convey  its  property  to,  or  may  consolidate  ^^  i*^^'  ^^^• 

5  with,  such  first  mentioned  gas  company;   and  an  electric  company  may 

6  piu-chase  the  property  of  another  electric  company  whose  lines  are  in 

7  the  same  or  contiguous  municipalities,  or  of  a  combined  gas  and  electric 
S  company  whose  gross  receipts  for  the  preceding  financial  year  from  the 
9  sale  of  electricity  are  at  least  three  times  its  gross  receipts  from  the  sale 

10  of  gas  and  whose  lines  are  in  the  same  or  contiguous  municipalities,  or 

1 1  may  consoHdate  with  such  other  electric  company  or  such  gas  company, 

12  and  such  other  electric  company  or  such  gas  company  may  sell  and  con- 

13  vey  its  property  to,  or  may  consolidate  with  such  first  mentioned  electric 

14  company;  but  no  such  purchase  and  sale  or  consohdation  shall  be  valid 

15  or  binding  until  the  terms  thereof  have  been  approved,  at  meetings  called 

16  therefor,  by  a  vote  of  at  least  two  thirds  in  interest  of  the  stockliolders 

17  of  each  of  the  contracting  companies,  and  until  the  department,  after 

18  notice  and  a  public  hearing,  has  determined  that  the  facilities  for  fm-nish- 

19  ing  and  distributing  gas  or  electricity  will  not  thereby  be  diminished  and 

20  that  such  purchase  and  sale  or  consolidation  and  the  terms  thereof  are 


1828 


MANUFACTURE   .^'D   SALE   OF   GAS   .VSD  ELECTRICITY.      [Ch.\P.    164. 


Consolidation 
of  electric  and 
hydro-electric 
companies. 
1914,  742, 
§  166. 
1919.  350. 
§§  52,  53. 


consistent  with  the  public  interest.  This  section  shall  not  authorize  an  21 
electric  company  engaged  in  suppKang  electricity  in  bulk  to  consolidate  22 
with,  or  to  piu-chase  the  property  of,  or  to  sell  its  own  property  to,  23 
another  electric  company  in  whose  territory  the  first  named  company  is  24 
engaged  in  supplying  electricity  in  bulk  to  private  customers.  25 

Section  97.  An  electric  company  may,  subject  to  the  four  following  1 
sections,  from  time  to  time  purchase  or  acquire  any  or  all  of  the  property  2 
of  any  domestic  or  foreign  corporation  or  association  owning  or  operating  3 
a  water  storage  reser\oir  or  hydro-electric  plant  with  which  the  lines  of  4 
the  said  first  mentioned  electric  company  are  actually  connected,  or  own-  5 
ing  and  operating  lines  for  the  transmission  of  electricity  within  or  with-  6 
out  the  commonwealth  with  which  the  lines  of  said  first  named  electric  7 
company  are  actually  connected ;  and  any  such  domestic  or  foreign  cor-  8 
poration  or  association  may,  subject  to  the  four  following  sections,  the  9 
charter  thereof  and  the  laws  of  the  state  under  which  such  corporation  10 
or  association,  if  a  foreign  corporation  or  association,  is  organized,  so  far  1 1 
as  applicable,  sell  any  or  all  of  its  property  to  said  first  mentioned  elec-  12 
trie  company,  or  consolidate  or  merge  with  said  first  mentioned  electric  13 
company,  or  merge  and  consolidate  its  capital  stock  and  property  with  14 
said  first  mentioned  electric  company;  but  no  such  purchase  and  sale  15 
or  merger  and  consolidation  shall  be  valid  or  binding  until  the  same  and  16 
the  terms  thereof  shall  have  been  approved,  at  meetings  called  therefor,  17 
by  vote  of  at  least  two  thirds  in  interest  of  the  stockholders  of  each  IS 
of  the  contracting  parties,  and  until  the  department,  after  notice  and  a  19 
public  hearing,  shall  have  approved  the  same  and  the  terms  thereof  as  con-  20 
sistent  with  the  public  interest;  proA-ided,  that  such  electric  company  21 
shall  not  exercise  in  this  commonwealth  any  powers,  rights,  locations,  22 
licenses  or  privileges  or  any  franchise  so  acquired  which  cannot  be  law-  23 
fully  exercised  by  electric  companies  under  this  chapter.  The  shares  of  24 
the  capital  stock  of  the  piu'chasing  or  consolidated  company  upon  which  25 
the  true  value  of  the  corporate  franchise  of  such  company  is  to  be  com-  26 
puted  in  any  year,  as  provided  in  section  fifty-five  of  chapter  sixty-three,  27 
shall  be  taken  as  such  number  of  all  the  shares  in  its  capital  stock  out-  28 
standing  on  April  first  of  such  year  as  is  proportional  to  the  value  of  its  29 
works,  structures,  real  estate,  machinery,  underground  conduits,  ^\-ires  30 
and  pipes  situated  ^sitliin  tliis  commonwealth.  From  the  true  value  of  the  31 
corporate  francliise  of  such  company  as  so  computed  there  shall  be  de-  32 
ducted  the  amount  and  market  value  of  all  stock  in  other  corporations  33 
held  by  it  upon  wliich  a  tax  has  been  paid  in  this  or  any  other  state  for  34 
the  twelve  months  last  preceding  the  date  of  the  return  referred  to  in  35 
said  section,  and  also  the  value  of  its  works,  structures,  real  estate,  ma-  36 
chinery,  poles,  undergroimd  conduits,  ^\-ires  and  pipes  subject  to  local  37 
taxation  within  tliis  commonwealth.  For  the  purposes  of  tliis  section,  the  38 
value  of  the  property  of  the  company  ^\•ithin  and  without  this  com-  39 
monwealth,  respectively,  shall  be  determined  from  time  to  time  by  the  40 
commissioner  of  corporations  and  taxation.  41 


Effect  of 
consolidation. 
1908,  529,  I  3. 
1914,  742, 
§§  167,  199. 


Section  98.  The  purchasing  or  consolidated  company  shall,  except 
as  provided  in  the  preceding  section,  have  and  enjoy  all  the  powers, 
rights,  locations,  licenses,  privileges  and  franchises,  and  be  subject  to  all 
the  duties,  liabilities  and  restrictions,  of  the  company  selling  or  merged 
as  aforesaid,  so  far  as  they  are  appUcable  to  the  purchasing  or  consolidated 
company. 


Chap.  164.]      manufacture  and  sale  of  gas  and  electricity.  1829 

1  Section  99.    The  purchasing  or  consolidated  company  may,  for  the  increase  of 

2  pm-poses  authorized  by  sections  ninety-six  and  ninety-seven,  increase  to'^ffect  °' 

3  its  capital  stock  and  issue  bonds  in  the  manner  and  subject  to  the  limita-  i90f;?392''°°' 

4  tions  provided  in  sections  thirteen,  fourteen,  eighteen  and  nineteen;  {gif;  fH;  ^  *' 

5  and  may,  for  the  same  purpose  and  subject  to  the  same  limitations  and  ^^  ^^^'  i^^- 

6  notwithstanding  any  special  law  applicable  thereto,  exchange  its  securi- 

7  ties  for  those  of  the  selling  or  merged  company  upon  such  terms  as  the 

8  department  approves;   but  the  aggregate  amount  of  the  capital  stock 

9  and  the  aggregate  amount  of  the  debt,  respectively,  of  the  consolidated 
10  companies  shall  not,  by  reason  of  such  consolidation,  be  increased. 

1  Section  100.     No  electric  company  shall  purchase  the  franchise  or  Consolidations 

2  property  of,  or  consolidate  with,  a  gas  company  except  as  provided  in  igo's^'slg,' §  5. 

3  section  ninety-six;   and  no  gas  company  shall  piu-chase  the  franchise  or  JIiL'tII; 

4  property  of,  or  consolidate  with,  an  electric  company  except  as  authorized  §5 1^^'  i^^- 

5  by  sections  twenty-six  and  ninety-six;  but  a  gas  company  authorized  to 

6  engage  in  the  business  of  generating  and  furnishing  electricity  under 

7  section  twenty-three  may,  with  the  approval  of  the  department,  and 

8  subject  to  the  tliree  preceding  sections,  so  far  as  they  may  be  applicable, 

9  sell  its  locations  and  the  property  used  in  its  business  of  generating  and 

10  furnishing  electricity  to  an  electric  company  whose  lines  are  in  the  same 

11  or  in  a  contiguous  municipality. 

1  Section  101.    All  applications  for  the  approval  by  the  department  Time  for  filing 

2  of  purchases  and  sales  or  consolidations  under  sections  twenty-six,  ninety-  for'consoiida- 

3  six,  ninety-seven  and  one  hundred  shall  be  filed  with  the  department  I'S'sie,  §2. 

4  within  four  months  after  the  passage  by  the  contracting  companies  of  §§^0/199. 

5  votes  authorizing  such  purchase  and  sale  or  consolidation. 

1  Section  102.     The  five  preceding  sections  shall  not  be  construed  to  Certain  con- 

2  authorize  the  consolidation  of  the  Boston  Consolidated  Gas  Company  prohibited. 

3  and  The  Edison  Electric  Illuminating  Company  of  Boston.  J|?f ■  fp'  ^  *'■ 

l§  171,  fgg. 

inspection  of  gas  and  meters. 

1  Section  103.     The  inspector  and  assistant  inspectors  of  gas  and  gas  Powers  and 

2  meters  appointed  under  section  thirteen  of  chapter  twenty-five,  subject  inspectors. 

3  to  rules  and  regulations  prescribed  by  the  department,  shall  make  the  jf^'s.^^' 

4  inspections  of  gas  required  by  section  one  hundred  and  nine  and  in-  p*f  •6^i^'§/5^' 

5  spect,  examine,  ascertain  and  prove  the  accuracy  of  all  meters  which  JOj^  ^^'^    ^^ 

6  are  to  be  used  for  measuring  illuminating  gas  and  which  are  to  be  R-  l!  ss,  ' 

7  fm^nished  to,  or  for  the  use  of,  any  consumer  or  company,  and  shall  1902.228, 

8  seal,  stamp  or  mark  e\ery  such  meter,  if  it  be  found  correct,  with  some  i909~4S3, 

9  suitable  de\ice  to  be  determined  by  the  department  and  recorded  in  1914,742, 

10  the  office  of  the  state  secretary.    A  meter  shall  not  be  stamped  correct  ^^  ^'^^'  ^^^■ 

11  if  it  varies  more  than  two  per  cent  from  the  standard  measiu-e.    The 

12  department  shall  keep  a  correct  record  of  all  meters  examined  by  said 

13  inspectors  witJi  their  proof  at  the  time  of  inspection,  which  shall  be  open 

14  at  all  times  for  examination  by  the  officers  of  any  gas  company  in  the 

15  commonwealth.     The  inspectors  shall  also  perform  such  other  duties 

16  and  make  such  reports  of  their  doings  as  the  department  may  require. 

1  Section  104.     For  examining,   comparing   and   testing  gas   meters.  Fees  for  testing 

2  with  or  without  stamping  them,  the  department  may  collect  a  fee  of  isei,  lus,  §4. 


1830 


M.\NUFACTUKE    AND    SALE    OF   GAS   -AN'D    ELECTRICITY.       [ChAP.    164. 


P.  S.  61,  §  6. 
1899,  465,  §  2. 
R.  L.  58.  §  5. 
1902.  228, 
§§  5,  8. 
1909,318; 
483,  §  7. 
1914.  742, 
§§  177.  199. 
1920,  242. 


twenty-five  cents  for  each  meter  delivering  not  more  than  a  cubic  foot  3 
of  gas  in  four  revolutions,  vibrations  or  complete  repetitions  of  its  action,  4 
and  for  each  meter  so  deli\ering  more  than  a  cubic  foot,  a  fee  of  thirty  5 
cents,  with  twenty  cents  added  for  every  additional  cubic  foot  so  deliv-  6 
ered.  For  examining,  comparing,  testing  or  calibrating  meter  provers  7 
and  test  or  photometer  meters,  with  or  without  sealing  or  certifying  to  8 
the  same,  the  department  may  collect  such  fees  as  it  may  from  time  to  9 
time  prescribe.  The  department  shall  designate  one  of  its  employees  10 
to  receive  all  fees  collected  under  this  section  and  section  one  hundred  11 
and  twenty,  and  he  shall  give  bond  to  the  state  treasurer  in  the  sum  of  12 
five  thousand  dollars.  13 


Companies 
to  pro\'ide 
photometer. 
1880,  230,  §  4. 
P.  S.  61,  §  13. 
1885,  240,  §  1. 
R.  L.  5.8.  §  13. 
1909,  483.  §  2. 
1914.  742. 
§§  180,  199. 


Section  105.  Every  gas  company  which  annually  manufactures  or 
sells  more  than  fifteen  million  cubic  feet  of  gas  shall,  when  required  by 
the  department,  provide  and  maintain  a  suitable  room  at  least  a  quarter 
of  a  mile  from  the  gas  works  with  a  disc  photometer  and  its  appurte- 
nances, of  a  construction  approved  by  the  department,  and  which  shall 
be  open  to  the  inspector  and  assistant  inspectors  on  every  working  day 
from  eight  o'clock  in  the  forenoon  until  six  o'clock  in  the  afternoon. 


Regulation 
of  quality 
of  gas. 

1885,314.  §11. 
R.  L.  121.  §  6. 
1914.  742. 
§§  139,  199. 
1918,  9,  §  2. 


Section  106.     The  department  shall,  from  time  to  time,  ascertain  the  1 

degree  of  purity  that  can  reasonably  be  required  in  gas  made  and  sup-  2 

plied  by  persons  engaged  in  the  manufacture  or  sale  of  gas,  and  shall  3 

report  to  the  general  court  when  it  deems  any  change  in  the  law  relative  4 

thereto  is  desirable,  and  may  from  time  to  time,  after  notice  and  a  pubhc  5 

hearing,  establish  rules  and  regulations  consistent  with  law,  governing  6 

the  quality  of  gas  supplied  by  persons  or  municipalities  subject  to  this  7 

chapter.    Such  rules  and  regulations  shall  be  enforced  in  the  manner  pro-  8 

vided  in  section  seventy-nine.  9 


Calorific 
standard 
for  gas. 
1916,  167,  §  1. 


Companies  to 
pro\-ide  calo- 
rimeter. 
1916,  167,  §  3. 


Inspection 
of  gas  by 
photometer. 
1861.  168,  §  10. 
1880,  230.  ^  5. 
P.  S.  61.  §  14. 
1885.240.  §  1. 
1886,  250. 
1892,  67. 
R.  L.  58.  §  14. 
1903.  464. 
1909,  483,  §  3. 
1912.  233. 
1914,  742, 
§§  181,  199. 

Penalty  for 
supplying  gas 
below  standard. 
1880,  230,  §  5. 


Section  107.     To  establish  a  calorific  standard  for  gas,  the  depart-  1 

ment  may  from  time  to  time,  after  notice  and  a  public  hearing,  determine  2 

how  many  British  thermal  units  shall  thereafter  be  required  of  gas  sup-  3 

plied  to  their  consumers  by  gas  companies  or  municipal  lighting  plants.  4 


Section  108.  Every  gas  company  or  municipal  lighting  plant  which 
distributes  and  sells  to  its  consumers  over  fifteen  million  cubic  feet  of 
gas  in  a  year  shall,  when  required  by  the  department,  provide  and  main- 
tain a  suitable  room  not  less  than  a  quarter  of  a  mile  from  the  gas  works 
with  a  calorimeter  of  a  type  and  construction  approved  by  the  depart- 
ment, which  shall  be  open  at  all  reasonable  times  to  the  inspector  and 
assistant  inspectors  of  gas. 

Section  109.  The  gas  of  every  company  which  supplies  more  than 
fifty  consumers  shall  be  inspected  at  least  twice  a  year  and  as  much 
oftener  as  the  department  may  determine.  The  department  may,  from 
time  to  time,  to  estabhsh  a  new  standard  of  purity  for  gas,  after  a  public 
hearing,  determine  how  many  grains  of  sulphur  and  ammonia  per  hun- 
dred cubic  feet  of  gas  may  be  permitted,  but  not  more  than  thirty  grains 
of  sulphur  per  hundred  cubic  feet  and  no  sulphuretted  hydrogen  shall  be 
allowed.  wis,  9,  §  i.  i  Op.  a.  g.  550. 

Section  110.     If  the  gas  of  any  gas  company  or  of  any  city  or  town     1 
supplying  gas  is  found  on  three  consecutive  inspections  or  on  three  in-     2 


Chap.  164.]     m.-vnufactuee  and  sale  of  gas  and  electricity.  1831 

3  spections  made  within  a  period  of  thirty  consecutive  days,  upon  such  p.  s.  oi.  §  u. 

4  averaging  of  inspections  as  the  department  may  prescribe,  to  be  below  Jsgo;  ll":  ^ '' 

5  the  standard  of  purity  fixed  under  the  preceding  section  or  the  calorific  J^^^l!  tl'.  §  u. 

6  standard  fixed  under  section  one  hundred  and  seven,  unless  such  defect  \^°^'  fH- , , 

7  IS  m  the  opmion  of  the  department  due  to  unavoidable  cause  or  acci-  1912. 233. 

8  dent,  such  company,  city  or  town  shall  be  liable  to  a  forfeitiu-e  of  one  §  isi. 

9  hundred  dollars,  which  may  be  recovered  by  an  information  in  equity  loisig,  §'1. 

10  brought  in  the  supreme  judicial  court  by  the  attorney  general,  at  the 

1 1  relation  of  the  department,  and  when  so  recovered  shall  be  paid  to  the 

12  commonwealth. 

1  Section  111.     The  unit  of  measure  for  the  sale  of  gas  by  meter  shall  ^r''e\oT ^t^^' 

2  be  the  cubic  foot,  containing  sixty-two  and  two  thousand  nine  hundred  p^'g'g'f^sl®- 

3  and  ninety-three  ten  thousandths  pounds  avoirdupois  weight  of  air-free  R-  l.  m.  §  s. 

4  distilled  water  at  sixty  degrees  FahrenJieit  when  weighed  in  dry  air  at  §§  is2. 199. 

5  the  same  temperature  and  at  a  barometric  pressure  of  thirty  inches  of        ■  ■     ■ 

6  mercury. 

1  Section  112.     Every  gas  company  with  a  capital  paid  in  of  one  hun-  companies, 

2  dred  thousand  dollars  or  more,  and  every  other  gas  company,  if  required  meter°prover3.* 

3  by  the  department,  and  all  makers  and  vendors  of  meters  shall  set  up  at  p*"'6\'^'*§  fo^' 

4  some  convenient  place  upon  their  premises  one  or  more  meter  pro  vers  fg^^  Its^i'i 

5  of  a  size  and  t.\-pe  approved,  tested  and  calibrated  by  the  department,  5?\*g3^*f^9 

6  by  means  of  which  meters  may  be  tested. 

1  Section  113.     A  gas  company  providing  a  meter  for  measuring  gas  Penalty  for 

2  supplied  to  a  customer  which,  if  never  before  used,  has  not  been  duly  not'tested^" 

3  sealed  and  stamped,  or,  if  opened  after  being  sealed  and  stamped,  has  isso!  230!  1 1'. 

4  not  been  again  tested,  sealed  and  stamped,  shall  be  punished  by  a  fine  r.l.ss.Vio. 

5  of  five  dollars  for  every  such  meter  in  use,  payable  to  the  city  or  town  I?^*g4''''f99 

6  where  the  meter  is  situated. 

1  Section  114.     Meters  in  use  shall  be  tested  by  the  inspector  or  by  Testing  gas 

2  one  of  his  assistants  or  by  a  deputy,  on  the  request  of  the  consumer  or  of  iseries.Ts- 

3  the  gas  company,  in  the  presence  of  the  consumer  if  desired,  and  with  r.  l.ss.Vii. 

4  sealed  apparatus.     If  he  finds  that  the  meter  is  correct,  the  person  request-  §§  Yss.^wq. 

5  ing  the  inspection  shall  pay  the  fees  for  such  inspection  and  the  expense  of 

6  removing  the  meter  for  the  piu-pose  of  being  tested,  and  the  reinspection 

7  shaO  be  stamped  on  the  meter.     If  he  finds  that  the  meter  is  incorrect, 

8  the  gas  company  shall  pay  such  expenses  and  shall  furnish  a  new  meter 

9  without  charge  to  the  consumer. 

1  Section  115.     Meters  for  measuring  gas  supplied  to  consumers  shall  ^|fgf2r'p!Sin°y 

2  register  the  quantity  of  gas  passing  tlirough  them  in  cubic  feet  so  that  Jf ^l  Is^'s^l' 

3  the  number  of  cubic  feet  of  gas  consumed  may  be  easily  ascertained  by  isi+i  V42, 

4  the  consumer  thereof.     No  meter  shall  be  used  which  may  confuse  or  2ioMkss.  498. 

5  deceive  the  consumer  in  ascertaining  the  price  he  pays  per  thousand  cubic 

6  feet  or  the  number  of  cubic  feet  consumed. 

1  Section  116.     An  officer  or  servant  of  a  gas  company  who  is  duly  Entry  on 

2  authorized  in  WTiting  by  the  president,  treasm-er,  agent  or  secretary  of  eSSin? 

3  said  company,  may  at  any  reasonable  time  enter  any  premises  supplied  i86'"i'68!'§  11. 

4  with  gas  by  such  company  for  the  piu-pose  of  examining  or  removing  the  ^  i',  ss,  Vis- 

5  meters,  pipes,  fittings  and  works  for  supplying  or  regulating  the  supply  ls^i*87^*f99 


1832  MANUFACTURE   .AND   SALE   OF   GAS   ,AND   ELECTRICITY.      [Ch.\P.    164. 

of  gas  and  of  ascertaining  the  quantity  of  gas  consumed  or  supplied ;  and  6 
if  any  person,  directly  or  indirectly,  prevents  or  hinders  such  officer  or  7 
servant  from  so  entering  such  premises  or  from  making  such  examination  8 
or  removal,  such  officer  or  servant  may  make  complaint  to  any  court  9 
or  magistrate  authorized  to  issue  criminal  process,  who  may  thereupon  10 
issue  a  warrant  directed  to  the  sheriff  or  to  any  of  his  deputies,  or  to  a  11 
constable  of  the  town  where  such  company  is  located,  commanding  him  12 
to  take  sufficient  aid  and  repair  to  said  premises  accompanied  by  such  13 
officer  or  servant,  who  shall  examine  such  meters,  pipes,  fittings  and  works  14 
for  supplying  or  regulating  the  supply  of  gas,  and  ascertain  the  quantity  15 
of  gas  consumed  or  supplied  therein,  and  shall,  if  required,  remove  any  16 
meters,  pipes,  fittings  and  works  belonging  to  said  company.  17 

Svin  me'ter" '"'      SECTION  117.     When  a  gas  or  electric  meter  in  a  building  owned  or  1 

iln'fis.         used  by  a  customer  of  a  gas  or  electric  company  is  read  by  an  employee  2 

§§Yss^^"'i9        °'"  ^g^nt  of  such  company,  he  shall,  upon  request,  deliver  to  the  person  3 

using  the  gas  or  electricity  measured  by  the  meter  a  WTitten  statement  of  4 

the  amount  recorded  by  the  meter  at  that  time.  5 

meterTto  SECTION  118.     Mctcrs  for  measuring  electricity  for  lighting  purposes  1 

"^lainf^  supplied  to  consumers  shall  register  the  quantity  of  electricity  passing  2 

1913. 623.  through  them  in  kilowatt  hours,  so  that  the  number  of  kilowatt  hours  3 

§§  189, 199.  consumed  may  easily  be  ascertained  by  the  consumer.  4 

i886"34^r'§'u.        Section  119.     No  charge  shall  be  made  by  a  corporation  furni.shing  1 

?9i3'254-^6%    electricity  for  lighting  purposes  or  gas  for  the  use  of  a  meter  during  any  2 

1914^742,         portion  of  twelve  consecutive  months,  if  the  consumer  during  that  time  3 

199.    '      '       uses  electricity  to  the  value  of  nine  dollars,  or  gas  to  the  value  of  seven  4 

dollars,  and  whoever  makes  a  charge  therefor  contrary  to  this  section  5 

shall  be  punished  by  a  fine  not  exceeding  one  hundred  dollars.  6 

mtterTin  use""  SECTION  120.  A  customer  of  a  Corporation  subject  to  this  chapter,  or  1 
R°Li^i'l3u  such  corporation,  may  apply  to  the  department  for  an  examination  and  2 
i-jii.  348!  test  of  any  electric  meter,  demand  indicator,  so  called,  and  any  other  3 
i9i4!742!^  device  or  appliance  installed  by  such  corporation  upon  a  customer's  4 
premises  and  used  by  such  corporation  to  determine  the  charge  to  the  5 
customer  for  its  service.  The  department  shall  forthwith  cause  such  6 
examination  and  test  as  in  its  judgment  is  practicable  and  reasonable  to  7 
be  made  by  a  competent  and  disinterested  person,  and  shall  furnish  8 
to  the  corporation  and  to  the  customer  a  certificate  of  the  result  and  9 
expense  thereof.  If,  upon  such  examination  and  test,  it  appears  that  10 
the  appliance  does  not  register  correctly,  the  department  may  order  the  1 1 
corporation  to  correct  or  remove  such  meter,  demand  indicator  or  other  12 
device  or  appliance  and  to  substitute  a  correct  meter,  demand  indicator  13 
or  other  device  or  appliance  therefor.  All  fees  for  examinations  and  14 
tests  shall  in  the  first  instance  be  paid  by  the  person  or  corporation  15 
making  application  therefor;  but  if  the  examination  or  test  is  made  at  the  16 
request  of  a  customer,  and  the  meter  is  found  to  be  incorrect  because  too  17 
fast,  the  corporation  shall  pay  such  fees  to  the  department,  to  be  repaid  18 
by  it  to  the  applicant.  A  meter  shall  be  deemed  correct  for  the  purposes  19 
of  this  section  if  it  appears  from  such  examination  or  test  that  it  does  20 
not  vary  more  than  five  per  cent  from  the  standard  appro\'ed  by  the  21 
department.  This  section  shall  not  authorize  or  prohibit  differential  22 
prices  for  electricity  supplied  by  any  such  company.  23 


190,  199. 


Chap.  164.]     manufacture  and  sale  of  g.as  and  electricity.  1833 

1  Section  121.    The  person  designated  to  make  such  examination  and  gfec'tric'metere 

2  test  may  at  any  reasonable  time  enter  upon  the  premises  where  the  expense  and 

3  meter  to  be  inspected  is  placed  for  the  purpose  of  making  the  inspection,  thereof.  ^ 

4  He  shall  receiye  such  compensation  for  his  services  as  the  department  §§2.'3. '" 

5  may  determine,  together  with  his  necessary  trayeling  and  other   ex-  1914;  742! 

6  penses,  which  shall  be  audited  by  the  department  and  paid  by  the  com-  ^^  ^^^'  ^°^- 

7  monwealth;   but  the  total  amount  of  compensation  and  expenses  shall 

8  not  exceed  three  thousand  dollars  in  any  year;  and  if  the  total  amount 

9  of  such  compensation  and  expenses  shall  in  any  year  exceed  the  amount 

10  of  the  fees  received  for  such  examinations  and  tests,  the  excess  shall  be 

11  assessed  and  recovered  from  the  electric  companies  in  the  manner  now 

12  provided  for  the  assessment  and  recovery  of  the  other  expenses  of 

13  the  department.    The  department  may  establish  such  rules  and  regula- 

14  tions,  fix  such  standards,  prescribe  such  fees,  and  employ  such  means  and 

15  methods  in,  and  in  connection  with,  such  examinations  and  tests  of 

16  electric  meters  as  it  deems  most  practicable,  expedient  and  economical. 

17  The  department  may  piu-chase  such  materials,  apparatus  and  stand- 

18  ard  measiu-ing  instruments  for  such  examinations  and  tests  as  it  deems 

19  necessary. 


1  Section  122.     Whoever,   being  engaged   in  the   sale  of  electricity,  penalty  for  use 

2  maintains  upon  the  premises  of  a  customer  for  the  purpose  of  determining  eiectric'^meter, 

3  the  charge  to  be  made  for  electricity  supplied  to  him  a  meter,  demand  jg'^j2  437  5  2. 

4  indicator  or  other  mechanical  device  or  appliance  which  is  found  upon  If'i^gJ^fgg 

5  examination  and  test,  as  pro\aded  in  section  one  hundred  and  twenty, 

6  to  register  incorrectly  as  against  such  customer,  shall  refund  to  him  such 

7  an  amount  as,  if  not  agreed  upon,  shall,  upon  application  of  the  customer 

8  and  after  opportunity  given  to  the  vendor  to  be  heard,  be  determined  by 

9  the  department. 

1  Section  123.     All  gas  and  electric  companies  using  prepayment  meters  use  of  pre- 

2  shall  be  responsible  for  the  loss  by  fire  of  any  money  deposited  in  said  metere" 

3  meters.  1911, 434.  1914, 742,  §§  193, 199.  reguJat   . 

1  Section  124.    A  gas  or  electric  company  may  stop  gas  or  electricity  Gas  or  eiec- 

2  from  entering  the  premises  of  any  person  failing  to  pay  the  amount  due  shut'off'^w^hen. 

3  therefor  or  for  the  use  of  the  meter  or  other  article  hired  by  liim  from  p^'s.'ei'.Vie.^' 

4  such  company;  and,  for  such  purpose,  the  officers,  servants  or  workmen  jf^L'ss'^'s  16. 

5  thereof  may,  after  twenty-four  hours'  notice,  enter  his  premises  between  i?\*^/*f^9 

6  the  hours  of  eight  in  the  forenoon  and  four  in  the  afternoon  and  separate  199  Mass.  324. 

7  and  take  away  such  meter  or  other  property  of  the  companj',  and  may 

8  disconnect  any  meter,  pipe,  ^\-ires,  fittings  or  other  works,  whether  they 

9  are  property  of  the  company  or  not,  from  its  mains,  pipes  or  wires. 

1  Section  125.    A  gas  or  electric  company  shall  not  refuse  to  supply  Refusal  of 

2  gas  or  electricity  for  any  building  or  premises  to  a  person  applying  sfncted'^'^ 

3  therefor  who  is  not  in  arrears  to  it  for  any  gas  or  electricity  previously  r®®l;  ||^§  17. 

4  supplied  to  him,  because  a  bill  for  gas  or  electricity  remains  unpaid  by  jl^gj^'gg 

5  a  previous  occupant  of  such  building  or  premises.  i99  ^i^^^-  ^-*- 

1  Section  126.     Whoever  wilfully  or  fraudulently  injures,  disconnects.  Penalty  for 

2  removes  or  otherwise  interferes  with,  or  suffers  to  be  injured,  discon-  metS^,  e'tc^"' 

3  nected,   removed  or  otherwise  interfered  with,   any  meter,   pipes  or  If^s/u.' 

4  fittings  belonging  to  a  gas  company,  or  prevents  a  meter  from  duly  ?s^7^Vs 


1834 


WATER   .USTD   AQUEDUCT   COMP,«^IES. 


[ClL\P.    165. 


R.  L.  58,  § 
1914,  742, 
§§  196,  199. 
4  Allen,  308. 


IS. 


Penalty  for 
injury  to  elec- 
tric meter,  etc. 
1895,  330. 
R.  L.  121,  §40. 
1908,  243. 
1914,  742, 
§§  197,  199. 


registering  the  quantity  of  gas  supplied  through  the  same,  or  in  any  5 

way  hinders  or  interferes  with  its  proper  action  or  just  registration,  or  6 

fraudulently  burns  or  wastes  the  gas  of  such  company,  or  whoever  7 

attaches  a  pipe  or  any  appliance  to  a  main  or  pipe  belonging  to  a  gas  8 

company  or,  without  the  written  consent  of  such  company,  uses  or  9 

causes  to  be  used  any  gas  supplied  by  it,  unless  the  same  passes  through  10 

a  meter  set  by  the  company,  shall  be  punished  by  a  fine  of  not  more  11 

than  one  hundred  dollars  or  by  imprisonment  for  not  more  than  one  12 

year,  or  both.  13 

Section  127.     Whoever  unlawfully  and  intentionally  injures  or  de-  1 

stroys,  or  suffers  to  be  injured  or  destroyed,  any  meter,  pipe,  conduit,  2 

wire,  line,  pole,  lamp  or  other  apparatus  belonging  to  a  corporation  3 

engaged  in  the  manufacture  or  sale  of  electricity,  or  unlawfully  and  4 

intentionally   prevents   an   electric   meter   from   duly   registering   the  5 

quantity  of  electricity  supplied,  or  in  any  way  interferes  with  its  proper  6 

action  or  just  registration,  or,  without  the  consent  of  such  corporation,  7 

unlawfully  and  intentionally  diverts  any  electric  current  from  any  wire  8 

of  such  corporation,  or  otherwise  unlawfully  and  intentionally  uses  9 

or  causes  to  be  used,  without  the  consent  of  such  corporation,  any  10 

electricity  manufactured  or  distributed  by  it  shall  be  punished  by  a  11 

fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  not  12 

more  than  one  year,  or  both.  13 


REFERENCES. 

As  to  voluntary  associations  holding  stock  in  or  under  the  same  management  as 
gas  and  electric  light  companies,  Chap.  182. 

For  power  of  gas  and  electric  companies  to  issue  preferred  stock,  Chap.  155,  §  18. 
General  provisions  applicable  to  all  corporations,  Chap.  155. 
No  shares  to  be  issued  for  less  than  par  value.  Chap.  155,  §  17. 


CHAPTER    165. 


WATER  AND   AQUEDUCT   COMPANIES. 


Sect. 

water  companies. 

1.  Definitions. 

2.  Water    companies    subject    to  certain 

sections  of  other  chapters. 

3.  Certain  powers  of  department  of  public 

health  not  affected. 

4.  Supervision. 

5.  Taking  by  city  or  town  of  water  works. 

6.  Department  of  public  health  to  furnish 

assistance. 

7.  Annual  report. 

8.  Streets  not  to  be  opened  without  con- 

sent of  municipal  authorities. 

9.  Appeal  to  department. 

10.  Testing  of  water  meters. 

11.  Injury  of  water  meters  and  unlawful 

use  of  water. 

AQUEDUCT    COMPANIES. 

12.  Laws  applicable. 

13.  Certificate  of  pajinent  of  capital  stock. 


Sect. 

14.  PajTuent  of  capital  by  conveyance  of 

property. 

15.  Meetings  and  records  of  certain  com- 

panies. 

16.  Shares  to  be  entered  in  books. 

17.  Directors. 

18.  Assessments. 

19.  Real  estate. 

20.  Corporation  may  dig  up  highways,  etc. 

21.  Liability  of  corporators  after  dissolu- 

tion. 

22.  Indi\-idual  liability  of  shareholders. 

23.  Upon  dissolution,  real  estate  to  be  in 

common. 

24.  Penalty  for  injuring  aqueducts. 

25.  Towns  to  have  use  of  water  in  case  of 

fires. 
Provisions    by    selectmen    for    taking 

water. 
Recovery  of  damages. 


26 


27, 


Chap.  165.]  water  comp.vnies.  ,  1835 


WATER    COMPANIES. 

1  Section  1.     In  sections  one  to  eleven,  inclusive,  the  following  words  Definitions. 

2  shall  have  the  following  meanings:  1919; sfo.' §Vi7. 

3  "Corporation"  or  "company",  every  person,  partnership,  associa- 

4  tion  or  corporation,  other  than  a  municipal  corporation,  engaged  in  the 

5  distribution  and  sale  of  water  in  the  commonwealth  and  occupying  the 

6  public  streets  with  its  mains  and  pipes  therefor. 

7  "Department",  the  department  of  public  utilities. 


iames  gub- 
ect  to  certain 


1  Section  2.     Chapter  one  hundred  and  fifty-eight  and  sections  ten,  water 

2  eleven,  twelve,  thirteen,  fourteen,  sixteen,  seA'cnteen,  eighteen,  nineteen,  P 

3  twenty-one,  seventy-eight,  se\-enty-nine,  eighty,  eighty-one,  eighty-two,  o^he°?hrpters 

4  eighty-three,  eighty-foiu-,  ninety-two,  ninety-three,  ninety-four,  ninety-  Jq??'^!?- 

5  six,  ninety-eight,  ninety-nine,  one  hundred  and  one,  one  hmidred  and  §§  s,'  12. ' 

6  twenty  and  one  hundred  and  twenty-one  of  chapter  one  hundred  and  1920!  295';  oss. 

7  sixty-four  shall  include  and  apply  to  all  such  corporations  and  companies. 

1  Section  3.     This  chapter  shall  not  affect  or  impair  the  powers  and  ^^^'^/"of 

2  duties  of  the  department  of  public  health  with  respect  to  water  supply  department 

3  under  chapter  one  hundred  and  eleven.  i9i4.  vs-.  §  12.  health  not 


affected. 


1  Section  4.     The  department  shall  have  general  supervision  of  all  fgfl^^j""!  j 

2  corporations  and  companies  subject  to  this  chapter,  and  shall  make  all  1919!  350,' 

3  necessary  examinations  and  inquiries  and  keep  itself  informed  as  to  the 

4  compliance  by  all  such  corporations  and  companies  with  the  law. 

1  Section  5.     In  all  proceedings  for  the  acquisition  by  a  town  of  the  Taking  by 

2  water  works  and  other  property  of  a  water  company  created  by  special  o/wat'er°"° 

3  law  in  the  commonwealth  providing  for  the  appointment  of  commis-  r9T7ri66,  §  2. 

4  sioners  for  the  determination  of  the  price  to  be  paid  for  such  water  l^nf.^^"' 

5  works  and  property,  the  matters  to  be  referred  to,  heard  and  determined 

6  by,  such  commissioners  shall  be  referred  to,  heard  and  determined  by, 

7  the  department,  and  its  determination  and  award  shall  have  the  same 

8  force  and  effect  as  if  the  determination  and  award  had  been  made  by 

9  the  commissioners  provided  for  in  the  charters  of  such  companies. 

1  Section  6.     In  all  proceedings  conducted  by  the  department  under  Department 

2  the  laws  relating  to  the  petition  of  any  water  company  for  authorization  Liith  to 

3  to  issue  capital  stock  or  bonds,  and  in  all  matters  connected  with  the  ^fstance. 

4  determination  by  the  department  of  any  question  relating  thereto  and  ]g}?'  |f°'  ^  ^• 

5  before  any  such  authorization  is  given,  the  department  of  public  health  ||j2. 3._^ 

6  shall,  on  request  of  tlie  department,  furnish  without  charge  engineering  §  n?- 

7  services  and  advice  for  its  assistance  and  guidance  in  such  proceedings. 

1  Section  7.     The  department  shall  make  an  annual  report  of  all  its  Annual  report. 

2  doings  under  this  chapter,  together  with  such  suggestions  as  to  the  1919!  350,' 

3  condition  of  affairs  or  conduct  of  the  corporations  and  companies  as 

4  may  be  appropriate  and  with  such  abstracts  of  the  returns  required  by 

5  section  two  as  it  deems  expedient. 

1  Section  8.     In  a  town  where  a  water  company  exists  in  active  opera-  streets  not  to 

2  tion,  no  other  company  or  person  shall  dig  up  and  open  the  streets,  lanes  ^th^ut"' 


1836 


WATER  COMPANIES. 


[Chap.  165. 


consent  of 
municipal 
authorities. 
1914,  787,  §  9. 


and  highways  of  such  town  for  the  purpose  of  laying  water  mains  and  3 

pipes  therein  without  the  consent  of  the  aldermen  or  selectmen  after  4 

notice,  by  publication  or  otherwise,  to  all  parties  interested  and  a  public  5 

hearing.  6 


Appeal  to 
department. 
1914,  787.  §  10. 
1919,  350. 
§§  117,  121. 


Section  9.     Any  corporation,  company  or  person  aggrieved  by  the  1 

decision  of  the  aldermen  or  selectmen  under  the  preceding  section  may,  2 

within  thirty  days  after  notice  of  said  decision,  appeal  therefrom  to  the  3 

department  which  shall  thereupon  give  due  notice  to  and  hear  all  parties  4 

interested,  and  render  decision  thereon.  5 


Testing  of 
water  meters. 
1914,  397. 


Section  10.  Any  person  using  water  supplied  by  a  city,  town,  1 
district  or  company,  measured  by  a  meter,  shall  be  entitled  to  an  exam-  2 
ination  and  test  of  such  meter  to  determine  the  accuracy  of  the  same  in  3 
any  quarter  or  period,  upon  written  application  therefor,  which  shall  be  4 
made  before  the  expiration  of  the  time  when  the  rate  for  such  quarter  or  5 
period  is  required  to  be  paid,  to  the  board,  commissioner  or  officer  in  G 
charge  of  the  water  works  of  the  city,  town  or  district,  if  the  water  is  7 
supplied  by  a  city,  town  or  district,  or  to  the  company,  if  the  water  is  8 
supplied  by  a  company.  Such  examination  and  test  shall  be  made  by  a  9 
competent  person  employed  by  the  city,  town  or  district,  if  the  water  10 
is  supplied  by  a  city,  town  or  district,  or  by  a  competent  person  des-  11 
ignated  by  the  mayor  of  the  city  or  the  selectmen  of  the  town  where  12 
the  water  is  supplied,  if  it  is  supplied  by  a  company.  A  written  report  13 
of  the  result  of  the  examination  and  test  shall  be  furnished  to  the  person  14 
making  the  application,  and  if  it  appears  that  the  meter  has  registered  15 
with  substantial  accuracy,  the  expense  of  the  examination  and  test  shall  16 
be  paid  by  the  person  applying  therefor,  and  in  no  case  shall  the  expense  17 
so  required  to  be  paid  exceed  three  dollars  for  each  examination  and  IS 
test,  but  if  it  appears  that  the  meter  has  not  registered  with  substantial  19 
accuracy  and  that  the  person  has  been  charged  with,  or  has  paid  for,  20 
more  water  than  he  should  have  been  charged  M'ith  or  should  have  paid  21 
for,  the  amount  of  such  excess  shall  forthwith  be  credited  to  such  person  22 
or  remitted  to  him  if  he  has  paid  the  same,  and  the  expen.se  of  the  exam-  23 
ination  and  test  shall  be  borne  by  the  city,  town,  district  or  company  24 
supplying  the  water;  if,  however,  it  appears  that  the  person  has  been  25 
charged  with,  or  has  paid  for  less  water  than  he  should  have  been  charged  26 
with  or  should  have  paid  for,  he  shall  forthwith  be  charged  with  the  27 
proper  additional  amount  and  shall  pay  the  same,  together  with  the  28 
expense  of  the  examination  and  test,  to  the  city,  town,  district  or  com-  29 
pany  supplying  the  water.  30 


Injury  of 
water  meters 
and  unlawful 
use  of  water. 
1914,  284. 


Section  11.  Whoever  unlawfully  and  intentionally  injures,  or  suffers  1 
to  be  injured,  a  water  meter  belonging  to  a  city,  town,  district,  or  com-  2 
panj'  engaged  in  supplying  water,  or  prevents  such  meter  from  duly  3 
registering  the  quantity  of  water  supplied  through  it,  or  hinders  or  in-  4 
terfers  with  its  proper  action  or  just  registration,  or  attaches  a  pipe  to  a  5 
main  or  pipe  belonging  to  a  city,  town,  district  or  water  company,  or  6 
otherwise  uses  or  causes  to  be  used  the  water  supplied  by  a  city,  town,  7 
district  or  company  without  the  consent  of  the  same,  unless  it  passes  8 
through  a  meter  set  by  such  city,  town,  district  or  company,  shall  be  9 
punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  10 
ment  for  not  more  than  one  year,  or  both.  1 1 


Chap.  165.]  aqueduct  companies.  1837 


AQUEDUCT   COMPANIES. 

1  Section  12.     Aqueduct  companies  shall,  except  as  otherwise  herein  LawsappU- 

2  provided,  be  subject  to  chapter  one  hundred  and  fifty-eight  and  also  to  rtl'^'iog, 

3  sections  four  to  ten,  inclusive,  of  chapter  one  hundred  and  sixty-six  except  ll.fs,  30, 3i'; 

4  that  all  rights  and  duties  imposed  on  the  department  by  sections  four  Jgjg^lgg  ^^• 

5  and  five  of  said  chapter  one  hundred  and  sixty-six  shall  in  the  case  of  §§  si,  117. 

6  aqueduct  companies  be  exercised  by  the  commissioner  of  corporations 

7  and  taxation. 

1  Section  13.     Immediately  after  the  payment  of  the  capital  of  an  Certificate  of 

2  aqueduct  company,  as  authorized  by  the  commissioner  of  corporations  capiTau'tock. 

3  and  taxation,  a  certificate,  signed  and  sworn  to  by  its  president,  treas-  r^^l!  10°!  I22. 

4  urer  and  a  majority  of  its  directors,  stating  the  fact  of  such  payment,  l^^^-  ^^°' 

5  the  manner  in  which  the  capital  has  been  paid  in  and  has  been  invested 

6  or  voted  to  be  invested,  and  approved  by  said  commissioner,  shall  be 

7  filed  in  the  office  of  the  state  secretary. 

1  Section  14.     A  conveyance  to  an  aqueduct  company  of  real  or  per-  Payment  of 

2  sonal  property  at  a  fair  valuation  shall  be  a  sufficient  payment  of  the  cmveyaifce 

3  capital  stock  to  the  extent  of  such  value,  if  a  description  of  such  property  Js94,°38a^§  2. 

4  and  a  statement  of  the  value  at  which  it  has  been  taken  in  payment,  in  f^^- 1^- 

5  such  detail  as  the  commissioner  of  corporations  and  taxation  shall  require  §  52. 

6  or  approve,  is  included  in  the  certificate  mentioned  in  the  preceding 

7  section,  and  a  statement  that  he  is  satisfied  that  such  valuation  is  fair 

8  and  reasonable  is  endorsed  by  him  upon  such  certificate. 


23. 


1  Section  15.     The  proprietors  of  an  aqueduct  corporation,  which  has  Meetings  and 

2  been  organized  under  chapter  one  hundred  and  ten  of  the  Public  Statutes  certain  com- 

3  or  corresponding  provisions  of  earlier  laws,  may  at  a  legal  meeting  agree  1798*;^,  1 3. 

4  upon  the  method  of  calling  future  meetings  of  the  corporation,  and  may  §;  f;  g?;  1 1; 

5  choose  a  clerk,  who  shall  be  sworn  and  who  shall  record  in  books  to  be  ^-  ^  ^23  Wi 

6  provided  and  kept  by  him  for  that  purpose  all  by-laws,  votes  and  other 

7  proceedings  of  the  corporation.    Such  books  shall  at  all  times  be  subject 

8  to  the  inspection  of.  any  person  appointed  for  that  purpose  by  the  gen- 

9  eral  court. 

1  Section  16.     The  clerk,  at  or  immediately  after  the  first  meeting,  shares  to  be 

2  shall  enter  in  the  books  the  names  of  the  several  proprietors  and  the  books. 

3  shares  owned  by  each.  1798,  S9,  §§  6,  s. 

R.  S.  40,  §  4.  G.  S.  65,  §  4.  P.  S.  110,  §  4.  R.  L.  123,  §  42. 

1  Section  17.     The  proprietors  may  choose  any  number  of  directors  Directors. 

2  and  other  officers  to  manage  the  business;  and  the  directors  shall  choose  r.  s.'40,' §  6.' 

3  one  of  their  number  to  be  the  president  of  the  corporation.  p.  |.  u6,\*5. 

R.  L.  123,  §  43. 

1  Section  18.    The  directors  may  make  such  assessments  on  each  Assessments. 

2  share  as  they  find  necessary;   and,  upon  the  default  of  a  proprietor  for  r'.  s.'40,'§7.' 

3  thirty  days  after  notice  thereof  to  pay  an  assessment,  they  may  sell  by  p.f.'no.Ve. 

4  public  auction  so  many  of  his  shares  as  will  be  sufficient  to  pay  the  ^-  ^-  '"'^'  ^  **• 

5  assessment  and  the  necessary  charges,  such  sale  being  first  advertised 

6  three  weeks  successively  in  a  newspaper  published  in  the  county,  or 


1838 


AQUEDUCT   COMP.UvIES. 


[Chap.  165. 


notices  thereof  being  posted  thirty  days  at  least  before  the  sale  in  public  7 

places  in  the  to\\Ti.     The  surplus  proceeds  arising  from  the  sale  shall  8 

be  paid  to  the  owner  of  the  shares  sold.  9 

i7M,M^?6.         Section  19.     Such  corporation  may  purchase  and  hold  real  estate  1 

G.  s.  6°;  I  i:      necessary  for  the  purpose  of  its  association  not  exceeding  thirty  thousand  2 

p.  s.  110.  §  9.     dollars  in  value.  r.  l.  123,  §  45.  3 


Corporation 
may  dig  up 
highwavs.  etc. 
1798.  59.  §  7. 
H.  S.  40.  §  9. 
G.  S,  65.  §  9. 
P.  S.  110.  §  10. 
R.  L.  123.  §  46. 
11  Gray,  154. 


Section  20.     Such  corporation  may,  with  the  •nTitten  consent  of  the  1 

aldermen  of  a  city  or  the  selectmen  of  a  town,  dig  up  and  open  any  2 

street  or  way  therein  for  the  purpose  of  placing  such  pipes  as  are  neces-  3 

sary  in  constructing  its  aqueduct  or  in  repairing  or  extending  the  same,  4 

if  the  same  is  so  done  as  not  to  prevent  the  convenient  passing  of  teams  5 

and  vehicles.  6 


Liability  of 
corporators 
after  dissolu- 
tion. 

1798.  59.  §  9. 
R.  S.  40.  5  10. 
G.  S.  65.  I  10. 
P.  S.  110.§  11. 
R.  L.  123.  §  47 


Section  21.     Contracts  made  by  or  with  such  a  corporation  shall  1 

remain  in  force  after  its  dissolution,  and  the  shareholders  at  such  dissolu-  2 

tion  shall  continue  liable  and  capable  as  a  corporation  in  all  its  suits  rela-  3 

tive  to  such  contracts  until  they  are  performed,  if  suit  is  commenced  4 

within  six  years  after  the  dissolution  or  after  the  right  of  action  accrued.  5 


Individual 
liability  of 
shareholders. 
1798.  59.  §  9. 
R.  S.  40.  §  11. 
G.  S.  65.  §  11. 
P.  S.  110.  §  12. 
R.  L.  123.  §  48. 


Upon  dissolu- 
tion, real 
estate  to  be 
in  common. 
1798.  59.  5  9. 
R.  S.  40.  I  12. 
G.  S.  65.  I  12. 


Section  22.     If  no  corporate  property  can  be  found  to  satisfy  a  1 

judgment  recovered  against  the  shareholders  after  the  dissolution,  and  2 

it  is  not  satisfied  within  sLx  months  after  it  is  recovered,  the  judgment  3 

creditor  may  satisfy  the  same  out  of  the  private  estate  of  the  share-  4 

holders  or  any  of  them,  as  if  the  judgment  had  been  against  them  in  5 

their  private  capacity.  6 

Section  23.     If  the  corporation  at  its  dissolution  is  seized  of  real  1 

estate,   the   proprietors   shall  become  tenants  in   common  thereof  in  2 

proportion  to  their  respective  shares  or  interests  in  the  stock  of  the  3 

corporation.                       p.  s.  no,  §i3.                       r,  l.  123,  §49.  4 


Penalty  for 
injuring 
aqueducts. 
1798.  59.  I  10. 
R.  S.  40.  §  14. 
G.  S.  65.  §  13. 
P.  S.  110,  §  14. 


Section  24.  WTioever  maliciously  injures  an  aqueduct  or  any  of  its 
appurtenances  shall  forfeit  not  more  than  one  hundred  dollars  to  the 
use  of  the  town  where  the  offence  is  committed,  and  shall  be  liable  to 
the  corporation  for  treble  the  amount  of  damages  sustained  thereby. 

R.  L.  123,  §  50. 


usT'of^water^       Section  25.     A  town  in  wliich  such  aqueduct  is  situated  may  put 
m  rase  of  conductors  into  the  pipes  for  the  purpose  of  drawing  therefrom,  free  of 

R^^l.'lo.'l  15.'    expense,  as  much  water  as  is  necessary  if  a  building  is  on  fire  therein  and 
§1  ?,^A^s^*-    such  conductors  are  so  secured  that  water  shall  not  be  drawn  therefrom 

r.  a.  110.  8  lo.  pi  p  •  *    i   •  n 

R.  L.  123,  §  51.  except  for  the  purpose  of  extingmshmg  fires.  144  Mass.  177. 

seleMmen^for         SECTION  26.     If  the  Selectmen  consider  it  necessary,  for  the  protection 

ile^^isa""^'     of  persons  and  property  in  their  town  against  fire,  to  take  water  from 

§§i'6^i7'  ^^^  conductors  or  pipes  therein  of  an  aqueduct  corporation,  they  may 

R-  L.  123,  §52.  dii'ect  the  engineers  of  the  fire  department  to  request  the  corporation  to 

put  into  such  conductors  or  pipes,  in  such  places  as  said  engineers  shall 

tliink  necessary,  connections  or  conductors  for  the  purpose  of  attacliing 

hydrants  or  conducting  water  into  reservoirs.    If  the  corporation  refuses 

or  neglects  for  two  weeks  after  such  request  to  comply  therewith,  said 

engineers  may  make  such  connections  at  the  cost  of  the  town,  using  all 


Chap.  166.]  telephone  and  telegraph  companies,  etc. 


1839 


10  necessary  means  for  making  the  same  and  using  reasonable  care  for  the 

11  protection  of  the  pipes  and  works  of  such  corporation. 

1  Section  27.     Any  person  who  has  sustained  injury  in  his  land  or  by  Recovery  ot 

2  the  diversion  of  water  by  the  operations  of  an  aqueduct  corporation,  1851,2^9. 

3  and  who  is  entitled  to  damages  for  such  injm-y  by  the  act  establishing  g  s.  e's, 

4  such  corporation  or  otherwise,  may  recover  such  damages  under  chapter  |.^  g^iJo,' 

5  seventy-nine.  r.  l.  123,  §53.  16  Gray,  347.  §§i8, 19. 

REFERENCE. 
General  provisions  applicable  to  all  corporations,  Chap.  155. 


CHAPTER    166. 

TELEPHONE   AND   TELEGRAPH   COMPANIES,   AND   LINES   FOR   THE 
TRANSMISSION  OF  ELECTRICITY. 


Sect. 

finances  of  telephone  and  telegraph 
companies. 

1.  Certain  proportion  of  capital  stock  to  be 

subscribed,  etc.,  before  constructing 
line.     Filing  of  statement. 

2.  Limit  of  debt. 

3.  Liability  of  officers. 

4.  Issue  of  stock  and  bonds. 

5.  Enforcement  of  preceding  section. 

6.  Penalty  for  violation  of  section  4,  etc. 

7.  New  shares  to  be  offered  to  stockholders 

upon  increase  of  capital  stock. 

8.  Stock  to  be  sold  at  auction,  when. 

9.  Stock    or    scrip    dividends    forbidden, 

when. 

10.  Liability  of  directors. 

RETURNS. 

11.  Returns    of    telephone    and    telegraph 

companies. 

12.  Penalty   for   failure    to   make    annual 

return. 

TELEPHONE    COMPANIES. 

13.  Service  to  telegraph  companies  without 

discrimination. 

14.  Telephone  service  without  discrimina- 

tion. 

15.  Enforcement. 

TELEGRAPH   COMPANIES. 

16.  Duties  of  companies. 

17.  Charges    for    despatches    received    by 

mail,  etc. 

18.  Penalty  for  violation  of  two  preceding 

sections. 

19.  Liability  for  negligence  in  transmission 

of  telegraphic  messages. 

20.  Telegrams  to  contain  time  of  filing,  etc. 

Penalty. 


Sect. 

construction  of  lines  for  transmitting 
electricity. 

21.  Construction  of  lines. 

22.  Location,  etc.,  by  aldermen  or  selectmen. 

23.  Establishment  of  telegraph   and   tele- 

phone lines  by  citizens. 

24.  Transmission  of  electricity  for  private 

use. 

25.  Regulation  of  wires  in  or  under  public 

ways. 

26.  Proceedings  if  regulations  are  violated. 

27.  Approval  of  ordinance  or  regulation. 

28.  Approval  of  location  by  department. 

DAMAGES. 

29.  Damages  caused  by  erection  of  lines. 

Costs. 

POLES   AND   WIRES. 

30.  Regulations  concerning  wires  in  cities 

and  towns. 

31.  Names  of  owners  to  be  attached. 

32.  Inspector  of  wires;  duties. 

33.  Enforcement. 

34.  Insulation  of  poles.     Penalty. 

35.  Penalty  for    affixing    telephone  wires, 

etc.,  to  property  without  permission. 

36.  Name  of  corporation  on  pole  or  struc- 

ture.    Penalty. 

37.  No  easement  obtained  by  poles,  etc. 

38.  Injury  to  lines,  wires,  etc.     Penalties. 

39.  W'ires  may  be  cut,  when. 

40.  Penalty    for    cutting     wires     without 

notice. 

41.  Limitation  of  two  preceding  sections. 

42.  Liability  of  telegraph  company  for  in- 

jury from  poles,  etc. 

GENERAL    PROVISIONS. 

43.  Application  of  chapter  to  others  than 

corporations. 


1840 


TELEPHONE  AND  TELEGRAPH  COMPANIES. 


[Chap.  166. 


Certain  pro- 
portion of 
capital  stock 
to  be  sub- 
scribed, etc., 
before  con- 
Btmcting  line. 
Filing  of 
statement. 
1851,  247,  §  3. 
G.  S.  64,  §  7, 


FIN.\NCES   OF  TELEPHONE  AJSTD  TELEGRAPH   COMP.\NIES. 

Section  1.     A  telegraph  or  telephone  company  shall  not  commence  1 

the  construction  of  its  line  until  three  fourths  of  its  capital  stock  have  2 

been  unconditionally  subscribed  for,  and  at  least  one  half  has  been  paid  3 

in  in  cash;   and  the  directors  shall,  within  ten  days  after  commencing  4 

construction,  file  in  the  office  of  the  state  secretary  a  sworn  statement  5 

of  such  subscription  and  payment.  6 


p.  S.  109,  §  7. 


1893,  274. 


R.  L.  122,  §  6. 


i85i''247'^M'  Section  2.  Such  company  shall  not  at  any  time  contract  or  owe  1 
p  I' 109^8  d^bts  to  a  larger  amount  than  one  half  of  its  capital  stock  actually  2 
R.  L.  122,  §  7.    paid  in.  3 


Section  3.     The  president  and  treasurer  of  such  company  shall  be     1 


Liability  of 
officers. 

i*\MPi56.  iointlv  and  severally  liable  for  all  its  indebtedness,  in  case  of  wilful    2 

tj.  ft.  o4,  §  9.  •'              ^                         ....                                              1*1                                 •    • 

P. s.  109, §9.  neglect  or  omission  on  their  part  to  comply  with  any  provision  of  sec-    3 

R.  L.  122,  §  8.  .                                            .                                                                                                                                                   , 

tion  one,  two  or  eleven.  4 


Issue  of  stock 
and  bonds. 
1875,  161. 
P.  S.  110,  §  7. 
1894.  450,  §  1 ; 
452,  §1; 
462,  §  1. 
1897,337.  §  1. 
R.  L.  109,  §24. 
1913.  784,  §  3. 

1918,  54. 

1919,  350, 
§117. 

214  Mass.  529. 
216  Mass.  432. 
233  Mass.  503. 
1  Op.  A.  G.  659. 


Section  4.  Such  company  shall  issue  only  such  amount  of  stock 
and  bonds  as  the  department  of  public  utilities  may  from  time  to  time 
determine  is  reasonably  necessary  for  the  purpose  for  which  such  issue 
of  stock  or  bonds  has  been  authorized.  Said  department  shall  on  an 
application  for  such  issue,  within  thirty  days  after  the  final  hearing 
thereon,  render  a  written  decision  assigning  the  reasons  therefor,  and, 
if  authorizing  such  issue,  specifying  the  respective  amounts  of  stock 
or  bonds  authorized  for  the  respective  purposes  to  which  the  proceeds 
thereof  are  to  be  applied.  The  decision  shall,  within  seven  days  after 
it  has  been  rendered,  be  filed  in  the  office  of  the  department  and  a  cer- 
tificate of  said  decision  shall,  within  three  days  after  rendition  and 
before  the  stock  or  bonds  as  aforesaid  are  issued,  be  filed  in  the  office 
of  the  state  secretary,  and  a  duphcate  thereof  delivered  to  the  corpora-  13 
tion  which  shall  enter  the  same  upon  its  records.  Such  corporation  14 
shall  not  apply  the  proceeds  of  such  stock  or  bonds  as  aforesaid  to  any  15 
purpose  not  specified  in  such  certificate.  16 


1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 


Enforcement 
of  preceding 
section. 
1894,  450,  §  3; 
452,  §  3; 
462,  I  3. 
1896,  473. 
R.  L.  109.  §  27. 
1913,  7S4,  §  3. 


Section  5.  The  supreme  judicial  or  superior  court  shall  have  juris- 
diction in  equity,  upon  the  application  of  the  department,  attorney 
general,  any  stockliolder  or  interested  party,  to  enforce  the  preceding 
section  and  all  lawful  orders  and  decisions,  conditions  or  requirements 
of  said  department  in  pursuance  thereof.         wis,  54.         i9i9, 350,  §  117. 


^Xtion  of           Section  6.     A  director,  treasurer  or  other  oSicer  or  agent  of  any  1 

isM^^lit'^'-    ^"^'^  company  who  knowingly  votes  to  authorize  the  issue  of,  or  know-  2 

*^;'li'           "igly  signs,  certifies  or  issues,  stock  or  bonds  contrary  to  section  four,  3 

R.  L.  109,  §  28.   or  who  knowlugly  votes  to  authorize  the  application,  or  knowingly  applies  4 

the  proceeds,  of  such  stock  or  bonds  contrary  to  said  section,  or  who  5 

knowingly  votes  to  assume  or  incur,  or  knowingly  assumes  or  incurs  6 

in  the  name  or  behalf  of  such  corporation,  any  debt  or  liability  except  7 

for  the  legitimate  purposes  of  the  corporation  shall  be  punished  by  a  8 

fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  for  not  9 

more  than  one  year,  or  both.  10 


Chap.  10(3.]  telephone  .\kd  telegraph  companies.  1841 

1  Section  7.     If  any  such  company  increases  its  capital  stock,  such  New  shares  to 

2  new  shares  necessary  to  produce  the  amount  of  increased  capital  stock  sto?khofders 

3  authorized  shall,  except  as  proA'ided  in  the  follo^^■ing  section,  be  offered  oFrapUar^*^ 

4  proportionately  to  its  stockholders  at  not  less  than  the  market  value  i8°7oii79. 

5  thereof  at  the  time  of  increase,  to  be  determined  by  the  department  of  Jfli'SS^il'- 

•  •■  »•         •  •  1       ^    It  1/11  io/Oi  oy,  8  1 , 

G  public  utilities,  taking  into  account  previous  sales  of  stock  of  the  cor-  3o.5 
7  poration  and  other  pertinent  conditions,  which  determination  shall  be  is79,'9o!§i! 
S  in  writing  and  with  the  date  thereof  shall  be  certified  to  and  recorded  ii2,| ss- 
9  in  the  books  of  the  corporation.    The  directors,  upon  the  approval  of  Jsgs,  315,  §  1. 

10  such  increase  as  provided  in  section  foiu-  and  the  determination  of  the  r*^l.' lol;  1 30. 

11  market  value  as  hereinbefore  provided,  shall  cause  WTitten  notice  of  }g}9'f|5 

12  such  increase  to  be  given  to  each  stockholder  who  was  such  at  the  date  |  yj-,      .„„ 

.  '^  .  ,  PI-  1  216  Mass.  432. 

13  01  the  vote  to  increase,  stating  the  amount  or  such  increase,  the  number 

14  of  shares  or  fractions  of  shares  to  which  he,  according  to  the  propor- 

15  tionate  number  of  his  shares  at  the  date  of  such  vote,  is  entitled,  the 

16  price  at  which  he  is  entitled  to  take  them,  and  fixing  a  time,  not  less 

17  than  fifteen  days  after  the  date  of  such  determination,  within  which  he 

18  may  subscribe  for  such  additional  stock.    Each  stockholder  may,  within 

19  the  time  limited,  subscribe  for  his  portion  of  such  stock,  which  shall  be 

20  paid  for  in  cash  before  the  issue  of  a  certificate  therefor. 

1  Section  S.     If  such  increase  does  not  exceed  four  per  cent  of  the  stock  to  be 

2  existing  capital  stock  of  the  corporation,  the  directors,  without  first  when!*  ''"'^"°°' 

3  offering  the  same  to  the  stockliolders,  may  sell  them  by  auction  to  the  JfyJ;  393;  §  2. 

4  highest  bidder  at  not  less  than  the  par  value  thereof  to  be  actually  paid  ggP'la^s  ^  ^' 

5  in  cash,  and  shall  so  sell  any  shares  which  remain  unsubscribed  for  by  jpt' IpiV^' 

6  the  stockliolders  entitled  to  take  them  after  the  expiration  of  the  time  1879]  90! 

7  limited  in  the  notice  required  by  the  preceding  section.     Such  shares  112,  §  59- 

8  shall  be  offered  for  sale  in  Boston  or  such  other  city  or  town  as  the  1893, 3\s,  §  2. 

9  department  of  public  utilities  directs;  and  notice  of  the  time  and  place  lft:2.''' 

10  of  such  sale  shall  be  published  at  least  five  times  during  the  ten  days  fgig  350^^'' 

11  immediately  preceding  the  sale  in  each  of  at  least  three  daily  news-  5 117. 

12  papers  approved  by  said  department.         113  Mass.  79.  216  Mass.  432. 

1  Section  9.     Xo  such  company  established  under  the  laws  of  this  com-  stock  or  scrip 

2  monwealth  shall  declare  any  stock  or  scrip  dividend  or  divide  the  pro-  hidden,  when. 

3  ceeds  of  the  sale  of  stock  or  scrip  among  its  stockholders;  nor  shall  any  i87i!3S9! 

4  such  company  issue  any  share  of  stock  to  any  person  unless  the  par  value  ["ni.^^^" 

5  of  the  shares  so  issued  is  first  paid  in  cash  to  its  treasurer.  fil  s^ei'  ^  '*' 

1894,  350,  §  1.  R.  L.  109,  |  20.  214  Mass.  529. 

1  Section  10.     All  certificates  of  stock  or  scrip  issued  in  violation  of  the  Liability  of 

2  preceding  section  shall  be  void;  and  the  directors  of  the  corporation  which  ism  3id,  §  2. 

3  issues  them  shall  be  liable  to  a  penalty  of  one  thousand  dollars  each,  to  ni'ji'ei'.    ^^' 

4  be  recovered  by  indictment  in  any  county  where  any  of  them  reside;  but  j^^^l;  109,'  fli. 

5  if  any  such  director  proves  that,  before  such  issue,  he  filed  his  written 

6  dissent  thereto  with  the  clerk,  or  was  absent  and  at  no  time  voted  there- 

7  for,  he  shall  not  be  so  liable. 

returns. 

1  Section  11.     Every  telephone  or  telegraph  company  doing  business  Returns  of 

2  in  the  commonwealth  shall  annually,  on  or  before  Alarch  thirty-first  or  telegraph  "^ 

3  such  subsequent  date  as  the  department  of  public  utilities,  for  good  cause  issi^mTi  s. 

4  shown  in  any  case,  may  fix,  file  with  said  department  a  report  of  its  doings  \lll]  4°;  |  J; 


1842 


TELEPHONE    AXD    TELEGRAPH    COMPANIES. 


[Chap.  UiG. 


G.  S.  G4,  § 
p.  S.  109 
R.  L.  122, 
1906,  433, 
12. 

1917,  122, 

1918,  54. 

1919,  350, 
§  117. 


12. 

§24. 
§§S. 

§1. 


for  the  year  ending  December  thirty-first  preceding,  which  report  shall  5 
be  in  such  detail  as  the  department  prescribes,  and  shall  be  called  the  6 
"Annual  Return."  Such  return  shall  be  sworn  to  by  the  treasurer  and  7 
by  the  chief  accounting  officer  of  such  company,  and  shall  include  a  state-  8 
ment  of  its  business,  receipts  and  expenditures  within  the  commonwealth  9 
during  the  year,  its  dividends  paid  out  and  declared,  the  amount  of  its  10 
authorized  capital  and  its  indebtedness  and  financial  condition.  The  11 
word  "company"  in  this  and  the  following  section  shall  include  every  12 
person,  partnership,  association  and  corporation  engaged  in  the  business  1.3 
of  the  transmission  of  intelligence  by  electricity.  1-1 


Penalty  for 
failure  to 
make  annual 
return. 
1906,  433,  §  9. 


Section  12.     Any  such  company  neglecting  to  make  the  annual  return  1 

required  by  the  preceding  section  shall,  for  the  first  fifteen  days  or  por-  2 

tion  thereof  during  which  such  neglect  continues,  forfeit  five  dollars  a  3 

day;  for  the  second  fifteen  days  or  any  portion  thereof,  ten  dollars  a  day;  4 

and  for  each  day  thereafter  a  sum  not  exceeding  fifteen  dollars  a  day.  5 

If  any  company  unreasonably  refuses  or  neglects  to  make  such  return,  it  6 

shall,  in  addition  thereto,  forfeit  not  more  than  five  hundred  dollars  for  7 

each  offence.     AH  forfeitures  recovered  under  this  section  shall  be  paid  8 

to  the  commonwealth.  9 


Serv-ice  to  tele- 
graph com- 
panies without 
discrimination. 
1885,  267.  §  1. 
R.  L.  122,  I  12. 


TELEPHONE   COMPANIES. 

Section  13.  A  person  owning,  controlling  or  operating  a  telephone 
exchange  or  service  in  the  commonwealth  shall,  upon  application  of  a 
telegraph  company,  furnish  such  company  with  the  use  of  telephones 
and  telephone  service,  and  connection  with  his  exchanges,  with  the  sub- 
scribers thereto,  and  with  his  telephone  service,  without  discrimination 
between  telegraph  companies  as  to  such  connection,  service  or  use  of 
instruments  furnished  or  charges  therefor  for  the  same  class  of  ser\ace. 


Telephone 
service  without 
discrimination. 
1885.  267,  §  2. 
R.  L.  122,  §  13. 


Section  14.     A  person  owning,  controlling  or  operating  a  telephone  1 

exchange  or  service  in  the  commonwealth  shall,  on  application  and  the  2 

tender  of  the  charges  or  rental  usual  or  customary  for  the  class  of  service  3 

required,  without  discrimination  for  the  same  class  of  service  rendered,  4 

furnish  the  applicant  with  the  use  of  a  telephone  and  telephone  service  5 

and  connection  with  his  exchanges  and  the  subscribers  thereto,  if  the  6 

applicant  secures  the  rights  necessary  to  make  the  connections  applied  7 

for  and  pays  to  the  telephone  company  in  advance  an  amount  sufficient  8 

to  cover  the  actual  cost  of  the  extension,  if  said  extension  is  more  than  9 

one  mile  from  any  main  exchange  circuit  of  such  company.  10 


i8sr2?57™3         Section  1.5.     The  supreme  judicial  or  superior  court  shall  have  juris-     1 
R.  l!  122, 1 14,   diction  in  equity  to  enforce  the  two  preceding  sections.  2 


Duties  of 
conipanie,'^. 
1849,  93,  §  6. 
G.  S.  64.  §  10. 
P.  S.  109.  §  10. 
R.  L.  122,  §  9. 
13  Alien,  226. 
113  Mass.  229. 
137  Mass.  403. 


TELEGRAPH   COMP.^NIES. 

Section  16.  A  telegraph  company  shall  receive  despatches  from  and 
for  other  telegraph  companies  and  associations,  and  from  and  for  any 
person;  and,  upon  payment  of  the  usual  charges  for  transmitting 
despatches  according  to  the  regulations  of  the  company,  shall  transmit 
them  faithfully  and  impartially.  205  Mass.  598.  207  Mass.  401. 


Charges  for 
despatches 
received  by 
mail,  etc. 


Section  17.     A  telegraph  company  shall  receive,  compute  and  transmit     1 
despatches  received  at  its  offices  from  another  telegraph  company  or  by     2 


Chap.  IGG.]  lines  for  transmitting  electricity.  1843 

3  mail,  at  the  same  rates  of  charge  as  for  despatches  received  for  trans-  ism,  93.  §6. 

4  mission  from  individuals  on  the  same  day  and  at  the  same  place.  isgV,  348. 

p.  S.  109,  §§  10.  11.  R.  L.  122.  §  10.  205  Mass.  598.  207  Mass.  401. 

1  Section  18.     A  telegraph  company  which  wilfully  neglects  or  refuses  Penalty  for 

2  to  comply  with  any  provision  of  the  two  preceding  sections  shall  forfeit  prelSMng"'  ""^ 

3  not  more  than  one  hundred  dollars  to  the  company  or  person  who  sends  i^g™!,  5  5, 

4  or  desires  to  send  the  despatch.  o.  s.  &4,  §  10.  ise?,  34s. 

p.  S.  109,  §§  10.  11.  R.  L.  122,  §  10.  205  Mass.  59S.  207  Mass.  401. 

1  Section  19.     A  telegraph  company  shall  be  liable  for  damages  to  the  Liability  for 

2  amount  of  one  hundred  dollars  actually  caused  by  its  negligence,  or  that  tnfnsm°ssion 

3  of  its  agents,  in  transmitting,  receiving  or  delivering  telegraphic  mes-  mellages^'"" 

4  sages,  and  any  limit  of  such  liability  by  contract  or  regulation  shall  apply  js^s.  3|o.    ^^ 

5  only  to  the  damages  in  each  case  in  excess  of  one  hundred  dollars;  but  no  la  Alien,  226. 

'  .  .  ...  197  Mass   119 

6  action  therefor  shall  be  maintained  unless  a  written  claim  is  presented  to  205  Mass!  sqs! 

7  such  company  or  its  agent  within  sixty  days  after  such  right  of  action 
S  accrues.  This  section  shall  not  apply  to  negligence  occurring  in  a  tele- 
9  graph  office  established  for  the  convenience  and  safety  of  a  railroad  cor- 

10  poration  in  the  running  of  its  trains,  and  transacting  a  public  telegraph 

11  business  only  as  incidental  thereto,  nor  to  negligence  in  the  delivery  of 

12  messages  received  at  such  office. 

1  Section  20.     Every  person  engaged  in  the  business  of  transmitting  Telegrams  to 

2  communications  by  telegraph  in  the  commonwealth  and  charging  tolls  of'fiUng.  etc^ 

3  therefor,  shall  cause  to  appear  plainly  upon  the  addressee's  copy  of  every  i909,'402, 

4  telegram  originating  at  and  destined  for  a  point  within  the  common-  §5 1.2;  542. 

5  wealth,  the  hour  and  minute  of  the  day  on  which  it  was  filed  for  trans- 

6  mission  and  the  hour  and  minute  of  the  day  of  its  receipt  at  its  destination, 

7  and  no  charge  shall  be  made  for  or  on  account  of  the  additional  matter 

8  required  b,v  this  section.     Violation  of  any  provision  of  this  section  shall 

9  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  for  every 
10  telegram  in  respect  to  which  the  violation  occurs. 

construction  of  lines  for  tr.\nsmitting  electricity. 

1  Section  21.    A  company  incorporated  for  the  transmission  of  intelli-  Construction 

2  gence  by  electricity  or  by  telephone,  whether  by  electricity  or  otherwise,  is49, 93,  §  2. 

3  or  for  the  transmission  of  electricity  for  lighting,  heating  or  power,  or  for  p.  s.  106,  §"2. 

4  the  construction  and  operation  of  a  street  railway  or  an  electric  railroad,  Ittl',  HI'. 

5  may,  under  this  chapter,  construct  lines  for  such  transmission  upon,  r.^l^i??' 5 1. 

6  along,  under  and  across  the  public  ways  and  across  and  under  any  waters  JgJ^'  5°.?'  ^  ^■ 

7  in  the  commonwealth,  by  the  erection  or  construction  of  the  poles,  piers,  |J|j-     ' 

8  abutments,  conduits  and  other  fixtures,  except  bridges,  which  may  be  ise  Mass.  75! 

r\  1  ^    ■  ^      J.  ^\  •  J!  ■..     r  u    1  1  153  Mass.  200. 

9  necessary  to  sustain  or  protect  the  wires  or  its  hues;   but  such  company  iss  Mass.  250. 

10  shall  not  incommode  the  public  use  of  public  Mays  or  endanger  or  inter-  239 u.^lf'als!' 

1 1  rupt  navigation.  2  Op.  a.  g.  423. 

1  Section  22.     A  company  desiring  to  construct  a  line  for  such  trans-  i.oeation,  ete . 

2  mission  upon,  along,  under  or  across  a  public  way  shall  in  writing  petition  or  selectmen 

3  the  board  of  aldermen  of  the  city  or  the  selectmen  of  the  town  where  it  cf*!.' 64,' 11. 

4  is  proposed  to  construct  such  line  for  permission  to  erect  or  construct  ^-  f;  \22  V2 

5  upon,  along,  under  or  across  said  way  the  wires,  poles,  piers,  abutments  JUort' n?' 

6  or  conduits  necessary  therefor.     A  public  hearing  shall  be  held  on  the  i9h!509'§2. 


1844  LINES   FOR  TRANSMITTING   ELECTRICITY.  [ChaP.    166. 

1916, 166.         petition,  and  \vTitten  notice  of  the  time  and  place  of  the  hearing  shall  be     7 
97  Mass.  555.     mailed  at  least  seven  days  prior  thereto  by  the  clerk  of  the  city  or  by  the    8 
202  Mass^  402!    sclectmcn  of  the  town  to  all  owiiers  of  real  estate  abutting  upon  that    9 
239  u  Ts^a''   P^rt  of  the  way  upon,  along,  across  or  under  which  the  line  is  to  be  con-  10 
structed,  as  such  o\^-nership  is  determined  by  the  last  preceding  assessment  1 1 
for  taxation.    After  a  public  hearing  as  aforesaid,  the  board  of  aldermen  12 
or  the  selectmen  may  by  order  grant  to  the  petitioner  a  location  for  such  13 
line,  specifying  therein  where  the  poles,  piers,  abutments  or  conduits  14 
may  be  placed,  and  in  respect  to  overhead  lines  may  also  specify  the  kind  15 
of  poles,  piers  or  abutments  which  may  be  used,  the  number  of  wires  or  16 
cables  which  may  be  attached  thereto,  and  the  height  to  which  the  wires  17 
or  cables  may  run.  18 

After  the  erection  or  construction  of  such  line,  the  board  of  aldermen  19 
or  selectmen  may,  after  giving  the  company  or  its  agents  an  oppor-  20 
tunity  to  be  heard,  or  upon  petition  of  the  company  without  notice  or  21 
hearing,  by  order  permit  an  increase  in  the  number  of  wires  or  cables,  22 
and  direct  an  alteration  in  the  location  of  the  poles,  piers,  abutments  23 
or  conduits  or  in  the  height  of  the  wires  or  cables.  The  board  of  alder-  24 
men  or  selectmen  may,  on  written  petition  by  two  or  more  companies  25 
subject  to  this  chapter,  and  having  locations  in  any  of  the  public  ways  26- 
of  such  city  or  town,  without  notice  or  hearing,  by  order  authorize  any  27 
such  company  to  attach  its  wires  and  fixtures  to  existing  poles,  piers  28 
or  abutments  of  either  or  any  of  the  other  petitioners,  or  to  maintain  29 
its  wires  or  cables  in  the  conduits  of  either  or  any  of  said  other  peti-  30 
tioners,  or  by  order  grant  to  said  companies  joint  or  identical  locations  31 
for  the  maintenance  of  said  existing  poles,  piers,  abutments  or  conduits,  32 
to  be  used  in  common  by  them.  The  board  of  aldermen  or  selectmen  33 
may,  on  WTitten  petition  by  two  or  more  companies  subject  to  this  34 
chapter,  and  after  notice  to  abutting  land  owners  and  a  hearing  as  here-  35 
inbefore  provided,  by  order  grant  to  said  companies  joint  or  identical  36 
locations  for  the  erection  or  construction  of  poles,  piers,  abutments  or  37 
conduits,  to  be  owned  and  used  in  common  by  them.  No  order  of  the  38 
board  of  aldermen  or  selectmen  shall  be  required  for  renewing,  repair-  39 
ing  or  replacing  wires,  cables,  poles,  piers,  abutments,  conduits  or  fixtures  40 
once  erected  or  constructed  under  the  provisions  of  law,  or  for  making  41 
house  connections  or  connections  between  duly  located  conduits  and  dis-  42 
tributing  poles.  43 

The  order  granting  a  location  or  an  alteration  thereof,  or  authorizing  44 
an  increase  in  the  number  of  wires  or  cables  or  attachments,  such  as  are  45 
hereinbefore  described,  shall  be  recorded  by  the  city  or  town  clerk  in  46 
books  kept  exclusively  therefor,  and  where  notice  has  been  given  as  47 
hereinbefore  provided  the  clerk  of  the  city  or  the  chairman  or  a  majority  48 
of  the  selectmen  shall  certify  on  said  record  that  the  order  was  adopted  49 
after  due  notice  and  a  public  hearing  as  hereinbefore  prescribed,  and  no  50 
such  order  shall  be  valid  without  such  certificate.  The  company  or  com-  51 
panics  in  whose  favor  the  order  is  made  shall  pay  for  such  record  the  52 
same  fees  allowed  for  the  entering  and  recording  of  deeds  by  registers  of  53 
deeds,  and  shall  be  entitled  to  attested  copies  of  said  orders  and  certificates  54 
upon  paj-ment  of  the  same  fees  allowed  to  registers  of  deeds  for  copies.  55 
The  board  of  aldermen  or  selectmen  may  under  this  section  authorize  56 
the  attachment  of  the  wires  and  fix-tiu-es  of  a  street  railway  or  electric  57 
railroad  company  to  the  poles,  piers  and  abutments  of  another  owner,  58 
or  the  attachment  of  the  wires  and  fixtures  of  another  owner  to  the  59 
poles,  piers  and  abutments  of  such  company,  and  may  grant  joint  or  60 


Cli^P.    166.]  LINES  FOR  TR.\NSMITTING  ELECTRICITY.  1845 

61  identical  locations  for  the  erection  or  construction  of   poles,  piers,  or 

62  abutments  to  be  owned  and  used  in  common  by  such   Company  and 

63  other  owners,  and  locations  for  the  transmission  lines  and  telephone,  sig- 

64  nal  and  feed  wires  of  such  company  in  public  ways  or  parts  thereof,  other 

65  than  those  public  ways  in  which  the  tracks  of  such  company  are  laid,  and 

66  locations  for  additional  poles  to  support,  or  alterations  of  locations  for 

67  existing  poles  supporting,  trolley  or  span  wires;  and  all  locations  granted 

68  to  a  street  railway  or  electric  railroad  company  hereunder  shall  be  sub- 

69  ject  only  to  revocation  as  provided  in  sections  seventy-seven  and  eighty- 

70  two  of  chapter  one  hundred  and  sixty-one;  but  nothing  contained  in  this 

71  section  save  as  hereinbefore  expressly  set  forth  shall  be  held  to  apply  to 

72  the  poles,  wires  and  other  appliances  and  equipment  which  a  street  railway 

73  or  electric  railroad  company,  by  a  grant  of  location,  or  extension  or 

74  alteration  thereof,  under  any  general  or  special  law  now  or  hereafter  in 

75  force  relating  to  street  railways  or  electric  railroads  may  be  authorized 

76  to  construct,  maintain  and  operate  in  a  public  way;    and  no  terms, 

77  restrictions  and  obligations,  other  than  those  imposed  upon  a  grant  of 

78  location  for  a  street  railway  or  electric  railroad,  or  an  extension  or  alter- 

79  ation  thereof,  under  any  general  or  special  law  now  or  hereafter  in  force 

80  relating  thereto,  shall  be  imposed  upon  locations  granted  to  a  street 

81  railway  or  electric  railroad  company  hereunder,  save  locations  for  its 

82  transmission  lines  or  telephone,  signal  or  feed  wires  in  public  ways  other 
S3  than  those  public  ways  in  which  the  tracks  of  such  company  are  laid. 

1  Section  23.    Selectmen  may  authorize  citizens  of  the  commonwealth  Establishment 

2  to  establish  and  maintain,  in  their  town,  poles,  wires  and  other  apparatus  and^tdJphone 

3  for  telegraphic  and  telephonic  communication,  in  conformity  with  this  cuflens. 

4  chapter  and  other  laws  applicable  to  telegraph  or  telephone  companies,  j?'!' •2*7%^4^9 

R.  L.  25,  §  36.  239  U.  S.  313. 

1  Section  24.    The  selectmen  may,  upon  terms  and  conditions   pre-  Transmission 

2  scribed  by  them,  and  subject  to  the  provisions  of  this  chapter,  so  far  for" private  uso. 

3  as  applicable,  authorize  a  person  to  construct  for  private  use   upon,  g^f.'s.^'^' 

4  along  and  under  the  public  ways  of  the  town  telegraph  and  telephone  fs8\|2i!  *^' 

5  lines  and  lines  for  the  transmission  of  electricity  for  light,  heat  or  power.  i|89'  *34. 

6  Upon  the  construction  of  any  such  line,  the  poles  and  structures  thereof  R  l!25,  " 

7  within  the  location  of  such  ways  shall  become  the  property  of  the  town, 

8  and  the  selectmen  may  regulate  and  control  the  same,  may  at  any  time 

9  require  the  persons  using  the  same  to  make  alterations  in  the  location 

10  or  construction  thereof  and  may,  after  notice  and  a  hearing,  order  the 

11  removal  thereof.     The  town  may  at  any  time  attach  wires  for  its  own 

12  use  to  such  poles  and  structures,  and  the  selectmen  may  permit  other 

13  persons  to  attach  wires  for  their  private  use   thereto  or  to  poles  and 

14  structiu-es  constructed  by  the  to^Ti,  and  may  prescribe  reasonable  terms 

15  and  conditions  therefor.     Whoever  unlawfully  injures  or  destroys  any 

16  wire,  pole,  structure  or  fixture  of  any  such  line  shall  be  punished  by  a 

17  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not 

18  more  than  two  years,  or  both. 

1  Section  25.    The  selectmen  may,  witliin  their  towns,  permit  tele-  Regulation  of 

2  graph  and  telephone  lines  to  be  laid  under  any  public  way  or  place,  under'pubiic 

3  and  may  establish  reasonable  regulations  for  the  erection  and   main-  isso.'ss,  §i 

4  tenance  of  all  lines  for  the  transmission  of  intelligence  by  telegraph  or  28.^§4^' ^'*''' 

5  telephone,  or  for  the  transmission  of  electricity  for  light,  or  for  heat  or  i^^^,  221. 


1846  LINES   FOR  TR,iNSMITTING  ELECTRICITY.  [CbL\P.    1G6. 

1889,398;  434.   powcr  except  for  the  use  of   street  railway  companies,  by  every  person  6 

R.  L.'25,  §54;    having  authority  to  place  such  structures  in  or  under  public  ways  or  7 

202  Miss,  402.   places,  including  all  lines  owned  or  used  by  said  towns.     Regulations  8 

226M^I.2io.'    established  by  a  city  hereunder  shall  be  made  by  ordinance.  9 

^reS'^tloL         Section  26.     The  selectmen  shall  forthwith  give  \sTitten  notice  in  1 

i8so,'83'*§'2      detail  to  the  owner,  constructor  or  person  using  any  line  constructed  2 

fir?,- ^I,'o^  *^-     or  maintained  in  violation  of  such  regulations;    and  if  thereafter  such  3 

R.  L.  25.  §  55.    unlawful  construction  is  continued  or  it  said  lines  are  not  within  a  4 

reasonable  time  so  altered  as  to  conform  to  said  regulations,  the  supreme  5 

judicial  or  superior  court  may  enjoin  the  further  progress  of  said  work,  6 

or  order  such  line  removed  or  altered  at  the  expense  of  the  owners,  con-  7 

structors  or  persons  using  the  same.     If  such  line  belongs  to  or  is  used  8 

by  a  town,  like  action  may  be  taken  upon  complaint  of  a  person  injured,  9 

after  such  notice  to  the  town  as  the  court  may  order.  10 

onJman?eor          SECTION  27.     No  Ordinance  or  regulation  of  a  city  or  town,  or  regu-  1 

t|Euiation.        latiou  or  restriction  imposed  in  a  grant  of  location,  aifecting  the  erection,  2 

1914] 742.' 5 132.  maintenance  or  operation  of  a  line  for  the  transmission  of  electricity  for  3 

light,  heat  or  power  extending  or  intended  to  extend  from  some  point  in  4 

one  city  or  town  through  or  to  some  point  in  another  city  or  town,  5 

shall  take  effect  until  approved  by  the  department  of  public  utilities.  6 


1919,350.  §117. 


iocatiorfby^  SECTION  28.     Any  Company  subject  to  this  chapter,  except  a  telegraph     1 

department.  or  telephone  company,  desiring  to  construct  a  line  for  the  transmission  2 
1919!  33o!  '  of  electricity  which  will  of  necessity  pass  through  one  or  more  cities  or  3 
towns  to  connect  the  proposed  termini  of  such  line,  whose  petition  for  4 
the  location  necessary  for  such  line  has  been  refused,  or  has  not  been  5 
granted  within  three  months  after  the  filing  thereof  by  the  board  of  6 
aldermen  of  a  city  or  the  selectmen  of  a  town  through  which  said  com-  7 
pany  intends  to  construct  such  line  for  the  pm-pose  aforesaid,  may  apply  8 
to  said  department  for  such  location.  The  department  shall  give  a  pub-  9 
lie  hearing  thereon  after  notice  to  the  board  of  aldermen  or  selectmen  10 
refusing  or  neglecting  to  grant  such  location,  and  to  all  persons  owning  11 
real  estate  abutting  upon  any  way  in  the  city  or  town  where  such  loca-  12 
tion  is  sought,  as  such  ownership  is  determined  by  the  last  assessment  13 
for  taxation.  The  department  shall,  if  requested  by  the  board  of  aldermen  14 
or  selectmen,  hold  said  hearing  in  the  city  or  town  where  the  location  15 
is  sought.  If  it  appears  at  the  hearing  that  the  company  has  already  16 
been  granted  and  has  accepted  a  location  for  such  line  in  two  cities,  or  in  17 
two  towns,  or  in  a  city  and  town  adjoining  the  city  or  town  because  of  the  18 
refusal  or  neglect  of  whose  board  of  aldermen  or  selectmen  to  grant  a  19 
location  therefor  the  application  is  made,  and  if  the  department  deems  20 
the  location  necessary  for  public  convenience,  and  in  the  public  interest,  21 
it  may  by  order  grant  a  location  for  such  line  in  the  city  or  town  with  22 
respect  to  which  the  application  is  made,  and  shall  have  and  exercise  23 
relative  thereto  the  same  powers  and  authority  conferred  by  section  24 
twenty-two  upon  the  board  of  aldermen  or  selectmen,  and  in  addition  25 
to  the  pro\-isions  of  law  governing  such  company  may  impose  such  other  26 
terms,  limitations  and  restrictions  as  it  deems  public  interest  may  re-  27 
quire.  The  department  shall  cause  an  attested  copy  of  its  order,  Mitli  28 
the  certificate  of  its  clerk,  endorsed  thereon,  that  the  order  was  adopted  29 
after  due  notice  and  a  public  hearing  as  hereinbefore  prescribed,  to  be  30 
forwarded  to  the  city  or  town  clerk,  who  shall  record  the  same  and  fur-  31 


Chap.  166.]  lines  for  tkustsmitting  electricity.  1S47 

32  nish  attested  copies  thereof  upon  the  terms  and  in  the  manner  specified 
3.3  in  section  twenty-two. 

DAMAGES. 

1  Section  29.     An  owner  of  land  abutting  upon  a  public  way  along  Damages 

2  which  telegraph  or  telephone,  electric  light,  heating  or  power  lines  are  ejection  of 

3  constructed,  erected  or  altered  in  location  or  construction  by  any  tele-  i™9,93r°*'^' 

4  graph  or  telephone,  electric  light,  heating  or  power  company,  whose  |;^  s' 1;, 

5  property  is  injuriously  affected  or  diminished  in  value  by  occupation  of  |>^s'f5g 

6  the  ground  or  of  the  air,  or  otherwise  by  such  construction,  erection  or  §§4.5.' 

7  alteration,  whether  such  owner  is  also  the  owner  of  the  fee  in  such  way  is9o,'  350.' 

S  or  not,  may  recover  damages  therefor  from  the  company  under  chapter  130  Mass' 75.' 
9  seventy-nine.  i~2  Mass.  197.  2  Op.  a.  g.  423. 

POLES   AND   WIRES. 

1  Section  30.     A  person  or  a  corporation,  private  or  municipal,  owning  Regulations 

2  or  operating  a  line  of  wires  over  or  under  streets  or  buildings  shall  use  ^ires^"' Sfties 

3  only  strong  and  proper  wires  safely  attached  to  strong  and  sufficient  is9o!°4ci3r§  1 

4  supports  and  insulated  at  all  points  of  attachment;    shall  remove  all  R^L'il^'lie 

5  wires  the  use  of  which  is  abandoned;   shall  properly  insulate  every  wire  lei  Mass.  ssa.' 

6  where  it  enters  a  building,  and,  if  such  wire  is  other  than  a  wire  designed 

7  to  carry  an  electric  light,  heat  or  power  current,  shall  attach  to  it  at  a 

8  proper  point  in  the  circuit,  near  the  place  of  entering  the  building,  and  so 

9  situated  as  to  avoid  danger  from  fire,  an  appliance  adapted  at  all  times 

10  to  prevent  a  current  of  electricity  of  such  intensity  or  volume  as  to  be 

11  capable  of  injuring  electrical  instruments  or  of  causing  fire  from  entering 

12  the  building  by  means  of  such  wire  beyond  the  point  at  which  such 

13  appliance  is  attached;    and  shall  properly  insulate  every  wire  within  a 

14  building  designed  to  carry  an  electric  light,  heat  or  power  current. 

1  Section  31.     Such  person  or  corporation  shall  plainly  mark  each  pole.  Names  of 

2  pier,  abutment  or  other  fixture  supporting  wires  or  cables  containing  auaciied"  ^^ 

3  wires  over  streets  or  buildings  with  the  name  or  initials  of  the  owner  of  Jlgg;!?^:  ^  '■ 

4  such  pole,  pier,  abutment  or  other  fixture.    Wherever  cross  arms  or  other  if\^^ri,    i7 

5  appliances  for  the  support  of  wires  or  cables  belonging  to  different  1911]  sou,  §  3.' 

6  owners  are  attached  to  the  same  pole,  pier,  abutment  or  other  fixture, 

7  every  such  cross  arm  or  other  appliance  shall  plainly  be  tagged  or  marked 

8  with  the  name  or  initials  of  the  owner  thereof.    Wherever  wires  or  cables 

9  belonging  to  different  owners  are  attached  to  the  same  cross  arm  or  other 

10  appliances  for  the  support  of  wires  or  cables,  every  wire  or  cable  shall  be 

11  tagged  or  marked  with  the  name  or  initials  of  the  owner  at  or  near  its 

12  point  of  attachment  to  such  cross  arm  or  other  appliance.    No  such  tag 

13  or  mark  shall  be  required  for  the  wires,  poles,  piers,  abutments  and  other 

14  fixtures  of  a  street  railway  or  electric  railroad  company,  except  for  its 

15  feed  wires  supported  by  poles  carrying  wires  or  cables  belonging  to  another 

16  owner,  and  for  its  poles  supporting  wires  or  cables  belonging  to  another 

17  owner,  and  for  poles  belonging  jointly  to  the  street  railway  company  and 

18  another  owner. 

1  Section  32.     A  city  shall,  by  ordinance,  designate  or  provide  for  the  inspector  of 

2  appointment   of  an   inspector   of  wires,   and  any  town  may  provide  ^9a'404,''^^' 

3  by  vote  or  by  by-law  for  the  appointment  by  its  selectmen  of  such  an  flgg,  337, 

4  inspector.     Such  inspector  shall   supervise  every  wire  over   or  under  fj^  f,'  ^122, 5  ig. 

5  streets  or  buildings  in  such  city  or  town  and  every  wire  within  a  build-  '^^^o,  591',  §  is. 


1848 


LINES   FOR  TRANSMITTING  ELECTRICITY. 


[Chap.  166. 


ing  designed  to  carry  an  electric  light,  heat  or  power  current;  shall  6 
notify  the  person  owning  or  operating  any  such  wire  whenever  its  at-  7 
tachnients,  insulation,  supports  or  appliances  are  improper  or  unsafe,  8 
or  whenever  the  tags  or  marks  thereof  are  insufficient  or  illegible;  shall,  9 
at  the  expense  of  the  city  or  town,  remove  every  wire  the  use  of  which  10 
has  been  abandoned,  and  every  wire  not  tagged  or  marked  as  herein-  11 
before  required,  and  shall  see  that  all  laws  and  regulations  relative  to  12 
wires  are  strictly  enforced.  A  city  or  town  may  recover  in  contract  of  13 
the  owner  of  any  such  wire  so  removed  the  expense  which  it  has  incurred  14 
for  the  removal  thereof.  15 


Enforcement. 
1890.  404,  §  5. 
R.  L.  122,  §  19. 


Section  33.  The  supreme  judicial  or  superior  court  shall  have  juris- 
diction in  equity  upon  petition  of  the  inspector  designated  or  appointed 
as  aforesaid,  to  enforce  the  three  preceding  sections  and  to  restrain  the 
use  or  maintenance,  or  to  cause  the  removal,  of  any  wire,  pole  or  other 
support  erected,  maintained  or  used  in  violation  of  said  sections. 


Insulation 
of  poles. 
Penaltv. 
1895,  228, 
§§  1-3. 
R.  L.  122, 
§§  20,  21. 
1911,  509, 


§4. 


Section  34.  Poles  and  other  structures  used  to  support  lines  for  the  1 
transmission  of  electricity  shall  be  insulated  in  such  manner  as  to  protect  2 
employees  and  other  persons  from  accidents.  If  such  poles  and  other  3 
structures  are  of  any  material  except  wood,  and  support  lines  which  are  4 
operated  at  a  voltage  in  excess  of  two  thousand  volts,  they  shall  be  5 
plainly  and  conspicuously  marked  "Dangerous.  Keep  Away."  The  6 
inspector  of  wires  appointed  under  the  authority  of  section  thirty-two,  7 
or  the  commissioner  of  wires  of  Boston,  shall  enforce  this  section,  and  8 
he  shall  be  the  sole  judge  of  what  constitutes  a  proper  insidation  and  9 
marking.  Any  owner  of  poles,  used  for  the  transmission  of  electricity,  10 
failing  to  comply  with  any  provision  of  this  section  shall  be  punished  by  11 
a  fine  of  not  less  than  ten  nor  more  than  one  hundred  dollars  for  every  12 
pole  left  uninsulated  for  an  unreasonable  time  after  a  request  for  a  13 
proper  insulation  by  the  inspector  or  commissioner  acting  under  this  14 
section.  15 


Penalty  for 
affixing  tele- 
phone wires, 
etc.,  to  prop- 
erty witnout 
permission. 
1884,  302.  §  1. 
R.  L.  122,  §  2i 


Section  35.     A    corporation    or    person    maintaining    or    operating  1 

telephone,  telegraph  or  other  electric  wires  or  any  other  person  who  in  2 

any  manner  affixes  or  causes  to  be  affixed  to  the  property  of  another  3 

any  pole,  structure,  fixture,  wire  or  other  apparatus  for  telephonic,  4 

telegraphic  or  other  electrical  communication,  or  who  enters  upon  the  5 

property  of  another  for  the  purpose  of  affixing  the  same,  without  first  6 

obtaining  the  consent  of  the  owner  or  lawful  agent  of  the  owner  of  such  7 

property,  shall,  on  complaint  of  such  owner  or  his  tenant,  be  punished  by  8 

a  fine  of  not  more  than  one  hundred  dollars.  9 


pomraJoS"^'         Section  36.     A  corporation  or  person  maintaining  or  operating  tele-  1 

poieorstruc-     phouc,  telegraph  or  other  electric  wires  shall,  at  all  places  where  such  2 

,     wires  are  affixed  by  any  pole,  structure  or  fixture  to  the  property  of  an-  3 

23.  other,  mark  such  pole,  structure  or  fixture  in  a  clear,  durable  and  legible  4 

manner  with  the  name  or  initials  of  the  corporation  or  person  maintaining  5 

or  operating  such  wires,  and  any  corporation  or  person  failing  to  comply  6 

with  this  section  shall  be  punished  by  a  fine  of  not  more  than  one  hun-  7 

dred  dollars.  8 


ture, 
Penaltv. 
1884,  302, 
R.  L.  122, 
1911.  509, 


SjuTn^cTby'         Section  37.     No  enjoraient,   for  the  purposes  specified  in  section     1 
iS5T'2^47  §  1     twenty-one,  for  any  length  of  time  of  the  privilege  of  having  or  main-    2 


Chap.  166.]  lines  for  transmitting  electricity.  1849 

3  taining  poles,  ^-ires  or  apparatus  in,  upon,  over  or  attached  to  any  build-  p  |  fog  Yio 

4  ing  or  land  of  other  persons  shall  give  a  legal  right  to  the  continued  en-  f^s'h^^^-^i^^- 

5  joyment  of  such  easement  or  raise  any  presumption  of  a  grant  thereof. 

1  Section  38.    Whoever  unlawfully  and  intentionally  injures,  molests  injury-  to  lines, 

2  or  destroys  any  line,  wire,  pole,  pier  or  abutment,  or  any  of  the  materials  Penalties' 

3  or  property  of  any  street  raOway  company,  of  any  electric  railroad  com-  g.s.'64,'|i5. 

4  pany,  or  of  any  city  or  town  engaged  in  the  manufacture  and  sale  of  elec-  r  i/i^iliz. 

5  tricity  for  light,  heat  or  power  or  of  any  company,  owner  or  association  i^o^'  233. 

6  described  in  sections  twenty-one  and  forty-tlu-ee  shall  be  punished  by 

7  a  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not 

8  more  than  two  years,  or  both;    and  whoever  does  any  act  prohibited 

9  by  this  section  between  the  hours  of  four  o'clock  in  the  afternoon  and 

10  seven  o'clock  in  the  forenoon  shall  be  punished  by  a  fine  of  not  more  than 

1 1  one  thousand  dollars  or  by  imprisonment  for  not  more  than  four  years, 

12  or  both. 

1  Section  39.     Whenever,  in  order  to  move  a  building  or  for  any  other  wires  may  be 

2  necessary  purpose,  a  person  desires  that  the  wires  of  any  such  company  i8oiri4i.§  i. 

3  be  cut,  disconnected  or  removed,  the  company  shall  forthwith  cut,  dis-  r.l.\22,|28. 

4  connect  or  remove  the  same,  if  the  person  desiring  this  to  be  done  has  }ss  mTss'.  les. 

5  first  left  a  WTitten  statement,  signed  by  him,  of  the  time  when,  and  the 

6  place,  described  by  reference  to  the  crossings  of  streets  or  highways, 

7  where  he  wishes  to  remove  said  wires,  at  the  office  of  the  company  in  the 

8  city  or  town  where  such  place  is  situated,  twenty-four  hours  before  the 

9  time  so  stated,  or,  if  there  is  no  such  office,  if  he  has  deposited  such 

10  statement  in  the  post  office,  postage  prepaid,  and  directed  to  the  com- 

11  pany  at  its  office  nearest  to  said  place,  three  days  before  the  time  men- 

12  tioned  in  said  statement.     If  the  company  neglects  or  refuses  to  cut, 

13  disconnect  or  remove  wires  as  hereinbefore  provided,  the  inspector  of 

14  wires,  or  the  selectmen  of  a  town  having  no  such  inspector,  may  cause 

15  the  same  to  be  cut,  disconnected  or  removed,  and  the  city  or  town  may 

16  Tecovev  of  the  company  in  contract  the  expense  of  so  doing. 

1  Section  40.     Whoever  wilfully  cuts,  disconnects,  removes  or  other-  Penalty  for 

2  wise  interrupts  the  use  of  the  wires  of  any  such  company,  ■without  first  without  notice. 

3  giving  notice  as  provided  in  the  preceding  section,  shall  be  punished  as  p*s\'ic»,'|fs. 

4  provided  in  section  thirty-eight.  R-  l.  122,  §  29. 

1  Section  41.    The  two  preceding  sections  shall  not  apply  to  any  wires  Limitation  of 

2  attached  to  poles  not  erected  in  compliance  with  law.  secUons^^  '°^ 

1869,  141,  I  3.  p.  S.  109,  §  19.  R.  L.  122,  §  30. 

1  Section  42.     A  telegraph  company  shall  be  liable  in  damages   to  a  Liability  of 

2  person  injured  in  his  person  or  property  by  the  poles,  wires  or  other  plny^for  injury 

3  apparatus  of  such  company.    If  they  are  erected  upon  a  public  way,  the  ii^_  ^fj^'^  f."' 

4  city  or  town  shall  not,  by  reason  of  an\-thing  contained  in  this  chapter  or  g  ^I.'l4.°i  ii 

5  done  thereunder,  be  discharged  from  its  liability,  but  all  damages  and  RL\°2^il\| 

6  costs  recovered  against  it  on  account  of  such  injury  shall  be  reimbursed  scray.  ssfe 

7  by  the  company  owning  the  poles,  wires  or  other  apparatus.  ise  Mass.  75. 

IGl  Mass.  558.  184  Mass.  150. 


1850 


BANKS  AND  BANKING. 


[Chap.  167. 


GENERAL   PROVISIONS. 

rt''apte?'to°  °^        Section  4.3.     Owners  and  associations  engaged  in  the  business  speci-     1 
others  than       gg(j  j^  section  twentv-one  although  pot  incorporated  shall  be  subject    2 

corporations.  i-i  p"  tii  o 

1849.93,  to  this  chapter  so  lar  as  applicable.  3 

1S51.  57.  I  2.  p.  S.  109,  5  14.  1906.  433,  §  12.  • 

G.  S.  64,  §  13.  R.  L.  122,  §  25.  13  AUen,  226. 


il.6. 


REFERENCES. 

General  provisions  applicable  to  all  corporations,  Chap.  155. 

For  the  organization  of  companies  included  in  this  chapter,  see  the  following: 

Telephone  and  telegraph  companies,  Chap.  158. 

Railroads,  Chap.  160. 

Street  railways,  Chap.  161. 

Electric  railroads,  Chap.  162. 

TroUej-motors,  Chap.  163. 

Gas  and  electric  companies.  Chap.  164. 
Super\-ision  of  telephone,  telegraph,  railroad,  street  railway,  electric  railroad  and 
troUejTnotor  companies.  Chap.  159. 


CHAPTER    167 


BANKS  AND  BANKING. 


Sect. 


SUPERVISION. 


1.  Definitions. 

2.  Examination  of  banks. 

3.  Commissioner  may   summon   and   ex- 

amine officers.     Penalty. 

4.  Examination   of   bank   on   request   of 

officers,  etc. 

5.  Commissioner  may  report  and  prosecute 

violations    of    law.     Publication    of 
certain  facts. 

6.  Books  and  accounts. 

7.  Reports  of  banks.     Penalty. 

8.  Penalty  for  failure  to  make  reports. 

9.  Report  to  general  court. 

10.  Appraisal    of    real    estate    offered    as 

security. 

11.  Returns,  etc.,  may  be  destroyed. 

REGULATION    OF    BUSINESS. 

12.  Unauthorized  banking  prohibited. 

13.  Penalty  therefor. 

14.  Joint  deposits  regulated. 

15.  Joint  deposits,   interest  on. 

16.  Interest  on  sums  deposited  at  intervals. 

17.  DiWdends  on  deposits.     Computation 

thereof  when  interest   day  falls  ou 
Sunday  or  holiday. 
IS.  PajTnent  of  unearned   di\adends  pro- 
hibited;   penalty. 

19.  Return  of  vouchers.     Notices. 

20.  Lost  pass  books. 

LIQUID.ITION. 

21.  Receivers  to  deposit  unclaimed  money. 

22.  When  commissioner  may  take  posses- 

sion of  bank.     Voluntary  dissolution. 


Sect. 

23.  Possession  of  commissioner;   effect  and 

subsequent  procedure. 

24.  Authority  of  commissioner  in  posses- 

sion. 

25.  Litigation  and  sales  of  property. 

26.  Commissioner  may  appoint  agents  to 

assist,  etc. 

27.  Inventory. 

28.  Notice  and  proof  of  claims. 

29.  List  of  claims. 

30.  Fees  and  expenses. 

31.  Di\-idends;    objections   to  claims. 

32.  Disposition  of  property  deposited  with 

bank. 

33.  Application  to  court  to  enjoin  proceed- 

ings of  commissioner. 

34.  Stockholders'  meeting. 

35.  Disposition  of  funds  remaining  in  hands 

of  commissioner. 

36.  Enforcement. 

FOREIGN   B.INKS. 

37.  Certain  foreign  banking  associations  not 

to  do   business  without  permission, 
etc. 

38.  Annual  examination. 

39.  Commissioner  to  have  access  to  vaults 

and  may  summon  ■n'itnesses,  etc. 

40.  Proceedings  for  enjoining  insolvent  cor- 

poration from  doing  business,  etc. 

41.  Savings  department. 

42.  Funds,  etc.,  to  be  kept  separate. 

43.  Income. 

44.  Number   of   offices   in   commonwealth 

limited. 

45.  Application  of  sections  41  to  44. 


Chap.  167.]  banks  and  banking.  1851 


SUPERVISION. 

1  Section  1.     In  this  chapter,  unless  the  context  otherwise  requires,  the  Definitions. 

2  following  words  shall  have  the  following  meanings:  i9io!399!§i! 

3  "Bank",  a  savings  bank,  co-operative  bank,  trust  company  or  any  i^i^' ^so,  §  46. 

4  person,  partnership,  association  or  corporation,  incorporated  or  doing  a 

5  banking  business  in  the  commonwealth,  subject  to  the  supervision  of 

6  the  commissioner  of  banks. 

7  "Commissioner",  the  commissioner  of  banks. 

1  Section  2.     The  commissioner,  either  personally  or  by  his  exam-  Examination 

2  iners,  or  such  others  of  his  assistants  as  he  may  designate,  shall,  at  least  ^sss.'u^,'  §  2. 

3  once  in  each  year,  and  whenever  he  considers  it  expedient,  visit  each  g.^s'sI.Vs^' 

4  bank.     At  such  visits  the  person  making  the  examination  shall  have  iff's'*^' 

5  free  access  to  the  vaults,  investments,  cash,  books  and  papers,  and  shall  is^e,  231,  §  3. 

6  examine  the  affairs,  of  the  bank,  and  ascertain  whether  it  has  complied  isss.  51/ 

7  with  the  law.    In  case  of  banks  not  subject  to  section  seventeen  of  chap-  r.  l'  113!  §  3! 

8  ter  one  hundred  and  sixty-eight,  the  person  making  the  examination  § §°f,' f.^s. 

9  shall  also  ascertain  the  condition  of  the  bank,  and  its  ability  to  fulfil  §|f;o9°' 

10  its  obligations.     The  commissioner  shall  preserve  a  full  record  of  such  Jgio'e^o'li' 

11  examinations,  including  a  statement  of  the  condition  of  every  bank  so  1912!  ns.' 

12  examined.     Such  records,  and  information  contained  in  reports  of  such  §§45,'46,'49. 

13  banks,  other  than  information  required  by  law  to  be  published  or  to  be 

14  open  to  the  inspection  of  the  public,  shall  be  open  only  to  the  inspec- 

15  tion  of  the  commissioner,  his  examiners  and  assistants,  and  such  other 

16  officers  of  the  commonwealth  as  may  have  occasion  and  authority  to 

17  inspect  them  in  the  performance  of  their  official  duties.     The  commis- 

18  sioner  may  furnish  to  the  national  bank  examiners,  the  federal  govern- 

19  ment,  any  organization  created  by  federal  legislation,  or  the  banking 

20  departments  of  other  states,  such  information,  reports  and  statements 

21  relating  to  the  institutions  under  his  supervision  as  he  deems  best. 

1  Section  3.     The  commissioner,  or  his  examiners  or  such  others  of  his  Commissioner 

2  assistants  as  he  may  designate,  may  summon  the  trustees,  officers  or  ^Y/x"m'ine° 

3  agents  of  a  bank,  or  any  other  witnesses,  and  examine  them  relative  to  p*na[ty. 

4  the  affairs,  transactions  and  condition  of  the  baiok,  and  for  that  purpose  }|^*'  ^f  5  3. 

5  may  administer  oaths.     ^Mioever,  without  justifiable  cause,  refuses  to  ap-  issi.  ^fM,^- 

6  pear  and  testify  when  so  required,  or  obstructs  the  person  making  such  isoe,  192,  s's. 

7  examination  in  the  performance  of  his  duty,  shall  be  punished  by  a  fine  p.  s.'ii6.'§4.' 

8  of  not  more  than  one  thousand  dollars  or  by  imprisonment  for  not  more  u^t.  ill'.  1 1'. 

9  than  one  year. 

190G,  204.  §§  1,  3.  5.         I90S.  590,  §§  6,  69.         1919.  350.  §§  45,  46,  49. 

1  Section  4.     Upon  written  application  on  oath  to  the  commissioner  by  Examination 

2  five  or  more  officers,  trustees,  creditors  or  depositors  of  a  bank  setting  mJ^Te^to" 

3  forth  their  interest  and  the  reasons  for  making  an  examination  and  issiTi'27!''§  4. 

4  requesting  him  to  examine  such  bank,  he  shall  forthwith  make  a  full  ig,;!' ^92^  f 4 

5  investigation  of  its  affairs  in  the  manner  provided  in  the  two  preceding  ^^Q'lil'i?- 

6  sections.  is94, 317,  §  5.  r.  l.  113,  §  5. 

1906,  204,  §§  1,  3,  5.        190S,  590,  §§  7,  69.        1919,  350,  §§  45,  46,  49. 

1  Section  5.     If,  in  the  opinion  of  the  commissioner,  a  bank  or  its  officers  Commissioner 

2  or  trustees  have  violated  any  law  relative  thereto,  he  may  forthwith  re-  ."mf prosecute 

3  port  such  violation  to  the  attorney  general,  who  shall  forthwith,  in  behalf  ia« 


'iolations  of 
law. 


1852 


BANKS  AND   BANKING. 


[Chap.  167 


Publication  of 
certain  facts. 
1838,  14.  §  6. 
1851,  127,  §  10. 
G.S.  57,  §9. 
1866,  192,  §  7. 
1876,  231,  §  3. 
1378,  253,  I  6. 
P.S.I  16,  §9. 
1894,  317, 
R.  L.  113, 
1906,  204, 
§§  1.3,  5. 
1908,  590, 
§§  8,  69. 
1910,  622, 
1919,  350, 
§§45,46, 
49,  53. 


§9. 


of  tlie  commonwealth,  institute  a  pro.secution  therefor.  If,  in  the  opinion  -i 
of  the  commissioner,  such  bank  is  conducting  any  part  of  its  business  in  5 
an  unsafe  or  unauthorized  manner,  he  shall  direct  in  -nTiting  that  such  6 
unsafe  or  unauthorized  practice  shall  be  discontinued;  and  if  any  such  7 
bank  refuses  or  neglects  to  comply  with  any  such  direction  of  the  com-  8 
missioner,  or  if,  in  the  opinion  of  the  commissioner,  a  trustee  or  officer  of  9 
such  bank  has  abused  his  trust,  or  has  used  his  official  position  in  a  manner  10 
contrary  to  the  interests  of  such  bank  or  its  depositors,  or  has  been  negli-  11 
gent  in  the  performance  of  his  duties,  the  commissioner  may,  in  case  12 
of  a  sa\-ings  bank,  forthwith  report  the  facts  to  the  attorney  general,  who  13 
may,  after  granting  a  hearing  to  said  savings  bank,  trustee  or  oflficer,  14 
institute  proceedings  in  the  supreme  judicial  court,  wliich  shall  have  15 
jurisdiction  in  equity  of  such  proceedings,  for  the  removal  of  one  or  more  16 
of  the  trustees  or  officers,  or  of  such  other  proceedings  as  the  case  may  17 
require;  or  the  commissioner  may,  in  case  of  any  bank,  after  giving  a  18 
hearing  to  the  directors  or  trustees  thereof,  either  report  to  the  share-  19 
holders  thereof,  or,  with  the  WTitten  consent  of  a  board  composed  of  the  20 
state  treasurer,  the  attorney  general  and  the  commissioner  of  corporations  21 
and  taxation,  publish  such  facts  relative  thereto  as  in  his  opinion  the  22 
public  interest  may  require.     •  23 


Books  and 
accounts 


Section  6.  The  commissioner  may  prescribe  the  manner  and  form  of 
ilso  2^1'  1 1'  keeping  the  books  and  accounts  of  a  bank,  the  extent  to  which  they  shall 
p.  s.'iie.'s  39.  be  audited,  and  the  manner  of  safeguarding  the  money  and  securities. 


1894,  317,  §  41. 
R.  L.  113,  §46. 


1906,  204, 
190S,  590, 


•  1,  3,  5. 

!  12,  69. 


1910,  622,  < 
1919,  350,  ! 


i  45,  46,  49. 


Reports  of 

banks. 

Penaltv. 

1834,  190,  §  11. 

R.  S.  36,  §  83. 

1846,49;  86,  §2. 

G.  S.  67,  §  149. 

1866,  192,  §  6. 

1867,  203,  §  2. 
1876,  203,  I  24. 
1878,  253,  I  2. 
P.S.I  16,  §42. 
1894,  317.  §  44. 
R.  L.  113,  I  49. 
1906,  204, 

§§  1,3,5. 
1908,  590, 
§§  13,  69. 


Section  7.     In  addition  to  the  reports  required  by  law,  banks  shall  1 

make  such  other  statements  and  reports  to  the  commissioner  as  he  may  2 

require.    The  commissioner  shall  furnish  blank  forms  for  all  statements  3 

or  reports  required  to  be  made  to  him.     Any  bank  neglecting  to  make  the  4 

returns  required  by  law  or  by  the  commissioner,  or  failing  to  amend  such  5 

report  within  fifteen  days  after  notice  from  him,  shall  forfeit  to  the  com-  6 

monwealth  five  dollars  for  each  day  during  which  such  neglect  continues,  7 

to  be  recovered  by  an  information  in  equity  in  the  name  of  the  attorney  8 

general  at  the  relation  of  the  commissioner,  brought  in  the  supreme  9 

judicial  court  for  Suffolk  county.           1912,97.           1919, 350,  §§  45, 46, 49.  10 


Penalty  for 
failure  to  make 
reports. 
1896,  327. 
R.  L.  113,  §  51. 
1906,  204, 
§§1,3,5. 
1908,  590, 
§§  14,  69. 


Section  8.     An  officer,  agent,  clerk  or  servant  of  a  bank  who  refuses  1 

or  neglects  to  make  a  report  or  statement  lawfully  required  by  the  com-  2 

missioner  or  his  examiners  or  assistants,  shall  be  punished  by  a  fine  of  3 

not  more  than  one  thousand  dollars  or  by  imprisonment  in  the  house  4 

of  correction  for  not  more  than  two  and  one  half  years,  or  both.  5 

1918,257,5  464.  1919,  5;  350,  §§  45,  46,  49.  1920,2. 


Report  to 

general  court. 

1834,  190,  §  11. 

R.  S.  36,  §  83. 

1846,49; 

86,  §  2. 

G.  S.  57,  §  149. 

1866,  192,  §  6. 

1867,  203,  §  2. 
1876,  203,  §  24. 
1878,  253,  §  2. 
P.  S.  116,  §42. 
1894,  317,  §  44. 
R.  L.  113,  §49. 
1906,  204, 

§§  1,3,  5. 


Section  9.     Annually,  on  or  before  the  third  Wednesday  in  January,  1 

the  commissioner  shall  communicate  to  the  general  court  an  abstract  of  2 

his  report  and  such  suggestions  as  he  considers  expedient  relative  to  the  3 

general  conduct  and  condition  of  banks,  and  on  or  before  March  fifteenth  4 

a  statement  of  the  condition  of  every  incorporated  bank,  including  in-  5 

corporated  banks  in  the  hands  of  receivers,  from  which  a  report  has  been  6 

received  for  the  preceding  year,  together  with  such  other  information  7 

relative  to  the  affairs  of  the  said  banks,  as,  in  his  opinion,  the  public  8 

interest  may  require.      i9os,  590,  §§  15, 69.        1910, 393.       i9i9, 350,  §§  45, 40, 49.  9 


Ch.\P.    167.]  B.tNKS  AND  B.\NKING.  1853 

1  Section  10.     Whenever  in  the  opinion  of  the  commissioner  an  exces-  Appraisal  of 

2  sive  loan  has  been  made,  or  is  about  to  be  made  upon  real  estate,  by  a  olfercd'as'' 

3  trust  company  or  co-operative  bank,  he  may  cause  an  appraisal  of  such  fg^^^s. 

■i  real  estate  to  be  made  at  the  expense  of  the  trust  company  or  bank  mak-  Jl'|5^4e'49 

5  ing  the  loan.     One  appraiser  shall  be  named  by  the  commissioner,  one 

6  by  the  trust  company  or  bank,  and  a  third  by  the  two  thus  named.    The 

7  appraisers  shall  determine  the  value  of  the  real  estate  and  certify  the 

8  same  in  writing  to  the  commissioner  and  to  the  trust  company  or  bank. 

9  If  it  shall  appear  from  the  appraisal  that  the  loan  is  excessive,  the  com- 
10  missioner  may  make  such  order  in  relation  thereto  as  he  deems  advisable. 

1  Section  11.    Returns  to  the  commissioner  under  section  twenty-six  Returns,  etc, 

2  of  chapter  one  hundred  and  seventy-two,  records  of  examinations  of  banks  "tToyed. 

3  made  under  section  two  of  this  chapter,  reports  made  under  section  J^g.  350. 

4  twenty-six  of  chapter  one  hundred  and  sixty-eight,  and  reports  made  ^^  '*^' ''®'  ■*^- 

5  under  section  forty-four  of  chapter  one  hundred  and  seventy,  may,  after 

6  five  years  from  the  date  of  their  receipt,  be  destroyed  or  disposed  of  by 

7  order  of  their  lawful  custodian,  and  any  proceeds  received  in  the  course 

8  of  their  disposal  shall  be  paid  to  the  commonwealth. 


regulation  of  business. 

1  Section  12.     No  corporation,  domestic  or  foreign,  and  no  person.  Unauthorized 

2  partnership  or  association  except  savings  banks  and  trust  companies  in-  bfbited^  ^'^° 

3  corporated  under  the  laws  of  this  commonwealth,  or  such  foreign  bank-  ifls.'lfo,'  ^ '' 

4  ing  corporations  as  were  doing  business  in  this  commonwealth,  and  were  jf^^'  113,  |  n" 

5  subject  to  examination  or  supervision  of  the  commissioner  on  June  first,  Ss^i^'l^j: 

6  nineteen  hundred  and  six,  shall  hereafter  make  use  of  anv  sign  at  the  377,'§'i.  ' 

.  »         o  190s  590 

7  place  where  its  business  is  transacted  having  thereon  any  name,  or  other  §§  le,  69.' 

8  words  indicating  that  such  place  or  office  is  the  place  or  office  of  a  sav-  1914,'  eia 

9  ings  bank;  nor  shall  such  corporation,  person,  partnership  or  association  §§^45,^4^6,'49. 

10  make  use  of  or  circulate  any  written  or  printed  or  partly  written  and  op^iJ^Q^'^°°' 

11  partly  printed  paper  whatever,  having  thereon  any  name  or  other  words,  d^^b)  ih. 

12  indicating  that  such  business  is  that  of  a  savings  bank;   nor  shall  any 

13  such  corporation,  person,  partnership  or  association,  or  any  agent  of  a 

14  foreign  corporation  not  having  an  established  place  of  business  in  this 

15  commonwealth,  solicit  or  receive  deposits  or  transact  business  in  the  way 

16  or  manner  of  a  savings  bank,  or  in  such  a  way  or  manner  as  to  lead  the 

17  public  to  believe,  or  as  in  the  opinion  of  the  commissioner  might  lead  the 

18  public  to  believe,  that  its  business  is  that  of  a  savings  bank;   nor  shall 

19  any  person,  partnership,  corporation  or  association  except  co-operative 

20  banks  incorporated  under  the  laws  of  this  commonwealth  and  corporations 

21  described  in  the  first  sentence  of  this  section  hereafter  transact  business 

22  under  any  name  or  title  which  contains  the  word  "  bank  "  or  "  banking  ", 

23  as  descriptive  of  said  business,  or,  if  he  or  it  does  a  banking  business  or 

24  makes  a  business  of  receiving  money  on  deposit,  under  any  name  or  title 

25  containing  the  word  "trust",  as  descriptive  of  said  business. 

1  Section  13.     The  commissioner  or  his  examiners  may  examine  the  Penalty 

2  accounts,  books  and  papers  of  any  corporation,  person,  partnership  or  issjf.  452,  §  1. 

3  association  making  a  business  of  receiving  money  on  deposit,  or  which  \lgl]  In'  5  52 

4  has  the  word  "bank",  "banking",  "banker",  "bankers",  or  "trust"  f906;2MV"' 

5  in  the  name  under  which  its  business  is  conducted,  in  order  to  ascertain  ||7''5''2^' 


1854 


BANKS   AND  B.\NKING. 


[Chap.  167. 


1908,  590, 
§§  17,  69. 
1914,  470. 

1918,  44. 

1919,  350, 

5§  45,46,  49. 
Op.  A.  G 
(1920)  114. 


whether  such  corporation,  person,  partnership  or  association  has  vio-  6 
lated  or  is  violating  any  provision  of  the  preceding  section;  and  any  7 
corporation,  person,  partnership  or  association  refusing  to  allow  such  8 
examination  or  violating  any  provision  of  said  section  shall  forfeit  to  the  9 
commonwealth  one  hundred  dollars  a  day  for  every  day  or  part  thereof  10 
during  which  such  refusal  or  violation  continues.  Any  violation  of  this  11 
or  the  preceding  section  shall  forthwith  be  reported  by  the  commissioner  12 
to  the  attorney  general.  The  said  forfeiture  may  be  recovered  by  an  1.3 
information  or  other  appropriate  proceeding  brought  in  the  supreme  14 
judicial  or  superior  court  in  the  name  of  the  attorney  general.  Upon  15 
such  information  or  other  proceeding  the  coiut  may  issue  an  injunction  IG 
restraining  such  corporation,  person,  partnership  or  association  from  17 
furtlier  prosecution  of  its  business  within  the  commonwealth  during  the  18 
pendency  of  such  proceeding  or  for  all  time,  and  may  make  such  other  19 
orders  or  decrees  as  equity  and  justice  may  require.  20 


Joint  deposits 

regulated. 

1911,228. 


Section  14.     When  a  deposit  is  made  in  any  bank,  in  the  names  of  1 

two  persons,  payable  to  either,  or  payable  to  either  or  the  survivor,  such  2 

deposit,  or  any  part  thereof,  or  interest  or  dividend  thereon,  if  not  then  3 

attached  at  law  or  in  equity  in  a  suit  against  either  of  said  persons,  may  4 

be  paid  to  either  of  said  persons,  whether  the  other  be  living  or  not,  and  5 

such  payment  shall  discharge  the  bank  making  such  payment  from  its  6 

obligation,  if  any,  to  such  other  person  or  to  his  legal  representatives  for  7 

or  on  accomit  of  such  deposit.  8 


Joint  deposits, 
interest  on. 
1915,  93. 


Section  15.  The  bank  may  receive  deposits  on  the  accounts  provided  1 
for  in  the  preceding  section  to  the  amount  of  two  thousand  dollars,  and  2 
may  allow  interest  upon  such  deposits  and  upon  the  interest  accumulated  3 
thereon  until  the  principal  with  the  accrued  interest  amounts  to  four  4 
thou.sand  dollars,  and  thereafter  upon  no  greater  amount  than  four  5 
thousand  dollars.  Persons  having  a  deposit  as  provided  for  in  the  pre-  6 
ceding  section  may  also  make  deposits  in  their  individual  names,  but  the  7 
total  amount  of  such  deposits,  both  joint  and  individual,  shall  not  exceed  8 
two  thousand  dollars,  and  the  bank  may  allow  interest  upon  such  deposits  9 
and  upon  the  interest  accumulated  thereon  until  the  principal  with  the  10 
accrued  interest  on  all  said  accounts  amounts  to  four  thousand  dollars,  1 1 
and  thereafter  upon  no  greater  amount  than  four  thousand  dollars.  12 


Interest  on 
sums  deposited 
at  intervals. 
1919,  37,  §  1. 


Section  16.     Savings  banks  and  trust  companies  in  their  savings  de-  1 

partments  may  contract,  on  terms  to  be  agreed  upon,  for  the  deposit  at  2 

intervals  within  any  period  of  twelve  months,  of  sums  of  money  in  the  3 

aggregate  not  in  excess  of  the  statutory  limit  on  deposits  in  savings  banks,  4 

and  for  the  payment  of  interest  on  the  same  at  a  rate  not  more  than  one  5 

per  cent  less  than  the  rate  of  their  last  regular  dividend  on  savings  de-  6 

posits.     A  sum  thus  accumulated,  if  left  in  such  a  depository  as  a  regular  7 

savings  deposit  within  fifteen  days  after  the  date  on  which  money  or-  8 

dinarily  begins  to  draw  interest,  may,  if  the  depository  so  provides,  draw  9 

interest  from  such  prior  date.  10 


Dividends  on 
deposits. 
Computation 
thereof  when 
interest  day 
falls  on  Sun- 
day or  holiday. 


Section  17.  Dividends  or  interest  on  deposits  in  the  savings  depart- 
ment of  trust  companies  or  in  savings  banks  may  be  declared  and  paid  for 
periods  of  not  less  than  one  month  or  more  than  six  months,  as  deter- 
mined by  their  by-laws,  from  income  which  has  been  earned  and  col- 


Chap.  1G7.]  banks  and  banking.  1855 

5  lected  during  the  next  preceding  six  months  but  such  dividends  or  in-  i9i9,  ne,  §  2: 

6  terest,  whenever  paid,  shall  not  exceed  the  average  monthly  income  of  1926. 3S:  311. 

7  the  preceding  six  months'  period.     In  the  computation  of  such  dividends  aoig)'  n'5. 

8  or  interest,  when  the  day  on  which  deposits  in  any  such  savings  depart-  ^'^20)  34', 

9  ment  or  savings  bank  begin  to  draw  interest,  as  provided  in  its  by-laws 

10  or  regulations,  falls  on  a  Sunday  or  a  legal  holiday,  deposits  made  on 

11  the  next  succeeding  business  day  and  remaining  on  deposit  through 

12  the  balance  of  the  monthly  period,  may  be  construed  as  having  been 

13  on  deposit  one  full  month,  within  the  meaning  of  this  section,  section 

14  forty-seven  of  chapter  one  hundred  and  sixty-eight  and  section  sixty- 

15  seven  of  chapter  one  hundred  and  seventy-two. 

1  Section  IS.     An  officer,  agent,  clerk  or  servant  of  a  trust  company  or  Payment  of 

2  savings  bank  who  pays  or  authorizes  the  payment  of  any  dividend  or  in-  dh^dends 

3  terest  unless  the  same  has  been  earned  and  collected  as  provided  in  the  penaity.'^'^' 

4  preceding  section  shall  be  punished  by  a  fine  of  not  more  than  one  thou-  ^^^^-  ^~^'  ^  -■ 

5  sand  dollars  or  by  imprisonment  for  not  more  than  six  months. 


1  Section  19.     A  depositor's  vouchers  may  be  returned  by  mailing  the  Return  of 

2  same  to  him,  at  his  last  known  address,  postage  prepaid,  and  such  de-  no*"^  "" 

3  positor  may,  when  required  to  notify  the  bank,  give  notice  in  like  manner. 


*4otice3. 
1912,  27: 


1  Section  20.     When  a  pass  book  issued  by  a  savings  bank,  a  co-operative  Lost  pass 

2  bank  or  the  savings  department  of  a  trust  company  has  been  lost,  stolen  iSosf'sgo.  5  40. 

3  or  destroyed,  the  person  in  whose  name  it  was  issued  or  his  legal  repre-  JgJI;  171'  ^  '^■ 

4  sentative,  may  make  written  application  to  such  bank,  for  payment  of 

5  the  amount  of  the  deposit  represented  by  said  book  or  for  the  issuance  of 

6  a  duplicate  book  therefor.    Thereupon  with  the  written  consent  of  the 

7  bank,  he  may  give,  or  authorize  the  bank  at  his  expense  to  give,  public 

8  notice  of  such  application  by  advertising  the  same  at  least  once  a  week  for 

9  three  successive  weeks  in  a  newspaper  published  in  or  nearest  to  the  town 

10  where  such  bank  is  situated.     If  such  book  shall  not  be  presented  to  said 

1 1  bank  within  thirty  days  after  the  date  of  the  first  advertisement,  as  af ore- 

12  said,  the  bank  shall,  upon  proof  that  such  notice  has  been  given,  pay  the 

13  amount  due  on  said  book  or  issue  a  duplicate  book  therefor;  and  upon 

14  such  payment  or  delivery  of  a  new  book,  ail  liability  of  the  bank  on 

15  account  of  the  original  book  shall  cease. 

liquidation. 

1  Section  21.     Receivers  of  insolvent  savings  banks  or  trust  com-  Receivers  to 

2  panies,  at  the  expiration  of  one  year  after  the  final  settlement  ordered  by  cfiimed  money. 

3  the  court,  shall  report  to  the  court  the  names  and  residences,  if  known,  of  p*  s^'ne,  §  44 

4  the  persons  entitled  to  money  or  dividends  from  the  estate  of  such  cor-  Jfsj'lss 

5  porations  remaining  in  their  hands  uncalled  for,  with  the  amount  due  to  i8S4;72 

6  each.     The  court  shall  thereupon  order  a  notice  to  be  given  by  the  re-  R.  l'.  ns!  §50: 

7  ceivers,  and,  upon  the  expiration  of  one  year  after  the  time  of  giving  such  igoii!  204', 

8  notice,  the  receivers  shall  in  like  manner  report  the  amounts  still  uncalled  ilos,  Iba 

9  for.     Unless  cause  shall  appear  for  decreeing  otherwise,  such  amounts  1919%^), 

10  shall  then  be  ordered  to  be  paid  to  the  commonwealth,  and  schedules  §§45,46,49. 

1 1  signed  by  the  receivers  shall  at  the  same  time  be  deposited  with  the  state 

12  treasurer  and  state  auditor,  setting  forth  the  decree  of  the  court  and  the 

13  names  and  residences,  so  far  as  known,  of  the  persons  entitled  thereto 

14  alphabetically  arranged,  antl  the  amount  due  to  each.     The  auditor  shall 


1856 


BANKS   AND   B-USTKING. 


[Chap.  167. 


forthwith  cause  notice  of  such  deposit  to  be  mailed  to  such  persons,  and,  15 
upon  certification  by  him  that  a  claimant  is  entitled  to  any  part  of  said  16 
deposit,  it  shall  be  paid  in  the  same  manner  as  other  claims  against  the  17 
commonwealth.  Upon  the  payment  to  the  commonwealth  of  such  18 
unclaimed  money  or  dividends,  the  receivers  shall  deposit  with  the  com-  19 
missioner  all  books  and  papers  of  such  insolvent  savings  banks  or  trust  20 
companies,  including  those  relative  to  their  receivership,  which  shall  be  21 
preserved  hy  him.  22 


when  commis- 
sioner may 
take  possession 
of  bank. 
Voluntary 
dissolution. 

1838,  14,  §  S. 

1839,  27,  I  2. 
1S51,  127,  §  5. 
G.  S.  57,  §  7. 
1866,  192,  §  5. 
1876,  231,  §3. 
P.  S.  116,  §  6. 
1894,  317,  §  6. 
R.  L.  113,  §  6. 
1906.  204, 
§§1,3,5. 
1908.  590, 

§§  9.  69. 
1910,  399, 
§§2,17. 
1912.472,  §2. 
1919,  3.50, 
§§45,  46,  49. 
211  Mass.  207. 
Op.  A.  G. 
(1920)  152,  309. 


Sectiox  22.  Whenever  it  shall  appear  to  the  commissioner  that  any  1 
bank  has  violated  its  charter  or  any  law  of  the  commonwealth,  or  is  con-  2 
ducting  its  business  in  an  unsafe  or  unauthorized  manner,  or  that  its  capi-  3 
tal  is  impaired,  or  if  it  shall  refuse  to  submit  its  books,  papers  and  concerns  4 
to  the  inspection  of  the  commissioner  or  of  his  duly  authorized  agents,  or  5 
if  any  officer  of  such  bank  shall  refuse  to  be  examined  on  oath  by  the  com-  6 
missioner  or  his  duly  authorized  assistants  touching  its  concerns,  or  if  it  7 
shall  suspend  payment  of  its  obligations,  or  if  from  an  examination  or  8 
from  a  report  pro^■ided  for  by  law  the  commissioner  shall  have  reason  to  9 
conclude  that  such  bank  is  in  an  unsound  or  unsafe  condition  to  transact  10 
the  business  for  which  it  is  organized,  or  that  it  is  unsafe  and  inexpe-  11 
dient  for  it  to  continue  business,  the  commissioner  may  take  possession  12 
forthwith  of  the  property  and  business  of  such  bank  and  may  retain  13 
possession  thereof  until  the  bank  shall  resume  business  or  until  its  affairs  14 
shall  finally  be  liquidated  as  herein  provided.  LS 

Subject  to  the  written  approval  of  the  commissioner,  any  bank,  at  a  16 
meeting  specially  called  to  consider  the  subject,  may  vote  to  dissolve  the  17 
corporation  and  liquidate  its  affairs;  provided,  that  such  a  vote  is  passed  18 
by  at  least  two  thirds  of  the  trustees  or  shareholders  in  a  savings  bank  10 
or  co-operative  bank  or  by  stockhoklers  of  a  trust  company  representing  20 
at  least  two  thirds  of  its.  outstanding  capital  stock.  A  committee  of  21 
three  trustees,  shareholders  or  stockliolders  shall  thereupon  be  elected,  22 
and,  under  such  regulations  as  may  be  prescribed  by  the  commissioner,  23 
shall  liquidate  the  assets,  and  after  satisfying  all  debts  of  the  corporation  24 
shall  distribute  the  remaining  proceeds  among  those  entitled  thereto  in  25 
proportion  to  their  respective  interests  therein.  26 


Possession  of 
commissioner; 
effect  and 
subsequent 
procedure. 
1910,  399,  §  3. 
1913,  177. 
1919,  350, 
§§  45,  46,  49. 


Section  23.     Upon  taking  possession  of  the  property  and  business  of  1 

a  bank,  the  commissioner  shall  forthwith  give  notice  thereof  to  all  banks,  2 

trust  companies,  associations  and  individuals  holding  or  having  pos-  3 

session  of  any  assets  of  such  bank.     No  bank,  trust  company,  association  4 

or  individual,  knowing  that  the  commissioner  has  taken  such  possession,  5 

or  having  been  notified  thereof  as  aforesaid,  shall  have  a  lien  or  charge  for  6 

any  payment,  advance  or  clearance  thereafter  made,  or  liability  there-  7 

after  incurred,  against  any  of  the  assets  of  the  bunk  of  whose  property  8 

and  business  the  commissioner  shall  have  taken  possession  as  aforesaid.  9 

Such  bank  may,  with  the  consent  of  the  commissioner,  resume  business  10 

upon  such  conditions  as  he  may  approve;  provided,  that  if,  in  his  judg-  11 

ment  it  is  for  the  public  interest  so  to  do,  he  may  retain  in  behalf  of  the  12 

bank  the  control,  prosecution  or  defence  of  any  undetermined  suits  or  13 

claims  brought  in  behalf  of  or  against  the  bank  under  section  twenty -five  14 

during  the  time  when  the  bank  was  in  his  charge,  and  the  expense  of  pros-  15 

ecuting  or  defending  such  suits  or  claims  shall  be  paid  from  the  funds  of  16 

such  bank.  17 


Chap.  167.]  b.\nks  astj  b.\nking.  1857 

1  Section  24.     Upon  taking  possession  of  the  property  and  business  of  ^"^''^^'°l 

2  such  bank,  the  commissioner  may  collect  moneys  due  to  the  bank,  and  ■"  p™|ession. 

1  11  **  1  1     '    •  1     1       11  1    1910'  399.  §  4. 

3  do  all  acts  necessary  to  conserve  its  assets  and  busmess,  and  shall  proceed  laio,  sso, 

4  to  liquidate  its  affairs  as  hereinafter  provided.     He  shall  collect  all  debts  6p.  a.  g'. 

5  due  and  claims  belonging  to  it,  and  upon  the  order  or  decree  of  the  su-  '^^"°'  ^^*' 

6  preme  judicial  court,  or  any  justice  thereof,  may  sell  or  compound  all  bad 

7  or  doubtful  debts,  and  on  like  order  or  decree  may  sell  all,  or  any  part  of, 

8  the  real  and  personal  property  of  the  bank  on  such  terms  as  the  court 

9  shall  direct;  and  he  may,  if  necessary  to  pay  the  debts  of  any  such  trust 
10  company,  enforce  the  individual  liability  of  the  stockholders. 

1  Section  25.    To  execute  and  perform  the  powers  and  duties  conferred  ^ndTaV™ 

2  upon  him,  the  commissioner  may,  in  the  name  of  any  such  bank,  prosecute  jgjPQ°R9g''V  - 

3  and  defend  all  suits  and  other  legal  proceedings  and  may,  in  the  name  of  i9i9,'  aso! 

4  the  bank,  execute,  acknowledge  and  deliver  all  deeds,  assignments,  re- 

5  leases  and  other  instruments  necessary  and  proper  to  effectuate  any  sale 

6  of  real  or  personal  property  or  any  compromise  authorized  by  the  court; 

7  and  any  deed  or  other  instrument,  executed  pursuant  to  the  authority 

8  hereby  given,  shall  be  valid  and  effectual  for  all  purposes  to  the  same 

9  extent  as  though  executed  by  the  officers  of  the  bank  by  authority  of  its 

10  board  of  directors  or  of  its  stockholders,  or  by  the  individual  banker  per- 

1 1  sonally.     In  case  any  of  the  real  property  so  sold  is  located  in  a  county 

12  other  than  that  where  the  application  to  the  court  for  leave  to  sell  the 

13  same  is  made,  the  commissioner  shall  cause  a  certified  copy  of  the  order 

14  or  decree  of  the  court  authorizing  or  ratifying  such  sale  to  be  filed  in  the 

15  registry  of  deeds  for  the  district  where  the  said  real  property  lies. 

1  Section  26.     The  commissioner  may,  under  his  liand  and  official  seal,  may^potnt"^ 

2  appoint'agents  to  assist  liim  in  the  duty  of  liquidation  and  distribution.  ^f^°J%\° 

3  The  certificates  of  the  appointment  of  such  agents  shall  be  filed  in  the  '9'°'  p^'  §  s. 

4  office  of  the  commissioner,  and  certified  copies  thereof  shall  be  filed  in  the  §§  45, 46,' 49. 

5  office  of  the  clerk  of  the  supreme  judicial  court  for  the  county  where  the 

6  principal  office  of  such  bank  is  located.     The  commissioner  may  from  time 

7  to  time  authorize  such  agents  to  perform  such  duties  connected  with  said 

8  liquidation  and  distribution  as  he  deems  proper.     The  commissioner  may 

9  procure  such  expert  assistance  and  advice  as  he  considers  necessary  in  the 

10  liquidation  and  distribution  of  the  assets  of  such  bank,  and  he  may  re- 

1 1  tain  such  of  the  officers  or  employees  of  the  bank  as  he  deems  necessary. 

12  The  commissioner  shall  require  from  a  special  agent  and  from  such  as- 

13  sistants  such  security  for  the  faithful  discharge  of  their  duty  as  he  deems 

14  proper. 

1  Section  27.     Upon  taking  possession  of  the  property  and  assets  of  such  inventorj-. 

2  bank,  the  commissioner  shall  make  an  inventory  in  dupHcate  of  the  as-  r  s.'ii6,§7.' 

3  sets  of  the  bank,  one  to  be  filed  in  his  office  and  one  in  the  office  of  the  ^^t  HI]  |  ?; 

4  clerk  of  the  supreme  judicial  court  for  the  county  where  the  principal  §§°f;|,°^; 

5  office  of  the  bank  is  located.  1908, 590,  §§  10, 09. 

1910,  399,  §§  7,  17.  1919,  350,  §§  45,  40,  40.  Op.  A.  G.  (1920)  152. 

1  Section  28.     The  commissioner  shall  publish  weekly  for  three  con-  Notice  and 

2  secutive  months,  in  such  newspapers  as  he  directs,  a  notice  caUing  on  all  ffims" 

3  persons  who  may  have  claims  against  such  bank  to  present  the  same  to  mg'.llo,  ^"^^ 

4  the  commissioner  and  to  make  legal  proof  thereof  at  a  place  and  in  a  time,  2n'*Mas''s'.to7. 

5  not  earlier  tlian  the  last  day  of  pubUcation,  to  be  therein  specified.     The  ^^^om^s  275 

6  commissioner  shall  mail  a  similar  notice  to  all  persons  whose  names  ap- 


1858 


B.USTKS  AND  BANKING. 


[Ch.\p.  167. 


pear  as  creditors  upon  the  books  of  the  bank,  so  far  as  their  addresses  7 
are  known.  If  the  commissioner  doubts  the  justice  and  validity  of  any  8 
claim,  he  may  reject  the  same  and  serve  notice  of  such  rejection  upon  9 
the  claimant  either  personally  or  by  mail.  An  affidavit  of  service  of  such  10 
notice,  wliich  shall  be  prima  facie  evidence  thereof,  shall  be  filed  with  the  11 
commissioner.  An  action  upon  the  claim  so  rejected  shall  not  be  enter-  12 
tained  unless  brought  within  six  months  after  such  service.  Claims  pre-  13 
sented  after  the  expiration  of  the  time  specified  in  the  notice  to  creditors  14 
shall  be  entitled  to  share  in  the  distribution  only  to  the  extent  of  the  15 
assets  in  the  hands  of  the  commissioner  equitably  apphcable  thereto.       16 


List  of  claims. 
1910,  399.  §  9. 
1919,  350, 
§§  45,  46,  49. 


Section  29.  Upon  the  expiration  of  the  time  fixed  for  the  presenta-  1 
tion  of  claims,  the  commissioner  shall  make  in  duplicate  a  full  and  com-  2 
plete  list  of  the  claims  presented,  including  and  specifying  such  claims  3 
as  have  been  rejected  by  liim.  One  of  said  lists  shall  be  filed  in  his  office  4 
and  the  other  in  the  office  of  the  clerk  of  the  supreme  judicial  court  for  5 
the  county  where  the  principal  office  of  the  bank  is  located.  Thereafter  6 
the  commissioner  shall  make  and  file  in  said  offices,  at  least  fifteen  days  7 
before  every  application  to  the  court  for  leave  to  declare  a  dividend,  a  8 
supplementary  list  of  the  claims  presented  since  the  last  preceding  list  9 
was  filed,  including  and  specifying  such  claims  as  have  been  rejected  by  10 
him,  and,  in  any  event,  he  shall  make  and  file  the  said  list  at  least  once  11 
in  every  six  months  after  the  filing  of  the  original  list,  so  long  as  he  re-  12 
mains  in  possession  of  the  property  and  business  of  the  bank.  Said  in-  13 
ventory  and  lists  shall  be  open  to  inspection  at  all  reasonable  times.        14 


Fees  and 
expenses. 
1910,  399,  §  10. 
1919,  350, 
§§  45,  46,  49. 


Section  30.    The  compensation  of  the  special  agents,  counsel,  em-  1 

ployees  and  assistants,  and  all  expenses  of  supervision  and  liquidation,  2 

shall  be  fixed  by  the  commissioner,  subject  to  the  approval  of  the  su-  3 

preme  judicial  court  for  the  county  where  the  principal  office  of  such  bank  4 

is  located,  on  notice  to  such  bank,  and,  upon  the  certificate  of  the  com-  5 

missioner,  shall  be  paid  out  of  the  funds  of  the  baiak  in  his  hands.  6 


Dividends: 
objections 
to  claims. 
1910,  399,  §  11. 
1919,  350, 
§§  45,  46,  49. 
Op.  A.  G. 
(1920)  265,  275. 


Section  31.  At  any  time  after  the  expiration  of  the  'date  fixed  for  1 
the  presentation  of  claims,  the  supreme  judicial  court,  on  application  2 
of  the  commissioner,  may  authorize  him  to  declare  out  of  the  funds  re-  3 
maining  in  his  hands,  after  the  payment  of  expenses,  one  or  more  divi-  4 
dends,  and,  after  the  expiration  of  one  year  from  the  first  publication  of  5 
notice  to  creditors,  the  commissioner  may  declare  a  final  di\idend,  such  6 
dividends  to  be  paid  to  such  persons,  in  such  amounts,  and  upon  such  7 
notice  as  may  be  directed  by  the  supreme  judicial  court  for  the  county  8 
where  the  principal  office  of  such  bank  was  located,  or  as  may  be  directed  9 
by  a  justice  of  said  court.  Objections  to  any  claim  not  rejected  by  the  10 
commissioner  may  be  made  by  any  person  interested  by  fifing  a  copy  of  1 1 
the  objections  with  the  commissioner,  who  shall  present  the  same  to  the  12 
supreme  judicial  court  at  the  time  of  the  next  application  for  leave  to  13 
declare  a  dividend.  The  court  to  which  such  apphcation  is  made  shall  14 
thereupon  chspose  of  said  objections,  or  may  refer  them  to  a  master,  and  15 
should  the  objections  to  any  claim  be  sustained  by  the  court  or  by  the  16 
master  no  dividend  thereon  shall  be  paid  by  the  commissioner  until  the  17 
claimant  shall  have  estabfished  liis  claim  by  the  judgment  of  a  court  IS 
of  competent  jurisdiction.  The  court  may  make  proper  provision  for  19 
unproved  or  unclaimed  deposits.  20 


CbL\P.    167.]  B.VNKS  Aira   B.USTKING.  1859 

1  Section  32.     Should  any  bank,  at  the  time  when  the  commissioner  Disposition 

2  takes  possession  thereof,  have  in  its  possession  for  safe  keeping  and  deposSed* 

3  storage,  any  jeweh-y,  pLate,  money,  secm-ities,  vahiable  papers  or  other  rgio.'ssJg!'!  12. 

4  valuable  personal  property,  or  should  it  have  rented  any  box,  safes,  or  |slf5^/6'49 

5  safe  deposit  boxes,  or  any  part  thereof,  for  the  storage  of  property  of  anj^  ?m-4)  51'  2-'3 

6  kind,  the  commissioner  maj'  at  any  time  after  taking  possession  as  afore- 

7  said  cause  to  be  mailed  to  the  person  claiming  or  appearing  upon  the 

8  books  of  the  bank  to  be  the  owner  of  such  property,  or  to  the  person  in 

9  whose  name  the  safe,  vault,  or  box  stands,  a  written  notice  in  a  securely 

10  closed  postpaid,  registered  letter,  directed  to  such  person  at  his  post  office 

1 1  address  as  recorded  upon  the  books  of  the  bank,  notif\'ing  such  person  to 

12  remove,  within  a  period  fixed  by  said  notice  and  not  less  than  sixty  days 

13  from  the  date  thereof,  all  such  personal  property;  and  upon  the  date  fixed 

14  by  said  notice,  the  contract,  if  any,  between  such  persons  and  the  bank 

15  for  the  storage  of  said  property,  or  for  the  use  of  said  safe,  vault  or  box, 

16  shall  cease  and  determine,  and  the  amount  of  the  unearned  rent  or 

17  charges,  if  any,  paid  by  such  person  shall  become  a  debt  of  the  bank  to 

18  such  person.    If  the  property  be  not  removed  witliin  the  time  fixed  by  the 

19  notice,  the  commissioner  may  make  such  disposition  of  said  property  as 

20  the  supreme  judicial  court,  upon  application  thereto,  may  direct;   and 

21  thereupon  the  commissioner  may  cause  any  safe,  vault  or  box  to  be 

22  opened  in  his  presence,  or  in  the  presence  of  one  of  his  special  agents 

23  and  of  a  notary  public  not  an  officer  or  in  the  employ  of  the  bank,  or  of 

24  the  commissioner,  and  the  contents  thereof,  if  any,  to  be  sealed  up  by 

25  such  notary  public  in  a  package  upon  which  the  notary  public  shall  dis- 

26  tinctly  mark  the  name  and  address  of  the  person  in  whose  name  such 

27  safe,  vault  or  box  stands  upon  the  books  of  the  bank,  and  shall  attach 

28  thereto  a  list  and  description  of  the  property  therein.    The  package  so 

29  sealed    and  addressed,  together  with  the   list  and  description,  may  be 

30  kept  by  the  commissioner  in  one  of  the  general  safes  for  boxes  of  the 

31  bank  until  delivered  to  the  person  whose  name  it  bears,  or  may  other- 

32  wise  be  disposed  of  as  directed  by  the  court. 

1  Section  33.     Wlienever  any  bank  of  whose  property  and  business  the  Application 

2  commissioner  has  taken  possession  deems  itself  aggrieved  thereby,  it  may,  enidlTpro- 

3  at  any  time  within  ten  days  after  such  taking  possession,  apply  to  the  comnSiOTer. 

4  supreme  judicial  court  for  the  county  where  the  principal  office  of  the  }^}§'  ||^'  ^  '^• 

5  bank  is  located  to  enjoin  further  proceedings;  and  said  court,  after  citing  §§  *5, 40. 49. 

6  the  commissioner  to  show  cause  why  further  proceedings  should  not 

7  be  enjoined,  and  after  hearing  the  allegations  and  proofs  of  the  parties  and 

8  determining  the  facts,  may,  upon  the  merits,  dismiss  such  application  or 

9  may  enjoin  the  commissioner  from  further  proceedings  and  direct  lum 
10  to  surrender  the  said  business  and  property  to  the  bank. 

1  Section  34.     ^\^lenever  the  commissioner  has  paid  to  every  depositor  stockholders' 

2  and  creditor  of  such  corporation,   not  including  stockholders,  whose  iqTo.'md.  §  14. 

3  claims  as  such  creditors  or  depositors  have  been  duly  approved  and  §§4'5,^«,'49. 

4  allowed,  the  full  amount  of  such  claims,  and  has  made  proper  provision 

5  for  unclaimed  and  unpaid  deposits  or  dividends,  and  has  paid  all  ex-penses 

6  of  the  liquidation,  he  shall  call  a  meeting  of  the  stockliolders  of  the  cor- 

7  poratlon  by  mailing  notice  thereof,  not  less  than  thirty  days  prior  to  the 

8  date  of  the  meeting,  to  each  stockliolder  of  record  whose  address  is  known, 

9  and  also  by  publisliing  notice  of  the  meeting  once  a  week  for  four  succes- 
10  sive  weeks  in  some  newspaper  of  general  circulation  published  in  the 


1860 


B.\NKS  AND   B.VNKING. 


[Ch.\p.  167. 


county  where  the  principal  office  of  the  corporation  is  located,  the  first 
publication  to  be  not  less  than  tliirty  clays  before  the  date  appointed 
for  the  meeting.  At  such  meeting  the  stockliolders  shall  determine 
whether  the  commissioner  shall  be  continued  as  liquidator  and  shall  wind 
up  the  affairs  of  the  corporation,  or  whether  an  agent  or  agents  shall  be 
elected  therefor,  and  in  so  determining  the  stockliolders  shall  vote  by 
ballot,  in  person  or  by  proxy,  each  share  of  stock  entitling  the  holder  to 
one  vote;  and  a  majority  of  the  stock  shall  be  necessary  for  the  deter- 
mination. If  it  is  determined  to  continue  the  liquidation  under  the 
commissioner,  he  shall  complete  the  liquidation  and,  after  paying  the 
expenses  thereof,  distribute  the  proceeds  remaining  among  the  stock- 
holders in  proportion  to  their  several  holdings  of  stock,  in  such  manner 
and  upon  such  notice  as  may  be  directed  by  the  supreme  judicial  court. 
If  it  is  determined  to  appoint  an  agent  or  agents  to  liquidate,  the  stock- 
holders shall  thereupon  select  such  agent  or  agents  by  ballot,  a  majority 
of  the  stock  present  and  voting,  in  person  or  by  proxy,  being  necessary 
to  a  choice.  Such  agent  or  agents  shall  execute  and  file  with  the  com- 
missioner a  bond  to  the  state  treasiuer  in  such  amount,  with  such  sureties 
and  in  such  form  as  shall  be  approved  by  the  commissioner,  conditioned 
for  the  faithful  performance  of  all  the  duties  of  his  or  their  trust,  and 
thereupon  the  commissioner  shall  transfer  and  deliver  to  such  agent  or 
agents  all  undivided,  uncollected  or  other  assets  of  the  corporation  then 
remaining  in  Iiis  hands.  Upon  such  transfer  and  delivery,  the  commis- 
sioner shall  be  discharged  from  all  fiuther  liability  to  such  corporation. 
Said  agent  or  agents  shall  convert  into  cash  the  assets  coming  into  his 
or  their  possession  and  shall  account  for  and  make  distribution  of  the 
property  of  the  corporation  as  provided  in  the  case  of  distribution  by 
the  commissioner,  except  that  the  expenses  thereof  shall  be  subject  to 
the  direction  and  control  of  the  supreme  judicial  com-t.  In  case  of  the 
death,  removal  or  refusal  to  act  of  any  such  agents,  the  stockholders,  on 
the  like  notice,  to  be  given  by  the  commissioner  upon  proof  of  such 
death,  removal  or  refusal  to  act  being  filed  with  him,  and  by  the  like  vote 
hereinbefore  provided,  may  elect  a  successor,  who  shall  have  the  same 
powers  and  be  subject  to  the  same  liabilities  and  duties  as  the  agent 
originally  elected. 


11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 


Disposition 
of  funds 
remaining  in 
hands  of 
commissioner. 
1910,  399,  §  15 
1919.  350, 
§§45,  46,  49. 


Section  35.     Dividends  and  unclaimed  deposits  remaining  unpaid  in  1 

the  possession  of  the  commissioner  for  six  months  after  the  order  for  final  2 

distribution  shall  be  deposited  by  him  in  one  or  more  national  banks,  3 

savings  banks  or  trust  companies  to  the  credit  of  the  commissioner  in  liis  4 

official  capacity,  in  trust  for  the  several  depositors  with,  and  creditors  of,  5 

the  liquidated  bank  from  which  they  were  received,  according  to  the  6 

several  interests  of  the  persons  entitled  thereto.     The  commissioner  shall  7 

state  annually  in  his  report  to  the  general  court  the  names  of  banks  so  8 

taken  possession  of  and  liquidated  and  the  amounts  of  unclaimed  and  9 

unpaid  deposits  or  dividends  with  respect  to  every  such  bank.    The  com-  10 

missioner  may  pay  over  the  money  so  held  by  him  to  the  persons  respec-  1 1 

tively  entitled  thereto  upon  being  furnished  satisfactory  evidence  of  their  12 

right  to  the  same.     In  cases  of  doubt  or  of  conflicting  claims,  he  may  13 

require  an  order  of  the  supreme  judicial  court  authorizing  and  direct-  14 

ing  the  payment  thereof.     He  may  apply  the  interest  earned  by  the  15 

moneys  so  held  or  deposited  by  him  toward  defraying  the  expenses  in-  16 

curred  in  the  payment  and  distribution  of  such  unclaimed  deposits  or  17 

dividends  to  the  depositors  and  creditors  entitled  to  receive  the  same,  18 


Ch.\P.    167.]  BANKS   AND    B.ANKING.  1861 

19  and  he  shall  include  in  his  annual  report  to  the  general  court  a  statement 

20  of  the  interest  earned  by  such  unclaimed  dividends  and  deposits. 

1  Section  36.    The  supreme  judicial  court,  or  any  justice  thereof,  shall  fg\o''39'J''5'i(j 

2  have  jurisdiction  in  equity  to  enforce  the  provisions  of  sections  twenty- 

3  two  to  tliirty-five,  inclusive,  and  to  act  uj3on  all  applications  and  in  all 

4  proceedings  thereunder. 

FOREIGN  BANKS. 

1  Section  37.     No  foreign  banking  association  or  corporation  shall  Certain  foreign 

_  ,.  ...^  V,  -i-i  •!  -n  banking  asso- 

2  transact  busmess  in  this  commonwealth  until  it  has  received  a  certifacate  ciationa  not 

3  from  the  board  of  bank  incorporation,  authorizing  it  so  to  do.     The  said  without  per- 

4  board  may  grant  such  certificate  conditioned  upon  the  performance  of  i9ob,°347,  §  i. 

5  such  requirements  as  to  auditing  as  said  board  may  prescribe.     Any  \lol]  fg?;  1 1 

6  foreign  banking  association  or  corporation  transacting  business  in  this  JgJsiHo, 

7  commonwealth  shall  be  subject  to  the  supervision  of  the  commissioner,  ||  ^^-j?, 

8  and  shall  annually,  witliin  thii-ty  days  after  the  last  .business  day  of 

9  October,  and  at  other  times  during  each  year  on  any  past  day  to  be  spec- 

10  ified  by  the  commissioner,  make  to  him  in  such  form  as  may  be  prescribed 

11  by  him  a  return,  signed  and  sworn  to  by  the  treasurer,  or  the  corre- 

12  sponding  officer,  of  the  corporation,  showing  accurately  the  condition 

13  thereof  at  the  close  of  business  on  said  day.     The  president  and  a 

14  majority  of  the  directors  shall  certify  on  oath  that  the  report  is  correct 

15  according  to  their  best  knowledge  and  belief. 

1  Section  38.      The  commissioner  shall  annually  at  least,  and  as  much  Annual 

2  oftener  as  he  deems  expedient,  examine,  either  personally  or  by  a  com-  i9o™'347!T2. 
3.  petent  examiner  appointed  by  him,  every  such  association  or  corporation  §§  «,^4(?,'49. 

4  and  thoroughly  inspect  and  examine  its  affairs  to  ascertain  its  financial 

5  condition  and  wliether  it  has  complied  with  the  law.     The  proper  charges 

6  incurred  by  reason  of  any  such  examination  shall  be  paid  by  the  associa- 

7  tion  or  corporation  examined. 

1  Section  39.     For  the  purposes  aforesaid,  the  commissioner  or  the  commisaioner 

2  person  making  the  examination  shall  have  free  access  to  the  vaults,  tovauftsanT 

3  books  and  papers  of  any  such  association  or  corporation,  and  may  sum- 

4  mon  the  directors,  officers  or  agents  thereof,  and  such  other  witnesses  as  jl^f  |^| 

5  he  deems  necessary,  for  examination  relative  to  the  affairs,  transactions  ||/'A^= 

6  and  condition  of  such  association  or  corporation,  and  for  that  purpose  ima^sso, 

7  is  empowered  to  administer  oaths. 

1  Section  40.     If,  upon  examination,  it  appears  that  such  association  Proceedings 

2  or  corporation  is  insolvent,  or  that  its  capital  is  impaired,  or  that  its  con-  [nsolvinT'cOT- 

3  dition  is  such  as  to  render  the  continuance  of  its  business  hazardous  to  So^ng  bufi™"" 

4  the  public  or  to  those  having  funds  in  its  custody,  the  commissioner  Jgg^'pS.  201, 

5  shall  apply,  or,  if  such  association  or  corporation  appears  to  have  exceeded  ||i •  A  ^' 
G  its  powers  or  failed  to  comply  with  any  provision  of  law,  may  apply  to  loia.  350, 

7  thesupreme  judicial  court,  which  shall  have  jurisdiction  in  equity  on  such 

8  application,  to  issue  an  injunction  restraining  such  association  or  cor- 

9  poration,  in  whole  or  in  part,  from  further  proceeding  with  its  business, 

10  and  to  make  such  further  orders  or  decrees  as  justice  and  equity  may 

1 1  require.     The  court  may  appoint  one  or  more  receivers  to  take  possession 

12  of  its  property  and  effects,  subject  to  such  directions  a  may  from  time  to 

13  time  be  prescribed  by  the  court. 


may  summon 
witnesses,  etc. 


y 


1862 


SAVINGS  BANKS. 


[Chap.  168. 


Savings 
department. 
1907,  533,  §  1. 


Funds,  etc., 
to  be  kept 
separate. 
1907,  533,  §  2. 


Section  41.    Every  foreign  banking  association  or  corporation  which  1 

was  on  June  tenth,  nineteen  hundred  and  six,  transacting  business  in  this  2 

commonwealth  and  which  receives  any  deposits  or  transacts  any  business  3 

in  the  manner  of  a  savings  bank,  or  in  such  a  manner  as  might  lead  the  4 

public  to  believe  that  its  business  is  that  of  a  savings  bank,  shall  have  a  5 

savings  department  in  which  all  business  transacted  in  such  manner  in  6 

this  commonwealth  shall  be  done.     All  money  received  in  said  manner  7 

shall  be  a  special  deposit  and  shall  be  placed  in  said  savings  department,  8 

and  all  loans  or  investments  thereof  shall  be  made  in  accordance  with  9 

the  laws  governing  the  investment  of  deposits  in  savings  banks.  10 

Section  42.     Such  funds  and  the  investments  or  loans  thereof  shall  1 

be  appropriated  solely  to  the  security  and  payment  of  such  deposits,  and  2 

shall  not  be  mingled  with  the  investments  of  the  capital  stock  or  other  3 

money  or  property  belonging  to  such  association  or  corporation  or  be  liable  4 

for  the  debts  or  obligations  thereof.    The  accounts  and  transactions  of  5 

said  savings  department  shall  be  kept  separate  and  distinct  from  the  gen-  6 

eral  business  of  the  association  or  corporation.  7 


Income. 
1907,  633, 


Section  43.     All  income  received  from  the  investment  of  funds  in  said  1 

savings  department,  over  and  above  the  sums  paid  to  depositors  in  that  2 

department  as  interest  or  dividends,  shall  accrue  as  profits  to  the  associa-  3 

tion  or  corporation  and  may  be  transferred  to  its  general  funds.  4 


Nimnber  of 
offices 
in  common- 
wealth 
limited. 


Section  44.  No  such  association  or  corporation  described  in  section  1 
forty-one  shall  have  more  than  two  offices  or  places  of  business  in  the  2 
commonwealth.  i907, 533,  §  5.  3 


Application 
of  sections 
41  to  44. 
1907,  533, 
§§  4,  6. 


Section  45.  Sections  forty-one  to  forty-four,  inclusive,  shall  not 
apply  to  any  deposit  received  by  any  such  association  or  corporation  in 
exchange  for  which  deposit,  or  in  exchange  for  the  obligation  of  a  de- 
positor secured  by  such  deposit,  there  shall  be  issued,  either  at  the  time 
of  receiving  the  deposit,  or  thereafter,  orders  for  merchandise  for  the  full 
amount  or  any  part  thereof,  and  nothing  contained  in  said  sections  shall 
be  construed  to  apply  to  national  banks. 


CHAPTER    168, 


SAVINGS  BANKS. 


Sect, 

general  provisions. 

1.  Definitions. 

2.  Application  of  chapter. 

3.  May  borrow  money. 

4.  May  not  occupy  same  office  with  other 

bank. 

5.  Officers  may  not  be  officers  of  other 

banks.     Penalty. 

6.  General  court  may  examine. 

INCORPO  RATION. 

7.  Agreement  of  association. 

8.  Publication  of  notice,  and  public  hear- 

ing. 


Sect. 

9.  First  meeting  of  subscribers. 

10.  Issue  of  certificate  of  incorporation. 

MANAGEMENT. 

11.  Meetings. 

12.  Members. 

13.  Officers. 

14.  Election  of  officers. 

15.  Meetings  of  trustees. 

16.  Meetings  of  tlie  board  of  investment. 

17.  Auditing  committee. 

18.  Audit  by  commissioner  of  banks. 

19.  Report  of  audit. 

20.  Additional  assistance  for  audit. 


CUAF.  168.] 


SAVINGS  BANKS. 


1863 


Sect. 

21.  Payment  over  of  fees. 

22.  Compensation  of  committees. 

23.  Office  of  trustee,  when  vacated. 

24.  Treasurer  to  give  bond. 

25.  Where    business    may    be    transacted. 

School  children. 

26.  Annual  report  to  commissioner. 

27.  Return  of  unclaimed  deposits. 

28.  Books  of  deposit  to  be  verified. 

29.  No  officer,  etc.,  to  borrow  funds  of  cor- 

poration or  become  surety. 

30.  Savings    banks,    etc.,    not    to    receive 

brokerage,  etc.,  on  account  of  a  loan. 


DEPOSITS. 

31.  Amount  of  deposits  limited. 

32.  When  depositor  is  to  be  notified. 

33.  Deposit    of    securities    issued    by    the 

United  States. 

34.  If  deposit  is  made  in  trust,  name  and 

residence   of   beneficiary   to   be   dis- 
closed. 

35.  Depositor  may  set  off  amount  of  his 

deposit  in  proceedings  by  the   cor- 
poration. 

36.  Interpleader. 

37.  Special    trust    fund    for    parks,    shade 

trees,  etc. 


Sect. 

38.  Probate  court  may  authorize  executors 

to  deposit  such  funds. 

39.  Statement  of  amount  of  such  funds  to 

be  made  every  third  year. 

40.  When  funds  are  to  be  transferred. 

41.  Unclaimed  deposits.    Deposits  by  order 

of  the  court. 

42.  Unclaimed  deposits  to  be  paid  to  state 

treasurer. 

43.  How  such  deposits  may  be  reclaimed. 

44.  When  reduction   of   deposits   may   be 

ordered. 

45.  Guaranty  fund  to  be  created  and  main- 

tained. 

46.  Transfers  to  guaranty  fund. 

47.  Manner  of  division  of  income. 

48.  Payment  of  dividends  to   be   author- 

ized by  trustees. 

49.  When  dividend  is  not  to  be  paid. 

50.  When  extra  dividends  shall  be  paid. 

51.  Withdrawal  of  deposits. 

52.  Payment    on     order    after    death    of 

drawer. 

53.  Payments  to  minors. 

investments. 

54.  Investments  authorized. 


GENERAL  PROVISIONS. 

1  Section  1.     The  following  word.s  when  used  in  this  chapter,  unless  Definitions. 

2  the  context  otherwise  requires,  shall  have  the  following  meanings:  igos^sgo! 

3  "Commissioner",  the  commissioner  of  banks.  ilii'.sso, 

4  " Such  corporation "  or  "such  bank",  a  savings  bank  and  an  institution  §§*s,  46. 

5  for  savings,  incorporated  as  such  in  the  commonwealth. 

1  Section  2.    Savings  banks  incorporated  or  doing  business  in  the  com-  Application 

2  monwealth  shall  be  subject  to  this  chapter  so  far  as  is  consistent  with  the  °834.''i'9a'§  i. 

3  provisions  of  their  respective  charters;  and  any  such  corporation  may,  a  i.' s?,' 1 135. 

4  by  vote  at  its  annual  meeting  or  at  a  meeting  called  for  the  purpose,  ac-  ^~i;iii;^u, 

5  cept  any  provision  of  this  chapter  which  is  inconsistent  with  its  charter,  iso*.  3i|'  |  ^i^'- 

1908,  590,  §§  IS,  69. 

1  Section  3 .     If  necessary  to  pay  its  depositors,  such  corporation  may ,  by  May  borrow 

2  vote  of  its  board  of  investment,  borrow  money,  and  may  pledge,  as  security  "gostMo,  §  67. 

3  therefor,  its  bonds,  notes  or  other  securities.     A  copy  of  the  vote  of  the  j5'45,^f°; 

4  board  of  investment  shall  be  sent  forthwith  to  the  commissioner. 

1  Section  4.    No  savings  bank  shall  occupy  the  same  office  or  suite  of  oecupy°same 

2  offices  with  a  national  bank,  trust  companv  or  other  bank  of  discount,  °ffi'=<=  r* 

^r.  T  1  11  PI  1  •  •       other  bank. 

3  nor  any  office  directly  connected  by  means  01  doors  or  other  openings  in  isos.  so?, 

4  partitions  with  the  office  or  suite  of  offices  used  or  occupied  by  any  such  r.  l'.  11.3,  §  21. 

5  national  bank,  trust  company  or  other  bank  of  discount.     Any  such  cor-  iocs!  590,' 

6  poration  violating  this  section  shall  be  punished  by  a  fine  of  not  more  lOp'I'A.^G.seo. 

7  than  five  hundred  dollars.  3  Op.  a.  g.  204. 


1  Section  5.     No  president,  vice  president  or  treasurer  of  such  cor-  officers  may 

2  poration  shall  hold  the  office  or  perform  the  duties  of  president,  vice  St'otife^ba'^^ks. 


1864 


SAVINGS  BANKS. 


[CH-^P.    168. 


Penalty.  president,  treasurer  or  cashier  of  a  national  bank  or  trust  company  or    3 

woiisla  ^*'   any  other  bank  of  discount.     'WTioever  violates  the  provisions  of  this    4 
§§  20, 69.  section  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars.     5 


General  court 
may  exanime. 
1828,96.  §  17. 
1S34,  190,  §  12. 
R.  S.  36,  §§40, 
41,84. 

G.  S.  57,  §§  102, 
103,  155. 
1S76,  203,  §  27. 
P.  S.  116,  §  12. 
1894,  317,  §  12. 
R.  L.  113,  I  13. 
1908,  590, 
§§21,69. 
9  Gush.  604. 


Section  6.  Sa\'ings  baiiks  and  their  officers  shall  be  subject  to  ex- 
amination by  a  committee  of  the  general  court  appointed  for  the  purpose, 
who  may  examine  their  affairs  and  shall  have  free  access  to  their  books  and 
vaults.  An  officer  of  any  such  corporation,  or  other  person  having  charge 
of  its  books  and  property,  who  refuses  or  neglects  to  exliibit  the  same  to 
such  committee  or  obstructs  its  examination  thereof,  shall  be  punished 
by  a  fine  of  not  more  than  ten  thousand  dollars  or  by  imprisonment  for 
not  more  than  three  years. 


Agreement  of 
association. 
1908,  590,  §  2'. 


INCORPOR.\TION. 

Section  7.     Twenty  or  more  persons  who  associate  themseh'es  by  an  1 

agreement  in  -nTiting  for  the  purpose  of  forming  a  sa\-ings  bank,  may,  2 

upon  compliance  with  this  and  the  three  following  sections,  become  a  3 

corporation  with  all  tlie  powers  and  privileges  and  subject  to  all  the  duties,  4 

restrictions  and  liabihties  set  forth  in  all  general  laws  now  or  hereafter  in  5 

force  relating  to  such  corporations.     Said  agreement  shall  set  forth  that  6 

the  subscribers  thereto  associate  themselves  with  the  intention  of  forming  7 

a  corporation  to  transact  business  within  the  commonwealth,  and  shall  8 

specify:  9 

First.     The  name  by  which  the  corporation  shall  be  known.  10 

Second.     The  purpose  for  which  it  is  to  be  formed.  1 1 

Tliird.     The  city  or  town  and  district  thereof  where  its  business  is  to  12 

be  transacted.  13 

Each  associate  shall  subscribe  to  the  articles  his  name,  occupation,  14 

residence  and  post  oflSce  address.  15 


Publication  of        SECTION  S.     The  subscribcrs  to  such  agreement  shall  give  notice  to  the     1 

notice,  and  .  .  ....^.  „  ^,  •iir» 

public  hearing,   board  of  bank  incorporation  oi  their  intention  to  form  such  sa\ings  bank,  2 

1919]  350,  §  47.  and  shall  apply  to  said  board  for  a  certificate  that  public  convenience  and  3 

ad'V'antage  will  be  promoted  by  the  establishment  thereof,  which  certificate  '  4 

said  board  may  grant.    Upon  receipt  of  such  application,  said  board  shall  5 

furnish  the  sulsscribers  a  form  of  notice  specifying  the  names,  occupation  6 

and  addresses  of  the  proposed  incorporators  and  the  name  and  location  7 

of  the  proposed  savings  bank,  and  assigning  a  date  and  place  for  a  public  8 

hearing  on  the  apphcation.     The  subscribers  sliall  publish  such  notice  at  9 

least  once  in  each  of  three  successive  weeks,  in  one  or  more  newspapers  10 

designated  by  said  board,  and  published  in  or  nearest  to  the  city  or  town  11 

where  it  is  desired  to  establish  the  savings  bank.     If  said  board  refuses  to  12 

issue  such  certificate,  no  further  proceedings  shall  be  had,  but  the  appli-  13 

cation  may  be  renewed  after  one  year  from  the  date  of  such  refusal,  in  14 

which  case  notice  of  a  public  hearing  thereon  shall  be  published  as  herein  15 

provided.  16 


First  meeting 
of  subscribers. 
1908,  590,  §  24. 


Section  9.  The  first  meeting  of  the  subscribers  to  the  agreement  of 
association  shall  be  called  by  a  notice  signed  either  by  the  subscriber  to 
the  agreement  who  is  designated  therein  for  the  purpose,  or  by  a  majority 
of  the  subscribers;  and  such  notice  shall  state  the  time,  place  and  ])urposes 
of  the  meeting.  A  copy  of  the  notice  shall,  se\en  days  at  least  before 
the  day  appointed  for  the  meeting,  be  given  to  each  subscriber  or  left  at 


Chap.  168.]  savings  banks.  1865 

7  his  residence  or  usual  place  of  business,  or  deposited  in  the  post  office, 

8  postage  prepaid,  and  addressed  to  him  at  his  residence  or  usual  place  of 

9  business,  and  another  copy  thereof  and  an  affidavit  by  one  of  the  signers 

10  that  the  notice  has  been  duly  served  shall  be  recorded  with  the  records  of 

1 1  the  corporation.     If  all  the  incorporators  shall  in  wTiting,  endorsed  upon 

12  the  agreement  of  association,  waive  such  notice  and  fix  the  time  and  place 
1.3  of  the  meeting,  no  notice  shall  be  required.    The  subscribers  to  the  agree- 

14  ment  of  association  shall  hold  the  francliise  until  the  organization  has  been 

15  completed.     At  such  first  meeting,  or  at  any  adjournment  thereof,  the 

16  incorporators  shall  organize  by  the  choice  by  ballot  of  a  temporary  clerk, 

17  by  the  adoption  of  by-laws  and  by  the  election,  in  such  manner  as  the 

18  by-laws  may  provide,  of  trustees,  a  president,  a  clerk,  and  such  other 

19  officers  as  the  by-laws  may  prescribe.     All  the  officers  so  elected  shall  be 

20  sworn  to  the  faithful  performance  of  their  duties.     The  temporary  clerk 

21  shall  make  and  attest  a  record  of  the  proceedings  until  the  clerk  has  been 

22  chosen  and  sworn,  including  a  record  of  the  choice  and  qualification  of 

23  the  clerk. 

1  Section  10.     The  president,  and  a  majority  of  the  trustees  elected  at  issue  of  cert is- 

2  such  first  meeting,  shall  make,  sign  and  make  oath  to,  articles  in  duplicate,  ration, 

o         4.4,-  f      il  "  1908,  690,  §  25. 

6  setting  forth  ■ —  inog.  491,  §  5. 

4  (a)  A  true  copy  of  the  agreement  of  association,  the  names  of  the  sub-  jj'I't,^!".' 

5  scribers  thereto,  and  the  name,  residence  and  post  office  address  of  each 

6  of  the  officers  of  the  company. 

7  (b)  The  date  of  the  first  meeting  and  the  successive  adjournments 

8  thereof,  if  any. 

9  One  of  such  certificates  shall  be  submitted  to  said  board  of  bank  in- 

10  corporation,  and  the  other,  together  with  the  records  of  the  proposed  cor- 

1 1  poration,  to  the  commissioner  of  corporations  and  taxation,  who  shall  ex- 

12  amine  the  same,  and  who  may  require  such  amendment  thereof  or  such 
1.3  additional  information  as  he  may  consider  necessary.     If  he  finds  that  the 

14  articles  conform  to  the  three  preceding  sections,  relative  to  the  organiza- 

15  tion  of  the  corporation,  and  that  section  eight  has  been  comphed  with, 

16  he  shall  so  certify  and  endorse  his  approval  thereon.     Thereupon  the 

17  articles  shall  be  filed  in  the  office  of  the  state  secretary,  who  upon  pay- 

18  ment  of  a  fee  of  iixe  dollars,  shall  cause  the  same,  with  the  endorsement 

19  thereon,  to  be  recorded,  and  shall  thereupon  issue  a  certificate  of  incor- 

20  poration  in  the  following  form: 

Commonwealth  of  Massachusetts. 

Be  it  known  that  whereas  (the  names  of  the  subscribers  to  the  agreement  of 
association)  have  associated  themselves  with  the  intention  of  forming  a  cor- 
poration under  the  name  of  (the  name  of  the  corporation) ,  for  the  purpose  (the 
purpose  declared  in  the  agreement  of  association)  and  have  complied  OTth  the 
provisions  of  the  statutes  of  this  commonwealth  in  such  case  made  and  pro- 
•vided,  as  appears  from  the  articles  of  organization  of  said  corporation,  duly 
approved  by  the  commissioner  of  corporations  and  taxation  and  recorded  in 
this  office:  now,  therefore,  I  (name  of  the  secretary),  secretary  of  the  common- 
wealth of  Massachusetts,  do  hereby  certify  that  said  (the  names  of  the  sub- 
scribers to  the  agreement  of  association),  their  associates  and  successors,  are 
legally  organized  and  established  as,  and  are  hereby  made,  an  existing  cor- 
poration under  the  name  of  (name  of  the  corporation),  -nith  the  powers,  rights 
and  privileges,  and  subject  to  the  limitations,  duties  and  restrictions,  which  by 
law  appertain  thereto. 

Witness  my  official  signature  hereunto  subscribed,  and  the  great  seal  of  the 
commonwealth  of  Massachusetts  hereunto  affixed,  this  day  of 

in  the  year  (the  date  of  the  filing  of  the  articles  of  organization) . 


1866  SAVINGS  B.vNKs.  [Chap.  168. 

The  secretary  shall  sign  the  certificate  of  incorporation  and  cause  the  21 
great  seal  of  the  commonwealth  to  be  thereto  affixed,  and  such  certificate  22 
shall  have  the  force  and  efi'ect  of  a  special  charter.  The  existence  of  23 
every  such  corporation  not  created  by  special  law  shall  begin  upon  the  24 
fihng  of  the  articles  of  organization  in  the  office  of  the  state  secretary.  25 
The  secretary  shall  also  cause  a  record  of  the  certificate  of  incorporation  26 
to  be  made,  and  such  certificate  or  such  record,  or  a  certified  copy  thereof,  27 
shall  be  conclusive  evidence  of  the  existence  of  the  corporation.  28 

JI.\NAGEMENT. 

isHfifo.  §4.        Section  11.     The  annual  meeting  of  such  corporation  shall  be  held  at  1 

g'  I'  i?'  1 139   ^^^^  time  as  the  by-laws  direct.     Special  meetings  may  be  held  by  order  2 

p%^'nf'lw    of  its  trustees;  and  its  clerk  shall  give  notice  of  special  meetings  upon. wTit-  3 

is&i,  150.         ten  request  of  ten  members  of  the  corporation.     Notice  of  all  meetings  4 

R.  l!  113'.  §  17!  shall  be  given  by  advertisement  in  a  newspaper  published  in  the  county  5 

§§  26.'69.'         where  the  corporation  is  located,  and  by  mailing  to  each  incorporator  at  6 

least  seven  days  before  such  meeting  a  ■wTitten  or  printed  notice  thereof.  7 

The  names  of  those  present  at  meetings  shall  be  entered  in  the  records  of  8 

the  corporation.  9 

ila^'fgo;  §  5.  Section  12.     Such  corporation  may,  at  a  legal  meeting,  elect  by  ballot  1 

g'  i'  57'  1 140  ^^y  citizen  of  the  commonwealth  to  be  a  member  thereof;  and  any  per-  2 

p%^'n*6 'In  ^°^  ma^yi  at  an  annual  meeting,  cease  to  be  a  member,  if,  at  least  three  days  3 

1SS8, 120.  before  such  meeting,  he  has  filed  with  the  clerk  a  ^\Titten  notice  of  his  4 

1S90  222  •  • 

1894]  31-;  §  17.  intention  so  to  do.     If  a  member  fails  to  attend  two  consecutive  annual  5 

1908!  59o!    '  '  meetings,  his  membership  may,  by  vote  of  the  corporation  at  its  next  6 

§§27,09.         annual  meeting,  be  declared  forfeited.     Such  action  and  vote  recorded  7 

shall  be  evidence  of  forfeiture  of  membersliip.    No  person  shall  continue  8 

to  be  a  member  after  removing  from  the  commonwealth.  9 

?j4f790,             Section  13.     The  officers  of  such  corporation  shall  be  a  president,  1 

R.  s.  36,  §§  72,  one  or  more  \'ice  presidents,  a  board  of  investment  of  not  less  than  three,  2 

^3g  .^           a  board  of  not  less  than  eleven  trustees  from  which  the  officers  hereinbefore  3 

5|  136  137.       mentioned  shall  be  chosen,  a  treasurer,  a  clerk  and  such  other  officers  as  4 

1876,'  203.'         it  may  find  necessary  for  the  management  of  its  affairs.     All  officers  shall  5 

p.s!ii6, '        be  sworn,  and  shall  hold  their  several  offices  until  others  are  elected,  and  6 

im'iM'.         qualified  in  their  stead;  and  a  record  of  e^•ery  such  cjualification  shall  be  7 

§U*3,W'         fil^d  and  preserved  by  the  clerk  of  the  corporation.    The  trustees  shall  8 

§5 14  2^'         ^^  elected  from  the  incorporators,  and  no  person  shall  hold  an  office  in  9 

iB08.'s9o.         two  such  corporations  at  the  same  time.     Only  one  of  the  persons  holding  10 

i9ib,'fi22'.  §  4.    the  offices  of  president,  treasiu-er  or  clerk  shall  at  the  same  time  be  a  11 

220  Mass!  3oo!   member  of  the  board  of  investment.     The  treasiu-er,  vice  treasurer  or  12 

assistant  treasurer  shall  not  be  clerk  either  of  the  corporation  or  of  the  13 

trustees.     Not  more  than  tliree  fifths  of  the  members  of  any  such  cor-  14 

poration  shall  be  officers  thereof  at  any  one  time.  L5 

officera°°^  Section  14.    The  officers  of  such  corporation,  except  the  boanl  of     1 

i^^'^K^kiP'    investment,  treasurer,  vice  treasurer  and  assistant  treasurer,  shall  be    2 

K.  o,  Jo.  s  74.  ;  '  ^  ,  .  .       .  ,  , 

?8M  m^  '^*'  ^'scted  at  its  annual  meeting,  anything  in  its  charter  to  the  contrary  3 

1868!  49.  ■  notwithstanding.     The  board  of  investment,  treasurer,  ^ice  treasurer  4 

p.  s.' 116,' §  15.  and  assistant  treasurer  shall  be  elected  by  the  trustees  and  shall  hold  5 

1894!  317!  I  fs.  office  during  their  pleasure.     If  any  office  becomes  vacant  during  the  6 

1902!  im!  1 1^'  year,  the  trustees  may  elect  a  person  to  fill  it  until  the  next  annual  7 


Chap.  168.]  savings  b.vnks.  1867 

8  meeting;    and  if  a  person  elected  does  not,  within  thirty  days  there-  i90s.  590, 

9  after,  take  the  oath,  his  office  shall  thereupon  become  vacant.     The  i9io.'622,  §  5. 

10  clerk  of  the  corporation  shaO,  witliin  ten  days  after  the  meeting,  notify  ~'°  ^^^'^^'  ^"^^ 

11  all  persons  elected  to  office;    and  within  tliirty  days  thereafter  shall 

12  publish  in  a  newspaper  published  in  the  county  where  the  corporation 

13  is  established  a  list  of  all  persons  who  have  taken  the  oath  of  office  to 

14  which  they  were  elected  and  a  list  of  the  members  of  the  corporation. 

15  Said  lists  shall  be  included  in  the  annual  report  of  the  corporation  to 

16  the  commissioner,  and  shall  be  kept  on  file  in  his  office  for  inspection 

17  by  the  public.    A  clerk  who  neglects  to  give  such  notice  or  make  such 

18  publication,  or  who  makes  a  false  publication,  and  a  person  who  know- 

19  ingly  publishes  or  circulates,  or  knowingly  causes  to  be  published  or 

20  circulated,  a  printed  notice  containing  the  name  of  a  person  as  an  officer 

21  of  such  corporation  who  has  not  taken  the  oath  of  office,  shall  be  liable 

22  to  a  penalty  of  fifty  dollars.    The  clerk  shall  transmit  to  the  commis- 

23  sioner  a  copy  of  all  by-laws  adopted  and  all  amendments  thereof.    Upon 

24  the  election  as  trustee  of  any  such  bank  of  a  person  who  has  not  been 

25  theretofore  a  trustee  thereof,  the  clerk  shall  send  forthwith  to  the  com- 

26  missioner  the  name  and  address  of  such  person,  and  the  commissioner 

27  shall  thereupon  transmit  to  such  person  a  copy  of  the  laws  relating  to 

28  savings  banks. 

1  Section  15.     A  regular  meeting  of  the  board  of  trustees  of  such  Meetings  of 

2  corporation  shallbe  held  at  least  once  in  three  months,  for  the  piu-pose  1876^203,  §  7. 

3  of  receivmg  the  report  of  its  treasurer  and  for  the  transaction  of  other  isli  sa'  ^  '^" 

4  business.     Special  meetings  may  be  called  by  the  president,  and  the  }|||;  1^^  ^  j^ 

5  clerk  shall  give  notice  of  special  meetings  upon  WTitten  request  of  tliree  k^jL.  113,  §  19. 

6  trustees.    A  quorum  shall  consist  of  not  less  than  seven  trustees,  but  ||  3„°'g^?,-  ,  g 

7  less  than  a  quorum  may  adjourn  from  time  to  time  or  until  the  next  1912!  357.' 

8  regular  meeting.     At  each  regular  meeting  the  trustees  shall  cause  to 

9  be  prepared  a  statement  showing  the  condition  of  the  corporation  as 

10  it  appears  upon  its  books,  in  the  form  of  a  trial  balance  of  its  accounts. 

11  Such  statement  shall  be  entered  in  a  book  which  shall  form  a  part  of 

12  the  records  of  the  bank  and  a  copy  of  such  statement  shall  be  posted 

13  in  a  conspicuous  place  in  its  banking  room,  where  it  may  easily  be  read 

14  by  the  public,  and  shall  there  remain  mitil  the  next  regular  meeting  of 

15  said  board.     At  each  regular  meeting  of  the  trustees  the  board  of  in- 

16  vestment  shall  submit  a  detailed  WTitten  statement  of  all  loans  made 

17  by  the  corporation,  all  changes  in  the  property  or  seciuity  pledged  or 

18  the  rate  of  interest  charged  therefor,  all  purchases  or  sales  of  bonds, 

19  stocks  and  notes,  all  payments  by  the  bank  of  taxes  or  insurance  on 

20  mortgaged  property  since  the  last  regular  meeting  of  the  trustees,  and 

21  all  loans  on  which  interest  is  more  than  three  months  overdue.    This 

22  statement,  or  such  part  thereof  as  the  meeting  may  determine,  sh^ll 

23  be  read  to  the  trustees  present  and  then  shall  be  filed  and  preserved 

24  with  the  records  of  the  bank.    A  record  shall  be  made  at  each  meeting 

25  of  the  transactions  of  the  trustees  and  of  the  names  of  those  present. 

26  The  trustees  shall  cause  to  be  published  semi-annually  in  a  newspaper 

27  published  in  the  county  where  the  corporation  is  located  the  names  of 

28  the  president,  treasurer,  members  of  the  board  of  investment  and  other 

29  officers  of  the  corporation  charged  with  the  duty  of  investing  its  funds. 

30  The  first  publication  thereof  shall  be  within  tliirty  days  after  the  elec- 

31  tion  of  said  officers,  and  the  second  publication  at  the  expiration  of  six 

32  months  therefrom. 


1868 


SAVINGS   B.VNKS. 


[Chap.  168. 


Meetings  of 
the  board  of 
investment. 
190S,  590,  §  31. 


Section  16.  IMeetings  of  the  board  of  investment  of  such  corpora-  1 
tion  shall  be  held  at  least  once  in  each  month.  The  board  shall  approve  2 
all  loans  made  by  the  corporation,  all  changes  in  the  property  or  se-  3 
curity  pledged  or  the  rates  of  interest  charged  therefor,  and  all  pur-  4 
chases  or  sales  of  bonds,  stocks  and  notes,  and  shall  perform  such  other  5 
duties  as  the  by-laws  may  prescribe.  A  record  shall  be  made  at  each  6 
meeting  of  the  transactions  of  the  board  and  the  names  of  those  present.  7 
The  members  of  said  board  may  approve  changes  of  collateral  on  loans  8 
made  under  subdi\ision  (e)  of  clause  ninth  of  section  fifty-four  either  9 
by  a  vote  of  said  board  or  by  signing  a  statement  setting  forth  all  such  10 
changes.  11 


Auditing 
committee. 
1908,  590,  J 
1910.  622,  § 
1919,  350, 
§§  45,  46. 


Section  17.  At  the  first  meeting  after  their  election,  the  trustees  1 
^2-  shall  appoint  an  auditing  committee  of  not  less  tlian  three  trustees,  of  2 
wliich  committee  neither  the  treasurer  nor  more  than  one  member  of  3 
the  board  of  investment  shall  be  members,  who  shall  at  least  once  4 
during  the  twelve  months  following  their  appointment,  and  oftener  5 
if  required  by  the  commissioner,  cause  to  be  made  at  such  time  as  the  6 
commissioner  may  determine,  in  such  form  and  manner  and  by  such  7 
certified  public  accountant  not  connected  with  said  bank  as  shall  first  8 
be  approved  by  the  commissioner,  a  thorough  examination  and  audit  9 
of  the  books,  securities,  cash,  assets,  liabilities,  income  and  expendi-  10 
tures  of  the  corporation,  including  an  accurate  trial  balance  of  the  11 
depositors'  ledger,  for  the  period  elapsed  since  the  preceding  examina-  12 
tion  and  audit,  or  for  such  other  period  as  the  commissioner  may  pre-  13 
scribe.  The  said  accountant  shall  personally  direct  and  supervise  the  14 
making  of  said  examination  and  audit,  except  that,  with  the  consent  15 
of  the  commissioner,  he  may  verify  a  trial  balance  of  the  depositors'  16 
ledger  made  by  the  bank  witliin  six  months,  and,  with  the  consent  of  17 
the  commissioner,  such  assistance  as  shall  be  necessary  may  be  furnished  18 
by  the  bank.  The  accountant  shall  report  to  the  auditing  committee  19 
the  result  of  his  examination  and  audit,  and  at  the  next  meeting  of  the  20 
trustees  thereafter  the  committee  shall  render  a  report,  which  shall  be  21 
read,  stating  in  detail  the  nature,  extent  and  result  of  the  examina-  22 
tion  and  audit,  and  their  report  and  the  accountant's  report  shall  be  23 
filed  and  preserved  with  the  records  of  the  corporation.  The  committee  24 
shall  file  with  the  commissioner  a  copy  of  the  report  of  the  accoimtant  25 
within  ten  days  after  its  completion.  The  certified  public  accountant  26 
and  the  auditing  committee  shall  certify  and  make  oath  that  the  re-  27 
ports  made  by  them  under  this  section  are  correct  according  to  their  28 
best  knowledge  and  belief.  If  the  committee  fails  to  cause  to  be  made  29 
an  examination  and  audit,  including  an  accurate  trial  balance  of  the  30 
depositors'  ledger  as  herein  provided,  the  commissioner  shall  cause  them  31 
to  be  made  by  a  certified  public  accountant  in  such  form  and  man-  32 
ner  as  he  may  prescribe,  and  the  expense  thereof  shall  be  paid  by  the  33 
bank.  34 


Audit  by 
commissioner 
of  banks. 
1912,  629,  §  1. 


Section  18.     The   commissioner   may,   when   so   requested   by   the  1 

auditing  committee  of  any  such  bank,  make  a  thorough  examination  2 

and  audit  of  the  books,  securities,  cash,  assets,  liabilities,  income  and  3 

expenditures  of  such  bank,  including  an  accurate  trial  balance  of  the  4 

depositors'  ledgers,  for  the  period  elapsed  since  the  preceding  examina-  5 

tion  and  audit,  or  for  such  other  period  as  the  commissioner  may  pre-  6 

scribe,  or  he  may  verify  a  trial  balance  of  the  depositors'  ledgers  made  7 


CH-^P.   168.]  SAVINGS  BANKS.  1869 

S  by  the  bank  within  six  months,  and  may  avail  himself  of  such  assist- 
9  ance  from  the  officers  and  employees  as  he  may  deem  proper.     The 

10  expense  of  the  audit  only  shall  be  borne  by  the  bank,  and  such  examina- 

11  tion  and  audit  shall  be  in  place  of  the  one  required  to  be  made  by  a 

12  certified  public  accountant  as  provided  by  the  preceding  section. 


lOrt  of 


1  Section  19.     The  person  in  charge  of  the  examination  shall  render  to  Reno. 

2  the  commissioner  a  report  of  his  findings,  in  such  form  as  the  commissioner  i9i2,'629,  §  2. 

3  may  prescribe,  and  a  copy  thereof  shall  be  rendered  to  the  auditing  com- 

4  mittee  within  ten  days  after  the  original  has  been  submitted  to  the  com- 

5  missioner,  together  with  a  notice  of  the  amount  of  the  fee  to  be  paid, 

6  which  shall  be  due  and  payable  within  thirty  days  after  the  date  of 

7  notice.  Upon  failure  of  any  such  corporation  to  pay  the  required  fee 
S  within  the  time  prescribed  herein,  the  commissioner  shall  report  the  facts 
9  to  the  attorney  general,  who  shall  immediately  bring  an  action  for  the 

10  recovery  of  the  fee. 

1  Section  20.     The  commissioner,  in  order  to  carry  into  effect  the  two  Additional 

2  preceding  sections  may  employ  such  additional  assistance,  subject  to  the  foraudu.'^ 

3  approval  of  the  governor  and  council,  as  he  deems  necessary.  ^®^^'  ''^^'  ^  ^' 

1  Section  21.     All  moneys  collected  and  received  by  the  commissioner  Payment  over 

2  under  section  nineteen  shall  be  paid  to  the  commonwealth.  I9i2r629,  §  4. 

1  Section  22.     The  board  of  trustees  shall  authorize  the  compensation.  Compensation 

2  if  any,  to  be  paid  to  committees  of  said  board.     At  each  regular  meeting  is7b!°203?'§  u. 

3  of  the  board  the  treasurer  shall  report  in  detail  all  amounts  paid  by  the  fsg^i, '31*7,^^13. 

4  corporation  since  the  last  regular  meeting  for  services,  fees  or  otherwise,  fg,^-  H^-  ^  ^*- 

5  to  a  member  of  the  board  of  trustees  or  to  any  attorney  of  the  corporation.  5§  33, 09. 

1  Section  23.     If  a  trustee  fails  both  to  attend  the  regular  meetings  of  °r?s™e°^vhen 

2  the  board  and  to  perform  any  of  the  duties  devolving  upon  him  as  such  jlSg'li, 

3  trustee  for  six  consecutive  months,  his  office  may  be  declared  by  the  board  p-  s.'  iie,'  §  is. 

.  ISS''  50 

4  at  the  next  regular  meeting  to  be  vacant.     A  record  of  such  vacancy  shall  isss!  ge! 

5  be  entered  upon  the  books  of  the  corporation,  and  a  transcript  of  such  r.^l.  us,  §  w- 

6  record  shall  be  sent  by  mail  to  the  person  whose  office  is  thus  made  H^lj,  m?' 

7  vacant.     The  office  of  any  trustee  who  takes  the  benefit  of  any  law  of  JlJg'  3?5'  ^  ^■ 

8  bankruptcy  or  insolvency,  or  of  the  oath  for  the  relief  of  poor  debtors,  §§  *^-  4'"'- 

9  shall  thereby  be  vacated.    The  commissioner  may  recommend  the  re- 

10  moval  of  any  trustee,  officer  or  employee  who  in  his  opinion  has  abused 

1 1  his  trust,  or  has  been  negligent  in  the  performance  of  his  duties,  and  upon 

12  such  recommendation  the  trustees  may  remove  or  discharge  such  trustee, 

13  officer  or  employee.     The  trustees  shall  act  upon  such  recommendation 

14  within  thirty  days  after  receiving  the  same. 

1  Section  24.     Every  treasurer,  vice  treasurer  and  assistant  treasurer  Treasurer  to 

2  shall  give  bond  to  the  satisfaction  of  the  trustees  in  such  form  as  the  com-  fsT-e.'^los,'  §  3. 

3  missioner  may  prescribe,  for  the  faithful  performance  of  his  duties  and  p**£'  \%\  §  14 

4  shall  file  with  the  commissioner  an  attested  copy  thereof,  with  a  certificate  }^|^'  ^|g 

5  of  its  custodian  that  the  original  is  in  his  possession.     Such  officer  shall  Jfgl'lit'  |V. 

6  notify  the  commissioner  of  any  change  thereafter  made  therein.     If  he  R.  l'.  113',  5  is! 

•       •  *<  o  ^  190S   590 

7  fails,  within  ten  daj-s  after  the  date  thereof,  to  file  a  copy  of  his  bond,  or  §§  35.  eg.' 

8  to  notify  the  commissioner  of  any  change  therein,  he  shall  be  liable  to  a  HI  u^l'.  sob. 


1870  SAVINGS  BANKS.  [Chap.  1G8. 

penalty  of  fifty  dollars.     The  commissioner  shall  keep  a  record  showing  9 

when  such  bonds  expire,  and  the  changes  so  notified,  and,  when  in  his  10 

judgment  it  is  necessary  for  the  security  of  the  depositors,  he  shall  require  1 1 

a  new  bond  in  such  amount  and  with  such  sureties  as  he  may  approve.  12 

Said  officers  shall  give  new  bonds  at  least  once  in  five  years.     The  trustees  13 

shall  require  bonds  of  such  other  officers  or  employees,  and  in  such  14 

amounts,  as  they  deem  necessary.  15 

neL^ma^"be  SECTION  25.     Such  Corporation  shall  carry  on  its  usual  business  at  its     1 

School'^"''''        banking  house  only,  and  a  deposit  shall  not  be  received  or  payment  on     2 

children  account  of  dcposits  be  made  by  the  corporation  or  by  a  person  on  its  ac-     3 

1889: 91.  '§  1.     count  in  any  other  place  than  at  its  banking  house,  which  shall  be  in  the    4 

E.  l!  113,  §  20.  town  where  the  corporation  is  established ;  except  that  the  corporation     5 

ll'se.^e'g''         may,  with  the  written  permission  of  and  under  regulations  approved  by     6 

1918' 11^"         ^1^^  commissioner,  maintain  and  establish  one  or  more  branch  offices  or     7 

ll^^iT         depots  in  the  town  where  its  banking  house  is  located,  or  in  towns  not     8 

more  than  fifteen  miles  distant  therefrom  where  there  is  no  savings  bank     9 

at  the  time  when  such  permission  is  given;   but,  in  order  to  encoiu-age  10 

sa\ang  among  school  children,  the  corporation  may,  with  the  MTitten  11 

consent  of  and  under  regulations  appro^^ed  by  the  commissioner  and,  12 

in  the  case  of  public  schools,  by  the  commissioner,  and  the  school  com-  13 

mittee  in  the  town  where  the  school  is  situated,  arrange  for  the  collection  14 

of  savings  from  the  school  children  by  the  principal  or  teachers  of  such  15 

schools  or  by  collectors.    All  moneys  so  collected  shall  be  entered  on  16 

an  indiA'idual  deposit  card  furnished  by  the  corporation,  but  the  total  17 

collections  received  by  the  corporation  from  any  one  principal  or  teacher  18 

may  be  entered  in  the  name  of  such  principal  or  teacher  as  trustee.     When  19 

the  amount  deposited  by  any  one  pupil  and  credited  on  the  deposit  card  20 

equals  the  minimum  amount  upon  which  interest  is  allowed  the  corpora-  21 

tion  shall  issue  a  pass  book  to  such  pupil  and  thereafter,  when  the  amount  22 

deposited  by  the  pupil  and  credited  on  the  deposit  card  equals  the  sum  23 

of  one  dollar,  it  shall  be  transferred  to  the  deposit  book  by  the  corpora-  24 

tion.     The  principal,  teacher  or  person  authorized  by  the  corporation  25 

to  make  collections  from  school  children  shall  be  deemed  to  be  the  agent  26 

of  the  corporation  and  the  corporation  shall  be  liable  to  the  pupil  for  all  27 

deposits  made  with  such  principal,  teacher  or  other  person  and  entered  28 

upon  the  deposit  card,  the  same  as  if  the  deposit  were  made  by  the  pupil  29 

directly  with  the  corporation.     The  annual  meeting,  and  meetings  of  30 

the  trustees  or  board  of  investment  of  such  corporation,  may  be  held  at  31 

any  place  in  the  town  where  its  banking  house  is  located.  32 

to^TO^^s^"'  Section  26.  The  treasurer  of  such  corporation  shall,  annually  within  1 
183  "'i9o  ^  11  t'^'^nty  days  after  the  last  business  day  of  October,  make  a  report  to  the  2 
R-S-'36,  §82.  commissioner  in  such  form  as  he  may  prescribe,  showing  accurately  the  3 
G.  s.'s?,'  §  148.  condition  of  such  corporation  at  close  of  business  on  that  day,  specifying  4 
§§8,'9.  '  ""  '  the  following  particulars:  name  of  corporation  and  names  of  incorpora-  5 
1867, 203!  1 1°'  tors  and  officers;  place  where  located;  amount  of  deposits;  amount  of  6 
1875;  Res.  68  cacli  Item  of  Other  liabilities ;  pubfic  funds,  including  all  United  States,  7 
1877'  159'  ^ " '■  ^^^'^^'  county,  city,  town  and  district  bonds ;  railroad  bonds,  street  railway  8 
P- s.'iie,  |40.  bonds,  telephone  bonds,  and  stock  in  banks  and  trust  companies,  stating  9 
1894)  317',  §  42.  each  particular  kind,  and  the  par  value,  estimated  market  value  and  10 
1902, 169,' §  2.  ■  amount  invested  in  each;  loans  to  counties,  cities,  towns  or  districts;  11 
§fT.'3,°5."  loans  on  mortgages  of  real  estate;  loans  on  personal  security,  stating  12 
§|°37,69°'         amount  of  each  class  separately;    estimated  value  of  real  estate,  and  13 


Chap.  168.]  savings  banks.  1871 

14  amount  invested  therein;  cash  on  deposit  in  banks  and  trust  companies,  i?i9, 330. 

15  with  the  names  of  such  banks  and  trust  companies  and  the  amount  de- 

16  posited  in  each;  cash  on  hand;  the  whole  amount  of  interest  or  profits 

17  received,  and  tlie  rate  and  amount  of  eacli  semi-annual  and  extra  dividend 

18  for  the  previous  year;  the  times  for  the  dividends  fixed  by  the  by-laws; 

19  the  rates  of  interest  received  on  loans;  the  total  amount  of  loans  bearing 

20  each  specified  rate  of  interest;   the  number  of  outstanding  loans  of  an 

21  amount  not  exceeding  three  thousand  dollars  each,  and  the  aggregate 

22  amount  of  the  same;   the  number  of  open  accounts;    the  number  and 

23  amount  of  deposits  received;   the  number  and  amount  of  withdrawals; 

24  the  number  of  accounts  opened  and  the  number  of  accounts  closed, 

25  severally,  during  the  previous  year;  and  the  annual  expenses  of  the  cor- 

26  poration,  together  with  such  other  information  as  the  commissioner  may 

27  require.     The  president,  treasurer  and  auditing  committee  shall  certify 

28  on  oath  that  such  reports  are  correct  according  to  their  best  knowledge 

29  and  belief. 

1  Section  27.    The  treasurer  of  such  corporation  shall,  within  twenty  Return  of 

2  days  after  the  last  business  day  of  October  in  the  year  nineteen  hundred  depo'sits. 

3  and  twenty-two  and  in  every  fifth  year  thereafter,  return  to  the  com-  \lgl]  l\j\  5  45 

4  missioner  a  sworn  statement  of  the  name,  the  amount  standing  to  his  fg^g- 1^'  ^  ^°- 

5  credit,  the  last  known  residence  or  post  office  address,  and  the  fact  of  |§  i^'  |'g5- 

6  death,  if  known  to  him,  of  each  depositor  who  shall  not  have  made  §§39,69.' 

7  a  deposit  therein  or  withdrawn  therefrom  any  part  of  his  deposit,  or  §§45,46.' 

8  any  part  of  the  interest  thereon,  diu-ing  the  twenty  years  last  preceding 

9  such  last  business  day  of  October;    he  shall  also  give  notice  of  such 

10  deposits  in  one  or  more  newspapers  published  in  or  nearest  to  the  town 

11  where  such  corporation  is  located,  and  in  one  or  more  newspapers  pub- 

12  lished  in  or  nearest  to  the  town  where  the  depositor  was  last  known  to 

13  reside,  at  least  once  in  each  of  tliree  successive  weeks;   but  tliis  section 

14  shall  not  apply  to  a  deposit  made  by  or  in  the  name  of  a  person  known 

15  to  an  officer  of  the  corporation  to  be  living,  to  a  deposit  the  deposit 

16  book  of  which  has  diu-ing  such  period  been  brought  into  the  bank  to 

17  be  verified  or  to  have  interest  added,  or  to  a  deposit  which,  with  the 

18  accumulations  thereon,  shall  be  less  than  twenty-five  dollars.     The 

19  treasurer  of  a  savings  bank  who  neglects  or  refuses  to  make  the  sworn 

20  return  required  by  this  section  shall  be  punished  by  a  fine  of  one  hun- 

21  dred  dollars.    The  commissioner  shall  incorporate  in  his  annual  report, 

22  or  in  a  supplementary  report,  each  return  made  to  him  as  provided 

23  in  this  section. 

1  Section  28.     During  one  or  more  of  the  first  ten  months  of  the  year  Books  of 

2  nineteen  hundred  and  twenty-two  and  of  each  third  year  thereafter  venfied.  ° 

3  such  corporations  shall  call  in  the  books  of  deposit  of  their  depositors  Htl',  ti7.  §  47. 

4  for  verification,  under  rules  to  be  prescribed  by  their  respective  boards  ^^l]  ^^l  ^  53 

5  of  investment,  duly  approved  by  the  commissioner. 

1906,  204,  §§  1,  3,  5.  1908,  590,  §§  43,  69.         1919,  350,  §§  45,  46. 

1  Section  29.     No  president,  treasurer,  member  of  a  board  of  invest-  no  officer,  etc., 

2  ment,  or  officer  of  such  corporation  charged  with  the  duty  of  investing  fSnd°s'^o'f'cor- 

3  its  funds,  shall  borrow  or  use  any  portion  thereof,  be  surety  for  loans  g°''^''°"  °'' 


become 


4  to  others  or,  directly  or  indirectly,  whether  acting  individually  or  as  i834',^i9o,  §  9, 

5  trustee  holding  property  in  trust  for  another  person,  be  an  obligor  for  ^^^  ||'  §  ^■ 

6  money  borrowed  of  the  corporation ;    and  if  such  member  or  officer,  g.  s.'  57  §  i46. 

7  either  individually  or  as  trustee  holding  property  in  trust  for  another  p.  s.'  uc,'  §  21! 


1872 


SAVINGS  B.\NKS. 


[Ch.\p.  168. 


1889,  161. 
1894.  317,  I 
R.  L.  113.  f 
1908,  590, 
§§  44,  69. 
4  Op.  A.  G. 
297. 


person,  becomes  the  owner  of  real  estate  upon  which  a  mortgage  is  8 

held  by  the  corporation,  his  office  shall  become  vacant  at  the  expiration  9 

of  sixty  days  thereafter  unless  he  has  ceased  to  be  the  owner  of  the  real  10 

estate  or  has  caused  said  mortgage  to  be  discharged  or  assigned.    This  11 

section  shall  not  apply  to  loans  held  by  such  corporation  on  June  eighth,  12 

nineteen  hundred  and  eight,  or  to  renewals  thereof,  or  to  the  deposit  of  13 

money,  as  provided  in  section  fifty-four,  in  banks  or  trust  companies  of  14 

which  one  or  more  trustees  or  officers  of  such  corporation  are  directors.  15 


Savings  banks, 
etc..  not  to 
receive 

brokerage,  etc., 
on  account 
of  a  loan. 
1872,  293, 
§H,5. 

1876,  203,  §  U. 
P.  S.  116,  §  22. 
1894,  317,  §  23. 
R.  L.  113,  §  28. 
1908,  590, 
§§  43,  69. 


Amount  of 
deposits 
limited. 
1834,  190,  §  6. 
R.  S.  36,  §  77. 
G.  S.  57,  §  141. 

1874,  393. 

1875,  100. 

1876,  203,  §  8. 
P.  S.  116.  §  19. 
1889,  86; 

449,  §  1. 
1894,  317,  §  20. 
R.  L.  113.  §  25. 

1908.  590, 
H  46,  09. 

1909.  491,  I  7. 
1917,  144. 


When  depos- 
itor is  to  be 
notified. 
1871.262.  §  1. 
1876,203.5  21. 
P.  S.  116,  §33. 
1894.  317,  5  3,5. 
R.  L.  113,  §  40. 
1908.  590, 
|§  47,  69. 


Section  30.     Such  corporation,  or  a  person  acting  in  its  behalf,  shall  1 

not  directly  or  indirectly  negotiate,  take  or  receive  a  fee,  brokerage,  2 

commission,  gift  or  other  consideration  for  or  on  account  of  a  loan  3 

made  by  or  on  behalf  of  such  corporation,  other  than  appears  on  the  4 

face  of  the  note  by  which  such  loan  purports  to  be  made;    but  this  5 

section  shall  not  prohibit  a  reasonable  charge  for  services  in  the  ex-  6 

amination  of  real  estate  or  titles,  and  the  preparation  of  conveyances  7 

to  such  corporation  as  security  for  its  loans.     AYhoever  violates  any  8 

provision  of  this  section  shall  be  punished  by  a  fine  of  not  more  than  9 

one  thousand  dollars  or  by  imprisonment  for  not  more  than  one  year,  10 

or  both.  11 

DEPOSITS. 

Section  31.    Such  corporation  may  receive  on  deposit  from  any  1 

person  not  more  than  two  thousand  dollars;    and  may  allow  interest  2 

upon  such  deposits,  and  upon  the  interest  accumulated  thereon,  until  3 

the  principal,  with  the  accrued  interest,  amounts  to  four  thousand  4 

dollars;    and  thereafter  upon  no  greater  amount  than  four  thousand  5 

dollars;    but  this  section  shall  not  apply  to  deposits  by  a  religious  or  6 

charitable  corporation  or  labor  union,  or  credit  union,  or  in  the  name  7 

of  a  judge  of  probate,  or  by  order  of  any  court,  or  on  account  of  a  sink-  8 

ing  fund  of  a  town  in  the  commonwealth  or  of  any  trust  fund  held  by  9 

a  town  for  public  uses.                1919,  ll.               231  Mass.  367.               4  Op.  A.  G.  437.  10 

Section  32.     The  treasurer  of  such  corporation,  at  least  once  in  1 

each  year,  shall  .send  notice  by  mail  to  each  depositor  who  for  the  six  2 

months  last  preceding  has  not  been  entitled  to  a  dividend  on  the  whole  3 

amount  standing  to  his  credit  because  the  same  exceeds  the  amount  4 

on  which  interest  is  allowed,  specifying  the  amount  not  entitled  to  5 

dividend.  6 


Deposit  of 
securities 
issued  by 
the  United 
States. 
1919,  60. 


Section  33.     Savings  banks  may,  with  the  written  permission  of  1 

and  under  regulations  approved   by   the   commissioner,   receive  and  2 

hold  for  their  depositors  any  securities  issued  by  the  United  States.  3 

Op.  A.  G.  (1920)  247. 


If  deposit  is 
made  in  trust, 
name  and 
residence  of 
beneficiary 
to  be  dis- 
closed. 

1876.  203.  §  20. 
P.  S.  116,  5  32. 
1894,  317,  I  34. 
R.  L.  113,  I  39. 
1908.  590, 
§§  48.  69. 
142  .Mass.  1. 
146  Mass.  418. 
164  Mass.  583. 


Section  34.     If  a  deposit  is  made  with  such  corporation  by  one  1 

person  in  trust  for  another,  the  name  and  residence  of  the  person  for  2 

whom  it  is  made  shall  be  disclosed,  and  it  shall  be  credited  to  the  de-  3 

positor  as  trustee  for  such  person;  and  if  no  other  notice  of  the  existence  4 

and  terms  of  a  trust  has  been  given  in  writing  to  the  corporation,  the  5 

deposit,  with  the  interest  thereon,  may  in  case  of  the  death  of  the  6 

trustee  be  paid  to  the  person  for  whom  such  deposit  was  made,  or  to  7 

his  legal  representative;  or  if  such  deposit  does  not  exceed  fifty  dollars,  8 

it  may  be  paid  to  a  minor  or  to  either  of  the  parents  of  such  minor,  9 

and  the  same  shall  be  a  valid  payment.  10 


Ch.\p.  168.]  SAvmcs  b.vnks.  1873 

1  Section  35.     A  person  indebted  to  such  corporation,  whether  his  Depositor 

2  indebtedness  is  secured  or  not,  may,  in  a  proceeding  for  the  collection  amoJnt  of  his 
.3  thereof  or  for  the  enforcement  of  any  security  therefor,  recoup  or  set  off  proceedings 

4  the  amount  of  a  deposit  held  and  owned  by  him  at  the  time  of  the  porati^oS""" 

5  commencement  of  such  proceeding,  and  of  the  interest  due  thereon,  p*  §*■  ff^;  1 35 

6  except  a  deposit  purchased  or  acquired  from  another  after  the  com-  isoi,  sir,  1 32. 

7  mencement  of  proceedings  in  equity  to  restrain  the  corporation  from  la'os.'sgo,' 

8  doing  its  actual  business,  and  section  three  of  chapter  two  hundred  and  i2s  Mass.  512. 

9  thirty-two  shall  not  apply  to  such  set-off;  but  a  judgment  shall  not  be  op^Alc^cwa)) 

10  rendered  against  such  corporation  in  favor  of  the  defendant  or  defendants  '^''^■ 

11  for  any  balance  found  due  from  the  plaintiff  if  the  commissioner  has 

12  taken  possession  of  such  corporation,  as  provided  in  section  twenty-two 

13  of  chapter  one  hundred  and  sixty-seven. 

1  Section  36.     If,  in  an  action  against  such  corporation  for  money  on  interpleader. 

2  deposit  therewith,  it  appears  that  the  same  fund  is  claimed  by  another  inn',  179! 

3  party  than  the  plaintiff,  whether  by  the  husband  or  wife  of  the  plaintiff",  fsM,  an,  §  33. 

4  or  otherwise,  the  court  in  which  such  action  is  pending,  on  the  petition  of  fgog';  590'  ^  ^^■ 

5  the  corporation  and  on  such  notice  to  the  plaintiff  and  to  such  claimants  fl/^^^g  593 

6  as  the  court  considers  proper,  may  order  the  proceedings  to  be  amended  wo  Mass.  260. 

7  by  making  such  claimants  defendants  thereto;  and  thereupon  the  rights  ih2  M'ass!  4.5.5! 

8  and  interests  of  the  several  parties  in  and  to  said  funds  shall  be  heard  and  ' 

9  determined.     Such  deposits  may  remain  with  the  corporation  until  final 

10  judgment,  and  shall  be  paid  as  the  coiu-t  orders,  or  may  be  paid  into  court 

11  to  await  final  judgment;  and  when  so  paid  into  court,  the  action  shall 

12  be  discontinued  as  to  such  corporation  and  its  Uability  for  such  deposit 

13  shall  cease.    The  taxable  costs  of  the  corporation  in  such  actions  shall 

14  be  in  the  discretion  of  the  court,  and  may  be  charged  upon  the  fund. 

1  Section  37.     Such  corporation  may  receive  on  deposit  to  any  amount  Special  trust 

2  funds  in  trust  for  the  purpose  of  setting  out  shade  trees  in  sti'eets  and  shade  trees, 

3  parks  and  improving  the  same,  purchasing  land  for  parks  or  playgrounds  !875, 174,  §  1. 

4  and  imp^o^■ing  the  same,  maintaining  cemeteries  or  cemetery  lots  or  ^sm,  ^17,1^3^7. 

5  erecting  and  maintaining  drinking  fountains  in  public  places.     Such  funds  ^jg^- 1 13,  §  42. 

6  shall  be  placed  on  interest  in  such  corporation,  and  the  interest  and  divi- 

7  dends  arising  therefrom  shall  be  paid  semi-annually  to  such  town  or 

8  cemetery  authorities  as  may  be  designated  by  the  donors  of  said  funds  or 

9  by  the  will  of  the  person  bequeathing  the  same,  and  shall  be  ex-pended 

10  by  such  authorities  within  their  respective  towns  or  cemeteries  for  any  or 

11  all  of  said  purposes,  as  may  be  specified  by  such  donors  or  such  will.     No 

12  part  of  the  principal  of  such  funds  shall  be  withdrawn  or  expended,  and 

13  the  same  shall  be  exempt  from  attachment  or  levy  on  execution. 

1  Section  38.     A  judge  of  probate,  after  notice  and  a  hearing,  may  au-  Probate  court 

2  thorize  an  executor,  administrator  or  trustee  holding  money  or  other  per-  eie^utors  t"^" 

3  sonal  property  for  any  of  the  purposes  mentioned  in  the  preceding  section,  f3l."  ^"''' 

4  to  deposit  such  money,  or  the  aA'ails  arising  from  such  personal  property,  j?"'no;§  30. 

5  in  any  such  corporation  designated  by  the  judge,  to  be  held  by  it  in  the  )^^^-  sj^,  1 3s. 

6  manner  and  for  the  uses  and  purposes  mentioned  in  said  section  and  upon  i9o|,  590', 

7  the  trusts  upon  which  the  executor,  administrator  or  trustee  held  the  139  iiiass.  3.5.3. 

8  same;  and  upon  the  deposit  of  such  money  and  its  receipt  and  acceptance 

9  by  such  corporation  the  executor,  administrator  or  trustee  shall  be  dis- 

10  charged  from  further  care  and  responsibility  tlierefor. 


51,69. 
163  Mass.  402. 


1874 


SAVINGS   B.\XKS. 


[Caxp.  IGS. 


f mount  o*f  such      SECTION  39.     The  f unds  held  in  accordance  with  the  two  preceding  sec-  1 

^dl  ev-e^       *^°^^  ^^^^  '^^  known  as  the  "  Shade  Tree  and  Cemetery  Fund  ",  and  the  2 

1875  i?"'?  2     treasurer  of  the  corporation  with  which  they  are  deposited  shall  gi\-e  a  3 

p.  s.'ii6,'5  37.  receipt  therefor  to  the  depositor,  and  shall  send  by  mail  or  deliver,  in  Jan-  4 

E.  l!  lis!  1 44.'  uary  in  each  third  year  after  the  first  deposit  to  the  mayor  of  a  city  or  the  5 

Hfi^lo*'         chairman  of  the  selectmen  of  a  town  M-itliin  the  hmits  of  which  the  in-  6 

terest  and  di^'idends  of  such  fund  are  to  be  expended,  a  WTitten  statement,  7 

signed  by  such  treasiuer,  of  the  amount  of  funds  on  deposit  for  the  piu--  8 

poses  aforesaid,  which  shall  be  recorded  in  the  office  of  the  city  or  town  9 

clerk.                                                                                                     ^  10 


when  funds 
are  to  be 
transferred. 
1875,  174,  §  3. 
P.  S.  116,  §  38. 
1894,317,  §40. 
R.  L.  113,  §45. 
1908,  590, 

§§  54,  eg. 


Section  40.  If  a  corporation  holding  such  fimd  surrenders  its  charter 
or  ceases  to  do  business,  the  supreme  judicial  coiu-t  may  order  said  fund 
to  be  transferred  and  deposited  in  another  such  corporation,  upon  the 
same  trusts;  and  if  the  laws  authorizing  such  corporations  are  repealed, 
the  court  may  order  such  fund  to  be  transferred  and  deposited  in  such 
banking  institutions  as  it  may  find  proper,  to  be  held  upon  the  trusts 
aforesaid. 


Unclaimed 
deposits. 
Deposits  by 
order  of  the 
court. 

1889,  449,  §  2. 
1894,  317,  §  50. 
R.  L.  113,  §55. 
1908,  590, 
§§  55,  69. 

1918,  257, 
§369. 

1919,  5. 

1920,  2. 


Section  41.     Subject  to  section  twenty-eight  of  chapter  two  hundred  1 

and  si.x,  the  probate  court,  court  of  insolvency  or  other  court,  respec-  2 

ti\'ely,  shall,  upon  the  application  of  a  person  interested  or  of  the  attorney  3 

general,  and  after  public  notice,  order  and  decree  that  all  amounts  of  4 

money  deposited  with  such  corporation,  by  authority  of  any  of  said  courts  5 

or  of  any  judge  thereof,  and  which  shall  have  remained  unclaimed  for  6 

more  than  twenty  years  from  the  date  of  such  deposit,  with  the  increase  7 

and  proceeds  thereof,  shall  be  paid  to  the  state  treasiu-er,  to  be  held  and  8 

used  by  him  according  to  law,  subject  to  be  repaid  to  the  person  ha\'ing  9 

and  establisliing  a  lawful  right  thereto,  with  interest  at  the  rate  of  three  10 

per  cent  per  annum  from  the  time  when  it  is  so  paid  to  said  treasurer  to  1 1 

the  time  when  it  is  paid  over  by  him  to  such  person,  as  provided  in  the  12 

following  section.  13 


Unclaimed 
deposits  to  be 
paid  to  state 
treasurer. 

1907,  340,  §  1. 

1908,  590, 
§§  56,  69. 
1916,  198. 
201  Mass.  23. 


How  Buch 
deposits  may 
be  reclaimed. 
1907,  340,  §  2. 


Section  42.  The  probate  court  shall,  upon  the  application  of  the  at-  1 
torney  general  and  after  public  notice,  order  and  decree  that  all  amounts  2 
of  money  deposited  with  any  such  bank  which  shall  have  remained  un-  3 
claimed  for  more  than  thirty  years  and  which  are  credited  to  depositors  4 
who  cannot  be  found  and  who  have  not  made  a  deposit  on  account  of  the  5 
same  and  have  not  withdrawn  any  part  of  the  principal  or  interest  thereof,  6 
and  on  whose  pass  book  the  interest  has  not  been  added  for  a  period  of  7 
thirty  years,  and  for  wliich  no  claimant  is  known,  shall,  with  the  increase  8 
and  proceeds  thereof,  be  paid  to  the  state  treasurer  to  be  held  subject  to  9 
be  paid  to  the  person  establishing  a  la\\'fid  right  thereto,  in  accordance  10 
with  the  following  section,  with  interest  at  the  rate  of  tliree  per  cent  per  1 1 
annum  from  the  time  when  it  was  so  paid  to  the  said  treasm-er  to  the  time  12 
wlien  it  is  paid  by  him  to  such  person.  After  six  years  from  the  date  13 
when  such  proceeds  were  paid  to  the  said  treasurer  the  same  may  be  14 
used  as  a  part  of  the  ordinary  re^^enue  of  the  commonwealth.  Any  15 
person  may,  however,  establish  his  claim  at  any  time  after  the  expiration  16 
of  the  six  years  above  mentioned,  and  any  claim  so  estabhshed  shall  be  17 
paid  from  the  ordinary  revenue  of  the  commonwealth.  IS 

Section  43.  Any  person  claiming  a  right  to  money  deposited  with  1 
the  state  treasurer  under  either  of  the  two  preceding  sections,  or  section    2 


Ch.^J.    168.]  SAVINGS  B.VNKS.  1875 

3  fifty  of  chapter  one  hundred  and  seventy-two,  may  establish  the  same  laos.  590, 

4  by  a  petition  to  the  probate  court  in  which  the  decree  was  entered;   pro-  unf.'TO.' 

5  \'ided,  tliat  in  cases  where  claims  amount  to  less  than  fifty  dollars,  2oiVa^i'.  23. 

6  the  claims  may  be  presented  to  the  state  auditor,  who  shall  examine  the 

7  same  and  allow  and  certify  for  pajinent  such  as  may  be  proved  to  his 

8  satisfaction. 

1  Section  44.     The  supreme  judicial  coiut  or  any  justice  thereof  sitting  when  reduction 

2  in  equity  may,  on  petition  of  a  savings  bank  or  the  trustees  of  a  sa^•ings  Cl  orS???!™"^ 

3  bank,  approved  by  the  commissioner,  approve  or  order  a  reduction  of  the  \l\g]  3I5;  ^  ^^' 

4  deposit  account  of  each  depositor  therein,  whenever  the  value  of  its  as-  ^^  *^-  **"■ 

5  sets  is  less  than  the  total  amomit  of  its  deposits  so  as  to  divide  the  loss 

6  equitably  among  said  depositors.     If  thereafter  the  bank  shall  realize  from 

7  said  assets  a  greater  sum  than  was  fixed  by  said  order  of  reduction,  such 

8  excess  shall  be  divided  among  the  depositors  whose  accounts  have  been 

9  reduced,  but  to  the  extent  of  such  reduction  only. 

1  Section  4.5.     The  trustees  shall,  immediately  before  making  each  Guaranty  fund 

2  semi-annual  dividend,  set  apart  as  a  guaranty  fund  from  the  net  profits  andmaTn"-'' 

3  which  ha^■e  accumulated  during  the  six  months  last  preceding  not  less  IsTe.'^ios.  §  13. 

4  than  one  eighth  nor  more  than  one  foiuth  of  one  per  cent  of  the  whole  fsg^l;  3V7. II5 

5  amount  of  deposits,  until  such  fund  amounts  to  Hve  per  cent  thereof,  and  f^^-  J.^^'  ^  so. 

6  no  additions  shall  be  made  to  it  when  it  amounts  to  fi^•e  per  cent,  or  more,  ^if^' ?">, 

7  thereof.     Such  fund  shall  thereafter  be  held  to  meet  contingencies  or  sos,  53s. 

8  losses  in  its  business  from  depreciation  of  its  securities,  or  otherwise. 

9  When  such  fund  amounts  to  less  than  fi\'e  per  cent  of  the  whole  amount 

10  of  deposits,  no  losses  shall  be  met  therefrom  except  upon  ■UTitten  approval 

1 1  of  the  commissioner. 

1  Section  46.     Said  trustees,  subject  to  the  ^xitten  approval  of  the  Transfers  to 

2  commissioner,  may  transfer  from  the  profit  and  loss  account  to  the  f9i2!'i22.^""  ' 

3  guaranty  fund  such  amounts,  and  at  such  times,  as  they  deem  for  the 

4  best  interests  of  the  depositors  if  thereby  such  guaranty  fund  is  not 

5  increased  beyond  the  hmit  fixed  by  the  preceding  section. 


1  Section  47.     The  income  of  such  corporation,  after  deducting  the  Manner  of 

2  reasonable  expenses  incurred  in  the  management  thereof,  the  taxes  in™i°e°  ° 

3  paid,  and  the  amounts  set  apart  for  the  guaranty  fund,  shall  be  divided  r.^s.'3o.''§  si"' 

4  among  its  depositors,  or  their  legal  representatives,  at  times  fixed  by  its  q  *|'  Jf H  \lj 

5  by-laws,  in  the  following  manner:    an  ordinary  dividend  shall  be  de-  j?"!'??,?!,;- 

6  clared  every  six  months  from  income  which  has  been  earned,  and  which  is94,  3i7,§2'g. 

7  has  been  collected  during  the  six  months  next  preceding  the  date  of  the  r.  l!  us.  i  31. 

8  dividend,  except  that  there  may  be  appropriated  from  the  earnings  re-  §§  eo.^g.' 

9  maining  undivided  after  declaration  of  the  preceding  semi-annual  divi-  jfl.'i/^' 

10  dend  an  amount  sufficient  to  declare  an  ordinary  dividend  at  a  rate  not  ^-*''  ^  '• 

11  in  excess  thereof;   but  the  total  dividends  declared  during  any  twelve 

12  months  shall  not  exceed  the  net  income  of  the  corporation  actually  col- 

13  lected  during  such  period,  except  upon  written  approval  of  the  com- 

14  missioner.    Dividends  may  be  declared  oftener  than  every  six  months 

15  as  pro\'ided  in  section  seventeen  of  chapter  one  hundred  and  sixty-seven. 

16  Dividends  shall  be  treated  as  deposits,  and  if  not  withdrawn  shall  be 

17  considered,  in  computing  the  dividend  next  following,  as  having  been  on 

18  deposit  for  the  preceding  interest  period.    Ordinary  dividends  shall  not 


1876  SAVIXGS  B.tNKS.  [CsAP.    168. 

exceed  the  rate  of  five  per  cent  a  year.  Xo  ordinary  dividend  shall  19 
be  declared  or  paid  except  as  above  pro\ided,  nor,  except  as  otherwise  20 
provided  by  section  seventeen  of  chapter  one  hundred  and  sixty-seven,  21 
upon  a  deposit  of  less  than  three  months'  standing;  but,  if  the  by-laws  22 
so  proAide,  ordinary  dividends  may  be  declared  and  paid  upon  deposits  23 
of  one,  two,  four  or  fi^'e  months'  standing,  computed  as  provided  in  said  24 
section.  The  corporation  may,  by  its  by-laws,  pro\ide  that  a  dividend  25 
shall  not  be  declared  or  paid  on  less  than  three  dollars,  or  on  the  frac-  26 
tional  part  of  a  dollar.  27 

dfviS's^o  Section  48.     Immediately  before  a  meeting  of  the  trustees  called  1 

by  tri^te^."^  to  consider  the  declaration  of  a  dividend,  the  auditing  committee  shall  2 

sf^l's*^'  make  or  cause  to  be  made  an  examination  of  the  income,  profits  and  ex-  3 

?s-6  2o''?^«''*7  P^'is^^  ^°r  t^^^  ^^^  months'  period  last  preceding  the  date  of  the  declara-  4 

PS.' 116,' §28.'  tion  of  the  dividend,  and  shall  report  to  the  trustees  the  estimated  net  5 

R.  l!ii3!§34!  earnings  of  said  period.    No  dividend  shall  be  paid  unless  declared  and  6 

§§fi,*69.'  authorized  by  the  trustees  after  said  examination,  and  a  copy  of  said  7 

1920.' Ih!  ^  '■  report  shall  be  filed  and  preserved  with  the  records  of  the  corporation.  8 

Op.  A.  G.  (1919)  115. 

Stote""^  Section  49.     If,  at  the  time  provided  by  the  by-laws  for  making  1 

1876  203  ordinary  dividends,  the  net  income  for  the  interest  period  last  preceding,  2 

§  15-'     '  over  and  above  the  amount  to  be  set  apart  for  the  guaranty  fund,  does  3 

p.  s.'iie.i  26.  not  amount  to  one  and  one  half  per  cent  of  the  deposits,  if  said  period  is  4 

R.  l!  113,"  §  32!  six  months,  or  a  proportional  percentage  thereof,  if  the  period  is  less  than  5 

Is^f.'l.'s.'  six  months,  no  dividend  of  the  profits  shall  be  declared  or  paid,  except  6 

ifli.^c^.'  such  as  shall  be  approved  in  writing  by  the  commissioner.  7 

1919,  326,  §  1;  350,  §§45,  46. 

divid°nS"s\aii       SECTION  50.     '^ATienevcr  the  guaranty  fund  and  undivided  net  profits     1 

il76?203, 1 16.  together  amount  to  ten  and  one  quarter  per  cent  of  the  deposits  after  an     2 

^sii  355  ^  ^^'   ordinary  dividend  is  declared,  an  extra  dividend  of  not  less  than  one  quar-     3 

ilge'lsi'  ^^^'  ^^^  o^  ^^^  P^^  ^^^^  shall  be  declared  on  all  amounts  which  have  been  on     4 

R.  L.'  usi  §  33.  deposit  for  the  six  months,  or  not  less  than  one  eighth  of  one  per  cent  on     5 

§§ 63, 69."         all  amounts  %Ahich  ha^-e  been  on  deposit  for  the  three  months,  preced-    6 

2^.  ■        "     ing  the  date  of  such  di\idend,  and  such  extra  diA^dend  shall  be  paid  on     7 

the  day  on  which  the  ordinary  di\-idend  is  paid;   but  in  no  case  shall    8 

the  payment  of  an  extra  dividend  as  herein  provided  reduce  the  guar-    9 

anty  fund  and  undivided  profits  together  to  less  than  ten  per  cent  of  the  10 

deposits.  ■  1 1 


9 


otdeposiTs'           Section  51.    The  principal  deposits  in  such  corporation  may  be  1 
J?^'oc°ii!°-  withdrawn  at  such  time  and  in  such  manner  as  the  bv-laws  direct,  but 

R.  b.  3b,  §  81.         .                                       *.             1                             .                                                 .                ^        ■                 1              •  ,., 

•^^-l' S'- ^  ^ ' '^;  the  treasurer  oi  such  corporation  may  at  any  time  require  a  depositor  3 

p.  s.'ii6,'§"29.'  to  give  a  notice  not  exceeding  ninety  days  of  his  intention  to  withdraw  4 

R.  l'.  113,  §35;  the  whole  or  any  part  of  his  deposit.    Deposits  so  withdrawn  shall  be  5 

ll'M.'eg.'         deducted  in  each  case  from  the  amounts  last  deposited.  6 

127  Mass.  183.  141  Mass.  33. 

onieTafter"           Section  52.     Such  Corporation  may  pay  an  order,  drawn  by  a  per-  1 

dra^xr"^           .son  who  has  funds  on  deposit  to  meet  the  same,  notwithstanding  the  2 

1894'  317'  1 31  ^l^^th  of  the  drawer,  if  presentation  is  made  within  thirty  days  after  the  3 

R.  l'.  113',  1 36.  date  of  such  order;  and  at  anv  time  if  the  corporation  has  not  received  4 

1908,  590.                  .                   •          p    1        ,,,.',        ,  r 

l§65, 69.         written  notice  01  the  death  of  the  drawer.                  211  Mass.  532.  5 


Chap.  168.]  savings  b.anks.  1877 

1  Section  53.    Money  deposited  in  the  name  of  a  minor  may,  at  the  Payments 

2  discretion  of  the  board  of  investment,  or  of  the  treasurer  if  authorized  isssl'sei! 

3  by  said  board,  be  paid  to  such  minor  or  to  the  person  making  such  ^sye.losfut; 

4  deposit ;  and  the  same  shall  be  a  valid  payment.  p.  s.  lie,  §  29. 

1S94,  317.  §  30.  R.  L.  113,  §  35.  1908,  590.  §§  66.  69.  152  Mass.  49. 

INVESTMENTS. 

1  Section  54.     Deposits  and  the  income  derived  therefrom  shall  be  investments 

2  invested  only  as  follows :  p.  sue,  §20.  authorized. 

1S94,  317,  §  21.  R.  L.  113,  §  26.  190S.  590,  §§  68,  69.  134  Mass.  177. 

3  First.    In  first  mortgages  of  real  estate  located  in  the  commonwealth  First  mort- 

4  not  exceeding  sixty  per  cent  of  the  value  of  such  real  estate;    but  not  lsfaTe.°^ '^'"'' 

5  more  than  seventy  per  cent  of  the  whole  amount  of  deposits  shall  be  so  jf ^|'  3^|°;  ig"- 

6  invested.    If  a  loan  is  made  on  unimproved  and  unproductive  real  estate,  P^  fil'^ijQ 

7  the  amount  loaned  thereon  shall  not  exceed  forty  per  cent  of  the  value  i8''2, 293, §3. 

1876  203 

8  of  such  real  estate.    No  loan  on  mortgage  shall  be  made  except  upon  §  9,  ci.i,  §  12. 

9  written  application  showing  the  date,  name  of  applicant,  amount  asked  §'2o,d.\§23. 

10  for  and  security  offered,  nor  except  upon  the  report  of  not  less  than  two  §*2^i%1' 1'.  §  24. 

11  members  of  the  board  of  investment  who  shall  certify  on  said  application,  ?26"cVl'  §  29 

12  according  to  their  best  judgment,  the  value  of  the  premises  to  be  mort-  P^|' J'*9'    gg 

13  gaged;  and  such  application  shall  be  filed  and  preserved  with  the  records  isio,  622,'  §  lo! 

14  of  the  corporation.  §§  45, 46.' 

15  At  the  expiration  of  every  such  loan  made  for  a  period  of  five  or  more  202  Mas3:2i4! 

16  years  not  less  than  two  members  of  the  board  of  investment  shall  certify  f  op^A^G.^434. 

17  in  writing,  according  to  their  best  judgment,  the  value  of  the  premises  fg^"' ^' °' "^' 

18  mortgaged;   and  the  premises  shall  be  revalued  in  the  same  manner  at  3  0p.A.G.2.'i6. 

19  intervals  of  not  more  than  five  years  so  long  as  they  are  mortgaged  to 

20  such  corporation.     Such  report  shall  be  filed  and  preserved  with  the 

21  records  of  the  corporation.    If  such  loan  is  made  on  demand  or  for  a 

22  shorter  period  than  five  years,  a  revaluation  in  the  manner  above  pre- 

23  scribed  shall  be  made  of  the  premises  mortgaged  not  later  than  five  years 

24  after  the  date  of  such  loan  and  at  least  every  fifth  year  thereafter.    If  at 

25  the  time  a  revaluation  is  made  the  amount  loaned  is  in  excess  of  sixty 

26  per  cent,  or  in  the  case  of  unimproved  and  unproductive  real  estate  in 

27  excess  of  forty  per  cent,  of  the  value  of  the  premises  mortgaged,  a  suffi- 

28  cient  reduction  in  the  amount  of  the  loan  shall  be  required,  as  promptly 

29  as  may  be  practicable,  to  bring  the  loan  within  sixty  per  cent,  or  in  the 

30  case  of  unimproved  and  unproductive  real  estate,  -witliin  forty  per  cent, 

31  of  the  value  of  said  premises. 

32  Whenever  the  commissioner  deems  an  excessive  loan  has  been  made, 

33  or  is  about  to  be  made  upon  real  estate,  he  may  cause  an  appraisal  of 

34  said  real  estate  to  be  made  at  the  expense  of  the  bank  making  the  loan. 

35  One  appraiser  shall  be  named  by  the  commissioner,  one  by  the  bank 

36  making  the  loan,  and  a  third  by  the  two  thus  named.    Said  appraisers 

37  shall  determine  the  value  of  said  real  estate  and  certify  the  same  in  UTit- 

38  ing  to  the  commissioner  and  to  the  bank.    If  it  shall  appear  from  said 

39  appraisal  that  said  loan  is  in  excess  of  the  amount  allowetl  by  this  clause, 

40  the  commissioner  may  make  such  order  in  relation  thereto  as  he  deems 

41  ad\'isable. 

42  Second,     (a)  In  the  public  funds  of  the  United  States,  or  of  any  of  f^'j'igo^'l'v. 

43  the  New  England  states. 

R.  S.  36,  §78.  1876,  203.  I  9,  cl.  2.         P.  S.  116,  §  20,  cl.  2. 

G.  S.  57,  §  142.  1880,177.  R.  L.  113,  §  26,  cl.  2  Ca). 

1863,  175,  §  1.  1881,  214,  §  2.  190S.  590,  §  OS,  cl.  2  (a),  §  69. 


1878  SAVINGS  BANKS.  [CH-U".   168. 

ISM,  317,  §  21,      ^^^  j^  ^j^g  bonds  or  notes  of  a  county,  city  or  to-n-n  of  this  common-  44 

S'  2 '(6/.^'  ^  ^*''  wealth.  1908, 590,  §  es,  ci.  2  (6),  §  69.  45 

1885,  111.  (c)  In  the  bonds  or  notes  of  an  incorporated  district  in  this  common-  46 

d'.2\c)'.^'    ^^'  wealth  whose  net  indebtedness  does  not  exceed  five  per  cent  of  the  last  47 

a'2'(^)!''§  69.*'  preceding  valuation  of  the  property  therein  for  the  assessment  of  taxes.     48 

R.  L.  113,  §  26,      (d)  In  the  bonds  or  notes  of  any  city  of  INIaine,  New  Hampshire,  49 

1904, 208.         Vermont,  Rhode  Island  or  Connecticut,  whose  net  indebtedness  does  50 

jL°2*'(d?.°5  69.*'  not  exceed  five  per  cent  of  the  last  preceding  valuation  of  the  property  51 

2^0^'.  1^0.^3.  therein  for  the  assessment  of  taxes;   or  of  any  county  or  town  of  said  52 

states  whose  net  indebtedness  does  not  exceed  three  per  cent  of  such  53 

valuation ;  or  of  any  incorporated  water  district  of  said  states  wliich  has  54 

within  its  limits  more  than  five  thousand  inliabitants,  and  whose  bonds  55 

or  notes  are  a  direct  obligation  on  all  the  taxable  property  of  such  dis-  56 

trict,  and  whose  net  indebtedness  does  not  exceed  three  per  cent  of  such  57 

valuation:  provided,  that  there  is  not  included  within  the  limits  of  such  58 

water  district,  either  wholly  or  in  part,  any  city  or  town  the  bonds  or  59 

notes  of  which  are  not  a  legal  investment.  60 

ills'  124'  (^)  ^^  ^^^®  legally  authorized  bonds  of  the  states  of  New  York,  Penn-  61 

i||7;423:         sylvania,    Ohio,    Indiana,    Illinois,    IMicliigan,    Wisconsin,    INIinnesota,  62 

i89o!  389.         Missouri  and  Iowa,  and  of  the  District  of  Columbia,  and  in  the  legally  63 

li2'(.f).  '   ^''  authorized  bonds  for  municipal  purposes,  and  in  the  refunding  bonds  64 

R.^L.  US,  §  26,  issued  to  take  up  at  maturity  bonds  which  have  been  issued  for  other  65 

i90s,'59b,  §  68,    th3,n  municipal  purposes,  but  on  wliich  the  interest  has  been  fully  paid,  66 

1912  ^580^  Ti    °^  ^^y  ^^^y  °^  *'^^  aforesaid  states  wliich  has  at  the  date  of  such  invest-  67 

I'op'.  A.  G.  190.  nient  more  than  thirty  thousand  inhabitants,  as  established  by  the  last  68 

'''    '      "  '  national  or  state  census,  or  city  census  certified  to  by  the  city  clerk  or  69 

treasurer  of  said  city  and  taken  in  the  same  manner  as  a  national  or  70 

state  census,  preceding  such  investment,  and  whose  net  indebtedness  71 

does  not  exceed  five  per  cent  of  the  valuation  of  the  taxable  property  72 

therein,  to  be  ascertained  by  the  last  preceding  valuation  of  property  73 

therein  for  the  assessment  of  taxes.  74 

m2,  ^8a  ^^^       ^y^  jjj  ^j^g  legally  authorized  bonds  of  the  states  of  California,  Delaware,  75 

'  Nebraska,  New  Jersey,  Oregon  and  Washington,  and  in  the  legally  au-  76 

thorized  bonds  for  municipal  purposes  or  in  refunding  bonds  wliich  have  77 

been  issued  for  other  than  municipal  purposes,  but  on  which  the  interest  78 

has  been  fully  paid,  of  any  city  of  the  states  of  California,  Connecti-  79 

cut,  Delaware,  Illinois,  Indiana,  Iowa,  Kentucky,  Maine,  Maryland,  80 

Massachusetts;  Michigan,  Minnesota,  Missouri,  Nebraska,  New  Hamp-  81 

shire.  New  Jersey,  New  York,  Ohio,  Oregon,  Pennsyh'ania,  Rhode  Island,  82 

Vermont,  Washington  and  Wisconsin,  which  has  at  the  date  of  such  in-  83 

vestment  more  than  one  hundred  thousand  inliabitants,  established  in  84 

the  same  manner  as  is  provided  in  subdivision  (e)  of  this  clause,  and  whose  85 

net  indebtedness  does  not  exceed  seven  per  cent  of  the  valuation  of  the  86 

taxable  property  therein,  established  and  ascertained  as  provided  in  sub-  87 

division  (e)  of  this  clause.  88 

jr2(A^'^"''       (^^  I"  subdivisions  (d),  (c)  and  (/)  of  tliis  clause  the  words  "net  in-  89 

jt't'crt"'  ^"^^  debtedness"  mean  the  indebtedness  of  a  county,  city,  town  or  district,  90 

19^2,580  omitting  debts  created  for  supplying  the  inliabitants  with  water  and  91 

4  Op!  A.  g!  220;  debts  created  in  anticipation  of  taxes  to  be  paid  within  one  year,  and  92 

deducting  the  amount  of  sinking  funds  av'ailable  for  the  pajTnent  of  93 

the  indebtedness  included.  94 

KsMhi^etti^'      Tliird.     (a)  In  the  bonds  or  notes,  issued  in  accordance  with  the  laws  95 

S°'i96  '^^  t^^'s  commonwealth,  of  a  railroad  corporation  incorporated  therein  96 


1894,317,  §21, 


Chap.  168.]  savings  banks.  1879 

97  the  railroad  of  which  is  located  wholly  or  in  part  therein,  which  has  paid  J|  3  ('/^'  ^  ^^• 

98  in  dividends  in  cash  an  amount  equal  to  not  less  than  foiu*  per  cent  per  i?os,  590  §  es, 

99  annum  on  all  its  outstanding  issues  or  capital  stock  in  each  fascal  year  Op.A.c. 

100  for  the  five  years  preceding  such  investment,  or  in  the  first  mortgage 

101  bonds  of  a  terminal  corporation  incorporated  in  this  commonwealth 

102  and  whose  property  is  located  therein,  which  is  owned  and  operated,  or 

103  the  bonds  of  which  are  guaranteed  as  to  principal  and  interest,  or  as- 

104  sumed,  by  such  railroad  corporation.    Any  shares  of  the  capital  stock 

105  of  a  railroad  corporation  leased  to  such  railroad  corporation,  which  are 

106  owned  by  said  lessee  corporation,  shall  not  be  considered  as  outstanding 

107  witliin  the  meaning  of  this  subdivision. 

108  (b)  In  the  bonds  or  assumed  bonds  of  a  railroad  corporation  incor-  New  England 

109  porated  in  any  of  the  New  England  states,  at  least  one  half  of  the  mL^""' 

110  railroad  of  which  is  located  in  said  states,  whether  such  corporation  is  iIto]  203,' |  yj 

111  in  possession  of  and  is  operating  its  own  road  or  is  leased  to  another  f^^^  ^u  51 

112  railroad  corporation:  provided,  either  that  such  bonds  shall  be  secured  psiie,  §20, 
11.3  by  a  first  mortgage  of  the  whole  or  a  part  of  the  railroad  and  railroad  issti,  i76. 

114  property  of  such  corporation,  or  by  a  refunding  mortgage  as  described  in  issoisos! 

115  paragraph  (3)  or  (4)  of  subdivision  (g),  or  that  if  the  railroad  and  rail-  If^s! 

116  road  property  of  such  corporation  are  unencumbered  by  mortgage  such  ci?*iMrf)^  ^' 

117  bonds  shall  be  issued  under  the  authority  of  one  of  said  states  which  ^' 3  (ij'^' ^  ^*'' 
lis  provides  by  law  that  no  such  railroad  corporation  which  has  issued  bonds  J^os,  590, 

1        n  1       *  1  •  1  •  1     S  "^'  Ci-  o  (6), 

119  shall  subsequently  execute  a  mortgage  upon  its  road,  eqiupment  and  §R9- 

120  franchise  or  upon  any  of  its  real  or  personal  property,  without  including  1  op'.  a.g. 

121  in  and  securing  by  such  mortgage  all  bonds  previously  issued  and  all  2 Op. a.g. 257. 

122  its  pre-existing  debts  and  liabilities,  which  provision,  so  enacted  in  such 

123  state,  shall  have  been  accepted  by  the  stockholders  of  such  corporation; 

124  and  provided,  tliat  such  corporation  has  paid  in  dividends  in  cash  an 

125  amount  equal  to  not  less  than  four  per  cent  per  annum  on  all  its  out- 

126  standing  issues  of  capital  stock  in  each  fiscal  year  for  the  five  years 

127  preceding  such  investment. 

128  (c)  In  the  first  mortgage  bonds  or  assumed  first  mortgage  bonds  or  in  Guaranteed 

129  the  bonds  secured  by  a  refunding  mortgage  as  described  in  paragraph  i8S7?'i96.°°  ^' 

130  (3)  or  (4)  of  subdivision  {g),  of  a  railroad  corporation  incorporated  in  any  cul').^*^'  ^ '' 

131  of  the  New  England  states,  the  railroad  of  which  is  located  wholly  or  f2o,cV3(6). 

132  in  part  therein,  which  have  been  guaranteed  as  to  principal  and  interest  Jflvf?";  I9®*' 

133  by  a  railroad  corporation  described  in  subdivision  (a)  or  (6)  which  is  in  1909, 491,  §«. 

134  possession  of  and  is  operating  its  own  road.  a  Op.  a.g.  43, 462. 

135  (d)  No  bond  shall  be  made  a  legal  investment  by  subdivision  (b)  unless  Dividends 

136  the  corporation  which  issued  or  assumed  such  bond  has,  during  its  fiscal  JSiroads. 

137  year  preceding  the  date  of  such  investment,  paid  in  di\ndends  on  its  J|'°3*''(i)',°'  ^  "*' 

138  capital  stock  an  amount  equal  to  one  third  of  the  total  amount  of  inter-  i^os.  49i.  §  s. 

139  est  paid  on  all  its  direct  and  assumed  funded  indebtedness. 

140  No  bond  shall  be  made  a  legal  in^'estment  by  subdivision  (c)  unless  the 

141  corporation  which  guaranteed  such  bond  has,  during  its  fiscal  year  pre- 

142  ceding  such  investment,  paid  in  dividends  on  its  capital  stock  an  amount 

143  equal  to  one  third  of  the  total  amount  of  interest  paid  on  all  its  direct, 

144  assumed  and  guaranteed  funded  indebtedness. 

145  (e)  In  the  mortgage  bonds,  as  described  in  any  of  the  following  sub-  other  railroads. 

146  divisions  of  tliis  clause,  of  any  railroad  corjjoration  incorporated  under  rorpom'tion." 

147  the  laws  of  any  of  the  United  States:  Tscl"'  ^^*' 

148  ProA-ided,  that  during  each  of  tlie  ten  fiscal  years  of  such  railroad  cor-  Jop^a'g^iss. 

149  poration  preceding  the  date  of  such  investment  — 


1880 


SAVINGS  BANKS. 


[Ch.^p.  16S. 


(1)  Such  railroad  corporation  o^-ned  in  fee  not  less  than  fi\e  hundred 
miles  of  standard  gauge  railroad,  exclusive  of  sidings,  within  the  United 
States,  or  if  such  corporation  o\\'ned  in  fee  less  than  five  hundred  niiles 
of  such  railroad,  the  gross  earnings  of  such  corporation,  reckoned  as 
hereinafter  proA'ided,  shall  have  been  not  less  than  fifteen  million  dollars; 

(2)  Such  railroad  corporation  shall  have  paid  the  matiu-ed  principal 
and  interest  of  all  its  mortgage  indebtedness ; 

(3)  Such  railroad  corporation  shaD  ha^■e  paid  in  dividends  in  cash  to 
its  stockholders  an  amount  equal  to  at  least  four  per  cent  upon  all  its 
outstanding  capital  stock; 

(4)  The  gross  earnings  from  the  operation  of  the  property  of  such  rail- 
road corporation,  including  therein  the  gross  earnings  of  all  railroads 
leased  and  operated  or  controlled  and  operated  by  said  corporation,  and 
the  gross  earnings  from  the  sale  of  coal  from  mines  owned  or  controlled 
by  it,  shall  not  have  been  less  in  amount  than  five  times  the  amount 
necessary  to  pay  the  interest  payable  upon  its  entire  outstanding  in- 
debtedness, the  rentals  of  all  leased  lines,  and  the  interest  on  all  the  out- 
standing indebtedness  of  railroads  controlled  and  operated  which  are 
not  owned  by  said  corporation  after  deducting  from  said  interest  and 
rentals  interest  and  di^-idends  received  from  the  stocks,  bonds  or  notes 
of  railroad  corporations  not  operated  by  said  corporation,  wliich  have 
been  deposited  with  a  trustee  as  the  only  security  to  secure  the  pay- 
ment of  bonds  or  notes  issued  by  said  corporation,  but  not  in  excess  of 
the  interest  on  said  last  named  bonds  or  notes; 

And  further  provided  that  — 

(5)  No  bonds  shall  be  made  a  legal  investment  by  subdivision  (g)  in 
case  the  mortgage  securing  the  same  shall  authorize  a  total  issue  of 
bonds  which,  together  with  all  outstanding  prior  debts  of  the  issuing 
or  assuming  corporation,  including  all  bonds  not  issued  that  may 
legally  be  issued  under  any  of  its  prior  mortgages  or  of  its  assumed 
prior  mortgages,  after  deducting  therefrom,  in  case  of  a  refunding  mort- 
gage, the  bonds  reserved  under  the  provisions  of  said  mortgage  to  re- 
tire prior  lien  debts  at  maturity,  shall  exceed  three  times  the  outstand- 
ing capital  stock  of  said  corporation  at  the  date  of  such  investment ; 

(6)  No  bonds  shall  be  made  a  legal  investment  by  subdivision  (i) 
or  (j)  in  case  the  mortgage  securing  the  same  shall  authorize  a  total 
issue  of  bonds  which,  added  to  the  total  debt  of  the  guaranteeing  cor- 
poration as  defined  in  paragraph  (5),  including  therein  the  authorized 
amount  of  all  previously  guaranteed  bond  issues,  shall  exceed  three 
times  the  capital  stock  of  such  guaranteeing  corporation  outstanding 
at  the  date  of  such  investment;  nor  in  case  at  said  date  the  total  debt 
of  the  corporation  wliich  issued  said  bonds  shall  exceed  three  times  its 
outstanding  capital  stock; 

In  the  case  of  a  mortgage  executed  prior  to  June  eighth,  nineteen 
hundred  and  eight,  under  which  the  total  amount  of  bonds  which  may 
be  issued  is  not  specifically  stated,  the  amount  of  bonds  outstanding 
thereunder  at  the  date  of  such  investment  shall  be  considered,  for  the 
purposes  of  paragraph  (5)  and  of  this  paragraph,  as  the  total  authorized 
issue. 

(/)   ^^^lenever  the  term  "first  mortgage"  is  used  in  the  following 

subdivisions,  it  shall  mean,  unless  otherwise  qualified,  a  first  mortgage 

is^.  59o°§ 68,  on  not  less  than  seventy-five  per  cent  of  the  railroad  owned  in  fee  at  the 

date  of  tlie  mortgage  by  the  railroad  corporation  on  the  railroad  of 

which  said  mortgage  is  a  lien,  but  in  no  case  on  less  than  one  hundred 


Description 
of  bonds. 
Definition  of 
first  mortgage. 


78 
79 
SO 
81 
82 
83 
84 
85 
86 
87 
88 
89 
90 
91 
92 
93 
94 
95 
96 
97 
98 
99 
200 
201 
202 
203 


Caxv.  16S.]  SAVINGS  b.\nks.  1881 

204  continuous  miles  of  standard  gauge  railroad,  exclusive  of  sidings:   pro- 

205  videdthat  — 

206  Seventy-five  per  cent  of  the  railroad  subject  to  the  lien  of  said  luort- 

207  gage  is  connected; 

208  For  five  years  prior  to  the  date  of  investment  therein  all  the  railroad 

209  subject  to  the  lien  of  said  mortgage  at  the  date  of  execution  thereof 

210  has  been  operated  by,  and  its  operations  included  in,  the  operations  of 

211  the  railroad  corporation  which  issues,  assumes  or  guarantees  said  bonds; 

212  The  date  of  said  mortgage  is  at  least  five  years  prior  to  the  date  of 

213  such  investment;    except  that  a  first  mortgage  given  in  substitution 

214  for  and  not  greater  in  amount  than  such  a  first  mortgage,  and  covering 

215  the  same  railroad  property,  shall  be  considered  to  be  in  accordance 

216  with  this  requirement. 

217  (g)  Bonds  issued  or  assumed  by  a  railroad  corporation  described  in  Railroad 

218  subdi^-ision  (e)  which  are  seemed  by  a  mortgage  which  was  at  the  date  "on"!!'^'' 

219  thereof  or  is  at  the  date  of  such  investment  —  JlT  tof'  ^  *^*' 

220  (1)  A  first  mortgage  on  a  railroad  owned  in  fee  by  the  corporation 

221  issuing  or  assmning  said  bonds,  except  that,  if  it  is  not  a  first  mortgage 

222  on  se\'enty-five  per  cent  of  all  such  railroad  o\\aied  in  fee  by  said  corpo- 

223  ration,  it  shall  be  a  first  mortgage  on  at  least  seventy-five  per  cent  of  the 

224  railroad  subject  to  the  lien  of  said  mortgage  at  the  date  thereof;    but 

225  if  any  stocks  or  bonds  are  deposited  with  the  trustee  of  said  mortgage 

226  as  part  security  therefor,  representing  or  covering  railroad  mileage  not 

227  owned  in  fee,  the  bonds  secured  by  said  mortgage  shall  not  become  legal 

228  investments  unless  said  corporation  ownis  in  fee  at  least  seventy-five 

229  per  cent  of  the  total  mileage  which  is  subject  to  the  lien  of  said  mortgage 

230  and  which  is  represented  or  covered  by  said  stocks  or  bonds; 

231  (2)  A  first  mortgage,  or  a  mortgage  or  trust  indenture  wliich  is  in 

232  effect  a  first  mortgage  upon  all  the  railroad  subject  to  the  hen  of  said 

233  mortgage  or  trust  indentiu-e  by  virtue  of  the  irrevocable  pledge  with 

234  the  trustee  thereof  of  an  entire  issue  or  issues  of  bonds  which  are  a  first 

235  lien,  upon  the  railroad  of  a  railroad  corporation  which  is  owned  and 

236  operated,  controlled  and  operated  or  leased  and  operated  by  the  corpo- 

237  ration  issuing  or  assuming  said  bonds; 

238  (3)  A  refunding  mortgage  which  covers  at  least  seventy-five  per  i909, 491.  §  s. 

239  cent  of  the  railroad  owned  in  fee  by  said  corporation  at  the  date  of 

240  said  mortgage  and  provides  for  the  retirement  of  all  outstanding  mort- 

241  gage  debts  which  are  a  prior  lien  upon  said  railroad  owned  in  fee  and 

242  covered  by  said  refunding  mortgage  at  the  date  thereof;    but  if  any 

243  of  the  bonds  which  said  refunding  mortgage  is  given  to  refund  are  se- 

244  cured  on  a  railroad  not  owmed  in  fee  by  the  corporation  executing  said 

245  refunding  mortgage,  there  shall  be  conveyed  and  assigned  to  the  trustee 

246  of  said  refunding  mortgage  either  ■ — 

247  At  least  seventy-five  per  cent  of  the  railroad  on  which  each  issue  of 

248  bonds  to  be  refunded  is  secured,  free  from  any  mortgage  hen  except 

249  that  of  the  mortgage  or  mortgages  securing  the  bonds  to  be  refunded; 

250  or 

251  At  least  seventy-five  per  cent  of  the  outstanding  bonds  of  each  issue 

252  •^\liich  is  secured  by  a  mortgage  hen  upon  such  railroad;    and  all  of 

253  said  railroad  not  owned  in  fee  which  is  so  subjected  to  the  hen  of  said 

254  refunding  mortgage  shall  be  the  railroad  of  one  or  more  railroad  cor- 

255  porations  which  are  owned  and  operated,  controlled  and  operated,  or 

256  leased  and  operated  by  the  corporation  issuing  or  assuming  said  re- 

257  funding  mortgage  bonds; 


1882  SAVINGS  BANKS.  [Ch,4.P.    1G8. 

But  in  no  case  shall  the  bonds  secured  by  said  refunding  mortgage  258 

become  a  legal  investment  unless  they  mature  at  a  later  date  than  any  259 

bonds  M'liich  said  refunding  mortgage  is  given  to  refmid,  nor  unless  the  260 

total  mileage  subjected  to  the  lien  of  said  refimding  mortgage  in  ac-  261 

cordance  with  the  requirements  of  this  paragraph  is  at  least  twenty-  262 

five  per  cent  greater  than  the  mileage  covered  by  any  one  of  the  mort-  263 

gages  securing  bonds  which  said  refunding  mortgage  is  given  to  refund;  264 

(4)  A  mortgage  upon  not  less  than  ten  per  cent  of  the  railroad,  ex-  265 

elusive  of  sidings,  owned  in  fee  at  the  date  of  said  mortgage  by  the  266 

corporation  issuing  or  assuming  said  bonds,  but  in  no  case  on  less  than  267 

five  hundred  continuous  miles  of  standard  gauge  railroad:    p^o^■ided  268 

that  —  269 

Said  mortgage  is  a  first  or  second  lien  upon  not  less  than  seventy-  270 

five  per  cent  of  the  total  railroad  covered  by  said  mortgage  at  the  date  271 

thereof,  and  which  provides  for  the  retirement  of  all  mortgage  debts  272 

which  are  a  prior  lien  upon  said  railroad  owned  in  fee  and  covered  by  273 

said  mortgage,  at  the  date  of  the  execution  tliereof;  274 

The  bonds  secured  by  said  mortgage  mature  at  a  later  date  than,  275 

and  cover  a  mileage  at  least  twenty-five  per  cent  greater  than  is  covered  276 

by,  any  of  the  bonds  secured  by  a  prior  lien  mortgage  so  to  be  retired ;  277 

Tlie  date  of  said  mortgage  shall  be  at  least  five  years  prior  to  the  278 

date  of  such  investment.  279 

^°ng  refunding       (A)  Mortgage  bonds  or  bonds  secured  by  mortgage  bonds  which  are  280 

i908,^59a  §  68,  a  direct  obligation  of,  or  wliich  have  been  assumed,  or  which  have  been  281 

ci.  3  (A).  guaranteed  by  endorsement  as  to  both  principal  and  interest,  by  a  282 

railroad  corporation  whose  refunding  mortgage  bonds  are  made  a  legal  283 

investment  under  paragraph  (3)  or  (4)  of  subdivision  (g) :  provided  that — •  284 

Said  bonds  are  prior  to  and  are  to  be  refunded  by  such  refunding  285 

mortgage;  286 

Said  refunding  mortgage  covers  all  the  real  property  upon  which  the  287 

mortgage  securing  said  underlying  bonds  is  a  lien;  288 

In  the  case  of  bonds  so  guaranteed  or  assumed,  the  corporation  issuing  289 

said  bonds  is  owned  and  operated,  controlled  and  operated,  or  leased  and  290 

operated,  by  said  railroad  corporation.  291 

owf^aSonf  (^)    Bonds  which  have  been  guaranteed  by  endorsement  as  to  both  292 

d-*f'(ff°'  ^'^*'  principal  and  interest  by  a  railroad  corporation  which  has  comphed  with  293 

2bp.A".G.257.  all  the  provisions  of  subdivision  (e):  provided  that —  294 

Said  bonds  are  seciu-ed  by  a  first  mortgage  on  the  railroad  of  a  rail-  295 

road  corporation  which  is  owned  and  operated,  controlled  and  operated,  296 

or  leased  and  operated,  by  the  corporation  guaranteeing  said  bonds;  297 

In  the  case  of  a  leased  railroad,  the  entire  capital  stock  of  which,  298 

except  shares  qualifying  directors,  is  not  owned  by  the  lessee,  the  rental  299 

includes  an  amount  to  be  paid  to  the  stockliolders  of  said  leased  rail-  300 

road  equal  to  at  least  four  per  cent  per  annum  upon  that  portion  of  301 

tlie  entire  capital  stock  thereof  outstanding  which  is  not  owned  by  the  302 

lessee.  303 

bondsM*"'''  ^^^   First  mortgage  bonds  of  a  railroad  corporation  wliich  diu-ing  304 

railroads  not      each  of  its  ten  fiscal  years  preceding  the  date  of  such  investment  has  305 

1908, 590,  §  OS,  complied  with  all  the  requirements  of  paragraphs  (2),  (3)  and  (4)  of  306 

1909,491,18.    subdivision  (e),  provided  that  said  bonds  are  guaranteed  by  endorse-  307 

ment  as  to  both  principal  and  interest  by  a  railroad  corporation  which  308 

has  complied  with  all  the  requirements  of  subdivision  (e)  preceding  309 

paragraph  (5),  notwithstanding  that  the  railroad  of  said  issuing  corpo-  310 

ration  is  not  operated  by  said  guaranteeing  corporation.  311 


Chap.  168.]  SAvmcs  b.vntks.  1883 

312  (/r)  Bonds  which  have  been  or  shall  become  legal  investments  under  Corporation 

313  any  of  the  provisions  of  this  section  shall  not  be  rendered  illegal  al-  ?r°edit  by^" 

314  though  the  corporation  issuing,  assuming  or  guaranteeing  such  bonds  aTtSSIZce  of 

315  shall  fail  for  a  period  not  exceeding  two  successive  fiscal  years  to  com-  grlfssearn^ings 

316  ply  M'ith  the  requirements  of  paragraph  (4)  of  subdivision  (e);    but  no  Jg^^^^g 

317  fiu-ther  investment  in  the  bonds  issued,  assumed  or  guaranteed  by  said  ^?°?',??°'  ^''*' 

318  corporation  shall  be  made  during  said  period.     If  after  the  expiration 

319  of  said  period  said  corporation  complies  for  the  following  fiscal  year 

320  with  all  the  requirements  of  subdivision  (e),  it  shall  be  regarded  as 

321  having  complied  therewith  during  said  period. 

322  (/)   Bonds  wliich  have  been  or  shall  become  legal  investments  under  Bonds  not  to 

323  any  of  the  pro\isions  of  this  section  shall  not  be  rendered  illegal,  al-  on™™ount  wt 

324  though  the  property  upon  which  they  are  seciu-ed  has  been  or  shall  be  igSI?^^'! es, 

325  conveyed  to  or  legally  acquired  by  another  railroad  corporation,  and  "='•  ^  "'• 

326  although  the  corporation  which  issued  or  assumed  said  bonds  has  been 

327  or  shall  be  consolidated  with  another  railroad  corporation  if  the  con- 

328  solidated  or  pm-chasing  corporation  shall  assume  the  pajTuent  of  said 

329  bonds  and  so  long  as  it  shall  continue  to  pay  regularly  interest  or  di\i- 

330  dends,  or  both,  upon  the  securities  issued  against,  in  exchange  for,  or 

331  to  acquire  the  stock  of  the  corporation  consolidated,  or  the  property 

332  purchased,  or  upon  securities  subsequently  issued  in  exchange  or  substi- 

333  tution  therefor,  to  an  amount  at  least  equal  to  foiu"  per  cent  per  annum 

334  upon  the  capital  stock  outstanding  at  the  time  of  such  consohdation 

335  or  pm-chase  of  said  corporation  which  issued  or  assumed  said  bonds. 

336  (m)  If  a  railroad  corporation  which  has  complied  with  all  the  re- Credit  of  a 

337  quirements  of  subdi\T[sion  (e)  preceding  paragraph  (5),  except  that  the  no7tobe°iost 

338  period  of  compliance  is  less  than  ten,  but  not  less  than  five  successive  uon™^"'"^"" 

339  years,  shall  be,  or  shall  have  been,  thereupon  consolidated  or  merged  ^il's^cm^)"'  ^  '^^' 

340  with,  or  its  railroad  purchased  and  all  of  the  debts  of  such  corporation 

341  assumed  by,  another  railroad  corporation  incorporated  under  the  laws 

342  of  any  of  the  United  States,  such  corporation  so  succeeding  shall  be 

343  considered  as  having  complied  with  all  the  provisions  of  subdivision  (e) 

344  preceding  paragraph  (5)  during  those  successive  years  preceding  the 

345  date  of  such  consolidation,  merger  or  purchase  in  which  all  said  con- 

346  solidated,  merged  or  purchased  corporations,  if  considered  as  one  contin- 

347  uous  corporation  in  ownership  and  possession,  would  have  so  complied; 

348  provided,   that  said  succeeding  corporation  shall  continue  so  to  com- 

349  ply  for  a  further  period  which  shall  make  such  compliance  ecjuivalent 

350  to  at  least  ten  successive  years,  but  wliich  shall  be  in  no  case  less 

351  than  the  two  fiscal  years  next  following  said  consolidation,  merger  or 

352  piu-chase. 

353  (n)  In  this  clause,  unless  the  context  otherwise  requires,  "railroad  foS^orat^ons^''' 

354  corporation"  means  a  corporation  which  owns  or  is  in  possession  of  and  "■■«  not  railroad 

.,,  .,  I'll  11  11  corporations. 

355  operating  a  railroad  or  railway  or  the  class  usually  operated  by  steam  isos  590,  §  es, 

356  power.    Street  railway  corporations  are  not  raihoad  corporations  within 

357  the  meaning  of  this  clause. 

358  (o)  Railroad  bonds,  wluch  were  legal  investments  for  savings  banks  Operation  of 

359  at  the  time  when  the  government  of  the  United  States,  under  the  act  of  United  states. 

360  congress  approved  March  twenty-first,  nineteen  hundred  and  eighteen,  1920!  420. 

361  took  over  the  operation  of  the  railroads  issuing  such  bonds,  shall  not 

362  become  illegal  investments  by  reason  of  the  operation  of  the  railroads 

363  by  the  federal  government.    The  time  during  which  any  such  railroad 

364  is  operated  by  the  federal  government  shall  be  excluded,  including  the 

365  year  in  which  the  government  operation  ends,  in  determining  the  com- 


1884  SAVINGS  B.«rKs.  [Ch.\p.  168. 

pliance  of  any  such  railroad  with  this  clause;   proA-ided,  that  in  case  a  366 

raiboad  corporation  the  mortgage  bonds  of  which  would  become  legal  367 

for  investment  under  subdivision  (e)  of  this  clause  upon  its  compliance  368 

with  the  requirements  of  said  subdi\'ision  shall  have  complied  with  the  369 

requirements  of  said  subdivision  during  the  two  years  or  more  preced-  370 

ing  January  first,  nineteen  hundred  and  eighteen,  such  railroad  cor-  371 

poration  shall  be  deemed  to  have  complied  with  the  requirements  of  372 

said  subdivision  during  the  period  of  the  government  operation  of  its  373 

raOroad,  including  the  year  in  which  such  government  operation  ends,  374 

in  computing  the  time  of  compliance  with  the  requirements  of  said  375 

subdivision.  376 

The  time  during  which  any  railroad  is  operated  by  the  government  377 

of  the  United  States  under  the  pro\asions  of  an  act  of  congress  approved  378 

August  twenty-ninth,  nineteen  hundred  and  sixteen,  of  an  act  of  con-  379 

gress  approved  ]March  twenty-first,  nineteen  hundred  and  eighteen,  or  of  380 

any  other  act  or  acts  of  the  congress  of  the  United  States,  and  for  two  381 

years  thereafter,  and  the  earnings  made  and  di\'idends  paid  during  said  382 

time  and  for  said  two  years  thereafter  shall  not  be  taken  into  considera-  383 

tion  in  determining  whether  the  bonds  of  the  raihoad  corporation  comply  384 

with  any  provision  of  this  section.     Any  railroad  corporation,  which,  385 

at  the  time  when  the  operation  of  its  railroad  by  the  government  of  the  386 

United  States  under  the  provisions  of  the  said  act  or  acts  began,  had  387 

complied  with  subdivision  (e)  of  this  clause,  for  one  or  more  years  next  388 

preceding  the  commencement  of  such  government  operation  and  control  389 

shall  be  entitled  to  include,  in  computing  the  period  of  ten  years  pre-  390 

scribed  by  said  subdivision  e\ery  year  during  any  part  of  which  its  rail-  391 

road  shall  have  been  operated  by  the  government  of  the  United  States  392 

under  the  provisions  of  said  act  or  acts,  and  the  two  years  succeeding  393 

the  termination  of  such  operation,  in  determining  whether  such  corpora-  394 

tion  has  complied  \\-ith  said  subdivision  (e)  each  year  for  ten  years.  Except  395 

as  pro\'ided  in  tliis  subdi\'ision,  whenever  a  reference  is  made  in  said  396 

subdivision  (e)  to  a  period  of  ten  years  preceding  the  date  of  an  invest-  397 

ment  in  the  bonds  of  any  railroad  corporation,  such  period  shall  be  398 

deemed  exclusive  of  any  time  during  wliich  the  property  of  such  rail-  399 

road  corporation  has  been  operated  by  the  govenmaent  of  the  United  400 

States  under  the  pro\'isions  of  the  said  acts  and  of  the  two  years  sue-  401 

ceeding  tlie  termination  of  such  operation.  402 

Any  bonds  acquired  by  sa\ings  banks  or  institutions  for  sa\'ings  prior  403 

to  May  se^'enth,  nineteen  hundred  and  twenty,  or  at  any  time  there-  404 

after,  wliich  comply  v^ith  this  clause  may,  so  long  as  they  continue  to  405 

comply  therewith,  be  retained  as  investments  authorized  by  law.  406 

IS/^'''''''        Fourth.     In  tlie  bonds  of  any  street  railway  company  incorporated  in  407 

1906;  204'.         this  commonwealth,  the  railway  of  which  is  located  wholly  or  in  part  408 

iiVss'uV^^^'  therein,  and  wliich  has  earned  and  paid  in  dividends  in  cash  an  amount  409 

i|S- 158-  '       equal  to  at  least  five  per  cent  upon  all  its  outstanding  capital  stock  in  410 

§  68.'ci.  s".  §  69.  each  of  the  five  years  last  preceding  the  certification  hereinafter  pro-  411 

i9i5!273;  §  L    \ided  for  by  the  department  of  public  utilities  or  its  predecessors  except  412 

§§'2%';^^'         the  six  months'  period  beginning  July  first  and  ending  December  thirty-  413 

§5  «.^46.'  117.    ^''^t,  nineteen  hundred  and  sixteen.    No  such  investment  shall  be  made  414 

3  Op.  A.  G.  338.  unless  Said  company  appears  from  returns  made  by  it  to  the  said  depart-  415 

ment  to  have  properly  paid  said  dividends  without  imp;iirnient  of  assets  416 

or  capital  stock,  and  said  department  shall  annually  on  or  before  June  417 

fifteenth  certify  and  transmit  to  the  commissioner  a  list  of  such  street  418 

railway  companies.  419 


Ch.\P.   168.]  SAVINGS  BANKS.  1885 

420  Dividends  paid  by  way  of  rental  to  stockholders  of  a  leased  street 

421  railway  company  shall  be  deemed  to  ha^'e  been  earned  and  paid  by  said 

422  company  within  the  meaning  of  this  clause,  provided  that  said  com- 

423  pany  shall  have  annually  earned,  and  properly  paid  in  dividends  in  cash, 

424  without  impairment  of  assets  or  capital  stock,  an  amount  equal  to  at 

425  least  five  per  cent  upon  all  its  outstanding  capital  stock  in  each  of  the 

426  five  fiscal  years  preceding  the  date  of  the  lease  thereof. 

427  If  two  or  more  street  railway  companies  have  been  consolidated  by 

428  piu-chase  or  otherwise  diuing  the  five  years  prior  to  said  certification, 

429  the  payment  severally  from  the  earnings  of  each  year  of  di\ddends 

430  equivalent  in  the  aggregate  to  a  dividend  of  five  per  cent  on  the  ag- 

431  gregate  capital  stocks  of  the  se\'eral  companies  during  the  years  pre- 

432  ceding  such  consolidation  shall  be  sufficient  for  the  piu-pose  of  this 

433  clause. 

434  Bonds  which  have  been  or  shall  become  legal  investments  under  i9i5, 273,  §  1. 

435  this  clause  shall  not,  except  as  hereinafter  provided,  be  deemed  to  be 

436  an  illegal  in\-estment  by  reason  of  the  fact  that  the  corporation  issuing 

437  such  bonds  shall  fail  or  has  heretofore  failed  for  a  period  not  exceeding 

438  two  successive  fiscal  years  to  earn  and  pay  dividends  in  accordance  M-ith 

439  the  requirements  of  this  clause,  but  no  further  investment  in  the  bonds 

440  issued  by  the  corporation  shall  be  made  during  said  period.    If  after  the 

441  expiration  of  said  period  the  corporation  earns  and  pays  or  has  earned 

442  and  paid  di\'idends  during  the  following  fiscal  year  in  accordance  with 

443  the  requirements  of  this  clause,  it  shall  be  regarded  as  ha^'ing  complied 

444  therewith  during  said  period:  provided,  that  it  shall  not  have  so  failed 

445  to  comply  dm-ing  any  other  period  within  the  preceding  five  years;  and 

446  pro^'ided,  that  diu-ing  said  period  of  non-compliance  its  annual  earnings 

447  shall  have  been  at  least  sufficient  to  provide  for  the  paj-ment  of  the  in- 

448  terest  upon  its  outstanding  indebtedness  and  all  other  fixed  charges  in 

449  addition  to  its  operating  expenses.    The  said  department  shall  certify 

450  and  transmit  to  the  commissioner  a  fist  of  any  street  railway  companies 

451  whose  bonds  become  legal  investments  by  \artue  of  this  paragraph. 

452  Fifth.     In  the  bonds  of  any  telephone  company  subject  to  section  Telephone 

453  fifty-three  of  chapter  sixty-three  and  of  which  a  majority  of  the  directors  bo™(S'°* 

454  are  residents  of  the  commonwealth:  Jf°|'  ^^°-  ^  ®*' 

455  Provided,  that  during  each  of  the  five  fiscal  years  of  such  telephone 

456  company  preceding  the  date  of  such  investment  — 

457  (1)  The  gross  income  of  such  telephone  company  shall  have  been 

458  not  less  than  ten  million  dollars  per  annum. 

459  (2)  Such  telephone  company  shall  have  paid  the  matiued  principal 

460  and  interest  of  all  its  indebtedness. 

461  (3)  Such  telephone  company  shall  have  paid  in  dividends  in  cash  an 

462  amoimt  equal  to  not  less  than  six  per  cent  per  annum  on  all  its  out- 

463  standing  issues  of  capital  stock. 

464  (4)  The  di\'idendspaid  on  the  capital  stock  of  such  telephone  company 

465  shall  not  have  been  less  than  the  total  amount  necessary  to  pay  the 

466  interest  upon  its  entire  outstanding  indebtedness. 

467  And  further  provided,  that  such  bonds  shall  be  secured  either  (a)  by 

468  a  first  mortgage  upon  at  least  seventy-five  per  cent  of  the  property  of 

469  such  telephone  company,  or  (6)  by  the  deposit  with  a  trust  company 

470  incorporated  under  the  laws  of  tliis  commonwealth  of  bonds  and  shares 

471  of  stock  of  other  telephone  corporations,  under  an  indenture  of  trust 

472  which  limits  the  amount  of  bonds  so  secured  to  seventy-five  per  cent  of 

473  the  value  of  the  securities  deposited  as  stated  and  determined  in  said 


1886 


SAVINGS  B.USTKS. 


[Ch.u>.  168. 


Gaa,  electric  or 
water  com- 
pany bonds. 
1919,  104,  J  2. 


Bank  stocks 
and  deposits 
in  banks. 
1834,  190.  §  7. 
R.  S.  36,  §  78. 
1855,  294. 
G.  S.  57, 
§§  142-144. 
1863,  175, 
§§  2,  3;  234. 
1S&4.  2. 
1868,  227. 
1876,  203,  5  9, 
cl.  4. 

1881,214,  I  3. 
P.  S.  116,  §  20, 
cl.4. 

1882,  224. 

1883,  202. 
1886, 95. 
1890, 168. 
1894,  317, 
§  21,  cl.  5. 
R.  L.  113. 
§  26,  cl.  5. 
1908,  590, 
§  68.  cl.  7. 
131  Mass.  103. 


Bankers' 
acceptances. 
191S,  210. 


Loans  on  per- 
sonal security. 
1834,  190.  §  8. 
R.  S.  36,  S  79. 
G.  S.  57,  i  Mo. 
1876,  203,  §  9, 
cl.5. 


indenture,  and  provided  that  during  each  of  the  five  years  preceding 
such  investment  the  annual  interest  and  di^^dends  paid  in  cash  on  the 
securities  deposited  have  amounted  to  not  less  than  fifty  per  cent  in  ex- 
cess of  the  annual  interest  on  the  bonds  outstanding  and  secured  by  said 
deposit.  Not  more  than  two  per  cent  of  the  deposits  of  any  such  bank 
shall  be  invested  in  the  bonds  of  telephone  companies. 

Si.vth.  In  the  bonds  of  a  gas,  electric  or  water  company  seciu-ed  by 
a  first  mortgage  of  the  franchise  and  property  of  the  company :  pro\T[ded, 
that  the  net  earnings  of  the  company,  after  paj-ment  of  all  operating 
expenses,  taxes  and  interest,  as  reported  to,  and  according  to  the  require- 
ments of,  the  proper  authorities  of  the  commonwealth,  have  been  in 
each  of  the  three  fiscal  years  preceding  the  making  or  renewing  of  such 
loan  equal  to  not  less  than  fom-  per  cent  on  all  its  capital  stock  out- 
standing in  each  of  said  years;  and,  provided,  that  the  gross  earnings 
of  the  company  in  the  fiscal  year  preceding  the  making  or  renewing  of 
the  loan  have  been  not  less  than  one  hundred  thousand  dollars. 

Seventh.  In  the  stock  of  a  banking  association  located  in  the  New 
England  states  and  incorporated  under  the  authority  of  the  United 
States,  or  in  the  stock  of  a  trust  company  incorporated  under  the  laws 
of  and  doing  business  within  this  commonwealth,  but  such  corporation 
shall  not  hold,  both  by  way  of  investment  and  as  security  for  loans, 
more  than  twenty  per  cent  of  its  deposits  in  the  stock  of  such  associations 
or  companies,  nor  in  any  one  such  association  or  company  more  than 
three  per  cent  of  its  deposits  in,  nor  more  than  one  hundred  thousand 
dollars  nor  more  than  one  quarter  of  the  capital  stock  of,  such  association 
or  company. 

Such  corporation  may  deposit  not  more  than  two  and  one  half  pei". 
cent  of  its  deposits  in  any  banking  association  incorporated  under  the 
authority  of  the  United  States  and  located  in  tliis  commonwealth,  and 
in  any  trust  company  incorporated  in  this  commonwealth;  but  such 
deposit  shall  not  in  any  case  exceed  fi^'e  hundred  thousand  dollars 
nor  twenty-five  per  cent  of  the  capital  stock  and  surplus  fund  of  such 
depositary. 

Eighth.  In  bankers'  acceptances  and  bills  of  exchange  of  the  kinds 
and  maturities  made  eligible  by  law  for  rediscount  ^\ith  federal  reserve 
banks,  pro\'ided  that  the  same  are  accepted  by  a  bank,  banking  associ- 
ation or  trust  company  incorporated  under  the  laws  of  the  United  States 
or  of  tills  commonwealth,  and  having  its  principal  place  of  business 
within  the  commonwealth.  Not  more  than  ten  per  cent  of  the  deposits 
and  of  the  income  derived  therefrom  shall  be  invested  by  any  sa-vings 
bank  in  bankers'  acceptances  or  bills  of  exchange,  nor  shall  any  sa\'ings 
bank  invest  in  the  acceptances  and  bills  of  exchange  ehgible  by  law  for 
rediscount  with  federal  reserve  banks  of  any  one  accepting  bank  or 
trust  company'  to  an  amount  in  excess  of  {ire  per  cent  of  its  deposits  and 
of  the  income  derived  therefrom.  The  aggregate  amount  of  bankers' 
acceptances  and  bills  of  exchange  of  any  bank,  banking  association  or 
trust  company  held  by  any  sa\'ings  bank  shall  not  exceed  twenty-five  per 
cent  of  the  paid-up  capital  and  surplus  of  such  bank,  banking  association 
or  trust  company. 

Ninth.  In  loans  of  the  classes  hereinafter  described,  payable  and  to  be 
paid  or  renewed  at  a  time  not  exceeding  one  year  from  the  date  thereof; 
but  not  more  than  one  third  of  the  deposits  and  income  shall  so  be  in- 
vested, nor  shall  the  total  liabilities  to  such  corporation  of  a  person,  part- 


474 

475 

476 

477 

478 

479 

480 

481 

482 

483 

484 

48.5 

486 

487 

488 

489 

490 

491 

492 

493 

494 

495 

496 

497 

498 

499 

500 

501 

502 

503 

504 

505 

506 

507 

508 

509 

510 

511 

512 

513 

514 

515 

516 

517 

518 

519 

520 

521 

522 

523 

524 

525 

526 


Chap.  16S.]  savings  b.ustks.  1887 

527  nersliip,  association  or  corporation  for  money  borrowed  upon  personal  ps.  iic,  §20, 

528  security,  including  in  the  liabilities  of  a  partnership  or  company  not  in-  i8S4, 50;  10s. 

529  corporated  the  liabilities  of  the  several  members  thereof ,  exceed  five  per  ism!  317, 

530  cent  of  such  deposits  and  income;  but  said  limitations,  except  as  to  time  r"l'.  na,  §  20, 

531  in  wliich  said  loans  shall  be  paid  or  renewed,  shall  not  apply  to  loans  I'go^s.sgo,  §U8, 

532  made  under  paragraph  (2)  subdivision  (e)  of  this  clause.      1009,491,  §8.       ci.  s,  §69. 

533  (a)  A  note  which  is  tlie  joint  and  se^'eral  obligation  of  three  or  more  Note  of  three 

534  responsible  citizens  of  this  commonwealth ;  pro^■ided,  that  the  total  lia-  igos^MO,  §  es, 

535  bilities  to  such  corporation  of  a  person,  partnership  or  association,  for  "'  ®  ^"*- 

536  money  borrowed  under  this  subdivision,  including  in  the  liabilities  of  a 

537  partnership  or  company  not  incorporated  the  liabilities  of  the  several 

538  members  thereof,  shall  not  exceed  one  per  cent  of  the  deposits  of  such 

539  corporation. 

540  (6)  A  note,  with  one  or  more  substantial  sureties  or  endorsers:   (1)  of  not?""^^''"" 

541  a  corporation  incorporated  in  this  commonwealth ;    or  (2)  of  a  manu-  '{"^Vj?"'  ^  ^*' 

542  facturing  corporation  with  a  comnussion  house  as  surety  or  endorser,  i909, 491,  §  s. 

543  pro\-ided  that  such  commission  house  is  incorporated  in  this  common-  §§45,46.' 

544  wealth,  or  has  an  established  place  of  business  and  a  partner  resident 

545  therein;  or  (3)  of  an  association  or  corporation  at  least   one  half  of 

546  the  real  and  personal  property  of  which  is  located  within  the  New  Eng- 

547  land  states,  if  at  least  one  such  surety  or  endorser  is  a  citizen  of  or  cor- 

548  poration  incorporated  in  this  commonwealth;    provided,  that  no  such 

549  loan  shall  be  made  or  renewed  imless  within  eighteen  months  preceding 

550  the  making  or  renewing  of  such  loan  an  examination  of  the  affairs,  assets 

551  and  liabilities  of  the  borrowing  corporation    or  association   has   been 

552  made,  at  the  expense  of  such  borrowing  corporation  or  association,  by 

553  an  accountant  approved  by  the  commissioner.     The  report  of  such  ex- 

554  amination  shall  be  made  in  such  form  as  the  commissioner  may  pre- 

555  scribe.     A  copy  of  the  report  certified  to  by  the  accountant  shall  be 

556  delivered  by  the  borrowing  corporation  or  association  to  the  savings 

557  bank  before  such  loan  or  a  renewal  thereof  is  made,  and  a  copy  so  cer- 

558  tified  shall  be  delivered  by  the  accountant  to  the  commissioner  witliin 

559  tliirty  days  after  the  completion   of  said  examination. 

560  (c)  A  bond  or  note  of  a  gas,  electric  light,  telephone  or  street  railway  Nptes  of  cer- 


561  corporation  incorporated  or  doing  business  in  tliis  commonwealth  and  service 

562  subject  to  the  control  and  supervision  thereof:   provided,  that  the  net  i908^'5!!o!'§  os, 

563  earnings  of  said  corporation,  after  payment  of  all  operating  ex]3enses,  59o*9,'49i,  §  s. 

564  taxes  and  interest  as  reported  to,  and  according  to  the  requirements  of, 

565  tlie  proper  authorities  of  the  commonwealth,  have  been  in  each  of  the 

566  three  fiscal  years  preceding  the  making  or  renewing  of  such  loan  equal 

567  to  not  less  than  four  per  cent  on  all  its  capital  stock  outstanding  in  each 

568  of  said  years;  and  provided,  that  the  gross  earnings  of  said  corporation 

569  in  the  fiscal  year  preceding  the  making  or  renewing  of  such  loan  have 

570  been  not  less  than  one  hundred  thousand  dollars. 

571  (d)  A  bond  or  note  issued,  assumed,  or  guaranteed  by  endorsement  as  Notes  issued  or 

572  to  both  principal  and  interest,  by  a  railroad  corporation  which  complies  Skoad"      ^ 

573  with  all  the  requirements  of  subdi\-ision  (b)  or  of  subdivision  (e)  pre-  i908^m)0,''§  r.s, 

574  ceding  paragraph  (5)  of  clause  Third;   provided,  tliat  the  principal  of  Jgo^g.^lgi,  §8. 

575  such  bond  or  note  described  in  either  this  or  the  preceding  subdivision  is 

576  payable  at  a  time  not  exceeding  one  year  after  the  date  of  investment 

577  therein. 

578  (e)  A  note  of  a  responsible  borrower  in  such  form  as  the  commissioner  Notes  seeured 

579  may  approve,  with  a  pledge  as  collateral  of—  i^Tg^'iTu: 


1888 


SAYINGS   B.\NKS. 


[Ch.\p.  168. 


P.  P.  IIB,  §  20, 
cl.  5. 

1SS7,  196. 
1S88,  213. 
1891,317,  §21, 
cl.  6. 

1896,  178. 
1899,  269. 
R.  L.  113,  §  26, 
els.  2  (e),  3 
(k.  I,  m),4  (e). 
1904,  210. 
1903,  250. 
1906,  463, 
III,  §§  150, 
158. 

1908,  590, 

§  68,  cl.  8  (e), 
5  69. 

1909,  491,  §  8. 
1919,  350, 
§§45,46. 


1910,  358. 


"Association" 
defined. 
1908,  590, 
§  68,  cl.  8  (/), 
§69. 

Farm  loan 
bonds, 
1918,  67. 


Bank  building. 

1870,  226. 

1876,  203,  §  9, 

cl.6. 

P.  S.  116,  §  20, 

cl.  7. 

1893,  174. 

1894,  317,  §  21, 
cl.  8. 

R.L.  113,  §  26, 
cl.  8. 

1908,  590,  §  68, 
cl.  9,  §  69. 
1910,281. 
1919,  350, 
§§45,  46. 
149  Mass.  1. 
151  Mass.  103. 


Real  estate  ac- 
quired by  fore- 
closure. 
1870.  226. 


(1)  One  or  more  first  mortgages  of  real  estate  situated  in  tliis  com-  580 
monwealth:  pro\'ided,  that  the  amount  of  such  note  is  not  in  excess  of  581 
sixty  per  cent,  or  in  the  case  of  unimproved  or  uiiproducti\'e  real  estate  582 
in  excess  of  forty  per  cent,  of  the  value  of  the  property  or  properties  583 
mortgaged;  that  the  value  of  each  of  said  properties  has  been  certified  584 
in  accordance  with  the  provisions  of  clause  First;  and  that  the  assign-  585 
ment  of  each  of  said  mortgages  has  been  recorded  in  the  proper  registry  586 
of  deeds;  or  587 

(2)  Bonds  or  notes  authorized  for  investment  by  clause  Second,  588 
Third,  Fourth,  Fifth  or  Seventeenth  at  no  more  than  ninety  per  cent  of  589 
the  market  \alue  thereof,  at  any  time  while  such  note  is  held  by  such  590 
corporation;  or  591 

(3)  Deposit  books  of  depositors  in  savings  banks  at  no  more  tlian  592 
ninety  per  cent  of  the  amount  of  deposits  shown  therein;  or  593 

(4)  Shares  of  railroad  corporations  described  in  subdivision  (a),  (b)  594 
or  (e)  of  clause  Tliird  at  no  more  than  eiglity  per  cent  of  the  market  \'alue  595 
thereof,  at  any  time  while  such  note  is  held  by  such  corporation;  or  596 

(5)  Such  other  bonds,  notes  or  shares  of  corporations  or  associations  597 
and  at  such  percentages  of  their  market  values  as  the  board  of  investment  598 
shall  approve;  provided,  that,  if  the  commissioner  shall  disapprove  any  599 
such  bonds,  notes  or  shares,  he  shall  make  such  written  recommendations  600 
to  the  board  of  investment  of  such  corporation  as  the  case  may  require,  601 
and  shall  include  in  his  annual  report  a  statement  of  the  facts  in  each  602 
case  in  which  such  board  of  investment  has  not  complied  with  his  recom-  603 
mendations  in  a  manner  satisfactory  to  him;   or  604 

(6)  Policies  issued  by  life  insurance  companies  approved  by  the  com-  605 
missioner  and  properly  assigned  to  the  bank,  but  not  exceeding  ninety  606 
percent  of  the  cash  surrender  value  of  such  policies;  but  the  aggregate  607 
of  such  loans  made  by  any  savings  bank  shall  not  exceed  one  per  cent  of  608 
its  deposits.  609 

(J)  Whenever  used  in  this  clause,  the  word  "association"  means  an  610 
association  the  business  of  which  is  conducted  or  transacted  by  trustees  611 
under  a  written  instrument  or  declaration  of  trust.  612 

Tenth.  In  farm  loan  bonds  lawfully  issued  by  federal  land  banks  613 
incorporated  under  the  act  of  congress  approved  July  seventeen,  nine-  614 
teen  hundred  and  sixteen,  entitled  "  An  act  to  provide  capital  for  agri-  615 
cultural  development,  to  create  standard  forms  of  investment  based  616 
upon  farm  mortgage,  to  equalize  rates  of  interest  upon  farm  loans,  to  617 
furnish  a  market  for  United  States  bonds,  to  create  go\'ernment  deposi-  618 
taries  and  financial  agents  for  the  United  States,  and  for  other  purposes".  619 

Eleventh.  A  sum  not  exceeding  the  guaranty  fund  and  undivided  620 
earnings  of  such  corporation,  nor  in  any  case  exceeding  five  per  cent  621 
of  its  deposits  or  two  hundred  thousand  dollars,  may,  subject  to  tlie  622 
approval  of  the  commissioner,  be  invested  in  the  purchase  of  a  suitable  623 
site  and  the  erection  or  preparation  of  a  suitable  building  for  the  con-  624 
venient  transaction  of  its  business.  Extraordinary  alterations  in,  or  625 
additions  to,  a  bank  building  owned  by  a  savings  bank,  inv-olving  an  626 
expense  exceeding  ten  thousand  dollars,  shall  not  be  made  without  627 
the  approval  of  the  commissioner,  and  the  cost  of  such  alterations  or  628 
additions  shall  not  exceed  the  sum  specified  in  this  clause.  629 

1  Op.  A.  G.  420. 

Twelfth.  Such  corporation  may  hold  real  estate  acquired  by  the  630 
foreclosure  of  a  mortgage  owned  by  it,  or  by  purchase  at  sales  made  631 


Chap.  168.]  savings  banks.  1889 

6.32  under  the  provisions  of  such  mortgages  or  upon  judgments  for  debts  isre,  203,  §  26. 

6.33  due  to  it,  or  in  settlements  effected  to  seciu-e  such  debts.     Such  cor-  d'.  si  ^^^'    ^°' 

634  poration  shall  sell  all  such  real  estate  within  Qxe  years  after  the  title  }||3;5^'24s. 

635  thereof  is  vested  in  it,  and  notwithstanding  the  provisions  of  clause  [Hf  H^  j  21 

636  First  may  take  a  mortgage  thereon  from  a  bona  fide  purchaser  to  secure  f^^g  j^g 

637  the  whole  or  a  part  of  the  purchase  price;   but  the  commissioner  may,  R.  l'iis,  §  26, 

638  on  petition  of  the  board  of  investment  of  such  corporation,  and  for  lode,  204, 

639  cause,  grant  an  additional  time  for  the  sale  of  the  same  or  of  the  securi-      ^'  '  *' 

640  ties  mentioned  in  the  following  clause. 

1908,  590,  §  08,  cl.  10,  §  69.  1919,  350,  §§  45,  46.  149  Mass.  1. 

641  Thirteenth.     Such  corporation  may  hold  stocks,  bonds,  notes  or  other  Securities 

642  securities  acquired  in  settlements  eft'ected  to  secure  loans  or  indebted-  eet'uement'of 

643  ness;   but  unless  the  time  during  which  such  securities  may  be  held  is  isg^us!^^^' 

644  extended  as  provided  in  the  preceding  clause,  they  sliall  be  sold  within  fi  }'o,^^^'  ^  ~^' 

645  five  years  after  being  acquired.  i908, 590,  §  es,  ci.  11. 

646  Fourteenth.    The  provisions  of  this  chapter  shall  not  invalidate  or  Pledges  of 

647  impair  the  title  of  a  corporation  to  securities  which  have  been  or  may  conaterai  to 

648  be  held  by  it  in  pledge  or  as  security  for  a  loan  or  indebtedness;  and  "876'203!T30 

649  the  same  shall  be  held  for  the  purposes  for  which  they  were  pledged.         p*!s'u6  V20 

1894,  317,  §  21,  cl.  10.  R.  L.  113,  §  26,  cl.  11.  1908.  590,  §  68,  cl.  12,  §  69.  cL  9^ 

650  Fifteenth.     Annually,    not   later   than   February   first,  the  commis-  List  of  bonds 

651  sioner  shall  prepare  a  list  of  all  the  bonds  and  notes  which  are  then  190^2",  KfYs^' 

652  legal  investments  under  the  provisions  of  clause  Third,  Foiu-th,  Fifth  §§°i%"%' 

653  or  Seventeenth.    Said  list  shall  at  all  times  be  open  to  public  inspection  tss''^^'  ^^^'*^' 

654  and  a  copy  thereof  shall  be  sent  to  every  savings  bank. 

190S,  590,  §  68,  cl.  13,  §  69.  1919,  350,  §§  45,  46. 

655  Sixteenth.     Bonds  which  at  any  time  have  been  for  ten  successive  Bonds  not  to 

656  years  legal  investments  under  the  provisions   of   subdivision   (a),  (6),  by^^e'Ssono't''' 

657  (c),  or  {d)  of  clause  Third  or  clause  Fifth  of  this  section  shall  not  be  fSrureto^ 

658  rendered  illegal  although  the  corporation  issuing,  assuming  or  guaran-  '^'"^\  ^"^^^ 

659  teeing  such  bonds  shall  fail  for  a  period  not  exceeding  two  successive  1913,291. 

660  years  to  comply  as  to  dividends  on  its  capital  stock,  with  the  require- 

661  ments  of  the  clauses  specified  above;   but  no  further  investment  in  the 

662  bonds  issued,  assumed  or  guaranteed  by  such  corporation  shall  be  made 

663  during  said  period.     If  after  the  expiration  of  said  period,  such  corpo- 

664  ration  complies  for  the  following  fiscal  year  with  the  requirements  of 

665  the  clauses  specified  above,  it  shall  be  regarded  as  having  complied 

666  therewith  during  said  period;  provided,  that  it  shall  not  have  so  failed 

667  to  comply  during  any  other  period  ^\ithin  the  next  preceding  ten  years. 

668  Seventeenth.     This  section  shall  not  render  illegal  the  investment  in  cert.iin  invest- 

669  any  mortgages  of  real  estate  held  by  such  corporation  on  June  eighth,  viousfy""" 

670  nineteen  hundred  and  eight,  nor  the  investment  before  or  after  said  date  i9os°59o''«  68 

671  in  any  issue  of  bonds  or  notes  dated  before  said  date  in  which  such  cor-  <!i.4.' 

672  poration  might  then  invest,  so  long  as  such  bonds  or  notes  continue  to 

673  comply  with  the  laws  then  in  force. 

REFERENCE. 

Savings  departments  of  foreign  banking  associations  or  corporations,  Chap.  167, 
§§  41-45. 


1890 


DEPOSITS  WITH  OTHERS  THAN   B.VNiKS. 


[Chap.  169. 


CHAPTER    169. 

DEPOSITS  WITH  OTHERS   TH.\N   BANKS. 


Sect. 

application  op  chapter. 

1.  Application  of  chapter. 

BONDS    AND    LICENSES. 

2.  Bond  required. 

3.  Requirements  of  bond.    Issue  of  license, 

and     revocation.     Trust     fund     for 
depositors. 

4.  Record  of  bonds. 

5.  -Actions  on  bonds. 

SUPERVISION   BT   prBLIC   AUTHORITY. 

6.  Super\'ision  of  commissioner.    Returns. 

7.  Books   and   accounts.     Bond   by   cus- 

todian of  deposits. 

8.  Examination  by  commissioner. 

9.  Powers    of    commissioner    relative    to 

examination. 


Sect. 

10.  Persons  subject  to  examination. 

11.  When  commissioner  is  to  apply  for  in- 

junction or  receiver. 


DISPOSITION  OF   FUNDS   DEPOSITED. 

Investment  of  funds  held  on  deposit. 
Notes  and  collateral  not  to  be  pledged, 

etc. 
Money  to  be  forwarded. 
Form  of  receipt  regulated. 


GENERAL    PRO%'ISIONS. 

16.  Penalties. 

17.  Police  to  notify  commissioner  of  persons 

to  whom   this  chapter   applies   and 
prosecute  offenders. 

18.  Revocation  of  license,  etc. 


Applit 
of  cha 


^  ^nication 

'  chapter. 
1905,  42S,  §  1. 
1906,408,  §  1. 
1907,  377,  §  1. 
1910,3.38,  I  1. 
1913,  17S;  179. 


APPLICATION   OF  CILAPTER. 

Section  1.     This  chapter  shall  apply  to —  1 

First.  All  persons  engaged  in  the  selling  of  steamship  or  railroad  2 
tickets  for  transportation  to  or  from  foreign  countries,  or  in  the  supply-  ,3 
ing  of  laborers,  who,  in  conjunction  with  said  business,  carry  on  the  4 
business  of  receiving  deposits  of  money  for  safe  keeping,  or  for  the  pur-  5 
pose  of  transmitting  the  same,  or  equivalents  thereof,  to  foreign  coun-  G 
tries,  or  for  any  other  purpose.  7 

Second.  All  persons  who  carry  on  the  business,  or  make  a  practice,  S 
of  recei-ving  deposits  of  money  for  the  purpose  of  transmitting  the  same  9 
or  equivalents  thereof  to  foreign  countries,  e.xcept  banks  or  trust  com-  10 
panics  or  express  companies  having  contracts  with  railroad  or  steam-  11 
ship  companies  for  the  operation  of  an  express  service  upon  the  lines  12 
of  such  companies,  or  persons  engaged  in  the  banking  or  brokerage  13 
business.  1-4 

Third.  Any  person  engaged  or  financially  interested  in  the  selling  15 
of  tickets  or  supplying  of  laborers  as  aforesaid  who  is  also  engaged  or  16 
financially  interested  in  the  business  of  receiving  deposits  of  money  17 
as  aforesaid,  and  any  person  engaged  or  financially  interested  in  the  18 
business  of  receiving  deposits  of  money  as  aforesaid  who  is  also  engaged  19 
or  financially  interested  in  the  selling  of  tickets  or  supplying  of  laborers  20 
as  aforesaid,  under  whatever  name  or  by  whatever  persons  the  said  21 
business  of  selling  tickets  or  supplying  laborers  or  the  said  business  22 
of  receiving  deposits  is  carried  on.  23 


BONDS  AND   LICENSES. 


Section  2.     All  persons   subject  to  this  chapter  shall,  before  en- 


Bond  required. 

190.5, 428.  I  1.  .         .  ...  ,        .  ,  .,       ,  . 

j-J0^'|5S'  I  \-  tering  into  or  continumg  in  any  business  described  in  section  one,  make, 

liiii^sos!  |i'.  execute  and  deliver  a  bond  to  the  state  treasurer  in  such  sum  as  the 


Chap.  169.]  deposits  with  others  th.u^  b.\nks.  1891 

4  commissioner  of  banks,  in  this  chapter  called  the  commissioner,  may  1912,3.35. 

5  deem  necessary  to  cover  money  or  deposits  received  for  the  purposes  mm.  350', 

6  mentioned  in  said  section  by  such  persons,  the  bond  to  be  conditioned  i97*Mai64. 

7  upon  the  faithful  holding  and  repayment  of  the  money  deposited,  and 

8  upon  the  faithful  holding  and  transmission  of  any  money,  or  equivalent 

9  thereof,  which  shall  be  delivered  to  them  for  transmission  to  a  foreign 

10  country,  and  in  the  event  of  the  insolvency  or  bankruptcy  of  the  prin- 

1 1  cipal  upon  the  payment  of  the  full  amount  of  such  bond  to  the  assignee, 

12  receiver  or  trustee  of  the  principal,  as  the  case  may  require,  for  the 

13  benefit  of  such  persons  as  shall  deliver  money  to  said  principal  for  safe 

14  keeping  or  for  the  purpose  of  transmitting  the  same  to  a  foreign  country. 

15  Whenever  a  person  shall  be  granted  a  license  to  carry  on  only  the 

16  business  of  receiving  deposits  of  money  for  safe  keeping  or  only  that  of 

17  receiving  deposits  of  money  for  the  purpose  of  transmitting  the  same 

18  or  equivalents  thereof  to  foreign  countries,  the  condition  of  the  bond 

19  required  by  this  section  may  be  the  faithful  holding  or  repayment  of 

20  the  money  deposited  or  the  faithful  holding  and  transmission  of  the 

21  money  or  equivalents  thereof,  respectively,  instead  of  the  condition 

22  above  described.    The  sum  of  the  bond  may  at  any  time  be  increased 

23  in  such  amounts  as  shall  be  shown  by  examination  to  be  necessary. 

1  Section  3.     Said  bond  shall  be  executed  by  said  person  as  princi-  Requirements 

^^  01  bond      XssuG 

2  pal,  with  at  least  two  good  and  sufficient  sureties  who  shall  be  residents  of  license,  and 

3  and  owners  of  real  estate  within  the  commonwealth,  or  by  said  person  TrusUund  for 

4  as  principal  and  a  siu-ety  company,  approved  by  the  commissioner.  i905f428^§2. 

5  In  lieu  of  the  aforesaid  sureties,  the  person  may  deposit,  and  the  state  H^l]  lgl[  1 1; 

6  treasurer  shall  accept  as  security  for  the  fulfilment  of  the  provisions  j^}i'  ^^f  ^  ^■ 

7  of  the  bond,  money,  bonds  of  the  United  States,  of  this  commonwealth  |?i9;350, 

8  or  of  any  municipality  thereof,  or,  if  approved  by  the  commissioner, 

9  other  bonds,  certificates  of  deposit  issued  by  a  national  bank  or  trust 

10  company,  or  deposit  books  of  depositors   in  savings  banks  or  trust 

11  companies.     The  money  or  securities  so  deposited  shall  be  held  on  the 

12  conditions  specified  in  the  bond.     If  securities  be  deposited  in  lieu  of 

13  sureties  and  be  accepted,  the  state  treasurer  shall  require  the  depositor 

14  to  maintain  such  deposit  at  a  value  equal  to  the  amount  fixed  as  the 

15  penalty  of  the  bond,  and  he  may  in  his  discretion  permit  the  substitu- 

16  tion  of  securities  for  money,  or  of  money  for  securities,  in  whole  or  in 

17  part,  or  of  money  or  securities  for  any  sureties,  or  of  a  bond  for  money 

18  or  securities  deposited,  or  the  withdrawal  of  securities  deposited  and 

19  the  substitution  of  others  of  equal  value  in  their  place,  and,  if  the  total 

20  value  of  the  securities  becomes  substantially  impaired,  he  shall  require 

21  the  deposit  of  money  or  additional  secm-ities  sufficient  to  cover  the 

22  impairment  in  value.     No  bond  required  by  this  section  shall  be  ac- 

23  cepted  until  it  has  been  first  examined  and  approved  by  the  commis- 

24  sioner  and  unless  also  approved  by  the  state  treasurer, .  and  upon  such 

25  approval  by  him  it  shall  be  filed  in  his  office.    Upon  notice  of  such 

26  approval  by  the  state  treasurer,  the  commissioner  shall  issue  a  license 

27  authorizing  said  person  to  carry  on  the  aforesaid  business  for  a  period 

28  of  one  year  from  the  date  of  the  issuance  of  the  license,  at  a  place  to 

29  be  specified  therein,  and  no  person  shall  enter  into  or  continue  in  the 

30  aforesaid  business  without  such  authority.    The  license  shall  state  the 

31  kind  of  business  which  the  licensee  is  authorized  to  carry  on,  either 

32  that  of  receiving  deposits  of  money  for  safe  keeping,  or  that  of  receiving 

33  money  for  the  purpose  of  transmitting  the  same  or  equivalents  thereof 


1892 


DEPOSITS  WITH   OTHERS  TH.\N  B.VNKS. 


[CH.A.P.    169. 


to  foreign  countries,  or  that  of  receiving  deposits  of  money  for  safe  34 
keeping  and  transmission  to  foreign  countries.  If  authority  is  therein  35 
given  the  licensee  to  carry  on  the  business  of  receiving  deposits  of  money  36 
for  the  purpose  of  transmitting  the  same  or  equivalents  thereof  to  37 
foreign  countries,  he  shall  pay  for  such  license  an  annual  fee  of  twenty-  38 
five  dollars,  but,  if  authority  is  given  to  receive  deposits  of  money  for  39 
safe  keeping,  or  for  the  purpose  of  safe  keeping  and  transmission  abroad,  40 
then  an  annual  fee  of  fifty  dollars  shall  be  paid.  The  license  shall  not  41 
be  transferred  or  assigned.  It  shall  not  authorize  the  transaction  of  42 
business  at  any  place  other  than  that  described  in  the  license,  except  43 
with  the  written  approval  of  the  commissioner.  Immediately  upon  the  44 
receipt  of  the  license  issued  by  the  commissioner,  the  licensee  named  45 
therein  shall  cause  the  license  to  be  posted  and  at  all  times  conspicu-  46 
ously  displayed  in  the  place  of  business  for  which  it  is  issued,  so  that  47 
all  persons  visiting  such  place  may  readily  see  the  same.  It  shall  be  48 
unlawful  for  any  licensee  to  post  the  license  or  to  permit  the  license  to  49 
be  posted  upon  premises  other  than  those  designated  therein  or  those  50 
to  which  it  has  been  transferred  with  the  written  approval  of  the  com-  51 
missioner,  or  knowingly  to  deface  or  destroy  any  such  license.  The  52 
money  and  securities  deposited  with  the  state  treasurer  as  herein  pro-  53 
vided,  and  the  money  which  in  case  of  default  shall  be  paid  on  the  afore-  54 
said  bond  by  any  licensee  or  the  surety  thereof,  shall  constitute  a  trust  55 
fund  for  the  benefit  of  such  persons  as  shall  deliver  money  to  the  56 
licensee  for  safe  keeping  or  for  the  purpose  of  transmitting  the  same  to  57 
foreign  countries,  and  such  beneficiaries  shall  be  entitled  to  an  absolute  58 
preference  as  to  such  money  or  secm-ities  over  all  general  creditors  of  59 
the  licensee.  The  license  shall  be  revocable  at  all  times  by  the  com-  60 
missioner  for  cause  shown,  and  in  the  event  of  such  revocation  or  of  61 
a  surrender  of  the  license,  no  refund  shall  be  made  in  respect  of  any  62 
license  fee  paid.  Every  license  shall  be  surrendered  to  the  commis-  63 
sioner  within  twenty-four  hom-s  after  written  notice  to  the  holder  that  64 
the  license  has  been  revoked.  In  case  of  the  revocation  of  the  license,  65 
the  money  and  securities  and  the  bond,  if  there  be  one,  shall  continue  66 
to  be  held  by  the  state  treasurer  for  a  period  of  one  year  from  the  date  67 
of  the  revocation  of  the  license  unless  otherwise  directed  by  the  order  68 
or  judgment  of  a  court  of  competent  jurisdiction.  69 


Record  of 

bonds. 

1905,  4:28,  §  3. 


Section  4.     The  state  treasurer  shall  keep  a  record  open  to  public  in-  1 

spection,  of  such  bonds  filed  with  him,  with  the  names,  places  of  resi-  2 

dence  and  of  business  of  the  principals  and  sureties,  and  the  name  of  the  3 

officer  before  whom  the  bond  was  executed  or  acknowledged.  4 


Actions  on 
bond; 


Section  5.     Suit  to  recover  on  such  bond  may  be  brought  by  or  upon     1 
1909'  2S7'  1 2-    *'^^  relation  of  any  party  aggrieved,  in  a  court  of  competent  jurisdiction.     2 


450. 


1913,  245. 


Supervision  of 
commissioner. 
Returns. 
1907,  377,  §  2. 
1919,  3,50, 
§§  45,  49. 


SUPERVISION  BY  PUBLIC  AUTHORITY. 

Section  6.  Any  person  transacting  any  business  described  in  section 
one  shall  be  subject  to  the  supervision  of  the  commissioner,  and  shall 
annually,  within  thirty  days  after  the  last  business  day  in  October,  and  at 
such  other  times  as  he  may  specify,  make  to  him  in  such  form  as  he  may 
prescribe  a  return  signed  and  sworn  to  by  such  officers  or  persons  as  he 


Chap.  169.]  deposits  with  others  th.\n  b.us^ks.  1893 

6  may  designate,  showing  accurately  the  condition  thereof  at  the  close  of 

7  business  on  said  last  business  day  of  October  or  such  other  day  as  he 

8  may  specify. 

1  Section  7.     The  books  and  accounts  of  every  such  person  shall  be  Books  and 

2  kept  and  audited  in  such  manner  and  form,  and  the  persons  charged  with  by'^^ustodian'"' 

3  the  custody  of  the  fimds  and  investments  thereof  shall  give  a  bond  in  liorfsrr^'^  3. 

4  such  manner  and  amount  and  to  such  person  as  the  commissioner  may  58'45^49' 

5  prescribe. 

1  Section  8.     The  commissioner  shall,  at  such  times  as  he  deems  ex-  Examination 

2  pedient,  examine,  either  personally  or  by  a  competent  examiner  whom  he  sioner"™'^ 

3  shall  appoint,  every  such  person,  and  thorouglily  inspect  and  examine  his  igil;  Isg,  |  a! 

4  affairs  to  ascertain  his  financial  condition  and  whether  he  has  complied  55 'Ij.^^g.' 

5  with  all  laws  applicable  thereto. 


1  Section  9.    For  the  purposes  aforesaid  the  commissioner  or  the  person  Powers  of 

2  making  the  examination  shall  have  free  access  to  the  vaults,  books  and  reS'tivfto'"^'^ 

3  papers  of  every  such  person,  and  may  summon  the  directors,  officers  or  fgS^'sTy™^. 

4  agents  thereof,  and  such  other  -nitnesses  as  may  be  deemed  necessary,  Jsi^j^fa' 

5  for  examination  relative  to  the  affairs,  transactions  and  condition  of  such 

6  person,  and  for  that  purpose  the  commissioner  or  the  person  making  the 

7  examination  may  administer  oaths.     Whoever,  without  justifiable  cause, 

8  refuses  to  appear  and  testify  when  so  reciuired,  or  obstructs  the  com- 

9  missioner  or  the  person  making  the  examination  in  the  performance  of 

10  his  duty,  shall  be  punished  by  a  fine  of  not  more  than  one  thousand 

11  dollars  or  by  imprisonment  for  not  more  than  one  year. 

1  Section  10.     The  commissioner  shall  have  the  powers  conferred  by  Persons  sub- 

2  the  three  preceding  sections,  for  the  purpose  of  determining  whether  a  ixam'ination. 

3  person  is  engaged  in  a  business  subject  to  section  one.  ^^°^-  ^^'^^  ^  ^• 

1919,350,  §§45,49. 

1  Section  11.     If,  upon  examiination,  it  appears  that  such  person  is  Whencom- 

2  insolvent,  or  that  his  capital  is  impaired,  or  that  his  condition  is  such  as  tolpXte 

3  to  render  the  continuance  of  his  business  hazardous  to  the  public  or  to  o'J.'recdver. 

4  those  having  funds  in  his  custody,  the  commissioner  shall  apply,  or,  if  J^°^'  |I^'  5  6. 

5  such  person  appears  to  have  exceeded  his  powers  or  failed  to  comply  with  §§  -Js.  49. 

6  any  provision  of  law,  he  may  apply,  to  the  supreme  judicial  court,  which 

7  shall  have  jurisdiction  in  equity  on  such  application  to  issue  an  injunction 

8  restraining  such  person,  in  whole  or  in  part,  from  further  proceeding  with 

9  his  business,  and  to  make  such  further  order  or  decree  as  justice  and 

10  equity  may  require.    The  court  may  appoint  one  or  more  receivers  to 

11  take  possession  of  the  property  and  effects  of  such  person,  subject  to 

12  such  directions  as  may  from  time  to  time  be  prescribed  by  the  court. 

disposition  of  funds  deposited. 

1  Section  12.     Of  the  money  held  for  safe  keeping  by  persons,  subject  investment 

n  1  •        1  1  1  1      11      •   1         I       1     I  1  1     of  funds  held 

2  to  this  chapter,  not  less  than  twenty  per  cent  shall  either  be  held  as  cash  on  deposit. 

3  on  hand,  which  may  include  foreign  money,  the  value  of  wliich  shall  be  1919!  350', 

4  computed  at  the  current  rate  of  exchange,  or  shall  be  deposited  in  savings  ^^  *"'  '*"■ 

5  banks,  trust  companies  or  national  banks.     The  remaining  eighty  per  cent 

6  of  the  money  so  held  for  safe  keeping  shall  be  invested  only  as  follows: 


1894  DEPOSITS   WITH   OTHERS  TH.tN   B.tNKS.  [C1LA.P.    169. 

First.  As  required  by  section  fifty-four  of  chapter  one  hundred  and  7 
sixty-eight  so  far  as  the  same  may  be  applicable  and  except  in  so  far  as  8 
may  otherwise  be  provided  herein.  9 

Second.  In  real  estate;  but  the  amount  invested  in  any  one  property  10 
plus  the  total  amount  of  the  mortgages  thereon  shall  .not  exceed  the  11 
assessed  valuation  thereof,  except  that  a  valuation  made  at  the  expense  of  12 
the  depositary  by  a  board  or  committee  of  investment  of  a  savings  bank  13 
or  of  a  trust  company,  or  by  the  security  committee  of  a  co-operative  14 
bank,  may  be  taken  as  the  value  of  the  property  for  the  purposes  of  15 
investment  as  set  forth  in  this  section.  16 

Third.  In  notes  secm-ed  by  mortgages  of  real  estate;  but  the  amount  17 
so  invested  in  any  one  note  shall  not  exceed  eighty  per  cent  of  the  valu-  18 
ation  of  the  real  estate  described  in  the  mortgage  deed  seciu-ing  the  note,  19 
such  valuation  to  be  determined  in  the  manner  prescribed  in  the  second  20 
subdivision  of  this  section;  nor  shall  such  investment  be  made  if  the  total  21 
of  any  prior  mortgage  on  the  real  estate  so  described,  plus  the  amount  22 
to  be  so  invested,  exceeds  eighty  per  cent  of  the  valuation,  as  aforesaid,  23 
of  that  real  estate.  24 

Fourth.  In  notes  which  are  the  joint  and  several  obligations  of  two  25 
or  more  responsible  persons,  provided  that  the  total  amount  so  invested  26 
shall  not  exceed  twenty  per  cent  of  the  total  amount  held  for  safe  keeping.  27 

Fifth.  In  notes  of  responsible  borrowers  with  a  pledge  as  collateral  28 
of  (a)  one  or  more  chattel  mortgages,  {b)  jewelry,  (c)  deposit  books  of  29 
depositors  in  savings  banks  or  in  the  savings  departments  of  trust  com-  30 
panics  or  national  banks,  (J)  accounts  receivable  against  actual  values  31 
properly  secm-ed.  32 

Sixth.  In  notes  secured  by  mortgages  of  real  estate  where  tlie  amount  33 
named  in  the  note  is  to  be  advanced  in  instalments  for  the  construction  34 
of  buildings;  but  the  total  amount  so  invested  on  the  security  of  any  one  35 
note  shall  never  exceed  eighty  per  cent  of  the  assessed  valuation  of  the  36 
land  plus  the  total  amount  of  money  actually  paid  out  for  materials  fur-  37 
nished  and  for  work  performed  in  the  construction  of  the  buildings  on  38 
said  land:  and  the  tax  bill  showing  the  last  assessment,  and  proper  evi-  39 
dence  to  the  satisfaction  of  the  commissioner  that  the  money  advanced  40 
is  for  actual  work  performed  or  materials  supplied,  shall  be  kept  on  file  41 
in  the  ofiice  of  the  depositary  where  they  may  be  inspected  at  any  time  42 
by  the  commissioner  or  his  assistant.  43 

Seventh.  In  notes  of  persons  who  are  depositors  with  the  depositary;  44 
but  the  total  amount  so  loaned  to  any  one  person  shall  never  exceed  45 
twice  the  amount  due  from  the  depositary  to  the  borro\\er.  46 

Eighth.  In  notes  which  are  the  joint  and  several  obligations  of  two  47 
or  more  persons,  each  of  whom  is  a  depositor  with  the  depositary;  but  48 
the  amount  so  loaned  on  any  one  note  shall  not  exceed  twice  the  amount  49 
of  the  total  due  by  the  depositary  to  the  borrowers,  and  in  computing  this  50 
total  there  shall  be  deducted  from  it  the  balance  of  any  outstanding  51 
financial  obligations  of  such  persons  to  the  depositary.  52 

Ninth.  In  the  bonds  or  other  obligations  of  foreign  governments;  53 
but  such  investments  must  first  receive  the  approval  of  the  commissioner.  54 

SuateraUiot  SECTION  13.    The  uotcs  evidencing  indebtedness  to  the  depositary,  1 

to^be  pledged,  mortgage  deeds  given  as  secm-ity  for  the  notes,  and  other  collateral  secur-  2 

1919'  350  ^  ^'  ^"S  ^^^  same,  shall  not,  except  with  the  approval  of  the  commissioner,  3 

§§  45, 49.'  be  pledged  as  security  either  for  money  borrowed  by  the  depositary  or  4 


Chap.  170.] 


CO-OPEKATIVE   B.USTKS. 


1895 


5  for  any  other  obligation  incurred  by  him,  and  they  shall  be  at  all  times 

6  accessible  to  the  commissioner  and  his  assistants. 

1  Section  14.     All  money  received  for  transmission  to  a  foreign  country  Money  to  be 

2  bj'  any  person  subject  to  this  chapter  shall  be  forwarded  to  the  persons  igTefns.i  3. 

3  to  whom  the  same  is  directed  to  be  transmitted  within  seven  days  after 

4  the  receipt  thereof. 

1  Section  15.     The  receipts  given  by  any  person  subject  to  this  chap-  Form  of 

2  ter  for  deposits  of  money  received  for  transmission  to  a  foreign  country  feguiated. 

3  shall  be  on  forms  approved  by  the  commissioner,  and  the  use  of  any  form  \l\g]  350;  ^  " 

4  for  this  purpose  which  has  not  so  been  approved  shall  be  sufficient  cause  ^^  ■*^'  *^- 

5  for  revocation  of  the  license  granted  under  this  chapter. 


GENERAL  PROVISIONS. 


Section  16.     Any  person  entering  into  or  continuing  in  business  con-  Penalties. 
trary  to  any  provision  of  this  chapter,  shall  be  punished  by  a  fine  of  not  ^^  ^'  *^*'    *' 
less  than  fifty  nor  more  than  one  thousand  dollars,  or  by  imprisonment 
for  not  less  than  one  month  nor  more  than  one  year,  or  both. 


1  Section  17.     Police  departments  of  towns  shall  notify  the  commis-  PoUceto 

2  sioner  of  any  persons  in  their  respective  towns  to  whom  this  chapter  missiorerof 


3  applies,  and  the  police  of  the  town  where  any  violation  of  this  chapter  w^om  this 

4  occurs  shall  prosecute  the  offender. 

1906,  408,  §  4.  1910,  338,  §  2.  1919,  350,  §§  45,  49. 


persons  to 


ciiapter  applies 
and  prosecute 
offenders. 


1  Section  18.    Any  violation  of  sections  twelve  to  fifteen,  inclusive.  Revocation  of 

2  shall  be  sufficient  cause  for  the  revocation  of  the  license  granted  under  1916, 175,  §  s. 

3  this  chapter  and  shall  be  a  violation  of  the  condition  of  the  bond  re- 

4  quired  by  section  two. 


CHAPTER     170. 


CO-OPERATIVE   BANKS. 


Sect. 


INCORPORATION. 


1.  Definitions. 

2.  Agreement  of  association. 

3.  Notice  and  hearing. 

4.  First  meeting. 

5.  Articles  and  certificate  of  incorporation. 

MANAGEMENT. 

6.  By-laws. 

7.  Officers,  election,  etc. 

8.  Security  committee. 

9.  Duties  of  treasurer. 

10.  Assistant  treasurer. 

11.  Meetings,  place  of  business. 

CAPITAL. 

12.  Issue  of  shares. 

13.  Payment  of  dues. 

14.  Shares  issued  to  minors  or  trustees. 


Sect. 

15.  Joint  accounts. 

16.  Withdrawal  of  shares. 

17.  Forfeiture  of  shares. 

18.  Retirement  of  shares. 

19.  Maturity  of  shares. 

20.  Payment  of  deferred  withdrawals  and 

matured  shares. 

LO.^NS   AND    INVESTMENTS. 

21.  Methods  of  loaning  funds. 

22.  Limitation  of  loans. 

23.  Loans  and  investments  of  unsold  funds. 

24.  Interest  payments. 

25.  Applications  for  loans  on  real  estate. 

26.  Loans  on  real  estate. 

27.  Loans  on  shares. 

28.  Agreement  for  reduction  of  interest  or 

premium. 

29.  Repayment  of  loans. 


1896 


CO-OPERATIVE   B.U^KS. 


[ClL\P.    170. 


Sect. 

30.  Real  estate  acquired.     Common  form 

mortgages. 

31.  May  hold  real  estate  used  as  place  of 

business. 

32.  Recovery  of  loan. 

33.  Borrowers    engaged    in    war    service; 

payments  may  be  suspended. 

34.  Resumption  of  such  payments. 

35.  Junior  encumbrancers  not  affected. 

36.  Assignment  of  loans  to  insurance  com- 

panies. 

GENER.\L   PROVISIONS. 

37.  Fines. 

38.  Bank  or  officers   not  to  take   certain 

fees,  etc.    Penalty. 


Sect. 

39.  Transfer  of  shares.    Fee. 

40.  Distribution  of  earnings. 

41.  Guaranty  fund. 

42.  Surplus  account. 

43.  General  accounts. 

44.  Annual  reports. 

45.  Consolidation  of  banks. 

46.  Powers  and   duties   of   bank   commis- 

sioner. 

47.  Fees  for  examination  and  audit. 

48.  Co-operative  banking  to  be  done  only 

under     this     chapter.       Exception. 
Penalty. 

49.  Foreign  corporations  and  associations 

regulated. 


Definitions. 


INCORPORATION. 

Section  1.    The  following  words  as  used  in  this  chapter,  unless  the  1 

context  otherwise  requires,  shall  have  the  following  meanings :  2 

"Commissioner",  the  commissioner  of  banks.  3 

"Corporation",   a   co-operative  bank  incorporated  as  such  in  this  4 

commonwealth.  5 


Agreement  of 
association. 
1854,  454. 
G.  S.  68. 
1877,  224, 
§§  1-4. 
P.  S.  117, 
§§  1-4. 
1883.  98,  §  1. 
1890,  243. 
R.  L.  110,  §  10; 
114.  §§  2,  3. 
1912,  623, 
§§  1,  45. 
3  Op.  A.  G. 
250. 


Section  2.  Twenty  or  more  persons  vho  associate  themselves  by  a 
written  agreement  to  form  a  co-operative  bank  for  the  purpose  of  ac- 
cumulating the  savings  of  its  members  in  fixed  periodical  instalments 
and  loaning  such  accumulations  to  them  may,  upon  compliance  with 
sections  two,  three,  four  and  five,  become  a  corporation  with  all  the 
powers  and  privileges  and  subject  to  all  the  duties,  restrictions  and  lia- 
bilities set  forth  in  all  general  laws  relating  to  such  corporations.  Said 
agreement  shall  set  forth  that  the  subscribers  thereto  associate  themselves 
with  the  intention  of  forming  a  corporation  to  transact  business  within 
the  commonwealth,  and  shall  specify 


1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

First.    The  name  by  which  the  corporation  shall  be  known,  the  words  11 

"co-operative  bank"  to  form  a  part  thereof.  12 

Second.    The  purpose  for  which  it  is  to  be  formed.  13 

Third.    The  town  where  its  business  is  to  be  transacted.  14 

Each  associate  shall  subscribe  to  the  articles  his  name,  residence  and    1.5 

post  office  address.  16 


Notice  and 
hearing. 
1912,  623,  § 


Section  3.     The  subscribers  to  said  agreement  shall  give  notice  to  1 

the  board  of  bank  incorporation  of  their  intention  to  form  a  co-operative  2 

bank  and  shall  apply  to  said  board  for  a  certificate  that  public  convenience  3 

and  advantage  will  be  promoted  by  the  establishment  thereof.     Said  4 

board  may  grant  such  certificate,  ■«iiich  shall  be  deemed  revoked  if  the  5 

applicants  therefor  do  not  become  incorporated  and  begin  business  within  6 

six  months  after  its  date  of  issue.    Upon  receipt  of  such  application,  said  7 

board  shall  furnish  the  subscribers  a  form  of  notice,  specifying  the  names  S 

of  the  proposed  incorporators  and  the  name  and  location  of  the  proposed  9 

co-operative  bank  and  assigning  a  date  and  place  for  a  public  hearing  on  10 
the  application.    The  subscribers  shall  publish  the  notice  at  least  once  all 

week  for  tliree  successive  weeks,  in  one  or  more  newspapers  designated  12 

by  said  board,  and  published  in  the  to\\n  ^\liere  it  is  desired  to  establish  13 

the  bank,  or,  if  there  is  no  newspaper  in  such  town,  in  the  town  where  a  14 


Chap.  170.]  co-operative  banks.  1897 

15  newspaper  is  published,  which  is  nearest  to  the  location  of  the  bank.    If 

16  said  board  refuses  to  issue  such  certificate,  no  fiu-ther  proceedings  shall 

17  be  had,  but  the  application  may  be  renewed  after  one  year  from  the 

18  date  of  the  refusal,  in  which  case  notice  of  a  public  hearing  thereon  shall 

19  be  published  as  herein  provided. 

1  Section  4.     The  first  meeting  of  the  subscribers  to  the  agreement  of  ^^-fj  ^ll''"'^- 

2  association  shall  be  called  by  a  notice  signed  either  by  that  subscriber  to  |,5  2, 4.^^ 

3  the  agreement  who  is  designated  therein  for  the  purpose,  or  by  a  majority  §§  2, 4. 

4  of  the  subscribers;  and  the  notice  shall  state  the  time,  place  and  purpose  1912!  623^ 

5  of  the  meeting.    A  copy  of  the  notice  shall,  seven  days  at  least  before  the  ibi  Mass.  3S5. 

6  day  appointed  for  the  meeting,  be  given  to  each  subscriber,  or  left  at  his 

7  residence  or  usual  place  of  business,  or  deposited  in  the  post  office,  postage 

8  prepaid,  and  addressed  to  him  at  his  residence  or  usual  place  of  business, 

9  and  another  copy  thereof  and  an  affidavit  by  one  of  the  signers  that  the 

10  notice  has  been  duly  served  shall  be  recorded  with  the  records  of  the 

11  corporation.    If  all  the  incorporators  shall  in  writing,  endorsed  upon  the 

12  agreement  of  association,  waive  such  notice  and  fix  the  time  and  place 

13  of  the  meeting,  no  notice  shall  be  required.    The  subscribers  to  the  agree- 

14  ment  of  association  shall  hold  the  franchise  until  the  organization  has 

15  been  completed.    At  the  first  meeting,  or  at  any  adjoiu-nment  thereof,  the 

16  incorporators  shall  organize  by  the  choice  by  ballot  of  a  temporary  clerk, 

17  by  the  adoption  of  by-laws  and  by  the  election,  in  such  manner  as  the 

18  by-laws  may  determine,  of  a  president,  a  clerk  of  the  corporation,  a  treas- 

19  m-er,  a  board  of  not  less  than  five  directors,  and  such  other  officers  as  the 

20  by-laws  may  prescribe.    All  the  officers  so  elected  shall  be  sworn  to  the 

21  faithful  performance  of  their  duties.    The  temporary  clerk  shall  make 

22  and  attest  a  record  of  the  proceedings  until  the  clerk  has  been  chosen  and 

23  sworn,  including  a  record  of  the  choice  and  qualification  of  the  clerk. 

1  Section  5.     The  president  and  a  majority  of  the  directors  who  are  Articles  and 

2  elected  at  the  first  meeting  shall  make,  sign  and  make  oath  to,  articles  incorpMaUon. 

3  in  duplicate  setting  forth  —  §§'2^,'4.^*' 

4  (a)  A  true  copy  of  the  agreement  of  association,  the  names  of  the  sub-  ^^  f  l^^' 

5  scribers  thereto,  and  the  name,  residence  and  post  office  address  of  each  f^^- 1]|'  5  s. 

6  of  the  officers  of  the  corporation.  §§  4,'45. ' 

7  (b)  The  date  of  the  first  meeting  and  the  successive  adjournments  149  Mass!  430.' 

8.1  p    •!»  151  Mass.  558. 

thereof,  it  any. 

9      One  duplicate  original  of  the  articles  so  signed  and  sworn  to  shall  be 

10  submitted  to  said  board,  and  the  other,  together  with  the  records  of  the 

11  proposed  corporation,  to  the  commissioner  of  corporations  and  taxation, 

12  who  shall  examine  the  same  and  may  require  such  amendment  thereof 

13  or  such  additional  information  as  he  considers  necessary.     If  he  finds 

14  that  the  articles  conform  to  the  three  preceding  sections,  and  that  section 

15  three  has  been  complied  with,  he  shall  so  certify  and  endorse  his  approval 

16  thereon.    Thereupon  the  articles  shall  be  filed  in  the  office  of  the  state 

17  secretary,  who  upon  receipt  of  fi^e  dollars,  shall  cause  the  same,  with  the 

18  endorsement  thereon,  to  be  recorded,  and  shall  thereupon  issue  a  certifi- 

19  cate  of  incorporation  in  the  following  form: 

Commonwealth  of  Massachusetts. 

Be  it  known  that  whereas  (the  names  of  the  subscribers  to  the  agreement  of 
association)  have  associated  themselves  with  the  intention  of  forming  a  corpora- 
tion under  the  name  of  (the  name  of  the  corporation),  for  the  purpose  (the  pur- 


1898  CO-OPERATIVE   BANKS.  [ChAP.    170. 

pose  declared  in  the  agreemeBt  of  association),  and  have  complied  with  the  pro- 
visions of  the  statutes  of  this  commonwealth  in  such  case  made  and  provided, 
as  appears  from  the  articles  of  organization  of  said  corporation,  duly  approved 
by  the  commissioner  of  corporations  and  taxation  and  recorded  in  this  office: 
Now,  therefore,  I  (the  name  of  the  state  secretary),  secretary  of  the  common- 
wealth of  Massachusetts,  do  hereby  certify  that  said  (the  names  of  the  subscribers 
to  the  agreement  of  association),  their  associates  and  successors,  are  legally  or- 
ganized and  established  as,  and  are  hereby  made,  an  existing  corporation  under 
the  name  of  (name  of  the  corporation),  with  the  powers,  rights  and  privileges, 
and  subject  to  the  limitations,  duties  and  restrictions,  which  by  law  appertain 
thereto. 

Witness  my  official  signature  hereunto  subscribed,  and  the  great  seal  of  the 
commonwealth  of  Massachusetts  hereunto  affixed,  this 

day  of  in  the  year  (the  date  of  the  filing  of  the  articles  of 

organization). 

The  state  secretary  shall  sign  the  certificate  of  incorporation  and  20 
cause  the  great  seal  of  the  commonwealth  to  be  thereto  affixed,  and  21 
such  certificate  shall  have  the  force  and  effect  of  a  special  charter.  The  22 
existence  of  every  such  corporation  which  is  not  created  by  special  law-  23 
shall  begin  upon  the  filing  of  the  articles  of  organization  in  the  office  of  24 
the  state  secretary,  who  shall  also  cause  a  record  of  the  certificate  of  25 
incorporation  to  be  made,  and  such  certificate  or  such  record,  or  a  certi-  2G 
fied  copy  thereof,  shall  be  conclusive  evidence  of  the  existence  of  the  27 
corporation.  28 

MANAGEMENT. 

i877"224  Section  6.     The  shareholders  of  every  such  corporation  shall  make     1 

p^I'^^t's r     ^^^^  adopt  the  necessary  by-laws  consistent  with  law  for  the  government    2 
1901, 123.     '     of  its  affairs,  and  a  copy  thereof  shall  be  filed  in  the  office  of  the  com-    3 

R.  L.  114,  §6.  •      •  fU        1  ( 

1912, 623,         missioner  oi  banks.  4 

1919, *350,  §  45.      The  by-laws  shall  provide  for  and  determine  —  5 

(a)  The  time  for  holding  the  annual  meeting  of  the  shareholders  and  6 
the  montlily  meetings  of  the  board  of  directors,  and  for  the  receipt  of  7 
moneys.  8 

(b)  The  manner  of  calling  either  regular  or  special  meetings.  9 

(c)  The  number  necessary  to  constitute  a  quorum  at  all  meetings.  10 
{d)  The  qualifications  of  electors.  1 1 
(e)  The  number,  title  and  duties  of  officers  and  standing  committees,  12 

their  terms  of  office  and  the  manner  of  their  election  or  appointment.  13 
(/)  The  care  and  custody  of  money,  securities  and  property  of  the  14 

bank.  15 

(g)  The  method  of  loaning  the  funds  of  the  bank.  16 

{h)  The  proportion  of  profits,  if  any,  to  be  reserved  upon  voluntary  17 

withdrawals.  18 

(i)  The  time  within  which  satisfactory  security  for  real  estate  loans  19 

shall  be  offered.  20 

(j)  Whether  partial  pajinents  of  less  than  fifty  dollars  may  be  received  21 

upon  loans.  22 

(k)  The  rate  of  fines  to  be  charged  upon  delinquent  payments.  23 

(l)  The  manner  of  transferring  shares  and  the  fee  therefor.  24 

(m)  The  manner  and  conditions  under  wliich  the  by-laws  may  be  25 

amended.  26 

eiSon  etc  SECTION  7.    The  busiuess  and  affairs  of  every  such  corporation  shall     1 

1877, 224,         i)Q  managed  by  a  board  of  not  less  than  five  dkectors  to  be  elected  by  the    2 
p.  s.  117,  §  0.     shareholders.    Directors  may  be  elected  for  terms  of  not  less  than  one    3 


Chap.  170.]  co-oper-vtwe  banks.  1899 

4  nor  more  than  three  years,  and,  in  case  the  term  is  more  than  one  year,  isss,  121, 1 1. 

5  they  shall  be  divided  into  classes  and  an  equal  number,  as  nearly  as  may  u^t  iit  §  6. 

6  be,  elected  each  year.    All  vacancies  in  the  board  or  in  any  office  may  be  §§'|;45.^' 

7  filled  by  the  board  of  directors  for  the  unexpired  term.    Every  officer  and  i^^*-  ^^'  5 1- 

8  director  when  appointed  or  elected  shall  take  an  oath  that  he  will  faith- 

9  fully  and  impartially  discharge  the  duties  devolving  upon  him,  and  the 

10  fact  that  the  oath  has  been  taken  shall  be  entered  in  the  records  of  the 

11  corporation.    The  president,  vice  president  and  treasurer  may  be  chosen 

12  either  by  the  shareholders  or  by  the  board  of  directors  as  the  by-laws 

13  may  determine.    No  shareholder  shall  be  entitled  to  more  than  one  vote 

14  at  any  meeting,  and  no  shareholder  shall  vote  by  proxy.    All  officers  shall 

15  be  elected  by  ballot,  shall  be  shareholders  when  nominated  and  shall  con- 
IG  tinue  to  hold  their  offices  until  their  successors  have  been  chosen  and 

17  shall  have  assumed  their  duties,  and  no  such  corporation  shall  expire 

18  from  neglect  to  elect  officers  at  the  time  prescribed  in  its  by-laws.    If 

19  an  officer  ceases  to  be  a  shareholder  his  office  shall  thereupon  become 

20  vacant. 

1  Section  8.     At  the  first  meeting  of  the  board  of  directors  after  the  Security 

2  annual  meeting  for  the  election  of  officers,  the  board  shall  elect  from  its  igiaTo"?!  7. 

3  own  number  a  security  committee  of  at  least  three  members,  whose  duty 

4  shall  be  to  examine  real  estate  offered  as  security  for  loans  and  to  report 

5  thereon  as  required  by  section  twenty-five. 

6  The  personal  examination  of  any  parcel  of  real  estate  by  the  security 

7  committee  may  be  omitted  by  special  vote  of  the  board  of  directors. 

8  No  member  of  the  security  committee  shall  make  an  official  report 

9  upon  property  offered  as  security  for  a  loan  in  which  he  has  a  personal 
10  interest. 

1      Section  9.    The  treasurer  shall  keep  the  accounts  and  have  charge  Duties  ot 
■  2  of  all  books  and  papers  necessary  therefor,  and  dispose  of  and  secure  the  is77,"224,  §  u. 

3  safe  keeping  of  all  money,  seciu-ities  and  property  of  the  corporation,  in  f89^^,247,|  r' 

4  the  manner  designated  by  the  by-laws,  and  the  treasurer  and  all  other  fg^^'  lit'  ^ "' 

5  permanent  employees  having  access  at  all  times  to  the  cash  or  negotiable  §§  *■  '^^■ 

6  secm-ities,  shall  each  give,  subject  to  section  twenty-four  of  chapter  one 

7  hundred  and  sixty-eight,  a  bond  for  the  faithful  performance  of  their 

8  respective  duties  in  such  amount  as  the  board  of  directors  may  require. 

1  Section  10.     Subject  to  the  approval  of  the  commissioner,  such  cor-  Assistant 

2  poration  may  provide  in  its  by-laws  for  an  assistant  treasurer,  and  for  his  i9Tfi,"2"' 

3  election  by  either  the  shareholders  or  the  board  of  directors.    He  may  ^'^^^'  ^°'^'  ^  '^^' 

4  perform  all  of  the  duties  of  the  treasurer  as  provided  in  the  preceding 

5  section. 

1  Section  11.     The  board  of  directors  shall  hold  stated  monthly  meet-  Meetings,  place 

2  ings  at  any  place  in  the  town  where  the  bank  is  located,  and  its  usual  is??,  224," ' 

3  business  shall  be  transacted  at  its  office  only,  which  shall  be  in  the  town  issi'.  2'7i', 

4  named  in  its  agreement  of  association;   but  moneys  due  the  bank  may  p/s.^iiy,  §  7. 

5  be  collected  by  the  treasm-er,  or  other  person  duly  empowered  by  the  R''L'n4; 

6  directors,  upon  such  days  and  in  such  other  places  as  may  be  designated  ||q^;  |^g^ 

7  by  vote  of  the  directors  and  approved  by  the  commissioner,  and  the  bank  ^1,1'  I',?' 

8  may  advertise  its  branch  in  such  manner   as   the  commissioner  may  §§9,'4o. ' 

9  prescribe.  191s,  ss.  1919, 3r,o,  §  45. 


1900 


CO-OPERATIVE   B.USTKS. 


[Chap.  170. 


Issue  of  shares. 
1877,  224,  §  5. 
P.  S.  117,  §  5. 
1887,  216,  §  1. 
R.  L.  114,  §4. 
1903,  147,  §  1. 
1912,  623, 
§§  10,  45. 

1914.  643,  §  2. 

1915,  77. 
1918,  83,  §  1. 
1920,  429. 

2  Op.  A.  G.  484. 


CAPITAL. 

Section  12.  The  capital  to  be  accumulated  shall  be  unlimited  and  1 
shall  be  divided  into  shares  of  the  ultimate  value  of  two  hundred  dollars  2 
each.  The  shares  may  be  issued  in  quarterly,  half  yearly  or  yearly  series,  3 
in  such  amounts  and  at  such  times  as  the  board  of  directors  may  deter-  4 
mine.  Shares  of  a  prior  series  may  be  issued  after  a  new  series,  subject  5 
to  the  approval  of  the  board  of  directors.  Paid-up  shares  may  be  is-  6 
sued,  subject  to  such  approval,  each  share  to  have  a  value  of  two  hun-  7 
dred  dollars,  which  shall  be  paid  by  the  purchaser  when  the  shares  are  8 
issued,  together  with  interest  from  the  last  distribution  of  profits  at  a  9 
rate  fixed  by  the  directors,  but  not  in  excess  of  the  rate  distributed  to  10 
unmatured  shares.  Paid-up  shares  shall  participate  in  each  distribu-  11 
tion  of  profits  in  the  same  manner  and  to  the  same  extent  as  matured  12 
shares,  as  provided  in  section  forty,  but  at  a  rate  not  to  exceed  five  per  1.3 
cent.  No  person  shall  hold  more  than  forty  unmatured  shares  or  more  14 
than  ten  matured  and  ten  paid-up  shares  in  any  one  bank  at  the  same  15 
time.  Paid-up  shares  may  be  withdrawn  or  retired  in  the  manner  16 
provided  in  sections  sixteen  and  eighteen  for  matured  shares.  17 


Payment 
of  dues. 
1877,  224, 
§§  5,  7,  9. 
1881,  271, 
§  1,  cl.  3. 
P.S.I  17,  §7. 
R.  L.  114,  §  8. 
1912,  623, 
§§  11,45. 
1914,  643,  §  3. 


Section  13.  On  or  before  the  regular  montlily  meeting  for  the  re- 
ceipt of  moneys,  as  fixed  by  the  by-laws,  every  shareholder  shall  pay  to 
the  corporation,  as  a  contribution  to  its  capital,  one  dollar  as  dues  upon 
each  unmatured  share  held  by  him  until  it  is  withdrawn,  forfeited,  re- 
tired or  matured.  Payment  of  dues  on  each  series  shall  begin  with  its 
issue. 


Shares  issued 
to  minors  or 
trustees. 
1SS7,  216,  §  3. 
R.  L.  114,  I  5. 
1912,  623, 
§§  12,  45. 


Section  14.  Shares  may  be  issued  in  the  name  of  a  minor,  and  may,  1 
in  the  discretion  of  the  directors,  be  withdrawn,  as  provided  in  section  2 
sixteen,  by  the  minor  or  by  his  parent  or  guardian,  and  in  either  case  pay-  3 
ments  made  on  such  withdrawals  shall  be  valid.  A  minor  under  the  age  4' 
of  eighteen  shall  not  have  the  right  to  vote.  If  shares  are  held  in  trust,  5 
the  name  and  residence  of  the  beneficiary  shall  be  disclosed  and  the  ac-  6 
count  shall  be  kept  in  the  name  of  the  holder  as  trustee  for  such  person.  7 
If  no  other  notice  of  the  existence  and  terms  of  the  trust  has  been  given  in  S 
writing  to  the  corporation,  such  shares  may,  upon  the  death  of  the  trustee,  9 
be  withdrawn  by  the  person  for  whom  such  deposit  was  made  or  by  his  10 
legal  representatives.  11 


Joint  accounts. 
1912,  623,  §  13. 


Section  15.    Shares  may  be  issued  to,  or  in  the  name  of,  two  persons  1 

or  the  survivor;  and  in  the  event  of  the  death  of  either,  the  corporation  2 

shall  be  liable  thereon  only  to  the  survivor,  and  while  both  are  living  3 

payment  to  either  shall  discharge  the  liability  to  both.    The  joint  owner-  4 

ship  of  shares  shall  not  confer  the  right  to  vote  to  a  greater  extent  than  5 

if  they  were  held  by  an  individual.  6 


Withdrawal 
of  shares. 
1877,  224,  §  10. 
1881,271, 
§  1,  cl.  3. 
P.  S.  117,  §  8. 
1882,  251,  5  1. 
1887.  216,  §  2. 
R.  L.  114,  I  9. 
1903,  95,  I  1. 
1912,  623, 
S§  14,  45. 


Section  16.  Upon  gi\ing  thirty  days'  WTitten  notice  to  the  treasurer 
of  his  intention  so  to  do,  a  shareholder  may  withdraw  unpledged  shares, 
but  the  board  of  directors  of  such  corporation  may  at  any  time  require 
a  member  holding  unpledged  matured  shares  to  give  ninety  daj's'  WTitten 
notice  of  his  intention  so  to  do.  He  shall  be  paid  the  balance  remaining 
after  deducting  from  the  amount  then  standing  to  the  credit  of  the  shares 
all  fines,  any  other  charges  legally  inciu-red,  and  such  part  of  the  profits 


Chap.  170.]  co-operative  banks.  1901 

8  credited  thereto,  as  the  by-laws  may  prescribe;    but  at  no  time  shall  Jgjg'lto  It's 

9  more  than  one  half  of  the  funds  in  the  treasiu"y  be  applicable  to  the  de-  J?n''i/'°-  jg, 

10  mands  of  withdrawins;  shareholders  without  the  consent  of  the  directors.  Op.  a.  g.' 

11  All  withdrawals  shall  be  paid  in  the  order  in  which  notices  thereof  are 

12  given,  and  the  treasurer  may  waive  such  notices,  in  his  discretion,  under 

13  such  restrictions  as  may  be  imposed  by  the  board  of  directors.    On  any 

14  occasion  when  there  is  an  unusual  demand  by  shareholders  for  real 

15  estate  loans  or  for  withdrawal  from  the  funds  of  any  such  corporation,  it 

16  may,  by  a  vote  of  at  least  three  fifths  of  its  directors  and  with  the  con- 

17  sent  of  the  commissioner,  borrow  from  any  national  bank,  savings  bank, 
IS  co-operative  bank  or  trust  company  for  a  period  of  not  more  than  six 

19  months.     As  security  for  such  loans,  it  may  pledge  any  portion  of  its 

20  securities  or  resources. 

1  Section  17.     The  shares  of  a  non-borrower  who  continues  in  arrears  Forfeiture 

2  more  than  six  months  shall,  at  the  option  of  the  directors,  if  he  fails  to  isyrrm,  §  is. 

3  pay  the  arrears  within  thirty  days  after  notice,  be  declared  forfeited,  and  is9^6,2S5'.^  ^^' 

4  the  withdrawal  value  of  the  shares  at  the  time  of  forefeitiu-e  shall  be  as-  J^,^-  m-  ^  ^^■ 

5  certained,  and,  after  deducting  all  fines  and  other  legal  charges,  the  bal-  §§  is.  45. 

6  ance  remaining  shall  be  transferred  to  an  account  to  be  designated  the 

7  "Forfeited  Share  Account",  to  the  credit  of  the  defaulting  shareholder, 

8  who  shall  be  entitled,  upon  giving  tliirty  days'  notice,  to  receive  out  of 

9  the  funds  appropriated  for  the  payment  of  withdrawals  the  balance  so 

10  transferred  without  interest  from  the  time  of  the  transfer,  all  defaulting 

11  shareholders  being  entitled  to  recei\'e  their  balance  so  transferred  in  the 

12  order  in  which  their  respective  notices  are  given.    All  shares  forfeited 

13  shall  cease  to  participate  in  any  profits  accruing  after  the  adjustment  and 

14  valuation  of  shares  last  preceding  said  forfeiture. 

1  Section  18.     The  directors  may  retire  the  unpledged  shares  of  any  Retirement 

2  series  after  four  years  from  the  date  of  their  issue,  by  enforcing  the  with-  1877,^224,  §  10. 

3  drawal  of  the  same  in  the  following  manner:  the  treasurer  shall  season-  §*f/cL3'' 

4  ably  send  to  every  shareholder  in  the  series  in  which  shares  are  to  be  fss|,25i',|  l 

5  retired  a  notice  in  the  following  form,  and  the  shares  shall  be  retired  in  iss^,  216, 1 2. 

6  accordance  with  its  provisions:  inos.  fls  §  1. 

The  board  of  directors  have  voted  to  retire  on  the  day  iyi2',  023; 

of  ,  19        ,  shares  in  series  No.  ,  §5 18, 45. 

in  which  you  are  a  shareholder.  luio',  350,  §  '45. 

i^liould  you  desire  to  have  your  shares,  or  any  number  of  them,  retired  and  to 
receive  the  full  value  thereof,  you  will  please  notify  the  treasurer  in  writing  on 
or  before  ,  19  . 

If  the  shares  voluntarily  offered  exceed  the  number  desired,  the  shares  to  be 
retired  will  be  determined  by  lot  from  those  offered. 

If  the  number  so  offered  is  less  than  the  number  desired,  the  number  offered 
shall  be  retired  and  the  balance  determined  by  lot  from  the  remaining  shares 
in  the  series. 

The  directors  may,  under  rules  made  by  them,  retire  matured  shares  at  any 
time  and  in  such  order  and  manner  as  they  may  provide. 

7  The  shareholders  whose  shares  are  retired  shall  be  paid  the  full  value 

8  thereof,  less  all  fines  and  any  other  charges  legally  inciu"red.     Shares 

9  pledged  for  share  loans  shall  be  treated  as  unpledged  shares.    Whenever 

10  shares  are  retired  between  the  dates  of  adjustment  of  profits,  interest 

1 1  shall  be  paid  upon  the  f idl  value  of  the  shares  from  the  date  of  the  prc- 

12  ceding  adjustment  to  the  date  of  retirement,  at  the  rate  at  which  profits 

13  were  distributed  at  said  preceding  adjustment. 


1902 


CO-OPER.^.TIVE  BANKS. 


[Chap.  170. 


The  commissioner,  whenever  he  deems  it  necessary  for  the  welfare  of  14 
the  shareholders  in  any  such  corporation,  may  order  the  retirement  of  15 
matured  shares,  or  of  unmatured  shares  in  any  series  after  four  years  16 
from  the  date  of  issue,  and  the  board  of  directors  shall,  in  the  manner  here-'  17 
inbefore  provided,  comply  with  the  order  of  the  commissioner.  18 


Maturity 
of  shares. 

1551,  271, 
§  1,  cl.  3. 

P.  S.  117,  §9. 

1552,  251,  §  1. 
1887,  21B,  §  5. 
1898.  247,  §  3. 
R.  L.  114,  §  10. 
1903,  95,  §  2. 
1912,  623, 

§§  17,45. 
1914,  643,  §  6. 
4  0p.  A.  G.  388. 
Op.  A.  G. 
(1919)  39. 


Section  19.  Whenever  shares  of  a  given  series  reach  the  value  of  1 
two  hundred  dollars,  either  by  the  payment  of  dues,  the  addition  of  a  2 
regular  dividend  or  the  addition  of  interest  as  hereinafter  proA'idefl,  they  3 
shall  be  deemed  matured  and  all  payments  of  dues  thereon  shall  cease,  4 
and  the  owner  of  each  unpledged  share  shall  be  paid  out  of  the  funds  of  5 
the  corporation  the  matured  value  thereof;  or  if  he  shall  so  elect,  and  at  6 
the  option  of  the  directors,  there  may  be  entered  on  his  pass  book  any  7 
number  of  shares  that  have  matured,  not  exceeding  ten,  and  such  shares  8 
shall  continue  as  matured  shares  in  said  corporation,  subject  to  be  with-  9 
drawn  or  retired  as  provided  in  sections  sixteen  and  eighteen,  but  at  no  10 
time,  except  as  provided  in  section  twenty,  shall  more  than  one  half  of  1 1 
the  funds  in  the  treasury  be  applicable  to  payment  of  shares,  either  12 
matured  or  unmatured  or  both,  without  the  consent  of  the  directors.  1.3 
For  the  purpose  of  determining  the  maturity  of  shares  between  the  dates  14 
of  adjustment  of  profits,  there  shall  be  added  to  the  value  of  the  shares  1.5 
interest  for  all  full  months  from  the  date  of  the  preceding  adjustment  to  16 
the  date  when  the  addition  thereof  will  mature  the  shares.  The  interest  17 
to  be  added  shall  be  at  the  same  rate  at  which  profits  were  distributed  at  18 
the  last  preceding  adjustment;  but  before  the  payment  of  matured  shares  19 
all  arrears  and  fines  shall  be  deducted.  In  the  event  of  a  dissolution  and  20 
winding  up  of  such  corporation,  by  process  of  law  or  otherwise,  any  mem-  21 
ber  holding  matured  shares  of  such  corporation  shall  not  thereby  be  22 
entitled  to  any  preference  over  any  holder  of  unmatured  shares,  and  all  23 
shares,  whether  matured  or  unmatured,  shall  be  held  and  treated  as  be-  24 
longing  to  one  general  class  of  liability.  25 


I 


deS^ed*i(fth-        Section  20.     Whenever  a  notice  of  withdrawal  of  either  matured  or     1 

drawaisand       unmatured  shares  has  been  filed,  or  shares  have  reached  maturity,  and     2 

shares.  either  shall  have  remained  unpaid  for  a  period  of  six  months  from  the    3 

1914',  643!  §  t'_  date  when  payment  thereof  is  due,  all  the  receipts  of  the  bank  from  any    4 

■  ^       ^'  source  whatever  shall,  after  the  payment  of  the  legitimate  expenses  of    5 

conducting  business,  be  applied  to  the  payment  of  such  withdrawals    6 

and  matured  shares;  and  the  board  of  directors  or  the  commissioner,  at     7 

his  discretion,  may  direct  that  such  payments  shall  be  made  upon  a    8 

ratable  and  proportionate  basis.    This  section  shall  not  apply  to  a  bank    9 

which  may  become  subject  to  sections  twenty-two  to  thirty-six,  in-  10 

elusive,  of  chapter  one  hundred  and  sixty-seven.  1 1 


Methods  of 
loaning  funds. 
1877,  224, 
§§  7,  12. 

1881.  271. 
§  l.cl.  4. 
P.  S.  117, 
§§  10,11. 

1882,  2.'->l,  §  2. 
1890,  78. 
1896,  277. 

R.  L.  114, 
§§  11,  12. 


LO.ANS   AND   INVESTMENTS. 

Section  21.     The  funds  accumulated,  after  due  allowance  for  all  1 

necessary  expenses  and  the  payment  of  shares,  shall,  at  each  stated  2 

monthly  meeting,  be  offered  to  applicants  according  to  the  premium  bid  3 

by  them  for  priority  of  right  to  a  real  estate  or  share  loan,  \\hich  shall  4 

consist  of  a  percentage  charged  on  the  amount  loaned  in  addition  to  5 

interest,  at  a  rate  not  less  than  five  per  cent  per  annum,  payable  in  0 

monthly  instalments.    If  the  corporation  so  provides  in  its  by-laws,  the  7 


Chap.  170.]  co-operative  banks.  1903 

8  bid  for  loans  shall,  instead  of  a  premium,  be  a  rate  of  annual  interest  not  i^io.  ass. 

9  less  than  five  per  cent  per  annum  payable  in  monthly  instalments  upon  §§  is,  45.' 

10  the  amount  desired.    Any  such  corporation  may,  when  so  authorized  by      p-   •   ■ 

1 1  its  by-laws,  dispense  with  the  offering  of  its  money  for  bids,  and  in  lieu 

12  thereof  may  loan  its  money  at  such  rate  of  interest  not  less  than  five  per 

13  cent  per  annum  or  interest  and  premium  as  may  be  fixed,  from  time  to 

14  time,  by  the  board  of  directors,  in  which  case  the  priority  of  right  to  a 

15  loan  shall  be  decided  by  the  priority  of  the  approved  applications  there- 

16  for.    Such  bids  or  rates  shall  include  the  whole  interest  to  be  paid  and 

17  may  be  at  any  rate  not  less  than  five  per  cent  per  annum. 

1  Section  22.     Any  person  whose  application  is  accepted  shall  be  en-  Limitation 

2  titled,  upon  giving  proper  security,  to  receive  a  real  estate  loan  of  a  sum  isyzf^l^,  §  7. 

3  not  exceeding  two  hundred  dollars  for  each  unpledged  share  held  by  him,  fsMi,  Va'  ^  ^°' 

4  or  a  share  loan  within  the  limitations  hereinafter  provided.  J^^^^'  ill'  §  11 

1910,288.  1912,  623,  §§20,  45. 

1  Section  23.     The  directors  may  invest  any  unsold  or  surplus  funds  Loans  and 

2  in  any  of  the  securities  named  in  the  second  clause  of  section  fifty-four  of  u"n3i"funds°* 

3  chapter  one  hundred  and  sLxty-eight,  or  may  loan  such  funds  upon  first  |*i*,  ^^4'" 

4  mortgages  of  real  estate  situated  in  this  commonwealth,  or  upon  the  Pj^^  ^^^-  ^  'O- 

5  shares  of  the  bank,  upon  the  conditions  imposed  by  section  twenty-five,  iso",  277.  ^ 

6  twenty-six  or  twentv-seven  of  this  chapter;  but  in  either  case  the  loans  1910^ ass! 

7  shall  be  at  the  highest  rate  obtained  on  a  real  estate  loan  at  the  last  ssal,  45.' 

8  preceding  monthly  sale  of  money  or  at  the  prevailing  rate  when  fixed  by 

9  the  board  of  directors. 

1  Section  24.     A  borrowing  shareholder  shall,  in  addition  to  the  dues  interest 

2  on  his  shares,  pay  interest,  and  the  premium,  if  any,  monthly  on  his  loan,  iss™!?!^,' 

3  at  the  determined  rate,  until  his  shares  reach  their  matured  value,  or  p/g.^in,  §  12. 

4  until  the  loan  has  been  repaid.     Interest  may  be  computed  from  the  f^l^  g!,|'  ^  '^' 

5  date  on  which  the  money  is  advanced;  and  when  the  said  matm-ed  value  ||  22, 45.' 

6  is  reached,  the  shares  shall  be  cancelled,  the  loan  discharged,  and  the  4  Op!  a?g.  3S8. 

7  balance,  if  any,  due  upon  the  shares  shall  be  paid  to  the  member. 

1  Section  25.     No  loan  shall  be  made  upon  real  estate  unless  a  written  Applications 

2  application  is  made  therefor,  showing   the  date,  name   of  applicant,  reai'estate." 

3  amount  of  loan  desired,  description  of  property  offered  and  other  informa-  ^^'^'  ^'^^'  ^  ^^• 

4  tion  deemed  necessary.    A  written  report  thereon  shall  be  made  by  at 

5  least  two  members  of  the  security  committee,  signed  by  them,  approv- 

6  ing  the  security  offered  and  certifying  to  the  value  of  the  property  ac- 

7  cording  to  their  best  judgment.     The  application  and  report  shall  be 

8  filed  and  preserved  with  all  other  papers  relating  to  the  loan,  and  when 

9  a  loan  is  made  the  equity  of  the  borrower  slmll  be  at  least  twenty  per 

10  cent  above  all  encumbrances  when  the  security  is  improved  real  estate, 

11  and  at  least  fifty  per  cent  when  the  security  is  vacant  land,  less  the  with- 

12  drawal  value,  at  the  time  when  the  loan  is  made,  of  any  shares  that  are 

13  pledged  as  security  therefor. 

1  Section  26.     For  every  loan  made  upon  real  estate  a  note  shall  be  Loans  on 

2  given,  accompanied  by  a  transfer  and  pledge  of  the  requisite  number  of  iwVfj'Mrs  8. 

3  shares  standing  in  the  name  of  the  borrower,  and  secured  by  a  mortgage  Jf*/-  -'^'  ^  '• 

4  of  real  estate  situated  in  the  commonwealth,  the  title  to  which  is  in  the  p^|j  ijVJ;  |i3. 


1904 


CO-OPERATIVE   B.^JSTKS. 


[Chap.  170. 


1894, 

342, 

5  1. 

R.  L. 

114, 

I  14. 

1904, 

292. 

1912, 

623, 

§§24 

.45. 

1918, 

83,  §  2. 

2  Op. 

A.  & 

.462 

o 
G 
7 
8 
9 
10 
11 


name  of  the  borrower  and  which  is  unencumbered  by  any  mortgage  or 
lien  other  than  municipal  liens  or  such  as  may  be  held  by  the  bank  making 
the  loan.  No  loan  upon  one  parcel  of  real  estaje  shall  exceed  eight  thou- 
sand dollars.  The  shares  so  pledged  shall  beTield  by  the  corporation  as 
collateral  security  for  the  performance  of  the  conditions  of  the  note  and 
mortgage.  The  note  and  mortgage  shall  recite  the  number  of  shares 
and  the  series  to  which  the  shares  belong  and  the  amount  of  money  ad- 
vanced thereon,  and  shall  be  conditioned  upon  the  payment  at  or  before  12 
the  stated  meetings  of  the  corporation  of  the  monthly  dues  on  said  shares,  13 
and  the  interest  and  premium,  if  any,  upon  the  loan,  with  all  fines  on  14 
payments  in  arrears,  until  said  shares  reach  theii-  matured  value,  or  said  15 
loan  is  otherwise  cancelled  and  discharged.  16 

If  the  borrower  fails  to  offer  secm-ity  satisfactory  to  the  directors  within  17 
the  time  prescribed  by  the  by-laws,  his  right  to  the  loan  shall  be  forfeited  18 
and  he  may  be  charged  with  one  month's  interest  and  one  month's  19 
premium,  if  any,  at  the  determined  rate,  and  with  such  part  of  the  ex-  20 
penses  incurred  as  may  be  determined  by  the  board  of  duectors;  and  the  21 
money  appropriated  for  such  loan  may  subsecjuently  be  reloaned.  22 


shares.""              SECTION  27.     Loaus  may  be  made  upon  unpledged  shares  to  an  amount  1 

i9is!  loi'.  ^  ^^'  ^ot  exceeding  ninety  per  cent  of  their  withdrawal  value  at  the  time  of  2 

4  Op.  A.  G.  3SS.  the  loan,  and  for  every  such  loan  a  note  shall  be  given,  accompanied  by  a  3 

transfer  and  pledge  of  the  shares  borrowed  upon.    Loans  may  be  made  4 

upon  matured  shares  to  an  amount  not  exceeding  ninety  per  cent  of  5 

their  face  value,  as  represented  by  the  certificate.     For  every  such  loan  6 

a  note  shall  be  given  accompanied  by  a  transfer  of  the  certificate  as  col-  7 

lateral  for  the  loan.  8 


Agreement  for 
reduction  of 
interest  or 
premium. 
1894,  342,  §  2. 
R.  L.  114,  §  15. 
1912,  623, 
§§  26,  45. 
4  Op.  A.  G.  335. 


Section  28.  If  a  borrower  purchases  money  at  a  lower  rate  than  1 
that  paid  by  him  on  an  existing  loan,  secured  by  a  mortgage,  for  the  2 
purpose  by  him  declared  of  reducing  the  premium  or  rate  of  interest  3 
upon  said  loan,  a  new  mortgage  shall  not  be  required,  but  a  written  4 
agreement  for  the  reduction  of  said  premium  or  rate  of  interest,  signed  5 
by  the  borrower  and  the  treasurer  of  the  bank,  with  the  written  approval  6 
of  the  president,  shall  be  valid,  and  shall  not  impair  or  otherwise  affect  7 
the  existing  mortgage;  and  thereafter  the  borrower  shall  make  the  8 
monthly  payments  on  the  loan  in  accordance  with  the  terms  of  said  agree-  9 
ment,  and  the  amount  of  money  previously  so  purchased  by  him  may  be  10 
re-sold  by  the  bank  at  the  same  meeting.  11 


Repayment 
of  loans. 
1877,224,5  11. 
P.  S.  117,  §  14. 
1887,  216,  §  4. 
R.  h.  114, 
5§  16,  17. 
1906,  280. 
1912,  623, 
§§  27,  45. 


Section  29.     A  borrower  or  one  of  several  joint  borrowers  or  his  heirs  1 

or  assigns  may  repay  a  loan  at  any  time,  whereupon  his  account  shall  be  2 

charged  with  the  full  amount  of  the  loan,  all  monthly  instalments  of  3 

interest,  premium  and  fines  in  arrears  and  any  other  legal  charges,  and  4 

shall  be  given  credit  for  the  withdrawal  value  of  his  shares  pledged  and  5' 

transferred  as  security;   the  pass  book  shall  be  surrendered  to  the  cor-  t> 

poration  and  the  balance  shall  be  received  by  the  corporation  in  full  sat-  7 

isfaction  of  said  loan.    All  settlements  made  between  stated  meetings  of  8 

the  directors  shall  be  made  as  of  the  date  of  the  stated  meeting  next  sue-  9 

ceeding  such  settlement.     A  borrower  desiring  to  retain  his  shares  and  10 

membership  may  repay  his  loan  without  claiming  credit  for  his  shares,  11 

whereupon  the  shares  shall  be  transferred  to  him  free  from  any  claim  on  12 

account  of  the  repaid  loan.  13 


CbJlV.    170.]  CO-OPERATIVE   B.\NKS.  1905 

14  Partial  payments  of  loans  shall  be  received  in  amounts  of  fifty  dollars 

15  or  a  multiple  thereof,  or  in  such  less  amount  as  may  be  fixed  by  the  by- 

16  laws.    For  each  two  hundred  dollars  so  repaid  upon  a  real  estate  loan 

17  one  share  of  stock  shall  be  released  from  pledge. 

18  With  the  approval  of  the  board  of  directors,  any  borrower  upon  real 

19  estate  secm-ity,  unless  the  property  is  encumbered  by  a  mortgage  other 

20  than  that  held  by  the  bank  and  dated  prior  to  November  first,  nineteen 

21  hundred  and  twelve,  may  have  the  full  value  of  the  shares  upon  which 

22  the  loan  is  predicated,  less  such  sum  as  will  leave  the  amount  of  the  loan 

23  a  multiple  of  fifty  dollars,  applied  as  a  credit  to  the  amount  of  the  loan 

24  as  hereinafter  provided,  whereupon  such  shares  shall  become  cancelled, 

25  andnew  shares  in  the  current  series  shall  be  issued  to  the  borrower  in  the 

26  proportion  of  one  share  to  each  two  hundred  dollars  of  the  loan  remaining 

27  unpaid  after  the  application  of  the  value  as  aforesaid.    The  new  shares 

28  issued  shall  be  transferred  and  pledged  to  the  bank  as  security  for  the 

29  balance  of  the  loan,  and  the  fact  thereof  shall  be  endorsed  upon  or  at- 

30  tached  to  the  note  in  the  following  form: 

,19        . 

The  value  of  the  shares  herein  pledged,  less  such  sum  as  will  leave  the  amount 
of  the  loan  a  multiple  of  fifty  dollars,  amounting  to  $  has  this  day  been 

applied  as  a  credit  upon  this  note,  leaving  a  balance  due  and  unpaid  of  $  , 

to  secure  wliich  shares  of  series  have  been  issued,  and 

are  hereby  transferred  and  pledged.  For  value  received,  1  promise  to  pay  to  said 
corporation  or  to  its  order  dollars  at  or  before  its  montljy  meeting 

on  the  of  each  month  hereafter,  being  the  amount  of  the  monthly 

dues  on  the  shares  hereby  substituted,  and  of  the  montlily  interest  upon  said  bal- 
ance of  $  ,  together  with  all  fines  chargeable  by  the  by-laws  of  said  cor- 
poration upon  arrears  of  such  pa\anents  untU  said  substituted  shares  shall  reach 
maturity,  or  otherwise  sooner  to  pay  to  said  corporation  or  its  order  the  said  bal- 
ance of  $  ,  with  interest  and  fines  as  aforesaid. 

Witness, 

Treasurer. 

31  Neither  the  note  evidencing  the  loan  nor  the  mortgage  seciu-ing  the 

32  same  shall  be  prejudiced  by  the  application  of  the  value  and  the  change 

33  of  shares,  notwithstanding  the  fact  that  a  provision  for  such  application 

34  and  change  was  not  originally  made  in  the  note  or  mortgage,  and  both 

35  note  and  mortgage  shall  continue  to  be  held  by  the  bank  as  good  and 

36  sufficient  seciuity  for  the  balance  remaining  unpaid.    After  the  applica- 

37  tion  of  the  value  as  a  credit,  the  amount  of  the  loan  shall  forthwith  be 

38  reduced  to  an  equal  extent,  and  the  borrower  shall  thereafter  be  liable 

39  for  only  the  reduced  amount  and  any  arrearages  or  penalties  occasioned 

40  by  his  own  default. 


1  Section  30.     Any  such  corporation  may  piuchase  at  public  or  private  Real  estate 

2  sale  real  estate  upon  which  it  may  have  a  mortgage,  judgment,  lien  or  coimnon  form 

3  other  encumbrance,  or  in  which  it  may  have  an  interest,  and  may  sell,  i8°77f224r§  17 

4  convey  or  lease  the  real  estiite  acquired  by  it  and,  on  the  sale  thereof,  ^siii,247',V2! 

5  may  take  a  mortgage  thereon  in  common  form  to  seciue  the  payment  of  J*"^'  -J''^-  5  ^^ 

6  the  purchase  price  or  of  a  part  thereof.    All  real  estate  shall  be  sold  within  m\~;  ''-s.' 

7  five  years  after  the  acquisition  of  the  title  thereto;  but  the  commissioner  ioui/aso,  1 45. 

8  may,  on  petition  of  the  security  committee  of  the  corporation  and  for      '' 

9  cause,  grant  additional  time  for  the  sale  of  the  same. 


1906 


CO-OPERATIVE   BANKS. 


[Ch.^.  170. 


May  hold  real 

estate  used  as 

place  of 
business. 

1906 

204 

§11, 

3,5. 

1913 

2fi4. 

1919 

350, 

§45 

Recovery 

of  loan. 

1877, 

224, 

§§8, 

13. 

P.  S. 

117, 

§  16. 

1882, 

251, 

§  1. 

1885, 

121, 

§  4. 

R.  L 

114, 

I  19. 

1912, 

623, 

M29 

,45. 

2  Op. 

A.  G 

.286. 

Section  31.     Any  such  corporation  may,  with  the  approval  of  the  1 

commissioner,  invest  a  sum  not  exceeding  its  surplus  account  in  the  2 

purchase  of  a  suitable  site  and  the  erection  or  preparation  of  a  suitable  3 

building  for  the  convenient  transaction  of  its  business,  but  in  no  case  4 

exceeding  two  per  cent  of  its  dues  capital.  5 

Section  32.     If  a  borrower  is  in  arrears  for  dues,  interest,  premium  or  1 

fines  for  more  than  four  months,  or  commits  any  other  breach  of  the  2 

conditions  of  a  mortgage,  the  directors  may,  after  twenty-one  days'  3 

notice,  mailed  to  the  last  known  address  of  tlie  borrower,  declare  the  4 

shares  forfeited  if  the  arrears  then  remain  unpaid  or  such  breach  con-  5 

tinues.    The  account  of  such  borrower  shall  then  be  debited  with  the  6 

arrears  of  interest,  premium  and  fines  to  the  date  of  forfeiture,  and  the  7 

shares  shall  be  credited  upon  the  loan  at  their  withdrawal  value.    The  8 

balance  of  the  accomit  shall  immediately  become  due  and  payable,  and  9 

may,  and  after  six  months  shall,  be  enforced  against  the  security,  and  be  10 

recovered,  together  with  interest  thereon,  as  all  debts  are  recovered  at  11 

law.     If  the  shares  of  a  borrower  are  in  arrears  at  the  maturity  of  the  12 

series,  his  account  shall  be  charged  with  the  amount  of  the  loan  and  all  13 

arrears  at  the  date  of  maturity,  and  shall  be  credited  with  the  value  of  14 

the  shares;    the  balance  of  the  account  shall  immediately  become  due  15 

and  payable  and  may,  and  after  sLx  months  shall,  be  enforced  against  the  16 

security,  and  be  recovered,  together  with  interest  thereon,  as  all  debts  17 

are  recovered  at  law.  18 


Borrowers  en- 
gaged in  war 
service;  pay- 
ments may  be 
suspended. 
1918,47,  §  1, 


Section  33.  For  the  accommodation  of  any  borrower  who  is  actually  1 
engaged  in  the  military  or  naval  service  of  the  United  States,  or  who  is  2 
the  wife  or  a  dependent  member  of  the  family  of  a  person  so  engaged,  3 
the  directors  of  such  corporation  may,  at  their  option,  endorse  on  the  4 
mortgage  note  of  such  borrower  held  by  the  bank,  the  full  value  of  the  5 
shares  pledged  to  secure  the  same,  and  thereupon  such  shares  shall  be  6 
cancelled  and  further  payments  and  fines  thereon  waived,  provided  that  7 
the  person  seeking  such  accommodation,  or  any  person  in  his  behalf,  8 
shall  sign  a  \\Titten  request  therefor,  agreeing  in  consideration  thereof,  9 
to  abide  fully  by  the  terms  of  this  and  the  following  section.  Interest,  10 
however,  shall  continue  to  be  paid  monthly  on  the  balance  at  the  orig-  1 1 
inal  rate,  subject  to  such  fine  as  may  be  prescribed  by  the  by-laws  of  the  12 
bank  for  default  by  shareholders  in  payment  of  interest  and  to  foreclosure  13 
or  other  remedy  provided  by  law,  in  case  of  default.  14 


^cll^rymente.      Section  34.     At  ally  time  after  the  ex-piration  of  the  said  military  or  1 

1918, 47.  §  2.     naval  service,  or  upon  the  alienation  of  the  mortgaged  estate,  the  person  2 

thus  accommodated,  or  his  successors  in  title,  shall,  at  the  request  of  the  3 

directors,  subscribe  to  and  pledge  as  security  for  said  balance,  one  new  4 

share  in  the  current  series  issued  by  the  bank,  for  each  two  hundred  dol-  5 

lars  or  fraction  thereof  of  said  balance.     Failm-e  to  subscribe  to  and  6 

pledge  such  shares,  when  so  requested,  or  to  make  payments  thereon  in  7 

accordance  with  law  or  the  by-laws  of  the  bank,  shall  render  said  balance  8 

immediately  due  and  payable,  and  payment  thereof  may  be  enforced  9 

against  the  security  by  foreclosure  proceedings  or  by  any  other  remedy  10 

provided  by  law  for  the  collection  of  debts.  1 1 

cumbrancers          Section  35.     The  two  preceding  sections  shall  not  affect  the  rights  1 

im^^Ts.     °^  junior  encumbrancers.  2 


Chap.  170.]  co-oper.\tive  b.vnks.  1907 

1  Section  36.     Any  such  corporation  may  insert  in  its  form  of  real  ^nj*^™' 

2  estate  mortgage  a  clause  providing  that  in  case  of  any  loss  by  fire  on  insurance 

3  the  mortgaged  property  in  respect  to  which  the  fare  insurance  companies  laoy.  351. 

4  shall  deny  liability  as  to  the  insured  the  bank  may  at  its  option  assign      "'  "  ' 

5  the  debt  and  note  for  which  the  mortgage  was  given,  and  also  the  mort- 

6  gage,  to  the  insurance  companies,  upon  payment  to  the  bank  by  such 

7  companies  of  the  amount  due  upon  the  mortgage  loan  at  the  time  of  the 

8  fire,  together  with  the  unpaid  interest,  premium  and  fines,  if  any,  accrued 

9  thereon  at  the  date  of  the  assignment  less  the  value  of  the  forfeited  shares 

10  as  hereinafter  provided,  whereupon  the  note  and  mortgage  shall  forth- 

11  with  become  a  note  and  mortgage  for  such  total  balance  due,  payable 

12  upon  demand  with  interest  semi-annually  at  the  same  rate,  including 

13  premium,  if  any,  as  therein  stated,  the  first  payment  of  interest  to  be 

14  due  six  months  after  the  date  of  the  assignment,  and  any  shares  of  the 

15  bank  pledged  as  security  for  the  note  and  mortgage  loan  shall  be  for- 

16  feited  by  the  bank  immediately  before  the  execution  and  delivery  to  the 

17  insurance  companies  of  such  assignment,  and  the  withdrawal  value  of 

18  shares  so  forfeited  shall,  at  the  time  of  the  assignment,  be  credited  as 

19  a  part  payment  on  said  mortgage  loan,  the  balance  thereof  being  the 

20  balance  of  the  loan  due  at  the  time  of  the  assignment  to  the  insurance 

21  companies  as  aforesaid.     Any  mortgage  note  taken  under  tliis  section 

22  shall  contain  proper  reference  thereto. 

GENERAL   PROVISIONS. 

1  Section  37.     A  shareholder  making  default  in  the  pajTnent  of  his  Fines. 

2  monthly  dues,  interest  and  premiums,  shall  be  charged  such  a  fine,  not  p.  s.'ii7,'§  is.' 

3  exceeding  two  per  cent  a  month  on  each  dollar  in  arrears,  as  may  be  i896[2S5! 

4  fixed  by  the  by-laws.    No  fines  shall  be  charged  after  the  ex-piration  of  55  }"g  "q/ 

5  six  taonths  from  the  first  lapse  in  any  such  payment,  nor  upon  a  fine  in  ^^31  ^H' 

6  arrears. 

7  No  shareholder  whose  shares  are  withdrawn,  forfeited  or  retired,  shall 

8  be  charged  M'ith  fines  upon  such  shares  in  excess  of  the  profits  distributed 

9  thereto,  and  if  no  profits  shall  have  been  distributed  to  such  shares  no 

10  fines  shall  be  charged  thereon.    Tliis  section  shall  not  prevent  a  borrower 

11  from  being  charged  with  fines  according  to  law  upon  interest  and  pre- 

12  miums  in  arrears. 

1  Section  38.     No  such  corporation,  and  no  person  acting  in  its  behalf,  offi^j°not  ,„ 

2  shall  ask  for,  take  or  receive  a  fee,  brokerage,  commission,  gift  or  other  ta^^e  certain 

3  consideration  for  or  on  account  of  a  loan  made  by  or  on  behalf  of  such  Penalty. 

4  corporation,  other  than  appears  on  the  face  of  the  note  or  contract  by  r.  l'.  114,  §  21. 

5  wliich  the  loan  purports  to  be  made;  but  tliis  section  shall  not  apply  to  §§32,45.' 

6  a  reasonable  charge  for  services  in  the  examination  of  property  and 

7  titles,  and  for  the  preparation  and  recording  of  conveyances  to  the  cor- 

8  poration  as  secinity  for  its  loans.    'Whoever  violates  any  provision  of 

9  this  section  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  nor 
10  more  than  one  thousand  dollars. 

1  Section  39.    Any  such  corporation  may  charge  a  fee  for  the  transfer  Transfer  of 

2  of  shares  not  exceeding  twenty-five  cents.    The  amount  of  such  fee  shall  moTMsfTM. 

3  be  fixed  by  the  by-laws.    Shares,  both  unmatured  and  matured,  may  be  i^'*'  ^^- '  ®- 

4  transferred  only  on  the  books  of  the  corporation,  in  such  manner  as  its 

5  by-laws  may  provide. 


1908 


CO-OPERATIVE  B-ANKS. 


[Chap.  170. 


Distribution 
of  earnings. 
1877,  224,  §  15. 
1881,  271,  §  1, 
cl.  2. 

P.  S.  117,  §  IS. 
R.  L.  114,  §  23. 
1912,  623, 
§§  34,  45. 
1914,  643,  §  9. 


Section  40.  The  board  of  directors  shall  distribute  the  profits  and  1 
losses  annually,  semi-annually  or  quarterly  to  the  shares  then  existing,  2 
and  whenever  a  new  series  of  shares  is  to  be  issued.  Profits  and  losses  3 
shall  be  distributed  to  the  various  shares  existing  at  the  time  of  such  dis-  4 
tribution,  in  proportion  to  their  value  at  that  time,  and  shall  be  computed  5 
upon  the  basis  of  a  single  share  fully  paid  to  the  date  of  distribution.  6 
Losses  shall  be  apportioned  immediately  after  their  occurrence.  At  each  7 
distribution  of  profits  on  unmatiu-ed  shares  there  shall  also  be  distributed  8 
profits  on  outstanding  matured  shares  at  a  rate  per  cent  fixed  by  the  9 
directors  but  not  in  excess  of  the  rate  distributed  to  unmatured  shares.  10 
Profits  distributed  on  outstanding  matured  shares  shall  be  credited  to  11 
the  owner  thereof  and  shall  be  payable  on  demand  at  any  time  thereafter,  12 
out  of  the  funds  of  such  corporation,  and  upon  such  profits  not  with-  13 
dra^^^^  no  interest  or  profits  shall  accrue  or  be  distributed.  The  board  14 
of  directors  shall  cause  to  be  recorded  in  the  minutes  of  its  meetings  the  15 
distribution  of  all  profits  and  losses.  16 


Guaranty 
fund. 
1885,  121, 
R.  L.  114, 
1003,  203. 
1912,  623, 
§S  35,  45. 


S24. 


Section  41.     At  each  distribution  of  profits  the  board  of  directors  1 

shall  reserve  as  a  guaranty  fund  not  less  than  one  nor  more  than  five  per  2 

cent  of  the  net  profits  accrued  since  the  last  preceding  adjustment,  until  3 

such  fund  amounts  to  five  per  cent  of  the  dues  capital  and  profits  capital,  4 

and  the  fund  shall  thereafter  be  maintained  and  held,  and  shall  at  all  5 

times  be  available  to  meet  losses  in  the  business  of  the  corporation  from  6 

depreciation  of  its  securities  or  otherwise.    The  board  of  directors  may  7 

at  any  time,  by  vote  duly  recorded,  transfer  to  the  guaranty  fund  such  8 

part  of  the  surplus  account  as  they  deem  wise.  9 


Surplus 
account. 
1900,  273. 
R.  L.  114,  §  25. 
1912,  623. 
§§  30,  45. 


Section  42.  At  each  distribution  of  profits  not  more  than  one  per  1 
cent  of  the  net  profits  accrued  since  the  last  preceding  adjustment  shall  2 
be  credited  to  the  surplus  account  unless  there  shall  have  been  reserved  3 
and  credited  to  the  guaranty  fund  the  maximum  per  cent  of  the  net  profits  4 
under  the  preceding  section.  Any  such  corporation  may  hold  in  its  5 
surplus  account  such  sum  as  the  board  of  directors  may,  from  time  to  6 
time,  deem  wise;  but  whenever  the  guaranty  fund  and  surplus  account  7 
together  exceed  five  and  one  fourth  per  cent  of  the  dues  capital  and  8 
profits  capital,  the  board  of  directors  shall  declare  an  extra  dividend  at  9 
such  rate  as  may  be  necessary  to  apportion  to  the  shareholders  the  ac-  10 
cumulation  in  excess  of  five  per  cent  of  dues  capital  and  profits  capital.       1 1 


General 
accounts. 
1877,  224, 
P.  S.  117, 
R.  L.  114, 
1912,  623, 
§1  37,  45. 
173  Mass. 


54. 


Section  43.     The  general  accounts  of  every  such  corporation  shall  be  1 

jl*-  kept  by  double  entry  and  the  treasurer  shall,  at  least  monthly,  make  a  2 

22.  trial  balance  of  such  accounts,  to  be  recorded  in  a  book  provided  for  that  3 

purpose.    All  money  received  from  each  shareholder  shall  be  received  by  4 

persons  designated  by  the  directors,  and  entered  in  a  pass  book  provided  5 

for  the  use  of,  and  to  be  held  by,  the  shareholder.    The  pass  book  shall  6 

be  plainly  marked  with  the  name  and  address  of  the  shareholder,  the  7 

number  of  shares  held  by  him  and  the  number  or  designation  and  date  8 

of  issue  of  each  series  or  issue  to  which  said  shares,  respectively,  belong.  9 

All  payments  from  the  funds  of  every  such  corporation  shall  be  made  10 

by  the  treasm-er,  and  the  record  of  such  payments  shall  show  the  date,  1 1 

name  of  payee,  amount,  purpose  for  whic'h  made,  and  the  signature  of  12 

the  payee  acknowledging  receipt  of  the  funds.  i;5 


Chap.  170.]  co-oper.\tive  b.\nks.  1909 

1  Section  44.     Every  such  corporation  shall  annually,  within  thirty  Annual 

2  days  after  the  last  business  day  of  October,  make  to  the  commissioner,  ilsg^fss,  §  2. 

3  in  such  form  as  he  prescribes,  a  report,  signed  and  sworn  to  by  the  treas-  ^^l[  \\\\  §  30. 

4  urer  of  the  corporation,  showing  accurately  the  condition  thereof  at  il^f'fs' 

5  close  of  business  on  that  day.    The  president  and  tliree  or  more  directors  J^JO'  |||- 

6  shall  certify  and  make  oath  that  the  report  is  correct,  according  to  their  Ǥ  ss,  45.' 

7  best  knowledge  and  belief.     If  a  report  is  defective  or  appears  to  be 

8  erroneous,  the  commissioner  shall  notify  the  bank  to  amend  the  same 

9  within  fifteen  days.    A  bank  neglecting  to  make  the  report  required  by 

10  this  section  on  or  before  the  time  named  therein,  or  to  amend  the  same 

1 1  within  fifteen  days,  if  notified  by  the  commissioner  so  to  do,  shall  forfeit 

12  five  dollars  for  each  day  during  which  such  neglect  continues. 

1  Section  45.     If  two  or  more  such  banks  doing  business  in  the  same  Consolidation 

2  town  desire  to  consolidate,  a  special  meeting  of  the  shareholders  of  each  1904T392. 

3  of  said  banks  shall  be  called,  and  notice  of  such  special  meeting  and  of  §|°i','3,°5.' 

4  the  business  to  come  before  it  shall  be  sent  by  the  clerk  of  each  bank  to  }g}|;  gig;  |  If 

5  each  member  thereof  by  mail,  postage  prepaid,  at  least  seven  daj's  before 

6  the  date  of  the  meeting.    Notice  of  the  meeting  shall  also  be  advertised 

7  three  times  in  one  or  more  newspapers  published  in  that  town,  and  if  there 

8  be  none  such,  then  in  a  newspaper  published  in  the  county  where  the  town 

9  is  located,  the  last  publication  to  be  at  least  one  day  before  the  meeting; 

10  and  if  two  tliirds  or  more  of  the  shareholders  of  each  of  the  banks  intend- 

1 1  ing  to  consolidate  signify  in  writing  their  approval  of  the  consolidation, 

12  and  if  two  tliirds  or  more  of  the  shareholders  of  each  of  said  banks,  pres- 

13  ent  and  voting  at  such  special  meeting,  vote  in  favor  of  the  consolidation, 

14  then  the  board  of  directors  of  each  bank  shall  forthwith  petition  the 

15  commissioner  for  authority  to  consolidate  in  accordance  with  the  fol- 

16  lowing  provisions: 

17  (a)  The  said  petition  shall  be  in  \\Titing,  signed  for  and  in  behalf  of  the 

18  board  of  directors  of  each  bank  by  the  president  and  treasurer  thereof, 

19  and  shall  have  annexed  thereto  an  affidavit  signed  and  sworn  to  by  the 

20  clerk  stating  that  the  notices  of  the  special  meeting  were  duly  given  and 

21  that  the  preceding  requirements  of  this  section  were  complied  with,  and 

22  the  affidavit  shall  be  prima  facie  evidence  that  such  requirements  were 

23  complied  with.    There  shall  also  be  annexed  to  the  petition  a  duly  at- 

24  tested  copy  of  the  records  of  the  meeting  of  the  shareholders  of  each 

25  bank  authorizing  such  action,  signed  by  the  clerk,  and  a  duly  attested 

26  copy  of  the  balance  sheet  of  each  bank  at  the  close  of  business  on  the 

27  last  day  of  the  month  previous  to  the  date  of  the  petition,  signed  by  the 

28  treasurer. 

29  (b)  The  commissioner  shall  at  once  select  a  competent  auditor,  who 

30  shall  make  a  thorough  audit  of  the  books  and  assets  of  each  bank,  which 

31  shall  include  a  verification  of  the  pass  books  of  the  shareholders  with 

32  the  ledgers  of  each  bank.    The  auditor  shall  submit  a  written  report  of 

33  liis  findings  to  the  commissioner;   and  the  expenses  of  such  audit,  pro- 

34  vided  that  the  consolidation  is  not  finally  approved  by  the  commissioner, 

35  shall  be  borne  by  the  petitioning  banks  in  proportion  to  their  dues  cap- 

36  ital,  but  if  the  consolidation  is  approved  and  carried  out  the  continuing 

37  bank  shall  bear  the  expense  of  the  audit,  legal  services  and  other  charges, 

38  authorized  and  incident  to  the  proposed  consolidation. 

39  (c)  If  the  said  reports  disclose  to  the  commissioner  a  condition  favor- 

40  able  to  consolidation,  the  order  for  consolidation  may  be  issued  with  in- 

41  structions  in  detail  as  follows: 


1910  CO-OPERATIVE  B.USTKS.  [ChAP.    170. 

(1)  The  assets  of  each  bank  shall  be  turned  over  to  the  continuing  42 
bank  as  soon  as  the  order  for  consolidation  is  issued  by  the  commissioner,  43 
and  the  continuing  bank  shall  thereupon  assume  all  liabilities  accrued  44 
on  account  of  the  outstanding  shares  issued  by  the  banks  the  assets  of  45 
which  are  so  taken  over,  and  shall  be  subject  to  all  the  liabilities  of  such  46 
banks  except  as  otherwise  specifically  provided  herein,  and  thereafter  47 
all  business  shall  be  done  under  the  title  of  the  continuing  bank  except  48 
as  otherwise  provided  in  subdivision  (/).  49 

(2)  No  more  shares  shall  be  sold  by  the  banks  taken  over,  but  during  50 
the  life  of  the  series  of  shares  already  issued  by  such  banks,  and  out-  51 
standing,  separate  accounts  shall  be  kept,  and  the  montldy  payments  52 
shall  be  due  and  payable  as  if  said  banks  had  not  been  taken  over.  53 

(d)  All  liabilities  of  the  consolidated  banks  for  current  ex-penses  shall  54 
be  adjusted  and  paid  by  each  bank  before  the  consolidation  is  finally  ap-  55 
proved  by  the  commissioner,  and  a  certificate  to  that  effect  from  each  56 
bank,  signed  and  sworn  to  by  its  president,  treasiu-er  and  a  majority  of  its  57 
directors,  shall  be  filed  with  the  commissioner  and  shall  be  prima  facie  58 
evidence  that  the  said  liabilities  have  been  discharged  in  full.  59 

(e)  At  the  time  of,  and  upon  final  approval  of,  the  consolidation,  all  60 
the  offices  of  the  banks  whose  assets  and  business  are  taken  over  by  the  61 
continuing  bank  shall  forthwith  become  vacant  and  be  abolished,  and  62 
the  continuing  bank,  its  officers,  by-laws  and  rules  for  doing  business,  63 
shall  govern  and  control  in  all  matters  relating  to  the  banks  consolidated.  64 

(/)  A  new  name  or  the  name  of  any  one  of  the  petitioning  banks  may  be  65 
adopted  as  the  name  of  the  continuing  bank  at  the  special  meeting  called  66 
as  herein  provided ;  and  if  such  proposed  name  is  set  forth  in  the  petition  67 
to  the  commissioner  and  is  approved  by  liim,  it  shall  become  the  name  of  68 
the  continuing  bank,  upon  the  final  approval  of  the  consolidation,  without  69 
further  action  under  the  laws  of  the  commonwealth  as  to  change  or  adop-  70 
tion  of  a  new  name  on  the  part  of  the  continuing  bank.  71 

Powers  and  SECTION  46.     The  commissiouer  shall  have  the  same  duties  and  powers     1 

commissioner,    in  rcspcct  to  cvcry  such  corporation  which  he  has  in  respect  to  savings    2 

p. s.'n7,§20.   banks.    In  the  examination  of  every  co-operative  bank  inquiry  shall  be    3 

fgoe,'  20*!  ^  ^^'  made  as  to  the  nature  and  resources  of  the  corporation  in  general,  the    4 

1912. 623;         methods  of  conducting  and  managing  its  affairs,  the  actions  of  its  officers,     5 

flilf'sM)  ^^^  investment  of  its  funds,  and  whether  the  administration  of  its  affairs    6 

§  45.'      '         is  in  compliance  with  its  by-laws  and  with  statutory  requirements.    At    7 

'  each  visitation,  a  thorough  examination  and  audit  shall  be  made  of  the    8 

books,  securities,  cash,  assets,  liabilities,  income  and  expenditures,  includ-    9 

ing  a  trial  balance  of  the  shareholders'  ledgers,  for  the  period  elapsed  since  10 

the  preceding  examination.     The  person  in  charge  of  the  examination  11 

shall  render  to  the  commissioner  a  report  of  his  findings,  in  such  form  as  12 

the  commissioner  prescribes,  and  a  copy  thereof  shall  be  rendered  to  the  13 

board  of  directors  within  ten  days  after  the  original  has  been  submitted  14 

to  the  commissioner,  together  with  a  notice  of  the  amount  of  the  fee  to  15 

be  paid  as  provided  in  the  following  section,  which  shall  be  due  and  pay-  16 

able  within  thirty  days  after  the  date  of  the  notice.    Upon  the  failure  of  17 

any  such  corporation  to  pay  the  required  fee  within  the  time  prescribed  18 

herein,  the  commissioner  shall  report  the  facts  to  the  attorney  general,  19 

who  shall  immediately  bring  an  action  to  recover  the  fee.     The  com-  20 

missioner  shall  annually  make  a  report  to  the  general  coiut  of  such  facts  21 

and  statements  relative  to  such  corporations,  and  in  such  form,  as  he  22 

considers  that  the  public  interest  requires.    The  officers  of  every  such  23 


CiL^p.  171.] 


CREDIT    UNIONS. 


1911 


24  corporation  shall  answer  truly  all  inquiries  made,  and  shall  make  all 

25  returns  required  by  the  commissioner. 


To  defray  in  part  the  expense  of  the  examination  and  Fees  for 

*■  examination 


1  Section  47 

2  audit  provided  for  by  the  preceding  section,  every  such  corporation  so  and"audi 


3  examined  and  audited  shall,  upon  notice  from  the  commissioner,  pay  isiq!  sso]  |  45! 

4  to  him  a  fee  of  ten  cents  for  each  one  thousand  dollars  of  assets  as  shown 

5  by  the  statement  of  condition  of  the  bank  at  the  date  of  the  examina- 

6  tion  and  audit. 

1  Section  48.     No  person,  and  no  association  or  corporation,  except  Co-operative 

2  foreign  associations  and  corporations  duly  licensed  by  the  commissioner  done oniymLr 

3  prior  to  April  fourteenth,  eighteen  huiadred  and  ninety-six,  to  transact  EKe^ptim!'^' 

4  business  in  this  commonwealth,  shall  transact  tJie  business  of  accumulat-  issq,  452 

5  ing  the  savings  of  its  members  and  loaning  to  them  such  accumulations  f|g{,'  |jg 

6  in  the  manner  of  a  co-operative  bank,  unless  incorporated  in  this  com-  f|„l'  1,„r' 


7  monwealth  for  such  piu-pose.     Whoever  violates  any  provision  of  this  R-  l'  ih,  §  i- 

8  section  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars,  §§  i.'s,  5.' 

9  and  the  supreme  judicial  or  superior  court  shall  have  jurisdiction  in  If'h.^it 
10  equity  to  enforce  this  section. 


1919,  350,  §  45. 


183  Mass.  513. 


3  Op.  A.  G.  372 


1  Section  49.     If,  in  the  opinion  of  the  commissioner,  any  foreign  Foreign  cor- 

2  association  or  corporation  authorized  to  carry  on  the  business  of  a  co-  ^"sMMons"'^ 

3  operative  bank  in  this  commonwealth  is  transacting  such  business  in  a  iUg'^'lM",  §  1. 

4  manner  hazardous  to  the  public,  or  its  condition  is  such  as  to  render  J|^°'  |^^'  ^  ^■ 

5  further  proceedings  by  it  hazardous  to  the  public,  he  shall  revoke  or  Rj^^l'.  114,  §  29. 

6  suspend  the  authority  given  to  such  association  or  corporation.     If  §§  i.'s,  5.' 

7  it  is  not  authorized  to  carry  on  business  in  this  commonwealth,  he  shall  §§  43, 4"'5.' 

8  notify  it  to  cease  the  transaction  of  business.     This  chapter  shall  not  ^^^^'  ^*°'    *^' 

9  prevent  a  foreign  co-operati\e  bank  from  loaning  money  upon  mortgages 
10  of  real  estate  located  within  this  commonwealth. 

REFERENCE. 
Provisions  applicable  to  aU  banks,  including  co-operative  banks,  Chap.  167. 


CHAPTER     171. 

CREDIT   UNIONS. 


Sect. 

1.  Name.     Definitions. 

2.  Incorporation,  etc. 

3.  Law  applicable  to  credit  unions. 

4.  Use  of  words  "credit  union"  restricted. 

5.  Deposits  and  loans. 

6.  By-laws. 

7.  Approval  by  commissioner. 

8.  Capital. 

9.  Shares  may  be  issued  to  minors,  etc. 

10.  Fiscal  year. 

11.  Meetings. 

12.  Directors.     Committees. 

13.  Election  of  officers.     Powers  and  duties 

of  directors. 

14.  Powers  and  duties  of  supervisory  com- 

mittee. 


Sect. 

15.  Directors  not  to  receive  compensation, 

etc.     Compensation  of  officers. 
IG.  Guaranty  fund. 
17.  Investment  of  funds. 
IS.  Applications  for  loans. 

19.  Purposes  of  loans,  etc. 

20.  Farm  land  mortgages. 

21.  Farm  land  bonds. 

22.  Report  of  supervisory  committee. 

23.  Dividends. 

24.  Lost  pass  books,  etc. 

25.  Report  to  commissioner. 

26.  Expulsion  of  members. 

27.  Dissolution  of  corporation. 


1912 


CREDIT   UNIONS. 


[Chap.  171. 


Name. 
Definitions. 
1909,  419,  §  1. 
1915,  2fi8, 
§§1,20. 
1919,  350, 
§§45,46. 


Section  1.     A  corporation  organized  under  this  chapter  shall  include  1 

in  the  corporate  name  the  words  "credit  union",  to  which  may  be  added  2 

the  word  "  bank".    Other  distinguishing  words  may  be  used.    The  words  3 

"credit  union"  shall  mean  a  corporation  organized  under  this  chapter  4 

or  corresponding  provisions  of  earlier  laws,  and,  unless  the  context  other-  5 

wise  requires,  the  word  "commissioner"  shall  mean  the  commissioner  of  6 

banks.  7 


Incorporation, 

1909.  419,  §  3. 
1915,  268, 
§§  2,  26. 
Op.  A.  G. 
(1918)  99. 
Op.  A.  G. 
(1920)  250. 


Section  2.  Seven  or  more  persons,  resident  in  the  commonwealth,  1 
who  have  associated  themselves  by  a  wTitten  agreement  with  the  inten-  2 
tion  of  forming  a  corporation  for  the  purpose  of  accumulating  and  invest-  3 
ing  the  savings  of  its  members  and  making  loans  to  members  for  provident  4 
purposes,  may,  with  the  consent  of  the  board  of  bank  incorporation,  5 
become  a  corporation  upon  complying  with  the  following  section.  The  6 
board  of  bank  incorporation  may  grant  such  consent  when  satisfied  that  7 
the  proposed  field  of  operation  is  favorable  to  the  success  of  such  corpora-  8 
tion,  and  that  the  standing  of  the  proposed  incorporators  is  such  as  to  9 
give  assurance  that  its  affairs  will  be  administered  in  accordance  with  10 
the  spirit  of  this  chapter.  11 


Law  applicable 

to  credit 

unions. 

1909,  419,  §  5. 

1915,  26S, 

§§  3,  26. 

3  Op,  A.  G,  411. 


Section  3.     Credit  unions  shall  be  organized  under  the  provisions,  1 

so  far  as  applicable,  of  sections  seven  to  eleven,  inclusive,  of  chapter  one  2 

hundred  and  seventy-two,  except  that  the  fee  for  filing  and  recording  3 

the  articles  of  organization,  including  the  issuing  by  the  state  secretary  4 

of  the  certificate  of  incorporation,  shall  be  five  dollars.     So  much  of  5 

chapter  one  hundred  and  sixty-eight  as  relates  to  supervision  by  the  com-  6 

missioner  shall  apply  to  credit  unions  so  far  as  applicable.  7 


Use  of  words 
"credit  union" 
restricted. 
1909,419,  §  4. 
1915,  268, 
§§4,26. 


Section  4.     No  person,  partnership  or  association,  and  no  corpora-  1 

tion,  except  one  incorporated  under  this  chapter  or  corresponding  pro-  2 

visions  of  earlier  laws,  shall  hereafter  transact  business  under  any  name  3 

or  title  containing  the  words  "credit  union".    Section  thirteen  of  chap-  4 

ter  one  hundred  and  sixty-seven  shall  apply  to  all  cases  of  violation  of  5 

this  section  so  far  as  applicable.  6 


Deposits  and 
loans. 

1909,  419,  §  2. 
1915,  268, 
§§  5,  26. 


Section  5.     A  credit  union  may  receive  the  savings  of  its  members  1 

in  payment  for  shares  or  on  deposit;  may  lend  to  its  members  at  reason-  2 

able  rates,  or  invest,  as  hereinafter  provided,  the  funds  so  accumulated;  3 

and  may  undertake  such  other  activities  relating  to  the  purpose  of  the  4 

association  as  its  by-laws  may  authorize.    Section  forty-eight  of  chapter  5 

one  hundred  and  seventy  shall  not  apply  to  credit  unions.  6 


By-laws. 
1909,419,  §  ( 
1915,  268, 
§§  6,  26. 
Op.  A.  G. 
(1918)  99, 


Section  6.     The  by-laws  shall  prescribe  the  name  of  the  corporation,  1 

the  purposes  for  which  it  is  formed,  the  conditions  of  residence  or  occu-  2 

jiation  which  qualify  persons  for  membership,  the  par  value  of  the  shares  3 

of  capital  stock  and  the  maximum  number  of  shares  which  may  be  held  4 

by  any  one  member,  the  conditions  on  which  shares  may  be  paid  in,  5 

transferred  and  withdrawn,  the  conditions  on  which  deposits  may  be  6 

received  and  withdrawn,  the  method  of  receipting  for  money  paid  on  7 

account  of  shares  or  deposited,  the  number  of  directors  and  number  of  8 

members  of  the  credit  committee,  the  duties  of  the  several  officers,  the  9 

fines,  if  any,  to  be  charged  for  failure  to  meet  obligations  to  the  corpo-  10 

ration  punctually,  the  date  of  the  annual  meeting,  the  manner  in  which  11 


CeLVP.    171.]  CREDIT   ITSTIONS.  1913 

12  members  shall  be  notified  of  meetings,  the  number  of  members  which 

13  shall  constitute  a  quorum  at  meetings,  and  such  otlier  regulations  as 

14  may  seem  necessary. 

1  Section  7.     No  credit  union  shall  receive  deposits  or  payments  on  Approval  by 

2  account  of  shares,  or  make  any  loans,  until  its  by-laws  have  been  approved  i9o<nT9?'§'^7. 

3  in  writing  by  the  commissioner,  nor  shall  any  amendments  to  its  by-laws  jlY.'le.*' 

4  become  operative  until  they  have  so  been  approved. 

1  Section  8.     The  capital  of  a  credit  union  shall  be  unlimited  in  amount.  Capital. 

•  •  .  1909  419  5  13 

2  Shares  of  capital  stock  may  be  subscribed  for  and  paid  in  such  manner  isis!  208! 

3  as  the  by-laws  shall  prescribe,  except  that  the  par  value  of  shares  shall 

4  not  exceed  ten  dollars. 

1  Section  9.     Shares  may  be  issued  and  deposits  received  in  the  name  shares  may 

2  of  a  minor,  and  such  shares  and  deposits  may,  in  the  discretion  of  the  nSnm^tetc" 

3  directors,  be  withdrawn  by  such  minor,  or  by  his  parent  or  guardian,  Jg?!;  1^1;  ^  ^*" 

4  and  in  either  case  payments  made  on  such  withdrawals  shall  be  valid  ^^  ^°'  ^"^ 

5  and  shall  release  the  corporation  from  any  and  all  liability  to  the  minor, 

6  parent  or  guardian.    A  minor  under  eighteen  shall  not  have  the  right  to 

7  vote.    If  shares  are  held  or  deposits  made  in  trust,  the  name  and  resi- 

8  dence  of  the  beneficiary  shall  be  disclosed,  and  the  account  shall  be 

9  kept  in  the  name  of  such  holder  as  trustee  for  such  person.    If  no  other 

10  notice  of  the  existence  and  terms  of  such  trust  has  been  given  in  wTiting 

11  to  the  corporation,  such  shares  or  deposits  may,  upon  the  death  of  the 

12  trustee,  be  transferred  to  or  withdrawn  by  the  person  who  was  named 

13  by  the  trustee  as  the  beneficiary  or  by  his  legal  representatives,  and 

14  such  transfer  or  withdrawal  shall  release  the  corporation  from  liability 

15  to  any  other  claimant  upon  such  stock  or  deposit. 

1  Section  10.     The  fiscal  year  of  every  credit  union  shall  end  at  the  Fiscal  year. 

2  close  of  business  on  the  last  business  day  of  October.  lo?!'  tlf  ^  ^' 

l§  12,  26." 

1  Section  11.     The  annual  meeting  of  the  corporation  shall  be  held  at  ?Js^''°^? 

2  such  time  and  place  as  the  by-laws  prescribe,  but  must  be  held  within  1915!  203! 

3  thirty  days  after  the  close  of  the  fiscal  year.    Special  meetings  may  be 

4  called  by  a  majority  of  the  directors  or  of  the  supervisory  committee,  and 

5  shall  be  called  by  the  clerk  upon  wTitten  application  of  ten  or  more  mem- 

6  bers  entitled  to  vote.    Notice  of  all  meetings  of  the  corporation  and  of 

7  all  meetings  of  the  board  of  directors  and  of  committees  shall  be  given 

8  in  the  manner  prescribed  by  the  by-laws.    No  member  shall  be  entitled 

9  to  vote  by  proxy  or  to  have  more  than  one  vote,  and,  after  a  credit  union 

10  has  been  incorporated  one  year,  no  member  thereof  shall  be  entitled  to 

11  vote  until  he  has  been  a  member  for  more  than  three  months. 

12  The  members  at  each  annual  meeting  shall  fix  the  amount  of  the  en- 

13  trance  fee  for  the  ensuing  year,  which  may  be  made  proportional  to  the 

14  number  of  shares  issued  to  a  member,  the  maximum  amount  to  be  loaned 

15  any  one  member,  and,  upon  recommendation  of  the  board  of  directors, 

16  may  declare  dividends  in  accordance  with  section  twenty-three. 

17  At  any  annual  or  special  meeting  the  members  may  review  the  acts  of 

18  the  credit  committee  or  of  the  board  of  directors,  and  may  reverse  any 

19  decision  of  the  credit  committee  or  of  the  board  of  directors  bv  a  three 


1914 


CREDIT   UNIONS. 


[CILA.P.    171. 


fourths  vote  of  the  members  present  and  entitled  to  vote;  provided,  that  20 
such  three  fourths  vote  comprises  a  majority  of  all  the  members  of  the  21 
credit  union.  22 

In  the  event  of  the  death,  resignation  or  removal  from  office  of  the  23 
board  of  directors  or  of  any  member  thereof,  or  of  the  credit  committee  24 
or  of  any  member  thereof,  the  members  of  the  credit  union,  at  a  special  25 
meeting  called  for  the  purpose,  may  elect  other  members  to  fill  the  26 
vacancies  until  the  next  annual  meeting.  27 

At  any  annual  or  special  meeting  the  members  of  a  credit  union  may  28 
amend  the  by-laws  by  a  three  fourths  vote  of  the  members  present  and  29 
entitled  to  vote;  provided,  that  a  copy  of  the  proposed  amendment  has  30 
been  sent  to  each  member  with  the  notice  of  the  meeting.  31 


Directors. 
Committees. 
1909,  419.  §  9. 
1915,  268, 
55  14,  26. 


Section  12.  The  business  and  affairs  of  a  credit  union  shall  be  man-  1 
aged  by  a  board  of  not  less  than  five  directors,  a  credit  committee  of  not  2 
less  than  tliree  members,  and  a  supervisory  committee  of  three  members  3 
to  be  elected  at  the  annual  meeting.  Unless  the  number  of  members  of  4 
the  credit  union  is  less  than  eleven,  no  member  of  said  board  shall  be  a  5 
member  of  either  of  said  committees,  nor  shall  one  person  be  a  member  6 
of  more  than  one  committee,  and  all  the  members  of  said  board  and  of  7 
said  committees,  as  well  as  all  officers  whom  they  may  elect,  shall  be  8 
sworn  to  the  faithfid  performance  of  their  duties  and  shall  hold  their  9 
several  offices  until  others  are  qualified  in  their  stead.  A  record  of  every  10 
such  qualification  shall  be  filed  and  preserved  with  the  records  of  the  11 
corporation.  Members  of  the  supervisory  committee  shall  be  elected  12 
annually  for  one  year.  Directors  and  members  of  the  credit  committee  13 
shall  be  elected  for  not  less  than  one  nor  more  than  three  years,  as  the  14 
by-laws  shall  pro\^ide.  If  the  term  is  more  than  one  year,  they  shall  be  15 
divided  into  classes,  and  an  equal  number,  as  nearly  as  may  be,  elected  16 
each  year.  If  a  director  or  a  member  of  any  of  these  committees  ceases  17 
to  be  a  member  of  the  credit  union,  his  office  shall  thereupon  become  18 
vacant.  19 


Election  of 
officers. 
Powers  and 
duties  of 
directors. 
1909,419,  §  10. 
1915,  268, 
§§  15,  20. 


Section  13.  The  directors,  at  their  first  meeting  after  the  annual 
meeting,  shall  elect  from  their  own  number  a  president,  a  vice  president, 
a  clerk  and  a  treasurer,  who  shall  be  the  executive  officers  of  the  corpora- 
tion, and  who  shall  hold  office  until  their  successors  have  qualified.  The 
offices  of  clerk  and  treasurer  may  be  held  by  the  same  person. 

The  board  of  directors  shall  have  the  general  direction  of  the  affairs 
of  the  corporation,  and  shall  meet  as  often  as  may  be  necessary.  They 
shall  act  upon  all  applications  for  membership  and  upon  the  expulsion  of 
members,  fix  the  amount  of  the  surety  bond  required  of  any  officer  haA'ing 
custody  of  funds,  determine  the  rate  of  interest  on  loans  and  deposits, 
fill  vacancies  in  the  board  of  directors  untO  new  members  have  qualified, 
make  recommendations  to  the  members  of  the  credit  union  relative  to 
the  amount  of  entrance  fee  to  be  charged  new  members,  the  maximum 
amount  to  be  loaned  any  one  member,  the  advisability  of  declaring  a  14 
dividend  and  the  amount  to  be  declared,  the  need  of  amendments  to  the  15 
by-laws,  and  any  other  matters  upon  which,  in  their  opinion,  the  members  16 
should  act  at  any  annual  or  special  meeting.  When  authorized  so  to  do  17 
by  the  members  at  any  annual  meeting  or  at  a  special  meeting  called  for  18 
the  purpose,  the  board  of  directors,  with  the  approval  of  the  commis-  19 
sioner,  may  borrow  money  for  the  purpose  of  lending  to  members.  20 


1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 


Chap.  171.]  credit  unions.  1915 

1  Section  14.     The  supervisory  committee  shall  inspect  from  time  to  Powers  and 

2  time  the  securities,  cash  and  accounts  of  the  corporation  and  shall  keep  sui^rtn^ory 

3  fully  informed  of  its  financial  condition  and  shall  supervise  the  acts  of  ^gog™"!!"' 

4  its  board  of  directors,  credit  committee  and  officers.    At  any  time  the  \^^^  ges 

5  supervisory  committee,  by  a  unanimous  vote,  may  suspend  any  officer  of  §5 1"^,  26.' 

6  the  corporation  or  any  member  of  the  credit  committee  or  of  the  board 

7  of  directors,  and,  by  a  majority  vote,  may  call  a  meeting  of  the  share- 

8  holders  to  consider  any  violation  of  this  chapter  or  of  the  by-laws,  or  any 

9  practice  of  the  corporation  which,  in  the  opinion  of  the  committee,  is 

10  unsafe  or  unauthorized.    Within  seven  days  after  the  suspension  of  any 

1 1  officer,  or  any  member  of  the  credit  committee  or  of  the  board  of  directors, 

12  the  supervisory  committee  shall  cause  notice  to  be  given  of  a  special 

13  meeting  of  the  members  of  the  credit  union  to  take  such  action  rela- 

14  tive  to  such  suspension  as  may  seem  necessary.     The  supervisory  com- 

15  mittee  may  make  temporary  appointments  to  fill  vacancies  caused  by 

16  the  absence,  illness  or  suspension  of  any  officer,  director,  or  member  of 

17  any  committee,  and  shall  fill  any  vacancies  in  its  own  number  until  new 

18  members  have  qualified.     The  board  of  directors  and  the  supervisory 

19  committee,  acting  jointly,  shall  make  appointments  to  fill  vacancies  in 

20  the  credit  committee  until  new  members  of  the  committee  have  qualified. 

1  Section  15.     No  member  of  the  board  of  directors  or  of  either  the  Directors  not 

2  credit  or  supervisory  committee  shall  receive  any  compensation  for  his  Jomp"nsation, 

3  services  as  a  member  of  the  said  board  or  of  such  committee,  nor  shall  pensat?o"of 

4  any  member  of  the  credit  or  supervisory  committee,  directly  or  indirectly,  J^^ljg  « j^ 

5  borrow  from  the  corporation  or  become  surety  for  any  loan  or  advance  J?'^,'-,S' 

6  made  by  it. 

7  No  member  of  the  board  of  directors  shall,  directly  or  indirectly,  borrow 

8  from  the  corporation  or  become  surety  for  any  loan  or  advance  made  by 

9  it,  unless  such  loan  or  advance  has  been  approved  at  a  meeting  of  the 

10  members  of  the  credit  union  by  a  majority  vote  of  those  present,  and 

11  the  notice  of  such  meeting  stated  that  the  question  of  loans  to  directors         / 

12  would  be  considered  at  such  meeting. 

13  The  officers  elected  by  the  board  of  directors  may  receive  such  com- 

14  pensation  as  the  board  shall  authorize. 

1  Section  16.     Before  the  pajinent  of  an  annual  dividend,  there  shall  fj,""""'^ 

2  be  set  apart  as  a  guaranty  fund  twenty  per  cent  of  the  net  income  which  J90|-  |i|'  5  22. 

3  has  accumulated  during  the  fiscal  year,  except  as  hereinafter  provided.  §§  26, 26.' 

4  Said  fund  and  the  investments  thereof  shall  be  held  to  meet  contingencies  i  376.     ' 

5  or  losses  in  its  business.    All  entrance  fees  shall  be  added  at  once  to  the  1920!  2! 

6  guaranty  fund.     Upon  recommendation  of  the  board  of  directors,  the 

7  members  at  any  annual  meeting  may  increase,  and,  whenever  said  fund 

8  equals  or  exceeds  the  amount  of  capital  stock  actually  paid  in,  may  de- 

9  crease,  the  proportion  of  profits  required  by  this  section  to  be  set  apart 

10  as  a  guaranty  fund;   provided,  that,  if  the  corporation  holds  stock  in 

11  other  credit  unions,  the  percentage  of  profits  to  be  set  apart  as  a  guaranty 

12  fund  shall  not  be  decreased  until  the  amount  of  the  fund  equals  or  exceeds 

13  the  amount  of  capital  stock  of  the  corporation  actually  paid  in  and  in 

14  addition  thereto  the  amount  actually  paid  for  the  shares  of  stock  in  such 

15  credit  unions. 

1  Section  17.     The  capital,  deposits  and  surplus  funds  of  a  credit  investment 

2  imion  shall  be  invested  in  loans  to  members,  with  the  approval  of  the  i9oy,"4i9,  §  is. 


1916 


CREDIT    UNIONS. 


[Chap.  171. 


1914,  437, 
§U.2. 

1915,  268, 
§§11.  2U. 
191S.  257, 
§370. 

1919.  5. 

1920,  2. 


Applications 
for  loans. 
1909,419,  §11. 
1915,268, 
§§  17.  26. 
Op.  A.  G. 
(1917)  33. 


credit  committee  as  provided  in  the  following  section;  and  any  capital,  .3 

deposits  or  surplus  funds  in  excess  of  the  amount  for  which  loans  shall  4 

be  approved  by  the  credit  committee  may  be  deposited  in  savings  banks  5 

or  trust  companies  incorporated  under  the  laws  of  the  commonwealth,  6 

or  in  national  banks  located  therein,  or  may  be  invested  in  the  bonds  7 

of  any  other  credit  union,  or  in  any  securities  which  are  at  the  time  8 

of  their  purchase  legal  investments  for  savings  banks  in  the  common-  9 

wealth,  or,  with  the  approval  of  the  commissioner,  may  be  deposited  in  10 

other  credit  unions  or  may  be  in^'ested  in  the  shares  of  other  credit  11 

unions  or  co-operative  banks  incorporated  in  the  commonwealth;  pro-  12 

vided,  that  the  total  amount  invested  in  the  shares  of  other  credit  unions  13 

or  co-operative  banks  shall  not  exceed  thirty  per  cent  of  the  capital  14 

and  surplus,  and  that  not  more  than  twenty  per  cent  shall  be  invested  15 

in  the  shares  of  other  credit  unions,  nor  more  than  twenty  per  cent  in  16 

co-operative  bank  shares.  17 

Section  IS.     The  credit  committee  shall  hold  meetings,  of  which  1 

due  notice  shall  be  gi\'en  to  its  members,  to  consider  applications  for  2 

loans,  and  no  loan  shall  be  made  unless  all  members  of  the  committee  3 

who  are  present  when  the  application  is  considered,  and  at  least  two  4 

thirds  of  all  the  members  of  the  committee,  approve  the  loan  and  are  5 

satisfied  that  it  promises  to  benefit  the  borrower.    All  applications  for  6 

loans  shall  be  made  in  writing,  and  shall  state  the  purpose  for  wliich  7 

the  loan  is  desired  and  the  security  offered.  8 


Purposes  of 
loans,  etc. 
1914,  437, 
§§  1,2,4. 
1916,  268, 
§§  18,  26. 
Op.  A.  G. 
(1917)  33. 


Farm  land 

mortgages. 

1914,437, 

§§1.3. 

1915,231, 

§  19;  208, 

§5  IS,  20. 


Section  19.  Loans  upon  the  security  of  first  mortgages  upon  farm  1 
lands  shall  in  no  case  exceed  in  amount  fifty  per  cent  of  the  value  of  the  2 
property  pledged  as  security,  and  shall  be  for  the  following  purposes  3 
only:  (a)  clearing,  draining  or  otherwise  reclaiming  and  permanently  4 
improving  agricultural  lands;  (6)  providing  of  facilities  for  irrigation;  5 
(c)  plantingandearly  care  of  orchards;  {d)  erection  of  silos,  cold  storage  6 
plants,  greenhouses  and  permanent  farm  buildings;  (e)  purchase  of  7 
farms  and  farm  lands  for  personal  occupation  and  management;  (/)  dis-  8 
charge  of  existing  farm  mortgages;  and,  (g)  subject  to  the  approval  of  9 
the  commissioner,  such  other  improvements  of  a  permanent  nature  as,  10 
in  the  opinion  of  the  directors,  tend  to  develop  agricultural  resources.  11 
Mortgages  securing  such  loans  shall  contain  a  provision  for  immediate  12 
foreclosure  if  the  money  lent  is  applied  in  whole  or  in  part  to  purposes  not  13 
hereby  authorized,  or  if,  in  the  opinion  of  the  directors,  it  is  being  spent  14 
unwisely  or  wastefully.  15 

A  credit  union  may,  with  the  approval  of  the  commissioner,  by  vote  of  16 
its  board  of  directors,  issue,  sell  and  trade  in  its  own  collateral  trust  bonds,  17 
which  shall  be  known  and  described  as  farm  land  bonds  and  shall  be  se-  18 
cured  as  hereinafter  provided  by  the  deposit  of  first  mortgage  notes  on  19 
farm  lands  and  the  mortgages  securing  the  same.  In  case  of  failure  of  a  20 
credit  union  to  pay  the  interest  upon  its  bonds  or  the  principal  when  due,  21 
the  bonds  shall  be  an  underlying  lien  on  all  its  assets,  and  the  commis-  22 
sioner  shall  forthwith  take  possession  of  the  assets  and  wind  up  the  23 
affairs  of  the  corporation.  24 

Section  20.     Loans  upon  farm  lands  shall  be  made  only  upon  security  1 

of  first  mortgages.    The  rate  of  interest  upon  such  loans  shall  not  exceed  2 

six  per  cent,  but  an  additional  charge  to  the  borrower  may  be  made,  to  be  3 

applied  to  the  cost  of  administering  the  affairs  of  the  corporation,  which  4 


Chap.  171.]  credit  unions.  1917 

5  shall  not  exceed  one  per  cent  of  the  amount  unpaid  on  the  loan  and  shall  JgJH^'^'  ^^™- 

6  be  paid  in  annual,  semi-annual  or  quarterly  pajTnents  at  the  same  time  i92oi  2- 

7  that  the  interest  is  paid.    The  rate  of  interest  upon  such  loans  for  a  period 

8  longer  than  five  years  shall  not  exceed  the  rate  of  interest  upon  the  bonds 

9  secured  thereby  by  more  than  one  per  cent  annually  upon  the  amount 

10  unpaid  on  the  loan. 

11  Upon  such  loans  for  a  period  longer  than  five  years  amortization  pay- 

12  ments  shall  be  made  in  such  amounts  as  shall  be  stated  in  the  mortgage 

13  note  and  mortgage,  which  shall  be  sufficient  to  pay  the  principal  in  full  at 

14  maturity  and  shall  be  payable  in  equal  annual,  semi-annual  or  quarterly 

15  payments  at  the  same  time  that  the  interest  is  paid.    A  borrower  may  pay 

16  the  amount  of  his  mortgage  loan  or  any  part  thereof  on  any  interest  day 

17  by  surrendering  at  par  and  accrued  interest  bonds  of  the  series  for  which 

18  his  mortgage  is  pledged  as  security. 

1  Section  21.    Farm  land  bonds  in  a  form  approved  by  the  commis-  Farmland 

2  sioner  may  be  issued  by  a  credit  union  by  vote  of  its  board  of  directors  ign.^s?. 

3  whenever  the  corporation  holds  as  mortgagee  farm  land  mortgages  of  a  His, Isi. 

4  term  longer  than  fi\-e  years  in  amount  sufficient  to  secure  such  issue,  f/i^.^fl: 

5  Each  issue  of  bonds  shall  constitute  a  separate  series  and  shall  be  so  des-  l^jf^^^"' 

6  ignated,  the  first  series  being  designated  as  "Series  One  of  Farm  Land  HH'^- 

7  Bonds  of  the  Credit  Union"  and  subsequent  series 

8  accordingly.    No  series  shall  be  issued  for  less  than  an  aggregate  sum  of 

9  ten  thousand  dollars  nor  for  more  than  ninety-five  per  cent  of  the  amount 

10  of  the  mortgages  against  which  it  is  issued.     Bonds  may  be  issued  in 

11  denominations  of  fifty  dollars  or  any  multiple  thereof,  but  no  bond  shall 

12  be  for  a  larger  amount  than  one  thousand  dollars.     Bonds  may  bear 

13  such  rate  of  interest  as  may  be  determined  by  the  directors,  but  not  ex- 

14  ceeding  fi\'e  per  cent  per  annum.    They  shall  be  payable  on  a  date  speci- 

15  fied  and  shall  be  subject  to  call  by  the  corporation  at  two  per  cent  above 

16  par  with  accrued  interest  at  any  interest  period  after  the  date  of  issue,  or 

17  after  a  date  specified  in  the  bond,  after  such  notice  and  advertisement  as 

18  may  be  provided  in  the  by-laws,  or,  if  no  provision  is  made  in  the  by- 

19  laws,  as  shall  be  approved  by  the  commissioner.    Mortgages  pledged  as 

20  collateral  seciuity  for  bonds  of  any  series  shall  be  kept  at  all  times  in  the 

21  possession  and  under  the  control  of  the  corporation,  or,  upon  direction  of 

22  the  commissioner,  shall  be  deposited  with  a  trustee  to  be  appointed  by 

23  the  corporation  with  the  appro\'al  of  the  commissioner,  who  shall  hold  the 

24  mortgage  notes  and  mortgages  for  the  bondholders.     As  the  amortization 

25  pajonents  are  received  and  credited  upon  the  mortgage  notes  so  deposited 

26  as  seciuity,  the  bonds  issued  by  the  corporation  and  secured  thereby  shall 

27  be  called  and  paid,  or  purchased  in  the  open  market  and  retired,  to  the 

28  extent  of  the  pa^iTnents  received,  and  credited  upon  the  mortgage  notes 

29  held  as  security  therefor,  under  rules  and  regulations  adopted  by  the  cor- 

30  poration  with  the  approval  of  the  commissioner,  or  the  payments  so  re- 

31  ceived  may  be  deposited  by  the  corporation,  or,  if  a  trustee  has  been  ap- 

32  pointed,  shall  be  paid  over  to  the  trustee,  to  be  deposited  at  interest 

33  as  an  amortization  fund  to  meet  the  payment  of  the  notes  at  maturity. 

34  Only  mortgages  for  a  period  longer  than  five  years  shall  be  pledged  as 

35  collateral  for  farm  land  bonds. 

1  Section  22.     Immediately  before  a  meeting  of  the  directors  called  ^™^'s°1.y 

2  to  consider  the  recommendation  of  a  dividend,  the  supervisory  com-  Jgoo^iYg'^j  20 

3  mittee  shall  make  a  thorough  audit  of  the  receipts,  disbursements,  1915!  268] 

»  f    >  '  §§  21. 26. 


1918 


CREDIT  tTNIONS. 


[Chap.  171. 


income,  assets  and  liabilities  of  the  corporation  for  the  fiscal  year,  and  4 

shall  make  a  full  report  thereon  to  the  directors.     Said  report  shall  be  5 

read  at  the  annual  meeting  and  shall  be  filed  and  preserved  with  the  6 

records  of  the  corporation.  7 


Dividends. 
1909.  419,  §  21. 
1915.  21)8. 
§§  22,  26. 


Section  23.  At  the  annual  meeting  a  dividend  may  be  declared  1 
from  income  which  has  actually  been  collected  during  the  fiscal  year  2 
next  preceding,  and  which  remains  after  the  deduction  of  all  expenses,  3 
losses,  interest  on  deposits,  and  the  amount  required  to  be  set  apart  as  4 
a  guaranty  fund,  or  such  dividend  may  be  declared  in  whole  or  in  part  5 
from  undivided  earnings  of  preceding  years,  not  to  exceed  twenty  per  6 
cent  thereof  in  any  one  year,  provided  such  earnings  are  a  part  of  the  7 
surplus  of  the  corporation  in  excess  of  all  requirements  of  the  guaranty  8 
fund.  9 

Such  dividends  shall  be  paid  on  all  fully  paid  shares  outstanding  at  10 
the  close  of  the  fiscal  year,  but  shares  which  become  fully  paid  during  11 
the  year  shall  be  entitled  only  to  a  proportional  part  of  said  dividend,  12 
calculated  from  the  first  day  of  the  month  following  such  payment  in  13 
full.  Dividends  due  to  a  member  shall  be  paid  to  him  in  cash  or  cred-  14 
ited  to  the  account  of  partly  paid  shares  for  which  he  has  subscribed.        15 


Lost  pass 
books,  etc. 
1917,33. 


Section  24.     Section  twenty  of  chapter  one  hundred  and  sixty-seven     1 
shall  apply  to  the  pass  books  and  certificates  of  shares  of  credit  unions.     2 


Report  to 
commissioner. 
1909,  419,  §  24. 
1915,268, 
§§  23,  26. 


Section  25.     Within  twenty  days  after  the  last   business  day  of  1 

October  in  each  year,  every  credit  union  shall  make  to  the  commissioner  2 

a  report  in  such  form  as  he  may  prescribe,  signed  by  the  president,  3 

treasurer  and  a  majority  of  the  supervisory  committee,  who  shall  make  4 

oath  that  the  report  is  correct  according  to  their  best  knowledge  and  5 

belief.     Any  credit  union  neglecting  to  make  the  said  report  within  6 

the  time  herein  prescribed  shall  forfeit  to  the  commonwealth  fi\'e  dollars  7 

for  each  day  during  which  such  neglect  continues.  8 


Expulsion  of 
members. 
1909,419, 
§§  18,  19. 
1915,268, 
§§  24,  26. 


Section  26.  The  board  of  directors  may  expel  from  a  credit  union  1 
any  member  who  has  not  carried  out  his  engagements  with  the  credit  2 
union,  or  who  has  been  convicted  of  a  criminal  offence,  or  who  neglects  3 
or  refuses  to  comply  with  the  provisions  of  this  chapter  or  of  the  by-  4 
laws,  or  whose  private  life  is  a  source  of  scandal,  or  who  habitually  5 
neglects  to  pay  his  debts,  or  who  becomes  insolvent  or  bankrupt,  or  6 
who  has  deceived  the  corporation  or  any  committee  thereof  with  regard  7 
to  the  use  of  borrowed  money;  but  no  member  shall  so  be  expelled  8 
until  he  has  been  informed  in  writing  of  the  charges  against  him,  and  9 
an  opportunity  has  been  given  him,  after  reasonable  notice,  to  be  heard  10 
thereon.  11 

The  amounts  paid  in  on  shares  or  deposited  by  members  who  have  12 
withdrawn  or  have  been  expelled  shall  be  paid  to  them,  in  the  order  13 
of  withdrawal  or  expulsion,  but  only  as  funds  therefor  become  available  14 
and  after  deducting  any  amounts  due  from  such  members  to  the  credit  15 
union.  Such  expulsion  shall  not  operate  to  relieve  a  member  from  16 
any  remaining  liability  to  the  credit  union.  17 


Dissolution  of 
corporation. 
1009,419,  §  23. 


Section  27.     At  any  meeting  specially  called  for  the  purpose  the     1 
members,   upon  recommendation  of  not  less  than  two  thirds  of  the     2 


Chap. 


TRUST    COMPANIES. 


1919 


3  board  of  directors,  may  dissolve  the  corporation  by  the  vote  of  two  1915,268, 

4  thirds  of  the  members  of  the  credit  union  entitled  to  vote.    A  committee 

5  of  three  shall  thereupon  be  elected  to  liquidate  the  assets  of  the  cor- 

6  poration  under  the  direction  of  the  commissioner,  and  each  share  of 

7  the  capital  stock,  according  to  the  amount  paid  thereon,  shall  be  en- 

8  titled  to  its  proportional  part  of  the  assets  in  liquidation  after  all 

9  deposits  and  debts  have  been  paid. 


REFERENCE. 
Exemption  of  credit  unions  and  their  stock  from  taxation,  Chap.  59,  §  5,  cl.  15. 


CHAPTER     172 

TRUST  COMPANIES. 


Sect. 

general  provisions. 

1.  Definitions. 

2.  Corporations  subject  to  this  chapter. 

3.  Adoption  of  chapter. 

4.  Use   of   words   "Trust   Company"    as 

name. 

5.  Limit  of  time  for  organization. 

INCORPORATION   UNDER   GENERAL    LAW. 

6.  Who  may  incorporate. 

7.  Agreement  of  association. 

8.  Notice  of  intention  to  form  trust  com- 

pany. 

9.  First  meeting. 

10.  Certificates  of  organization  and  incor- 

poration. 

11.  Certificate  permitting  business. 

OFFICERS    AND    BY-LAWS. 

12.  Officers. 

13.  Choice  of  officers. 

14.  Directors. 

15.  By-laws.     Quorum. 

16.  Certain  fees,  etc.,  to  officers,  employees 

and  attorneys  prohibited. 

17.  Penalty. 

STOCK   AND    STOCKHOLDERS. 

18.  Capital  stock;   amount,  issue,  increase. 

19.  Books  open  for  inspection. 

20.  Stockholders  to  elect  examining  com- 

mittee. 

21.  Committee  to  examine  corporation. 

22.  Report. 

23.  Further  examination. 

24.  Liability  of  stockholders. 

25.  Enforcement  of  liability. 

PUBLIC    SUPERVISION. 

26.  Returns  to  commissioner. 

27.  Examination  by  commissioner. 


Sect. 

28.  Audit  by  commissioner. 

29.  Report  of  audit. 

30.  Assistance  in  making  audit. 


POWERS. 

31.  Deposits. 

32.  Time  deposits. 

33.  Investment  of  funds. 

34.  Loans  on  farm  property,  etc. 

35.  Agent  to  buy,  etc. 

36.  May  accept  drafts  and  issue  letters  of 

credit. 

37.  May  accept  or  rediscount  certain  drafts, 

etc. 

38.  May  act  as  agent,  trustee,  etc. 

39.  Loans  on  shares  of  capital  stock,  etc. 

40.  Liabilities  of  any  one  person  to  corpora- 

tion limited. 

41.  May  hold  real  estate  suitable   for  ita 

business. 

42.  Real  estate  held  by  corporation  which 

is  successor  to  national  bank. 

43.  Holding  of  stock  in  other  trust  company 

limited. 

44.  Consohdation  of  trust  companies  regu- 

lated. 

45.  Branch  office. 

46.  Office  of  merged  company  maintained 

as  branch  office. 

47.  Establishment  of  foreign  branches. 

48.  Additional  powers,  if   member  of  fed- 

eral reserve  bank. 


trust  DEPARTMENT. 

49.  Trust  department. 

50.  Deposit  by  authority  of  court,  etc. 

51.  Investment  of  such  funds. 

52.  Appointment  as  trustee,  executor,  etc. 

53.  Investment  of  funds  held  as  executor, 

etc. 


1920 


TRUST   COMP.VNIES. 


[Ch.\p.  172. 


Sect. 

54.  Trust    funds    to    be    kept    as    special 

deposit. 

55.  Capital  stock  as  security. 

56.  Not   to   exercise   powers,   etc.,   unless 

authorized. 

57.  Signing  of  returns,  etc.     Examination 

of  officers. 

58.  Surety  on  bonds. 

59.  Disposition  of  trust  funds,  etc. 

SAVINGS    DEPARTMENT. 

60.  Sa-i-ings  department.    Investment  com- 

mittee. 

61.  Investments  of  deposits  in  savings  de- 

partment. 

62.  Such  deposits  to  be  kept  separate. 

63.  Capital  stock  as  security  for  such  de- 

posits. 

64.  Guaranty  fund  in  sa\-ings  department. 

65.  Income. 

66.  Notice  of  intention  to  withdraw  such 

deposits. 

67.  Deposits  may  go  on  interest  monthly. 


Sect. 

68.  PajTnent  of  diWdends  to  be  authorized 

by  directors  after  examination  by  in- 
vestment committee. 

69.  Interest. 

70.  Pass  books  to  be  verified. 

71.  No  officer,  etc.,  to  borrow  funds  of  sav- 

ings department  or  become  surety. 

72.  Trust  companies,  etc.,  not  to  receive 

brokerage,  etc.,  on  account  of  loan 
by  sa'vings  department. 

RESERVES    AND    GUARANTY    FUNDS. 

73.  Reseri'e. 

74.  Composition  of  reserve. 

75.  Corporation  may  act  as  reserve  agent. 

76.  Proceedings  if  reser\-e  less  than  required. 

77.  Trust  guaranty  fund. 

78.  Trust  guaranty  fund  pledged,  etc. 

79.  Trust  guaranty  fund  not  to  be  trans- 

ferred, etc. 

80.  Guaranty  fund. 

81.  Reserve    requirements,    if    member    of 

federal  reserve  bank. 


GENERAL  PROVISIONS. 

m9°3M)I°§  46.      Section  1.     Whenever  used  in  this  chapter,  unless  the  context  other- 
4  Op.  A.  G.  190.  -jvise  requires,  the  words  "trust  company  "  or  "  such  corporation  "  mean  a 
trust  company  incorporated  as  such  in  the  commonwealth,  and  the  "  com- 
missioner" means  the  commissioner  of  banks. 


Corporations 
subject  to  this 
chapter. 
1888,413,  §  1. 
1890.  315,  §  2. 
1899,  348,  §  1. 
R.  L.  116,  §  1 
165  Mass.  384. 


Section  2.  All  trust  companies  shall  be  subject  to  tliis  chapter;  ex-  1 
cept  that  any  such  corporation  chartered  prior  to  IMay  twentj'-eighth,  2 
eighteen  hundred  and  eighty-eight,  shall  not  be  subject,  in  the  perform-  3 
ance  of  its  duties  as  trustee,  to  any  pro^nsion  of  section  fif ty-f om*  wliich  4 
is  inconsistent  with  its  charter  and  shall  be  subject  to  the  following  pro-  5 
Nisions,  or  anj'  of  them,  only  if,  and  according  as,  it  adopts  them  under  6 
section  three,  or  has  adopted  corresponding  provisions  of  earlier  laws:  7 
sections  twelve  to  fifteen,  inclusive,  eighteen,  nineteen,  twentj'-four  to  S 
twenty-six,  inclusive,  so  much  of  section  twenty-seven  as  does  not  apply  9 
to  corporations  exercising  the  powers  conferred  by  section  fifty-two,  sec-  10 
tions  thirty-one,  thirty-tliree,  thirty-eight  to  forty-one,  inclusive,  fifty,  11 
fifty-one,  fifty-nine  and  seventy-seven  to  eighty,  inclusive.  12 


Adoption  o( 
chapter. 
1890,  315,  f  2. 
R.  L.  116,  5  2. 


Section  3.  A  trust  company  chartered  before  INIay  twenty^ighth, 
eighteen  hundred  and  eighty-eight,  transacting  business  in  the  common- 
wealth may  adopt  as  a  part  of  its  charter  this  chapter,  or  any  provision 
thereof  which  under  the  preceding  section  it  may  adopt,  by  a  majority 
vote  of  the  stock  represented  at  a  special  meeting  called  for  the  purpose 
and  by  filing,  within  ten  days  from  the  date  of  such  meeting,  with  the 
state  secretarj'  and  with  the  commissioner  a  certificate  sworn  to  by  the 
clerk  of  such  corporation  and  stating  such  adoption. 


Use  of  words 
"Trust  Com- 


Section  4.     No  person  or  association  and  no  bank  or  corporation,  ex- 

imw."^""'  cept  trust  companies,  shall  use  in  the  name  or  title  under  which  his  or 

fgog'  49i'  1 1     ^^^  business  is  transacted  the  words  "  Trust  Company  "  even  though  said 

words  may  be  separated  in  such  name  or  title  by  one  or  more  other  words. 


ClIAP.    172.]  TRUST  COMP.USriES.  1921 

5  or  advertise  or  put  forth  a  sign  as  a  trust  company  or  in  any  way  solicit 

6  or  receive  deposits  as  such.     Whoever  violates  this  section  shall  forfeit 

7  one  hundred  dollars  for  each  day  during  which  such  violation  continues. 

8  But  this  section  shall  not  prohibit  an  insurance  company  authorized 

9  prior  to  October  first,  eighteen  hundred  and  ninety-nine,  to  do  business 

10  in  the  commonwealth  nor  a  company  authorized  prior  to  said  date  to 

11  transact  a  foreign  mortgage  business  in  the  commonwealth  from  using 

12  the  words  "Trust  Company"  as  a  part  of  its  corporate  name. 

1  Section  5.     A  trust  company  shall  organize  and  commence  business  Limit  of  time 

2  within  two  years  from  the  date  of  its  incorporation,  otherwise  its  charter  zation^""" 

3  shall  become  void.  i893,  ih,  §  i.  r.  l.  iie,  i-i. 

INCORPORATION  UNDER  GENERAL  LAW. 

1  Section  6.    Fifteen  or  more  persons  who  associate  themselves  by  a  who  may 

2  written  agreement  for  the  purpose  of  forming  a  trust  company  may,  i9M?374,'§  i. 

3  upon  compliance  with  sections  six  to  eleven,  inclusive,  become  a  corpo- 

4  ration,  with  all  the  powers  and  privileges  and  subject  to  all  the  duties, 

5  restrictions  and  liabilities  set  forth  in  all  general  laws  relating  to  such 

6  corporations. 


1  Section  7.     Said   agreement   shall    set   forth   that   the   subscribers  Agreement  of 

2  thereto  associate  themselves  with  the  intention  of  forming  a  corpora-  igoT.'sT™?  2. 

3  tion,  and  shall  specifically  state  — 

4  First,  The  name  by  which  the  corporation  shall  be  known. 

5  Second,  The  purpose  for  which  it  is  formed. 

6  Third,  The  city  or  town,  which  shall  be  within  the  commonwealth, 

7  where  its  business  is  to  be  transacted. 

8  Fourth,  The  amount  of  its  capital  stock,  and  the  number  of  shares 

9  into  which  it  is  to  be  divided. 

10  Each  associate  shall  subscribe  to  the  articles  his  name,  residence,  post 

1 1  office  address  and  the  number  of  shares  of  stock  which  he  agrees  to  take. 

1  Section  8.     A  notice  of  the  intention  of  the  subscribers  to  form  such  Notice  of 

2  a  trust  company  shall  be  given  to  the  board  of  bank  incorporation.^        Srm  t?"s'° 

3  A  notice  in  such  form  as  said  board  shall  approve  shall  be  published  at  5904^''3"74, 5  3 

4  least  once  a  week,  for  three  successive  weeks,  in  one  or  more  newspapers  J^[Jg'  1"^'  I  *■ 

5  designated  by  said  board,  and  published  in  the  city  or  town  in  which  w^;  491!  §  2 

6  it  is  proposed  to  establish  the  company.     Such  notice  shall  specify  the 

7  names  of  the  proposed  incorporators,  the  name  of  the  corporation  and 

8  the  location  of  the  same,  as  set  forth  in  the  above  mentioned  agreement 

9  of  association.     Within  thirty  days  after  the  first  publication  of  said 

10  notice  the  subscribers  to  said  agreement  shall  apply  to  said  board  for  a 

11  certificate  that  public  convenience  and  advantage  will  be  promoted  by 

12  the  establishment  of  such  trust  company.     If  the  board  refuses  to  issue 

13  such  certificate,  no  further  proceedings  shall  be  had,  but  the  application 

14  may  be  renewed  after  one  year  from  the  date  of  such  refusal,  without 

15  further  notice  or  publication  unless  the  board  shall  order  it. 

1  Section  9.     The  first  meeting  of  the  subscribers  to  the  agreement  of  ^^J^'  SvT's'f 

2  association  shall  be  called  by  a  notice  signed  either  by  that  subscriber 

3  to  the  agreement  who  is  designated  therein  for  the  purpose,  or  by  a  ma- 

4  jority  of  the  subscribers;  and  such  notice  shall  state  the  time,  place  and 


1922  TRUST  COMP.\NIES.  [Ch.\p.   172. 

purposes  of  the  meeting.  A  copy  of  the  notice  shall,  seven  clays  at  least  5 
before  the  day  appointed  for  the  meeting,  be  given  to  each  subscriber  6 
or  left  at  his  residence  or  usual  place  of  business,  or  deposited  in  the  post  7 
office,  postage  prepaid,  and  addressed  to  him  at  his  residence  or  usual  8 
place  of  business,  and  another  copy  thereof  and  an  affidavit  of  one  of  9 
the  signers  that  the  notice  has  been  duly  served  shall  be  recorded  with  10 
the  records  of  the  corporation.  If  all  the  incorporators  shall  in  ■writing,  1 1 
endorsed  upon  the  agreement  of  association,  waive  such  notice  and  fix  12 
the  time  and  place  of  the  meeting,  no  notice  shall  be  required.  The  1.3 
subscribers  to  the  agreement  of  association  shall  hold  the  franchise  until  14 
the  organization  has  been  completed.  At  such  first  meeting,  or  at  any  15 
adjom-nment  thereof,  the  incorporators  shall  organize  by  the  choice  by  16 
ballot  of  a  temporary  clerk,  by  the  adoption  of  by-laws  and  by  the  elec-  17 
tion  in  such  manner  as  the  by-laws  may  determine,  of  directors,  a  presi-  1<S 
dent,  a  clerk,  and  such  other  officers  as  the  by-laws  may  prescribe.  All  19 
the  officers  so  elected  shall  be  sworn  to  the  faithful  performance  of  their  20 
duties.  The  temporary  clerk  shall  make  and  attest  a  record  of  the  pro-  21 
ceedings  until  the  clerk  has  been  chosen  and  sworn,  including  a  record  of  22 
such  choice  and  qualification.  23 

org?Szlti?n°'        Section  10.    The  president,  and  a  majority  of  the  directors  elected     1 
and  incorpo-      at  such  first  meetinsT,  shall  make,  sign  and  make  oath  to,  articles  in    2 

ration.  ,        ,.  •  i>        ,  '        o 

1904, 374,  §  5.    duplicate,  setting  forth  —  3 

§"§i.'3, 5.'  (a)  A  true  copy  of  the  agreement  of  association,  the  names  of  the  sub-    4 

1919!  35o'  §  46.  scribers  thereto,  and  the  name,  residence  and  post  office  address  of  each    5 

1920,598.17.    of  the  oSicers  of  the  company;  _  6 

(b)  The  date  of  the  first  meeting  and  the  successive  adjournments    7 

thereof,  if  any.  8 

One  of  such  certificates  shall  be  submitted  to  the  commissioner,  and     9 

the  other,  together  with  the  recortls  of  the  proposed  corporation,  to  10 

the  commissioner  of  corporations  and  taxation,  who  shall  examine  the  11 

same,  and  who  may  require  such  amendment  thereof  or  such  additional  12 

information  as  he  may  consider  necessary.    If  he  finds  that  the  articles  13 

conform  to  the  four  preceding  sections  relative  to  the  organization  of  the  14 

corporation  and  tliat  section  eight  has  been  complied  with,  he  shall  so  15 

certify  and  endorse  his  approval  thereon.    Thereupon  the  articles  shall  16 

be  filed  in  the  office  of  the  state  secretary,  who,  upon  pajTuent  of  a  fee  17 

equal  to  one  twentieth  of  one  per  cent  of  the  capital  stock  of  said  cor-  18 

poration  as  set  forth  in  said  articles,  shall  cause  the  same,  with  the  en-  19 

dorsement  thereon,  to  be  recorded,  and  shall  thereupon  issue  a  certificate  20 

of  incorporation  in  the  following  form:  21 

Commonwealth  of  Massachusetts. 

Be  it  known  that  whereas  (the  names  of  the  subscribers  to  the  agreement 
of  association)  have  associated  themselves  with  the  intention  of  forming  a  cor- 
poration under  the  name  of  (the  name  of  the  corporation),  for  the  purpose  (the 
purpose  declared  in  the  agreement  of  association),  with  a  capital  stock  of  (the 
amount  fixed  in  the  agreement  of  association),  and  have  complied  with  the 
statutes  of  the  commonwealth  in  such  case  made  and  provided,  as  appears  from 
the  articles  of  organization  of  said  corporation,  duly  approved  by  the  commis- 
sioner of  corporations  and  taxation  and  recorded  in  this  office:  Now,  therefore,  I 
(the  name  of  the  state  secretary),  secretary  of  the  commonwealth  of  Massachu- 
setts, do  hereby  certify  that  said  (the  names  of  the  subscribers  to  the  agreement 
of  association),  their  associates  and  successors,  are  legally  organized  and  estab- 
lished as,  and  are  hereby  made,  an  existing  corporation  under  the  name  of  (name 


Chap.  172.]  trust  companies.  1923 

of  the  corporation),  with  the  powers,  rights  and  pri\'ileges,  and  subject  to  the 
limitations,  duties  and  restrictions,  which  by  law  appertain  thereto. 

Witness  my  official  signature  hereinito  subscribed,  and  the  great  seal  of  the 
commonwealth  of  Massachusetts  hereunto  affixed,  this  day  of 

in  the  year  (the  date  of  the  filing  of  the  articles  of  organization). 

22      The  state  secretary  shall  sign  the  certificate  of  incorporation  and  cause 
2.3  the  great  seal  of  the  commonwealth  to  be  thereto  affixed,  and  such  cer- 

24  tificate  shall  have  the  force  and  effect  of  a  special  charter.    The  existence 

25  of  every  corporation  not  created  by  special  law  shall  begin  upon  the 

26  filing  of  the  articles  of  organization  in  the  office  of  the  state  secretary. 

27  He  shall  also  cause  a  record  of  the  certificate  of  incorporation  to  be 

28  made,  and  such  certificate,  or  such  record,  or  a  certified  copy  thereof, 

29  shall  be  conclusive  evidence  of  the  existence  of  such  corporation. 

1  Section  11.     When  the  whole  capital  stock  has  been  issued,  a  com-  Certificate 

2  plete  list  of  the  stockholders,  with  the  name,  residence  and  post  office  bushwM^^ 

3  address  of  each,  and  the  number  of  shares  held  by  each,  shall  be  filed  n^l',  ut]  §  l[ 

4  with  the  board  of  bank  incorporation,  which  list  shall  be  verified  by  the  \?)qI\  Hf  |  4- 

5  two  principal  officers  of  the  corporation.    Upon  receipt  of  such  statement  }^°*'  f^°'  |  *■ 

6  said  board  shall  cause  an  examination  to  be  made,  and  if,  after  such  ex-  i^is.  ^^0',  §  47. 

7  amination,  it  appears  that  the  whole  capital  stock  has  been  paid  in  in 

8  cash,  and  that  all  requirements  of  law  have  been  complied  with,  said 

9  board  shall  issue  a  certificate  authorizing  such  corporation  to  begin  the 

10  transaction  of  business.    It  shall  be  unlawful  for  any  such  corporation  to 

1 1  begin  the  transaction  of  business  until  such  a  certificate  has  been  granted. 

OFFICERS   AND   BY-LAWS. 

1  Section  12.     The  officers  of  such  corporation  shall  be  a  president,  PJlSTio 

2  clerk  or  secretary,  a  board  of  not  less  than  seven  directors,  a  treasurer  or  iss"'.  soi!  §  2. 

3  actuary  or  both,  and  such  other  officers  as  may  be  prescribed  by  its  by-    ■•''•■ 

4  laws  and  they  shall  be  sworn  to  the  faithful  performance  of  their  duties. 

1  Section  13.     The  officers  of  such  corporation,  except  the  treasurer,  choice  of 

2  actuary,  and  the  members  of  the  investment  committee,  if  one  is  required  isssTI'is.  §  4. 

3  by  section  sixty,  shall  be  chosen  at  its  annual  meeting.     The  treasurer  fiin.'sV.'^'  *  *' 

4  and  actuary  shall  be  appointed  by  the  directors,  shall  hold  their  respec-  •''■'"°'  ^°^'  ^  ^■ 

5  tive  offices  during  the  pleasure  of  the  board  of  directors  and  shall  gi\-e 

6  bond  to  the  satisfaction  of  said  board  for  the  faithful  performance  of 

7  their  duties.     The  board  of  directors  may  fill,  until  the  next  annual 

8  meeting,  any  vacancies  in  offices  that  may  occur. 

1  Section  14.     No  person  shall  be  a  director  in  any  such  corporation  Dircctora. 

2  unless  he  is  a  stockliolder  holding  not  less  than  ten  shares  of  unpledged  r*l.  110,  |  a!*' 

3  stock  therein.    A  majority  of  the  directors  shall  be  citizens  of  and  resi- 

4  dent  in  the  commonwealth  and  not  more  than  one  third  of  the  directors 

5  shall  be  directors  in  any  other  such  corporation. 

1  Section  15.     The  corporation  may  adopt  by-laws  for  the  proper  man- ny-iaws. 

2  agement  of  its  affairs,  may  establish  regulations  controlling  the  assign-  isss^Ts.  §  s. 

3  ment  and  transfer  of  its  shares  and  may  determine  what  number  of  shares  ^'  ^'  ""'  ^  '"• 

4  shall  be  represented  at  any  meeting  to  constitute  a  quorum.     If  the 

5  quorum  is  not  so  determined,  a  majority  in  interest  of  the  stockliolders 

6  shall  be  a  quorum. 


1924 


TRUST   COMP.YNIES. 


[CiLlP.    172. 


et"!to°offfcers,       Section  16.     Xo  officep,  director,  employee  or  attorney  of  a  trust 
employees  and    company  sliall  be  a  beneficiary  of  or  receive,  directive  or  indirectly,  anv 

attorneys  .'•..  .»  .       ^  ..  .«  *.  .^^ 

prohibited  fee,  commissioo,  gilt  or  other  consideration  lor  or  in  connection  with 
any  business  of  such  corporation.  This  section  shall  not  prohibit  any 
such  officer,  director,  employee  or  attorney  from  receiving  interest  on 
a  deposit  made  by  him  or  his  usual  salary  or  director's  fee  or  a  reason- 
able fee  for  services  rendered  to  such  corporation  or  from  borrowing 
from  such  corporation  in  accordance  with  law. 


ms.'zw,  §2.  Section  17.  Whoever  violates  any  provision  of  the  preceding  sec-  1 
tion  shall  be  punished  by  a  fine  not  exceeding  five  thousand  dollars  or  2 
by  imprisonment  for  not  more  than  one  year,  or  both.  3 


Capital  stock: 
amount,  issue, 
increase. 
1888,  413,  §  2. 
1897,  304,  §  1. 
R.  L.  116,  §  5. 

1904,  374,  §  G. 

1905,  189. 
lOOG,  204, 
§§  1,  3,  5. 
1907,  487. 
1909,  491, 
1913,  20U. 
1916,37. 
1919,  350,  §  46. 
231  Mass.  42. 


:  3. 


STOCK    .\XD    STOCKHOLDERS. 

Section  IS.  The  capital  stock  of  such  corporation  shall  be  not  less  1 
than  two  hundred  thousand  dollars,  except  that  in  a  city  or  town  whose  2 
population  numbers  not  more  than  one  hundred  thousand  the  capital  3 
stock  may  be  not  less  than  one  hundred  thousand  dollars,  divided  into  4 
shares  of  the  par  value  of  one  hundred  dollars  each;  and  except  also  5 
that  in  towns  whose  population  is  not  more  than  ten  thousand  the  6 
capital  stock  may  be  not  less  than  fifty  thousand  dollars  divided  into  7 
shares  of  the  par  value  of  one  hundred  dollars  each;  and  no  business  8 
shall  be  transacted  by  the  corporation  until  the  whole  amount  of  its  9 
capital  stock  is  subscribed  for  and  actually  paid  in.  Any  such  cor-  10 
poration  may,  subject  to  the  approval  of  the  commissioner,  increase  11 
its  capital  stock  in  the  mamier  pro^■ided  by  sections  forty-one  and  forty-  12 
four  of  chapter  one  hundred  and  fifty-six.  No  stock  shall  be  issued  by  13 
any  such  corporation  until  the  par  value  thereof  shall  be  fully  paid  in  in  14 
cash.  Any  such  corporation  may,  subject  to  the  approval  of  the  com-  1.5 
missioner,  decrease  its  capital  stock  in  the  manner  provided  by  said  sec-  16 
tion  forty-one  and  the  first  sentence  of  section  forty-five  of  said  chapter;  17 
provided,  that  the  capital  stock  as  so  reduced  shall  not  be  less  than  the  18 
amount  required  by  this  section.  19 


Section  19.     The  books  of  such  corporation  shall  at  all  reasonable 


Books  open 
for  inspection. 

1888,  413, 1  25.  tlmcs  bc  opcu  for  inspection  to  the  stockholders  and  to  beneficiaries 

K.  ij.  lib,  S  11.  ^  ^  1117  1 

under  any  trust  held  by  such  corporation. 


Stockholders 
to  elect 
examining 
committee. 
1907,319.  §  1. 
1908,  620,  §  14. 


Section  20.  The  stockholders  of  every  such  corporation  shall  elect 
at  their  annual  meeting  an  examining  committee  for  the  ensuing  year 
of  not  less  than  three  stockholders,  of  which  neither  the  president,  vice 
president,  secretary,  treasurer,  actuary  nor  any  member  of  the  execu- 
tive or  finance  committee  of  the  board  of  directors  shall  be  a  member. 


Committee 
to  examine 
corporation. 
1907,  319,  §  2. 
1912,  73.  I  1. 
1919,  350,  §  46. 


Section  21.     At  least  once  in  each  year  the  committee,  without  1 

previous  notice  to  the  officers  or  directors  of  such  corporation,  shall  2 

make  or  cause  to  be  made  a  thorough  examination  of  the  assets  and  3 

liabilities  of  the  corporation,  including  those  of  its  trust  department.  4 

Within  ten  days  after  the  completion  of  such  examination  the  com-  5 

mittee  shall  file  in  the  office  of  the  commissioner  a  written  report  6 

thereof,  sworn  to  by  each  member  of  the  committee  making  the  ex-  7 

amination,  and  a  duplicate  of  the  report,  or  such  part  thereof  as  the  8 


Ch.\P.    172.]  TRUST   COMP.VNIES.  1925 

9  meeting  may  determine,  shall  be  read  to  the  directors  and  to  the  stock- 

10  holders  at  their  meetings  immediately  following  the  completion  of  the 

11  report. 

1  Section  22.     Such  report  shall  be  made  on  forms  furnished  by  the  Heport. 

2  commissioner  and  shall  contain  a  statement  of  the  assets  and  liabilities  luig,'  336!  §  Vs. 

3  of  such  corporation,  including  those  of  its  trust  department,  together 

4  with  such  other  information  as  the  commissioner  requires.     It  shall 

5  also  specify  in  detail  any  loans  or  discounts  which,  in  the  opinion  of 
G  the  committee,  are  worthless  or  of  doubtful  value,  and  any  loans  made 

7  on  collateral  security  which  in  their  opinion  is  of  doubtful  value  or  not 

8  readily  marketable,  together  with  their  reasons  for  so  regarding  them. 

1  Section  23.     If  upon  receipt  of  the  report  or  if  upon  examination  of  ^"a^n^tion 

2  anv  such  corporation  a  further  examination  or  audit  of  its  books  and  J-!?!' ^is.  §  ■*• 

.^   ,  ^  ,  .      .  Ill         1919,  3o0,  §  46. 

3  anairs  appears  necessary,  the  commissioner  may  cause  to  be  made  by 

4  an  expert,  at  the  expense  of  the  corporation,  such  further  examination 

5  or  audit  as  he  considers  necessary. 

1  Section  24.     The  stockholders  of  such  corporation  shall  be  person-  Liability  of 

2  ally  liable,  equally  and  ratably  and  not  one  for  another,  for  all  con-  isst^'s.Tu. 

3  tracts,  debts  and  engagements  of  the  corporation,  to  the  amount  of  fgos.  Ms!  Vi°' 

4  their  stock  therein  at  the  par  value  thereof,  in  addition  to  the  amount  203  Mass.  soi. 
.5  invested  in  such  shares.     Sections  forty-six,  forty-seven  and  forty-nine  216  Mass.  i56. 

6  to  fifty-four,   inclusive,   of  chapter  one  hundred  and  fifty-eight  shall 

7  apply  to  and  regulate  the  enforcement  of  such  liability,  and  receivers  of 

8  insolvent  trust  companies  may,  with  the  approval  of  the  supreme  judi- 

9  cial  court,  enforce  such  liability. 

1  Section  25.     Any  such  corporation  whose   stockholders  are  liable  Enfort-ement 

2  under  the  preceding  section  and  whose  capital  stock  has,  in  the  opin-  is9'2!'327^' 

3  ion  of  the  commissioner,  become  impaired  by  losses  or  otherwise,  shall,  fg^^;  l}^-_  §  ^i- 

4  within  three  months  after  receiving  notice  from  the  commissioner,  pay  f|g'g'  ^^g\-  ^  3 

5  the  deficiency  in  the  capital  stock  by  assessment  upon  the  stockholders  5^^;^/°' 

6  pro  rata  to  the  shares  held  by  each.    If  such  corporation  shall  fail  to  pay 

7  such  deficiency  in  its  capital  stock  for  three  months  after  receiving  such 

8  notice,  the  commissioner  may  apply  to  the  supreme  judicial  court  for  an 

9  injunction;  and  if  a  stockholder  of  such  corporation  neglects  or  refuses, 

10  after  three  months'  notice,  to  pay  the  assessment  as  provided  in  this 

1 1  section,  the  board  of  directors  shall  cau.se  an  amount  of  his  stock  sufficient 

12  to  make  good  his  assessment  to  be  sold  by  public  auction,  after  thirty 

13  days'  notice  given  by  posting  such  notice  in  the  office  of  the  corporation 

14  and  by  publishing  it  in  a  newspaper  of  the  city  or  town  where  the  corpo- 

15  ration  is  located  or  in  a  newspaper  published  nearest  thereto;  and  the 

16  balance,  if  any,  shall  be  retiu-ned  to  such  delinquent  stockholder.    This 

17  section  shall  not  take  away  the  right  of  creditors  to  enforce  the  liabiUty 

18  of  stockholders  in  such  corporations,  as  provided  in  the  preceding  section, 

19  nor  increase  the  general  habiUty  of  such  stockholders. 

PUBLIC   supervision. 

1  Section  26.     Such  corporation  shall  at  such  times  as  the  commis-  Hetumsto 

2  sioner  orders,  but  not  exceeding  five  times  within  any  calendai*  year,  I'sss.Via.  §  20. 

3  and  within  ten  days  after  a  day  designated  in  the  order,  make  a  return  ino!;;  204.'    ^''' 

4  to  the  commissioner,  signed  and  sworn  to  by  its  president  and  secretary,  fuoV,  sVo,  5 1. 


1926 


TRUST   COMPANIES. 


[Chap.  172. 


1908. 520,  §  13.  treasurer  or  actuary  and  not  less  than  four  of  its  board  of  directors,  show-  5 
1919!  35o!  §  4'6.  ing  accurately  the  condition  of  such  corporation  at  the  close  of  business  on  6 
the  day  designated,  and  said  return  shall  specify:  capital  stock;  amount  7 
of  all  money  and  property  in  detail  in  the  possession  or  charge  of  said 
corporation  as  deposits;  amount  of  deposits  payable  on  demand  or 
within  ten  days;  amount  of  trust  guaranty  fund;  trust  funds  and  funds 
for  purposes  of  investment;  number  of  depositors;  investments  in  au- 
thorized loans  of  the  United  States  or  any  of  the  New  England  states, 
counties,  cities  or  towns;  investments  in  bank  stock,  railroad  stock  and 
railroad  bonds,  stating  amount  in  each;  loans  on  notes  of  corporations;  14 
loans  on  notes  of  individuals;  loans  on  mortgages  of  real  estate;  cash  on  15 
hand;  rate,  amomit  and  date  of  dividends  since  last  return;  and  such  16 
other  information  as  the  commissioner  orders.  Such  return  shall  be 
in  the  form  of  a  trial  balance  of  its  books  and  shall  specify  the  different 
kinds  of  its  liabilities  and  assets,  with  the  amount  of  each  kind,  in  ac- 
cordance with  a  blank  form  furnished  by  the  commissioner  and  shall  be  20 
published  by  and  at  the  expense  of  such  corporation  in  a  newspaper  of  21 
the  city  or  town  where  such  corporation  is  located,  at  such  times  and  in  22 
such  manner  as  may  be  directed  by  the  commissioner,  and  in  the  annual  23 
report  of  the  commissioner.  24 


Examination 
by  com- 
missioner. 
1888,  413,  §  26. 
1899,  34S,  §  6. 
R.  L.  116,  §  37. 
1906.  204, 
§§  1,  3.  .5. 

1908,  590,  §  1. 

1909,  491,  §3. 
1919,  350, 

§§  45,  46. 


9 

10 
11 
12 
13 


17 
IS 
19 


Section  27.     The   commissioner   shall   have   access   to   the   vaults,  1 

books  and  papers  of  such  corporation,  and  shall  inspect,  examine  and  2 

inquire  into  its  affairs  and  take  proceedings  in  regard  to  it  in  the  same  3 

manner  and  to  the  same  extent  as  if  it  were  a  savings  bank;   and  may  4 

make,  or  cause  to  be  made  by  an  expert  at  the  expense  of  the  corpo-  5 

ration,  such  further  examination  of  a  corporation  exercising  the  powers  6 

conferred  by  section  fifty-two  as  he  may  consider  necessary,  and  shall,  7 

when  ordered  by  any  court  of  competent  jurisdiction,  make  an  examina-  S 

tion  or  cause  it  to  be  made.  9 


Audit  by 
commissioner. 
1913,  409,  I  1. 
1919,  350,  §  46. 


Section  28.     The  commissioner  may,  when  so  requested  by  vote  of  a  1 

majority  of  the  directors  or  by  the  stockliolders'  examining  committee  2 

of  any  such  corporation,  make  a  thorough  examination  and  audit  of  the  3 

books,  securities,  cash,  assets,  liabihties,  income  and  expenditures  of  the  4 

corporation,  for  such  period  as  the  directors  or  committee  may  request  5 

or  as  the  commissioner  may  prescribe.    The  commissioner  may  avail  him-  6 

self  of  such  assistance  from  the  officers  and  employees  as  he  may  deem  7 

proper.    The  expense  of  the  audit  shall  be  borne  by  the  corporation.  8 


Sr£"'°^             Section  29.     The  person  in  charge  of  the  examination  shall  render  1 

1919'  35o'  1 46  to  the  commissioner  a  report  of  his  findings,  in  such  form  as  the  com-  2 

missioner  may  prescribe,  and  a  copy  thereof  shall  be  furnished  to  the  3 

directors  or  to  the  stockholders'  examining  committee  of  the  corporation  4 

within  ten  days  after  the  original  has  been  submitted  to  the  commis-  5 

sioner,  together  with  a  notice  of  the  amount  of  the  fee  to  be  paid,  wliicli  6 

shall  be  due  and  payable  within  thirty  days  after  the  date  of  the  notice.  7 

Upon  failure  of  any  such  corporation  to  pay  the  required  fee  within  the  8 

time  prescribed  herein  the  commissioner  shall  report  the  facts  to  the  9 

attorney  general,  who  shall  immediately  bring  action  to  recover  it.  10 

niXnTaudrt.        Section  30.     The  commissiouer,  in  order  to  carry  out  the  provisions  of  1 

1919!  350,  §46.  the  two  preceding  sections,  may  employ  such  additional  assistance,  sub-  2 

ject  to  the  approval  of  the  governor  and  council,  as  he  deems  necessary.  3 


ClL-VP.    172.]  TRUST   COMPANIES.  1927 


POWERS. 

1  Section  31.     Such  corporation  may  receive  on  deposit,  storage  or  Deposits. 

2  otherwise,  money,  government  secm-ities,  stocks,  bonds,  coin,  jewelry,  HH]  IH]  |  ?; 

3  plate,  valuable  papers  and  documents,  evidences  of  debt,  and  other  fcii2;  54.®' ^ '^' 

4  property  of  any  kind,  upon  terms  or  conditions  to  be  agreed  upon,  and  i^^*'  ^^^'  5  3. 

5  at  the  request  of  the  depositor  may  collect  and  disburse  the  interest  or 

6  income,  if  any,  upon  said  property  received  on  deposit  and  collect  and 

7  disbiu-se  the  principal  of  such  of  said  property  as  produces  interest  or 

8  income  when  it  becomes  due,  upon  terms  to  be  prescribed  by  the  cor- 

9  poration.    Such  deposits  shall  be  general  deposits,  and  may  be  made  by 

10  corporations  and  persons  acting  indixndually  or  in  any  fiduciary  capacity. 

11  Such  corporation  shall  not  gi\'e  collateral  or  other  seciuity  for  a  deposit 

12  of  money  recei^'cd  under  this  section,  except  that  the  corporation  may 

13  make  such  a  deposit  of  securities  as  may  be  required  by  the  law§  of  the 

14  United  States  or  the  rules  and  regulations  of  the  trustees  of  the  postal 

15  savings  system  as  secm'ity  for  deposits  of  postal  sa^'ings  funds  made 

16  with  such  corporation  and  may  give  such  collateral  or  other  security  for 

17  deposits  of  public  or  other  funds  as  may  be  required  by  any  public  au- 

18  thority  making  such  deposits  or  controlling  the  terms  upon  which  they 

19  may  be  made. 

1  Section  32.     No  such  corporation  shall  allow  a  time  deposit  repre-  Time  deposits. 

2  sented  by  a  certificate  or  WTitten  agreement  to  be  ^^^thdra^^l  before  the  1919I 350",  §  46. 

3  time  specified  therein,  and  where  such  certificate  or  agreement  does  not 

4  specify  any  definite  date  for  withdrawal  no  such  corporation  shall  allow 

5  such  deposit  to  be  TN-ithdra^Ti  without  receiving  WTitten  notice  of  at  least 

6  thirty  days.    Originals  or  duplicates  of  all  agreements  in  reference  to  time 

7  deposits  shall  be  kept  on  file  by  such  corporations  and  submitted  to  the 

8  commissioner  at  his  request.    Any  such  corporation  violating  this  section 

9  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars. 

1  Section  33.     Such  corporation  may,  subject  to  the  limitations  of  the  investment 

2  following  section,  advance  money  or  credits,  whether  capital  or  general  isssl'^s,  §  o. 

3  deposits,  on  real  estate  situated  in  the  commonwealth  and  on  personal  IcI'l;  no;  1 13. 

4  security,  on  terms  to  be  agreed  upon,  and  also  invest  its  money  or  credits,  ^^^'^^  ^~'^'  ^  ^■ 

5  whether  capital  or  general  deposits,  in  the  stocks,  bonds  or  other  evi- 
G  dences  of  indebtedness  of  corporations  or  of  governments,  both  foreign 
7  and  domestic. 

1  Section  34.     No  such  corporation  shall  advance  money  or  credits  Loans  on 

2  upon  notes  secured  by  deed  of  trust  or  by  mortgage  upon  farms  or  agri-  etc"'  '"''"'"*''• 

3  cultural  or  unimproved  land  outside  of  the  commonwealth,  except  upon  JUgisJo!  ^ '' 

4  land  situated  in  the  New  England  states  or  the  state  of  New  York,  or  ''•  ^-  !'"•  ^  "• 

5  invest  in  or  make  loans  on  the  bonds  or  other  securities  of  a  company 

6  negotiating  or  dealing  in  such  notes  so  secured  or  in  such  mortgages. 

1  Section  35.     No  such  corporation  shall  as  agent,  buy,  sell  or  negotiate  Agent  to  buy, 

2  securities  or  evidences  of  debt  on  which  such  corporation  may  not  law-  isiio,  .315.  §  1. 

3  fully  advance  money  or  credits,  nor  as  such  agent  buy,  sell  or  negotiate  ^^'  ^'  ^'*''    '^' 

4  evidences  of  debts  secured  exclusively  by  real  estate  under  mortgage 

5  or  deed  of  trust. 


1928 


TRUST   COMPANIES. 


[Chap.  172. 


May  accept 
"drafts  ana 
issue  letters 
of  credit. 
1916,  129.  §  1. 
1919,  350,  §  46. 


Section  36.     Any  such  corporation  may,  subject  to  such  restrictions  1 

as  may  be  imposed  by  the  commissioner,  accept  for  payment  at  a  future  2 

date  drafts  and  bills  of  exchange  drawn  upon  it,  and  issue  letters  of  credit  3 

authorizing  holders  thereof  to  draw  drafts  upon  it,  or  its  correspondents,  4 

at  sight  or  on  time;  provided,  that  such  acceptances  or  drafts  be  based  5 

upon  actual  values,  but  no  such  corporation  shall  accept  such  bills  or  6 

drafts  to  an  aggregate  amount  exceeding  at  any  one  time  one  half  of  its  7 

paid-up  capital  and  surplus,  except  with  the  approval  of  the  commissioner,  8 

and  in  no  case  to  an  aggregate  amount  in  excess  of  its  capital  and  surplus.  9 


May  accept 
or  rediscount 
certain  drafts, 

1914,  537.  §  3. 


Section  37.  Such  corporation  may  accept  drafts  or  bills  of  exchange 
drawn  upon  it  and  growing  out  of  transactions  involving  the  import  or 
export  of  goods,  having  not  more  than  six  months'  sight  to  run,  but  no 
such  corporation  shall  accept  such  bills  to  an  amount  equal  at  any  time 
in  the  aggregate  to  more  than  one  half  of  its  paid-up  capital  stock  and 
surplus.  Such  corporation  may  rediscount  notes,  drafts  and  bills  of 
exchange  arising  out  of  actual  commercial  transactions. 


ageut?tru/tee,  SECTION  38.  Such  Corporation  may  act  as  agent  for  the  purpose  of 
1888  413  5 15  issuing,  registering  or  countersigning  the  certificates  of  stock,  bonds  or 
R.  L.  116,  §  32.  other  evidences  of  indebtedness  of  a  corporation,  association,  municipal 
corporation,  state  or  national  government,  on  such  terms  as  may  be 
agreed  upon,  and  may  also  act  as  trustee  or  financial  or  other  agent  for 
a  person,  association,  municipal  corporation  or  government,  and  in  their 
behalf  may  negotiate  loans  and  sell  and  negotiate  the  sale  of  securities, 
and  may  also  act  as  trustee  for  the  bondholders  of  a  corporation,  and  for 
such  purpose  may  receive  transfers  of  real  and  personal  property  upon 
such  terms  as  may  be  agreed  upon. 


1 
2 

3 
4 
5 
6 

7 

8 

9 

10 


Loans  on 
shares  of 
capital  stock, 
etc. 


Section  39.  No  such  corporation  shall  make  a  loan  or  discount  on  the 
security  of  the  shares  of  its  own  capital  stock,  nor  be  the  purchaser  or 
1888.  413,  1 16.  holder  of  such  shares,  unless  such  security  or  purchase  shall  be  necessary 
to  prevent  loss  upon  a  debt  previously  contracted  in  good  faith;  and 
stock  so  purchased  or  acquired  shall,  within  six  months  after  its  pur- 
chase, be  sold  or  disposed  of  at  public  or  private  sale. 


Liabilities  of 
any  one  person 
to  corporation 
limited. 
1888,  413,  §  17. 
1901,  255. 
R.  L.  116,  §34. 
1916,  129.  §  2. 
1917, 172,  §  2. 

2  0p.A.G.  190. 

3  Op.  A.  G.  69. 

4  Op.  A.  c;.  8. 
Op.  A.G. 

(1918)  52. 


Section  40.  The  total  liabilities  of  a  person,  other  than  cities  or  1 
towns,  including  in  the  liabilities  of  a  firm  the  liabilities  of  its  several  2 
members,  for  money  borrowed  from  and  drafts  drawn  on  any  such  cor-  3 
poration  having  a  capital  stock  of  five  hundred  thousand  dollars  or  more  4 
shall  at  no  time  exceed  one  fifth  part  of  the  surplus  account  and  of  such  5 
amount  of  the  capital  stock  of  such  corporation  as  is  actually  paid  up.  6 
Such  total  liabilities  to  any  such  corporation  having  a  capital  stock  of  less  7 
than  five  hundred  thousand  dollars  shall  at  no  time  exceed  one  fifth  of  8 
such  amount  of  the  capital  stock  of  the  corporation  as  is  actually  paid  9 
up;  but  the  discount  of  bills  of  exchange  drawn  in  good  faith  against  10 
actually  existing  values,  and  the  discount  of  commercial  or  business  paper  1 1 
actually  owned  by  the  person  negotiating  it,  shall  not  be  considered  as  12 
money  borrowed.  The  total  liabilities  to  any  one  such  corporation  of  13 
any  government,  either  foreign  or  domestic,  other  than  the  government  14 
of  the  United  States  of  America  or  of  this  commonwealth,  shall  not  exceed  15 
one  tenth  part  of  the  surplus  account  and  of  such  amount  of  the  capital  Ifi 
stock  of  such  corporation  as  is  actually  paid  up,  and  no  trust  company  17 


Chap.  172.]  trust  comp.vnies.  1929 

18  shall  invest  or  advance  an  aggregate  amount  exceeding  at  any  one 

19  time  twenty  per  cent  of  its  surplus  account  and  paid-up  capital  stock 

20  in  such  securities  and  evidences  of  indebtedness. 

1  Section'  41.     Such  corporation  may  hold  real  estate  unencumbered  es'mi'suftabte 

2  by  mortgage  suitable  for  the  transaction  of  its  business  to  an  amount  in-  (gss "^r's'if ' 

3  eluding  the  cost  of  alterations  and  additions  in  the  nature  of  permanent  i894,'2r4! 

4  fixtures,  not  exceeding  twenty-five  per  cent  of  its  capital  actually  paid  in  1912!  53. ' 

5  and  its  surplus  account,  and  in  no  case  to  exceed  two  hundred  and  fifty  ^^p-*^-    -^^  • 

6  thousand  dollars;   but  this  section  shall  not  require  such  corporation  to 

7  change  an  investment  legally  made  prior  to  April  eighteenth,  eighteen 
S  hundred  and  ninety-four. 

1  Section  42.     Such  corporations  which  succeed  or  have  succeeded  to  Real  estate 

2  the  business  of  national  banks  may  continue  to  hold  the  real  estate  owned  ration  wESTs 

3  by  such  national  banks  and  used  in  the  transaction  of  their  business.       nationaTba°iik. 

1912.  90. 

1  Section  43.     No  trust  company  shall  hold  more  than  ten  per  cent  of  ^J,t'?n  Sther 

2  the  capital  stock  of  any  other  trust  company.  b^ted""'''"'^ 

1914.  504,  §  1.  231  Mass.  42. 

1  Section  44.     No  trust  company  shall  be  merged  in  or  consolidated  ofTr^'fTOm-" 

2  with  another  trust  company  except  under  the  provisions  of  sections  forty-  P^^^Jf^t^^j 

3  two  and  forty-six  of  chapter  one  hundred  and  fifty-six,  which  are  hereby  isi*.  504,  §  2. 

4  made  applicable  to  the  sale  or  exchange  of  all  the  property  and  assets, 

5  including  the  good  will  and  corporate  franchise,  of  a  trust  company. 

1  Section  45.     The  board  of  bank  incorporation  may  authorize  in  Branchoffice. 

2  wTiting  any  such  corporation  to  maintain  not  more  than  one  branch  §§°i",'2.'^''' 

3  office  which  shall  be  in  the  town  where  its  main  office  is  located.  §§°i','3,°5.' 

4  No  such  corporation  shall  maintain  a  branch  office  except  as  pro-  590*5*1°'  ^  ^'' 

5  A-ided  in  this  and  the  two  following  sections,  but  the  restrictions  of  this  J|°^'  *^- 1 1- 

6  section  shall  not  extend  to  branch  offices  authorized  prior  to  April  twenty-  isis!  sso!  §  47. 

9  On    A    C    11 " 

7  ninth,  nineteen  himdred  and  two.  aop.  a.  g.  isi. 

1  Section  46.    Any  office  of  a  trust  company  the  business  of  which  office  of 

2  has  been  taken  over  under  section  forty-four  by  another  trust  company  "a"y  maS^ 

3  located  in  the  same  town,  may  be  maintained  as  a  branch  office  of  such  brlTncli'^ffice. 

4  corporation,  if  in  the  opinion  of  the  commissioner  public  convenience  will  Jg Jg'  3?J'  |  ^g 

5  be  ser^•ed  thereby. 

1  Section  47.     Any  such  corporation  ha-ving  a  capital  and  surplus  of  oUo^ign™^"' 

2  one  million  dollars  or  more  may  file  application  with  the  commissioner,  j^j^^^fy  . , 

3  upon  such  conchtions  and  under  such  regulations  as  may  be  prescribed  isisi  sso',  1 46. 

4  by  him,  for  the  purpose  of  securing  authority  to  establish  branches  in 

5  foreign  countries  or  dependencies  of  the  United  States.    Such  applica- 

6  tion  shall  specify,  in  addition  to  the  name  and  capital  of  the  trust  com- 

7  pany  filing  it,  the  places  where  the  banking  operations  proposed  are 

8  to  be  carried  on  and  the  amount  of  capital  set  aside  for  the  conduct 

9  of  its  foreign  business.    The  commissioner  may  approve  any  such  appli- 

10  cation,  or  reject  it  if,  in  his  judgment,  the  amount  of  capital  proposed  to 

1 1  be  set  aside  for  the  conduct  of  foreign  business  is  inadequate,  or  if  for 

12  other  reasons  the  granting  of  the  application  is  deemed  inexpedient. 


1930 


TRUST  COMPANIES. 


[Ch.\p.  i: 


Every  such  corporation  which  shall  receive  authority  to  establish  foreign  13 
branches  shall  be  required  at  all  times  to  furnish  information  concerning  14 
the  condition  of  such  branches  to  the  commissioner  upon  demand,  and  15 
he  may  order  special  examinations  of  such  foreign  branches  at  such  16 
times  as  he  deems  best.  Every  such  corporation  shall  conduct  the  ac-  17 
counts  of  each  foreign  branch  independently  of  the  accounts  of  other  18 
foreign  branches  established  by  it  and  of  its  home  office,  and  shall  at  the  19 
end  of  each  fiscal  period  transfer  to  its  general  ledger  profit  or  loss  accru-  20 
ing  at  each  branch,  as  a  separate  item.  21 


Additional 
powers,  if  mem- 
ber of  federal 
reserve  hank. 
1914,  537,  §  1. 


Section  48.     A  trust  company  wliich  becomes  a  stockholder  in  a  1 

federal  reserve  bank  within  the  federal  reserve  district  where  such  trust  2 

company  is  situated,  and  while  such  trust  company  continues  as  a  mem-  3 

ber  bank  under  the  United  States  "Federal  Reserve  Act"  approved  4 

December  twenty-third,  nineteen  hundred  and  thirteen,  or  any  acts  in  5 

amendment  thereof,  may  have  and  exercise  any  and  all  of  the  corporate  6 

powers  and  privileges  which  may  be  exercised  by  member  banks  under  7 

said  "Federal  Reserve  Act"  or  any  acts  in  amendment  thereof  or  in  8 

addition  thereto.  9 


Trust  depart- 
ment. 

1S88,  413,  I  7. 
R.  L.  116,  I  24. 


TRUST  DEPARTMENT. 


Section  49.     Every  such  corporation  acting  under  any  provision  of  1 

the  following  section  or  section  fifty-two  shall  have  a  trust  department  2 

in  which  all  business  authorized  by  said  sections  shall  be  kept  separate  3 

and  distinct  from  its  general  business.  4 


Deposit  by 
autnority  of 
court,  etc, 
18SS,  413,  §  7. 
R.  L.  116,  §  16. 
1907,417,  §  1, 
1915,  23,  §  1. 


Section  50.  A  court  of  law  or  equity,  or  a  court  of  probate  and  in- 
solvency of  the  commonwealth,  may  direct  that  money  or  property  under 
its  control,  or  which  may  be  paid  into  court  by  parties  to  any  legal  pro- 
ceedings, or  which  may  be  brought  into  court  by  reason  of  an  order  or 
judgment,  be  deposited  with  such  corporation,  upon  such  terms  and 
subject  to  such  instructions  as  the  court  may  prescribe.  \Mien  money 
so  deposited  has  remained  unclaimed  for  more  than  ten  years,  the  court 
may  upon  motion  of  the  attorney  general  order  and  decree  that  it  shall 
be  paid  over  to  the  state  treasurer  to  be  held  by  him  under  the  terms  of  9 
said  order  or  decree,  and  upon  the  entry  of  such  order  or  decree  the  cor-  10 
poration  shall  pay  over  money  so  deposited  and  specified  in  the  order  to  1 1 
the  state  treasurer,  to  be  held  by  him  as  aforesaid;  and  if  any  person  12 
shall  establish  a  lawful  right  thereto  the  said  treasurer  shall  repay  the  13 
same  to  such  person,  with  interest  at  the  rate  of  three  per  cent  per  annum  14 
from  the  time  when  paid  to  said  treasurer  to  the  time  when  it  is  paid  over  15 
by  him  to  such  person.  Sections  forty-two  and  forty-three  of  chapter  16 
one  hundred  and  sixty-eight  shall  be  applicable  to  trust  companies.  17 
Such  corporation  may  also  hold  money  or  property  in  trust  or  on  deposit  18 
from  executors,  administrators,  assignees,  guardians,  conservators  and  19 
trustees,  upon  such  terms  and  conditions  as  may  be  agreed  upon.  20 


Investment  of 
such  funds. 
1888,  413,  §  7. 
R.  L.  116,  §  17. 
1  Op.  A.  G.  334. 


Section  51.  Money  or  property  received  under  the  preceding  section 
shall  be  loaned  on  or  invested  only  in  the  authorized  loans  of  the  United 
States,  or  any  of  the  New  England  states,  comities,  cities  or  towns  thereof, 
or  of  the  states  of  Illinois,  Iowa,  Michigan,  IMimiesota,  Wisconsin,  or  the 
counties  or  cities  thereof,  or  stocks  of  state  or  national  banks  situated 
within  this  commonwealth,  or  in  the  fii-st  mortgage  bonds  of  a  railroad 
corporation  incorporated  in  any  of  the  New  England  states  whose  road 


Chap.  172.]  trust  companies.  1931 

8  is  located  wholly  or  in  part  in  the  same  and  which  has  earned  and  paid 

9  regular  dividends  on  all  its  issues  of  capital  stock  for  two  years  last  pre- 

10  ceding  such  loan  or  investment,  or  in  the  bonds  of  any  such  railroad  com- 

1 1  pany  unencumbered  by  mortgage,  or  in  first  mortgages  on  real  estate  in 

12  this  commonwealth,  or  in  any  securities  in  which  sa\'ings  banks  may 

13  invest,  or  upon  notes  with  two  sm-eties  of  domestic  manufacturing  cor- 

14  porations  or  of  indiNaduals  with  a  sufficient  pledge  as  collateral  of  any  of 

15  the  aforesaid  securities;   but  all  real  estate  acquired  by  foreclosure  of 

16  mortgage  or  by  le^'y  of  execution  shall  be  sold  at  public  auction  within 

17  two  years  after  such  foreclosure  or  leAy. 

1  Section  52.    Such  corporation  may  be  appointed  executor  of  a  will,  as^frustee,^"* 

2  codicil  or  -wTiting  testamentary,  administrator  with  the  will  annexed,  jg|™4°3^*"'- 

3  administrator  of  the  estate  of  any  person,  receiver,  assignee,  guardian,  §§  7,'8.  ' 

4  conservator  or  trustee  under  a  will  or  instrument  creating  a  trust  for  §§  i.'2. 

5  the  care  and  management  of  property,  under  the  same  circumstances,  loos.'  iiei  sos! 
G  in  the  same  manner,  and  subject  to  the  same  control  by  the  coiut  hav-  ^^^  ^'''^'''  ^^''" 

7  ing  jurisdiction  of  the  same,  as  a  legally  qualified  individual.     Any  such 

8  appointment  as  guardian  shall  apply  to  the  estate  and  not  to  the  person 

9  of  the  ward.    Such  corporation  shall  not  be  required  to  receive  or  hold 

10  property  or  money  or  assume  or  execute  a  trust  under  this  section  or  of 

1 1  section  fifty  without  its  assent. 

1  Section  53.     Every  such  corporation  maj-  invest  the  funds  or  assets  investment  of 

2  which  it  may  receive  and  hold  under  the  preceding  section  in  the  same  executor,  etc' 

3  way,  to  the  same  extent,  and  under  the  same  restrictions  as  an  indi-  i^i'^sss- 

4  vidual  holding  a  similar  position  may  invest  such  funds  or  assets. 

1  Section  54.     INIoney,   property  or   securities   received,   invested   or  Tmst  funds 

2  loaned  under  the  pro\'isions  of  sections  fifty  to  fifty-two,  inclusive,  shall  specfai  Xpo'it. 

3  be  a  special  deposit  in  such  corporation,  and  the  accomits  thereof  shall  If^T'.'o.^'*' 

4  be  kept  separate.     Such  funds  and  the  investment  or  loans  thereof  J^^^l' no' §  li 

5  shall  be  specially  appropriated  to  the  security  and  paj-ment  of  such 

6  deposits,  shall  not  be  mingled  with  the  investments  of  the  capital  stock 

7  or  other  money  or  property  belonging  to  such  corporation,  or  be  hable 

8  for  the  debts  or  obligations  thereof. 

1  Section  55.     The  capital  stock  of  such  corporations,  ^ith  the  Ha-  Capita!  stock 

2  bilities  of  the  stockholders  thereunder,  shall  be  held  as  security  for  the  isls^isfj  8. 

3  faithful  performance  of  the  duties  undertaken  by  Aurtue  of  sections  fifty  \f^l[  HI]  |  %_ 

4  to  fifty-two,  inclusive,  or  of  any  similar  provision  of  law. 

1  Section  56.     No  such  corporation  shall  commence  to  exercise  the  Not  to  exercise 

2  powers  and  duties  described  in  sections  fifty  to  fifty-two,  inclusive,  Sniesr' "  ° ' 

3  until  it  has  received  written  authority  therefor  from  the  board  of  bank  isflr,°42,^'s  3. 

4  incorporation,  and  said  board  may  grant  or  refuse  such  authority  after  Jf^;  ji^;  I  |o 

5  such  investigation  of  the  affairs  of  the  corporation  as  it  deems  expedient.  J^Jj^'  |{JJ'  |  *■ 

1909,  491,  §  2.  1919,  350,  §  47. 

1  Section  57.     In  all  proceedings  in  the  probate  court  or  elsewhere,  signinKof 

2  connected  with  any  authority  exercised  under  section  fifty  or  fifty-two,  Kx^mina'tion 

3  or  under  any  similar  provisions  of  law,  all  accounts,  returns  and  other  isss.T/l,' § s. 

4  papers  may  be  signed  and  sworn  to,  in  behalf  of  the  corporation,  by  R^^L.iiGllfi. 

5  any  officer  thereof  duly  authorized  by  it,  and  the  answers  and  exami- 


1932 


TRUST  COMPANIES. 


[Chap.  172. 


nations  under  oath  of  said  officer  shall  be  received  as  the  answers  and  6 
examinations  of  the  corporation.  Tlie  court  may  order  and  compel  an  7 
officer  of  such  corporation  to  answer  and  attend  said  examination  in  8 
the  same  manner  as  if  he,  instead  of  the  corporation,  were  a  party  to  9 
the  proceeding.  10 


Surety  on 

bonds. 

1888,  413.  §  ,S. 

1899,  348, 

§§2,4. 

E.  L.  116, 

§§  19,  22. 


Section  58.     No  surety  shall  be  required  upon  the  bonds  filed  by  1 

such  corporation  as  fiduciary  under  section  fifty-two  except  that  the  2 

court  making  an  appointment  under  said  section,  other  than  of  a  trus-  3 

tee,  may,  upon  application  by  an  interested  person,  require  the  corpo-  4 

ration  so  appointed  to  give  such  security,  in  addition  to  that  provided  5 

by  section  fifty-five,  as  the  court  may  consider  proper,  and  upon  fail-  6 

m-e  of  such  corporation  to  give  the  security  required,  may  revoke  such  7 

appointment  and  remore  such  corporation.  8 


trus't7und"  °'        SECTION  59.     A  pcrson  Creating  a  trust  may  direct  whether  money 
1S88  413  5  s     ^^  property  deposited  under  it  shall  be  held  and  invested  separately  or 
R.  l'.  no',  §  23.  invested  in  the  general  trust  fund  of  the  corporation;    and  such  cor- 
poration acting  as  trustee  shall  be  governed  by  directions  contained  in 
the  will  or  instrument  under  which  it  acts. 


Savings 
department. 
Investment 
committee. 
1908,  520,  §  1. 
1920.563,  §  1. 
231  Mass.  367. 


SAVINGS   DEPARTMENT. 

Section  60.  Every  such  corporation  soliciting  or  receiving  deposits  1 
(a)  wliich  may  be  withdrawn  only  on  presentation  of  the  pass  book  or  2 
other  similar  form  of  receipt  which  permits  successive  deposits  or  with-  3 
drawals  to  be  entered  thereon,  or  (b)  which  at  the  option  of  such  cor-  4 
poration  may  be  withdrawn  only  at  the  expiration  of  a  stated  period  5 
after  notice  of  intention  to  withdraw  has  been  given,  or  (c)  in  any  6 
other  way  wliich  might  lead  the  public  to  believe  that  such  deposits  are  7 
received  or  invested  under  the  same  conditions  or  in  the  same  manner  8 
as  deposits  in  savings  banks,  shall  have  a  savings  department  in  which  9 
all  business  relating  to  such  deposits  shall  be  transacted.  Every  such  10 
corporation  subject  to  this  section  shall  have  an  investment  committee  11 
of  not  less  than  three  members,  elected  by  and  from  the  board  of  directors,  12 
and  such  committee  shall  hold  meetings  at  least  once  in  each  month.         13 


Investments 
of  deposits 
in  savings 
department. 
1908,  520,  §  2. 
1918,  67. 
1920,563,  I  1. 

3  Op.  A.  G.  454. 

4  Op.  A.  G.  8. 
Op.  A.  G. 
(1920)  265. 


Such  deposits 
to  be  kept 
separate. 
1908,  520,  5  3. 
220  Mass.  409. 
3  Op.  A.  G.  574. 


Section  61.  All  such  deposits  shall  be  special  deposits  and  shall  1 
be  placed  in  said  savings  department,  and  all  loans  or  investments  2 
thereof  shall  be  made  in  accordance  with  the  law  governing  the  invest-  3 
ment  of  deposits  in  savings  banks.  The  investment  committee  shall  4 
approve  all  loans  and  all  purchases  or  sales  of  bonds,  stocks  and  notes  5 
made  by  or  for  the  savings  department,  and  shall  perform  such  other  6 
duties  as  the  by-laws  or  board  of  directors  may  prescribe.  A  record  7 
shall  be  made  at  each  meeting  of  the  tran,sactions  of  the  committee  8 
and  of  the  names  of  those  present.  The  committee  may,  by  vote  or  bj-  9 
a  statement  signed  by  a  majority  of  its  meniljers,  approve  changes  10 
of  collateral  security  made  by  or  for  said  department,  and  the  vote  or  11 
statement,  and  the  record  thereof,  shall  set  forth  all  such  changes.  12 

Section  62.     Such  deposits  and  the  investments  or  loans  thereof  1 

shall  be  appropriated  solely  to  the  security  and  pa^Tnent  of  such  de-  2 

posits,  shall  not  be  mingled  with  the  investments  of  the  capital  stock  3 

or  other  money  or  property  belonging  to  or  controlled  by  such  cor-  4 


Chap.  172.]  trust  companies.  1933 

5  poration,  or  be  liable  for  the  debts  or  obligations  thereof  until  after 

6  the  deposits  in  said  savings  department  have  been  paid  in  full.  The 

7  accounts  and  transactions  of  said  savings  department  shall  be  kept 
S  separate  and  distinct  from  the  general  business  of  the  corporation. 

1  Section  63.     The  capital  stock  of  such  corporation  with  the  lia-  Capital  stock 

2  bilities  of  the  stockliolders  thereunder  shall  be  held  as  secm-ity  for  the  sS/h  "deposits!^ 

3  pa^Tuent  of  such  deposits,  and  the  persons  making  such  deposits  or  op!*A^a  ^  *' 

4  entitled  thereto  shall  have  an  equal  claim  with  other  creditors  upon  ^^^^'"  ^'^^• 

5  the  capital  and  other  property  of  the  corporation  in  addition  to  the 

6  security  provided  for  by  sections  seventy-three  and  seventy-four  or  sec- 

7  tion  eighty-one. 

1  Section  64.     Every  such  trust  company  shall,  immediately  before  Guaranty  fund 

2  making  a  semi-annual  dividend  on  deposits  in  its  savings  department,  d°partmrat. 

3  set  apart  as  a  guaranty  fund  from  the  net  profits  of  such  department  Qp.'a^g.'  ^  ^' 

4  which  have  accumulated  during  the  six  months  last  preceding,  a  sum  'i^^o)  2m. 

5  equal  to  one  eighth  of  one  per  cent  of  the  deposits  in  the  savings  depart- 

6  ment  on  the  date  of  said  dividend.    If  the  said  payments  by  way  of  divi- 

7  dends  are  made  to  cover  periods  of  less  than  six  months,  then  the  amount 

8  so  set  apart  for  the  particular  period  covered  shall  bear  the  same  pro- 

9  portion  to  the  said  one  eighth  of  one  per  cent  which  the  length  of  the 

10  period  covered  bears  to  the  period  of  six  months.    The  said  sums  shall 

11  continue  to  be  set  apart  until  the  guaranty  fund  amounts  to  five  per 

12  cent  of  the  savings  deposits.     The  guaranty  fund  shall  be  kept  in  the 

13  savings  department  and  shall  be  invested  in  securities  legal  for  the  invest- 

14  ment  of  deposits  in  savings  departments.     Further  additions  to  the 

15  guaranty  fund  shall  be  at  the  discretion  of  the  investment  committee 

16  or  board  of  directors  of  the  trust  company.     When  the  fund  amounts 

17  to  less  than  five  per  cent  of  the  whole  amount  of  the  said  deposits  no 

18  losses  shall  be  met  therefrom  except  upon  the  written  approval  of  the 

19  commissioner. 

1  Section  65.     All  income  received  from  the  investment  of  funds  in  income. 

2  said  savings  department,  after  deducting  the  expenses  and  losses  in-  ^^°*'  ^~°'  ^  '"'• 

3  curred  in  the  management  thereof  and  such  sums  as  may  be  paid  to 

4  depositors  therein  as  interest  or  dividends,  shall  accrue  as  profits  to 

5  such  corporation  and  may  be  transferred  to  its  general  funds. 

1  Section  66.     Such  corporation  may  at  any  time  require  a  depositor  Notice  of 

2  in  said  savings  department  to  give  a  notice  not  exceeding  ninety  days  '^*thdr°w  such 

3  of  his  intention  to  withdraw  the  whole  or  any  part  of  liis  deposit.  loosrsab,  §  7. 

1  Section  67.     Such  corporations   having    savings    departments  may  Deposits  may 

2  place  deposits  on  interest  once  a  month  and  not  oftener,  on  such  day  moutiiiy.'"^'''' 

3  in  each  month  as  may  be  determined  by  their  by-laws.  ssofi^ti.'^  ^' 

1  Section  68.    Immediately  before  a  meeting  of  the  directors  called  to  Payment  of 

2  consider  the  declaration  of  a  dividend  by  the  savings  department  of  auYho'Hz^  hy^ 

3  every  such  trust  company,  the  investment  committee  shall  make  or  cause  exLm'iSatron'"^ 

4  to  be  made  an  examination  of  the  income,  profits  and  expenses  for  the  J?onimittc'"^°' 

5  six  months'  period  next  preceding  the  date  of  the  proposed  dividend,  ipO'S"?.  §  G- 

6  and  shall  report  to  the  directors  the  estimated  net  earnings  of  the  said  (1920)'  254. 


1934  TRUST   COMPANIES.  [ChAP.    172. 

department  for  the  said  period.     No  dividend  shall  be  paid  unless  it  is  7 

declared  and  authorized  by  the  directors  after  the  said  examination,  8 

and  a  copy  of  the  said  report  shall  be  filed  and  preserved  with  the  records  9 

of  the  corporation.    Ordinary  dividends  in  such  a  department  shall  not  10 

exceed  the  rate  of  five  per  cent  a  year,  and  extra  dividends  may  be  paid  1 1 

as  by  savings  banks,  under  and  in  accordance  with  section  fifty  of  chap-  12 

ter  one  hundred  and  sixty-eight.  13 

i9i"^ih  §  3-        Section  69.     Except  as  otherwise  provided  by  section  seventeen  of  1 

350, '§46.         chapter  one  hundred  and  sixty-seven,  no  such  corporation  shall  allow  2 

interest  on  any  savings  deposit  from  a  date  prior  to  that  on  which  the  3 

deposit  is  made,  nor  shall  a  deposit  which  is  withdrawn  between  its  divi-  4 

dend  days  be  entitled  to  interest  after  the  prior  dividend  day  except  5 

with  the  written  permission  of,  and  under  regulations  prescribed  by,  the  6 

commissioner.  7 

be  verified!  *°        Section  70.    During  one  or  more  of  the  first  ten  months  of  the  year  1 

1920, 563,  §  2.    nineteen  hundred  and  twenty -two,  and  of  each  third  ^-ear  thereafter,  every  2 

such  trust  company  shall  cause  a  verification  of  the  pass  books  of  the  3 

savings  department  to  be  made  under  such  rules  and  in  such  manner  4 

as  may  be  approved  by  the  commissioner.  5 

to'bo^ow'funds  Section  71.  No  president,  treasurer,  member  of  the  investment  1 
departnfent  or  committcc,  or  officcr  of  such  a  trust  company  charged  with  the  duty  of  2 
iPoTer^s '  investing  the  funds  of  its  savings  department  shall  borrow  or  use  any  3 
part  thereof,  be  surety  on  loans  of  said  department  to  others,  or,  di-  4 
rectly  or  indirectly,  whether  acting  individually  or  as  trustee  be  an  5 
obligor  for  money  borrowed  from  such  savings  department,  and  if  such  6 
member  or  any  such  officer,  either  individually  or  as  trustee,  becomes  7 
the  owner  of  real  estate  upon  which  a  mortgage  is  held  by  such  trust  8 
company  in  its  savings  department,  his  office  and  membership  on  such  9 
investment  committee  shall  become  vacant  at  the  expiration  of  sixty  10 
days  thereafter,  unless  he  has  then  ceased  to  be  the  owner  of  the  real  11 
estate  or  has  in  good  faith  caused  the  mortgage  thereon  to  be  discharged  12 
or  assigned.  This  section  shall  not  apply  to  any  loans  or  mortgages  13 
held  by  such  company  in  its  savings  department  on  May  twenty-eighth,  14 
nineteen  hundred  and  twenty,  or  to  renewals  thereof,  or  to  the  deposit  15 
of  money  in  any  bank  or  trust  company  of  which  one  or  more  members  16 
of  the  investment  committee  or  officers  of  such  trust  company  are  di-  17 
rectors.  For  the  purposes  of  this  section,  no  director  who  is  neither  18 
on  such  investment  committee  nor  charged  with  the  investment  of  the  19 
funds  of  such  a  department  shall  be  considered  an  officer.  20 

panfeVetJ".  Section  72.     No  sucli  trust  compauy,  and  no  person  actmg  in  its     1 

b?oke°Igretc    behalf,  shall,  directly  or  indirectly,  negotiate,  take  or  receive  a  fee,     2 
on  account  of     brokerage  commission,  gift  or  other  consideration  for  or  on  account  of     3 

loan  by  savings        ,  °  iiii-ci  -i  -i 

department.       a  loan  made  by  or  on  behali  of  such  trust  company  in  the  savings  depart-  4 

ment,  other  than  appears  on  the  face  of  the  note  or  instrument  evidenc-  5 

ing  the  same,  or  upon  the  records  of  the  savings  department,  but  this  6 

section  shall  not  prohibit  a  reasonable  charge  for  services  in  the  exam-  7 

ination  of  the  property  that  may  be  offered  or  accepted  as  security  for  8 

the  loan,  or  of  the  title  to  the  property,  or  in  the  preparation  of  con-  9 

veyances  to  such  company  of  the  security  so  offered  or  accepted.    Viola-  10 


1920,  563,  §  4. 


Chap.  172.]  trust  comp.vnies.  1935 

11  tion  of  this  section  shall  be  punished  by  a  fine  of  not  more  than  one 

12  tliousand  dollars,  or  by  imprisonment  for  not  more  than  one  year,  or 

13  both. 

RESERVES  AND  GUARANTY  FUNDS. 

1  Section  7.3.     Every  such  corporation  shall  at  all  times  have  on  hand  Pg''||"'^-,  . 

2  as  a  reser\'e  an  amoimt  equal  to  at  least  fifteen  per  cent  of  the  aggregate  isoo!  237! 

3  amount  of  its  deposits,  exclusive  of  savings  deposits  and  all  time  deposits  iqw!  374!  §  7. 

4  represented  by  certificates  or  WTitten  agreements;    but  Mhenever  such  Hoi]  Ho]  §  s. 

5  time  deposits  may  be  withdrawn  within  thirty  days,  they  shall  be  sub-  \l\°[  fgp 

6  ject  to  the  reserve  requirements  of  this  chapter;  and  every  trust  company  ^  °p-  ^-  ^  -^^■ 

7  doing  business  in  Boston  shall  at  all  times  have  on  hand  as  a  reserve  an 

8  amount  equal  to  at  least  twenty  per  cent  of  the  aggregate  amount  of  its 

9  deposits,  computed  in  the  same  manner,  but  tliis  provision  shall  not  afi'ect 

10  such  corporations  doing  business  in  Boston  and  located  at  a  distance  of 

1 1  not  less  than  three  miles  from  the  state  house. 

1  Section  74.     Not  less  than  two  fifths  of  such  reserve  shall  consist  of  Composition 

2  lawful  money  of  the  United  States,  gold  certificates,  silver  certificates,  or  isss,  4i3,'§  13. 

3  notes  and  bills  issued  by  any  lawfully  organized  national  banking  associ-  r.  l!  iiei  §28. 

4  ation  or  federal  reserve  bank,  or  bonds  of  the  United  States  or  of  this  \l^',  Uf,  1 1'. 

5  commonwealth  computed  at  their  fair  market  value  which  are  the  abso-  ll°f  2I3'   ^' 

6  lute  property  and  in  the  possession  of  such  corporation,  or  of  certificates  q '®^®q 

7  of  indebtedness  of  the  United  States;  and  at  least  one  half  of  the  said  (i9i7)49. 

8  two  fifths  of  such  reserve  shall  consist  of  lawfid  money  of  the  United 

9  States,  gold  certificates,  silver  certificates,  or  notes  and  bills  issued  by  any 

10  lawfully  organized  national  banking  association  or  federal  reserve  bank. 

11  The  remainder  of  such  reserve  may  consist  of  balances,  payable  on  de- 

12  mand,  due  from  any  trust  company  in  Boston  authorized  to  act  as  re- 

13  serve  agent  as  pro\ided  in  the  following  section,  or  from  any  national 

14  banking  association  doing  business  either  in  this  commonwealth  or  in 
1.5  the  cities  of  New  York,  Philadelphia,  Chicago  or  Albany,  or  from  the 

16  federal  reser^-e  bank  of  Boston.     A  portion  of  such  remainder,  not  ex- 

17  ceeding  one  third,  may  consist  of  bonds  of  the  United  States  or  of  this 

18  commonwealth  computed  at  their  fair  market  value,  which  are  the  abso- 

19  lute  property  and  in  possession  of  such  corporation;  provided,  that  the 

20  aggregate  amount  of  lawfid  money,  bonds  and  certificates  of  indebtedness 

21  of  the  United  States,  bonds  of  tliis  commonwealth,  and  gold  certificates, 

22  sih'er  certificates  and  notes  and  bills  issued  by  any  laT\-fidly  organized 

23  national  banking  association  or  federal  reserve  bank  held  by  such  cor- 

24  poration  shall  at  all  times  be  equal  to  at  least  five  per  cent  of  the  aggregate 

25  amount  of  all  its  time  and  demand  deposits,  exclusive  of  deposits  in  its 

26  sa\'ings  department. 

1  Section  75.     The  commissioner  may  authorize  any  trust  company  Corporation 

2  in  Boston  to  act  as  reserve  agent  for  trust  companies  doing  business  in  "serve  agent. 

3  the  commonwealth;  pro^^ded,  that  a  trust  company  shall  not  keep  any  igooils?.'  ^  '"*■ 

4  part  of  its  reserve  in  a  trust  company  so  authorized  to  act  as  reserve  fofn's^M?* 

5  agent  without  first  obtaining  the  written  consent  of  the  commissioner.  Joos' s'>o' 1 16 

6  Not  less  than  one  half  of  the  reserve  of  such  trust  company  acting  as 

7  reser\-e  agent  shall  consist  of  lawful  money  of  the  United  States,  gold 

8  certificates,  silver  certificates  or  notes  and  bills  issued  by  any  lawfully 

9  organized  national  banking  association,  and  the  remainder  of  such  reserve 
10  may  consist  of  balances,  payable  on  demand,  due  from  any  trust  company 


8. 


1936 


TRUST  COMPANIES. 


[Chap.  172. 


in  Boston  authorized  to  act  as  reserve  agent  as  herein  provided,  or  from  1 1 
any  national  banking  association  doing  business  either  in  this  common-  12 
wealth,  or  in  the  cities  of  New  York,  Philadelphia,  Chicago  or  Albany.  13 


Proceedings  if 
reserve  less 
than  required. 
1888,413.  §  13. 
R.  L.  116.  §28. 
1904,  374.  I  7. 
1005,  331.  §  1. 
1906.  204, 
H  1,3,  5. 
1908.620,  §  11. 
1909,  491,  §  3. 


Section  76.  If  the  reserve  of  any  trust  company  is  at  any  time  less  1 
than  the  amount  which  it  is  required  to  keep  on  hand,  such  corporation  2 
shall  not  make  any  new  loans  or  investments  until  the  required  propor-  3 
tion  between  the  aggregate  amount  of  its  deposits  and  reserve  shall  be  4 
restored.  The  commissioner  may  notify  such  corporation  to  make  good  5 
such  reserve,  and  if  such  corporation  fails  for  sixty  days  thereafter  so  6 
to  make  good  such  reserve,  he  may  apply  to  a  justice  of  the  supreme  7 
judicial  court  to  appoint  one  or  more  recei^^ers  to  take  possession  of  the  8 
property  and  effects  of  such  corporation  and  to  close  up  its  business,  9 
subject  to  such  directions  as  may  from  time  to  time  be  prescribed  by  the  10 
coiu-t  or  by  a  justice  thereof.  If  the  reserve  of  any  such  corporation  11 
which  has  been  authorized  to  act  as  reserve  agent  is  at  any  time  less  than  12 
the  amount  wliich  it  is  required  to  keep  on  hand,  the  commissioner  may  13 
notify  such  corporation  to  make  good  such  reserve,  and  if  such  corpo-  14 
ration  fails  for  ten  days  thereafter  so  to  make  good  such  reser-\-e,  the  15 
commissioner  may  revoke  the  authority  of  such  corporation  to  act  as  a  16 
reserve  agent.  17 


Trust  guar- 
anty fund. 
1888,413,  §  10. 
R.  L.  116,  §25. 


Section  77.  The  directors  may  from  time  to  time  set  apart  as  a  trust 
guaranty  fund  such  portion  of  the  profits  as  they  may  consider  expedient. 
Such  fund  shall  be  invested  in  such  securities  only  as  the  trust  deposits 
may  be  in-\'ested  in.  The  accounts  of  its  investment  and  management, 
and  the  secm-ities  in  which  it  is  invested,  shall  be  kept  in  the  trust 
department. 


Trust  guaranty 
fund  pledged, 

1888.413,  §  11. 
R.  L.  116,  §  26. 


Section  78.     The  trust  guaranty  fund  shall  be  absolutely  pledged  for  1 

the  faithful  performance  by  the  corporation  of  all  its  duties  and  under-  2 

takings  under  sections  fifty  to  fifty-two,  inclusi\e,  and  shall  be  apphed  3 

to  make  good  any  default  in  such  performance,  and  such  pledge  and  lia-  4 

bility  shall  not  in  any  way  reheve  the  capital  stock  and  general  funds  of  5 

the  corporation,  but  creditors  under  said  sections  shall  ha\e  an  equal  6 

claim  with  other  creditors  upon  the  capital  and  other  property  of  the  7 

corporation,  in  addition  to  the  security  hereby  given.  8 


Trust  guaranty 

fund  not  to  be 

transferred, 

etc. 

1888,413,  §  12. 

R.  L.  IKi,  §27. 


Section  79.     No  portion  of  such  trust  guaranty  fund  shall  be  trans-  1 

ferred  to  the  general  capital  while  the  corporation  has  imdertakings  of  2 

the  kind  mentioned  in  sections  fifty  and  fifty-two  for  whose  performance  3 

bonds  are  required  from  individuals,  outstanding  uncompleted;   but  its  4 

income,  if  not  required  at  any  di\idend  time  to  make  good  such  deposits  5 

or  undertakings,  may  be  added  to  and  disposed  of  with  the  general  income  6 

of  the  corporation.  7 


?896?423,  §"2'*'  Section  80.  Every  such  corporation  chartered  subsequent  to  JNIay 
R.  L.  118,  §29.  twenty-first,  eighteen  hundred  and  ninety-six,  after  a  deduction  of  all 
reasonable  expenses  and  losses  incurred  during  the  year  in  the  man- 
agement thereof,  shall  annually  set  aside  not  less  than  ten  per  cent  of 
its  remaining  earnings  as  a  guaranty  fund,  until  such  fund  amounts  to 
twenty-five  per  cent  of  its  capital,  which  fund  shall  be  in\ested  in  the 
same  manner  as  deposits  in  savings  banks  may  be  invested. 


Ch.\p.  173.] 


MORTGAGE   LO.AN   IX\'ESTMENT  COMP.'iNIES. 


1937 


1  Section  81.     A  trust  company  wliich  becomes  a  stockliolder  in  a  Heserve 

2  federal  reserve  bank  within  the  federal  reserve  district  where  such  trust  »  memberof' 

3  company  is  situated,  and  while  such  trust  company  continues  as  a  member  balfk!'  reserve 

4  bank  under  the  United  States  "  Federal  Reserve  Act "  appro\ed  December  i'-*"'  ^^v,  §  i. 

5  twenty-third,  nineteen  liundred  and  thirteen,  or  any  acts  in  amendment 

6  thereof,  shall  be  subject  to  the  pro\'isions  of  said  "Federal  Reserve  Act" 

7  and  any  amendments  thereof  relative  to  bank  reserves,  in  substitution 

8  for  the  requirements  of  sections  seventy-three  to  seventy-five,  inclusive. 

REFERENCES. 

Other  provisions  of  law  relative  to  trust  companies  will  be  found  in  Chap.  167. 

§  4.  Use  of  word  "trust"  by  persons  doing  a  banking  business  or  receiving  money 
on  deposit  forbidden.  Chap.  167,  §  12. 

§  52.  As  to  the  authority  of  national  banks  to  perform  fiduciary  acts,  §  lit  of 
the  Federal  reserve  act,  approved  December  23,  1913  (38  Stat.  251,  262,  c.  6),  as 
amended  September  26,  1918;  also  First  National  Bank  v.  Union  Trust  Company, 
244  U.  S.  417. 


CHAPTER     173. 

MORTGAGE  LOAN  INVESTMENT  COMPANIES. 


Sect. 

1.  Powers  and  duties. 

2.  Loans. 

3.  May  purchase,  sell  and  assign  notes, 

etc. 

4.  Receipt  of  money  for  investment,  etc. 

5.  Foreclosure  of  mortgages,  etc. 

6.  Issue  of  debentures  or  bonds. 

7.  Amount  guaranteed  limited. 

8.  Bonds,  notes,  etc.,  where  payable. 


Sect. 
9.  May  hold  real  estate. 

10.  Holding  its  own  capital  stock. 

11.  Liability  of  shareholders. 

12.  Guaranty  fund. 

13.  Books  to  be  open  for  inspection. 

14.  Commissioner  of  banks  to  have  super- 

vision. 

15.  Returns. 

IG.  Annual  report  as  to  such  corporations. 


1  Section  1.     Every  corporation  chartered  in  the  commonwealth  for  Powers  and 

2  the  special  purpose  of  negotiating  or  making  loans  of  money  secured  by  fsssTssv,  §  i. 

3  deed  of  trust  or  mortgage  of  real  estate  situated  outside  of  the  common-  ^^-  ^-  '^^'  ^  ^• 

4  wealth  shall  be  subject  to  this  chapter.    Any  such  corporation  chartered 

5  prior  to  May  twenty-second,  eighteen  hundred  and  eighty-eight,  shall, 

6  except  where  inconsistent  with  this  chapter,  continue  to  exercise  the 

7  powers  and  be  subject  to  the  duties  set  forth  in  its  charter. 


1  Section  2.     Such  corporation  may  loan  money  secured  by  deed  of  ^P^P^^^ 

2  trust  or  mortgage  of  real  estate  not  subject  to  a  prior  mortgage  or  en-  R.  l!  m',  §  2'. 

3  cumbrance  and  situated  in  any  state,  other  than  this  commonwealth,  or 

4  territory  of  the  United  States,  to  an  amount  not  exceeding  fifty  per  cent 

5  of  the  appraised  value  of  said  property.    It  may  also  hold,  sell  and  assign 
G  the  bonds,  notes,  mortgages  and  securities  taken  for  such  loans,  may 

7  guarantee  the  payment  of  the  interest  and  principal  of  bonds,  notes  or 

8  other  evidences  of  debt  secured  as  aforesaid,  and  may  guarantee  title 

9  to  the  property  securing  such  evidences  of  debt  for  the  time  such  debt 

10  remains  unpaid;   but  this  chapter  shall  not  authorize  such  corporations 

1 1  to  engage  in  the  business  of  title  insurance. 


1938 


MORTGAGE   LO.VN   INVESTMENT  COMPANIES. 


[CiL\P.    173. 


^Kcd'as'^sign'       Section  3.     It  may  purchase,  hold,  guarantee,  sell  and  assign  notes  1 

issl^'ss'? ■  5  3     °''  bonds,  and  the  mortgages  or  deeds  of  trust  securing  the  same,  or  other  2 

R.  l!  117!  1 3.    papers  securing  a  loan  made  in  accordance  with  the  preceding  section.  3 

mone'v*for             Section  4.     It  may  receive  money  for  investment  in  securities  which  1 

'^Zf^Sl'-^h^}"'  it  is  by  this  chapter  authorized  to  sell  or  issue,  and  may  allow  interest  2 

R.  L.  117,  §  4.    on  such  money  from  the  time  or  its  receipt  to  the  time  01  its  investment,  3 

at  such  rate  as  may  be  agreed  upon;  may  receive,  care  for,  manage  and  4 

sell  stocks,  bonds  and  evidences  of  debt,  the  avails  of  which  are  intended  5 

for  investment  as  aforesaid.    No  such  corporation  shall  receive  money  6 

on  deposit,  except  as  herein  provided,  or  engage  in  any  form  of  banldng  7 

or  trust  business  except  that  permitted  by  this  chapter.  8 


Foreclosure 

of  mortgages, 

etc. 

1888,  387,  §  5. 

R.  L.  117,  I  5. 


Section  5.  It  may  act  as  agent  for  foreclosing  mortgages  and  col- 
lecting claims  arising  by  reason  of  any  evidence  of  debt  depositetl  with  it 
under  the  preceding  section.  It  may  purchase  real  estate  at  public  auc- 
tion sale  thereof  made  by  virtue  of  the  power  contained  in  any  deed  of 
trust  or  mortgage  owned,  held  or  guaranteed  by  it,  or  at  private  sale 
thereof  made  to  cancel  the  debt  secured  by  such  deed  of  trust  or  mort- 
gage, and  may  hold,  sell,  transfer  and  convey  said  property;  but  real 
estate  so  purchased  or  accjuired  shall  be  sold  within  five  years  thereafter. 


Issue  of  de- 
bentures or 
bonds. 

1888,  387,  §  6. 
R.  L.  117,  §  6. 


Section  6.     It  may  issue  debentures  or  bonds,  to  secure  the  payment  1 

of  which  it  shall  from  time  to  time  assign  and  transfer  to  trustees,  none  2 

of  whom  shall  be  officers  of  the  corporation,  or  to  a  domestic  trust  com-  3 

pany,  deeds  of  trust  or  mortgages  of  real  estate  on  which  loans  have  been  4 

made  in  accordance  with  this  chapter,  to  be  held  by  such  trustees  or  5 

company  in  trust  for  the  benefit  of  the  holders  of  said  debentures  or  6 

bonds,  whereupon  such  trustees  or  company  shall  endorse  their  or  its  7 

certificate  of  such  fact  upon  debentures  or  bonds  not  exceeding  in  amount  S 

the  face  value  of  securities  so  transferred  to  them  or  it.  9 


giSrant'eed  Section  7.     The  total  amount  of  mortgages  guaranteed  and  of  de-     1 

1^*387  s  7     bentures  or  bonds  issued  by  such  corporation  shall  at  no  time  exceed  ten     2 
R.  l!  117]  §  7.    times  the  amount  of  its  capital  stock  actually  paid  in  and  its  surplus.  3 


Bonds,  notes, 
etc.,  where 
payable. 
1888,  387,  §  8. 
R.  L.  117,  5  8, 


Section  S.     Bonds,  notes  and  other  evidences  of  debt  taken  by  such  1 

corporation  for  money  loaned  shall  be  payable  to  it  at  its  principal  place  2 

of  business  in  the  commonwealth,  and  shall  pass  by  delivery,  by  transfer  3 

on  the  books  of  such  corporation  at  said  place  of  business,  or  by  cer-  4 

tificate  of  its  transfer  agent  at  such  other  place  as  it  may  appoint.    No  5 

transfer,  except  on  the  books  of  the  corporation  or  by  certificate  of  its  6 

transfer  agent,  shall  be  valid  unless  tlie  last  transfer  shall  have  been  to  7 

bearer.    A  complete  record  of  such  transfer  by  said  transfer  agents  shall  8 

be  forwarded  to  and  kept  at  said  place  of  business  of  such  corporation.  9 


^t''a'te^°''^ '^°'''        Section  9.     Such  corporation  may  hold  real  estate  in  tlie  common-     1 

rT'iu'Io'    wealth  suitable  for  the  transaction  of  its  business  to  an  amount  not    2 

exceeding  twenty-five  per  cent  of  its  capital  actually  paid  in.  3 


SpitS^stock.""      Section  10.     No  such  corporation  shall  purchase  or  hold  shares  of     1 
R**L.'  ii?;  §  lo!  its  own  capital  stock  unless  necessary  to  prevent  loss  upon  a  debt  pre-    2 


Chap.  173.]  mortgage  loan  ina'estment  comp.\nies.  1939 

3  viously  contracted  in  good  faith,  and  stock  so  purchased  shall  within  six 

4  months  thereafter  be  sold  or  disposed  of  at  public  or  private  sale. 

1  Section  11.    The  shareholders  of  such  corporation  shall  be  personally  LiabUity  of 

2  liable  in  the  same  manner  and  to  the  same  extent  as  stockholders  of  isssiasTrrh. 

3  business  corporations  are  liable  under  the  laws  of  this  commonwealth.  ^"  ^'  ^^'^'  ^  ^^' 

4  Sections  thirty-eight  to  forty,  inclusive,  of  chapter  one  hundred  and  fifty- 

5  six  shall  apply  to  and  regulate  the  enforcement  of  such  liability. 

1  Section  12.     Such  corporation  shall  set  apart  as  a  guaranty  fund  ^gs^'ss?  §""■?■ 

2  not  less  than  five  per  cent  of  its  paid-in  capital,  and  shall  thereafter  R-  ^'-  H''!  §  12. 

3  annually  add  thereto  not  less  than  ten  per  cent  of  its  net  earnings,  until 

4  such  fund,  with  the  accumulated  interest  thereon,  shall  be  equal  to  not 

5  less  than  twenty-five  per  cent  of  its  paid-in  capital.     Said  fund  shall 

6  be  invested  in  United  States  bonds,  English  consols,  first  mortgage  bonds 

7  of  any  railroad  corporation  which  has  paid  a  dividend  on  its  stock  for  at 
S  least  three  j'ears  last  preceding  the  date  of  said  investment,  the  legally 
9  authorized  bonds  for  municipal  purposes  of  any  city  of  the  United  States 

10  of  not  less  than  thirty  thousand  inhabitants  whose  whole  indebtedness 

11  does  not  exceed  five  per  cent  of  its  last  assessed  valuation,  or  in  any 

12  seciu-ities  in  which  savings  banks  may  invest  their  deposits. 

1  Section  13.     The  books  of  such  corporation  shall  at  all  reasonable  Books  to  be 

2  times  be  open  for  inspection  to  the  stockliolders  and  to  holders  of  bonds  spection.'°' 

3  and  debentures  issued  by  such  corporation,  or  of  notes  and  other  evidences  ^^l\  l\y\  |  Jl; 

4  of  debt  guaranteed  by  it. 

1  Section  14.    The  commissioner  of  banks  and  his  assistants  shall  "-i°?"^[^^t°°" 

2  have  access  to  the  vaults,  books  and  papers  of  such  corporation,  shall  havesuper- 

3  inspect,  examine  and  inquire  into  its  affairs,  and  take  proceedings  in  isss,  3S7,  §  11. 

4  regard  to  it  at  such  times  as  the  commissioner  shall  consider  necessary,  imi  204', 

5  in  the  same  manner  and  to  the  same  extent  as  if  such  corporation  were  fnog,  4'gt,  §  3. 

6  a  savings  bank,  and  he  may  cause  an  examination  to  be  made  by  an  expert  §|'|5^''46 '49 

7  under  his  direction  but  at  the  expense  of  the  corporation. 

1  Section  15.    Such  corporation  shall  annually,  within  ten  days  after  Returns. 

2  the  last  business  day  of  October,  make  a  return  to  said  commissioner  r.  l.  m'.  1 15! 

3  which  shall  be  in  the  form  of  a  trial  balance  of  its  books,  and  shall  specify  jj^f;!,"!' 

4  the  different  kinds  of  its  liabilities  and  assets,  stating  the  amount  of  each  JgjD'  gt'^'  5  3- 

5  kind  in  accordance  with  a  blank  form  to  be  furnished  by  him;  and  such  5§  45, 46, 49. 

6  returns  shall  be  published  in  a  newspaper  of  the  town  where  such  cor- 

7  poration  is  located,  at  the  expense  of  such  corporation,  at  such  times 

8  and  in  such  manner  as  may  be  directed  by  him. 

1  Section  16.    The  department  of  banking  and  insurance  shall  include  Annua!  report 

2  in  its  annual  report  such  facts  and  statements  relative  to  such  corpora-  corporations. 

3  tions  as  the  public  interest  requires.  isss,  3S7, 1 14. 

R.  L.  117,  §  15.     190G,  204,  §§  1,  3,  5.     1909,  491,  §  3.     1919,  350,  §§  S,  45,  46. 


1940 


BOND   ANT)  INVESTMENT   COMPANIES. 


[Chap.  174. 


CHAPTER     174. 

BOND  AND  INVESTMENT  COMPANIES. 


Suit  in  equity 
relative  to 
deposit. 
1904,  427,  §  1. 
1906.  204, 
§§  1,3,6. 
1908,  690,  §  2. 


Sect. 

1.  Corporations   to   sell   bonds,   etc.,    on 

instalment  plan,  organization,  etc. 

2.  Suit  in  equity  relative  to  deposit. 

3.  Certificate  of  authority  from  commis- 

sioner of  banks  required. 

4.  E.xamination  of  corporation. 

5.  Annual  statement. 

6.  Penalties    for   failure    to    file    and    for 

false  statement. 

7.  Suspension  of  business  of  foreign  cor- 

poration. 


Sect. 

8.  Same  of  domestic  corporation. 

9.  Penalty  on  agent  of  unauthorized  cor- 

poration. 

10.  No  forfeiture  after  one  fourth  of  in- 

stalments paid.     No  unearned  divi- 
dends. 

11.  Chapter  not  to  apply  to  insurance  and 

fraternal  corporations. 

12.  Penalty  where  not  otherwise  provided. 


Corporations 
to  sell  bonds, 
etc.,  on  in- 
stalment plan, 
organization, 
etc. 

1904,427,  I  1. 
1906,  204. 
§§  1,  3,  5. 
1908.  590,  §  2. 
1909,491,  §  3. 
1919,  350,  §  46. 


Section  1.  The  business  of  issuing,  negotiating  or  selling  any 
bonds,  certificates  or  obligations  of  any  kind  on  the  partial  payment 
or  instalment  plan,  unless  such  bond,  certificate  or  obligation  shall  at 
the  time  of  issuance,  negotiation  or  sale  be  secured  by  adequate  prop- 
erty, real  or  personal,  shall  be  transacted  in  the  commonwealth  only 
by  corporations  subject  to  the  requirements  of  this  chapter.  Every  such 
corporation  before  doing  business  in  the  commonwealth  shall  have  at 
least  one  hundred  thousand  dollars  of  capital  stock  fully  paid  in,  which, 
for  the  benefit  and  protection  of  all  its  investors  equally,  shall  be  deposited 
in  trust  with  the  state  treasurer  or  with  the  duly  authorized  officer  of 
some  other  state,  which  deposits  shall  consist  of  cash  or  of  securities  in 
which  sa^•ings  banks  in  this  commonwealth  are  permitted  to  invest  their 
deposits  or  of  securities  approved  by  the  commissioner  of  banks,  and 
worth  at  least  one  hundred  thousand  dollars.  Such  corporation,  if  the 
deposit  is  made  with  the  officer  of  any  other  state,  shall  furnish  to  the 
commissioner  a  certificate  from  said  officer  under  his  official  seal,  show- 
ing that  he,  as  such  officer,  holds  said  deposit  in  trust  for  the  benefit  and 
protection  of  all  the  investors  in  said  corporation.  The  certificate  shall 
embrace  the  items  of  securities  so  held,  and  show  that  such  officer  is 
satisfied  that  said  securities  are  worth  one  hundred  thousand  dollars, 
but  such  certificate  shall  in  no  manner  impair  the  right  of  said  commis- 
sioner to  examine  the  securities  so  held.  A  corporation  making  such 
deposit  with  the  treasurer  of  this  commonwealth  shall  be  entitled  to  the 
income  thereof,  and  may  from  time  to  time,  with  the  consent  of  the 
treasurer,  change,  in  whole  or  in  part,  the  deposited  securities  for  other 
securities  of  equal  value,  approved  as  aforesaid.  The  treasurer  may  re- 
turn to  the  corporation  any  such  deposit  if  it  shall  appear  that  the  cor- 
poration has  ceased  to  do  business  in  this  commonwealth,  and  is  under 
no  obligation  to  its  contract  holders  or  other  persons  in  this  common- 
wealth or  elsewhere  for  whose  benefit  such  deposit  was  made. 

Section  2.  A  corporation  that  has  made  such  deposit,  the  commis- 
sioner of  banks  or  any  creditor  may  bring  in  the  supreme  judicial  court 
for  Suffolk  county  a  suit  in  equity  against  the  commonwealth  to  en- 
force, administer  or  terminate  the  trust  created  by  such  deposit. 

1909,  491,  §  3.  1919,  3.50,  §  46. 


1 

2 

3 
4 
5 
6 
7 
8 
9 

10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 

1 
2 

3 
4 


Ch.\P.    174.]  BOND   AXD   IX\^ESTMENT  COMP.INIES.  1941 

1  Section  3.     No  corporation  shall  transact  the  business  described  in  Certificate  of 

2  section  one  without  receiving  a  certificate  of  authority  from  the  com-  commissTonTr'" 

3  missioner  of  banks.    Upon  the  making  of  the  deposit  with  the  state  treas-  rc,,u'ire'd. 

4  urer  or  the  filing  with  the  commissioner  of  the  certificate  required  by  jpo,';  |qJ'  ^  -■ 

5  section  one,  and  upon  an  examination  or  exliibition  of  the  assets  and  jf^J^  l^^-    ^ 

6  liabilities  of  the  corporation  showing  that  it  is  in  a  sound  financial  con-  laoo,  491'  §  3 

7  dition,  and  if  it  is  otherwise  duly  qualified  under  the  laws  of  the  com- 

8  monwealth  to  transact  business  therein,  the  commissioner  shall  issue 

9  to  it  a  certificate  of  authority  to  do  business  in  the  commonwealth. 

1  Section  4.     Upon  the  filing  of  such  certificate,  or  whenever  he  deems  Examination 

2  it  to  be  prudent  for  the  protection  of  in\'estors  in  the  commonwealth,  igw.'^w?!  Ta^ 

3  the  commissioner  may  visit  personally,  or  by  a  competent  examiner,  is^f/l^s; 

4  any  corporation  engaged  in  said  business,  and  thoroughly  inspect  and  j9o|;i9i;||; 

5  examine  its  affairs,  and  ascertain  its  financial  condition  and  whether  isw.  sso,  §  4g. 

6  it  has  complied  with  law.    The  proper  charges  incurred  in  the  examina- 

7  tion  of  a  foreign  corporation,  including  the  expenses  of  the  commissioner 

8  and  the  expenses  and  compensation  of  his  assistants  employed  therein, 

9  shall  be  paid  by  such  corporation.    For  the  purposes  aforesaid,  the  com- 

10  missioner  or  the  person  making  the  examination  shall  have  free  access 

11  to  all  the  books  and  papers  of  a  corporation  which  relate  to  its  business, 

12  and  to  the  books  and  papers  kept  by  any  of  its  agents;  and  may  examine 

13  and  administer  oath  to,  and  examine  as  witnesses,  the  directors,  officers 

14  and  agents  of  said  corporation,  and  any  other  person,  relative  to  its 

15  affairs,  transactions  and  condition. 

1  Section  5.     Every  corporation  transacting  said  business  shall  annu-  .Annual 

2  ally,  on  or  before  January  fifteenth,  file  with  the  commissioner  a  state-  igol^a?.  §  3. 

3  ment  of  its  financial  condition  on  December  thirty-first  of  the  previous  §§*'f;3°5; 

4  year,  and  its  business  of  that  year.    For  cause,  the  commissioner  may  J909;t9°'|3 

5  extend  the  time  for  filing  said  statement  to  a  date  not  later  than  February  i^^^'  ^^'>-  ^  ■"'• 

6  fifteenth.    The  statement  shall  be  in  the  form  required  by  the  commis- 

7  sioner,  and  shall  be  sworn  to  by  the  president  and  secretary,  or,  in  their 

8  absence,  by  two  of  the  principal  officers  of  the  corporation.    The  fee  for 

9  filing  such  annual  statement  shall  be  twenty  dollars. 

1  Section  6.     A  corporation  neglecting  to  file  its  annual  statement  Penalties  for 

2  within  the  time  required  shall  forfeit  one  hundred  dollars  for  each  day  and"for'°aise 

3  during  which  such  neglect  continues;   and,  upon  notice  by  the  commis-  fgw™!"!'!  3. 

4  sioner  to  that  effect,  its  authority  to  do  any  business  shall  cease  while  |s°[''3''5' 

5  such  default  continues.     For  wilfully  making  a  false  annual  statement  J^o|'  |-jO'  |  '^■ 

6  the  corporation  and  the  person  making  oath  to  or  subscribing  to  the  isw!  sm.  §  4(i. 

7  same  shall  be  punished  by  a  fine  of  not  less  than  five  hundred  nor  more 

8  than  five  thousand  dollars. 

1  Section  7.     If  the  commissioner  is  of  opinion,  upon  examination  suspension  of 

2  or  other  evidence,  that  a  foreign  corporation  subject  to  this  chapter  is  tore'ign^cor- 

3  in  an  unsound  financial  condition,  that  it  has  failed  to  comply  with  K4''427,  §  4. 

4  law,  or  if  its  officers  or  agents  refuse  to  submit  to  examination  or  to  r^*'',^'".5' 

5  perform  any  legal  obligation  relative  thereto,  he  shall  suspend  all  certifi-  JjJJj^'  -^^^  1 1- 

6  cates  of  authority  granted  to  said  foreign  corporation,  its  officers  or  ioi9,'3io,'§46. 

7  agents,  and  shall  cause  notices  thereof  to  be  published  in  such  news- 

8  papers  as  the  commissioner  may  deem  advisable;   and  no  new  busi- 


1942 


BOND   AND   INVESTMENT  COMPANIES. 


[Chap.  174. 


ness  shall  thereafter  be  done  by  it  in  this  commonwealth  while  such  9 
default  or  disability  continues,  nor  until  its  authority  to  do  business  is  10 
restored  by  the  commissioner  or  by  the  supreme  judicial  court  as  herein-  1 1 
after  provided.  He  shall  forthwith  notify  the  corporation  of  such  12 
suspension  and  shall  specify  in  the  notice  the  cause  thereof  and  the  13 
particulars  of  any  alleged  violation  of  law.  The  supreme  judicial  court,  14 
upon  petition  of  said  corporation  brought  within  thirty  days  after  15 
receipt  of  said  notice,  shall  summarily  hear  and  determine  the  question  16 
whether  such  cause  for  suspension  exists,  and  shall  make  any  appro-  17 
priate  order  or  decree  therein.  Questions  of  law  may  be  taken  to  the  18 
full  court,  as  in  other  cases.  19 


Same  of 
domestic 
corporation. 
1004,  427,  §  4. 
IflOO,  204. 
§§  1.3.6. 
130S.  500.  §  2. 
1909,  491,  §  3. 
1919,350,  §4t>. 


Section  S.     If  upon  examination  the  commissioner  is  of  opinion  that  1 

any  domestic  corporation  subject  to  the  requirements  of  this  chapter  2 

is  in  an  unsound  financial  condition  or  has  exceeded  its  powers,  or  has  3 

failed  to  comply  with  any  provision  of  law,  he  shall  apply  to  the  supreme  4 

judicial  court  in  equity  for  an  injunction  restraining  the  corporation  5 

from  further  proceeding  with  its  business  in  whole  or  in  part.     The  6 

court  may  issue  an  injunction  forthwith,  and  may,  after  a  full  hearing,  7 

make  the  injunction  permanent,  and  may  appoint  a  receiver  or  receivers  8 

to  take  possession  of  the  property  and  effects  of  the  corporation  and  9 

to  settle  its  affairs,  subject  to  the  order  of  the  court.  10 


Penalty  on 
agent  of  un- 
authorized 
corporation. 

1904,  427.  §  5. 
IflOB.  201. 

§§  1.3.5. 

1905.  590,  ?  2. 
1909,  491,  §  3. 
1919,  350,  §  46. 


Section  9.     Whoever  sells  or  attempts  to  sell  any  bond,  certificate  1 

or  obligation  issued  by  a  corporation  subject  to  this  chapter,  or  transacts  2 

any  business  in  behalf  of  said  corporation,  unless  said  corporation  is  3 

thereto  authorized  under  this  chapter  by  the  commissioner  of  banks,  4 

shall  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  more  than  5 

one  thousand  dollars  or  by  imprisonment  for  not  more  than  six  months,  6 

or  both.  7 


.No  forfeiture 
after  one 
fourth  of  in- 
stalments paid. 
No  unearned 
dividends. 
1904.427,  §  0. 


Section  10.  Every  corporation  subject  to  this  chapter  shall  provide  1 
in  every  bond,  certificate  or  contract  issued  by  it  that,  after  one  fourth  2 
of  the  total  amount  of  instalments  therein  required  has  been  paid  and  in  3 
any  event  after  instalments  for  two  full  years  have  been  paid  thereon,  in  4 
case  of  default  in  the  payment  of  any  subsequent  instalment  a  paid-up  5 
bond  shall  be  given  to  the  holder  of  said  bond,  certificate  or  contract  6 
of  not  less  than  the  full  amount  paid  thereon  less  any  amount  paid  by  7 
said  corporation  on  account  thereof,  said  paid-up  bond  to  mature  at  the  8 
same  date  as  the  original  bond,  certificate  or  contract;  and  no  such  cor-  9 
poration  shall  provide  for  the  payment  of  profits  in  the  form  of  dividends  10 
or  otherwise,  except  from  earnings,  nor  pay  any  part  of  the  payments  11 
made  by  the  holder  of  any  bond,  certificate  or  contract  in  force  to  the  12 
holder  of  any  other  bond,  certificate  or  contract;  provided,  that  nothing  13 
herein  contained  shall  be  construed  to  prohibit  the  payment  of  accumu-  14 
lations  by  such  corporation  on  its  contracts  at  their  final  matiu'ity.  15 


Chapter  not 
to  appl.v  to 
insurance  and 
fraternal 
corporations. 


Penalty  where 
not  otherwise 
provided. 
1904,  427,  §  S. 


Section  11.  This  chapter  shall  not  apply  to  corporations  subject  1 
to  chapter  one  hundred  and  seventy-five,  one  hundred  and  seventy-six  2 
or  one  hundred  and  seventy-seven.  i904, 427.  §  7.  3 


Section  12.  Any  person  or  corporation  violating  any  provision  of 
this  chapter  for  which  no  penalty  is  specifically  provided  shall  be  pun- 
ished by  a  fine  of  not  more  than  fi\e  hundred  dollars. 


1 


Chap.  175.] 


INSURANCE. 


1943 


CHAPTER   175. 

INSURANCE. 


Sect. 

general  provisions. 

1.  Definitions. 

2.  Definition  of  insurance. 

3.  Insurance  contracts  contrary  to  this 

chapter  or  chapter  176  or  177  for- 
bidden. 

POWERS    AND    DUTIES    OF    COMMISSIONER    OF 
INSURANCE. 

4.  Examination  of  companies  and  financ- 

ing corporations.  Investigation  of 
sales  of  companies'  stock. 

5.  Revocation    of    authority    of    foreign 

companies. 

6.  Domestic     companies    to   make   good 

impaired  capital.  Receivership  and 
injunction  proceedings,  when  au- 
thorized. 

7.  Domestic  life  companies  to  cease  busi- 

ness if  in  unsound  condition. 

8.  Commissioner  to  report  violations  of 

law. 

9.  Computation  of  reserves  of  life  com- 

panies. 

10.  Computation  of  reserves  of  companies 

other  than  life. 

11.  Computation  of  assets  and  liabilities. 

12.  Computation  of  reserves  of  liability 

companies. 

13.  Examination  for  increase  or  reduction 

of  capital. 

14.  Collection  of  charges  and  fees. 
1.5.  Blanks  for  annual  statements. 

16.  Record  of  proceedings.    Certificates  for 

use  in  court. 

17.  Annual  report. 

PROVISIONS       COMMON       TO       FOREIGN       AND 
DOMESTIC    COMPANIES. 

15.  Companies  to  act  in  corporate  name. 

Liabilities  to  be  published  with  as- 
sets. 

19.  Returns  for  assessment  of  taxes. 

20.  Reinsurance. 

21.  Limit  of  single  risk. 

22.  Certain  provisions  in  policies  void. 

23.  Life  company  to  cease  business  after 

notice  from  commissioner  that  funds 
are  insufficient. 

24.  Policies  of  life  companies  may  provide 

for  total,  etc.,  disability  and  acci- 
dental death  benefits. 

Annual  Statements. 

25.  .Annual  statements. 

26.  Penalty  for  neglect    to  make   annual 

statement. 


Sect. 

27.  Companies  to  report  suits. 

28.  Special  report  in  cases  of  delay,  etc. 

PROVISIONS      RESPECTING      DOMESTIC      COM- 
P.INIES. 

General. 

29.  Companies  subject  to  this  chapter. 

30.  Companies  subject  to  general  corpora- 

tion laws. 

31.  Continuation  of  certain  companies. 

32.  Domestic  company  to  obtain  certifi- 

cate before  issuing  policies. 

33.  Signatures  on  policies. 

34.  Location  of  office  and  designation. 

35.  Salaries  to  be  authorized  by  directors. 

36.  Pensions  to  employees. 

37.  Vouchers  for  disbursements. 

38.  Mortgages  may  be  sold  on  execution. 

39.  Sale  of  real  estate  on  execution. 

40.  Adjournment  of  sale. 

41.  Debt  due  company  to  pass  to  pur- 

chaser.   Action  thereon. 

42.  Secretary,  etc.,   to  furnish   copies  of 

notes,  etc.,  to  officer,  etc. 

43.  No  transfer  of  such  note,  etc.,  after 

notice,  etc.,  to  be  valid,  except,  etc. 

44.  Powers  of  company  to  cease  if  it  does 

no  business  for  a  year,  etc, 

45.  Unauthorized  foreign  agencies. 

46.  Preferred  claims  of  insolvent  fire  com- 

panies. 

Organization. 

47.  Purposes  of  incorporation.     Kinds  of 

business. 

48.  Capital  of  stock  companies. 

49.  Formation  of  corporation. 

50.  Change  of  business,  etc. 

51.  Kinds  of  business  which  may  be  com- 

bined by  stock  companies. 

52.  Contracts  for  different  classes  of  in- 

surance to  be  in  separate  policies, 
except,  etc. 

53.  Fonns  of  certain  policies  to  be  filed 

with  commissioner. 

54.  Kinds  of  business  which  may  be  com- 

bined by  certain  mutual  companies. 

55.  Powers  of  certain  mutual  companies. 
50.  Reincorporation  of  company  subject  to 

chapters  176  and  177. 

Stock  Companies. 

57.  Directors;  election,  number,  quorum, 

term,  classes.     Vacancies. 

58.  Directors,  duties. 

59.  Duties    of    president    and    secretary. 

Records.     Penalty  for  false  record. 


1944 


INSURANCE. 


[Chap.  175. 


Sect. 

60.  Qualification  of  officers. 

61.  Rights  of  stockholders.    Proxies. 

62.  Liability  of  officers. 


63. 

64. 
65. 
66. 


Investments  of  All  Companies. 
Pajinent  and  investment  of   capital 

and  reserve. 
Investments. 
Loans  on  mortgages. 
Investments  of  life  companies. 

67.  Same  subject. 

68.  Prohibited  investments  to  be  sold. 

Provisions  as  to  Capital  Stock. 

69.  Assessment  if  capital  impaired. 

70.  Increase  of  capital. 

71.  Reduction  of  capitaL 

72.  Dividends. 


Mutual  Companies. 
7.3.  Mutual  fire  companies.     Issue  of  pol- 
icies. 

74.  Certain  mutual  fire  companies  not  to 

make  further  insurance  without  a 
certificate. 

75.  Compensation  of   person  determining 

risks. 

76.  Members  of  mutual  fire  companies. 

77.  Mutual  fire  companies  to  elect  direc- 

tors.  Duties.    Vacancies,  how  filled. 

78.  Mutual  fire  companies  subject  to  cer- 

tain sections. 

79.  Guaranty  capital.      Div-idends.      Re- 

tirement. 

80.  Dividends,  accumulated  profits,  etc. 

81.  Premium.    Contingent  liability. 

82.  Certain  companies  may  t^ke  deposit 

notes. 
S3.  Assessments. 

84.  Supreme  judicial  court  may  review  or 

order  assessment. 

85.  Penalty  for  guaranty  against  assess- 

ment.   Personal  liability  of  officers. 

86.  Mutual  marine  companies.     Liability 

fund,  etc. 

87.  Certain  mutual  companies  subject  to 

Pubhc  Statutes. 

88.  Mutual  marine  companies  subject  to 

certain  sections. 

89.  Liability  of  subscriber  and  officer. 

90.  Certain  mutual  companies  subject  to 

law  as  to  mutual  fire  companies. 

91.  Mutual  automobile  companies.     For- 

mation. 

92.  Mutual   boiler   companies.      Issue   of 

policies. 

93.  Mutual  liability  companies.     Issue  of 

policies. 

94.  Mutual    life    companies.       Members. 

Proxies    authorized.  Directors. 

Guaranty       capital.         Dividends. 
Redemption. 


Se^ct. 

fire  insurance. 
95.  Over-insurance  prohibited.     Term  of 

fire  policy. 
90.  Liability  for  fire  loss  limited. 
97.  PajTiient  of  mortgagees. 
9S.  Statement  in  application  not  part  of 

contract,  etc. 
99.  Standard  form  of  fire  policy. 
100.  Appointment  of  referees.    Referees  to 
determine  sound  value,  when. 
Meetings  of  referees. 
Lack  of  sworn  statement  of  loss  not  to 
be  taken  advantage  of  by  the  com- 
pany, etc. 
Companies   may    cancel    certain    fire 

policies. 
Complaint   by   person    aggrieved    by 
fire  rates. 


101 
102 


103. 


1U4. 


FIDELITY        INSURANCE        AND         CORPORATE 

SURETY. 

105.  Powers  of  fidelity  and  corporate  surety 

companies. 

106.  Deposit  required  of  foreign  company. 

107.  Status  of  surety  bonds. 

ACCIDENT,       HEALTH       AND       LIABILITY       IN- 
SURANCE. 

108.  Accident  or  health  policies  to  be  ap- 

proved by  commissioner  and  to  con- 
tain certain  provisions. 

109.  Certain  conditions  prohibited. 

110.  Sections  108  and  109  not  applicable  to 

certain  policies. 

111.  Beneficiary  under  accident,  etc.,  poli- 

cies may  sue. 

112.  PajTnent  of  losses  under  liability  con- 

tract regulated. 

113.  Effect  of  judgment. 

TITLE    INSUR.tNCE. 

114.  Title  insurance  companies  exempted 

from  this  chapter. 

115.  Provisions  relating  to  title  insurance 

companies. 

116.  Guaranty  fund. 

STEAM    BOILER    INSURANCE. 

117.  Term  of  boiler  policies. 

LIFE    INSUR.ANCE. 

lis.  Definition  of  life  company. 

119.  Life  companies  may  grant  annuities, 

etc. 

120.  Discrimination- prohibited. 

121.  Certain  agreements  prohibited. 

122.  Discrimination    on    account    of    color 

prohibited. 

123.  Medical  examination  required,  except, 

etc. 

124.  Statements  as  to  age,  health, etc..  bind- 

ing if  policy  issued  without  medical 
examination,  etc.,  except,  etc. 

125.  Rights  of  creditor  and  beneficiarj-. 


CH.A.P.  175.] 


mSUEANCE. 


1945 


Sect. 

126.  Policies   payable   to   married   woman 

enure  to  her  benefit. 

127.  Penalties  for  false  statements,  ete. 
12S.  Infant  cannot  avoid  contract  for  in- 
surance. 

129.  Description  of  life,  etc.,  policies. 
I'M.  Dating  of  life,  etc.,  policies. 

131.  Application  referred  to  in  life  policy 

must  be  attached  thereto. 

132.  Life,  annuity,  etc.,  policies  to  be  ap- 

proved by  conimissioner.     Life  poli- 
cies to  contain  certain  provisions. 
13.3.  Group  life  insurance  defined. 

134.  Group  life  policies  to  be  approved  by 

commissioner  and  to  contain  certain 
provisions. 

135.  Group    life    policies    not    subject    to 

attachment. 

136.  Such  policies  exempt  from  loan  pro- 

vision, etc. 

137.  Employer    only    to   be   member   of  a 

mutual  company  issuing  such  poli- 
cies. 

138.  Effect  of  sections  133  to  137. 

139.  Exchange  of  certain  life  policies. 

140.  Annual  dividends. 

141.  Safety  fund. 

142.  Loans. 

143.  Certain  policies  subject  to  earlier  laws 

limiting  forfeiture. 

144.  Policies  issued  after  December  3 1,1907. 

Cash  surrender  value,  extended  term 
insurance  or  paid-up  policy  after 
three  annual  premiums  have  been 
paid. 

145.  Cash    surrender    value    of    industrial 

policies  issued  before  December  31, 
1911. 
14C.  Industrial  policies  issued  after  De- 
cember 31,  1911,  extended  term  in- 
surance after  three  years'  premiums 
have  been  paid. 

147.  Same  subject.    Paid-up  policy  or  cash 

surrender  value  after  five  years' 
premiums  have  been  paid. 

148.  Notice  of  lapse  of  such  policy,  etc. 

149.  Company  not  to  issue  participating 

and  non-participating  policies. 

FOREIGN    COMPANIES. 

150.  Admission. 

151.  Conditions  of  admission. 

152.  Kinds  of  business  which  may  be  com- 

bined by  foreign  companies. 

153.  Conditions  of  admission  of  foreign  life 

companies. 

154.  Service  of  process  on  commissioner. 

155.  Conditions  of  admission  of  companies 

of  a  foreign  country. 
150.  Company  of  a  foreign  country  may 
appoint  trustees. 

157.  Foreign    companies    to    act    through 

resident  agents. 

158.  Policy  not  invalidated  by  war. 


Sect. 

159.  Conditions  of  laws  of  other  states. 

100.  Penalty  for  unlawful  contracts,  etc. 

LLOYDS   ASSOCIATIONS. 

101.  Lloyds  associations. 

AGENTS,   BROKERS    AND    ADJUSTERS. 

102.  Definitions. 

163.  Licenses  of  agents. 

164.  License  not  necessary  for  collector. 

165.  Authority  of  officer  of  domestic  com- 

pany. 

166.  Licenses  of  brokers. 

167.  Limited  licenses  of  brokers. 

168.  Special  brokers'  licenses.     Insurance 

by  unauthorized  companies. 

169.  Effect  of  payment  to  agent  or  broker. 

170.  False  pretence  by  agent  or  broker. 

171.  Liability  on  illegal  contract. 

172.  Licenses  of  adjusters  of  fire  losses. 

173.  Partnership  licenses. 

174.  Corporation  licenses. 

175.  Penalty  for  pretending  to  be  a  broker, 

etc. 

176.  Larceny    of    premium    by    agent    or 

broker. 

177.  Compensation   to  unlicensed   persons 

forbidden. 

RECEIVERS. 

178.  Compensation    and    accounts    of    re- 

ceivers. 

179.  Commissioner  or  deputy,  etc.,  may  be 

appointed  receiver. 

180.  Examinations  of  accounts  of  receivers. 

MISREPRESENTATIONS    AND    REHATES. 

181.  Misrepresentations  to  insured  prohib- 

ited. 

182.  Rebates,  etc.,  forbidden. 

1S3.  Acceptance  of  such  rebates,  etc.,  for- 
bidden. 

184.  Application  of  two  preceding  sections. 

MISCELLANEOUS    PROVISIONS. 

185.  Deposits  of  companies. 

186.  Misrepresentation  by  insured.    Effect. 
1S7.  Companies  may  insert  conditions  re- 
quired by  foreign  laws. 

188.  Penalty  for  unlawful  use  of  proxy. 

189.  Penalty  for  making,  etc.,  policies  in 

violation  of  this  chapter. 

190.  Penalty  for  making,  etc.,  policies  con- 

trary to  sections  99,  108,  109,  132, 
134. 

191.  Companies  to  file  policies,    circulars, 

etc.,  on  request. 

192.  Riders,  etc.,  subject   to   approval   of 

commissioner. 

193.  Policies  valid  though  issued  contrary 

to  this  chapter. 

GENERAL   PENALTY. 

194.  General  penalty. 


1946  iNSUKANCE.  [Cbajp.  175. 

GENERAL  PROVISIONS. 

?SM?453°|30.  Section  1.  The  following  words,  as  used  in  this  chapter,  unless  1 
i?5|.|52.  i_55.  ^}^g  context  otherwise  requu-es  or  a  different  meaning  is  specifically  pre-  2 
1873,  if'i.|  l*'  scribed,  shall  have  the  following  meanings:  3 

lo78,  I.JO,  §  7.  ,,  ^~^  •.«ai  ..y.  . 

p.  s.  119,  §  1.  Commissioner   ,  the  commissioner  oi  insurance.  4 

1SS7,  214,  fl.  R.  L.  118,  §1.  1917.10,5  2. 

1891,522,11.  1907,  576,  §§  1,  122.         1919,  350,  S§  45,  46. 

3 Op. A. G. 222.  "Company",  all  corporations,  associations,  partnerships  or  Individ-  5 
uals  engaged  as  principals  in  the  business  of  insurance.  6 

"Compensation",  as  used  in  section  twelve,  relates  to  all  insurance  7 
effected  under  statut;es  pro\uding  compensation  to  employees  for  per-  8 
sonal  injuries  regardless  of  the  fault  of  the  employer.  9 

"Domestic  company",  a  company  incorporated  or  formed  in  the  10 
commonwealth.  1 1 

"Earned  premiums",  as  used  in  section  twelve,  includes  gross  pre-  12 
miums  charged  in  all  policies  T.\Titten,  including  all  determined  excess  13 
and  additional  premiums  less  return  premiums,  other  than  premiums  14 
returned  to  policy  holders  as  dividends,  and  less  reinsurance  premiums  15 
and  premiums  on  policies  cancelled,  and  less  unearned  premiums  on  16 
policies  in  force.  But  any  participating  company  which  has  charged  17 
in  its  premiums  a  loading  solely  for  di\idends  shall  not  be  required  to  18 
include  such  loading  in  its  earned  premiums;  provided,  that  a  state-  19 
meiit  of  the  amount  of  such  loading  has  been  filed  with  and  approved  20 
by  the  commissioner.  21 

"Foreign  company",  a  company  formed  by  authority  of  any  state  or  22 
government  other  than  this  commonwealth.  23 

"Insurance  company"  or  "insurer",  the  same  meaning  as  24 
"company".  25 

"Liability",  as  used  in  section  twelve,  relates  to  all  insurance,  except  26 
compensation  insurance,  against  loss  or  damage  from  accident  to  or  27 
injuries  suffered  by  an  employee  or  other  person,  for  which  the  insured  28 
is  liable.  '  29 

"Loss  pajTaents"  and  "loss  expense  pajTuents",  as  used  in  said  .30 
section,  include  all  pajTnents  to  claimants,  including  pajTaents  for  31 
medical  and  surgical  attendance,  legal  expenses,  salaries  and  expenses  32 
of  investigators,  adjusters  and  field  men,  rents,  stationery,  telegraph  33 
and  telephone  charges,  postage,  salaries  and  expenses  of  office  employees,  34 
home  office  expenses,  and  all  other  payments  made  on  account  of  35 
claims,  whether  such  pajinents  shall  be  allocated  to  specific  claims  or  36 
unallocated.  37 

'05 Mass' 303'  "Net  asscts",  the  funds  of  a  company  available  for  the  payment  of  38 
its  obligations  in  the  commonwealth,  including,  in  the  case  of  a  mutual  39 
fire  company,  its  deposit  notes  or  other  contingent  funds,  and,  in  the  40 
case  of  a  mutual  marine  company,  its  subscription  fund  and  premium  41 
notes  absolutely  due,  and  also  including  uncollected  and  deferred  premi-  42 
ums  not  more  than  tliree  months  due  on  policies  actually  in  force,  after  43 
deducting  from  such  funds  all  unpaid  losses  and  claims,  and  claims  for  44 
losses,  and  all  other  debts  and  liabilities  inclusi^•e  of  net  value  of  policies  45 
and  exclusive  of  capital.  46 

"Net  value  of  policies",  the  liability  of  a  company  upon  its  insurance  47 
contracts,  other  than  accrued  claims,  computed  by  rules  of  ^■aluation  48 
established  bv  sections  nine  to  twelve,  inclusive.  49 


Ch,\P.    175.]  INSUB-4NCE.  1947 

50  "Profits"  of  a  mutual  company,  that  portion  of  its  cash  funds  not 

51  required  for  payment  of  losses  and  expenses  nor  set  apart  for  any  purpose 

52  allowed  by  law. 

53  "Unearned  premiums",  the  same  meaning  as  "net  value  of  policies". 

1  Section  2.     A  contract  of  insurance  is  an  agreement  by  which  one  Definition 

p  .  ,  .  .  ^  .  •        1        j_  i       of  insurance. 

2  party  tor  a  consideration  promises  to  pay  money  or  its  equivalent,  or  to  issr,  2u,  §  3. 

3  do  an  act  valuable  to  the  insured,  upon  the  destruction,  loss  or  injury  of  issTieEr' 

4  something  in  which  the  other  party  has  an  interest.       1907, 576,  §§  3, 122.        ^-  ^-  "*•  ^  ^• 

105  Mass.  149.  227  Mass.  63.  3  Op.  A.  G.  222. 

166  Mass.  501.  1  Op.  A.  G.  33,  77,  153,  Op.  A.  G.  (191S)  40. 

217  Mass.  47.  164,  345.  544. 

226  Mass.  281.  2  Op.  A.  G.  123,  226,  251.  419.  See  §  107  as  to  surety  bonds. 

1  Section  3.     No  company  shall  make  a  contract  of  insurance  upon  insurame con- 

2  or  relative  to  any  property  or  interests  or  lives  in  the  commonwealth,  to'^thisThap'ter 

3  or  T\ith  any  resident  thereof,  and  no  person  shall  negotiate,  solicit,  or  in  ^  uTlol-^'"^ 

4  any  manner  aid  in  the  transaction  of  such  insurance  or  of  its  continu-  j^gy'^^k  §  3. 

5  ance  or  renewal,  except  as  authorized  by  this  chapter  or  chapters  one  i|9*.  522.  §  3. 

6  hundred  and  seventy-six  and  one  hundred   and  seventy-seven.     All  R.  l.'ii^s,  §3. 

7  contracts  of  insurance  on  property,  lives  or  interests  in  the  common-  §'§3,' 122'.' 

8  wealth  shall  be  deemed  to  be  made  therein.  lois.  112,  §  7.  ^'•'^^'  """*•  ^  *• 

182  Mass.  3S9.  212  Jlass.  459.  226  Mass.  281.  2  Op.  A.  G.  471. 


POWERS   AND  Dt'TIES   OF  COMMISSIONER   OF  INSUR.UCCE. 

1  Section  4.     Before  granting  licenses  or  certificates  of  authority  to  a  Examination 

_  .,..«.  .  .  of  companies 

2  company  to  issue  pohcies  or  insurance  or  annuity  or  pure  endowment  ami  financing 

3  contracts,  the  commissioner  shall  be  satisfied,  by  such  examination  as  li'/vSga'tlonof 

4  he  may  make  and  such  e\-idence  as  he  may  require,  that  such  company  p^nfes-'sfJck. 

5  is  otherwise  duly  qualified  under  the  law  of  the  commonwealth  to  trans-  ||5^5^,i2^' 

6  act  business  therein.    He  shall  require  e\-ery  domestic  company  to  keep  231^  §^5^    ^^ 

7  its  books,  records,  accounts  and  vouchers  in  such  manner  that  he  or  his  isss',  i-7,  §2.-' 

8  authorized  representatives  may  readily  verifv  its  annual  statements  and  §§2,'3.5. 

9  ascertain  whether  the  company  has  complied  with  the  law.  §§  1-3,'s.' 

10  At  least  once  in  three  years,  and  whenever  he  determines  it  to  be  j'jl-ljib. 

11  prudent,  he  shall  personally,  or  by  his  deputy  or  examiner,  visit  each  do-  ll^e^'jog*' 

12  mestic  company,  and  thoroughly  inspect  and  examine  its  aft'airs  to  ascer-  jf'y'™' 
18  tain  its  financial  condition,  its  ability  to  fulfil  its  obligations,  whether  1S97',  67V11. 

14  it  has  complied  with  the  law,  and  any  other  facts  relating  to  its  busi-  §§6,ios.' 

15  ness  methods  and.  management,  and  the  equity  of  its  dealings  with  §§6,'iiV,'i22. 

16  its  policy  holders.     He  shall  also  make  such  examination  upon  the  re-  Jg}G',4o!'' 

17  quest  of  five  or  more  of  the  stockholders,  creditors,  policy  holders  or  isiMass.  261. 

18  persons  pecuniarily  interested  therein  ^\•ho  shall  make  affidavit  of  their 

19  belief,  with  specifications  of  their  reasons  therefor,  that  such  company 

20  is  in  an  unsound  condition.    Whenever  he  deems  it  advisable  he  shall 

21  cause  a  complete  audit  of  the  books  of  the  company  to  be  made  by  a 

22  disinterested  expert  accountant. 

23  Whenever  he  determines  it  to  be  prudent,  for  the  protection  of  policy 

24  holders  in  the  commonwealth,  he  shall  in  like  manner  visit  and  examine, 

25  or  cause  to  be  \isited  and  examined  by  some  competent  persons  whom 
2G  he  may  appoint  therefor,  any  foreign  company  applying  for  admission 

27  or  already  admitted  to  do  business  in  the  commonwealth;  and  such 

28  company  shall  pay  the  proper  charges  incurred  in  such  examination, 

29  including  the  expenses  of  the  commissioner  or  his  deputy  or  examiners 


1948 


INSX.TE.UyCE. 


[CH.4.P.    175. 


and  the  expenses  and  compensation  of  his  appointees  employed  30 
therein.  31 

If  it  shall  appear  upon  examination  that  any  company  has  entered  32 
into  an  agreement  with  a  corporation,  domestic  or  foreign,  or  other  33 
organization  whereby  such  corporation  or  organization  has  undertaken,  34 
except  by  reinsurance,  to  be  responsible  for  the  whole  or  any  part  of  35 
the  expenses,  liabilities  or  other  obligations  appertaining  to  the  trans-  36 
action  of  business  by  such  company  for  the  consideration  that  such  37 
company  shall  become  liable  to  such  corporation  or  organization  for  a  38 
part  of  said  company's  income,  assets  or  profits,  the  commissioner  may  39 
examine  or  cause  to  be  examined  such  corporation  or  organization,  and  40 
may  thoroughly  investigate  its  affairs  to  ascertain  its  financial  condition,  41 
its  ability  to  fulfil  its  obligation  to  the  company,  and  any  other  facts  42 
relating  to  its  business  methods  and  management,  and  shall  set  forth  43 
his  findings,  so  far  as  they  affect  the  financial  condition  of  the  company,  44 
in  a  report  which  shall  be  a  public  record.  45 

If  it  shall  appear  to  the  commissioner,  from  charges  filed  with  him  46 
setting  forth  the  facts  on  oath,  that  unwarranted  and  misleading  state-  47 
ments,  estimates  and  promises  are  being  made  and  excessive  compen-  48 
sation  allowed  for  promoting  the  sale  in  the  commonwealth  of  stock  49 
for  establishing  a  new  company,  domestic  or  foreign,  the  commissioner  50 
shall  investigate  said  charges,  or  may  act  on  his  own  initiative  in  making  51 
such  investigations,  and  shall  make  a  record  in  his  department  of  his  52 
findings  in  relation  thereto.  53 

The  commissioner  or  the  person  authorized  by  him  to  make  exami-  54 
nations  or  investigations  provided  for  by  this  section  shall  have  free  55 
access  to  all  the  assets  of  the  company,  corporation  or  other  organization  56 
for  the  purpose  of  verification  and  to  all  the  books  and  papers  relating  57 
to  its  business  and  to  the  books  and  papers  of  its  representatives.  He  58 
or  the  person  authorized  by  him  may  summon  and  examine  under  oath  59 
any  person  who,  he  believes,  has  knowledge  of  the  affairs,  transactions  60 
or  circumstances  being  examined  or  investigated;  and  whoever  with-  61 
out  justifiable  cause  neglects  upon  due  summons  to  appear  and  testify  62 
before  the  commissioner  or  his  authorized  representative,  and  whoever  63 
obstructs  said  commissioner  or  said  representative  in  making  exami-  64 
nations  or  investigations  hereunder,  shall  be  punished  by  a  fine  of  not  65 
more  than  one  thousand  dollars  or  by  imprisonment  for  not  more  than  66 
one  year.  67 


,  §1. 


Revocation  of 
authority  of 
foreign  com- 
panies. 

1871,297,  §4. 
P.  S.  119,  §  13. 
1887,214, 
§§  7,  82. 
1890,  304. 
1894,522, 
§1  7,  82. 
1898,  53; 
R.  L.  lis. 
§§  7,  20.  82. 
1903,421. 
1907,  57C. 
§§  7,  20,  61, 
87,  122. 
1910,493,  §7. 
1912,330. 
1913,474,  §  3. 
1914,  448,  I  1. 
1919,114,  §  1. 
1920,  147,  §  4. 
155  Mass.  404. 


Section  5.  If  the  commissioner  is  of  opinion,  upon  examination  or  1 
other  e\idence,  that  a  foreign  company  is  in  an  unsound  condition,  that  2 
it  has  failed  to  comply  with  any  provision  of  law  or  with  its  charter,  or  3 
that  its  condition  is  such  as  to  render  its  further  transaction  of  bi^siness  4 
hazardous  to  the  public  or  Its  policy  holders,  or  that  its  actual  funds  5 
exclusive  of  Its  capital,  if  it  Is  a  life  company,  are.less  than  its  habilltles,  6 
or  if  its  officers  or  agents  refuse  to  submit  to  examination  or  to  perform  7 
any  legal  obligation  relative  thereto,  he  shall  revoke  or  suspend  all  8 
licenses  granted  to  said  foreign  company,  or  its  agents,  and  shall  cause  9 
notices  thereof  to  be  published  in  such  manner  as  he  may  deem  neces-  10 
sary  for  the  protection  of  the  public.  No  new  insurance  shall  thereafter  1 1 
be  WTitten  by  it  or  its  agents  in  the  commonwealth  until  its  authority  12 
to  do  business  is  restored  by  the  commissioner.  Unless  the  ground  13 
for  revocation  or  suspension  relates  onh-  to  the  financial  condition  or  14 


Ch.\P.   175.]  INSUE.\NCE.  1949 

15  soundness  of  the  company  or  to  a  deficiency  in  its  assets,  he  shall  op  a^g'^^*' 

16  notify  the  company  not  less  than  ten  days  before  revoking  or  suspend-  d^i^)  37. 

17  ing  its  license;    and  he  shall  specify  in  the  notice  the  particulars  of 

18  the  alleged  \aolation  of  law  or  of  its  charter  or  grounds  for  revocation 

19  or  suspension.    The  supreme  judicial  court,  upon  petition  of  said  com- 

20  pany  brought  within  ten  days,  shall  summarily  hear  and  determine 

21  the  question  whether  such  %aolation  has  been  committed,  or  whether  it 

22  is  insoh'cnt  or  in  an  unsound  condition  or  has  exceeded  its  powei-s  or 

23  has  failed  to  comply  ^Aith  any  pro\'ision  of  law  or  of  its  charter,  or 

24  whether  its  condition  is  such  as  to  render  its  further  transaction  of 

25  business  hazardous  to  the  public  or  to  its  policy  holders,  and  shall  make 
2G  any  appropriate  order  or  decree  therein.    If  the  order  or  decree  is  ad- 

27  veree  to  the  petitioning  company,  an  appeal  therefrom  may  be  taken 

28  to  the  full  court;    and  in  case  of  such  appeal  the  commissioner  may 

29  revoke  or  suspend  the  right  of  said  petitioning  company  to  do  business 

30  in  the  commonwealth  until  the  final  determination  of  the  question  by 

31  the  full  court. 

1  Section  6.     If  it  appears  to  the  commissioner  that  the  capital  of  ^n^anlesto 

2  a  domestic  company  is  impaired  to  the  extent  of  one  quarter  or  more  pake  good 

iniD£iir€ci 

3  on  the  basis  fixed  in  sections  nine,  ten,  eleven  or  twelve,  and  that  the  capital. 

4  company  can,  with  safety  to  the  public  and  its  policy  holders,  be  allowed  andlnfunctfon 

5  to  continue  in  business,  he  shall  notify  the  company  that  its  capital  is  when'jfu-^''' 

6  legally  subject  to  be  made  good  as  provided  by  section  sixty-nine;  and  1853,^124,  §  g. 

7  if  such  company  shall  not  within  three  months  after  such  notice  satisfy  f^^^-  ili^^^^ 

8  him  that  it  has  fully  made  good  its  capital  or  reduced  it  as  provided  in  J?S|' ^ss.' 1 2.^ 

9  section  se\'enty-one,  or  if  he  is  of  opinion  that  any  domestic  company  p.  s.'uq," 

10  has  exceeded  its  powers  or  has  failed  to  comply  with  any  provision  of  iss7,'2i4, 

11  law,  or  that  its  condition  or  management  is  such  as  to  render  its  further  is94',l22, 

12  transaction  of  business  hazardous  to  the  pubHc  or  to  its  policy  holders  r^l.i'is, 

13  or  to  its  creditors,  or  that  it  has  attempted  or  is  attempting  to  com-  f^Jj  |,,g 

14  promise  ^\^th  its  creditors  on  the  ground  that  it  is  financially  unable  to  |^.,*;.^J;|g  j3j 

15  pay  its  claims  in  full,  or  if,  when  its  assets  are  less  than  its  liabilities,  iis  Mass!  278! 

16  inclusive  of  unearned  premiums,  but  exclusive  of  capital,  if  any,  it  at-  197  Mass!  isi. 

17  tempts,  to  the  disadvantage  of  policy  holders  who  ha^-e  sustained  losses, 

18  to  prefer  or  has  preferred  by  reinsiu"ance  policy  holders  who  have  sus- 

19  tained  no  loss,  or  if  it  is  insolvent,  he  shall  apply  to  the  supreme  judicial 

20  court  for  an  injunction  restraining  it,  in  whole  or  in  part,  from  fui'ther 

21  proceeding  with  its  business.    The  court  may  issue  a  temporary  injunc- 

22  tion  fortln\ith,  and  may  after  a  full  hearing  make  the  injunction  per- 

23  manent,  and  may  appoint  receivers  to  take  possession  of  the  property 

24  and  effects  of  the  company  and  to  settle  its  affairs,  subject  to  such  rules 

25  and  orders  as  the  court  may  prescribe. 

1  Section  7.     If  the  actual  funds  of  a  domestic  life  company,  exclusive  Domestic  life 

2  of  its  capital,  are  not  of  a  net  cash  value  equal  to  its  liabilities,  including  ceasebuSness 

3  the  net  value  of  its  policies,  computed  by  the  rules  of  valuation  estab-  condition!"''' 

4  lished  by  sections  nine  and  eleven,  he  shall  notify  such  company,  its  i^t^'iVg^  155. 

5  officers  and  agents  to  issue  no  new  policies  until  its  funds  become  equal  j|^^'  21*.  |  o- 

6  to  its  habilities.  r.l.  iis,  §9.  1907. 570,  §§  9, 122. 

1  Section  8.     If  upon  examination  or  other  evidence  exhibited  to  him  Commissioner 

2  the  commissioner  is  of  opinion  that  a  company,  or  an  officer  or  agent  fat[m'i's°onaw. 


1950  INSURANCE.  [Chap.  175. 

§§^l'/o"*'  thereof,  has  violated  any  provision  of  this  chapter,  he  shall  report  the  3 
G.s.  5s.  §  s  facts  to  the  attorney  general,  who  shall  cause  such  company,  officer  or  4 
p.  s.'ii9,'§i6.   agent  to  be  prosecuted  therefor.  isst,  214,  §  10.  5 

1894,  522,  §  10.  R.  L.  lis,  §10.  1907,  576,  §§  10,  122. 

Computation         SECTION  9.     He  shall  each  vear  compute  the  reserve  liability  on     1 

oi  reserves  .  *       .  n  . 

of  life  com-  December  thirty-first  of  the  preceding  year  of  e\'ery  cornpany  authorized  2 

1858, 177,  §  2.  to  make  insurance  on  li\'es  in  the  commomvealth,  in  accordance  with  3 

p.'s.'ii'j,  §  17.  the  following  rules:  4 

1894!  522!  I  111      First,  The  net  value  on  the  last  day  of  December  of  the  preceding  5 

1899,229,  j.g^j.  p£  ^ji  outstanding  policies  of  life  insurance  in  the  company  issued  6 

R  "l  1 18  1 11  f^efore  January  first,  nineteen  hundred  and  one,   shall  be  computed  7 

JnS?'?-?-  upon  the  basis  of  the  "Combined  Experience"  or  "Actuaries'  Table"  of  8 

1907.5^6.  ^  ..  .   ,     .  „  ^  - 

§§  11, 122.        mortalitv,  with  interest  at  tour  per  cent  per  annum.  9 

i9i2i74;  Second,  The  net  value  on  the  last  day  of  December  of  the  preceding  10 

1920.'  3.33.  year  of  all  outstanding  policies  of  life  insurance  issued  after  the  last  day  11 
220  Mass!  52''  of  December,  nineteen  hundred,  shall  be  computed  upon  the  basis  of  12 
lOp.A. G. 269.  ^j^g  "American  Experience  Table"  of  mortality,  with  interest  at  three  13 
and  one  half  per  cent  per  annum;  but  any  life  company  may  at  any  14 
time  elect  to  reserve  upon  a  three  per  cent  basis,  and  thereupon  its  15 
policies  issued  upon  such  reserve  shall  be  computed  upon  the  basis  of  16 
the  "American  Experience  Table"  of  mortality,  with  interest  at  three  17 
per  cent  per  annum,  and  any  life  company  receiving  premiums  by  weekly  18 
payments  may  elect  for  such  weekly  payment  business  or  any  portion  19 
thereof  to  reserve  upon  any  table  showing  a  higher  rate  of  mortality  ap-  20 
proA'ed  by  the  commissioner.  21 

Third,  In  every  case  in  which  the  actual  premium  charged  for  an  in-  22 
surance  is  less  than  the  net  premium  for  such  insurance,  computed  ac-  23 
cording  to  its  respective  tables  of  mortality  and  rate  of  interest  specified  24 
in  this  section,  the  company  shall  also  be  charged  with  the  value  of  an  25 
annuity,  the  amount  of  which  shall  equal  the  difference  between  the  26 
premium  charged  and  that  required  by  the  rules  set  forth  in  this  section,  27 
and  the  term  of  which  in  years  shall  equal  the  number  of  futiue  annual  28 
payments  due  on  the  insurance  at  the  date  of  the  valuation.  29 

Fourth,  Wien,  from  reports  filed  with  him  or  from  other  e\idence,  30 
the  commissioner  is  satisfied  that  a  company  is  assuming  risks  that  31 
cannot  be  properly  measured  by  the  mortality  tables  specified  in  this  32 
section,  he  may  compute  such  extra  reserve  as  in  his  judgment  is  war-  33 
ranted  by  the  extra  hazard  assumed,  and  he  may  further  in  his  discretion  34 
prescribe  such  table  or  tables  of  mortality,  other  than  those  specified  35 
by  this  section,  as  he  may  deem  necessary  properly  to  measure  such  36 
additional  risks,  with  interest  at  not  less  than  tliree  per  cent  per  annum,  37 
for  the  computation  of  the  net  value  upon  any  special  class  or  classes  of  38 
risks.  39 

Fifth,  The  reserve  liability  for  the  total  and  permanent  disability  pro-  40 
vision  incorporated  in  policies  under  section  twenty-four  sliall  be  com-  41 
puted  on  the  basis  of  "Hunter's  Disability  Table",  or  any  similar  table  42 
appro\'ed  by  the  commissioner,  with  interest  not  exceeding  tlu-ee  and  43 
one  half  per  cent  per  annum;  pro\ided,  that  in  no  case  shall  said  liability  44 
be  less  than  one  half  of  the  net  annual  premium  computed  by  such  table  45 
for  the  disability  benefit.  The  commissioner  may  accept  a  certificate  of  46 
valuation  from  the'  company  for  the  reserve  liability  for  the  total  and  47 
permanent  disability  proAision  if  he  is  satisfied  by  the  use  of  general  48 


Chap.  175.]  insurance.  1951 

49  a\'erages  and  percentages  that  such  reserve  has  been  computed  in  ac- 

50  cordance  with  the  foregoing  rule. 

51  Sixth,  The  value  on  the  last  day  of  December  of  the  preceding  year  of 

52  all  outstanding  annuities  shall  be  computed  on  the  basis  of  "McClintock's 

53  Tables  of  Mortality  among  Annuitants"  or  on  such  higher  table  as  the 

54  commissioner  may  prescribe,  with  interest  at  not  more  than  foiu-  per 

55  cent  per  annum;   provided,  that  annuities  issued  prior  to  January  first, 

56  nineteen  hundred  and  seven,  and  annuities  deferred  ten  or  more  years 

57  and  written  in  connection  with  life,  endowment  or  term  insurance  shall 
5S  be  valued  on  the  same  mortality  table  from  which  the  consideration  or 
69  premiums  were  computed.    This  basis  of  valuation  shall  be  used  in  con- 

60  nection  with  the  valuation  as  of  December  thirty-first,  nineteen  hundred 

61  and  twenty,  and  all  valuations  thereafter. 

62  Se\'enth,  The  reserve  liability  for  group  insurance  written  as  yearly 

63  renewable  term  insurance  shall  be  computed  on  a  basis  not  lower  than 

64  the  "American  IMen  Mortality  Table",  with  interest  at  not  more  than 

65  three  and  one  half  per  cent  per  annum. 

66  The  aggregate  net  value  so  ascertained  of  all  the  policies  of  any  such 

67  company  shall  be  deemed  its  reserve  liability,  to  pro\'ide  for  which  it 

68  shall  hold  funds  of  an  amount  equal  to  such  net  value  above  all  its  other 

69  liabilities. 

70  All  policies  of  life  insurance  issued  before  July  first,  eighteen  hundred 

71  and  ninety-nine,  by  corporations  formerly  transacting  a  life  insurance 

72  business  on  the  assessment  plan  under  chapter  four  hundred  and  twenty- 

73  one  of  the  acts  of  eighteen  hundred  and  ninety  and  acts  in  amendment 

74  thereof,  and  now  ha\ang  authority  to  do  business  in  the  commonwealth 

75  under  this  chapter,  which  policies  are  in  force  on  December  thirty-first 

76  of  any  year,  and  which  contain  a  provision  for  a  payment  other  than 

77  the  premiinn  stipulated  therein,  and  under  which  the  duration  of  the 

78  premium  payment  is  the  same  as  the  duration  of  the  contract,  except 

79  in  endowment  policies,  shall  be  valued  and  shall  have  a  reserve  main- 

80  tained  thereon  on  the  basis  of  renewable  terra  insurance  as  fixed  by 

81  attained  age  in  accordance  with  this  chapter.    To  the  reserve  liability 

82  determined  as  above  the  coimuissioner  shall  add  the  determinate  con- 

83  tract  reserve  under  any  other  policies  issued  by  said  corporations  before 

84  said  July  first  and  remaining  in  force  on  December  tliirty-first  of  any 

85  year,  and  in  the  absence  of  such  contract  reser\e  sliall  value  them  as 
8()  contracts  proxiding  similar  benefits  are  to  be  valued  under  this  chapter. 

87  But  under  no  policy  shall  a  greater  aggregate  reserve  liability  be  cliarged 

88  than  is  otherwise  required  by  this  section.    All  policies  of  life  insurance 

89  issued  by  any  such  corporation  subsequent  to  July  first,  eighteen  hundred 

90  and  ninety-nine,  including  those  which  contain  a  provision  for  a  pay- 

91  ment  other  than  the  premiums  specified  therein,  shall  be  valued  and 

92  a  reserve  maintained  thereon  according  to  this  section;  but  all  such 

93  policies  issued  by  said  corporations  prior  to  January  first,  nineteen 
91  hundred  and  six,  shall  be  valued  taking  the  first  year  as  one  year 
95  term  insurance. 

1  Section  10.     To  determine  the  liability  upon  its  contracts  of  in-  Computation 

2  surance  of  a  company,  other  than  life,  and  the  amount  such  company  conip,inie3 

3  shall  hold  as  a  reserve  for  reinsurance,  the  commissioner  may,  except  as  lifp.'"'^ 

4  provided  in  section  twelve,  take  fifty  per  cent  of  the  premiums  written  {Isuiir,^' 

5  in  its  policies,  or  the  actual  unearned  portions  of  said  premiums;  but  in  igs3\'2o^'^" 


1952 


INSUR.USrCE. 


[Chap.  175. 


1884,178. 
1887,214.  ! 
1894,  522,  i 
1900,  363. i 
R.  L.  118,  i 
1903,  223. 
1907,576, 
§§11,122. 


respect  to  marine  risks  he  shall  compute  the  liability  thereon  by  charging  6 

ii!  fifty  per  cent  of  the  amount  of  premiums  written  in  its  policies  upon  7 

li.  yearly  risks,  and  upon  risks  covering  more  than  one  passage  not  ter-  S 

minated,  and  the  full  amount  of  premiums  written  in  policies  upon  all  9 

other  marine  risks  not  terminated;   but  in  the  case  of  foreign  fire  and  10 

marine  companies  with  less  than  three  hundred  thousand  dollars  capital,  11 

admitted  to  transact  fire  insurance  only,  the  full  amount  of  premiums  12 

written  in  their  marine  and  inland  navigation  and  transportation  in-  13 

surance  policies  shall  be  charged  as  liabilitj'.  14 


Computation 
of  assets  and 
liabilities. 
1S72,  325,  §  3. 
P.  S.  119,  §  64. 
1887,  214,  §  11. 
1894,  522,  §  11. 
1900,  363,  §  1. 
R.  L.  118,  §  11. 
1903,  223. 
1907,  576, 
5§  11,122. 
1914,505. 
1920,  11)8. 


Computation 
of  reserves  of 
liability 
companies. 
1905,  287. 
1907,  576. 
§§  H.  122. 
1911.315. 
1917,  10. 
S§  1,  3-5. 
3  Op.  A.  G.  i 
i  Op.  A.  G.  2 


Section  1 1 .  Beside  the  reserve  provided  for  in  the  two  preceding  sec- 
tions he  shall,  except  as  provided  in  the  following  section,  charge  to  each 
company  as  a  liability  all  unpaid  losses  and  claims  for  losses,  and  all  other 
debts  and  liabilities,  including  in  the  case  of  a  stock  company  its  capital 
stock.  He  shall  allow  to  the  credit  of  a  company  in  the  account  of  its 
financial  condition  only  such  assets  as  are  available  for  the  payment  of 
losses  in  this  commonwealth,  including  all  assets  deposited  with  officers 
of  other  states  or  countries  for  the  security  of  the  policy  holders  of  such 
company;  but  no  holding  or  parcel  of  real  estate  shall  be  given  a  higher 
value  than  would  be  adequate  to  yield  at  three  per  cent  annual  interest 
the  average  amount  of  its  net  rental  for  three  years  next  preceding,  ex- 
cept that  if  a  company  shows  to  his  satisfaction  that  the  actual  value  of 
any  of  its  real  estate  is  greater  than  the  value  so  ascertained,  then  the 
actual  value  of  the  said  real  estate  as  determined  by  the  commissioner 
shall  be  allowed. 

He  shall  not  allow  stockholders'  obligations  of  any  description  as 
part  of  the  assets  or  capital  of  any  stock  company,  unless  secured  by 
sufficient  approved  collateral. 

He  may  value  all  bonds  or  other  evidences  of  debt  having  a  fixed 
term  and  rate  held  by  a  life  company,  if  amply  secured  and  not  in  de- 
fault as  to  principal  or  interest,  as  follows:  if  purchased  at  par,  at 
the  par  value;  if  purchased  above  or  below  par,  on  the  basis  of  the 
purchase  price  adjusted  so  as  to  bring  the  value  to  par  at  maturity  and 
so  as  to  yield  meantime  the  effective  rate  of  interest  at  which  the  pur- 
chase was  made;  provided,  that  the  purchase  price  shall  in  no  case 
be  taken  at  a  higher  figure  than  the  actual  market  value  when  pur- 
chased; and  provided,  further,  that  the  commissioner  shall  have  full 
discretion  in  determining  the  method  of  calculating  values  according 
to  the  foregoing  rule,  and  the  values  found  by  him  in  accordance  with 
such  method  shall  be  final  and  binding;  provided,  also,  that  any  such 
company  may  return  such  bonds  or  other  evidences  of  debt  at  their 
market  value  or  their  book  value,  but  in  no  event  at  an  aggregate  value 
exceeding  the  aggregate  of  the  values  calculated  according  to  the  fore- 
going rule. 

Section  12.  The  commissioner  shall  each  j'ear  compute  the  reserve 
required  of  liability  companies  for  outstanding  losses  under  insurance 
against  loss  or  damage  from  accident  to  or  injuries  suffered  by  an  em- 
ployee or  other  person,  for  which  the  insured  is  liable,  as  follows: 

1.  For  all  liability  suits  being  defended  untler  policies  written  more 
than  — 

(a)  Ten  years  prior  to  the  date  as  of  which  the  financial  statement 
required  by  section  twenty-five  is  made,  fifteen  hundred  dollars  for  each 
suit. 


1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

1 
2 

3 
4 
5 
6 

7 
8 
9 


Chap.  175.]  insur-USTce.                                                         1953 

10  (6)  Five  and  less  than  ten  years  prior  to  said  date,  one  thousand 

11  dollars  for  each  suit. 

12  (c)  Three  and  less  than  five  years  prior  to  said  date,  eight  hundred 

13  and  fifty  dollars  for  each  suit. 

14  2.  For  all  Hability  policies  written  during  the  three  years  immedi- 

15  ately  preceding  said  date,  such  reserve  shall  be  sixty  per  cent  of  the 

16  earned  liability  premiums  of  each  of  the  said  three  years,  less  all  loss 

17  and  loss  expense  pajiuents  made  under  liability  policies  written  in  the 

18  corresponding  years;    but  in  any  event  the  reserve  shall,  for  the  first 

19  of  the  said  three  years,  be  not  less  than  seven  hundred  and  fifty  dollars 

20  for  each  outstanding  liability  suit  on  said  year's  policies. 

21  3.  For  all  compensation  claims  under  policies  wTitten  more  than  three 

22  years  prior  to  said  date,  the  present  values  at  four  per  cent  interest  of  the 

23  determined  and  the  estimated  future  payments. 

24  4.  For  all  compensation  claims  under  policies  \sTitten  in  the  three 

25  years  immediately  preceding  said  date,  the  said  reserve  shall  be  sixty- 

26  five  per  cent  of  the  earned  compensation  premiums  of  each  of  the  said 

27  three  years,  less  all  loss  and  loss  expense  pajTnents  made  in  connection 

28  with  such  claims  under  policies  written  in  the  corresponding  years;  but 

29  in  any  event  in  the  case  of  the  first  year  of  any  such  three  year  period 

30  the  reserve  shall  be  not  less  than  the  present  value  at  four  per  cent 

31  interest  of  the  determined  and  the  estimated   unpaid  compensation 

32  claims  under  policies  written  during  that  year. 

33  All  unallocated  liability  loss  expense  pa>^nents  made  in  a  given  cal- 

34  endar  year  subsequent  to  the  first  four  years  in  which  an  insurer  has 

35  been  issuing  liability  policies  shall  be  distributed  as  follows:  thirty- 

36  five  per  cent  shall  be  charged  to  the  policies  written  in  that  year,  forty 

37  per  cent  to  the  policies  MTitten  in  the  preceding  year,  ten  per  cent  to 

38  the  policies  written  in  the  second  year  preceding,  ten  per  cent  to  the 

39  policies  written  in  the  third  year  preceding,  and  five  per  cent  to  the 

40  policies  written  in  the  fourth  year  preceding;  and  such  payments  made 

41  in  each  of  the  first  four  calendar  years  in  which  an  insurer  issues  liability 

42  policies  shall  be  distributed  as  follows:    in  the  first  calendar  year  one 

43  hundred  per  cent  shall  be  charged  to  the  policies  WTitten  in  that  year, 

44  in  the  second  calendar  year  fifty  per  cent  shall  be  charged  to  the  poli- 

45  cies  written  in  that  year,  and  fifty  per  cent  to  the  policies  written  in 

46  the  preceding  year;    in  the  third  calendar  year  forty  per  cent  shall  be 

47  charged  to  the  policies  written  in  that  year,  forty  per  cent  to  the 

48  policies  written  in  the  preceding  year,  and  twenty  per  cent  to  the  poli- 

49  cies  written  in  the  second  year  preceding;  and  in  the  fourth  calendar 

50  year  thirty-five  per  cent  shall  be  charged  to  the  policies  wTitten  in  that 

51  year,  forty  per  cent  to  the  policies  written  in  the  preceding  year,  fif- 

52  teen  per  cent  to  the  policies  written  in  the  second  year  preceding,  and 

53  ten  per  cent  to  the  policies  written  in  the  third  year  preceding,  and  a 

54  schedule  showing  such  distribution  shall  be    included  in  the  annual 

55  statement. 

56  All  unallocated  compensation  loss  expense  payments  made  in  a  given 

57  calendar  year  subsequent  to  the  first  three  years  in  which  an  insurer 

58  has  been  issuing  compensation  policies  shall  be  distributed  as  follows: 

59  forty  per  cent  shall  be  charged  to  the  policies  written  in  that  year, 

60  forty-five  per  cent  to  the  policies  written  in  the  preceding  year,  ten 

61  per  cent  to  the  policies  written  in  the  second  year  preceding,  and  five 

62  per  cent  to  the  policies  written  in  the  third  year  preceding;  and  such 

63  payments  made  in  each  of  the  first  three  calendar  years  in  which  an 


1954 


INSUE.«sTCE. 


[Cli-\P.    175. 


insurer  issues  compensation  policies  shall  be  distributed  as  follows:  64 
in  the  first  calendar  year  one  hundred  per  cent  shall  be  charged  to  the  65 
policies  ■RTitten  in  that  year;  in  the  second  calendar  year  fifty  per  cent  66 
shall  be  charged  to  the  policies  written  in  that  year  and  fifty  per  cent  67 
to  the  policies  written  in  the  preceding  year;  in  the  third  calendar  68 
year  forty-five  per  cent  shall  be  charged  to  the  policies  -ttTitten  in  that  69 
year,  forty-fi\'e  per  cent  to  the  policies  wTitten  in  the  preceding  year,  70 
and  ten  per  cent  to  the  policies  written  in  the  second  5'ear  preceding;  71 
and  a  schedule  showing  such  distribution  shall  be  included  in  the  annual  72 
statement.  73 

Whenever,  in  the  judgment  of  the  commissioner,  the  liability  or  com-  74 
pensation  loss  reserves  of  any  insurer  calculated  in  accordance  with  the  75 
foregoing  provisions  are  inadequate,  he  may  require  such  insurer  to  76 
maintain  additional  reserves  based  upon  estimated  individual  claims  77 
or  otherwise.  78 

Every  company  writing  liability  or  compensation  policies  shall  in-  79 
elude  in  the  annual  statement  recjuired  by  section  twenty-fi\-e  a  schedule  80 
of  its  experience  thereunder  in  such  form  as  the  commissioner  may  81 
prescribe.  .  82 


Examination 
for  increase 
or  reduction 
of  capital. 
1875,  27,  §  3. 
1878,  35,  §  3. 
P.  S.  119, 
§§67,71. 
1887,  214.  §  12. 
1894.  522,  §  12. 
R.  L.  118,  §  12. 


Section  13.     The  commissioner  shall,  upon  application,  examine  the  1 

proceedings  of  domestic  companies  to  increase  or  reduce  their  capital  2 

stock,  and,  if  found  conformable  to  law,  shall  endorse  certificates  thereof,  3 

and  shall  issue  certificates  of  authority  to  such  companies  to  transact  4 

business  upon  such  increased  or  reduced  capital  as  provided  by  sections  5 

seventy  and  seventy-one.                            i907,  576,  §§  12, 122.  6 


Collection  of 

charges  and 

fees. 

G.  S.  58,  §  64, 

1867,  267, 

§§  4-6. 

1870,  349,  §  8. 

1871.297,  §  5. 

1878,35,  I  4; 

36,  §  2. 

P.  S.  119,  §§S 

18,  71,  157.  20: 

209. 

1884,  55. 

1887.  214, 

§§  15,24,71, 

91,96. 

1894,  19:  522, 

§§  15,  24,  71, 

91,96. 

1897,  67,  §  2. 

R.  L.  118. 

§§  15,88,96. 

1902. 106. 

1906,271,  §  7. 

1907,  57U. 

§§  15,93,  101. 
122 

1908,  170. 
1911,429, 
§§  1,4. 
1917,  164,  §  1. 
1918,71. 
1919,38, 

§  1;46. 
1920,  326. 


Section  14.  He  shall  collect  and  pay  to  the  commonwealth  charges  1 
and  fees  as  follows:  for  valuation  of  life  policies  of  a  domestic  company,  2 
two  and  one  half  mills  for  each  thousand  dollars  of  insurance;  for  each  3 
examination  prior  to  granting  a  license  or  a  certificate  of  authority  to  4 
issue  policies  of  insurance  or  annuity  or  pure  endo\\Tnent  contracts  as  5 
pro\'ided  in  sections  four  and  thirty-two,  thirty  dollars;  for  filing  copy  6 
of  charter  or  deed  of  settlement  of  each  foreign  company  under  section  7 
one  hundred  and  fifty-one,  thirty  dollars;  and  for  filing  financial  state-  8 
ment  with  application  for  admission  under  section  one  hundred  and  9 
fifty-one  and  for  each  annual  statement  under  section  twenty-five,  10 
twenty  dollars ;  for  each  license  or  renewal  thereof  to  a  special  insurance  1 1 
broker  under  section  one  hundred  and  sixty-eight,  twenty  dollars;  for  12 
each  license  or  renewal  thereof  to  an  insurance  broker  under  section  one  13 
hundred  and  sixty-six,  ten  dollars;  for  each  license  or  renewal  thereof  14 
to  an  insurance  agent  of  a  foreign  company  under  section  one  hundred  15 
and  sixty-tliree,  two  dollars;  for  each  license  or  renewal  thereof  to  an  16 
adjuster  of  fire  losses  under  section  one  hundred  and  seventy-two,  two  17 
dollars;  for  each  certificate  of  the  valuation  of  the  policies  of  any  life  18 
company  and  for  each  certificate  of  the  examination,  condition  or  quali-  19 
fication  of  a  company,  two  dollai-s;  for  each  certificate  issued  under  sec-  20 
tion  sixteen,  two  dollars;  for  each  service  of  lawful  process  upon  him  as  21 
attorney,  under  section  one  huntlred  and  fifty-one,  two  dollars;  for  each  22 
copy  of  any  paper  on  file  in  his  office,  twelve  cents  a  page  and  one  dollar  23 
for  certifying  the  same;  and  all  other  fees  and  charges  due  and  payable  24 
to  the  commonwealth  for  am-  official  act  or  service  of  the  commissioner.  25 


Chap.  175.]  instjr.wjce.  1955 

1  Section  15.     He  shall  annually,  in  December,  furnish  each  company  Blanks  for 

2  two  or  more  blanks  in  form  adapted  for  its  annual  statement.  men"s. 

1S37,  192,  §  4.  G.  S.  58.  §  7.  1889,  451,  §  8. 

1838.  178,  §3.  P.  S.  119,  §19.  1S94,  522,  §  16. 

1849,  104,  I  6.  1883,  33,  §  3.  1897,  65. 

1856,  252,  §  8.  1887,  214,  §  16.  R.  L.  118,  §  16. 

1858,  170,  §  2.  1888,  199,  §  3.  1907,  576,  §|  16,  122. 

1  Section  16.     He  shall  preserve  in  a  permanent  form  a  record  of  his  Record  of 

2  proceedings,  including  a  concise  statement  of  the  result  of  official  ex-  certflcatS' 

3  aminations  of  companies.  coun  ° '" 

4  He  shall  furnish,  when  required  for  evidence  in  court,  certificates,  ^^^'  H^',^^- 

5  under  seal  of  the  division  of  insurance,  relative  to  the  authority  of  an  p.'s.ini,  §20^ 

6  insurance  agent,  broker  or  company,  or  an  adjuster  of  fire  losses,  or  a  1894!  522!  §  17! 

7  fraternal  benefit  society,  to  transact  business  in  the  commonwealth  on  1007;  lie'.    ^  ' 

8  any  particular  date  or  for  any  specified  period,  and  such  certificates  shall  iIui'm^'soo, 

9  be  received  by  the  courts  in  lieu  of  the  testimony  of  the  commissioner  or  ^^  *^'  *"■ 
10  his  representative. 

1  Section  17.     He  shall  annually,  and  as  early  as  is  consistent  with  Annual  report. 

2  full  and  accurate  preparation,  make  a  report  to  the  general  court  of  iIm',  227, 1 4'; 

3  his  official  transactions,  and  shall  include  therein  a  report  of  the  condi-  f^/j^^'^'^' 

4  tion  of  the  receiverships  of  insolvent  companies;  an  exhibit  of  the  finan-  }|?|'  ^^4'  |  g"' 

5  cial  condition  and  business  transactions  of  the  several  companies  as  dis-  5f^j?'?^^' 

6  closed  by  official  examinations  of  the  same  or  by  their  annual  statements,  is.57',  40._§  s. 

7  abstracts  of  which  statements,  with  his  valuation  of  life  policies,  shall  g.^s.'5s,''§  10. 

8  appear  therein;   and  such  other  information  and  comments  relative  to  ^sii,^2u.\^i7. 

9  insurance  and  the  public  interest  therein  as  he  thinks  proper.  ^ ''l!  iil]  1 17! 

10  The  annual  report  of  the  commissioner  on  fire  and  marine  insurance  l\°^j^lfi 

11  matters  shall  contain  the  laws  enacted  on  those  subjects  in  the  year  of  ion. '51. 

12  the  report,  and  his  annual  report  on  life  and  miscellaneous  insurance 

13  matters  shall  contain  the  laws  enacted  on  those  subjects  in  the  year  of 

14  the  report. 

provisions  common  to  foreign  and  domestic  companies. 

1  Section  18.     Every  company  shall  conduct  its  business  in  the  com-  Companies  to 

2  monwealth  in  its  corporate  name,  and  all  policies  and  contracts,  other  porai'e™ame. 

3  than  contracts  of  corporate  suretyship,  issued  by  it,  shall,  except  as  to^'be'pX 

4  pro\'ided  in  section  fifty-six  of  chapter  one  hundred  and  fifty-two,  be  ^^^^^  ^""^ 

5  headed  or  entitled  only  by  such  name.  1853,3.33,  §  1. 

6  When  any  such  company  publishes  its  assets  it  shall  in  the  same  1856!  252]  §  '5'. 

7  connection  and  with  equal  conspicuousness  publish  its  liabilities,  both  1S7V.87; 

8  computed  on  the  basis  allowed  for  its  annual  statements,  and  any  publi-  R.s.'iin. 

9  cation  purporting  to  show  its  capital  shall  exliibit  only  the  amount  of  iss7!2i4;°' 

10  such  capital  as  has  been  actually  paid  in  cash.     Such  publications  shall  flg^^'g',""- 

11  be  held  to  include  all  policies,  renewals,  signs,  circulars,  cards  or  other  f.MV^'i°- 

12  means  by  which  public  announcements  are  made.  §§'  is,  106. 

13  A  company  or  an  officer  or  agent  thereof  who  issues  or  circulates  ad-  §§  is.'^ioo,  122. 

14  vertisements  in  violation  of  this  section  shall  be  punished  by  a  fine  of  ''■"-•  ^3"- 

15  not  less  than  fiftv  nor  more  than  five  hundred  dollars. 


1  Section  19.     Every  company  shall  be  liable  to  taxation  by  any  gen-  Returns  for 

2  eral  law  taxing  insurance  companies,  and  it  shall  by  its  proper  officers  of  ta"s°" 

3  make  to  the  commissioner  of  corporations  and  taxation  the  returns  and  l^U',  I'lvf  §^13. 


1956 


INSURANCE. 


[Chap.  175. 


R  s^  37,  statements  of  its  business  and  affairs  required  by  law  for  the  assessment    4 

is3iT'28i.  §  21.  of  such  taxes,  and  thereupon  its  officers  and  agents  may  be  examined  on     5 
1856, 252,'  1 7. '  Oath  by  the  officer  to  whom  such  returns  are  to  be  made.     g.  s.  ss,  §  19.        6 

1871,297.  §7.      p.  .S.  119,  §45.       1894,522,119.      1907,  576.  §§  19,  122. 
1872,  325.  §5.      1887,  214,  §  19.       R.  L.  118,  §  19.       1919,  350,  §§  52,  S3. 


Reinsurance. 
1854,  453,  §  7. 
1874,  109. 
P.  S.  119. 
§  152. 

1883,33,  5  1. 
1884,  120,  s  1. 
1887,214, 
§§  20,  72,  84. 
1891,368. 
1892.47. 

1894,  137.  §  1 : 
522,  II  20,  72, 
84. 

1895,  59,  §  1. 
1898,  537. 

R. L.  118, 
|§  20,  72,  78, 
S4. 

1907,  576, 
§§  20.  72,  84, 
89,  122. 
1909,  345. 
1914,448, 
H  1.  2. 

1915,  178,  §  3. 
1919,114. 
1920,  288. 

1  Op.  A.  G.  25, 
504.  573. 

2  Op.  A.  G. 
521. 

Op.A.  G. 
(1917)  13. 


1884,  120,  §  2. 
1887,214,5102. 
1894,522,1102. 
R.L.  118, 
§102. 


Section  20.  Any  company,  except  as  herein  provided,  may  reinsure  1 
in  any  other  company  any  part  or  all  of  any  risks  assumed  by  it,  and  2 
shall  file  ■n'ith  the  amiual  statement  required  by  section  twenty-five  and  .3 
at  such  other  times  as  the  commissioner  may  require,  schedules  of  all  4 
reinsurance.  5 

Such  reinsurance  shall  not  reduce  the  taxes  to  be  paid  by  the  ceding  6 
company,  nor,  if  a  life  company,  shall  it  reduce  the  reserve  to  be  charged  7 
to  it,  unless  effected  with  a  company  authorized  to  issue  policies  in  the  8 
commonwealth  covering  risks  of  the  same  kinds  as  those  reinsured.  9 
Such  reinsurance  shall  not  reduce  the  reserve  or  other  liability  to  be  10 
charged  to  the  ceding  company,  other  than  life,  unless  (a)  it  is  effected  11 
with  a  company  authorized  in  the  commonwealth  as  aforesaid,  or  (6)  12 
with  a  company  similarly  authorized  in  another  state  or  territory  of  the  13 
United  States  conforming  to  the  same  standard  of  solvency  and  fulfilling  14 
the  same  statutory-  or  departmental  regulations  which  would  be  required  1.5 
of  such  company  if,  at  the  time  such  reinsurance  is  effected,  it  were  16 
authorized  as  aforesaid  in  the  commonwealth;  pro\'ided,  that  any  con-  17 
tract  of  reinsurance,  other  than  life,  made  by  any  domestic  company  18 
or  by  any  company  incorporated  in  a  foreign  country  and  ha^^ng  its  19 
principal  office  in  the  commonwealth,  ceding  more  than  se\enty-five  per  20 
cent  of  its  total  outstanding  risks,  shall  be  subject  to  the  written  approval  21 
of  the  commissioner;  and  pro\'ided,  further,  that  no  domestic  life  com-  22 
pany  shall  reinsure  its  risks  without  the  ^\Titten  permission  of  the  com-  23 
missioner,  but  may  reinsure  not  exceeding  one  half  of  an  indi\-idual  risk.  24 

When  reinsurance  is  so  effected  the  ceding  company,  other  than  a  25 
life  company,  shall  thereafter  be  charged  on  the  gross  premium  basis  26 
with  an  unearned  premium  liability,  and  a  life  company  shall  be  charged  27 
thereafter  with  a  reserve  liability,  both  said  unearned  premium  and  28 
reserve  liability  representing  the  proportion  of  the  obligation  retained  29 
by  it,  and  the  company  with  which  the  reinsurance  is  effected  shall  be  30 
charged  thereafter  in  like  maimer  with  the  proportion  of  the  obligation  31 
assumed  by  it.  Both  the  companies  shall  together  carry  the  same  32 
unearned  premium  liability  or  reserve  which  the  ceding  company  would  33 
ha\'e  carried  had  it  not  reinsured  the  risk.  34 

Reinsurance  of  risks  shall  not  be  held  to  be  within  the  provisions  of  law  35 
requiring  the  use  of  standard  forms  of  policies.  A  company  ceding  re-  36 
insurance  to  a  mutual  company  shall  not,  unless  the  contract  of  rein-  37 
surance  so  pro\'ides,  become  thereby  a  member  of  the  company  accepting  38 
such  reinsurance  or  be  entitled  to  any  di^^dend  or  expiration  return  of  39 
premium  or  be  subject  to  liability  to  assessment.  40 

This  section  shall  not  permit  a  ceding  company,  other  than  life,  to  41 
receive  through  the  cession  of  the  whole  of  any  of  its  risks  any  advantage  42 
in  respect  to  its  unearned  premium  reserve,  or,  if  a  life  company,  in  re-  43 
spect  to  the  net  value  of  its  policies  involving  life  contingencies  that  44 
would  reduce  the  same  below  the  actual  amount  thereof.  45 

A  company  and  any  officer  or  agent  thereof  effecting  or  acting  in  the  46 
negotiation  of  reinsurance  in  violation  of  this  section  shall  severally  be  47 
punished  by  a  fine  of  five  hundred  dollars.  i907,576,§§  m,  122.  48 


Chap.  175.]  insueance.  1957 

1  Section  21.     No  company  shall  insure  in  a  single  risk  wherever  lo-  Limit  of 

2  cated,  excepting  transportation,  inland  navigation  and  ocean  and  coast-  i8'f7!'iTo!'§  7. 

3  wise  marine  risks,  a  larger  amount  than  one  tenth  of  its  net  assets,  unless  fg^f,  453,^7; 

4  it  has  reinsured,  as  provided  in  the  preceding  section,  the  excess  over  said  J|-^|'  Ipvy^- 

5  limit  to  take  efFect  simultaneously  with  the  original  contract;    but  a  fg^^^  V^' ^  ^*^' 

6  domestic  mutual  boiler  company  may,  except  as  provided  in  section  fifty-  §§"26,  loi 

7  four,  insure  in  a  single  risk  an  amount  not  exceeding  one  fourth  of  its  1892U7. ' 

8  net  assets.     A  company  violating  this  section  shall  be  punished  by  a  sll^fkSos. 

9  fine  of  five  hundred  dollars. 

1895.  59.  §1.  1907.  576,  §§  20,  112,  122.  181  Mass.  522. 

1898,  638,  §  3.  1916,  21,  §  3.  1  Op.  A.  G.  315,  573. 

R.  L.  118,  §§  20.  103,  1919,114,5  1.  2  Op.  A.  G.  34. 

1  Section  22.     No  company  and  no  officer  or  agent  thereof  shall  make,  Certain 

2  issue  or  deliver  any  policy  of  insurance  or  any  annuity  or  pure  endow-  poii'cie3°void. 

3  ment  contract  containing  any  condition,  stipulation  or  agreement  depriv-  q  ^s'l8^§\6" 

4  ing  the  courts  of  the  commonwealth  of  jurisdiction  of  actions  against  it ;  ^^f^  i^'u  Vis 

5  limiting  the  time  for  commencing  actions  against  it  to  a  period  of  less  ^set'.  522!  1 21;: 

6  than  two  years  from  the  time  when  the  cause  of  action  accrues;  making  1907,'  576,' 

7  any  person  appointed  and  licensed  as  its  agent  the  agent  of  the  applicant  i9io,'493T§  2, 

8  or  insured  or  holder  of  the  policy  or  contract  for  any  purpose;   or  pro-  i86Vass:4i3. 

9  viding  that  no  person  shall  be  deemed  an  agent  of  the  company  unless 

10  authorized  by  the  company  in  writing.     Any  such  condition,  stipulation 

11  or  agreement  shall  be  void. 

1  Section  23.    No  life  company,  and  no  oflBcer  or  agent  thereof,  after  Life  company 

2  notice  as  pro\dded  in  sections  five  and  seven,  shall  issue  new  policies  of  nesTaft'er    '" 

3  life  or  endo'R'ment  insurance  or  annuitv  or  pure  endo^^•ment  contracts  °°'i^^i!l?i"., 

4  until  its  funds  have  become  equal  to  its  liabilities  and  it  has  complied  that  funds 

5  With  saici  sections,  and  has  obtained  from  tlie  commissioner  a  certificate  ciept. 

6  to  that  effect,  with  authority  to  resume  business.     Whoever  violates  p.  s.'iio.' 

7  this  section  shall  forfeit  not  more  than  one  thousand  dollars.  i887.'2i4, 

1894,  522,  §§  66,  104.  R.  L.  113,  §§  66,  104.  1907,  576,  |§  67.  113,  122.  §§66,104. 

1  Section  24.    A  domestic  life  company,  notwithstanding  any  limita-  PoUcies  of 

2  tions  of  its  charter  to  the  contrary,  and  any  foreign  life  company  ad-  pinie°s'^ay 

3  mitted  to  this  commonwealth,  if  it  is  permitted  so  to  do  by  its  charter  tot'ai''etc°'^ 

4  or  by  the  state  where  it  is  incorporated,  whether  or  not  it  has  a  capital  disability  and 

_  ,  ,  ^        ,       ^       ,.    .  ..  p  ,  .■^-  accidental 

5  stock,   may  incorporate  in  its  policies  pro\asions  tor  the  waiver  of  death  benefits. 

6  premiums  or  for  the  granting  of  special  surrender  values  therefor  in  lom,  ih'. 

7  the  event  that  the  insured,  or  either  of  them,  thereunder  shall  from  1920]  327.  §  2. 

8  any  cause  become  totally  and  permanently  disabled.    These  proAisions  ^^^  ^*^^  ^"' 

9  shall  state  the  special  benefits  to  be  granted  thereunder  and  the  cost 

10  thereof  to  tJie  insured,  and  shall  define  what  shall  constitute  total  and 

11  permanent  disabihty;    and  any  such  company  may  pro^^de  for  the 

12  pa.-\Tnent  of  a  larger  sum  if  death  is  caused  by  accident  than  if  it  re- 

13  suits  from  other  causes,  provided  that  the  sum  payable  in  the  e\ent  of 

14  accidental  death  shall  not  exceed  on  any  one  life  three  per  cent  of  the 

15  company's  aggregate  expected  mortality  as  shown  by  its  last  annual 

16  statement  to  the  commissioner.     The  consideration  for  such  special 

17  benefits  shall  be  separately  stated  in  the  policy. 


1958 


INSUK-INCE. 


[Celu>.  175. 


Annual  Statcmenis. 


1. 


I  4. 

S21. 

1; 


Annual  state- 
ments. 

1837,  192, 
§§  1.2. 

1838,  178, 
1842.  9.  ^ 
1849.  104, 

1851,  281, 

1852.  227 
231,  §5;  311, 
§  14. 

1854,  453.  §  37, 
and  lorms. 
1856,  252.  §  S. 
and  forms. 

1859,  146. 
G.  S.  58,  §§  25, 
75,  and  forms. 

1860,  150. 
1862,  181,  §  6, 
and  forms. 
1867,  267, 
§§2,3. 

1870,  349,  §  2. 
P.  S.  119. 
§§  226,  229, 
and  forms. 

1883,  33, §  4. 

1884,  58;  217. 
1887,  214, 
§  96,  and  forms. 
1894,  522,  §  96, 
and  forms. 
R.  L.  lis,  §  90, 
and  forms. 
1907,  576, 
§§  101,  122. 
1919,30. 

1  Op.  A.  G. 
423. 

2  Op.  A.  G, 
381. 


Section  25.  Every  company  shall  annually,  on  or  before  January  1 
fifteenth,  file  with  the  con:imissioner  a  statement  sho^^ang  its  financial  2 
condition  on  December  tliirty-first  of  the  pre\'ious  year,  and  its  busi-  3 
ness  of  that  year.  For  cause  the  commissioner  may  extend  the  time  4 
■\\ithin  which  any  such  statement  may  be  filed,  but  not  to  a  date  later  5 
than  INIarch  first.  But  a  life  company  shall  not  be  required  to  file  that  6 
part  of  its  annual  statement  known  as  the  gain  and  loss  exliibit  until  7 
May  first  following.  8 

Such  annual  statement  shall  be  in  the  form  required  by  the  commis-  9 
sioner.  He  shall  embody  therein,  so  far  as  appropriate  to  the  several  10 
companies,  the  substance  of  the  forms  provided  for  in  this  section,  11 
with  any  additional  inquiries  he  may  require  for  the  purpose  of  eliciting  12 
a  complete  and  accurate  exliibit  of  the  condition  and  transactions  of  the  13 
companies.  The  assets  and  liabilities  shall  be  computed  and  allowed  in  14 
such  statement  in  accordance  with  the  rules  stated  in  sections  nine,  ten,  15 
eleven  and  twelve.  Such  statement  shall  be  subscribed  and  sworn  to  16 
by  the  president  and  secretary,  or,  in  their  absence,  by  two  of  its  princi-  17 
pal  officers.  The  commissioner  may  at  other  times  require  any  such  18 
statements  as  he  may  deem  necessary.  19 

Life  companies  having  both  industrial  and  ordinary  policies  out-  20 
standing  shall  make  two  annual  statements  of  receipts  and  disburse-  21 
ments,  one  of  which  shall  cover  the  industrial  department  and  the  22 
other  the  ordinary  department;  but  the  aggregate  income  and  dis-  23 
bursements  of  each  department  may  be  carried  into  its  appropriate  ac-  24 
count  in  the  statement  of  the  other  department,  and  the  assets  and  25 
liabilities  of  the  company  shall  be  so  entered  in  both  statements  that  26 
each  shall  show  the  company's  entire  assets  and  liabilities.  The  com-  27 
missioner  may  make  such  further  rules  as  he  shall  deem  necessary  for  28 
carr.^'ing  out  as  completely  as  possible  the  separation  of  accounts  in-  29 
tended  by  this  section.  30 

Such  statement  of  a  company  of  a  foreign  country  shall  embrace  only  31 
its  business  and  condition  in  the  United  States,  and  shall  be  subscribed  32 
and  sworn  to  by  its  resident  manager,  or  if  its  resident  manager  is  a  33 
corporation,  by  the  president  and  secretary  or  other  duly  authorized  34 
officers  thereof.  35 

The  annual  statement  made  to  the  commissioner,  pursuant  to  this  36 
section,  shall  at  least  include  the  substance  of  that  required  by  the  37 
following  forms:  38 

FoEM  A.  —  Fire,  Marine,  and  Fire  and  Marine  Companies. 

Stock  companies,  except  United  States  branches  of  companies  of  foreign  coun- 
tries. 1.  Name  of  company.  2.  Location  of  home  office.  3.  Date  of  incor- 
poration. 4.  Date  on  which  the  company  commenced  business.  5.  Names  of 
officers  and  directors.  6.  Amount  of  paid-up  capital.  7.  Amount  of  ledger 
assets  December  thirty-first  of  the  previous  year. 

Income.  ■ —  8.  Gross  and  net  premiums  on  policies  ■WTitten  or  renewed.  9. 
Gross  amount  received  from  interest  and  rents.  10.  Gross  profit  on  the  sale  or 
maturity  of  ledger  assets.  11.  Gross  increase  in  the  book  value  of  ledger  assets. 
12.  Income  from  all  other  sources. 

Disbursements.  —  13.  Gross  and  net  amounts  paid  policy  holders  for  losses. 
14.  Dividends  to  stockholders.  15.  Commissions  or  brokerage.  16.  Salaries 
of  officers  and  employees.  17.  Rents.  IS.  Repairs  and  expenses  on  real  estate. 
19.  Taxes  on  real  estate.  20.  Insurance  department  fees  and  taxes.  21.  Gross 
loss  on  the  sale  or  maturity  of  ledger  assets.  22.  Gross  decrease  in  the  book 
value  of  ledger  assets.    23.  All  other  disbursements. 


CiL\p.  175.]  msuK-usTCE.  1959 

Assets.  —  24.  Book  and  market  value  of  real  estate  owned.  25.  Amount 
loaned  on  mortgages  on  real  estate.  26.  Loans  secured  by  pledge  of  collateral. 
27.  Book  and  market  value  of  stocks  and  bonds  owned.  28.  Cash  in  the  com- 
pany's office  and  in  bank.  29.  Agents'  balances,  stating  separately  the  amount 
of  the  same  which  represents  business  WTitten  prior  to  October  first  next  preced- 
ing the  date  of  the  statement.  30.  Bills  receivable.  31.  Interest  and  rents  due 
and  accrued.  32.  All  other  assets.  From  the  assets  of  the  company  there  shall 
be  deducted:  (a)  company's  stock  owned  and  loans  on  the  same;  (6)  agents' 
balances  representing  business  written  prior  to  October  first;  (c)  bills  receivable 
past  due  taken  for  marine,  inland  and  fire  risks;  (rf)  loans  on  personal  security; 
(e)  the  e.xcess  of  the  book  value  of  ledger  assets  over  the  market  value ;  (/)  and 
such  other  items  as  the  commissioner  may  deem  expedient. 

Liabilities.  —  33.  Gross  and  net  unpaid  losses  and  claims.  34.  Unearned 
premiums.  35.  Borrowed  money  and  interest  thereon.  36.  All  liabilities,  in- 
cluding the  paid-up  capital.  37.  Surplus  over  all  Uabilities.  3S.  Surplus  to 
policy  holders. 

The  exhibit  of  risks  and  premiums  shall  show  the  gross  amount  of  the  risks  in 
force  on  December  thirty-first  preceding,  the  amount  of  the  risks  written  or 
renewed,  the  amount  terminated,  the  amount  reinsured  and  the  amount  in 
force  on  December  thirty-first  of  the  year  covered  by  the  statement,  and  the 
gross  premiums  on  all  of  the  risks  mentioned  herein. 

Forms  B  .\nd  C.  ■ —  Mutual  Companies  and  United  States  Branches  or 
Companies  of  Foreign  Countries. 

The  form  of  return  required  from  mutual  fire  companies  and  from  the  United 
States  branches  of  fire  companies  of  foreign  countries,  and  from  all  other  com- 
panies except  life  and  those  reporting  under  chapters  one  hundred  and  seventy- 
six  and  one  hundred  and  seventy-seven,  shall  be  the  same  as  outlined  above,  with 
such  modifications  as  the  commissioner  may  deem  necessary  to  make  the  fore- 
going form  applicable  to  the  business  of  such  companies. 

Form  D.  —  Life  Companies. 

L  Name  of  company.  2.  Location  of  home  office.  3.  Date  of  incorporation. 
4.  Date  on  which  the  company  commenced  business.  5.  Names  of  officers  and 
directors.  6.  Amount  of  paid-up  capital.  7.  Amount  of  ledger  assets  Decem- 
ber thirty-first  of  the  previous  year. 

Income.  —  8.  First  year's  premiums  on  original  policies.  9.  Renewal  premi- 
ums. 10.  Gross  amount  received  from  interest  and  rents.  IL  Gross  profit  on  sale 
or  maturity  of  ledger  assets.  12.  Gross  increase  in  the  book  value  of  ledger  assets. 
13.  Income  from  all  other  sources. 

Disbursements.  —  14.  Gross  and  net  amounts  paid  for  losses.  15.  Annuities 
involving  life  contingencies.  16.  Premium  notes  voided  by  lapse.  17.  Sur- 
render values  paid  in  cash.  IS.  Surrender  values  applied  to  pa3anent  of  new  and 
renewal  premiums.  19.  Surrender  values  applied  to  the  purchase  of  paid-up 
insurance  and  annuities.  20.  Dividends  paid  policy  holders  in  cash.  21.  Divi- 
dends applied  to  pay  renewal  premiums.  22.  Dividends  applied  to  purchase 
paid-up  additions  and  annuities.  23.  Investigation  of  claims.  24.  Amount 
paid  on  claims  on  supplementary  contracts  not  involving  life  contingencies. 
25.  Dividends  to  stockholders.  26.  Commissions  and  bonuses  to  agents.  27. 
Commuted  renewal  commissions.  28.  Salaries  and  allowances  to  agents  and 
agencies.  29.  Agency  supervision.  30.  Medical  examiners' fees.  31.  Inspection 
of  risks.  32.  Salaries  and  all  other  compensation  of  officers.  33.  Rents.  34. 
■  Advertising,  printing,  stationery  and  postage.  35.  Legal  expenses.  36.  Furni- 
ture, fixtures  and  safes.  37.  Insurance  taxes,  license  and  department  fees.  38. 
Taxes  on  real  estate.  39.  Repairs  and  expenses  on  real  estate.  40.  Gross  loss 
on  sale  or  maturity  of  ledger  assets.  41.  Gross  decrease  in  book  value  of  ledger 
assets.    42.  All  other  disbursements. 

Assets.  —  43.  Book  and  market  value  of  real  estate  owned.  44.  Amount 
loaned  on  mortgages  on  real  estate.  45.  Loans  secured  by  pledge  of  collateral. 
46.  Loans  made  to  policy  holders  on  the  company's  policies  assigned  as  col- 
lateral. 47.  Book  and  market  value  of  stocks  and  bonds  owned.  48.  Deposits 
in  trust  companies  and  banks  on  interest.  49.  Deposits  in  trust  companies  and 
banks  not  on  interest.  50.  Cash  in  company's  office.  51.  Agents'  balances. 
52.  Bills  receivable.  53.  Interest  and  rents  due  and  accrued.  54.  Gross  and 
net  uncollected  and  deferred  premiums.    55.  All  other  assets.    From  the  assets 


1960  INSURANCE.  [Chap.  175. 

of  the  company  there  shall  be  deducted:  (n)  company's  stock  o'mied,  and  loans 
on  the  same;  (b)  supplies,  stationery,  printed  matter,  furniture,  fixtures  and 
safes;  (c)  commuted  commissions;  (rf)  agents' debit  balances;  (e)  cash  advanced 
to  or  in  the  hands  of  officers  or  agents;  (/)  loans  on  personal  security;  (g)  bills 
receivable;  (/;)  premium  notes  and  loans  on  pohcies,  and  net  premiums  in  ex- 
cess of  the  net  value  of  their  policies;  (i)  the  excess  of  the  book  value  of  ledger 
assets  over  the  market  value;  (j)  and  such  other  items  as  the  commissioner  may 
deem  expedient. 

Liabilities.  —  56.  Net  present  value  of  all  outstanding  policies  in  force,  which 
shall  show  the  basis  of  the  computation,  and  the  amount  of  liability  upon  each 
basis,  if  more  than  one  is  used.  57.  Net  value  of  risks  reinsured.  58.  Net  re- 
serve. 59.  Present  value  of  amounts  not  yet  due  on  supplementary  contracts 
not  involved  in  fife  contingencies.  60.  Liability  on  policies  cancelled  and  not 
included  in  the  net  reserve  upon  which  a  surrender  value  may  be  demanded. 
61.  Claims  for  death  losses  due  and  unpaid.  62.  Claims  for  death  losses  in 
process  of  adjustment.  63.  Claims  for  death  losses  reported  on  which  no  proofs 
have  been  received.  64.  Claims  for  matured  endowments  due  and  unpaid.  65. 
Claims  for  death  losses  and  other  policy  claims  resisted  by  the  company.  66. 
The  amount  due  on  annuity  claims  involving  life  contingencies.  67.  Amount 
due  on  supplementary  contracts  not  involved  in  life  contingencies.  6S.  Premi- 
ums paid  in  advance.  69.  Interest  and  rents  paid  in  advance.  70.  Commis- 
sions due  agents  on  premium  notes  when  paid.  71.  Cost  of  collecting  uncol- 
lected and  deferred  premiums  in  excess  of  the  loading  thereon.  72.  Commissions 
to  agents  due  or  accrued.  73.  Salaries,  rents,  office  expenses  and  miscellaneous 
bills  and  accounts  due  or  accrued.  74.  Medical  examiners'  and  legal  fees  due  or 
accrued.  75.  State,  county  and  municipal  taxes  due  or  accrued.  76.  Bor- 
rowed money  and  interest  thereon.  77.  Dividends  or  other  profits  due  policy 
holders,  including  those  contingent  on  outstanding  and  deferred  premiums. 
78.  Dividends  declared  or  apportioned,  payable  to  policy  holders  during  the 
next  calendar  year,  whether  contingent  upon  the  pajonent  of  renewal  premiums 
or  otherwise,  under  annual  dividend  policies.  79.  Dividends  declared  or  appor- 
tioned, payable  to  policy  holders  during  the  next  calendar  year  under  deferred 
dividend  pohcy  contracts.  80.  Amounts  set  apart,  apportioned,  provisionally 
ascertained,  calculated,  declared,  or  held  awaiting  apportionment  upon  deferred 
dividend  policies.  81.  Reserve  or  surplus  funds  not  otherwise  included  in  liabiU- 
ties.    82.  All  other  liabihties,  including  the  paid-up  capital.    83.  Surplus. 

The  annual  statements  of  all  companies  shall  contain  schedules  39 
fm-nishing  the  following  and  such  additional  information  as  the  com-  40 
missioner  may  require,  all  of  which  shall  be  arranged  in  such  form  as  41 
he  may  deem  expedient.  42 

Schedule  of  Real  Estate. 

Part  I.  —  Containing  an  itemized  exhibit  of  the  real  estate  owned,  and  which 
shall  show:  1.  Quantity,  dimensions  and  locations  of  lands,  with  the  size  and 
description  of  buildings,  and  the  nature  of  the  encumbrances  on  the  property,  if 
any.  2.  The  date  acquired.  3.  Name  of  vendor.  4.  Amount  of  encumbrances. 
5.  The  actual  cost  to  the  company,  including  cost  of  acquiring  title,  and,  if  the 
property  was  acquired  by  foreclosure,  such  costs  shall  include  the  amounts  ex- 
pended for  taxes,  repairs  and  improvements  prior  to  the  date  on  which  the  com- 
pany acquired  the  title.  6.  The  book  value.  7.  The  market  value.  8.  The  in- 
crease and  the  decrease  in  the  book  value  during  the  year.  9.  The  gross  rental, 
gross  expenditures  for  repairs  and  expenses,  the  net  income  on  each  piece  of  prop- 
erty for  each  of  the  last  three  years,  and  if  any  portion  of  the  property  is  occupied 
by  the  company  for  its  own  use,  the  rental  value  thereof. 

Part  II.  —  Containing  an  itemized  exhibit  of  the  real  estate  acquired  during 
the  j'ear,  which  shall  show:  1.  Quantity,  dimensions  and  location  of  lands,  with 
size  and  description  of  buildings,  and  nature  of  encumbrances,  if  any.  2.  Date 
of  purchase.    3.  Name  of  vendor.    4.  Cost  to  the  company.    5.  Book  value. 

Part  III.  —  Containing  an  itemized  exhibit  of  all  real  estate  sold  during  the 
year,  which  shall  show:  1.  Quantity,  dimensions  and  location  of  lands,  size  and 
description  of  buildings,  with  nature  of  encumbrances,  if  any.  2.  Date  of  sale. 
3.  Name  of  purchaser.  4.  Consideration.  5.  Cost  to  the  company.  6.  Book 
value  at  time  of  sale.    7.  Profit  and  loss  on  same. 


Ch-vp.  175.]  msuEANCE.  1961 

Schedule  of  Mortgages. 

Containing  an  itemized  exhibit  of  the  mortgage  loans  on  real  estate,  which 
shall  show:  1.  The  company's  number  of  the  mortgage.  2.  The  year  in  which 
the  mortgage  was  given.  3.  The  year  in  which  it  matures.  4.  The  record  of  the 
mortgage,  showing  the  county  or  district,  book  and  page.  5.  Amount  of  princi- 
pal unpaid.  6.  Date  on  which  the  interest  is  due  and  the  rate  per  annum. 
7.  Amount  of  interest  past  due.  8.  Amount  of  interest  accrued.  9.  Value  of 
lands  mortgaged.  10.  Value  of  buildings.  11.  Amount  of  insurance  held  by 
the  company  on  the  buildings.    12.  Location  and  description  of  the  property. 

Schedule  of  Collateral  Loans. 

Containing  an  itemized  exhibit  of  the  loans  on  collateral  securities,  which 
shall  show:  1.  Name  of  the  borrower.  2.  Date,  maturity,  and  rate  of  interest 
on  the  loan.  3.  Description  of  collateral.  4.  Par  value  of  collateral.  5.  Mar- 
ket value  of  collateral.  6.  Rate  used  to  obtain  market  value.  7.  Amount  Ibaned 
thereon.    8.  All  substitutions  of  collateral  during  the  year. 

Schedule  of  Bonds  and  Stocks. 

Part  I.  —  Containing  an  itemized  account  of  the  bonds  owned,  which  shall 
show:  1.  Description  of  the  security.  2.  Year  of  maturity  and  option.  3.  Rate 
of  interest  and  how  paid.  4.  Cost  to  the  company.  5.  Book  value.  6.  Increase 
and  decrease  in  the  book  value  during  the  year.  7.  Par  value.  8.  Market  value. 
9.  Rate  used  to  obtain  the  market  value.    10.  Interest  due  and  accrued. 

Part  II.  —  Containing  an  itemized  exhibit  of  the  stocks  owned,  which  shall 
show:  1.  The  number  of  shares  of  each  stock  owned.  2.  Description  of  the 
security.  3.  Rate  of  dividend  in  each  of  last  three  years.  4.  Cost  to  the  com- 
pany. 5.  Book  value.  6.  Increase  and  decrease  in  the  book  value  during  the 
year.    7.  Par  value.    8.  Market  value.    9.  Rate  used  to  obtain  the  market  value. 

Part  III.  —  Containing  an  itemized  exhibit  of  the  stocks  and  bonds  acquired 
during  the  year,  which  shall  show:  1.  Date  acquired.  2.  Name  of  vendor.  3. 
Cost  to  the  company.    4.  Book  value  of  the  same.    5.  Par  value. 

Part  IV.  —  Containing  an  itemized  exhibit  of  the  stocks  and  bonds  disposed 
of  during  the  year,  which  shall  show:  1.  Date  of  sale.  2.  Name  of  purchaser. 
3.  Consideration.  4.  Par  value.  5.  Cost  to  the  company.  6.  Book  value  at 
date  of  sale.    7.  Profit  or  loss  on  the  same  during  the  year. 

,43      In  addition  to  the  schedules  herein    required,   every  life  company 
44  shall  furnish — 

Schedule  showing  the  largest  balance  carried  in  each  bank  or  trust  company 
during  each  month  of  the  year  covered  by  the  statement. 

Schedule  showing  all  death  claims  resisted  or  compromised  during  the  year 
covered  by  the  statement,  and  all  death  claims  resisted  on  December  thirty-first 
of  said  year,  with  the  reasons  for  contesting  or  resisting  said  claims. 

Schedule  showing  the  salaries,  compensation  and  emoluments,  of  whatever 
amount,  received  during  the  year  covered  by  the  statement  by  the  officers  and 
directors,  and,  when  said  compensation  or  emoluments  amounted  to  more  than 
five  thousand  dollars,  that  received  by  any  person,  firm  or  corporation. 

Schedule  containing  a  gain  and  loss  exhibit,  which  shall  show  the  sources  of 
the  increase  and  the  decrease  in  the  surplus  of  the  company  during  the  year 
covered  by  the  statement. 

Schedule  showing  the  rates  of  annual  dividends  paid  during  the  year  covered 
by  the  statement,  and  the  annual  premiums  per  one  thou.sand  dollars  of  insurance 
at  ages  twenty-five,  thirty-five,  forty-five  and  fifty-five,  at  date  of  issue,  for  each 
kind  and  plan  of  insurance. 

Schedule  showing  the  rates  of  dividends  paid  during  the  year  covered  by  the 
statement  upon  deferred  dividend  policies  completing  their  dividend  periods 
during  said  year,  and  the  annual  premiums  per  one  thousand  dollars  of  insur- 
ance at  ages  twenty-five,  thirty-five,  forty-five  and  fifty-five,  for  each  kind  and 
plan  of  insurance. 

Schedule  showing  the  amounts  set  apart,  apportioned  or  provisionally  ascer- 
tained or  calculated  during  the  year  covered  by  the  statement,  or  held  awaiting 


1962 


INSUR-tNCE. 


[Chap.  175. 


apportionment  on  policies  witli  deferred  dividend  periods  longer  than  one  year, 
and  the  annual  premiums  per  one  thousand  dollars  of  insurance  at  ages  twenty- 
five,  thirty-five,  forty-five  and  fifty-five,  on  each  kind  of  policy  issued. 

Schedule  showing  the  unlisted  assets  held  by  the  company  on  December  thirty- 
first  of  the  year  covered  by  the  statement,  and  which  are  not  entered  in  said  state- 
ment, which  schedule  shall  show:  I.  Description  of  the  property.  2.  Date  ac- 
quired. 3.  Date  dropped  from  the  statement.  4.  Cost  to  the  company.  5. 
Par  value.  6.  Market  value  when  dropped.  7.  Market  value  December  thirty- 
first  of  the  year  covered  by  the  statement.    8.  Reasons  for  dropping  the  same. 

The  commissioner  may  exempt  companies  from  filing  schedules  of  45 
mortgage  loans  on  real  estate,  and  may  as  a  substitute  require  such  46 
other  information  in  respect  to  sucli  in^•estments  as  from  time  to  time  47 
he  shall  deem  to  be  essential  for  determining  their  soundness  as  assets.      48 


Penalty  for 
neglect  to 
make  annual 
statement. 
1837,  192.  §  3. 
1842,9,  §  2. 
1849,  104,  §  5. 
1852,  227,  I  2. 
1854,  453,  §  41. 


Section  26.  A  company  neglecting  to  make  and  file  its  annual  state- 
ment in  the  form  and  within  the  time  provided  by  the  preceding  section 
shall  forfeit  one  hundred  dollars  for  each  day  during  which  such  neglect 
continues,  and,  upon  notice  by  the  commissioner  to  that  effect,  its  au- 
thority to  do  new  business  shall  cease  while  such  default  continues. 


1856,  252,  §  8, 
G.  S.  58,  §  26. 
1867,  267,  §  3. 


1870,  349,  §  3. 

P.  S.  119.  §§  226,  230. 

1887,214,  §§  96,  101. 


1894,522,  §§96,  101. 
R.  L.  lis,  §§96,  101. 
1907,  576,  §§  101,  110,  122. 


Companies 
to  report 
suits. 
1912,  162,  §  1. 


Section 


Every  company  shall  include  in  its  annual  statement 


under  section  twenty-five  a  scliedule  of  all  claims  under  policies  issued  by 
it  to  persons  in  the  commonwealth  which,  during  the  j'ear  covered  by 
the  statement,  have  been  made  the  subject  of  suits  and  also  of  those 
which  at  the  time  of  making  the  statement  are  in  suit.  Such  schedule 
shall  be  in  such  detail  as  the  commissioner  shall  prescribe. 


Special  report 
in  cases  of 
delav,  etc. 
1912,  162,  §  2. 


Section  28.  If,  upon  examination  of  said  schedule  or  upon  com- 
plaint, the  commissioner,  after  investigation  and  hearing,  is  of  the  opinion 
that  a  company  is  unreasonably  and  unfairly  delaying  the  settlement  of 
claims  or  is  unduly  engaging  in  litigation,  he  shall  make  a  special  report 
of  his  findings  thereon  to  the  general  court  at  its  next  session. 


Companies 
subject  to 
this  chapter. 
1835,  147, 
§§1,2. 
R.S.  37, 
§§1,24. 
1851,281.  §  1. 
1854,453,  §  1. 
1856,252,  §  1. 
G.  S.  58,  §  12. 
1872,375,  §  1. 
1873,  167,  §  1, 
P.  S.  119, 
§§22,25. 
1887,  214,  §  2. 
1894,  522,  §  2. 


PROVISIONS   RESPECTING   DOMESTIC   COMPANIES. 

General. 

Section  29.     All  companies  now  or  hereafter  incorporated  or  formed  1 

by  authority  of  any  general  or  special  law  of  the  commonwealth  shall,  2 

except  as  pro\-ided  in  section  one  hundred  and  fourteen  and  in  chapters  3 

one  hundred  and  se\enty-six  and  one  hundred  and  se^•enty-se^■en,  be  4 

subject  to  tills  chapter.    Trade  unions  and  other  associations  of  wage  5 

workers  whose  principal  objects  are  to  deal  with  the  relations  between  6 

employers  and  employees  relative  to  wages,  hours  of  labor  and  other  7 

conditions  of  emploAiuent  shall  not  be  subject  to  this  chapter  or  chapters  8 

one  Jiundred  and  seventv-six  and  one  hundred  and  se\entA'-sc\en.  9 


1,S99,  46S. 
II.  L.  106,  i 


IS;  118,  §2. 


1907,  576,  §§  2.  122. 
1909,  514,  §§  30,  145. 


1911,  628,  §  29,6. 
1913,  017,  §  5. 


Companies 
subject  to  gen- 
eral corpora- 
tion laws. 
P.  S.  105,  §  1. 
1887,  214,  §  22. 
1894,  103;  522, 
§22. 


Section  30.     The  general  provisions  of  law  relative  to  the  powers,  1 

duties  and  liabilities  of  corporations  shall  apply   to  all  incorporated  2 

domestic  companies,  so  far  as  pertinent  and  not  in  confhct  with  other  3 

provisions  of  law  relative  to  such  companies  or  with  their  charters.  4 


E.  L.  lis,  §  22. 


1907,  570.  §§  23,  122. 


Chap.  175.]  insxirance.  1963 

1  Section  31.     Domestic    companies    incorporated    by    special    acts.  Continuation 

2  whose  charters  are  subject  to  a  limitation  of  time,  shall,  after  such  limi-  companies. 

3  tation  expires,  continue  to  be  bodies  corporate,  subject  to  all  general  Ks^'uij, 

4  laws  applicable  to  such  companies.  is87,  214,  §  23.  5  2^- 

1S94,  522,  §  23.  R.  L.  118,  §  23.  1907,  576,  §§  24,  122. 

1  Section  32.     No  domestic  company  shall  issue  policies  of  insurance  Domestic 

2  or  annuity  or  pure  endowment  contracts  luitil,  upon  examination  by  tSobtSn 


3  the  commissioner,  his  deputy  or  examiner,  it  is  found  to  have  com-  befor1'""° 


issuing 


4  plied  with  the  laws  of  the  commonwealth,  adopted  a  proper  system  of  fIji'fgT,  5  „ 

5  accounting,  employed  a  competent  accountant   and   a  competent  and  p^S;  ys^ §5^^ 

6  experienced  underwriter,  and  to  be  without  liabilities  except,  if  a  stock  1894!  522!  |  24: 

7  company  or  a  mutual  company  with  a  guaranty  capital,  to  stock- r.  l!  ii's,  §24. 

8  holders  for  the  amount  paid  in  for  shares  of  stock,  nor  until  it  has  ob-  §§  25, 122. 

9  tained  from  the  commissioner  a  certificate  stating  that  it  has  complied  ^^^^'  ^^^■ 

10  with  the  foregoing  conditions  and  all  other  laws,  and  authorizing  it  to 

11  issue  such  policies  or  contracts. 

1  Section  33.     All  such  policies  or  contracts  issued  by  such  company  signatures 

2  shall  be  signed  by  its  secretary,  assistant  secretary,  or  in  their  absence  i8i^?i2a§  1. 

3  by  a  temporary  secretary,  and  by  its  president  or  \ice  president  or  in  r.^I.'s",''^^' 

4  their  absence  by  two  directors.     Facsimiles  of  the  signatures  of  such  ||g\^'2|^i;  5  9, 

5  officers  imprinted  thereon  shall  have  the  same  validity  as  their  WTitten  i«54, 45.3.  §  7.^ 

6  signatures.  g.  s.  58,  §  32.  1864, 113,  §  2. 

§§  26,  122. 


P.  S.  119,  §  56. 

1894,  522,  §  25. 

1907,  576, 

1887,  214,  §  25. 

R.  L.  118,  §  25. 

1908.  473. 

1  SECTit)N  34.     Such  company  shall  have  its  home  office  in  the  place  Location 

2  specified  in  its  charter  or  agreement  of  association;  and  if  it  establishes  des'ign'iftira. 

3  agencies  in  other  places,  all  signs,  cards,  pamphlets  and  advertisements  \lll'_  HI',  |  5^' 

4  exhibited  or  issued  by  it  or  its  agents  shall  specify  the  place  where  the  p|n9,\44. 

5  company  is  located.  iss7,  214,  §  25. 

1894,  522,  §  25.  R.  L.  118,  §  25.  1907,  576,  §§  26,  122. 


1  Section  35.     No  domestic  company  shall  pay  any  salary,  compensa-  salaries  to  bo 

2  tion  or  emolument  to  any  officer,  trustee  or  director  thereof,  nor  any  d"rlctore;     ^ 

3  salary,  compensation  or  emolument  amounting  in  any  year  to  more  than  \l%\  q{^]  ^  "^• 

4  five  thousand  dollars  to  any  person,  unless  such  payment  be  first  author- 

5  ized  by  a  vote  of  its  board  of  directors.    No  such  company  shall  make 

6  any  agreement  with  any  of  its  officers,  trustees  or  employees  whereby  it 

7  agrees  that  for  any  services  rendered  or  to  be  rendered  he  shall  receive 

8  any  salary,  compensation  or  emolument  that  will  extend  beyond  a  period 

9  of  three  years  from  the  date  of  such  agreement;  nor  shall  such  company 
10  pay  any  pension  except  as  provided  in  the  following  section. 

1  Section  36.     Any  domestic  company,  when  authorized  so  to  do  by  a  Pensions  to 

2  vote  in  each  case  of  not  less  than  two  thirds  of  the  whole  number  of  its  ISi3,"6r3!' 

3  directors,  recorded  in  the  minutes  of  the  board,  may  grant  a  pension  to 

4  any  employee  who  has  been  continuously  in  the  service  of  the  company 

5  for  ten  years  and  who  has  become  incapacitated  for  further  service  by 
G  reason  of  physical  or  mental  disability  resulting  from  sickness  or  injury, 

7  and  may  grant  a  pension  to  any  employee  retiring  by  reason  of  the  in- 

8  firmities  of  age  who  has  been  continuously  in  the  service  of  the  company 

9  for  not  less  than  fifteen  years.    No  such  pension  shall  exceed  one  half 


1964  mstJRANCE.  [Chap.  175. 

the  former  yearly  salary  or  wages  of  the  employee,  nor  shall  it  exceed  10 
one  thousand  dollars  in  any  one  year,  and  any  such  pension  shall  be  dis-  11 
continued  when  any  such  pensioner  substantially  recovers  his  earning  12 
capacity.  13 

Any  such  company,  with  the  MTitten  approval  of  the  commissioner,  14 
may  also  establish  an  employees'  savings  fimd  or  contributory  pension  15 
system  for  the  benefit  of  its  aged  or  disabled  employees,  to  which  fund  16 
or  system  the  employees  shall  contribute  an  amount  not  less  than  the  17 
amount  contributed  by  the  company;  and  such  a  fund  or  system  shall  18 
so  be  established  by  any  such  company  which  pays  pensions  to  the  amount  19 
of  ten  thousand  dollars  or  more  in  any  one  year.  20 

dUsbureemente        SECTION  37.     No  domcstic  compauy  shall  make  any  disbursements  of  1 

1907,  576,  i  28.  twcuty-five  dollars  or  more  unless  the  same  be  evidenced  by  a  voucher  2 

signed  by  or  on  behalf  of  the  person  recei\-ing  the  money  and  correctly  3 

describing  the  consideration  for  the  pajTnent;  and  if  the  same  be  for  4 

services  and  disbursements,  setting  forth  the  services  rendered  and  an  5 

itemized  statement  of  the  disbursements  made;  and  if  it  be  in  connection  6 

with  any  matter  pending  before  any  legislature  or  public  body,  or  before  7 

any  department  or  officer  of  any  government,  correctly  describing  in  8 

addition  the  nature  of  the  matter  and  of  the  interest  of  such  company  9 

therein;  or  if  such  a  voucher  cannot  be  obtained,  by  an  affidavit  stating  10 

the  reason  for  not  obtaining  such  voucher,  and  setting  forth  the  partic-  1 1 

ulars  above  mentioned.  12 


mry'bt^sdd  Section  38.     All  the  right,  title,  claim  and  interest  of  a  domestic     1 

on  execution 
1S51.2S1.  § 


on  execution.  ^  company  in  mortgages  on  real  estate  held  by  such  company  may  be    2 


ism!  453!  I  u.  attached,  taken  on  execution  and  sold  at  public  auction  to  the  highest  3 

G.  s.'ss.l  '22.     bidder,  as  provided  in  the  five  follo^^^ng  sections.  p.  s.  ii9,  i  48.  4 

1887,  214,  I  27.  1894,  522,  §  27.  R.  L.  118,  |  27.  1907,  576,  §§  30,  122. 

fsmeon^'  Section  39.     The  officer  levying  such  execution,  having  first  given  1 

isTi"io5'  5 1     notice  of  the  time  and  place  of  sale  at  least  fourteen  days  pre\-ious  thereto  2 

i82s',  96, 1 24!    in  two  or  more  public  places  in  the  town  where  such  real  estate  lies,  and  3 

i.85i'  281, 1 22.  also  in  a  newspaper,  if  any,  published  in  the  county,  otherwise,  in  a  4 

liil;  2,52,' §  6.^'  newspaper  published  in  Boston,  shall  convey  such  lands  to  the  pur-  5 

58,f  22.'^^^'    chaser,  and  such  conveyance  shall  transfer  to  the  purchaser  all  the  es-  6 

ni.'^^lt  ^  ""'  tate  and  interest  of  the  company  therein.  iss7,  2i4.  §  27.  7 

1894,  522,  §  27.  R.  L.  115,  §90;  118,  §27.  1907,  576,  §§  30,  122. 

o/'ia""""""'         Section  40.     The  officer  who  levies  such  execution  may  adjourn  the  1 

1828, 96?  1^:    sale  from  time  to  time,  not  exceeding  seven  days  at  one  time,  until  the  2 

R.'s.'  3g;  I  51.    sale  is  completed.  issi.  28i,  5  22.  3 

1854,  453,  §11.  P.S.  118,  §91;  R.  L.  115,  §91; 

1856,  2.52,  §  6.  119,  §  48.  118,  §  27. 

G.  S.  57,  §  74;  1887,  214,  §  27.  1907,  576,  §§  30,  122. 

58.  §  22.  1884,  522,  §  27. 

ramp.wto  Section  41.     A  debt  secured  by  mortgage,  and  due  to  the  company  1 

chile" ^"^'       ^t  t^^®  t"^^  o*  s"*^'i  sale,  shall  pass  by  the  deed  of  conveyance  executed  2 

isis'll'""^''""'  ^y  ^^^^  officer.    The  purchaser  or  liis  legal  representatives  may  in  his  or  3 


i.'2.  '  their  name  maintain  any  action  proper  to  recover  such  debt  or  obtain     4 

iL's.'sb';  1 52^    possession  of  such  lands  which  might  have  been  maintained  in  the  name    5 
issl;  433;  I  n'.  of  the  company  had  no  such  sale  been  made;  and  a  copy  of  such  mort-    6 


Chap.  175.]  insurance.  1965 

7  gage  deed,  certified  by  the  register  of  deeds  for  the  county  or  district  i?5^  252,  §  6. 

8  where  the  land  lies,  shall  be  admissible  evidence  of  the  same.  ss,  §22.' 

p.  S.  lis,  §  92;  18S7,  214,  §  27.  R.  L.  115,  §  92;  118,  §  27. 

119,  §  48.  1894,  522,  §  27.  1907,  576,  §§  30,  122. 

1  Section  42.     The  secretary  of  the  company,  on  reasonable  request,  f^Ymnilh  '^'^ ' 

2  shall  furnish  to  the  officer  serving  such  execution,  or  the  iudgment  credi-  copies-of 

.  .  JO  notes   etc.    to 

3  tor,  a  certified  copy  of  the  note  or  obligation  and  the  endorsement  thereon  ofRrer,  etc' 

4  secured  by  the  mortgage,  with  a  statement  of  all  pajTuents  made  thereon  i828!9ii;  §  24. 

5  by  the  debtor,  and,  after  the  sale  of  such  mortgage,  shall  deliver  said  fsst,  2si,^§^22. 

6  note  or  obligation  to  the  purchaser.         is54. 453,  §  11.         i856, 252,  §  e. 

G.  S.  57,  §  76;  58,  §  22.  18.S7,  214,  §  27.  R.  L.  115,  §  93;  118,  §  27. 

P.  S.  118,  §  94;  119,  §  48.  1894,  522,  §  27.  1907,  576,  §§  30,  122. 

1  Section  43.     The  officer  making  such  seizure  on  execution,  if  re-  No  transfer  of 

2  quired  by  the  creditor,  shall  file  a  notice  thereof  in  the  registry  of  deeds,  Ifter  notice, '^■' 

3  and  gi\e  a  like  notice  to  the  secretary,  or  leave  the  same  at  the  office,  of  vludleicept, 

4  the  company;   and  no  sale  or  transfer  of  such  note,  obligation  or  mort-  jl'is  24  §3 

5  gage  made  by  the  company  after  such  notice  shall  have  any  validity  jf"||«'||4 

6  against  the  purchaser  under  such  sale,  but  the  same  shall  be  void  except  issi.  281,  §  22. 

7  as  between  the  company  and  the  person  to  whom  it  makes  such  sale  or  isse]  252!  §  e. ' 

8  transfer,  his  heirs,  executors,  administrators  or  assigns.  5s,  §22'.' 

P.  S.  118.  §  94:  119,  §  48.  1894,  522,  §  27.  1907,  576,  §§  30,  122. 

1887,  214,  §  27.  E.  L.  115,  §  94;  118,  §  27. 

1  Section  44.     If  any  domestic  company  shall  not  commence  to  issue  Powers  of 

2  policies  witliin  one  year  after  the  date  of  its  charter  or  of  its  certificate  of  ceMc^f"'H  .Joes 

3  organization,  or  if  after  it  has  commenced  to  issue  policies  it  shall  cease  f'o°ra"year!'etc. 

4  for  the  period  of  one  year  to  make  new  insurance,  its  corporate  powers  }||e!  252,  §  3 

5  shall  thereby  expire;  and  the  supreme  judicial  court,  upon  petition  of  the  ^^  s  ||' 5 1*- 

6  commissioner  or  of  any  person  interested,  may  fix  by  decree  the  time  §§  h2_ 

7  within  whicii  it  shall  settle  and  close  its  affairs.    A  company  incorporated  p.  &"'ii9,' 

fis  '?i  "i"?  ^n 

8  by  special  act  shall,  within  one  year  after  the  date  thereof,  file  with  the  i887,'2i4',  §  28. 

9  state  secretary  a  written  notice  of  its  organization  under  its  charter,  or  ^^l\  ui]  |  i|; 
10  the  same  shall  be  void.  i907,  570,  §§  31, 122,  1  op.  a.  g.  111. 

1  Section  45.    No  domestic  company  shall  establish  an  agency  or  ap-  Unauthorized 

2  point  an  agent  or  other  person  to  solicit,  negotiate,  continue  or  renew  age^n^ils. 

3  contracts  of  insurance  on  lives,  property  or  interests  in,  or  annuity  or  r*^;  }i|; 

4  pure  endowment  contracts  with  residents  of,  a  state,  district  or  territory  i907%76, 

5  where  such  company  has  not  been  lawfully  authorized  to  transact  busi-  S§  "S'  122. 

6  ness,  and  no  such  company  or  officer  or  agent  thereof  shall  pay  or  allow 

7  or  offer  to  pay  or  allow  compensation  or  anything  of  value  to  any  such 

8  person  for  soliciting,  negotiating,  continuing  or  renewing  such  contracts. 

9  Whoever  violates  this  section  shall  be  punished  by  a  fine  of  not  less  than 
10  three  hundred  dollars. 

1  Section  46.     When  a  domestic  stock  or  mutual  fire  company  be-  Preferred 

2  comes  insolvent,  or  is  unable  to  pay  in  full  its  liabilities  as  set  forth  in  fnsoh-ent  fire 

3  sections  ten  and  eleven,  unpaid  losses  under  its  poHcies  shall,  in  tlie  Jgog^^s'];' 

4  distribution  of  its  assets,  whether  liquidation  is  effected  by  a  receiver  9^oq<  1^ 

5  or  otherwise,  be  deemed  and  treated  as  preferred  over  claims  for  return 
fi  premiums  on  unex-pired  policies.    But  this  section  shall  not  impair  tlie 

7  obligations  now  or  hereafter  imposed  by  law  upon  the  officers  of  a  mutual 

8  fire  company  to  make  assessments  to  pay  all  its  legal  obligations. 


1966  INSUILtNXE.  [ClL\P.    175. 


Organizaiio7u 
Purposes  of  SECTION  47.     Companies  mav  be  incorporated  under  the  pro\'isions     1 

incorporation.  ni.i  pipn-^ 

Kinds  of  01  this  chapter  tor  the  lollo'mng  purposes:       is72, 375,  §  1.       p.  s.  119,  §  20.  2 

business.  .  „  _       _ 

1SS7,  214,  §  29.  1S95,  474,  §  1.  R.  L.  118,  §  29. 

1894,  133,  §  1;  1S96,  447,  §  1.  1907,  576,  §§  32,  122. 

522,  S§  29,  30.  1900,  92,  §  1.  1920,  327,  §  1. 

First,  To  insure  upon  the  stock  or  mutual  plan  against  loss  or  damage  3 

to  property  by  fire;   explosion,  fire  ensuing;   explosion,  no  fire  ensuing,  4 

except  explosion  of  steam  boilers  and  fl\T\heels;  lightning,  hail,  or  tern-  5 

pest  on  land;    earthquake,  bombardment;    invasion,  foreign  enemies,  6 

insurrection,  riot,  ci^il  war  or  commotion,  military  or  usurped  po\^■er;  a  7 

rising  of  the  waters  of  the  ocean  or  its  tributaries;    or  by  any  two  or  8 

more  of  said  causes;  and  against  loss  of  use  or  occupancy  caused  thereby.  9 

1901,  296,  §  1.  1908,  509.  1917,  238,  §  1. 

R.  L.  lis.  §  29,  els.  1,  12.         1910,  499,  §  1.  1920.  327.  §  1.  cl.  1. 

1907,  576.  §  32,  els.  1,  12.        1913,  174.  Op.  A.  G.  (1917)  13. 

Second,  To  insure  upon  the  stock  or  mutual  plan  vessels,  freights,  10 
goods,  money,  effects,  and  money  lent  on  bottomry  or  respondentia,  11 
against  the  perils  of  the  sea  and  other  perils  usually  insured  against  12 
by  marine  insurance;  risks  of  inland  navigation  and  transportation;  13 
also  to  insure  against  loss  or  damage  to  and  loss  of  use  of  motor  vehicles,  14 
their  fittings  and  contents,  whether  such  vehicles  are  being  operated  15 
or  not,  and  wherever  the  same  may  be,  resulting  from  accident,  collision.  16 
and  any  of  the  perils  usually  insured  against  by  marine  insurance,  or  17 
1^7,576,  §32,  from  risks  of  inland  navigation  and  transportation;  and  against  loss  or  18 
damage  caused  by  teams,  automobiles  or  other  vehicles,  except  rolling  19 
stock  of  railways,  to  the  property  of  another,  for  which  loss  or  damage  20 
any  person  is  liable.  3  Op.  a.  g.  39.  Dp.  a.  g.  (19i7)  i3.  21 

Third,  To  insure  on  the  mutual  plan  against  loss  or  damage  to  motor  22 
vehicles,  other  than  motor  boats,  their  fittings  and  contents,  whether  23 
such  vehicles  are  being  operated  or  not,  and  wherever  the  same  may  24 
be,  resulting  from  accident,  collision,  theft,  and  any  of  the  perils  usually  25 
insured  against  by  marine  insurance,  and  risks  of  inland  navigation  and  26 
transportation.  27 

ilsl'  214'  1 29  Fourth,  (a)  To  guarantee  the  fidelity  of  persons  in  positions  of  trust,  28 
cL3.'  '  '  private  or  public,  and  (5)  to  act  as  surety  on  official  bonds  and  for  the  29 
cl.  3;' 522,' §29,  performance  of  Other  obligations.  30 


1872 

375 

5  1. 

P.  S. 

119, 

§26. 

1SS7 

214 

§29, 

cl.  1 

1894 

133 

§1, 

cl.  1; 

522, 

§  29. 

cl.  1. 

1893 

474, 

§l,c 

1.1. 

1896 

447. 

§l.c 

1.1. 

1900 

92,  §  1, 

cl.  1. 

1872 

375, 

§1. 

P.S. 

119, 

§26. 

1887, 

214 

§1, 

cl.  2. 

1894 

133, 

§  1, 

cl.2; 

522, 

§29, 

cl.  2. 

1895 

474, 

11, 

cl.  2. 

1896 

447, 

§  1, 

cl.2. 

1900 

92,  s 

1, 

cl.2. 

R.  L 

lis. 

§29, 

cl.2. 

1907, 

576, 

§32, 

cl.2. 

190S 

509. 

1913 

541. 

1918 

115, 

§1. 

1920 

327, 

§1, 

cl.2. 

1914 

642. 

cl.  3. 


1895,  474,  §  1,  cl.  3.         1900,  92,  §  1,  cl.  3.  1907,  576,  §  32,  cl.  3. 

1890,  447.  §  1.  cl.  3.         R.  L.  118,  §  29,  cl.  3.         1920,  327.  §  1.  cl.  3. 


issj,  214.  §  29,  Fifth,  To  insure  upon  the  stock  or  mutual  plan  against  loss  or  damage  31 
i89^i.i33,|  ^  to  property  of  the  insured,  and  loss  or  damage  to  the  life,  person  or  32 
cL4!  "■  '  '  property  of  another  for  which  the  insured  is  liable,  caused  by  the  ex-  33 
ci4.'  '  '  plosion  of  steam  boilers,  tanks  or  other  receptacles  under  pressure,  or  34 
189^6,44  ,§1,  .^jjgjj.  connections,  or  by  the  breakage  or  rupture  of  machinery  or  fly-  35 
i9oa  92,  §  1,      ^-i;igg}s^  and  against  loss  of  use  and  occupancy  caused  thereby.  36 

1901,  296,  §  1.  1907,  576,  §  32,  els.  4.  12.       1915,  178,  §  1. 

R.L.  118.  §29,  els.  4,  12.        1910,  499,  §  1.  1920,  327,  §  1,  cl.  4. 

1900.  396.  1914,  426. 

lh~i  ¥*'  ^  ^^'  Sixth,    To  insure  upon  the  stock  or  mutual  plan   (a)   any  person  37 

i89Vi|3,  §  i_.  against  bodily  injury  or  death  by  accident,  or  (b)  any  person  against  loss  38 

cl.  5^'    _""    *"  or  damage  on  account  of  the  bodily  injiuy  or  death  by  accident  of  any  39 

cl.  5"'  '  '     '  person,   or   against   damage   caused   by   teams,   automobiles  or  other  40 

i89_o.44(,  §  1,  y(,]jjclcs,  except  rolling  stock  of  railways,  to  the  property  of  another,  41 


Ch-^p.  175.]  msuBANCE.  1967 

42  for  which  loss  or  damage  such  person  is  liable,  or  (c)  against  loss  or  woo,  92.  §  1, 

43  damage  to,  or  loss  of  use  of,  motor  vehicles  designed  to  operate  on  land,  r.  l.  ii's,  §  29, 

44  their  fittings  and  contents,  whether  such  vehicles  are  being  operated  or  fgoi_  576,  §  32, 

45  not,  and  wherever  the  same  may  be,  resulting  from  collision  or  accident,  f^Q^  24s. 

46  except  loss  or  damage  by  fire  or  while  being  transported  in  any  convey-  JgJi'liJ'^  '■ 

47  ance  by  land  or  water,  and  (d)  to  make  insurance  upon  the  health  of  isia.'asi;  750. 

48  individuals.  wis.  115,  §2.  W20, 327,  §  1,  a  5. 

155  Mass.  404.  208  Mass.  386.  3  0p.  A.G.  219. 

199  Mass.  181.  2  Op.  A.  G.  289.  4  Op.  A.  G.  505. 

49  Seventh,  To  insure  against  the  breakage  of  plate  glass,  local  or  in  iS73,  i67,  §  i. 

50  transit.  iss?,  214,  §  29,  d.  6.  is94,i33,§i,ci.6i522,  §29,ci.  6.  ■  ■  ^^      ^' 

1S95,  474,  §  1,  cl.  6.         WOO,  92,  §  1,  cl.  6.  1907,  576,  §  32,  cl.  6. 

1S90,  447,  §  1,  cl.  6.         R.  L.  US,  §  29,  cl.  6.  1920,  327,  §  1,  cl.  0. 

51  Eighth,  To  insure  against  loss  or  damage  to  any  goods  or  premises  1895,474,  §i, 

52  of  the  insured,  and  loss  or  damage  to  the  property  of  another  for  which  figi,  447,  §  1, 

53  the  insured  is  liable,  caused  by  the  breakage  or  leakage  of  sprinklers,  jljoo,  92,  §  1, 

54  pumps,  water  pipes,   elevator  tanks  and  cylinders,   steam  pipes  and  j[  ^-  ^j^  ^  „g 

55  radiators,  or  plumbing  and  its  fixtures,  or  against  accidental  injury  ^i.  7.      '  '     ' 

56  from  other  causes  than  fire,  lightning,  bombardment  or  wind  storm  to  ci.  7.' 

57  such   sprinklers,   pumps,   water   pipes,   elevator   tanks   and   cylinders,  1920',  327',  §  1,' 

58  steam  pipes  and  radiators,  plumbing  and  fixtures;  also  to  insure  against  '^''^" 

59  loss  or  damage  to  any  goods  or  premises  of  the  insured,  and  loss  or 

60  damage  to  the  property  of  another  for  which  the  insured  is  liable, 

61  caused  by  the  leakage  of  roofs,  leaders  and  spouts,  or  by  rain  and  snow 

62  driven  through  broken  and  open  windows  and  skylights,  or  caused  by 

63  the  contents  of  any  tank,  or  impact  of  any  falling  tank,  tank  platform 

64  or  supports  erected  in  or  upon  any  building,  and  to  insure  against  loss  of 

65  use  and  occupancy  due  to  any  of  said  causes. 

66  Ninth,  To  insure  against  loss  or  damage  to  property  and  loss  of  use  is95, 474,  §  1, 

67  and  occupancy  arising  from  accidents  to  elevators,  bicycles  and  vehicles,  1,^9^  447,  §  1, 

68  except  rolling  stock  of  railways.  "^'^  '^^ 

1900,  92,  §  1,  ol.  8.  1907,  576,  §  32,  cl.  8.  1920,  327,  §  1,  ol.  8. 

R.  L.  118,  §  29,  cl.  8.  1913,541. 

69  Tenth,  To  carry  on  the  business  commonly  known  as  credit  insurance  1896,447,  §  1, 

70  or  guaranty,   either  by  agreeing  to  purchase  uncollectible   debts,  or  1900, 92,  §  1, 

71  otherwise  to  insure  against  loss  or  damage  from  the  failure  of  persons  r.  l.  iis,  §  29, 

72  iqdebted  to  the  insured  to  meet  their  liabilities.  '^'-  ^• 

1907,  576,  §  32.  cl.  9.  1920,  327,  §  1.  cl.  9.  4  Op.  A.G.  535. 

73  Eleventh,  To  examine  titles  of  real  and  personal  property,  furnish  issi,  iso,  §  i. 

74  information  relative  thereto,  and  insure  owners  and  others  interested  1889',  378.' 

75  therein  against  loss  by  reason  of  encumbrances,  defective  title  or  the  §§^62,^64"' 

76  insufficiency  of   any  mortgage  held  or  sold  by  the  insurer  as  security  f§29  d^io,G4 

77  for  the  amount  secured  by  such  mortgage,  or  against  any  other  loss  J?"^'^^;  ^(.^''ig  55 

78  in  connection  with  any  such  mortgage  or  any  interest  therein,  and  to  wos.'sog. 

79  buy  and  sell  mortgages  of  real  property  and  interests  therein.  §§  i,'4. 

1920,  327,  §  1,  cl.  10.  4  Op.  A.-G.  535. 

80  Twelfth,  To  insure  against  property  loss  or  damage  by  burglary,  rob-  1900.92,  §  1. 

81  bery,  any  larceny,  any  breaking  and  entry  or  entry  without  breaking  of  fi  n/'*'  ^  ~°' 

82  any  house,  building,  ship,  vessel  or  railroad  car,  and  loss  or  damage  by  |'''32",'c1'^n. 

83  forgery.  ww,  96.  1920, 327,  §  1,  ci.  11. 

84  Thirteenth,  To  insure  against  loss  from  the  death  of  domestic  animals  1910,499,  §  1. 

85  and  to  furnish  veterinary  service.  li.'ii.  "'      ' 


1968 


INSTIRANCE. 


[Chap.  175. 


Capital  of 

stock  com- 

panies. 

1872,  375.  §  2. 

1873,  167,  §  2; 

182.  §  1. 

P.  S.  119,  §§  28 

63. 

1883.  33.  §  4. 

1884,  ISO.  §  1; 

296,  §2. 

$100,000. 


$200,000. 


$300,000. 
$400,000. 


Not  over 

$1,000,000, 

except. 


Section  48.  Ten  or  more  persons  residents  of  this  commonwealth 
may  form  a  company  (a)  to  transact  the  business  set  forth  in  any  one  of 
the  clauses  of  the  preceding  section,  (b)  to  transact  the  business  set  forth 
in  the  first  and  second  clauses  thereof,  or  (c)  to  transact  the  business  set 
forth  in  any  two  or  more  of  the  fourth,  fifth,  sixth,  seventh,  eighth,  ninth, 
tenth,  twelfth  and  thirteenth  clauses  thereof.  is87, 214,  §§  31, 64. 


IS88,  141. 
1S94,  133.  §  2; 
522,  5§  31,  64. 
1895,  474,  §  2. 


1896,  447,  §  2. 
1900,92,  §  2;  183.  §  2. 
1901,  296.  §  2. 
R.  L.  lis,  §  31. 


1907,  576,  §§  32,  122. 
1910,  499,  §  1. 
1917,  146,  §  2. 
1920,  327.  §  1. 


Companies  organized  under  this  section  shall  have  a  paid-up  capital  7 
as  follows:  8 

Under  the  sixth  clause,  to  insure  only  against  sickness  and  against  9 
the  bodily  injury  or  death  by  accident  of  the  insured;  and  under  the  10 
seventh  and  thirteenth  clauses,  not  less  than  one  hundred  thousand  11 
dollars.  12 

Under  the  first,  fourth,  fifth,  sixth,  except  as  otherwise  provided  13 
herein,  eighth,  ninth,  tenth  and  twelfth  clauses,  not  less  than  two  hun-  14 
dred  thousand  dollars.  15 

Under  the  second  clause,  not  less  than  three  hundred  thousand  dollars.  16 

Under  the  first  and  second  clauses,  not  less  than  four  hundred  thou-  17 
sand  dollars.  18 

Under  the  eleventh  clause,  not  exceeding  one  million  dollars;  and  if  19 
insurance  against  the  insufficiency  of  mortgages  as  security  or  against  20 
any  other  loss  in  connection  with  mortgages,  except  insurance  of  titles  21 
is  transacted,  not  less  than  two  hundred  thousand  dollars.  22 

Under  two  or  more  of  the  clauses  enumerated  herein  under  (c),  the  23 
paid-up  capital  shall  not  be  less  than  the  largest  amount  required  for  the  24 
transaction  of  the  kinds  of  business  specified  in  any  one  clause  which  it  is  25 
authorized  to  transact,  and  an  additional  amount  equal  to  one  half  of  26 
the  minimum  capital  required  above  for  the  transaction  of  the  kinds  27 
of  business  specified  in  each  additional  clause  which  it  is  authorized  to  28 
transact.  29 


Formation  of 
corporation. 

1872,  375, 
§§  1.2,5. 

1873,  1G7,  §  1. 
P.  S.  119, 

§§  26-28. 
1887.  214,  5  30. 
1894.  522,  §  30. 
R.  L.  110.  §  lU; 
118,  §30. 
1907,  576, 
15  33.  122. 

1919,  333, 
§  14;  350, 
§§  52,  53. 

1920,  2. 


1872,375. 
§§6-8. 
P.  S.  119, 
§§  32-34. 


1872.  375, 

§§  9,  14. 

P.  S.  119,  §35. 


Section  49.     The  company  shall  be  formed  in  the  manner  described  1 

in  and  be  subject  to  section  nine  of  chapter  one  hundred  and  fifty-five  2 

and  sections  six  and  eight  to  twelve,  inclusive,  of  chapter  one  hundred  3 

and  fifty-six,  except  as  otherwise  expressly  provided  in  this  chapter.  4 

The  name  of  the  corporation  shall  be  subject  to  appro\al  by  the  5 

commissioner,  and  shall  contain  the  word  "insurance"  or,  if  organized  6 

on  the  mutual  plan,  the  words  "mutual  msurance".  7 

The  agreement  of  association  shall  state  the  classes  of  insurance  it  8 

proposes  to  transact  and  on  what  business  plan  or  principle;    and  if  a  9 

mutual  company,  the  amount  of  capital  stock  and  the  par  value  of  10 

shares  shall  he  omitted.  1 1 

At  the  first  meeting,  only  the  directors  and  such  other  officers  as  12 

the  by-laws  require  shall  be  chosen,  and  the  president,  secretary  and  13 

such  other  officers  as  the  by-laws  authorize  them  to  choose  shall  be  14 

chosen  by  the  directors.  15 

The  certificate  of  organization  shall  be  signed  and  sworn  to  by  the  16 

president,  secretary  and  a  majority  of  the  directors,  and  shall,  with  17 

the  records  of  the  company,  be  submitted  to  the  commissioner  instead  18 

of  the  commissioner  of  corporations  and  taxation,  and  he  shall  per-  19 

form  the  duties  relative  thereto  required  of  the  commissioner  of  corpora-  20 

tions  and  taxation  relative  to  business  corporations.  21 


Chap.  175.]  iNSUE.«srcE.  1969 

22      The  certificate  issued  liy  the  state  secretary  under  section  twel\'e  of 
2.3  chapter  one  hundred  and  fifty-six  shall  be  modified  to  conform  to  the 

24  requirements  of  this  section. 

25  The  fee  to  be  paid  to  the  state  secretary  upon  the  fihng  of  the  certifi- 

26  cate  of  organization  shall  be  twenty-five  dollars. 

1  Section  50.     A  stock  company  may,  by  a  two  thirds  vote  of  all  its  Change  of 

2  stock,  or  a  mutual  company,  by  a  two  thirds  vote  of  those  members  igil/^TIg.''  '^' 

3  present  and  voting  at  a  meeting  duly  called  therefor,  alter,  add  to  or 

4  change,  to  tiie  extent  authorized  by  this  chapter,  the  business  for  the 

5  transaction  of  which  it  was  incorporated.    Such  articles  of  amendment, 

6  signed  and  sworn  to  by  the  president  and  secretary  and  a  majority  of 

7  the  directors,  shall,  witliin  thirty  days  after  their  adoption,  be  submitted 

8  to  the  commissioner,  who  shall  examine  them  in  the  same  manner  as 

9  the  original  articles  of  organization.     If  he  finds  that  they  conform  to 

10  the  requirements  of  law  he  shall  so  certify  and  endorse  his  approval 

11  thereon,  and  they  shall  thereupon  be  filed  in  the  office  of  the  state  secre- 

12  tary,  who,  upon  the  receipt  of  a  fee  of  fi^■e  dollars,  shall  cause  them  and 

13  the  endorsement  thereon  to  be  recorded,  and  said  articles  of  amendment 

14  shall  then  be  deemed  to  be  a  part  of  the  charter  or  articles  of  organization 

15  of  the  company.    No  amendment  or  alteration  of  the  agreement  of  asso- 

16  ciation  or  articles  of  organization  shall  take  effect  until  said  articles  of 

17  amendment  shall  liave  been  filed  in  the  office  of  the  state  secretary  as 

18  aforesaid. 

1  Section  51.     No  domestic  stock  company  shall  transact  any  busi-  fj^nlsf  which 

2  ness  other  than  that  specified  in  its  charter  or  agreement  of  association,  maybecom- 

,.  ^  ii'ipi*  '  n     ^   1     ^  t  p     "^ined  bv  stock 

3  except  that  it  may  transact  the  kinds  of  business  specified  below  by  ret-  companies 

4  erence  to  the  several  clauses  of  section  forty-seven,  as  follows: 

1891.  195.  1898,  380,  §  1.  1920,  327,  §  2. 

1894,  133,  §§  2,  3;  522,  §§31,  80.  1900,  92,  §  2;  183,  §  2.  1  Op.  A.  G.  19. 

1895,  474,  §§  2,  3.  R.  L.  118,  §§  29,  5li,  80.  4  Op.  A.  G.  535. 

1896,  140,  §  1;  447,  §  2.  1907,  576,  §§  34,  122.  Op.  A.  G.  (1917)  13. 

5  (a)  The  first  and  second,  if  authorized  to  transact  either,  provided  it  1909, 192,  §  1. 

6  has  a  paid-up  capital  of  not  less  than  four  hundred  thousand  dollars. 

7  (6)  Any  one  or  more  of  the  fourth,  fifth,  sixth,  seventh,  eighth,  ninth,  1902, 340,  §  1. 

8  tenth,  twelfth  and  thirteenth,  if  authorized  to  transact  any  one  of  said  i9o\  543I  \lo. 

9  clauses,  provided  it  conforms  to  the  requirements  of  section  forty-eight  \l°f^  Hf 

10  in  respect  to  paid-up  capital.  i'*'^'  '^^^■ 

11  (c)  The  eighth,  if  authorized  to  transact  the  first. 

12  (d)  The  sixth,  if  authorized  to  transact  life  insurance,  pro\nded  it  has  1920. 152. 

13  a  paid-up  capital  of  not  less  than  four  hundred  thousand  dollars. 

14  (e)  The  first,  if  authorized  to  transact  fire  insurance. 

15  (/)  The  fifth,  if  incorporated  by  special  act  to  insure  against  loss  or  1910,  499,  §  2. 

16  damage  caused  by  the  explosion  of  steam  boilers. 

17  {g)  Any  form  of  insurance  not  included  in  the  provisions  of  section  1920, 327,  §  2. 

18  forty-seven,  provided  that  such  form  of  insurance  is  not  contrary  to  law 

19  and  shall  be  transacted  only  upon  express  license  of  the  commissioner  and 

20  upon  such  terms  and  conditions  as  he  may  from  time  to  time  prescribe. 

1  Section  52.    Contracts  of  insurance  for  each  of  the  classes  specified  c?,""''"'''' '"■" 

r»»  •  p  111  -ii*  .  p  airlerent 

2  in  section  forty-seven  shall,  except  as  provided  in  section  twenty-iour,  classes  of  insui- 

3  be  in  separate  and  distinct  policies,  notwithstanding  any  pro\'ision  of  separate 

4  this  chapter  whicji  autliorizes  a  company  to  transact  more  than  one  of  »cept!'etc. 


505. 


1970  msuR.u^CE.  [Chap.  175. 

1S96, 140,  §  2.  said  classes;  except  that  the  commissioner  may  authorize  the  issuance  of  5 
R.  L!iis,'§5fi.  policies  of  insurance  covering  more  than  one  of  the  said  classes  upon  6 
1907,'  576,'  ^  ^'  such  terms  and  conditions  as  he  may  prescribe  and  upon  policy  forms  7 
inil^'sli^'  approved  by  him;  and  except  that  any  domestic  company  authorized  to  8 
1918  11'  ^^^'  transact  the  kinds  of  business  specified  in  the  fourth  and  twelfth  clauses  9 
i92o!327,  §2.  of  scctiou  forty-seveu  may  insure  in  one  policy  a  bank,  banker,  in^'est-  10 
4  Op.  A.  G.  38,  ment  broker,  banking  association  or  corporation  against  the  loss  of  bills  1 1 
of  exchange,  notes,  profits,  bonds,  securities,  evidences  of  debt,  deeds,  12 
mortgages,  documents,  currency  and  money,  except  against  loss  thereof  13 
in  marine  transportation  or  transportation  by  common  carrier.  14 

Sin™oUcie""         Section  53.     A  company  insuring  property  in  the  commonwealth  1 

witifconi^         against  loss  or  damage  from  explosion,  except  explosion  of  steam  boilers  2 

i9i7°23s  5  ■^     ^""^  fl^nvheels,  bombardment,  invasion,    foreign    enemies,    insurrection,  3 

riot,  civil  war  or  commotion,  military  or  usiu-ped  power,  or  any  one  or  4 

more  of  them,  shall  file  with  the  commissioner  the  forms  of  the  policies  5 

employed  by  it  in  such  insurance.  6 

Ms°'^which"ma,v      SECTION  54.     No  domestic  mutual  company  shall  transact  any  other  1 

certain  mJftuaF  kind  of  busiucss  than  is  specified  in  its  charter  or  agreement  of  associa-  2 

i887"2i'r  5  31  ^^°"'  ^^cept  that  it  may  in  addition  transact  the  kinds  of  business  speci-  3 

1894^  133!  §  2;    fied  below  by  reference  to  the  several  clauses  of  section  forty-seven,  as  4 

1896,140;  f oIloWS :  1898,  380,  §  1.  1900,  92,  §  2;  183,  §  2.  5 

**''•.  ^  ^-  R.  L.  lis,  §§  29,  56.  1907,  576,  §§  34,  122.  1920,  327,  §  2. 

1919!  140  (o)  The  second,  if  authorized  to  transact  the  first  and  it  has  two    6 

1920,  327,  §  2.  million  dollars  of  insurance  in  force  in  not  less  than  eight  hundred  separate  7 
risks.  Any  business  transacted  under  said  second  clause  shall  be  sub-  8 
ject  to  all  laws  now  or  hereafter  in  force  relating  to  the  transaction  of  9 
business  by  a  mutual  fire  company.  10 

^^^^•-'-  (b)  The  fifth,  subject  to  the  approval  of  the  commissioner,  if  authorized  11 

to  transact  the  sixth,  subdi\-ision  (6);  pro\'ided,  that  no  policy  shall  12 
be  issued  under  the  fifth  clause  until  one  million  dollars  of  insurance  13 
has  been  applied  for  in  not  less  than  one  hundred  separate  boiler  risks.  14 
The  provision  of  section  twenty-one  that  a  mutual  boiler  company  15 
may  insure  in  a  single  risk  an  amount  of  not  exceeding  one  fourth  of  16 
its  net  assets  shall  not  apply  to  mutual  companies  acting  under  this  17 
paragraph.  18 

1917,191.  ^g^  fpj^g  fourth,  subdivision  (a),  and  the  sixth,  subdivisions  (a)  and  (d),  19 

if  it  is  authorized  to  transact  the  sixth,  subdivision  (b);  provided,  that  20 
before  transacting  the  sixth,  subdivisions  (a)  and  (d),  it  shall  have  a  21 
surplus  of  not  less  than  one  hundred  thousand  dollars,  and  before  trans-  22 
acting  the  fourth,  subdi\'ision  (o),  a  surplus  of  not  less  than  two  hundred  23 
thousand  dollars;  and  if  it  transacts  both,  a  surplus  of  not  less  than  three  24 
hundred  thousand  dollars;  and  such  surpluses  shall  be  maintained  while  25 
it  transacts  the  said  kinds  of  business.  26 

§§°34,?22.  (d)  The  sixth,  if  authorized  to  transact  life  insurance,  whether  or  not  27 

327?'§'2  w.  ''*  ^^^^  ^  capital  stock,  provided  it  has  a  surplus  of  not  less  than  four  28 
hundred  thousand  dollars;  but  it  shall  not  be  authorized  hereunder  to  29 
transact  workmen's  compensation  insurance.  30 

ifs'i.^i'll  (e)  The  eighth,  if  authorized  to  transact  the  first.  31 

1920,  327.  §  2  (c). 

1920. 327, 1 2*"       if)  TJie  first,  if  authorized  to  transact  fire  insurance.  32 

1920, 327,  §  2.        (^)  Any  form  of  insurance  not  included  in  the  proA-isions  of  section  33 

forty-seven;    provided,  that  such  form  of  insurance  is  not  contrary  to  34 


CH.iP.    175.]  INSUR.\NCE.  1971 

35  law  and  shall  be  transacted  only  upon  express  license  of  the  commis- 

36  sioner  and  upon  such  terms  and  conditions  as  he  mhy  from  time  to  time 

37  prescribe. 

1  Section  55.     Mutual  companies  organized  prior  to  April  sixth,  nine-  Powers  of 

2  teen  hundred  and  eleven,  to  transact  employers'  liability  insurance  may  TOSpa^nfes"*"^' 

3  continue  such  business  under  the  sixth  clause  of  section  forty-seven.  522^'§'^3^f.'  ^  ^' 
■    4  They  may  also  transact  all  the  kinds  of  business  specified  in  the  said  JIqr;  147^5^2 

5  sixth  clause  if  authorized  so  to  do  by  a  vote  of  two  thirds  of  the  policy  jl^^i®!'  ^  ^'• 

6  holders  present  and  voting  at  a  meeting  called  therefor.  R-  l-  n's,  §  29. 

7  Mutual  companies  organized  prior  to  March  first,  nineteen  hundred  122.' 

8  and  fifteen,  to  transact  steam  boiler  insurance  may  transact  all  the  kinds  i9n,'  251,  §  1. 

9  of  business  specified  in  the  fifth  clause  of  section  forty-seven.  I9I3;  750: 

1915,  178,  §  1. 

1  Section  56.     Any  domestic  corporation  subject  to  chapter  one  hun-  Reincorpora- 

2  dred  and  seventy-six  and  confining  its  membership  to  a  particular  order  comp°iny 

3  or  fraternit}^  or  to  chapter  one  hundred  and  seventy-seven, may  by  a  two  ehaptersiTs 

4  thirds  vote  of  its  policy  or  certificate  holders  voting  thereon  adopt  this  ™,'~J-.,  . ,,  - 

•111  -ii  pi'i  *•  1907,  5/6,  §  35. 

5  section  at  a  meeting  called  to  consider  the  same,  01  which  meeting  written 

6  or  printed  notice  shall  be  mailed  to  each  policy  or  certificate  holder  at 

7  least  thirty  days  before  the  day  fixed  for  the  meeting,  and  be  reincor- 

8  porated  under  this  chapter  as  a  stock  company  to  insure  only  against 

9  the  disability  of  the  insured  by  sickness  and  the  bodily  injury  and  death 

10  of  the  insured  by  accident  as  proAided  in  subdi\'isions  (a)  and  {d)  of 

11  the  sixth  clause  of  section  forty-seven.    The  members  of  such  corpora- 

12  tions  may  vote  on  tliis  proposition  by  prox>',  if  the  instrument  appoint- 

13  ing  the  proxy  is  filed  ■u'ith  the  secretary  of  the  corporation  at  least  five 

14  days  before  said  meeting,  and  the  aforesaid  notice  to  the  policy  and 

15  certificate  holders  shall  so  state.    A  copy  of  such  vote  certified  to  by  the 

16  president,  secretary  and  a  majority  of  the  directors  of  the  corporation 

17  shall  be  filed  with  the  commissioner.    If  such  vote  be  in  the  affirmative  the 

18  recording  officer  shall  cause  a  notice  to  be  mailed  to  each  policy  or  cer- 

19  tificate  holder  at  his  last  known  address,  reciting  the  substance  of  such 

20  vote,  and  stating  that  books  for  cash  subscriptions  for  stock  in  said  com- 

21  pany  have  been  opened  in  the  home  office  and  will  continue  open  for 

22  sixty  days  from  the  date  of  said  notice,  and  that  a  policy  or  certificate 

23  holder  in  said  corporation  may  have  a  prior  right  within  said  period  to 

24  subscribe  for  said  stock;  and  stating  also  that  no  member  shall  subscribe 

25  for  more  than  ten  shares  thereof,  and  that  the  par  value  shall  be  twenty- 

26  five  dollars  per  share;   and  stating  also,  in  a  form  satisfactory  to  the 

27  commissioner,  the  financial  condition  of  the  corporation  at  the  time  of 

28  the  meeting  aforesaid.    If  within  said  period  of  sixty  days  the  capital, 

29  as  fixed,  shall  be  oversubscribed  by  policy  or  certificate  holders,  the 

30  directors  shall  allot  to  each  his  proportionate  part  of  the  amount  sub- 

31  scribed.    At  the  ex^jiration  of  said  period  of  sixty  days,  the  said  right  of 

32  priority  to  subscribe  shall  cease,  and  subscriptions  for  stock  then  undis- 

33  posed  of  may  be  received  from  any  member  or  certificate  holder  or  other 

34  person  and  to  any  amount.    Within  thirty  days  after  the  stock  has  been 

35  subscribed,  a  meeting  of  the  subscribers  shall  be  called  by  a  notice  signed 

36  by  the  recording  officer  of  the  corporation,  stating  the  time,  place  and 

37  purpose  of  the  meeting,  a  copy  of  which  notice  shall,  seven  days  at  least 

38  before  the  day  appointed  for  the  meeting,  be  given  to  each  subscriber, 

39  or  left  at  his  usual  place  of  business  or  residence,  or  deposited  in  the  post 

40  office,  postpaid,  and  addressed  to  him  at  his  usual  place  of  business  or 


1972 


rNSmiANCE. 


[Ch.u'.  175. 


1010,  499,  §  2. 


Directors;  elec- 
tion, number, 
quorum,  term, 
classes. 
Vacancies. 
1832. 95,  5§  3, 5, 
R.  S.  37, 
§§3,5,7. 
1S54,  453, 
§§3,4. 

1856,252,  §  11. 
G.  S.  58,  §  27. 
P.  S.  119,  §51. 


residence.     Said  recording  officer  shall  make  an  affidavit  of  his  doings,  41 

which,  with  a  copy  of  the  notice,  shall  be  recorded  in  the  records  of  the  42 

corporation.     At  such  meeting,  including  any  necessary  or  reasonable  43 

adjournment  thereof,  by-laws  of  such  stock  company  shall  be  adopted,  44 

and  the  secretary,  directors  and  such  other  officers  as  the  by-laws  re-  4,5 

quire  shall  be  chosen.    The  president,  treasurer  and  other  officers  that  the  46 

said  by-laws  authorize  them  to  choose  shall  be  elected  by  the  directors  47 

at  a  meeting  held  directly  after  the  adjournment  of  the  stockholders'  48 

meeting.    A  certificate  of  organization,  containing  a  statement  that  the  49 

capital  stock  has  been  paid  in  in  cash,  shall  be  signed  and  sworn  to  by  the  50 

president,  secretary  and  a  majority  of  the  directors  of  such  corporation,  51 

and  shall,  with  the  records  of  the  corporation  pertaining  to  the  reincor-  52 

poration,  be  submitted  to  the  commissioner.    If  it  appears  that  the  re-  53 

quirements  of  this  section  have  been  complied  with,  the  commissioner  54 

shall  so  certify  and  approve  the  certificate  by  his  endorsement  thereon.  55 

Such  certificate  shall  thereupon  be  filed  'with  the  state  secretary,  who,  56 

upon  payment  of  a  fee  of  ten  dollars,  shall  issue  to  such  corporation  a  57 

certificate  of  reincorporation  as  a  stock  company,  xvith  tlie  powers  re-  58 

tained  and  hereby  conferred.    Upon  the  issuance  of  such  certificate  such  59 

company  shall  cease  to  issue  policies  or  certificates  upon  its  former  plan,  60 

and  shall  tlien  be  empowered  to  transact  its  business  under  this  chapter,  61 

■with  all  the  obligations,  rights  and  pri\ileges  that  it  would  be  subject  62 

to  had  it  been  incorporated  thereunder.  63 

The  company  shall  be  subject  to  all  the  liabilities  of  the  former  cor-  64 

poration,  and  be  entitled  to  all  its  assets,  including  the  emergency  fund,  65 

which  shall  be  paid  to  it  by  the  state  treasurer,  upon  requisition  signed  66 

by  the  president  and  a  majority  of  the  directors,  accompanied  by  a  copy  67 

of  the  certificate  of  reincorporation.    All  policies  or  certificates  in  force  68 

at  tlie  date  of  reincorporation  shall  continue  in  full  force  and  effect  in  69 

all  their  provisions,  agreements  and  undertakings,  and  shall  be  construed  70 

according  to  the  laws  under  which  they  were  issued,  except  that  the  71 

policy  or  certificate  holder  shall  not  be  liable  to  any  extra  assessment;  72 

provided,  that  the  rates  for  benefits  for  death  from  natural  causes  may  73 

from  time  to  time  be  raised  if  the  experience  of  the  company  shows  it  to  74 
be  necessary.    Any  defences  or  evidence  relative  to  such  policies  or  cer-  75 

tificates  open  under  such  provisions  shall  constitute  a  defence,  and  shall  76 

be  received  as  evidence  in  any  controversy  between  the  parties  to  or  77 

interested  in  such  policies  or  certificates.    No  such  reincorporated  com-  78 

pany  shall  declare  a  stock  dividend  unless  its  surplus  thereafter  would  be  79 

equal  to  the  amount  of  the  surplus  at  the  time  of  reincorporation.  80 

Any  company  reincorporated  under  this  section  may  increase  its  81 
capital  stock  in  the  manner  provided  in  section  seventy,  and  may,  if  it  has  82 

sufficient  capital,  transact  all  the  kinds  of  business  permitted  to  domestic  83 

companies  by  section  fifty-one.  84 

Stock  Comimnies. 

Section  57.     The  board  of  directors  of  each  domestic  stock  company  1 

shall  consist  of  not  less  than  five  members,  a  majority  of  whom  shall  be  2 

residents  of  the  commonwealth,  chosen  by  ballot  from  the  stocldiolders.  3 

They  shall  hold  office  for  one  year  or  for  the  term  pro\'ided  in  the  by-laws  4 

as  authorized  in  the  following  paragraph,  and  until  their  successors  are  5 

qualified.    A  majority  of  tJiose  in  attendance  may  transact  business,  and  6 

not  less  than  four  shall  constitute  a  quorum.               isst.  214.  §  32.  7 

1894,  522,  §  32.  1890,  253.  R.  L.  118,  §  32.  1907,  570,  §§  36,  122. 


CH.'i.P.   175.]  mSXJEANCE.  1973 

8  The  by-laws  of  such  a  company  may  di\'ide  its  board  of  directors  into  By-iaws  may 

9  one,  two,  three  or  four  classes,  and  provide  for  the  election  thereof  at  its  tors  into"*^' 

10  annual  meetings  in  such  manner  that  one  class  only  shall  retire  and  vacandes,  how 

11  their  successors  be  chosen  each  year.    Vacancies  in  any  class  may  be  JjIj^m  §25 

12  filled  by  the  board  by  election  for  the  unexpired  term.  js^*'  s??'.  1 25. 

■^  K.  ij.  118,  s  .so. 

1907,  576,  §§  26,  122, 

13  Vacancies  in  any  other  office  may  be  filled  by  the  directors  or  the  other 

14  stockholders  as  the  by-laws  may  provide.       1854,453,54.      1356,252,511.        how  filled. 

G,  S.  58,  §  27.  1S87,  214,  §  32.  R.  L.  118,  §  32. 

P.  S.  119,  §  51.  1894,  522,  |  32.  1907,  576,  §§  36,  122. 

1  Section  58.     The  board  of  directors  shall  annually  choose  by  ballot  Directors, 

2  a  president,  who  shall  be  a  member  of  the  board,  a  secretary,  and,  if  the  is32?95, 

3  by-laws  so  provide,  a  treasurer,  who  may  also  be  the  president  or  secre-  II  s.  37\' 

4  tary,  and  such  other  officers  as  the  by-laws  may  provide.  ^^^  3,4, 6,  as. 

1854,  4,53,  §§  1,  4.  P.  S.  119,  §  52.  R.  L.  118,  §§32,  41. 

1856,  252,  §  12.  1887,  214,  |  32.  1907,  576,  §§  36,  44,  122. 

G.  S.  58.  §  29.  1894,  522,  §  32. 

5  They  shall  call  special  meetings  when  written  requests  therefor,  signed  Jf '|'37'i  2 

6  by  owners  of  one  fifth  of  the  capital  or  by  twenty  stockholders,  are  filed  i|?i^53'§2. 

7  in  the  office  of  the  company.    All  matters  proposed  to  be  acted  upon  at  §§9,'r3."' 

8  any  meeting  of  the  company  shall  be  specified  in  the  call  therefor.  §§  is,  29. 

p.  S.  119,  §§41,53.         1894,  522,  §§  25,  32.         1907,  576,  §§  26,  36.  122. 
1SS7,  214,  §§  25,  32.         R.  L.  118,  §§  25,  32. 

9  They  shall  at  each  annual  meeting  of  the  company  submit  a  full  state-  is54, 453, 1 12. 

10  ment  of  the  transactions  of  the  company  during  the  previous  year  and  a^l.' ssf '§  34^' 

11  of  its  financial  condition.  p.  s.  119,  §os.  is87, 214,  §  32. 

1894,  522,  §  32.  R.  L.  US,  §  32.  1907,  576,  §§  36,  122. 

1  Section  59.     The  president,  or  in  his  absence  the  vice  president,  if  Duties  of 

n  in  •  1  Ti  •  PIT  1  r    1  1  T      president  and 

2  any,  shall  preside  at  all  meetings  or  the  directors  or  stockholders.     In  .secretary. 

3  the  absence  of  both  said  officers  a  temporary  president  may  be  chosen.      g.  s.'ss,!  2s.  " 

1864,113.  1894,  522,  §  32.  1907,  576,  §§  36,  44,  122. 

P.  8.119.  §52.  R.  L.  lis,  §§  32,  41.         1908,471. 

1SS7,  214,  §  32. 

4  The  secretary  shall  keep  a  list  of  stockliolders  and  of  the  number  of  feo'^g?- « 

5  shares  standing  in  the  name  of  each  and  a  record  of  the  transfers  thereof.  R..s.'  37',  §  i. 

6  He  shall  keep  a  record  of  the  ^•otes,  which  shall  show  whether  cast  in  per-  ism!  252,' 

7  son  or  by  proxy;    a  record  of  all  other  proceedings  of  all  meetings  of  a.s'.'H,' 

8  the  directors  or  the  stockholders;  a  record  of  all  policies  issued  and  of  p^l'^iil; 

9  all  authorized  assignments,  transfers  and  cancellations  thereof;  and  such  f|s|''2*i^4  « 30 

10  other  books  and  records  as  the  president  and  directors  may  require,  r ''j*' f?|' ^  ^^• 

11  The  records  so  kept  shall  be  evidence  of  all  elections  and  of  the  transac-  §§'32,41.' 

12  tions  to  which  they  relate,  and  shall  be  open  to  the  inspection  of  any  in-  §§  36, 44,' 122. 

13  terested  person.    A  secretary  who  wilfully  makes  a  false  record  shall  be  Penalty  for 

T.J  1         •!,  p  .  false  record. 

14  deemed  guilty  01  perjury. , 

1  Section  GO.     The  president,   vice  president,  if  any,  the  secretary,  Qualification 

2  assistant  secretary,  if  any,  the  treasurer  and  assistant  treasurer,  if  any,  is3"9'5,''§§i,4. 

3  shall  be  annually  sworn  and  their  oaths  entered  of  record  in  the  books  fg^' ^'s^m.*^' 

4  of  the  company.  isse,  252,  §  12.  G.  s.  58,  §  2S.  1864, 113,  §  1. 

( 36, 44, 122. 


p.  S.  119,  §52. 

1894,  522.  §  32. 

1907,  576, 

1887,  214,  §  32. 

R.  L.  lis,  §§  32,  41. 

1908,  471. 

5  Each  director  shall  file  with  the  secretary  a  written  acceptance  of  the  Directors  to 

6  trust  before  he  is  qualified  to  act.  isse,  252,  §  11.  aiceptanle. 

G.  S.  5S,  §  27.  1887,  214,  §  32.  R.  L.  118,  §  32. 

P.  S.  119.  S  51.  1894,  522,  §  32.  1907,  576,  |§  36,  122. 


1974 


INSURAJSrCE. 


[Chap.  175. 


tTeSuieTto"^  The  secretary  and  treasurer,  if  any,  shall  severally  give  bonds  with  7 
Ej,''^ bonds  ^  sureties  in  such  sums  as  the  directors  may  require  for  the  faithful  per-  8 
1S56!  252,'  1 9.'    f ormance  of  their  duties.  9 


G.  S.  5S,  I  17. 
p.  S.  119,  §41. 


1S87,  214,  §  25. 
1S94,  522,  §  25. 


R.L.  118,  5  25. 
1907.  576,  §  §  26,  122. 


Rights  of 
stockholders 
Proxies. 
1832,95.  §  3 
R.  S.  37.  §  5. 
1854,  453, 
-)3.4 


Section  61.     Each  stockholder  of  such  a  company  shall  be  entitled  1 

to  one  vote  for  each  share  he  holds,  not  in  excess  of  one  tenth  of  the  2 

capital,  in  the  choice  of  directors  and  at  all  meetings  of  the  company.  3 

Proxies  may  be  authorized  by  ■WTitten  power  of   attornev,  but  no  4 

1856,252.111.      a;  u    11        'i  "  c 

G.  s.  S8, 5  27    omcer  shall  vote  as  proxy.  5 


1S81,  142. 

P.  S.  119,151. 


1887,  214,  I  32. 
1894,  522,  I  32. 


R.  L.  118,  5  32. 
1907,  576,  |§  36,  122. 


Liability  of 
officers. 
1817,  120.  §  4. 
R.  S.  37.  §  18. 
1854,  453,  §  12. 
1856,  252, 
§S  14,  16. 
G.S.  58, 
5§31,33. 
1864,  29. 
P.  S.  119, 
§§  55,  57. 
1887,  214,  §  33. 
1894,  522,  §  33. 
R.  L.  118,  §  33. 
1907.  576, 
§§36,  122. 
10  Gray,  325. 


Section  62.    The  directors  or  other  officers  of  such   a  company  1 

making  or  authorizing  an  inv'estment  or  loan  in  violation  of  sections  2 

sixty-three,   sixty-five  or  sixty-six   shall   be   personally   liable   to  the  3 

stockholders  for  any  loss  caused  thereby.  4 

If  they  allow  to  be  insured  on  a  single  risk  a  larger  amount  than  5 

authorized  by  section  twenty-one,  they  shall  be  personally  liable  for  6 

any  loss  in  excess  of  the  amount  to  which  they  might  law-fully  insure.  7 

If  they  make  or  assent  to  further  insurance  knowing  that  the  accrued  8 

losses  of  the  company  ecjual  its  net  assets,  they  shall  be  personally  liable  9 

for  any  loss  under  such  insurance.                          12  Gray,  355.  10 


Pa\*ment  and 
investment  of 
capital  and 
resen'e. 
1832,  95.  I  2. 
R.  S.  37,  §  9. 
1854,  453,  §  5. 
1856,  252,  §  14. 
G.  S.  58,  §  30. 
1S72,  325. 
§§2,3. 
P.  S.  119, 
§§54,  00, 


Investments  of  All  Cotnpanies. 

Section  63.    The  capital  stock  shall  be  paid  in  cash  within  twelve  1 

months  after  the  date  of  the  charter  or  certificate  of  organization,  and  2 

no  certificates  of  full  shares  and  no  policies  shall  be  issued  until  the  3 

whole  capital  is  paid  in.     A  majority  of  the  directors  shall  certify  on  4 

oath  that  the  money  has  been  paid  by  the  stockholders  for  their  respec-  5 

tive  shares,  and  that  the  same  is  held  as  the  capital  of  the  company,  in-  6 

vested  or  to  be  invested  as  required  by  this  section.  7 

122. 


1885,  308. 
1887,  214.  §  34. 


1894,  522,  §  34. 
R.  L.  118,  §  34. 


1907,  576, §§  37 
146  Mass.  224. 


1817,  120.  §  3. 
R.  S.  37,  §  10. 
1838,  208. 
1838,  35. 
1845,  55. 
1.S56,  2.i2.  §  14. 
G.  S.  58.  §  31. 
1864.  29. 
P.  S.  119,  §55. 
1887,  214,  §  34. 
1894,  522,  §  34. 
1896,  171. 
R.  L.  118,  §  34. 
1907,  576, 
§§  37,  122. 

1909,  92. 

1910,  375,  §  1. 


The  capital  of  any  domestic  company  other  than  life,  and  three  8 
fourths  of  the  reserve  of  any  domestic  stock  or  mutual  life  company,  9 
shall  be  invested  oidy  as  follows:  10 

1.  In  the  public  funds  of  the  United  States  or  District  of  Columbia,  11 
or  of  any  state  of  the  United  States.  12 

2.  (a)  In  the  legally  authorized  bonds  or  notes  of  any  county,  city,  13 
town,  school  or  water  district  in  the  commonwealth.  14 

(b)  In  the  legally  authorized  notes  or  bonds  of  any  county,  city,  15 
school  or  water  district  in  any  other  state  in  the  United  States  which  16 
are  a  direct  obligation  of  the  county,  city,  school  or  water  district  issu-  17 
ing  the  same,  and  which  has  a  population,  according  to  the  last  national  18 
or  state  census  preceding  the  date  of  such  investment,  of  more  than  19 
one  hundred  thousand  inhabitants.  20 

(c)  In  the  legally  authorized  bonds  or  notes  of  any  county,  city,  21 
town,  school  or  water  district  in  any  such  other  state  of  the  United  22 
States  which  are  a  direct  obligation  of  the  county,  city,  town,  school  23 
or  water  district  issuing  the  same  whose  indebtedness,  after  deducting  24 
the  amount  of  its  water  debt  and  securities  in  the  sinking  fmids  avail-  25 
able  for  payment  of  its  bonds,  does  not  exceed  five  per  cent  of  the  valua-  26 


Chap.  175.]  insue.\nce.  1975 

27  tion  of  property  therein,  as  assessed  for  ta.xation  next  preceding  the 

28  date  of  such  investment. 

29  3.  In  the  bonds  or  notes  of  any  railroad  or  street  railway  corporation  4  Op.  a.  g.  144. 

30  incorporated  or  located  wholly  or  in  part  in  the  commonwealth,  or  in 

31  the  mortgage  bonds  of  any  railroad  corporation  located  wholly  or  in 

32  part  in  any  state  of  the  United  States  whose  capital  stock  equals  at 

33  least  one  third  of  its  funded  indebtedness,  which  has  paid  regularly 

34  for  the  five  years  next  preceding  the  date  of  such  investment  all  in- 

35  .terest  charges  on  said  funded  indebtedness,  and  which  has  paid  reg- 

36  ularly  for  such  period  dividends  of  at  least  four  per  cent  per  annum 

37  upon  all  its  issues  of  capital  stock,  or  in  the  mortgage  bonds  of  any  rail- 

38  road,  railway  or  terminal  corporation  which  have  been,  both  as  to 

39  principal  and  interest,  assumed  or  guaranteed  by  any  such  railroad  or 

40  railway  corporation. 

41  4.  In  the  mortgage  bonds  of  any  railroad  corporation  located  wholly 

42  or  in  part  in  any  state  of  the  United  States  whose  liens  junior  to  such 

43  mortgage  bonds  equal  at  least  one  third  of  the  funded  indebtedness 

44  secured  by  such  mortgage  bonds  and  bonds  prior  thereto  which  has 

45  paid  regularly  for  the  five  years  next  preceding  the  date  of  such  invest-  ' 

46  ment  all  interest  charges  on  the  said  funded  indebtedness,  and  which 

47  has  paid  regularly  for  such  period  at  least  four  per  cent  interest  on 

48  such  junior  securities. 

49  5.  In  loans  upon  improved  and  unencumbered  real  property  in  any  3  0p.  A.G.147. 

50  state  of  the  United  States,  and  upon  leasehold  estates  in  improved  real  *   '''^'    ■^^*' 

51  property  for  a  term  of  ninety-nine  years  or  more  where  fifty  years  or 

52  more  of  the  term  is  unexpired  and  where  unencumbered  except  by 

53  rentals  accruing  therefrom  to  the  owner  of  the  fee,  and  where  the  mort- 

54  gagee  is  entitled  to  be  subrogated  to  all  the  rights  under  the  leasehold, 

55  provided  tha,t  no  loan  on  such  real  property  or  such  leasehold  estate  shall 

56  exceed  sixty  per  cent  of  the  fair  market  value  thereof  at  the  time  of  such 

57  loan,  and  a  certificate  of  the  value  of  such  property  shall  be  executed 

58  before  making  such  loan  by  the  persons  making  or  authorizing  such 

59  loan  on  behalf  of  the  company,  which  certificate  shall  be  recorded  on 

60  the  books  of  the  company. 

61  6.  In  such  real  property  as  shall  be  requisite  for  convenient  accom- 

62  modation  in  the  transaction  of   its  business  and   subject  to  section 

63  sixty -four. 

64  7.  In  loans  upon  the  security  of  its  own  policies,  not  exceeding  at 

65  the  time  of  making  the  loan  the  legal  reserve  on  the  policy. 

66  8.  In  loans  secured  by  collateral  security  consisting  of  any  of  the  above,  s  Op.  a.  g.  147. 

1  Section  64.     All  investments  and  deposits  of  the  funds  of  any  such  investments. 

2  company  shall  be  made  in  its  corporate  name;  and  no  director  or  other  r.  s.'st,  §  14. 

3  officer  thereof,  and  no  member  of  a  committee  having  any  authority  §§^'1,^*2.' 

4  in  the  investment  or  disposition  of  its  funds,  shall  accept,  or  be  the  }|fg'  |f|'  ^  ^• 

5  beneficiary,  either  directly  or  remotely,  of  any  fee,  brokerage,  commis-  ||  *■  3|- 

6  sion,  gift  or  other  consideration  for  or  on  account  of  any  loan,  deposit,  g.  s.'ss. 

•  §§  20  21  23 

7  purchase,  sale,  payment  or  exchange  matle  by  or  in  behalf  of  such  com-  i872,'375'.  §'is. 

8  pany,  or  be  pecuniarily  interested  in  any  such  purchase,  sale  or  loan,  p.  s.'ii9, 

9  either  as  borrower,  principal,  co-principal,  agent  or  beneficiary,  except  i8lr|'2i4.'*|' Is! 

10  that,  if  a  policy  holder,  he  shall  be  entitled  to  all  the  benefits  accruing  ^^f;  l\f^  1 1|; 

11  under  the  terms  of  his  contract.  ss'ffi  ^li 

12  No  investment,  sale  or  loan,  except  loans  on  its  own  policies,  shall  iii  Mass. '292. 

13  be  made  which  has  not  first  been  authorized  by  the  board  of  directors,  4Op;a!g;208; 


1976 


INSUE.\NCE. 


[Chap.  175. 


Loans  on 
mortgages. 
1910.  375,  5  2. 
191U.  5. 


or  by  a  committee  thereof  charged  with  the  duty  of  investing  or  loaning  14 
the  funds  of  the  company;  nor  shall  any  deposit  be  made  in  a  bank  or  15 
Imnking  institution  unless  such  bank  or  banking  institution  has  first  IG 
been  approved  as  a  bank  of  deposit  by  the  board  of  directors  or  said  17 
committee  thereof,  and  unless  the  vote  authorizing  such  investment,  18 
sale  or  loan  or  approval  of  the  place  of  deposit  has  been  duly  recorded  19 
in  the  books  of  the  company.  20 

No  domestic  company  hereafter  acquiring  title  to  real  estate  under  21 
the  conditions  of  any  mortgage  owned  by  it,  or  by  purchase  or  set-off  22 
on  execution  upon  judgment  for  debts  due  it  previously  contracted  in  23 
the  course  of  its  business,  or  by  other  process  in  settlement  for  debts,  24 
shall  hold  it  for  a  longer  period  than  five  years  without  the  WTitten  25 
permission  of  the  commissioner;  nor  shall  any  such  company  invest  26 
in  real  estate  except  to  the  extent  that  may  be  necessary  for  its  con-  27 
venient  accommodation  in  the  transaction  of  its  business,  and  then  in  28 
no  case  to  exceed  ten  per  cent  of  its  invested  assets,  including  cash  in  29 
banks.  30 

Such  company  shall  not  engage  in  buying  or  selling  goods,  wares  or  31 
merchandise,  except  articles  insured  by  it  on  which  losses  are  claimed,  32 
and  except  in  replacing,  rebuilding  or  repairing  insured  property  as  pro-  33 
vided  in  its  policies.  34 

Section  65.     No  domestic  company  shall,  except  in  effecting  the  1 

sale  of  real  estate  owned  by  it,  and  then  only  with  the  approval  of  the  2 

commissioner,  invest  any  of  its  funds  in  loans  upon  mortgages  ex-  3 

cept  upon  the  conditions  expressed  in  the  fifth  paragraph  of  section  4 

sixtv-three.  5 


Investments 
of  life  com- 


Section  66.  No  domestic  life  company  shall  in\'est  any  of  its  funds  1 
p^Pi'^jjg  ^  _  in  any  unincorporated  business  or  enterprise,  or  in  the  stocks  or  evidence  2 
sop'. A. G.  14?;  of  indebtedness  of  any  corporation  the  owners  or  holders  of  which  3 
stock  or  evidence  of  indebtedness  may  in  any  event  be  or  become  liable  4 
on  account  thereof  to  any  assessment  except  for  taxes,  nor  shall  such  5 
life  company  invest  any  of  its  funds  in  its  own  stock  or  in  the  stock  6 
of  any  other  company.  No  such  company  shall  in\'est  in,  acquire  or  7 
hold  directly  or  indirectly  more  than  ten  per  cent  of  the  capital  stock  of  8 
any  corporation,  nor  shall  more  than  ten  per  cent  of  its  capital  and  9 
surplus  be  invested  in  the  stock  of  any  one  corporation.  No  such  com-  10 
pany  shall  subscribe  to  or  participate  in  any  underwTiting  of  the  pur-  11 
chase  or  sale  of  secm-ities  or  property,  or  enter  into  any  transaction  12 
for  such  purchase  or  sale  on  account  of  said  company  jointly  with  any  13 
other  person,  nor  shall  any  such  company  enter  into  any  agreement  14 
to  withhold  from  sale  any  of  its  property,  but  the  disposition  of  its  15 
property  shall  be  at  all  times  within  the  control  of  its  board  of  directors.  16 
3  0p.  A.G.  147.  Nothing  in  this  section  or  in  section  sixty-three  shall  prevent  such  17 
company  from  inN'esting  or  loaning  any  funds,  not  required  to  be  in-  IS 
vested  as  provided  in  subdivisions  one  to  eight,  inclusive,  of  section  19 
sixty-three,  in  any  manner  that  the  directors  may  determine;  proA-ided,  20 
that  such  funds  shall  not  be  invested  in  the  purchase  of  stock  or  evi-  21 
dence  of  indebtedness  prohibited  by  the  preceding  paragraph,  and  pro-  22 
vided  that  no  loan  of  such  funds  shall  be  made  to  an  individual  or  firm  23 
unless  it  is  secured  by  collateral  security.  24 

1909,95.  Nothing  in  this  section  or  in  section  sixtj'-three  shall  prevent  any  25 

such  life  company  from  entering  into  an  agreement  for  the  purpose  26 


8. 


Chap.  175.]  insurance.  1977 

27  of  protecting  the  interests  of  the  company  in  securities  lawfully  held 

28  by  it,  or  for  the  purpose  of  reorganization  of  a  corporation  which  issued 

29  securities  so  held,  and  from  depositing  such  securities  with  a  committee 

30  or  depositaries  appointed   under  such  agreement,  nor  from  accepting 

31  corporate  stock  or  bonds  or  other  securities  which  may  be  distributed 

32  pursuant  to  any  such  agreement,  or  to  any  plan  of  reorganization;  and 

33  nothing  in  this  section  or  section  sixty-tlii-ee  shall  prevent  any  such  life 

34  company  from  acquiring  or  holding  any  property  acquired  in  satisfac- 

35  tion  of  any  debt  previously  contracted,  or  that  shall  be  obtained  by 

36  sale  or  foreclosure  of  any  security  held  by  it;    pro\'ided,  that  if  the 

37  property  owned  be  such  as  is  prohibited  for  investment  by  such  com- 

38  pany,  it  shall  dispose  of  such  property,  if  personal,  •within  one  year, 

39  and  if  real   estate,  within  five  years,  from  the  date  when  it  acquired 

40  title  to  the  same,  unless  the  commissioner  shall  extend  the  time  for 

41  such  disposition  for  the  reason  that  the  interests  of  the  company  will 

42  suffer  materially  by  a  forced  sale  of  such  property. 

43  A  record  of  such  extension  shall  be  made  by  the  commissioner,  which 

44  shall  state  the  time  of  the  extension,  and  in  that  event  the  sale  of  said 

45  property  may  be  made  at  any  time  before  the  expiration  of  the  time 

46  of  such  extension. 

1  Section  67.     Nothing  in  the  charter  of  any  domestic  mutual  life  same  subject. 

2  company  shall  limit  the  investments  of    such  company  unless   such  Jsgf;  522  §  2s, 

3  limitation  is  contained  in  the  general  insurance  laws  in  force  at  the  f907"s7l'  ^ 

4  time  of  making  the  investment.  §§  ^i,  122. 

1  Section  68.     All  property  held  by  any  domestic  company  the  in-  Prohibited 

2  vestment  in  or  loan  on  which  by  such  company  is  prohibited  by  this  to'be's"lu'.'^ 

3  chapter  shall  be  sold  and  disposed  of  forthwith  unless  the  time  be  ex-  HqI'^  gj'''  ^  ^''■ 

4  tended  by  the  commissioner  in  the  manner  provided  in  section  sixty- 

5  six  or  has  been  so  extended. 

Provisions  as  to  Capital  Stock. 

1  Section  69.     If  the  net  assets  of  the  company  do  not  amount  to  Assessment 

2  more  than  three  fourths  of  its  capital,  it  may  make  good  its  capital  inipXwi. 

3  by  assessment  of  its  stock.  §'§'7-9^^'*' 

4  Shares  on  which  such  assessment  is  not  paid  within  sixty  days  after  jiji' P'^iV- 

5  demand  shall  be  forfeitable,  and  may  be  cancelled  by  a  vote  of  the  T^^h^'.f 

6  directors,  and  new  shares  issued  to  make  up  the  deficiency.  iss7, 214,  s  35. 

7  If  such  company  shall  not,  within  three  months  after  notice  from  r.  l'.  ns',  §  35! 

8  the  commissioner,  make  good  its  capital  as  aforesaid,  or  reduce  the  §§'3^8,^122. 

9  same  as  pro\ided  in  section  seventy-one,  its  authority  to  transact  new 
10  business  shall  cease. 

1  Section  70.     Such  company  may  issue  pro  rata  to  its  stockholders  increnseof 

2  certificates  of  any  portion  of  its  actual  net  surplus  it  may  decide  to  isja^ivs. 

3  divide,  which  shall  be  deemed  to  be  an  increase  of  its  capital  to  the  is75^'27's5 

4  amount  of  such  certificates,  or  such  company  may,  at  a  meeting  called  lF|lf^' 

5  therefor,  vote  to  increase  the  amount  and  number  of  shares  of  its  capital  p.  s.  119. 

6  stock,  and  to  issue  certificates  thereof  when  paid  in  full.    If  a  company  is87"'2i4. 1 36. 

7  shall  vote  to  increase  its  capital  in  the  second  of  tlie  two  ways  set  forth  n^t'.  ui]  | sei 

8  in  this  section,  the  directors  shall  fix  the  price,  not  less  than  par,  at  ^^fig^^zi. 

9  which,  and  the  time,  not  less  than  thirty  days  after  the  date  of  such  i^'^'  ^'^''■ 
10  vote  to  increase,  within  which  the  new  stock  may  be  taken  by  the 


1978  INSUE.iNCE.  [Ch.\p.   175. 

stockholders.  And  the  directors  shall  forthwith  give  wTitten  notice  to  11 
each  stockholder  who  was  such  at  the  time  of  the  vote  to  increase,  12 
stating  the  amount  of  the  increase,  the  number  of  shares  or  fractions  13 
of  shares  of  new  stock  that  such  stockholder  is  entitled  to  take,  the  14 
price  at  which  and  the  time  within  which  such  new  stock  may  be  taken.  15 
Within  said  time  each  stockholder  may  take,  at  the  price  fixed  as  afore-  16 
said,  his  proportion  of  such  new  shares  at  the  date  of  such  vote  to  in-  17 
crease.  If  at  the  expiration  of  such  time  any  shares  remain  untaken,  18 
the  directors  may  sell  the  same  for  the  benefit  of  the  corporation  in  19 
such  manner  and  for  such  price,  not  less  than  the  price  fixed  as  afore-  20 
said,  as  they  may  determine.  In  whichever  mode  the  increase  is  made,  21 
the  company  shall,  within  thirty  days  after  the  issue  of  such  certifi-  22 
cates,  submit  to  the  commissioner  a  certificate  setting  forth  the  pro-  23 
ceedings  thereof  and  the  amount  of  such  increase,  signed  and  sworn  to  2-1 
by  its  president  and  secretary  and  a  majority  of  its  directors.  If  the  25 
commissioner  finds  that  the  increase  is  made  in  conformity  to  law,  he  26 
shall  endorse  his  approval  thereon;  and  upon  filing  such  certificate  so  27 
endorsed  'vsith  the  state  secretary  and  the  payment  of  a  fee  of  five  dollars  28 
for  filing  the  same,  the  company  may  transact  business  upon  tJie  capital  29 
as  increased,  and  the  commissioner  shall  issue  his  certificate  to  that  effect.  30 

?f'^^a"pTtai"            Section  71.     If  the  capital  stock  of  a  company  is  impaired  as  set  1 

Ifi-i''          forth  in  section  six,  such  company  may,  upon  a  %-ote  of  a  majority  of  2 

f§  65^68'          ^^^^  stock  represented  at  a  meeting  legally  called  for  that  purpose,  re-  3 

1S87, 214.  §  37.  duce  its  capital  stock  and  the  number  of  shares  thereof  to  an  amount  4 

li.  L.  lis',  §  s7.  not  less  than  the  minimum  amount  required  by  sections  forty-eight  and  5 

§§°46,^i22.        fifty-one.    But  no  part  of  its  assets  and  property  shall  be  distributed  to  6 

its  stockliolders.  7 

Within  ten  days  after  such  meeting  the  company  shall  submit  to  S 

the  commissioner   a  certificate   setting  forth  the  proceedings   thereof  9 

and  the  amount  of  such  reduction  and  the  assets  and  liabilities  of  the  10 

company,  signed  and  sworn  to  by  its  president,  secretary  and  a  ma-  11 

jority  of  its  directors.    If  the  commissioner  finds  that  the  reduction  is  12 

made  in  conformity  to  law  and  that  it  will  not  be  prejudicial  to  the  13 

public,  he  shall  endorse  his  approval  thereon  and  upon  filing  the  cer-  14 

tificate,  so  endorsed,  with  the  state  secretary  and  paying  a  fee  of  fi^•e  15 

dollars  for  the  filing  thereof,  the  company  may  transact  business  upon  16 

the  capital  as  reduced,  and  the  commissioner  shall  issue  his  certificate  17 

to  that  effect.  IS 

Such  company  may,  by  a  majority  vote  of  its  directors,  after  such  19 

reduction,  require  the  return  of  the  original  certificates  of  stock  held  20 

l>y  each  stockliolder  in  exchange  for  new  certificates  which  it  may  issue  21 

in  lieu  thereof  for  such  number  of  shares  as  each  stockholder  is  entitled  22 

to  in  the  proportion  that  the  reduced  capital  bears  to  the  original  23 

capital.  24 

1817? i2a'§  2.        Section  72.     No  stock  company  shall  make  a  dividend,  citlier  in  1 

isol;  252,S'io.  '^^sh  or  stock  certificates,  except  from  its  actual  net  surplus  computed  2 

187''  375^^17  ^^  required  by  law  in  its  annual  statement,  nor  shall  any  such  com-  3 

1874',  222.'         pany  which  has  ceased  to  do  new  business  divide  any  portion  of  its  4 

1877;  36.'  assets,  except  surplus,  to  its  stockholders  until  it  shall  have  performed  5 

§§'i,'2.  ■  or  cancelled  its  policy  obligations.     Any  such  company  may  declare  6 

["ilg^TO,  72.      and  pay,  annually  or  semi-annually  from  its  surplus,  cash  dividends  to  7 

isll;  289.'  ^  ^*'  its  stockholders  of  not  more  than  ten  per  cent  of  its  capital  stock  in  8 


Chap.  175.]  estsubance.  1979 

9  a  year,  and  if  the  dividends  in  any  year  are  less  than  ten  per  cent  the  is94, 322.  §  ss. 

10  difference  may  be  made  up  in  any  subsequent  year  from  surplus  accumu-  fno?,'  sto,'  ^  ^*' 

11  lations;  but  any  such  company  may  pay  such  dividend  as  the  directors  flill'sg^^" 

12  may  consider  prudent  out  of  any  surplus  remaining  after  deducting  from 

13  the  assets  all  securities  and  book  accounts  on  which  no  part  of  the  prin- 

14  cipal  or  interest  has  been  paid  within  the  last  year  and  for  which  fore- 
1.5  closure  or  suit  has  not  been  commenced  for  collection,  or  which  after 

16  judgment  obtained  thereon  shall  have  remained  more  than  two  years 

17  unsatisfied  and  on  which  interest  shall  not  have  been  paid,  and  also 

18  deducting  all  interest  due  and  unpaid  on  any  property  of  the  company. 

Mutual  Companies. 

1  Section  73.     No  policy  shall  be  issued  by  a  mutual  fire  company  Mutual  fire 

2  organized   subsequent   to   April   twenty-third,    eighteen   hundred   and  iss™e  o"'*"^' 

3  ninety-four,  nor  by  a  mutual  fire  company  with  a  guaranty  capital  of  isss'^uy,  5  5 

4  less  than  one  hundred  thousand  dollars,  until  not  less  than  one  million  f^.f  ^l-  §  ^^■ 

5  dollars  of  insurance,  in  not  less  than  four  hundred  separate  risks  upon  1S54!  453,  s  22. 

6  property  located  in  the  commonwealth,  has  been  subscribed  for  and  isss!  iso.' 

7  entered  on  its  books.    No  policy  shall  be  issued  under  this  section  until  1372: 375,  §  10. 

8  a  list  of  the  subscribers  for  insurance,  with  such  other  information  as  i\a'n9, 

9  he  may  require,  shall  have  been  filed  with  the  commissioner,  nor  until  flgyfa^H,  §  39, 

10  the  president  and  secretary  of  the  company  shall  have  certified  on  oath  P^^i^gg' 

11  that  every  subscription  for  insurance  in  the  list  so  filed  is  genuine  and  lllflf^- 

12  made  with  an  agreement  with  every  subscriber  for  insurance  that  he  will  R.  l!  us.  §  30. 

13  take  the  policies  subscribed  for  by  him  within  thirty  days  of  the  grant-  1907!  S76', 

14  ing  by  the  commissioner  of  a  certificate  to  issue  policies  as  provided  by  flittsMf' 

15  section  thirty-two.     If  such  officei-s  shall  make  a  false  oath  relative  to  ^^^^■*''- 

16  such  list,  they  shall  be  guilty  of  perjury.  Op.  a.  g.  (1919)  120. 

1  Section  74.     No    mutual    fire    company    operating    on    the    cash  certain  mutual 

2  premium  plan  as  provided  in  section  eighty-one,  nor  any  mutual  fire  notto'm'akT^ 

3  company  with  a  guaranty  capital  of  less  than  one  hundred  thousand  'uranTe  wUh- 

4  dollars,  either  of  which  has  become  insolvent,  or  through  reinsurance  or  ?qo4  g'JJiV^"'''^' 

5  cancellation  or  expiration  of  risks  has  on  its  books  less  than  one  million  wo?^  570^ 

6  dollars  of  insurance  in  force,  not  reinsured,  or  has  less  than  foiu*  hundred  19127403T 

7  separate  risks  in  the  commonwealth,  shall  make  any  further  insurance 
S  until  it  has  secured  applications  for  policies  which,  together  with  the 
9  unreinsured  risks  in  force,  shall  amount  to  not  less  than  one  million 

10  dollars  in  not  less  than  four  hundred  separate  risks  in  the  common- 

11  wealth,  said  applications  to  be  subject  to  the  provisions  of  the  pre- 

12  ceding  section  applying  to  the  subscriptions  for  insurance  in  a  new 

13  company;    provided,  that  whenever  such  reinsurance  has  been  effected 

14  for  the  purpose  of  reducing  the  company's  liability  on  account  of  ex- 

15  cessive  loss,  the  number  and  amount  of  said  applications  for  policies 

16  shall  not  be  required  within  one  year  thereafter.     Upon  the  filing  of 

17  applications  under  tliis  section  with  the  commissioner,  he  may  make 

18  such  investigation  as  he  deems  proper,  and,  if  his  findings  warrant  it, 

19  grant  a  certificate  to  such  company  to  issue  policies. 

1  Section  75.     No  officer  or  other  person  whose  duty  it  is  to  deter-  Compens.ition 

2  mine  the  character  of  the  risks,  and  upon  whose  decision  the  appli-  det'ermi'ning 

3  cation  shall  be  accepted  or  rejected  by  a  mutual  fire  company,  shall  I'lglisoo; 

4  receive  as  any  part  of  his  compensation  a  commission  upon  the  pre-  iggo^ilo 


1980  msTJRANCE.  [Chap.  175. 

1897, 62.  miums;  but  his  compensation  shall  be  a  fixed  salary,  and,  if  the  directors     5 

1904.'  300.'       '  so  determine,  a  share  of  the  net  profits.    Nor  shall  such  officer  or  person     6 
§§'42  ^22.        aforesaid  be  an  employee  of  any  officer  or  agent  of  the  company.  7 

1912,403. 

Membera  of  SECTION  76.     Every  person  insured  by  a  mutual  fire  company  shall  1 

companies.        be  a  member  while  his  policy  is  in  force,  entitled  to  one  vote  for  each  2 

R.  s.' 37, '§  3o:    policy  he  holds,  and  shall  be  notified  of  the  time  and  place  of  holding  3 

lilt',  252;  §  M:  its  meetings  by  a  wTitten  notice  or  by  an  imprint,  in  type  not  smaller  4 

?87o',  sfofir.    tlian  long  primer,  upon  the  filing-back  of  each  policy,  receipt  or  certifi-  5 

p^s^'no!'         cate  of  renewal,  as  follows:  6 

§§  78,  so!  . 

1894'  522  I  4a       The  assured  is  hereby  notified  that  by  virtue  of  thi.s  policy  he  is  a  member  of 
R.  l'.  lis',  §  40^  the  Insurance  Company,  and  is  entitled  to  vote  either  in  person 

§hVi''2  or  by  proxy  at  any  and  all  meetings  of  said  company.    The  annual  meetings  are 

Op.  A.  G.  ■        held  at  its  home  office  on  the  day  of  in  each  year,  at 

(1920)  258.  o'clock. 

Penalty,  §  1S8. 

The  blanks  shall  be  duly  filled  in  print,   and    shall  be  a  sufficient  7 

notice.  8 

liil'  453  §  16       A  corporation  becoming  a  member  of  such  company  may  authorize  9 

isss;  252' §^2g:  any  person  to  represent  it  in  such  company,  and  such  representative  10 

P.S.119.  §  S4.   shall  have  all  the  rights  of  any  individual  member.  11 

1887,214,140.  1894,  522,  §  40.  R.  L.  118.  §  40.  1907,  570,  §§  43,  122. 


s?s,  §  59.      Any  person  holding  property  in  trust  may  insure  the  same  in  such  12 
3^7  2H  ^4^6  company,  and  as  such  trustee  assume  the  liabilities  and  be  entitled  to  13 


1843.  8: 

G 

P. 

1894!  622!  §40!  thc  rights  of  a  member,  but  shall  not  be  personally  liable  upon  such  14 

R.  Lf.  lis, 
§40. 


contract  of  insurance.                               i907,  576,  §§  43, 122.  1.5 

TuthJIrLed            Mcmbcrs  may  vote  by  proxies  dated  and  executed  within  three  16 

1835, 147,  §  3.    months,  and  returned  and  recorded  on  the  books  of  the  company  tliree  17 

1S54',  453,  §  15.  days  or  more,  before  the  meeting  at  which  they  are  to  be  used.     No  18 

a'^s!  isr's  43!*'  person  shall,  as  attorney  or  otherwise,  cast  more  than  twenty  votes,  and  19 

Ra'n9,'5  80.    no  officer  shall,  himself  or  by  another,  ask  for,  receive,  procure  to  be  20 

liol;  522, 1 4°:  obtained  or  use  a  proxj-  to  vote.         R.  i..  ns,  §  40.          1907,  576,  §§  43, 122.  21 

compares"  SECTION  77.     Every  such  company  shall  elect  by  ballot  a  board  of  1 

d^recTore  dircctors  as  provided  in  and  subject  to  section  fifty-seven,  except  that  2 

1835, 147,  it  shall  consist  of  not  less  than  seven  members  and  that  five  shall  con-  3 

R.  s'.  37,  stitute  a  quorum.     After  the  first  election  members  only  shall  be  eli-  4 

is54^4M,  §  15.  gible,  but  no  director  shall  be  disqualified  from  serving  the  term  for  5 

§§^23,^25,'  37.  wliich  hc  was  elected  by  reason  of  the  termination  of  his  policy.    Such  6 

?§  43^45  40  companies  having  a  guaranty  capital  shall  choose  one  half  of  the  direc-  7 

ll?i:23o:^''-  tors  from  the  stockholders.  8 

1879,  58.  1894,  522.  §  40.  1915,  7,  §  1. 

P.  S.  119,  5§  79,82,  S3.       R.  L.  lis,  §§40.  41.         8  .\llen,  217. 
1SS7,  214,  §  40.  1907,  576,  |§  43,  44,  122.      Op.  A.  G.  C1920)  25.8. 

?85Br252,  Such  board  may  call  special  meetings  of  the  cornpany,  of  which  each     9 

G.l^'sl!"  member  shall  have  such  notice  as  the  by-laws  provide,  and  they  shall  10 

p  sMo'  f'^1^  ^^'^^  meetings  when  requested  in  writing  by  twenty  members  or  11 

^3?'^?';  ,  .,  bv  the  owners  of  one  fifth  of  the  guaranty  capital,  stating  the  purpose  12 

1S87,  214.  §  41.      i*"  n  TO 

1894. 522,  §  41.  thereof.  r.  l.  iis,  §4i.  i907, 576,  §§44, 122.  16 

how'^afild.'  Vacancies  in  any  office  may  be  filled  in  such  manner  as  the  by-laws  14 

provide.  15 

compaiier  SECTION  78.     Such   compauics   shall    be    subject   to   the   first   para-     1 

certain* scrtions.  graph  of  scctlou  fifty-cight,  cxccpt  that  a  treasurer  shall  be  chosen,  and     2 


Chap.  175.]  insue.\nce.  1981 

3  to  section  fifty-nine,  except  that  the  secretary  shall  keep  a  record  of  all  Jf'''!']*'''  ^  *• 

4  proceedings  of  the  meetings  of  the  members,  and  to  the  first  and  third  §§  26, 27. 

5  paragraphs  of  section  sixty. 

1851,157.  P.  S.  119,  §§  81,83.         R.  L.  118,  §  41. 

1856,  252,  5§  24,  37.         1887,  214,  §  41.  1907,  576,  §§  44,  122. 

G.  S.  58,  §§  44,  46.  1894,  522,  §  41.  190S,  471,  §  1. 

1  Section  79.     A  mutual  fire  company  may  be  formed  with,  or  an  Guaranty 

2  existing  mutual  fire  company  may  establish,  a  guaranty  capital  of  not  Dividends. 

3  less  than  twenty-fi^■e  thousand  nor  more  than  two  hundred  thousand  i8'72"3"75,"'' 

4  dollars,  divided  into  shares  of  one  hundred  dollars  each,  to  be  invested  f|73|'i77. 

5  as  provided  by  this  chapter  for  the  investment  of  the  capital  stock  jl^'  ||5'  §  '• 

6  of  domestic  companies.    The  stockholders  of  the  guaranty  capital  shall  ?;§;,U|^' 

7  be  entitled  to  a  semi-annual  di\idend  of  not  more  than  three  and  one  half  i8S7,  214,  §  42. 

8  per  cent  on  their  respective  shares  if  the  net  profits  or  unused  premiums,  1894!  522,  §  42. 

9  left  after  all  expenses,  losses  and  liabilities  then  incurred,  with  the  reser\-e  ^°t  n%  §  42. 

1 0  for  reinsurance,  are  pro\dded  for,  shall  be  sufficient  to  pay  the  same.   The  ll°Ji^^{2i. 

1 1  guaranty  capital  shall  be  applied  to  the  pajinent  of  losses  only  when  ^^^  ^'^if-  ^o^. 

12  the  company  has  exhausted  its  assets,  exclusiveof  uncollected  premiums;  (1920)  25s. 
v.]  and  when  thus  impaired,  the  directors  may  make  good  tlie  whole  or  any 

11  part  of  it  by  assessments  upon  the  contingent  funds  of  the  company  at 
1,5  the  date  of  such  impairment.  Shareholders  and  members  of  such  com- 
10  panics  shall  be  subject  to  the  same  provisions  of  law  relative  to  their 
17  right  to  vote  as  apply  respectively  to  shareholders  in  stock  companies 
IS  and  policy  holders  in  mutual  companies;  ami  said  guaranty  capital  shall 

19  be  retired  when  the  profits  accumulated  under  section  eighty  ecjual  two 

20  per  cent  of  its  insurance  in  force;    and  said  guaranty  capital  may  be 

21  reduced  or  retired  by  vote  of  the  policy  holders  of  the  company  and  the 

22  written  assent  of  the  commissioner,  if  the  net  assets  of  the  company 
2,'5  above  its  reinsurance  reserve  and  all  other  claims  and  obligations,  ex- 

24  clusi^'e  of  guaranty  capital,  for  two  years  last  preceding  and  including 

25  the  date  of  its  last  annual  statement,  shall  be  not  less  than  twenty-five 

26  per  cent  of  the  guaranty  capital.     Due  notice  of  such  proposed  action 

27  on  the  part  of  the  company  shall  be  mailed  to  each  policy  holder  of  the 

28  company  not  less  than  thirty  days  before  the  meeting  when  such  action 

29  may  be  taken,  and  shall  also  be  adAcrtised  in  two  papers  of  general 

30  circulation,  approved  by  the  commissioner,  not  less  than  three  times  a 

31  week  for  a  period  of  not  less  than  four  weeks  before  said  meeting.    No 

32  company  with  a  guaranty  capital  which  has  ceased  to  do  new  business 

33  shall  divide  among  its  stockholders  any  part  of  its  assets  or  guaranty 

34  capital,  except  income  from  investments,  until  it  shall  have  performed 

35  or  cancelled  its  policy  obligations. 

1  Section  80.     From  time  to  time  the  directors  of  a  mutual  fire  com-  Dividends. 

2  pany  may  by  vote  fix  and  determine   the  percentages  of  dividend  or  profits"e'tcr 

3  expiration  return  of  premium  to  be  paid  on  expiring  policies,  which  r*^|;  37!'^'§y"' 

4  may  in  their  discretion  be  different  for  policies  insuring  farm,  manu-  }|^g;  25!;  |  io. 

5  facturing  or  storage  risks  from  those  insuring  other  classes  of  risks  of  ^^s.  ss, 

6  the  same  term.     But  policies  insuring  risks  in  the  commonwealth  in  i|63,  240,  §  0. 

7  the  same  classification  shall  have  an  equal  rate  of  dividend  or  return  §§3,' 5. 

8  premium,  and  in  case  of  an  assessment  the  rate  thereof  may  be  dif-  §§90.97'. 

9  ferent  for  policies  insuring  farm,  manufacturing  or  storage  risks  from  §§^«,^4'*.' 

10  that  on  policies  insuring  other  classes  of  risks  for  the  same  term;  but  }s9j;522, 

11  policies  insuring  risks  in  the  same  class  shall  have  the  same  rate  of  as-  ilgy'^'igy  5 1 


1982  INSURANCE.  [Chap.  175. 

R.  L.  lis,         sessment.    Every  policy  placed  in  the  said  class  of  farm,  manufacturing  12 

im'm.         or  storage  risks  shall,  when  issued,  bear  an  endorsement  to  the  effect  13 

If Ih^l?:  122.    that  it  is  so  classified.  14 

1909  39o'             ^ny  such  company  may  accumulate  and  hold  profits,  but  only  until  15 

191?' q''^'          ^""^h  profits  equal  four  per  cent  of  its  insurance  in  force;  and  such  ac-  IG 

9  Allen.  29.        cumulatiou  shall  be  subject  to  the  laws  relative  to  the  investment  of  17 

4  0p.  a!g.    ■   the  capital  stock  of  domestic  companies,  and  may  be  used  from  time  IS 

to  time  in  the  paAonent  of  losses,  di\adends  and  expenses.  19 

E%-ery  policy  holder  of  a  domestic  company  and  every  policy  holder  20 

in  this  commonwealth  of  a  foreign  company  shall  be  notified,  at  his  last  21 

known  address,  within  six  months  after  the  expiration  of  his  pohcy,  of  22 

the  amount  of  any  di^■idend  declared  and  payable  thereon,  unless  in  the  23 

meantime  such  dividend  has  been  paid  in  cash  or  applied  in  paj-ment  24 

of  the  premium  on  the  renewal  of  the  policy.  25 

Premium.             SECTION  81.     Mutual  fire  Companies,  except  as  provided  in  the  follow-  1 


552. 


Contingent 


O 


iiahiiit.v  ing  section,  shall  charge  and  collect  upon  their  policies  a  full  mutual 

p.  s.' Ill),' §97.    premium  in  cash  or  notes  absolutely  payable.     Any   such  company  3 

1894!  522!  i  %'.  may  in  its  by-laws  and  policies  fix  the  contingent  mutual  liability  of  4 

Mm.  576.'  ^  '*"■  its  members  for  the  payment  of  losses  and  expenses  not  provided  for  5 

1  o*p*'a."g.       by  its  cash  funds,  but  such  contingent  liability  of  a  member  shall  not  6 

o^A  G          be  less  than  an  amount  equal  to  and  in  addition  to  the  cash  premium  7 

(1920)140.        T^Titten  in  his  policy.    The  total  amount  of  the  liability  of  the  policy  S 

holder  shall  be  plainly  and  legibly  stated  upon  the  filing-back  of  each  9 

policy.    WTienever  any  reduction  is  made  in  the  contingent  liability  of  10 

members,  such  reduction  shall  apply  proportionally  to  all  policies  in  11 

force.  12 

Mmplnies             SECTION  82.     ^lutual  fire  companies  organized  prior  to  May  twenty-  1 

may  take          Q^^f   eighteen  hundred  and  eightv-seven,  and  now  lawfully  doing  busi-  2 

deposit  notes.                 J        t?                   ,             «        ,  .          ,            •                     r>                                            e     i  o 

1876, 120,         ness  upon  the  plan  of  takmg  deposit  notes  tor  a  percentage  or  the  amount  6 

1877, 198.         insured  by  their  policies,  and  making  a  call  or  assessment  thereon  for  4 

Rs'iil.'''        expenses  and  for  the  paj-ment  of  losses  only  after  such  losses  are  in-  5 

ils^la^ii  J  46.  curred,  may  continue  such  system  of  business,  and  such  deposit  notes  6 

R  ^L  lis,  1 46:  shall  constitute  the  entire  liability  of  their  members.  7 

1907,  576,  §§  49,  122.  1  Op.  A.  G.  158.  Op.  A.  G.  (1920)  140. 

is35!^i47"?7.        Section  83.     If  a  mutual  fire  company  is  not  possessed  of  assets  1 

?8m;  453,^^18.  above  its  unearned  premiums  sufficient  for  tlie  paj-ment  of  incurred  2 

i|5|J252,'^^      losses  and  expenses,  it  shall  make  an  assessment  upon  its  members  liable  3 

G  S.58,'    '     to  assessment  therefor,  in  proportion  to  their  several  liabilities,  for  the  4 

1863, '249,  §4.    amount  needed  to  pay  such  losses  and  expenses.  5 

1877;  198.             The  company  shall  cause  to  be  recorded  in  a  book  kept  therefor  the  6 

l§  97-100, 107.  order  for  such  assessment,  with  a  statement  setting  forth  the  condition  7 

H  «,^47,'4s.     o^  the  company  at  the  date  of  the  order,  the  amount  of  its  cash  assets  8 

1S94622          ^^'^  °^  its  deposit  notes  or  other  contingent  funds  liable  to  the  assess-  9 

§§44,47,'48      ment,  the  amount  which  the  assessment  calls  for,  and  the  particular  10 

R.Liiis!     '    losses  or  other  liabilities  for  which  it  is  to  provide.    The  said  record  11 

ilol'^'sre,^*'      shall  be  made  and  signed  by  the  directors  voting  for  the  order,  before  12 

i9i3°'343^'        any  part  of  the  assessment  is  collected,  and  any  person  liable  to  the  13 

7  A"e^n,^23\  ^°'  asscssmcnt  may  inspect  and  take  a  copy  of  the  same.                             _  14 

9  Allen  319           ^^  ^y  Tcason  of  any  depreciation  or  loss  of  its  funds  or  otherwise  15 

*S3.    '     '      the  assets  of  such  a  company,  after  providing  for  its  other  debts,  are  16 


CH-VP.   175.]  INSURANCE.  1983 

17  less  than  the  unearned  premiums  upon  its  policies,  it  shall  make  good  no'^Ma^'s^iib 

18  the  deficiency  by  assessment  in  the  mode  above  provided;    or  the  di-  }^|  i*.  is^. ' 

.ini  1  ^  ,        r>  117  Mass.  30. 

19  rectors  may,  instead  or  such  assessment,  make  two  assessments,  the  nrst  i79  Mass.  lo. 

20  determining  what  each  policy  holder  must  equitably  pay  or  receive  in 

21  case  of  his  withdrawal  from  the  company  and  the  cancellation  of  his 

22  policy,  the  second  determining  what  further  amount  each  must  pay  to 

23  continue  the  policy  for  its  unexpired  term,  and  being  for  such  propor- 

24  tion  of  the  unearned  premium  as  the  directors  may  fix  by  vote,  but 

25  in  no  event  to  exceed  the  amount  of  such  unearned  premium.     Each 

26  policy  holder  shall  pay  or  receive  according  to  the  first  assessment,  and 

27  his  policy  shall  then  be  cancelled  unless  he  pays  the  further  amount 

28  determined  by  the  second  assessment,  in  which  case  his  policy  shall 

29  continue  in  force  for  its  unexpired  term;    but  in  neither  case  shall  a 

30  policy  holder  receive  or  have  credited  to  him  more  than  he  would  have 

31  received  on  having  his  policy  cancelled  by  the  company  in  accordance 

32  with  the  terms  of  the  policy.  ' 

33  If  within  two  months  after  such  alternative  assessments  have  be- 

34  come  collectible  the  amount  of  the  policies  whose  holders  have  settled 

35  for  both  assessments  is  less  than  one  million  dollars,  the  company  shall 

36  cease  to  issue  policies;   and  all  policies  whose  holders  have  not  settled 

37  for  both  assessments  shall  be  void,  and  the  company  shall  continue  only 

38  for  the  purpose  of  adjusting  the  deficiency  or  excess  of  premiums  among 

39  the  members  and  settling  outstanding  claims. 

40  Each  policy  holder  shall  be  liable  to  pay  his  proportional  part  of  any 

41  assessments  laid  by  the  company  in  accordance  with  law  and  his  con- 

42  tract,  on  account  of  losses  and  expenses  incurred  while  a  member,  if 

43  he  is  notified  of  such  assessment  within  one  year  after  the  expiration 

44  or  cancellation  of  his  policy;   and  when  an  assessment  is  ordered,  the 

45  directors  shall  forthwith  cause  written  notice  and  demand  for  paj-ment 

46  to  be  made  upon  each  person  subject  thereto,  by  mail  or  personal 

47  service. 

1  Section  84.     If  the  directors  by  authority  of  law  make  an  assessment  Supreme 

^  .,  I  IP  11-  •         jurucial  court 

2  or  call  on  the  members  tor  money,  or  vote  that  there  exists  a  necessity  n.ay  review 

3  therefor,  they  or  any  person  interested  in  the  company  as  an  officer,  assMsment. 

4  policy  holder  or  creditor  may  apply  to  the  supreme  judicial  court  for  §§^-3''*'' 

5  any  county,  by  a  petition  in  equity,  praying  the  court  to  examine  such  §f  s^'s^*®' 

6  assessment  or  call,  the  necessity  therefor,  and  all  matters  connected  \lyi-i%- 

7  therewith,  and  to  confirm,  amend  or  annul  the  assessment  or  call,  or  to  fj^j!}iJ'A. 

8  order  the  same  to  be  made  as  law  and  justice  may  require;   but  if  an  is.s7,  214.  §40. 

n  I-       X-  ■       ^     J       I,  ^  i    ji  ^  -1  '  _  1894,  522.  I  49. 

y  application  is  made  by  any  party  except  the  company,  or  a  receiver,  r,  l.  11s,  §49. 

10  or  the   commissioner,  the   court  may  decline  to  exercise  jurisdiction  ^^"s^i.Ysli. 

11  thereof.     If  the  directors  unreasonably  neglect  to  make  an  assessment  ?/Anenfs74 

12  or  call  to  satisfy  an  admitted  or  ascertained  claim  upon  the  company,  any  JJI  ^■'»*'-  "2. 

13  judgment  creditor,  or  any  person  holding  such  claim,  or  the  commis-  niMass. 4S4. 

14  sioner,  may  make  the  application  to  the  court.    Upon  such  application, 

15  if  made  by  the  directors,  or  upon  an  order  of  the  court,  if  made  by  any 

16  other  person,  the  directors  shall  set  forth  the  claims  against  the  com- 

17  pany,  its  assets,  and  all  other  facts  and  particulars  appertaining  thereto. 

18  The  court  shall  order  notice  by  publication  or  otherwise  to  all  parties 

19  interested,  and  upon  the  return  thereof  shall  examine  the  assessment 

20  or  call,  or  the  necessity  therefor,  and  all  matters  connected  therewith. 

21  Any  parties  interested  may  appear  and  be  heard  thereon.    All  questions 

22  arising  shall  be  heard  and  determined  as  in  other  equity  cases. 


1984 


INSL-E.iNCE. 


[Chap.  175. 


The  application  shall  be  referred  to  an  auditor,  who  shall  appoint  a  23 
time  and  place  to  hear  all  parties  interested,  and  shall  give  personal  24 
written  notice  thereof  to  the  commissioner,  and  by  mail,  so  far  as  he  is  25 
able,  to  all  persons  liable  upon  said  assessment  or  call.  The  auditor  26 
shall  hear  the  parties,  and  report  upon  the  correctness  of  the  assessment  27 
or  call,  and  all  matters  connected  therewith.  The  court  may  confirm,  28 
amend  or  annul  the  assessment  or  call,  or  order  one  to  be  made,  and  29 
may  make  such  orders  and  decrees  as  under  all  the  circumstances  justice  30 
and  equity  require.  If  the  assessment  or  call  is  altered  or  amended,  or  31 
one  is  ordered  to  be  made,  the  directors  shall  forthwith  proceed  to  vote  32 
the  same  in  legal  form,  and  the  record  of  such  vote  shall  be  set  forth  in  33 
a  supplemental  bill  or  answer.  34 

When  an  assessment  or  call  has  been  so  confirmed,  ascertained  or  35 
established,  a  decree  shall  be  entered  which  shall  be  final  and  conclusive  36 
upon  the  company  and  all  persons  liable  to  the  assessment  or  call  as  to  37 
its  necessity,  the  authority  of  the  company  to  make  or  collect  it,  the  38 
amount  thereof,  and  all  formalities  connected  therewith.  An  assess-  39 
ment  or  call  altered  or  amended  by  vote  of  directors  and  decree  of  the  40 
court  thereon  shall  be  binding  upon  all  parties  who  would  have  been  41 
liable  under  it  as  originally  made,  and  in  all  legal  proceedings  shall  be  42 
held  to  be  such  original  assessment  or  call.  All  such  proceedings  shall  43 
be  at  the  cost  of  the  company  unless  the  court  for  cause  otherwise  orders,  44 
and  in  all  cases  the  court  may  control  the  disposition  of  the  funds  col-  45 
lected  under  such  proceedings.  46 

If  the  com-t  finds  that  the  net  proceeds  of  any  assessment  or  call  will  47 
be  insufficient  to  furnish  substantial  relief  to  those  having  claims  against  48 
th^. company,  it  may  decree  that  no  assessment  shall  be  collected;  and  49 
if,  upon  the  application  of  the  commissioner  or  a  member  of  the  com-  50 
pany  or  of  any  person  interested,  the  court  is  of  opinion  that  further  51 
attempts  to  collect  an  assessment  then  partially  collected  will  not  benefit  52 
those  having  claims  against  the  company,  it  may  stay  the  further  col-  53 
lection  of  said  assessment.  54 


Penalty  for 

guaranty 

against  as 

- 

sessnient. 

1S60, 

149. 

P.  S. 

119, 

§108. 

18S7, 

214, 

§§  50,  106 

Personal 

liability  of 

officers. 

1S6S. 

317, 

§2. 

P.S. 

119, 

§  109. 

1887. 

214, 

§  50. 

1894, 

522, 

§50. 

R.  L. 

118, 

§  50. 

1907, 

576, 

§§52 

,  122 

1833, 

147, 

§0. 

U.S. 

37, 

§33. 

1854, 

453, 

§  19. 

1850, 

522, 

§28. 

G.  S. 

58, 

§4B. 

P.S. 

119, 

§112 

1887, 

'214. 

§  50. 

1894, 

522, 

§  50. 

R.  L. 

118, 

§  50. 

1835, 

147, 

§8. 

R.  S. 

37, 

§  32. 

1854, 

453, 

§  18. 

1858, 

252, 

§27. 

G.  S. 

58, 

S  48. 

Section  85.  A  director  or  other  officer  of  a  mutual  fire  company 
who  officially  or  privately  gives  a  guaranty  to  a  policy  holder  thereof 
against  an  assessment  to  which  he  woulil  otherwise  be  liable  shall  be 
punished  by  a  fine  of  not  more  than  one  hundred  dollars. 

1894,  522,  §§  50,  106.  R.  L.  118,  §§  50,  106.  1907,  576,  §§  52,  115,  122. 


If  the  directors  of  any  such  company  neglect  or  omit  for  six  months  5 

to  lay  and  collect  with  all  practicable  diligence  any  assessment  they  are  6 

required  to  make  by  sections  eighty-three  and  eighty-four,  they  shall  7 

be  personally  liable  for  all  debts  and  claims  then  outstanding  against  8 

the  company,  or  that  may  accrue  until  such  assessment  is  laid  and  put  in  9 

process  of  collection.  10 

If  the  treasurer  of  such  company  unreasonably  neglects  to  collect  an  11 

assessment  made  by  order  of  the  directors,  and  to  apply  the  same  to  the  12 

payment  of  the  claims  for  which  it  was  made,  he  shall  be  personally  13 

liable  to  the  person  having  such  claims  for  the  amount  of  the  assessment,  14 

and  he  may  repay  himself  out  of  any  money  afterward  received  for  the  15 

company  on  account  of  said  assessment.                i907,  576,  §§  52, 122.  16 

If  sufficient  property  of  any  such  company  cannot  be  found  to  satisfy  17 

an  execution  against  it,  and  it  has  property  belonging  to  the  period  as-  18 

sessed  the  proceeds  of  which  can  be  applied  to  satisfy  such  execution,  if  19 


Ch.\P.   175.]  INSUR-iNCE.  1985 

20  the  directors  neglect  to  pay  the  same,  or  neglect  for  thirty  days  after  the  p.  s.  ii9.  §  iio. 

21  rendition  of  judgment  to  make  an  assessment  and  deliver  the  same  to  1S94!  522!  |  so! 

22  the  treasurer  for  collection,  or  to  apply  such  assessment  when  collected  fgj^i  57I;  *  ^■ 

23  to  the  payment  of  the  execution,  they  shall  be  personally  liable  for  the  fos^jia^^si 

24  amount  of  the  execution. 

25  If  the  directors  of  any  such  company  are  liable  to  pay  an  execution  isss,  147,  §  10. 

26  against  it,  the  creditor  may  recover  the  same  by  a  suit  in  equity  or  by  §§  34. 35. 

27  an  action  at  law  against  the  directors.    The  director  who  pays  an  execu-  isx,  252!  §  29! 

28  tion  against  the  company  for  which  he  is  personally  liable  may  sue  in  p.l'ng.fiii. 

29  equity  for  contribution  any  of  the  directors  for  their  proportion,  and  }g|p  ^y- 1  j^- 

30  also  the  companv  or  the  individual  members  thereof  to  the  extent  of  J*- l-  U?'  ^  ^''• 

1      •  1    1*    1    M*  IP  190*.  o7o, 

31  then- several  liability  to  assessment  therefor.  loe  Mass.  344.  §§52,122. 

1  Section  86.     A  mutual  marine  company  formed  under  the  second  companiS^""* 

2  clause  of  section  forty-seven  shall  have  an  agreement  under  the  seal  of  J;'5jjj''|.\^ 

3  each  subscriber  thereto,  substantially  as  follows:  its'' 137'  ^  '^' 

§§  h2. 

The  subscribers  severally  agree  to  pay  to  the  Insurance  Com-  iS54,  453,  §  25. 

pany  on  demand  the  whole  or  such  part  of  the  amounts  set  against  our  names  Q^g'  ||^'  ^  '*■ 
as  may  be  called  from  time  to  time  for  the  use  of  said  company  in  the  payment  §§  35, 40, 41. 
of  its  losses  and  expenses  not  otherwise  provided  for.  p^l^'ng^'  ^  ^' 

§§  I'lfi,  i'i7, 

4  Such  company  shall  not  issue  policies  until  the  amount  of  three  hun-  iss?,  2i'4,  §  52. 

5  dred  thousand  dollars,  which  shall  be  the  total  of  such  subscriptions,  shall  u^t.  iis,  |  si; 

6  have  been  so  subscribed,  and  a  certificate,  signed  by  the  president  and  ||°5''3,Y22. 

7  a  majority  of  the  directors,  certifying  that  the  subscribers  are  known  to 

8  them  and  that  they  believe  them  to  be  soh'ent  and  able  to  pay  their  sub- 

9  scriptions,  has  been  deposited  with  and  approved  by  the  commissioner. 

10  If  a  subscriber  dies  or  becomes  insolvent,  his  subscription  shall  be  can- 

11  celled;  and  if  the  amount  of  the  subscription  fund  is  thereby  or  other- 

12  wise  reduced,  the  deficiency  shall  be  made  good  by  new  subscriptions 

13  certified  in  the  same  manner  as  the  original.    Subscribers  shall  be  entitled 

14  to  annual  dividends  of  two  per  cent  upon  the  amount  of  their  subscrip- 

15  tions  from  the  profits  of  the  company,  and  shall  also  be  reimbursed  from 

16  future  profits  for  all  amounts  of  money  they  may  pay  the  company 

17  for  its  uses  under  their  agreement,  with  lawful  interest  thereon. 

18  The  net  profits  or  divisible  surplus  of  such  companies  shall  annually 

19  be  divided  among  the  insured  whose  policies  terminated  within  the  year, 

20  in  proportion  to  the  contribution  of  each  to  such  profits  or  surplus,  and 

21  such  dividends  shall  be  made  only  in  scrip  certificates  payable  only  out 

22  of  the  accumulation  of  net  profits  or  surplus,  which  accumulation  shall 

23  constitute  and  be  kept  and  invested  by  the  company  as  a  separate  fund 

24  in  trust  for  the  redemption  of  such  scrip  certificates  and  the  contingent 

25  payment  of  losses  and  expenses  as  herein  provided.    Such  certificates 

26  until  redeemed  shall  be  subject  to  future  losses  and  expenses  of  the  com- 

27  pany  and  to  be  reduced  if  the  redemption  fund  is  drawn  upon  for  the 

28  payment  of  such  losses  and  expenses.    But  no  part  of  the  redemption 

29  fund  shall  be  used  for  the  payment  of  losses  or  expenses  unless  the  cash 

30  assets  of  the  company  are  insufficient  therefor,  and  except  to  the  extent 

31  of  the  deficiency;  and  if  any  portion  thereof  shall  be  used  for  such  pay- 

32  ment,  the  outstanding  certificates  shall  be  reduced  in  proportion,  so  that 

33  the  redemption  fund  shall  at  all  times  equal  the  amount  of  the  unre- 

34  deemed  certificates.    The  net  income  of  the  redemption  fund  shall  be 

35  divided  annually  among  the  holders  of  its  certificates,  or  the  company 

36  may  make  such  certificates  with  a  specific  rate  of  interest  payable  from 


1986 


INSURANCE. 


[Ch.4P.    175. 


the  income  of  its  invested  funds.  As  such  profits  accumulate  and  are  37 
invested,  subscriptions  of  an  equal  amount  shall  be  cancelled.  The  38 
maximum  of  such  accumulation  of  profits  shall  be  three  hundred  thou-  39 
sand  dollars,  and  all  excess  of  profits  above  said  amount  shall  be  applied  40 
annually  to  the  pa\Tnent  of  the  certificates  in  the  order  of  their  issue.  41 
The  certificates  shall  forthwith  be  payable  when  the  company  shall  cease  42 
to  issue  policies  and  the  fund  is  no  longer  liable  to  be  drawn  upon  for  the  43 
payment  of  losses.  44 


com^aniS"sub^      SECTION  87.     A  uiutual  marine  and  a  mutual  fire  and  marine  com-  1 

iui'tutes'"''''''     P^ny  organized  prior  to  ^lay  twenty-first,  eighteen  hundred  and  eighty-  2 

1887,214.  §53.   scveu,  uiidcr  anv  law  of  the  commonwealth  shall  remain  subject  to  the  3 

1894.  522,  §  S3.                . '.                        i-"      ,  ,                          ,                      •         i     •                   •                           i            i        i             i  ^ 

R.  L.  118.  §  53.  provisions  applicable  to  each  contained  in  sections  one  hundred  and  4 

seventeen  to  one  hundred  and  thirty,  inclusive,  of  chapter  one  hundred  5 

and  nineteen  of  the  Public  Statutes,  notwithstanding  the  repeal  of  said  6 

chapter.    Any  such  company  may  redeem  its  certificates  of  dividends  7 

of  profits  when  its  permanent  fund  has  been  paid  in  cash  and  invested  8 

and  its  surplus  is  sufficient  therefor.    The  shareholders  of  the  permanent  9 

fund  of  any  such  company  shall  be  entitled  to  not  more  than  five  per  10 

cent  semi-annual  dividends  thereon.  11 


1907,  576, 
§§  54,  122. 
205  Mass.  303 


Mutual  marine 
companies 
subject  to 
certain  sec- 
tions. 
1851,281, 
§§  2-8. 
1854,  453. 
1856,  252, 


Section  88.     Sections  seventy-six,  seventy-seven   and    seventy-eight  1 

shall  apply  to  all  domestic  mutual   marine  companies,  and  each  sub-  2 

scriber  to  the  agreement  specified  in  section  eighty-six  shall  be  a  mem-  3 

„.  ber  of  the  company  during  the  term  of  his  subscription  and  entitled  to  4 

19.  one  vote.                         g.  s.  5s,  §  se.                         p.  s.  H9,  §.121.  5 

1887.  214,  §  54.  1894,  522,  §  54.  R.  L.  118,  §  54.  1907.  576,  55  55.  122. 


Liability  of 
subscriber 
and  officer. 
1851,281, 
§5  16,  19. 
1856,  252, 
55  20,  21. 
G.  S.  58, 
55  37.  38. 
P.  S.  119, 
§§  119,  123. 
1887,  214,  5  5.x 
1894,  522,  5  55. 
R.  L.  lis.  §  55. 


Section  89.     If  a  subscriber  to  the  agreement  specified  in  section  1 

eighty-six  fails  to  pay  his  subscription  or  any  assessment  thereon,  and  it  2 

is  pro\ed  that  the  president  or  a  director  certified  falsely  under  said  3 

section  in  regard  to  such  subscriber,  the  person  certif^'ing  shall  be  liable  4 

to  the  company  for  such  amount  as  the  subscriber  fails  to  pay.  5 

If  any  such  company  is  at  any  time  liable  for  losses  beyond  the  amount  6 

of  its  net  assets,  the  president  and  directors  shall  personally  be  liable  for  7 

all  losses  on  insurance  effected  while  the  company  was  in  such  condition.  8 

1907,  576,  55  56,  122.  10  Gray,  325.  12  Gray,  355. 


SSSani^"*'"'      Section  90.     Mutual  companies  transacting  the  business  specified 
subject  to  law    jjj  dauses  three,  five  or  sLx  of  section  fortv-seven  shall,  except  as  provided 

as  to  mutual         ,  ,  ,*  .  *■  .     ^  .    ,  „ 

fire  companies,    m  scctious  uinetv-two  and  ninet^-tliree,  be  subiect  to  the  provisions  or 

1911   251  .  *- .  •.  ^  ^  J  r 

H  2,'3.  ■         this  chapter  relating  to  mutual  fire  companies  so  far  as  applicable. 

1914,642.  1915,  17S,  55  1,  2;  181. 


Mutual 
automobile 
companies. 
Formation. 
1914,  642. 


Section  91.  A  mutual  company  formed  to  transact  business  under  1 
the  third  clause  of  section  forty-seven  shall  be  formed  in  the  same  2 
manner  as  a  mutual  fire  company.  3 


Mutual  boiler 
companies. 
Issue  of 
policies. 
1915,  178,  §  3. 


Section  92.  Xo  policy  shall  be  issued  by  a  mutual  company  formed 
to  transact  business  under  the  fifth  clause  of  section  forty-seven  until 
insurance  has  been  applied  for  to  the  amount  of  one  million  dollars  upon 
not  less  than  one  hundred  separate  risks,  nor  until  such  company  has 
made  arrangements  for  its  protection  from  e.xtraordinary  losses  caused 
by  any  one  disaster  by  reinsurance  as  provided  in  section  twenty. 


Chap.  175.]  inst.tiance.  1987 

1  Section  93.     No  policy  shall  be  issued  by  a  mutual  company  formed  y^^\^f 

2  to  transact  business  under  the  sixth  clause  of  section  forty-seven  until  companies. 

3  there  has  been  secured  by  it  —  policies. 

4  (1)  Applications  for  insurance  the  premiums  for  which  shall  be  not  less  i9is]  181.' 

5  than  fifty  thousand  dollars;  or 

6  (2)  Applications  by  not  less  than  one  hundred  employers  having  not 

7  less  than  ten  thousand  employees;  or 

8  (3)  Applications  by  not  less  than  fifty  employers  having  not  less  than 

9  five  thousand  employees,  each  of  such  employers  having  become  obli- 

10  gated  by  the  by-laws  of  the  company  for  an  amount  not  less  than  five 

11  times  his  cash  premium,  which  may  be  called  for  as  the  necessities  of  the 

12  company  to  pay  its  losses  and  expenses  may,  in  the  judgment  of  its 

13  directors,  require;  or 

14  (4)  Applications  by  not  less  than  fifty  employers  having  not  less  than 

15  five  thousand  employees,  accompanied  by  a  bond  for  one  hundred  thou- 

16  sand  dollars  running  to  the  commonwealth,  made  by  a  surety  company 

17  authorized  to  transact  business  therein  and  conditioned  to  assume  and 

18  discharge  all  the  obligations  of  the  statutes  applicable  thereto  upon  the 

19  failure  of  the  said  company  to  perform  and  discharge  the  same;  or 

20  (5)  Applications  by  not  less  than  fifty  employers  having  not  less  than 

21  five  thousand  employees,  accompanied  by  a  fund  of  fifty  thousand  dol- 

22  lars,  to  be  deposited  with  a  trustee  for  the  purpose  of  settling  due  and 

23  unpaid  obligations  of  the  company,  which  fund,  if  drawn  upon,  shall  be 

24  reimbursed  by  the  employers  in  proportion  to  their  several  premiums; 

25  nor,  whichever  of  the  five  options  herein  stated  has  been  selected,  until 

26  such  company  has  made  arrangements  for  its  protection  from  extraor- 

27  dinary  losses  caused  by  any  one  disaster  by  reinsurance  as  provided  in 

28  section  twenty. 

29  No  such  company  which  has  at  any  time  upon  Its  books  less  insurance 

30  than  the  minimum  amount  required  for  one  of  the  above  options  which 

31  it  has  selected  as  a  basis  for  beginning  business  shall  make  any  further 

32  insurance  until  it  has  secured  applications  for  policies  which  will  restore 

33  the  original  condition  in  respect  to  the  number  and  amount  of  applica- 

34  tions,  said  applications  to  be  subject  to  the  same  provisions  of  this  section 

35  as  apply  to  the  subscriptions  for  a  new  company;  nor  shall  it  make  any 

36  further  insurance  if  the  security  required  by  paragraphs  (4)  and  (5)  of  this 

37  section  becomes  impaired  until  such  impairment  is  made  good. 

38  The  liability  of  any  policy  holder  to  pay  his  proportional  part  of  any 

39  assessments  which  may  be  laid  by  the  company,  in  accordance  with  law 

40  and  his  contract,  on  account  of  losses  and  expenses  incurred  while  he  was 

41  a  member,  shall  continue  so  long  as  there  are  outstanding  any  obligations 

42  incurred  while  such  member. 

1  Section  94.     Except  as  provided  in  section  one  hundred  and  thirty-  Mutual  life 

2  seven,  every  person  insured  by  a  domestic  mutual  life  company  shall  Member^' 

3  be  a  member  entitled  to  one  vote,  and  one  vote  additional  for  each  five  Ka'Alsl's^ss. 

4  thousand  dollars  of  insurance  in  excess  of  the  first  five  thousand  dollars,  j|^J'  |' J'  |  ^*- 

5  and  shall  be  notified  of  its  annual  meetings  by  WTitten  notice  or  by  an  R;  l.  i is.  §  74. 

6  imprint  in  the  form  prescribed  in  section  seventy-six  upon  the  filing-  §§  82, 122. 

7  back,  or,  in  case  of  policies  on  which  the  premiums  are  payable  monthly  Penalty,  §  iss. 

8  or  oftener,  on  some  other  prominent  place  of  each  policy,  and  also  upon 

9  receipts  or  certificates  of  renewal. 

10  Members  may  vote  by  proxies  dated  and  executed  within  three  Proxies 

11  months  and  returned  and  recorded  on  the  books  of  the  company  seven  "" 


1988 


INSURANCE. 


[Chap.  175. 


Directors. 


Guaranty 
capital. 
Dividends. 
Redemption. 
1854,  453,  §  27. 
1856,  252,  §  40. 
G.  S.  58,  §  60. 
1870,  349,  §  B. 
P.  S.  119,  §  14.5. 
1887,  214,  §  72. 
1894,  522,  I  72. 


days  or  more  before  the  meeting  at  which  they  are  to  be  used;  but  12 
no  person  siiall,  as  attorney  or  otherwise,  cast  more  than  twenty  votes,  13 
and  no  officer  shall,  himself  or  by  another,  ask  for,  receive,  procure  to  14 
be  obtained  or  use  a  proxy  vote.  15 

Two  thirds  at  least  of  the  directors  shall  be  citizens  of  the  common-  16 
wealth,  and  after  the  first  election  members  only  shall  be  eligible;  and  17 
no  person  shall  be  qualified  to  serve  as  director  after  the  termination  18 
of  his  policy  in  the  company.  19 

The  stockholders  of  the  guaranty  capital  of  any  such  company  shall  20 
be  entitled  to  such  annual  dividends,  not  exceeding  eight  per  cent,  21 
payable  from  the  net  suiplus,  as  may  have  been  agreed  upon  in  the  22 
subscription  therefor.  Such  guaranty  capital  shall  be  redeemed,  by  23 
appropriation  of  net  surplus  for  that  purpose,  whenever  the  net  surplus  24 
is  twice  the  amount  of  said  guaranty  capital.  25 

R.  L.  118,  §75.  1907,  576,  §§82,  122. 


Over-insurance 
prohibited. 
Term  of  fire 
policy. 

1835,  147,  §  5. 
R.  S.  37,  §  28. 
1854,  453,  §  22. 
1856,  2.52,  §  31. 
G.  S.  58,  §  24. 
1875,  72,  §  1. 
1878,  132,  §  1. 


FIRE   INSURANCE. 

Section  95.    No  company,  and  no  officer  or  agent  thereof,  and  no  1 

insurance  broker  shall  knowingly  issue,  negotiate,  continue  or  renew  or  2 

cause  or  permit  to  be  issued,  negotiated,  continued  or  renewed  any  fire  3 

insurance  policy  upon  property  or  interests  within  the  commonwealth  4 

of  an  amount  which,  with  any  existing  insurance  thereon,  exceeds  the  fair  5 

value  of  the  property,  nor  for  a  longer  term  than  seven  years.  6 

p.  S.  119,  §§  136,  178.  1894,  522,  §  57.  1907,  576,  §§  57,  122. 

1887,  214,  §  57.  R.  L.  118,  §  67. 


Liability  for 
fire  loss 
limited. 
1898,  571. 
R.  L.  118,  §  5 
1907,  576, 
§§  67,  122. 
221  Mass.  518 


Section  96.  If  buildings  within  the  commonwealth  insured  against  1 
loss  by  fire  are  totally  destroyed  by  fire,  the  company  shall  not  be  2 
liable  beyond  the  actual  value  of  the  insured  property  at  the  time  of  3 
the  loss  or  damage;  and  if  it  shall  appear  that  the  insured  has  paid  4 
premiums  on  an  amount  in  excess  of  said  actual  value,  he  shall  be  re-  5 
imbursed  the  proportionate  excess  of  premiums  paid  on  the  difference  6 
between  the  amount  named  in  the  policy  and  said  actual  value,  with  7 
interest  at  six  per  cent  per  annum  from  the  date  of  issue;  and  said  excess  8 
of  premiums  and  interest  thereon  shall  be  allowed  the  insured  from  the  9 
time  any  companies  carr;^ang  said  insurance  at  the  time  of  the  loss  have  10 
continuously  carried  tlie  insurance  on  tiie  destroyed  buildings,  wliether  11 
under  policies  existing  at  the  time  of  tlie  loss  or  under  previous  policies  12 
in  the  same  companies.  13 


Section  97.     If,  by  an  agreement  vnth  the  insured  or  by  the  terms 


Payment  of 
mortgagees. 

p^^l'n'cf'Aiv  °^  ^  ^'"^  insurance  policy  taken  out  by  a  mortgagor,  the  wjiole  or  any 

lilt'  1^9  1 58  P^'^'  °^  ^^^  '°^^  thereon  is  payable  to  mortgagees  of  the  property  or  for 

R.  l'.  lis',  1 58!  their  benefit,  the  company  shall,  upon  satisfactory  proof  of  the  rights 

§§  58, 122.        and  title  of  the  parties,  in  accordance  with  such  terms  or  agreement, 

168  Mass.  147.    p^y  gjj  n^ortgagees  protected  by  such  policy  in  the  order  of  their  priority 

of  claim  as  their  claim  shall  appear,  not  beyond  the  amount  for  which 

the  company  is  liable,  and  such  payment  shall  be  to  the  extent  thereof 

pajTnent  and  satisfaction  of  the  liability  of  the  company  under  such 

policy. 


1 

2 

3 
4 
5 
6 

7 

8 

9 

10 


fpphcTit.oV"  Section  98.  In  all  insurance  against  loss  by  fire,  neither  the  ap-  1 
contracl'etc.  phcatioii  of  the  iusurcd  nor  the  by-laws  of  the  company  shall  be  con-  2 
1861, 152.         sidered  as  a  warranty  or  a  part  of  the  contract  except  so  far  as  they    3 


Chap.  175.]  insurance.  1989 

4  are  incorporated  in  full  in  the  policy  as  provided  in  the  ninth  clause  of  p^^of ■/fy®'.  jjg 

5  the  following  section. 

18S7,  214,  §  59.  1907.  576,  §5  59,  122.  112  Mass.  llfi.  131  Mass.  1, 

1894,622,5  59.  7  Allen.  42, 45,  118  Mass.  393.  145  Mass.  426. 

R.  h.  lis,  §  59.  98  Mass.  420.  120  Mass.  254.  172  Mass.  278. 

1  Section  99.     No  fire  company  shall  issue  fire  insurance  policies  on  standard  form 

2  property  or  interests  in  the  commonwealth,  other  than  those  of  the  israfssi,"^^' 

3  standard  form  herein  set  forth,  except  as  follows:  ilso,  m. 

4  First,  A  company  may  print  on  or  in  its  policies  its  name,  location  Jf^/'s®®' 

5  and  date  of  incorporation,  plan  of  operation,  whether  stock  or  mutual,  P-  S-'  lia.  §  i39. 

6  and,  if  the  former,  the  amount  of  its  paid-up  capital  stock,  the  names  is94;  522!  §  eo! 

7  of  its  officers  and  agents,  the  number  and  date  of  the  policy,  and,  if  it  §§  3,'4. ' 

8  is  issued  through  an  agent,  the  words  "This  policy  shall  not  be  valid  1904,' 240.' ^  ^°" 

9  until  countersigned  by  the  duly  authorized  agent  of  the  company  at  ffed.^i^ll 

10  ",  and,  if  a  mutual  company,  may  fix  the  contingent  }|}°'  ^|2, 1 2. 

11  mutual  liability  of  its  members  for  payment  of  losses  and  expenses  Jfl^-'*"' Ior 

12  not  provided  for  by  its  cash  funds.  los  Mass.'  4r,2' 

13  Second,  A  company  may  print  or  use  in  its  policies  printed  forms  215  Masl.' 425! 

14  of  description  and  specification  of  the  property  insured.  i^cdp^^a.^g.^sI' 

15  Third,  A  company  insuring  against  damage  by  lightning  may  print,  2°op.  a.  g. 
IG  in  the  clause  enumerating  the  perils  insured  against,  the  additional  q'^'a^g^^' 
17  words  "Also  any  damage  by  lightning,  whether  fire  ensues  or  not",  [}"'?  I?- 
IS  and,  in  the  clause  providing  for  an  apportionment  of  loss  in  case  of  (1920)  2S6. 

19  other  insurance,  the  words  "whether  by  fire,  lightning  or  both".  Penalty,  §  i90. 

20  Fourth,  A  domestic  company  may  print  in  its  policies  any  provi- 

21  sions  which  it  is  authorized  or  required  by  law  to  insert  therein;   and 

22  any  foreign  company  may,  with  the  appro\'al  of  the  commissioner, 

23  so  print  any  provision  required  by  its  charter  or  deed  of  settlement, 

24  or  by  the  laws  of  its  own  state  or  country  not  contrary  to  the  laws  of 

25  this  commonwealth;   but  the  commissioner  shall  require  any  provision 

26  which  in  his  opinion  modifies  the  contract  of  insurance  in  such  way 

27  as  to  affect  the  question  of  loss  to  be  appended  to  the  policy  by  a  slip 

28  or  rider  as  hereinafter  provided. 

29  Fifth,  The  blanks  in  said  standard  form  may  be  filled  in  print  or 

30  WTiting. 

31  Sixth,  A   company   may   print   upon   policies   issued   in   compliance 

32  with  this  section  the  words  "Massachusetts  Standard  Policy". 

33  Seventh,  There  shall  be  printed  or  stamped  on  the  filing-back  of 

34  every  policy,  in  clear  t}'j)e  not  smaller  than  long  primer,  the  words  "  In 

35  case  of  fire  notify  the  company  or  its  local  agent  at  once  in  writing". 

36  Eighth,  There  shall  be  printed  on  the  margin  of  the  policy  near  the 

37  part  thereof  that  relates  to  cancellation,  in  type  not  smaller  than  long 

38  primer,  or  attached  to  such  policy  by  rider  as  hereinafter  provided,  the 

39  following:  "  If  the  premium  on  this  policy  has  not  been  paid  to  the  com- 

40  pany  or  its  agent  or  to  the  duly  licensed  insurance  broker  through  whom 

41  the  contract  of  insurance  was  negotiated,  this  policy  may  be  cancelled 

42  by  the  company  in  the  manner  herein  provided  without  tendering  to  the 

43  assured  any  part  of  the  premium". 

44  Ninth,  A  company  may  ^\■rite  upon  the  margin  or  across  the  face  of  1^°  J{j;^^-  ^Jj^- 

45  a  policy,  or  write,  or  print  in  type  not  smaller  than  long  primer,  upon  j '^^,  Mu.w  soi. 

46  separate  slips  or  riders  ,to  be  attached  thereto,  provisions  adding  to  or  431,  S40.' 

47  modifying  those  contained  in  the  standard  form;   and  all  such  slips,  3  op.  a.  ci.  70." 

48  riders  and  provisions  shall  be  signed  by  the  officers  or  agents  of  the 

49  company  so  using  them. 


1990  iNSUK-usrcE.  [Chap.  175. 

Said  standard  form  of  policy  shall  be  plainly  printed,  and  no  portion  50 
thereof  shall  be  in  type  smaller  than  long  primer,  and  shall  be  as  follows:  51 

No.  $ 

(Corporate  name  of  the  company;  its  principal  place  or  places  of  business.) 
This  company  shall  not  be  liable  beyond  the  actual  value  of  the  insured  prop- 
erty at  the  time  any  loss  or  damage  happens. 

In  consideration  of  dollars  to  it  paid  by  the  insured,  hereinafter 

named,  the  receipt  whereof  is  hereby  acknowledged,  does  insure 
and  legal  representatives  against  loss  or  damage  by  fhe,  to  the 

amount  of  dollars. 

(Description  of  property  insured.) 

Bills  of  exchange,  notes,  accounts,  evidences  and  securities  of  property  of 
every  kind,  books,  wearing  apparel,  plate,  money,  jewels,  medals,  patterns, 
models,  scientific  cabinets  and  collections,  paintings,  sculpture  and  curiosities 
are  not  included  in  said  insured  property,  unless  specially  mentioned. 
234  Ma3s.  301.        Said  property  is  insured  for  the  term  of  beginning  on  the 

day  of  ,  in  the  year  nineteen  hundred  and  ,  at  noon, 

and  continuing  until  the  day  of  ,  in  the  year  nineteen 

hundred  and  ,  at  noon,  against  all  loss  or  damage  by  Fibe  originat- 

ing from  any  cause  except  invasion,  foreign  enemies,  civil  commotions,  riots  or 
any  military  or  usurped  power  whatever;  the  amount  of  said  loss  or  damage  to 
be  estimated  according  to  the  actual  value  of  the- insured  property  at  the  time 
when  such  loss  or  damage  happens,  but  not  to  include  loss  or  damage  caused 
by  explosions  of  any  kind  unless  fire  ensues,  and  then  to  include  that  caused  by 
fire  only. 
140  Mass.  38.  This  policy  shall  be  Void  if  any  material  fact  or  circumstance  stated  in  -wTiting 

145 M^; 265,  has  not  been  fairly  represented  by  the  insured;  or  if  the  insured  now  has  or 
3S9,  426.'  '  shaU  hereafter  make  any  other  insurance  on  the  said  property  without  the  assent 
150  Mms!  STi'.  in  -m-iting  or  in  print  of  the  company;  or  if,  without  such  assent,  the  said  prop- 
153  Mass!  335!  erty  shall  be  removed,  except  that,  if  such  removal  shall  be  necessary  for  the 
158  MaS:  475:  preservation  of  the  property  from  fire,  this  policy  shall  be  valid  without  such 
162  Mass!  479!    assent  for  five  days  thereafter;  or  if,  without  such  assent,  the  situation  or  cir- 

178  M^:  535;    cumstances  affecting  the  risk  shall,  by  or  with  the  knowledge,  advice,  agency  or 

179  Mass!  434;  consent  of  the  insured,  be  so  altered  as  to  cause  an  increase  of  such  risks,  or  if, 
205MaS.'ss°'  without  such  assent,  the  said  property  shall  be  sold,  or  this  policy  assigned,  or  if 
207  Mass!  337.  the  premises  hereby  insured  shall  become  vacant  by  the  removal  of  the  owner  or 
234  Mass.  23.      oggypant,  and  so  remain  vacant  for  more  than  thirty  days  without  such  assent, 

or  if  it  be  a  manufacturing  establishment,  running,  in  whole  or  in  part,  extra  time, 
except  that  such  estabhshments  may  run,  in  whole  or  in  part,  extra  hours  not 
later  than  nine  o'clock  p.m.,  or  if  such  estabhshments  shall  cease  operation  for 
more  than  tliirty  days  without  permission  in  wi-iting  endorsed  hereon,  or  if  the 
insured  shaU  make  any  attempt  to  defraud  the  company  either  before  or  after 
the  loss;  or  if  gunpowder  or  other  articles  subject  to  legal  restriction  shall  be 
kept  in  quantities  or  manner  different  from  those  allowed  or  prescribed  by  law; 
or  if  camphene,  benzine,  naphtha,  or  other  chemical  oils  or  burning  fluids  shall 
be  kept  or  used  by  the  insured  on  the  premises  insured,  except  that  what  is  kno^vn 
as  refined  petroleum,  kerosene  or  coal  oU  may  be  used  for  hghting,  and  in  dwell- 
ing houses  kerosene  oil  stoves  may  be  used  for  domestic  purposes,  to  be  filled 
when  cold,  by  daylight,  and  vAth  oil  of  lawful  fire  test  only. 

If  the  insured  property  shall  be  exposed  to  loss  or  damage  by  fire,  the  insured 
shall  make  all  reasonable  exertions  to  save  and  protect  the  same. 
140  Mass.  38.  In  case  of  any  loss  or  damage  under  this  policy,  a  St.\tement  in  -nTiting,  signed 

145  mSs!  582!  and  sworn  to  by  the  insured,  shall  be  forthwith  rendered  to  the  company,  setting 
160  Mass.  100.  forth  the  value  of  the  property  insured,  the  interest  of  the  insured  therein,  all 
164  Mass!  382!  Other  insurance  thereon  in  detail,  the  purposes  for  which  and  the  persons  by 
166  Mass.  210.  whoui  the  building  insured,  or  containing  the  property  insured,  was  used,  and  the 
196  MaS!  23o!  time  at  which  and  manner  in  which  the  fire  originated,  so  far  as  known  to  the 
200  Mass.  60.  insured.  The  company  may  also  examine  the  books  of  account  and  vouchers  of 
206  Mass!  247,'    the  insured,  and  make  extracts  from  the  same. 

691.  208  Mass.  378.  212  Mass.  318.  227  Mass.  132. 

226  Mass'  236         ^^  *^^^^  °^  ^^^  ^°^^  °'"  damage,  the  company,  within  sixty  days  after  the  in- 

"^'      '    sured  shall  have  submitted  a  statement,  as  provided  in  the  preceding  clause, 

shall  either  pay  the  amount  for  which  it  shall  be  liable,  which  amount,  if  not 

agreed  upon,  shall  be  ascertained  by  award,  of  referees  as  hereinafter  provided, 


Chap.  175.]  insurance.  1991 

or  replace  the  property  with  other  of  the  same  kind  and  goodnes.^;  or  it  may, 
within  fifteen  days  after  such  statement  is  submitted,  notify  the  insured  of  its 
intention  to  rebuild  or  repair  the  premises,  or  any  portion  thereof  separately 
insured  by  this  policy,  and  shall  thereupon  enter  upon  said  premises  and  proceed 
to  rebuild  or  repair  the  same  with  reasonable  expedition.  It  is  moreover  under- 
stood that  there  can  be  no  abandonment  of  the  property  insured  to  the  company, 
and  that  the  company  shall  not  in  any  case  be  liable  for  more  than  the  sum 
insured,  with  interest  thereon  from  the  time  when  the  loss  shall  become  payable, 
as  above  provided. 

If  there  shall  be  any  Other  Insurance  on  the  property  insured,  whether 
prior  or  subsequent,  the  insured  shall  recover  on  this  policy  no  greater  propor- 
tion of  the  loss  sustained  than  the  sum  hereby  insured  bears  to  the  whole  amount 
insured  thereon.  And  whenever  the  comjiany  shall  pay  any  loss,  the  insured  shall 
assign  to  it,  to  the  extent  of  the  amount  so  paid,  all  rights  to  recover  satisfaction 
for  the  loss  or  damage  from  any  person,  town  or  other  corporation,  excepting 
other  insurers;  or  the  insured,  if  requested,  shall  prosecute  therefor  at  the  charge 
and  for  the  account  of  the  company. 

If  this  policy  shall  be  made  payable  to  a  mortgagee  of  the  insured  real  estate,  ir6  Mass.  is9. 
no  act  or  default  of  any  person  other  than  such  mortgagee  or  his  agents,  or  those  }^^|  Ma^|?|' 
claiming  under  him,  shall  affect  such  mortgagee's  right  to  recover  in  case  of  loss  vm  Mass!  230! 
on  such  real  estate :  provided,  that  the  mortgagee  shall  on  demand  pay  according  |J8  Mass.  378. 
to  the  established  scale  of  rates  for  any  increase  of  risks  not  paid  for  by  the  in-  2  Op.  a.  g.  582. 
sured;  and  whenever  this  comjjany  shall  be  liable  to  a  mortgagee  for  any  sum  for 
loss  under  this  policy,  for  which  no  liability  exists  as  to  the  mortgagor,  or  owner, 
and  this  company  shall  elect  by  itself,  or  with  others,  to  pay  the  mortgagee  the 
full  amount  secured  by  such  mortgage,  then  the  mortgagee  shall  assign  and  trans- 
fer to  the  companies  interested,  upon  such  payment,  the  said  mortgage,  together 
with  the  note  and  debt  thereby  secured. 

This  policy  may  be  Cancelled  at  any  time  at  the  request  of  the  insured,  who  197  Mass.  19. 
shall  thereupon  be  entitled  to  a  return  of  the  portion  of  the  above  premium  remain- 
ing, after  deducting  the  customary  monthly  short  rates  for  the  tmie  this  pohcy 
shall  have  been  in  force.  The  company  also  reserves  the  right,  after  gi^ng  WTitten 
notice  to  the  insured  and  to  any  mortgagee  to  whom  this  policy  is  made  payable, 
and  tendering  to  the  insured  a  ratable  proportion  of  the  premium,  to  cancel  this 
policy  as  to  all  risks  subsequent  to  the  expiration  of  ten  days  from  such  notice, 
and  no  mortgagee  shall  then  have  the  right  to  recover  as  to  such  risks. 

In  case  of  loss  under  this  policy  and  a  failure  of  the  parties  to  agree  as  to  the  iss  Mass.  572. 
amount  of  loss,  it  is  mutually  agreed  that  the  amount  of  such  loss  shall  be  referred  JI3  Jj^|^-  gH" 
to  three  disinterested  men,  the  company  and  the  insured  each  choosing  one  out  1.54  Mkss!  77. ' 
of  three  persons  to  be  named  by  the  other,  and  the  third  being  selected  by  the  two  }5^  JjjJ^;  Hf 
so  chosen;  the  award  in  writing  by  a  majority  of  the  referees  shall  be  conclusive  i7i  Mkss!  433! 
and  final  upon  the  parties  as  to  the  amount  of  loss  or  damage,  and  such  refer-  igg  J}^^;  fif 
ence,  unless  waived  by  the  parties,  shall  be  a  condition  precedent  to  any  right  of  action  213  Mass',  sis! 
in  law  or  equity  to  recover  for  such  loss:  but  no  person  shall  be  chosen  or  act  as  a  |jg  ^jlJJ-  j||- 
referee,  against  the  objection  of  either  party,  who  has  acted  in  a  like  capacity  2i'i  Mkss!  sis! 
within  four  months.       _  _  ,  ,.     ,        .         i6M:S!i36; 

No  suit  or  action  agamst  this  company  for  the  recovery  of  any  claim  by  virtue  2  Op.  a.  g. 
of  this  policy  shall  be  sustained  in  any  court  of  law  or  equity  in  this  common-  **^- 
wealth  unless  commenced  within  two  years  from  the  time  the  loss  occurred:  pro- 
vided, however,  that  if,  within  said  two  years,  in  accordance  with  the  provisions  of 
the  preceding  paragraph,  the  amount  of  the  loss  shall  have  been  referred  to  arbi- 
tration after  failure  of  the  parties  to  agree  thereon,  the  limitation  of  time  for 
bringing  such  suit  or  action  shall  in  no  event  be  less  than  ninety  days  after  a 
valid  award  has  been  made  upon  such  reference  or  after  such  reference  or  award 
has  been  expressly  waived  by  the  parties.  If  suit  or  action  upon  this  policy  is 
enjoined  or  abated,  suit  or  action  may  be  commenced  at  any  time  within  one  year 
after  the  dissolution  of  such  injunction,  or  the  abatement  of  such  suit  or  action, 
to  the  same  extent  as  would  be  possible  if  there  was  no  limitation  of  time  provided 
herein  for  the  bringing  of  such  suit  or  action. 

In  witness  whereof  the  said  company  has  caused  this  policy  to 

be  signed  by  its  president  and  attested  by  its  secretary  (or  by  such  proper  officers 
as  may  be  designated),  at  their  ofl&ce  in  (date). 

52  The  word  "noon",  occurring  in  the  standard  form  above  set  forth, 

53  shall  be  construed  to  be  the  noon  of  standard  time  of  the  place  where  the 

54  property  covered  by  the  policy  is  situated. 


1992 


INSURANCE. 


[Chap.  175. 


Appointment 
of  referees. 
1S88,  151. 
1891,291. 
1894.  622,  §  60. 

1896,  137. 

1897,  357. 

R.  L.  118,  §  60. 
1907.  576, 
§§  60,  122. 
1911,406. 
1919,31. 
204  Mass.  90. 
224  Mass.  310. 


Referees  to 
determine 
sound  value, 
when. 


Section  100.  In  case  of  loss  under  any  fire  policy  issued  on  prop-  1 
erty  in  the  commonwealth  in  the  standard  form  set  forth  in  the  preceding  2 
section,  and  the  failure  of  the  parties  to  agree  as  to  the  amount  of  loss,  3 
the  company  shall,  within  ten  days  after  a  written  request  to  appoint  4 
referees  under  the  provision  for  arbitration  in  such  policy,  name  three  5 
men  no  one  of  whom  shall,  without  the  written  consent  of  the  insured,  6 
be  a  person  who  has  served  in  that  capacity  for  said  company  within  7 
four  months,  each  of  whom  shall  be  a  resident  of  the  commonwealth  8 
and  willing  to  act  as  one  of  such  referees,  of  whom  the  insured  shall,  9 
within  ten  days  after  receiving  said  names,  make  known  to  the  com-  10 
pany  his  choice  of  one  to  act  as  one  of  such  referees;  and  such  company  11 
sliall,  ■within  ten  days  after  receiAing  the  names  of  three  men  named  by  12 
the  insured,  make  known  to  the  insured  its  choice  of  one  of  them  to  act  13 
as  one  of  such  referees.  And  in  case  of  the  failure  of  two  referees  chosen,  14 
respectively,  by  the  company  and  the  insured  to  agree  upon  and  select,  15 
within  ten  days  from  their  appointment,  a  third  referee  willing  to  act  in  16 
said  capacity,  either  of  said  referees  or  parties  may  make  written  appli-  17 
cation,  setting  forth  the  facts,  to  the  commissioner  to  appoint  such  third  1<8 
referee;  and  said  commissioner  shall  thereupon  make  such  appointment,  19 
and  shall  send  written  notification  thereof  to  the  parties.  In  every  case  20 
of  the  appointment  by  the  commissioner  of  said  third  referee,  the  insuring  21 
companies  shall  withhold  from  the  amount  of  the  award  rendered  one  22 
half  of  the  compensation  and  expenses  of  said  referee,  and  said  companies  23 
shall  thereupon  pay  to  said  referee  the  full  amount  of  his  compensation  24 
and  expenses.  25 

If  a  policy  of  fire  insurance  contains  a  reduced  rate  or  co-insurance  26 
clause,  and  if,  in  case  of  loss,  the  parties  do  not  agree  as  to  the  sound  27 
value  of  the  property  affected,  such  value  shall  be  determined  by  the  28 
referees  chosen  to  determine  the  loss  or  damage.  If  the  parties  agree  29 
as  to  the  loss  or  damage,  but  do  not  agree  as  to  the  amount  of  the  sound  30 
value,  said  value  shall  be  determined  by  referees  appointed  as  provided  31 
in  and  subject  to  the  provisions  of  this  section  and  of  said  standard  32 
form.  An  award  in  writing  of  a  majority  of  the  referees  shall  be  final  33 
and  conclusive  on  the  parties  as  to  the  amount  of  the  sound  value.  34 


Meetings  of 
referees. 
1910,  489. 
221  Mass.  522. 
229  Mass.  10. 


Section  101.     Referees  selected  under  the  preceding  section  to  deter-  1 

mine  the  amount  of  loss  under  a  policy  of  fire  insurance  as  set  forth  2 

in   the   standard    form   of   policy    prescribed    by   section    ninety-nine  3 

shall,  within  ten  days  after  the  appointment  of  the  third  referee,  meet  4 

to  hear  the  evidence  in  the  case;  and  if  the  case  is  not  completed  at  the  5 

first  hearing,  adjourned  hearings  may  be  held  from  time  to  time,  but  not  6 

more  than  one  week  shall  elapse  between  hearings  except  by  unanimous  7 

agreement  of  said  referees.  8 


Lack  of  sworn 
statement  of 
loss  not  to  be 
taken  advan- 
tage of  by  the 
company,  etc. 
1910,652,  §  1. 
206  Mass.  249. 
221  Mass.  524. 
227  Mass.  134. 


Section  102.     In  case  of  loss  under  any  fire  insurance  policy  in  the  1 

standard  form  prescribed  by  section  ninety-nine,  tjie  company  siiall  not,  2 

in  defence  of  any  action,  avail  itself  of  the  omission  on  the  part  of  the  3 

insured  to  furnish  fortJiwith  to  the  company  the  sworn  written  statement  4 

required  by  said  standard  form,  pro\'ided  the  insured  has,  after  such  loss,  5 

forthwith  in  writing  notified  the  company,  at  its  home  office  or  at  the  6 

office  of  the  agency  issuing  the  policy,  of  the  fire,  and  the  location  thereof,  7 

and  pro\ided  further  that  the  insured,  if  the  company,  after  recei\-ing  8 

notice  in  writing  as  aforesaid,  requests  him  in  writing  so  to  do,  furnishes  9 


Chap.  175.]  insukance.  1993 

10  tJie  company  with  said  sworn  statement.     If,  after  recei%in<;  written 

11  notice  as  aforesaid  from  the  insured,  the  company  does  not  forthwith 

12  reciuest  of  the  insured  said  sworn  statement,  the  periods  of  time  within 

13  wiiicji  tlie  company  shall,  as  pro-vided  in  the  policy,  pay  the  amount  for 

14  which  it  is  liable,  or  replace  the  property,  or  notify  the  insured  of  its 

15  intention  to  rebuild  or  repair  the  premises,  shall  be  computed  from  the 

16  time  when  the  company  received  said  written  notice. 

1  Section  103.     A  company  issuing  fire  insurance  policies  on  property  Companies 

2  or  interests  in  the  commonwealth  in  the  standard  form  prescribed  by  "nafn  fire 

3  section  ninety-nine  may  cancel  any  such  policy  in  the  manner  pro^^ded  igis'^is,  §  i. 

4  therein  without  tendering  to  the  insured  a  ratable  proportion  of  the 

5  premium,  if  the  premium  has  not  been  paid  to  the  company  or  its  agent 

6  or  to  a  duly  licensed  insurance  broker  through  whom  the  contract  of 

7  insurance  was  negotiated. 

1  Section  104.     Any  person  aggrieved  by  any  rating  of  a  fire  company  Complaint 

2  or  board  making  premium  rates  for  fire  insurance  may  file  a  written  agg?revedby 

3  complaint  with  the  commissioner,  who  shall  notify  the  board  of  appeal  Jgn^^i,  §  2. 

4  on  fire  insurance  rates.    The  complaint  shall  state  in  detail  the  grounds 

5  upon  which  the  complainant  asks  relief.    The  said  board  shall  notify  in 

6  writing  all  parties  whom  it  deems  to  be  interested,  and  shall  fix  a  time, 

7  not  earlier  than  seven  days  after  the  date  of  the  notice,  and  a  place  for 

8  hearing  the  complaint.    After  due  hearing  the  board  shall  make  a  finding 

9  as  to  whether  the  established  rate  is  excessi\-e,  unfair  or  discriminatory, 

10  and  shall  make  such  recommendations  as  it  deems  advisable.    The  find- 

11  ing  and  recommendation  in  each  case  shall  be  made  a  matter  of  record 

12  and  shall  be  open  to  public  inspection. 

fidelity   insurance   and   corporate   StIRETY. 

1  Section  105.     A   company  organized    under   the   fourth    clause   of  gj^f"°^j 

2  section  forty-seven  or  corresponding  provisions  of  earlier  laws  may  make  corporate 

3  contracts  of  insurance  to  guarantee  the  fidelity  of  persons  holding  positions  companies. 

4  of  trust  in  pri\-ate  or  public  emplojinent  or  responsibility,  and  may,  if  §§"3,'4. 

5  accepted  and  approved  by  the  court,  magistrate,  obligee  or  person  compe-  \gs^]  214,  §  ei. 

6  tent  to  appro\e  such  bond,  act  as  joint  or  sole  surety  upon  the  official  §f®i%"'' 

7  bond  or  the  bond,  recognizance  or  other  undertaking  in  civil  and  criminal  }i^^;||,f:  |^^  • 

8  procedure  of  any  person  or  corporation  to  the  United  States,  to  the  com-  isss!  54/    ^ 

9  monwealth  or  to  any  county,  city,  town,  judge  of  probate  and  insolvency  r.  l!  iis', 

10  or  other  court,  sherilT,  magistrate  or  other  public  officer,  or  to  any  cor-  1907,576. 

11  poration  or  association  public  or  private;   and  also  may  act  as  joint  or  1009,256. 

12  sole  surety  upon  any  bond  or  undertaking  to  any  person  or  corporation  }^Ji;  l^- 

13  or  to  the  commonwealth  conditioned  upon  the  performance  of  any  duty  J^jg;!^;,^^  '■ 

14  or  trust,  or  for  the  doing  or  not  doing  of  anytliing  in  said  bond  specified,  §§  45, 46,' 52. 

15  and  upon  bonds  to  indemnify  against  lo.ss  any  person  or  persons  who  are 
IG  responsible  as  surety  or  sureties  upon  a  written  instrument  or  otherwise 

17  for  the  performance  by  others  of  any  office,  emploj-nient,  contract  or 

18  trust.    If  by  law  two  or  more  sureties  are  required  upon  any  obligation 

19  upon  which  such  company  is  autliorized  to  act  as  surety,  it  may  act  as 

20  joint  or  sole  surety  thereon,  and  may  be  accepted  as  such  by  the  court, 

21  justice,  magistrate  or  other  officer  or  person  authorized  to  approve  the 

22  sufficiency  of  such  bond  or  undertaking;  and  so  much  of  section  nine  of 


1994  ixscR.^-CE.  [Chap.  175. 

chapter  two  hundred  and  fi\"e  as  requires  that  sureties  on  bontls  to  a  23 
judge  of  probate  shall  be  residents  of  the  commonwealth  shall  not  forbid  24 
the  acceptance  of  a  qualified  foreign  company  as  joint  or  sole  surety  on  25 
any  such  bond.  A  bond  given  by  it  under  section  twenty  of  chapter  one  26 
hundred  and  fifty-eight,  section  twenty-foiu-  of  chapter  one  hundred  and  27 
sixty-eight  or  section  nine  of  chapter  one  hundred  and  seventy  shall  be  in  28 
a  form  approved  by  the  commissioner  of  corporations  and  taxation  or  29 
the  commissioner  of  banks,  respectively,  and  an  attested  copy  of  such  30 
bond,  'o'ith  a  certificate  of  the  custodian  that  the  original  is  in  his  posses-  31 
sion,  shall  be  filed  with  the  commissioner  concerned.  No  such  company  32 
shall  incur  in  behalf  or  on  account  of  any  one  person  a  Hability  for  an  33 
amount  larger  than  one  tenth  of  its  net  assets,  unless  it  shall  be  secured  34 
from  loss  thereon  beyond  that  amount  by  suitable  and  sufficient  collateral  35 
agreements  of  indemnity,  by  agreements  of  other  joint  surety  or  sureties  36 
relati^•e  to  the  amount  of  liability  assumed  by  it  or  them,  by  deposit  ^\ith  37 
it  in  pledge  or  conveyance  to  it  in  trust  for  its  protection  of  property  38 
equal  in  value  to  the  excess  of  its  liability  over  such  Hmit,  or,  if  such  39 
liability  is  incurred  in  behalf  or  on  account  of  a  fiduciary  holding  property  40 
in  a  trust  capacity,  by  such  deposit  or  other  disposition  of  a  suitable  and  41 
sufficient  portion  of  the  estate  so  held  that  no  further  sale,  mortgage,  42 
pledge  or  other  disposition  can  be  made  thereof  ■without  such  company's  43 
approval,  except  by  the  decree  of  a  court  ha^^ng  proper  jurisdiction.  44 

In  cases  where  an  individual  surety  would  be  required  to  make  an  45 
oral  recognizance  in  open  court  or  before  a  justice  or  other  magistrate,  a  46 
company  authorized  by  this  section  to  act  on  such  recognizance  as  sole  47 
surety  shall,  instead  of  recognizing  orally  by  an  officer  or  agent,  enter  48 
into  a  bond  duly  executed  by  tlie  principal,  and  in  behalf  of  such  com-  49 
pany  acting  as  surety,  by  its  officer  or  agent  thereto  duly  authorized,  50 
and  sealed  with  its  corporate  seal,  and  neither  the  principal  nor  the  surety  51 
shall  recognize  orally.  The  condition  of  the  bond  shall  be  the  same  as  52 
that  of  an  oral  recognizance  taken  in  such  cases  from  an  individual  53 
surety,  and  the  bond  shall  be  subject  to  the  approval  of  the  court,  justice  54 
or  other  magistrate,  who  shall  endorse  his  approval  on  it.  Such  bond,  if  55 
approved  by  the  court,  justice  or  other  magistrate,  shall  not  be  defeated  56 
by  reason  of  the  failure  of  the  principal  to  execute  the  bond,  or  by  any  57 
failure  to  comply  with  the  provisions  of  this  section  that  would  not  de-  58 
feat  the  bond  at  common  law  as  against  the  company  acting  as  surety.       59 

Any  receiver,  assignee,  guardian,  conservator,  trustee,  executor,  ad-  60 
ministrator  or  other  fiduciary,  or  party  from  whom  a  bond  is  required,  61 
may  agree  and  arrange  with  his  sureties  for  the  deposit  for  safe  keeping  of  62 
any  or  all  moneys,  assets  and  other  property  for  which  he  is  or  may  be  re-  63 
sponsible  with  a  bank,  savings  bank,  safe  deposit  or  trust  company  au-  64 
thorized  by  law  to  do  business  as  such  in  the  commonwealth,  and  in  such  65 
manner  as  to  prevent  the  withdrawal  or  alienation  of  such  money,  assets  66 
or  otlier  property,  or  any  part  thereof,  w  ithout  the  WTitten  consent  of  such  67 
sureties,  or  an  order  of  the  court  in  which  such  bond  is  filed,  or  of  a  judge  68 
thereof,  made  on  such  notice  to  such  sureties  as  the  court  or  judge  may  69 
direct.  70 

The  commissioner  shall  transmit  forthwith  to  each  register  of  probate  71 
and  insolvency  the  names  of  all  corporate  surety  companies  as  they  be-  72 
come  or  cease  to  be  qualified  to  do  business  in  the  commonwealth.  73 

reqmr^  SECTION  106.     A  forcign  company  of  the  class  designated  in  the  pre-     1 

TOm^L^.         ceding  section  shall  not  be  admitted  and  authorized  to  transact  business    2 


Chap.  175.]  insurance.  1995 

3  in  tlie  commonwealth  until  besides  complj-ing  ^\^th  sections  one  hundred  J^°|'  |9*- 

4  and  fifty-one  and  one  hundred  and  fifty-five  it  has  satisfied  the  commis-  §§  ei,  122. 

5  sioner  that  it  has  made  a  deposit  wth  the  state  treasurer,  or  the  proper 

6  officer  or  board  of  some  other  state  of  the  United  States,  for  the  protec- 

7  tion  of  its  policy  holders  in  tlie  United  States  of  an  amount  not  less  than 

8  one  hundred  thousand  dollars,  wliich,  if  so  on  deposit  in  the  common- 

9  wealth,  shall  not  be  returned  to  the  company  while  it  has  any  liabilities 

10  outstanding  in  the  commonwealtli,  nor  until  the  commissioner  has  given 

11  his  written  consent  to  such  return. 

1  Section  107.     The  bonds  on  which  such  company  becomes  sTu-ety  status  of 

2  shall  not  be  deemed  insurance  contracts  as  defined  in  section  two,  but  i9i9%o.°"  '^' 

3  the  company  shall  otherwise  be  subject  to  this  chapter  so  far  as  appli- 

4  cable,  and  insurance  agents  and  brokers  shall  in  respect  to  such  bonds  be 

5  subject  to  all  the  provisions  of  this  chapter  applying  to  them  in  respect 

6  to  insurance  contracts. 

ACCIDENT,   HEALTH   AND   LIABILITY'   INSURANCE. 

1  Section  108.    No  policy  of  insurance  against  loss  or  damage  from  Accident  or 

2  disease  or  by  the  bodily  injury  or  death  by  accident  of  the  insured  tole  approv«i 

3  shall  be  issued  or  delivered  in  the  commonwealth :  (a)  until  a  copy  of  the  sioneT™'^" 

4  policy  and  the  table  of  rates  or  manual  of  risks  of  the  company  has  been  c?rtaiS™ro-'''° 

5  on  file  with  the  commissioner  for  at  least  thirty  days,  unless  before  the  ilfi'^lgj  .  ^ 

6  expiration  of  said  thirty  days  the  commissioner  shall  have  approved  the  jsi?'  iss- 

7  policy  in  writing;   nor  (6)  if  the  commissioner  notifies  the  company  in  19:9!  92',  §  1. 

8  MTiting  that  in  his  opinion  the  form  of  said  policy  does  not  comply  with  sosf"' 

9  the  laws  of  the  commonwealth,  specif jang  the  reasons  for  his  opinion,  a9i7)2.' 

10  provided  that  such  action  of  the  commissioner  shall  be  subject  to  re\'iew  Penalty,  §  190. 

11  by  the  supreme  judicial  court;  nor  (c)  unless  every  part  is  plainly  printed 

12  in  tj^pe  not  smaller  than  long  primer  or  ten  point  tj-pe;  nor  (d)  unless 

13  there  is  printed  on  the  first  page  thereof  and  on  its  filing-back,  in  tj-pe 

14  not  smaller  than  eighteen  point  or  great  primer,  a  brief  description  of 

15  the  poHcy;  nor  (e)  unless  the  exceptions  be  printed  with  the  same  prom- 

16  inence  as  the  benefits  to  which  such  exceptions  apply;  nor  (/)  unless  it 

17  contains  in  substance  the  following  provisions: 

18  1.  A  provision  that  such  policy  and  such  papers  as  may  be  attached 

19  to  or  endorsed  thereon  shall  constitute  the  whole  contract  of  insurance, 

20  except  as  the  same  may  be  affected  by  any  table  of  rates  or  classification 

21  of  risks  filed  by  the  company  with  the  commissioner. 

22  2.  A  pro\-ision  that  no  statement  made  by  the  applicant  which  is  not 

23  incorporated  in  or  endorsed  on  the  policy  issued  to  such  applicajit  shall 

24  avoicl  the  policy  or  be  used  in  evidence,  and  that  no  pro\'ision  of  the 

25  charter,  constitution  or  by-laws  shall  be  used  in  defence  of  any  claims 

26  arising  under  any  such  policy  unless  such  pro\'isions  are  incorporated  in 

27  full  in  the  policy;  but  this  requirement  shall  not  be  deemed  to  apply  to 

28  the  table  of  rates  or  manual  of  classification  of  risks  of  any  company  filed 

29  with  the  commissioner  prior  to  the  date  of  the  occurrence  of  the  injury 

30  or  commencement  of  the  sickness  for  which  indemnity  is  claimed. 

31  3.  A  provision  specifying  the  time  within  which  notice  of  accident  or 

32  disability  shall  be  given,  which  shall  not  be  less  than  twenty  days  from 

33  the  date  of  the  accident  nor  less  than  ten  days  from  the  date  of  the  be- 

34  ginning  of  the  disability  from  sickness  upon  which  the  claim  is  based; 

35  provided,  that  in  case  of  accidental  death  immediate  notice  thereof  may 


1996  "  rNsuK-wcE.  [Ch.\p.  175. 

be  required,  unless  the  notice  as  herein  specified  may  be  shown  not  to  36 
have  been  reasonably  possible.  37 

4.  A  provision  that  notice  of  a  claim  for  indemnity  shall  be  deemed  38 
sufficient  when  given  to  the  office  or  agent  of  the  company  specified  in  the  39 
policy.  40 

5.  A  provision  that  under  every"  such  policy,  if  a  past  due  premium  41 
shall  be  accepted  by  the  company  or  by  a  branch  office  or  by  a  duly  au-  42 
thorized  agent  of  the  company  in  the  town  or  county  where  the  insured  43 
shall  reside,  or  by  the  duly  authorized  agent  of  the  company  who  ac-  44 
cepted  the  last  premium  on  the  policy,  if  so  authorized  at  the  time  of  the  45 
acceptance  of ^  the  past  due  premium,  such  acceptance  shall  reinstate  46 
the  policy  in  full  as  to  disability  resulting  from  accidental  bodily  injuries  47 
thereafter  sustained,  but  shall  only  reinstate  the  policy  as  to  disability  48 
from  disease  beginning  more  than  ten  days  after  the  date  of  such  49 
acceptance.  50 

6.  A  provision  that  if  the  insured  is  injured  or  contracts  disease  after  51 
having  changed  his  occupation  to  one  classified  by  the  company  as  more  52 
hazardous  than  that  stated  in  the  policy,  or  while  he  is  doing  any  act  53 
or  thing  pertaining  to  any  occupation  so  classified,  except  ordinary  54 
duties  about  his  residence  or  while  engaged  in  recreation,  the  company  55 
will  pay  such  proportion  of  the  indemnities  provided  in  the  policy  as  the  56 
premium  paid  would  have  purchased  at  the  rate,  but  within  the  limits  57 
fixed  by  the  company,  for  such  more  hazardous  occupation  according  to  58 
the  company's  rates  and  classification  of  risks  filed  with  the  commis-  59 
sioner  prior  to  the  occiu-rence  of  the  injiuy  or  the  commencement  of  the  60 
disease  for  which  indemnity  is  claimed.  As  an  alternative  to  the  pro-  61 
visions  of  this  paragraph  the  policy  may  provide  that  no  reduction  shall  62 
be  made  in  any  indemnity  therein  provided  for  by  reason  of  any  change  63 
in  the  occupation  of  the  insured  or  by  reason  of  his  doing  any  act  or  thing  64 
pertaining  to  any  other  occupation.  65 

7.  A  provision  that  the  company  will  pay  the  benefit  promised  for  66 
specified  disabilities  or  accidental  death  within  sixty  days  of  the  receipt  67 
of  due  proofs  thereof;  or  in  lieu  thereof  a  provision,  at  the  option  of  the  68 
insured,  that  such  benefit  for  a  specified  amount  shall  be  payable  in  instal-  69 
ments,  the  provision  to  state  the  time  within  which  the  first  instalment  70 
shall  be  paid,  which  shall  not  exceed  sLxty  days  from  the  receipt  of  due  71 
proofs  by  the  company,  the  time  for  payment  of  subsequent  instalments  72 
and  the  number  thereof;  also  a  provision,  which  may  be  incorporated  73 
in  the  body  of  the  policy  or  made  a  part  of  the  contract  by  an  endorse-  74 
ment  or  rider,  that  the  company  will  pay  to  any  person  entitled  thereto,  75 
at  least  once  in  thirty  days,  the  amount  which  has  accrued  on  account  76 
of  sickness  or  accident,  upon  receipt  of  due  proof  thereof.  77 

?&i7)2'  ^-  ^  provision  that  cancellation  may  be  efl"ected  by  the  company  78 

only  by  written  notice  delivered  to  the  insured  or  mailed,  postpaid,  to  79 
liim  at  his  last  address,  as  shown  by  the  records  of  the  company,  and  the  80 
tender  of  cash  or  the  company's  cheek  for  the  unearned  portion  of  the  81 
premium,  but  such  cancellation  shall  be  without  prejudice  to  any  claim  82 
arising  on  account  of  disability  commencing  prior  to  the  date  on  which  83 
the  cancellation  takes  effect.  The  foregoing  provision  shall  be  used  only  84 
in  policies  pro\'iding  for  cancellation  by  the  company.  85 

9.  A  provision  specifying  the  time  within  which  proofs  of  claim  shall  86 
be  furnished  to  the  company,  which  shall  be  not  less  than  ninety  days  87 
from  the  date  of  death,  dismemberment  or  loss  of  sight  or  from  the  termi-  88 
nation  of  any  other  disability.  89 


Ch.\P.   175.]  INSUK.WJCE.  1997 

90  A  policy  shall  be  deemed  to  contain  any  such  provision  in  substance, 

91  when,  in  the  opinion  of  the  commissioner,  the  provision  is  stated  in  terms 

92  more  favorable  to  the  insured  or  his  beneficiary  than  are  herein  set  forth. 

1  Section  109.     No  policy  insuring  against  accidental  bodily  injuries  Certain 

2  or  disease  or  death  from  accident  shall  be  issued  or  delivered  in  the  com-  p?Shi'bitS. 

3  monwealth  if  it  contains  in  substance  any  of  the  following  provisions:        '®^°'  *^^'  ^  ^• 

4  1.  A  provision  that  shall  authorize  the  deduction  of  any  premium  or  Penalty,  §i90, 

5  assessment  from  any  indemnity  payable  under  the  terms  of  the  policy, 

6  except  such  premium  or  assessment  as  may  be  due  or  covered  by  written 

7  order  or  note  at  the  time  of  payment  of  the  indemnity. 

8  2.  A  provision  limiting  the  amount  of  indemnity  to  be  paid  to  a  sum 

9  less  than  the  indemnity  as  stated  in  the  policy  and  for  which  the  premium 

10  has  been  paid;  provided,  that  if  the  insured  shall  carry  other  insurance 

11  covering  the  hazard  without  giving  written  notice  to  the  companies 

12  issuing  the  policies,  then  and  in  that  case  each  company  may  stipulate 

13  that  it  will  be  liable  only  for  such  proportionate  amount  of  benefits  as 

14  the  indemnity  promised  bears  to  the  total  amount  of  indemnity  in  all 

15  the  policies  covering  such  hazard  and  for  the  return  of  such  part  of  the 

16  premium  paid  as  shall  exceed  the  pro  rata  of  the  premium  for  the  benefits 

17  paid. 

1  Section  110.     Nothing  in  the  two  preceding  sections  shall  apply  to  or  sections  los 

2  affect  any  general  or  blanket  policy  of  insurance  issued  to  any  employer,  applicable 

3  whether  an  individual,  corporation,  co-partnership,  or  association,  or  to  poHcL^'" 

4  any  municipal  corporation  or  department  thereof,  police  or  fire  depart-  l9}9,'92f'§^2^' 

5  ment,  underwriters'  corps,  salvage  bureau  or  like  organization,  where 

6  the  officers,  members  or  employees  or  classes  or  departments  thereof 

7  are  insured  against  specified  accidental  bodily  injuries  or  diseases  while 

8  exposed  to  the  hazards  of  the  occupation  or  otherwise,  for  a  premium 

9  intended  to  cover  the  risks  of  all  the  persons' insured  under  such  policy. 

1  Section  111.     The  beneficiary  under  a  policy  of  insurance  against  ^^^if"^^^, 

2  loss  or  damage  from  disease  or  by  the  bodily  injury  or  death  by  accident  dent,  etc., 

„     ,       .  ,  .  .  "^     .  ,         ■         .      ,  .  policies 

3  of  the  msured  may  mamtain  an  action  thereon  m  his  own  name.  may  sue. 

1918,  257,  §  371.  1919,  5.  1920,  2. 

1  Section  112.     In  respect  to  every  contract  of  insurance  made  be-  Payment  of 

2  tween  a  company  and  any  person,  by  which  such  person  is  insured  against  iSuty"  "^"^ 

3  loss  or  damage  on  account  of  the  bodily  injury  or  death  by  accident  of  re^uLTed. 

4  any  person,  for  which  loss  or  damage  such  person  is  responsible,  whenever  J?J^'']yi'*^33;  fg\- 

5  a  loss  occurs  on  account  of  a  casualty  covered  by  such  contract  of  insur-  ^^^Jj^jj^^g  35 ' 

6  ance,  the  liability  of  the  companj^  shall  become  absolute,  and  the  pajTiient 

7  of  said  loss  shall  not  depend  upon  the  satisfaction  by  the  insured  of  a  final 

8  judgment  against  him  for  loss  or  damage  or  death  occasioned  by  said 

9  casualty.    No  such  contract  of  insurance  shall  be  cancelled  or  annulled 

10  by  any  agreement  between  the  company  and  the  insured  after  the  said 

11  insured  has  become  responsible  for  such  loss  or  damage,  and  any  such 

12  cancellation  or  annulment  shall  be  void. 

1  Section  113.     Upon  the  recovery  of  a  final  judgment  against  any  Effect  of 

2  person  by  any  person,  including  administrators  or  executors,  for  loss  or  i"'i4!"i(i4,' §  2. 

3  damage  on  account  of  bodily  injury  or  death,  if  the  defendant  in  such  '^'^  ^^'^'''  '^" 


1998  msxiBANCE.  [Chap.  175. 

action  was  insured  against  said  loss  or  damage  at  the  time  when  the  4 

right  of  action  arose,  the  judgment  creditor  shall  be  entitled  to  have  the  5 

insurance  money,  provided  for  in  the  contract  of  insurance  between  the  6 

company  and  the  defendant,  applied  to  the  satisfaction  of  the  judgment.  7 


Title  instirance 
companies 


TITLE   INSURANCE. 

Section  114.     A  company  organized  under  the  eleventh  clause  of  1 

thfs"(Sapter°™   scctiou  forty-sevcu  or  under  earlier  laws  relating  to  such  companies  shall  2 

1887'  214'  ^  ^'    ^^°^  ^^  subject  to  tliis  chapter,  except  this  section  and  sections  twenty-  3 

i889^'378          ^^^'  forty-seven,  forty-eight,  one  hundred  and  fifteen,  and  one  hundred  4 

1894;  522;         and  sixteen.     Such  company  may  transact  all  the  kinds  of  business  sped-  5 

R.  L.'iis',         fied  in  said  eleventh  clause.  6 


I  62,  64. 


1907.  676,  §§  63,  65,  122.  1917,  146,  §  4.  1  Op.  A.  G.  41. 


Satingto  Section  115.     Any  such  company,  before  it  issues  any  policy  or  1 

^™.!f^lfJ'°''^    makes  any  contract  of  guaranty  or  insurance,  shall  file  with  the  com-  2 

i|s*'  ISO-         missioner  a  certified  copy  of  the  record  in  the  office  of  the  state  secre-  3 

1887,  214,  §  62.  tary  of  its  certificate  of  organization,  and  shall  obtain  from  the  com-  4 

1894    522    §62..  .  .  . 

R.  l!  lis!  I  62!  missioner  his  certificate  that  it  has  complied  with  the  laws  applicable  to    5 
§§  63, 122.        it  and  is  authorized  to  do  business.  6 

Every  such  company  shall  annually,  on  or  before  January  fifteenth,  7 
file  in  the  office  of  the  commissioner  such  statement  as  he  may  require  8 
of  its  condition  and  of  its  affairs  for  the  year  ending  on  the  preceding  9 
December  thirty-first,  signed  and  sworn  to  by  its  president  or  secretary  10 
or  treasurer  and  one  of  its  directors.  For  neglect  to  file  such  annual  11 
statement  or  for  making  a  wilfully  false  statement,  the  company  shall  12 
be  liable  to  the  penalties  prescribed  by  section  twenty-six  of  this  chapter  13 
and  section  forty-eight  of  chapter  one  hundred  and  fifty-five,  respec-  14 
tively.  The  commissioner  shall  haA-e  the  power  and  authority  to  \-isit  15 
and  examine  such  companies  conferred  by  section  four  in  respect  to  16 
other  domestic  insurance  companies,  and  the  duties  and  liabilities  of  17 
such  companies  and  their  officers  and  agents  relatiA'e  to  such  examina-  18 
tion  shall  be  the  same  as  those  of  other  domestic  insurance  companies.      19 

fu'Jfd.*"^  Section  116.     Every  such  company  shall  set  apart  an  amount  not     1 

1887',  214',  1 63.  Icss  thau  two  fifths  of  its  capital,  and  not  less  than  one  hundred  thou-  2 
R^t.  lis!  I  ei;  sand  dollars  in  any  case,  as  a  title  guaranty  fund,  and  shall  invest  it  sub-  3 
ITii^i^'i  J^^t  to  tlie  limitations  imposed  by  this  chapter  upon  the  inA"estment  of  4 
Io^'a'g^u  *^^^  capital  of  other  domestic  insurance  companies,  and  shall  issue  no  5 
title  policy  and  make  no  contract  of  title  guaranty  or  title  insurance  6 
imtil  such  amount  is  so  set  apart  and  invested. 

The  principal  of  such  title  guaranty  fund  shall  be  a  trust  for  the  pro-  8 
tection  of  title  policy  holders,  and  shall  be  applied  only  to  the  paATnent  9 
of  losses  and  expenses  incurred  by  reason  of  the  title  guaranty  or  title  10 
insurance  contracts  of  the  company.  Whenever  the  company  shall  in-  11 
crease  its  capital,  two  fifths  or  a  sufficient  part  of  the  increase  shall  be  12 
set  apart  and  duly  invested  and  added  to  the  title  guaranty  fund  so  that  13 
such  fund  shall  always  be  not  less  in  amount  than  two  fifths  of  the  entire  14 
capital.  15 

If  by  reason  of  losses  or  other  cause  the  title  guaranty  fund  is  less  16 
than  two  fifths  of  the  capital,  the  company  shall  make  no  further  con-  17 
tract  of  title  guaranty  or  title  insurance  until  the  fund  is  made  good.  18 


Chap.  175.]  insueance.  1999 


STEAM   BOILER   INSURANCE. 


1  Section  117.     No  company  shall  issue  a  policy  of  insurance  on  a  Term  of 

2  steam  boiler  for  a  longer  period  than  three  years.  poUdea. 

1907,  465,  §  18.  1908,  563,  §  2.  3  Op.  A.  G.  585. 


LIFE   insurance. 

1  Section  118.     All  companies  doing  business  in  the  commonwealth  Definition  of 

2  under  any  charter,  compact,  agreement  or  statute  of  this  or  any  other  i87o,°S49?T5. 

3  state,  involving  the  payment  of  money  or  other  thing  of  value  to  families  llll\  fof;  I  ]■ 

4  or  representatives  of  policy  and  certificate  holders  or  members,  condi-  H"'  ?°:S'  f  ?• 

r'l  1  .^*^  .  „,  ,.,  .,.  18S0,  19b,  §  4. 

5  tioned  upon  the  continuance  or  cessation  oi  human  lire,  or  involving  an  p.  s-ii9.  §154. 

6  insurance,  guaranty,  contract  or  pledge  for  the  paJ^nent  of  endowments  1894^  522!  §  es! 

7  or  annuities,  shall  be  deemed  to  be  life  companies,  and  shall  not  make  loorlsTe! 

8  any  such  insurance,  guaranty,  contract  or  pledge  in  the  commonwealth,  i9i7%\o"' 

9  or  to  or  with  any  resident  thereof,  which  does  not  distinctly  state  the  i26Masl'306. 

10  amount  of  benefits  pavable,  the  manner  of  pavment  and  the  consider-  ?rX  ^."^A^^i,. 

-.-.'■It*  1.  i,-^  ^P-  A.  0. 480. 

11  ation  thereior,  nor  any  such  insurance,  guaranty,  contract  or  pledge 

12  the  performance  of  which  is  contingent  upon  the  payment  of  assess-- 

13  ments  made  upon  survivors.     Nothing  herein  relating  to  the  consider- 

14  ation  for  the  policy  shall  apply  to  any  extra  compensation  which  may  be 

15  charged  by  a  company  to  the  insured  for  engaging  in  military  or  naval 

16  service  in  time  of  war. 

17  All  life  insurance  hereafter  transacted  by  the  corporations  which  for-  1899,229. 

18  merly  issued  policies  on  the  assessment  plan  under  chapter  four  hundred  f^  i,.^ii8,  §  es. 

19  and  twenty-one  of  the  acts  of  eighteen  hundred  and  ninety  and  acts  in  §|°J6,\"2^2. 

20  amendment  thereof  shall  be  carried  on  in  accordance  with  this  chapter; 

21  but  such  corporations  may  carry  out  in  good  faith  their  assessment 

22  contracts  made  with  their  members  prior  to  July  first,  eighteen  hundred 

23  and  ninety-nine. 

1  Section  119.     Domestic  life  companies  may  make  pure  endowment  Life  companies 

2  contracts,  and  grant,  purchase  and  dispose  of  annuities.  1917, 117.  rn''n^ufS°,'etc. 

1  Section  120.     No  life  company  and  no  officer  or  agent  thereof  shall  Discrimination 

2  make  or  permit  any  distinction  or  discrimination  in  favor  of  individuals  i8S7, 214,  §  es. 

3  between  insurants  of  the  same  class  and  equal  expectation  of  life  in  the  r.  l!  iis]  §  es! 

4  amount  or  payment  of  premiums  or  rates  charged  for  policies  of  life  or  §§'69,"22. 

5  endowment  insurance,  or  annuity  or  pure  endowment  contracts,  or  in  iSp.AG'iT^" 

6  the  dividends  or  other  benefits  payable  thereon,  or  in  any  other  of  the 

7  terms  and  conditions  of  the  contracts  it  makes. 

1  Section  121.     No  life  company  and  no  officer  or  agent  thereof  and  Certain 

2  no  insurance  broker  shall  make  any  contract  of  life  or  endowment  in-  proiuijitcti. 

3  surance  or  any  annuity  or  pure  endowment  contract  or  any  agreement  isSV,  522!  §  es! 

4  as  to  such  contract  other  than  as  plainly  expressed  in  the  policy  issued  Wiml  Mf,'.  ^  "^' 

5  thereon;  or  give,  sell  or  purchase,  or  offer  to  give,  sell  or  purchase,  as  in-  |,^p'^a'  \f' 

6  ducement  to  placing  or  negotiating  any  such  contract  or  the  continuance  ^'^'^'  '^^-  ^^• 

7  or  renewal  thereof  or  in  connection  therewith,  any  stocks,   bonds   or 

8  other  securities  of  any  company  or  other  corporation,  association  or 

9  partnership,  or  any  dividends  or  profits  accrued  thereon. 


2000 


INSTJR.\NCE. 


[ClLU>.   175. 


Discrimination 
on  account  of 
color  pro- 
hibited. 
1884,  235. 
1887.  214, 
§§  69,  109. 
1894.  S22, 
|§  69,  109. 
R.  L.  118, 
§§69,109. 
1907,  576, 
§§  70,  118, 
122. 


Section  122.  No  life  company  shall  make  any  distinction  or  dis-  1 
crimination  between  white  persons  and  colored  persons  wholly  or  partly  2 
of  African  descent  as  to  the  premiums  or  rates  charged  for  policies  upon  3 
the  lives  of  such  persons;  nor  shall  any  such  company  demand  or  require  4 
greater  premiums  from  such  colored  persons  than  are  at  that  time  re-  5 
quired  by  such  company  from  white  persons  of  the  same  age,  sex,  general  6 
condition  of  health  and  prospect  of  longevity;  nor  shall  any  such  com-  7 
pany  make  or  require  any  rebate,  diminution  or  discount  upon  the  8 
amount  to  be  paid  on  such  policy  in  case  of  the  death  of  such  colored  9 
person  insured,  nor  insert  in  the  policy  any  condition,  nor  make  any  10 
stipulation  whereby  such  person  insured  shall  bind  himself  or  his  heirs,  11 
executors,  administrators  and  assigns  to  accept  any  amount  less  than  12 
the  full  value  or  amount  of  such  policy  in  case  of  a  claim  accruing  thereon,  13 
by  reason  of  the  death  of  such  person  insured,  other  than  such  as  are  14 
imposed  upon  white  persons  in  similar  cases;  and  any  such  stipulation  15 
or  condition  so  made  or  inserted  shall  be  void.  16 

Any  such  company  which  shall  refuse  the  application  of  any  such  17 
colored  person  for  insurance  upon  such  person's  life  shall  furnish  such  18 
person,  on  his  request  therefor,  with  the  certificate  of  a  regular  exam-  19 
ining  physician  of  such  company  who  made  the  examination,  stating  20 
that  such  refusal  was  not  because  such  applicant  is  a  person  of  color,  21 
but  solely  upon  such  grounds  of  the  general  health  and  prospect  of  Ion-  22 
gevity  of  such  person  as  would  be  applicable  to  white  persons  of  the  23 
same  age  and  sex.  24 

A  company  or  an  officer  or  agent  thereof  who  violates  any  provision  25 
hereof  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars.  26 


Medical 
examination 
required, 
except,  etc. 
1895,  366. 
R.  L.  118.  § 
1907.  676, 
l§  71.  122. 
1916.  12. 
1918,  35. 


71. 


Section  123.  No  life  company  shall  enter  into  any  contract  of  in-  1 
surance  upon  lives  within  the  commonwealth  without  having  previously  2 
made  or  caused  to  be  made  a  prescribed  medical  examination  of  the  in-  3 
sured  by  a  registered  medical  practitioner;  except  that  an  inspection  4 
by  a  competent  person  of  a  group  of  employees  and  their  environment  5 
may  be  substituted  for  such  medical  examination  in  cases  where  the  in-  6 
surance  is  granted  under  a  single  policy  issued  to  a  person,  covering  7 
simultaneously  a  group  of  not  less  than  one  hundred  lives  all  in  the  8 
employ  of  such  person.  Nor  shall  medical  examination  be  required  for  9 
the  issuance  of  contracts  based  upon  the  continuance  of  life,  such  as  10 
annuity  or  pure  endowment  contracts,  whether  or  not  they  embody  an  11 
agreement  to  refund,  upon  the  death  of  the  holder,  to  his  estate  or  to  a  12 
specified  payee,  any  sum  not  exceeding  the  premiums  paid  thereon.  13 
Any  company  \iolating  this  section,  or  any  officer,  agent  or  other  person  14 
soliciting  or  efTecting,  or  attempting  to  efTect,  a  contract  of  insurance  15 
contrary  to  the  pro\'isions  hereof,  shall  be  punished  by  a  fine  of  not  16 
more  than  one  hundred  dollars.  17 


statements  as 
to  age.  health, 
etc..  binding 
if  policy 
issued  without 
medical  exam- 
ination, etc., 
except,  etc. 

1892.  372. 

1893.  434. 

1894.  622.  §  73. 
R.  L.  118,  §  73. 
1907.  576, 

5§  73,  122. 
160  Mass.  386. 
162  Mass.  236. 


Section  124.     In  any  claim  arising  under  a  policy  issued  in  the  com-  1 

monwealth  by  any  life  company,  without  previous  medical  examination,  2 

or  without  the  knowledge  and  consent  of  the  insured,  or,  if  said  insured  3 

is  a  minor,  without  the  consent  of  the  parent,  guardian  or  other  person  4 

having  legal  custody  of  said  minor,  the  statements  made  in  the  application  5 

as  to  the  age,  physical  condition  and  family  history  of  the  insured  shall  6 

be  held  to  be  valid  and  binding  on  tlie  company;  but  the  company  shall  7 

not  be  debarred  from  proving  as  a  defence  to  such  claim  that  said  state-  8 

ments  were  wilfully  false,  fraudulent  or  misleading.  9 


Chap.  175.]  insxjrance.  2001 

1  Section  125.     If  a  policy  of  insurance  is  effected  by  any  person  on  Rights  of 

2  his  own  life  or  on  another  life,  in  favor  of  a  person  other  than  himself  bem;fida?y^ 

3  having  an  insurable  interest  therein,  the  lawful  beneficiary  thereof,  other  §f*|;|^' 

4  than  himself  or  his  legal  representatives,  shall  be  entitled  to  its  proceeds  ]^-  2*|-    ^g 

5  against  the  creditors  and  representatives  of  the  person  effecting  the  isss,  252!  §  42. 

6  same;  and  the  person  to  whom  a  policy  of  life  or  endowment  insurance,  p.s.'ng.  §  i67. 

•  •  •  1 SS7    ''14    5  7*^ 

7  issued  subsequent  to  April  elcA^enth,  eighteen  hundred  and  ninety-four,  i8fl2i  372.' 

8  is  made  payable  may  maintain  an  action  thereon  in  his  own  name;  pro-  [Igl]  225'; 

9  vided,  that,  subject  to  the  statute  of  limitations,  the  amount  of  any  |"'l.^i'i^s,  5  73. 

10  premiums  for  said  insurance  paid  in  fraud  of  creditors,  with  interest  ls°73^[f2 

11  thereon,  shall  enure  to  their  benefit  from  the  proceeds  of  the  policy;  but  'i  Aiien,22j. 

.         .  .  .  ...  *  97  Mass  359 

12  the  company  issuing  the  policy  shall  be  discharged  of  all  liability  thereon  99  Mass!  154! 

13  by  pa\-ment  of  its  proceeds  in  accordance  with  its  terms,  unless  before  ns' Mass.  219. 

14  such  paj-ment  the  company  shall  have  ^\Titten  notice,  by  or  in  behalf  157  m^;  It*' 

15  of  a  creditor,  of  a  claim  to  recover  for  certain  premiums  paid  in  fraud  of  }^  Mas!;  302' 
Ifi  creditors,  with  specification  of  the  amount  claimed. 

172  Mass.  498.  202  Mass.  562.  2H  Mass.  512. 

185  Mass.  lO.-?,  318.  207  Mass.  159.  226  Mass.  306. 

186  Mass.  358.  210  Mass.  35.  228  Mass.  181. 

1  Section  126.     E^■e^y  policy  of  life  or  endo'mnent  insurance  made  Policies 

2  payable  to  or  for  the  benefit  of  a  married  woman,  or  after  its  issue  as-  SSried '° 

3  signed,  transferred  or  in  anyway  made  payable  to  a  married  woman,  or  J™™er'bei'iefit 

4  to  any  person  in  trust  for  her  or  for  her  benefit,  whether  procured  by  her-  lf^f-§^- 

5  self,  her  husband  or  bv  anv  other  person,  and  whether  the  assignment  or  1854. 453,  §  23. 

.  I  V  i^  ■■  o  1S56   252    §  42 

6  transfer  is  made  by  her  husband  or  by  any  other  person,  shall  enure  to  g.  s.'ss.  §  62.  ' 

7  her  separate  use  and  benefit,  and  to  that  of  her  children,  subject  to  the  p. s.'ii9,§i67. 

8  provisions  of  the  preceding  section  relative  to  premiums  paid  in  fraud  ally's '73.' 

9  of  creditors  and  to  sections  one  hundred  and  forty-four  to  one  hundred  {goy-  jif'  ^  ''^ 
10  and  forty-eight,  inclusive.  iiAUen,  224.  97  Mass.  359.  §'§73.122. 

99  Mass.  154,  157.  132  Mass.  408.  202  M.ass.  100,  549,  562. 

118  Mass.  219.  185  Mass.  318.  210  Mass.  35. 

131  Mass.  294.  186  Mass.  358.  217  Mass.  444. 

1  Section  127.     An   insurance   agent,    examining  physician   or   other  Penalties  for 

2  person  who  kno\%-ingh-  or  wilfully  makes  a  false  or  fraudulent  statement  mlfnts'etc! 

3  or  representation  in  or  relative  to  any  application  for  life  or  endowment  J|g|'  Hf 

4  insurance,  or  who  makes  any  such  statement  for  tlie  purpose  of  obtaining  i894, 522.  §  73. 

5  a  fee,  commission  or  money,  or  benefit  in  a  company  transacting  such  i907.'576.' 

6  business  under  this  chapter,  shall  be  punished  by  a  fine  of  not  less  than 

7  one  hundred  nor  more  than  five  hundred  dollars  or  by  imprisonment  for 

8  not  less  than  one  month  nor  more  than  one  year,  or  both;  and  a  person 

9  who  wilfully  makes  a  false  statement  of  any  material  fact  or  thing  in  a 

10  sworn  statement  as  to  the  death  or  disability  of  a  policy  holder  in  any 

1 1  such  company,  for  the  purpose  of  procuring  payment  of  a  benefit  named 

12  in  the  policy,  shall  be  guilty  of  perjury. 

1  Section  128.     No  party  to  any  contract  of  life  or  endowonent  in-  infant  cannot 

2  surance  made  after  RIarch  thirtieth,  nineteen  lumdred  and.  seA"enteen,  fOTinsurance'!' 

3  upon  the  life  of  such  party,  for  the  benefit  of  the  insured,  or  for  the  bene-  ^®^^'  ^''• 

4  fit  of  the  wife,  husband,  children,  father,  mother,  brother  or  sister  of  the 

5  insured,  shall,  because  of  infancy,  be  entitled  to  avoid  or  repudiate  the 
()  contract  or  to  avoid  or  repudiate  any  discharge  or  receipt  given  by  him 

7  for  any  benefit  accrued  or  accruing,  or  for  any  money  paid  or  payable 

8  under  the  contract;   provided,  that  such  party  had  attained  the  age  of 

9  fifteen  when  the  contract  was  effected. 


2002 


INSURANCE. 


[Chap.  175. 


Description 
of  life,  etc., 
policies. 
1894,  442, 
§  1;  522.  §73. 
R.  L.  118,  §  73. 
1907,  576, 
§§  74,  122. 
1909,  467. 


Section  129.     No  life  company  and  no  officer  or  agent  thereof  shall  1 

issue  a  policy  of  life  or  endowment  insurance  or  an  annuity  or  pure  en-  2 

dowment  policy  to  a  resident  of  the  commomvealth  not  bearing  in  bold  3 

letters  upon  its  face  a  plain  description  of  the  policy,  so  fully  defining  4 

its  character,  including  cli\idend  periods  and  other  peculiarities,  that  the  5 

holder  thereof  shall  not  be  likely  to  mistake  the  nature  or  scope  of  the  6 

contract.  7 


Dating  of 
life,  etc., 
policies. 
1912,  119. 


Application 
referred  to  in 
life  policy  must 
be  attached 
thereto. 

1893,  434. 

1894,  522.  §  73. 
R.  L.  118,  §  73. 
1907.  576, 

§§  73,  122. 
1909,  242. 
165  Mass.  462. 
172  Mass.  278. 


Section  130.     No  policy  of  life  or  endowment  insurance,  and  no  1 

annuity  or  pure  endowment  contract,  shall  be  issued  or  deliA'ered  in  the  2 

commonwealth  if  it  shall  purport  to  be  issued  or  to  take  effect  at  an  age  3 

lower  than  the  age  of  the  applicant  at  his  nearest  birthday  at  the  time  4 

of  the  original  \\Titten  application.  5 

Section  131.     Unless  a  correct  copy  of  the  application  is  endorsed  1 

upon  or  attached  to  a  policy  of  life  or  endowment  insurance,  when  issued,  2 

the  application  shall  not  be  considered  a  part  of  the  policy  or  received  3 

in  e^^dence  for  any  purpose.    E\ery  such  policy  which  contains  a  refer-  4 

ence  to  the  application,  either  as  a  part  of  the  policy  or  as  ha\ing  any  5 

bearing  thereon,  shall  have  endorsed  thereon  or  attached  thereto,  when  6 

issued,  a  correct  copy  of  the  application.  i8o.  Mass.  407.  7 


188  Mass.  212. 

191  Mass.  153. 

192  Mass.  468. 


193  Mass.  215. 

194  Mass.  66,  527. 
199  Mass.  190. 


200  Mass.  197. 
205  Mass.  290. 
208  Mass.  1. 


Life,  annuity, 
etc.,  policies 
to  be  ap- 
proved by 
commissioner. 
Life  policies 
to  contain 
certain  pro- 
visions. 

1907,  576.  §  75. 
1916,  47. 
1918,  60; 
112,  §  8. 
199  Mass.  181, 
190. 

208  Mass.  386. 
220  Mass.  52. 

Penalty,  §  190. 


Section  132.  No  policy  of  life  or  endowment  insurance  and  no  1 
annuity  or  pure  endowment  policy  shall  be  issued  or  delivered  in  the  2 
commonwealth  until  a  copy  of  the  form  thereof  has  been  on  file  for  3 
thirty  days  with  the  commissioner,  unless  before  the  expiration  of  said  4 
thirty  days  he  shall  ha^•e  approved  the  form  of  the  policy  in  writing;  5 
nor  if  the  commissioner  notifies  the  company  in  ■UTiting,  \\'ithin  said  6 
thirty  days,  that  in  his  opinion  the  form  of  the  policy  does  not  comply  7 
with  the  laws  of  the  commonwealth,  specif\-ing  his  reasons  therefor,  pro-  8 
\'ided  that  such  action  of  the  commissioner  shall  be  subject  to  re\-iew  9 
by  the  supreme  judicial  court;  nor  shall  such  policy,  except  policies  of  10 
industrial  insurance,  on  which  the  premiums  are  payable  monthly  or  11 
oftener,  and  except  annuity  or  pure  endo^wment  policies,  whether  or  not  12 
they  embody  an  agreement  to  refund  to  the  estate  of  the  holder  upon  13 
his  death  or  to  a  specified  payee  any  sum  not  exceeding  the  premiums  14 
jjaid  thereon,  be  so  issued  or  delivered  unless  it  contains  in  substance  the  15 
following:  16 

1.  A  provision  that  the  insured  is  entitled  to  thirty  days  of  grace  17 
within  which  the  payment  of  any  premium  after  the  first  year  may  be  18 
made,  subject  at  the  option  of  the  company  to  an  interest  charge  not  in  19 
excess  of  six  per  cent  per  annum  for  the  number  of  days  of  grace  elapsing  20 
before  the  payment  of  the  premium,  during  w-hich  period  of  grace  the  21 
policy  shall  continue  in  full  force;  but  if  the  policy  becomes  a  claim  dur-  22 
ing  the  said  period  of  grace  before  the  overdue  premium  or  the  deferred  23 
premiums  of  the  current  policy  year,  if  any,  are  paid,  the  amount  of  24 
such  premiums,  w  ith  interest  on  any  overdue  premium,  may  be  taken  25 
from  the  face  of  the  policy  in  settlement.  26 

2.  A  pro\  ision  that  the  policy  shall  be  incontestable  after  two  years  27 
from  its  date  of  issue  except  for  non-payment  of  premiums  or  violation  28 
of  the  conditions  of  the  policy  relating  to  military  or  naval  service  in  29 
time  of  war.  30 


ClIAP.    175.]  INSURANCE.  2003 

31  3.  A  provision  that  the  policy  and  the  application  therefor  shall  con- 

32  stitute  the  entire  contract  between  the  parties,  and  that  no  statement 

33  made  by  the  insured  or  on  iiis  behalf  shall  be  used  in  defence  to  a  claim 

34  under  the  policy  unless  it  is  contained  in  a  written  application,  and  a  copy 

35  of  such  application  is  endorsed  upon  or  attached  to  the  policy  when 

36  issued. 

37  4.  A  provision  that  if  the  age  of  the  insured  has  been  misstated  the 

38  amount  payable  under  the  policy  shall  be  such  as  the  premium  would 

39  have  purchased  at  the  correct  age. 

40  5.  A  provision  that  the  policy  shall  participate  in  the  surplus  of  the 

41  company  annually,  beginning  not  later  than  the  end  of  the  third  policy 

42  year. 

43  6.  A  provision  specifying  the  options  to  which  the  policy  holder  is 

44  entitled  in  the  event  of  default  in  a  premium  payment  after  three  full 

45  annual  premiums  shall  have  been  paid. 

46  7.  A  provision  that  not  later  than  the  third  anniversary  of  the  policy 

47  the  holder  of  the  policy  shall,  upon  a  proper  assignment  thereof  to  the 

48  company,  be  entitled  to  borrow  of  the  company,  on  the  sole  security  of 

49  the  policy,  a  sum  not  more  than  ninety-five  per  cent  of  the  cash  sur- 

50  render  value  thereof,  less  any  indebtedness  to  the  company,  at  a  rate  of 

51  interest  not  exceeding  six  per  cent.     Said  provision  shall  include  such 

52  other  conditions  as,  in  conformity  to  the  laws  of  the  commonwealth,  the 

53  company  will  impose  when  the  application  for  the  loan  is  made. 

54  8.  A  table  showing  in  figures  the  loan  values,  if  any,  and  the  options 

55  available  under  the  policy  each  year  upon  default  in  premium  payments, 

56  during  at  least  twenty  years  of  the  policy,  beginning  with  the  year  in 

57  which  such  values  and  options  first  become  available. 

58  9.  A  provision  that  the  company  may  at  its  option  defer  the  granting 

59  of  any  loan  other  than  to  pay  premiums  on  the  policies  in  the  company, 

60  and  may  at  its  option  defer  the  granting  of  any  cash  surrender  value  for 
Gl  a  period  not  exceeding  ninety  days  from  tlie  date  of  the  application  for 

62  such  loan  or  surrender  value. 

63  10.  In  case  the  proceeds  of  a  policy  are  payable  in  instalments  or  as  an 

64  annuity,  a  table  showing  the  amounts  of  the  instalments  and  annuity 

65  payments. 

66  1 1 .  A  provision  that  the  holder  of  a  policy  shall  be  entitled  to  have  the 

67  policy  reinstated  at  any  time  within  three  years  from  the  date  of  de- 

68  fault,  unless  the  cash  surrender  value  has  been  duly  paid  or  the  extension 

69  period  has  expired,  upon  the  production  of  e\'idence  of  insurability  satis- 

70  factory  to  the  company  and  the  payment  of  all  overdue  premiums  antl 

71  any  other  indebtedness  to  the  company  upon  said  policy,  with  interest 

72  at  the  rate  of  not  exceeding  six  per  cent  per  annum. 

73  Any  of  the  foregoing  provisions  or  portions  thereof  not  applicable  to 

74  single  premium  or  non-participating  or  term  policies  shall  to  that  extent 

75  not  be  incorporated  therein,  and  paragraph  seven  shall  not  apply  to 

76  foreign  companies. 

77  This  section  shall  not  apply  to  policies  of  group  life  insurance  issued 

78  or  delivered  in  the  commonwealth  after  June  thirtieth,  nineteen  hun- 

79  dred  and  eighteen. 

80  A  policy  shall  be  deemed  to  contain  any  such  provision  in  substance 

81  when  in  the  opinion  of  the  commissioner  the  provision  is  stated  in  terms 

82  more  favorable  to  the  insured  or  his  beneficiary  than  are  herein  set 

83  forth. 


2004 


INSURANCE. 


[ClIAP.    175. 


Group  life 
insurance 
defined. 
191S,  112.  §  1. 


Section  133.  Group  life  insurance  is  hereby  defined  to  be  that  form 
of  hfe  insurance  covering  not  less  than  fifty  employees,  ■uith  or  without 
medical  examination,  "written  under  a  policy  issued  to  the  employer,  the 
premium  on  which  is  to  be  paid  by  the  employer  or  by  the  employer  and 
employees  jointly,  and  insuring  only  all  of  his  employees,  or  all  of  any 
class  or  classes  thereof  determined  by  conditions  pertaining  to  the  em- 
ployment, for  amounts  of  insurance  based  upon  some  plan  precluding 
indi\ddual  selection,  and  for  the  benefit  of  persons  other  than  the  em- 
ployer; provided,  that  when  the  premium  is  to  be  paid  by  the  employer 
and  employee  jointly  and  the  benefits  of  the  policy  are  ofi'ered  to  all 
eligible  employees,  not  less  than  seA-enty-five  per  cent  of  such  employees  11 
may  be  so  insured,  or  not  less  than  forty  per  cent  if  each  employee  be-  12 
longing  to  the  insured  group  has  been  medically  examined  and  found  13 
acceptable  for  ordinary  insurance  by  an  indi\idual  policy.  14 


Group  life 
policies  to  be 
approved  by 
commissioner 
and  to  contain 
certain  pro- 
visions. 
191S,  112,  §  2. 

Penalty,  §  190. 


1 

2 
3 
4 

5 
6 

7 

8 

9 

10 


Section  134.  No  policy  of  group  life  insurance  shall  be  issued  or 
delivered  in  the  commonwealth  until  a  copy  of  the  form  thereof  has 
been  on  file  for  thirty  days  with  the  commissioner,  unless,  before  the 
expiration  of  said  thirty  days,  he  shall  have  approved  the  policy  in 
writing;  nor  if  the  commissioner  notifies  the  company  in  writing,  within 
said  thirty  days,  that  in  his  opinion  the  form  of  the  policy  does  not  com- 
ply with  the  laws  of  the  commonwealth,  specifying  his  reasons  therefor, 
provided,  that  this  action  of  the  commissioner  shall  be  subject  to  review 
by  the  supreme  judicial  court;  nor  shall  any  such  policy  be  so  issued  or 
delivered  unless  it  contains  in  substance  the  following  provisions: 

1.  That  the  policy  shall  be  incontestable  after  two  years  from  its 
date  of  issue  except  for  non-payment  of  premiums  or  violation  of  the 
conditions  of  the  policy  relating  to  military  or  naval  service  in  time 
of  war. 

2.  That  the  policy,  the  application  of  the  employer  and  the  indi- 
vidual applications,  if  any,  of  the  emploj'ees  insured  shall  constitute  the 
entire  contract  between  the  parties,  and  that  no  statement  made  by  the 
employer  or  any  employee  or  on  their  behalf  shall  be  used  in  defence 
to  a  claim  under  the  policy  unless  contained  in  a  written  application. 

3.  That  the  premium  or  the  amount  of  insurance  payable  in  the 
event  of  a  misstatement  of  the  age  of  an  employee  shall  be  equitably 
adjusted. 

4.  That  the  company  will  issue  to  the  employer,  for  delivery  to  the 
employee  whose  life  is  insured  under  the  policy,  an  individual  certifi- 
cate setting  forth  a  statement  as  to  the  insurance  protection  to  which 
he  is  entitled  and  to  whom  payable,  together  with  a  provision  to  the 
efi'ect  that  if  the  employment  is  terminated  for  any  reason  whatsoever 
the  employee  shall  be  entitled  to  have  issued  to  him  by  the  company, 
without  evidence  of  insm-ability,  and  upon  application  made  to  the 
company  within  thirty-one  days  after  such  ternaination,  and  upon  the 
payment  of  the  premium  applicable  to  the  class  of  risk  to  which  he 
belongs  and  to  the  form  and  amount  of  the  policy  at  his  then  attained 
age,  a  policy  of  life  insurance  in  any  one  of  the  forms  customarily  issued 
by  the  company,  except  term  insurance,  in  an  amount  ecjual  to  the 
amount  of  his  insurance  under  such  group  policy  at  the  time  of  such 
termination. 

5.  That  to  the  group  or  class  thereof  originally  insured  shall  be  added 
from  time  to  time  all  new  employees  of  the  employer  eligible  to  in- 
surance in  such  group  or  class. 


1 

2 

3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 


Chap.  175.]  insurance.  2005 

40  A  policy  shall  be  deemed  to  contain  any  such  provision  in  substance 

41  when,  in  the  opinion  of  the  commissioner,  the  provision  is  stated  in 

42  terms  more  favorable  to  the  employer  or  employee  than  are  herein 

43  set  forth. 

1  Section  135.     No  such  policy,  or  the  proceeds  thereof  when  paid  to  Group  life 

2  any  employee  or  employees  thereunder,  or  to  their  beneficiaries,  shall  subfectto' 

3  be  liable  to  attachment,  trustee  process  or  other  process,  or  to  be  seized,  i9\8'''\"l2°§  4 

4  taken,   appropriated  or  applied  by  any  legal  or  equitable  process  or 

5  operation  of  law  to  pay  any  debt  or  liabilities  of  such  employee  or  his 

6  beneficiary  or  any  other  person  having  right  thereunder  either  before 

7  or  after  pajTnent;   nor  shall  the  proceeds  thereof,  when  not  made  pay- 

8  able  to  any  beneficiary,  constitute  a  part  of  the  estate  of  the  employee 

9  for  the  payment  of  his  debts. 

1  Section  136.     Such  policies  shall  be  exempt  from   any  loan  pro-  such  policies 

2  vision  or  requirement.     Any  equity  of  the  insured  in  a  group  life  in-  foanp'rovis^on. 

3  surance  policy  at  the  time  of  default  in  the  payment  of  a  premium,  ^^"^^g  j^,  ,  ^ 

4  whether  that  equity  exists  by  reason  of  the  terms  of  the  policy  or  by 

5  law,  shall  be  applied  to  purchase  extended  or  paid-up  insurance  for 

6  each  of  the  insured  at  attained  age  on  the  basis  of  the  mortality  table 

7  and  rate  of  interest  used  in  computing  the  premium  for  the  group. 

1  Section  137.     Under  any  group  policy  issued  by  a  domestic  mutual  Employer  only 

2  life  company,  the  employer  only  shall  be  a  member  of  the  company,  of  n  mutual 

3  and  entitled  to  one  vote  by  virtue  of  such  policy  at  the  meetings  of  L"umgTuch 

4  the  company.  i9is.  112,  §  6.  policies. 

1  Section  138.     So  much  of  this  chapter  as  is  inconsistent  with  sec-  Effect  of 

2  tions  one  hundred  and  thirty-three  to  one  hundred  and  thirty-seven,  to^is™^  "^ 

3  inclusive,  shall  not  apply  to  policies  issued  under  said  sections.  ^^^*'  ^^^'  ^  *• 


1  Section  139.     At  the  request  of  a  policy  holder  whose  policy  con-  Exchange  of 

2  tains  no  provision  for  exchange  or  alteration,  a  domestic  life  company  poucii.''^'' 

3  may  issue  and  deliver,  in  exchange  for  a  policy  issued  by  it  prior  to  Jan-  ^^^^-  *^®- 

4  uary  first,  nineteen  himdred  and  eight,  any  policy  of  life  or  endowment 

5  insurance  complying  with  the  laws  applicable  to  the  original  policy;  pro- 

6  \ided,  that  any  policy  so  issued  and  delivered  shall  be  issued  as  of  the 

7  date  of  the  original  policy,  and  shall  not  exceed  the  amount  payable  by 

8  the  terms  thereof. 

1  Section  140.     Except  as  provided  in  this  section,  every  domestic  Annual 

2  life  company  heretofore  or  hereafter  organized,  anything  in  its  charter  las'f,™^;  §  27. 

3  or  its  certificate  of  incorporation  or  special  act  to  the  contrary  notwith-  a^y.'slfiGo."' 

4  standing,  shall  pro\ide  in  e\'ery  policy  of  life  or  endowment  insiu^ance  ],sgo,  33. 

5  hereafter  issued  that  the  proportion  of  the  divisible  surplus  of  the  com-  §§  li'',  150 

6  pany  contributed  by  said  policy  shall  be  ascertained  and  distributed  is94'.  522',  1 75! 

7  annually,  and  not  other^vise,  beginning  not  later  than  the  end  of  the  r.  l".  us',  §  7s. 

8  third  policy  year;   but  such  distribution  shall  not  be  made  contingent  §§7(5,^122. 

9  upon  the  payment  of  any  further  premium  except  tJiat  if  dividends 

10  are  allowed  on  an  anniversary  of  the  policy  preceding  the  third,  such 

1 1  dividends  may  be  made  subject  to  the  payment  of  the  succeeding  year's 

12  premium.    Every  such  company  shall  on  December  thirty-first  of  each 


2006  INSURANCE.  [Ch.\P.    175. 

year  or  as  soon  thereafter  as  practicable,  after  providing  for  the  resen-e  13 
required  by  sections  nine  and  eleven  and  for  all  other  liabilities,  in-  14 
eluding  di\adends  declared  upon  the  capital  stock,  if  any,  and  such  15 
sum  as  may  be  held  on  account  of  existing  deferred  di^^dend  policies,  16 
and  pro\'iding  also  for  a  contingency  reserve  not  in  excess  of  the  limit  17 
prescribed  in  the  follo\\'ing  section,  apportion  its  remaining  funds  upon  18 
the  contribution  to  surplus  plan,  as  di^^dends,  to  all  other  policies  en-  19 
titled  to  share  therein.  Each  such  di\'idend  shall  annually,  at  the  option  20 
of  the  holder  of  the  policy,  (a)  be  payable  in  cash,  or  (&)  applied  in  21 
reduction  of  premiimis,  or  (c)  to  the  piu-chase  of  a  paid-up  addition,  or  22 
(rf)  be  left  %ntli  the  company  to  accumulate  to  the  credit  of  the  policy  23 
and  be  payable  at  the  maturity  thereof,  or  be  •tt-ithdra%vable  in  cash  on  24 
demand  by  the  holder  of  the  policy,  or  applied  as  hereinafter  set  forth;  25 
but  if  no  election  is  made  by  the  holder  of  the  policy  prior  to  any  anni-  26 
versary  thereof,  the  di\'idend  for  that  anni\ersary  shall  be  held  by  the  27 
company  as  p^o^^ded  in  option  (fZ);  and  if  any  premium  on  the  policy  28 
is  not  paid  at  the  expiration  of  the  days  of  grace,  the  company  shall  29 
keep  the  policy  in  force  by  applj-ing  the  di\'idend  accumulations  to  30 
the  paj-ment  due  on  the  policy  if  such  accumulations  are  sufficient  31 
to  make  said  payment  in  full,  and  shall  forthwith  mail  a  notice  to  the  32 
holder  thereof  at  his  last  known  address,  stating  what  amount  has  been  33 
so  applied,  and  if  a  balance  of  the  dividend  accumulations  remains  to  34 
the  credit  of  the  policy,  the  amount  thereof,  pro\'ided  that  the  share  of  35 
the  surplus  so  apportioned  to  a  term  policy  shall  not  be  available  for  the  36 
■  purchase  of  a  paid-up  addition,  and  provided  that  nothing  herein  con-  37 
tained  shall  operate  to  continue  a  policy  in  force  beyond  the  period  which  38 
any  dividend  accumulation  so  applied  would  carry  the  policy  under  its  39 
full  premium  rate,  nor  beyond  the  term  for  which  the  policy  was  orig-  40 
inally  issued,  and  that  the  affidavit  of  any  officer,  clerk  or  agent  of  the  41 
company,  or  of  any  one  authorized  to  mail  such  notice,  that  the  notice  42 
required  by  this  section  has  been  duly  mailed  by  the  company,  shall  be  43 
prima  facie  evidence  that  such  notice  was  duly  given.  44 

On  policies  of  industrial  insurance  on  which  premiums  are  payable  45 
weekly  the  annual  surplus  distribution  shall  begin  not  later  than  the  46 
end  of  the  fifth  policy  year,  and  be  applied  to  the  paj-ment  of  any  47 
premiums,  or  at  the  option  of  the  holder  of  the  policy  be  made  in  cash,  48 
but  such  distribution  shall  not  be  made  contingent  upon  the  payment  49 
of  future  premiums.  50 

This  section  shall  not  apply  to  contracts  of  pure  endowment  or  annul-  51 
ties  nor  to  any  stock  life  company  issuing  only  non-participating  poll-  52 
cies.  A  foreign  life  company  wliich  does  not  proAide  in  every  partici-  53 
pating  policy  hereafter  issued  or  delivered  in  the  commonwealth  that  54 
the  proportion  of  the  surplus  accruing  upon  said  policy  shall  be  ascer-  55 
tained  and  distributed  annually  and  not  otherwise,  either  by  pajTuent  56 
in  cash  of  the  amount  apportioned  to  a  policy,  or  by  its  application  to  57 
the  pajTnent  of  premimns  or  to  the  purcliase  of  paid-up  additions,  or  58 
for  the  accumulation  of  the  amounts  from  time  to  time  apportioned,  59 
said  accumulations  to  be  subject  to  withdrawal  by  the  policj^  holder,  60 
shall  not  be  permitted  to  do  new  business  within  the  commonwealth.        61 

i9cr7%n^'§' 77.  Section  141.  Any  domestic  life  company  may  from  its  surplus  funds  1 
or  profits  accumulate  and  hold,  or  hold  if  already  accumulated,  as  a  2 
safety  fund,  an  amount  not  in  excess  of  twelve  per  cent  of  its  reserve    3 


Chap.  175.]  insurance.  2007 

4  or  one  hundred  thousand  dollars,  whichever  is  greater,  and,  in  addition 

5  thereto  any  surplus  that  may  have  been  contributed  by  the  holders  of 

6  the  guaranty  stock  of  the  company,  or  which  has  been  accumulated  for 

7  the  retirement  of  said  guaranty  stock  and  the  margin  of  the  market 

8  value  of  its  securities  over  their  book  value,  provided  that  in  cases  where 

9  the  existing  surplus  or  safety  fund,  exclusive  of  all  accumulations  held  on 

10  account  of  existing  deferred  dividend  policies,  exceeds  the  limit  above 

11  designated,  the  company  shall  be  entitled  to  retain  said  surplus  or  safety 

12  fund,  but  shall  not  be  entitled  to  add  thereto  so  long  as  it  exceeds  said 

13  limit,  and  provided  that  for  cause  shown,  the  commissioner  may  at  any  ^ 

14  time  and  from  time  to  time  permit  any  company  to  accumulate  and 

15  maintain  a  safety  fund  in  excess  of  the  limit  above  mentioned,  for  a 

16  prescribed  period  not  exceeding  one  year  in  any  one  permission,  by  filing 

17  in  his  office  a  decision  stating  his  reasons  therefor,  and  causing  the  same 

18  to  be  published  in  his  next  annual  report. 

19  This  section  shall  not  apply  to  any  company  issuing  only  non-partici- 

20  pating  policies. 

1  Section  142.     After  three  full  annual  premiums  have  been  paid  on  Loans. 

2  any  policy  of  life  or  endowment  insurance  issued  by  a  domestic  life  igis]  47. ' ' 

3  company  after  December  thirty-first,  nineteen  hundred  and  seven,  the 

4  holder  thereof,  upon  its  proper  assignment  to  the  company,  shall  within 

5  ninety  days  of  the  application  therefor  be  entitled  to  a  loan  from  the 

6  company,  on  the  sole  security  of  the  policy  and,  at  not  exceeding  six  per 

7  cent  interest,  of  a  sum  not  exceeding  its  loan  value,  which  loan  ^'alue 

8  shall  be  not  less  than  ninety-fiA'e  per  cent  of  the  cash  sm-render  value  of 

9  the  policy  at  the  end  of  the  policy  year  during  which  the  application 

10  for  the  loan  is  made,  computed  as  prescribed  by  section  one  hundred 

11  and  forty-four,  and  of  all  dividend  ailditions  thereto,  less  any  indebted- 

12  ness  to  the  company  and  any  unpaid  portion  of  the  premimn  for  the 

13  then  ciu-rent  policy  j'ear.     Failure  to  repay  any  such  loan  or  to  pay 

14  interest  thereon  shall  not  avoid  the  policy  while  the  total  indebtedness 

15  thereon  is  less  than  such  loan  value  at  the  time  said  default  in  paj-ment 

16  occurs,  nor  until  thirty  days  after  notice  has  been  mailed  by  the  com- 
17"  pany  to  the  last  known  address  of  the  insured.     The  affidavit  of  any 

18  officer,  clerk  or  agent  of  the  company,  or  of  any  one  authorized  to  mail 

19  such  notice,  that  the  notice  required  by  this  section  has  been  duly 

20  mailed  by  the  company,  shall  be  prima  facie  evidence  that  such  notice 

21  was  duly  given.    Nothing  in  this  section  shall  require  any  company  to 

22  make  a  loan  upon  any  policy  for  less  than  twenty-five  dollars. 

23  This  section  shall  not  apply  to  term  policies  nor  to  those  in  force  as 

24  extended  insurance  as  provided  in  clause  (c)  of  section  one  hundred  and 

25  forty-four. 

1  Section  143.     All  policies   of  life  or  endowment  insurance  issued  certain  poii- 

r%  •  T  /»•  iiti'ii  1  *^'^^  subject  to 

2  prior  to  January  first,  nmeteen  hundred  and  eight,  by  any  domestic  life  earlier  laws 

3  company  shall  be  subject  to  the  laws  limiting  forfeiture  applicable  and  forfeiture. 

4  in  force  at  the  date  of  their  issue.       isso,  232,  §  6.        p.s.  119.  §§  159, leo, lee. 

18S7.  214,  §  76.  1896,470.  R.  L.  118,  5  76. 

1894,  522,  §  76.  1900,  363,  §  3.  1U07,  576,  |§  79,  122. 

1  Section  144.     After  three  full  annual  premiums  have  been  paid  on  Policies  issued 

2  any  policy  of  life  or  endowment  insurance  issued  by  a  domestic  life  si'^iool"™ 

3  company  after  December  thirty-first,  nineteen  hundred  and  seven,  the  rend'er Value, 


2008 


INSURANCE. 


[Ch.U'.    175. 


extended  term 
insurance  or 
paid-up  policy 
after  three 
annual  premi- 
ums have 
been  paid, 
1861,  186. 
1877.61, 
1880,  232, 
§§  1-5. 
P.  S.  119. 
§§  lGl-166. 
1SS7,  214,  §  70, 
189-4,  522,  §  76. 
1896,  470, 
1900,  303.  §  3, 
R,  L,  118.  I  76. 

1907,  676, 
§§  80,  122. 

1908,  166. 
1910.  366. 
1916.47. 

100  Mass.  500. 
103  Mass.  254. 
123  Mass.  113. 
127  Mass.  153. 
170  Mass.  254. 
181  Mass.  341. 


holder  thereof,  within  thirty  days  after  any  default  in  the  payment  of  a  4 
subsequent  premium,  may  elect,  by  a  writing  filed  with  the  company  5 
at  its  home  office,  (a)  to  surrender  the  policy  and,  with  the  written  assent  6 
of  the  person  to  whom  it  is  made  payable,  receive  its  value  in  cash,  or  7 
(6)  take  paid-up  insurance  which  shall  be  participating  if  the  policy  is  8 
on  a  participating  basis,  payable  at  the  same  time  and  on  the  same  9 
conditions  as  in  the  original  contract,  or  (c)  have  tlie  policy  continued  10 
in  force  as  extended  term  insurance  from  the  anniversary  date  last  11 
passed  for  its  face  amount,  including  any  outstanding  di\adend  ad-  12 
ditions  and  less  any  indebtedness  thereon  or  secured  thereby,  but  with-  13 
out  the  right  to  loans;  provided,  that  a  policy  whose  proceeds  are  pay-  14 
able  in  instalments  or  as  an  annuity  may  pro\ide  that  if  either  option  15 
(b)  or  (c)  becomes  operati^■e  the  proceeds  of  the  policy  shall  be  payable  16 
in  one  sum.  The  cash  surrender  value  shall  be  the  reserve  on  tlie  policy  17 
at  the  end  of  the  last  pohcy  year  for  which  the  premium  was  paid  in  18 
full,  plus  a  proportionate  part  of  the  increase  in  the  cash  value  at  the  19 
end  of  the  succeeding  year  if  any  instalment  not  less  than  a  c^uarterly  20 
instalment  of  the  premium  for  that  year  has  been  paid,  and  of  any  21 
di\-idend  additions  thereto,  computed  on  the  mortality  and  interest  22 
assumption  upon  which  the  company  elects  to  reserve  as  prescribed  23 
by  section  nine,  less  a  surreiuler  charge  of  not  more  than  five  per  cent  24 
of  the  present  value  of  tlie  future  net  premiums,  which  by  its  terms  25 
the  policy  is  exposed  to  pay  in  case  of  its  continuance,  computed  upon  26 
the  aforesaid  mortality  and  interest  basis,  and  less  any  existing  in-  27 
debtedness  to  the  company  on  the  policy  or  secured  thereby.  The  28 
company  may  reserve  the  right  to  defer  the  payment  of  such  cash  value  29 
for  not  exceeding  ninety  days  after  the  application  therefor  is  made.  30 
The  term  for  which  tlie  policy  'will  be  continued  or  the  amount  of  the  31 
paid-up  policy  will  be  such  as  the  cash  value  will  purchase  as  a  net  32 
single  premimn  at  attained  age  of  the  insured  according  to  the  mor-  33 
tality  and  interest  basis  heretofore  designated.  But  in  case  of  an  en-  34 
dowment  policy,  if  the  sum  applicable  to  the  purchase  of  extended  35 
term  insurance  shall  be  more  than  sufficient  to  continue  the  insurance  36 
to  the  end  of  the  endowment  term  named  in  the  policy,  the  excess  shall  37 
be  used  to  purchase  in  the  same  manner  non-participating  paid-up  pure  38 
endowment,  payable  at  the  end  of  the  endowment  term  on  the  same  39 
conditions.  40 

If  the  holder  shall  not  within  thirty  days  from  default  surrender  the  41 
policy  to  the  company  for  cash  as  provided  in  option  (a),  or  elect,  by  a  42 
writing  filed  witli  the  company  at  its  home  office,  to  take  extended  term  43 
insurance  as  pro\ided  in  option  (c),  the  insurance  will  be  bintling  upon  44 
the  company  from  the  date  of  default  ■uithout  any  further  stipulation  45 
or  act  as  provided  in  option  (6).  The  paid-up  or  extended  term  in-  46 
surance  granted  by  the  terms  of  the  policy  shall  have  a  cash  surrender  47 
value  which  shall  be  its  net  value  less  any  indebtedne.ss  to  the  company  48 
on  account  of  such  policy  or  secured  thereby,  and  the  holder  thereof  49 
may,  witliin  ninety  days  of  the  application  therefor,  and  ■^-ith  the  written  50 
assent  of  the  person  to  whom  the  policy  is  payable,  claim  and  receive  51 
in  cash  such  surrender  value.  52 

Every  such  policy  which  by  its  terms  has  become  paid  up  shall  have  a  53 
cash  surrender  value  which  shall  be  its  net  value,  less  not  more  than  five  54 
per  cent  of  one  net  annual  premium  on  a  ten  payment  life  policy  at  the  55 
age  of  entry  of  the  insured,  and  less  any  indebtedness  to  the  company  56 
on  such  policy  or  secured  thereby;  and  the  holder  thereof  may,  \\itJiin  57 


i 


Chap.  175.]  insurance.  2009 

58  ninety  days  of  the  application  therefor  and  vnth  the  WTitten  assent  of 

59  the  person  to  wJiom  tlie  poHcy  is  payable,  claim  and  receive  in  cash 

60  such  surrender  ^'ahle. 

61  This  section  shall  not  apply  to  annuity  or  pure  endo\\Tnent  contracts 

62  \\-ith  or  without  return  of  premiums,  or  to  survivorship  insurance,  and, 
6.3  in  the  case  of  a  policy  pro\-iding  for  both  insurance  and  an  annuitj^, 

64  shall  apply  only  to  that  part  of  the  contract  providing  for  insurance; 

65  but  every  such  contract  providing  for  a  deferred  annuity  on  the  life  of 

66  the  insiu-ed  only  shall,  unless  paid  for  by  a  single  premium,  provide 

67  that,  in  the  event  of  the  non-payment  of  any  premium  after  three  full 

68  years'  premiums  shall  have  been  paid,  the  annuity  shall  automatically 

69  become  con^'erted  into  a  paid-up  annuity  for  such  proportion  of  the 

70  original  annuity  as  the  number  of  completed  years'  premiums  paid  bears 

71  to  the  total  number  of  premiums  required  under  the  contract. 

1  Section  145.     On  policies  of  industrial  insurance  issued  on  or  before  Cash  surrender 

2  December  tliirty-first,  nineteen  hundred  and  ele^'en,  by  a  domestic  life  Mustrfai 

3  company  on  which  premiums  are  paid  weekly  and  are  not  more  than  {JefMl^  "*^"'"* 

4  fifty  cents  each,  the  surrender  value  shall  in  all  cases  be  payable  In  cash,  December  si. 

5  which  shall  be  a  legal  claim  for  not  more  than  two  years  from  the  date  p^f 'i^jg^'A^ 

6  of  lapse,  and  be  pa-s-able  within  sixtv  davs  after  the  demand  therefor.  iss7, 214,  s  le. 

T.       .  .  J^    ^'  ''  .  .  ,  1S94    522,  §  76 

7  Witliln  ninety  days  after  the  lapse  of  any  policy  which  has  a  surrender  isoe!  470! 

8  value  and  upon  which  a  settlement  has  not  been  made,  the  company  r.  l'.  11s',  §  76. 

9  shall  send  a  notice  thereof  to  the  last  known  address  of  the  holder  of  §§°s6,^'22. 

10  said  policy,  which  shall  state  the  amount  of  the  surrender  value  of  said  \^q-  Hf 

1 1  policy.    The  affi^la^it  of  any  officer,  clerk  or  agent  of  tlie  company,  or  jaji.  pi.  §  i- 

12  any  one  authorized  to  mail  such  notice,  that  the  notice  reciulred  herein 

1 3  has  been  duly  mailed  by  the  company,  shall  be  prima  facie  evidence  that 

14  such  notice  was  duly  given. 

1  Section  146.     After  premiums  have  been  paid  for  three  full  years  industrial 

2  on  any  policy  of  industrial  insurance  issued  by  a  domestic  life  company  .?fter"De™mber 

3  after  December  thirty-first,   nineteen  hundred  and  eleven,  in  case  of  ?end«i^term"in- 

4  failure  to  pay  any  subsequent  premium  the  policy  shall  be  binding  upon  three^ears""^ 

5  the  company  from  the  date  of  default,  without  anv  further  stipulation  premiums  have 

*         "^  ,  .  "  ■*■  been  paid, 

6  or  act,  as  extended  term  insurance  for  its  face  amount,  from  the  date  to  ion,  301.  §  1. 

.  .  .  .  1912   52 

7  which  premiums  have  been  paid,  for  such  term  as  will  be  purchased  at 

8  the  attained  age  of  the  insiu-ed  by  a  net  single  premium,  which  shall  be 

9  the  full  reserve  on  the  policy  at  the  end  of  the  last  policy  j'car  for  which 

10  the  premiums  were  paid  in  full,  plus  a  proportionate  part  of  the  increase 

11  in  the  reserve  of  the  succeeding  year  for  each  additional  thirteen  weeks' 

12  premium  paid,  computed  upon  the  mortality  and  interest  assumption 

13  on  which  the  company  elects  to  reserve  as  prescribed  by  section  nine, 

14  less  an  amount  not  exceeding  two  and  one  half  per  cent  of  the  sum  in- 

15  sured,  and  less  any  indebtedness  to  the  company  on  the  policy  or  secured 

16  thereby.    But  in  case  of  an  endo\\Tnent  policy,  if  the  sum  applicable  to 

17  the  purchase  of  extended  term  insurance  shall  be  more  than  sufficient 

18  to  continue  the  insurance  to  the  end  of  the  en(kn\'ment  term  named  in 

19  the  policy,  tlie  excess  shall  be  used  to  purchase  in  the  same  manner 

20  non-participating  paid-up  pure  endowment,  payable  at  the  end  of  the 

21  endowment  term  on  the  same  conditions. 

1  Section  147.     After  premiums  have  been  paid  for  five  full  years  upon  Same  subject. 

2  any  such  policy  of  industrial  insurance,  the  holder  thereof,  in  case  of  any  or^'casl'^su?-"^'' 


2010 


rNSUE.VNCE. 


[Ch.u>.  175. 


If?e1-''five  years'  default  in  tlic  payment  of  a  subsequent  premium,  may,  by  -m-iting  filed  3 
Eav^bMn  ^^*-^^  t'^®  company  at  its  home  office,  within  the  term  of  extension  and  4 
i9n'  361  5  2  "°*'  '^^^^  t^o-T^  thirteen  weeks  from  the  date  to  which  premiums  have  5 
been  paid,  elect  in  lieu  of  extended  term  insurance,  (1)  to  surrender  the  6 
policy  to  the  company  and  recei^'e  in  exchange  therefor  a  paid-up  policy  7 
of  not  less  value  according  to  the  mortality  and  interest  basis  aforesaid,  8 
payable  at  the  same  time  and  on  the  same  conditions  as  the  original  9 
policy,  or  (2)  to  surrender  the  policy,  with  the  written  assent  of  the  10 
person  to  whom  it  is  payable,  and  receive  its  value  in  cash  ^\^thin  sixty  11 
days  after  the  demand  therefor.  Said  cash  surrenrler  A-alue  shall  be  equal  12 
to  the  net  single  premium  computed  in  the  manner  pro%'ided  in  the  pre-  13 
ceding  section  in  the  case  of  extended  insurance.  Any  such  policy  of  14 
industrial  insurance  which  shall,  after  five  years  from  its  original  date  15 
of  issue,  become  extended  term  insurance  or  a  paid-up  policy  shall  have  16 
a  cash  surrender  value  which  shall  be  its  net  %alue  at  the  date  of  the  17 
application  therefor,  less  any  indebtedness  to  the  company  then  existing  18 
thereon  or  secured  thereby,  which  the  holder  thereof  may,  ^^^th  the  19 
written  assent  of  the  person  to  whom  the  policy  is  payable,  claim  and  20 
receive  in  cash  within  sixty  days  after  WTitten  demand  therefor.  21 


Notice  of 
lapse  of  such 
policy,  etc. 
1911,  361,  §  3. 


Section  148.     Within  ninety  days  after  the  lapse  of  any  such  policy  1 

of  industrial  insurance  on  which  any  of  the  foregoing  options  have  be-  2 

come  available,  and  upon  which  settlement  has  not  been  made,  not  con-  3 

taining    a    table    showing  in  figures  the  extended   insurance,   paid-up  4 

insurance  and  cash  surrender  values  available  as  pro-\'ided  by  the  two  5 

preceding  sections,  the  company  shall  send  a  notice  thereof  to  the  last  6 

known  address  of  the  insured  stating  the  term  of  extension  and  the  7 

amount  of  the  paid-up  insurance  and  the  amount  of  the  surrender  8 

value.    The  affidavit  of  any  officer,  clerk  or  agent  of  the  company,  or  9 

any  one  authorized  to  mail  such  notice,  that  the  notice  required  herein  10 

was  dulj'  mailed  by  the  company,  shall  be  prima  facie  evidence  that  such  11 

notice  was  duly  given.  12 


Company 
not  to  issue 
participating 
and  non- 
participating 
policies. 
1907,  576,  §  81. 


Section  149.     No  domestic  stock  or  mutual  life  company,  issuing  or  1 

professing  to  issue  on  or  after  January  first,  nineteen  hundred  and  eight,  2 

any  participating  policies,  shall  issue  any  policies  of  life  or  endo'miient  3 

insurance  wliich  do  not  by  their  terms  gWe  to  the  hoklers  thereof  full  4 

right  to  participate  in  the  accumulations  of  said  company  as  pro\'ided  5 

in  section  one  hundred  and  forty.    This  section  shall  not  apply  to  an-  6 

nuity  or  pure  endowment  contracts.  7 


Admission. 
1887,  214,  §  77. 
1894,  522,  §  77. 
1896,  124. 
R.  L.  lis,  §  77. 
1904.  304. 
1907,  576, 
|§  83,  122. 
160  Mass.  413. 

1  Op.  A.  G.  1, 
115,  455. 

2  0p.  A.  G. 
2S9. 

Op.  A.  G. 
(1919)  120. 


FOREIGN  COMPANIES. 

Section  150.     Foreign  companies,  upon  complying  with  the  condi-  1 

tions  herein  set  forth  applicable  to  such  companies,  may  be  admitted  2 

to  transact  in  the  commonwealth,  as  provided  in  section  one  hundred  3 

and  fifty-seven,  any  kinds  of  business  authorized  by  this  chapter,  subject  4 

to  all  general  laws  now  or  hereafter  in  force  relative  to  insurance  com-  5 

panics,  and  subject  to  all  laws  applicable  to  the  transaction  of  such  busi-  6 

ness  by  foreign  companies  and  their  agents;    but  no  pro\ision  of  law  7 

which  by  its  terms  applies  specifically  to  domestic  life  companies  shall  8 

thereby  become  applicable  to  foreign  life  companies.  9 

The  license  of  any  such  foreign  company  shall  expire  on  June  thirtieth  10 

of  each  year,  unless  sooner  revoked  or  suspended  as  provided  in  section  11 


Chap.  175.]  insukance.  2011 

12  five,  but  may  be  renewed  by  the  commissioner  on  or  before  tliat  date  on 

13  written  application  of  the  company. 

1  Section  151.     No  foreign  company  shall  be  admitted  and  authorized  admfgsion^"^ 

2  to  do  business  until  —  i826,  hi,  §  i. 

R.  S.  37,  §  40.  1867.  267,  §§  1,  4,  7.  1894,  522,  §  78,  cl.  1. 

1852,311,5  6.  1868,  317,  §  1.  R.  L.  118.  §  78.  cl.  1. 

1854,  453,  §  35.  1878.  36,  §  3.  1907,  570,  §  84,  cl.  1,  §  122. 

1856,  252,  §  48.  P.  S.  119,  §  199.  1919,  114,  §  2. 

G.  S.  58,  §  71.  1887.  214,  §  78,  cl.  1.  2  Op.  A,  G.  64. 

3  First,  It  has  deposited  with  the  commissioner  a  certified  copy  of  its  2  Alien,  398. 

4  charter  or  deed  of  settlement  and  a  statement  of  its  financial  condition    ^"  ^^^^'  ^^*' 

5  and  business,  in  the  form  prescribed  by  section  tweiity-fi\e,  and  signed 

6  and  sworn  to  as  p^o^^ded  in  said  section,  and  has  paid  for  the  filing 

7  of  such  copy  thirty  dollars,  and  for  the  filing  of  such  statement  twenty 

8  dollars. 

9  Second,  It  has  satisfied  the  commissioner  that  (1)  it  is  fully  and  55^2%'*^' 

10  legally  organized  under  the  laws  of  its  state  or  government  to  do  the  IVfi^J^ 

11  business  it  proposes  to  transact;   that  (2)  it  has,  if  a  stock  company,  a  If*'''^''^- 

12  fully  paid-up  and  unimpaired  capital,  exclusive  of  stockholders'  obliga-  1852,311,57. 

13  tions  of  any  description,  of  an  amount  not  less  than  is  required  of  i85o!252',     '' 

14  domestic  companies  under  sections  forty-eight  and  fifty-one;    that  (3)  g. "'ssf 

15  it  has,  if  a  mutual  company,  other  than  life,  (a)  net  cash  assets  equal  |go3%49,  §  10 

16  to  the  capital  required  of  like  companies  on  the  stock  plan;  or  (b)  net  Jfgg'fj^'  t  }• 

17  cash  assets  of  not  less  than  fifty  thousand  dollars  and  contingent  assets  1872]  375',  §  le. 
IS  of  not  less  than  three  hundred  thousand  dollars,  or  (c)  net  cash  assets  p.  s.'iig. 

19  of  not  less  than  se\enty-five  thousand  dollars,  with  contingent  assets  of  iss?,  214,  ' 

20  not  less  than  one  hundred  and  fifty  thousand  dollars,  or  (rf)  net  cash  isiM',^!,' 

■  21  assets  equal  to  its  total  liabilities  and  contingent  assets  of  not  less  than  lg^~;  270  §  1 

22  one  hundred  thousand  dollars;    (4)  that  such  capital  and  assets,  other  f'^l'j.^'l 

23  than  contingent,  are  well  in\ested  and  available  for  the  pa^-ment  of  iao''.  5^«, 

.      .  .  .  .*  5  84   cl  2   5 122 

24  losses  in  the  commonwealth;  and  (5)  that  it  insures  in  a  single  risk  where-  igon.  415. 

25  ever  located  an  amount  no  larger  than  one  tenth  of  its  net  assets  except 

26  as  pro\'ided  in  section  twenty-one. 

27  Third,  It  has  filed  with  the  commissioner  a  power  of  attorney  consti-  §§^|:5^^'' 

28  tuting  and  appointing  the  commissioner  or  his  successor  its  true  and  }||^'^|o  I4I 

29  lawful  attorney,  upon  whom  all  lawful  processes  in  any  action  or  legal  g  s.'ss, ' 

30  proceeding  against  it  may  be  served,  and  therein  shall  agree  that  any  i867,'267,  §  1. 

31  lawful  process  against  it  which  may  be  served  upon  its  said  attorney  shall  is75!  79. 

32  be  of  the  same  force  and  validity  as  if  served  on  the  company,  and  p*';!' no.  §202. 

33  that  the  authority  thereof  shall  continue  in  force  irrevocable  so  long  as  §*7Y'eV3 

34  any  liability  of  the  company  remains  outstanding  in  the  commonwealth.  I^||'^®,-|' 

35  The  power  of  attorney  shall  be  executed  by  the  president  and  secretary  R-  l-  11s,  §  78. 

36  of  the  company,  or  other  officers  duly  authorized  thereto,  under  its  cor-  1907'.  576'.' 

37  porate  seal,  and  shall  be  accompanied  by  a  certified  copy  of  the  resolu-  12  dray,  201.  ' 

38  tion  of  the  board  of  directors  of  the  company  making  said  appointment  u  Aiie",' ise! 

39  and  authorizing  the  execution  of  said  power  of  attorney  which  shall  be  J3I  Jj!^^^-  HI' 

40  in  a  form  prescribed  by  the  commissioner.    Tlie  ser\ice  of  such  process  }ll  ^\'^^'-  2S2. 

,,       I      II  1  111  •  •        ,        !•  •         1       1  rr-  I.  139  Mass.  295. 

41  shall  be  made  by  leaMng  the  same  in  duplicate  in  the  hands  or  office  or  149  Mass.  26. 

42  the  commissioner.    One  of  the  duplicates  of  such  process,  certified  by  the  loo  M.-is.s'4i3! 

43  commissioner  as  ha\'ing  been  served  upon  him,  shall  be  deemed  sufficient  Ic.s  Mlllseb. 

44  ev-idence  thereof,  and  ser\'ice  upon  such  attorney  shall  be  deemed  serN-ice  \li  l\lll\  }f|; 

45  upon  the  principal.  94  u.  s.  535. 

46  Fourth,  It  has  appointed  as  pro\nded  in  section  one  hundred  and  sixty-  iss?,  214^. 

47  tliree  some  residents  of  the  commonwealth  as  its  agents  therein.  ism',  522,' 

R.  L.  lis,  §  78,  cl.  4.  1907,  576,  §  84,  d.  4,  §  122.  8  Gray,  206.  1  Allen,  43G.  § 'S,  cl.  4. 


2012 


INSUK.\NCE. 


[Ch.\p.  175. 


G^l'58^'§y^'  Fifth,  It  has  obtained  from  the  commissioner  a  Hcense  stating  that  48 
ITi'i'^^'  ^*  ^^^^  comphed  ^\^th  the  laws  of  the  commonwealth  and  specif jing  the  49 
1868, 317,  §  1.    kinds  of  business  it  is  authorized  to  transact.  50 


p.  S.  119,  §  198. 
1887,  214,  §  78.  cl.  5. 


1894,  522,  §  78,  cl.  5. 
R.  L.  118,  §  78,  cl.  5. 


1907,  576,  §  84,  cl.  5,  §  122 
2  0p.  A.  G.64. 


Kinds  of 
business 
which  may  be 
combined  by 
foreign  com- 
panies. 
1879,  130. 
1881,51. 
P.  S.  119,  §201. 
1887,  214,  §  80. 
1889,  356. 
1891,  195. 

1894,  133,  §  3; 
522,  §  80. 

1895,  474,  §  3. 

1896,  140. 
1898,  380,  §  1. 
R.  L.  118, 

§§  56,  80. 


Section  152.  Any  foreign  stock  company  admitted  to  this  common- 
wealth, or  any  company  admitted  under  section  one  hundred  and  fifty- 
five,  may,  if  its  charter  permits,  transact  the  kinds  of  business  per- 
mitted to  domestic  stock  companies  under  section  fifty-one,  and  shall  be 
subject  to  said  section  fifty-one  and  to  section  fiifty-two.  Any  foreign 
mutual  company  admitted  to  this  commonwealth  may,  if  its  charter 
permits,  transact  the  kinds  of  business  permitted  to  domestic  mutual 
companies  by  clauses  («),  (rf),  (e),  if)  and  (g)  of  section  fifty-four.  Any 
foreign  life  company  admitted  to  this  commonwealth  may,  if  its  charter 
permits,  transact  the  kinds  of  business  permitted  to  domestic  life  com-  10 


panies  under  section  one  hundred  and  nineteen. 

1905,  401,  §  1.  1912,  524. 

1907,  576,  §§  34,  122.        1913,  489. 

1916,  32;  135. 

1918,  36;  86. 


.  576, 

1908,  543;  646. 

1909,  192,  §  2;  488. 
1911,  205. 


1919,  140. 


1902,340,  §§  1,3. 

1920.  152;  327.  §  2. 
155  Mass.  404. 
217  Mass.  47. 
lOp.  A.  G.  19,47. 
2  Op.  A.  G.  64. 


11 


Conditions  of 
admission  of 
foreign  life 
companies. 
1878.  130, 
§§1,7. 

P.  S.  119,  §218. 
1887,  214,  §  67. 
1894,  522,  §  67. 
R.  L.  118.  §  67. 
1907,  576, 
§§  68,  122. 
1  Op.  A.  G.  269. 


Section  153.  A  company  organized  under  the  laws  of  any  other  of  1 
the  United  States  for  the  transaction  of  life  insurance  may  be  admitted  2 
to  do  business  in  this  commonwealth,  upon  comphang  with  section  one  3 
Jiundred  and  fifty-one,  if  it  has  the  requisite  funds  of  a  life  company  and,  4 
in  the  opinion  of  the  commissioner,  is  in  sound  financial  condition  and  5 
has  policies  in  force  upon  not  less  than  one  thousand  lives  in  the  United  6 
States  for  an  aggregate  amount  of  not  less  than  one  million  dollars.  Any  7 
such  company  organized  under  the  laws  of  a  state  or  government  other  8 
than  one  of  the  United  States  may  be  so  admitted  if,  in  addition  to  ful-  9 
filling  the  above  requirements,  it  complies  ^\'ith  section  one  hundred  and  10 
fifty-five  and  if  it  shall  ha\-e  and  keep  on  deposit  or  in  the  hands  of  trus-  11 
tees,  as  pro\-ided  in  said  section  one  hundred  and  fifty-five  and  in  section  12 
one  hundred  and  fifty-six,  in  exclusive  trust  for  the  security  of  its  con-  13 
tracts  with  policy  holders  in  the  United  States,  funds  of  an  amount  equal  14 
to  the  net  ^•alue  of  all  its  policies  in  the  United  States  and  not  less  than  15 
two  hundred  thousand  dollars.  16 


Service  of 
process  on 
commissioner. 

1878.  36.  §2. 

1879,  14. 

P.  S.  119,  §203. 
1887,  214.  §  14. 
1894,  522.  §  14. 
R.  L.  lis,  §  14; 
126,  §  5. 
1907,  576, 
§§  14.  122. 
215  Mass.  204. 


Section  154.     When  legal  process  is  served  upon  the  commissioner  1 

as  attorney  for  a  foreign  company  under  the  third  clause  of  section  2 

one  hundred  and  fifty-one,  he  shall  forthwith  forward  one  of  the  dupli-  3 

cate  copies  of  the  process  served  on  him  to  its  secretary,  or,  in  the  case  4 

of  a  company  of  a  foreign  country,  to  its  resident  manager  in  the  United  5 

States,  or  to  such  other  person  as  may  previously  have  been  designated  6 

by  the  company  by  written  notice  filed  in  the  office  of  the  conimis-  7 

sioncr.    As  a  condition  of  valid  and  eft'ectual  service  and  of  the  duty  of  8 

the  commissioner  in  the  premises,  the  plaintiff  in  each  such  process  shall  9 

pay  to  the  commissioner  at  the  time  of  service  thereof  the  sum  of  two  10 

dollars,  which  the  said  plaintiff  shall  recover  as  taxable  costs  if  he  pre-  11 

vails  in  his  suit.    The  commissioner  shall  keep  a  record  of  all  such  proc-  12 

esses  showing  the  day  and  hour  of  service.  13 


admfislonof         SECTION  155.     A  foreign  company,  if  formed  under  the  laws  of  any     1 
foreigncounti^  govemmeut  or  state  other  than  the  United  States  or  one  of  the  United    2 


Chap.  175.]  insue.usice.  2013 

3  States,  shall  not  be  admitted  and  authorized  to  do  business  until,  besides  ists,  iso, 

4  complying  with  the  conditions  of  section  one  hundred  and  fifty-one  —       p.  s.  lio.  5  21s. 

5  First,  It  has  satisfied  the  commissioner  that  it  has  made  a  deposit  }||I;  522.'  §  79; 

6  ^^^th  the  state  treasurer  or  with  the  proper  board  or  officer  of  some  other  fg,,^- 1|^'  |  ^^■ 

7  state  of  the  United  States  of  an  amount  not  less  than  the  capital  required  i90|'  |oi'  §  2. 

8  of  domestic  companies  by  sections  forty-eight  and  fifty-one.    Such  deposit  §§  ss,  122. 

9  shall  be  in  exclusive  trust  for  the  benefit  and  security  of  all  the  company's 

10  policy  holders  and  creditors  in  the  United  States,  and  may  be  made  in  the 

1 1  securities  and  subject  to  the  limitations  specified  in  sections  sixty-three 

12  and  sixty-six.    Of  such  deposit  an  amount  equal  to  the  capital  required 

13  of  domestic  companies  by  this  chapter  shall  be  regarded  as  the  deposit 

14  capital  in  the  company's  annual  statement  the  same  as  the  capital  stock 

15  of  domestic  companies,  but  the  excess  of  any  such  deposit  shall  not  be 

16  charged  to  the  company  as  a  liability  for  deposit  capital. 

17  Second,  It   has  appointed,   as  its   resident  manager  in  the  United 

18  States,  a  citizen  or  corporation  of  the  United  States  approved  by  the  com- 

19  missioner,  and  has  filed  with  him  a  certified  copy  of  the  record  of  the 

20  appointment  of  such  manager  by  the  directors  of  the  company  and  a 

21  duplicate  original  of  the  power  of  attorney  to  the  United  States  manager 

22  which  shall  be  in  a  form  satisfactory  to  the  commissioner. 

2o      Third,  It  has  filed  with  the  commissioner,  in  such  form  and  detail 

24  as  he  may  require,  a  statement  of  its  trustees  appointed  under  section 

25  one  hundred  and  fifty-six  showing  the  funds  held  by  such  trustees,  signed 

26  and  sworn  to  by  them,  or  if  the  trustee  is  a  corporation,  signed  and  sworn 

27  to  by  its  president  and  secretary  or  other  duly  authorized  officers. 

28  The  documents  required  by  this  section  and  sections  one  hundred  and 

29  fifty-one  and  one  hundred  and  fifty-six  shall  be  executed  and  authenti- 

30  cated  in  a  manner  satisfactory  to  the  commissioner. 

1  Section  156.     Any  such  company  ma;s'  appoint  trustees,  who  are  Company  of  a 

2  citizens  or  corporations  of  the  United  States  and  approved  bj^  the  com-  t^Tmay  a^ 

3  missioner,  to  hold  funds  in  trust  for  the  benefit  of  its  policy  holders  and  ?8i.8' iSS;""^'' 

4  creditors  in  the  United  States.     Said  trustees  shall  be  named  by  the  |^  |;  f  J; 

5  directors  of  the  company,  and  a  certified  copy  of  the  record  of  the  appoint-  flg^-^^ju  "§  si 

6  ment  of  such  trustees  and  a  duplicate  original  of  the  deed  of  trust  on  a  1894' 52|'  §  si. 

7  form  appro\ed  by  him  shall  be  filed  Mith  the  commissioner,  who  may  1907! 576." 

8  examine  such  trustees  and  the  assets  in  trust  and  all  books  and  papers 

9  relative  thereto  in  the  same  manner  as  he  may  examine  the  officers,  agents, 

10  assets  and  affairs  of  companies.    The  funds  so  held  by  such  trustees,  so 

11  far  as  the  same  are  in  securities,  money  or  credits  admissible  as  sound 

12  assets  in  the  financial  accounts  of  companies,  shall,  with  its  deposits  made 

13  in  accordance  with  the  preceding  section,  constitute  the  assets  of  such 

14  company  for  the  purpose  of  making  its  annual  statements  to  the  com- 

15  missioner.    Such  company  shall  file  with  the  annual  statement  required 
10  by  section  twenty-five  a  statement  of  the  trustees  executed  as  prescribed 

17  in  the  preceding  section,  in  such  form  and  detail  as  the  commissioner 

18  requires,  showing  the  funds  held  by  them. 

1  Section  157.     Foreign  companies  admitted  to    do  business  in  the  Foreign  com- 

2  commonwealth  shall  make  contracts  of  insurance  upon  lives,  property  {"hmSh^esl- 

3  or  interests  therein,  and  annuity  or  pure  endowment  contracts  with  iiS7,Ti'4"?'84. 

4  residents  thereof,  only  by  lawfully  constituted  and  licensed  resident  Jsgs;ti?;|2^ 

5  agents.       R.  l  iis,  §  si.       1907. 570.  §§  89, 122.       1919, 114, 1 3.       2  op.  a.  g.  123. 


2014  INSURANCE.  [Chap.  175. 

kiva1fdat°ed  SECTION  158.     No  policy  of  insurance  and  no  annuity  or  pure  endow-  1 

by  ""J  ment  contract  issued  to  a  resident  of  the  commonwealth  by  an  authorized  2 

§§  i,'7.   '         company  organized  under  the  laws  of  a  foreign  country  shall  be  invaH-  3 

1887, 214,  §  &i'.  dated  by  war  between  such  foreign  country  and  the  United  States.  4 

1894,522,5  84.  R.  L.  118,  §  84.  1919,  114,  §  3. 

1898,637,5  2.  1907,  67G,  §|  89,  122.        Op.  A.  G.  (1917)  37. 

Conditions  of         Section  159.     If  by  the  laws  of   anv  other  state  any  taxes,  fines,     1 

laws  of  other  e  i  •  /  ii-.  i.. 

states.             penalties,  licenses,  tees,  deposits  or  other  obligations  or  prohibitions,  2 

R.  s.'37,  §44.'    additional  to  or  in  excess  of  those  imposed  by  the  laws  of  this  com-  3 

is'se!  252!  1 4-'  monwealth  upon  foreign  companies  and  their  agents,  are  imposed  on  4 

?87o,  39'r  '°'    domestic  companies  and  their  agents  doing  business  in  such  state,  like  5 

1S73!  i4i!  I  n°'  obligations  and  prohibitions  shall  be  imposed  upon  all  companies  of  6 

isii  "u  ^  ^^^'  ^^^^  state  and  their  agents  doing  business  in  this  commonwealth  so  long  7 

§§  85,  iii.        as  such  laws  remain  in  force.     Compliance  with  this  section  may  be  8 

§§  85,  ui.        enforced  in  the  ordinary  course  of  equity  procedure  by  information  9 

§§85.112.        brought  in  the  supreme  judicial  court  by  the  attorney  general  at  the  10 

§§°9o,^i2i,  122.  relation  of  the  commissioner.  1 1 

Sraw'fu/""^  Section  160.     Whoever,  for  a  person  other  than  himself,   acts  or  1 

ism'^'^ui' §'3  ^^^^  ^^  ^'^y  manner  in  the  negotiation,  continuation,  or  renewal  of  a  2 

R-||^'§43.  policy  of  insurance  or  an  annuity  or  pure  endowment  contract  with  a  3 

§  10;  311',  §  17.  foreign  company  not  lawfully  admitted  to  issue  such  policies  or  contracts  4 

§§  36, 40.'  in  this  commonwealth  shall,  except  as  pro\'ided  in  section  one  hundred  5 

§§  «,*SL  and  sixty-eight,  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  6 

?§■  72^77.  more  than  five  hundred  dollars;    but  this  section  shall  not  apply  to  a  7 

p^^s'ng'  '^^^^y  licensed  special  insurance  broker  acting  under  said  section  one  hun-  8 

li  is2^  200.  dred  and  sixty-eight,  nor  to  any  act  of  a  duly  licensed  insurance  broker  9 

§§97,'98.'  in  negotiating,  continuing  or  renewing  policies  of  insurance  on  transpor-  10 

§§  97, 98.'  tation,  inland  na\agation  and  ocean  and  coastwise  marine  risks,  nor  to  1 1 

§§'97, VI'  any  insurance  appertaining  thereto  which  cannot,  to  the  advantage  of  12 

§§°ioG^io'7,i22.  the  insured,  be  placed  in  authorized  companies.    A  person,  other  than  13 

i6oVa^ss'4i3  ^^^^  commissiouer  or  his  deputy,  upon  whose  complaint  a  con\'iction  is  14 

168  Mass.  59B.  J^ad  for  \iolation  of  tliis  section,  shall  be  entitled  to  one  half  of  the  fine  15 

1/3  Mass.  119.  ,.11.  -.r. 

175  Mass.  154.    rccovcrcd  upon  Sentence  tiiereior.  is3U.  s.  ssa.  2  0p.  a.  g.  471.  lb 


LLOYDS    ASSOCIATIONS. 

Lloyds                Section  161.     Associations   of   individuals,    citizens   of   the   United  1 

sssocistions.  ^  ...»• 

||"8.2i8,          States,    whether    organized    within    this    commonwealth    or    elsewhere  2 

p.  s!  119,  §  175.  within  the  United  States,  formed  upon  the  plan  known  as  Lloyds  —  3 

283.  '§  2. '       '  whereby  each  associate  underwTiter  becomes  liable  for  a  proportionate  4 

n^t.  Ill',  I  It',  part  of  the  whole  amount  insured  by  a  policy  —  may  be  authorized  5 

§§°9i.^i22.        to  transact  insurance,   other  than  life,   in   the  commonwealth   in  like  6 

manner  and  upon  the  same  terms  and  conditions  as  companies  of  other  7 

states  of  the  United  States.  8 

agents,  brokers  and  adjusters. 

?847"273°u         Section  162.     Whoever,  for  compensation,  not  being  the  duly  licensed  1 

1856' 252  i  54'  insurance  agent  of  the  company  in  which  any  policy  of  insurance  or  any  2 

i86i',  i7o'.      ■   annuity  or  pure  endo\Mnent  contract  is  effected,  or  an  officer  of  a  domestic  3 

1869'.  93,'     ■    company  acting  under  section  one  hundred  and  sixty-five,  acts  or  aids  4 

1871,297,  §8.     in  any  manner  in  negotiating  policies  of  insurance  or  annuity  or  pure  5 


Chap.  175.1  insueance.  2015 

6  endowment  contracts,  or  placing  risks  or  effecting  insurance,  or  in  nego-  p.  s.  U9, 

7  tiating  the  continuance  or  renewal  of  such  policies  or  contracts  for  a  ile!  hi^.^' 

8  person  other  than  himself,  shall  be  an  insurance  broker.  §§*87,^g3.' 

9  Whoe\er,   for  compensation,   not   being  a   duly  licensed   insurance  ^^^|^^||' 

10  broker  or  an  officer  of  a  domestic  company  acting  under  section  one  j.H^'ff'clg, 

11  hundred  and  sixty-five,  solicits  insurance  on  behalf  of  any  company,  or  loof,  s-ej^ 

12  transmits  for  a  person  other  than  himself  an  application  for  or  a  policy  i9i7',':647§  i. 

13  of  insurance  or  an  annuity  or  pure  endowment  contract  to  or  from  such  J^'^'^^'Si- 

14  company,  or  offers  or  assumes  to  act  in  the  negotiation  of  any  such  policy  los'ML'gs.^Ts. 

15  or  contract,  or  in  the  negotiation  of  its  continuance  or  renewal,  shall  be  }rj  Mass' lis 

16  an  insurance  agent  within  the  intent  of  this  chapter,  and  shall  thereby  J^s  Mass.  ii9. 

17  become  liable  to  all  the  duties,  requirements,  liabilities  and  penalties  to  lOp.  a.  g.  74.' 

9  On      A      f^      9 

18  which  an  agent  of  such  company  is  subject.  233. "    ■    •  • 

19  Whoever,  for  compensation,  not  being  an  attorney  at  law  acting  in  (1918)92. 

20  the  usual  course  of  his  profession,  or  a  trustee  or  agent  of  the  property 

21  insured,  directly  or  indirectly  solicits  from  the  insured  or  his  repre- 

22  sentative  the  settlement  of  a  loss  under  a  fire  insurance  policy  shall  be 

23  an  adjuster  of  fire  losses. 

1  Section  163.     Upon   wTitten   notice   by  a  company   authorized   to  Licenses  of 

2  transact  business  in  the  commonwealth  of  its  appointment  of  a  person  ilse' 252,  §  51. 

3  to  act  as  its  agent  herein,  the  commissioner  shall,  if  he  is  satisfied  that  ^807,  leVf/l'. 

4  the  appointee  is  a  suitable  person  of  full  age  and  intends  to  hold  himself  ^g|-;  ^^f^  §,209. 

5  out  and  carry  on  business  in  good  faith  as  an  insurance  agent,  issue  to  iss*.  |22,  §  91. 

6  him  a  license  which  shall  state  in  substance  that  the  company  is  author-  1S97;  64! 

7  ized  to  do  business  in  the  commonwealth,  and  that  the  person  named  §§  87, 88." 

8  therein  is  the  constituted  agent  of  the  company  in  the  commonwealth  }|o7,'  sfe!      " 

9  for  the  transaction  of  such  business  as  it  is  authorized  to  transact  therein,  ioos^to.  ^^^' 

10  Such  notice  shall  be  upon  a  form  furnished  by  the  commissioner,  and  J^JJ'  ^^s.  1 1. 

11  shall  be  accompanied  by  a  statement  executed  on  oath  by  the  appointee  1917!  m!  §  2. 

12  which  shall  give  his  name,  age,  residence,  present  occupation,  his  occu-  I9i9,'  46! 

13  pation  for  the  fi\'e  years  nex-t  preceding  the  date  of  the  notice,  and  such       p-    •    ■ 

14  other  information  as  the  commissioner  may  require  upon  a  form  fiu"- 

15  nished  by  him.     The  commissioner  may,  except  as  provided  in  section 

16  five,  at  any  time,  for  cause  shown  and  after  a  hearing,  revoke  the  license 

17  or  suspend  it  for  a  period  not  exceeding  the  unex-pired  term  thereof, 
IS  and  may,  for  cause  shown  and  after  a  hearing,  revoke  the  license  while 

19  so  suspended,  and  shall  notify  both  the  company  and  the  agent  in  writ- 

20  ing  of  such  revocation  or  suspension.     A  license  issued  hereunder  shall 

21  expire  on  the  thirtieth  day  of  June  next  after  its  issue,  unless  sooner  re- 

22  voked  or  suspended  as  aforesaid,  or  unless  the  company,  by  a  written 

23  notice  filed  with  the  commissioner,  cancels  the  authority  of  the  agent  to 

24  act  for  it.     Such  license  may,  in  the  discretion  of  the  commissioner,  be 

25  renewed  for  any  succeeding  year  by  a  renewal  certificate  without  requir- 

26  ing  anew  the  detailed  information  hereinbefore  specified.     Every  com- 

27  pany  shall  be  bound  by  the  acts  of  the  person  named  in  the  license 

28  within  the  scope  of  his  apparent  authority  as  its  acknowledged  agent 

29  while  such  license  remains  in  force.     Every  foreign  company  shall  pay 

30  for  each  such  license  or  renewal  thereof  a  fee  of  two  dollars.     WhocAcr, 

31  not  being  a  duly  licensed  insiu-ance  broker  or  an  officer  of  a  domestic 

32  company  acting  under  section  one  hundred  and  sixty-five,  acts  as  an  in- 

33  surance  agent  as  defined  in  the  preceding  section,  without  siich  license  or 

34  diu-ing  a  suspension  of  his  license,  shall  be  punished  by  a  fine  of  not  less 

35  than  twentv  nor  more  than  five  hundred  dollars. 


2016  rNstJE.\NCE.  [Chap.  175. 

necl3sar?°for         SECTION  164.     A  colIcctor  of  premiums  who  does  not  solicit  appli-  1 

igi-^s'io  cations  for  or  the  renewal  or  continuance  of  insurance  contracts,  or  2 

1919, 85;  86.      ^ct  OF  aid  iu  negotiating  such  contracts  or  the  continuance  or  renewal  3 

thereof,  may  carry  on  such  business  without  a  license  therefor,  proAided  4 

that  the  collection  fee  does  not  exceed  five  per  cent  of  any  amount  5 

collected.  6 

omaiToY"^         Section  165.     An  officer  of  a  domestic  company  may  without  a  li-     1 
domestic  cense  act  for  such  company  in  the  negotiation  of  anv  contract  of  insurance    2 

company.  ,  -^       *  ^  ,  .    ,   '.  i         i»    ii  in 

1S87, 214.  §  ss.  or  an  annuity  or  pure  endownnent  contract,  which  it  may  lawiully  make,     6 
R.  l!  lis]  §  so!  or  in  the  negotiation  of  the  continuance  or  renewal  of  such  contracts.  4 

1907,  57G,  §§  94,  122.  1919,  35. 

brokerr  °^  SECTION  166.     The  Commissioner  may,  upon  the  payment  of  a  fee  of     1 

ssf-4  ^"  ten  dollars,  issue  to  any  suitable  person  of  full  age  resident  in  the  com-    2 

1873, 164.         monwealth,  or  resident  in  any  other  state  granting  brokers'  licenses  or    3 

§§  187,  V8S.       like  privileges  to  residents  of  the  commonwealth,  a  license  to  act  as  an     4 

§§  M,^9s.'         insurance  broker  to  negotiate,  continue  or  renew  contracts  of  insurance    5 

l^g'^^gs.'         or  annuity  or  pure  endowniient  contracts,  or  to  place  risks,  or  effect  in-    6 

l^2^'i59  surance  with  any  qualified  domestic  company  or  its  agents,  or  with  the    7 

1896, 448.         lawfully  constituted  and  licensed  resident  agents  in  this  commonwealth    8 

§§■  90, 98."         of  any  foreign  company  duly  admitted  to  issue  such  policies  or  contracts     9 

§§95,107,122.  therein  upon  the  following  conditions:    The  applicant  for  the  license  10 

1913! 474]  Is!    shall  file  with  the  commissioner  a  written  application  upon  a  form  pro-  11 

2^0p'.  Y.'g.       ^ided  by  the  commissioner,  which  shall  be  executed  on  oath  by  the  12 

299,471.  applicant  and  kept  on  file  by  the  commissioner.    The  application  shall  13 

state  the  name,  age,  residence  and  occupation  of  the  applicant  at  the  14 

time  of  making  the  application,  his  occupation  for  the  five  years  next  15 

preceding  the  date  of  the  application,  that  the  applicant  intends  to  16 

hold  himself  out  and  carry  on  business  in  good  faith  as  an  insurance  17 

broker,  and  such  other  information  as  the  commissioner  may  require.  18 

The  application  shall  also  contain  a  statement  as  to  the  trustworthiness  19 

and  competency  of  the  applicant,  signed  by  at  least  three  reputable  20 

citizens  of  this  commonwealth.     If  the  commissioner  is  satisfied  that  21 

the  applicant  is  trustworthy  and  competent  and  intends  to  hold  himself  22 

out  and  carry  on  business  in  good  faith  as  an  insurance  broker,  he  shall  23 

issue  the  license,  which  shall  expire  in  one  year  from  its  date,  unless  24 

sooner  revoked  or  suspended  as  provided  herein.    The  license  may,  in  25 

the  discretion  of  the  commissioner,  be  renewed,  upon  paj-ment  of  the  26 

fee  of  ten  dollars,  for  any  succeeding  year  without  requiring  anew  the  27 

detailed  information  hereinbefore  specified.    The  commissioner  may  at  28 

any  time,  for  cause  shown  and  after  a  hearing,  revoke  the  license  or  29 

suspend  it  for  a  period  not  exceeding  the  unexpired  term  thereof,  and  30 

may,  for  cause  shown  and  after  a  hearing,  revoke  the  license  while  so  31 

suspended,  and  shall  notify  the  licensee  in  writing  of  such  revocation  or  32 

suspension,  and  may  publish  a  notice  of  such  revocation  or  suspension  33 

in  such  manner  as  he  may  deem  necessary  for  the  protection  of  the  34 

public.    No  fee  for  a  license  issued  hereunder  shall  be  required  of  any  35 

soldier,  sailor  or  marine  resident  in  this  commonwealth  who  has  served  36 

in  the  army  or  na\y  of  the  United  States  in  time  of  war  or  insurrection  37 

and  received  an  honorable  discharge  therefrom  or  release  from  active  38 

duty  therein,  if  he  presents  to  the  commissioner  satisfactory  e\idence  39 

of  his  identity.    Whoever,  not  being  a  duly  licensed  insurance  agent  of  40 

the  company  in  which  any  policy  of  insurance  or  any  annuity  or  pure  41 


Ch.\p.  175.]  msuR-VNCE.  2017 

42  endowment  contract  is  effected  or  an  officer  of  a  domestic  company 

43  acting  under  section  one  hundred  and  sixty-fiAe,  acts  as  an  insurance 

44  broker  as  defined  in  section  one  hundred  and  sixty-two,  without  such 

45  Hcense  or  during  a  suspension  of  his  hcense,  shall  be  punished  by  a  fine 

46  of  not  less  than  twenty  nor  more  than  five  hundred  dollars. 

1  Sectiox  167.     The  commissioner  may,  in  addition  to  issuing  brokers'  Limited 

2  licenses  gi^^ng  full  authoritj-  to  the  licensee  as  set  forth  in  the  preceding  of  b°rXrs. 

3  section,  issue  insurance  brokers'  licenses  which  limit  the  authority  of  the  ^^^^'  ^*'- 

4  licensee  to  the  extent  agreed  upon  ^\^th  him  and  set  forth  in  the  license, 

5  but  in  other  respects  the  granting  of  such  licenses  and  the  brokers  so 

6  licensed  shall  be  governed  by  the  laws  relating  to  insurance  brokers. 

1  Section  168.    The  commissioner  may,  upon  the  pajinent  of  a  fee  of  fg^^^^  brokers' 

2  twenty  dollars,  issue  to  any  suitable  person  of  full  age  resident  in  the  suranceby 

3  commonwealth,  a  license  to  act  as  a  special  insurance  broker  to  negotiate,  companie'J^^ 

4  continue  or  renew  contracts  of  fire,  bombardment,  steam  boiler  or  fly-  isi)?!  214; 

5  wheel  insurance  on  property  in  this  commonwealth  in  foreign  companies  fsM^'uy;  522, 

6  not  authorized  to  transact  such  business  therein,  upon  the  following  con-  i|/8^'2^8o  §  2 

7  ditions:  The  applicant  for  the  license  shall  file  with  the  commissioner  a  i3°T^'??i 

1-1  •  T  •  '111  •  1  1  1  1         •  .  K.  1/.   11J>, 

8  ■WTitten  apphcation  as  prescribed  by  section  one  hundred  and  sixty-six,  §§s3, 99. 

9  which  shall  be  executed  on  oath  by  the  applicant  and  kept  on  file  by  the  §"§  ss,  ios,  122. 

10  commissioner.     If  the  commissioner  is  satisfied  that  the  applicant  is  1917,' 132.' 

11  trustworthy  and  competent,  he  shall  issue  the  license,  subject  to  sus- 

12  pension  or  revocation  at  the  pleasure  of  the  commissioner,  wliich  shall 

13  expire  in  one  year  from  its  date,  unless  sooner  suspended  or  revoked 

14  as  aforesaid.    The  license  may,  in  the  discretion  of  the  commissioner,  be 

15  renewed  for  each  succeeding  year,  upon  the  pa^'ment  of  a  fee  of  twenty 

16  dollars,  without  requiring  anew  the  detailed  information  specified  by 

17  section  one  hundred  and  sixty-six.    Before  the  person  named  in  sucli 

18  license  shall  procure  any  insurance  in  such  companies  on  any  such 

19  property,  he  shall  in  e^•ery  case  execute,  and  witliin  fi\'e  days  thereafter 

20  file  with  the  commissioner,  an  affidavit,  which  shall  have  force  and 

21  efl'ect  for  one  year  only  from  the  date  of  said  affida%it,  that  he  is  unable 

22  to  procure,  in  companies  admitted  to  do  business  in  the  commonwealth, 

23  tlie  amount  of  insurance  necessary  to  protect  said  property,  and  shall 

24  procure  insurance  under  such  license  only  after  he  has  procured  in- 

25  surance  in  companies  admitted  to  do  business  as  aforesaid  to  the  full 

26  amount  wliich  said  companies  are  M-illing  to  WTite  on  said  property; 

27  but  such  licensed  person  shall  not  be  required  to  file  sucli  affida\it  if  one 

28  relati\e  to  the  same  property  has  been  filed  ■within  the  preceding  t\\elve 

29  months  by  any  broker  licensed  under  tliis  section,  nor  to  offer  any  por- 

30  tion  of  such  insurance  to  any  company  not  possessed  of  net  cash  assets 

31  of  at  least  twenty-five  thousand  dollars,  nor  to  one  which  has  within 

32  the  preceding  tweh-e  months  been  in  an  impaired  condition.     Each 

33  person  so  licensed  shall  keep  a  separate  account  of  the  business  done 

34  under  the  license,  a  certified  copy  of  wliich  account  he  shall  forth\vith 

35  file  with  the  commissioner,  showng  the  exact  amount  of  such  insurance 

36  placed  for  any  person,  the  gross  premium  charged  thereon,  the  com- 

37  panics  in  wliich  the  same  is  placed,  the  date  of  the  policies  and  the 

38  term  thereof,  and  also  a  report  in  the  same  detail  of  all  such  policies 

39  cancelled,  with  the  gross  return  premiums  thereon,  and  before  recei\ing 

40  such  license  shall  execute  and  deli^•er  to  the  state  treasurer  a  bond  in 


2018  msuKANCE.  [Ch.^.p.  175. 

the  penal  sum  of  t^vo  thousand  dollars,  \\'ith  such  sureties  as  he  shall  41 
appro\-e,  conditioned  that  the  licensee  will  faitlifully  comply  ^^^th  all  the  43 
requirements  of  tlus  section,  and  Mill  annually,  in  January,  file  with  43 
the  state  treasurer  a  sworn  statement  of  the  gross  premiums  charged  44 
for  insurance  procured  or  placed  and  the  gross  return  premiums  on  such  45 
insurance  cancelled  under  such  license  during  the  year  ending  on  Decem-  46 
ber  thirty-first  last  preceding,  and  at  the  time  of  filing  such  statement  47 
■uill  pay  to  the  commonwealth  an  amount  equal  to  four  per  cent  of  such  48 
gross  premiums,  less  such  return  premiums  so  reported.  49 

A  person  licensed  under  this  section  who  negotiates,  continues  or  renews  50 
any  such  contract  of  insurance  in  any  imauthorized  foreign  compam^,  51 
and  who  neglects  to  make  and  file  the  affida^■it  and  statements  required  52 
by  this  section,  or  who  -n-ilfully  makes  a  false  affida^^t  or  statement,  or  53 
who  negotiates,  continues  or  renews  any  such  contract  of  insurance  after  54 
the  revocation  or  during  the  suspension  of  his  license,  shall  forfeit  his  55 
license  and  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  more  56 
than  five  hmidred  dollars  or  by  imprisonment  for  not  more  than  one  57 
year,  or  both.  58 

Effect  of  Section  169.     An  insurance  agent  or  broker  acting  for  a  person  other  1 

agent  or  than  himself  in  negotiating,  continuing  or  rene%\'ing  any  policy  of  in-  2 

i878"i66.  §  1.    surance  or  any  annuity  or  pure  endo'mnent  contract  shall,  for  the  pur-  3 

islr.'^SH.^^so.'  pose  of  recei\-ing  any  premium  therefor,  be  held  to  be  the  agent  of  the  4 

R/tliii^in!'  company,  whatever  conditions  or  stipulations  may  be  inserted  in  the  5 

ifde,  "22         policj'  or  contract.  i9i9, 19.  20s  Mass.  214.  6 

pretence  by  SECTION  170.     An  insurauce  agent  or  broker  who  kno\\'ingly  procures  1 

ill"  376  ™^'"^'  ^y  fraudulent  representations  paj-ment  or  the  obligation  for  the  pay-  2 

1854',  453, 1 39.  ment  of  any  premium  on  any  policy  of  insurance  or  any  annuity  or  3 

G.  s."  58r'§  74.  ■  pure  endowment  contract  shall  be  punished  by  a  fine  of  not  less  than  4 

1SS7, 214,  §  90.'  one  hundred  nor  more  than  one  thousand  dollars  or  by  imprisonment  5 

iLL.'nf,'§Vi?' for  not  more  than  one  year.  i907, 576,  §§  96, 122.  1919,19.  6 

megaf*^""  Section  171.     An  insurance  agent  shall  be  personally  liable  on  all     1 

iIm'^Th  52     contracts  of  insurance  unlawfully  made  by  or  through  him,  directly  or    2 

i87s;  36,  '§  4.  ■     indirectlv,  for  or  in  behalf  of  anv  companv  not  authorized  to  do  business     3 

p.  s.  119.  §  210.  .    ^,        •  , , ,  ^  f     . 

1887,  214,  §  89.  in  the  commonwealth.  4 

1894,  522,  §  89.      R.  L.  118,  §92.      1907,  576,  §§  97,  122.      160  Mass.  413. 

Licenses  of  SECTION  172.     The  Commissioner  may,  upon  the  paj-ment  of  a  fee  of     1 

fire  losses.  two  dollars,  issue  to  any  suitable  person  of  full  age  a  license  to  act  as  an  2 
1919!  38. "  adjuster  of  fire  losses  upon  the  followng  conditions :  The  appUcant  for  3 
the  license  shall  file  T;\'ith  the  commissioner  a  written  application  as  4 
prescribed  by  section  one  hundred  and  sixty-six,  wliich  shall  be  executed  5 
on  oath  by  the  appUcant,  and  kept  on  file  by  the  commissioner.  If  the  6 
commissioner  is  satisfied  that  the  applicant  is  trustworthy  and  compe-  7 
tent,  he  shall  issue  the  license,  which  shall  expire  in  one  year  from  its  date,  8 
unless  sooner  revoked  or  suspended  as  proAided  herein.  The  license  may,  9 
in  the  discretion  of  the  commissioner  and  upon  the  pa\Tacnt  of  a  fee  of  10 
two  dollars,  be  renewed  for  any  succeeding  year  witliout  requiring  anew  11 
the  detailed  information  specified  by  section  one  hmidred  and  sixty-six.  12 
The  commissioner  may  at  any  time,  for  cause  shown  and  after  a  hearing,  13 
re^•oke  the  hcense  or  suspend  it  for  a  period  not  exceeding  the  unexpired  14 


Chap.  175.]  insur.\nce.  2019 

1.5  term  thereof,  and  may,  for  cause  shown  and  after  a  hearing,  revoke  the 

16  license  while  so  suspended,  and  shall  notifj'  the  licensee  in  writing  of  such 

17  revocation  or  suspension.    Whoever  acts  as  an  adjuster  of  fire  losses,  as 
IS  defined  in  section  one  hundred  and  sixty-two,  without  such  license  or 

19  during  a  susjjension  of  his  license,  shall  be  punished  by  a  fine  of  not  more 

20  than  two  hundred  dollars  or  by  imprisonment  for  not  more  than  six 

21  months. 

1  Section  17.3.    The  licenses  described  in  sections  one  hundred  and  sixty- P-irtnership 

2  three,  one  hundred  and  sixty-six,  one  hiuidred  and  sixty-seven,  one  hun-  1920^  317,  §  1. 

3  dred  and  sixty-eight  and  one  hundred  and  se\'enty-two  may  be  issued  to 

4  partnerships  on  the  conditions  specified  in  and  subject  to  said  sections, 

5  except  as  otherwise  pro^■ided  herein.    Each  member  of  the  partnership 

6  shall  file  the  statement  or  application  required  by  law,  including  a  written 

7  request  that  the  license  be  issued  in  the  partnership  name.    Together 

8  with  said  statements  or  applications,  there  shall  be  filed  a  duplicate 

9  original  of  the  WTitten  partnership  agreement  signed  by  all  the  partners. 

10  The  Hcense  shall  be  issued  in  the  partnership  name,  and  may  be  revoked 

11  or  suspended  as  to  one  or  all  members  of  the  partnership.     Minors  who 

12  are  parties  to  the  written  articles  of  partnership  may  be  included  in  the 
1.3  partnersliip  hcense,  proAided  that  there  is  one  adult  member  of  the  firm. 

14  If  the  partnersliip  is  terminated  prior  to  the  ex]3iration  of  the  license,  the 

15  partners  shall  forth\nth  give  notice  thereof  to  the  commissioner,  who 

16  shall  thereupon  without  a  hearing  revoke  the  license.    Each  partner  shall 

17  be  personally  hable  to  the  penalties  of  the  insurance  laws  for  any  viola- 

18  tion  thereof,  although  the  act  of  \-ioIation  is  done  in  the  name  of  or  in 

19  behalf  of  the  partnership.     WTioever,  being  licensed  as  a  partner  under 

20  this  section,  fails  to  give  notice  as  required  herein  of  the  termination  of 

21  the  partnership,  or  after  the  partnersliip  is  terminated  acts  under  such 

22  hcense,  shall  be  punished  by  a  fine  of  not  less  than  twenty  nor  more  than 

23  five  hundred  dollars. 

1  Section  174.     The  licenses  described  in  sections  one  hundred  and  jJ^J'J'nse"*'"" 

2  sixty-three,  one  hundred  and  sixty-six,  one  hundred  and  sixty-seven,  J^JS'  ^f 

3  one  hundred  and  sixty-eight  and  one  hundred  and  seventy-two  may  be  imo!  317, 

4  issued  to  any  corporation  which  is  incorporated  exclusi\ely  for  the  pur- 

5  pose  of  acting  as  an  insurance  agent,  broker  or  adjuster  of  fire  losses  and 

6  which,  in  case  of  a  corporation  incorporated  to  act  as  an  insurance  agent 

7  or  broker,  by  its  by-laws  and  articles  of  organization  hmits  the  hokhng 

8  and  ownersliip  of  its  capital  stock  to  insurance  agents  and  brokers  or 

9  persons  employed  in  good  faith  by  such  agents  or  brokers.    Such  hcense, 

10  together  with  the  corporation  and  officers  of  the  corporation  named  in 

11  the  Hcense,  shall  be  subject  to  said  sections,  except  as  otherwise  pro\'ided 

12  herein.    Each  license  shall  specify  the  officers,  not  exceeding  fi\e,  who 

13  may  act  thereunder  in  the  name  and  on  behalf  of  the  corporation. 

14  Minors  may  be  designated  as  such  officers  in  the  license.     Each  officer 

15  shall  file  the  statement  or  application  required  by  law.     A  certified  copy 

16  of  the  by-laws,  articles  of  organization  and  cliarter  shall  be  filed  with 

17  the  said  statements  or  apphcations.    The  license  may  be  revoked  or 

18  suspended  as  to  the  corporation  or  as  to  any  officer  named  therein.    No 

19  foreign  corporation  shall  be  hcensed  as  an  insurance  agent  of  a  foreign 

20  company  under  said  section  one  hundred  and  sixty-three  or  as  a  special 

21  insurance  broker  under  said  section  one  himdred  and  sixty-eight.     The 


2020 


ESrSUE.\XCE. 


[Chap.  1,5. 


commissioner  may  at  any  time  require  such  information  as  he  deems  22 
necessary  in  respect  to  the  corporation,  its  officers  or  affairs,  and  may  23 
make  such  examination  of  its  books  and  affairs  as  he  deems  necessary.  24 
The  clerk  or  other  corresponding  officer  shall  file  ■with  the  commissioner,  25 
wathin  thirty  days  after  the  adoption  thereof,  certified  copies  of  all  26 
amendments  to  the  by-laws  or  charter,  and  shall  at  once  notify  the  27 
commissioner  in  AM'iting  in  case  of  the  dissolution  or  revocation  of  the  28 
charter  of  the  corporation.  Upon  receipt  of  such  notice,  the  commis-  29 
sioner  shall  forthwith  revoke  its  Hcense  without  a  hearing.  E^-ery  officer  30 
specified  in  the  license  shall  be  personally  hable  to  the  penalties  of  the  31 
insurance  laws  for  any  \iolation  thereof,  although  the  act  of  Aiolation  is  32 
done  in  the  name  and  in  behalf  of  the  corporation.  The  corporation  33 
shall  be  hable  for  any  such  \iolation,  the  responsibility  for  which  can-  34 
not  be  placed  on  any  indi^•idual  officer.  35 

Whoever,  being  clerk  or  corresponding  officer  of  a  corporation  licensed  36 
under  this  section,  fails  to  file  with  the  commissioner  copies  of  all  amend-  37 
ments  to  the  by-laws  or  charter  of  such  corporation  as  provided  herein,  38 
or  fails  to  notify  the  commissioner  of  the  dissolution  or  revocation  of  the  39 
charter  of  the  corporation,  or  whoever,  being  specified  in  the  hcense  of  40 
such  corporation  as  an  officer,  acts  under  said  hcense  after  the  dissolu-  41 
tion  or  the  re\-ocation  of  the  charter  of  such  corporation,  shall  be  punished  42 
b^-  a  fine  of  not  less  than  t\\"ent>-  nor  more  than  five  hundred  dollars.  43 


Penalty  for 
pretending  to 
be  a  broker, 
etc. 
1919,  26. 


Section  175.    ^Mioever,   not    being    duly  licensed  as  an  insurance  1 

agent  or  broker  or  as  an  adjuster  of  fire  losses,  represents  or  holds  him-  2 

self  out  to  the  public  as  being  such  an  agent,  broker  or  adjuster,  or  as  3 

being  engaged  in  the  insurance  business,  by  means  of  ad\ertisements,  4 

cards,  circulars,  letterheads,  signs  or  other  methods,  or  whoever,  being  5 

duly  licensed  as  such  agent,  broker  or  adjuster,  ad\ertises  as  aforesaid  6 

or  carries  on  such  business  in  any  other  name  than  that  stated  in  liis  7 

license,  shall  be  pimished  by  a  fine  of  not  less  than  ten  nor  more  than  8 

one  hundred  dollars.  9 


Section  176.  An  insurance  agent  or  broker  who  acts  in  negotiating 
or  renewing  or  continuing  a  pohcy  of  insurance  or  an  aimuity  or  pure 
endo-mnent  contract  issued  by  a  company  lawi'ully  doing  business  in  the 
commonwealth,  and  who  receives  any  money  or  substitute  for  money 
as  a  premiiun  for  such  a  pohcy  or  contract  from  the  insured  or  holder 
thereof,  shall  be  deemed  to  hold  such  premium  in  trust  for  the  company. 
If  he  fails  to  pay  the  same  over  to  the  company  after  wTitten  demand 
2  6p!.\.G.299.  made  iipon  liim  therefor,  less  liis  commission  and  any  deductions  to 
w  liich,  by  the  written  consent  of  the  company,  he  may  be  entitled,  such 
failure  shall  be  prima  facie  e\idence  that  he  has  used  or  apphed  the  said  10 
premium  for  a  purpose  other  than  pacing  the  same  over  to  the  company,  1 1 
and  upon  comiction  thereof  he  shall  be  guilty  of  larceny.  12 


Larceny  of 
premium  by 
agent  or 
broker. 
1S78.  166,  § 
P.  S.  203,  §  4 
1894.  522, 
§  111. 
R.  L.  118. 
§  112. 
1907,  576, 
§§  121,  122. 
1910,  426 


Compensation 
to  unlicensed 
persons 
forbidden. 
1919,87. 


Section   177.     No    company   and    no    officer,    agent    or    employee  1 

thereof,  and  no  duly  licensed  insurance  broker,  shall,  directly  or  in-  2 

directly,  pay  or  allow,  or  agree  to  pay  or  allow,  compensation  or  any-  3 

tiling  of  value  to  any  person,  excepting  an  officer  of  a  domestic  company  4 

acting  luider  section  one  himdred  and  sixty-fiAc,  for  placing  or  negotiat-  5 

ing  a  pohcy  of  insurance  on  hA"es,  property  or  interests  in  the  common-  6 

wealth,  or  any  annuity  or  pure  endowment  contract  with  a  resident  7 

thereof,  or  negotiating  the  continuance  or  renewal  thereof,  or  for  attempt-  8 


Chap.  175.]  insuk.\nce.  2021 

9  ing  so  to  do,  who,  at  the  date  thereof,  is  not  duly  licensed  as  an  insurance 

10  agent  of  such  company  or  as  an  insurance  broker;   pro\'ided,  that  tliis 

11  section  shall  not  affect  sections  one  hundred  and  eighty-two  to  one  hun- 

12  dred  and  eight,^'-four,  inclusive.    Whoe^-er  knowngly  ^iolates  any  pro- 

13  Aision  of  this  section  shall  be  punished  by  a  fine  of  not  less  than  twenty 

14  nor  more  than  two  hundred  dollars. 

RECEIVERS. 

1  Section  178.     The  compensation  of  receivers  of  insolvent  companies  Compensation 

2  shall  be  fixed  by  the  supreme  judicial  court.    All  accounts  rendered  to  oPrewWer"'^ 

3  the  court  by  such  receivers  shall  be  referred  to  the  commissioner.  sf's*'/"*' 

4  Such  receivers,  at  the  expiration  of  one  year  after  final  settlement  J|7^'|3^v\^- 

5  ordered  by  the  court,  shall  report  to  the  court  the  names  and  residences,  isso'.  25' 

6  if  known,  of  the  persons  entitled  to  money  or  di\idends  from  the  estate  §§  ibs,  109, 

7  of  such  companies  remaining  in  their  hands  uncalled  for,  with  the  Jsls,  3.3,  §  5; 

8  amount  due  to  each.    The  court  shall  thereupon  order  a  notice  to  be  1886,^300,^2. 

9  given  by  the  receivers  and,  upon  the  expiration  of  one  year  after  the  j[|^]'  ^||'  1 1| 

10  time  of  giving  such  notice,  the  receivers  shall  in  like  manner  report  R  Li's.S  95. 

1 1  the  amounts  still  uncalled  for.     Unless  cause  shall  appear  for  decreeing  §§  100, 122. 

12  otherwise,  such  amounts  shall  then  be  ordered  to  be  paid  to  the  com- 

13  mon\Aealth,  and  schedules  signed  by  the  receivers  shall  at  the  same 

14  time  be  deposited  with  the  state  treasurer  and  state  auditor,  setting 

15  forth  the  decree  of  the  court  and  the  names  and  residences,  so  far  as 
IG  known,  of  the  persons  or  parties  entitled  thereto,  alphabetically  ar- 
17  ranged,  and  the  amount  due  to  each.  The  state  auditor  shall  forthwith 
IS  cause  notice  of  such  deposit  to  be  mailed  to  such  persons,  and,  upon 

19  certification  by  him  that  a  claimant  is  entitled  to  any  part  of  said 

20  deposit,  it  shall  be  paid  in  the  same  manner  as  other  claims  against 

21  the  commonwealth.     Upon  the  payment  to  the  commonwealth  of  such 

22  unclaimed  money  or  dividends  by  the  receiver  and  the  allowance  by 

23  the  court  of  his  final  account,  or  at  the  expiration  of  one  year  after  the 

24  final  settlement  ordered  by  the  court,  if  he  then  has  in  his  hands  no 

25  unclaimed  money  or  dividends,  he  shall  deposit  with  the  commissioner 

26  all  books  and  papers  of  such  company,  including  those  relative  to  his 

27  receivership,  which  shall  be  preserved  by  the  commissioner. 

1  Section  179.     In  any  proceeding  in  which  application  is  made  by  commissioner 

2  or  at  the  relation  of  the  commissioner  for  the  appointment,  either  tempo-  eto'','may  be 

3  rary  or  permanent,  of  a  receiver  of  a  company,  the  commissioner  or  feeeh-^!"' 

4  one  of  his  deputies  or  assistants  may,  in  the  discretion  of  the  court,  i9iS'^2. 

5  be  appointed  receiver,  and  when  so  appointed  shall  serve  without  com- 

6  pensation  other  than  his  official  salary.     When  authorized  in  advance 

7  by  the  court,  counsel  may  be  employed,  and  paid,  from  the  assets  of 

8  the  company,  such  sums  as  the  court  may  fix.     Expenses,  other  than 

9  those  incurred  for  services  in  the  settlement  of  the  affairs  of  the  com- 
10  pany  shall,  subject  to  the  approval  of  the  court,  be  paid  from  its  assets. 

1  Section  ISO.     The  commissioner,  his  deputy  or  examiner  shall  annu-  Examinations 

2  ally  or  oftener  examine  the  accounts  and  transactions  of  all  receivers  of?ece°ivera. 

3  of  insolvent  companies;    and  shall  also  carefully  examine  all  accounts  Ij^'s^"*' 

4  of  such  receivers  referred  to  him  under  section  one  hundred  and  seventy-  W^-P- 

5  eight  and  make  report  thereof  to  the  court.  P-  s.  119.  §§  i69, 170. 

1887,  214,  §  13.  1894,  622.  §  13.  1898,53.         R.  L.  118,  §  13.  1907.  576.  §§  13,  122. 


2022 


IXSUR-VXCE. 


[Ch-vp.  175. 


p*s^'nV/i7i  ^o^  ^^^  above  purposes  he,  his  deputy  or  examiner  shall  ha\'e  free  G 
access  to  the  official  books  and  papers  of  such  receivers  relative  to  their  7 
transactions,  and  may  examine  such  receivers  on  oath  as  to  all  matters  8 
connected  therewith.  9 

IS?!'  83^5  4^'        I^  i'^  ^^^  opinion  a  receiver  has  violated  his  duty  in  office,  or  further  10 
p.  s.'n9,'§i72.  proceedings  by  receivers  to  collect  an  assessment  will  not  offer  sub-  11 
stantial  relief  to  creditors,  the  commissioner  shall  certify  the  facts  to  12 
the  court.  13 


Misrepre- 
sentations 
to  insured 
prohibited. 
1907,  576, 
1909,  467. 
1913,  474, 
§§1,2. 


§  74. 


MISREPRESENTATIONS   AND   REBATES. 


Section  181.  No  company,  no  officer  or  agent  thereof  and  no  in- 
surance broker  shall  make,  issue,  circulate  or  use,  or  cause  or  permit  to 
be  made,  issued,  circulated  or  used,  any  WTitten  or  oral  statement  mis- 
representing the  terms  of  any  policy  of  insurance  or  any  annuity  or  pure 
endowment  contract  issued  or  to  be  issued  by  any  company,  or  the  bene- 
fits or  privileges  promised  thereunder.  No  such  company,  officer,  agent 
or  broker  shall  make  any  written  or  oral  statement  misrepresenting  the 
terms,  pri^^leges  or  benefits  of  any  policy  of  insurance  or  any  annuity 
or  pure  endo^Tiient  contract  to  any  person  insured  under  such  policy  or 
holding  such  contract  in  any  company,  in  order  to  induce,  or  which  would 
tend  to  induce,  any  such  person  to  lapse,  forfeit  or  surrender  such  policy  1 1 
or  contract.  Violation  of  tJiis  section  shall  be  punished  by  a  fine  of  not  12 
more  than  one  hundred  dollars.  13 


1 

2 

3 
4 
5 
6 

7 

8 

9 

10 


Rebates,  etc., 
forbidden. 

1887,  214,  §  68. 
1S94,  522,  I  68. 
R.L.  lis,  §6S. 

1907,  576, 
§§  69,  122. 

1908,  511,  §  1. 
1912,401,  §  1. 
1920,  147  §  1 

2  0p.  A.  G.  167. 

3  0p.  A.G.47. 

4  Op.  A.  G.  327, 
503. 

Op.  AG. 
Ca919)  43,  88. 
Op.  A.  G 
(1920)  132, 
185. 


Section  182.  No  company,  no  officer  or  agent  thereof  and  no  in-  1 
surance  broker  shall  pay  or  allow,  or  offer  to  pay  or  allow,  in  connection  2 
with  placing  or  negotiating  any  policy  of  insurance  or  any  annuity  or  3 
pure  endowment  contract  or  the  continuance  or  renewal  thereof,  any  4 
valuable  consideration  or  inducement  not  specified  in  the  policy  or  con-  5 
tract,  or  any  special  favor  or  advantage  in  the  di\"idends  or  other  benefits  6 
to  accrue  thereon;  or  shall  gWe,  sell  or  purchase,  or  offer  to  give,  sell  or  7 
purchase,  anj-tliing  of  value  whatsoever  not  specified  in  the  policy;  or  8 
shall  give,  sell,  negotiate,  deliver,  issue,  or  authorize  to  issue  or  offer  to  9 
give,  sell,  negotiate,  deliver,  issue,  or  authorize  to  issue  any  policy  of  10 
workmen's  compensation  insurance  at  a  rate  less  than  that  approved  by  11 
the  commissioner.  No  such  company,  officer,  agent  or  broker  shall  at  12 
any  time  pay  or  allow,  or  offer  to  pay  or  allow,  any  rebate  of  any  premium  13 
paid  or  payable  on  any  policy  of  insurance  or  any  annuity  or  pure  endow-  14 
ment  contract.  15 


Acceptance  of 
such  rebates, 
etc.,  forbidden. 

1907,  576,  §  69. 

1908,  511,  I  2. 
1912,  401,  §  2. 
1920,  147,  §  2. 


Section  183.  No  person  shall  receive  or  accept  from  any  company  1 
or  officer  or  agent  thereof,  or  any  insurance  broker,  or  any  other  person,  2 
any  such  rebate  of  premium  paid  or  payable  on  the  policy  or  contract,  or  3 
any  special  iaxor  or  advantage  in  the  di\idends  or  other  benefits  to  accrue  4 
thereon,  or  any  valuable  consideration  or  inducement  not  specified  in  5 
the  policy  or  contract  or  any  policy  of  workmen's  compensation  insurance  6 
at  a  rate  less  than  that  approved  by  the  commissioner.  No  person  shall  7 
be  excused  from  testifying,  or  from  producing  any  books,  papers,  con-  S 
tracts,  agreements  or  documents  at  the  trial  of  any  other  person  charged  9 
■with  \'iolating  any  pro\-ision  of  this  and  the  preceding  section,  on  the  10 
ground  that  such  testimony  or  e\'idence  may  tend  to  incriminate  himself;  11 
but  no  person  shall  be  prosecuted  for  any  act  concerning  M-hich  he  shall  12 
be  compelled  so  to  testify  or  produce  e\idence,  documentary  or  other-  13 
Mise,  except  for  perjury  committed  in  so  testifjang.  14 


Ch.\p.  175.]  iNSUK-^fCE.  2023 

1  Section  18-4.    The  two  preceding  sections  shall  apply  to  all  kinds  of  f„PP''rece°d"n"i 

2  insurance,  including  contracts  of  corporate  siiretysliip,  except  those  speci-  jgy^""!".-,  ,  ^ 

3  fied  in  the  second  clause  of  section  forty-se\'en,  as  to  which  they  shall  i9io!is5;256' 
■i  apply  only  to  insurance  against  loss  or  damage  to  motor  vehicles,  their  1920,'  h?,'  §  1." 

5  fittings  and  contents  and  against  loss  or  damage  caused  by  teams,  auto- 

6  mobiles  or  other  vehicles,  excepting  rolling  stock  of  railways,  as  provided 

7  in  said  second  clause.    The  said  sections  shall  not  proliibit  any  company 

8  from  paying  a  commission  to  another  company  or  to  any  person  who  is 

9  duly  licensed  as  an  insurance  agent  of  such  company  or  as  an  insurance 

10  broker  and  who  holds  himself  out  and  carries  on  business  in  good  faith 

1 1  as  such,  or  proliibit  any  such  person  or  any  company  from  recei^^ng  a 

12  commission  in  respect  to  any  policy  under  wliich  lie  or  it  is  insured,  or 

13  in  respect  to  any  annuity  or  pure  endowment  contract  held  by  him;  nor 

14  shall  said  sections  apply  to  (1)  a  distribution,  without  special  favor  or 

15  adA-antage,  by  mutual  companies  to  policy  holders  of  sa\-ings,  earnings 

16  or  surplus  without  specification  thereof  in  the  policy,  or  (2)  the  furnishing 

17  to  the  insured  of  information  or  adA-ice  by  any  company,  officer,  agent 
IS  or  broker  with  regard  to  any  risk  for  the  purpose  of  reducing  the  liabil- 

19  ity  of  loss,  or  (3)  the  paj-ment  or  allowance  to  the  insured  of  a  return 

20  premium  or  a  cash  surrender  or  other  value  upon  cancellation,  lapse  or 

21  surrender  of  a  policy. 

MISCELL-INEOUS  PROVISIONS. 

1  Section  185.    The  state  treasurer  in  his  official  capacity  shall  take  Deposits  of 

2  and  hold  in  trust  deposits  made  by  any  domestic  company  for  the  pur-  isSIJTsa^s  43. 

3  pose  of  complying  with  the  laws  of  any  other  state  or  country  to  enable  ^srl;  fabf  ^^' 

4  such  company  to  do  business  in  such  state  or  country,  and  also  in  like  f,^  |;  jjg 

5  manner  take  and  hold  any  deposit  made  by  a  foreign  company  under  any  flsy'^ioy'*- 

6  law  of  this  commonwealth.    The  company  making  such  deposit  shall  be  issi!  ijo^    ^^ 

7  entitled  to  the  income  thereof,  and  may  from  time  to  time,  with  the  con-  isoa,'  224.' 

8  sent  of  the  treasurer,  when  not  forbidden  by  the  law  under  which  the  r.  l!  lii'.  §  9i. 

9  deposit  is  made,  change  in  whole  or  in  part  the  securities  composing  the  §§°99,^i22. 

10  deposit  for  other  approved  securities  of  equal  par  value. 

11  Upon  request  of  any  domestic  company  the  state  treasurer  may  re- 

12  turn  to  such  company  the  whole  or  any  portion  of  the  securities  of  such 

13  company  held  by  him  on  deposit  if  he  shall  be  satisfied  that  the  securities 

14  so  asked  to  be  returned  are  subject  to  no  liability  and  are  not  required  to 

15  be  longer  held  by  any  p^o^^sion  of  law  or  for  the  purpose  of  the  original 

16  deposit.     And  he  may  return  to  the  trustees,  or  other  representative 

17  authorized  for  that  purpose,  of  a  foreign  company  any  deposit  made  by 

18  such  company  if  it  shall  appear  that  such  company  has  ceased  to  do 

19  business  in  this  commonwealth,  and  is  under  no  obligation  to  policy 

20  holders  or  other  persons  in  this  commonwealth  or  in  the  United  States 

21  for  whose  benefit  such  deposit  was  made. 

22  A  company  which  has  made  such  deposit,  or  its  trustees  or  resident 

23  manager  in  the  United  States,  or  the  commissioner,  or  any  creditor  of  such 

24  company  may  at  any  time  bring,  in  the  supreme  judicial  court  for  the 

25  county  of  Suft'olk,  a  suit  in  equity  against  the  commonwealth  and  other 

26  parties  properly  joined  therein  to  enforce,  administer  or  terminate  the 

27  trust  created  by  such  deposit.    The  process  in  such  suit  shall  be  served  on 

28  the  state  treasiuer,  who  shall  appear  and  answer  on  behalf  of  the  com- 

29  monwealth  and  perform  such  orders  and  decrees  as  the  court  may  make 

30  thereon. 


2024 


INSUR.\NCE. 


[CH-^P.   175. 


Misrepre- 
sentation by 
insured. 
Effect. 
1878,  157. 
P.  S.  119,  §  ISl. 
18S7,  214,  §  21. 

1894,  622,  §  21. 

1895,  271. 

R.  L.  118,  §21. 
1907,  576, 
§§21,  122. 


Section  186.  No  oral  or  written  misrepresentation  or  warranty 
made  in  the  negotiation  of  a  policy  of  insurance  by  the  insured  or  in  his 
behalf  shall  be  deemed  material  or  defeat  or  avoid  the  policy  or  pre\ent 
its  attaching  unless  such  misrepresentation  or  warranty  is  made  ■uith 
actual  intent  to  deceive,  or  unless  the  matter  misrepresented  or  made  a 
warrantv  increased  the  risk  of  loss.  145  Mass.  426. 


139  Mass.  514. 

163  Mass.  108,  117. 

164  Mass.  448. 
167  Mass.  109. 
170  Mass.  224. 
172  Mass.  498. 


173  Mass.  197. 
ISl  Mass.  139. 

188  Mass.  542. 

189  Mass.  538. 
194  Mass.  56. 
198  Mass.  375. 


202  Mass.  169. 

207  Mass.  79,  398. 

208  Mass.  1. 
213  Mass.  389. 
224  Mass.  6,  327. 
228  Mass.  450. 


Companies 
may  insert 
conditions 
required  by 
foreign  laws. 
1910,  493,  §  5. 
1913,  533. 
1916,  47. 
1918,  112,  §3. 


Section  187.     Policies  of  life  or  endowment  insurance,   group  life  1 

insurance  or  insurance  against  accidental  injiu-y  or  disease  issued  by  a  2 

foreign  company  in  tliis  commonM-ealth  may  contain  any  pro\ision  re-  3 

quired  by  the  law  of  the  state,  territory  or  district  of  the  United  States  4 

under  wliich  the  company  is  organized;  and  such  policies  of  a  domestic  5 

company  issued  in  any  other  state,  territory,  district  or  country  may  6 

contain  any  pro^'ision  required  by  the  laws  of  the  state,  territory,  district  7 

or  country  in  which  the  same  are  issued.  8 


Penalty  for 
unlawful  use 
of  proxy. 
1887,  214, 
§107. 
1894,  522, 
§  107. 
R.  L.  lis, 
§  107. 


Section  188.    A  paid  officer  of  a  domestic  mutual  company  who  1 

asks  for,  receives  or  procures  to  be  obtained  or  uses  a  proxy  to  vote  in  2 

Aiolation  of  any  pro^^sion  of  section  seventy-six  or  ninety-four  shall  be  3 

punished  by  a  fine  of  not  less  than  one  hundred  nor  more  than  three  hun-  4 

dred  dollars.  i907, 376,  §§  no,  122.  1908, 162.  5 


Penalty  for 
making,  etc., 
policies  in 
violation  of 


Section  189.     A  company  or  any  officer  or  agent  thereof  who  makes,  1 

issues  or  deli\ers  a  policy  of  insurance  or  an  aiuiuity  or  pure  endo'ft-ment  2 

1907?  576?§'29.  coutract  in  ^^olation  of  tiiis  chapter  shall,  except  as  pro%-ided  in  the  follow-  3 

1920]  150.         ing  section,  forfeit  not  less  than  fifty  nor  more  than  two  hundred  dollars.  4 


Penalty  for 
making,  etc., 
policies  con- 
trarj' to  sections 
99,  108,  109, 
132,  134. 
1873,  331, 
§§3,4. 

1881,  166,  §  2. 
P.  S.  119. 
§  140. 
1887,  214, 
§  105. 
1894,  522, 
§  105. 


Section  190.     A  company  or  any  officer  or  agent  thereof  who  makes,  1 

issues  or  delivers  a  policy  of  fire  insurance  in  wilful  A-iolation  of  section  2 

ninety-nine  or  a  policy  of  accident  or  health  insurance  in  v^iUul  ^^olation  3 

of  any  pro\'ision  of  section  one  hundred  and  eight  or  one  hundred  and  4 

nine,  or  a  policy  of  life  or  endowment  insurance  or  an  annuity  or  pure  5 

endo^^^nent  policy  in  Milful  \-iolation  of  any  pro\ision  of  section  one  hun-  6 

dred  and  tliirty-two  or  one  hundred  and  thirty-four  shall  be  punished  by  7 

a  fine  of  not  more  than  five  hundred  dollars.  8 


R.  L.  118,  §  103. 


1907,  576,  §§  114,  122 


1910,  493,  §  7. 


Section  191.     The  commissioner  may  require  a  company  to  submit 


Companies  to 
file  policies, 

onrequest.'""  for  liis  inspection  copies  of  any  policy  form  used  by  the  company;  a 
1920, 123,  §  2.  foi-jQ  of  any  rider,  endorsement  or  application  used  in  connection  there- 
with, and  copies  of  any  circular  or  other  advertising  matter  issued  by 
it  in  the  commonwealth.  A  company,  or  any  officer  or  agent  thereof 
who,  within  thirty  days  after  receipt  of  a  UTitten  request  therefor,  neg- 
lects or  refuses  to  comply  ■nith  tliis  section  shall  be  punished  by  a  fine 
of  not  less  than  one  hundred  nor  more  than  fi^e  hundred  dollars. 


?ubfectto°'  Section  192.     All  provisions  of  law  relative  to  the  filing  of  policy 

commS'ioner.    forms  with,  and  the  approval  of  such  forms  by,  the  commissioner  shall 
1920, 123,  §  1.    also  apply  to  all  forms  of  riders,  endorsements  and  applications  de- 
signed to  be  attached  to  such  policy  forms  and  when  so  attached  to 


Chap.  176.] 


FRATERNAL   BENEFIT   SOCIETIES. 


2025 


5  constitute  a  part  of  the  contract;   p^o^^defl,  that  riders  or  endorsements 

6  used  at  the  request  of  indiMidual  pohcy  holders  in  connection  ^\itli 

7  policies  of  life  or  endowTnent  insm-ance  relative  to  the  distribution  of 

8  benefits  payable  under  their  policies  or  to  the  reservation  of  rights  or 

9  benefits  thereunder,  may  be  used,  so  far  as  consistent  with  law,  with- 
10  out  such  approval. 


Policies  valid 
though  issued 
contrary-  to 


1  Section  193.     Any  policy  of  insurance  or  any  annuity  or  pure  en- 

2  dowment  contract  issued  in  ^'iolation  of  any  pro\'ision  of  tliis  chapter 

3  shall  be  vahd  and  binding  upon  the  company  issuing  it,  and  the  rights,  i|'|j^453'"'; 

4  duties  and  obligations  of  the  parties  thereto  shall  be  determined  by  this  G^s'58"'§y^' 

5  chapter.  i873, 331.  §  6.  issi,  166.  §  2.  p.  s.  119,  §1 140, 200. 

i4. 


1887,  2U,  §  105. 
1894,  522,  §  105. 
R.  L.  118,  §  105. 
1907.  576,  §§  29,  114,  12 


1910,  493, 

1919,  110. 

1920,  150. 

160  Mass.  413. 


165  Mass.  501. 
182  Mass.  389. 
184  Mass.  177. 
232  Mass.  214. 


GENERAL   PENALTY. 


1  Section  194.     'WTioever  ^•iolates  any  pro\-ision  of  tliis  chapter,  the  General 

2  penalty  whereof  is  not  specifically  pro'vided  for  herein,  shall  be  punished  is87,'2i4, 

3  bv  a  fine  of  not  more  than  fi\-e  hundred  dollars. 


110. 


1894,  522,  §  110. 
E.  L.  lis,  I  111. 


1907,  576,  §§  120,  12 
190S.  511,  §  4. 


1912,  401,  §4. 
1920,  147,  i  3. 


REFERENCES. 

Burning  to  defraud  company,  Chap.  266,  §  10. 

Change  of  name  of  insurance  companies,  Chap.  15.5,  §  10. 

False  reports  in  statements  required  to  be  filed,  etc..  Chap.  155,  §§  48,  49. 

Forgery  of  policies,  Chap.  267,  §  1. 

Municipal  building  funds  insurance.  Chap.  40,  §  13. 

Organization  of  division  of  insurance,  Chap.  26,  §§  6-S. 

Pohtical  contributions  forbidden,  Chap.  55,  §  7. 

Restraining  companies  from  doing  unauthorized  business,  Chap.  155,  §  11. 

Service  on  agent  of  foreign  companies,  Chap.  223,  §  39. 

Taxation  of  companies,  Chap.  63,  §  20  et  seq. 

Workmen's  compensation  poUcies,  Chap.  152,  §  52  et  seq. 


CHAPTER     176. 


FRATERNAL  BENEFIT   SOCIETIES. 


Sect. 

1.  Definitions. 

2.  Lodge  system  defined. 

3.  Representative  fonu  of  government  de- 

fined. 

4.  Form  of  government  of  certain  socie- 

ties. 

5.  Laws  applicable  to  fraternal  societies. 

6.  Formation  of  corporation. 

7.  First  meeting. 

8.  Preliminary  license,  etc.,  for  society  on 

the  lodge  plan. 

9.  Certificate  of  organization,  etc. 

10.  Effect  of  failure  to  do   business  for  a 

year. 

11.  Altering  purpose  of  corporation. 

12.  Merger  or  transfer. 

13.  Creation  of  death  fund,  etc. 

14.  Proportion  of  pa>"ment3  which  may  be 

used  for  expenses. 


Sect. 

15.  Deferred  payments  considered  as  liabili- 

ties. 

16.  Certain  societies  may  grant  extended  or 

paid-up  protection,  etc. 

17.  Distribution  of  surplus,  etc. 

18.  Investment  of  funds. 

19.  Payment  of  death  benefits,  etc. 

20.  Certificates,  etc. 

21.  Beneficiaries,  etc. 

22.  Burial  benefits. 

23.  Death  benefits  on  lives  of  children. 

24.  Medical  examination  of  children,  etc. 

25.  Reserves  on  children's  certificates. 

26.  Separation   of   assets,   etc.,   connected 

with  children's  insurance. 

27.  Payments  to  expense  fund.    Children's 

certificates.       • 

28.  Continuation  of  child's  certificate. 

29.  Action  by  beneficiarj'. 


2026 


FRATERNAL  BENEFIT  SOCIETIES. 


[Ch.\p.  176. 


Sect. 

30.  Money,  etc.,  not  liable  to  attachment. 

31.  Beneficial  members. 

32.  Constitution  and  by-laws. 

33.  Where  meetings  may  be  held. 

34.  Subordinate  bodies  may  not  waive  pro- 

vision of  constitution,  etc. 

35.  Copies  of  amendments  to  be  filed. 

36.  Examination  of  domestic  societies. 
Commissioner  not   to  make   public  fi- 
nancial statements  pending  examina- 
tion, etc. 

Annual  statement. 

39.  Reports  by  societies  on  the  lodge  system . 

40.  Extra  rates  in  case  of  deficiency.     Class 

of  members  at  higher  rates. 


37 


38 


Sect. 

41.  Foreign  societies. 

42'.  Appointment  of  commissioner  as  attor- 
ney for  service  of  process. 

43.  Revocation  of  license  of  foreign  society. 

44.  Examination  of  foreign  societies. 

45.  Domestic  societies  with  limited  mem- 

bership, etc. 

46.  Same  subject.     Societies  exempt  from 

this  chapter,  except  sections  20  and 
29. 

47.  Unlawful  business  may  be  enjoined. 

48.  Penalties  for  false  statements. 

49.  Penalty  for   soliciting   membership    in 

unauthorized  society. 

50.  General  penalty. 


Definitions. 
1911,628,  §  1. 
1919.  3.i0, 
§§  45,  46. 


Section  1.     In  this  chapter  the  following  words  shall  have  the  fol-  1 

lowing  meanings:                                                                           .  2 

"Commissioner",  the  commissioner  of  insurance.  3 

"Fraternal  benefit  society"  or  "society",  any  corporation,  associa-  4 

tion,  society,  order,  fraternity  or  other  organization  without  capital  5 

stock,  organized  and  carried  on  solely  for  the  mutual  benefit  of  its  mem-  6 

bers  or  their  beneficiaries,  and  not  for  profit,  and  either  with  a  lodge  7 

system,  with  ritualistic  form  of  work  and  representative  form  of  govern-  8 

ment,  or  without  a  lodge  system,  under  the  direct  control  of  its  members,  9 

which  makes  provision  for  the  payment  of  death  or  disability  benefits  10 

or  both.  11 


Lodge  system 
defined. 


1911,628,  I  2. 
1  Op.  A.  G.  54. 


Section  2.     Any  such  society  shall  be  deemed  to  be  operating  on  the  1 

r^'l'iio'H''  loflg^  system  when  it  has  a  supreme  governing  or  legislative  body,  and  2 

subordinate  lodges  or  branches,  by  whatever  name  known,  to  which  3 

members  are  elected,  initiated  and  admitted  in  accordance  with  its  4 

constitution,   by-laws,   and  prescribed   ritualistic   ceremonies,    and   the  5 

subordinate  lodges  or  branches  of  which  are  required  by  the  by-laws  6 

of  such  society  to  hold  regular  or  stated  meetings  at  least  once  in  each  7 

month.  8 


Represent.ntive 
form  of  go\'- 
ernment 
define<l. 
1901,422, 
§§  1,11,10. 
R.  L.  119, 
§§  1,2.11. 
1911,628,  §3. 


Form  of 
government 
of  certain 
societies. 
1901,422,  5 
R.  L.  119,  I 
1911,628,  § 
div.  b. 
1913,617,  § 


Section  3.  Any  such  society  shall  be  deemed  to  have  a  representa-  1 
ti\-e  form  of  government  when  it  shall  provide  in  its  constitution  and  2 
by-laws  for  a  supreme  legislative  or  governing  body,  composed  of  repre-  3 
sentatives  elected  either  by  the  members  or  by  delegates  elected  directly  4 
or  indirectly  by  the  members,  together  with  such  other  members  as  5 
may  be  prescribed  by  its  constitution  and  by-laws;  provided,  that  6 
the  electi\e  members  shall  have  not  less  than  two  thirds  of  the  votes  7 
nor  less  than  the  number  of  votes  required  to  amend  its  constitution  8 
and  by-laws;  and  provided,  further,  that  the  meetings  of  the  supreme  9 
or  governing  body  and  the  election  of  officers,  representati\es  or  dele-  10 
gates  shall  be  held  as  often  as  once  in  four  years.  The  members,  ofR-  11 
cers,  representatives  or  delegates  of  a  fraternal  benefit  society  shall  not  12 
vote  by  prox}'.  13 


Section  4.  A  corporation  which  limits  its  membership  to  the  mem- 
bers of  a  particular  fraternal  beneficiary  corporation,  fraternity  or 
religious  denomination,  or  to  the  graduates  of  a  designated  professional 
or  vocational  school,  or  to  the  employees  or  ex-employees  of  cities  or 
towns  or  of  the  commonwealth  or  of  the  federal  government,  or  to  the 


Chap.  176.]  fraternal  benefit  societies.  2027 

6  employees  or  ex-employees  of  a  designated  firm,  business  house  or  cor-  1915.39. 

7  poration,  or  of  any  department  of  a  designated  firm,  business  house  or  206  iiass.  iso. 

8  corporation,  or  to  persons  of  the  same  foreign  extraction  retaining  common 

9  national  interests  and  designation,  or  to  persons  of  the  same  occupation, 

10  may  be  on  the  lodge  system,  and  if  not  on  the  lodge  system  shall  be 

11  governed  by  a  direct  vote  of  its  members  without  the  lodge  system.    A 

12  corporation  not  so  limiting  its  membership  shall  be  on  the  lodge  system, 

13  with  a  representative  form  of  government  as  defined  in  sections  two 

14  and  three. 

1  Section  5.     Societies  shall  be  governed  by  this  chapter,  and  shall  be  Laws  applicable 

2  exempt  from  all  other  provisions  of  the  insurance  laws  of  the  common-  sodetS.""' 

3  wealth  except  sections  sixteen  and  one  Innidred  and  seventy-eight  to  Jgjf ;  IqI]  |  l' 

4  one  hundred  and  eighty,  inclusive,  of  chapter  one  hundred  and  seventy-  p^f'/i^s^'.^j^tj 

5  five,  not  only  in  go^'ernmental  relations  with  the  commonwealth,  but  for  jsss.  ig^  1 1- 

6  every  other  purpose;  and  no  law  hereafter  enacted  shall  apply  to  them  i89o,'42i',  §  i.' 

7  unless  they  are  expressly  designated  therein.  1894, 367,  §  is. 

189S,  474,  5  22.  1901,  422.  §  27.  1910,  493,  §  3. 

1899,442,127.  R.  L.  119,  §  22;  120,  |1.  1911,628,  §4. 

1  Section  6.     Seven  or  more  persons,  residents  of  the  commonwealth.  Formation  of 

2  may  form  a  corporation  for  the  purposes  set  forth  in  this  chapter.  i88s??29!°' 

3  The  agreement  of  association  shall  state  that  the  subscribers  thereto  i894'|67, 

4  associate  themselves  with  the  intention  of  forming  a  corporation,  the  figg' ^y^j 

5  corporate  name  assumed,  the  purpose  for  which  it  is  formed,  and  the  §§  i.'z-   ' 

6  town,  which  shall  be  in  the  commonwealth,  in  which  it  is  established  §§  1,2. 

7  or  situated.    The  name  shall  not  so  closely  resemble  the  name  of  any  §§  i,'2.   ' 

8  corporation  or  insurance  company  already  transacting  business  in  the  uo^'§§°?5.\o; 

9  commonwealth  as  to  mislead  the  public  or  lead  to  confusion.     Any  law-  Jgoj^lig"' 

10  ful  social,  intellectual,  educational,  charitable,  benevolent,  moral  or  reli-  1911,62s,  §12, 

«     ]  divs.  a  and  b. 

1 1  gious  advantages  may  be  set  forth  among  the  purposes  of  the  corpora-  i9i3. 617,  §  2. 

12  tion.     If  the  corporation  limits  its  membership  as  provided  in  section  1916]  4.' 

13  foiu-,  the  agreement  of  association  shall  state  the  maximum  amounts  of 

14  benefits  to  be  paid,  and  shall  designate  to  which  one  of  the  classes  men- 
1.3  tioned  in  said  section  its  membership  is  restricted. 

1  Section  7.     The  first  meeting  of  the  associates  shall  be  called  by  a  First  meeting. 

2  notice,  signed  by  one  or  more  of  the  subscribers  to  the  agreement,  stating  iff.'s,"!.' 

3  the  time,  place  and  purpose  of  the  meeting;   a  copy  of  the  notice  shall,  |S9^^^367' 

4  seven  days  at  least  before  the  day  appointed  for  the  meeting,  be  given  ll^^zfj- 

5  to  each  subscriber,  or  left  at  his  usual  place  of  business  or  place  of  resi-  is99, 442. 

6  dence,  or  deposited  in  the  post  office,  postpaid,  addressed  to  him  at  his  1901, 422. 

7  usual  place  of  business  or  residence.     Whoever  gives  such  notice  shall  r.  l'.uo, 

8  make  an  affidavit  of  his  doings,  which  shall  be  recorded  in  the  records  \IqJ(  "'  ^°' 

9  of  the  corporation.     At  such  first  meeting,  including  any  reasonable  Jg^^  §^6.^  ^  ^^ 

10  adjournment  thereof,  an  organization  shall  be  effected  by  the  choice  by  ^^^-^^jj^^J  j,,, 

11  ballot  of  a  temporary  clerk,  who  shall  be  sworn,  and  by  the  adoption  lOp.  A.'o.iiL 

12  of  by-laws,  and  the  election  by  ballot  of  directors,  president,   secretary 

13  and  treasurer,  or  other  officers  corresponding  thereto,  with  powers  and 

14  duties  similar  to  those  of  such  officers,  and  such  other  officers  as  the 

15  by-laws  may  provide  for;   but  at  such  election  no  person  shall  be  eligi- 

16  ble  as  a  director  or  other  officer  who  has  not  subscribed  the  agreement 

17  of  association.    The  temporary  clerk  shall  make  and  attest  a  record  of 

18  the  proceedings  until  the  secretary  has  been  chosen  and  sworn,  including 


2028  FRATERNAL   BENEFIT   SOCIETIES.  [Ch.A.P.    176. 

a  record  of  such  choice  and  quaHfication.  The  president,  secretary  19 
and  a  majority  of  the  directors,  or  other  officers  corresponding  thereto,  20 
shall  forthwith  make,  sign  and  swear  to  a  certificate  of  organization  21 
in  duplicate,  setting  forth  a  true  copy  of  the  agreement  of  association,  22 
with  the  names  of  the  subscribers  thereto,  the  date  of  the  first  meeting  23 
and  of  the  successive  adjournments  thereof,  if  any;  and  said  certificate  24 
of  organization  and  duly  certified  copy  of  the  by-laws,  and  copies  of  all  25 
proposed  forms  of  benefit  certificates,  applications  therefor  and  litera-  26 
ture  to  be  issued  by  the  corporation  shall  be  filed  with  the  commis-  27 
sioner,  who  may  require  such  further  information  as  he  deems  neces-  28 
sary;  and  if  the  purposes  and  by-laws  of  the  corporation  conform  to  29 
the  requirements  of  this  chapter  and  all  its  provisions  have  been  com-  30 
plied  with,  the  commissioner  shall  so  certify,  and  place  on  file  the  agree-  31 
ment  of  association,  one  of  the  duplicate  certificates  of  organization,  32 
and  a  copy  of  the  by-laws  approved  by  him.  33 

ucm™"*?.  Section  8.    The  commissioner  shall  then  furnish  the  incorporators     1 

OTtheiodge  of  any  such  society,  if  on  the  lodge  plan,  with  a  preliminary  license,  2 
1895'  340  5  2  authorizing  it  to  solicit  members  for  the  purpose  of  completing  its  or-  3 
1898!  474;  §s:  ganization.  It  shall  collect  from  each  applicant  the  amount  of  not  4 
1901!  422!  I  s.  more  than  one  periodical  benefit  assessment  or  pa\Tuent,  in  accordance  5 
??n;  628,  §  12,  with  its  tables  of  rates  as  provided  by  its  constitution  and  by-laws,  6 
msfios.  and  shall  issue  to  every  such  applicant  a  receipt  for  the  amount  so  7 
1920, 257,  §  I.  collected.  But  no  such  society  shall  incur  any  liability  other  than  8 
for  such  advance  pajmients,  nor  issue  any  benefit  certificate,  nor  pay  or  9 
allow,  or  offer  or  promise  to  pay  or  allow,  to  any  person  any  death  or  10 
disability  benefit  until  actual  bona  fide  applications  for  death  or  dis-  11 
ability  benefit  certificates,  as  the  case  may  be,  have  been  secured  from  12 
at  least  five  hundred  persons,  and  all  such  applicants  for  death  bene-  13 
fits  shall  have  been  regularly  examined  by  legally  qualified  practicing  14 
physicians,  and  certificates  of  such  examinations  have  been  duly  filed  15 
and  approved  by  the  chief  medical  examiner  of  the  societj';  nor  until  16 
there  shall  be  established  ten  subordinate  lodges  or  branches,  in  which  17 
said  five  hundred  applicants  have  been  initiated;  nor  until  there  has  IS 
been  submitted  to  the  commissioner,  on  oath  of  the  president  and  secre-  19 
tary  or  corresponding  officers  of  such  society,  a  list  of  the  said  appli-  20 
cants,  giving  their  names,  addresses,  date  of  examination,  date  of  ap-  21 
proval,  date  of  initiation,  name  and  number  of  the  subordinate  branch  22 
of  which  each  applicant  is  a  member,  amount  of  benefits  to  be  granted,  23 
and  rate  of  regular  payments  or  assessments,  which  for  societies  off'ering  24 
death  benefits  shall  not  be  lower  for  death  benefits  than  those  required  25 
by  the  National  Fraternal  Congress  Table  of  Mortality  as  adopted  by  26 
the  National  Fraternal  Congress  August  twenty-thhd,  eighteen  hundred  27 
and  ninety-nine,  or  any  higher  standard  at  the  option  of  the  society,  28 
with  an  interest  assumption  not  higher  than  four  per  cent  per  annum;  29 
nor  until  it  shall  be  shown  to  the  commissioner,  by  the  sworn  statement  30 
of  the  treasiu-er  or  corresponding  officer  of  such  society,  that  at  least  five  31 
hmidred  appHcants  for  death  benefits  have  each  paid  in  cash  one  regular  32 
payment  or  assessment  as  herein  pro\ided,  and  the  payments  in  the  33 
aggregate  shall  amount  to  at  least  twenty-five  hundred  dollars,  all  of  34 
which  shall  be  credited  to  the  mortuary  or  disability  fund  on  account  of  35 
the  applicants,  and  no  part  of  which  may  be  used  for  ex-penses.  Such  36 
advance  payments  shall,  during  the  period  of  organization,  be  held  in  trust  37 


Chap.  176.]  fe.\tern.\l  benefit  societies.  2029 

38  for  the  applicants,  and,  if  the  organization  is  not  completed  within  one 

39  year  as  hereinafter  provided,  shall  be  returned  to  them.    The  commis- 

40  sioner  may  make  such  examination  and  require  such  fiu-ther  information 

41  as  he  deems  advisable;  and  upon  presentation  of  satisfactory  evidence 

42  that  the  society  has  complied  with  all  the  provisions  of  this  chapter,  he 

43  shall  issue  to  the  society  a  certificate  to  that  effect. 

1  Section  9.     The  society  shall  file  a  certificate  of  organization,  with  Certificate  of 

2  the  certificate  of  the  commissioner  endorsed   thereon,    and  if  on   the  °J^'""^''"°°' 

3  lodge  plan  also  the  certificate  required  by  the  preceding  section,  in  JIgf ;  lo?,'  |  7'. 

4  the  office  of  the  state  secretary,  who,  upon  the  receipt  of  five  dollars,  }|99;442;|7' 

5  shall  cause  the  same,  with  the  endorsements,  to  be  recorded,  and  shall  ^  "l  1",o' |  on- 

6  thereupon  issue  a  certificate  in  the  following  form:  119,  §2. 

^  °  1911.  628,  §  12, 

div.  e. 
/-I  ■.  r  149  Mass.  436. 

COMMOT\T\-EALTH   OF   AIaSSACHTJSETTS.  151  Mass.  558. 

Be  it  known  that  whereas  (here  the  names  of  the  subscribers  to  the  agree- 
ment of  the  association  shall  be  inserted)  have  associated  themselves  with  the 
intention  of  forming  a  corporation  under  the  name  of  (here  the  name  of  the 
corporation  shall  be  inserted),  for  the  purpose  (here  the  purpose  declared  in 
the  agreement  of  association  shall  be  inserted),  and  have  complied  with  the 
provisions  of  the  statutes  of  the  commonwealth  in  such  case  made  and  pro- 
vided, as  appears  from  the  certificate  of  officers  of  said  corporation,  duly 
certified  by  the  commissioner  of  insurance  and  recorded  in  this  office:  Now, 
therefore,  I  (here  the  name  of  the  secretary  shall  be  inserted),  secretary  of  the 
commonwealth  of  Massachusetts,  do  hereby  certify  that  said  (here  the  names 
of  the  subscribers  to  the  agreement  of  association  shall  be  inserted),  their  asso- 
ciates and  successors,  are  legally  organized  and  established  as,  and  are  hereby 
made  a  corporation,  under  the  name  of  (here  the  name  of  the  corporation  shall 
be  inserted),  wdth  the  powers,  rights  and  privileges,  and  subject  to  the  limita- 
tions, duties  and  restrictions  which  by  law  appertain  tliereto.  Witness  my 
official  signatiu'e  hereunto  subscribed,  and  the  great  seal  of  the  commonwealth 
of  Massachusetts  hereunto  affixed,  this  day  of  in  the 

year  .    (In  these  blanks  the  day,  month  and  year  of  the  execution  of  the 

certificate  shall  be  inserted.) 

7  The  state  secretary  shall  sign  the  same  and  cause  the  seal  of  the  com- 

8  monwealth  to  be  affixed  thereto,  and  the  certificate  shall  be  conclusive 

9  evidence  of  the  existence  of  the  corporation  at  the  date  of  the  certificate. 

10  He  shall  also  cause  a  record  of  the  certificate  to  be  made,  and  a  certi- 

11  fied  copy  of  the  record  may  be  given  in  evidence  with  like  effect  as  the 

12  original. 

1  Section  10.     If  any  society  fails  to  secure  its  certificate  of  incorpora-  Effect  of 

2  tion  and  to  begin  business  within  one  year  after  the  date  of  receiving  b'uii'ness°fOT 

3  the  certificate  of  the  commissioner,  as  provided  in  section  seven,  its  is89"429.  §  n 

4  agreement  of  association  and  all  proceedings  thereunder  shall  become  JggI' 474' |  ojj' 

5  null  and  void;   and  if  any  domestic  corporation  subject  to  this  chapter  '^S^'^i^M^S- 

6  ceases  to  do  business  for  the  period  of  one  year,  its  charter  or  certificate  R.  l!  ii5',  §  20! 

7  of  incorporation  shall  become  null  and  void.  i9ii,  628,  §  12,  div.  f. 

1       Section  11.     A  domestic  fraternal  benefit  corporation  may,  with  the  Altering 


approval  of  the  commissioner,  change  the  j)urposes  for  which  it  was  ?orporat°on. 

3  incorporated  so  as  to  permit  it  to  transact  any  business  authorized  by  isolisu?,'!}!" 

4  this  chapter.    Upon  such  approval  the  presiding,  financial  and  recording  Jl"!' 44|' |  Is' 

5  officers,  and  a  majority  of  its  other  officers  having  the  powers  of  di-  n'°f' ■',","9' |% 

6  rectors,  shall  file  in  the  office  of  the  state  secretary  a  certificate,  with  iuii,'c2s,'§  13.' 


2030 


FRATERNAL   BENEFIT   SOCIETIES. 


[Chap.  176. 


the  approval  of  the  commissioner  endorsed  thereon,  setting  forth  the  7 
change  in  the  purposes  of  the  corporation.  The  state  secretary  shall,  8 
upon  receipt  of  five  dollars,  cause  such  certificate  to  be  filed  and  re-  9 
corded  in  his  office.  E^'ery  domestic  fraternal  beneficiary  corporation  10 
may  exercise  all  the  rights,  powers  and  privileges  conferred  by  this  11 
chapter,  including  the  powers  specified  in  section  thirty-two,  or  its  12 
certificate  of  incorporation  or  charter,  not  inconsistent  herewith,  and  1.3 
shall  be  subject  to  this  chapter,  as  if  reincorporated  hereunder.  14 


Merger  or 
transfer. 
1882,  19.5.  §  4. 
1S88.  429,  I  10. 
1S90,  341. 

1893,  47. 

1894,  367,  §  9. 
1898,474,  §  12. 
1899,442,1  16. 
1901,  422,  I  16. 
R.  L.  119,  §  11. 
1908,  463. 
1911,628,  §  14. 
215  Mass.  347. 


Section  12.  No  domestic  society  shall  merge  with  or  accept  the  1 
transfer  of  the  membership  or  funds  of  any  other  society  unless  such  2 
merger  or  transfer  is  evidenced  by  a  WTitten  contract,  setting  out  in  3 
full  the  terms  and  conditions  of  the  merger  or  transfer,  and  filed  with  4 
the  commissioner,  together  with  a  sworn  statement  by  the  president  and  5 
secretary,  or  corresponding  oflBcers,  of  each  of  said  societies  of  its  finan-  6 
cial  condition,  and  a  sworn  certificate  of  the  said  officers  of  each  of  7 
the  contracting  societies  that  the  merger  or  transfer  has  been  approved  8 
by  a  vote  of  two  thirds  of  the  members  of  the  supreme  legislative  or  9 
governing  body  of  each  of  said  societies.  10 

Upon  the  submission  of  said  contract,  financial  statements  and  cer-  11 
tificates,  the  commissioner  shall  examine  them,  and  if  he  shall  find  the  12 
said  financial  statements  correct,  and  the  said  contract  in  conformity  1.3 
with  this  section,  and  that  the  merger  or  transfer  is  just  and  equitable  14 
to  the  members  of  each  of  said  societies,  he  shall  approve  the  merger  or  15 
transfer,  issue  his  certificate  to  that  eft'ect,  and  thereupon  the  said  con-  16 
tract  of  merger  or  transfer  shall  be  of  full  force  and  effect;  provided,  17 
that  no  such  merger  proposed  by  two  societies  not  incorporated  in  the  18 
same  state  shall  go  into  effect  until  approved  by  the  commissioner,  or  19 
corresponding  officer,  of  each  state  incorporating  the  societies  involved  20 
in  the  proposed  transaction,  nor  until  their  joint  certificate  of  approval  21 
of  the  contract  therefor  is  issued.  22 


Creation  of 
death  fund, 
etc. 

1890,  341, 
§  1;  400. 
1894,  367,  §  8. 
1897,  228. 
1898,474,  §  11. 
1899,  442, 
§§  11.12. 
1901,  275; 
■422,  §§11,  12. 
R.  L.  119, 
§§6,7. 

1911,  028,  §  9, 
subs.  1. 
159  M.1SS.  9. 
196  Mass.  151. 
215  Mass.  185. 


Section  13.  Any  society  may  create,  maintain,  invest,  disburse  1 
and  apply  a  death  fund,  any  part  of  which  may  in  accordance  with  2 
the  by-laws  of  the  society  be  designated  and  set  apart  as  an  emergency,  3 
a  surplus  or  other  similar  fund,  and  a  disability  fund.  Such  funds  shall  4 
be  held,  invested  and  disbursed  for  the  use  and  benefit  of  the  society,  5 
and  no  member  or  beneficiary  shall  have  or  acquire  individual  rights  6 
therein,  or  become  entitled  to  any  part  thereof,  except  as  prov-ided  in  7 
section  sixteen,  seventeen  or  nineteen.  The  funds  from  which  benefits  8 
shall  be  paid  shall  be  derived  and  the  fund  from  which  the  expenses  of  9 
the  society  shall  be  defrayed  may  be  derived  from  periodical  or  other  10 
paj-ments  by  the  members  of  the  society  and  accretions  of  said  funds;  11 
provided,  that  no  society  shall  be  incorporated,  and  no  societj^  not  12 
authorized  on  January  first,  nineteen  hundred  and  twelve,  to  do  busi-  13 
ness  in  the  commonwealth  shall  be  admitted  to  transact  business  therein,  14 
which  does  not  provide  for  stated  periodical  contributions  sufficient  to  15 
meet  the  mortuary  obligations  contracted,  when  valued  upon  the  basis  16 
of  the  National  Fraternal  Congress  Table  of  IMortality  as  adopted  by  17 
the  National  Fraternal  Congress  August  twenty-third,  eighteen  hun-  18 
dred  and  ninety-nine,  or  any  higher  standard,  with  interest  assumption  19 
not  more  than  four  per  cent  per  annum,  except  societies  providing  20 
benefits  for  disability  or  death  from  accident  only.  21 


CH-^P.    176.]  FRATERNAL   BENEFIT   SOCIETIES.  2031 

1  Section  14.     Every  provision  of  tlie  by-la\vs  of  the  society  for  pay-  Proportion  of 

2  ment  by  members  of  such  society,  in  whate\-er  form  made,  shall  dis-  which  may  be 

3  tinctly  state  the  purposes  of  the  same  and  the  proportion  thereof  which  expenses. 

4  may  be  used  for  expenses,  and  no  part  of  the  money  collected  for  mortu-  jUJf ;  H^;  ^  ^■ 

5  ary  or  disability  purposes  or  the  net  accretions  of  either  or  any  of  said  J^as.  474.  |  n. 

6  funds  shall  be  used  for  expenses. 

1901,422,  |§  12,  13.  R.  L.  119,  |§7,  S.  1911,  628,  §  11. 

1  Section  15.     Deferred  payments  or  instalments  of  claims  shall  be  Deferred 

2  considered  as  fixed  liabilities  on  the  happening  of  the  contingency  upon  coSS-ed  as 

3  which  such  payments  or  instalments  are  thereafter  to  be  paid.     Such  1911,' els.  §  9, 

4  liability  shall  be  the  present  value  of  such  future  payments  or  instal-  ™'^^'  ^• 

5  ments  upon  the  rate  of  interest  and  mortality  assumed  by  the  society 

6  for  establishing  contributions  and  for  valuation;    and  every  society 

7  shall  at  once,  upon  the  filing  of  due  proofs  of  the  happening  of  the  con- 

8  tingency,  set  apart  a  fund  to  meet  such  deferred  payments,  regardless  of 

9  proposed  future  collections  to  meet  any  such  payments,  and  hold  such 

10  fund,  with  its  interest  accretions,  in  trust  for  the  beneficiary  entitled 

11  thereto. 

12  No  society  shall  provide  for  such  deferred  pajTnents  or  instalments 

13  unless  it  possesses  the  full  reserve  specified  in  the  following  section,  or, 

14  if  paying  accident  benefits  only,  has  assets  sufficient  to  pay  all  its 

15  liabilities. 

1  Section  16.     Any   society   which   shows  by   the   annual   valuation  Certain  socie- 

2  hereinafter  provided  for  that  it  is  accumulating  and  maintaining  the  exTeS  m""^' 

3  tabular  reserve  required  by  a  table  of  mortality  not  lower  than  the  toS  etT 

4  American  Ex-perience  Table  and  four  per  cent  interest,  and  which  has  subs' 2^*' ^  ^' 

5  provided  for  stated  periodical  mortuary  contributions  based  on  said  Jgjg'gg^- 

6  standard,  or  which  shows  that  its  stated  periodical  mortuary  contri- Op.  a.g. 

7  butions  for  the  period  of  the  &ve  years  next  preceding,  at  rates  at  no 

8  time  higher  than  those  in  use  following  said  period,  were  sufficient  to 

9  pay  the  actual  claims  and  maintain  the  aforesaid  reserve  for  said  period 

10  without  recourse  to  the  reserves  released  by  the  lapsing  of  certificates, 

11  and  without  falling  below  said  standard  for  any  two  consecutive  years 

12  of  said  period,  may  grant  to  its  members  such  extended  or  paid-up 

13  protection  or  such  withdrawal  equities  as  its  constitution  and  by-laws 

14  may  provide;  provided,  that  such  grants  shall  be  equitable,  and  shall 

15  in  no  case  exceed  in  value  the  portion  of  the  reserve  derived  from  the 

16  payments  of  the  individual  members  to  whom  they  are  made. 

1  Section  17.     Whenever  the  actual  assets  of  a  society  exceed  its  Distribution 

2  liabilities,  including  in  liabilities  the  net  value  of  its  outstanding  con-  i9iT,'62s!f5!' 

3  tracts  computed  on  the  basis  specified  in  the  preceding  section,  by  an  ^"''^'  ^' 

4  amount  equal  to  five  per  cent  of  said  net  value,  such  society  may  make 

5  an  equitable  distribution  of  any  surplus  in  excess  of  said  five  per  cent 

6  by  a  reduction  of  the  periodical  contributions  of  its  members. 

1  Section  18.     Every  society  shall  invest  its  funds  only  in  securities  investment 

2  permitted  by  chapter  one  hundred  and  seventy-five  for  the  investment  of  isss.  429,  §  9. 

3  the  capital  of  insurance  companies:   provided,  that  any  foreign  society  llgJ^seT^ss. 

4  permitted  or  seeking  to  do  business  in  the  commonwealth  may  invest  Jsnsllftsii. 

5  its  funds  in  accordance  with  the  laws  of  the  state  where  it  is  incorpo-  j;'iui'402'|  }!;■ 

6  rated,  and  provided,  that  a  part  thereof,  not  exceeding  twenty  per  cent  R.  l'  na!  §  7. 


2032 


FRATERNAL  BENEFIT   SOCIETIES. 


[ClL\P.    176. 


1910. 649. 
1911,  628,  §  10. 
1920.  359. 
1  Op.  A.  G.  1, 
32,  135. 


of  its  death  fund,  may  be  invested  in  a  building  for  use  and  occupation  7 
by  the  society  as  its  home  office;  and  that  a  society  having  branches  8 
situated  in  the  Dominion  of  Canada  may  invest  a  part  of  its  death  fund  9 
in  the  public  funds  of  the  Dominion  of  Canada,  or  of  any  province  of  10 
the  Dominion  of  Canada,  not  exceeding  in  the  aggregate  an  amount  11 
equal  to  the  sum  of  its  collected  premiums  for  the  foiu*  months  last  past.  12 


Payment  of 
death  benefits. 

1877,  204,  §  1. 
P.  S.  lis,  §  8. 
1882,  192, 
§§1,2. 

1888,429,  §  8. 
1890,  341. 
1894,  367,  §  8. 
1897,  228. 
1898,474,  §  11. 
1899,442, 
§§  11,  12,  16. 
1901,275:422. 
§§  1,  11.  12,  10. 
R.  L.  119. 
§§  1,6,7,11. 
1911,628,  §  S, 
subs.  1. 
175  Mass.  396. 
181  Mass.  111. 
206  Mass.  131, 
158,  168. 
215  Mass.  185. 


Certificates, 

etc. 

1899. 

442, 

§11- 

1901, 

275; 

442, 

§11. 

R.  L. 

119, 

§6. 

1911, 

628, 

§  s. 

2  Op. 

A.G 

i.  212. 

Section  19.  Every  society  may  provide  for  the  pajTnent  of  death  1 
benefits,  and  may  provide  for  the  pajonent  of  benefits  in  case  of  tempo-  2 
rary  or  permanent  physical  disability,  either  as  the  result  of  disease,  3 
accident  or  old  age;  p^o^•ided,  that  the  period  of  life  at  wliich  the  pay-  4 
ment  of  benefits  for  disability  on  account  of  old  age  shall  commence  5 
shall  not  be  under  seventy  years.  Such  society  may  give  a  member,  6 
when  permanently  disabled,  or  on  attaining  the  age  of  seventy,  all  or  7 
such  portion  of  the  face  value  of  his  certificate  as  the  by-laws  of  the  8 
society  may  provide;  provided,  that  this  chapter  shall  not  prevent  the  9 
issuing  of  benefit  certificates,  for  a  term  of  years  less  than  the  whole  10 
of  life,  which  are  payable  upon  the  death  or  permanent  disability  of  the  11 
member  occurring  within  the  term  for  which  the  benefit  certificate  is  12 
issued.  Such  society  may,  upon  written  application  of  a  member,  accept  13 
a  part  of  the  periodical  contributions  for  mortuary  purposes  in  cash  and  14 
charge  the  remainder,  not  exceeding  one  half  of  the  periodical  contri-  15 
butions,  against  the  certificate,  with  interest  payable  or  compounded  16 
annually  at  a  rate  not  lower  than  four  per  cent  per  annum;  provided,  17 
that  this  privilege  shall  not  be  exercised  except  by  societies  which  have  18 
readjusted  or  may  hereafter  readjust  their  rates  of  contributions,  and  19 
then  only  as  to  contracts  affected  by  such  readjustment,  and  provided,  20 
further,  that  the  yearly  amount  and  the  amount  in  the  aggregate  of  21 
such  charges  against  the  certificates  of  members,  including  interest  22 
charged,  as  cannot  be  collected  on  account  of  the  lapsing  of  members  23 
against  whose  certificates  such  charges  have  been  made,  shall  be  stated  24 
in  the  records  of  the  proceedings  of  the  annual  or  other  regular  meet-  25 
ings  of  the  society.  Such  society  providing  on  January  first,  nineteen  26 
hundred  and  twelve,  for  tombstones  to  the  memory  of  deceased  members  27 
may  continue  such  provision,  but  not  at  an  expense  in  excess  of  one  28 
hundred  dollars  for  any  member.  29 

Section  20.  A  certificate  issued  by  any  society  shall  specify  the  1 
amount  of  death  benefit  provided  thereby;  and  the  certificate,  the  2 
charter  or  articles  of  organization,  or,  if  it  is  a  voluntary  association,  3 
the  articles  of  association,  the  constitution  and  by-laws  of  the  society  4 
and  the  application  for  membership  and  medical  examination,  if  any,  5 
signed  by  the  applicant,  and  all  amendments  to  each  thereof,  shall  con-  6 
stitute  the  agreement  between  the  society  and  the  members;  and  copies  7 
of  the  same,  certified  by  the  secretary  of  the  society  or  corresponding  8 
officer,  shall  be  received  in  evidence  of  the  terms  and  conditions  thereof.  9 
Any  changes,  additions  or  amendments  to  said  charter,  articles  of  in-  10 
corporation,  or  articles  of  association,  constitution  or  by-laws  duly  11 
made  or  enacted  subsequent  to  the  issuance  of  a  benefit  certificate  shall  12 
bind  the  member  and  his  beneficiaries,  and  shall  govern  and  control  the  13 
agreement  in  all  respects  in  the  same  manner  as  if  such  changes,  ad-  14 
ditions  or  amendments  had  been  made  prior  to  and  were  in  force  at  the  15 
time  of  the  application  for  membership.  The  foregoing  provision  shall  16 
be  incorporated  in  substance  in  every  benefit  certificate  hereafter  issued.  17 


ClIAP.    176.]  FRATERNAL   BENEFIT   SOCIETIES.  2033 

1  Section  21.     Death  benefits  shall  be  payable  only  to  the  wife,  hus-  Beneficiaries, 

2  band,  relative  by  blood,  father-in-law,  mother-in-law,  son-in-law,  daugh-  1877, 204,  §  1. 

3  ter-in-law,    stepfather,    stepmother,    stepchildren,    betrothed,    adopted  rsfiVs^s.^  *' 

4  children  or  adoptive  parents,  or  to  persons  dependent  upon  the  mem-  figs',  429,  §  s. 

5  ber;   provided,  that  if  after  the  issuance  of  the  original  certificate  the  {fg^'ljs'- 
G  member,  his  wife  or  minor   children  shall  become  dependent  upon  an  367,  §  s. 

7  incorporated    charitable  institution   or   upon  a  home  situated  within  isos!  474.' §11. 

8  the  commonwealth  and  incorporated  under  the  laws  thereof  and  main-  §§  li,  13.' 

9  tained  and  supported  by  any  secret  fraternity  or  order  for  the  care  and  l22^\Yii, 

10  maintenance  of  its  aged,  infirm,  indigent  or  unfortunate  members,  or  Ji^'L'^/fg 

11  for  the  care  and  support  of  a  wife  or  widow  of  such  a  member,  or  for  f|j'j'|,g  .g 

12  the  care,  support  and  education  of  minor  children  of  such  members  or  i9i3!6i7;ii. 

13  of  deceased  members,  the  member  shall  have  the  privilege,  with  the  i42Massl224; 

14  consent  of  the  society,  of  making  such  institution  or  home  his  bene-  146MS217; 

15  ficiary  to  the  full  amount  becoming  due  or  payable  under  said  certifi-  iMMass. 272. 
1(3  cate,  or  to  the  extent  of  the  amount  disbiused  for  the  benefit  of  said  JfgMassIsi' 

17  member,  his  wife,  widow  or  child,  by  such  charitable  institution  or  f^s 

„    ,  ,  p  I.  •  1  !•     1       •  158  Mass.  224, 

18  home  at  the  rate  or  average  cost  or  mauitenance  or  care  thereof  durmg  322. 

19  the  period  such  member,  his  wife,  widow  or  children  shall  be  so  cared  ns  Mass!  25! 

20  for,  together  with  any  sums  expended  by  such  institution  or  home  for  loi'Mass.  477. 

21  assessments,  dues,  tax  or  other  pajinents  by  reason  of  such  benefit  gog  ^j^gg;  J3}; 

22  certificate  and,  subject  to  the  limitation  of  this  section,  another  person  ip^f^j^-j  224 

23  as  beneficiary  of  the  remainder.     Within  the  above  restrictions  each  222  Mass.  237. 

1  1111  1  -1  1      *  1*1  n    •  IP  223  Mass.  237. 

24  member  shall  have  the  right  to  designate  his  beneficiary,  and  from  234  Mass.  299. 

25  time  to  time  have  the  same  changed  in  accordance  with  the  by-laws 

26  of  the  society;   and  no  beneficiary  shall  have  or  obtain  any  vested  in- 

27  terest  in  the  said  benefit  until  the  same  has  become  due  and  payable 

28  upon  the  death  of  the  said  member;    provided,  that  any  society  may 

29  by  its  by-laws  limit  the  scope  of  beneficiaries  within  the  above  classes. 

30  If  a  benefit  certificate  has  been  lawfully  issued  and  the  beneficiary 

31  therein  named,  and  the  husband,  wife,  betrothed,  child,  adopted  child, 

32  parent,  adoptive  parent,  or  persons  dependent  upon  the  member  named 

33  in  the  benefit  certificate  have  all  died,  the  member,  with  the  consent  of 

34  the  officers  of  the  society  and  under  such  rules  as  they  may  prescribe, 

35  may  have  any  other  person  substituted  as  beneficiary  therein.    No  con- 

36  tract  under  this  chapter,  except  where  an  incorporated  charitable  in- 

37  stitution  or  home  is  made  beneficiary  as  aforesaid,  shall  be  valid  which 

38  shall  be  conditioned  upon  an  agreement  or  understanding  that  the  per- 

39  son  to  whom  the  death  benefit  is  made  payable  shall  pay  the  periodical 

40  or  other  contributions  of  the  member. 

1  Section  22.    Any  society  may  provide  in  its  by-laws  that  a  part  of  ^"J^gj„ 

2  the  amount  payable  as  a  death  benefit  may  be  used  to  pay  the  funeral  i9i".  w". 

3  expenses  of  the  insured;    provided,  that  the  amount  so  paid  shall  not 

4  exceed  one  hundred  dollars,   and  shall  be  deducted  from  the  amount 

5  payable  as  a  death  benefit. 

1  Section  23.     Any  society  operating  on  the  lodge  system  may  pro-  Death  benefits 

2  vide  in  its  constitution  and  by-laws,  in  addition  to  other  benefits  pro-  children"' 

3  vided  for  therein,  for  the  pajonent  of  death  or  annuity  benefits  upon  ^®^^'  ^^^-  ^  '• 

4  the  lives  of  children  between  the  ages  of  two  and  eighteen  years  at  the 

5  next  birthday,  for  whose  support  and  maintenance  a  member  of  the 

6  society  is  responsible.    Any  such  society  may  at  its  option  organize  and 


2034 


FRATERXAL   BENEFIT   SOCIETIES. 


[Chap.  176. 


operate  branches  for  such  children,  and  membership  in  local  lodges  and  7 
initiation  therein  shall  not  be  required  of  such  chiklren,  nor  shall  they  8 
have  any  voice  in  the  management  of  the  society.  The  total  death  9 
benefits  payable  as  above  provided  shall  in  no  case  exceed  the  follow-  10 
ing  amounts  at  ages  at  the  next  birthday  after  death,  respectively,  11 
as  follows:  two,  thirty-four  dollars;  three,  forty  dollars;  four,  forty-  12 
eight  dollars;  five,  fifty-eight  dollars;  six,  one  hundred  and  forty  dollars;  13 
seven,  one  hundred  and  sixty-eight  dollars;  eight,  two  hundred  dollars;  14 
nine,  two  hundred  and  forty  dollars;  ten,  three  hundred  dollars;  eleven,  15 
three  hiuidred  and  eighty  dollars;  twelve,  four  hundred  and  sixty  dol-  16 
lars;  thirteen  to  fifteen,  five  hundred  and  twenty  dollars;  and  sixteen  17 
to  eighteen  years,  where  not  otherwise  authorized  by  law,  six  hundred  18 
dollars.  19 


Medical  ex- 
amination of 
children,  etc. 
1917,  128.  §  2. 


Section  24.  No  death  benefit  certificate  as  to  any  child  shall  take  1 
effect  until  after  medical  examination  or  inspection  by  a  licensed  medi-  2 
cal  practitioner,  in  accordance  with  the  by-laws  of  the  society,  nor  shall  3 
any  such  benefit  certificate  be  issued  unless  the  society  shall  simul-  4 
taneously  put  in  force  at  least  fi\'e  hundred  such  certificates,  on  each  5 
of  which  at  least  one  assessment  has  been  paid,  nor  where  the  number  6 
of  lives  represented  by  such  certificates  falls  below  five  hundred.  The  7 
death  benefit  contributions  to  be  made  upon  such  certificate  shall  be  8 
based  upon  the  Standard  Industrial  ^Mortality  Table  or  the  English  9 
Life  Table  Number  Six,  with  a  rate  of  interest  not  greater  than  four  10 
per  cent  per  annum,  or  upon  a  higher  standard;  provided,  that  contri-  11 
butions  may  be  waived  or  returns  may  be  made  from  any  surplus  held  12 
in  excess  of  reserve  and  other  liabilities,  as  provided  in  the  by-laws;  13 
and  pro\ided,  further,  that  extra  contributions  shall  be  made  if  the  14 
reserves  provided  for  in  the  following  section  become  impaired.  15 


Reserves  on 
children's 
certificates. 
1917,  128,  §  3. 


Section  25.  Any  society  entering  into  insurance  agreements  under  1 
section  twenty-three  shall  maintain  on  all  such  contracts  the  reserve  2 
required  by  the  standard  of  mortality  and  interest  adopted  by  the  3 
society  for  computing  contributions  as  provided  in  section  twenty-four;  4 
and  the  funds  representing  the  benefit  contributions  and  all  accretions  5 
thereto  shall  be  kept  as  separate  and  distinct  funds,  independent  of  the  6 
other  funds  of  the  society,  and  shall  not  be  liable  for  nor  used  for  pay-  7 
ment  of  the  debts  and  obligations  of  the  society  other  than  the  benefits  8 
herein  authorized;  provided,  that  a  society  may  provide  that  when  a  9 
child  reaches  the  minimum  age  for  initiation  into  membership  in  such  10 
society,  any  benefit  certificate  issued  under  sections  twenty-three  to  11 
twenty-eight,  inclusive,  may  be  surrendered  for  cancellation  and  ex-  12 
changed  for  any  other  form  of  certificate  issued  by  the  society;  pro-  13 
vided,  also,  that  such  surrender  will  not  reduce  the  nunilier  of  lives  14 
Insured  In  any  children's  branch  below  five  hundred,  and  upon  the  15 
issuance  of  such  new  certificate  any  reserve  upon  the  original  certifi-  16 
cate  herein  provided  for  shall  be  transferred  to  the  credit  of  the  new  17 
certificate.  Neither  the  person  who  originally  made  application  for  IS 
benefits  on  account  of  such  child,  nor  the  beneficiary  named  in  such  19 
original  certificate,  nor  the  person  who  paid  the  contribution  shall  have  20 
any  vested  right  in  such  new  certificate,  the  free  nomination  of  a  bene-  21 
ficlary  under  the  new  certificate  being  left  to  the  child  so  admitted  to  22 
benefit  membership.  23 


Ch.\P.    176.]  FRATERNAL   BENEFIT   SOCIETIES.  2035 

1  Section  26.     An  entirely  separate  financial  statement  of  the  busi-  fgf^'Jg^gj"''  °^ 

2  ness  transactions,  and  of  assets  and  liabilities  arising  therefrom,  shall  be  connected  With 

3  made  in  its  annual  statement  to  the  commissioner  by  any  society  avail-  inaurance, 

4  ing   itself   of    sections   twenty-three   to   twenty-eight,    inclusive.      The        •  -  .  s   ■ 

5  separation  of  assets,  funds  and  liabilities  required  hereby  shall  not  be 

6  terminated,  rescinded  or  modified,  nor  shall  the  funds  be  diverted  for 

7  any  use  other  than  as  specified  in  the  preceding  section,  as  long  as  any 

8  certificates  issued  under  sections  twenty-three  to  twenty-eight,  inclu- 

9  sive,  remain  in  force;  and  this  requirement  shall  be  recognized  and  en- 

10  forced  in  any  liquidation,  reinsurance,  merger  or  other  change  in  the 

11  condition  or  status  of  the  society. 

1  Section  27.     Any  society  may  provide  in  its  by-laws  and  in  the  cer-  Payments  to 

2  tificate  issued  under  sections  twenty-three  to  twenty-eight,  inclusive,  chMren's"  ' 

3  for  specified  paj-ments  on  account  of  the  expense  or  general  fund,  which  Jg'i'y^ilsl^j  s. 

4  may  be  mingled  with  the  general  fund  of  the  society  or  not  as  its  con- 

5  stitution  and  by-laws  may  provide. 

1  Section  28.     In  case  of  the  termination  of  membership  in  the  society  Continuation 

2  by  the  person  responsible  for  the  support  of  any  child  on  whose  ac-  Certificate. 

3  count  a  certificate  has  been  issued  under  sections  twenty-three  to  twenty-  ^^^^'  ^"®'  ^  ®' 

4  eight,  inclusive,  the  certificate  may  be  continued  for  the  benefit  of  the 

5  estate  of  the  child,  or  for  the  benefit  of  any  other  person  responsible 

6  for  the  support  and  maintenance  of  such  child,  provided  the  contribu- 

7  tions  are  continued. 


1  Section  29.     The  beneficiary  under  a  certificate  issued  by  any  so-  Action  by 

2  ciety  may  maintain  an  action  thereon  in  his  own  name.  """^  "'^'^ 

1918,  257,  §  371.  1919,  o.  1920,  2. 


1  Section  30.     Money  or  other  benefit,  charity  or  relief  or  aid,  to  be  Money,  etc 

2  paid,  provided  or  rendered  by  any  society,  shall  not  be  attached  or  taken  attachmen\° 

3  upon  execution  or  other  process  or  by  operation  of  law  to  pay  any  debt  ^'s.'iii'it 

4  or  liability  of  a  member  or  beneficiary,  or  of  any  other  person  who  may  If^^'g^^' 

5  have  a  right  thereunder,  either  before  or  after  payment. 

1888,429.5  1.5.  R.  L.  119,  §17.  139  Mass.  473. 

1894,  307,  §  14.  1903,  332.  144  Mass.  306. 

1.S98.  474,  I  17.  1909.  407.  lo9  Mass.  259. 

1899,  442,  §  22.  1910.  339.  175  Mass.  396. 

1901,  422,  §  22.  1911.  628,  §  20.  202  Mass.  549. 

1  Section  31.     Except  as  provided  in  sections  twenty-three  to  twenty-  Beneficial 

2  eight,  inclusive,  any  society  may  admit  to  beneficial  membership  any  igTiVoS,  §  7. 

3  person,  not  less  than  sixteen  and  not  more  than  sixty  years  of  age,  who 

4  has  been  examined  by  a  legally  ciualified  physician  if  the  examination 

5  has  been  supervised  and  approved  in  accordance  with  the  by-laws  of 

6  the  society;  provided,  that  any  member  of  such  society  who  shall  apply 

7  for  a  certificate  providing  for  benefits  on  account  of  disability  from 

8  sickness  or  injury,  or  death  by  accident  only,  need  not  be  required  to 

9  pass  a  medical  examination  therefor.     This  section  shall  not  prevent 
10  such  society  from  accepting  general  or  social  members. 

1  Section  32.     Every  society  may,  subject  to  this  chapter,  make  a  Constitution 

2  constitution  and  by-laws  for  its  government,  admission  of  members,  i888,429,"^^'5. 

3  management  of  its  affairs,  and  the  fixing  and  readjusting  of  the  rates  \lll[  l^l]  1 1; 

4  and  contributions  of  its  members  from  time  to  time,  and  may  amend  }|oi,' 422!  1 1' 


2036 


FIL^TERNAL  BENEFIT   SOCIETIES. 


[Ch.\p.  176. 


its  constitution  and  by-laws,  and  it  shall  have  such  other  powers  as 
are  necessary  or  incidental  to  carry  into  effect  its  objects  and  purposes. 


R.  L.  119,  §  2. 
1911,628,  §  12, 
div.  g. 

1  Op!  a"  G.  411.  The  constitution  and  by-laws  may  prescribe  the  ofiBcers  and  elected 
p-   ■    ■    '■  members  of  standing  committees,  who  may  be  ex  ofEciis  directors  or 


other  officers  corresponding  thereto. 


Where  meetings 
mav  be  held. 
1S9S,  474.  §  10. 
I.sn9,  442,  I  10. 
1901,422,  I  10. 
R.  L.  119,  §5. 
1911,  62S,  §  IS. 


Section  3.3.  Any  domestic  society  may  provide  that  the  meetings 
of  its  legislative  or  governing  body  may  be  held  in  any  state  or  province 
wherein  such  society  has  subordinate  branches,  and  all  business  trans- 
acted at  such  meetings  shall  be  as  valid  in  all  respects  as  if  such  meetings 
were  held  in  this  commonwealth.  But  its  principal  office  shall  be  situ- 
ated in  this  commonwealth. 


Subordinate 
bodies  may 
not  waive  pro- 
vision of  con- 
stitution, etc. 
1911,  628,  §  19. 


Section  34.  The  constitution  and  by-laws  of  the  society  shall  be 
binding  on  it,  on  every  member  thereof,  and  on  all  beneficiaries  of  mem- 
bers, and  shall  provide  that  no  subordinate  body  nor  any  of  its  subor- 
dinate officers  or  members  shall  have  power  or  authority  to  waive  any 
provision  thereof,  and  otherwise  there  shall  be  no  waiver  excepting  as 
the  constitution  and  by-laws  of  the  supreme  body  shall  specifically 
permit. 


Copies  of 
amendments 
to  be  filed. 
1899,442,  §21. 
1901,422,  §21. 
R.  L.  119,  I  16. 
1907.472. 
1910.296. 
1911,  628,  §  21. 


Section  35.  The  recording  officer  of  every  society  shall  file  with  the 
commissioner  a  duly  certified  copy,  in  English,  of  all  amendments  of  or 
additions  to  its  constitution  and  by-laws,  within  ninety  days  after  their 
adoption.  Printed  copies  of  the  constitution  and  by-laws,  as  amended, 
changed  or  added  to,  certified  by  the  secretary  or  corresponding  officer 
of  the  society,  shall  be  prima  facie  evidence  of  the  same  and  of  the 
legal  adoption  thereof. 


Examination 
of  domestic 
societies. 
1880,  196,  §  2. 
P.  S.  11.5,  §  12. 
1892,  435,  §  1, 
1895,340.  §  1. 
1898,474,  §  19. 
1899,  442,  I  24. 
1901.422, 
5§  19,  24. 
R.  L.  119, 
H  15,  19. 
1911,  628, 
§§  24.  25. 
1.59  Mass.  9. 
196  Mass.  151. 
206  Mass.  139. 


Section  36.  The  commissioner  or  any  person  designated  by  him  1 
may  examine  the  affairs  of  any  domestic  society.  He  may  employ  2 
assistants  for  the  purpose  of  such  examination,  and  he  or  any  person  3 
designated  by  him  shall  ha\-e  free  access  to  all  the  books,  papers  and  4 
documents  relating  to  the  business  of  the  society,  and  may  summon  .5 
and  qualify  as  witnesses  on  oath  and  examine  its  officers,  agents  and  6 
employees,  and  other  persons  in  relation  to  the  affairs,  transactions  7 
and  condition  of  the  society.  8 

Whenever  after  examination  the  commissioner  is  satisfied  that  any  9 
domestic  society  has  failed  to  comply  with  any  provision  of  this  chap-  10 
ter,  or  is  exceeding  its  powers,  or  is  not  carrying  out  its  contracts  in  11 
good  faith,  or  is  transacting  business  fraudulently,  or  whenever  any  12 
domestic  society,  after  the  existence  of  one  year  or  more,  shall  ha\-e  13 
a  membership  of  less  than  four  hundred,  or  shall  determine  to  dis-  l-l 
continue  business,  the  commissioner  may  present  the  facts  relating  15 
thereto  to  the  attorney  general,  who  shall,  if  he  deems  the  circum-  16 
stances  warrant,  begin  a  quo  warranto  proceeding  in  the  supreme  17 
judicial  court,  and  the  court  shall  thereupon  notify  the  officers  of  the  IS 
society  of  a  hearing,  and  if  it  then  appears  that  the  society  should  be  19 
dissolved,  the  society  shall  be  enjoined  from  carrying  on  any  further  20 
business,  and  some  person  shall  be  appointed  receiver,  and  shall  proceed  21 
at  once  to  take  possession  of  its  books,  papers,  moneys,  and  other  assets,  22 
and  shall  forthwith,  under  the  direction  of  the  court,  proceed  to  close  23 
its  affairs,  and  to  distribute  its  funds  to  those  entitled  thereto.  24 


Chap.  176.]  fraternal  benefit  societies.  2037 

25  No  such  proceeding  shall  be  begun  by  the   attorney  general  until 

26  after  notice  has  been  duly  served  on  the  chief  executive  officers  of  the 

27  society  by  the  commissioner  and  a  reasonable  opportunity  given  to  it, 

28  on  a  date  to  be  named  in  the  notice,  to  show  cause  why  such  proceedings 

29  should  not  be  begun,  nor  shall  such  proceedings  be  entertained  unless 

30  brought  by  the  attorney  general. 

1  Section  37.     After  an  examination  of  any  society,  either  domestic  Commissioner 

2  or  foreign,  has  been  begun,  the  commissioner  shall  make  public  no  pSbii?  fiJiandai 

3  financial  statement,  report  or  finding  affecting  the  status,  standing  or  pend'ng'ex- 

4  rights  of  the  society  until  a  copy  thereof  shall  have  been  served  upon  ?3n,''62'8!'§^27. 

5  the  society  at  its  home  office,  and  the  society  shall  have  been  afforded 

6  a  reasonable  opportunity  to  be  heard  regarding  such  financial  state- 

7  ment,  report  or  finding;    but  the  commissioner  may  use  such  facts  as 

8  come  to  his  knowledge  for  the  purpose  of  securing  an  injunction  as  pro- 

9  vided  in  the  preceding  section. 

1  Section  38.    Every   society   shall   annually,   on   or   before   March  Annual 

2  first,  file  with  the  commissioner,  in  such  form  as  he  may  require,  a  state-  is8o,"96,'§  i. 

3  ment  on  oath  of  its  president,  secretary,  treasurer  and  chief  accountant,  fssl'.Vss,!"' 

4  or  corresponding  officers,  of  its  condition  and  standing  on  December  is9o!34i!  1 1"' 
.5  thirty-first  next  preceding,  and  of  its  transactions  for  the  year  ending  i|^|' |^J'  |  Ji- 

6  on  that  date;  and  also  shall  furnish  such  other  information  as  the  com-  JSJl^'lp'  I  ^^■ 

7  missioner  may  deem  necessary  to  a  proper  exliibit  of  its  business  and  r.  l.'ii9,'|i4! 

8  plan  of  working.     The  commissioner  may  at  other  times  require  any  div.  a.    ' 

9  further  statement  relating  to  such  society  which  he  may  deem  necessary. 

1  Section  39.     In  addition  to  the  annual  statement  required  by  the  Reports  by 

2  preceding  section,  every  society  on  the  lodge  system  authorized  to  pay  fodges''yste''m.  * 

3  benefits  in  the  commonwealth  upon  the  death  of  its  members,  except  dfv.^k  ^*'  ^  ^"" 

4  those  societies  which  do  not  pay  benefits  for  death  from  natural  causes,  op'^^\^G.'  ^  ^' 

5  shall  annually  report  to  the  commissioner  a  valuation  of  its  certifi-  '■^^^^^  so. 

6  cates  providing  for  death  benefits  in  force  on  December  thirty-first  next 

7  preceding.    The  report  shall  show,  as  contingent  liabilities,  the  present 

8  mid-year  value  of  the  death  benefits  promised  in  the  outstanding  con- 

9  tracts  of  the  society,  and  as  contingent  assets,  the  present  mid-year 

10  value  of  the  future  net  mortuary  contributions  provided  in  the  con- 

11  stitution  and  by-laws  as  the  same  are  in  practice  actually  collected, 

12  not  including  therein  any  value  for  the  right  to  make  extra  assessments. 

13  At  the  option  of  any  such  society,  in  lieu  of  the  above,  the  valuation 

14  may  show  the  net  mid-year  value  of  the  outstanding  contracts;  and 

15  said  net  value,  when  computed  in  case  of  monthly  contributions,  may 

16  be  the  mean  of  the  terminal  values  for  the  end  of  the  preceding  and  of 

17  the  current  insurance  years,  the  right  to  make  extra  assessments  being 

18  excluded  from  consideration.     The  valuation  shall  be  certified  by  a 

19  competent  accountant  or  actuary,  or  at  the  request  and  expense  of  the 

20  society,  verified  by  the  actuary  of  the  department  of  insurance  of  the 

21  home  state  of  the  society,  and  shall  be  filed  with  the  commissioner  on 

22  or  before  April  thirtieth  next  after  the  submission  of  the  last  preceding 

23  annual  statement.    The  legal  minimum  standard  of  valuation  shall  be 

24  the  National  Fraternal  Congress  Table  of  ]\Iortality  as  adopted  by  the 

25  National  Fraternal   Congress    August   twenty-third,  eighteen   hundred 

26  and  ninety-nine;   or,  at  the  option  of  the  society,  any  higher  mortality 

27  table;    or,  at  its  option,  it  may  use  a  mortality  table  based  on  the 


2038  FRATERNAL  BENEFIT   SOCIETIES.  [ChAP.    176. 

society's  own  experience  of  at  least  twenty  years,  and  covering  not  28 
less  than  one  hundred  thousand  lives,  with  interest  assumption  not  29 
higher  than  four  per  cent  per  annum,  whichever  mortality  table  is  30 
adopted.  E\ery  such  report  shall  set  forth  clearly  and  fully  the  mor-  31 
tality  and  interest  basis  and  the  method  of  valuation.  Any  society  32 
providing  for  disability  or  accidental  death  benefits,  or  both,  shall  keep  33 
the  net  contributions  for  such  benefits  in  a  fund  separate  and  apart  34 
from  all  other  benefit  funds  and  from  expense  funds.  The  valuation  35 
herein  provided  for  shall  not  be  considered  or  regarded  in  any  action  36 
that  may  arise  as  a  test  of  the  financial  solvency  of  the  society,  but  37 
each  society  shall  be  held  to  be  legally  sohent  so  long  as  the  funds  in  38 
its  possession  are  equal  to  or  in  excess  of  its  liabilities,  not  including  in  39 
the  term  "liabilities"  any  charge  for  reserve  computed  as  in  this  section  40 
required.  41 

Such  report  of  valuation  and  an  explanation  of  the  facts  concerning  42 
the  condition  of  the  society  thereby  disclosed  shall  be  sent  to  each  43 
member  of  the  governing  body  of  the  society  not  later  than  June  first  44 
of  each  year;  or  in  lieu  thereof,  such  report  of  valuation  and  showing  45 
of  the  society's  condition  as  thereby  disclosed  may  be  published  in  the  46 
society's  official  paper,  and  the  issue  containing  the  same  shall  be  mailed  47 
to  each  beneficiary  member  of  the  society.  48 

S''ca"of°^  Section  40.     If  the  stated  periodical  contributions  of  the  members     1 

class'of'^^"        ^^  ^"*^^  society  are  insufficient  to  pay  all  reported  death  and  disability    2 

members  at       claims  lu  fuU,  and  to  provids  for  the  creation  and  maintenance  of  the    3 

1890, 341,  §'i.    funds  required  by  its  by-laws  or  by  this  chapter,  additional  contributions     4 

1894!  367,  §9.    or  additional,  increased  or  extra  rates  of  contribution  shall  be  collected     5 

isglitll',  I  u,'.  from  its  members  to  meet  the  deficiency,  and  the  by-laws  of  the  society     6 

r*l' 119,' I  ii'  shall  so  provide;  and  such  by-laws  may  provide  that  upon  the  written     7 

d?v  ^b^~^'  ^  ^"'  application  or  consent  of  the  member  his  certificate  may  be  charged    8 

1920,217.         with  its  proportion  of  any  deficiency  disclosed  by  valuation,  with  in-    9 

terest  not  exceeding  five  per  cent  per  annum.  10 

In  rerating  its  members  or  for  the  purpose  of  placing  itself  on  a  sounder  11 

financial  basis,  any  domestic  society  and  any  foreign  society  now  ad-  12 

mitted  to  this  commonwealth,  if  it  be  not  in  conflict  with  the  laws  of  its  13 

domicile,  may,  if  "legally  solvent"  as  defined  in  the  preceding  section,  14 

establish  by  its  constitution  and  by-laws  a  separate  class  of  members  15 

who  shall  make  mortuary  contributions  on  the  basis  prescribed  in  section  16 

eight,  to  which  class  all  new  members  who  from  time  to  time  join  the  17 

society  shall  be  assigned,  unless  such  new  member  or  members  shall  18 

otherwise  elect,  and  all  present  members  may  at  their  option  be  trans-  19 

ferred  at  the  prescribed  rates  for  such  class.     The  mortuary  contribu-  20 

tions  of  such  class  shall  be  placed  in  a  separate  account  and  used  only  21 

for  the  benefit  of  the  members  of  that  class  or  of  their  beneficiaries.     In  22 

case  of  a  society  which  has  established  such  higher  rate  class  whose  con-  23 

tributions  are  held  and  used  as  herein  set  forth  the  "  additional  contribu-  24 

tions"  or  "extra  rates''  specified  in  this  section  shall  be  required  only  of  25 

the  members  of  the  class  or  classes  respectively  where  the  deficiency  in  26 

contributions  is  apparent,  and  each  class  shall  provide  for  its  own  de-  27 

ficiency.     Any  class  of  a  domestic  society  failing  so  to  do  shall  be  subject  28 

to  the  receivership  provisions  set  forth  in  section  thirty-six.     A  foreign  29 

society  which  has  legally  established  such  a  class  in  its  home  state  and  30 

whose  constitution  or  by-laws  require  the  segregation  and  use  of  the  31 

mortuarv  contributions  of  its  members  as  herein  set  forth  mav  be  ad-  32 


ClL\P.    176.]  FRATERNAL  BENEFIT   SOCIETIES.  2039 

33  mitted  to  this  commonwealth  with  respect  to  such  class  upon  compliance 

34  with  the  laws  of  this  commonwealth  not  in  conflict  with  this  provision. 

1  Section  41.     No  foreign  society  shall  transact  any  business  in  the  Foreign 

2  commonwealth  without  a  license  from  the  commissioner.     Every  such  ilsl.^g,  §11. 

3  society  applying  for  such  a  license  shall  file  with  the  commissioner  a  ism! la' 

4  duly  certified  copy  of  its  charter  or  articles  of  association;    a  copy  of  Isgl;  367,' 1 16 

5  its  constitution  and  by-laws,  certified  by  its  secretary  or  corresponding  }g9|'4jo' |  }|' 

6  officer;    a  power  of  attorney  to  the  commissioner,  as  provided  in  the  i^ooiiss 

7  following  section;   a  statement  of  its  business,  on  oath  of  its  president  r.  l.'  no!  §  13'. 

8  and  secretary,  or  corresponding  officers,  in  the  form  required  by   the  i9iii62si 

9  commissioner,  duly  verified  by  an  examination  made  by  the  supervising  i92a'257,  §2. 

10  insurance  official  of  its  home  state  or  other  state  satisfactory  to  the  }c|  Mass!  391' 

11  commissioner;    a  copy  of  its  certificate  of  membership;    a  certificate  ^ is  m^ss^ 204^ 

12  from  the  proper  official  of  its  home  state,  territory,  district  or  country  2  0p.A.G.  524. 

13  that  the  society  is  legally  organized;    and  the  society  shall  show  that 

14  the  benefits  are  provicled  for  by  periodical  or  other  payments  by  persons 

15  holding  similar  contracts,  and  that  its  assets  are  invested  in  accordance 

16  with  the  laws  of  the  state  or  country  where  it  is  organized,  and  that 

17  it  has  the  qualifications  reciuired  of  domestic  societies  on  the  lodge 

18  system  incorporated  under  this  chapter;  provided,  that  a  society  which 

19  grants  benefits  for  disability  arising  from  accidental  injury  or  from  sick- 

20  ness  shall  be  required  to  show  that  it  has  accumulated  funds,  usable  only 

21  for  the  payment  of  such  benefits  and  in  excess  of  accrued  claims  for  such 

22  benefits,  not  less  in  amount  than  three  monthly  contributions  or  one 

23  quarterly  contribution  from  members  entitled  to  such  benefits,  and  shall 

24  be  required,  as  a  condition  for  the  maintenance  of  its  authority  to  do 

25  business  in  this  commonwealth,  to  maintain  at  all  times  after  admission, 
2G  as  regards  disability  benefits,  funds  in  amount  as  above  set  forth;  and 

27  shall  furnish  the  commissioner  such  other  information  as  he  may  deem 

28  necessary  for  the  proper  exliibit  of  its  business  and  plan  of  working. 

29  Upon  compliance  with  these  requirements,  such  foreign  society  shall  be 

30  entitled  to  a  license  to  transact  business  in  the  commonwealth  until  July 

31  first  following,  and  such  license  shall,  upon  compliance  with  this  chapter, 

32  be  renewed  amuially,  but  in  all  cases  to  terminate  on  July  first  follow- 

33  ing;  except  that  it  shall  continue  in  full  force  and  effect  until  the  new  li- 

34  cense  is  issued  or  refused.    For  every  such  license  or  renewal  the  society 

35  shall  pay  to  the  commissioner  twenty  dollars.     When  the  commissioner 

36  refuses  to  license  any  society  or  revokes  its  authority  to  do  business  in 

37  the  commonwealth  as  provided  in  section  forty-three,  he  shall  reduce 

38  his  ruling,  order  or  decision  to  writing  and  file  the  same  in  his  office,  and 

39  shall  furnish  a  copy  thereof,  together  with  a  statement  of  his  reasons,  to 

40  the  officers  of  the  society  upon  request,  and  the  action  of  the  commis- 

41  sioner  shall  be  reviewable  by  proper  proceedings  in  any  court  of  com- 

42  petent  jurisdiction  in  the  commonwealth;  provided,  that  this  section  shall 

43  not  prevent  the  society  from  continuing  in  good  faith  all  contracts  made 

44  in  the  commonwealth  during  the  time  when  it  was  legally  authorized  to 

45  transact  business  therein. 

1  Section  42.     Every  foreign  society  applying  for  admission  to  the  Appointment 

2  commonwealth  shall,  by  duly  executed  instrument  filed  with  the  com-  sioMras'" 

3  missioner  as  provided  in  the  third  paragraph  of  section  one  hundred  ser^fce^o/""^ 

4  and  fifty-one  of  chapter  one  hundred  and  seventy-five,   appoint   the  ^ggg'^^ljo  §  13 

5  commissioner  as  its  attorney  for  the  service  of  process  upon  it,  which  J|9|'  f^^'  |  Jf 


2040 


FRATERNAL  BENEFIT  SOCIETIES. 


[ClI.\P.    176. 


1S99. 442.  §  20.  shall  be  served  in  accordance  with  said  paragraph  and  section  one 
R.  L.'  119]  §  13:  hundred  and  fifty-four  of  said  chapter.  All  process  against  a  foreign 
1907  4*71  society  shall  be  served  at  least  thirtv  days  before  the  return  day  named 

i9ii;62S,  §17.   thprein 

201  Mass.  557.     T^nerClIl. 


Revocation  of 
license  of  for- 
eign society. 
189S,  474,  5  19. 
1S99.  442,  I  24. 
1901.422.  §24. 
R.  L.  119.  I  19. 
1911,  62S,  §  28. 


Examination 
of  foreign 
societies. 
1880,  196,  I  2. 
P.  S.  115,  §  12. 
1901,422.  §  19. 
R.  L.  119,  §  15. 
1911,  628,  §  26. 


Section  43.     \^^len  the  commissioner,  on  investigation,  is  satisfied  1 

that  any  foreign  society  has  exceeded  its  powers,  or  has  failed  to  comply  2 

with  any  provision  of  this  chapter,  or  is  conducting  business  fraudu-  3 

lently,  or  is  not  carrying  out  its  contracts  in  good  faith,  he  shall  notify  4 

the  society  of  his  findings,  and  state  in  ^\Titing  the  grounds  of  his  dis-  5 

satisfaction,  and,  after  reasonable  notice,  shall  require  the  society,  on  a  6 

date  named,  to  show  cause  why  its  license  should  not  be  revoked.    If,  7 

on  the  date  named  in  said  notice,  such  objections  have  not  been  re-  8 

moved  to  the  satisfaction  of  the  commissioner,  or  the  society  does  not  9 

present  good  and  sufficient  reasons  why  its  authority  to  transact  busi-  10 

ness  in  the  commonwealth  should  not  at  that  time  be  revoked,  he  may  1 1 

revoke  the  authority  of  the  society  to  continue  business  therein.  12 

Section  44.  The  commissioner,  or  any  person  designated  by  him,  1 
may  examine  any  foreign  society  transacting  business  in  the  common-  2 
wealth  or  apph'ing  for  admission.  For  this  purpose  he  or  the  person  3 
designated  by  him  shall  have  the  powers  given  by  section  thirty-six  4 
relative  to  domestic  societies.  He  may  accept  in  lieu  of  such  examina-  5 
tion  the  examination  of  the  insurance  department  of  the  state  or  coun-  6 
try  where  the  society  is  organized.  The  actual  expenses  of  the  examiners  7 
making  any  such  examination  shall  be  paid  by  the  society,  upon  a  8 
statement  furnished  by  the  commissioner.  9 

If  any  such  society  or  its  officers  refuse  to  submit  to  such  examina-  10 
tion,  or  to  comply  with  the  provisions  of  this  section  relati\'e  thereto,  11 
the  authority  of  such  society  to  write  new  business  in  the  common-  12 
wealth  shall  be  suspended  or  its  license  refused  until  satisfactory  evi-  13 
dence  is  furnished  to  the  commissioner  relating  to  the  condition  and  14 
affairs  of  the  society,  and  during  such  suspension  the  society  shall  not  15 
write  new  business  in  the  commonwealth.  16 


Domestic 
societies  with 
limited  mem- 
bership, etc. 
1888,  429. 
§5  6,  10. 
1890,  341, 
§  U  400. 

1893,  47. 

1894,  60; 
367,  §§  6,  9. 

1895,  340, 
§§2,3. 

1897,  228. 

1898,  474, 
§§6,8,11,  12, 
16. 

1899,  442, 
§§6,8,  16,21. 
1901,  275;  422, 
§§6,8,  11,  16, 
21. 

R.  L.  119, 
§§3,4,6,  11, 
16. 

1907,  472. 

1908,  463,  §  1. 
1910,  296. 
1911,628,  §29, 
div.  a. 

206  Mass.  ISO. 
2  Op.  A.  G.  214. 


Section  45.  Domestic  fraternal  benefit  corporations  governed  by  1 
direct  vote  of  their  members  and  limiting  their  membership  as  pro-  2 
vided  in  section  four  and  domestic  fraternal  benefit  corporations  limiting  3 
their  membership  to  the  permanent  employees  of  cities  or  towns,  the  4 
commonwealth  or  the  federal  government,  and  not  paying  death  bene-  5 
fits,  but  paj-ing  annuities  or  gratuities  contingent  upon  disability  or  long  6 
service,  may  continue  to  transact  business  in  the  commonwealth.  Such  7 
corporations  and  like  societies  incorporated  under  this  chapter  shall  be  8 
governed  by  sections  four  to  eleven,  inclusive,  fourteen  and  twenty-one,  9 
so  far  as  the  same  are  applicable,  twenty-nine,  thirty,  thirty-two,  thirty  10 
six  to  thirty-eight,  inclusi^•e,  and  forty-eight  of  this  chapter  and  section  11 
five  of  chapter  fifty-nine,  and  in  addition  by  the  following  provisions:  12 
The  ofiicers  of  such  limited  corporations  shall  be  elected  by  ballot  by  13 
the  members  as  often  as  once  in  two  years.  Proxies  shall  not  be  used  14 
in  voting.  No  person  under  sixteen  shall  be  admitted  to  membership.  15 
The  recording  officer  of  such  a  corporation  shall  file  with  the  commissioner  16 
amendments  to  its  by-laws,  in  English,  within  thirty  da^■s  after  their  17 
adoption.  Such  equitable  assessments,  either  periodical  or  otherwise,  18 
shall  be  made  upon  the  members  as  shall  be  necessary  to  carry  out  the  19 


36. 

12. 
17. 


CH.4.P.    176.]  FRATERNAL  BENEFIT   SOCIETIES.  2041 

20  purposes  of  the  organization.     Paid  agents  shall  not  be  employed  in 

21  soliciting  or  procuring  members,  except  that  corporations  wliich  limit 

22  tlieir  certificate  holders  to  a  particular  fraternity  may  pay  members  for 

23  securing  new  members,  and  any  corporation  may  pay  local  collectors. 

24  No  corporation  formed  after  January  first,  nineteen  hundred  and  twelve, 

25  unless  it  confines  its  membership  to  that  of  a  particular  fraternity  in 

26  any  one  county  or  to  a  lodge  of  some  fraternity,  shall  contract  to  pay 

27  benefits  to  its  members  until  it  shall  satisfy  the  commissioner  that  it  has 

28  received  at  least  fi^-e  hundred  bona  fide  applications  for  membership. 

29  With  the  written  approval  of  the  commissioner  and  the  consent  of  each 

30  corporation  expressed  by  vote  at  a  duly  called  meeting,  any  corpora- 

31  tion  governed  by  this  section  may  transfer  its  membership  and  funds 

32  to  any  authorized  similar  corporation. 

1  Section  46.     A   domestic   society  which  limits   its  membership  as  Same  subject. 

2  provided  in  section  four,  or  which  limits  its  membership  to  the  members  exempt  from 

3  and  ex-members  of  any  social  organization  having  a  lodge  system  and  except  sections 

4  secret  form  of  work,  or  a  secret  order  or  fraternity  which  operates  on  igg's^'is^e! 

5  the  lodge  sj'stem  with  a  representative  form  of  government  and  grants  }g9f'44l'| 

6  insurance  benefits  as  incidental  only  to  the  work  of  the  order  or  frater-  J^oi.  *'--•  |  ij- 

7  nity,  or  a  purely  charitable  association  or  corporation  existing  on  May  laosi  332! 

8  twenty-third,  nineteen  hundred  and  one,  any  one  of  which  pays  a  death  1909!  407! 

9  or  funeral  benefit  limited  to  not  more  than  two  hundred  dollars,  dis-  loi?;  m';  628, 

10  ability  benefits  not  exceeding  ten  dollars  per  week,  or  any  or  all  of  such  f/ig, '^'n;''' 

11  benefits,  and  which  is  not  conducted  as  a  business  enterprise  or  for  1917^107 

12  profit,  and  a  subordinate  lodge  of  a  secret  fraternity  or  order  as  defined  215  Mass.  204. 

13  in  this  section  which  is  not  conducted  as  a  business  enterprise  or  for 

14  profit,  which  pays  death  benefits  to  families  or  dependents  of  deceased 

15  members  as  fixed  by  its  by-laws,  but  not  more  than  two  hundred  dollars 

16  if  the  lodge  membership  is  two  hundred  or  less,  and  if  over  two  hundred 

17  not  in  excess  of  the  amount  of  an  assessment  of  one  dollar  upon  each 

18  member  thereof  in  good  standing  at  the  time  of  the  death  of  the  member, 

19  may  transact  business  in  the  commonwealth  without  conforming  to  the 

20  provisions  of  this  chapter,  chapter  one  hundred  and  seventy-fi\e,  or 

21  chapter  one  hundred  and  seventy-seven,  except  this  section  and  sections 

22  twenty  and  twenty-nine. 

23  The  recording  officer  of  any  organization  subject  to  this  or  the  pre- 

24  ceding  section  failing  to  file  a  certified  copy  of  its  by-laws  with  the  com- 

25  missioner,  whenever  he  so  requires  in  writing,  and  also  such  organization, 

26  shall  be  punished  by  a  fine  of  not  more  than  two  hundred  dollars. 

27  Any  society  transacting  business  under  this  section  may,  in  the  event 

28  of  the  death  of  the  wife  of  a  member,  pay  to  said  member  a  part  of  the 

29  amount  payable  at  said  member's  death;   provided,  that  the  amount  so 

30  paid  shall  be  deducted  from  the  amount  payable  at  the  member's  death, 

31  and  that  the  total  amount  so  paid,  both  at  the  death  of  the  member  and 

32  of  the  member's  wife,  shall  not  exceed  the  amount  allowed  by  this  sec- 

33  tion  to  be  paid  at  the  death  of  a  member.    Any  such  society  may  also 

34  furnish  physicians  and  nurses  for  its  members  and  their  families. 

35  Any  such  limited  society  may  be  incorporated,  and  limited  fraternal 

36  beneficiary  corporations  may  be  formed,  in  the  manner  prescribed  in 

37  and  be  subject  to  sections  six,  seven,  nine,  ten,  thirty  and  thirty-two. 

1  Section  47.     Upon  an  information  in  equity  in  the  name  of  the  unlawful 

2  attorney  general  at  the  relation  of  the  commissioner,  the  supreme  judicial  brenj'oi'ned*^ 


2042 


ASSESSMENT   INSUKAJJCE. 


[Ch--^.  177. 


1S9S,  474.  §  19. 
1899,442,  6  24. 
1901,422.  §  24. 
R.  L.  119,  I  19. 
1910,  98. 
1912,  82. 


or  superior  court  may  enjoin  any  foreign  or  domestic  society  or  any  3 

officer,  organizer  or  agent  thereof  from  transacting  or  assisting  in  trans-  4 

acting,  within  the  commonwealtli,  the  business  of  paying  death  and  5 

disabihty  benefits  in  violation  of  this  chapter.  6 


Penalties  for 
f.ilse  state- 
ments. 

1888,429,  §  16. 
1894,307.  §  15. 
1898,474.  §  IS. 
1899,442,  §23. 
1901.422, 
§§  19,23. 
R.  L.  119. 
§§  14,  18. 
1911, 184; 
628,  I  31. 
1914,661,  §  1. 


Section  48.     Any  person,  officer,  member  or  examining  physician  of  1 

any  society  who  shall  kno\Yingly  or  wilfully  make  any  false  or  fraudu-  2 

lent  statement  or  representation  in  or  with  reference  to  any  application  3 

for  membership,  or  in  order  to  obtain  money  from  or  benefit  in  any  4 

society,  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  5 

more  than  five  hundred  dollars  or  by  imprisonment  in  jail  for  not  less  6 

than  one  month  or  more  than  one  year,  or  both;   and  any  person  wil-  7 

fully  making  a  false  statement  of  any  material  fact  or  thing  in  a  sworn  8 

statement  as  to  the  death  or  disability  of  a  certificate  holder  in  any  9 

society  for  the  purpose  of  procuring  pajvment  of  a  benefit  named  in  the  10 

certificate  of  such  holder  shall   be  guilty  of  perjury;  and   any   person  11 

who  wilfully  makes  any  false  statement  in  any  verified  report  or  declara-  12 

tion  on  oath  required  or  authorized  by  this  chapter  shall  be  punished  13 

by  a  fine  of  not  more  than  fi%'e  thousand  dollars  or  by  imprisonment  14 

for  not  more  than  two  and  one  half  years,  or  both.  15 


Penalty  for 

soliciting 

membership  in 

unauthorized 

society. 

1888,  429,  §  14. 

1894,  307,  §  13. 


Section  49.     Whoever   solicits   membership   for  or  in  any  manner  1 

assists  in  procuring  membership  in  a  society  not  authorized  to  do  busi-  2 

ness  in  the  commonwealth  shall  be  punished  by  a  fine  of  not  less  than  3 

fifty  nor  more  than  two  hundred  dollars.  4 


1898,  474, 

1899,  442, 


516. 
§21. 


1901,422,  ! 
R.  L.  119,  i 


1907,  472. 
1910,296. 


1911,  628,  §  31. 
206  Mass.  180. 


General 
penalty. 
1888,429,  §  is. 
1893.  321,  §  2. 
1894,367,  §  17. 


Section  50.  Whoever  violates  any  provision  of  this  chapter  for  1 
which  a  specific  penalty  is  not  provided  shall  be  punished  by  a  fine  of  2 
not  more  than  two  hundred  dollars.  i898, 474,  §  21.  3 

1899,  442,  §  26.  1901,  422,  §  2G.  E.  L.  119,  §  21.  1911,  628,  §  31. 

REFERENCES. 

Change  of  name  of  fraternal  benefit  society,  Chap.  155,  §  10. 

Exemption  from  taxation  of  fraternal  benefit  societies  operating  mider  the  lodge 
system,  etc..  Chap.  59,  §  5,  el.  7. 


CHAPTER    177. 

ASSESSMENT  INSURANCE. 


Sect. 

1.  Definitions. 

2.  Contract  of  assessment  insurance. 

3.  Chapter  175  applicable  to  assessment 

insurance. 

4.  Formation  of  companies. 

5.  Old  corporations  may  continue.     Time 

for  beginning  business  by  new  cor- 
poration. 
G.  Issuance  of  policies. 

7.  Reinsurance,  etc. 

8.  Amount  of  Ijenefit  to  be  specified.    Pay- 

ment of  l)enefit,  etc. 

9.  Investigation  by  commissioner,  and  re- 

ceivership. 

10.  Emergency  fund. 

11.  Liability  of  officers. 


Sect. 

12.  Company   exceeding  its   powers,   etc., 

may  be  enjoined. 

13.  Foreign  corporations  may  be  admitted. 

14.  Insurable  interest.    Age  limit.     Calls. 

15.  Copy  of  application  to  be  attached  to 

policy. 

16.  Annual     statement;     examination     of 

company's  affairs. 

17.  Benefits  not  subject  to  attachment. 
IS.  Penalty  for  false  statement. 

19.  Company  to  file  names  of  agents  with 

commissioner. 

20.  Soliciting    insurance    in    unauthorized 

company  forbidden. 

21.  Penalty. 


Chap.  177.]  assessment  insxjkance.  2043 

1  Section  1.     The  following  words  as  used  in  tliis  chapter  shall  have  Definitions. 

2  the  following  meanings:  §'§4V-4u.' 

3  "Commissioner",  the  commissioner  of  insurance. 

4  "Company"  or  "corporation",  a  corporation  authorized  under  this 

5  chapter  to  transact  insurance  on  the  assessment  plan  as  defined  in  sec- 

6  tion  two. 

1  -    Section  2.     Every  contract  whereby  a  benefit  is  to  accrue  to  a  person  Contract  of 

2  named  therein  tlirough  the  death  of  the  insured  by  accident  or  liis  physi-  fnlurlnr"' 

3  cal  disability  from  accident  or  sickness,  if  the  benefit  is  conditioned,  not  llooilii!  i  i! 

4  upon  fixed  payments  but  upon  the  collection  from  time  to  time  of  an  l^^°l'  ^:Jg  ,  j 

5  assessment  upon  persons  holding  similar  contracts,  shall  be  a  contract  iC*  jj"^**'  ^°?,- 

6  of  insiu"ance  on  the  assessment  plan;    and  the  business  involving  the  iss Mass! 224! 

7  issuance  of  such  contracts  shall  be  carried  on  in  the  commonwealth  only  i-o  Mass.  218', 

8  by  duly  organized  corporations  subject  to  this  chapter.  "'^' 

171  Mass.  4.55.  1  Op.  A.  G.  455,  505.  2  Op.  A.  G.  214. 

1  Section  3.     Except  as  specifically  provided  in  this  chapter,  all  in-  chapter  175 

2  surance  or  benefit  contracts  relative  to  insurance  on  the  assessment  ass'essment'" 

3  plan  witliin  the  commonwealth,  or  with  residents  thereof,  shall  be  sub-  is9o?42i;  §  27. 

4  ject  to  chapter  one  hundred  and  seventy-five.  i70  Mass.  224.  ^-  ^-  ^^o-  §  22. 

1  Section  4.     Seven  or  more  persons,  residents  of  the  commonwealth,  Formation  of 

2  may  form  a  corporation  for  the  purpose  of  transacting  the  business  of  iss5!Ts3r§  2. 

3  assessment  insurance.    The  corporation  shall  be  formed  in  the  manner  If^a-s."^' 

4  prescribed  in,  and  shall  be  subject  to,  the  provisions  of  sections  six  to  i2o^m'2-4^  '^' 

5  nine,  inclusive,  and  thirty-two,  of  chapter  one  hundred  and  seventy-six,  Jf .^Ij'  |33,  §  10. 

6  so  far  as  applicable  to  such  a  corporation,  except  as  is  otherwise  expressly  im  Mass.  4.30. 

7  provided  herein.    The  name  of  the  corporation  shall  contain  the  word  iOp.A.^G.312. 

8  "insurance". 

9  Officers  chosen  at  the  first  meeting  of  the  associates  shall  hold  office 

10  until  the  next  succeeding  meeting  of  the  company  for  the  election  of 

11  officers,  the  date  of  wliich  shall  be  within  two  years  of  the  time  of  or- 

12  ganization,  and  shall  be  prescribed  by  the  by-laws.    At  this  meeting  and 

13  thereafter  at  least  biennially  the  officers  shall  be  chosen  and  hold  office 

14  until  their  successors  are  qualified. 

1  Section  5.     A  domestic  corporation  now  engaged  in  transacting  the  oid  corpora- 

2  business  of  insurance  on  the  assessment  plan  may  continue  to  exercise  t'nue.'""Time"" 

3  all  rights,  powers  and  privileges  conferred  by  this  chapter,  or  its  articles  b°usin'eTs°by'^ 

4  of  incorporation  not  inconsistent  herewith,  subject  to  this  chapter.    No  "oJ^ii°n 

5  certificate  of  incorporation  granted  under  the  provisions  of  this  chapter  'Inn-J^^'ll^ 

6  shall  continue  valid  after  one  year  from  the  date  thereof  unless  the  or-  R.'L.'i2o.'§2a 

7  ganization  has  been  completed  and  business  begun  thereunder.  505." 

1  Section  6.     A  company  shall  not  assume  any  liability  nor  make  any  issuance  of 

2  other  than  the  advance  assessment  nor  issue  any  policy  or  certificate,  isss.'Tss,  §  2. 

3  until  at  least  five  hundred  persons  have  subscribed  in  %\Titing  an  agree-  r^^l!  iloi  i  s! 

4  ment  to  be  insured  therein,  and  have  each  paid  one  full  benefit  assess- 

5  ment,  to  be  held  in  trust  for  the  beneficiaries,  which  shall  have  been 

6  deposited  as  provided  in  section  ten,  nor  until  the  commissioner  has  cer- 

7  tified  that  it  has  complied  with  the  provisions  of  law  and  is  authorized 

8  to  transact  business.    The  commissioner  may  require  of  the  applicants 


2044  ASSESSMENT  INSUEANCE.  [ChaP.    177. 

for  such  certificate,  and  at  any  time  of  the  officers  of  any  corporation,  9 
such  evidence,  under  oath  or  otherwise,  relative  to  its  affairs  as  he  may  10 
consider  necessary.  11 

Reinsurance,  c^  ^        c       l  '  •j.T.  j.  i?         'j.  -i 

etc.  Section  /.     buch  company  may  reinsiu-e  -with  or  transier  its  mem-     1 

1890,  lit,  I  ^i'2.  bersliip  certificates  and  funds  to  any  company  doing  business  under  2 
wia  23°;  ^  *'  this  chapter,  or  to  any  domestic  stock  insurance  company  authorized  to  3 
transact  the  business  of  accident  and  health  iiisiu'ance.  The  contract  of  4 
reinsiu^ance  or  transfer  shall  be  submitted  to  and  approved  by  a  two  5 
thirds  vote  of  the  policy  or  certificate  holders  of  the  ceding  company  6 
present  at  a  meeting  called  to  consider  the  same,  of  wliich  a  written  or  7 
printed  notice  shall  be  mailed  to  each  policy  or  certificate  holder  at  least  8 
thirty  days  before  the  day  fixed  for  the  meeting.  If  the  vote  is  in  the  9 
affirmative,  a  certified  copy  of  all  proceedings  relating  to  the  proposed  10 
reinsurance  shall  be  filed  with  the  commissioner,  who,  if  he  finds  that  11 
the  proceedings  have  been  in  accordance  with  law,  shall  approve  the  12 
same.  The  reinsuring  corporation  shall  be  entitled  to  all  the  assets  of  13 
the  ceding  company  and  shall  assume  all  of  its  liabilities.  If  such  vote  14 
of  appro^•al  of  reinsurance  or  transfer  shall  include  an  agreement  for  the  15 
transfer  of  an  emergency  fund  to  the  reinsuring  corporation,  the  com-  16 
missioner  shall  approve  an  order  for  the  transfer  of  the  emergency  fund  17 
to  the  reinsuring  corporation,  and  the  state  treasurer  shall  thereupon  18 
pay  over  the  emergency  fund  to  the  reinsuring  corporation.  If  the  19 
corporation  assuming  the  reinsurance  or  transfer  is  subject  to  this  chap-  20 
ter,  the  proposed  contract  of  reinsurance  shall  be  submitted  to  its  policy  21 
or  certificate  holders,  and  the  same  notice  given  and  the  same  affirma-  22 
tive  vote  required  of  its  policy  or  certificate  holders  as  is  required  of  the  23 
policy  or  certificate  holders  of  the  ceding  company.  The  policies  or  24 
certificates  in  force  at  the  date  of  reinsurance  or  transfer  shall  continue  25 
in  full  force  and  effect  in  all  their  pro\isions,  agreements  and  under-  26 
takings,  and  shall  be  construed  according  to  the  provisions  of  law  under  27 
wlu'ch  they  were  issued,  except  that  the  policy  or  certificate  holders  28 
shall  not  be  liable  to  any  extra  assessment;  provided,  that  the  rates  for  29 
assessments  for  death  from  natural  causes  may  from  time  to  time  be  30 
raised  if  the  experience  of  the  company  shows  it  to  be  necessary.  Any  31 
defences  or  evidence  relative  to  such  policies  or  certificates  open  under  32 
their  provisions  shall  constitute  a  defence,  and  shall  be  recei\-ed  as  evi-  33 
dence  in  any  controversy  between  the  parties  to  and  interested  in  such  34 
policies  or  certificates.  If  the  ceding  company  has  policies  or  certificates  35 
outstanding  wliich  provide  benefits  for  death  from  natural  causes,  the  36 
surplus  at  the  date  of  transfer  or  reinsurance  after  deducting  from  the  37 
admitted  assets  all  losses  and  claims  for  losses  and  all  other  liabilities,  38 
including  the  unearned  portion  of  the  premiums  on  policies  in  force,  39 
shall  be  held  by  the  reinsuring  corporation  as  a  separate  fund,  and  to-  40 
getlier  with  all  natural  death  benefit  assessments  or  premiums  shall  be  41 
used  only  in  the  payment  of  the  natural  death  benefits  payable  under  42 
the  policies  or  certificates  assumed  by  the  reinsuring  corporation  so  43 
long  as  any  contracts  providing  such  benefits  remain  in  force;  provided,  44 
that  such  fund  need  at  no  time  be  larger  than  the  total  face  value  of  45 
such  outstanding  certificates.  The  approval  by  the  commissioner  of  a  46 
contract  of  reinsurance  or  transfer  shall  operate  to  dissolve  the  ceding  47 
company,  and  all  liability  upon  its  policies  shall  thereupon  cease,  but  48 
its  officers  may  thereafter  perform  any  act  necessary  to  close  its  affairs.      49 


Chap.  177.]  assessment  instoance.  2045 

1  Section  8.     Every  policy  issued  by  any  such  company  shall  specify  Amount  of 

2  the  amount  of  money  which  it  promises  to  pay  upon  the  contingency  be  specified. 

3  insured  against,  which  shall  not  be  larger  than  the  amount  of  one  benefit  bene'fit,"etc^ 

4  assessment  upon  the  entire  membership,  and  the  number  of  days  after  ligo;^!,  §to. 

5  satisfactory  proof  of  the  happening  of  such  contingency  when  such  pay-  fa^^j/^"'  \fg 

6  ment  shall  be  made;   and  upon  the  occiu-rence  of  such  contingency,  the  ill  H'^^^iS^- 

_    ,  „    .  .  .  '^  .  ,  ,.  .       ,   .  Ii4  Mass.  2(4. 

7  benenciary  may  mamtam  an  action  upon  such  policy  in  his  own  name;  lOp.A.c.  312. 

8  and  the  indebtedness  thereon  shall  be  a  lien  upon  all  the  property  of  the 

9  company  with  priority  over  all  indebtedness  thereafter  incurred,  except 

10  as  provided  in  the  following  section.    If  the  commissioner  is  satisfied,  on 

1 1  in\'estigation,  that  any  such  company  has  refused  or  failed  to  pay  such 

12  indebtedness  for  thirty  days  after  it  became  due,  and  after  proper  de- 

13  mand,  he  shall  notify  it  to  suspend  business  until  such  indebtedness  is 

14  fully  paid.    While  such  notice  is  in  force  no  officer  or  agent  of  the  com- 

15  pany  shall  make,  sign  or  issue  any  policy  of  insurance,  nor  issue  any 

16  notice  of  or  call  upon  the  members  for  payment  of  an  assessment;   and 

17  all  money  received  from  any  source  by  the  company,  its  agents  or  officers, 

18  shall  be  forthwith  deposited  in  a  bank  or  trust  company  to  await  a  final 

19  decision  as  provided  in  the  following  section. 

1  Section  9.     When  the  commissioner  has  given  the  notice  required  by  investigation 

2  the  preceding  section,  he  shall  proceed  without  delay  to  investigate  the  sion™?^d 

3  condition  of  the  company,  and  if  it  shall  appear  to  him  that  its  liabilities  1^*5)  iss,'?  s. 

4  exceed  its  resources,  and  that  it  cannot  within  a  reasonable  time,  not  Hl^]  435.  ^  ^*' 

5  more  than  three  months  from  the  date  of  the  original  default,  pay  its  JlA,'-o>  f„^^ 

6  accrued  indebtedness  in  full,  he  shall  report  the  facts  to  the  attorney  i74  Mass.  274. 

7  general,  who  shall,  upon  the  commissioner's  report,  apply  to  the  supreme 

8  judicial  or  superior  court  for  an  order  closing  the  business  of  the  com- 

9  pany,  and  appointing  a  receiver  for  the  distribution  of  its  assets  among 

10  its  creditors;    but  ten  days'  notice  shall  be  given  before  a  final  order 

11  therein,  and  the  court  may  make  such  order  as  the  interest  of  the  com- 

12  pany  and  the  public  may  require. 

1  Section  10.     Such  companies  shall  provide  in  their  contracts  with  Emergency 

2  policy  holders  for  the  accumulation  of  an  emergency  fund,  which  shall  isssi  is3, 5  s. 

3  be  at  all  times  not  less  than  the  proceeds  of  one  benefit  assessment  on  all  r*®l;  tlo.  1 10. 

4  policy  holders  thereof;  said  fund  shall  be  accumulated  within  six  months  JH  j;}^^^-  Hf 

5  from  the  date  of  their  incorporation,  and,  together  with  the  income  lOp.  a.  g.  S7. 
G  thereon,  shall  be  held  in  trust  for  the  payment  of  death  and  disability 

7  claims,  provided,  that  when  said  emergency  fund  is  greater  than  double 

8  the  amount  of  one  benefit  assessment  upon  the  entire  membership,  the 

9  company  may  apply  the  excess,  or  any  portion  thereof,  in  reduction  of 

10  assessments  upon  policy  holders,  or  in  such  other  equitable  division  or 

11  apportionment  thereof  as  its  rules  or  contracts  may  provide.    Said  fund 

12  shall  be  invested  in  securities  in  which  insurance  companies  are  allowed 

13  by  chapter  one  hundred  and  seventy-five  to  in\-est  their  capital,  and  of  such 

14  securities  an  amount  not  less  than  one  assessment  shall  be  deposited  in 

15  trust  with  the  state  treasurer;  but  the  company  shall  have  at  all  times, 

16  on  approval  of  the  commissioner,  the  right  to  exchange  any  part  of  said 

17  securities  for  others  of  a  like  amount  and  character.    Any  portion  of  said 

18  emergency  fund  may  be  drawn  by  a  requisition,  signed  by  two  thirds  of 

19  the  directors  and  endorsed  by  the  commissioner,  setting  forth  that  the 

20  same  is  to  be  used  for  the  purposes  of  said  trust.    If  such  company  shall 


2046 


ASSESSMENT   rNSUE.\NCE. 


[Chap.  177. 


discontinue  business  the  supreme  judicial  or  superior  court  may  appoint  21 
a  receiver  to  administer  any  unexhausted  portion  of  said  fund,  which  22 
shall  be  used,  less  such  compensation,  not  to  exceed  five  per  cent  thereof  2.3 
if  the  assets  exceed  five  thousand  dollars,  as  the  court  may  allow  the  re-  24 
ceiver:  first,  in  the  payment  of  accrued  claims  upon  policies,  and  if  in-  25 
sufficient  to  pay  such  claims  in  full,  in  their  payment  pro  rata;  second,  26 
if  a  balance  remain,  in  the  payment  of  like  claims  thereafter  accruing  in  27 
the  order  of  their  occurrence.  '  28 


offic^'era*^"'  Section  11.     The  officers  of  a  company  refusing  or  neglecting,  for 

it^L.  ilo.  Vn.  ^'^^y  ^^y^  ^^^^^  *^^  filing  of  satisfactory  proof  of  the  accidental  death  of  a 
1  Op.  A.  G.  408.  policy  holder,  if  the  claim  arising  thereon  is  not  disputed  and  if  the  benefit 
or  emergency  fund  is  not  sufficient  to  pay  said  claim,  to  levy  an  assess- 
ment to  provide  for  its  payment,  shall  thereby  become  liable  to  the  bene- 
ficiary under  said  policy  in  an  amount  not  exceeding  the  face  of  said 
claim. 


Company  ex- 
ceeding it.i 
powers,  etc., 
may  be 
enjoined. 
18S5,  183,  §  4. 
1S90,421,§  13. 
R.  L.  120.  §9. 
174  Mass.  274. 


Section  12.     If  the  commissioner,  on  investigation,  is  satisfied  that  1 

any  such  company  has  exceeded  its  powers,  failed  to  comply  with  any  2 

provision  of  law  or  is  conducting  business  fraudulently,  he  shall  report  3 

tiie  facts  to  the  attorney  general,  who  shall  thereupon  apply  to  the  su-  4 

preme  judicial  or  superior  coiu-t  for  an  injunction  restraining  such  com-  5 

pany  from  the  further  prosecution  of  business.    The  com-t  may,  upon  6 

hearing,  issue  such  injunction,  or  decree  the  removal  of  any  officer,  and  7 

substitute  a  suitable  person  to  serve  in  his  stead  until  a  successor  is  8 

chosen,  and  may  make  such  other  orders  and  decrees  as  the  interests  of  9 

the  company  and  the  public  may  require.  10 


Foreign  cor- 
porations may 
be  admitted. 
1885,  183,  §  9. 
1890.421,  §  10. 
R.  L.  120,  5  12. 
1918,  8. 
3  Op.  A.  G.  82. 


Section  13.  A  corporation  organized  under  the  authority  of  an-  1 
other  state  or  government  to  issue  policies  of  insurance  on  the  assess-  2 
ment  plan,  as  a  condition  precedent  to  transacting  business  in  this  com-  3 
monwealth,  shall  deposit  ^\ith  the  commissioner  a  certified  copy  of  its  4 
charter;  a  statement,  on  oath,  of  its  president  and  secretary  in  the  form  .5 
required  by  the  commissioner,  of  its  business  for  the  preceding  year;  a  6 
certificate,  on  oath,  of  its  president  and  secretary,  that  it  is  paying,  and  7 
for  the  twelve  months  then  last  preceding  has  paid,  the  maximum  amount  8 
named  in  its  policies  in  full;  a  certificate  from  the  proper  authority  in  9 
its  home  state  that  corporations  of  this  commonwealth  engaged  according  10 
to  this  chapter  in  insurance  on  the  assessment  plan,  are  legally  entitled  to  1 1 
do  business  in  such  state;  a  copy  of  its  policy  and  application,  wliich  must  12 
show  that  benefits  are  provided  for  by  assessment  upon  policy  holders;  13 
evidence  satisfactory  to  the  commissioner  that  it  has  accumulated  and  14 
maintains  a  fund  equal  in  amount  to  that  required  by  section  ten,  that  1.5 
such  accumulation  is  permitted  by  the  law  of  its  incorporation  and  is  16 
held  in  trust  for  the  benefit  of  policy  holders  only,  and  is  securely  in-  17 
vested.  The  commissioner  shall  thereupon  issue  a  license  authorizing  18 
such  corporation  to  do  business  in  this  commonwealth;  and  such  au-  19 
thority  shall  be  revoked  if  the  commissioner,  on  investigation,  is  satis-  20 
fied  that  such  corporation  is  not  paying  in  full  the  maximum  amoimt  21 
named  in  its  policies,  or  that  it  has  otherwise  failed  to  comply  Mith  22 
any  provision  of  this  chapter  or  its  own  contracts.  Upon  such  revo-  23 
cation  the  commissioner  shall  cause  notice  thereof  to  be  published  in  24 
such  manner  as  he  deems  necessary  for  the  protection  of  the  public;  and  25 


CH-^P.    177.]  ASSESSMENT   INSUR.\NCE.  2047 

26  no  new  business  shall  be  thereafter  clone  Ijy  it  or  its  agents  in  this  com- 

27  monwealth.    A  foreign  corporation  admitted  under  this  section  to  trans- 

28  act  business  shall  pay,  on  filing  its  application,  thirty  dollars,  and  for 

29  each  annual  statement  thereafter,  twenty  dollars.    If  any  other  state  or 

30  country  shall  impose  any  obligation  in  excess  of  those  imposed  by  this 

31  chapter  upon  any  such  corporation  of  this  commonwealth,  like  obliga- 

32  tion  shall  be  imposed  on  similar  corporations,  and  their  agents,  of  such 

33  state  or  country  doing  business  in  the  commonwealth. 

1  Section  14.     No  such  company  shall  issue  a  policy  in  favor  of  any  insurable 

2  person  as  beneficiary  who  has  no  insurable  interest,  and  an  assignment  AgeUmit. 

3  of  a  policy  to  a  person  having  no  such  interest  shall  render  such  policy  fg^gg ;  is.3,  §  10. 

4  void.    No  such  company  shall  insiue  any  person  who  is  more  than  seventy  Jf^{2^|o' 

5  years  of  age  when  the  policy  is  issued,  except  in  case  of  transfer  or  re-  }f^L'?'o 

6  insurance  as  provided  in  section  seven.    Every  call  for  payments  by  the 

7  policy  holders  shall  distinctly  state  the  purpose  of  the  same,  and  if  any 

8  part  of  the  amount  called  for  is  to  be  used  for  expenses  the  call  shall 

9  clearly  state  how  much.     Funds  received  from  benefit  calls  shall  be  ex- 

10  pended  only  in  the  payment  of  benefits,  but  expenses  inciured  in  in- 

11  vestigating  and  contesting  cases  believed  to  be  fraudulent  may  be  con- 

12  sidered  as  part  of  the  benefit  expense. 

1  Section  15.     All  policies  issued  to  persons  within  the  commonwealth  Copyofappu- 

2  by  such  companies,  if  they  contain  any  reference  to  the  application  of  attach^  to* 

3  the  insured,  or  the  constitution,  by-laws  or  other  rules  of  the  company,  1890*421,  §  21. 

4  either  as  forming  a  part  of  or  affecting  the  policy  or  contract  between  the  foV^Ma'ss'  242''' 

5  parties  thereto,  shall  contain  or  have  attached  to  them  correct  copies  of  i''^  m^^s-  2"8. 

6  the  applications  as  signed  by  the  applicants,  and  the  portions  of  the  con- 

7  stitution,  by-laws  or  other  rules  referred  to;  and  unless  so  attached  and 

8  accompanying  the  policy,  no  such  application,  constitution,  by-laws  or 

9  other  rules  shall  be  received  as  evidence  in  any  controversy  between  the 

10  persons  interested  in  said  policy,  or  parties  to  it,  and  shall  not  be  con- 

11  sidered  a  part  of  the  policy  or  of  the  contract  between  such  parties. 

12  Said  policy,  application,  constitution,  by-laws  or  other  rules  shall  be 

13  plainly  printed,  and  no  portion  thereof  shall  be  in  tv^je  smaller  than 

14  brevier;    but  this  section  shall  not  apply  to  health  certificates  or  con- 

15  tributional  receipts  or  other  evidences  used  in  reinstatement  of  a  policy. 

1  Section  16.     Every  such  company  shall  annually,  on  or  before  Feb-  Annual  state- 

2  ruary  first,  return  to  the  commissioner,  in  such  manner  and  form  and  Sation'^of "" 

3  including  such  information  as  he  may  require,  a  sworn  statement  of  its  affai?s.°^^ 

4  affairs  for  the  year  ending  on  December  thirty-first  preceding.     Such  }^^q'  J?,j'  |  l^- 

5  statement  shall  be  signed  and  sworn  to  by  the  president  and  secretary  l^^.^-^p- ,   . 

6  of  the  company  or,  in  their  absence,  by  two  of  its  principal  officers.    The  la'i-t]  eh'. 

7  commissioner  may  personally  or  by  his  deputy  or  examiner  visit  each  iop!a.'g.468. 

8  such  domestic  company  and  thoroughly  inspect  and  examine  its  afTairs 

9  to  ascertain  its  financial  condition,  its  ability  to  fulfil  its  obligations,  and 

10  whether  it  has  complied  with  the  provisions  of  law.    If  he  considers  it 

11  prudent  for  the  protection  of  the  policy  holders  in  the  commonwealth, 

12  he  may  in  like  manner  visit  and  examine,  or  cause  to  be  visited  and 

13  examined  by  some  competent  person  he  may  appoint  for  that  purpose, 

14  any  such  foreign  company  applying  for  admission  or  already  admitted 

15  to  do  business  in  this  commonwealth,  and  such  company  shall  pay  the 


2048  ASSESSMENT  ESfSUILVNCE.  [CH-y.    177. 

expense  of  such  examination,  including  the  expenses  of  the  commissioner  16 
or  the  persons  he  may  appoint  and  the  expenses  and  compensation  of  17 
all  assistants  employed  therein.  For  the  purposes  aforesaid  the  commis-  18 
sioner  or  person  making  the  examination  shall  have  free  access  to  all  the  19 
books  and  papers  which  relate  to  the  business  of  such  company,  and  to  20 
the  books  and  papers  kept  by  any  of  its  agents,  and  may  summon,  ad-  21 
minister  the  oath  to  and  examine  as  witnesses  the  directors,  ofBcers,  22 
agents  and  trustees  of  any  such  company  and  any  other  persons,  rela-  23 
tive  to  its  affairs,  transactions  and  condition.  24 

Benefits  not  Section  17.     The  benefit  to  be  paid  by  any  such  company  shall  not     1 

subject  to  1        !•    I  1  1  I  •        1  1 

attachment        be  liable  to  attachment  by  trustee  or  other  process,  or  be  seized,  taken,  2 

is9o!  42i!  1 23!  appropriated  or  applied  by  any  legal  or  equitable  process,  nor  by  opera-  3 

tion  of  law,  to  pay  any  debt  or  liability  of  a  policy  holder,  or  any  bene-  4 

ficiarv  therein.  5 


R.  L.  120,  I  18. 


Wseswt"           Section  IS.     A  person  who  knowingly  or  wilfully  makes  a  false  or  1 

1885  183  §  12  fraudulent  statement  or  representation  in  or  relative  to  an  application  2 

R  T'  i?o'  1 19'  ^^^  insurance,  or  for  the  purpose  of  obtaining  any  money  or  benefit,  in  3 

any  such  company,  shall  be  punished  by  a  fine  of  not  less  than  one  hun-  4 

dred  nor  more  than  five  hundred  dollars  or  by  imprisonment  for  not  less  5 

than  one  month  nor  more  than  one  year,  or  both ;  and  a  person  who  wil-  6 

fully  makes  a  false  statement  of  a  material  fact  or  thing  in  a  sworn  state-  7 

ment  as  to  the  death  or  disability  of  a  policy  holder  in  such  company,  for  8 

the  purpose  of  procuring  payment  of  a  benefit  named  in  the  policy  of  such  9 

holder,  shall  be  guilty  of  perjury.  10 

me'namesof          SECTION  19.     Evcry  such  compauy  shall  file  with  the  commissioner  1 

commiSner     ^^^^  uamc  aiid  residence  of  each  person  it  shall  appoint  or  employ  to  act  2 

if T' i?o' I il'   ^^  ^'^  agent  witliin  the  commonwealth;   and  no  person  shall  assume  to  3 

1903, 227'.          act  as  such  agent,  or,  on  behalf  of  such  company,  in  any  manner  for  com-  4 

pensation  aid  in  negotiating  contracts  of  insurance,  or  the  continuance  5 

or  renewal  thereof,  for  a  person  other  than  himself,  before  such  notice  6 

of  appointment  or  employment  is  filed.  7 


bi°i^an"clin          SECTION  20.     No  pcrson  shall  solicit  assessment  insurance  for  any  1 

compaiTy'^^     Corporation  or  organization  not  authorized  to  do  business  in  the  com-  2 

i89o''4'i'  §  19  Dionwealth  or  in  any  manner  assist  in  placing  insurance  in  such  corpora-  3 

R.  L.'i2o,'§i4.  tion  or  organization.  4 

riga^i,  1 26.      Section  21.     Any  such  company  or  any  officer  or  agent  thereof  neg-  1 

R.L.  120,  §21.  iggting  to  comply  with  or  violating  any  provision  of  this  chapter  shall,  2 

except  as  otherwise  provided,  be  punished  by  a  fine  of  not  less  than  one  3 

hundred  nor  more  than  five  hundred  dollars.  4 


Ch-yp.  178.] 


SAVINGS  B.UvK   LIFE   INSUE.UJCE. 


2049 


CHAPTER    178, 


SAVINGS   BANK   LIFE   INSURANCE. 


Sect. 

1.  Definitions. 

2.  Savings  banks  may  establish  insurance 

departments. 

3.  Special  guaranty  funds  to  be  provided 

before  issue  of  certificate  establishing 
the  department. 

4.  Special  expense  guaranty  fund. 

5.  Special  insurance  guaranty  fund. 

6.  Policies  of  insurance  and  annuities. 

7.  License  to  issue  policies,  etc. 

8.  Assets  and  accounts  of  insurance  de- 

partment and  savings  department  to 
be  kept  separate. 

Investment  of  funds  of  insurance  de- 
partment. 

Amount  of  policy. 

Policy,  etc.,  not  to  be  forfeited  after 
payment  of  six  months'  premiums. 

Policies  to  be  issued  to  residents,  etc., 
only. 

13.  Solicitors  not  to  be  employed. 

14.  Management    of     General     Insurance 

Guaranty  Fund. 

15.  Duties  of  state  actuary. 

16.  Duties  of  state  medical  director. 

17.  Services  of  actuary  and  medical  director 

to  be  without  charge,  etc. 

18.  A  percentage  of  premiums  to  be  paid  to 

General  Insurance  Guaranty  Fund,  etc. 


9. 


12 


Sect. 

19.  When     funds    of    General     Insurance 

Guaranty  Fund  are  sufficient,  it  may 
guarantee  insurance  risks  in  certain 
cases,  etc. 

20.  Investments  of  funds  of  General  Insur- 

ance Guaranty  Fund. 

21.  A  percentage  of  profits  of  insurance  de- 

partment to  be  set  apart  as  an  emer- 
gency fund,  etc. 

22.  Insurance  policies.    By  whom  signed. 

23.  Percentage  of  premiums  to  be  paid  to 

General  Insurance  Guaranty  Fund 
may  be  reduced  in  certain  cases, 
etc. 

24.  Suits  on  policies,  etc. 

25.  Issue  of  policies  may  be  discontinued, 

etc. 

26.  Examination  by  commissioner  of  insur- 

ance and  commissioner  of  banks. 

27.  Summoning  witnesses,  etc. 

28.  Insurance  departments  may  in  certain 

cases  be  restrained  from  doing  busi- 
ness. 

29.  Annual  statements,  etc.     Form. 

30.  Treasurer  of  General  Insurance  Guar- 

anty Fund  to  make  annual  statement. 

31.  Annual  report  of  commissioners. 


1  Section  1.     The  following  words  as  user!  in  this  chapter  shall,  unless  Definitions. 

2  the  context  otherwise  requires,  have  the  following  meanings: 

3  "Savings  bank",  a  savings  bank  incorporated  under  the  laws  of  the 

4  commonwealth,  including  institutions  for  savings  incorporated  as  such 

5  in  the  commonwealth. 

6  "Savings  and  insurance  bank",  a  savings  bank  which  has  established 

7  an  insurance  department. 

8  "Savings  department",  that  department  of  a  savings  and  insurance 

9  bank  in  which  the  business  done  by  savings  banks  other  than  that  pro- 

10  vided  for  by  this  chapter  is  conducted. 

11  "In.surance  department",  the  department  of  a  savings  and  insurance 

12  bank  in  which  the  business  of  issuing  life  insurance  and  the  granting  of 
1.3  annuities  is  conducted. 

14  "Trustees",  trustees  of  the  savings  bank  or  savings  and  insurance 

15  bank. 

IC       "Treasurer",  the  treasurer  of  the  savings  bank  or  savings  and  insur- 
17  ance  bank. 


1  Section  2.     Any  savings  bank  may,  upon  complying  with  the  pro-  Savinus  banka 

2  visions  hereinafter  set  forth,  establish  an   insurance  department  if  its  "nsur.infe'^''^'' 

3  board  of  trustees  has,  at  a  meeting  specially  called  for  the  purpose,  voted  i907,'^5"Gi°f  i. 

4  so  to  do  by  a  majority  of  two  thirds  of  its  trustees  present  at  the  meeting  ^  Qp'  ^j\ 


40. 
'499. 


2050 


SAVINGS   B.VNK   LIFE   INSI.TR.\NCE. 


[Cn-iP.  178. 


Special 
guaranty 
funds  to  be 
provided 
before  issue 
certificate 
establishing 
the  depart- 
ment. 

1907,  S61,  § 
1919,  350,  § 


and  voting,  and  if  such  vote  has  been  ratified  by  vote  of  a  majority  of  the  5 
incorporators  present  and  voting  at  a  meeting  duly  called  therefor.  The  6 
notice  of  such  trustees'  meeting  shall  be  given  at  least  thirty  days  prior  7 
to  the  date  of  the  meeting,  and  shall  be  otherwise  in  accordance  with  any  8 
laws  and  by-laws  governing  the  calling  of  special  meetings  of  trustees.  9 
Copies  of  the  vote  of  the  trustees  to  establish  the  insurance  department  10 
and  of  the  vote  of  the  incorporators  ratifying  the  same,  certified  to  by  the  11 
clerk  of  the  bank  and  sworn  to  by  the  president  or  vice  president  and  the  12 
treasurer  or  assistant  treasurer,  shall  be  filed  with  the  commissioner  of  13 
banks  and  with  the  commissioner  of  insurance  within  thirty  days  after  14 
the  adoption  thereof;  and  if  said  commissioners  shall  find  said  votes  15 
to  be  in  conformity  with  law,  and  that  the  conditions  provided  by  the  16 
following  section  have  been  complied  with,  and  if  in  the  opinion  of  the  17 
commissioner  of  banks  the  financial  condition  of  the  bank  presents  no  18 
objection  to  the  establishment  of  an  insurance  department,  they  shall  19 
issue  a  joint  certificate  declaring  said  insurance  department  established.  20 

Section  3.  The  certificate  establishing  the  insurance  department  1 
shall  not  be  issued  until  there  shall  have  been  pro\aded  (a)  a  special     2 

3f  expense  guaranty  fund  as  set  forth  in  the  following  seclion  and  (b)  either  3 
a  special  insurance  guaranty  fund  as  set  forth  in  section  five  or  a  guar-  4 
anty  contract  under  section  nineteen;  and  until  (c)  a  certificate  in  dupli-    5 

46.  cate,  under  the  oath  of  the  treasurer,  shall  have  been  filed  with  the  com-  6 
missioner  of  insurance  and  the  commissioner  of  banks  certifying  that  7 
said  special  expense  guaranty  fund  and  said  special  insurance  guaranty  8 
fund  or  guaranty  contract  have  been  furnished,  and  (d)  said  commis-  9 
sioners  shall,  upon  investigation,  have  made  a  joint  finding  that  said  10 
requirements  have  duly  been  complied  with.  11 


Special 

expense 

guaranty 

fund. 

1907,  S61,  §  4. 

1919,  350,  5  46. 


Section  4.  The  special  expense  guaranty  fund  mentioned  in  the  1 
preceding  section  shall  consist  of  not  less  than  five  thousand  dollars  in  2 
cash,  advanced  to  and  placed  at  the  risk  of  said  department  as  a  guaranty  3 
fund  to  be  applied  in  payment  of  the  expenses  thereof,  if  and  so  far  as  4 
the  amounts  contributed  from  the  loading  in  the  insurance  premium  and  5 
in  annuity  charges,  together  with  any  membership  fee  and  surrender  and  6 
death  charges,  shall  prove  insufficient  to  pay  the  expenses  of  said  insur-  7 
ance  department.  The  original  amount  of  such  guaranty  fund  shall  be  8 
fixed  by  the  trustees,  with  the  approval  of  the  state  actuary  of  the  divi-  9 
sion  of  savings  bank  life  insurance  of  the  department  of  banking  and  10 
insurance,  and  the  guaranty  fund  may  be  increased  at  any  time  there-  11 
after  by  the  trustees.  The  amounts  advanced  as  a  special  expense  guar-  12 
anty  fund  shall  be  evidenced  by  certificates  of  the  par  value  of  one  hun-  13 
dred  dollars,  and  the  holders  thereof  shall  be  credited  with  interest  14 
thereon  annually,  with  annual  rests,  at  a  rate  equal  to  the  average  rate  15 
paid  in  that  year  upon  its  deposits  by  the  savings  department.  If  in  any  16 
year  ending  October  thirty-first  the  profits  remaining,  after  setting  aside  17 
amounts  for  surplus  as  provided  in  section  twenty-one,  shall  be  sufficient  18 
therefor,  the  trustees  shall  from  such  profits  reimburse  said  expense  19 
guaranty  fund  for  any  amounts  theretofore  drawn  from  it  to  defray  ex-  20 
penses  of  the  insurance  department;  and  if,  after  so  reimbursing  said  fund,  21 
and  after  reimbursing  the  special  insurance  guaranty  fund  for  amounts  22 
theretofore  drawn  from  it,  the  balance  of  profits  shall  be  sufficient  there-  23 
for,  the  trustees  shall  pay  to  the  holders  of  the  certificates  of  said  ex-  24 
pense  guaranty  fund  the  interest  accrued  thereon,  or  such  part  thereof  25 


1919,  350,  I  46. 


Chap.  178.]  saatngs  b.^nk  life  iNStiR.«srcE.  2051 

26  as  the  amount  may  suffice  to  cover.    Said  expense  guaranty  fund  may  be 

27  retired,  with  the  approval  of  the  commissioner  of  banks  and  the  com- 

28  missioner  of  insurance,  whenever  in  the  opinion  of  the  trustees  it  is  no 

29  longer  required.    The  amount  so  advanced  as  an  expense  guaranty  fund 

30  shall  be  repaid  and  the  interest  credited  shall  be  paid  only  as  above  pro- 

31  vided,  or  under  section  twenty-five,  and  shall  not  be  deemed  a  liability 

32  of  the  insurance  department  in  determining  the  solvency  thereof. 

1  Section  5.     The    special    insurance    guaranty    fund    mentioned    in  Special 

2  section  three  shall  consist  of  not  less  than  twenty  thousand  dollars  in  glfa^Tnt™ 

3  cash,  advanced  to  and  placed  at  the  risk  of  the  insurance  department,  igo?;  56i,  f  s. 

4  which  shall  be  applicable  to  the  payment  and  satisfaction  of  all  losses 

5  or  other  obligations  arising  out  of  policies  or  annuity  contracts  if  and 

6  whenever   the   liabilities  of   said   department,  including   the   insurance 

7  reserve,  are  in  excess  of  its  assets.    The  original  amount  of  such  special 

8  insurance  guaranty  fund  shall  be  fixed  by  the  trustees,  with  the  ap- 

9  proval  of  the  state  actuary,  and  the  guaranty  fund  may  be  increased 
10  at  any  time  thereafter  by  vote  of  the  trustees.  The  amounts  advanced 
]  1  to  such  special  insurance  guaranty  fund  shall  be  represented  by  cer- 

12  tificates  of  the  par  value  of  one  hundred  dollars;  and  the  holders  thereof 

13  shall  be  credited  with  interest  thereon  annually,  with  annual  rests,  at 

14  the  rate  equal  to  the  average  rate  paid  in  that  year  upon  its  deposits 

15  by  the  savings  department.     If  in  any  year  ending  October  thirty- 

16  first  the  profits  remaining  are  sufficient  therefor,  after  setting  aside 

17  amounts  for  the  surplus  as  provided  in  section  twenty-one,  and  reim- 

18  bursing  the  special  expense  guaranty  fund  and  said  special  insurance 

19  guaranty  fund  for  all  amounts  theretofore  drawn  from  them  or  either 

20  of  them,  and  paying  interest  on  the  certificates  representing  the  special 

21  expense  guaranty  fund,  the  trustees  may  pay  the  interest  accrued  on 

22  said  insurance  guaranty  certificates  or  such  part  thereof  as  the  amount 

23  may  suffice  to  cover.    After  the  special  expense  guaranty  fund  has  been 

24  retired  as  provided  in  section  four,  said  special  insurance  guaranty 

25  fund  may,  with  the  approval  of  the  commissioner  of  insurance,  be  re- 

26  tired  by  the  trustees  as  soon  as  the  insurance  department  shall  have 

27  accumulated  a  surplus  in  excess  of  all  its  liabilities  equal  to  the  amount 

28  of  such  guaranty  fund,  including  any  interest  accrued  thereon  rcmain- 

29  ing  unpaid;   and  said  insurance  guaranty  fund  may,  with  like  approval, 

30  be  retired  from  time  to  time,  in  part,  but  the  balance  of  such  guaranty 

31  fund,  including  unpaid  interest  plus  the  surplus  on  hand,  shall  at  no 

32  time  be  less  than  the  amount  of  the  original  insurance  guaranty  fund. 

33  The  amounts  so  advanced  as  an  insurance  guaranty  fund  shall  be  re- 

34  paid  and  the  interest  credited  thereon  shall  be  paid  only  as  above  pro- 

35  vided,  or  under  section  twenty-five,  and  shall  not  be  deemed  a  liability 

36  of  the  insurance  department  in  determining  the  solvency  thereof. 

1  Section  6.     Any   savings   and   insurance   bank   acting   through   its  PoUcies  of 

2  insurance  department,  after  the  issue  of  the  license  provided  for  in  the  TnnntSS.^'"^ 

3  following  section,  may  make  and  issue  policies  upon  the  lives  of  persons  ^^°''"  ^'^^'  ^  ®" 

4  and  grant  or  sell  annuities  with  all  the  rights,  powers  and  privileges 

5  and  subject  to  all  the  duties,  liabilities  and  restrictions  in  respect  to 

6  the  conduct  of  the  business  of  life  insurance  conferred  or  imposed  by 

7  general  laws  relating  to  domestic  legal  reserve  life  insurance  companies, 

8  so  far  as  the  same  are  applicable  and  except  as  is  otherwise  provided 

9  herein.     The  insurance  department  shall  in  all  respects,  except  as  is 


2052 


SAVINGS  B.\NK  LIFE   INSUK.\NCE. 


[Chaf.  178. 


otherwise  provided  herein,  be  managed  as  savings  banks  are  managed  10 
under  general  laws  relating  to  savings  banks.  Such  insurance  depart-  11 
ment  may  decline  particular  classes  of  risks  or  reject  any  particular  12 
application.  13 


kiulfpoHcies         Section  7.     A  license  to  issue  policies  and  make  annuity  contracts 
^^'^-  shall,  upon  the  application  of  the  trustees,  be  granted  by  the  com- 


1907,561,  |7.  ."".'    "1—    -; t-t-"^"-^--"    --'     "•-    ..^^.-^,^^^    e.' —    ".;       ,.,,'" 

1919, 350,  §  46.  missioner  or  insurance  to  any  savings  and  insurance  bank  which  has 
duly  complied  with  the  requirement  set  forth  in  section  tliree;  but  the 
said  license  shall  be  revocable  by  said  commissioner  at  his  discretion, 
and  after  having  given  thirty  days'  written  notice  to  said  trustees, 
provided  not  more  than  twenty  thousand  dollars  of  insurance  on  not 
less  than  one  hundred  lives  of  residents  of  the  commonwealth,  on  which 
all  pa\Tnents  due  by  the  terms  thereof  have  been  made  thereon,  shall 
have  been  applied  for  and  issued,  and  then  remain  outstanding.  A  list  10 
showing  the  amount  of  outstanding  policies,  with  the  names  of  the  11 
holders  thereof,  shall  be  filed  by  the  treasurer  of  the  said  bank  with  12 
said  commissioner  at  the  close  of  each  month  until  the  above  limits  as  13 
to  amount  of  insurance  and  number  of  persons  insured  and  holding  14 
policies  standing  in  full  force  by  reason  of  the  due  payment  of  premium,  15 
have  been  exceeded.  Upon  the  filing  of  every  such  list,  the  correctness  16 
of  which  shall  be  certified  by  the  treasurer  on  oath,  the  said  commis-  17 
sioner  may  make  such  investigations  as  he  deems  proper,  in  order  to  18 
ascertain  the  truth  of  the  facts  thus  certified  by  the  treasurer.  19 

The  revocation  of  the  license  of  any  bank  under  the  terms  of  this  20 
section  shall  not  affect  the  right  and  the  obligation  of  the  bank  to  con-  21 
tinue  and  fulfil  its  existing  contracts,  or  the  right,  with  the  approval  22 
of  said  commissioner,  to  reinsure  them  or  to  transfer  them  to  another  23 
bank  or  company  holding  a  license  to  do  insurance  business  in  the  24 
commonwealth.  25 


Assets  and 
accounts  of 
insurance 
department 
and  savings 
department 
to  De  kept 
separate. 
1907,  561,  §  S. 


Section  S.  The  assets  of  the  savings  department  shall  be  liable  for  1 
and  applicable  to  the  payment  and  satisfaction  of  the  liabilities,  obliga-  2 
tions  and  expenses  of  the  savings  department  only.  The  assets  of  the  3 
insurance  department  shall  be  liable  for  and  applicable  to  the  payment  4 
and  satisfaction  of  the  liabilities,  obligations  and  expenses  of  the  in-  5 
surance  department  only.  The  savings  department  and  the  insurance  6 
department  shall  be  kept  distinct  also  in  matters  of  accounting  and  of  7 
investment.  Expenses  pertaining  to  the  conduct  of  both  the  savings  8 
department  and  the  insurance  department,  such  as  ofiice  rent  and  the  9 
salaries  of  general  officers,  shall  be  apportioned  by  the  trustees  equitably  10 
between  the  two  departments.  11 


Investment 
of  funds  of 
insurance 
department. 
1907,  561,  §  9. 


Section  9.  The  funds  of  the  insurance  department,  whether  arising 
from  premiums,  annuity  contracts,  guaranty  funds,  or  from  the  income 
thereof,  and  whether  constituting  insurance  reserve  or  surplus,  shall  be 
invested  in  the  same  classes  of  securities  and  in  the  same  manner  in 
which  the  deposits  of  the  savings  department  are  required  by  law  to  be 
invested,  except  that  it  may  make  loans  upon  any  policy  of  insurance  or 
annuity  contract  issued  by  it  to  the  extent  specified  in  section  fifteen. 


^oU°y.  Section  10.     No  savings  and  insurance  bank  shall  WTite  any  policy     1 

1915!  32.''  *  '"■  l^inding  it  to  pay  more  than  one  thousand  dollars,  exclusive  of  dividends    2 


1918,  70. 


Cn\T.    178.]  SAVINGS   B.INK   LIFE   INSURANCE.  2053 

3  or  profits,  upon  the  death  of  any  one  person,  except  for  such  amount,  if  l^^^'  ^^^  ^gg 

4  any,  as  it  may  be  bound  to  pay  upon  the  death  of  such  person  under  an 

5  employees'  group  poUcy,  nor  any  annuity  contract  binding  it  to  pay  in 

6  any  one  year  more  than  two  hundred  dollars,  exclusive  of  dividends  or 

7  profits. 

1  Section  11.     No  policy  of  life  or  endowment  insurance  or  annuity  Policy,  etc., 

2  contract  issued  by  anj^  savings  and  insurance  bank  shall  become  forfeit  forfeUed  after 

3  or  void  for  non-payment  of  premium  after  six  full  months'  premiums  Sl^month"' 

4  have  been  paid  thereon;   and  in  case  of  default  in  the  pajTnent  of  any  i907"si;l§ii. 

5  subsequent  premium,  then,  without  any  further  stipulation  or  act,  such  '^°^'  "-■ 

6  policy  shall  be  binding  upon  the  bank  at  its  option,  either  (a)  for  the 

7  cash  surrender  -s-alue  or  (6)  for  the  amount  of  paid-up  insurance  which  the 

8  then  net  value  of  the  policy  and  all  dividend  additions  thereon,  less  any 

9  indebtedness  to  the  bank  on  account  of  said  policy,  and  less  a  surrender 

10  charge  of  not  more  than  one  per  cent  of  the  face  value  of  the  policy,  will 

11  purchase  as  a  net  single  premium  for  life  or  endowment  insurance,  ma- 

12  turing  or  terminating  at  the  time  and  in  the  manner  provided  for  in  the 

13  original  policy  contract,  or  (c)  for  the  amount  of  paid-up  term  insurance 

14  which  such  net  Aalue  would  purchase. 

1  Section  12.     No  policy  or  annuity  contract   shall  be  issued  except  Policies  to 

2  upon  the  life  and  for  the  benefit  of  a  resident  of  the  commonwealth  or  re^siden'ts,  ° 

3  of  a  person  regularly  employed  therein.     If  the  holder  of  any  policy  i907,°6(i^',  §  12. 

4  or  annuity  issued  by  such  a  bank  becomes  a  resident  of  another  state  or 

5  country,  it  shall  be  necessary,  unless  the  bank  otherwise  provides,  for 

6  such  a  policy  holder  or  such  an  annuitant,  or  his  duly  authorized  repre- 

7  sentative,  or  the  beneficiary  entitled  to  a  claim  for  loss  under  such  a 

8  policy,  to  make  or  receive  payments  at  the  bank,  or  by  correspondence, 

9  without  notice  from  the  bank.    Should  a  lapse  occur  by  reason  of  the 

10  failure  of  any  such  person  to  do  so  seasonably,  the  liability  of  the  bank, 

11  in  case  of  a  policy  of  insurance,  shall  be  only  for  the  amount  of  its  previ- 

12  ously  acquired  paid-up  insurance  value,  or,  on  demand,  for  the  stipulated 

13  cash  surrender  value  thereof.     Upon  the  presentation  of  the  proof  of 

14  death  of  any  insured  who  had  so  become  a  resident  of  another  state,  the 

15  treasurer  of  the  issuing  bank  may,  if  he  deems  it  necessary,  cause  an  in- 

16  dependent  investigation  to  be  made  in  such  other  state  into  the  alleged 

17  facts;  and  the  expenses  thereof  may,  in  the  discretion  of  the  treasurer,  be 

18  deducted  from  the  amount  otherwise  payable  on  the  policy. 

1  Section  13.     Savings  and  insurance  banks  shall  not  employ  solicitors  solicitors 

2  of  insurance,  and  shall  not  employ  persons  to  make  house  to  house  col-  employed. 

3  lections  of  premiums;  but  the  trustees  may  establish  such  agencies  and  mg,'  350,'  i  11'. 

4  means  for  the  receipt  of  applications  for  insurance  and  of  deposits  and  of 

5  premium  and  annuity  payments,  at  such  convenient  places  and  times, 

6  of  such  nature  and  upon  such  terms  as  the  commissioner  of  banks  and 

7  the  commissioner  of  insurance  may  approve.     The  trustees  may  also, 

8  witji  like  approval,  appoint  any  savings  bank  or  sa\'ings  and  insurance 

9  bank  its  agent  to  make,  so  far  as  thereunto  authorized,  payments  due  on 

10  policies  of  insurance  and  on  contracts  for  annuities,  and  to  perform  other 

11  services  for  the  insurance  department.    All  savings  banks  and  all  savings 

12  and  insurance  banks  may,  with  like  approval,  act  as  such  agents.    The 

13  business  of  the  insurance  department  may,  in  the  discretion  of  the  trus- 


2054  SAVINGS   B.«^K    LIFE    INSURANCE.  [ChAP.    178. 

tees,  be  carried  on  either  in  the  same  building  with  that  of  tlie  savings  14 
department  or  in  a  different  building.  15 

Management  SECTION  14.     The    General    Insurance    Guaranty    Fund    shall    be    a     1 

of  General  •   i       i  -f*       u  •  i     i  •         i  •        i 

Insurance  body  Corporate,  with  the  powers  specincally  provided  in  this  chapter  and  2 

Fund.  with  all  the  general  corporate  powers  incident  thereto.    It  shall  be  man-  3 

■  aged  by  the  board  of  trustees  appointed  under  section  ten  of  chapter  4 

twenty-six.    The  trustees  of  the  fund  shall  adopt  a  code  of  by-laws.  5 

state'^acfuary.  SECTION  15.  The  statc  actuary,  appointed  under  section  eleven  of  1 
1914'  ^4ii'  ^  ^^'  chapter  twenty-six,  with  the  advice  of  the  attorney  general  as  to  matters  2 
1919,  350,  §  46.  of  legal  form,  shall  prepare  standard  forms  of  life  insurance  policies  and  .3 
life  annuity  contracts,  including  a  whole  life  policy,  a  limited  payment  4 
life  policy,  a  limited  term  policy,  an  endowment  policy,  an  annuity  con-  5 
tract,  and  a  combination  of  life  insurance  policy  and  deferred  annuity  6 
contract,  and  such  others  as  may  from  time  to  time,  in  the  opinion  of  the  7 
commissioner  of  insurance,  be  desirable.  Every  policy  and  annuity  con-  8 
tract  shall  provide  that  the  issuing  bank  may  make  any  payment  there-  9 
under  by  placing  to  the  credit  of  the  account  of  the  registered  beneficiary  10 
in  the  savings  department  the  amount  payable.  Such  standard  forms  11 
shall  be  used  as  the  uniform  and  exclusive  forms  of  policies  by  all  savings  12 
and  insurance  banks.  He  shall  also  prepare  the  form  of  blanks  for  appli-  1.3 
cations  for  life  insurance  policies  and  life  annuity  contracts  and  for  proof  14 
of  loss,  and  all  other  forms  necessary  for  the  efficient  prosecution  of  the  15 
business,  also  books  of  record  and  of  account,  and  all  schedules  and  all  16 
reports,  not  otherwise  provided  for,  required  in  the  conduct  of  the  busi-  17 
ness,  and  these  shall  be  used  as  the  uniform  and  exclusive  form  of  blanks,  18 
books,  schedules  and  reports  in  the  insurance  departments  of  all  savings  19 
and  insurance  banks.  He  shall  also,  consistently  with  the  law  govern-  20 
ing  domestic  legal  reserve  life  insurance  companies,  determine  and  pre-  21 
pare  the  table  of  premium  rates  for  all  kinds  of  life  insurance  policies,  22 
and  the  purchase  rates  for  annuities,  and  the  amount  of  the  member-  23 
ship  fee,  the  surrender  and  any  proof  of  death  charges,  and  the  premium  24 
rates  for  reinsurance.  The  rates,  fees  and  charges  so  fixed  shall  be  25 
adopted  as  the  uniform  and  exclusive  premiums,  annuity  rates,  the  initia-  26 
tion,  the  surrender,  and  the  proof  of  death  charges.  He  shall  also  deter-  27 
mine  and  prepare  tables  showing  the  amounts  which  may  be  loaned  on  28 
insurance  policies,  and  the  reinsurance  rates  to  be  charged  by  all  savings  29 
and  insurance  banks,  and  the  guaranty  charges  to  be  made  by  the  Gen-  30 
eral  Insurance  Guaranty  Fund,  but  the  loan  value  shall  in  no  event  ex-  31 
ceed  the  reserve  on  any  policy.  He  shall  also  prepare  or  procure  tables  32 
for  computing  the  legal  reserve  to  be  held  under  insurance  and  annuity  33 
contracts,  and  for  this  purpose  may,  with  the  approval  of  the  commis-  34 
sioner  of  insurance,  adopt  a  table  of  mortality  which  may  be  deemed  more  35 
suitable  than  the  American  Experience  Table  for  policies  of  insurance  of  36 
the  character  and  amounts  to  which  the  risks  of  the  banks  are  limited;  37 
and  shall  in  all  other  respects,  except  as  otherwise  provided,  perform  the  38 
duties  of  insurance  actuary  for  all  the  savings  and  insurance  banks  and  39 
the  General  Insurance  Guaranty  Fund.  The  ordinary  actuarial  routine  40 
work  of  the  banks,  including  an  annual  and  other  valuations  of  their  41 
policies,  shall  be  performed  by  their  clerks,  guided  and  assisted,  so  far  42 
as  may  be  necessary,  by  the  advice  and  instruction  of  the  state  actuary;  43 
but  an  annual  valuation  of  all  the  policies  of  the  banks  and  of  the  condi-  44 


Chap.  178.]  savings  b.uvk  life  DvSuk.\nce.  2055 

45  tion  of  the  General  Insurance  Guaranty  Fund  as  of  October  thirty-first 

46  of  each  year  shall  be  made  in  the  ofBce  of  the  state  actuary  under  his 

47  direction,  and  from  schedules  of  policy  data  on  blanks  furnished  by  him 

48  and  prepared  by  the  banks  in  accordance  with  his  instructions.     The 

49  state  actuary  shall  also  furnish  to  the  savings  and  insurance  banks  and 

50  to  the  General  Insurance  Guaranty  Fund  all  blanks  for  policies,  applica- 

51  tions,  schedules,  and  other  papers  and  books  which  the  state  actuary 

52  is  required  to  prepare,  as  herein  provided.    The  state  actuary  shall  for 

53  each  year  ending  October  thirty-first  determine  the  ratio  of  actual  to 

54  expected  mortality  claims  for  all  of  the  savings  and  insurance  banks  com- 

55  bined,  and  shall  determine  a  similar  ratio  for  each  of  the  savings  and  in- 

56  surance  banks  separately.     Both  calculations  shall  be  based  upon  the 

57  mortality  tables  and  the  rate  of  interest  used  by  the  banks  in  the  calcu- 

58  lation  of  the  premiums,  or  upon  such  other  bases  as  shall  be  approved  by 

59  the  commissioner  of  insurance.    If  the  calculation  of  the  ratio  pertaining 

60  to  any  savings  and  insurance  bank  shows  that  the  actual  mortality  ex- 

61  perienced  is  less  than  the  mortality  expected  to  be  experienced  by  all  of 

62  the  banks  combined,  the  state  actuary  shall  send  to  such  bank  a  cer- 

63  tificate  setting  forth  the  amount  of  such  difference,  and  thereupon  such 

64  bank  shall  send  to  the  General  Insiu-ance  Guaranty  Fund  in  cash  the 

65  amount  of  such  certificate.    The  state  actuary  shall  also  furnish  to  the 

66  trustees  of  the  General  Insurance  Guaranty  Fund  a  certificate  in  respect 

67  to  any  savings  and  insurance  bank  in  which  the  ratio  of  the  actual  to  the 

68  expected  mortality  has  exceeded  the  ratio  of  the  actual  to  the  expected 

69  mortality  for  all  of  the  banks  combined,  and  thereupon  the  trustees  of 

70  the  General  Insurance  Guaranty  Fund  shall  pay  to  such  bank  the  amount 

71  of  such  excess  as  evidenced  by  such  certificate. 

72  In  determining  the  net  profits,  as  defined  in  section  twenty-one,  to  be 

73  distributed  to  the  holders  of  the  policies  and  annuity  contracts  each 

74  year  for  each  savings  and  insurance  bank,  the  state  actuary  shall  con- 

75  sider  as  a  mortality  factor  the  ratio  of  the  actual  to  the  expected  mortal- 

76  ity  for  all  of  the  savings  and  insm-ance  banks  combined. 

1  Section  16.     The  state  medical  director,  appointed  under  section  Duties  of 

2  twelve  of  chapter  twenty-six,  shall,  subject  to  the  supervision  and  control  d^rector^'^'"' 

3  of  the  commissioner  of  insurance,  prescribe  the  rules  relating  to  health  Jgjg'  ffg'  1 45; 

4  or  acceptability  of  the  applicant  for  insurance,  and  shall  act  as  super- 

5  vising  and  advising  physician  for  the  medical  department  of  all  the 

6  savings  and  insurance  banks. 

1  Section  17.     No  charge  shall  be  made  to  the  banks  by  the  General  fcSy  and 

2  Insurance  Guaranty  Fund  or  by  the  commonwealth  for  the  services  "o^'to  be''^'t'h- 

3  which  the  state  actuary  or  the  state  medical  director  renders  and  for  the  igoT^'sGi'^s^'?' 

4  blanks  and  books  furnished  to  the  savings  and  insurance  banks  under 

5  section  fifteen. 

1  Section  18.     Every  savings  and  insurance  bank  shall,  on  the  third  ^f^^m^ums" 

2  Wednesday  of  each  month,  pay  to  the   General  Insurance  Guaranty  '"q^p^"/^! 

3  Fund  an  amount  equal  to  four  per  cent  of  all  amounts  paid  to  it  as  insurarue 

4  premiums  on  policies  or  in  the  purchase  of  annuities  during  the  pre-  Fund,  cu-. 

5  ceding  month.    Said  sums  shall  be  held  as  a  guaranty  for  all  obligations 

6  on  policies  or  annuity  contracts  of  the  insurance  departments  of  all 

7  savings  and  insurance  banks;  and  so  much  thereof  shall  be  paid  over 


2056 


SAVINGS   B.\NK   LIFE   INSUEANCE. 


[CiLiP.    178. 


to  any  bank,  to  be  applied  in  the  pajTnent  of  losses  or  satisfaction  of  8 
other  obligations  on  said  policies  or  annuity  contracts,  as  may  be  re-  9 
quired  to  prevent  or  to  make  good  an  impairment  of  its  insurance  10 
reserve.  Any  amount  so  paid  to  any  bank  shall  be  charged  to  its  ac-  11 
count,  and  be  repaid,  with  interest  compounded  semi-annually  at  the  12 
rate  of  five  per  cent  per  annum  out  of  the  surplus  funds  of  said  insurance  13 
department  as  soon  and  so  far  as  an  adequate  surplus  exists.  The  14 
amounts  so  advanced  by  the  General  Insurance  Guaranty  Fund  to  any  15 
bank  shall  be  repaid  only  as  abo^•e  provided,  and  shall  not  be  deemed  a  16 
liability  in  determining  the  soh-ency  of  its  insurance  department.  17 


When  funds 
of  General 
Insurance 
Guaranty  Fund 
are  sufficient  it 
may  guarantee 
insurance  risks 
in  certain 
cases,  etc. 
1907,  S61,  5  19. 
1919,  350,  I  40. 


Section  19.  \^^■lene^•er  the  funds  held  by  the  General  Insurance  1 
Guaranty  Fund  are,  in  the  opinion  of  both  the  commissioner  of  insur-  2 
ance  and  the  commissioner  of  banks,  sufficient  therefor,  the  trustees  of  3 
the  fund  may  enter  into  a  contract  with  any  savings  bank  desiring  to  4 
establish  an  insurance  department  to  guarantee  all  the  risks  of  such  5 
bank  until  such  time  as  it  shall  have  a  surplus  of  not  less  than  twenty  6 
thousand  dollars  nor  less  than  ten  per  cent  of  the  aggregate  insurance  7 
reserve.  If  such  guaranty  contract  is  entered  into  by  any  bank,  it  shall  8 
not  be  necessary  to  provide  the  special  insurance  guaranty  fund  pro-  9 
vided  for  in  section  five  before  the  commissioner  of  insurance  and  the  10 
commissioner  of  banks  are  entitled  to  issue  the  certificate  establishing  11 
the  insurance  department  as  p^o^•ided  in  section  three.  12 


of  fund™^°*^  Section  20.     The  funds  of  the  General  Insurance  Guaranty  Fund 

ins^^rance'         shall  be  invested  in  the  same  classes  of  securities  and  in  the  same 

Fund""'^  manner  in  which  the  deposits  of  the  savings  department  are  required 

1907, 561,  §  20.  \)y  law  to  be  invested;   but  the  trustees  of  said  fund  shall  be  at  liberty 

to  deposit  in  any  savings  bank  any  funds  on  hand  which,  by  reason  of 

the  smallness  of  the  amount  or  for  any  other  reason,  cannot,  in  the 

opinion  of  said  trustees,  other^\"ise  properly  be  invested  at  that  time. 


of  profiTs'of'  Section  21.  Sa^•^ngs  and  insurance  banks  shall  annually  set  apart  1 
depar'tment  ^^  '''  surplus  from  the  net  profits  which  have  been  earned  in  the  in-  2 
to  be  set  apart   suTance  department,  an  amount  not  less  than  twenty  nor  more  than    3 

as  an  emer-  ^  irMipi  i 

gency  fund,       scventy-fivc  per  cent  thereof,  until  such  fund  equals  ten  per  cent  oi  the  4 

1907, 561,  §  21.  net  insurance  reserve  or  the  amount  of  the  special  insurance  guaranty  5 

fund,  whichever  is  the  greater.     Such  surplus  fund  shall  thereafter  be  6 

maintained  and  held  to  meet  losses  in  its  insurance  department  from  7 

unexpectedly  great  mortality,  depreciation  in  its  securities,  or  other-  S 

wise.     The  balance  of  the  net   profits   shall   annually  be   distributed  9 

equitably  among  the  holders  of  its  policies  and  annuity  contracts,  such  10 

distribution  to  be  made,  in  the  discretion  of  the  trustees,  either  in  cash  11 

or  by  addition  to  the  amount  payable  under  the  policies  or  annuity  12 

contracts.  13 


Section  22.     Life  insurance  policies  and  annuity  contracts  may  be 


Insurance 
policies.    By 

r9'oT56i°§''''''  signed  on  behalf  of  the  savings  and  insurance  banks  by  the  treasurer  or 
assistant  treasurer,  or  by  such  other  officer  or  employee  of  the  sa\"ings 
and  insurance  banks  as  the  trustees  may  from  time  to  time  determine. 


Percentage 
of  premiums 
to  De  paid 
to  General 


Section  23.     Whenever   the   net   assets   of   the   General   Insurance     1 
Guaranty  Fund  over  all  liabilities  exceed  one  hundred  thousand  dollars    2 


ClIAP.    178.J  SAVINGS   B.ANK   LIFE   INSITR.\NCE.  2057 

3  or  five  per  cent  of  the  aggregate  outstandins  insurance  reserve  of  all  insurance 

,  .  ,    •  111-1  •         1  1  ,.  Guaranty  Fund 

4  savings  and  insurance  banks,  wnicne\er  is  the  greater,  the  trustees  ot  may  be  , 

5  said  fund  may,  with  the  approval  of  the  commissioner  of  insurance,  certain  cases, 

6  reduce  the  percentage  of  premiums  on  insurance  and  annuities  so  pay-  1907,  sr.i,  §  23. 

7  able  to  it  or  altogether  discontinue  the  same;    but  said  trustees  may  '^i^' ^^o.  §  *«• 
S  require  at  any  time  thereafter  said  contribution  to  be  made  at  a  rate 

9  not  exceeding  that  provided  for  in  section  eighteen. 

1  Section  24.     Any  suit  brought  on  or  in  respect  to  any  policy  or  Suits  on 

2  annuity  contract  issued  by  any  savings  and  insurance  bank  shall  be  imJI'sgi.'i  25. 

3  brought  in  the  county  where  such  bank  is  located,  and  within  two  years 

4  after  the  date  of  the  alleged  cause  of  action. 

1  Section  25.     Any  savings  and  insurance  bank  may   at  any  time  issue  of 

2  discontinue  the  issuing  of  insurance  policies  and  annuity  contracts  if  drscontimed.''^ 

3  its  board  of  trustees  has,  at  a  meeting  duly  called  for  the  purpose,  voted  1907,5^1.  §26. 

4  so  to  do  by  a  majority  of  t\\o  thirds  of  its  trustees  present  at  the  meet-  ^^^^-  ^^°'  ^ ^^■ 

5  ing  and  voting.     The  notice  of  such  meeting  shall  be  given  at  least 

6  thirty  days  prior  to  the  date  thereof,  and  shall  be  otherwise  in  accord- 

7  ance  with  any  laws  or  by-laws  governing  the  calling  of  special  meetings 

8  of  trustees.     A  copy  of  the  vote  to  discontinue  said  business,  certified 

9  to  by  the  clerk  of  the  bank  and  sworn  to  by  its  president  or  vice  presi- 

10  dent  and  its  treasurer  or  assistant  treasurer,  shall  be  filed  with  the  com- 

11  missioner  of  banks  and  also  with  the  commissioner  of  insurance.     A 

12  bank  which  has  so  voted  may  reinsure  all  outstanding  policies  and  an- 

13  nuity  contracts  in  any  other  savings  and  insurance  bank,  or,  with  the 

14  approval  of  the  commissioner  of  insurance  and  the  commissioner  of 

15  banks,  in  any  purely  mutual  legal  reserve  life  insurance  company  or- 

16  ganized  under  the  laws  of  the  commonwealth,  if  such  company  does 

17  not  employ  solicitors  of  insurance  or  make  house  to  house  collection  of 

18  premiums,  and  does  not  provide  for  the  pajonent  of  interest  on  its 

19  guaranty  capital  of  more  than  four  per  cent,  if  it  makes  provision  satis- 

20  factory  to  the  commissioner  of  insurance  for  carrying  out  with  reason- 

21  able  convenience  to  policy  holders  and  annuitants  its  existing  con- 

22  tracts.     WTien  a  bank  which  has  voted  to  discontinue  said  business 

23  has  so  reinsured  its  outstanding  policies  and  annuity  contracts,  or  fully 

24  performed  the  same,  it  shall  transfer  to  the  General  Insurance  Guaranty 

25  Fund  all  the  assets  of  the  insurance  department  remaining  after  pay- 

26  ing  all  its  liabilities,  including  special  guaranty  fund  certificates  issued 

27  under  section  four  or  five. 

1  Section  26.     The  commissioner  of  insurance  and  the  commissioner  Examination 

2  of  banks  shall,  at  least  once  in  each  year  and  whenever  they  consider  it  ^oner™?'^' 

3  ex-pedient,  either  alone  or  together,  personally  or  by  deputy  or  assistant,  commissfone? 

4  examine  the  insurance  department  of  each  savings  and  insurance  bank  "gof "|oi  « 07 

5  and  the  General  Insurance  Guaranty  Fund.    At  such  examination  they  i9i9'  35o,  s  lu. 

6  shall  have  free  access  to  the  vaults,  books  and  papers,  and  shall  thor- 

7  oughly  inspect  and  examine  the  affairs  of  any  such  corporation  to  ascer- 

8  tain  its  condition,  its  transactions,  its  ability  to  fulfil  its  obligations,  and 

9  whether  it  has  complied  with  all  the  provisions  of  law  applicable  to  it. 

10  They  shall  preserve  in  a  permanent  form  a  full  record  of  their  proceedings, 

11  including  a  statement  of  the  condition  of  the  insurance  department  of 

12  each  of  said  banks. 


2058 


SAVINGS   B.ANK   LIFE   INSURANCE. 


[CH-^.    178. 


w'i'tnSse's'"ftc         SECTION  27.     Either  of  said  commissioners,  or  his  deputy  or  assistant  1 

1907. 5fii',  §  28.  specially  authorized  by  him  in  wTiting,  may  summon  the  trustees,  officers  2 

or  agents  of  any  such  corporation,  and  such  other  witnesses  as  he  thinks  .3 

proper,  and  examine  them  relative  to  the  affairs,  transactions  and  con-  4 

dition  of  the  insurance  department  or  of  the  General  Insurance  Guar-  5 

anty  Fund,  and  for  that  pm-pose  may  administer  oaths.    Whoever  with-  6 

out  justifiable  cause  refuses  to  appear  and  testify  when  so  required,  and  7 

whoever  obstructs  a  commissioner  in  the  performance  of  his  duty,  shall  8 

be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  by  im-  9 

prisonment  for  not  more  than  one  year.  10 


deTrtments  Section  28.     If  upou  examination  the  insurance  department  of  any 

may  in  certain  saviugs  and  iusuraucc  bank  appears  to  both  the  commissioner  of  banks 
restrained  and  tlic  commissioucr  of  insurance  to  be  insolvent,  or  if  they  find  its  con- 
busTness'."^  ditiou  such  as  to  render  the  continuance  of  its  business  hazardous  to  the 
1919,'  350,'  §  lo.'  public  or  to  the  holders  of  its  policies  or  contracts,  the  commissioners 


shall  apply  or,  if  such  bank  appears  to  have  exceeded  its  powers  or  failed 
to  comply  with  any  provision  of  law,  may  apply  to  the  supreme  judicial 
court,  which  shall  have  jurisdiction  in  equity  of  such  application,  for  an 
injunction  to  restrain  such  department,  in  whole  or  in  part,  from  further 
proceeding  with  its  business.  The  court  may  appoint  one  or  more  re- 
ceivers to  take  possession  of  the  property  of  the  insurance  department, 
subject  to  such  directions  as  may  from  time  to  time  be  prescribed  by  the  12 
court,  without  in  any  respect  affecting  the  operations  of  the  savings  13 
department.  14 


1 

2 

3 
4 

5 
6 
7 
8 
9 
10 
11 


Annual 

statements, 
etc.     Form. 
1907,  661.  §  30. 
1919,  350,  §  40. 


Section  29.  The  treasurer  shall  annually,  within  twenty  days  after 
the  last  business  day  in  October,  file  with  the  commissioner  of  insurance 
and  the  commissioner  of  banks  a  statement  showing  the  financial  con- 
dition of  the  insurance  department  on  the  last  business  day  of  October. 
For  cause  the  commissioners  may  extend  the  time  within  which  any  such 
statement  may  be  filed,  but  not  to  a  date  later  than  the  following  De- 
cember fifteenth.  Such  annual  statement  shall  be  in  the  form  required 
by  the  commissioners,  who  shall  embody  therein  so  much  of  the  forms  8 
now  prescribed  for  life  insurance  companies  and  for  savings  banks  as  9 
may  seem  to  them  appropriate,  with  any  additional  inquiries  they  may  10 
require  for  the  purpose  of  eliciting  a  complete  and  accurate  exhibit  of  the  1 1 
condition  and  transactions  of  the  banks.  The  assets  and  liabilities  shall  12 
be  computed  and  allowed  in  such  statement  in  accordance  with  the  rules  13 
governing  insurance  companies,  except  as  herein  otherwise  provided.  14 
The  president  or  vice  president  of  the  savings  and  insurance  bank  and  15 
five  or  more  of  its  trustees  shall  make  oath  that  the  report  is  correct  16 
according  to  the  best  of  their  knowledge  and  belief.  The  commissioner  17 
of  insurance  and  the  commissioner  of  banks  may  also  at  any  time  require  18 
the  treasurer  to  make  such  other  statement  of  condition  or  furnish  such  19 
other  information  concerning  the  insurance  department  as  they  deem  20 
necessary.  21 


o/clnerai            Section  30.     The  treasurer  of  the  General  Insurance  Guaranty  Fund  1 

Guaranty          ^^^''^'^  annually,  within  thirty  days  after  the  last  business  day  of  October,  2 

Fund  to      ^      file  with  the  commissioner  of  insurance  and  the  commissioner  of  banks  a  3 

Btatement.        statement,  in  such  form  as  said  commissioners  shall  prescribe,  showing  4 

1919^  350,'  §  46'  its  financial  condition  on  the  last  business  day  of  October,  and  shall  also  5 

at  any  time  make  such  statement  of  condition  and  furnish  such  other  G 


CH-^P.    179.]      PROPRIETORS   OF  REAL  ESTATE   LYING   IN   COMMON,   ETC. 


2059 


7  information  concerning  its  business  as  said  commissioners  deem  neces- 

8  sary.    The  president  of  said  fund  and  tliree  or  more  trustees  thereof  shall 

9  make  oath  that  the  report  is  correct  to  the  best  of  their  knowledge  and 
10  belief. 

1  Section  31.     The  commissioner  of  insiu-ance  and  the  commissioner  Annual  report 

2  of  banks  shall  prepare  annually  from  the  said  reports  concerning  insur-  sioners. 

3  ance  departments  and  the  General  Insurance  Guaranty  Fund,  and  com-  1919,'  350,'  j  te. 

4  municate  to  the  general  court  on  or  before  the  first  Wednesday  in  Febru- 

5  ary,  a  statement  of  the  condition  of  each  savings  and  insurance  bank  and 

6  of  said  General  Insurance  Guaranty  Fund,  and  shall  make  such  sug- 

7  gestions  as  they  consider  expedient  relative  to  the  general  conduct  and 

8  condition  of  each  bank  visited  by  them. 

REFERENCE. 

Taxation  of  funds  of  insurance  departments  and  of  General  Insurance  Guaranty 
Fund,  Chap.  63,  §  IS. 


CHAPTER     179. 


PROPRIETORS  OF  WHARVES,  REAL  ESTATE  LYING  IN  COMMON,  AND 

GENERAL   FIELDS. 


Sect. 

■wharves    akd    beal    estate    lying    in 


9. 
10. 
11. 
12. 
13. 
14. 
15. 
16. 
17. 


Application  for  incorporation. 
Notice,  etc.,  o{  first  meeting. 
Organization. 
Clerk,  oath,  duties. 
Treasurer,  duties  and  powers. 
Proprietors  may  sue  and  be  sued,  etc. 
Proprietors  may  make  by-laws. 
Power  of  moderator. 
Powers  of  proprietors  at  legal  meeting. 
Votes.     Proxies. 

Proprietors  may  raise  money,  etc. 
Assessments,  how  collected. 
Redemption  of  shares. 
Sale  by  proprietors. 
Deposit  of  records. 
Corporate  powers,  etc.,  to  remain. 
After  division  meetings  may  be  held, 
etc. 


GENERAL    FIELnS. 

18.  Meetings,  etc. 

19.  Meetings,  etc.,  how  called.     Votes. 

20.  Clerk,  assessors,  etc.     Oath. 

21.  Field  drivers. 


Sect. 

22.  Regulations. 

23.  Proprietors  of  enclosed  land  not  to  vote. 

24.  Trespass. 

25.  Assessment  of  money. 

26.  Clerk  to  issue  warrant  for  collecting, 

etc. 

27.  Proprietor  injured  by  beasts  of  stranger. 

28.  Apportionment  of  fence,  etc. 

29.  Proprietors,    when    not    to    maintain 

fence. 

30.  Expense  of  apportioning  fence,  etc. 

31.  Proceedings  when  part  of  fence  assigned 

is  deficient. 

32.  Party    neglecting    to    repair   liable    to 

double  damages,  etc. 

33.  Liability  to  repair  in  ease  of  sudden 

destruction,  etc. 

34.  Proprietor  may  enclose  his  land. 

35.  Proprietors  to  run  lines  once  in   two 

years,  etc. 

36.  Superior  court  may  order  proprietors  to 

fence  land  as  general  field. 

37.  After  order,  proprietors  to  have  powers 

as  if  enclosed  by  consent. 

38.  Division  of  general  field  upon  petition. 

39.  Same  subject. 

40.  Discontinuance  of  general  fields. 


■WHARVES  AND  REAL  ESTATE   LYING   IN   COMMON. 


1  Section  1.     Upon  written  application  of  five  or  more  proprietors  of  ^rm'^"''™ 

2  lands,  wharves  or  other  real  estate  held  in  common  to  a  justice  of  the  ''i'Vjs  «  ^ 

3  peace,  stating  that  they  intend  to  organize  themselves  as  a  corporation,  1735-G,  5,  |\. ' 

4  he  shall  issue  his  warrant  to  one  of  the  applicants,  directing  him  to  call  nIsTsbJ'i  l  ' 


2060 


PROPEIETORS    OF   REAL   ESTATE    LYING   IN    COMMON.         [ChAP.    179. 


R.  S.  43, 
§§1,2. 
G.  S.  67, 
§§1,2. 


a  meeting  of  all  the  proprietors  and  expressing  in  the  warrant  the  time,     5 
place,  occasion  and  purpose  of  the  meeting.  p.  s  hi,  §§  i,  2.  6 


R.  L.  123,  §  1. 
1  Mass.  159. 


8  Pick.  455. 
24  Pick.  304 


10  Met.  408. 
153  Mass.  42. 


Sfiret  meeting  SECTION  2.  The  meeting  shall  be  called  by  posting  a  notice  contain- 
"12-13,9  §1.  ing  the  substance  of  the  warrant,  signed  by  the  person  to  whom  the 
1753-4!  i!  §  i.  warrant  is  directed,  fourteen  days  at  least  before  the  meeting,  in  one  or 
R.  s.'43,'|3.'  more  public  places  in  the  town,  and  by  publishing  it  in  a  newspaper,  if 
p.'l.'in,  §^3.  any,  published  in  the  county  where  the  estate  lies;  otherwise,  in  a  news- 
10  Me't'ios."     paper  published  in  an  adjoining  county. 


Organization. 
1712-13, 9,  * 
1735-6,  5,  §  1. 
1753-4,  1.  §  1. 
17S3,  39,  §  1. 
R.  S.  43, 
§§  4,  5. 
G.  S.  67, 
§§  4,  5. 
P.  S.  Ill, 
§§4,5. 

1897,  496,  5  7. 
R.  L.  123,  §  3. 


Section  .3.  At  such  meeting,  by  vote  of  a  majority  in  number  and  1 
interest  of  all  the  proprietors,  they  may  organize  themselves  as  a  cor-  2 
poration  under  this  chapter;  and  they  may  thereupon  choose  a  clerk,  3 
treasurer,  collector  and  such  committees  and  other  officers  as  they  deem  4 
necessary  for  the  management  of  their  affairs,  and  may  agree  upon  and  5 
direct  the  manner  of  calling  future  meetings.  Each  officer  chosen  by  6 
the  proprietors  shall  hold  his  office  until  his  successor  is  qualified.  The  7 
clerk,  treasurer  and  collector  shall  forthwith  make,  sign,  swear  to  and  8 
file  for  record  in  the  office  of  the  state  secretary  a  certificate  setting  9 
forth  the  name  of  the  corporation,  its  purpose,  the  town  and  county  10 
where  it  is  located,  the  date  of  the  meeting  for  organization  and  any  11 
adjournments  thereof,  and  any  other  facts  of  importance  contained  12 
in  the  proceedings  of  organization;  otherwise,  the  organization  shall  13 
be  void.  14 


Clerk,  oath, 
duties. 

1712-13,  9.  §  1. 
1753-4,  1,  §  1. 
1783,39,  §  1. 
R.  S.  43,  §  14. 
G.  S.  67,  §  6. 


Section   4.      The  clerk  shall  be  sworn,  and  shall  record  all  votes,  1 

orders  and  proceedings  of  the  proprietors  in  books  which  he  shall  keep  2 

for  that  purpose  until  they  are  delivered  to  the  town  clerk  as  hereinafter  3 

provided.                          p.  s.  in,  §6.                           r.  l.  123,  §4.  4 


Treasurer, 
duties  and 
powers. 
1726-7,  15,  §  1 
1783,  39,  §  7. 
R.  S.43,  §  15. 
G.  S.  67,  §  7. 
P.S.  ill,  §7. 
R.  L.  123,  §  5. 


Section  5.  The  treasurer  shall  demand  and  receive  all  money  due  or 
belonging  to  the  proprietors,  shall  sue  for  and  recover  in  his  own  name 
to  their  use  all  fines  and  penalties  incurred  under  sections  seven  and  eight, 
shall  pay  out  all  money  in  his  hands  according  to  the  order  of  the  pro- 
prietors and  shall,  from  time  to  time  when  required,  render  his  accounts 
thereof. 


Section  6.     Such  proprietors  may  sue  and  be  sued  as  a  body  cor- 


Proprietorg 
may  sue  and  be 

i694-5!'i5,  §  1.  porate;  and  an  action  brought  by  the  corporation  for  trespass  on  the 
i783"39'f'4^  1-  common  property  may  be  pleaded  in  abatement  or  answered  in  bar  of 
1824;  74.'  an  action  for  the  same  trespass  brought  by  any  of  the  proprietors  in  his 

G.  s.  67',  §  s. '    individual  capacity.  p.  s.  111,  §8.  r.  l.  123,  §6.  153  Mass.  42. 


Proprietors 
may  make 
by-laws. 
1727,9,  I  1. 
1783,39,  §  1. 
R.  S.43,  §  11. 
G.S.  67,  §9. 
P.S.  Ill,  §9. 
R.  L.  123,  §  7. 


Section  7.  They  may  make  by-laws  consistent  with  law  for  the 
orderly  conducting  of  their  business,  with  penalties  for  the  breach  thereof 
not  exceeding  three  dollars  for  each  ofTence;  but  by-laws  with  penalties 
annexed  shall  be  approved  by  the  coimty  commissioners  for  the  county 
where  the  estate  lies. 


modlrator.  Section  S.     The  moderator  of  a  meeting  of  the  proprietors  shall  have     1 

R^l'll'lfs     ^'^^  same  power  as  the  moderator  of  a  town  meeting,  except  the  power    2 
G.  s.  67,  i  10.    of  confining  a  person  or  causing  him  to  be  removed  from  the  meeting.     3 


Chap.  179.]        proprietors  of  re.\l  est.\te  lying  in  common.  2061 

4  Whoever  resists  or  disobeys  his  orders  shall  be  subject  to  the  pecuniary  p.  s.  in,  §  lo. 

5  penalties  provided  for  the  like  offences  at  a  town  meeting.  •  i-  .  §  s. 

1  Section  9.     The  proprietors  may,  at  a  legal  meeting,  exercise  any  of  ^°ieto7s'at'"^°' 

2  the  powers  granted  to  them  in  this  chapter;   but  no  business  shall  be  J7^f9_"3''9°f2 

3  acted  on  unless  set  forth  in  the  notice  for  the  meeting.  1753-4, 1,  §  1. ' 

1783,  39,  §  1.  G.  S.  67,  §  11.  R.  L.  123,  §  9. 

R.  S.  43,  |5.  P.  S.  Ill,  §11.  143Ma3s.no. 

1  Section  10.     Each  proprietor  may  vote  according  to  the  number  of  p^oxf,;, 

2  his  shares  or  the  amount  of  his  interest,  if  known;  and  if  not  known,  }7*j'??'c^|- 

o       1  •  1      11  n  A  1  •  .  H.  b.  43,  §  fa. 

3  the  proprietors  shall  vote  equally.     Absent  proprietors  may  vote  by  g.  s.  67,  §  12. 

4  WTitten  proxy.  p.  S.  111,  §12.  R.  L.  123,  §10.  119  Mass.  sss. 


1  Section  11. .  The  proprietors  may  by  vote  adopt  such  measures  and  ^°^^^°l°" 

2  levy  such  assessments  in  proportion  to  their  respective  rights  and  in-  ^""J'y-  <;'?• , , 

o-i  11  «..  .  172b-7,  15,  §  1. 

S  terests  in  the  property  as  they  deem  proper  tor  managing,  improving  or  1753-4, 1,  §  2. 
4  dividing  their  common  property  and  carrying  on  their  business.  r.  s.'43,'§7.' 

G.  S.  67,  §13.  R.  L.  123,  §11.  10  Mass.  5. 

p.  S.  Ill,  §13.  2  Mass.  475.  Ill  Mass.  454. 

1  Section  12.     If  a  proprietor  fails  to  pay  an  assessment  for  six  months  Assessments, 

2  after  demand  therefor  by  the  collector  or  other  proper  officer,  or  after  a  1753.^.  ^§2! 
.  3  notice  of  such  assessment  posted  and  published  in  the  manner  prescribed  r.^I.'Is,'  ^  ^' 

4  for  the  first  meeting,  the  committee  of  the  proprietors  or  other  officers  ff  1 1^ 

5  authorized  by  them  for  that  purpose  may  sell  by  public  auction  and  give  i^  !*;??• 

6  to  the  purchaser  a  deed  of  so  much  of  the  right  or  share  of  such  proprietor  H  14, 1^5'. 

7  as  is  sufficient  to  pay  the  amount  so  due  from  him  and  all  the  reasonable 

8  charges  of  the  sale,  first  giving  thirty  days'  notice  of  the  time  and  place 

9  appointed  for  such  sale  in  the  manner  prescribed  for  notifying  the  first 
10  meeting. 

1  Section  13.     The  proprietor  of  the  share  or  part  sold  may,  witloin  one  Redemption 

2  year  after  the  sale,  redeem  it  by  paying  to  the  purchaser  or  his  assigns  1753  "^T,  §  2. 

3  the  purchase  price  with  interest  at  the  rate  of  twelve  per  cent  a  year  from  r  *|;  |f;  |  f^. 

4  the  time  of  the  sale.  g.  s.  67,  §  le.  p.  s.  111,  §  16.  r.  l.  123,  §  13. 

1  Section  14.     If  there  are  ten  or  more  proprietors,  they  may,  by  vote  of  proprietors. 

2  more  than  two  thirds  both  in  number  and  interest  at  a  legal  meeting,  sell  rf^|'67°i  17 

3  their  estate  and  divide  the  proceeds  thereof.  p. s.  111,  §  17. 

R.L.  123.  §14.  3  Pick.  396.  8  Allen,  11. 

2  Mass.  476.  8  Piclc.  455.  143  Mass.  110. 

IO.Mhss.  146.  8  Gush.  21.  218  Mass.  487. 
12  Mass.  415. 

1  Section  15.     After  the  final  division  of  their  common  property,  the  Deposit  of 

2  proprietors   may  deposit   their   records   with  the   clerk   of   the   town  nss,  39.  §  9. 

3  where  the  land  or  any  part  of  it  lies;  and  the  clerk  may  make  and  certify  r.^I.' «,' 1 17. 

4  copies  from  the  records  as  the  clerk  of  the  proprietors  might  have  done.  g.^s.'67?§\s.' 

p.  S.  Ill,  §18.  R.  L.  123,  §  15. 

1       Section  1G.     A  final  di\-ision  of  the  common  property  shall  not  dis-  Corporate 


2  solve  the  corporation  until  the  expiration  of  ten  years  thereafter;   but  to  remain 


powers,  etc., 
to  remain. 

3  the  proprietors  at  the  time  of  the  division  and  their  heirs  shall  retain  their  n.°s.'4.?,'  I  i^s. 

4  corporate  powers  for  the  purpose  of  collecting  all  assessments,  debts  and  p.l.ni,  §  ?g. 

5  effects  due  or  belonging  to  the  corporation,  and  shall  be  liable  for  its  J^-  ^- 1-^'  ^  ^'^• 

6  debts. 


2062 


PROPRIETORS   OF   GENERAL  FIELDS. 


[Chap.  179. 


After  division 
meetings  may 
be  held.  etc. 
1790,  40,  §  1. 
R.  S.  43.  5  19. 
G.  S.  67,  §  20. 
P.  S.  111.  §20. 
R.  L.  123,  I  17. 


Section  17.  The  proprietors  may,  within  ten  years  after  such  divi- 
sion, call  and  hold  meetings  and  vote  and  raise  money  by  assessments, 
as  before  provided,  for  the  payment  of  their  debts  and  all  other  charges 
and  demands  against  them,  and  may  do  all  other  law^ful  acts  necessary 
for  closing  their  business. 


Meetings,  etc. 
1785,  53,  §  1. 
R.  S.  4.3,  §  20. 
G.  S.  67.  §  21. 
P.  S.  Ill,  §21. 
R.  L.  123,  §  18. 


GENERAL  FIELDS. 

Section  18.     If  several  distinct  lots  or  parcels  of  land  are  enclosed  1 

and  fenced  in  one  common  field,  or  if  all  the  proprietors  of  such  lands  2 

agree  so  to  enclose  them,  the  proprietors,  if  not  less  than  five,  may,  in  the  3 

manner  hereinafter  pro\dded,  hold  regular  meetings  for  the  purpose  of  4 

managing  their  common  concerns.  5 


Meetings,  etc., 
how  called. 
Votes. 

1712-13,  9,  §  1. 
1753-1,  1,  §  1. 
1758-9.  33,  §  1. 
1785.  53, 
§§  1,  10. 
1820, 1. 
R.  S.  43, 
§1  21-23. 
G.  S.  67, 
§§  22-24. 


Section  19.     On  application  of  two  or  more  proprietors  to  a  justice  of  1 

the  peace,  he  shall  issue  his  warrant  for  a  meeting,  as  provided  in  section  2 

one,  which  shall  be  called  either  in  the  manner  prescribed  in  section  two  3 

or  by  personal  notice  served  on  each  proprietor  fourteen  days  at  least  4 

before  the  time  appointed  for  the  meeting.     Each  proprietor  may  vote  5 

according  to  the  relative  amount  or  value  of  his  interest,  if  kno^-n;  other-  6 

wise,  in  accordance  with  section  ten.  7 

p.  S.  Ill,  |§  22-24.  R.  L.  123,  §  19.  3  Gray,  487.  119  Mass,  583. 


Clerk, 

assessors,  etc. 
Oath. 

1727-8,  13,  §  2. 
1741-2,  3,  §  1. 
175.3-4.  1,  §  1. 
1785,  53,  §  3. 
R.  S.  43,  I  24. 
G.  S.  67,  I  25. 


Section  20.  The  proprietors  may  from  time  to  time  choose  a  clerk, 
three  or  more  assessors,  a  collector  and  such  other  officers  as  they  find  to 
be  necessary;  each  of  whom  shall  continue  in  office  until  removed  by  the 
proprietors  or  until  his  successor  is  qualified.  The  clerk  and  assessors 
shall  be  sworn.  p.  s.  hi,  §  25.  r.  l.  123,  §  20. 


i727-8"rr§2       Section  21.     They  may  choose  one  or  more  field  drivers,  who  shall  1 

R*s'4^3'|34     hfi'^'e'  and  exercise  the  same  powers  M-ith  respect  to  the  general  fields  as  2 

g;  s:  6?;  §  26:    geld  drivers  chosen  by  a  town.  p.  s.  111,  §  26.  r.  l.  123,  §  21.  3 

n^53°ri  Section  22.     They  may  adopt  such  rules  as  to  pastm-ing  the  land  and  1 

G  1 67'  1 27     as  to  other  matters  in  which  they  have  a  common  interest  as  they  consider  2 

p.s.iii,  |27.   just  and  equitable  and  most  for  the  general  good;  but  in  all  other  respects  3 

each  proprietor  may  manage  and  cultivate  his  land  as  he  tliinks  best.  4 

rndosriTand'        Section  23.     At  meetings  of  proprietors  for  adopting  rules  or  regu-  1 

isse^lzie'"'       lations  as  to  pastiu-ing,  land  of  a  proprietor  enclosed  for  liis  exclusive  2 

G.  s.'67,  §28.    benefit  shall  not  be  valued  or  reckoned  in  determining  his  right  to  vote  3 

R.  L.  123,  §"23.  on  questions  relative  to  pasturing  his  land.  4 


Trespass. 

C  L. 

211 

,  §1. 

1698, 

12, 

§3. 

1758-9,  33,  §  2. 

1785, 

53, 

§  5. 

R.  S. 

43, 

§35. 

G.S. 

07, 

§29. 

P.  S. 

111, 

§  29. 

R.  L. 

123 

1,  §  24. 

Assessment 

of  money 

Section  24.  If  a  proprietor  puts  horses,  cattle  or  other  beasts  into 
the  general  field  contrary  to  the  regulations  of  the  proprietors,  either  by 
putting  in  more  than  the  number  allowed  him,  or  by  putting  them  in  be- 
fore the  day  fixed  therefor,  or  by  keeping  them  therein  longer  than  the 
time  limited,  he  shall  be  considered  a  trespasser,  and  his  beasts  may  be 
impounded  as  taken  doing  damage. 


1 
2 

3 
4 
5 
6 


Section  25.     The  proprietors  may  from  time  to  time  raise  money  for     1 

i?27^8' if'  §  3'  defraying  their  common  charges  and  managing  their  affairs,  which  shall     2 

be  assessed  by  the  assessors  upon  the  several  proprietors  in  proportion  to     3 


1741-2,  3. 


ClIAP.    179.]  PROPRIETORS    OF   GENERAL   FIELDS.  2063 

4  their  respective  interests;  and  a  proprietor  aggrieved  by  such  assessment  1153-4  i  §  2. 

5  may  apply  for  an  abatement  to  the  comity  commissioners,  ■nho  shall  r. s.'43.'§25. 

6  hear  and  determine  the  case,  and  whose  judgment  thereon  shall  be  final,  p.s.  ii'i,  §  so. 

E.  L.  123,  §  25. 


1  Section  26.     The  clerk  shall  issue  his  warrant  to  the  collector,  re-  cierk  to  issue 

2  quiring  him  to  collect  all  amounts  so  assessed  and  to  pay  them  o^'e^  to  eou"ctiiig!"^ 

3  the  clerk  or  other  proper  officer  according  to  the  orders  of  the  proprietors.  1726-7, 15,  §  1. 

4  The  collector  shall  collect  said  amounts  in  the  same  manner  as  collectors  J7I1II;  af  §\^ 

5  of  towns  are  authorized  to  collect  town  taxes. 

1753-4,  l.§  2.  R.  S.43.  §2fi.  P.  S.  Ill,  §  31. 

1785,  53,  §  3.  G.  S.  67,  §  31.  R.  L.  123,  §  26. 

1  Section  27.     A  proprietor  injured  in  his  lands  by  the  beasts  of  a  Proprietor 

2  stranger  shall  have  the  same  remedy  therefor  as  if  his  land  had  been  iTeas'tsof^ 

3  enclosed  and  used  separately.  i698, 6,  §  s.  i785,  53,  §  6.  stranger. 

R.  S.  43,  §  37.  G.  S.  67,  §  32.  P.  S.  Ill,  §  32.  R.  L.  123,  §  27. 

1  Section  28.     Tlie  whole  fence  enclosing  such  general  field  shall,  so  Apportion- 

2  far  as  found  convenient,  be  apportioned  among  the  proprietors  according  "t™  °   '""'^' 

3  to  tlie  number  of  acres  held  and  cultivated  or  otherwise  used  by  each ;  and  u\9s,  12. 1 3. 

4  the  part  to  be  maintained  by  each  proprietor  shall  be  apportioned  to  him  R^i'Ji^^h. 

5  by  two  or  more  fence  viewers,  unless  the  proprietors  agree  on  such  ap-  pfni  V33 

6  portionment.     The  proportion  of  fence  of  each  proprietor  shall  be  re-  k-  ^- 123,  §  28. 

7  corded  in  the  books  of  the  proprietors  by  the  clerk,  if  any;  otherwise,  by 

8  the  clerk  of  the  town  where  the  general  field  is  situated. 

1  Section  29.     A  proprietor  shall  not,  so  long  as  he  declines  to  cultivate  Proprietors, 

2  his  land  or  use  it  for  pasturing,  for  the  growth  of  wood  or  otherwise,  be  mafntJin  fence. 

3  required  to  maintain  any  part  of  the  fence  or  to  pay  any  assessment  on  u^s! H,' i 29.' 

4  account  of  his  land.  g.  s.  67,  §  34.  p.  s.  111,  §  34.  r.  l.  123,  §  29. 

1  Section  30.     The  expense  of  apportioning  the  fence  and  also  of  apporlion^ing 

2  making  and  maintaining  such  part  thereof  as  cannot  be  conveniently  ^^"ofitl'3  5 1 

3  and  justly  apportioned  to  any  one  proprietor  shall  be  borne  by  all  the  !p*'|^' 

4  proprietors  liable  to  be  assessed  in  proportion  to  their  respective  interests;  R.  s'.  43,  §  30. 

5  and  the  part  apportioned  to  each  proprietor  shall  be  made  and  main-  rV.s.ni.  §.3.5. 

6  tained  by  him  so  long  as  he  uses  his  part  of  the  general  field  for  pasturing, 

7  planting,  mowing  or  otherwise. 


R.  L.  123,  §  30. 


1  Section  31.     If  the  part  of  the  fence  apportioned  to  a  proprietor  be-  Proceedings 

2  comes  deficient  and  he  does  not  repair  it  within  three  days  after  notice  f^nce  assigned 

3  of  such  deficiency  has  been  given  to  him  by  a  fence  viewer  of  the  town,  no4^3s,°§'i. 

4  it  may  be  repaired  by  any  other  proprietor.     Two  or  more  fence  viewers  §  g  ^f  I  g,,- 

5  may  examine  such  repairs,  and,  if  they  adjudge  them  sufficient,  may  p-  '^  ^^'^  §  36. 

6  ascertain  and  determine  the  cost  of  the  same  and  make  a  signed  statement 

7  thereof  and  of  the  amount  of  their  fees. 

1  Section  32.     The  person  making  such  repairs  may  demand  of  the  pro-  Party  ncgiect- 

2  prietor  bound  to  make  them,  or  of  the  tenant  holding  under  him,  double  luibieVoXubie 

3  the  cost  of  the  repairs  and  of  the  fees  of  tlie  fence  viewers  so  ascertained;  ns^l^'ss;'!' 2. 

4  and  if  they  are  not  paid  within  one  month  after  notice  and  demand,  he  {™|'4|'|32 

5  may  recover  them  in  tort.       g.  s.  67,  §  37.       p.  s.  111,  §  37.       r.  l.  123,  §  32. 


2064 


PROPRIETORS    OF   GENERAL   FIELDS. 


[Chap.  179. 


repa^r'mcase         SECTION  33.     If  a  part  of  tlic  feiice  is  Suddenly  blown  down  or  carried 

stro"tfo™etc".     away  by  a  flood  or  tempest  at  a  time  when  the  crops  of  grain  or  grass  in 

R^s'll'lls     *^®  ^^'^  ^^^  thereby  exposed  to  immediate  destruction  or  injury,  the 

G.s  67!  §38     proprietor  to  whom  such  part  of  the  fence  was  assigned  shall  repair  it 

R.  L.  123,  §  33.  within  twenty-four  hours  after  notice  thereof  given  to  him  by  a  fence 

viewer;  and  if  he  fails  so  to  do,  the  fence  may  be  repaired  by  any  other 

proprietor,  who  may  recover  double  the  cost  of  the  repairs  and  fees,  as 

provided  in  the  preceding  section. 


Proprietor 
may  enclose 
his  land. 
1796,  13. 
R.  S.  43,  §  36. 
1855,418.  §  1. 
Ci.  S.  67,  §  39. 
P.  S.  111.  §  39. 
R.  L.  123,  §  34. 


Section  34.  A  proprietor  may  enclose  his  land  at  his  own  expense; 
and,  so  long  as  he  keeps  it  enclosed  with  a  sufficient  fence,  may  cultivate 
and  use  it  as  he  thinks  fit;  and  during  such  period,  so  far  as  such  enclosed 
land  is  concerned,  he  shall  neither  be  assessed  for  any  expenses  incident 
to  the  common  field  nor  exercise  any  control  over  the  portion  thereof  not 
enclosed. 


Proprietors  to 
run  lines  once 
in  two  years, 
etc. 

1692-3.  28,  §  2. 
1785,  S3,  §  7. 
R.  S.  43,  §  38. 
G.  S.  67.  §  40. 
P.  S.  in.  §40. 
R.  L.  123,  §  35. 


Section  35.  Every  proprietor  of  land  lying  unfenced  in  a  general 
field  shall  once  in  every  two  years,  if  requested  by  the  owner  of  the  ad- 
joining land,  run  lines  with  such  owner  between  their  lots  and  make  and 
keep  up  the  boundaries  between  them  by  suflScient  bound  stones,  at  their 
joint  expense.  If  he  fails  so  to  do  after  seven  days'  notice  by  the  ad- 
joining owner,  he  shall  forfeit  two  dollars  to  the  use  of  such  adjoining 
owner. 


Superior  court 
may  order  pro- 
prietors to 
fence  land  as 
general  field. 
1818,  11. 
R.  S.  43, 
§§  39,  40. 
G.  S.  67. 
§§41,42. 
P.S.  Ill, 
§§  41.  42. 

After  order, 
proprietors  to 
nave  powers  as 
if  enclosed  by 
consent. 
1818,  11. 
R.  S.  43,  5  41. 
G.  S.  67,  §  43. 
P.  S.  Ill,  §  43. 
R.  L.  123,  §  37. 


Section  36.     If  it  is  for  the  interest  of  the  proprietors  of  five  or  more  1 

parcels  of  land  to  enclose  them  in  one  common  field,  the  superior  court  2 

for  the  county  where  the  land  or  any  part  of  it  lies  may,  upon  the  ap-  3 

plication  of  a  majority  in  interest  of  the  proprietors,  after  notice  to  all  4 

other  persons  interested  and  a  hearing,  order  it  to  be  so  enclosed,  if  it  5 

appears  to  be  for  the  common  benefit  of  the  parties.       R.  l.  123,  §  36.  6 

Section  37.     After  a  common  or  general  field  is  so  established  by  an  1 

order  of  the  court,  the  further  proceedings  in  relation  thereto  shall  be  2 

the  same  as  are  provided  when  a  field  is  so  enclosed  by  the  consent  of  3 

the  proprietors;   and  the  proprietors  shall  be  entitled  to  the  privileges  4 

and  be  subject  to  the  duties  before  provided  in  this  chapter  relative  to  5 

the  proprietors  of  fields  enclosed  by  consent.  G 


Division  of 
general  field 
upon  petition. 
1(85,  53,  §  13. 
R.S.  43,  §  43. 
G.S.  67,  §44. 
P.S.  Ill,  §44. 
R.  L.  123,  §  38. 


Section  38.  Three  or  more  proprietors  of  lots  in  a  general  field  lying  1 
within  one  general  fence  or  enclosure  may,  by  a  written  petition  to  the  2 
proprietors  of  such  field  at  a  meeting  of  said  proprietors  legally  warned  3 
for  the  purpose,  request  to  have  their  lots,  either  alone  or  jointly  with  4 
any  other  lots  in  such  field,  divided  from  the  remainder  of  the  field  in  5 
order  to  be  enclosed  by  one  common  fence  and  occupied  by  them  as  an  6 
entire  field  separately  from  the  other  proprietors.  If  the  majority  of  7 
proprietors  in  interest  present  at  such  meeting  withhold  or  refuse  their  8 
assent  to  such  division,  the  superior  court  may,  upon  like  application,  9 
appoint  five  disinterested  and  suitable  persons  M-ithin  the  county  where  10 
the  general  field  is  situated,  to  be  a  committee  to  make  the  division,  if  11 
they  deem  it  expedient,  and  to  assign  to  each  field  its  proportion  of  the  12 
partition  fence  which  by  reason  of  such  division  should  be  kept  up  and  13 
maintained  by  the  proprietors  of  the  said  general  fields  respectively.        14 


CiL\p.  ISO.] 


CHARITABLE,    ETC.,    CORPORATIONS. 


2065 


1  Section  39.     The  committee  shall,  as  soon  as  may  be  after  their  ap-  same 

2  pointment,  make  retm-n  of  their  doings  under  their  hands  to  the  court;  u.s'. 

3  and  after  its  acceptance  by  the  court,  the  fields  so  divided  shall  be  deemed  p ;  |; 

4  separate  general  fields  and  the  proprietors  of  the  field  set  off,  and  the  ^-  ^ 

5  remaining  proprietors  of  the  original  field,  respectively,  shall  be  distinct 

6  and  separate  proprietary  bodies,  having  like  powers  and  privileges  and 

7  subject  to  like  duties  'and  liabilities  as  the  proprietors  of  the  original 

8  general  field  before  the  division;  but  no  order  for  such  division  shall 

9  be  made,  and  no  such  committee  appointed,  until  the  other  proprietors 

10  have  had  notice  of  the  petition  for  such  division.     Such  notice  shall  be 

1 1  given  by  serving  upon  the  clerk  of  the  proprietors  a  copy  of  the  petition 

1 2  at  least  thirty  days  before  such  order  or  appointment  is  made. 


subject. 
53.  §  13. 
43,  §  43. 
67,  §  45. 
Ill,  i  45. 
123.  §  39. 


Section  40.     A  majority  in  interest  of  the  proprietors  of  a  common  Discontinu- 
field,  whether  established  by  consent  or  by  order  of  court,  may  discon-  IraTfidls*!" 
tinue  it  at  a  legal  meeting  warned  for  the  purpose;  but  the  discontinu-  nil;  53;  1 1; 
ance  shall  not  take  effect  until  the  expiration  of  six  months  after  such  §;  |;  gf;  1 4I; 

vote.  p.  S.  Ill,  §  40.  R.  L.  123,  §  40. 


CHAPTER     180. 

CORPORATIONS  FOR  CHARITABLE  AND  CERTAIN  OTHER  PURPOSES. 


Sect. 

general  provisions. 

1.  Formation. 

2.  Purposes. 

3.  Organization. 

4.  Encouraging   agriculture,    horticulture, 

etc. 

5.  Investigation  of  proposed  corporation. 

6.  Investigation    of    proposed    charitable 

corporations. 

7.  By-laws.     Officers. 

8.  Increase  of  capital. 

9.  Corporations  may  hold  property.  Limit 

of  amount. 

10.  Change  of  purpose  of  corporation. 

11.  Change  of  name, 

12.  Reports  to  department  of  public  wel- 

fare. 

MEDICAL    CORPORATIO.V. 

13.  Medical  corporation  forbidden  to  con- 

fer degrees. 

HORSE  BREEDING  CORPORATIONS. 

14.  Horse  breeding  corporations  may  hold 

exhibitions. 


Sect. 

labor  or  trade  organizations. 

15.  Labor  or  trade  organizations. 

16.  Commissioner  to  be  satisfied  that  pur- 

pose is  lawful. 

17.  By-laws. 

IS.  Rights  of  members. 

19.  Fines  on  members  of  unions. 


MEDICAL    MILK    COMMISSION. 

20.  Incorporation. 

21.  Name. 

22.  Compensation  to  members  forbidden. 

23.  Contracts  for  milk. 

24.  Power  of  department  of  public  health. 

25.  Penalty  for  breach  of  five   preceding 

sections. 


MISCELLANEOUS    PROVISIONS. 

26.  Change  of  location  of  certain  associa- 

tions. 

27.  Illegal  liquor  selling,  etc.,  makes  char- 

ter void. 

28.  Illegal  boxingmatchmakeschartervoid. 


GENERAL  PROVISIONS. 

1  Section  1.     Seven  or  more  persons,  a  majority  of  whom  are  residents  Formation. 

2  of  the  commonwealth,  may  form  a  corporation  for  any  of  the  purposes  g.^'Jo'.II: 

3  named  in  the  following  section.  isog,  276.  is73,  itg. 

1874,  375,  §1.  P..S.  115,  §1.  R.  L.  125,  §1. 


2066 


CHARITABLE,   ETC.,   CORPORATIONS. 


[Chap.  180. 


Purposes. 

1857 

.56,: 

5  1. 

G.  S. 

32,  §  1. 

1869, 

,276. 

1873, 

,  176. 

1874, 

,375, 

§  2. 

1875, 

,107, 

§  2! 

1877, 

204, 

§  1- 

1878, 

153. 

P.  S. 

115, 

§2. 

R.  L. 

125, 

§2. 

1915, 

213. 

204  Mass. 

487. 

205  Mass. 

219, 

261. 

212  Mass. 

219. 

lOp. 

A.  G 

i.468, 

505,  548,  579. 

3  Op, 

,  A.  G.  12. 

4  Op. 

A.  G 

1.  352. 

Op.  A.  G. 

(1918)  21. 

Organization. 

1857, 

SB,  §  2. 

G.S. 

32,  § 

2 

1874, 

375, 

§§3- 

5. 

P.S. 

115. 

§§3,4. 

1888, 

177. 

1890, 

191. 

R.I,. 

125. 

§3. 

1919, 

333, 

§  11. 

1920, 

2. 

Section  2.  Such  corporation  may  be  formed  for  any  civic,  educa- 
tional, charitable,  benevolent  or  religious  purpose;  for  the  prosecution 
of  any  antiquarian,  historical,  literary,  scientific,  medical,  artistic,  mon- 
umental or  musical  purpose;  for  establishing  and  maintaining  libraries; 
for  supporting  any  missionary  enterprise  having  for  its  object  the  dis- 
semination of  religious  or  educational  instruction  in  foreign  countries; 
for  promoting  temperance  or  morality  in  the  commonwealth;  for  en- 
couraging athletic  exercises  or  yachting;  for  encouraging  the  raising  8 
of  choice  breeds  of  domestic  animals  and  poultry;  for  the  association  9 
and  accommodation  of  societies  of  Free  Masons,  Odd  Fellows,  Knights  of  10 
Pythias  or  other  charitable  or  social  bodies  of  a  like  character  and  pur-  11 
pose;  for  the  establishment  and  maintenance  of  places  for  reading  rooms,  12 
libraries  or  social  meetings;  for  establishing  boards  of  trade,  chambers  13 
of  commerce  and  bodies  of  like  nature.  14 


Section  3.  The  corporation  shall  be  formed  in  the  manner  prescribed  1 
in  and  subject  to  section  nine  of  chapter  one  hundred  and  fifty-five  and  2 
sections  six  and  eight  to  twelve,  inclusive,  of  chapter  one  hundred  and  3 
fifty-six,  except  as  follows:  4 

The  capital  stock,  if  any,  shall  not  exceed  five  hundred  thousand  dollars.  5 
The  agreement  of  association  of  a  corporation  having  no  capital  stock  6 
may  omit  the  statement  of  the  amount  of  the  capital  stock  and  the  par  7 
value  and  number  of  its  shares.  The  par  value  of  its  shares,  if  any,  may  8 
be  ten,  twenty-five,  fifty  or  one  hundred  dollars.  The  fee  to  be  paid  to  9 
the  state  secretary  upon  the  filing  of  the  certificate  of  organization  shall  10 
be  five  dollars.  1 1 


Section  4.    Ten  or  more  persons,  in  any  county,  city  or  town  may 


Encouraging 
agriculture, 

horticulture,  form  a  corporatiou  under  section  three  for  the  purpose  of  encouraging 

G  ^I'le^j  17  agriculture  or  horticulture,  or  for  improving  and  ornamenting  the  streets 

P^gS.  n4,§i|.  and  public  scjuares  of  any  city  or  town  by  planting  and  cultivating 

R.  l!  124]  §  19.  ornamental  trees  therein. 


Investigation 
of  proposed 
corporation. 
1890,  439,  §  1. 
1893.  226,  §  1. 
R.  L.  125,  §  4. 
1906,291,  §  10. 


Section  5.  Before  making  and  issuing  a  certificate  of  incorporation  1 
to  a  corporation  formed  for  any  of  the  purposes  described  in  section  two,  2 
the  state  secretary  may  forward  a  statement  to  the  aldermen  of  the  3 
city,  except  Boston,  or  to  the  selectmen  of  the  town,  where  such  society  4 
is  to  have  its  principal  office  or  rooms,  and,  if  such  office  or  rooms  are  to  5 
be  in  Boston,  to  the  police  commissioner,  giving  a  list  of  the  applicants  6 
for  incorporation,  the  purpose  thereof  as  stated  by  them,  the  location  7 
proposed  to  be  occupied  and  all  other  facts  which  may  be  stated  in  the  8 
application  for  incorporation.  The  mayor  and  aldermen,  selectmen  or  9 
police  commissioner,  upon  the  receipt  of  such  statement,  shall  immediately  10 
make  an  investigation  and  ascertain  whether  any  of  the  proposed  in-  11 
corporators  have  been  engaged  in  the  illegal  selling  of  intoxicating  liquor  12 
or  in  keeping  places  or  tenements  used  for  illegal  gaming,  or  whether  they  13 
have  been  engaged  in  any  other  business  or  vocation  prohibited  by  law,  14 
and  shall  forthwith  report  to  the  state  secretary  all  the  facts  ascertained.  15 
If,  in  his  opinion,  it  appears  from  said  report  or  otherwise  that  the  probable  16 
purpose  of  the  formation  of  the  proposed  organization  is  to  cover  an  17 
illegal  business,  he  shall  refuse  to  issue  a  certificate  of  incorporation.  18 


of  pfoposed"         Section  6.     Before  making  and  issuing  a  certificate  for  the  incor-     1 
corporations,     poratiou  of  a  charitable  corporation  the  state  secretary  shall  also  forward    2 


Chap.  ISO.]  ch.\eitable,  etc.,  corporations.  \  2067 


§5. 


3  the  statement  described  in  the  preceding  section  to  the  department  of  i^l'i^s' 

4  public  welfare,  which  shall  immediately  make  an  investigation  as  to  the  j-jjo- pj'  ^ 

5  applicants  for  incorporation  and  as  to  the  purposes  thereof,  and  any 

6  other  material  facts  relative  thereto,  and  shall  give  them  a  public  hearing, 

7  notice  of  which  shall  be  published  once  a  week  for  three  successive  weeks 

8  in  some  paper  published  in  the  county  where  the  corporation  is  to  have 

9  its  principal  office  or  rooms,  and  if  said  office  or  rooms  are  to  be  in  Boston, 

10  in  some  Boston  daily  paper,  the  last  publication  to  be  at  least  three  days 

1 1  before  the  day  set  for  the  hearing,  and  shall  forthwith  report  to  the  state 

12  secretary  all  the  facts  ascertained  by  it.    If  it  appears  to  him  from  said 

13  report  or  otherwise  that  the  probable  purpose  of  the  formation  of  the 

14  proposed  corporation  is  to  cover  any  illegal  business,  or  that  the  persons 

15  asking  for  incorporation  are  not  suitable  persons,  from  lack  of  financial 

16  ability  or  from  any  other  cause,  he  shall  refuse  to  issue  his  certificate. 

17  If  he  refuses,  the  applicants  may  appeal  to  the  superior  court,  which 

18  shall  hear  the  case  and  finally  determine  whether  or  not  the  certificate 

19  of  incorporation  shall  be  issued. 

1  Section  7.     The  corporation  may  prescribe  by  its  by-laws  the  manner  By-iaws. 

2  in  which,  and  the  officers  and  agents  by  whom,  its  purposes  may  be  ac-  ?s74!37s,  §  e. 

3  complished,  and,  instead  of  the  directors  and  other  officers  to  be  chosen  p*s^'A\^  ^' 

4  at  the  first  meeting,  it  may  have  a  board  of  other  officers  with  the  powers  f^^  f  •  ^25  §  e 

5  of  directors,  and  presiding,  financial  and  recording  officers  with  the  IP?  ^J"^'-  i?°- 

„  .>  •  I        .       ,  111  1    •  .^  n  •  2O0  Mass.  2hl. 

0  powers  01  president,  treasurer  and  clerk ;  and  its  certificate  of  organiza-  209  m.iss.  48. 

7  tion  may  be  made,  signed  and  sworn  to  by  its  presiding,  financial  and  214  mJJss!  2S6. 

8  recording  officers  and  a  majority  of  its  other  officers  ha\ing  the  powers  uois)' 21. 

9  of  directors;  and  the  certificate  issued  by  the  state  secretary  under  sec- 

10  tion  twelve  of  chapter  one  hundred  and  fifty-six  shall  be  modified  to 

11  correspond  with  the  facts  in  each  case. 

1  Section  8.     Such  corporation,  if  organized  under  general  laws,  at  a  increase  of 

2  meeting  called  for  the  purpose  may  increase  the  amount  of  its  capital  isss.^'iV?. 

3  stock  and  the  number  of  shares  therein  to  an  amount  not  exceeding  five  ^'  ^'  ^^^'  ^  ^" 

4  hundred  thousand  dollars. 

1  Section  9.     Any  corporation  organized  under  general  or  special  laws  Corporations 

2  for  any  of  the  purposes  mentioned  in  this  chapter  may  hold  real  and  mopeHyl 

3  personal  estate  to  an  amount  not  exceeding  two  million  dollars,  which  amoun"! 

4  shall  be  devoted  to  the  purposes  set  forth  in  its  charter  or  agreement  of  g^s'I^'I*' 

5  association,  and  it  may  receive  and  hold,  in  trust  or  otherwise,  funds  \F*-?i?'^J- 

6  received  by  gift  or  bequest  to  be  devoted  by  it  to  such  purposes.    This  is^''.  96.' 

7  section  shall  not  limit  the  amount  of  property  which  may  be  held  by  a  1901)96; 

8  corporation  untler  the  authority  of  any  special  law.  R.  l.  125,  §  s. 

1915.  209,  §§  1,  2.  153  Mass.  77.  212  Mass.  555. 

1917,45,  §§  1-3.  194  Mass.  2S0.  3  Op.  A.  G.  12,  31. 

1  Section  10.    Such  corporation  may,  at  a  meeting  duly  called  for  the  change  of 

2  purpose,  by  vote  of  all  its  members,  add  to  or  change  the  purpose  for  ?OTpo/ation. 

3  which  it  was  incorporated,  if  the  additional  or  new  purpose  is  authorized  ^^l[  fasi  §  o. 

4  by  section  two.     The  presiding,  financial  and  recording  officers  and  a 

5  majority  of  its  other  officers  having  the  powers  of  directors  shall  forth- 

6  with  make,  sign  and  swear  to  a  certificate  setting  forth  such  addition 

7  to  or  change  of  purpose,  which,  having  been  submitted  to  the  commis- 

8  sioner  of  corporations  and  taxation  and  approved  by  him,  shall  there- 

9  upon  be  filed  and  recorded  in  the  office  of  the  state  secretary. 


2068 


CH.'\.RITABLE,   ETC.,   CORPORATIONS. 


[Ch.\p.  ISO. 


Change  of 
name. 
1915,  205. 


Section  11.  A  corporation  organized  under  general  or  special  laws 
for  any  of  the  purposes  specified  in  section  two,  if  unable  to  comply  with 
section  ten  of  chapter  one  hundred  and  fifty-five,  may  petition  the  com- 
missioner of  corporations  and  taxation  for  a  change  of  name.  The  pe- 
tition shall  contain  a  list  of  the  officers  and  stockliolders  or  members  of 
the  corporation,  so  far  as  they  are  known,  with  their  addresses;  shall 
state  why  the  said  section  cannot  be  complied  with  and  the  name  pro- 
posed to  be  adopted  by  the  corporation.  It  shall  be  signed  and  sworn  to  8 
by  the  president  or  one  member  of  the  board  of  directors.  The  commis-  9 
sioner  may  require  the  petitioner  to  give  him  information  as  to  what  10 
attempt,  if  any,  has  been  made  to  secure  the  approval  of  two  thirds  of  1 1 
the  stockholders  or  members,  or  of  such  proportion  thereof  as  the  by-  12 
laws  of  the  corporation  may  prescribe,  for  the  proposed  change  of  name.  13 
The  commissioner  may  also  require  any  other  information  which  may  14 
assist  in  determining  the  matter  before  him.  He  may  direct  the  pe-  15 
titioner  or  the  officers  of  the  corporation  to  give  any  further  notice  to  16 
the  members  thereof  of  the  proposed  change  of  name  and  to  report  to  17 
hira  the  result  of  such  notice.  If  the  commissioner  is  satisfied  that  the  18 
proposed  name  of  the  corporation  is  approved  by  such  members  or  stock-  19 
holders  thereof  as  have  expressed  an  opinion  in  relation  thereto,  or  of  20 
a  reasonable  proportion  thereof,  he  shall  endorse  his  approval  on  the  21 
petition,  and  thereupon  it  shall  be  filed  in  the  office  of  the  state  secretary,  22 
who  shall  direct  publication  thereof  and  grant  a  certificate  of  name  as  23 
provided  in  said  section.  ^  24 


Reports  to 
dep-artnient 
of  public 
welfare. 
1899,  2.59. 
1901,  179. 
R.  L,84,  §  14. 
1903,  402. 
1913,82. 
1919,  350.  §  87 


Section  12.     A  charitable  corporation  whose  personal  property  is  1 

exempt  from  taxation  shall  annually,  on  or  before  November  first,  make  2 

to  the  department  of  public  welfare  a  written  report  for  its  last  finan-  3 

cial  year,  showing  its  property,  its  receipts  and  expenditures,  the  whole  4 

number  and  the  average  number  of  its  beneficiaries  and  such  other  in-  5 

formation  as  the  department  requires.     If  any  corporation  subject  to  6 

this  section  fails  for  two  successive  years  to  file  said  report,  the  supreme  7 

judicial  court,  upon  application  by  the  department,  after  notice  and  8 

hearing,  may  decree  a  dissolution  of  the  corporation.  9 


Medical  cor- 
poration for- 
bidden to 
confer  degrees. 
1S83,  268. 
R.  L.  125,  §  10. 
218  Mass.  1G7. 


MEDICAL   corporation. 

Section  13.     A  corporation  organized  under  this  chapter  for  medical  1 

purposes  shall  not  confer  degrees,  or  issue  diplomas  or  certificates  con-  2 

ferring  or  purporting  to   confer  degrees,   unless  specially  authorized  3 

thereto  by  the  general  court.    An  officer,  agent  or  servant  of  such  cor-  4 

poration  or  any  other  person  who  confers  degrees,  or  signs,  issues  or  5 

authorizes  the  signing  or  issuing  of  any  diploma  or  certificate  purporting  6 

to  confer  any  degree  of  medicine  or  surgery,  in  violation  hereof,  shall  7 

be  punished  by  a  fine  of  not  less  than  five  hundred  nor  more  than  one  8 

thousand  dollars.  9 


Horse  breeding 

corporations 

may  hold 

exhibitions. 

1900, 409. 

K.  L.  125,  §  11. 


HORSE   breeding   CORPORATIONS. 

Section  14.     Corporations  formed  under  this  chapter  for  encouraging  1 

the  raising  of  choice  breeds  of  horses  may  establish  and  maintain  grounds  2 

suitable  for  exhibitions  and  trials  of  the  speed  or  strength  of  horses;  3 

may  arrange  for  and  advertise  such  exhibitions  and  trials  upon  such  4 

grounds,  may  collect  admission  fees  thereto  and  may  award  purses  or  5 


Ch.\P.    ISO.]  CHAKITABLE,   ETC.,   CORPORATIONS.  2069 

6  premiums  to  the  participants  therein,  if  such  purses  or  premiums  are 

7  raised  only  from  voluntary  subscriptions  to  the  funds  of  the  corporation, 

8  admission  fees  or  fees  for  entering  horses  in  such  exliibitions  or  trials. 

LABOR   OR  TRADE   ORGANIZATIONS. 

1  Section  15.     Corporations  may  be  formed  under  this  chapter  for  Labor  or  trade 

2  improving  the  condition  of  any  employees  in  any  one  or  more  trades  or  i8S8?T34!Ti. 

3  employments,  either  relative  to  their  employment  or  to  the  promotion  f  op; ]^%^  ^^■ 

4  of  education,  temperance,  morality  or  social  intercourse  among  them,  or  ^^■ 

5  for  paying  benefits  to  sick  or  unemployed  members,  or  to  persons  de- 

6  pendent  upon  deceased  members  or  otherwise. 

1  Section  16.     The  commissioner  of  corporations  and  taxation  shall  ^"b'J^atj^"^"^" 

2  not  endorse  his  approval  upon  the  certificate  of  organization  of  any  such  fg''5'*,?;'i'jP°''* 

3  corporation,  unless  satisfied  that  the  purposes  thereof  are  lawful,  that  isss.isi.  §2. 

4  its  by-laws  are  consistent  with  law  and  conform  to  the  requirements  of     '    '  "  ' 

5  the  two  following  sections. 

1  Section  17.     The  by-laws  shall  contain  clear  and  distinct  provisions  By-iaws. 

2  relative  to  the  election,  admission  and  expulsion  of  members;  the  titles,  §§3,'4.   ' 

3  duties,  powers  and  tenure  of  the  officers  of  the  corporation  and  their  ^-  ^-  ^^^'  ^  '^• 

4  election  and  removal;    the  number  of  members  required  for  a  quorum; 

5  the  call  for  special  meetings;    the  adoption,  amendment  and  repeal  of 

6  by-laws;    the  purposes  to  which  the  funds  of  the  corporation  may  be 

7  applied  and  for  which  assessments  may  be  laid  upon  the  members;  the 

8  conditions  upon  which  a  member  or  persons  dependent  upon  a  deceased 

9  member  shall  be  entitled  to  benefits,  if  any  are  to  be  given  by  the  cor- 

10  poration;    the  imposition  of  fines  and  forfeitures,  if  any;    the  deposit, 

11  investment  and  custody  of  the  funds  of  the  corporation;   the  periodical 

12  audit  of  the  accounts  of  the  treasurer  and  the  method  of  voting  on 

13  shares  of  stock,  if  any  are  issued  by  the  corporation.     A  by-law  shall 

14  not  be  repealed  or  amended,  or  an  additional  by-law  adopted,  unless 
1.5  notice  of  such  proposed  action  shall  have  been  given  at  a  previous  meet- 

16  ing;    and  such  repeal,  amendment  or  adoption  shall  not  take  effect 

17  until  it  has  been  approved  by  the  commissioner  of  corporations  and 

18  taxation  as  conformable  to  law. 

1  Section  18.     No  member  of  such  corporation  shall  be  expelled  by  vote  Rights  of 

2  of  less  than  a  majority  of  all  the  members  thereof,  nor  by  vote  of  less  Tsss,  134,  §  4. 

3  than  three  quarters  of  the  members  present  and  voting  upon  such  expul-  ^'  ^'  '""■  ^  ^^ 

4  sion.     Every  member  of  such  corporation  and  every  person  who  has  an 

5  interest  in  its  funds  shall  be  entitled  to  examine  its  books  and  records. 

1  Section  19.     No  fine  or  notice  of  intention  to  impose  a  fine  by  any  Fines  on 

,  ...  ,  .  ill,       members  of 

2  union  or  any  other  association,  incorporated  or  unincorporated,  or  by  unions. 

3  any  authorized  representative  thereof,  upon  any  member,  according  to  the  227  Mass!  3,S2. 

4  rules  to  which  such  member  has  agreed  to  conform,  shall  be  held  to  be 

5  unlawful  or  coercive  as  to  such  member  or  as  to  any  other  person ;  pro- 

6  vided,  that  such  fine  is  reasonable  in  amount  and  is  for  a  legal  purpose. 

medical  milk  commission. 

1  Section  20.     For    the    purpose    of    supervising    the    production   of  595^7'5o'6,*§°i: 

2  milk,  any  five  or  more  registered  physicians  may  form  a  corporation 


2070 


CHARITABLE,   ETC.,   CORPORATIONS. 


[Ch.\p.  180. 


Name. 

1911,  506,  §  2. 


under  this  chapter.     The  members  of  the  board  of  health  of  any  town  3 

where  such  corporation  is  formed  shall  be  ex  officiis  members  of  the  4 

corporation.  5 

Section  21.     The  name  of  any  such  corporation  shall  be  "Medical  1 

Milk   Commission   of                            ",   designating  the   name   of   the  2 

town  where  such  corporation  is  established,  and,  if  more  than  one  such  3 

corporation  shall  be  organized  in  any  town,  the  subsequent  corpora-  4 

tions  shall  use  the  name  designated  herein,  but  shall  indicate  in  such  5 

name  its  proper  sequence  in  incorporation  by  adding  thereto  the  words  6 

"Number  Two"  or  "Number  Three"  and  so  forth.  7 


Compensation 
to  members 
forbidden. 
1911,  506,  §  3. 


Contracts 
for  milk. 
1911,506,  §  4. 


Power  of 
department  of 
public  health. 
1911,. we,  §  5. 
1914,  792,  §  1. 


Penalty  for 
breach  of  five 
preceding 
sections. 
1911,506,  I  6. 


Section  22.     No  member  of  any  such  corporation  shall  receive  di-  1 

rectly  or  indirectly  therefrom,  or  from  any  dairymen  producing  milk  2 

under  agreement  w  ith  the  corporation,  any  salary  or  emolument  or  any  3 

compensation  of  any  kind  for  any  services  rendered  as  a  member  of  4 

such  corporation,  or  for  any  services  rendered  under  sections  twenty  to  5 

twenty-five,  inclusive.    Whoever  violates  this  section  shall  be  punished  6 

by  a  fine  of  one  hundred  dollars,  and  shall  be  removed  from  his  office  as  7 

a  member  of  said  corporation  and  thereafter  be  disqualified  from  be-  8 

coming  a  member  of  any  such  corporation.  9 

Section  23.     Every  such  corporation  may  enter  into  written  agree-  1 

ments  with  any  dairymen  for  the  production  of  milk  under  the  super-  2 

vision  of  such  corporation  and  prescribe  in  such  agreements  the  con-  3 

ditions  under  which  such  milk  shall  be  produced,  w'hich,  however,  shall  4 

not  fall  below  the  standards  of  purity  and  cjuality  for  certified  milk  as  5 

fixed  by  the  American  Association  of  Medical  Milk  Commissions  and  6 

the  standards  for  milk  fixed  by  law.  7 

Section  24.    The  working  methods  of  any  such  corporation  and  the  1 

dairies  in  which  milk  is  produced  under  contract  with  it  shall  at  all  times  2 

be  subject  to  investigation  by  the  department  of  public  health.  3 

1919,  350,  I  90. 

Section  25.  Whoever  sells  or  exchanges,  or  offers  or  exposes  for 
sale  or  exchange  as  and  for  certified  milk  any  milk  not  conforming  to  the 
regulations  prescribed  by  and  bearing  the  certification  of  a  corporation 
organized  under  sections  twenty  to  twenty-five,  inclusive,  shall  be  pun- 
ished bv  a  fine  of  not  more  than  one  hundred  dollars. 


Change  of 
location  of 
certain  associ- 
ations. 
1907,  337, 
J§  1-3. 


miscellaneous  provisions. 

Section  26.     No  corporation  organized  under  general  laws  for  the  1 

purpose  of  fostering,  encouraging  or   engaging  in   athletic  exercises  or  2 

for  the  establishment  and  maintenance  of  places  for  reading  rooms,  3 

libraries  or  social  meetings  shall  change  its  location  from  the  town  where  4 

it  is  located  to  another  town  within  the  commonwealth  until  written  5 

consent  therefor  has  been  obtained  from  the  police  commissioner  in  Bos-  6 

ton,  the  aldermen  in  any  other  city  or  the  selectmen  in  the  town  where  7 

the  corporation  proposes  to  acquire  a  new  location.  8 

Such  consent  shall  not  take  effect  until  a  copy  thereof,  duly  attested  9 

by  the  clerk  or  secretary  of  the  board  or  officer  consenting  thereto,  has  10 

been  filed  in  the  office  of  the  state  secretary.  11 

A  change  of  location  by  a  corporation  contrary  to  this  section  shall  be  12 

sufficient  cause  for  the  revocation  of  its  charter  by  the  state  secretary.  13 


Chap.  181.] 


FOREIGN   CORPORATIONS. 


2071 


1906,  291. 


1  Section  27.     If  any  liquor,  casks  or  other  vessels  or  implements  of  J"f,^fg 'j.'J"°'' 

2  sale  and  furniture  used  or  kept  and  provided  to  be  used  in  the  illegal  mj»jjfs  charter 

3  keeping  or  sale  of  liquor,  or  implements  of  gaming,  are  seized  on  the  prem-  1902',  524. 

4  ises  occupied  by  any  club  or  organization  described  in  section  two,  and 

5  are  forfeited  under  chapter  one  hundred  and  thirty-eight,  the  selectmen, 

6  or  the  aldermen,  in  the  place  where  such  club  or  organization  is  situated, 

7  except  Boston,  and  in  Boston  the  police  commissioner,  shall  immediately 

8  give  notice  to  the  state  secretary,  who,  upon  receipt  thereof,  shall  declare 

9  the  charter  of  guch  club  or  organization  void,  and  shall  publish  a  notice 

10  in  at  least  one  newspaper  published  in  the  county  where  such  club  or 

11  organization  is  located  that  such  incorporation  is  void. 


1  Section  28.     If  any  person  is  convicted  of  illegally  engaging  in,  giving  illegal  boxing 

2  or  promoting  a  public  or  private  boxing  match  or  sparring  exhibition,  Siarur"™!." 

3  the  contestants  in  which  have  received  or  have  been  promised  any  pe-  l9?9;3|o; 

4  cuniary  reward,  remuneration  or  consideration  whatsoever,  directly  or  ^  1°"- 

5  indirectly,  under  the  auspices  of  or  on  the  premises  occupied  by  any  club 

6  or  organization  described  in  section  two,  the  commissioner  of  public 

7  safety,  the  selectmen  or  the  aldermen  in  the  town  where  such  club 

8  or  organization  is  situated,  except  in  Boston,  and  in  Boston  the  police 

9  commissioner,  shall  immediately  give  notice  to  the  state  secretary,  who, 

10  upon  receipt  thereof,  shall  declare  the  charter  of  such  club  or  organiza- 

11  tion  void,  and  shall  publish  a  notice  in  at  least  one  newspaper  published 

12  in  the  county  where  the  club  or  organization  is  situated  that  such  in- 

13  corporation  is  void. 

REFERENCE. 
Railroad,  street  railway  and  steamboat  relief  corporations,  Chap.  1.59,  §§  S6-S8. 


CHAPTER    181. 


FOREIGN  CORPORATIONS. 


Sect. 

1.  Definitions. 

2.  Foreign  corporations  forbidden  to  do 

business    which    domestic    corpora- 
tions may  not  do. 

3.  Commissioner  to  be  appointed  attorney 

for  service  of  process. 

4.  Notice  of  service  of  process  to  be  given 

by  commissioner. 

5.  Copy  of  charter,  etc.,  to  be  filed. 

6.  Commissioner,  etc.,  shall  refuse  to  re- 

ceive papers  for  filing  from  a  foreign 
corporation  doing  an  illegal  business. 

7.  Names  of  certain  foreign  corporations 

regulated. 

8.  Suits  against  foreign  corporations. 

9.  Foreign    corporations    may    hold    real 

estate. 

10.  Issue  of  stock  based  on  property,  etc., 

of  domestic  corporations  regulated. 

11.  Certificate  of  increase  or  reduction  of 

capital  stock. 


Sect. 

12.  Annual  certificate  of  condition. 

13.  Approval  of  certificate. 

14.  Liability  of  officers  and  stockholders  of 

certain  foreign  corporations. 

Liability  of  officers  and  stockliolders 
of  certain  foreign  corporations  as  to 
issuing  stock  for  property. 

Enforcement  of  liability. 

17.  Liability  of  officers  of  foreign  business 

corporations. 

18.  Notice   of   change  of   date   of   annual 

meeting  to  be  filed. 

19.  The  supreme  judicial  court  may  restrain 

corporations  from  doing  business  not 
authorized  by  their  charter,  etc. 

20.  Penalty  for  false  reports. 

21.  Penalties  for  neglect  to  file  certificate 

of  condition. 

22.  Recovery  of  penalties  and  forfeitures. 

23.  Filing  fees. 


15. 


16. 


2072 


FOREIGN   CORPORATIONS. 


[Chap.  181. 


Definitions. 
R  L.  126,  §  1. 
1903.437,  §  56. 
1914,742, 
§172. 

1919,333,  §  16; 
350,  §  53. 
1920,  2. 
168  Mass.  564. 
196  Mass.  603. 


Section  1.  The  following  words  as  used  in  this  chapter  shall,  except 
when  otherwise  specifically  prescribed,  have  the  following  meanings : 

"Commissioner",  the  commissioner  of  corporations  and  taxation. 

"Foreign  corporation",  a  corporation,  association  or  organization,  ex- 
cept an  insm-ance  company,  which  has  been  established,  organized  or 
chartered  under  laws  other  than  those  of  the  commonwealth. 


Foreign  cor- 

E orations  for- 
idden  to  do 
business  which 
domestic  cor- 
porations may 
not  do. 


Section  2.  A  foreign  corporation,  including  an  insurance  company, 
shall  not  engage  or  continue  in  any  kind  of  business  in  this  common- 
wealth the  transaction  of  which  by  domestic  corporations  is  not  per- 
mitted by  the  laws  of  this  commonwealth.        is94,  ssi.         r.  l.  i26,  §  2. 


1903,437,  §57. 
1919,  333,  §  16. 


1920.  2. 

173  Mass.  252: 


1  Op.  A.  G.  304. 

2  0p.  A.  G.  31,  55,401. 


Commissioner 
to  he  appointed 
attorney  for 
service  of 
process. 
1871,371,  §  1. 
P.  S.  73,  §  3. 
1882,  106,  §  1. 
1884,  330,  §  1. 
1895,  311,  §  1. 
1901,  23S. 
R.  L.  126,  §  4. 
1903,  437, 
§§  3,  58. 
1905,  242. 
1909,  490, 
III,  §  2. 
1913,  792,  §  1. 

1918,  103; 
257,  §  345. 

1919,  5:  333, 

§  10;  350,  §  53. 

1920,  2. 

12  Gray,  201. 
10  Allen,  231. 
14  Allen,  330. 
105  Mass.  141. 
132  Mass.  432. 
137  Mass.  252. 
139  Mass.  294. 

149  Mass.  24. 

150  Mass.  550. 
167  Mass.  28. 
172  Mass.  154. 
175  Mass.  400. 
180  Mass.  270. 
188  Mass.  239. 


Section  3.  Every  foreign  corporation,  which  has  a  usual  place  of  1 
business  in  this  commonwealth,  or  which  is  engaged  therein,  perma-  2 
nently  or  temporarily,  and  with  or  without  a  usual  place  of  business  3 
therein,  in  the  construction,  erection,  alteration  or  repair  of  a  building,  4 
bridge,  railroad,  railway  or  structure  of  any  kind,  shall,  before  doing  5 
business  in  this  commonwealth,  in  writing  appoint  the  commissioner  and  6 
his  successor  in  office  to  be  its  true  and  lawful  attorney  upon  whom  all  7 
lawful  processes  in  any  action  or  proceeding  against  it  may  be  served,  8 
and  in  such  WTiting  shall  agree  that  any  lawful  process  against  it  which  is  9 
served  on  said  attorney  shall  be  of  the  same  legal  force  and  validity  as  if  10 
served  on  the  corporation,  and  that  the  authority  shall  continue  in  force  1 1 
so  long  as  any  liability  remains  outstanding  against  the  corporation  in  12 
this  commonwealth.  The  power  of  attorney  and  a  copy  of  the  vote  13 
authorizing  its  execution,  duly  certified  and  authenticated,  shall  be  filed  14 
in  the  office  of  the  commissioner,  and  copies  certified  by  him  shall  be  15 
sufficient  evidence  thereof.  Service  of  such  process  shall  be  made  by  16 
leaving  a  copy  of  the  process  with  a  fee  of  two  dollars  in  the  hands  of  the  17 
commissioner,  or  of  his  deputy  or  second  deputy  when  acting  under  sec-  18 
tion  six  of  chapter  fourteen,  or  in  the  office  of  the  commissioner,  and  19 
such  service  shall  be  sufficient  service  upon  the  corporation.  20 


195  Mass.  432. 

196  Mass.  458. 
198  Mass.  212. 
201  Mass.  557. 
204  Mass.  327. 


214  Mass.  363. 

215  Mass.  204. 

216  Mass.  171. 
94  U.  S.  535. 


231  U.  S.  68. 

lOp.  A.  G.  181,  339. 

2  Op.  A.  G.  221,  440. 

3  0p.  A.  G.  187,  255. 


Notice  of 
service  of 
process  to  be 
given  by 
commissioner. 
1884,  330,  §  2. 
R.  L.  126,  §  5. 
1903,  437,  §  59. 
1919,333,  §  16. 
1920,  2. 
215  Mass.  204. 


Section  4.  When  legal  process  against  any  such  corporation  is 
served  upon  the  commissioner,  he  shall  immediately  give  notice  to  the 
corporation  of  such  service  by  mail,  postage  prepaid,  directed,  in  the 
case  of  a  corporation  established  in  a  foreign  country,  to  the  resident 
manager,  if  any,  in  the  United  States;  and  shall,  within  two  days  after 
such  service,  forward  in  the  same  manner  a  copy  of  the  process  served 
upon  him  to  such  corporation  or  manager,  or  to  any  other  person  desig- 
nated by  the  corporation  by  a  writing  filed  in  the  office  of  the  commis- 
sioner. The  fee  of  two  dollars  paid  by  the  plaintiff  to  the  commissioner 
at  the  time  of  the  service  shall  be  taxed  in  his  costs,  if  he  prevails  in  the  10 
suit.  The  commissioner  shall  keep  a  record  of  all  such  processes,  which  1 1 
shall  show  the  day  and  hour  of  service.  12 


diTrtofetc,  Section  5.     Every   foreign   corporation  of  the  classes  described  in     1 

1884°  33o''  '      section  three,  before  transacting  business  in  this  commonwealth,  shall,     2 
§§  3,'4.   ■         upon  payment  of  the  fee  provided  by  section  twenty-three,  file  with  the    3 


Chap.  181.]  foreign  corporations.  2073 

4  commissioner  a  copy  of  its  charter,  articles  or  certificate  of  incorporation,  is95, 157. 

5  certified  under  the  seal  of  the  state  or  country  where  such  corporation  is  r.  l!  120,'  §  6. 

6  incorporated  by  the  secretary  of  state  thereof  or  by  the  officer  having  }9?i;ni'.^'^°' 

7  charge  of  the  original  record  therein,  a  true  copy  of  its  by-laws,  and  j^^-J'  l^^-  §  ^^■ 

8  a  certificate  in  such  form  as  the  commissioner  requires,  setting  forth:   (a)  ]H  J1'"'^??S- 

9  the  name  of  the  corporation;    (0)  the  location  01  its  principal  otnce;  (c)  157  Mass.  1. 

10  the  names  and  addresses  of  its  president,  treasurer,  clerk  or  secretary  175  Mass!  406. 

11  and  of  the  members  of  its  board  of  directors;   (d)  the  date  of  its  annual  i9SMas3!432; 

12  meeting  for  the  election  of  officers;    (e)  the  amount  of  its  capital  stock,  214  MaSsia! 

13  authorized  and  issued,  the  number  and  par  value  of  its  shares,  the  amount  5JI  ^^aS  i7l 

14  paid  in  thereon  to  its  treasurer,  and,  if  any  part  of  such  payment  has  ^^p-  ■*••  g.  31, 
1.5  been  made  otherwise  than  in  money,  the  details  of  such  payment,  so 

16  far  as  practicable,  in  accordance  with  section  ten  of  chapter  one  hun- 

17  dred  and  fifty-six.    Said  certificate  shall  be  subscribed  and  sworn  to  by 

18  its  president,  treasurer  and  a  majority  of  its  directors  or  officers  having 

19  the  powers  usually  exercised  by  directors.     The  officers  and  directors  of 

20  such  corporation  shall  be  subject  to  the  same  penalties  and  liabilities  for 

21  false  and  fraudulent  statements  and  returns  as  officers  and  directors  of 

22  a  domestic  corporation  subject  to  said  chapter.     Every  officer  of  such 

23  a  corporation  which  fails  to  comply  with  the  requirements  of  this  section 

24  and  of  sections  three  and  twelve,  who  authorizes  or  transacts,  and  every 

25  agent  thereof  who  transacts  business  in  behalf  of  such  corporation  in 

26  this  commonwealth,  shall,  for  such  failure,  be  punished  by  a  fine  of  not 

27  more  than  five  hundred  dollars,  and  shall  also  be  liable,  jointly  and 

28  severally,  in  contract,  without  prior  proceedings  against  the  corporation, 

29  for  all  debts  and  contracts  of  the  corporation,  except  such  as  relate  to 

30  interstate  commerce,  contracted  or  entered  into  within  this  common- 

31  wealth  or  for  the  purpose  of  being  performed  therein,  so  long  as  such 

32  failure  continues.     Such  failure  shall  not  affect  the  validity  of  any  con- 

33  tract  with  such  corporation,  but  no  action  shall  be  maintained  or  rc- 

34  covery  had  in  any  of  the  courts  of  this  commonwealth  by  any  such  foreign 

35  corporation  so  long  as  it  fails  to  comply  with  said  sections. 

1  Section  6.    The  commissioner,  the  commissioner  of  insurance  and  ^t°"^|ii°°^''" 

2  any  other  officer  of  this  commonwealth  whose  duty  it  is  to  examme  and  refuse  to  re- 

,'  .  ,,  p.  •  'ii*  •  ceive  papers  for 

3  determine  whether  a  foreign  corporation,  mcluding  an   insurance   com-  filing  from  a 

4  pany,  is  entitled  to  file  any  papers  under  section  three  or  five,  section  portion "oing 

5  forty-one  of  chapter  one  hundred  and  seventy-six,  or  chapter  one  hun-  bSs'ineS. 

6  dred  and  seventy-five  or  one  hundred  and  seventy-seven,  shall  refuse  to  ^^l'  ffei  §  7. 

7  accept  or  file  the  charter,  financial  statement  or  other  papers  of,  or  ac-  \^°l- 13^'  |  ^J- 

8  cept  appointment  as  attorney  for  service  for,   any  such  corporation  1920!  2. 

9  which  does  a  business  in  this  commonwealth  the  transaction  of  which  339. 

10  by  domestic  corporations  is  not  then  permitted   by  the  laws  of  this 

1 1  commonwealth. 

1  Section  7.     A  foreign  corporation  which  carries  on  a  banking,  mort-  J^f^fo^dgn'^'^' 

2  gage,  loan  and  investment  or  trust  business  shall  indicate  in  letters  corporations 

3  equally  conspicuous  with  its  name,  upon  all  signs,  advertisements,  cir-  issg,  452', 

4  culars,  letterheads  and  other  documents  which  contain  its  name,  the  isod,  329. 

5  state  or  country  where  it  is  chartered  or  incorporated.    No  such  corpora-  fia^/a'ss'.  27*1. 

6  tion  and  no  person  who  is  engaged  in  such  business  shall  carry  it  on  in  or 

7  under  a  name  which,  previous  to  such  use,  was  in  lawful  use  by  a  cor- 

8  poration  established  under  the  laws  of  this  commonwealth  and  carrying 


2074 


FOREIGN  CORPORATIONS. 


[Chap.  ISl. 


on  the  same  or  a  similar  business  or  in  or  under  a  name  so  similar  thereto  9 

as  to  be  likely  to  be  mistaken  for  it.    The  supreme  judicial  or  superior  10 

coiu-t  shall  have  jm-isdiction  in  equity  to  enforce  the  foregoing  p^o^-isions  11 

of  this  section.    "Whoever  violates  any  provision  of  this  section  shall  be  12 

punished  by  a  fine  of  not  more  than  one  thousand  dollars.  13 


Suits  against 
foreign  cor- 
porations. 
1839,  158. 
G.  S.  68.  §  15. 
P.  S.  105,  §  28. 
R.  L.  126,  §  9. 
1903.  437,  §  62. 
1919,333,  §  16. 
1920,  2. 
10  Mass.  91. 
16  Pick.  274. 
3  Met.  420. 


Section  8.  Foreign  corporations  having  property  in  this  common- 
wealth shall  be  liable  to  be  sued  and  to  have  theu-  property  attached  in 
the  same  manner  and  to  the  same  extent  as  mdi\-iduals  -who  are  residents 
of  other  states  and  who  have  property  in  this  commonwealth.  The  serv- 
ice of  the  writ  shall  be  made  in  the  manner  provided  in  chapters  two 
hundred  and  twenty-three  and  two  hundred  and  twenty-seven,  with 
such  further  service  as  the  court  to  which  the  ■^Tit  is  returnable  orders. 


6  Met.  391. 
10  Gray,  164. 


15  Gray,  491. 
150  Mass.  550. 


215  Mass.  341. 
220  Mass.  285. 


Foreign 
corporations 
may  hold 
real  estate. 
1888,321. 
1895,  387. 


Section  9.  Foreign  corporations  which  have  complied  with  sec-  1 
tions  tliree  and  five  may  purchase  and  hold  such  real  estate  in  tliis  com-  2 
monwealth  as  may  be  necessary  for  conducting  their  business.  3 


R.  L.  126,  §  10. 
1903,  437,  §  63. 


1919.  333,  §  16. 

1920,  2. 


Issue  of 
stock  based 
on  property, 
etc.,  of  domes- 
tic corpora- 
tions regulated. 
1894,476. 
R.  L.  126,  §11. 
1903,  437,  §  64. 
1906,  463.  Ill, 
§§  58.  158. 
1914,  742, 
§§  172,  199. 

1919,  333,  §16. 

1920,  2. 


Section  10.  If  a  foreign  corporation  which  owns  or  controls  a  ma-  1 
jority  of  the  capital  stock  of  a  domestic  street  railway,  gas  or  electric  2 
company  issues  stock,  bonds  or  other  evidences  of  indebtedness  based  3 
upon  or  secured  by  the  property,  franchise  or  stock  of  such  domestic  4 
company,  unless  such  issue  is  authorized  by  the  law  of  this  common-  5 
wealth,  the  supreme  judicial  court  shall  have  jurisdiction  in  equity  to  6 
dissolve  such  domestic  company.  If  it  appears  to  the  attorney  general  7 
that  such  issue  has  been  made,  he  shall  institute  proceedings  for  such  8 
dissolution  and  for  the  proper  disposition  of  the  assets  of  such  company.  9 
This  section  shall  not  affect  the  right  of  foreign  corporations,  their  officers  10 
or  agents  to  issue  stock  and  bonds  in  fulfilment  of  contracts  existing  on  11 
July  fourteenth,  eighteen  hundred  and  ninety-four.  12 


Certificate  of 
increase  or  re- 
duction of 
capital  stock. 
1891,341, 
HI,  3,  4. 
1895,311,  §  1. 
R.  L.  126.  §  12. 
1903,  437,  §  65. 
1919,333,1  16. 
1920,  2. 
1  Op.  A.  G.  583. 


Section  11.     All   foreign   corporations   of   the   classes  described   in  1 

section  three,  and  foreign  corporations  engaged  in  the  business  of  sell-  2 

ing  or  negotiating  bonds,  mortgages,  notes  or  other  choses  in  action  shall,  3 

within  thirty  days  after  the  payment  into  its  treasury  for  an  increase  of  4 

capital  stock,  upon  paying  the  fee  provided  in  section  twenty-tliree,  file  5 

in  the  office  of  the  state  secretary  a  certificate  of  the  amount  of  such  in-  6 

crease  and  the  fact  of  such  payment,  signed  and  sworn  to  by  its  presi-  7 

dent,  treasurer  and  a  majority  of  its  directors  or  officers  having  the  8 

powers  usually  exercised  by  directors.    ^Yithin  thirty  days  after  the  vote  9 

of  such  corporation  authorizing  a  reduction  of  its  capital  stock,  a  copy  10 

of  such  vote,  signed  and  sworn  to  by  the  clerk  of  the  corporation,  shall,  11 

upon  paying  the  fee  provided  in  section  twenty-tliree,  be  filed  in  the  12 

office  of  the  state  secretary.  13 


,\nnual 
certificate 
of  condition. 
1891,341,  §  1. 
1895,311,  §  1. 
R.  L.  126,  §  13. 
1903,  437,  §  66. 
1905,  233. 
1909,  490, 
III,  §54. 
1915,  167. 


Section  12.     Every  foreign  corporation  shall  annually,  witliin  thirty  1 

days  after  the  date  fixed  for  its  annual  meeting,  or  witliin  tliirty  days  2 

after  the  final  adjournment  thereof,  but  not  more  than  three  months  3 

after  the  date  so  fixed  for  said  meeting,  prepare  and  file  in  the  office  of  4 

the  state  secretary,  upon  payment  of  the  fee  provitled  in  section  t\\cnty-  5 

three,  a  certificate  signed  and  sworn  to  by  its  president,  treasurer,  and  by  6 


Chap.  181.]  '  foreign  corpor.\tions.  2075 

7  a  majority  of  its  board  of  directors,  showing  the  amount  of  its  authorized  ll\f  |g- 

8  capital  stock,  and  its  assets  and  liabilities  as  of  a  date  not  more  than  JU}|'  J||. 

9  ninety  days  prior  to  said  annual  meeting,  in  such  form  as  is  required  of  355, '§§28, 29. 

10  domestic  business  corporations  under  section  forty-seven  of  chapter  one  iss  Mass!  239! 

11  hundred  and  fifty-six,  and  the  changes,  if  any,  in  the  other  particulars  232  Mass!  22. ' 

12  included  in  the  certificate  required  by  section  five  of  this  chapter,  made  sSpiA.'afw.' 

13  since  the  filing  of  said  certificate  or  of  the  last  annual  report. 

1  Section  13.     A  certificate  required  to  be  filed  imder  the  preceding  Apr.rovai  of 

2  section  shall  be  accompanied  by  a  written  statement  on  oath  by  an  isgl.sif.S  5. 

3  auditor  as  provided  in  section  forty-nine  of  chapter  one  hundred  and  k'l.' 120!  §  u. 

4  fifty-six,  except  that  such  auditor  shall  in  all  cases  be  chosen  by  the  Jgol;  300  1 2!' 

5  board  of  directors.     Before  the  certificate  is  filed  as  required  by  the  J??8;t?0' 

•  •         I      11    1  1-1  •      •  1  1      11   III.  §  65. 

6  precedmg  section  it  shall  be  submitted  to  the  commissioner,  who  shall  isa  Mass.  530. 

7  endorse  his  approval  thereon  if  he  finds  that  it  complies  with  the  pre- 

8  ceding  section. 

1  Section  14.     The  officers  and  members  or  stockholders  of  all  foreign  Liability  of 

2  corporations  which  have  a  usual  place  of  business  in  this  commonwealth,  stockifoiders  of 

3  except  those  mentioned  in  section  seventeen,  and  except  such  as  had  corporatroM^" 

4  such  place  of  business  on  IVIay  twelfth,  eighteen  hundred  and  ninety-six,  ^^^-  J|i'  |  ^^ 

5  shall  be  jointly  and  severally  liable  for  its  debts  and  contracts  on  the  195  Mass'.  46i. 

6  same  conditions  and  in  the  same  manner  as  is  provided  for  domestic 

7  corporations  by  sections  forty-four  to  fifty-four,  inclusive,  of  chapter 

8  one  hundred  and  fifty-eight,  except  the  fourth  clause  of  section  forty-four. 

1  Section  15.     If  the  capital  stock  of  a  foreign  corporation  subject  to  Liability  of 

2  the  preceding  section  has  been  paid  in  by  a  conveyance  to  the  corpora-  stockifofders  of 

3  tion  of  property,  real  or  personal,  at  an  unfair  valuation,  the  officers,  corporationsTs 

4  members  or  stockliolders  who  participate  in  such  conveyance  or  in  the  for'pro'pfrty"'^'' 

5  taking  of  such  property  at  such  unfair  valuation,  or  who  have  purchased  \^^f  ^91,  §  2. 

6  or  received  shares  with  knowledge  of  said  fact,  shall  be  jointly  and  sever-  k-  l'  126,  §  is. 

7  ally  liable  for  its  debts  or  contracts.  190  Mass.  as. 

1  Section  16.     The  extent,  conditions  and  manner  of  enforcing  the  Enforcement 

2  liability  imposed  by  either  of  the  two  preceding  sections  shall  be  the  iso'e^'sgif' 

3  same  as  is  provided  by  sections  forty-four  to  fifty-four,  inclusive,  of  chap-  HgV,  423 

4  ter  one  hundred  and  fifty-eight,  except  the  fourth  clause  of  section  forty-  fgo^j/^^'  35^' 

5  four.     No  officer,  member  or  stockholder  shall   be  liable  under  any 

6  pro^'ision  of  the  two  preceding  sections  for  any  bonded  or  mortgage 

7  debt  of  a  foreign  corporation. 

1  Section  17.     The  officers  of  foreign  corporations  organized  for  the  Liability  of 

2  purposes  for  which  domestic  corporations  may  be  organized  under  sec-  f^eignbLi- 

3  tion  six  of  chapter  one  hundred  and  fifty-six,  and  coming  within  the  Ss''"'^"''" 

4  classes  described  in  section  three,  shall  be  jointly  and  severally  liable  jj^^^'  126  I  li 

5  for  all  the  debts  and  contracts  of  the  corporation  contracted  or  entered  isq3,437,'§  70. 
G  into  while  they  are  officers  thereof,  if  any  statement  or  report  which  is 

7  required  by  this  chapter  is  made  by  them  which  is  false  in  any  material 

8  representation  and  w'hich  they  know  to  be  false;   but  only  the  officers 

9  who  sign  such  statement  or  report  shall  be  so  liable.     Such  liability  shall 

10  be  enforced  upon  the  conditions  and  in  the  manner  prescribed  by  sec- 

11  tions  thirty-eight  and  thirty-nine  of  chapter  one  hundred  and  fifty-six. 


2076 


FOREIGN  CORPORATIONS. 


[CiLiP.    181. 


Notice  of 
change  of  date 
of  annual 
meeting  to 
be  filed. 
1905,  222. 

1918,  257, 
5§  356,  357. 

1919,  5, 

1920,  2. 


Section  18.     Whenever  any  change  i.s  made  altering  the  date  fixed  1 

in  the  by-laws  for  the  annual  meeting  of  a  foreign  corporation  organized  2 

for  the  purposes  for  which  domestic  corporations  may  be  organized  under  .3 

section  six  of  chapter  one  hundred  and  fifty-six,  the  corporation  shall  4 

forthwith  file  in  the  office  of  the  commissioner  a  certificate  of  such  change  5 

signed  and  sworn  to  by  the  clerk  of  the  corporation.     Any  corporation  G 

which  omits  to  make  and  file  a  certificate  as  aforesaid  within  thirty  7 

days  after  such  a  change  has  been  made  shall  forfeit  not  more  than  one  8 

hundred  dollars,  to  be  recovered  in  the  manner  prescribed  by  section  9 

twenty-two.  10 


The  supreme 
judicial  court 
may  restrain 
corporations 
from  doing 
business  not 
autfiorized  by 
their  charter, 
etc. 


Section  19.  Upon  an  information  in  equity  in  the  name  of  the 
attorney  general,  at  the  relation  of  the  commissioner,  the  supreme  judicial 
court  may  restrain  any  foreign  corporation  from  assuming  or  exercising 
any  corporate  rights,  privileges  or  franchises  in  this  commonwealth 
until  sections  three  and  five  have  been  complied  with. 


1906,  372. 
196  Mass.  458. 


197  Mass.  194. 

198  Mass.  413. 


201  Mass.  370. 
220  Mass.  536. 


Penalty  for 
false  reports. 
1914,  661, 
§§1,2. 


Section  20.     Foreign  corporations  shall  be  subject  to  sections  forty-     1 
eight  and  forty-nine  of  chapter  one  hundred  and  fifty-five.  2 


Penalties  for 
neglect  to  file 
certificate 
of  condition. 
1891,341,  §  2. 
1894,  541, 
§§  1-3. 
R.  L.  126, 
§§  15,  16. 
1903,  437, 
§§  68,  69. 
1906,  346,  §  2. 
1909,  490, 
III,  §  58. 
196  Mass.  458. 
231  U.  S.  78. 


Section  21.  If  a  foreign  corporation  omits  to  file  a  certificate  as  1 
required  by  section  twelve,  the  commissioner  shall  give  notice  by  mail,  2 
postage  prepaid,  to  the  corporation  of  its  default,  directed,  in  the  case  3 
of  a  corporation  established  in  a  foreign  country,  to  the  resident  manager,  4 
if  any,  in  the  United  States,  or  to  any  other  person  designated  by  the  5 
corporation  by  a  writing  filed  in  the  office  of  the  commissioner.  The  6 
notice  shall  contain  a  copy  of  this  section  and  sections  twelve  and  thir-  7 
teen.  If  such  foreign  corporation  fails  to  file  such  certificate  ^^•ithin  8 
thirty  days  after  such  notice  of  default  has  been  given  or  mailed,  it  9 
shall  forfeit  to  the  commonwealth  not  less  than  five  nor  more  than  10 
ten  dollars  for  each  day  for  fifteen  days  after  the  expiration  of  the  said  11 
thirty  days,  and  not  less  than  ten  nor  more  than  two  hundred  dollars  for  12 
each  day  thereafter  during  which  such  default  continues,  or  any  other  13 
sum,  not  greater  than  the  maximum  penalty  of  forfeiture,  which  the  14 
court  may  deem  just  and  equitable,  which  shall  be  recovered  as  pro-  1.5 
vided  in  the  following  section.  16 


Recovery  of 
penalties  and 
forfeitures. 
1891,  341,  §  2. 
1894,  541, 
§§  1-3. 

n.h.  126,515. 
1903,437,150. 
1909,  490, 
III,  §  58. 


Section  22.     Penalties  and  forfeitures  incurred  by  a  foreign  corpora-  1 

tion  wMch  omits  to  file  a  certificate  required  by  section  five  or  twelve  2 

may  be  recovered  in  an  action  brought  in  Suffolk  county  in  the  name  3 

of  the  commonwealth  or  they  may  be  recovered  by  an  information  in  4 

equity  in  the  name  of  the  attorney  general  at  the  relation  of  the  com-  5 

missioner  brought  in  the  supreme  judicial  court  in  Suffolk  county.  6 

Upon  such  information,  the  court  may  issue  an  injunction  restraining  7 

the  further  prosecution  of  the  business  of  the  corporation  until  such  8 

penalties  and  forfeitures  with  interest  and  costs  have  been  paid  and  until  9 

the  certificates  required  by  said  sections  have  been  filed.  10 


Filing  fees. 
18S2,  106, 
§§3,5. 
18S4,  330,  §  3. 


Section  23.     Every  foreign  corporation  shall  pay  for  filing  a  copy  of     1 
its  charter,  by-laws  and   the  certificate  required   by  section  five,  fifty     2 


Chap.  182.] 


VOLUNTARY  ASSOCIATIONS. 


2077 


3  dollars  to  the  state  treasurer,  and  for  filing  all  other  certificates  and  ligsJlT.'^ "" 

4  statements,   including  the  annual  certificate  of   condition  required  by  ""l.' 12°;  §  20. 

5  section  twelve,  ten  dollars  to  the  state  secretary. 

1903,437,  §  91.       1919,  333,  §  16.       1920,  2;  59S,  §  4.       232  Mass.  22. 

REFERENCES. 

Service  of  trustee  process.  Chap.  246,  §  6. 
Taxation,  Chap.  63,  §§  39^-43. 


CHAPTER     182. 

VOLUNTARY  ASSOCIATIONS. 


Sect. 

1.  Definitions. 

2.  Copy  of  declaration,  etc.,  to  be  filed 

with  commissioner  and  town  clerk. 

3.  Copy  of  declaration,  etc.,  of  association 

owning  gas  or  electric  stock  to  be 
filed  with  department.     Penalty. 

4.  Annual  statements.     Penalty. 

5.  State  secretary  to  print  certain  state- 

ments, etc.,  as  public  documents. 
0.  Suits  against  associations. 


Sect. 

7.  Examination  by  department. 

S.  Examination  of  corporation,  etc.,  under 
same  management  as  public  service 
corporation. 

9.  Penalty  for  refusing  to  submit  to  exam- 
ination, etc. 

10.  Enforcement  of  orders  of  department, 

etc. 

11.  Shares  owned  by  an  association  not  to 

be  considered  in  fixing  rates,  etc. 


1  Section  1.     The  following  words,  as  used  in  this  chapter,  shall  have  Definitions. 

.,     ,,        J,    ,,         .  .  "  1909,441,  §  1. 

2  the  loUowing  meanings:  1914,471. 

3  "Association",  a  voluntary  association  under  a  written  instrument  fnf^^"' 

4  or  declaration  of  trust,  the  beneficial  interest  under  which  is  divided  into 

5  transferable  certificates  of  participation  or  shares. 

6  "Commissioner",  the  commissioner  of  corporations  and  taxation. 

7  "Department",  the  department  of  public  utilities. 

1  Section  2.     The  trustees  of  an  association  shall  file  a  copy  of  the  Copy  of 

2  written  instrument  or  declaration  of  trust  creating  it  with  the  commis-  erc.'^tobe'fiied 

3  sioner  and  ^^•ith  the  clerk  of  every  town  where  such  association  has  a  ^'on^lr  and"* 

4  usual  place  of  business.     Such  trustees  shall  also,  within  thirty  days  after  '1909. 44[|'§  1. 

5  the  adoption  of  any  amendment  thereof,  file  a  copy  of  said  amendment  i9".  471. 

6  with  said  commissioner  and  said  clerk. 

1  Section  3.     The  trustees  of  an  association  who  own  or  control  a  Copy  of 

2  majority  of  the  capital  stock  of  a  gas  or  electric  company  shall  also  file  a  etc  TS  Lso- 

3  copy  of  the  written  instrument  or  declaration  of  trust  creating  it  with  the  gag'oTeKric^ 

4  department  and  shall  also  within  thirty  days  after  the  adoption  of  any  A^edVith"^ 

5  amendment  of  such  instrument  or  declaration  file  a  copy  thereof  with  f,%^^Jy  ™'- 

6  the  department.    Every  such  trustee  who  fails  to  comply  with  the  fore-  lais.  454. 

7  going  requirements  shall  be  punished  by  a  fine  of  not  more  than  five  §  us. 

8  hundred  dollars  or  by  imprisonment  for  three  months.         i9i5, 20,  §  2. 


1  Section  4.     The  trustees  of  an  association  who  own  or  control  a  Annuni 

2  majority  of  the  capital  stock  of  a  railroad,  street  railway,  gas  or  elec-  Penalty"^' 

3  trie  company  shall  annually  on  vt  before  April  first  file  with  the  com-  H"!^,' 2,^8.' 


2078 


VOLUNTARY  ASSOCIATIONS. 


[Chap.  182. 


1913.  454. 

1914,  742, 
§  14,S. 
1915,20,  § : 


inissioner  and  with  the  department  a  statement  showing  the  number  4 

of  shares  of  such  company  owned  or  controlled  by  them  and  the  stock-  5 

holders  of  record  on  the  books  of  such  company  in  whose  names  such  6 

shares  are  held.    Every  such  trustee  who  fails  to  comply  with  this  section  7 

shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  8 

imprisonment  for  three  months.  9 


State  secretary 
to  print  cer- 
tain state- 
ments, etc., 
as  public 
documents. 
1913,  396. 


Section  5.     The  commissioner  shall  annually  transmit  to  the  state  1 

secretary  copies  of  all  such  written  instruments  or  declarations  of  trust,  2 

and  any  amendments  thereof  or  additions  thereto  which  were  filed  in  his  3 

office  during  the  year  ending  November  thirtieth.    The  secretary  shall  4 

annually  cause  such  of  said  instruments,  declarations  of  trust  and  amend-  .5 

ments  as  have  not  been  previously  printed  under  his  direction,  together  6 

with  such  reports  and  information  relating  to  the  associations  described  7 

in  section  four  as  the  department  may  transmit  to  him  for  the  purpose,  8 

to  be  printed  as  a  public  document.  9 

f"sociatU)"l.'         Section  6.     An  association  may  be  sued  in  an  action  at  law  for  debts  1 

1916, 1S4.         j^j^ff  other  obligations  or  liabilities  contracted  or  incurred  by  the  trustees,  2 

or  by  the  duly  authorized  agents  of  such  trustees,  or  by  any  duly  au-  3 

thorized  officer  of  the  association,  in  the  performance  of  their  respective  4 

duties  under  such  written  instruments  or  declarations  of  trust,  and  for  5 

any  damages  to  persons  or  property  resulting  from  the  negligence  of  6 

such  trustees,   agents  or  officers  acting  in  the  performance  of  their  7 

respective  duties,  and  its  property  shall  be  subject  to  attachment  and  8 

execution  in  like  manner  as  if  it  were  a  corporation,  and  service  of  process  9 

upon  one  of  the  trustees  shall  be  sufficient.  10 


Examination 
by  department. 

1913,  509, 
§§1.2. 

1914,  742, 
§§  150,  199. 


Section  7.     The  department  may  by  its  members  or  duly  author-  1 

ized  employees  investigate  and  examine  the  books,  accounts,  contracts,  2 

records  and  memoranda  of  the  trustees  of  any  association,  who  own  or  3 

hold  the  capital  stock  or  any  part  thereof  of  a  railroad,  street  railway,  4 

electric  railroad  or  elevated  railway  corporation  or  gas  or  electric  com-  5 

pany,  and  may  require  said  trustees  to  furnish  such  reports  and  informa-  6 

tion  as  the  department  shall  from  time  to  time  direct  with  respect  to  the  7 

relations  and  dealings  between  such  trustees  and  any  such  corporation  or  8 

company.  9 


Examination  of 
corporation, 
etc.,  under 
same  manage- 
ment as  public 
service  cor- 
poration. 

1913,  509. 
§§3,4. 

1914,  742. 
§§  151,  199. 


Section  8.  The  department  may  by  its  members  or  duly  author-  1 
ized  employees  investigate  and  examine  the  books,  accounts,  contracts,  2 
records  and  memoranda  of  any  partnership,  express  trust,  \oluntary  3 
association  or  corporation  which  is  under  the  same  ownership,  control  4 
or  management  as  a  railroad,  street  railway,  electric  railroad  or  elevated  5 
railway  corporation  or  gas  or  electric  company,  in  respect  of  the  relations  6 
and  of  any  contracts  and  dealings  between  such  railroad,  street  rail-  7 
way,  electric  railroad  or  elevated  railway  corporation  or  gas  or  electric  8 
company  and  such  partnership,  express  trust,  voluntary  association  or  9 
corporation,  and  in  relation  thereto  may  require  from  such  partnership,  10 
express  trust,  voluntary  association  or  corporation  such  reports  and  in-  11 
formation  as  the  department  shall  from  time  to  time  direct.  12 


Telusingto"^  Section  9.     A   railroad,   street   railway,    electric   railroad,    elevated     1 

submit  to         railway,  gas  or  electric  company,  or  a  partnership  or  corporation  or  the     2 
etc.  '      trustees  of  an  express  trust  or  Noluntary  association,  described  in  the    3 


CH-IP.    182.]  VOLUNTARY  ASSOCIATIONS.  2079 

4  two  preceding  sections,  which  refuses  or  neglects  to  submit  its  or  their  i9i3,  sob,  §  s. 

5  books,  accounts,  contracts,  records  and  memoranda  to  the  investiga-  §§  is2, 199. 

6  tion  and  examination  of  the  department,  or  to  furnish  such  reports  and 

7  information  as  it  shall  from  time  to  time  direct  and  require,  shall  be 

8  punished  by  a  fine  of  not  more  than  five  thousand  dollars. 

1  Section  10.     The  supreme  judicial  court  shall  have  jurisdiction  in  Enforcement 

2  equity  to  enforce  compliance  with  the  three  preceding  sections,  and  with  department, 

3  all  orders  of  the  department  made  under  authority  thereof.  ig'js^  509, 5  6 

1914,  742.  §§  153,  199. 

1  Section  11.     Nothing  contained  in  this  chapter  shall  be  construed  shares  ow-ned 

...  .    .  ,         .  p    .  ,  ,  by  an  associa- 

2  as  authorizmg,  requirmg  or  justiiymg  the  department  in  making  any  tionnottobe 

3  recommendations,  rulings  or  orders  with  respect  to  the  rates  charged  fixing  rates,  etc. 

4  or  the  service  furnished  by  any  corporation  subject  to  its  supervision,  19141742! 

5  to  take  into  consideration  in  any  respect  whatsoever  any  certificates  of  ^  ^^*' 

6  participation  or  shares  issued  under  a  declaration  of  trust  and  repre- 

7  senting  the  beneficial  interest  in  the  stock,  bonds,  notes  or  other  securi- 

8  ties  of  such  corporation,  or  the  investment  in  such  certificates  or  shares. 


2080 


ALIENATION  OF  LAND. 


[Chap.  183. 


PART  II 


REAL  AND  PERSONAL  PROPERTY  AND  DO:\IESTIC 
RELATIONS. 


TITLE    I. 

TITLE  TO  REAL  PROPERTY. 

Chapter  183.  Alienation  of  Land. 

Chapter  184.  General  Provisions  relative  to  Real  Property. 

Chapter  185.  The  Land  Court  and  Registration  of  Title  to  Land. 

Chapter  186.  Estates  for  Years  and  at  Will. 

Chapter  187.  Easements. 

Chapter  188.  Homesteads. 

Chapter  189.  Dower  and  Curtesy. 


CHAPTER     183 


ALIENATION  OF  L.AND. 


Sect.  , 

conveyance  by  deed. 

1.  Sufficiency  of  deed. 

2.  Effect  of  quitclaim  deed. 

3.  Estate  created  without  writing  to  have 

effect  of  estate  at  will. 

4.  Effect  of  unrecorded  deed. 

5.  Record  to  be  evidence  of  delivery. 

6.  Grantee's   name,    residence    and    post 

office  address  to  be  contained  in  or 
endorsed  upon  deed. 

7.  Effect  of  conveyance  by  disseisee. 

SHORT   FORMS. 

8.  General    provisions    as    to    statutory 

forms. 

9.  Meaning  of  words  and  phrases. 

10.  Statutorj'  form  of  warranty  deed. 

11.  Statutory  form  of  quitclaim  deed. 

12.  Word  "grant"  to  be  a  sufficient  word 

of  convej'ance. 

13.  Word  "heirs"  or  "assigns"  not  neces- 

sary to  convey  a  fee. 

14.  Uses  and  trusts. 

15.  Easements,  appurtenances,  etc.,  to  pass 

unless  otherwise  stated. 


Sect. 

16.  Meaning  of  "warranty  covenants." 

17.  Meaning  of  "quitclaim  covenants"  or 

"limited  covenants." 

18.  Statutory  form  of  mortgage. 

19.  Meaning  of  "mortgage  covenants." 

20.  Statutory  condition  in  mortgage. 

21.  Statutory  power  of  sale  in  mortgage. 

22.  Statutory  form   of   co-operative   bank 

mortgage. 

23.  Statutory  co-operative  bank  mortgage 

condition. 

24.  Statutory  co-operative  bank  power  of 

sale. 

25.  Holder  of  mortgage  may  purchase  at 

foreclosure  sale. 

26.  Mortgagor  entitled  to  possession  until 

default. 

27.  Disposition  of  proceeds  of  foreclosure 

sale. 

28.  Assignment  of  mortgage. 

acknowledgment     and     kecordinq     of 

DEEDS. 

29.  Acknowledgment  of  deed  before  record. 

30.  Acknowledgment,  how  made. 


CIL4.P.  183.] 


ALIENATION   OF   LAND. 


2081 


33. 
34. 


35 


36, 


Sect. 

31.  Acknowledgment  by  married  woman. 

32.  Acknowledgment  of  powers  of  attorney 

to  convey  real  estate. 

Certificate  of  authority  of  officer. 

Proof  of  execution  if  grantor  is  dead  or 
non-resident. 

Proof  if  witnesses  are  dead  or  non- 
resident. 

Proof  if  grantor  refuses  to  acknowledge. 

37.  Proof  if  grantor  refuses  to  acknowledge 

and  witnesses  are  dead  or  non-resi- 
dent. 

38.  Copy  of  deed  not  acknowledged  may  be 

filed  in  registry  of  deeds. 

39.  Unwitnessed  deeds  not  to  be  so  proved. 

40.  Endorsement  of  certificate  of  proof. 

41.  Proof    of    deed    outside    the    common- 

wealth. 

42.  Forms  of  acknowledgment,  etc. 

TITLE    BY    DECREE    OF    COURT. 

43.  Final  decree  in  equity  to  vest  title  if 

deed,  etc.,  is  not  executed  as  directed. 

44.  Recording  of  certified  copy  of  decree 

to  have  same  effect  as  recorded  deed, 
etc. 

BARRING    OF    ESTATES    TAIL. 

45.  Tenant    in    tail    may    convey    in    fee 

simple. 

46.  Life  tenant  and  remainderman  in  tail 

may  convey  in  fee  simple. 

47.  Barring  of  equitable  estates  tail. 

48.  Trustee   may   be   required    to   convey 

legal  estate. 

CONVEYANCE  OF  ESTATES  SUBJECT  TO  RE- 
MAINOER,  ETC. 

49.  Probate  court  may  appoint  trustees  to 

convey  or  mortgage. 

50.  Notice  and   appointment  of  guardian 

ad  litem  or  next  friend. 

51.  Trustee  to  give  bond,  and  hold  or  apply 

proceeds  of  sale  or  mortgage. 


Sect. 

52.  Sale  of  land  subject  to  charges  for  pay- 

ment of  annuities,  etc. 

INSTRUMENTS    OF    DEFEASANCE. 

53.  Effect  of  unrecorded  instruments  of  de- 

feasance. 


54. 


55. 


DISCHARGE    OF    MORTGAGES. 

Discharge  on  margin  of  record  or  by 
separate  instrument,  etc. 

Mortgagee  liable  for  refusing  to  dis- 
charge. 


SCHEDULE    OF    FORMS    IN    APPENDIX. 

Statutory  Forms  of  Instrumenta   relating  to 
Real  Estate. 


(1) 
(2) 
(3) 


(4) 
(5) 
(6) 
(7) 
(S) 
(9) 
(10) 
(11) 

(12) 


Warranty  Deed. 

Quitclaim  Deed.  ■ 

Deed     of     Executor,     Administrator, 

Trustee,      Guardian,      Conservator, 

Receiver  or  Commissioner. 
Release. 

Mortgage  Deed. 
Co-operative  Bank  Mortgage. 
Extension  of  Mortgage. 
Partial  Release  of  Mortgage. 
Assignment  of  Mortgage. 
Discharge  of  Mortgage. 
Foreclosure  Deed  under  Power  of  Sale 

in  Mortgage. 
Affidavit  of  Sale  under  Power  of  Sale 

in  Mortgage. 


Forms  of  Acknowledgments^  etc. 

(13)  Acknowledgment  of  Individual  acting 

in  his  Own  Right. 

(14)  Acknowledgment  of  Individual  acting 

by  Attorney. 

(15)  Acknowledgment  of  a  Corporation  or 

Joint  Stock  Association. 

(16)  Certificate  of  Authority  of  Officer  tak- 

ing Acknowledgment. 


CONVEYANCE   BY   DEED. 


1  Section  1.     A  deetl  executed  and  delivered  by  the  person,  or  by  the  Sufficiency 

2  attorney  of  the  person,  having  authority  therefor,  shall,  subject  to  the  i69772i,  §  i. 

3  limitations  of  section  four,  be  sufficient,  without  any  other  act  or  cere-  r.^I.'Io.'Ii.' 

4  mony,  to  convey  land.  G.  s.  89,  §  i.  p.  s.  120,  §  1. 


R.  L.  127.  §  1. 
6  Mass.  24. 


14  Pick.  224. 
12  Met.  157. 


13  Met.  79. 
4  Gush.  345. 


16  Gray,  309. 
137  Mass.  684. 


Section  2.     A  deed  of  ciuitclaim  and  release  shall  be  sufficient  to  Effect  of  quit- 

im  deed. 
S.  59,  §  5. 


2  convey  all  the  estate  which  could  lawfully  be  conveyed  by  a  deed  of  jj'^™ '''^<''' 


3  bargain  and  sale. 


R.  L.  127,  5  2. 
7  Mass.  3S1. 


G.  S. 

8  Pick.  143. 
15  Pick.  82. 


P.  S.  120,  §  2. 


131  Mass.  200. 
1(18  Mass.  201. 


187  Mass.  315. 
211  U.  S.  208. 


1  Section  3.     An  estate  or  interest  in  land  created  without  an  instru-  Estate  created 

2  ment  in  writing  signed  by  the  grantor  or  by  his  attorney  shall  have  the  uig'to^'have" 


•< 


2082 


effect  of  es' 
at  will. 
C.  L.  32.  5 
1692-3,  15 
1783.37,  § 
R.  S.  59,  § 


1. 

,  §  1 
1. 
29. 


ALIENATION   OF   L.-USTD. 


[Chap.  183. 


force  and  effect  of  an  estate  at  will  only,  and  no  estate  or  interest  in  land 
shall  be  assigned,  granted  or  surrendered  unless  by  such  writing  or  by 


operation  of  law. 


G.  S.  89.  §  2. 


P.  S.  120,  §  3. 


II  Mass.  533. 

I  Pick.  43. 
9  Met.  462. 

II  Met.  251. 
1  Gray,  571. 
1  Allen.  133. 
117  Mass.  351. 
150  Mass.  19. 


171  Mass.  329. 
178  Mass.  172. 

185  Mass.  607. 

186  Mass.  14. 

189  Mass.  285. 

190  Mass.  101. 
213  Mass.  380. 


R.  L.  127,  §  3. 

220  Mass.  186,  324. 

221  Mass.  326. 
223  Mass.  550. 
225  Mass.  510. 
227  Mass.  175.562. 
233  Mass.  127,  234. 
235  Mass.  156. 


Effect  of 

unrecorded 

deed. 

C.  L.  32.  §  4. 

1697,21,  §  2. 

1783,  37,  §  4. 

R.  S.  59, 

§§  1,28. 

G.  S.  89, 

§§  1,3. 

P.  .S.  120,  §  4. 

R.  I,.  127,  5  4. 

14  Mass.  29C. 


Section  4.  A  conveyance  of  an  estate  in  fee  simple,  fee  tail  or  for 
life,  or  a  lease  for  more  than  seven  years  from  the  making  thereof,  shall 
not  be  valid  as  against  any  person,  except  the  grantor  or  lessor,  his  heirs 
and  devisees  and  persons  having  actual  notice  of  it,  unless  it,  or  an  office 
copy  as  provided  in  section  thirteen  of  chapter  thirty-six,  is  recorded  in 
the  registry  of  deeds  for  the  county  or  district  in  which  the  land  to  which 

it  relates  lies.  15  Mass.  439.  I6  Mass.  406. 


2  Pick.  184. 

4  Pick.  253. 

5  Pick.  280. 

8  Pick.  329. 

9  Pick.  105. 
11  Pick.  193. 

13  Pick.  460. 

14  Pick.  224. 

22  Pick.  295. 

23  Pick.  80. 

24  Pick.  221. 

1  Met.  212. 

2  Met.  258,  619. 

3  Met.  405. 

6  Met.  475. 

11  Met.  244. 

12  Met.  17.  157. 
2  Gush.  494. 

6  Gush.  163. 
6  Gray,  520. 
9  Gray,  306. 


11  Gray,  267,  495. 

15  Gray,  461. 

16  Gray,  48. 

1  Allen.  373. 

2  Allen,  115. 

3  Allen,  487. 

4  Allen,  406. 

5  Allen,  382. 

7  Allen,  16. 

8  Allen.  1.86,  5S4. 

9  Allen,  80. 

11  Allen,  134. 

12  Allen,  472. 

101  Mass.  179.  444. 

102  Mass.  375. 

103  Mass.  491. 
Ill  M,ass.  270. 
113  Mass.  72. 

129  Mass.  210. 

130  Mass.  83.  128. 

131  Mass.  510. 


132  Mass. 

133  Ma.ss. 

140  Mass. 

141  Mass. 
146  Mass. 
149  Mass. 
162  Mass. 

167  Mass. 

168  Mass. 
181  Mass. 
183  Mass. 
185  Mass. 
197  Mass. 
200  Mass. 
209  Mass. 
211  Mass. 
225  Mass. 
229  Mass. 

232  Mass. 

233  Mass. 
235  Mass. 


320. 

511. 

112. 

181.489. 

610. 

310. 

lOS,  473. 

443. 

118. 

218. 

382. 

107. 

267. 

498. 

359. 

526. 

97,  491. 

4R7. 

491. 

158, 

14. 


Record  to  be 
evidence  of 
delivery. 
1892.  256. 
R.  h.  127,  §  5. 
161  Mass.  381. 


Section  5.  The  record  of  a  deed,  lease,  power  of  attorney  or  other 
instrument,  duly  acknowledged  or  proved  as  provided  in  this  chapter, 
and  purporting  to  affect  the  title  to  land,  shall  be  conclusive  evidence  of 
the  delivery  of  such  instrument,  in  favor  of  purchasers  for  value  without 
notice  claiming  thereunder. 


Grantee's 
Dame,  residence 
and  post  office 
address  to  be 
contained  in  or 
endorsed  upon 
deed. 
1917,62. 


Section  6.  Every  deed  presented  for  record  shall  contain  or  have 
endorsed  upon  it  the  full  name,  residence  and  post  office  address  of  the 
grantee,  and  shall  also  state  whether  the  grantee  is  married  or  unmarried. 
If  the  statements  required  are  not  contained  in  the  body  of  the  deed  but 
are  endorsed  upon  it  they  shall  be  entered  in  the  margin  of  the  record. 
Failure  to  comply  with  this  section  shall  not  affect  the  validity  of  any 
deed  or  prevent  it  from  being  recorded. 


Effect  of  con- 
veyance by 
disseisee. 
1891,354. 
R.L.  127,  §  6. 
101  Mass.  179. 
172  Mass.  395. 
175  Mass.  355. 


Section  7.  A  conveyance  of  land,  if  otherwise  valid,  shall,  notwith- 
standing disseisin  or  adverse  possession,  be  as  effectual  to  transfer  the 
title  of  the  grantor  as  if  he  were  actually  seized  and  possessed  of  such 
land,  and  shall  vest  in  the  grantee  the  rights  of  entry  and  of  action  for 
recovery  of  the  estate  incident  to  such  title. 


General  pro- 
visions as  to 
statutory 
forms. 

1912,502,  5  1. 
225  Mass.  320. 


SHORT   FORiMS. 


Section  8.     The  forms  set  forth  in  the  appendix  to  this  chapter  may  1 

be  used  and  shall  be  sufficient  for  their  respective  purposes.    They  shall  2 

be  known  as  "Statutory  Forms"  and  may  be  referred  to  as  such.    They  .3 

may  be  altered  as  circumstances  require,  and  the  authorization  of  such  4 


Chap.  183.]  alienation  of  land.  2083 

5  forms  shall  not  prevent  the  use  of  other  forms.    Wherever  the  phrase 

6  "  incorporation  by  reference"  is  used  in  the  following  sections,  the  method 

7  of  incorporation  as  indicated  in  said  forms  shall  be  sufficient,  but  shall 

8  not  preclude  other  methods. 

1  Section  9.     For  the  purpose  of  avoiding  the  unnecessary  use  of  Meaning  of 

^  1*11  1*  !•  1  11  -i    ^'ords  and 

2  words  m  deeds  or  other  mstruments  relatmg  to  real  estate,  whether  said  phrases. 

3  statutory'  form  or  other  forms  are  used,  the  rules  and  definitions  con-  §§13,20" 

4  tained  in  sections  ten  to  twenty-eight,  inclusive,  shall  apply  to  all  such 

5  instruments  executed  or  delivered  on  or  after  January  first,  nineteen 

6  hundred  and  thirteen. 

1  Section  10.     A  deed  in  substance  following  the  form  entitled  "War-  statutory 

2  ranty  Deed"  shall  when  duly  executed  have  the  force  and  effect  of  a  deed  ranty°deM" 

3  in  fee  simple  to  the  grantee,  his  heirs  and  assigns,  to  his  and  their  own  ^^^^'  ^°^'  ^  "• 

4  use,  with  covenants  on  the  part  of  the  grantor,  for  himself,  his  heirs, 

5  executors,  administrators  and  successors,  with  the  grantee,  his  heirs, 

6  successors  and  assigns,  that,  at  the  time  of  the  deli^•ery  of  such  deed,  ( 1) 

7  he  was  lawfully  seized  in  fee  simple  of  the  granted  premises,  ( 2)  that  the 

8  granted  premises  were  free  from  all  encumbrances,  (3)  that  he  had  good 

9  right  to  sell  and  convey  the  same  to  the  grantee  and  his  heirs  and  assigns, 

10  and  (4)  that  he  will,  and  his  heirs,  executors  and  administrators  shall, 

11  warrant  and  defend  the  same  to  the  grantee  and  his  heirs  and  assigns 

12  against  the  lawful  claims  and  demands  of  all  persons. 

1  Section  11.     A  deed  in  substance  following  the  form  entitled  "Quit-  statutory  form 

2  claim  Deed  "  shall  when  duly  executed  have  the  force  and  effect  of  a  deed  deS? 

3  in  fee  simple  to  the  grantee,  his  heirs  and  assigns,  to  his  and  their  own  ^^^^'  ^°^'  ^  ^' 

4  use,  with  covenants  on  the  part  of  the  grantor,  for  himself,  his  heirs, 

5  executors,  administrators  and  successors,  with  the  grantee,  his  heirs, 

6  successors  and  assigns,  that  at  the  time  of  the  delivery  of  such  deed  the 

7  premises  were  free  from  all  encumbrances  made  by  him,  and  that  he  will, 

8  and  his  heirs,  executors  and  administrators  shall,  warrant  and  defend  the 

9  same  to  the  grantee  and  his  heirs  and  assigns  fore\'er  against  the  lawful 

10  claims  and  demands  of  all  persons  claiming  by,  through  or  under  the 

11  grantor,  but  against  none  other. 


1  Section  12.     In  a  conveyance  of  real  estate  the  word  "grant"  shall  word  "grant" 

2  be  a  sufficient  word  of  conveyance  without  the  use  of  the  words  "  give,  cient  word  of 

3  bargain,  sell  and  convey ",  and  no  covenant  shall  be  implied  from  the  1912, 502.  §  14. 

4  use  of  the  word  "grant". 

1  Section  13.     In  a  conveyance  or  reservation  of  real  estate  the  terms  word  "heirs- 

2  "heirs",  "assigns"  or  other  technical  words  of  inheritance  shall  not  be  notnlcelSryto 

3  necessary  to  convey  or  reser\"e  an  estate  in  fee.    A  deed  or  reservation  of  i9i2fso'2,'T'i9. 

4  real  estate  shall  be  construed  to  convey  or  reserve  an  estate  in  fee  simple, 

5  unless  a  different  intention  clearly  appears  in  the  deed. 

1  Section  14.     When  a  conveyance  or  devise  of  real  estate  is  made  to  Uses  and  trusts. 

2  a  grantee  or  devisee  to  a  use  intended  to  be  executed  by  the  statute  of  ^^^''  °°"'  ^  '"' 

3  uses,  the  word  "use"  shall  be  employed  in  declaring  the  use;   and  pro- 

4  visions  introduced  by  the  words  "in  trust",  or  other  expressions  that 

5  might  otherwise  create  uses,  shall  be  deemed  to  create  trusts  and  not 


2084 


ALIENATION   OF    LAND. 


[Chap.  183. 


uses.  If  no  use  is  declared  in  a  conveyance  or  devise  of  real  estate,  the  6 
same  shall  take  effect  as  if  it  were  expressed  to  be  for  the  use  of  the  grantee  7 
or  devisee.  S 


appurtenances,       SECTION  15.     In  a  Conveyance  of  real  estate  all  rights,  easements, 

unTess°other-      privilcgcs  and  appurtenances  belonging  to  the  granted  estate  shall   be 

r9i'^so'>'''§  21  included  in  the  conveyance,  unless  the  contrary  shall  be  stated  in  the 

'  deed,  and  it  shall  be  unnecessary  to  enumerate  or  mention  them  either 


generally  or  specifically. 


"waS-Mt?^  Section  16.     In  a  conveyance  of  real  estate  the  words  "warranty 

i9i2"502*§  16  covenants"  shall  have  the  full  force,  meaning  and  effect  of  the  following 
words:  "The  grantor,  for  himself,  his  heirs,  executors,  administrators 
and  successors,  covenants  with  the  grantee,  his  heirs,  successors  and 
assigns,  that  he  is  lawfully  seized  in  fee  simple  of  the  granted  premises; 
that  they  are  free  from  all  encumbrances;  that  he  has  good  right  to  sell 
and  convey  the  same,  and  that  he  will,  and  his  heirs,  executors,  adminis- 
trators and  successors  shall,  warrant  and  defend  the  same  to  the  grantee 
and  his  heirs,  successors  and  assigns  forever  against  the  lawful  claims 
and  demands  of  all  persons". 


1 
2 

3 
4 
5 
6 

7 

8 

9 

10 


Meaning  of 
"  quitclaim 
covenants"  ( 
*'  limited 
covenants." 
1912,  502,  § 


Section  17.     In  a  convej'ance  of  real  estate  the  words  "quitclaim  1 

covenants"  or  the  words  "limited  covenants"  shall  have  the  full  force,  2 

meaning  and  effect  of  the  following  words:    "The  grantor,  for  himself,  3 

his  heirs,  executors,  administrators  and  successors,  covenants  with  the  4 

grantee,  his  heirs,  successors  and  assigns,  that  the  granted  premises  5 

are  free  from  all  encumbrances  made  by  the  grantor,  and  that  he  will,  6 

and  his  heirs,  executors,  administrators  and  successors  shall,  warrant  7 

and  defend  the  same  to  the  grantee  and  his  heirs,  successors  and  assigns  8 

forever  against  the  lawful  claims  and  demands  of  all  persons  claiming  9 

by,  through  or  under  the  grantor,  but  against  none  other".  10 


Statutory  form 
of  mortgage. 
1912,  502,  §  6. 
1913, 369. 


Section  18.     A  deed  in  substance  following  the  form  entitled  "Mort-  1 

gage  Deed"  shall  when  duly  executed  have  the  force  and  effect  of  a  2 

mortgage  deed  to  the  use  of  the  mortgagee  and  his  heirs  and  assigns  3 

with  mortgage  covenants  and  upon  the  statutory  condition  and  with  4 

the  statutory  power  of  sale,  as  defined  in  the  tliree  following  sections,  to  5 

secure  the  paj-ment  of  the  money  or  the  performance  of  any  obligation  G 

therein  specified.    The  parties  may  insert  in  such  mortgage  any  other  7 

lawful  agreement  or  condition.  8 


Meaning  of 
"  mortgage 
covenants." 
1912,  502,  §  IS. 


Section  19.  In  a  conveyance  of  real  estate  the  words  "mortgage  1 
co\'enants"  shall  have  the  full  force,  meaning  and  effect  of  the  following  2 
words,  and  shall  be  applied  and  construed  accordingly:  "The  mort-  3 
gagor,  for  himself,  his  heirs,  executors,  administrators  and  successors,  4 
covenants  with  the  mortgagee  and  his  heirs,  successors  and  assigns,  that  5 
he  is  lawfully  seized  in  fee  simple  of  the  granted  premises;  that  they  6 
are  free  from  all  encumbrances;  that  the  mortgagor  has  good  right  to  7 
sell  and  convey  the  same;  and  that  he  will,  and  his  heirs,  executors,  8 
administrators  and  successors  shall,  warrant  and  defend  the  same  to  9 
the  mortgagee  and  his  heirs,  successors  and  assigns  forever  against  the  10 
lawful  claims  and  demands  of  all  persons;   and  that  the  mortgagor  and  11 


Ch.^P.    183.]  ALIENATION   OF   LAND.  2085 

12  his  heirs,  successors  or  assigns,  in  case  a  sale  shall  be  made  under  the 
1.3  power  of  sale,  will,  upon  request,  execute,  acknowledge  and  deliver  to 

14  the  purchaser  or  purchasers  a  deed  or  deeds  of  release  confirming  such 

15  sale;  and  that  the  mortgagee  and  his  heirs,  executors,  administrators, 

16  successors  and  assigns  are  appointed  and  constituted  the  attorney  or 

17  attorneys  irrevocable  of  the  said  mortgagor  to  execute  and  deli\er  to 

18  the  said  purchaser  a  full  transfer  of  all  policies  of  insurance  on  the  build- 

19  ings  upon  the  land  covered  by  the  mortgage  at  the  time  of  such  sale". 

1  Section  20.     The    following    "condition"    shall    be   known   as    the  statutory 

2  "Statutory  Condition",  and  may  be  incorporated  in  any  mortgage  by  mortgage'" 

3  reference:  llli;  ig^!  ^  ^'^ 

(condition.) 

4  Provided,  nevertheless,  except  as  otherwise  specifically  stated  in  the 

5  mortgage,  that  if  the  mortgagor,  or  his  heirs,  executors,  administrators, 

6  successors  or  assigns  shall  pay  unto  the  mortgagee  or  his  executors, 

7  administrators  or  assigns  the  principal  and  interest  secured  by  the 

8  mortgage,  and  shall  perform  any  obligation  seciu-ed  at  the  time  provided 

9  in  the  note,  mortgage  or  other  instrument  or  any  extension  thereof, 

10  and  shall  perform  the  condition  of  any  prior  mortgage,  and  until  such 

11  payment  and  performance  shall  pay  when  due  and  payable  all  taxes, 

12  charges  and  assessments  to  whomsoever  and  whenever  laid  or  assessed, 

13  whether  on  the  mortgaged  premises  or  on  any  interest  therein  or  on 

14  the  debt  or  obligation  secured  thereby;    shall  keep  the  buildings  on 

15  said  premises  insured  against  fire  in  a  sum  not  less  than  the  amount 

16  secured  by  the  mortgage  or  as  otherwise  provided  therein  for  insiu-ance 

17  for  the  benefit  of  the  mortgagee  and  his  executors,  administrators  and 

18  assigns,  in  such  form  and  at  such  insurance  offices  as  they  shall  approve, 

19  and,  at  least  two  days  before  the  expiration  of  any  policy  on  said 

20  premises,  shall  deliver  to  him  or  them  a  new  and  sufficient  policy  to 

21  take  the  place  of  the  one  so  expiring,  and  shall  not  commit  or  suffer 

22  any  strip  or  waste  of  the  mortgaged  premises  or  any  breach  of  any    - 

23  covenant  contained  in  the  mortgage  or  in  any  prior  mortgage,  then  the 

24  mortgage  deed,  as  also  the  mortgage  note  or  notes,  shall  be  void. 

1  Section  21.     The  following   "power"  shall  be  known  as  the   "Stat-  statutoir 

.  ,  powpr  ot  sulo 

2  utory  Power  of  Sale",  and  may  be  incorporated  in  anv  mortgage  by  in  mortgage. 

3  reference:  i9i3,369. 

(power.) 

4  But  upon  any  default  in  the  performance  or  observance  of  the  fore- 

5  going  or  other  condition,  the  mortgagee  or  his  executors,  administrators, 

6  successors  or  assigns  may  sell  the  mortgaged  premises  or  such  portion 

7  thereof  as  may  remain  subject  to  the  mortgage  in  case  of  any  partial 

8  release  thereof,  either  as  a  whole  or  in  parcels,  together  with  all  improve- 

9  ments  that  may  be  thereon,  by  public  auction  on  or  near  the  premises, 

10  or  at  such  place  as  may  be  designated  for  that  purpose  in  the  mortgage, 

11  first  complying  with  the  terms  of  the  mortgage  and  with  the  statutes 

12  relating  to  the  foreclosure  of  mortgages  by  the  exercise  of  a  power  of  sale, 

13  and  may  convey  the  same  by  proper  deed  or  deeds  to  the  purchaser  or 

14  purchasers  absolutely  and  in  fee  simple;   and  such  sale  shall  forever  bar 

15  the  mortgagor  and  all  persons  claiming  under  him  from  all  right  and 
10  interest  in  the  mortgaged  premises,  whether  at  law  or  in  equity. 


2086 


ALIENATION   OF   LAND. 


[Ch.\p.  183. 


Statutory  form 
of  co-operative 
bank  mortgage. 
1913,  369. 


Section  22.  A  co-operative  bank  mortgage  follo-ning  in  substance  1 
the  form  entitled  "Co-operative  Bank  Mortgage"  shall  when  duly  exe-  2 
cuted  have  the  force  and  effect  of  a  mortgage  deed  to  the  use  of  the  .3 
mortgagee  and  its  successors  and  assigns,  with  mortgage  covenants  and  4 
upon  the  statutory  co-operative  bank  mortgage  condition  and  with  the  5 
statutory  co-operati\'e  bank  power  of  sale,  as  defined  in  the  two  follow-  6 
ing  sections,  to  secure  the  payment  of  the  money  or  the  performance  of  7 
any  obligation  therein  specified.  If  any  buildings  on  the  mortgaged  8 
premises  shall  be  wholly  or  partly  destroyed  by  a  fire  in  respect  to  which  9 
the  company  or  companies  insuring  the  same  shall  deny  liability  to  the  10 
insured,  the  mortgagee  may  at  its  option  forfeit  said  shares,  and,  after  11 
applying  the  withdrawal  value  thereof  to  the  payment  of  said  loan,  in-  12 
terest  and  fines,  may  assign  the  mortgage  with  the  note  and  debt  thereby  13 
secured  to  such  company  or  companies  upon  payment  by  it  or  them  of  l-t 
the  balance  then  owing  to  the  mortgagee  on  account  of  said  loan;  where-  15 
upon  said  note  and  mortgage  shall  forthwith  become  a  note  and  mortgage  16 
payable  on  demand  with  interest  at  the  rate  set  forth  in  said  mortgage,  17 
payable  semi-annually,  the  first  payment  of  such  interest  to  become  due  18 
SLK  months  after  the  date  of  such  assignment.  19 

The  parties  may  insert  in  such  co-operative  bank  mortgage  any  lawful  20 
agreement  or  condition.  21 


statutory 
co-operative 
bank  mortgage 
condition. 
1913,  3li9. 


Section  23.     The  following  "co-operative  bank  mortgage  condition"  1 

shall  be  known  as  the  "Statutory  Co-operative  Bank  Mortgage  Condi-  2 

tion  ",  and  may  be  incorporated  in  any  co-operative  bank  mortgage  by  3 

reference :  4 

(co-operative  bank  mortgage  condition.) 

Provided,  nevertheless,  that  if  the  mortgagor  or  his  heirs,  executors,  5 
administrators,  successors  or  assigns  shall  pay  unto  the  said  mortgagee,  6 
its  successors  or  assigns,  at  its  place  of  business,  the  monthly  dues,  7 
interest  and  premium,  if  any,  together  with  all  fines  on  payments  in  8 
arrears,  montlily  at  or  before  the  stated  meetings  of  said  bank,  luitil  9 
said  shares  shall  reach  their  matured  value,  or,  if  the  mortgagor  or  his  10 
heirs,  executors,  administrators  or  assigns  shall  otherwise  sooner  pay  11 
said  loan  unto  the  said  mortgagee,  its  successors  or  assigns,  together  12 
with  the  said  interest  and  fines  to  the  time  of  the  next  stated  montlily  13 
meeting  after  such  payment,  and  shall  pay  when  due  all  taxes  and  as-  l-l 
sessments  levied  or  assessed  on  the  mortgaged  premises,  and  all  taxes  15 
which  the  said  mortgagee  may  be  required  to  pay  as  holder  of  this  16 
mortgage,  shall  keep  the  buildings  thereon  insured  against  fire  in  a  17 
sum  satisfactory  to  and  for  the  benefit  of  the  said  mortgagee,  its  sue-  18 
cessors  or  assigns,  at  such  insurance  office  and  by  such  insm-ance  com-  19 
pany  as  it  or  they  shall  approve,  or,  in  default  thereof,  shall  on  demand  20 
pay  to  the  said  mortgagee,  its  successors  or  assigns  all  such  sums  as  it  21 
shall  reasonably  pay  for  such  taxes,  assessments  and  insurance,  with  22 
interest,  and  shall  not  commit  or  suffer  any  strip  or  waste  of  the  mort-  23 
gaged  premises,  or  any  breach  of  any  covenant  herein  contained  or  in  24 
any  prior  mortgage,  then  the  mortgage  deed,  as  also  the  mortgage  note,  25 
shall  be  void.  26 


c^opeSve  Section  24.     The   following    "co-operative   bank   power"    shall   be     1 

bank  power       kuown  as  the  "Statutory  Co-operative  Bank  Power  of  Sale",  and  may    2 
1913,309.         be  incorporated  in  any  mortgage  by  reference:  3 


ClL\P.    183.]  ALIENATION    OF   L.\ND.  2087 


(co-operative  bank  power.) 

4  But  in  case  of  non-payment  of  the  aforesaid  monthly  dues,  interest  or 

5  fines  and  premiums,  if  any,  for  more  than  four  months  after  any  payment 

6  thereof  shall  be  due,  or  upon  any  other  default  in  the  performance  or 

7  observance  of  the  foregoing  or  other  condition,  the  mortgagee  or  its  suc- 

8  cessors  or  assigns  may  sell  the  mortgaged  premises  or  such  portion  thereof 

9  as  may  remain  subject  to  the  mortgage  in  case  of  any  partial  release 

10  thereof,  either  as  a  whole  or  in  parcels,  together  with  all  improvements 

11  that  may  be  thereon,  by  public  auction  on  or  near  the  premises,  or  at 

12  such  place  as  may  be  designated  for  that  purpose  in  the  mortgage,  first 

13  complying  with  the  terms  of  the  mortgage  and  with  the  statutes  relating 

14  to  the  foreclosure  of  mortgages  by  the  exercise  of  a  power  of  sale,  and 

15  may  convey  the  same  by  proper  deed  or  deeds  to  the  purchaser  or  pur- 

16  chasers  absolutely  and  in  fee  simple;    and  such  sale  shall  forever  bar 

17  the  mortgagor  and  all  persons  claiming  under  him  from  all  right  and 

18  interest  in  the  mortgaged  premises,  whether  at  law  or  in  equity. 

1  Section  25.     The  holder  of  a  mortgage  of  real  estate,  or  any  person  HoWer  of 

2  acting  in  his  behalf,  may  purchase  at  a  foreclosure  sale  unless  the  con-  puTchaJfat"^ 

3  trary  is  stated  in  the  mortgage.  1912. 502,  §  22.  foreclosure  sale. 

1  Section  26.     Until  default  in  the  performance  or  observance  of  the  Mortgagor 

2  condition  of  a  mortgage  of  real  estate,  the  mortgagor  and  his  heirs  and  pSsseiion 

3  assigns  may  hold  and  enjoy  the  mortgaged  premises  and  receive  the  i9i2,'502"§*'23. 

4  rents  and  profits  thereof,  unless  otherwise  stated  in  the  mortgage. 

1  Section  27.     The  holder  of  a  mortgage  of  real  estate,  or  his  representa-  Disposition  of 

2  tives,  out  of  the  money  arising  from  a  sale  under  the  power  of  sale  shall  FoTeXsurf  sale. 

3  be  entitled  to  retain  all  sums  then  secured  by  the  mortgage,  whether  1912. 502,  §  24. 

4  then  or  thereafter  payable,  including  all  costs,  charges  or  expenses  in- 

5  curred  or  sustained  by  him  or  them  by  reason  of  any  default  in  the  per- 

6  formance  or  observance  of  the  condition  of  the  mortgage  or  of  any  prior 

7  mortgage,  rendering  the  surplus,  if  any,  to  the  mortgagor,  or  his  heirs, 

8  successors  or  assigns,  unless  otherwise  stated  in  the  mortgage.    No  person 

9  other  than  the  holder  of  the  mortgage  shall  be  bound  to  see  to  the  ap- 
10  plication  of  the  money  arising  from  such  sale. 


nment  of 
tgap:e. 


1  Section  28.     In  an  assignment  of  a  mortgage  of  real  estate  the  word  ^,ojfj[ 

2  "assign"  shall  be  a  sufficient  word  to  transfer  the  mortgage,  without  1912.  S02,  §  20. 

3  the  words  "transfer  and  set  over". 

acknowledgment  and  recording  of  deeds. 

1  Section  29.     No  deed  shall  be  recorded  unless  a  certificate  of  its  Aoknowiedg- 

2  acknowledgment  or  of  the  proof  of  its  due  execution,  made  as  herein-  brforo°rccord. 

3  after  provided,  is  endorsed  upon  or  annexed  to  it,  and  such  certificate  ilioV.lt.lt. 

4  shall  be  recorded  at  length  with  the  deed  to  which  it  relates;   but  this  r*|'|9;|22 

5  section  shall  not  apply  to  conveyances  from  the  United  States.  t-gpl  8|'^s  28. 

p.  S.  120,  §5.  4  Mass.  541.  22  Pick.  85.  2  Cush.  494. 

It.  L.  127,  §  7.  10  Pick.  72.  23  Pick.  SO.  215  Mass.  150. 

1  Section  30.     The  acknowledgment  of  a  deed  or  other  written  in-  Acknowiedg- 

2  strument  reciuired  to  be  acknowledged  shall  be  by  one  or  more  of  the  made.''"" 

3  grantors  or  by  the  attorney  executing  it.    The  officer  before  whom  the  JUg;  ?25,S'*i. 


2088 


ALIENATION   OF   L.VND. 


[Chap.  183. 


R.  S.  59. 

§§  12.  1.-?.  22. 

1856,  253,  §  1. 


14  Allen,  109. 


13  Pick.  523. 
11  Cush.  147. 
208  Mass.  236. 


acknowledgment  is  made  shall  endorse  upon  or  annex  to  the  instrument 
a  certificate  thereof.    Such  acknowledgment  may  be  made  — 

i  3,  4,  6. 


G.S.  89.  §§  IS.  19.  28. 
1867.  250.  §  1. 
1875.  142. 
P.  S.  120.  §  6. 


1894.  253. 

1895.  460. 
R.  L.  127.  §§  8.  19.  22. 


1902.  289. 
9  Grav.  56. 
165  Mass.  359. 


( a)  If  within  the  commonwealth,  before  a  justice  of  the  peace,  notary  6 
public  or  special  commissioner.  7 

(b)  If  without  the  commonwealth,  in  any  state,  territory,  district  or  8 
dependency  of  the  United  States,  before  a  justice  of  the  peace,  notary  9 
public,  magistrate  or  commissioner  appointed  therefor  by  the  governor  10 
of  this  commonwealth,  or,  if  a  certificate  of  authority  in  the  form  pre-  11 
scribed  by  section  thirty-three  is  attached  thereto,  before  any  other  12 
officer  therein  authorized  to  take  acknowledgments  of  deeds.  13 

(c)  If  without  the  United  States  or  any  dependency  thereof,  before  14 
a  justice  of  the  peace,  notary,  magistrate  or  commissioner  as  above  pro-  15 
vided,  or  before  an  ambassador,  minister,  consul,  vice  consul,  charge  16 
d'afTaires  or  consular  ofBcer  or  agent  of  the  United  States  accredited  17 
to  the  comitry  where  the  acknowledgment  is  made;  if  made  before  an  18 
ambassador  or  other  official  of  the  United  States,  it  shall  be  certified  19 
by  him  under  his  seal  of  office.  20 


Acknowledg- 
ment by 
married 
woman. 
1894,253.  §  2. 


Section  31.  The  acknowledgment  by  a  married  woman  may  be  taken  1 
in  the  same  form  as  if  she  M'ere  sole,  and  without  any  examination  sepa-  2 
rate  and  apart  from  her  husband.  R.  l.  127, 1 9.  3 


Acknowledg- 
ment of 
powers  of 
attorney  to 
convey  real 
estate. 


Section  32.     The  law  relative  to  the  acknowledgment  and  recording  1 

of  deeds  shall  apply  to  letters  of  attorney  for  the  conveyance  of  real  2 

estate.  is49, 205.  o.  s.  S9,  §  29.  3 

1879.  86.  p.  S.  120,  §  14.  R.  L.  127.  §  17.  22  Pick.  85. 


Certificate  of 

authority  of 

officer. 

1S94.  253.  §  4. 

R.  L.  127,  §  20. 


Section  33.    Whenever,  under  clause  {b)  of  section  thirty  or  under  1 

section  forty-one,  a  certificate  of  authority  is  required  to  be  attached,  2 

there  shall  be  subjoined  or  attached  to  the  certificate  of  proof  or  ac-  3 

knowledgment  a  certificate  of  the  secretary  of  state  of  the  state  where  4 

the  officer  taking  the  acknowledgment  resides,  under  the  seal  of  such  5 

state,  or  a  certificate  of  the  clerk  of  a  court  of  record  of  such  state  in  6 

the  county  where  said  officer  resides  or  where  he  took  such  proof  or  7 

acknowledgment,  under  the  seal  of  the  court,  stating  that  said  officer  8 

was,  at  the  time  of  taking  such  proof  or  acknowledgment,  duly  author-  9 

ized  thereto  in  said  state,  and  that  said  secretary  of  state  or  clerk  of  10 

court  is  well  acquainted  with  his  hand^Titing  and  verily  believes  the  11 

signature  affixed  to  such  certificate  of  proof  or  acknowledgment  is  genuine.  12 


Proof  of 
execution  if 
grantor  is  dead 
or  non-resident. 
1697,21.  4  2. 
178.3,  37,  §  4. 
R.  S.  59,  §  14. 


Section  34.  If  the  grantor  dies  or  removes  from  the  commonwealth 
without  having  acknowledged  his  deed,  the  due  execution  thereof  may  be 
proved  before  any  court  of  record  in  this  commonwealth  by  the  testi- 
mony of  a  subscribing  witness  thereto.        g.  s.  s9,  §  20.         p.  s.  120.  §  7. 

R.L.  127,  §10.  1  Mass.  58.  174  Mass.  292.  185  Mass.  107. 


Section  35.     If  all  the  subscribing  witnesses  to  the  deed  are  also 


Proof  if  wit- 
nesses are  dead 

°^J'y°°g''«'^''«"*-  dead  or  out  of  the  commonwealth,  the  due  execution  thereof  may  be 
RS.M, |i5.  proved  before  such  court  by  proving  the  handwriting  of  the  grantor 
p.s.'i26.§"'8.'    and  of  a  subscribing  witness. 

R.  L.  127,  §  11.  S  Met.  355.  174  Mass.  292.  1S5  Mass.  107. 


Chap.  183.]  alienation  of  l.\nd.  2089 

1  Section  36.     If   a   grantor   refuses   to   acknowledge   his   deed,   the  Proof  if 

2  grantee  or  any  person  who  claims  luider  him  may  apply  to  a  court  of  to'ack'nowkdge- 

3  record  in  the  county  where  the  land  lies  or  where  the  grantor  or  a  sub-  fgjf,  |i'  1 1; 

4  scribing  witness  to  the  deed  resides,  and  such  court  shall  thereupon  ^'^^J'lJ'  ^  ^■ 

5  issue  a  summons  to  the  grantor  to  appear  at  a  certain  time  and  place  plK^- 

6  to  hear  the  testimony  of  the  subscribing  witnesses.     Such  summons,  §'§22,23. 

7  with  a  copy  of  the  deed  annexed,  shall  be  served  seven  days  at  least  r'.  l.  i'27,  §  i2. 

8  before  the  time  therein  assigned  for  proving  the  deed,  and  at  such  hear- 

9  ing  its  due  execution  may  be  proved  by  the  testimony  of  one  or  more 
10  of  the  subscribing  witnesses. 

1  Section  37.     If  a  grantor  refuses  to  acknowledge  his  deed  and  the  Proof  if 

2  subscribing  witnesses  thereto  are  all  dead  or  out  of  the  commonwealth,  foreknowledge 

3  its  execution  may  be  proved  before  any  court  of  record  in  this  common-  aJ'^deadof'^ 

4  wealth  by  proving  the  handwriting  of  the  grantor  and  of  a  subscribing  R°g'^|9'^!°ij 

5  witness,  the  court  first  summoning  the  grantor  for  the  purpose  and  in  p|f?A^-^*A 

6  the  manner  provided  in  the  preceding  section.  R.  l.  127,  §  13. 

1  Section  38.     A  person  interested  in  a  deed  which  has  not  been  Copy  of  deed 

2  acknowledged  may,  before  or  during  proceedings  before  a  court  for  ?dge'd  may  be 

3  proof  of  its  execution,  file  in  the  proper  registry  of  deeds  a  copy  thereof,  of^deeds^^^^'^''^ 

4  compared  with  the  original  by  the  register;  and  the  filing  of  such  copy  legV.li', I3 

5  shall  for  thirty  days  thereafter  have  the  same  efYect  as  the  recording  r*|'|J'^^- 

6  of  the  deed,  if  the  deed  is  within  that  time  duly  proved  and  recorded;  pi^-^o- 

7  or  if,  at  the  expiration  of  said  thirty  days,  such  proceedings  are  pending,  §§  25, 26. 

8  the  eft'ect  of  filing  such  copy  shall  continue  until  the  expiration  of  seven  r.l.  r27,  §  li. 

9  days  after  the  termination  of  such  proceedings. 

1  Section  39.     The  execution  of  a  deed  shall  not  be  proved  in  the  Unwitnessed 

2  manner  before  provided  unless  it  has  at  least  one  subscribing  witness.       brsoprmld. 

R.  S.  59,  §  21.  G.  S.  89,  §  27.  P.  S.  120,  §  12.  R.  L.  127,  §  15. 

1  Section  40.     A  certificate  of  proof  of  the  execution  of  a  deed  shall  Endorsement 

^  ^  ot  certificate 

2  be  endorsed  upon  it  or  annexed  thereto  by  the  clerk  or  register  of  the  ?7Po°Sl- 

3  court  or  by  the  judge  before  whom  such  proof  is  made,  and  the  certificate  R-  s.'sg,' 

4  shall  state  whether  the  grantor  was  present  at  the  hearing. 

G.  S.  89,  §§  23,  28.  P.  S.  120,  §  13.  R.  L.  127,  §  16.  185  Mass.  107. 

1  Section  41.     The  proof  of  a  deed  or  other  instrument,  if  made  with-  Proof  of  deed 

2  out  the  commonwealth  in  some  state,  territory,  district  or  dependency  of  commonwealth. 

3  the  United  States,  may  be  made  before  any  of  the  persons  enumerated  in  gf"3,'4.^6.' 

4  clause  (6)  of  section  thirty;  provided,  however,  that  a  certificate  of  au-  f5  5'9/|J;22 

5  thority  as  provided  in  section  thirty-three  shall  be  attached  thereto;   if 

6  withovit  the  United  States  or  any  dependency  thereof,  such  proof  may 

7  be  made  before  any  of  the  persons  enumerated  in  clause  (c)  of  said  section 

8  thirty. 

1  Section  42.     The  forms  set  forth  in  the  appendix  to  this  chapter  for  Forms  of 

2  taking  acknowledgments  to  deeds  and  other  instruments  and  for  certi-  ment?  et?.  ^' 

3  fying  the  authority  of  officers  taking  proofs  or  acknowledgments  may  §u*,'|.^^' 

4  be  used;  but  this  shall  not  prevent  the  use  of  any  other  forms  heretofore  jf^L'to'?' 

5  lawfully  used.  §§  is,2'i,'2.3. 


2090 


ALIENATION   OF   LAND. 


[CtL^P.    1S3. 


Final  decree 
in  equity  to 
vest  title  if 
deed,  etc..  is 
not  executed 
as  directed. 
1910.  376.  §  1. 
216  Mass.  420, 
500. 


TITLE  BY  DECREE   OF  COURT. 

Section  4.3.     Wlienever  a  final  decree  in  equity  shall  be  made  by  the  1 

supreme  judicial  or  superior  court  directing  that  a  deed,  conveyance  or  2 

release  of  any  real  estate  or  interest  therein  shall  be  made,  and  the  party  3 

directed  to  make  such  deed,  con\-eyance  or  release  does  not  duly  execute  4 

it  within  the  time  specified  in  the  decree,  the  decree  itself  shall  operate  5 

to  vest  title  to  the  real  estate  or  interest  in  the  party  entitled  thereto  by  6 

the  decree  as  fully  and  completely  as  if  such  deed,  conveyance  or  release  7 

had  duly  been  executed  by  the  party  directed  to  make  it.  8 


Recording  of 
certified  copy 
of  decree  to 
have  same 
effect  as 
recorded  deed, 
etc. 

1910.  370, 
§§2,3. 


Section  44.     The  recording  or  registration  of  a  duly  certified  copy  of  1 

such  decree,  attested  by  the  clerk  or  assistant  clerk  of  the  court  where  2 

made,  in  the  registry  of  deeds  of  the  district  where  said  real  estate  is  3 

situated,  shall  ha\'e  the  same  force  and  effect  as  if  a  duly  executed  deed,  4 

conveyance  or  release  had  so  been  recorded  or  registered.  5 


barring  of  estates  tail. 


Tenant  in  tail 
may  convey  in 
fee  simple. 
1791.60,  §  1. 
R.  S.  59,  5  3. 
G.  S.  89,  I  4. 
P.  S.  120,  §  1.5. 


Section  45.  A  person  seized  of  land  as  tenant  in  tail  may  convey 
such  land  in  fee  simple  by  a  deed  in  common  form,  as  if  he  were  seized 
thereof  in  fee  simple;  and  such  conveyance  shall  bar  the  estate  tail  and 
all  remainders  and  reversions  e.xpectant  thereon. 


R.  L.  127,  §  24. 

9  Mass.  161. 
15  Pick.  104. 

10  Met.  366, 
3  Gray,  162. 


5  Gray,  523. 
4  Allen,  400. 
99  Mass.  364. 
102  Mass.  202. 
138  Mass.  376. 


147  Mass.  17. 
158  Mass.  74. 
1.59  Mass.  424. 
212  U.  S.  208. 


Life  tenant 
and  remainder- 
man in  tail 
may  convey  in 
fee  simple. 
1804,  59. 
R.  S.  59.  §4. 
G.  S.  89,  §  5. 
P.  S.  120.  §  16. 
R.  L.  127,  §  25. 
147  Mass.  17. 


Section  46.  If  land  is  held  by  one  person  for  life  with  a  vested  re- 
mainder in  tail  in  another,  the  tenant  for  life  and  the  remainderman  may 
convey  such  land  in  fee  simple  by  their  deed  or  deeds  in  common  form,  as 
if  the  remainder  had  been  limited  in  fee  simple;  and  such  deed  or  deeds 
shall  bar  the  estate  tail  and  all  remainders  and  reversions  expectant 
thereon. 


S'lStabiels-          Section  47.     Equitable  estates  tail,  in  possession  or  remainder,  and  1 

1I5T *i4'§  1      ^'1  remainders  and  reversions  expectant  thereon,  may  be  barred  in  the  2 

§f  ?oA^<:'';,    same  manner  as  legal  estates  tail  and  the  remainders  and  reversions  3 

Jr.  O.  IJU,  s  17.  ^ 

R.  L.  127,  §  26.  expectant  thereon.  4 


Trustee  may 
be  required  to 
convey  legal 
estate. 
1851.  14,  §  2. 
G.  S.  89.  §  7. 
P.  S.  120,  §  IS. 


Section  4S.  The  person  to  whom  an  equitable  fee  simple  is  conveyed 
pursuant  to  the  preceding  section  shall,  upon  request  therefor,  be  en- 
titled to  a  con\-eyance  of  the  outstanding  legal  estate  from  the  person  in 
whom  such  legal  estate  is  then  or  thereafter  vested  in  trust. 

R.  L.  127,  §  27. 


Probate  court 
may  appoint 
trustees  to 
convey  or 
mortgage. 
1868.  287. 
§51,2. 
1869,331. 
1871,322, 
5§  1-3. 

1873,  280,  5  2. 
P.  S.  120.  §  19. 
1895,  183,  §  1. 


conveyance  of  estates  subject  to  rem.\inder,  etc. 

Section  49.  If  land  is  subject  to  a  vested  or  contingent  remainder, 
executory  devise  or  power  of  appointment,  the  probate  court  for  the 
county  where  such  land  is  situated  may,  upon  the  petition  of  any 
person  having  an  estate  or  interest  therein,  either  present  or  future, 
vested  or  contingent,  and  after  notice  and  other  proceedings  as  herein- 
after required,  appoint  one  or  more  trustees  and  authorize  him  or  them 
to  sell  and  convey  such  land  or  any  part  thereof  in  fee  simple,  if  such 


Chap.  183.]  alienation  of  land.  2091 

8  sale  and  conveyance  appears  to  the  court  to  be  necessary  or  expedient,  jf^/'J??' 

9  or  to  mortgage  the  same  for  such  an  amount,  on  such  terms  and  for  such  §§28.29.' 

10  purposes  as  may  seem  to  the  court  judicious  or  expedient;    and  such  ihr'.soe. 

1 1  con^•eyance  or  mortgage  shall  be  valid  and  binding  upon  all  parties.  122'Mass.  243. 

123  Mass.  280.  233  Mass.  547. 

1  Section  50.     Notice  of  a  petition  under  the  preceding  section  shall  ^p°po^nt'm^nt 

2  be  given  in  such  manner  as  the  court  may  order  to  all  persons  who  are  of  guardian 

1  1  •  1   •         1        1         1  1  •    1       1  ■    ■  '"*  litem  or 

3  or  who  mav  become  mterested  m  the  land  to  which  the  petition  relates,  ne='t  friend. 

1868  287  §  2 

4  and  to  all  persons  whose  issue,  not  in  being,  may  become  interested  i87i!  322!  §  2. 

5  therein;   and  the  court  shall  of  its  own  motion  in  every  case  appoint  a  189.5.  Tss.  §  2 ' 

6  suitable  person  to  appear  and  act  therein  as  the  next  friend  of  all  minors,  fgu.  soe,' 1 3°' 

7  persons  not  ascertained,  and  persons  not  in  being,  who  are  or  may  be-  "^^  ^'^^^-  ^^*- 

8  come  interested  in  such  land;  and  provisions  of  sections  thirty-four  and 

9  thirty-five  of  chapter  two  hundred  and  one  consistent  herewith  shall 
10  apply  in  the  case  of  such  appointment. 

1  Section  51.     A  trustee  appointed  under  section  forty-nine  shall  give  Trustee  to 

2  bond  in  such  form  and  for  such  amount  as  the  court  appointing  him  hold  orappt"'^ 

3  may  order,  and  he  shall  receive  and  hold,  invest  or  apply  the  proceeds  saTe"r''^°' 

4  of  any  sale  or  mortgage  made  by  him  for  the  benefit  of  the  persons  who  J^eg^Sff 

5  would  have  been  entitled  to  the  land  if  such  sale  or  mortgage  had  f  |,V  \' , , 

/>!  Till  (•  1  lo71,  OZZ,  §    1. 

b  not  been  made,  and  the  probate  court  01  any  county  where  any  part  p  s.  120.  §  21. 

7  of  such  land  is  situated  shall  have  jurisdiction  of  all  matters  thereafter  R.  l!  127',  §  31. 

8  arising  relative  to  such  trust.  i9i7, 306,  §  4.  233  Mass.  547. 

1  Section  52.     If  land  is  charged  with  the  payment  of  money,  either  Saie  of  land 

2  in  fixed  amounts  or  in  annuities  for  a  life  or  lives  or  for  years,  the  supreme  oLrges  for 

3  judicial  court  for  the  county  where  any  part  of  such  land  is  situated  annuiti"el.°itc. 

4  may  upon  the  petition  of  the  persons  holding  title  thereto  subject  to  the  l^'^f.'j.^^" 

5  charge  of  such  payment,  and  after  notice  and  a  hearing,  authorize  them  ^-  ^  ^2^7  V32 

6  to  sell  and  convey  by  private  sale  or  pubhc  auction  the  whole  or  any 

7  portion  of  such  land  in  fee  simple  and  free  from  such  charges,  whether 

8  present  or  future,  certain  or  contingent;  and  it  shall  in  such  case  provide 

9  by  its  decree  for  the  payment  of  the  amounts  charged  upon  such  land  by 

10  placing  the  whole  or  any  portion  of  the  proceeds  of  the  sale  thereof  in 

11  the  hands  of  a  trustee  appointed  by  it,  by  the  purchase  of  annuities  for 

12  the  persons  entitled  to  receive  the  amounts  so  charged,  or  by  any  other 

13  means  which  shall  be  considered  just  and  reasonable.     Such  trustees 

14  .shall  give  bond  in  such  sum  as  the  court  may  order,  shall,  under  the 

15  direction  of  the  court,  manage  and  account  for  the  trust  fund  and  shall 
IG  distribute  the  income  thereof  according  to  its  decree. 


instruments  of  defeasance. 


Effect  of 
nrecorded 


1  Section  53.     If  a  deed  purports  to  contain  an  absolute  conveyance  of  J 

2  land,  but  is  made  defeasible  by  a  deed,  bond  or  other  instrument,  the  instruments 

..,,,,,,  1  I  I  «.  1  •  1  of  defeasance. 

.3  original  deed  shall  not  be  therebv  affected,  as  against  anv  person  other  1802. 33. 

4  than  the  maker  of  the  instrument  of  defeasance  and  his  heirs  and  dev-  g!  s!  89!  |  is! 

5  isees  and  persons  having  actual  notice  of  it,  unless  such  instrument  is  r.  l.  r27,  §'33. 

6  recorded  in  the  registry  of  deeds  for  the  county  or  district  where  the  f  pick!  15?; 

7  land  to  which  it  relates  is  situated. 

12  Met.  157.  6  Gush.  170.  130  Mass.  50. 

2  Gush.  494.  5  Gray,  505.  145  Mass.  389. 


2092 


ALIENATION   OF   LAND. 


[Ch.\p.  183. 


Discharge  on 
margin  of 
record  or  by 
separate  in- 
strument, etc. 
1697,21.  §  4. 
1783,  37,  I  6. 
R.  S.  69,  §  33. 
G.  S.  89,  §  30. 
1870,  171. 
P.  S.  120, 
§§  24,  26. 
R.  L.  127.  I  34. 

1907,  294. 

1908,  149. 

15  Gray,  461. 
8  Allen,  165. 
134  Mass.  680. 
226  Mass.  682. 
231  Mass.  270. 
235  Mass.  14. 


DISCHARGE   OF   MORTGAGES. 

Section  54.  A  mortgage  may  be  discharged  by  an  entry  acknowl-  1 
edging  satisfaction  thereof,  made  on  the  margin  of  the  record  of  the  2 
mortgage  in  the  segistry  of  deeds  and  signed  by  the  mortgagee,  his  3 
executor,  administrator,  successor  or  assignee,  and  his  signature  wit-  4 
nessed  by  the  register  of  deeds  or  by  the  assistant  register  of  deeds,  or  5 
by  some  person  employed  in  the  registry  of  deeds  designated  by  the  6 
register  for  that  purpose  by  a  writing  which  shall  be  recorded  in  said  7 
registry;  and  such  entry  shall  have  the  same  effect  as  a  deed  of  release  8 
duly  acknowledged  and  recorded.  One  of  two  or  more  joint  holders  of  9 
a  mortgage  may  so  discharge  it  or  he  may  discharge  it  by  a  deed  of  10 
release  duly  acknowledged  and  recorded.  A  mortgage  may  also  be  11 
discharged  by  a  written  acknowledgment  of  payment  or  satisfaction  12 
of  the  debt  thereby  secured,  or  of  the  conditions  therein  contained,  13 
signed  and  sealed  by  the  mortgagee,  his  executor,  administrator,  sue-  14 
cessor  or  assignee.  Such  instrument  shall  have  the  same  effect  as  a  15 
deed  of  release,  shall  be  valid  if  executed  by  one  of  two  or  more  16 
joint  holders  of  a  mortgage  and  may  be  recorded  when  duly  acknowl-  17 
edged  or  on  proof  of  its  execution  in  accordance  with  sections  thirty-  18 
four  to  forty-one,  inclusive.  19 


Mortg.agee 
liable  for 
refusing  to 
discharge. 
1697,21,  §4. 
1783,37,  §  6. 
R.  S.  59,  §  34. 
G.S.  89,  §  31. 
P.  S.  120,  §  25. 
R.  L.  127,  §  35. 
225  Mass.  75. 


Section  55.  If  a  mortgagee,  his  executor,  administrator,  successor 
or  assignee,  after  full  performance  of  the  condition  of  his  mortgage, 
whether  before  or  after  breach  of  such  condition,  refuses  or  neglects  for 
seven  days  after  request  therefor  and  after  a  tender  of  his  reasonable 
charges,  to  make  such  discharge  or  to  execute  and  acknowledge  a  deed 
of  release  of  the  mortgage,  he  shall  be  liable  in  tort  for  all  damages 
caused  by  such  neglect  or  refusal. 


Appendix. 

statutory  forms  of  instruments  relating  to  real  estate. 

(1)     Warranhj  Deed. 


(being  unmarried),  for 
with  warranty 


1912,  502,  §  2.    of  ,  County, 

consideration  paid,  grant  to  of 

covenants  the  land  in 

(description  and  encumbrances,  if  any) 

wife  of  said  grantor,  release  to  said  grantee  all  rights  of 
dower  and  homestead  and  other  interests  therein. 

Witness  hand  and  seal  this  daj'  of 

(Seal.) 

(Here  add  acknowledgment.) 


1912,  502,  §  3. 


of 


(2)     Quitclaim  Deed. 
County, 


(being   unmarried), 
with  quitclaim 


for  consideration  paid,  grant  to  of 

covenants  the  land  in 

(description  and  encumbrances,  if  any) 

wife  of  said  grantor,  release  to  said  grantee  all  rights  of 
dower  and  homestead  and  other  interests  therein. 

Witness  hand  and  seal  this  day  of 

(Seal.) 

(Here  add  acknowledgment.) 


Ch.\P.    183.]  ALIENATION    OF    L.USTD.  2093 


(3)     Deed  of  Executor,  Administrator,   Trustee,  Guardian,  Conservator,  Receiver 

or  Commissioner. 

executor  of  the  will  of  administrator  of  the  estate  I9i2, 502 

of  trustee    under  guardian    of  conserva- 

tor of  receiver  of  the  estate  of  conunissioner 

by  the  power  conferred  by  ,  and  every  other  power,  for 

dollars  paid,  grant  to  the  land  in 

(description) 

Witness  hand  and  seal  this  day  of 


(Here  add  acknowledgment.) 


(Seal.) 


(•1)     Release. 


of  ,  County,  for    consideration    paid,    re-  I9i2, 502,  §  5. 

lease  to  of  the  land  in 

(description) 

wife  of  said  release  to  said  all 

rights  of  dower  and  homestead  and  other  interests  therein. 
Witness  hand  and  seal  this  day  of 

(Seal.) 

(Here  add  acknowledgment.) 

(5)    Mortgage  Deed. 

of  ,  County,  for  consideration  paid,  grant  i9i2. 5(12,  §  6. 

to  of  with   mortgage   covenants,    to   secure   the   pay- 

ment of  dollars  in  years  with  per  cent 

interest  per  annum,  payable  semi-annually,  as  provided  in  note  of 

even  date,  the  land  in 

(description  and  encumbrances,  if  any) 

This  mortgage  is  upon  the  statutory  condition,  for  any  breach  of  which  the  mort- 
gagee shall  have  the  statutory  power  of  sale. 

wife  of  said  mortgagor,  release  to  the  mortgagee  all 

rights  of  dower  and  homestead  and  other  interests  in  the  mortgaged  premises. 
Witness  hand  and  seal  this  day  of 

(Seal.) 

(Here  add  acknowledgment.) 


(6)     Co-operative  Bank  Mortgage. 

of  ,  County,  Massachusetts  (being  unmarried),  for  con.sidera-  1913, 369. 

tion  paid,  grant  to  Co-operative  Bank,  situated  in  County, 

Massachusetts,  with  mortgage  covenants,  to  secure  the  payment  of 
dollars,  and  interest  and  fines  as  provided  in  note  of 

even  date,  the  land  in  (description  and  encumbrances,  if  any) . 

hereby  transfer  and  pledge  to  the  said  mortgagee 
shares  in  the  series  of  its  capital  stock  as  collateral  security  for  the  per- 

formance of  the  conditions  of  this  mortgage,  and  said  note  upon 

which  shares  said  sum  of  dollars  has  been  advanced  to 

by  the  mortgagee.    The  monthly  pajTnents  under  this  mortgage  are 
dollars.    In  the  event  of  an  assignment  of  this  mortgage,  interest  on  the  unpaid 
balance  of  the  principal  shall  be  at  the  rate  of  per  cent  per  annum. 

This  mortgage  is  upon  the  statutory  co-operative  bank  mortgage  condition,  for 
any  breach  of  which  the  mortgagee  shall  have  the  statutory  co-operative  bank 
power  of  sale. 

I,  ,  wife  of  said  mortgagor,  release  to  the  mortgagee  all  rights  of  dower 

and  homestead  and  other  interests  in  the  mortgaged  premises. 

Witness  hand  and  seal  this  day  of 

(Seal.) 

(Here  add  acknowledgment.) 


2094  ALIENATION   OF   L.\ND.  [ChAP.    183. 


(7)     Extension  of  Mortgage. 

1912, 502,  §  7.    holder    of    a    mortgage    by  to  dated  re- 

corded with  Deeds,  book  ,  page  , 

and  owner  of  the  equity  of  redemption  of  the  mortgaged  premises, 

agree  each  for  sel  ,  heirs,  representatives  and  assigns, 

that  the  time  provided  in  said  mortgage  for  pajTnent  of  the  principal  sum  now 
secured  thereby,  namely  dollars,  is  hereby  extended  to  , 

and  the  rate  of  interest  hereafter  shall  be  per  cent  per  annum,  and 

said  owner  agrees  to  perform  and  obser\'e  the  condition  and  covenants  of  said 
mortgage  as  so  extended,  and  to  pay  the  principal  and  interest  secured  thereby 
W'hen  due  hereunder. 

Witness  hand  and  seal  this  dav  of 

(Seal.) 

(Here  add  acknowledgment.) 

(8)     Partial  Release  of  Mortgage. 

1912,502,  §8.    the  holder  of  a  mortgage  by  to  dated  re- 

corded with  Deeds,  book  ,  page  ,  for  con- 

sideration paid,  release  to  all  interest  acquired  under  said  mortgage 

in  the  following  described  portion  of  the  mortgaged  premises: 

(description) 

Witness  hand  and  seal  this  day  of 


(Here  add  acknowledgment.) 

(9)     Assignment  of  Mortgage. 


(Seal.) 


1912, 502,  §9.    holder  of   a  mortgage  from  to  dated  re- 

corded with  Deeds,  book  ,  page  ,   assign 

said  mortgage  and  the  note  and  claim  secured  thereby  to 
Witness  hand  and  seal  this  daj'  of 


(Here  add  acknowledgment ) 

(10)     Discharge  of  Mortgage. 


(Seal.) 


1912,  502,  §  10.  holder  of  a  mortgage  from  to  dated 

corded    with  Deeds,  book  ,    page 

acknowledge  satisfaction  of  the  same. 

Witness  hand  and  seal  this  day  of 


(Here  add  acknowledgment.) 

(11)     Foreclosure  Deed  under  Power  of  Sale  in  Mortgage. 


(Seal.) 


1912,  502,  §  11.  holder  of  a  mortgage  from  to  dated  re- 

corded with  Deeds,  book  ,  page  ,  by  the 

power  conferred  by  said  mortgage  and  everj^  other  power,  for  dol- 

lars paid,  grant  to  the  premises  conveyed  by  said  mortgage. 

Witness  hand  and  seal  this  day  of 

(Seal.) 

(Here  add  acknowledgment.) 

(12)     Affidavit  of  Sale  wider  Poicer  of  Sale  in  Mortgage. 

named  in  the  foregoing  deed,  make  oath  and  say  that 
1912, 502,  §  12.  the  principal  interest  obligation  men- 

tioned in  the  mortgage  above  referred  to  was  not  paid  or  tendered  or  performed 
when  due  or  prior  to  the  sale,  and  that  I  published  on  the  day  of 


Chap.  183.]  alienation  of  l.and.  2095 

19     ,  in  the  ,  a  newspaper  published  or  by  its  title 

page  purporting  to  be  published  in  aforesaid  and  having  a  circula- 

tion therein,  a  notice  of  which  the  following  is  a  true  copy: 

(Insert  advertisement.) 

Pursuant  to  said  notice  at  the  time  and  place  therein  appointed,  I  sold  the 
mortgaged  premises  at  public  auction  by  ,  an  auc- 

tioneer, to  ,  above  named,  for  dollars,  bid  by  him, 

being  the  highest  bid  made  therefor  at  said  auction. 

Sworn  to  by  the  said  19     ,  before  me 

FORMS   OF  ACKNOWLEDGMENTS,  ETC. 

(13)     Acknowledgment  of  Individual  acting  in  his  Own  Right. 

(Caption  specifying  the  state  and  place  where  the  acknowledgment  is  taken.) 

On  this  day  of  19     ,  before  me  personally  appeared  ^^^'  ^^y'  |  \g 

A  B  (or  A  B  and  C  D),  to  me  known  to  be  the  person  (or  persons)  described  in     '    '   "  ' 
and  who  executed  the  foregoing  instrument,  and  acknowledged  that  he  (or  thej') 
executed  the  same  as  his  (or  their)  free  act  and  deed. 

(Signature  and  title  of  officer  taking  acknowledgment.     Seal,  if  required.) 

(14)     Acknowledgment  of  Individual  acting  by  Attorney. 

(Caption  specifying  the  state  and  place  where  the  acknowledgment  is  taken.) 

On  this  day  of  19     ,  before  me  personally  appeared  ^^f-  ^53. 1 1. 

A  B,  to  me  known  to  be  the  person  who  executed  the  foregoing  in.strument  in     •■-'•» 
behalf  of  C  D,  and  acknowledged  that  he  executed  the  same  as  the  free  act  and 
deed  of  said  C  D. 

(Signature  and  title  of  officer  taking  acknowledgment.     Seal,  if  required.) 

(15)     Acknowledgment  of  a  Corporation  or  Joint  Stock  Association. 

(Caption  specifying  the  state  and  place  where  the  acknowledgment  is  taken.) 

On  this  day  of  19     ,  before  me  appeared  A  B,  to  me  1S94, 253,  §  1. 

personally  known,  who,  being  by  me  duly  sworn  (or  affirmed),  did  say  that  he  is  ^-  ^-  ^-'^'  ^  ^^■ 
the  president  (or  other  officer  or  agent  of  the  corporation  or  association)  of  (de- 
scribing the  corporation  or  association)  and  that  the  seal  affixed  to  said  instru- 
ment is  the  corporate  seal  of  said  corporation  (or  association),  and  that  said 
instrument  was  signed  and  sealed  in  behalf  of  said  corporation  (or  association)  by 
authority  of  its  board  of  directors  (or  trustees),  and  said  A  B  acknowledged  said 
instrument  to  be  the  free  act  and  deed  of  said  corporation  (or  association) . 

(Signature  and  title  of  officer  taking  acknowledgment.     Seal,  if  required.) 

[If  the  corporation  or  association  has  no  corporate  seal,  the  words  "  the  seal  affixed  to  said  instrument 
is  the  corporate  seal  of  said  corporation  (or  association),  and  that"  shall  lie  omitted,  and  at  the  end  of 
the  affidavit  shall  be  added  the  words  "  and  that  said  corporation  (or  association)  has  no  corporate  seal  ".] 

(16)     Certificate  of  Authority  of  Officer  taking  Acknowledgment. 

(Caption  specifying  the  state,  county  or  place  where  the  authentication  is  made.) 

I,  ,  clerk  of  the  in  and  for  said  county,  which  court  is  is94, 253,  §  5. 

a  court  of  record  having  a  seal  (or,  I,  ,  the  secretary  of  state  of  such  K.  L-  i27,  §  21. 

state  or  territory),  do  hereby  certify  that  ,  by  and  before  whom  the 

foregoing  acknowledgment  (or  proof)  was  taken,  was,  at  the  time  of  taking  the 
same,  a  notary  public  (or  other  officer)  residing  (or  authorized  to  act)  in  said 
county,  and  was  duly  authorized  by  the  laws  of  said  state  (territory  or  district) 
to  take  and  certify  acknowledgments  or  proofs  of  deeds  of  land  in  said  state  (ter- 
ritory or  district),  and  further  that  I  am  well  acquainted  with  the  handwriting  of 
said  ,  and  that  I  verily  believe  that  the  signature  to  said  certificate 

of  acknowledgment  (or  proof)  is  genuine.  In  testimony  whereof,  I  have  hereunto 
set  my  hand  and  affixed  the  seal  of  the  said  court  (or  state)  this  day 

of  ,  19    . 

(Signature  and  title  of  officer  certifying.     Seal.) 

REFERENCE. 

§  30.  Acknowledgment  of  deeds,  etc.,  by  persons  in  amiy  and  navj'  during  world 
war,  1917,  342,  §§  14-16. 


2096 


GENERAL   PROYISIOXS   EEL-^TRE   TO   REAL  PROPERTY.      [Ch.VP.    184. 


CHAPTER    184. 

GENERAL  PROVISIONS  RELATIVE   TO   REAL  PROPERTY. 


Sect. 

1.  Aliens  may  take  and  convey  real  prop- 

erty. 

2.  Contingent  estates  to  be  alienable. 
Limitation  of  taking  effect  of  contin- 
gent remainders. 

Estates  tail  liable  for  debts,  etc. 

Conveyances,  etc.,  for  life,  w-ith  re- 
mainder to  heirs. 

Effect  of  words  "die  without  issue," 
etc. 

7.  Conveyances   and    de\'ises    to    two    or 

more  persons. 

8.  Conveyances   to   grantor  and   another 

jointly. 

9.  Deed  of  tenant  for  Ufe  or  years. 

10.  Expectant  estate  not  to  be  defeated  by 

act  of  owner  of  precedent  estate,  etc. 

11.  Effect  of  two  preceding  sections. 


3. 


6. 


Sect. 

12.  Removal  of  fixtures  by  life  tenant. 
Conditional  sales  of  fixtures. 
Pro^-ision    for   sale   of   standing   wood 

during  life  estate,  etc. 
Proceedings    affecting    title    to    realty 

binding  on  third  parties,  when. 
16.  Record  of  certificate  of  final  disposition 

of  proceedings. 
Judgments  affecting  land. 
Forcible  entry  forbidden. 
Entry  for  breach  of  condition. 
Effect  of  descent  or  discontinuance. 
Grantor  to  make  encumbrances  known 

to  grantee. 
Grantor  liable  for  damages  in  removing 

apparent  encumbrance. 
Restrictions  or  conditions,  etc.,  on  real 

property. 


1.3. 
14. 


1.5. 


23 


Aliens  may 
take  and 
convey  real 
property. 
1852,  29;  86. 


Section  1.     Aliens  may  take,  hold,  transmit  and  convey  real  prop-  1 

erty,  and  no  title  to  real  property  shall  be  invalid  on  account  of  the  2 

alienage  of  a  former  owner.  g.  s.  90,  §  .ss.  3 

p.  S.  126,  §  1.  R.  L.  134,  §  1.  15  Pick.  345.  100  JIass.  527. 


Contingent 
estate-s  to  be 
alienable. 
R.  S.  60.  §  30. 
G.  S.  90.  §  37. 
P.  S.  126,  §  2. 
R.  L.  134.  §  2. 
7  Met.  363. 
3  Gray,  398. 


Section  2.  If  a  contingent  remainder,  executorj'^  devise  or  other 
estate  in  expectancy  is  so  granted  or  limited  to  a  person  that  in  case  of 
his  death  before  the  happening  of  the  contingency  the  estate  would 
descend  to  his  heirs  in  fee  simple,  he  may,  before  the  happening  of  the 
contingency,  sell,  assign  or  devise  the  land  subject  to  the  contingency. 


S  .\llen.  425. 
12  .\!len.  345. 
101  Mass.  336. 
109  Mass.  513. 


121  Mass.  198. 

122  Mass.  535. 

123  Ma.ss.  356. 
126  Mass.  230. 


132  Mass.  205. 
139  Mass.  262. 
150  Mass.  168. 
161  Mass.  506. 


1S2  Mass.  106. 
200  Mass.  498. 


Limitation  of 
tsking  effect 
of  contingent 
remainders. 
1916,  108, 
§5  1.2. 
199  Mass.  552. 


Section  3.     A  contingent  remainder  shall  take  effect,  notwithstand-  1 

ing  any  determination  of  the  particular  estate,  in  the  same  manner  in  2 

which  it  would  have  taken  effect  if  it  had  been  an  executory  devise  or  3 

a  springing  or  shifting  use,  and  shall,  as  well  as  such  limitations,  be  4 

subject  to  the  rule  respecting  remoteness  known  as  the  rule  against  per-  5 

petuities,  exclusive  of  any  other  supposed  rule  respecting  limitations  6 

to  successive  generations  or  double  possibilities;    but  this  section,  ex-  7 

cept  so  far  as  declaratory  of  existing  law,  shall  apply  only  to  instru-  8 

ments  executed  on  or  after  April  sixth,  nineteen  hundred  and  sixteen,  9 

and  to  wills  and  codicils  revived  or  confirmed  by  a  will  or  codicil  exe-  10 

cuted  on  or  after  said  date.  11 


Estates  tail 
liable  for 
debts,  etc. 
1791,  60,  §  2. 
R.  S.  60,  §  29. 
G.  S.  90,  §  36. 
P.  S.  126,  §  3. 
R.  L.  134,  §  3. 
1915,  23. 


Section  4.     Land  held  in  fee  tail,  except  an  estate  tail  in  remainder,  1 

shall  be  liable  for  the  debts  of  the  tenant  in  tail,  both  in  his  lifetime  2 

and  after  his  decease,  as  if  held  in  fee  simple;  and  if  taken  on  execution  3 

or  sold   by  executors,  administrators,   guardians   or  conservators,   the  4 

creditor  or  purchaser  shall  hold  such  land  in  fee  simple.  5 

4  Mas.s.  189.  3  Gray,  162. 


Chap.  1S4.]    general  provisions  relative  to  real  property.  2097 

1  Section  5.     If  land  is  granted  or  devised  to  a  person  and  after  his  Conveyances, 

2  death  to  his  heirs  in  fee,  however  the  grant  or  devise  is  expressed,  an  with  remainder 

3  estate  for  life  only  shall  vest  in  such  first  taker,  and  a  remainder  in  fee  iVo.'r.  219. 

4  simple  in  his  heirs.  i79i,  eo,  §  3.  r.  s.  .59,  §  9.  g.  s.  sq,  §  12. 

p.  S.  12fi.  §  4.  7  Met.  169.  10  Gray,  568.  157  Mass.  S2. 

R.  L.  134,  §  4.  13  Met.  486.  99  Mass.  454.  103  Mass.  69. 

9  Pick.  136.  4  Grav,  353.  131  Mass.  321.  214  Mass.  172. 

I  Met.  281.  12  Gray,  49.  149  Mass.  200. 

1  Section  6.     In  a  limitation  of  real  or  personal  property  by  deed,  will  -ffe'^wUhour'' 

2  or  other  instrument  in  writing,  executed  after  April  thirtieth,  eighteen  '{"Igl'  273°' 

.3  hundred  and  eighty-eight,  the  words  "die  without  issue",  or  "die  with-  JV,^;,'^"*' lA 

4  out  leavmg  issue   ,  or     have  no  issue   ,  or     die  without  heirs  of  the  i»3  Mass.  los. 

5  body",  or  other  words  importing  either  a  want  or  failure  of  issue  of  201  Mass! 495! 

6  any  person  in  his  lifetime  or  at  the  time  of  his  death,  or  an  indefinite   °' 

7  failure  of  his  issue,  shall,  unless  a  contrary  intention  clearly  appears 

8  by  the  instrument  creating  such  limitation,  mean  a  want  or  failure  of 

9  issue  in  the  lifetime  or  at  the  time  of  the  death  of  such  person,  and  not 
10  an  indefinite  failure  of  his  issue. 

1  Section  7.     A  conveyance  or  devise  of  land  to  two  or  more  persons  Conveyances 

2  or  to  husband  and  wife,  except  a  mortgage  or  a  devise  or  conveyance  two  ormore  ° 

3  in  trust,  shall  create  an  estate  in  common  and  not  in  joint  tenancy,  1735°  m.  §  4. 

4  unless  it  is  expressed  in  such  conveyance  or  devise  that  the  grantees  or  f^  ^-  ^^'  ^^  ^°- 

5  devisees  shall  take  jointly,  or  as  joint  tenants,  or  in  joint  tenancy,  or  to  ^'^  s.  89,  §§  13, 

6  them  and  the  survivor  of  them,  or  unless  it  manifestly  appears  from  the  Pj^i.^^^ 

7  tenor  of  the  instrument  that  it  was  intended  to  create  an  estate  in  joint  1885, 237. 

8  tenancy.  R-  L.  134,  §  e.  5  Mass.  521.  7  Mass.  131. 

8  Mass.  274.  4  Gush.  111.  2  Allen,  115.  154  Mass.  537. 

II  Mass.  469.  5  Gush.  153.  13  Allen,  213.  158  Mass.  11. 
16  Mass.  59.  6  Gray.  428.  108  Mass.  254.  182  Mass.  363. 
16  Pick.  491.  8  Grav,  1.54.  110  Mass.  273,  396.  213  Mass.  50. 
22  Pick.  656.  16  Gray,  308.  141  Mass.  219.  216  Mass.  405. 

1  Section  8.     Real    estate,    including   any   interest   therein,    may   be  conveyances 

2  transferred  by  a  person  to  himself  jointly  with  another  person  in  the  inot'her'joiStb'. 

3  same  manner  in  which  it  might  be  transferred  by  him  to  another  person.  '^'*'  ^^• 

1  Section  9.     A  conveyance  by  a  tenant  for  life  or  years  which  pur-  Deed  of  tenant 

2  ports  to  grant  a  greater  estate  than  he  possesses  or  can  lawfully  convey  yrars."  ""^ 

3  shall  not  work  a  forfeiture  of  his  estate,  but  shall  pass  to  the  grantee  all  the  q\  f;  It',  §  t'. 

4  estate  which  such  tenant  can  lawfully  convey.  R.  l.  134,  §  7.  ^-  s- 126,  §  7. 

1  Section  10.     No  expectant  estate  shall  be  defeated  or  barred  by  an  Expectant 

2  alienation  or  other  act  of  the  owner  of  the  precedent  estate,  nor  by  the  be'de^fe°°ed  by 

3  destruction  of  such  precedent  estate  by  disseisin,  forfeiture,  surrender  of  precedent 

4  or  merger.  R.  s.  59,  §  7.  estate,  etc. 

G.  S.  89,  §  10.  p.  S.  126,  §  8.  R.  L.  134,  §  8.  171  Mass.  504. 

1  Section  11.     The    two    preceding    sections   shall    not   prevent   the  Effect  of  two 

2  barring  of  estates  tail  in  the  manner  provided  in  chapter  one  hundred  ^eTt'ions!^ 

3  and  eighty-three,  nor  an  expectant  estate  from  being  defeated  in  a  §!  s! m.  |  ii. 

4  manner  provided  for  or  authorized  by  the  person  creating  such  estate.      ^-  f;  ^i^i  I  g 

1  Section  12.     Fixtures  annexed  to  the  freehold  by  a  life  tenant  or  by  Removal  ot 

2  his  assigns  may  be  removed  during  the  continuance  of  the  life  estate  ufe'tenanf. 

3  or  within  a  reasonable  time  thereafter;   and  in  determining  what  are  p*s°'i26'§§ lo 

4  fixtures,  the  common  law  rules  prevailing  between  a  landlord  and  a  l}-,  ,,,  ,  ,„ 

*  "^  R.  J..  134,  8  lU. 


2098 


GENERAL  PROVISIONS  RELAXm;  TO  REAL  PROPERTY.   [ChAP.  184. 


tenant  for  years  shall  govern.    This  section  shall  not  affect  the  right  of  5 

the  owner  of  land  to  make  a  different  provision  by  will  or  otherwise  as  6 

to  the  removal  of  fixtures,  nor  impair  or  affect  the  provisions  of  any  7 

will  or  other  instrument  by  which  an  estate  for  life  in  land  is  created  8 

or  limited.  9 


Conditional 
sales  of 
fixtures. 
1912,  271. 

1918,  257, 
§  .382. 

1919,  5. 

1920,  2. 

228  Mass.  205. 


Section  1.3.     No  conditional   sale  of  heating  apparatus,   plumbing  1 

goods,  ranges  or  other  articles  of  personal  property,  which  are  after-  2 

ward  wrought  into  or  attached  to  real  estate,  whether  they  are  fixtures  3 

at  common  law  or  not,  shall  be  valid  as  against  any  mortgagee,  pur-  4 

chaser  or  grantee  of  such  real  estate,  unless  not  later  than  ten  days  5 

after  the  delivery  thereon  of  such  personal  property  a  notice  such  as  is  6 

herein  prescribed  is  recorded  in  the  registry  of  deeds  for  the  county  or  7 

district  where  the  real  estate  lies.     The  notice  shall  be  signed  by  the  8 

vendor  or  a  person  claiming  under  him  and  shall  contain  the  names  9 

of  the  contracting  parties,  the  name  of  the  record  owner  of  the  real  10 

estate  at  the  time  of  recording  the  notice,  the  fact  that  it  is  agreed  that  11 

title  to  such  personal  property  shall  remain  in  the  vendor  until  the  12 

purchase  price  is  paid,  the  terms  of  payment  and  the  amount  of  such  13 

purchase  price  remaining  unpaid,  and  descriptions,  sufficiently  accu-  14 

rate  for  identification,  of  such  real  estate  and  the  personal  property  15 

delivered  or  to  be  delivered  thereon.     If  the  sale  is  of  several  articles  16 

for  a  lump  sum  greater  than  the  \-alue  of  the  personal  property  de-  17 

livered  or  to  be  delivered  on  the  real  estate,  the  notice  shall  also  state  18 

such  lump  sum  and  such  value.    The  notice  shall  be  indexed  under  the  19 

name  of  such  record  owner,  and  a  release  of  title  in  any  such  article  of  20 

personal  property  may  be  recorded  at  any  time.  21 


Provision  for 

sale  of  standing 

wood  during 

life  estate,  etc. 

1818,  96. 

R.  S.  60,  |§  33- 

37. 

G.S.  90,  §§39- 

43. 

1869,  249. 

P.  S.  126.  §  12. 

R.  L.  134,  §  11. 

3  0p.  A.G.  531. 


Proceedings 
affecting  title 
to  realty  bind- 
ing on  third 
parties,  when. 
1877,  229, 
§§  1,3. 


Section  14.  If  the  supreme  judicial  court  or  the  probate  court  for  1 
the  county  where  the  land  lies  finds  that  wood  or  timber,  standing  on  2 
land  the  use  and  improvement  of  which  belongs,  for  life  or  otherwise,  3 
to  a  person  other  than  the  owner  of  the  fee  therein,  has  ceased  to  im-  4 
prove  by  growth,  or  ought  for  any  cause  to  be  cut,  it  may  appoint  a  5 
trustee  to  sell  and  convey  said  wood  or  timber  to  be  cut  and  carried  6 
away  within  a  time  to  be  limited  in  the  order  of  sale,  to  hold  and  invest  7 
the  proceeds  thereof  after  paying  therefrom  the  expenses  of  such  sale,  8 
to  pay  over  the  income,  above  the  taxes  and  other  expenses  of  the  9 
trust,  to  the  person  entitled  to  such  use  and  improvement  M'hile  his  10 
right  thereto  continues,  and  thereafter  to  pay  the  principal  of  the  fund  11 
to  the  owner  of  such  land.  If  wood  or  timber  has  been  cut  as  aforesaid,  12 
no  more  thereof  shall  be  cut  on  such  land  by  the  person  entitled  to  such  13 
use  and  improvement  without  permission  from  said  court.  Such  sale,  if  14 
authorized  by  a  probate  court,  shall  be  made  in  the  manner  provided  by  15 
law  for  the  sale  of  real  property  by  guardians;  and  if  such  sale  is  au-  16 
thorized  by  the  supreme  judicial  court,  the  trustees  shall  give  to  such  17 
person  as  the  court  shall  designate  a  bond,  for  the  use  and  benefit  of  the  18 
persons  interested  in  the  proceeds  of  the  sale,  conditioned  on  the  faith-  19 
ful  discharge  of  the  trust;  and  the  court  may  remove  the  trustee,  and  20 
appoint  another  in  his  stead.  21 


Section  15.  A  writ  of  entry  or  other  proceeding,  either  at  law  or  in 
equity,  which  affects  the  title  to  real  property  or  the  use  and  occupation 
thereof  or  the  buildings  thereon,  shall  not  have  any  effect  except  against 
the  parties  thereto,  their  heirs  and  devisees  and  persons  having  actual 


Chap.  18-i.]     general  provisions  relatr^e  to  real  property.  2099 

5  notice  thereof,  until  a  memorandum  containing  the  names  of  the  parties  p  s..  126,  §  13. 
C  to  such  proceeding,  the  court  in  which  it  is  pending,  the  date  of  the  r. l.  134,  §  12. 

7  WTit  or  other  commencement  thereof,  the  name  of  the  town  where  the  ^^^  ^*^'  ^*^" 

8  real  property  liable  to  be  affected  thereby  lies  and  a  description  of  such 

9  real  property  sufficiently  accurate  for  identification  is  recorded  in  the 

10  registry  of  deeds  for  the  county  or  district  wliere  such  real  property 

11  lies;  but  this  section  shall  not  apply  to  attachments,  levies  of  execution 

12  or  proceedings  in  the  probate  courts. 

1  Section  16.     At  any  time  after  final  judgment  or  a  decree  in  favor  of  J^rtifica°i  of 

2  the  defendant,  or  after  the  discontinuance,  dismissal  or  other  final  dis-  6?'''  disposition 

^..,  f,  .  i*c  T  '  T   ^^  proceedings. 

3  position,  by  consent  of  parties  or  otherwise,  of  a  proceeding  mentioned  is??.  229  §  2. 

4  in  the  preceding  section,  or  in  case  of  the  non-entry  of  the  writ,  petition  R.  l.  la-i,  5  ij. 

5  or  bill  of  complaint,  the  clerk  of  the  court  wherein  such  judgment,  decree, 

6  discontinuance,  dismissal  or  other  final  disposition  is  recorded,  or  out 

7  of  which  such  writ  issued  or  to  which  such  petition  or  bill  of  complaint 

8  was  addressed,  shall  upon  demand  give  a  certificate  of  the  fact  of  such 

9  judgment,  decree,  discontinuance,  dismissal,  final  disposal  or  non-entry, 

10  and  such  certificate  may  be  recorded  in  the  registry  in  which  the  original 

11  record  mentioned  in  said  section  was  made. 

1  Section  17.     A  judgment  or  decree,  at  law  or  in  equity,  rendered  affe^Sfgilnd. 

2  after  June  eighth,  eighteen  hundred  and  ninety-two,  affecting  the  title  ^^^'  ^|9-    ^^ 

3  to  real  property,  shall  not  have  any  effect  except  against  the  parties 

4  thereto,  their  heirs  and  devisees  and  persons  having  actual  notice  thereof, 

5  unless  a  certified  copy  of  the  record  thereof  has  been  recorded  in  the 

6  registry  of  deeds  for  the  county  or  district  where  the  land  lies,  with  a 

7  memorandum  of  the  town  where  the  land  lies  and  a  description  thereof 

8  sufficiently  accurate  for  identification  if  the  record  of  the  judgment  or 

9  decree  does  not  give  those  particulars.    If  a  notice  of  the  pendency  of 

10  the  action  has  been  duly  recorded  in  the  registry  of  deeds,  the  record 

11  of  the  judgment  or  decree  may  be  made  within  sixty  days  after  its 

12  rendition,  and  the  entry  of  an  ordinary  attachment  of  real  property  in 

13  the  registry  of  deeds  shall  be  considered  notice  of  the  pendency  of  the 

14  action. 

1  Section  18.     No  person  shall  make  an  entry  into  land  or  tenements  Forcible  entry 

2  except  in  cases  where  his  entry  is  allowed  by  law,  and  in  such  cases  he  i7oo-i,''ii,  §  1. 

3  shall  not  enter  by  force,  but  in  a  peaceable  manner. 

1784,  8,  §  1.  G.  S.  137,  §  1.  5  Met.  343.  121  Mass.  309. 

R.  S.  104.  §  1.  P.  S.  120,  §  15.  4  Gush.  141.  170  Mass.  29. 

1851,  233,  §  76.  R.  L.  134,  §  15.  1  Allen,  213. 

1  Section  19.     If  real  property  has  been  conveyed  by  deed  on  a  con-  Entry  for 

2  dition  therein  expressed,  which  is  not  a  mortgage,  the  grantor,  his  heirs  condition. 

3  and  devisees  upon  breach  of  such  condition  may  enter  on  the  granted  r.°l'.  ^34,  §  ig. 

4  premises  in  order  to  revest  the  title;    and  a  certificate  of  such  entry,  j^ils.^*"' 

5  made  and  sworn  to  before  any  officer  duly  qualified  to  administer  oaths  59.^0'  2 

6  by  two  competent  witnesses  and  recorded  within  thirty  days  after  such 

7  entry  in  the  registry  of  deeds  for  the  county  or  district  where  the  land 

8  lies,  or  a  duly  certified  copy  of  the  record  of  such  certificate,  shall,  after 

9  the  expiration  of  three  years  from  such  entry,  be  prima  facie  evidence 

10  of  such  breach  and  entry.     If  a  grantor,  his  heirs  or  devisees  made 

1 1  such  entry  and  certificate  and  filed  the  certificate  as  herein  required  prior 


2100 


THE    L.^VKD    COURT   AND   REGISTRATION   OF  TITLE.  [Ch,\P.    185. 


to  June  ninth,  eighteen  hundred  and  ninety-eight,  said  certificate  or  a  12 
duly  certified  copy  of  the  record  thereof  shall  have  like  force  and  efi^ect.  13 

de^Mnror  Section  20.     No  descent  or  discontinuance  shall  take  away  or  defeat     1 

discontinuance,  any  right  of  entry  or  of  action  for  the  recovery  of  real  property.  2 

R.  S.  101,  §  5;  119,  §  13.  P.  S.  120,  §  16. 

G.  S.  134,  §  4 ;  154,  I  13.  R.  L.  134,  §  17. 


mlke'en-'°  Section  21.     If  real  property  upon  which  any  encumbrance  exists  is 

kno'wn''to''^  convcycd  by  deed  or  mortgage,  the  grantor,  in  whatever  capacity  he 
fsM^rr?  1  ™*y  ^^'*''  shall  before  the  consideration  is  paid,  by  exception  in  the 
G.  .s.'so,  I  i(i.'  deed  or  otherwise,  make  known  to  the  grantee  the  existence  and  nature 
18.  of  such  prior  encumbrance  so  far  as  he  has  knowledge  thereof. 

Section  22.  Whoever  conveys  real  property  by  a  deed  or  mortgage 
which  contains  a  covenant  that  it  is  free  from  all  encumbrances  shall,  if 
it  appears  by  a  public  record  that  an  actual  or  apparent  encumbrance, 
known  or  unlvnown  to  him,  exists  thereon,  be  liable  in  an  action  of  con- 
tract to  the  grantee,  his  heirs,  executors,  administrators,  successors  or 
assigns,  for  all  damages  sustained  in  removing  the  same. 


p.  S.  126, 

§  17. 

R.  L.  134 

§18. 

Grantor  liable 

for  damages  in 

removing  ap- 

parent en- 

cumbrance. 

1855.  177, 

§3. 

G.  S.  89,  §  17. 

P.  S.  126, 

§  IS. 

R.  L.  134 

§  19. 

136  Mass 

504. 

138  Mass 

439. 

Restrictions  or 

conditions 

,  etc.. 

on  real 

property. 

1887,  418. 

R.  L.  134 

5  20. 

183  Mass 

202. 

185  Mass 

589. 

206  Mass 

199 

209  Mbss. 

217.' 

234  Mass. 

516, 

1-18  Mass.  102. 


151  Mass.  237. 


204  Mass.  563. 


Section  2.3.  Conditions  or  restrictions,  unlimited  as  to  time,  by 
which  the  title  or  use  of  real  property  is  afl^ected,  shall  be  limited  to  the 
term  of  thirty  years  after  the  date  of  the  deed  or  other  instrument  or 
the  date  of  the  probate  of  the  will  creating  them,  except  in  cases  of 
gifts  or  devises  for  public,  charitable  or  religious  purposes.  This  section 
shall  not  apply  to  conditions  or  restrictions  existing  on  July  sixteenth, 
eighteen  hundred  and  eighty-seven,  or  to  those  contained  in  a  deed,  gift 
or  grant  of  the  commonwealth. 


REFERENCES. 

Husband  and  wife  may  convey  one  to  the  other.  Chap.  209,  §  3. 

Payment  of  legacy  tax  on  estates  where  there  is  an  intervening  estate  for  life  or 
years.  Chap.  6,5,  §§  14, 15. 

Short  forms  for  deeds  and  mortgages.  Chap.  183,  §§  8-28,  and  appendix. 

Sale  of  real  estate  within  the  commonwealth  by  certain  non-resident  married 
women.  Chap.  209,  §  31, 

Tax  titles,  Chap.  60,  §  64  et  seq. 

§  13.  Provision  relative  to  recording  notices,  etc,  on  registered  land,  Chap. 
185,  §  78. 


CHAPTER     185. 

THE  LAND   COURT  AND   REGISTRATION   OF   TITLE   TO   LAND. 


Sect. 

.Sect. 

THE    LAND    COURT. 

7.  Duties  and  powers  of  recorder. 

1.  Land  court,  jurisdiction,  sittings,  rules, 

8.  Recorder  to  act  in  any  county. 

forms,  etc. 

9.  Use  of  facsimile  signature. 

2.  Judges. 

10.  Register  of  deeds,  duties. 

3.  iSessions. 

11.  Oath  and  bond  of  recorder. 

4.  Citations. 

12.  Examiners  of  title. 

5.  Associate  judge  to  act,  when. 

13.  Court  officers. 

6.  Recorder. 

14.  Salaries  and  expenses  of  judges,  etc 

CaiP.    185.]  THE   L.USrD   COURT   AND   REGISTRATION   OF  TITLE. 


2101 


Sect. 

procedure. 

15.  Issues  to  superior  court  and   remedies 

in  supreme  judicial  court. 

16.  Appeal  in  certain  cases. 

17.  Certification  of  verdict. 

18.  Certification  of  decision. 

19.  Failure  to  prosecute  appeal. 

20.  Enforcement  of  decrees. 

21.  Costs. 

22.  Filing  of  writs  and  pleadings. 

23.  Copies   of   final   decrees   to   be   trans- 

mitted to  assistant  recorder. 

24.  Order  of  reference  to  examiner. 

25.  General  law  and  equity  powers  of  court. 

ORIGINAL    REGISTRATION. 

26.  Petition  for  registration. 

27.  Record  of  memorandum  of  petition. 

28.  Form  and  contents  of  petition. 

29.  Petition  as  to  land  bounding  on  way. 

30.  Petition  subject  to  mortgage  or  lease. 

31.  Petition  may  include  several  parcels. 

32.  Amendments  to  petition. 

33.  Filing  of  plans  and  muniments. 

34.  Additional  facts. 

35.  Agent  for  non-resident. 

36.  Record  of  transfers  pending  petition, 

etc. 

37.  Reference  to  examiner. 

38.  Publication  of  notice  of  petition. 

39.  Return  day  of  notice. 

40.  Guardian  ad  litem. 

41.  Answer. 

42.  Order  of  general  default.     Effect. 

43.  Hearing.     Reference  to  master. 

44.  Dismissal,  etc.,  of  petition. 

45.  Decree  of   confirmation   and   registra- 

tion. 

46.  Tenure  of  holder  of  certificate  of  title. 

47.  Contents  of  decree. 

48.  Transcription  of  decree  in  registry. 

49.  Transcription,  certificate  effective  from 

date  of. 

50.  Duplicate  certificate  of  estates  in  com- 

mon. 

51.  Surrender  of  certificate,  issue  of  sub- 

stitute. 

52.  Certificate  an  agreement  running  with 

land. 

53.  Prescription,  etc.,  not  to  affect  regis- 

tered land. 

54.  Evidence,  what  to  be. 

55.  Contents  of  certificate. 

56.  Indexes,  record  books,  etc. 

VOLUNTARY     DEALING     WITH     LAND     AFTER 
ORIGINAL    REGISTRATION. 

57.  Owner  of  registered  land  may  convey, 

etc. 

Notice  of  encumbrances. 

Estate  less  than  fee  simple,  how  regis- 
tered. 

Reference  of  doubtful  questions. 


58, 
59, 


60. 


61.  Grantee's  residence,  etc.,  to  be  stated. 


Sect. 

62.  Presentation   of   owner's  duplicate   on 

entry  of  new  certificate,  etc. 

63.  Entry  book.     Duplicates  and  certified 

copies. 

CONVET.\NCE    IN   FEE. 

64.  Conveyance  in  fee  of  registered  lands. 

65.  Deed  of  portion  of  registered  fee. 

66.  Statement  of  encumbrances. 

MORTGAGES. 

67.  Mortgage  of  registered  land. 

68.  Registration  of  mortgage. 

69.  Assignment,  etc.,  of  mortgage 

70.  Foreclosure  of  mortgage. 

LEASES. 

71.  Leases  of  registered  land. 

TRUSTS. 

72.  Trusts  in  registered  land. 

73.  Trusts  ^N-ith  power  of  sale,  etc.,  how  ex- 

pressed. 

74.  Proceedings    on    appointment   of    new 

trustee. 

75.  Implied,  etc.,  trusts,  how  established. 

76.  Petition  by  trustee  for  registration  of 

land. 

LEGAL     INCIDENTS     OF     REGISTERED     LAND. 

77.  Incidents  of  registered  land. 

ATTACHMENTS    AND    OTHER    LIENS. 

78.  Attachment  of  registered  land. 

79.  Memorandum  on  owner's  duplicate. 

80.  Dissolution,  etc.,  of  attachments,  etc. 

81.  Provisions  applicable  to  attachments  to 

apply. 

82.  Endorsement    of     plaintiff's     attorney 

upon  writ. 

83.  Registration  of  orders  of  court,  etc. 

84.  Enforcement  of  liens  on  registered  land. 

85.  Application  for  certificate  by  execution 

creditors,  etc. 

PENDING    SUITS,    JUDGMENTS,    DECREES    AND 
PARTITIONS. 

86.  Registration  of  notice  of  proceedings, 

etc.,  required  to  bind  third  parties. 

87.  Registration  of  certificate  of  judgment, 

etc. 

88.  Registration  of  judgment  for  demand- 

ant. 

89.  Registration  of  writ  of  seisin,  etc.,  and 

return. 

90.  Registration  of  certificate  of  judgment 

in  writ  of  dower,  etc. 

91.  Registration  of  decrees. 

92.  Proceedings  on  judgment  for  partition, 

etc. 

93.  Registration  of  prior  registered  mort- 

gage or  lease  with  decree  for  parti- 
tion. 


2102 


Sect. 

bankruptcy  and  insolvency. 

94.  Registration  of  notice  of  warrant  in 

insolvency. 

95.  Registration  of  discharge,  etc. 

BEVERTER. 

96.  New  certificate  upon  reverter  of  land. 

TRANSFER     BY     DESCENT     AND     DEVISE. 

97.  Transfer  by  descent  or  devise. 

98.  Executor'sright  to  sell,  etc.,  unaffected. 

ASSURANCE    FUND. 

99.  Assurance  fund. 

100.  Custody  and  investment  of  fund. 

101.  Action  for  compensation  from  fund. 

102.  Action  against  treasurer. 

103.  Judgments,  how  satisfied. 

104.  Proceedings  if  assurance  fund  is  in- 

sufficient. 

105.  Subrogation     of     commonwealth     to 

plaintiff's  rights,  when. 

106.  Assurance    fund,    application    of    in- 

come. 

107.  When  fund  not  liable.    Limit  of  com- 

pensation. 

108.  Limitation,  etc.,  of  actions. 

109.  Assessors'  valuation  to  be  evidence. 


THE   L\ND   COLTIT, 

Sect. 


[Chap.  185. 


POWERS    OF    ATTORNEY. 

110.  Powers  of  attorney. 

LOST   DUPLICATE    CERTIFICATES. 

111.  Lost  duplicate  certificates. 

ADVERSE    CLAI.MS. 

112.  Adverse  claims. 

SURRENDER     OF     DUPLICATE     CERTIFICATES. 

113.  Surrender  of  duplicate  certificates. 

AMENDMENT    AND    ALTERATION    OF    CERTIFI- 
CATES   OF    TITLE. 

114.  Amendment,  etc.,  of  certificates. 

PETITIONS,     MOTIONS    AND     NOTICES    AFTER 
REGISTRATION. 

115.  ruing  of  petitions  and  motions  after 

registration. 

116.  Ser\'ice  of  notice  after  registration. 

SECTIONAL   PLANS. 

117.  Sectional  plans  and  employment  of  as- 

sistance therefor. 

PENALTY. 

118.  Penalty  for  fraudulent  conveyance. 


Land  court, 
jurisdiction, 
sittings,  rules, 
forms,  etc. 


212  Mass.  135. 
215  Mass.  76. 


THE   LAND   COURT. 

Section  1.     The  land  court  shall  be  a  court  of  record, 
exclusive  original  jurisdiction  of  the  following  matters: 


It  shall  have     1 
2 


1898,  562,  §  2. 

1899,  131,  §  1. 

1900,  354,  §  1. 
R.  L.  128,  §  1. 

1904,  448,  §§  1,  5, 

1905,  249,  §§  1.  5. 

1906,  50,  §  1; 
344,  §  1. 


10. 


1910.  .MO,  §  3. 
1915,  112,  §  1; 
237,  §  3. 
1919,  262,  §  1. 
175  Mass.  68. 
192  Mass.  220. 
198  Mass.  172. 
201  Mass.  97. 


212  Mass.  547. 
215  Mass.  7fi. 
221  Mass.  372. 

224  Mass.  424. 

225  Mass.  217. 

226  Mass.  582. 
228  Mass.  242. 
179  U.  S.  405. 


(a)  Petitions  for  the  registration  of  title  to  land  and  easements  or 
rights  in  land  held  and  possessed  in  fee  simple  within  the  common- 
wealth, with  power  to  hear  and  determine  all  questions  arising  upon  such 
petitions,  and  such  other  questions  as  may  come  before  it  under  this 
chapter,  subject  to  all  rights  to  jury  trial  and  of  appeal  provided  by  law. 
The  proceedings  upon  such  petitions  shall  be  proceedings  in  rem  against 
the  land,  and  the  decrees  shall  operate  directly  on  the  land  and  vest  and 
establish  title  thereto. 

{b)  Proceedings  to  foreclose  tax  titles,  under  chapter  sixty. 

(c)  Writs  of  entry,  under  chapter  two  hundred  and  thirty-seven. 

(d)  Petitions  to  require  actions  to  try  title  to  real  estate,  under  sec- 
tions one  to  five,  inclusive,  of  chapter  two  hundred  and  forty. 

(e)  Petitions  to  determine  the  validity  of  encumbrances,  under  sec- 
tions eleven  to  fourteen,  inclusive,  of  chapter  two  hmidred  and  forty. 

(/)  Petitions  to  discharge  mortgages,  under  section  fifteen  of  chapter  17 
two  hundred  and  forty.  18 

(g)  Petitions  under  section  twenty-seven  of  chapter  two  hundred  19 
and  forty  to  establish  power  or  authority  to  transfer  an  interest  in  real  20 
estate.  21 


3 
4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 


Chap.  185.]  the  land  court.  2103 

22  (/j)  Petitions  to  determine  the  boundaries  of  flats,  under  section  nine- 

23  teen  of  chapter  two  hundred  and  forty. 

24  (0   Petitions  under  sections  sixteen  to  eighteen,  inchisive,  of  chapter 

25  two  hundred  and  forty  to  determine  whether  or  not  equitable  restric- 

26  tions  are  enforceable. 

27  (j)  Petitions  under  section  twelve  of  chapter  forty-two  to  determine 

28  county,  city,  town  or  district  boundaries. 

29  The  coiu-t  shall  hold  its  sittings  in  Boston,  but  may  adjourn  from  time  sittings. 

30  to  time  to  such  other  places  as  public  convenience  may  require.     In 

31  Suffolk  county,  the  board  of  aldermen  of  Boston,  and  in  other  counties, 

32  the  county  commissioners,  shall  provide  suitable  rooms  for  the  sittings 

33  of  said  court  in  the  same  building  with,  or  convenient  to,  the  probate 

34  court  or  the  registry  of  deeds,  and  shall  provide  necessary  books  and 

35  such  printed  blanks,  forms  and  stationery  as  the  court  may  order. 

36  The  court  shall  have  jurisdiction  throughout  the  commonwealth,  shall  ^^f'  ""^ders, 

37  always  be  open,  except  on  Sundays  and  legal  holidays,  and  shall  have  a 

38  seal  with  which  all  orders,  processes  and  papers  made  by  or  proceeding 

39  from  the  court  and  requiring  a  seal  shall  be  sealed.    Its  notices,  orders 

40  and  processes  may  run  into  any  county  and  be  returnable  as  it  directs. 

41  The  court  shall  from  time  to  time  make  general  rules  and  forms  for  Rules  and 

42  procedure,  which,  before  taking  effect,  shall  be  approved  by  the  supreme  °™^' 

43  judicial  court  or  by  a  justice  thereof. 

1  Section  2.     There  shall  be  two  judges  of  the  court,  one  of  whom  Judges. 

2  shall  be  appointed,  commissioned  and  qualified  as  judge  and  the  other  §'i?Lt.9;  ' 

3  as  associate  judge.  (Const.  Rev.  arts.  123,  140.)  '^'  ^'  "'''■  ^' 

1898,  562,  §  3.  1900,  3M,  §  1.  R.  L.  128,  §  2. 

1  Section  3.     The  court  may  be  held  by  one  judge  and  simultaneous  Sessions. 

2  sessions  may  be  held,  either  in  the  same  county  or  in  different  counties,  r*^l.'  vll]  1 1'. 

3  and  shall  be  so  arranged  as  to  insure  a  prompt  discharge  of  its  business. 

1  Section  4.     Processes  issuing  from  the  court  shall  bear  teste  of  the  citations. 

2  judge,  shall  be  under  the  seal  of  the  court  and  be  signed  by  the  recorder,  r.^l!  123!  1 4.' 

1  Section  5.     In  case  of  a  vacancy  in  the  office  of  judge,  or  of  his  in-  Associate  judge 

2  terest,  absence  or  inability  to  perform  his  duties,  the  associate  judge  shall  is9s,'502!T6. 

3  perform  them.  R.  l.  12s,  §  5. 

1  Section  6.     The  governor,  with  the  advice  and  consent  of  the  council,  fg9''s''5oo  5  7 

2  shall  appoint  a  recorder,  who  shall  be  clerk  of  the  court  and  hold  office  R-  l.  12s,  §  o. 

3  for  five  years.    He  shall  attend  the  sessions  of  the  court,  keep  a  docket 

4  of  all  causes,  and  affix  the  seal  of  the  court  to  all  processes  or  papers 

5  requiring  it. 

1  Section  7.     The  recorder  shall  be  under  the  direction  of  the  court.  Duties  and 

2  shall  have  the  custody  and  control  of  all  papers  and  documents  filed  re°OTder°^ 

0  with  him  in  any  petition  for  registration,  action  or  proceeding  in  said  ]l°l]  fif.  I  ?! 

4  court,  and  shall  carefully  number  and  index  them.    Said  papers  and  doc-  ly^^f^ts'  n' 

5  uments  shall  be  kept  in  Boston  in  the  recorder's  office,  which  shall  be 

6  near  the  land  court.    He  may,  with  the  court's  approval,  employ  neces- 

7  sary  assistants  and  messengers. 


2104 


THE   L\ND   COURT. 


[ClLiP.    185. 


S'^any'^TOunty"*      SECTION  8.     The  rccordcr  may  act  in  any  county,  and  after  land  has     1 

R  °l'  12's'  1 8     been  registered,  he  may  make  all  memoranda  affecting  the  title  and  enter    2 

and  issue  certificates  of  title  as  provided  in  this  chapter.  3 


Use  of  facsimile 
Bienature. 

1885,  321. 

1886,  13. 
§11.2. 

R.  L.  le.'S,  §  20. 
1907,  22.'>.  §  3. 
1910, 94. 


Section  9.     A  facsimile  of  the  signature  of  the  recorder,  imprinted  1 

by  him  or  by  such  office  assistant  as  he  in  writing  may  designate,  on  any  2 

paper  which  he  is  required  by  law  to  certify  as  a  true  copy,  except  a  copy  3 

of  a  decree  for  transcription  in  a  registry  of  deeds,  and  such  facsimile  im-  4 

printed  by  the  recorder  himself  upon  any  writ,  summons,  order  of  notice  5 

or  order  of  attachment,  except  executions,  shall  have  the  same  validity  6 

as  his  written  signature.  7 


Register  of 

deeds, 

duties. 

1898.  5fi2,  §  10. 

R.  L.  128,  §  9. 


Section  10.  The  register  of  deeds  in  each  district  where  land  has  1 
been  registered  shall  have  the  same  autliority  as  the  recorder  to  make  2 
memoranda  affecting  the  title  of  such  land,  and  to  enter  and  issue  new  3 
certificates  of  title,  and  to  affix  the  seal  of  the  court  to  such  certificates  4 
and  duplicate  certificates  of  title;  but  in  executing  the  provisions  of  5 
this  chapter,  registers  of  deeds  shall  be  subject  to  the  general  direction  6 
of  the  recorder,  in  order  to  secure  uniformity;  and,  in  the  performance  7 
of  their  duties  under  this  chapter,  the  official  designation  of  registers  of  8 
deeds  shall  be  assistant  recorders  for  their  respective  registry  districts.  9 
In  case  of  the  death  or  disability  of  the  recorder,  the  assistant  recorder  10 
for  the  Suffolk  district  shall  perform  the  duties  of  the  recorder.  11 


Oath  and  bond 
of  recorder. 
1898,562,  5  II. 
R.  L.  128,  I  10. 
1919,  350, 
§§  52,  54. 


Section  11.  The  recorder  and  all  assistant  recorders  shall  be  sworn  1 
before  the  judge  of  the  land  court,  and  a  record  thereof  shall  be  made.  2 
They  shall  give  bond  in  a  sum  to  be  fixed  by  the  court,  for  the  faithful  3 
performance  of  their  official  duties,  before  entering  upon  the  same.  4 
They  may  administer  oaths  to  persons  appearing  before  them  in  matters  5 
pertaining  to  the  registration  of  land,  if  an  oath  is  required.  They  shall  6 
keep  accurate  accounts  of  all  money  received  as  fees  or  othenvise,  which  7 
shall  be  subject  to  examination  by  the  director  of  accounts,  in  the  same  8 
manner  as  accounts  of  registers  of  deeds.  The  recorder  shall  pay  over  9 
cjuarterly  to  the  state  treasurer  all  such  money  received  by  him  either  10 
directly  or  through  the  assistant  recorders.  In  case  of  the  absence  of  11 
an  assistant  recorder,  the  assistant  register  for  the  district,  or  if  there  12 
is  no  assistant  register,  the  person  acting  as  clerk  in  the  office  of  the  13 
register  of  deeds,  shall  perform  the  duties  of  the  assistant  recorder,  who  14 
shall  be  responsible  for  him.  15 


Examiners 
of  title 


Section  12.     The  judge  of  the  land  court  inay  appoint  one  or  more     1 

r.^'l.  128, 1  u:  examiners  of  title  in  each  county,  who  shall  be  attorneys  at  law.    They     2 

may  be  remo\'ed  by  the  supreme  judicial  court.  3 


1904,  448,  §  1. 


?S98,'5°62,''fn.  Section  13.  Upon  request  of  the  judges,  the  sheriff  of  any  county  1 
ig'w.'lll'li'''  other  than  Suffolk  shall  assign  a  deputy  to  attend  the  sittings  of  tl^e  2 
!?'*•  698.         land  court  in  that  county.    The  judges  shall  appoint  an  officer  for  at-     3 


1919,  15.5, 


1920]  573.         tendance  upon  the  sessions  of  said  court  in  Suffolk  county. 


Section  14.    The  judge  and  associate  judge  of  the  land  court  shall 


.Salaries  and 
expenses  of 

','in%''^iS^%  ,0  each  receive  a  salary  of  ten  thousand  dollars,  and  each  shall  annually 

1898,  562,  §  13.  ,  i  •/>  p      i         •      1  l  p      i 

1900, 354, 1 2.  receive,  upon  the  certificate  oi  the  judge,  the  amount  oi  the  expenses 
1904,' 386.'  '  incurred  by  him  in  the  discharge  of  his  duties,  to  be  paid  by  the  com- 
1913; 738!         monwealth;    provided,  that  any  judge  or  associate  judge  appointed 


1 

2 
3 
4 
5 


Chap.  185.]  the  l.\nd  coctit.  2105 

6  before  June  fourth,  nineteen  hundred  and  twenty,  who  has  not  accepted  JgJI'aooss- 

7  the  increase  in  salary  provided  by  chapter  six  hundred  and  twenty-  287, 51. ' 

8  seven  of  the  acts  of  nineteen  hundred  and  twentv,  shall  receive  annually  1920',  sV's; 

9  two  thousand  dollars  less  than  the  salary  above  provided  for.     The 

10  recorder  shall  receive  a  salary  of  sixty-five  hundred  dollars.    The  salaries 

11  of  the  several  assistant  recorders,  in  lieu  of  compensation  on  the  basis  of 

12  fees  received,  shall  be  equal  to  the  compensation  received  by  them  or 

13  their  predecessors  in  their  respective  capacities  as  assistant  recorders 

14  for  the  year  ending  July  first,  nineteen  hundred  and  seventeen,  plus  ten 

15  per  cent  of  such  sum.     The  compensation  and  salaries  of  examiners  of 

16  title  and  all  assistants  and  messengers  shall  be  fixed  by  the  governor  and 

17  council.    The  salary  of  the  officer  in  attendance  upon  the  court  in  Suf- 

18  folk  county  shall  be  twenty-one  hundred  dollars,  in  full  for  all  services 

19  performed  by  him.    All  salaries  and  expenses  of  the  court  shall  be  paid 

20  by  the  commonwealth,  except  the  salaries  of  the  assistant  recorders  and 

21  the  expenses  incurred  by  them  under  this  chapter,  which  shall  be  paid  by 

22  the  respective  counties.     All  fees  collected  by  the  assistant  recorders, 

23  except  those  received  upon  the  filing  of  petitions,  which  shall  be  trans- 

24  mitted  with  the  petitions  to  the  recorder,  shall  be  paid  to  their  respec- 

25  tive  counties. 

PROCEDURE. 

1  Section  15.    Except  as  provided  in  the  following  section,  all  causes  issues  to  su- 

2  in  the  land  court  shall  be  tried  and  all  questions  of  fact  finally  determined  aSd'TemediL 

3  by  the  court,  unless  a  respondent  or  tenant  with  his  ansM'er,  or  a  peti-  jucfi^mf"urt 

4  tioner  or  demandant  within  ten  days  after  the  time  limited  by  law  for  Jsgg'fsf  I,*' 

5  filing  an  appearance  and  answer,  or  within  ten  days  after  the  time  al-  %V'i?8'  ^"^^' 

6  lowed  by  the  court  for  filing  an  answer,  claims  a  trial  by  jury.    If  trial  isoi!  448,' 

7  by  jury  is  claimed,  issues  therefor  upon  any  material  question  of  fact  1905.  mo',  §  4; 

8  shall,  upon  motion  of  either  party,  be  framed  in  the  land  court,  and  tlo&.^sli,  §  3. 

9  within  thirty  days  after  the  expiration  of  the  time  for  claiming  a  trial  H^^'l.^e'y. 

10  by  jiu-y,  except  as  otherwise  provided  in  section  sixteen  and  in  chapter  J2|^jf^^g^'  ||- 

11  two  hundred  and  thirty-seven,  copies  thereof  and  of  all  other  material  Joq  m'''^- }?k- 

12  papers  in  the  case,  certified  by  the  recorder,  shall  be  entered  by  the  192  Mass!  8, 

13  moving  party  in  the  superior  court  for  the  county  where  the  land  lies  for  lisMass. 486. 

14  a  jury  trial  thereon.    Failure  to  enter  the  copies  and  papers  required  by  ^^^'-^^^-^o- 

15  this  or  the  following    section  or  by  section  twenty-three  of  chapter  Jqq  Mass!  225! 

16  two  hundred  and  thirty-seven  within  the  times  limited  by  said  sections,  ^m  Ma^s.  117, 

17  respectively,  shall  constitute  a  waiver  of  the  claim  to  a  trial  by  jury,  205'Mass.  458, 

18  and  thereafter  the  superior  court  shall  have  no  further  jurisdiction  of  the  207'Mass.  133. 

19  case.     Upon  the  motion  of  either  party  in  the  superior  court  the  cause  214  Mass!  329,' 

20  shall  be  advanced  for  speedy  hearing,  but  no  matters  shall  be  tried  in  lisMass.  76. 

21  the  superior  court  except  those  specified  in  the  issues.     Questions  of  law  iisMass.  S33. 

22  arising  in  the  superior  court  may  be  taken  to  the  supreme  judicial  HI  Wm-  gjy- 

23  court   for   revision  by  any  party  aggrieved  by  any  opinion,  ruling,  222  Aiass.  407, 

24  direction  or  judgment  of  the  court,  in  the  same  manner  as  in  proceedings  223'Mass.  207. 

25  at  law  in  said  court.     Questions  of  law  arising  in  the  land  court  on  any  225  Mass!  531! 

26  decision  or  decree  may  be  taken  by  any  party  aggrieved  directly  to  the 

27  supreme  judicial  court  for  revision  in  the  same  manner  in  which  ques- 

28  tions  of  law  are  taken  to  that  coiu-t  from  the  superior  court.    The  land 

29  court,  after  any  decision  or  decree  dependent  upon  questions  of  law,  may 

30  report  such  decision  or  decree,  with  so  much  of  the  case  as  is  necessary 

31  for  understanding  such  questions  of  law,  for  the  determination  of  the 
■32  supreme  judicial  court. 


2106  THE  L,VND  COURT.  [Chap.  185. 

Appeal  m^^^          SECTION  16.     At  any  time  before  the  expiration  of  thirty  days  from  1 

1898. 562, 1 14.  ^he  entry  of  a  decree  in  a  case,  any  party  aggrieved  by  such  decree  2 

B.  l!  i'28',  §  13.  t^rliQ  files  an  affidavit  in  court  that  he  has  not  received  notice  of  the  3 

i9io!  5Ho!  §  1.    proceedings  by  registered  mail  and  that  any  signature  of  his  appearing  4 

19S  Mass.  521.   ^^  ^^^  receipt  for  registered  mail  filed  with  the  papers  in  the  case  is  5 

neither  his  signature  nor  signed  by  one  having  authority  so  to  do,  and  6 

that  in  no  other  way  did  he  receive  actual  notice,  or  have  knowledge,  7 

of  the  pendency  of  the  proceedings  within  the  time  allowed  for  filing  an  8 

appearance  and  answer,  may  appeal  from  said  decree  for  a  jury  trial  9 

on  any  question  of  fact.     Within  said  thirty  days  after  such  decree,  10 

issues  shall  be  framed  in  the  land  court  and  the  case  entered  in  the  11 

superior  court  for  trial  as  provided  in  the  preceding  section.  12 

of*verf^t.°"          Section  17.    The  clerk  of  the  superior  court,  after  the  determination  1 

R^L  lis  I  H  of  issues  from  the  land  court,  shall  certify  to  the  land  court  such  determi-  2 

1904, 44S,'  §  1.    nation,  which  shall  be  conclusive  upon  said  court  as  to  such  issues;  but  3 

the  land  court  may  hear  evidence  upon  other  material  questions  of  fact,  4 

and  arguments  upon  the  cause,  before  making  its  decision.  5 

ofdeci^foi""          Section  18.     The  clerk  of  the  supreme  judicial  court,  upon  the  de-  1 

1899' i3i' 1 3^'  termination  of  proceedings  pending  therein  upon  appeal  or  exceptions  2 

R.  h.  128, 1 14.  from  the  land  court,  shall  certify  to  the  land  court  the  final  decision,  and  3 

190  Mass!  90.'    the  land  court  shall  enter  the  final  decree  in  the  cause,  in  accordance  with  4 

198  Mass.  172.     ,,,•/?       j.  c 

216  Mass.  324.   the  Certificate.  i> 

pr^erate             Section  19.     If  an  appellant  docs  uot  duly  prosccutc  his  appeal  within  1 

isgrkfi'  5 16   the  time  limited,  the  original  order,  decision  or  decree  shall  stand  as  if  2 

R.  l!  128,  §  15.  no  appeal  had  been  taken.               i904, 448.                     205  Mass.  ,529.  3 

Enforcement         SECTION  20.    The  land  court  in  all  matters  over  which  it  has  juris-  1 

or  decrees.                                                    ..             .               i                    i                   •         i                                                     7  rv 

1898, 562, 1 17.  diction  may  enforce  its  orders  or  decrees  in  the  same  manner  as  decrees  2 

1904,' 448,'  §  1. '  are  enforced  in  equity.  3 

1914,  696.  1919,  155.  1920,  573. 

i89s^'5fi2,  §  18.      Section  21.     Costs  shall  be  taxed  and  the  collection  enforced  as  in  1 

R.  l!  128,  §  17.  .(-he  superior  court  sitting  in  equity,  unless  a  different  provision  is  made.  2 

fnd"pi°i!d'in"g?        Section  22.     Writs,  petitions,  bills  and  pleadmgs  in  proceedings  in  1 

1904, 448,  §  2.    tjig  iajj(j  court  may  be  filed  with  the  recorder  of  tlie  land  court,  or  with  2 

the  register  of  deeds  for  the  district  where  the  land  or  any  part  thereof  3 

lies,  who  shall  immediately  index  the  proceedings  in  the  general  index  by  4 

the  names  of  the  parties,  and  transmit  the  papers  to  the  recorder.    The  5 

recorder  shall  cause  copies  of  said  papers  to  be  made  and  transmitted  to  6 

the  said  register  of  deeds,  who  shall  file  the  same,  and,  if  the  original  7 

papers  were  filed  with  the  recorder,  index  the  proceedings  as  above  pro-  8 

vided.     Whenever  such  papers  contain  a  reference  to  any  instruments  9 

recorded  in  the  registry  of  deeds  where  they  are  filed,  the  register  of  deeds  10 

shall  cause  a  minute  thereof  to  be  made  upon  the  margin  of  such  record.  11 

deTrerafo'ire'''        Section  23.     The  recorder  shall  transmit  copies  of  all  final  decrees  1 

transmitted  to    aiid  cxccutions  in  proceedings  mentioned  in  the  preceding  section  to  the  2 

recnrde"r.          Tcgistcr  of  dccds  for  the  district  where  the  land  or  any  part  thereof  lies,  3 

who  shall  file  and  index  the  same  in  the  manner  provided  in  said  section.  4 


ClL\P.    185.]  REGISTRATION   OF  TITLE  TO   LAND.  2107 


1  Section  24.    The  court  may  refer  any  such  proceeding  to  one  of  the  Order  of 

2  examiners  appointed  under  section  twelve,  who  shall  examine  and  report  exlmlner.*" 

3  on  whatever  matters  of  title  or  fact  the  court  shall  designate  in  its  order  \IqI[  \ll\  ^  ^^ 

4  of  reference.    Such  reference,  if  made  immediately  upon  the  filing  or  entry 

5  of  the  proceeding,  shall  be  subject  to  section  thirty-seven,  so  far  as  ap- 

6  plicable,  but  if  made  after  an  appearance  is  entered  for  a  defendant  or 

7  tenant,  it  shall  be  subject  to  section  forty-three. 

1  Section  25.     In  matters  specified  in  paragraphs  (c)  to  {{),  inclusive.  General  law 

2  of  section  one  of  this  chapter  or  in  section  twelve  of  chapter  forty-two,  powlrTof^ 

3  the  court  shall  have  all  the  powers  which  the  superior  court  has  in  i904''448,  §  i. 

4  actions  at  law  and  suits  in  equity,  except  that  it  shall  hold  no  trials  by 

5  jury. 

original  registration. 
1      Section  26.     Petitions  for  registration  of  title  may  be  made  by  the  Petition  for 

2fl    11         •  registration. 

following  persons:  isos,  562,  §  19. 

3  First,  Persons  who  claim,  singly  or  collectively,  to  own  the  legal  estate  r^^l'JIs,  l^i's. 

4  or  easements  or  rights  in  land  held  and  possessed  in  fee  simple.  loTua^s  lis. 

5  Second,  Persons  who  claim,  singly  or  collectively,  to  have  the  power  |}i  J^ass.  442. 

6  of  appointing  or  disposing  of  the  legal  estate  or  easements  or  rights  in  226  Mass.  582! 

7  land  held  and  possessed  in  fee  simple. 

8  Third,  Infants  and  other  persons  under  disability,  by  their  legally  ap- 

9  pointed  guardians;  but  the  person  in  whose  behalf  the  petition  is  made 

10  shall  be  named  as  petitioner. 

11  Fourth,  Corporations,  by  any  officer  duly  authorized  by  a  vote  of  the 

12  directors. 

13  One  or  more  tenants  for  a  term  of  years,  which  is  regarded  as  a  fee 

14  simple  in  section  one  of  chapter  one  hundred  and  eighty-six,  shall  not 

15  petition  except  jointly  with  those  who  claim  the  reversionary  interest 

16  which  makes  up  the  fee  simple  at  common  law;  nor  shall  a  mortgagor, 

17  except  as  hereinafter  provided,  petition  without  the  written  consent  of 

18  the  mortgagee;  nor  shall  a  married  woman  petition  without  the  written 

19  consent  of  her  husband,  unless  she  holds  the  land  as  her  separate  prop- 

20  erty  or  has  a  power  to  appoint  the  land  in  fee  simple,  or  is  living  apart 

21  from  her  husband  for  a  justifiable  cause  which  has  been  established  by 

22  a  decree  of  court;  nor  shall  one  or  more  tenants  petition  who  claim  un- 

23  divided  shares  less  than  a  fee  simple  in  the  whole  land  described  in  the  pe- 

24  tition  for  registration.    If  the  holder  of  a  mortgage  does  not  consent  to 

25  the  petition,  it  may  be  entered  nevertheless,  and  the  title  registered, 

26  subject  to  the  mortgage,  which  may  be  dealt  with  or  foreclosed  as  if  the 

27  land  subject  to  it  had  not  been  registered.    The  decree  of  registration 

28  in  such  case  shall  describe  the  mortgage,  and  shall  state  that  it  has  not 

29  been  registered  and  that  registration  is  made  subject  to  it,  and  shall  pro- 

30  vide  that  no  subsequent  certificate  shall  be  issued  and  no  further  papers 

31  registered  relative  to  such  land  after  a  foreclosure  of  such  mortgage. 

1  Section  27.    The  petition  may  be  filed  with  the  recorder,  or  with  Record  of 

2  the  assistant  recorder  at  the  registry  of  deeds  for  any  district  where  the  of  petition 

3  land,  or  any  part  thereof,  lies.    Upon  filing  his  petition,  the  petitioner  Iggo!  ili.' 1 4^. ' 

4  shall  forthwith  cause  to  be  filed  in  the  registry  of  deeds  for  each  district  ^-  ^-  ^-*'  ^  ^''■ 

5  where  any  part  of  the  land  lies  a  memorandum  stating  that  the  petition 

6  for  registration  has  been  filed,  the  date  and  place  of  filing,  and  a  copy  of. 


2108  REGISTRATION   OF  TITLE  TO   L,\ND.  [ChAP.    185. 

the  description  in  the  petition  of  the  land  or  of  so  much  thereof  as  is  7 

within  the  district.    Such  memorandiun  shall  be  recorded  and  indexed  8 

by  the  register  with  the  records  of  deeds.    Each  assistant  recorder  shall  9 

also  keep  an  index  of  all  petitions  in  his  district,  and  in  every  case  where  10 

the  petition  is  filed  with  him  shall  transmit  the  petition,  the  papers  11 

and  plans  filed  therewith  and  such  memorandum,  when  recorded,  to  12 

the  recorder.  13 

rantSnta'if           SECTION  28.     The  petition  shall  be  in  writing,  signed  and  sworn  to  1 

1898' 562  §  21  ^y  cach  petitioner  or  by  a  person  duly  authorized  in  his  behalf.    It  shall  2 

R.  h.  128,  §  20.  contain  a  description  of  the  land,  and  shall  state  whether  the  petitioner  3 

is  married;  and  if  married,  the  name  of  the  wife  or  husband;  and  if  4 

unmarried,  whether  he  or  she  has  been  married,  and  if  so,  when  and  how  5 

the  marriage  relation  terminated;  and  if  by  divorce,  when,  where  and  by  6 

what  court  the  divorce  was  granted.    It  shall  also  state  the  name  in  full  7 

and  the  address  of  the  petitioner,  and  the  names  and  addresses  of  the  8 

adjoining  owners  and  occupants,  if  known;  and  if  not  known,  it  shall  9 

state  what  search  has  been  made  to  find  them.  10 

Sid'b  °undi*ng   .   Section  29.     If  the  petition  describes  the  land  as  bounded  on  a  public  1 

ligs^sM,  §  25.  or  private  way,  it  shall  state  whether  or  not  the  petitioner  claims  any  2 

i92^Ma5s'  220*'  ^°^  what  land  within  the  limits  of  the  way,  and  whether  the  petitioner  3 

desires  to  have  the  line  of  the  way  determined.  4 

j^cttomo"rt-         Section  30.    If  a  petition  is  made  subject  to  an  existing  recorded  1 

i89s°562''r27  mortgage,  the  holder  of  which  has  consented  thereto,  or  subject  to  a  2 

n°T*'^9«'i  OR  recorded  lease  for  a  term  exceeding  seven  years,  or  if  the  registration  is  3 

to  be  made  subject  to  such  a  mortgage  or  lease  executed  after  the  time  4 

of  the  petition  and  before  the  date  of  the  transcription  of  the  decree,  the  5 

petitioner,  before  a  decree  of  registration  is  entered,  shall,  if  required  6 

by  the  court,  file  a  certified  copy  of  such  mortgage  or  lease,  and  shall  7 

cause  the  original,  or,  in  the  discretion  of  the  court,  a  certified  copy  8 

thereof,  to  be  presented  for  registration;  and  no  registration  fee  shall  be  9 

charged  for  registering  such  original  mortgage  or  lease  or  such  certified  10 

copy.  11 

kidudTsCTerai       SECTION  31.     A  petition  may  include  two  or  more  contiguous  parcels  1 

i898t562,  §  24.  of  land,  or  two  or  more  parcels  which  constitute  one  holding  under  one  2 

R^L  ilklts.  ^^*i  th^  same  title,  within  the  same  registry  district.    But  two  or  more  3 

201  Mass.  158.   persons,  who  claim  in  the  same  parcels  different  interests  which  col-  4 

lectively  make  up  the  legal  estate  in  fee  simple  in  each  parcel,  shall  not  5 

join  in  one  petition  for  more  than  one  parcel  unless  their  interests  are  6 

alike  in  each  and  every  parcel.    The  court  may  at  any  time  order  a  peti-  7 

tion  to  be  amended  by  striking  out  one  or  more  of  the  parcels,  or  by  a  8 

severance  of  the  petition.  9 

toTetit^in"'^         Section  32.     Amendments  to  the  petition,  including  joinder,  substi-  1 

R^t  128, 1 11  tution,  or  discontinuance  as  to  parties,  shall  be  allowed  by  the  court  at  2 

201  Mass.  158.   j^j^y  time  upon  just  and  reasonable  terms;  but  all  amendments  shall  be  3 

in  ■WTiting,  signed  and  sworn  to,  like  the  original.  4 

sxnd'munF-  ^"^       Section  33.     The  petitioner  shall  file  with  the  petition  a  plan  of  the  1 

i898'''562,         land,  and  all  original  muniments  of  title  within  his  control.    Such  original  2 

§§  26, 36.        ,mununents  as  aft'ect  land  not  included  in  the  petition  may  be  withdrawn  3 


R.  L.  128,  §  26. 


Chap.  185.]  registration  of  title  to  land.  2109 

4  upon  filing  certified  copies  thereof.    If  a  petition  is  dismissed  or  discon-  n.  l.  128, 

5  tinned,  the  petitioner  may,  with  the  consent  of  the  court,  withdraw  such  204  Mass.  540. 

6  original  muniments  of  title.    The  court  may,  in  any  case  before  decree, 

7  require  a  further  survey  to  be  made  for  the  purpose  of  determining  bound- 

8  aries,  and  may  order  durable  bounds  to  be  set,  and  referred  to  in  the 

9  petition,  by  amendment.    The  expense  of  survey  and  bounds  shall  be 

10  taxed  in  the  costs  of  the  case  and  may  be  apportioned  among  the  parties 

11  as  justice  may  require.    If  no  persons  appear  to  oppose  the  petition,  such 

12  expense  shall  be  borne  by  the  petitioner. 

1  Section  34.    The  court  may  by  general  rule  require  additional  facts  Additional 

2  to  be  stated  in  the  petition  and  may  require  the  filing  of  additional  papers,  isos,'  562,  §  23. 

R.  L.  128,  §  27. 

1  Section  35.     If  the  petitioner  is  not  a  resident  of  the  commonwealth,  Aeentfomon- 

2  he  shall  file  with  his  petition  a  paper  appointing  an  agent  residing  in  the  isgsfse^,  §  22. 

3  commonwealth,  giving  his  name  in  full  and  post  office  address,  and  shall  ^'  ^'  ^'^'  ^  ~^' 

4  therein  agree  that  the  service  of  any  legal  process  in  proceedings  under 

5  or  growing  out  of  the  petition  shall  be  of  the  same  legal  effect  if  made  on 

6  said  agent  as  if  made  on  the  petitioner  within  the  commonwealth.    If  the 

7  agent  dies,  or  removes  from  the  commonwealth,  the  petitioner  shall 

8  forthwith  make  another  appointment;  and  if  he  fails  so  to  do,  the  court 

9  may  dismiss  the  petition. 

1  Section  36.     After  the  filing  of  a  petition  and  before  registration,  the  Record  of 

2  land  therein  described  may  be  dealt  with,  and  instruments  relating  thereto  peTding^peti- 

3  shall  be  recorded  in  the  same  manner,  as  if  no  such  petition  had  been  isos.^sei,  §  29. 

4  filed;   but  all  instruments  left  for  record  which  relate  to  such  land  shall  ^-  ^-  ^^'''  ^  ^^• 

5  be  indexed  in  the  usual  manner  in  the  registry  indexes  and  in  the  index 

6  of  petitions.    As  soon  as  a  petition  is  disposed  of,  the  recorder  shall  make 

7  a  memorandum  stating  the  disposition  of  the  case,  and  shall  send  the 

8  same  to  the  register  of  deeds  for  the  proper  district  or  districts,  who  shall 

9  record  and  index  it  with  the  records  of  deeds  and  in  the  index  of  petitions. 

10  If  a  decree  of  registration  of  title  is  entered  the  land  included  in  the 

1 1  decree  shall,  when  the  decree  is  transcribed  as  provided  in  section  forty- 

12  eight,  become  registered  land,  and  thereafter  no  deeds  or  other  instru- 
1:5  ments  which  relate  solely  to  such  land  shall  be  recorded  with  the  records 

14  of  deeds,  but  shall  be  registered  in  the  registration  book  and  filed  and 

15  indexed  with  the  records  and  documents  relating  to  registered  land. 

1  Section  37.     Immediately  after  the  filing  of  a  petition,  the  court  shall  Reference  to 

cxii  miner. 

2  enter  an  order  referring  it  to  one  of  the  examiners  of  title,  who  shall  search  isas,  662,  §  30. 

.  ...  .        R   L.  128   I  29. 

3  the  records  and  investigate  all  facts  stated  in  the  petition,  or  otherwise  i904.'  448,'  §  6. ' 

4  brought  to  his  notice,  and  shall  file  in  the  case  a  report  thereon,  conclud- 

5  ing  with  a  certificate  of  his  opinion  upon  the  title.    The  recorder  shall 

6  give  notice  to  the  petitioner  of  the  filing  of  such  report.    If  the  opinion  of 

7  the  examiner  is  adverse  to  the  petitioner,  he  shall  be  allowed  by  the  court 

8  a  reasonable  time  in  which  to  elect  to  proceed  further  or  to  withdraw  his 

9  petition.    The  election  shall  be  made  in  writing  and  filed  with  the  recorder. 

1  Section  38.     If,  in  the  opinion  of  the  examiner,  the  petitioner  has  a  Publication 

2  good  title  as  alleged,  and  proper  for  registration,  or  if  the  petitioner,  after  petition?  ° 


2110  REGISTRATION   OP  TITLE  TO   L.\ND.  [Ch.\P.    185. 

1898, 562, 1 31.  an  adverse  opinion  of  the  examiner,  elects  to  proceed  further,  the  recorder  3 

1904,' 448,' §  1.  ■  shall,  immediately  upon  the  filing  of  the  examiner's  opinion,  or  upon  4 

the  filing  of  the  petitioner's  election,  as  the  case  may  be,  cause  notice  of  5 

the  filing  of  the  petition  to  be  published  in  a  newspaper  published  in  the  6 

district  where  any  portion  of  the  land  lies.    The  notice  shall  be  issued  7 

by  order  of  the  court,  attested  by  the  recorder,  and  shall  be  in  form  sub-  8 

stantially  as  follows :  9 

Commonwealth  of  Massachusetts. 

Land  Court. 

To  {here  insert  the  names  of  all  persons  known  to  have  an  adverse  interest,  a7}d 
the  adjoining  owners  and  occwpants,  so  Jar  as  known),  and  to  all  whom  it  maij 
concern: 

Whereas  a  petition  has  been  presented  to  said  court  by  (name  or  names  and 
address  in  full)  to  register  and  confirm  his  (or  their)  title  in  the  following  de- 
scribed land  (insert  description). 

You  are  hereby  cited  to  appear  at  the  land  court  to  be  held  at  , 

in  the  county  of  ,  on  the  day  of  A.D. 

,  at  o'clock  in  the  forenoon,  to  show  cause,  if  any  you 

have,  why  the  prayer  of  said  petition  should  not  be  granted.  And  unless  you 
appear  at  said  court  at  the  time  and  place  aforesaid  your  default  will  be  re- 
corded, and  the  said  petition  will  be  taken  as  confessed,  and  you  will  be  forever 
barred  from  contesting  said  petition  or  any  decree  entered  thereon. 

Witness  ,  Esquire,  judge  of  said  court,  this  day  of 

in  the  year  nineteen  hundred  and 

Attest : 

Recorder. 

S^noUce*''  Section  39.     The  return  day  of  said  notice  shall  be  not  less  than     1 

JS?'  S^?'  I  }'^-  twenty  nor  more  than  sixty  days  after  the  date  of  issue.    The  court  shall     2 

190U,  o54,  §5.  ,  ...  ,  p  ,,.  .  p         .  ^  ■• 

R.  L.  128.  §  31.  also,  within  seven  days  after  publication  of  said  notice  in  a  newspaper,  3 
192  Mass.'  22o!  causc  a  copy  thereof  to  be  sent  by  the  recorder  by  mailing  a  registered  4 
letter  to  every  person  named  therein  whose  address  is  known.  The  5 
court  shall  also  cause  a  duly  attested  copy  of  the  notice  to  be  posted  in  6 
a  conspicuous  place  on  each  parcel  of  land  included  in  the  petition,  by  a  7 
sheriff  or  deputy  sheriff,  fourteen  days  at  least  before  the  return  day  8 
thereof,  and  his  return  shall  be  conclusive  proof  of  such  service.  If  the  9 
petitioner  requests  to  have  the  line  of  a  public  way  determined,  the  court  10 
shall  order  notice  to  be  given  by  the  recorder,  by  mailing  a  registered  letter  1 1 
to  the  mayor  of  the  city  or  to  one  of  the  selectmen  of  the  town  or  towns  12 
where  the  land  lies,  or,  if  the  way  is  a  highway,  to  one  of  the  county  13 
commissioners  of  the  county  or  counties  where  the  land  lies.  If  the  land  14 
borders  on  a  river,  navigable  stream  or  shore,  or  on  an  arm  of  the  sea  15 
where  a  river  or  harbor  line  has  been  established,  or  on  a  great  pond,  16 
or  if  it  otherwise  appears  from  the  petition  or  the  proceedings  that  the  17 
commonwealth  may  have  a  claim  adverse  to  that  of  the  petitioner,  notice  18 
shall  be  given  in  the  same  manner  to  the  attorney  general.  The  court  may  19 
also  cause  other  or  further  notice  of  the  petition  to  be  given.  The  court  20 
shall,  so  far  as  it  considers  it  possible,  require  proof  of  actual  notice  to  all  21 
adjoining  owners  and  to  all  persons  who  appear  to  have  any  interest  in  22 
or  claim  to  the  land  included  in  the  petition.  Notice  to  such  persons  by  23 
mail  shall  be  by  registered  letter.  The  certificate  of  the  recorder  that  24 
he  has  served  the  notice  as  directed  by  the  court,  by  publishing  or  mail-  25 
ing,  shall  be  filed  in  the  case  before  the  return  day,  and  shall  be  con-  26 
elusive  proof  of  such  service.  27 


Chap.  185.]  eegistration  of  title  to  land.  2111 

1  Section  40.     Upon  the  return  of  the  notice,  and  upon  proof  of  service  Guardian 

2  of  all  orders  of  notice  issued,  the  court  may  appoint  a  disinterested  person  isqs,  502,  §  33. 

3  to  act  as  guardian  ad  litem  for  minors,  and  for  persons  under  disability,  r.  l'.  12s  §  32. 

4  and  for  all  persons  not  in  being,  unascertained,  unknown  or  out  of  the  i9°^'''52.  §  i- 

5  commonwealth,  who  may  have  an  interest.    The  compensation  of  the 

6  guardian  shall  be  determined  by  the  court  and  paid  as  part  of  the  expenses 

7  of  the  court. 

1  Section  41.     Any  person  who  claims  an  interest,  whether  named  in  Answer. 

2  the  notice  or  not,  may  appear  and  file  an  answer  on  or  before  the  return  r.  l!  12s',  §  33. 

3  day,  or  within  such  further  time  as  the  court  may  allow.    The  answer  shall 

4  state  all  objections  to  the  petition,  shall  set  forth  the  interest  claimed  by 

5  the  person  who  files  it,  and  shall  be  signed  and  sworn  to  by  him  or  by  a 

6  person  in  his  behalf. 

1  Section  42.     If  no  person  appears  and  answers  within  the  time  al-  °a'i"e°l5™' 

2  lowed,  the  court  may  at  once  upon  motion  of  the  petitioner,  no  reason  fg^'=g''*jg2  s  35 

3  to  the  contrary  appearing,  order  a  general  default  to  be  recorded  and  the  k.  l'.  128,  §  -a'. 

4  petition  to  be  taken  for  confessed.     By  the  description  in  the  notice, 

5  "to  all  whom  it  may  concern",  all  the  world  are  made  parties  defendant 

6  and  shall  be  concluded  by  the  default  and  order.     After  such  default 

7  and  order,  the  court  may  enter  a  decree  confirming  the  title  of  the  peti- 

8  tioner  and  ordering  registration  thereof.    The  court  shall  not  be  bound 

9  by  the  report  of  the  examiner  of  title,  but  may  require  other  or  further 
10  proof. 

1  Section  43.     If,  in  any  case,  an  appearance  is  entered  and  answer  Hearing. 

2  filed,  the  case  shall  be  set  down  for  hearing  on  the  motion  of  either  party,  SalTe'r!"^''  *° 

3  but  a  default  and  order  shall  first  be  entered  against  all  persons  who  do  r  ^l.  12^!  1 35! 

4  not  appear  and  answer,  in  the  manner  provided  in  the  preceding  section.  jg^JI'  tot'  ^ '' 

5  The  court  may  refer  the  case  or  any  part  thereof  to  one  of  the  examiners  203  iiass.  es. 

6  of  title,  as  master,  to  hear  the  parties  and  their  evidence,  and  make  report 

7  thereof  to  the  court.    His  report  shall  have  the  same  effect  as  that  of  a 

8  master  appointed  by  the  superior  court  in  equity,  and  he  shall  proceed 

9  according  to  the  rules  of  said  court  applicable  to  masters,  except  as  the 

10  same  may  be  modified  by  the  rules  of  the  land  court.    The  compensation 

11  of  a  master  appointed  under  this  section,  and  of  an  examiner  under  sec- 

12  tion  twenty-four,  shall  be  awarded  by  the  land  court,  and  shall  be  paid 

13  by  the  county  where  the  land  involved  in  the  proceedings  is  situated, 

14  except  that  said  compensation  may  be  awarded  by  the  land  court  in  its 

15  discretion  as  a  part  of  the  taxable  costs  of  the  proceedings,  in  which  case 

16  the  compensation  shall  be  paid  as  decreed  by  said  court. 

1  Section  44.     If  the  court  finds  that  the  petitioner  has  not  title  proper  Dismissal, 

2  for  registration,  a  decree  shall  be  entered  dismissing  the  petition,  and  petition. 

3  such  decree  may  be  ordered  to  be  without  prejudice,  in  whole  or  in  part,  r^^l.  12I',  |  II'. 

4  but  unless  so  ordered  it  shall  bind  the  parties,  their  privies  and  the  land  Jgg^jvi^jfi,^'  fyo. 

5  in  respect  of  any  issue  of  fact  which  has  been  tried  and  determined.    The  S2i  Ji""^  Jo?- 

6  petitioner  may  withdraw  his  petition  at  any  time  before  final  decree,  208  Mass.  510. 

7  upon  terms  fixed  by  the  court.    The  court  may  require  a  petitioner  who 

8  moves  to  withdraw  his  petition  or  to  substitute  some  other  person  as 

9  petitioner,  to  stipulate  that  he  shall  be  bound  by  the  result  of  any  issue 

10  of  fact  which  has  been  tried  and  determined,  and  such  stipulation  shall 

11  bind  the  parties,  their  privies  and  the  land  itself. 


2112 


REGISTRATION    OF  TITLE   TO    L.iND. 


[Chap.  185. 


Decree  of  con- 
firmation and 
registration. 
1898,  562,  §  38. 
R.  L.  128,  5  37. 
1910,  560,  5  4. 
175  Mass.  71. 
194  Mass.  40. 
198  Mass.  172. 
213  Mass.  128. 
228  Mass.  385. 
179  U.  S.  405. 


Section  45.  If  the  court,  after  hearing,  finds  that  the  petitioner  has  1 
title  as  stated  in  his  petition,  and  proper  for  registration,  a  decree  of  2 
confirmation  and  registration  shall  be  entered,  which  shall  bind  the  land  3 
and  quiet  the  title  thereto,  subject  only  to  the  exceptions  stated  in  the  4 
following  section.  It  shall  be  conclusive  upon  and  against  all  persons,  5 
including  the  commonwealth,  whether  mentioned  by  name  in  the  peti-  6 
tion,  notice  or  citation,  or  included  in  the  general  description  "to  all  7 
whom  it  may  concern".  Such  decree  shall  not  be  opened  by  reason  8 
of  the  absence,  infancy  or  other  disability  of  any  person  affected  thereby,  9 
nor  by  any  proceeding  at  law  or  in  equity  for  reversing  judgments  or  10 
decrees;  subject,  however,  to  the  right  of  any  person  deprived  of  land,  11 
or  of  any  estate  or  interest  therein,  by  a  decree  of  registration  obtained  12 
by  fraud  to  file  a  petition  for  review  within  one  year  after  the  entry  of  the  13 
decree,  provided  no  innocent  purchaser  for  value  has  acquired  an  in-  14 
terest.  If  there  is  any  such  purchaser,  the  decree  of  registration  shall  not  15 
be  opened  but  shall  remain  in  full  force  and  effect  forever,  subject  only  to  16 
the  right  of  appeal  as  provided  by  law  from  time  to  time.  But  any  per-  17 
son  aggrieved  by  such  decree  in  any  case  may  pursue  his  remedy  in  tort  18 
against  the  petitioner  or  against  any  other  person  for  fraud  in  procuring  19 
the  decree.  20 


Section  46.     E\'ery  petitioner  receiving  a  certificate  of  title  in  pur- 
suance of  a  decree  of  registration,  and  every  subsequent  purchaser  of 
a  certificate  of  title  for  value  and  in  good  faith, 


1911,9. 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 


Tenure  of 

holder  of 

certificate 

of  title.  .  ,    ,         ,         ,  . 

i|9|.  5R2, 1  39.  registered  land  takin, 

R.  l!  128',  §  38.  shall  hold  the  same  free  from  all  encumbrances  except  those  noted  on 
the  certificate,  and  any  of  the  following  encumbrances  which  may  be 
existing: 

1915. 290.  First,  Liens,  claims  or  rights  arising  or  existing  under  the  laws  or  con- 

stitution of  the  United  States  or  the  statutes  of  this  commonwealth  which 
are  not  by  law  required  to  appear  of  record  in  the  registry  of  deeds  in 
order  to  be  valid  against  subsequent  purchasers  or  encumbrances  of 
record. 

Second,  Taxes,  within  two  years  after  they  have  been  committed  to  12 

the  collector.  13 

Third,  Any  highway,  town  way,  or  any  private  way  laid  out  under  14 

section  twenty-one  of  chapter  eighty-two,  if  the  certificate  of  title  does  15 

not  state  that  the  boundary  of  such  way  has  been  determined.  16 

Fourth,  Any  lease  for  a  term  not  exceeding  seven  years.  17 

Fifth,  Any  liability  to  assessment  for  betterments  or  other  statutory  18 

liability,  except  for  taxes  payable  to  the  commonwealth,  which  may  19 

attach  to  land  in  the  commonwealth  as  a  lien  prior  to,  or  independent  20 

of,  the  recording  or  registering  of  any  paper;  but  if  there  are  easements  21 

or  other  rights  appurtenant  to  a  parcel  of  registered  land  which  for  any  22 

reason  have  failed  to  be  registered,  such  easements  or  rights  shall  remain  23 

so  appurtenant  notwithstanding  such  failure,  and  shall  be  held  to  pass  24 


with  the  land  until  cut  off  or  extinguished  by 
servient  estate,  or  in  any  other  manner. 


the  registration  of  the  25 
26 


Contents  of  Section  47.     Every  decree  of  registration  shall  bear  date  of  the  year, 

189S.  562. 1 40.  month,  day,  hour  and  minute  of  its  entry  and  shall  be  signed  by  the 
198  Mass.' 172.'  rccordcr.  It  shall  state  whether  the  owner  of  the  land  registered  is 
224  Mass.' 424!  married  or  unmarried,  and  if  married,  the  name  of  the  husband  or  wife. 
22.3  Mass!  242:    If  such  owncr  is  under  disability  it  shall  state  the  nature  thereof,  and  if 


CbL^P.   1S5.]  REGISTRATION   OF  TITLK  TO   LAND.  2113 

6  a  minor,  shall  state  his  age.    It  shall  contain  a  description  of  the  land 

7  as  finally  determined  by  the  court,  shall  set  forth  the  estate  of  the  owner 

8  and  also,  in  such  manner  as  to  show  their  relative  priority,  all  particu- 

9  lar  estates,  mortgages,  easements,  liens,  attachments  and  other  encum- 

10  brances,  including  rights  of  husband  or  wife,  if  any,  to  which  the  land 

11  or  the  owner's  estate  is  subject,  and  may  contain  any  other  matter 

12  properly  to  be  determined  in  pursuance  of  this  chapter.    The  decree  shall 

13  be  stated  in  a  form  convenient  for  transcription  upon  the  certificates  of 

14  title  hereinafter  mentioned. 

1  Section  48.     Immediately  upon  the  entry  of  the  decree  of  regis-  Transcription 

2  tration,  the  recorder  shall  send  a  certified  copy  thereof,  under  the  seal  Registry""' 

3  of  the  court,  to  the  register  of  deeds  for  the  district  or  districts  where  r.^l!  12s',  §  to. 

4  the  land  lies,  and  the  register,  as  assistant  recorder,  shall  transcribe 

5  the  decree  in  a  book  to  be  called  the  registration  book,  in  which  a  leaf 

6  or  leaves  in  consecutive  order  shall  be  devoted  exclusively  to  each  title, 

7  and  note  therein  the  day,  hour  and  minute  when  said  decree  is  tran- 

8  scribed.    The  entry  made  by  the  assistant  recorder  in  this  book  in  each 

9  case  shall  be  the  original  certificate  of  title,  shall  be  signed  by  him  and 

10  sealed  with  the  seal  of  the  court.    All  certificates  of  title  shall  be  num- 

11  bered  consecutively,  beginning  with  number  one.    The  assistant  recorder 
•   12  shall  in  each  case  make  an  exact  duplicate  of  the  original  certificate, 

13  including  the  seal,  but  putting  on  it  the  words  "Owner's  duplicate 

14  certificate",  and  deliver  it  to  the  owner  or  to  his  duly  authorized  at- 

15  torney.    In  case  of  a  variance  between  the  owner's  duplicate  certificate 

16  and  the  original  certificate,  the  original  shall  prevail.     The  certified 

17  copy  of  the  decree  of  registration  shall  be  filed  and  numbered  by  the 

18  assistant  recorder,  with  a  reference  noted  on  it  to  the  place  of  record  of 

19  the  original  certificate  of  title.     If,  however,  a  petition  includes  land 

20  lying  in  more  than  one  district,  the  court  shall  cause  the  part  lying  in 

21  each  district  to  be  described  separately  by  metes  and  bounds  in  the 

22  decree  or  decrees  of  registration,  the  recorder  shall  send  to  the  assistant 

23  recorder  for  each  registry  district  a  copy  of  the  decree  containing  a 

24  description  of  the  land  within  that  district,  and  the  assistant  recorder 

25  shall  register  the  same  and  issue  an  owner's  duplicate  therefor;  and  there- 

26  after,  for  all  matters  pertaining  to  registration,  the  portion  in  each  dis- 

27  trict  shall  be  treated  as  a  separate  parcel  of  land. 

1  Section  49.    The  certificate  first  registered  in  pursuance  of  a  decree  Tranfcription. 

2  of  registration  in  regard  to  any  parcel  of  land  shall,  in  the  registration  effectiv^e  from 

3  book,  be  entitled   "  Original  certificate  of  title,  entered  pursuant  to  isol  "lia,  §  42. 

4  decree  of  the  land  court,  dated  at"  (stating  time  and  place  of  entry  of  ^■^-  ^-*'  ^*^- 

5  decree  and  the  number  of  the  case).    The  certificate  shall  take  effect 

6  from  the  date  of  the  transcription  of  the  decree.    Subsequent  certificates 

7  relating  to  the  same  land  shall  be  in  like  form,  but  shall  be  entitled 

8  "Transfer  from  No.  "  (the  number  of  the  last  previous  certificate 

9  relating  to  the  same  land),  and  also  the  words  "Originally  registered" 
10  (date,  volume  and  page  of  registration). 

1  Section  50.     If  two  or  more  persons  are  registered  owners  as  tenants  Dupiirate 

2  in   common,  or  otherwise,  one  owner's  duplicate  certificate  may  be  esta'tcriir  ° 

3  issued  for  the  whole  land  or  a  separate  duplicate  may  be  issued  to  each  isos^'ms,  §  43. 

4  for  his  undivided  share.  R.  L.  128, 1 42. 


2114 


REGISTRATION   OF  TITLE   TO   LAND. 


[Chap.  185. 


certificate,"^  SECTION  51.     A  registered  owner  holding  one  duplicate  certificate 

sttt'ute*  ^"''"  for  several  distinct  parcels  of  land  may  surrender  it,  with  the  approval  of 
189S.  562, 1 44.  the  court,  and  take  out  several  certificates  for  portions  thereof,  or  if  he 
holds  separate  duplicate  certificates  for  several  distinct  parcels,  he  may 
surrender  them  and,  with  like  approval,  take  out  a  single  duplicate 
certificate  for  the  whole  land,  or  several  certificates  for  dift'erent  portions 
thereof.  An  owner  who  subdivides  a  tract  of  registered  laud  into  lots 
shall  file  with  the  recorder  a  plan  thereof,  when  applying  for  a  new 
certificate  or  certificates,  and  the  court,  before  issuing  the  same,  shall 
cause  the  plan  to  be  verified,  and  require  that  all  boundaries,  streets  10 
and  passageways  shall  be  distinctly  and  accurately  delineated  thereon.  11 


S  agreement  SECTION  52.  The  obtaining  of  a  decree  of  registration  and  the  entry 
fand"^  "'*''  of  a  certificate  of  title  shall  be  regarded  as  an  agreement  running  with 
R  ^L  128  1 44'  *^^®  ^^"'^  ^^^^  binding  upon  the  petitioner  and  his  successors  in  title 

that  the  land  shall  be  and  forever  remain  registered  land  and  subject 

to  this  chapter  and  all  acts  in  amendment  thereof. 


Prescription 
etc..  not  to 


Section  53.  No  title  to  registered  land,  or  easement  or  other  right  1 
falfd."^"^'""^'^'^''  therein,  in  derogation  of  the  title  of  the  registered  owner,  shall  be  ac-  2 
189S,  562,  §  4G.  quiped  by  prescription  or  adverse  possession.  R.  l.  12s,  §  45.  3 


Evidence, 
what  to  be 


Section  54.    The  original  certificate  in  the  registration  book,  any  1 

r.^l'.T2^8,|46  copy  thereof  duly  certified  under  the  signature  of  the  recorder  or  an  2 

assistant  recorder  and  the  seal  of  the  court,  and  also  the  owner's  dupli-  3 

cate  certificate,  shall  be  received  as  evidence  in  all  courts  of  the  com-  4 

monwealth,  and  shall  be  conclusive  as  to  all  matters  contained  therein,  5 

except  as  otherwise  provided  in  this  chapter.  6 


Section  55.     Every  certificate  of  title  shall  set  forth  the  names  of 


Contents  of 
certificate. 

1898, 502.  §  48.  ^\\  the  persous  whose  estates  make  up  the  estate  in  fee  simple  in  the 

R.  L.  128,  §  4/.       ,,,,  111-  -f  !•  1  1 

whole  land,  and  duplicate  certificates  may  be  issued  to  each  person,  but 
the  recorder  or  assistant  recorder  shall  note  in  the  registration  book  and 


on  each  duplicate,  to  whom  such  duplicate  was  issued. 


Indexes,  rec- 
ord books,  etc. 
189S,  562,  §  49. 
R.  L.  128,  §  48. 


Section  56.     The  recorder,  under  the  direction  of  the  court,  shall  1 

make  and  keep  indexes  of  all  petitions  and  of  all  decrees  of  registration,  2 

and  shall  also  index  and  classify  all  papers  and  instruments  filed  in  his  3 

office  relating  to  petitions  and  to  registered  titles.    The  recorder  shall  4 

also,  under  the  direction  of  the  court,  cause  forms  of  indexes  and  regis-  5 

tration  and  entry  books  to  be  prepared  for  the  use  of  the  assistant  re-  6 

corders.    The  court  shall  prepare  and  adopt  convenient  forms  of  certifi-  7 

cates  of  title  and  shall  also  adopt  general  forms  of  memoranda  to  be  used  8 

by  the  assistant  recorders  in  registering  the  common  forms  of  conveyance  9 

and  other  instruments  to  express  briefly  their  eft'ect.  10 


Owner  of  reg- 
istered land 
may  convey, 

1898,  562,  I  5 
R,  L.  128,  §  4 


VOLUNTARY  DEALING  WITH   LAND   AFTER   ORIGINAL  REGISTR.\TI0N. 

Section  57.     An  owner  of  registered  land  may  convey,  mortgage,  1 

lease,  charge  or  otherwise  deal  with  it  as  fully  as  if  it  had  not  been  regis-  2 

tered.    He  may  use  forms  of  deeds,  mortgages,  leases  or  other  voluntary  3 

instruments,  like  those  now  in  use,  sufficient  in  law  for  the  purpose  m-  4 

tended.    But  no  deed,  mortgage  or  other  voluntary  instrument,  except  5 

a  will  and  a  lease  for  a  term  not  exceeding  seven  years,  purporting  to  G 


Ch.\P.    185.]  REGISTRATION   OF  TITLE  TO   L.iND.  2115 

7  convey  or  affect  registered  land,  shall  take  effect  as  a  conveyance  or  bind 

8  the  land,  but  shall  operate  only  as  a  contract  between  the  parties,  and  as 

9  evidence  of  authority  to  the  recorder  or  assistant  recorder  to  make  regis- 

10  tration.    The  act  of  registration  only  shall  be  the  operative  act  to  convey 

11  or  affect  the  land,  and  in  all  cases  the  registration  shall  be  made  in  the 

12  office  of  the  assistant  recorder  for  the  district  or  districts  where  the  land 

13  lies. 

1  Section  58.     Every    conveyance,    lien,    attachment,    order,    decree.  Notice  of 

2  instrument  or  entry  affecting  registered  land,  which  would  under  other  !S9s°562.°rii. 

3  provisions  of  law,  if  recorded,  filed  or  entered  in  the  registry  of  deeds,  ^'-  ^-  ^-^'  ^  ^°- 

4  affect  the  land  to  which  it  relates,  shall,  if  registered,  filed  or  entered  in 

5  the  office  of  the  assistant  recorder  of  the  district  where  the  land  to  which 

6  such  instrument  relates  lies,  be  notice  to  all  persons  from  the  time  of 

7  such  registering,  filing  or  entering. 

1  Section  59.     No  new  certificate  shall  be  entered  or  issued  upon  any  Estate  ies3 

2  transfer  of  registered  land  which  does  not  divest  the  title  in  fee  simple  sfrnpie^ow 

3  from  the  owner  or  some  one  of  the  registered  owners.    All  interests  in  isls's^lo,'  §  52. 

4  registered  land  less  than  an  estate  in  fee  simple  shall  be  registered  by  ^-  ^-  ^-®'  ^  si. 

5  filing  with  an  assistant  recorder  the  instrument  which  creates  or  transfers 

6  or  claims  such  interest  and  by  a  brief  memorandum  thereof  made  by  an 

7  assistant  recorder  upon  the  certificate  of  title,  and  signed  by  him.    A 

8  similar  memorandum  shall  also  be  made  on  the  owner's  duplicate.    The 

9  cancellation  or  extinguishment  of  such  interests  shall  be  registered  in  the 
10  same  manner. 

1  Section  60.     If  the  assistant  recorder  is  in  doubt  upon  any  question.  Reference  of 

2  or  if  any  party  in  interest  does  not  agree  as  to  the  proper  memorandum  qSestiona. 

3  to  be  made  in  pursuance  of  any  deed,  mortgage  or  other  voluntary  in-  r.^l.  128,  §  52! 

4  strument  presented  for  registration,  the  question  shall  be  referred  to  the 

5  court  for  decision,  either  on  the  certificate  of  the  assistant  recorder  stating 

6  the  question  in  doubt,  or  upon  the  suggestion  in  writing  of  any  party  in 

7  interest;   and  the  court,  after  notice  to  all  parties  and  a  hearing,  shall 

8  enter  an  order  prescribing  the  form  of  memorandum  to  the  assistant 

9  recorder,  who  shall  make  registration  in  accordance  therewith. 

1  Section  61.     Every  deed  or  other  voluntary  instrument  presented  for  Orantee's  res!- 

2  registration  shall  contain  or  have  endorsed  upon  it  the  full  name,  resi-  to besLted. 

3  dence  and  post  office  address  of  the  grantee  or  other  person  acquiring  or  r^'l.  12!',  |  Is. 

4  claiming  an  interest  under  such  instrument,  and  every  deed  shall  also 

5  state  whether  the  grantee  is  married  or  unmarried,  and  if  married,  the 

6  name  in  full  of  the  husband  or  wife.    Any  change  in  the  residence  or  post 

7  office  address  of  such  person  shall  be  endorsed  by  an  assistant  recorder 

8  on  the  original  instrument,  upon  receiving  a  sworn  statement  of  such 

9  change.     All  names  and  addresses  shall  also  be  entered  on  all  certifi- 

10  cates.    Notices  and  processes  issued  in  relation  to  registered  land  may  be 

11  served  upon  any  person  in  interest  by  mailing  them  to  the  address  so 

12  given,  and  shall  be  binding,  whether  he  resides  within  or  without  the 

13  commonwealth. 

1  Section  62.     No  new  certificate  of  title  shall  be  entered,  and  no  Presentation  ot 

2  memorandum  made  upon  any  certificate  of  title  by  the  recorder  or  any  °7"eon e"uy' 

3  assistant  recorder,  in  pursuance  of  any  deed  or  other  voluntary  instru-  rate?etc!'"'^' 


2116  REGISTRATION   OF  TITLE   TO   LVND.  [ChAP.    185. 

IS98, 562,  §  55.  mcnt,  unlcss  the  owner's  duplicate  certificate  is  presented  with  such  in-  4 

'    ■      '       '  strument,  except  in  cases  expressly  provided  for  in  this  chapter  or  upon  5 

the  order  of  the  court,  for  cause  shown,  and  whenever  such  order  is  made,  6 

a  memorandum  thereof  shall  be  entered  on  the  new  certificate  of  title  and  7 

on  the  owner's  duplicate.     The  production  of  the  owner's  duplicate  cer-  8 

tificate,  whenever  a  voluntary  instrument  is  presented  for  registration,  9 

shall  be  conclusive  authority  from  the  registered  owner  to  the  recorder  10 

or  an  assistant  recorder  to  enter  a  new  certificate  or  to  make  a  memoran-  11 

dum  of  registration  in  accordance  with  such  instrument,  and  the  new  12 

certificate  or  memorandum  shall  be  binding  upon  the  registered  owner  13 

and  upon  all  persons  claiming  under  him,  in  favor  of  every  purchaser  for  14 

value  and  in  good  faith.    In  all  cases  of  registration  procured  by  fraud,  15 

the  owner  may  pursue  all  his  legal  and  equitable  remedies  against  the  16 

parties  to  such  fraud,  without  prejudice  however  to  the  rights  of  any  17 

innocent  holder  for  value  of  a  certificate  of  title.    After  the  transcrip-  18 

tion  of  the  decree  of  registration  on  the  original  petition,  any  subsequent  19 

,                      registration  procured  by  the  presentation  of  a  forged  duplicate  certificate,  20 

or  of  a  forged  deed  or  other  instrument,  shall  be  null  and  void.    In  case  21 

of  the  loss  or  theft  of  an  owner's  duplicate  certificate,  notice  shall  be  sent  22 

by  the  owner  or  by  a  person  in  his  behalf  to  the  assistant  recorder  for  the  23 

district  where  the  land  lies,  as  soon  as  the  loss  or  theft  is  discovered.  24 

DupHcate'"'          Section  63.     Each  assistant  recorder  shall  keep  an  entry  book  in  1 

andcertified      which  hc  shall  enter,  in  the  order  of  their  reception,  all  deeds  and  other  2 

COP16S. 

1898, 562, 1 56.  voluutary  instruments,  and  all  copies  of  writs  or  other  processes  filed  3 

'  with  him  relating  to  registered  land.    He  shall  note  in  such  book  the  year,  4 

month,  day,  hour  and  minute  of  reception  of  all  instruments,  in  the  order  5 

in  which  they  are  received.    They  shall  be  regarded  as  registered  from  6 

the  time  so  noted,  and  the  memorandum  of  each  instrument,  w^ien  made  7 

on  the  certificate  of  title  to  which  it  refers,  shall  bear  the  same  date.  8 

Every  deed  or  other  instrument,  voluntary  or  involuntary,  so  filed  9 

with  the  recorder  or  assistant  recorder,  shall  be  numbered  and  indexed,  10 

and  endorsed  with  a  reference  to  the  proper  certificate  of  title.     All  11 

records  and  papers  relative  to  registered  land  in  the  office  of  the  recorder  12 

or  of  an  assistant  recorder  shall  be  open  to  the  public  in  the  same  manner  13 

as  probate  records,  subject  to  such  reasonable  regulations  as  the  recorder,  14 

under  the  direction  of  the  court,  may  make.  15 

Duplicates  of  all  deeds  and  voluntary  instruments  filed  and  registered  16 

may  be  presented  with  the  originals,  shall  be  attested  and  sealed  by  the  17 

recorder  or  an  assistant  recorder,  endorsed  with  the  file  number  and  other  IS 

memoranda  on  the  originals  and  may  be  taken  away  by  the  person  pre-  19 

senting  them.  20 

Certified  copies  of  all  instruments  filed  and  registered  may  also  be  ob-  21 

tained  at  any  time  upon  payment  of  the  assistant  recorder's  fees.  22 

CONVEYANCE   IN   FEE. 

^Terofregis-        Section  64.     Au  owHcr  desiring  to  convey  his  registered  land  or  any  1 

1S9S,  S62l'§  57.  portion  thereof  in  fee  shall  execute  a  deed  of  conveyance,  which  the  grantor  2 

R^Li^s  lie  o^  grantee  may  present  to  the  assistant  recorder  in  the  district  where  3 

the  land  lies.    The  grantor's  duplicate  certificate  shall  be  produced  and  4 

presented  at  the  same  time.     The  assistant  recorder  shall  thereupon,  in  5 

accordance  with  the  rules  and  instructions  of  the  court,  make  out  in  tiie  <> 


ClLiP.    185.]  REGISTRATION   OF  TITLE   TO   LAND.  2117 

7  registration  book  a  new  certificate  of  title  to  the  grantee,  and  shall  prepare 

8  and  deliver  to  him  an  owner's  duplicate  certificate.    The  assistant  re- 

9  corder  shall  note  upon  the  original  and  duplicate  certificates  the  date  of 

10  transfer,  the  volume  and  page  of  the  registration  book  in  which  the  new 

11  certificate  is  registered  and  a  reference  by  number  to  the  last  preceding 

12  certificate.    The  grantor's  duplicate  certificate  shall  be  surrendered  and 

13  the  word  "cancelled"  stamped  upon  it.     The  original  certificate  shall 

14  also  be  stamped  "cancelled".  The  deed  of  conveyance  shall  be  filed  and 
1.5  endorsed  with  the  number  and  place  of  registration  of  the  certificate  of 
16  title  of  the  land  conveyed. 

1  Section  65.     If  a  deed  in  fee  is  for  a  part  only  of  the  land  described  ?ortfon'ofreg- 

2  in  a  certificate  of  title,  the  assistant  recorder  shall  also,  in  accordance  'f'jlg'^'^gf/-.  gg 

3  with  the  rules  and  instructions  of  the  court,  enter  a  new  certificate  and  isoo!  354.'  §  6. 

4  issue  an  owner's  duplicate  to  the  grantor  for  the  part  of  the  land  not 

5  included  in  the  deed.    In  every  case  of  transfer,  the  new  certificate  or 

6  certificates  shall  include  all  the  land  described  in  the  original  and  surren- 

7  dered  certificates;   but  no  new  certificate  to  a  grantee  of  a  part  only  of 

8  the  land  shall  be  invalid  by  reason  of  the  failure  of  the  assistant  recorder 

9  to  enter  a  new  certificate  to  the  grantor  for  the  remaining  imconveyed 

10  portion.    If  the  land  described  in  a  certificate  of  title  is  divided  into  lots, 

11  designated  by  numbers  or  letters,  with  measurements  of  all  the  bounds, 

12  and  a  plan  of  said  land  has  been  filed  with  the  recorder  and  verified  pur- 

13  suant  to  section  fifty-one,  and  a  certified  copy  thereof  is  recorded  in  the 

14  registration  book  with  the  original  certificate  when  the  registered  owner 

15  makes  a  deed  of  transfer  in  fee  of  one  or  more  of  such  lots,  the  assistant 

16  recorder  may,  instead  of  cancelling  such  certificate  and  entering  a  new 

17  certificate  to  the  grantor  for  the  part  of  the  land  not  included  in  the  deed 

18  of  transfer,  enter  on  the  original  certificate  and  on  the  owner's  duplicate 

19  certificate  a  memorandum  of  such  deed  of  transfer,  with  a  reference  to 

20  the  lot  or  lots  thereby  conveyed,  as  designated  on  said  plan,  and  stating 

21  that  the  certificate  is  cancelled  as  to  such  lot  or  lots.    Every  certificate 

22  with  such  memorandum  shall  be  as  effectual  for  the  purpose  of  showing 

23  the  grantor's  title  to  the  remainder  of  the  land  not  conveyed  as  if  the  old 

24  certificate  had  been  cancelled  and  a  new  certificate  of  such  land  entered; 

25  and  such  process  may  be  repeated  so  long  as  there  is  convenient  space 

26  upon  the  original  certificate  and  the  owner's  duplicate  certificate  for 

27  making  such  memorandum  of  sale  of  lots. 

1  Section  66.     If,  at  the  time  of  any  transfer,  encumbrances  or  claims  statement  of 

2  adverse  to  the  title  of  the  registered  owner  appear  upon  the  registration  isQsTsfiz.TM. 

3  book,  they  shall  be  stated  in  the  new  certificate  or  certificates,  except  so  ^'  ^"  ^^*'  ^  **' 

4  far  as  they  may  be  simultaneously  released  or  discharged. 

mortgages. 

1  Section  67.     The  owner  of  registered  land  may  mortgage  it  by  execut-  Mortgage  of 

2  ing  a  mortgage  deed.    Such  deed  may  be  assigned,  extended,  discharged,  land."' 

3  released  in  whole  or  in  part,  or  otherwise  dealt  with  by  the  mortgagee  by  r^'I'.  12s',  1 59! 

4  any  form  of  deed  or  instrument  sufficient  in  law  for  the  purpose.    But 

5  such  mortgage  deed,  and  all  instriunents  which  assign,  extend,  discharge 

6  and  otherwise  deal  with  the  mortgage,  shall  be  registered,  and  shall  take 

7  effect  upon  the  title  only  from  the  time  of  registration. 


2118  REGISTRATION   OF  TITLE  TO   L.\ND.  [ChaP.    185. 

of^SoH^ag?          Section  68.     Registration  of  a  mortgage  shall  be  made  in  the  follow-  1 

R^L  i^l  ieo  '^'"■S  manner:  The  owner's  duplicate  certificate  shall  be  presented  to  the  2 

assistant  recorder  with  the  mortgage  deed,  and  he  shall  enter  upon  the  3 

original  certificate  of  title  and  also  upon  the  owner's  duplicate  certificate  4 

a  memorandum  of  the  purport  of  the  mortgage  deed,  the  time  of  filing  5 

and  the  file  number  of  the  deed,  and  shall  sign  the  memorandum.    He  6 

shall  also  note  upon  the  mortgage  deed  the  time  of  filing  and  a  reference  7 

to  the  volume  and  page  of  the  registration  book  in  which  it  is  registered.  8 

The  assistant  recorder  shall  also,  at  the  request  of  the  mortgagee,  make  9 

out  and  deliver  to  him  a  duplicate  of  the  certificate  of  title  like  the  10 

owner's  duplicate,  except  that  the  words  "  Mortgagee's  duplicate  "  shall  be  11 

stamped  upon  it  in  large  letters  diagonally  across  its  face.    A  memoran-  12 

dum  of  the  issue  of  the  mortgagee's  duplicate  shall  be  made  upon  the  13 

original  certificate  of  title.  14 


9 


et?'^"™""*'          Section  69.     If  a  mortgage  upon  which  a  mortgagee's  duplicate  has  1 
1898^562     62  ^^^^  issucd  is  assigucd,  extended  or  otherwise  dealt  with,  the  mortgagee's 

R. l!  128",  §  6i!  duplicate  shall  be  presented  with  the  instnunent  -uhich  assigns,  extends  3 

or  otherwise  deals  with  the  mortgage,  and  a  memorandum  of  the  instru-  4 

ment  shall  be  made  upon  the  mortgagee's  duplicate  certificate.    When  5 

the  mortgage  is  discharged  or  othen\-ise  extinguished,  the  mortgagee's  6 

duplicate   certificate  shall  be  sm-rendered  and  stamped   "cancelled".  7 

The  production  of  the  mortgagee's  duplicate  certificate  shall  be  con-  8 

elusive  authority  to  register  the  instrument  therewith  presented,  subject,  9 

however,  to  all  the  provisions  and  exceptions  contained  in  section  sLxty-  10 

tliree,  so  far  as  applicable.  11 

A  mortgage  on  registered  land  may  be  discharged  by  the  mortgagee  12 

in  person  on  the  registration  book  in  the  same  manner  as  a  mortgage  on  13 

unregistered  land  may  be  discharged  by  an  entry  on  the  record  book  in  14 

the  registry  of  deeds,  and  such  discharge  shall  be  attested  by  an  assistant  15 

recorder.  16 

morr'rr^°'  Section  70.  Mortgages  of  registered  land  may  be  foreclosed  like  1 
189S,  5G2, 1 63.  mortgages  of  unregistered  land;  but  in  case  of  foreclosure  by  entry  and  2 
1905',  29b;  §  1."  possession,  the  certificate  of  entry  required  by  section  two  of  chapter  3 
two  hundred  and  forty-four  shall  be  filed  and  registered  by  an  assist-  4 
ant  recorder  within  thirty  days  after  the  entry,  in  lieu  of  recording.  5 
After  possession  has  been  obtained  by  the  mortgagee  or  his  assigns,  by  6 
entry  or  by  action,  and  has  continued  for  the  tmie  required  by  law  to  com-  7 
plete  the  foreclosure,  he  or  his  assigns  may  petition  the  land  court  for  8 
the  entry  of  a  new  certificate,  and  the  court,  after  notice  to  all  parties  in  9 
interest,  shall  have  jurisdiction  to  hear  the  case,  and  may  order  the  entry  10 
of  a  new  certificate  on  such  terms  as  equity  and  justice  may  requu-e.  11 
In  case  of  foreclosure  by  action  as  pro\'ided  in  chapter  two  hundred  12 
and  forty-four,  and  by  exercising  the  power  of  sale  in  the  mortgage  13 
under  the  direction  of  the  court  as  pro^'ided  therein,  a  certified  copy  of  14 
the  final  decree  confirming  the  sale  may,  after  the  time  for  appeal  there-  15 
from  has  expired,  be  filed  with  the  assistant  recorder,  and  the  purchaser  16 
shall  thereupon  be  entitled  to  the  entry  of  a  new  certificate.  17 

In  case  of  foreclosure  by  exercising  the  power  of  sale  without  a  pre^^ous  18 
decree  of  court,  the  affidavit  required  by  section  fifteen  of  chapter  two  19 
hundred  and  forty-fom-  shall  be  filed  and  registered  Mith  the  assistant  20 
recorder,  in  lieu  of  recording.  The  purchaser  at  the  foreclosure  sale  or  21 
his  assigns  may  thereupon  at  any  time  present  the  deed  under  the  power  22 


Chap.  185.]  registration  of  title  to  land.  2119 

23  of  sale  to  the  assistant  recorder  for  filiiii;  and  registration,  and  obtain  a 

24  new  certificate,  after  the  mortgagee's  duplicate,  if  any,  has  been  delivered 

25  up  and  cancelled;  but  this  chapter  shall  not  prevent  the  mortgagor  or 

26  other  person  in  interest,  prior  to  the  entry  of  a  new  certificate  of  title, 

27  from  directly  impeaching,  by  bill  in  equity  or  otherwise,  any  foreclosure 

28  proceedings  affecting  registered  land.  ■ 

29  After  a  new  certificate  of  title  has  been  entered,  no  judgment  recov- 

30  ered  on  the  mortgage  note  for  any  balance  due  thereon  shall  operate 

31  to  open  the  foreclosure  or  affect  the  title  to  registered  land. 

LEASES. 

1  Section  71.     Leases  of  registered  land  for  a  term  of  seven  years  or  Leases  of  reg- 

2  more  shall  be  registered  in  lieu  of  recording.    A  lessee's  duplicate  cer-  i^898';'562°t  64. 

3  tificate  may  be  issued  to  the  lessee  upon  his  request,  subject  to  the  pro-  ^'  ^'  '^^'  ^  ''^' 

4  visions  hereinbefore  made  relative  to  a  mortgagee's  duplicate  certificate, 

5  so  far  as  applicable. 

TRUSTS. 

1  Section  72.     If  a  deed  or  other  instrument  is  filed  in  order  to  transfer  Trusts  in 

2  registered  land  in  trust,  or  upon  any  equitable  condition  or  limitation  fand."''^*''* 

3  expressed  therein,  or  to  create  or  declare  a  trust  or  other  equitable  in-  ^^l\  ill',  1 64^ 

4  terest  in  such  land  without  transfer,  the  particulars  of  the  trust,  condi- 

5  tion,  limitation  or  other  equitable  interest  shall  not  be  entered  on  the  cer- 

6  tificate;   but  a  memorandum  thereof  shall  be  entered  by  the  words  "in 

7  trust",  or  "upon  condition",  or  other  apt  words,  and  by  a  reference  by 

8  number  to  the  instrument  authorizing  or  creating  the  same.    A  similar 

9  memorandum  shall  be  made  upon  the  duplicate  certificate.  The  as- 
10  sistant  recorder  shall  note  upon  the  original  instrument  creating  or  de- 
ll daring  the  trust  or  other  equitable  interest  a  reference  by  number  to 

12  the  certificate  of  title  to  which  it  relates,  and  to  the  volume  and  page 

13  in  the  registration  book  in  which  it  is  registered.    If  the  instrument  creat- 

14  ing  or  declaring  a  trust  or  other  ecjuitable  interest  is  already  recorded  in 

15  the  registry  of  deeds  or  of  probate,  a  certified  copy  may  be  filed  by  the 

16  assistant  recorder  and  registered. 

1  Section  73.     If  the  instrimient  creating  or  declaring  a  trust  or  other  Trusts  with 

2  equitable  interest  contains  an  express  power  to  sell,  mortgage  or  deal  ^tT.^how^''^' 

3  with  the  land  in  any  manner,  such  power  shall  be  stated  in  the  certificate  ilgsfl^',  5  66. 

4  of  title  by  the  words  "with  power  to  sell",  or  "power  to  mortgage",  R-L-128, §65. 

5  and  by  apt  words  of  description  in  case  of  other  powers.    No  instruilaent 

6  which  transfers,  mortgages  or  in  any  way  deals  with  registered  land  held 

7  in  trust  shall  be  registered,  unless  the  power  thereto  enabling  is  expressly 

8  conferred  in  the  trust  instrument,  or  unless  the  decree  of  a  court  of 

9  competent  jurisdiction  on  a  bill  for  instructions  or  other  proceeding  has 

10  construed  the  instrument  in  fa\or  of  the  power.    In  such  case  a  certified 

1 1  copy  of  such  decree  may  be  filed  with  the  assistant  recorder,  and  he  shall 

12  make  registration  in  accordance  therewith. 

1  Section  74.     If  a  new  trustee  of  registered  land  is  appointed  by  the  Proceedings 

2  supreme  judicial  court,  the  superior  court  or  the  probate  court,  a  new  rfTOwTr^urte^"' 

3  certificate  shall  be  entered  to  him  upon  presentation  to  the  assistant  r.^l.  128, 1  tl'. 

4  recorder  of  a  certified  copy  of  the  decree  and  the  surrender  of  the  dupli- 

5  cate  certificate. 


2120 


REGISTRATION   OF  TITLE   TO   L.\ND. 


[Ch.\p.  185. 


trusKow""  Section  75.  Whoever  claims  an  interest  in  registered  land  by  reason 
iMs'tol'^j  68  °^  ^^y  implied  or  constructive  trust  shall  file  for  registration  with  the 
R.  L.  128,  §  67.  assistant  recorder  a  statement  thereof  containing  a  description  of  the 
land,  and  a  reference  to  the  number  of  the  certificate  of  title  and  the 
volume  and  page  of  the  registration  book  in  which  it  is  entered.  Such 
claim  shall  not  affect  the  title  of  a  purchaser  for  value  and  in  good  faith 
before  its  registration. 


trastee'for'  SECTION  76.     A  trustce  mav  petition  for  registration  of  any  land  held     1 

o^l'and'*'"''       ill  trust  by  him,  unless  expressly  prohibited  by  the  instriunent  creating    2 

1898,  562,  5  69.  the  trUSt.  '        R.  L.  128,  |  OS.  3 


Incidents  of 

registered 

land, 

1898,  562,  5  70. 

R.  L.  128,  §  69. 


LEGAL   INCIDENTS    OF   REGISTERED    L.AND. 

Section  77.     Registered  land,   and  ownership  therein,   shall  in  all  1 

respects  be  subject  to  the  burdens  and  incidents  attaching  by  law  to  2 

unregistered  land.     This  chapter  shall  not  relieve  registered  land  or  the  3 

owners  thereof  from  any  rights  incident  to  the  relation  of  husband  and  4 

wife,  or  from  liability  to  attachment  on  mesne  process  or  le\y  on  execu-  5 

tion,  or  from  liability  to  any  lien  of  any  description  established  by  law  6 

on  land  and  the  buildings  thereon,  or  on  the  interest  of  the  owner  in  such  7 

land  or  buildings,  nor  shall  it  change  the  laws  of  descent,  or  the  rights  of  8 

partition  between  co-tenants,  or  the  right  to  take  the  same  by  eminent  9 

domain,  or  relieve  such  land  from  hability  to  be  recovered  by  an  as-  10 

signee  in  insolvency  or  trustee  in  bankruptcy  under  the  laws  relative  to  11 

preferences,  or  change  or  affect  in  any  way  any  other  rights  or  liabilities  12 

created  by  law  and  applicable  to  unregistered  land,  except  as  otherwise  13 

expressly  provided  in  tliis  chapter.  14 


Attachment 

of  registered 

land. 

1898.  562,  I  71. 

R.  L.  128,  §  70. 

1915.  120,  §  2; 
292.  §  2. 

1916,  306,  5  1. 
233  Mass.  314. 


ATTACHMENTS   AND   OTHER   LIENS. 

Section  78.    A  writing  of  any  description  or  a  copy  of  any  vrrit  re-  1 

quired  by  law  to  be  filed  or  recorded  in  the  registry  of  deeds  in  order  to  2 

create  or  preserve  any  lien,  right  or  attachment  upon  unregistered  land,  3 

if  intended  to  affect  registered  land  shall,  in  lieu  of  recording,  be  filed  4 

and  registered  in  the  office  of  the  assistant  recorder  for  the  registry  dis-  5 

trict  where  the  land  lies,  and,  in  addition  to  any  particulars  required  in  6 

such  papers  for  recording  with  records  of  deeds,  shall  also,  except  in  the  7 

case  of  attachment  on  mesne  process,  contain  a  reference  to  the  number  .8 

of  the  certificate  of  title  of  the  land  to  be  affected,  and  the  volume  and  9 

page  of  the  registration  book  in  which  the  certificate  is  registered,  and  10 

also,  if  the  attachment,  right  or  lien  is  not  claimed  on  all  the  land  in  any  11 

certificate  of  title,  shall  contain  a  description  sufficiently  accurate  for  12 

identification  of  the  land  intended  to  be  affected.  13 


^^OT°n?"f"™        Section  79.     If  an  attacliment  or  other  lien  or  adverse  claim  of  any  1 

isgs.^sel  §  72  description  is  registered,  and  the  duplicate  certificate  is  not  presented  2 

E.  L.  12S,  §  71.  at  the  time  of  registration  to  the  assistant  recorder,  he  shall,  within  3 

twenty-four  hours  thereafter,  send  notice  by  mail  to  the  registered  4 

owner,  stating  that  such  paper  has  been  registered,  and  requesting  him  5 

to  send  or  produce  his  duplicate  certificate  so  that  a  memorandum  of  6 

the  attachment  or  other  lien  or  adverse  claim  may  be  made  thereon.  7 

If  the  owner  neglects  or  refuses  to  comply  within  a  reasonable  time,  8 

the  assistant  recorder  shall  suggest  the  fact  to  the  court,  and  it  shall,  9 


Chap.  185.]  eegistration  of  title  to  land.  2121 

10  after  notice,  enter  an  order  to  the  owner  to  produce  his  certificate  at 

11  a  time  and  place  named  therein,  and  may  enforce  the  order  by  suitable 

12  process. 

1  Section  80.     Attachments    on    mesne    process    and    Hens    of    every  Dissolution. 

2  description    upon    registered   land    shall    be   continued,    reduced,    dis-  mcn'ts,  etc."'^  ' 

3  charged  and  dissolved  by  any  method  sufficient  in  law  to  continue,  r^l.  ^28'.  1 72! 

4  reduce,  discharge  or  dissolve  like  liens  on  unregistered  land.     All  certifi- 

5  cates  or  other  instruments  permitted  or  required  by  law  to  be  recorded 

6  in  the  registry  of  deeds  to  give  effect  to  the  continuance,   reduction, 

7  discharge  or  dissolution  of  attachments  or  other  liens  upon  unregis- 

8  tered  land,  or  to  give  notice  of  such  continuance,  reduction,  discharge 

9  or  dissolution,  shall,  in  the  case  of  like  liens  upon  registered  land,  be 

10  filed  with  the  assistant  recorder  and  registered  in  the  registration  book, 

11  in  lieu  of  recording. 

1  Section  81.    All  laws  relative  to  attachments  of  real  estate  and  appiSwe  to 

2  leasehold  estates  on  mesne  process  shall  apply  to  registered  land',  except  attachments 

3  that  the  duties  required  to  be  performed  by  the  register  of  deeds  shall  isas,  sci.  §  74. 

4  be  performed  by  the  assistant  recorder  for  the  registry  district  where 

5  the  land  lies,  who,  in  lieu  of  recording,  shall  register  the  facts  required  to 

6  be  recorded,  and  for  that  purpose  shall  keep  books  similar  to  those 

7  required  to  be  kept  for  attachments  by  registers  of  deeds,  and  the  fees 

8  for  registering  attachments  shall  be  the  same  as  for  recording  them. 

1  Section  82.     If  an  attachment  is  made,  the  name  and  address  of  of^pUimjA'"' 

2  the  plaintiff's  attorney  shall  be  endorsed  upon  the  writ,  and  he  shall  s^t^tomey  upon 

3  be  deemed  to  be  the  attorney  of  the  plaintiff  until  written  notice  that  isos.  562.  §  75. 

4  he  has  ceased  to  be  such  shall  have  been  filed  for  registration  by  the 
.5  plaintiff. 

1  Section  83.     If  an  attachment  on  mesne  process  is  continued,  re-  Registration 

2  duced,  dissolved  or  otherwise  affected  by  an  order,  decision  or  judgment  ?nurt,e?o.° 

3  of  the  court  where  the  action  or  proceeding  in  which  said  attachment  u^t',  ill',  1 75! 

4  was  made  is  pending,  or  by  an  order  of  a  court  having  jurisdiction  in 

5  insolvency  or  bankruptcy,  a  certificate  of  the  entry  of  such  order,  de- 

6  cision  or  judgment  from  the  clerk  or  register  and  under  the  seal  of  the 

7  court,  shall  be  entitled  to  be  registered  on  presentation  to  the  assistant 

8  recorder.    A  like  certificate  of  the  allowance  by  the  court  of  an  amend- 

9  ment  which  a  subsequent  attaching  creditor  or  purchaser  contends  had 

10  the  effect  of  dissolving  an  attachment  may  be  registered  as  an  amend- 

11  ment  allowed,  but  shall  not  be  conclusive  of  dissolution,  unless  the 

12  court  where  the  action  or  suit  is  pending  adjudicates  that  the  amend- 

13  ment  dissolved  the  attachment,  whereupon  a  certificate  of  the  order, 
•  14  when  it  becomes  absolute,  shall  be  registered  as  a  dissolution  of  the 

15  attachment. 

1  Section  84.     Any  lien  on  registered  land  shall  be  enforced  in  the  Enforcement 

2  same  manner  as  a  like  lien  on  unregistered  land.     If  registered  land  Registered" 

3  is  set  off  or  sold  on  execution,  or  taken  or  sold  for  taxes  or  for  any  as-  fsos.  562, 5  78. 

4  sessment,  or  sold  to  enforce  a  lien  for  labor  or  materials,  or  the  lien  of  ^-  ^  ^^^'  ^  ^^' 

5  a  mortgagee  or  co-tenant  arising  from  a  payment  of  taxes,  or  the  lien  for 

6  an  assessment  under  chapter  eighty,  or  for  costs  and  charges  for  taking 

7  down  dangerous  structures  under  section  nine  of  chapter  one  hundred 


2122 


REGISTRATION   OF  TITLE   TO   L.-USID. 


[Chap.  185. 


and  forty-tlaree,  or  for  erecting  fences  along  the  line  of  a  railroad  corpo-  8 

ration  under  section  ninety-foiir  of  chapter  one  hundred  and  sixty,  or  for  9 

improving  low  land  and  swamps  under  section  eight  of  chapter  two  hun-  10 

dred  and  fifty-two,  or  for  flowing  land  under  section  fourteen  of  chapter  11 

two  hundred  and  fifty-three,  or  for  any  costs  and  charges  incident  to  12 

such  liens,  any  execution,  or  copy  of  the  execution,  any  officer's  return,  13 

or  any  deed,  demand,  certificate  or  affidavit  or  other  instrument  made  14 

in  the  course  of  proceedings  to  enforce  such  liens  and  required  by  law  15 

to  be  recorded  in  the  registry  of  deeds  in  the  case  of  unregistered  land,  16 

shall  be  filed  -with  the  assistant  recorder  for  the  district  where  the  land  17 

lies  and  registered  in  the  registration  book,  and  a  memorandum  made  18 

upon  the  proper  certificate  of  title  in  each  case  as  an  adverse  claim  or  19 

encumbrance.  20 

fo?Mrtificate         SECTION  85.     When  the  time  has  expired  for  redemption  after  regis-  1 

credUo'rs.'S".     tcred  land  has  been  set  off  or  sold  on  execution,  or  taken  or  sold  for  2 

R  ^L  1^1 1 7s  ^'^^  enforcement  of  a  lien  of  any  description,  the  person  claiming  under  3 

an  execution  or  a  deed  or  other  instrument  made  in  the  course  of  pro-  4 

ceedings  to  levy  such  execution  or  enforce  any  lien  may  petition  for  5 

the  entry  of  a  new  certificate  to  him,  which  may  be  granted.    Every  such  6 

new  certificate  shall  contain  a  memorandum  of  the  nature  of  the  pro-  7 

ceeding  on  which  it  is  based.    Before  the  entry  of  a  new  certificate,  the  8 

registered  owner  may  pursue  all  legal  and  equitable  remedies  to  im-  9 

peach  or  annul  proceedings  under  executions  or  to  enforce  liens  of  any  10 

description.  11 


Registration 
of  notice  of 
proceedings, 
etc.,  required 
to  bind  third 
parties. 

1898,  562,  5  80. 
R.  L.  128,  §  79. 


PENDING   SUITS,   JUDGMENTS,   DECREES   AND  PARTITIONS. 

Section  86.  No  writ  of  entry,  petition  for  partition,  or  other  pro-  1 
ceeding  at  law  or  in  equity  affecting  the  title  to  land  or  the  use  and  2 
occupation  thereof  or  the  buildings  thereon,  and  no  judgment  or  decree,  3 
or  any  writ  of  error,  bill  of  review  or  other  proceeding  to  vacate  or  4 
reverse  any  judgment  or  decree,  shall  have  any  effect  upon  registered  5 
land  as  against  persons  other  than  the  parties  thereto,  unless  a  memoran-  6 
dum  like  that  described  in  section  fifteen  of  chapter  one  hundred  and  7 
eighty-four,  containing  also  a  reference  to  the  number  of  the  certificate  8 
of  title  of  the  land  affected  and  the  volume  and  page  of  the  registration  9 
book  in  which  it  is  entered,  is  filed  and  registered.  This  section  shall  10 
not  apply  to  attaclmients,  levies  of  execution,  or  to  the  probate  of  wills  11 
or  administration  in  the  probate  court.  If  notice  of  the  pendency  of  the  12 
proceeding  has  been  duly  registered,  it  shall  be  sufficient  to  register  the  13 
judgment  or  decree  within  sixty  days  after  the  rendition  thereof.  14 


Registration 
of  certificate 
of  judgment, 
etc 


Section  87.  At  any  time  after  final  judgment  or  decree  in  favor  of 
the  defendant,  or  other  disposition  in  the  manner  specified  in  section 
R^t  128  I  80  s^^P^"  of  chapter  one  hundred  and  eighty-four,  of  any  case  where  a 
memorandum  has  been  registered  as  provided  in  the  preceding  section, 
a  certificate  of  the  clerk,  stating  the  manner  of  disposal  thereof,  as  pro- 
vided in  said  section  sixteen,  shall  be  entitled  to  registration. 


?fTudgment  Section  88.     If  judgment  is  entered  for  the  plaintiff  or  demandant  1 

i898™'62.^"82.  "1  ^  ^cal  actiou  affecting  registered  land,  except  in  ejectment,  and  ac-  2 

R.  L.  128, 1 81.  tions  under  chapter  two  hundred  and  thirty-nine  relative  to  terms  of  less  3 

than  seven  years,  such  judgment  shall  be  entitled  to  registration  on  pres-  4 


Ch.'VP.    185.]  REGISTE.4.TI0N   OF  TITLE  TO   'LAND.  2123 

5  entation  of  a  certificate  of  the  entry  thereof  from  the  clerk  of  the  court 

6  where  the  action  is  pending  to  the  assistant  recorder,  who  shall  enter 

7  a  memorandum  upon  the  certificate  of  title  of  the  land  to  which  such 

8  judgment  relates.    If  the  judgment  does  not  apply  to  all  the  land  described 

9  in  the  certificate  of  title,  the  certificate  of  the  clerk  and  the  memorandum 

10  entered  by  the  assistant  recorder  shall  contain  a  description  of  the  land 

11  affected  by  the  judgment. 

1  Section  89.     If  an  execution  or  writ  of  seisin  has  been  issued  upon  Reeistration 

2  a  writ  of  entry  affecting  registered  land  and  served  by  the  officer,  he  shall  sei^n,  etc, 

3  cause  an  attested  copy  of  the  execution,  with  a  return  of  his  doings  i89sr562r§  ss. 

4  thereon,  to  be  filed  and  registered  within  three  months  after  the  service  ^-  ^-  ^^*'  ^  *^- 

5  and  before  the  return  of  the  execution  into  the  clerk's  ofhce,  and  the 

6  demandant,  if  the  judgment  was  that  he  was  entitled  to  an  estate  in  fee 

7  simple  in  the  demanded  premises,  or  in  any  part  thereof,  and  for  which 

8  execution  issued,  shall  thereupon  be  entitled  to  the  entry  of  a  new  certifi- 

9  cate  of  title;  but  in  informations  under  chapter  two  hundred  and  forty- 

10  Hxe  the  commonwealth  shall  be  entitled  to  have  the  certificate  of  the 

11  registered  owner  cancelled  by  the  land  court  as  soon  as  judgment  is 

12  rendered  in  its  favor. 

1  Section  90.     If,  in  a  writ  of  dower,  judgment  is  entered  confirming  Registration  of 

2  the  report  of  the  commissioners  under  section  seven  of  chapter  two  j^udgm'ifnti'n 

3  hundred  and  tliirty-eight,  or  if,  in  a  writ  of  waste,  judgment  is  entered  ^".'  °'  '^°"^'^" 

4  that  the  plaintiff  recover  the  place  wasted,  a  certificate  of  the  entry  of  J^^^^'  ils  1 83' 

5  such  judgment  may  be  registered  as  an  encumbrance. 

1  Section  91.     A  decree  of  a  court  of  competent  jurisdiction  affecting  Registration 

2  title  or  rights  in  registered  land,  whether  made  in  the  exercise  of  general  isgl^sla,'  §  ss. 

3  equity  jurisdiction  or  in  the  exercise  of  jurisdiction  conferred  by  statute,  ^'  ^'  ^^^'  ^  **' 

4  may  be  registered  in  the  same  manner  as  a  judgment  at  law.    But  every 

5  court  making  such  a  decree  shall,  upon  application  of  the  plaintiff  or 

6  petitioner,  order  any  parties  before  it  to  execute  for  registration  any 

7  deed  or  instrument  necessary  to  give  effect  to  its  decree,  and  may  require 

8  the  registered  owner  to  deliver  his  duplicate  certificate  to  the  plaintiff 

9  or  petitioner  to  be  cancelled  or  to  have  a  memorandum  entered  upon  it 

10  by  the  assistant  recorder.    If  the  person  recjuired  to  execute  any  deed  or 

1 1  other  instrument  for  the  purpose  of  giving  effect  to  the  decree  is  absent 

12  from  the  commonwealth,  or  is  a  minor,  or  insane,  or  for  any  reason  is  not 

13  amenable  to  the  process  of  the  court,  it  may  appoint  a  trustee  to  execute 

14  such  instrument,  which,  when  executed,  shall  be  registered  and  shall  have 

15  full  force  and  effect  to  bind  the  land  to  be  affected  thereby. 

1  Section  92.     In  proceedings  for  partition  of  registered  land,  or  for  Proceedings 

2  the  assignment  in  fee  of  registered  land  claimed  by  husband  or  wife  by  ?or ^partition' 

3  statutory  right,  after  the  entry  of  the  final  decree  and  the  acceptance  of  fggg  5g2_  §  gs 

4  the  report  of  the  commissioners,  a  copy  of  the  decree  and  of  the  return  f^^-  l^f  1 1^- 

5  of  the  commissioners,  certified  by  the  register,  shall  be  filed  and  registered ; 

6  and  thereupon,  if  the  land  is  set  off  to  the  owners  in  severalty,  any  owner 

7  shall  be  entitled  to  have  a  certificate  entered  of  the  share  set  off'  to  him 

8  in  severalty,  and  to  receive  an  owner's  duplicate  therefor.    If  the  land 

9  lies  in  two  or  more  registry  districts,  only  so  much  of  the  decree  or  return 

10  need  be  filed  and  registered  in  any  district  as  relates  to  the  land  in  that 

11  district.    If  the  land  is  ordered  by  the  court  to  be  sold,  the  purchaser  or 


2124  KEGISTRATION   OF  TITLE  TO   L.\ND.  [ChAP.    185. 

his  assigns  shall  have  a  certificate  of  title  entered  to  him  or  them  upon  12 

presenting  the  deed  of  the  commissioners  for  registration;   but  any  new  13 

certificate  entered  in  pursuance  of  partition  proceedings,  whether  by  14 

set-off  or  sale,  shall  contain  a  reference  to  the  final  decree  of  partition,  15 

and  shall  be  conclusive  as  to  the  title  to  the  same  extent  and  against  the  16 

same  persons  as  such  decree  is  made  conclusive  by  the  laws  applicable  17 

thereto.     A  person  holding  such  certificate  or  a  transfer  thereof  may  IS 

petition  the  court  at  any  time  to  cancel  the  memorandum  relative  to  such  19 

decree,  and  the  court,  after  notice  and  a  hearing,  may  grant  the  petition.  20 

Such  certificate  shall  thereafter  be  conclusive  in  the  same  manner  and  21 

to  the  same  extent  as  other  certificates  of  title.  22 

prif/rSs-"  "'  Section  93.  If  a  certified  copy  of  a  decree  for  partition  and  of  the  1 
orTelse'^th^^  retuTU  of  the  commissioners  is  presented  for  registration,  and  if  a  mortgage  2 
"^artftlo"         or  lease  aft'ecting  a  specific  portion  or  an  undivided  share  of  the  premises    3 

1898. 562. 1 87.  had  prcvlously  been  registered,  the  tenant  claiming  under  the  mortgagor  4 
or  lessor  shall  cause  the  mortgage  or  lease  and  any  duplicate  certificate  5 
of  title  issued  to  the  mortgagee  or  lessee  to  be  again  presented  for  regis-  6 
tration,  and  the  assistant  recorder  shall  endorse  on  each  a  memorandum  7 
of  such  partition  and  a  description  of  the  land  set  off  in  severalty  on  which  8 
such  mortgage  or  lease  remains  in  force.  Such  tenant  shall  not  be  en-  9 
titled  to  receive  his  own  duplicate  certificate  of  title  until  such  mortgage  10 
or  lease  has  been  so  presented  for  registration.  11 

BANKRUPTCY  AND   INSOLVENCT. 

of^otice*oT  Section  94.     Such  notices  in  insolvency  and  copies  of  decrees  in  1 

insolvency.        bankruptcy  as  are  required  in  the  case  of  unregistered  land  to  be  recorded,  2 

1898. 562. 1 88.  shall,  if  the  debtor  owns  registered  land,  be  filed  with  the  assistant  re-  3 
corder  and  registered.  4 

An  assignee  in  insolvency  or  trustee  in  bankruptcy  shall  be  entitled  5 

to  the  entry  of  a  new  certificate  of  registered  land  of  the  debtor  or  bank-  6 

rupt  upon  presenting  and  filing  a  certified  copy  of  the  assignment  in  7 

insolvency  or  decree  of  adjudication  in  bankruptcy  with  the  insolvent's  8 

or  bankrupt's  duplicate  certificate  of  title;  but  the  new  certificate  shall  9 

state  that  it  is  entered  to  him  as  assignee  in  insolvency  or  trustee  in  10 

bankruptcy.  1 1 

§^harg^°c°c°^       Section  95.     If  proceedings  in  insolvency  or  bankruptcy  against  a  1 

R  ^L  128  I  is'  registered  owner,  of  which  notice  has  been  registered,  are  vacated  by  2 

decree,  or  if  the  court  of  insolvency  or  bankruptcy  grants  a  discharge  in  3 

composition  proceedings  and  orders  a  reconveyance  of  land  to  the  debtor,  4 

or  bankrupt,  a  certified  copy  of  the  decree,  or  of  such  discharge  and  order,  5 

may  be  filed  and  registered.    If  a  new  certificate  has  been  entered  in  the  6 

name  of  the  assignee  in  insolvency  or  trustee  in  bankruptcy  as  registered  7 

owner,  the  debtor  or  bankrupt  shall  be  entitled  to  the  entry  of  a  new  cer-  8 

tificate  in  his  name,  and  the  certificate  of  the  assignee  or  trustee  shall  9 

be  surrendered.  10 

REVERTER. 

upon  reverter*       Section  96.     If  land  taken  for  a  public  use  reverts  by  operation  of  1 

1898? 562,  §  91.  law  to  the  owner  from  whom  it  was  taken  or  to  his  heirs  or  assigns,  the  2 

R.  L.  128.  §  90.  court,  upon  petition  of  the  person  entitled  to  the  benefit  of  the  reversion,  3 

after  notice  and  a  hearing,  may  order  the  entry  of  a  new  certificate  of  4 

title  to  him.  5 


Ch.\P.    185.]  REGISTRATION   OF  TITLE  TO   L.\ND.  2125 


TRANSFER   BY   DESCENT   AND    DEVISE. 

1  Section  97.     Upon  the  death  of  a  registered  owner,  his  heirs  at  law  Transfer  by 

2  or  devisees,  after  twenty  days  from  the  granting  of  letters  testamentary  defj™'  °' 

3  or  of  administration,  or  in  case  of  an  appeal,  at  any  time  after  the  entry  ^^f;  ^2!',  1 91! 

4  of  a  final  decree,  may  file  a  certified  copy  of  the  final  decree  of  the  probate  ^^'^'  "• 

5  court  and  of  the  will,  if  any,  with  the  assistant  recorder,  and  make  appli- 

6  cation  for  the  entry  of  a  new  certificate.-   The  court  shall  issue  notice  to 

7  the  executor  or  administrator  and  to  all  other  persons  in  interest,  and  may 

8  also  give  notice  by  publication  in  such  newspaper  or  newspapers  as  it 

9  may  consider  proper,  to  all  whom  it  may  concern,  and,  after  a  hearing, 

10  may  direct  the  entry  of  a  new  certificate  or  certificates  to  the  persons 

11  entitled  as  heirs  or  devisees.    Any  new  certificate  so  entered  before  the 

12  final  settlement  of  the  estate  of  the  deceased  owner  in  the  probate  court 

13  shall  state  expressly  that  it  is  entered  by  transfer  from  the  last  certificate 

14  by  descent  or  devise,  and  that  the  estate  is  in  process  of  settlement.    After 

15  the  final  settlement  of  the  estate,  or  after  the  time  allowed  for  bringing 

16  an  action  against  an  executor  or  administrator  by  creditors  of  the  de- 

17  ceased,  the  heirs  at  law  or  de\isees  may  petition  the  court  for  an  order  to 

18  cancel  the  memorandum  upon  their  certificate,  stating  that  the  estate  is 

19  in  course  of  settlement,  and  the  court,  after  notice  and  a  hearing,  may 

20  grant  the  petition;  but  the  liability  of  heirs  or  devisees  of  registered  land 

21  for  claims  against  the  estate  of  the  deceased  shall  not  in  any  way  be 

22  diminished  or  changed. 

1  Section  98.     This  chapter  shall  not  affect  or  impair  the  jurisdiction  Executor's 

2  of  the  probate  court  to  license  an  executor,  administrator,  guardian  or  "tc  .Vnafec'ted. 

3  conservator  to  sell  or  mortgage  registered  land  for  any  purpose  for  which  ^^t.  ill.  1 92! 

4  a  license, may  be  granted  in  the  case  of  unregistered  land.    The  pur-  isis, 23, §1. 

5  chaser  or  mortgagee  taking  a  deed  in  pursuance  of  such  license  shall  be 

6  entitled  to  a  new  certificate  of  title,  or  memorandum  of  registration. 

ASSURANCE   FUND. 

1  Section  99.     Upon  original  registration,  and  also  upon  the  entry  of  f^^^j^""'^^ 

2  a  certificate  under  section  ninety-seven,  there  shall  be  paid  to  the  re-  J^ss,  S62, 1 94. 

3  corder  one  tenth  of  one  per  cent  of  the  assessed  value  of  the  land,  on  i905,'  249,'  §  3. ' 

4  the  basis  of  the  last  assessment  for  municipal  taxation,  or,  in  case  of  the      p-   •    •    • 

5  registration  of  an  easement  or  right,  one  tenth  of  one  per  cent  of  the 

6  value  thereof  as  found  by  the  court,  as  an  assurance  fund. 

1  Section  100.     All  money  received  by  the  recorder  under  the  preceding  Custody  and 

2  section  shall  be  paid  to  the  state  treasurer,  who  shall  keep  it  invested,  S^fifnd!''"' 

3  with  the  advice  and  approval  of  the  governor  and  council,  and  shall  make  ^^l;  i|g  |  H 

4  an  annual  report  of  the  condition  and  income  thereof.        4  Op.  a.  g.  is. 

1  Section  101.    A  person  who,  without  negligence  on  his  part,  sustains  Action  for 

2  loss  or  damage,  or  is  deprived  of  land  or  of  any  estate  or  interest  therein  f  °o'm  fund''"" 

3  after  the  original  registration  of  land,  by  the  registration  of  another  Jj*'^l!  ill'  1 95! 

4  person  as  owner  of  such  land  or  of  any  estate  or  interest  therein,  through  ^-^  ^'''*^-  *®- 

5  fraud  or  in  consequence  of  any  error,  omission,  mistake  or  misdescription 

6  in  any  certificate  of  title  or  in  any  entry  or  memorandum  in  the  registra- 

7  tion  book,  may  recover  in  contract  in  the  superior  court  compensation 

8  for  such  loss  or  damage  or  for  such  land  or  estate  or  interest  therein 


2126 


REGISTRATION   OF  TITLE  TO   L_\XD. 


[ClLiP.    185. 


from  the  assurance  fund;    but  a  person  so  deprived  of  land  or  of  any  9 

estate  or  interest  therein,  having  a  right  of  action  or  other  remedy  for  10 

the  recovery  of  such  land,  estate  or  interest,  shall  exliaust  such  remedy  11 

before  resorting  to  the  action  of  contract  herein  provided.    This  section  12 

shall  not  depri\"e  the  plaintiff  of  any  action  of  tort  which  he  may  have  13 

against  any  person  for  such  loss  or  damage  or  deprivation  of  land  or  of  any  14 

estate  or  interest  therein.    But  if  the  plaintiff"  elects  to  piu-sue  liis  remedy  15 

in  tort,  and  also  brings  an  action  of  contract  under  this  chapter,  the  action  16 

of  contract  shall  be  continued  to  await  the  result  of  the  action  of  tort.  17 


Action  against 
treasurer. 


224  Mass.  16. 


Section  102.  If  such  action  of  contract  is  brought  to  recover  for  1 
1898, 56|,  1 97.  jQgg  Qj.  damage  or  for  deprivation  of  land  or  of  any  estate  or  interest  2 
therein  arising  wholly  through  fraud,  negligence,  omission,  mistake  or  3 
misfeasance  of  the  recorder,  assistant  recorder  or  of  any  of  the  examiners  4 
of  title,  in  the  performance  of  executive  or  ministerial  duties,  or  of  any  5 
of  the  assistants  or  clerks  of  the  recorder,  in  the  performance  of  their  6 
respective  duties,  the  action  shall  be  brought  against  the  state  treasurer  7 
as  sole  defendant.  If  such  action  is  brought  to  recover  for  loss  or  damage  S 
or  deprivation  of  land  or  of  any  estate  or  interest  therein  arising  whoUy  9 
through  fraud,  negligence,  omission,  mistake  or  misfeasance  of  some  10 
person  other  than  the  recorder,  assistant  recorder  or  the  other  officers  11 
and  assistants  above  named,  or  arising  jointly  through  the  fraud,  negli-  12 
gence,  omission,  mistake  or  misfeasance  of  such  other  person  and  the  13 
recorder,  assistant  recorder  or  other  officers  and  assistants  above  named,  14 
such  action  shall  be  brought  against  both  the  state  treasurer  and  such  15 
other  person,  as  joint  defendants.  16 


R.  L.  128,  §  97. 


hot^Stfsfied  Section  103.  If  there  are  defendants  other  than  the  state  treasm-er 
1898. 5fi2. 1 98.  and  judgment  is  entered  for  the  plaintiff  against  the  state  treasurer  and 
against  any  of  the  other  defendants,  execution  shall  issue  against  such 
other  defendants  and  be  lewd  upon  them.  If  the  execution  is  returned 
unsatisfied  in  whole  or  in  part,  and  the  officer  returning  the  same  certi- 
fies that  the  amount  due  cannot  be  collected  from  the  land  or  goods 


of  such  other  defendants,  a  justice  of  the  superior  com-t  shall  direct  the 
clerk  to  certify  the  amoimt  due  on  the  execution  to  the  state  auditor, 
who  shall  thereupon  audit  and  certify  the  amoimt  of  the  execution  in  the 
same  maimer  as  claims  against  the  commonwealth,  and  the  state  treasurer  10 
shall  pay  the  amount  out  of  the  assurance  fund,  ■without  any  further  act  1 1 
or  resolve  making  an  appropriation  therefor.  12 

If  judgment  in  such  action  cannot  for  any  reason  be  entered  against  13 
any  of  the  other  defendants  it  may  be  entered  against  the  state  treasurer  14 
alone,  or,  if  it  cannot  be  entered  against  all  the  other  defendants,  it  15 
may  be  entered  against  him  and  such  of  the  other  defendants  as  are  16 
found  liable,  and  against  whom  judgment  can  lawfully  be  entered.  17 

If  judgment  is  entered  against  the  state  treasurer  alone,  the  justice  of  18 
the  superior  court  before  whom  the  action  is  tried  shall  direct  the  clerk  19 
to  transmit  to  the  state  auditor  a  certificate  of  the  entry  of  judgment  and  20 
of  the  amount  due,  and  the  state  treasurer  shall  pay  the  same  upon  the  21 
certificate  of  the  state  auditor,  as  aboAe  pro^"ided.  22 


asTtSi^ce^und  Section  104.  If  the  assurance  fund  at  any  time  is  not  sufficient  1 
i898,'M2,™'99.  *°  ineet  the  amount  called  for  by  such  certificate  of  the  state  auditor  the  2 
R.  L.  128,  §  98.  state  treasurer  shall  make  up  the  deficiency  from  any  funds  in  the  treasury     3 


CkAF.    1S5.]  REGISTRATION   OF  TITLE  TO   L.\ND.  2127 

4  not  otiierwise  appropriated;   and,  in  such  case,  any  amounts  thereafter 

5  received  by  the  state  treasurer  on  account  of  the  assiu'ance  fund  shall  be 

6  transferred  to  the  general  funds  of  the  treasury,  until  the  amount  paid 

7  on  account  of  the  deficiencj'  shall  have  been  made  up. 

1  Section  105.     In  every  case  where  pajTnent  has  been  made  by  the  subrogation  of 

2  state  treasm-er  under  section  one  hundred  and  three,  the  commonwealth  to  nSimSrs 

3  shall  be  subrogated  to  the  rights  of  the  plaintiff  against  any  other  parties  isQs.^sei!'^''' 

4  or  securities,  and  the  state  treasurer  shall  enforce  the  same,  and  the  ^.^^128,  §  99. 

5  amounts  recovered  shall  be  placed  to  the  account  of  the  assurance  fund. 

1  Section  106.    The  income  of  the  assurance  fund  shall  be  added  to  Assurance 

2  the  principal  and  invested ;  except  that  whenever  said  fund  amounts  to  timi  oHncome. 

3  two  hundred  thousand  dollars  the  income  thereof  shall  be  used  to  de-  R.^Llils',^'*^'' 

4  fray,  as  far  as  may  be,  the  expenses  of  the  administration  of  this  chapter.  |  Qpj^  q  jg 

1  ■     Section  107.    The  assurance  fund  shall  not  be  liable  for  any  loss,  when  fund 

2  damage  or  deprivation  occasioned  by  a  breach  of  trust,  whether  express,  L^ifof'^' 

3  implied  or  constructive,  by  any  registered  owner  who  is  a  trustee,  or  by  ilgs^'sfif''"''' 

4  the  improper  exercise  of  any  power  of  sale  in  a  mortgage,  nor  shall  any  fsgg^ios. 

5  plaintiff  recover  in  contract  as  compensation  under  this  chapter  more  Pjof^"*' 

6  than  the  fair  market  value  of  the  land  at  the  time  when  he  suffered 

7  the  loss,  damage  or  deprivation  thereof. 


1  Section  108.     Actions    of    contract    for    compensation    under    this  Limitation, 

2  chapter  by  reason  of  any  loss  or  damage  or  deprivation  of  land  or  any  is9s,°so2, '°° 

3  estate  or  interest  therein  shall  be  begun  within  six  years  after  the  cause  r^l^i28, 

4  of  action  accrued ;  but  the  plaintiff  in  an  action  for  the  recovery  of  the  ^  '°- 

5  land  or  estate  or  interest  therein  in  accordance  with  section  one  hundred 

6  and  two  may  bring  the  action  of  contract  for  compensation  within  one 

7  year  after  the  termination  of  such  action.    Said  action  of  contract  shall 

8  survive  to  the  personal  representative  of  the  registered  owner,  unless 

9  barred  in  his  lifetime;  but  the  proceeds  thereof  shall  be  treated  as  real 
10  estate. 

1  Section  109.     In  any  action  to  recover  damages  for  loss  or  damage  Assessors- 

2  or  deprivation  of  land,  or  of  any  estate  or  interest  therein,  by  the  regis-  be  cridence" 

3  tration  of  another  person  as  owner  of  such  land,  or  of  any  estate  or  in-  i^i^'^'*  • 

4  terest  therein,  the  assessed  valuation  for  taxation  of  the  land,  or  of  the 

5  estate  or  interest,  if  assessed  separately,  for  the  three  years  preceding 

6  the  loss,  damage  or  deprivation  may  be  introduced  by  any  party  as 

7  evidence  of  the  fair  market  value  of  such  land,  estate  or  interest;   but 

8  if  the  valuation  for  any  one  year  is  so  introduced,  the  valuations  for 

9  all  three  years  shall  be  introduced. 

powers  of  attorney. 

1  Section  110.    Any  person  may,  by  attorney,  procure  land  to  be  Powers  of 

2  registered  and  convey  or  otherwise  deal  with  registered  land,  but  the  is98."5U2, 

3  letters  of  attorney  shall  be  acknowledged  and  filed  with  the  recorder  r'u  12s, 

4  or  the  assistant  recorder  of  the  proper  registry  district  and  registered.  ^  '°^- 

5  Any  instrument  revoking  such  letter  shall  be  acknowledged  and  regis- 

6  tered  in  like  manner. 


2128 


REGISTRATION   OF  TITLE  TO   L.UsD. 


[ClL^.    185. 


Lost  duplicate 
certificates. 
189S,  562, 
§  105. 
R.  L.  128. 
5  104. 


LOST  DUPLICATE   CERTIFICATES. 

Section  111.  If  a  duplicate  certificate  is  lost  or  destroyed,  or  cannot  1 
be  produced  by  a  grantee,  heir,  devisee,  assignee  or  other  person  applying  2 
for  the  entry  of  a  new  certificate  to  him  or  for  the  registration  of  any  3 
instrument,  a  suggestion  of  the  fact  of  such  loss  or  destruction  may  be  4 
filed  by  the  registered  owner  or  other  person  in  interest  and  registered.  5 
The  court  may  thereupon,  upon  the  petition  of  the  registered  owner  or  6 
other  person  in  interest,  after  notice  and  a  hearing,  direct  the  issue  of  7 
a  new  duplicate  certificate,  which  shall  contain  a  memorandum  of  the  8 
fact  that  it  is  issued  in  place  of  a  lost  duplicate  certificate,  but  shall  in  9 
all  respects  be  entitled  to  like  faith  and  credit  as  the  original  duplicate,  10 
and  shall  thereafter  be  regarded  as  the  original  duplicate  for  all  the  11 
purposes  of  this  chapter.  12 


Adverse 

claims. 

1898,  562, 

§106. 

R.  L  128, 

§  105. 

234  Mass.  288. 


ADVERSE   CLAIMS. 

Section  112.  WTioever  claims  any  right  or  interest  in  registered  land  1 
adverse  to  the  registered  owner  arising  after  the  date  of  original  regis-  2 
tration  may,  if  no  other  provision  is  made  in  this  chapter  for  registering  3 
the  same,  make  a  written  statement  setting  forth  fully  his  alleged  right  4 
or  interest,  and  how  or  under  whom  it  was  acquired,  and  a  reference  to  5 
the  volume  and  page  of  the  certificate  of  title  of  the  registered  owner,  and  6 
a  description  of  the  land  in  which  the  right  or  interest  is  claimed.  The  7 
statement  shall  be  signed  and  sworn  to,  and  shall  state  the  adverse  claim-  8 
ant's  residence,  and  designate  a  place  where  all  notices  may  be  served  9 
upon  him.  This  statement  shall  be  entitled  to  registration  as  an  adverse  10 
claim,  and  the  court,  upon  the  petition  of  any  party  in  interest,  shall  11 
grant  a  speedy  hearing  upon  the  validity  of  such  adverse  claim,  and  shall  12 
enter  such  decree  thereon  as  justice  and  equity  may  require.  If  the  13 
claim  is  adjudged  to  be  invalid,  the  registration  shall  be  cancelled.  If  14 
the  court,  after  notice  and  a  hearing,  finds  that  a  claim  thus  registered  15 
was  frivolous  or  vexatious,  it  may  tax  the  adverse  claimant  double  costs.  16 


Surrender  of 

duplicate 

certificates. 

1898.  562, 

§  107. 

E.  L.  12S, 

5106. 


SURRENDER   OF  DUPLICATE   CERTIFICATES. 

Section  113.     If  the  recorder  or  any  assistant  recorder  is  requested  1 

to  enter  a  new  certificate  in  pursuance  of  an  instrument  purporting  to  2 

be  executed  by  the  registered  owner,  or  by  reason  of  any  instrument  or  3 

proceedings  which  divest  the  title  of  the  registered  owner  against  his  4 

consent,  and  the  outstanding  owner's  duplicate  certificate  is  not  pre-  5 

sented  for  cancellation  when  such  request  is  made,  the  recorder  or  assist-  6 

ant  recorder  shall  not  enter  a  new  certificate,  but  the  person  claiming  to  7 

be  entitled  thereto  may  apply  by  petition  to  the  court.    The  court,  after  a  8 

hearing,  may  order  the  registered  owner  or  any  person  withholding  the  9 

duplicate  certificate  to  surrender  it,  and  direct  the  entry  of  a  new  cer-  10 

tificate  upon  such  surrender.     If  the  person  withholding  the  duplicate  11 

certificate  is  not  amenable  to  the  process  of  the  court,  or  if  for  any  reason  12 

the  outstanding  owner's  duplicate  certificate  cannot  be  delivered  up,  13 

the  court  may  by  decree  annul  it  and  order  a  new  certificate  of  title  to  be  14 

entered.    Such  new  certificate  and  all  duplicates  thereof  shall  contain  a  15 

memorandum  of  the  annulment  of  the  outstanding  duplicate.  16 

If  an  outstanding  mortgagee's  or  lessee's  duplicate  certificate  is  not  17 

produced  and  surrendered  when  the  mortgage  is  discharged  or  extin-  18- 


ClL\P.    1S5.]  REGISTRATION   OF  TITLE  TO   L.VND.  2129 

19  guished  or  the  lease  is  terminated,  like  proceedings  may  be  had  to  obtain 

20  registration  as  in  the  case  of  the  non-production  of  an  owner's  duplicate. 

AMENDMENT   AND   ALTERATION  VDF   CERTIFICATES    OF   TITLE. 

1  Section  114.     No  erasure,  alteration  or  amendment  shall  be  made  Amendment, 

2  upon  the  registration  book  after  the  entry  of  a  certificate  of  title  or  of  a  certificates. 
.3  memorandum  thereon  and  the  attestation  of  the  same  by  the  recorder  or  j^fog.*''^' 

4  an  assistant  recorder,  except  by  order  of  the  court.    A  registered  owner  ?-,ni^^^' 

5  or  other  person  in  interest  may  apply  by  petition  to  the  court  upon  the  230  Mass.  i-r.. 

6  ground  that  registered  interests  of  any  description,  whether  vested,  con- 

7  tingent,  expectant  or  inchoate,  have  terminated  and  ceased;  or  that  new 

8  interests  not  appearing  upon  the  certificate  have  arisen  or  been  created; 

9  or  that  any  error  or  omission  was  made  in  entering  a  certificate  or  any 

10  memorandum  thereon,  or  on  any  duplicate  certificate;  or  that  the  name  _ 

11  of  any  person  on  the  certificate  has  been  changed;  or  that  the  registered 

12  owner  has  married,  or  if  registered  as  married,  that  the  marriage  has 

13  been  terminated;    or  that  a  corporation  which  owned  registered  land 

14  and  has  been  dissolved  has  not  conveyed  the  same  within  three  years  after 

15  its  dissolution;    or  upon  any  other  reasonable  ground;    and  the  court 

16  may  hear  and  determine  the  petition  after  notice  to  all  parties  in  interest, 

17  and  may  order  the  entry  of  a  new  certificate,  the  entry  or  cancellation  of 

18  a  memorandum  upon  a  certificate,  or  grant  any  other  relief  upon  such 

19  terms,  requiring  security  if  necessary,  as  it  may  consider  proper;    but 

20  this  section  shall  not  authorize  the  court  to  open  the  original  decree  of 

21  registration,  and  nothing  shall  be  done  or  ordered  by  the  court  which 

22  shall  impair  the  title  or  other  interest  of  a  purchaser  holding  a  certificate 

23  for  value  and  in  good  faith,  or  his  heirs  or  assigns,  without  his  or  their 

24  written  consent. 

PETITIONS,  MOTIONS  AND   NOTICES   AFTER   REGISTR.'^TION. 

1  Section  115.     Petitions  and  motions  filed  under  this  chapter  after  Filing  of  peti- 

2  original  registration  shall  be  filed  and  entitled  in  the  original  case  in  mo^fonslfter 

3  which  the  decree  of  registration  was  entered.  registration. 

1S98,  562,  §  108.  R.  L.  128.  §  107. 

1  Section  116.     All  notices  required  by  or  given  under  this  chapter  by  Service  of 

2  the  recorder  or  any  assistant  recorder,  after  original  registration,  shall  ^Ri'sTration. 

3  be  mailed  to  the  person  to  be  notified  at  the  residence  and  post  office  ad-  §*j'o9.^'^^' 

4  dress  stated  in  the  certificate  of  title,  or  in  any  registered  instrument  ?ia§^^*' 

5  under  which  he  claims  an  interest,  in  the  office  of  the  recorder  or  assistant 

6  recorder,  relating  to  the  parcel  of  land  in  question. 

7  All  notices  and  citations  directed  by  special  order  of  the  court  under 

8  this  chapter,  after  original  registration,  may  be  served  in  tlie  manner 

9  above  stated,  and  the  certificate  of  the  recorder  shall  be  conclusive  proof 

10  of  such  service;  but  the  court  may  in  any  case  order  different  or  further 

1 1  service,  by  publication  or  otherwise. 

sectional  plans. 

1  Section  117.     The  court  may  make  sectional  plans  sho-wing  regis-  Sctionai plana 

2  tered  lands,  and  in  so  doing  mav  employ  competent  draftsmen  autl  meUt  ofassist- 

3  assistants.  "    101S,223,§2.  ance  therefor. 


2130 


ESTATES   FOR  YE.VRS   AND   AT  WILL. 


[CiLAP.    186. 


Penalty  for 
fraudulent 
conveyance. 
1898.  5fi2, 
§  115. 
R.  L.  128, 
S  110. 


PENALTi'. 

Section  118.  Whoever,  with  intent  to  defraud,  sells  and  conveys 
registered  land,  knowing  that  an  undischarged  attachment  or  any  other 
encumbrance  exists  thereon  not  noted  by  memorandum  on  the  duplicate 
certificate  of  title,  without  informing  the  grantee  of  such  attachment  or 
other  encumbrance  before  the  consideration  is  paid,  shall  be  punished 
by  imprisonment  in  the  state  prison  for  not  more  than  tliree  years  or 
in  jail  for  not  more  than  one  year. 


REFERENCES. 

Provisions  as  to  eminent  domain,  Chap.  79,  §  4. 

Appointment  of  additional  officers  in  Worcester  county  who  may  be  assigned  to 
attend  sessions  of  the  land  court,  Chap.  221,  §  70. 

§  37.     Fees  of  examiner  under  this  section,  Chap.  262,  §  39. 

§§  86,  87,  91.  Effect  of  registering  decree  of  court  where  no  conveyance  is  made 
pursuant  to  the  decree,  Chap.  183,  §  44. 


CHAPTER     186 


ESTATES   FOR  YEARS   AND   AT   WILL. 


Sect. 

1.  Estates  for  long  term  of  years  deemed 

estates  in  fee  simple. 

2.  PajTnents  when   curtesy   or   dower   is 

assigned  out  of  such  estate. 

3.  Liability  of  tenant  at  sufferance  for  rent. 

4.  Liability  of  tenant  for  rent  of  part  of 

land  demised. 
6.  Form  of  action  to  recover  rent.     Evi- 
dence. 


Sect. 

6.  Survival  of  action  for  rent. 

7.  Application  of  certain  sections. 

8.  Recovery  of  apportionment  of  rent. 

9.  Recovery  of  rent  paid  in  advance. 

10.  Rent  deemed  necessaries. 

11.  Termination  of  lease  by  notice  to  quit 

for  non-payment  of  rent. 

12.  Termination    of    tenancy    at    will    by 

notice  to  quit. 


Estates  for 
long  term  of 
years  deemed 
estates  in  fee 
simple. 
1834,  162, 
§§1.2.         . 
E.  S.  60, 
§§  18,  19. 
G.  S.  90, 
§§  20,  21. 
P.  S.  121,  §  1. 
R.  L.  129,  §  1. 
1915.  23,  §  1. 
5  Mass.  419. 
112  Mass.  247. 
178  Mass.  76. 


Section  1.     If  land  is  demised  for  the  term  of  one  hundred  years  or  1 

more,  the  term  shall,  so  long  as  fifty  years  thereof  remain  unexpired,  be  2 

regarded  as  an  estate  in  fee  simple  as  to  every  thing  concerning  the  3 

descent  and  devise  thereof,  upon  the  decease  of  the  owner,  the  right  of  4 

dower  or  of  curtesy  therein,  the  sale  thereof  by  executors,  administrators,  5 

guardians,  conserA'ators  or  trustees,  the  levy  of  execution  thereon,  and  6 

the  redemption  thereof  if  mortgaged  or  taken  on  execution;   and  who-  7 

ever  holds  as  lessee  or  assignee  under  such  a  lease  shall,  so  long  as  fifty  S 

years  of  the  term  remain  unexpired,  be  regarded  as  a  freeholder  for  all  9 

purposes.  10 


Payments 
when  curtesy 
or  dower  is 
assigned  out  of 
such  estate. 
1834,  1(52,  §  3. 
R.  S.  60,  §  20. 


Section  2.     If  curtesy  or  dower  is  assigned  out  of  such  lantl,  the  1 

husband  or  widow  and  his  or  her  assigns  shall  pay  to  the  owner  of  the  2 

unexpired  residue  of  the  term  one  third  of  the  rent  reserved  in  the  lease  3 

under  which  the  wife  or  husband  held  the  term.  4 


G.S.  90,  §  22 


P.  S.  121,  ! 


R.  I,.  129, 


Liability  of 

tenant  at 

sufferance  for 

rent. 

G.  S.  90.  §  25. 


Section  3.  Tenants  at  sufferance  in  possession  of  land  or  tenements  1 
shall  be  liable  to  pay  rent  therefor  for  such  time  as  they  may  occupy  or  2 
detain  the  same.  p.  s.  121,  §  3.  r.  l.  129,  §  3.  3 


4  Gush.  42. 
1  Allen,  217. 
10  Allen,  260. 


105  Mass.  486. 
132  Mass.  346. 
134  Mass.  2S3. 


156  Mass.  209. 
ISl  Mass.  218. 
ISO  Mass.  246. 


202  Mass.  26. 
229  Mass.  576. 
232  Mass.  479. 


Chap.  186.]  est.\tes  for  yexus  and  at  \vill.  2131 

1  Section  4.     A  person  in  possession  of  land  out  of  which  rent  is  due  LiabUity  of 

2  shall  be  liable  for  the  amount  or  proportion  of  rent  due  from  the  land  in  0!"?^^  oTiLnd' 

3  his  possession  although  it  is  only  a  part  of  that  originally  demised.  demised. 

R.  S.  60,  §  22.  R.  L.  129,  §  4.  2  Met.  505. 

G.  S.  90,  §  24.  17  Mass.  439.  S  Gray,  204. 

P.  S.  121,  §  4.  22  Pick.  565. 

1  Section  5.     Such  rent  mav  be  recovered  in  contract,  and  the  deed  form  of  action 

p.,  ,  .  ."  .„  1.1  ..  r»  to  recover  rent. 

2  of  demise  or  other  written  instrument,  if  any,  showing  the  provisions  of  ?,^o's^Sq°5  ^ 

3  the  lease,  may  be  used  in  evidence  by  either  party  to  prove  the  amount  R."s.'60.'§  23. 

4  of  rent  due  from  the  defendant.  g.  s.  90,  §  26. 

p.  S.  121,  §5.  R.  L.  129,  §5.  115  Mass.  367. 

1  Section  6.     Such  action  may  be  brought  by  or  against  executors  and  act'io'n  f!)r°rent 

2  administrators  for  any  arrears  of  rent  accrued  in  the  lifetime  of  the  de-  }?2o,s9,§5 

3  ceased  parties,  respectively,  in  the  same  manner  as  tor  debts  due  from  o.  s.  90,  §  27. 

4  or  to  the  same  parties  in  their  lifetime  on  a  personal  contract.  r'.  l.  129,  §  6. 

1  Section  7.    The  sbc  preceding  sections  shall  not  deprive  landlords  Appiicatioii  of 

2  of  any  other  legal  remedy  for  the  recovery  of  rents,  whether  secured  by  ii"s!'6o,''f a™'' 

3  lease  or  by  law.  g.  s.  90,  §28.  ?.  s.  i2i,§7.  r.  l.  129,  §7. 

1  Section  8.     If  land  is  held  by  lease  of  a  person  having  an  estate  Recovery  of 

2  therein  determinable  on  a  life  or  on  a  contingency,  and  such  estate  de-  of?ent'°''™''°' 

3  termines  before  the  end  of  a  period  for  which  rent  is  payable,  or  if  an  jf^i^^***' 

4  estate  created  by  a  written  lease  or  an  estate  at  will  is  determined  before  ^  f  '■^^^  §  ^^ 

5  the  end  of  such  period  by  surrender,  either  express  or  by  operation  of  3  Cush.  200. 

6  law,  by  notice  to  quit  for  non-payment  of  rent,  or  by  the  death  of  any  6Aiien!2i5! 

7  party,  the  landlord  or  his  executor  or  administrator  may  recover  in  i32m^33:346: 

8  contract,  a  proportional  part  of  such  rent  according^  to  the  portion  of  HI  mHI'.  lla. 

9  the  last  period  for  which  such  rent  was  accruing  which  had  expired  at  222  Mass.  327. 
10  such  determination. 

1  Section  9.     If,  upon  the  determination  of  a  tenancy,  in  any  manner  Recovery  of 

2  mentioned  in  the  preceding  section,  before  the  end  of  a  period  for  which  advance"^ '" 

3  rent  is  payable,  the  rent  therefor  has  been  paid  before  such  determina-  p^i^iii^^i; 

4  tion,  a  proportionate  part  thereof,  according  to  the  portion  of  such  period  ^-  ^-  i^s.  §  9- 

5  then  unexpired,  may  be  recovered  back  in  contract. 

1  Section  10.     Debts  for  the  rent  of  a  dwelling  house  occupied  by  the  Rent  deemed 

2  debtor  or  his  family  shall  be  considered  as  claims  for  necessaries.  is59?f27°''' 

G.  S.  90,  §  29.  8  Gray,  220.  7  Allen.  264. 

p.  S.  121,  §  10.  1  Allen,  219.  12  Allen,  366. 

R.  L.  129,  §  10. 

1  Section  11.     Upon  the  neglect  or  refusal  to  pay  the  rent  due  under  Termination 

2  a  written  lease,  fourteen  days'  notice  to  quit,  given  in  writing  by  the  notfcTto^quit 

3  landlord  to  the  tenant,  shall  be  sufficient  to  determine  the  lease,  unless  J^enTSf'Jent. 

4  the  tenant,  at  least  four  days  before  the  return  day  of  the  writ,  in  an  \^y  f^l'  |  },■ 

5  action  by  the  landlord  to  recover  possession  of  the  premises,  pays  or  i^^J'qosoo. 

6  tenders  to  the  landlord  or  to  his  attorney  all  rent  then  due,  with  interest  i37,'§  3.' 

PS  I'^l   §  11 

7  and  costs  of  suit.         R.  L.  129,  §  11.         S  Cush.  2S2.  137  Mass.  13.         219  Mass.  151.  •    •    -  • 

1  Section  12.     Estates  at  will  may  be  determined  by  either  party  by  Termination 

2  three  months'  notice  in  writing  for  that  purpose  given  to  the  other  party;  wufbyuTticl 

3  and  if  the  rent  reserved  is  payable  at  periods  of  less  than  three  months,  isasl'sb,  §  4. 


2132 


EASEMENTS. 


[ClL\P.    187. 


R.  S.  60,  §  26. 
G.S.  90,  §  31. 
P.  S.  121,  §  12. 
R.  L,  129,  §  12. 
17  Mass.  282. 

1  Pick.  43. 

2  Pick.  70. 
2  Met.  29. 
13  Met.  275. 


the  time  of  such  notice  shall  be  sufficient  if  it  is  equal  to  the  interval  be-  4 

tween  the  days  of  payment;  and  in  case  of  neglect  or  refusal  to  pay  the  5 

rent  due  from  a  tenant  at  will,  fourteen  days'  notice  to  quit,  given  in  6 

writing  by  the  landlord  to  the  tenant,  shall  be  sufficient  to  determine  the  7 

tenancy.  scush.  133.  u  Cush.  93, 191.  8 


6  Gray,  224. 
11  Gray,  ISl. 

7  .A-llen.  4S7. 
14  Allen,  43. 


,  133. 

103  Mass.  154. 

107  Mass.  406. 

108  Mass.  150,  553. 
113  Mass.  531. 


126  Mass.  143. 
136  Mass.  532. 
157  Mass.  439. 
165  Mass.  351. 


172  Mass.  145. 
197  Mass.  325. 
210  Mass.  55. 
226  Mass.  430. 


REFERENCES. 

For  temporary  relief  to  tenants,  1920,538;  554;  555;  577;  578. 
§  6.     Suit  in  equity  by  legatee  or  creditor  where  e.xeeutor  or  administrator  wUl 
not  or  cannot  sue,  Chap.  230,  §  5. 


CHAPTER     187 

EASEMENTS. 


Sect. 

1.  Easements  of  light  and  air  not  to  be 

acquired  by  use. 

2.  Easements    by    prescription    only    by 

twenty  years  uninterrupted  adverse 
use. 


Sect. 

3.  Prevention  of  easement  by  notice. 

4.  Notice  as  disturbance  of  easement. 


Easements  of 
light  and  air 
not  to  be  ac- 
quired by  use. 
1852,  144. 
G.  S.  90.  §  32. 
P.  S.  122,  §  1. 


Section  1.     Whoever  erects  a  house  or  other  building  with  windows  1 

overlooking  the  land  of  another  shall  not,  by  the  mere  continuance  of  2 

such  windows,  acquire  an  easement  of  light  or  air  so  as  to  prevent  the  3 

erection  of  a  building  on  such  land.          r.  li3o,  §i.           lis  Mass.  204.  4 


Easements  by 
prescription 
only  by 
twenty  years 
uninterrupted 
adverse  use. 
R.  S.  CO,  §  27. 


Section  2.  No  person  shall  acquire  by  adverse  use  or  enjoyment  a 
right  or  privilege  of  way  or  other  easement  from,  in,  upon  or  over  the  land 
of  another,  unless  such  use  or  enjoyment  is  continued  uninterruptedly 
for  twenty  years.  g.  s.  90, 5  33.  p.  s.  122,  §  2. 


R.  L.  130.  §  2. 
2  Cush.  191. 


10  Allen,  557. 
209  Mass.  542. 


223  Mass.  544, 

224  Mass.  256. 


Prevention  of 
easement  by 
notice. 
1824,  52. 
R.  S.  60,  §  28. 
G.  S,  90.  §  34. 
1867,  302. 
P.  S.  122.  §  3. 
R.  L.  130,  §  3. 


Section  3.     If  a  person  apprehends  that  a  right  of  way  or  other  ease-  1 

ment  in  or  over  his  land  may  be  acquired  by  custom,  use  or  otherwise  by  2 

any  person  or  class  of  persons,  he  may  give  public  notice  of  his  intention  3 

to  prevent  the  acquisition  of  such  easement,  by  causing  a  copy  of  such  4 

notice  to  be  posted  in  a  conspicuous  place  upon  the  premises  for  six  sue-  5 

cessive  days,  and  such  posting  shall  prevent  the  acquiring  of  such  ease-  6 

ment  by  use  for  any  length  of  time  thereafter;  or  he  may  prevent  a  par-  7 

ticular  person  or  persons  from  acquiring  such  easement  by  causing  a  copy  8 

of  such  notice  to  be  served  upon  him  or  them  as  provided  by  law  for  the  9 

service  of  an  original  summons  in  a  civil  action.    Such  notice  from  the  10 

agent,  guardian  or  conservator  of  the  owner  of  land  shall  have  the  same  11 

effect  as  a  notice  from  the  owner  himself.    A  certificate,  by  an  officer  qual-  12 

ified  to  serve  civil  process,  that  such  copy  has  been  served  or  posted  by  13 

him  as  above  provided,  if  made  upon  the  original  notice  and  recorded  14 

with  it,  within  three  months  after  the  service  or  posting,  in  the  registry  15 

of  deeds  for  the  county  or  district  in  which  the  land  lies,  shall  be  con-  16 

elusive  evidence  of  such  service  or  posting.  17 


Ch-^p.  188.] 


HOMESTEADS. 


2133 


1  Section  4.     A  notice  given  under  the  preceding  section  sliall  be  a  Notice  as 

2  disturbance  of  the  easement  to  which  it  relates  entithng  the  person  claim-  easement*^''  "^ 

3  ing  such  easement  to  an  action  for  the  purpose  of  trying  the  right;  and  if  §;  |;  }g4;  |  J|; 

4  he  prevails,  he  shall  be  entitled  to  full  costs  although  he  recovers  only  ^-  ^  i^l^  5  4- 

5  nominal  damages. 


CHAPTER     188, 

HOMESTEADS. 


Sect. 

1.  Nature  of  homestead  estate. 

2.  Mode  of  acquisition. 

3.  Wife  or  minor  child  may  occupy  in  cer- 

tain cases. 

4.  Continuance  after  death  of  householder. 

5.  Previous  mortgage,  etc.,  unaffected. 


Sect. 

6.  Estate  subject  to  prior  mortgage. 

7.  Release  of  rights. 

8.  Sale  of  rights  of  widow,  etc. 

9.  Set-off  if  holder  insolvent. 
10.  Existing  rights  saved. 


1  Section  1.     A  householder  who  has  a  family  shall  be  entitled  to  ac-  N.itureof 

2  quire  an  estate  of  homestead  to  the  extent  of  eight  hundred  dollars  in  es""'?''^'"' 

3  value  in  the  land  and  buildings  thereon  owned  or  rightly  possessed  by  §§^i^'4*°' 

4  lease  or  otherwise  and  occupied  by  him  as  a  residence;  and  such  estate  ||^?'F^' 

5  shall  be  exempt  from  the  laws  of  conveyance,  descent  and  devise  and  isst,  298, 

6  from  attachment,  levy  on  execution  and  sale  for  the  payment  of  his  g.  s'.  ibi, 

7  debts  or  legacies,  except —  p.s.'i23, 

8  (1)  Sale  for  taxes. 
(2)  Attachment,  levy  and  sale  in  the  following  cases: 


9 

10 


_.  1,4. 
R.  L.  131, 
§§  1,4. 
1915,  28,  §  1. 

(a)  For  a  debt  contracted  previous  to  the  acquisition  of  said  estate  ?,'^;;^>'' *??;. 

„  "    '  ,  ^  ^  16  Gray,  14b. 

11  01  homestead.  sAUen,  ue. 

12  (b)  For  a  debt  contracted  for  the  purchase  thereof.  42V. ''"' 

13  (c)  Upon  an  execution  issued  from  the  probate  court  to  enforce  its    '   *""' 

14  decree  that  a  husband  pay  a  certain  amount  weekly  or  otherwise  to  laiiicn.ao. 

15  support  his  wife  or  minor  children.  loo^iiTs's^isi 

16  (d)  Where  buildings  on  land  not  owned  by  the  householder  are  at-  joi  M;'^^-  ^is- 

17  tached,  levied  upon  or  sold  for  the  ground  rent  of  the  lot  of  land  iss  m^s!  542I 

10        U  4.U  i       J  lUl  Mass.  276. 

IS  whereon  they  stand. 


10  Allen.  425. 

11  Allen,  194. 


1  Section  2.     To  acquire  such  estate  of  homestead,  the  fact  that  it  is  Mode  of 

2  designed  to  be  held  as  such  shall  be  set  forth  in  the  deed  of  conveyance  i85i|34o,°§  3. 

3  by  which  the  property  is  acquired;  or,  after  the  title  has  been  acquired,  If^'iof'ti' 

4  such  design  may  be  declared  by  a  writing  duly  signed,  sealed  and  ac-  «  f-'il^vtl 

5  knowledged  and  recorded  in  the  registry  of  deeds  for  the  county  or  6  Alien,  427.  ' 

6  district  in  which  the  property  is  situated.     The  acquisition  of  a  new 

7  estate  of  homestead  shall  defeat  and  discharge  any  such  previous  estate. 


1  Section  3.     In  a  case  in  which  the  probate  court  has  entered  a  wife  or  minoi 

2  decree  that  the  wife  is  living  apart  from  her  husband  for  justifiable  occupy  mcer- 

3  cause,  or  the  custody  of  his  minor  children  or  minor  child  has  been  jg^J^g'^ol'^^i  2 

4  decreed  to  some  person  other  than  him,  and  the  husband  owns  or  holds 

5  a  homestead  estate,  the  probate  court  may  by  its  decree  grant  to  his 

6  wife  or  minor  children,  or  to  both,  the  right  to  use,  occupy  and  enjoy 

7  such  homestead  estate  until  the  further  order  of  the  court.    The  recortl- 

8  ing  of  the  order  of  the  probate  court  granting  to  the  wife  or  minor 


2134 


HOMESTE.-VDS. 


[Ch.\p.  188. 


children,  or  to  both,  the  right  to  use,  occupy  and  enjoy  said  homestead  9 

estate,  together  with  the  description  thereof,  in  the  registry  of  deeds  10 

for  the  county  or  district  where  the  land  lies,  shall  operate  to  prevent  11 

the  husband  from  disposing  of  said  estate  until  such  time  as  the  probate  12 

court  mav  revoke  said  decree  13 


Continuance 

after  death  of 

householder. 

1851.  340.  §  2. 

1855,  23S,  §  2. 

1857,  298,  §1  2, 

14. 

G.  S.  104.  §§12, 

13. 

P.S.123.§§S.9. 

R.  L.  131, 

§§  8.  9. 

5  AHen.  77, 

146. 

8  Allen,  5*5. 

9  Allen,  239, 
242 

H  Allen,  194. 
97  Mass.  136, 
392. 


Section  4.     The  estate  of  homestead  existing  at  the  death  of  a  1 

householder  shall   continue  for  the  benefit  of  his  widow  and  minor  2 

children,  and  shall  be  held  and  enjoyed  by  them,  if  one  of  them  or  a  3 

purchaser  under  section  eight  occupies  the  premises,  until  the  youngest  4 

child  is  twenty-one  and  until  the  marriage  or  death  of  the  widow;   and  5 

if  a  widow  or  minor  children  are  entitled  to  an  estate  of  homestead  as  6 

provided  herein,  it  may  be  set  off  to  them  in  the  same  manner  as  dower.  7 

But  all  the  right,  title  and  interest  of  the  deceased  in  the  premises  in  8 

which  such  estate  exists,  except  the  estate  of  homestead  thus  continued,  9 

shall  be  subject  to  the  laws  relating  to  devise,  descent,  dower  and  sale  10 

for  the  payment  of  debts  and  legacies.                     loo  Mass.  234.  11 

131  Mass.  1S6.  44G.  HI  Mass.  187.  161  Mass.  276. 


mon°age  etc        SECTION  5.     No  estate  of  liomcstcad  shall  affect  a  mortgage,   lien     1 
"??P:?i^^v ,     or  other  encumbrance  previously  existing.       iS55, 238, 1 4.      1857, 298, is.  2 

I80I,  340,  §  5.  „  *  _  " 

G.  S.  104,  |6.  P.  S.  123.  §5.  R.  L.  131,§5. 


Estate  subject 
to  prior 
mortgage. 
G.  S.  104,  §  4. 
P.  S.  123,  §  6. 
R.L.  131,  §6. 


Section  6.     Property  which  is  subject  to  a  mortgage  executed  before  1 

an  estate  of  homestead  was  acquired  therein,  or  executed  afterward  and  2 

containing  a  release  thereof,  shall  be  subject  to  an  estate  of  homestead,  3 

except  as  against  the  mortgagee  and  those  claiming  under  him,  in  the  4 

same  manner  as  if  there  were  no  such  mortgage.     If  the  owner  of  the  5 

equity  in  such  property  redeems  the  mortgage,  he  shall  not  be  allowed  6 

to  claim  under  it  against  the  owner  of  the  estate  of  homestead,  his  7 

widow,  heirs  or  assigns;  but  if  said  owner  of  the  estate  of  homestead,  his  8 

widow,  heirs  or  assigns  offers  to  redeem  the  residue  above  the  home-  9 

stead  estate  and  the  mortgage  from  a  sale  or  set-off  on  execution  and  10 

the  judgment  creditor  has  redeemed  the  mortgage,  the  amount  paid  11 

for  such  redemption  of  the  mortgage,  with  interest  and  expenses,  shall  12 

be  included  in  the  amount  to  be  paid  for  the  redemption  of  said  residue.  13 


Release  of 

rights. 

1851,  340, 

§§  1,  6. 

1855,  23S, 

§§  1.5. 

1857,  298.  55  1, 

3,  6-8,  10,  12, 

13. 

G.  S.  10-J. 

§§7,8. 

P.  S.  123,  §  7. 

R.  L.  131.  I  7. 

2  Gray,  3S3. 

11  Gray,  214, 

332 

15"Grav,  139. 

16  Gray,  144, 

146. 


Section  7.     No  conveyance  of  property  in  which  an  estate  of  home-  1 

stead  exists,  and  no  release  or  waiver  of  such  estate,  shall  convey  the  2 

part  so  held  and  exempted,  or  defeat  the  right  of  the  owner  or  of  his  3 

wife  and  children  to  a  homestead  therein,  unless  such  conveyance  is  by  4 

a  deed  in  which  the  wife  of  the  owner  joins  for  the  purpose  of  releasing  5 

such  right  in  the  manner  in  which  she  may  release  her  dower,  or  unless  6 

such  right  is  released  as  provided  in  chapter  two  hundred  and  nine;  7 

but  a  deed  duly  executed  without  such  release  shall  be  valid  to  pass,  8 

according  to  its  terms,  any  title  or  interest  in  the  property  beyond  the  9 

estate  of  homestead.                   2  Alien,  202, 390.                  4  Alien,  516.  10 


6  Allen,  71,  401,  510. 
12  Allen,  30. 
14  Allen,  1. 
99  Mass.  7.  ' 


100  Mass.  234. 

101  Mass.  426. 
121  Mass.  19. 
130  Mass.  368. 


137  Mass.  30. 
140  Mass.  64. 
156  Mass.  114. 
161  Mass.  27G. 


Sale  of  rights 
of  widow,  etc. 
G.  S.  104,  §  14. 
P.  S.  123.  §  10. 
R.  L.  131.  §  10. 
11  AUen,  194. 


Section  8.     The  widow  and  the  guardian  of  the  minor  children,  if  he  1 

has  obtained  a  license  therefor  from  the  probate  court  as  in  the  sale  of  2 

land  of  minors,  may  join  in  a  sale  of  an  estate  of  homestead;  or  if  there  3 

is  no  widow  entitled  to  rights  therein,  the  guardian  may,  upon  obtaining  4 


CiL\p.  189.] 


DOWER   AND   CURTESY. 


2135 


5  such  license,  make  sale  of  such  estate;   and  the  widow  may  make  such 

6  sale  if  there  are  no  minor  children.     The  purchaser  shall  enjoy  and 

7  possess  the  premises  for  the  full  time  that  the  widow  and  children  or 

8  either  of  them  might  have  continued  to  hold  and  enjoy  them  if  no  sale 

9  had  been  made.    The  probate  court  may  apportion  the  proceeds  of  the 
10  sale  among  the  parties  entitled  thereto. 


Section  9.     If  the  property  of  a  debtor  is  assigned  under  the  laws  Set-offjf 
relative  to  insolvent  debtors,  and  such  debtor  claims,  and  it  appears  to  soiveEt'"' 
the  court  wherein  the  proceedings  in  insolvency  are  pending,  that  he  is  G.%'.iot'iio.' 
entitled  to  hold  a  part  thereof  as  a  homestead  and  that  the  property  in  ^- 1;  ^^^^^  Mj-j 
which  such  estate  of  homestead  exists  is  of  greater  value  than  eight  Jr/iien,  so 

'^  "         156  Mass.  114. 


hundred  dollars,  the  court  shall  cause  the  property  to  be  appraised  by 
three  disinterested  appraisers,  one  of  whom  shall  be  appointed  by  the 
insolvent,  one  by  the  assignee  and  the  third  by  the  court;   or  if  either 
9  the  assignee  or  insolvent  neglects  to  appoint,  the  court  shall  appoint 

10  for  him.     The  appraisers  shall  be  sworn  faithfully  and  impartially  to 

11  appraise  the  property,  and  shall  appraise  and  set  off  an  estate  of  home- 

12  stead  therein  to  the  insolvent  debtor  in  the  manner  prescribed  in  section 

13  eighteen  of  chapter  two  hundred  and  thirty-six  in  case  of  a  judgment 

14  debtor;  and  the  residue  shall  vest  in  and  be  disposed  of  by  the  assignee 

15  in  the  same  manner  as  property  which  is  not  exempt  by  law  from  levy 

16  on  execution.     The  appraisers  shall  be  entitled  to  the  same  fees,  to  be 

17  paid  out  of  the  estate  in  insolvency,  as  are  allowed  to  an  appraiser  of 
IS  land  seized  upon  execution. 


1  Section  10.     All   existing   estates   of   homestead   which   have  been  Existing  rights 

2  acquired  under  any  law  heretofore  in  force  shall  continue  to  be  held  ills,  238,  §  7. 

3  and  enjoyed  notwithstanding  the  repeal  of  such  law.      iss?,  29s,  55 1,  is. 

R.  L.  131,  I  3 
13  Gray,  21. 


G.  S.  104,  I  3. 
P.  S.  123,  §  3. 


6  Allen,  510. 
161  Mass.  276. 


REFERENCES. 

Levy  of  execution  upon  property  in  which  homestead  exists,  Chap.  235,  §  34;  Chap. 
236,  §  18. 

Partition  of  homestead,  Chap.  241. 

§  7.     Release  by  married  woman  under  age.  Chap.  189,  §  6. 


CHAPTER    189, 


DOWER  AND   CURTESY. 


Sect. 

1.  Nature  of  estate.    How  claimed. 

2.  No  curtesy  as  against  purchase  money 

mortgagee. 

Wife  not  dowable  in  wild  land. 

Dower  in  husband's  right  of  redemp- 
tion. 

Release  of  dower. 

6.  Signing    of    instruments     by    married 

women  under  twenty-one. 

7.  Dower  barred  by  jointure  before  mar- 

riage. 
S.  Dower  barred  by  pecuniary  provision. 


3. 

4. 


5. 


Sect. 
9.  Jointure  made  without    wife's    assent 
or    after    marriage    effective    unless 
waived. 

10.  Assignment  of  dower  or  other  undivided 

interest. 

11.  Manner  of  assignment. 

12.  Where  husband  is  tenant  in  common. 

13.  Widow   may   claim   her   interest   after 

occupying  in  common  with  heirs. 

14.  Limitation    for    claim    of    interest    in 

realty. 

15.  Re-endowment  of  woman  if  evicted. 


2136 


DOWER   AND    CURTESY. 


[ClLVP.    1S9. 


Nature  of 

estate. 

How  claimed. 

C.  L.  42,  §  1. 

1692-3.  14.  §  1. 

1783,36, 

5§4,5. 

1805,90.5  1. 

1812,93,  §  1. 

R.  S.  60,  5§  1, 

17. 

1845,  208. 

1854.  400,  §  4. 

G.  S.  90. 

§§  1.16.19. 

1877,  S3. 

1880,  211,  §  3. 

P.  S.  124, 

§§1.3. 

1885,  25!^.  §  2. 

1899,479, 

5§  1.2. 

1900,  450.  5  5. 

R.  L.  132,  §  1. 

1902,482,  §  1. 

1915,134. 

1918,  257, 
§381. 

1919,  5. 

1920,  2. 

1  Pick.  189. 

3  Gray.  398. 
7  Gray.  533. 

2  Allen,  4.5. 

4  Allen.  187. 
113  Mass.  24C. 
140  Mass.  92. 
150  Mass.  84, 
289. 

167  Mass.  575. 
169  Mass.  204. 
171  Mass.  312. 

173  Mass.  529. 

174  Mass.  582. 
181  Mass.  4.58. 
187  Mass.  455. 
192  Mass.  5. 
201  Mass.  59, 
218 

216'Ma8s.  174. 
222  Mass.  126. 


Section  1.  A  husband  shall  upon  the  death  of  his  ■nife  hold  for  his  1 
life  one  third  of  all  land  owned  by  her  at  any  time  during  coverture.  2 
Such  estate  shall  be  known  as  his  tenancy  by  curtesy,  and  the  law  rela-  3 
tive  to  dower  shall  be  applicable  to  curtesy,  and  no  conveyance  by  a  4 
married  woman  of  real  property  shall,  except  as  provided  in  section  5 
thirty-five  of  chapter  two  hundred  and  nine,  extinguish  or  impair  his  6 
tenancy  by  curtesy  in  such  property  unless  he  joins  in  the  conveyance  7 
or  otherwise  releases  his  right.  A  wife  shall,  upon  the  death  of  her  bus-  8 
band,  hold  her  dower  at  common  law  in  her  deceased  husband's  land.  9 
Such  estate  shall  be  known  as  her  tenancy  by  dower.  To  be  entitled  10 
to  such  curtesy  or  dower  the  surviving  husband  or  wife  shall  file  11 
his  or  her  election  and  claim  therefor  in  the  registry  of  probate  within  12 
six  months  after  the  date  of  the  approval  of  the  bond  of  the  executor  13 
or  administrator  of  the  deceased,  and  shall  thereupon  hold  instead  of  14 
the  interest  in  real  property  given  in  section  one  of  chapter  one  hun-  15 
dred  and  ninety,  curtesy  or  dower,  respectively,  otherwise  such  estate  16 
shall  be  held  to  be  waived.  Such  curtesy  and  dower  may  be  assigned  17 
by  the  probate  court  in  the  same  manner  as  dower  is  now  assigned,  18 
and  the  tenant  by  curtesy  or  dower  shall  be  entitled  to  the  posses-  19 
sion  and  profits  of  one  undivided  third  of  the  real  estate  of  the  de-  20 
ceased  from  her  or  his  death  until  the  assignment  of  curtesy  or  dower,  21 
and  to  all  remedies  therefor  which  the  heirs  of  the  deceased  have  in  the  22 
residue  of  the  estate.  Rights  of  curtesy  which  existed  on  December  23 
thirty-first,  nineteen  hundred  and  one,  may  be  claimed  and  held  in  the  24 
manner  above  provided,  but  in  such  case  the  husband  shall  take  no  other  25 
interest  in  the  real  or  personal  property  of  his  wife;  and,  except  as  pre-  26 
served  herein,  curtesy  as  it  existed  prior  to  January  first,  nineteen  hun-  27 
dred  and  two,  is  abolished.  226  Mass.  297.  28 


No  curtesy 
as  against 
purchase 
money  mort- 
gagee. 

1874,  184,  §  2. 
P.  S.  124,  §  2. 
R.  L.  132,  §  2. 


Section  2.     If  a  deed  of  land  is  made  to  a  married  woman,  who,  at  1 

the  time  of  its  execution,  mortgages  such  land  to  the  grantor  to  secure  2 

the  payment  of  the  whole  or  a  part  of  the  purchase  money,  or  to  a  third  3 

person  to  obtain  the  whole  or  a  part  of  such  purchase  money,  her  seisin  4 

shall  not  give  her  husband  an  estate  by  the  curtesy  as  against  such  5 

mortgagee.  6 


Wife  not 
dowable  in 
wild  land. 
R.  S.  60,  §  12. 
1854,  406.  §  2. 
G.  S.90,  §§  12, 
15. 


Section  3.     A  widow  shall  not  be  entitled  to  dower  in  wild  land  of  1 

which  her  husband  dies  seized,  except  woodlots   or   other   land   used  2 

with  his  farm  or  dwelling  house,  nor  in  such  land  which  is  conveyed  by  3 

him  although  it  is  afterward  cleared.                       p.  s.  124,  §  4.  4 


R.  L.  132.  §  3. 
15  Mass.  104. 


1  Pick.  21. 
7  Pick.  143. 


17  Pick.  248. 
208  Mass.  258. 


Dower  in 
husband's  right 
of  redemption. 
R.  S.  60,  §  2. 
G.  S.  90,  I  2. 
P.  S.  124.  §  5. 
R.  L.  132,  §  4. 
13  Mass.  102. 
15  Mass.  278. 

3  Pick.  475. 
12  Gush.  288. 

4  Gray,  46. 

6  Gray.  314. 

7  Gray.  148. 

100  Mass.  224. 

101  Mass.  428. 
105  Mass.  119. 


Section  4.  If,  upon  a  mortgage  made  by  a  husband,  his  wife  has  1 
released  her  right  of  dower,  or  if  a  husband  is  seized  of  land  subject  to  2 
a  mortgage  which  is  valid  and  effectual  as  against  his  wife,  she  shall  3 
nevertheless  be  entitled  to  dower  in  the  land  mortgaged  as  against  4 
every  person  except  the  mortgagee  and  those  claiming  under  him.  If  5 
the  heir  or  other  person  who  claims  under  the  husband  redeems  the  6 
mortgage,  the  widow  shall  either  repay  such  part  of  the  money  which  7 
was  paid  by  the  person  so  redeeming  as  shall  be  equal  to  the  proportion  8 
which  her  interest  in  the  land  mortgaged  bears  to  the  whole  value  9 
thereof  or,  at  her  election,  she  shall  be  entitled  to  dower  according  to  10 
the  value  of  the  estate  after  deducting  the  money  paid  for  redemption.      11 


CH-^P.    189.]  DOWER  AND   CURTESY.  2137 

1  Section  5.     A  married  woman  mav  bar  her  riKht  of  dower  in  land  Rf^'ease  of 

*  .  ,•    .     .  .  dower. 

2  conveyed  by  her  husband  or  by  operation  of  law  by  joining  in  the  deed  joo?.  21,  |  3 

3  conveying  the  land  and  therein  releasing  her  right  to  dower,  or  by  re-  1S23!  i46.  §  i. 

4  leasing  the  land  by  a  subsequent  deed  executed  either  separately  or  mid,  im. 

5  jointly  with  her  husband.    Her  dower  may  also  be  released  in  the  manner  p.' f;  m.Vc- 

6  provided  in  chapter  two  hundred  and  nine.       R.  l.  132,  §  5.       7  Mass.  14. 

11  Mass.  29S.  3  Met.  40.  11  Gray,  332. 

S  Pick.  532.  6  Cush.  190.  107  Mass.  325. 

18  Pick.  9.  4  Gray.  600.  137  Mass.  30. 

1  Section  6.     The  signature  of  a  married  woman  under  twenty-one  signing  of  in- 

2  affixed  by  her  to  any  instrument  relating  to  the  convej'ance  of  land  of  married  women 

3  her  husband  shall  have  the  same  effect  as  if  she  were  over  that  age.  twenty-one. 

1902,  478. 

1  Section  7.     A  woman  may  be  barred  of  her  dower  in  all  the  land  of  Py  folnufre"'^ 

2  her  husband  by  a  jointure  settled  on  her  with  her  assent  before  her  before  mar- 

3  marriage,  if  such  jointure  consists  of  a  freehold  estate  in  land  for  her  R.  s.'eo,  §  s. 

4  life  at  least  and  is  to  take  effect  in  possession  or  profit  immediately  upon  p.'s.'i24,  §  7. 

5  the  death  of  her  husband.     Her  assent  to  such  jointm-e  shall  be  ex-  7  Mass.  153.  ' 

6  pressed,  if  she  is  of  full  age,  by  her  becoming  a  party  to  the  conveyance  gT^Mas's^igk 

7  by  which  it  is  settled,  or,  if  a  minor,  by  her  joining  with  her  father  or 

8  guardian  in  such  conveyance. 

1  Section  S.     A  pecuniary  provision,  made  for  the  benefit  of  an  in-  Dower  barred 

2  tended  wife  and  in  lieu  of  dower,  shall,  if  assented  to  as  provided  in  the  mo^fsbn!'"^'' 

3  preceding  section,  bar  her  dower  in  all  the  land  of  her  husband.  ciiigo!  1 10. 

p.  S.  124,  §  8.  2  Cush.  407.  9  Allen.  234. 

R.  L.  132,  §  7.  5  Allen,  1S7.  197  Mass.  195. 

15  Mass.  106. 

1  Section  9.     Such   jointure   or   pecuniary   provision,    if   made   after  jointure  made 

2  marriage,  or  made  before  marriage  and  without  the  assent  of  the  in-  ^s'ent'or'after 

3  tended  wife,   shall  bar  her  dower,  unless  within  six  months  after  the  rffectrnj" 

4  death  of  her  husband  she  makes  her  election  to  waive  such  jointure  or  g^s^eo^rro' 

5  provision.     If  the  husband  dies  while  absent  from  his  wife,  she  shall  pfjoiMi- 

6  have  six  months  after  notice  of  his  death  within  which  to  make  such  r'.  l.  132,  §  s. 

7  election;    and  she  shall  in  all  cases  have  six  months  after  notice  of  the 

8  existence  of   such   jointui-e  or   provision   within   which  to  make  such 

9  election. 

1  Section  10.     If  a  widow  is  entitled  by  law,  by  deed  of  jointure,  or  Assignment  of 

2  under  the  will  of  her  husband,  to  an  undivided  interest  in  his  land  either  u°di"ic°cT"""^ 

3  for  life  or  during  widowhood,  such  interest  may  be  assigned  to  her,  in  r's^oo,  §  3. 

4  whatever  counties  the  land  lies,  by  the  probate  court  for  the  county  Jljg'ss'' 

5  in  which  the  estate  of  her  husband  is  settled.     Such  assignment  may  be  o-s.  90,  §§  .3. 

6  made  upon  her  petition  or,  if  she  does  not  petition  therefor  within  one  i876, 89. 

..  •  PSl  '"'4    S  1  fl 

7  year  after  the  decease  of  her  husband, 'upon  petition  by  an  heir  or  devi-  r'.  l.  132,  §  9.' 

8  see  of  her  husband,  by  any  person  having  an  estate  in  the  land  subject  g^Mass^g. 

9  to  such  interest,  or  by  the  guardian  or  conservator  of  any  such  heir,  i^cuih.' 111.' 

10  devisee  or  person,  or  by  an  executor  or  administrator  if  the  probate  }.iij{Jsg||7 

1 1  court  finds  that  the  personal  property  w-ill  probably  be  insufficient  to  ^^^  ^i'^'^-  *o. 

12  pay  the  debts  and  legacies  of  the  decedent  or  charges  of  administration. 

1  Section  11.     Upon  such  petition,  the  court  shall  issue  a  warrant  to  Manner  of 

2  three  disinterested  persons  as  commissioners,  who  shall  be  sworn  to  per-  i7oo^r,"22,'  §  4. 


2138 


DOWER   AXD   CUKTESY. 


[Ch.\p.   189. 


1783.  40,  §  3. 
R.  S.  60, 
«3,  4. 

G.  S.  90,  §§  3.  5. 
P.  S.  124,  §  11. 
R.  L.  132,  I  10. 
4  Mass.  S33. 
15  Mass.  164. 


form  their  duty  faithfully  and  impartially  and  who  shall  set  off  the  widow's  3 

interest  by  metes  and  bounds  if  it  can  be  so  done  without  damage  to  the  4 

whole  estate.    But  if  the  estate  out  of  which  a  widow's  interest  is  to  be  5 

assigned  consists  of  a  mill  or  other  tenement  which  cannot  be  divided  6 

without  damage  to  the  whole,  such  interest  may  be  assigned  out  of  the  7 

rents  or  profits  thereof,  to  be  had  and  received  by  the  widow  as  a  tenant  8 

in  common  with  the  other  owners  of  the  estate.  9 


Section  12.  If  a  widow  is  entitled  to  an  undivided  interest  in  land 
which  is  owned  by  her  husband  as  tenant  in  common,  the  probate  court, 
upon  petition  by  her  or  by  any  person  entitled  to  petition  for  assign- 
ment of  her  interest  in  her  husband's  land,  after  notice  as  in  case  of 
R.  L.  132,  §  11.  Q^-jjpj.  partitions,  may  empower  the  commissioners  to  make  partition  of 
the  land  so  owned  in  common,  and  then  to  assign  to  the  widow  her 
interest  in  the  portion  set  off  to  the  estate  of  her  husband. 


Where  husband 

is  tenant  in 

common. 

1842,  73. 

G.  S.  90,  §  4. 

1876,  89. 

P.  S.  124,  §  12, 


Widow  may 
claim  her  inter- 
est after  occupy- 
ing in  common 
with  heirs. 
1816,  84. 
R.  S.  60,  §  6. 
G.  S.  90,  §  7. 
P.  S.  124.  i  13. 
R.  L.  132,  §  12. 
3  Pick.  475. 
5  Pick.  146. 
157  Mass.  499. 


Section  13.     If  a  widow  is  entitled  to  an  interest  in  land  of  which  1 

her  husband  died  seized,  she  may,  without  having  her  interest  assigned,  2 

continue  to  occupy  such  land  with  the  heirs  or  devisees  of  the  deceased,  3 

or  to  receive  her  share  of  the  rents  or  profits  thereof,  so  long  as  such  4 

heirs  or  devisees  do  not  object  thereto;    and  when  the  heirs  or  devisees  5 

or  any  of  them  desire  to  hold  or  occupy  their  share  in  severalty,  the  6 

widow  may  claim  her  interest  and  shall  have  it  assigned  to  her.  7 

161  Mass.  140.  170  Mass.  543. 


Limitation  for 
claim  of  in- 
terest in  realty. 
1858,  56. 
G.S.  90.  §  6. 
P.  S.  124,  §  14. 
1899,  479,  §  4. 
1900.450,  §  6. 
R.  L.  132,  §  13. 
7  Met.  24. 
157  Mass.  499. 
161  Mass.  140. 


Section  14.     No  surviving  husband  or  widow  of  a  deceased  person  1 

shall  make  claim  for  an  interest  in  the  real  estate  of  such  deceased,  or  2 

begin  any  proceeding  for  the  recovery  thereof,  unless  such  claim  or  3 

action  is  made  or  begun  within  twenty  years  after  the  decease  of  the  4 

wife  or  husband,  or  after  he  or  she  has  ceased  to  occupy  or  receive  the  5 

profits  of  his  or  her  share  of  such  real  estate,  except  that  if  at  the  time  6 

of  such  decease  the  surviving  husband  or  widow  is  absent  from  the  7 

commonwealth,  under  twenty-one,  insane  or  imprisoned,  he  or  she  may  8 

make  such  claim  or  begin  such  proceeding  at  any  time  within  twenty  9 

years  after  such  disability  ceases.  10 


Re-endowment 
of  woman  if 
evicted. 
R.  S.  60,  §  13, 
G.  S.  90,  §  13. 
P.  S.  124.  §  15. 
R.  L.  132,  §  14. 
13  Mass.  162. 
1  Met.  66. 


Section  15.     If  a  woman  is  lawfully  evicted  of  land  which  has  been  1 

assigned  to  her  as  dower  or  settled  upon  her  as  jointure,  or  is  deprived  2 

of  the  provision  made  for  her  by  will  or  otherwise  in  lieu  of  dower,  she  3 

may  be  endowed  anew  in  like  manner  as  if  such  assignment,  jointure  4 

or  other  provision  had  not  been  made.  5 


REFERENCES. 

Conveyance  by  husband  or  wife  deserted  and  living  apart,  Chap.  209,  §§  30,  35,  36. 
Dower  where  husband  and  wife  are  divorced.  Chap.  20S,  §  27. 
Sale  by  e.xecutor  or  administrator  free  from  dower  or  curtesy,  Chap.  202,  §  3. 
§§  10,  11.     Partition  in  general,  Chap.  241. 
§§  10-13.     Writ  of  dower,  Chap.  23S. 

§  11.     Terms  for  one  hundred  years  or  more.  Chap.  1S6,  §§  1,  2;  land  taken  on 
execution.  Chap.  236,  §  55. 


CiL\p.  190.] 


DESCENT   AND   DISTRIBUTION. 


2139 


TITLE   II. 

DESCENT  AND  DISTRIBUTION,  WILLS,  ESTATES  OF  DE- 
CEASED PERSONS  AND  ABSENTEES,  GUARDIANSHIP, 
CONSERVATORSHIP   AND   TRUSTS. 


190. 
191. 
192. 
193. 
194. 
195. 
196. 
197. 
198. 
199. 


Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chapter 

Chai'ter 

Chapter 

Chapter  200. 

Chapter  201. 

Chapter  202. 

Chapter  203. 
Chapter  204. 

Chapter  205. 

Chapter  206. 


Descent  and  Distribution  of  Real  and  Personal  Property. 

Wills. 

Probate  of  Wills  and  Appointment  of  Executors. 

Appointment  of  Administrators. 

Public  Administrators. 

General  Provisions  relative  to  Executors  and  Administrators. 

Allowances  to  Widows  and  Children,  and  Advancements. 

Payment  of  Debts,  Legacies  and  Distributive  Shares. 

Insolvent  Estates  of  Deceased  Persons. 

Settlement  of  Estates  of  Deceased  Non-Residents. 

Settlement  of  Estates  of  Absentees. 

Guardians  and  Conservators. 

Sales,  Mortgages  and  Leases  of  Real  Estate  by  Executors,  Ad- 
ministrators, Guardians  and  Conservators. 

Trusts. 

General  Provisions  relative  to  Sales,  Mortgages,  Releases,  Compro- 
mises, etc.,  by  Executors,  etc. 

Bonds  of  Executors,  Administrators,  Guardians,  Conservators/ Trus- 
tees and  Receivers. 

Accounts  and  Settlements  of  Executors,  Administrators,  Guardians, 
Conservators,  Trustees  and  Receivers. 


CHAPTER     190. 

DESCENT  AND  DISTRIBUTION  OF  REAL  AND  PERSONAL  PROPERTY. 


Sect. 

1.  Share  of  Burviving  husband  or  wife. 

2.  Distribution  of  personal  property. 

3.  Descent  of  real  property. 

4.  Degrees  of  kindred. 

5.  lUegitimate    child    to    be    heir    of    his 

mother. 


Sect. 

6.  Mother  to  be  heir  of  illegitimate  child. 

7.  When  illegitimate  child  to  be  deemed 

legitimate. 

8.  Taking    by    right    of    representation. 

Posthumous  children. 


1  Section  1.     A  surviving  husband  or  wife  shall,  after  the  payment  of  share  ot 

2  the  debts  of  the  deceased  and  the  charges  of  his  last  sickness  and  funeral  husband^or 

3  and  of  the  settlement  of  his  estate,  and  subject  to  chapter  one  hundred  cI'l.  iss.  1 3. 

4  and  ninety-six,  be  entitled  to  the  following  share  in  his  real  and  per-  nli'lh"'!  ^' 


5  sonal  property  not  disposed  of  by  will: 
6 


1789,  2.  §  1. 

(1)  If  the  deceased  leaves  kindred  and  no  issue,  and  it  appears  on  de-  R-  s.'64.'§  i. 
7  termination  by  the  probate  court,  as  hereinafter  provided,  that  the  whole  is54!  406. 1 3. 

G.  S.  94,  I  16. 


2140 


DESCE^^T   .\ND  DISTRIBUTION. 


[Chap.  190. 


1876.  220.  §  1. 
P.  S.  135.  §  3. 
18S2.  141. 
188.5,  270, 
18<)9.  479,  §  7. 
1900.  450, 
§§3,4. 

R.  L.  140,  I  3. 
1905.  256. 
1917.  303. 
1920,  468. 
1  Met.  204. 
5  Allen,  187. 
9  Allen,  234. 
137  Mass.  156. 
139  Mass.  304. 
146  Mass.  281. 
lS6  Mass.  577. 
194  Mass.  552. 

200  Mass.  77. 

201  Mass.  59, 
218. 

204  Mass.  471. 

205  Mass.  350, 
468. 

206  Mass.  437. 
210  Mass.  105. 

213  Mass.  418. 

214  Mass.  680. 

215  Mass.  576. 
218  Mass.  27. 
222  Mass.  126. 
226  Mass.  297. 
228  Mass.  18. 
231  Mass.  341. 


183  Mass.  173. 


estate  does  not  exceed  five  thousand  dollars  in  value,  the  su^^•i\^ng  hus-  8 
band  or  uife  shall  take  the  whole  thereof;  otherwise  such  sur\-i\-or  shall  9 
take  five  thousand  dollars  and  one  half  of  the  remaining  personal  and  10 
one  half  of  the  remaining  real  property.  If  the  personal  property  is  in-  11 
sufficient  to  pay  said  five  thousand  dollars,  the  deficiency  shall,  upon  12 
the  petition  of  any  party  in  interest,  be  paid  from  the  sale  or  mortgage,  1.3 
in  the  manner  pro^^ded  for  the  pajanent  of  debts  or  legacies,  of  any  in-  14 
terest  of  the  deceased  in  real  property  wliich  he  could  have  conveyed  at  15 
the  time  of  his  death;  and  the  sur\-i\-ing  husband  or  v^iie  shall  be  per-  16 
mitted,  subject  to  the  approval  of  the  court,  to  purchase  at  any  such  17 
sale,  notwithstanding  the  fact  that  he  or  she  is  the  administrator  of  the  18 
estate  of  the  deceased  person.  A  further  sale  or  mortgage  of  any  real  19 
estate  of  the  deceased  may  later  be  made  to  provide  for  any  deficiency  20 
still  remaining.  Wlienever  it  shall  appear,  upon  petition  to  the  probate  21 
court  of  any  party  in  interest,  and  after  such  notice  as  the  court  shall  22 
order,  and  after  a  hearing  thereon,  that  the  whole  amount  of  the  estate  of  23 
the  deceased,  as  found  by  the  inventory  and  upon  such  other  e\adence  as  24 
the  court  shall  deem  necessary,  does  not  exceed  the  sum  of  five  thousand  25 
dollars  over  and  above  the  amount  necessary  to  pay  the  debts  and  charges  26 
of  administration,  the  court  shall  itself  by  decree  determine  the  value  of  27 
said  estate,  wliich  decree  shall  be  binding  upon  all  parties.  If  additional  28 
property  is  later  discovered,  the  right  or  title  to  the  estate  covered  by  29 
such  decree  shall  not  be  affected  thereby,  but  the  court  may  make  such  30 
further  orders  and  decrees  as  are  necessary  to  effect  the  distribution  31 
herein  pro\'ided  for.  32 

(2)  If  the  deceased  leaves  issue,  the  survivor  shall  take  one  third  of  33 
the  personal  and  one  third  of  the  real  property.  34 

(3)  If  the  deceased  leaves  no  issue  and  no  kindred,  the  survivor  shall  35 
take  the  whole.  36 


Distribution 
of  personal 
propertv. 
C.  L.  158,  §  3. 
1692-3.  14,  §  1. 
1783,  36,  §  2. 
1789,  2,  §  1. 
1805,  90,  §  2. 
R.  S.  64,  §  1. 
G.  S.  94,  §  16. 
1876,  220,  §  1. 


Section  2.  The  personal  property  of  a  deceased  person  not  lawfully 
disposed  of  by  will  shall,  after  the  payment  of  his  debts  and  the  charges 
of  his  last  sickness  and  funeral  and  of  the  settlement  of  the  estate,  and 
subject  to  the  preceding  section  and  to  chapter  one  hundred  and  ninety- 
six,  be  distributed  among  the  persons  and  in  the  proportions  hereinafter 
prescribed  for  the  descent  of  real  property. 


p.  S.  135,  §  3. 

1899,  479,  §  7. 

1900,  450,  I  3. 


R.  L.  140,  §  3. 
1  Met.  204. 
137  Mass.  156. 


139  Mass.  304. 
146  Mass.  281. 
149  Mass.  502. 


186  Mass.  577. 
226  Mass.  388. 


Descent  of 
real  property. 
C.  L.  158.  §  3. 
1692-3.14.5  1. 
1710-11,  2,  §1. 
1719-20. 
10,  §  4. 
1734-5,  16. 
1783,36,  §§1,2 
1789,  2,  §  1. 
1805,90,  §§  1,2, 
R.  S.  61, 
§§1,12:64,51, 
G.  S.  91,  §§1, 
11:  94.  §16. 
1876,  220, 
§U,3. 
ISSO,  219. 
P.  S.  125,  §  1; 
135.  §  3. 

1899,  479,  §  7. 

1900,  450,.§  3. 
R.  L.  1.33,  I  1; 
140,  §  3. 


Section  3.  AVhen  a  person  dies  seized  of  land,  tenements  or  heredita- 
ments, or  of  any  right  thereto,  or  entitled  to  any  interest  therein,  in 
fee  simple  or  for  the  life  of  another,  not  having  lawfully  devised  the 
same,  they  shall  descend,  subject  to  his  debts  and  to  the  rights  of  the 
husband  or  wife  and  minor  children  of  the  deceased  as  provided  in  this 
and  in  the  two  preceding  chapters  and  in  chapter  one  hundred  and 
ninety-six,  as  follows: 

(1)  In  equal  shares  to  his  children  and  to  the  issue  of  any  deceased 
child  by  right  of  representation;  and  if  there  is  no  siuviving  child  of 
the  intestate  then  to  all  his  other  lineal  descendants.  If  all  such  de-  10 
scendants  are  in  the  same  degree  of  kindred  to  the  intestate,  they  shall  11 
share  the  estate  equally;  otherwise,  they  shall  take  according  to  the  12 
right  of  representation.  liMass.  8S.  20Pick.  5i4.  13 


3  Met.  187. 
7  Met.  303. 
9  Met.  28. 
6  Gush.  156. 


129  Mass.  243. 
)49  Mass.  39. 
167  Mass.  499. 
196  Mass.  389. 


197  Mass.  273. 
204  Mass.  570. 
206  Mass.  437. 
215  Mass.  299. 


225  Mass.  66. 

226  Mass.  396. 
228  Mass.  537. 
234  Mass.  540. 


CiLiP.    190.]  DESCENT   AND  DISTRIBLTTION.  2141 

14  (2)  If  he  leaves  no  issue,  in  equal  shares  to  his  father  and  mother.         204  Mass.  471. 

15  (3)  If  he  leaves  no  issue  and  no  mother,  to  his  father. 

16  (4)  If  he  leaves  no  issue  and  no  father,  to  his  mother. 

17  (5)  If  he  leaves  no  issue  and  no  father  or  mother,  to  his  brothers  and  \°l  ^ilH  jf^; 

18  sisters  and  to  the  issue  of  any  deceased  brother  or  sister  by  right  of  \i^.  H^^^-  ^% 

i.«i  .  ..  ,  ,  •  PI*  Mass.  J42. 

19  representation;  and,  if  there  is  no  surviving  brother  or  sister  of  the  in-  InSM^'^^ISi 

20  testate,  to  all  the  issue  of  his  deceased  brothers  and  sisters.    If  all  such 

21  issue  are  in  the  same  degree  of  kindred  to  the  intestate,  they  shall  share 

22  the  estate  equally,  otherwise,  according  to  the  right  of  representation. 

23  (6)  If  he   leaves  no  issue,  and  no  father,  mother,  brother  or  sister,  6  Cush.  ise. 

24  and  no  issue  of  any  deceased  brother  or  sister,  then  to  his  next  of  kin  130  Mass!  its! 

25  in  equal  degree;    but  if  there  are  two  or  more  collateral  kindred  in  equal  144  Mass!  135! 

26  degree  claiming  through  different  ancestors,  those  claiming  tlirough  is9Mass!503! 

27  the  nearest  ancestor  shall  be  preferred  to  those  claiming  through  an 

28  ancestor  more  remote. 

29  (7)  If  an  intestate  leaves  no  kindred  and  no  widow  or  husband,  his  16  Pick.  177. 

30  estate  shall  escheat  to  the  commonwealth. 

1  Section  4.     Degrees  of  kindred  shall  be  computed  according  to  the  Degrees  of 

2  rules  of  the  civil  law;    and   the  kindred  of  the  half  blood  shall  inherit  i7S3^36,  §1. 

3  equally  with  those  of  the  whole  blood  in  the  same  degree.  if °s.'  Ii,'  |  s." 

G.  S.  91.  §  S.  R.  L.  133,  §  2.  5  Cush.  232. 

P.  S.  125,  §2.  12  Mass.  489.  IIG  Mass.  562. 

1  Section  5.    An  illegitimate  child  shall  be  heir  of  his  mother  and  of  '"''S'timate 

,,,„,.  „  .,,      .   .  chikl  to  be  heir 

2  any  maternal  ancestor,  and  the  lawful  issue  or  an  illegitimate  person  of  his  mother. 

3  shall  represent  such  person  and  take  by  descent  any  estate  which  such  R.'s.'ei,  §2. 

4  person  would  have  taken  if  living. 

1851,211.  R.  L.  133.  §3.  113  Mass.  430. 

G.S.  91,  §2.  U  Met.  294.  172  Mass.  472. 

P.  S.  125,  §  3.  108  Mass.  40.  236  Mass.  204. 

1  Section  6.     If  an  illegitimate  child  dies  intestate  and  without  issue  Mother  to  be 

2  who  may  lawfully  inherit  his  estate,  such  estate  shall  descend  to  his  nfate°chiidL' '" 

3  mother  or,  if  she  is  not  living,  to  the  persons  who  would  have  been  r"s.'6\^,^§  3. 

4  entitled  thereto  by  inheritance  tlu-ough  his  mother  if  he  had  been  a  p.f.iis.^^i. 

5  legitimate  child.  is82, 132,  r.  l.  133,  §  4. 

4  Pick.  93.  149  Mass.  502.  214  Mass.  223. 

1  Section  7.     An  illegitimate  child  whose  parents  ha\'e  intermarried  mate^chifl'to 

2  and  whose  father  has  acknowledged  him  as  his  child  shall  be  deemed  be  deemed 

.   .  "  legitimate. 

3  legitimate.  1832,147.  r.  s.  ei,  §4. 

1853,  253.  P.  S.  125,  §  5.  5  Allen,  257.  183  Mass,  448. 

G.  S.  91,  §  4.  R.  L.  133,  §  5.  8  Allen,  551.  196  Mass.  389. 

1  Section  8.     Inheritance  or  succession  by  right  of  representation  is  Taking  by 

2  the  taking  by  the  descendants  of  a  deceased  heir  of  the  same  share  or  sen'tat'io"'"^'^ 

3  right  in  the  estate  of  another  person  as  their  parent  would  have  taken  ^hi!d^e"°"^ 

4  if  living.     Posthumous   children   shall   be  considered   as  living  at  the  g|-|J'|  Ji^- 

5  death  of  their  parent.  p.  s.  125,  §  0.  r.  l.  iss,  §  6. 

REFERENCES. 

Descent  and  distribution  in  certain  cases,  see  the  following: 

Cemetery  lots,  Chap.  114,  §  31. 

Issue  of  void  marriages,  Chap.  207,  §  17. 

Real  estate  of  non-residents.  Chap.  199,  §  1. 

Adopted  children,  Chap.  210,  §§  7,  8. 

Aliens,  Chap.  184,  §  1. 
§  8.     Posthumous  children  not  provided  for  in  will,  Chap.  191,  §  21. 


2142 


WILLS. 


IChap.  191. 


CHAPTER     191 


WILLS. 


Sect. 


MAKING   AND   REVOCATION. 


1.  By  whom  and  how  wills  may  be  made. 

2.  Competency  of  witness  and  devise  or 

legacy  to  witness. 

3.  Competency  of  witness. 

4.  Wills  made  in  accordance  with  law  at 

time  of  e.xecution. 

5.  Wills  made  out  of  the  commonwealth. 

6.  Nuncupative  will. 

7.  Probate  necessary. 

8.  Revocation. 

9.  Revocation  by  marriage. 

CUSTODY    AND    PRODUCTION    IN    COURT. 

10.  Deposit  of  wills. 

11.  Custody  and  delivery  of  wills. 

12.  Will  not  called  for,  to  be  opened  at  first 

probate  court. 

13.  Possessor  of  will  to  present  it  for  pro- 

bate. 

14.  Proceedings  against  persons  suspected 

of  concealing  wills,  etc. 

RIGHTS  OF  SURVIVING  HUSBAND  OR  WIDOW. 

15.  Right  to  waive  will. 

16.  Appointment  of  trustees  to  hold  hus- 

band's or  widow's  share. 

17.  Husband  not  to  have  curtesy  or  widow 

dowerin  addition  to  provisions  of  will, 
unless,  etc. 


Sect. 

provisions  for  special  cases. 

18.  Devise  to  give  fee. 

19.  Land  acquired  after  making  of  will  to 

pass  by  it. 

20.  Child  not  provided  for  in  will. 

21.  Posthumous  children. 

22.  Devisee  or  legatee    dying    before   tes- 

tator. 

23.  Devises  of  real  estate  subject  to  mort- 

gage. 

24.  Devise  of  land  to  which   testator  has 

only  right  of  entry. 

CONTRIBUTION    AMONG     DEVISEES    AND    LEG- 
ATEES. 


25. 


28. 


29. 
30. 


Contribution   to   make   up   portion   of 

posthumous  or  omitted  child. 
Contribution  when  property  is   taken 

for  the  payment  of  debts. 
Special  appropriation  of  his  estate  made 

by  testator  to  be  followed. 
Posthumous  or  omitted  child  liable  and 

entitled  to  contribution. 
Insolvency  of  devisee  or  legatee. 
Contribution    if   estate  is  taken   from 

devisee  for  dower,  etc. 


By  whom 

and 

how 

wills 

may 

be  made. 

29  Car.  II 

c.  3, 

§5. 

B.  L 

11. 

C.  L 

1,  § 

<> 

1692 

-3,  IJ 

'■§1; 

15,  §  3. 

17S3 

24.  §51,2. 

R.  S 

62,  §§  1, 

5,6. 

1842 

74. 

1850 

200. 

1855 

304, 

§5. 

1857 

249, 

§4. 

MAKING   ANT)    REVOCATION. 

Section  1.     Every  person  of  full  age  and  sound  mind  may  by  his  1 

last  will  in  writing,  signed  by  him  or  by  a  person  in  his  presence  and  by  2 

his  e.xpress  direction,  and  attested  and  subscribed  in  his  presence  by  3 

tliree  or  more  competent  witnesses,  dispose  of  his  property,  real  and  4 

personal,  except  an  estate  tail,  and  except  as  is  provided  in  this  chapter  5 

and  in  chapters  one  hundred  and  eighty-eight  and  one  hundred  and  6 

eighty-nine  and  in  section  one  of  chapter  two  hundred  and  nine.     A  7 

married  woman,  in  the  same  manner  and  with  the  same  effect,  may  8 

make  a  will.                g.  s.  92,  §§  1, 2, 6;  10s,  §§  9, 10.                1864,  i9S;  2-6.  9 


147,  i 


P.  S.  127,  §  1 

1884,  301. 

1885,  265. 
1887,  290,  §  2. 

1899,  479,  §§  8.  9. 

1900,  450.  §  7. 
R.  L.  135,  §  1. 
12  Mass.  488. 
1  Pick.  239. 

17  Pick.  134,  373. 
23  Pick.  10. 
1  Met.  349. 
9  Met.  28. 


10  Met.  54. 
2  Cush.  433. 
12  Cush.  332. 
2  Gray,  524. 
7  Gray,  42,  71. 
16  Gray,  91. 

10  Allen,  153,  155. 

11  Allen,  49. 

99  Mass.  79. 

100  Mass.  234. 
110  Mass.  157. 
135  Mass.  238. 
160  Mass.  140. 


169  Mass.  74,  186. 
176  Mass.  216. 
187  Mass.  120. 
199  Mass.  450. 
205  Mass.  468, 
218  Mass.  445, 

221  Mass.  485. 

222  Mass.  439. 

223  Mass.  559. 

225  Mass.  245. 

226  Mass.  400. 

229  Mass.  585. 

230  Mass.  11. 


553. 
471,  531. 


witness  and  SECTION  2.     Any  pcrson  of  sufficient  understanding  shall  be  deemed     1 

devise  or  legacy  to  be  a  Competent  witness  to  a  will,  notwithstanding  anv  common  law     2 

to  witness.  ^  o         i 


Competency  of 
witness  and 


Ch-^p.  191.]  WILLS.  2143 

3  disqualification  for  interest  or  otherwise;    but  a  beneficial  devise  or  1783,24,  §§  u, 

4  legacy  to  a  subscribing  witness  or  to  the  husband  or  wife  of  such  witness  r.s.  62,  §  8. 

5  shall  be  void  unless  there  are  tliree  other  subscribing  witnesses  to  the  will  ill?;  los,  1 3°' 

6  who  are  not  similarly  benefited  thereunder.  g.  s.  92,  §  lo;  isi,  §  15. 

1878,122.  1918, 257,  §436.  106  Mass.  474. 

P.  S.  127,  §§2,3;  1919,5.  172  Mass.  425. 

109,  §  21.  1920,  2.  205  Mass.  468. 

R.  L.  135,  §§  2,  3;  5  Met.  396.  209  Mass.  184. 

175,  §  23.  7  Gray,  42.  218  Mass.  445. 


1  Section  3.     If  a  witness  to  a  will  is  competent  at  the  time  of  his  attes-  Competency 

2  tation,  his  subsequent  incompetency  shall  not  prevent  the  probate  and  r.  sl'Sf,*"!  6. 

3  allowance  of  such  will.  g.  s.  92,  §  6.  p.  s.  127,  §  2. 

R.  L.  135,  §  2.  12  Mass.  358.  9  Pick.  350.  10  Allen,  153. 


1  Section  4.     A  will  made  and  executed  in  conformity  with  law  exist-  '^ii's  made  in 

2  ing  at  the  time  of  its  execution  shall  have  the  same  efi'ect  as  if  made  pur-  I'aw^atJ'tlme  of 

3  suant  to  this  chapter.  i838, 2.  ''^'^"^^  ""'■ 

G.  S.  92,  §  7.  P.  S.  127,  §  4.  R.  L.  135,  §  4.  205  Mass.  472. 

1  Section  5.     A  last  will  and  testament  executed  in  the  mode  pre-  wiiismade 

2  scribed  by  the  law,  either  of  the  place  where  the  will  is  executed  or  of  commo'nweaith. 

3  the  testator's  domicile,  shall  be  deemed  to  be  legally  executed,  and  shall  c^tgii^s. 

4  be  of  the  same  force  and  effect  as  if  executed  in  the  mode  prescribed  by  E|;  ^^^^  |^- 

5  the  laws  of  this  commonwealth;  provided,  that  such  last  will  and  testa-  1911,240'. 

6  ment  is  in  WTiting  and  subscribed  by  the  testator.  1919, 5.  §  sss. 

1920,  2.  5  Cusli.  245.  13  Gray,  330.  13  Allen,  38. 

1  Section  6.     A  soldier  in  actual  military  service  or  a  mariner  at  sea  Nuncupative 

2  may  dispose  of  his  personal  property  by  a  nuncupative  will.  "'"■ 

1692-3.  15,  §  11.  G.  S.  92,  §9.  22  Law  Rep.  110. 

1783,  24,  §  6.  P.  S.  127,  §  6.  199  Mass.  450. 

R.  S.  62,  §  7.  R.  L.  135,  §  6. 

1  Section  7.     No   will,    except   as   provided   in   this   chapter  and   in  Probate 

2  chapter  two  hundred  and  nine,  shall  pass  any  property,  real  or  personal,  r."'62T§  32. 

3  or  charge  or  in  any  way  affect  the  same;   and  no  will  shall  take  effect  p.'l.illV* 

4  until  it  has  been  duly  proved  and  allowed  in  the  probate  court.    Such  fg  Ma'ss^'433'!' 

5  probate  shall  be  conclusive  as  to  its  due  execution.  1  Pick.  114. 

6  Met.  360.  11  Cush.  519.  130  Mass.  91. 

12  Met.  421.  12  Allen,  1.  140  Mass.  411. 

1  Section  8.     No  will  shall  be  revoked  except  by  burning,  tearing,  Revocation. 

2  cancelling  or  obliterating  it  with  tlie  intention  of  revoking  it,  by  the  §§  4"',"ii.  ^' 

3  testator  himself  or  by  a  person  in  his  presence  and  by  his  direction;    or  r.^s.' g2,' I  g^' "^^ 

4  by  some  other  writing  signed,  attested  and  subscribed  in  the  same  Rf.'^li,?".' 

5  manner  as  a  will;    or  by  subsequent  changes  in  the  condition  or  cir-  fp^et  ms^^' 

6  cumstances  of  the  testator  from  which  a  revocation  is  implied  by  law.       5£!'^!=-  'i-- 

9  Pick  350 
15  Pick.  3SS.  123  Mass.  102.  204  Mass.  383. 

4  Gray,  lfi2.  138  Mass.  45,  116.  215  Mass.  164. 

114  -Mass.  610.  141  Mass.  75.  222  Mass.  283. 

1  Section  9.     The  marriage  of  a  person  shall  act  as  a  revocation  of  a  Revocation 

2  will  made  by  him  previous  to  such  marriage,  unless  it  appears  from  the  iso'irns!^''' 

3  will  that  it  was  made  in  contemplation  thereof.     If  the  will  is  made  in  54i^M''a^stl7^5'. 

4  the  exercise  of  a  power  of  appointment  and  the  real  and  personal  JyoMassloi' 

5  property  subject  to  the  appointment  would  not,  without  the  appoint-  iS4  Mass!  sm. 

6,  ,.1  ,  111  ,  .11  ..„.,,    214  Mass.  620. 

ment,  pass  to  the  persons  who  would  have  been  entitled  to  it  it  it  had  233  Mass.  408. 


2144  WILLS.  [CiL\p.  191. 

been  the  estate  and  property  of  the  testator  makhig  the  appointment  7 

and  he  had  died  intestate,  so  much  of  the  will  as  makes  the  appointment  8 

shall  not  be  revoked  by  the  marriage.  9 

CUSTODY  AND   PRODUCTION   IN   COURT. 

R*s°6*°§rw'      Section  10.     A  will  enclosed  in  a  sealed  wrapper,  with  an  endorse-  1 

11.       '        '  ment  thereon  of  the  name  and  residence  of  the  testator  and  of  the  day  2 

13.  '    '        '  when  and  the  person  by  whom  it  is  deposited,  and  with  or  without  the  3 

10.  '      '      '  name  of  a  person  to  whom  the  will  is  to  be  delivered  after  the  death  of  4 

f§  io/n.'         the  testator,  shall,  on  the  payment  of  one  dollar,  be  received  by  the  5 

register  of  probate  in  the  county  where  the  testator  lives,  who  shall  6 

give  a  certificate  of  the  receipt  thereof,  and  shall  keep  such  will;   and  7 

the  same  shall  not  be  opened  until  it  is  delivered  to  a  person  entitled  8 

to  receive  it  or  is  otherwise  disposed  of  as  hereinafter  provided.  9 

Custody  and         SECTION  11.     During  the  life  of  the  testator  such  will  shall  be  de-  1 

aeuvery  oi  ...  ....  ,.  .... 

wills.               livered  only  to  him  or  m  accordance  with  his  order  in  writing  duly  2 

g!  s!  92!  §  14!    verified  by  the  oath  of  a  subscribing  witness ;    and  after  his  death  it  3 

R.  L.  135,  §  12.  shall  be  delivered  to  the  person  named  in  the  endorsement,  if  such  4 

1902,  160.                                J                1     -J.  r 

person  demands  it.  5 

f^r'tote'^''"*'''       Section  12.     If  the  will  is  not  called  for  by  the  person,  if  any,  named  1 

opened  at  first    Jn  the  endorsement,  it  shall  be  publicly  opened  at  the  first  probate  2 

R.  s.  62,  §  13.'    court  held  after  notice  of  the  testator's  death,  and  shall  be  retained  in  3 

P.S.127, §  12.   the  registry  until  so  opened.     If  the  jurisdiction  of  the  case  belongs  4 

R.    .  1  5,  §  1  .  ^^  another  court,  it  shall  be  delivered  to  the  executors  or  other  persons  5 

entitled  to  the  custody  thereof,  to  be  by  them  presented  for  probate  in  6 

such  other  court.  7 

w?ifto^°rescnt        Section  13.     A  pcrson  having  custody  of  a  will,  other  than  a  register  1 

i692-ri4T2    ^^  probate,  shall,  within  tliirty  days  after  notice  of  the  death  of  the  testa-  2 

1783,24.  §16.'  tor,  deliver  such  will  into  the  probate  court  having  lurisdiction  of  the  3 

1817  190  §  32  .  . 

R.  s.'62,  §  14. '  probate  thereof,  or  to  the  executors  named  in  the  will,  who  shall  them-  4 

1S75, 2T0.   *"'    selves  deliver  it  into  such  court  within  said  time;   and  if  a  person  neg-  5 

R.  L.\?5,Vi4.  lects  without  reasonable  cause  so  to  deliver  a  will,  after  being  duly  cited  6 

4  Kef  ■33^'^'      ^or  that  purpose  by  such  coiu-t,  he  may  be  committed  to. jail  by  warrant  7 

200  iiass.  382.   of  the  court  until  he  delivers  it  as  above  provided,  and  shall  be  liable  to  a  8 

230  Mass.  342.  ,  .  ^    „  .^  '^  •        ^    i        i  •        i 

person  who  is  aggrieved  tor  the  damage  sustained  by  him  by  reason  of  9 

such  neglect.  10 

Tgainst'^persons      Section  14.     If  a  pcrsou  ckimiug  to  be  interested  in  the  estate  of  a  1 

suspected  of      persou  dcceascd  makes  complaint  on  oath  to  a  probate  court  against  2 

concealing  ^  ip  ••  t  ••  .71 

mils,  etc           any  one  suspected  ot  retaining,  concealing,  or  conspiring  with  others  to  3 

G.  s.'92,  §§  17,  retain  or  conceal,  a  will  or  testamentary  instrument  of  the  deceased,  the  4 

p.'s.  127,  §  14.   court  may  cite  the  suspected  person  to  appear  before  it  and  be  examined  5 

loo^Mass'.  Isi''  on  oath  upon  the  matter  of  the  complaint.     Upon  such  examination  6 

all  interrogatories  and  answers  shall  be  iu  writing,  signed  by  the  person  7 

examined,  and  shall  be  filed  in  the  court.    If  the  person  cited  refuses  to  8 

appear  and  to  answer  such  interrogatories  as  are  lawfully  propounded  to  9 

him,  or  to  obey  any  lawful  order  of  tlie  court,  he  may  be  committed  10 

to  jail  by  warrant  of  the  court  until  he  submits  to  its  order.    The  court  11 

may  award  costs  to  be  paid  by  either  party,  and  may  issue  execution  12 

therefor.  13 


ClL\P.   191.]  WILLS.  2145 

RIGHTS    OF   SURA-R'ING   HUSB.USfD    OR   WIFE. 

1  Section  15.     The  surviving  husband  or  wife  of  a  deceased  person,  Right  to 

2  except  as  provided  in  section  thirty-five  or  thirty-six  of  chapter  two  rTssf^Il'is. 

3  hundred  and  nine,  within  six  months  after  the  probate  of  the  will  of  such  r.^I.Io.  §  ii. 

4  deceased,  may  file  in  the  registry  of  probate  a  writing  signed  by  him  or  by  Jf  ^I'H^j  ^4 

5  her,  waiving  any  provisions  that  may  have  been  made  in  it  for  him  or  jss}.  im.  §  i- 

6  for  her,  or  claiming  such  portion  of  the  estate  of  the  deceased  as  he  or  she  is^s!  ss. 

•  •  P    S    1 27    Sis 

7  would  have  taken  if  the  deceased  had  died  intestate,  and  he  or  she  shall  isqq,  479,  §  16. 

8  thereupon  take  the  same  portion  of  the  property  of  the  deceased,  real  r.*l.'  ils,'  f  16. 

9  and  personal,  that  he  or  she  would  have  taken  if  the  deceased  had  died  §^384.^*^' 

10  intestate;    except  that  if  he  or  she  would  thus  take  real  and  personal  }|'o'2 

11  property  to  an  amount  exceeding  ten  thousand  dollars  in  value,  he  or  she  J  p'^i'  for' 

12  shall  receive  in  addition  to  that  amount  only  the  income  during  his  or  6  Gray!  so?; 

13  her  life  of  the  excess  of  his  or  her  share  of  such  estate  above  that  amount,  12  Gray.  227, 

14  the  personal  property  to  be  held  in  trust  and  the  real  property  vested  in  i^Aiien,  490. 

15  him  or  her  for  life,  from  the  death  of  the  deceased;  and  except  that  if  the  i  Alien!  ire! 

16  deceased  leaves  no  kindred,  he  or  she  upon  such  waiver  shall  take  the  joiMassIo*' 

17  interest  he  or  she  would  have  taken  if  the  deceased  had  died  leaving  102  Mass.  49, 
IS  kindred  but  no  issue.    If  the  real  and  personal  property  of  the  deceased  log'Mass.  i46. 

19  which  the  surviving  husband  or  widow  takes  under  the  foregoing  pro-  133  Mass!  413. ' 

20  visions  exceeds  ten  thousand  dollars  in  value,  the  ten  thousand  dollars  Itl  mIII'.  511! 

21  above  given  absolutely  shall  be  paid  out  of  that  part  of  the  personal  }85Mas3!i96! 

22  property  in  which  the  husband  or  widow  is  interested;  and  if  such  part  IggMassisQ! 

23  is  insufficient  the  deficiency  shall,  upon  the  petition  of  any  person  in-  205  Mass.  le, 

24  terested,  be  paid  from  the  sale  or  mortgage  in  fee,  in  the  manner  provided  210'Mass.  105. 

25  for  the  payment  of  debts  or  legacies,  of  that  part  of  the  real  property  in  221  Mass!  31.5. 

26  which  he  or  she  is  interested.    Such  sale  or  mortgage  may  be  made  either  236  Mass!  77.' 

27  before  or  after  such  part  is  set  oflF  from  the  other  real  property  of  the  de- 

28  ceased  for  the  life  of  the  husband  or  widow.    If,  after  probate  of  such  will, 

29  legal  proceedings  have  been  instituted  wherein  its  validity  or  effect  is 

30  drawn  in  question,  the  probate  court  may,  within  said  six  months,  on 

31  petition  and  after  such  notice  as  it  orders,  extend  the  time  for  filing  the 

32  aforesaid  claim  and  waiver  until  the  expiration  of  six  months  from  the 

33  termination  of  such  proceedings. 

1  Section  16.    The  probate  court  may  upon  application  of  a  person  Appointment 

2  interested  appoint  one  or  more  trustees,  who  shall  be  subject  to  chapter  hoid"husband's 

3  two  hundred  and  three  so  far  as  applicable,  to  hold  during  the  life  of  a  "haTe^"""^ 

4  husband  or  widow  any  personal  property  to  the  income  of  which  he  or  jp^'  2^2'  |  f 

5  she  may  be  entitled  under  the  preceding  section. 

p.  S.  127.  §19.  1899,  479,  §  11.  1900,  450,  §  8.  R.  L.  135,  §  17. 

1  Section  17.     A  husband  shall  not  be  entitled  to  his  curtesy  in  ad-  to'ha?"'^ "°' 

2  dition  to  the  provisions  of  his  wife's  will,  nor  a  widow  to  her  dower  in  curtesy  or 

1  !•    •  1  •    •  i»    1  1         1  i»  'II  1  1  1    .     1       Widow  clower  in 

3  addition  to  the  provisions  or  her  husband  s  will,  unless  such  plainly  addition  to 

4  appears  by  the  will  to  have  been  the  intention  of  the  testator.  wiuyuniess? 


1783,  24,  §  8.  R.  L.  135,  §  IS.  135  Mass.  326. 

R.  S.  80,  §  11.  12  Pick.  146.  140  Mass.  662. 

G.  S.  92,  §  24.  5  Met.  277.  144  .Mass.  564. 

1861,  164,  §  1.  4  Gush.  174.  186  Mass.  14. 

P.  S.  127,  §  20.  113  Mass.  246. 


etc. 


2146 


WILLS. 


[Chap.  191. 


PROVISIONS   FOB   SPECIAL   CASES. 


Devise  to 
give  fee. 
R.  S.  62,  §  4. 
G.  S.  92,  §  5. 
P.  S.  127,  §  24. 


Section  18.  A  devise  shall  convey  all  the  estate  which  the  testator 
coukl  lawfully  devise  in  the  land  mentioned,  unless  it  clearly  appears  by 
the  will  that  he  intended  to  convey  a  less  estate.  R.  L.  135,  §  22. 


1  Gush.  93. 
4  Gray,  348. 
12  Gray,  37(1. 
97  Mass.  413. 


9S  Mass.  75. 
108  Mass.  529. 
140  Mass.  92. 
147  Mass.  570. 


168  Mass.  144. 
170  Mass.  403,  540. 

183  Mass.  251. 

184  Mass.  169. 


192  Mass.  486. 
202  Mass.  512. 
225  Mass.  311,  380. 
236  Mass.  182. 


Land  acquired 
after  making 
of  will  to  pass 
by  it. 

R.  S.  62.  §  3. 
G.  S.  92,  §  4. 
P.  S.  127.  §  25. 


Section  19.     An  estate,  right  or  interest  in  land  acquired  by  a  tes-  1 

tator  after  the  making  of  his  will  shall  pass  thereby  in  like  manner  as  2 

if  possessed  by  him  at  the  time  when  he  made  his  will,  unless  a  different  3 

intention  manifestly  and  clearly  appears  by  the  will.        R.  l.  135,  §  23.  4 


6  Mass.  149. 
5  Pick.  112. 
1  Met.  390. 


7  Met.  141. 

12  Met.  169,  262. 

1  Cush.  107,  118. 


3  Cush.  366. 

4  Cush.  369. 
106  Mass.  578. 


128  Mass.  41. 
170  Mass.  403. 
192  Mass.  596. 


Child  not 
provided  for 
in  will. 

1700-1,  4,  §  2. 
1783,  24,  §  8. 
R.  S.  62,  5  21. 
G.  S.  92,  I  25. 
P.  S.  127,  §  21. 
R.  L.  135,  §  19. 
11  Met.  294. 
2  Gray,  535. 


Section  20.     If  a  testator  omits  to  provide  in  his  will  for  any  of  his  1 

children  or  for  the  issue  of  a  deceased  child,  they  shall  take  the  same  2 

share  of  his  estate  which  they  would  have  taken  if  he  had  died  intes-  3 

tate,  unless  they  have  been  provided  for  by  the  testator  in  his  lifetime  4 

or  unless  it  appears  that  the  omission  was  intentional  and  not  occa-  5 

sioned  by  accident  or  mistake.  6 


3  Gray,  367. 

4  Allen,  512. 

5  Allen,  257. 
8  Allen,  551. 
11  AUen,  47. 


97  Mass.  439. 
101  Mass.  125. 
106  Mass.  320. 
112  Mass.  184. 
123  Mass.  8. 


126  Mass.  135. 
132  Mass.  131. 
137  Mass.  86. 
164  Mass.  38. 
170  Mass.  403. 


182  Mass.  293. 
194  Mass.  40. 
222  Mass.  140. 
133  U.  S.  216. 


Posthumous 
children. 


Section  21.     If  a  child  of  a  testator,  born  after  his  father's  death,  1 

i7S3~2'4*'§V"    ^^^  "^  provision  made  for  him  by  his  father  in  his  will  or  otherwise,  2 

he  shall  take  the  same  share  of  his  father's  estate  which  he  would  have  3 

taken  if  his  father  had  died  intestate.         R.  l.  135,  §  20.         137  Mass,  527.  4 


R.  S.  62,  §  22. 
G.  S.  92,  §  26. 
P.  S.  127,  §  22. 


Sgatirdy^ing  Section  22.  If  a  devise  or  legacy  is  made  to  a  child  or  other  relation 
i78"'24^^l'8°'^'  °^  ^'^^  testator,  who  dies  before  the  testator,  but  leaves  issue  surviving 
R- 1 'p.' 1 24.  the  testator,  such  issue  shall,  unless  a  different  disposition  is  made  or 
p.'s.'i27,  §  23.  required  by  the  will,  take  the  same  estate  which  the  person  whose  issue 
18  pick.  41.    '  they  are  would  have  taken  if  he  had  survived  the  testator. 

5  Met.  396.  108  Mass.  382.  195  Mass.  520.  212  Mass.  432,  454. 

7  Met.  141.  145  M.-iss.  517.  196  Mass.  562.  214  Mass.  520. 

9  Cush.  122.  155  Mass.  415.  206  Mass.  289.  222  Mass.  283. 

16  Gray,  305.  162  Mass.  448.  210  Mass.  115.  229  Mass.  267. 

101  Mass.  36.  189  Mass.  266. 


Devises  of 
real  estate 
subject  to 
mortgage. 
1909,  198, 
§§1.3. 


Section  23.  In  all  wills  made  subsequent  to  January  first,  nineteen  1 
hundred  and  ten,  a  specific  devise  of  real  estate  subject  to  a  mortgage  2 
given  by  the  testator,  unless  the  contrary  shall  plainly  appear  by  his  3 
will,  shall  be  deemed  to  be  the  devise  of  the  interest  only  which  the  4 
testator  had  at  the  time  of  his  decease  in  such  real  estate  over  and  above  5 
such  mortgage,  and  if  the  note  or  obligation  of  the  testator  secured  by  6 
such  mortgage  be  paid  out  of  his  other  property  after  his  decease,  the  7 
executor  of  his  will  or  the  administrator  with  the  will  annexed  of  his  8 
estate  shall,  at  the  request  of  any  person  interested  and  by  leave  of  the  9 
probate  court,  sell  such  real  estate  specifically  devised  for  the  purpose  10 
of  satisfying  the  estate  of  the  testator  for  the  amount  so  paid,  together  11 
with  the  costs  and  expenses  thereof.  12 


ion 

P 


Chap.  191.]  wills.  2147 

1  Section  24.     If  a  testator  devises  land  of  which  he  is  not  seized,  but  Devise  of  land 

2  in  which  he  has  a  right  of  entry,  or  if,  after  making  a  will,  he  is  dis-  testator  has 

3  seized  of  land  de\ised  thereby,  such  land  shall  ne\ertheless  pass  to  the  eStry.'^'" "' 

4  devisee  in  like  manner  as  it  would  have  descended  to  the  testator's  o.  s.  tf.  §  f. 

5  heirs  if  he  had  died  intestate,  and  the  devisee  shall  have  the  same  remedy  ^  f;  ^^j'  |||- 

6  for  the  recovery  of  such  land  as  such  heirs  might  ha\'e  had.  lo  Mass.  isi. 

15  Mass.  115.  15  Pick.  1S5.  12  Met.  501. 

CONTRIBUTION   AMONG   DEVISEE.S   AND   LEGATEES. 

1  Section  25.     If  a  posthumous  child  or  a  child,  or  the  issue  of  a  child,  fo°n*a[!'e"ui 

2  omitted  in  the  will  takes  under  section  twentv  or  twenty-one  a  portion  port;""  °' 

0  p      1  p  1  •  T  *ii    1  1  i»  11       1        posthumous  or 

6  01  the  estate  oi  a  testator,  such  portion  shall  be  taken  from  ail  the  omitted  child. 

4  devisees  and  legatees  in  proportion  to  and  not  exceeding  the  value  of  r.  s.'62,'i  23. 

5  what  they  respectively  receive  under  such  will,  unless  in  consequence  p.s.'i27,  §  27. 

6  of  a  specific  devise  or  legacy  or  of  some  other  provision  of  the  will  a  m^Ma^ss'.  mt^' 

7  different  apportionment  is  found  necessary  to  give  effect  to  the  testa- 

8  tor's  intention  relative  to  that  part  of  his  estate  which  passes  by  his  will. 

1  Section  26.     If  property  which  is  given  by  will  is  taken  from  a  Contribution 

2  devisee  or  legatee  for  the  payment  of  the  debts  of  the  testator,  all  the  i^  tlkra°fCr'the 

3  other  devisees  and  legatees  shall,  subject  to  the  following  section,  con-  SebtT°'  °^ 

4  tribute  their  respective  proportions  of  the  loss  to  the  person  from  whom  Jyll'l'/^j  Is' 

5  such  property  is  taken,  so  that  the  loss  may  fall  on  all  the  devisees  and  g- 1  p'  1 15. 

6  legatees  in  proportion  to  and  not  exceeding  the  value  of  the  property  P-  s.  127.  §  2s. 

7»         i   T  1  R.  L.  135,  §  26. 

received  by  eacli. 

6  Mass.  149.  1  Cush.  107.  192  Mass.  79,  596.  213  Mass.  117. 

1  Section  27.     If  the  testator,  by  making  a  specific  devise  or  bequest.  Special  appro- 

2  has  virtually  exempted  a  devisee  or  legatee  from  liability  to  contribute  estate  made  by 

3  with  the  others  for  the  payment  of  the  debts,  or  if  by  any  other  pro-  fono''»°d.  ° 

4  visions  in  his  will  he  has  prescribed  or  required  an  appropriation  of  his  27.^'  ^"'  ^^  '^' 

5  estate  different  from  that  prescribed  in  the  preceding  section,  his  property  2i  ^'  ^"'  ^^  ^°' 

6  shall  be  appropriated  and  applied  in  conformity  with  his  will,  so  far  as  ^-  ^  ^^^^  §  2^- 

7  such  appropriation  and  application  can  be  made  without  afi'ecting  the  22>ick.288. 

8  liability  of  his  whole  estate  for  the  payment  of  his  debts.  4  Alien',  179'. 

13  Allen.  252.  122  Mass.  282.  127  Mass.  64. 

106  Mass.  100.  124  Mass.  228.  213  Mass.  117. 

1  Section  28.     If  a  posthumous  child  or  a  child,  or  the  issue  of  a  child,  on'i',teT°h,id°'' 

2  omitted  in  the  will  takes  under  section  twenty  or  twentv-one  a  portion  iiaWeanden- 

•^  ■■  ^  titled  to  con- 

3  of  the  estate  of  a  testator,  such  portion  of  the  estate  shall,  for  the  pur-  tribution 

4  poses  of  the  two  preceding  sections,  be  considered  as  if  it  had  been  de-  c'.  s.  92.  §  32! 

5  vised  or  bequeathed  to  such  child  or  other  descendant;    and  he  shall  r.l.  135,  §28. 

6  contribute  with  the  devisees  and  legatees,  and  be  entitled  to  claim 

7  contribution  from  them,  as  before  provided. 

1  Section  29.     If  a  person  who  is  liable  to  contribute  according  to  the  insolvency  of 

2  three  preceding  sections  is  insolvent  or  unable  to  pay  his  just  proportion  feg™!!.""^ 

3  of  the  contribution  required,  the  other  persons  so  liable  to  contribute  oil 92!  §33! 

4  shall  be  severally  liable  for  the  loss  occasioned  bv  such  insolvencv,  each  £•?•  Wr\?,n' 

r  •  •  1  !•  1  1  t      1  R.  L.  135,  §  29. 

5  one  in  proportion  to  and  not  exceeding  the  value  or  the  property  re- 

6  ceived  by  him  from  the  estate  of  the  deceased;   and  if  a  person  who  is 

7  so  liable  dies  without  having  paid  his  proportion,  his  executors  and  ad- 

8  ministrators  shall  be  liable  therefor  in  like  manner  as  if  it  had  been  his 

9  own  debt  and  to  the  extent  to  which  he  would  have  been  liable  if  living. 


2148 


PROBATE    OF   WILLS,    APPOINTMENT   OF   EXECUTORS.       [ChAP.    192. 


Contribution  if 
estate  is  taken 
from  devisee 
for  dower,  etc. 
1839,  96,  §  1. 
G.  S.  92,  §  36. 
P.  S.  127.  §  32. 
R.  L.  135.  §  30. 
1  Cush.  107. 
137  Mass.  527. 


Section  30.  If  the  estate  of  a  devisee  under  a  will  is  taken  for  the 
curtesy  of  the  husband  or  dower  of  the  widow  of  the  testator,  all  the 
other  devisees  and  legatees  shall  contribute  their  respective  proportions 
of  the  loss  to  the  person  from  whom  the  estate  is  so  taken,  so  that  the 
loss  may  fall  upon  all  the  devisees  and  legatees  in  proportion  to  and  not 
exceeding  the  value  of  property  received  by  them  under  the  will;  but  no 
devisee  or  legatee  shall  contribute  if  exempted  therefrom  by  the  will. 


REFERENCES. 

Agreement  to  make  will,  Chap.  259,  §  5. 
Cemetery  lots,  Ch.ap.  11-1,  §  31. 

Construction  of  word  "will"  to  include  codicil,  Chap.  4,  §  6,  cl.  37. 
Witnesses,  Chap.  233. 

Hospital  records  to  prove  soundness  of  mind,  Chap.  233,  §  79. 
Appointing  guardian  of  minor  child  by  will,  Chap.  201,  §  3. 

§  14.    Disclosures  under  this  section  not  to  be  used  as  evidence  in  certain  prosecu- 
tions, Chap.  266,  §  39. 

§  15.    Share  of  surviving  husband  or  widow.  Chap.  190,  §  1. 
§§  20,  21.     Jurisdiction  over  these  matters,  Chap.  215,  §  6. 


CHAPTER     192. 


PROBATE   OF   WILLS   AND   .\PPOINTlMENT  OF  EXECUTORS. 


Sect. 

1.  Affidavits  to  be  annexed  to  certain  pe- 

titions in  the  probate  court. 

2.  Proof  of  will,  etc. 

3.  Certain    decrees    conclusive    after    one 

year. 

4.  Letters  to  issue. 

5.  If  one  executor  does  not  accept,  letters 

may  be  granted  to  the  others. 


Sect. 

6.  If  one  executor  is  a  minor,  the  others 

may  act  during  minority. 

7.  Appointment   of    judge   or  register  of 

probate  as  executor,  etc. 

8.  Executor  of  executor. 

9.  Allowance  of  foreign  wills. 

10.  Same  subject. 

11.  Settlement  of  estate  in  such  cases. 


Section  1.     A  petition  for  the  probate  of  a  will,  letters  of  adminis- 


Affidavits  to  be 

annexed  to  cer-  ^  .  «      , 

thifr*^  bat°°^ '°  tration  or  letters  testamentary  shall  have  annexed  an  affidavit  of  the 
court.  petitioner  or  of  one  of  the  petitioners  that  the  statements  therein  made 

1891,414.  s.  1        t-  _  f  _  .  .      _.     . 


r.'l!  i3g!  §  L    are  true  to  the  best  of  his  knowledge  and  belief. 


1905,  90. 


Proof  of  will, 

etc. 

1817,  190,  §  33. 

R.  S.  62,  §  15. 

G.S.  92,  §  19. 

P.  S.  129,  §  1. 

1901,242. 

R.  I..  ISfi,  §  2. 

1912,  493. 

3  Mass.  236. 


Section  2.     If  it  appears  to  the  probate  court,  by  the  consent  in  1 

writing  of  the  heirs,  or  by  other  satisfactory  evidence,  that  no  person  2 

interested  in  the  estate  of  a  deceased  person  intends  to  object  to  the  3 

probate  of  an  instrument  purporting  to  be  the  will  of  such  deceased,  4 

the  court  may  grant  probate  thereof  upon  the  testimony  of  one  only  of  the  5 

subscribing  witnesses;    and  the  affidavit  of  such  witness,  taken  before  6 

the  register  of  probate,  may  be  received  as  evidence.    If  the  probate  7 

of  such  instrument  is  assented  to  in  writing  by  the  widow  or  husband  of  8 

the  deceased,  if  any,  and  by  all  the  heirs  at  law  and  next  of  kin,  it  may  9 

be  allowed  without  testimonv.  10 


Certain  decrees 

conclusive 

after  one  vear. 

1889,  435. 

R.  L.  136,  §  3. 

1917,22. 

1918,  257, 
§386. 

1919,  5. 

1920,  2. 

3  Allen,  87. 


Section  3.     A  decree  allowing  a  will,  or  compromise  of  a  will,  or  ad-  1 

indicating  the  intestacy  of  the  estate  of  a  deceased  person,  in  any  court  2 

in  the  commonwealth  having  jurisdiction  thereof,  shall,  after  one  year  3 

from  the  rendition  thereof,  or,  if  proceedings  for  its  reversal  are  had,  4 

after  one  year  from  its  establishment,  be  final  and  conclusive  in  favor  of  5 

purchasers  for  value,  in  good  faith,  without  notice  of  any  adverse  claim,  6 


Ch.\P.   192.]         PROBATE   OF  WILLS,   APPOINTMENT   OF  EXECUTORS.  2149 

7  of  any  property,  real  or  personal,  from  devisees,  legatees,  heirs,  execu-  144  Mass.  415. 

8  tors,  administrators,  guardians  or  conservators;   and  in  favor  of  execu-  225 Mass!  12.' 

9  tors,  administrators,  trustees,  guardians  and  conservators,  who  have 

10  settled  their  accounts  in  due  form  and  have  in  good  faith  disposed  of  the 

11  assets  of  the  estate  in  accordance  with  law;  and  also  in  favor  of  persons 

12  who  have  in  good  faith  made  payments  to  executors,  administrators, 

13  trustees,  guardians  or  conservators.    If  a  subsequent  decree  reverses  or 

14  qualifies  the  decree  so  originally  rendered,  heirs,  devisees,  legatees  and 

15  distributees  shall  be  liable  to  a  subsequent  executor,  administrator  or 

16  other  person  found  entitled  thereto,  for  any  proceeds  or  assets  of  the 

17  estate  received  by  them  under  the  former  decree,  and  in  such  case  pro- 

18  ceeds  of  real  property  shall  be  treated  as  real  property.     This  section 

19  shall  not  make  an  adjudication  of  the  fact  of  death  conclusive. 

1  Section  4.     If  a  will  has  been  duly  proved  and  allowed,  the  probate  Letters  to 

2  court  shall  issue  letters  testamentary  thereon  to  the  executor  named  R^aes. §  1. 

3  therein,  if  he  is  legally  competent  and  a  suitable  person  and  accepts  the  p.f.'^fg.Vi 

4  trust  and  Muthin  thirty  days  gives  bond  to  discharge  the  same;   other-  fgoV  I'so  ^  *" 

5  wise  said  court  may  grant  letters  of  administration  on  the  estate  as  pro-  Pofi^*''' 

6  vided  in  the  following  chapter.  1919, 5.  1920. 2. 

6  Mass.  149.  Ill  Mass.  331.  152  Mass.  24. 

1  Section  5.     If  a  person  named  as  executor  in  a  will  has  deceased  or  if  one  executor 

2  refuses  to  accept  the  trust,  or,  after  being  duly  cited  for  the  purpose,  w1er°°4ay'^be'' 

3  neglects  to  accept  the  same  or  neglects  for  twenty  days  after  the  pro-  oSera.'' '°  ""* 

4  bate  of  the  will  to  give  bond  according  to  law,  the  court  shall  grant  R^l'la'fi^" 

5  letters  testamentary  to  the  other  executors,  if  there  are  any  competent  Jf^|' 93^56 

6  and  willing  to  accept  the  trust.  p.  s.  129,  §  3.  r.  l.  ise,  §  5. 

Ill  Mass.  331.  172  Mass.  496.  1S3  Mass.  575, 

1  Section  6.     If  a  person  named  as  executor  in  a  will  is  at  the  time  of  ."  one  executor 

1  1  1  P  •  1  1  .«  IS  a  minor,  the 

2  the  probate  thereof  a  minor,  the  other  executor  or  executors,  if  any,  others  may  act 

iiii«»  I  *ii  •  •  pii  1  during  mi- 

3  shall  administer  the  estate  until  the  minor  arrives  at  full  age,  when,  nonty. 

4  upon  giving  bond  according  to  law,  he  may  be  admitted  as  a  co-executor  r.  s.'es.'s  6. ' 

5  of  such  will.  G.  S.  93,  §  7.  p.  S.  129,  §  4.  R.  L.  136,  §  6. 

1  Section  7.     If  a  judge  or  register  of  probate  desires  to  be  appointed  „/'?  j°g™r"' 

2  executor  of  the  will  or  administrator,  or  administrator  with  the  will  an-  register  of  pro- 

3  nexed,  of  the  estate  of  his  wife,  child,  father  or  mother,  who  at  the  time  ecutor,  etc 

4  of  their  decease  were  inhabitants  of  or  resident  in  his  county,  such  will  §§  i,'2. ' 

5  may  be  proved  and  allowed  and  appointment  made  and  all  subsequent  §§7,'8.'^^' 

6  proceedings  relative  to  the  estate  may  be  had  in  the  probate  court  of 

7  any  adjoining  county,  and  the  register  thereof  shall  forthwith  transmit 

8  to  the  register  of  the  county  where  the  deceased  resided,  or  of  which  said 

9  deceased  was  an  inhabitant,  a  true  and  attested  copy  of  all  papers  relat- 

10  ing  thereto  filed  and  entered  on  the  docket,  which  shall  be  recorded  by 

1 1  the  register  to  whom  they  are  transmitted. 

1  Section  8.     The  executor  of  the  will  of  an  executor  shall  not,  as  such,  Executor  of 

2  administer  on  the  estate  of  the  first  testator.  ""''^  °^' 

1783,  24,  §  19.  G.  S.  93,  §  9.  R.  L.  136,  §  9.  156  Mass.  313. 

R.  S.  63,  §  10.  P.  S.  129,  §  10.  131  Mass.  408.  157  Mass.  160. 

1  Section  9.     A  person  interested  in  a  will  which  has  been  proved  and  Allowance  of 

2  allowed  in  any  other  of  the  United  States  or  in  a  foreign  country  accord-  I'ss.  12, 


2150 


APPOINTMENT   OF  ADMINISTRATORS. 


[Ch.\p.  193. 


R.  S.  62.  §§  17, 
IS. 

G.  S.  92.  §  21. 
1878,201. 
1879-  185,  I  1. 
P.  S.  127,  §  15. 
R.  L.  136,  §  10. 
204  Mass.  394. 
210  U.  S.  82. 


ing  to  the  laws  of  such  state  or  country,  or  in  a  will  which,  by  the  laws  3 

of  the  state  or  country  in  which  it  was  made,  is  valid  without  probate,  4 

may  produce  to  the  probate  court  in  any  coimty  where  there  is  any  5 

property,  real  or  personal,  on  which  such  will  may  operate,  a  copy  of  6 

such  will  and  of  the  probate  thereof,  duly  authenticated,  or,  if  such  will  7 

is  valid  without  probate  as  aforesaid,  a  copy  of  the  will  or  of  the  official  8 

record  thereof  duly  authenticated  by  the  proper  officer  having  custody  9 

of  such  will  or  record  in  such  state  or  country;  and  the  court  shall  there-  10 

upon  assign  a  time  and  place  for  a  hearing  and  cause  notice  thereof  to  11 

be  given  to  all  persons  interested  by  publication  in  a  newspaper  three  12 

weeks  successively,  the  first  publication  to  be  thirty  days  at  least  before  13 

the  time  assigned  for  the  hearing.  14 


Section  10.  If  at  such  hearing  the  court  finds  from  the  copies  be- 
fore it  and  any  additional  proof  as  to  the  authenticity  and  execution  of 
the  will  that  the  instrument  ought  to  be  allowed  in  this  commonwealth 


Same  subject. 
1785,  12,  §  2. 
R.  S.  62,  §  19. 
G.  S.  92,  I  22. 
1879,  185,  §  1. 

R.  L.  136,  §  li.  as  the  last  will  of  the  deceased,  it  shall  order  the  copv  to  be  filed  and  re- 

12  Met.  421. 
11  Cush.  519. 
10  Gray,  162. 

13  Gray,  330. 


corded,  and  the  will  shall  then  have  the  same  effect  as  if  it  had  been 
originally  proved  and  allowed  in  the  probate  court  in  the  usual  manner. 

Ill  Mass.  331.  204  Mass.  394.  210  U.  S.  82. 


fstatlTn"u?h  Section  11.  After  allowing  a  will  under  the  two  preceding  sections, 
1785^' 12  5 1  *^^®  probate  court  shall  grant  letters  testamentary  on  such  will  or  letters 
R.s.'62,'§  20.  of  administration  with  the  will  annexed,  and  shall  proceed  in  the  settle- 
p.'s."i27,  §  17.  ment  of  the  estate  which  may  be  found  in  this  commonwealth  in  the 
id  Gush.  i7.  ■  manner  pro^'ided  in  chapter  one  hundred  and  ninety-nine  relative  to 
204Mfss.i4.   such  estates.  2iou.s.82. 


REFERENCES. 

§  4.     Right  of  trust  company  or  national  bank  to  be  appointed  executor,  Chap. 

172,  §  52,  and  note  at  end  of  chapter. 
§  6.     Failure  to  give  bond  as  required,  Chap.  20.5,  §  8.    As  to  this  section,  see  also 

Chap.  193,  §  8. 
§  9.     Waiver  of  notice  by  assent.  Chap.  21.5,  §  47. 

Service  of  citation  by  registered  mail,  Chap.  215,  §  46. 


CHAPTER     193. 

APPOINTMENT  OF  ADMINISTRATORS. 


Sect. 

ordinabt  administration. 

1.  Administrafion,  to  whom  granted. 

2.  To  next  of  kin  without  notice. 

3.  Right  of  commissioner  of  corporations 

and  taxation. 

4.  Administration  not  to  be  granted  after 

twenty  years. 

5.  Exception. 

6.  Letters  of  administration  to  be  revoked 

on  probate  of  a  will. 

ADMINISTR.ITION  WITH  THE  WILL  ANNEXED. 

7.  Administration  with  the  will  annexed. 

8.  Administration  with  the  wUl  annexed 

may  be  granted  when  executor  is  a 


Sect. 

administration  db  bonis  non. 
9.  De  bonis  non. 


SPECIAL    ADMINISTRATION. 

10.  Appointment  of  special  administrators. 

1 1 .  Powers  and  duties. 

12.  Same  subject. 

13.  Advancements   to   widow  or    children. 

Appeal. 

14.  PajTnent  of  certain  debts  and  expenses. 

15.  Effect    of    special    administration    on 

claims  of  creditors. 

16.  Powers    of    special    administrator    to 

cease  on  appointment  of  executor, 
etc. 


CH.iP.    193.]  APPOINTMENT   OF   ADMINISTRATORS.  2151 


ORDINARY  ADMINISTRATION. 

1  Section  1.    Administration  of  the  estate  of  a  person  deceased  intes-  Administratiou, 

2  tate  shall  be  "rranted  to  one  or  more  of  the  persons  hereinafter  mentioned  sranteT 

3  and  in  the  order  named,  if  competent  and  suitable  for  the  discharge  of  i692-3^i4;m. 

4  the  trust  and  willing  to  undertake  it,  unless  the  court  deems  it  proper  to  \l^f^  isbf^u. 

5  appoint  some  other  person:  r^s'64°§4 

6  First,  The  widow  or  surviving  husband  of  the  deceased.  isso,  142  §  1. 

7  Second,  The  next  of  kin  as  the  court  shall  determine.  i853!4i9. 

8  Third,  If  none  of  the  above  are  competent  or  if  they  all  renounce  the  p.' I.' 136,  §  i. 

9  administration  or  without  sufficient  cause  neglect  for  thirty  days  after  ^^°[  137;  |  f 

10  the  death  of  the  intestate  to  take  administration  of  his  estate,  one  or  }|p;p^^®^/°^" 

11  more  of  the  principal  creditors,  after  public  notice  upon  the  petition.        JV'.fh'so^^' 

12  Fourth,  If  there  is  no  widow,  husband  or  next  of  kin  within  the  com-  4  Cush!  40s.' 

13  monwealth,  a  public  administrator.  195  Mass.  133. 

222  Mass.  102.  223  Mass.  540.  225  Mass.  487.  235  Mass.  33. 

1  Section  2.     Administration  of  the  estate  of  an  intestate  may  be  To  next  of  kin 

2  granted  to  one  or  more  of  the  next  of  kin  or  any  suitable  person,  if  the  ^85?26o.°"''^' 

3  husband  or  widow  and  all  the  next  of  kin  resident  in  the  commonwealth,  Jf  ^l;  137;  |  2; 

4  who  are  of  full  age  and  legal  capacity,  consent  in  writing  thereto.    Notice 

5  of  the  petition  may  be  dispensed  with  as  if  all  parties  entitled  thereto 

6  had  signified  their  assent  or  waived  notice. 


1       Section  3.     If  a  person  dies  leaving  an  estate  which  may  be  liable  to  Right  of 

2,  1  1         j_  *    j_      j_  1  •  J  commissioner 

an  income  tax  under  chapter  sixty-two  or  a  legacy  or  succession  tax  ot  corpora- 

3  under  chapter  sixty-five,  and  a  will  disposing  of  such  estate  is  not  offered  tSion'' 

4  for  probate,  or  an  application  for  administration  made,  within  four  months  ^^l\  t5^'§Vs'' 

5  after  his  decease,  the  probate  court,  upon  application  by  the  commis-  J^^J-  |g^'  5  '■^-■ 

6  sioner  of  corporations  and  taxation,  may  appoint  an  administrator.        iv,  §  22. ' 

1911,  551.  1915,  04.  1919,  349,  §  6;  350,  §  53. 

1  Section  4.     Administration  shall  not  be  originally  granted  after  the  Administration 

2  expiration  of  twenty  years  from  the  death  of  the  testator  or  intestate,  g°ant°d  after 

3  except  in  cases  expressly  authorized  by  law.  i7S3, 36,  §  lo.  twenty  years. 

1817,  190.  §  17.  G.  S.  94.  §  3.  R.  L.  137,  §  3.  146  Mass.  155. 

R.  S.  64,  §  13.  P.  S.  130,  §  3.  6  Gush.  493.  208  Mass.  501. 

1  Section  5.     If  administration  has  not  been  taken  on  the  estate  of  a  Exception. 

2  testator  or  intestate  within  twenty  years  after  his  decease,  and  any  g.  s.'94,§4. 

3  property  or  claim  or  right  thereto  remains  undistributed  or  thereafter  188^^,2^2.^^' 

4  accrues  to  such  estate  and  remains  to  be  administered,  original  adminis-  ^^l'  Jp  .  ^ 

5  tration  may  for  cause  be  granted,  but  it  shall  afi'ect  no  other  property.  Joq^/"^'  g, 

6  Before  granting  such  administration  the  court  shall  require  the  petitioner  sbs  Mass!  soi. 

7  to  furnish  evidence  of  the  death  of  the  intestate  and  such  other  e\idence 

8  as  the  court  may  require.     In  the  absence  of  satisfactory  evidence  of 

9  death  and  of  interest  on  the  part  of  the  petitioners,  the  probate  court 

10  shall  refer  the  matter  to  the  attorney  general,  or  to  any  district  attorney, 

1 1  who  shall  investigate  and  report  thereon  for  the  advice  and  assistance  of 

12  the  court. 

1  Section  6.     If,  after  the  granting  of  letters  of  administration  as  Letters  of  ad- 

2  upon  an  intestate  estate,  a  will  of  the  person  deceased  is  duly  proved  berevoked" '° 

3  and  allowed,  such  letters  shall  be  revoked;  and  the  executor  or  an  admin-  Sifh*'*  °'  ^ 


on 


2152 


APPOINTMENT   OF   .UJMINISTRATORS. 


[Chap.  193. 


r^'m^s  16''*'  istrator  with  the  will  annexed  may  demand,  collect  and  sue  for  all  the    4 
Sf?oA^/;     personal  property  of  the  deceased  which  remains  unadministered.  5 

r,  a.  \i\j,  so.-'  Ait 

R.  L.  137,  §  5. 


Administration 
with  the  will 
annexed. 
1692-3,  14,  §  2. 
1783,  24,  §  16. 
R.  S.  63,  §  5. 
1855,  111. 
G.  S.  93.  §  6. 
P.  S.  130,  §  6. 
R.  L.  137,  §  6. 
1911,  588. 
1919,208,  §  1. 
Ill  Mass.  331. 
172  Mass.  490. 
191  Mass.  96. 


ADMINISTR-^TION   WITH   THE   WILL   ANNEXED. 

Section  7.  If  no  executor  is  named  in  a  will,  or  if  all  the  executors  1 
therein  named  are  dead  or  incompetent  or  refuse  to  accept  the  trust,  2 
or  if,  after  being  duly  cited  therefor,  the  executor  neglects  to  accept  the  3 
trust,  or  if  he  neglects  for  thirty  days  after  the  probate  of  the  will  to  give  4 
bond  according  to  law,  the  court  shall  commit  administration  of  the  estate,  5 
with  the  will  annexed,  to  any  person  interested  in  the  will  of  said  de-  6 
ceased,  to  any  creditor  of  the  deceased  or  to  any  suitable  person;  but  7 
after  the  expiration  of  said  thirty  days,  and  before  letters  of  administra-  8 
tion  with  the  will  annexed  have  been  granted,  the  court  may  grant  letters  9 
testamentary  to  any  person  named  as  executor  who  gives  the  bond  10 
required  by  law.  If  a  person  named  as  executor  in  a  will  petitions  for  the  1 1 
probate  of  the  same  and  dies,  declines  or  becomes  unable  to  act  before  12 
final  decree  is  entered  on  said  petition,  any  person  interested  in  the  will  13 
of  said  deceased,  or  any  creditor  of  the  deceased,  or  any  suitable  person,  14 
may,  on  petition,  be  allowed  to  enter  and  to  prosecute  the  original  15 
petition  for  probate,  to  apply  for  letters  of  administration  with  the  will  16 
annexed,  and  to  act  and  proceed  in  any  proposed  compromise  under  17 
sections  fifteen  and  sixteen  of  chapter  two  hundred  and  four.  If  it  ap-  18 
pears  that  there  are  no  known  heirs  of  the  deceased,  a  public  administrator  19 
of  the  county  shall  be  appointed  to  the  trust.  20 


m^thfwin°°  Section  8.  If  a  person  named  as  executor  is  at  the  time  of  the  pro- 
begranted"^  bate  of  the  wiU  under  the  age  of  twenty-one,  administration  with  the 
when  executor  -^vill  annexed  may  be  granted  during  his  minority,  unless  there  is  another 
1783, 24,  §  17.    executor  who  accepts  the  trust. 

R.  S.  63,  §  6.  G.  S.  93,  §  7.  P.  S.  130,  §  7.  R.  L.  137.  §  7. 


De  bonis  non. 
1723-4.  3. 

1782,  25. 
§§  1-3. 

1783,  24.  §  19: 
36,  §  10. 
1817,  190,  §  17 
R.  S.  63, 

§§  7,  10;   64, 
§§  14,  15. 
1843,  97. 
G.  S.  101, 
§§1.2,5. 
P.  S.  130,  §  9. 
1890,  408,  §  2. 
R.  L.  137.  §  8. 
1919,  208.  §  1. 
2  Mass.  168. 

2  Pick.  360. 

3  Met.  187. 
7  Met.  20. 
128  Mass.  5S7. 


administr.\tion  de  bonis  non. 

Section  9.     If  a  sole  or  surviving  executor  or  administrator  dies,  re-  1 

signs  or  is  removed  before  having  fully  administered  an  estate,  and  there  2 

is  personal  property  of  the  deceased  not  administered  to  the  amount  of  3 

twenty  dollars,  or  debts  to  that  amount  remaining  due  from  the  estate,  4 

or  anjlhing  remaining  to  be  performed  in  execution  of  the  will,  or  if  5 

there  is  an  order  of  distribution  in  accordance  with  section  twenty-eight  6 

of  chapter  two  hundred  and  six,  the  probate  court  shall  grant  letters  7 

of  administration,  with  the  will  annexed,  or  othern-ise  as  the  case  may  8 

require,  to  one  or  more  suitable  persons  to  administer  the  goods  and  9 

estate  of  the  deceased  not  already  administered.    If  it  appears  that  there  10 

are  no  known  heirs  of  the  deceased,  a  public  administrator  of  the  county  11 

shall  be  appointed  to  the  trust.  12 


132  Mass.  326. 


143  Mass.  320. 


185  Mass.  22. 


214  Mass.  132. 


SPECI.^L   ADMIXISTR.\TI0N. 


Appointment 
of  special 
administrators. 
1834,  174,  §  1. 
R.  S.  64,  §  6. 
G.  S.  94,  §  6. 
1876,  200, 
§§  1,4. 
P.  S.  130,  §  10. 


Section  10.  If  the  judge  of  probate  deems  it  necessary  or  expedient, 
he  may,  at  any  time  and  place,  with  or  without  notice,  appoint  a  special 
administrator  who,  in  case  of  an  appeal  from  the  decree  appointing  him, 
shall  nevertheless  proceed  in  the  execution  of  his  duties  until  it  is  other- 
wise ordered  by  the  supreme  judicial  court,  and  may  in  like  manner  dis- 


CH-^P.    193.]  APPOINTMENT   OF  ADMINISTRATORS.  2153 

6  charge  him.    Such  appointment  and  discharge  shall  be  entered  forthwith  r  l._i37.  §9. 

7  on  the  records  of  the 

8  administrator,  if  any. 


7  on  the  records  of  the  court  and  notice  thereof  gi\'en  to  the  executor  or 


1  Section  11.     A  special  administrator  shall  collect  all  the  personal  J°j^|J^''°<' 

2  property  of  the  deceased  and  preserve  the  same  for  the  executor  or  ad-  Jf^f'i'^^i^- 

3  ministrator  when  appointed,  and  for  that  purpose  may  commence,  main-  iss's,  122. 

4  tain  and  defend  suits.    If  he  is  appointed  by  reason  of  delay  in  granting  p.'s.'iao.  §  12. 

5  letters  testamentary,  the  court  may  authorize  him  to  take  charge  of  the  wis,'  257,'  ^  ^°' 

6  real  property  of  the  deceased  or  of  any  part  thereof,  and  collect  rents,  f/ig^s 

7  make  necessary  repairs  and  do  all  other  things  which  it  may  consider  g^o'Ai'ass  32 

8  needful  for  the  preservation  of  such  real  property  and  as  a  charge  thereon.  233  Mass.  62. 

9  His  compensation  shall  be  such  as  the  court  allows. 

1  Section  12.     The  probate  court  may,  upon  such  notice  as  it  considers  same  subject. 

2  reasonable,  authorize  or  require  a  special  administrator  to  sell  or  do  such  r  s.'64,  §8. ' 

3  other  acts  relative  to  any  property  or  estate  in  his  charge  as  it  may  deem  G.^l.'gl.^l  s. 

4  necessary;   but  this  section  shall  not  give  to  the  special  administrator  ^^^^  ^^^^  ^  ^^■ 

5  other  or  greater  powers  than  an  administrator,  except  that  he  may  be  jsgg,  301, 

6  authorized  to  continue  the  business  of  the  deceased  for  the  benefit  of  his  233  Mass!  62. 

7  estate. 

1  Section  13.     Upon  petition  of  the  widow  or  of  any  child  of  the  de-  Advancements 

2  ceased,  the  probate  court  may,  after  notice,  make  a  reasonable  allowance  ch.id'ren"  °^ 

3  out  of  the  real  or  personal  property  in  the  hands  of  a  special  administra-  i859!'i43, 

4  tor  appointed  on  account  of  the  pendency  of  a  petition  relative  to  the  ^  g"g^ 

5  probate  of  a  will  or  the  appointment  of  an  administrator  or  of  an  ad-  §§  1. 10^ 

6  ministrator  with  the  will  annexed,  as  an  advancement  for  the  support  of  §§  13,  u. 

7  such  widow  or  children,  not  exceeding  such  portion  of  the  estate  as  they  r.  l!  137'.  §  12. 

8  would  finally  be  entitled  to.    An  appeal  from  a  decree  relative  to  such  Jeo  Mass!  232! 

9  allowance  shall  not  prevent  the  payment  of  the  allowance,  if  the  peti-  ^^^  ^^'^"^'  *^^- 

10  tioner  gives  bond  to  the  special  administrator,  with  sureties  approved 

11  by  the  court  and  conditioned  to  repay  it  if  the  decree  is  reversed. 

1  Section  14.     A  special  administrator  may  by  lea\'e  of  the  probate  Payment  of 

2  court  pay  from  the  personal  property  in  his  hands  the  expenses  of  the  and  "expenses. 

3  last  sickness  and  funeral  of  the  deceased,  the  expenses  incurred  by  the  a^s.'94.^§\i'.' 

4  executor  named  in  the  will  of  the  deceased,  or  by  any  other  person  pre-  fgs^/291'.^  ^^' 

5  senting  the  same  for  probate,  in  proving  the  will  in  the  probate  court  or  1^97, 199.    ^^ 

6  in  sustaining  the  proof  thereof  in  the  supreme  judicial  court  and  also,  isos,  153.' 

7  after  notice,  such  debts  due  from  the  deceased  as  the  probate  court  may 

8  approve. 

1  Section  15.     A  special  administrator  shall  not  be  liable  to  an  action  Effect  of 

2  by  a  creditor  of  the  deceased;  and  the  time  of  limitation  for  all  actions  mSration 

3  against  the  estate  shall  begin  to  run  only  after  the  granting  of  letters  c^d'to™  °^ 

4  testamentary  or  of  administration  in  the  usual  form  in  like  manner  and  R^s'el^s^o' 

5  subject  to  the  same  conditions  as  if  special  administration  had  not  been  §-§?^Ai';\ 

II  -p  I'lZ-ll  r-i  1  p.  S.  130,  §17. 

b  granted ;   but  11  an  appeal  is  taken  from  the  decree  ot  the  probate  court  R-  l-  i37,  §  is. 

7  appointing  an  executor  or  administrator  the  time  shall  run  in  like  manner 

8  and  subject  to  the  same  conditions  if  the  decree  is  affirmed,  from  the 

9  time  of  the  affirmation  if  the  bond  has  been  filed,  and,  if  not,  from  the 

10  date  of  the  filing  of  the  bond;   if  the  decree  is  reversed,  from  the  time 

1 1  when  an  appointment  is  finally  made  or  affirmed  and  the  bond  is  filed. 


2154 


PUBLIC   ADMINISTRATORS. 


[ClLiP.    194. 


Powers  of 
special  ad- 
ministrator to 
cease  on  ap- 
pointment of 
executor,  etc. 
1S34,  174,  §  3. 
R.  S.  64,  §  9. 
G.  S.  94.  §  12. 
P.  S.  130,  §  Ifi. 
R.  L.  137,  §  14. 


Section  16.     Upon  the  granting  of  letters  testamentary  or  of  ad-  1 

ministration,  the  powers  of  the  special  administrator  shall  cease.    Upon  2 

the  termination  of  his  powers,  the  special  administrator  shall  forthwith  3 

deliver  to  the  executor  or  administrator  or  to  such  person  as  is  otherwise  4 

lawfully  authorized  to  receive  it  all  the  estate  of  the  deceased  in  his  5 

hands;  and  the  executor  or  administrator  may  be  admitted  to  prosecute  6 

a  suit  commenced  by  the  special  administrator  in  like  manner  as  an  ad-  7 

ministrator  de  bonis  non  may  prosecute  a  suit  commenced  by  a  former  8 

executor  or  administrator.  ft 


REFERENCES. 

§     1.     Public  administrators,  Chap.  194. 

Right  of  trust  company  or  national  bank  to  be  appointed,  Chap.  172,  §  52, 
and  note  at  end  of  chapter. 

Jurisdiction,  Chap.  215,  §§  3,  7. 

Conclusiveness  of  decree.  Chap.  192,  §  3;  215,  §  2. 
§     5.     Insolvent  estates.  Chap.  198,  §  26. 

I     8.     Proceeding  where  one  of  two  or  more  executors  is  a  minor.  Chap.  192,  §  6. 
§     9.     Public  administrators,  Chap.  194,  §  S. 

§  12.     Power  of  the  court  to  authorize  executor  or  administrator  to  continue  busi- 
ness of  deceased.  Chap.  19.5,  §  7. 
§  14.     See  §  11  of  this  chapter;  also,  on  question  of  payment  of  debts,  Chap.  197,  §  1. 
§  15.     Time  within  which  suits  must  be  brought.  Chap.  197,  §  9. 


CHAPTER     194. 


PUBLIC  ADMINISTRATORS. 


Sect. 

1.  Appointment. 

2.  Bond. 

3.  Annual  accounts  to  be  rendered  if  gen- 

eral bond  is  given. 

4.  Duties. 

5.  Public  administrators  not  to  act  when 

heir,  etc.,  claims  the  right. 

6.  Compensation  in  certain  cases. 

7.  Powers  to  cease  when  will  is  proved  or 

heir  claims  administration. 

8.  Proceedings  on  death,  etc.,  of  public 

administrator. 

9.  Provisions  as  to  land. 

10.  Public  administrators,  etc.,  to  deposit 
balances  with  the  treasurer. 


12. 


13. 
14. 


Sect. 

11.  Annual  accounts. 

Surrender  of  letters  on  appointment  of 

successor. 
Completion  of  administration. 
Heirs,   etc.,   may  take   administration 
after  deposit  in  state  treasury. 

15.  Treasurer  to  pay  over  to  executor,  etc. 

16.  District  attorneys  to  prosecute  in  case 

of  neglect. 

17.  Disposition  of  estates  of  less  than  one 

hundred  dollars. 
Accounts    of   estates  of   less  than  one 
hundred  dollars. 


IS. 


i839?'i42!'ri.       Section  1.     There  shall  be  in  each  county  one  or  more  public  ad-  I 

p'  I'  131  S^i     ministrators,  not  exceeding  six  in  Middlesex  or  five  in  any  other  county,  2 

R.  L.  138, 1 1.    appointed  by  the  governor  with  the  advice  and  consent  of  the  council,  3 

who  shall  hold  office  for  five  years  from  the  time  of  their  appointment.  4 

1917,  12. 


1908, 

510, 

§  1. 

1913, 

246. 

Bond 

1839 

'l42 

§§  1. 

2. 

1849, 

123, 

§§2. 

3. 

G.  S 

95, 

§§  ( 

7,9. 

P.  S. 

131, 

§§f 

7,  9. 

R.  L 

138 

§§( 

7,9. 

General  bond. 

Section  2.  A  public  administrator  shall  give  bond  payable  to  the 
judge  of  the  probate  court  and  his  successors  for  the  faithful  perform- 
ance of  his  duties  in  like  manner  as  other  administrators,  with  the 
further  condition  to  comply  with  section  twelve. 

Instead  of  a  separate  bond  for  each  estate,  a  public  administrator 
may  give  a  general  bond  for  the  faithful  administration  of  all  estates  on 
which  letters  of  administration  may  be  granted  to  him  as  such  public 


Chap.  194.]  public  administrators.  2155 

8  administrator.    The  bond  shall  be  given  with  sufficient  surety  or  sure- 

9  ties,  in  such  sum  as  the  probate  court  orders,  payable  to  the  judge  of  said 

10  coiu-t  and  his  successors,  with  condition  substantially  as  follows: 

11  First,  To  make  and  return  to  the  probate  court,  within  three  months 

12  from  the  time  of  granting  to  him,  as  public  administrator,  letters  of 

13  administration  on  the  estate  of  a  person  deceased,  a  true  inventory  of  all 

14  the  real  and  personal  property  of  such  person  which  at  the  time  of 

15  making  thereof  shall  have  come  to  his  possession  or  knowledge. 

16  Second,  To  administer  according  to  law  all  personal  property  of  every 

17  such  person  which  may  come  to  his  possession  or  of  any  person  for  him, 

18  and  also  the  proceeds  of  any  of  the  real  property  of  such  person  which 

19  may  be  sold  by  him. 

20  Thirtl,  To  render  on  oath  a  true  account  of  his  administration  of 

21  every  such  estate  at  least  once  a  year  until  the  trust  is  fulfilled,  unless 

22  excused  therefrom  in  any  year  by  the  court;  and  also  to  render  such  ac- 

23  count  at  such  other  times  as  the  court  may  order. 

24  Fourth,  To  pay  the  balance  of  every  such  estate  remaining  in  his 

25  hands  upon  the  settlement  of  his  accounts  to  such  persons  as  the  court 

26  may  direct;    and  when  such  estate  has  been  fully  administered  to  de- 

27  posit  with  the  state  treasurer  the  whole  amount  remaining  in  his  hands. 

28  Fifth,  Upon  the  appointment  and  qualification  in  any  case  of  an 

29  executor  or  administrator  as  his  successor,  to  surrender  into  the  probate 

30  court  his  letters  of  administration  in  such  case  with  an  account  on  oath 

31  of  his  doings  therein  and,  upon  a  just  settlement  of  such  account,  to  pay 

32  over  and  deliver  to  such  successor  all  money  remaining  in  his  hands, 

33  and  all  property,  effects  and  credits  of  the  deceased  not  then  administered. 

34  Periods  of  time  which  by  law  run  in  other  cases  from  the  time  of  giving  Limitation 

35  bond  by  an  administrator  shall,  when  such  general  bond  is  given,  run  generaftTond 

36  as  to  each  estate  from  the  date  of  the  letters  of  administration.  "^  ^'^'°' 

1  Section  3.     A  public  administrator  who  gives  a  general  bond  shall,  Annual 

fliC counts  to  DG 

2  at  the  probate  court  first  held  in  his  county  after  January  first  in  each  rendered  if 

3  year,  render  an  account  on  oath  of  all  balances  of  estates  then  remaining  is  given. 

4  in  his  hands;  and  the  court  may  at  any  time  require  additional  sureties  cl^s!  9l^'§  s^' 

5  to  be  furnished  upon  such  bond  or  may  require  a  new  bond.  a  l_  ils;  1 1; 

1  Section  4.      A    public    administrator    shall,  except    as    hereinafter  Duties. 

2  provided,  take  out  letters  of  administration  and  faithfully  administer  if^l.'  64!'§  4. 

3  upon  the  estates  of  persons  who  die  intestate  within  his  county  or  else-  If^l'.'a*^" 

4  where,  leaving  property  in  his  county  to  be  administered,  if  there  is  no  Jg^Jj'  f°-^ 

5  known  husband,  widow  or  heir  of  such  deceased  living  in  the  common-  §§  1 3.   ' 

6  wealth  at  the  time  of  filing  the  petition.    The  state  treasurer  shall  be  §§  2,'  10' 

7  made  a  party  to  a  petition  for  administration  by  a  public  administrator,  §§  2, 10. " 
S  and  shall  be  given  due  notice  of  all  subsequent  proceedings.    He  shall,  ex-  §§  2^10.^*' 

9  cept  as  otherwise  provided  in  this  chapter,  administer  estates  and  render  mllHi^isld. 
10  accounts  in  the  same  manner  as  other  administrators.  ig'ol' 

128  Mass.  578.  182  Mass.  205.  191  Mass.  276.  223  U.  S.  317. 

1  Section  5.     Administration  shall   not  be  granted  to  a  public  ad-  admmistrators 

2  ministrator  when  the  husband,  widow  or  an  heir  of  the  deceased,  in  ^°^  *V' 

when  iiGir 

3  writing,  claims  the  right  of  administration  or  requests  the  appoint-  etc.,  claim's 

4  ment  of  some  other  suitable  person  to  the  trust,  if  such  husband,  widow,  i853, 419. 

5  heir  or  other  person  accepts  the  trust  and  gi\-es  the  bond  required.  p.'  s.'  isi,'  §  3. 

R.  L.  138,  §  3. 


2156  PUBLIC   ADMINISTRATORS.  [ClL^P.    194. 

i^T?tairci°s?3.      Section  6.     If  after  citation  has  been  issued  by  the  probate  court  1 

1909, 114,  §  1.    to  a  public  administrator  upon  the  estate  of  a  deceased  person,  admin-  2 

istration  shall  not  be  granted  to  him  for  the  reason  set  forth  in  the  pre-  3 

ceding  section,  or  because  of  the  finding  of  a  will  of  the  deceased,  the  4 

judge,  if  satisfied  that  the  person  taking  out  said  citation  has  acted  in  5 

good  faith  and  for  the  best  interests  of  the  estate,  may  allow  him  just  6 

and  reasonable  compensation  for  his  services,  and  reimbursement  for  ex-  7 

peases  actually  incurred,  out  of  the  assets  of  said  estate.  8 

feale  whm  Section  7.     If,  after  the  granting  of  letters  of  administration  to  a  1 

OThwr'damii     pubHc  administrator  and  before  the  final  settlement  of  the  estate,  the  2 

i8i7'"i9o''§T4  h'^'sband,  widow  or  an  heir  of  the  deceased,  in  writing,  claims  the  right  3 

R  s.'  64.  §  16.    of  administration  or  requests  the  appointment  of  some  other  suitable  4 

G. s.'95.  §H. 5.  person  to  the  trust,  or  if  a  will  of  the  deceased  is  thereafter  proved  and  5 

R.  L.  138,  §  4^    allowed,  the  probate  court  shall  grant  letters  of  administration  or  letters  6 

i4SMass.  594.  testamentary;  and  when  the  person  to  whom  such  letters  are  so  granted  7 

gives  the  bond  required  by  law  the  powers  of  the  public  administrator  8 

over  the  estate  shall  cease.  9 

M°dlafh?ltc.,        Section  8.     Upon  the  death,   resignation  or  removal   of  a  public     1 

administrator     administrator,  the  probate  court  shall  issue  a  warrant  to  some  other    2 

^S49,  m.  §  1.    public  administrator  in  the  same  county,  upon  his  application  there-    3 

R  i'  'Is'  I  'e'       '  ^^1"'^i"g  ^™  to  examine  the  accounts  of    such    public    adminis-    4 

■  trator  relative  to  the  estates  on  which  he  has  taken  out  letters  of  ad-    5 

ministration,  and  to  return  to  the  probate  court  a  statement  of  all  of    6 

such  estates  as  are  not  fully  administered  and  of  the  balance  of  each    7 

estate  remaining  in  the  hands  of  such  public  administrator  at  the  time    8 

of  his  death,  resignation  or  removal.     And  thereupon  the  court  shall    9 

issue  to  the  public  administrator  making  the  return,  upon  his  giving  the  10 

requisite  bond,  letters  of  administration  upon  such  of  said  estates  as  are  11 

not  already  administered,  although  the  personal  property  remaining  may  12 

not  amount  to  twenty  dollars.  13 

to°™d°"^  "^         Section  9.     Public  administrators  may  be  authorized  to  take  charge  1 

§ri*'3^4"         °^  *'^^  ^^^^  property  of  the  deceased  or  of  any  part  thereof  situated  any-    2 

il*!'  123.         where  within  the  commonwealth,  to  lease  the  same,  to  collect  the  rents,  3 

G.  s'.  95,           and  to  make  such  repairs,  and  do  all  other  things  which  may  be  con-  4 

isso,'i53.         sidered  necessary  for  the  preservation  of  such  real  property  and  as  a  5 

§§  lb,  n'.          charge  thereon.     They  may  also  be  licensed  by  the  probate  court  to  6 

f§  io,\''f.'         sell  the  real  property  for  the  same  purposes  and  in  the  same  manner  7 

i9o|  12°;  §  1     ^s  other  administrators.    All  laws  relative  to  sales  of  land  by  adminis-  8 

trators  and  the  disposition  of  the  proceeds  shall  govern  such  sales  so  far  9 

as  applicable,  except  as  otherwise  provided  in  this  chapter;  provided,  10 

that  the  time  limit  imposed  on  sales  by  other  administrators  shall  not  11 

apply  to  sales  by  public  administrators,  but  shall  be  in  the  discretion  12 

of  the  court.    The  net  proceeds  of  any  sale  after  deducting  the  expenses  13 

thereof  and  other  administration  expenses,  and  such  amount  as  may  be  14 

required  for  the  payment  of  debts  in  consequence  of  a  deficiency  in  the  15 

personal  property,  shall,  after  one  year  from  the  time  of  the  filing  of  the  16 

administrator's  bond,  or  in  case  he  has  filed  a  general  bond,  after  one  17 

year  from  the  date  of  his  appointment,  except  as  provided  in  the  follow-  18 

ing  section,  be  distributed  to  the  persons  who  would  have  been  entitled  19 

to  said  real  property  in  the  proportions  to  which  they  would  have  been  20 

entitled  had  it  not  been  sold.  21 


Chap.  194.]  public  administrators.  2157 

1  Section  10.     TOien   an    estate   has   been   fully   administered   by   a  Public 

2  public  administrator,  or  by  the  executor  or  administrator  with  the  will  etc°!'to^deposrt 

3  annexed  of  a  person  who  died  leaving  no  known  heirs,  he  shall  deposit  any  theTrelsurer! 

4  balance  in  his  hands  with  the  state  treasurer,  who  shall  hold  it  for  the  8|^f''4^^' 

5  benefit  of  those  who  may  have  lawful  claims  thereon.    The  probate  coiu't  g.  s.  95  §  12 

6  may,  within  six  years  thereafter,  upon  the  application  of  such  executor  R-  l  iss,  §  12! 

7  or  administrator,  if  it  appears  that  there  are  reasonable  grounds  to  be-  i9i9!208.  «2. 

8  lieve  that  certain  persons  ha^•e  lawful  claims  upon  the  said  balance,  enter        ^°' 

9  a  decree  directing  that  it  be  repaid  to  him;  and  the  treasurer  shall  there- 
in upon  pay  over  to  him  all  money  deposited  in  the  treasury  to  the  credit 

1 1  of  the  estate  to  be  administered  by  him  as  a  part  of  the  estate  of  the 

12  deceased. 

1  Section  11.     The  probate  court  in  each  county  shall  require  every  Annual 

2  public  administrator  in  such  county  to  render  an  account  of  his  pro-  i839™42, 

3  ceedings  under  any  letters  of  administration  at  least  once  a  year  until  g.  s.  Is.  §  13. 

4  the  trust  is  fulfilled.    When,  on  final  settlement  of  an  estate,  it  appears  ^  |  \fg^  |  \f 

5  that  money  remains  in  the  hands  of  such  administrator  which  by  law 
G  should  have  been  deposited  with  the  state  treasurer,  the  court  shall 

7  certify  that  fact  and  a  statement  of  the  amount  so  witlilield  to  said 

8  treasurer,  who,  imless  such  deposit  is  made  within  one  month  after 

9  the  receipt  of  such  notice,  shall  cause  the  bond  of  the  administrator  to 
10  be  prosecuted  for  the  recovery  of  such  money. 

1  Section  12.     A  public  administrator  shall,  upon  the  appointment  Surrender  of 

2  and  qualification  of  an  executor  or  administrator  as  his  successor,  sur-  appointment 

3  render  into  the  probate  court  his  letters  of  administration  in  such  case  isi?.  i9o.°§  u. 

4  with  an  account  on  oath  of  his  doings  therein,  and,  upon  a  just  set-  ^3!;  142,^ §'2! 

5  tlement  of  such  account,  shall  pay  over  and  deliver  to  his  successor  all  p;  |;  ^fi.^i^s. 
(J  money  remaining  in  his  hands,  and  all  property,  effects  and  credits  of  ^-  ^-  '^*'  ^  *■ 
7  the  deceased  not  then  administered. 

1  Section  13.     Public  administrators  shall  complete,  as  soon  as  they  Completion  of 

2  lawfully  may,  the  administration  of  estates  in  their  hands  of  which  the  tion.""^  '^'^ 

3  administration  is  not  complete  at  the  date  of  the  expiration  of  their  62if'§  l       ' 

4  terms.  1913. 246,  §  1.  1917, 12,  §  1. 

1  Section  14.     If,  within  six  years  after  a  public  administrator,  or  an  Heirs,  etc., 

2  executor  or  an  aflministrator  with  the  will  annexed  of  a  person  who  has  ^"ministration 

3  died  leaving  no  known  heirs,  has  deposited  with  the  state  treasurer  the  state  trTa°sury.° 

4  balance  of  an  estate,  any  person  petitions  the  probate  court  which  granted  J^-*!'  9"'5\4" 

5  letters  of  administration  or  letters  testamentary  on  such  estate,  and  shows  ?■  |-  i|i'  |  J^- 
G  that  he  is  legally  entitled  by  the  will  of  the  deceased  or  otherwise  to  the  i9i7. 90,  §  2. 

....  .  ...  1919   20s   §  3 

7  administration  thereof,  the  court  shall  grant  administration  thereof,  or, 

8  upon  probate  of  such  will,  shall  grant  letters  testamentary  or  of  adminis- 

9  trationwith  the  will  annexed  to  such  petitioner  or  at  his  request  to  some 

10  other  suitable  person;   but  before  granting  such  letters  the  court  shall 

1 1  order  personal  notice  of  the  petition  to  be  served,  at  least  fourteen  days 

1 2  before  the  hearing,  upon  a  public  administrator  of  the  county,  who  shall 

13  appear  in  behalf  of  the  commonwealth.     In  all  such  cases  the  public 

14  administrator  shall  receive  a  reasonable  allowance  for  his  services  and 
]  .5  expenses,  to  be  determined  by  the  probate  court  and  paiti  by  the  state 
1 1  i  treasurer  out  of  the  money  deposited  to  the  credit  of  such  estate,  but  not 
17  otherwise. 


2158 


PUBLIC  ADMINISTRATORS. 


[Chap.  194. 


Treasurer  to 
pay  over  to 
executor,  etc. 
1839.  142,  I  6. 
G.  S.  95.  §  15. 
P.  S.  131,  §  15. 
R.  L.  138.  §  15. 
1917.  90,  §  3. 
1919,  17. 


Section  15.     After  the  expiration  of  twenty  days  from  the  appoint-  1 

ment  of  an  executor  or  administrator  under  the  preceding  section,  if  no  2 

appeal  is  claimed  by  any  person  interested,  the  state  treasurer,  after  pay-  3 

ing  such  sums,  if  any,  for  services  and  expenses  as  may  be  allowed  under  4 

the  preceding  section,  shall  pay  over  to  such  executor  or  administrator  5 

all  money  deposited  to  the  credit  of  such  estate,  to  be  administered  in  6 

like  manner  as  the  estates  of  other  deceased  persons.  7 


G.  S.  95.  §  17 
1874,  105. 
P.  S.  131, 
R.  L.  138 


?tto™eysto          Section  16.     If  a  public  administrator  neglects  to  return  an  inven-  1 

rasTof'negiect    ^^ry,  Settle  an  account  or  perform  any  other  duty  incumbent  on  him  in  2 

1846.  211.         relation  to  an  estate,  and  there  appears  to  be  no  heir  entitled  thereto,  the  3 

district  attornev  for  the  district  where  the  administrator  received  his  4 

17  .     ' 

n'.  letters  shall,  in  behalf  of  the  commonwealth,  prosecute  all  suits  and  do  5 

all  acts  necessary  to  insure  a  prompt  and  faithfid  administration  of  the  6 

estate  and  the  payment  of  the  proceeds  thereof  into  the  state  treasury;  7 

and  if  no  heir  has,  within  two  years  after  the  granting  of  letters  of  ad-  8 

ministration,  appeared  and  made  claim  in  the  probate  court  for  his  inter-  9 

est  in  such  estate,  it  shall  be  presumed  that  there  is  no  such  heir  and  the  10 

burden  of  proving  his  existence  shall  be  upon  the  public  administrator.  11 


Disposition  of 
estates  of  less 
than  one  hun- 
dred dollars. 
1874.  254,  §  1. 
P.  S.  131,  §  18. 
1883,  264. 
R.  L.  138.  §  18. 
1919,208.  §  4. 
1  Op.  A.  G.  536. 
3  0p.  A.  G.  132. 


Section  17.  If  the  total  value  of  an  estate  which  has  come  into  the  1 
control  of  a  public  administrator  is  less  than  one  hundred  dollars,  unless  2 
the  same  is  the  balance  of  an  estate  recei\'ed  from  a  prior  public  admin-  3 
istrator,  he  shall  forthwith  reduce  all  such  property  into  money,  not  4 
taking  administration  thereon,  and  deposit  it,  after  deducting  his  reason-  5 
able  expenses  and  charges,  with  the  state  treasurer,  who  shall  hold  it  6 
for  the  benefit  of  any  persons  who  may  have  legal  claims  thereon.  Such  7 
claims  may  be  presented  to  the  state  auditor  within  one  year  from  such  8 
payment  to  the  treasurer,  and  the  auditor  shall  examine  such  claims  and  9 
allow  such  as  may  be  proved  to  his  satisfaction,  and  upon  the  expiration  10 
of  the  year  shall  forthwith  certify  the  same  to  the  governor  and  council  11 
for  payment  of  the  whole  of  the  claims  or  such  proportion  thereof  as  the  12 
funds  will  allow.  '  13 


^statraof fes3         Section  18.     A  public   administrator,    upon   making   such   deposit,     1 
than  one  hun-    shall  file  with  the  state  treasurer  an  itemized  account,  on  oath,  of  all  his    2 

dred  dollars.  ,       ,.  .  ,       ,  p      i  o 

1874, 254, 1 2.    dealings,  receipts,  pajTnents  and  charges  on  account  or  the  property  3 

R.  L.  i3s',  §  19]  from  which  the  money  so  deposited  proceeds,  including  the  name  of  the  4 

intestate,  if  known  to  him,  and  the  state  treasurer  shall  thereupon  deliver  5 

to  him  a  receipt  for  such  money.    Such  deposit  shall  exempt  the  public  6 

administrator  from  all  responsibility  for  or  on  account  of  the  money  so  7 

deposited.  8 

references. 

As  to  duty  of  medical  examiner  to  take  charge  of  property  found  with  body  of 
decea.sed,  see  Chap.  3S,  §  18. 

As  to  the  appointment  of  a  pubHc  administrator  as  administrator  witli  will 
annexed  or  de  bonis  non,  see  Chap.  193,  §§  7,  9. 


Ch.\P.    195.]      EXECUTORS  AJSTD  ADMINISTRATORS,   GENERAL  PROVISIONS. 


2159 


CHAPTER     195. 

GENERAL  PROVISIONS   RELATIVE   TO   EXECUTORS  AND 
ADMINISTRATORS. 


Sect. 

1.  Notice  of  appointment. 

2.  Perpetuation  of  evidence  of  notice. 

3.  Notice  may  be  given  after  proper  time, 

when. 

4.  Liability  for  omission  to  give  notice. 

5.  Inventories. 

6.  Appraisers. 

7.  May    be    authorized    to    conduct    the 

business  of  the  deceased. 

8.  Agent  of  non-resident  executor  or  ad- 

ministrator. 


Sect. 
9.  New  appointment  of  agent. 

10.  Failure  to  appoint  agent. 

11.  Removal  of  executor  or  administrator. 

12.  Acts  of  executor  or  administrator  be- 

fore removal  to  be  valid. 

13.  Resignation    of    executor    or    adminis- 

trator. 

14.  Executors  in  their  own  wrong. 

15.  Liability  of  such  executors. 


1  Section  1.     An  executor  or  administrator  shall,  within  three  months  Notice  of 

2  after  giving  bond  for  the  performance  of  his  trust,  cause  notice  of  his  iTss.'eeTri.' 

3  appointment  to  be  posted  in  two  or  more  pubHc  places  in  the  town  where  f^^' '''''  ^^  ^' 

4  the  deceased  last  dwelt;  or  he  may  be  required  by  the  probate  court  to  j'g  ^-  ^'^  ^^  ^' 

5  give  notice  by  publication  in  a  newspaper,  or  in  such  other  manner  as  p  |-  i^^j,  §  i^ 

6  the  court  orders.  97  Mass.  401.  ISO  Mass.  27. 

185  Mass.  455.  211  Mass.  282.  219  Mass.  40. 

1  Section  2.     An  affidavit  of  the  e.xecutor  or  administrator,  or  of  a  Perpetuation 

2  person  in  his  behalf,  filed  and   recorded  with  a  copy  of  the  notice  in  norice^^""*  °^ 

3  the  registry  of  probate,  or  such  affidavit  made  by  any  person  and  so  }s|q'  1%^  ^■ 

4  filed  and  recorded  with  such  copy  by  permission  of  the  court  upon  f^^^  ^|,§  ^■ 

5  satisfactory  evidence  that  the  notice  was  given  as  ordered,  shall  be  g.^s.'q?,  §  2. 

6  admitted  as  evidence  of  the  time,  place  and  manner  in  which  the  notice  p.  s.' 132,  §2. 

7  was  given.  isss,  us,  §  i;  sso.  n.  l.  139,  §  2. 


13  Gray,  336. 


16  Gray.  363. 


104  Mass.  277. 


1  Section  3.     If  by  accident  or  mistake  the  notice  is  not  given,  or  if  ^?en  afTeT  ^^ 

2  the  evidence  that  it  was  given  is  not  perpetuated  as  provided  in  the  '^{^^"  *''"^' 

3  preceding  section,  the  probate  court  may,  upon  petition  of  the  executor  R.  s.  66.  §25. 

4  or  administrator,  order  such  notice  to  be  given  at  any  time  thereafter,  p.  8.132,53. 

5  In  such  case  the  periods  of  time  limited  for  the  commencement  of  actions  g  Aiiei^494.  ' 

6  against  executors  and  administrators  and  for  other  purposes,  which  run 

7  from  the  time  of  their  giving  bond,  shall  run  from  the  date  of  such  order. 

1  Section  4.     An  order  under  the  preceding  section  shall  not  exempt  Liability  for 

2  an  executor  or  administrator  or  his  sureties  from   any  liabilitv  for  e-ve  notice. 

3  damages  which  may  be  incurred  by  reason  of  the  omission  to  give  notice  o!  s!  97!  §  4. ' 


4  within  the  three  months. 


p.  S.  132,  §  4. 


R.  L.  139,  §  4. 


6  Allen,  498. 


1  Section  5.     Every  executor,  except  one  who  gives  bond  under  sec-  inventories. 

2  tion  three  of  chapter  two  hundred  and  five,  and  every  administrator  \ni^b!i6,n- 

3  shall,  within  three  months  after  his  appointment,  make  on  oath  and  i^^s.'el,"^  i.^*' 

4  return  to  the  probate  court  a  true  inventory  of  the  real  and  personal  p|'f|2  §5 

5  property  of  the  deceased  which  at  the  time  of  making  such  inventory  i^.^-  ^-^'^  ^• 

6  has  come  to  his  possession  or  knowledge. 

152  Mass.  412.  170  Mass.  506.  181  Mass.  320. 


2160 


EXECUTORS  AND   ADMINISTRATORS,   GENERAL  PROVISIONS.      [ChaP.    195. 


Appraisers. 

1719-20, 

10.  §  1. 

1783,  32,  §  14. 

1817,  190,  §  14. 

R.  S.  65,  §  2. 

G.  S.  96,  §  2. 


May  be 
authorized  to 
conduct  the 
business  of  the 
deceased. 
1910.  411. 
226  Mass.  214. 
229  Mass.  109. 

Agent  of 

non-resident 

executor  or 

administrator. 

1S79,  180,  §§  1, 

2,6. 

P.  S.  132,  §§  8, 

9,  13. 

1S93, lis. 

1901,37. 

R.  L.  139,  §  8. 

193  Mass.  38. 

209  Mass.  4.5('i. 

219  Mass.  40. 

235  Mass.  171. 


Section  6.  The  property  comprised  in  the  inventory  shall  be  ap- 
praised by  one  or  three  suitable  disinterested  persons,  as  may  be  deemed 
advisable,  to  be  appointed  by  the  court  or  by  the  register.  They  shall 
be  sworn  to  the  faithful  performance  of  their  duties.  p.  s.  132,  §  6. 


R.  L.  139,  §  6;  162, 
§  46;  164,  §  14. 


1915,  26. 

1918,  257,  §  390. 


1919,  5. 

1920,  2. 


Section  7.     The  probate  court,   upon   such  notice  as  it  considers  1 

reasonable,   may  authorize    an    executor  or  administrator  to  continue  2 

the  business  of  the  deceased  for  the  benefit  of  the  estate  for  a  period  3 

not  exceeding  one  year  from  the  date  of  his  appointment.  4 


Section  8.  An  executor  or  administrator  who  is  appointed  in,  but  1 
resides  out  of,  the  commonwealth  shall  not  enter  upon  tlie  duties  of  his  2 
trust  nor  be  entitled  to  receive  his  letter  of  appointment  until  he  shall,  3 
by  a  writing  filed  in  the  registry  of  probate  for  the  county  where  he  4 
is  appointed,  have  appointed  an  agent  residing  in  the  commonwealth,  5 
and,  by  such  writing,  shall  have  agreed  that  the  service  of  any  legal  process  6 
against  him  as  such  executor  or  administrator,  or  tliat  the  service  of  7 
any  such  process  against  him  in  his  individual  capacity  in  any  action  8 
founded  upon  or  arising  out  of  any  of  his  acts  or  omissions  as  such  ex-  9 
ecutor  or  administrator,  shall,  if  made  on  said  agent,  have  like  effect  as  10 
if  made  on  him  personally  within  the  commonwealth,  and  such  service  11 
shall  have  such  effect.  Said  writing  and  also  the  notice  of  appointment  12 
of  such  executor  or  administrator  shall  state  the  name  and  address  of  13 
the  agent.  An  executor  or  administrator  who,  after  his  appointment,  14 
removes  from,  and  resides  without,  the  commonwealth  shall  so  appoint  15 
a  like  agent.  16 

Section  9.     If  an  agent  appointed  under  the  preceding  section  dies  1 

or  removes  from  the  commonwealth  before  the  final  settlement  of  the  2 

accounts  of  his  principal,  another  appointment  shall  be  made  and  filed  3 

as  above  provided,  and  the  powers  of  an  agent  appointed  under  this  4 

or  the  preceding  section  shall  not  be  revoked  prior  to  the  final  settle-  5 

ment  of  the  estate  unless  another  appointment  shall  be  made  as  before  6 

provided.  7 

fpp^S  a°gent.        SECTION  10.     Failure  by  an  executor  or  administrator  to  comply  with     1 
p*s^'i'3*2'M^>    any  provision  of  the  two  preceding  sections  shall  be  cause  for  removal.        2 

R.  L.  139,  §  10. 


New  appoint- 
ment of  agent. 
1879,  ISO, 
§§3,4. 

P.  S.  132,  §§  10, 
11. 
R.  L.  139,  §  9. 


Removal  ot 
executor  or 
administrator. 
1783,  24,  §  19. 
1808,98,  §  1. 
R.  S.  63,  §  7; 
64,  §  15. 
G.  .S.  101,  §  2. 
P.  S.  132.  §  14. 
R.  L.  139,  §  11. 
12  Mass.  198. 
11  Met.  104. 
1  Allen,  354. 
10  Allen,  124. 
137  Mass.  547. 
148  Mass.  594. 
188  Mass.  201. 


Section  11.     If   an   executor   or   administrator  becomes   insane   or  1 

otherwise  incapable  of  performing  the  trust,  or  is  unsuitable  therefor,  or  2 

if  an  executor  or  administrator  who  resides  out  of  the  commonwealth,  3 

having  been  duly  cited  by  the  probate  court,  neglects  to  render  his  4 

accounts  and  to  settle  the  estate,  the  probate  court  may  remove  him;  5 

and  thereupon  the  other  executor  or  administrator,  if  any,  may  pro-  6 

ceed  in  performing  the  trust  as  if  the  one  removed  M-ere  dead  or,  if  there  7 

is  no  other  executor  or  administrator,  the  court  may  appoint  an  ad-  8 

ministrator  as  provided  in  section  nine  of  chapter  one  hundred  and  9 

ninety-three.  10 


Mecutoror  Section  12.     If  Eu  cxccutor  or  administrator  is  removed  or  if  letters     1 

befSre'removai   °^  administration  are  re^'oked,  all  previous  sales,  whether  of  real  or     2 
to  be  valid.       persoiial  property,   made   lawfully   by   the  executor  or  administrator     3 


Chap.  196.] 


ALLOWANCES  AND   ADVANCEMENTS. 


2161 


4  and  with  good  faith  on  the  part  of  the  purchaser,  and  all  other  lawfid  ^  |  l°i'  |  f^ 

5  acts  done  by  such  executor  or  administrator,  shall  remain  valid  and  R-  l.  i39,  §  12, 

6  effectual. 


1  Section  13.     An  executor  or  administrator  may  resign  his  trust  when  Resignation  of 

2  it  appears  to  the  probate  coxu-t  proper  to  allow  him  so  to  do.  administrator. 


1S43,  97. 

G.  S.  101,  §  5. 


P.  S.  132.  §  16. 
R.  L.  139,  §  13. 


12  Mass.  358. 


1  Section  14.     Whoever  injuriously  intermeddles  with  any  personal  fhdr"own  '° 

2  property  of  a  deceased  person,  without  being  thereto  authorized  by  law,  YigE-s  u  §  3 

3  shall  be  liable  as  an  executor  in  his  own  wrong  to  the  persons  aggrieved.  i7S3, 24,  §'i6. 


R.  S.  64.  §  11. 
G.  S.  94,  §  14. 


p.  S.  132.  §  17. 
R.  L.  139,  §  14. 


108  Mass.  379. 
114  Mass.  420. 


Section  15.     An  executor  in  his  own  wrong  shall  be  liable  to  the  Liability  of 
rightful  executor  or  administrator  for  the  full  value  of  the  personal  r.^s.m^TiT' 
property  of  the  deceased  taken  by  him  and  for  all  damages  caused  to  p.' I.  illVfs. 
the  estate  by  his  acts;   and  he  shall  not  be  allowed  to  retain  or  deduct  gj  Malsl'lls'*' 
any  part  of  such  estate,  except  for  funeral  expenses  or  debts  of  the  de-  1°^  m^^^-  ^''^■ 

6  ceased  or  other  charges  actually  paid  by  him  and  which  the  rightful 

7  executor  or  administrator  might  have  been  compelled  to  pay. 


REFERENCES. 

Authority  of  special  administrator  to  conduct  business  of  deceased,  Chap.  193,  §  12. 
Business  of  deceased  pharmacist,  Chap.  112,  §  36. 
Giving  bond,  Chap.  20.5. 

§  5.     Filing  inventories  with  commissioner  of  corporations  and  taxation.  Chap. 
65,  §  22. 
Duty  of  public  administrator  to  return  inventory,  Chap.  194,  §  2. 
§  6.     Power  of  court  to  revoke  warrant  of  appraisal  and  to  issue  new,  Chap.  215, 
§35. 
Compensation  of  appraisers.  Chap.  215,  §  39;  262,  §  31. 
§§  10,  11.     Removal  of  executor  or  administrator  of  insolvent  estate.  Chap.  198, 
§27. 


CHAPTER     196 


ALLOWANCES   TO   WIDOWS   AND   CHILDREN,   AND   ADVANCEMENTS. 


Sect. 

allowances  to  widows  and   children. 

1.  Apparel     of     widow     and     children. 

Quarantine. 

2.  Allowance  of  necessaries. 

ADVANCEMENTS. 

3.  Advancements    treated    as    estate    of 

intestate,  when. 


Sect. 

4.  Same  subject. 

5.  Proof  of  advancement. 

6.  Value    of    advancement,    how    ascer- 

tained. 

7.  Death  of  person  receiving  advancement 

before  intestate. 
S.  Determination    of    questions    of    ad- 
vancements. 


allowances  to   widows   AND   CHILDREN. 

1  Section  1.     Articles  of  apparel  and  ornaments  of  the  widow  and  ^i'(fo''^''i°d 

2  minor  children  of  a  deceased  person  shall  belong  to  them  respectively,  children. 

3  The  widow  may  remain  in  the  house  of  her  husband  for  not  more  than  I'ss,  36.  §  3. 

4  six  months  next  succeeding  his  death  without  being  chargeable  for  rent,  isosl  00,  §  2. 


1816.  95,  §  1. 

R.  S.  60.  §  16;  05,  §  4. 

1838,  145,  §  1. 


G.  S.  90,  §  IS;  96,  §  4. 
P.  S.  124,  §3;  135,  §  1. 
1899,479,  §§  2,5. 


1900,  4.50.  5  1. 
R.  L.  140,  I  1. 
119  Mass.  596. 


2162 


ALLOWANCES  AND   ADVANCEMENTS. 


[Ch.\p.  196. 


Allowance  of 
necessaries. 
1710-11,  2.  §  2. 
1783,  36,  §  3. 
1802,  93. 
180.5.  90,  §  2. 
1816,95. 
1833,  40. 
R.  S.  60,  §  16; 
65.  §§  4-6. 
1838,  145,  §  2. 
1842,  15. 
G.  S.  96.  §  5. 
P.  S.  135.  §  2. 

1899,  479,  §  6. 

1900.  450,  §  2. 
R.  L.  140,  §  2. 

1914,  699. 

1915,  61. 

3  Pick.  375. 

10  Pick.  374, 

429. 

10  Met.  170. 

6  Cush.  20. 

1  Gray,  518. 


Section  2.     Such  parts  of  the  personal  property  of  a  deceased  person  1 

as  the  probate  court,  having  regard  to  all  the  circumstances  of  the  case,  2 

may  allow  as  necessaries  to  his  widow  for  herself  and  for  his  family  3 

under  her  care  or,  if  there  is  no  widow,  to  his  minor  children,  not  exceed-  4 

ing  one  hundred  dollars  to  any  child,  and  also  such  provisions  and  other  5 

articles  as  are  necessary  for  the  reasonable  sustenance  of  his  family,  and  6 

the  use  of  his  house  and  of  the  furniture  therein  for  six  months  next  7 

succeeding  his  death,  shall  not  be  taken  as  assets  for  the  payment  of  8 

debts,  legacies  or  charges  of  administration.    After  exhausting  the  personal  9 

property,  real  property  may  be  sold  to  provide  the  amount  of  allowance  10 

decreed,  in  the  same  manner  as  it  is  sold  for  the  payment  of  debts,  if  a  1 1 

decree  authorizing  such  sale  is  made,  upon  the  petition  of  any  party  in  12 

interest,  within  one  year  after  the  approval  of  the  bond  of  the  executor  13 

or  administrator.  14 


3  Gray,  521. 

5  Gray,  24. 

2  Allen,  310. 

13  Allen,  120,  207. 


110  Mass.  461. 
117  Mass.  27. 
123  Mass.  443. 
127  Mass.  111. 


130  Mass.  376. 
139  Mass.  144. 
155  Mass.  141,  153. 
168  Mass.  228. 


181  Mass.  37. 
192  Mass.  555. 
215  Mass.  576. 
226  Mass.  459. 


Advancements 
treated  as 
estate  of  in- 
testate, when. 
1692-3,  14,  §  1. 
1805,  90,  §  3. 
R.  S.  01,  §§6,7; 
64,  §  2. 
G.  S.  91,  §  6; 
94,  §  17. 
P.  S.  128, 
§§1,6. 

R.  L.  140,  §  4. 
1  Pick.  157. 


ADVANCEMENTS. 

Section  3.     Property,  real  or  personal,  which  is  given  by  an  intestate  1 

in  his  lifetime  as  an  advancement  to  a  child  or  other  lineal  descendant  2 

shall  be  considered  as  part  of  the  intestate's  estate  in  the  division  and  3 

distribution  of  such  estate  among  his  issue,  and  shall  be  taken  by  such  4 

child  or  other  descendant  toward  his  share  of  such  estate;   but  he  shall  5 

not  be  required  to  restore  any  part  thereof,  although  it  exceeds  his  share.  6 

The  widow  shall  be  entitled  only  to  her  share  in  the  residue  after  deduct-  7 

ing  the  value  of  the  advancement.  8 


Same  subject. 
R.  S.  61,  §  8. 
G.  S.  91,  §  7. 
P.  S.  128.  §  2. 
R.  L.  140,  §  5. 
16  Mass.  200. 


Section  4.    If  such  advancement  is  made  in  real  property,  the  value  1 

thereof  shall  be  considered  as  part  of  the  real  property  to  be  divided;  2 

if  it  is  in  personal  property,  it  shall  be  considered  as  part  of  the  personal  3 

property;   and  if  in  either  case  it  exceeds  the  share  of  real  or  personal  4 

property,  respectively,  which  would  have  come  to  the  heir  so  advanced,  5 

he  shall  not  restore  any  part  of  it,  but  shall  receive  so  much  less  out  of  6 

the  other  part  of  the  estate  as  will  make  his  whole  share  equal  to  the  7 

shares  of  the  other  heirs  who  are  in  the  same  degree  with  him.  8 


Proof  of  ad- 
vancement. 
1783.  36,  §  7. 
1805,  90,  §  3. 
R.  S.  61,  I  9. 
G.  S.  91,  §  8. 
P.  S.  128,  §  3. 


Section  5.     Gifts  and  grants  shall  be  held  to  have  been  made  as  1 

advancements,  if  they  are  expressed  in  the  gift  or  grant  to  be  so  made,  2 

or  if  charged  in  writing  as  such  by  the  intestate,  or  acknowledged  in  3 

writing  as  such  by  the  party  receiving  them.  r.  l.  i40,  §  6.  4 


1  Mass.  527. 

4  Pick.  21. 

10  Mass.  437. 

5  Pick.  527. 

2  Pick.  337. 

14  Pick.  318. 

22  Pick.  508. 
1  Gray,  587. 
10  Gray.  104. 


13  AUen,  334. 
103  Mass.  164. 
120  Mass.  552. 


Value  of  ad- 
vancement, 
how  ascer- 
tained. 
1805,  90,  §  3. 
R.  S.  61,  §  10. 
G.S.  91,  §  9. 
P.  S.  128,  §  4. 
R.  L.  140,  §  7. 


Section  6.     If  the  value  of  an  advancement  is  expressed  in  the  con-  1 

veyance,  in  the  charge  thereof  made  by  the  intestate  or  in  the  acknowl-  2 

edgment  by  the  person  receiving  it,  such  value  shall  be  adopted  in  the  3 

division  and  distribution  of  the  estate;  otherwise  it  shall  be  determined  4 

according  to  the  value  when  the  property  was  given.  i7  Mass.  sse.  5 


Death  of 
person  receiv- 
ing advance- 
ment before 
intestate. 


Section  7.  If  a  child  or  other  lineal  descendant  who  has  received  1 
an  advancement  dies  before  the  intestate,  leaving  issue,  the  advance-  2 
ment  shall  be  considered  as  part  of  the  intestate's  estate  in  the  division    3 


Chap.  197.] 


P.\YMENT  OF  DEBTS,   LEGACIES,   ETC. 


2163 


4  and  distribution  of  such  estate,  and  the  value  thereof  shall  be  taken  by  R.  s.  ei,  §  n. 

5  the  representative  of  the  heir  to  whom  the  advancement  was  made  p.' s.' 128,  §5.' 

6  toward  his  share  of  the  estate,  as  if  the  advancement  had  been  made        '  ^*°'    *' 

7  directly  to  him. 


1  Section  8.    The  probate  court  in  which  the  estate  of  a  deceased  S^queTtkina™ 

2  person  is  settled  mav  hear  and  determine  all  questions  of  advancements  "f  advance- 

3  arising  relative  to  such  estate,  or  such  questions  may  be  heard  and  de-  R-  s.  io3, 

4  termined  upon  a  petition  for  partition;  but  if  such  question  arises  upon  g.  s.  i36,  §  66. 

5  a  petition  for  partition,  the  court  may  suspend  proceedings  until  the  rl.ho.sq. 

6  question  has  been  decided  in  the  probate  court  in  which  the  estate  of  Je  Masl^il?^'' 

7  the  deceased  is  settled.  102  Mass.  355. 


200. 


REFERENCES. 

§  2.     Allowance  from  estate  in  hands  of  special  administrator,  Chap.  193,  §  13. 

Time  within  which  real  estate  of  deceased  shall  be  Uable  for  debts.  Chap.  202, 
§20. 
§  8.     Jurisdiction  generally  of  probate  court  of  petition  for  partition.  Chap.  241,  §  2. 


CHAPTER    197. 


PAYMENT  OF   DEBTS,   LEGACIE.S   AND   DISTRIBUTIVE  SHARES. 


Sect. 


PAYMENT    OF    DEBTS. 


1.  Executor,  etc.,  not  liable  to  action  for 

BIX  months  after  giWng  bond. 

2.  When  debts  may  be  paid. 

3.  When   payment  is   a   defence   against 

further  claims. 

4.  Extent  of  hability  if  residue  is  insuffi- 

cient to  meet  new  claims. 

5.  When  payment  to  preferred  creditors 

bars  actions  by  others. 

6.  Settlement  of  debts  of  deceased   per- 

sons due  to  executors,  etc. 

7.  Same  subject. 

8.  Liability  of  estate  of  deceased  jointly 

liable. 


LIMITATION    OF    ACTIONS    BY    CREDITORS. 

9.  Time  for  bringing  actions  by  creditors. 

10.  Supreme    judicial    court    may    relieve 

after  claim  barred. 

11.  Extension  of  time  for  creditors'  actions 

by  receipt  of  new  assets. 

12.  Extension  of  time  if  action  fails  from 

defect  in  form,  etc. 

13.  Claims  accruing  after  one  year. 

14.  Same  subject. 

15.  Same  subject. 

16.  Same  subject. 

17.  Limitations  of  actions  against  admin- 

istrators de  bonis  non. 

18.  Liability  upon  receipt  of  new  assets. 


Sect. 

payment   of   legacies  and   distributive 

SHARES. 

19.  Actions  to  recover  legacies. 

20.  Rate  of  interest. 

21.  Indemnity  for  payment  of  legacy,  etc., 

if  required  within  one  year. 

22.  Partial  distribution  at  any  time. 

23.  Legacy  to  class. 

24.  How  payment  of   distributive   shares, 

etc.,  may  be  enforced. 

25.  Set-off  of  debts  due  from  legatees,  etc. 

26.  Annuities,  etc.,  payable  from  death  of 

testator. 

27.  Apportionment  of  annuities,  etc. 

LUBILITY    OF    HEIRS,     ETC.,    AFTER    SETTLE- 
MENT   OF    ESTATE. 

28.  Liability  of  heirs,  etc.,  after  settlement 

of  estate. 

29.  Enforcement  of  liability. 

30.  Upon  death  of  heir,  etc.,  his  executor, 

etc.,  to  be  liable. 

31.  Suit  in  equity  if   more   than  one  heir, 

etc.,  is  so  liable. 

32.  Suit  not  to  be  dismissed  for  want  of 

proper  defendants. 

33.  When  one  heir,  etc.,  is  un-ible  to  pay, 

the   others   to    be   liable    for   whole 
amount. 
3d.  If  one  heir,  etc.,  fails  to  pay  his  just 
proportion,  he  shall  be  liable  to  the 
others. 


2164 


PAYMENT    OF   DEBTS. 


[ClL^P.    197. 


Executor,  etc., 
not  liable  to 
action  for  six 
months  after 
giving  bond. 
178S,  66,  §  2. 
R.  S.  66,  §  10. 
G.S.  97,  §  16. 
P.  S.  136,  §  1. 
E.  L.  141,  §  1. 
1914,699,  §  1. 


PAYMENT    OF   DEBT.S. 

Section  1.     An  executor  or  administrator  sliall  not  be  held  to  answer  1 

to  an  action  by  a  creditor  of  the  deceased  commenced  within  six  months  2 

after  his  giving  bond  for  the  performance  of  his  trust,  unless  such  action  3 

is  brought  for  the  recovery  of  a  demand  which  would  not  be  affected  4 

by  the  insolvency  of  the  estate  or,  after  the  estate  has  been  represented  5 

insolvent,  for  the  purpose  of  ascertaining  a  contested  claim.  6 

555. 


116  Mass.  435. 
134  Mass.  155. 
190  Mass.  522. 


192  Mass.  511, 
221  Mass.  587. 


226  Mass.  224. 
235  Mass.  171. 


When  debts 
may  be  paid. 
1823,  144,  §  2. 
R.  S.  66,  §  II. 
G.  S.  97.  §  17. 
P.  S.  130,  §  2. 
R.  L.  141,  §  2. 
1904,  165. 
1914,699,  §  2. 


Section  2.  If  an  executor  or  administrator  who  has  given  due  1 
notice  of  his  appointment  does  not  within  six  months  thereafter  have  2 
notice  of  demands  against  the  estate  of  the  deceased  sufficient  to  war-  3 
rant  him  to  represent  such  estate  to  be  insolvent,  he  may,  after  the  4 
expiration  of  said  six  months,  pay  the  debts  due  from  the  estate  and  5 
shall  not  be  personally  liable  to  any  creditor  in  consequence  of  such  6 
payments  made  before  notice  of  such  creditor's  demand;  and  if  such  7 
executor  or  administrator  is  in  doubt  as  to  the  validity  of  any  debt  8 
which,  if  valid,  he  would  have  a  right  to  pay  under  this  section,  he  9 
may,  with  the  approval  of  the  probate  court,  after  notice  to  all  persons  10 
interested,  pay  such  debt  or  so  much  thereof  as  the  court  may  authorize.  11 


When  payment 
is  a  defence 
against  further 
claims. 

1823,  144,  §  2. 
R.  S.  66,  §  12. 
G.  S.  97.  §  18. 
P.  S.  136,  §  3. 
R.  L.  141.  §  3. 
9  Met.  180. 
227  Mass.  303. 

Extent  of  lia- 
bility if  residue 
is  insufficient 
to  meet  new 
claims. 

1823.  144,  §  3. 
R.  S.  66,  §  13. 
G.  S.  97,  §  19. 
P.  S.  136.  §  4. 
R.  L.  141.  §  4. 
11  Met.  238. 
4  Gray.  514. 
7  Gray.  167. 
9  Allen.  149. 
130  Mass.  385. 


Section  3.     If  an  executor  or  administrator  pays  under  the  pre-  1 

ceding  section,  bef^M^e  notice  of  the  demand  of  any  other  creditor,  the  2 

whole  of  the  estate  and  effects  of  the  deceased,  he  shall  not  be  required  3 

in  consequence  of  such  notice  to  represent  the  estate  insolvent,  but  4 

in  an  action  against  him  he  shall  be  discharged  upon  proving  such  5 

payments.  6 

Section  4.     If   an   executor   or   administrator   pays,   under   section  1 

two,  so  much  of  the  estate  and  effects  of  the  deceased  that  the  re-  2 

mainder  is  insufficient  to  satisfy  a  demand  of  which  he  afterward  has  3 

notice,  he  shall  be  liable  on  such  last  mentioned  demand  for  only  so  4 

much  as  may  then  remain.    If  two  or  more  such  demands  are  exliibited,  5 

which  together  exceed  the  amount  of  assets  remaining  in  his  hands,  6 

he  may  represent  the  estate  insolvent,  and  shall,  pursuant  to  a  decree  7 

of  the  probate  court,  divide  and  pay  over  what  remains  in  his  hands  8 

among  the  creditors  who  prove  their  debts  under  the  commission  of  in-  9 

solvency;  but  the  creditors  of  the  deceased  who  have  been  previously  paid  10 

shall  not  be  liable  to  repay  any  part  of  the  amount  received  by  them.  11 


When  payment 
to  preferred 
creditors  bars 
actions  by 
others. 

1823,  144,  §  1. 
R.  S.  66.  §  14. 
G.  S.  97.  §  20. 
P.  S.  136,  §  5. 
R.  L.  141,  §  5. 
142  Mass.  227. 
160  Mass.  499. 
173  Mass.  112. 
195  Mass.  155. 
221  Mass.  587. 


Section  5.     If  it  appears,  upon  the  settlement  of  the  account  of  an  1 

executor  or  administrator  in  the  probate  court,  that  the  whole  estate  2 

and  effects  which  have  come  to  his  hands  have  been  exhausted  in  paying  3 

the  charges  of  administration  and  debts  or  claims  entitled  by  law  to  a  4 

preference  over  the  common  creditors  of  the  deceased,  such  settlement  5 

shall  be  a  bar  to  an  action  brought  against  him  by  a  creditor  who  is  6 

not  entitled  to  such  preference,  although  the  estate  has  not  been  repre-  7 

Sented  insolvent.  226  Mass.  388.  227  Mass.  303.  8 


debt'rTdt"^  Section  6.  If  a  debt  claimed  by  an  executor  or  administrator  as  1 
«'"i^d  persons  (j^g  ^q  jjjjjj  from  the  deceased  is  disputed  by  any  person  interested  in  2 
tors,  etc.  the  estate,  the  claimant  shall  file  in  the  probate  court  a  statement  of  his     3 


Chap.  197.]  payment  of  debts.  2165 

4  claim  in  MTiting,  setting  forth  distinctly  and  fully  the  nature  and  grounds  i789,  ii,  §  i. 

5  thereof;    and  the  same  may  then  be  submitted  under  an  order  of  the  g! sis?! §26! 

6  court  to  one  or  more  arbitrators,  if  the  claimant  and  the  party  objecting  r.  l.  hl|  6. 

7  agree  upon  the  arbitrators  to  be  appointed.    The  court  shall  have  the  J^Mass^lbo. 

8  powers  of  courts  of  common  law  to  discharge  the  rule  by  which  the  ?„'^',"i^  ^-f^, 

I     .         .  P  ,  .  1      T       n  11  •      •  10  Allen,  .ioJ. 

9  claim  IS  reierred,  to  reject  and  disallow  the  award  or  to  recommit  it  to  i32  Mass.  536. 

.  149  Mass   520 

10  the  arbitrators.    The  award  of  such  arbitrators,  if  accepted  by  the  pro-  is?  Mass!  sss. 

1 1  bate  court,  shall  be  final  and  conclusive.    The  said  arbitrators  shall  be 

12  awarded  reasonable  compensation  by  the  probate  court,  which  shall 

13  be  paid  by  the  county  where  they  are  appointed. 

1  Section  7.     If  the  parties  do  not  agree  upon  the  arbitrators,  or  if  |'"g'',?"''f fj- 

2  the  award  is  not  confirmed  by  the  probate  court,  the  court  shall  decide  '^-  s-  87, 1 27. 

3  upon  the  claim.  p.  s.  ise,  §  7. 

R.  L.  141,  §  7.  1919,  274,  §  10.  9  Met.  329.  195  Mass.  559. 

1  Section  8.     If  one  of  two  or  more  persons  who  are  indebted  upon  a  Liability  of 

2  joint  contract,  or  upon  a  judgment  founded  on  such  contract,  dies,  his  ceatedjoinUy 

3  estate  shall  be  liable  therefor  as  if  the  contract  had  been  joint  and  1799^57. 

4  several  or  as  if  the  judgment  had  been  against  him  alone. 

R.  S.  66,  §27.  R.  L.  141,  §  8.  11  Cush.  152.  120  Mass.  137. 

G.  S.  97,  §28.  2  Mass.  572.  7  Allen.  112.  124  Mass.  219,  367. 

P.  S.  136,  §8.  4  Met.  537.  119  Mass.  361.  214  Mass.  374. 

limitation  of  actions  by  creditors. 

1  Section  9.     An  executor  or  administrator,  after  having  given  due  Time  for 

2  notice  of  his  appointment,  shall  not  be  held  to  answer  to  an  action  by  a  b™fSftors'.°°^ 

3  creditor  of  the  deceased  which  is  not  commenced  within  one  year  from  nlf;  28,'  1 2! 

4  the  time  of  his  giving  bond  for  the  performance  of  his  trust,  except  as  J^jl' |g4^ ^^j 

5  provided  in  this  chapter.     The  probate  court  may  allow  creditors  fur-  cf^|' gf^i  5 

6  ther  time  for  bringing  actions,  not  exceeding  two  years  from  the  time  ps.  136,  §9. 

7  of  the  giving  of  his  official  bond  by  such  executor  or  administrator,  pro-  1914;  699!  §  3. 

8  vided  that  application  for  such  further  time  be  made  before  the  expir-  i6MaS429. 

9  ation  of  one  year  from  the  time  of  the  approval  of  said  bond.  6°c^'s'iS'.'2^35. 

12  Cush.  324.  121  Mass.  222.  175  Mass.  483. 

4  Allen,  359.  123  Mass.  489.  180  Mass.  27. 

8  Allen,  532.  134  Mass.  115,  275.  181  Mass.  109,  531. 

11  Allen,  101.  140  Mass.  66.  185  Mass.  455. 

12  Allen,  330.  142  Mass.  248.  207  Mass.  291. 

13  Allen,  221.  149  Mass.  62.  211  Mass.  282. 
104  Mass.  277.  157  Mass.  358.  214  Mass.  134. 
112  Mass.  27.  161  Mass.  418.  215  Mass.  547. 

115  Mass.  508.  172  Mass.  356.  219  Mass.  40,  199. 

116  Mass.  447.  173  Mass.  233.  235  Mass.  171. 

117  Mass.  222. 

1  Section  10.     If  the  supreme  judicial  court,  upon  a  bill  in  equity  Supreme  judi- 

2  filed   by  a  creditor  whose  claim  has  not  been  prosecuted  within  the  rcii'eve"af\e'r''^ 

3  time  limited  by  the  preceding  section,  deems  that  justice  and  equity  fseJIm"^''^ 

4  require  it  and  that  such  creditor  is  not  chargeable  with  culpable  neglect  ^  |;  ^4*^  MJ'g 

5  in  not  prosecuting  his  claim  within  the  time  so  limited,  it  may  give  s  Alien,  121. 

6  him  judgment  for  the  amount  of  his  claim  against  the  estate  of  the  365. '"'' 

7  deceased  person;    but  such  judgment  shall  not  affect  any  payment  or  12  Alien! 333! 

8  distribution  made  before  the  filing  of  such  bill.  103  Mass.  285.  ^^  '^''"*^-  ^'*''- 

123  Mass.  489.  160  Mass.  580.  185  Mass.  22.  212  Mass.  416. 

127  Mass.  268.  169  Mass.  97.  192  Mass.  241.  223  Mass.  359. 

149  Mass.  253.  179  Mass.  336.  207  Mass.  207.  225  Mass.  635. 

1  Section  11.     If  new  assets  come  to  the  hands  of  an  executor  or  ad-  Smrfo'r°?red- 

2  ministrator  after  the  expiration  of  one  year  from  the  time  of  his  giving  b°''rec''ei't°of 

3  bond,  he  shall  account  for  and  apply  the  same  in  like  manner  as  if  they  ?<■"-, ''^='.'=tf. 


2166  PAYMENT  OF  DEBTS.  [ChAP.    197. 

cf^l'97*§V'    li^d  been  received  within  said  one  year,  and  shall  be  liable,  on  account  4 

R  L  'hi  \^ii  °^  ^^"^^  ^^^  assets,  to  an  action  at  law  or  to  a  proceeding  in  the  probate  5 

1914!  699,'  §  4.  ■  court  by  or  for  the  benefit  of  a  creditor,  in  like  manner  as  if  such  assets  6 

3  Pick.  365.  '     had  been  received  within  the  one  year,  if  such  action  or  proceeding  is  7 

6  Allen!  372!      commcnced  within  six  months  after  the  creditor  has  notice  of  the  receipt  8 

9  Allen!  365.      of  such  assets,  and  within  one  year  after  they  are  actually  received.  9 

99  Mass.  616.  137  Mass.  547.  167  Mass.  536.  212  Mass.  248. 

105  Mass.  229.  157  Mass.  358.  180  Mass.  223.  229  Mass.  448. 

117  Mass.  222.  163  Mass.  491.  207  Mass.  207.  230  Mass.  514. 

tiS^Uaction         SECTION  12.     If  an  action  commenced  against  an  executor  or  ad-  1 

feet /^tenf"     ministrator  before  the  expiration  of  one  year  from  the  time  of  his  giving  2 

<="•         ,       bond  fails  of  a  sufficient  service  or  return  by  an  unavoidable  accident,  3 

G.  s.'97,  §  7.      if  the  viTit  in  such  action  is  abated  or  defeated  in  consequence  of  a  de-  4 

R.  L.  141,  §  r2.  feet  in  the  form  thereof  or  of  a  mistake  in  the  form  of  the  proceeding,  5 

nl^MaTs!  17^1.   if,  after  a  verdict  for  the  plaintiff,  the  judgment  is  arrested,  or,  if  a  6 

judgment  for  the  plaintiff  is  reversed  on  a  WTit  of  error,  the  plaintiff  7 

may  commence  a  new  action  for  the  same  cause  within  one  year  after  8 

the  abatement  or  other  determination  of  the  original  action,  or  after  9 

the  reversal  of  the  judgment  therein.  10 

afteTonl'^year!^      SECTION  13.     A  Creditor  of  the  dcceascd,  whose  right  of  action  does  1 

R.^l.'ee.ls!     not  accrue  within  one  year  after  the  giving  of  the  administration  bond,  2 

1879', n'; 243     or  within  such  further  time  as  may  be  allowed  by  any  extension  granted  3 

R  l\«V^3  ^nder  section  nine,  or  in  the  case  of  an  administrator  de  bonis  non,  4 

1914!  699,"  §  6.    within  the  period  allowed  by  section  seventeen,  may  present  his  claun  5 

§  392.     '         to  the  probate  court  at  any  time  before  the  estate  is  fully  administered;  6 

§25."   '      '      and  if,  upon  examination  thereof,  tlie  court  finds  that  such  claim  is  or  7 

i04°Mass.  577.    may  become  justly  due  from  the  estate,  it  shall  order  the  executor  or  8 

lis  Mass  272    administrator  to  retain  in  his  hands  sufficient  assets  to  satisfy  the  same.  9 

?II'i??*-  ,-,    But  if  a  person  interested  in  the  estate  offers  to  give  bond  to  the  alleged  10 

131  Mass.  Sol.  J^  .  •(.  1  pi-i-ii 

146  Mass.  36i;.    creditor  with  sufficient  surety  or  sureties  tor  the  payment  of  his  claim  11 

154  Mass!  26ij!    if  it  Is  provcd  to  be  due,  the  court  may  order  such  bond  to  be  taken,  12 

171  Mass!  386!  iustcad  of  requiring  assets  to  be  retained  as  aforesaid.  If  because  of  13 
185  Mass!  22.''  partial  distribution  already  made,  or  because  of  inability  to  sell  the  real  14 
198  Mass!  70*'  estate  of  the  deceased,  the  executor  or  administrator  is  unable  to  retain  15 
202  Mass.  270.   sufficient  assets  to  satisfy  the  claim  in  full  as  finallv  established,  the  16 

21.-)  Mass.  315.                                                              i-i-piii                        i"               •  i^ 

219  Mass.  40.     Creditor  may  enforce  his  claim  for  the  balance  under  section  twenty-  17 

nine,  within  one  year  from  the  final  settlement  of  said  estate  or  from  18 

the  time  when  the  amount  of  said  balance  is  finally  determined.  19 

R"s^66,''r6.''        Section  14.     The  decision  of  the  probate  court  upon  the  claim  of  1 

?87U23'8^^'      s^'^^  creditor  shall  not  be  conclusive  against  the  executor  or  adminis-  2 

R  l^^uVh  trator  or  other  person  interested  to  oppose  the  allowance  thereof,  and  3 

172  Mass!  351).'  he  shall  not  be  compelled  to  pay  the  same  unless  it  is  proved  to  be  due  4 
202  Mass!  270.   in  an  action  commenced  by  the  claimant  within  one  year  after  his  claim  5 

becomes  payable,  or,  if  an  appeal  is  taken  from  the  decision  of  the  pro-  6 

bate  court,  in  an  action  commenced  within  one  year  after  tlic  final  7 

determination  of  the  proceedings  thereon.  8 

R'^^ie^'tr'        Section  15.    The  action  referred  to  in  the  preceding  section  shall  be  1 

p'l?36,Vi's    brought  against  the  executor  or  administrator,  if  he  has  been  required  2 

?„-,4,"^'il^-  to  retain  assets  therefor;   otherwise,  upon  the  bond  given  under  section  3 

127  Mass.  2o8.  7  /       a  o 

185  Mass.  22.     thirteen.  4 


Chap.  197.]      PA-iiiENT  of  legacies  and  distributive  shares.  2167 

1  Section  16.     If  the  action  is  brought  on  such  bond,  the  plaintiff  shall  |*s^|"''|'"g'- 

2  set  forth  his  original  cause  of  action  against  the  deceased  in  like  manner  p|  fopVir, 

3  as  would  be  required  in  a  declaration  for  the  same  demand  against  the  R.  l.  141,  §  le. 

4  executor  or  administrator,   and  may  allege  the  non-payment  of  the 

5  claim  as  a  breach  of  the  condition  of  the  bond;  and  the  defendant 

6  may  answer  any  matter  of  defence  which  would  be  available  against 

7  the  claim  if  prosecuted  in  the  usual  manner  against  the  executor  or 

8  administrator. 

1  Section  17.     An  administrator  de  bonis  non  shall  be  liable  to  an  Limitations  of 

2  action  by  a  creditor  of  the  deceased  for  the  same  period  as  provided  by  admiSi'stnTtors 

3  section  nine  for  actions  against  an  original  executor  or  administrator,  r;s°66.°°°' 

4  less  the  period  during  which  the  statutory  limitation  provided  by  said  i85f^294  §  2 

5  section  nine  has  run  against  previous  executors  or  administrators  of  the  f^-  S-  97,  §§  12, 

6  same  estate,  but  in  any  event  for  not  less  than  six  months  from  the  date  P-  s.  i36,  §  17. 

7  of  his  appointment.     The  court  may  allow  further  time  for  bringing  i9u'  699,'  §  7. ' 

8  actions  as  provided  in  said  section  nine,  provided  application  therefor  us  Mask  489. 

9  is  made  before  the  expiration  of  the  period  herein  provided.    This  sec-  iasMass.tn! 

10  tion  shall  not  apply  to  claims  already  barred  by  said  section  nine  at  the 

11  date  of  the  appointment  of  the  administrator  de  bonis  non. 

1  Section  18.     If  new  assets  come  to  the  hands  of  such  administrator  Liability  upon 

2  after  the  time  before  limited  for  the  commencement  of  actions  against  assets'  °  °^" 

3  him,  he  shall  account  for  such  new  assets,  and  shall  be  liable  on  account  §;  |;  97;  |  ?!; 

4  thereof  to  an  action  at  law  and  to  proceedings  in  the  probate  court  by  ^  ^  'm.Vfs 

5  or  in  behalf  of  a  creditor,  in  like  manner  as  is  provided  in  this  chapter  ^29  Mass.  44.S. 

.  ...  1..  230  Mass.  514. 

6  relative  to  an  origmal  executor  or  admmistrator. 

PAYMENT    OF   LEGACIES   AND    DISTRIBUTIVE   SH.\RES. 

1  Section  19.     A  legatee  may  recover  his  legacy  and  enforce  all  rights  Actions  to  re- 

2  in  respect  to  the  same  by  proceedings  in  equity  in  the  probate  court  in  mT.  8,^(2^^' 

3  which  the  will  was  proved.    Nothing  in  this  chapter  shall  be  construed  1783724^ §' iV°' 

4  to  hmit  the  time  within  which  such  proceedings  may  be  brought.     No  R^l'ee'ffe 

5  action  at  law  shall  be  brought  against  the  estate  of  the  testator  for  such  pfigg^^fg 

6  recovery.  R.  L.  141,  §  19.  1915,  151,  §  L  4  Mass.  2O8,  634. 

2  Pick.  619.                       .  6  Allen,  500.  136  Mass.  138. 

3  Pick.  213.  7  Allen,  64.  140  Mass.  502. 
7  Pick.  296.  105  Mass.  431.  156  Mass.  313. 
11  Pick.  603.  106  Mass.  586.  163  Mass.  381. 
13  Pick.  393.  112  Mass.  110.  211  Mass.  178. 
16  Pick.  62S.  114  Mass.  404.  221  Mass.  587. 
5  Gray,  67.  121  Mass.  249.  224  Mass.  226. 

1  Allen,  490.  134  Mass.  11.  228  Mass.  285,  318. 

1  Section  20.     The  rate  of  interest  upon  pecuniary  legacies,   unless  Rate  of 

2  otherwise  provided  in  the  will,  shall  be  such  as  the  supreme  judicial  i9'i5!'i5i,  §  2. 

3  court  may  by  general  rules  establish,  and  in  the  absence  of  any  such  Hl.'^*^^'  ^^^' 

4  rules  the  rate  shall  be  four  per  cent  per  annum.  229  Mass.  267. 

1  Section  21.     If  an  executor  or  administrator,  within  one  year  after  indemnity  for 

2  giving  bond  for  the  performance  of  his  trust,  is  required  by  a  legatee  or  {^ga?y,"et°,  if 

3  next  of  kin  to  make  payment,  in  whole  or  in  part,  of  a  legacy  or  dis-  onTyral"'""" 

4  tributive  share,  the  probate  court  may  require  that  such  legatee  or  r^s'66,°§\5!^' 

5  next  of  kin  shall  first  give  bond  to  the  executor  or  administrator,  with  pfi'Jfi\^25 

6  surety  or  sureties  approved  by  the  court,  and  conditioned  to  repay  ^■'^- oil'' IP- 

7  the  amount  so  to  be  paid  or  so  much  thereof  as  may  be  necessary  to  i5i  MasV.  595. 


2168 


PAYMENT   OF   LEGACIES   AKD  DISTRIBUTIVE   SHARES.      [ChAP.    197. 


satisfy  any  demands  which  may  be  thereafter  recovered  against  the  8 
estate  of  the  deceased,  and  to  indemnify  the  executor  or  administrator  9 
against  all  loss  and  damage  on  account  of  such  payment.  10 


but^inat^any  SECTION  22.  If  thc  court  fiuds  that  partial  distribution  of  the  per- 
i's73  ■>''4  5  2  sonal  property  of  an  estate  in  process  of  settlement  therein  can,  without 
p.  s.'i36'§2i  detriment  to  such  estate,  be  made  to  the  persons  entitled  thereto,  the 
151  Mass.' 695."  court  may,  subject  to  the  rights  of  creditors  and  after  notice,  order  such 
153  iMassl  228.   partial  distribution  to  be  made.  221  Mass,  5S7. 


cias^'' '°  Section  2.3.     If  under  a  will  a  legacy  is  to  be  distributed  in  whole 

1S95. 134.    ^^  or  in  part  among  the  heirs  or  next  of  kin  of  any  person,  or  among  persons 

193  iviass.'  38. "  of  E  Certain  class,  the  probate  court,  upon  the  application  of  any  person 

interested,  after  notice,  may  order  distribution  among  such  persons  as 

according  to  the  will  seem  to  be  entitled  to  the  legacy. 


How  payment 
of  distributive 
shares,  etc.. 
may  be  en- 
forced. 
1915,  151, 
l§4,5. 


Section  24.  ^Mien  the  amount  due  a  person  who  is  next  of  kin  or 
a  distributee  of  an  intestate  estate  on  account  of  his  share  of  the  per- 
sonal property  has  been  ascertained  by  a  decree  of  the  probate  court 
for  distribution  or  partial  distribution,  or  whenever  any  real  or  personal 
estate  comprised  in  a  tru^t  or  in  the  estate  of  a  deceased  person  is 
ordered  by  the  probate  court  to  be  sold  and  distributed  under  section 
nineteen  of  chapter  two  hundred  and  two,  section  twenty-five  of  chapter 
two  hundred  and  three  or  section  twenty-one  of  chapter  two  hundred  and  8 
six,  or  any  legacy  or  any  surplus  proceeds  of  sale  are  ordered  by  said  9 
court  to  be  distributed  or  disposed  of  pursuant  to  the  preceding  section  10 
or  section  nine  of  chapter  two  hundred  and  foiu-,  or  whenever  said  court  11 
in  pursuance  of  any  authority  conferred  on  it  orders  the  distribution  12 
or  disposal  of  any  fund  or  moneys,  payment  of  the  same,  by  the  execu-  13 
tor,  administrator,  trustee  or  other  person  so  ordered  to  pay  or  distrib-  14 
ute,  to  the  person  entitled  may,  if  the  executor,  administrator,  trustee  15 
or  other  person  neglects  upon  demand  to  pay  such  amount,  be  en-  16 
forced  summarily  by  the  probate  court  upon  motion  of  the  person  en-  17 
titled,  in  the  same  manner  as  a  like  payment  under  a  decree  in  equity  18 
may  be  enforced,  and  execution  may  also  be  issued  therefor  against  the  19 
executor,  administrator,  trustee  or  other  person  personally  as  upon  a  20 
judgment  at  law.  21 


Set-off  of 

debts  due  from 

legatees,  etc. 

1879,225,  §§  1, 

2,4. 

P.  S.  136,  §§22, 

23. 

R.  L.  141,  §  23. 

114  Mass.  24. 

136  Mass.  138. 

109  Mass.  430. 

179  Mass.  331. 

196  Mass.  562. 


Section  2.5.     A  debt  due  the  estate  of  a  deceased  person  from  a  1 

legatee  or  distributee  of  such  estate  shall  be  set  off  against  and  deducted  2 

from  the  legacy  to  such  legatee  or  from  the  distributive  share  of  such  3 

distributee;  and  the  probate  court  shall  hear  and  determine  the  validity  4 

and  amount  of  any  such  debt,  and  may  make  all  necessary  or  proper  5 

decrees  and  orders  to  effect  such  set-oft"  or  deduction;  but  this  section  6 

shall  not  prejudice  any  remedy  of  an  executor  or  administrator  for  the  7 

recovery  of  such  debt  or  affect  the  liability  of  the  legatee  or  distributee  8 

for  the  excess  of  his  indebtedness  over  the  amount  of  his  share  in  or  9 

claim  upon  the  estate  to  which  he  is  indebted.  10 


Section  26.     If  an  annuity,  or  the  use,  rent,  income  or  interest  of     1 


Annuities,  etc., 

payable  from  ,         ,  .ii  i  •  •         i  r* 

death  of  property,  real  or  personal,  is  given  by  will  or  by  an  mstrument  in  the  2 

1848.310,  §  1.  nature  thereof  to  or  in  trust  for  the  benefit  of  a  person  for  life  or  until  3 


Chap.  197.]      p.ayment  of  legacies  and  distributive  shares.  2169 

4  the  happening  of  a  contingency,  such  person  shall  be  entitled  to  receive  g.  s.  97.  §  23. 

5  and  enjoy  the  same  from  and  after  the  decease  of  the  testator,  unless  r.  l.  ui,  §  24. 

6  it  is  otherwise  provided  in  such  will  or  instrument. 

11  Pick.  371.  102  Mass.  49.  131  Mass.  20.  1S4  Mass.  103.  4. 

2  Gush.  377.  103  Mass.  297,  345.  137  Mass.  21,  18S  Mass.  190. 

9  Gush.  151.  121  Mass.  178.  138  Masa.  303.  208  Mass.  260. 

6  Gray,  341.  128  Mass.  575.  163  Mass.  509.  209  Masa.  432. 

1  Section  27.     A  person  entitled  to  an  annuity,  rent,  interest  or  in-  Apportionment 

2  come,  or  his  representative,  shall  have  the  same  apportioned  if  his  right  °^^^°°"'"^S' 

3  or  estate  therein  terminates  between  the  days  upon  which  it  is  payable,  g*|'97''8 If' 

4  unless  otherwise  provided  in  the  will  or  instrument  by  which  it  was  p-  ^  ^^^-  §25. 

5  created ;  but  no  action  shall  be  brought  therefor  until  the  expiration  of  22  pick.  299. 

6  the  period  for  which  the  apportionment  is  made.  14  Gray,  274. 

9  Allen,  246.  113  Mass.  430.  171  Maaa.  42. 

98  Mass.  462.  121  Mass.  178.  183  Masa.  165. 

103  Masa.  297.  139  Mass.  449.  235  Masa.  298. 

LIABILITY   OF   HEIRS,   ETC.,   AFTER   SETTLEMENT   OF  ESTATE. 

1  Section  28.     After  the  settlement  of  an  estate  by  an  executor  or  Liability  of 

2  administrator,  and  after  the  expiration  of  the  time  limited  for  the  com-  after 'set  tie- 

3  mencement  of  actions  against  him  by  the  creditors  of  the  deceased,  nss'.eeTs** 

4  the  heirs,  next  of  kin,  devisees  and  legatees  of  the  deceased  shall  be  g- 1-  ^°j  §  i|j 

5  liable  in  the  manner  provided  in  the  following  sections  for  all  debts  for  p  s  ise,'  §  2^v 

6  which  actions  could  not  have  been  brought  against  the  executor  or  12  Aiass.  395T  ' 

7  administrator,  and  for  which  provision  is  not  made  in  the  preceding  20  Pick^'2. 

S    sections.  8  Alien,  259.  6  Gush.  235. 

118  Mass.  369.  136  Maas.  174.  176  Maaa.  141. 

124  Maaa.  560.  144  Masa.  135.  198  Masa.  76. 

127  Masa.  268.  146  Masa.  366.  202  Mass.  270. 

128  Mass.  271,  158  Mass.  418.  209  Mass.  388. 
272,  277,  628,  555.  171  Masa.  386.  ■      215  Masa.  315. 

1  Section  29.     A  creditor  whose  right  of  action  accrues  after  the  ex-  Enforcement 

2  piration  of  said  time  of  limitation,  and  whose  claim  could  not  legally  iT-ssi'cG.'is. 

3  be  presented  to  the  probate  court,  or  whose  claim,  if  presented,  has  not  §;  |;  101,^/32 

4  been  allowed,  may,  by  action  commenced  within  one  year  next  after  j^-  ^  i^e,  §  27^ 

5  the  time  when  such  right  of  action  accrues,  recover  such  claim  against  ^  i^iaas.  395. 

6  the  heirs  and  next  of  kin  of  the  deceased  or  against  the  devisees  and  101  Mass.'506. 

7  legatees  under  his  will,  each  of  whom  shall  be  liable  to  the  creditor  to  an  272, 277,'*628, " 

8  amount  not  exceeding  the  value  of  the  real  or  personal  property  which  isI'Maas.  195. 

9  he  has  received  from  the  estate  of  the  deceased.    But  if  by  the  will  of  "eMasI'see; 

10  the  deceased  any  part  of  his  estate  or  any  one  or  more  of  the  devisees  JngMasa'?"' 

11  or  legatees  is  made  exclusively  liable  for  the  debt  in  exoneration  of  the  202  Masa.  276. 

_  _  .  .'^  „     ,  nil-  1  I  •    •  i>  2I0  Mass.  315. 

12  residue  or  the  estate  or  01  otlier  devisees  or  legatees,  such  provisions  or 

13  the  will  shall  be  complied  with,  and  the  persons  and  estate  so  exempted 

14  shall  be  liable  for  only  so  much  of  the  debt  as  cannot  be  recovered  from 

15  those  who  are  first  chargeable  therewith. 

1  Section  30.     If  an  heir,  next  of  kin,  devisee  or  legatee  dies  without  I'pon  death  of 

2  having  paid  his  just  proportion  of  such  debt,  his  executor  or  adminis-  executor,' etc., 

3  trator  shall  be  liable  therefor,  as  for  a  debt  of  his  decedent,  to  the  extent  1788!  e'e,  §^5. 

4  to  which  said  decedent  would  have  been  liable  if  living.  g;  1;  101,^/33. 

p.  S.  136,  §  28.  R.  L.  141,  §  28.  1  Met.  387.  202  Mass.  270. 

1  Section  31.     If,  under  the  two  preceding  sections,  more  than  one  Suit  in  equity 

2  person  is  liable  for  the  debt,  the  creditor  may  recover  such  debt  by  a  on™hc'ir!'!ft° , 

3  suit  in  equity  in  the  supreme  judicial  or  superior  court  against  such  R.''s.'7o'''ri6. 


2170 


INSOLVENT  ESTATES   OF  DECEASED  PERSONS. 


[Chap.  198. 


G.  s.  101,  §  34.  persons  so  liable  as  are  within  reach  of  process.  The  court  shall  deter- 
r'.  l.  141,  §  29.  mine,  by  the  verdict  of  a  jury  if  either  party  requires  it,  what  amount 
i\Fet''387.^'  is  due  to  the  plaintiff,  and  shall  decide  how  much  each  of  the  defendants 
15  Gray.*596.     is  liable  to  pay  toward  the  debt. 

16  Gray,  127,  136  Mass.  504. 


Suit  not  to  be 
dismissed  for 
want  of  proper 
defendants. 
R.  S.  70,  §  18. 
G.  S.  101,  §  36. 
P.  S.  136,  §  30. 
R.  L.  141,  §  30. 


Section  32.  Such  suit  shall  not  be  dismissed  or  barred  for  not 
making  all  the  persons  who  might  have  been  so  included  defendants; 
but  in  any  stage  of  the  cause  the  court  may,  upon  terms,  award  proper 
process  to  bring  in  other  parties,  and  may  allow  amendments  in  order  to 
charge  them  as  defendants. 


When  one  heir, 
etc.,  is  unable 
to  pay,  the 
others  to  be 
liable  for  whole 
amount. 
1783,  24,  §  18. 
1788,  66. 
R.  S.  70,  §  17. 


Section  33.     If  an  heir,  devisee  or  other  person  who  is  liable  for  the  1 

debt  is  insolvent,  unable  to  pay  his  proportion  thereof  or  beyond  reach  2 

of  process,  the  others  shall  be  liable  to  the  creditor  for  the  whole  amount  3 

of  his  debt,  but  not  in  excess  of  the  amounts  received  by  them  respectively  4 

from  the  estate  of  the  deceased.  5 

G.  S.  101,  §  35.  P.  S.  136,  §  31.  R.  L.  141,  §  31. 


If  one  heir, 
etc.,  fails  to  pay 
his  just  pro- 
portion, ne 
shall  be  liable 
to  the  others. 
R.  S.  70,  §  19. 
G.  S.  101.  §  37. 
P.  S.  136,  §  32. 
R.  L.  141,  §  32. 
10  Mass.  450. 


Section  34.  If,  in  consequence  of  insolvency  or  bankruptcy,  absence 
or  other  cause,  a  person  liable  for  such  debt  fails  to  pay  his  just  propor- 
tion thereof  to  the  creditor,  he  shall  be  liable  to  indemnify  all  who,  by 
reason  of  such  failure  on  his  part,  pay  more  than  their  just  proportion 
of  the  same.  Such  indemnity  may  be  recovered  by  all  of  them  jointly, 
or  in  separate  actions  by  one  or  more  of  them  for  his  or  their  parts 
respectively. 

REFERENCES. 

Attachments,  Chap.  230,  §  7. 

Debts  and  claims  which  survive  against  executor  and  administrator.  Chap.  228,  §  1. 
Limitation  of  actions  against  executor  and  administrator  for  their  own  acts.  Chap. 
260,  §§4,  11. 

Effect  of  death  on  the  general  statute  of  limitations,  Chap.  260,  §  10. 
§  3.     Insolvent  estates.  Chap.  198. 


CHAPTER     198. 

INSOLVENT  ESTATES  OF  DECEASED  PERSONS. 


Sect. 

ohder  of  payment  of  debts. 

1.  Order  of  payment  of  debts. 

PROOF    OF    CLAIMS. 

2.  Commissioners. 

3.  Duties. 

4.  Court  to  examine  claims,  when. 

5.  Notice  to  creditors. 

6.  Appointment  of  new  commissioner. 

7.  Claimants  to  answer  under  oath. 

8.  Examination  by  court. 

9.  Limit  of  time  for  proof  of  claims. 
10.  Late  claims  barred.     New  assets. 


Sect. 

APPEALS. 

11.  Appeals. 

12.  Time  for  claiming  appeal. 

13.  Proceedings  on  appeal. 

14.  Waiver  of  appeal   and   submission   to 

arbitration. 

15.  Costs  on  appeal. 

16.  Late  entry  of  appeal. 

17.  Effect  of  allowance  of  appeal. 

PAYMENT   OF   DIVIDENDS   TO    CREDITORS. 

18.  Distribution  of  assets  among  creditors. 

whose  claims  are  proved. 


Chap.  198.] 


INSOLVENT   ESTATES   OF   DECEASED   PERSONS. 


2171 


Sect. 

19.  Same  subject. 

20.  Same  subject. 

21.  Provisions  for  case  of  deceased  partner. 

22.  Enforcement  of  claim  for  di\adend. 

23.  Proceedings    if    assets    are    sufficient 

to   pay   all   claims   allowed.      Other 
claims. 

24.  Proceedings  on  such  other  claims. 

25.  Disposition  of  unclaimed  dividends. 

26.  Same  subject. 

27.  Removal  of  executor,  etc.,   neglecting 

to  account. 


Sect. 


CONTINQENT    CLAIMS. 


28.  Contingent  claims. 

29.  Same  subject. 

30.  Same  subject. 

.\CTIONS     BY     CREDITORS     PENDING     INSOL- 
VENCY   PROCEEDINGS. 

31.  Actions  against  an  executor,  etc.,  after 

representation  of  insolvency. 

32.  Time  for  bringing  such  action. 

33.  Proceedings  when  judgment  has  been 

rendered  against  an  insolvent  estate. 


P.  S.  137.  §  I. 
1884,  293. 
R.  L.  142.  §  1. 
1909,  297. 


ORDER  OF  PAYMENT   OF  DEBTS. 

1  Section  1.    If  the  estate  of  a  person  deceased  is  insufBcient  to  pay  order  of 

2  all  his  debts,  it  shall,  after  discharging  the  necessary  expenses  of  his  ^ebtT"'"^ 

3  funeral  and  last  sickness  and  the  charges  of  administration,  be  applied  feg^-sfi'efu 

4  to  the  payment  of  his  debts,  which  shall  include  equitable  liabilities,  in  }^|^'  |'  ^  ^■ 

5  the  following  order:  R-  s'es.  §  i. 

6  First,  Debts  entitled  to  a  preference  under  the  laws  of  the  United  issi',  im 

•'  ■*■  V>     Q      11-7 

7  States. 

8  Second,  Public  rates,  taxes  and  excise  duties. 

9  Third,  Wages  or  compensation,  to  an  amount  not  exceeding  one  I'afe?^^'  ^'^' 

10  hundred  dollars,  due  to  a  clerk,  servant  or  operative  for  labor  per-  l^pl^^li^' 

1 1  formed  within  one  year  last  preceding  the  death  of  such  deceasetl  person  l^j^^^Kp^- 

12  or  for  such  labor  so  performed  for  the  recovery  of  pa^Tnent  for  which  a  4  Alien,  ui. 

13  judgment  has  been  rendered.  137  Mass' 412! 

14  Fourth,  Debts,  to  an  amount  not  exceeding  one  hundred  dollars,  for  ul  Mass.  326'. 
1.5  necessaries  furnished  to  such  person  or  his  family  within  the  sLx  months  illMSssz 

16  last  preceding  his  death,  or  for  such  necessaries  so  furnished  for  the  226  Mass.  sss. 

17  recovery  of  payment  for  which  a  judgment  has  been  rendered. 

18  Fifth,  Debts  due  to  all  other  persons. 

19  If  there  is  not  enough  to  pay  all  the  debts  of  any  class,  the  creditors 

20  of  that  class  shall  be  paid  ratably  upon  their  respective  debts;   and  no 

21  payment  shall  be  made  to  creditors  of  any  class  until  all  those  of  the 

22  preceding  class  or  classes,  of  whose  claims  the  executor  or  administrator 
2.3  has  notice,  have  been  fully  paid. 


PROOF   OF   CLAIMS. 


1  Section  2.     If  the  probate  court  finds  from  the  representation  of  an  Commissioners. 

2  executor  or  administrator  that  the  estate  of  the  deceased  will  probably  1692-3, 1'e,  §  i. 

3  be  insufficient  for  the  payment  of  his  debts,  it  may  appoint  two  or  more  nil;  I'  ^  ^' 

4  commissioners  to  receive  and  examine  all  claims  of  creditors  against  §•  f  g|;  |  f 

5  such  estate,  and  to  return  a  list  of  all  claims  presented  to  them,  with  ^  l\491| 

6  the  amount  allowed  on  each.    All  debts  of  the  estate  of  said  deceased  1907,257! 

2  Mass  49S 

7  not  at  the  time  of  such  finding  barred  by  any  statute  of  limitations  120  Mass.  sie. 

8  may  be  allowed  either  by  said  commissioners  or  by  said  court.  132  Mass!  sae! 


139  Mass.  360. 

140  Mass.  596. 
143  Mass.  326. 
149  Mass.  520. 


183  Mass.  510. 
195  Mass.  155. 
204  Mass.  270. 
214  Mass.  549. 


216  Mass.  521. 
221  Mass.  587. 
228  Mass.  468. 


1  Section  3.     The  commissioners  shall  be  sworn.    They  shall  appoint  5"f'^.„ 

2  convenient  times  and  places  for  their  meetings  to  receive  and  examine  i6«2-3, 1'o.  §  i. 

3  claims,  and  shall  by  mail  or  otherwise  give  to  all  knoMn  creditors  at  1752-3,' 12,  §3. 


2172 


INSOLVENT  ESTATES   OF  DECEASED   PERSONS. 


[Cha-p.  198. 


17S4,  2. 
E.  S.  68, 
§§2-4. 
1854,  92. 
G.  S.  99, 
§§2^. 
P.  S.  137,  §  3. 
R.  L.  142,  §  3. 
1911,  177. 
1910,  IS. 
4  Met.  317. 
116  Mass.  447. 
139  Mass.  3G0. 


least  seven  days'  written  notice  of  the  time  and  place  of  each  meeting,  4 

and  such  other  notice  as  the  court  shall  order.     The  executor  or  ad-  5 

ministrator  shall,  fourteen  days  at  least  before  the  first  meeting,  give  6 

to  the  commissioners  the  names  and  residences  of  all  known  creditors.  7 

At  the  expiration  of  the  time  allowed  for  the  proof  of  claims,  the  com-  8 

missioners  shall  make  their  return  to  the  court.    They  shall  mail  post-  9 

paid  within  seven  days  thereafter,  or  within  such  further  time  as  the  10 

court  orders,  a  WTitten  notice  to  all   known  creditors  and  to  the  ad-  11 

ministrator  of  the  estate  or  the  executor  of  the  will  of  the  deceased,  and  12 

to  the  heirs,  legatees  or  devisees  of  the  deceased,  of  the  filing  of  said  13 

return,  and  shall,  within  thirty  days  after  said  notice,  file  in  the  registry  14 

of  probate  an  affidavit  of  having  given  the  same,  with  a  copy  thereof.  15 


Court  to 

examine  claims, 

when. 

1S73,  252, 

§§1,4. 

P.  S.  137.  §  4. 

R.  L.  142,  §  4. 

141  Mass.  509. 


Section  4.  If  the  court  does  not  appoint  commissioners  under 
section  two,  it  shall  receive  and  examine  the  claims  of  creditors,  allow 
such  as  should  legally  be  allowed  and  cause  a  list  of  all  claims  pre- 
sented for  proof,  with  the  amount  allowed  or  disallowed  on  each  claim, 
to  be  made  and  certified  by  the  register  of  said  court. 


Notice  to 
creditors. 
1873,  252,  §  2. 
P.  S.  137.  §  5. 
R.  L.  142,  §  5. 


Section  5.     The  court  shall  in  such  cases  order  the  executor  or  ad-  1 

ministrator  to  give  to  creditors  notice  of  the  times  when  and  places  2 

where  their  claims  will  be  examined,  in  the  same  manner  as  is  required  3 

of  commissioners.  4 


Appointment 
of  new  com- 
missioner. 
1803.  217,  §  2. 
1868,  327,  §  1. 
P.  S.  137.  §  6. 
R.  L.  142,  I  6. 


Claimants  to 

answer  under 

oath. 

1789,  50. 

R.  S.  68,  §§  15, 

16. 

G.  S.  99,  §§  15, 

16. 

P.  S.  137, 

§§7,8. 

Examination 
by  court. 
1899,  81. 
R.  L.  142,  §  S. 


Limit  of  time 
for  proof  of 
claims. 

C.  L.  250,  §  4. 
1692-3.  10,  §  1. 
1696,  8,  §  1. 
1784,  2. 
R.  S.  68,  §  4. 
G.  S.  99.  §  4. 
1863,217,  §  1. 
1868,327,  §  1. 
1873,  252,  §  4. 
P.  S.  137,  §  9. 
R.  L.  142,  §  9. 
1915,  13. 
6  Pick.  458. 
16  Pick.  255. 
104  Mass.  277. 


Section  6.     If  a  commissioner  appointed  under  section  two  dies  or  1 

resigns  before  his  duiies  are  fully  performed,  or,  if  for  unreasonable  2 

neglect  to  make  the  return  required  by  law  or  for  any  other  cause,  is  3 

removed,  the  probate  court  may  fill  the  vacancy.           i62  Mass.  450.  4 

Section  7.     The  commissioners  or  the  court  may  require  a  claimant  1 

to  make  true  answers  under  oath  to  all  questions  relative  to  his  claim;  2 

and  if  he  refuses  to  take  such  oath  or  to  answer  fully  all  questions,  his  3 

claim  may  be  disallowed.    Any  one  of  the  commissioners  may  administer  4 

the  oath  to  claimants  and  witnesses.                       R  l.  142,  §  7.  5 

Section  8.     The  probate  court  may,  except  while  an  appeal  is  pend-  1 

ing,  upon  the  application  of  the  executor  or  administrator,  examine  2 

under  oath  any  person  whose  claim  has  been  allowed  as  aforesaid  unless  3 

such  allowance  has  been  made  by  the  supreme  judicial  or  superior  court  4 

on  appeal,  may  summon  any  person  to  give  evidence  relati\e  thereto,  5 

and,  upon  notice,  alter  or  expunge  a  claim  which  it  finds  is  founded  in  6 

whole  or  in  part  in  fraud,  illegality  or  mistake.  7 

Section  9.     Six  months  after  the  appointment  of  the  commissioners  1 

or  after  the  order  of  the  court  under  section  five  shall  be  allowed  for  2 

creditors  to  present  and  prove  their  claims;  and  if  a  new  commissioner  3 

is  appointed  under  section  sLx,  the  time  shall  be  extended  until  the  ex-  4 

piration  of  sLx  months  from  his  appointment.     The  court  may  allow  5 

further  time  upon  petition  of  the  commissioners  or  any  party  in  in-  6 

terest,  and   during  such  extended  time  presentation  of  claims  which  7 

might  have  been  pre^•iously  presented  shall  not  be  barred  by  any  law  8 

limiting  the  time  within  which  actions  by  a  creditor  of  the  deceased  may  9 

be  brought  against  an  executor  or  administrator.  10 

116  Mass.  447.  212  Mass.  416. 


Ch.\P.    198.]  INSOLVENT   ESTATES    OF   DECEASED   PERSONS.  2173 

1  Section  10.     A  creditor  who  does  not  present  his  claim  for  allowance  Late  claims 

2  in  the  manner  herein  provided  shall  be  barred  from  recovering  the  same;  aS^ts.'      ^" 

3  but  if  new  assets  of  the  deceased  come  to  the  executor  or  administrator  fggoilfihf/i. 

4  after  the  decree  of  distribution,  the  claim  may  be  proved,  allowed  and  J^g^'  |'  ^  ^■ 

5  paid  as  provided  in  this  chapter  for  contingent  claims.  g- 1-  ^s.  §  20. 

p.  S.  137,  §  10.  15  Mass.  140.  104  Mass.  277.  •    •      .  S 

R.  L.  142,  §  10.  1  Gush.  461.  207  Mass.  207. 

APPEALS. 

1  Section  11.    Where  commissioners  are  appointed,  a  person  whose  Appeals. 

2  claim  is  disallowed  in  whole  or  in  part,  or  an  executor,  administrator,  1734!  2! 

3  heir,  legatee,  devisee  or  creditor  who  is  dissatisfied  with  the  allowance  of  a  §!  s!  99!  |  s. 

4  claim,  may  appeal  from  their  decision  to  the  superior  court  for  the  county  }g5|'  |||  ^  ^ 

5  where  the  probate  or  administration  was  granted,  and  the  claim  shall  p^^-  ijj^^  §  li- 

6  thereupon  be  tried  and  determined  in  like  manner  as  if  an  action  at  law  R-  l'.  ii2',  §  11 ; 

•  •  156  §  5 

7  had  been  brought  therefor  by  the  supposed  creditor  against  the  executor  190.5, 263. 

8  or  administrator.     If  the  court  examines  the  claim,  appeals  shall  be  ne  Mass.  125. 

9  under  chapter  two  hundred  and  fifteen.        127  Mass.  242.        i9s  Mass.  ise. 

1  Section  12.     Such  appeal  shall  be  claimed  and  notice  thereof  given  Time  for 

2  at  the  registry  of  probate  within  twenty  days  after  the  return  of  the  appeal"^ 

3  commissioners.     If  the  appeal  is  by  an  executor  or  administrator,  he  r^s'Is.  §9. 

4  shall  give  notice  thereof  to  the  creditor  within  said  twenty  days.     The  fs7||52  f's 

5  appeal  shall  be  entered  at  the  return  day  next  succeeding  the  ex-piration  foo^-  si^^'  Vs"' 

6  of  said  twenty  days. 

R.  L.  142,  §  12.  1919,17.  110  Mass.  229.  197  Mass.  128. 

1  Section  13.     Upon  the  entry  of  the  appeal,  the  supposed  creditor  Proceedings 

2  shall  file  a  written  statement  of  his  claim,  setting  forth  briefly  and  dis-  usi^s^.^ ' 

3  tinctly  all  the  material  facts  necessary  in  a  declaration  for  the  same  ^^'^'^^'SS  i"' 

4  cause  of  action;    and  like  proceedings  shall  thereupon  be  had  in  the  ^j^-^^'^^ '°' 

5  pleadings,  trial  and  determination  of  the  cause  as  in  an  action  at  law;  ^''i'y^f'iii 

6  but  no  execution  shall  be  awarded  against  the  executor  or  administrator  Jlo^^/'*^' I,),''' 

7  for  a  debt  found  due  to  the  claimant.     The  final  judgment  shall  be  i97  Mass'  123! 

8  conclusive,  and  the  list  of  debts  allowed  shall  be  altered  by  the  probate 

9  court,  if  necessary,  to  conform  thereto. 

1  Section  14.     After  claiming  such  appeal,  the  parties  may  waive  it  Waiver  of 

2  and  submit  the  claim  to  arbitrators  agreed  on  by  the  parties  and  ap-  submission  to 

3  pointed  by  the  probate  court,  and  thereupon  the  appeal  shall  not  be  1784, 2.  °  ' 

4i  entered.    The  award  of  such  arbitrators,  if  accepted  by  the  court,  shall  Giilggil  ii! 
5  be  as  conclusive  as  a  judgment  at  law. 

p.  S.  137,  §  14.  R.  L.  142,  §  14.  12  Gush.  220. 

1  Section  15.     The  prevailing  party  shall  be  entitled  to  costs,  which,  Coats  on 

2  if  recovered  against  the  executor  or  administrator,  may  be  allowed  in  FL&ros, §  12. 

3  his  account.  o.  s.  99,  §  12.  p.  s.  137,  §  15.  r.  l.  142,  §  15. 

1  Section  16.     If  a  person  whose  claim  has  been  disallowed  in  whole  or  Late  entry 

2  in  part  by  the  commissioners,  or  if  the  administrator  of  the  estate  or  the  mEl^bi.' 

3  executor  of  the  will  of  the  deceased,  or  if  an  heir,  legatee,  devisee  or  §:  i:  99!  f  if. 

4  creditor  who  is  dissatisfied  with  the  allowance  of  a  claim  by  them,  omits,  r.  l.Y4''2,Vi% 

5  for  cause  other  than  his  own  neglect,  to  claim  or  prosecute  his  appeal  as  J.^J^jji^'g  §  1 

6  before  provided,  the  superior  com-t  in  any  county  may,  upon  his  petition  I'Ji'^i  19. ' 

7  filed  ^\'ithin  two  years  after  the  return  of  the  commissioners  and  within  121  Mass.  ses. 


2174  INSOLVENT   ESTATES   OP  DECEASED   PERSONS.  [ChaP.    198. 

four  years  after  the  date  of  the  administration  bond,  allow  him  upon  8 

terms  to  enter  and  prosecute  his  appeal.  9 

Sfowlnceof          SECTION  17.     The    allowance   of    such    appeal    and    the    judgment  1 

is?6^62           thereon  shall  not  affect  any  distribution  ordered  before  WTitten  notice  of  2 

r'l'gg'l  14     ^'^^  petition  or  of  the  intention  to  present  the  same  has  been  given  at  3 

P.S.137, §  17.   the  registry  of  probate  or  to  the  executor  or  administrator;   but  any  4 

'   ■      '       ■  debt  thus  proved  and  allowed  shall  be  paid  only  out  of  such  assets  as  5 

remain  in  or  come  to  the  hands  of  the  executor  or  administrator  after  6 

payment  of  the  amounts  payable  on  such  prior  decree  of  distribution.  7 

payment   OF   DIVIDENDS  TO   CREDITORS. 

£!fet1''among°'       Section  18.     After  the  expiration  of  the  time  allowed  by  section  1 

creditors  whose  twclve,  the  probatc  court  shall  make  a  decree  for  the  distribution  of  2 

claims  are  ,  ■*■  ,  ,.  .  .  ,,... 

proved.            the  estate  among  the  creditors  in  accordance  with  this  chapter.     If,  3 

R.  s.'es,  §  17.    before  making  the  decree,  the  court  has  notice  of  an  appeal  then  claimed  4 

p.'l.'i37.\\^8.   or  pending,  the  decree  may  be  suspended  until  the  determination  of  the  5 

?&ish"35o.  ^*'  appeal,  or  a  distribution  may  be  ordered  among  the  creditors  whose  6 

debts  are  allowed,  leaving  an  amount  sufficient  to  pay  to  the  claimant  7 

whose  demand  is  disputed  a  proportion  equal  to  that  of  the  other  8 

creditors.  9 

?t"8!327,^?2.        Section  19.     The  court  may  before  the  expiration  of  the  tune  al-  1 

R  L  ^i42,\^r9.  low^cl  for  claiming  appeals  order  dividends  to  be  paid  to  creditors  whose  2 

claims  have  been  allowed,  if  there  is  left  an  amount  sufficient  to  pay  3 

upon   claims  that  may  probably  be  proved  afterward  a  proportion  4 

equal  to  what  is  so  paid  to  such  creditors.    Such  amount  shall  remain  5 

unappropriated  until  the  final  dividend  is  declared,  or  until  a  distribu-  6 

tion  is  ordered.  7 

R^T68.1M:        Section  20.     If  all  the  assets  are  not  distributed  upon  the  first  1 

p.'l.'iliVao.   decree,  or  if  new  assets  come  to  the  executor  or  administrator,  the  court  2 

R.  L.  142,  §  20.  shall  make  further  decrees  for  distribution.  3 

ras°e"o7  d"^ '""^        Section  21.     If  the  deceased  was  a  member  of  a  partnership,  and  1 

G.^s^ga.Ti'"    partnership  and  individual  claims  are  proved  against  his  estate,  separate  2 

R  L^^/iVai  ^'**^  thereof  shall  be  made,  and  in  decreeing  dividends  the  court  shall  3 

lOMet.sbs.      order  the  joint  and  the  separate  estate  to  be  distributed  in  the  same  4 

127  Mass.  ill.   manner  and  among  the  same  classes  of  creditors  as  in  the  case  of  insol-  5 

vent  debtors  under  chapter  two  hundred  and  sixteen.  6 


216  Mass.  521. 


S^ckfrn^OT*         Section  22.     When  the  amount  due  a  creditor  has  been  ascertained  1 

i9i5,T5i,  §4.    ^y  ^  decree  for  distribution  under  this  chapter,  payment  of  the  same  2 

may  be  enforced  in  the  same  manner  as  is  provided  by  section  twenty-  3 

four  of  chapter  one  hundred  and  ninety-seven.  4 

TsTe'tf^refuffi-       Section  23.     If,  aftcr  the  completion  of  the  list  of  allowed  claims,  1 

ciai'msafiowed!  ^^^  asscts  prove  sufficicut  to  pay  all  such  claims,  the  executor  or  ad-  2 

fsslS'sg™"'     ministrator  shall  pay  them  in  full;   and  if  any  other  debt  is  afterward  3 

R^s.'es,  §§21,  recovered  against  him,  he  shall  be  liable  therefor  only  to  the  extent  of  4 

g"'s.99,  §§22,  the  assets  then  remaining.    If  there  are  two  or  more  such  creditors,  the  5 

p.  s.  137,  §§  22,  assets,  if  insufficient  to  pay  their  demands  in  full,  shall  be  divided  among  6 

R.L.  142,  §  22.  them  pro  rata.                  120  Mass.  516.                 139  Mass.  360.                 17S  Mass.  125.  7 


Ch.\P.    198.]  INSOLVENT   ESTATES   OF  DECEASED   PERSONS.  2175 

1  Section  24.     The  executor  or  administrator,  in  an  action  brought  Proceedings 

2  against  him  on  such  demand,  may  prove  the  amount  of  assets  in  his  claims. 

3  hands,  and  thereupon  judgment  shall  be  rendered  in  the  usual  form;  r. s.'es,  §23. 

4  but  execution  shall  not  issue  for  more  than  the  amount  of  such  assets;  P.I.137V24. 

5  and  if  there  are  two  or  more  judgments,  the  court  shall  apportion  the  ^-  ^-  ^*^-  ^  -^• 

6  amount  among  them. 

1  Section  25.     After  twenty  years  from  the  decree  of  distribution  of  unXimed"  °^ 

2  an  insolvent  estate,  the  probate  com-t,  upon  application  by  a  creditor  j^'f ""fl  5  j 

3  whose  claim  was  allowed,  and  after  notice  of  such  application  pub-  p|'^|a\^L 

4  lished  in  one  or  more  newspapers  of  the  county  for  not  less  than  two  r'.  l.  142,  §"24. 

5  years  on  such  days  as  the  court  shall  direct,  may  order  any  unclaimed 

6  dividends,  with  the  interest  received  thereon,  after  deducting  all  ex- 

7  penses  and  charges  of  administration  since  the  decree  of  distribution, 

8  to  be  distributed  anew  among  the  creditors  who  have  received  their 

9  dividends.     If  there  is  a  surplus  after  satisfying  the  claims  of  such 

10  creditors  with  interest,  it  shall  be  distributed  to  the  persons  legally 

11  entitled  thereto. 

1  Section  26.     If  a  creditor  who  has  failed  to  receive  his  dividend  as  same  subject. 

2  aforesaid  has  died,  the  probate  court  for  the  county  where  adminis-  G.s.'gg.  §28.' 

3  tration  on  his  estate  might  have  been  granted  shall,  at  any  time  before  r.l.^^w.VIs. 

4  a  decree  to  distribute  the  unclaimed  dividends  is  passed,  grant  ad- 

5  ministration  upon  his  estate,  although  more  than  twenty  years  may 

6  have  elapsed  since  his  death,  and  the  administrator  may  receive  and 

7  administer  such  dividend. 

1  Section  27.    If  an   executor  or  administrator  neglects   to  render  Removal  of 

2  and  settle  his  accounts  in  the  probate  court  within  six  months  after  the  neglecting  to" 

3  final  determination  of  the  claims  of  creditors  of  an  insolvent  estate,  or  i794"5,' 

4  within  such  further  time  as  the  court  may  allow,  and  thereby  delays  a  §;  |;  99;  |  i|; 

5  decree  of  distribution,  such  neglect  shall  be  unfaithful  administration  S-  'i-  ^fjx  i^L 

'  o  R.  L.  142,  §26. 

0  and  he  may  be  removed.  3  Met.  loo.  129  Mass.  226. 

contingent  claims. 

1  Section  28.     If,  at  the  ex-piration  of  the  time  allowed  for  the  proof  Sa.w^""* 

2  of  claims,  a  person  is  liable  as  a  surety  for  the  deceased,  or  has  a  con-  jf^g'efs  5 

3  tingent  claim  against  his  estate  which  could  not  have  been  proved  as  a  pfify  5  2s 

4  debt  within  said  time,  the  court  upon  proof  thereof  shall,  in  ordering  a  R.  l-  142,  §  27. 

5  dividend,  leave  an  amount  sufficient  to  pay  to  such  contingent  creditor  le  Gray,  sia. 

6  a  proportion  equal  to  what  is  then  to  be  paid  to  the  other  creditors.  123  Mass.  4S9. 

1  Section  29.     If  such  contingent  debt  becomes  absolute  within  four  Same  subject. 

•     •  •     •  1S21   72 

2  years  after  the  time  of  the  giving  of  the  executor's  or  administrator's  r. s.'es.fe. 

3  bond,  it  may  be  proved  before  the  probate  court,  before  the  commis-  p.'  s.'  137.  §  29. 

4  sioners  already  appointed,  or  before  others  to  be  appointed  therefor.         ^'  ^'  ^^"'  ^  ~^' 

1  Section  30.     Upon  the  allowance  of  such  claim  the  creditor  shall  be  same  subject. 

2  entitled  to  a  dividend  thereon  equal  to  what  has  been  paid  to  the  other  r.  s.'es'i  7. 

3  creditors,  so  far  as  the  same  can  be  paid  without  disturbing  the  former  p.' |;  137,  §30. 

4  dividend ;   and  if  the  claim  is  not  finally  established,  or  if  the  dividend  ^-  ^-  ^*^'  *  ^^• 

5  upon  it  does  not  exhaust  the  assets,  the  residue  shall  be  divided  among 

6  all  creditors  wliose  claims  have  been  allowed.    Any  surplus  after  satisfy- 


2176  SETTLEMENT  OF  ESTATES  OF  DECEASED  NON-RESIDENTS.      [ClLAP.    199. 

ing  the  claims  of  such  creditors,  with  interest,  shall  be  distributed  to  the  7 

persons  legally  entitled  thereto.  8 

ACTIONS   BY   CREDITORS   PENDING   INSOLVENCY  PROCEEDINGS. 

^ainstan            SECTION  31.     Exccpt  Es  provided  in  the  following  section,  no  action  1 

executor,  etc.,    shall  be  maintained  against  an  executor  or  administrator  after  an  estate  2 

alter  repre-  i-i  ,  i.  ,*  -it 

sentation  of       has  bccu  represented  insolvent,  unless  for  a  clann  entitled  to  a  prefer-  3 

msolvcncv 

1696, 8,  §i.       ence  which  would  not  be  affected  by  the  insolvency  of  the  estate  or  4 

R.  s.'es,  §  19.    unless  the  assets  prove  more  than  sufficient  to  pay  all  the  debts  allowed.  5 

p.'s.'i37,  §3i.   If  the  estate  is  represented  insolvent  while  an  action  is  pending  for  a  6 

?Mai*502.^°'  claim  which  is  not  entitled  to  such  preference,  the  action  may  be  discon-  7 

iMer'333°'      tinned  without  costs;    or,  if  it  is  disputed,  it  may  be  tried  and  deter-  8 

120  m"^^'  516'   ™iri6d  and  judgment  rendered  thereon  in  the  same  manner  and  with  the  9 

142  Mass!  227!   Same  effect  as  is  provided  in  the  case  of  an  appeal  from  the  allowance  or  10 

184  Mass. 634!   disallowaucc  of  the  claim  of  a  creditor;  or  it  may  be  continued  without  11 

212  Mass!  til   costs  uutil  it  appears  whether  the  estate  is  insolvent,  and,  if  it  is  not  in-  12 

214  Mass.  549.    sQi^-pnt,  the  plaintiff  may  prosecute  the  action  as  if  no  such  representa-  13 

tion  had  been  made.  14 

briJJging'^such         SECTION  32.     If  it  is  not  ascertained  at  the  end  of  nine  months  after  1 

i833°i89          the  granting  of  letters  testamentary  or  of  administration  whether  an  2 

G'i'gg'  i  25'    estate  represented  as  insolvent  is  or  is  not  so  in  fact,  any  creditor  whose  3 

p.  s.  isi  5  32.   claim  has  not  been  presented  for  proof  may  commence  an  action  there-  4 

lie  Mass.' 447. '  for  against  the  executor  or  administrator,  and  such  action  may  be  con-  5 

tinned  without  costs  for  the  defendant  until  it  appears  whether  the  6 

estate  is  insolvent;    and  if  it  is  not  insolvent,  the  plaintiff  may  prose-  7 

cute  the  action  as  if  no  such  representation  had  been  made.  8 

whe'ifi'udgment       SECTION  33.     If  judgment  has  been  rendered  against  an  estate  which  1 

re^nd^red          ^^s  bccn  represented  insolvent,  and  a  certified  copy  from  the  probate  2 

solvent  estate     court,  showiug  such  representation,  has  been  filed  in  the  clerk's  office  3 

i8«),  253.         of  the  court  in  which  the  judgment  was  rendered,  no  execution  shall  4 

R.  L.  142,  §  32.  be  issued  on  such  judgment;   but  such  judgment  may  be  presented  for  5 

221  Mass!  587!   allowancc  in  the  same  manner  as  other  claims  of  creditors,  and  other-  6 

wise  the  proceedings  relative  to  such  judgment  shall  be  the  same  as  7 

those  relative  to  judgments  rendered  on  appeal  under  section  thirteen.  8 

REFERENCES. 

Compensation  of  commissioners,  Chap.  21.5,  §  39  and  Chap.  262,  §  31. 

Power  of  court  to  revoke  appointment,  Chap.  21.5,  §  3.5. 

Appeals  where  the  court  itself  examines  claims,  Chap.  215. 

Insolvent  estates  of  deceased  non-residents.  Chap.  199. 

Effect  of  the  discovery  of  new  assets.  Chap.  197,  §  11. 

§  1.     Claims  against  officer  for  property  taken  or  attached,  Chap.  228,  §  2. 


CHAPTER     199. 

SETTLEMENT  OF  ESTATES  OF  DECEASED   NON-RESIDENTS. 


Sect. 

1.  Administration  of  estates  of  deceased 

non-residents. 

2.  Settlement  of  estates  of  deceased  non- 

residents. 


Sect. 

3.  Settlement  of  such  estates  when  insol- 

vent. 

4.  Same  subject. 

5.  Same  subject. 


Chap.  199.]    settlement  of  estates  of  deceased  non-residents.  2177 

1  Section  1.     If  administration  is  taken  in  this  commonwealth  on  the  Administration 

2  estate  of  a  person  who  was  an  inhabitant  of  any  other  state  or  country,  deceaseS^on- 

3  his  estate  found  here  shall,  after  payment  of  his  debts,  be  disposed  of  R^g.'^Ta  §  21 

4  according  to  his  last  will,  if  any;  otherwise  his  real  property  shall  descend  q^I'^qJ  .gg 

5  according  to  the  laws  of  this  commonwealth,  and  his  personal  property  pf\^^\^- 

6  shall  be  distributed  and  disposed  of  according  to  the  laws  of  the  state  9  Mass.  337.  ' 

7  or  country  of  which  he  was  an  inhabitant. 

11  Mass.  256.  3  Met.  109.  IfiS  Mass.  240.  214  Mass.  580. 

6  Pick.  481.  147  Mass.  204.  204  Mass.  394.  215  Mass.  112. 

1  Section  2.     After  the  payment  of  all  debts  for  which  such  estate  is  settlement  ot 

2  liable  in  this  commonwealth,  the  residue  of  the  personal  property  may  deceased  non- 

3  be  distributed  and  disposed  of,  as  provided  in  the  preceding  section,  by  nf s.''7a'§  22. 

4  the  probate  court;   or,  in  the  discretion  of  the  court,  it  may  be  trans-  p.f.'ias.'ll^' 

5  mitted  to  the  executor  or  administrator,  if  any,  in  the  state  or  country  J^q^.  143,  §  2. 
G  of  which  the  deceased  was  an  inhabitant,  to  be  there  disposed  of  accord-  ips  Mass.  245. 

7  ing  to  the  laws  thereof.    But  nothing  herein  shall  be  construed  to  prevent  isi  Mass!  eou 

8  the  distribution  or  transmission  of  part  of  the  personal  property  of  an  iQSMaSiisa 

9  estate  in  process  of  settlement  when  it  can  be  done  without  detriment  214  Mass!  ilol 
10  to  the  estate  or  prejudice  to  the  creditors.  225  Mass.  335. 

1  Section  3.     If  such  person  dies  insolvent,  his  estate  found  in  this  Settlement  of 

2  commonwealth  shall,  as  far  as  practicable,  be  so  disposed  of  that  all  ™henTnsofvent. 

3  his  creditors  here  and  elsewhere  may  receive  equal  proportions  of  their  §!  s!  loi.^Mo. 

4  respective  debts. 

p.  S.  138,  §  3.  R,  L.  143,  §  3.  3  Picli.  128.  8  Pick.  475. 

1  Section  4.     The  estate  shall  not  be  transmitted  to  the  foreign  ex-  Same  subject. 

2  ecutor  or  administrator  until  all  the  creditors  who  are  citizens  of  this  25.^'  ™'  ^^  ^*' 

3  commonwealth  have  received  the  proportion  which  would  be  due  to  p.'l.ias.'fl.'' 

4  them  if  the  whole  estate  of  the  deceased,  wherever  found,  which  is  ^-  ^-  ^*^'  ^  *• 

5  applicable  to  the  payment  of  common  creditors  were  divided  without 

6  preference  among  all  the  creditors  in  proportion  to  their  respective 

7  debts;  and  no  creditor  not  a  citizen  of  this  commonwealth  shall  be  paid 

8  out  of  the  assets  found  here  until  all  those  who  are  such  citizens  have 

9  received  the  proportion  provided  in  the  preceding  section. 

1  Section  5.     If  there  is  a  residue  after  such  payment  to  the  citizens  Same  subject. 

2  of  this  commonwealth,  it  may  be  paid  to  any  other  creditors  who  have  §! slim, §^42. 

3  duly  proved  their  debts  here,  in  proportion  to  the  amount  due  to  each  r.  l.'hs.Vs. 

4  of  them,  but  no  one  shall  receive  more  than  would  be  due  to  him  if  the 

5  whole  estate  were  divided  ratably  among  all  the  creditors  as  before  pro- 

6  vided.    The  remainder  may  be  transmitted  to  the  foreign  executor  or 

7  administrator;   or  if  there  is  none,  it  shall,  after  the  expiration  of  four 

8  years  from  the  appointment  of  the  administrator,  be  distributed  ratably 

9  among  all  creditors,  both  citizens  and  others,  who  have  proved  their 
10  debts  in  this  commonwealth. 


2178 


SETTLEMENT  OF  ESTATES  OF  ABSENTEES. 


[CllAP.   200. 


CHAPTER    200. 

SETTLEMENT   OF  ESTATES   OF   ABSENTEES. 


Sect. 

1.  Petition  for  appointment  of  receiver. 

2.  Warrant. 

3..  Notice  may  be  issued  on  return  of  war- 
rant. 

4.  Same  subject. 

5.  Appointment  of  receiver.     Bond. 

6.  Transfer  of  property,  etc. 

7.  Possession     of     additional      property. 

Debts. 


Sect. 

8.  Intangible  property. 

9.  Management  and  sale  of  property. 

10.  Allowance  to  widow  and  children,  etc. 

11.  Arbitration  and  compromise  of  claims. 

12.  Compensation    of   receiver;    accounts; 

barring  of  suits. 
1.3.  Distribution  of  property. 
14.  Limitation  if  receiver  is  not  appointed 

within  thirteen  years. 


Petition  for 
appointment 
of  receiver. 
1894,  203. 
1897,  447.  §  1. 
R.  L.  144,  I  1. 

1902.  544,  §  14. 

1903,  241,  I  1. 
1906.224,1  1. 
186  Mass.  426. 
201  Mass.  23. 

210  Mass.  1 

211  Mass.  198. 
223  Mass.  540. 


Section  1.  If  a  person  entitled  to  or  having  an  interest  in  property  1 
within  the  jurisdiction  of  the  commonwealth  has  disappeared  or  ab-  2 
sconded  from  the  place  within  or  without  the  commonwealth  where  he  3 
was  last  known  to  be,  and  has  no  agent  in  the  commonwealth,  and  it  is  4 
not  known  where  he  is,  or  if  such  person,  having  a  wife  or  minor  child,  5 
dependent  to  any  extent  upon  him  for  support,  has  thus  disappeared  or  6 
absconded  without  making  sufficient  provision  for  such  support,  and  it  7 
is  not  known  where  he  is,  or,  if  it  is  known  that  he  is  without  tlie  com-  8 
monwealth,  any  one  who  would  under  the  law  of  the  commonwealth  9 
be  entitled  to  administer  upon  the  estate  of  such  absentee  if  he  were  10 
deceased,  or  if  no  one  is  known  to  be  so  entitled,  any  suitable  person,  or  11 
such  wife,  or  some  one  in  her  or  such  minor's  behalf,  may  file  a  petition  12 
under  oath  in  the  probate  court  for  the  county  where  any  such  prop-  13 
erty  is  situated  or  found,  stating  the  name,  age,  occupation  and  last  14 
known  residence  or  address  of  such  absentee,  the  date  and  circumstances  15 
of  the  disappearance  or  absconding,  and  the  names  and  residence  of  16 
other  persons,  whether  members  of  such  absentee's  family  or  otherwise,  17 
of  whom  inquiry  may  be  made,  and  containing  a  schedule  of  the  property,  18 
real  and  personal,  so  far  as  known,  and  its  location  within  the  common-  19 
wealth,  and  praj'ing  that  such  property  may  be  taken  possession  of  and  20 
a  receiver  thereof  appointed  under  this  chapter.  21 


Warrant. 
1897,  447,  §  1. 
R.  L.  144,  §  2. 


Section  2.  The  court  may  thereupon  issue  a  warrant  directed  to  1 
the  sheriff  or  his  deputy,  which  may  run  throughout  the  commonwealth,  2 
commanding  him  to  take  possession  of  the  property  named  in  said  3 
schedule  and  hold  it  subject  to  the  order  of  the  court  and  make  return  4 
of  said  warrant  as  soon  as  may  be  with  his  doings  thereon  with  a  schedule  5 
of  the  property  so  taken.  The  officer  shall  post  a  copy  of  the  warrant  6 
upon  each  parcel  of  land  named  in  the  schedule  and  cause  so  much  of  7 
the  warrant  as  relates  to  land  to  be  recorded  in  the  registry  of  deeds  8 
for  the  county  and  district  where  the  land  is  located.  He  shall  receive  9 
such  fees  for  serving  the  warrant  as  the  court  allows,  but  not  more  than  10 
those  established  by  law  for  similar  service  upon  a  writ  of  attachment.  11 
If  the  petition  is  dismissed,  said  fees  and  the  cost  of  publishing  and  12 
serving  the  notice  hereinafter  provided  shall  be  paid  by  the  petitioner;  13 
if  a  receiver  is  appointed,  they  shall  be  paid  by  the  receiver  and  allowed  14 
in  his  account.  15 


Chap.  200.]  settlement  of  estates  of  absentees.  2179 

1  Section  3.     Upon  the  return  of  such  warrant,  the  court  may  issue  a  Notice  may  be 

2  notice  reciting  the  substance  of  the  petition,  warrant  and  officer's  return,  turo^f'^aTrant. 

3  which  shall  be  addressed  to  such  absentee  and  to  all  persons  who  claim  J^^l.  illi  1 3' 

4  an  interest  in  said  property,  and  to  all  whom  it  may  concern,  citing  Jgof'llMs^ 

5  them  to  appear  at  a  time  and  place  named  and  show  cause  why  a  re- 

6  ceiver  of  the  property  named  in  the  officer's  schedule  should  not  be 

7  appointed  and  said  property  held  and  disposed  of  under  this  chapter. 

1  Section  4.     The  return  day  of  said  notice  shall  be  not  less  than  Same  subject. 

2  thirty  nor  more  than  sixty  days  after  its  date.    The  coiu-t  shall  order  Il^l!  i1a'.  1 1'. 

3  said  notice  to  be  published  once  in  each  of  three  successive  weeks  in  1903;  241.' 1 3.^' 

4  one  or  more  newspapers  within  the  commonwealth,  and  to  be  posted  in  }g°|'  ^fj  ^  ^' 

5  two  or  more  conspicuous  places  in  the  town  within  the  commonwealth  L^,^^-. 

6  where  the  absentee  last  resided  or  was  known  to  have  been  either  1020!  2! 

7  temporarily  or  permanently  and  upon  each  parcel  of  land  named  in  the  -    ^  *™-    • 

8  officer's  schedule,  and  a  copy  to  be  mailed  to  the  last  known  address 

9  of  such  absentee.     The  court  may  order  other  and  further  notice  to  be 
10  given  within  or  without  the  commonwealth. 

1  Section  5.     The  absentee  or  any  person  who  claims  an  interest  in  Appointment 

2  any  of  the  property  may  appear  and  show  cause  why  the  prayer  of  the  Bomif"'*'^' 

3  petition  should  not  be  granted.    The  court  may  after  hearing  dismiss  §§^','2^''' 

4  the  petition  and  order  the  property  in  possession  of  the  officer  to  be  fgji-  \\\- 1  ^^ 

5  returned  to  the  person  entitled  thereto,  or  it  may  appoint  a  receiver  i^o^,  241.  §  3. 

6  of  the  property  which  is  in  the  possession  of  the  officer  and  named  in  his 

7  schedule.    If  a  receiver  is  appointed  the  court  shall  find  and  record  the 

8  date  of  the  disappearance  or  absconding  of  the  absentee;   and  such  re- 

9  ceiver  shall  give  bond  to  the  judge  of  probate  and  his  successors  in  office 

10  in  such  sum  and  with  such  condition  as  the  court  orders,  with  a  company 

11  named  in  section  one  hundred  and  five  of  chapter  one  hundred  and 

12  seventy-five  and  approved  by  the  court  as  surety  thereon. 

1  Section  6.     After  the  approval  of  such  bond  the  court  may  order  Transfer  of 

2  the  sheriff  or  his  deputy  to  transfer  and  deliver  to  such  receiver  the  ^^.°l"i44,*§  6. 

3  possession  of  the  property  under  the  aforesaid  warrant,  and  the  receiver 

4  shall  file  in  the  registry  of  probate  a  schedule  of  the  property  received 

5  by  him. 

1  Section  7.     Such  receiver  upon  petition  filed  by  him  may  be  author-  Possession  of 

2  ized  and  directed  to  take  possession  of  any  additional  property  within  property. 

3  the  commonwealth  which  belongs  to  such  absentee  and  to  demand  and  r''l*.^44.  §  7. 

4  collect  all  debts  due  such  absentee  from  any  person  within  the  common-  Jgosjlli.'ls^ 

5  wealth,  and  hold  the  same  as  if  it  had  been  transferred  and  delivered  to 

6  him  by  the  officer. 

1  Section  8.     If  such  absentee  has  left  no  corporeal  property  within  intangible 

2  the  commonwealth,  but  there  are  debts  and  obligations  due  or  owing  to  i906r224,  §  i. 

3  him  from  persons  within  the  commonwealth,  a  petition  may  be  filed  as 

4  provided  in  section  one,  stating  the  nature  and  amount  of  such  debts 

5  and  obligations,  so  far  as  known,  and  praying  that  a  receiver  thereof 

6  may  be  appointed.    The  court  may  thereupon  issue  a  notice  as  above 

7  provided,  without  issuing  a  warrant,  and  may,  upon  the  return  of  said 

8  notice  and  after  a  hearing,  dismiss  the  petition  or  appoint  a  receiver  and 


2180 


SETTLEMENT  OF  ESTATES  OF  ABSENTEES. 


[Chap.  200. 


authorize  and  direct  him  to  demand  and  collect  the  debts  and  obliga-  9 

tions  specified  in  said  petition.     The  receiver  shall  give  bond  as  pro-  10 

vided  in  section  five,  and  shall  hold  the  proceeds  of  such  debts  and  11 

obligations  and  all  property  received  by  him,  and  distribute  the  same  12 

as  hereinafter  provided.    He  may  be  further  authorized  and  directed  as  13 

provided  in  the  preceding  section.  14 


Management 
and  sale  of 
propertv. 
1897,447,  §  3. 
R.  L.  114,  §  8. 

1902,  544.  §  19. 

1903,  241,  §  3. 


Section  9.    The  court  may  make  orders  for  the  care,  custody,  leasing  1 

and  investing  of  all  property  and  its  proceeds  in  the  possession  of  the  2 

receiver.    If  any  of  said  property  consists  of  live  animals  or  is  perishable  3 

or  cannot  be  kept  without  great  or  disproportionate  expense,  the  court  4 

may,  after  the  return  of  the  warrant,  order  such  property  to  be  sold  at  5 

public  or  private  sale.    After  the  appointment  of  a  receiver,  upon  his  6 

petition  and  after  notice,  the  court  may  order  all  or  part  of  said  property,  7 

including  the  rights  of  the  absentee  in  land,  to  be  sold  at  public  or  pri-  8 

vate  sale  to  supply  money  for  payments  authorized  by  this  chapter  or  9 

for  reinvestment  approved  by  the  court.  10 


Allowance  to 

widow  and 
children,  etc. 
1897,  447,  §  3. 
R.  L.  144,  §9, 
1906,  175. 
192  Mass.  3S7. 
196  Mass.  509. 


Section  10.  The  court  may  order  said  property  or  its  proceeds 
acquired  by  mortgage,  lease  or  sale  to  be  applied  in  payment  of  charges 
incurred  or  that  may  be  incurred  in  the  support  and  maintenance  of 
the  absentee's  wife  and  minor  children,  and  to  the  discharge  of  such 
debts  and  claims  for  alimony  as  may  be  proved  against  said  absentee. 


and  compromise      SECTION  11.     The  court  may  authorize  the  receiver  to  adjust  by     1 

i909?ri5.         arbitration  or  compromise  any  demand  in  favor  of  or  against  the  estate    2 

of  such  absentee.  3 


Compensation 
of  receiver; 
accounts:  bar- 
ring of  suits. 
1897,  447,  §  6. 
R.  L.  144,  §  10. 
197  Mass.  279. 
223  Mass.  540. 
222  U.  S.  1. 


Section  12.  The  receiver  shall  be  allowed  such  compensation  and  1 
disbursements  as  the  court  orders,  to  be  paid  out  of  said  property  or  pro-  2 
ceeds.  If  within  fourteen  years  after  the  date  of  the  disappearance  and  3 
absconding  as  found  and  recorded  by  the  court,  such  absentee  appears,  4 
or  an  administrator,  executor,  assignee  in  insolvency  or  trustee  in  bank-  5 
ruptcy  of  said  absentee  is  appointed,  such  receiver  shall  account  for,  6 
deliver  and  pay  over  to  him  the  remainder  of  said  property.  If  said  7 
absentee  does  not  appear  and  claim  said  property  within  said  fourteen  8 
years,  all  his  right,  title  and  interest  in  said  property,  real  or  personal,  9 
or  the  proceeds  thereof  shall  cease,  and  no  action  shall  be  brought  by  10 
him  on  account  thereof.  11 


Distribution 
of  property. 
1897,  447, 
§§4,5. 

R.  L.  144,  §  11. 
1903,  241,  §  2. 
197  Mass.  279. 
223  Mass.  540. 
222  U.  S.  1. 


Section  13.     If  at  the  expiration  of  said  fourteen  years  said  property  1 

has  not  been  accounted  for,  delivered  or  paid  over  under  the  preceding  2 

section,  the  court  shall  order  the  distribution  of  the  remainder  to  the  3 

persons  to  whom,  and  in  the  shares  and  proportions  in  which,  it  would  4 

have  been  distributed  if  said  absentee  had  died  intestate  within  the  5 

commonwealth  on  the  day  fourteen  years  after  the  date  of  the  dis-  6 

appearance  or  absconding  as  found  and  recorded  by  the  court.  7 


J'e^fycri^Mt        Section  14.     If  such  receiver  is  not  appointed  within  thirteen  years  1 

wu^un  thirteen  ^^t^^  ^hc  date  fouud  by  the  court  under  section  five,  the  time  limited  2 

FfTi44  5 1''  ^°^  accounting  for,  or  fixed  for  distributing,  said  property  or  its  proceeds,  3 

1902, 644,'  §  20.  or  for  barring  actions  relative  thereto,  shall  be  one  vear  after  the  date  4 

1904  206  §  2  •  • 

of  the  appointment  of  the  receiver  instead  of  the  foiu-teen  years  pro-  5 

vided  in  the  two  preceding  sections.  6 


Chap.  201.] 


GUARDIANS  AND   CONSERVATORS. 


2181 


CHAPTER    201 


GUARDIANS  AND  CONSERVATORS. 


Sect. 

jxrnisDicTioN. 

1.  Jurisdiction  of  probate  court. 

GUARDIANS    OF    MIN0K8. 

2.  Appointment. 

3.  Testamentary  guardian. 

4.  Powers. 

5.  Custody    and    education    of    minors. 

Effect  of  marriage. 

GUARDIANS        OF        INSANE        PERSONS        AND 
SPENDTHRIFTS. 

6.  Appointment    of    guardian    of    insane 

person. 

7.  Notice. 

8.  Appointment    of    guardian    of    spend- 

thrift. 

9.  Notice. 

10.  Effect  on  contracts,  etc.,  of  recording 

petition. 

11.  Certain   property   of  spendthrift  may 

be  transferred  to  wife,  etc. 

12.  Powers  and  bond  of  guardian  of  insane 

person  or  spendtlirift. 

13.  Termination  of  guardianship. 

TEMPORARY   GUARDIANS. 

14.  Appointment,  removal  and  discharge. 

15.  Powers  and  duties. 

CONSERVATORS. 

16.  Appointment. 

17.  Notice. 

18.  Discharge. 

19.  Bond. 

20.  Powers. 

21.  Temporary  conservator. 

22.  Allowance  for  defence. 

GUARDIANS     AND     CONSERVATORS     OF     MAR- 
RIED   WOMEN. 

Appointment. 

Guardian  not  to  have  custody,  etc.,  of 

ward,  except,  etc. 
Guardian,  etc.,  not  to  apply  property 

to    her    support    without    leave    of 

probate  court. 
26.  Guardian   for   insane   married   woman 

having  right  of  dower,  etc. 


23. 

24. 


25. 


Sect. 

guardians   and   conservators   of   non- 
residents. 

27.  Appointment. 

28.  Powers  and  duties. 

29.  Bond. 

30.  Proceedings  for  non-resident  guardian 

of  non-resident  ward  to  receive  ward's 

estate  here. 
Guardian,    etc.,    appointed    here    may 

transfer  property  to  foreign  guardian, 

etc. 
Transfer  of  estate  of  ward  who  has  no 

guardian,  etc.,  in  the  commonwealth. 


31 


32 


REMOVALS,    RESIGNATIONS,    ETC. 

33.  Rgfloval,  etc.,  of  guardian,  etc.,  and 

appointment  of  successor. 

GUARDIAN   AD    LITEM    AND    NEXT    FRIEND. 

34.  Appointment.     Effect. 

35.  Expenses. 

36.  Provisions  of  this  chapter  not  to  pre- 

vent  appointment    of    guardian    ad 
litem  or  next  friend. 

GENERAL    POWERS    AND     DUTIES    OF    GUARD- 
IANS   AND    CONSERVATORS. 

37.  To  pay  debts,  etc.,  and  represent  ward 

in  suits. 

38.  Support  of  ward  and  familj'. 

39.  Partition. 

40.  Support  of  minor  child  by  parents. 

41.  Application  of  minor's  property  to  his 

support  during  father's  life. 

42.  Support  of  children  of  insane  person 

under  guardianship. 

43.  Support  of  wife  of  insane  person  under 

guardianship. 

44.  Purchase  of  release  of  dower,  etc.,  in 

ward's  real  property. 

45.  Election,  waiver,  or  exercise  of  power 

by  guardian,  etc. 

46.  Appraisal  of  estate. 

47.  Sale  of  personal  property  of  ward. 

48.  Recovery  of  property  of  ward  which 

has  been  embezzled,  etc. 

AGENTS    OF    NON-RESIDENT    GUARDIANS    AND 
CONSERVATORS. 

49.  Agent    for    non-resident    guardian    or 

conservator. 


JURISDICTION. 


1  Section  1.    The  probate  court  may,  if  it  appears  necessary  or  con-  jurisdiction  of 

2  venient,  appoint  guardians  of  minors,  insane  persons  and  spendthrifts  ^°uh  §T^'' 

3  and  conservators  of  the  property  of  persons  by  reason  of  advanced  age  \jj^f  ^'  ^  ^' 


2182 


GUARDIANS   AND   CONSERVATORS. 


[Chap.  201. 


1783,  38.  I  1. 
1817,  190,  §  1. 
R.  S.  79,  5  1. 
G.  S.  109,  §  1. 
P.  S.  139.  §  1. 


or  mental  weakness  unable  to  properly  care  for  their  property,  who  are  4 
inhabitants  of  or  residents  in  the  county  or  who  reside  out  of  the  com-  5 
monwealth  and  have  estate  within  the  county.  i898. 527.  §  1.  6 


1901,  125,  §  1. 

R.  L.  145.  §§  1.  40. 

1903,  96. 


1905,  127. 
1907,  169,  §  3. 
5  Pick.  370. 


128  Mass.  687. 
219  Mass.  178. 
221  Mass.  178,  315. 


Appointment. 
1752-3,  12, 
5§  6,  7. 
1783,  38,  §  1. 
R.  S.  79.  §§2,3. 
1837,  171,  §  2. 
G.  S.  108,  §  16; 
109,  §§2,  3. 
P.  S.  139. 
§§  2,3.  13. 
1899,  178,  §  2. 
R.  L.  145, 
l§2,  3,  12. 

1918,  257, 
§394. 

1919,  5. 

1920,  2. 

154  Mass.  378. 


guardians  of  minors. 

Section  2.  If  a  minor  is  under  fourteen  the  probate  court  may  nomi-  1 
nate  and  appoint  his  guardian.  If  he  is  above  that  age  he  may  nominate  2 
his  own  guardian,  who,  if  approved  by  the  court,  shall  be  appointed  3 
accordingly.  Such  nomination  may  be  made  before  a  justice  of  the  4 
peace,  notary  public,  special  commissioner  or  city  or  town  clerk  within  5 
the  commonwealth  who  shall  certify  the  fact  to  the  probate  court.  If  the  6 
person  nominated  is  not  approved  by  the  court,  or  if  the  minor  resides  7 
out  of  the  commonwealth,  or  if  the  minor  after  being  cited  neglects  to  8 
nominate  a  suitable  person,  the  court  may  nominate  and  appoint  his  9 
guardian  in  the  same  manner  as  if  he  were  under  fourteen.  If  the  minor  10 
is  a  married  woman  no  guardian  shall  be  appointed  without  such  notice  11 
to  her  husband  as  the  court  may  order.  12 


Testamentary 
guardian. 
R.  .S.  79,  §  6. 
G.  S.  109,  §  S. 
1877,  128. 
P.  S.  139,  §  5. 
1898,  138. 
R.  L.  145,  §  5. 

8  Met.  127. 

9  Allen,  618. 


Section  .3.     A  father,  or,  if  he  has  died  without  exercising  the  power,  1 

a  mother  may  by  will  appoint,  subject  to  the  approval  of  the  probate  2 

court,  a  guardian  for  a  minor  child,  whether  born  at  the  time  of  making  3 

the  will  or  afterward,  to  continue  during  minority  or  for  a  less  time.    Such  4 

testamentary  guardian  shall  have  the  same  powers  and  perform  the  5 

same  duties,  relative  to  the  person  and  estate  of  the  ward,  as  a  guardian  6 

appointed  by  the  probate  court.  7 


Powers. 
C.  L.  211,  5  4. 
R.  S.  79.  §  4. 
G.S.  109,  §  4. 
P.  S.  139,  §4, 


Section  4.     The  guardian  of  a  minor  unless  sooner  discharged  accord-  1 

ing  to  law  shall  continue  in  office  until  the  minor  reaches  twenty-one,  2 

and  shall  have  the  care  and  management  of  all  his  estate.  3 

R.  L.  145.  §  4.  1902,  474.  1904,  163. 


Custody  and 
education  of 
minors.    Effect 
of  marriage. 
C.L.  211,  §4. 
R.  S.  79, 
IS  4,  23. 
G.  S.  109, 
§§  4,  26. 
1871,  116. 
1873,  367. 
1880,  66. 
P.  S.  139, 
5§4,41. 
R.  L.  145, 
§§  4,  37. 
1902,  474. 
1904,  163. 
15  Gray,  445. 
216  Mass.  71. 
219  Mass.  178. 
221  Mass.  108. 
227  Mass.  77. 


Section  5.     The  guardian  of  a  minor  shall  have  the  custody  of  his  1 

person  and  the  care  of  his  education,  except  that  the  parents  of  the  2 

minor,  jointly,  or  the  surviving  parent  shall  have  such  custody  and  said  3 

care  unless  the  court  otherwise  orders.    The  probate  court  may,  upon  4 

the  written  consent  of  the  parents  or  surviving  parent,  order  that  the  5 

guardian  shall  have  such  custody;  and  may  so  order  if,  upon  a  hearing  6 

and  after  such  notice  to  the  parents  or  surviving  parent  as  it  may  order,  7 

it  finds  such  parents,  jointly,  or  the  surviving  parent,  unfit  to  have  such  8 

custody;   or  if  it  finds  one  of  them  unfit  therefor  and  the  other  files  in  9 

court  his  or  her  written  consent  to  such  order.    The  marriage  of  a  female  10 

under  guardianship  as  a  minor  shall  deprive  her  guardian  of  all  right  to  11 

her  custody  and  education,  but  not  of  the  care  and  possession  of  her  12 

property.    If  a  corporation  is  appointed  guardian  of  a  minor,  the  court  13 

may,  subject  to  the  right  of  his  parents,  or  of  the  husband  of  a  female  14 

minor,  as  provided  in  this  section,  award  the  custody  to  some  suitable  15 

16 


person. 


guardians  of  insane  persons  and  spendthrifts. 


Section  6.     Two  or  more  relatives  or  friends  of  an  insane  person,  or 


Appointment  of 

guardian  of  .11  e  '    '  l,'    \ 

waS^^m°°'    ^^^  mayor  and  aldermen  of  a  city  or  the  selectmen  ot  a  town  in  which 
172G-7;  i2;  §  1.  he  is  an  inhabitant  or  resident,  or  the  department  of  mental  diseases,     3 


Chap.  201.]  guakdlins  m^d  conservators.  2183 

4  may  file  a  petition  in  tlie  probate  court  asking  to  have  a  guardian  ap-  1731-2, 14,  §  1. 

5  pointed  for  him;   and  if  after  notice  as  provided  in  the  following  section  1783738,  §  2. ' 

6  and  a  hearing  the  court  finds  that  he  is  incapable  of  taking  care  of  himself,  §:  i;  io9,W 

7  it  shall  appoint  a  guardian  of  his  person  and  estate.    A  copy  of  such  ap-  r  L.'/j'g  ^g 

8  pointment  shall  be  sent  bv  mail  bv  the  register  to  the  said  department.  J^o^.  ib9,  §  1. 

9  The  court  may  require  additional  medical  testimony  as  to  the  mental  §§  99. 107. 

10  condition  of  the  person  alleged  to  be  insane  and  may  require  him  to  submit  s  Mass.  129.  ' 

1 1  to  examination.    It  may  also  appoint  one  or  more  physicians,  expert  in  \z  ulll'.  222! 

12  insanity,  to  examine  such  person  and  report  their  conclusions  to  the  7  Met.  lis. 

13  court.    Reasonable  expense  incurred  in  such  examination  shall  be  paid  jo2™i'a^^i4 

14  out  of  the  estate  of  such  person  or  by  the  county  as  may  be  determined  by  232  kasa.  sob. 

15  the  court. 

1  Section  7.     Upon  such  petition  the  court  shall  cause  not  less  than  Notice. 

2  seven  days'  notice  of  the  time  and  place  appointed  for  the  hearing  to  be  g^  s!  los.  §  ie; 

3  given  to  the  alleged  insane  person  and  to  the  department  of  mental  dis-  p^s.^fg. 

4  eases,  except  that  the  court  may,  for  cause  shown,  direct  that  a  shorter  ^  J^  ^^^. 

5  notice  be  given.    No  appointment  shall  be  made  without  such  notice  to  5|6. 1^2.^     ^ 

6  the  heirs  apparent  or  presumptive  of  the  alleged  insane  person,  includ-  1909',  504^ 


7  ing  the  husband  or  wife,  if  any,  as  the  court  may  order.       i9ii,  206,  §  1. 

1916,285,5  1.  24  Pick.  115.  4  Grav,  03.  154  Mass.  378. 

5  Picli.  490.  7  Met.  388.  102  Mass.  14.  224  Mass.  145. 


99,  107 


1  Section  8.     A  person  who,  by  excessive  drinking,  gaming,  idleness.  Appointment 

2  or  debauchery  of  any  kind,  so  spends,  wastes  or  lessens  his  estate  as  to  spemfthrift. " 

3  expose  himself  or  his  family  to  want  or  suffering,  or  any  town  to  charge  r  *|'  ||'  ^  ^' 

4  or  expense  for  his  support  or  for  the  support  of  his  family,  may  be  f|4g''2\| 

5  adjudged  a  spendthrift.    The  overseers  of  the  poor  of  the  town  of  which  pfjol'll- 

6  he  is  an  inhabitant  or  resident,  or  upon  which  he  is  or  may  become  i897, 173. 

7  chargeable,  or  a  relative  of  the  alleged  spendthrift,  may  file  a  petition  1907]  109!  §  2! 

8  in  the  probate  court,  stating  the  facts  and  circumstances  of  the  case  12  p'icit^iM. 

9  and  praying  that  a  guardian  be  appointed.    In  towns  where  selectmen  ^^^  *^"^-  '''^• 

10  act  as  overseers  of  the  poor  they  may  file  such  petition.    If  after  notice 

11  as  provided  in  the  following  section,  and  after  hearing,  the  court  finds 

12  that  he  is  a  spendthrift,  it  shall  appoint  a  guardian  of  his  person  and 

13  estate. 

1  Section  9.     Upon  such  petition  the  court  shall  cause  not  less  than  Notice. 

2  seven  days'  notice  of  the  time  and  place  appointed  for  the  hearing  to  r.  s.'79,§i2. 

3  be  given  to  the  alleged  spendthrift,  except  that  the  court  may,  for  cause  fcig^'g.*'  ^ '®' 

4  shown,  direct  that  a  shorter  notice  be  given.    If  the  alleged  spendthrift  Y:^ \^- 

5  is  a  married  woman,  no  guardian  shall  be  appointed  without  such  notice  iso^'.  173. 

6  to  her  husband  as  the  court  may  order.         1907,  i69,  §  2.       12  Pick,  152.  §§'7.12.' 

1  Section  10.     A  copy  of  the  petition,  with  the  order  of  notice  thereon.  Effect  on  con- 

2  may  be  recorded  in  the  registry  of  deeds  for  the  county  and  district  rera'ding  '  °' 

3  where  any  land  of  the  alleged  spendthrift  is  located ;  and  if  a  guardian  f^ls' 33  5  7 

4  is  appointed  upon  such  petition,  all  contracts,  except  for  necessaries  or  Jfl?'fo- ,  , 

-,.  ,,  111*!.  1  [»  (•  I  lo2b,  b3,  8  1. 

5  relative  to  land,  and  all  guts,  sales  or  transfers  of  personal  property  R-  s.  79,  §  13. 

6  made  by  the  spendthrift  after  an  order  of  notice  upon  the  petition  has  p.s.i39,'§9. ' 

7  been  issued  by  the  probate  court,  and  all  contracts  relative  to  and  sales  fo  picl'^isV*' 

8  and  conveyances  of  land  made  by  the  spendthrift  after  such  record  in  21  Pick!  se"' 

9  the  registry  of  deeds  for  the  county  and  district  where  the  land  lies,  gy^'^^'glos 
10  and  before  the  termination  of  the  guardianship,  shall  be  void.  los  Mass.  4t>. 

°  '  130  Mass.  458. 

142  Mass.  505.  147  Mass.  15.  151  Mass.  354.  221  Mass.  108. 


2184 


GUARDLtNS  AND   CONSERVATORS. 


[Chap.  201. 


Certain 
property  of 
spendthrift 
may  be  trans- 
ferred to  wife, 
etc. 
1908,  75. 


Powers  and 
bond  of  guard- 
ian of  insane 
person  or 
spendthrift. 
1783,  38, 
§§  2,  5.  7. 
R.  S.  79, 
§§  10,  16. 
G.  S.  109,  §  12. 
P.  S.  139,5  11. 


Section  11.     Any  probate  court  having  jurisdiction  of  the  property  1 

of  a  person  who  is  under  guardianship  as  a  spendthrift  may,  pn  petition  2 

of  such  ward,  and  after  such  notice  as  the  court  may  determine,  authorize  3 

the  guardian  of  tlie  ward  to  pay  or  convey  such  portion  of  the  ward's  4 

real  or  personal  estate,  either  principal  or  income,  as  the  court  may  5 

designate,  to  the  wife  or  any  child,  or  children,  or  grandchildren,  of  the  6 

ward;   and  such  property,  when  so  paid  or  conveyed,  shall  become  the  7 

property  of  the  donee  or  grantee.  8 

Section  12.     The  guardian  of  an  insane  person  or  spendthrift  shall  1 

have  the  care  and  custody  of  the  person  of  his  ward,  except  as  provided  2 

in  section  twenty-four,  and  the  management  of  all  his  estate,  and  shall  3 

give  the  bond  prescribed  in  section  one  of  chapter  two  hundred  and  five,  4 

except  that  the  conditions  relative  to  the  education  of  the  ward  shall  be  5 

omitted.  R.  l-  hs,  §  lo.  6 


5  Mass.  427. 
5  Pick.  20. 


106  Mass.  501. 
149  aiass.  57. 


155  Mass.  136. 
162  Mass.  582. 


Termination  of 
guardianship. 
R.  S.  79,  §  23. 
G.  S.  109,  §  26. 
P.  S.  139.  §  12. 
R.  L.  145,  §  11. 
1909,  504, 
§  101. 
1916,  285,  §  1. 


Section  13.     The  guardian  of  an  insane  person  or  spendthrift  may  1 

be  discharged  by  the  probate  court,  upon  the  application  of  the  ward  or  2 

otherwise,  when  it  appears  that  the  guardianship  is  no  longer  necessary;  3 

except  that  in  the  case  of  an  insane  person  seven  days'  notice  of  the  4 

petition  shall  be  given  to  the  department  of  mental  diseases.  5 


Appointment, 
removal  and 
discharge. 
1878,  230. 
P.  S.  139,  §  6. 
1897,  ]35,  §  1. 
1900,  345, 
§§1.3. 

1901,213:  523. 
R.  L.  145,  §  20; 
1909,  504, 
§§  100.  107. 
1911,206. 
1916,  2S5.  §  1. 
179  Mass.  131. 


TEMPORARY   GU.4.RDIANS. 

Section  14.     Upon  petition  of  a  mayor  or  the  selectmen,  the  over-  1 

seers  of  the  poor,  the  department  of  mental  diseases,  or  other  person  in  2 

interest,  the  court  may,  if  it  finds  that  the  welfare  of  a  minor,  insane  3 

person  or  spendthrift  requires  the  immediate  appointment  of  a  temporary  4 

guardian  of  his  person  and  estate,  appoint  a  temporary  guardian  of  such  5 

minor,  insane  person  or  spendthrift,  with  or  without  notice,  and  may  6 

in  like  manner  remove  or  discharge  him  or  terminate  the  trust.    A  tempo-  7 

rary  guardian  may  proceed  and  continue  in  the  execution  of  his  duties,  8 

notwithstanding  an  appeal  from  the  decree  appointing  him,  until  it  is  9 

otherwise  ordered  by  the  supreme  judicial  court,  or  until  the  appoint-  10 

ment  of  a  permanent  guardian,  or  un^il  the  trust  is  otherwise  legally  11 

terminated.  12 


Powers  and 
duties. 
1878,  230. 
P.  S.  139,  §  6. 
1897,  135,  §  2, 
1900,  345, 
§§2,5. 
R.  L.  145,  §  21. 


Section  15.  Such  temporary  guardian  shall,  until  otherwise  ordered,  1 
or  until  his  removal  or  the  appointment  of  a  permanent  guardian,  have  2 
the  same  powers  and  duties  relative  to  the  person  and  estate  of  the  ward  3 
as  permanent  guardians,  and  may  be  decreed  the  custody  of  the  person  4 
of  a  minor,  if  the  court  finds  the  parent  or  parents  unfit  therefor  or  if  5 
it  finds  one  of  them  unfit  therefor  and  the  other  consents  to  such  cus-  6 
tody  by  the  temporary  guardian  or  if  a  temporary  guardian  is  serving  or  7 
appointed  to  serve  in  place  of  a  temporary  guardian  removed.  If  such  8 
temporary  guardian  of  a  minor  is  appointed  pending  proceedings  for  9 
an  order  for  custody  under  section  five  or  for  the  removal  of  a  guardian  10 
of  a  minor,  he  shall  have  the  sole  custody  and  control  of  the  ward  during  11 
the  pendency  of  such  proceedings.  Upon  the  termination  of  his  powers,  12 
a  temporary  guardian  shall  deliver  to  the  guardian  or  such  person  as  13 
is  otherwise  lawfully  authorized  to  receive  it  the  estate  of  the  ward  in  his  14 
hands.  A  guardian  may  be  admitted  to  prosecute  an  action  commenced  15 
by  a  temporary  guardian.  16 


Chap.  201.]  guaedl^ns  and  conservators.  2185 


CONSERVATORS. 

1  Section  16.     If  a  person  by  reason  of  advanced  age  or  mental  weak-  Appointment. 

2  ness  is  unable  to  properly  care  for  his  property,  the  probate  court  may,  Jgoi,'  ill]  1 1; 

3  upon  his  petition  or  upon  the  petition  of  one  or  more  of  his  friends,  if  fggg;  H^'  ^  *"• 

4  after  notice  as  provided  in  the  following  section  and  after  hearing  it  j^o|'  J27. 1 1. 

5  appears  that  such  person  is  incapable  of  properly  caring  for  his  property,  204  Mass.  358. 

6  appoint  a  conservator  to  have  charge  and  management  of  his  property,  216  Mass!  394! 

7  subject  to  the  direction  of  the  court.         225  Mass.  22.         22s  Mass.  225. 

1  Section  17.     Upon  the  filing  of  such  petition  the  court  shall  appoint  Notice.^ 

2  a  time  and  place  for  a  hearing,  and  shall  cause  not  less  than  seven  days'  1901!  125'.  §  1'. 

3  notice  thereof  to  be  given  to  the  person  for  whom  a  conservator  is  to  J^os!  9«^'  ^  ^°' 

4  be  appointed,  except  that  the  court  may  for  cause  shown  direct  that  a  }ggf;  J^g'  1 3; 

5  shorter  notice  be  given.     No  appointment  shall  be  made  without  such  gi^Ma^s'  394 

6  notice  to  the  heirs  apparent  or  presumptive  of  such  person,  including 

7  the  husband  or  wife,  if  any,  as  the  court  may  order.    If  the  person  for 

8  whose  property  the  conservator  is  to  be  appointed  is  himself  the  peti- 

9  tioner  or  assents  in  writing  to  tlie  petition,  no  notice  shall  be  required. 

1  Section  18.    A  conservator  may  be  discharged  by  the  probate  court  Discharge. 

•  •  1901   1*^5  §  2 

2  upon  the  application  of  the  ward,  or  otherwise,  when  it  appears  that  r.  l.  ih'.  §  40. 

3  the  conser\atorship  is  no  longer  necessary.    But  a  conservator  of  the  Hoi]  ifv,  §  1. 

4  property  of  a  married  person  shall  not  be  discharged  without  such  notice  216  Mass!  394. 

5  as  the  court  may  order  to  the  husband  or  wife  of  such  person. 

1  Section  19.     A  conservator  shall  give  bond  like  that  required  of  ?°"i^ -^o,  ,  „ 

2  guardians  of  insane  persons  emitting  the  conditions  relative  to  the  R-L- us,  §41. 

3  custody  of  the  ward. 

1910,95.  225  Mass.  22.  228  Mass.  225.  3  Op.  A.  G.  252. 

1  Section  20.    A  conservator  shall  have  the  same  powers  and  duties,  Powers. 

2  except  as  to  the  custody  of  the  person,  as  a  guardian  of  an  insane  person;  r.  l!  hs!  |  li. 

3  and  all  laws  relative  to  the  jurisdiction  of  the  probate  court  over  the  IgJsll'a 

4  estate  of  a  person  under  guardianship  as  an  insane  person,  including  the  ^^^  '^^''*^-  ^^s- 

5  management,  sale  or  mortgage  of  his  property  and  the  payment  of  his 

6  debts,  shall  be  applicable  to  the  estate  of  a  person  under  conservatorship. 

1  Section  21.    Upon  tlie  petition  of  a  person  of  advanced  age  or  mental  Temporary 

2  weakness  or  of  a  friend,  the  probate  court  may,  if  it  finds  that  the  wel-  wis.  257, 

3  fare  of  the  person  of  ad\'anced  age  or  mental  weakness  requires  the  im-  1919, 5. 

4  mediate  appointment  of  a  temporary  conservator  of  his  property,  appoint     "  '  ' 

5  such  temporary  conservator,  with  or  without  notice,  and  may  in  like 

6  manner  remove  or  discharge  him  or  terminate  the  trust.     Such  tempo- 

7  rary  conservator  shall,  until  otherwise  ordered,  or  until  liis  removal  or 

8  the  appointment  of  a  permanent  conservator  or  guardian,  have  the  same 

9  powers  and  duties  as  a  permanent  conservator.    He  shall  be  subject  to 
10  all  laws  relative  to  permanent  conservators  so  far  as  applicable. 

1  Section  22.     If  a  conservator  or  a  guardian  for  an  insane  person  or  Allowance  for 

2  spendthrift  is  appointed,  the  court  shall  make  an  allowance,  to  be  paid  182^"  03,  §  2. 

3  by  the  conservator  or  guardian,  for  all  reasonable  ex-penses  incurred  by  2;  1;  logfj'u. 

4  the  ward  in  opposing  the  petition. 

p.  S.  139,  I  10.  R.  L.  145,  §  9.  1915,  23. 


2186 


GUAKDL\NS  AND  CONSERVATORS. 


[CUAP.   201. 


Appointment. 
G.  S.  108,  §  16. 
P.  S.  139.  §  13. 
R.  L.  145,  §  12. 
1915,  23. 


GTJ.ARDIANS  AND  CONSERVATORS  OF  MARRIED  WOMEN. 

Section  23.     If  a  married  woman  owns  property,  real  or  personal,  1 

a  guardian  or  conservator  may  be  appointed  for  her  for  the  same  causes,  2 

in  the  same  manner,  and  with  the  same  powers  and  duties,  as  if  she  were  3 

sole,  except  as  otherwise  provided  in  this  chapter.  4 


haTe'™s"t5?"°      Section  24.     The  guardian  of  a  married  woman  shall  not  have  the  1 

Ixcepf  ItJ^'     <^^^^>  custody  or  education  of  his  ward,  except  in  case  of  the  insanity  of  2 

G|  108.  §17.  her  husband,  or  of  his  abandoning  her  by  absenting  himself  from  the  3 

R.  L.  145,  §  13.  commonwealth  and  making  no  sufficient  provision  for  her.  4 


noTto'appiy'^"  SECTION  25.  The  guardian  or  conservator  of  a  married  woman  shall 
sulponJiiit"  ^^^'  except  as  provided  in  section  ninety-six  of  chapter  one  hundred  and 
out  leave  of  twenty-three,  apply  the  property  of  his  ward  to  the  maintenance  of  her- 
self and  her  family  while  she  is  married,  unless  he  is  thereto  authorized 
by  the  probate  court  on  account  of  the  inability  of  her  husband  suitably 
to  maintain  her  or  them,  or  for  other  cause  which  the  court  considers 
sufficient. 


probate  court. 
G.  S.  108.  §  18. 
P.  S.  139.  §  15. 
R.  L.  145,  §  14. 
1915,  23. 


Ssane'mar^ied  SECTION  26.     If  a  married  woman  is  by  reason  of  insanity  incompe- 

HghTof  do'S^?,  t^"*  to  release  her  right  of  dower  or  of  homestead,  a  guardian  may  be 

fo'=<!  ,cr,  appointed  for  her  in  the  same  manner  as  if  she  were  sole,  with  the  powers 

1856,  169,  '^i-..                                   ..                f,                .,                              ,                                         '^- 

§§  1,.  2.  and  duties  given  to  guardians  oi  married  women  who  own  property,  and 

§§  8.' 9.  ■  the  husband  or  any  suitable  person  may  be  appointed  such  guardian. 

G.  S.  108,  5  19.  P.  S.  139,  §  16.  1890,  259.  R.  L.  145.  §  15. 


Appointment. 
1783,38,  §  1. 
R.  S.  79.  §  28. 
G.  S.  109,  §  13. 
P.  S.  139,  §  17. 
R.  L.  145,  §  16. 
1915,  23. 
4  Allen,  466. 


GUARDIANS  AND   CONSERVATORS   OF  NON-RESIDENTS. 

Section  27.    If  a  person  who  is  liable  to  be  put  under  guardianship  1 

or  conservatorship  under  this  chapter  resides  out  of  the  commonwealth  2 

and  has  any  estate  therein,  a  friend  of  such  person  or  any  one  interested  3 

in  his  estate,  in  expectancy  or  otherwise,  may  apply  to  the  probate  court  4 

for  a  county  where  there  is  such  estate,  which,  after  notice  to  all  persons  5 

interested  and  a  hearing,  may  appoint  a  guardian  or  conservator  for  him.  6 


Powers  and 
duties. 

R.  S.  79,  §  29. 
G.  S.  109,  §  14. 
P.  S.  139.  §  18. 
R.  L.  145,  §  17. 
1915,  23. 
13  Met.  80. 
2  Allen,  206. 


Section  28.     Such   guardian   or   conservator   shall   have   the   same  1 

powers  and  duties  relative  to  any  estate  of  the  ward  found  within  the  2 

commonwealth,  and  also  in  the  case  of  a  guardian,  relative  to  the  person  3 

of  the  ward  if  he  comes  to  reside  therein,  as  other  guardians  or  conserva-  4 

tors  appointed  under  this  chapter.  4  AUen,  321.  5 


Bond. 

R.  S.  79,  §  30. 

G.  S.  109,  §  15. 

1879,  184. 

P.  S.  139,  §  19. 

R.  L.  145,  §  18. 

1915.  23. 


Section  29.     Such  guardian  or  conservator  shall  give  the  same  bond  1 

as  is  required  of  other  guardians  and  conservators  appointed  under  this  2 

chapter,  except  that  the  conditions  relative  to  inventory,  disposal  of  the  3 

estate  and  effects,  and  the  account  to  be  rendered  by  him  shall  be  confined  4 

to  such  estate  and  effects  as  come  to  his  hands  in  this  commonwealth.  5 


ToS^res.denV"  Section  30.     If  &  resident  of  another  state  is  entitled  to  real  or  per- 

ira-Side°nt  sonal  property  of  any  description  in  this  commonwealth,  and  is  under 

ward'8°e^Sti^^  the  guardianship  of  a  person,  also  resident  in  such  other  state,  who  pro- 

1875  189  duces  to  the  probate  court  of  the  county  where  such  property  or  the 

i88o!  154^  principal  part  thereof  is  situated  a  full  and  complete  and  duly  exempli- 


Chap.  201.]  guardL'^ns  and  conservators.  2187 

6  fied  or  authenticated  transcript  from  the  records  of  a  court  of  competent  P-  sjsg,  §  20. 

•  .  1900  232 

7  jurisdiction  in  sudi  other  state,  showing  that  he  has  there  been  appointed  r.  l'  145^  §  19. 

8  such  guardian,  and  has  given  a  bond  and  security  in  double  the  vahie  of  ^^°  ^^''^^'  '^°' 

9  the  property  of  such  ward,  such  transcript  may  be  recorded  in  such  pro- 

10  bate  court,  and  such  guardian  shall  be  entitled  to  receive  from  such 

11  court  letters  of  guardianship  of  the  estate  of  such  ward  in  this  common- 

12  wealth  which  shall  authorize  him  to  care  for  and  manage  the  real  and 

13  personal  property  of  such  ward,  to  collect  the  rents  and  profits  there- 

14  from  and  to  demand,  sue  for  and  recover  any  such  property,  and  to  remove 

15  any  of  the  movable  property  or  estate  of  such  ward  out  of  this  common- 

16  wealth,  if  such  removal  will  not  conflict  with  the  terms  and  limitations 

17  attending  the  right  by  which  the  ward  holds  the  same.     Such  probate 

18  court  may  also  order  any  resident  guardian,  executor  or  administrator 

19  who  has  any  of  the  estate  of  such  ward  to  deliver  the  same  to  any  person 

20  who  has  taken  out  letters  of  guardianship  as  aforesaid. 

1  Section  31.     A    guardian    or    conservator    appointed    within    this  Guardian,  etc., 

2  commonwealth,  whose  ward  removes  from  or  resides  out  of  this  com-  ma'ytransfe"^ 

3  monwealth,  may  transfer  and  pay  over  the  whole  or  any  part  of  the  FoTiign'guard- 

4  ward's  personal  property  to  a  guardian,  conservator,  trustee,  committee  ^ig^sTii"! 

5  or  other  ofiicial  appointed  by  competent  authority  in  the  state  or  country  o^gS.  m  §  23. 

6  where  the  ward  resides,  upon  such  terms  and  in  such  manner  as  the  1862!  139. 

7  probate  court  by  which  he  was  appointed  may,  after  notice  to  all  parties  p.  s.'is'g.'i  39. 

8  interested,  decree  upon  petition  filed  therefor. 

R.  L.  146,  §  25.  1907,  219.  1915,  23.  149  Mass.  57. 

1  Section  32.     An  executor,  administrator  or  trustee  who  has  in  his  Transfer  of 

2  hands  personal  property  belonging  to  a  person  under  guardianship  resid-  who  has  no  "^ 

3  ing  out  of  this  commonwealth  and  having  no  guardian  or  conservator  fn  thl'TOmmon- 

4  appointed  therein  may  pay  over  and  transfer  the  whole  or  any  part  of  7866!'i'22,  §  2. 

5  such  personal  property  to  a  guardian,  trustee  or  committee  appointed  p%^'/3|^§40 

6  by  competent  authority  in  the  state  or  country  where  such  person  R  l.  hs,  §  su. 

7  resides,  upon  the  same  terms  and  in  the  same  manner  as  provided  in 

8  the  preceding  section. 

REMOVALS,    resignations,    ETC. 

1  Section  33.     If  a  guardian  or  conservator  becomes  insane  or  otherwise  Removal,  etc., 

2  incapable  of  performing  his  trust  or  is  unsuitable  therefor,  the  probate  etc.,  and  ap- 

3  court,  after  notice  to  him  and  to  all  other  persons  interested,  may  remove  suc?^°'  °' 

4  him.    Upon  the  request  of  a  guardian  or  conservator,  the  probate  court  Jgi?!  196,  §  36. 

5  may  allow  him  to  resign  his  trust.    Upon  such  removal  or  resignation,  g- 1-  \^c,^?2^ 

6  and  upon  the  death  of  a  guardian  or  conservator,  another  may  be  ap-  ps.  139,' §21. 

7  pointed  in  his  stead.  R.  l.  145,  §  22.  1915, 23. 

4  Pick.  283.  11  Met.  104.  105  Mass.  .501.  155  Mass.  433. 

8  Pick.  143.  4  Gray,  63.  128  Mass.  587.  227  Mass.  77. 

GUARDIAN   AD    LITEM   AND   NEXT   FRIEND. 

1  Section  34.     If,  under  the  terms  of  a  written  instrument  or  other-  Appointment. 

2  wise,  a  minor  or  person  under  disability,  or  a  person  not  ascertained  or  not  i89g,  456,  §  i. 

3  in  being,  may  be  or  may  become  interested  in  any  property  real  or  per-  fgoo,  452',  1 2^' 

4  sonal,  the  court  in  which  any  action,  petition  or  proceeding  of  any  kind  |^J?  l\l^-  HI 

5  relative  to  or  affecting  any  such  estate  is  pending  may,  upon  the  repre-  227  Mass.  392. 

6  sentation  of  any  party  thereto,  or  of  any  person  interested,  appoint  a 


2188 


GUARDIANS   AND   CONSERVATORS. 


[Chap.  201. 


suitable  person  to  appear  and  act  therein  as  guardian  ad  litem  or  next  7 
friend  of  such  minor  or  person  under  disability  or  not  ascertained  or  not  in  8 
being;  and  a  judgment,  order  or  decree  in  sucli  proceedings,  made  after  9 
such  appointment,  shall  be  conclusive  upon  all  persons  for  whom  such  10 
guardian  ad  litem  or  next  friend  was  appointed.  11 


Expenses. 
1S96,  456,  §  2. 
R.  L.  145,  §  24. 
227  Mass.  392. 


Section  35.     The  reasonable  expenses  of  such  guardian  ad  litem  or  1 

next  friend,  including  compensation  and  counsel  fees,  shall  be  determined  2 

by  the  court  and  paid  as  it  may  order,  either  out  of  the  estate  or  by  the  3 

plaintiff  or  petitioner.     If  such  expenses  are  to  be  paid  by  the  plaintiff  4 

or  petitioner  execution  therefor  may  issue  in  the  name  of  the  guardian  5 

ad  litem  or  next  friend.  6 


Provisions  of 
this  chapter  not 
to  prevent  ap- 
pointment of 
guardian  ad 
litem  or  next 
friend. 
R.  S.  79,  §  S. 
G.  S.  109,  §  7. 


Section  36.     Nothing  in  this  chapter  shall  affect  the  power  of  a  1 

court  to  appoint  a  guardian  to  defend  the  interests  of  a  minor  impleaded  2 

in  such  court,  or  interested  in  a  suit  or  matter  there  pending,  nor  the  3 

power  of  such  court  to  appoint  or  allow  a  person,  as  next  friend  for  a  4 

minor,  to  commence,  prosecute  or  defend  a  suit  in  his  behalf.  5 


p.  S.  139,  §  43. 
1896,  456,  §  3. 
R.  L.  145,  §  39. 


1917,  326. 
8  Gush.  506. 


Ill  Mass.  265. 
116  Mass.  377. 


To  pa.v  debts, 
etc.,  and  repre- 
sent ward  in 
suits. 

1726-7,  12,  §  5. 
1731-2,  14,  §  5. 
1737-8,  9,  §  3. 
1783,  38,  §  4. 
1806,  102. 
R.  S.  79,  §  17. 
G.  S.  109,  §  IS. 
P.  S.  139,  §  29. 
R.  L.  145,  §  25. 
1915,23. 

4  Mass.  147. 

5  Mass.  299. 


GENERAL  POWERS  AND  DUTIES  OF  GUARDIANS  AND  CONSERVATORS. 

Section  37.     A  guardian  or  conservator  shall  pay  all  just  debts  1 

which  are  due  from  his  ward  out  of  the  personal  property,  if  sufficient,  2 

and,  if  not,  out  of  the  real  property,  upon  obtaining  a  license  for  the  3 

sale  thereof  as  provided  in  chapter  two  hundred  and  two.     He  shall  4 

settle  all  accounts  of  his  ward  and  demand,  sue  for  and  receive  all  debts  5 

due  to  him  or,  with  the  approval  of  the  probate  court,  may  compromise  6 

the  same  and  give  a  discharge  to  the  debtor.     He  shall  appear  for  and  7 

represent  his  ward  in  all  actions,  suits  and  proceedings,  unless  another  8 

person  is  appointed  therefor  as  guardian  ad  litem  or  next  friend.  9 


6  Mass.  58. 

13  Mass.  237. 

14  Mass.  207. 
1  Picli.  314. 

5  Pick.  431. 

13  Piclc.  206. 

14  Picli.  280. 

19  Pick.  346,  506. 
21  Pick.  30. 
24  Pick.  115. 


8  Gush.  587. 

9  Gray,  84,  255. 
5  Allen,  404. 

8  Allen,  311. 

10  Allen,  463. 
97  Mass.  508. 

99  Mass.  29. 

100  Mass.  239. 

101  Mass.  60. 
106  Mass.  501. 


Ill  M 

120  M 
128  M 

132  M 

133  M 
136  M 
146  M 
149  M 
151  M 
155  M 


ass.  265. 
ass.  487. 
ass.  116. 
.1SS.  414. 
ass.  531. 
ass.  219. 
ass.  40. 
ass.  57. 
ass.  354. 
ass.  136. 


168  Mass.  215, 

170  Mass.  499. 

171  Mass.  303. 
173  Mass.  140. 
180  Mass.  303. 
182  Mass.  332. 
184  Mass.  545. 
190  Mass.  117. 
204  Mass.  522. 


573. 


Support  of 
ward  and 
family. 

1726-7,  12,  §  4. 
1731-2,  14,  §  4. 
1737-8.  9,  §  3. 
1783,  38.  §  4. 
1806,  102. 
R.  S.  79,  §  18. 
G.  S.  109,  I  19. 
P.  S.  139.  §  30. 
R.  L.  145,  §  26. 
1915,23. 


Section  38.     He  shall  manage  the  estate  of  his  ward  frugally  and  1 

without  waste,  and  shall,  except  as  otherwise  provided,  apply  the  same,  2 

so  far  as  may  be  necessary,  to  the  comfortable  and  suitable  maintenance  3 

and  support  of  the  ward  and  his  family.     If  the  income  and  profits  are  4 

insufficient  for  that  purpose,  he  may  sell  tlie  real  estate  upon  obtaining  a  5 

license  therefor,  and  shall  apply  the  proceeds  of  such  sale,  so  far  as  may  6 

be  necessary,  for  the  maintenance  and  support  of  the  ward  and  his  family.  7 


1  Pick.  527. 
IS  Pick.  1. 
20  Pick.  116. 


4  Allen,  426. 
8  Allen,  427. 
10  Allen,  59. 


109  M.ass.  252. 
120  Mass.  487. 
157  Mass.  73. 


160  Mass.  232. 
181  Mass.  539. 
190  Mass.  459. 


Partition. 
1727.  5. 
1783,41,  §  1. 
R.  S.  79,  §  19. 
1852,  248. 
G.  S.  109,  §  20. 
P.  S.  139.  §  31. 
R.  L.  145,  §  27. 
1915,  23. 


Section  39.     A  guardian  or  conservator  may  make  partition  of  his  1 

ward's  real  property  if  lying  in  common  and  undivided,  either  upon  2 

petition  for  partition  or  otherwise,  as  fully  and  in  like  manner  as  the  3 

ward  could  do  if  he  were  under  no  disability,  may  assign  and  set  out  4 

dower  in  his  ward's  estate  to  any  widow  entitled  thereto,  and  may  ap-  5 


Chap.  201.]  GUAEDL«fs  and  conservators.  2189 

6  point  an  appraiser  of  real  property  on  an  execution  either  against  or  in  i9is,  257, 

7  favor  of  his  ward ;  except  that  when  the  guardian  or  conservator  has  an  1/19*5. 

8  interest  adverse  to  that  of  his  ward  no  partition  shall  be  made  without  rp['cif'22i, 

9  the  appointment  of  a  guardian  ad  litem.  ^i*- 

1  Section  40.     The  probate  court  may,  upon  the  petition  of  a  guardian  Support  of 

2  entitled  to  the  custody  of  his  minor  ward,  during  the  lifetime  of  either  parTnte'"''*  ^^ 

3  or  both  of  his  parents,  and  after  notice  to  all  parties  interested,  order  ^^l]  iff;  5  23. 

4  and  require  said  parents  or  either  of  them  to  contribute  to  the  support 

5  and  maintenance  of  such  minor  in  such  amounts  and  at  such  times  as  it 

6  determines  are  just  and  reasonable.    Such  parent  or  parents  may  be  re- 

7  quired  to  give  a  bond  conditioned  to  comply  with  such  order  and  payable 

8  to  the  judge  of  said  court  and  his  successors  in  such  sum  and  with  such 

9  sureties  as  the  court  orders.    The  court  may  from  time  to  time,  upon 

10  application  of  either  party,  revise  or  alter  such  order  or  make  such  new 

11  order  or  decree  as  the  circumstances  of  the  parents  or  the  benefit  of  the 

12  minor  may  require. 

1  Section  41.     If  a  minor,   who  has  a  father  living,   has  property  Application  of 

2  sufficient  for  his  maintenance  and  education  in  a  manner  more  expensive  ™ty°to  ifi™" 

3  than  the  father  can  reasonably  afford,  regard  being  had  to  the  situation  fatifer^s  ut"""^ 

4  of  the  father's  family  and  to  all  the  circumstances  of  the  case,  the  pro-  fg^  g^  ^  ^• 

5  bate  court  may  order  that  such  expenses  of  the  maintenance  and  educa-  pf'jgi'lla' 

6  tion  of  such  child  as  it  determines  are  reasonable  may  be  defrayed  out  R-  l  us.  §  29. 

7  of  his  own  estate;    and,  if  necessary,  his  real  property  upon  obtaining  4Mas8:97. ' 

8  license  therefor  may  be  sold  for  that  purpose  by  the  guardian.  "^  '  ^^^' 

8  Allen,  125.  144  Masa.  25.  164  Mass.  422.  181  Mass.  539. 

1  Section  42.     The  probate  court  may,  upon  the  application  of  the  Support  of 

2  guardian  of  an  insane  person  or  of  a  child  or  the  guardian  of  a  child  of  an  Ls'an'Jpe'rson 

3  insane  person,  after  notice  to  all  other  persons  interested,  authorize  and  iiniSi?"'"^'' 

4  require  the  guardian  of  such  insane  person  to  apply  to  the  maintenance  J>^s°'i3^9^'5  33 

5  and  education  of  any  child  or  children  of  said  ward  such  portion  as  the  k.  l.  145,  §  30. 

6  court  orders  of  the  estate  of  the  ward,  which  is  not  required  for  his 

7  maintenance  and  support. 

1  Section  43.     The  probate  court  for  the  county  where  a  guardian  Support  of  wife 

2  of  an  insane  person  has  been  appointed  may  make  an  allowance  out  of  SnlTeTguard^"" 

3  the  estate  of  such  insane  person  for  the  support  of  his  wife,  to  be  paid  'igs^'feg. 

4  to  her  by  the  guardian  during  the  continuance  of  the  guardianship  in  *f^|-  ^^j  ^  ^e 

5  such  manner  as  the  court  orders. 

1862,  116.  P.  S.  139,  §  34.  R.  L.  145,  §  31.  IGO  Mass.  232. 

1  Section  44.     The  probate  court  may,  after  notice  to  all  persons  Purchase  of 

2  interested,  authorize  a  guardian  or  conservator  to  obtain  by  purchase  dow^etc, 

3  the  release  and  conveyance  of  a  right  of  dower  or  curtesy,  homestead,  j," J^crty^  "^"^^ 

4  life  estate,  estate  for  years  or  other  interest,  vested  or  contingent,  held  p**f  ■fgg^'j^s's 
■")  or  owned  by  any  person  in  or  to  any  real  property  of  his  ward,  and  to  R-  l.  145,  §  32. 
G  make  any  contract  relative  to  such  right  or  interest  which  may  be 

7  necessary  to  effect  such  purchase. 

1  Section  45.     If  property,  rights  or  benefits  given  by  will  or  by  law  Election. 

2  depend  upon  the  election,  waiver  or  other  act  of  a  person  incompetent  ercise  of  power 

3  by  reason  of  insanity  or  minority  to  perform  the  same,  his  guardian  et'o.^"'"^  '*"' 


2190 


GUAKDI-USrS   AND  CONSERVATORS. 


[COAF.   201. 


1871, 97. 
P.  S.  139,  §  36. 
R.  L.  145,  §  33. 
1918,  68,  §  4. 
102  Mass.  568. 
153  Mass.  137. 
221  Mass.  315. 


may  make  such  election  or  waiver  or  perform  such  act;  but  if  a  power  4 

is  vested  in  an  insane  person  for  his  own  benefit,  or  his  consent  is  required  5 

for  the  exercise  of  any  power  where  the  power  of  consent  is  in  the  nature  6 

of  a  beneficial  interest  in  himself,  his  guardian  may,  by  order  of  the  pro-  7 

bate  court,  made  after  notice  to  such  persons,  if  any,  as  the  court  shall  8 

deem  proper,  exercise  the  power  or  give  the  consent  in  such  manner  as  9 

shall  be  authorized  or  directed  by  the  order.  10 


Appraisal  of 
estate. 


Section  46.  Upon  taking  an  inventory,  the  estate  and  effects  com-  1 
R 's'79°§  20^'  prised  therein  shall  be  appraised  in  the  manner  required  by  section  six  of  2 
G.  s.  109,  §  17.  chapter  one  hundred  and  ninetj'-five.         p.  s.  139,  §  37.  r.  l.  145,  §  34.  3 


Sale  of  personal 
property  of 
ward. 

1817,  190.  §  35. 
1820,  54,  I  3. 
R.  S.  79,  §21. 
G.  S.  109,  §  22. 
P.  S.  139.  §  38. 
R.  h.  145,  §  35. 
1913,23. 
2  Pick.  243. 
20  Pick.  116. 
4  Allen,  426. 
8  Allen,  15.  427. 
120  Mass.  102. 
168  Mass.  573. 
190  Mass.  27. 
459. 


Section  47.    The  probate   court  may,   upon  the  application  of  a  1 

guardian  or  conservator  or  of  any  person  interested  in  the  estate  of  a  2 

ward,  after  notice  to  all  other  persons  interested,  authorize  or  require  3 

the  guardian  or  conservator  to  sell  and  transfer  any  personal  property  4 

held  by  him  as  guardian  or  conservator  and  to  invest  the  proceeds  thereof  5 

and  all  other  money  in  his  hands  in  such  manner  as  may  be  for  the  best  6 

interest  of  all  concerned.    Said  court,  after  such  notice,  if  any,  as  it  may  7 

recjuire,  may  make  such  further  order  and  give  such  directions  as  the  8 

case  may  require  for  the  management,  investment  and  disposition  of  9 

the  estate  in  the  hands  of  the  guardian  or  conservator.  10 


propert7o°^          Section  48.     Upon  complaint  to  the  probate  court  by  a  guardian,  1 

bee'nembez-'"'^  couscrvator.  Ward,  Creditor  or  other  person  interested  in  the  estate  of  a  2 

ward  or  by  a  person  having  claims  thereto  in  expectancy  as  heir  or  other-  3 

wise,  against  any  one  suspected  of  having  fraudulently  received,  con-  4 

cealed,  embezzled  or  conveyed  away  any  of  the  property,  real  or  personal,  5 

of  the  ward,  the  court  may  cite  and  examine  such  suspected  person,  6 

although  he  is  the  guardian  or  conservator,  in  the  manner  and  subject  7 

p'l  im'§42    ^°  ^^^  penalties  provided  in  section  forty-four  of  chapter  two  hundred  8 

R.  L.  145,  §  38.  and  fifteen.                          i9i5, 23.                           11  Gray,  210.  9 


zled,  etc 
1726-7,  12, 
§§2,3. 
1731-2,  14, 
§§  2,  3. 
1737-8,  9,  §  2. 
1783,  38,  §  3. 
R.  S.  79,  §  27. 
1857,  71,  §  2. 


AGENTS   OF   NON-RESIDENT   GUARDL'VNS  AND   CONSERVATORS. 

^fde*nt°gua°d-       SECTION  49.     Scctious  eight,  nine  and  ten  of  chapter  one  hundred  and 
ian  or  con-        nincty-five  shall  apply  to  non-resident  guardians  and  conservators. 

1889,462.  1893.118.  R.  L.  145.  §  42. 


ser\'ator. 


REFERENCES. 

§  1.     The  appointment   of    trust  companies   and   national   banks   to   fiduciary 
positions,  Chap.  172,  §  52,  and  reference  at  end  of  chapter. 
Ckjnfhct  of  jurisdiction,  Chap.  21.5,  §  7. 

Appointment  of  the  Massachusetts  Society  for  Prevention  of  Cruelty  to 
Children  and  the  Hampden  County  Children's  Aid  Association,  Chap. 
119,  §§31-35. 
Appointment  of  the   Home  for  Destitute   Catholic  Children,   1890,  117; 

1891,  312. 
Appointment  of  a  married  woman.  Chap.  209,  §  5. 
Appointment  of   a  judge,  register  or  assistant  register  of  probate  or  any 

person  employed  in  the  registry  of  probate,  Chap.  217,  §§  6,  7. 
Authority  of  guardians,  etc.,  to  contract  for  the  safe  keeping  of  property 
in  their  hands,  Chap.  175,  §  105. 
§  2.     Bond,  Chap.  205,  §  1. 
I  4.     Giving  of  bond  without  sureties,  Chap.  205,  §  6. 

Habeas  corpus  proceedings  to  bring  child  before  the  probate  court,  Chap. 
208,  §  32. 


Cli^P.   202.]        SALES,   ETC.,   OF  REAL  ESTATE   BY  EXECUTORS,   ETC. 


2191 


§  5. 
§  6. 
§  30. 
§  33. 

§  3.5. 
§  37. 


§  40. 


Criminal  [iroceedings  to  compel  parents  to  support  minor  children,  Chap. 

273,  §§  1-10. 
Giving  of  bond  without  sureties,  Chap.  205,  §§  5,  6. 
Definition  of  an  insane  person.  Chap.  4,  §  7,  cl.  15th. 
Rights  of  foreign  guardians,  etc.,  Chap.  202,  §  33. 
Effect  of  an  appeal  from  decree  of  removal.  Chap.  215,  §  25. 
Removal  for  failure  to  pay  board  of  ward  at  state  hospital,  Chap.  123,  §  96. 
Compensation  in  the  probate  court,  Chap.  215,  §  39. 
Right  of  a  guardian  or  conservator  to  release  damages  where  land  of 

his  ward  is  taken  for  the  use  of  a  railroad,  Chap.  79,  §  20. 
Limitation  on  actions  against  guardian  and  conservator.  Chap.  260,  §  11. 
Method  of  recovery  for  services  rendered  in  connection  with  guardianship 

or  conservatorship.  Chap.  215,  §  39. 
Criminal  proceedings  to  compel  support  of  minor  children.  Chap.  273. 


CHAPTER    202. 


SALES,  MORTGAGES  AND  LEASES  OF  RE.\L  ESTATE  BY  EXECUTORS, 
ADMINISTRATORS,  GUARDIANS   AND   CONSERVATORS. 


Sect. 

SALES. 

1.  Sale  of  real  estate  to  pay  debts,  etc. 

2.  Real  estate  subject  to  sale. 

3.  Sale  free  of  dower  or  curtesy. 

4.  Undevised  real  estate  first  liable  to  be 

sold. 
6    Sale  of  real  estate  of  ward. 

6.  Venue. 

7.  Form  of  petition. 

8.  Whole  may  be  sold  if  partial  sale  would 

injure  residue. 

9.  Marshalling  assets  under  a  will. 

10.  Notice  on  petition  of  executor  or  ad- 

ministrator. 

11.  Notice  on  petition  by  guardian  or  con- 

servator. 

12.  License  to  guardian  of  insane  person, 

etc.,  only  after  notice  to  overseers  of 
poor. 

13.  No    license    if     bond     given     to     pay 

debts. 

14.  Public  or  private  sale  of  real  estate. 

15.  Notice  of  sale  by  auction. 

16.  Perpetuation  of  evidence  of  giving  of 

notice. 

17.  Adjournment  of  sale. 

18.  Recovery  of  possession  of  land  fraudu- 

lently conveyed. 

19.  Sale  of  real  property  by  administrator, 

etc.,  for  distribution. 

20.  Time  within  which  real  estate  is  liable 

to  be  sold  for  payment  of  debts. 


Sect. 

sales   by  guardians  and   conservators 
for  maintenance  or  investment. 

21.  Sale   by   guardian   or   conservator   for 

maintenance  or  investment. 

22.  Form  of  petition  and  license. 

23.  Disposal  of  proceeds  of  sale  if  made  for 

maintenance. 

24.  Disposal  of  proceeds  of  sale  i  f  made  for 

investment. 

25.  Property  of  minor  may  be  sold  by  per- 

son other  than  the  guardian. 

26.  Disposal  of  proceeds  of  sale  in  such  case. 

SALE.S      BY      QUABDLAN      OF      NON-RESIDENT 
WARD. 

27.  Transfer   of   property   of   non-resident 

ward,  etc. 

MORTOAOES. 

28.  Mortgage  by  executor  or  administrator. 

29.  Mortgage  by  guardian  or  conservator. 

30.  Form  of  petition  and  decree. 

LEASES. 

31.  Lease  of  real  estate  of  ward. 

POWERS    OP   FOREIGN    EXECUTOR,  ETC. 

32.  Foreign  executor,  etc.,  may  be  licensed 

to  sell  real  estate. 

33.  Foreign  guardian  or  conservator  may 

be  Ucensed  to  sell  real  estate  of  ward. 

34.  Bond  in  certain  cases. 

35.  Subsequent  proceedings. 


SALES. 


1  Section  1.     If  the  personal  property  of  a  deceased  person  is  insuffi-  Saieofreai 

2  cient  to  pay  his  debts,  legacies  and  charges  of  administration,  his  executor  debts,  etc. 

3  or  administrator  shall,  for  the  purpose  of  paying  such  debts,  legacies  or  nss',  32! 


1696, 10,  §  2. 
"  1. 


2192 


SALES,  ETC.,  OF  REAL  ESTATE  BY  EXECUTORS,  ETC.       [ChAP.   202. 


1S18,  112,  §  3. 
R.  S.  65,  §§  8, 
9;  71,  §§  1,  20. 
G.  S.  96,  §§  7, 
8;  102,  §§  1,19. 
P.  S.  134,  §  1. 
R.  L.  146,  §  1. 


charges  of  administration,  sell  his  real  estate  in  the  manner  hereinafter  4 

provided,  and  the  proceeds  thereof  shall  be  assets  in  the  hands  of  the  5 

executor  or  administrator  in  like  manner  as  if  they  had  originally  been  6 

part  of  the  personal  property  of  the  deceased.              1918,257,  §397.  7 


1919,  5. 

1920,  2. 

14  Mass.  83. 
5  Pick.  140. 
18  Pick.  285. 


4  Gush.  467. 

3  Grav,  205. 

4  Allen,  359. 
100  Mass.  224. 
105  Mass.  33. 


125  Mass.  363. 
140  Mass.  351. 
182  Mass.  534. 
186  Mass.  577. 
212  Mass.  248. 


Real  estate 
subject  to  sale. 
1805,  90,  §  5. 
R.  S.  71,  §  11. 
G.  S.  102,  §  11. 
1881,  112,  §  1. 
P.  S.  134,  §  2. 
R.  L.  146,  §  2. 
167  Mass.  205. 
182  Mass.  534. 
187  Mass.  531. 

189  Mass.  390. 

190  Mass.  513. 
212  Mass.  248. 
214  Mass.  549. 


Section  2.    The  real  estate  so  liable  to  be  sold  shall  include  all  land  1 

of  the  deceased,  all  rights  of  entry  and  of  action  and  all  other  rights  and  2 

interests  in  land,  which  would  descend  to  his  heirs  or  would  have  been  3 

liable  to  attachment  or  execution  by  a  creditor  of  the  deceased  in  his  4 

lifetime;  but  the  title  passed  by  any  such  sale  shall,  except  as  provided  5 

in  the  following  section,  be  subject  to  the  dower  of  the  wife  or  curtesy  6 

of  the  husband  of  the  deceased.    No  claim  by  entry  or  by  action  to  land  7 

fraudulently  conveyed  by  the  deceased  shall  be  made  unless  within  five  8 

years  after  the  decease  of  the  grantor.  9 


Sale  free  of 
dower  or 
curtesy. 
1917,  309. 


Section  3.  Upon  a  petition  by  an  executor  or  administrator  to  sell  1 
real  estate  of  a  deceased  person,  if  it  shall  appear  that  a  surviving  hus-  2 
band  is  or  may  be  entitled  to  an  estate  of  curtesy,  or  a  surviving  wife  3 
to  an  estate  of  dower  in  the  premises  to  be  sold,  the  probate  court  may,  4 
if  the  petitioner  so  requests,  and  after  notice,  license  him  to  sell  the  5 
same  free  and  clear  of  any  such  interest  or  claim  on  the  part  of  the  sur-  6 
viving  husband  or  wife.  One  third  of  the  proceeds  of  the  sale  shall  there-  7 
upon  be  set  apart  for  the  period  during  which  such  curtesy  or  dower  8 
may  be  claimed;  and  if  a  claim  is  duly  made  therefor,  the  court  shall  9 
appoint  a  trustee  to  administer  the  same  in  accordance  with  section  10 
thirty-five  of  chapter  two  hundred  and  forty-one,  unless  the  parties  in  11 
interest  shall  otherwise  agree  upon  a  division  of  the  proceeds  without  12 
the  appointment  of  a  trustee,  and  the  probate  court  may  approve  any  13 
such  agreement  on  the  part  of  the  executor  or  administrator.  14 


Undevised 
real  estate 
first  liable  to 
be  sold. 
R.  S.  62,  §  30. 


Section  4.  Real  estate  not  devised  shall  be  first  chargeable  with  the  1 
payment  of  debts,  legacies  or  charges  of  administration  in  exoneration  2 
of  real  estate  devised,  unless  a  different  intention  appears  by  the  will.  3 


G.  S.  92,  §  34. 
P.  S.  134,  §  3. 


R.  L.  146,  §  3. 
6  Mass.  149. 


8  Pick.  478. 
7  Gush.  161. 


Sale  of  real 
estate  of  ward. 
1783,  38,  §  4. 
ISOli,  102. 
1818,  112,  §  1. 
1830,  140,  §  1. 
R.  S.  71,  §  26. 
G.  S.  102,  §  24. 
P.  S.  140,  §  1. 
1899,  147. 
R.  L.  146,  §  4. 
1915,  23. 
16  Mass.  326. 
7  Met.  388. 


Section  5.     If  the  personal  property  in  the  hands  of  a  guardian  or  1 

conservator  is  insufficient  to  pay  the  debts  of  the  ward,  with  the  charges  2 

of  managing  his  estate,  the  guardian  or  conservator  may  be  licensed  to  3 

sell  the  ward's  real  estate  for  that  purpose  or  for  the  purpose  of  raising  4 

money  with  which  to  pay,  in  whole  or  in  part,  any  encumbrance  existing  5 

thereon  when  the  title  thereto  came  to  his  ward,  in  like  manner  and  6 

upon  like  terms,  except  as  hereinafter  provided,  as  are  provided  for  a  7 

sale  of  real  estate  by  an  executor  or  administrator.  8 


Venue. 
1696,  10,  §  2. 
1769-70,  20. 
1783,  32,  §  1. 
1806,  102. 

1817,  190,  §  10. 

1818,  112, 
§§  1,  3. 


Section  6.     A  license  to  an  executor  or  administrator  to  sell  the  real  1 

estate  of  a  deceased  person  or  to  a  guardian  or  conservator  to  sell  the  2 

real  estate  of  his  ward  may  be  granted  by  the  probate  court  appointing  3 

him.  1S30,  45;  140,  §  1.  R.  S.  71,  §§  2,  30;  72,  §  6.  4 

G.  .S.  102,  §§  2,  37.  P.  S.  134,  §4;   140,  §  13.  R.  L.  146,  §  5.  1915,23. 


ClL^P.   202.]        SALES,   ETC.,   OF  REAL  ESTATE   BY  EXECUTORS,   ETC.  2193 

1  Section  7.    To   obtain   such   license,    the   executor,    administrator,  Form  of 

2  guardian  or  conservator  shall  file  a  petition  stating  the  value  of  the  per-  i783,"32',  §  i. 

3  sonal  property  in  his  hands,  the  amount  of  the  charges  of  administration  §:  1;  iokS^s. 

4  or  management,  the  amount  of  debts  due  from  the  deceased  or  ward,  as  f^if  j'l^'  ^  ^' 

5  nearly  as  can  be  ascertained,  and,  if  a  person  dies  testate,  the  amount  R-  l-  we,  §  e. 

6  of  any  legacies  given  in  his  will.    If  it  is  necessary  to  sell  a  part  only  of  is  i'ick.  23. 

7  the  real  estate,  the  value,  description  and  condition  of  the  part  which  s  Met  si.' 

8  it  is  proposed  to  sell  may  also  be  set  forth,  and  the  court  may  direct  what  u  Gray,  sob. 

9  specific  part  shall  be  sold. 

105  Mass.  33.  182  Mass.  534.  190  Mass.  513.  192  Mass.  79. 

1  Section  8.     If  it  is  represented  in  such  petition  and  appears  to  the  whoiemaybe 

2  court  to  be  necessary  to  sell  a  part  of  the  real  estate,  and  that  by  such  ll\e  wouu  In- 

3  partial  sale  the  residue  of  the  property  or  of  a  specific  part  or  piece  i'78"32!'§'2. 

4  thereof  would  be  greatly  injured,  the  court  may  license  a  sale  of  the  Jfgg;  \\l]  | }; 

5  whole  or  any  part  thereof.  1830,  i-io,  1 1.  r.  s.  7i,  §§  4, 27. 

G.  S.  102,  §§  4,  25.  R.  L.  146.  §  7.  157  Mass.  565. 

1880,  152,  §  2.  6  Gray,  635.  182  Mass.  534. 

P.  S.  134,  §  6;  14  Gray,  500.  190  Mass.  513. 

140,  §  2.  102  Mass.  262.  192  Mass.  79. 

1  Section  9.     If  a  will  contains  a  provision  for  the  payment  of  debts,  MarshaiUng 

2  or  which  may  require  or  induce  the  court  to  marshal  the  assets  in  a  wnf.  ^ "°  "^ 

3  manner  different  from  that  which  the  law  would  otherwise  provide,  clilioi.SV 

4  the  executor  shall  set  forth  in  the  petition  a  copy  of  the  will,  and  the  rl\4oH 

5  court  shall  marshal  the  assets  accordingly,  so  far  as  can  be  done  consist-  jjp?^?-  ^i|- 

6  ently  with  the  rights  of  the  creditors.  192  Mass.  79. 

1  Section  10.     No  license  to  sell  real  estate  shall  be  granted  to  an  Notice  on 

2  executor  or  administrator  until  notice  of  the  petition  and  of  the  time  executor  or 

3  and  place  appointed  for  hearing  the  same  has  been  given  by  serving  such  ivS^I'Ti"^' 

4  notice  personally  on  all  persons  interested  in  the  estate  at  least  fourteen  J*i^'  ff'  ^  ^°- 

5  days  before  the  time  appointed  for  the  hearing,  or  by  publication  once  p§ii;,^s*o 

6  in  each  of  three  successive  weeks  in  such  newspaper  as  the  court  orders,    p.'  s.'  134,'  §  9.' 

1886,  137,  §  2.  8  Met.  51,  355.  147  Mass.  489. 

R.  L.  146.  §  10.  9  Gush.  223.  190  Mass.  S13. 

1  Mass.  256.  ,  13  Gray,  513. 

1  Section  11.     No  license  to  sell  real  estate  shall  be  granted  to  a  guard- '^°';'^^  ™ 

„    .  Ml-  111-  petition  by 

2  lan  or  conservator  until  such  notice  as  the  court  orders  has  been  given  guardian  or 

3  to  the  next  of  kin  of  the  ward,  to  all  his  heirs  apparent  or  presumptive,  17S3, 32,  §  i. 

4  and  to  all  persons  interested  in  the  estate. 

1814,  71.  R.  S.  71,  55  8,  29;  P.  S.  140,  §§  15,  16. 

1817,  190,  5  10.  72,  §  8.  R.  L.  146,  §  11. 

1830, 45.  G.  S.  102,  §5  39. 40.        1915,  23. 

1  Section  12.    No  license  to  sell  real  estate  shall  be  granted  to  the  License  to 

2  guardian  of  a  spendthrift  who  resides  in  the  commonwealth,  or  of  an  in-  fHsaM^ncKon, 

3  sane  person,  unless  seven  days'  notice  of  the  petition  therefor  has  been  notice  to  over- 

4  given  to  the  overseers  of  the  poor  of  the  town  where  the  spendthrift  ^j|^q"'|  °'yP°°''- 

5  resides,  or,  in  the  case  of  an  insane  person,  to  the  department  of  mental  isis'  ii^i  §  i. 

6  diseases.    Such  notice  may  be  served  upon  any  of  said  overseers  or  any  is3o!  14b,  §  1. 

7  member  of  said  department.  R.  s.  71,  §  28;  72,  §  9. 

G.  S.  102,  §  38.  P.  S.  140,  §  14.  1909,  504,  §§  102,  107. 

1874,  202.  R.  L.  146,  §  13.  1916,  285,  §  1. 

1  Section  13.     No  license  shall  be  granted  to  an  executor  or  admin-  no  license 

2  istrator,  if  any  person  interested  in  the  estate  gives  bond  to  him  in  li pTycfc'b^! 


2194 


SALES,  ETC.,   OF   REAL  ESTATE   BY   EXECLTOES,  ETC.      [ClLiP.   202. 


1817, 190.  §  10. 
R.  S.  71.  §  9. 
G.  S.  102.  §  9. 
P.  .S.  134.  §  10. 
R.  L.  146,  §  12. 
5. -Mien.  US. 
100  Mass.  224. 
150  Mass.  3S1. 
190  Mass.  513. 


a  sum  and  -w-ith  sureties  approved  by  the  court,  conditioned  to  pay,  so  3 

far  as  the  personal  property  of  the  deceased  shall  be  insufficient  there-  4 

for,  all  legacies  mentioned  in  the  petition,  all  debts  therein  mentioned  5 

•which  shall  eventually  be  found  due  from  the  estate  and  charges  of  6 

administration.  7 


Public  or 
private  sale 
of  real  estate. 
17S3.  32.  §§  1. 
2;  .38,  §  4. 
1806,  102. 
1S17.  1.S2,  I  1. 
1818.  112,  §  1. 
1830.  140,  §  1. 
R.  S.  71,  5§  10, 
17,  26. 
G.  S.  102, 
§§  10,  17,  24. 
1872,  278. 
P.  S.  134.  §  11; 
140,  §§  1.  18. 

1885,  3»8. 

1886,  137,  §  1. 
1899,  147. 

R.  L.  146,  §  9. 
1915.  23, 
4  Cush.  54. 
2  Grav,  154. 
13  Grav,  326. 
4  Allen,  184. 


Section  14.     Upon  a  petition  of  an  executor  or  administrator  for  a  1 

license  to  sell  real  estate  of  the  deceased  or  of  a  guardian  or  conservator  2 

to  sell  real  estate  of  his  ward,  the  court  may,  if  the  petitioner  so  requests,  3 

authorize  him  to  sell  such  property  at  public  auction  and  to  convey  to  the  4 

purchaser  all  the  estate,  right,  title  and  interest  which  the  deceased  had  5 

therein  at  his  death  and  which  was  then  chargeable  with  the  pajTnent  6 

of  his  debts  or  which  the  ward  has  at  the  time  of  the  sale.    If  the  peti-  7 

tioner  requests  that  such  property  may  be  sold  by  private  sale  and  the  8 

court,  upon  a  hearing,  finds  that  an  advantageous  offer  for  the  purchase  9 

thereof  has  been  made  to  the  petitioner,  and  that  the  interests  of  all  10 
parties  will  be  promoted  by  an  acceptance  thereof,  it  may  authorize  all 

conveyance  by  private  sale  in  accordance  with  such  offer  or  upon  other  12 

terms;  but  the  petitioner  so  authorized  may  nevertheless  sell  such  prop-  13 

erty  by  public  auction  in  accordance  with  this  chapter.  14 

147  Mass.  489.  190  Mass.  459.  513.  221  Mass.  587. 


Notice  of  sale 
bv  auction. 
1719-20,  10, 
§2. 

1783,32,  §  1. 
1814,  71. 
1829,  108,  §  2. 
R.  S.  71.  §§  15, 
35:  72,  §§  12, 
15. 

G.  S.  102, 
§§  15,41. 
1877,  158,  §  1. 


vSection  15.     An  executor,   administrator,   guardian  or  conservator  1 

shall  give  notice  of  the  time  and  place  of  a  sale  by  auction  by  causing  2 

notices  thereof  to  be  posted,  thirty  days  at  least  before  the  sale,  in  a  3 

public  place  in  the  town  where  the  land  lies,  and  in  two  adjoining  towns,  4 

if  there  are  so  many  in  the  county,  or,  if  the  court  granting  the  license  5 

so  orders,  by  publishing  the  notice  once  in  each  of  three  successive  weeks  6 

in  a  newspaper.  p.  s.  134,  §  12;  140,  §  17.  r.  l.  i46,  §  14.  7 

1915,  23.  1  Mass.  256.  8  Met.  355.  4  .VUen,  426. 


Perpetuation 
of  e\'idence  of 
gi^-ing  of 
notice. 
1788.  66, 
§§  6.  7. 
1812.  24. 
R.  S.  71.  §§  16. 
35;  72,  §§  12. 
15. 

1853,  393. 
G.  S.  102, 
§§  16,41. 


Section  16.     An  affidavit  of  the  executor,  administrator,  guardian  1 

or  conservator,  or  of  a  person  in  his  behalf,  filed  and  recorded  with  a  copy  2 

of  the  notice  in  the  registry  of  probate,  or  such  affidavit  made  by  any  3 

person  and  filed  and  recorded  with  such  copy  by  permission  of  the  court  4 

upon  satisfactory  evidence  that  the  notice  was  given  as  ordered,  shall  be  5 

admitted  as  evidence  of  the  time,  place  and  manner  in  which  the  notice  6 

was  given.                                              iS76, 7i;76.  7 


p.  S.  134,  I  13; 
140,  §  17. 


1888,  148,  §  2;  380. 
R.  L.  146.  I  15. 


1915,  23. 
8  Met.  355. 


of'^iaiT™"'"         Section  17.     If  at  the  time  appointed  for  such  sale  the  executor,  1 

r's.'7i,''§|  If.  administrator,  guardian  or  conservator  considers  it  for  the  interest  of  all  2 

cf'l^io?'  ^  ^^'  P^i'sons  concerned  that  the  sale  should  be  postponed,  he  may  adjourn  3 

it  for  not  more  than  fourteen  days,  and  notice  of  such  adjournment  shall  4 

be  given  by  a  public  declaration  at  the  time  and  place  first  appointed  for  5 

the  sale.     If  the  adjournment  is  for  more  than  one  day,  finther  notice  6 

of  tlie  sale  shall  be  given  by  posting  or  publishing,  as  time  and  circum-  7 

stances  may  admit.  8 


17,  18,41 
p.  S.  134,  §  14; 
140,  §  17. 
R.  L.  146,  §  16 
1915,  23. 
15  Mass.  175. 


Recovery  of 

f>ossession  of 
and  fraudu- 
lently con- 
veyed. 
R.  S.  71, 
§5  12,  13. 


Section  18.  If  an  executor  or  administrator  is  licensed  to  sell  land 
which  has  been  fraudulently  conveyed  by  the  deceased  or  is  fraudulently 
held  by  another  person  for  him,  or  land  to  which  the  deceased  had  a  right 
of  entry  or  of  action  or  of  which  he  had  a  right  to  a  conveyance,  he  may, 


Chap.  202.]     sales,  etc.,  of  real  estate  by  executoks,  etc.  2195 

5  within  one  year  after  such  license,  sell  the  land  without  first  obtaining  g.  s.  102. 

6  possession  thereof  by  entry  or  action,  or  he  may  witiiout  a  formal  entry  p.  s.  134,'  §  is. 

7  bring  an  action  to  obtain  possession  by  virtue  of  sucii  license,  demanding  s 'olsh^sb!.^^' 

8  the  land  as  executor  or  administrator,  and  may  sell  the  same  witliin  one  }o2^Mas3*26'2. 

9  year  after  possession  is  obtained. 

105  Mass.  33.  147  Mass  489.  182  Mass.  534.  1S9  Mass  390. 

132  Mass.  462.  152  Mass.  257.  186  Mass.  59.  204  Mass.  270. 

1  Section  19.    The  probate  court  may,  upon  petition  of  an  adminis-  saieofreai 

2  trator,  administrator  with  the  will  annexed,  or  executor,  unless  the  will  administrator. 

3  otherwise  provides,  filed  within  one  year  after  the  date  of  the  giving  trfbution?^ 

4  of  the  executor's  or  administrator's  bond,  or,  if  an  administrator  de  bonis  ^'^°'  266.    ^^ 

5  non  shall  be  appointed  within  one  year  after  the  date  of  the  original  inoi,  217! 

6  appointment  of  the  executor  or  administrator,  then  within  six  months  11107;  236. 

7  after  the  date  of  the  giving  of  a  bond  by  such  administrator  de  bonis  non,  22i'Mas8!  262. 

8  with  the  consent  of  all  parties  interested  or  after  notice,  license  him  to  ^^^  '^''^'  ^' 

9  sell  the  whole  or  any  part  of  the  real  estate  or  any  undivided  interest 

10  therein  belonging  to  the  estate  of  the  deceased,  in  such  manner  and 

11  upon  such  notice  as  the  court  orders,  for  the  purpose  of  distribution; 

12  and  the  net  proceeds  of  such  sale,  after  deducting  the  expenses  thereof 

13  and  such  amount  as  may  be  required  for  the  payment  of  debts,  lega- 

14  cies  and  charges  of  administration,  in  consequence  of  a  deficiency  in  the 
1.5  personal  property,  shall,  subject  to  the  laws  governing  the  distribution  of 

16  the  personal  estate  of  the  deceased,  be  distributed  to  the  persons  who 

17  would  have  been  entitled  to  such  real  estate  and  in  the  proportions  to 

18  which  they  would  have  been  entitled  had  it  not  been  sold.    Before  any 

19  such  license  shall  be  issued,  the  petitioner  shall  file  in  the  probate  court 

20  an  affidavit  containing  the  names  of  all  persons  known  to  him  as  having 

21  or  claiming  any  interest  in  said  real  estate  derived  from  any  deed  of 

22  conveyance  or  mortgage  by,  through  or  under  any  of  the  heirs  or  devi- 

23  sees,  and  if  it  appears  that  there  are  any  such  persons,  they  shall  be 

24  made  parties  to  the  proceedings,  and  notified  in  such  manner  as  the  court 

25  orders. 

1  Section  20.    Whenever  an  executor  or  administrator  has  given  due  Time  witun 

2  notice  of  his  appointment,  and  an  affidavit  thereof  has  been  filed  in  ac-  mute  ITuMe 

3  cordance  with  sections  two  and  three  of  chapter  one  hundred  and  ninety-  paymlniVf""^ 

4  five,  no  interest  in  the  real  estate  of  the  deceased  conveyed  absolutely  ]|o7^549,  §  1. 

5  or  in  mortgage  for  value  and  in  good  faith  by  an  instrument  duly  re-  }9}|'|33  ,26 

6  corded  shall  be  liable  to  be  taken  on  execution,  or  sold  under  any  judicial  1920!  2. 

7  proceeding  for  payment  of  his  debts,  costs  of  court  or  claims  against  214  Masai  549! 

8  his  estate,  except  claims  for  taxes,  municipal  assessments  or  succession  "'^^ 

9  taxes,  legacies  or  other  charges  created  by  will  of  the  deceased,  or  the 

10  expenses  or  charges  of  admmistration,  after  the  expiration  of  one  year 

11  from  the  time  of  such  executor  or  administrator  giving  bond  for  the 

12  performance  of  his  trust,  or  from  the  passing  of  the  order  of  the  probate 

13  court  mentioned  in  said  section  three,  unless  in  piu-suance  of  a  license  to 

14  sell  granted  in  consequence  of  an  order  for  the  retention  of  assets  passed 

15  under  the  provisions  of  section  thirteen  of  chapter  one  hundred  and 

16  ninety-seven,  upon  a  petition  filed  within  said  year  or  before  said  con- 

17  veyance  or  mortgage  is  recorded,  or  unless  in  pursuance  of  a  license  to 

18  sell  granted  upon  a  petition  filed  in  the  registry  of  probate  within  said 

19  year,  or  unless  for  the  satisfaction  in  whole  or  in  part  of  a  claim  of  wliich 

20  notice  has  been  filed  in  the  registry  of  probate  within  said  year,  stating 


2196 


SALES,  ETC.,  OF  REAL  ESTATE  BY  EXECUTORS,  ETC.       [CfLU'.   202. 


substantially  the  name  and  address  of  the  claimant,  the  nature  and  21 
amount  of  the  claim  and  the  court,  if  any,  in  which  proceedings  are  pend-  22 
ing  to  determine  or  enforce  the  same.  Said  notice  shall  be  filed  with  the  23 
other  proceedings  in  the  case  and  entered  upon  the  docket  under  the  24 
name  of  the  estate  of  the  deceased.  25 


Sale  by 
guardian  or 
conservator  for 
maintenance 
or  investment. 
1093-4,  IS. 
S§3.4. 
1783.32.  §5; 
38.  §  4. 
1806,  102. 
1818,  112.  §  1. 
1826,  64. 
1828.  121. 
1830,  45: 
140,  §  1. 
R.  S.  72, 
§§  1,2. 
G.  S.  102,  I  26. 


SALES    BY    GUARDM.NS    AND    CONSERVATORS    FOR    MAINTENANCE    OR    IN- 
VESTMENT. 

Section  21.     If  the  income  of  the  estate  of  a  ward  is  insufficient  to  1 

maintain  him  and  his  family  or  if  it  appears  that  it  would  be  for  his  2 

benefit  that  his  real  estate  or  any  part  thereof  or  any  standing  or  grow-  3 

ing  wood  thereon  should  be  sold  and  the  proceeds  placed  on  interest  or  4 

invested  in  a  productive  security,  his  guardian  or  conservator  may  sell  5 

such  real  estate  or  wood  upon  obtaining  a  license  therefor  and  proceed-  6 

ing  as  hereinafter  provided.    If  standing  or  growing  wood  is  so  sold,  the  7 

guardian  or  conservator  may  grant  to  the  purchaser  the  privilege  of  8 

entering  upon  the  land  and  cutting  and  carrying  away  such  wood  within  9 

such  time  as  the  guardian  or  conservator  may  allow.  10 


1867,  231. 
P.  S.  140,  §  3. 


R.  L.  146,  §  19. 
1915,  23. 


7  Met.  388. 
184  Mass.  545. 


Forra  of 
petition  and 
license. 
R.  S.  72.  §  7. 
G.  S.  102,  §  27. 
P.  S.  140,  §  4. 
R.  L.  146,  §  20. 
1915,23. 


Section  22.     To  obtain  such  license,  the  guardian  or  conservator  1 

shall  file  a  petition  setting  forth  the  condition  of  the  estate  and  the  facts  2 

and  circumstances  on  which  the  petition  is  founded.     If  after  an  ex-  3 

amination,  on  the  oath  of  the  petitioner  or  otherwise,  the  court  finds  4 

that  it  would  be  for  the  benefit  of  the  ward  that  the  sale  should  be  made,  5 

it  may  grant  a  license  therefor,  specifying  therein  whether  the  sale  is  to  6 

be  made  for  the  maintenance  of  the  ward  and  his  family,  or  in  order  that  7 

the  proceeds  may  be  placed  on  interest  or  invested  as  aforesaid.  8 


Disposal  of 
proceeds  of 
sale  if  made 
for  main- 
tenance. 
R.  S.  72,  §  3. 
G.  S.  102,  §  29. 
P.  S.  140,  §  5. 
R.  L.  146,  §  21. 
1915,  23. 


Section  23.     If  the  sale  is  made  for  the  maintenance  of  the  ward  1 

and  his  family,  the  guardian  or  conservator  shall  apply  the  proceeds,  so  2 

far  as  necessary,  to  that  purpose,  and  shall  place  the  residue  on  interest  3 

or  invest  it  according  to  his  best  judgment  until  the  capital  is  wanted  4 

for  such  maintenance;  in  such  case,  the  capital  may  be  used  for  that  pur-  5 

pose  as  if  it  had  been  personal  property.  6 


Disposal  of 
proceeds  of 
sale  if  made 
for  investment. 
R.  S.  72,  §  4. 
G.  S.  102,  §  30. 
P.  S.  140,  §  6. 


Section  24.     If  the  property  is  sold  in  order  to  place  on  interest  or  1 

invest  the  proceeds,  the  guardian  or  conservator  shall  make  the  invest-  2 

ment  according  to  his  best  judgment,  or  in  pursuance  of  any  order  of  the  3 

court  relative  thereto.  R-  l.  uo,  §  22.  1915, 23.  8  Alien,  125.  4 


Property  of 
minor  may  be 
sold  by  person 
other  than  the 
guardian. 
1838.  100,  §  1. 
G.  S.  102,  §  31. 
P.  S.  140,  §  7. 
R.  L.  146,  5  23. 


Section  25.     A  sale  of  the  property  of  a  minor  for  the  purpose  of  1 

investment  may  be  made  upon  the  petition  of  the  guardian  or  any  friend  2 

of  the  minor,  and  the  court  may  authorize  the  guardian  or  another  person  3 

to  sell  and  convey  the  property.    The  provisions  of  this  chapter  relative  4 

to  licenses  and  sales  upon  the  petitions  of  guardians  shall,  except  as  5 

provided  in  the  following  section,  apply  to  licenses  and  sales  under  this  6 

section.  7 


pro?°ed8  of  Section  26.     If  the  sale  is  made  by  a  person  other  than  the  guardian,     1 

sdeinsuch       ^|jg  proceeds  .shall  forthwith  be  paid  to  the  guardian  upon  his  giving    2 
1838, 190,  §  2.    to  the  judge  of  probate  a  bond  with  sufficient  sureties  conditioned  to    3 


Chap.  202.]     sales,  etc.,  of  real  estate  by  executors,  etc.  2197 

4  account  for  such  proceeds.     If  there  is  no  guardian,  the  proceeds  shall  be  isso.  45. 

5  placed  on  interest  or  invested  by  the  person  authorized  to  sell  the  prop-  p.  s.  lio,' 1 1.^" 

6  erty,  in  like  manner  as  is  required  of  a  guardian.  r.  l.  us,  §  24. 

sales  by  guardl^n  of  non-resident  ward. 

1  Section  27.     A  guardian  or  conservator  appointed  within  the  com-  Transfer  ot 

2  monwealth,  whose  ward  removes  from  or  resides  out  of  the  commonwealth,  Son'-reaident 

3  may  sell  the  real  estate  of  his  ward  and  transfer  and  pay  over  the  whole  JJ^s' ^[7; 

4  or  any  part  of  the  proceeds  of  such  sale  to  a  guardian,  conservator,  ^^^^j-  ^°^^  §  ~^- 

5  trustee,  committee  or  other  official  appointed  by  competent  authority  i»;2!  isa. 

6  in  the  state  or  country  -uhere  the  ward  resides,  upon  such  terms  and  in  p.  s.'i39,'§  39. 

7  such  manner  as  the  probate  court  may,  after  notice  to  all  parties  inter-  1907, 219;  §  iT 

8  ested,  decree  upon  petition  filed  therefor.  wis,  23.  149  Mass.  57. 

MORTGAGES. 

1  Section  28.     The  probate  court  may,  upon  petition  and  after  notice  Mortgage  by 

2  to  all  persons  interested,  if  upon  a  hearing  it  appears  to  be  for  the  benefit  adml'mstrator. 

3  of  the  estate,  authorize  an  executor,  administrator  with  the  will  annexed  |§'^;|^^' 

4  or  administrator  to  mortgage  any  of  the  real  estate  for  the  purpose  of  J|^5',  151   ^ 

5  paying  debts,  legacies  or  charges  of  administration  or  for  the  purpose  p.s.'i34,  §  19. 

6  of  paying  an  existing  lien  or  mortgage  on  the  estate  of  the  deceased;  r.'l!  liei  § 26. 

7  or  it  may  authorize  such  executor  or  administrator  to  make  an  agreement 

8  for  the  extension  or  renewal  of  such  existing  mortgage. 

1  Section  29.     The  probate  court  may,  upon  petition  of  a  guardian  or  Mortgage  by 

2  conservator,  if,  after  notice  and  a  hearing,  it  appears  to  be  necessary  or  fonservatof. 

3  expedient,  authorize  him  to  mortgage  any  real  estate  of  his  ward.  JI71;  fg,;  5 1; 

1873.  280,  §1.  R.  L.  146,  §27.  153  Mass.  137. 

P.  S.  140,  §  11.  1915,  23. 

1  Section  30.     A  petition  under  either  of  the  two  preceding  sections  Form  of 

2  shall  set  forth  a  description  of  the  estate  to  be  mortgaged,  the  amount  dec'"°°  "" 


ecree. 


3  of  money  necessary  to  be  raised  and  the  purposes  for  which  it  is  required;  H'^f'i^^' 

4  and  the  decree  of  the  court  upon  such  petition  shall  fix  the  amount  for  J^IJ'  79^'5^2^- 

5  which  the  mortgage  may  be  given  and  the  rate  of  interest  which  may  ^-^'Pi'  ^  ^°' 

6  be  paid  thereon,  and  may  order  the  whole  or  any  part  of  the  money  r.l.  hg,  §28. 

7  secured  by  the  mortgage  to  be  paid  from  time  to  time  out  of  the  income 

8  of  the  property  mortgaged. 

LEASES. 

1  Section  31.    The  probate  court  may,  upon  the  petition  of  a  guardian  Lease  of 

2  or  conservator  setting  forth  a  description  of  the  real  estate  of  his  ward  ol^ward"  ^ 

3  which  he  desires  to  lease,  the  reason  why  it  is  necessary  or  expedient  \^^l'  Hf^  5  29. 

4  to  give  a  written  lease  thereof,  and  the  length  of  the  term,  if,  after  notice  i^i^-  ^^■ 

5  and  a  hearing,  it  appears  to  be  necessary  or  expedient,  authorize  such 

6  guardian  or  conservator  to  give  a  written  lease  of  said  real  estate,  and 

7  the  decree  of  the  court  shall  fix  the  term  and  the  amount  for  which  it 

8  may  be  leased. 

powers  of  foreign  executor,  etc. 

1  Section  32.    An  executor  or  administrator  appointed  in  another  state  Foreign  ciec- 

2  or  country  upon  the  estate  of  a  person  who  was  not  at  the  time  of  his  be°ncense'd''to^ 

3  death  a  resident  of  this  commonwealth  and  upon  whose  estate  adminis-  ll'^Tisll's'l!' 


2198 


SALES,   ETC.,  OF  REAL  ESTATE  BY  EXECUTORS,   ETC.        [ChAP.  202. 


R.  S. 

71,  ( 

5  21. 

G.S. 

102, 

§20. 

P.  S. 

134, 

1  lli. 

1901, 

315. 

R.  L. 

146, 

!§30. 

1918, 

257, 

§398 

1919, 

5. 

1920, 

2. 

tration  has  not  been  granted  in  this  commonwealtli,  duly  qualified  and  4 

acting,  may  file  an  authenticated  copy  of  the  record  of  his  appointment  5 

and  of  his  bond  in  the  probate  court  for  any  county  where  there  is  6 

real  estate  of  the  deceased;   and  such  executor  or  administrator,  after  7 

such  notice  to  the  state  treasurer,  creditors  and  all  other  persons  interested  8 

as  the  court  may  order,  may  be  licensed  to  sell  said  real  estate  or  an  9 

undivided  interest  therein  in  such  manner  and  upon  such  notice  as  the  10 

court  orders.     But  such  license  shall  not  be  granted  unless  the  court  11 

finds  that  six  months  have  expired  since  the  death  of  the  deceased,  that  12 

the  executor  or  administrator  has  given  a  sufficient  bond  and  will  be  13 

liable  to  account  for  the  proceeds  of  the  sale  in  the  state  or  country  14 

where  he  was  appointed,  and  that  no  creditor  or  other  person  interested  1.5 

will  be  prejudiced  thereby.    The  net  proceeds  of  such  sale,  after  deduct-  16 

ing  the  expenses  thereof  and  after  the  pajTnent  and  satisfaction  of  all  17 

claims  against  said  estate  in  this  commonwealth,  may  be  taken  by  said  18 

foreign  executor  or  administrator  out  of  the  commonwealth  to  be  ac-  19 

counted  for  in  the  court  in  which  he  received  his  appointment.  20 


Foreign 

guardian  or 

conservator 

may  be 

licensed  to  sell 

real  estate  of 

ward. 

1817,  182,  §  1. 

R.  S.  71,  §  31; 

72,  §  14. 

G.  S.  102,  §  3.3. 

P.  S.  140,  §  9. 

R.  L.  146,  §  31. 

1915,  23. 


Section  33.     If  a  person  who  resides  out  of  the  commonwealth  is  1 

under  guardianship  or  conservatorship  in  the  state  or  country  where  2 

he  resides  and  has  no  guardian  or  conservator  appointed  in  this  com-  3 

monwealth,  the  foreign  guardian  or  conservator  may  file  an  authenticated  4 

copy  of  his  appointment  in  the  probate  court  for  any  county  where  5 

there  is  real  estate  of  the  ward;   after  which  upon  petition  he  may  be  6 

licensed  to  sell,  mortgage  or  lease  the  real  estate  of  the  ward  in  any  7 

county,  for  the  purposes,  in  the  manner  and  upon  the  terms  provided  8 

in  this  chapter  for  a  guardian  or  conservator  appointed  in  this  com-  9 

monwealth,  except  as  provided  in  the  following  section.  10 


Bond  in 
certain  cases. 
1817,  182.  §  2. 
R.  S.  71,  §§  32, 
33;  72,  §  17. 
G.  S.  102, 
§§  34-36. 
P.  S.  140,  §  10. 
R.  L.  146,  §  32. 
1915.  23. 


Section  34.     If  the  court  finds  that  such  foreign  guardian  or  conser-  1 

vator  has  given  bond  with  sufficient  suret.y  or  sureties,  in  the  state  or  2 

country  where  he  was  appointed,  to  account  for  the  proceeds  of  such  3 

sale,  mortgage  or  lease,  and  if  an  authenticated  copy  of  such  bond  is  4 

filed  in  said  court,  no  further  bond  shall  be  required;   otherwise,  before  5 

such  license  is  granted,  he  shall  give  bond  payable  to  the  judge  of  said  6 

court  and  his  successors  with  sufficient  surety  or  sureties  and  with  con-  7 

dition  to  account  for  and  dispose  of  said  proceeds  according  to  law.  8 


proceedings  SECTION  35.     A  foreign  executor,  administrator,  guardian  or  conser- 

R  "'7\*"§  24  ■^'ator  who  has  been  licensed  to  sell  real  estate  shall,  except  as  otherwise 

g:  s.  102,  §  23.  provided,  give  notice  of  the  time  and  place  of  sale,  and  otherwise  proceed 

p.  s.'i3"47§  Ts.  as  is  provided  for  an  executor,  administrator,  guardian  or  conservator, 

r"l!  146,'  i  33.  appointed  in  this  commonwealth ;  and  the  evidence  of  such  notice  may 

1915,23.  i^g  perpetuated  in  the  same  manner. 


REFERENCES. 

Jurisdiction  of  land  court  to  determine  the  extent  and  the  propriety  of  the  ex- 
ercise of  powers  of  sale  vested  in  fiduciaries,  etc.,  Chap.  240,  §  27. 

Right  of  creditor  or  legatee  to  bring  suit  to  enforce  claim  in  favor  of  estate  where 
executor  or  administrator  refuses  to  do  so,  Chap.  230,  §  5. 

§  1.     Sales  by  the  state  treasurer  to  pay  inheritance  taxes,  Chap.  65,  §  31. 

Sales  by  executors,  administrators  or  trustees  to   pay  inheritance  taxes, 

Chap.  65,  §  21. 
Sales  to  pay  widows'  allowance,  Chap.  196,  §  2. 


Chap.  203.] 


TRUSTS. 


2199 


§   1. 


§     2. 
§  19. 


21. 


§  27. 
§§32, 


Sales  to  pay  widows'  or  husbands'  estate  of  $5,000,  Chap.  190,  §  1. 

Sales  by  public  administrators,  Chap.  194,  §  9. 

Sales  of  real  estate  to  reimburse  estate  for  payment  of  mortgage.  Chap. 

191,  §23. 
Liability  of  estates  tail,  Chap.  184,  §  4. 

Authority  of  public  administrators  to  sell  real  estate.  Chap.  194,  §  9. 
Proceedings  by  distributee  to  compel  payment  of  his  shares.  Chap.  197, 

§§  24,  26. 
Sales  to  pay  prior  debts  or  encumbrances.  Chap.  201,  §  37;  also  §  5  of  this 

chapter. 
Sale  of  cemetery  lots,  Chap.  204,  §  .5. 
Personal  property.  Chap.  201,  §  43. 
33.     Venue,  Chap".  204,  §  7. 


CHAPTER    203 


TRUSTS. 


Sect. 

creation  of  trusts. 

1.  Creation  of  trust  concerning  land. 

2.  Record  to  be  notice  of  trust. 

3.  Purchasers,  etc.,  without  notice. 

APPOINTMENT  AND  REMOVAL  OF  TRUSTEES. 

4.  Appointment  of  testamentary  trustee. 

5.  Appointment  to  fill  vacancy. 

6.  Trust  estate  to  vest  in  new  trustee  on 

his  giving  bond,  etc. 

7.  Bonds   of    trustees    appointed    by   su- 

preme judicial  or  superior  court. 

8.  Inventory   dispensed    with    in    certain 

cases. 

9.  Appraisal. 

10.  Letters  required  of  foreign   trustee  in 

certain  cases,  etc. 

11.  Same  subject.     Notice  to  trustee. 

12.  Removal  of  trustee. 

13.  Resignation  of  trustee. 

14.  Executor,  etc.,  of  former  trustee. 

AGENT  OF  NON-RESIDENT  TRUSTEE. 

15.  Agent  of  non-resident  trustee. 

SALE   OF  TRUST  ESTATE. 

16.  Order  for  sale,  etc.,  of  trust  estate,  how 

obtained. 

17.  Proceedings  in  case  of  persons  not  as- 

certained, etc.     Effect. 

18.  Property  held  in  trust  by  minors,  etc., 

may  be  sold  and  conveyed  in  certain 
cases. 

19.  Trustee  may  sell  personal  property  un- 

less otherwise  provided. 

20.  Sufficiency  of  receipt  of  trustee. 

21.  Corporations,  etc.,  not  bound  to  see  to 

execution  of  trusts  to  which  shares 
are  subject. 

22.  Brokers'     commission,     etc.,      to     be 

charged  to  principal. 


Sect. 

mortgage  of  trust  estate. 

23.  Trustees  may  be  authorized  to  mort- 

gage, etc. 

24.  Form  of  petition  and  decree. 

DISTRIBUTION   OF   TRUST   ESTATE. 

25.  Distribution  of  trust  estate. 

SETTLEMENT     OP     CERTAIN     TRUST     ESTATES 
HAVING   ABSENTEE   BENEFICIARIES. 

26.  Definition  of  absentee. 

27.  Petition  for  transfer  of  trust  estate  of 

absentee  in  certain  cases. 

28.  Notice. 

29.  Return  day  and  service. 

30.  Certain  persona  may  appear  and  an- 

swer, etc. 

31.  Guardians  ad  litem  may  be  appointed, 

etc. 

32.  Court  to  find  facts,  order  transfer  or  au- 

thorize sale  of  trust  estate,  etc. 

33.  New  trustees  to  give  bond  for  the  pay- 

ment   of    fund.      Endorsement    for 
costs  in  suit  on  bond. 

34.  Liability  and  powers  of  new  trustee. 
35    No  suit,  etc.,  to  be  brought  against  new 

trustee  after  six  years. 

36.  Trust  estates  may   be   distributed   to 

known  beneficiaries  in  certain  cases, 
etc. 

37.  Where  petition  shall  be  brought. 

38.  Court  may  decree  that  income  shall  be 

paid  to  certain  persons. 

39.  Certain  sections  to  apply  to  trusts  now 

existing  or  hereafter  established. 

TRUSTS  FOR  THE  BENEFIT  OF  CREDITORS. 

40.  Validity  of  certain  acts  of  trustees  for 

creditors,  subsequent  insolvency,  etc. 

41.  Same  subject.     Requirements  for  valid- 

ity. 

42.  Termination   of   trusts    for   benefit   of 

creditors  created  by  persons  deceased. 


2200 


TRUSTS. 


[Chap.  203. 


CREATION   OF  TRUSTS. 


Creation  of 
trust  concern- 
ing land. 
29  Car.  II., 
c.  3.  §  7. 
1692-3,  15,  §  S 
1783,37,  §  3. 


Section  1.     No  trust  concerning  land,  except  such  as  may  arise  or  1 

result  by  implication  of  law,  shall  be  created  or  declared  unless  by  a  2 

written  instrument  signed  by  the  party  creating  or  declaring  the  trust  3 

or  by  his  attorney.  R.  s.  S9,  §  30.  G.  s.  loo,  §  i9.  p.  s.  hi,  §  i.  4 


R.  L.  147,  §  1. 
16  Mass.  221. 
12  Pick.  233. 

4  Met.  537. 
2  Gush.  226. 

5  Gush.  431. 
10  Gush,  458. 

10  Allen,  15, 

11  Alien,  15,  542. 


R.  S.  59,  §  30. 

14  Allen,  523. 
97  Mass.  87. 
103  Mass.  484. 

109  Mass.  681. 

110  Mass.  392. 

112  Mass.  171. 

113  Mass.  372. 
118  Mass.  108. 


G.  S.  100,  §  19. 

129  Mass.  23. 
135  Mass.  299. 
137  Mass.  184. 
158  Mass.  146. 
160  Mass.  195,  538. 
193  Mass.  291. 
197  Mass.  270. 
199  Mass.  598. 


P.  S.  141,  §  1. 

205  Mass.  547. 
210  Mass.  430. 
225  Mass.  480. 
228  Mass.  533. 

230  Mass.  313. 

231  Mass.  324. 

232  Mass.  535. 

233  Mass.  428. 


Record  to  be 
notice  of  trust. 
R.  S.  59,  §  32. 
G.  S.  100,  §  21. 
P.  S.  141,  §  2. 
R.  L.  147,  §  2. 
168  Mass.  118. 
197  Mass.  270. 


Section  2.     If  a  trust  concerning  land  is  created  or  declared  by  such  1 

instrument,  the  recording  of  the  instrument  in  the  registry  of  deeds  for  2 

the  county  or  district  where  the  land  lies  shall  be  equivalent  to  actual  3 

notice  to  every  person  claiming  under  a  conveyance,  attachment  or  4 

execution  thereafter  made  or  levied.  5 


Purchasers, 
etc.,  without 
notice. 
.  R.  S.  59,  §  31. 
G.  S.  100,  §  20. 
P.  S.  141,  §3. 
R.  L.  147,  §  3. 
Ill  Mass.  270. 
130  Mass.  182. 


Section  3.     No  trust  concerning  land,  whether  implied  by  law  or  1 

created  or  declared  by  the  parties,  shall  defeat  the  title  of  a  purchaser  2 

for  a  valuable  consideration  without  notice  of  the  trust,  or  prevent  a  3 

creditor  who  has  no  notice  of  the  trust  from  attaching  the  land  or  from  4 

taking  it  on  execution  as  if  no  such  trust  existed.  5 

173  Mass.  378.  196  Mass.  509.  197  Mass.  270.  200  Mass.  498. 


Appointment 
of  testamentary 
trustee. 
1845,  158. 
1855,  307,  §  1. 
G.  S.  100,  §  7. 
P.  S.  141,  §4. 
R.  L.  147,  §  4. 


APPOINTMENT   AND    REMOVAL   OF   TRUSTEES. 

Section  4.  If  a  testator  has  omitted  in  his  will  to  appoint  a  trustee 
in  this  commonwealth  and  such  appointment  is  necessary  to  carry  into 
effect  the  provisions  of  the  will,  the  probate  court  may,  after  notice  to  all 
persons  interested,  appoint  a  trustee  who  shall  have  the  same  powers, 
rights  and  duties  and  the  same  title  to  tlie  estate  as  if  originally  ap- 
pointed by  the  testator. 


Section  5.     If  a  trustee  under  a  written  instrument  declines,  resigns, 


8.  no  adequate  provision  for  filling  the  vacancy  is  made  therein  the  supreme 
judicial  court,  the  superior  court  or  the  probate  court  shall,  after  notice 
to  all  persons  interested,  appoint  a  new  trustee  to  act  solely  or  jointly 
with  the  others  as  the  case  may  be.  12  Pick.  445.  4  Met.  330. 


Appointment 

to  rill  vacancy.  i  i    .  i*      i  Till 

1817, 190,         dies  or  is  removed  before  the  objects  01  the  trust  are  accompushed  and 

§§  40,  41,  -         - 

R.  S.  69,  g 

1,S43,  19. 

1852,  212. 

G.  S.  100,  §  9. 

1877,31. 

P.  S.  141,  §  5. 

R.  L.  147,  §  5. 


12  Gush.  41. 
1  Gray,  220. 
12  Allen,  293. 
102  Mass.  11. 


115  Mass.  424. 
117  Mass.  219. 

120  Mass,  412. 

121  Mass.  568. 


128  Mass.  272. 

129  Mass.  3.39,  513. 

148  Mass.  431. 

149  Mass.  92. 


186  Mass.  25. 
188  Mass.  510. 
227  Mass.  498. 
234  Mass.  374. 


Trust  estate 
to  vest  in  new 
trustee  on  his 
giving  bond, 

1817.  190,  §  40. 
R.  S.  69,  §  8. 
1843,  19. 
1852,  212. 
G.  S.  100. 
§§9,10. 
1878,  254,  §  1. 
P.  S.  141,  §  6. 
R.  L.  147,  §  6. 
2  Met.  243. 
0  Gray,  428. 


Section  G.     A  trustee  appointed  under  the  preceding  section,  or  ap-  1 

pointed  in  the  place  of  a  former  trustee  in  conformity  with  a  written  2 

instrument  creating  a  trust,  shall,  upon  giving  such  bond  as  may  be  3 

required,  have  the  same  powers,  rights  and  duties  and  the  same  title  4 

to  the  estate,  whether  as  sole  or  joint  trustee,  as  if  originally  appointed;  5 

and  the  court  may  order  any  conveyances  to  be  made  by  the  former  6 

trustee  or  his  representatives  or  by  the  other  remaining  trustees  which  7 

it  may  find  proper  or  convenient  to  vest  the  trust  estate  in  the  new  8 

trustee  either  solely  or  jointly  with  the  others.                s  Alien,  540.  9 


102  Mass.  11. 
115  Mass.  424. 
117  Mass.  219. 


129  Mass.  339. 
132  Mass.  405. 
134  Mass.  426. 


159  Mass.  484. 
171  Mass.  586. 
179  Mass.  223. 


186  Mass.  25. 
211  Mass.  327. 
224  Mass.  184. 


Chap.  203.]  teusts.  2201 

1  Section  7.     The  bond  required  of  a  trustee  appointed  by  the  su-  Bonds  of 

2  preme  judicial  or  superior  court  under  section  five   shall  be  payable  po"! n'te'd  by" 

3  to  the  commonwealth,  and  shall  otherwise  be  in  such  form  as  the  court  rS'^^reuperior 

4  shall  require.    Such  bond  may  be  enforced  in  the  name  of  the  common-  ^gjy'-gj 

5  wealth  by  the  attorney  general,  or  by  any  person  interested  therein  and 

6  duly  authorized  to  take  such  action  by  the  court  where  the  bond  is  filed 

7  after  notice  to  the  attorney  general.    Any  sums  recovered  shall  be  paid 

8  over  or  administered  as  the  court  directs. 

1  Section  8.     If  a  trustee  is  appointed  by  the  probate  court  as  the  inventory  dis- 

2  successor  of  a  prior  trustee,  the  court  may  dispense  with  the  making  and  ?|r"tam  caLs." 

3  return  of  an  inventory  if  it  appears  to  be  unnecessary,  and  in  such  case  i^'s.'el^ll*'' 

4  the  condition  of  the  bond  shall  be  altered  accordingly. 

G.  S.  100,  §  11.  p.  S.  141,  §  14.  R.  L.  147,  §  7. 

1  Section  9.     If  an  inventory  is  required  to  be  returned  by  a  trustee.  Appraisal. 

2  the  estate  and  effects  shall  be  appraised  in  the  manner  provided  by  sec-  o'.  s.  lob,  §  ik 

3  tion  six  of  chapter  one  hundred  and  ninety-five. 

p.  S.  141,  §  15.  R.  L.  147.  §  8. 

1  Section  10.     If  a  trustee  who  derives  his  appointment  or  authority  Letters  re- 

2  from  a  court  having  no  jurisdiction  in  the  commonwealth  holds  land  in  fllieiKn  trustee 

3  the  commonwealth  in  trust  for  persons  resident  therein,  he  shall,  upon  casesfet" 

4  petition  to  the  probate  court  for  the  county  where  the  land  lies,  and  p'^i.'ui.'iT 

5  after  notice,  be  required  to  take  out  letters  of  trust  from  said  court;  and  ^-  ^-  !*''•  §  ^^ 

6  upon  his  neglect  or  refusal  so  to  do,  the  court  shall  declare  such  trust 

7  vacant,  and  shall  appoint  a  new  trustee,  in  whom  the  tru.st  estate  shall 

8  vest  in  like  manner  as  if  he  had  been  originally  appointed  or  authorized 

9  by  said  court. 

1  Section  11.     The  notice  to  the  trustee  required  by  the  preceding  same  subject. 

2  section  may  be  given  by  serving  him  with  a  copy  of  the  petition,  and  trustee. " 

3  of  the  citation  thereon,  fourteen  days  at  least  before  the  return  day  of  p'.'i' i^i' ^ t 

4  such  citation,  or  in  such  other  manner  as  the  court  may  order.  ^-  ^-  ^*'''  ^  '"■ 

1  Section  12.     The  supreme  judicial  court,  the  superior  court  or  the  Removal  of 

2  probate  court  may,  upon  petition  of  a  party  beneficially  interested  in  isiV'^iso,  §  4i. 

3  a  trust  under  a  written  instrument,  and  after  notice  to  the  trustee  and  ig^f.^g,  ^^' 

4  all  persons  interested,  remove  the  trustee  if  it  finds  that  such  removal  Q^l'foo'js 

5  is  for  the  interests  of  the  beneficiaries  of  the  trust  or  if  he  has  become  ps  ^^7  |^,, 

6  insane  or  otherwise  incapable  or  is  unsuitable  therefor.  i  bray,  22b. 

101  Mass.  223.  114  Mass.  356.  121  Mass.  Sfi8.  150  Mass.  185. 

110  Mass.  225.  118  Mas3.  215.  145  Mass.  490.  224  Mass.  474. 

1  Section  13.     A  trustee  may  resign  his  trust,  and  the  guardian  or  Resignation 

2  committee  of  an  insane  trustee,  appointed  by  a  court  having  jurisdiction,  isi7"i'.i^a,§39. 

3  may  on  behalf  of  the  insane  person  resign  his  trust,  if  the  court  authorized  §;  |;  iob,S\ 

4  to  appoint  a  trustee  finds  it  proper  to  allow  such  resignation,  and  in  the  p^"s'f/f;|io 

5  case  of  an  insane  trustee  the  court  may  accept  such  resignation  without  R- 1-  i;*^.  §  12- 

6  notice  to  him. 

1  Section  14.     A  person  succeeding  to  a  trust  as  executor  or  adminis-  Executor,  etc., 

2  trator  of  a  former  trustee  shall  not  be  required  to  accept  such  trust.  truste™"^ 

1817, 190,  §  39.  G.  S.  100,  §  6.  R.  L.  147,  |  13. 

R.  S.  69,  §  6.  P.  S.  141,  §  11. 


2202 


TRUSTS. 


[Chap.  203. 


AGENT  OF  NON-RESIDENT  TRUSTEE. 


Agent  of 

non-resident 

tru8tee. 

18S9.  462. 

1893,  118. 

R.  L.  147.  §  U. 

235  Mass.  171. 


Section  15.     Sections  eight,  nine  and  ten  of  chapter  one  hundred  1 

and  ninety-five  shall  apply  to  non-resident  trustees,  except  that  said  2 

writing  shall  be  filed  in  the  clerk's  office  of  the  court  appointing  him  if  3 

appointed  by  a  court  other  than  the  probate  court.  4 


Order  for  sale, 
etc.,  of  trust 
estate,  how 
obtained. 
1820,  64,  §  3. 
R.  S.  69,  §  11. 
1846,  242. 
G.  S.  100, 
§§  14,  16. 
1S64,  168,  §  I. 
1869,  331. 
P.  S.  141,  §  20. 
R.  L.  147,  §  15. 
1907,  262. 
1917,  155;  279, 
§42. 

14  Allen,  24. 
103  Mass.  59. 
109  Mass.  1. 
119  Mass.  1. 
150  Mass.  377. 
182  Mass.  106. 
196  Mass.  217. 
199  Mass.  344. 
224  Mass.  474. 


SALE   OF  TRUST   ESTATE. 

Section  16.  If  the  sale  and  conveyance,  transfer  or  exchange  of  any  1 
real  or  personal  property  held  in  trust  appears  to  be  necessary  or  expe-  2 
dient,  the  supreme  judicial  court,  the  superior  court  or  the  probate  court  3 
may,  upon  petition  of  a  trustee  or  other  person  interested,  after  notice,  4 
order  such  sale  and  conveyance,  transfer  or  exchange  to  be  made,  and  5 
the  investment,  reinvestment  and  application  of  the  proceeds  of  such  6 
sale  in  such  manner  as  will  best  effect  the  objects  of  the  trust.  In  the  7 
case  of  personal  property  the  probate  court  may  make  such  order  with  8 
or  without  notice  and  without  the  appointment  of  a  guardian  ad  litem  9 
or  next  friend  as  provided  in  the  following  section.  The  fact  that  the  10 
trustee  has  the  necessary  authority  under  the  terms  of  the  instrument  11 
creating  the  trust  or  by  law  to  make  such  sale  and  conveyance,  transfer  12 
or  exchange  without  order  of  the  court  shall  not  bar  proceedings  under  13 
this  section,  but  nothing  herein  contained  shall  be  deemed  to  require  a  14 
license  where  such  authority  exists.  15 


Proceedings 
in  case  of 
persons  not 
ascertained, 
etc.     Effect. 

1863,  25. 

1864,  168,  §  2. 
P.  S.  141,  §  21. 
R.  L.  147,  §  16. 
146  Mass.  100. 


Section  17.  If  the  court,  upon  proceedings  under  the  preceding  1 
section,  finds  that  said  estate  may  be  held  in  trust  for,  or  that  a  remain-  2 
der  or  contingent  interest  therein  may  be  limited  over  to,  persons  not  3 
ascertained  or  not  in  being,  notice  shall  be  given  in  such  manner  as  the  4 
court  may  order  to  all  persons  who  are  or  may  become  interested  in  5 
such  estate,  and  to  all  persons  whose  issue,  not  then  in  being,  may  become  6 
so  interested;  and  the  court  shall  of  its  own  motion  in  every  such  case  7 
appoint  a  suitable  person  to  appear  and  act  therein  as  the  next  friend  8 
of  all  persons  not  ascertained  or  not  in  being,  who  are  or  may  become  9 
interested  in  such  estate,  and  the  provisions  of  sections  thirty-four  and  10 
thirty-five  of  chapter  two  hundred  and  one  consistent  herewith  shall  11 
apply  to  such  appointment.  A  conveyance  or  transfer  made  after  such  12 
notice  and  proceeding  shall  be  conclusive  upon  all  persons  for  whom  13 
such  guardian  ad  litem  or  next  friend  was  appointed.  14 


Property  held 
in  trust  by 
minors,  etc., 
may  be  sold 
and  conveyed 
in  certain 
cases. 
1845,  64. 
G.  S.  100,  §  15. 
1869,  331. 
P.  S.  141,  §22. 
R.  L.  147,  §  17. 
116  Mass.  377. 
119  Mass.  52. 
137  Mass.  252. 
163  Mass.  503. 


Section  18.  If  a  person  who  is  seized  or  possessed  of  real  or  personal  1 
property  or  of  an  interest  therein  upon  a  trust,  express  or  implied,  is  a  2 
minor,  insane,  out  of  the  commonwealth  or  not  amenable  to  the  process  3 
of  any  court  therein  having  equity  powers,  and  if  in  the  opinion  of  the  4 
supreme  judicial  court,  the  superior  court  or  the  probate  court  a  sale  5 
should  be  made  of  such  property  or  of  an  interest  therein,  or  a  con-  6 
veyance  or  transfer  should  be  made  thereof  in  order  to  carry  into  effect  7 
the  objects  of  the  trust,  the  court  may  order  such  sale,  conveyance  or  8 
transfer  made  and  may  appoint  a  suitable  person  in  the  place  of  such  9 
trustee  to  sell,  convey  or  transfer  the  same  in  such  manner  as  it  may  re-  10 
quire.  If  a  person  so  seized  or  possessed  of  an  estate  or  entitled  thereto  11 
upon  a  trust  is  within  the  jurisdiction  of  the  court,  he  or  his  guardian  12 
may  be  ordered  to  make  such  conveyances  as  the  court  orders.  13 


Chap.  203.]  trusts.  2203 

1  Section  19.     When  personal  property  is  subiect  to  a  trust  contained  Trustee  may 

,  ..  I  1.       1         ,j  J  11.     ''^''  personal 

2  in  a  written  instrument,  the  trustee  or  trustees  may,  unless  there  is  property  unless 

3  some  provision  therein  to  the  contrary  or  unless  it  would  be  inconsist-  vided""^''  '"^°" 

4  ent  with  the  purposes  of  the  trust,  change  the  investment  of  such  prop-  '®^*'  ^^'  ^  ^' 

5  erty  from  time  to  time  and  for  that  purpose  make  sales  and  transfers 

6  thereof. 

1  Section  20.     The  receipt  of  a  trustee,  or  of  any  one  or  more  of  o"f^^if°t''o( 

2  several  trustees,  for  any  money,  securities  or  other  personal  property  trustee. 

3  or  effects  payable,  transferable  or  deliverable  to  him  or  them  under  any 

4  trust  or  power  shall  be  a  sufficient  discharge  therefor  to  the  person 

5  paying,  transferring  or  delivering  it,  and  no  such  person  shall  be  bound 

6  to  see  to  the  application  thereof. 

1  Section  21.     A  company  or  corporation,  public  or  private,  or  quasi  Corporations, 

2  corporation,  or  the  managers  of  any  trust  shall  not  be  bound  to  see  to  to  see  to 

3  the  execution  of  any  trust,  express,  implied  or  constructive,  to  which  trusta  to°which 

4  any  of  its  shares,  bonds  or  securities  are  subject,  or  to  ascertain  or  in-  aubject^'^'^ 

5  quire  whether  the  trust  authorizes  a  transfer  thereof  by  the  holder,  but  ^®^^'  ''^'  ^  ^■ 

6  this  section  shall  not  be  a  protection  against  liability  for  knowingly 

7  participating  in  a  breach  of  trust. 

1  Section  22.    Unless  otherwise  expressly  provided  by  the  trust  instru-  Brokers'  com- 

2  ment,  trustees'  and  brokers'  commissions  and  other  expenses  properly  S' beTha'rg'iid 

3  incurred  and  paid  by  trustees  for  or  in  connection  with  the  sale,  exchange  igof'sji.'''' 

4  or  purchase  of  property  shall  be  charged  to  principal.     Commissions  227  Mass.  392. 

5  and  expenses  paid  by  trustees  for  negotiating  or  effecting  leases  for 

6  terms  longer  than  five  years  shall  be  charged  to  principal  in  the  first 

7  instance,  and  a  part  thereof  proportionate  to  the  number  of  years  of  the 

8  term  shall  be  repaid  from  income  to  principal  in  each  year  while  the 

9  lease  and  the  trust  co-exist. 


mortgage  of  trust  estate. 

1  Section  23.     The  court  having  jurisdiction  of  a  trust  created  by  a  Trustees  may 

2  written  instrument  may,  upon  petition  and  after  notice  to  all  persons  to  mortgage,'* 

3  interested,  if  upon  hearing  it  appears  to  be  for  the  benefit  of  the  trust  fgeg  45,  §  j 

4  estate,  authorize  trustees  to  mortgage  any  real  estate  held  by  them  in  ]^l~-  J^iJ,  §  1. 

PI  P  .  1  P         18/b,  199,  §  I. 

5  trust  for  the  purpose  01  paying  assessments  upon  the  trust  estate  for  p-  s.  141.  §  23. 

6  betterments  or  for  the  expense  of  repairs  and  improvements  on  such  n.  l!  147,  §  is. 

7  estate  made  necessary  by  such  betterments  or  by  the  lawful  taking  of  203  mSs'  328. 

8  such  estate  or  of  a  part  thereof  by  public  authority ;  for  the  purpose  of  ^^^  ^^^^^'  ^^^' 

9  paying  the  expense  of  erecting,  altering,  completing,  repairing  or  im- 

10  proving  a  building  on  such  estate;  or  for  the  purpose  of  paying  the  expense 

11  of  other  improvements  of  a  permanent  nature  made  or  to  be  made  on 

12  such  estate;   or  for  the  purpose  of  paying  an  existing  lien  or  mortgage 

13  on  such  estate  or  on  a  part  thereof;   or  it  may  authorize  such  trustees 

14  to  make  an  agreement  for  the  extension  or  renewal  of  such  existing 

15  mortgage. 

1  Section  24.     Such  petition  shall  set  forth  a  description  of  the  estate  Form  of 

2  to  be  mortgaged,  the  amount  of  money  necessary  to  be  raised  and  the  decree.""" 

3  purposes  for  which  such  money  is  required,  and,  if  made  to  a  probate  Ifi'iJ"' 


2204 


TRUSTS. 


[Cbl\p.  203. 


1876, 199,  §  2. 
P.  S.  141,  §  24. 
R.  L.  147,  §  19. 


court,  shall  be  made  in  the  county  where  trustees  were  appointed,  if  4 
the  trust  was  created  by  will,  or,  if  it  was  not  so  created,  in  the  county  5 
where  the  estate,  or  a  part  thereof,  which  is  the  subject  of  the  petition  6 
is  situated.  The  decree  of  the  court  upon  such  petition  shall  fix  the  7 
amount  for  which  the  mortgage  may  be  given  and  the  rate  of  interest  8 
which  may  be  paid  thereon,  -and  may  order  the  interest  and  the  whole  9 
or  any  part  of  the  money  secured  by  the  mortgage  to  be  paid  from  time  10 
to  time  from  the  income  of  the  property  mortgaged.  11 


Distribution 
of  trust  estate. 
1S98.  65,  §  1. 
R.  L.  147,  §  20. 
175  Mass.  239. 
227  Mass.  242. 


DISTRIBUTION   OF  TRUST   ESTATE. 

Section  25.     If  under  a  written  instrument  a  trust  estate  is  to  be  1 

distributed  in  whole  or  in  part,  the  probate  court,  upon  petition  of  a  2 

person  interested,  after  such  notice  as  it  may  direct,  may  order  the  3 

trustee  to  convert  said  estate,  both  real  and  personal,  or  either,  into  4 

cash  and  distribute  it  among  such  persons  as  under  such  instrument  5 

are  entitled  thereto.  6 


Definition  of 
absentee. 
1905.  326,  §  1. 
211  Mass.  198. 


SETTLEMENT    OF    CERTAIN     TRUST    ESTATES    HAVING    ABSENTEE    BENEFI- 
CIARIES. 

Section  26.     In  sections  twenty-seven  to  thirty-nine,  inclusive,  the  1 

word  "absentee"  shall  mean  a  beneficiary  who  has  disappeared,  ab-  2 

sconded  or  is  absent  from  the  commonwealth,  or  has  disappeared  or  3 

absconded  from  the  place  without  the  commonwealth,  where  he  was  last  4 

known  to  be,  and  has  no  known  agent  in  the  commonwealth,  and  it  is  5 

not  known  by  the  petitioner  where  he  is,  and  the  date  of  such  disap-  6 

pearance  or  absconding  and  of  the  time  when  it  was  last  known  by  the  7 

petitioner  where  he  was  and  when  he  was  last  heard  from  or  heard  of  8 

shall  have  been  more  than  fourteen  years  before  the  filing  of  the  petitions  9 

provided  for  in  said  sections.  10 


Petition  for 
transfer  of 
trust  estate 
of  absentee  in 
certain  cases. 
1905,  326,  §  1. 


Section  27.  If  a  trustee  appointed  under  a  will  by  a  probate  court  1 
of  the  commonwealth  holds  trust  estate  the  final  disposition  of  which  2 
depends  upon  the, death  of  an  absentee,  such  trustee,  or  any  person  who  3 
would  be  interested  in  the  trust  estate  or  any  portion  thereof,  if  such  4 
absentee  were  dead,  may  file  a  petition  under  oath  in  the  probate  court  5 
for  the  county  where  such  trustee  was  appointed,  stating  to  the  best  of  his  6 
knowledge  and  belief  the  name,  age,  last  known  occupation,  last  known  7 
residence  and  address  of  such  absentee,  and  the  last  place  where  he  was  8 
known  to  be,  the  date  and  circumstances  of  his  disappearance  or  ab-  9 
sconding,  and  the  names  and  residences  of  his  wife,  children  and  issue  10 
at  the  time  of  his  disappearance  or  since,  and  of  those  who  would  have  11 
been  his  heirs  at  law  and  next  of  kin  if  he  had  died  at  the  time  of  filing  12 
the  petition,  and  the  names  and  residence  of  the  family  of  such  absentee,  13 
and  of  other  persons  of  whom  inquiry  may  be  made,  and  containing  a  14 
schedule  or  statement  of  such  trust  estate,  real  and  personal,  so  far  as  15 
known,  and  the  names  and  residences,  so  far  as  known,  of  the  persons  16 
who  would  be  entitled  to  the  trust  estate  if  said  absentee  had  died  intestate  17 
within  the  commonwealth  on  the  day  fourteen  years  after  the  date  of  18 
his  disappearance.  Such  petition  shall  contain  as  parties  the  name  of  19 
such  trustee  and  of  such  absentee  and  the  names  and  residences,  so  far  20 
as  known  to  the  petitioner,  of  the  persons  who  would  be  entitled  to  the  21 
trust  estate  if  such  absentee  had  died  intestate  within  the  commonwealth  22 


Chap.  203.]  trusts.  2205 

23  on  said  day,  and  of  the  persons  who  under  his  will  or  otherwise  would 

24  be  entitled  to  the  trust  estate  if  he  had  then  died,  and  the  description  of 

25  the  class  of  persons,  if  their  names  or  existence  are  unknown,  who  might 

26  be  entitled  as  aforesaid,  and  all  persons  whom  it  may  concern,  excepting 

27  however  any  of  such  persons  or  parties  who  are  petitioners,  and  shall 

28  pray  that  the  trust  estate,  both  principal  and  any  accumulations  from 

29  unpaid  income  or  otherwise,  shall  be  transferred  to  the  persons  as  trus- 

30  tees  who  would  be  entitled  to  such  trust  estate  if  such  absentee  had 

31  died  within  the  commonwealth  on  the  day  fourteen  years  after  the  date 

32  of  his  disappearance,  and  in  the  proportions  to  which  each  would  be 

33  entitled. 


1905.  326,  §  2. 


1  Section  28.     If  the  petition  is  brought  by  such  trustee,  the  court  J^"*^"^ 

2  shall  issue  a  notice  as  hereinafter  provided.    If  brought  by  a  person  other 

3  than  the  trustee,  a  subpoena  shall  be  served  upon  the  trustee  as  in  equity, 

4  and  upon  proof  of  the  existence  of  such  trust  estate  as  aforesaid  by 

5  answer  of  such  trustee  or  otherwise,  which  answer  shall  be  filed  within 

6  one  month  after  the  return  day  of  such  subpoena  and  shall  set  forth  a 

7  schedule  or  statement  of  such  trust  estate,  the  court  shall  issue  a  notice 

8  as  hereinafter  provided.     The  notice  issued  by  the  court  shall  recite 

9  the  substance  of  the  petition,  and  shall  be  addressed  to  such  absentee 

10  and  to  all  persons  who  claim  an  interest  in  said  trust  estate,  and  to  all 

11  whom  it  may  concern,  and  to  all  the  persons  and  classes  of  persons 

12  named  as  respondents  in  the  petition,  citing  them  to  appear  at  a  time 

13  and  place  named  and  show  cause  why  said  estate  should  not  be  held 

14  and  disposed  of  under  sections  twenty-six  to  thirty-nine,  inclusive. 

1  Section  29.    The  return  day  of  said  notice  shall  be  not  less  than  six  Return  day 

2  months  after  the  date  of  such  order.    The  court  shall  order  a  copy  of  i905r326r§  3. 

3  said  notice  to  be  served  on  all  of  said  parties  who  may  reside  within  the  ^^'  '^'^^^^  ^®^' 

4  commonwealth,  within  sixty  days  after  the  date  of  such  notice.     Said 

5  notice  shall  be  published  in  one  or  more  newspapers  within  the  common- 

6  wealth,  and  also,  if  within  the  United  States,  in  one  or  more  newspapers, 

7  if  any  such  there  be,  in  the  town,  or  in  the  county,  in  case  there  is  no 

8  newspaper  published  in  such  town,  where  the  absentee  last  resided  or 

9  was  known  to  have  last  been.    Such  publication  shall  be  at  least  once  in 

10  each  of  three  successive  weeks,  within  thirty  days  after  the  date  of  the 

11  order  in  such  newspaper  or  newspapers  published  within  the  common- 

12  wealth,  and  within  sixty  days  after  the  date  of  the  order  in  such  news- 

13  paper  or  newspapers  published  without  the  commonwealth,  and  a  copy 

14  of  the  notice  shall  be  mailed  within  thirty  days  after  the  date  of  the 

15  order  to  the  la.st  known  address  of  such  absentee.    The  court  may  order 

16  further  notice  to  be  given  within  or  without  the  commonwealth.    Proof 

17  of  such  service  shall  be  made  by  affidavit,  or  in  such  other  manner  as  the 

18  court  may  order. 

1  Section  30.     The  respondents   and   the   absentee  and   any  person  Certain  persons 

2  claiming  an  interest  in  the  estate  may  appear  and  show  cause  why  the  "nlf ausw", 

3  prayer  of  the  petition  should  not  be  granted,  and  may  appear  and  answer  1905,326,  §  4. 

4  on  or  before  the  return  day  or  within  such  further  time  as  the  court  may 

5  allow.    By  the  description  in  the  notice,  "To  all  whom  it  may  concern", 

6  all  the  world  are  made  parties  defendant  and  shall  be  concluded  by  the 

7  order  or  decree. 


2206 


TRUSTS. 


[Chap.  203. 


Guardians  ad 
litem  may  be 
appointed,  etc. 
1905,  326,  §  5. 


Section  31.     The  court  may  appoint  a  suitable  person  to  appear  and  1 

act  in  said  proceedings  as  guardian  ad  litem  for  minors  and  for  all  persons  2 

and  classes  or  descriptions  of  persons  under  disability  or  not  ascertained  3 

or  unknown  or  not  in  being  or  out  of  the  commonwealth,  and  who  under  4 

the  provisions  of  the  will  in  regard  to  said  trust  estate  or  otherwise  may  5 

be  or  may  become  interested  in  said  trust  estate,  and  the  court  shall  6 

appoint  a  suitable  person  to  appear  and  act  therein  as  guardian  ad  litem  7 

of  said  absentee.     An  order  or  decree  in  such  proceedings,  made  after  8 

such  appointment,  shall  be  conclusive  upon  all  persons  for  whom  such  9 

guardian  ad  litem  was  appointed.  10 


Court  to  find 
facts,  order 
transfer  or 
authorize  sale 
of  trust  estate, 

1905,  326.  §  6. 


Section  32.     The  court  shall  find  the  date  of  the  disappearance  or  1 

absconding  of  the  absentee,  and  any  other  material  facts.    If  the  court  2 

finds  that  such  disappearance  has  been  continuous  for  more  than  fourteen  3 

years  next  preceding  the  filing  of  the  petition,  that  upon  the  evidence  4 

presented  the  absentee  has  not  been  heard  from  or  known  of  within  such  5 

fourteen  years,  and  that  the  facts  foimd  warrant  a  presumption  of  death,  6 

the  court  shall  order  the  trust  estate  transferred  to  the  persons  as  trustees  7 

to  whom,  and  at  the  time  or  times  and  in  the  shares  and  proportions  in  8 

which,  it  would,  under  the  provisions  of  the  trust  of  said  property  as  9 

set  forth  in  the  will,  be  distributed  if  said  absentee  had  died  within  the  10 

commonwealth  on  the  day  fourteen  years  after  the  date  of  the  disap-  11 

pearance  or  absconding,  as  found  and  recorded  by  the  court.    And  by  12 

such  order  all  the  right,  title  and  interest  of  said  absentee  in  said  trust  13 

estate  and  of  all  other  persons,  except  those  to  whom  as  trustees  said  14 

trust  estate  is  to  be  turned  over  and  paid  in  pursuance  of  said  order,  15 

shall,  as  against  the  said  trustee  appointed  under  the  will  by  the  probate  16 

court,  be  barred,  and  no  action,  suit  or  petition  in  any  form  shall  be  17 

begun  by,  or  for  the  benefit  of,  such  absentee  or  such  other  persons  against  18 

the  said  trustee  for  or  on  account  of  said  trust  estate  or  its  proceeds;  19 

and  the  court  may  authorize  the  trustee  to  sell  at  public  or  private  sale  20 

the  said  trust  estate  or  any  part  thereof  and  to  convert  it  into  nioney  21 

in  order  to  make  transfer  thereof  as  aforesaid.  22 


New  trustees 
to  give  bond 
for  thepay- 
ment  of  fund. 
Endorsement 
for  costs  in 
suit  on  bond. 
1905,  326,  §  7. 


Section  33.     Upon  the  transfer  in  pursuance  of  such  decree  to  each  1 

of  such  new  trustees  of  his  portion  of  the  trust  estate  or  fund,  he  shall  2 

give  bond  to  be  filed  in  the  court  in  said  case,  in  such  sum  and  with  or  3 

without  sureties  as  the  court  may  order,  to  the  judge  of  said  court  and  4 

his  successors  in  office  and  with  condition  substantially  that  he  will  pay  5 

and  deliver  to  such  absentee,  if  living,  or  to  any  persons  claiming  under  6 

him,  as  his  heu-s  at  law  or  as  named  in  his  will  as  recipients  of  such  trust  7 

estate  under  the  exercise  of  any  power  of  appointment  by  the  said  8 

absentee  or  persons  otherwise  claiming  the  fund,  the  fund  which  such  9 

trustee  has  received,  with  the  accumulations  thereof,  if  any,  less  reason-  10 

able  disbursements  and  compensation,  if  in  the  suit  on  said  bond  such  11 

absentee  or  other  person  shall  be  found  to  be  lawfully  entitled  to  said  12 

trust  estate  or  fund.     Such  bond  may  be  put  in  suit  by  such  absentee  13 

or  other  persons  for  his  or  their  own  benefit.     In  every  action  on  such  14 

bond  the  writ  shall  be  endorsed  by  the  persons  for  whose  benefit  or  at  15 

whose  request  the  action  is  brought  or  by  their  attorney,  and  the  en-  16 

dorsers  shall  be  liable  for  the  costs  of  the  suit,  and  execution  therefor  17 

shall  be  issued  against  them  and  not  against  the  judge  of  said  court.  18 


Chap.  203.]  trusts.  2207 

1  Section  34.    Such  new  trustee  shall  be  liable  only  for  gross  nee;li-  Liability  and 

,  .  .  ,  *'  PI  powers  of  new 

2  gence.    He  may  in  his  discretion  invest  and  reinvest  the  trust  fund  or  '^'''''Sjg 

3  estate  delivered  to  him  and  sell  real  and  personal  estate  at  public  auction 

4  or  private  sale  and  execute  instruments  necessary  to  transfer  the  title 

5  thereto.    If  such  new  trustee  dies  before  the  expiration  of  the  six  years 

6  named  in  the  following  section,  his  estate  shall  be  liable  on  the  bond 

7  required  of  such  trustee. 

1  Section  35.     After  the  expiration  of  sLx  years  from  the  filing  of  said  ^Ve^bro^'gh't 

2  bond  by  said  new  trustee  no  action,  suit  or  petition  in  any  form  shall  ^^"'f"^* "/'"' 

3  be  brought  against  him  on  said  bond  or  otherwise  by  said  absentee  or  six  years. 

4  person  claiming  under  him  or  otherwise  claiming  the  estate  in  the  hands      ^'  "  ' 

5  of  such  new  trustee. 

1  Section  36.     If  during  the  continuance  or  upon  the  termination  of  Trust  estates 

...  .  ,  r>      1        1  niay  be  dis- 

2  a  trust  under  a  will  or  written  instrument  one  of  the  beneficiaries  be-  tributed  to 

3  comes  an  absentee  as  defined  in  section  twenty-six,  the  trustee  may  pay  ficiarjes  in 

4  the  income  or  distribute  the  trust  estate  to  the  knowTi  beneficiaries  in  ^^J  "'^ '^''''^''' 

5  the  proportions  to  which  they  would  be  entitled  if  such  absentee  were  ^®°^'  ^^'^'  ^  "' 

6  present  in  the  commonwealth,  and  as  to  the  remaining  part  to  which 

7  such  absentee  would  be  entitled  if  present,  such  trustee  or  any  person 

8  who  would  be  interested  in  the  share  of  such  absentee  if  he  were  dead 

9  may  take  like  proceedings  with  reference  to  such  share  as  are  provided 
10  for  in  the  ten  preceding  sections. 

1  Section  37.     In  cases  brought  under  the  preceding  section  the  pe-  where  petition 

2  tition,  if  brought  on  account  of  a  trust  under  a  will,  shall  be  brought  bro'4ht 

3  in  the  probate  court  for  the  county  where  the  trustee  was  appointed,  ^'*°^'  ^**''  ^  ^^■ 

4  and,  if  brought  on  account  of  a  trust  under  a  written  instrument  other 

5  than  a  will,  shall  be  brought  in  the  probate  court  of  any  county  where 

6  any  of  the  parties  interested  in  the  trust  reside  or  where  any  of  the  land 

7  held  in  trust  is  situated.    If  any  probate  .court  has  assumed  jm-isdiction 

8  of  the  trust,  the  petition  shall  be  brought  in  that  court. 

1  Section  38.     The  court  may  at  any  time  during  the  continuance  of  de°c"eeTh?t 

2  the  trust  on  like  petition  and  other  proceedings  as  provided  in  sections  income  simii 

.  .  .  ....  ,  ,  ,  1   be  paid  to 

6  twenty-SLX  to  thirty-seven,  inclusive,  decree  that  any  income  then  accrued  certain  persons. 

4  or  thereafter  accruing  for  the  benefit  of  such  absentee  shall  be  paid  to  the       ^'   '"' 

5  persons  as  trustees  to  whom,  and  at  the  time  or  times  and  in  the  shares 

6  and  proportions  in  which,  it  would  be  distributed  if  said  absentee  had 

7  died  on  the  day  fourteen  years  after  the  date  of  the  disappearance  or 

8  absconding,  as  found  and  recorded  by  the  court. 

1  Section  39.     Sections  twenty-six  to  thirty-eight,  inclusive,  shall  apply  Cert.iin  sections 

2  to  existing  trusts  heretofore  established  as  well  as  to  trusts  hereafter  tnistTnow" 

3  established.  ISOS,  326,  §  lO.  h^rea^fer" 

established. 

TRUSTS   FOR  THE   BENEFIT   OF   CREDITORS. 

1  Section  40.     If  a  debtor  residing  in  the  commonwealth  has  made  Validity  of 

2  an  assignment  to  a  trustee  for  the  benefit  of  his  creditors,  the  acts  of  Sf"?ustee^ 

3  the  trustee  thereunder  in  protecting  and  caring  for  the  property  and  iubsermont"' 

4  converting  it  into  money,  if  done  in  good  faith  and  with  reasonable  i"^°7^'3!Jo*^'§^'"'' 


2208 


TRUSTS. 


[Chap.  203. 


isT^Mill' IqI'"  judgment  and  discretion,  shall,  subject  to  the  following  section,  be  valid  5 

221  Mass.  384!   notwithstanding  subsequent  proceedings  in  insolvency  by  or  against  6 

the  debtor,  and  the  assignee  in  insolvency  shall,  if  such  assignment  is  7 

avoided  by  him,  recover  the  net  amount  of  money  received  for,  or  the  8 

price  of,  the  property  sold  and  converted  by  such  trustee  instead  of  the  9 

property  itself.  10 


Same  subject. 
Requirements 
for  validity. 
1887,  340, 
§§  1.  2. 
1897,  326. 
R.  L.  147,  §  22. 
187  Mass.  296. 
201  Mass.  190. 

220  Mass.  122. 

221  Mass.  384. 


Termination 
of  trusts  for 
benefit  of 
creditors 
created  by 
persons 
deceased. 
1850,  241, 
§§  1,  3. 
G.  S.  100, 
§§  17,  18. 
P.  S.  141, 
§§  25,  26. 
R.  L.  147,  § 


Section  41.  The  preceding  section  shall  not  apply  to  the  acts  of  such  1 
trustee  unless  the  assignment  conveys  all  the  property  and  estate  of  the  2 
debtor  wherever  situated,  either  within  or  without  the  commonwealth,  3 
not  exempt  from  attachment  by  the  laws  thereof,  and  provides  for  its  4 
distribution  in  substantial  conformity  with  chapter  two  hundred  and  5 
sixteen;  nor  unless  a  majority  in  number  and  value  of  the  creditors,  6 
whose  claims  are  neither  secured  nor  preferred  by  said  chapter,  have  7 
assented  in  writing  to  the  assignment;  nor  unless  the  trustee,  before  8 
proceeding  to  act  and  immediately  on  the  acceptance  of  his  trust,  gives  9 
written  notice  by  mail  or  otherwise  to  all  known  creditors  of  the  debtor  10 
of  such  assignment  and  his  acceptance  thereof,  and  deposits  with  the  11 
clerk  of  the  town  where  the  principal  business  of  the  debtor  is  carried  on  12 
a  copy  of  such  assignment,  which  shall  be  filed  and  indexed  by  said  clerk  13 
upon  receiving  a  fee  of  one  dollar  therefor.  14 

Section  42.     If,  upon  petition  or  otherwise,  the  probate  court  for  the  1 

county  where  letters  testamentary  or  of  administration  have  been  granted  2 

on  the  estate  of  a  deceased  person  finds  that  such  person  in  his  lifetime  3 

made  a  conveyance  of  real  estate  in  the  commonwealth  in  trust  for  the  4 

benefit  of  his  creditors,  and  the  trustee  certifies  that  all  the  debts  secured  5 

by  such  conveyance  and  due  to  persons  other  than  himself  have  been  paid  6 

or  otherwise  adjusted  to  the  satisfaction  of  the  creditors  so  far  as  known  7 

2S-  and  that  he  desires  to  settle  his  trust  account  and  to  terminate  the  trust,  8 

the  court  shall  appoint  a  time  and  place  for  hearing  all  persons  inter-  9 

ested  in  such  trust,  of  which  notice  shall  be  given  by  publication  in  a  10 

newspaper  published  in  the  county,  or  otherwise,  as  the  court  orders.  11 

Upon  such  hearing  the  court  may  terminate  the  trust  so  far  as  the  credi-  12 

tors  and  persons  claiming  under  them  are  concerned,  may  discharge  13 

such  real  estate  from  the  trust,  may  settle  the  trust  account,  and  make  14 

any  further  order  as  to  the  disposition,  distribution  or  partition  of  the  15 

remaining  trust  estate,  consistent  with  the  provisions  of  the  original  16 

instrument  creating  the  trust.    This  section  shall  not  apply  to  any  case  17 

where  the  instrument  creating  the  trust  does  not  bear  date  more  than  18 

six  years  previous  to  the  time  appointed  for  the  hearing;    nor  shall  it  19 

affect  the  operation  of  the  insolvent  laws  of  the  commonwealth.  20 


REFERENCES. 

Right  of  national  bank  or  trust  company  to  be  appointed  trustee,  Chap.  172, 
§  52,  and  reference  at  end  of  chapter. 

Limitation  of  actions  against  trustees  for  their  own  acts,  Chap.  260,  §  11. 

Trustees  who  hold  funds  given  to  city  or  town  for  charitable,  etc.,  purposes. 
Chap.  68,  §§  13,  14. 

Trustee  to  hold  damages  recoverable  under  Chap.  79,  where  property  is  subject  to 
contingent  remainder,  etc.,  Chap.  79,  §§  24,  25. 

Funds  held  by  savings  banks  in  trust  for  shade  trees,  playgrounds,  cemeteries  and 
drinking  fountains,  Chap.  168,  §§  37,  38. 

Appointment  of  trustee  to  sell  land  subject  to  contingent  remainders,  etc..  Chap. 
183,  §§  49-51. 

Appointment  of  trustee  to  hold  proceeds  of  land  subject  to  a  charge  for  life,  Chap. 
183,  §  52. 


Chap.  204.]    general  provisions  relatr'e  to  sales,  compromises,  etc. 


2209 


Jurisdiction  of  land  court  to  determine  extent  and  propriety  of  exercise  of  power 
of  sale,  etc.,  held  by  trustees,  etc..  Chap.  240,  §§  27-29. 

Authority  of  probate  court  to  order  the  transfer  of  a  trust  fund  to  a  trustee  in 
another  state,  where  all  the  beneficiaries  are  non-residents.  Chap.  206,  §  29. 

Sales  generally  by  trustees.  Chap.  204. 

Sale  to  pay  inheritance  taxes.  Chap.  65,  §  21. 


CHAPTER    204 


GENERAL  PROVISIONS  RELATIVE  TO  SALES,  MORTGAGES,  RELEASES, 
COMPROMISES,   ETC.,   BY  EXECUTORS,   ETC. 


Sect. 

general  provisions. 

1.  Executor,  etc.,   to  convey  real   estate 

which  testator,  etc.,  had  agreed  to 
convey. 

2.  Sale  of  real  estate  dependent  upon  con- 

sent of  a  deceased  person. 

3.  Foreign  executor,  etc.,  may  be  licensed 

to  receive   and   dispose   of   personal 
property. 

4.  How  executor,  etc..  may  release  vested 

or  contingent  interests. 

5.  Sale  or  release  of  lots  in  cemeteries. 

6.  Form  of  mortgage  given  under  license 

of  court. 

7.  Venue  of  petitions  for  sales  by  foreign 

executor,  etc. 

8.  License  to  sell  to  remain  in  force  for  one 

year. 

9.  Surplus  of  proceeds  of  sales  to  be  treated 

as  real  estate. 

10.  Costs  in  case  of  objection  to  the  grant- 

ing of  a  license. 

11.  Examination  of  persons  Ucensed  to  sell 

land. 

12.  Sale  of  church,  etc.,  property. 


COMPROMISES,    ETC. 

13.  Compromises  by  executors,  etc., 
authority  of  probate  court. 


under 


Sect. 

14.  Executors,  etc.,  may  be  authorized  to 

compromise  controversies,  etc. 

15.  Compromise  of  wills. 

16.  Protection  of  contingent  interests. 

17.  Effect  of  compromise. 

IS.  Minor,  etc.,  to  be  represented  by  guard- 
ian, etc. 


IRREGUL.\R    and     INVALID    SALES,     ETC.,     BT 

executors,  etc. 

19.  Irregular,  etc.,  sale  not  to  be  avoided  in 

certain  cases. 

20.  Where   contestant   claims   under    title. 

paramount. 

21.  When  adjudication  as  to  debts  final. 

22.  Action  or  entry  for  recovery  of  land 

sold  by  executor,  etc. 

23.  Confirmation,  etc.,  of  void  acts  of  ex- 

ecutor, etc. 

24.  Ratification  of  doubtful  acts  of  execu- 

tor, etc. 

25.  Liability  of  irregularly  appointed  exec- 

utor, etc.,  to  account. 

26.  Failure  of  proof  of  notice  of  appoint- 

ment or  sale,  how  remedied. 


GENERAL   PROVISIONS. 

1  Section  1.     If  a  person  who  has  entered  into  a  written  agreement 

2  for  the  conveyance  of  real  estate  dies  or  is  put  under  guardianship  or 

3  conservatorship  before  making  such  conveyance,  the  probate  court  shall 

4  have  jurisdiction  concurrent  with  the  supreme  judicial  and  superior  courts 

5  to  enforce  specific  performance  of  such  agreement;  and,  upon  a  petition 

6  therefor  by  any  person  interested  in  the  conveyance,  shall,  after  notice, 

7  if  upon  hearing  it  appears  that  the  deceased,  were  he  living,  or  the  ward, 

8  were  he  not  under  guardianship  or  conservatorship,  would  be  required 

9  to  make  the  conveyance,  order  the  e.xecutor  or  administrator  or  the 

10  guardian  or  conservator  to  make  the  same,  which  conveyance  shall  have 

1 1  like  force  and  effect  as  if  made  by  the  person  who  agreed  to  convey. 


Executor,  etc., 
to  convey  real 
estate  which 
testator,  etc, 
had  agreed  to 
convey. 
C.  L.  296,  §  3. 
1783,  32,  §  4. 
R.  S.  74, 
§§  8-13. 
1855,  374. 
1S59,  36. 
G.  S.  117, 
§§  5,  6. 
P.  S.  142,  §  1. 
1883,  223. 
R.  L.  148,  I  1. 
1915.  23. 
8  Gray,  542. 


108  Mass.  5.52. 
119  Mass.  482. 


173  Mass.  450. 
179  Mass.  451. 


184  Mass.  534. 
226  Mass.  224. 


2210 


GENERAL  PROVISIONS  RELATIVE  TO  SALES,  COMPROMISES,  ETC.      [ChAP.    204. 


Sale  of  real 
estate  depend- 
ent upon 
consent  of  a 
deceased 
person. 
1871,  329. 
P.  S.  142.  §  2. 
R.  L.  148.  §  2. 


Section  2.     If,  under  a  will,  the  sale  of  real  estate  by  a  trustee,  execu-  1 

tor  or  administrator  with  the  will  annexed  is  dependent  upon  the  con-  2 

sent  of  a  person  who  has  deceased,  the  probate  court  having  juristliction  3 

of  the  settlement  of  the  estate  may,  in  its  discretion,  and  if  all  parties  4 

interested  assent,  authorize  the  sale  and  conveyance  of  such  real  estate  5 

in  like  manner  as  if  no  such  consent  had  been  required.  6 


Foreign  execu- 
tor, etc.,  may 
be  licensed 
to  receive  and 
dispose  of 
personal 
property. 
1880,  220. 
P.  S.  142,  §  3. 
1900,  371,  §  3. 
R.  L.  15,  §  14: 
148,  §  3. 
1907,  563. 
§§  17,  26. 
1909.  490, 
IV,  §  17. 
1915,  23. 
1919,  350,  §  53. 


Section  3.  An  executor,  administrator,  guardian,  conservator  or  1 
trustee  duly  appointed  in  another  state  or  in  a  foreign  country  and  duly  2 
qualified  and  acting,  who  may  be  entitled  to  any  personal  property,  3 
situated  in  the  commonwealth,  may  file  an  authenticated  copy  of  his  4 
appointment  in  the  probate  court  for  any  county  where  there  is  real  5 
estate  of  his  trust,  or,  if  there  is  no  such  real  estate,  in  any  county  where  6 
there  is  personal  property  of  his  trust,  and  may  upon  petition  to  said  7 
court,  after  such  notice  to  creditors  and  all  persons  interested  as  the  8 
court  may  order,  be  licensed  to  receive  or  to  sell  by  public  or  private  9 
sale,  upon  such  terms  and  to  such  person  or  persons  as  he  shall  think  fit,  10 
or  otherwise  to  dispose  of,  and  to  transfer  and  convey,  shares  in  a  cor-  11 
poration  or  other  personal  property,  if  the  court  finds  that  there  is  no  12 
executor,  administrator,  guardian,  conservator  or  trustee  appointed  in  13 
the  commonwealth  who  is  authorized  so  to  receive  and  dispose  of  such  14 
shares  or  estate,  and  that  such  foreign  executor,  administrator,  guardian,  15 
conservator  or  trustee  will  be  liable,  upon  and  after  such  receipt  or  sale,  16 
to  account  for  such  shares  or  estate,  or  for  the  proceeds  thereof,  in  17 
the  state  or  country  where  appointed;  and  that  no  person  resident  in  18 
this  commonwealth  and  interested  as  a  creditor  or  otherwise  objects  to  19 
the  granting  of  such  license  or  appears  prejudiced  thereby;  but  no  such  20 
license  shall  be  granted  to  a  foreign  executor  or  administrator  until  the  21 
expiration  of  six  months  after  the  death  of  his  testator  or  intestate.  The  22 
commissioner  of  corporations  and  taxation  shall  be  made  a  party  to  any  23 
petition  by  a  foreign  executor,  administrator  or  trustee  under  this  sec-  24 
tion,  and  shall  be  given  fourteen  days'  notice  of  the  same.  25 


?tc*  ma'"y "*"■  Section  4.  An  exccutor,  administrator,  guardian,  conservator  or 
release  vested     trustec  may,  after  the  notice  required  upon  a  petition  by  him  for  a  license 

or  contingent  ,,  ,  i        •        i  i  i  i  i  i     i- 

interests.  to  Sell  rcal  estate,  be  authorized  by  the  probate  court  to  release  and  dis- 

1855   307    §  2  .    . 

G.  s.'  loi!  §  11.  charge,  upon  such  terms  and  conditions  as  may  appear  to  be  proper,  a 
p.  s.'  142,'  §  4.  vested,  contingent  or  possible  right  or  interest,  if  such  release  or  discharge 
1915;  23^'  *  *'    appears  to  be  for  the  benefit  of  the  person  or  estate  which  he  represents. 

190  Mass.  459. 


Sale  or  release 
of  lot.8  in 
cemeteries. 
1869,  35. 
P.  S.  142,  §  5. 
R.  L.  148,  §  5. 
1915,  23. 


Section  5.     An   executor,   administrator,   guardian,    conservator  or  1 

trustee  may  be  authorized  by  the  probate  court,  after  notice  to  all  persons  2 

interested,  to  sell  and  convey  or  release  upon  such  terms  and  in  such  3 

manner  as  the  court  may  order,  lots  in  cemeteries  belonging  to  the  person  4 

or  estate  by  him  represented.  5 


Form  of  mort- 
gage given 
under  license 
of  court. 
1864,  212,  5  4. 
1869,  219,  S  2; 
451,  §  2. 


Section  6.     A  mortgage  given  by  an  executor,  administrator,  guard-  1 

ian,  conservator  or  trustee  under  license  of  court  may  contain  a  power  2 

of  sale,  and  every  such  mortgage  shall  state  that  it  is  made  under  license  3 

of  court  and  the  date  of  such  hcense.  4 

3,  4; 


1871,  282,  §  3. 

1872,  370,  I  3. 

1873,  280,  §  2. 


1876,  79, 
199,  §  3. 
P.  S.  142,  §  6. 


R.  L.  148,  §  6. 

1915.  23. 

11  Gray,  492. 


Chap.  204.]    general  provisions  relative  to  sales,  compromises,  etc.  2211 

1  Section  7.     All  proceedings  in  probate  courts  relative  to  sales  by  a  venueof 

2  foreign  executor,  administrator,  guardian,  conservator  or  trustee  shall  be  saies'by°  °' 

3  in  the  county  where  an  authenticated  copy  of  his  appointment  is  first  executor,  etc. 

4  filed.  1S17,  182,  §  1.  R.  S.  71,  §  25;  72,  §  16. 

G.  S.  102,  §  42.  p.  S.  142,  §  7.  R.  L.  148,  §  7.  1915,  2X. 

1  Section  8.     No  license  to  sell  bv  an  e.xecutor,  administrator,  guard-  License  to  seii 

-.  ^  pto  remain  in 

2  lan,  conservator  or  trustee  shall  be  in  force  tor  more  than  one  year  after  force  for  one 

3  the  granting  thereof,  except  as  provided  in  section  eighteen  of  chapter  is'n'.  i9o,  §  12. 

4  two  hundred  and  two.  R.  s.  71,  §  lO;  72,  §  13.  g.  s.  102,  §  43. 

p.  S.  142.  §  8.  R.  L.  148,  §  S.  1915,  23.  146  Mass.  100. 


1  Section  9.     In  every  sale  of  the  real  estate  of  a  deceased  person  or  a  .surplus  of 

2  ward  by  an  executor,  administrator,  guardian  or  conservator,  the  surplus  LTes'^to  be 

3  of  the  proceeds  remaining  on  the  final  settlement  of  the  accounts  shall  estate'' ""  ^'^^ 

4  be  considered  as  real  estate,  and  shall  be  disposed  of  to  the  same  persons  1!;  ^j/s'  iV^' 

5  and  in  the  same  proportions  to  whom  and  in  which  the  real  estate  if  not  pgA'^'lo*- 

6  sold  would  have  descended  or  have  been  disposed  of  by  law.  h-  l-  hs.  §  9- 

1915,23.  133  Mass.  111.  154  Mass.  7.  233  Mass.  481. 

1  Section  10.     If  a  person  appears  and  objects  to  the  granting  of  a  Costs  in  case 

2  license  to  sell  real  estate  and  the  court  finds  that  either  the  petition  or  the°gran'tmg'°f 

3  the  objection  thereto  is  unreasonable,  it  may  award  costs  to  the  prevail-  nss^gl;  5  g. 

4  ing  party.  R.  S.  7i,  §  36;  72,  §  is. 

G.  S.  102,  §  45.  p.  S.  142,  §  10.  R.  L.  148,  §  10. 

1  Section  11.     A  person  authorized  to  sell  land  under  license  of  court  Examination 

2  shall  be  required,  upon  petition  to  the  probate  court  by  an  heir,  creditor,  iicen"ld'to 

3  ward  or  other  person  interested  in  the  estate,  to  answer  on  oath  as  to  r.'s."?!,' § 39; 

4  all  matters  relative  to  his  exercise  and  fulfilment  of  said  license  as  fully  H'J^W  5 1 

5  as  he  is  liable  to  account  and  be  examined  relative  to  personal  property.  '■  |- 102.  §  49. 

6  If,  in  relation  to  the  exercise  of  such  license  or  to  a  sale  under  it,  there  is  R-  l.  us.  |  11. 

7  any  neglect  or  misconduct  in  the  proceedings  of  such  person  by  which 

8  a  person  interested  in  the  estate  suffers  damage,  such  interested  person 

9  may  recover  compensation  therefor  on  the  probate  bond  or  otherwise  as 
10  the  case  may  require. 

1  Section  12.    The  supreme  judicial  court,  upon  petition  of  a  party  Saie  of  church, 

2  interested  and  after  notice,  may  order  the  sale  or  transfer  of  any  real  or  isq?.''!^!"^*^' 

3  personal  property  held  for  churches,  cemeteries  or  other  like  trusts  and  ^'  ^'  ^*^'  ^  ^^' 
A  the  investment  or  disposition  of  the  proceeds,  and  may  make  orders  and 

5  decrees  necessary  to  secure  the  rights  of  owners  of,  or  of  other  persons 

6  claiming  an  interest  in,  pews  or  in  tombs  or  lots  in  cemeteries. 

COMPROMISES,    etc. 

1  Section  13.     The  probate  court  may  authorize  an  executor,  adminis-  Compromises 

2  trator,  guardian,  conservator  or  trustee  to  adjust  by  arbitration  or  com-  eu-t'undS'^^' 

3  promise  any  demand  in  favor  of  or  against  the  estate  by  him  represented,  probate'oourt. 

1817,  190,  §  21.  1838.  92.  P.  S.  142,  §  12.  9  Allen,  173. 

1826,  136.  1855,  37;  432.  R.  L.  148,  §  13.  137  Mass.  94. 

1835,  93-  G.  B.  101,  §  10.  1915,  23.  178  Mass.  125. 
R.  S.  65,  §  10;  79,  §  17. 

1  Section  14.     The  supreme  judicial  court  or  the  probate  court  may  Executors,  etc.. 

2  authorize  an  executor,  administrator,  guardian,  conservator  or  trustee  to  alTthorized  to 


2212 


GENERAL  PROVISIONS  RELATIVE  TO  SALES,  COMPROMISES,  ETC.      [ChAP.   204. 


compromise 
controversies, 

1861,  174,  §  1. 
P.  S.  142,  §  13. 
R.  L.  148,  §  14 
1903,  222.  • 
1907,  447. 
4  Allen,  466. 
170  Mass.  32S. 
211  Mass.  334. 
215  Mass.  220. 
225  Mass.  12. 
230  Mass.  131. 


adjust  by  arbitration  or  compromise  any  controversy  or  question  as  to  3 
the  administration  or  distribution  of  the  estate  in  his  possession,  or  as  to  4 
his  accounting  therefor,  or  as  to  any  matter  relating  to  said  estate,  or  as  5 
to  the  construction  of  a  will  or  trust  created  by  a  wTitten  instrument,  6 
or  as  to  his  power  and  authority  thereunder,  or  as  to  any  controversy  7 
growing  out  of  said  will  or  instrument  that  may  arise  between  him  and  8 
any  other  person  or  the  guardian  or  conservator  of  any  person  interested  9 
under  said  will  or  instrument  or  in  said  estate,  or  between  claimants  or  10 
the  guardians  or  conservators  of  claimants  to  said  estate,  to  which  arbi-  1 1 
tration  or  compromise,  in  the  form  of  an  agreement  in  writing,  such  12 
executor,  administrator,  guardian,  conservator  or  trustee,  and  all  other  13 
persons  in  being  and  of  full  age  and  not  under  guardianship,  and  the  14 
guardian  or  conservator,  if  any,  of  all  other  persons  who  claim  a  vested  15 
interest  in  said  estate,  whose  interests  will,  in  the  opinion  of  the  court,  16 
be  affected  by  the  proposed  arbitration  or  compromise,  shall  be  parties.  17 
An  award  or  compromise  made  in  writing  in  such  a  case,  if  found  by  the  18 
court  to  be  just  and  reasonable  in  its  effects  upon  the  interests  of  minors  19 
and  persons  under  guardianship  or  conservatorship,  and  upon  any  future  20 
contingent  interests  in  said  estate,  shall,  when  appro\'ed  by  the  court,  21 
be  valid  and  binding  upon  all  such  interests  and  upon  the  original  parties  22 
to  said  agreement,  and  a  decree  shall  be  entered  accordingly.  If  the  23 
court  finds  that  any  minor  or  person  without  legal  capacity  or  under  24 
guardianship,  or  any  future  contingent  interests,  may  be  affected,  it  may  25 
appoint  some  person  or  persons  to  represent  such  minor  or  person  without  26 
legal  capacity  or  under  guardianship,  or  future  contingent  interests  in  27 
such  controversy,  question,  administration  or  account  upon  such  con-  28 
ditions  as  to  costs  as  it  may  order.  29 


Compromise 
of  wills. 
1864,  173,  §  1. 
P.  8.  142,  §  14. 
1889,  266, 
R.  L.  148,  §  15. 

1902,  638. 

1903,  222. 

1918,  257, 
§399. 

1919,  5. 

1920,  2. 

128  Mass.  203. 
152  Mass.  254. 
180  Mass.  303. 

151  Mass.  501. 

152  Mass.  208. 
188  Mass.  190. 
199  Mass.  330. 
204  Mass.  471. 
209  Mass.  459. 
211  Mass.  288. 


Section  15.     The  supreme  judicial  court  or  the  probate  court  may  au-  1 

thorize  the  persons  named  as  executors  in  an  instrument  purporting  to  2 

be  the  last  will  of  a  person  deceased,  or  the  petitioners  for  administra-  3 

tion  with  such  will  annexed,  to  adjust  by  arbitration  or  compromise  any  4 

controversy  between  the  persons  who  claim  as  devisees  or  legatees  under  5 

such  will  and  the  persons  entitled  to  the  estate  of  the  deceased  under  the  6 

laws  regulating  the  descent  and  distribution  of  intestate  estates,  to  which  7 

arbitration  or  compromise  the  persons  named  as  executors,  or  the  pe-  8 

titioners  for  administration  with  the  will  annexed,  as  the  case  may  be,  9 

those  claiming  as  devisees  or  legatees  whose  interests  will  in  the  opinion  10 

of  the  court  be  affected  by  the  proposed  arbitration  or  compromise,  and  11 

those  claiming  the  estate  as  intestate,  shall  be  parties.        215  Mass.  226.  12 

225  Mass.  12,  380.  228  Mass.  39.  230  Mass.  131.  233  Mass.  267. 


co^ntfngent  °'         Section  16.     If  the  couTt  fiuds  that  any  future  contingent  interests  1 

iseTfls,  §  2.    which  would  arise  under  said  will  if  admitted  to  probate  would  be  af-  2 

R  Lus'Vw  f^cted  by  the  arbitration  or  compromise,  it  shall  appoint  some  person  3 

209'^M^""'  4'i9    *^  represent  such  interests  in  such  controversy,  and  the  court  shall  have  4 

225  Mass!  12, '   like  power  as  to  any  bequests  made  in  the  will  for  charitable  purposes,  if  5 

no  trustees  have  been  appointed  in  such  will;   in  both  cases  with  such  6 

conditions  as  to  costs  as  the  court  orders.  7 


380 

228  Mass.  39 


Effect  of 
compromise. 
1864,  173, 
§§3,4. 

R  L  Hs'liV"'  parties  in  being  and  in  its  effect  upon  any  future  contingent  interests     „ 
1903,222.         that  might  arise  under  such  will  and  upon  any  bequests  to  charities    4 


Section  17.     An  award  or  compromise  made  in  writing  in  any  such 
case,  if  found  by  the  court  to  be  just  and  reasonable  in  relation  to  the 


Chap.  204.]    gener.\l  provisions  eelative  to  sales,  compromises,  etc.  2213 

5  made  in  the  same,  shall  be  valid  and  binding  upon  such  interests  and  J?|  JJ*^^-  ?o?- 

7,  I        •  n      11  •      1      •  ^^^  Ma3s.  303. 

6  upon  such  bequests,  as  well  as  upon  the  uiterests  ot  all  persons  m  bemg,  iS2  Mass.  208 


7  but  it  shall  not  impair  the  claims  of  creditors.  225  Mass.  sso. 


209  Mass.  459. 


1  Section  18.     If  a  minor  or  a  person  under  guardianship  or  conserva-  Minor,  etc.  to 

2  torship  is  a  necessary  party  to  an  arbitration  or  compromise  under  sec-  by  gTardfan." 

3  tion  fifteen,  he  shall  be  represented  in  the  proceedings  by  his  guardian  or  iges,  ise, 

4  conservator,  or  by  a  guardian  ad  litem  appointed  by  the  court,  who  shall  ^;  f;  ^l,  |  'is. 

5  in  the  name  and  in  behalf  of  the  party  he  represents,  make  and  receive  J^°|'  p^- 

6  all  proper  con\eyances  and  payments  necessary  to  carry  into  effect  any  iso Mass. 303. 

7  award  or  compromise  sanctioned  by  the  court. 

IRREGULAR  AND  INVALID  SALES,  ETC.,  BY  EXECUTORS,  ETC. 

1  Section  19.     No  sale  of  real  estate  under  license  of  court,  and  no  imguiar,  etc., 

2  title  thereunder,  shall  be  a\'oided  for  the  reason  that  the  deed  was  not  avoided  ?n  ^^ 

3  delivered  within  one  year  after  the  license,  or  on  account  of  any  irregu-  R.'^a'7i!T38; 

4  larity  in  the  proceedings,  if  it  appears  —  Jg^^  ^'^■ 

5  First,  That  the  license  was  granted  by  a  court  of  competent  juris-  g-  s- 102.  §  47. 

6  diction;  1864;  137. 

7  Second,  That  the  person  licensed  gave  a  bond  approved  by  the  court  r.  l.  hs,  §  19. 

8  or  judge  granting  such  license,  if  a  bond  was  required;  isMaSissf' 

9  Third,  That  the  notice  of  the  time  and  place  of  sale  was  gi\en  accord-  ppjek.  s67 

10  ing  to  the  order  of  the  court;  and  ^  ^j^^-  ^f^- 

11  Fourth,  That  the  property  was  sold  by  public  auction  in  accordance  |  J^"'*''-  J|*- 

12  with  the  notice,  and  is  held  by  one  who  purchased  it  in  good  faith.  10  bray,  31! 

13  Gray,  326.  105  Mass.  33.  146  Mass.  100. 

3  Allen,  25.  106  Mass.  347.  153  Mass.  325. 

13  Allen,  109,  417.  115  Mass.  50,  508.  161  Mass.  315. 

102  Mass.  14.  133  Mass.  447. 

1  Section  20.     If  the  validity  of  a  sale  is  drawn  in  question  by  a  person  where  con- 

2  claiming  adversely  to  the  title  of  the  deceased  or  of  the  ward,  or  under  under  title 

3  a  title  not  deri\ed  from  or  through  the  deceased  or  the  ward,  the  sale  S?'^s"7i!°§'40; 

4  shall  not  be  void  by  reason  of  any  irregularity  in  the  proceedings,  if  the  q?'|  ^102,  §  48 

5  executor,  administrator,  guardian,  conservator  or  trustee  was  licensed  to  J^-  ^-  ^^^^  i^^^ 

6  make  the  sale  by  a  court  of  competent  jurisdiction  and  executed  and  ?  Mass.  488. 

7  acknowledged  in  legal  form  a  deed  of  the  property. 


1  Section  21.     If  a  license  is  granted  by  a  probate  court  for  a  sale  or  whenadjudi- 

2  mortgage  of  real  estate  to  pay  the  debts  and  charges  of  a  deceased  person  deb'CTfinai." 

3  or  of  a  person  under  guardianship  or  conservatorship,  the  adjudication  r 's.' ul,' §  26. 

4  of  said  court  as  to  the  existence  of  such  debts  and  charges  shall  be  final  fgij-  23*'  ^  ''' 

5  so  far  as  the  same  may  affect  any  title  acquired  by  virtue  of  such  license, 

6  but  shall  not  affect  the  right  of  the  executor,  administrator,  guardian  or 

7  conservator  to  contest  the  validity  of  such  debts  and  charges. 

1  Section  22.     No  action  for  the  recovery  of  property  sold  by  an  execu-  Action  or 

2  tor  or  administrator  under  chapter  two  hundred  and  two  shall  be  main-  recovery  of 

3  tained  by  an  heir  or  other  person  claiming  under  the  deceased  unless  executor,  etc. 

4  commenced  within  five  years  next  after  the  sale;  and  no  action  for  R^'s.'7i,°'§37f" 

5  property  sold  by  a  guardian  or  conservator  under  said  chapter  shall  J?-^  'jo2,  §  46. 

6  be  maintained  by  the  ward  or  by  any  person  claiming  under  him  unless  P-  S-  h2,  §  21^. 

7  commenced  within  five  years  next  after  the  termination  of  the  guardian-  19^5, 23  ' 

8  ship  or  conservatorship;    but  persons  out  of  the  commonwealth  and  10  Gray.  31! 

9  minors  and  others  under  legal  disability  to  sue  when  their  right  of  action 


2214 


GENERAL  PROVISIONS  REL.'VTIVE  TO  SALES,  COMPROMISES,  ETC.      [ClLiP.  204. 


first  accrues  may  commence  such  action  at  any  time  within  five  years  10 
after  the  removal  of  the  disabihty  or  after  their  return  to  the  common-  11 
wealth.  No  entry,  unless  by  judgment  of  law,  shall  be  made  upon  land  12 
so  sold,  with  a  view  to  avoid  the  sale,  unless  within  the  times  of  limi-  13 
tation  before  prescribed  for  the  commencement  of  an  action.  14 


Confirmation, 
etc.,  of  void 
acts  of  exec- 
utor, etc. 
1873,  253,  §  3. 
P.  S.  142.  §  22. 
R.  L.  148,  §  23. 
1915,  23. 
142  Mass.  479. 
150  Mass.  381. 
179  Mass.  451. 


Section  23.     If  an  act  or  proceeding  of  a  person  acting  as  executor,  1 

administrator,  guardian,  conservator  or  trustee  under  an  appointment  2 

or  license  of  a  probate  court  is  void  or  voidable  by  reason  of  an  irregu-  3 

larity  or  of  want  of  jurisdiction  or  authority  in  the  court  which  made  4 

the  appointment  or  granted  the  license,  any  person  interested  in  or  5 

affected  by  such  act  or  proceeding  may  have  the  matter  heard  and  de-  6 

termined  by  the  supreme  judicial  court  in  equity,  which  may  confirm  or  7 

set  aside,  in  whole  or  in  part,  the  act  or  proceeding.  8 


SfuMfSi  a?ts°^  Section  24.  If  the  authority  or  validity  of  an  act  or  proceeding  of 
etc"^'^''"'"'^'  ^^^  probate  court  or  of  a  person  acting  as  executor,  administrator,  guard- 
1^874, 346, 1  ^    ian,  conservator,  receiver  appointed  by  the  probate  court,  or  trustee  is 


195  Mass.  184. 


1888, 420. " """  drawn  in  question  by  reason  of  an  alleged  irregularity,  defective  notice 
1915' 23,63."'  ■  or  want  of  authority,  any  party  interested  in  or  affected  by  such  act  or 
proceeding  may  apply  to  the  probate  court  ha\'ing  jurisdiction  of  the 
subject  matter  relative  to  which  the  act  or  proceeding  has  been  had,  and 
the  court,  after  notice  to  all  parties  interested,  and  to  the  persons  who  8 
may  be  the  parents  of  such  parties  not  in  being,  with  power  to  appoint  9 
a  guardian  or  next  friend  to  represent  the  interests  of  any  person  unborn  10 
or  unascertained,  may  hear  and  determine  the  matter  and  confirm  the  11 
act  or  proceeding,  in  whole  or  in  part,  and  may  authorize  anil  empower  12 
the  executor,  administrator,  guardian,  conservator,  receiver  appointed  13 
by  the  probate  court,  or  trustee,  or  any  successor  or  other  person  who  14 
may  be  legally  appointed  to  act  in  the  same  capacity,  to  ratify  and  con-  15 
firm  such  act  or  proceeding  and  to  execute  and  deliver  such  deeds,  re-  16 
leases,  conveyances  and  other  instruments  as  may  be  found  necessary  17 
therefor;  but  no  act  or  proceeding  shall  be  ratified  or  confirmed  which  18 
the  coiu-t  might  not  have  passed  or  authorized  in  the  first  instance  upon  19 
due  proceedings.  20 


What  acts  to 
be  ratified,  etc. 


Liability  of 
irregularly 
appointed 
executor,  etc., 
to  account. 
1873,  253, 
§§  1,  2. 

P.  S.  142.  §  24. 
R.  L.  148,  §  25. 
1915,  23. 
126  Mass.  105. 
133  Mass.  207. 


Section  25.     An  executor,  administrator,  guardian,  conservator  or  1 

trustee  whose  appointment  is  invalid  by  reason  of  an  irregularity  or  of  2 

want  of  jurisdiction  or  authority  in  the  court  whicli  made  it,  shall  account  3 

for  all  money,  property  or  assets  coming  to  his  hands  in  said  capacity  4 

as  if  the  appointment  had  been  regular  and  valid;  and  any  bond  given  5 

in  pursuance  of  such  appointment  shall  be  valid  and  binding  on  the  prin-  6 

cipaJs  and  sureties;  and  payments  to  or  by  a  person  so  appointed,  if  in  7 

other  respects  properly  made,  may  with  the  approval  of  the  probate  8 

court  be  ratified  and  confirmed  by  the  executor,  administrator,  guardian,  9 

conservator  or  trustee  who  is  afterward  legally  appointed.  10 


pmo7of "notice       Section  26.     If  au  executor,  administrator,  guardian,  conser\'ator  or 

6r8a&"how''"'  trustcc.  Or  a  person  employed  by  him  to  give  notice  of  an  appointment 

remedied.  or  uoticc  of  salc  of  real  estate,  has  failed  to  file  an  affidavit  of  such  notice 

R.  l!  148',  §  26.  in  the  probate  court  and  such  affidavit  cannot  be  obtained,  the  court 

may,  upon  petition  of  any  person  interested  in  real  estate  the  title  to 

which  may  be  affected  thereby,  stating  the  particular  failure  complained 

of  and  averring  that  the  affida-\-it  cannot  be  obtained,  order  notice  by 


1 

2 
3 

4 
5 
6 

7 


dL-vp.  205.] 


BONDS   OF  EXECUTORS,   TRUSTEES,   ETC. 


2215 


8  publication  to  creditors  of,  and  others  interested  in,  the  estate  in  the 

9  settlement  of  which  the  failiu-e  complained  of  occurred.    If,  upon  return 

10  of  such  notice  and  after  hearing,  the  court  is  satisfied  that  such  notice 

11  was  in  fact  given,  it  may  make  a  decree  to  that  effect. 

REFERENCES. 

§    5.    Descent  of  cemetery  lots  unless  expressly  devised  by  will,  Chap.  114,  §  31. 

§  10.    Method  of  payment  of  costs,  Chap.  215,  §  4.5. 

§  11.    Limit  of  time  for  writs  against  executors,  etc.,  for  their  own  acts,  etc..  Chap. 

260,  §  11. 
§  13.   Arbitration  or  compromise  by  receiver  of  absentee,  Chap.  200,  §  11. 
§  1.5.    Conclusiveness  of  the  proceedings,  Chap.  192,  §  3. 
§  19.    Partition  sales,  Chap.  241,  §  31. 

Sales,  mortgages  and  leases  by  executor  and  others,  see  also  Chaps.  201-203. 

Sales  by  pubUc  administrator.  Chap.  194,  §  9. 


CHAPTER    205 


BONDS  OF  EXECUTORS,  ADMINISTRATORS,  GUARDIANS,  CONSERVA- 
TORS, TRUSTEES   AND   RECEH'ERS. 


Sect. 

form  and  conditions  of  probate  bonds. 

1.  Form  of  bonds  and  when  required. 

2.  Additional    proWsions    for    bonds    in 

French  spoliation  cases. 

3.  Bond  of  executor,  etc.,  who  is  residuary 

legatee. 

EXEMPTION      FROM      GIVING      SURETIES      ON 
BONDS. 

4.  E-xemption     of    executor,     etc.,     from 

gi\'ing  sureties. 

5.  Exemption  of  guardians  and  trustees. 

6.  Exemption  of  guardian  having  custody. 

7.  Bond  not  required  in  certain  cases. 

8.  Neglect  to  give  bond  a  resignation. 

GENERAL  PROVISIONS. 

9.  Sureties  on  bonds  to  be  inhabitants  of 

commonwealth. 

10.  Bonds  to  be  approved  by  judge  or  regis- 

ter. 

11.  Joint  or  separate  bonds  by  joint  execu- 

tors, etc. 

12.  Executor  not  gi\-ing  bond  not  to  inter- 

meddle. 

13.  Additional  bond  may   be   required   of 

executor,  etc.,  licensed  to  sell,  etc. 

14.  New  bond  when  sureties,  etc.,  insuffi- 

cient. 

15.  Discharge  of  sureties,  and  new  bond. 


Sect. 

16.  Removal  if  new  bond  not  given. 

17.  Sureties  on  prior  bond  Hable  until  new 

bond  approved. 

18.  Reduction  of  penal  sum  of  bond. 

19.  Release    of    sureties    by    marriage    of 

executrix,  etc. 

ACTIONS   UPON   BONDS. 

20.  Action  by  creditor. 

21.  Same  subject. 

22.  Action  by  next  of  kin. 

23.  Action   by  person   aggrieved   by  mal- 

administration of  e.xecutor,  etc. 

24.  Action  when  the  judge  is  an  obUgor. 

25.  Action  against  wife  of  probate  judge. 

26.  Endorsement  of  writ. 

27.  Obligor  may  be  summoned  in  certain 

cases. 

28.  Same  subject. 

29.  Actions  upon  bonds  of  guardians,  con- 

servators or  trustees. 

30.  Venue  of  actions  upon  bonds. 

31.  Form  of  execution  in  action  on  bond. 

32.  Proceedings  if  execution  is  awarded  for 

the  use  of  a  particular  person. 

33.  Proceedings  if  awarded  mthout  express- 

ing for  whose  use. 

34.  ProWsion  for  new  breach  after  execu- 

tion awarded. 

35.  Limitation  of  actions  against  sureties 

on  bond  of  guardian  or  conservator. 


1 


FORM  AND   CONDITIONS   OF   PROB.\TE   BONDS. 

Section  1.    An  executor,  administrator,  administrator  with  the  will  Form  of 


bonds  and 

2  annexed,  special  administrator,  receiver  of  an  absentee,  conservator,  p''|°7|ST?!- 

3  temporary  guardian  and,  unless  otherwise  expressly  provided,  a  guardian  i3o.§§  2]  s.  I'l; 

4  or  trustee  under  a  will  or  appointed  by  the  probate  court,  including  a  §§  ia.  13".' 


2216 


BONDS   OF  EXECUTORS,   TRUSTEES,   ETC. 


[Chap.  205. 


1897,  135,  §  3: 
447,  §  2. 
1S9S,  527,  5  2. 
1900,  345,  §  4. 
R.  L.  145,  §  41 
149,  §  1. 
1908,  295. 
1910,95. 
5  Pick.  65. 


Conditions  of 
bond  of  exec- 
utor or  admin- 
istrator, etc. 
1783,  24.  §  17. 
1816,94,  §  1. 
1817,  190,  §  14. 
R.  S.  63, 
§§2,8. 


13  Pick.  328. 
10  Cusli.  1. 
106  Mass.  15. 
140  Mass.  351. 

143  Mass.  326. 

144  Mass.  587. 

152  Mass.  412. 
193  Mass.  38. 
211  Mass.  178. 


Bond  of 
administrator. 
1692-3,  14.  §  1. 
1783,36,  §8, 
1816,94.  §  1, 
1817,  190,  §  14. 
R.  S.  64.  §  5. 
G.  S.  94,  §  2. 
1878.  154,  §  1. 
5  Pick.  65. 


trustee  under  a  will  holding  property  for  public  charitable  purposes, 
before  entering  upon  the  duties  of  his  trust,  shall  give  bond  with  suf- 
ficient sureties,  in  such  sum  as  the  probate  court  may  order,  payable 
to  the  judge  of  said  court  and  his  successors,  and  with  condition  sub- 
stantially as  follows:  8  Pick.  526.  7  Gush.  207.  16  Gray,  577. 


R.  L.  149,  I  1. 
133  Mass.  111. 
136  Mass.  54. 


198  Mass.  401. 


Bond  of 
special  ad- 
ministrator. 
1834,  174,  §  5. 
R.  S.  64.  §  7. 
G.  S.  94,  §  7. 
1876,  200,  §  2. 
P.  S.  130.  I  11. 
R.  L.  149,  §  1. 


Bond  of 
receiver 
of  absentee. 
1897,  447,  §  2. 
R.  L,  149,  §  1. 


8  Allen,  532. 
184  Mass.  373. 


191  Mass.  211. 
194  Mass.  423. 


221  Mass.  587. 
228  Mass.  225. 


1878,  154,  §  1. 
1880,  152,  §  1. 


P.  S.  129,  §  5; 
130,  §  8. 


R.  L.  149,  §  1. 
152  Mass.  412. 


1.  In  the  case  of  an  executor  or  administrator  with  the  w^ill  annexed:  10 

First,  To  make  and  return  to  the  probate  court  within  three  months  all 

true  inventory  of  all  the  testator's  real  and  personal  property  w-hich  at  12 

the  time  of  making  such  inventory  shall  have  come  to  his  possession  or  13 

knowledge;  g.  s.  93,  §§  2. 8.  i87o,  285.  14 


Second,  To  administer  according  to  law  and  to  the  will  of  the  testator  15 
all  personal  property  of  the  testator  which  may  come  into  his  possession  16 
or  into  the  possession  of  any  person  for  him,  and  also  the  proceeds  of  any  17 
of  the  real  estate  of  the  testator  which  may  be  sold  or  mortgaged  by  him;  18 

Third,  To  render  upon  oath  a  true  account  of  his  administration  at  19 
least  once  a  year  until  his  trust  is  fulfilled,  unless  he  is  excused  therefrom  20 
in  any  year  by  the  court,  and  also  to  render  such  account  at  such  other  21 
times  as  the  court  may  order.  22 

2.  In  the  case  of  an  administrator:  23 
First,  To  make  and  return  to  the  probate  court  within  three  months  a  24 

true  inventory  of  all  the  intestate's  real  and  personal  property  which  at  25 
the  time  of  making  such  in\^entory  shall  have  come  to  his  possession  or  26 
knowledge;  isso,  152,  §1.  p.  s.  lao,  §2.  r.  l.  149,  §1.  27 

Second,  To  administer  according  to  law  all  the  personal  property  of  the  28 
deceased  which  may  come  into  his  possession  or  into  the  possession  of  any  29 
person  for  him,  and  also  the  proceeds  of  any  of  tiie  real  property  of  the  30 
deceased  which  may  be  sold  or  mortgaged  by  him;  31 

Third,  To  render  upon  oath  a  true  account  of  his  administration  at  32 
least  once  a  year  until  his  trust  is  fulfilled,  unless  he  is  excused  therefrom  33 
in  any  year  by  the  court,  and  also  to  render  such  account  at  such  other  34 
times  as  the  court  orders;  35 

Fourth,  To  pay  to  such  persons  as  the  court  orders  any  balance  36 
remaining  in  his  hands  upon  the  settlement  of  his  accounts;  37 

151  Mass.  595. 

Fifth,  To  deliver  his  letters  of  administration  into  the  court  if  a  will  of  38 
the  deceased  is  thereafter  duly  proved  and  allowed.  39 

3.  In  the  case  of  a  special  administrator:  40 
That  he  will  make  and  return  to  the  probate  court  within  such  time  as  41 

it  orders  a  true  inventory  of  all  the  personal  property  of  the  deceased  42 
which  at  the  time  of  making  such  inventory  shall  have  come  to  his  43 
possession  or  knowledge,  and  that  he  will,  whenever  required  by  the  pro-  44 
bate  court,  truly  account  on  oath  for  all  the  property  of  the  deceased  45 
which  may  be  received  by  him  as  such  special  administrator,  and  will  46 
deliver  the  same  to  any  person  who  may  be  appointed  executor  or  ad-  47 
ministrator  of  the  deceased,  or  may  be  otherwise  lawfully  authorized  to  48 
receive  the  same.  49 

4.  In  the  case  of  a  receiver  of  an  absentee  under  chapter  two  hundred :  50 
With  condition  substantially  as  provided  for  the  bond  of  an  executor  51 

or  administrator,  and  with  the  further  condition  to  obey  all  orders  and  52 
decrees  made  by  the  probate  court.  53 


Chap.  205.]  bonds  of  executors,  trustees,  etc.  2217 

54  5.  In  the  case  of  a  temporary  guardian  or  conservator  appointed  under  Bond  of 

55  section  fourteen  or  twenty-one  of  chapter  two  hundred  and  one :  guarSan'^r 

56  That  he  will  make  and  return  to  the  probate  court  within  such  time  as  i897??35.°§'3. 

57  it  shall  order  a  true  inventory  of  all  the  personal  property  of  the  ward  ^"li  \Iq-_  |  \- 

58  which  at  the  time  of  making  such  in\-entory  shall  have  come  to  his  pos-  i^i^'  ^3. 

59  session  or  knowledge,  and  that  lie  will,  whenever  required  by  the  probate 

60  court,  truly  account  on  oath  for  all  the  property  of  the  ward  which  may  be 
€1  received  by  him-  as  such  temporary  guardian  or  conservator,  and  will 

62  deliver  it  to  any  person  who  may  be  appointed  guardian  or  conservator 

63  or  may  be  otherwise  lawfully  authorized  to  receive  it. 

64  6.  In  the  case  of  a  guardian  or  conservator:  ^uardianor 

1  Pick.  198,  206,  527.  S  Pick,  528.  154  Mass.  266.  conservator. 

7  Pick.  91.  3  Gush.  465. 

65  First,  To  make  and  return  to  the  probate  court  at  such  time  as  it  orders  1726-7, 12, 

66  a  true  inventory  of  all  the  real  and  personal  property  of  the  ward  which  at  1731-2',  14, 

67  the  time  of  making  such  inventory  shall  have  come  to  his  possession  or  1737-8  9 

68  knowledge;  '  "3, 4.'  ' 

1783,  38,  §  5.  G.  S.  109,  §§  6,  16.  1898,  527,  §  2. 

1817,  190,  §  34.  1878.  1.V4,  §  2.  R.  L.  145,  §  41;  149,  §  1. 

R.  S.  79,  §§  5,  7.  1880,  152,  §  1.  1910,  95. 

1855,  280.  P.  S.  139,  §  22.  1915,  23. 

69  Second,  To  manage  and  dispose  of  all  such  property  according  to  law 

70  and  for  the  best  interests  of  the  ward,  and  faithfully  to  perform  his  trust 

71  in  relation  to  such  property  and  to  the  custody,  education  and  main- 

72  tenance  of  the  ward; 

73  Third,  To  render  upon  oath  at  least  once  a  year  until  his  trust  is  ful-  fj^p^^k  ^i^' 

74  filled,  unless  he  is  excused  therefrom  in  anv  vear  by  the  court,  a  true  ?y'l''  i?,^^ 

*■'       "  4  V„  USD.  olU. 

75  account  of  the  property  in  his  hands,  including  the  proceeds  of  all  real  n  Cush.  is. 

76  property  sold  or  mortgaged  by  him  and  of  the  management  and  disposi-  9Aiienii02. 

77  tion  thereof,  and  also  to  render  such  account  at  such  other  times  as  said  u4  Mass!  195! 

78  court  may  order; 

79  Fourth,  At  the  expiration  of  his  trust  to  settle  his  account  in  the  pro-  1  Pick,  los, 

80  bate  court  or  with  the  ward  or  his  legal  representatives,  and  to  pay  over  Ts  Pick.  1. 

81  and  deliver  all  the  property  remaining  in  his  hands,  or  due  from  him  on  4  cusV^lio. 

82  such  settlement,  to  the  person  or  persons  lawfully  entitled  thereto.  o^AUeny'iol?' 

130  Mass.  141.  182  Mass.  332.  206  Mass.  4,S8. 

144  Mass.  195.  187  Mass.  578.  232  Mass.  83. 


83  7.  In  the  case  of  a  trustee  under  a  will  or  appointed  by  the  probate  Bond  of 

o  ,  ,  _  "  trustee. 

84  court:  22Pick.2i5. 

10  Allen,  169.  153  Mass.  249.  184  Mass.  373. 


85  First,  To  make  and  return  to  the  probate  court  at  such  time  as  it  orders  isio,  8o,  §  i. 

86  a  true  inventory  of  all  the  real  and  personal  property  belonging  to  him  as  §§  37, 41.' 

87  trustee  which  at  the  time  of  the  making  of  such  inventory  shall  have  §§1,9.' 

88  come  to  his  possession  or  knowledge;  g.  s.  100,  §§  1, 11. 

1869, 357.  P.  S.  141,  §§  12,  13.         1908,  295. 

1878,  154,  §  2.  R.  h.  149,  §  1.  186  Mass.  189. 

89  Second,  To  manage  and  dispose  of  all  such  property,  and  faithfully  to 

90  perforin  his  trust  relati\-e  thereto  according  to  law  and  to  the  will  of  the 

91  testator  or  the  terms  of  the  trust  as  the  case  may  be; 

92  Third,  To  render  upon  oath  at  least  once  a  year  until  his  trust  is 

93  fulfilled,  unless  he  is  excused  therefrom  in  any  year  by  the  court,  a  true 

94  account  of  the  property  in  his  hands  and  of  the  management  and  dis- 

95  position  thereof,  and  also  to  render  such  account  at  such  other  times  as 

96  said  court  orders; 


2218 


BONDS   OF  EXECUTORS,   TRUSTEES,   ETC. 


[Chap.  205. 


Fourth,  At  the  expiration  of  his  trvist  to  settle  his  account  in  the  pro-  97 

bate  court,  and  to  pay  over  and  dehver  all  the  property  remaining  in  his  98 

hands,  or  due  from  him  on  such  settlement,  to  the  person  or  persons  99 

entitled  thereto.  100 


Additional 
provisions  for 
bonds  in 
French  spo- 
liation cases. 
1902.  371, 
§5  2-4. 


Section  2.     A  bond  given  by  an  administrator  engaged  in  the  admin-  1 

istration  of  French  spoliation  awards  shall  contain  a  condition  substan-  2 

tially  as  follows:    "To  administer  according  to  law  and  the  orders  of  3 

the  probate  court  all  French  spoliation  awards  which  shall  come  to  his  4 

possession  as  such  administrator."    Such  bond,  when  satisfactory  to  the  5 

judge  or  register,  shall  be  approved  in  the  following  form :  "  Approved  as  6 

adequate  security  for  the  legal  disbursement  of  a  French  spoliation  award  7 

of                dollars",  stating  the  amount  appearing  then  to  be  receivable  8 

by  the  administrator  from  the  United  States  treasury  on  account  of  9 

such  award  or  awards.    Nothing  herein  contained  shall  be  construed  to  10 

impair  the  validity  of  any  bond  given  prior  to  I\Iay  second,  nineteen  11 

hundred  and  two,  or  to  afl'ect  the  rules  of  administration  and  distribution  12 

of  French  spoUation  awards  theretofore  established  in  the  commonwealth.  13 


§§6, 


Bond  of 
executor,  etc., 
who  is 
residuary 
legatee. 
1783.  24,  §  17. 
R.  S.  63, 
§§3.4. 
1857,  88. 
G.S.  93, 
§§3,4. 
1870,  285. 
P.  S.  129, 
7;  130,  §  S 
R.  L.  149.  §  2. 
3  Mass.  523. 
16  Mass.  172. 
5  Pick.  337. 

5  Met.  247. 

6  Cush.  235. 
2  Gray,  404. 
5  Gray,  67. 
107  Aias.-(.  474. 
116  Mass.  435. 
131  Mass.  408. 

133  Mass.  447. 

134  Mass.  115. 


Section  3.     If  the  executor  of  a  will  or  an  administrator  with  the  1 

will  annexed  is  residuary  legatee  thereunder,  and  it  appears  that  the  2 

bond  required  of  him  by  section  one  is  unnecessary  for  the  protection  3 

of  any  person  interested  in  the  estate,  the  court  may  permit  him,  in-  4 

stead  of  giving  such  bond,  to  give  bond  in  a  sum  and  with  sureties  to  5 

the  satisfaction  of  the  court,  and  conditioned  to  pay  all  debts  and  6 

legacies  of  the  testator  and  such  amounts  as  may  be  allowed  by  the  7 

court  to  the  widow  or  minor  children  for  necessaries.     In  such  case  he  8 

shall  not  be  required  to  return  an  inventory  to  the  court.     The  giving  9 

of  such  bond  shall  not  discharge  the  lien  on  the  real  estate  of  the  testator  10 

for  the  payment  of  debts,  except  on  such  part  as  may  be  sold  by  such  11 

executor  or  administrator  to  a  purchaser  in  good  faith  and  for  a  valuable  12 

consideration;  and  all  property  not  so  sold  may  be  taken  on  execution  13 

by  a  creditor  not  otherwise  satisfied,  in  like  manner  as  if  a  bond  had  been  14 

given  in  the  other  form.  15 

140  Mass.  66,  502.  144  Mass.  238.  191  Mass.  187.  202  Mass.  104. 


Exemption  of 
executor,  etc., 
from  giving 
sureties. 
1858,  72. 
G.  S.  93.  §  5. 
P.  S.  129.  §  8. 
1885,  274, 
§§  1.2. 
R.  L.  149, 
§§3.8. 
8  Allen,  532. 
12  Allen,  330. 
218  Mass.  27. 


EXEMPTION  FROM   GIVING   SURETIES   ON  BONDS. 

Section  4.     An  executor  shall  be  exempt  from  giving  a  surety  on  1 

his  bond  if  the  testator  has  ordered  or  requested  such  exemption  or  that  2 

no  bond  be  required,  and  an  executor,  administrator  or  an  administrator  3 

with  the  will  annexed  shall  be  so  exempt  if  all  the  persons  interested  in  4 

the  estate  of  full  age  and  legal  capacity,  other  than  creditors,  certify  5 

to  the  probate  court  their  consent  thereto;  but  not  until  all  creditors  of  6 

the  estate,  and  the  guardian  of  any  minor  interested  therein,  have  been  7 

notified  and  have  had  opportunity  to  show  cause  against  the  same.  8 

The  probate  court  may,  however,  upon  or  after  the  granting  of  letters  9 

testamentary  or  letters  of  administration  require  bond,  with  sufficient  10 

sureties,  and  failure  to  furnish  the  same  within  such  time  as  the  court  11 

orders  shall  constitute  a  declination  of  or  a  resignation  from  the  trust.  »12 


guarfra'ns"and        SECTION  5.     A  testamentary  guardian  and  a  trustee  under  a  will 
isn^igo,  §  37.  shall  be  exempt  from  giving  sureties  on  liis  bond,  if  tlie  testator  has 


1 

2 


CbJlP.   205.]  BONDS  OF  EXECUTORS,   TRUSTEES,   ETC.  2219 

3  ordered  or  requested  such  exemption,  or  that  no  bond  be  required,  ^g|'7®'^^' 

4  or  in  case  of  a  trustee,  if  all  the  persons  beneficially  interested  in  the  PqI^-,!?"'  ^  ^• 

5  trust,  of  full  age  and  legal  capacity,  other  than  creditors,  request  such  ism,  357. 

6  exemption;   but  not  until  the  guardian  of  any  minor  interested  therein  1574]  352]  §2! 

7  and  such  other  persons  as  the  court  orders  have  been  notified  and  had  p^a'fs^o, 

8  opportunity  to  show  cause  against  the  same.    The  probate  com-t  may,  ||  ff^  'fi-  ^*^' 

9  however,  at  any  time  require  such  guardian  or  trustee,  or  a  trustee  ap-  ^^^'  339-    ^ 

10  pointed  bv  the  probate  coiut,  to  give  a  bond  with  siu-eties.    The  court  ibos!  295.' 

.".  .  ..  22  Pick  215 

1 1  may,  with  or  ^\■lthout  notice,  exempt  a  trustee  imder  a  will  holding  117  Mass.  sis. 

12  property  for  public  charitable  purposes  from  giving  surety  on  his  bond.  ^''^ 

1  Section  6.     If  the  custody  of  a  minor  is  given  to  a  guardian,  under  Exemption 

2  section  five  of  chapter  two  hundred  and  one,  for  the  reason  that  one  or  hlvm"  custody. 
.3  both  of  his  parents  are  unfit  to  have  such  custody,  such  guardian  may  in  Ra'i^s^J.'j  2s. 

4  the  discretion  of  the  com-t  give  a  bond  without  surety ;  but  the  court  in  ^-  ^- 1''^'  ^  ^• 

5  such  case  may,  at  any  time  if  it  finds  that  the  protection  of  the  ward's 

6  interests  renders  it  necessary,  require  such  guardian  to  give  bond  with 

7  sureties. 

1  Section  7.     A  guardian  or  trustee  not  required  to  give  bond  by  the  Bond  not  re- 

2  laws  in  force  at  the  time  of  his  appointment  shall  not  be  required  to  give  teinrases!^"" 

3  bond  under  the  preceding  sections  of  this  chapter,  except  by  special  Jl}?;  fg'of /s?. 

4  order  of  the  court  under  section  five. 

•R.  S.  69,  §3.  1873,  122,  §2.  P.  S.  139,  §  27;  141,  §  19. 

G.  S.  100,  §  3.  1880,  34,  §  2.  R.  L.  149,  §  6. 

1  Section  8.     A  person  required   by  the  preceding  sections,   except  'j^l'^ond'a 

2  section  four,  to  gi\e  a  bond  who,  for  thirty  days  after  his  appointment  or  resignation 

3  after  the  entry  of  the  decree  requiring  liim  to  give  bond,  fails  to  file  i8i7,'  inb,  §  38. 

4  the  bond,  duly  approved,  may  be  found  to  have  declined  or  resigned  g!  a  ibo,  §  i. 

5  the  trust.  i869, 357.  is73, 122,  §  2.  isso,  34,  §  2. 

p.  S.  139,  §2G;  1898,458.  110  Mass.  298. 

141,  §  18.  R.  L.  149,  §  7.  128  Mass.  398. 


general  provisions. 

1  Section  9.     Sureties  on  probate  bonds  shall  be  iiJiabitants  of  the  sureties  on 

2  commonwealth,  and  satisfactory  to  the  judge  or  register;    except  that  iXabit'a'ntsot 

3  companies  permitted  by  section  one  hundred  and  five  of  chapter  one  5°"2,"|5,Y4'."'" 

4  hundred  and  seventy-five  to  act  as  sureties  may  be  accepted  in  accord-  jf^l'TO^s  1^^' 

5  ance  with  the  provisions  thereof.  g.  s.  loi,  §  12. 

p.  S.  143,  §  1.  1901,  463.  R.  L.  149,  §  9.  7  Al\en.  425. 

1  Section  10.     No  bond  required  to  be  given  to  a  judge  of  probate  or  Bonds  to  be 

2  to  be  filed  in  a  registry  of  probate  shall  be  sufficient,  unless  it  has  been  fudge  o^r  ^^ 

3  examined  and  approved  by  the  judge  or  register,  and  his  approval  over  igj'I'Ygo,  §  23. 

4  his  official  signature  written  thereon.  R.  s.  83,  §  32. 

G.  S.  101,  §  12.  R.  L.  149,  §  10.  12  Allen,  330. 

P.  S.  143,  §  2.  3  Cush.  4ri5.  142  Mass.  399. 

1901,463.  8  Allen,  532.  178  Mass.  203. 

1  Section  11.     Two  or  more  persons  acting  jointly  as  executors,  admin-  Joint  or  sepa- 

2  istrators,  trustees  or  otherwise,  who  are  required  to  give  bonds,  may  Joint  executors. 

3  give  either  separate  or  joint  bonds.  i834, 174,  §  6.  ^'°- 

R.  S.  70.  §  2.  1874,  366.  R.  L.  149,  §  11. 

G.  S.  101,  §  14.  P.  S.  143,  §  3.  lOG  Mass.  15. 


2220 


BONDS   OF  EXECUTORS,   TRUSTEES,   ETC. 


[Chap.  205. 


givmg'brad'  SECTION  12.  If  two  or  morc  persons  are  appointed  executors,  none 
meddie"""^  shall  intermeddle  or  act  as  such  but  those  who  give  bond  as  before 
ms,  24,  §  17.   provided.  3 

R.  S.  62,  §  2.  G.  S.  93,  §  2.  P.  S.  129,  |  9.  R.  L.  149,  §  12. 


1 

2 


Additional 
bond  may  be 
required  of 
executor,  etc., 
licensed  to 
sell,  etc. 
1783,  32,  §  2. 
1834,  174,  §  7. 
R.  S.  71,  §  6: 
72.  §  10. 
1850,  196. 


Section  13.     If  a  license  or  authority  to  sell  or  mortgage  real  estate  1 

is  granted  to  an  executor,  administrator,  guardian,  conservator  or  trus-  2 

tee,  no  special  bond  shall  be  required;  but  if  the  court  finds  the  bond  3 

already  given  by  him  insufficient,  it  shall,  before  granting  such  license  4 

or  authority,  require  an  additional  bond  containing  the  same  conditions  5 

as  are  required  in  the  original  bond.  6 


G.  S.  101,  §  13; 
102,  §§  6,  28. 
1880,  152,  §  2. 


P.  S.  143,  §  4. 
1898,  527,  §  2. 
R.  L.  145,  §41;  149,  §  13. 


1910,  95. 

16  Grav,  267. 

133  Mass.  236. 


Section  14.     If  the  sureties  or  the  penal  sum  in  a  probate  bond  are 


New  bond 

when  sureties,      .  ™»    .  ,  .      ,.    .    , 

etc  ■insufficient,  msufficieut,  the  suprcmc  judicial  court  or  the  probate  court  may,  after 
isn!  190, 1 42.  notice  to  the  principal  in  such  bond,  require  a  new  bond  with  such 
79,  §24.'    "''    surety  or  sureties  and  in  such  penal  sum  as  the  court  orders. 

1851,  31,  §  1.  P.  S.  143,  §  5.  139  Mass.  356. 

G.  S.  101,  §  15;  R.  L.  149.  §  14.  142  Mass.  399. 

109,  §  27.  3  Gush.  465.  171  Mass.  386. 

1877,  134.  116  Mass.  435.  175  Mass.  199. 


Discharge  of  SECTION  15.     A  surcty  on  a  probate  bond  may,  upon  the  petition  of 

new  bond.  the  surcty  or  of  the  principal  to  the  supreme  judicial  court  or  the  pro- 
R.  s.  70,  '§  28"'  bate  court,  be  discharged  from  all  further  responsibility,  if  the  court, 
1843, 56,  §  1.  after  notice  to  all  persons  interested,  finds  such  discharge  reasonable 
?69^§^27'  ^  ^'^'  ^"^  proper;  and  the  principal  shall  thereupon  give  a  new  bond  with 
S-  ?•  ^}?A  ^<:^;  =  such  surety  or  sm-eties  as  the  court  orders.  i9i2,  lei. 

R.  L.  149,  §  15.  ^ 

129  Mass.  226.  130  Mass.  404.  132  Mass.  343.  139  Mass.  356. 


Removal  if 

new  bond  not 

given. 

1817,  190,  §  42. 

R.  S.  70,  §  29. 

1843,  56,  §  2. 

1851,31,  §  1. 


Section  16.     If,  in  the  cases  specified  in  the  two  preceding  sections,  1 

the  principal  does  not  give  such  new  bond  within  such  time  as  the  court  2 

orders,  he  shall  be  removed  from  his  trust,  and  another  person  appointed  3 

in  his  stead.  g.  s.  loi,  §  i7.  p.  s.  143,  §  7.  r.  l.  149,  §  le.  4 


prio'?bon°d  Section  17.     If  a  new  bond  is  required  as  above  provided,  the  sureties     1 

Uabie  until  new  qu  the  prior  bond  shall  be  liable  for  all  breaches  of  the  condition  thereof    2 

bond  approved.  •iir*  i  i  i*  ii  »»i 

1817, 190,  §  42.  committed  betore  the  new  bond  is  approved  by  the  judge.  3 

R.  S.  70,  §  30.  P.  S.  143,  §  8.  116  Mass.  552.  132  Mass.  343. 

1843,  56,  §  3.  R.  L.  149,  §  17.  129  Mass.  226.  142  Mass.  399. 

G.  S.  101,  §  18.  3  Gush.  465.  130  Mass.  404.  171  Mass.  386, 

^emiTsum  "i         SECTION  IS.     If  a  surety  company  becomes  surety  on  a  probate  bond,  1 

bond.  ^  the  court  may,  upon  the  petition  of  any  party  in  interest  and  after  notice,  2 

R.  l'.  149,  §  18.  reduce  the  penal  sum  in  which  the  principal  and  surety  shall  be  liable  3 

for  subsequent  violations  of  the  conditions  thereof.  4 


Release  of  SECTION  19.     In  casc  of  the  marriage  of  a  woman  who  is  an  execu-  1 

sureties  by  .  ,      ,    .  .  ,.  ^  ,  .1,1 

marriage  of       trix,  administratrix,  guardian,  conservator  or  trustee,  her  sureties  shall,  2 

iso9"409',V2.    upon  petition  to  the  probate  court  in  M'hich  her  bond  is  filed,  be  released  3 

i898,'62l'',  §^2.    from  further  liability  thereon,  beyond  accounting  for  and  paying  over  4 

fii^'i^w.'  ^  *''  *'^^  money  and  property  already  in  her  hands  by  ^■irtue  of  such  trust;  5 

7^Aii'en^427       ^^^  ^^  ^^^  siu'etics  are  so  released,  she  shall  be  required  to  furnish  a  new  6 

bond  to  the  satisfaction  of  said  court,  or  shall  be  removed  from  said  7 

trust.  8 


CUAP.   205.]  BONDS   OF  EXECUTORS,   TRUSTEES,   ETC.  2221 


ACTIONS   UPON  BONDS. 

1  Section  20.     A  bond  given  by  an  executor  or  administrator  for  the  Action  by 

2  performance  of  his  trust  may  be  put  in  suit  by  a  creditor  of  the  deceased  lyse,  55,  §  2. 

3  for  his  own  benefit,  when  such  creditor  has  recovered  judgment  for  his  §.' l/io'i!  §19. 

4  debt  against  the  executor  or  administrator  and  he  has  neglected  upon  ^  f;  Y/g,^  20. 

5  demand  to  pay  the  same  or  show  sufficient  goods  or  estate  of  the  deceased  ]i  jja^^-  f  ■ . 

,  ,  •  0  ^  1^  Mass.  524. 

6  to  be  taken  on  execution  tor  that  purpose.  20  Pick.  53. 

9  Met.  525.  138  Mass.  336.  183  Mass.  510.  195  Mass.  155,  411. 

1  Gray,  305.  142  Mass.  227.  185  Mass.  178.  196  Mass.  1. 

2  Gray.  154.  173  Mass.  112.  187  Mass.  461.  217  Mass.  552. 
117  Mass.  222.  182  Mass.  332.  188  Mass.  525.  221  Mass.  587. 

1  Section  21.     A  creditor  of  an  estate  which  has  been  represented  in-  same  subject. 

2  solvent  may  bring  such  action  if  the  amount  due  him  has  been  ascertained  r.*s.'7o,'|4.' 

3  by  the  decree  of  distribution,  and  the  executor  or  administrator  neglects  Ritual  in.' 

4  upon  demand  to  pay  it. 

R.  L.  149,  §  21.  21  Pick.  58.  221  Mass.  587. 

1  Section  22.     Such  action  may  be  brought  by  a  person  who  is  next  Action  by  next 

2  of  kin  to  recover  his  share  of  the  personal  property  after  a  decree  of  lim/bb.  §  2. 

3  the  probate  court  ascertaining  the  amount  due  him,  if  the  executor  or  giI.  u'l!  t'21. 

4  administrator  neglects  upon  demand  to  pay  it. 

p.  S.  143,  §  12.  R.  L.  149,  §  22.  126  Mass.  450.  144  Mass.  135. 

1  Section  23.     If  the  probate  court,  upon  the  representation  of  a  per-  Action  by 

2  son  interested  in  an  estate,  finds  that  the  executor  or  administrator  has  aggn°vedby 

3  failed  in  any  manner  not  specified  in  the  three  preceding  sections  to  per-  J?aUo™of '^ 

4  form  the  conditions  of  his  bond,  it  may  authorize  any  creditor,  next  of  jyl^^ 5'5 '  |'2' 

5  kin,  legatee  or  other  person  aggrieved  by  such  maladministration  to  g  |  ''S'-^  ^-.^^ 

6  bring  an  action  on  the  bond.       p.  s.  143,  §  13.       r.  l.  149,  §  23.       9  Met.  525. 

7  Gush.  467.  9  Allen,  244.  129  Mass.  75.  187  Mass.  578. 

1  Gray,  305.  13  Allen,  109.  136  Mass.  104.  193  Mass.  38. 

2  Gray,  175.  110  Mass.  195, 549.  140  Mass.  351.  202  Mass.  541.  ^ 
15  Gray,  57.  116  Mass.  518.  183  Mass.  596.  221  Mass.  587.  W 

1  Section  24.     If  a  judge  of  probate  is  obligor,  either  as  principal  or  Action  when 

2  as  surety,  in  a  bond  given  to  a  former  judge  of  the  court,  any  action  in^owfg^o'r."' 

3  authorized  by  this  chapter  may  be  brought  upon  such  bond  in  the  name  ^^^'  \^\- 

4  of  the  judge  mentioned  therein  or  in  the  name  of  his  executor  or  adminis-  i^F'fo 

5  trator,  and  the  register  of  probate  for  the  county  in  which  such  bond  was  r'.  l.  i49,  §  24. 

6  given  may  authorize  an  action  thereon  in  like  manner  and  upon  the 

7  same  conditions  as  may  be  done  in  other  eases  by  the  court. 

1  Section  25.     The  wife  of  a  judge  of  probate  may  be  a  defendant  in  Action  against 

2  an  action  upon  a  bond  given  to  him  or  to  his  predecessor  in  such  office,  bate  judge- 

1896,  208.  R.  L.  149,  §  25. 

1  Section  26.     In   every   action   on   a   bond   under  sections   twenty.  Endorsement 

2  twenty-one  and  twenty-two,  the  writ  shall  be  endorsed  by  the  persons  i7si[,'55,  §  2. 

3  for  whose  benefit  or  at  whose  request  the  action  is  brought  or  by  their  g'I^Io'i.^^m. 

4  attorney,  and  the  endorsers  shall  be  liable  for  the  costs  of  suit,  and  execu-  p-  ^-  ^*^^  Yii 

5  tion  therefor  shall  be  issued  against  them  and  not  against  the  judge.  ?Pj^'''^i-_ 

6  If  the  action  is  brought  for  the  benefit  of  creditors  or  next  of  kin,  there 

7  shall  be  a  further  endorsement  on  the  writ  specifying  that  it  is  brought  for 

8  the  benefit  of  such  creditors  or  next  of  kin. 


2222 


BONDS   OF   EXECUTORS,   TRUSTEES,   ETC. 


[Chap.  205, 


Section  27.     If  the  principal  in  the  bond  is  a  resident  of  the  com- 


Obligor  may 

be  summoned  p       i  .  l     • 

in  certain  momvealth  at  the  commencement  or  the  action,  and  is  not  made  a 
1788,' 20,  §  2.  defendant  therein  or  is  not  served  with  process,  the  com-t  may,  at  the 
g'.  s.  loi.  §  26.  request  of  any  of  the  sureties,  continue  or  postpone  the  action  so  long 
R.L.  u9,V27.  ^s  may  be  necessary  to  simimon  or  bring  in  the  principal  as  provided 
in  the  following  section. 


Same  subject.  Section  28.  The  Sureties  may  take  out  a  ■nTit,  in  such  form  as  the 
R.  s.'7o.'§9.'  com-t  mav  prescribe,  to  arrest  the  principal  or  to  attach  his  goods  or 
p.'s.'i43,'§  17.'  estate,  and  to  summon  him  to  appear  and  answer  as  defendant  in  the 
^■^•"»- 5^^- original  action. 


If,  after  being  ser\'ed  with  such  process  foiu-teen  days 
at  least  before  the  time  appointed  for  him  to  appear  and  answer  to  the 
action,  he  neglects  so  to  do,  and  if  judgment  is  for  the  plaintiff,  such 
judgment  shall  be  rendered  against  the  principal  obligor  with  the  other 
defendants  in  the  same  manner  as  if  he  had  been  originally  a  party  to 
the  action.  An  attachment  or  bail  on  such  process  shall  be  liable  to 
respond  to  the  judgment  in  like  manner  as  if  made  or  taken  in  the  original  10 
action.  11 


Actions  upon 
bonds  of 
guardians, 
conser\*ators 
or  trustees. 
1786.  55. 
1810,  86,  I  3. 
1817,  190,  5  43. 
R.  S.  69,  §  13; 
79,  §  25. 


Section  29.     A  bond  given  by  a  guardian,  conservator  or  trustee  may  1 

be  put  in  suit  by  order  of  the  probate  court  for  the  benefit  of  any  person  2 

interested  in  the  estate,  and  the  proceedings  in  such  action  shall  be  con-  3 

ducted  in  like  manner  as  is  provided  relative  to  actions  on  bonds  given  4 

bv  executors  or  administrators.                     g.  s.  loo,  §  i2;  109,  §  28.  5 


p.  S.  143,  §  18. 
R.  h.  149,  §  29. 
1908,  295. 
1915,  23. 


19  Pick.  403. 
21  Pick.  36. 
140  Mass.  351. 
182  Mass.  332. 


188  Mass.  525. 
195  Mass.  133. 
215  Mass.  242. 
226  Mass.  218. 


Venue  of 
actions  upon 
bonds. 
1786,  55,  §  3. 
1810,  86,  §  3. 


Section  30.     An  action  on  a  bond  payable  to  a  judge  of  probate     1 
shall  be  brought  in  the  superior  court  held  for  the  county  where  the    2 

bond  was  taken.  1817,  190,  §  43.  R.  S.  69,  §  13;  70,  §  lO;  79,  §  25.  3 


G.  S   100,  §  12; 
101,  §28;  109,  §28. 


P.  S.  143,  §  19. 
1897,  131. 


R.  L.  149,  §  30. 
195  Mass.  133. 


Form  of 
execution  in 
action  on 
bond. 
1786,  55. 
1816,  94,  §  2. 
R.  S.  70,  §  10. 


Section  31.     If  the  court  finds  that  there  has  been  a  breach  of  the  1 

condition  of  the  bond  of  an  executor  or  administrator,  it  shall,  upon  2 

a  hearing  in  equity,  award  execution  in  the  name  of  the  plaintiff  as  3 

follows :  4 


G.  S.  101,  §  18. 
P.  S.  143,  §  20. 
R.  L.  149,  §  31. 


16  Gray,  267. 
110  Mass.  195. 
116  Mass.  552. 


155  Mass.  203. 
188  Mass.  525. 
223  Mass.  389. 


144  Mass.  135. 


107  Mass.  474. 
116  Mass.  552. 
129  Mass.  2215. 
138  Mass.  259. 
204  Mass.  233. 
215  Mass.  242. 


First,  If  the  action  is  brought  for  the  benefit  of  a  creditor,  execution  5 

shall  be  awarded  for  the  use  of  the  creditor  for  the  amount  due  him  6 

upon  the  judgment  which  he  has  recovered,  or  upon  the  decree  of  dis-  7 

tribution  in  his  favor.  8 

Second,  If  the  action  is  brought  for  the  benefit  of  a  person  who  is  9 

next  of  kin,  execution  shall  be  awarded  for  the  use  of  such  person  for  the  10 

amount  due  him  according  to  the  decree  of  the  probate  court.  11 

Third,  If  the  action  is  brought  for  a  breach  of  the  condition  in  not  12 

accounting  for  the  estate  as  required  by  law,  execution  shall  be  awarded,  13 

without  expressing  that  it  is  for  the  use  of  any  person,  for  the  full  value  14 

of  all  the  estate  of  the  deceased  which  has  come  to  the  hands  of  the  15 

executor  or  administrator  and  for  which  he  does  not  satisfactorily  ac-  16 

count,  and  for  all  damages  caused  by  his  neglect  or  maladministration.  17 


Chap.  205.]  bonds  of  executors,  trustees,  etc.  2223 

18  Fourth,  If  the  action  is  brought  for  any  other  breach  of  the  condi-  io7  Mass.  474. 

19  tion  of  the  bond,  execution  shall  be  awarded  for  such  amount  and  for 

20  the  use  of  such  person  or  persons,  or  \\ithout  expressing  it  to  be  for  the 

21  use  of  any  particular  person,  as  the  court  determines. 

22  Fifth,  If  there  are  two  or  more  persons  for  whose  use  execution  is  to  1  Mass.  69. 
2.3  be  awarded  as  proAided  in  this  section,  a  separate  execution  shall  be 

24  issued  for  the  amoimt  due  each. 

25  Sixth,  The  execution  shall  include  costs  of  suit,  as  well  as  the  debt 

26  or  damages;    and  if  there  is  more  than  one  execution,  costs  shall  be 

27  divided  between  them  as  the  court  orders. 

1  Section  32.     If  an  execution  awarded  under  the  preceding  section  is  Proceedings  if 

2  expressed  to  be  for  the  use  of  a  particular  person,  such  person  shall  be  Iwarded°fir 

3  considered  as  the  judgment  creditor,  and  may  cause  it  to  be  levied  in  pa^Sar  ^ 

4  his  name  and  for  his  benefit,  as  if  the  action  had  been  brought  and  the  ire|°°55  5 1 

5  judgment  recovered  in  his  name.  r.  s.  -0,  §  10.  ci.  7. 

G.  S.  101,  §  28.  cl.  7.  P.  S.  143,  §  21.  R.  L.  149,  §  32.  8  Gush.  289. 

1  Section  33.    If  such  execution  is  awarded  without  expressing  it  to  be  Proceedings  if 

2  for  the  use  of  any  particular  person,  all  money  received  thereon  shall  be  ^thout  ex- 

3  paid  to  the  co-executor  or  co-administrator,  if  any,  or  to  the  person  who  whrae^use""^ 

4  is  then  the  rightful  executor  or  administrator,  and  shall  be  assets  in  his  §■  |  loi.S^g 

5  hands  to  be  administered  according  to  law. 

P.  S.  143,  §  22.  R.  L.  149,  §  33.  9  Met.  625. 

1  Section  34.     If,  after  execution  has  once  been  awarded  in  an  action  Provision  for 

2  upon  a  bond,  the  executor  or  administrator  commits  a  new  breach  of  the  after  e'^^ecu- 

3  condition  of  the  bond,  or  if  a  creditor,  next  of  kin,  legatee  or  other  person  r°s.''7o!'^§'T2. 

4  interested  in  the  estate  has  a  claim  for  further  damages  on  account  of  any  ^'il^^'i  23' 

5  neglect  or  maladministration  of  the  executor  or  administrator,  a  writ  of  R-  l.  149,  §  34. 

6  scire  facias  on  the  original  judgment  may  be  sued  out  in  like  manner  as  is 

7  provided  for  the  commencement  of  the  original  action ;  and  the  court  shall 

8  thereupon  award  a  new  execution  in  like  manner  as  might  have  been  done 

9  in  the  original  action. 

1      Section  35.     No  action  shall  be  maintained  against  the  sureties  on  a  Limitation  of 

21         J      •  1  ].  ,  I  J        "j.!  •      J?  actions  against 

bond  given  by  a  guardian  or  conservator  unless  commenced  within  tour  sureties  c 


i  on 


3  years  from  the  time  of  the  discharge  of  the  guardian  or  conservator;  but  g^ardu 

consen 
1835,  1 
R.  S.  7 
G.  S.  109,  §  29. 


4  if  at  the  time  of  such  discharge  the  person  entitled  to  bring  such  action  is  Jgsl'^'^"'"'' 


11;  113. 

5  out  of  the  commonwealth,  it  may  be  commenced  within  four  years  after  g- 1-  ^j^  f^^, 

6  his  return.  p.  s.  139.  §  28. 


R.  L.  149,  I  35.  9  Gush.  68.  141  Mass.  507. 

1915,  23.  13  Gray,  661.  199  Mass.  109. 


REFERENCES. 

§     1.    Means  of  enforcing  payment  of  premium  on  surety  company  bonds,  Chap. 
21.5,  §  39. 

Bonds  of  public  administrators,  Chap.  194,  §  2. 

Bonds  given  by  trustees  in  certain  cases  of  absentees,  Chap.  203,  §  33. 

Right  of  executors,  etc.,  to  give  joint  control  of  assets  to  surety  on  bond,  Chap. 
17.5,  §  10.5. 
§    3.    But  see  Chap.  65,  §  16. 

§    4.    E.xemption  of  trust  companies,  Chap.  172,   §§  55,  58. 
§    8.   See  Chaps.  192,  §  4;   193,  §  7. 
§    9.   Giving  of  surety  company  bonds.  Chap.  175,  §  105. 
§  21.    See  Chap.  19S,  §  27. 


2224 


ACCOUNTS,  ETC.,  OF  EXECUTORS,  TRUSTEES,  ETC.        [ChAP.  206. 


CHAPTER    206. 

ACCOUNTS  AND  SETTLEMENTS  OF  EXECUTORS,  ADMINISTRATORS, 
GUARDIANS,   CONSERVATORS,   TRUSTEES   AND   RECEIVERS. 


Sect. 

1.  When  accounts  shall  be  rendered. 

2.  Forms  of  accounts. 

3.  Examination  on  oath. 

4.  Court  may  require  production  of  secu- 

rities and  moneys. 
6.  Personal  property  to  be  accounted  for 
at  appraised  value,  except,  etc. 

6.  Property  for  which  accountant  charge- 

able. 

7.  Allowance  of  guardian's  account. 

8.  Income  derived  from  real  estate  to  be 

accounted  for. 

9.  Mortgage  of  real  estate  to  be  personal 

assets. 

10.  In  case  of  redemption,  executor,  etc., 

to  release. 

11.  Land  taken  on  execution  by  executor, 

etc.,  to  be  personal  assets. 

12.  How  land  held  in  mortgage  or  on  execu- 

tion may  be  sold. 

13.  How  disposed  of  if  not  sold. 

14.  Allowance  for  burial  lot  and  monument. 

15.  Cost  of  perpetual  care. 

16.  Compensation  and  expenses  of  execu- 

tor, etc. 


Sect. 

17.  Expense  of  procuring  surety  chargeable 

on  estate. 

18.  Executor,  etc.,  liable  for  neglect  to  ac- 

count. 

19.  Opening  of  settled  accounts. 

20.  Allowance  of  account  of  joint  execu- 

tors, etc.,  on  oath  of  one. 

Distribution. 

Final  discharge  of  executor,  etc. 

Confirmation  of  distribution  by  admin- 
istrator without  order. 

Final  determination  of  account.    Guard- 
ian ad  litem,  etc. 
25.   Unclaimed  money  to  be  deposited  in 
savings  bank,  etc. 

Deposit  of  legacies,  etc.,  of  unknown 
legatees. 

Deposit  of  certain  funds. 

Final  disposition  of  deposits. 

If  beneficiaries  live  out  of  common- 
wealth, courts  may  order  trust  fund 
paid  over  to  trustee  in  another  state. 

30.  Same  subject. 

31.  Settlements  by  receivers. 


21. 

22. 
23. 


24 


When  accounts 
shall  be 
rendered. 
1752-3,  12,  §  1. 
R.  S.  67.  §  7. 
G.  S.  98,  §  9. 
1877,  102. 
P.  S.  144,  §  1. 
R.  L.  150,  §  1. 
1915,  23. 
1  Pick.  198. 
3  Pick.  365. 
7  Pick.  1. 


Section  1.     An  executor,  administrator,  guardian  or  conservator,  or  1 

a  trustee  required  by  law  to  give  bond  to  a  judge  of  probate,  shall  render  2 

an  account  relative  to  the  estate  in  his  hands  at  least  once  a  year  and  at  3 

such  other  times  as  shall  be  required  by  the  court,  until  his  trust  is  ful-  4 

filled;   but  the  court  may  at  his  request  excuse  him  from  rendering  an  5 

account  in  any  year,  if  satisfied  that  it  is  not  necessary  or  expedient  that  6 

it  should  be  rendered.  7 


3  Met.  74. 
6  Met.  553. 

4  Gush.  510,  513. 
8  Gush.  365. 

U  Gush.  107. 


6  Allen.  494. 
102  Mass.  350. 
116  Mass.  518. 
144  Mass.  195. 
191  Mass.  211. 


195  Mass.  133,  559. 
215  Mass.  419. 
220  Mass.  84. 
227  Mass.  392. 


Forms  of 

accounts. 

1895,  210. 

R.  L.  150,  §  2. 

1915.  23. 

146  Mass.  373. 

149  Mass.  520. 

151  Mass.  595. 

152  Mass.  328. 
166  Mass.  300. 
195  Mass.  559. 
202  Mass.  356. 
220  Mass.  84. 


Section  2.     Accounts  rendered  to  the  probate  court  by  an  executor,  1 

administrator,  trustee,  guardian  or  conservator  shall  be  for  a  period  dis-  2 

tinctly  stated  therein,  and  consist  of  three  schedules,  of  which  the  first  3 

shall  show  the  amount  of  personal  property  according  to  the  inventory,  4 

or,  instead  thereof,  the  amount  of  the  balance  of  the  next  prior  account,  5 

as  the  case  may  be,  and  all  income  and  other  property  received  and  gains  6 

from  the  sale  of  any  property  or  otherwise;   the  second  shall  show  pay-  7 

ments,  charges,  losses  and  distributions;  the  third  shall  show  the  invest-  8 

ment  of  the  balance  of  such  account,  if  any,  and  changes  of  investment.  9 

A  trustee  shall  state  in  his  accounts  the  receipts  of  principal  and  income  10 

separately  and  also  the  payments  and  charges  on  account  of  such  princi-  11 

pal  and  income  separately.  12 


Chap.  206.]       accoxotts,  etc.,  of  executors,  trustees,  etc.  2225 

1  Section  3.     An  executor,  administrator,  guardian,  conservator,  trustee  Examination 

2  or  receiver  may  be  examined  on  oath  before  the  court  upon  any  matters  r"  a  07,  §  7. 

3  relative  to  his  accounts.  g.  s.  98,  §  9.  p.  s.  144,  §  2. 

R.  L.  150,  §  3.  1  Pick.  530.  12  Pick.  166.  4  Gush.  510. 

1915,23.  11  Pick.  113.  6  Met.  553.  149  Mass.  520. 

1  Section  4.     In  settling  an  account  of  any  executor,  administrator.  Court  may 

2  trustee,  guardian  or  other  fiduciary,  the  probate  court  may  require  him,  d 


require  pro- 


uction  of 


securities  and 
moneys. 


3  or  any  of  them  if  there  are  more  than  one,  to  produce  during  the  pro- 

4  ceedings  or  afterward,  as  the  court  may  direct,  any  seciu^ities  or  moneys  ^^^^'  '*'•  ^  ^■ 

5  comprised  in  the  account  or  any  documents  relating  to  the  investments 

6  of  the  estate,  and  to  replace  any  moneys  or  property  that  have  been 

7  improperly  applied  or  disposed  of,  or  the  value  thereof,  and  to  pay  or 

8  transfer  the  same  or  any  moneys  or  property  with  which  he  or  they 

9  may  be  charged  into  a  proper  account  or  otherwise,  as  the  court  may 
10  order,  in  such  manner  that  the  same  shall  be  in  the  control  of  the  per- 
il sons  entitled  thereto;  and  the  proceedings  upon  every  such  account 

12  shall  be  considered  for  all  purposes  to  be  proceedings  in  equity,  and 

13  orders  and  decrees  of  the  court  therein  shall  be  enforceable  accordingly, 

14  and  execution  may  issue  for  any  such  moneys  against  the  fiduciary  per- 

15  sonally  as  upon  a  judgment  at  law  in  favor  of  the  persons  entitled  to  the 

16  control  thereof,  or  any  of  them,  for  the  benefit  of  all. 

1  Section  5.     An    executor,   administrator,  guardian,   conservator   or  Personal  prop- 

2  trustee  shall  account  for  the  personal  property  at  its  appraised  value,  iSounted  for 

3  but  he  shall  make  no  profit  by  the  increase  nor  sustain  any  loss  by  the  vaiue?except, 

4  decrease  or  destruction  of  any  part  thereof  without  his  fault.    If  he  sells  f^^j  jg^ 

5  any  of  the  personal  property  for  more  than  its  appraised  value,  he  shall  |§  i^,  34.' 

6  account  for  the  excess:    if  he  sells  for  less  than  its  appraised  value,  he  2,'4;'79,'§  20.' 

7  shall  be  allowed  for  the  loss  if  the  court  finds  that  the  sale  was  expedient  2,  eV  109,  §  17. 

8  and  for  the  interest  of  all  concerned;  and  he  shall  not  be  accountable  for  r,i;.\5o,|4. 

9  a  debt  inventoried  as  due  to  the  estate  if  the  court  finds  that  it  remains  2''Ma<«?'384 

10    uncollected  without  his  fault.  no  Mass.  369.  159  Mass.  185. 

1  Section  6.     An  executor,    administrator,   guardian,   conse^^•ato^   or  Property  for 

2  trustee  shall  be  chargeable  in  his  account  with  all  the  personal  property  rnt'char^geabie" 

3  of  the  estate  coming  to  him  and  which  is  by  law  to  be  administered,  R*a'67,°§5f' 

4  although  not  included  in  the  inventory;    also  with  all  proceeds  of  real  q  "g  gg  « 7. 

5  estate  which  is  sold  or  mortgaged,  and  with  all  interest,  profit  and  JoS;  §  i^. 

6  income  coming  to  him  from  tlie  personal  property.  R.  l.  150,  §  5. 

1915,23.  9  Mass.  337.  13  Gray,  387.  191  Mass.  211. 

1  Section  7.     No  final  account  or  discharge  of  a  guardian  of  an  insane  AUowanc*  of 

2  person  shall  be  allowed  unless  at  least  seven  days'  notice  has  been  given  ScTOunt" " 

3  to  the  department  of  mental  diseases. 

1909,  504,  §  101.  1919,  350,  §  79.  3  Op.  A.  G.  252. 

1  Section  8.     If  real  estate  of  a  deceased  person  is  used,  occupied  or  income  de- 

2  taken  charge  of  by  an  executor  or  administrator,  he  shall  account  for  rJilBTcstatc 

3  the  income  and  management  thereof  in  the  same  maimer  as  in  the  case  coiIiTtiTfor. 

4  of  personal  property.  i7S9,  u,  §  2.  r.  s.  67,  §  6. 

G.  S.  98,  §  8.  9  Met.  540.  99  Mass.  616.  145  Mass.  520. 

P.  S.  144,  §  5.  6  Gray,  338.  100  Mass.  218.  149  Mass.  262. 

R.  L.  150,  §  6.  12  Gray,  23fi.  106  Mass.  100.  152  Mass.  257. 

1913,248.  13  Gray,  326.  116  Mass.  552.  102  Mass.  56. 

16  Mass.  280.  1  Allen,  1.32.  125  Mass.  307,  311.  193  Mass.  38. 

1  Pick.  157.  5  .•Ulen,  87.  136  Mass.  297.  204  Mass.  233. 


2226 


ACCOUNTS,   ETC.,    OF  EXECUTORS,   TRUSTEES,    ETC.        [ChAP.   206. 


Mortgase  of 
real  estate 
to  be  personal 
assets. 
1786,  5.  §  1. 
1788,  51,  §  1. 
R.  S.  65.  §  11. 
G.  S.  90,  §  9. 
P.  S.  133.  §  6. 
R.  L.  150,  §  7. 
16  Mass.  18. 
U  Pick.  399. 
8  Gush.  225. 


Section  9.     If  a  mortgagee  of  real  estate  or  an  assignee  of  such  1 

mortgagee  dies  without  ha\'ing  foreclosed  the  mortgage,  the  mortgaged  2 

property  and  the  debt  secured  thereby  shall  be  personal  assets  in  the  3 

hands  of  his  executor  or  administrator,  and  shall  be  administered  and  4 

accounted  for  as  such ;   and  the  executor  or  administrator  shall  have  the  5 

same  rights  of  entry  and  of  action  under  said  mortgage  as  the  mortgagee  6 

or  his  assignee.  ii  Cush.  147.  7 


3  Grav,  504. 
10  Allen,  430. 


108  Mass.  379. 
128  Mass.  284. 


161  Mass.  487. 
175  Mass.  213. 


219  Mass.  266. 
223  Mass.  134. 


In  case  of 
redemption, 
executor,  etc., 
to  release. 
17SB,  5,  §§  2,  4. 
1788,  51, 
§§2,4. 
R.  S.  65,  §  12. 
G.  S.  96.  §  10. 
P.  S.  133,  §  7. 
R.  L.  150,  §  8. 


Section  10.     Upon  the  redemption  of  such  mortgage  the  money  paid  1 

thereon  shall  be  received  by  the  executor  or  administrator,  and  he  shall  2 

tliereupon  release  and  discharge  the  mortgage;   and  until  such  redemj)-  3 

tion  the  executor  or  administrator,  if  possession  has  been  taken  either  4 

by  himself  or  by  the  deceased,  shall  be  seized  of  the  mortgaged  property  5 

in  trust  for  the  persons  who  would  be  entitled  to  the  money  if  the  prop-  6 

erty  had  been  redeemed.  7 


Land  taken 
on  execution 
by  executor, 
etc.,  to  be 
personal 
assets. 
1786,  5,  §  3. 
1788,  51,  §  3.  • 
R.  S.  65.  §  13. 
G.  S.  96,  §  11. 
P.  S.  133,  §  8, 
R.  L.  150,  §  9. 
4  Mass.  598. 


Section  11.     If  an  executor  or  administrator  recovers  judgment  for  1 

a  debt  due  the  deceased,  and  levies  on  real  estate,  he  shall  be  seized  of  2 

such  real  estate  in  trust  for  the  persons  who  would  have  been  entitled  3 

if  tlie  judgment  had  been  satisfied  in  money;    and  the  real  estate  so  4 

ttiken  shall  be  considered  as  personal  assets  in  his  hands;    and  if  re-  5 

deemed,  the  money  shall  be  received  by  the  executor  or  administrator,  6 

who  shall  thereupon  release  the  real  estate.        17  Pick.  477.       3  Gray,  302.  7 


How  land  held 
in  mortgage 
or  on  execution 
may  be  sold. 
1786,  5,  §  3. 
1788,  51,  §  3. 
R.  S.  65,  §  14. 
1849,  47. 
1851,  288. 
1852.41. 
G.  S.  96,  §S 
13;  98.  §  5. 


12, 


Section  12.     Real  estate  held  by  an  executor  or  administrator  in  1 

mortgage,  or  taken  on  execution  by  him,  may,  at  any  time  before  the  2 

right  of  redemption  is  foreclosed,  be  sold  subject  to  such  right,  in  the  3 

same  manner  as  personal  property  of  a  person  deceased;  and  after  such  4 

right  has  been  foreclosed,  it  may  be  sold  in  the  same  manner  as  real  5 

estate  of  which  the  deceased  died  seized.                   p.  s.  133. 1 9.  6 


R.  L.  150,  ( 
1  Pick.  81. 


17  Pick.  477. 
10  Met.  403. 


13  Met.  126. 
3  Gray,  302. 


6  .\llen,  77. 
190  Mass.  27. 


How  disposed 
of  if  not  sold. 
1786,  5,  §  3. 
1788,  51,  §  3. 
R.  S.  65,  §  15. 
G.  S.  96.  §  14. 
P.  S.  133.  §  10 
R.  L.  150.  §  11. 
3  Gray,  504. 


Section  13.     If  real  estate  so  held  by  an  executor  or  administrator  in  1 

mortgage  or  on  execution  is  not  redeemed  or  sold  as  before  provided,  2 

it  shall  be  assigned  and  distributed  to  the  same  persons  and  in  the  3 

same  proportions  as  if  it  had  been  part  of  the  personal  property  of  the  4 

deceased;  and  if  upon  such  distribution  the  property  comes  to  two  or  5 

more  persons,  the  probate  court  may  cause  partition  thereof  to  be  made.  6 


!  0. 


Allowance  for 
burial  lot  and 
monument. 
1878,  228. 
P.  S.  144, 
1900,  147. 
R.  L.  150, 
1920.  46. 
10  Pick.  154. 
139  Mass.  304 
159  Mass.  185 


12. 


Section  14.  A  reasonable  amount  expended  for  a  burial  lot  and  a 
monument,  or  for  the  repair,  improvement  or  embellishment  of  a  burial 
lot  or  monument,  may  be  allowed  by  the  court  as  part  of  the  funeral 
expenses  of  a  deceased  person;  and  the  court  may  at  any  time,  upon 
petition  of  an  executor  or  administrator,  after  notice,  determine  the 
amount  which  may  be  expended.  167  Mass.  307. 577.  iso  Mass.  sos. 


petua?care.  Section  15.     Au  exccutor  or  administrator  may  pay  to  a  cemetery 

r^l!  iso,  1 13.  corporation  or  to  a  town  having  a  bm-ial  place  therein  a  reasonable 

lOTMaSJo?;   amount  for  the  perpetual  care  of  the  lot  in  which  the  body  of  the 

deceased  is  buried.     The  probate  court  shall  determine,  after  notice,  to 

whom  the  same  shall  be  paid  and  the  amount  thereof,  and  such  amount 

shall  be  allowed  the  executor  or  administrator  in  his  account. 


Chap.  206.]       accounts,  etc.,  of  executors,  trustees,  etc.  2227 

1  Section  16.     An  executor,  administrator,  guardian,  conservator  or  Compensation 

2  trustee  shall  be  allowed  his  reasonable  expenses  incurred  in  the  execution  ofexecutorfltc. 

3  of  his  trust,  and  shall  have  such  compensation  for  services  as  the  court  79,^5'  3I;  ^  ^' 

4  may  allow.  isss,  h4.  g.  s.  os,  §  lO;  109,  §31.  p.  s.  144.  §7. 

R.  L.  1.50,  §  14.  101  Mass.  592.  149  Mass.  375,  520. 

1915,23.  109  Mass.  252,  258,  541.  152  Mass.  328. 

1  Pick.  147.  117  Mass.  41.  161  M.as3.  188. 
5  Pick.  146.  121  Mass.  220.  163  Mass.  509. 
10  Pick.  77.  125  Mass.  307.  185  Mass.  14. 
16  Pick.  46.  128  Mass.  140.  192  Mass.  337. 

19  Pick.  473.  130  Mass.  262.  204  Mass.  233. 

20  Pick.  378.  140  Mass.  117,  351.  224  Mass.  145. 

2  Met.  420.  142  Mass.  422.  226  Mass.  231,  492. 

5  Allen,  87.  146  Mass.  373.  234  Mass.  374.  ' 

6  Allen,  494. 

1  Section  17.     Money  paid  with  the  approval  of  the  judge  of  probate  Expense  of 

2  to  a  corporation  qualified  to  act  in  the  commonwealth  in  guaranteeing  si™cty'charEe- 

3  the  fidelity  of  persons  and  in  acting  as  surety  on  bonds,  or  to  any  person  is86,°23f  *''*^' 

4  for  acting  as  surety  on  any  official  bond  given  to  such  probate  court,  JjsVi^s'  i5d' 

5  may  be  allowed  as  a  charge  against  the  estate. 

1  Section  18.     If  an  executor  or  administrator,  after  being  duly  cited  fab^for'  "'''■■ 

2  by  the  probate  court,  neglects  to  render  an  account  of  his  administra-  °pf^"„t*° 

3  tion,  his  bond  may  be  put  in  suit  as  provided  in  the  preceding  chapter;  q  |gMj-. 

4  and  if  he  persists  in  such  neglect,  judgment  shall  be  rendered  against  him,  p.'s.'i44,  §  8.' 

6  and  he  shall  be  liable  in  like  manner  and  to  the  same  extent  as  an  exec- 
6  utor  in  his  own  wrong. 

1  Section  19.     If  an  account  of  an  executor,  administrator,  guardian,  OpcmnEof 

2  conservator  or  trustee  is  settled  in  the  absence  of  a  person  adversely  founts.  ^"^ 

3  interested  and  without  notice  to  him,  it  may  be  opened  upon  his  appli-  c'lgs,'!  12! 

4  cation  at  any  time  within  six  months  after  such  settlement.     Upon  p%?'i^/4''§ 9 

5  the  settlement  of  an  account,  all  former  accounts  of  the  same  account-  ^^y^-  i^o,  §  17. 

6  ant  which  have  not  been  settled  according  to  section  twenty-four  or  1  Pick.  157. 

7  corresponding  provisions  of  earlier  laws  may  be  so  far  opened  as  to  7  pick!  1. 

8  correct  a  mistake  or  error  therein;  but  a  matter  in  dispute,  previously  lOPicL*??. 

9  heard  and  determined  by  the  court,  shall  not  without  leave  of  the  court  J|  p\l^-  j°^' 
10  be  again  brought  in  question  by  any  of  the  parties  to  such  dispute.         6°Mit''i94°' 

4  Gush.  513.  103  Mass.  177.  144  Mass.  415,  461.  188  Mass.  186. 

11  Gush.  107.  109  Mass.  541.  148  Mass.  434.  203  Mass.  328. 

12  Allen,  1.  128  Ma,s3.  532.  155  Mass.  203.  219  Mass.  40. 
9S  Mass.  462.  134  Mass.  120.  162  Mass.  56.  225  Mass.  380. 
101  Mass.  592.  137  Mass.  94.  186  Mass.  393.  227  Mass.  303. 

1  Section  20.     The  probate  court  may  allow  the  account  of  two  or  Allowance  of 

2  more  joint  executors,  administrators,  guardians,  conservators  or  trustees,  fofnTexe™- 

3  upon  the  oath  of  one  of  them.  r.  s.  70,  §3i;79,  §33.  oath  of^one" 

G.  S.  101,  §  6.  P.  S.  144,  §  11.  R,  L.  150,  §  IS.  1915,  23. 

1  Section  21.     If  the  estate  of  a  deceased  person  is  to  be  distributed  R'L"i5o'°§"i9 

2  in  whole  or  in  part,  the  probate  court,  on  petition  of  any  person  inter-  i-j*  Mass.  507. 

3  ested,  alter  such  notice  as  it  may  require,  may  order  the  executor  or  211  Mass.  i7.s. 

4  administrator  to  convert  the  personal  property  into  cash  and  distribute  *" 

5  it  among  the  persons  entitled  thereto. 


1  Section  22.     If  an  executor,  administrator,  guardian,  conservator  or  Final  discharge 

2  trustee  has  paid  or  delivered  to  the  persons  entitled  thereto  the  money  etc"'^"  °'' 

3  or  other  property  in  his  hands,  as  required  by  decree  of  a  probate  court,  §:  a  101,  §^7! 

4  he  may  perpetuate  the  evidence  thereof  by  presenting  to  said  court,  r.l.\m.|2o'. 


2228: 


ACCOUNTS,   ETC.,   OF  EXECUTORS,   TRUSTEES,   ETC.        [ChaP.   206. 


1915.  23. 
191  Mass.  211. 
229  Mass.  231. 
232  Mass.  83. 


within  one  year  after  the  decree  is  made,  an  account  of  such  payments  5 

or  of  the  delivery  of  such  property;  and  said  account,  upon  being  proved  6 

to  the  satisfaction  of  the  court,  and  verified  on  oath  by  the  accountant,  7 

shall  be  allowed  as  his  final  discharge  and  ordered  to  be  recorded.    Such  8 

discharge  shall  forever  exonerate  the  accountant  and  liis  sureties  from  all  9 

liability  under  such  decree  unless  his  account  is  impeached  for  fraud  or  10 

manifest  error.  11 


Confirmation 
of  distribution 
by  adminis- 
trator witiiout 
order. 
1894,  303. 
R.  L.  150.  I  21. 
1(36  Mass.  300. 


Section  23.     If  without  an  order  of  court  an  administrator  pays  or  1 

delivers  to  the  widow  or  husband  of  the  deceased  or  to  any  other  person  2 

any  money  or  other  property  in  his  hands,  and  thereafter  renders  an  ac-  3 

coimt  on  oath  with  a  full  and  detailed  statement  thereof,  and  after  notice  4 

it  appears  that  the  persons  to  whom  such  money  has  been  paid  or  prop-  5 

erty  delivered  would  have  been  entitled  to  an  order  of  court  for  such  6 

payment  or  delivery  and  that  such  account  ought  to  be  allowed,  the  7 

probate  court  may  make  a  decree  which  shall  have  the  same  effect  to  8 

discharge  and  exonerate  the  accountant  and  his  sureties  from  further  lia-  9 

bility  as  if  such  payment  or  delivery  had  been  made  under  a  previous  10 

order  of  the  probate  court.  11 


Final  determi- 
nation of 
account. 
Guardian  ad 
litem,  etc. 
1S77,  199, 
§§1.2. 
1879.  161, 
§§1.2. 

P.  S.  144.  §  13. 
1889,  406. 
1895.  2S8. 
R.  L.  150.  §  22. 
227  Mass.  392. 


Section  24.  If  an  account  has  been  filed  in  the  probate  court  and 
if  the  court  finds  that  the  items  of  said  account  should  be  finally  deter- 
mined and  adjudicated,  or  if  the  accountant  after  two  years  from  a 
former  adjudication  or  from  his  appointment  desires  such  determination 
and  adjudication,  notice  of  such  proposed  action  on  such  account  shall 
be  given  to  all  parties  as  it  may  order.  If  the  interest  of  a  person  un- 
born, unascertained  or  legally  incompetent  to  act  in  his  own  behalf  is 
not  represented  except  by  the  accountant,  the  court  shall  appoint  a 
competent  and  disinterested  person  as  guardian  ad  litem  or  next  friend  9 
for  such  person,  to  represent  his  interest  in  the  case.  The  person  so  ap-  10 
pointed  shall  make  oath  to  perform  his  duty  faithfully  and  impartially,  11 
and  shall  be  entitled  to  such  reasonable  compensation  as  the  court  12 
allows.  13 


Unclaimed 

money  to  be 

deposited  in 

savings  bank, 

etc. 

R.  S.  70,  §§  33. 

34. 

G.  S.  101,  §S. 

P.  S.  144.  §  16. 

R.  L.  150,  §  23. 

1915,  23. 

145  Mass.  517. 

153  Mass.  14. 

200  Mass.  594. 

223  Mass.  540. 


Section  25.  If  money  which  a  decree  of  a  probate  court  has  ordered  1 
to  be  paid  over  remains  for  six  months  unclaimed,  the  executor,  admin-  2 
istrator,  guardian,  conservator  or  trustee  who  was  ordered  to  pay  the  3 
same  may  deposit  it  in  a  savings  bank  or  other  like  institution,  or  4 
invest  it  in  bank  stock  or  other  stocks,  as  the  probate  court  orders,  to  5 
accumulate  for  the  benefit  of  the  person  entitled  thereto.  Such  deposit  6 
or  investment  shall  be  made  in  the  name  of  the  judge  of  probate  for  the  7 
time  being,  and  shall  be  subject  to  the  order  of  the  judge  and  of  his  8 
successors  in  office  as  hereinafter  provided.  The  person  making  such  9 
deposit  or  investment  shall  file  in  the  probate  court  a  memorandum  10 
thereof,  with  the  original  certificates  or  other  evidences  of  title  thereto,  11 
which  shall  be  allowed  as  a  sufficient  voucher  for  such  payment.  When  12 
the  person  entitled  to  the  money  deposited  satisfies  the  judge  of  his  right  13 
to  receive  it,  the  judge  shall  cause  it  to  be  paid  over  and  transferred  to  14 
him.  15 


SgMTi'eto.,  Section  26.  If  the  residence  of  a  legatee  under  a  will  duly  proved  1 
leKat^"™  or  of  a  person  entitled  to  a  portion  of  a  trust  fund  under  an  order  of  dis-  2 
1885,376.  tribution  provided  by  section  twenty-five  of  chapter  two  hundred  and     3 


Chap.  206.]       accounts,  etc.,  of  executors,  trustees,  etc.  2229 

4  three  is  unknown  or  if  he  is  a  minor  without  legal  guardian,  the  court  isss,  iss. 

5  may,  if  satisfied  of  such  fact,  order  the  legacy  or  share  of  the  trust  fund  r.  l!  iso,  §  24. 

6  due  him  to  be  deposited  or  invested  as  provided  in  and  subject  to  the  223  Mass!  540! 

7  preceding  section. 

1       Section  27.     If  an  executor,  administrator,  guardian,  conservator  or  Deposit  of 


certain  funds. 


2  trustee  has  money  which  he  considers  it  advisable  to  deposit  in  a  savings  ilgg.'go" 

3  bank  in  the  name  of  the  judge  of  probate  for  the  benefit  of  any  person,  f^]  \^\  ^  ~®' 

4  he  may  apply  to  the  probate  court  by  which  he  was  appointed  for  leave  HWi^  540 

5  so  to  do,  and  the  court  may  in  its  discretion,  without  notice,  direct  such 

6  money  to  be  so  deposited.     \Mien  the  deposit  is  made  the  deposit  book 

7  of  the  bank  shall  be  filed  in  said  court.     WTien  the  person  entitled  to 

8  such  money  satisfies  the  court  of  his  right  to  receive  it,  the  coiut  shall 

9  by  decree  direct  it  to  be  transferred  to  him. 

1  Section  28.     The  probate  court  may,  on  petition  of  any  person  in-  Final  disposi- 

2  terested  and  after  public  notice,  order  all  money  or  the  proceeds  thereof  i89o°408!Ti^ 

3  which  have  been  deposited  or  invested  by  its  authority  and  which  shall  fss^^a^ga'  I: 


22. 


26. 


4  have  remained  unclaimed  for  twenty  years  from  the  date  of  such  de-  211  Mass.  i98. 

5  posit  or  investment  to  be  paid  to  the  residuary  legatee,  if  any,  of  the 

6  testator  to  whose  estate  the  money  belonged,  or,  if  such  residuary  legatee 

7  is  dead,  to  his  heirs  living  at  the  time  of  such  distribution ;  and  if  no  such 

8  residuary  legatee  or  any  of  his  heirs  are  then  living,  or  if  the  deceased 

9  died  intestate,  said  money  and  the  proceeds  thereof  shall  be  disposed  of 

10  and  distributed  among  the  persons  entitled  thereto  and  in  the  manner 

11  provided  by  chapter  one  hundred  and  ninety.    The  court  shall  first  re- 

12  quire  from  the  persons  to  whom  such  money  shall  be  ordered  paid  a  suf- 

13  ficient  bond  of  indemnity,  with  two  sufficient  sureties  to  be  approved  by 

14  it,  conditioned  to  repay  to  the  persons  for  whose  benefit  such  deposit  or 

15  investment  was  originally  made,  or  to  the  personal  representatives  of 

16  such  persons,  all  money  paid  over  by  the  order  of  the  court  under  this 

17  section. 

1  Section  29.     If  all  living  parties  interested  as  beneficiaries  in  a  trust  n  beneficiaries 

2  created  by  a  will  allowed  in  the  commonwealth  reside  outside  thereof,  commonweaJth, 

3  the  probate  court  having  jurisdiction  of  the  trust  may,  on  petition  of  l°2lTu^. 

4  parties  in  interest  or  of  the  executor,  administrator  or  trustee,  if  it  t^^'Ju^gg  °^^'^ 

5  considers  it  just  and  expedient,  authorize  the  executor,  administrator  ?SSg''Y-6'^«*i 

6  or  trustee  to  pay  the  fund  to  a  trustee  appointed  by  the  proper  court  p.'s.'i44.'§i7". 

7  in  any  other  state  or  country,  if  all  living  beneficiaries  and  the  executor,    •   •     • 

8  administrator  or  trustee  signify  their  consent,  and  the  court  is  satisfied 

9  that  the  laws  of  such  other  state  or  country  secure  the  due  performance 

10  of  said  trust;  and  upon  such  pajTnent,  shown  to  the  satisfaction  of  said 

11  court,  the  executor,  administrator  or  trustee  appointed  here  may  be  dis- 

12  charged  from  further  responsibility  by  decree  of  said  court. 

1  Section  30.     If  there  are  contingent  interests  in  such  trust  fund,  fg^^ij^^i^a 

2  whether  the  persons  who  may  be  entitled  thereto  are  in  being  or  not,  E  l\^o  Vlj 

3  or  if  any  of  the  beneficiaries  are  minors,  the  court,  before  making  an  order 

4  or  decree,  shall  cause  such  interests  and  minors  to  be  properly  represented 

5  by  guardians  ad  litem  or  otherwise  at  its  discretion. 

1  Section  31.    The  following  claims  shall,  in  the  settlement  of  estates  settlements  by 

2  by  receivers,  be  entitled  to  priority  in  the  order  named:  iIqIt.''^. 


2230  ACCOUNTS,   ETC.,   OF  EXECUTORS,  TRUSTEES,   ETC.        [ChAP.   206. 

fn^Ma^ss'  22^^'      First,  Debts  due  the  United  States  or  debts  due,  or  taxes  assessed  by,  3 

176  Mass.  283.    the  Commonwealth  or  a  county,  city  or  town  therein.  4 

215  Mass!  156!       Second,  Wages  to  an  amount  of  not  more  than  one  hundred  dollars  5 

due  an  operative,  clerk  or  servant  for  labor,  either  performed  within  one  6 

year  last  preceding  the  appointment  of  the  receiver  or  for  the  payment  7 

for  which  a  suit,  which  was  commenced  within  one  year  after  the  per-  8 

formance  of  the  labor,  is  pending  or  was  terminated  within  one  year  9 

after  said  appointment.  10 

Third,  Debts  to  an  amount  of  not  more  than  fifty  dollars  due  physicians  11 

for  medical  attendance  on  the  debtor  or  his  family,  rendered  within  six  12 

months  prior  to  said  appointment.  13 

REFERENCES. 

Duty  of  city  and  town  auditors  to  audit  the  accounts  of  trustees  who  hold  prop- 
erty for  the  benefit  of  such  city  or  town  or  the  inhabitants  thereof,  Chap.  41,  §  53. 

Authority  of  the  probate  court  to  detcrnoine  the  amounts  due  to  appraisers  and 
other  persons  for  services  in  connection  with  the  handUng  of  estates,  and  to  enforce 
payment  of  the  same,  Chap.  215,  §  39. 

Charging  of  brokers',  etc.,  commissions  to  principal  rather  than  income,  Chap. 
203,  §  22. 

§§  1,  2.     Requirements  contained  in  the  bonds  of  executors, etc.,  Chap.  205,  §§  1-3. 
§     5.     Authority  of  the  probate  court  to  appoint  auditors  on  accounts.  Chap.  221, 

§57. 
I  14.     Payment  of  funeral  expenses  by  a  special  administrator,  Chap.  193,  §  14. 
§  16.     Allowance  for  costs  on  a  judgment  against  executor  or  administrator  in  a 

representative  capacity,  Chap.  230,  §  8. 
§  18.     Executors  in  their  own  wrong,  Chap.  195,  §§  14,  15. 
I  21.     Authority  of  the  probate  court  to  enforce  payment.  Chap.  197,  §  24. 
§  24.     Requirement  of    payment  of  inheritance   and  income  taxes  before   final 
accounts  of  executors,  administrators,  trustees  and  other  fiduciaries  can 
be  allowed,  Chap.  65,  §  23. 
Allowance  of  final  account  without  payment  of  inheritance  tax  on  future 
interest,  Chap.  65,  §  24. 
§  25.     Disposition  of  money  paid  into  the  courts  for  the  county  of  Suffolk,  Chap. 

35,  §  23. 
§  28.     For  another  provision,  see  Chap.  168,  §  41. 

Appointment  of  administrator  de  bonis  non  to  make  distribution,  Chap. 
193,  §  9. 


Chap.  207.] 


AIAREIAGE. 


2231 


TITLE. III. 

DOMESTIC   RELATIONS. 

Chapter  207.  Marriage. 

Chapter  208.  Divorce. 

Chapter  209.  Husband  and  Wife. 

Chapter  210.  Adoption  of  Children  and  Change  of  Names. 


CHAPTER    207 


MARRIAGE. 


Sect. 

certain  marriages  pbohibited. 

1.  Marriage  between  certain  relatives  pro- 

hibited. 

2.  Same  subject. 

3.  Same  subject. 

4.  Polygamous  marriage  void. 

5.  Insane  persons  incapable  of  marrying. 

6.  Marriage   during   existence   of   former 

marriage  valid,  when. 

7.  Minors  not  to  be  married  without  con- 

sent of  parents,  etc. 

8.  Marriages  void  without  decree,  when. 

9.  Marriages  between  minors  void  after 

separation,  etc. 

10.  Foreign  marriages  void,  when. 

11.  Certain  marriages  contrary  to  laws  of 

other  states  forbidden. 

12.  Licensing  officer  to  ascertain  legal  abil- 

ity to  marry  of  non-residents. 

13.  Construction    of  three   preceding   sec- 

tions. 

14.  Determination  of  validity  of  marriage. 

LEGITIMACY     AND     CARE     OF    ISSUE     OF    VOID 
MARRIAGES. 

15.  Issue   of   certain   void   marriages   ille- 

gitimate. 

16.  Issue  of  marriage  void   by  reason   of 

nonage,  insanity,  etc. 

17.  Issue   of   marriage   void   by   reason   of 

prior  marriage. 

18.  Care  and  maintenance  of  children  of 

void  marriage. 

NOTICE    OF    INTENTION    OF  MARRIAGE. 

19.  Notice  to  be  filed  five  days  in  advance. 

20.  Notice  to  be  in  writing  under  oath. 


Sect. 

21.  Certificate,  etc.,  of  divorce  to  accom- 

pany notice  of  divorced  person. 

22.  Oath  before  judge  of  probate  court  in 

place  of  certificate. 

23.  Notice,  where  and  when  receivable. 

24.  Notice    not    receivable    from    certain 

minors. 

25.  Marriage    of    such    minors,    how    au- 

thorized. 

26.  Notice  not  to  be  given  without  con- 

sent of  parties.    How  cancelled. 

27.  Notice  in  case  of  adopted  persons. 

28.  Certificate  of  intention  of  marriage. 

29.  Five  days'  notice  not  required  of  immi- 

grants. 

30.  Five  days'  notice,  how  dispensed  with. 

31.  Alteration    of   certificate    of   intention 

prohibited. 

32.  Clerk  or  registrar  not  to  issue  certifi- 

cate without  facts  relative  to  divorce. 

33.  Certificate  not  to  be  issued  to  certain 

minors. 

34.  Duplicate  copies  of  notice  of  intention 

of  minors,  when. 

35.  Refusal  of  certificate,  when. 

36.  Citizens     married     outside     common- 

wealth to  file  certificate  here. 

37.  List  of  impediments  to  marriage  to  be 

posted  in  ofiice  of  clerk  or  registrar. 

SOLEMNIZATION    OF    MARRIAGE. 

38.  Solemnization  of  marriago. 

39.  Designation  of  justices  of  the  peace  to 

solemnize  marriage. 

40.  Persons  solemnizing  marriages  to  keep 

records  and  make  returns. 

41.  Correction  of  imperfect  certificates  of 

marriage. 


2232 


IVL\REIAGE. 


[Chap.  207. 


Sect. 

42.  Marriages     valid     though     irregularly 

solemnized. 

43.  Marriage  by  consul,  etc. 

44.  Fees  by  cities  and   towns   to   persons 

solemnizing  marriages. 

EVIDENCE    OF    MARRIAGE. 

45.  Record. 

46.  Certificate,  etc.,  of  consul,  etc.  " 

47.  Admissions  and  general  repute,  etc. 


48. 


49 


PENALTIES. 

Penalty  for  solemnizing  marriage  with- 
out authority. 

Penalty  for  joining  persons  in  marriage 
without  certificate. 
50.  Penalty  for  knowingly  is.suing  certifi- 
cate or  performing  marriage  in  eva- 
sion of  laws  of  another  state. 


Sect. 

51.  Penalty  for  -vaolation   of  certain  pro- 

visions of  this  chapter. 

52.  Penalty  for  violation  of  law  relative  to 

making  out  notice  of  intention,  and 
false  statement  therein. 

53.  Penalty   for   issuing   certificate   of   in- 

tention to  persons  under  age. 

54.  Penalty  for  illegal  alteration  of  certifi- 

cate of  intention. 

55.  Penalty  for  failure  of  citizens  married 

outside  commonwealth  to  file  certifi- 
cate. 

56.  Penaltj'   for   failure   to  make   records 

and  returns  of  marriages. 

57.  Penalty  for  failure  to  return  certificate 

of  intention  of  marriage. 

58.  Penalty    for    advertising    to    perform 

marriage  ceremony. 


Marriage 
between  certain 
relatives 

grohibited. 
;.  L.  102,  §  S. 
1695-6,  2.  §  1. 
1785.  69,  §  1. 
R.  S.  75.  5  1. 
G.  S.  106,  §  1. 


CERTAIN   5I.ARRL\GES   PROHIBITED. 

Section  1.     No  man  shall  marry  his  mother,  grandmother,  daughter,  1 

granddaughter,  sister,  stepmother,  grandfather's  wife,  son's  wife,  grand-  2 

son's  wife,  wife's  mother,  wife's  grandmother,  wife's  daughter,  wife's  3 

granddaughter,  brother's  daughter,  sister's  daughter,  father's  sister  or  4 

mother's  sister.  p.  s.  145.  §  1.  r.  l.  i5i,'§  1.  213  Mass.  334.  5 


Same  subject. 
1785,  69,  §  1. 
R.  S.  75,  §  2. 
G.  S.  106,  §  2. 
P.  S.  145,  §  2. 
R.  L.  151,  §  2. 
10  Met.  451. 
213  Maas.  334. 


Section  2.     No  woman  shall  marry  her  father,   grandfather,   son,  1 

grandson,  brother,  stepfather,  grandmother's  husband,  daughter's  hus-  2 

band,   granddaughter's  husband,   husband's  father,   husband's  grand-  3 

fa4ier,  husband's  son,  husband's  grandson,  brother's  son,  sister's  son,  4 

father's  brother  or  mother's  brother.  5 


Same  subject. 
R.  S.  75,  §  3. 
G.  S.  106,  §  3. 
P.  S.  145,  §  3. 
R.  L.  151,  §  3. 
213  Masa.  334. 


Section  3.     The  prohibition  of  the  two  preceding  sections  shall  con-  1 

tinue  notwithstanding  the  dissolution,  by  death  or  divorce,  of  the  mar-  2 

riage  by  which  the  affinity  was  created,  unless  the  divorce  was  granted  3 

becaise  such  marriage  was  originally  unlawful  or  void.  4 


Polygamous 
marriage  void. 

1784,  40,  §  2. 

1785.  69,  I  2. 
R.  S.  75,  5  4. 


Section  4.     A  marriage  contracted  while  either  party  thereto  has  1 

a  former  wife  or  husband  living,  except  as  provided  in  section  six  and  in  2 

chapter  two  hundred  and  eight,  shall  be  void.  3 

G.  S.  106.  §  4.  R.  L.  151,  §  4.  170  Mass.  150.  213  Mass.  334. 


P.  S.  145.  I  4. 


113  Mass.  458. 


171  Mass.  560. 


214  Mass.  77 


Insane  i 


;  pers- 
incapable  of 


ions 


Section  5.  An  insane  person  or  an  idiot  shall  be  incapable  of  con- 
R*a*75f§  5  tracting  marriage.  The  validity  of  a  marriage  shall  not  be  questioned 
1843. 5  by  reason  of  the  insanity  or  idiocy  of  either  party  in  the  trial  of  a  col- 


1845.  222 
G.S.  lOB,  I  5 
107,  §  2. 


lateral  issue,  but  shall  be  raised  only  in  a  process  instituted  in  the  life- 
p.s.  145,  H  5, 9.  time  of  both  parties  to  test  such  validity.  R.  l.  isi,  §  5. 

12  Mass.  363.  4  Pick.  32.  4  Allen,  458.  213  Mass.  334. 


Marriage 
during  ex- 
istence of 
former  niar- 
riage  valid, 
when. 
1895,  427. 


Section  6.     If  a  person,  during  the  lifetime  of  a  husband  or  wife  1 

with  whom  the  marriage  is  in  force,  enters  into  a  subsequent  marriage  2 

contract  with  due  legal  ceremony  and  the  parties  thereto  live  together  3 

thereafter  as  husband  and  wife,  and  such  subsequent  marriage  contract  4 


Ch.\P.    207.]  MARRIAGE.  2233 

5  was  entered  into  by  one  of  the  parties  in  good  faith,  in  tlie  full  belief  ^^^-  *|^-  ^  g 

6  that  the  former  husband  or  wife  was  dead,  that  the  former  marriage  had  i™  Niaes'.  iso. 

7  been  annulled  by  a  divorce,  or  without  knowledge  of  such  former  mar-  iw  Mass.  179.' 

8  riage,  they  shall,  after  the  impediment  to  their  marriage  has  been  re-  iSe  uT^'.  280! 

9  moved  by  the  death  or  divorce  of  the  other  party  to  the  former  marriage,  032  Mast  253! 

10  if  they  continue  to  live  together  as  husband  and  wife  in  good  faith  on 

1 1  the  part  of  one  of  them,  be  held  to  have  been  legally  married  from  and 

12  after  the  removal  of  such  impediment,  and  the  issue  of  such  subsequent 

13  marriage  shall  be  considered  as  the  legitimate  issue  of  both  parents. 

1  Section  7.     A  magistrate  or  minister  shall  not  solemnize  a  marriage  Minors  not  to 

2  if  he  has  reasonable  cause  to  belie\-e  that  the  male  is  under  twenty-one  wtthout'consent 

3  or  the  female  is  under  eighteen,  except  with  the  consent  of  the  parent  loiw-s^S'.^'i. 

4  or  guardian  having  the  custody  of  the  minor,  if  there  is  any  such  parent  \%^s  H  *■ 

5  or  guardian  in  the  commonwealth  competent  to  act.         R.  s.  75.  §15.  i834, 177,  §  2. 

G.  S.  106,  §  13.  R.  L.  151,  §  7.  Penalty,  §  51. 

P.  S.  145,  §  6.  1  Gray,  119. 

1  Section  8.     A  marriage  solemnized  within  the  commonwealth  which  Marriages 

2  is  prohibited  by  reason  of  consanguinity  or  affinity  between  the  parties,  dMre^when. 

3  or  of  either  of  them  having  a  former  wife  or  husband  living,  shall  be  i785769^§V^' 

4  void  without  a  decree  of  divorce  or  other  legal  process.  ^'  ^'  ^'^'  ^  ^' 

G.  S.  107,  §  1.  P.  S.  145,  §  7.  R.  L.  151,  §  8. 

1  Section  9.     A  marriage  solemnized  when  either  party  is  under  four-  Marriages  be- 

2  teen  if  a  male,  or  twelve  if  a  female,  shall  be  void  without  a  decree  of  voi'd  afte""'^^ 

3  divorce  or  other  legal  process  if  the  parties  separate  during  such  nonage  r!'" Veri^"."^' 

4  and  do  not  afterward  cohabit. 

G.  S.  107,  §  3.  P.  S.  145,  §  8.  R.  L.  151,  i  9.  1  Gray,  119. 

1  Section  10.     If  any  person  residing  and    intending  to  continue  to  Foreign  mar- 

2  reside  in  this  commonwealth  is  disabled  or  prohibited  from  contracting  wK  ™'  ' 

3  marriage  under  the  laws  of  this  commonwealth  and  goes  into  another  q[  s!  io6,S%. 

4  jurisdiction  and  there  contracts  a  marriage  prohibited  and  declared  void  r  l.Ysi,V?o. 

5  by  the  laws  of  this  commonwealth,  such  marriage  shall  be  null  and  void  5o^fJip^t''4M  ^' 

6  for  all  purposes  in  this  commonwealth  with  the  same  effect  as  though  }57  Mass.  73 

7  such  prohibited  marriage  had  been  entered  into  in  this  commonwealth.     i7i  Mass'  nm'. 

211  Mass.  512.  213  Mass.  334.  219  Mass.  111.  232  Mass.  253. 

1  Section  11.     No  marriage  shall  be  contracted  in  this  commonwealth  Certain  mar- 

2  by  a  party  residing  and  intending  to  continue  to  reside  in  another  tofawso" other 

3  jurisdiction  if  such  marriage  would  be  void  if  contracted  in  such  other  bwdln.""^ 

4  jiu-isdiction,  and  every  marriage  contracted   in  this  commonwealth  in  ^^^^'  ^^^'  ^  ^■ 

5  violation  hereof  shall  be  null  and  void. 

1  Section  12.     Before  issuing  a  license  to  marry  a  person  who  resides  Licensing 

2  and  intends  to  continue  to  reside  in  another  state,  the  officer  having  ^certain  legal 

3  authority  to  issue  the  license  shall  satisfy  himself,  by  requiring  affidavits  marry  o°non- 

4  or  otherwise,  that  such  person  is  not  prohibited  from  intermarrying  by  jg^'fl^s^,  §  3 

5  the  laws  of  the  jurisdiction  where  he  or  she  resides. 

1  Section  13.     The  three  preceding  sections  shall  be  so  interpreted  and  o^t'hrrapr^ 

2  construed  as  to  effectuate  their  general  purpose  to  make  uniform  the  5^3"^6o'"'«'5^' 

3  law  of  those  states  which  enact  like  legislation. 


2234 


MARRL\GE. 


[Chap.  207. 


Determination 

of  validity  of 

marriage. 

R.  S.  76,§§3,  4. 

1846.  197. 

1835.  27. 

G.  S.  107, 

§§4,5. 

P.  S.  145,  §  11. 

1886,  36. 

R.  L.  151,  §  11. 

114  Mass.  563, 

566. 

144  Mass.  163. 

149  Mass.  223. 

156  Mass.  578. 

161  Mass.  111. 

171  Mas3.  404. 

174  Mass.  216. 

175  Mass.  157, 
383. 

214  Mass.  77. 

223  Mass.  62. 

224  Mass.  392, 
438. 

4  0p.  A.  G.  176. 


Section  14.  If  the  validity  of  a  marriage  is  doubted,  either  party  1 
may  file  a  libel  for  annulling  such  marriage,  or  if  it  is  denied  or  doubted  2 
by  either  party,  the  other  party  may  file  a  libel  for  affirming  the  mar-  3 
riage.  Such  libel  shall  be  filed  in  the  same  manner  as  a  libel  for  divorce,  4 
and  all  the  provisions  of  chapter  two  hundred  and  eight  relative  to  5 
libels  for  divorce  shall,  so  far  as  appropriate,  apply  to  libels  under  this  6 
section.  Upon  proof  of  the  validity  or  nullity  of  the  marriage,  it  shall  7 
be  affirmed  or  declared  A-oid  by  a  decree  of  the  court,  and  such  decree  of  8 
nullity  may  be  made  although  the  marriage  was  solemnized  out  of  the  9 
commonwealth,  if  at  that  time  and  also  when  the  libel  was  filed  the  10 
libellant  had  his  domicil  in  the  commonwealth,  or  if  he  has  resided  in  11 
this  commonwealth  for  five  years  last  preceding  the  filing  of  said  libel,  12 
unless  the  court  finds  that  he  has  removed  into  this  commonwealth  for  13 
the  purpose  of  obtaining  said  decree.  14 


LEGITIMACY    AND    CARE    OF   ISSUE    OF   VOID    M.\RRLVGES. 


Section  15.     The  issue  of  a  marriage  declared  void  by  reason  of     1 

9 


Issue  of  certain 

void  marriages  ,    , 

^eptimate.  cousanguinity  or  affinity  between  the  parties  shall  be  illegitimate. 

■    ■      ■  ■  G.  S.  107,  §  28.  P.  S.  145,  §  12.  R.  L.  151,  §  12. 


rSgevoidby         SECTION  16.     The  issuc  of  a  marriage  declared  void  by  reason  of  1 

reason  of  nouage,  insanity  or  idiocy  of  either  party  shall  be  the  legitimate  issue  2 

of  the  parent  who  was  capable  of  contracting  the  marriage.  3 

R.  S.  76,  §  22.  G.  S.  107,  §  29.  P.  S.  145,  §  13.  R.  L.  151,  §  13. 


nonage,  in- 
sanity, etc. 


Issue  of  mar- 
riage void  by 
reason  of  prior 
marriage. 
R.  S.  76,  §  23. 
G.  S.  107,  §  30. 
P.  S.  145,  §  14. 
R.  L.  151,  §  14. 
1902,  310. 
114  Mass.  563. 
156  Mass.  578. 
223  Mass.  451. 
228  Mass.  602. 


Section  17.  If  a  marriage  is  declared  void  by  reason  of  a  prior 
marriage  of  either  party  and  the  court  finds  that  the  second  marriage 
was  contracted  with  the  full  belief  of  the  party  who  was  capable  of 
contracting  the  second  marriage  that  the  former  husband  or  wife  was 
dead,  or  that  the  former  marriage  was  void,  or  that  a  divorce  had  been 
decreed  leaving  the  party  to  the  former  marriage  free  to  marry  again, 
such  finding  shall  be  stated  in  the  decree,  and  the  issue  of  the  second 
marriage,  if  born  or  begotten  before  the  second  marriage  was  declared 
void,  shall  be  the  legitimate  issue  of  the  parent  capable  of  contracting 
the  marriage. 


9 
10 


Care  and  Section  18.     Upou  or  after  a  decree  of  nullity,  the  court  shall  have     1 

mamtenance  of...  ^    ^        .  .,  ^  i 

children  of  void  like  powcr  to  make  orders  relative  to  the  care,  custody  and  mamtenance    2 
of  the  minor  children  of  the  parties  as  upon  a  decree  of  divorce.  3 

R.  S.  76,  §  26.  G.  S.  107,  §  33.  P.  S.  145,  §  15.  R.  L.  151,  |  15. 


marriage. 
1820,  56,  §  1. 


Notice  to  be 
filed  five  days 
in  advance. 
C.  L.  101,  §  2. 
1695-6,  2,  §  4. 
1727-8,  11. 
1786,  3,  S  3. 
1834,  177.  §  2. 
R.  S.  75,  5  7. 
1850,  121,  §  1. 
G.  S.  106,  §  7. 


notice  of  intention  of  marriage. 

Section  19.     Persons   intending   to   be  joined   in   marriage   in   the  1 

commonwealth   shall,   not  less  than   five   days   before  their   marriage,  2 

cause  notice  of  their  intention  to  be  filed  in  the  office  of  the  clerk  or  3 

registrar  of  the  town  where  each  of  them  dwells,  or,  if  they  do  not  4 

dwell  within  the  commonwealth,  in  the  office  of  the  clerk  or  registrar  5 

of  the  town  w'here  they  propose  to  have  the  marriage  solemnized.  6 

3  Op.  A.  G.  467. 


1867,  68,  §  1. 
P.  S.  145,  §  16. 


R.  L.  151,  §  16. 
1911,  736,  §  1. 


Section  20.     The  clerk  or  registrar  shall  require  WTitten  notice  of     1 


Notice  to  be 
in  writing 

1S53,'^335',''§  2.     intention  of  marriage  to  be  given  him  on  blanks  furnished  by  him,  by     2 
G.  s.  106,  §  10.   one  of  the  parties  to  such  intended  marriage,  or  by  his  or  her  parent     3 


Chap.  207.]  ilvrrla.ge.  2235 

4  or  legal  guardian,  and  shall  require  the  party  giving  such  notice  to  make  p.  s.  i45.  §  19. 

5  oath  before  him  or  before  a  regularly  employed  clerk  in  his  ofEce  desig-  R^^L.'fsf.'iVi?. 

6  nated  by  him  in  writing  and  made  a  matter  of  record  in  the  office,  to  19^2, 120,  §  1. 

7  the  truth  of  all  the  statements  therein,  whereof  he  or  she  could  have  \l\f  l^f  t  ^■ 

8  knowledge,  and  also  to  make  oath  that  there  are  no  legal  impediments  „ 

9  to  such  intended  marriage.    In  towns  having  an  assistant  clerk  or  regis-  false  oath, 

10  trar  he  may  administer  the  oath.    No  fee  shall  be  charged  for  adminis-  '^ "" 

1 1  tering  such  oath. 

1  Section  21.     Persons  filing  such  notice  of  intention,  one  or  both  of  Certificate  etc , 

...  'iiT  .  divorce  to 

2  whom  have  previously  been  married  and  divorced,  shall  file  therewith  a  accompany 

3  certificate  or  certified  copy  from  the  clerk  or  corresponding  official  of  vorccd  peraon. 

4  the  court  or  other  tribunal  by  which  the  divorce  was  granted,  showing  4'op!  a.  6. 223. 

5  the  title  and  location  of  the  tribunal  and  the  names  of  the  parties  to 

6  the  proceeding  for  divorce,   and   showing  which  party  obtained  the 

7  divorce,  the  cause  therefor  and  the  date  when  the  decree  became  abso- 

8  lute.     If  there  has  been  more  than  one  divorce,  the  said  certificate  or 

9  certified  copy  as  to  every  such  divorce  shall  accompany  the  notice  of 
10  intention. 

1  Section  22.     If  a  person  cannot  obtain  the  certificate  or  certified  oath  before 

2  copy  described  in  the  preceding  section,  he  shall  apply  to  the  judge  of  bate  court  in 

3  probate  in  the  county  where  the  notice  of  intention  is  to  be  filed  and  rat^  °  ""'  ' 

4  state  under  oath  the  facts  required  to  be  stated  in  the  said  certificate  or  ^^'^'  ^^^'  ^  ^' 

5  certified  copy,  and  the  reasons  why  such  certificate  or  certified  copy 

6  cannot  be  obtained.    The  judge  of  probate,  if  satisfied  of  the  truth  of 

7  the  statements  so  made  to  him,  shall  thereupon  grant  to  the  party  a 

8  certificate  stating  the  facts  required,  and  such  certificate  shall  be  filed 

9  with  the  notice  of  intention. 

1  Section  23.     The  clerk  or  registrar  need  not  receive  notices  of  in-  Notice,  where 

2  tention  of  marriage  on  Sunday  or  a  legal  holiday,  nor  at  any  place  ^Sva'bie." '^ 

3  except  his  office.  is94, 409.  §  3.  r.  l.  isi,  §  is. 

1  Section  24.     The  clerk  or  registrar  shall  not,  except  as  provided  in  Notice  not  re- 

2  the  following  section,  receive  a  notice  of  the  intention  of  marriage  of  a  certain  mmora. 

3  male  under  eighteen,  nor  of  a  female  under  sixteen. 

1894,401,11.  R.  L.  1.51,  §  19. 

1  Section  25.     The  probate  court  for  the  county  where  a  minor  under  Marriage  of 

2  the  age  specified  in  the  preceding  section  resides  may,  after  hearing,  ho°wa"thor!ied. 

3  make  an  order  allowing  the  marriage  of  such  minor,  if  the  father  of  J^gg'  *^][  ^  ^■ 

4  such  minor  or,  if  he  is  not  living,  or  if  he  lives  out  of  the  commonwealth  Rg^L.  im,  §  20. 

5  or  has  deserted  his  family,  the  mother  or,  if  neither  parent  is  alive,  and 

6  resident  in  the  commonwealth,  a  legal  guardian  has  consented  to  such 

7  order.     If  the  parent  whose  consent  would  be  required  if  living  in  the 

8  commonwealth  lives  outside  thereof  and  the  address  of  such  parent  is 

9  known,  such  notice  of  the  proceedings  shall  be  given  him  as  the  probate 
10  court  may  order;  but  no  notice  need  be  given  to  a  parent  who  has  de- 
ll serted  his  family.    Said  court  may  also  after  hearing  make  such  order 

12  in  the  case  of  a  person  whose  age  is  alleged  to  exceed  that  specified  in 

13  the  preceding  section,  but  who  is  unable  to  produce  an  official  record 

14  of  birth,  whereby  the  reasonable  doubt  of  the  clerk  or  registrar,  as 

15  exercised  under  section  thirty-five,  may  be  removed.    Upon  receipt  of  a 


2236 


MARRIAGE. 


[Chap.  207. 


certified  copy  of  such  order  by  the  clerk  or  registrar  of  the  town  where  16 
such  minor  resides,  he  shall  receive  the  notice  required  by  law  and  issue  17 
a  certificate  as  in  other  cases.  18 


Notice  not  to 
be  given  with- 
out consent  of 
parties.     How 
cancelled. 
1894,  409, 
§5  6,  7. 
R.  L.  151,  §  21. 

Penalty,  §  51. 


Section  26.     Whoever,  without  the  consent  of  both  parties  to  an  1 

intended  marriage,  gives  the  notice  of  their  intention  of  marriage  re-  2 

quired  by  law  shall  be  liable  in  damages  to  either  of  such  parties  whose  3 

name  was  so  used  without  such  consent.     The  superior  court,  upon  4 

petition  of  either  party  alleged  to  intend  marriage  in  such  a  notice  5 

given  without  the  consent  of  both  parties,  and  not  followed  by  their  6 

intermarriage,  may,  after  notice  and  a  hearing,  order  that  such  notice  7 

of  intention  be  cancelled  in  the  town  records.  8 


S°adoVt^°''^        Section  27.     A  party  to  an  intended  marriage  who  has  been  legally  1 

189?! 424. 1 4     adopted  shall,  in  the  notice  of  intention  thereof,  give  the  names  of  his  2 

R.  L.  151,  §  22.  parents  by  adoption;   and  the  names  of  his  parents  may  also  be  added.  3 

The  consent  of  a  parent  by  adoption  to  the  marriage  of  a  minor  shall  4 

be  sufficient  if  the  consent  of  a  parent  of  a  minor  is  required  by  law  as  5 

a  preliminary  to  marriage.    If  the  natural  parents  of  a  minor  have  been  6 

divorced  and  the  consent  of  one  of  them  is  required  by  law,  preliminary  7 

to  the  marriage  of  such  minor,  the  consent  of  the  parent  having  the  8 

custodv  of  such  minor  shall  be  sufficient.  9 


Certificate  of 
intention  of 
marriage. 
1727-S,  11. 
1786,  3,  §  3. 
1834,  177,  §  2. 
R.  S.  75,  §  9. 
1850,  121,  §  2. 
G.  S,  106,  §  S. 
1867,  58,  §  1. 
P.  S.  145.  §  17. 
R.  L.  151,  §  23. 
1911,736,  §  2. 
1912,463,  I  1. 
1914,  428,  §  1, 
3  Op.  A.  G.  467. 


Section  28.     On  or  after  the  fifth  day  from  the  filing  of  notice  of  1 

intention  of  marriage,  except  as  otherwise  provided,  the  clerk  or  regis-  2 

trar  shall  deliver  to  the  parties  a  certificate  signed  by  him,  specifying  3 

the  date  when  notice  was  filed  with  him  and  all  facts  relative  to  the  4 

marriage  which  are  required  by  law  to  be  ascertained  and  recorded,  5 

except  those  relative  to  the  person  by  whom  the  marriage  is  to  be  solem-  6 

nized.    Such  certificate  shall  be  delivered  to  the  minister  or  magistrate  7 

before  whom  the  marriage  is  to  be  contracted,  before  he  proceeds  to  8 

solemnize  the  same.    If  such  certificate  is  not  used,  it  shall  be  returned  9 

to  the  office  issuing  it  within  six  months  after  it  is  issued.  10 


Five  days' 
notice  not  re- 
quired of  im- 
migrants. 
1911,  736,  §  6. 


Section  29.     If  either  of  the  parties  to  an  intended  marriage  has  1 

arrived  as  an  immigrant  from  a  foreign  country  within  five  days,  the  2 

notice  of  intention  may  be  filed  at  any  time  before  the  marriage,  and  3 

the  certificate  required  by  the  preceding  section  shall  be  issued  at  any  4 

time  after  the  filing  of  such  intention.  5 


Five  days* 
notice,  how  dis- 
pensed with. 

1911,  736,  5  4. 

1912.  463,  I  2. 


Section  30.  Upon  application  by  both  of  the  parties  to  an  intended  1 
marriage,  when  both  parties  are  residents  of  the  commonwealth  or  both  2 
parties  are  non-residents,  or  upon  application  of  the  party  residing  3 
within  the  commonwealth  when  one  of  the  parties  is  a  resident  and  the  4 
other  a  non-resident,  a  judge  of  probate  or  a  justice  of  a  district  court  5 
may,  after  hearing  such  evidence  as  is  presented,  grant  a  certificate  6 
stating  that  in  his  opinion  it  is  expedient  that  the  intended  marriage  be  7 
solemnized  without  delay.  Upon  presentation  of  such  a  certificate,  or,  8 
in  extraordinary  or  emergency  cases  when  the  death  of  either  party  is  9 
imminent,  upon  the  authoritative  request  of  a  minister,  clergyman,  10 
priest,  rabbi  or  attending  physician,  the  clerk  or  registrar  of  the  town  11 
where  the  notice  of  intention  has  been  filed  shall  at  once  issue  the  12 
certificate  prescribed  in  section  twenty-eight.  13 


Chap.  207.]  marriage.  2237 

1  Section  31.     No  alteration  or  erasure  shall  be  made  by  any  person  Alteration  of 

2  on  the  certificate  under  section  twenty-eight  until  it  has  been  returned  fntelftmnV/o- 

3  to  the  clerk  or  registrar,  and  then  only  in  such  form  and  to  such  extent  J89'7r424  §  i 

4  as  he  may  prescribe.    Any  such  certificate  may  be  recorded  after  cor-  ^  ^-  ^^^-  5  24. 

5  rection  in  accordance  herewith. 

1  Section  32.     The  clerk  or  registrar  shall  not  issue  a  certificate  under  aerk  or 

2  section  twenty-eight,  if  either  of  the  parties  has  been  previously  married  to^^^'u^cenifi- 

3  and  divorced,  unless  the  certificate  or  certified  copy  described  in  section  faef^^eiaSvl 

4  twenty-one  or  the  certificate  described  in  section  twenty-two  is  filed  Jg^'o'^aj'' « 3 

5  with  the  notice  of  intention  of  marriage,  and  in  such  cases,  if  he  issues 

6  the  certificate  of  entry  of  notice  of  intention,  he  shall  attach  thereto 

7  such  certified  copy  or  certificate,  which  shall  be  a  part  thereof. 

1  Section  33.     The  clerk  or  registrar  shall  not  issue  the  certificate  Certificate  not 

2  under  section  twenty-eight  before  the  time  therein  specified,  except  as  wruin  mmore. 

3  otherwise  provided;  nor  to  a  male  under  twenty-one,  or  to  a  female  cfH.'fol.'fg' 

4  under  eighteen,  when  he  has  reasonable  cause  to  believe  the  person  to  S  ?  "*;  i'^i 

5  be  under  such  age,  except  upon  the  apphcation  or  consent  m  writing  of  isii,  736,  §3. 

6  the  parent  or  guardian  of  such  person  or  by  order  of  the  probate  court  Penalty  for 

7  under  section  twenty-five.     If  there  is  no  parent  or  guardian  in  this  o"cmi£cate,*' 

8  commonwealth  competent  to  act,  a  certificate  may  be  issued  without  ^  ^^' 

9  such  application  or  consent. 

1  Section  34.     If  it  is  necessary  to  give  notice  in  two  towns  of  the  Duplicate 

2  intention  of  marriage  of  a  minor,  the  clerk  or  registrar  who  first  takes  0°  mTention'o? 

3  the  consent  of  the  parent  or  guardian  shall  take  it  in  duplicate,  retaining  Js^J'^og'^?  4 

4  one  copy  and  delivering  the  other  duly  attested  by  him  to  the  person  R-  ^-  i^i,  §  26. 

5  obtaining  the  certificate,  to  be  given  to  the  clerk  or  registrar  issuing  Penalty.  §  si. 

6  the  second  certificate;    and  no  fee  shall  be  charged  for  such  consent 

7  or  copy. 

1  Section  35.     The  clerk  or  registrar  may  refuse  to  issue  a  certificate  Refusal  of  cer- 

2  if  he  has  reasonable  cause  to  believe  that  any  of  the  statements  con-  i's^94,*4b9!'§'2. 

3  tained  in  the  notice  of  intention  of  marriage  are  incorrect;   but  he  may,  ^-  ^-  ^^^-  ^  -*• 

4  in  his  discretion,  accept  depositions  under  oath,  made  before  him,  which  renaity  for 

1      II     1  rr*    •  p       p      1         p  1  ■  1  I        •  false  statement, 

5  shall  be  sumcient  prooi  01  the  tacts  therein  stated  to  authorize  the  §  52. 

6  issuing  of  a  certificate.     He  may  also  dispense  with  the  statement  of  any 

7  facts  required  by  law  to  be  given  in  a  notice  of  intention  of  marriage, 
S  if  they  do  not  relate  to  or  affect  the  identification  or  age  of  the  parties, 
9  or  a  former  marriage  of  either  party,  if  he  is  satisfied  that  the  same 

10  cannot  with  reasonable  effort  be  obtained. 

1  Section  36.     If  a  marriage  is  solemnized  in  another  state  between  citizens  mar- 

2  parties  living  in  this  commonwealth,  who  return  to  dwell  here,  they  commonwealth 

3  shall,  within  seven  days  after  their  return,  file  with  the  clerk  or  registrar  'Ste'here"^ 

4  of  the  town  where  either  of  them  lived  at  the  time  of  their  marriage  a  cf^s'io6'|?2 

5  certificate  or  declaration  of  their  marriage,  including  the  facts  required  S-f  "''•^^29 

6  in  a  notice  of  intention  of  marriage.  Penalty.  §  55. 


1  Section  37.     The  state  secretary  shall  furnish  to  the  clerk  or  registrar  List  of  impcdi- 

2  of  every  town  a  printed  list  of  all  legal  impediments  to  marriage,  and  nfge'^to'b"" 

3  the  clerk  or  registrar  shall  forthwith  post  and  thereafter  maintain  it  in  a  {|rderk  or°*°*' 

4  conspicuous  place  in  his  office.  1913,  752,  5  1.  Penalty.  §52.  reglBtrar. 


2238 


JL\^RRIAGE. 


[Cdap.  207. 


Solemnization 
of  marriage. 
C.  L.  102,  §  5. 
1692-3,  25,  §  1- 
1695-6,  2,  §  4. 
1716-17, 
IB,  §  1. 
1762-3,  28. 
1772-3,  31, 

5S  1.  2. 

1786,  3,  §§  1. 

2  8 

1817,  141. 

1820,  55. 

1834,  177, 

§§  1,6. 

R.  S.  75,  §§  16, 

22 

1850,  121,  §  5. 

G.  S.  106, 

§§  14,  15. 

1867,  58,  §  2. 

P.  S.  145,  §§22, 

23 

1893,  461,  §  1. 

1894,  409,  §  5. 
1896,  300.  §  4. 
1899,  387,  §  1. 
R.  L.  151,  §  30. 
1  Mass.  240. 

7  Mass.  48. 


SOLEMNIZATION   OF  MARRIAGE. 

Section  38.     A  marriage  may  be  solemnized  in  any  place  within  the  1 

commonwealth  by  a  minister  of  the  gospel,  ordained  according  to  the  2 

usage  of  his  denomination,  who  resides  in  the  commonwealth  and  con-  3 

tinues  to  perform  the  functions  of  his  office;  by  a  rabbi  of  the  Israelitish  4 

faith,  duly  licensed  by  a  congregation  of  said  faith  established  in  the  5 

commonwealth,  who  has  filed  with  the  clerk  or  registrar  of  the  town  6 

where  he  resides  a  certificate  of  the  establishment  of  the  synagogue,  7 

the  date  of  his  appointment  thereto  and  of  the  term  of  his  engagement;  8 

by  a  justice  of  the  peace  if  he  is  also  clerk  or  assistant  clerk  of  a  town,  9 

or  a  registrar  or  assistant  registrar,  in  the  town  where  he  holds  such  10 

office,  or  if  he  is  also  clerk  or  assistant  clerk  of  a  court,  in  the  city  or  11 

town  where  the  court  is  authorized  to  be  held,  or  if  he  has  been  desig-  12 

nated  as  provided  in  the  following  section  and  has  received  a  certificate  13 

of  designation  and  has  qualified  thereunder,  in  the  town  where  he  re-  14 

sides;    and  it  may  be  solemnized  among  Friends  or  Quakers  according  15 

to  the  usage  of  their  societies;  but  no  person  shall  solemnize  a  marriage  16 

in  the  commonwealth  unless  he  can  read  and  write  the  English  language.  17 

1  Pick.  235.  127  Mass.  459.  163  Mass.  453.  1  Op.  A.  G,  445. 


J^Sira9^o°tije'       Section  39.     The  governor  may  in  his  discretion  designate  a  justice 
peace  to  solera-  ^f  ^he  peace  in  each  town  and  such  further  number,  not  exceeding 

nize  marriage.  ^  n  ^  I'll'  e'  i 

1899,387,         one  for  every  five  thousand  inhabitants  of  a  city  or  town,  as  he  con- 

R.  L.  151,  §  31.  siders  expedient,  to  solemnize  marriages,  and  may  for  cause  at  any  time 

revoke  such  designation.     The  state  secretary,  upon  payment  of  five 

dollars  to  him  by  a  justice  of  the  peace  so  designated,  shall  issue  to  him 

a  certificate  of  such  designation. 


Persons  solem- 
nizing mar- 
riages to  keep 
records  and 
make  returns. 
C.  L.  130.  §  2. 
1692-3.  25,  §  3. 
1695-6,  2, 
§§4,6. 
1716-17, 
16.  §  3. 

1786.  3,  §§  6,  8. 
1795,  7. 
1817,61. 
1834,  177. 
§§  5,6. 

R.  S.  75,  §§  17, 
23 

1844,  159,  §  3. 
G.  S.  106,  §  16. 
1879,  116,  §  1. 
1881,  11,  §  1. 
P.  S.  145,  §  24. 
1887,  202.  §  3. 
1892,  300. 
1897,  424,  §  5. 
R.  L.  151,  §  32. 
201  Mass.  261. 

Penalty,  §  5C. 


Section  40.  Every  justice  of  the  peace,  minister,  rabbi  and  clerk  or  1 
keeper  of  the  records  of  a  meeting  wherein  marriages  among  Friends  or  2 
Quakers  are  solemnized  shall  make  and  keep  a  record  of  each  marriage  3 
solemnized  by  him,  or  in  such  meeting,  and  of  all  facts  relative  to  the  4 
marriage  required  to  be  recorded  by  section  one  of  chapter  forty-six.  5 
He  shall  also,  between  the  first  and  tenth  days  of  the  month  following  6 
each  marriage  solemnized  by  him,  return  each  certificate  issued  under  7 
section  twenty-eight  to  the  clerk  or  registrar  who  issued  the  same;  and  8 
if  the  marriage  was  solemnized  in  a  town  other  than  the  place  or  places  9 
where  the  parties  to  the  marriage  resided,  return  a  copy  of  the  certifi-  10 
cate,  or  of  either  certificate  if  two  were  issued,  to  the  clerk  or  registrar  11 
of  the  town  where  the  marriage  was  solemnized.  Each  certificate  and  12 
copy  so  returned  shall  contain  a  statement  giving  the  place  and  date  of  13 
marriage,  attested  by  the  signature  of  the  person  who  solemnized  the  14 
same  or  of  said  clerk  or  keeper  of  the  records  of  a  Friends  or  Quaker  15 
meeting.  The  person  who  solemnized  the  marriage  shall  add  the  title  16 
of  the  office  by  virtue  of  which  the  marriage  was  solemnized,  as  "jus-  17 
tice  of  the  peace",  "minister  of  the  gospel",  "clergyman",  "priest"  or  18 
"rabbi",  and  his  residence.  AH  certificates  or  copies  so  returned  shall  19 
be  recorded  by  the  clerk  or  registrar  receiving  them.  20 


frnplTieoTcel-        SECTION  41.     If  a  Certificate  of  marriage  is  found,  upon  its  return  to 
nmm*r\"'        ^'^^  clcrk  Or  registrar,  to  have  been  incorrectly  filled  out  by  the  person 


Chap.  207.]  marriage.  2239 

3  who  solemnized  a  marriage  under  it,  the  clerk  or  registrar  shall  have  is97, 424.  §  2. 

4  it  corrected  and  shall  enforce  the  penalties  provided  by  law  relative  ^'  ^'  '*''  ^  ^^' 

5  thereto.     Such  imperfect  certificates  shall  be  recorded  and  indexed  by 

6  the  clerk  or  registrar. 

1  Section  42.     A  marriage  solemnized  by  a  person  professing  to  be  a  Marriages 

2  justice  of  the  peace  having  authority  to  solemnize  marriages,  a  minister  ii-reguLrly^ 

3  of  the  gospel  or  a  rabbi,  or  solemnized  among  Friends  or  Quakers  ac-  \°i™,1'j^^  7. 

4  cording  to  their  usages,  shall  not  be  void,  nor  shall  the  validity  thereof  g  g  lobS^tb 

5  be  in  any  way  affected  by  want  of  authority  in  such  person  or  society,  p-^siV-\^27 

6  or  by  an  omission  or  by  informality  in  the  manner  of  filing  the  notice  ism,  4fii,  §  2.' 

7  of  intention,  if  the  marriage  is  in  other  respects  lawful  and  is  consum-  no  Mass.' 314.' 

8  mated  with  a  full  belief  of  either  of  the  persons  so  married  that  they  144  mIH'.  tlf. 

9  have  been  lawfully  married.  155  Mass  534. 

1  Section  43.     Marriages  solemnized  in  a  foreign  country  by  a  con-  Marriage  by 

2  sul  or  diplomatic  agent  of  the  United  States  shall  be  valid  in  this  al^ioe,"!  23. 

3  commonwealth.  p.  s.  145,  §  28.  r.  l.  isi,  §  35.  5  Alien.  257. 

1  Section  44.     A  city  by  ordinance  and  a  town  by  vote  may  authorize  Fees  by  cities 

2  its  clerk  or  registrar  to  pay  on  demand,  in  his  office,  twenty-five  cents  pcrsonrsoiem- 

3  to  any  person  who  has  legally  solemnized  a  marriage  in  the  common-  ?iages.™" 

4  wealth,  after  the  receipt  by  such  clerk  or  registrar  of  the  certificate  r^liII' lie 

5  in  legal  form  of  the  solemnization  of  such  marriage.     A  city  or  town 

6  which  passes  such  ordinance  or  vote  shall  annually  appropriate  the 

7  money  necessary  therefor,  and  the  clerk  or  registrar  thereof  shall  file 

8  quarterly  with  the  treasurer  or  other  proper  financial  officer  of  said 

9  city  or  town  proper  vouchers  for  all  such  payments. 

evidence  of  marriage. 

1  Section  45.     The  record  of  a  marriage  made  and  kept  as  provided  R^g'^ys  j  25 

2  by  law  by  the  person  by  whom  the  marriage  was  solemnized,  or  by  the  pli^gllg'' 

3  clerk  or  registrar,  or  a  copy  thereof  duly  certified,  shall  be  prima  facie  R-  l-  isi,  5  37. 

4  evidence  of  such  marriage. 

10  Allen.  161.  133  Mass.  242.  156  Mass.  226.  229  Mass.  435. 

1  Section  46.     A  copy  of  the  record  of  a  marriage  solemnized  by  a  Certificate. 

2  consul  or  diplomatic  agent  of  the  United  States  or  a  certificate  from  etc"  °  ™°™ ' 

3  such  consul  or  agent  shall  be  prima  facie  evidence  of  such  marriage.  p  |;  JJf;  |  |o. 

R.  L.  151,  §  38.  229  Mass.  435. 

1  Section  47.     Marriage  may  be  proved  by  evidence  of  an  admission  Admissions  and 

2  thereof  by  an  adverse  party,  by  evidence  of  general  repute  or  of  co-  ft™^"^"  '^''^^''^ 

3  habitation  of  the  parties  as  married  persons,  or  of  any  other  fact  from  }|l?;2o! 

4  which  it  may  be  inferred. 

G.  S.  lOR.  §  22.  3  Pick.  293.  10  Allen,  196.  120  Mass.  387. 

P.  S.  145.  §  31.  14  Gray,  411.  99  Mass.  444.  l.W  Mass.  226. 

R.  L.  151,  §  39.  5  Allen,  257.  110  Mass.  314.  163  Mass.  453. 

penalties. 

1  Section  48.     Whoever,  not  being  duly  authorized  by  the  laws  of  f(fi°^n^ji^ 

2  the   commonwealth,    undertakes   to   join   persons   in   marriage   therein  """."'^fho^it'*" 

3  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  nse,  3^5  5. 

4  imprisonment  for  not  more  than  one  year,  or  both.  R.  s.  75.  §  20. 

G.  S.  106,  i  19.  p.  S.  145,  §  26.  1896,  306,  §  2.  R.  L.  151,  §  40. 


2240 


M.4.RRLVGE. 


[Cbl^p.  207. 


Penalty  for 
joining  persons 
in  marriage 
without  certifi- 
cate. 

1695-6,  2.  §  4. 
1772-3.  31.  §  3. 
17S6.  3,  §  5. 
1S34.  177, 
l§4,9. 


Section  49.     Whoever,   being   duly   authorized   to   solemnize   mar-  1 

riages  in  the  commonwealth,  joins  in  marriage  persons  who  have  not  2 

complied  with  the  laws  relative  to  procuring  certificates  of  notice  of  3 

intention  of  marriage  shall  be  punished  by  a  fine  of  not  more  than  4 

five  hundred  dollars.  R.  s.  75, 1 19.  g.  s.  loe,  §  is.  F> 

1867,  58,  f  3.  p.  S.  145,  §  25.  1896,  306,  §  1.  R.  L.  151,  |  41. 


^owiSg/v'is-         Section  50.     Any  official  issuing  a  certificate  of  notice  of  intention 
Buing  certificate  of  marriage  knowing  that  the  parties  are  prohibited  by  section  eleven 

or  periornung  ,         ^  ,        ^  ^  i-i  i- 

marriage  in  from  intermarrying,  and  any  person  authorized  to  solemnize  marriage 
who  shall  solemnize  a  marriage  knowing  that  the  parties  are  so  pro- 
hibited, shall  be  punished  by  a  fine  of  not  less  than  one  hundred  or 
more  than  five  hundred  dollars  or  by  imprisonment  for  not  more  than 
one  year,  or  both. 


evasion  of  laws 

of  another 

state. 

1913,  360,  5  4. 


^oMionof           Section  51.     Violations  of  any  provision  of  section  seven,  twenty-  1 

certain  pro-  gjij  or  thlrty-four,  shall,  upon  complaint  made  within  one  year  there-  2 

Visions  or  tDi3  v  '  '        sr  i.  »/ 

chapter.  after,  bc  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  3 

1894,  409.  §  8.  ,  , 

R.  L.  151,  §  43.  imprisonment  for  not  more  than  one  year,  or  both.  4 

^Xtio/of           Section  52.     Whoever  violates  any  provision  of  section  twenty  or  1 

law  relative  to  of  sectiou  thirty-scveu,  and  whoever  falsely  swears  or  affirms  in  making  2 

making  out                                                 ''           .       '                                .                   •'             i      n   i                  •   i       i   i         n  « 

notice  of  in-  any  Statement  required  under  section  twenty,  shall  be  punished  by  line  3 

false  statement  or  imprisonment  at  the  discretion  of  the  court.  4 

"'"^'°'  1857.  34.  P.  S  145.  §  20.  R.  L.  151.  §§  43,  44. 

G.  S.  106,  §  11.  1894,  409,  §  8.  1913,  752,  §  3. 


rmng'c^./t'ificate  SECTION  53.  A  clcrk  or  registrar  issuing  a  certificate  of  intention  of  1 
°ersoSunde'r°  marriage  contrary  to  section  thirtv-three  shall  forfeit  not  more  than  2 
age-  one  hundred  dollars.  is53, 335, 1 1.  g.  s.  loe,  §  9.  3 


p.  S.  145,  §  IS. 


R.  L.  151,  5  25. 


1911.  736,  §  3. 


k^af  aftem'^tion       SECTION  54.     Whocvcr   makcs   an   illegal   alteration   or   erasure   on     1 
of  certificate  of  a  Certificate  of  intention  of  marriage  shall  be  punished  by  a  fine  of  not     2 
more  than  one  hundred  dollars.  R.  l.  151,  §  42.  3 


intention. 
1897,  424,  S  1 


Penalty  for 
failure  of  citi- 
zens married 
outside  com- 
monwealth to 
file  certificate. 


Section  55.     ^Vhoeve^   violates   section   thirty-six   shall   forfeit  ten     1 
dollars.  2 

1850,  121,  §  3.  G.  S.  106,  §  12.  p.  S.  145,  }  21.  R.  L.  151,  J  29. 


Penalty  for 
failure  to  make 
records  and 
returns  of 
marriages. 


Section  56.  Whoever  neglects  to  make  the  record  and  returns  1 
required  by  section  forty  shall  forfeit  not  less  than  twenty  nor  more  2 
than  one  hundred  dollars.  i834, 177,  §§  5. 6.  r.  s.  75,  j§  is.  23.  3 


1844.  159,  §  3. 
G.  S.  106,  §  17. 


1879,  116,  §  2. 
P.  S.  145,  §  24. 


1892.  300, 

R.  L.  151,  §  32. 


Penalty  for 
failure  to  return 
certificate  of 
intention  of 
marriage. 
1914,  428,  5  2. 


Section  57.     Whoever  performs  a   ceremony   of  marriage  upon  a  1 

certificate  more  than  six  months  after  its  issue,  and  whoever  having  2 

taken  out  such  certificate  and  not  having  used  it  fails  to  return  it,  within  3 

six  months  after  its  issue,  to  the  office  issuing  the  same,  shall  be  punished  4 

by  a  fine  of  not  more  than  ten  dollars.  5 


CIL4.P.  208.] 


DIVORCE. 


2241 


1  Section  58.     Whoever  advertises  in  a  newspaper  circulated  in  the  Penalty  for 

2  commonwealth,  or  by  any  other  means,  to  perform  or  to  procure  the  perform  mar- 

3  performance  of  the  marriage  ceremony,  shall  be  punished  by  a  fine  of  i'gol,?/™™^' 

4  not  less  than  ten  nor  more  than  one  hundred  dollars. 

REFERENCE. 

§§  20,  28.     Facts  required  by  law  to  be  ascertained  and  recorded,  and  therefore 
stated  in  the  notice  of  intention  of  marriage.  Chap.  46,  §  1. 


CHAPTER    208 

DIVORCE. 


Sect. 

CAUSES    FOR    DrPORCE. 

1.  Causes  for  divorce. 

2.  Same  subject. 

3.  Divorce   after  absence   raising   a   pre- 

sumption of  death. 

4.  Divorce  only  if  parties  have  lived  to- 

gether in  commonwealth. 

5.  Exception. 

LIBELS   FOR   DIVORCE. 

6.  Venue  of  libel. 

7.  Libel  to  be  signed. 

8.  Notice  to  libellee. 

9.  Co-respondent  may  contest. 

10.  Co-respondent  not  to  be  named,  except, 

etc. 

11.  Same  subject. 

12.  Attachment  of  husband's  property. 

13.  Attachment,  how  made. 

14.  Same  subject. 

15.  Guardian  for  insane  libellee.    Compen- 

sation. 

16.  Investigation  of  divorce  case. 

17.  Allowance  and  alimony  during  pend- 

ency of  libel. 

18.  Protection  of  personal  liberty  of  wife 

during  pendency. 

19.  Custody  of  children  during  pendency. 

20.  Continuance    of   libel,  and    orders   for 

temporary  separation,  etc. 

21.  Decrees  of  divorce  to  be  entered  nisi. 

22.  Libel  for  desertion  not  to  be  defeated 

by  temporary  return. 

GENERAL    PROVISIONS. 

23.  Resumption  of  former  .name  by  wife. 

24.  Remarriage  of  divorced  parties. 

25.  Divorce   for   adultery   of   wife   not   to 

affect  legitimacy  of  issue. 


Sect. 

26.  Effect  of  divorce  for  adultery  of  wife 

upon  her  separate  property. 

27.  No  dower  to  wife  after  divorce,  except, 

etc. 

28.  Care  and  maintenance  of  minor  chil- 

dren. 

29.  Same   when   divorce   obtained   out   of 

commonwealth. 

30.  Children  not  to  be  removed  from  com- 

monwealth. 

31.  Custody  of  children. 

32.  Writ  of  habeas  corpus  to  bring  child 

before  court. 

33.  Procedure  under  this  chapter. 

34.  Alimony. 

35.  Enforcement  of  alimony,  etc. 

36.  Security  for  same. 

37.  Revision  of  decree  for  same. 

38.  Costs. 

39.  Validity  of  foreign  divorces. 


CRIMINAL    PROVISIONS. 

40.  Cohabitation     after     divorce     to     bo 

adultery. 

41.  Penalty  for  personation,  etc.,  in  divorce 

suits. 

42.  Penalty  for  procuring  unlawful  divorce. 

43.  Penalty    for    advertising    to    procure 

divorces. 

44.  Penalty  for  unlawfully  issuing  certifi- 

cates of  divorce. 

45.  Notice  to  district  attorney  of  criminal 

offences. 

STATISTICS   OF    DIVORCE. 

46.  Returns  of  statistics  of  divorce. 

47.  Publication  of  abstracts  of  returns. 


CAUSES   FOR   DIVORCE. 

1  Section  1.     A  divorce  from  the  bond  of  matrimony  may  be  decreed  ^^"^f/g'"' 

2  for  adultery,  impotency,  utter  desertion  continued  for  three  consecu-  nss,  69^§  3. 

3  tive  years  next  prior  to  the  filing  of  the  libel,  gross  and  confirmed  habits  r.  s.'ye,  §§  s,  6. 


2242 


Dn^ORCE. 


[CH.VP.  208. 


1838.  126. 
1S57,  228, 
G.  S.  107. 
§§  6.  7,  9. 
1870,  404, 
187.3,  371. 
I§  2,  6. 
P.  S.  146, 


5  1. 

§2. 


§1. 


of  intoxication  caused  by  the  voluntary  and  excessive  use  of  intoxicating  4 

liquor,  opium  or  other  drugs,  cruel  and  abusi\'e  treatment  or,  on  the  5 

libel  of  the  wife,  if  the  husband,  being  of  sufBcient  ability,  grossly  or  6 

wantonly  and  cruelly  refuses  or  neglects  to  provide  suitable  maintenance  7 

for  her.  8 


1889,  447. 

R.  L,  152,  §  1. 

1  Mass.  240,  346. 

2  Mass.  150,  154. 

4  Mass.  5S6,  587. 

5  Mass.  320. 
7  Mass.  474. 
11  Pick.  461. 
21  Pick.  509. 
2  Cush.  551. 

7  Gray.  279. 

8  Allen.  418. 

97  Mass.  327 

98  Mass.  155. 

99  Mass.  39,  493. 


,373. 


100  Mass. 

101  Mass. 
103  Mass. 
lot  Mass. 

111  Mass. 

112  Mass. 

113  Mass. 
117  Mass. 
126  Mass. 

140  Mass 

141  Mass, 

142  Mass, 

143  Mass, 
150  Mass 
154  Mass, 


150. 
111. 
577. 
195, 
327. 
298. 
314. 
202. 
205. 
528. 
495. 
361. 
577. 
111. 
515. 


198. 


157  Mass.  503. 

159  Mass.  281. 

160  Mass.  216,  258. 
168  Mass.  50.  201,  456. 
171  Mass.  146. 

175  Mass.  7. 

190  Mass.  349. 

191  Mass.  72. 

192  Mass.  194. 
210  Mass.  156. 
219  Mass.  107. 
225  Mass.  183. 

229  Mass.  592. 

230  Mass.  59. 
234  Mass.  37,  250. 


Section  2.     A  divorce  may  also  be  decreed  if  either  party  has  been 


Same  subject. 
R.  S.  76,  §  5. 

a  a' 107,' I  (?.'  sentenced  to  confinement  at  hard  labor  for  life  or  for  five  years  or  more 

R  L  "5*2 1^'  ^^  ^^^®  state  prison,  a  jail,  house  of  correction  or  reformatory  for  women; 

1-1  m''^*'  irf  ^^^'  ^^^^^  *  divorce  for  such  cause,  no  pardon  granted  to  the  party  so 

169  Mass!  592:  sentenced  shall  restore  such  party  to  his  or  her  conjugal  rights. 

216  Mass.  594. 


S>se°nclmismg       SECTION  3.    A  divorcc  may  be  decreed  for  any  of  the  causes  allowed 

of'^del'th''''""  ^y  *^^  ^^^  preceding  sections  although  the  libellee  has  been  continuously 

1884, 219.  absent  for  such  time  and  under  such  circumstances  as  would  raise  a  pre- 

K.  L.  152,  §  3.  ,  „    .  ,  ^ 

113  Mass.  314.  sumption  01  death.  147  Mass.  294. 


Dirorce  only 
if  parties  have 
lived  together 
in  common- 
wealth. 
R.  S.  76, 
§§  9-11. 
G.  S.  107,  §  12. 
P.  S.  146,  §  4. 
R.  L.  152,  §  4. 
98  Mass.  158. 


Section  4.    A  divorce  shall  not,  except  as  pro-vided  in  the  following  1 

section,  be  decreed  if  the  parties  have  never  lived  together  as  husband  2 

and  ■U'ife  in  this  commonwealth;    nor  for  a  cause  which  occurred  in  3 

another  jurisdiction,  unless  before  such  cause  occurred  the  parties  had  4 

lived  together  as  husband  and  wife  in  this  commonwealth,  and  one  of  5 

them  lived  in  tliis  commonwealth  at  the  time  when  the  cause  occurred.  6 


103  Mass.  574,  575. 
115  Mass.  438. 
135  Mass.  83. 


143  Mass.  274. 
191  Mass.  12,S. 
205  Mass.  388. 


210  Mass.  156. 
230  Mass.  59. 
236  Mass.  256. 


Exception. 
1843,  77. 
G.  S.  107,  §  11. 
1877,  174. 
P.  S.  146,  §  5. 
R.  L.  152,  §  5. 
6  Gray,  157. 
135  M.ass.  83. 
154  Mass.  515. 
161  Mass.  508. 
188  Mass.  550. 

190  Mass.  349. 

191  Mass.  12.S. 
210  Mass.  319. 
225  Mass.  82. 


Section  5.    If  the  libellant  has  lived  in  this  commonwealth  for  five  1 

years  last  preceding  the  filing  of  the  libel,  or  if  both  parties  were  inhabit-  2 

ants  of  tliis  commonwealth  at  the  time  of  their  marriage  and  the  libellant  3 

has  lived  in  this  commonwealth  for  three  years  last  preceding  such  .filing,  4 

a  divorce  may  be  decreed  for  any  cause  allowed  by  law,  whether  it  occurred  5 

in  tills  commonwealth  or  elsewhere,  unless  it  appears  that  the  libellant  6 

has  removed  into  this  commonwealth  for  the  purpose  of  obtaining  a  7 

divorce.  230  Mass.  59.  236  ILass.  250.  S 


I 

Venue  of  li 
1692-3.  25, 
1783,  69,  § 
1820,  14,  I 
R.  S.  76, 
§§7,8. 
1851,  82,  I 
G.  S.  107, 
§§  13.  14. 


bel. 
5  4. 
7. 
10. 


LIBELS  FOR  DIVORCE. 

Section  6.  Libels  for  divorce  shall  be  filed,  heard  and  determined 
in  the  superior  court  held  for  the  county  where  one  of  the  parties  lives, 
except  that,  if  the  libellant  has  left  the  county  where  the  parties  lived 
together  and  the  libellee  still  lives  therein,  the  libel  shall  be  heard  and 
determined  in  the  court  held  for  that  county. 

P.  S.  146,  I  6.  Ill  Mass.  158.  191  Mass.  128. 

1887.  332.  5  1.  135  Mass.  83.  210  Mass.  I,i6. 

R.  L.  152,  5  6.  150  Mass.  280.  223  Mass.  451. 


Chap.  208.]  divorce.  2243 

1  Section  7.     The  libel  shall  be  signed  by  the  libellant,  if  of  sound  mind  ll^^l^°  ^^ 

2  and  of  legal  age  to  consent  to  marriage;  otherwise,  it  may  be  signed  by  g  |  JpV^.^jg 

3  the  guardian  of  the  libellant  or  by  a  person  admitted  by  the  court  to  p.'s.ue.'i  7. 

4  prosecute  the  libel  as  his  next  friend.  R.  l.  152,  §  7. 

7  Mass.  96.  1  Met.  3S2.  8  Allen,  311.  139  Mass.  377. 

1  Section  8.     The  court  or  clerk  may  order  the  libellee  to  be  summoned  JJ^'eiw*'' 

2  to  appear  and  answer  at  the  court  having  jurisdiction  of  the  cause,  by  i^^ss,  eg,  §  s. 

3  the  publication  of  the  libel  or  of  the  substance  thereof,  with  the  order  s§  'i5-i7. 

4  thereon,  in  one  or  more  newspapers  to  be  designated  in  the  order,  or  by  s§  h),  20.' 

5  delivering  to  the  libellee  an  attested  copy  of  the  libel  and  a  summons,  or  isos!  109,  §  1. 

6  in  such  other  manner  as  it  or  he  may  require.    If  such  order  is  made  by  ^'j  |  \l^- 

7  the  clerk,  the  court  may  order  an  additional  notice.    If  the  libellee  does  J|[J°'  |™; 

8  not  appear  and  the  court  considers  the  notice  defective  or  insufficient,  P^  ^  152,  §8 

^^       I        !■        1  •  12^  Mass.  191. 

9  it  may  order  further  notice.  i4i  Mass.  432.  223  Mass.  451. 

1  Section  9.     A  person  named  as  co-respondent  in  an  amended  libel,  may^contrar' 

2  cross  libel  or  answer  may  appear  and  contest  the  charge  of  adultery  Jlgg'^y 

3  therein  made  against  him.  e.  l.  152.  §  9. 

1  Section  10.     In  a  libel  for  divorce,  wherein  the  commission-of  adultery  Co-respondent 

2  by  either  party  is  alleged  as  ground  for  the  divorce  or  as  the  ground  for  SamedXcept, 

3  contesting  the  divorce,  no  libel,  cross  libel  or  answer  at  the  time  of  filing  f^^^^  j2i,  §  1. 

4  shall  name  any  person  as  co-respondent.    The  party  alleging  such  adul- 

5  tery  may  by  motion,  after  the  libel  has  been  entered,  upon  an  ex  parte 

6  hearing  before  a  justice  of  the  superior  court,  obtain  permission  to  amend 

7  his  libel,  cross  libel  or  answer  by  inserting  the  name  of  the  co-respondent 

8  if  the  justice  finds  probable  cause  has  been  shown  that  such  accused 

9  person  has  committed  adultery  as  alleged,  and  thereupon  notice  shall 
10  be  sent  to  said  co-respondent  and  to  the  other  party  to  the  libel. 

1  Section  11.     The  e\adence  produced  at  such  ex  parte  hearing  shall  fgn^  i2i,'T2. 

2  not  be  reported  or  made  a  part  of  the  record  in  the  case  and  the  motion  i9i9.  i^*- 

3  for  said  amendment  shall  not  be  read  to  the  court  during  the  divorce  pro- 

4  ceedings,  but  the  clerk  of  the  court  shall  make  an  entry  in  the  docket  of 

5  "Motion  to  insert  name  of  co-respondent  allowed",  or  "Motion  to  in- 

6  sert  name  of  co-respondent  denied",  as  the  case  may  be.    If  the  amend- 

7  ment  is  allowed  upon  affidavits,  they  shall  be  retained  by  the  court  and 

8  placed  in  the  custody  of  the  clerk  of  the  court  for  the  county  where  the 

9  divorce  proceedings  are  brought,  and  shall  be  open  for  the  purposes  of 

10  inspection,  and  taking  copies  thereof,  to  counsel  of  record,  or  the  libellee 

1 1  or  any  co-respondent  named  in  the  amended  libel. 

1  Section  12.    Upon  a  libel  by  a  wife  for  divorce  for  a  cause  accruing  Attachment  ot 

2  after  marriage,  the  real  and  personal  property  of  the  husband  may  be  properly.^ 

3  attached  to  secure  suitable  support  and  maintenance  to  her  and  to  such  q  f  ■  igj;  |  g^ 

4  children  as  may  be  committed  to  her  care  and  custody.  i*'*'*'  ^*^'  ^  -■ 

p.  S.  146,  §  11.  107  Mass.  428.  186  Mass.  420. 

R.  L.  152,  i  10.  150  Mass.  92.  196  Mass.  509. 

1  Section  13.    The  attachment   may   be  made   upon   the   summons  Attachment. 

2  issued  upon  the  libel,  in  the  same  manner  as  attachments  are  made  ism,  137, '§§2. 

3  upon  writs  in  actions  at  law,  for  an  amount  which  shall  be  expressed  in  g.  s.  107,  §  51. 


2244 


DIVORCE. 


[Chap.  208. 


1866,  148,  §  3. 
P.  S.  146,  §  12. 
R.  L.  152,  §  11. 
196  Mass.  509. 


the  summons  or  order  of  notice.    The  attachment  may  be  made  by  trustee 
process,  in  which  case  there  shall  be  inserted  in  the  summons  or  order 


4 
5 
6 
7 
8 
9 
10 
11 


of  notice  a  direction  to  attach  the  goods,  eiTects  and  credits  of  the  libellee 
in  the  hands  of  the  alleged  trustee,  and  service  shall  be  made  upon  the 
trustee  by  copy.  If  attachment  is  made  by  trustee  process,  the  libel 
shall  be  filed  as  provided  in  section  six  notwithstanding  the  provisions 
of  section  two  of  chapter  two  hundred  and  forty-six.  The  court  may  in 
such  cases  make  all  necessary  orders  to  secure  to  the  trustee  his  costs. 
The  attachment  may  be  made  by  injunction,  as  in  suits  in  equity,  to  12 
reach  shares  of  stock  or  other  property  which  cannot  be  reached  to  be  13 
attached  as  in  an  action  at  law,  and  the  property  so  attached  may  there-  14 
after,  by  appropriate  order,  be  applied  to  the  satisfaction  of  any  order  15 
or  decree  for  the  payment  of  money  by  the  husband  to  the  wife  for  her  16 
support  or  that  of  the  children.  17 


i855!i3A§''4  Section  14.  The  laws  relative  to  attachments  of  real  or  personal  1 
p'lue'lfl'  property  shall  apply  to  attachments  herein  provided  for,  so  far  as  they  2 
R.  L.  152,  §  12.  are  consistent  with  the  two  preceding  sections.  i96  Mass.  509.  3 


Guardian  for 
insane  libellee. 
Compensation. 
R.  S.  76,  §  18. 
G.  S.  107,  §  21. 
P.  S.  146,  5  14. 
R.  L.  152,  §  13. 
1902,  644,  §  21. 
1914.  385. 
13  Gray,  264. 
114  Mass.  379. 


Section  15.     If  during  the  pendency  of  a  libel  the  libellee  is  insane,  1 

the  court  shall  appoint  a  suitable  guardian  to  appear  and  answer  in  like  2 

manner  as  a  guardian  for  an  infant  defendant  in  an  action  at  law  may  be  3 

appointed.    The  compensation  of  such  guardian  shall  be  determined  by  4 

the  court  and,  together  with  his  necessary  expenses,  shall  be  paid  by  the  5 

libellant  if  the  court  so  orders.  6 


Investigation 
of  divorce  case. 
1907,  390. 


Section  16.  Any  justice  of  the  superior  court  may  appoint  an  at-  1 
torney  to  investigate  and  report  to  the  court  in  relation  to  any  libel  for  2 
divorce  or  to  have  a  marriage  declared  void,  and  may  direct  such  attorney,  3 
or  any  other  attorney,  to  defend  it.  The  attorney  may  be  appointed  4 
either  before  or  after  a  decree  of  divorce  nisi  has  been  granted,  and  may  5 
enter  objections  to  such  decree  nisi  becoming  absolute  in  the  same  manner  6 
as  the  libellee.  His  compensation  shall  be  fixed  by  the  court,  and  shall  7 
be  paid  by  the  county  where  the  libel  is  pending,  together  with  any  ex-  8 
penses  approved  by  the  court,  upon  certificate  by  a  justice  thereof  to  9 
the  county  treasurer.  The  state  police,  local  police  and  probation  offi-  10 
cers  shall  assist  the  attorney  so  appointed,  upon  his  request.  II 


alimony 'du^fn'^g  SECTION  17.     The  court  may  require  the  husband  to  pay  into  court 

Rbei''''"^^  °'  for  the  use  of  the  wife  during  the  pendency  of  the  libel  an  amount  to 

1855'  65'  ^  ^'  enable  her  to  maintain  or  defend  the  libel,  and  to  pay  to  the  wife  alimony 

137,  '§  6.'  during  the  pendency  of  the  libel.                         g.  s.  107,  §  22. 

p.  S.  146,  §  15.  R.  L.  152,  §  14.  6  Gray,  341.  161  Mass.  111. 


Section  18.     The  court  sitting  in  any  county  may,  upon  petition  of     1 


Protection  of 
personal 

w^te'iuring       ^^®  wifc,  prohibit  the  husband  from  imposing  any  restraint  upon  her    2 
pendency.         pcrsoual  liberty  during  the  pendency  of  the  libel.  3 

R.  S.  76,  §  24.  G.  S.  107,  §  31.  P.  S.  146,  §  10.  R.  L.  152,  §  15. 


1820,  56,  §  1. 


Custody  of 
children  during 
pendency. 
1820,  56,  §  1. 
R.  S.  76,  I  25. 
G.  S.  107,  §  32. 
P.  S.  146,  §  17. 


Section  19.  The  court  may  in  like  manner,  upon  application  of  either 
party,  make  such  order  relative  to  the  care  and  custody  of  the  minor 
children  of  the  parties  during  the  pendency  of  the  libel  as  it  may  consider 
expedient  and  for  the  benefit  of  the  children. 


II.  L.  152,  §  16. 


220  -Mass.  38. 


CiL\p.  208.]  DIVORCE.  2245 

1  Section  20.     The  court  may,  without  entering  a  decree  of  divorce.  Continuance 

2  order  the  hbel  continued  upon  the  docket  from  time  to  time,  and  during  "rders  toT 

3  such  continuance  may  make  orders  and  decrees  relative  to  a  temporary  sepSatfon,  etc. 

4  separation  of  the  parties,  the  separate  maintenance  of  the  wife  and  the  p*s''i^4^6'§S^8 

5  custody  and  support  of  minor  children.    Such  orders  and  decrees  may  ™^j/^,-'  LV- 

6  be  changed  or  annulled  as  the  court  may  determine,  and  shall,  while  220  Mass!  ss!' 

7  they  are  in  force,  supersede  any  order  or  decree  of  the  probate  court  '" 

8  under  section  thirty-two  of  chapter  two  hundred  and  nine  and  may 

9  suspend  the  right  of  said  court  to  act  under  said  section. 

1  Section  21.     Decrees  of  divorce  shall  in  the  first  instance  be  decrees  Decrees  of 

2  nisi,  and  shall  become  absolute  after  the  expiration  of  six  months  from  the  entmd  msi.^ 

3  entry  thereof,  unless  the  court  within  said  period,  for  sufficient  cause,  {^o;  lol'.  1 3. 

4  upon  application  of  any  party  interested,  otherwise  orders.  '*"^'  ^' '•  ^  ^• 

1881,  234,  §  2.  1882,  223.  R.  L.  152,  §  18.  168  Mass.  228. 

P.  S.  146,  §  19.  1893,194:280.  157  Mass.  503.  207  Mass.  254. 

1  Section  22.    A  libel  for  divorce  for  desertion  shall  not  be  defeated  by  Libei  tor 

2  a  temporary  return  or  other  act  of  the  libellee  if  the  court  finds  that  such  to  be  drfeated 

3  return  or  other  act  was  not  made  or  done  in  good  faith,  but  with  intent  to  J^^um'""'^*'^ 

4  defeat  such  libel. 

1855,  137,  §  8.  G.  S.  107.  §  S.  P.  S.  146,  §  20.  R.  L.  152,  §  19. 

GENERAL  PROVISIONS. 

1  Section  23.    The  court  granting  a  divorce  to  a  woman  may  allow  Resumption  of 

2  her  to  resume  her  maiden  name  or  that  of  a  former  husband.  by™?fe°^™^ 

1849.  141.  G.  S.  107,  §  23.  P.  S,  146,  §  21.  R.  L.  152,  §  20. 

1  Section  24.     After  a  decree  of  divorce  has  become  absolute,  either  Remarriage 

2  party  may  marry  again  as  if  the  other  were  dead,  except  that  the  party  part^™.™ 

3  from  whom  the  divorce  was  granted  shall  not  marry  within  two  years  isssillg, 

4  after  the  decree  has  become  absolute.       i855, 137.  §  9;  426.       g.  s.  107,  §  25. 

1S64,  216.  P.  S.  146,  §  22.  113  Mass.  458.  152  Mass.  633. 

1873,  371,  §  4.  R.  L.  162,  §  21.  122  Mass.  3.  191  Mass.  166. 

1881,  234,  §  4.  1  Pick.  506.  126  Mass.  34.  219  Mass.  111. 

1  Section  25.     A  divorce  for  adultery  committed  by  the  wife  shall  not  Divorce  for 

2  affect  the  legitimacy  of  the  issue  of  the  marriage,  but  such  legitimacy,  if  wife  not  to 

3  questioned,  shall  be  tried  and  determined  according  to  the  course  of  the  ma'cy  on'ss'ue. 

4  common  law.  17S5, 69,  §  6.  r.  s.  76,  §  20. 

G.  S.  107,  §  27.  p.  S.  146,  §  23.  R.  L.  152,  §  22.  189  Mass.  64. 

1  Section  26.     Upon  a  divorce  for  adultery  committed  by  the  wife,  Effect  of 

2  her  title  to  her  separate  real  and  personal  property  during  her  life  shall  adultery "f 

3  not  be  affected,  except  that  the  court  may  decree  to  the  husband  so  much  Teplrate"  ^^'^ 

4  of  such  property  as  it  considers  necessary  for  the  support  of  any  minor  is77"i'f8,  §  s. 

5  children  of  the  marriage  decreed  to  the  husband's  custody;   and  if  the  RLYe'llls 

6  wife  afterward  contracts  a  lawful  marriage,  the  interest  of  the  divorced  i^^  iiaas'.  112. 

7  husband  in  the  wife's  separate  real  and  personal  property,  after  her  death, 

8  shall  cease,  except  in  so  much  thereof  as  may  have  been  decreed  to  him 

9  as  herein  provided. 

1  Section  27.    After  a  divorce,  a  wife  shall  not  be  entitled  to  dower  in  nq  dower  to 

2  the  land  of  her  husband,  unless,  after  a  decree  of  divorce  nisi  granted  diVorce.  ^ 

3  upon  the  libei  of  the  wife,  the  husband  dies  before  such  decree  becomes  ms^eg.'ls. 


2246 


DIVORCE. 


[Chap.  208. 


R.  s.  76, 5  32;  absolutc;  but  if  the  divorce  was  for  the  cause  of  adultery  committed  by 
G  s.  107,  §  3S;  the  husbaud  or  because  of  his  sentence  to  confinement  at  hard  labor,  she 
is76,^404.  §  4.    shall  be  entitled  to  her  dower  in  the  same  manner  as  if  he  were  dead. 

p.  S.  146,  §  28;  14  Mass.  219.  110  Mass.  463.  192  Mass.  S. 

174,  §  13.  2  Pick.  316.  128  Mass.  34.  214  Mass.  204. 

R.  L.  152,  §  24.  2  Allen,  45. 


Care  and 
maintenance 
of  minor 
children. 
1820,56,  §  1. 
R.  S.  76,  I  26. 
1853,  23,  §  1. 
G.  S.  107, 
§§  33,  48. 
1873,  371,  §  7. 
P.  S.  146,  I  29. 
R.  L.  152,  §  25. 
1918,  257. 
S400. 
1919,5. 
1920,  2. 
152  Mass.  16. 


Section  28.     Upon  decree  of  divorce,  or  petition  of  either  parent,  or  1 

of  a  next  friend  in  behalf  of  the  children,  after  notice  to  both  par-  2 

ents,  after  such  decree,  the  court  may  make  such  decree  as  it  considers  .3 

expedient  relative  to  the  care,  custody  and  maintenance  of  the  minor  4 

children  of  the  parties,  and  may  determine  with  which  of  the  parents  the  5 

children  or  any  of  them  shall  remain;   and  afterward  may  from  time  to  6 

time,  upon  the  petition  of  either  parent,  or  of  a  next  friend,  re\'ise  and  7 

alter  such  decree  or  make  a  new  decree,  as  the  circumstances  of  the  parents  8 

and  the  benefit  of  the  children  may  require.  9 


196  Mass.  509. 


220  Mass.  38. 


Same  when 
divorce 
obtained  out 
of  common- 
wealth. 
1842,83,  §  1. 
G.  S.  107,  §  34. 
P.  S.  146,  §  30. 
R.  L.  152,  §  20. 
156  Mass.  27. 


Section  29.     If,  after  a  divorce  has  been  decreed  in  another  juris-  1 

diction,  minor  children  of  the  marriage  are  inhabitants  of  this  common-  2 

wealth,  the  superior  court,  upon  petition  of  either  parent  or  of  a  next  3 

friend  in  behalf  of  the  children,  after  notice  to  both  parents,  may  make  4 

like  decrees  relative  to  their  care,  custody,  education  and  maintenance  5 

as  if  the  divorce  had  been  decreed  in  this  commonwealth.  6 


t?be  removed        SECTION  30. "  A  miuor  chlld  of  divorced  parents  who  is  a  native  of  or 

mo?wSth.       li^s  resided  five  years  within  this  commonwealth  and  over  whose  custody 

cf  I'  fo7  V35    ^'^^  maintenance  the  superior  court  has  jurisdiction  shall  not,  if  of  suit- 

R  L^isiVi-  able  age  to  signify  his  consent,  be  removed  out  of  this  commonwealth 

without  such  consent,  or,  if  under  that  age,  without  the  consent  of  both 

parents,  unless  the  court  upon  cause  shown  otherwise  orders.    The  court, 

upon  application  of  any  person  in  behalf  of  such  child,  may  require 

security  and  issue  writs  and  processes  to  effect  the  purposes  of  this  and 

the  two  preceding  sections. 


Custody  of 
children. 
1855.  137,  §  7. 
G.  S.  107.  §  37. 
P.  S.  146,  §  32. 
R.  L.  152,  I  28. 
151  Mass.  349. 
227  Mass.  77. 


Section  31.     In  making  an  order  or  decree  relative  to  the  custody  of  1 

children  pending  a  controversy  between  their  parents,  or  relative  to  their  2 

final  possession,  the  rights  of  the  parents  shall,  in  the  absence  of  mis-  3 

conduct,  be  held  to  be  equal,  and  the  happiness  and  welfare  of  the  children  4 

shall  determine  their  custody  or  possession.  5 


Writ  of  habeas 
corpus  to 
bring  child 
before  court. 
1902,  324. 


Section  32.     Any  court  ha\'ing  jurisdiction  of  libels  for  divorce  or  for  1 

nullity  of  marriage,  of  petitions  for  separate  support  or  maintenance,  or  2 

of  any  other  proceeding  in  wliich  the  care  and  custody  of  any  child  is  3 

draM'n  in  question,  may  issue  a  WTit  of  habeas  corpus  to  bring  before  4 

it  such  child.    The  writ  may  be  made  returnable  forthwith  before  the  5 

court  by  which  it  is  issued,  and,  upon  its  return,  said  court  may  make  6 

any  appropriate  order  or  decree  relative  to  the  child  who  may  thus  be  7 

brought  before  it.  8 


Procedure 
under  this 
chapter. 
17S5,  «U,  5  8. 
1820.  SO,  I  1. 


Section  33.  The  superior  court  may,  if  the  course  of  proceeding  is  1 
not  specially  prescribed,  hear  and  determine  all  matters  coming  ■within  2 
the  pur\'iew  of  this  chapter  according  to  the  course  of  proceedings  in    3 


Chap.  208.]  divorce.  2247 

4  ecclesiastical  courts  or  in  courts  of  equity,  and  may  issue  process  ofol"  Toj-^&^ls 

5  attachment  and  execution  and  all  other  proper  and  necessary  processes.  P-  s.'  i46,'  §  33.' 

1SS7,  332,  §1.  109  Jlass.  306.  186  Mass.  244.  206  Mass.  449. 

R.  L.  152,  §  29.  130  Mass.  57.  196  Mass.  509.  211  Mass.  77. 

107  Mass.  428.  161  Mass.  111.  197  Mass.  112.  230  Mass.  59. 

1  Section  34.    Upon  a  divorce,  or  upon  petition  at  any  time  after  a  AHmony. 

2  divorce,  the  superior  court  may  decree  alimony  to  the  wife,  or  a  part  of  isoti  s?! 

3  her  estate,  in  the  nature  of  alimony,  to  the  husband.  isu,  ii9. 

1829,  55.  1857.  228,  §  3.  R.  L.  152,  §  30.  135  Mass.  393. 

R.  S.  76,  §31.  G.  S.  107,  §§43,  100  Mass.  365.  147  Mass.  159. 

183S.  126,  §  2.  44.48.  107  Mass.  428.  168  Mass.  311. 

1844,  129.  1873,  371,  §  7.  108  Mass.  314.  190  Mass.  573. 

1850,  100,  §  3.  P.  S.  146,  §  36.  120  Mass,  390.  211  Mass.  139. 

1853,  23,  I  1.  1887,  332,  §  1.  128  Mass.  34.  222  Mass.  415. 

1  Section  35.     The  court  may  enforce  decrees  for  allowance,  alimony  Enforcement 

2  or  allowance  in  the  nature  of  alimony,  in  the  same  manner  as  it  may  isss',™?!"^'  **°' 

3  enforce  decrees  in  equity.  g.  s.  io7,  §  43. 

p.  S.  146.  §  37.  100  Mass,  373.  107  Mass.  428.  166  Mass.  226. 

R.  L.  152.  §  31.  105  Mass.  385.  130  Mass.  163,  189.        206  Mass.  449. 

12  Gray,  28.  106  Mass.  499.  134  Mass.  353.  208  Alass.  458. 

1  Section  36.     When  alimony  or  an  annual  allowance  is  decreed  for  Security  for 

2  the  wife  or  children,  the  court  may  require  sufficient  seciu-ity  for  its  is2'o,'36,  §  2. 

3  pajTnent  according  to  the  decree. 

R.  S.  76,  §  35.  G.  S.  107,  §  46.  P.  S.  146.  §  3S.  R.  L.  152,  §  32. 

1  Section  37.     After  a  decree  for  alimony  or  an  annual  allowance  for  Revision  of 

2  the  ■nife  or  children,  the  court  may,  from  time  to  time,  upon  the  petition  xIss^m^YI"^' 

3  of  either  party,  revise  and  alter  its  decree  relati\-e  to  the  amount  of  such  r*"!.' 76,^5  36. 

4  alimony  or  annual  allowance  and  the  pa\'ment  thereof,  and  may  make  ^  ^| •  f^j  *  ^• 

5  anv  decree  relative  thereto  which  it  midit  have  made  in  the  original  Pl^ff-,  ,„ 

°  °  p.  S.  14b,  §  39. 

6  suit. 

R.  L.  152,  §  33,  161  Mass.  111.  190  Mass.  573. 

134  Mass.  353.  168  Mass.  511.  225  Mass.  392. 

1  Section  38.     In  proceedings  under  this  chapter,  the  com-t  may  award  fslof  so,  §  2. 

2  costs  in  its  discretion.  R.  s.  76,  §  37.  is53, 23,  §  2. 

G.  S.  107,  §49.  P.  S.  146,  §40.  R.  L.  152,  §  34.  161  Mass.  lU. 

1  Section  39.     A  divorce  decreed  in  another  jurisdiction  according  to  Validity  of 

2  the  laws  thereof  by  a  court  ha\'ing  jurisdiction  of  the  cause  and  of  both  dho^s. 

3  the  parties  shall  be  vaUd  and  effectual  in  this  commonwealth;  but  if  an  §§39,'46. 

4  inhabitant  of  this  commonwealth  goes  into  another  jurisdiction  to  ob-  ^§  14,^55; 

5  tain  a  divorce  for  a  cause  occurring  here  while  the  parties  resided  here,  |- 1;  1*^5  § «: 

6  or  for  a  cause  which  would  not  authorize  a  divorce  by  the  laws  of  this  2  Gray,  367. 

7  commonwealth,  a  divorce  so  obtained  shall  be  of  no  force  or  effect  in  this  is  Gray,  209. 

8  commonwealth.  11  AUen,  i96. 

97  Mass.  538.  129  Mass.  14.  157  M.ass.  42.  224  Mass.  427. 

110  Mass.  463.  136  Mass.  32S.  167  Mass.  474.  225  Mass.  82. 

113  Mass.  438.  149  Mass.  223.  176  Mass.  92.  234  Mass.  269. 

122  Mass.  3,  156.  154  Mass.  290.  218  Mass.  21.  188  U.  S.  14. 


criminal  provisions. 

1_     Section  40.     Persons  divorced  from  each  other  cohabiting  as  hus-  Cohabitation 

2  band  and  wife  or  living  together  in  the  same  house  shall  be  held  to  be  to'be  adultery. 

3  guilty  of  adultery.  i785, 69,  §  6. 

R.  S.  76,  §  19.  G.  S.  107,  §  24.  P.  S.  146,  §  42.  R.  L.  132,  §  36. 


2248 


DrV'ORCE. 


[Ch-vp.  208. 


Penalty  for 
personation, 
etc.,  in  di- 
vorce suits. 
1S73,  371.  §  1. 
P.  S.  146.  §  43. 
R.  L.  132,  §  37. 


Section  41.     Wlioever   falsely  personates  another  or   wilfully   and  1 

fraudulently  procures  a  person  so  to  do,  or  fraudulently  procures  false  2 

testimony  to  be  given,  or  makes  a  false  or  fraudulent  return  of  service  3 

of  process  upon  a  libel  for  divorce  or  in  any  proceeding  connected  there-  4 

Avith,  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  5 

or  by  imprisonment  for  not  more  than  two  years.  6 


pro°cunng°un-  SECTION  42.  \Mioever  knowingly  procures  or  obtains  or  assists  an- 
iss6"342T°'^'^'^'  other  to  procure  or  obtain  any  false,  counterfeit  or  fraudulent  divorce 
K.  L.  152,  § 3S.  Qj.  decree  of  divorce,  or  any  di\orce  or  decree  of  divorce  from  a  court  of 
another  state  for  or  in  favor  of  a  person  who  at  the  time  of  making  ap- 
plication therefor  was  a  resident  of  this  commonwealth,  such  court  not 
having  jurisdiction  to  grant  such  decree,  shall  be  punished  by  a  fine  of 
not  more  than  two  hundred  dollars  or  by  imprisonment  for  not  more 
than  six  months. 


1 
2 
3 
4 
5 
6 
7 
8 


Penalty  for 

advertising  to 

procure 

divorces. 

1SS7,  320. 

R.  L.  152,  I  39. 

1911,83. 


Section  43.     ^^Tioe-ver  writes,  prints  or  publishes,  or  solicits  another  1 

to  write,  print  or  publish,  any  notice,  circular  or  ad\ertisement  soliciting  2 

employment  in  the  business  of  procuring  divorces  or  offering  induce-  3 

ments  for  the  purpose  of  procuring  such  employment  shall  be  punished  4 

by  a  fine  of  not  more  than  two  hundred  dollars  or  by  imprisonment  for  5 

not  more  than  six  months.  6 


unfaw^fuiiy'^  SECTION  44.     Whoever,  except  in  compliance  with  an  order  of  a  court 

cates°ff'^'''*'^'    of  competent  jurisdiction,  gives,  signs  or  issues  any  writing  purporting 

189"  M.  to  grant  a  divorce  to  persons  who  are  husband  and  wife  according  to  the 

R.  L.  152,  §  40.  ifj^yg  Qf  ^i^g  commonwealth,  or  purporting  to  be  a  certificate  that  a  di\'orce 

has  been  granted  to  such  persons,  shall  be  punished  by  a  fine  of  not  more 

than  one  thousand  dollars,  or  by  imprisonment  in  the  jail  for  not  more 

than  three  years,  or  both. 


1911, 


Sic\"attorney  SECTION  45.  .If  a  dlA'orce  is  granted  for  a  cause  constituting  a  crime, 
offenc'er"'  other  than  adultery,  committed  within  the  commonwealth  and  within  the 
Y^s'wt'iii  t'"^®  proA'ided  by  law  for  making  complaints  and  finding  indictments 
R.  L.  152,  §  4i.  therefor,  the  court  granting  the  diA-orce  may,  in  its  discretion,  cause 
notice  of  such  facts  to  be  given  by  the  clerk  of  the  court  to  the  district 
attorney  for  the  county  where  such  crime  was  committed,  with  a  list 
of  the  witnesses  proving  such  crime  and  any  other  information  which  it 
considers  proper;  but  if  the  divorce  is  granted  because  of  adultery  the 
court  shall  cause  notice  of  such  facts,  information  and  list  of  witnesses 
to  be  given  to  the  district  attorney,  and  thereupon  the  district  attorney 
may  cause  complaint  therefor  to  be  made  before  a  magistrate  having 
jurisdiction  thereof,  or  may  present  the  evidence  thereof  to  the  grand  12 
juiy.  13 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 


Returns  of 

statistics  of 

divorce. 

1882,  194, 

§§1,2. 

R.  L.  152,  §  42. 


STATISTICS   OF   DIVORCE. 

Section  46.    The  clerks  of  the  courts  and  the  clerk  of  the  superior  1 

court  for  civil  business  in  Suffolk  county  shall  annually,  in  February,  2 

make  returns  for  the  last  preceding  calendar  year  to  the  state  secretary,  3 

upon  suitable  blank  forms  provided  by  him,  of  the  number  of  libels  4 

pending  at  the  beginning  of  the  year,  the  number  of  libels  filed  within  5 

the  year,  the  number  of  divorces  granted,  the  number  of  divorces  re-  6 

fused,  the  number  of  libels  contested,  the  number  of  libels  uncontested,  7 

the  alleged  cause  for  divorce  in  each  case,  the  sex  of  the  libellant  and  8 


Chap.  209.] 


HUSBAND   AND  WIFE. 


2249 


9  the  length  of  time  the  parties  have  been  married,  and  the  number  of 

10  cases  in  which  notice  has  been  given  to  the  district  attorney  for  prose- 

1 1  cution  under  the  preceding  section  and  the  crime  for  which  divorce  has 

12  been  granted  in  such  cases. 

1  Section  47.     The  state  secretary  shall  annually  prepare  from  said  fi"^jaets°3  °^ 

2  returns  abstracts  and  tabular  statements  of  the  facts  relative  to  divorces  5^o"2''",%4 

3  for  each  county,  and  embody  them,  with  necessary  analyses,  in  his  R.  l!  152,  §  43. 

4  annual  report  to  the  general  court  relative  to  the  registry  of  births, 

5  marriages  and  deaths. 


CHAPTER    209 


HUSBAND  AND  WIFE. 


Sect. 


GENERAL  PROVISIONS. 


1.  Married  woman  may  control  separate 

property. 

2.  Married  woman  may  contract. 

3.  Transfers  between  husband  and  wife. 

4.  Labor  of  married  woman. 

5.  Married  woman  may  be  executrix,  etc. 

6.  Married  woman  may  sue  and  be  sued. 

7.  Liabilities  of  married  woman. 

8.  Husband  not  liable  for  wife's  debts. 

9.  Husband  not  liable  on  certain  contracts 

of  wife  after  marriage. 

10.  Separate  business  certificate. 

11.  Record  of  certificates. 

12.  Trustee  for  married  woman's  separate 

estate. 

13.  Marriage  settlements  not  affected. 

PHOVISIONS   IF   HUSBAND   OR  WIFE   IS   UNDER 
DISABILITT. 

14.  Release  of  dower  by  wife  of  ward. 

15.  Sale  of  her  real  estate. 

16.  Disposition  of  proceeds  of  such  sales. 

17.  Joinder  of  wife  or  husband  of  ward  with 

guardian  in  making  partition. 

18.  Release  of  dower  or  curtesy  of  insane 

person. 

19.  Reservation  for  insane  husband  of  por- 

tion of  proceeds  upon  release  of  cur- 
tesy. 

20.  Reservation  for  insane  wife  of  portion 

of  proceeds  upon  release  of  dower. 

21.  Like  reservation  for  insane  wife  upon 

release  of  homestead. 

22.  Conveyance  if  provision  in  lieu  of  cur- 

tesy or  dower. 


Sect. 

23.  Same  subject. 

24.  Venue  of  proceedings. 

MARRIAGE   CONTRACTS. 

25.  Ante-nuptial  marriage  contracts. 

26.  Record  of  contract  and  description  of 

property. 

27.  Marriage    contract    of    female    minor 

ward. 

MARRIED      W'OMEN      COMING       FROM       OTHER 
STATES,   ETC. 

2S.  Rights  of  woman  coming  into  common- 
wealth without  her  husband. 

29.  Rights  of  persons  married  out  of  com- 

monwealth and  coming   here   to  re- 
side. 

M.^RRIED  WOMEN  ABANDONED  BY  THEIR  HUS- 
BANDS,  ETC. 

30.  Conveyance,  etc.,  of  property  by  mar- 

ried woman  abandoned,  etc.     Venue. 

31.  Sale  of  real  estate  by  non-resident  mar- 

ried woman. 

32.  Orders  for  support,   etc.,   of  wife   de- 

serted. 

33.  Attachment  of  husband's  property  in 

such  case. 

34.  Venue  of  petition. 

35.  Conveyance  and  will  of  married  woman 

living  apart. 

36.  Conveyance  and  will  of  husband  living 

apart. 

37.  Support,   etc.,   of   children   of   parents 

living  separately. 


GENERAL   PROVISIONS. 


1  Section  1.    The  real  and  personal  property  of  a  woman  shall  upon  Married 

2  her  marriage  remain  her  separate  property,  and  a  married  woman  may  rontrol  separate 

3  receive,  receipt  for,  hold,  manage  and  dispose  of  property,  real  and  per-  fg4g"2os,  §  3. 

4  sonal,  in  the  same  manner  as  if  she  were  sole.    But  no  conveyance  by  a  !*'"'•  -0^'  5 1- 


2250 


HUSBAND  .\XD   WIFE. 


[Chap.  209. 


1S55,  304, 
HI.  3. 
1857,  249, 
5§1.2. 
G.  S.  108, 
3.  6.  10. 
1804,  198. 
1S74,  184,  § 


§1, 


married  woman  of  real  estate  shall,  except  as  otherwise  provided  in  this  5 

chapter,  extinguish  or  impair  her  husband's  tenancy  by  the  curtesy  by  6 

statute  or  his  right  to  cm-tesy  existing  on  December  thirty-first,  nine-  7 

teen  hundred  and  one,  in  such  property  unless  he  joins  in  the  conveyance  8 

or  otherwise  releases  the  same.  p-  s.  147,  §  1.  9 


1SS9,  204. 

R.  L.  153,  §  1. 

16  Pick.  137. 

1  Met.  542. 
10  Met.  192. 

2  Cush.  264. 


S  Cush.  56. 
2  Grav,  161. 
10  Gray,  72. 
16  Gray,  105. 

4  Allen,  440. 

5  Allen,  103,  379. 


7  Allen,  504. 
9  Allen,  403. 

11  Allen,  o3S. 

12  Allen,  476. 

13  Allen,  64,  213. 
99  Mass.  241,  561. 


111  Mass.  308. 

112  Mass.  271. 
114  Mass.  550. 
117  Mass.  62,  241. 
128  Mas3.  169,  269. 
167  Mass.  390. 


Married 
woman  may 
contract. 
ISoo.  304, § 
1857,  249,  5 


Section  2.  A  married  woman  may  make  contracts,  oral  and  written,  1 
sealed  and  unsealed,  in  the  same  manner  as  if  she  were  sole,  except  that  2 
she  shall  not  be  authorized  hereby  to  make  contracts  with  her  husband.      3 


G.  S.  108,  §  3. 

105  Mass.  115.414. 

141  Mass.  283. 

1803,  105. 

106  Mass.  305,  307. 

145  Mass.  3.39. 

1S69,  304. 

107  Mass.  437. 

146  ilass.  460,  517. 

1874,  184,  §  1. 

109  Mass.  79,  502. 

150  Mass.  275,  574. 

P.  S.  147,  §  2. 

110  .Mass.  51,  311. 

155  Mass.  52. 

R.  L.  153,  §  2. 

Ill  Mass.  245. 

158  Mass.  3SS. 

10  Cush.  550. 

112  Mass.  99,  271,515. 

162  Mass.  527. 

12  Cush.  486. 

113  .Mass.  25.5. 

166  Mass.  198. 

8  Gray,  542. 

114  Mass.  133,  520.  550. 

168  Mass.  471. 

10  Gray,  222. 

115  Mass.  374. 

1S6  Mass.  244. 

15  Gray,  328,  453. 

117  Mass.  3S2,  532. 

187  Mass.  315. 

3  Allen,  127,  315,  541. 

llSMass.  541,  588. 

190  Mass.  507. 

4  Allen,  342.  346,  412. 

123  Mass.  96. 

195  Mass.  124. 

5  Allen,  460. 

124  Mass.  108. 

200  Mass.  437. 

6  Allen,  136,  300,  305,  565. 

125  Mass.  25,  374. 

203  Mass.  233. 

TAllen,  146,  176,  481. 

126  Mass.  297. 

209  Mass.  193. 

8  Allen,  321,  581. 

130  Mass.  407. 

217  Mass.  411. 

10  Allen,  512. 

133  Mass.  140. 

227  Mass.  166. 

11  Allen,  345. 

134  Mass.  77,  291. 

228  Mass.  305,  549. 

14  Allen,  36. 

135  Mass.  87,  299. 

229  Mass.  11,  87. 

99  Mass.  559,  562. 

138  Mass.  49,  58,  540. 

9  Wall.  743. 

101  Mass.  66. 

139  Mass.  202. 

3  Op.  A.  G.  120,  260 

102  Mass.  246. 

HOMass.  63,  202,  521,560. 

Transfers  be- 
tween husband 
and  wife. 
1857,  249,  §  5. 
G.  S.  108,  §  10. 
1874, 184,  §  1. 
1879,  133. 
P.  S.  147,  §  3. 
1884,  132,  §  1. 
R.  L.  153,  §  3. 
1912,  304. 
1920,  478. 
15  Gray,  322. 


Section  3.     Gifts   of  personal   property,   and   conveyances   of  real  1 

estate  other  than  mortgages,  between  husband  and  wife,  shall  be  valid  2 

to  the  same  extent  as  if  they  were  sole,  except  that  no  such  conveyance  3 

of  real  estate  shall  have  any  effect,  either  in  passing  title  or  otherwise,  4 

until  the  deed  describing  the  property  to  be  transferred  is  duly  acknowl-  5 

edged  and  recorded  in  the  registry  of  deeds  for  the  district  where  the  6 

land  lies.                                            12  -uien,  107, 114.  7 


103  Mass.  300. 

113  Mass.  157. 

114  Mass.  167. 
116  Mass.  490. 


119  Mass.  596. 
126  Mass.  113. 
128  Mass.  169. 
130  Mass.  378,  407. 


134  Mass.  138. 
138  Mass.  358. 

140  Mass.  202. 

141  Mass.  2S3. 


146  Mass.  25. 
138  Mass.  342. 
212  Mass.  486. 
229  Mass.  11. 


Labor  of  mar- 
ried woman. 
1846,  209. 
1855,  304,  §  7. 
G.  S.  108, 
§§3,6. 
1874,  184,  §  1. 


Section  4.     Work  and  labor  performed  by  a  married  woman  for  a  1 

person  other  than  her  husband  and  children  shall,  unless  there  is  an  2 

expres's  agreement  on  her  part  to  the  contrary,  be  presumed  to  be  per-  3 

formed  on  her  separate  accomit.  P-  s.  147,  §  4.  4 


R.  L.  153,  §  4. 
14  Gray,  389. 


1  .AUen,  258. 
97  Mass.  113. 


131  Mass.  533. 
165  Mass.  100. 


219  Mass.  572. 
227  Mass.  166. 


Married  SECTION  5.     A  married  woman  may  be  an  executrix,  administratrix,     1 

woman  may  be  .-'  i  i  •      i   i  1 1-  i     i 

executris. etc.     guardian,  conservator,  trustee  or  receuer,  and  may  bind  herself  and  the    2 
G.  s.'  109,'  §  25.  estate  which  she  represents  without  any  act  or  assent  of  her  husband.  3 

1869,  409.  1874,  184,  §  4.  P.  S.  147,  §  5.  R.  L.  153,  §  5. 


Married 
woman  may  g 
and  be  sued. 
1845,  208,  §  c 
1855,  304, 
§§2,4. 


Section  6.  A  married  woman  may  sue  and  be  sued  in  the  same  1 
manner  as  if  she  were  sole;  but  this  section  shall  not  authorize  suits  2 
between  husband  and  wife.  3 


1857,  249,  §  3. 
G.  S.  108,  §  8. 
1871,  312. 
1874,  184,  §  3. 
P.  S.  147,  §  7. 
R.  L.  153,  §  6. 


6  Gray,  562. 
2  Allen,  48. 
6  Allen,  305. 
10  .illen,  512. 
110  Mass.  238. 
115  Mass.  lis. 


118  Mass.  58. 
120  Mass.  89. 
129  Mass.  407. 
135  Mass.  87. 
155  Mass.  136. 
173  Mass.  214. 


190  Mass.  69. 

191  Mass.  283,  563. 
195  Mass.  124. 
200  Mass.  437. 
208  Mass.  458. 
235  Mass.  261. 


Chap.  209.]  husband  and  wife.  2251 

1  Section  7.    A  married  woman  shall  not  be  liable  for  her  husband's  Liabilities 

2  debts,  nor  shall  her  property  be  liable  to  be  taken  on  an  execution  against  woman"'"^ 

3  him,  except  as  provided  in  section  ten.    But  a  married  woman  shall  be  §f^f,'|.°*' 

4  liable  jointly  with  her  husband  for  debts  due,  to  the  amount  of  one  hun-  ^z  ^-  i°s- 

5  dred  dollars  in  each  case,  for  necessaries  furnished  with  her  knowledge  E-^^^^'i®- 

6  or  consent  to  herself  or  her  family,  if  she  has  property  to  the  amount  of  i9io,'  sto! 

7  two  thousand  dollars  or  more. 

217  Mass.  15.  228  Mass.  305.  229  Mass.  87. 

1  Section  S.    A  husband  shall  not  be  liable  upon  a  cause  of  action  Husband  not 

2  which  originated  against  his  wife  prior  to  their  marriage,  or  to  pay  a  witvsd'ebts. 

3  judgment  recovered  against  her,  except  under  section  ten. 

1S5S,  304,  §  2.  1871,  312.  R.  L.  153,  §  8. 

G.  S.  108,  §  8.  P.  S.  1-17,  §  9. 

1  Section  9.     Contracts  made  by  a  married  woman  relative  to  her  Husband  not 

2  separate  property,  trade,  business,  labor  or  services  shall  not,  except  c&rtain  con- 

3  as  provided  in  the  following  section,  bind  her  husband  or  render  him  or  after  nmrTilfge. 

4  his  property  liable  therefor;   but  she  and  her  separate  property  shall  be  JstfiiM^le' 

5  liable  on  such  contracts  in  the  same  manner  as  if  she  were  sole.  *-*•  ^- 1"*'  5  s. 

p.  S.  147,  §  10.  R.  L.  1.53.  §  9. 

1  Section  10.    If  a  married  woman  does  or  proposes  to  do  business  on  separate 

2  her  separate  account,  she  shall  cause  to  be  recorded  in  the  clerk's  office  cSSe. 

3  of  the  town  where  she  does  or  proposes  to  do  such  business  a  certificate  Issi.'wf' 

4  stating  her  name  and  that  of  her  husband,  the  nature  of  the  business  and  Pg'i47  s  ^ 

5  the  place  where  it  is  or  is  proposed  to  be  carried  on,  giving,  if  practicable,  is9s,  4ib. 

6  the  street  and  number,  and  the  name,  which  shall  not  be  her  husband's,  i  Alien,  258. 

7  under  which  she  proposes  to  carry  on  business.    If  the  nature  of  the  busi-  104  mTs's.  5S9. 

8  ness  or  the  place  where  or  the  name  under  which  it  is  carried  on  is  changed,  lot  Wlfg,  tn. 

9  a  new  certificate  shall  be  recorded  accordingly.    If  she  fails  to  cause  such  ^S|.*''''^^' "' 

10  certificates  to  be  recorded  her  husband  may  do  so.     If  such  certificates  J?!?  Mass.  2S9. 

,,,.,,,,  ■%         1  1  112  Mass.  250. 

1 1  are  not  so  recorded  by  either  husband  or  Miie,  the  personal  property  em-  114  Mass. 77, 

12  ployed  in  such  business  shall  be  liable  to  be  attached  as  the  property  of  120  Mass!  332) 

13  the  husband  and  to  be  taken  on  execution  against  him,  and  the  husband  129' Mass.  296. 

14  shall  be  liable  upon  all  contracts  lawfully  made  in  the  prosecution  of  135  Jials:  fso! 

15  such  business  in  the  same  manner  and  to  the  same  extent  as  if  such  con-  Jig  Mass' si*' 

16  tracts  had  been  made  by  him.    This  section  shall  not,  however,  affect  the  i^"*-  , 

,_      .    ,  „  ,  .„  fi     .  1     J        •  «  150  Mass.  82, 

17  rights  or  any  person  under  any  certincate  nled  or  recorded  prior  to  August  275. 

18  first,  eighteen  hundred  and  ninety-eight.  lea  Mass.  255. 

170  Mass.  142.  190  Mass.  556  197  Mass.  504. 

173  Mass.  90.  191  Mass.  283.  223  Mass.  108. 

1  Section  11.     The  town  clerk  shall,  upon  receipt  of  twenty-five  cents.  Record  of 

2  record  said  certificate  in  a  book  kept  therefor,  noting  therein  and  on  the  issum.I^. 

3  certificate  the  time  when  received;  and  a  certificate  shall  be  considered  as  R.L.^Is.Vn. 

4  recorded  at  the  time  when  left  for  record.    The  clerk  shall  keep  an  index  i^o  Mass.  75. 

5  of  all  such  certificates. 

1  Section  12.     The  probate  court  may,  upon  petition  of  a  married  ^^•15^°'' 

2  woman  having  separate  property,  appoint  a  trustee  to  hold  the  same  in  woman's  sepa- 

3  trust  for  her,  to  whom  she  may  thereupon  con\-ey  it  upon  such  trusts  and  1845,  '20s,  §  8. 

4  to  such  uses  as  she  may  declare.    The  trustee  may  prosecute  and  defend  p. !3.i47,'§  13. 

5  all  actions  relative  to  such  property  brought  by  or  against  her;  and  the  il^l.^Is',!^. 

6  property  in  his  hands  shall  be  liable  to  be  attached  or  taken  on  execution  Jss^Mas's.^ns. 

7  in  anv  such  action.  lae  Mass.  342. 


2252 


HTJSBAND  AND  WIFE. 


[Ch.\p.  209. 


Marriage 
settlements 
not  affected. 
1855,  304,  §  9. 


Section  13.     The  twelve  preceding  sections  shall  not  invalidate  a  mar-     1 
riage  settlement  or  contract.  g.  s.  los,  §  lo.  2 

1S74.  184,  §  6.  P.  S.  147,  §  15.  R.  L.  133,  §  14.  136  Mass.  342. 


PROVISIONS   IF  HUSBAND   OR  WIFE   IS   UNDER  DIS.VBILITY. 

Section  14.  If  the  guardian  or  conservator  of  a  married  man  is 
licensed  to  sell  real  estate  of  his  ward,  the  wife  of  the  ward  may  join  with 
the  guardian  or  conservator  in  the  conveyance,  and  release  dower  and 


Release  of 
dower  by  wife 
of  ward. 
1S23,  146,  §  2. 
R.  S.  77,  §  14. 

P.'  s!  147',  §  16.  homestead  in  the  granted  property,  in  like  manner  as  she  might  have 
R.  l!  145,  §  41;  donc  by  joining  in  a  conveyance  thereof  made  by  her  husband  if  he  had 
i9io,V5^'         been  under  no  legal  disability.  i9i5, 23. 


Section  15.     If  such  guardian  or  conservator  is  licensed  to  sell  the 


Sale  of  her 
real  estate. 

R^l.'  77?'/ IS.  interest  of  the  ward  in  any  real  estate  of  his  wife,  the  wife  may  join  with 

T'suf'iif'  ^^^^  guardian  or  conservator  in  the  conveyance,  and  convey  all  her 

1S98. 527,  §2  estate  and  interest  in  the  granted  property  in  like  manner  as  she  might 
153,  §  16.'      '  have  done  by  a  conveyance  thereof  made  jointly  with  her  husband,  if 

1915!  23'.  he  had  been  under  no  legal  disability. 


Disposition  of 
proceeds  of 
such  sales. 
1823,  146,  §  1. 
R.  S.  77,  §  16. 
G.  S.  108,  §  13. 
P.  S.  147,  §  IS. 
1898,  527,  §  2. 
R.  L.  145,  §  41; 
153,  §  17. 
1910,  95. 
1915,  23. 


Section  16.    If  the  wife  so  releases  her  dower  or  homestead,  or  so  1 

conveys  her  owti  estate,  the  proceeds  of  the  sale  may  be  so  invested  and  2 

disposed  of  as  to  secure  to  her,  and  to  the  minor  children  of  the  owner  if  3 

it  is  an  estate  of  homestead,  the  same  rights  in  the  principal  and  income  4 

thereof  as  she  or  they  would  have  had  therein  if  it  had  not  been  sold.    An  5 

agreement  made  between  her  and  the  guardian  or  conservator  for  securing  6 

and  disposing  of  the  proceeds  or  any  part  thereof  for  the  purpose  afore-  7 

said,  if  approved  by  the  probate  court  for  the  county  where  the  guardian  8 

or  conservator  was  appointed,  or,  in  default  of  such  agreement,  an  order  9 

therefor  made  by  the  probate  court,  shall  be  ^'alid  and  binding  on  all  10 

persons  interested  in  the  granted  property  or  in  said  proceeds,  and  may  1 1 

be  enforced  by  the  court  or  by  an  action  at  law.  12 


Joinder  of  wife 
or  husband  of 
ward  with 
guardian  in 
making  parti- 
tion. 
1830,  54. 
R.  S.  77,  §  20. 
G.  S.  108,  §  15. 
P.  S.  147,  §  19. 
1898,  527,  §  2. 


Section  17.  The  wife  of  a  man  under  guardianship  or  conservator- 
ship may  join  with  his  guardian  or  conservator,  and  the  guardian  or  con- 
servator of  a  woman  may  join  with  her  husband,  in  making  partition  of 
her  real  estate  which  is  held  in  joint  tenancy  or  in  common,  and  they  may 
make  any  release  or  other  conveyance  necessary  or  proper  therefor,  as 
the  parties  might  do  if  neither  of  them  were  under  legal  disability. 

R.  L.  145,  §41;  153.  §  18.  1910,95.  1915,23. 


Release  of 
dower  or 
curtesy  of 
insane  person. 

1856,  169,  §  3. 

1857,  298,  §  10. 
G.  S.  108,  §  20. 
P.  S.  147,  §  20. 
1886,  245,  §  1. 
1890,  105. 
1899,  284,  §  1. 
R.  L.  153,  §  19. 


Section  IS.  The  husband  or  wife  of  an  insane  person  desiring  to  1 
convey  his  or  her  real  estate  absolutely  or  by  mortgage  may  file  a  petition  2. 
in  the  probate  court  describing  such  real  estate  and  praying  that  the  3 
wife's  dower  or  homestead  or  the  husband's  curtesy  therein  may  be  re-  4 
leased,  and  stating  the  facts  and  reasons  why  the  prayer  of  the  petition  5 
should  be  granted.  The  court  may,  after  notice  and  a  hearing,  bj^  a  decree  6 
authorize  the  guardian  of  the  insane  person  to  make  the  release  by  join-  7 
ing  in  any  deed  or  deeds,  mortgage  or  mortgages  of  the  whole  or  a  part  8 
of  said  real  estate  which  is  or  are  made  within  five  years  after  said  9 
decree  by  the  husband  or  wife  of  the  insane  person  or  by  a  trustee  for  10 
such  husband  or  wife.  11 


Chap.  209.]  husband  and  wife.  2253 

1  Section  19.     If  the  guardian  of  an  insane  husband  is  authorized  Reservation 

!•  •  1  1  111  lor  insane  hus- 

2  under  the  preceding  section  to  release  such  curtesy,  and  the  probate  band  of  portion 

3  court  finds  that  a  portion  of  the  proceeds  of  such  real  estate,  or  of  an  release  of  "^"^ 

4  amount  loaned  on  mortgage  thereof,  should  be  reserved  for  the  use  of  issefl-is,  §  2. 

5  such  ward,  it  may  order  a  certain  portion,  not  exceeding  one  third  of  the  \tll[  lit'.  |  f. 

6  net  amount,  if  it  is  in  respect  of  the  tenancy  by  the  curtesy  by  statute,  ^^l;  ^gg  §  20 

7  of  the  proceeds  or  amount  actually  realized  from  such  sale  or  mortgage, 

8  exclusive  of  any  encumbrance  then  existing  on  said  real  estate,  to  be  set 

9  aside  and  paid  over  to  such  guardian,  to  be  invested  and  held  for  the 

10  benefit  of  the  husband  during  his  life  if  he  survives  his  wife.    The  income 

11  of  such  portion  shall  be  received  and  enjoyed  by  the  wife  during  the  life 

12  of  her  husband,  or  until  otherwise  ordered  by  the  court  for  cause.  If 
1.3  she  survives  him,  the  principal  shall  upon  his  death  be  paid  over  to  her, 
14  but  if  she  does  not  survi\'e  him,  to  her  heirs,  executors  or  administrators. 

1  Section  20.     If  the  guardian  of  an  insane  wife  is  authorized  under  Reservation 

2  section  eighteen  to  release  the  dower  of  his  ward,  and  the  probate  court  o'fVort'io'n  ^f  ^ 

3  finds  that  a  portion  of  the  proceeds  of  such  real  estate,  or  of  an  amount  feS''of"''°° 

4  loaned  on  mortgage  thereof,  should  be  reserved  for  the  use  of  such  ward,  igse^ieg  §  4 

5  it  may  order  a  certain  portion,  not  exceeding  one  third  of  the  net  p|j47'||f 

6  amount  of  the  proceeds  or  amount  actually  realized  from  such  sale  or  R-  l-  i53,'§  21. 

7  mortgage,  exclusive  of  any  encumbrance  then  existing  on  said  real  estate, 

8  to  be  set  aside  and  paid  over  to  such  guardian,  to  be  invested  and  held 

9  for  the  benefit  of  the  wife  during  her  life  if  she  survives  her  husband. 

10  The  income  of  such  portion  shall  be  received  and  enjoyed  by  the  husbajid 

11  during  the  life  of  his  wife,  or  until  otherwise  ordered  by  the  court  for 

12  cause.     If  he  survives  her,  the  principal  shall  upon  her  death  be  paid 

13  over  to  him,  but  if  he  does  not  survive  her,  to  his  heirs,  executors  or 

14  administrators. 

1  Section  21.    If  the  guardian  of  an  insane  wife  is  authorized  under  Liitereser- 

2  section  eighteen  to  release  an  estate  of  homestead,  and  the  probate  court  inline  ^-ie 

3  finds  that  a  portion  of  the  proceeds  of  the  real  estate  sold,  or  of  an  amount  honrest'S"  °* 

4  loaned  on  mortgage  thereof,  should  be  reserved  for  the  use  of  the  ward,  q  ^|'  f^f  |  II- 

5  it  may  order  a  certain  portion,  not  exceeding  eight  hundred  dollars,  to  £•  L^iJj^s^fi 

6  be  set  aside  and  paid  over  to  such  guardian  to  be  invested  in  a  homestead, 

7  and  held  by  him  for  the  benefit  of  his  ward,  if  she  survives  her  husband ; 

8  the  rent  or  use  thereof  to  be  received  and  enjoyed  by  the  husband  dur- 

9  ing  the  life  of  his  wife,  or  until  otherwise  ordered  by  the  court  for  cause; 

10  and  the  homestead  to  be  his,  and  to  be  conveyed  to  him  by  said  guardian, 

11  if  he  survives  her. 

1  Section  22.     If  the  husband  or  wife  of  an  insane  person  conveys  real  Conveyance  if 

rt  •  •!  p  •  11  ..  provision  in 

2  estate  in  trust  without  a  power  of  revocation  and  makes  a  provision  Ueu  of  curtesy 

3  therein  for  the  insane  husband  or  wife,  respectively,  which  the  probate  isso,  leo,  §  5. 

4  court,  upon  petition,  after  notice  and  hearing,  finds  is  sufficient  in  lieu  p.'  s.'  u?,'  §  23! 

5  of  curtesy  or  dower,  the  trustee  may  convey  such  real  estate  free  from  all  ^'  ^'  ^^^'  ^  ^^' 

6  right  of  curtesy  or  dower. 

1  Section  23.     The  court,  under  the  preceding  section,  may  find  that  fg^^feg^s^g 

2  the  provision  for  the  husband  or  wife  is  sufficient  in  lieu  of  curtesy  or  o.  s."  iqs',  §  24. 

3  dower  either  in  the  whole  or  in  particular  portions  of  the  real  estate  of  r.  l.  153,  §  24. 


2254 


HUSBAND  .\XD  W^FE. 


[Chap.  209. 


Venue  of 
proceedings. 
1856,  169,  §  7. 
G.  S.  108.  §  2.3. 
P.  S.  147,  §  25, 
1SS6,  245,  §  3. 
R.  L.  153,  §  25. 


the  husband  or  wife,  and  thereupon  the  guardian  of  such  insane  husband  4 

or  wife  may  be  authorized  to  release  the  curtesy  or  dower  in  the  whole  or  5 

in  particular  portions  thereof.  6 

Section  24.     Proceedings  under  the  six  preceding  sections  shall,  if  1 

the  husband  or  wife  of  such  insane  person  is  an  inliabitant  of  this  com-  2 

monwealth,  be  in  the  county  where  he  or  she  resides;    otherwise,  in  a  3 

county  where  any  of  his  or  her  real  estate  is  situated ;  and  a  certified  copy  4 

of  all  final  orders  or  decrees  in  such  proceedings  shall  be  recorded  in  the  5 

registry  of  deeds  in  every  county  or  district  where  such  real  estate  lies.  6 


Ante-nuptial 
marriage  con- 
tracts. 

1845,  208,  §  1. 
G.  S.  10$,  §  27, 
P.  S.  147,  §  20. 
R.  L.  153,  §  2B. 

8  Gray,  542. 
2  Allen,  36. 
5  Allen,  187. 

9  Allen,  234. 

10  Allen,  278. 

109  Mass.  201. 

110  Mass.  401. 
128  Mass.  son. 
139  Mass.  144. 
148  Mass.  132. 
195  Mass.  230. 
212  Mass.  131. 
227  Mass.  331. 

Record  of 
contract  and 
description  of 
property. 
1845,  208,  §  2. 
G.  S.  108,  §  28. 
1867,  248. 
P.  S.  147,  §  27. 
R.  L.  153,  §  27. 
4  Allen,  412. 
100  Mass.  337. 
109  Mass.  2G1. 
148  Mass.  132. 
169  Mass.  186. 
175  Mass.  349. 


MARRIAGE  CONTR-iCTS. 

Section  25.  At  any  time  before  marriage,  the  parties  may  make  a  1 
written  contract  pro\iding  that,  after  the  marriage  is  solemnized,  the  2 
whole  or  any  designated  part  of  the  real  or  personal  property  or  any  right  3 
of  action,  of  which  either  party  may  be  seized  or  possessed  at  the  time  4 
of  the  marriage,  shall  remain  or  become  the  property  of  the  husband  or  5 
wife,  according  to  the  terms  of  the  contract.  Such  contract  may  limit  6 
to  the  husband  or  wife  an  estate  in  fee  or  for  life  in  the  whole  or  any  part  7 
of  the  property,  and  may  designate  any  other  lawful  limitations.  All  8 
such  limitations  shall  take  effect  at  the  time  of  the  marriage  in  like  9 
manner  as  if  they  had  been  contained  in  a  deed  conveying  the  property  10 
limited.  11 

Section  26.     A  schedule  of  the  property  intended  to  be  affected,  con-  1 

taining  a  sufficiently  clear  description  thereof  to  enable  a  creditor  of  the  2 

husband  or  wife  to  distinguish  it  from  other  property,  shall  be  annexed  3 

to  such  contract;  and  such  contract  and  schedule  shall,  either  before  the  4 

marriage  or  within  ninety  days  thereafter,  be  recorded  in  the  registry  of  5 

deeds  for  the  county  or  district  where  the  husband  resides  at  the  time  of  6 

the  record,  or,  if  he  is  not  a  resident  of  this  commonwealth,  then  in  the  7 

registry  of  deeds  for  the  county  or  district  where  the  wife  resides  at  the  8 

time  of  the  record,  if  it  is  made  before  the  marriage,  or  where  she  last  9 

resided,  if  made  after  the  marriage.    If  the  contract  is  not  so  recorded,  it  10 

shall  be  void  except  as  between  the  parties  thereto  and  their  heirs  and  11 

personal  representatives.     It  shall  also  be  recorded  in  the  registry  of  12 

deeds  for  every  county  or  district  where  there  is  land  to  which  it  relates.  13 


Marriage  con- 
tract of  female 
minor  ward. 
1869,  292. 
P.  S.  147,  §  28. 
R.  L.  153,  §  28. 


Section  27.    A  female  minor  who  has  become  eighteen  may  join  with  1 

her  guardian  in  making  such  marriage  contract,  and  for  such  purpose  the  2 

guardian  and  ward  may  convey  her  real  and  personal  property  to  trustees  3 

approved  by  the  probate  court  having  jurisdiction  over  said  minor,  to  be  4 

held  upon  the  trusts  declared  in  such  contract,  and  such  conveyance  shall  5 

have  like  effect  as  if  said  minor  were  of  full  age,  and  the  guardian  in  the  6 

settlement  of  his  accounts  shall  be  allowed  by  the  probate  court  for  all  7 

property  so  conveyed  to  said  trustees.    The  court  may  require  said  trus-  S 

tees  to  give  bond  with  sufficient  sureties  for  the  faithful  performance  of  9 

their  trust.  10 


Rights  of 
woman  coming 
into  common- 
wealth without 
her  husband. 


M.ARRIED  WOMEN  COMING   FROM   OTHER   ST.«ES,  ETC. 

Section  28.     If  a  married  woman  comes  from  another  state  or  country  1 

into  this  commonwealth  without  her  husband,  who  has  never  lived  with  2 

her  in  this  commonwealth,  she  shall  have  all  the  rights  and  powers  given  3 


Chap.  209.]  husband  and  wife.  2255 

4  to  married  women  by  the  foregoing  sections,  and  may  transact  business,  R.  s.  77,  §  is. 

5  make  contracts,  sue  and  be  sued  in  her  own  name,  and  dispose  of  her  p.'s.'i47,'§29.' 

6  property  which  may  be  found  here,  in  hke  manner  as  if  she  were  sole.         f^  Mass^sP^' 

1  Section  29.     If  a  husband  and  his  wife,  married  in  another  state  or  Rights  of 

2  country,  come  into  this  commonwealth,  either  at  the  same  or  at  different  ounfcom™ 

3  times,  and  reside  here  as  husband  and  wife,  she  shall  retain  all  property  "nTcom'i'n\ 

4  which  she  had  acquired  by  the  laws  of  any  other  state  or  country,  or  r"|*?7''^|''J9 

5  by  a  marriage  contract  or  settlement  made  out  of  this  commonwealth.  (/'I'jos'l  fn 

6  Such  residence  together  here  shall  have  the  same  effect,  relative  to  their  p.' s.' 147,' §  so." 

7  subsequent  rights  and  liabilities,  as  if  they  had  married  here  at  the  be-    •   ■      ' 

8  ginning  of  such  residence. 

married  women  abandoned  by  their  husb.vnds,  etc. 

1  Section  30.     A  probate  court,  upon  petition  of  a  married  woman  Conveyance, 

2  whose  husband  abandoning  and  not  sufficiently  maintaining  her  has  Iny'byma?- 

3  absented  himself  from  this  commonwealth,  or  has  been  sentenced  to  con-  "bandoS" 

4  finement  in  the  state  prison,  may  authorize  her  to  sell,  convey,  receive  «l|y  J]f°"<=- 

5  and  receipt  for  her  real  and  personal  property,  any  personal  property  §§  i.'s." 

6  which  may  have  come  to  her  husband  by  reason  of  the  marriage  and  r.  s.'77,' 

7  remains  in  this  commonwealth  undisposed  of  by  him  or  any  personal  prop-  1;  n-i's'^' 

8  erty  to  which  he  is  entitled  in  her  right,  and  to  use  and  dispose  of  the  same  ^^,35^°^'  ^^  ^^" 

9  or  the  proceeds  thereof,  during  his  absence  or  imprisonment,  as  if  she  Fif/I, 

10  were  sole;  and  the  authority  so  granted  shall  continue  until  the  husband  is87.'332,  §  2. 

11  returns  to  this  commonwealth  and  claims  his  marital  rights,  or  is  dis-  §§31,32.' 

12  charged  from  prison.    Such  petition  may  be  filed,  heard  and  determined  I  Met:478! 

13  in  the  probate  court  in  any  county,  and  notice  shall  be  given  as  provided  ^"  '^'^°'  ^^^' 

14  in  case  of  divorce  libels  when  the  libellee  is  out  of  this  commonwealth. 

1  Section  31.     A  married  woman  residing  without  this  commonwealth,  Saieof  re.ii 

2  and  owning  in  her  own  right  real  estate  situated  herein,  whose  husband  resriln/  °°°' 

3  abandoning  and  not  sufficiently  maintaining  her  has  absented  himself  woman! 

4  from  the  place  where  they  last  dwelt  together,  may  petition  the  probate  i''^i'',477. 

5  court  in  any  county  where  the  land  lies,  describing  such  real  estate 

6  and  praying  for  authority  to  sell  and  convey  it  in  the  same  manner  and 

7  with  the  same  effect  as  if  she  were  sole.    The  court,  after  such  notice  as 

8  it  may  order,  if  it  finds  that  the  petitioner  has  been  abandoned  by  her 

9  husband  and  that  he  does  not  sufficiently  maintain  her,  may  authorize 

10  the  petitioner  to  sell  and  convey  within  one  year  from  the  date  of  such 

1 1  decree  such  real  estate  as  if  she  were  sole. 

1  Section  32.     If  a  husband  fails,  without  just  cause,  to  provide  suitable  orders  for 

2  support  for  his  wife,  or  deserts  her,  or  if  the  wife,  for  justifiable  cause,  of  w'^ife'' ''*°" 

3  is  actually  li^•ing  apart  from  her  husband,  the  probate  court  may,  upon  ist"*!^. 

4  her  petition  or,  if  she  is  insane,  upon  the  petition  of  her  guardian  or  next  ]f^f;  J'f'^V' 

5  friend,  prohibit  the  husband  from  imposing  any  restraint  on  her  personal  r-  f'\\t;  |i|- 

6  liberty  during  such  time  as  the  court  shall  by  its  order  direct  or  until  the  a  Met.  2.w. 

7  further  order  of  the  court  thereon;  and,  upon  the  application  of  the  hus-  120  Mass. 320. 

8  band  or  wife  or  of  her  guardian,  the  court  may  make  further  orders  relative  Hq  ^"33!  is?! 

9  to  the  support  of  the  wife  and  the  care,  custody  and  maintenance  of  the  540Mass'56o' 

10  minor  children  of  the  parties,  may  determine  with  which  of  their  parents  i;||  m^^^o-s' 

11  the  children  or  any  of  them  shall  remain  and  may,  from  time  to  time,  us  Mass.  40 

12  upon  a  similar  application,  revise  and  alter  such  order  or  make  a  new  153  Mass!  as. " 


2256 


HUSBAND  AND  WIFE. 


[Chap.  209. 


154  Mass.  262.   ordcr  OF  dccrec,  as  the  circumstances  of  the  parents  or  the  benefit  of  the  13 

156  Mass.  4S5.        ,  .,  ,  .  -  . 

159  Mass.  91,       children  may  TeqUirC.  leo  Mass.  149,232,464.  161Mass.58.  175  Mass.  316.  14 

*''■'•  i7KM,==  OQO  1S9  Mass.  281.  208  Mass.  458.  222  Mass.  563. 

195  Mass.  436.  21S  Mass.  21,  73.  234  Mass.  37. 

196  Mass.  179,  509.  220  Mass.  38,  197.  236  Mass.  248,  353. 


176  Mass.  229. 
184  Mass.  394,  488. 
186  Mass.  244. 


Attachment 

of  husband's 

property  in 

such  case. 

1878,  199,  §  2. 

1879,31. 

P.  S.  147,  §  35. 


Section  33.    Upon  such  petition,  an  attachment  of  the  husband's  1 

property  may  be  made  as  upon  a  Hbel  for  divorce;  and  sections  seven-  2 

teen,  thirty-three  and  thirty-five  of  chapter  two  hundred  and  eight  shall  3 

apply  to  proceedings  upon  such  petition,  so  far  as  appropriate.  4 


R.  L.  153,  §  35. 
ISO  Mass.  92. 


163  Mass.  530. 
1S6  Mass.  244. 


196  Mass.  509. 
208  Mass.  458. 


218  Mass.  73. 


pe^'ition^  Section  34.    A  petition  under  section  thirty-two  or  thirty-six  may  1 

188^1. 33\  be  brought  in  the  county  where  either  of  the  parties  lives,  except  that  if  2 

r'.  l.  153,  §  34.  the  petitioner  has  left  the  county  where  the  parties  have  lived  together  3 

'^^^      ■  and  the  respondent  still  lives  therein,  the  petition  shall  be  brought  in  4 

that  county.  5 


and  w^ufor  SECTION  35.     If  a  court  having  jurisdiction  has  entered  a  decree  that 

ih^n '"^a  ar°™''°  ^  married  woman  has  been  deserted  by  her  husband  or  is  living  apart  from 
isss'  255  '^™  ^^^  justifiable  cause,  she  may  convey  her  real  estate  in  the  same 

R.  l!  153',  §  36.  manner  and  with  the  same  effect  as  if  she  were  sole;  and  the  surviving 
220  Mass.  197!   husband  shall  not  be  entitled  under  section  fifteen  of  chapter  one  hundred 
and  ninety-one  to  waive  the  provisions  of  a  will  made  by  her. 


Conveyance 
and  will  of 
husband  living 
apart. 
1906,  129. 

1919,  333,  §  27. 

1920.  2. 

198  Mass.  136. 


Section  36.     A  probate  court  may  upon  petition  of  a  husband  or,  if  1 

he  is  insane,  of  his  guardian  or  next  friend,  enter  a  decree  tliat  said  husband  2 

has  been  deserted  by  his  wife  or  that  he  is  li\'ing  apart  from  her  for  justi-  3 

fiable  cause,  and  he  may  thereafter  convey  his  real  estate  in  the  same  4 

manner  and  M'ith  the  same  effect  as  if  he  were  sole;   and  the  surviving  5 

wife  shall  not  be  entitled  under  section  fifteen  of  chapter  one  hundred  6 

and  ninety-one  to  waive  the  provisions  of  a  will  made  bj'  him.    Section  7 

seventeen  of  chapter  two  hundred  and  eight  shall  apply  to  proceedings  8 

upon  such  petition,  so  far  as  applicable.  9 


Support,  etc., 
of  children  of 
parents  living 
separately. 
1856,  24. 
G.  S.  107, 
§§  36,  37. 
P.  S.  147,  §  36. 
1887,  332,  §  2. 
R.  L.  153,  §  37. 

1919,  333,  §  28. 

1920,  2. 

138  Mass.  449. 
162  Mass.  375. 
189  Mass.  281. 


Section  37.     If  the  parents  of  minor  cliildren  live  apart  from  each  1 

other,  not  being  divorced,  the  probate  court  for  the  county  in  which  2 

said  minors  or  any  of  them  are  residents  or  inhabitants,  upon  petition  of  3 

either  parent,  or  of  a  next  friend  in  behalf  of  the  children  after  notice  to  4 

both  parents,  shall  have  the  same  power  to  make  decrees  relative  to  their  5 

care,  custody,  education  and  maintenance,  and  to  revise  and  alter  such  6 

decrees  or  make  new  decrees,  as  the  superior  court  has  relative  to  children  7 

whose  parents  are  divorced.             227  Mass.  77.                236  Mass.  248.  8 


REFERENCES. 

§    1.     Rights  of  curtesy,  Chap.  189,  §  1. 

§  32.     Alimony  and  support  of  children  in  divorce  cases,  Chap.  20S,  §§  17,  28,  34. 

Criminal  procedure  to  compel  support  of  wife  and  minor  children,  Chap.  273. 

Sale,  etc.,  of  homestead  estate  to  furnish  support.  Chap.  188,  §§  1,  3. 

Effect  of  divorce  proceedings  on  proceedings  under  this  section.  Chap.  208, 
§20. 

Habeas  corpus  proceedings  to  bring  children  before  the  court,  Chap.  208,  §  32. 

Method  of  proving  marriage.  Chap.  207,  §§  45-47. 

Effect  of  appeal.  Chap.  215,  §  24. 

Power  of  probate  court  to  eniorce  its  decrees.  Chap.  215,  §  34. 
§  37.     Authority  of  court  in  divorce  cases,  Chap.  208,  §§  28,  29,  36. 

Support  of  minor  cliildren.  Chap.  201,  §  40. 


Ch.\p.  210.] 


ADOPTION,  CH-\JVGE  OF  N.^IES. 


2257 


CHAPTER    210. 

ADOPTION   OF  CHILDREN   AND   CHANGE   OF   NAMES. 


Sect. 


ADOPTION    OP    CHILDREN. 


1.  When  adoption  permitted. 

2.  Written    consent    of    certain    persons 

required. 

3.  Consent  not  required  in  certain  cases. 

4.  Notice. 

5.  Proceedings    upon    failure    to    object 

after  notice. 

6.  Decree  of  court  and  its  effect. 

7.  Rights  of  adopted  child  as  to  succes- 

sion to  property. 


Sect. 

8.  Rights  of  adopted   child   under  wills. 

trusts,  etc. 

9.  Rights    in    this    commonwealth    of    a 

child  adopted  in  another  state. 

10.  Effect  of  second  adoption. 

11.  Appeals. 

CHANGE    OF   NAMES. 

12.  Petitions  for  change  of  name. 

13.  Notice  and  certificate. 

14.  Annual  return  of  changes. 


ADOPTION   OF   CHILDREN. 


1  Section  1.     A  person  of  full  age  may  petition  the  probate  court  in  the  when  adop- 

2  county  where  he  resides  for  leave  to  adopt  as  his  child  another  person  is's'irs™"^'^' 

3  younger  than  himself,  unless  such  other  person  is  his  or  her  wife  or  hus-  ^^g'lio 


4  band,  or  brother,  sister,  uncle  or  aunt,  of  the  whole  or  half  blood.    If  the  jpj^'  |}0' 

5  petitioner  has  a  husband  or  wife  living,  competent  to  join  in  the  petition,  §§  i6,  ii.' 

6  such  husband  or  wife  shall  ioin  therein,  and  upon  adoption  the  child  R.  l.  is4',  §  i, 

JC  J.  ■     1      U-i        J.      C  J.U-      124Mass.592. 

Ir  a  person  not  an  inhabitant  oi  this  137  Mass.  346. 


7  shall  in  law  be  the  child  of  both. 


8  commonwealth  desires  to  adopt  a  child  residing  here,  the  petition  may  \ll  mIH.  404. 

9  be  made  to  the  probate  court  in  the  county  where  the  child  resides.  Jos  Mass',  sle. 

206  Mass.  294.  226  Mass.  396. 


1  Section  2.    A  decree  for  such  adoption  shall  not  be  made,  except  as  written  con- 

2  hereinafter  provided,  without  the  written  consent  of  the  child,  if  above  persora'''^'^*'"" 

3  the  age  of  fourteen;  of  her  husband,  if  she  is  a  married  woman;  of  the  585'i!"24, 

4  lawful  parents  or  surviving  parent;  of  the  parent  having  the  lawful  ciis-  ll^^%2 

5  tody  of  the  child,  if  the  parents  are  divorced  or  are  living  separately;  J?^|',^1a 

6  of  the  guardian  of  the  child,  if  any;  of  the  mother  only  of  the  child,  if  §'§2,'5. 

7  illegitimate;   or  of  the  person  substituted  for  any  of  the  above  named  §§2,'4,   ' 

8  by  this  chapter.     Illegitimacy  shall  in  no  case  be  expressly  averred  Wi.'ui.'il' 

9  upon  the  record.    A  person  whose  consent  is  hereby  required  shall  not  ^,02;  lit]  §  I2. 

10  thereby  be  debarred  from  being  the  adopting  parent.    If  the  child  has  fi'^^j^j^^'^^  202 

11  been  previously  adopted,  the  consent  of  the  previous  adopting  parent  }?I  m"^^- oio- 

12  shall  also  be  required.  195  Mass.  is7. 


1  Section  3.     The  consent  of  the  persons  named  in  the  preceding  sec-  Consent  not 

2  tion,  other  than  the  child  or  her  husband,  if  any,  shall  not  be  required  cS^'in'c.^ses. 

3  if  the  person  to  be  adopted  is  of  full  age,  nor  shall  the  consent  of  any  llill^'j  1. 

4  such  person  other  than  the  child  be  required  if  such  person  is  adjudged  ^g^^-  ^^^^^^  §  ■'• 

5  by  the  court  hearing  the  petition  to  be  hopelessly  insane,  or  is  imprisoned  ^L|'^;-,,  5 

6  in  the  state  prison  or  in  a  house  of  correction  in  this  commonwealth  i87b!2i3] 

7  under  sentence  for  a  term  of  which  more  than  three  years  remain  une.xpired  p.  s.'  us.  §  3. 

8  at  the  date  of  the  petition;  or  if  he  has  wilfully  deserted  and  neglected  ilgs! 433!  1 24. 

9  to  provide  proper  care  and  maintenance  for  such  child  for  two  years  last  Jgo?;  lot'.    ^' 
10  preceding  the  date  of  the  petition;  or  if  he  has  suffered  such  child  to  be  JgyVats' 34*6^' 


2258 


ADOPTION,   CH.\NGE   OF  NAMES. 


[Chap.  210. 


183  Mass.  404. 
195  Mass.  1S7. 


supported  for  more  than  two  years  continuously  prior  to  the  petition  by  11 
an  incorporated  charitable  institution  or  as  a  pauper  by  a  town  or  by  the  12 
commonwealth ;  or  if  he  has  been  sentenced  to  imprisonment  for  drunken-  13 
ness  upon  a  third  conviction  within  one  year  and  neglects  to  provide  14 
proper  care  and  maintenance  for  such  child;  or  if  such  person  has  been  15 
convicted  of  being  a  common  nightwalker  or  a  lewd,  wanton  and  lasciv-  16 
ious  person,  and  neglects  to  provide  proper  care  and  maintenance  for  17 
such  child.  A  gi^^ng  up  in  writing  of  a  child,  for  the  purpose  of  adoption,  IS 
to  an  incorporated  charitable  institution  shall  operate  as  a  consent  to  19 
any  adoption  subsecjuently  approved  by  such  institution.  Notice  of  the  20 
petition  shall  be  given  to  the  department  of  public  welfare,  if  the  child  21 
is  supported  as  a  pauper  by  a  town  or  by  the  commonwealth,  and  if  the  22 
child  is  supported  by  a  town,  notice  shall  also  be  given  to  the  overseers  of  23 
the  poor  thereof,  and  in  Boston  said  notice  shall  be  given  both  to  the  24 
overseers  of  the  poor  and  to  the  trustees  for  children.  25 


Notice. 
1859,  61.  §  2. 


G.  S.  110, 
1864,  213,  I  1. 

1871,  310,  §  5. 

1872,  311,  I  3. 
1876,  213,  I  5. 
P.  S.  148.  §  4. 
R.  L.  154,  §  4. 
1915,53. 
1919,  3.50,  §  87. 
137  Mass.  84, 
346. 

154  Mass.  378. 


Section  4.  If  the  written  consent  required  by  the  two  preceding  1 
sections  is  not  submitted  to  the  court  with  the  petition,  the  court  shall  2 
order  notice  by  personal  service  on  the  parties  of  a  copy  of  the  petition  3 
and  order  thereon,  or,  if  they  are  not  found  within  this  commonwealth,  4 
by  publication  of  the  petition  and  order  once  in  each  of  three  successive  5 
weeks  in  such  newspaper  as  the  court  orders,  the  last  publication  to  be  6 
seven  days  at  least  before  the  time  appointed  for  the  hearing,  and  the  7 
court  may  require  additional  notice  and  consent.  But  if  such  child  is  of  8 
unknown  parentage  and  is  a  foundling,  publication  as  herein  set  forth  9 
shall  not  be  required;  but  notice  of  the  petition  shall  be  given  to  the  10 
department  of  public  welfare.  11 


Proceedings 
upon  failure  to 
object  after 
notice. 

1851,324,  §  2. 
1853,31. 
G.S.  110,  I  2. 


Section  5.  If,  after  such  notice,  a  person  whose  consent  is  required 
does  not  appear  and  object  to  the  adoption,  the  court  may  act  upon  the 
petition  without  his  consent,  subject  to  his  right  of  appeal,  or  it  may 
appoint  a  guardian  ad  litem  with  power  to  give  or  withhold  consent. 

137  Mass.  346. 


1864,  213,  §  3. 
1S76,  213,  §  6. 


P.  S.  148,  §  5. 
E.  L.  154,  §  5. 


Decree  of  court 

and  its  effect. 

1S51,  324, 

i§5-7. 

G.  S.  110, 

§§  6-8. 

1871,310, 

§§7,9. 

1876,213, 

§§7,10. 

P.  S.  148,  §  6. 

R.  L.  154,  §  6. 

140  Mass.  668. 

226  Mass.  479. 


Section  6.  If  the  court  is  satisfied  of  the  identity  and  relations  of  the  1 
persons,  and  that  the  petitioner  is  of  sufficient  ability  to  bring  up  the  2 
cliild  and  provide  suitable  support  and  education  for  it,  and  that  the  cliild  3 
should  be  adopted,  it  shall  make  a  decree,  by  which,  except  as  regards  4 
succession  to  property,  all  rights,  duties  and  other  legal  consequences  of  5 
the  natural  relation  of  child  and  parent  shall  thereafter  exist  between  the  6 
child  and  the  petitioner  and  his  kindred,  and  such  rights,  duties  and  7 
legal  consequences  shall,  except  as  regards  marriage,  incest  or  cohabita-  8 
tion,  terminate  between  the  child  so  adopted  and  his  natural  parents  9 
and  kindred  or  any  previous  adopting  parent;  but  such  decree  shall  10 
not  place  the  adopting  parent  or  adopted  child  in  any  relation  to  any  11 
person,  except  each  other,  different  from  that  before  existing  as  regards  12 
marriage,  or  as  regards  rape,  incest  or  other  sexual  crime  committed  13 
by  either  or  both.  The  court  may  also  decree  such  change  of  name  as  14 
the  petitioner  may  request.  If  the  person  so  adopted  is  of  full  age,  he  15 
shall  not  be  freed  by  such  decree  from  the  obligations  imposed  by  sec-  16 
tion  six  of  chapter  one  hundred  and  seventeen  and  section  twenty  of  17 
chapter  two  hundred  and  seventy-three.  IS 


Ch.\P.   210.]  ADOPTION,   CHLVNGE   OF  NAMES.  2259 

1  Section  7.     A  person  adopted  in  accordance  with  this  chapter  shall  ^j^''^|d°'pj,iy 

2  take  the  same  share  of  the  property  which  the  adopting  parent  could  as  to  succes- 

3  dispose  of  by  will  as  he  would  have  taken  if  born  to  such  parent  in  lawful  erty. 

4  wedlock,  and  he  shall  stand  in  regard  to  the  legal  descendants,  but  to  no  g.^s.'iio.'§  t.' 

5  other  of  the  kindred  of  such  adopting  parent,  in  the  same  position  as  if  Jl-J;  213,'  1 1'. 

6  so  born  to  him.    If  the  person  adopted  dies  intestate,  his  property  ac-  rl  "54,17. 

7  quired  by  himself  or  by  gift  or  inheritance  from  his  adopting  parent  or  i|5  Mass.  262. 

8  from  the  kindred  of  such  parent  shall  be  distributed  according  to  chapters  hs  Mass.  619. 

9  one  hundred  and  ninety  and  one  hundred  and  ninety-six  among  the  iss  Mass' 404! 

10  persons  who  would  have  been  his  kindred  if  he  had  been  born  to  his  adopt-  212  Masll  454! 

11  ing  parent  in  lawful  wedlock;  and  property  received  by  gift  or  inheritance  225  Mass!  11^' 

12  from  his  natural  parents  or  kindred  shall  be  distributed  in  the  same  man-  Ifg  '^''^-  ^^^• 

13  ner  as  if  no  act  of  adoption  had  taken  place.    The  apportionment  and  234  Mass.  540. 

14  distribution  shall  be  ascertained  by  the  court.     A  person  shall  not  by 

15  adoption  lose  his  right  to  inherit  from  his  natural  parents  or  kindred. 

1  Section  8.     The  word  "child",  or  its  equivalent,  in  a  grant,  trust  RJ^hts^of^^.^^ 

2  settlement,  entail,  devise  or  bequest  shall  include  a  child  adopted  by  the  under  wius, 

3  settlor,  grantor  or  testator,  unless  the  contrary  plainly  appears  by  the  isr'e.  2i3,§9. 

4  terms  of  the  instrument;   but  if  the  settlor,  grantor  or  testator  is  not  r.l.  154,  is. 

5  himself  the  adopting  parent,  the  child  by  adoption  shall  not  have,  under  \\l  Hl^]  Ht'. 

6  such  instrument,  the  rights  of  a  child  born  in  lawful  wedlock  to  the  lIlMasl'.tlk 

7  adopting  parent,  unless  it  plainly  appears  to  have  been  the  intention  of  iw  Mass.  540. 

8  the  settlor,  grantor  or  testator  to  include  an  adopted  child.  214  Mass.  172. 

226  Mass.  396. 

1  Section  9.     An  inhabitant  of  another  state,  adopted  as  a  child  in  Rights  in  this 

2  accordance  with  the  laws  thereof,  shall  upon  proof  of  such  fact  be  en-  of ""hud  ^"^ 

3  titled  in  this  commonwealth  to  the  same  rights  of  succession  to  prop-  tnothlrsTate. 

4  erty  as  he  would  have  had  in  the  state  where  he  was  adopted,  except  p'Ji;iii;^g^' 

5  so  far  as  such  rights  are  in  conflict  with  this  chapter. 

R.  L.  154,  §  9.  124  Mass.  592.  129  Mass.  243. 

1  Section  10.     If  the  child  has  been  pre\'iously  adopted,  all  the  legal  o^^d  adoptfo'n. 

2  consequences  of  the  former  decree  shall,  upon  a  subsequent  adoption,  p*^|' f]|;  |  "q' 

3  determine,  except  so  far  as  any  interest  in  property  may  have  vested  R-  l.  154,  §  10. 

4  in  the  adopted  child,  and  a  decree  to  that  effect  shall  be  entered  on  the 

5  records  of  the  court. 

1  Section  11.     The  supreme  judicial  court  may  allow  a  parent,  who,  Appeals 

2  upon  a  petition  for  adoption,  had  no  personal  notice  of  the  proceedings  is59;oi. '§'2. ' 

3  before  the  decree,  to  appeal  therefrom  within  one  year  after  actual  notice  §59;  10. ' 

4  thereof,  if  he  first  makes  oath  that  he  was  not,  at  the  time  of  filing  such  Jlj^;  2I3;  |  }2: 

5  petition,  undergoing  imprisonment  as  specified  in  section  three,  or  that,  r.I.'iI&.Vu. 

6  if  so  imprisoned,  he  has  since  been  pardoned  on  the  ground  of  innocence  is*  iiass.  574. 

7  or  has  had  his  sentence  reversed. 

change  of  names. 

1  Section  12.     A  petition  for  the  change  of  name  of  a  person  may  be  Petitions  for 

2  heard  by  the  probate  court  in  the  county  where  the  petitioner  resides.  naml.°_° 

3  No  change  of  the  name  of  a  person,  except  upon  the  adoption  of  a  child  }|g4;  fj"'  ^  ^• 

4  under  this  chapter  or  upon  the  marriage  or  divorce  of  a  Moman,  shall  be  ^^j  ^j 'J^; 

5  lawful  unless  made  by  said  court  for  a  sufficient  reason  consistent  with  |- L.Y54.V12. 

6  public  interests. 


2260 


ADOPTION,   CHANGE   OF  N.\MES. 


[Ch.U'.   210. 


Notice  and 
certificate. 
1851,256,  §2. 
G.S.  110,  §  12. 
P.  S.  US,  §  13. 
R.  L.  154,  §  13. 


Section  13.     The  court  shall,  before  decreeing  a  change  of  name,  1 

require  public  notice  of  the  petition  to  be  given,  and  any  person  may  be  2 

heard  thereon.     It  shall  also  require  public  notice  to  be  given  of  the  3 

change  decreed,  and  on  return  of  proof  thereof  may  grant  a  certificate  4 

under  the  seal  of  the  court  of  the  name  which  the  person  is  to  bear,  which  5 

shall  thereafter  be  his  legal  name.  6 


otchalies!"'^        Section  14.     Each  register  of  probate  shall  annually,  in  December,     1 
aU'm'lu.  Diake  a  return  to  the  state  secretary  of  all  changes  of  names  made  in    2 

p.  S.  148,  §  14.    ]-,Js  court.  1897,  89.  R.  L.  154,  §  14.  3 


REFERENCES. 

§  2.  Duty  of  persons  receiving  child  for  adoption  to  notify  the  department  of  pub- 
lic welfare,  Chap.  119,  §  14. 

§  3.  Necessity  of  notifying  the  department  of  public  welfare  before  adopting  child 
from  an  institution,  Chap.  121,  §  IS. 

§  11.     Appeals  generally,  Chap.  215,  §§  9,  21. 

§  12.     Changes  of  names  in  divorce  cases.  Chap.  20S,  §  23. 


Ch.\p.  211. 


SUPREME  JUDICIAL  COURT. 


2261 


PART  III 


COURTS,  JUDICIAL  OFFICERS  AND  PROCEEDINGS  IN  CIVIL 

CASES. 


TITLE    I 


COURTS    AND   JUDICIAL   OFFICERS. 

(For  the  Land  Court  see  Chapter  185.) 

Chapter  211.  The  Supreme  Judicial  Court. 

Chapter  212.  The  Superior  Court. 

Chapter  213.  Provisions  Common  to  the  Supreme  Judicial  and  Superior  Courts. 

Chapter  214.  Equity  Jurisdiction   and  Procedure  in  the  Supreme    Judicial   and 

Superior  Courts. 

Chapter  21.5.  Probate  Courts. 

Chapter  216.  Courts  of  Insolvency. 

Chapter  217.  Judges  and  Registers  of  Probate  and  Insolvency. 

Chapter  218.  District  Courts. 

Chapter  219.  Trial  Justices. 

Chapter  220.  Courts  and  Naturalization. 

Chapter  221.  Clerks,  Attorneys  and  Other  Officers  of  Judicial  Courts. 

Chapter  222.  Justices  of  the  Peace,  Notaries  Public  and  Commissioners. 


CHAPTER    211. 

THE  SUPREME  JUDICIAL  COURT. 


Sect. 

1.  Number  of  justices. 

2.  Quorum. 

3.  Superintendence  of  inferior  courts. 

4.  Removal  of  certain  officers. 

5.  Questions  of  law  to  be  heard  by  full 

court. 

6.  Reservation  of  questions  of  law. 

7.  Law  questions,  when  argued. 

8.  Judgment  or  rescript  after  decision. 

9.  Contents  of  rescripts,  etc. 

10.  Frivolous  exceptions,  etc. 

11.  Late  entry  of  appeal. 

12.  Law  sitting  for  the  commonwealth. 

13.  Other  law  sittings. 


Sect. 

14.  Transfer  of  cases  by  full  court. 

15.  Hearings  in  capital  cases. 

16.  Hearings  in  Boston  of  questions  arising 

in  other  counties. 

17.  Jury  sittings. 

18.  Sittings  at  FaU  River. 

19.  Dukes  County  or  Nantucket  cases  to 

be  tried  in  Bristol. 

20.  Powers   of   justices   at   jurj-   and    law 

sittings. 

21.  Audit  of  accounts,  etc. 

22.  Salaries,  etc. 

23.  Clerical  assistance. 


1  Section  1,    The  supreme  judicial  court  shall  consist  of  one  chief  ?\^,f„^t'' °* 

2  justice  and  six  associate  justices. 


Decl.  of  Rights,  art.  29. 


justices. 


(Const.  Rev.  art.  29.) 
1699-1700,  3,  §  1. 
1780,  17. 
1782,9,  §  1. 


1799,  82.  §  1. 
1804,  105,  §  1. 
1823,  98. 
R.  S.  81,  I  1. 


1837,  78. 
1840,  87,  §  6. 
1S48,  9. 
1852,  127,  5  1. 


G.  S.  112,  §  1. 
1S73,  40. 
P.  S.  150,  §  1. 
R.  L.  15G,  §  1. 


2262 


SUPREME  JUDICLiL  COLTIT. 


[Chap.  211. 


Quorum. 
1699-1700, 
3.  §  1. 
1780.  17. 
1782,  9,  §  1. 


Section  2.  The  full  court  shall  be  the  supreme  judicial  court  in  1 
banc,  and  four  justices  shall  constitute  a  quorum  to  decide  all  matters  2 
required  to  be  heard  by  it.  3 


1800,  71,  §  1. 
R.  S  81,  §  11. 


1852,  127,  §  2. 
1859,  196,  §  39. 


G.  S.  112,  5  2. 
P.  S.  150,  §  2. 


1883,  223,  §  2. 
R.  L.  156,  §  2. 


Superintend- 
ence of  in- 
ferior courts. 
1782,  9,  §  2. 
R.  S.  81,§§4.  5. 
1859, 196,  §  38. 
G.  S.  112,  §  3. 
P.  S.  150.  §  3. 
R.  L.  156.  §  3. 
3  Gush.  212. 
8  Gush.  529. 
2  Allen,  463. 
102  Mass.  310. 


Section  3.     The  supreme  judicial  court  shall  have  general  superin-  1 

tendence  of  all  courts  of  inferior  jurisdiction  to  correct  and  prevent  2 

errors  and  abuses  therein  if  no  other  remedy  is  expressly  pro^^ded;  and  3 

it  may  issue  writs  of  error,  certiorari,  mandamus,  prohibition,  quo  war-  4 

ranto  and  all  other  ■UTits  and  processes  to  such  courts  and  to  corpora-  5 

tions  and  indi\'iduals  which  may  be  necessary  to  the  furtherance  of  6 

justice  and  to  the  regular  execution  of  the  laws.  7 


123  Mass.  418,460. 
127  Mass.  50.  254. 
163  Mass.  446. 


167  Mass.  123,  424. 
188  Mass.  443. 
197  Mass.  194. 


208  Mass.  528. 
222  Mass.  542. 


Removal  of 
certain  officers. 
1856,  173.  §  7. 
G.  S.  112.  §  4. 
1876,  209. 
P.  S.  150.  §  4. 
1897.  224. 
R.  L.  156.  §4. 
11  Gray.  206. 
1  Allen.  358. 


Section  4.     A  majority  of  the  justices  may,  if  in  their  judgment  the  1 

public  good  so  requires,  remove  from  ofBce  a  clerk  of  the  courts  or  of  2 

their  own  court;  and  if  sufficient  cause  is  shown  therefor  and  it  appears  3 

that  the  public  good  so  requires,  may,  upon  a  bill,  petition  or  other  4 

process,  upon  a  summary  hearing  or  otherwise,  remove  a  clerk  of  the  5 

superior  court  in  Suffolk  county,  or  of  a  district  court,  a  county  com-  6 

missioner,  sheriff,  register  of  probate  and  insolvency  or  district  attorney.  7 


Questions  of 
law  to  be 
heard  by  full 
court. 

1804,  105.  5  6. 
R.  S.  81.  §  13. 
G.  S.  112,  §5. 


Section  5.     Questions   of   law   arising   upon   exceptions   or   report,  1 

upon  appeals  from  the  superior  court,  upon  cases  stated  or  upon  special  2 

verdicts  and  all  issues  in  law,  except  as  otherwise  provided,  shall  be  3 

heard  and  determined  by  the  full  court.        p.  s.  iso,  §  7.        r.  l.  isb,  §  6.  4 


2  Met.  376. 
120  Mass.  86. 


137  Mass.  536. 
168  Mass.  297. 


170  Mass.  152. 
206  Mass.  408. 


215  Mass.  209. 
226  Mass.  430. 


Reser\'ation 
of  questions 
of  law. 

R.  S.  81.  §  26. 
G.S.  112,  §  10. 
P.  S.  150,  §  8. 
R.  L.  156.  §  7. 
6  Allen,  150. 
9  Allen,  159. 


Section  6.     Questions  of  law  arising  upon  a  trial  or  other  proceed-  1 

ing,  or  upon  a  motion  for  a  new  trial  by  reason  of  an  opinion,  direction,  2 

order  or  refusal  of  one  justice  in  matter  of  law,  may  be  reserved  for  the  3 

consideration  of  the  full  court,  and  so  much  of  the  case  as  is  necessary  -4 

for  imderstanding  the  question  shall  be  reported.  5 


144  Mass.  260. 
161  Mass.  46. 


187  Mass.  509,  516. 
200  Mass.  386. 


201  Mass.  248. 
225  Mass.  399. 


Law  questions, 
when  argued. 
1859,  196,  §  45. 
G.S.  112,  §  34. 
1864,  111,  §  1. 
P.  S.  150.  §  9. 
R.  L.  156,  §  8. 
115  Mass.  335. 


Section  7.  Questions  of  law  which  are  entered  upon  the  docket  of 
the  full  court  shall,  when  reached,  be  argued  in  their  order,  if  either 
party  is  ready,  unless  the  court  for  good  cause  sho^m  postpones  the 
argument.  But  no  party  shall  be  compelled  to  be  ready  for  argument 
within  ten  days  after  the  question  has  been  duly  reserved  of  record  in 
the  court  in  which  the  case  is  pending. 


Judgment  or 
rescript  after 
decision. 
1859, 196,  §  48. 
G.S.  112.  J  11. 
1866,  220. 
P.  S.  150,  §  12. 
R.  L.  156.  §  11. 
4  Gray,  572. 
il2AUen,  201. 
,109  Mass.  248. 
1 123  Mass.  418. 
124  Mass.  353. 
130  Mass.  201. 
133  Mass.  536. 


Section  8.     The  full  court  shall,  as  soon  as  may  be  after  the  decision  1 

of  the  questions  submitted  to  it,   make  and  enter  a  proper  order,  2 

direction,  judgment  or  decree  for  the  further  disposition  of  the  case,  or  3 

cause  a  rescript,  containing  a  brief  statement  of  the  grounds  and  reasons  4 

of  the  decision,  to  be  filed  therein;    or  it  may  by  a  writ  of  certiorari  5 

or  other  proper  process  remove  the  record  of  the  case,  or  order  it  to  be  G 

removed,  into  the  supreme  judicial  court,  there  enter  judgment,  and  7 

remand  the  record  to  the  court  from  which  it  was  removed  to  carry  8 

such  judgment  into  effect,  or  instead  thereof,  the  full  court  may  order  a  9 


Ch.\P.   211.]  SUPREME   JTJDICIAL  COURT.  2263 

10  new  trial  or  further  proceedings  at  the  bar  of  the  supreme  judicial  court, 

1 1  or  order  sentence  to  be  awarded  or  execution  issued  in  said  court. 

1  Section  9.     The  records  and   rescripts  which   are  made  after  the  Contents  of 

2  decision  of  questions  of  law  shall  contain  a  brief  statement  of  the  issgl'ige.^fis. 

3  reasons  therefor;  and  if  no  further  opinion  is  written  within  sixty  days,  ?; |;  iso,' |  if.' 

4  the  reporter  shall  publish  the  case  with  the  opinion  contained  in  such  RLise,  §12. 

5  record  or  rescript. 

1  Section  10.     If,  upon  the  hearing  of  an  appeal  or  exceptions  in  any  Frivolous  ex- 

2  proceeding,  it  appears  that  the  appeal  or  exceptions  are  frivolous,  im-  iIIoTtq!  1*5. 

3  material  or  intended  for  delay,  the  court  may,  either  upon  motion  of  a  |'2,^§?6.'^^'" 

4  party  or  of  its  own  motion,  award  against  the  appellant  or  excepting  psUo'tu' 

5  party  double  costs  from  the  time  when  the  appeal  was  taken  or  the  jf *l' iss  t  la' 

6  exceptions  were  allowed,  and  also  interest  from  the  same  time  at  the  2Cush.  465. 

7  rate  of  twelve  per  cent  a  year  on  any  amount  which  has  been  found  13  Gray,  91! 
S  due  for  debt  and  damages,  or  which  he  has  been  ordered  to  pay,  or  for  120  Mass!  21s, 
9  which  judgment  has  been  recovered  against  him,  or  may  award  any  ?2}Mass. sse. 

10  part  of  such  additional  costs  and  interest. 

126  Mass.  21.  181  Mass.  120.  .208  Mass.  270. 

130  Mass.  265.  182  Mass.  439.  210  Mass.  346. 

158  Mass.  590.  192  Mass.  147.  225  Mass.  231. 

1  Section  11.     If,  by  mistake  or  accident,  an  appeal  from  the  superior  Late  entry 

2  court  or  a  bill  of  exceptions  which  has  been  allowed  by  the  supreme  miAiU  i. 

3  judicial  court  or  the  superior  court  is  not  duly  entered  in  the  full  court,  §§'34^37, 

4  that  court,  upon  petition  filed  within  one  year  after  the  appeal  or  bill  pfisolJJ' 

5  of  exceptions  should  have  been  entered,  and  upon  terms,  may  allow  the  ? \KH'ij^  ^■'• 

6  appellant  to  enter  his  appeal  or  the  excepting  party  to  enter  his  bill  of  iiV  Mass.  279. 

7  exceptions.     But  no  security  by  bond,  attachment  or  otherwise  which 

8  has  been  discharged  by  the  omission  to  enter  an  appeal  or  bill  of  excep- 

9  tions  shall  be  revived  or  continued  in  force  by  the  entry  thereof. 

1  Section  12.     A  law  sitting  of  the  court  for  the  commonwealth  shall  Lawsitting 

^  lor  tne  com,- 

2  be  held  annually  at  Boston  on  the  first  Wednesday  of  January  and  may  monweaith 

,  ,.  ,|  ,.  i.  ,,'  IP   1S59,  196.  §  36. 

3  be  adjourned  to  places  and  times  most  conducive  to  the  despatch  or  o.s.  112,  §26; 

4  business  and  to  the  interests  of  the  public.    At  such  sitting,  questions  p. s.iso,  § 30; 

5  of  law  arising  in  the  counties  of  Barnstable,  Essex,  Middlesex,  Norfolk,  r.^.^sc,  §  15. 

6  Plymouth  and  Suffolk,  and,  by  consent  of  the  parties  filed  in  the  case,  ig^slforfu. 

7  such  questions  arising  in  other  counties,  and  such  questions  for  which 

8  no  other  provision  is  made,  shall  be  entered  and  determined. 

1  Section  13.     For  hearing  questions  of  law  arising  in  the  following  other  Uw 

2  counties,  law  sittings  shall  be  held  once  in  each  year  in  September  and  mi.^g',  §  1. 

3  October  at  such  times  as  the  court  shall  by  rule  determine:  isoo!7i',|^2".'^' 

1803.39.  R.  S.  81.§50,  R.  L.  156,  §  16. 

1804.  105,  §§  2,  3.  1859,  196,  §  36.  1903,  54,  §  2, 

1820,  14,  §§  1.  6.  G.S.  112,  §27.  1915,  107,  §  2. 

1828,  2.  P.  S.  150,  §  31.  1920,  386. 

4  For  Berkshire,  at  Pittsfield.  Berkshire. 

1861,99,  §  1. 
1868,  325,  §  1.  X       ,    !,.  i,    . 

5  For  Franklin  and  Hampshire,  alternately  at  Greenfield  and  North-  Franiiiinand 

6  ampton,  the  sitting  at  Northampton  being  in  the  even  year.  i86T,'99.'Y2. 

7  For  Hampden,  at  Springfield.  Hampden. 

8  For  Worcester,  at  Worcester.  JIsFw"' 

9  For  Bristol,  Dukes  County  and  Nantucket,  at  Taunton.  Bristol,  Dukes 

1861. 206.  1S77, 178,  §  3.  1891, 287.  §  1.  NantickS'' 


2264 


SUPREME  JUDICLiL  COURT. 


[CH-VP.   211. 


Provided,  that  when  no  case  has  been  set  down  for  oral  argument  at  10 

least  two  weeks  before  the  day  determined  for  any  one  of  the  said  sittings,  1 1 

the  sitting  may  be  omitted;  and  if  only  one  case  shall  have  been  set  12 

down  for  oral  argument,  that  case  may  be  transferred  to  any  other  of  13 

said  sittings  which  may  be  most  accessible  and  convenient  for  the  parties,  14 

or  to  a  sitting  for  the  commonwealth  if  the  parties  so  agree.  15 


Transfer  of 

cases  by  full 

court. 

1892,  127. 

E.  L.  156.  I  17. 

1920.  3S0. 

162  Mass.  90. 


Section  14.     The  full  court  sitting  in  any  cou'iity,  or  for  the  com-  1 

monwealth,  shall  have  jurisdiction  of  all  questions  of  law  and  of  all  2 

cases  and  matters  at  law  or  in  equity,  civil  or  criminal,  wliich  arise  3 

in  any  county  other  than  that  in  or  for  wliich  it  is  sitting,  and  which  4 

might  properly  be  heard  and  determined  by  it  sitting  for  such  county;  5 

and,  upon  the  application  of  a  party,  the  full  court  may  order  any  such  6 

questions  of  law,  or  case  or  matter,  to  be  entered  and  determined  by  7 

the  full  court  sitting  in  any  county,  or  for  the  commonwealth.  8 


rapltSrases.  Section  15.     Exceptions  alleged  at  the  trial  of  a  capital  case  in  any 

Wi'im'iio  county  may  be  entered  and  determined  eitlier  at  the  law  sitting  of  the 

1894'  204'  ^  ^'  s'^'Pi'^^s  judicial  court  held  for  the  county  in  whicli  they  arise,  or,  upon 

R.  l!  isei  §  IS.  the  order  of  the  justice  presiding  at  the  trial,  at  the  sitting  of  the  court 

162  Mass.  90.       n        ,,  i.,.i_ 

lor  the  commonwealth. 


Hearings  in 
Boston  of 
questions  aris- 
ing in  other 
counties. 
1859,  196,  §  36. 
G.S.  115,  §  13. 
P.  S.  153,  §  16. 
R.  L.  156.  §  19. 
1903,54.  §2. 
1915.  107.  §  2. 
162  Mass.  90. 


Section  16.  If  the  justice  before  whom  an  action  or  proceeding  is  1 
tried  in  the  supreme  judicial  court  or  the  superior  court  in  counties  2 
other  than  Barnstable,  Essex,  Middlesex,  Norfolk,  Plymouth  or  Suf-  3 
folk  considers  that  a  question  of  law  which  arises  for  the  determination  4 
of  the  full  court  is  immaterial,  frivolous,  or  intended  merely  for  delay,  5 
or  that  the  interests  of  the  parties  or  of  the  public  require  a  more  speedy  6 
determination  thereof  than  can  be  reached  in  the  sitting  established  7 
for  the  county  in  which  the  action  or  proceeding  is  tried,  he  shall  so  8 
certify  and  order  the  question  of  law  to  be  entered  and  heard  at  the  9 
sitting  of  the  court  for  the  commonwealth;  and  all  the  other  proceedings  10 
shall  be  the  same  as  if  the  question  had  arisen  in  one  of  the  above  named  11 
counties.  12 


Jury  sittings. 
1782,9.  §  1. 
1799, 82,  §5  2. 3. 
1800,  71.  §  2. 
1802.  39. 
1804,  105, 
§§  2.  3. 


Barnstable. 

Berkshire. 
1868, 325.  §  1. 
Bristol,^  Dukes 
County*  and 
Nantucket. 
1.827,  135.  §  1. 
1860,  210. 
Esses. 

1860.  210.  §  1. 
1870,  351. 
Franklin. 
1860.  57.  §  1. 
Hampden. 
Hampshire. 


Section  17.     Jury  sittings  of  the  court  shall  be  held  by  one  justice,  1 

who  shall  have  all  the  powers  not  expressly  reserved  to  the  full  court.  2 

If  there  are  pending  before  the  court  in  the  respective  counties  mat-  3 

ters  requiring  trial  by  jury,  such  sittings  shall  be  held  as  follows:  4 

1820,  14,  §§1.6.  1S59.  196,  §  56.  P.  S.  150.  |  32. 

R.  L.  156,  §  21. 


1828.  2. 

R.  S.  81.  I  59. 


G.  S.  112,  §  28. 


For  Barnstable,  at  Barnstable,  on  the  first  Tuesday  of  May. 

For  Berkshire,  at  Pittsfield,  on  the  second  Tuestlay  of  IVIay. 

For  Bristol,  Dukes  County  and  Nantucket,  at  Taunton,  on  the  third 
Tuesday  of  April,  and  at  New  Bedford,  on  the  second  Tuesday  of 
November.  i877.  i7s,  §  3.  is78.  i5i,  1 1. 

For  Essex,  at  Salem,  on  the  third  Tuesday  of  April  and  the  first  Tues- 
day of  November. 

For  Franklin,  at  Greenfield,  on  the  second  Tuesday  of  April. 

For  Hampden,  at  Springfield,  on  the  fourth  Tuesday  of  April. 

For  Hampshu-e,  at  Northampton,  on  the  third  Tuesday  of  April. 


5 

G 

7 

8 

9 

10 

11 

12 

13 

14 


CH-VP.   211.]  SUPREME   JUDICIAL  COURT.  2265 

15  For  Middlesex,  at  Lowell,  on  the  third  Tuesday  of  April,  and  at  Cam-  Middlesex. 

16  bridge,  on  the  third  Tuesday  of  October.  ^^^°'  ^"'  ^  '• 

1837,  89,  §2.  1S60,  57,  §  2;210,  §  1. 

17  For  Norfolk,  at  Dedham,  on  the  third  Tuesday  of  February.  Norfolk. 

18  For  Plymouth,  at  Plymouth,  on  the  second  Tuesday  of  May.  is6"°57"\  3 

19  For  Suffolk,  at  Boston,  on  the  first  Tuesday  of  April,  and  the  second  Suffolk.' 

20  Tuesday  of  September.  ^^^i- 1*^*- 

21  For  Worcester,  at  Worcester,  on  the  second  Tuesday  of  April.  iss"^!?"' 

1  Section  18.     If  the  public  business  so  requires,  the  court  may  ad-  fan^fveJ 

2  journ  an  established  sitting  for  the  county  of  Bristol  from  either  Taun-  p^^i'^°Q'^si 

3  ton  or  New  Bedford  to  Fall  River,  in  the  manner  and  with  the  effect  of  ^-  l-  ise.  §  22. 

4  an  adjournment  to  another  shire  town;   and  such  adjournment  shall  be 

5  subject  to  all  the  provisions  of  law  relative  to  adjournments  to  another 

6  shire  town. 

1  Section  19.     An  action,  suit  or  proceeding  arising  or  pending  in  the  Dukes  County 

2  county  of  Dukes  or  Nantucket,  which  is  cognizable  by  the  supreme  cLes^tobe^*' 

3  judicial  court  and  which  is  to  be  heard  before  one  justice,  shall  be  BrStof 

4  entered,  heard,  tried  and  determined  at  the  court  held  in  the  county  of  §■  |  f Jo^^^fo 

5  Bristol,  in  all  respects  as  if  the  same  com-t  were  held  in  the  county  of  J^'  ^^f  |  f 

6  Dukes  or  Nantucket,  as  the  case  mav  be;  and  all  matters  cognizable  bv  P-  s.'i5o,'§  35. 

7  the  full  court  arising  or  pending  in  the  county  of  Dukes  or  Nantucket 

8  shall  be  heard  and  determined  as  if  arising  in  the  county  of  Bristol. 


1  Section  20.     Four  or  more  justices  present  at  a  jiu^-  sitting  shall  ^'sticesat 

2  have  the  powers  of  a  full  court.    One  justice  present  at  a  law  sitting  '^^^y  ^"^  '=''' 

3  shall  have  the  same  authority  as  at  a  jury  sitting.  R.  s.  si,  §  3S. 

1S59,  196,  §  39.  G.S.  112,  §18.  P.  S.  150,  §  36.  R.  L.  156,  §  24. 

1  Section  21.     The  full  court,   sitting  for  the  commonwealth,   shall  e'^oun^"'^^''' 

2  examine  and  audit  all  accounts  for  services  and  expenses  incident  to  S  |•J-r|o|■ 
3  said  court,  and  they  shall  be  paid  by  the  commonwealth.  R.  l.  ise,  §  25. 

1  Section  22.     The  chief  justice  of  the  court  shall  receive  a  salary  of  Deci"of' ^*'^' 

2  twelve  thousand  five  hundred  dollars,  and  each  associate  justice  a  salary  Jl'fJ;'|'  ^^^-  ^^■ 

3  of  twelve  thousand  dollars,  and  the  chief  justice  and  each  associate  justice  i"8?!  4t. 

4  shall  annually  receive  from  the  commonwealth,  upon  the  certificate  of  isog^is. 

5  the  chief  justice,  the  amount  of  the  expenses  incurred  by  them  in  the  is43,a 

6  discharge  of  their  duties;    pro\'ided,  that  any  chief  justice  or  justice  Jfsa.'fo." 

7  appointed  before  June  fourth,  nineteen  hundred  and  twenty,  wlio  has  ^gg|-  46^5^i*°' 

8  not  accepted  the  increase  in  salary  pro\ided  by  chapter  six  hundred  and  ]?^^'-}^-^  39 

9  twentv-seven  of  the  acts  of  nineteen  hundred  and  twenty  shall  receive  isss,  274,  §  1." 
10  annually  two  thousand  dollars  less  than  the  salaries  above  provided  for.  1900',  335;  §  1. 

R.  L.  156,  §  26.  1911,  743,  §  1.  1919,  288.  §  1.  1920,  627,  §§  1,  4,  6. 

1  Section  23.     The  justices  of  the  court  shall  be  allowed  annually  not  clerical 

2  more  than  four  thousand  dollars  for  clerical  assistance,  which  shall  be  is9i,  si.  ' 

3  paid  by  the  commonwealth  upon  the  certificate  of  the  chief  justice.  rJui  eig.   ^^' 


2266 


SUPERIOR  COURT. 


[Chap.  212. 


CHAPTER    212. 

THE  SUPERIOR  COURT. 


Sect. 


10. 
11. 
12. 

13. 
14. 
15. 
16. 


Number  of  justices. 
Court,  how  held. 
Exclusive  jurisdiction. 
Concurrent  jurisdiction. 
Appellate  cIntI  jurisdiction. 
Criminal  jurisdiction. 
Transmission  of  indictment. 
Security  to  stand  upon  appeal. 
Decrees  of  supreme  judicial  court  to  be 

recorded. 
Judgment  final  by  agreement. 
Transmission  of  papers. 
Affirmation   of   judgment    of     district 

court  upon  non-entrj'  of  appeal. 
Late  entry  of  appeal. 
Sittings  of  court. 
Jury  sessions  in  Suffolk. 
Speedy  trials  in  Suffolk. 


Sect. 

17.  Adjounmient  to  place  other  than  shire 

town. 

18.  Special  adjourned   criminal  session   at 

Brockton. 

19.  Clerk's  office. 

20.  Separation  of  civil  and  criminal  busi- 

ness, except  as  to  jurors. 

21.  Special  sittings  for  criminal  business. 

22.  Return  day  in  criminal  cases. 

23.  Assembling  of  grand  jury. 

24.  Precedence  of  certain  prosecutions. 

25.  Extension  of  sitting. 

26.  Custody  of  records. 

27.  Salaries,  etc. 

28.  Miscellaneous  expenses. 

29.  Speedy  trial  of  persons  held  in  jail  in 

default  of  bail. 


1S20,  79,  §  2. 


Section  1.    The  superior  court  shall  consist  of  one  chief  justice  and     1 


Number  of 
justices. 

1799, 81. 1 1.     twenty-seven  associate  justices. 

1S45,  155.  G.  S.  114.  §  1, 

1851,  330,  5  1.  1S75,  230. 

1855,  449,  §  1.  P.  S.  152,  §  1. 

1859,  196,  §  7.  1886,  31. 


R.  S.  82,  §  1;  S6,  §1. 

1888,  58. 
1892,271. 
1896,  526. 
R.  L.  157,  §  1. 


1S43,  7,  §  4. 

1902,  383. 

1903,  472,  §  2. 
1907,  286. 
1911,  567. 


Coiu^,  how 
held. 

1820,  79,  §  1. 
R.  S.  82,  §  32. 
G.  S.  114,  §  2. 
P.  S.  152.  §  2. 
R.  L.  157.  §  2. 
1910,  555,  §  1. 
227  Mass.  598. 


Section  2.  The  court  shall  be  held  by  one  of  the  justices,  and  when 
so  held  shall  have  and  exercise  all  the  power  and  jurisdiction  committed 
to  said  court.  The  chief  justice  shall  make  such  assignments  for  the  at- 
tendance of  a  justice  at  the  several  times  and  places  appointed  for  hold- 
ing the  court  as  will  be  most  convenient  and  as  will  insure  the  prompt 
performance  of  its  duties. 


^risdfctk>n  Section  3.     The  court  shall  have  exclusive  original  jurisdiction  of 

1820.79, 1  i.  actions  of  contract,  tort  and  replevin,  except  those  of  which  other  courts 

1840, 87,  §§  i,  2.  have  concurrent  original  jurisdiction,  of  libels  for  divorce  or  for  affirming 

1855!  449, 1 3.  or  annulling  marriage,  of  writs  of  entry  for  the  foreclosure  of  mortgages, 

G.a'ii4,'^  ^'  and  of  real  and  mixed  actions,  except  those  of  which  the  land  court  or 

1879, 255,  §  1.  district  courts  have  jurisdiction,  of  complaints  for  flowing  lands,  and  of 

1880, 28.  claims  against  the  commonwealth.  p.  s.  152,  §§  3, 4.  iss7, 332,  §  1. 

R.  L.  157,  §  3.  1917,326.  10  Allen,  420.  218  Maas.  463. 


Concurrent           Section  4.    The  court  shall  have  original  jurisdiction  of  all  civil     1 

jurisdiction.                                                                                       .,,                               i                       i-  '-in 

R._s.s2.§4  actions,   except  those  of  wluch  other  coiuts  have  exclusive  original     2 

18do,  449,  §  3.  ,       ,     ,,       .             ^  o 

1859, 196,  §1.  jurisdiction.                                          g.  s.  iii,  §§3,4.  6 


p.  S.  152.  §§3,4. 


R.  L.  157, 


;3,  4. 


1917,  326. 


Appellate  civil 
jurisdiction. 
1820.79,5  1. 
R.  S.  82.  I  3. 
1859,  196,  I  5. 


Section  5.  The  court  shall  have  jurisdiction  of  all  civil  actions  1 
and  proceedings  which  are  legally  brought  before  it  by  appeal  or  2 
removal.  g.s.  114,  §5.  3 


p.  S.  152,  §  5. 
1887,  332,  §  3. 


1890,  127.  §  1. 
1898,  562,  I  14. 


1899, 131.  5  2. 
R.  L.  157.  §  6. 


Chap.  212.]  superior  court.  2267 

1  Section  6.    The  court  shall  have  original  jurisdiction  of  all  crimes,  Criminal  juris- 

2  and  appellate  jurisdiction  of  crimes  tried  before  a  district  court  or  a  trial  1799,  si.  5 1. 

3  justice.    Crimes  committed  in  that  part  of  Scituate  described  in  chapter  Ifi^',  133  ^' 

4  three  hundred  and  ninety-four  of  the  acts  of  nineteen  hundred  and  twelve  Hlo',  Ho,  | }; 

5  shall  be  within  the  territorial  jurisdiction  of  the  court  both  in  Norfolk  H^jlg:^^^' 

6  county  and  in  Plymouth  county,  and  arrests  and  ser\ice  of  process  in  |^^|  *• 

7  such  cases  may  be  made  by  an  officer  qualified  to  serve  criminal  process  i855;449,  §  3. 

8  in  Cohasset.    Crimes  committed  in  any  part  of  Cambridge,  Watertown  o.  s.'ii2,'§5; 

9  or  Newton  Ij-'ing  in  the  Charles  river  basin  shall  be  ■within  the  territorial  p.  s.  156,  §  s; 
10  jurisdiction  of  the  court  both  in  IMiddlesex  county  and  in  Suffolk  county.  1891^379,  §  1. 

R.  L.  157,  §  7.       1909,  524,  §  9.       1912,  394,  §  1.       235  Mass.  3S3. 

1  Section  7.     The  clerk  of  the  courts  for  the  county  in  which  an  in-  Transmission 

2  dictment  for  a  capital  crime  has  been  entered,  or,  in  the  county  of  isog,  4'33?™2" 

3  Suffolk,  the  clerk  of  the  superior  court  for  criminal  business,  shall  forth-  fggi'.STg'.Va* 

4  with  send  notice  thereof,  with  a  copy  of  the  indictment,  to  the  chief  or  ^-  ^-  ^^'''  ^  ^• 

5  first  justice  of  the  court  and  to  the  attorney  general.     Any  justice  of 

6  said  coiu-t  may  thereupon  appoint  a  time  for  the  arraignment  of  the 

7  prisoner,  which  shall  take  place  either  at  a  regular  sitting  or  on  a  day 

8  specially  assigned  therefor. 

1  Section  8.     If  an  appeal  or  a  bill  of  exceptions  in  a  case,  civil  or  Security  to 

2  criminal,  has  been  duly  entered  in  the  supreme  judicial  court,  any  se-  appeal"''" 

3  curity  taken  in  the  case,  by  bond,  attachment  or  otherwise,  shall  stand  is5l'.^9'6;§'3i. 

4  as  if  no  judgment  had  been  rendered  or  exception  taken  in  the  superior  p;  |;  1,52,' 1 12.' 

5  court,  until  final  judgment  shall  be  entered,  unless,  in  the  case  of  a  bill  ^-  ^- 1^^-  ^  ^^■ 

6  of  exceptions,  execution  is  awarded  because  the  exceptions  are  im- 

7  material,  frivolous  or  intended  for  delay. 

1  Section  9.     Orders  or  decrees  of  the  supreme  judicial  court  upon  Decrees  of 

2  questions  arising  in  a  case  pending  in  the  superior  court  shall  be  entered  ciai^™irt  to " 

3  of  record  in  the  superior  court,  and  such  case  shall  be  disposed  of  as  g^ s!Ti4,^§i2. 

4  law  and  justice  require,  conformably  to  the  rescript  or  order  of  the  r'.i;.\?7',Vi9. 

5  supreme  judicial  court.  103  Mass.  425.  124  Mass.  353. 

1  Section  10.     Parties  to  an  action  submitted  to  the  determination  of  gnaf  by"' 

2  the  court  may  agree  that  the  judgment  therein  shall  be  final.  agreement. 

R.  S.  82,  §  11.  G.  S.  114,  5  13.  P.  S.  152,  §  14.  R.  L.  157.  §  20. 

1  Section  11.    The  clerk,  at  the  expense  of  the  appellant  or  excepting  Transmission 

2  party,  or,  upon  a  case  reserved  or  reported  at  the  expense  of  the  plaintiff  issg.^ige, 

3  or  of  the  party  at  whose  request  it  is  reserved  or  reported,  or  in  a  crimi-  g  s'^'ih'.  §  i4. 

4  nal  case  at  the  expense  of  the  commonwealth,  shall  prepare  and  transmit  R.L.^s'f.VzL 

5  to  the  supreme  judicial  court  for  the  proper  county  one  copy  of  every  gg^Ma^sg^no^^' 

6  paper  on  file  in  the  case,  except  papers  used  in  evidence  only,  and  of  pj  'JJ*^^-  ^ji- 

7  all  papers  made  part  of  the  case  or  referred  to  in  the  bill  of  exceptions  zsii  Mass.'  3261 

8  or  report,  or  so  much  thereof  as  is  necessary  fully  to  present  the  question 

9  of  law,  for  the  use  of  the  chief  justice,  and  a  like  copy  for  the  clerk  of 

10  the  supreme  judicial  court,  Mhich  shall  be  kept  on  file  in  said  court; 

11  and  one  copy  of  the  bill  of  exceptions,  report  or  papers  upon  which  the 

12  question  of  law  arises  on  appeal  for  each  associate  justice,  for  each 

13  party  and  for  the  reporter  of  decisions.     Original  papers  used  in  the 

14  trial,  which  are  needed  in  the  supreme  judicial  court,  shall  be  trans- 


2268 


SUPERIOR   COURT. 


[Chap.  212. 


mitted  to  its  clerk  to  be  kept  on  file  by  him  until  the  rescript  in  such  15 
action  is  sent.  The  e>cpense  of  such  copies  and  transmission  shall  be  16 
taxed  in  the  bill  of  costs  of  the  prevailing  party,  if  he  has  paid  it.  17 


AfBrmation  of 
judgment  of 
district 
court  upon 
non-entry  of 
appeal- 
1783,  42.  5  6. 
R.  S.  85,  §  15. 
G.  S.  120,  §  27. 


Section  12.     If,  upon  an  appeal  in  a  civil  action  or  proceeding  from  1 

a  judgment  of  a  district  court,  the  appellant  fails  to  enter  and  prose-  2 

cute  his  appeal,  the  court  may,  upon  complaint  of  the  appellee,  affirm  3 

the  former  judgment  or  render  such  other  judgment  as  law  and  justice  4 

require.  p-  s.  155,  §  34.  5 


1S93,  396,  §  30. 
R.  L.  157,  §  22. 


1917.  326. 
117  Mass.  279. 


118  Mass.  418. 
171  Mass.  444. 


207  Mass.  437. 
216  Mass.  113. 


Late  entry  of 

appeal. 

1791,  17. 

R.  S.  82,  §§21- 

24. 

G.  S.  114,  §  15. 

P.  S.  152,  §  16. 

R.  L.  157,  §  23. 

117  Mass.  279. 

207  Mass.  437. 

216  Mass.  113. 


Section  13.     If,  by  mistake  or  accident,  an  appeal  to  the  superior  1 

court  is  not  duly  entered  therein,  or  if,  for  a  like  reason,  a  complaint  2 

founded  on  an  omission  to  enter  an  appeal  has  not  been  entered  by  the  3 

appellee,  the  court,  upon  petition  filed  within  one  year  after  the  appeal  4 

or  complaint  should  have  been  entered,  may  upon  terms  allow  the  ap-  5 

peal  or  complaint  to  be  entered;  but  attachments  made  and  seciu-ity  6 

given  in  the  original  action  shall  not  thereby  be  revived  or  continued  7 

in  force.  8 


sittings  of 
court. 
1799,81,  I  1. 


Section  14.     Sittings  of  the  court  in  the  several  counties  shall  be     1 
held  as  follows:  r.  s.  82,  §§40,41 ;  S6,§  i.  2 


18.55,  449,  §  7. 
1S59,  196,  I  10. 


G.  S.  114, 
P.  S.  1.52,  i 


16. 

17. 


R.  L.  157,  §  24. 
183  Mass.  199. 


Barnstable. 
1833,51. 
1S69,  354. 

Berkshire. 
1850,  258. 
1868,  325,  §  1. 
1871,  84. 
1904,  38. 

Bristol. 

1827,  135,  §  2. 

1878.  95. 

1888,314, 

§§1,3. 

1891,  287,  §  2. 

1S99,  140. 


Dukes  County. 
1825,  107,  §  2. 
1827,  18. 

Essex. 
1839, 150. 
1849,  39. 
1852,  288. 
1860,  62. 
1870,  315. 
1885,  191,  §  1. 
1889,461. 
1896,  412. 


Franklin. 
1831,44. 
1889,  327. 

Hampden. 
1830,  40. 

1844,  171. 

1845,  253. 
1849,  53, 
1868,  250. 
1885,  27. 


Hampshire. 
1846,  193. 
1852,  114. 


For  Barnstable,  at  Barnstable,  the  first  Monday  of  April  and  the  3 
second  Monday  of  October.  i89i,  175.  isoq,  271.  1902. 456,  §  2.  4 

For  Berkshire,  at  Pittsfield,  for  civil  business,  the  first  Mondays  of  5 
April  and  October;  for  criminal  business,  the  second  Mondays  of  6 
January  and  July.  7 

For  Bristol,  for  civil  business,  at  Taunton,  the  first  Monday  of  8 
March  and  the  second  INIonday  of  September,  and  at  New  Bedford,  9 
the  first  IVIondays  of  May  and  December;  for  criminal  business,  at  10 
Taunton,  the  first  Monday  of  February,  at  New  Bedford,  the  first  11 
Monday  of  June,  and  at  Fall  River,  the  first  IMonday  of  No^-ember.  12 

For  Dukes  County,  at  Edgartown,  the  last  Tuesdays  of  April  and  13 
September.  1833, 51.  1874, 34.  i8S9, 308.  14 

For  Essex,  for  civil  business,  at  Salem,  the  first  IVIondays  of  June  15 
and  December;  at  LawTcnce,  the  first  Monday  of  INIarch;  and  at  New-  16 
burj-port,  the  first  Monday  of  October;  for  criminal  business,  at  Salem,  17 
the  second  Monday  of  January;  at  Newbur;^^ort,  the  second  Monday  18 
of  May;  and  at  Lawrence,  the  second  Monday  of  September.  19 


1911,430. 


1917.88. 


For  Franklin,  at  Greenfield,  the  second  Mondays  of  March,  July  and  20 
November.  isos,  355.  21 

For  Hampden,  at  Springfield,  for  civil  business,  the  first  Monday  of  22 
]\Iarch,  the  second  INIonday  of  June  and  the  fourth  INIonday  of  October;  23 
for  criminal  business,  the  first  Monday  of  May,  the  second  INIonday  of  24 
September  and  the  third  Monday  of  December.  25 

1904,  144.  1907,  26. 

For  Hampshire,  at  Northampton,  the  third  Monday  of  February,  the  26 
first  Monday  of  June  and  the  third  Monday  of  October.  27 


Ch.\P.  212.]  SUPERIOR  COURT.  2269 

28  For  Middlesex,  for  ci\'il  business,  at  Lowell,  the  first  Mondays  of  ^sij'8'^'l7|''- 

29  April  and  October,  and  at  Cambridge,  the  first  Monday  of  January;  isst^so.  §2. 

30  for  criminal  business,  at  Cambridge,  the  first  Mondays  of  January,  i84i!iii: 

31  June  and  November,  and  at  Lowell,  the  first  Monday  of  March  and  the  i867!226,  §  2. 

32  Tuesday  after  the  first  Monday  of  September.  ists,  9. 

1S92,  391.  190:.  162.  1903,  97.  1909,  197. 

33  For  Nantucket,  at  Nantucket,  on  the  first  Tuesdays  of  July  and  f825'To?*§  i 

34  October.  isss,  51.  is78. 100. 

35  For  Norfolk,  at  Dedham,  for  civil  business,  the  first  Mondays  of  ^^^"loo 

36  January,  May  and  October;  for  criminal  business,  the  first  IMondays  of  issg]  2S7! 

37  April,  September  and  December. 

38  For  Plymouth,  at  Plymouth,  for  criminal  business,  the  first  Mondays  Plymouth. 

39  of  February,  June  and  October;    for  civil  business,  at  Plymouth,  the  is82,' 215,  §  a. 

40  second  IMondays  of  March  and  September,  and  at  Brockton,  the  first  Hil]  fog.^  ^' 

41  Mondaj's  of  April  and  November. 

42  For  Suffolk,   at   Boston,   for  civil   business,   the  first  IMondays   of  f9^2°,'456, 5 1. 

43  January,  April,  July  and  October;   for  criminal  business,  the  first  Mon-  107  Mass.  209. 

44  day  of  every  month. 

45  For  Worcester,  for  civil  business,  at  Worcester,  the  first  Monday  of  ^^g"*"!^]"" 

46  March  and  the  second  ^londay  of  December,  and  at  Fitchburg,  the  i894!i69; 

47  first   Mondays    of   June    and    November;     for    criminal    business,    at 

48  Worcester,  the  third  Monday  of  January,  the  second  IMonday  of  May 

49  and  the  third  Monday  of  October,  and  at  Fitchburg,  the  third  Monday 

50  of  August. 

1  Section  15.     The  court  shall  hold  in  Suffolk  county  each  month,  jm-y  sessions 

2  except  July,  August  and  September,  seven  jury  sessions  for  the  trial  of  'i903"^'72,'§  1. 

3  civil  causes. 

1  Section  16.     The  court  shall,  except  in  July,  August  and  September,  Speedy  trials 

2  hold  a  separate  and  continuous  session,  so  far  as  is  practicable,  in  Suffolk  )[8l4"^83;'547. 

3  county  for  the  speedy  trial  of  causes  advanced  for  speedy  trial  according  ^^l[  jj^;  §  35. 

4  to  law,  of  causes  entered  in  said  court  on  appeal,  or  on  removal  from  the  ^^^^'  ^^^'  ^  ■*• 

5  municipal  court  of  the  city  of  Boston,  of  actions  of  contract  originally 

6  commenced  in  the  superior  court  in  which  the  amount  demanded  does 

7  not  exceed  two  thousand  dollars,  and,  upon  the  application  of  either 

8  party,  of  actions  in  which  a  new  trial  by  jury  has  been  granted  or  an 

9  auditor's  report  has  been  filed,  and  of  all  other  cases  in  which,  in  the 

10  opinion  of  a  justice  of  said  court,  substantial  justice  and  relief  require  a 

11  speedy  trial.    A  trial  list  of  such  cases  shall  be  made  every  month. 

1  Section  17.     The  court  may   adjourn  any  established  sitting  for  Adjournment 

2  Bristol  county  from  Taunton  or  New  Bedford  to  Fall  River,  or  for  tha''nX°e"""" 

3  Plymouth  county  from  Plymouth  to  Brockton,  and  for  the  hearing  of  is77;68. 

4  jury  waived  cases  may  adjourn  any  established  sitting  for  Essex  county  p^'^'j*!,  ^  jg 

5  from  Salem,  Lawrence  or  Newburyport  to  Haverhill,  in  the  manner  and  isso.  134. 

6  with  the  effect  of  an  adjournment  to  another  shire  town;   and  such  ad-  h."l!  157!  §27. 

7  journment  shall  be  subject  to  all  laws  relative  thereto. 

1  Section  18.     An  adjourned  sitting  of  each  criminal  term  of  the  court  special  ad; 

2  for  Plymouth  county  shall  be  held  at  Brockton,  for  the  hearing  and  nai  session  at 

3  disposition  of  such  criminal  cases  on  the  trial  list  as  have  arisen  within  igTs,  ils'. 


2270 


SUPERIOR  COURT. 


[Chap.  212. 


the  judicial  district  of  the  poHce  court  of  Brockton  or  within  the  towns  4 

of  Whitman,  Abington  and  Rockland,  where  the  defendants  are  not  in  5 

confinement  awaiting  trial.  6 

S!?'i56®'^'         Section  19.     The  clerks  of  the  courts,  and  in  Suffolk  county  of  the  1 

superior  court,  may  maintain  regularly  established  offices  in  such  cities  2 

and  towns  as  may  be  designated  by  the  chief  justice  of  the  superior  3 

court.  4 


Separation  of 
civil  and  crimi- 
nal business, 
except  as  to 
jurors. 

1835.  116,  I  3. 
R.  S.  82,  §  42. 
1859,  196,  §  11. 
G.  S.  114,  §  17. 
P.  S.  152.  §  22. 
1897.  490,  §  4. 
R.  L.  157.  §  29. 
1912.209. 


Section  20.     Except  as  provided  in  section  twenty-nine,  in  counties  1 

in  which  separate  sittings  of  the  court  are  established  for  civil  and  crimi-  2 

nal  business,  criminal  cases  only  shall  be  tried  by  jury  at  the  criminal  3 

sittings,  and  civil  cases  only  at  the  civil  sittings;  but  jurors  summoned  4 

for  either  civil  or  criminal  business  may  by  order  of  the  court  be  used  5 

interchangeably  for  either  civil  or  criminal  business  as  occasion  may  6 

require.  1920,  i67.  iss  Mass.  199.  7 


fo^r^criminli"^'       Section  21.     The  chief  justice  may,  by  WTitten  order  to  the  sheriff,  1 

i874"2ob  order  a  special  jury  for  a  sitting  for  criminal  business  to  be  held  in  any  2 

f™7  490  Vl'    co'^i^ty  at  such  time  and  place  as  may  be  appointed  in  such  order.    The  3 

R.  l!  157]  §  30,  sheriff  shall  give  notice  thereof  as  directed  in  the  order  therefor;  but  no  4 

person  under  recognizance  to  answer  to  an  indictment  or  to  a  criminal  5 

complaint  shall  be  held  to  appear  at  such  special  sitting  or  at  any  time  6 

and  place  other  than  the  regular  sittings  of  the  court,  unless  duly  notified  7 

by  written  summons  from  the  clerk.  8 


Return  day  in 
criminal  cases. 
1841,  HI.  §  3. 
1859,  196,  §  12. 
G.  S.  114.  §  18. 
P.  S.  152.  §  23. 
1897.  490.  §  3. 
R.  L.  157,  §  28. 
1907.  176. 
11  Gray,  205. 


Section  22.    The  first  Monday  of  every  month  shall  be  a  return  1 

day  for  the  entry  of  appeals  in  criminal  cases  from  district  courts  and  2 

trial  justices  and  of  suits  upon  recognizances  and  bonds  in  such  cases.  3 

Such  appeals  shall  be  entered  on  the  return  day  next  after  the  appeal  4 

is  taken.    Such  suits  may  be  made  returnable  at  the  election  of  the  dis-  5 

trict  attorney  at  any  such  return  day  witliin  tliree  months  after  the  date  6 

of  the  ^\Tit.    Trials  by  jury  of  such  suits  shall  take  place  at  criminal  7 

sittings;  and  such  suits  shall  be  filed,  docketed  and  recorded  as  criminal  8 

cases.    If  said  first  Monday  is  a  legal  holiday,  such  entry  shall  be  made  9 

on  the  day  follo'n-ing.  10 


^"^ndfurf. "'        Section  23.     The  chief  justice  may,  by  written  order  to  the  sheriff,     1 

R  *l'  157'  1 31    cause  the  grand  jury  in  any  county  to  be  assembled  at  a  time  and  place    2 

appointed  therein.  3 


Section  24.     At  a  sitting  of  the  court  at  which  criminal  business 


Precedence  of 
certain  prose- 

is55"2i5  5  35  ™^''*'  ^^  transacted,  cases  arising  under  chapters  two  hundred  and  forty- 

1859!  196!  §54:  eight,  one  hundred  and  thirty-eight,  one  hundred  and  thirty-nine  and 

114. § 20.     I  two  hundred  and  seventj-three  shall  have  precedence  in  the  order  in 

R.  L.  157.  §  32.  which  said  chapters  are  herein  named,  next  after  the  cases  of  persons 

1913,563,  §  8.  .^.jjQ  gj.g  actually  confined  in  prison  and  awaiting  trial. 


S^'fttfig"  Section  25.     If  a  criminal  case  is  on  trial  at  the  end  of  a  sitting,     1 

p*^"i^5^2  5  26    ^^'^■'^  sitting  may  be  continued,  and  jurors  serving  in  such  case  may  be     2 
R.  L.  157, 5  33.  required  to  serve  until  the  case  is  finished.      121  Mass.  31.       iss  Mass.  199.  3 


Chap,  212.]  superior  court.  2271 

1  Section  26.     The  records  of  courts  wliich  are  transferred  to  the  Custody  of 

2  superior  court  shall  remain  in  custody  of  its  clerks.    In  Suffolk  county,  ism?  196,  §  4. 

3  the  clerk  of  said  court  for  civil  business  shall  have  the  custody  of  said  p.' |;  152,' |  It.' 

4  records  in  civil  cases,  and  the  clerk  for  criminal  business  shall  have  the  ^-  ^-  ^^'''  ^  ^*- 

5  custody  of  said  records  in  criminal  cases.    Copies  of  said  records  may 

6  be  certified  by  said  clerks  respectively.     Judicial  writs  and  processes 

7  which  are  founded  upon  such  records  shall  issue  under  the  seal  of  the 

8  superior  court,  in  like  manner  and  with  the  same  effect  as  similar  writs 

9  and  processes  founded  upon  its  own  records. 

1  Section  27.     The  chief  justice  shall  receive  a  salary  of  ten  thousand  ff59"i96^'KX7 

2  five  hundred  dollars,  and  each  associate  justice  a  salary  of  ten  thousand  G- s.  lu,  §  22. 

3  dollars,  and  the  chief  justice  and  each  associate  justice  shall  annually  is72!279; 

•  ...  1S79  ''ZQ 

4  receive  from  the  commonwealth,  upon  the  certificate  of  the  chief  justice,  p.  s.'r52,'§  28. 

5  the  amount  of  the  expense  incurred  by  them  in  the  discharge  of  their  iss8!i74! 

6  duties;  provided,  that  any  chief  justice  or  justice  appointed  before  June  igooisss!  §  2. 

7  foiu-th,  nineteen  hundred  and  twenty,  who  has  not  accepted  the  increase  ^g^^  743  |  2^- 

8  in  salary  provided  by  chapter  six  hundred  and  twenty-seven  of  the  acts  Jq.'S'pi'^  ^• 

9  of  nineteen  hundred  and  twenty  shall  receive  annually  two  thousand  §r2,'4r6.' 
10  dollars  less  than  the  salaries  above  provided  for. 

1  Section  28.     The  commonwealth  may  annually  expend  not  more  than  Miscellaneous 

2  two  thousand  five  hundred  dollars  for  printing,  for  transportation  of  i907°la 

3  papers  and  documents,  for  clerical  work,  for  inspection  of  the  records  and  ^^^*'  ^'^■ 

4  doings  of  persons  authorized  to  admit  to  bail,  and  for  certain  other  ex- 

5  penses  incident  to  the  work  of  the  court,  to  be  expended  under  the  direc- 

6  tion  of  the  chief  justice. 

1  Section  29.     A  prisoner  held  in  jail  for  trial  upon  an  indictment  for  Speedy  trial  of 

2  an  offence  not  punishable  by  death  or  by  imprisonment  for  life,  or  so  fauTn°defait° 

3  held  upon  an  appeal,  at  any  time  except  during  a  sitting  of  the  superior  Jg^o/jey. 

4  court  for  criminal  business  in  the  county  Mhere  he  is  held,  may  petition 

5  said  court  that  he  be  brought  before  the  court  at  a  sitting  thereof  for 

6  civil  business  in  that  county  in  order  that  disposition  may  be  made  of 

7  his  case.    After  due  notice  to  the  district  attorney,  and  with  his  consent, 

8  the  court  may  grant  the  petition,  and  the  presiding  justice  may  dispose 

9  of  the  case,  as  if  he  were  holding  a  sitting  of  the  court  for  criminal  busi- 

10  ness,  or  he  may  continue  the  case  to  the  next  sitting  of  the  court  for 

1 1  criminal  business.    When  a  person  who  has  a  right  to  so  petition  is  com- 

12  mitted  to  jail,  the  keeper  thereof  shall  notify  him  of  such  right,  furnish 

13  him  with  a  blank  form  for  its  exercise,  and  transmit  it  to  the  court,  if 

14  signed  by  him.  This  section  shall  not  apply  in  cases  in  which  two  or 
1.5  more  persons  are  held  on  one  complaint  or  indictment,  unless  all  the  de- 
16  fendants  join  in  the  petition. 

REFERENCES. 

Provisions  of  law  relative  to  proceedings  before  trial  in  criminal  cases  heretofore 
contained  in  R.  L.  157,  §§  10-17,  and  in  1911,  432,  are  in  Chap.  277, 
§§  47-56. 
§§  3,  4.     Jurisdiction  in  equity,  Chap.  83,  §  13;   Chap.  139,  §§  6,  7,  16;   Chap.  176, 
§  47;  Chap.  214. 
Jurisdiction  in  mandamus  in  certain  tax  cases,  Chap.  62,   §  31. 
Jurisdiction  upon  appeal  from  order  of  mayor  and  aldermen  or  selectmen 

as  to  burnt,  dilapidated  or  dangerous  building,  Chap.  139,  §§  1,  2. 
Jurisdiction  to  review  action  of  board  of  health  or  building  inspector  rela- 
tive to  tenement  houses,  Chap.  144,  §  90,  and  Chap.  145,  §  55. 


2272 


SUPEEIIE  JUDICLiL  AXD  SUPERIOR  COUETS. 


[ClL\P.   213. 


CHAPTER    213. 

PROVISIONS  COMMON  TO  THE  SUPREME  JUDICIAL  AND  SUPERIOR 

COURTS. 


Sect. 

1.  Vacancies,  etc. 

2.  Issue  of  process  in  any  county. 

3.  Rules. 

4.  Courts  always  open. 

5.  Transaction  of  business  in  any  county. 

6.  Duration  of  sittings. 

7.  Simultaneous  sessions. 


Sect. 
S.  Allowance  of  accounts. 
9.  Attendance  of  justices. 

10.  Adjournment  to  another  shire  town. 

11.  Adjournment  in  absence  of  justice. 

12.  Same  subject. 

13.  Seal  and  officers  of  court. 


varancies^  et^c.       SECTION  1.     In  CEse  of  a  vacancy  in  the  office  of  cliief  justice  of  the  1 

p.' I.' 153.' 1 1!     supreme  judicial  or  the  superior  court,  or  of  his  illness  or  absence,  his  2 

R.  L.  15S,  §  1.    duties  shall  be  performed  by  the  senior  justice  present  and  qualified  3 

to  act.  4 


Issue  of 
process  in  any 
county. 
1886,  223. 
R.  L.  158,  §  2. 


Section  2.  If,  in  the  opinion  of  a  justice  of  either  court,  it  is  im- 
portant that  a  writ  or  other  process  should  be  speedily  issued  in  a  cause 
pending  in  the  court  of  which  he  is  a  justice,  he  may  order  it  to  be 
issued  by  the  clerk  of  the  courts  in  the  county  in  which  he  is  sitting;  and 
such  clerk  shall  transmit  the  order  to  the  clerk  of  the  courts  of  the 
county  in  which  the  cause  is  pending,  to  be  filed  and  recorded  with  the 
other  papers  in  the  case. 


Rules. 
1782,  9,  §  4. 
1820,  79,  §  7. 
R.  S.  81,  §  10; 
82,  §  37. 
1836,  273,  I  2. 

1851,  233, 
§§  44,  113. 

1852,  312, 
§§  34,  76. 

1853,  371,  §  4. 
1857,  267,  §  3. 
1859.  196, 

l§  33,  49. 
G.  S.  113,  §  26; 
lis,  §  4. 
1874,  339,  5  4. 
P.  S.  151,  §  33; 
153,  §  4. 
R.  L.  15S,  §  3. 
127  Mass.  518. 
227  Mass.  375. 
229  Mass.  478. 
236  Mass.  330. 


ISSo,  384,  §  12. 


1894,  283,  §  2. 


Section  3.  The  courts  shall,  respectively,  make  and  promulgate  1 
uniform  codes  of  rules,  consistent  M'ith  law,  for  regulating  the  practice  2 
and  conducting  the  business  of  such  courts  in  cases  not  expressly  pro-  3 
vided  for  by  law,  for  the  following  purposes:  4 

First,  Simplifying  and  shortening  pleadings  and  procedure.  5 

Second,  Prescribing  the  terms  upon  which  amendments  will  be  al-  6 
lowed  or  unnecessary  counts  and  statements  stricken  from  the  record;  7 
discouraging  negligence  and  deceit;  preventing  delay;  securing  parties  S 
from  being  misled;  placing  the  party  not  in  fault  as  nearly  as  possible  9 
in  the  condition  in  which  he  Mould  ha^•e  been  if  no  mistake  had  been  10 
made;  distinguishing  between  form  and  substance;  and'  substituting  11 
fixed  and  certain  requirements  for  the  discretion  of  the  court.  12 

Third,  Conducting  trials.  •  13 

Fourth,  Presenting  distinctly  the  questions  to  be  tried  by  the  jury.        14 

Fifth,  Giving  a  party  such  notice  of  the  e^•idence  which  is  intended  to  15 
be  offered  by  the  adverse  party  as  will  prevent  surprise  and  enable  him  16 
to  prepare  for  trial.  17 

SLxth,  Prescribing  such  forms  of  verdicts  as  will  place  upon  record  18 
the  finding  of  the  jury.  19 

Seventh,  The  entry  of  judgment  by  the  clerk  under  a  general  order  20 
in  all  cases  ripe  for  judgment.  21 

Eighth,  Expediting  the  decision  of  causes  and  securing  the  speedy  22 
trial  thereof.  23 

Ninth,  Remedying  abuses  and  imperfections  in  practice  and  di-  24 
minishing  costs.  25 


Chap.  213.]  supreme  judicial  and  superior  courts.  2273 

26  Tenth,  Filing  and  hearing  motions  to  set  aside  verdicts  and  notifying  is97, 472. 

27  adverse  parties  thereof. 

28  Eleventh,  The  superior  court  may  also  make  and  promulgate  such  is96, 40i. 

29  rules  for  the  regulation  of  the  printing,  publication  and  distribution  of 

30  trial  lists  and  for  notifying  attorneys  of  trials  in  civil  causes  as  the 

31  public  convenience  in  the  several  counties  requires. 

32  The  rules  of  the  superior  court  shall  not  conflict  with  those  of  the 

33  supreme  judicial  court. 

1  Section  4.     The  courts  shall  always  be  open  in  every  county  and  the  Courts  always 

2  business  thereof,  or  of  the  justices  thereof,  may  be  transacted  at  any  isss,'  384.  §  2. 

3  time;    but  such  business  shall  not,  except  as  provided  in  section  six  r^^l!  iss,' 1 1' 

4  of  chapter  two  hundred  and  twenty,  be  transacted  on  Sunday  or  on  a  \ll  ^l^-  ^Jj^- 

5  legal  holiday  unless  it  relates  to  an  application  which,  in  the  opinion  of  ]l^  m^^s.  37 
D  the  justice  to  whom  it  is  made,  is  01  pressing  necessity.  227  Mass.  598. 

1  Section  5.     The  courts  and  the  justices  thereof,  respectively,  may  Transaction  of 

2  in  any  county  transact  any  business  of  such  courts  and  direct  the  entry  county.^ '°  ""^ 

3  of  any  order,  judgment  or  decree  in  an  action,  suit  or  proceeding  pend-  ^^l[  lll[  |  5; 

4  ing  in  the  same  court  in  another  county. 

1  Section  6.     Regular  sittings  of  the  courts  for  the  transaction  of  civil  Duration  of 

Sittings 

2  or  criminal  business  shall  commence  on  the  dav  appointed  by  law  there-  isss.  384,  §  4. 

*"  .  1897  490 

3  for  and  end  on  the  day  preceding  the  day  next  appointed  by  law  for  a  r.  l.  iss!  §  e. 

4  sitting  in  such  county  for  the  transaction  of  the  same  kind  of  business. 

5  Such  regular  sittings  may  at  any  time  be  adjourned  from  time  to  time 

6  or  without  day,  and  such  adjournment  shall  excuse  the  attendance 

7  during  the  adjournment  of  all  persons  required  to  attend  at  the  sitting, 

8  unless  expressly  notified  to  attend,  but  shall  not  otherwise  terminate 

9  the  sitting. 

1  Section  7.     Two  or  more  simultaneous  sessions  of  the  court  may  be  simultaneous 

2  held  in  the  same  county,  if  public  convenience  requires;  and  the  business  issTslo,  §  2. 
■3  may  be  so  divided  as  to  secure  its  speedy  and  convenient  disposal.  a^l.'us.'lil.' 

p.  S.  153,  §  22.  R.  L.  158,  §  7. 

1  Section  8.     The   courts    shall,    respectively,    receive,    examine   and  ^cTOunts"*^  °^ 

2  allow  accounts  for  services  and  expenses  incident  to  their  sittings  in  the  r°|'|I' 5  4g 

3  several  counties  and  order  payment  thereof  out  of  the  respective  county  isso,  ig'e,  §  20. 

...  G.  S.  115,  §  17. 

4  treasuries. 

p.  S.  153,  §23.  R.  L.  158,  §8.  104  Mass.  537.  3  Op.  A.  G.  559. 

1  Section  9.     The  justices  of  each   court,   except  as  otherwise  pro-  Attendance  of 

2  vided,  shall  make  such  arrangements  for  the  attendance  of  a  justice  at  isfi^fs,  §  i. 

3  the  several  times  and  places  appointed  for  holding  their  court  as  will  be  §'  i'  iis.^^is. 

4  most  convenient  and  as  will  insure  the  prompt  performance  of  their  rl'iss^I*' 

5  duties.  loio,  555,  §  2. 

1  Section  10.     If  public  business  requires,  either  court  may  adjourn  Adjournment 

2  an  established  sitting  in  one  shire  town  to  another  in  the  same  county,  shiretown. 

3  Persons,  recognizances  and  processes  required  to  appear  at  or  to  be  IsmIPI: 

4  returned  to  the  established  sitting  shall  appear  at,  be  returnable  to  and  p'|;i63'|2'5' 

5  have  day  in,  the  adjourned  sitting.  R.  l.  158,  §  12.  i  op.  a.  g.  152. 


2274 


EQUITY  JTJEISDICTION   AND   PROCEDUEE. 


[ClL\P.   214. 


Adjournment 
in  absence  of 
justice. 
1782,  9.  §  5. 
1804,  lOS,  §  8. 
1820,  14,  §  5; 
79,  §  2. 
1830.  113,  §  9. 
R.  S.  81,  §39; 
82,  §  39. 
1859,  196,  §  19. 
G.  S.  115,  §  20. 
P.  S.  153,  §  26. 
R.  L.  158.  §  13. 
97  Mass.  214. 


Section  11.     If  no  justice  is  present  at  the  time  and  place  appointed  1 

for  holding  a  court  at  the  beginning  of  a  sitting  or  at  an  adjournment  2 

thereof,  the  sheriff  of  the  county  or  any  of  his  deputies  may  adjourn  3 

the  court  from  day  to  day  or  from  time  to  time,  as  circumstances  re-  4 

quire,  or  as  ordered  by  any  of  the  justices,  and  shall  give  notice  of  such  5 

adjournment  by  making  public  proclamation  in  the  court  house,  and  6 

by  a  notice  posted  on  the  door  of  the  court  house  or  published  in  a  7 

newspaper.  8 


i7S!9r§^"*'        Section  12.     In  such  case,  any  justice  may  by  a  written  order  re- 
§;  I  fl5.^§*2i.  quire  the  sheriff  or  his  deputy  to  adjourn  the  court  without  day  or  to 

p.  S.  153,  §  27.     i-Ytfi  timp>  ^irrir*iQCprl   in   +lip  nrrlpr*     nnrl   flip  nfllppr  Qliall   nrlimirn   tVlP  pmirt       3 

4 


R  L  158  "5 14    ^^®  time  expressed  in  the  order;  and  the  officer  shall  adjourn  the  court 


accordingly  by  public  proclamation  in  the  court  house. 


1 

2 


Seal  and 
oiBcers  of 


Section  13.    Each  court  may  establish  a  seal  and  appoint  all  officers    1 
im'196,  §  16.  necessary  for  the  transaction  of  its  business.  2 


G.  S.  115,  §  22. 


P.  S.  153,  §  28. 


R.  L.  158,  §  15. 


REFERENCE. 

■    Retirement  and  resignation  of  justices,  pensions,  and  service  after  retirement. 
Chap.  32,  §§61-63. 


CHAPTER     214 


EQUITY  JURISDICTION  AND  PROCEDURE  IN  THE  SUPREME  JUDICIAL 
AND  SUPERIOR  COURTS. 


Sect. 


JURISDICTION. 


1.  General  equity  jurisdiction,  concurrent. 

2.  Statutory  equity  jurisdiction, 

3.  Special  jurisdiction. 

4.  Issue  of  process. 


5.  Venue. 

SUPERIOR    COURT    PR.\CTICE. 

6.  Procedure  in  superior  court. 

COMMENCEMENT    OF    SUITS,    NOTICE,    ETC. 

7.  Commencement  of  suits  in  equity. 

8.  Bill  not  required  in  summons. 

9.  Preliminary  injunctions  and  temporary 

restraining    orders,    when    granted. 
Notice. 

10.  Notice  in  questions  under  wills. 

11.  Docket  entrj'  of  equity  suits. 


PLEADING. 

12.  Form  of  bill. 

13,  Demurrer,  answer  and  plea. 


Sect. 

14.  Effect  of  answer.     No  replication  re- 

quired. 

15.  Signature  to  pleadings. 


HE.UilNGS. 

16.  Hearing  by  one  justice. 

17.  Court  always  open. 

IS.  Hearing    cases    pending 
county. 


in     another 


19.  Appeal  from  final  decree. 

20.  Separate  docket  for  equity  and  pro- 

bate appeals. 

21.  Injunction  or  receiver  pending  appeal. 

22.  Modification    of    decree    of    superior 

court. 
Report  of  facts. 
Report  of  testimony  upon  appeal. 

25.  Questions  raised  by  exceptions  to  be 

heard  and  determined  ^-ith  appeal. 

26.  Interlocutory  decree,  appeal  from. 

27.  Re\'ision  of  interlocutory  decree  upon 

appeal  from  final  decree. 

28.  Petition  for  leave  to  appeal. 

29.  Execution  on  final  decree. 


23. 

24. 


Ch-^p.  214.] 


EQUITY  JUEISDICTION  ANT)  PEOCEDUEE. 


2275 


Sect. 

EEPORT. 

30.  Report  of  interlocutory  decree  or  order 

to  full  court. 

31.  Reservation  for  full  court. 


KEMOV.4L 


FROM       SUPEHIOR      TO       SUPREME 
JUDICIAL   COURT. 


32.  Removal  of  suit  from  superior  court. 

33.  Removal  for  hearing  with  other  suit. 

ISSUES    TO    JURY. 

34.  Jury  issues. 

35.  Jury  may  be  summoned. 

36.  Jury  issues  in  superior  court. 


Sect. 

sittings  op  the  courts. 

37.  Continuous  sitting  in  Boston. 

38.  Hearings    at    chambers    for    western 

counties. 


MISCELLANEOUS    PROVISIONS. 

39.  Control  of  case  by  court  having  juris- 

diction. 

40.  Decree,  etc.,  to  bear  date  of  entry. 

41.  Writs  of  seisin  and  execution. 

42.  Receiver's  bond. 

43.  Taking  papers  from  files. 


JURISDICTION. 

1  Section  1.     The   supreme  judicial   and  superior  courts   shall  have  General  equity 

2  original  and  concurrent  jurisdiction  in  equity  of  all  cases  and  matters  TOMurrent"' 

3  of  ecjuity  cognizable  under  the  general  principles  of  equity  jurisprudence  q%[  Wl]  5  2. 

4  and,  with  reference  thereto,  shall  be  courts  of  general  equity  jurisdiction.  ^''i'lJf'll' 


1883,  223,  5§  1,  2. 

135  Mass.  140. 

177  Mass.  230. 

R.  I,.  159,  §  1, 

140  Mass.  459. 

LSI  Mass.  41. 

10  Gray,  283. 

141  Mass.  535. 

1,S4  .Mass.  571. 

6  .\llen,  59,  60.  126. 

142  Mass.  206. 

1S5  Mass.  448.  . 

221,601. 

144  Mass.  130. 

190  Mass.  40. 

8  Allen,  587. 

150  Mass.  73. 

203  Mass.  591. 

99  Mass.  208.  209. 

155  Mass.  417. 

211  Mass.  238,  494. 

100  Mass.  365. 

159  Mass.  356. 

215  Mass.  419,480. 

101  Mass.  447. 

161  Mass.  416. 

218  Mass.  367. 

104  Mass.  239. 

165  M.ass.  123. 

220  Mass.  106. 

119  Mass.  123,  161. 

166  .Mass.  294. 

224  Mass.  474. 

130  Mass.  16. 

168  Mass,  76. 

225  Mass.  377. 

131  Mass.  291. 

172  Mass.  S3. 

226  Mass.  30. 

1      Section  2.    The  supreme 

judicial  court 

shall  have  original  and  ex- 

Statutory 

2  elusive  jurisdiction  in  equity 

of  all  cases  and  matters  of  equity  cogniza- 

equity  juris- 
diction. 

3  ble  under  any  statute  and  not  within  the  j 

urisdiction  conferred  by  the 

G.  S.  113,  §  1. 
P.  S.  151,  §  1. 

4  preceding  section,  unless  a  different  provision  is  made;  and  the  superior 

1883,  223,  §  1. 
R,  L.  159,  §  2 

5  court  shall  have  like  original  and  exclusive, 

or  like  original  and  concur- 

1,50  Mass.  73. 
155  Moss.  417 

6  rent,  jurisdiction  only  if  the  statute  so  provides. 

185  Mass.  448. 

203  Mass.  591. 

228  Mass.  191. 

1       Section  3.     The  supreme 

judicial   and 

superior  courts  shall  have 

Special  juris- 
diction. 
R.  S.  81,  §  8. 

2  original  and  concurrent  jurisdiction  in  equity  of  the  following  cases: 

G.  S.  113,  §  2. 

12  Met.  316. 

120  Mass.  607. 

P.  S.  151,  §  2. 

4  Gray,  324. 

134  Mass.  181.  593. 

1883,  223,  §  2. 

100  Mass.  540. 

135  M.ass.  140. 

R.  L.  159,  §  3. 

103  Mass.  341,514 

137  Mass.  487. 

6  Pick.  376. 

110  Mass.  1. 

147  Mass.  23. 

13  Pick.  169. 

115  Mass.  170. 

148  Mass.  1. 

23  Pick.  148. 

244,  253. 

228  Mass.  191. 

3  (1)  Suits  to   compel  the  re-delivery  of  goods  or  chattels  taken  or  Re-deiivery, 

4  detained  from  the  owner,  and  so  secreted  or  withheld  that  they  cannot  1823, 140,  §  1. 

5  be  replevied.  1853, 371,54.  s  rick.  2.54.  20  Pick.  28. 


23  Pick.  228. 
2  Met.  127. 
S  Met.  525. 
7  Gush.  530. 


7  Grav,  146. 
16  Grav,  213. 
131  Mass.  319. 
134  Mass.  181. 


192  Mass.  13. 

194  Mass.  113. 

195  Mass.  141. 
221  Mass.  308. 


6  (2)  Suits  for  contribution  by  or  between  devisees,  legatees  or  heirs  liable  Contribution. 

7  for  the  debts  of  a  deceased  testator  or  intestate,  and  by  or  between  other  isssi  371,  §  4, 

8  persons  respectively  liable  for  the  same  debt  or  demand,  if  there  are  two 

9  or  more  such  persons  liable  at  the  same  time  to  make  such  contribution. 


2276 


EQUITY  JUKISDICTION  AND   PROCEDURE. 


[CIL4.P.   214. 


Multiplicity 
of  interests. 

5  Met.  140, 
52.5. 

6  Met.  425. 


Joint  owners, 
etc. 

1891,  383. 
193  Mass.  267. 


•Joint  trustees, 

etc. 

1832,  162. 

Accounts. 

H.  S.  118,  §43. 

1  Cush.  82. 


Creditors' 
bills. 

1851.  206. 
1858,  34. 
1884,  285. 
1902,  544,  §  23. 
1910.531,  §  2. 
S  Gray,  199. 

12  Gray,  365. 

13  Gray,  305. 
15  Gray,  457, 
1  Allen,  566. 
13  Allen,  33. 

99  Mass.  267. 

100  Mass.  390. 

105  Mass.  423. 

106  Mass.  373. 
109  Mass.  383, 
478. 

115  Mass.  98. 
lis  Mass.  271. 
119  Mass.  155. 
123  Mass.  32. 
125  Mass.  11. 

127  Mass.  206, 
210,  558. 

128  Mass.  478. 

131  Mass.  291. 

132  Mass.  164, 
408. 

133  Mass.  180. 

136  Mass.  73. 

137  Mass.  523. 
140  Mass.  271, 
494. 


(3)  Other  cases  in  which  three  or  more  parties  have  distinct  rights  10 
or  interests  which  cannot  be  justly  and  definitely  decided  and  adjusted  11 
in  one  action  at  law.  i3  Gray,  5.  12 


5  Allen,  379. 
100  Mass.  355. 
105  Mass.  543. 


110  Mass.  54. 
113  Mass.  495. 
120  Mass.  4S1. 


132  Mass.  410. 
135  Mass.  179. 
144  M.1SS.  1.30. 


148  Mass.  1. 
208  Mass.  326. 
109  U.  S.  578. 


(4)  Suits  between  joint  owners  of  personal  property,  and  their  legal  13 
representatives,  relative  to  such  property,  with  authority  to  determine  14 
their  respective  rights  and  interests  therein,  to  order  a  division  or  sale  15 
thereof  and  make  and  order  a  proper  distribution  of  the  proceeds  of  a  sale,  16 
and  to  do  all  other  things  relative  to  a  determination  of  the  ownership,  17 
division  and  distribution  of  such  property  or  the  proceeds  thereof.  18 

(5)  Suits  between  joint  trustees,  co-executors  and  co-administrators,  19 
and  their  legal  representatives.  R.  s.  70,  5  35.  is53,  371,  §  4.  20 

(6)  Suits  upon  accounts  of  such  a  nature  that  they  cannot  be  con-  21 
veniently  and  properly  adjusted  and  settled  in  an  action  at  law.  22 


7  Cush.  445. 
100  Mass.  48. 
110  Mass.  32. 


114  Mass.  121. 
120  Mass.  507. 
123  Mass.  117. 


145  Mass.  56. 
193  Mass.  251. 
200  Mass.  579. 


214  Mass.  134. 
234  Mass.  458. 


(7)  Suits  by  creditors  to  reach  and  apply,  in  payment  of  a  debt,  any  23 
property,  right,  title  or  interest,  legal  or  equitable,  of  a  debtor,  within  24 
or  without  the  commonwealth,  which  cannot  be  reached  to  be  attached  25 
or  taken  on  execution  in  an  action  at  law,  although  the  property  sought  26 
to  be  reached  and  applied  is  in  the  possession  or  control  of  the  debtor  27 
independently  of  any  other  person  or  cannot  be  reached  and  applied  28 
until  a  future  time  or  is  of  uncertain  value,  if  the  value  can  be  ascer-  29 
tained  by  sale,  appraisal  or  by  any  means  within  the  ordinary  procedure  30 
of  the  court.  In  such  suit,  the  interest  of  the  defendant  in  partner-  31 
ship  property  may  be  reached  and  applied  in  payment  of  the  plaintiff's  32 
debt;  but  unless  it  is  a  judgment  debt,  the  business  of  the  partnership  33 
shall  not  be  enjoined  or  otherwise  interrupted  further  than  to  restrain  34 
the  withdrawal  of  any  portion  of  the  debtor's  share  or  interest  therein  35 
until  the  plaintiff's  debt  is  established;  and  if  either  partner  gives  to  the  36 
plaintiff  a  sufficient  bond,  with  sureties  approved  by  the  clerk,  condi-  37 
tioned  to  pay  to  the  plaintiff"  the  amount  of  his  debt  and  costs  within  38 
thirty  days  after  it  is  established,  the  court  shall  proceed  no  further  39 
therein  than  to  establish  the  debt;    and  upon  the  filing  of  such  bond,  40 

41 


any  injunction  previously  issued  in  such  suit  shall  be  dissolved 

187  Mass.  266.  214  Mass.  134. 

1,88  Mass.  502.  215  Mass.  415. 

189  Mass.  34.  112.  194,424.  216  Mass.  118,426. 

190  Mass.  277,  285.  218  Mass.  360. 

193  Mass.  77. 

194  Mass.  601. 

195  Mass.  8,  45fi. 

196  Mass.  1. 
199  Mass.  160,  516. 

201  Mass.  479. 

202  Mass.  562. 

204  Mass.  362. 

205  Ma.ss.  228. 

206  Mass.  373. 
209  Mass.  690. 

211  Mass.  28. 

212  Mass.  118,  486. 

213  Mass.  203. 


142  Mass.  206. 

147  Mass.  81. 

148  Mass.  76,247,411. 
119  Mass.  24,  487. 

150  Mass.  211,  289. 

151  Mass.  266, 428,  481,  515. 

152  Mass.  64. 
154  Mass.  302. 

159  Mass.  259,  484. 
161  Mass.  58. 

163  Mass.  127. 

164  Mass.  85,  274. 

165  Mass.  389. 

171  Mass.  309,  600. 
ISO  Mass.  543. 
1S2  Mass.  302. 

185  Mass.  58.  202,  380. 

186  Mass.  275,  484. 


219  Mass.  61. 

221  Mass.  302. 

222  Mass.  131, 
166,  405. 

223  Mass.  325. 

224  Mass.  193. 
227  Mass.  15,  216,  501. 

229  Mass.  235. 

230  Mass.  67,  514. 

232  Mass.  387. 

233  Mass.  522. 

234  Mass.  279,  477. 

235  Mass.  244. 

236  Mass.  117. 


Suits  to  reach 
and  -ipply  cor- 
porate shares, 

1910,  531,  §  2, 

222  Mass.  27, 

131. 

227  Mass.  216. 

230  Mass.  67. 

Fraudulent 

conveyances. 

1875,  2.35. 

P.  S.  151,  §  3. 


(8)  Suits  to  reach  and  apply  shares  or  interests  in  corporations  or-  42 
ganized  under  the  laws  of  the  commonwealth  or  of  the  United  States,  43 
and  located  or  having  a  general  office  in  the  commonwealth,  whether  44 
the  plaintiff  is  a  creditor  or  not,  and  whether  the  suit  is  founded  upon  45 
a  debt  or  not.  46 

(9)  Suits  to  reach  and  apply  in  payment  of  a  debt  any  property,  47 
right,  title  or  interest,  real  or  personal,  of  a  debtor,  liable  to  be  attached  48 


CH.A.P.   214.]  EQUITY  JURISDICTION  AND   PROCEDURE.  2277 

49  or  taken  on  execution  in  an  action  at  law  against  him  and  fraudulently  isss.  223,  §  2. 

50  conveyed  by  him  with  intent  to  defeat,  delay  or  defraud  his  creditors,  137  Mass!  483! 

51  or  purchased,  or  directly  or  indirectly  paid  for,  by  him,  the  record  or  i^Masslios! 

52  other  title  to  which  is  retained  in  the  vendor  or  is  con\'eyed  to  a  third  HI  ^T^'.  132' 

53  person  with  intent  to  defeat,  delay  or  defraud  the  creditors  of  the  debtor.  154^1^55  310 

186  Mass.  391,  484.  206  Mass.  39.  219  Mass.  61. 

187  Mass.  426,  571.  212  Mass.  118.  231  Mass.  563. 
198  Mass.  132.                               215  Mass.  415.                              233  Mass.  So,  499. 

54  (10)  Suits  to  reach  and  apply,  in  satisfaction  of  a  judgment  for  dam-  Certain  insur- 

55  ages  for  bodily  injury  or  death,  which  has  not  been  satisfied  within  i9u.'464?T2. 

56  thirty  days  after  the  date  when  it  was  rendered,  the  obligation  of  an  ^^s  Mass.  isi, 

57  insurance  company  to  the  judgment  debtor  under  a  policy  insuring  him  ^^°  ^^'^^^-  ^^■ 

58  against  liability  for  loss  or  damage  from  such  injury  or  death. 

1  Section  4.     Each  court  may,  if  necessary  to  secure  justice  and  ecjuity,  issue  of 

2  issue  to  courts  of  inferior  jurisdiction,  corporations  and  persons  all  gen-  i7S2r9,'  §  2. 

3  eral  and  special  writs  and  processes  required  in  proceedings  in  equity.      r/s.'  si,"  |  I. 

G.  S.  113,  §  1.  P.  S.  161,  §  1.  1SS3,  223.  §  1.  R.  L.  159,  §  4. 

VENUE. 

1  Section  5.    Suits  in  equity  in  said  courts  may  be  brought  in  any  Venue. 

2  county  in  which  a  transitory'  action  between  the  same  parties  might  be  r**l!  159]  1 5^' 

3  brought,  as  well  as  in  counties  in  which  it  is  elsewhere  provided  that  i^'S  Mass.  3-6. 

4  such  suits  may  be  brought. 

SUPERIOR  COURT   PRACTICE. 

1  Section  6.     Procedure,  process  and  practice  in  equity  causes  in  the  Procedure  in 

2  superior  court  shall,  as  nearly  as  may  be,  conform  to  that  of  the  su-  i8S3!'223™§'3. 

3  preme  judicial  court,  the  general  rules  of  which  for  the  regulation  of  ^'  ^'  ^^''  ^  ''■ 

4  practice  in  equity  shall,  so  far  as  applicable  and  except  as  hereinafter 

5  provided,  be  the  rules  of  the  superior  court  for  the  regulation  of  practice 

6  in  equity. 

commencement  of  suits,  notice,  etc. 

1  Section  7.    Suits  in  equity  may  be  commenced  by  bill  or  petition  Commence- 

2  with  a  writ  of  subpoena  according  to  the  usual  course  of  proceedings  in  iS^quUy."'  ^ 

3  equity,  or  by  an  original  writ  of  summons  or  of  summons  and  attachment  r™s;  H',  §  117., 

4  or  by  trustee  process.     If  the  suit  is  commenced  by  bill  or  petition,  the  jslsfsl^i 

5  court  may  order  an  attachment  of  property  or  the  arrest  of  the  defendant,  y^'g-  |g     , 

6  If  commenced  by  a  writ,  an  attachment  may  be  made  without  special  g.  s.'iis,  §3. 

7  order  of  court,  if  the  writ  authorizes  such  attachment.     If  the  writ  isss,  223, 

8  authorizes  an  arrest,  such  arrest  may  be  made  upon  compliance  with  r  i.'.V59,  §8. 

9  section  two  of  chapter  two  hundred  and  twenty-four.    A  subpoena  or  i^cu'sh.^lks. 

10  other  writ  shall  be  returnable  on  one  of  the  return  days  prescribed  by  Js^'ATass'^Igg 

11  section  twentv-four  of  chapter  two  hundred  and  twentv-three.     When  a  V,"j  J!'"'^- 5?2- 

12  suit  in  equity  is  commenced  by  an  original  writ  as  provided  in  this  section,  232  jiass.  7. 

13  such  writ,  with  the  bill  or  petition  attached  thereto,  may  at  any  time 

14  after  service  thereof,  before  the  return  day,  be  entered  in  the  court  to 

15  which  it  is  returnable,  and  thereupon  the  court  may  make  such  orders 

16  as  to  attachment,  arrest,  and  injunction,  or  for  discharging  from  arrest, 

17  or  for  dissolving  an  attachment  or  injunction,  or  such  other  orders,  as  the 

18  court  would  have  had  power  to  make  if  the  suit  had  been  commenced  by 

19  bill  or  petition. 


2278  EQUITY  JURISDICTION  AND   PKOCEDUEE.  [Ch.U'.   214. 

qired  in^           SECTION  8.     If  a  suit  in  eqiiitv  is  commenced  by  bill  or  petition  in-  1 

i8so°37''         serted  in  an  original  MTit  of  simimons  or  of  summons  and  attachment,  2 

P- I'lsi.  §  6.    or  in  a  -^^-rit  of  trustee  process,  the  bill  or  petition  need  not  be  inserted  3 

E.  h.  159',  §  o'.    in  the  separate  summons,  in  the  cop^y  of  the  original  writ  to  be  served  on  4 

the  defendant,  or  in  the  copy  of  the  writ  to  be  deposited  or  left  with  or  5 

in  the  ofBce  of  a  register  of  deeds  or  officer  of  a  corporation  or  other  per-  6 

son  for  the  purpose  of  making  an  attachment.  7 

injun?ti^n7and      SECTION  9.     No  preliminary  injunction    shall   be   granted  without  1 

stramin"ordere,  Doticc  to  the  oppositc  party.    No  temporary  restraining  order  shall  be  2 

Notrd'^'""^'''    granted  without  notice  to  the  opposite  party,  unless  it  shall  clearly  ap-  3 

1913, 515;  S40.  pg^r  from  specific  facts,  shown  by  affidavit  or  by  the  verified  bill,  that  4 

immediate  and  irreparable  loss  or  damage  will  result  to  the  applicant  5 

before  the  matter  can  be  heard  on  notice.    If  in  such  a  case  a  temporary  6 

restraining  order  is  granted  without  notice,  notice  of  the  application  7 

for  a  preliminary  injunction  shall  be  made  returnable  at  the  earliest  8 

possible  time,  and  in  no  event  later  than  ten  days  from  the  date  of  the  9 

order,  and  shall  take  precedence  of  all  matters  except  older  matters  of  10 

the  same  character.    When  the  matter  comes  up  for  hearing,  the  party  11 

who  obtained  the  temporary  restraining  order  shall  proceed  with  his  12 

application  for  a  preliminary  injunction,  and  if  he  does  not  do  so  the  13 

court  shall  dissolve  the  temporary  restraining  order.    Upon  two  days'  14 

notice  to  the  party  obtaining  such  temporary  restraining  order,  the  15 

opposite  party  may  appear  and  move  the  dissolution  or  modification  of  16 

the  order,  and  in  that  event  the  court  or  judge  shall  proceed  to  hear  and  17 

determine  the  motion  as  expeditiously  as  the  ends  of  justice  may  re-  18 

quire.    Every  temporary  restraining  order  shall  be  filed  or  noted  forth-  19 

with  in  the  clerk's  oSice.    This  section  shall  not  apply  to  proceedings  in  20 

the  probate  courts.  21 

qu°e'5t^ion°              SECTION  10.     Upou  petitions  for  the  construction  of  wills,  or  for  1 

isgg.'^s'rs'^'       instruction  relative  to  wills,  the  court,  instead  of  service  according  to  2 

2ii^JilS.'  l9i°'  the  usual  course  in  equity,  may  order  notice  of  the  petition  and  of  the  3 

time  and  place  for  hearing  to  be  served  on  such  number  of  the  parties  4 

in  interest  representing  all  possible  interests  as  the  court  shall  direct,  5 

and  to  be  published  for  tlu-ee  weeks  successively  in  such  newspaper  as  6 

it  directs.     If  it  appears  that  any  possible  interest  is  not  represented,  7 

further  service  may  be  ordered  until  all  possible  interests  are  represented  8 

before  the  court  or  until  a  guardian  ad  litem  has  been  appointed.     If  9 

all  possible  interests  are  represented  by  persons  before  the  court,  it  shall  10 

be  unnecessary  to  make  other  persons  having  similar  interests  parties  11 

defendant.  12 

of  "equity"  "^         SECTION  11.     Suits  1X1  cQuity  in  the  superior  coiu-t  shall  be  entered  1 

1883!  223.  §  5.    ou  the  Same  docket  as  other  cases,  except  in  Suffolk,  IMiddlesex  and  2 

1892!  440!         Essex  counties,  where  they  shall  be  entered  upon  a  separate  equity  3 

1905  107'  ^  ^^'  docket.    All  processes  shall  be  returnable  at  the  retiu-n  day  occurring  4 

next  after  fourteen  days  from  the  date  of  the  process,  if  required  to  be  5 

served  fourteen  days  before  the  return  day,  or  at  the  return  day  occur-  6 

ring  next  after  thirty  days  from  such  date,  if  required  to  be  served  thirty  7 

days  before  the  return  day,  or  at  any  return  day  within  three  months  8 

after  the  date  of  the  process.  9 


CH-\P.   214.]  EQUITY  JURISDICTION  AND   PROCEDURE.  2279 


PLEADING. 

1  Section  12.     The  material  facts  and  circumstances  relied  on  by  the  Form  of  bin. 

2  plaintiff  shall  be  stated  briefly,  and  immaterial  and  irrelevant  matters  §§^2,'3.**' 

3  omitted.    The  bill,  unless  actually  inserted  in  a  writ,  shall  be  entitled  jjf;!^^' 

4  in  the  proper  court,  with  the  full  title  of  the  cause,  containing  the  names  ^gg|  '2%  ^  ^' 

5  and  descriptions  of  all  the  parties.    It  need  not  contain  any  address  to  p  f  •  \'l„ 

6  the  court,  or  the  usual  commencement,  or  any  prayer  for  an  answer,  for  isoMass.'is?.' 

7  general  relief  or  for  process.     Discovery  may  be  sought  by  inserting  a  227  Mass!  382! 

8  prayer  therefor  in  the  bill  or  petition  or  bj'  interrogatories.  235  Mass.  227. 

1  Section  13.     A  defence  to  a  suit  in  equity  shall  be  made  by  demurrer.  Demurrer, 

2  plea  or  answer.     A  demurrer  or  plea  need  not  contain  a  protestation  pS™"  ""^ 


1855,  194, 
l3,  4. 


3  or  concluding  prayer;   but  a  demurrer  shall  be  accompanied  by  a  cer- 

4  tificate  that  it  is  not  intended  for  delay.    An  answer,  except  to  a  bill  ^^  |  \^^' 

5  for  discovery  only,  or  a  plea,  shall  not  be  made  under  oath  or  under  F;?  JS^- 

6  seal,  and  it  need  not  contain  any  saving  of  exceptions  to  the  bill,  or  a  1883,223, 

7  prayer  to  be  dismissed  or  for  costs.    Answers  to  interrogatories  in  a  bill  ii.  l.  159.  §  13. 

8  for  discovery  shall  be  made  within  such  time  as  the  court  orders,  and  in  Mass.°3oo. 

9  questions  arising  thereon  shall  be  determined  by  the  rules  applicable  to 
10  bills  for  discovery. 

1  Section  14.     Facts  well  pleaded  in  the  answer  shall  not  be  deemed  ^'^'"''  °^  »- 

,  ,       .  ,  .  .  .       answer.      rJO 

2  to  be  admitted  unless  the  case  is  set  down  for  hearing  upon  the  bill  replication 

3  and  answer  without  the  introduction  of  evidence.    The  parties  shall  be  wis,  257, 

4  deemed  to  be  at  issue  when  the  answer  is  filed,  and  the  plaintiff  need  not  1919, 5. 

5  file  any  replication.  1920, 2.  231  Mass.  404. 

1  Section  15.     Bills,  answers,  petitions  and  other  pleadings  may  be  signature  to 

2  signed  by  the  party  or  his  attorney,  and  shall  not  require  any  other  i8's3,'223,  §  10. 

3  signature.  r.  l.  159,  §  14.  CAUen.sos. 

hearings. 

1  Section  16.     Suits  in  equity,  and  motions  and  other  applications  Hearing  by 

2  therein,  whether  interlocutory  or  final,  shall  in  the  first  instance  be  issg.^lsT's  1. 

3  heard  and  determined  by  one  justice  of  the  court.  g.  s.  113,  §  6. 

p.  S.  151,  §11.  R.  L.  159,  §  17.  137  Mass.  487. 

1883.  223,  §  2.  120  Mass.  86.  203  Mass.  159. 

1  Section  17.     For  hearings,  and  for  making,  entering  and  modifying  Court  always 

2  orders  and  decrees  in  equity  causes,  by  one  justice,  and  for  issuing  writs  °s2r,',  109,  §  1. 

3  in  such  causes,  the  courts  shall  always  be  open  in  every  county ;  and  all  ^  "|;  |i ; 

4  such  proceedings  shall  be  considered  as  taking  place  in  court  and  not  in  f|59'''2|V  s  7 

5  chambers.  o.  s.  113,  §7.  p.  s.  isi,  §12. 

1883,  223,  §  4.  R.  L.  159,  §  IS.  5  Allen,  81.  205  Mass.  529. 


!  cases 


1  Section  18.    A  justice  of  either  court  or  the  full  court  may,  if  neces-  Hearing  < 

2  sary,  hear  and  determine  cases  pending  in  a  county  other  than  that  in  anothef "" 

3  which  such  justice  or  court  is  sitting,  or  any  motion  therein;  but  a  motion  ^sm'^oo 

4  shall  not  be  so  heard  nor  a  decree  or  order  so  made  until  reasonable  i§  ^'  |j 

5  notice  thereof  has  been  given  to  the  adverse  party  or  his  counsel;   and  §§22-24. 

6  either  party  may  transmit  his  reasons  in  writing  for  or  against  the  ap-  §§  is-20.' 

7  plication  to  the  court  or  ju.stice,  who  shall  examine  the  same  and  proceed  §§  2.^-2.5.' 

8  thereon  as  if  the  parties  were  present.    All  orders  and  decrees  made  on  rI^^l.  139'.  1 35. 


2280 


EQUITY  JURISDICTION   AXD   PROCEDURE. 


[Ch.\p.  2U. 


SAUen.  SI.       such  hearings  shall  be  transmitted  to  the  clerk  m  the  proper  countv,  and 

162  Mass.  4S0.     i.ifi,-  x-x- 

be  entered  by  mm. 


Appeal  from 
final  decree. 
1859.  237,  §  2. 
G.  S.  113.  §  8. 
P.  S.  151,  §  13. 
1883,  223,  §  2. 
R.  L.  1.59,  §  19. 
1911.  2S4.  §  1. 
13  Allen,  207. 

114  Mass.  372. 

115  Mass.  115, 
334. 

116  Mass.  227. 

117  Mass.  27. 

120  Mass.  340, 
390. 

121  Mass.  127, 
568. 

123  Mass.  443. 
125  Mass.  166. 

128  Mass.  11. 

129  Mass.  435. 
150  Mass.  56. 
157  Mass.  68. 


APPEALS. 


160  Mass.  444. 

161  Mass.  593. 
171  Mass.  568. 
186  Mass.  275. 


203  Mass.  159. 

204  Mass.  448. 
206  Mass.  449. 
211  Mass.  334. 


212  Mass.  118. 
215  Mass.  506. 

222  Mass.  218. 

223  Mass.  6. 


226  Mass.  143. 
230  Mass.  500. 
233  Mass.  420. 


9 

10 


Section  19.     A  party  aggrieved  by  a  final  decree  of  a  justice  of  the  1 

supreme  judicial  court  or  a  final  decree  of  the  superior  court  may,  within  2 

twenty  days  after  the  entry  thereof,  appeal  therefrom.    An  appeal  from  3 

a  final  decree  of  a  justice  of  the  supreme  judicial  court  shall  be  entered  4 

on  the  docket  of  that  court,  and  an  appeal  from  a  final  decree  of  the  5 

superior  court  shall  forthwith  be  entered  in  the  supreme  judicial  court.  6 

\^^3en  such  appeals  have  been  entered  as  aforesaid,  all  proceedings  under  7 

such  decree  shall  be  stayed,  and  the  cause  shall  thereupon  be  pending  8 

before  the  full  court,  which  shall  hear  and  determine  the  same,  and  9 

affirm,  reverse  or  modify  the  decree  appealed  from.    Upon  the  reversal  10 

of  a  final  decree,  the  court  may  remand  the  cause  to  a  justice  of  the  su-  11 

preme  judicial  court  or  to  the  superior  court,  with  necessary  and  proper  12 

directions  for  further  proceeding  therein.  13 


Separate 
docket  for 
equity  and 
probate  ap- 
peals. 
1859,  196,  5  S3. 


Section  20.     The  clerk  of  the  court  for  the  commonwealth  shall  enter  1 

appeals  in  equity  and  probate  matters  on  a  separate  equity  and  probate  2 

docket.                                               G.  s.  113.  §  14.  3 

p.  S.  151,  §  14.  1883,  223.  §  2.  R.  L.  159.  §  20.  150  Mass.  56. 


Injunction  or 
receiver 
pending  ap- 
peal. 

1859,  237.  §  3. 
G.  S.  113.  §  9. 
P.  S.  151.  §  15. 
1883,  223,  §  2. 
R.  L.  159,  §  21. 
203  Mass.  159. 


Section  21.     Upon  an  appeal  from  a  final  decree,  the  justice  of  1 

either  court  by  whom  it  was  made  may  make  such  orders  for  the  ap-  2 

pointment  of  receivers,  and  of  injunction  or  prohibition,  or  for  continu-  3 

ing  the  same  in  force,  as  are  needful  for  the  protection  of  the  rights  of  4 

parties,  until  the  appeal  shall  be  heard  by  the  full  court,  subject  to  be  5 

modified  or  annulled  by  the  order  of  the  full  court,  upon  motion,  after  6 

the  appeal  is  taken.  7 


Modification 

of  decree  of 

superior 

court. 

1883.  223.  §  6. 

1901,  244. 

R.  L.  159,  §  22. 

203  Mass.  159. 

225  Mass.  30. 


Section  22.     After  an  appeal  has  been  taken  from  a  decree  of  the  1 

superior  court,  the  full  court  may,  by  an  order,  on  terms  or  otherwise,  2 

suspend  the  execution  or  operation  of  the  decree  appealed  from,  pending  3 

the  appeal,  and  may  modify  or  annul  any  order  made  for  the  protection  4 

of  the  rights  of  the  parties,  pending  the  appeal;  but,  until  such  order  5 

has  been  modified  or  annulled,  the  justice  of  the  superior  court  by  whom  6 

the  order  or  decree  appealed  from  was  made,  or  any  other  justice  of  said  7 

court,  may  make  any  proper  interlocutory  orders,  pending  such  appeal,  8 

including  orders  for  the  appointment  of  receivers,  of  injunction,  of  pro-  9 

hibition,  and  orders  for  continuing  in  force  such  orders  previously  made,  10 

or  for  modifying  or  dissolving  them.    The  justice  who  makes  any  such  11 

interlocutory  orders  may  enforce  them  bj'  appropriate  proceedings,  pend-  12 

ing  the  appeal.  13 


Report  of  Section  23.     Upou  an  appeal  from  a  decree  of  either  court,  the  justice 

ilga'  6?^'  ^  '■  ^y  whom  the  decree  was  made  shall  report  the  material  facts  found  by 
R^  L^  159. 5_23.  him,  if  so  requested  by  the  appellant  within  four  days  after  the  appellant 
174  Mass!  299!   has  bccn  notified  of  the  entry  of  the  decree:  otherwise,  such  report  shall 

184  Mass.  429. 


182  Mass!  lio!   be  in  the  discretion  of  the  justice.  is3  Mass.  333 


266. 


186  Mass.  83. 
188  Mass.  16. 
190  Mass.  4. 


192  Mass.  555. 

193  Mass.  200. 
199  Mass.  262,  598. 


200  Mass.  179. 
204  Mass.  378. 
211  Mass.  334. 


222  Mass.  102,332,598. 

223  Mass.  97, 
226  Mass.  349. 


Ch.\P.   214.]  EQUITY  JLTIISDICTION   .\ND   PROCEDXJKE.  2281 

1  Section  24.     Upon  an  appeal,  the  testimony  of  witnesses  who  have  Report  of 

2  been  examined  orally  before  a  justice  of  either  court  shall,  at  the  request  upTnTp"ifeai. 

3  of  any  party  made  before  any  evidence  is  offered,  be  reported  to  the  full  q*"!.'  nl'.  §  li. 

4  court.    The  courts  shall  provide  by  general  rules  for  some  convenient  fstfs.Wa  \^2^' 

5  and  effectual  means  of  ha\ing  the  same  reported  by  the  justice  by  whom  ^^  l^^i59  §^24. 

6  the  case  is  heard  or  by  a  person  designated  by  him  for  that  purpose,  iiv  Mass.  403. 

7  Except  as  provided  in  section  one  hundred  and  twenty-five  of  chapter  215  Mass!  soe! 

8  two  hundred  and  thirty-one,  no  oral  evidence  shall  be  exhibited  to  the 

9  full  court,  but  the  cause  shall  be  heard  on  appeal  upon  the  same  evidence 
10  as  on  the  original  hearing. 

1  Section  25.     Upon  an  appeal  in  a  suit  in  equity  in  which  the  evidence  Questions 

2  is  reported  to  the  full  court,  all  questions  raised  by  exceptions  taken  at  the  Sreptions 

3  hearing  shall  be  subject  to  revision  by  the  court  in  the  same  manner  as  if  and  det'ei^'' 

4  they  were  contained  in  a  bill  of  exceptions,  and  the  report  of  the  evidence  "''pl^i  ""*" 

5  shall  include,  as  part  thereof,  notes  of  any  exceptions  properly  taken  J^J^,  ns,  §  4. 

6  and  the  rulings  of  the  judge  in  respect  thereto,  and  it  shall  not  be  neces-  §  431. 

7  sary  to  file  any  bill  of  exceptions  or  to  suspend  the  entry  of  a  decree  by  1920!  2. 

8  reason  of  any  such  exceptions.  225  Mass.  sso.  236  Mass.  si.  ^^®  lass.  oi. 

1  Section  26.     A  party  aggrieved  by  an  interlocutory  decree  of  a  interiocutorj- 

2  justice  of  either  court  may,  in  like  manner,  appeal  to  the  full  court;  but  from.^'  ^'""'"' 

3  the  appeal  shall  not  suspend  the  execution  of  such  decree,  except  as  g*''!.' nl,' §  1*6. 

4  provided  in  section  twenty-two,  nor  transfer  to  the  full  court  the  entire  ^j^g  ^2^23'  V2^" 

5  cause  or  any  matter  therein  except  the  question  whether  the  interlocutory  Pq,^,!/*^'  5/^- 

6  decree  appealed  from  shall  be  affirmed,  reversed  or  modified.  103  Mass!  496. 

115  Mass.  115.  165  Mass.  1. 

125  Mass.  20.  216  Mass.  30. 

1  Section  27.     Interlocutory  decrees  not  appealed  from  shall  be  open  Revision  of 

2  to  re\'ision  upon  appeals  from  final  decrees,  so  far  only  as  it  appears  to  decrerupon^ 

3  the  full  court  that  such  final  decrees  are  erroneously  affected  thereby.      gnaf  decree! 

1S59,  237,  §  5.  127  Mass.  28.  210  Mass.  83. 

G.  S.  113,  §11.  169  Mass.  417.  214  Mass.  500. 

P.  S.  151.  §17.  189  Mass.  220.  216  Mass.  30.  380. 

1883,  223.  §  2.  191  Mass.  310.  233  Mass.  403. 

E.  L.  159,  §  26.  197  Mass.  504. 

1  Section  28.     A  party  who  has,  by  accident  or  mistake,  omitted  to  Petition  for 

2  claim  an  appeal  from  a  final  decree  within  the  time  prescribed  therefor  a'ppelii." 

3  may,  within  one  year  after  the  entry  of  the  decree  from  which  he  de-  q  ^|;  f i|;  |  J"; 

4  sires  to  appeal,  petition  the  full  court  for  leave  to  appeal,  which  may  be  J'gg^j  '223  \^i' 

5  granted  upon  terms. 

R.  L.  159.  §  28.  128  Mass.  16.  220  Mass.  532. 

121  Mass.  568.  204  Mass.  432.  226  Mass.  143. 

1  Section  29.     No  process  for  the  execution  of  a  final  decree  of  either  Execution  on 

2  court  shall  issue  until  the  expiration  of  twenty  days  after  the  entry  isso.  si^rll  9. 

3  thereof,  unless  all  parties  against  whom  such  decree  is  made  waive  an  p.  |.' 1.5?,' 1 22.' 

4  appeal  by  a  writing  filed  with  the  clerk  or  by  causing  an  entry  thereof  l^^^-  y^g- 1 1^ 

5  to  be  made  on  the  docket;  except  that  if  the  justice  bv  whose  order  the  J^P'^s^-^s. 

nil  ^      '         p  •     •  1  1  IP  11  •      ^^^  Mass.  209. 

6  final  decree  was  made  is  of  opinion  that  the  appeal  from  such  decree  is  224  Mass.  501. 

7  groundless  and  intended  merely  for  delay,  process  for  the  execution  of 

8  the  decree  may  be  awarded  notwithstanding  the  appeal. 


2282  EQUITY  JURISDICTION  AND  PROCEDURE.  [Ch.'IP.   214. 


REPORT. 

Interlocutory         SECTION  30.     If,  upon  making  an  interlocutory  decree  or  order,  the  1 

decree  or          lusticc  IS  of  opiuion  that  it  so  affects  the  merits  of  the  controversy  that  2 

order  to  %j  ±  */ 

full  court     ^    the  matter  ought,  before  further  proceedings,  to  be  determined  by  the  3 

p.' s.' 151,' §  18.'  full  court,  he  may  report  the  question  for  that  purpose,  and  stay  all  4 

R.  L.  159,  §  27.  further  proceedings  except  those  necessary  to  preserve  the  rights  of  the  5 

120  Mass!  277!     partlcS.                         165  Mass.  1.                       211  Mass.  334.                       212  Mass.  118.  6 
216  Mass.  30.                                224  Mass.  424.                                230  Mass.  526. 

kir7u™cou?t.         Section  31.     A  justice  of  either  court  by  whom  a  case  is  heard  for  1 

185^,  m,  §  i_i.  filial  decree  may  reserve  and  report  the  evidence  and  all  questions  of  law  2 

isii  223  \^2'   therein  for  the  consideration  of  the  full  court;   and  thereupon  like  pro-  3 

R.  l'.  159,  §  29.  ceedings  shall  be  had  as  upon  appeals  from  final  decrees.  4 

141  Mass.  150.  186  Mass.  83.  200  Mass.  179.  209  Mass.  470. 

1S4  Mass.  429.  192  Mass.  555.  207  Mass.  394.  224  Mass.  424. 

REMOVAL  FROM   SUPERIOR   TO   SUPREME  JUDICIAL  COURT. 

^Tfmm"^           Section  32.     If  the  defendant  in  a  suit  in  equity  in  the  superior  1 

i883"2^3°§8     court,  or  a  person  in  his  behalf,  within  ten  days  after  the  day  for  appear-  2 

R  L.  159, 1 30.  ance,  makes  affidavit  of  his  belief  that  the  matter  involved  in  the  suit  3 

equals  four  thousand  dollars  in  value,  that  his  interest  alone  or  with  the  4 

interest  of  any  other  defendant  having  a  joint  or  common  interest  with  5 

him  equals  said  value  and  that  he  has  a  substantial  defence,  and  of  his  6 

intention  to  bring  the  cause  to  a  hearing,  the  case,  with  the  papers  therein,  7 

shall,  upon  his  request  and  at  his  expense,  be  forthwith  removed  to  8 

the  supreme  judicial  court,  where  it  shall  proceed  as  if  originally  com-  9 

menced  therein.     Before  such  removal,  the  superior  court  may  make  10 

such  orders  for  the  appointment  of  receivers,  and  of  injunction  or  pro-  11 

hibition,  or  for  continuing  the  same  in  force,  as  are  necessary  for  the  12 

protection  of  the  rights  of  the  parties  until  the  case  shall  be  heard  by  the  13 

supreme  judicial  court,  subject  to  be  modified  or  annulled  by  the  order  14 

of  that  court  upon  motion  after  the  case  has  been  removed.  15 

hraHnrwith          SECTION  33.     A  justlcc  of  the  supreme  judicial  court,  if  upon  motion  1 

isss"!  MS,' 1 9.    it  appears  that  a  suit  in  equity  pending  in  the  superior  com-t  ought  2 

R.  L.  159, 1 31.  iq  ]-,g  heard  with  a  suit  or  cross  suit  in  equity  pending  in  the  supreme  3 

judicial  court,  may  order  the  suit  to  be  remoA-ed  at  the  expense  of  the  4 

applicant  from  the  superior  court  to  the  supreme  judicial  court,  where  5 

it  shall  proceed  as  if  originally  commenced  therein.  6 

ISSUES  TO   JURY. 

isJl'l™*^^'           Section  34.    The  supreme  judicial  court,  upon  request  of  a  party  1 

?859',  23'7f§'i3.  to  ail  cquity  cause  pending  therein,  may  frame  issues  of  fact  to  be  tried  2 

p' i'  ill'  I  If'  ^y  ^  i^^y  ^^*^  order  the  same  to  be  tried  in  that  court  or  in  the  superior  3 

1805.  iiu.  1 1 ,  court  in  the  county  in  which  such  cause  is  pending,  or  upon  the  request  4 

6  Pick.  376.     '  of  all  parties  in  any  other  county.            le  cra.v,  407.            102  Mass.  45.  ,5 

120  Mass.  113,244.  137  Mass.  483,  487.  180  Mass.  334. 

123  Mass.  590.  142  Mass.  161.  ISS  Mass.  10. 

128  Mass.  349.  143  Mass.  643.  221  Mass.  339. 

fumm'^TCd'"'         Section  35.     If  there  is  no  regular  sitting  of  the  supreme  judicial  1 

Ra'iM%^2s.    court  within  three  months  after  the  framing  of  such  issues,  a  justice  2 

R.  h.  159,  §  37.  thereof  may  order  the  clerk  of  the  courts  for  the  county  in  which  the  3 


Ch.\.P.   214.]  EQUITY  JURISDICTION  .\JVD   PROCEDURE.  2283 

4  cause  is  pending  to  summon  a  jury  to  try  such  issues,  and  the  proceed- 

5  ings  at  such  trial  shall  be  in  all  respects  the  same  as  in  a  trial  at  a  regular 

6  sitting. 

1  Section  36.     The  superior  court,  upon  request  of  a  party  to  an  equity  jury  issues 

2  cause  pending  therein,  may  frame  issues  of  fact  to  be  tried  by  a  jury  and  TOurt?^"""^ 

3  order  them  to  be  tried  in  the  county  in  which  such  cause  is  pending.         j^^l.  Ill]  |  Is. 

ISS  Mass.  16.  221  Mass.  339.  236  Mass.  310. 


SITTINGS   OP  THE   COURTS. 

1  Section  37.    A  justice  of  the  supreme  judicial  court  and  a  justice  Continuous 

2  of  the  superior  court  shall,  at  all  convenient  times,  sit  in  Boston  to  hear  Boston!" 

3  and  determine  suits  in  equity  and  motions  therein  arising  in  any  county.  G^i'.iis.'iii.' 

p.  S.  151,  §  30.  R.  L.  159,  §  40. 

1  Section  38.    A  justice  of  the  supreme  judicial  court  shall  sit  at  Spring-  Hearings  at 

2  field,  on  the  first  Monday  of  February,  June,  August  and  December,  to  wester"^  ""^ 

3  hear  such  matters  in  equity  as  may  be  heard  and  determined  at  chambers,  1874*339, 5 1. 

4  which  arise  in  the  counties   of   Berkshire,   Franklin,   Hampshire  and  ^- 1;  ^f^^  ^^l^ 

5  Hampden. 

miscell.\neous  provisions. 

1  Section  39.    A  justice  of  either  court  shall  not  dissolve  an  injunction  Control  of 

2  issued  by  the  other  court,  or  by  a  justice  thereof,  or  interpose  in  any  having  iSu- 

3  proceeding  in  the  equity  jurisdiction  of  the  other  court,  except  as  pro-  i883!2'23.  §  12. 

4  vided  in  sections  twenty-two,  thuty-two  and  thirty-three.  ^-  ^-  ^^^'  ^  ^~' 

1  Section  40.     Every  order  and  decree  shall  bear  date  of  the  day  when  Decree,  etc., 

2  actually  entered  by  the  clerk,  and  at  the  time  of  the  entry  he  shall  of  entrV. 

3  note  such  date  upon  the  order  or  decree  and  upon  the  docket.  G**s.'n".'§  le. 

p.  S.  151,  §21.  1883,  223,  §  2.  R.  L.  159,  §  33.  5  Allen,  81. 

1  Section  41.    The  courts  may  issue  writs  of  seisin  and  execution  in  wntsof 

2  common  form  if  such  process  is  appropriate  for  the  enforcement  of  a  IxIcutTon. 

3  decree  in  equity.  R-  s.  74,  §  12;  iis,  §  43.  g.  s.  113,  §  23. 

p.  S.  151,  §  29.  R.  L.  159,  §  39.  107  Mass.  428. 

1883,  223,  §  2.  106  Mass.  499.  233  Mass.  39. 

1  Section  42.    ^Vhere  a  bond  is  required  of  a  receiver  appointed  by  Receiver's 

2  either  court  the  provisions  of  section  seven  of  chapter  two  hundred  and  i9r7,'32. 

3  tliree  shall  apply. 

1  Section  43.    The  original  papers  in  a  suit  in  equity  pending  in  either  Taking  papers 

2  court  may  be  taken  from  the  files  in  any  county  by  counsel  of  record  issg.  loo,  §  so. 

3  of  either  part}',  for  use  before  the  court,  upon  leaving  a  memorandum  p'i'.Ui'.IM'. 

4  and  receipt  on  such  files,  containing  a  short  description  of  the  papers  so  ^^l'  j||- 1  % 

5  taken. 

REFERENCES. 

Jurisdiction  in  equity  in  various  special  matters,  such  as  informations,  see  the 
statutes  relative  to  such  matters. 

Amendment  from  equity  to  law,  and  vice  versa,  Chap.  231,  §  55. 

Form  of  return  in  equity  where  service  made  at  last  and  usual  place  of  abode, 
Chap.  223,  §  35. 


2284 


PROBATE  COTJETS. 


[Chap.  215. 


Interrogatories  in  equity,  Chap.  231,  §§  61,  6S. 

For  various  provisions  relative  to  procedure  both  at  law  and  in  equitv,  Chans 
211,  212,  213  and  231.  ^ 

§  3,  cl.  (7).    Suit  to  reach  and  apply  negotiable  warehouse  receipt.  Chap.  105,  §  31. 

§  3,  cl.  (10).  The  substantive  right  On  which  the  remedy  under  this  clause  is 
based  is  given  in  Chap.  175,  §  113. 

§  25.     Appeal  and  e.xceptions,  if  any,  to  be  entered  together.  Chap.  231,  §  96. 


CHAPTER    215 


PROBATE  COURTS. 


Sect. 

courts  and  their  jdrisdiction. 

1.  Courts  of  record,  etc. 

2.  Superior  jurisdiction. 

3.  Jurisdiction  in  general. 

4.  Same.     Separate    estate    of     married 

women,  custody  of  minors,  etc. 

5.  Same.     French  spoliation  awards. 

6.  Equity  jurisdiction. 

7.  Court  first  taking  jurisdiction  to  retain 

it. 

8.  Jurisdiction  of  trusts. 


9.  Person  aggrieved   may  appeal    to    su- 
preme judicial  court. 

10.  Appeal  to  be  heard  by  full  court. 

11.  Report  of  facts. 

12.  E^-idence  upon  appeal. 

13.  Judge  may  reserve  and  report  case  to 

the  full  court. 

14.  Revision    of    interlocutor)-  decrees   on 

appeal. 

15.  Petition  for  late  appeal. 

16.  Jury  issues. 

17.  Insolvent  estates. 

18.  Court   may   appoint    stenographer    to 

take  testimony. 

19.  Consolidation  of  appeals  by  appellant. 

20.  Consolidation  of  appeals  by  court. 

21.  Appeals  to  go  on  same  docket  as  equity 

cases. 

22.  Effect   of   appeal    upon    act    appealed 

from. 

23.  Same,  in  equity  cases. 

24.  Same,  in  separate  support  and  custody 

cases. 

25.  Same,  in  case  of  removal  of  executor, 

etc. 

26.  Same  subject. 

27.  Modification  of  decree  appealed  from. 

28.  Reversal  or  affirmance  of  decree   ap- 

pealed from. 

29.  Waiver  of   or  failure    to    complete    or 

prosecute  appeal. 

GENERAL.  PROVISIONS. 

30.  Rules  and  forms. 

31.  Notice  of  hearings,  etc. 


Sect. 

32.  Transaction  of  business  out  of  court. 

33.  Same,  ex  parte  matters. 

34.  Power  to  enforce  orders  and  decrees. 

35.  Revocation  of  warrants  and   commis- 

sions. 

36.  Decrees  to  be  in  writing,  and  with  wills, 

etc.,  to  be  recorded. 

37.  Docket  and  index. 

38.  Oaths. 

39.  Probate  courts  to  determine  and  en- 

force payment  for  services  in  connec- 
tion with  administration  of  estates, 
etc. 

40.  Enforcement  of  delivery  of  property  by 

executors,  etc.,  who  resign,  etc. 

41.  Temporary  investments. 

42.  Appearances. 

43.  Interrogatories. 

44.  Persons  suspected  of  concealing  prop- 

erty may  be  examined  imder  oath. 

45.  Costs. 

46.  Seri'ice  of  citation  by  registered  mail. 

47.  Waiver  of  notice. 

48.  Appointment  of  one  appraiser. 

49.  Selection  of  newspapers  for  notices. 

50.  Receipts,  etc.,  to  executors,  etc.,  may 

be  recorded. 

51.  Copy  of  certain  papers  without  charge. 

52.  Original  will  may  be  taken  from  regis- 

try. 

53.  Court  rooms,  rooms  for  record,  etc.,  to 

be  provided. 

54.  Same  subject. 

55.  Preservation  of  dockets,  etc. 

56.  Expense  of  recording  probate  proceed- 

ings in  Suffolk. 

SESSIONS    op   THE    COURTS. 

57.  To  maintain  order  and  punish  for  con- 

tempt. 

58.  Courts  always  open. 

59.  Adjournment. 

60.  No    courts    on    holidays    or    election 

days. 

61.  Court  not  to  be  held  without  register, 

etc. 

62.  When  and  where  courts  are  held. 

63.  Changes  in  places  of  holding  courts. 


ClL\P.   215.]  PROBATE   COURTS.  2285 


COTJRTS  AND  THEIR  JURISDICTION. 

1  Section  1.    Probate  courts  shall  be  courts  of  record,  and  the  judge  Courts  of 

2  and  the  register  of  probate  and  insoh'ency  for  each  county  shall  be,  re-  ^^"^^^^^(f,'"' 

3  spectively,  the  judge  and  the  register  of  the  probate  court  of  such  county.  ^^  ^'  ^• 

1817. 190,  §§  1.  2.  G.  S.  117,  §  1.  R.  L.  162.  J  1. 

R.  S.  83,  §1  1,  20.  1862,  68,  §  3.  12  Gray,  147. 

1858,  93,  §  1.  P.  S.  156,  §  1.  227  Mass.  77. 

1  Section  2.     Probate  courts  shall  be  courts  of  superior  and  general  fur?S?tion. 

2  jurisdiction  with  reference  to  all  cases  and  matters  in  which  they  have  Jf^L'tel'lt' 

3  jurisdiction,  and  no  order,  decree,  sentence,  warrant,  writ  or  process  J??  Mass.' 205. 

>  1         •  1  1    1  .1  1  ,  ,.      ,K        .  188  Mass.  1.86. 

4  made,  issued  or  pronounced  by  them  need  set  out  any  adjudication  192  Mass.  soe. 

5  or  circumstances  with  greater  particularity  than  would  be  required  in  207  Mass!  91. ' 

6  other  courts  of  superior  and  general  jurisdiction,  and  the  like  presump-  iog.^''^^'  ^^^' 

7  tion  shall  be  made  in  favor  of  proceedings  of  the  probate  courts  as  would  fg?.^'"''''  ^^' 

8  be  made  in  favor  of  proceedings  of  other  courts  of  superior  and  general  2I7  HlH  fy^' 

9  jiu-isdiction.  154  u.  s.  34.  215  u.  s.  203. 

1  Section  3.     Probate  courts  shall  have  jurisdiction  of  probate  of  wills.  Jurisdiction 

2  of  granting  administration  on  the  estates  of  persons  who  at  the  time  i7l™4"§  1. 

3  of  their  decease  were  inhabitants  of  or  resident  in  their  respective  counties  iFL^J.'64,''§  1;^' 

4  and  of  persons  who  die  out  of  the  commonwealth  lea^•ing  estate  to  f|5P256^§  i- 

5  be  administered  ^sithin  their  respective  counties;  of  the  appointment  of  Q^gMv  s , 

6  guardians  and  conservators;  of  all  matters  relative  to  the  estates  of  such  P-  s.'  ise,'  §  2'. 

7  deceased  persons  and  wards;   of  petitions  for  the  adoption  of  children,  1901!  125] 

8  and  for  change  of  names;  and  of  such  other  matters  as  have  been  or  may  r.  L'.^i45,  §  40; 

9  be  placed  within  their  jurisdiction.  ^^^'  ^  ^- 


1903,  96. 

9  Pick.  259. 

4  Allen,  410. 

137  Mass.  195. 

1905,  127. 

4  Gush.  510. 

102  Mass.  186. 

140  Mass.  194. 

1907,  169,  §  3. 

8  Cush.  529. 

126  Mass.  384. 

192  Mass.  596. 

1915.23, 

10  Cush.  17. 

128  Mass.  140, 

195  Mass.  133. 

5  Pick.  20,  65, 

2  Gray,  228. 

129  Mass.  513, 

218  Mass.  227. 

370.  519. 

3  Gray,  536. 

131  Mass.  477. 

221  Mass.  178. 

1  Section  4.     Probate  courts  shall  have  exclusive  original  jurisdiction  Same.  Sep- 

2  of  petitions  of  married  women  relati\'e  to  their  separate  estate,  and  of  of  mlSed" 

3  petitions  or  applications  relative  to  the  care,  custody,  education  and  "ody'of'  *'"^' 

4  maintenance  of  minor  children  provided  for  by  sections  thirty  and  5's87.1'32!'^§  2 

5  thirty-seven  of  chapter  two  hundred  and  nine.  R.  l.  162,  §  4. 

1  Section  5.    Probate  courts  shall  have  exclusive  original  jurisdiction  Same.  French 

2  of  all  matters  relative  to  the  administration  of  moneys  appropriated  by  lw°=irds,°° 

3  the  congress  of  the  United  States  on  account  of  French  spoliations.        ^®°^'  ^^^'  ^  ^' 

1  Section  6.     Probate  courts  shall  have  jurisdiction  in  equity,  con-  Equity  juris- 

2  current  with  the  supreme  judicial  and  superior  courts,  of  all  cases  and  r.'^s.°69,  §  12. 

3  matters  relati^•e  to  the  administration  of  the  estates  of  deceased  persons,  5sso,  103.  ^  ''^' 

4  to  wills,  including  questions  arising  under  sections  twenty  and  twenty-  ^jg^j  ^^^^  I"/- 

5  one  of  chapter  one  hundred  and  ninety-one,  or  to  trusts  created  by  1*^2,  iie,    ^ 

6  will  or  other  written  instrument,  of  all  matters  relative  to  guardianship  isio!  10a 

7  and  conservatorship  and  of  all  other  matters  of  which  they  now  have  279,  §44,' 

8  or  may  hereafter  be  given  jurisdiction.    Such  jurisdiction  may  be  exer-  isnMass.'sss. 

9  cised  upon  petition  according  to  the  usual  course  of  procedure  in  probate  I44  Masl!  ils! 
10  courts. 

175  Mass.  199,  265.  183  Mass.  521.  192  Mass,  596.  211  Mass.  494. 

181  Mass.  501.  186  Mass.  244.  203  Mass.  94.  226  Mass.  459. 


2286 


PROBATE   COUETS. 


[Chap.  215. 


1. 


Court  first 
taking  juris- 
diction to 
retain  it. 
1785,  12, 
1817,  190, 
§§  1.  10. 
R.  S.  62,  §  20; 
64,  §3;  79. 
§31;  83,  §  14. 
G.S.  117.  §3. 
P.  S.  156.  §  3. 
E.  L.  162.  §  6. 


Section  7.    If  a  case  is  within  the  jurisdiction  of  the  probate  courts  1 

of  two  or  more  counties,  the  court  first  taking  cognizance  thereof  by  the  2 

commencement  of  proceedings  therein  shall  retain  jurisdiction  thereof,  3 

and  shall  exclude  the  jurisdiction  of  the  probate  courts  of  all  other  4 

counties;  and  the  administration,  guardianship  or  conservatorship  first  5 

granted  shall  extend  to  all  the  estate  of  the  deceased  or  ward  in  the  6 

commonwealth.                                            i9i5. 23.  7 


Jimsdiction 
of  trusts. 
1874,  352,  §  3. 
P.  S.  141,  §  28. 
R.  L.  162.  §  7. 


Section  8.    All  matters  of  trust  of  which  probate  courts  have  jiu-is-  1 

diction,  except  those  arising  under  wills,  shall  be  •within  the  jurisdiction  2 

of  the  probate  court  of  any  county  where  any  of  the  parties  interested  in  3 

the  trust  reside,  or  where  any  of  the  land  held  in  trust  is  situated;  but  4 

such  jurisdiction,  when  once  assumed,  shall  exclude  the  probate  court  5 

of  any  other  county  from  taking  jurisdiction  of  any  matter  subsequently  6 

arising  in  relation  to  the  same  trust.  7 


Person 

aggrieved  may 
appeal  to 
supre-me 
judicial  court. 
1692-3,  14,  §  1; 
46.  §  1. 
169G.  8.  §  2. 
170O-1.  5. 
1719-20, 
10,  §  5. 


APPEALS. 

Section  9.     A  person  aggrieved  by  an  order,  decree  or  denial  of  a  1 

probate  court  made  after  this  chapter  takes  effect,  may,  within  twenty  2 

days  after  the  entry  thereof,  appeal  from  the  same  to  the  supreme  judi-  3 

cial  court,  and  the  appeal  shall  be  heard  and  determined  by  the  full  4 

court,  which  shall  have  like  powers  and  authority  in  respect  thereto  as  5 

upon  an  appeal  in  a  suit  in  equity  under  the  general  equity  jurisdiction.  6 


1783.46.  §§  3.4. 

1817,  190,  §§  6,  7. 

R.  S.  83,  §§  33,  34.  36. 

G.  S.  117.  §§  7-9. 

P.  S.  156.  |§  5-7. 

1888.  290.  §  1. 

R.  L.  162.  §§  8-10. 

1917.  279.  §  27. 

1918.357,  §  401. 

1919,5;  17;  274,  §11,10,11. 

1920,  2. 

2  Mass.  140. 
9  Mass.  386. 

3  Pick.  443. 

4  Pick.  33. 
16  Pick.  264. 
18  Pick.  1,  285. 
6  Met.  194. 

11  Met.  390. 


4  Gush.  408. 
8  Gush.  529. 
1  Gray,  518. 
6  Gray,  137. 
13  Gray,  336. 
16  Gray,  577. 
3  Allen.  556. 
10  Allen,  357. 
Ill  Mass.  346. 
118  Mass.  110. 
123  Mass.  270. 

128  Mass.  692. 

129  Mass.  527. 
140  Mass.  596. 

143  Mass.  234. 

144  Mass.  135. 

146  Mass.  373. 

147  Mass.  204. 


148  Mass.  421. 
154  Mass.  574. 
170  Mass.  93. 
184  Mass.  394. 
186  Mass.  420. 
190  Mass.  459. 
195  Mass.  436. 
198  Mass.  136. 
203  Mass.  556. 
211  Mass.  494. 
218  Mass.  33. 
221  Mass.  IDS. 

223  Mass.  6. 

224  Mass.  145. 
228  Mass.  39.  466. 

232  Mass.  259,  269,  500. 

235  Mass.  33. 

236  Mass.  326. 


Appeal  to  be 
heard  by  full 
court. 
1719-20, 
10.  §  5. 
1783,46.  §  4. 
1817,  190,  §  7. 
R.  S.  83. 
§§  36,  37. 
G.S.  117,  I  9. 
P.S.  156, 
§§  7,8. 
1888,  290,  §  1. 


Section  10.     The  appeal  shall  be  pending  before  the  full  court  as  1 

soon  as  it  has  been  filed  in  the  probate  court,  and  proper  copies  of  papers  2 

in  the  proceeding,  as  specified  in  section  eleven  of  chapter  two  hundred  3 

and  twelve,  have  been  prepared  by  the  register  and  transmitted  to  the  4 

supreme  judicial  court  and  entered   in  the  docket  of   the  full  court  5 

under  section  one  hundred  and  thirty-five  of  chapter  two  hmidred  and  6 

thirty-one.                                           R.  l.  102.  §§  10. 11.  7 

1919, 17;  274,  §§2,  10;  333,  §§30,31.  1920,2.  128  Mass.  11.  236  Mass.  326. 


Report  of  facts. 
1919,  274,  §  3. 
174  Mass.  299. 


Section  11.     Upon  appeal  the  judge  by  whom  the  order,  decree  or  1 

denial  was  made  shall  report  the  material  facts  found  by  him,  if  so  re-  2 

quested  by  the  appellant  witliin  four  days  after  the  appellant  has  notice  3 

of  such  order,  decree  or  denial;   otherwise  such  report  shall  be  in  the  4 

discretion  of  the  judge.  5 


Evidence  upon 

appeal. 

1919,  274,  §  4. 


Section  12.  Upon  the  appeal,  the  e\idence  and  all  questions  relating 
thereto  shall  be  governed  by  sections  twenty-four  and  twenty-five  of 
chapter  two  hundred  and  fourteen  and  section  one  hundred  and  twenty- 
five  of  chapter  two  hmidred  and  thirty-one. 


Chap.  215.]  probate  courts.  2287 


may 


1  Section  13.     A  judge  of  the  probate  court  by  whom  a  case  or  matter  Judge 

2  is  heard  for  final  determination  may  reserve  and  report  the  evidence  and  fepo'rrcase''to 

3  all  questions  of  law  therein  for  consideration  of  the  full  court,  and  there-  'i9i9,"274°§'5 

4  upon  like  proceedings  shall  be  had  as  upon  appeal.    And  if,  upon  making  ^°^  ^^'^^-  ^^'^■ 

5  an  interlocutory  decree  or  order,  he  is  of  opinion  that  it  so  affects  the 

6  merits  of  the  contro\'ersy  that  the  matter  ought,  before  further  pro- 

7  ceedings,  to  be  determined  by  the  full  court,  he  may  report  the  question 

8  for  that  purpose,  and  stay  all  further  proceedings  except  such  as  are 

9  necessary  to  preserve  the  rights  of  the  parties. 

1  Section  14.     Interlocutory  decrees  not  appealed  from  shall  be  open  Revision  of 

2  to  revision  upon  appeals  from  final  decrees  so  far  only  as  it  appears  to  JfecTces on"^ 

3  the  full  court  that  such  final  decrees  are  erroneously  affected  thereby.        19191*274,  §  6. 

1  Section  15.     A  person  who  has,  by  accident  or  mistake,  omitted  to  Petition  for 

2  claim  an  appeal  from  a  final  decree  within  the  time  prescribed  therefor  mg-lor'' 

3  may,  within  one  year  after  the  entry  of  the  decree  from  which  he  de-  1783,46,  §4. 

4  sires  to  appeal,  petition  the  full  court  for  leave  to  appeal,  which  may  be  !*'-■  ^^■ 

5  granted  upon  terms.  isi7,  loo,  §§  r.  s. 

R.  S.  S3,  §§  39-42.  14  Grav,  279.  223  Mass.  297. 

G.  S.  1 17,  §§  1 1-13.  7  Allen,  242.  225  Mass.  4S7. 

P.  S.  156,  §§9, 10.  13  Allen,  207.  229  Mass.  508,  537. 

1890,  261,  4  2.  139  Mass.  190.  230  Mass.  14. 

R.  L.  162,  ||  13,  14.  145  Mass.  287.  231  Mass.  258. 

1919,  274.  §§  6,  10.  153  Mass.  8.  232  Mass.  525. 

1  Gray,  518.  192  Mass.  126.  233  Mass.  136. 

1  Section  16.    A  probate  court  in  any  proceeding,  upon  the  applica-  jury  issues. 

2  tion  of  a  party  and  in  accordance  with  the  practice  established  by  the  isiri  196,^*7. 

3  supreme  judicial  court  in  like  cases,  may  direct  tliat  any  issues  of  fact  §;  |;  fuf^fg. 

4  shall  be  tried  by  a  jury  in  the  superior  court  for  the  same  county,  or,  if  p^^^'i^j^o'j^fsi 

5  there  shall  not  be  any  regular  sitting  for  such  trial  %vithin  tlu-ee  months  isss,  ii6','§  1. 

6  after  such  order,  or  by  consent  of  the  parties,  in  any  otlier  counts-.    The  «  25. 26.' 

•  •  ''•  1Q172  70    S  S'' 

7  form  of  such  issues  shall  be  settled  in  the  probate  court,  and  certified  1919!  274,' 

8  copies  of  the  issues  and  other  material  papers  in  the  case  shall  be  entered  ilo'^Mis3°'277. 

9  by  the  applicant  in  the  superior  court  forthwith,  or  within  such  time  \ll  lllll\  3^°; 

10  as  the  probate  court  may  direct,  but  the  same  may  be  entered  by  any  {jl^i^ggH*- 

11  other  party;  and,  if  the  same  shall  not  so  be  entered,  the  probate  court  9o^  ' 

12  may  discharge  the  order  for  a  trial.     On  motion  of  any  party  in  the  iss  Mass!  le. ' 

13  superior  court  the  issues  shall  be  advanced  for  a  speedy  trial.    Questions  221  Mass!  339! 

14  of  law  arising  upon  the  trial  of  any  such  issues  may  be  considered  and  Hi  Mass.'  ils. 

15  determined  by  the  supreme  judicial  court  in  the  same  manner  and  with 

16  like  effect  as  in  actions  at  law  tried  in  the  superior  court. 

1  Section  17.     In  the  case  of  an  estate  of  a  deceased  person  represented  e°tTte^s^"* 

2  insolvent,  if  the  court,  instead  of  appointing  commissioners  to  receive  i^^®-  ^''-i.  §  9- 

3  and  examine  the  claims  of  creditors  against  the  estate,  receives  and  ex- 

4  amines  such  claims  itself,  the  provisions  of  this  chapter,  so  far  as  applica- 

5  ble,  shall  govern  the  proceedings  for  proof  of  the  same  and  appeals  from 

6  the  allowance  or  disallowance  thereof,  exclusive  of  the  provisions  of 

7  sections  eleven  and  sixteen  of  chapter  one  hundred  and  ninety-eight. ' 

1  Section  18.    At  the  trial  of  any  issue  of  fact  in  a  probate  court  the  Court  may 

2  presiding  judge  may  appoint  a  stenographer,  who  shall  be  sworn  and  stmographer 

3  shall  attend  the  trial,  or  such  part  thereof  as  the  judge  may  direct,  and  reo'ify.'^  "'^"' 

4  perform  like  duties  and  receive  the  same  compensation  therefor  as  a  ^®^^'  ^^^'  ^  ^^■ 

5  stenographer  appointed  by  the  superior  court  who  is  not  on  salary;  and 


2288 


PROBATE  COURTS. 


[Chap.  215. 


the  sums  so  payable  for  his  attendance  at  court  and  for  any  transcript  6 
of  his  notes  or  part  thereof  furnished  to  the  judge  by  his  direction  shall  7 
be  paid  by  the  county  upon  the  certificate  of  the  judge.  8 


S°appra'is'by  Section  19.  An  appellant  from  decrees  of  a  probate  coiu-t  settling 
issll'lga  §  4  different  accounts  of  an  executor,  administrator,  guardian,  conservatoi', 
wis'  23^'  ^  ^^'  trustee  or  receiver  may  unite  his  appeals  in  one  notice  of  appeal,  and  they 


shall  thereupon  be  entered  as  one  appeal  in  the  supreme  judicial  court; 
and  an  appeal  taken  by  another  appellant  from  any  of  the  same  decrees, 
or  from  another  decree  made  at  the  same  time  or  earlier,  settling  any 
other  account  of  such  fiduciary,  may  be  entered  in  the  supreme  judi- 
cial court  as  part  of  the  matter  comprised  in  the  appeal  pre\'iously 
entered.  The  court  may,  upon  appeal,  deal  with  such  different  accounts 
as  if  they  formed  one  continuous  account,  and  may  give  effect  to  any  10 
alterations  which  it  may  make  in  any  accoimt  by  altering  the  balance  of  11 
the  last  account  without  altering  the  balance  of  any  previous  account.      12 


S°appeffby°        Section  20.     The  supreme  judicial  court  may  at  any  time,  upon 
isssSoo,  §  4    terms,  consolidate  any  separate  appeals  from  a  probate  court  pending 
R.  L.  1G2, 1 27.  tlierein,  and  may  thereafter  deal  with  such  consolidated  appeals  to- 
gether or  otherwise,  as  justice  requires. 


OTsamldofket       Section  21.     Appeals  and  petitions  therefor  shall  be  entered  on  the     1 
cases""^  same  docket  with  cases  in  equity,  and  shall  have  the  same  rights  as  to    2 

G.  s.  117,  §  14.  hearing  and  determination  as  such  cases.  3 


p.  S.  156,  I  11. 
R.  L.  1C2,  §  15. 


162  Mass.  450. 
19S  Mass.  401. 


206  Mass.  395. 
224  Mass.  427. 


Effect  of 
appeal  upon 
act  appealed 
from. 

1783,46,  %5. 
1817,  190,  §  9. 
R.  S.  83,  §  43. 
G.  S.  117,  §  15. 
1860,  189. 
P.  S.  156,  §  12. 
R.  L.  162,  §  16. 
1919,274,  I  1. 
18  Pick.  1. 
4  Cush.  46. 
16  Gray,  577. 
128  Mass.  578. 
136  Mass.  297. 
144  Mass.  415. 


Section  22.     After  an  appeal  has  been  claimed  and  filed  in  the  reg-  1 

istry  of  probate,  all  proceedings  in  pursuance  of  the  act  appealed  from  2 

shall,  except  as  otherwase  expressly  provided,  be  stayed  until  the  deter-  3 

mination  thereof  by  the  supreme  judicial  court;  but  if,  upon  such  appeal,  4 

such  act  is  affirmed,  it  shall  thereafter  be  of  full  force  and  validity.    An  5 

appeal  from  an  interlocutory  order  or  decree,  however,  shall  not  suspend  6 

proceedings  under  the  same  pending  the  appeal,  except  as  otherwise  ex-  7 

pressly  provided  by  law,  but  an  appeal  from  an  order  granting  or  refusing  8 

jury  issues  shall  be  heard  and  determined  by  the  full  court  without  await-  9 

ing  further  proceedings  in  the  probate  court.                i53  Mass.  s.  10 


175  Mass.  483. 
186  Mass.  59. 


211  Mass.  494. 
219  Mass.  178. 


221  Mass.  108. 
227  Mass.  303. 


fqmty'?ases.  SECTION  23.     An  appeal  from  a  final  or  interlocutory  order  or  decree     1 

R  ^L  tel  1 17  '™-  equity  of  a  probate  court  made  in  the  exercise  of  any  jurisdiction  in  2 

211  Mass.  494.    equity  shall  not  suspend  or  stay  proceedings  under  such  order  or  decree  3 

pending  the  appeal.    But  the  probate  court  or  a  justice  of  the  supreme  4 

judicial  court,  in  case  of  such  appeal,  may  stay  all  proceedings  under  5 

such  order  or  decree  and  make  necessary  or  proper  orders  to  protect  the  6 

rights  of  persons  interested  pending  the  appeal;    and  any  such  order  of  7 

the  probate  court  for  a  stay  of  proceedings  or  for  protection  of  any  sucli  8 

rights  may  be  varied  or  discharged  by  a  justice  of  the  supreme  judicial  9 
court  upon  motion,  and  sliall  not  be  otherwise  subject  to  an  appeal.          10 


Same,  in 
separate  sup- 
port and  cus- 
tody cases. 

p?s!'f56,Vi3.   seven  of  chapter  two  hundred  and  nine. 

R.  L.  162.  §§  18,  19.         1919,  274,  §§  10, 12. 
1907,  266.  184  Mass.  488. 


Section  24.     The  preceding  section  shall  apply  to  orders  or  decrees     1 
of  probate  courts  in  proceedings  under  sections  thirty-two  and  thirty-    2 

1890,  261,  §§  1,  3.  3 


195  Mass.  436. 
198  Mass.  136. 


Chap.  215.]  probate  courts.  2289 

1  Section  25.     A  decree  of  a  probate  court  remo\ang  an  executor,  ad-  f^s'S^of  removal 

2  ministrator,  guardian,  conservator,  trustee  or  receiver  shall  have  effect,  of^executor, 

3  notwithstanding  an  appeal  therefrom,  until  otherwise  ordered  by  a  jus-  iseo.  iso. 

4  tice  of  the  supreme  judicial  court.    The  probate  court  may  in  such  case  §§"i-3. 

5  appoint  a  successor  to  the  person  removed,  and  tlie  latter  shall  forth-  p.  s.'r56,§  i4. 

6  vdih  deliver  all  the  property  of  the  estate  held  by  him  to  his  successor,  fg-jg;  23'"'  ^  ""• 

7  who  sliall  proceed  in  the  performance  of  his  duties  in  like  manner  as  J*^  Mass,  226. 

8  if  no  appeal  had  been  taken;  but  if  the  decree  of  remoA'al  is  reversed  by  232  Mass.  259. 

9  a  final  decree  of  the  supreme  judicial  court,  the  powers  of  such  successor 

10  shall  thereupon  cease  and  he  shall  forthwith  deliver  to  his  predecessor 

1 1  in  the  trust,  or  to  such  person  as  the  court  may  order,  all  property  of 

12  the  estate  in  his  hands. 

1  Section  26.     A  decree  of  a  probate  court  made  under  the  preced-  f|™  fgg^^"*' 

2  ing  section  shall  have  effect,  notwithstanding  an  appeal  therefrom,  until  p^^^'/g*''!,*; 

3  otherwise  finally  determined  by  the  supreme  judicial  court.  R.  l-  i62,'§  si. 

1  Section  27.     After  an  appeal  is  claimed  from  an  order  or  decree  Modification 

2  referred  to  in  the  two  preceding  sections,  and  before  such  appeal  has  been  peaMfrom. 

3  finally  determined,  a  justice  of  the  supreme  judicial  court  may  suspend  p^s^'/s^e!^^ 

4  or  modify  such  order  or  decree  during  the  pendency  of  such  appeal.  ^-  ^-  ^®^'  ^  ^^• 

1  Section  28.     The  supreme  judicial  court  may,  upon  appeal,  reverse  Reversal  or 

2  or  affirm,  in  whole  or  in  part,  any  decree  or  order  of  the  probate  court,  decresTap-  ° 

3  and  may  enter  such  decree  thereon  as  the  probate  court  ought  to  have  ri!''ai3™§™4. 

4  entered,  may  remand  the  case  for  further  proceedings,  or  make  any  other  p|;  Jgg'  |  Jf; 

5  order  therein  as  law  and  justice  may  require.  R-  l-  x62,  §  23. 

146  Mass.  373.  170  Mass.  295.  184  Mass.  394.  226  Mass.  231. 

167  Mass.  338.  177  Mass.  238.  204  Mass.  394.  228  Mass.  236. 

1  Section  29.     If  an  appellant  fails  to  pay  the  entry  fee  in  the  supreme  waiver  of  or 

2  judicial  court  or  otherwise  fails  to  prosecute  his  appeal,  the  supreme  p1U"'^or  prose- 

3  judicial  court,  or  a  justice  thereof,  may,  upon  motion  of  any  person  inter-  5719-20!°'''' 

4  ested,  affirm  the  former  decree  or  order,  or  make  such  other  order  as  law  J783  46,  §  4. 

5  and  justice  may  require.     If  the  appellant  waiv'es  his  appeal  in  writing  jj*^|'||"i|J- 

6  before  the  copies  have  been  transmitted  to  the  supreme  judicial  court,  ^v^gi^J' 

7  the  probate  court  may  proceed  as  if  no  appeal  had  been  taken;   or  if  he  i88o,'i9.' 

8  fails  to  cause  the  necessary  copies  to  be  prepared  or  otherwi.se  fails  to  §j'i2,  is. 

9  perfect  his  appeal,  the  probate  court  from  which  the  appeal  was  taken  "j  16, 24^.' 

10  may,  upon  petition  of  any  person  interested,  and  upon  such  notice  to  tlie  ]g^  J|j!^^;  |J; 

11  appellant  as  the  probate  court  shall  order,  dismiss  the  appeal  and  affirm  i^s  Mass.  s. 

12  the  decree  or  order  appealed  from,  and  further  proceed  as  if  no  appeal 

13  had  been  taken. 

GENERAL   PROVISIONS. 

1  Section  30.     The  judges  of  the  probate  courts  or  a  majority  of  them  Rules  and 

2  shall  from  time  to  time  make  rules  for  regulating  the  practice  and  for  r"s.^s3,  §  s. 

3  conducting  the  business  in  their  courts  in  all  cases  not  expressly  provided  p.' s.' 131;,' 1 22.' 

4  for  by  law  and  shall  prescribe  forms,  and,  as  soon  as  convenient  after  iI^l.  let,  §  29. 

5  making  or  prescribing  them,  shall  submit  a  copy  of  their  rules,  forms  and  i^s  Aiass.  54.3. 

6  course  of  proceedings  to  the  supreme  judicial  court,  which  may  alter  227  Mass.  -7. 

7  and  amend  them,  and  from  time  to  time  make  such  other  rules  and 

8  forms  for  regulating  the  proceedings  in  the  probate  court  as  it  considers 

9  necessary  in  order  to  secure  regularity  and  uniformity. 


2290 


PROBATE   COURTS. 


[Ch.\p.  215. 


hearfngs^etc          SECTION  31.     The   supremc  judicial  court  and   the  probate  courts  1 

r^l1I2'\30  ^^^'^  make  rules  requiring  notice  of  any  hearing,  motion  or  other  pro-  2 

201  Mass.' 23.     cccding  before  said  courts  to  be  given  to  parties  interested  or  to  the  3 

attorney's  of  record  therefor.  4 


Transaction  of 
business  out 
of  court. 

1869,  424. 

1870,  275. 

P.  S.  156,  §  24. 
R.  L.  162,  §  31. 


Section  32.  Judges  of  the  probate  courts  may  transact  business  out 
of  court  at  any  time  and  place,  if  all  parties  entitled  to  notice  assent 
thereto  in  writing  or  voluntarily  appear;  and  in  such  cases  their  decrees 
shall  be  entered  as  of  such  sessions  of  the  court  as  the  convenience  of  the 
parties  may  require. 


mauerr  '""^'^  SECTION  33.  Ordcrs  of  notice  and  other  oflScial  acts  which  are  passed  1 
G  i'  117^*23  ^s  of  course  and  which  do  not  require  previous  notice  to  an  adverse  2 
E  L  Ye'  Vl''  P^^tJ'  ™^^'  ^^  issued  and  performed  at  any  time.  3 


fnfOTce'orders  SECTION  34.  Probate  courts  shall  have  like  power  and  authority  for 
isgi'^r/ll^  enforcing  orders,  sentences  and  decrees  made  or  pronounced  in  the  exer- 
R.  l".  162, 1 33.  cise  of  any  jurisdiction  vested  in  them,  and  for  punishing  contempts  of 
such  orders,  sentences  and  decrees  and  other  contempts  of  their  author- 
ity, as  are  vested  for  such  or  similar  purposes  in  the  supreme  judicial 
or  superior  court  in  equity  in  relation  to  any  suit  in  equity  pending 
therein. 


wImmiTnd'  Section  35.  A  warrant  or  commission  for  the  appraisal  of  an  estate, 
R"s"sir'ni  ^°''  examining  the  claims  against  insolvent  estates,  for  the  partition  of 
G.  s.  117, 1 24.  land  or  for  the  assignment  of  dower  or  curtesy  or  other  interests  in  land, 
R.  L.  162,  §  34.  may  be  revoked  by  the  court  for  sufficient  cause,  and  a  new  commission 
may  be  issued  or  other  appropriate  proceedings  taken. 


Decrees  to  be 
in  writing,  and 
with  wills, 
etc.,  to  be 
recorded. 
R.  S.  83.  §  7. 
G.  S.  117,  §  21. 
P.  S.  156,  §  27. 
R.  L.  162,  §  35. 
6  Met.  3G0. 
195  Mass.  187. 


Section  36.     Decrees  and  orders  of  probate  courts  shall  be  in  WTiting,  1 

and  the  registers  shall  record  in  books  kept  therefor  all  such  decrees  and  2 

orders,  all  wills  proved  in  the  court,  with  the  probate  thereof,  all  let-  3 

ters  testamentary  and  of  administration,  all  warrants,  returns,  reports,  4 

accounts  and  bonds,  and  all  other  acts  and  proceedings  required  to  be  5 

recorded  by  the  rules  of  the  court  or  by  order  of  the  judge.  6 


Docket  and 
index. 
1881,  215,  § 
P.  S.  156,  § 
R.  L.  162,  i 


Section  37.     Each  register  shall  keep  a  docket  of  all  cases  and  matters  1 

2^8    in  his  court,  and  shall  enter  therein  e^^ery  case  or  matter  by  its  appro-  2 

I  36.  priate  title  and  number,  brief  memoranda  of  all  proceedings  had  and  3 

papers  filed  therein,  the  dates  of  such  proceedings  or  filing  of  such  papers,  4 

and  references  to  the  places  in  which  the  proceedings  or  papers  are  5 

recorded,  if  there  is  a  record  thereof.     He  shall  also  keep  a  separate  6 

alphabetical  index  of  all  such  cases  and  matters  which  shall  refer  both  7 

to  said  docket  and  to  the  files  of  the  court.    Such  docket  and  index  shall  8 

be  open  to  public  inspection  at  all  reasonable  times.  9 


Oaths. 

R.  S.  83,  §  30. 
1851,  29. 
1852,241. 
1858,  93,  §  7. 
G.  S.  14,  §34; 
117,  §  28; 
119,  §  12. 
1871,  122,  §  1. 
P.  S.  18,  S  1; 
156,  §  30; 
158,  §  14. 


Section  38.  Oaths  required  in  proceedings  in  probate  courts  may 
be  administered  by  the  judge,  register  or  assistant  register  in  or  out  of 
court  or  by  a  justice  of  the  peace,  notary  public  or  special  commissioner, 
and,  when  administered  out  of  court,  a  certificate  thereof  shall  be  re- 
turned and  filed  or  recorded  with  the  proceedings;  but  the  judge  may 
require  any  such  oath  to  be  taken  before  him  in  open  court. 

1S83,  252,  §  1.  18S9,  197,  §  1.  1806,  476,  §  1.  R.  L.  162,  §  37. 


CllXP.   215.]  PROBATE  COUETS.  2291 

1  Section  39.     Probate  courts  may  ascertain  and  determine  the  amount  Probate  courts 

rt     ^  J.  .  .  p  .  p  ,  to  deterniine 

2  due  any  person  tor  ser\ices  as  appraiser,  tor  premiiuns  or  surety  com-  and  eniorce 

3  panics  for  acting  as  surety  upon  the  official  bonds  of  administrators,  semllTin'^ 

4  executors,  trustees,  guardians,  conservators  or  receivers,  or  for  ser\-ices  Sthadlnkiis- 

5  rendered  by  any  person  in  connection  with  the  administration  of  the  estates.  °tc. 

6  estate  of  a  deceased  person,  or  ■nitli  the  administration  of  anv  trust,  iSi^;/^''^,1- 

7  guardianslnp,   conservatorship  or  receivership;  and  pajTnent  of  said 

8  amount  wlien  ascertained  and  determined  to  be  due  may  be  enforced 

9  summarily  by  said  court  upon  motion  of  the  person  to  whom  the  amount 

10  is  due  in  the  same  manner  as  a  like  pajmient  under  a  decree  in  equity 

1 1  may  be  enforced,  and  execution  may  also  be  issued  therefor  against  the 

12  executor,  administrator,  trustee,  guardian,  conservator  or  receiver  per- 

13  sonally  as  upon  a  judgment  at  law. 

1  Section  40.    If  an  executor,  administrator,  guardian,  conservator.  Enforcement 

2  trustee  or  receiver  resigns  or  is  removed,  and  neglects  or  refuses  to  de-  prop'ertTby'' 

3  liver  to  his  successor  all  property  held  by  him  under  the  trust,  the  pro-  Itcrwh?' 

4  bate  court  may,  upon  application  of  such  successor  or  any  person  bene-  i|sf"i4o"'' 

5  ficially  interested,  order  such  delivery  made,  and  shall  have  like  powers  P-  s-  i5fi. 

6  for  enforcing  such  order  as  are  given  to  it  by  section  thirty-four.  i907,'  129. 

1915,  23.  215  Mass.  242. 


i31. 
§3S. 


1  Section  41.    A  probate  court  may,  upon  application  of  a  person  in-  Temporary- 

2  terested  in  an  estate  in  process  of  settlement  in  such  court,  direct  the  isrlf,  224?  §  i. 

3  temporary  investment  of  any  money  belonging  to  such  estate  in  securities  r.  L^m,  VIq. 

4  approved  by  the  judge;  or  it  may  authorize  the  money  to  be  deposited  in 

5  any  bank  or  institution  in  the  commonwealth  empowered  to  receive  such 

6  deposits,  upon  such  interest  as  such  bank  or  institution  may  agree  to  pay. 

1  Section  42.    A  duly  authorized  attorney  at  law  may  enter  his  ap-  Appearances. 

2  pearance  as  attorney  for  the  party  represented  by  him  in  any  proceeding  r.  l!  102. 1 40. 

3  in  a  probate  court,  and  all  processes  and  notices  served  upon  him  shall  223  aiaS  297. 

4  have  the  same  force  and  effect  as  if  served  upon  the  party  whom  he 

5  represents. 

1  Section  43.     In  any  proceeding  in  a  probate  court,  the  petitioner  or  inten-og- 

2  respondent  may  at  any  time  after  the  filing  of  the  petition  file  inter-  israTise, 

3  rogatories  in  the  registry  of  probate  for  the  discovery  of  facts  and  docu-  Rs.'fse. 

4  ments  material  to  the  support  or  defence  of  the  proceeding.     All  pro-  r.  l^'i^oIj, 

5  visions  of  chapter  two  hundred  and  thirty-one  relati\"e  to  interrogatories  ilil^'g*!  i  § 

6  in  civil  actions  shall,  so  far  as  applicable,  apply  to  such  interrogatories,  iss  iiass'.  433. 

7  If  a  party  neglects  or  refuses,  to  expunge,  amend  or  answer  according  to  2i2Mass;335! 

8  said  chapter,  the  petition  shall  be  dismissed  or  its  prayer  granted,  or    " 

9  such  other  order  or  decree  entered  as  may  be  required. 

1  Section  44.     Upon  complaint  to  a  probate  court  by  a  person  inter-  Persons  sus- 

2  ested  in  the  estate  of  a  deceased  person  against  a  person  suspected  of  claiing  prop- 

3  ha\-ing  fraudulently  received,  concealed,  embezzled  or  conveyed  away  any  t^In^n/d  "^ 

4  property,  real  or  personal,  of  the  deceased,  the  court  may  cite  such  sus-  c"1r.3°ii','^§  2. 

5  pected  person,  although  he  is  executor  or  administrator,  to  appear  and  jeg^"!  \%  ^  "■ 

6  be  examined  on  oath  upon  the  matter  of  tlie  complaint.     If  the  person  jZ?°;J'  % 

7  so  cited  refuses  to  appear  and  submit  to  examination,  or  to  answer  such  §|  4"  s.'^ 

8  interrogatories  as  may  be  lawfully  propounded  to  him,  the  court  may  r.s.'«5,'§7,  " 


2292 


PROBATE   COURTS. 


[Chap.  215. 


1857,  71.  §  2. 
G.  S.  96.  §  6. 
P.  S.  133.  §  1. 
R.  L.  162.  §  43. 
4  Mass.  318. 


commit  him  to  jail  until  he  submits  to  the  order  of  the  court.  The  in-  9 
terrogatories  and  answers  shall  be  in  writing,  signed  by  the  party  exam-  10 
ined,  and  shall  be  filed  in  the  court.  11 


7  Pick.  14. 

8  Pick.  484. 


12  Met.  316. 
4  Cush.  46. 


99  Mass.  470. 
175  Mass.  4. 


Costs. 

1783.  46,  §  4. 
1817.  190, 
§§  7.  44. 
R.  S.  S3, 
§§  47,  48. 
G.  S.  117. 
§§  25,  26. 
P.  S.  156, 
§§  35.  30. 
1SS4,  131. 
R.  L.  162.  §  44. 
12  Mass.  525. 


Section  45.  In  contested  cases  before  a  probate  com-t  or  before  the 
supreme  judicial  coiu-t  on  appeal,  costs  and  expenses  in  the  discretion  of 
the  court  may  be  awarded  to  either  party,  to  be  paid  by  the  other,  or 
may  be  awarded  to  either  or  both  parties,  to  be  paid  out  of  the  estate 
which  is  the  subject  of  the  controver.sy,  as  justice  and  equity  may  re- 
quire.   If  costs  are  awarded  to  be  paid  by  one  party  to  the  other,  execu- 


tion may  issue. 

12  Cush.  332. 
7  Gray,  467. 
16  Gray.  89. 

2  Allen,  334. 

3  Allen,  587. 

5  Allen,  87,270. 
7  Allen,  401. 


4  Pick.  465. 

12  Allen,  1. 
99  Mass.  136. 
103  Mass.  287. 
106  Mass.  100. 
lOS  Mass.  277. 

109  Mass.  179. 

110  Mass.  88. 


20  Pick.  378. 


111  Mass.  132. 

112  M.ass.  269. 
121  Mass.  220. 
129  Mass.  46. 
131  Mass.  389. 
134  Mass.  249. 
139  Mass.  59. 


147  Mass.  IS. 
169  Mass.  216. 
210  Mass.  299. 
224  Mass.  145. 
226  Mass.  231. 

228  Mass.  236. 

229  Mass.  231. 


cftationby  Section  46.     When  personal  service  is  required  of  any  citation  issued  1 

igTI*"! '' ™'''''  ^y  ^  probate  court,  the  com't  may  direct  such  ser\'ice  to  be  made  by  2 

registered  mail  addressed  to  the  party  entitled  thereto  at  his  post  office  3 

address.     Further  service  may  be  ordered.  4 

waivM  of  Section  47.     The  notice  required  in  any  proceeding  in  a  probate  court  1 

^^s'lx'iii    ™^y  ^®  dispensed  with  if  all  parties  entitled  thereto  assent  in  writing  to  2 

R.  L.  162,  §  45.  such  proceeding  or  waive  notice.  isi  Mass.  595.  3 


Appointment 
of  one  ap- 
praiser. 

1896,  210. 

1897,  147. 


Section  48.  In  appraisals  of  property,  the  judge  or  register  may  1 
appoint  only  one  appraiser  if  in  his  opinion  the  nature  of  the  property  2 
makes  it  advisable.  R-  l.  162,  §  46.  3 


nlwf'a°e?i  Section  49.     Parties  to  probate  proceedings  may  select  tlie  news- 

for  notices.  papcrs  in  which  the  notices  ordered  upon  their  petitions  shall  be  pub- 
G.  s.'ii7,'§  29.  lished,  preference  to  be  given  to  a  newspaper,  if  any,  published  in  the 
R.L.  162.  §47-  town  where  the  deceased  last  dwelt,  unless,  in  the  judgment  of  the  regis- 
log^Ss'.  111.  ter,  the  interests  of  all  parties  require  publication  in  some  other  locality; 
but  the  court  may  order  the  notice  published  in  one  other  newspaper. 


Receipts,  etc., 
to  executors, 
etc..  may  be 
recorded. 
1864,  93. 
P.  S.  156,  I  39. 
1898,  527,  §  2. 
R.  L.  145, 
§41;  162,  §48. 
1910,  95. 
1915,  23. 


Section  50.  A  paper  or  instrument,  discharging  a  claim  or  purport-  1 
ing  to  acknowledge  the  performance  of  a  duty  or  payment  of  money  for  2 
M'hich  an  executor,  administrator,  guardian,  conser\'ator,  trustee  or  re-  3 
ceiver  is  chargeable  or  accountable  in  a  probate  court,  shall,  upon  the  4 
request  of  a  party  interested,  be  recorded  in  the  registry  of  said  court;  5 
and  the  registers  of  probate  in  their  respective  counties  shall  enter,  record,  6 
index  and  certify  any  original  paper  or  instrument  offered  as  aforesaid,  7 
and  shall  receive  for  such  ser\ices  like  compensation  as  registers  of  deeds  8 
would  be  entitled  to  demand  for  like  ser\ices.  Such  compensation  shall  9 
be  paid  by  the  person  leaving  such  paper  or  instrument  for  record  at  10 
the  time  of  leaving  it.  1 1 


tam^papc^ra"  SECTION  51.     A  register  shall  make  without  charge  one  certified  copy     1 

™823°ui'''§?^'  ^^  ^"y  ^^^'^  proved,  inventory  returned,  account  settled,  partition  of     2 
R.  s.'83,  §53.    land,  assignment  of  dower  or  curtesy,  and  of  any  order  or  decree  of  the     3 


Chap.  215.]  probate  courts.  2293 

4  court,  and  shall  deliver  such  copy  upon  demand  to  the  executor,  adminis-  g.  s.  in,  §  so. 

5  trator,  guardian,  conservator,  trustee,  receiver,  widow,  heir  or  other  per-  r.  l.\g2. Itg. 

6  son  principally  interested. 

1  Section  52.     The  probate  court  in  which  a  will  has  been  duly  proved,  °a^|' taken 

2  allowed  and  recorded  may,  after  the  expiration  of  twenty  davs  within  t™™  ^?,?i^^^y- 

r.!'!  1  11  fi  11  l*.  'I'll  lo7b,  IbD. 

3  which  an  appeal  may  be  taken  irom  the  decree  admittnig  such  will  to  p.  s.  isb,  §41. 

4  probate,  upon  the  petition  of  the  executor  or  of  a  legatee  named  in  such  wioi  17-" 

5  will,  or  of  any  person  interested  in  the  estate  of  the  testator,  and  after    '*' 

6  notice  and  a  hearing,  permit  the  original  will,  if  it  appears  necessary,  to 

7  be  taken  from  the  files  of  such  coiut  to  establish  the  right  or  title  of  such 

8  executor,  legatee  or  person  to  the  estate  of  the  testator  in  any  foreign 

9  country. 

1  Section  53.     County  commissioners  shall  provide  and  maintain  suit-  Court  rooms, 

2  able  rooms  for  the  use  of  the  probate  courts,  ample  fireproof  rooms  and  record,  etc.,  to 

3  suitable  alcoves,  cases  and  boxes  for  the  safe  keeping  of  all  records,  files,  i823rHi.''§  4. 

4  papers  and  documents  belonging  to  the  several  registries  of  probate,  and  §!  1:  ii7,\*3i. 

5  shall  also  provide  all  books  necessary  for  keeping  the  records,  and  all  \l]l\  il!;  §  1. 

6  printed  blanks  and  stationery  used  in  probate  proceedings.  ^-  ^  'jg?;  H^- 

1  Section  54.     If  in  the  opinion  of  a  justice  of  the  supreme  judicial  ft?^^|34'y2 

2  court  such  fireproof  rooms  are  insufficient,  he  shall,  upon  application  of  the  ^- 1-  '^J^  \*?^ 

3  judge  or  register  of  probate  of  the  county,  certify  the  need  of  additional 

4  accommodations  to  the  county  commissioners  of  such  county,  and  they 

5  shall  forthwith  provide  such  additional  fireproof  rooms  and  other  neces- 

6  sary  accommodations. 

1  Section  55.     If  in  the  judgment  of  the  county  commissioners,  public  Presenation 

2  convenience  so  requires,  they  may,  at  the  county's  expense,  cause  the  etc  °°  "^  ^' 

3  files  and  records  of  the  probate  courts,  except  in  the  county  of  Suffolk,  ^^l]  HI]  §  53. 

4  to  be  rearranged,  indexed  and  docketed,  worn  or  defaced  dockets  renewed  ^  °p-  ^-  °-  ■*'''^- 

5  and  the  indexes  consolidated,  under  the  direction  and  supervision  of  the 

6  registers  of  said  courts. 

1  Section  56.     The  expense  of  recording  probate  proceedings  in  Suf-  ^^^g?"^^  rebate 

2  folk  county,  not  exceeding  forty-five  hundred  dollars  in  any  one  year,  grnceedings  in 

3  shall  be  paid  by  said  county,  upon  the  official  certificate  of  the  register,  1375, 233,  §  2. 

4  countersigned  by  a  judge  of  the  probate  court  for  said  county,  in  the  iss4, 11s. 

5  amounts  and  to  the  persons  named  in  such  certificate. 

1SS-,  217.  1S93,  422.  R.  L.  102,  §  54. 

SESSIONS   OF  THE   COURTS. 

1  Section  57.     The  judge  of  a  probate  court  may  keep  order  in  court,  to  maintain 

2  and  may  punish  any  contempt  of  his  authority.  i783, 46,  §  i.  pumsh  for 

1817,190,11.  G.  S.  117,  §33.  R.  L.  162,  §55.  contempt. 

R.  S.  83,  §10.  P.  S.  156,  §45.  114  Mass.  230. 

1  Section  58.     The  probate  courts  shall  always  be  open,  except  on  Courts  always 

2  Sundays  and  legal  holidays,  for  hearings,  matters  in  equity,  proceedings  con°'t.  pt.  2, 

3  in  contempt  and  for  making  orders  and  decrees  in  matters  before  them;  (c^n"''Rev. 

4  but  the  times  of  hearings  shall  be  discretionary  with  the  judges  of  said  isgs'lii 

5  courts.  1901,  61.  R.  L.  162,  §  56. 


2294 


PROBATE   COURTS. 


[ClLiP.   215. 


Adiournment. 
1811,  139. 
1829,  no.  §  2. 
R.  S.  83,  §  3. 
1836,41. 
G.  S.  117,  §  34. 
P.  S.  156,  §  46. 
R.  L.  162,  §  67. 


Section  59.     A  judge  of  a  probate   court  may  adjourn  court   as  1 

occasion  requires;  and  if  he  is  absent  at  the  time  appointed  for  holding  2 

court,  the  register  shall  adjourn  it  as  he  may  consider  necessary  or  as  the  3 

judge  may  order.    The  register  may  also  adjourn  court  when  the  office  4 

of  judge  is  vacant.  5 


Midays'or""         Section  60.     If  the  regular  time  for  holding  a  probate  court  occurs 

is84'°i4i'"^^'     ^'^  ^  legal  holiday  or  on  the  day  of  a  state  election,  the  court  shall  be  held, 

R.  L.  162,  §  68.  and  all  notices,  citations,  orders  and  other  papers  which  would  otherwise 

be  made  returnable  at  said  regular  time  shall  be  made  returnable  on  the 


next  secular  day  thereafter. 


Court  not  to 
be  held  without 
register,  etc. 
R.  S.  83,  §  20. 


Section  61.     No  court  shall  be  held  by  adjournment  or  otherwise     1 
unless  the  register,  assistant  register  or  a  temporary  register  is  present.      2 

G.  S.  117,  §  35.  P.  S.  156,  §  47.  R.  L.  162,  §  59. 


when  and 
where  courts 
are  held. 


Section  62.     Probate  courts  shall  be  held  at  the  followang  times  and     1 
in  the  following  towns,  at  such  places  therein  as  the  judges  shall  designate :    2 


Barnstable. 

R.  S. 

83,  §  55. 

1853, 

74. 

1857, 

113. 

G.S. 

117, 

§36. 

Berkshire, 

R.  S. 

83,  §  55. 

1849, 

41. 

G.S. 

117, 

§36. 

1857, 

16. 

1S6S, 

325, 

§2; 

329. 

1869, 

60,  i 

11. 

1872, 

202. 

P.  S. 

156, 

§48. 

R.  L. 

162, 

,  §60. 

Bristol. 

R.  S. 

83,  S 

)  55. 

1842, 

88. 

1867, 

159, 

§  1. 

G.S. 

117, 

§36. 

1862, 

6,  §1. 

1878, 

121. 

P.  S. 

1.56, 

§48. 

1898, 

199. 

R.  L. 

162, 

,  §60, 

1914, 

SS. 

Dukes. 

R.  S. 

S3,  §  55. 

1856, 

265. 

1859, 

,56. 

G.S. 

117, 

§36. 

1862, 

114. 

P.S. 

156, 

§48. 

Essex. 

R.  S. 

83,  §  55. 

1848, 

234. 

18.5.3, 

407. 

1856, 

1,  §  1. 

G.S. 

117, 

§36. 

1874, 

273. 

P.S. 

156, 

§48. 

R.  L, 

,  162, 

,  §60. 

Const,  pt.  2,  0.  3,  art.  4. 
(Const.  Rev.  art.  142.) 
1719-20,  10,  §  8. 


1817,  190,  §  3. 

R.  S.  83,  §§  2,  55,  56. 

G.S.  117,  §  36. 


P.  S.  156,  §  48. 
R.  L.  162,  §  60. 


For  the  county  of  — 

Barnstable,  at  Barnstable,  the  second  and  fourth  Tuesday  of  each  3 

month  except  July  and  August,  and  the  second  Tuesdays  of  July  and  4 

August.                                          1867, 307.                                         1S6S,  196.  5 


1869,  277. 
1877,  94,  §  1. 


P.  S.  156,  §  48. 
1893, 343. 


R.  L.  162,  §  60. 
1917,  38. 


Berkshire,  at  Pittsfield,  the  first  Tuesday  of  each  month  except  July,  6 
August  and  November,  the  third  Tuesday  of  July,  and  the  Wednes-  7 
day  next  after  the  first  INIonday  of  November;  at  Lee,  the  Wednesdays  8 
next  after  the  first  Tuesdays  of  January,  April  and  October,  and  the  9 
Wednesday  next  after  the  third  Tuesday  of  July;  at  Adams,  the  Thurs-  10 
days  next  after  the  first  Tuesdays  of  January  and  October,  the  Wednes-  11 
day  next  after  the  first  Tuesday  of  March,  and  the  Thursday  next  after  12 
the  third  Tuesday  of  July;  at  Great  Barrington,  the  Wednesdays  next  13 
after  the  first  Tuesdays  of  February,  May,  September  and  December.       14 

Bristol,  at  Fall  River,  the  first  Friday  of  each  month  except  August;  15 
at  New  Bedford,  the  second  Friday  of  each  month  except  July,  and  16 
except  also  that  in  August  it  shall  be  held  on  the  first  Friday;  at  Taun-  17 
ton,  the  third  Friday  of  each  month  except  July  and  August;  at  Attle-  18 
boro,  the  fourth  Fridays  of  Januaiy,  March,  May,  June,  September  and  19 
November.  i9i6, 73.  i9is,  123.  20 

Dukes,  at  Edgartown,  the  third  Mondays  of  January  and  July,  and  21 
the  first  Mondays  of  March  and  December;  at  Vineyard  Haven,  the  22 
third  Monday  of  April,  and  the  first  Monday  of  September;  at  West  23 
Tisbury,  the  first  Monday  of  June,  and  the  thii-d  Monday  of  October.  24 

R.  L.  162,  §  60. 

Essex,  at  Salem,  the  first,  third  and  fifth  IMondays  of  each  month  25 
except  August,  and  the  first  INIonday  of  August;  at  Lawrence,  the  second  26 
Monday  of  each  month  except  August;  at  Newburj-port,  the  fourth  27 
Monday  of  each  month  except  April,  August  and  October;  at  Haverhill,  28 
the  fourth  Mondays  of  April  and  October.  i90s,  218.  29 


Ch.\P.   215.]  PROBATE  COURTS.  2295 

30  Franklin,  at  Greenfield,  the  first  Tuesday  of  each  month  except  No-  Frantiin. 

31  vember,  and  the  third  Tuesday  of  each  month  except  August;   and  at  1850,244. 

32  least  four  adjourned  sessions  shall  be  held  at  Orange  in  each  year.  fso?',  249.  ^  ^^' 

p.  P.  156,  §  4S.  1S9S,  218.  R.  L.  Ifi2,  §  60. 

1887,  46.  1901,  259.  1919,  43. 

33  Hampden,  at  Springfield,  the  first  Wednesday  of  each  month  except  Hampden. 

34  August,  the  second  Wednesda.v  of  January,  and  the  third  Wednesdays  isse,  256. 

35  of  February,  April,  May,  July,  September,  November  and  December;  i85o;2S7. 

36  at  Holyoke,  the  third  Wednesdays  of  January,  March,  June  and  October,  fsal,  123.  ^  ^^' 

1874,  157.  18S4,  294.  1905.  79. 

P.  S.  156,  §  48.  R.  L.  162,  §  60.  1910,  262. 

37  Hampshire,  at  Northampton,  the  first  Tuesday  of  each  month;    at  Hampshire. 

38  Amherst,  the  second  Tuesdays  of  January,  INIarch,  June,  August  and  18.36, 256. 

39  November;  at  Belchertown,  the  second  Tuesdays  of  ]\Iay  and  October;  g*^|.' n7,  §  35. 

40  at  Williamsburg,  the  third  Tuesdays  of  INIay  and  October;    at  Ware,  Jl?!,';™;;, 

41  the  second  Tuesdays  of  February,  September  and  December,  and  the  P-^^  i*l'  §  *^- 

42  third  Tuesday  of  June.  R.  l.  162,  §  60. 

43  ]\Iiddlesex,  at  Cambridge,  INIonday,  Tuesday,  Wednesday,  Thurs-  Middlesex. 

44  day  and  Friday  of  each  week  except  betAveen  the  foiu-th  Tuesday  of  im's,  21a 

45  July  and  the  second  INIonday  of  September,  and  except  the  third  Tues-  g!'s.u7.  §  se. 

46  day  of  each  month;  at  Lowell,  the  third  Tuesday  of  each  month  except  }|I]7;22o,§  2. 

47  August.  1S6S,  213. 

p.  S.  156.  §  48.  R.  L.  162,  §  60.  1914,  134. 

1889,  182.  1907,  273.  1919,  7. 

48  Nantucket,  at  Nantucket,  the  Thursday  next  after  the  second  Tues-  Nantucket. 

49  day  of  each  month.  is38,  26. 

1S43,4.  G.  S.  117,  §36.  p.  S.  156,  §48. 

1859,  161.  1863,  146.  R.  L.  162,  §  CO. 

50  Norfolk,  at  Dedham,  the  first  and  third  Wednesdays,  at  Quincy,  the  Norfolk.^ 

51  second  Wednesday,  and  at  Brookline,  the  fourth  Wednesday  of  each  r.  s.'ss.'j  5.5. 

52  month  except  August.    The  county  commissioners  of  said  county  may  §5^%^"'^' 

53  provide,  furnish  and  maintain  suitable  rooms  and  accommodations  in  ^^^1  ^^4  ^  ^"^ 

54  Boston  for  the  use  of  the  probate  coiu-t  for  said  countv  for  hearings  and  Js^P' ,']!?.,  ,„ 

.    ,         «  ,  ^       .  .  ,  .'  1  '^  .      p.  S.  1  Ob,  §  48. 

5o  trials  or  such  contested  cases  in  said  court  as  the  parties  thereto  or  their  isos.  201. 

56  counsel  desire  to  have  heard  and  tried  in  Boston.  R.  l.  162,  §  60. 

57  Plymouth,  at  Plymouth,  the  second  JSIonday  of  each  month  except  Plymouth.  _ 

58  August;  at  Brockton,  the  fourth  IMonday  of  each  month  except  July.      1845', 73       ' 

1850,  204,  §§  1,2.  1863,245.  P.  S.  156,  §  48. 

1852,  249,  1868,  169.  1SS7,  63. 

1855,320.  1870,37.  18S9, 237;  269. 

1856,  122,  §  1.  1881,  203.  R.  L.  162,  §  60. 
G.S.  117,  §  36. 

59  Suffolk,  at  Boston,  each  Thursday  except  the  first,  second,  fourth  and  ^"^"'^j  .  ^- 

60  fifth  Thursdays  of  August. 

1S3S.  54.  1873,  375.  1881,  115.  P.  S.  156,  §  48. 

G.  S.  117,  §  36.       1878,  127.  1892,  202.  R.  L.  162,  §  60. 

61  Worcester,  at  Worcester,  each  Tuesday  of  every  month  except  August.  J^^f^'^f  *^''- 

R.  S.  83,  §55.  1848,  134;  255,  G.  S.  117.  §  36.  1893,348. 

1836,  231.  §§  1,  2.  1869,  253.  .  R.  L.  162,  §  60. 

1837,  141.  1854, 318.  1878,  128.  1908, 227. 
1846,  128.  1856,  162.  P.  S.  156,  §  48. 

1  Section  63.    The  judges  of  said  courts,  as  often  as  changes  are  made  Changes  in 

2  in  the  places  designated  for  holding  courts,  shall  give  sufficient  notice  Lwmg  courts. 

3  thereof,  either  by  advertisement  in  some  newspaper  or  by  posting  the  io,''§~8.°' 

4  same  in  public  places.  i8i7,  i90,  §  3. 

R.  S.  83,  §  57.  G.  S.  117,  §  36.  P.  S.  156,  §  48.  R.  L.  162,  §  60. 


2296 


COURTS   OF   INSOLVENCY. 


[Chap.  216. 


REFERENCES. 

§     5.     Bond  in  French  spoliation  cases,  Chap.  205,  §  2. 
§     6.     Other  matters  on  which  probate  courts  have  equity  jurisdiction: 
Chap.  209,  §§  32,  33  (separate  support). 
Chap.  204,  §  15  (compromise  of  wills). 
Chap.  204,  §  1  (specific  performance  of  contract  to  convey  land  by  person 

subsequently  deceased,  etc.). 
Chap.  241,  §  25  (partition). 
§    9.     General  practice  on  appeals  in  equity,  Chap.  214,  particularly  §  19. 

Appeals  from  orders,  etc.,  made  before  this  chapter  takes  effect.  Chap.  2S1,  §  4, 
Appeals  in  adoption  cases.  Chap.  210,  §  11. 
§  10.     Authority  of  the  court  to  dismiss  the  appeal  if  the  appellant  fails  to  order 
copies.  Chap.  231,  §  133. 
Appeals  in  insolvency  cases,  §  17  infra,  and  Chap.  19S,  §§  11,  12,  16. 
§  11.     For  a  simil.ar  provision  in  equity.  Chap.  214,  §  23. 
§  13.     As  to  the  procedure  in  equity.  Chap.  214,  §§  30,  31. 
§  14.     For  a  similar  provision  in  equity.  Chap.  214,  §  27. 
§  15.     For  a  similar  provision  in  equity.  Chap.  214,  §  28. 
§  16.     Practice  in  the  sujireme  judicial  and  superior  courts.  Chap.  214,  §§  34-36. 

Appeals  from  an  order  granting  or  refusing  issues,  §  22. 
§  17.     Appeals  where  court  apjioints  commissioners  to  receive  and  examine  claims, 

Chap.  19,8,  §§  11,  16. 
§  18.     Duties  and  compensation  of  court  stenographers.  Chap.  221,  §§  87,91. 
§  21.     See  Chap.  214,  §  19. 

§  22.     As  to  the  effect  of  appeal  in  special  cases,  see  — 
Chap.  193,  §  10  (special  administrator). 
Chap.  201,  §  14  (temporary  guardian). 
Also  see  four  following  sections. 
§  29.     As  to  the  provision  for  dismissing  an  appeal  in  equity.  Chap.  231,  §§  133,  134. 
§  36.     As  to  the  attestation  of  probate  records,  Chap.  217,  §  15. 
§  43.     Interrogatories  in  general.  Chap.  231,  §§  61-67. 
§  44.     As  to  examination  of  e.xecutors,  etc.,  in  connection  with  their  accounts,  Chap. 

206,  §§  2-4. 
§  45.     As  to  costs  upon  appeal  in  insolvent  estates.  Chap.  198,  §  15. 
§  48.     As  to  the  authority  of  the  register  to  appoint  appraisers,  Ch.ap.  217,  §  22. 
§  50.     As  to  the  compensation  of  registers  of  deeds,  Chap.  262,  §  38. 
§  51.     As  to  the  legal  fees  for  copies.  Chap.  262,  §§  38,  40,  44,  45. 
§  57.     As  to  the  authority  of  the  court  to  punish  witnesses  for  contempt  in  faiUng  to 
appear  under  summons.  Chap.  233,  §§  5,  6. 
As  to  commitments  to  jail.  Chap.  220,  §  14. 
See  also  §  34  of  this  chapter. 


CHAPTER    216 


COURTS  OF  INSOLVENCY. 


Sect. 

general  provisions. 

1.  Courts  of  record,  etc. 

2.  Courts  of  insolvency  to  be  courts  of 

superior  jurisdiction,  etc. 

3.  JurisdictioQ. 

4.  Petitions  filed  in  more  than  one  county. 

5.  Equity  jurisdiction. 

6.  Enforcement  of  orders  in  equity. 

7.  Courts,  where  held. 

8.  Approval  of  compositions,  etc. 

0.  Contempt,  administering  of  oaths,  etc. 

10.  Proceedings  m.itters  of  record.     Evi- 

dence. 

11.  Docket.     Duties  of  register. 

12.  Warrants,  etc.,  when  returnable,  etc. 

13.  Selection  of  newspapers  for  notices. 

14.  Counties    to    provide     court    rooms, 

etc. 


Sect. 

15.  Expenses. 

16.  Rules,  etc. 

17.  Jurisdiction  of  supreme  judicial  court. 

18.  Rules  as  to  notice. 

19.  Appearance  by  attorney. 

PETITION    BY    DEBTOR.       FIRST    MEETING. 

20.  Petition. 

21.  Warrant  to  messenger. 

22.  Messenger  to  receive  property. 

23.  Delivery  of  property  and  schedule  by 

debtor. 

24.  Late  schedule. 

25.  Sale  of  perishable  property. 

26.  Messenger    to    commence    action    by 

order  of  court. 

27.  Delivery  of  schedule  of  creditors,  etc., 

by  debtor  to  register. 


CiLU'.  216.] 


COURTS  OF  INSOL\'ENCY. 


2297 


Sect. 

28.  Late  schedules. 

29.  First  meeting. 

30.  Death  of  debtor. 

DEBTS    AND    PROOF    OF    CLAIMS. 

31.  Claims  provable. 

32.  Equitable  claims. 

33.  Leases,  etc. 

34.  Set-off. 

35.  Proof  of  claim  by  assignee  thereof. 

36.  Mortgage,  pledge  or  lien. 

37.  Mortgage    recorded   more    than    four 

months  after  date. 

38.  Allowance  for  legal  services. 

39.  Claims  to  be  proved  on  oath. 

40.  Oath  by  attorney. 

41.  Before  whom  oath  may  be  made. 

42.  Postponement  of  claims. 

43.  CLaims  not  to  be  allowed. 

44.  Allowance  and  expunging  of  claims. 

45.  Appeal. 

46.  Proceedings. 

47.  Judgment  on  appeal.     Costs. 

4S.  E\-idence  of  withdrawal  of  claim. 

ASSIGNMENT   AND    ASSIGNEE. 

49.  Choice  of  assignee. 

50.  Bond  of  assignee. 

51.  Assignmeat  by  judge. 

52.  Record  of  assignment  and  notice. 

53.  Agent  of  non-resident  assignee. 

54.  Effect  of  assignment. 

55.  Attachments,  how  preserved. 

56.  Assignee  to  demand  and  receive  prop- 

erty' and  keep  accounts. 

57.  Inventory. 

6S.  Assignee  to  account  for  property  at 
appraised  value. 

59.  Assignee  to  commence  and  prosecute 

actions,  etc. 

60.  Limitation  of  actions. 

61.  Drafts,     etc.,     assigned     within     six 

months  not  to  be  offset. 

62.  Property  to  be  kept  separate  by  as- 

signee. 

63.  Temporary   investment   of   property, 

when. 

64.  Carrying  on  of  business. 

65.  Notice  of  dividends  and  meetings. 

66.  Compensation  of  assignee. 

67.  Submission  to  arbitration. 

68.  Sale  of  perishable  property  pending 

dispute  of  title. 

69.  Accounts. 

70.  Removal  of  assignee  by  creditors. 

71.  Removal  by  court  upon  complaint. 

72.  Other  grounds  of  removal. 

73.  Resignation  of  assignee. 

74.  Filling  of  vacancies. 

75.  Effect  of  resignation,  etc. 

76.  Vesting  of  estate  upon  death,  etc. 

77.  Former  assignee  to  execute  deeds,  etc. 

78.  Preferred   creditors  not   to   vote   for, 

etc. 


Sect. 

79.  Penalty  for  neglect,  etc. 

80.  Appointment  upon  death  of  assignee 

with  accounts  unsettled. 
SI.  Distribution. 


EXAMIN.A.TION   OF   DEBTOR. 

82.  Examination  of  debtor  and  other  per- 
sons. 

Examination  of  debtor  if  in  prison. 

Examination  of  debtor  if  ill  or  unable 
to  attend. 

Examination  of  debtor  if  out  of  the 
commonwealth. 

86.  Debtor  to  do  all  necessary  acts. 

87.  Failure  to  execute  instruments,  etc. 


S3. 
84. 


85 


SECOND    AND    THIHD    MEETINGS.        0.\TH    AND 
DISCHARGE. 

88.  Second  meeting.     Oath. 

89.  Oaths  out  of  court. 

90.  Order  of  meeting  by  court. 

91.  Order  of  meeting  by  register  on  order 

of  court. 

92.  Third    meeting.      Certificate    of    dis- 

charge. 

93.  Effect  of  discharge.     How  pleaded. 

94.  Discharge  from  imprisonment. 

95.  Discharge  from  arrest  and  property 

exempt  from  attachment,  etc. 

96.  Debts  not  discharged. 

97.  Action  on  claim  omitted  from  sched- 

ule. 

98.  Persons  jointly  liable  not  released. 

99.  Discharge  by  assent  of  creditors. 

100.  Discharge  upon  subsequent  insolvency. 

101.  Assent  of  creditor  notwithstanding  ap- 

peal. 

102.  Preferred  creditors  not  to  vote. 

103.  Discharge  of  debtor  failing  by  acci- 

dent, etc.,  to  take  oath. 

104.  Appeal  on  question  of  discharge. 

105.  Proceedings. 


MATTERS    AVOIDING    DISCH.AlRGE. 

106.  Forfeiture   of   discharge   by   fraud   of 

creditor. 

107.  Discharge  when  books  of  account  not 

kept. 

108.  Discharge     avoided     by     fraudulent 

preference. 

109.  Discharge,  how  contested. 

PREFERENCES. 

110.  Fraudulent  pa.vments. 

111.  Fraudulent  sales,  etc. 

112.  Application  of  preceding  sections. 


ALLOWANCE   AND   SURPLUS. 

113.  Allowance  to  debtor. 

114.  Allowance,  how  paid  in  case  of  death. 

115.  Surplus  to  be  returned  to  debtor. 


2298 


COURTS  OF  rNSOLVENCT. 


[Ckap.  216. 


Sect. 


ACCOUNTS   AND    DIVIDENDS. 


116.  Accounts. 

117.  Dividend. 

118.  Preferred  claims. 

119.  Allowance  to  petitioning  creditor  for 

counsel  fees,  etc. 

120.  Wages  due  to  an  operative  from  an 

operative  working  under  contract. 

121.  Reservation  for  absent  creditors. 

122.  Unclaimed  dividends. 

123.  Unclaimed  deposits. 

124.  Second     dividend.        Assignee's     ac- 

counts. 

125.  Sale,  etc.,  of  outstanding  debts,  etc. 

126.  Actions  on  claims  sold  by  assignees. 

Costs. 

127.  Further  dividends. 

128.  Former  dividends  not  to  be  disturbed. 

PETITION   BT    CREDITORS. 

129.  Petition  by  creditors. 

130.  Notice  of  petition,  etc. 

131.  Warrant.     Proceedings  thereon. 

132.  Stay  of  proceedings. 

PETITION  BY  CREDITORS  OF  INSANE  PERSON. 

133.  Petition  by  creditors  of  insane  person. 

134.  Schedules. 

135.  Debtor,  after  recovering  from  insan- 

ity, may  apply  for  discharge. 

CONCEALMENT   OF   PROPERTY. 

136.  Concealment,  etc.,  of  property. 

PARTNERSHIPS. 

137.  Petition  by  or  against  partnership. 

138.  Choice  of  assignee.    Joint  and  separate 

property. 

139.  Limited  partnerships. 

140.  Separate  allowance  to  each  partner. 

141.  Certificate  of  discharge  to  each  part- 

ner. 

142.  Proof  of  partnership  debts  assumed  by 

one  or  more  partners,  etc. 


Sect. 


CORP0R.\TIONS. 


143.  Petition  by  corporations. 

144.  Claims  provable  before  last  di'vidend. 

145.  Schedules.     Duties,  etc.,  of  officers. 

146.  Powers  and  duties  of  assignee. 

147.  Land  damages  preferred  claims. 

148.  Void  preferences. 

149.  Petition  by  creditors. 

COMPOSITION. 

150.  Composition. 

151.  Proposal  for  composition. 

152.  Stay  of  proceedings  by  court,  etc. 

153.  Accounts  and  papers  open  to  examin- 

ation. 

154.  Provisions  applicable. 

155.  Effect  of  notice  of  proposal. 

156.  Hearing  and  assent  of  creditors. 

157.  Confirmation  of  composition.     Effect. 

158.  Unproved  claims. 

159.  Disposition    of    property    upon    dis- 

charge. 

160.  Return  of  deposits. 

161.  Effect  of  failure  of  composition. 

162.  Stockholder's  liability  not  affected. 

163.  Effect  of  composition  upon  pending  ac- 

tion. 

164.  Proceedings. 

165.  Schedule  of  officers,  etc. 

166.  Effect  of  discharge  upon  attachments. 

167.  Amendments  and  orders. 

168.  Penalty  for  placing  fictitious  debt  upon 

schedule. 

169.  Penalty  for  proving  fictitious  debt. 


FEES  AND   COSTS. 

'0.  Fee  for  receiving  petition,  etc. 


171.  Accounts  of  register. 

172.  No  fees  in  composition  cases,  when. 

173.  Messenger's  fees. 

174.  Costs  if  attachment  dissolved. 

175.  Costs,  how  paid. 

VACATING    PROCEEDINGS. 

176.  Vacating  proceedings. 

KETTJBNS. 

177.  Returns  by  registers. 


GENERAL  PROVISIONS. 

record  etc  SECTION  1.     Courts  of  insolvency  shall  be  courts  of  record,  and  the    1 

il's  93*'  ^ ''    i^'-^S^  ^^^  register  of  probate  and  insolvency  for  each  county  shall  be  tlie    2 
G.  s.'iis,  §  1.    judge  and  register  of  the  court  of  insolvency  therefor.  3 

p.  S.  157,  §  1.  E.  L.  1G3,  §  1. 


Courts  of 
insolvency  to 
be  courts  of 
superior  juris- 
diction, etc. 
1894,  104,  §  3. 
R.  L.  103,  5  2. 
1902,  544,  §  25. 
18S  Mass.  186. 
204  Mass.  310. 
207  Mass.  91. 


Section  2.  Courts  of  insolvency  shall  be  courts  of  superior  and 
general  jurisdiction  with  reference  to  all  cases  and  matters  in  which  they 
have  jurisdiction,  and  it  shall  be  unnecessary  for  any  order,  decree, 
sentence,  warrant,  writ  or  process  which  may  be  made,  issued  or  pro- 
nounced by  them,  to  set  out  any  adjudication  or  circumstances  M-ith 
greater  particularity  than  would  be  required  in  other  courts  of  superior 


Ch.\P.   216.]  COURTS   OF  INSOLVENCY.  2299 

7  and  general  jurisdiction,  and  the  like  presumption  shall  be  made  in  favor  211  Mass.  409. 

8  of  proceedings  of  the  courts  of  insolvency  as  would  be  made  in  favor  of  220  iuss.'  25s. 

9  proceedings  of  other  coiu-ts  of  superior  and  general  jurisdiction. 

1  Section  3.     Courts  of  insolvency  shall  have  original  jurisdiction  in  Jurisdiction. 

2  their  respective  counties  of  cases  of  insolvency  under  this  chapter.  isss!  93,  '§  10! 

G.  S.  118,  §  2.  P.  S.  157,  §  2.  R,  L.  163,  §  3. 

1  Section  4.     If  a  petition  in  insolvency  is  within  the  jurisdiction  of  ,^^mo?rthin'' 

2  more  than  one  court,  the  court  in  which  it  is  first  filed  shall  have  exclusive  ?S^,''°""'y; , 

„..,..  I  (..-.  ..  ,  1  ,.  ..  1893,  405.  §  5. 

.3  juri-sdiction  thereof  if  a  warrant  is  issued,  and  proceedings  upon  a  petition  R-  l.  les,  §  4. 

4  filed  in  another  county  shall  be  stayed  until  the  court  in  which  the  petition 

5  was  first  filed  determines  whether  a  warrant  shall  be  issued. 

1  Section  5.     Courts  of  insolvency  shall  have  equity  jurisdiction,  con-  Equity  juris- 

2  current  with  the  supreme  judicial  court  and  the  superior  court,  of  all  i894?i64.  §  i. 

3  cases  and  matters  pending  in  said  courts  of  insolvency,  and  such  juris-  iBT^Mass!  Ick' 

4  diction  may  be  exercised  upon  petition,  according  to  the  usual  course  of 

5  proceedings  in  courts  of  insolvency. 

1  Section  G.     Courts  of  insolvency  shall  have  like  power  to  enforce  Enforcement 

2  orders,  decrees  and  sentences  made  by  them  in  the  exercise  of  any  au-  equi'tV^'^'' '" 

3  thority  or  jurisdiction  conferred  upon  them  and  to  punish  contempts  of  r*®l!  lit',  f  e! 

4  their  authority  as  the  supreme  judicial  court  has  in  like  cases. 

1  Section  7.     Courts  of  insolvency  shall  be  held  at  the  shire  towns  of  hew'*^'  '^^"'^ 

2  the  county  at  times  appointed  by  the 'court,  and  may  be  held  at  such  }|4f  •  }7s' I  le' 

3  other  places  as  will  best  promote  the  convenience  of  the  public.    They  is^ei  i«s'  §  2. 

4  shall  always  be  open,  except  on  Sunday  and  legal  holidays,  for  hearings,  §§  3,' 13.  ' 

5  matters  in  equity,  contempt  proceedings  and  for  making  orders  and  g.  I.'iis, 

6  decrees  in  all  matters  before  them;   but  the  times  of  all  hearings  shall  I^I.'ist, 

7  be  discretionary  with  the  judges  of  said  coiuts.    The  judge  or,  in  his  f|g|  %^ 

8  absence  or  in  case  of  a  vacancy  in  that  office,  the  register  may  adjourn  J^Pi'  J'„  ^  _ 

9  any  court  or  meeting  as  occasion  requires,  and  all  acts  lawfully  done  at  7  Met  431. 

10  an  adjourned  meeting  shall  have  like  effect  as  if  done  at  the  original  s  Gray!  193! 

11  meeting. 

1  Section  8.     The  judge  may   approve   compositions   and  assignees'  ^q^^™™/;  "4 

2  bonds,  approve  or  order  sales,  recei\'e  petitions,  issue  orders  of  notice  et<^-     _„  ,  „ 

3  and  warrants  and  do  such  other  official  acts  as  are  done  as  matters  of  isse!  284]  §  4! 

4  course  and  do  not  require  notice. 

G.  S.  lis,  §  4.  p.  S.  157,  §  4.  R.  L.  163,  §  8.  165  Mass.  317. 

1  Section  9.     The  judge  may  keep  order  in  his  court  and  punish  any  Contempt, 

2  contempt  of  his  authority,  administer  oaths,  issue  commissions,  compel  of  oathl^t"^ 

3  the  attendance  of  witnesses  and  the  giving  of  evidence  in  like  manner  Hlf,  Isi.    ^^' 

4  as  the  superior  court;  and  may  appoint  necessary  officers  to  attend  upon  q.  s.  lis,  §  5. 

5  the  court  to  keep  order  therein  and  transact  its  business.  ^  |;  i^j^  i^g 

1  Section  10.     Proceedings  in  courts  of  insolvency  shall  be  matters  Proceedings 

2  of  record,  and  the  assignment  and  certificate  of  discharge  shall  be  re-  ^tm" " 

3  corded  in  full.    Other  proceedings  need  not  be  so  recorded,  but  shall  be  isss.^S',  §  u. 

4  carefully  numbered,  filed  and  kept  in  the  office  of  the  register.    Copies  cf^l'ffs,  §6. 


2300 


COURTS   OF  INSOLVENCY. 


[Chap.  216. 


of  all  parts  of  the  records  and  of  records  of  prior  proceedings  in  insolvency  5 

deposited  in  his  office,  certified  by  the  register,  shall  be  prima  facie  6 

10  Gush.  545.  3  Gray,  252.  7 

4  Allen,  77.  5  Allen,  126.  99  Mass.  64.  130  Mass.  368. 


P.  S.  157.  §  6. 
R.  L.  163.  §  10. 
6  Met.  518. 

6  Cash,  iss!      evidence  of  the  facts  therein  stated 

362. 


Docket. 

Duties  of 

register. 

183-1,  329,  §  3. 

18.56,  284,  I  13. 

1858,  32; 

141,  §  5. 

G.  .S.  lis,  §§  7, 

8,  10. 

1865,  259.  §  2. 

P.  S.  157, 

§§  7-9. 

E.  L.  163,  §  11. 


Section  11,  Each  register  shall  keep  a  docket  with  an  alphabetical  1 
index  of  all  cases  in  his  court,  in  which  he  shall  enter  every  case  by  its  2 
appropriate  title  and  number  with  brief  memoranda  of  all  proceedings  .3 
and  papers  filed  therein.  The  docket,  books,  records,  documents  and  4 
papers  in  his  office  relative  to  insolvency  shall  at  all  reasonable  times  be  5 
open  to  public  inspection.  He  shall  make  computations  of  dividends  and  6 
orders  of  distribution,  shall  furnish  to  the  assignee  a  certified  copy  of  the  7 
schedules  of  creditors  and  assets  filed  in  each  case,  and  of  the  orders  of  8 
distribution,  and  with  each  copy  of  an  order  of  distribution  a  dividend  9 
sheet,  without  charge  therefor.  He  may  administer  oaths  in  proceedings  10 
before  the  court,  except  the  oath  named  in  section  eighty-eight.  11 


Warrants,  etc., 
when  retxirn- 
able,  etc. 
1848,  304,  §  6. 
1S5B,  2S4,  §  6. 
G.  S.  118,  §  11. 
P.S.  157,  §  lU. 
E.  L.  163,  §  12. 


Section  12.     Assignments,  and  processes  issued  by  the  court  shall  be  1 

under  its  seal,  and  shall  be  executed  and  obeyed  throughout  the  com-  2 

monwealth;  and  any  person  to  whom  they  are  legally  directed  may  serve  .3 

them  in  any  county.    Warrants  shall  be  returnable  not  less  than  ten  nor  4 

more  than  sixty  days  from  the  date  of  issue.  5 


Selection  of 
newspapers 
for  notices. 
1851,  138, 
G.  S.  lis,  §  12. 


Section  13.     Parties  to  insolvency  proceedings  may  select  the  news-  1 

papers  where  notices  ordered  upon  their  petitions  shall  be  published,  but  2 

the  court  may  order  the  notice  published  in  one  other  newspaper.  3 

P.S.  157,  §  11.  R.  L.  163,  §  13. 


pr°ovidTcourt  SECTION  14.  Each  county  shall  provide  suitable  court  rooms  and,  in 
i8s6!^284!'§  3.  the  town  where  the  registry  of  probate  and  insolvency  is  situated,  a 
^'i'llfli  12'  suitable  fireproof  room  where  the  records,  books,  documents  and  papers 
R.  L.  163,  §  14.   relative  to  the  business  of  the  court  and  the  records  in  cases  in  insolvency  . 


shall  be  kept. 


isie!"!!!',  §  23.       Section  15.     Expenses  attending  the  sessions  of  the  courts  and  the  1 

P.' I.'  157,' 1 13.'  transaction  of  business  therein,  for  blank  books,  records,  blank  forms  and  2 

R.  L.  163.  §  15.  stationery  necessary  for  the  business  of  the  courts  shall  be  paid  by  the  3 

commonwealth.  4 


i8"38,%63!§  18.  Section  16.  The  judges  or  a  majority  of  them  shall,  as  provided  in  1 
ilse!  ill!  I  lo!  section  thirty  of  chapter  two  hundred  and  fifteen,  from  time  to  time  2 
?§' 15^16'         make  rules  and  prescribe  forms  for  their  courts.  3 


p.  S.  157, 


14,  15. 


1893,  372,  §  1. 


R.  L.  163,  §  16. 


Jurisdiction 
of  supreme 
judicial  court. 
1838,  163,  §  18. 
1851,  327,  I  16. 
G.  S.  118,  §  16. 
P.  S.  157,  §  13. 
1894,  164,  §  4. 
R.  L.  163,  §  17. 


Section  17.     The  supreme  judicial  court  shall  have  general  superin-  1 

tendence  and  jurisdiction  of  cases  arising  under  this  chapter;  and,  except  2 

as  otherwise  provided,  may,   upon  the   bill,   petition  or  other  proper  3 

process  of  a  party  aggrieved,  hear  and  determine  the  case  as  a  court  of  4 

equity.  5 


4  Met.  302,  504. 

6  Met.  537. 

8  Met.  19. 

9  Met.  23. 

1  Gush.  449. 

2  Gush.  294. 
4  Gush.  448. 

7  Gush.  183. 

10  Gush.  173. 

11  Gush.  582. 


3  Grav,  239.  531. 

8  Grav,  316. 

9  Gray.  50,  335. 
13  Gray,  564. 
16  Gray,  137. 

4  Allen,  545. 

5  Allen,  530. 

6  Allen,  118,560. 

7  Allen,  57.  112. 
9  Allen,  197. 


107  Mass.  79. 
129  Mass.  129. 

131  Mas.s.  604. 

132  Mass.  466. 

138  Mass.  592. 

139  Mass.  84. 
Ill  Mass.  283. 
142  Mass.  47. 

145  Mass.  366,  444. 
150  Mass.  574. 


152  Mass.  223. 
155  Mass.  400. 
157  Mass.  33,  252. 

165  Mass.  S82. 

166  Mass.  379. 

168  Mass.  100,  103. 
171  Mass.  239. 
182  Mass.  208. 
199  Mass.  118. 
204  Mass.  432. 


Chap.  216.]  coltets  of  insolvency.  2301 

1  Section  18.     The  supreme  judicial  court  and  the  courts  of  insolvency  Rules  as 

2  shall  make  rules  requiring  notice  to  be  given  to  parties  interested  or  their  isgo,  420, 5  2. 

3  attorney  of  record  of  any  motion,  hearing  or  other  proceeding  before  said  ^' ''"  ^''^'  ^  ^*' 

4  courts. 

1  Section  19,    A  duly  authorized  attorney  at  law  may  enter  his  ap-  Appearance 

2  pearance  as  attorney  for  the  party  represented  by  him  in  any  proceed-  isalfiesnis. 

3  ing  in  a  court  of  insolvency.     Processes  and  notices  served  upon  such  ji;  |;  J57  ■  1 1|; 

4  attorney  shall  have  like  effect  as  if  served  upon  the  party  whom  he  ^^^'  f~^'  t  Jg 

5  represents. 

PETITION  BY  DEBTOR.      FIRST  MEETING. 

1  Section  20.     An  inhabitantjpf  the  commonwealth  owing  debts,  con-  Petition. 

2  tracted  while  such  inhabitant,  may  file  a  petition  in  the  court  of  insol-  \llf,  Jul  ^  ^' 

3  vency  for  the  county,  if  any,  where  he  last  resided  or  had  a  usual  place  Q^i; us.Vi?. 

4  of  business  for  three  consecutive  months,  otherwise  in  the  court  for  p^|''i^5^7^s  ig 

5  the  county  where  he  resides  or  has  a  usual  place  of  business,  stating  his  ^^3, 405, 1 1 

6  inability  to  pay  his  debts  and  his  willingness  to  assign  his  property  for  s  Met.  129. "  ' 

7  the  benefit  of  his  creditors,  and  praying  that  such  proceedings  may  be  4  AUen'  77, 170. 

8  had  as  are  provided  in  this  chapter.  6  Alien,  11s.  iss  Mass.  372. 

1  Section  21.     If  it  appears  to  the  satisfaction  of  the  judge  that  the  warrant  to 

2  debts  due  from  the  petitioner  amount  to  two  hundred  dollars  or  more,  he  1838^163^ 

3  shall  forthwith  sign  and  issue  a  warrant  to  the  sheriff'  of  the  county  or  I84i',l24,  §  1. 

4  one  of  his  deputies  ordering  him  forthwith  as  messenger  to  take  possession  }||y'  \lf  |  ^°- 

5  of  all  property  of  the  debtor  not  exempt  from  attachment,  and  of  all  his  i||*'  |0|'  §  '^■ 

6  deeds,  books  of  account  and  papers,  and  keep  the  same  safely  until  the  i?5^.'329,|  4 

7  appointment  of  an  assignee;  to  publish  notice  in  such  newspaper  or  news- 1879',  107. 

8  papers  as  the  warrant  specifies,  send  written  notice  by  mail  or  otherwise  r.  l.  103,  §  21. 

9  to  all  creditors  upon  the  schedule  furnished  him  by  the  debtor  and  to  7  cush.^ile. 

10  give  such  personal  or  other  notice  to  any  persons  concerned  as  the  war-  lesa^fi's.^lir. 

11  rant  orders.    Such  notice  shall  state  that  a  warrant  has  issued  against 

12  the  property  of  the  debtor;  that  the  pajTnent  of  any  debts  and  the  de- 

13  livery  of  any  property  belonging  to  such  debtor,  to  him  or  for  his  use,  and 

14  the  transfer  of  any  property  by  him  are  forbidden;   that  a  meeting  of 

15  the  creditors  of  the  debtor  to  prove  their  debts  and  choose  one  or  more 

16  assignees  of  his  property  will  be  held  at  a  court  of  insolvency  to  be  held 

17  at  a  time  and  place  stated  in  the  warrant,  not  less  than  ten  nor  more  than 

18  sixty  days  after  the  date  of  its  issue. 

1  Section  22.     The  messenger  shall  forthwith  demand  and  receive  from  Messenger 

2  the  debtor  and  other  persons  all  the  property  in  his  or  their  possession,  p?opert>\ 

3  ordered  in  the  warrant  to  be  assigned,  with  all  deeds,  books  of  account  and  g.^|;  if|;  |  f^. 

4  papers  of  the  debtor  relative  thereto.         p.  s.  157,  §  is.         r.  l.  les,  §  22. 

12  Met.  4G4.  2  Gush.  48.  8  Allen,  134.  148  Mass.  69. 


1  Section  23.     Upon  demand  by  the  messenger  under  the  preceding  Delivery  of 

2  section,  the  debtor  shall  forthwith  deliver  to  him  such  of  the  property  schedule  by' 

3  and  other  things  demanded  as  is  in  his  possession  or  power,  and  shall  is3s?h;3,  §  6. 

4  disclose  the  situation  of  such  portion  thereof  as  is  not  in  his  possession.  ^^^|;  'f'^^i  |  fj, 

5  The  debtor  shall  also,  except  as  provided  in  the  following  section,  within  f?'Jf'i5™'|i9 

6  three  days  after  the  date  of  the  warrant  make  on  oath  and  deliver  to  the  R-  l.  iu3',"§  23. 

7  messenger  a  schedule,  containing  a  full  and  true  account  of  his  creditors,  s  Cusi..  375. 

8  with  the  residence  of  each,  if  known  to  the  debtor,  and  the  amount  due  137  Mass.  224. 


2302 


COURTS  OF  INSOLVENCY. 


[Chap.  216. 


to  each,  and  the  nature  of  each  debt,  whether  founded  on  ■WTitten  security,  9 

account  or  otherwise,  and  also  the  true  cause  and  consideration  thereof,  10 

and  a  statement  of  any  existing  mortgage,  pledge  or  other  collateral  11 

security  given  for  its  payment.  12 


isse.'lflo'^"'^'        Section  24.     If  by  accident  or  mistake  such  schedule  is  not  delivered 

R.  L.  163,  §  24.  tQ  t}jg  messenger  within  said  three  days  it  shall  be  so  delivered  within 

such  time  thereafter  as  will  enable  the  messenger  to  comply  with  the 

warrant,  and  such  delay  shall  not  affect  the  granting  of  a  certificate  of 

discharge  unless  caused  by  the  debtor's  default. 


fbie  pro^p^rty"  SECTION  25.  If  the  court  finds  that  the  property  of  the  debtor  or  any 
G^i' us  1 2i'  P^^^  thereof  is  perishable  or  likely  to  deteriorate  in  value  before  an  as- 
p.  s.  157.  §  20.   signee  can  be  appointed,  it  may  order  the  same  sold  in  such  manner  as  it 

orders  under  the  direction  of  the  messenger  who  shall  hold  the  funds 

received  in  place  of  the  property  sold. 


R.  L.  163,  §  23. 


TO^race '°         Section  26.     After  warrant  has  issued  against  the  estate  of  an  insol-  1 

of'court^  °^'^"  vent  debtor  and  before  the  appointment  of  an  assignee,  the  judge  may  2 

1862, 179, 1 2^    order  the  messenger  to  commence  action  for  recovery  of  a  debt  due  the  3 

r'.  l.  163,  §  26.  debtor  or  do  any  other  act  which  might  be  done  by  an  assignee.    The  4 

messenger  shall  thereupon  in  his  own  name  commence  and  prosecute  5 

such  action  or  do  any  other  act  so  ordered  as  if  he  were  assignee.     If,  6 

upon  the  appointment  of  an  assignee,  an  action  or  proceeding  commenced  7 

by  the  messenger  has  not  been  determined,  the  assignee  may  in  his  own  8 

name  or  in  the  name  of  the  messenger  with  his  consent  prosecute  it  or  9 

otherwise  proceed.  10 


Delivery  of 
Schedule  of 
creditors,  etc., 
by  debtor  to 
register. 
1838,  163,  §  6. 
1841,  124,  §  2. 
1854,  329,  §  3. 
G.  S.  118.  §  22. 
1862,  179,  §  1. 
P.  S.  157,  §  22. 


Section  27.     The  debtor  shall,  except  as  provided  in  the  following  1 

section,  within  five  days  after  the  date  of  the  warrant  make  on  oath  and  2 

deliver  to  the  register  a  schedule  of  his  creditors  as  pro\'ided  in  section  3 

twenty-three,  and  a  schedule  of  all  his  property,  with  a  description  thereof,  4 

stating  where  situated,  and  all  encumbrances  thereon,  with  the  date  of  5 

each  and  the  consideration  thereof.  r.  l.  las,  §  27.  6 


Late  schedules. 
1863,  71. 
P.  S.  157.  §  23. 
R.  L.  163,  §  28. 


Section  28.  If  by  accident  or  mistake  such  schedules  are  not  de- 
livered to  the  register  within  said  five  days  they  shall  be  so  deli\ered 
before  or  at  the  first  meeting  of  the  creditors  and  such  delay  shall  not 
affect  the  granting  of  a  certificate  of  discharge  unless  caused  by  the 
debtor's  default. 


First  meeting, 
1838,  163,  §  6. 
1841,  124,  §  2. 
1848,  304,  §  S. 
1854,  329,  §  3. 
e.g.  118, 
§§  22,  23. 
P.  S.  157.  §  24. 
R.  L.  163,  §  29. 


Section  29.     At  the  meeting  held  in  pursuance  of  the  notice,  the  1 

messenger  shall  make  return  of  the  warrant  and  his  doings  thereon,  and  2 

deliver  to  the  register  the  schedule  of  creditors  received  from  the  debtor.  3 

If  the  court  finds  that  the  notice  to  creditors  required  by  section  twenty-  4 

one  has  not  been  given,  it  shall  adjourn  the  meeting  and  order  such  notice.  5 


Section  30.     If  the  debtor  dies  after  the  warrant  has  been  issued,  the     1 


Death  of 
debtor. 

G^s'ni'tii    proceedings  shall  be  concluded  in  like  manner  and  with  like  effect  as  if    2 
p.s:i57:§25:  he  had  lived.  r.l.ics,  §30.  3 


Ch.^P.  216.]  COUETS  OF  mSOL-VTENCY.  2303 


DEBTS   AND   PROOF  OF   CLAIMS. 

1  Section  31.     Debts  due  and  payable  from  the  debtor  at  the  time  claims 

2  of  the  first  pubhcation  of  notice  of  issuing  the  warrant  may  be  proved  isssfife,  §§  2. 

3  and  allowed  against  his  estate  at  any  meeting;   and  debts  at  that  time  g.  s.¥is^,^§  25. 

4  absolutely  due,  although  not  payable,  may  be  proved  and  allowed  as  if  r  i^es  111' 

5  payable,  with  a  discount  or  rebate  of  interest  if  no  interest  is  payable  by  ^  Met.  ei'^ 

6  the  contract.    Money  due  on  a  bottomry  or  respondentia  bond  or  policy  7  Met!  34s! 

7  of  insurance  may  be  proved  and  allowed,  if  the  contingency  or  loss  hap-  2"c'ush.^i73. 

8  pens  before  the  making  of  the  first  dividend,  in  like  manner  as  if  it  had  7  Culh.  III'. 

9  happened  before  the  first  publication  of  the  notice.     If  the  debtor  is  i^o^ayNos^' 

10  Liable  for  a  debt  by  reason  of  having  made  or  endorsed  a  bill  of  exchange  fo^Cray^eob 

11  or  promissory  note  before  said  first  publication,  or  of  the  payment  by  a  {Jq"'^^'!?''' 

12  party  to  a  bill  or  note  of  a  part  of  the  money  secured  thereby,  or  of  pay-  is  Gray!  274. 

13  ment  of  an  amount  by  a  surety  of  the  debtor  in  a  contract,  if  the  pay-  5  auL;  133, 

14  ment  is  made  before  the  making  of  the  first  dividend,  such  debt  may  be  g  Aiien.  314. 

15  pro\ed  and  allowed  as  if  due  and  payable  by  the  debtor  before  the  first  lio^Ma'ss.^sts. 

16  publication.    All  demands  against  the  debtor  for  or  on  account  of  goods  \ll  H^^-  H^- 

17  or  chattels  wrongfully  obtained,  taken  or  withheld  by  him,  may  be  proved  J^s  Mass.  iii. 

18  and  allowed  as  debts,  up  to  the  value  thereof. 

156  Mass.  515.  166  Mass.  379.  177  Mass.  224.  220  Mass.  486. 

157  Mass.  33.  174  Mass.  470.  1S5  Mass.  178.  224  Mass.  347. 

1  Section  32.     An  equitable  liability  of  an  insolvent  debtor  may  be  Equitable 

2  proved  and  allowed  against  his  estate  in  like  manner  and  subject  to  like  i8^s4!^293. 

3  conditions  as  a  legal  claim.  R.  l.  les,  §  32.  8  AUen,  ssi. 

141  Mass.  283.  143  Mass.  326.  158  Mass.  388.  177  Mass.  224. 

1  Section  33.     If  any  of  the  property  of  a  debtor  consists  of  a  lease  Leases,  etc. 

2  or  written  agreement,  whereby  he  is  liable  for  the  rent  therein  reserved  p.s.'i.l7.'§  26. 

3  or  for  the  use  and  occupation  of  premises  as  therein  stipulated,  tlie  as-  fs/'Mass'.  i6^8.' 

4  signee  at  any  time  may,  and  upon  written  request  by  the  debtor,  or  by  flo^iass  73 

5  the  lessor  or  those  having  his  estate  in  the  premises  shall,  within  twentv  }t§  il^^"-  J?^- 

„      ,  „  ,  °,  .    .  „,     f .         ,  ,  *     155  Mass.  3S9. 

6  days  alter  such  request,  by  a  writing  filed  in  the  case,  elect  to  accept  245  u.  s.  597. 

7  and  hold  under  said  lease  or  agreement  or  to  disclaim  it.    If  he  elects  to 

8  disclaim,  such  lease  or  written  agreement  shall  be  considered  to  have 

9  been  surrendered  as  of  the  day  when  said  disclaimer  was  so  filed.    If  the 

10  debtor  is  discharged,  he  shall  be  discharged  from  all  liability  under  or  by 

11  reason  of  said  lease  or  agreement,  whether  the  assignee  does  or  does  not 

12  so  disclaim  it;  and  the  lessor  or  those  having  his  estate  in  the  premises 

13  may  prove  any  damages,  caused  by  such  surrender,  as  a  debt  against 

14  the  e.state  of  the  debtor;  but  this  section  shall  not  apply  to  leases  or 

15  written  agreements  as  aforesaid  in  force  on  the  twentj'-second  day  of 

16  April  in  the  year  eighteen  hundred  and  seventy-nine. 

1  Section  34.    Mutual  credit  or  mutual  debts  between  the  debtor  and  f838°^i'63,  §  3. 

2  a  creditor  shall  be  set  off  and  the  balance  allowed  or  paid.  ^-  ^-  ^i^-  ^  26. 

p.  S.  157,  §  27.  5  Cush.  194.  3  Allen,  111.  138  Mas.s.  330. 

R.  L.  163.  §  34.  3  Grav,  257.  4  Allen,  367.  148  Mass.  396. 

6  Met.  537.  4  Gray,  284.  131  Mass.  14.  223  Mass.  553. 

10  Met.  194.  7  Gray,  425.  137  Mass.  262. 

1  Section  35.    The  assignee,  by  written  assignment  of  a  non-negotia-  Proof  of  claim 

2  ble  legal  chose  in  action,  may  prove  a  claim  in  insolvency,  in  his  own  thereof""" 


2304 


COUKTS   OF   INSOLVENCY. 


[Ch.\p.  216. 


1897, 402.         name,  subject  to  all  defences  and  rights  of  counter-claim,  recoupment  or    3 

'  *■    ■  set-off  to  which  the  debtor  would  have  been  entitled  if  the  claim  had  been    4 

proved  in  the  name  of  the  assignor.  5 


Mortgage, 
pledge  or  lien. 
183S.  163,  §  3. 
G.  ,S.  US.  §  27. 
P.  S.  157,  §  2S. 
R.  L.  163,  §  36. 
0  Met.  305. 

8  Met.  19. 

2  Cush.  294. 

3  Cush.  469. 

4  Cush.  99. 
4  Gray,  553. 
6  Grav,  523. 

9  Gray,  55. 

11  Gray,  134, 
261. 

12  Grav.  27. 
15  Gray,  3S1, 
453. 

9  Allen,  175. 


Section  36.     A  creditor  having  a  mortgage  or  pledge  of  property  of  1 

tlie  debtor,  or  a  lien  thereon,  to  secure  payment  of  a  debt  claimed  by  2 

him,  may  require  such  property  to  be  sold,  and  the  proceeds  applied  3 

toward  pajTnent  of  his  debt,  and  he  shall  be  admitted  as  a  creditor  for  4 

the  residue.    The  sale  shall  be  made  in  such  manner  as  the  court  orders  5 

and  the  creditor  and  assignee  shall  execute  necessary  and  proper  deeds  6 

and  papers.     If  the  creditor  does  not  require  such  sale  and  join  in  the  7 

conveyance,  he  may  release  and  deliver  to  the  assignee  the  property  S 

held  as  security,  and  be  admitted  as  a' creditor  for  all  of  his  debt.    If  the  9 

property  is  not  so  sold  or  released  and  delivered  the  creditor  shall  not  10 

prove  any  part  of  his  debt.             iso  Mass.  132.             133  Mass.  71, 534.  1 1 


134  Mass.  291. 
137  Mass.  412. 


138  Mass.  515. 
143  Mass.  376,  455. 


150  Mass.  317. 
175  Mass.  547. 


Mortgage  re- 
corded more 
than  four 
months  after 
date. 
1888,  393. 
R.  L.  163,  §  37 


Section  37.  A  mortgage  of  land  recorded  more  than  four  months 
after  its  date  shall  not  be  valid  against  an  assignee  of  the  estate  of  the 
mortgagor  if  insolvency  proceedings  are  begun  within  one  year  from  the 
recording  of  the  mortgage.  les  Mass.  85.  172  Mass.  384. 


Allowance  for 
legal  services. 
1889,  420. 
R.  L.  163,  §  3S. 
150  Mass.  343. 


Section  38.     A  mortgage  or  pledge  of  property,  or  payment  of  money  1 

given  or  made  by  an  insolvent  debtor  for  legal  services  rendered  or  to  be  2 

rendered  in,  or  in  contemplation  of,  insolvency  proceedings,  shall  be  valid  3 

for  such  amount  as  the  court  allows.    An  appeal  from  the  decision  of  said  4 

court  shall  be  allowed  in  the  manner  pro\'ided  in  section  forty-fi^■e.  5 


Claims  to  be 
proved  on  oath. 
1S3S,  163,  §  4. 
1848,  304.  §  14. 

1851,  189,  §  1; 
349.  §  1. 

1852,  189, 
§U,2.       ^ 
1856,  284,  5  35. 
G.  S.  118,  §  28. 
P.  S.  157,  §  29. 
R.  L.  163.  §  39. 
8  Allen,  581. 
139  Mass.  84. 
147  Mass.  122. 


Section  39.  No  debt  shall  be  proved  or  allowed  unless  the  creditor, 
or,  if  he  resides  in  a  foreign  country  and  the  debt  is  fouiifled  on  a  con- 
tract made  by  the  debtor  with  the  consignee  or  agent  of  the  creditor 
residing  in  the  United  States,  such  consignee  or  agent  makes  oath  in  sub- 
stance as  follows: 

I,  ,  do  swear  that  ,  of  ,  by  (or  against) 

whom  proceedings  in  insolvency  have  been  instituted,  at  and  before  the  date 
of  such  proceedings  was  and  still  is  justly  and  truly  indebted  to  me  in  the  sum  of 
,  for  which  sum  or  any  part  thereof  I  have  not,  nor  lias  any  other 
person  to  my  use,  to  my  knowledge  or  behef,  received  any  security  or  satisfaction 
whatever,  beyond  what  has  been  disposed  of  agreeably  to  law.  And  I  do  further 
swear  that  said  claim  was  not  procured  by  me  for  the  purpose  of  influencing  the 
proceedings  in  tliis  case.  And  I  do  further  swear  that  I  have  not  directly  or  in- 
directly made  or  entered  into  any  bargain,  arrangement  or  agreement,  express  or 
implied,  to  sell,  transfer  or  dispose  of  my  claim,  or  any  part  of  my  claim,  against 
said  debtor,  nor  have  directly  or  indirectly  received  or  taken  or  made  or  entered 
into  any  bargain,  arrangement,  or  agreement,  e.xpress  or  implied,  to  take  or  re- 
ceive directly  or  indirectly  any  money,  property,  or  consideration  whatsoever  to 
myself,  or  to  any  person  or  persons  to  my  use  or  benefit,  under  or  with  any  under- 
standing or  agreement,  express  or  imphcd,  wherel)y  my  vote  for  assignee  or  my 
assent  to  the  debtor's  discharge  is  or  shall  be  in  any  way  affected,  influenced, 
or  controlled,  or  whereby  the  proceedings  in  this  case  are  or  shall  be  affected, 
influenced  or  controlled. 


No  claim  shall  be  allowed  unless  all  the  statements  set  forth  in  the  oath    6 
are  true.  7 


CbL^P.   216.]  COUETS   OF  INSOLVENCY.  2305 

1  Section  40.     If  the  creditor  is  disabled  by  absence  from  the  common-  oath  by 

2  wealth,  illness  or  other  cause  from  proving  his  claim,  the  above  oath  may  issT.Tsg, 

3  be  made  by  his  agent  or  attorney  testifying  to  the  best  of  his  knowledge  |j^  g'  f  ,g  §  29 

4  and  belief;   but  the  court  may  require  further  proof  of  the  statements  RL^ies  §40 

5  therein. 

1  Section  41.    The  oath  may  be  made  within  the  commonwealth  before  Before  whom 

2  a  justice  of  the  peace,  notary  public  or  special  commissioner  and,  with-  made"''^  ""^ 

3  out  the  commonwealth,  before  a  justice  of  the  peace,  notary  public  or  Jlsl;  gs^'s^g*' 

4  commissioner  for  Massachusetts,  and,  if  the  creditor  is  in  a  foreign  coun-  ^g-|- 1^|  |  !"• 

5  try,  before  an  ambassador,  minister,  consul  or  vice-consul  of  the  United  ^^°'?^Y-^ii 

6  States.     But  the  court  may  at  any  time  require  the  affiant  to  appear  ism,  its.  §  4.' 

•  R   L    163    5  41 

7  personally  before  it  to  be  further  interrogated  on  oath.    The  debtor  and  3  bray,  lis. 

8  any  party  proving  a  debt  may  be  examined  on  oath  in  presence  of  the 

9  judge  on  all  matters  relative  thereto. 

1  Section  42.     If  a  claim  is  presented  for  proof  before  the  election  of  an  Postponement 

2  assignee,  and  the  court  is  of  opinion  that  the  validity  or  right  of  such  is56?'284,  §  33. 

3  claim  ought  to  be  investigated  by  the  assignee,  it  may  postpone  proof  of  p.f.iw.'lfi' 

4  the  claim  till  after  the  assignee  is  chosen. 

R.  L.  163,  §  42.  16  Gray,  137.  165  Maaa.  582. 

1  Section  43.     A  person  who  has  accepted  a  preference,  having  reason-  ciaima  not  to 

2  able  cause  to  belie\e  that  it  was  made  or  gWen  by  the  debtor  contrary  isss.ws, §  lo. 

3  to  any  provision  of  this  chapter,  shall  not  prove  the  debt  or  claim  on  g .Is'.' ns,' |  ll.' 

4  account  of  which  such  preference  was  made  or  given,  nor  receive  a  divi-  r.  l.\o3'_|  43. 

5  dend  thereon.  172  Mass.  227.  177  Mass.  257. 

1  Section  44.    The  court  shall  allow  all  debts  proved  and  shall  cause  Allowance  and 

2  a  list  thereof  to  be  made  and  certified  by  the  register.     It  may  upon  cWmT'"*  °' 

3  application  by  the  assignee,  a  creditor,  or  the  debtor,  examine  on  oath  G^I'nl.'Hs 

4  any  person  who  has  made  proof  of  a  claim  and  may  summon  any  person  ^^g'f^y'  ^  ^■ 

5  to  give  evidence  relative  thereto,  and  may  alter  or  expunge  such  claim  if  H  34, 35'. 

6  the  evidence  shows  it  to  be  founded  in  whole  or  in  part  in  fraud,  illegality  iss  Mass'.  592.' 

«  •    ,    1  145  Mass.  444. 

7  or  mistake.  les  Mass.  582.  190  Mass.  507. 

1  Section  45.     A  supposed  creditor  whose  claim  is  wholly  or  in  part  Appeal. 

2  rejected  or  an  assignee  who  is  dissatisfied  with  the  allowance  of  a  claim  g.  s.'u8,'§  34. 

3  may  appeal  from  the  decision  to  the  superior  court;  but  no  appeal  shall  isss,  384,  §  5.' 

4  be  allowed  unless  claimed  and  notice  thereof  given  to  the  register,  to  be  ^olshflVi.*^' 

5  entered  with  the  record  of  the  proceedings,  and  also  to  the  assignee  or  |  c"^};;  I™- 

6  creditor,  as  the  case  may  be,  within  ten  days  after  the  decision  appealed  ^  g^^''  ^s^ 

7  from.    The  appeal  shall  be  entered  at  the  return  day  of  the  superior  court  ^  ^y<^y- 1*^- 

8  for  the  county  next  after  the  expiration  of  fourteen  days  from  the  time  1  Ai'ien,  403. ' 

9  of  claiming  it.    If  the  appellant  in  writing  waives  his  appeal  before  the  hi  Masslsog! 

10  entry  thereof,  proceedings  may  be  had  in  the  court  of  insolvency  as  if  295.^''"'^'  ^^' 

11  no  appeal  had  been  taken.  las  Mass.  582. 

1  Section  46.    Upon  the  entry  of  an  appeal  the  appellant  shall  file  in  Proceedings. 

2  court  a  statement  of  his  claim  substantially  as  in  a  declaration  at  law.  a^l,' n^l,' |  .35. 

3  The  subsequent  pleadings  and  proceedings  shall  be  substantially  as  in  r.l.\m',\46. 

4  an  action  at  law,  except  that  no  execution  shall  be  awarded  against  the  ^^^  ^^'^^-  ^^*- 

5  assignee  for  the  amount  of  a  debt  found  due  the  creditor. 


2306 


COUHTS  OF  INSOLVENCT. 


[CiLiP.   216. 


Judgment  on 
appeal.  Costa. 
1S38.  163.  §  4. 
G.  S.  lis.  I  36. 
P.  S.  157,  §  38. 
R.  L.  163.  §  47. 
7  Met.  85. 


Section  47.    The  final  judgment  of  the  court  shall  be  conclusive,  and  1 

the  lists  of  debts  shall,  if  necessary,  be  altered  to  conform  thereto.    The  2 

prevailing  party  shall  be  entitled  to  costs,  to  be  taxed  and  recovered  3 

as  in  an  action  at  law;  if  recovered  against  the  assignee,  they  shall  be  4 

allowed  out  of  the  estate.  5 


Evidence  of 
withdrawal 
of  claim. 
1852.  189,  §  3. 
G.  S.  118,  §  37. 
P.  S.  157,  5  39. 
R.  L.  163,  §  48. 


Section  48.     A  bill  of  exchange,  promissory  note  or  other  instrument  1 

used  as  evidence  upon  the  proof  of  a  claim  and  left  in  court  or  deposited  2 

in  the  registry  may  be  delivered  by  the  register  to  the  person  who  used  3 

it,  upon  his  filing  a  copy  thereof  attested  by  the  register,  who  shall  also  4 

endorse  upon  it  the  name  of  the  party  against  whose  estate  it  has  been  5 

proved  and  the  date  and  amount  of  any  dividend  declared  thereon.  6 


Choice  of 
assignee. 
1838.  163,  §  3. 
1838,  141.  §  1. 
G.  S.  lis. 
15  38,  39. 
1862.  179,  I  3. 
1879.  95.  §  2. 
P.  S.  157. 
1140.41. 
R.  L.  163.  §  49. 
165  Mass.  317. 


ASSIGNMENT  .iND   ASSIGNEE. 

Section  49.  The  creditors  shall,  subject  to  the  court's  approval,  1 
choose  one  or  more  assignees  of  the  estate  of  the  debtor  in  the  presence  2 
of  the  court  at  the  first  meeting.  The  choice  shall  be  made  by  a  majority  3 
in  value  of  the  creditors  who  have  proved  their  debts;  but  if  the  number  4 
of  creditors  present  amounts  to  &ye  and  less  than  ten,  the  votes  of  two  5 
at  least,  and,  if  the  number  of  creditors  amounts  to  ten  or  more,  the  votes  6 
of  three  at  least,  shall  be  necessary  for  a  choice,  and  no  creditor  having  7 
a  preferred  claim  shall  vote  thereon,  except  on  so  much  of  said  claim  as  8 
exceeds  the  amoimt  preferred  by  law.  If  no  choice  is  made  by  the  creditors  9 
at  said  meeting,  the  court  shall  appoint  one  or  more  assignees.  If  an  10 
assignee  so  chosen  or  appointed  fails  within  four  days  to  accept  in  ■UTiting  11 
the  trust,  the  court  may  fill  the  vacancy.  The  court  may  appoint  addi-  12 
tional  assignees  or  order  a  new  election,  or  it  may  at  the  first  meeting  13 
without  an  election  appoint  one  or  more  disinterested  assignees.  14 


Bond  of 
assignee. 
1844, 178.  §  11. 
1853.  116. 
G.S.  118. 
§5  40,41. 
1862.  179,  5  4. 
1879,  245,  §  9. 
P.  S.  157, 
5§  42,  43. 
R.  L.  163.  5  50. 
4  Gray,  286. 
6  Gray,  364. 


Section  50.     The  court  at  any  time  may,  and,  upon  WTitten  request  1 

by  one  fourth  in  number  and  value  of  the  creditors  who  have  proved  their  2 

claims,  shall,  require  the  assignee  to  file  a  bond,  approved  by  the  judge,  3 

to  the  judge  and  his  successors  in  office,  conditioned  for  the  faithful  per-  4 

formance  of  his  duties,  which  shall  enure  to  the  benefit  of  all  creditors  5 

proving  their  claims  and  may  be  prosecuted  in  like  manner  as  an  admin-  6 

istration  bond.     An  assignee  failing  to  give  a  bond  within  such  time  as  7 

the  court  orders,  not  exceeding  ten  days  after  notice  to  him  of  such  8 

order,  shall  be  removed  and  another  appointed  by  the  court.  9 


Assignment 
by  judge. 
1838,  163,  §  5. 
G.S.  118,  5  42. 
P.  S.  157,  5  44. 
R.  L.  163,  5  51. 
13  Gray,  18. 


Section  51.     The  judge  shall,  by  an  instrument  under  his  hand,  1 

assign  and  convey  to  the  assignee  all  the  property  of  the  debtor,  not  2 

exempt  from  attachment,  and  all  his  deeds,  books  and  papers  relative  3 

thereto.  9  Alien,  156.  97  Mass.  246.  153  Mass.  311.  4 


^Inment^and         SECTION  52.     The  Hssignce  shall  forthwith  cause  the  assignment  to  be  1 

i83s"i63  §  11    recorded  in  the  registry  of  deeds  in  each  county  or  district  where  there  2 

G. s.'iis.'§43.'  is  land  of  the  debtor  upon  which  it  may  operate;   and  shall  give  such  3 

R.  L.  163, 5  52.  public  notice  of  his  appointment  as  the  judge  may  order.  4 

5  .\Jlen,  126.  102  Mass.  437.  130  Mass.  368.  219  Mass.  211. 


Agent  of 

non-resident 

assignee. 

1889,  313. 

1893,  118. 

R.  L.  163,  §  53. 


Section  53.    An  assignee  appointed  in,  but  residing  out  of,  the  com-  1 

monwealth  shall  not  receive  the  instrument  of  assignment  until  he  shall  2 

have  appointed  an  agent  as  provided  in  sections  eight  to  ten,  inclusive,  3 

of  chapter  one  hundred  and  ninety-five,  and  said  sections  shall  apply  to  4 


CH-iP.  216.]  COUBTS  OF  INSOLVENCY.  2307 

5  such  appointment  except  that  said  writing  shall  be  filed  in  the  registry 

6  of  insolvency.    Notice  of  a  new  appointment  of  an  agent,  with  his  name 

7  and  address,  shall  be  given  in  the  next  notice  required  to  be  given  by  the 

8  assignee,  or  as  the  court  may  order. 

1  Sfxtion  54.     The  assignment  shall  vest  in  the  assignee  all  the  prop-  Effect  of 

2  erty  of  the  debtor,  not  exempt  from  being  taken  on  execution,  which  he  is38"iif3!*i  s. 

3  could  have  lawfully  sold,  assigned  or  conveyed  at  the  time  of  the  first  q *s'  j^|;  ^  ^°- 

4  publication  of  the  notice  of  issuing  the  M-arrant  in  case  of  voluntary  ilgg^'/jl^-^  7 

5  proceedings,  or  at  the  time  of  the  first  publication  of  notice  of  the  fil-  is79, 245!  1 3. 

6  ing  of  the  petition  in  case  of  involuntary  proceedings,  and  shall,  subject  p.  s.'i57,'§46. 

7  to  the  following  section,  dissolve  any  attachment  on  mesne  process  made  2  Met.  258. 

8  not  more  than  four  months  prior  to  the  said  first  publication.    The  as-  tH''^'  '^^' 

9  signment  shall  vest  in  the  assignee  all  debts  due  the  debtor  or  a  person  Isy'^''  ^*®' 

10  for  his  use,  and  all  liens  and  securities  therefor,  and  all  his  rights  of  action  l^^^-  ^^^' 

11  for,  and  of  redeeming,  property.     The  assignee  may  redeem  all  mort-  e  Met.  537. 

12  gages,  conditional  contracts,  pledges  and  liens  of  or  upon  any  property  of  9  Met!  23' 
1.3  the  debtor,  or  sell  it  subject  to  such  mortgage  or  other  encumbrance,  and  393"''  ' 

14  if  a  mortgage  is  foreclosed  pending  proceedings  in  insolvency  and  before,  iocush^92*^' 

15  or  within  sixty  days  after,  the  appointment  of  an  assignee  the  assignee  3  G*?a5^!'245^ 

16  may  redeem  the  same  within  sixty  days  after  his  appointment,  with  reme-  39s.^^    ^^^ 

17  dies  similar  to  those  provided  for  the  redemption  of  mortgages  before  ssg. 

18  foreclosure.  15  Gray.  aie.  1  Alien,  373,  666. 

6  Allen,  126,  382,  582.  125  Mass.  469.  153  Mass.  311. 

8  Allen,  20,  134,  302,  597.  133  Mass.  140,  515.  154  Mass.  302. 

10  Allen,  258, 460,  468.  134  Mass.  247.  159  Mass.  420. 

11  Allen,  345.  135  Mass.  299.  163  Mass.  350,  530. 

12  Allen,  345.  139  Mass.  33,  84.  172  Mass.  384. 

98  Mass.  305.  140  Mass.  169.  185  Mass.  68. 

99  Mass.  63.  144  Mass.  168, 207,  281.  201  Mass.  554. 

100  Mass.  446,  453.  147  Mass.  8.  146'U.  S.  303. 
102  Mass.  475.                                  149  Mass.  158,  310.  175  U.  S.  396. 

1  Section  55.     If  a  debtor  whose  property  is  attached  conveys  before  Attachments, 

2  judgment  in  the  action  any  part  of  such  property,  and  subsequently  i8ri,''i24"§  s.' 

3  thereto  and  before  execution  issues,  proceedings  are  commenced  by  or  Us?;  247. 

4  against  him  as  an  insolvent  debtor,  or  if  a  dissolution  of  an  attachment  p|iif'||f 

5  under  the  preceding  section  might  pre\'ent  the  property  attached  from  ?m /I-q^  *^- 

6  passing  to  the  assignee,  the  court  in  which  proceedings  in  insolvency  are  13  Met.  20b. 

7  pending  or  to  which  the  writ  of  attachment  is  returnable,  may,  upon  4  Gray'  429! 

8  application  on  or  before  the  day  of  the  third  meeting  of  creditors  by  a  .5  Alien',  452'. 

9  person  interested,  for  cause,  order  the  lien  created  by  the  attachment  to  iii^'"^"'  *^^' 

10  continue.    The  action  may  be  continued  or  execution  stayed  until  the  ^^g  '^'"^^  ^''^• 

1 1  assignee  is  chosen  and  takes  charge  of  the  action.     The  assignee  may  i^e  Mass.  147. 

12  proceed  with  the  action  and  levy  the  execution  at  the  expense  of  the 

13  estate;  and  the  amount  recovered,  exclusive  of  costs  due  to  the  original 

14  plaintiff,  shall  vest  in  the  assignee. 

1  Section  56.     The  assignee  shall  demand  and  receive  from  the  mes-  Assignee  to 

2  senger  and  all  other  persons  all  the  property  in  their  hands  assigned  or  receh-e  n°op- 

3  intended  to  be  assigned  under  this  chapter;    and  shall  keep  a  regular  aclountt.'"^'''' 

4  account  of  all  money  received  by  him  as  assignee,  to  which  every  creditor  cf^|'af'|]o' 

5  shall  at  reasonable  times  have  free  access,      p.  s.  157,  §  48.      r.  l.  i63,  §  56. 

1  Section  57.     The  assignee  shall,  unless  the  court  otherwise  orders,  at  !"Jf"',?|7v 

2  or  before  the  second  meeting  of  the  creditors,  make  and  return  on  oath  p.  s.'i57,'§4ji. 

3  to  the  court  a  true  inventory  of  all  the  debtor's  property,  of  all  debts     '    '      '    ^  ' 

4  due  the  debtor  or  another  person  for  his  use,  of  all  his  rights  of  action 


2308 


COURTS  OF  INSOLVENCY. 


[Cbap.  216. 


for  and  of  redeeming  property,  which  the  assignment  has  vested  in  such  5 

assignee  and  which  have  come  to  his  possession  or  knowledge.     The  6 

property  included  in  such  inventory  shall  be  appraised  in  like  manner  as  7 

the  estate  of  a  deceased  person,  and  the  appraisal  returned  at  or  before  8 

said  meeting.  9 


Assignee  to 
account  for 
property  at  ap- 
praised value. 
1861,  104.  §  2. 
P.  S.  157,  §  50. 
R.  L.  1G3.  §  58. 
10  Cush.  173. 
98  Mass.  305. 
116  Mass.  5S9. 
154  Mass.  51. 


Section  58.     The  assignee  shall  account  for  all  property  of  the  debtor  1 

vested  in  him  by  the  assignment,  at  the  appraised  value,  except  as  herein  2 

provided.    He  shall  make  no  profit  by  the  increase  and  sustain  no  loss  by  3 

the  decrease  or  destruction,  without  his  fault,  of  any  part  of  the  property;  4 

if  he  sells  any  thereof  for  more  than  the  appraised  value,  he  shall  ac-  5 

count  for  the  excess,  but  if  he  sells  for  less,  the  court  may,  if  it  appears  6 

that  the  sale  was  expedient  and  for  the  interest  of  all  concerned,  allow  7 

him  for  the  loss.    In  either  case  the  assignee  shall  return  to  the  court  a  8 

true  account  of  sales,  and  shall  sell  the  property  at  public  auction  unless  9 

the  court,  upon  petition  therefor,  otherwdse  orders.  10 


Assignee  to 
commence  and 
prosecute 
actions,  etc. 
1838,  163,  §  5. 
G.  S.  118,  §  47. 
P.  S.  157,  §  51. 
R.  L.  163,  §  59. 

4  Met.  604. 

I  C;ray,416. 
3  Gray,  239, 
3S2. 

10  Grav,  329. 

II  Gray,  222. 

5  Allen,  582. 
10  Allen,  36, 
460. 

130  Mass.  368. 
148  Mass.  299. 
137  Mass.  468. 


Section  59.  He  may  recover  all  the  property  and  debts,  in  his  ovm.  1 
name,  as  the  debtor  might  have  done  had  no  assignment  been  made.  2 
If  at  the  date  of  the  assignment  an  action  is  pending  in  the  name  of  the  3 
debtor  for  the  recovery  of  a  debt  or  other  thing  which  might  or  ought  to  4 
pass  to  the  assignee  by  the  assignment,  the  assignee  shall,  if  he  so  requires,  5 
be  admitted  to  prosecute  the  action  in  his  own  name,  in  like  manner  and  6 
with  like  effect  as  if  commenced  by  him.  No  action  pending  in  the  name  7 
of  the  assignee  shall  be  abated  by  his  death  or  removal;  but  the  sur-  8 
viving,  remaining  or  new  assignee,  as  the  case  may  be,  shall  be  admitted  9 
to  prosecute  the  action.  The  assignment  by  the  judge  shall  be  conclusive  10 
evidence  of  the  authority  of  an  assignee  to  sue.  i63  Mass.  350.  1 1 


Limitation  of 
actions.  . 

1895,  432. 
R.  L.  163.  §  60. 
7  Met.  348. 
219  Mass.  211. 


Drafts,  etc., 
assigned 
within  sir 
months  not 
to  be  offset. 
1856,  284,  §  28. 
G.  S.  118,  5  48. 
P.  S.  157,  §  52. 
R.  L.  163,  §61. 
8  Gray,  572. 


Property  to  be 
kept  separate 
bv  assignee. 
1838,  163,  §  11. 
G.  S.  118,  §49. 
P.  S  157,  I  63. 
R.  L.  163,  I  62. 


Section  60.    An  assignee  shall  not  commence  or  be  made  a  party  to  1 

a  proceeding  at  law  or  in  equity  relative  to  any  property  or  rights  thereto  2 

unless  it  is  commenced  within  six  years  from  the  time  when  the  right  3 

accrued  to  or  against  the  insolvent.    Section  nine  of  chapter  two  hundred  4 

and  sixty  shall  apply  to  such  proceedings.  5 

Section  61.     A   draft,  bill  of  exchange,  promissory  note,  claim,  de-  1 

mand  or  other  cause  of  action,  which  within  six  months  before  the  fil-  2 

ing  of  the  petition  by  or  against  a  debtor  has  been  assigned,  transferred,  3 

conveyed  or  delivered  to  a  person  indebted  or  liable  to  the  debtor  shall  4 

not  be  set  off  or  pleaded  in  defence  in  an  action  by  the  assignee  to  recover  5 

such  debt  or  liability;  but  the  assignee  may  recover  the  same,  notwith-  6 

standing  such  draft,  bill  of  exchange,  promissory  note,  claim,  demand  or  7 

cause  of  action,  if  the  person  to  whom  it  was  assigned,  transferred,  con-  8 

veyed  or  delivered  had  at  the  time  of  such  assignment,  transfer,  convey-  9 

ance  or  delivery  reasonable  cause  to  believe  the  debtor  insolvent.  10 

Section  62.    The  assignee  shall,  as  soon  as  may  be  after  receiving  1 

any  money  belonging  to  the  estate,  deposit  it  in  a  bank  in  his  name  as  2 

assignee,  or  otherwise  keep  it  distinct  and  apart  from  all  other  money  in  3 

his  possession;  and  shall  as  far  as  practicable  keep  all  other  property  of  4 

the  estate  separate  and  apart  from  all  other  property  in  his  possession,  5 

or  designated  by  appropriate  marks,  so  that  it  may  be  easily  and  clearly  6 

distinguished  and  not  be  exposed  or  liable  to  be  taken  as  his  property  or  7 

for  the  payment  of  his  debts.  8 


Chap.  216.]  courts  of  insolvency.  2309 

1  Section  63.     If  the  court  finds  that  the  distribution  of  the  estate  may  Temporary 

2  be  delayed  by  litigation  or  other  cause  it  may  order  the  temporary  invest-  Jfroperty.^whL. 

3  ment  of  the  money  of  such  estate  in  securities  approved  by  it,  or  may  cf^l.'i/s.§  so. 

4  authorize  its  deposit  in  a  bank  in  the  commonwealth  upon  such  interest  ^-  f^  ^yg'  \^^ 

5  as  the  bank  may  contract  with  the  assignee  to  pay  thereon. 

1  Section  64.    The  court  may  for  cause  order  the  messenger  or  as-  Carrying  on 

2  signee  to  carry  on  the  business  of  the  debtor  or  any  part  thereof  under  i897Tl2a^' 

3  its  direction.  R.  l.  i63,  §  64. 

1  Section  65.     The  assignee  shall  give  ^\Titten  notice  to  all  known  Notice  of 

2  creditors  by  mail  or  otherwise  of  all  dividends,  and  such  notice  of  meet-  meetSgs^  *° 

3  ings  after  the  first  as  the  judge  orders.  i846,  les,  §  4. 

1850,  319.  G.  S.  118.  §  51.  P.  S.  157,  §  55.  R.  L.  163,  §  65. 

1  Section  66.     He  shall  be  allowed  by  the  court  from  the  money  in  his  Compensation 

2  hands  the  necessary  disbursements  made  by  him  in  the  performance  of  isairfoa"!  ii. 

3  his  duty,  and  a  reasonable  compensation  for  his  services. 

G.  S.  118,  §  52.  P.  S.  157,  5  56.  R.  L.  163,  §  66. 

1  Section  67.     He  may,  under  the  direction  of  the  court  submit  any  Submission  to 

2  controversy  arising  in  the  settlement  of  claims  by  or  against  the  estate  i838,'^i63,°§  ii. 

3  to  the  determination  of  arbitrators  to  be  chosen  by  him  and  the  adverse  p.' f; Uj' | H; 

4  party;   and  may  under  such  direction  compromise  and  settle  any  such  n  cush^sL^^' 

5  controversy  if  in  his  judgment  it  is  proper  and  for  the  interest  of  the 

6  creditors. 

1  Section  68.     If  the  court  finds  that  the  title  to  any  property  of  the  Saie  of  perish- 

2  estate  in  the  hands  of  the  assignee  is  in  dispute  and  that  the  property  is  pendmgdwpute 

3  perishable  or  liable  to  deteriorate  in  value,  it  may,  upon  petition  by  the  ism.'Is. 

4  assignee  and  notice  to  the  claimant,  or  his  agent,  order  it  sold  under  pfisf'l^' 

5  the  direction  of  the  assignee,  who  shall  hold  the  proceeds  in  place  of  the  R-  l-  les,  §  68. 

6  property  sold;   and  such  proceeds  shall  be  the  measure  of  the  value  of 

7  the  property  in  an  action  or  controversy  between  the  parties.    But  this 

8  section  shall  not  prevent  the  recovery  of  the  property  from  the  possession 

9  of  the  assignee  by  replevin  commenced  at  any  time  before  the  court 
10  orders  the  sale. 

1  Section  69.     When  an  assignee  has  received  from  the  estate  assets  Accounts. 

2  sufficient  to  pay  fifty  per  cent  of  the  debts  and  claims  proved  against  G^s.'iil.'fss. 

3  it,  he  shall  certify  the  fact  and  render  his  accounts  therefor  to  the  court;  R.L.^es.^eg. 

4  and  when  he  has  received  twenty-five  per  cent  more  from  the  assets,  he 

5  shall  in  like  manner  certify  and  render  his  accounts  therefor.    He  shall 

6  also  certify  and  render  his  accounts  when  required  by  the  court. 

1  Section  70.     At  a  meeting  called  by  order  of  the  judge  in  his  discretion  Removal  of 

2  for  the  purpose,  and  which  shall  be  called  upon  the  petition  of  a  majority  credTtors.  ^ 

3  of  the  creditors  in  number  or  value,  the  creditors  may,  with  the  consent  ig59;69^'  ^  '^' 

4  of  the  court,  remove  an  assignee  by  such  vote  as  is  provitled  in  section  p ;  |;  jgf ■  |  ^q 

5  forty-nine  for  the  choice  of  assignee.  R.  l.  i63,  §  7o.  9  Cush.  382. 

1  Section  71.     If  the  court,  upon  complaint  of  any  person  interested  in  Removal  by 

2  the  estate,  after  notice  and  a  hearing,  finds  that  an  assignee  has  fraudu-  compiamT 

3  lently  received,  concealed,  embezzled  or  conveyed  away  any  of  the  money  (f*t  m,'  I  h'. 


2310 


COURTS   OF  INSOLVENCY. 


[CH-\P.   216. 


P.  S.  157,  §  61. 
R.  L.  163,  §  71. 
12  Gray,  144. 


or  other  property  of  the  estate  or  has  been  interested  in  an  action  rela-  4 

tive  to  said  estate  for  the  purpose  of  securing  to  himself  a  preference  5 

or  priority  over  the  other  creditors,  or  has  in  possession  or  control  any  6 

part  of  the  estate  with  intent  to  appropriate  the  same  unlawfully  to  his  7 

own  use,  or  has  been  guilty  of  a  fraudulent  act  relative  thereto  it  may  8 

remove  him.  9 


of'removaf."''^  SECTION  72.  The  court  may  also  remove  an  assignee  who,  having 
1858:  i4i! I?:  removed  from  the  commonwealth,  unreasonably  refuses  or  neglects  to 
p' I' 157' 1 62'  obey  a  lawful  order  for  calling  meetings  of  the  creditors,  to  settle  his 
R.  L.  163,  §  72.  accounts,  or  otherwise  to  perform  his  duties;  or  for  any  other  sufficient 
cause. 


Section  73.     An  assignee  may  with  the  consent  of  the  court  resign 


Resignation 
of  assignee. 

G^i' lis' 1 59    his  trust  and  be  discharged  therefrom.        p. s.  157, § ea.        r. l. les,  1 73. 


Filling  of 

vacancies. 

1838,  163, 

§§2.11. 

1858,  141, 

§§2,3. 

G.  S.  118,  §  60. 

P.  S.  157.  §  64. 

R.  L.  163,  §  74. 


Section  74.    Vacancies  caused  by  death  or  otherwise  in  the  office  of  1 

assignee  may  be  filled  by  the  court  or  in  its  discretion  by  an  election  by  2 

the  creditors  as  provided  in  section  forty-nine  at  a  regular  meeting  or  3 

at  a  meeting  called  therefor,  after  written  notice  thereof  to  all  known  4 

creditors  by  such  person  as  the  court  orders.  9  Alien,  197, 199.  5 


Effect  of  resig-       SECTION  75.     The  resignation  or  removal  of  an  assignee  shall  not  1 

1858.  i«.|3j    release  him  from  performing  all  things  required  of  him  for  the  proper  2 

p.' s.' 157.' §65.'   closing  up  of  his  trust  and  the  transmission  thereof  to  his  successors,  3 

'   '      '      '  nor  affect  his  liability  or  that  of  a  surety  on  his  bond.  4 


Vesting  of 
estate  upon 
death,  etc. 
1838,  163,  §  11. 
1848,  304,  §  12. 
1851,349,  I  2. 
G.  S.  118,  §  62. 


Section  76.     If  by  death  or  otherwise  the  number  of  assignees  is  1 

reduced,  the  estate  of  the  debtor  not  lawfully  disposed  of  shall  vest  in  2 

the  remaining  assignees,  or  the  persons  selected  to  fill  vacancies,  with  the  3 

same  powers  and  duties  relative  thereto  as  if  originally  chosen.  4 

p.  S.  157,  §  66.  R.  L.  163,  §  76. 


Former 
assignee  to 
execute  deeds, 
etc. 

1838,  163,  §  11. 
1851,349,  I  2. 
1858,  141,  §  4. 
G.  S.  118,  §  63. 
P.  S.  157,  §  67. 
R.  L.  163,  §  77. 


Section  77.     A  former  assignee,  his  executor  or  administrator,  upon  1 

request  and  at  the  expense  of  the  estate,  shall  make  and  execute  to  the  2 

new  assignee  all  deeds,  con^'eyances  and  assurances,  and  do  all  other  3 

lawful  acts,  necessary  to  enable  him  to  recover  and  receive  all  the  estate;  4 

and  the  court  may  pass  orders  to  secure  performance  of  the  duties  of  a  5 

former  assignee,  and  the  rights  and  interests  of  all  persons  interested  in  6 

the  estate.  7 


Preferred  cred- 
itors not  to 
vote  for,  etc. 
1856,  284,  §  34. 
G.  S.  118,  §  64. 
P.  S.  157.  §  08. 
R.  L.  163,  §  78. 


Section  78.     No  person  who  has  received  a  preference  contrary  to  1 

this  chapter  shall  vote  or  be  eligible  as  assignee;  but  no  title  to  property,  2 

sold,  transferred  or  conveyed  by  an  assignee  shall  be  affected  by  reason  3 

of  his  ineligibility.  4 


Penalty  for 
neglect,  etc. 


Section  79.  An  assignee  refusing  or  unreasonably  neglecting  to  exe- 
G.^1.' n 8,' 1 65.'  cute  an  instrument  when  lawfully  required  by  the  court,  or  disobeying 
E  L  Yos  \  79    ^  lawful  order  or  decree  of  the  court,  may  be  committed  to  jail  in  the 

county  where  found  or  where  he  resided  when  appointed,  until  he  obeys 

such  order  or  decree. 


Chap.  216.]  coukts  of  insolvency.  2311 

1  Section  80.     If  an  assignee  has  died  and  it  does  not  appear  of  record  Appointment 

1  1  •  1  11  1  1-1  upon  death  of 

2  that  his  accounts  iiave  been  settled  or  that  the  property  or  the  estate  has  assignee  with 

3  been  disposed  of  or  distributed  by  him,  and  the  court  in  which  proceed-  unsettled. 

4  ings  in  insolvency  were  commenced,  upon  petition  by  a  creditor  or  the  r.  l!  lea!  §  so. 

5  insolvent  or  a  person  claiming  under  either  of  them,  after  public  notice 

6  and  a  hearing,  finds  as  alleged  in  such  petition  that  there  is  property  to 

7  which  the  assignee  would  be  entitled  if  living  and  which,  if  real  estate, 

8  does  not  appear  of  record  to  have  been  conveyed  by  him  or  his  heirs, 

9  representatives  or  devisees,  it  shall,  unless  cause  is  shown  to  the  contrary, 

10  although  there  may  be  no  record  of  the  proceedings  in  the  case,  appoint 

11  an  assignee  who  may  be  required  to  give  bond  in  such  form  and  with  such 

12  surety  or  sureties  as  it  may  order.    Such  property  shall  thereupon  vest 

13  in  said  assignee,  shall  be  sold  at  public  or  private  sale  by  him  and  the  net 

14  proceeds  disposed  of  as  hereinafter  provided. 

1  Section  81.     The  assignee  shall  give  notice  of  his  appointment  in  a  Distribution. 

2  daily  newspaper  published  in  Boston  and  in  one  published  in  the  county  §§  2,'3.   ' 

3  where  appointed,  once  in  each  of  five  successive  weeks,  calling  upon  cred-  ^'  ^'  ^®^'  ^  *'• 

4  itors  to  file  their  claims  in  said  court  within  three  months  from  a  date 

5  stated  in  the  notice  subsequent  to  the  first  publication  thereof.    The 

6  court  shall  hear  and  decide  all  claims  so  filed  within  said  period,  subject 

7  to  appeal  in  like  manner  as  other  claims  in  insolvency,  and  all  other  claims 

8  shall  be  barred.    When  the  amount  due  on  such  claims  finally  allowed 

9  has  been  ascertained  or  upon  the  expiration  of  said  period  without  claim, 

10  the  assignee  shall  apply  for  a  decree  of  distribution,  which  shall  be  made 

11  after  public  notice,  shall  designate  the  claimants,  to  whom  and  in  what 

12  proportions  the  amount  in  his  hands  shall  be  paid,  and  shall  bind  all 

13  parties.     But  this  and  the  preceding  section  shall  not  divest  any  title 

14  held  by  a  bona  fide  purchaser  claiming  directly  or  indirectly  under  the 

15  insolvent. 

EXAMINATION  OF  DEBTOR. 

1  Section  82.     The  debtor  shall,  if  required  by  the  court  at  any  time  Examination  of 

2  before  the  granting  of  his  certificate,  upon  reasonable  notice,  attend  and  other  pereons. 

3  submit  to  an  examination  on  oath  before  the  court,  by  the  assignee  or  by  q  ^|'  j  ff;  |  gg 

4  a  creditor,  relative  to  his  trade  and  dealings,  his  property  and  debts,  and  p^s'iiv'iro 

5  all  matters  affecting  the  settlement  of  his  estate;  and  upon  cause  shown  R- l-  io3.^§  82. 

6  by  affidavit  of  any  person  interested  in  the  estate,  the  court  may  summon  *  Cush.  443. 

7  any  person  suspected  of  having  fraudulently  received,  concealed,  em-  2.50"^"^' 

8  bezzled  or  conveyed  away  property  of  the  debtor,  or  of  having  assets  of  ii^Afienflig. 

9  the  debtor  in  his  hands,  or  having  knowledge  of  anything  material  rela-  \ll  ^111'.  ill'. 

10  tive  to  the  assets  or  dealings  of  the  debtor,  to  appear  and  submit  to  an  ^''^  ^^'^^^-  ^^■ 

11  examination  in  like  manner.    If  the  person  summoned  fails  after  notice 

12  to  appear  and  submit  to  such  examination,  or  to  answer  such  interroga- 
ns tories  as  are  lawfully  propounded  to  him,  the  court  may  commit  him  to 

14  the  jail  of  the  county  until  he  submits  to  the  order  of  the  court.    The  judge 

15  may  require  such  examinations  to  be  in  writing,  signed  by  the  person 

16  examined,  and  filed  in  court. 

1  Section  83.     If  the  debtor  is  in  jail  on  a  proceeding  for  or  on  account  Examination  ot 

2  of  a  debt  or  claim  provable  against  his  estate,  at  any  time  before  the  grant-  prison. 

3  ing  of  his  certificate  and  if  his  attendance  is  required  before  the  court  or  g*^I.'ii8,'§  w. 

4  the  assignee,  or  at  a  meeting  of  his  creditors,  the  judge  may,  by  a  writ,  r.l.'ibs.^ss. 


2312 


COTJHTS   OF  INSOLVENCY. 


[Chap.  216. 


require  the  jailer  to  produce  the  debtor  for  said  purposes,  at  a  time  and    5 
place  specified  therein.  6 


Examination 
of  debtor  if  ill 
or  unable  to 
attend. 
183S,  163,  §  9. 
G.  S.  118.  §  68. 
P.  S.  157.  §  72. 
R.  L.  163,  §  84. 


Section  84.     If  the  debtor,  by  reason  of  imprisonment,  illness  or  1 

other  sufficient  cause,  is  unable  to  attend  before  the  court  or  the  assignee  2 

or  at  a  meeting  of  his  creditors,  the  court  or  a  person  appointed  by  it  and  3 

the  assignee,  or  a  person  appointed  by  him,  shall  conduct  the  examina-  4 

tion  of  the  debtor  in  jail  or  elsewhere,  if  within  the  commonwealth.  5 


Examination  of 
debtor  if  out  of 
the  common- 
wealth. 
1838,  163.  §  9. 
G.  S.  118.  §  69. 
P.  S.  157.  §  73. 
R.  L.  163,  §  85. 


Section  85.     If  the  debtor  is  without  the  commonwealth  and  unable  1 

to  return  and  personally  attend  at  any  of  the  times  and  for  the  purposes  2 

specified  in  this  chapter,  and  if  the  court  finds  such  absence  was  not  3 

caused  by  his  wilful  default,  and  as  soon  as  may  be  after  the  removal  of  4 

such  impediment  he  offers  to  attend  and  submit  to  an  examination  on  5 

oath  before  the  court  and  the  assignee  as  herein  provided  and  to  do  all  6 

things  required  by  this  chapter  for  obtaining  his  certificate,  he  shall  be  7 

entitled  thereto  in  like  manner  as  if  he  had  done  the  same  things  at  the  8 

times  herein  provided.  9 


Debtor  to  do 
all  necessary 
acts. 

1838.  163,  §  5. 
G.  S.  118,  §  70. 
P.  S.  157,  5  74. 
R.  L.  163.  §  86. 
157  Mass.  468. 


Section  86.     The  debtor  shall,  at  the  expense  of  the  estate,  make  1 

and  execute  such  deeds  and  writings  and  endorse  such  bills,  notes  and  2 

other  negotiable  papers,  draw  such  checks  and  orders  for  money  deposited  3 

in  banks  or  elsewhere  and  do  such  other  lawful  acts  as  the  assignee  4 

reasonably  requires  and  as  are  necessary  or  useful  to  confirm  the  assign-  5 

ment,  and  enable  the  assignee  to  demand,  recover  and  receive  all  property  6 

so  assigned,  especially  any  part  thereof  without  the  commonwealth.  7 


Failure  to  exe- 
cute instru- 
ments, etc. 
1838.  163.  §  23. 
G.  S.  118.  §  71. 
P.  S.  157.  §  75. 
R.  L.  163.  §  87. 
2  Met.  573. 
157  Mass.  468. 


Section  87.     If  the  debtor  refuses  or  unreasonably  neglects  to  execute  1 

an  instrument  lawfully  required  by  the  court  or  disobeys  a  lawful  order  2 

or  decree,  the  court  shall  issue  its  Marrant  to  a  civil  officer,  commanding  3 

him  to  arrest  and  commit  the  debtor  to  the  jail  in  the  county  where  he  4 

may  be  found,  or  where  he  dwelt  at  the  time  of  his  insolvency  until  he  5 

obeys  such  order  or  decree.  6 


Second 

meeting. 

Oath. 

1838,  163.  §  7. 

1854,  329,  §  3. 

G.  S.  118,  §  72. 

P.  S.  157,  §  76. 


SECOND   AND   THIRD   MEETINGS.      OATH   AND  DISCH.'IRGE. 

Section  88.     The  judge  shall  appoint  a  second  meeting  of  the  creditors, 
to  be  held  at  a  court  not  more  than  three  months  after  the  date  of  the 
warrant.     The  debtor  may  then  amend  and  correct  his  schedule  of  credi- 
tors, and  shall  take  and  subscribe  an  oath  before  the  court,  which  shall  be 
?i  Cu3h?i64^^'  certified  by  him  and  filed  in  the  case,  in  substance  as  follows: 

I,  ,  do  swear  that  the  account  of  my  creditor.?  contained  in  the 

schedule  made  and  signed  by  me  and  now  on  file  in  court  is  in  all  respects  just  and 
true,  according  to  my  best  knowledge  and  belief.  And  I  do  further  swear,  that  I 
have  delivered  to  ,  the  messenger,  all  my  estate,  not  exempt  from 

attachment,  except  such  as  has  been  necessarily  expended  for  the  support  of  my- 
self and  my  family,  and  all  my  books  of  account  and  papers,  relative  to  my  said 
estate,  that  were  within  my  possession  or  power  when  the  same  were  demanded 
of  me  by  the  messenger;  that  I  have  delivered  to  my  assignee  such  of  my  said 
estate,  books  and  papers  as  has  since  come  to  my  possession;  and  that  if  any 
other  estate,  books  of  account  or  papers,  whicli  shall  or  ought  to  be  assigned  and 
delivered  to  the  assignee,  shall  hereafter  come  to  my  knowledge  or  possession,  I 
wDl  forthmth  disclose  or  deliver  them  to  him.  And  I  do  further  swear  that  there 
is  not  any  part  of  my  property  made  over  or  disposed  of  in  any  manner  for  the 
future  benefit  of  myself  or  my  family,  or  in  order  to  defraud  my  creditors. 


Chap.  21G.]  courts  of  insolvency.  2313 

1  Section  89.     If  a  debtor  or  assignee  who  is  required  to  make  oath  oaths  out 

2  before  the  judge  is  unable  by  reason  of  illness  or  other  cause  to  attend  is62,"68.  §  i. 

3  personally  in  court,  the  oath  may  be  administered  out  of  court  by  the  r.l/i63,\89. 

4  judge  or  by  a  person  to  whom  a  commission  is  issued  therefor. 

1  Section  90.     If  by  reason  of  proceedings  in  the  supreme  judicial  court  prder  of  meet- 

2  or  for  other  cause,  a  failure  to  call  or  hold  a  second  or  third  meeting  1854, 329"§  i. 

3  within  the  time  provided  occurs,  the  court  may,  upon  petition  by  an  m-  1862, 179, 1  s.' 

4  terested  party,  order  such  meeting  held  at  a  subsequent  date.  k.l.  les,  §90. 

4  Cush,  529.  7  Gush.  341. 

1  Section  91.    Upon  the  death,  resignation  or  neglect  of  the  assignee,  order  of  meet- 

2  or  his  absence  from  the  county,  whereby  a  meeting  to  be  notified  by  him  IJJf orde/o?'^'^ 

3  is  liable  to  be  defeated,  it  may  be  notified  by  the  register  on  order  of  the  i8S4!'329,  §  2. 

4  judge  upon  petition  by  an  interested  party,  with  notice  at  the  discretion  psiIj'AU' 

5  of  the  judge  to  the  assignee  if  living.  R.  l.  lea,  §  91. 

1  Section  92.     The  judge  shall  appoint  a  third  meeting  of  the  creditors  Third  meeting. 

2  to  be  held  within  six  months  after  the  appointment  of  the  assignee.    If  discharge'  ° 

3  at  such  meeting  or  a  meeting  thereafter,  the  court  finds  that  the  debtor  \lll[  J7I;  1 3; 

4  has  made  a  full  disclosure  and  delivery  of  all  his  property  as  herein  q*^- f °g; | fj 

5  required,  and  that  he  has  conformed  to  the  laws  relative  to  insolvent  ^  |;  ^^^^  5.|°- 

6  debtors,  the  judge  shall  grant  him  a  certificate  which  shall  state  all  fidu-  11  Cush.  355, 

7  ciary  debts  exempt  from  discharge,  and  be  in  substance  as  follows:  7  Aiien,  112. 

''  ■  •^  ■=    '  139  Mass.  84. 

CoMMO>rWE.VLTH   OF   M.^SACHUSETTS. 

,  ss.  Court  of  Insolvency. 

To  all  people  to  whom  these  presents  shall  come,  I,  A.  B.,  judge  of  the  court  of  Form  of  cer- 
insolvency  for  said  county  of  ,  send  greeting.  discbarge. 

Whereas  it  has  been  made  to  appear  to  me  that  C.  D.,  of  B.,  in  said  county 
of  ,  whose  estate  has  been  assigned  for  the  benefit  of  his  creditors 

according  to  law,  has  made  a  full  disclosure  and  delivery  of  all  his  estate,  and  that 
he  has  conformed  to  the  provisions  of  law  in  that  behalf  made  and  provided,  I  do 
certify  that  said  C.  D.  is  absolutely  and  wholly  discharged  from  all  his  debts 
which  have  been  or  shall  be  proved  against  his  estate  assigned  as  aforesaid,  and 
from  all  debts  provable  against  his  estate,  and  which  are  founded  on  any  contract 
made  by  him  within  this  commonwealth  or  to  be  performed  within  the  same,  and 
from  all  debts  which  are  provable  aa  aforesaid,  and  which  are  founded  on  any 
contract  made  by  him,  and  due  to  any  persons  who  were  resident  within  this 
commonwealth  on  the  day  of  last,  being  the  day  (of 

the  first  publication  of  the  notice  of  the  warrant  issued  for  the  seizure  of  the 
estate  of  said  C.  D.  —  or  in  inrohmtary  proceedings  ■ —  of  the  first  publication 
of  the  notice  of  the  filing  of  the  petition  against  said  C.  D.) ;  and  from  all  claims 
against  him  for  or  on  account  of  any  goods  or  chattels  ■wTongfully  obtained,  taken 
or  withheld  by  him,  according  to  the  provisions  of  chapter  two  hundred  and  six- 
teen of  the  General  Laws.  And  I  do  further  certify  that  said  C.  D.  is  by  force 
of  said  chapter  forever  discharged  and  exempted  from  arrest  or  imprisonment  in 
an  action  or  upon  any  proceeding,  for  or  on  account  of  any  debt  or  demand  which  . 
might  have  been  proved  against  his  estate  assigned  as  aforesaid. 

Given  under  my  hand  and  the  seal  of  said  court  tliis  day  of 

in  the  year 

1  SECTif)N  93.     The  debtor  shall  thereupon,  except  as  provided  in  sec-  Effect  of 

2  tions  ninety-six  and   ninety-seven,   be  discharged   from   debts  proved  how  pWded. 

3  against  his  estate  and  from  all  debts  provable  under  this  chapter  and  g.'^I;  nl,' 1 76. 

4  founded  on  any  contract  made  by  him  while  an  inhabitant  of  the  com-  p^'g'i^^'/si 

5  monwealth,  if  made  within  the  commonwealth,  to  be  performed  tlierein  k.  l.  163,  §  93. 


2314 


COURTS   OF   IXSOL\-EXCY. 


[Chap.  216. 


4  Met.  302. 
8  Met.  129. 
10  Met.  332. 

1  Cush.  430. 

2  Cush.  33. 

6  Cush.  225. 

7  Cush.  592. 

8  Cush.  375. 

10  Cush.  523. 

11  Cush.  29, 
355. 

11  Gray,  400. 
13  Gray,  203. 
1  AUen,  456, 
512. 

5  Allen,  10. 

8  Allen,  314. 

9  Allen,  27. 


or  due  to  any  person  resident  therein  at  the  time  of  the  first  publication  6 
of  the  notice  of  the  issuing  of  the  warrant  in  voluntary  proceedings  or  of  7 
the  first  publication  of  the  notice  of  the  filing  of  the  petition  in  involun-  8 
tary  proceedings,  and  from  all  demands  for  or  on  account  of  any  property  9 
wrongfully  obtained,  taken  or  withheld  by  him,  as  provided  in  section  10 
thirty-one,  while  such  inhabitant.  Such  discharge  may  be  pleaded  by  a  11 
simple  averment  that  on  the  day  of  its  date  it  was  granted  to  the  debtor,  12 
setting  forth  a  copy  thereof,  as  a  full  and  complete  bar  to  all  actions  13 
brought  on  such  debts  or  claims.  The  certificate  shall  be  conclusive  evi-  14 
dence  of  the  fact  and  regularity  of  such  discharge.  15 


100  Mass.  87. 
103  Mass.  21. 
106  Mass.  563. 
Ill  Mass.  77. 
130  Mass.  236,  503. 
132  Mass.  186,  466. 


133  Mass.  557. 

134  Mass.  488. 

150  Mass.  353. 

151  Mass.  589. 
156  Mass.  515. 
165  Mass.  76. 


166  Mass.  577. 
168  Mass.  28. 

172  Mass.  154. 

173  Mass.  258. 
177  Mass.  224. 
1  WaU.  223. 


Discharge 
from  imprison- 
ment. 

1838.  163,  §  9. 
G.  S.  lis,  §  77. 
P.  S.  157,  §  82. 
R.  L.  163,  §  94. 


Section  94.     If  the  debtor  at  the  time  of  obtaining  his  certificate  is  1 

in  jail  on  a  proceeding  for  or  on  account  of  a  claim  provable  against  his  2 

estate,  he  shall  be  discharged  therefrom,  upon  producing  to  the  jailer  his  3 

certificate  granted  under  this  chapter.  iso  Mass.  4ii.  4 


Discharge 

from  arrest 

and  property 

exempt  from 

attacmnent, 

etc. 

1838.  163,  §  7. 

1850.  97. 

G.  S.  118,  §  78. 

P.  S.  157,  §  S3. 

R.  L.  163,  I  95. 

7  Met.  257. 

8  Met.  102. 
12  Allen.  365. 
136  Mass.  73. 
139  Mass.  112. 
150  Mass.  411. 
152  Mass.  64. 
164  Mass.  155. 
166  Mass.  126, 
128. 

170  Mass.  405. 


Section  95.  The  debtor  shall  also  be  forever  thereafter  discharged  1 
and  exempt  from  arrest  or  imprisonment  in  any  proceeding  for  or  on  2 
account  of  a  debt  or  demand  provable  against  his  estate.  And  the  prop-  3 
erty  of  the  debtor  acquired  by  him  subsequently  to  the  first  publication  4 
of  the  notice  of  the  issuing  of  the  warrant  in  voluntary  proceedings  or  to  5 
the  first  publication  of  the  notice  of  the  filing  of  the  petition  in  involun-  6 
tary  proceedings  shall  not  be  subject  to  attachment  by  trustee  process  7 
or  otherwise  in  any  action  to  recover  a  debt  which  may  have  been  so  8 
provable  and  due  to  any  person  not  resident  in  the  commonwealth  at  9 
the  time  of  such  first  publication,  or  founded  on  a  contract  existing  at  10 
the  time  of  said  first  publication  and  made  or  to  be  performed  out  of  the  11 
commonwealth.  172  Mass.  sio.  12 


Debts  not 
discharged. 
1844,  178,  §  3. 
1848,  3(M,  §  10. 
G.  S.  118,  §  79. 
1879,  245,  §  5. 
1881,257,  §  2. 
P.  S.  157.  5  84. 
1885,  353,  §  6. 
R.  L.  163,  5  96. 
1915,  23. 
10  Cush.  43. 
9  Gray,  211. 
15  Gray,  647. 
1  Allen,  219, 
456. 

5  Allen,  210. 
7  Allen,  264. 
9  Allen,  106. 
12  Allen,  366. 
100  Mass.  498. 
132  Mass.  283. 


Section  96.     No  debt  created  by  the  debtor's  defalcation  as  a  public  1 

officer,  executor,  administrator,  guardian,  conservator,  receiver,  trustee  2 

or  assignee  of  an  insolvent  estate,  or  by  his  fraud  or  embezzlement,  or  3 

claim  for  goods  attached  on  mesne  process  or  taken  on  execution  by  the  4 

debtor  as  an  officer  or  for  misfeasance  in  office,  or  debt  or  claim  against  5 

a  pledgee  created  by  his  sale  of  collateral  securities  in  a  manner  not  au-  6 

thorized  by  his  contract  with  the  pledgor  or  by  sections  eight  and  nine  7 

of  chapter  two  hundred  and  fifty-five  shall  be  discharged  under  this  8 

chapter,  but  the  dividend  declared  thereon  shall  be  payment  of  so  much  9 

of  said  debt  or  claim.     A  claim  for  necessaries  furnished  to  the  debtor  10 

or  his  family  shall  not  be  so  discharged  unless  the  claim  has  been  proved  11 

against  his  estate.  12 

158  Mass.  250.  171  Mass.  111.  176  Mass.  460. 


daim^omUted         Section  97.     A  Creditor  having  a  claim  against  an  insolvent  debtor 

1897. 4*7.'*"'*'    ""'hich  was  omitted  from  the  schedule  of  creditors  as  filed  by  said  debtor, 

R.  L.  163,  §  97.  and  who  has  not  proved  his  claim,  may,  subject  to  the  preceding  section, 

recover  from  the  debtor  in  an  action  at  law,  notwithstanding  a  discharge 

in  insolvency,  the  same  amount  that  the  other  creditors  received  who 

proved  their  claims. 


Ch.\P.   216.]  COURTS   OF  INSOLVENCY.  2315 

1  Section  98.     A  discharge  shall  not  release  a  person  liable  for  the  Persons 

2  same  debt  as  a  partner,  joint  contractor,  endorser,  surety  or  otherwise  n°ot  released! 

3  for  or  with  the  debtor. 

1838.  163,  §  7.  P.  S.  157.  §  85.  1  Grav,  623.  168  Mass.  102. 

G.  S.  118.  §  80.  R.  L.  163,  |  98.  10  Gray,  333.  170  Mass.  179. 

1  Section  99.     A  discharge  shall  not  be  granted  to  a  debtor  whose  Discharge 

2  assets  do  not  pay  fifty  per  cent  of  the  claims  proved  against  his  estate,  cr^eduor"'  °^ 

3  unless  the  written  assent  of  a  majority  in  number  and  value  of  his  credi-  \lll[  Jyl;  |  J; 

4  tors  who  ha\'e  proved  their  claims  has  been  filed  within  six  months  after  Q*g'  f^' | |j 

5  the  date  of  the  assignment.  P.  s.  157,  §  86. 

R.  L.  163.  §  99.  3  Gray.  252.  5  Allen.  10. 

8  Cueh.  104.  9  Gray,  364.  11  Allen,  566. 

1  Section  100.     A  discharge  shall  not  be  granted  to  a  debtor  a  second  ?pon''8ub1e- 

2  time  insolvent  whose  assets  do  not  pay  fifty  per  cent  of  the  claims  proved  ''"™''  ""^'^ 

r     t/  t/    r  tr  vencv. 

3  against  his  estate,  unless  the  written  assent  of  three  fourths  in  value  of  1|¥' J'^*' 

4  his  creditors  who  have  proved  their  claims  has  been  filed  within  six  is56. 257. 

5  months  after  the  date  of  the  assignment.    No  discharge  shall  be  granted  to  p.  s.'  157,'  §  sf.' 

6  a  debtor  a  third  time  insolvent,  unless  he  has  paid  all  the  debts  owed  f  106.^^^' 

7  by  him  at  the  time  of  his  previous  insolvency  or  has  been  voluntarily  re-  fo"Gray,^327. 

8  leased  therefrom  by  his  creditors.  ise  Mass.  224. 

1  Section  101.     A  creditor  may  assent  to  the  debtor's  discharge  under  Assent  of 

2  the  two  preceding  sections,  although  an  appeal  from  the  allowance  of  wUh'standfng 

3  his  claim  is  pending,  and  such  assent  shall  be  valid  if  the  claim  is  finally  issl.^Lgs. 

4  allowed.  G.  S.  IIS,  §  SS.  p.  S.  157,  §  88.  R.  L.  163,  §  101.  3  Gray.  252. 

1  Section  102.     In  determining  the  requisite  assent  of  creditors,  no  Preferred  cred- 

2  preferred  claim  which  is  paid  in  full,  and,  if  not  paid  in  full,  no  part  vote.°° 

3  thereof  which  is  paid,  shall  be  regardetl. 

1881,  257,  §  1.  P.  S.  157,  §  89.  R.  L.  163,  |  102. 


1  Section  103.     If  a  discharge  has  been  refused  a  debtor  for  the  sole  Discharge  of 

2  reason  that  the  assent  of  the  requisite  majority  of  his  creditors  has  not  by  accident!*^ 

3  been  seasonably  obtained  or  filed,  or  for  the  reason  that  he  has  not  taken  olTh.'" '"'"' 

4  the  oath  required  by  section  eighty-eight,  the  judge,  upon  petition  by  }^^^-  Jfg-  j  g^ 

5  the  debtor  within  two  years  after  the  date  of  the  assignment  and  with  ^^°'l^^'h*Q 

6  the  written  assent  of  a  majority,  or,  in  case  of  his  second  insolvency,  of  R  l  i63, 

7  three  fourths  in  number  and  value  of  the  creditors  who  have  proved  i6s  Mass.  232. 

8  their  claims,  may,  if  the  debtor  takes  the  oath  and  obeys  all  lawful  orders 

9  of  the  court,  grant  his  discharge,  if  after  notice  and  hearing,  he  finds 

10  that  the  failure  to  obtain  or  file  the  assent  was  caused  by  accident  or 

11  mistake  or  other  sufficient  cause  and  by  no  fault  of  his  own,  or  that 

12  the  omission  to  take  the  oath  was  owing  to  his  inability  by  reason  of 

13  illness,  accident  or  mistake  to  attend  and  take  such  oath. 

1  Section  104.     The  debtor  or  the  assignee  may,  within  ten  days  after  Appeal  on 

2  the  decision  of  the  judge  upon  the  question  of  granting  the  certificate  drscha^ge" 

3  of  discharge  to  a  debtor,  upon  notice  to  the  register  to  be  entered  with  }|||;  ^^\  |  \\, 

4  the  record  of  proceedings,  appeal  from  such  decision  to  the  superior  court,  p- 1-  \lf^  |  |f; 

5  The  appeal  shall  be  entered  at  the  return  day  next  after  the  expiration  of  J**^'  3^*'  ^  ^■ 

6  fourteen  days  from  the  time  of  claiming  it.    If  the  appellant  in  WTiting  §  lo*- 

7  waives  his  appeal  before  the  entry  thereof,  proceedings  may  be  had  in  7.\rien,'ii2.' 

8  the  court  of  insolvency  as  if  no  appeal  had  been  taken.  177  mms!  bsa. 


2316 


COURTS   OF  INSOLVENCY. 


[Chap.  216. 


Proceedings. 
1838,  163.  §  8. 
G.  S.  118,  §  86. 
1864.  254. 
P.  S.  157,  §  92. 
R.  L.  163, 
§  105. 


Section  105.     The  superior  court  shall,  upon  -nritten  demand  filed  1 

with  the  clerk  by  the  debtor,  the  assignee  or  a  creditor,  frame  issues  of  2 

fact  for  jury  trial,  which  shall  be  tried  as  nearly  as  may  be  as  an  action  -3 

at  law;  otherwise  the  appeal  shall  be  heard  and  determined  by  the  court.  4 

The  assignee  or  a  creditor  may  appear  and  object  to  the  allowance  of  the  5 

certificate.    If  upon  hearing  the  court  finds  that  the  debtor  has  made  a  6 

full  disclosure  and  delivery  of  all  his  estate  as  herein  required,  and  that  7 

he  has  conformed  to  this  chapter,  it  shall  cause  a  certificate  thereof  sub-  8 

stantially  as  provided  in  section  ninety-two  to  be  made  under  its  seal,  9 

signed  by  the  clerk  and  delivered  to  the  debtor.  10 


Forfeiture  of 
discharge  by 
fraud  of 
creditor. 
1838,  163,  §  10. 
1841,  124,  §  3. 
1844.  ITS,  §  8. 
1848.  304,  §  9. 
1856,  284,  §  31. 
1858,  54. 
G.  S.  118.  §87. 
1881,  235,  5  2. 
P.  S.  157,  §  93. 
1886.  322. 
1898,  465. 
R.  L.  163, 
§  106. 
8  Met.  490. 
13  Met.  62. 
8  Gush.  103, 
377. 

12  Gush.  596. 
6  Gray,  327. 
3  Allen.  583. 

5  Allen.  124. 

6  Allen,  327. 
11  Allen,  555. 

13  Allen,  182. 
1?8  Mass.  120. 
132  Mass.  233. 
136  Mass.  38. 
340. 

166  Mass.  379. 


MATTERS    AVOIDING    DISCHARGE. 

Section  106.  A  discharge  shall  not  be  granted  or  be  valid,  if  the  1 
debtor  has  wilfully  sworn  falsely  to  a  material  fact  in  the  proceedings,  2 
or  if  he  has  fraudulently  concealed  any  part  of  his  property  or  any  books  3 
or  writings  relative  thereto;  or  has  made  a  fraudulent  payment,  gift,  4 
transfer,  con\'eyance  or  assignment  of  any  part  of  his  property,  or  spent  5 
any  part  thereof  in  gaming;  or  if,  within  six  months  before  the  filing  of  6 
the  petition  by  or  against  him,  he  has  obtained  on  credit  from  a  person  7 
any  property  or  other  thing  of  value,  with  intent  not  to  pay  therefor;  8 
or  has  procured  his  property  to  be  attached,  sequestered  or  seized  on  9 
execution;  or  has  destroyed,  altered,  mutilated  or  falsified  any  of  his  10 
books,  documents,  papers,  writings  or  securities  or  has  made  or  been  11 
privy  to  the  making  of  any  false  or  fraudulent  entry  in  a  book  of  account  12 
or  other  document  with  intent  to  defraud  his  creditors;  or  with  intent  13 
to  defraud  his  creditors  has  expended,  invested  or  used  any  part  of  his  14 
property  in  the  erection,  alteration,  repair  or  location  of  a  building,  15 
portion  of  a  building,  structure  or  other  object,  on  land  owned  or  leased  16 
wholly  or  in  part  by  another  so  that  it  cannot  be  lawfully  removed;  or  17 
has  removed  himself  or  removed  or  caused  to  be  removed  any  part  of  his  18 
property  from  the  commonwealth  with  intent  to  defraud  his  creditors;  19 
or  if,  having  knowledge  that  a  person  has  proved  a  false  claim  against  20 
his  estate,  he  has  not  disclosed  the  same  to  his  assignee  within  one  month  21 
after  such  knowledge;  or,  except  as  provided  in  the  following  section,  22 
if,  being  a  merchant  or  tradesman,  he  has  not  kept  proper  books  of  23 
account.  A  discharge  shall  be  void  if  the  debtor  or  a  person  in  his  behalf  24 
has  procured  the  assent  of  a  creditor  thereto  by  a  pecuniary  consideration.  25 


b'ooS"fi^'"'°  Section  107.  If  the  sole  reason  for  not  granting  a  discharge  to  a 
1894,' 4'96!  *"''''■  debtor  is  that  he  has  not  kept  proper  books  of  account  and  if  no  fraud 
?'io7''*^'  ^^  proved  and  the  debtor  has  never  been  discharged  in  insolvency,  the 
judge  may  after  the  expiration  of  six  months  from  the  date  of  the  assign- 
ment grant  his  discharge  if  the  total  amount  of  the  claims  pro\'ed  do  not 
exceed  five  thousand  dollars  and  two  thirds  in  number  and  a  majority  in 
value  of  the  creditors  who  have  proved  their  claims  assent  thereto  in 
writing. 


Discharge 
avoided  by 
fraudulent 
preference. 
1838,  163.  §  10. 
1841,  124,  §  3. 
1856,  284,  I  25. 
G.  S.  118,  §88. 
P.  S.  157,  §  94. 
R.  L.  163, 
§  lOS. 


Section  108.     If  a  person,  in  contemplation  of  becoming  insolvent  1 

and  of  obtaining  a  discharge  in  insolvency,  makes  a  payment,  pledge,  2 

assignment,  transfer  or  conveyance  of  any  part  of  his  property,  directly  3 

or  indirectly,  absolutely  or  conditionally,  in  order  to  prefer  a  creditor  or  4 

person  having  a  claim  against  him,  or  who  is  or  may  be  under  any  liability  5 

for  him,  or  in  order  to  prevent  the  property  from  cOming  to  his  assignee  6 


Cblyp.  216.]  COURTS  OF  ixsol\t:ncy.  2317 

7  in  insolvency,  or  from  being  distributed  under  the  laws  relative  to  insol-  f^'e'n^iog'^'^' 

8  vency,  he  shall  not  be  entitled  to  a  discharge,  and  a  discharge,  if  received 

9  by  him,  shall  be  void. 

1  Section  109.     A  creditor  whose  debt  was  proved  or  provable  against  Discharge, how 

2  an  estate  may,  within  two  years  after  the  date  of  a  certificate  of  dis-  i879, 245;  §  4. 

3  charge,  apply  by  petition  to  the  court  granting  it  to  annul  the  same,  on  r'.  l.  les, 

4  the  ground  that  it  was  fraudulently  obtained,  specifying  all  acts  men-  i73°Mass.  431. 

5  tioned  in  section  one  hundred  and  six  relied  on  in  avoidance,  and  no 

6  evidence  shall  be  admitted  as  to  any  other  of  such  acts;  but  the  petition 

7  may  be  amended  in  the  discretion  of  the  court.    If  after  notice  to  the 

8  debtor  and  a  hearing  the  fraudulent  acts  charged  or  any  of  them  are 

9  proved  and  the  court  finds  that  the  creditor  had  no  knowledge  thereof 

10  until  after  the  granting  of  the  discharge,  it  shall  be  annulled;  otherwise 

11  it  shall  not  be  affected  thereby. 

PREFERENCES. 

1  Section  110,     If  a  person  who  is  insolvent  or  in  contemplation  of  Fraudulent 

rk-         1  •!•  •  ii(»  1         ni-  PI  *•»  pavments. 

2  insolvency,  withm  six  months  before  the  nling  of  the  petition  by  or  isss,  les,  §  10. 

3  against  him,  in  order  to  prefer  a  creditor  or  person  having  a  claim  against  isso!  234', 

4  him  or  who  is  under  any  liability  for  him,  procures  any  part  of  his  property  g  i^'iisi  §  S9. 

5  to  be  attached,  sequestered  or  seized  on  execution,  or  makes  a  payment,  r.l,\^63,^  ^^' 

6  pledge,  assignment,  transfer  or  other  conveyance  of  any  part  of  his  prop-  |  J}°j  ggg 

7  erty,  either  directly  or  indirectly,  absolutely  or  conditionally,  the  person  Lo'*"'  ^^^' 

8  receiving  such  payment,  pledge,  assignment,  transfer  or  conveyance,  or  si^iet.  496. 

9  to  be  benefited  thereby,  having  reasonable  cause  to  believe  such  person  469. 

10  is  insolvent  or  in  contemplation  of  insolvency  and  that  such  payment,  434. 

11  pledge,  assignment,  or  conveyance  is  made  in  fraud  of  the  laws  relative  acush:  let'. 

12  to  insolvency,  it  shall  be  void;  and  the  assignees  may  recover  the  property  iJ^cush'545. 

13  or  its  value  from  the  person  so  receiving  it  or  so  to  be  benefited.  594"^*^'  ^^^' 

4Grav,  111.  10  Allen,  491.  136  Mass.  237.  161  Mass.  274. 

6  Grav.  100.  11  Allen,  97.  13S  Mass.  18.  164  Mass.  182. 

11  Gray,  190.  14  Allen,  32.  142  Mass.  17.  166  Mass.  323. 

13  Grav.  18.  97  Mass.  342,  434.  144  Mass.  188.  168  Mass.  401. 

15  Gray.  358.  99  Mass.  535.  148  Mass.  69,  507.  169  Mass.  291. 

1  Allen.  109.  102  Mass.  475.  151  Mass.  64,  142.  171  Mass.  74,  341. 

2  .Mien.  18,  448.  128  Mass.  120.  152  Mass.  249.  177  Mass.  257. 

3  Allen,  32.  131  Mass.  604,  589.  153  Mass.  242,  502.  189  Mass.  301. 

5  Allen.  142.  133  Mass.  198.  156  Mass.  114.  204  Mass.  270. 

6  Allen,  567.  135  Mass.  299.  159  Mass.  363.  164  U.  S.  347. 
9  Allen,  492. 

1  Section  111.     If  a  person  who  is  insolvent  or  in  contemplation  of  ^'jeg'^etc"' 

2  insolvency,  within  six  months  before  the  filing  of  the  petition  by  or  isse,'  284,  §  27. 

3  against  him,  except  as  provided  in  section  thirty-eight,  makes  a  sale,  p.'s.'i57,'§9s.' 

4  assignment,  transfer  or  other  conveyance  of  any  part  of  his  property  to  s  Met.  62. 

5  a  person  having  reasonable  cause  to  believe  him  insolvent  or  in  con-  2\iien*'2o*' 

6  templation  of  insolvency,  and  that  such  sale,  assignment,  transfer  or  |  ^j}™;  ll\ 

7  other  conveyance  is  made  to  prevent  the  property  from  coming  to  his  lo'^l^nen^'lgi 

8  assignee  in  insolvency,  or  to  prevent  it  from  being  distributed  under  the  "  Alien!  97.^ 

9  laws  relative  to  insolvency,  or  to  defeat  the  object  of,  or  to  impair,  hinder,  is2. 

10  impede  or  delay  the  operation  and  effect  of,  or  to  evade,  any  of  said  pro-  99  Mass!  53'5," 

11  visions,  the  sale,  assignment,  transfer  or  other  conveyance  shall  be  void,  131  Mass.  5S9. 

1 2  and  the  assignee  may  recover  the  property  or  its  value  as  assets  of  the  es-  \ll  HHl]  29°: 

13  tate.    If  such  sale,  assignment,  transfer  or  conveyance  is  not  made  in  the  \l^  ^[m-  |gg- 
14:  usual  and  ordinary  course  of  business  of  the  debtor,  that  fact  shall  be  ^'?  .j      09 
15  prima  facie  evidence  of  such  cause  of  belief.  147  Mass.  3S8, 510. 

148  Mass.  48,  507.  153  Mass.  242.  ,502.  171  Mass.  341. 

150  Mass.  343.  159  Mass.  271.  363,  498.  164  U.  S.  347. 


2318 


COTJETS   OF  INSOLATNCT. 


[Ch.\p.  216. 


of'"'recedi°n°  SECTION  112.    The  SIX  preceding  sections  shall  not  apply  to  a  pajTnent 

s"t'o°|  of  money  or  transfer  of  property  in  pajinent,  not  exceeding  twenty-five 

G.  s.'  118.'  §  90.'  dollars  in  amount,  upon  a  debt  contracted  for  necessaries  furnished  the    3 

p.  S.  157,  §97,  ^ 


r'.  l'.  163,'  §  112.  debtor  or  his  family. 


1 

2 


Allowance 

to  debtor. 

1838.  163, 

§§  6,8. 

G.  S.  118,  §  92. 

P.  S.  157.  §  99. 

1888,  67. 

R.  L.  163, 

§  113. 

8  Cush.  109. 

160  Mass.  232. 


ALLOWANCE   AND  SLTIPLUS. 

Section  113.  The  debtor  shall  receive  from  the  assignee  one  dollar  1 
a  day  for  his  attendance  upon  the  court  or  the  assignee  if  required  under  2 
section  eighty-two.  He  shall  also  be  allowed  out  of  his  estate,  for  the  3 
necessary  support  of  himself  and  family,  such  amount  not  exceeding  the  4 
rate  of  three  dollars  a  week  for  each  member  of  his  family,  and  for  such  5 
time  not  exceeding  two  months,  as  the  court  orders.  A  debtor  who  is  6 
discharged  shall  be  allowed  five  per  cent  on  the  net  proceeds  of  all  his  7 
estate  received  by  the  assignee,  if  such  net  proceeds  after  such  allowance  8 
is  sufficient  to  pay  the  creditors  entitled  to  a  dividend  the  amount  of  9 
fifty  per  cent  on  their  debts;  but  the  allowance  shall  not  exceed  in  all  10 
five  hundred  dollars.  In  case  of  the  absence  of  the  debtor  or  his  failure  11 
to  apply  for  either  of  said  allowances  the  judge  may  allow  the  same  12 
amount  to  his  wife  or  any  minor  child  or  children  of  the  debtor,  13 


prid''in°case''°"  SECTION  1 14.  If  an  allowance  to  the  debtor  on  the  net  proceeds  of  his 
J83''g''^i63  5  5  estate  becomes  due  and  is  not  paid  to  him  in  his  lifetime,  it  shall  be  paid 
p'l'isf'li^o^d  ^^  '^'^  executor  or  administrator,  and  be  disposed  of  in  like  manner  as 
R.  L.  163',  §  114.  other  property  of  which  he  may  be  possessed  at  his  decease. 


Section  115.     If  after  the  pajTuent  of  all  debts  proved  a  surplus 


Surplus  to  be 
returned  to 

is38?i63.  §  13.  remains  in  the  hands  of  the  assignee,  it  shall  be  paid  or  reconveyed  to  or 
G.  s.  118,  §  94.  revest  in  the  debtor  or  his  legal  representatives.  P.  s.  157,  §  101. 

R.  L.  163,  §  lis.  6  Met, 203.  125  Mass.  469.  137  Mass.  397. 


Accounts. 

1838,  163,  §  12. 

G.  S.  118,  §  95. 

1862,  179,  §  6. 

P.  S.  157, 

I  102. 

1884,  126. 

R. L.  163, 

§  116. 

10  Gush.  173, 

498 

6  Gray,  364. 

14  Gray,  154. 


accounts  and  dividends. 

Section  116.     At  the  third  meeting  the  assignee  shall  exhibit  under  1 

oath  to  the  court  and  creditors  present  fair  and  just  accounts  of  all  his  2 

receipts  and  payments  relative  to  the  estate,  and  may  be  examined  rela-  3 

tive  thereto  by  the  court.    If  there  are  two  or  more  joint  assignees  their  4 

accounts  may  be  allowed  on  the  oath  of  one  of  them.    The  notice  of  the  5 

third  and  all  subsequent  meetings  of  creditors  shall  contain  a  statement  6 

that  the  accounts  of  the  assignee  will  be  presented,  and  that  creditors  7 

may  appear  and  object  to  the  allowance  thereof.    Special  notice  of  the  8 

presentation  of  accounts  may  be  ordered  at  other  times  by  the  court  9 

to  be  given  in  such  manner  as  it  orders.    In  all  cases  the  judge  shall  pass  10 

upon  the  reasonableness  of  the  accounts  of  assignees,  although  no  creditor  11 

objects.  12 


Di\'idend. 
1838,  163,  §  12. 
G.S.  US,  §  95. 
1879,  245,  §  6. 
P.  S.  157, 
§  103. 
R.  L.  163. 
§  117. 
8  Allen,  318. 


Section  117.  The  judge  shall  at  said  third  meeting  order  a  dividend 
of  the  property,  or  a  part  thereof,  among  the  creditors  who  have  pro\ed 
their  claims,  in  proportion  to  their  respective  debts;  but,  at  any  time 
after  the  assignment,  upon  request  of  the  assignee  or  a  creditor,  and  upon 
notice  to  the  creditors  and  assignee,  the  judge  may  order  the  payment, 
in  whole  or  in  part,  of  claims  entitled  to  priority  or  preference  under  this 
chapter. 


Cel^p.  216.] 


COURTS   OF  INSOLVENCY. 


2319 


1  Section  118.     In  the  order  for  a  dividend  under  the  preceding  section,  Preferred 

2  the  following  claims  shall  be  first  paid  in  full  in  the  following  order:  isas^^s, 

3  First,  The  twenty-five  dollars  or  expense  of  publication  as  provided  iL'^lt.  §  e. 

4  in  section  one  hundred  and  seventy  paid  by  a  creditor  and  the  legal  fees,  }|f^;  |^f ;  ^  24. 

5  paid  by  him,  of  an  officer  for  the  service  of  the  order  of  notice  to  the  q*|'ii| 

6  debtor  upon  the  original  petition  and  for  the  service  of  a  writ  of  injunc-  §§25.  ge! 

7  tion  issued  to  restrain  the  transfer  or  disposition  of  any  part  of  the  iss.  §11.' 

8  debtor's  property,  not  exempt  from  attachment,  and  from  any  interfer-  p.  s.'is?, 

9  ence  therewith.  1895.  sm.  §§  e-s.  r.  l.  i63,  §  iis.  215  Mass.  ise.  ^^  ^°*'  ^^^' 

10  Second,  The  legal  fees  of  the  messenger. 

11  Third,   Debts  due  to  the  United  States,  and  debts  due  to  and  taxes  issMass.  99. 

12  assessed  by  the  commonwealth,  or  a  county,  city  or  town  therein. 

13  Fourth,  Wages  to  an  amount  not  exceeding  one  hundred  dollars,  due  2  Cush.  371. 

14  to  a  clerk,  servant  or  operative  for  labor  performed  within  one  year  last 

15  preceding  the  first  publication  of  the  notice,  or  for  labor  for  the  recovery 

16  of  payment  for  which  an  action  commenced  within  one  year  after  the 

17  performance  thereof  is  pending,  or  has  terminated  within  one  year  from 

18  said  first  publication. 

19  Fifth,    Debts  due  to  physicians  for  medical  attendance  on  the  debtor 

20  or  his  family,  rendered  within  six  months  prior  to  the  institution  of  pro- 

21  ceedings  in  insolvency,  to  an  amount  not  exceeding  fifty  dollars. 

22  SLxth,  Debts  due  to  persons  who  by  the  laws  of  the  United  States  or  of 

23  this  commonwealth  are  or  may  be  entitled  to  a  priority  or  preference  in 

24  like  manner  as  if  this  chapter  had  not  been  enacted. 

25  Seventh,  Other  legal  fees,  costs  and  expenses  of  suit,  and  for  the  cus-  13  Gray,  307. 

26  tody  of  the  property  proved  as  preferred  under  section  one  hundred  and  152  Masai  sqb! 

27  seventy-four. 

1  Section  119.     Upon  petition  by  a  creditor  upon  whose  petition  a  Allowance  to 

2  warrant  has  issued  against  a  debtor  and  after  notice  to  such  debtor  and  ^r'edVtOT'for 

3  his  assignee,  if  any,  the  court  may  allow  as  a  preferred  claim  against  the  et""^"'  ^^^^' 

4  estate  such  amount  as  said  creditor  has  actually  paid  for  his  expenses  and  ^^l'  }J|- 

5  for  counsel  fees  incurred  for  services  rendered  upon  such  petition  and  5  iw. 

6  in  the  legal  proceedings  connected  therewith  prior  to  the  issuing  of  the 

7  warrant.    Such  petition  shall  be  verified  by  the  oath  of  the  creditor  and 

8  of  the  counsel  to  whom  such  money  was  paid. 

1  Section  120.     The  estate  shall  be  liable  for  wages  due  to  an  operative  wages  due  to 

2  from  another  operative  who  has  contracted  or  agreed  to  do  certain  fnmTnopeT&- 

3  specified  work  for  the  debtor,  to  the  amount  of  one  hundred  dollars,  for  under  contract. 

4  labor  actually  performed  on  such  work  within  one  year  last  preceding  p^s*'!!'?*'!  los. 

5  the  first  publication  of  the  notice,  and  in  the  division  of  the  estate  such  fjJb,^''''' 

6  wages  shall  have  the  priority  given  to  wages  due  to  operatives  under 

7  section  one  hundred  and  eighteen;   but  all  payments  under  this  section 

8  shall  be  charged  to  the  account  of  the  operative  who,  as  principal  has  con- 

9  tracted  or  agreed  to  do  the  work,  and  such  payments,  and  the  liability 

10  herein  imposed,  shall  not  exceed  the  amount  due  such  principal  operative 

11  for  such  work  performed  within  the  time  hereinbefore  mentioned.    This 

12  section  shall  not  apply  to  cases  within  the  provisions  of  sections  ninety- 

13  six  to  one  hundred,  inclusive,  of  chapter  one  hundred  and  fifty-nine. 


1  Section  121.     If  at  the  time  of  ordering  the  dividend  it  appears  Reservation 

2  probable  that  there  are  just  claims  against  the  estate  which  for  sufficient  creiStor".' 


2320 


COURTS  OF  INSOLVENCY. 


[Chap.  216. 


1838, 163.  §  12   reason  have  not  been  proved,  the  judge  in  ordering  the  dividend  shall  3 

p.'s.i57.'§  106.  leave  in  the  hands  of  the  assignee  an  amount  sufficient  to  pay  every  such  4 

§  121.     '         absent  creditor  a  proportion  ecjual  to  that  which  shall  be  then  paid  to  the  5 

other  creditors.    Such  amount  shall  remain  thus  unappropriated  in  the  6 

hands  of  the  assignee  until  the  final  dividend  is  declared,  or  until  the  7 

judge  orders  its  distribution.  8 


Unclaimed 
dividends. 
1883,  242. 
1897,  303,  §  1. 
R.  L.  163, 
§  122. 


Section  122.  If  a  dividend^  which  the  judge  has  declared  or  which  has 
become  payable  to  a  creditor  who  has  proved  his  claim  under  a  com- 
position confirmed  by  the  court  remains  for  six  months  unclaimed,  the 
assignee,  or,  in  a  case  of  composition,  the  register,  may  deposit  it  in  a 
savings  bank  or  other  like  institution  or  invest  it  in  bank  stock  or  other 
stocks,  as  the  court  may  order,  to  accumulate  for  the  benefit  of  the  per- 
son entitled  thereto.  Such  deposit  or  investment  shall  be  made  in  the 
name  of  the  judge  and  shall  be  subject  to  his  order  and  that  of  his  sue-  8 
cessors  in  office  as  hereinafter  provided.  The  person  making  such  de-  9 
posit  or  investment  shall  file  in  court  a  memorandum  thereof,  with  the  10 
original  certificate  or  other  evidence  of  title  thereto,  which  shall  be  al-  11 
lowed  as  a  voucher  for  such  payment.  When  the  person  entitled  to  the  12 
money  deposited  has  satisfied  the  judge  of  his  right  to  receive  the  same,  13 
he  shall  cause  it  to  be  transferred  and  paid  over  to  him.  14 


Unclaimed 
deposits. 
1897,  303,  § 
R.  L.  163, 
§  123. 
1908,  168. 


Section  123.  If  money  deposited  with  a  register  to  secure  the  pay-  1 
ment  of  fees  or  to  carry  out  a  composition  confirmed  by  the  court  remains  2 
unclaimed  for  one  year  after  the  depositor  or  other  person  is  entitled  to  3 
receive  it,  the  register  may,  under  the  direction  of  the  judge,  deposit  it  4 
in  a  savings  bank  or  invest  it  in  the  manner  and  subject  to  the  preceding  5 
section.  6 

All  moneys  deposited  with  the  registers  of  the  courts  of  insolvency  to  7 
secure  the  payment  of  fees,  and  in  composition,  remaining  unpaid  to  the  8 
persons  entitled  thereto,  or  to  their  attorneys,  for  more  than  ten  years  9 
after  the  date  of  deposit,  may  be  paid  over  to  the  state  treasurer.  The  10 
courts  of  insolvency  shall  have  full  power  to  regulate  such  payments  and  11 
to  decree  what  sums  shall  be  paid  and  the  time  of  payments  thereof.  The  12 
treasurer  shall  give  his  receipt  therefor,  which  shall  be  in  full  discharge  13 
of  the  register  for  the  same.  14 

Any  person  asserting  a  right  to  money  deposited  with  the  state  treas-  15 
urer  hereunder,  may  establish  the  same  by  petition  to  the  court  of  insol-  16 
vency  having  jurisdiction  over  the  original  case,  and  the  treasurer  shall  17 
pay  such  money  in  accordance  with  the  decree  of  said  court.  Such  sums  18 
as  are  not  so  paid  within  three  years  after  the  time  of  their  receipt  as  19 
aforesaid  by  the  state  treasurer  shall  escheat  to  the  commonwealth.  20 


dfridlnd.  Section  124.    The  assignee  shall,  at  such  time  as  the  judge  orders 

accourfts^         withiu  eighteen  months  after  his  appointment,  declare  a  second  dividend, 
cf^l'nl'lgs'  ^^  ^'^®  property  was  not  wholly  distributed  upon  the  first  dividend,  and 
p.' s.' 157.' §107.  shall  give  notice  of  a  meeting  of  all  the  creditors  of  the  debtor  therefor. 
§  124.     '         At  such  meeting  the  accounts  of  the  assignee  shall  be  produced  and  ex- 
amined as  provided  in  section  one  hundred  and  sixteen  and  settled  by 
the  court;   and  any  balance  in  the  hands  of  the  assignee  shall,  by  order 
of  the  judge  be  divided  among  all  the  creditors  who  have  proved  their 
debts,  in  proportion  thereto. 


CbL^P.   216.]  COURTS   OF   INSOLVENCY.  2321 

1  Section  125.     If  at  anv  time  before  the  final  dividend  anv  outstand-  saie  etc,  of 

_    .  ,    ,  ,  •       ,  11-  ,  V  •    1  outstanding 

2  ing  debts  or  other  property  due  or  belonging  to  the  estate  which  cannot  jg3o''',|\"-, ,~ 

3  in  the  opinion  of  the  court  be  collected  and  received  bv  the  assignee  with-  g.  s.'ii8,'§  99." 

4  out  unreasonable  or  inconvenient  delay,  remain  in  the  hands  of  the  as-  r'.  l.  les, 

5  signee  he  may  under  the  direction  of  the  court  sell  and  assign  such  debts     ^^^' 

6  or  other  property  in  such  manner  as  the  court  orders. 

1  Section  126.     An  action  upon  a  claim  sold  by  an  assignee  shall  be  Actions  on 

2  brought  in  the  name  of  the  purchaser.    The  fact  of  sale  and  of  purchase  assignees.     ^ 
.3  by  the  plaintiff  shall  be  set  forth  in  the  writ,  and  the  defendant  may  fs'lg^'igi. 

4  avail  himself  of  any  matter  of  defence  of  which  he  could  have  availed  p|  Jlf'fJog' 

5  himself  in  an  action  upon  the  claim  by  the  assignee.    Costs  in  such  ac-  ^-^^ i^s. 

6  tions  shall  be  recovered  by  or  against  the  plaintiff,  and  the  assignee  shall  1  Alien,  213. 

7  not  be  liable  therefor.  3  Alien,  99.  132  Mass.  SSS.  163  Mass.  70. 

1  Section  127.     The  second  dividend  shall  be  final;    but  if  an  action  Further 

2  relative  to  the  estate  is  then  pending  or  part  of  the  estate  is  outstanding  iss's.Tel,'  §  13. 

3  or  other  property  of  the  debtor  afterward  comes  to  the  hands  of  the  as-  p;  1;  \l~]  |  }?o; 

4  signee,  another  dividend  shall  be  made  by  order  of  the  judge.     Further  ?i27^'^'^' 

5  dividends  shall  be  made  in  like  manner  as  often  as  occasion  recjuires. 

1  Section  128.     No  creditor  whose  debt  is  proved  at  the  time  of  the  Former  divi- 

2  second  or  any  subsequent  dividend  shall  disturb  a  prior  dividend,  but  be'disturbed. 

3  he  shall  be  paid  so  far  only  as  the  funds  remaining  unappropriated  in  the  G^tni.'iioi. 

4  hands  of  the  assignee  are  sufficient  therefor. 

p.  S.  157,  §  111.  R.  L.  163,  §  128. 


petition  by  creditors. 

1  Section  129.     If  a  person  arrested  on  mesne  process  in  a  civil  action  Petition  by 

2  for  the  amount  of  one  hundred  dollars  or  more  founded  upon  a  claim  isis,  i63,  §  19. 

3  provable  against  the  estate  of  an  insolvent  debtor,  has  not  given  bail  Hf ta^'^*' "  ^' 

4  therein  on  or  before  the  return  day  of  such  process,  or  has  been  actually  HH'  ||^'  ^  ^• 

5  imprisoned  thereon  for  more  than  thirtv  davs;  or  if  a  person  whose  prop-  |,§  2*',??«  ,n, 

/,!!  11  "''■I'i'il  Cj.  b.  118,  §  103. 

D  erty  has  been  attached  on  mesne  process  in  such  action  founded  upon  is79. 245,  §  7. 

7  such  contract  has  not  before  the  return  day  of  such  process  dissolved  188U233! 

8  the  attachment  as  provided  by  law;  or  if  a  person  has  removed  himself  1890,431. 

9  or  any  part  of  his  property  from  the  commonwealth,  with  intent  to  defraud  }|gj;  201'.  ^  ^' 

10  his  creditors;  or  has  concealed  himself  to  avoid  arrest,  or  any  part  of  his  k''^' jbI' 

11  property  to  prevent  its  being  attached  or  taken  on  a  legal  process;   or  |i29^  ^.^ 

12  procured  his  arrest  or  his  property  to  be  attached  or  taken  on  legal  o  Met.  292! 

13  process;   or  made  a  fraudulent  payment,  conveyance  or  transfer  of  any  4Cush!i2i! 

14  part  of  his  property;    or,   being  a  banker,   broker,   merchant,  trader,  fcirayissb. 
1.5  manufacturer,  contractor,  builder  or  miner,  has  fraudulently  stopped  t  Gray!  329! 

16  payment,  or  has  stopped  or  suspended  and  not  resumed  payment  of  his  ^  g^J^'  IJ"- 

17  commercial  paper  within  fourteen  davs;  any  of  his  creditors  whose  claims  l^.'^''''y',*^,'^- 

10  11  •  1  •  *  1  7        1     1    11  •   1  •       *^  Allen,  118. 

18  provable  against  his  estate  amount  to  one  hundred  dollars,  may,  within  128  Mass.  120. 

19  ninety  days  thereafter,  or,  in  the  case  of  any  such  fraudulent  conveyance  ho  MkL.  385'. 

20  of  land,  within  ninety  days  after  it  has  been  recorded,  if  the  debtor  has  103  Mass' m! 

21  resided  in  the  commonwealth  within  one  year,  file  a  petition  under  oath 

22  in  the  court  of  insolvency  for  the  county,  if  any,  where  the  debtor  has 

23  last  resided  or  had  a  usual  place  of  business  for  three  consecutive  months 

24  before  the  filing  of  said  petition,  otherwise  in  the  court  for  the  county 

25  where  he  resides  or  last  resided,  or  has  or  has  had  a  usual  place  of  business. 


2322 


COURTS   OF   INSOLVENCY. 


[Ch.\p.  216. 


stating  the  facts  and  the  nature  of  their  claims  and  praying  that  his  26 
property  may  be  seized  and  distributed  according  to  this  chapter.  27 


pe'tit?on°Uc  Section  130.     The  register  shall  cause  notice  of  the  filing  of  such     1 

ilso'  ^46'  1 1'    petition  to  be  published  twice  in  not  more  than  two  newspapers,  and     2 

i88i!  235!  §  3.    shall  forthwith  make  and  file  a  certificate  of  the  fact  and  date  of  publi-    3 

R.  L.  163,       '  cation.     The  actual  expense  of  such  publication  shall  be  paid  from  the    4 

'^°'  amount  deposited  by  the  creditor  therefor  as  provided  in  section  one    5 

hundred  and  seventj-;  but  a  hearing  upon  the  petition  may  be  had  or  a    6 

warrant  issued  thereon  prior  to  the  completion  of  the  publication  of  said     7 

notice.    The  court  may,  after  the  commencement  of  proceedings  by  or    8 

against  the  debtor  and  before  the  hearing  upon  the  petition,  by  injunction    9 

restrain  the  debtor  and  any  other  person  from  making,  transferring  or  10 

disposing  of  any  part  of  the  debtor's  property  not  exempt  from  attach-  11 

ment,  and  from  any  interference  therewith;  and  if  probable  cause  appears  12 

for  believing  that  the  debtor  is  about  to  conceal  or  remove  from  the  13 

commonwealth  his  property  or  his  evidence  of  property,  or  any  part  14 

thereof  or  to  make  a  fraudulent  conveyance  or  disposition  thereof,  the  15 

judge  may  issue  a  warrant  under  his  hand  to  the  sheriff  of  the  county  or  16 

one  of  his  deputies,  ordering  him  forthwith  as  messenger  to  take  possession  17 

of  all  the  property  of  the  debtor,  not  exempt  from  attachment,  and  safely  18 

keep  it  imtil  the  further  order  of  the  court.  19 

Proceedings  SECTION  131.     If,  after  notice  of  the  petition  to  the  debtor  by  a  copy  1 

i83"Ti53  5 19   thsi'so^  served  upon  him  personally  or  left  at  his  last  and  usual  place  of  2 

G.s.'iis,'§io4.  abode,  and  a  hearing  of  the  petitioner  and  debtor,  or  a  default  by  the  3 

R.  L.  163,       ■  debtor  to  appear  in  pursuance  of  said  notice,  the  court  finds  the  facts  4 

6  liit.  518.        stated  in  the  petition  to  be  true,  the  judge  shall  forthwith  issue  a  warrant  5 

i37"Mass"224.   to  take  possession  of  the  property  of  the  debtor.    The  warrant  shall  be  6 

directed,  and  the  property  of  the  debtor  shall  be  thereupon  taken  and  7 

distributed  in  like  manner  and  with  proceedings  similar  to  those  herein  8 

pro\'ided  in  case  of  voluntary  petitions.  9 


stay  of  pro- 
ceedings. 


Section  132.  If  a  person  has  committed  an  act  of  insolvency  from 
G^"'i\f,'Ho'5  which  he  should  be  equitably  relieved,  the  court  may  upon  petition  by 
i8|o.  2«',  §  6.^'  ]iini^  \vith  or  without  notice  to  the  petitioning  creditor,  stay  proceedings 
1894. 139.  '  in  insohency  and  if,  upon  a  hearing,  it  finds  that  he  is  solvent  or  that  the 
fes'Mass.^vL'  proceedings  ought  to  be  stayed  it  may  dismiss  the  petition  in  insolvency. 


PETITION   BY   creditors   OF   INSANE   PERSON. 

freditOTs'S  Section  133.     Any  of  the  creditors  of  an  insolvent  insane  person, 

isso!  mr°°'  whose  claims  provable  against  his  estate  amount  to  one  hundred  dollars, 
ilsV  233  n^'^y  fil^  ^  petition  under  oath  in  the  court  of  insolvency  for  the  county, 

p.  s.'isT.'s  116.  if  any,  where  the  debtor  has  last  resided  or  had  a  usual  place  of  business 
il^l:  163'.  ^'  for  tiiree  consecutive  months  before  the  filing  of  said  petition,  otherwise 
^  ^^^"  in  the  court  for  the  county  where  he  resides,  or  has  a  usual  place  of  busi- 


ness, stating  his  insolvency  and  the  nature  of  their  claims,  and  praying 
that  his  property  may  be  seized  and  distributed  according  to  this  chapter. 
If  after  public  notice  and  the  appointment  of  a  guardian  ad  litem  for  such 
insane  person,  and  a  hearing,  the  court  finds  that  the  interests  of  the  10 
debtor  and  creditors  so  require,  the  judge  may  issue  a  warrant  to  take  1 1 
possession  of  the  property  of  the  debtor  and  thereupon  like  proceedings  12 
shall  be  had  as  in  the  settlement  of  estates  of  other  insolvent  debtors.        13 


ClL\P.   216.]  COURTS   OF  INSOLVENCY.  2323 

1  Section  1.34.     In  such  case,  the  schedules  of  creditors  and  of  property  Scheduieg. 

2  required  by  this  chapter  shall  be  made  and  filed  by  the  messenger,  upon  p^si'i'sV.'/uV. 

3  his  best  information  and  belief.    The  debtor  shall  not  be  required  to  attend  f  isi/'^^' 

4  at  any  meeting  of  creditors  nor  be  subject  to  examination,  unless  ordered 

5  by  the  court. 

1  Section  1.35.     Within  six  months  after  recovering  from  his  insanity.  Debtor,  after 

2  the  debtor  may  petition  the  court  for  his  discharge,  and  shall  thereupon  from  insanity. 

3  be  required  to  deliver  to  his  assignee  for  the  benefit  of  his  creditors  any  SisSiafl'J^ '"'^ 

4  property  which  was  in  his  hands  or  possession  or  to  which  he  was  entitled  p^f 'f5V^'§^u8. 

5  at  the  time  of  filing  the  original  petition,  and  which  had  not  come  into  fiss^*"^' 

6  the  hands  or  possession  of  his  assignee;    shall  make  a  full  disclosure 

7  thereof,  and  shall  take  and  subscribe  an  oath  that  he  has  so  done;  shall 

8  submit  himself  to  examination  thereon,  and  may  within  three  months 

9  after  the  filing  of  his  petition  file  the  written  assent  to  his  discharge  of 

10  a  majority  in  number  and  ^•alue  of  his  creditors  who  have  proved  their 

11  claims,  as  provided  in  section  ninety-nine.    If  the  court  finds,  at  a  meet- 

12  ing  of  the  creditors  called  therefor,  that  he  has  made  a  full  disclosure  and 

13  delivery  of  his  property  as  herein  required,  that  he  has  conformed  to  this 

14  chapter  so  far  as  applicable  and  that  his  assets  have  paid  fifty  per  cent  of 

15  the  claims  proved  against  his  estate,  or  that  the  written  assent  to  his 

16  discharge  of  a  majority  in  nmnber  and  value  of  his  cre<litors  who  have 

17  proved  their  claims  has  been  file<l,  the  judge  shall  grant  him  a  certificate, 

18  which  shall  state  all  fiduciary  debts  exempt  from  discharge  and  shall  be  in 

19  the  form  and  ha^-e  the  effect  provided  by  this  chapter  for  discharges  of 

20  other  insolvent  debtors. 


CONCEALMENT   OF  PROPERTY. 

1  Section  136.    A  debtor  who  after  notice  of  the  filing  of  a  petition  by  Concealment, 

2  or  against  him  secretes  or  conceals  property  belonging  to  his  estate,  or  any  prope°  ty. 

3  books,  deeds,  documents  or  writings  relative  thereto,  or  removes  or  causes  cf.ll.'ns.'Hoi;. 

4  to  be  remo^'ed  the  same  or  any  part  thereof  out  of  the  commonwealth,  or  ^-  ^  ^J^  ^  ^^^• 

5  otherwise  disposes  of  any  part  thereof,  in  order  to  prevent  it  from  coming  IgQ^jj^^^g  ^^g 

6  to  the  possession  of  the  messenger  or  assignee,  or  to  hinder,  impede  or 

7  delay  either  of  tiiem  in  recovering  or  recei\ing  the  same,  or  who  makes  a 

8  payment,  gift,  sale,  assignment  or  other  conveyance  of  property  belong- 

9  ing  to  his  estate;  or  spends  any  part  thereof  in  gaming,  or  otherwise  except 

10  such  as  may  reasonably  be  expended  for  the  support  of  himself  and  fam- 

11  ily,  not  exceeding  the  amount  allowable  by  law,  shall  be  punished  by  im- 

12  prisonment  in  the  state  prison  for  not  more  than  five  years,  or  in  jail  for 

13  not  more  than  t\\o  years. 

PARTNERSHIPS. 

1  Section  137.     Upon  petition  by  one  or  more  partners  who  are  in-  Petition  by  or 

2  solvent  to  the  court  for  the  county,  if  any,  where  the  partnership  has  last  n^^sSfp.^'"^'" 

3  had  a  usual  place  of  business  for  three  consecuti^'e  months  before  the  HHl  HI]  1 1\\ 

4  filing  of  such  petition,  otherwise  to  the  court  for  the  county  where  it  has  ^If.'nkVius. 

5  or  last  had  a  usual  place  of  business,  after  notice  to  the  other  partners  if  p^l^'j^g'/g  ,20 

6  within  the  commonwealth,  or  upon  petition  by  a  creditor  of  the  partners,  isss.  405,  §  4. 

7  the  judge  may  issue  a  warrant  as  provided  in  this  chapter,  upon  which  the  R.  l!  les, 

8  property  of  the  firm  and  the  separate  estate  of  each  of  the  partners,  not  i  Met.  398, 

9  exempt  from  attachment,  shall  be  taken,  and  the  creditors  of  the  firm  2  cush.  175. 


2324 


COUKTS   OF  INSOLVENCT. 


[Chap.  216. 


4  Cush.  127. 

5  Cush.  224. 
11  Cush.  236. 


and  the  separate  creditors  of  each  partner  may  prove  their  respective  10 
debts.  11 


3  Grav.  239,  539. 
6  Gray,  329. 


3  Allen.  554. 
101  Mass.  300. 


148  Mass.  269. 
167  Mass.  123. 


Choice  of  as- 
signee.   Joint 
and  separate 
property. 
1838,  163,  §  21. 
G.S.  118, 
§  109. 

P.  S.  157,  §  121. 
R.  L.  163, 
§  138. 
4  Cush.  99. 

9  Cush.  553. 

10  Cush.  45S, 
592 

4  Gray,  120. 

5  Gray,  574. 
10  Grav,  254, 
2fi0,  263. 

13  Gray,  114, 

462. 

5  Allen,  183. 

148  Mass.  269. 

160  Mass.  171. 

163  Mass.  352. 

165  Mass.  312. 

166  Mass.  379. 
177  Mass.  52. 


Section  138.  The  assignee  shall  be  chosen  by  the  firm  creditors  and  1 
shall  keep  separate  accounts  of  the  joint  property  of  the  firm,  and  of  the  2 
separate  estate  of  each  member  thereof;  and  after  deducting  from  the  3 
whole  amount  received  by  him  the  total  expenses  and  disbursements  4 
paid,  the  net  proceeds  of  such  joint  property  shall  be  appropriated  to  5 
pay  the  firm  creditors,  and  the  net  proceeds  of  the  separate  estate  of  each  6 
partner  shall  be  appropriated  to  pay  his  separate  creditors.  Any  balance  7 
of  the  separate  estate  of  a  partner  after  payment  of  his  separate  debts  8 
shall  be  added  to  such  joint  property  for  the  paj-ment  of  the  firm  cred-  9 
itors.  Any  balance  of  such  joint  property  after  payment  of  the  firm  10 
debts  shall  be  divided  and  appropriated  to  and  among  the  separate  estates  11 
of  the  several  partners  according  to  their  respective  rights  and  interests  12 
therein,  and  as  it  would  have  been  had  the  partnership  been  dissolved  13 
without  insolvency ;  and  the  amount  so  appropriated  to  the  separate  es-  14 
tate  of  each  partner  shall  be  applied  to  the  payment  of  his  separate  debts.  15 


^innlfshi  g  Section  139.     The  two  preceding  sections  shall  apply  to  insolvent  lim- 

G^i'ni'ino  ^*^*^  partnerships  formed  under  chapter  one  hundred  and  nine  or   the 
p.s.'i57,'§  122!  corresponding  provisions  of  earlier  laws;    but  the  separate  estates  and 
101  Mass. '300.'  separate  debts  of  the  special  partners  shall  not  be  subject  to  the  pro- 
ceedings against  the  partnership. 


Separate  allow-       SECTION  140.     Each  partner  shall  be  entitled  to  allowance  as  provided 
p|rtner  Jn  this  chaptcr  for  the  maintenance  of  himself  and  family;  and  the  auow- 

G.s.'iis,'  '  ance  from  the  net  proceeds  of  the  estates  as  provided  in  section  one 
p.  shbj.  §  123.  hundred  and  thirteen  shall  be  computed  on  the  firm  estate  and  also  on 
f'Ho.'''^'  each  of  the  separate  estates  as  if  there  had  been  a  separate  warrant 
i63"Mass°295.  against  each;  but  none  of  the  partners  shall  receive  in  all  more  than 
five  hundred  dollars. 


Certificate  of 
discharge  to 
each  partner. 
1838,  163,  §  21. 
G.S.  118, 
§  112. 
P.  S.  157,  §  124. 


Section  141.  The  certificate  of  discharge  shall  be  granted  or  refused 
to  each  partner  as  it  would  or  ought  to  be  if  the  proceedings  had  been 
against  him  alone;  otherwise  the  proceedings  against  partners  shall  be 
the  same  as  against  an  individual. 

R.  L.  163,  §  141.  5  Cush.  613.  5  Gray,  574. 


Proof  of  part- 
nership debts 
assumed  by  one 
or  more  part- 
ners, etc. 
1865,  113, 
§§  1,2. 
P.  S.  157. 
§1  125,  120. 
R.  L.  163, 
I  142. 

13  Gray,  114. 

14  Grav,  534. 
3  Allen,  579. 
97  Mass.  256. 
101  Mass.  482. 
156  Mass.  375. 
181  Mass.  492. 


Section  142.  If  upon  dissolution  of  a  partnership,  one  or  more  of 
the  partners  or  a  new  partnership  formed  by  the  addition  of  new  mem- 
bers has  agreed  to  pay  any  outstanding  debts  of  such  partnership,  or  if 
a  person  or  firm,  in  consideration  of  the  receipt  or  transfer  of  property, 
has  agreed  to  pay  any  outstanding  debts  of  the  person  from  whom  such 
property  was  received  or  transferred,  and  the  person  agreeing  to  pay  has 
become  insolvent,  such  debts  may,  if  the  creditors  so  elect,  be  proved 
against  the  estate  of  such  insolvent  debtor  or  debtors,  and  the  proof  and 
allowance  thereof  shall  discharge  the  person  originally  liable  therefor. 
If  the  original  debtor,  in  either  of  such  cases  has  been  compelled  to 
pay  the  debt  so  agreed  to  be  paid,  he  may  prove  the  amount  so  paid  11 
as  the  original  creditor  might  have  done.  12 


1 
2 
3 
4 
5 
6 
7 
8 
9 
10 


Ca.vp.  216.]  COURTS  of  insolvency.  2325 


CORPORATIONS. 

1  Section  143.     A  domestic  corporation  or  a  foreign  corporation  men-  Petition  by 

2  tioned  in  section  three  of  chapter  one  hundred  and  eighty-one,  except  issl??!?""^' 

3  raih-oad   and  banking  corporations  and  foreign  insurance  companies,  ^^  g  \\f^- 

4  may  file  a  petition  signed  by  an  officer  duly  authorized  by  a  vote  of  a  P  J'i57^*- 

5  majority  of  the  corporators  present  and  voting  at  a  legal  meeting  called  §§  i2~.  lijs. 

6  therefor,  in  the  court  for  the  county  wliere  the  corporation  has  its  prin-  R.  h.  les, 

7  cipal  place  of  business,  stating  its  inability  to  pay  its  debts  and  its  will-  13'Anen,  los. 

8  ingness  to  assign  its  property  for  the  benefit  of  its  creditors,  and  praying  205  Mass!  261. 

9  that  such  proceedings  may  be  had  as  are  hereinafter  provided.     The 

10  judge  shall  forthwith  issue  a  warrant,  as  upon  a  petition  by  a  debtor 

11  under  section  twenty,  requiring  that  the  notice  gi\-en  by  the  messenger 

12  shall  state  further  that  the  making  of  any  contract  by  the  corporation  is 

13  forbidden  by  law.    The  proceedings  thereon,  except  as  hereinafter  pro- 

14  vided,  shall  be  the  same  as  upon  the  petition  of  a  natural  person,  and  in 

15  the  case  of  foreign  corporations  shall  apply  only  to  property  of  the  cor- 

16  poration  within  the  commonwealth  and  the  oath  provided  for  in  section 

17  one  hundred  and  forty-five  shall  be  modified  in  accordance  herewith. 

1  Section  144.     Claims  on  account  of  bills  of  exchange,  endorsements,  claims  prov- 

2  money  due  on  bottomry  or  respondentia  bonds  or  paid  upon  endorse-  dwfd^nd"^"  '*^' 

3  ments  or  as  surety  may  be  pro\ed  against  an  insolvent  corporation  be-  g \1' ff|' ^ ^" 

4  fore  the  making  of  the  last  dividend,  in  like  manner  as  against  the  estate  |,  ^^jgy  .  jgg 

5  of  an  insolvent  debtor  before  the  making  of  the  first  dividend.  isso.  321,  §  1. 

R.  L.  163,  §  144.  152  Mass.  596. 

1  Section  145.    The  schedules  to  be  furnished  shall  be  prepared  and  fj^^fig^lt-^ 

2  furnished  by  the  treasurer  or  other  financial  officer  of  the  corporation,  ?J,?poi'^7' 

3  with  such  assistance  from  the  other  officers  as  he  may  require;  and  the  §§  7.'8. 

4  provisions  of  this  chapter  which  apply  to  the  debtor  or  set  forth  his  §  ne.    ' 

5  duties  relative  to  executing  papers,  submitting  to  examinations,  dis-  rsoo.Wi'.Vi^-"' 

6  closing,   making  over,   secreting,   concealing,   conveying,    assigning   or  f  145.^'''*' 

7  paying  away  his  money  or  property,  shall  apply  to  each  officer  of  the  ws  Mass.  82. 

8  corporation  relative  to  the  same  matters  concerning  the  corporation 

9  and  the  money  and  property  thereof.    Said  officers  shall  at  the  second 
10  meeting  severally  make  and  subscribe  an  oath  in  substance  as  follows: 

I,  ,  (president,  etc.,  or  treasurer,  etc.,)  do  swear  that  I  verily  Oath. 

believe  the  account  of  the  creditors  of  the  corporation,  contained  in  the  schedule 
signed  by  A.  B.,  and  now  on  file  in  court,  is  in  all  respects  just  and  true;  that  I 
do  verily  believe  that  all  the  property  and  estate  of  said  corporation,  and  all  its 
books  of  account  and  papers,  have  been  deUvered  to  the  messenger  or  the  as- 
signee; and  that  if  any  goods  or  estate  not  so  delivered  hereafter  come  to  my 
knowledge,  I  will  faitlifully  and  diligently  apprise  the  assignee  thereof.  And  I  do 
further  swear  that,  to  the  best  and  utmost  of  my  knowledge,  information  and 
behef,  there  is  no  part  of  the  estate  or  effects  of  said  corporation  made  over  or 
disposed  of  in  any  manner  in  fraud  of  the  laws  relative  to  insolvency  or  of  the 
creditors  of  said  corporation. 

1  Section  146.     An  assignee  of  a  foreign  corporation  shall  have  like  Powers  and 

2  rights  and  duties  as  an  assignee  of  a  domestic  corporation  relative  to  tssiKnee. 

3  property  within  the  commonwealth  or  which  may  be  put  into  his  posses-  J^"";  1^3;  ^  ^" 

4  sion  by  said  corporation.     He  shall  as  far  as  practicable  so  distribute  ^  ^■"'• 

5  the  assets  that  all  the  creditors  within  or  without  the  commonwealth 
G  shall  receive  proportionate  dividends  from  the  assets  whether  in  the 


2326 


COURTS  OF  ES'SOLVENCT. 


[Chap.  216. 


control  of  the  assignee  or  not.     The  claims  entitled  to  priority  under  7 

this  chapter  shall  have  like  priority  in  the  case  of  such  corporations.  8 

pre/erred"^*^       SECTION  147.     Claims  against  a  corporation  authorized  to  take  land  1 

185™  327,  §  19.  or  materials  for  damages  for  such  taking  shall  be  preferred  claims,  next  2 

^119  "*'         ^^^^^  debts  due  to  the  United  States  and  to  the  commonwealth.  3 

p.  S.  157,  §  133.  R.  L.  163,  §  147. 


Void  pref- 
erences. 
1S51,  327,  §  9. 
G.  S.  118, 
§§  120.  121. 
P.  S.  157. 
§§  134,  135. 


Section  148.     Sections  one  hundred  and  ten  and  one  hundred  and  1 

eleven  shall  apply  to  corporations  subject  to  this  chapter,  and  an  allow-  2 

ance  or  discharge  shall  not  be  granted  to  a  corporation,  nor  to  a  person  3 

as  officer  or  member  thereof.  4 

R.  L.  163,  §  148.  10  Gray,  243.  121  Mass.  399. 


Petition  by 
creditors. 
1851,327.  §  17. 
1856,  284,  §  25. 
G.  S.  118, 
§  122. 

P.  S.  157,  I  136. 
1890,321,  §  1. 
1897,  124. 
R.  L.  163, 
§  149. 
1919,  350, 
§§  52.  53. 
163  Mass.  171, 
252. 


Section  149.  If  a  corporation  described  in  section  one  hundred  and  1 
forty-three  whose  property  has  been  attached  on  mesne  process  in  a  civil  2 
action  founded  on  a  contract  for  the  amount  of  one  hundred  dollars  or  3 
more,  provable  under  this  chapter,  has  not  within  fourteen  days  from  4 
the  return  day  of  the  writ,  dissolved  the  attachment  as  provided  by  law,  5 
or  if  such  corporation  has  removed  any  part  of  its  property  from  the  6 
commonwealth,  with  intent  to  defraud  its  creditors,  or  conceals  any  part  7 
of  its  property  to  prevent  its  being  attached  or  taken  on  legal  process,  8 
or  has  procured  its  property  to  be  attached  or  taken  on  legal  process,  or  9 
has  made  a  fraudulent  payment,  conveyance  or  transfer  of  its  property  10 
or  any  part  thereof,  or  has  stopped  or  suspended  and  has  not  resumed  11 
payment  of  its  commercial  paper  within  fourteen  days,  any  of  its  creditors  12 
whose  claims  provable  against  its  estate  amount  to  one  hundred  dollars  13 
may,  wdthin  ninety  days  thereafter,  file  a  petition  on  oath  in  the  court  for  14 
the  county  where  the  corporation  has  its  principal  place  of  business,  15 
stating  the  facts  and  the  nature  of  their  claims,  and  praying  that  its  16 
property  or,  if  a  foreign  corporation,  its  property  in  the  commonwealth,  17 
may  be  seized  and  distributed  according  to  this  chapter;  and  thereupon,  IS 
if  after  notice  to  a  domestic  corporation  by  serving  on  its  president,  19 
treasurer  or  clerk,  or  to  a  foreign  corporation  by  serving  upon  the  com-  20 
missioner  of  corporations  and  taxation,  thirty  days  at  least  before  the  21 
return  day  of  the  notice  a  copy  of  the  petition,  and  a  hearing  or  upon  22 
default  of  the  corporation  to  appear  at  the  time  and  place  appointed  in  23 
the  notice,  the  court  finds  the  facts  stated  in  the  petition  to  be  true,  the  24 
judge  shall  forthwith  issue  a  warrant  to  take  possession  of  the  property  25 
of  the  corporation  or,  if  a  foreign  corporation,  of  its  property  in  the  com-  26 
monwealth;  and  thereupon  like  proceedings  shall  be  had  as  upon  a  war-  27 
rant  issued  upon  the  petition  of  a  corporation.  28 


Composition. 
1884,  236,  §  1. 
1897,  247,  §  1. 
R.  L.  163, 
§  150. 


COMPOSITION. 


Section  150.     Instead  of  proceeding  as  required  by  the  laws  relative  1 

to  insolvency,  an  insolvent  debtor  or  an  insolvent  domestic  corporation  2 

having  capital  stock  may  obtain  a  discharge  from  his  or  its  debts  as  3 

hereinafter  provided.  4 


Mmp'Stira.  Section  151.     At  any  time  after  the  filing  of  the  petition  by  or  against  1 

R  *l'  1631  ^  ^'    t^^  debtor  and  the  schedules  required  by  law,  he  may  file  a  written  pro-  2 

I  ioi.     '         posal  for  composition  with  his  creditors,  stating  the  amount  of  the  pro-  3 

posed  dividend,  which  shall  be  payable  only  in  money,  the  date  when  4 


Ch.'VP.   216.]  COURTS   OF  INSOLVENCY.  2327 

5  payable  and  the  security  to  be  given  for  such  payments  so  far  as  deferred. 

6  Such  proposal  shall  not  be  considered  unless  it  conforms  to  such  recjuire- 

7  ments,  nor  unless  it  provides  for  pajonent  in  full  of  all  debts  and  charges 

8  entitled  to  priority. 


1  Section  152.     If  the  allegations  of  the  petition  appear  to  be  true  or  stayofpro- 

2  if  a  warrant  has  been  issued,  the  court,  upon  the  filing  of  the  proposal  court?etc?^ 

3  for  composition,  may  stay  or  suspend  any  process  or  proceeding  which  HH]  HI]  1 1_ 

4  would  otherwise  be  required  by  law  and  may  make  appropriate  orders  1^**^'  les'  ^  ^' 

5  relative  thereto  or  to  the  custody  of  the  estate.    It  shall  order  a  hearing  ll^h    ' .-. 

6  on  such  proposal  or  a  modification  thereof  under  section  one  hundred  i«5  Mass!  317! 

7  and  fifty-six,  of  which  the  register  shall  send  notice  by  mail  postpaid  to  103. 

8  all  known  creditors  not  less  than  seven  days  before  the  day  appointed 

9  therefor,  stating  the  substance  of  the  proposal  or  modification  thereof. 

1  Section  153.     Books  of  account  and  papers  of  the  debtor  relative  to  Accounts  and 

2  his  estate  shall  until  the  final  hearing  on  confirmation  of  the  composition  exrm'inaSon.*" 

3  be  open  at  all  reasonable  times  to  examination  by  any  creditor  or  his  r.^l;?!!;^*' 

4  agent,  and  the  court  may  enforce  production  thereof;   and  during  such  ^  i53. 

5  period  the  debtor  or  any  other  person  may  be  examined  by  the  court  or 
G  by  a  creditor  as  provided  by  section  eighty-two. 

1  Section  154.     The    provisions  of    sections  thirty-one,   thirty-three,  Provisions 

2  thirty-four,  thirty-six,  thirty-nine,  forty,  forty-one  and  forty-three  to  issl'^lso!'!  5. 

3  forty-eight,  inclusive,  relative  to  debts  and  proof  of  claims,  shall  apply  ^^l]  \ll]  ^  ^• 

4  to  composition  proceedings  so  far  as  applicable  thereto;  but  the  proceed-  fgy^M^gg  175 

5  ings  shall  not  be  stayed  or  suspended  on  account  of  an  appeal  from  the  ]^3  Mass.  26 

_       ,i  ,         .  '  p  I    .  loo  J\lass.  5S2. 

6  allowance  or  rejection  01  a  claim. 

1  Section  155.     In  composition  proceedings  where  no  warrant  has  been  Effect  of  notice 

2  issued  the  date  of  the  notice  by  the  register  to  the  creditors  of  the  debtor's  iss4,°23ir§  5. 

3  proposal  of  composition  shall  have  the  same  effect  relative  to  the  proof  rI^l!  lua!  ^  ^" 

4  of  claims  and  the  debtor's  discharge  as  the  date  of  the  first  publication  of  ^  ^^''■ 

5  the  issuing  of  the  warrant  in  voluntary  proceedings  in  insolvency. 

1  Section  156.     The  debtor  shall  be  present  at  the  hearing  and  may  Hearing  and 

2  then  be  examined  by  the  court  or  by  a  creditor  relative  to  his  estate,  and  creditors, 

3  other  evidence  may  be  offered.    At  any  time  before  the  hearing  is  closed  §§^6-1^''' 

4  the  debtor  may  file  any  modification  of  his  proposal  which  shall  there-  §§*!.' 1.''^' 

5  after  be  considered  the  proposal.     The  hearing  shall  then  be  adjourned  ]^^^'  *^-  ^  ^■ 

6  not  less  than  seven  davs,  and  if  at  or  before  the  day  to  which  such  or  anv  f  i^J-, 

*  *'     161  nl3,ss  551 

7  subsequent  adjournment  is  made  the  debtor  files  in  court  the  written 

8  assent  to  the  proposal  of  a  majority  in  number  and  value  of  his  creditors 

9  who  have  proved  their  claims  if  the  same  be  for  the  payment  of  not  less 

10  than  fifty  per  cent  to  the  general  creditors,  or  if  less  than  fifty  per  cent, 

1 1  of  three  fourths  in  number  and  value  of  such  creditors,  the  court  shall  at 

12  the  hearing,  or  at  a  further  adjournment  thereof  determine  M'hether  the 

13  composition  shall  be  confirmed,  and  any  creditor  may  be  heard  thereon. 

14  Any  matters  which  would  prevent  or  avoid  a  discharge  in  insolvency  may 

15  be  considered  in  ascertaining  the  expediency  of  confirming  the  same, 

16  but  not  as  an  absolute  bar  thereto.    If  the  only  objection  thereto  relates 

17  to  the  security  for  deferred  pajTiients,  other  security  may  then  be  offered. 

18  No  claim  entitled  to  priority  shall  be  counted  nor  shall  a  creditor  whose 

19  claim  is  less  than  fifty  dollars  be  counted  in  the  number  of  creditors. 


2328 


COURTS   OF   INSOLVENCY. 


[Chap.  216. 


Confirmation  of 
composition- 
Effect. 

18S4.  236.  §  9. 
1890,  387. 
R.  L.  163, 
§  157. 

147  Mass.  192. 
150  Mass.  353. 
155  Mass.  389- 
IfiS  Mass.  100. 
171  Mass.  111. 


Section  1.57.  If  the  court  finds  that  the  composition  has  been  duly  1 
assented  to  and  is  consistent  with  justice  and  for  the  interests  of  the  2 
creditors,  it  shall  order  the  same  to  be  confirmed;  and  bj^  the  same  order  3 
shall  limit  the  time  within  which  money  for  cash  payments  and  vouchers  4 
and  securities  for  deferred  payments  shall  be  deposited  in  court;  and  5 
upon  such  deposit  within  the  time  so  limited  therefor,  the  judge  shall  6 
grant  to  the  debtor  a  certificate  of  discharge  from  his  debts,  which  shall  7 
be  substantially  in  the  form  and  have  the  same  eflPect  as  though  obtained  8 
by  the  other  proceedings  in  insolvency.  It  shall  not  be  annulled  for  a  9 
cause  which  was  brought  to  the  notice  of  the  court  on  the  hearing  for  10 
confirmation,  or  which  was  then  known  to  the  creditor  petitioning  to  11 
have  the  same  annulled;  nor  shall  it  bar  the  debt  of  a  cre<litor  whose  12 
name  was  fraudulently  and  wilfully  omitted  from  the  debtor's  schedule  1.3 
of  creditors.  But  the  debt  of  a  creditor  omitted  therefrom  by  mistake  14 
only  or  want  of  knowledge,  shall  be  barred  and  he  shall  be  entitled  to  15 
and  may  recover  against  the  debtor  the  amount  of  the  dividend  to  which  16 
he  would  have  been  entitled  in  the  composition  proceetlings.  17 


Unproved 

claims. 

1390,  387. 

R.  L.  163, 

§  158. 

157  Mass.  252. 

170  Mass.  460. 


Section  158.     If  there  are  unsecured  claims  included  in  the  debtor's  1 

schedule  of  creditors  not  proved  at  the  time  of  the  deposit,  the  deposit  2 

shall  include  a  dividend  at  the  rate  proposed  on  all  such  claims  computed  3 

on  the  amount  set  forth  in  the  schedule;  and  after  the  expiration  of  five  4 

months  and  within  six  months  from  the  time  of  the  first  hearing  on  the  5 

debtor's  proposal  for  composition,  the  court  shall  order  a  hearing  for  the  6 

proof  of  such  unproved  claims,  of  which  notice  shall  be  given  in  like  7 

manner  as  of  the  pre\iou3  hearings;    and  upon  proof  and  allowance  8 

thereof  at  such  hearing,  the  court  shall  order  dividends  paid  on  all  9 

debts  so  proved  at  the  rate  allowed  on  debts  formerly  proved,  and  the  10 

money  deposited  on  claims  then  remaining  unproved  shall  then  be  re-  11 

funded  to  the  depositor.  12 


Disposition  of 
property  upon 
discharge. 
1884,  236,  §  10. 
R.  L.  163, 
§  159. 

159  Mass.  190. 
170  Mass.  9. 
204  Mass.  432. 


Section  159.     Upon    the    granting    of    the   discharge,    the    money,  1 

vouchers  and  securities  deposited  in  court  shall  be  paid  and  delivered  2 

by  the  register  upon  demand  to  the  persons  entitled  thereto,  and  all  3 

other  property  of  the  debtor  shall  revert  to  and  revest  in  him;  and  the  4 

court  may  order  any  necessary  or  proper  release  or  reconveyance  thereof  5 

by  an  assignee  or  trustee  to  whom  the  same  may  have  been  assigned  or  6 

conveved.  7 


Return  of 
deposits. 
1885,  353,  5  5. 
R.  L.  163, 
§  160. 


Section  IGO.  After  the  expiration  of  one  year  from  the  deposit  in 
court  of  the  money,  vouchers  and  securities,  as  provided  in  section  one 
hundred  and  fifty-se\'en,  the  court  may,  after  notice  by  mail  postpaid,  to 
creditors  who  have  not  taken  up  their  dividends,  order  all  such  money, 
vouchers  and  securities  then  remaining  on  deposit  in  said  court,  to  be 
paid  and  transferred  to  the  depositor.  ' 


Effect  of 
failure  of 
composition. 
1884,236,  §  11. 
R.  L.  163, 
§  161. 


Section  161.  If  the  money  for  the  cash  payments  and  the  vouchers 
and  securities  for  deferred  payments  are  not  deposited  in  court  within 
the  time  limited  by  the  order  of  confirmation,  the  case  shall  proceed  in 
insohency,  and  the  register  shall  tleliver  to  the  assignee  all  money  and 
securities  which  are  the  property  of  the  debtor  which  shall  ha\-e  been 
deposited  in  court;  and  all  other  securities  and  vouchers  which  shall 
have  been  so  deposited  shall  be  returned  by  the  register  to  the  persons 


Chap.  216.]  courts  of  insolvency.  2329 

8  ■uho  fiirnishe<i  or  deposited  the  same  or  be  othen\'ise  disposed  of  as  the 

9  judge  may  order.    In  such  case  the  stay  or  suspension  of  other  proceed- 

10  ings  by  reason  of  the  attempted  composition  shall  not  affect  any  rights, 

11  and  the  period  of  suspension  shall  be  excluded  in  computing  other  periods 

12  of  time  provided  by  the  laws  relative  to  insolvency. 

1  Section  162.    This  chapter  shall  not  release  an  officer  or  stockholder  stockholder's 

2  of  a  corporation  from  any  liability  under  sections  thirty-five  to  thirty-  atTected.""' 

3  seven,  inclusive,  of  chapter  one  hundred  and  fifty-six,  but  if  such  cor-  J^^l!  losi  ^  ^' 

4  poration  applies  for  a  discharge  as  hereinbefore  provided  any  creditor  ^  i**^- 

5  may,  at  any  time  after  the  filing  of  the  offer  in  composition,  file  a  bill  in 

6  equity  in  behalf  of  himself  and  other  creditors  of  the  corporation,  against 

7  it  and  all  stockholders  thereof  at  the  time  of  the  filing  of  the  petition  in 

8  insolvency  by  or  against  the  corporation,  or  against  all  the  officers  liable 

9  for  its  debts  and  contracts,  for  the  recovery  of  the  amounts  due  from  the 

10  corporation  to  himself  and  the  other  creditors  for  which  the  stockholders 

11  or  officers  may  be  personally  liable  by  reason  of  any  act  or  omission  on 

12  its  part  or  on  that  of  its  officers,  stating  the  nature  of  his  claim  and  the 

13  grounds  upon  which  it  is  expected  to  charge  the  stockholders  or  officers 

14  personally.    It  shall  be  unnecessary  to  allege  or  prove  a  judgment  against 

15  the  corporation  or  the  return  of  an  execution  unsatisfied.    If  the  ground 

16  upon  which  it  is  expected  to  charge  the  officers  of  the  corporation  is  an 

17  excess  of  debts  above  the  capital  stock,  the  extent  of  such  excess  shall 
IS  be  taken  to  be  that  existing  at  the  time  of  the  filing  of  the  petition  in 
19  insolvency  by  or  against  said  corporation. 

1  Section  163.     If,  at  the  time  of  the  filing  of  the  offer  in  composition  Effect  ot  com- 

2  by  a  corporation,  an  action  is  pending  against  it  on  behalf  of  a  creditor  who  pending  "ctton. 

3  would  be  entitletl  to  enforce  a  liability  against  its  officers  or  stockholders  Jf^^'  1^3'  ^  ^• 

4  under  chapter  one  hundred  and  fifty-six,  the  plaintiff  may  change  his  5 163. 

5  action  into  a  suit  in  equity,  making  parties  thereto  the  stockliolders  and 

6  officers  who  were  such  at  the  time  of  the  filing  of  the  petition  in  insol- 

7  vency  by  or  against  the  corporation,  and  may  proceed  thereafter  in  like 

8  manner  as  provided  in  the  preceding  section.    If  the  ground  upon  which 

9  it  is  expected  to  charge  the  officers  of  the  corporation  is  an  excess  of 

10  debts  above  the  capital  stock,  the  extent  of  such  excess  shall  be  taken 

11  to  be  that  existing  at  the  time  of  the  beginning  of  said  action. 

1  Section  164.     A  suit  in  equity  under  the  two  preceding  sections  shall  flgy'^ljg'f^ls 

2  be  subject  to  sections  fifty  to  fifty-three,  inclusive,  of  chapter  one  hun-  k  l^  lus! 

3  dred  and  fifty-eight. 

1  Section  165.     A  corporation  making  an  offer  of  composition  shall  oJg'';.^j''r"'g°J 

2  file,  at  the  time  of  filing  the  schedules  of  assets  and  liabilities,  a  schedule  isa^.i^B?,  §  4. 

3  of  all  its  officers  and  stockholders  who  were  such  at  the  time  of  the  filing  §  iei 

4  of  the  petition  in  insolvency  by  or  against  it,  with  the  holdings  of  stock 

5  at  such  time. 

1  Section  166.     A  discharge  imder  section  one  hundred  and  fifty-seven  Effect  ot  dis- 

2  shall  dissolve  any  attachment  on  mesne  process  made  not  more  than  four  auadm'ient". 

3  months  prior  to  the  time  of  giving  the  notice  to  the  creditors  of  the  h.^l.  ills',  ^  ^' 

4  debtor's  proposal  of  composition.  170  Mass.  179.  5  loc- 


2330 


COURTS  OF  ESrSOLVENCT. 


[Chap.  216. 


Amendments 
and  orders. 
1884,  236,  §  12. 
R.  L.  163, 
§  167. 

190  Mass.  507. 
216  Mass.  459. 


Section  167.    The  court,  except  as  otherwise  p^o^•ided  in  this  chap-  1 

ter,  may  allow  amendments  and  make  appropriate  orders,  in  the  course  2 

of  the  proceedings  or  thereafter,  necessary  to  carry  the  same  into  full  3 

effect.  4 


Penalty  for 
placing  ficti- 
tious debt 
upon  schedule. 
1SS4,  236,  §  13. 
R.L.  163. 
§  168. 


Section  168.     An  insolvent  debtor  who  knowingly  places  upon  his  1 

schedule  of  creditors  a  false  or  fictitious  debt  with  intent  to  deceive  or  2 

defraud  his  creditors,  or  who  having  notice  or  knowledge  that  a  person  3 

has  proved  or  attempted  to  prove  a  false  or  fictitious  debt  against  his  4 

estate,  fails  to  disclose  the  same  forthwith  to  the  court  or  who  makes  a  5 

pajanent  or  gives  or  promises  an  advantage  to  a  creditor  with  intent  6 

thereby  to  procure  his  assent  to  a  composition,  shall  be  punished  by  7 

imprisonment  in  the  state  prison  for  not  more  than  five  years  or  in  jail  8 

for  not  more  than  two  years.  9 


Penalty  for 
proving  ficti- 
tious debt. 
1SS4.  236,  §  14. 
R.  L.  163, 
§  169. 


Section  169.     A  creditor  of  an  insolvent  debtor  who  knowingly  proves  1 

a  false  or  fictitious  debt  against  the  estate,  or  recei\'es  or  procures  or  2 

attempts  to  procure  a  pa^Tnent  or  advantage  in  consideration  of  his  assent  3 

to  a  composition,  shall  be  punished  by  imprisonment  for  not  more  than  4 

two  years  or  by  a  fine  of  not  more  than  one  thousand  dollars.  5 


Fee  for 
receiving 
petition,  etc. 
1S3S,  163,  §  16. 
1856,  284,  §  24. 
G.S.  lis.  §  125. 
P.  S.  157,  §  137. 
1895,  394, 
§§  1.2. 
R.  L.  163, 
§  170. 
150  Mass.  ISO. 


FEES   .AJrt)    COSTS. 

Section  170.     A  debtor's  petition  for  the  institution  of  ■s'oluntary  in-  1 

solvency  proceedings  shall  be  received  and  entered  by  the  register  only  2 

upon  payment  to  him  of  twenty-five  dollars.    A  creditor's  petition  for  3 

the  institution  of  proceedings  against  a  debtor  shall  be  recei^•ed  and  4 

entered  by  the  register  only  upon  payment  to  him  of  the  amount  neces-  5 

sary  to  defray  the  expense  of  publishing  the  notice  of  the  filing  of  such  6 

petition,  but  the  warrant  shall  not  issue  until  twenty-five  dollars  is  paid  7 

to  the  register.    A  proposal  by  a  debtor  for  composition  with  his  cred-  8 

itors  shall  not  be  recei\'ed  or  entered  by  the  register  after  the  filing  of  a  9 

creditor's  petition  for  involuntary  proceedmgs,  and  before  the  issuing  of  10 

a  warrant  thereon,  until  twenty-fi^'e  dollars  has  been  paid  to  the  register.  11 


Accounts  of 

register. 

1856.  284.  §  24. 

G.S.  lis,  §126. 

1862,  137. 

P.  S.  157,  §  138. 

1895,  394,  §  3. 


Section  171.     The  register  shall,  annually  on  the  first  days  of  Janu-  1 

ary,  April,  July  and  October,  render  an  account  on  oath  of  all  fees  so  2 

received  by  him  during  the  three  months  last  preceding,  and  on  or  before  3 

the  tenth  day  of  said  months  pay  over  the  same  to  the  commonwealth.  4 

R.  L.  163,  §  171. 


TOn/^osition           Section  172.     In  composition  cases  no  fees  or  compensation  shall  be  1 

5^1'i''','^^''?-.      payable  to  the  register  for  giving  notices  to  creditors  pr  for  the  custody  2 

1S95;  394!  §  i.     of  money,  vouchers  or  securities,  or  for  the  pajTnent  of  dividends.  3 

R.  L.  163,  §  172. 


Messenger's          Section  173.     In  all  cascs  in  a  court  of  insolvency  the  messenger  1 

issi' 284' I  24'  ^^^^^  ^^  entitled  to  the  following  fees:  for  service  of  tlie  warrant,  two  2 

G.s.'ii8,'|i25!  dollars;   for  necessary  travel,  at  the  rate  of  four  cents  a  mile;   for  each  3 

1895, 394,  §  5^  '  Written  notice  to  creditors  named  in  the  schedule,  ten  cents;    for  the  4 

'^  '  ■  custody  of  property,  publication  of  notices  and  other  services,  the  amounts  5 

actually  incurre<i  and  paid  and  returned  by  him  in  an  itemized  account  on  6 

oath  and  appro\etl  by  the  court.    For  cause  and  upon  a  hearing  the  court  7 

may  make  a  further  allowance.  8 


CH-VP.    217.]      JIT)GES  AXD  REGISTERS   OF  PROBATE  AND  INSOLVENCY. 


2331 


1  Section  174.     If  an  attachment  on  mesne  process  has  not  been  dis- 

2  solved  before  commencement  of  proceedings  in  insolvency,  or  if  such 

3  attachment  has  been  dissolved  by  bond  and  the  claim  upon  which  the 

4  action  was  commenced  is  proved  against  the  estate  of  the  debtor,  the 

5  plaintiff  may  also  prove  the  legal  fees,  costs  and  expenses  of  the  action 

6  and  of  the  custody  of  the  property  to  the  date  of  the  first  meeting,  and 

7  the  amount  thereof  shall  be  a  privileged  debt. 


Costs  if  attach- 
rnent  dissolved. 
1S41,  124,  §  6. 
G.S.  118,  §  127. 
1S62,  179,  §  5. 
P.  S.  157,  §  139. 
1892,  359. 
R.  L.  163,  §174. 
1:^5  Mass.  .'•S8. 
147  Mass.  192. 
152  Mass.  596. 


1  Section  17.5.     In  matters  of  insolvency  which  are  contested  in  a  Costs,  how 

2  court  of  insohency,  the  superior  court  or  the  supreme  judicial  court,  said  i'|56; 284, 

3  courts  may  award  costs  to  either  party  to  be  paid  by  the  other,  or  to  q^  l^iig. 

4  either  or  both  parties  to  be  paid  out  of  the  estate.    If  costs  are  awarded  p  l^%\^^- 

5  to  be  paid  by  one  party  to  the  other,  said  courts,  respectively,  may  issue  |^^  }^°,vlH"i7:; 

6.  ,  „  *  ix.  L.  163,  8  175. 

execution  tnereior. 

vacating  proceedings. 

1  Section  176.     Upon  petition  by  a  creditor  who  has  proved  his  claim  Vacating 

2  the  court  may  order  the  proceedings  to  be  staved  and,  after  notice  and  a  is4s,  soi,  §  is. 

3  hearing,  if  no  objection  is  made  by  the  debtor  or  any  such  creditor,  enter  p.s.'  157,'  1 142'. 

4  an  order  vacating  all  proceedings  therein. 

R.  L.  163, 1 176.  3  Gray,  531.  6  Gray.  243.  129  Mass.  129. 


returns. 

1  Section  177.     Each  register  shall  on  or  before  the  tenth  day  of  each  Returns  by 

2  month  make  a  return  to  the  state  secretary  of  the  name,  residence  and  i846,  les,  5  3. 

3  occupation  of  each  person  by  or  against  whom,  as  an  insolvent  debtor,  g.s.'h's.'usi'. 

4  and  of  the  name  of  each  corporation,  the  kind  of  business  for  which  it  ig97,'s9.'  ^  ^*'^' 

5  was  organized,  the  place  or  places  where  its  business  was  principally  done,  ^•I'-iss,  §  177. 

6  by  or  against  which,  as  an  insolvent  corporation,  a  petition  has  been 

7  filed  in  his  court  during  the  month  last  preceding,  with  the  dates  of 

8  such  petitions.     The  secretary  shall  enter  such  returns,  conveniently  for 

9  reference,  in  a  book  open  to  public  inspection. 


CHAPTER    217. 

JUDGES  AND   REGISTERS   OF   PROBATE   AND   INSOLVENCY. 


Sect. 

1.  Judges. 

2.  Two  judges  in  certain  counties. 

3.  Special  judges,  appointment  of  and  pro- 

visions for  holding  court. 

4.  Registers  of  probate  and  insolvency. 

5.  Oaths  of  judge  and  register. 

6.  Judge,  register,  etc.,  to  be  disinterested. 

7.  Judge   or   register  may   be   appointed 

guardian  of  his  minor  child. 

8.  Assistance  of  other  judges. 

9.  Decree  out  of  county. 

10.  Bonds  to  acting  judge. 

11.  Inspection  of  records,  etc.,   by  judges 

and  liability  on   bonds   of   registers 
and  assistant  registers. 

12.  Bond  of  register. 


Sect. 

13.  Temporary  register. 

14.  Registers  shall   certify  amount   of  as- 

sistance. 

15.  Duties  of  register.    Custody  of  records. 

16.  Register  to  send  notices,  copies  of  in- 

ventories, etc.,  to  commissioner  of  cor- 
porations and  taxation,  except,  etc. 

17.  Register  to  report  vacancy  in  office  of 

assistant,  and  appointment  thereto. 
IS.  Register  to  furnish  copies. 

19.  Register  to  send  notice  of  charitable, 

etc.,  trusts  to  public  welfare  depart- 
ment. 

20.  Register  to  account. 

21.  Register    may    receive    petitions    and 

issue  citations. 


2332 


JUDGES  AND  REGISTERS  OF  PROBATE  -AND  INSOLVENCY.       [ChAP.    217, 


Sect. 

22.  Register  may  issue   attachments,   ap- 

point appraisers,  etc. 

23.  Assistant  registers. 

24.  Second  assistant  registers. 

25.  Tliird  assistant  register  in  Middlesex. 

26.  Official  signature  of  assistant  register. 

27.  Duties  of  assistant  register. 

28.  Clerk  in  Suffolk  county. 

29.  Clerk  in  Middlesex  county. 

30.  Court   officers    for    Middlesex,    Plym- 

outh and  Suffolk  counties. 

31.  Messengers  in  Middlesex  county. 

32.  Messenger  for  Suffolk  county. 

33.  Allowance  to  registers  for  clerical  as- 

sistance. 


Sect. 

34.  Salaries  of  judges. 

35.  Salaries  of  registers  and  assistant  reg- 

isters. 

36.  Adjustments  of  salaries. 

37.  Salaries  of  judges,  etc.,  in  Dukes  and 

Nantucket  counties. 

38.  Salaries    of    judges,    etc.,    in    Suffolk 

county. 

39.  Salaries  of  clerks,  etc. 

40.  Compensation    of    judges    for    certain 

duties. 

41.  Compensation  of  special  judges. 

42.  Traveling  expenses. 

43.  Compensation    of    temporary    register. 

Certain  fees,  etc.,  forbidden. 


Judges. 
1S5S,  93,  §  1. 
G.  S.  119,  §  1. 
P.  S.  158,  §  1. 
R.  L.  164,  §  1. 


Section  1.  In  each  county  except  SufPolk,  Middlesex,  Essex  and  1 
Worcester,  there  shall  be  one  judge  of  probate  and  insolvency,  in  tliis  2 
chapter  called  the  judge  of  probate.  i907, 442,  §  1.  iqos,  541,  §  1.  3 


Two  judges 
in  certain 
counties. 
1859,  110,  §  1. 
G.  S.  119,  §  3. 
P.  S.  158,  I  3. 

1893,  379. 

1894,  527,  §  1. 
R.  L.  164, 
§§2,4. 

1907,  442,  §  2. 

1908,  541,  §  2. 
15  Gray,  459. 


senior    z 


Section  2.  There  shall  be  two  judges  of  probate  in  each  of  the 
counties  of  Suffolk,  Middlesex,  Essex  and  Worcester.  The 
judge  shall  be  the  first  judge  in  each  county,  to  whom,  and  to  his  suc- 
cessors, all  bonds  required  by  law  to  be  given  to  the  judge  of  probate 
for  said  counties  shall  be  made  payable.  The  probate  court  and  the 
court  of  insolvency  for  said  counties  may  be  held  by  one  or  both  of 
the  judges,  and,  wlien  so  held,  shall  have  and  exercise  all  the  powers  and 
jurisdiction  committed  to  the  respective  courts.  The  judges  shall  so  ar- 
range the  performance  of  their  duties  as  to  insure  a  prompt  and  punctual 
discharge  thereof.  The  judges  may  perform  each  other's  duties  when 
necessary  or  convenient.  Simultaneous  sessions  of  the  courts  in  said 
counties  may  be  held  if  public  convenience  recjuires.  Citations,  orders  of 
notice  and  all  other  processes  issued  by  the  register  of  probate  and  in- 
solvency, in  tliis  chapter  called  the  register,  for  any  of  said  counties,  14 
shall  bear  teste  of  the  first  judge  of  said  court.  Deposits  or  investments  15 
made  in  the  name  of  the  judge  of  probate  shall  be  in  the  name  of  the  16 
first  judge  of  the  court,  and.  shall  be  subject  to  the  order  of  the  com-t.         17 


9 
10 
11 
12 
13 


Special  judges, 
appointment 
of  and  pro- 
visions for 
holding  court. 

1908,  110. 

1909,  160. 
1913,  211. 


Section  3.  There  shall  be  a  special  judge  of  probate  and  insolvency  1 
in  each  of  the  counties  of  Berksliire,  Erankhn,  Hampsliire  and  Hampden,  2 
who  may  perform  the  duties  of  the  judge  of  probate  in  the  county  for  3 
which  he  is  appointed,  in  cases  of  vacancy  in  office,  sickness,  disability  4 
on  account  of  interest  of  such  judge,  or  whenever  the  judge  in  a  WTiting  5 
filed  with  the  register  rec|uests  the  special  judge  to  perform  his  duties;  or,  6 
in  case  of  the  absence  of  the  judge  from  the  county,  whenever  the  register,  7 
in  a  WTiting  certifjdng  such  absence,  shall  so  rec^uest.  The  register  shall  S 
certify  upon  the  records  of  the  court  the  number  of  days,  the  dates  upon  9 
wliich,  and  the  occasions  for  which,  the  duties  of  the  judge  are  performed  10 
by  the  special  judge;  and  when  the  occasion  is  that  of  sickness,  absence  11 
from  the  county,  interest  or  other  legal  disciualification,  or  vacancy  in  12 
office,  he  shall  certify  the  same  to  the  state  auditor.  13 


Registers  of 
probate  und 
insoivencv. 
1858,  93,  §  4. 


Section  4.     There  shall  be  in  each  county  a  register  of  probate  and     1 
insolvency,  in  this  chapter  called  the  register,  who  shall  hold  office  for  six     2 


CILA.P.    217.]      JUDGES  AND  REGISTERS  OF  PROBATE  AND  INSOLVENCY.  2333 

3  years  beginning  with  the  first  Wednesday  in  January  in  the  year  sue-  o.  s.  lo,  §  4. 

4  ceeding  his  election,  and  until  his  successor  is  qualified.  '  '  ^° 

1890,  423,  §  191.         R.  L.  11,  §  319.  1917.  255,  §  1. 

1893,  417,  §  252.  1907,  560,  5§  353,  456.  1913.  114,  |  2. 

1898,  548,  §  316.         1913,  835,  §§  391,  503.  1919.  269,  §  26. 

1  Section  5.     Each  judge  of  probate  and  each  register,  before  entering  paths  of 

2  upon  the  performance  of  his  official  duties,  in  addition  to  the  oaths  pre-  in/register. 

3  scribed  by  the  constitution,  shall  take  and  subscribe  an  oath  that  he  ?°6Tarti''i.^' 

4  will  faithfully  discharge  said  duties  and  that  he  will  not  during  his  con-  amend  6. 

5  tinuance  in  office,  directly  or  indirectly,  be  interested  in,  or  benefited  by,  <^°"^'^?''^' 

6  the  tees  or  emoluments  wmch  may  arise  in  any  suit  or  matter  pending  in  isi^,  i9o,  §  2. 

7  either  of  the  courts  of  which  he  is  judge  or  register,  respectiyely.    Such  §§  21, 26. 

8  oath  shall  be  filed  in  the  registrj^  of  probate  of  the  county  for  which  he  §'§  12,  le.' 

9  is  appointed  or  elected. 

1S58,  93,  §§  2,  3,  5.  G.  S.  119,  §§  2,  7.  P.  S.  158,  §§  2,  6.  R.  L.  164,  §§  3,  10. 

1  Section  6.     No  judge  of  probate,  register,  assistant  register  or  person  Judge, 

2  employed  in  any  registry  of  probate  and  insolyency  shall  be  interested  in,  toTe'di's-'"" 

3  or  benefited  by,  the  fees  or  emoluments  wliich  may  arise  in  any  matter  'yiir^f'^'^' 

4  pending  before  the  probate  court  or  court  of  insolyency  of  liis  county;  }8j7'f95  54 

5  nor  shall  he  act  as  counsel  or  attorney,  either  in  or  out  of  court,  in  any  |*i  |^^i 

6  matter  pending  before  said  courts  or  in  an  appeal  therefrom;   nor  shall  i856,'2S4, 

7  he,  except  as  otherwise  p^o^■ided,  be  appointed  executor,  administrator,  1858,93,' 

8  guardian,  conser^•ator,  commissioner,  appraiser  or  assignee  of  or  upon  g  I'.^ii9, 

9  an  estate  witliin  the  jurisdiction  of  his  court;  nor  shall  he  be  interested  is79',292,  §  1. 

10  in  the  fees  or  emoluments  arising  from  any  of  said  trusts;  and  no  judge  ^- 1;  ^ol  §^5 

11  shall  be  retained  or  employed  as  counsel  or  attorney,  either  in  or  out  of  '915,23.' 

,.,  ,  ,  ^ .  .  5  Pick.  483. 

12  court,  in  any  smt  or  matter  which  may  depend  on  or  m  any  way  relate  to  9  Pick.  237. 

13  a  decision,  warrant,  order  or  decree  made  or  passed  by  him;  nor  for  or  22  Pickl507! 

14  against  an  executor,  administrator,  guardian  or  conseryator  appointed  scush.ls^il' 
1.5  witliin  liis  jurisdiction,  in  any  action  or  suit  brought  by  or  against  the  105  m^!;ss^219. 

16  executor,  administrator,  guardian  or  conseryator  as  such;    nor  in  any  noMass.  i89. 

17  action  or  suit  relating  to  the  official  coniluct  of  such  party;   nor  for  or 

18  against  a  creditor,  debtor  or  assignee,  in  a  cause  or  matter  arising  out  of 

19  or  connected  with  any  proceedings  before  him;  nor  in  an  appeal  in  such 

20  cause  or  matter. 

1  Section  7.     If  a  judge  or  register  desires  to  be  appointed  guardian  of  jelfte? ma 

2  his  minor  child,  who  is  an  inhabitant  of  or  resides  in  the  same  county,  be  appointed 

3  such  appointment  may  be  made,  and  all  subsequent  proceedings  in  regard  his  minor 

4  thereto  had,  in  the  probate  court  of  an  adjoining  county. 

1870,  263.  P.  S.  158,  §  22.  R.  L,  164,  §  26. 

1  Section  S.     If  a  judge  of  probate  is  unable  to  perform  his  duties,  or  Assistance  of 

2  any  part  of  them,  from  sickness,  interest  or  other  legal  disqualification,  iisx.m.Ts. 

3  or  if,  in  his  opinion,  the  court  requires  the  assistance  of  another  judge,  or  Isi?]  19b.  §  5. 

4  if  there  is  a  vacancy  in  the  office  of  judge  of  probate,  or  if  the  judge  is  is56',2s'4f§  s. 

5  absent,  his  duties,  or  such  of  them  as  he  may  request,  shall,  if  there  is  no  p|' jsl'l*' 

6  special  judge  of  probate  in  said  county  ready  to  act,  be  performed  in  Jinfp^'t}- 

7  the  same  county  by  the  judge  of  probate  of  any  other  county  who  may  ism]  345!  1 1. 

8  be  designated  by  the  judge,  or,  in  case  of  his  failure  so  to  designate,  who  i904,'40i,'§  1.' 

9  may  be  designated  by  the  register  from  time  to  time  as  may  be  necessary;  lii'-i,  322. 

10  but,  unless  objection  is  made  by  an  interested  party  before  the  decree  is  los^/a'ss.  219. 


2334 


JUDGES  AND  REGISTERS  OF  PROBATE  AND  INSOLVENCY.      [ChAP.   217. 


110  Mass.  1S9. 
1  Op.  A.  G. 
232. 


made,  any  case  may  be  heard  and  determined  out  of  said  county  in  the  11 

performance  of  such  duties  by  such  other  judge,  who  may  send  his  decree  12 

to  the  registry  of  probate  for  the  county  where  the  case  is  pending.  13 

Two  or  more  simultaneous  sessions  of  the  court  may  be  held,  the  fact  14 

being  so  stated  upon  the  record.  15 


Decree  out 
of  countv. 
1S9S,  13i. 
R.  L.  16-1,  §  9. 
15  Gray,  459. 


Section  9.     A  judge  of  probate  may,  in  any  case  in  which  a  decree,  1 

order  or  allowance  can  be  made  without  a  hearing,  and  in  any  case  2 

after  a  hearing,  make  such  decree,  order  or  allowance,  and  approve  3 

bonds,  at  any  place  in  the  commonwealth,  with  the  same  effect  as  if  so  4 

made  and  approved  in  his  county;    and  if  such  judge,  under  the  pre-  5 

ceding  section,  acts  in  a  county  other  than  his  own,  such  decree,  order  6 

or  allowance  may  be  signed,  and  bonds  appro\'ed,  outside  the  county  7 

where  he  may  have  been  designated  to  act.    This  section  shall  not  affect  8 

the  validity  of  any  decree,  order  or  allowance  signed  or  bond  approved  9 

prior  to  INIarch  third;  eighteen  hundred  and  ninety-eight.  10 


Bonds  to 
acting  judge. 
1859,110,  §3. 
G.  S.  119,  5  5. 
P.  S.  158.  §  5. 
R.  L.  164,  §  8. 


Inspection  of 
records,  etc., 
by  judges  and 
liability  on 
bonds  of 
registers  and 
assistant 
registers. 
1861,  95. 
P.  S.  158, 
§§15-17. 
R.  L.  164, 
§§  21-23. 


Section  10.     Bonds  required  to  be  given  to  the  judge  of  probate  1 

shall  be  given,  in  case  of  vacancy  in  the  office  of  judge,  to  the  acting  2 

judge,  and  to  Ms  successors  in  office,  and  all  business  shall  be  done  in  his  3 

name  or  in  the  name  of  the  probate  court  or  the  court  of  insolvency  for  4 

the  county  where  the  case  or  matter  is  pending;    but  bonds  may  be  5 

approved,  and  other  acts  required  to  be  done  or  certified  by  the  judge  6 

may  be  done  or  certified,  by  the  acting  judge.  7 

Section  11.    Judges  of  probate  shall  semi-annually  inspect  the  do-  1 

ings  of  the  registers  of  their  courts,  and  see  that  the  records  and  files  2 

are  made  up  seasonably  and  kept  in  good  order;  and  if  the  records  are  3 

left  incomplete  for  more  than  six  consecutive  months,  such  neglect,  4 

unless  caused  by  illness  or  casualty,  shall  be  adjudged  a  forfeiture  of  5 

the  bond  of  the  register.    In  case  of  any  neglect  causing  a  forfeiture  of  6 

the  bond  of  the  register  or  assistant  register,  the  judge  shall  forthwith  7 

give  MTitten  notice  thereof  to  the  state  treasurer,  who  shall  thereupon  8 

cause  the  bond  to  be  put  in  suit;  and  the  amount  recovered  in  such  suit  9 

shall  be  applied  to  the  exjjense  of  making  up  the  deficient  records  under  10 

the  direction  of  the  court  in  whose  records  the  deficiency  exists,  and  the  11 

surplus,  if  any,  shall  be  carried  into  the  accoiuit  of  such  treasurer.    This  12 

section  shall  not  exempt  registers  or  assistant  registers  from  an  action  for  13 

any  other  breach  of  their  bond,  or  from  other  liability  for  neglect  or  mis-  14 

conduct  in  office.  15 


regi's1e°'               Section  12.     Each  register  shall  give  bond  to  the  state  treasurer  for  1 

178657^5'  •^  "■  ^^^®  faithful  performance  of  his  official  duties,  in  a  sum  not  less  than  one  2 

R-S.'83!'§  2r   thousand  nor  more  than  ten  thousand  dollars,  as  ordered  by  the  judge,  3 

iS57|  15. '     ""  with  one  or  more  sureties  approved  by  him.  4 

1858,  93,  §§  5,  8.  G.  S.  119,  §  8.  P.  S.  158,  §  7.  R.  L.  104,  §  11. 


Temporary 
register. 
1817,  190,  §  2. 
R.  S.  83, 
§§  23-2.5. 
1856,  173,  §  8; 
284,  §§  14,  15. 
1858,  93,  . 
|§  2,  3,  5,  0. 
G.  S.  119, 
II  14,  15. 


Section  13.  Upon  the  death,  resignation,  removal  or  absence  of  the 
register,  if  there  is  no  assistant  register,  or  if  he  also  is  absent,  the  judge 
shall  appoint  a  temporary  register  to  act  until  a  register  is  qualified,  or 
until  the  disability  is  removed.  Such  temporary  register  shall  be  sworn 
before  the  judge,  and  a  certificate  thereof,  with  his  appointment,  shall 
be  recorded  with  the  proceedings  of  each  court  in  which  he  acts. 

p.  S.  158,  §1  19,  20.  R.  L.  164,  §  24. 


Ch.\P.   217.]      JH-DGES  .-USTD  KEGISTEKS  OF  PROBATE  .«vD  INSOLVENCY.  2335 

1  Section  14.    The  register  shall  certify  upon  his  records  and  to  the  Registers  shall 

2  state  auditor  the  number  of  days,  the  dates  upon  wliich,  and  the  occa-  amount  of 

3  sions  for  which,  the  duties  of  the  judge  of  probate  are  performed  by  a  il5'9'*no''§  2 

4  judge  of  another  county  under  section  eight. 

G.  S.  119,  §5.  1892,  337.  §2.  1899,  345,  §  2. 

P.  S.  loS,  §  5.  lS9i,  377,  §  2.  E.  L.  164,  |  6. 

1  Section  15.     The  register  shall  have  the  care  and  custody  of  all  i^utiesof 

2  books,  documents  and  papers  pertaining  to  his  court,  or  deposited  with  Custody  of 

3  the  records  of  insolvency  or  filed  in  the  registry  of  probate,  and  shall  isiT,  Too,  §  2. 

4  carefully  preserve  them  and  deliver  them  to  his  successor.     He  may,  issn.  isi,  §"1^3. 

5  with  tlie  approval  of  the  county  commissioners  and  at  the  expense  of  a^l."  119,^/10 

6  the  county,  cause  copies  of  the  indexes,  or  new  indexes,  to  the  records  \g^  }|g'  ^  '*• 

7  which  are  in  his  custody,  to  be  printed  and  sold  at  a  price  not  less  than  f^^-  ^||'  I  ^^■ 
S  the  cost  of  paper,  printing  and  binding.    He  shall  perform  all  other  duties, 

9  pertaining  to  his  office,  required  by  law  or  prescribed  by  the  judge.     He 

10  may  attest  the  records  by  the  volume,  and  the  attestation  shall  be  suf- 

1 1  ficient  when  the  volume  containing  the  same  bears  the  attest,  with  the 

12  written  signature  of  the  register  or  other  person  lawfully  authorized. 

1  Section  16.     The  register  shall,  except  as  herein  provided,  send  by  Register  to 

2  mail  to  the  commissioner  of  corporations  and  taxation  a  copy  of  every  copies  of 

3  inventory  and  appraisal  filed  in  his  court  by  an  executor,  administrator  e'tc.'i'to' "om- 

4  or  trustee,  within  thirty  days  after  the  filing  of  the  same.    The  register  "^rations 

5  shall  also,  within  the  same  period,  send  by  mail  to  said  commissioner  a  e?£*retc°°' 

6  copy  of  the  will  of  the  decedent,  if  such  has  been  allowed  by  the  probate  J|9i.  425,  §  10. 

7  court.    The  register  shall  also  furnish  such  copies  of  papers  in  his  office  R.  l'  is.  ' 

8  as  the  commissioner  shall  require,  and  shall  furnish  information  as  to  1907,663, 

9  the  records  and  files  in  his  office  in  such  form  as  the  commissioner  may  i908,'268'.~  ' 

10  require.    A  refusal  or  neglect  by  the  register  so  to  send  a  copy  of  such  §§°i3,''u;'  ^^ ' 

11  inventory  and  appraisal  or  to  furnish  such  copies  or  information  shall  be  fnJg^lgo  ''" 

12  a  breach  of  his  official  bond;  but  the  commissioner  may  excuse  him  from  !^(f -'^^q 

13  sending  copies  of  inventories  and  of  wills  of  estates  no  part  of  which,  in  40, 52.  ' 

14  his  judgment,  appears  to  be  subject  to  a  tax  under  chapter  sixty-five. 
1.5  If  an  executor,  administrator  or  trustee  fails  to  file  said  inventory  and 

16  appraisal  within  tliree  months  from  the  date  of  his  appointment,  the 

17  register  shall  ^\■ithin  tliirty  days  after  the  expiration  thereof  notify  the 

18  commissioner  of  such  failure. 

1  Section  17.     The  register  shall  forthwith  report  to  the  state  secretary  Register  to 

2  a  vacancy  in  the  office  of  assistant  register  and  the  name,  residence  and  [n''o°ffice  oT""^ 

3  date  of  appointment  of  the  person  appointed  to  fill  such  vacancy.  appSntmeTt'' 

ISSO,  139,  §  4.  P.  S.  158,  §  13.  R.  L.  164,  §  19.  thereto. 

1  Section  18.     The  register  shall  furnish  copies  of  records  or  other  Register  to 

2  papers  in  his  custody  and  shall  collect  the  legal  fees  therefor.  lagsTieg"*?  2. 

R.  L.  104,  §  15. 

1  Section  19.     Whenever  any  instrument  creating  or  increasing  an  es-  Register  to 

2  tate  or  fund  for  benevolent,  charitable,  humane  or  philanthropic  pur-  chanui'biT  °' 

3  poses  is  filed  for  record  in  a  registry  of  probate,  the  register  shall  forth-  pubiilTeUare 

4  with  send  to  the  department  of  public  welfare  a  statement  setting  forth  fgl^s''!™""'- 

5  the  book  and  page  in  the  registry  where  the  instrument  is  recorded,  i9i9,'3ob,  §S7. 


2336 


JUDGES  AND  REGISTERS  OF  PROBATE  AND  INSOLVENCY.      [ChaP.   217. 


with  the  name,  if  any,  of  the  estate  or  fund,  and  further  stating  by  whom  6 

said  estate  or  fund  has  been  created  or  increased,  and  by  whom  it  is  to  7 

be  administered.  8 

?cTOum!'°  Section  20.     The  register  shall  annually,  on  the  first  Mondays  of  1 

R  ^L  164'  1 16   January,  April,  July  and  October,  account  for  and  pay  over  to  the  state  2 

treasurer  all  fees  and  compensation  which  have  been  received  by  him  3 

otherwise  than  by  salary.  4 


^ceivep™!^^  Section  21.  He  may  at  any  time  receive  and  place  on  file  petitions 
fsTue  cimions  ^^'-^  applications  to  the  probate  coiu-t  or  the  coml  of  insolvency,  and  may 
1860, 163.  issue  orders  of  notice  and  citations  in  like  manner  and  with  like  effect  as 
p.  s.'i58.'§  9.'  if  issued  by  the  judge;  but  if  the  judge  considers  such  notice  insufBcient, 
■  he  may  order  further  notice. 


Register  may 
issue  attach- 
ments, appoint 
appraisers,  etc. 
1881,215,  §  2. 
P.  S.  158,  §  10. 
1894,  199. 
R.  L.  164,  §  14. 
1915,  26. 


Section  22.    The  register  may  issue  process  of  attachment  and  of  1 

execution,  and  all  other  processes  and  all  warrants,  letters  and  licenses  2 

necessary  to  carry  into  effect  any  order  or  decree  of  the  courts,  and  they  3 

may  run  into  any  county  and  shall  be  executed  and  obeyetl  throughout  4 

the  commonwealth.    A  facsimile  of  his  signature  imprinted  by  him  on  5 

all  such  warrants,  letters  and  licenses  and  all  processes  except  executions  6 

shall  have  the  same  validity  as  his  WTitten  signature.    He  may  appoint  7 

appraisers  to  make  any  inventory  required  to  be  returned  to  said  courts.  8 


Assistant 
registers. 
Const,  pt.  2, 
c.  6,  art.  1. 
Const, 
amend.  6, 
(Const.  Rev. 
art.  149.) 
1858,  93, 
H  6,  8. 

G.  S.  119,  §  11, 
P.  S.  158,  §  11. 
1893,  151,  §  1. 

1898,  234. 

1899,  191,  §  1. 

1900,  144,  §  1. 
R.  L.  164.  §  17. 
1904,  286,  I  1. 


Section  23.    The  judges  of  probate  for  each  county  except  Dukes  1 

and  Nantucket  may  appoint  an  assistant  register  of  probate  and  insol-  2 

vency,  in  this  chapter  called  the  assistant  register,  who  may  be  a  woman  3 

and  who  shall  hold  office  for  three  years  unless  sooner  removed  by  the  4 

judge.    Before  entering  upon  the  performance  of  his  duties,  an  assistant  5 

register  shall  take  the  oath  prescribed  by  the  constitution,  and  shall  6 

gWe  bond  to  the  state  treasurer  for  the  faithful  performance  of  his  official  7 

duties  in  a  sum  not  less  than  five  himdred  nor  more  than  five  thou.sand  8 

dollars,  as  ordered  by  the  judge,  with  one  or  more  sureties  approved  by  9 

him.                      1907,  207,  §  1;  442,  §§3, 6.                      1909,248.                      1912,332.  10 


Second 
assistant 
registers. 
1905,  323. 
190S,  231. 
1910,  266. 
1912,  498. 
1916,  264. 
1918,  4. 


Section  24.  The  judges  of  probate  for  the  counties  of  Essex,  INIid- 
dlesex,  Suffolk  and  Worcester  may  appoint  a  second  assistant  register 
for  their  respective  counties,  who  may  be  a  woman,  and  who  shall  hold 
office  for  three  years  unless  sooner  removed  by  the  judge.  They  shall 
be  subject  to  the  laws  relative  to  assistant  registers. 


^giste^ln^**"*      Section  25.    The  judges  of  probate  for  Middlesex  county  may  appoint  1 

igog^w"'        ^  tliird  assistant  register  for  said  county,  who  may  be  a  woman,  who  shall  2 

hold  office  for  tliree  years  unless  sooner  removed  by  the  judges.     He  3 

shall  be  subject  to  the  laws  relative  to  assistant  registers.  4 


Official 
signature  of 
assistant 
register. 
1905,  323. 


Section  26.     The  signing  of  the  name  of  any  second  or  third  assistant  1 

register  followed  by  the  designation,  "assistant  register  ",  shall  be  a  suf-  2 

ficient  official  signature.  3 

190S,  231.  1909,  494.  1910,  2r.6.  1912,  498. 


Duties  of 
assistant 
register. 
1858,  93, 
§§  6,  7. 


Section  27.  An  assistant  register  shall  perform  liis  duties  under  the  1 
direction  of  the  register,  and  shall  pay  over  to  liim  all  fees  and  amounts  2 
received  as  such  assistant.     He  may  authenticate  papers  and  perform    3 


Chap.  217.]    judges  and  registers  of  probate  and  insolvency.  2337 

4  such  other  duties  as  are  not  performed  by  the  register.    In  case  of  the  g.  s.  ii9,  §  12. 

5  absence,  neglect,  removal,  resignation  or  death  of  the  register,  the  as-  r.l.im.IIo. 

6  sistant  may  complete  and  attest  any  records  remaining  unfinished  and 

7  may  act  as  register  until  a  new  register  is  qualified  or  the  disability 

8  removed. 

1  Section  28.     The  register  for  Suffolk  county  may,  subject  to  the  cierkin 

2  approval  of  the  judges  of  probate  for  said  county,  appoint  a  clerk  and  i878,'u9°""*^' 

3  may  remove  him  at  pleasure.  p.  s.  iss,  §  12.  r.  l.  i64,  §  is. 

1  Section  29.     The  register  for  INIiddlesex  coimty  may,  with  the  ap-  cierk  in 

2  proval  of  the  judges  of  probate  for  said  county,  appoint  a  clerk  who  odumy.'''^^ 

3  may  administer  such  oaths  required  in  probate  proceedings  as  are  not  Yall'.  tl'e,  §  1. 

4  prescribed  by  law  to  be  administered  by  the  judge  or  register,  and  shall 

5  perform  such  clerical  and  other  duties  as  may  be  required  by  the  register, 

6  with  the  approval  of  the  judges,  and  he  may  be  removed  by  the  register 

7  with  the  consent  and  approval  of  the  judges  in  the  manner  pro\'ided  by 

8  section  forty-three  of  chapter  thirty-one. 

1  Section  30.     The  judges  of  probate  for  Suffolk  county  shall,  and  P'"^i  9'lj''^™ 

2  the  judge  of  probate  for  Plymouth  coimty  may,  appoint  an  officer  to  Plymouth  inJ 

3  attend  the  sessions  of  the  probate  court  and  coiu-t  of  insolvency  of  the  couinies. 

4  county  for  which  he  is  appointed,  and  may  at  their  pleasure  remove  iss*!  ise! 

5  him  and  fill  any  vacancy  caused  by  removal  or  otherwise.    The  sheriff  of  Jggg  \%_ 

6  Middlesex  county  may  appoint,  subject  to  the  approval  of  the  judges  of  J*^^'  fff 

7  probate  for  said  county,  two  officers  to  serve  as  coiu"t  officers  for  at-  ^^'^^^J 

8  tendance  at  the  sessions  of  the  probate  court  and  coiut  of  insolvency  in  moh'.  149! 

1  •  1911  302 

9  said  county.     Each  court  officer  appointed  hereunder  for  Suffolk  and  1912!  ess! 

10  Middlesex  counties  shall  give  bond  with  sufficient  sureties  approved  by  a  1920',  383'. 

1 1  judge  of  his  court  for  the  faithful  performance  of  his  duties,  in  the  sum  of 

12  one  thousand  dollars  payable  to  the  county  treasurer  in  Suffolk  county, 

13  and  in  the  sum  of  ton  thousand  dollars  payable  to  the  sheriff  in  Middle- 

14  sex  county.    The  court  officer  for  Plymouth  county  shall,  if  required  by 

15  the  court,  gi^'e  a  bond  payable  to  said  county  for  the  faithful  per- 

16  formance  of  his  duties  with  sureties  satisfactory  to  the  court.     Each 

17  officer  appointed  hereunder  shall  serve  the  orders,  precepts  and  proc- 

18  esses  issued  by  the  probate  court  for  which  he  is  appointed  or  by  a 

19  judge  thereof;   and,  except  in  Plymouth  county,  shall  at  his  own  ex- 

20  pense  provide  a  uniform  such  as  the  court  shall  order,  which  he  shall 

21  wear  while  in  attendance  on  said  courts. 

1  Section  31.     The  judges  of  probate  for  Middlesex  county  may  ap-  Messengers 

2  point  two  messengers  for  the  court  of  probate  and  insolvency  for  said  coulJty!^'^*^'' 

3  county,  may  remove  them  at  their  pleasiu-e,  and  may  jill  vacancies  caused  |^°j''  ^^^-  ^  ^^ 

4  by  removal  or  otherwise.     Said  messengers  shall  wait  upon  said  court  joi?,  25|!  1 1. 

5  and  perform  such  duties  as  the  judges  may  direct,  including  duty  as  1919!  228-  372. 

6  court  officers  of  said  court.     They  shall  at  their  own  expense  provide 

7  uniforms,  such  as  the  court  shall  order,  which  they  shall  wear  while  in 

8  attendance  on  said  court. 

1  Section  32.    The  judges  of  probate  for  Suffolk  county  may  appoint  a  Messenger  for 

2  messenger  for  the  court  of  probate  and  insolvency  for  said  county,  may  iujj','42f°""'^' 

3  remove  him  at  their  pleasure,  and  may  fill  a  vacancy  caused  by  removal 

4  or  otherwise.    Said  messenger  shall  wait  upon  said  court  and  perform 


2338 


JUDGES  AND  REGISTERS  OF  PROBATE  AND  INSOLVENCY.      [ClL^P.   217. 


such  duties  as  the  judges  may  direct,  including  duty  as  court  officer.  5 
He  shall  at  his  own  expense  provide  a  uniform,  such  as  the  court  shall  6 
order,  and  shall  wear  it  while  in  attendance  on  said  court.  7 


Allowanoe  to 
registers  for 
clerical 
assistance. 


Barnstable. 
1881,  215,  §  1. 


Section  3-3.     Registers  shall  be  allowed  the  following  amounts  for  1 

clerical  assistance  in  their  respective  counties,  to  be  paid  by  the  com-  2 

monwealth  except  where  otherwise  specified,  to  the  persons  who  actually  3 

perform  the  work,  upon  the  certificate  of  the  register,  countersigned  by  4 

the  judge:  5 

For  the  county  of  —  6 

Barnstable,  one  thousand  dollars.  7 

1919,  236. 


P.  S.  158,  §  24. 
R.  L.  164,  §  28. 


1907,  207,  §  2. 
1914,  559. 


Berkshire. 
1881,215,  §  1. 


Berkshire,  twelve  hundred  dollars. 


p.  S.  158,  §  24. 
R.  L.  164,  §28. 
1904.  286,  §  3. 


1908,328. 
1914,  663. 


1919,  236. 

1920,  594. 


Bristol. 
1879,  292,  §  : 


Bristol,  fifty-three  hundred  dollars,  plus  one  tliird  the  register's  salary'.     9 


1881,  215.  §  1. 
P.  .S.  158,  §  24. 
1889,  136. 
1900.  144.  §  2. 


R.  L.  164,  §§  28,  29. 
1902,412. 
1904,  286,  §  3. 
1908,  327. 


1911,452. 
1912,  160;  353. 
1916,  169. 
1919.  310. 


Dukes. 
1881,215.  §  1. 


Dukes,  one  third  the  register's  salary. 

p.  S.  158.  §  24. 


R.  L.  164,  §  28. 


10 


Essex. 

1881,215,  §  1. 
p.  S.  158,  §  24. 
1886,  114. 


Essex,  eighty-three  hundred  and  fifty  dollars,  plus  one  third  the  reg-  1 1 
ister's  salary.  is95. 174.  R.  l.  164.  §§  2S.  29.  12 

1904.281;  286.  §  3.  1908.374.  1916,125.  1920.594. 


Franklin. 
1881,215.  §  1. 


Franklin,  one  thousand  dollars. 


p.  S.  158,  §  24. 
1893.  151.  §  1. 
R.  L.  164,  §  28. 


1904.  286.  §  3. 
1909,  331. 


1915,  262. 
1919,  236. 


13 


Hampden. 
1881.215.  §  1. 


Hampshire. 
1881.  215.  §  1. 


Hampden,  four  thousand  dollars,  plus  one  third  the  register's  salary.  14 


p.  S.  158,  §  24. 
1896,  219. 

R.  L.  164,  §§  28,  29. 
19CM,  286,  §  3. 


1907,  206. 
1910,335. 
1914,  359. 


Hampshire,  one  thousand  dollars. 


p.  S.  158,  §  24. 
1899, 191, §  2. 
R.  L.  164,  §  28. 


1904,  286,  §  3. 
1908,  326. 


1917,  123. 

1919.  236. 

1920.  594. 


1919.  236. 

1920.  602. 


15 


Middlesex. 
1881.215,  §  1. 
P.  S.  158, 
§24. 

1885,  304. 
1890,  192. 
1893,  344. 
1895,  459. 
1898,  332. 
R.  L.  164, 
§§  28,  29. 


Middlesex,  thirteen  thousand  five  hundred  dollars,  plus  one  third  the  16 

register's  salary;    and  in  addition  forty-eight  hundred  dollars  and  such  17 

further  amount  as  may  be  required  to  comply  ^^^th  section  one  of  chapter  18 

two  hundred  and  sixty  of  the  General  Acts  of  nineteen  hundred  and  19 

eighteen  and  with  "chapter  two  hundred  and  seventy-six  of  the  General  20 

Acts  of  nineteen  hundred  and  nineteen,  payable  by  the  county.  21 

387. 


1904,286,  §  3; 
1909,  353. 


1913,  386. 
1917,  95. 


1919,  59;  236. 

1920,  594. 


Nantucket. 
1881,  215,  §  1. 


Nantucket,  one  third  the  register's  salary. 

p.  S.  158,  §  24.  R.  L.  164,  §  28. 


1904,  286,  §  3. 


02 


Norfolk. 
1881,215.  I  1. 

P.  s.  158.  i  24.   salarv 

1901.302.  Stlld.1.). 


Norfolk,    forty-five   hundred    dollars,    plus    one   third    the   register's  23 

i  28.  29.  24 


1904.  286,  §  3. 
1U05,  183. 


R.  L.  164, 
1913,  227. 


1918,  140. 
1920,  694. 


CUAP.    217.]      JUDGES  AND  REGISTERS  OF  PROBATE  AND  INSOLVENCY.  2339 

25  Plymouth,   fourteen  hundred  dollars,   plus  one  tlih-d   the  register's  Plymouth. 

26  salary.  p.  s.  iss,  §  24.  1894, 322.  ^**^'  ^^^'  ^  ^• 

R.  L.  164,  §§  28,  29.  1904,  219;  286,  §3.  1908,319. 

27  Suffolk,   eighty-six   hundred   dollars;    and   in  addition    twenty-five  Suffolk. 

28  hundred  dollars  and  such  further  amount  as  the  city  council  of  Boston  k  a'  fsl,  §  24. 
.29  may  lawfully  approve,  payable  by  the  county. 

1SS5,  205.  1892,  230.  1897,  317.  1918.  161. 

1888,  280.  1893,  431.  U.  L.  164,  §  29.       1919,  236. 

1889,  418.  1895,  364.  1908,  396.  1920,  594. 

30  Worcester,  seventy-eight  hundred  and  fifty  dollars,  plus  one  third  the  Worcester. 

31  register's  salary.  p.  s.  i5s,  §  24.  ^^^'  ^^^'  ^  ^■ 

1887,39.  1898,117.  1909,384. 

1889,  209.  R.  L.  164,  §§  28,  29.  1910,  329. 

1894,  259.  1904,  286,  §  3.  1919,  236. 

1  Section  34.     The  salaries  of  judges  of  probate,  including  the  junior  s.iianes 

2  judges  in  counties  having  two  judges,  shall  be  paid  by  the  commonwealth,  i,s23,'^i4i'. 

3  and,  except  in  Dukes,  Nantucket  and  Suffolk  counties,  shall  be  based  k^^I;  83^§  49 

4  upon  population  as  determined  by  the  census  of  nineteen  hundred  and  Isss  ll^'s  ^3^' 

5  fifteen,  as  follows:  },859',i78.     ' 

G.  S.  119,  §  16. 

Judges  and  Senior  Judges.  Xmi,  35?!  §  i. 

Population  of  County.  Salary.    1874[  242* 

Under  40,000, $2,800  fi\  l^'  ^«9- 

40,000  to  50,000 2,900  P.  .S-Tss;  §  23. 

50,000  to  60,000, 3,000  Jlfj'  244' 

60,000  to  70,000, 3,100    1884:192:248. 

70,000  to  80,000, 3,200  \fi;  J^s'  ^^^' 

80,000  to  90,000, 3,300  ii^i;'iS9.' 

90,000  to  100,000 3,400  {ggg'  1%  ^®®- 

100,000  to  110,000, 3,500  1889!  211;  251. 

110,000  to  120,000, 3,600  J^UI' 1^.?;  5 1- 

120,000  to  130,000 3,700  527,  ■§  3."" 

130,000  to  140,000 3,800  f^^  Ifd 

140,000  to  1.50,000 3,900  woo;  40s: 

150,000  to  160,000, 4,000  fooi'  l'^;  I  f.- 

160,000  to  170,000, 4,100  455, '§§  1.3.  " 

170,000  to  180,000, 4,200  I's^/'e^'*-' 

180,000  to  190,000, 4,300  1911,  6'6s. 

190,000  to  200,000, 4,400  Jolf'sfo' ^^^• 

200,000  to  220,000, 4,,500  i9i8;284: 

220,000  to  240,000, 4,600  rfi''l''7'8 

240,000  to  260,000, ' 4,700   '  '  '  ' 

260,000  to  280,000 4,800 

280,000  to  300,000, 4,900 

300,000  to  330,000, 5,000 

330,000  to  360,000, 5,100 

360,000  to  390,000, 5,200 

390,000  to  420,000, 5,300 

420,000  to  4,50,000, 5,400 

450,000  to  480,000, 5,.500 

480,000  to  510,000, 5,600 

610,000  to  540,000 5,700 

540,000  to  570,000 5,800 

570,000  to  600,000 5,900 

600,000  to  630,000 6,000 

630,000  to  660,000, 6,100 

660,000  to  690,000, 6,200 

690,000  to  720,000 6,.300 

720,000  to  750,000 6,400 

7.50,000  to  800,000, 6,500 

$100  additional  for  each  50,000  of  population  over  750,000. 


2340 


JUDGES  AND  REGISTEKS  OF  PROBATE  .iND  INSOLVENCY.       [ClL\P.    217. 


Junior  Judges. 

Population  of  County.  Salary. 

400,000  to  420,000, S4,500 

420,000  to  440,000, 5,000 

440,000  to  460,000, 5,100 

460,000  to  480,000, 5,200 

480,000  to  500,000, 5,300 

500,000  to  520,000, 5,400 

520,000  to  540,000, 5,500 

540,000  to  560,000, 5,600 

560,000  to  580,000, 5,700 

580,000  to  600,000, 5,800 

600,000  to  620,000, 5,900 

620,000  to  640,000, 6,000 

640,000  to  660,000, 6,100 

660,000  to  680,000,  • 6,200 

680,000  to  720,000 6,300 

720,000  to  750,000, 6,400 

750,000  to  800,000, 6,500 

SlOO  additional  for  each  50.000  of  population  over  750,000. 


Salaries  of 
registers  and 
assistant 
registers. 
1823,  141. 
1833,  173. 
R.  S.  83.  §  50. 
1856,  284,  §  19. 
1858,  93.  §  14. 
O.S.I  19,  §  16. 
1864,  298. 
1867,  357,  §  1. 
1871,  300. 
1874,  242; 
269;  327; 
369. 
P.  S.  158,  §  23. 


Section  35.     The  salaries  of  registers  and  all  assistant  registers  shall  1 

be  paid  by  the  commomvealth,  and  except  in  Dukes,  Nantucket  and  2 

Suffolk  counties,  shall  be  as  follows:  3 

Registers,  five  hundred  dollars  less  than  the  salaries  paid  the  senior  4 

judges  of  their  respective  counties.  5 

Assistant  registers,  seventy  per  cent  of  the  salaries  paid  their  respec-  6 

live  registers.  7 

Second  and  third  assistant  registers,  sixty  and  fifty-five  per  cent,  8 

respectively,  of  the  salaries  paid  their  ^especti^•e  registers.  9 


1884,  192;  248. 

1887,  259;  273. 

1S88,  152. 

1891,318. 

1893,  151,  §  2;  469,  §  1. 

1898,  234. 

1899,  191,  I  2;  264. 

1900,  144,  §  1;  328;  347. 


R.  L.  164,  §  27. 

1904,  286,  §  2;  455,  §§1,3. 

1905,  333. 

1906,  265. 

1907,  207,  §  1;  442,  §  5. 

1909,  431;  494. 

1910,  266. 

1911,  73;  668. 


1912,  332;  498;  654. 

1913,  791. 

1915,  280. 

1916,  276,  §  2. 
1917,214;  336. 

1918,  284. 

1919,  353,  §§  3-6,  8. 

1920,  626. 


Adjustments 
of  salaries. 
1904,  455, 
§§2,4. 
1919,  353,  §  7. 


Section  36.  In  the  year  following  each  state  and  national  census, 
the  state  treasurer  shall  adjust  the  salaries  pro\'ided  for  in  the  two  pre- 
ceding sections  in  accordance  with  said  sections,  on  the  basis  of  said 
census,  and  the  salaries  so  adjusted  shall  be  allowed  from  January  first 
in  the  year  of  adjustment. 


Salaries  of 
judges,  etc., 
Dukes  and 
Nantucket 
counties. 


Section  37.  In  Dukes  and  Nantucket  counties  the  salaries  of  the 
judges  of  probate  and  the  registers  shall  be  as  follows:  judges,  eighteen 
hundred  dollars;   registers,  tliirteen  hundred  dollars. 

1904,  455,  §§1,3. 
1912,  378. 
1914,  620. 

1917,  S.^ie. 

1918,  284. 

1919,  353,  §§  9,  10. 


1823,  141. 

R.  S.  83,  §§  49.  50. 

1858,  93.  §§  13,  14. 

1859,  178. 

G.  S.  119,  §  16. 
1804,  298. 


1867,  357,  §  1. 


P.  S.  158,  §  23. 
1885,  318. 
1890,  115. 
1893,  469,  §  1. 
1901,  485. 
R.  L.  164,  §  27. 


fudges^^'e"'   in       Section  38.     In  Suffolk  county  the  salaries  of  the  judges  of  probate 

suffoik^jounty.  shall  be  eighty-five  huiulred  dollars;   of  the  register,  sixty-five  hundred 

R.  s.'s3,  ■         dollars,  and  of  the  assistant  registers,  seventv  per  cent  of  that  of  the 
§§49,50.  .  ^   '  "^  -    ^ 

1858, 93,  register. 

§§13,14. 


G.S. 

119,  §  16. 

1S64,  298. 

1867.357,5  1- 
1871,  277. 
1878,  119. 
P.  S.  158,  §  23. 
1882,  144. 
1885,  203. 

1891,91 
1893,  469, 
R.  L.  164, 
1904,  455, 
1908,  231 
1911,445; 

§  1- 
§27. 
§§1.3. 

668. 

1912,  585. 

1913,  791. 

1917,  336. 

1918,  284. 

1919,  353, § 
1920, 623; 6 

Chap.  217.]    judges  and  registers  of  probate  and  insolvency.  2341 

1  Section  39.     Clerks  of  the  registers  shall  reoei%-e  from  the  common-  Salaries  ot 

2  wealth  salaries  as  follows:  '='"''^'  ^"^• 

3  For  the  county  of  — 

4  Middlesex,  two  thousand  dollars.  Middlesex 

1915,  41,  §  1. 
1916,  276,  §1.  1919,354. 

5  Suffolk,  fifteen  hundred  dollars.  ?"?„°"^„ 

'  187S,  119. 

P.  S.  158,  §  23.  R.  L.  164,  §  27.  1914,  4S3.  1920,  477. 

6  Court  officers  for  attendance  at  sessions  of  the  probate  courts  shall  Court  officers. 

7  receive  from   their   respective   counties  salaries  and  compensation  as 

8  follows: 

9  For  the  county  of  — 

10  INIiddlesex,   twenty-four  himdred   and   eighty-four  dollars,   and  one  Middlesex. 

11  hundred  dollars  annually  to  provide  a  uniform,  together  with  ten  cents  ill! im; § 34. 

12  a  mile  for  travel  out  and  home  once  a  week  during  such  attendance  if  the  il]i7',335,  §  2. 

13  distance  exceeds  &xe  miles  one  way. 

1918,  2G0,  §1.  1919,276.  1920,494. 

14  Plymouth,  four  hundred  and  fifty  dollars,  subject  to  the  approval  of  f9^™6"5^• 

15  the  county  commissioners.  1920, 383. 

16  Suffolk,  twenty-six  hundred  and  forty  dollars  and  one  hundred  dollars  Suffolk. 

17  annually  to  provide  a  uniform.  iss7,  ise. 

1894,  66.  1904,  272.  1918,  260,  §  1. 

1898,  146.  1906,  149.  1919,  276. 

R.  L.  164,  §33.  1912,658.  1920,494. 

18  Messengers  of  the  probate  courts  shall  receive  from  their  respective  Messenger. 

19  counties  salaries  and  compensation  as  follows: 

20  For  the  county  of  — 

21  Middlesex,  twenty-four  hundred  and  eighty-four  dollars,  and  one  him-  Middlesex. 

22  dred  dollars  annually  to  provide  a  uniform,  together  with  ten  cents  a  r.  l;  1&4;  §  35. 

23  mile  for  travel  out  and  home  once  a  week  during  attendance  at  sessions  \l°j\  253! 

24  of  the  court. 

1918,  166.  1919,  228;  372.  1920,  494. 

25  Suffolk,  twenty-two  hundred  and  eighty  dollars  and  one  hundred  dollars  Suffolk. 

26  annually  to  pro\'ide  a  uniform.  1919,42.  1920,494.  1904,272. 

1  Section  40.     A  judge  performing  any  duty  under  section  eight  shall  ^°™§g"g°o°° 

2  receive  from  the  commonwealth,  in  addition  to  the  amount  otherwise  certain  duties. 

1S')2  337   §  3. 

3  allowed  him  by  law,  fifteen  dollars  for  each  day  that  he  performs  such  1S94!  377!  |  3. 

4  duties. 

1899,  345,  §  3.  R.  L.  164,  §  7.  1904,  401,  §  2.  1  Op.  A.  G.  232. 

1  Section  41.     Whenever  a  special  judge  holds  a  session  of  the  probate  compensation 

2  court  or  court  of  insolvency,  he  shall  receive  from  the  commonwealth  the  "udTeT."'' 

3  same  compensation  that  a  judge  of  probate  for  another  county  would  be  }yi|;  |} J;  ^  ^• 

4  entitled  to  receive  for  the  same  service. 

1  Section  42.     Judges  and  registers  shall  receive  from  their  respective  Traveling 

2  counties  their  actual  and  proper  traveling  expenses  incurred  by  them  in  igg^sTii. 

3  the  performance  of  their  official  duties  in  holding  and  attending  court  at  ^-  ^-  ^^^'  ^  ^"^ 

4  a  place  other  than  that  where  the  registry  of  probate  is  situated,  upon 

5  an  itemized  statement  of  such  expenses  being  certified  to,  and  approved 

6  by,  the  county  commissioners  of  their  respective  counties. 


2342 


DISTRICT   COtTRTS. 


[ClLiP.    218. 


Compensation 
of  temporary 
register. 
Certain  fee,s, 
etr,,  forbidden. 
1817,  190.  5  2. 
1823.  141,  I  3. 
R.  S.  8.3. 
§§  24,  52. 

1856,  284, 
§§  14,21. 

1857,  274, 

1858,  93, 
§§2,3.5. 
G.  S.  119, 
§§  17,  18. 
P.  S.  158, 
§§  25,  26. 
R.  L,  164, 
§§31,32. 


,12. 


Section  43.  A  temporary  register  shall  be  entitled  to  the  same  com-  1 
pensatiou  as  the  register,  and  shall  be  paid  by  him  if  the  appointment  is  2 
caused  by  his  absence;  but  if  the  appointment  is  caused  by  his  death,  3 
removal  or  resignation,  the  temporary  register  shall  be  paid  by  the  com-  4 
monwealth.  No  judge  or  register  shall  recei\e  any  fee  or  compensation  5 
in  addition  to  his  salary  for  holding  or  attending  courts  or  acting  as  6 
judge  or  register  in  any  county,  nor  for  anything  done  in  his  official  7 
capacity,  except  as  expressly  pro^^ded  by  law,  but  any  judge  of  pro-  8 
bate  assisting  another  judge  in  the  performance  of  his  duties  may  9 
receive  compensation  from  liim,  if  not  entitled  to  recei^•e  it  from  the  10 
commonwealth.  1906,59.  11 


REFERENCES. 

§    4.     Filling  vacancy  in  office  of  register,  Chap.  54,  §  142. 
Election  of  registers,  Chap.  54,  §  156. 
Removal  of  register,  Chap.  211,  §  4. 
§   6.    Appointment  of  judge  or  register  to  be  executor  or  administrator  of  his  wife, 

etc..  Chap.  192,  §  7. 
§  12.    Right  of  register  to  be  reimbursed  for  premiums  paid  on  bonds,  Chap.  30,  §  17. 
§  15.    Duty  to  deposit  money  in  bank,  Chap.  35,  §  22. 

§§  34-39.     Salaries  of  certain  individuals,  191S,  260,  as  amended  by  1919,  276;  also 
1919,  353,  §  14. 
Annual  estimates  for  Suffolk,  1910,  373. 

Appointment  of  additional  officers  in  Middlesex  and  Worcester  counties  who 
may  be  assigned  to  attend  sessions  of  the  probate  court.  Chap.  221,  §  70. 


CHAPTER    218 

DISTRICT  COURTS. 


Sect, 
territorial  jurisdiction  and  powers. 

1.  Territorial    jurisdiction    and    place    of 

holding  court. 

2.  Concurrent     jurisdiction     of     Boston 

municipal  courts  over  waters,  islands, 
etc. 

3.  Criminal  jurisdiction  of  certain  courts 

in  Boston  over  waters  and  islands. 

4.  Courts  of  record  and  superior  jurisdic- 

tion.    Seal. 

5.  Service  of  process  in  contempt  cases. 

JUSTICES   AND    SPECIAL  JUSTICES. 

6.  Justices  and  special  justices. 

7.  Administration  of  oaths. 

CLERKS    AND    ASSISTANT    CLERKS,    ETC. 

8.  Clerks. 

9.  Temporary  clerks. 

10.  Assistant  clerks. 

11.  Temporary  assistant  clerks. 

12.  Clerks,  etc.,  to  be  sworn.     Duties  and 

powers. 

MISCELLANEOUS   PROVISIONS. 

13.  Destruction  of  old  documents. 

14.  Facsimile  signature  permitted  in  certain 

cases. 


Sect. 

15.  Office  hours  of  clerks. 

16.  Bond  of  clerk  or  justice. 

17.  Justice,  clerk,  etc.,  not  to  act  as  attor- 

ney in  his  court. 
IS.  Justice,  clerk,  etc.,  not  to  receive  cer- 
tain fees. 

CIVIL   JURISDICTION. 

19.  Civil  jurisdiction  in  general. 

20.  Scire  facias. 

SMALL    CL.\IMS   PROCEDURE. 

21.  Alternative   procedure   established   by 

rule  for  small  civil  cases. 

22.  Procedure. 

23.  Judgment  final  unless  removal. 

24.  Transfer  to  ordinary  docket. 

25.  Discretion  as  to  costs. 

CRIMINAL   JURISDICTION. 

26.  Jurisdiction  of  o£fences. 

27.  Power  to  impose  penalties. 

28.  Recognizances  to  keep  the  peace. 

29.  Jurisdiction    of    felonies    by    juvenile 

offenders. 

30.  Binding  over  to  superior  court. 

31.  Delay  in  executing  sentence  exceeding 

six  months.     Appeal. 


CiLVP.  218.] 


DISTRICT   COUETS. 


2343 


Sect. 

32.  Complaints  and  warrants. 

33.  Clerk,  etc.,  may  issue  warrants,  etc. 

34.  Warrant    dispensed    with    in    certain 

cases. 

35.  Justice,  etc.,  may  issue  warrants,  etc., 

individually. 

36.  Justice  of  peace  with  power  to  issue 

warrants   and   take   bail. 

37.  Process  for  witnesses  and  defendants  in 

criminal  and  juvenile  cases,  direction 
and  service. 


SESSIONS   AND    PROCEEDINGS. 

38.  Courts  always  open,  sittings  and  ad- 

journments. 

39.  Books  and  supplies.  • 

40.  Who  may  hold  court,  etc. 

41.  Powers  and  duties  of  special  justice. 

42.  Adjournment  when  justice  absent. 

43.  Uniform  rules  of  courts. 

44.  Process,    formal    requisites.     To    run 

throughout  commonwealth. 

45.  Depositions. 

46.  Notice  of  decisions,  etc. 

47.  Payments  and  accounts  by  clerks. 


ADDITIONAL    PROVISIONS    RELATIVE    TO    MU- 
NICIP-1L    COURTS. 

48.  Sentences  to  Deer  island. 

49.  Payment  of  certain  fees  by  clerks,  ad- 

vances and  accounting  therefor. 


ADDITIONAL  PROVISIONS  RELATIVE  TO  THE 
MUNICIPAL  COURT  OF  THE  CITT  OF 
BOSTON. 

50.  Justices. 

51.  Allowance  of  accounts,  etc. 

52.  Assignment  of  justices,  additional  ses- 

sions.    Special  justices,  assignuient, 
compensation,  powers  and  duties. 

53.  Clerks  and  assistant  clerks. 

54.  Civil  jurisdiction. 

55.  Medical  service  and  equipment. 

56.  Accounts  of  clerks. 


Sect. 

special  provisions  relative  to  the  bos- 
ton juvenile  court. 

57.  Territorial  jurisdiction. 

58.  Justices  and  clerk. 

59.  Powers,  duties  and  procedure. 

60.  Jurisdiction  over  offenders,  etc.     Rules. 

COURT    OFFICERS. 

61.  Appointment,     tenure,     powers     and 

duties. 

62.  Number. 

63.  Uniforms  in  Boston. 

64.  Bonds  in  Boston. 

65.  Temporary  court  officers. 

MESSENGERS    AND    INTERPRETERS. 

66.  Messenger  of  Boston  municipal  court. 

67.  Interpreters  in  Boston  municipal  court. 

68.  Interpreter    in    East    Boston    district 

court. 

CLERICAL   ASSISTANCE. 

69.  Clerical  assistance  to  certain  clerks. 

70.  Same  subject. 

71.  Clerical  assistance  to  clerk  of  central 

Worcester. 

72.  Clerical  assistance  to  clerks  of  Boston 

municipal  court. 

73.  Clerical  assistance  outside  of  Boston. 

SALARIES. 

74.  Monthly  payments. 

75.  Salaries  in  Boston  municipal  court. 

76.  Salaries  in  Boston  juvenile  court. 

77.  Salaries  of  justices  in  Dukes  and  Nan- 

tucket. 

78.  Classified  salaries,  justices. 

79.  Same,  clerks  and  assistant  clerks. 

80.  Salaries  of  assistant  clerks  in  municipal 

court  of  the  Charlestown  district. 

81.  Traveling  expenses. 

82.  Periodical  readjustment    of    classified 

salaries. 

83.  Salaries  of  court  officers. 

84.  Computation  of  compensation. 


TERRITORIAL   JURISDICTION    AND    POWERS. 

1  Section  1.     The  iudicial  districts  of  the  several  district  courts  shall  Territorial 

.  1         p    11         •  •    •  1  J  •  jurisdiction 

2  continue  to  comprise  the  following  cities,  towns,  wards  and  territory,  andpiaooof 

3  in  the  following  counties,  respectively :  couh. 

p.  3.  154,  §  2.  1893,  396,  §  69.  R.  L.  160,  §  2. 


Barnstable. 

4  The  first  district  court  of  Barnstable,  held  at  Barnstable  and  Bourne;  First  Barn- 

5  Barnstable,  Bourne,  Yarmouth,  Sandwich,  Falmouth  and  Mashpee.  i89o,''i77,  §  i. 

6  The  second  district  court  of  Barnstable,  held  at  Harwich  and  Prov-  second  Bam- 

7  incetown;    Provincetown,  Truro,  Wellfleet,  Eastham,  Orleans,  Brewster,  tsgo,"!??,  §  2. 

8  Chatham,  Harwich  and  Dennis. 


2344 


DISTRICT   COURTS. 


[Chaf.  218. 


Central 
Berkshire. 
1850.310,  I  1 
G.  S.  110,  §  1. 
1869,41(1.  §  1. 
1881.  10,5, 
1917,  302. 
Northern 
Berkshire. 
1854,277,  §  1. 
G.  S.  116,  §  1. 


Southern 
Berkshire. 
1870,  202,  §  1. 
1917,  302. 


Fourth 
Berkshire. 
1854,  277,  5  1. 
G.S.  116,  §1. 


Police  court 
of  Lee. 

1853,312,  §  1. 
G.  S.  lit).  §  1. 
P.  S.  1.54.  §  1. 
R.  L.  lliO,  §  1. 
1917,  302. 


Police  court 
of  Williams- 
town. 
1855,  83,  §  1. 


Berkshire. 

The  district  court  of  central  Berkshire,  held  at  Pittsfield;  Pittsfield,  9 
Hancock,  Lanesborough,  Peru,  Hinsdale,  Dalton,  Washington,  Rich-  10 
mond,  Lenox  and  Becket;  the  police  court  of  Lee  exercising  concur-  11 
rent  jurisdiction  in  Lenox  and  Becket.  12 

The  district  court  of  northern  Berkshire,  held  at  North  Adams;  13 
North  Adams,  Clarksburg  and  Florida.  14 

1S70,  201,  §  1.  .  1878,  143,  §  6. 

The  district  court  of  southern  Berkshire,  held  at  Great  Barrington;  15 

Sheffield,   Great  Barrington,   Egremont,   Alford,   INIount  Washington,  16 

Monterey,  New  Marlborough,  West  Stockbridge  and  Sandisfield;    the  17 

police  court  of  Lee  exercising  concurrent  jurisdiction  in  Sandisfield.  18 

The  fourth  district  court  of  Berkshire,   held   at  Adams;    Adams,  19 

Cheshire,  Savoy  and  Windsor.  20 

1870,  201,  §§  1,  10.  1878,  143,  §  6.  1895,  176,  §§  1,  4. 

The  police  court  of  Lee,  held  at  Lee;  Lee,  Stockbridge,  Tj-ringham,  21 
Otis,  Sandisfield,  Lenox  and  Becket;  the  district  court  of  southern  22 
Berkshire  exercising  concurrent  jurisdiction  in  Sandisfield  and  the  dis-  2.3 
trict  court  of  central  Berkshire  exercising  concurrent  jurisdiction  in  24 
Lenox  and  Becket.  25 

The  police  court  of  Williamstown,  held  at  Williamstown;  Williams-  26 
town  and  New  Ashford.  27 

G.  S.  116,  §  1.  P.  S.  154,  §  1.  n.  L.  160,  §  1.  1917,  302. 


First  Bristol. 
1858,  84,  §  1. 
G.  S.  116,  §  1. 
1874,  293,  I  1. 


Second 
Bristol. 
1852,304,  §  1. 
G.S.  116,  §  1. 
1874,293.  §  1. 


Third  Bristol. 
1834,  33. 
R.  .S.  87,  §  2fl. 
G.S.  116,  §  1. 
1874,293,  §  1. 
1878,  152. 

Fourth  Bristol. 
1874,  293,  §  1. 
1877,  189. 


Bristol. 

The  first  district  court  of  Bristol,  held  at  Taunton;  Taunton,  Reho-  28 

both,  Berkley,  Dighton,  Seekonk,  Easton  and  Raynham.  29 

1S77,  189.  1903,  214,  §  1. 

The  second  district  court  of  Bristol,  held  at  Fall  River;   Fall  River,  30 

Somerset,  Swansea,  Freetown  and  Westport;    the  third  district  court  31 

of  Bristol  exercising  concurrent  jurisdiction  in  Freetown  and  Westport.  32 

1878, 152. 

The  third  district  court  of  Bristol,  held  at  New  Bedford;   New  Bed-  33 

ford,  Fairhaven,  Acushnet,  Dartmouth,  Freetown  and  Westport;    the  34 

second  district  court  of  Bristol  exercising  concurrent  jurisdiction  in  35 

Freetown  and  Westport.  36 

The  fourth  district  court  of  Bristol,  held  at  Attleboro;    Attleboro,  37 

North  Attleborough,  Mansfield  and  Norton.  i903, 214,  §§  1, 4.  38 


Dukes  County. 
1.898,  287,  §  1. 
1907,  27. 


First  Esses. 
1831,70. 
R.  S.  87,  §  29. 
G.S.  116,  §  1. 


Second  Essex. 
1888,  193,  §  1. 
1917,  302. 


Dukes  County. 

The  district  court  of  Dukes  County,  held  at  Oak  Bluffs,  Edgartown  39 
and  Tisbury;    Dukes  County.  40 

Essex. 

The  first  district  court  of  Essex,  held  at  Salem;    Salem,  Beverly,  41 
Danvers,  Hamilton,  Middleton,  Topsfield,  Wenham  and  Manchester. 


42 


1874,  224, 


1,2. 


1917,  302. 


The  second  district  court  of  Essex,  held  at  Amesbury;  Amesbury,  43 
INIerrimac  and  Salisbury;  the  police  court  of  Newburyport  exercising  44 
concurrent  jurisdiction  in  Salisbury.  45 


Chap.  218.]  district  courts.  ■  2345 

46  The  third  district  court  of  Essex,  held  at  Ipswich;  Ipswich.  i906'^2^9^^}'i 

47  The   central  district  court  of  northern  Essex,   held   at  Haverhill;  central 

48  Haverhill,  Groveland,  Georgetown,  Boxford  and  West  Newbury;    the  E°ss*ex'™ 

49  police  court  of  Newburyport  exercising  concurrent  jurisdiction  in  West  cf^'ubS^i 

50  Newbury.  isei,  207,  §  1.  isee,  290. 

1S67,  316.  1S96,  365.  1S99.  255.  1917,  302. 

51  The  district  court  of  eastern  Essex,  held  at  Gloucester;    Gloucester,  Eastern  Essex. 

52  Rockport  and  Essex.  g.  s.  iib,  §  i.  .      .  s  • 

p.  S.  154,  §  1.  1888,  249.  1897. 403.  1900, 400. 

53  The  district  court  of  southern  Essex,  held  at  Lynn;  Lynn,  Swamp-  southern  Essex. 

54  scott,  Saugus,  Marblehead  and  Nahant.        g.  s.  ur>,  §  i.        p.  s.  154,  §  i.  1849,  se,  §1. 

R.  L.  160,  §  1.  1909,117.  1911,  414,  §1.  1917,302. 

55  The  district  court  of  Lawrence,  held  at  LawTence;    Lawrence,  An-  District  court 

56  dover.  North  Andover  and  Methuen.  iS48. 26b,  §i.  g.  s.  ii6, 5 1-  ofLa^-rence. 

p.  S.  154,  §  1.  R.  L.  160,  §  1.  1914,  532.  1917,  302. 

57  The  police  court  of  Newburyport,  held  at  Newburyport;    Newbury-  Police  court 

58  port,  Newbury,  Rowley,  Salisbury  and  West  Newbury;    the  second  pon.^"''"'^' 

59  district  court  of  Essex  exercising  concurrent  jurisdiction  in  Salisbury  ^^g-  |p§  29" 

60  and  the  central  district  court  of  northern  Essex  exercising  concurrent  pg^|- 1^'  |  ^■ 

61  jurisdiction  in  West  Newbury.  1902, 455.  1917, 302. 

62  The   district  court   of   Peabody,   held   at   Peabody;    Peabody  and  °'p^bod°'"^* 

63  Lynnfield.  1917, 2si,  §§  1, 3;  302. 

FranJclin. 

64  The  district  court  of  Franklin,  held  at  Greenfield,  at  Turners  Falls  Prankiin. 

65  in  Montague,  and   at  Shelburne   Falls  in  Shelburne   and    Buckland;  ^*^®'^°^' ^'• 

66  Frankhn  county,  except  Orange,  Erving,  Warwick,  Wendell  and  New 

67  Salem. 

68  The  district   court  of  eastern   Franklin,   held  at  Orange;    Orange,  Eastern 

69  Erving,  Warwick,  Wendell  and  New  Salem.  is99, 391,  §  1.  Frankim. 

Hampden. 

70  The  district  court  of  eastern  Hampden,  held  at  Palmer;    Palmer,  Eastern 

71  Brimfield,  Monson,  Holland,  Wales  and  Wilbraham.  Hamp<ien. 

1872,  277,  I  1.  1874,  180,  §  1.  1907,  110. 

72  The  district  court  of  western  Hampden,  held  at  Westfield  and  Chester;  western 

73  Westfield,  Chester,  Granville,  Southwick,  Russell,  Blandford,  Tolland  fss^m 

74  and  Montgomery.  ^^  ^'  ^• 

75  The  police  court  of  Chicopee,  held  at  Chicopee;  Chicopee.  PoUce  court 

1855,  463,  §  1.  G.  S.  116,  §  1.  P.  S.  154.  §  1.  R.  L.  160.  §  1.  °^  Chicopee. 

76  The  police  court  of  Holvoke,  held  at  Holvoke;   Ilolvoke.  Police  court 

'  ^  '  .  V  q[  Holyoke. 

1871,  173,  §  1.  P.  S.  154,  §  1.  R.  L.  100,  §  1. 

77  The  police  court  of  Springfield,   held   at   Springfield;    Springfield,  of°g™™fl^g'j, 

78  West  Springfield,  Agawam,  Longmeadow,  East  Longmeadow,  Hampden  ism,  m  « 22'. 

79  and  Ludlow.  is74,  iso,  §§  1, 2.  i878,  ss,  §  7.  1917, 302. 

HaviysJiire. 

80  The  district  court  of  Hampsliire,   held  at  Northampton,   Amherst,  Hampshire. 

_  .1  SCO     0*>7 

81  Cummmgton,  Belchertown,  Huntington  and  Easthampton;   Hampshire  §§  r,'3.  ' 

82  county,  except  Ware,  Enfield,  Greenwich  and  Prescott.  1903, 412. 


2346 


DISTRICT   COUETS. 


[Ch.\p.  218. 


Eastern 
Hampshire. 
1882,  227, 
§§1,3. 


The  district  court  of  eastern  Hampshire,  held  at  Ware;  Ware,  Enfield,     S3 
Greenwich  and  Prescott.  laos,  412,  §§  1, 3, 5.  84 


Central 
Middlesex. 
1S74,  315,  §  1. 

First  northern 
Middlesex. 
1872,269,  §  1. 


First  eastern 
Middlesex. 
1874,  392,  §  1. 

Second  eastern 
Middlesex. 
1881,  128.  §  1. 

Third  eastern 
Middlesex. 
1854,  335,  §  1. 
G.  S.  116,  §  1. 


Fourth  eastern 
Middlesex. 
1874,  392,  5  1. 
1882,  233,  §  2. 
1888,  59. 

First  southern 
Middlesex. 
1.874,  35,  §  1. 

1881,  223. 

1882,  169. 

Police  court 
of  Lowell. 
1833,  64,  §  1. 
R.  S.  87,  §  29. 


Police  court 
of  Marl- 
borough. 

District  court 
of  Natick. 


Police  court 
of  Newton. 


Police  court 
of  Somerville. 


Middlesex. 

The  district  coiul  of  central  ISIiddlesex,  held  at  Concord;  Concord, 
Acton,  Bedford,  Carlisle,  Lincoln,  Maynard,  Stow  and  Lexington. 

The  first  district  court  of  northern  Middlesex,  held  at  Ayer;  Ayer, 
Groton,  Pepperell,  Townsend,  Ashby,  Shirley,  Westford,  Littleton  and 
Boxborough. 

The  first  district  court  of  eastern  Middlesex,  held  at  Maiden;  Mai- 
den, Wakefield,  Melrose,  Everett  and  Medford.        1893, 350.        1909, 93. 

The  second  district  court  of  eastern  Middlesex,  held  at  Waltham; 
Waltham,  Watertown  and  Weston. 

The  tliird  district  court  of  eastern  Middlesex,  held  at  Cambridge; 
Cambridge,  Arhngton  and  Belmont. 


P.  S.  154, 


1882,  233,  I  1. 


The  fourth  district  court  of  eastern  ]\Iiddlesex,  held  at  Woburn; 
Woburn,  Winchester,  Burlington,  Wilmington,  Stoneham,  Reading  and 
North  Reading.  issg.  312.  i898, 250.  1909, 93. 

The  first  district  court  of  southern  Middlesex,  held  at  Framingham; 
Framingham,   Ashland,   Holliston,   Sherborn,   Sudbury,  Wayland   and  100 


85 
86 
87 
88 
89 
90 
91 
92 
93 
94 
95 

96 

97 
98 
99 


Hopkinton.  i9i7, 302. 

The  police   court   of  Lowell,   held   at   Lowell;    Lowell,   Tewksbury, 
Billerica,  Dracut,  Chelmsford,  Dunstable  and  Tyngsborough. 


101 
102 
103 


G.S.  116,  §  1. 


P.  S.  154,  §  1. 


R.  L.  160,  §  1. 


1904,  264. 


The  police  court  of  JNIarlborough,  held   at   IMarlborough;    Marlbor-  104 

ough  and  Hudson.  is82, 233,  §  3.  r.  l.  160,  §  1.  i9i7, 302.  105 

The  district  coiu-t  of  Natick,  held  at  Natick;  Natick.  106 

1917,  274,  §§  1,  3. 

The  police  court  of  Newton,  held  at  Newton;  Newton.  107 

1876,  195,  §  1.  P.  S.  154,  §  1.  R.  L.  160,  §  1. 

The  police  court  of  Somerville,  held  at  Somerville;  Somerville.  108 

1872,  233,  §  1.  P.  S.  154,  §  1.  R.  L.  160,  §  1. 


Nantucket. 
1913,  508, 
§§1.3. 


Northern 
Norfolk. 
1898,  478. 


East  Norfolk. 
1872,  289,  §  1 
1875,  6. 
1912,  394,  §  1 


Nantucket. 

The  district   court   of  Nantucket,   held   at  Nantucket;    Nantucket  109 
county.  1915,101.  1918,245.  no 

Norfolk. 

The  district  court  of  northern  Norfolk,  held  at  Dedham;    Dedham,  111 
Dover,  Norwood,  Westwood,  IVIedfield,  Needham  and  Wellesley.  112 

1911,469,  §  5. 

The  district  court  of  East  Norfolk,  held  at  Quincy;    Quincy,  Ran-  113 

dolph,  Braintree,   Cohasset,  Wej^mouth,  Holbrook  and  Milton;    and,  114 

in    criminal    cases,    concurrently    with    the    second    district    court   of  115 

Plymouth,  that  part  of  Scituate  described  in  chapter  three  hundred  116 

and  ninety-four  of  the  acts  of  nineteen  hundred  and  twehe.     Arrests  117 

and  service  of  process  in  such  cases  may  be  made  by  an  officer  quali-  118 

fied  to  serve  criminal  process  in  Cohasset.     This  pronsion  shall  not  119 

increase  the  judicial  district  of  said  court  for  the  purposes  of  section  120 

seventy-eight.  121 


Chap.  218.]  district  courts.  2347 

122  The  district  court  of  southern  Norfolk,  held  at  Stoughton  and  Canton;  Southern 

123  Stoughton,  Canton,  Avon  and  Sharon.  i89i,273,  §§  1,3. 

124  The  district  court  of  \Aestern  Norfolk,  held  at  Franklin  and  Walpole;  westem 

125  Franklin,  Walpole,  Bellingham,  Foxborough,  Medway,  Millis,  Norfolk,  is9s,°497,  §  1. 

126  Wrentham  and  Plainville.  i90s,  255,  §  7. 

127  The  municipal  court  of  Brookline,  held  at  Brookline;   Brookline.  Municipal 

court  of 
1SS2,  233,  §  4.  1S98,  214.  R.  L.  160,  §  5.  Brookline. 

Plymouth. 

128  The    second    district    court    of    Pljinouth,    held    at    Abington    and  lij^outh. 

129  Hingham;    Abington,  Hinghain,  Whitman,  Rockland,  Hull,  Hanover,  }|7|'3|°i^iJ- 

130  Scituate,  Norwell  and  Hanson.  isro.  243,  §  3. 

131  The  tliird  district  court  of  Pljonouth,  held  at  Plymouth;   Plymouth,  Third 

132  Kingston,  Plympton,  Pembroke,  Duxbury,  Marslifield  and  Halifax.  i87"'350,'§  1. 

1879,  248,  §  3.  1917,  302. 

133  The  fourth  district  court  of  Plymouth,  held  at  Middleborough  and  l^^^^^i^_ 

134  Wareham;  Middleborough,  Wareham,  Lake\ille,  Marion,  ]\Iattapoisett,  }||o|o°'^'' 

135  Rochester  and  Carver.  1917,302. 

136  The  police  court  of  Brockton,  held  at  Brockton;    Brockton,  Bridge-  PoHce  court  of 

137  water.  East  Bndgewater  and  West  Bndgewater. 

1874.  316,  §  1.         1S75,  23.  ISSo,  153,  §  1.         1887,  322. 


Brockton. 


Suffolk. 

138  The  municipal  court  of  the  city  of  Boston,  held  at  Boston;  wards  six.  Municipal 

139  seven,  eight,  nine,  ten,  eleven,  twehe,  sixteen,  seventeen  and  eighteen  BoTton. 

140  of  Boston  as  they  existed  on  February  first,  eighteen  hundred  and  eighty-  r^'J;  87^'§  i!' 

141  two;  and  in  criminal  cases,  concurrently  with  the  municipal  courts  of  fgel; 279,' | /." 

142  the  Roxbury  and  Brighton  districts,  the  second  and  third  district  courts  J|^|'  m^  1 1- 

143  of  eastern  Middlesex,  and  the  police  court  of  Newlon,  respectively,  so  ^^''fi^'J^o 

144  much  of  the  Charles  river  basin,  as  defined  in  section  two  of  chapter  five  R.'il  i6d,  §  4.' 

145  hundred  and  twenty-four  of  the  acts  of  nineteen  hundred  and  nine,  as  154  Mass'.  128. 

146  affected  by  chapter  two  hundred  and  forty-five  of  the  General  Acts  of 

147  nineteen  hundred  and  sixteen,  as  is  within  the  districts  of  said  courts. 

148  The  municipal  court  of  the  Brighton  district,  held  at  Brighton  in  Municipal 

149  Boston;    ward  twenty-five  of  Boston  as  it  existed  on  February  first,  BHEhton 

150  eighteen  hundred  and  eighty-two.  is74, 271,  §  14.  district. 

1875,  243,  §4.  1876,  240,  §  6;  242.  P.  S.  154.  §  42.  R.  L.  160.  §  4. 

151  The  municipal  court  of  the  Charlestown  district,  held  at  Charles-  Municipal 

152  town  in  Boston;    wards  tlu-ee,  four  and  fi\'e  of  Boston  as  they  existed  chariestown 

153  on  February  first,  eighteen  hundred  and  eighty-two.         1862, 107,  §  1.  district. 

1873,  286,  §  4.  1875,  243.  §  4.  P.  S.  154,  §  42. 

1874,  271,  §  4.  1876,  240,  §  3.  R.  L.  160,  §  4. 

154  The  police  court  of  Chelsea,  held  at  Chelsea;  Chelsea  and  Revere.        PoUce  court 

of  Chelsea 
1855,26,51.  G.  S.  116,  §1.  1874,  201,  §1.  R.  L.  160,  §  2. 

155  The  municipal  court  of  the  Dorchester  district,  held  at  Dorchester  Municipal 

156  in  Boston;   ward  twenty-four  of  Boston  as  it  existed  on  February  first,  Dorchester 

157  eighteen  hundred  and  eighty-two.  i87o,  333,  §  1.  is74, 271,  §  3.  district. 

1875,  243,  §  4.  1876,  240,  §  7.  P.  S.  154,  §  42.  R.  L.  160,  §  4. 

158  The  East  Boston  district  court,   held  at  East  Boston  in  Boston;  East. Boston^ 

159  W^inthrop  and  wards  one  and  two  of  Boston  as  they  existed  on  March  i874, 271,  §  li. 

160  first,  eighteen  hundred  and  eighty-six.  i875, 243,  §  4. 

1876,  240,  §  2.  P.  S.  154,  §  42.  1886,  15,  I  2. 

1877,  165.  1882,  146.  R.  L.  160,  §  2. 


2348 


DISTRICT   COURTS. 


[Chap.  218. 


courto?Rox-        The  municipal  court  of  the  Roxbury  district,  held  at  Roxbury  in  161 

b^y  district     Boston;  wards  nineteen,  twenty,  twenty-one  and  twenty-two  of  Boston  162 

1875!  243!  §  4!    as  they  existed  on  February  first,  eighteen  hundred  and  eighty-two.  163 

1876,  240,  §  5;  242.  P.  S.  154,  |  42.  R.  L.  160,  §  4. 

™^tTsouth       The  municipal  court  of  the  South  Boston  district,  held  at  South  164 

?8°74°27i'tH'  I^oston  iu  Boston;    wards  thirteen,  fourteen  and  fifteen  of  Boston  as  165 

1875!  243',  §  4.    they  existed  on  February  first,  eighteen  hundred  and  eiglity-two.  166 

1876,  240,  §  4.  P.  S.  154,  §  42.  R.  L.  160,  §  4. 


Municipal 
court  of  West 
Roxbury 
district. 

1874,  271,  5  14. 

1875,  243,  I  4. 

1876,  240,  §  6. 
P.  S.  154,  §  42. 
1898,  478. 

R.  L.  160,  §  4. 
1911,  469.  §  5. 


The  municipal  court  of  the  West  Roxbiuy  chstrict,  held  at  West  167 

Roxbury  in  Boston;    ward  twenty-three  of  Boston  as  it  existed  on  Feb-  168 

ruary  first,  eighteen  hundred  and  eighty-two,  and  the  territory  com-  169 

prised  within  the  Hmits  of  the  former  town  of  Hyde  Park  which  was  170 

annexed  to  Boston  by  chapters  four  hundred  and  sixty-nine  and  five  171 

hundred  and  eighty-three  of  the  acts  of  nineteen  himdred  and  eleven.  172 


Worcester. 

worc'iter  The    Central    district    court    of    Worcester,    held    at    Worcester;  173 

G*l' 116^11    ^^'orcester,  Millbury,  Sutton,  Auburn,  Leicester,  Paxton,  West  Boylston,  174 
1872, 199!  §1.    Holden,  Shrewsbury,  Rutland,  Barre,  Princeton  and  Oakham.  175 

1902,186.  1904.259.  1910,258.  1917,302. 


First  northern 
Worcester. 
1884,215,  I  1. 
1907,  98. 
1917, 302. 

First  eastern 
Worcester. 
1872,  200,  §  1. 
1897,  401. 


The  first  district  coiut  of  northern  Worcester,  held  at  Athol  and  176 
Gardner;  Athol,  Gardner,  Petersham,  Phillipston,  Royalston,  Temple-  177 
ton,  !Hubbardston,  Dana  and  Westminster.  178 

Tlie  first  district  court  of  eastern  Worcester,  held  at  Westborough  179 
and  Grafton;  Westborough,  Grafton,  Southborough  and  Northborough.  180 

1902,  161. 

The  second  district  court  of  eastern  Worcester,   held  at   Clinton;  181 

182 


Second  cistern 
Worcester. 

1I96'  ?4o'  ^  *■    Clinton,  Berlin,  Bolton,  Boylston,  !Har^■ard,  Lancaster  and  Sterling. 

1S97,  401.  1902,  161. 


First  southern 
Worcester. 
1871.391,  §  1. 


Second  south- 
ern Worcester. 
1872,201.  §  1. 


Third  southern 
Worce.ster. 
1854,  160,  §  1. 

Western 
Worcester. 
1902.416, 
§§1,2. 
1917.  302. 
1920.  527. 


Police  court  of 
Fitchburg. 
1868,  124,  §  1. 
P.  S.  154,  §  1. 


District  coiu^ 
of  Leominster. 


District  court 
of  Winchendon. 


The  first  district  court  of  southern  Worcester,  held  at  Southbridge  183 
and  Webster;  Southbridge,  Webster,  Sturbridge,  Charlton,  Dudley  and  184 
Oxford.  185 

The  second  district  court  of  southern  Worcester,  held  at  Blackstone  and  186 
L'xbridge;  Blackstone,  Uxbridge,  Douglas,  Northbridge  and  !Mill\ille.       187 

1916,  Sp.  2S2,  §  6. 

The  third  district  court  of  southern  Worcester,  held  at  !Milford;  188 
Milford,  ]\Iendon,  I'pton  and  Hopedale.        g.  s.  116.  §  1.        is72, 152,  §  1.  189 

The  district  comt  of  western  Worcester,  held  at  East  Brookfield;  East  190 
Brookfield,  Brookfield,  Spencer,  North  Brookfield,  West  Brookfield,  191 
Warren,  !Hardwick  and  New  Braintree.  Said  court  may  adjourn  to  192 
any  towra  -n-ithin  its  district  other  than  East  Brookfield  whenever  the  193 
public  convenience  seems  to  the  presiding  justice  to  render  such  ad-  194 
journment  expedient.  195 


The  police  court  of  Fitchburg,  held  at  Fitchburg;    Fitchburg,  Ash-  196 
burnliam  and  Limenburg. 


R.  L.  160,  §  1.  1904.  259.  1910,  258. 

The  district  court  of  !Leoniinster,  held  at  Leominster;  !Leominster. 

1910,  207.  §§  1,  3. 


197 


198 


The  district  court  of  Winchendon,  held  at  Winchendon;  Winchendon.  199 

1904,  372,  §§  1,  3. 


CH-VP.   218.]  DISTRICT   COtTRTS.  2349 

1  Section  2.     The  municipal  courts  in  Boston  shall  have  concurrent  Concurrent 

2  jurisdiction  over  all  waters,  islands  and  places  not  included  in  the  dis-  Boston  munid- 

3  trict  of  any  one  of  said  courts  or  of  the  police  coiu-t  of  Chelsea,  and  within  wateS!"^'^  °^" 

4  the  jurisdiction  of  the  superior  court  for  SufFolk  county,  except  as  pro-  '/sm^'IVi!'^^  is. 

5  Aided  in  the  preceding  and  following  sections. 

p.  S.  154,  §44.  II.  L.  160,  §51. 

1  Section  3.     The  municipal  coiu-t  of  the  city  of  Boston,  the  municipal  dictTon^'ot^""^' 

2  com't  of  the  Charlestown  district  and  the  municipal  court  of  the  South  certain  courts 

3  Boston  district,  and  the  East  Boston  district  court,  shall  have  and  exer-  waters  and 

4  cise,  concurrently  with  each  other,  the  same  criminal  jurisdiction  as  said  Tsts,  53. 

5  courts  have  within  their  respective  districts  over  all  islands,  except  East  r8s^6,\5!'§^3'^' 

6  Boston,  and  waters,  except  so  much  of  the  Charles  river  basin  as  is  fgog;  HI]  1 1^' 

7  described  in  section  one,  ■nitliin  the  criminal  jurisdiction  of  the  superior 

8  court  for  Suffolk  county. 

1  Section  4.     District  courts  shall  be  coiuts  of  record.     They  shall  be  Courts  of 

2  courts  of  superior  and  general  jurisdiction  with  reference  to  all  cases  and  supTrfo^luris- 

3  matters  in  which  they  have  jurisdiction,  and  no  order,  decree,  judgment,  sJaV.""' 

4  sentence,  warrant,  writ  or  process  made,  issued  or  pronounced  by  them  }8|3, 179,  §  3. 

5  need  set  out  any  adjudication  or  circumstances  with  greater  particu-  pf%jolJ- 

6  larity  than  would  be  required  in  other  courts  of  superior  and  general  is93, 396,  §  ss. 

7  jurisdiction,  and  the  like  presumption  shall  be  made  in  favor  of  proceed-  r.  l!  leo,'  §  6. 

8  ings  of  such  courts  as  would  be  made  in  favor  of  proceedings  of  other  i9?i;473;| }; 

9  courts  of  superior  and  general  jurisdiction.     Each  district  court  shall  }!  Met^l'si.^' 

10  have  a  seal,  which  shall  be  in  the  custody  of  its  clerk,  and  shall  be  afiBxed  ^  Cush.  5S4. 

11  to  all  processes  issued  by  such  coiu-t  requiring  a  seal. 

1  Section  5.     Processes  issued  in  contempt  cases  may  be  served  by  any  service  of 

2  officer  qualified  to  serve  criminal  process.  tem^rcaleT"' 

R.  S.  85.  §33.  p.  S.  154,  §11;  1893,  396,  §  61.  2  Gray,  120,  410. 

G.  S.  120,  §  50.  155,  §  68.  R.  L.  160,  §  8. 

JUSTICES   AND   SPECIAL   JUSTICES. 

1  Section  6.     The  district  court  of  Nantucket  shall  consist  of  one  justices  and 

2  justice  and  one  special  justice.    The  central  district  court  of  Worcester  sfeg'^^J^t'^es- 

3  and  the  district  court  of  southern  Essex  shall  consist  of  one  justice  and  ^  s°n6',  §  3 

4  three  special  justices.    Each  of  the  otlier  district  courts,  except  the  mu-  J|^^'  124,  §  3. 

5  nicipal  court  of  the  city  of  Boston,  shall  consist  of  one  justice  and  two  isto!  201!  §  6- 

6  special  justices.  333!  §  sj 

7  In  the  district  court  of  Dukes  County,  special  justices  shall  be  paid  by  39i,'§'5.^'  ^  ^'   ' 

8  the  county  five  dollars  for  each  day's  ser%ice,  except  that  compensation  i99^'§'5f'2oo,' 

9  for  sitting  in  the  place  of  the  justice  in  excess  of  thirty  days  in  any  one  ^^^  |®^'  §  ^'■ 

10  year  shall  be  computed  as  hereinafter  proA-ided.     Except  as  hereinbefore  271^5^^7.^316 

11  pro\ided,  and  except  in  the  municipal  court  of  the  city  of  Boston,  special  i  6:'  337^'§  6. ' 

12  justices  of  district  courts,  and  of  the  Bcston  juvenile  court,  shall  be  paid  is??!  isg- 

13  by  the  county  for  each  day's  serAice  at  the  rate  by  the  day  of  the  salary  ?s79,^l67.^' 

14  of  the  justice  of  the  same  court.     Compensation  so  paid  for  ser\-ice  in  p^s^'i^m,' 

15  excess  of  thirty  days  in  any  one  year,  except  for  ser\-ices  in  holding  a  f|^'||o 

16  simultaneous  session,  shall  be  deducted  by  the  county  treasurer  from  Jssj'sm, 

17  the  salary  of  the  justice.  is94, 173,  §  2-  431,  §  1. 

R.  L.  IRQ.  §5  6, 69.  1905,339,5  2.  1911,473. 

1902,  309;  416,  §  3.  1906.  299,  |  2.  1917,  274,  §  2; 

1903,412,5  2.  1909,219.  2.S1,  §  2. 

1904,  372,  I  2.  1910,  207,  J  2.  1918, 245.  §  1. 


2350 


DISTRICT  COUBTS. 


[ClL^P.   218. 


of^oaths'""'""  Section  7.  Justices  and  special  justices  of  district  courts  may,  in  or 
c'.  s  120 S^M  °'^*  °^  court,  administer  oaths  in  all  cases  in  which  an  oath  is  required, 
p.s.  154,  §  11;  unless  other-wise  expressly  provided. 

1S93,  396,  §  60.  R.  L.  160,  §  7.  145  Mass.  225. 


155,  §  2. 


Clerks. 
1821,  109,  §  5. 
R.  S.  S7,  §  18. 
1838,  147,  §  2. 
1854,  335,  §  12. 
G.S.  116,  §§4, 
5,23. 
1866,  169. 
1877,210,  §  1. 
P.  S.  154,  §§  5, 
6,  27,  58. 
1893,  396, 
§§  3,  4,  8. 


Temporarj' 
clerks. 

R.  S.  87,  §  18. 
G.S.  116,  §  7. 
P.S.  154,  §  8. 
1888,  352,  §  1. 
1893,  396, 
§§  6,  67. 
1895,  245. 
R.  L.  160, 
§S  12,  70. 
16  Gray,  88. 
9  Allen,  488. 


CLERKS   AND    ASSISTANT   CLERKS,  ETC. 

Section  8.  Each  district  court,  except  the  district  courts  of  Nan- 
tucket and  Dukes  County,  shall  have  a  clerk,  who  shall  be  appointed  by 
the  governor,  with  the  advice  and  consent  of  the  council,  for  five  years. 
The  justices  of  the  district  courts  of  Nantucket  and  Dukes  County  shall 
have  and  exercise  all  the  powers  and  duties  of  clerks;  but  either  may  ap- 
point a  clerk,  to  be  paid  by  him  and  to  hold  office  during  his  pleasure,  for 
whose  official  acts  he  shall  be  responsible. 


R.  L.  160,  §§  9,  10. 

1902.  416,  §  3. 

1903,  412,  I  2. 


1905,  133;  192. 

1906,  194;  240; 
248;  351. 


1910,  207,  §  2. 
1912,412. 
1917,  102;  124. 


9  Gray,  3. 

4  Op.  A.  G.  638. 


Section  9.  In  case  of  the  absence,  death  or  removal  of  a  clerk  of  a 
district  court,  the  court  may  appoint  a  temporary  clerk,  to  act  until  the 
clerk  resumes  liis  duties  or  until  the  vacancy  is  filled.  A  temporary  clerk 
shall  be  paid  by  the  county  for  each  day's  service  an  amount  equal  to  the 
rate  by  the  day  of  the  salary  of  the  clerk;  but  compensation  so  paid  to 
a  temporary  clerk  for  service,  in  excess  of  thirty  days  in  any  one  year, 
shall  be  deducted  by  the  county  treasurer  from  the  salary  of  the  clerk. 

153  Mass.  211. 


Assistant 
clerks. 

1821,  109,  §  5. 
R.  S.  87, 
f§23,  24. 
G.S.  116,  §6 
1874,36,  §§  11. 
12-  154 
1876,  227,  §  3. 
P.s.  154,  §  7. 
1893,396,  ^  5. 
R.  L.  160,  §  11. 
1904,  453,  §  1. 
1908,289. 
1909,357. 
1912,672. 
1913,332,  §  1. 
1914,  604. 

1916,  195;  261. 

1917,  IM;  2,52. 
Ill  Mass.  420, 
422 

iSS'Mass.  159. 
224  Mass.  597. 
4  0p.  A.  G. 
294. 


Temporary 
assistant  clerks. 
1906,  256. 


Section  10.     The  clerk  of  a  district  court  may,  subject  to  the  approval  1 

of  the  justice,  appoint  one  or  more  assistant  clerks,  who  shall  be  removable  2 

at  his  pleasure  or  at  the  pleasure  of  the  court,  for  whose  official  acts  the  3 

clerk  shall  be  responsible,  who  shall  be  paid  by  him  miless  salaries  payable  4 

by  the  county  are  authorized  in  this  section  or  in  section  fifty-three.  5 

Any  such  assistant  clerk  may  be  a  woman.    Assistant  clerks  with  salaries  G 

payable  by  the  county  may  be  appointed  in  each  of  the  following  courts,  7 

namely,  the  central  district  court  of  northern  Essex,  the  municipal  court  8 

of  the  Charlestown  district,  the  district  court  of  western  Hampden,  and  9 

courts  the  judicial  districts  of  which  have,  according  to  the  national  or  10 

state  census  last  preceding,  a  population  of  sixty  thousand  or  more.  11 

Second  assistant  clerks  with  salaries  payable  by  the  county  may  be  ap-  12 

pointed  in  each  of  the  following  courts,  namely,  the  municipal  court  of  13 

the  Roxbury  district,  the  East  Boston  district  court  and  the  municipal  14 

court  of  the  Charlestown  district.  15 

Section  11.     In  case  of  the  absence,  death  or  removal  of  a  salaried  1 

assistant  clerk  of  a  district  court,  other  than  the  municipal  court  of  the  2 

city  of  Boston,  the  clerk,  subject  to  the  approval  of  the  justice,  may  ap-  3 

point  a  temporary  assistant  clerk,  to  act  until  such  assistant  clerk  re-  4 

sumes  his  duties  or  until  the  vacancy  is  filled.     A  temporary  assistant  clerk  5 

shall  be  paid  by  the  county  for  each  day's  service  an  amount  equal  to  the  6 

rate  by  the  day  of  the  salary  of  such  assistant  clerk;  but  compensation  so  7 

paid  to  a  temporary  assistant  clerk  for  service,  in  excess  of  twenty  days  8 

in  any  one  year,  shall  be  deducted  by  the  county  treasurer  from  the  salary  9 

of  such  assistant  clerk.  10 


be^worn'""  *°  Section  12.  The  clerks,  assistant  clerks,  temporary  clerks  and  tem-  1 
powera.'""'  porary  assistant  clerks  of  said  courts  shall  be  sworn.  They  or  one  of  2 
1821, 109,  §  5.    them  shall  attend  all  sessions  of  the  court  and  shall  keep  a  record  of  all    3 


Ch.\P.   218.]  DISTRICT   COURTS.  2351 

4  its  proceedings.    The  clerks  sliall  liave  tlie  care  and  custody  of  all  the  1S22, 12. 

5  records,  books  and  papers  appertaining  to,  or  filed  or  deposited  in,  their  ^i,!?^'''      '^' 

6  respective  offices.     A  clerk  paid  by  the  county  may  make  and  issue  Hlf  I,";  1 1\ 

7  writs  and  processes,  shall  make  returns  of  the  com-t,  tax  bills  of  costs  ilsa^fytis 

8  and  receive  fines,  forfeitures,  fees  and  costs  accruing  from  the  civil  and  Q^J'ijf'L^g 

9  criminal  business  of  the  court,  including  fees  for  blanks  and  copies.        23,28. 

p.  R.  154.  §§9,  33.  1918,  25T,  §  407.  1920.2. 

1893,  396.  §  8.  1919,  5.  153  Mass.  211. 

R.  L.  160,  §  13. 

MISCELLANEOUS  PROVISIONS. 

1  Section  13.     District  courts  may  destroy  complaints,  warrants,  docu- Destruction  of 

2  ments  and  other  papers  in  criminal  cases  filed  in  said  courts  as  completed  i9io.°28™'^° 

3  business  for  not  less  than  twenty  years,  except  dockets  and  record  books,  ^^^  ■  *  ■ » 

4  and  shall  enter  the  fact  of  such  destruction  upon  the  records  of  the  court. 

5  Thereafter  the  dockets  and  record  books  and  the  minutes  and  entries 

6  therein  shall  be  admissible  as  evidence  of  the  facts  stated  therein.    The 

7  records,  papers  and  documents  of  district  courts  relating  to  causes  com- 

8  pleted  more  than  twenty  years  may,  subject  to  the  approval  of  the 

9  supervisor  of  public  records,  be  stored  and  kept  in  fireproof  rooms, 

10  vaults  and  safes,  provided  by  the  county  commissioners  in  the  towns 

1 1  where  the  courts  are  respectively  situated,  or  in  the  county  court  houses. 

1  Section  14.     Clerks  and  assistant  clerks  of  district  courts  may  sign  Facsimile 

2  process  issued  by  the  said  courts,  and  court  records,  documents  or  other  permitted  in 

3  legal  papers  or  copies  thereof,  relating  to  criminal,  delinquent,  wayward  1917,  ee!^^' 

4  and  neglected  cases  made  or  issued  by  such  clerks  or  assistant  clerks  in  ^®^*'  *^' 

5  conformity  with  law,  except  search  warrants  and  process  authorizing 

6  arrests  or  commitments,  by  imprinting  thereon  a  facsimile  of  the  signa- 

7  ture  of  the  clerk  or  assistant  clerk;  and  such  facsimile  signatures  shall 

8  have  the  same  validity  as  their  written  signatures. 

1  Section  15.     Justices  of  district  courts  shall  prescribe  reasonable  office  hours 

2  daily  office  hours  for  the  clerks  of  their  respective  courts  during  which  isoa,  396,  §  s. 

3  the  offices  of  the  clerks  shall  be  open.     Such  hours  shall  be  fixed  with  r.  l!  Teo.  §  w. 

4  reference  to  the  business  of  said  courts  and  the  convenience  of  the  public  §\m.^^^' 

5  and  of  attorneys,  and  notice  thereof  shall  be  posted  in  a  conspicuous  place  Jggo!  2. 

6  in  each  of  said  offices.    Clerks  shall  also  keep  their  offices  open  whenever 

7  the  court  so  orders. 

1  Section  16.     The  clerk  of  a  district  court  or,  if  no  clerk  is  required  by  Bond  of  clerk 

2  law,  the  justice,  before  entering  upon  the  performance  of  his  official  1821,"  109,  §5. 

3  duties,  shall  give  bond  in  the  sum  of  one  thousand  dollars  to  the  comity  r*"|.'87",  §  19. 

4  treasurer,  with  sufficient  sureties  to  be  approved  by  a  justice  of  the  cf^I'mls.' 

5  superior  court,  conditioned  to  account  for  and  pay  over  as  and  when  re-  p^'^'i^^^j^'s^sg 

6  quired  by  law  all  fines,  forfeitures,  fees  and  other  money  received  by  him  is93.  swi,  57. 

7  in  the  exercise  of  his  office.     Failure  to  give  such  bond  shall  be  sufficient  153  Mass.' 211.' 

8  cause  for  his  removal. 

1  Section  17.     A  justice,  clerk  or  assistant  clerk  of  a  district  court  shall  erc'Totl^act 

2  not  be  retained  or  emploj-ed  as  attorney  in  an  action,  complaint  or  pro-  iJ-g"""""^  '° 

3  ceeding  pending  in  his  court,  or  which  had  been  examined  or  tried  therein;  }|i?' jL 

4  and  a  special  justice  shall  not  be  so  retained  or  employed  in  any  case  in  r."8.'87,  ' 

5  which  he  acts  or  has  acted  as  justice. 

1855,321.8  11.  G.S.  116,  |9.  1893,396,5  10. 

1857,  264,  §  4.  P.  S.  154,  §  10.  R.  L.  160,  |  16. 


2352 


DISTRICT   COURTS. 


[CH.A.P.   218. 


Justice,  clerk, 
etc.,  not  to 
receive  certain 
fees. 

1852.  159. 
1S5S.  10.3,  §  3. 
G.  S.  116,  §  34. 
1877,  210, 
§5  2,7. 
1879,  264. 
P.  S.  154, 
5§  65,  66. 
1893,  396.  §  11. 
R.  L.  160,  §  17. 


Section  18.     A  justice,  special  justice  acting  in  the  place  of  the  justice,  1 

clerk  or  assistant  clerk  of  a  district  court  shall  not  receive  any  fee  or  com-  2 

pensation  to  his  own  use,  other  than  his  regular  salary  or  allowance,  for  3 

making  complaints  or  issuing  in  any  capacity  warrants,  subpoenas  or  4 

other  criminal  processes  which  he  is  authorized  to  issue,  or  for  any  official  5 

services  performed  by  him  in  court.     A  clerk  or  assistant  clerk  shall  not  6 

receive,  in  addition  to  his  salary,  any  fee  or  compensation  for  making  out  7 

bail  papers,  or  for  admitting  a  prisoner  to  bail  while  the  court  is  in  session  8 

or  during  the  hours  when  his  office  is  required  to  be  open.  9 


Civil  juris- 
diction in 
general. 
1821,  109. 
R.  S.  87, 
§§  11.34. 
1852.  46. 
1857.  51. 
1887.  57. 
G.  S.  116, 
§§  10,  IS. 
1871,  144. 
1877,  210,  §  4. 
P.  S.  154.  §11; 
155,  §§  12,  13. 


CIVIL  JURISDICTION. 

Section  19.     District  courts  shall  have  original  jurisdiction  concur-  1 

rent  with  the  superior  court  of  actions  of  contract,  tort  or  reple\-in  2 

where  the  debt  or  damages  demanded  or  the  value  of  the  property  3 

alleged  to  be  detained  does  not  exceed  one  thousand  dollars,  or,  in  the  4 

mmiicipal  court  of  the  city  of  Boston,  two  thousand  dollars,  and  also  of  5 

actions  of  summary  process  under  chapter  two  hundred  and  thirty-nine,  6 

and  proceedings  under  section  forty-one  of  chapter  two  hundred  and  7 

thirtv-one.                           is93, 396,  §  12.                        is94, 431.  8 


R.  L.  IfiO,  §§  IS.  19. 
1918,257,  §5  409,410. 


1919,  5. 

1920,  2. 


1  Met.  148. 
164  Mass.  144. 


Scire  faci.as. 

1753-4,  18,  5  3. 

1783,  32,  §  9; 

42,  §  4. 

1803,  132,  §  1. 

R.  S.  85, 

§§  16-lS. 

G.  S.  120, 

§§  3-5. 

P.  S.  154,  §11; 

155.  §§  14-16. 

1893,  396, 
§§  14-16. 

1894,  431. 
R.  L.  160, 
§§  21-23. 


Section  20.  District  courts  may  issue  writs  of  scire  facias  against  1 
executors  and  administrators  upon  a  suggestion  of  waste  after  a  judgment  2 
against  them  and  also  against  bail  taken  in  a  civil  action  before  them,  3 
and  proceed  to  judgment  and  execution  as  the  superior  court  might  do  in  4 
like  cases.  Such  writs  shall  be  served  not  less  than  seven  days  before  the  5 
return  day,  which  shall  be  not  more  than  sixty  days  after  the  date  thereof.  6 
Said  com'ts  shall  have  jurisdiction  of  actions  upon  such  writs  although  7 
the  debt  and  costs  on  the  original  judgment  together  exceed  one  thousand  8 
dollars,  or,  in  the  municipal  court  of  the  city  of  Boston,  two  thousand  9 
dollars;  and  judgment  and  execution  may  be  awarded  by  the  court  for  10 
the  whole  amount  due  to  the  plaintiff  with  costs  of  the  new  action.  1 1 


Alternative 
procedure 
established  by 
rule  for  small 
civil  cases. 
1920,  553,  §  1. 


SlLiLL  CLAIMS  PROCEDURE. 

Section  21.     The  justices  or  a  majority  of  them  of  all  the  district 
courts,  except  the  municipal  court  of  the  city  of  Boston,  shall  make 


uniform  rules  applicable  to  said  courts,  and  the  justices  of  the  municipal 
com-t  of  the  city  of  Boston  shall  make  rules  applicable  to  that  court,  pro- 
viding for  a  simple,  informal  and  inexpensive  procedure,  hereinafter 
called  the  procedure,  for  the  determination,  according  to  the  rules  of 
substanti^•e  law,  of  claims  in  the  nature  of  contract  or  tort,  other  than 
slander  and  libel,  in  which  the  plaintiff  does  not  claim  as  debt  or  dam- 
ages more  than  thirty-fi^e  dollars,  and  for  a  review  of  judgments  upon 
such  claims  when  justice  so  requires.  The  procedure  shall  not  be  ex- 
cIusiAe,  but  shall  be  alternative  to  the  formal  procedure  for  causes  begun  1 1 
by  WTit.  12 


1 
2 
3 
4 
5 
6 
7 
8 
9 
10 


r92of5M?§  1.        Section  22.     The  procedure  shall  include  the  beginning  of  actions  1 

with  an  entry  fee  of  one  dollar  but  without  writ,  and  without  require-  2 

ment,  except  by  special  order  of  court,  of  other  pleading  than  a  statement  3 

to  the  clerk  or  an  assistant  clerk,  who  shall  reduce  the  same  to  concise  4 


ClL\P.   218.]  DISTRICT  COUKTS.  2353 

5  -ftTitten  form  in  a  docket  kept  for  the  purpose.     The  procedure  shall 

6  include  notice  by  registered  mail  instead  of  the  mode  of  serAice  hereto- 

7  fore  required,  and  shall  include  provisions  for  early  hearing.    The  pro- 

8  cediu"e  may  include  the  modification  of  any  or  all  rules  of  pleading  and 

9  practice,  anj-thing  contained  in  other  chapters,  sections  or  acts  notwith- 

10  standing,  and  may  include  a  stay  of  the  entry  of  judgment  or  of  the 

11  issue  of  execution.     The  rules  for  the  procedure  may  provide  for  the 

12  elimination  of  any  or  all  fees  and  costs,  and  that  costs  shall  be  in  the 

13  discretion  of  the  court.    In  causes  begun  under  the  procedure,  the  court 

14  may  on  application  for  cause  shown  issue  wTits  of  attachment  of  prop- 

15  erty  or  person  as  in  causes  begun  by  wTit. 

1  Section  23.    A  plaintiff  beginning  a  cause  under  the  procedure  shall  unf^Tremova/. 

2  be  deemed  to  have  waived  a  trial  by  jury  and  any  right  of  appeal  to  the  ll'S^^^^' 

3  superior  court  and  any  right  to  a  report  to  an  appellate  division;  but  if 

4  said  cause  shall  be  removed  to  the  superior  court  as  hereinafter  provided, 

5  the  plaintiff  shall  haA'c  the  same  right  to  claim  a  trial  by  jury  as  if  the 

6  cause  had  been  begun  in  the  superior  court.    No  other  party  to  a  cause 

7  imder  the  procedure  shall  be  entitled  to  an  appeal  or  report.     In  lieu 

8  thereof,  any  such  party  may,  prior  to  the  day  upon  wliich  he  is  notified  to 

9  appear,  file  in  the  court  where  the  cause  is  pending  a  claim  of  trial  by 

10  jury,  and  his  affidavit  that  there  are  questions  of  fact  in  the  cause  requir- 

1 1  ing  trial,  with  specifications  thereof,  and  that  such  trial  is  intended  in  good 

12  faith,  together  with  the  sum  of  three  dollars  for  the  entry  of  the  cause 

13  in  the  superior  court;  and  thereupon  the  clerk  shall  forthwith  transmit 

14  such  original  papers  or  attested  copies  thereof  as  the  rules  for  the  pro- 

15  cedure  may  proNade,  and  the  superior  court  may  try  the  cause  as  trans- 

16  mitted  or  may  require  pleadings  as  in  a  cause  begun  by  writ,  but  the 

17  cause  may  be  marked  for  trial  on  the  list  of  causes  advanced  for  speedy 

18  trial  by  jury.     Section  one  hundred  and  five  of  chapter  two  hundred 

19  and  thirty-one  shall  apply  in  all  district  courts  in  causes  begun  under  the 

20  procedure. 

1  Section  24.    The  coiu-t  may,  in  its  discretion,  transfer  a  cause  begun  Transfer  to 

2  under  the  procedure  to  the  regular  civil  docket  for  formal  hearing  and  dockS"^ 

3  determination  as  though  it  had  been  begun  by  vrrit,  and  may  impose  ^®^°'  ^^^'  ^  ■*■ 

4  terms  upon  such  transfer. 

1  Section  25.     In  any  cause  begun  by  wTit  which  might  have  been  Discretion  as 

2  begun  under  the  procedure,  the  rules  for  the  procedure  may  provide,  or  iglof^ss,  §  s. 

3  the  court  may  by  special  order  direct,  that  the  costs  to  be  recovered  by 

4  the  plaintiff,  if  he  prevails,  shall  be  eliminated  in  whole  or  in  part. 

criminal  jurisdiction. 

1  Section  26.     District  courts  shall  ha\-e  original  jurisdiction,  concur-  Jurisdiction 

2  rent  with  the  superior  court,  of  the  follow  ing  offences  committed  within  iom-sI^s.  §  c. 

3  their  respective  districts  or  otherwise  made  punishal)le  therein :  all  vio-  \rgl[  2I'.  1 2. 

4  lations  of  by-laws,  orders,  ordinances,  rules  and  regulations,  made  by  Js^iiioi). 

5  cities,  towns  and  public  officers,  all  misdemeanors,  except  conspiracies  and  J,;  ■"'^  i|-,  §  i^^ 

6  hbels,  all  felonies  punishable  by  imprisonment  in  the  state  prison  for  not  s'^Js  3  32; 

7  more  than  five  years,  the  crimes  mentioned  in  sections  eighteen  and  nine-  isii;.  52. 

8  teen  of  chapter  two  hundred  and  sixty-six,  and  the  crimes  of  forgery  of  mg',  211;  Iv! 


2354 


DISTRICT  COUKTS. 


[Ch.\p.  218. 


1853,  196, 

§  I^ 

1854,  277, 

§  2. 

1855,  135, 

&  o 

448.  §§  1, 

2." 

1857,  80; 

157.  §  1, 

1858,  45,  i 

M. 

a  promissory  note,  or  of  an  order  for  money  or  other  property,  and  of  ut-  9 
tering  as  true  such  a  forged  note  or  order,  knowing  the  same  to  be  forged,  10 
if  in  either  case  the  sum  of  money  or  the  value  of  the  property  named  in  11 
such  note  or  order  does  not  exceed  fifty  dollars.  12 


G.  s.  lie 


12-14; 


120,  §§  38,  40;  101,  §  85. 

1866,  279,  I  8. 

1874,  271,  §  5. 

1876,  174;  227,  §  1. 

1881.  189. 

P.  S.  1.54,  §§  11.  17-20, 

50;  155.  §1  46.  48; 

203,  §  103. 

1885,  149;  322. 

1887,  293. 


1893,  396.  §§24.34.30.40. 

1894,  431. 
1897,  180;  349. 

R.  L.  160,  §§24,26-31. 
1904,  282,  §  3. 

1909,  442. 
1911,  170,  5  1. 

1910.  174,  §2. 

II  Gray,  403. 
13  Allen,  552. 

III  Mass.  427. 


116  Mass.  349. 
138  Mass.  489. 

150  Mass.  63,  502. 

151  Mass.  60. 

152  Mass.  1. 
156  Mass.  487. 
203  Mass.  598. 
206  Mass.  417. 
210  Mass.  445. 

215  Mass.  209.  525. 

216  Mass.  480. 


po^"enai"e5.  SECTION  27.  They  may  impose  the  same  penalties  as  the  superior 
nssyli!!  1 '  ^°^^*  ^°^  ^'^  crimes  of  which  they  have  jiu-isdiction,  except  that  they 
i82i'  109  "  ™^y  "°*  impose  a  sentence  to  a  jail  or  house  of  correction  for  a  longer 
?4  ^.-.^^  1,'^'  term  than  two  years  or  to  the  state  prison  for  anv  term. 

87,  §§  3.  32;  ^  *  * 

126,  §  23.  1853.  196,  §  1. 

1854,  277,  I  2;  328. 

1855,  135,  I  2;  448,  §§  1.  2. 
1857,  80;  157,  §  1. 
G.  S.  116,  §§  12-14; 
120,  §  38. 


1871,  115. 
1874,  271,  §  5. 


1876,  174. 
1881,  189. 

P.  S.  164,  §§  11,  18,  19. 
50;  155,  §  40. 
1885,  149;  322. 
1887,293,  §2;  349. 
1893,390,  §§  34,  36-39. 
1894,  431;  432. 


1897,  180. 

R.  L.  160,  §§  24, 

26-30. 

1909,  442. 

1911,  176,  §  1. 

1918,  257,  §  420. 

1919,  5. 

1920,  2. 


Recognizances 

to  keep  the 

peace. 

R.  S.  85,  §  23, 

G.S.  120,  §  39. 

P.  S.  154,  §  11; 

155,  §  47. 

1893,  396,  §  41. 

1894.  431. 

R.  L.  100,  §  32. 


Section  28.     District  courts  may  require  persons  found  guilty  of  any  1 

crime  within  their  final  jurisdiction,  except  a  violation  of  by-laws,  orders,  2 

ordinances,  rules  and  regulations,   made  by  cities,  towns  and  public  3 

officers,  or  of  the  laws  and  regulations  relative  to  the  public  health  or  4 

relative  to  defective  liighways,  in  addition  to  the  punishment  prescribed  5 

by  law,  to  recognize  with  sureties,  in  a  reasonable  sum,  to  keep  the  6 

peace  or  be  of  good  beha\ior,  or  botli,  for  not  more  than  one  year,  and  7 

to  stand  committed  until  they  so  recognize.     Sections  thirteen,  sixteen  8 

and  seventeen  of  chapter  two  hundred  and   seventy-five  shall  apply  9 

to  recognizances  so  taken.  10 


Jurisdiction  of 
felonies  by 
juvenile 
offenders. 
1872,  358. 
1877,211,  §  0. 
1880,  183. 
P.  S.  154.  §  11; 
155.  §  49. 

1893.  369.  §  3.5. 

1894.  431. 

R.  L.  160.  §  25. 
127  Mass.  4.50. 


Binding  over 
to  superior 
court. 

1853.  196.  §  2. 
1855,  448,  §  2. 
1857,  157,  §  2. 
G.S.  116.  §  1.5. 
P.S.  154,  §21. 
1893,  396.  §  42. 
R.  L.  100, 
§§  33,  34. 
1918,  257, 
§411. 
1919.5. 
1920.  2. 
206  Mass.  417. 
216  Mass.  480. 


Section  29.     Except  as  provided  in  section  sixty,  they  shall  have  1 

jurisdiction,  as  provided  in  section  twenty-six,  of  felonies  not  punishable  2 

by  death  or  imprisonment  for  life  committed  by  juvenile  offenders  under  3 

seventeen;  and,  upon  their  conviction,  may  sentence  them  to  any  pun-  4 

ishment  authorized  for  such  crime,  except  imprisonment  in  the  state  5 

prison,  or  may  commit  them  to  any  institution  established  by  law  for  6 

the  reformation  of  juA'enile  offenders,  or  may  bind  them  over  for  trial  in  7 

the  superior  court.  8 

Section  30.     They  shall  commit  or  bind  over  for  trial  in  the  superior  1 

court  persons  brought  before  them  who  appear  to  be  guilty  of  crimes  not  2 

within  their  final  jurisdiction,  and  may  so  commit  or  bind  over  persons  3 

brought  before  them  who  appear  to  be  guilty  of  crimes  within  their  final  4 

jurisdiction.     In  such  cases  the  clerk  of  the  district  court  shall  transmit  5 

to  the  clerk  of  the  superior  court  a  cojjy  of  the  complaint  and  of  the  6 

record,  the  original  recognizances,  a  list  of  the  witnesses,  a  statement  of  7 

the  ex-penses  and  the  appearance  of  the  attorney  for  the  defendant,  if  any  8 

is  entered,  and  no  other  papers  need  be  transmitted.  9 


Delay  in 

executing 

sentence 

exceeding 

six  months. 

Appeal. 


Section  31 .  No  order  shall  be  made  for  the  commitment  of  a  person  to  1 
a  jail  or  house  of  correction  upon  a  sentence  of  more  than  six  months,  im-  2 
posed  by  a  district  court,  until  at  least  one  day  after  the  imposition  of    3 


CpUP.   218.]  DISTRICT  COURTS.  2355 

4  such  sentence.     Before  such  order  is  made,  he  shall  be  notified  of  his  right  isn,  i76, 1 2; 

5  of  appeal  to  the  superior  court,  and  he  may  exercise  such  right,  as  pro- 

6  vided  by  law,  until  such  order  is  made.    Tliis  section  shall  not  apply 

7  to  sentences  the  execution  of  which  is  suspended. 

1  Section  32.     District  courts  may  receive  complaints  and  issue  M-ar-  Complaints 

2  rants  and  other  processes  for  the  apprehension  of  persons  charged  with  R.s^sUfss! 

3  crime  and  found  witliin  tlieir  county,  or  who  after  committing  crime  all.'  ilo,'  ^  ^' 

4  therein  escape  therefrom,  returnable  before  a  court  or  trial  justice  of  fl/y'^u  § 4 

5  the  county  having  iiu-isdiction  of  the  trial  or  examination  of  the  person  F^-"  A'j.j  ii; 

n       T.  J         VI     J.I  •  150,  §§43,  44. 

0  charged  with  the  crime.  i893,  398,  §  42.  is94, 431. 

R.  L.  160.  §  33.  1918,257,5  411.  1919,5.  1920,2. 

1  Section  33.     A  clerk,  assistant  clerk,  temporary  clerk  or  temporary  cierk.  etc, 

2  assistant  clerk,  paid  by  the  county,  may  receive  complaints,  admimster  wwraSts^etc. 

3  to  complainants  the  oath  required  thereto,  and  issue  warrants,  search  a^l.'  ilo,  §  36. 

4  warrants  and  summonses,  returnable  as  required  when  such  processes  p^"'  155  I  g 

5  are  issued  by  said  courts.  isqs,  396,  §  44.  1894, 431. 

R.  L.  160,  5  36.  153  Mass.  159.  182  Mass.  339.  224  Mass.  597. 

1  Section  34.     Said  courts  may  dispense  with  the  issuing  of  a  warrant  if  ^nged^wfth' 

2  the  person  charged  with  a  crime  has  been  arrested  without  a  warrant  '"  certain 

C3.SCS, 

3  and  brought  before  the  court  or  admitted  to  bail;   but  in  such  case  the  isas.'sgs,  §  45. 

4  officer  making  the  arrest  shall  endorse  upon  the  complaint  a  statement  r.'l'.  leo,  §  37. 

5  of  his  doings. 

1  Section  35.    A  justice  or  special  justice  of  a  district  coiut,  or  a  justice  Justice,  etc.. 

2  of  the  peace  who  is  also  a  clerk  or  assistant  clerk  of  such  a  court,  may  at  w^^'rant's^etc., 

3  any  time  recei\-e  complaints  and  issue  warrants  and  summonses,  under  isM^wr's^M. 

4  his  own  hand  and  seal,  and  such  justice  or  special  justice  may  likewise  Jl^l'  \ll'  t  f 

5  issue  search  warrants,  retiu-nable  before  a  court  or  trial  justice  having  °2o^s3fi'''^  ^'^' 

6  jurisdiction  of  the  trial  or  examination  of  the  person  charged  with  the  i877, 211,  §  1. 

7  crime.  p.  s.  154,  §22;  155,  §2.  1893,  395,  §  43.         r.  l.  leo,  §  35;  lei,  §  5. 

3  Allen,  479.  119  Mass.  167.  126  Mass.  235.  145  Mass.  117. 

1  Section  36.     If,  Tvitliin  the  judicial  district  of  a  district  court,  there  justice  of 

2  is  a  town  in  which  neither  a  justice  nor  the  clerk  of  such  coiu-t  resides,  the  powe'rTo'Lue 

3  governor,  with  the  ad\-ice  and  consent  of  the  council,  may  from  time  to  J^^J'e'JJJin  """^ 

4  time,  upon  the  petition  of  the  aldermen,  or  the  selectmen,  designate  and  p^'S-fp- 

5  commission,  a  justice  of  the  peace  residing  in  such  town  to  exercise  the  iss*.  286. 

6  powers  given  to  certain  justices  of  the  peace  by  the  preceding  section  in  isos!  381! 

7  cases  to  be  brought  before  said  court,  and  to  take  bail  in  criminal  cases  §§'  s.'i.  '" 

8  arising  within  said  judicial  district.     The  governor,  with  the  advice  and  HI  HlH]  1^^' 

9  consent  of  the  council,  may  from  time  to  time  so  designate  a  justice  of  ^  '^p-  ^'  '^-  ^'®- 

10  the  peace  residing  in  Quincy,  to  exercise  the  powers  given  to  certain  jus- 

11  tices  of  the  peace  as  aforesaid  in  cases  to  be  brought  before  the  district 

12  court  of  East  Norfolk,  and  to  take  bail  in  criminal  cases  arising  witliin 

13  the  judicial  district  of  said  court. 

1  Section  37.     District  courts,  justices,  special  justices,  clerks,  assistant  Process  for 

2  clerks,  temporary  clerks  and  temporary  assistant  clerks  thereof,  trial  defendants  in 

3  justices,  and  justices  of  the  peace  designated  and  commissioned  under  jwl'ife  rases, 

4  the  preceding  section,  may  issue  summonses  and  other  processes  for  ee'rvice™ ""'' 

5  witnesses  in  criminal  cases,  and  such  processes  and  likewise  warrants  and  g13'iW'§^24 


2356 


DISTRICT  COURTS. 


[ClL\P.  218. 


1876,  94. 
P.  S.  151, 
§§28,31. 

1885,  141. 

1886,  247. 

1893,  396,  §  46. 

1894,  431. 

R.  L.  100,  §  38. 

1918,  257. 
§§  412,  413. 

1919,  5. 

1920,  2. 

137  Mass.  2.33. 
164  Mass.  209. 


other  processes  in  such  cases,  issued  by  said  courts  or  persons,  may  be  6 

directed  to  a  court  officer  or  probation  officer  of  the  coiu-t  issuing  the  7 

process,  or  either  specifically  or  in  general  terms  to  any  person  in  the  8 

commonwealth  qualified  to  serve  criminal  process,  and  any  such  process  9 

may  be  served  and  executed  in  any  part  of  the  commonwealth  by  the  10 

person  to  whom  it  is  delivered  for  that  piupose.     This  section  shall  apply  1 1 

to  summonses,  warrants  and  other  processes  for  parties  and  witnesses  in  12 

cases  of  wayward,  delinquent  or  neglected  children.  13 


Courts  always 
open,  sittings 
and  adjourn- 
ments. 
R.  S.  87, 
§§  42,  4.3. 
G.  S.  116,  §  20. 
1861,115. 
18G9,  385. 
P.  S.  154,  §  23. 
1893,  396,  §  54. 
1897,431. 
1898,  488. 
R.  L.  100,  §  39. 
152  Mass.  566. 
199  Mass.  44. 


SESSIONS  AND  PROCEEDINGS. 

Section  38.     District  courts  shall  always  be  open  and  business  may  be  1 

transacted  at  any  time,  except  as  provided  in  section  six  of  chapter  two  2 

hundred  and  twenty.     Sittings  of  the  com-ts  shall  be  held  in  the  court  3 

houses  or  other  places  provided  therefor  by  the  county,  at  the  times  and  4 

in  the  towns  fixed  by  law;  but  if  the  times  are  not  established  by  law  5 

they  shall  be  fixed  by  the  courts  by  general  rule.     Sittings  may  be  ad-  6 

journed  from  time  to  time  as  occasion  requires,  and  cases,  civil  or  criminal,  7 

may  be  continued  to  any  future  day  fixed  for  the  sitting  of  the  court,  and,  8 

except  as  otherwise  provided,  complaints  in  criminal  cases  may  be  placed  9 

on  file.  10 


Bookstand  Section  39.     Justiccs  and  clerks  of  district  courts,  except  the  mu- 

?s6i  17^'  ^  ^^'  iiicipal  court  of  the  city  of  Boston,  may  procure  all  law  books  relating  to 
p.  s.'i54,  §  24.  the  laws  of  the  commonwealth,  including  the  reports  of  the  supreme  ju- 
i89o;  440,  §  11.  dicial  court,  the  Massachusetts  digests,  all  blank  books,  blanks,  stationery 
1I93, 396,  §  1.  and  other  incidentals  required  by  said  courts  and  appro^-ed  by  the  jus- 
R^l'.  160,  § 40.  tices.  The  expenses  thereof  shall  be  certified  by  the  justices  monthly, 
1913, 471,  §  3.  ^j^(j  shall  be  transmitted  to  the  county  commissioners  who  shall  audit  the 
bills  therefor  and  order  pajonent  thereof  by  the  county. 


Who  may  hold 

court,  etc. 

R.  S.  87,  §  31, 

1848,  331,  §  3. 

1849,  86,  §  10; 
127,  §  8. 
1854,  34,  §  8. 

1856,  4. 

1857,  26,  §  2; 
294,  §  2. 

G.  S.  116.  §22. 
p.  S.  154,  §  25. 
1882,  43. 
1885,  132. 

1892,  268. 

1893,  396, 
§§55,63. 
R.  L.  160, 
§§41,44,50. 
1906,  166. 

1918,  257, 
§415. 

1919,  5. 

1920,  2. 

6  Gush.  333. 
14  Gray,  14, 
18,  19. 

7  Allen,  349. 
123  Mass.  525. 
143  Mass.  187. 
151  Mass.  380. 
155  Mass.  134. 
158  Mass.  168. 
184  Mass.  92. 


Section  40.  District  courts,  except  the  municipal  court  of  the  city  1 
of  Boston,  shall  be  held  by  the  respective  justices  thereof;  and,  upon  2 
request  of  the  justice,  either  special  justice  may  hold  the  court  and  have  3 
and  exercise  all  the  powers  and  duties  of  the  justice,  or  hold  a  second  or  4 
third  session  thereof,  and  two  or  more  simultaneous  sessions  may  be  held.  5 
In  case  of  a  vacancy  in  the  office  of  justice,  or  liis  illness,  absence  or  other  6 
disability,  the  special  justice  holding  the  senior  commission  shall,  if  no  7 
request  has  been  made  as  aforesaid,  ha\-e  and  exercise  all  the  powers  and  8 
duties  of  the  justice.  Upon  the  death,  resignation,  absence  or  disability  9 
of  the  justice  and  special  justices  of  a  district  court,  except  the  municipal  10 
court  of  the  city  of  Boston,  a  justice  or  special  justice  of  any  other  dis-  11 
trict  court,  at  the  request  of  the  clerk,  may  for  the  time  being  have  and  12 
exercise  all  the  powers  and  duties  of  the  justice.  Justices  and  special  13 
justices  of  district  courts,  except  the  municipal  court  of  the  city  of  Boston,  14 
may  perform  each  other's  duties  when  necessary  or  convenient.  When  a  15 
special  justice  holds  the  court  or  a  session  thereof  or  an  inquest,  or  16 
certifies  a  bill  of  costs  to  a  county,  city  or  town  treasurer,  that  fact,  17 
and  the  fact  which  gave  liim  jurisdiction,  shall  be  entered  upon  the  18 
general  records  of  the  couit,  but  need  not  be  stated  in  the  record  of  19 
any  case  heard  by  liim.  20 


dutiMlif"^  Section  41.     A  special  justice  of  a  district  court  shall  at  all  times  have     1 

i9i3'*2^9'''''^'^'    ^^^  exercise  all  the  powers  and  duties  of  a  justice  of  such  court,  so  far  as    2 

to  render  decisions,  make  orders,  and  perform  such  other  acts  as  he  may    3 


Chap.  218.]  district  courts.  2357 

4  deem  necessary  or  proper  in  connection  with  or  relating  to  matters  wliich 

5  have  been  heard  before  liim. 

1  Section  42.     If  no  justice  or  special  justice  is  present  at  the  time  and  ^hj.™?'™;."' 

2  place  appointed  for  holding  a  session  of  a  district  court,  the  sheriff  or  any  "cl*""' « 

3  of  his  deputies  or  the  clerk  may  adjourn  the  court  from  day  to  day  or  from  isas',  s^'e,',  §  sb. 

4  time  to  time,  gi^^ng  notice  thereof  as  circumstances  may  require.  ■■      . 

1  Section  43.     The  justices,  or  a  majority  of  them,  of  all  the  district  ^f°^^u™  '^"''^ 

2  courts,  except  the  municipal  court  of  the  city  of  Boston,  shall  from  time  g-  s.  iie,  5  23, 

3  to  time  make  and  promulgate  uniform  rules  regulating  the  time  for  the  isod,  359. 

T  COT      QOP      R   ETA 

4  entry  of  writs,  processes  and  appearances,  the  filing  of  answers  and  for  r.  l'.  leo  §4s. 

5  holding  trials  in  civil  actions,  and  the  practice  and  manner  of  conducting  j^ifi.^^'^' 

6  business  in  cases  which  are  not  expressly  pro\ided  for  bj^  law,  including  jgig  2 

7  juvenile  proceedings  and  those  relating  to  wayward,  deUnquent  and  neg- 

8  lected  children. 

1  Section  44.     Processes  issuing  from  district  courts  shall  be  under  the  Process,  formal 

2  seal  of  the  court,  signed  by  the  clerk  or  an  assistant  clerk  or  temporary  Torin'througt- 

3  clerk  or  temporary  assistant  clerk,  and  shall  bear  teste  of  the  justice,  or,  waidT™™' 

4  in  the  municipal  court  of  the  city  of  Boston,  the  chief  justice,  unless  he  R^l'gfg  17. 

5  is  a  party  or  unless  his  office  is  vacant,  and  in  such  cases  they  shall  bear  ^t-J  J,^. 

_  I.     1  •    1   •         •  I        1      1  1        1  ■  •      •  ,  •         1S55, 270,  §  5; 

0  teste  01  the  special  justice  who  holds  the  semor  commission  or  the  senior  *2s  5j. 

7  associate  justice.     The  process,  civil  or  criminal,  of  a  district  court  shall  g  s.'  iie,'  §  26; 

8  run  throughout  the  commonwealth  for  ser\'ice  in  any  case  or  proceeding  v.  s.  154,  §  30; 

9  within  its  jurisdiction.  isss,  415.  is93, 396,  §§  15, 64.  ^^^-  ^  '*■ 

1894,431.  1916.  174,  §  I.  135  Mass.  519. 

R.  L.  160,  §§  22,  46.  13  Gray,  74.  145  Mass.  117. 

1912,  649,  §  1.  14  Gray,  14,  18,  19.  158  Mass.  108. 

1  Section  45.     District  courts  have  the  same  authority  to  issue  com-  Depositions. 

2  missions  to  take  depositions  in  cases  pending  before  them  as  the  superior  p*'s.'i.54,'|ii; 

3  court  has  in  cases  pending  therein.  i893, 396,  §  65.         r.  l.  loo,  §  47.  ^^^'  ^  ''°- 

1  Section  46.    When  judgment  is  entered  by  a  district  court  upon  de-  Notice  of 

2  murrer,  or  upon  a  case  stated,  or  when  a  decision  is  rendered  in  an  action,  igis.'so!'  *'"■ 

3  except  in  open  court,  the  clerk  of  the  court  shall  forthwith  give  notice 

4  thereof  to  the  parties  or  to  their  attorneys. 

1  Section  47.     Clerks  of  district  courts,  except  the  municipal  court  of  Paj-ments 

^,.  «T-»  J'*  PI  1  111,1  a°*^  accounts 

2  the  City  of  Boston,  and  justices  or  such  courts  as  have  no  clerk,  shall,  on  t>y  cieriis. 

3  or  before  the  tenth  day  of  January,  April,  July  and  October,  in  every  §§38,39. 

4  year,  account  for  and  pay  over  to  the  county  treasurer  all  money  received  18,55!  26!  §  i. 

5  by  them  from  civil  business,  including  fees  for  blanks  and  copies,  and  to  g!''!.'  iit,'  ^  ^' 

6  city  and  town  treasurers  all  fines  and  forfeitures  received  by  them  payable  ig77%^io,  5  3. 

7  to  said  cities  or  towns,  and  render  to  said  treasurers  a  detailed  account  on  p*^?' "f  • 

8  oath  of  the  same.     Such  payments  shall  include  the  balances  due  and  ^L^i'?[i  ^.^v 

9  payable  at  the  end  of  the  quarter  last  preceding  the  day  of  pajTnent.  isssiisoUig, 

10  They  shall,  at  the  end  of  a  criminal  case,  pay  the  fees  and  expenses  of  issV,  415,  §  7. 

11  officers  entitled  thereto  from  the  funds  in  their  hands  payable  to  the  city  ri°44o?'  ^^^' 

12  or  town  liable  for  the  payment  of  such  fees  and  expenses,  if  they  haAe  ilo*"!, 313; 392. 

13  sufficient  funds  therefor,  and  all  such  fees  and  expenses  not  so  paid  shall  \l^f  f^}^'  1 1- 

14  be  certified  at  the  end  of  each  month  to  the  treasurer  of  the  city  or  town  isus!  204,'  1 1. 

15  liable  therefor,  who  shall  pay  them  to  the  parties  entitled  thereto.     They  li.  i.'.  ifio.  §  48: 

168,  §  7s. 


2358  DISTRICT  COURTS.  [Chap.  218. 

1904, 453,  §  5.    shall,  at  the  end  of  a  criminal  case  or  inquest,  pay  the  fees  of  witnesses  for  16 
2  0p'.  A.  G.     '  the  commonwealth  and  the  fees  and  expenses  of  officers  at  inquests  who  17 
^'  are  entitled  thereto,  from  the  funds  furnished  them  by  the  county  treas-  IS 

urer  for  that  purpose,  or  out  of  any  funds  which  may  be  paid  into  court  19 
and  are  payable  to  the  county.  They  shaU  be  allowed  for  the  amounts  20 
so  paid  in  their  settlement  with  the  county,  city  and  to^\-n  treasurers.  If  21 
they  do  not  have  in  their  hands  sufficient  funds  returnable  to  counties  22 
with  ^\]neh  to  pay  such  fees,  as  herein  pro\'ided,  they  may  make  written  2.3 
requisition  therefor  upon  the  comity  treasurer,  who  shall  pay  to  them  24 
not  more  than  one  hundred  dollars  each  in  any  one  month;  but  if  it  ap-  25 
pears  necessary  to  the  director  of  accounts,  he  may  approve  a  requisi-  26 
tion  for  not  more  than  two  hundred  dollars  in  any  one  month,  and,  upon  27 
receipt  of  a  requisition  so  approved,  the  county  treasurer  may  pay  to  28 
them  such  amount  as  may  be  called  for  therein.  They  shall  account  29 
therefor  in  their  regular  settlements  with  the  county  treasurer  and  shall  30 
be  liable  therefor  on  their  official  bonds.  A  clerk  or  justice  violating  any  31 
provision  of  this  section  shall  be  punished  by  a  fine  of  not  more  than  one  32 
hundred  dollars.  33 

ADDITIOX.^L  PROVISIONS  RELATIVE   TO   MUNICIPAL   COURTS. 

Dee/SSid"          Section  48.     In  cases  in  which  municipal  courts  in  Boston  or  the  1 

Ra'i,?i,  §51.  East  Boston  district  court  are  authorized  to  sentence  to  imprisonment  2 

«*3'5^'           ^^  ^^^  house  of  correction  or  county  jail,  or  to  commit  thereto  for  non-  3 

iIIr  536  5  9     payment  of  fine,  they  may  sentence  to  imprisonment  in  the  house  of  4 

R.  l'.  160,  §  53.  correction  at  Deer  island  or  commit  thereto.  5 

wSn'fle"^  Section  49.     In  the  municipal  courts  in  Boston,  except  the  mu-     1 

advances'and     nicipal  court  of  the  city  of  Boston,  and  in  the  East  Boston  district     2 

the?efor"°        court,  witness  fees  and  the  fees  and  expenses  of  officers  named  in     3 

1S98'  20^'  5       section  fifty  of  chapter  two  hundred  and  sixty-two  and  of  all  other    4 

R.  l!  160,  §  54.  persons  shall,  at  the  end  of  a  criminal  case  or  inquest  in  which  such     5 

fees  or  expenses  accrue,  be  paid  by  the  clerks  to  the  persons  entitled     6 

thereto.    If  they  do  not  have  sufficient  funds  in  their  hands  with  which     7 

to  make  such  pajments,  they  may  make  written  requisition  upon  the    8 

auditor  of  Boston,  and  thereupon  the  treasurer  of  said  city  shall  advance    9 

to  them  not  more  than  one  hundred  dollars  each  in  any  one  month,  for  10 

which  they  shall,  before  the  tenth  day  of  each  month,  account  to  said  11 

citv  and  for  which  thev  shall  be  liable  on  their  official  bonds.  12 


ADDITIONAL    PROVISIONS    RELATI\'E    TO    THE    MUNICIPAL    COURT    OF    THE 

CITY    OF    BOSTON. 

isli^io'g.  Section  50.     The  municipal  court  of  the  city  of  Boston  shall  con-  1 

G.  s.  n6,V35.   ^'^t  o^  *^'^^  chief  justice,  eight  associate  justices  and  four  special  justices.  2 

p^s^'ilf'fls    S^'^i  coiu-t  may  from  time  to  time  make  rules  for  regulating  the  practice  3 

isli' 419  5  u  ^^^  conducting  the  business  therein  in  all  cases  not  expressly  provided  4 

1894]  30S.'  for  by  law.  1S99, 313.  R.  L.  100,  §  55.  1912,  649,  §  11.  1913,430.  5 

^oSts%tc.         Section  51.    The  chief  justice,  or,  in  case  of  his  death,  illness,  ab-  1 

¥^'i5i'ii6    sence  or  incapacity,  the  senior  associate  justice,  shall  allow  bills  of  2 

Moi  179'  ^  ^^'  ^ostS'  accounts,  charges  and  expenses  which  arise  in  said  court,  and  3 

shall  certify  to  the  public  officer  by  whom  payable  such  amounts  so  4 

allowed.  5 


Ch.\.P.   218.]  DISTRICT  COURTS.  2359 

1  Section  52.     The  chief  justice  may  from  time  to  time  make  assign-  Assignment 

2  ments  for  the  attendance  of  a  justice  at  the  several  times  and  places  add.ltonli' 

3  appointed  for  holding  court.    The  chief  justice,  or,  in  case  of  his  death,  fp|c?afjus- 

4  illness,  absence  or  incapacity,  the  senior  associate  justice,  if  in  his  t'^s  assign- 

5  opmion  the  public  busmess  so  requires,  may  proyide  for  additional  pensation 

6  sessions  of  the  court.    A  special  justice  may  hold  any  such  additional  duties. 

7  session  at  the  request  of  the  chief  justice  or  senior  associate  as  aforesaid,  is79',2Go'.  §  9. 

8  or  a  regular  session  at  the  request  of  the  justice  whose  duty  it  may  be  Ks'.'St  §S7. 

9  to  hold  it,  or,  in  case  of  the  illness  or  absence  of  any  justice,  or  a  ille.'lli.^  ^' 

10  vacancy,  at  the  request  of  any  justice.    During  the  continuance  of  such  Jlgg'!™- 

1 1  requests,  or  during  such  illness,  absence  or  vacancy,  a  special  justice  R- l.'  leo,  §  57. 

12  shall  have  and  exercise  all  the  powers  and  duties  of  a  justice.    The  fact  i9iii256.' 

13  of  holding  court  and  the  fact  which  gave  him  jurisdiction  shall  be  en- 

14  tered  upon  the  general  records  of  the  court,  but  need  not  be  stated  in 

15  the  record  of  any  case  heard  by  him.    His  compensation  shall  be  twenty- 

16  five  dollars  for  each  day's  service;    and,  except  when  holding  an  ad- 

17  ditional  session  as  above  provided,  the  compensation  for  service  in 

18  excess  of  thirty  days  in  any  one  year  which  may  be  rendered  to  or 

19  for  any  one  justice  shall  be  deducted  by  the  treasurer  of  Suffolk  county 

20  from  the  salary  of  such  justice. 

1  Section  53.    There  shall  be  a  clerk  and  seven  assistant  clerks  of  said  ^Jgis^ift"^ 

2  court  for  criminal  business,  and  a  clerk  and  seven  assistant  clerks  of  j'|gjf  ;,79  .  ^ 

3  said  court  for  civil  business.    The  assistant  clerks  shall  be  appointed  bv  is74,' 271,' §  26. 

.         .  *'     1S79  257 

4  the  clerks,  respectively,  subject  to  the  approval  of  the  justices  or  a  §i;'303.' 

5  majority  of  them,  and  the  clerks  shall  be  responsible  for  the  doings  of  p.  s.' 154.  §58. 

6  their  assistants,  and  may  remove  them  at  pleasure.     The  salaries  of  Jivfi^l.'  ^  ^' 

7  said  assistant  clerks  shall  be  payable  by  the  county.  issq,  i70. 


1897,  183. 

1908,  418. 

1913,  446. 

R.  L.  IfiO.  §  58. 

1912,  649,  §  10. 

1916,  69,  §  1. 

1906,  468. 

1  Section  54.     In   addition  to  the  jurisdiction  otherwise  conferred,  ^Jtioi^^^' 

2  said  court  shall  have  jurisdiction  of  actions  of  contract,  tort  or  replevin,  i|'^J'  279,  §  9. 

3  within  the  debt  or  damages  or  value  prescribed  by  section  nineteen,  is74!27i,  §6. 

4  if  one  or  more  of  the  defendants,  or,  in  actions  by  trustee  process,  if  one  1877!  is?! 

5  or  more  of  the  persons  named  in  the  writ  as  trustees,  live  or  have  their  1804,431,  §  2.' 

6  usual  place  of  business  in  Suffolk  county,  or,  in  actions  brought  under  fgiVewili^ 

7  chapter  two  hundred  and  twenty-seven,  if  an  attachment  of  property  or 

8  personal  service  of  the  WTit  is  made  in  said  county. 

1  Section  55.     Said  court  may  secure  for  its  criminal  business  medical  ^Jm™Ld 

2  service,  and  the  equipment  necessary  therefor,  and  for  this  purpose  ^gy,^P'J'|^*- 

3  may  expend  annually  a  sum  not  exceeding  six  thousand  dollars,  which  1920!  sos. 

4  shall  be  paid  by  the  county  of  Suffolk  upon  vouchers  approved  by  the 

5  chief  justice. 

1  Section  56.     The  clerks  shall,  on  or  before  the  tenth  day  of  each  Accounts 

2  month,  account  for  and  pay  over  to  the  collector  of  Boston,  or  to  any  1887';  438,  §  5. 

3  other  officer  authorized  by  law  to  receiA'e  the  same,  the  balance  due  and  }ss9;4ls;  1 7^' 


SflO.  216. 

I  61; 


4  payable  at  the  end  of  the  preceding  month  of  all  money  received  by  }||jy  gj., 

5  them  paj-able  by  law  to  Suffolk  county,  and  shall  render  to  said  collector  J^^l' I'io  ^  ^ 

6  or  other  officer  a  detailed  account  thereof  under  oath.     Whoever  violates  les,  §  7s.' 

7  this  section  shall  be  punished  by  a  fine  of  not  more  than  one  hundred 

8  dollars. 


2360 


DISTRICT  COUKTS. 


[Chap.  218. 


Territorial 
jurisdiction. 
1906.  489. 
§§1.4. 


SPECIAL  PROVISIONS  RELATIVE  TO  THE  BOSTON  JUVENILE  COURT. 

Section  57.     The  Boston  juvenile  court,  established  by  section  one  of  1 

chapter  four  hundred  and  eighty-nine  of  the  acts  of  nineteen  hundred  2 

and  six,  shall  continue  to  have  and  exercise  jurisdiction  within  the  same  3 

territorial  limits  as  are  prescribed  for  the  criminal  jurisdiction  of  the  mu-  4 

nicipal  court  of  the  city  of  Boston.  5 


Justices  and 

clerk. 

1906,  489,  §  2. 


Section  58.  Said  court  shall  consist  of  one  justice  and  two  special  1 
justices.  It  shall  have  a  clerk,  who  shall  be  appointed  by  the  governor,  2 
with  the  advice  and  consent  of  the  council,  for  five  years.  3 


Powers, 
duties  and 
procedure. 
1906,  489, 
§§2-4. 


Section  59.    E.xcept  as  otherwise  provided  by  law,  said  court  shall  1 

have  and  exercise,  within  its  jurisdiction,  the  same  powers,  duties  and  2 

procedure  as  district  courts;   and  all  laws  relating  to  district  courts  or  3 

municipal  courts  in  the  county  of  Suffolk  or  officials  thereof  or  proceedings  4 

therein,  shall,  so  far  as  the  same  are  applicable,  apply  to  said  court.  5 


Jurisdiction 
over  offenders, 
etc.     Rules. 
1908,  489,  §  4. 
1907,  137. 


Section  60.     Within  the  territorial  limits  prescribed  in  section  fifty-  1 

seven,  said  court  shall  have  and  exercise  jurisdiction,  exclusive  of  the  mu-  2 

nicipal  court  of  the  city  of  Boston,  over  cases  of  juvenile  offenders  under  3 

seventeen  and  cases  of  neglected,  wayward  or  delinquent  cliildren.     Said  4 

com't  may  from  time  to  time  make  general  rules  in  reference  to,  and  pro-  5 

vide  forms  of,  procedure.  -  6 


(3: 


Appointment, 
tenure,  powers 
and  duties. 
1873,310. 
1S74,  169. 
1879,  257, 
265.  §  S. 
1881,261. 
P.  S.  154. 
§§  54,  63. 
1886,  15,  §  5. 
1893,  396,  §  62. 
1895,  457, 
§§  1,  2,  5. 
1898,  254. 


COURT  OFFICERS. 

Section  61 .     Court  officers  in  district  courts  shall  be  appointed  by  the  1 

justice  of  the  court,  or,  in  the  case  of  the  municipal  court  of  the  city  of  2 

Boston,  by  a  majority  of  the  justices,  and  may  likewise  be  removed  for  3 

any  cause  considered  by  such  justice  or  majority  to  be  sufficient,  and  4 

any  vacancy  caused  by  removal  or  otherwise  may  likewise  be  filled.  5 

Such  officers  shall  attend  the  sessions  of  the  court,  shall  preserve  order,  6 

and  may  serve  warrants,  mittimuses,  precepts,  orders  and  processes  of  7 

the  court.  8 

417. 


1900,  433, 
R.  L.  160, 
1909,  386. 


1912,  253;  497. 
1914,  700. 
1916,  69,  §  2. 


1918,  257, 

1919,  5. 

1920,  2. 


Number. 

1873,  310. 

1874.  169. 
1879,257,  §3; 
265,  §  8. 
1881,261. 

P.  S.  154, 
§§  54,  63. 
1886,  15,  §  S. 
1893,  396,  §  62. 
1895,457,  §  1. 
1898,  254. 
1900,  433,  §  2. 


Section  62.    In  the  municipal  court  of  the  city  of  Boston  the  court  1 

officers  appointed  shall  not  exceed  eight  for  criminal  business  and  four  2 

for  ci\'il  business;  in  the  municipal  court  of  the  Roxbury  district,  of  the  3 

South  Boston  district,  of  the  Charlestown  district,  the  East  Boston  dis-  4 

trict  coiu-t  and  the  district  court  of  East  Norfolk  two  court  officers  for  5 

each  court  may  be  appointed ;  and  in  each  of  the  other  district  courts  in  6 

the  commonwealth  one  court  officer  may  be  appointed.  7 


R.  L.  160,  §§  62-64. 

1909,  386. 

1912,  253,  I  1;  497, 


1914,  700. 
1916,  69,  §  2. 

1915,  257,  §  417. 


1919,  5. 

1920,  2. 


Uniforms  in 
Boston. 
1902,  368. 
1906,  355,  §  2. 
1914,  736. 


Section  63.     Coiut  officers  in  district  courts  in  Boston  shall,  while  1 

on  duty  in  said  courts,  wear  uniforms  to  be  approved  by  the  justices  of  2 

said  courts;  and  for  such  uniforms  each  officer  shall  be  allowed  and  paid  3 

annually  by  Suffolk  county,  in  addition  to  his  salary,  the  sum  of  one  4 

hundred  dollars  in  the  municipal  court  of  the  city  of  Boston  and  seventy-  5 

five  dollars  in  the  other  said  courts.  6 


CUAP.   218.]  DISTRICT   COURTS.  2361 

1  Section  64.     Each  court  officer  in  a  district  court  in  Boston  shall  b°",'^^„'° 

2  give  bond  for  the  faithful  performance  of  his  duties  in  the  sum  of  one  is^s.  ■is^.  5  4. 

1900  433    $  1 

3  thousand  dollars  payable  to  the  treasiu'cr  of  Suffolk  county,  with  suf-  R.  l!  leoi  §  es. 

4  ficient  sureties,  app^o^'ed  by  the  cliief  justice  or  the  justice  of  the  court, 

5  as  the  case  may  be. 

1  Section  65.     In  the  absence  of  a  court  officer,  or,  in  the  municipal  Jolll^foffiSrs. 

2  court  of  the  city  of  Boston,  whenever  a  majority  of  the  justices  tliink  \^°l-  H^-  .  gg 

3  the  business  requires,  a  temporary  court  officer  may  be  appointed  in  the  i^os,  i9i.' 

4  manner  provided  in  section  sixty-one,  who  shall  ha^'e  all  the  powers  and 

5  duties  of  a  court  officer.     Every  such  temporary  officer  shall  receive  for 

6  each  day's  service  an  amount  equal  to  the  rate  by  the  day  of  the  salary 

7  of  the  court  officer,  but  any  compensation  for  service  performed  for  an 

8  absent  court  officer  in  excess  of  fifteen  days  in  any  one  year  shall  be 

9  deducted  by  the  county  treasurer  from  the  salary  of  such  court  officer. 


MESSENGERS  .USTD  INTERPRETERS. 

1  Section  66.     There  shall  be  a  messenger  of  the  municipal  court  of  the  Messenger  of 

2  city  of  Boston,  appointed  by  a  majority  of  the  justices.  p^f court""""' 

1906,  192. 

1  Section  67.     The  justices  of  the  municipal  coiut  of  the  city  of  Boston  interpreters  in 

2  may  appoint  such  official  interpreters  as  they  may  deem  necessary  for  p°f court"'""'" 

3  the  criminal  and,  upon  the  acceptance  of  this  section  by  the  city  council  \l\l[  109.'  ^  ^' 

4  of  Boston,  ■nitli  the  approval  of  the  mayor,  for  the  civil  sessions  of  the 

5  court,  and  may  fix  their  compensation.    The  interpreters  shall  hold  their 

6  positions  at  the  pleasure  of  the  court  and  shall  render  such  additional 

7  service  as  the  chief  justice  may  require.    Said  justices  shall  forthwith 

8  discharge  any  such  interpreter  who  shall  be  found  by  them  to  have  re- 

9  quested  or  received,  directly  or  indirectly,  any  gratuity,  bonus  or  fee  in 

10  connection  with  any  criminal  or,  after  the  acceptance  of  this  section, 

11  any  civil  case  pending  or  in  course  of  preparation  for  presentation  to 

12  any  court.    Reasonable  compensation  to  other  interpreters  niay  be  al- 

13  lowed  when  the  serA-ices  of  the  official  interpreter  are  not  a^'ailable. 

1  Section  68.    The  justice  of  the  East  Boston  district  court  may  ap-  interpreter  in 

2  point  an  Italian  interpreter  for  that  court,  and  may  fix  his  compensation,  district°court. 

3  which  shall  not  exceed  twelve  hundred  dollars  annually.  ^^'°'  ^^' 


clerical  assistance. 

1  Section  69.    Except  as  otherwise  provided  in  sections  seventy  and  ^'^gjance  to 

2  seventy-two,  clerks  of  the  following  district  courts  shall  severally  be  al-  certain  clerks. 

*  ~  *'  Sgg  also 

3  lowed  annually  for  extra  clerical  assistance  not  more  than  the  following  section  73. 

4  amounts,  payable  monthly  by  the  county  to  the  persons  employed  to 

5  render  it:    • 

6  Police  court  of  Chelsea,  twelve  hundred  dollars.  }^°|'  |5g 

7  Second  district  court  of  Bristol,  eight  hundred  dollars.  isso,  62. 

190S351.  K.L.1G0,§67. 

8  East  Boston  district  court,  eight  hundred  dollars.  iDo?;  323; 

1911,454. 


2362 


DISTRICT  COURTS. 


[Chap.  218. 


1879,  257, 

§§1,2. 

P.  S.  154,  §  SS. 

1883,  47. 


1897,397,  §  1. 
R.  L.  160,  §  67. 

Same  subject. 
See  also 
section  73. 


Municipal  court  of  the  city  of  Boston,  for  criminal  business,  forty-     9 
four  hundred  dollars;  for  civil  business,  forty-two  hundred  dollars.  10 

1906,  449,  §§  2,  3. 


1909,  217. 

1910,  224. 
1910,  279. 


1906,  195. 
1908,  348. 


1899,  353. 

R.  L.  160.  §  67. 

1909,  434. 

1908,  395. 
1920,  282. 

1908,  475. 
1919,  127. 

1909,  364. 
1889,  206. 

R.  L.  160,  §  67. 
1908,  4S8. 


Clerical  assist- 
ance to  clerk 
of  central 
Worcester. 
1888.  184. 
1895,  260. 
1901,336. 
R.  L.  160,  §  67 


Clerical  assist- 
ance to  clerks 
of  Boston 
municipal 
court. 
1916,  71. 


ISSS,  419,  §  13. 
1893,  371. 


1895,  125. 

R.  L.  160,  I  67. 


]\Iunicipal  court  of  the  Dorchester  district,  two  hundred  dollars. 

Section  70.  Clerks  of  the  following  district  courts  shall  severally 
be  allowed  annually  for  extra  clerical  assistance,  not  more  than  the 
following  amounts,  payable  monthly  by  the  county  to  the  persons  who 
are  employed  to  render  it,  on  the  certificate  of  the  justice,  or  in  the 
municipal  court  of  the  city  of  Boston,  a  majority  of  the  justices,  that 
such  assistance  was  rendered  and  was  necessary: 

Police  court  of  Newton,  six  hundred  dollars. 

District  court  of  Hampshire,  five  hundred  dollars. 

First  district  court  of  eastern  IMiddlesex,  seven  hundred  and  twenty 
dollars. 

Second  district  court  of  eastern  Middlesex,  five  hundred  dollars. 

1913,  339. 

Municipal  court  of  the  city  of  Boston,  for  civil  business,  four  thousand  12 

dollars,  exclusive  of  the  allowance  under  the  preceding  section.    1912, 499.  13 

Municipal  court  of  the  West  Roxbury  district,  one  thousand  dollars.  14 

]\Iunicipal  court  of  the  Roxbury  district,  one  thousand  dollars.  15 

Municipal  court  of  the  Brighton  district,  two  hundred  dollars.  16 

INIunicipal  court  of  the  Charlestown  district,  five  hundred  dollars.  17 

Boston  juvenile  court,  nine  hundred  dollars.  18 


11 

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 


Section  71.  The  clerk  of  the  central  district  court  of  Worcester 
shall  be  allowed  for  extra  clerical  assistance,  upon  the  certificate  of  the 
justice  and  the  clerk  that  the  work  was  actually  performed  and  was 
necessary,  with  the  time  occupied  in  its  performance  and  the  names 
of  the  persons  by  whom  it  was  performed,  and  subject  to  the  approval 
of  the  county  commissioners,  not  more  than  twelve  hundred  dollars 
annually  payable  monthly  to  the  persons  rendering  such  assistance. 

Section  72.  The  clerks  of  the  municipal  court  of  the  city  of  Boston 
for  civil  and  criminal  business  may  each  expend  for  clerical  assistance, 
in  addition  to  the  sums  allowed  by  sections  sixty-nine  and  seventy, 
such  amounts  as  a  majority  of  the  justices  may  from  time  to  time 
approve;  but  no  such  amount  shall  be  allowed  unless  approved  by  the 
officers  having  in  Boston  the  powers  of  county  commissioners. 


clerical  assist- 
ance outside 
of  Boston. 

1888.  246. 

1889,  62. 

1897,  263. 

1898,  286;  331. 
1900,419,  §  2. 
1901.  295. 

R.  L.  160,  §  07. 
1904,331. 
1906,  196; 
197;    228;  289. 
1909,365:366; 
368. 

1910,253. 
1912,315;  330. 
1914,  690. 
1919,  219. 


Section  73.  Except  in  Boston,  county  commissioners  may  expend  1 
for  extra  clerical  assistance  in  district  courts  within  their  county,  not  2 
more  than  one  thousand  dollars  for  each  court  annually,  except  the  3 
police  court  of  Lowell,  and  not  more  than  eighteen  hundred  dollars  4 
for  the  police  court  of  Lowell  annually.  5 

As  to  courts  for  which  pro\'ision  is  made  by  sections  sixty-nine  and  6 
seventy,  tliis  section  shall  apply  only  to  the  excess  which  it  permits  7 
above  the  sums  certified  under  said  sections.  8 

In  addition  to  the  sums  allowed  by  this  and  the  four  preceding  sec-  9 
tions,  sufficient  sums  shall  be  allowed  to  comply  with  section  one  of  10 
chapter  two  hundred  and  sixty  of  the  General  Acts  of  nineteen  hundred  1 1 
and  eighteen,  and  -with  chapter  two  hundred  and  seventy-six  of  the  12 
General  Acts  of  nineteen  hundred  and  nineteen.  13 


Chap.  218.]  district  courts.  2363 


SALARIES. 

1  Section  74.     Salaries  in  district  courts  shall  be  paid  in  monthly  Monthly 

2  instalments  by  the  respective  counties  where  such  courts  are  established.  istt^IIo,'  §  2. 

p.  S.  154,  §64.  1902,  410.  §3.        1906.  33.5,  §  1.       1918,  227,  §§  3,  4. 

R.  L.  100,  §  67.         1905,  452.  1913,  4SS.  1919,  362,  §  6. 

1  Section  75.     The  salary  of  the  chief  justice  of  the  municipal  court  Salaries  in 

2  of  the  city  of  Boston  shall  be  eighty-five  hundred  dollars,  and  the  sal-  ipai  court. 

3  ary  of  each  of  the  associate  justices  shall  be  eight  thousand  dollars;  pro-  §§"4,'s.   ' 

4  vided,  that  any  cliief  justice  or  associate  justice  appointed  before  June  Ǥf6^2s. 

5  fourth,  nineteen  hundred  and  twenty,  who  has  not  accepted  the  increase  igpf;  I'g;  1 1.^' 

6  in  salary  provided  by  chapter  six  hundred  and  fourteen  of  the  acts  of  |?^'''  ^^^'  ^  *>■ 

7  nineteen  hundred  and  twenty  shall  receive  annually  two  thousand  dollars  }|i?'|^; 

8  less  than  the  salaries  above  provided  for.    The  salaries  of  the  clerks  and  iha.  257';  265! 

9  assistant  clerks  of  said  court,  for  ci\il  and  for  criminal  business,  shall  p. s.'isi, § 64. 

10  be  as  follows:  clerks,  five  thousand  dollars  each;  first  assistant  clerks,  245!''§*i. 

11  tliirty-five  hundred  dollars  each;    second  assistant  clerks,  three  thou-  Iff ^'§1^2^' 

12  sand  dollars  each;   tliird  and  fourth  assistant  clerks,  twenty-nine  hun-  {Hy'Jgg' 

1.3  dred  dollars  each;  fifth,  sixth  and  seventh  assistant  clerks,  twenty-four  isss,  195;  419, 

14  hundred  dollars  each.  iss9, 39;  143; 

15  The  salary  of  the  messenger  of  said  court  shall  be  twenty-six  hundred  is92, 58. 

lr    J„n„»„  "  o  V  1893,479. 

lb  dollars.  isos,  457,  §  3. 

17  The  salary  of  each  of  the  court  officers  in  attendance  at  the  sessions  Jlg^;  Hf 

18  of  said  court  shall  be  twenty-four  hundred  and  eighty-four  dollars.  J^.^l.  leo,  §  07. 

1905,452.  1912,649,110.  1917,262. 

1906.  192;  355,  §§  1.3;  1913,446;  488;  726;  736.  1918,  195;  227;  260,  §  1;287,  |  1. 

449,  §  1;  450;  468.  1914,  666.  1919,  264;  276;  328;  329. 

1908,418.  1916,  69,  §1.  1920,  473;  491;  492;  496;  614. 

1  Section  76.     The  salarv  of  the  justice  of  the  Boston  juvenile  court  Saiai-ies  in 

*"  "  \  lioston  juvenile 

2  shall  be  four  thousand  dollars,  and  that  of  the  clerk  of  said  court  three  court. 

3  thousand  dollars.  i906. 4S9,  §  3.  1918,  i78.  i9i9. 255. 

1  Section  77.     The  salaries  of  the  justices  of  the  district  courts  of  fyj^eel  in 

2  Dukes  County  and  of  Nantucket  shall  be  one  thousand  dollars  each.         gu^es  and 

•^  Nantucket. 

1898,  287,  §  2.  1904,  453,  5  1.  1919,  362,  §  5. 

R.  L.  160,  §67.         1918,  245,  §  1;  260.  §  2. 

1  Section  78.     The  annual  salaries  of  the  justices  of  district  courts,  classified 

2  except  as  provided  in  the  three  preceding  sections,  shall  be  determined  justices'. 

3  by  the  population  of  their  respective  judicial  districts  as  ascertained  by  iset.  hi       ' 

4  the  last  preceding  national  or  state  census,  as  follows:  ism,  i27;256. 

t3       I  .•         cT^-  .  •  i  =1  1866!  298,' §  9.' 

Population  of  District.  Salary.   i867  316  I  6 

Under  5,000, Sl,200  ises' 124.' 

5,000  to      6,000, 1,300  f»,b  359- 

6,000  to      7,000, 1.400  416 '§6.  ■ 

7,000  to      8,000, 1,500  ■^■^'d-'  ^ "' 

8,000  to     9,000 1,600  .ml  3. 

9,000  to      11,000, 1,700  376   391    §5' 

11,000  to      13,000, 1,800   1872.77;   108: 

13,000  to  15,000, 1,900  iqV§5"'2oo 

15,000  to  17,000, 2,000  §5;' 201,  §5;' 

17,000  to  19,000 2,100f5.'2V7i5- 

19,000  to  22,000, 2,200is9'§2.      ' 

22,000  to  25,000, 2,300  is'l'i  171  ' 

25,000  to  28,000, 2,400  iso.M;  201. 

28,000  to  31,000, 2,500  l-is  51:  I71 

31,000  to  .34,000, 2,600  §§  17  18;     • 

34,000  to  38,000, 2,700  §  20-  315  5  s- 

38,000  to  42,000, 2,800  sic'S  O; '337,' 


2364 


DISTRICT   COURTS. 


[ClL\P.  218. 


§6;  33S;  350, 
I  18:  304; 
392,  §  6. 

1876,  195,  §  4. 

1877,  188; 
210,  §  2. 
1879,201:  219, 
§  1;  220;  232; 
233,  «  1,2: 
234;  247;  248, 
§  1;265, 

«  3-6, 

1880,  226, 

1881,  128,  §  4; 
245:  246;  251: 
259;  290. 

P.  S.  154,  §  04. 
1882,227,  §  2; 
233,  §  6; 
245,  §  1. 
1883,  76,  §  1 : 
111. 

1884,208:211; 
215,  §4;  231. 
1885,49;  79, 
§  1;  155.  §3. 
1886,  15,  §  6; 
123;  151;  154; 
166;  190,  §2; 
307. 

1887,61,  §  1: 
171;  180:  190. 
1888,50;  110: 
173:  193,  §4; 
234 

1889,  12;  54; 
97:  130;  158: 
198;  217;  227; 
242:201;  263; 
281. 

1890,93;  131; 
177,  §3:  238. 
1891,  108; 
160-162; 
273,  §  2. 


Population  of  District.  Salary. 

42,000  to  46,000, $2,900 

46,000  to  50,000, 3,000 

50,000  to  54,000, 3,100 

54,000  to  59,000, 3,200 

59,000  to  64,000, 3,300 

64,000  to  69,000, 3,400 

69,000  to  74,000, 3,500 

74,000  to  79,000, 3,600 

79,000  to  85,000, 3,700 

85,000  to  91,000, ■   .   .   .  3,800 

91,000  to  97,000, 3,900 

97,000  to  103,000, 4,000 

103,000  to  109,000, 4,100 

109,000  to  116,000, 4,200 

116,000  to  123,000, 4,300 

123,000  to  130,000, 4,400 

130,000  to  137,000, 4,.500 

137,000  to  144,000, .  4,600 

144,000  to  151,000, 4,700 

151,000  to  159,000, 4,800 

159,000  to  167,000, 4,900 

167,000  to  175,000, 5,000 

175,000  to  183,000, 5,100 

183,000  to  192,000 5,200 

192,000  to  201,000, 6,300 

201,000  to  210,000, 5,400 

210,000  to  219,000 5,500 

219,000  to  228,000, 5,600 

228,000  and  over, 5,700 

And  $100  additional  for  each  10,000  population  above  228,000. 

1892,93:100.  1901,4,57.  1911,414,  §2. 

1893,  479.  H.  L.  160,  5  67.  1912,  503;  604;  660;  672. 

1894,321:373:470.  1902,  320:  360,  §  1;  1913,  414;  748. 

1895,176,12.  378:416,  §3.  1914,  509,  §  1;  532, 

1896,  353,  §2.  1903,  214,  §  2;  412,  §  2.        §  2;  547;  686. 

1897,318:324:325;  1904,  372;  453,  §§  1, 2,  4.      1915,286. 

356;  358:  359:  390.  1905,  165:  339;  443.  1916,  261;  263. 

1898,  216;  358;  362;  372;      1906,  299,  §  2;  325.  1917,203:319:328; 
388;  429;  460;  478,  §  2.       1907,  128.                 330,  §  1:  333. 

1899,  314;  315;  339;  391,  §  2.   1908,323.  1918,  173;  208;  260,  §  1. 

1900,  229;  265;  268;         1910,  501.  1919,  362,  |§  1,  5,  6. 
384;  400,  §  6. 


Same,  clerks 

and  assistant 

clerks. 

G.  S.  116,  §  33. 

1862,  92. 

1866,  298,  §  9. 

1867,  316,  §  6. 
1869,359; 
410,  §  (). 
1870,  201,  §  6. 
1871,88,  §  2; 
314;  326; 
349;  376. 
1872,141;  159; 
163,  §  3;  199, 
§7;  233,  §4; 
289,  §  4. 


Section  79.     Except  as  proAaded  in  the  following  section,  in  courts  1 

in  which  the  salaries  of  justices  are  fixed  by  the  preceding  section,  the  2 

salaries  of  clerks  shall  be  equal  to  seventy-fi^'e  per  cent  of  the  salaries  3 

established  for  the  justices  of  their  respective  courts;   and  the  salaries  4 

of  assistant  clerks,  other  than  second  assistant  clerks,  shall  be  equal  to  5 

seventy-five  per  cent,  and  the  salaries  of  second  assistant  clerks  shall  be  6 

equal  to  sixty  per  cent,  of  the  salaries  of  the  clerks  of  their  respective  7 

courts.                          1873,  IS;  363,  §  3.  8 


1874,  35,  §  2;  75:  123;  126; 
154,  §  2;  180,  §  4;  201,  §  5; 
207,  §  2;  235,  |  2;  271, 

§§  18,  19;  281,  §  1;  293,  §  20; 
316,  «3:  337,  §6;  338: 
350,  §  18:  364;  392,  §  6. 

1875,  182. 

1876,  195,  §  4;  198,  §  1. 

1877,  148;  210,  §2;  212,  §  2. 
1879,201;  219,  §  2;  232, 

§  1;  233:  234,  §§  1-4;  247; 
248,  §2;  257;  265,  §§  3-.5. 

1880,  226. 

1881,  148,  §  3;  247-251;  290. 
P.  S.  154,  §  64. 

1882,63;  87;  176,  §3: 
233,  §  6;  245,  §  2. 
1883,  53;  57;  97,  §  3. 
1884,65;  197;  215,  §  4;  231. 

1885,  79,  §  3;  155,  §3; 
ISO;  286. 

1886,  15,  §  6;  106;  124;  155: 
156;  158;  165;  167;  190,  §2; 
307,  §2;  333,  §2. 


1887,61;  117;  174;  175; 
208;  227;  265,  §  2; 
274,  §2:318;  327. 
1888,55:  60,  §  2;  88; 
89;  214;  235. 
1SS9,  19;  28;  39;  41;  S3; 
92;  137;  152,  §  2;  218; 
239;  261;  277:  289. 

1891,  71;  7S;  107;  190; 
273,  §  2. 

1892,  93. 

1893,  479. 

1894,65,  §2:330;  363, 
§  2;  374;  379;  470. 

1895,  170,  §  2;  600. 

1896,  337;  353,  §  2. 
1S97,  200,  §  2;  322;  422. 
I.S'.IS,  ;ili'.i;  382;  460;  478,  §  2. 
l.s'.i'.i,  1.->1:  204,  §  2:217; 
2;i4:  297:  315;  391,  §  2. 

1900,  138,  §  1:320;  330; 
332:400,  §  0;419,  §  1. 

1901,  362;  372;  392;  415;  41S. 


R.  L.  160,  §  67. 
1902,299;  356;  360,  §  2; 
378:416,  §3. 
1903,  214,  §  2;  412,  §  2. 
1904,453,  §§  1,2,4. 

1905,  165;  192;  339;  443. 

1906,  228;  240;  248; 
325;  361. 

1907,  128. 

1908,  323. 

1909,  357. 

1910,  601. 

1911,  414,  §  2. 

1912,  563:660:672. 
1913,332,  §  2;  414;  483;  748. 
1914,  .509,  §2;  532, 

§2;  604. 

1916,  261;  262. 

1917,  102;  124;  154;  252;  291; 
319'  340 

1918,  173:  178;  211;  260,  §  1. 

1919,  ,362,  §  2. 
230  Mass.  236. 


Chap.  218.]  district  courts.  2365 

1  Section  SO.    The  salaries  of  the  assistant  clerk  and  second  assistant  Salaries  of 

2  clerk  of  the  municipal  court  of  the  Charlestown  district  shall  be  re-  irmumcipai 

3  spectively  equal  to  seventy-fi^•e  per  cent  and  sixty  per  cent  of  the  salary  cTari°stown 

4  of  the  clerk  thereof  holding  ofBce  on  June  fourth,  nineteen  hundred  and  i9i'2!'^672. 

5  twenty.  1916,  195.  1917, 330,  1 2.  1919,  362,  §  2.  1920, 615. 

1  Section  81.     The  justices,  special  justices,  clerks  and  assistant  clerks  TraveUng 

2  of  district  courts,  when  sessions  are  held  in  more  than  one  town,  shall  ilsl^fw;  205. 
.3  each  be  allowed  by  the  respective  comities  where  said  courts  are  estab-  JIgg'  II3  1 2. 

4  lished,  subject  to  the  approval  and  audit  of  the  county  commissioners,  }|9|'  ^se. 

5  traveling  expenses  necessarily  incurred  in  connection  with  holding  ses-  R-  l'  leo', 
G  sions  of  said  courts  outside  of  the  towns  where  the  clerk's  offices  are  i904,"453, 
7  established.  1919, 362,  §3.  ^^^'''■ 

1  Section  82.    The  salaries  of  the  justices,  clerks  and  assistant  clerks  Periodical 

2  of  district  courts,  except  the  courts  mentioned  in  sections  seventy-five  to  orciassiM"' 

3  seAenty-seven,  inclusive,  whenever  the  population  of  their  respective  uio.^Im. 

4  judicial  districts,  as  ascertained  by  the  last  preceding  national  or  state  }g}g-  353"  §  4 

5  census,  permits  it,  shall  so  be  readjusted  in  the  year  following  such  census 
G  by  the  officer  paying  the  salary  as  to  apply  the  population  according  to 

7  such  census  to  the  schedule  and  computation  of  salaries  contained  in  sec- 

8  tions  seventy-eight  and  se\'enty-nine,  and  salaries  so  readjusted  shall  be 

9  allowed  and  paid  from  the  first  day  of  January  in  the  year  in  which  the 

10  readjustment  is  made;  but  such  readjustment  shall  not  reduce  the  salary 

11  of  any  official  aforesaid  while  the  incumbent  then  in  office  continues  to 

12  hold  office. 

1  Section  83.     The  salaries  of  court  officers  in  the  following  courts  shall  Salaries  of 

.  -    -^  ^  court  officers. 

2  be  as  follows: 

3  Municipal  court  of  the  Brighton  district,  twelve  hundred  dollars.        issi,  261. 

1886,  148.  R.  L.  160,  §  67.  1918,  194.  ^-  ^-  '^'  ^  ''■*• 

4  jNIunicipal  coiu-t  of  the  Charlestown  district,  nineteen  hundred  dollars.  1879, 265,  §  s. 

p.  S.  154,  §  64.  R.  L.  160,  §  67.  1917,  282,  §  3.  ^^*^'  ^*'- 

1886,  136.  1909,  367.  1920,  486. 

5  Mmiicipal  court  of  the  Dorchester  district,  eighteen  hundred  dollars,  issi,  2fii. 

R,  L.  160,  §  67.  1917,  282,  §  2.  1920,  487.  ^'  ^'  ^**'  ^  ^*' 

1913,  725.  1919,  250. 

6  East  Boston  district  court,  seventeen  hundred  doUars.  1879,265,  §8. 

p.  S.  154,  §  54.       1886,  15,  §  6.         1907,  333.  1914,  700,  §§  1,  3.      ^*®^'  ^®^' 

1882,  245,  §  1.        R.  L.  160,  §  67.       1912,  497.  1920,  490. 

7  iSIunicipal  court  of  the  Roxbury  district,  two  thousand  dollars.  1881, 261. 

1882,  245,  §  1.       R.  L.  IfiO,  §  67.       1917,  292.  1920, 482.  •     '  ' 

1889,  174.  1913,  691.  1919,  184. 

8  Municipal  court  of  the  South  Boston  district,  eighteen  hundred  dollars.  i879, 205,  §  s. 

1  SSI     9^1 

p.  S.  154,  §54.  R.  L.  160,  §67.  1917,  2S2,  §  1.  looi,  ^oi. 

1882,  245,  §  1.  1907,  324.  1920,  485. 

9  ^Municipal  com-t  of  the  West  Roxbury  district,  seventeen  hundred  Jlgi'lei'^^' 

10  dollars.  p.  s.  154,  §  64.  isse,  i48. 

R.  L.  160,  §67.  1911,259.  1920,484. 

11  Court  officers  in  other  district  courts,  except  the  municipal  court  of  the  is93,  son, «  62. 

12  city  of  Boston,  shall  receive  salaries  to  be  fixed  by  the  justice,  subject  1912,2531497.' 

13  to  the  approval  of  the  county  commissioners,  payable  upon  vouchers  \l\t[  25?;  ^  ^' 

14  approved  by  the  justice  and  the  county  commissioners.  ^*^^' 

1919,  5.  1920,  2. 


2366 


TEIAL  JUSTICES. 


[ClL\P.   219. 


Computation 
of  compensa- 
tion. 

1872,  199,  §  5; 
289,  §  2. 
1874,  35,  §  2. 
1879,219;  220; 
247. 
1881,  128,  §  4. 


Section  84.     Justices,  clerks  and  officers  whose  salaries  are  fixed  in  1 

this  chapter  shall  be  paid  at  the  same  rate  for  any  part  of  a  year,  and  in  2 

computing  the  rate  by  the  day  of  the  compensation  of  justices  and  clerks  3 

of  district  courts,  Sundays  and  legal  holidays  shall  not  be  included  in  4 

the  days  on  which  the  courts  are  open  for  business.  5 

p.  S.  154,  §  64.  1894,  142.  R.  L.  160,  §§  67,  71. 


REFERENCES. 

§  1.    Police  court  of  Lowell  may  sit  at  Tewksbury  in  certain  cases.  Chap.  122,  §  24. 

§§  1-3.  Concurrent  jurisdiction  of  certain  local  courts  in  case  of  escape  from  state 
infirmary,  Chap.  122,  §  2.5. 

§  4.     See  similar  provision  as  to  probate  courts.  Chap.  21.5,  §  2. 

§  37.    Service  of  process  by  attendance  officer.  Chap.  149,  §  84. 

§  60.  Jurisdiction  of  Boston  juvenile  court  over  parents  contributing  to  delinquency 
of  child.  Chap.  119,  §  63. 


CHAPTER    219 

TRIAL  JUSTICES. 


Sect. 

1.  Designation  and  commission. 

2.  Location. 

3.  Jurisdiction. 

4.  Term  of  office.     Bond. 

5.  Sittings  and  adjournments. 

6.  Warrants,  etc.,   returnable   to  district 

courts. 

7.  Bail  fees. 

8.  Cases  may  be  filed. 

9.  Contempt. 

10.  Failure  of  justice  to  attend. 

11.  Making,   preservation  and    deposit   of 

records.     Penalties. 

12.  Powers  when  commissioned  anew. 

13.  Completion  of  unfinished  business. 

14.  Not  to  act  as  attorney  on  appeal. 

15.  Accounts. 


Sect. 

16.  Annual  returns. 

17.  Salaries. 

18.  General  jurisdiction. 

19.  Breaches  of  the  peace. 

20.  Trial  or  binding  over. 

21.  Larcenies,  etc. 

22.  Trespasses. 

23.  Taking  of  vehicles,  etc. 

24.  Fish  and  game  laws. 

25.  By-laws,  etc. 

26.  Common  nuisances. 

27.  Disorderly  houses. 

28.  Drunkenness,  intoxicating  liquor,  etc. 

29.  Dairy  products. 

30.  Hawkers  and  pedlers. 

31.  Felonies  by  juvenile  offenders. 

32.  Penalties. 


Designation 
and  com- 
mission. 

1858,  138,  § 

1859,  193. 

1860,  187,  § 
G.  S.  120. 
§S  33,  36. 
1877,211,  § 
P.  S.  155, 
§§  0,  7. 

R.  L.  161, 
§1  5,  0. 


Section  1.     The  governor,  with  the  advice  and  consent  of  the  coun-  1 

cil,  may  designate  and  commission  justices  of  the  peace  as  trial  justices  2 

in  the  towns  named  in  the  following  section,  and  may  revoke  such  desig-  3 

nation.    A  justice  of  the  peace  not  so  designated  and  commissioned  shall  4 

not  have  or  exercise  any  judicial  power,  and  shall  not  receive  complaints  5 

or  issue  warrants,  except  as  pro\ided  in  section  thirty-six  of  cliapter  two  0 

hundred  and  eighteen  and  in  chapter  two  hundred  and  thirty-tlu-ee.  7 

1917,  326,  §  1.  126  Mass.  235.  134  Mass.  226. 


i858,*'i38,  §  2.  Section  2.  One  such  trial  justice  may  be  designated  and  commis-  1 
?869  '44  ^  ^^'  sioned  in  each  of  the  following  places :  Ludlow,  Hardwick,  Barre,  Hudson,  2 
P  s.'iV  §  10.   Hopkinton,  Saugus,  Nahant,  Marblehead,  North  Andover,  Andover  and     3 


1892, 40S.  ,  ^      , 

R.  L.  161, 1 9.    Methuen. 


1917,  326,  §  1. 


1918,  245. 


Section  3.     A  trial  justice  may  receive  complaints  and  issue  war-     1 


Jurisdiction. 

1858,  138,  -     .  .  1  .  ■      •  -> 

^.^  c.'  ?on  5j  oo  rants  and  summonses  against  persons  charged  with  crime  and  try  criini-  2 

35, 36.  nal  cases  arising  within  the  town  where  he  resides  at  the  time  when  he  6 


CH-\.P.  219.]  TRL^L  JUSTICES.  2367 

4  is  designated  and  commissioned,  and  may  interchange  sendees  'with  and  l^'g'fgg''  ^"' 

5  act  for  any  other  trial  justice  within  the  county  in  which  he  resides.    The  |§  }}\¥{ 

6  trial  iustices  residing  in  Barre  and  Hardwick  shall  have  concurrent  iuris-  §§  i6, 28.' 

7  diction  of  offences  committed  in  the  towns  of  New  Braintree  and  Oakliam.  §§  i,'4."  ' 

1918,  97. 

1  Section  4.     A  trial  justice  shall  hold  his  office  for  three  years  from  Term  of  office. 

2  the  time  of  his  designation,  unless  during  that  period  he  ceases  to  hold  a  isTo.is?,  §  2. 

3  commission  as  justice  of  the  peace  or  unless  such  designation  and  com-  Jfyy;  211!  |  r. 

4  mission  as  trial  justice  is  revoked.    A  trial  justice,  before  entering  upon  F;^l,55. 

5  the  duties  of  his  office,  shall  give  a  bond  similar  to  that  required  from  cVyl®'' 

6  the  clerk  of  a  district  court  imder  section  sixteen  of  chapter  two  himdred  134  iviass.  226. 

7  and  eighteen,  and  failure  to  give  such  bond  shall  have  like  effect  as  in 

8  the  case  of  such  clerk. 

1  Section  5.     Cases  before  trial  justices  mav  be  heard  and  determined  sittings  and 

.  *'  •■  adjournments. 

2  at  any  convenient  and  suitable  place.    The  reasonable  and  necessary  ex-  i^sa.  42,  §  2. 

3  penses,  not  exceeding  ten  dollars  a  month,  actually  incurred  by  a  trial  r,  s.'ss,' 

4  justice  for  the  rent  of  an  office  used  by  him  for  court  purposes,  shall  be  G.s.120! 

5  paid  by  the  county  where  the  office  is  located,  in  the  same  manner  as  the  p  |'  fis, 

6  expenses  for  rent  of  district  courts.     Trial  justices  may  adjourn  their  ilgf^'ssg. 

7  courts  in  all  cases  to  any  other  time  or  place,  but  not  exceeding  ten  days  ^°l'  j*^- 

8  at  any  one  time  against  the  objection  of  the  defendant.  §§  i6.  !"•  si- 

1917,  326,  §§3,6.  4  Gush.  455.  145  Mass.  205.  166  Mass.  303. 

1  Section  6.     A  trial  justice  may  receive  complaints  and  issue  war-  warrants,  etc, 

2  rants  ahd  summonses  in  cases,  arising  within  his  town,  outside  his  dtsteet  courts. 

3  jurisdiction  but  within  the  jiu-isdiction  of  a  district  court  within  the  Q^i; iH;  ^  ^' 

4  county,  making  the  warrant  or  summons  returnable  to  a  court  having  f|7??'2^n  §  4 

5  jurisdiction.  p.  s.  155,  §  43.  r.  l.  161,  §  28.  i9i7, 326,  §  4. 

1  Section  7.     A  trial  justice,  taking  bail  between  nine  o'clock  in  the  Bail  fees. 

2  forenoon  and  six  o'clock  in  the  afternoon  in  a  case  within  his  jurisdiction,  ^^"'  ^^^'  ^  *" 

3  shall  receive  no  fee  tlierefor. 

1  Section  8.    Trial  justices  shall  have  like  power  with  district  courts  cases  may 

2  to  ffie  criminal  cases.  1915, 101.  1917, 326,  §  9.  ""^  ^^• 

1  Section  9.     Trial  justices  may  punish  disorderly  conduct  interrupt-  Contempt 

2  ing  any  judicial  proceedings  before  them,  or  which  is  a  contempt  of  their  r.  s.'8o,'§  33. 

3  authority,  by  a  fine  of  not  more  than  ten  dollars  or  by  imprisonment  for  p.'s.ils.'i  es.' 

4  not  more  than  fifteen  days. 

R.  L.  101,  §48.  12Cush320.  2  Gray,  120.  120  Mass.  118. 

1  Section  10.     If  a  trial  justice  fails  to  attend  at  the  time  and  place  to  FaUure  of 

2  which  an  examination  or  trial  has  been  adjoiu-ned  by  him,  any  other  j,'J?end.*° 

3  trial  justice  within  the  same  county  may  attend  and  hear  or  try  said  case,  J**^,  Jjs-  ^^^ 

4  and  may  further  adjourn  such  examination  or  trial  in  the  same  manner  i^e  Mass.  270. 

5  as  the  justice  before  whom  the  ca^e  was  first  pending.    The  justice  who 

6  so  takes  cognizance  of  the  case  shall  make  a  minute  of  the  proceeduigs 

7  before  liimself  on  the  complaint  and  certify  the  samc.^and  it  shall  be 

8  entered  on  the  records  of  the  justice  who  makes  the  final  order,  sentence 

9  or  decree  in  the  case.    Any  recognizance  taken  by  the  justice  before  whom 
10  the  case  was  originally  pending  shall  continue  in  full  force  and  effect. 


2368 


TRLiL  JUSTICES. 


[CiLiP.   219. 


Making,  pres- 
ervation and 
deposit  of 
records. 
Penalties. 
17S3,  42,  §  3. 
R.  S.  85.  §  35. 
G.S.  120.  §51. 
P.  S.  155.  §  69. 
1888.  211, 
§§  1-5. 
R.  L.  161, 
5§  49,  61-63. 
1917,  326,  5  5. 
12  Met.  9. 
2Grav,  115. 

3  Grav.  574. 

4  Grav.  29. 
168  Mass.  234. 


Section  11.  Trial  justices  shall  keep  a  record  of  all  their  judicial 
proceedings.  They  shall  safely  preserve  all  dockets  and  records  thereof 
and  other  official  papers  in  their  custody,  shall  keep  them  open,  under 
proper  regulations,  to  public  inspection  and  examination,  and  shall 
furnish  copies  thereof  upon  request  and  upon  payment  of  such  fees  as 
are  allowed  in  similar  cases  to  clerks  of  courts.  Whoever  knowingly  and 
wilfully  destroys,  defaces  or  conceals  the  dockets,  records  or  other  official 
papers  of  a  trial  justice  shall  forfeit  not  more  than  one  thousand  dollars,  8 
and  shall  be  liable  in  damages  to  any  person  who  is  injured  thereby.  9 
Upon  the  death,  resignation  or  removal  from  office  of  a  trial  justice,  all  10 
his  dockets,  records  of  liis  judicial  proceedings  and  other  official  papers  11 
in  his  custody  shall  be  deposited  in  the  office  of  the  clerk  of  the  coiu-ts  in  12 
the  county  in  which  he  was  designated.  A  trial  justice  who  neglects  for  13 
tliree  months  after  his  resignation  or  removal  from  office  so  to  deposit  14 
his  dockets,  records  and  other  official  papers  shall  forfeit  not  more  than  15 
five  hundred  dollars,  and  the  executor  or  administrator  of  a  deceased  16 
trial  justice  who  neglects  for  tliree  months  after  the  filing  of  his  bond  so  17 
to  deposit  in  the  clerk's  office  the  dockets,  records  and  other  official  papers  18 
of  the  deceased  wliich  come  into  his  hands  shall  forfeit  a  like  amount.         19 


Powers  when 
commissioned 
anew. 

1788.  19.  §  2. 
R.  S.  85.  I  23. 
1852.  283.  §  4. 
G.  S.  120,  §  56. 
P.  S.  155.  5  75. 
R.  L.  161.  §  57. 


Section  12.  If  a  trial  justice  is  commissioned  and  qualified  anew  at 
or  before  the  expiration  of  his  former  commission,  his  authority  shall  con- 
tinue; and  all  business  commenced  by  or  before  him  under  the  former 
commission  may  be  prosecuted  and  completed  in  the  same  manner  as  if 
that  commission  had  continued  in  force. 


Completion 
of  unfinished 
business. 
1860.  187,  §  1. 
1871,  386. 
P.  S.  155. 
II  8.  66. 
1890.  202. 
R.  L.  161. 
II  47.  56. 

1917.  326 

1918,  257 
§422. 


,18. 


Section  13.  If  a  trial  justice  ceases  to  hold  office,  he  may  nevertheless 
finish  any  case  pending  before  him  and  certify  copies  of  his  records  and 
papers;  but,  in  such  case,  as  well  as  in  case  of  his  death,  the  district  court 
witliin  whose  judicial  district  such  trial  justice  exercised  jurisdiction  may 
cause  and  allow  the  papers  in  the  case  to  be  brought  and  entered  in  said 
court,  and  may  thereupon  proceed  as  if  the  case  had  been  originally 
begun  therein.  i9i9,  s.  1920. 2. 


MtornVon"^  Section  14.  Trial  justices  shall  not  be  retained  or  employed  as  1 
1783^42  §2  attorneys  before  any  court,  upon  appeal  or  otherwise,  in  any  suit  or  2 
1815, 49.  action  previously  determined  before  themselves.  R.  s.  85.  §  34.  3 

G.  S.  120,  §  54.  1917,  326.  §  7.  9  Gray.  366. 

P.  S.  155,  §  73.  6  Gush.  331.  1  .•Ulen.  210. 

R.  L.  161,  §  53.  11  Gush.  315.  102  Mass.  372. 


1 

2 


^To^T.'li.  §  2.  Section  15.  Trial  justices  shall  be  subject  to  the  same  duties  and 
1791! li; If"  liabilities  as  clerks  of  district  coiu'ts  under  section  forty-seven  of  chapter 
R.  s.'85.'  §  37.    two  hundred  and  eighteen.  G-  s.  120,  §  57".  3 

p.  S.  155.  §78.  1890,204:216;  1S98,  204,  §  1. 

1887.  438,  I  5.  440,  II  6,  8.  1901,  126. 

1888,  ISO.  1891,  325.  |  1.  R.  L.  161,  §§  54,  59. 


'iSa^irTVy'  Section  16.  They  shall  annually,  on  January  first,  return  to  the 
1876  4^°'  ^  ^^'  county  treasurers  of  their  respecti^'e  counties  all  fees  of  sheriffs,  deputy 
RL^M'leo  sheriffs,  constables  and  witnesses  which  have  been  taxed  and  allowed 
14  Allen,  217.  during  the  preceding  year  and  which  then  remain  in  their  hands,  and  a 
schedule  thereof. 


i9i7"32Q.  1 10.       Section  17.     The  several  trial  justices  in  the  places  herein  named 
1919, 181.         shall  receive  a  salary,  to  be  paid  by  the  county  in  which  the  respective 


ClL\P.   219.]  TRL\L  JUSTICES.  2369 

3  places  are  situated,  on  the  basis  of  the  following  named  sums  for  each 

4  year  or  portion  thereof  of  their  respective  commissions:    Ludlow,  five 

5  hundred  dollars;  Hardwick,  two  hundred  and  fifty  dollars;  Barre,  three 

6  hundred  dollars;    Hudson,  five  hundred  dollars;    Hopkinton,  one  hun- 

7  dred  dollars;    Saugus,  one  thousand  dollars;    Nahant,  twelve  hundred 

8  dollars;  Marblehead,  one  thousand  dollars;  North  And  over,  tlu-ee  hun- 

9  dred  dollars;   Andover,  five  hundred  dollars;   and  Methuen,  one  thou- 
10  sand  dollars. 

1  Section  18.     Trial  justices  shall  have  jurisdiction,  concurrent  with  General 

2  the  superior  court  and  the  appropriate  district  court,  of  all  crimes  which  is58,45,'T2. 

3  may  be  subject  to  the  penalties  of  a  fine  or  forfeiture  of  not  more  than  p;  |;  155,'  |  IJ; 

4  fifty  dollars  or  of  imprisonment  for  not  more  than  six  months,  or  both.    fgiV  l%\  ^  ^°- 

11  Gray,  64.  14  Gray,  35,  47. 

1  Section  19.     They  shall  have  jurisdiction,  as  aforesaid,  of  the  crimes  Breaches 

2  of  assault  and  battery  and  of  other  breaches  of  the  peace  not  of  a  high  i692-3ris';^" 

3  and  aggravated  nature;  of  disturbing  the  peace  to  the  great  damage  and  fyss.^fi.^  ^' 

4  common  nuisance  of  the  inhabitants  of  the  place  where  the  disturbance  R^s'|f-5  24 

5  occurs;  of  affrays  and  riots;  of  going  armed  offensively  to  the  terror  of  r?*|'^|^  .,0 

6  the  people;   of  uttering  menaces  or  threatening  speeches;   and  of  being  isn,  ns'. 

7  a  dangerous  and  disorderly  person ;  and,  upon  conviction  of  the  defendant,  p.  s.' 155,' §  46. 

8  may  punish  him  by  a  fine  of  not  more  than  thirty  dollars,  or  by  imprison-  fgis;  101!  ^  ^^' 

9  ment  for  not  more  than  ninety  days. 

1  Section  20.     Whoever  is  brought  before  a  trial  justice  for  any  of  the  Trial  or 

2  crimes  named  in  the  preceding  section  shall  be  examined  by  him,  and  r."s.'^\Y25. 

3  may  be  tried  before  him,  and,  if  convicted,  may  be  required  to  find  sure-  p  |;  il";  I47.' 

4  ties  to  keep  the  peace  for  not  more  than  one  year  and  be  punished  by  J^ j|- 1|^'  5  32. 

5  fine  or  imprisonment  as  before  provided;  or,  if  the  offence  is  of  a  high  and  \a?q\ 

6  aggravated  nature,  he  may  be  committed  or  bound  over  for  trial  before  1920!  2. 

7  the  superior  court. 

1  Section  21.     They  shall  have  jurisdiction,  as  aforesaid,  of  the  crime  Larcenies,  etc. 

2  of  larceny;  of  the  crime  of  buying,  receiving  or  aiding  in  the  concealment  n^'.  12!,'    ^' 

3  of  stolen  property,  and  of  the  crime  of  fraudulently  obtaining  property  i85\^'i56,  §  4. 

4  by  any  game,  device,  sleight  of  hand,  pretended  fortune  telling,  or  by  \l^l'  jgg  ,  ^ 

5  any  trick  or  other  means  by  the  use  of  cards  or  other  implements  or  in-  q"'?26 

6  struments,  if  the  value  of  the  property  in  respect  of  which  the  crime  is  §§41,44.' 

7  committed  is  not  alleged  to  exceed  ten  dollars.     In  all  such  cases  the  §§sb,  ss'. 

8  defendant,  upon  a  first  conviction,  shall  be  punished  by  a  fine  of  not  9  brayf  lil.^  ' 

9  more  than  fifteen  dollars,  or  by  imprisonment  for  not  more  than  six  '^°^  "^''""'-  *''*■ 

10  months;    and  upon  a  subsequent  conviction  of  the  like  offence,  com- 

11  mitted  after  a  former  conviction,  he  shall  be  punished  by  a  fine  of  not 

12  more  than  twenty  dollars,  or  by  imprisonment  for  not  more  than  one 

13  year;   but  if  the  person  convicted  of  buying,  receiving  or  aiding  in  the 

14  concealment  of  such  stolen  goods  or  property  makes  satisfaction  to  the 

15  person  injured  to  the  full  value  of  the  property  stolen  and  not  restored, 

16  the  punishment  may  be  mitigated  as  justice  may  require. 

1  Section  22.    They  shall  have  jurisdiction,  as  aforesaid,  of  all  the  Trespasses. 

2  crimes  mentioned  in  sections  one  hundred  and  thirteen,  one  hundred  and  §''13,"^' ^''' 

3  fourteen,  one  hundred  and  fifteen,  one  hundred  and  .seventeen,  and  one  i7s5;28,\^i. 

4  hundred  and  twenty-seven  of  chapter  two  hundred  and  sixty-six,  if  the  Jf '|' ^26,  §  40. 


2370 


TKLVL  JUSTICES. 


[Ch.u>.  219. 


1846,  52,  §  2. 
G.  S.  120,  §  42. 
1868,  321,  §  2. 
P.  S.  155.  §  51. 
R.  L.  161.  §  37. 
141  Mass.  23S. 


value  of  the  trees,  fruit,  flowers  or  other  property  injured,  destroyed,  5 
taken  or  carried  away,  or  the  injury  occasioned  by  the  trespass,  is  not  6 
alleged  to  exceed  one  hundred  dollars;  and  may  punish  the  same  by  a  7 
fine  of  not  more  than  one  hundred  dollars,  or  by  imprisonment  for  not  8 
more  than  six  months,  or  both;  but  if  the  value  of  the  property  so  de-  9 
stroyed  or  injured  or  the  amount  of  injury  done  is  not  alleged  to  exceed  10 
fifteen  dollars,  the  fine  imposed  for  a  violation  of  said  section  one  hundred  1 1 
and  twenty-seven  shall  not  exceed  fifteen  dollars  or  the  imprisonment  12 
exceed  thirty  days.  13 


Taking  of 
vehicles,  etc. 
1S56,  39.  §  2. 
G.  S.  120,  §  43. 
P.  S.  155,  §  52. 
R.  L.  161,  §  38. 


Section  23.     They  shall  have  jurisdiction,  as  aforesaid,  of  violations  1 

of  the  laws  relative  to  the  taking  or  using  a  boat  or  vehicle,  or  the  taking,  2 

driving,  riding  or  using  a  horse,  ass,  mule,  ox  or  any  draft  animal;   but  3 

they  shall  not  impose  a  fine  of  more  than  fifty  dollars  or  imprisonment  4 

for  more  than  six  months  or  both.  5 


glSe^iats.  Section  24.     They  shall  have  jurisdiction,  as  aforesaid,  of  violations     1 

Sm'  282  i  3^'   °^  *^^®  '^'^'^  regulating  the  taking  of  fish  and  game,  the  penalty  for  which     2 

does  not  exceed  a  fine  of  fifty  dollars  or  imprisonment  for  six  months.  3 


By-laws,  etc. 

1692- 

-3,  28,  §  5. 

1801, 

62. 

R.S. 

15,  §  13. 

1849, 

,211, 

§7. 

1852, 

299. 

1857, 

,194, 

§5. 

G.  S. 

120, 

§40 

P.  S. 

155, 

§48. 

R.  L. 

161, 

§33. 

Common 

nuisances. 

1863, 

78. 

1865, 

281. 

1866, 

280. 

§3. 

1878, 

155. 

P.S. 

155, 

§53. 

R.  L. 

161, 

§40. 

1914, 

624, 

2 

105  Mass. 

1S5. 

Ill  Mass. 

427. 

147  Mass. 

29. 

157  Mass. 

14. 

232  Mass. 

88. 

Disorderly 

houses. 

1863, 

78. 

1865, 

281. 

1866, 

280, 

§3. 

1878, 

155. 

P.S. 

155. 

§53. 

R.  L. 

161, 

§41. 

Drun 

kenness. 

intoxicating 

liquor,  etc 

1S66, 

,235, 

§4. 

1869, 

344, 

§8. 

1875, 

99.  I 

5  19. 

1878, 

203. 

§3. 

1880, 

239, 

§7; 

257, 

H. 

Section  25.     They  shall  have  jurisdiction,  as  aforesaid,  of  violations  1 

of  town  ordinances,  by-jaws  and  orders;  of  offences  of  unlawfully  keep-  2 

ing  billiard  tables  or  bowling  alleys;  of  violations  of  the  laws  relative  to  3 

the  public  health;  and  of  offences  against  property  in  cemeteries;  but  4 

no  single  penalty  imposed  for  offences  against  property  in  cemeteries  5 

shall  exceed  fifty  dollars.  6 

Section  26.     They  shall  have  jurisdiction,  as  aforesaid,  of  the  offence  1 

of  keeping  or  maintaining  a  common  nuisance,  namely,  a  building,  part  2 

of  a  building,  place  or  tenement  resorted  to  for  prostitution,  assignation,  3 

lewdness  or  illegal  gaming,  or  used  for  the  illegal  keeping  or  sale  of  in-  4 

toxicating  liquor;   and,  upon  conviction  of  the  defendant,  may  punish  5 

him  by  a  fine  of  one  hundred  dollars  and  by  imprisonment  for  not  less  6 

than  three  months  nor  more  than  one  year,  where  the  nuisance  relates  to  7 

prostitution,  assignation  or  lewdness,  and  in  other  cases  by  a  fine  of  not  8 

more  than  one  hundred  dollars  and  by  imprisonment  for  not  more  than  9 

one  year.  10 

Section  27.     They  shall  have  jurisdiction,  as  aforesaid,  of  the  common  1 

law  offence  of  keeping  and  maintaining  a  common,  ill-governed  and  dis-  2 

orderly  house;   and,  upon  conviction  of  the  defendant,  may  punish  him  3 

by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  4 

not  more  than  one  year.  5 

Section  28.     They  shall  have  jurisdiction,  as  aforesaid,  of  cases  of  1 

drunkenness;    of  violations  of  the  laws  relative  to  intoxicating  liquors;  2 

and  of  violations  of  the  laws  relative  to  tramps,  vagrants,  vagabonds,  3 

cruelty  to   animals,   and   obscene  books,   pamphlets,   ballads,   printed  4 

papers,  prints,  pictures,  figures,  descriptions,  and  other  obscene  things.  5 

P.  S.  155.  §  54.  1892.  160.  1894.  433.  §  2.  R.  L.  161,  §§  42,  43,  45. 


prSScts.  Section  29.     They  shall  have  jurisdiction,  as  aforesaid,  of  cases  aris-     1 

189?'  .349'         '^^S  under  the  laws  relative  to  the  inspection  and  sale  of  dairy  products    2 
R.  l!  161,  §  34.   and  imitations  thereof,  and  of  milk.  3 


CoAF.  220.] 


COUETS   .\JfD  NATUK.\LIZATION. 


2371 


1  Section  30.     They  may  take  jurisdiction  of  violations  of  law  by  Hawkers  and 

2  hawkers  and  pedlers  in  unlawfully  selling  or  exposing  for  sale,  and  in  iles^ii 

3  such  cases  may  impose  a  fine  of  not  more  than  fifty  dollars.  r.  l.\m',  |44 


1  Section  31.     They  shall  have  jurisdiction,  as  aforesaid,  of  felonies  Felonies  by 

2  not  punishable  by  death  or  imprisonment  for  life  committed  by  juvenile  offrndera. 

3  offenders  under  seventeen,  and,  upon  their  conviction,  may  sentence  JPf •  Iff .  g 

4  them  to  any  punishment  authorized  for  such  crime,  except  imprisonment  jsso.  is_3.' 

5  m  the  state  prison,  or  they  may  commit  them  to  any  mstitution  estab-  R  l-  lei  '  ■" 

6  lished  by  law  for  the  reformation  of  juvenUe  offenders,  or  may  bind  them 

7  over  for  trial  in  the  superior  court. 


3.5. 
127  Mass.  450. 


1  Section  32.     For  offences  within  their  jurisdiction,  if  no  penalty  is  Penalties. 

2  fixed  by  the  section  giving  them  jurisdiction,  they  may  impose  the  same 

3  penalties  as  district  courts. 


CHAPTER    220. 

COURTS  AND  NATURALIZATION. 


Sect. 


COURTS. 


1.  Courts  to  display  flag. 

2.  General  powers  of  courts. 

3.  Justices  to  be  conservators  of  the  peace. 

4.  First  day  of  sitting,  how  designated. 

5.  Change  of  time  and  place  of  court. 

6.  Courts  not  to  be  open  Sundays,  etc., 

unless,  etc. 

7.  Sheriffs,  et«.,  to  serve  process. 

8.  Attorneys,  etc.,  not  to  buy,   etc.,   de- 

mands for  collection. 

9.  Criers. 
Judge,   etc.,  not  disqualified  by  inter- 
est, when. 

11.  United  States  judicial  officer. 


10 


Sect. 

12.  Referee  in  bankruptcj'  not  to  hold  cer- 

tain offices. 

13.  Minors  may   be  excluded   from   court 

rooms. 

14.  Commitment  for  contempt.    Service  of 

process. 

N-A.TURALIZATION'. 

15.  Jurisdiction  of  naturalization. 

16.  Adjourned  and  special  sessions  for  nat- 

uralization. 

17.  Evening  sessions  for  same. 

18.  Court  may  fix  time  and  place  for  re- 

ception by  clerk  of  declarations. 

19.  Returns  of  naturalizations  to  secretary. 


coxniTS. 


1  Section  1.    The  national  flag  of  suitable  dimensions  shall  be  dis- courts  to 

2  played  in  every  court  of  justice  of  the  commonwealth  while  the  court  igTJrisg!^" 

3  is  in  session. 


1  Section  2.     The  courts  of  the  commonwealth,  the  justices  thereof  General 

2  and  trial  justices  shall  have  and  exercise  all  the  powers  necessary  for  the  courts. 

3  performance  of  their  duties.     They  may  issue  all  writs,  warrants  and  nss,  i'a,  §  i. 

4  processes  and  make  and  award  judgments,  decrees,  orders  and  injunc-  lia 'h.' 

5  tions  necessary  or  proper  to  carry  into  effect  the  powers  granted  to  ^fjf  I'll;®' 

6  them,  and,  if  no  form  for  such  writ  or  process  is  prescribed  by  statute,  j^29.®87ft'i3 

7  they  shall  frame  one  in  conformity  with  the  principles  of  law  and  the  Jf ^?' fJs' 1 1: 

8  usual  course  of  proceedings  in  the  courts  of  the  commonwealth. 


p.  S.  153.  §3;  154.  §12; 
155.  §  67;  156,  §  23. 
1893,  396,  I  57. 


R.  L.  166,  §  1. 
155  Mass.  486. 


206  Mass.  417. 
222  Mass.  131. 


Ufi.  §  11;    117, 
§  20;   120,  §  47. 


2372 


COURTS   AND  NATURALIZATION. 


[CiLU'.   220. 


Justices  to  be 
conservators  of 
the  peace. 
1G92-3,  IS.  §  6. 
1782,  9,  §  1. 
17S3,  51,  §  1. 
1794,  26. 
R.  S.  81,  §7; 
85,  5  27; 
87,  I  7, 
1854,  335.  §  5. 
1858,  138.  §  1. 
G.  S.  115,  §  2; 
120,  §  32. 
P.  S.  153,  §  2; 

154,  §  11; 

155,  I  1. 
1893,  396,  §  43. 
R.  L.  166,  §  2. 
11  Gray,  194. 


Section  3.  The  justices  of  the  supreme  judicial  court  and  of  the  1 
superior  court,  justices  and  special  justices  of  district  courts,  by  virtue  2 
of  their  offices,  and  justices  of  the  peace  shall  be  conservators  of  the  3 
peace  tliroughout  the  commonwealth  and  as  such  may,  upon  view  of  4 
an  affray,  riot,  assault  or  battery,  without  a  warrant  in  writing,  com-  5 
mand  the  assistance  of  every  sheriff,  deputy  sheriff,  constable  and  police  6 
officer  and  of  all  other  persons  present  for  its  suppression  and  for  the  7 
arrest  of  all  persons  concerned  therein  as  provided  in  chapters  two  8 
hundred  and  seventy-five  and  two  hundred  and  seventy-sLx.  Persons  9 
so  arrested  shall  be  taken  before  a  district  court  or  trial  justice  for  10 
examination.  1 1 


First  day  of 
sitting,  how 
designated. 
R.  S.  82.  §  44. 
1859,  196,  §  IS. 
G.  S.  115,  §  15; 
122,  §  1. 


Change  of 
time  and  place 
of  court. 
1730-31,  12. 
1797,  16,  §  10. 
R.  S.  89, 
§§  2,  3. 
G.  S.  122. 
I§  2,  3. 
P.  S.  160, 
§§2,3. 
R.  L.  166,  §  4. 


Section  4.  In  writs,  processes,  records  and  judicial  proceedings, 
civil  or  criminal,  the  day  on  which  any  sitting  is  to  commence  may  be 
designated  as  the  first,  second  or  other  Monday,  or  other  day  in  the 
week,  as  the  case  may  be,  of  the  month  in  which  the  sitting  commences. 

p.  S.  153,  §21;  100,  §  1.  R.  L.  166,  §3. 

Section  5.  If  it  is  unsafe  or  inexpedient  to  hold  a  court  at  the  time 
and  place  appointed,  a  justice  of  the  court  may  appoint  another  time 
and  place  within  the  same  county  for  holding  the  same.  Such  adjourn- 
ment shall  be  made  by  an  order  in  WTiting,  signed  by  the  justice  or 
justices,  and  served  by  public  proclamation  by  the  person  to  whom  it 
is  directed  in  the  shire  town  or  as  near  thereto  as  is  safe,  and  also  by 
publication  in  such  newspaper  or  in  such  other  manner  as  is  required  in 
the  order. 


Courts  not  to 
be  open 
Sundays,  etc., 
unless,  etc, 
R.  S.  89.  §  4. 
1856,  113,  §  1. 
G.  S.  122,  §4. 
1881,71. 
P.  S.  160.  §  4. 
1894.  130, 
§§3,4. 

1896,  162,  §  1. 
R.  L.  166,  §  5. 


Sheriffs,  etc., 
to  serve 
process. 
1783,44,  §  1; 
46,  §  1. 


Attorneys, 
etc.,  not  to  buy, 
etc.,  demands 
for  collection. 
1811,62. 
R.  S.  89.  § 
G.  S.  122. 
§§6,7. 
P.S.160.§ 
R.  L.  166.  §  7. 
13  Pick.  79. 
109  Mass.  237. 
138  Mass.  530. 
148  Mass.  IS. 


Section  6.  Courts  shall  not  be  open  on  Sunday,  on  a  legal  holiday 
or  the  following  day  if  a  holiday  occurs  on  Sunday,  except  as  provided 
in  section  four  of  chapter  two  hundred  and  thirteen  except  for  the  pur- 
pose of  entering  or  continuing  cases,  instructing  or  di.scharging  a  jury, 
receiving  a  verdict  or  adjourning;  but  this  section  shall  not  prevent  the 
exercise  of  the  jurisdiction  of  any  magistrate  in  criminal  cases  to  pre- 
serve the  peace  or  arrest  oft'enders. 


J5-7. 


§6.7. 


13  iMass.  324. 

14  Allen.  156. 


107  Mass.  209. 
117  Mass.  1. 


184  Mass.  575. 
1  Op.  A.  G.  66. 


IS17,  13;    190,  §  1. 

R.  S.  14,  §  68;  83,  §  11; 

84,  §  3;   85,  §  30. 


G.S.  17.  §15;  122, 
P.  S.  22.  §  21;  160. 
R.  L.  20.  §  23;  166, 


Section  8.  No  attorney,  justice  of  the  peace,  sheriff,  deputy  sheriff 
or  constable  shall,  directly  or  indirectly,  buy  or  be  interested  in  buying, 
or,  directly  or  indirectly,  lend  or  advance  or  agree  to  lend  or  advance 
any  money  or  other  goods,  or  give  or  promise  any  valuable  considera- 
tion whatever  to  any  person,  as  an  inducement  to  place,  or  in  considera- 
tion of  having  placed,  in  the  hands  of  any  person  any  bond,  note,  book 
debt  or  right  of  action  for  collection,  with  intent  to  make  for  himself 
any  gain  from  the  fees  arising  from  such  collection  by  legal  proceedings. 
Violations  of  this  section  shall  be  punished  by  a  fine  of  not  less  than 
twenty  nor  more  than  five  hundred  dollars. 


Section  7.  Sheriffs,  deputy  sheriffs,  constables  and  other  officers  1 
shall  serve  all  lawful  processes  issued  by  a  court,  judge,  judicial  officer  2 
or  county  commissioners  legally  directed  to  them.  3 


1 
2 

3 

4 
5 

6 

7 

8 

9 

10 


i859?207.  Section  9.     Clerks  or  assistant  clerks  of  courts,   sheriffs  or  their     1 

G.  s.  122,  §  12.  deputies,  as  the  court  may  direct,  shall  perform  the  duties  of  criers,     2 


Chap.  220.]  courts  and  naturalization.  2373 

3  without  additional  compensation;    and  any  ofBcer  may  adjourn  the  p.  s.  hm.  §  12. 

4  court  by  order  thereof.  ^-  ^- '""'  ^  *• 

1  Section  10.     No  person  shall  be  disqualified  from  acting  as  judge.  Judge,  etc., 

2  magistrate,  appraiser  or  officer  of  any  kind  in  a  suit  or  proceeding  in  iled  bylnterest, 

3  which  a  town  is  interested  by  reason  of  his  interest  as  an  inhabitant  Jjloslig. §  2. 

4  thereof.    No  juror  shall  be  disqualified  by  reason  of  being  an  inhabitant  J|.'g'  Js^i  3^' 

5  of  Boston.  R.  s.  90,  §  124.  issg,  i.  §  13.  g.  s.  122,  §  13. 

p.  S.  160,  §  1%.  10  Cush.  494.  139  Masa.  315. 

R.  L.  166,  §  9.  11  Cush.  406.  147  Mass.  585. 

13  Mass.  324.  2  Allen,  396,  402,  596.  157  Mass.  14. 

1  Section  11.     No  person  who  holds  a  judicial  office  under  the  laws  United  states 

2  of  the  United  States  shall  hold  any  judicial  office  of  this  commonwealth,  i'855,'4S9,  §^14. 

3  except  that  of  trial  justice  or  justice  of  the  peace.  isss,  175,  §  1. 

G.  S.  144,  §  67.  1868,  24,  §  1.  P.  S.  160,  §  14.  R.  L.  166,  §  10. 

1  Section  12.     No  person  who  holds  the  office  of  referee  in  bank-  Referee  in 

2  ruptcy  shall  at  the  same  time  hold  any  judicial  office,  except  that  of  to  hoid''ce'rte!n' 

3  justice  of  the  peace,  nor  the  office  of  clerk  or  assistant  clerk  of  any  liiT.^ss?,  §  2. 

4  court,  or  register  or  assistant  register  of  probate  and  insolvency.  r.  L.^ee.Vn. 

1  Section  13.     Any  court  or  trial  justice  may  exclude  minors  as  spec-  Minora  may  be 

2  tators  from  the  court  room  during  the  trial  of  any  cause,  civil  or  criminal,  co^'t  rTOms.™ 

3  if  their  presence  is  not  necessary  as  witnesses  or  parties. 

ISSl.  274.  P.  S.  160,  §  16.  R.  L.  166,  §  12. 

1  Section  14.     Commitments  for  contempt  of  court  may  be  made  to  Commitment 

2  any  jail  in  the  commonwealth;    and  processes  issued  in  proceedings  s°ervi°e'or'''' 

3  relative  to  alleged  contempt  may  be  served  in  any  county  by  any  sheriff  issetlk. 

4  or  deputy  sheriff  to  whom  they  are  directed. 

R.  L.  166,  §  13.  188  Mass.  443.  196  Mass.  384. 

NATURALIZATION. 

1  Section  15.    The   supreme   judicial   court  and   the   superior   court  Jurisdiction  of 

^,,,1  .....  ,.  ,.  ..  .....  naturalization, 

2  shall  have  lurisdiction  to  naturalize  aliens  resident  within  their  respec-  is5,5, 28,  §  2. 

3  tive  judicial  districts  in  the  manner  set  forth  in  the  federal  laws  relative  §§  i,'2. ' 

4  to  naturalization.  isss,  44. 

G.  S.  122,  §§  8,  9,  11.  1886,  45;  203.  R.  L.  166,  §  14. 

1879,  300.  §  3.  1891,  l.SO;  419.  U.  S.  Comp.  Sta.  (1918), 

P.  S.  160,  §§  8,  9,  11;  199,  §  4.  1897,  505.  §  4351  el  seq. 

1885,  345,  §§  1,  2,  6,  8.  1900,  374,  §§  1,  3.  222  Mass.  87. 

1  Section  16.     The  superior  court  in  the  several  counties  may  make  Adjourned  and 

2  the  following  adjournments  from  any  of  its  regular  sittings  for  naturali-  for  naturafi'zT-'' 

3  zation:    in   Berkshire,   from   Pittsfield   to  North   Adams;    in   Bristol,  m"'. 68; 483. 

4  from  New  Bedford  to  Attleboro;    in  Hampden,  from  Springfield  to  jgll 5?s;  "'^' 

5  Holyoke,  Westfield  and  Chicopee;  in  Hampshire,  from  Northampton  to  Jgfj'flj 

6  Ware.     Special  sessions  for  naturalization  may  be  held  at  Lynn  in  i9i9!  lob. 

.  1020  232 

7  March  and  September,  and  at  Quiiicy  in  February  and  July,  on  such 

8  dates  as  the  chief  justice  may  fix,  and  in  such  other  cities  and  towns  and 

9  at  such  times  as  he  may  determine. 

1  Section  17.     Evening  sessions  of  the  superior  court  for  naturaliza-  Evening  aes- 

2  tion  may  be  held  in  each  county  except  Suffolk.  i9i3, 390.  ^^°^  °'^  ^*"°' 


2374 


CLERKS,  ATTORNEYS  AND  OTHER  OFFICERS  OF  COURTS.   [CH-U".  221. 


tiS^lS^pifc^       Section  18.     The  superior  court  may  authorize  the  execution  and  1 

bTcferit'o™      reception  by  the  clerk  of  the  court  of  declarations  of  intention  in  natural-  2 

declarations,      izatiou  proceedings  at  such  times  and  places  as  the  court  by  general  3 

order  may  direct.  4 


1912.  159. 


Returns  of 

naturalizations 

to  secretary. 

1885,  345,  §  5. 

1887,  36. 

R.  L.  166,  §  17. 


Section  19.     The  clerk  of  each  court  shall  annually,  on  or  before  1 

February  first,  make  to  the  state  secretary  a  return  of  the  name,  age,  2 

occupation  and  residence  of  every  person  naturalized  prior  to  the  pre-  3 

ceding  January  first,  the  date  of  the  naturalization  and  the  names  and  4 

residences  of  the  witnesses.     Such  returns  shall  be  preserved  by  the  sec-  5 

retary  in  a  form  convenient  for  reference.  6 


REFERENCES. 

Federal  law  giving  jurisdiction  to  state  courts,  U.  S.  Comp.  Sts.   (1918),  §  4351. 
Disposition  of  fees  in  naturalization  cases,  Chap.  221,  §  32,  and  U.  S.  Comp.  Sts. 
(1918),  §§  4372,  4372a. 

Appointment  of  bar  examiners,  Chap.  221,  §§  35,  36. 


CHAPTER    221 


CLERKS,  ATTORNEYS  AND  OTHER  OFFICERS  OF  JUDICIAL  COURTS. 


Sect. 


CLERKS    OF    COURTS. 


1.  Clerk  of  court  for  commonwealth. 

2.  His  duties. 

3.  Election  of  clerks,  term. 

4.  Assistant  clerks. 

5.  Same  subject. 

6.  Same.     Suffolk  county. 

7.  Deputy  assistant  clerks. 

8.  Temporary  clerks. 

9.  Temporary  assistant  clerks. 

10.  Appointment  by  court  of  temporary 

clerk. 

11.  Clerks  to  be  sworn. 

12.  Bonds  of  clerks. 

13.  Notice  to  secretary  of  vacancy  in  office 

of  assistant  clerk. 

14.  General  duties  of  clerks. 

15.  Duties  of  clerk   and   assistant   clerk 

of   the    supreme    judicial   court  in 
Suffolk. 

16.  Duties  of  clerk  of  superior  court  in 

Suffolk. 

17.  Facsimile  of  signature  of  clerk.    Signa- 

ture of  assistant  clerk. 
IS.  ASidavits  in  court  proceedings. 

19.  Forwarding    exceptions    to    attorney 

general. 

20.  Notice  of  rescript. 

21.  Notice  of  judgment. 

22.  Clerks  may  issue  orders  of  notice. 

23.  Alphabetical  list  of  parties. 

24.  Clerks    to    make    annual   returns   of 

eases  to  secretary. 

25.  Preservation  of  records  of  trial  justices. 


Sect. 

26.  Clerks  to  report  convictions  of  regis- 

tered physicians  or  of  unregistered 
practitioners,  etc. 

27.  Extension  of  papers  on  records. 

28.  Clerk  to  exhibit  records. 

29.  Justices  to  inspect  records. 

30.  Forfeiture  of  bond. 

31.  Liability  for  other  breaches. 

32.  Clerk  to  account  for  fees,  etc. 

33.  Duties  of  assistant  clerk. 

34.  Disposition  of  unclaimed  funds. 

BAR   EXAMINERS. 

35.  Appointment. 

36.  Admission  to  the  bar  of  attorneys  at 

law.     Expenses,  how  paid. 

ATTORNEYS    AT    LAW. 

37.  Petition  for  examination  for  admission 

as  an  attorney,  etc. 

Oath  of  office. 

Admission    of    attorneys   from    other 
states,  etc. 

Removal. 

41.  Penalties  on  disbarred  or  unauthorized 
attorneys  and  for  soliciting  law  busi- 
ness. 

Records  to  be  kept  as  to  the  standing 
of  attorneys  at  law. 

Attorneys  at  law  prohibited  from  so- 
liciting  employment  in  claims  for 
damages. 
44.  May  be  disqualified  in  certain  cases 
for  violating  section  43. 


3S, 
39 


40. 


42 


43 


Ch.u'.  221.] 


CLERKS  OF  COURTS. 


2375 


Sect. 

45.  Sheriff,  etc.,  not  to  act  as  attorney. 

46.  Corporations  not  to  practice  law. 

47.  Same  subject. 

48.  Parties  may  manage  their  own  suits. 

49.  Persons  specially  authorized,  etc. 

50.  Attorney's  lien  for  fees,  etc. 

51.  Penalty  for  not  paying  over  to  client. 

52.  Attorney  not  to  act  in  suit  pre%'iously 

decided  by  him. 

MASTERS,    AUDITORS,    REFEREES,   ASSESSORS, 
ETC. 

53.  Masters  in  chancery. 

54.  Completion  of  business  if  commission 

expires. 

55.  Compensation  of  masters,  etc. 

56.  Auditors.  Appointment,  findings,  etc. 

57.  Auditors  in  probate  court. 
68.  Notice  to  parties. 

59.  Discharge  by  court. 

60.  Hearings  before  auditors. 

61.  Compensation  of  auditors. 

62.  Reports  of  auditors,  masters,  etc. 

REPORTER   OF   DECISIONS. 

63.  Appointment. 

64.  Preparation  of  reports. 

65.  Style  of  reports. 

66.  Preser^'ation  of  opinions  until  publi- 

cation. 

67.  Deputy  reporter. 

68.  Compensation  of  reporter. 

COURT    OFFICERS. 

69.  Number  of  deputy  sheriffs,   etc.,   to 

serve  as  court  officers. 

70.  Court  officers  in  certain  counties,  ap- 

pointment   and     removal,     bonds, 
powers. 

71.  Chief  deputy  sheriffs  for  Suffolk  and 

Middlesex,  and   chief   court   officer 
for  Worcester. 

72.  Term  of  office. 

73.  Salaries  of  court  officers  in  supreme 

judicial  court  in  Suffolk  county. 

74.  Compensation  of  court  officers  of  su- 

perior court  in  certain  counties. 

75.  Fees  for  attendance  at  court. 


.Sect. 

76.  Duties  and  salaries  of  messengers  in 

Suffolk  county. 

77.  Premiums  on  bonds  in  Suffolk  county 

to  be  paid  by  county. 

78.  Service  of  venires  by  officers  of  the 

supreme  judicial  court,   county  of 
Suffolk. 

79.  Summoning  of  witnesses  by  officers  in 

Suffolk  and  Worcester. 

50.  Court  officers  to  wear  uniforms. 

51.  Officers  not  to  draw  double  pay. 

stenographers. 
82.  Appointment  in  the  superior  court. 
S3.  Assistant   stenographers   for   superior 
court  in  Suffolk. 

84.  Temporary  stenographers. 

85.  Stenographer  in  supreme  judicial  court 

and   in   criminal   cases   in   superior 
court. 

86.  Stenographer  for  grand  jury. 
S7.  Duties  of  stenographers. 

88.  Same  subject. 

89.  Interchange  of  services. 

90.  Stenographers  for  justices  of  the  su- 

preme judicial  court. 

91.  Salaries  and  compensation  of  stenog- 

raphers in  the  superior  court. 

interpreters. 

92.  Interpreters. 

salaries  and  expenses  of  clerks  and 
assistant  clerks  op  the  supreme 
judicial  and  superior  courts. 


93. 


94. 
95. 


98. 

99. 

100. 

101. 
102. 


Salaries  of  clerk  and  assistant  clerk  of 
supreme  judicial  court  for  the  com- 
monwealth. 

Salaries  of  clerks. 

Salaries  of  assistant  clerks. 

Adjustments  of  salaries. 

Salaries,  how  paid. 

Dukes  and  Nantucket  counties. 

Traveling  expenses. 

Salaries  of  temporary  clerk  and  assist- 
ant clerk. 

Salaries  to  be  in  full  compensation. 

Extra  clerical  assistance. 


CLERKS    OF   COURTS. 


1      Section  1.    The  iustices  of  the  supreme  iudicial  court  shall  appoint  cierk  of  court 

ct      1  iipi  •      T    '    1  c  1  IIP  ^°^  common- 

Z  the  clerk  or  the  supreme  judicial  court  tor  the  commonwealth  lor  a  term  wealth. 

3  of  five  years  from  the  date  of  his  appointment,  and  an  assistant  clerk  of  g.s.'i2i,' 

4  said  court  for  a  term  of  three  years  from  the  first  day  of  January  next  rs.'im, §11.2. 

5  after  his  appointment,  and  may  remove  them. 


R.  L.  1G5,  §  1. 


27  Mass.  598. 


1  Section  2.     The  clerk  shall  attend  all  sessions  of  the  court,  preserve  His  duties. 

2  all  the  files  and  papers  thereof,  keep  a  docket  record  of  all  questions  jf  ^/is." 

3  transferred,  and  of  all  petitions,  complaints  or  other  processes  presented  jj  3I5."'' 


2376 


CLERKS   OF  COXTETS. 


[Chap.  221. 


p.  S.  159, 

H  3-5. 

R.  L.  165,  I  2. 


Election  of 
clerks,  term. 
Const, 
amend.  19. 
(Const.  Rev. 
art.  62.) 
1853,  176, 
§§  2,  6,  7. 
1857,  1. 
G.S.  10,  §3; 
121,  §  6. 
1860, 11. 
P.  S.  10,  §  3; 
159,  §  6. 


to  the  court,  and  enter  thereon  the  names  of  the  parties  in  full  and  of  4 
the  counsel  who  appear  in  their  behalf,  and  a  brief  description  of  the  5 
nature  of  the  action  or  proceeding.  He  shall  also  record  thereon  accurate  6 
minutes  of  all  orders,  decrees  or  directions  of  the  court  in  each  case,  7 
transmit  forthwith  to  the  clerks  of  courts  in  the  several  counties  all  8 
rescripts  made  or  ordered  by  the  court  and  the  papers  which  belong  to  the  9 
supreme  judicial  court  or  the  superior  court  in  each  case,  and  receive  10 
and  keep  safely  all  papers  transmitted  to  him  by  the  clerks  of  the  courts.  1 1 
He  shall  make  copies  of  all  papers  on  file  in  said  court  and  of  the  docket  12 
record  thereof,  if  desired,  and  certify  them  under  the  seal  of  the  coUrt.  13 
He  shall  issue  such  writs  or  other  processes  as  the  court  orders,  shall  14 
charge  the  fees  provided  by  law  for  like  services  for  clerks  of  courts,  and,  15 
if  no  express  fee  is  provided,  he  shall  receive  a  fair  compensation  for  the  16 
services  required  of  him  in  analogy  to  like  services  for  which  a  compen-  17 
sation  is  fixed  by  law.  He  shall  annually,  before  the  last  Wednesday  18 
of  December,  account  with  and  pay  over  to  the  state  treasurer  all  fees  19 
received  by  him.  20 

Section  3.     There  shall  be  a  clerk  for  the  supreme  judicial  court  1 

for  the  county  of  Suffolk,  and  two  clerks  for  the  superior  court  of  said  2 

county,  one  for  civil  and  one  for  criminal  business;  and  in  each  of  the  3 

other  counties  a  clerk  of  the  courts  who  shall  act  as  clerk  of  the  supreme  4 

judicial  court,  of  the  superior  court  and  of  the  county  commissioners.  5 

All  of  said  officers  shall  hold  office  for  six  years  beginning  with  the  first  6 

Wednesday  of  January  following  their  election  and  until  their  succes-  7 

sors  are  qualified.  i89o,  423,  §§  iss,  190.  8 

1  384,  391,  503. 


1893,  417,  §§  251,  25S.  1913.  835, 

1898,  548,  §1  315,  322.  1917.  255,  §  1. 

R.  L.  11,  §§  318,  325;  165,  §  3.  1918,  114,  §  2. 
1907,  560,  §§  34C,  353,  456. 


1919,  269,  §§  19,  26. 
205  Mass.  189. 
2  Op.  A.  G.  536. 


Assistant 
clerks. 

1850,  236,  §  1. 
1851,38,  §  I. 
1855,  449,  §  2. 


1917,  100. 


1907,  253,  5  1. 
1917,  134, 
111.2. 

1917,  44,  §  1. 

1903,  137. 


1910,  188,  §  1. 


1904,  287. 
1907,  234. 
1912,  547, 
§§  1.  2. 


Section  4.     The  justices  of  the  supreme  judicial  court  shall  appoint  1 

for  a  term  of  tliree  years  from  the  date  of  their  appointment,  and  may  2 

remove,  assistant  clerks  of  courts,  as  follows:  3 

)  6,  8,  9. 


1856,  37,  I  1. 

1857,  1. 
1859,  196,  §  9. 
G.  S.  121,  §§  6,  8. 


1860,  11. 
1867,  295,  §  4. 
1873,  181. 
1881,  266. 


P.  S.  159,  § 

1897,  220. 

R.  L.  165,  i 


I  3-5,  7. 


For  the  county  of  — 

Barnstable,  an  assistant,  who  may  be  a  woman; 

Bristol,  an  assistant; 

Essex,  an  assistant,  a  second  assistant,  a  third  assistant  and  a  fourth 

assistant; 

Hampden,  an  assistant  and  a  second  assistant; 

Middlesex,  an  assistant,  a  second  assistant,  a  third  assistant  and  a  10 

fourth  assistant;  11 

Norfolk,  an  assistant;  12 

Pl;ymouth,  an  assistant;  13 

Suft'olk,  an  assistant  of  the  supreme  judicial  court;  14 

Worcester,  an  assistant,  a  second  assistant  and  a  third  assistant.  15 

Assistant  clerks  of  courts  except  in  Suffolk  county  shall  act  as  assistant  16 

clerks  of  the  supreme  judicial  comt,  the  superior  court  and  the  county  17 

commissioners.  18 


Same  subject. 
1873,  181. 
P.  S.  159,  §  9. 
R.  L.  165,  §  7. 
1904,  287. 
1912,  647,  §  2. 


Section  5.  In  addition  to  the  assistant  clerks  proxaded  for  in  the  1 
preceding  section,  the  clerks  of  the  courts  for  the  follo^\'ing  counties  may  2 
appoint  assistant  clerks,  with  the  same  powers  and  duties,  as  follows:  3 


CH-VP.   221.]  CLERKS  OF  COURTS.  2377 

4  For  the  county  of  — • 

5  Norfolk,  a  second  assistant,  who  may  be  a  woman,  subject  to  removal  isO'',  234. 

6  by  the  coiu-t  or  by  the  clerk. 

7  Middlesex,  subject  to  approval  of  a  justice  of  the  supreme  judicial  or  1919, 265,  §  1. 

8  superior  court,  not  more  than  two  assistant  clerks,  one  of  whom  may  be 

9  a  woman. 

10  Suffolk,  by  the  clerk  of  the  superior  com-t  for  criminal  business,  assist-  i907, 234. 

1 1  ant  clerks  pro  tempore  or  for  the  term  of  one  year,  who  may  be  women, 

12  subject  to  remo\'al  by  the  coiu-t  or  by  the  clerk;  and  by  the  clerk  of  the 

13  supreme  judicial  court  for  said  county,  a  second  assistant  clerk,  designated 

14  from  his  office  force. 

15  All  other  counties  ha\4ng  no  permanent  second  assistant  clerks,  assist-  1907,234. 

16  ant  clerks  pro  tempore  or  for  a  term  of  one  year,  who  may  be  women, 

17  subject  to  removal  by  the  court  or  by  the  clerk. 

1  Section  6.     The  justices  of  the  superior  court  may  appoint,  for  a  term  Same.   SuSoik 

2  of  three  years  from  the  date  of  their  appointment,  thirteen  assistant  isss^^is. 

3  clerks  of  said  coiu-t  for  ci\il  business  in  the  county  of  Suffolk,  one  of  Jltlls?! 

4  whom  shall  perform  the  duties  of  clerk  pertaining  to  the  equity  proceed-  393?'4^8a' 

5  ings  in  said  court. 

1S97,  334.  R.  L.  165,  §  6.  1906,  276. 

1899,  377.  1903,  472,  §  3.  1919,  251. 

1  Section  7.     The  clerks  of  the  courts  of  the  several  counties  except  ^^P^i'^^^ks^"'^'' 

2  Suffolk  may  designate  such  employees  in  their  offices,  as  in  their  judg-  i9i9. 246- 

3  ment  may  be  necessary  for  the  convenience  of  the  public,  as  deputy 

4  assistant  clerks  of  the  courts,  who  shall  ha-\'e  the  same  authority  to 

5  administer  oaths  as  the  assistant  clerks  of  the  courts. 

1  Section  8.     If  by  reason  of  illness  or  other  cause  the  clerk  of  the  Temporary 

2  coiu-ts  in  any  county,  or  of  the  supreme  judicial  court  in  Suffolk  county,  isli.^iss, 

3  is  unable  to  perform  his  duties,  and  there  is  no  assistant  clerk  or  he  also  iso9',^i'96,  §  9. 

4  is  unable  to  perform  the  duties  of  his  office,  the  justices  of  the  supreme  p  |;  J?g ;  |  fg 

5  judicial  court  may  appoint  a  temporary  clerk,  who  shall  perform  the  S-  ^- 1'^^-  5  ^■ 

6  duties  of  the  office  until  the  clerk  or  assistant  clerk  resumes  his  duties. 

7  The  justices  of  the  superior  com-t  may  appoint  a  temporary  clerk  if  a 

8  clerk  and  assistant  clerk  of  that  court  in  Suffolk  county  cannot  perform 

9  the  duties  of  the  office.    When  after  any  such  temporary  appointment 

10  the  clerk  or  assistant  clerk  resumes  his  duties,  he  shall  make  a  record  of 

11  that  fact,  -svith  the  date,  under  his  signature,  in  the  latest  book  of  records 

12  in  each  of  his  courts. 

1  Section  9.     If  an  assistant  clerk  of  the  courts  is  unable  to  perform  Temporary 

2  the  duties  of  his  office,  a  temporary  assistant  clerk  may  be  appointed  JflrkS"" 

3  in  the  same  manner  as  an  assistant  clerk  and  he  shall  perform  the  duties  r  a'lM.Wi. 

4  of  that  office  until  the  assistant  clerk  resumes  his  duties.  ^-  ^-  ^'^^^  ^  '•'• 

1  Section  10.     If  at  a  sitting  of  any  court  neither  the  clerk  nor  assist-  ^y  court"™' 

2  ant  clerk  is  present,  the  court  may  appoint  a  temporary  clerk,  \\ho  shall  Jf^"^'^"™"^ 

3  perform  the  duties  of  the  office  during  the  sitting  or  until  the  clerk  or  as-  isis.'s?. 

4  sistant  clerk  resumes  his  duties,  unless  an  appointment  under  one  of  the  8s,'f  is." 

5  two  preceding  sections  is  sooner  made  or  unless  a  new  clerk  has  qualified,  jj;  |;  HI;  1 1°; 

R.  L.  165,  §  10. 


2378 


CLERKS  OF  COUKTS. 


[Chap.  221. 


Clerks  to  be 
sworn. 
1782,  9,  §  5. 
1796,  95,  §  2. 
1799,81,  §  1. 
1811,8,  §  3. 
1815,  37. 


Section  11.    The  clerk,  assistant  clerk,  temporary  clerk  and  tempo  1 

rary  assistant  clerk  of  a  court  shall  be  sworn  before  a  justice  thereof,  2 

who  shall,  upon  administering  the  oaths  of  ofHce,  forthwith  make  return  3 

of  such  act  ysith  the  date  thereof  to  the  state  secretary.  4 


R.  S.  86,  §  8; 
88.  §M.  11. 
1850,  236,  §  1. 
1851,38,  §  1;  158,  I  2. 


1856,  37,  §  1. 
1859,  196,  §§  40,  41. 
G.  S.  121,  §  11. 
1863,  64,  §  2. 


P.  S.  1.59.  §  13. 

1894,  228. 

R.  L.  165,  §  11. 


Bonds  of 
clerks. 
1762,  3; 
24,  §  1. 
1786,  57,  §  1. 
1811,8,  §  3. 
1821,23,  §  3. 
R.  S.  88,  §  3. 
1850,  236,  §  1. 
1851,38,  §  1; 
158,  §  2. 
1856,  37,  §  3. 
1859,196,  5  41. 
G.  S.  121,  §  12. 
1863,  64,  I  2. 
P.  S.  159,  §  14. 
R.  L.  165,  §  12. 


Section  12.     The  clerk  and  assistant  clerk  of  the  supreme  judicial  1 

court  for  the  commonwealth  shall,  before  entering  upon  the  performance  2 

of  his  duties,  each  give  bond  in  the  sum  of  two  thousand  dollars  for  the  3 

faithful  performance  of  his  official  duties,  payable  to  the  state  treasurer,  4 

with  sufficient  surety  or  sureties  approved  by  the  court.     Each  clerk,  5 

assistant  clerk,  and  each  temporary  assistant  clerk  appointed  under  sec-  6 

tion  nine,  shall  give  bond  in  like  manner  to  the  county  treasurer,  in  a  7 

sum  not  less  than  five  hundred  nor  more  than  two  thousand  dollars,  to  8 

be  determined  by  the  court;  and  each  temporary  clerk  appointed  under  9 

section  eight  shall  gi^'e  bond  in  like  manner,  if  required  by  the  court.  10 


te?^'o1t''a?an'cy  SECTION  13.  Each  clerk  shall  forthwith  report  to  the  state  secretary 
as'?Santcierk  ^  vacancy  in  the  office  of  assistant  clerk,  and  shall  report  the  name  and 
is|o.  i39'i  3^    residence  of  the  person  appointed  to  fill  such  vacancy,  and  the  date  of  the    3 


R.  L.  165,  §  13.  expiration  of  the  term  of  service. 


1 

2 


General  duties 
of  clerks. 
1782,  9,  §  5. 
1786,  57. 
1811,8,  §  1. 
1830,  129,  I  2. 
R.  S.  88,  §  5. 
G.  S.  121,  §  13. 
P.  S.  159,  §  16. 


Section  14.  The  clerks  shall  attend  all  the  courts  of  which  they  are 
clerks  when  held  in  their  respective  counties,  and  the  sessions  of  the 
county  commissioners,  and  shall  record  their  proceedings;  and  shall  have 
the  care  and  custody  of  all  the  records,  books  and  papers  which  pertain 
to,  or  are  filed  or  deposited  in,  their  respective  offices.        R.  l.  i63,  §  14. 


Duties  of  clerk 
and  assistant 
clerk  of  the 
supreme  judi- 
cial court  in 
Suffolk. 
1887,  291.  §  2. 
R.  L.  165,  §  15. 
1907,  145,  §  1. 


Section  15.  The  clerk  or  the  assistant  clerk  of  the  supreme  judicial 
court  for  Suffolk  county  shall  act  as  clerk  of  the  supreme  judicial  court 
when  sitting  in  Boston  for  the  hearing  of  cases  from  any  other  county, 
except  when  sitting  as  a  full  court,  and  for  such  purposes  as  the  court 
may  order;  and  when  the  assistant  clerk  is  so  acting  his  attestation  as 
assistant  clerk  shall  be  sufficient  without  further  designation. 


Duties  of  clerk 

of  superior 

court  in 

Sufiolk. 

1896,413. 

R.  L.  165,  §  IG. 


Section  16.     The  clerk  of  the  superior  court  for  ci\il  business  in  Suffolk  1 

county,  or  such  assistant  clerk  of  said  court  as  the  justices  thereof  desig-  2 

nate  for  such  duty,  shall  act  as  clerk  of  said  court  when  sitting  in  Boston  3 

for  the  hearing  of  cases  from  any  other  county,  and  for  such  pm'poses  as  4 

the  court  may  order.  5 


Facsimile  of 

signature  of 

clerk. 

1885,  321. 

1880,  13. 

R.  L.  165,  §  20. 

1910,  94. 

Signature  of 
assistant  clerk. 
1889,  215. 


Section  17.     A  facsimile  of  the  signature  of  the  clerk  of  any  court  1 

in  the  commonwealth,  imprinted  by  him  upon  any  writ,  summons,  sub-  2 

poena,  order  of  notice  or  order  of  attachment,  except  executions,  shall  3 

have  the  same  validity  as  his  written  signature.  4 

The  name  of  an  assistant  clerk  of  any  court,  followed  by  the  designa-  5 

tion  "assistant  clerk"  shall  be  a  sufficient  official  signature.  6 

1895,  251.  1896,  413.  R.  L.  165,  §  21. 


Affidavits  in 
court  pro- 
ceedinps. 
1920, 209. 


Section  IS.  Any  affidavit  required  in  any  action  or  proceeding  1 
pending  in  any  court  in  the  commonwealth  may  be  made  and  sworn  to  2 
before  a  clerk  or  assistant  clerk  of  such  court.  3 


CH-^P.   221.]  CLERKS   OF  COURTS.  2379 

1  Section  19.    The  clerks  shall  cause  one  or  more  copies  of  all  appeals,  Forwarding 

2  bills  of  exceptions  and  reports  of  cases  in  which  the  attorney  general  ap-  attorney"^ '° 

3  pears  for  the  commonwealth  to  be  printed  and  forwarded  to  him  at  f|§S|^374. 

4  Boston  as  soon  as  may  be  after  they  have  been  allowed  and  filed.  ^^l'  f^f  j  ^^ 

1  Section  20.     When  a  rescript  is  filed  in  a  case  or  proceeding  in  the  Notice  ot 

2  supreme  judicial  court,  the  superior  court,  the  land  court,  or  the  municipal  5s69,''74. 

3  court  of  the  city  of  Boston,  the  clerk  or  recorder  of  such  court  shall  forth-  k.l/igWis. 

4  with  give  notice  thereof  to  an  attorney  of  record  of  each  party,  and  trans- 

5  mit  a  copy  of  such  rescript  to  the  reporter  of  decisions. 

1  Section  21.     When  judgment  is  entered  by  the  superior  court  upon  Notice  of 

2  a  demurrer  or  upon  a  case  stated,  or  when  a  decision  is  rendered  in  an  Isra"'™*' 

3  action  heard  without  a  jury,  the  clerk  shall  give  notice  thereof  to  the  fslg,  357.^  ^' 
4l  parties  or  their  attorneys.  R.  l.  les,  §  19. 

1  Section  22.     A  clerk  of  the  coiu-ts  may  issue  any  order  of  notice  cierks  may 

2  upon  any  petition  or  other  proceeding  at  law  or  in  equity  which  might  oTnot^cl'"^'' 

3  be  issued  by  the  court;  but  the  court  or  a  justice  thereof  may  cause  p*^s.'f59,'§  17. 

4  additional  notice  to  be  given.  R.  l.  i65,  §  22. 

1  Section  23.    Each  clerk  shall  keep  an  alphabetical  list  of  the  names  Alphabetical 

2  of  all  parties  to  every  action  or  judgment  recorded  in  the  records  and  a  1786, 57""*^' 

3  reference  to  the  book  and  page  thereof;   and,  if  there  are  two  or  more  r  s'.l's,  §7. 

4  plaintiffs  or  defendants,  the  name  of  each  and  a  Uke  reference  shall  be  pfifg'lig' 

5  inserted  in  its  appropriate  place  in  the  alphabetical  list.  R-  l.  les,  §  23. 

1  Section  24.     The  clerks  of  the  courts  for  the  several  counties  and  the  cierks  to 

2  clerk  of  the  superior  court  for  civil  business  in  Suffolk  county  shall  annu-  "Jurns'S""' 

3  ally  in  July  make  returns  for  the  last  preceding  year  ending  June  thir-  secrltlrv. 

4  tieth  to  the  state  secretary,  upon  suitable  blank  forms  provided  by  him,  isos,  321, 5 1. 

5  of  the  number  of  jury  cases,  of  jury  waived  cases  and  of  equity  suits, 

6  pending  at  the  beginning  of  each  year  in  the  superior  court  in  their  re- 

7  spective  coimties;   of  the  number  of  each  of  said  three  classes  of  cases 

8  entered  during  the  year;   of  the  number  of  cases  of  each  class  actually 

9  tried  during  the  year;  of  the  number  of  cases  of  each  class  disposed  of 

10  during  the  year  by  agreement  of  the  parties  or  by  order  of  the  court; 

11  of  the  number  of  cases  of  each  class  remaining  untried  at  the  end  of 

12  the  year;   of  the  number  of  cases  wherein  the  verdict  of  the  jury  has 

13  been  set  aside  by  the  coiu-t  on  the  ground  that  it  was  excessive;  and  of 

14  the  number  of  days  during  which  the  coiu-t  has  sat  in  their  respective 

15  counties  for  the  hearing  of  each  of  said  tlu-ee  classes  of  cases. 

1  Section  25.      The  clerks  of    the  courts  and  in  Suffolk  county  the  Preservation 

2  clerk  of  the  superior  court  for  civil  business  shall  receive  and  safely  keep  ^riaf'jus'tfcel 

3  the  dockets,  records  and  other  official  papers  of  trial  justices  which  may  R.L:i65;t24. 

4  be  deposited  in  their  offices  under  section  eleven  of  chapter  two  hundred 

5  and  nineteen,  and  shall  make  and  certify  copies  thereof  which  shall  have 

6  the  same  effect  as  if  certified  by  trial  justices.    They  shall  be  allowed 

7  the  same  fees  for  making  such  copies  as  are  allowed  to  them  in  similar 

8  cases. 


2380 


CLERKS   OF  COUETS. 


[CiLiP.   221. 


Clerks  to 
report  con- 
victions of 
registered 
physicians  or 
of  unregistered 
practitioners, 
etc. 

1916,  304, 
§§1.2. 


Section  26.    The  clerk  of  any  court  in  which  a  physician  registered  1 

in  this  commonwealth  is  convicted  of  a  felony  or  of  a  crime  in  connec-  2 

tion  with  the  practice  of  medicine,  or  in  which  an  unregistered  practi-  3 

tioner  is  convicted  of  holding  himself  out  as  a  practitioner  of  medicine,  4 

or  of  practicing  medicine,  shall  within  one  week  thereafter  report  the  5 

same  to  the  board  of  registration  in  medicine  together  with  a  copy  of  6 

the  court  proceedings  in  the  case.    Failure  to  comply  with  this  section  shall  7 

be  punished  by  a  fine  of  not  less  than  one  nor  more  than  ten  dollars.  8 


Extension  of 
papers  on 
records. 
1879,  268. 
P.  S.  159,  §  19. 
R.  L.  165,  §  25. 
1917,  206. 

235  Mass.  587. 

236  Mass.  500. 


Section  27.     The  supreme  judicial  court  shall  by  general  rule  or  1 

special  order  direct  in  what  manner  and  to  what  extent,  if  any,  the  papers  2 

in  causes  which  are  entered  in  said  court  or  in  the  superior  court  shall  3 

be  extended  upon  the  records,  after  final  judgment  or  otherwise,  and  4 

shall  be  a  final  record.    Such  rule  or  order  shall  specify  whether  such  5 

extension  shall  be  in  whole  or  in  part,  shall  be  in  long  hand,  tj'pe-nTiting,  6 

print  or  otherwise,  or  shall  consist  of  the  filing  of  original  papers  in  such  7 

causes  by  loose  leaf  system  or  otherwise.  8 


Clerk  to 

exhibit 

records. 

R.  S.  88,  §  11. 

G.  S.  121,  §  15. 

P.  S.  159,  §  20. 

R.  L.  165,  §  26. 


Section  28.     The  clerks  of  the  courts  in  the  several  counties  and  of  1 

the  supreme  judicial  and  superior  courts  in  Suffolk  county  shall  at  the  2 

first  sitting  in  each  year  of  the  supreme  judicial  court  in  their  counties  3 

exhibit  their  latest  books  of  records  to  a  justice  of  the  court,  who  shall  4 

cause  errors  and  defects  therein  to  be  corrected.  5 


Justices  to 
inspect  records. 
1762,  3;  24,  §  4. 
1786,  57,  §  4. 
R.  S.  88,  §  8. 
G.  S.  121,  §  16. 
P.  S.  159,  §  21. 
R.  L.  165,  §  27. 


Section  29.     The  justices  of  the  several   courts  shall  inspect  the  1 

doings  of  the  clerks  from  time  to  time,  and  shall  see  that  the  records  are  2 

made  up  seasonably  and  kept  in  good  order;  and  if  the  records  are  left  3 

incomplete  for  more  than  six  consecutive  months,  such  neglect  unless  4 

caused  by  illness  or  casualty  shall  be  adjudged  a  forfeiture  of  the  bond  5 

of  the  clerk.  6 


Forfeiture 

of  bond. 

1762,  3;  24,  5  4, 

1786,  57,  §  4. 

R.  S.  88, 

§§  9,  10. 

G.S.  121, 

§§  17,  18. 

P.  S.  159, 

§§  22,  23. 

R.  L.  165,  §  28. 


Section  30.     If  any  neglect  causes  a  forfeiture  of  the  bond  of  a  clerk  1 

or  assistant  clerk,  the  justices  shall  forthwith  give  -uTitten  notice  thereof  2 

to  the  treasurer  having  custody  thereof,  who  shall  thereupon  cause  suit  3 

to  be  brought  thereon.     The  amount  recovered  in  such  suit  shall  be  4 

applied  to  the  expense  of  making  up  the  deficient  records  under  the  direc-  5 

tion  of  the  court  in  whose  records  the  deficiency  exists,  and  the  surplus,  6 

if  any,  shall  be  carried  into  the  account  of  such  treasurer.  7 


Liabihty  for  .QTrrTTniw  "^1 

other  breaches.  OECllON   01. 

Gs'i2iS^i9    iissistant  clerk  from  an  action  for  any  other  breach  of  the  condition  of 

R  L  \65'  III'   ^^^  bond  or  from  his  liability  in  any  other  way  or  to  any  party  for  neg-    3 

lect  or  misconduct  in  his  office.  4 


The  two  preceding  sections  shall  not  exempt  a  clerk  or     1 

2 


Clerk  to 

account  for 
fees,  etc. 
1811,8,  §2.   , 
1813,  77,  §  2. 
1820,  84,  I  1. 
1830,  129,  §  3. 
1835,  124,  I  2. 
R.  S.  88,  §  16.  . 
G.  S.  121,  §  22. 
1879,  300,  §  1. 
P.  S.  169,  §  27. 

1887,  291,  §  1. 

1888,  257,  §  4. 
1891,  236. 

R.  L.  165,  §31. 


Section  32.     The  clerks  of  the  courts  in  the  several  counties,  and  of  1 

the  supreme  judicial  and  superior  courts  in  Sufi'oLk  county,  shall  keep  2 

cash  books,  which  shall  be  county  property  and  shall  be  and  remain  3 

a  part  of  the  records  of  the  courts,  in  which  they  shall  keep  accounts  4 

of  all  fees  received  by  them  for  their  official  acts  and  services,  includ-  5 

ing  fees  for  copies  which  they  are  not  required  by  law  to  furnish,  fees  6 

and  money  in  proceedings  relative  to  naturalization  or  for  naturaUzation  7 

certificates,  and  all  fees  and  money  of  whatever  description  or  character  8 

received  by  them,  or  by  any  assistant  or  other  person  in  their  offices  or  9 


Ch.\P.   221.]      CLERKS,  ATTORNEYS   Xmi  OTHER  OFFICERS  OF  COURTS.  2381 

10  employment,  for  any  acts  done  or  services  rendered  in  connection  with  i90s,  253. 

11  their  said  offices,  and  shall  on  or  before  the  tenth  day  of  each  month  pay  207^^/353.  wv. 

12  over  to  the  treasurers  of  their  respective  counties,  or  to  such  other  officers  531  u.^a'eeg. 

13  as  are  entitled  to  receive  them,  all  fees  received  during  the  preceding 

14  calendar  month,  and  shall  render  therewith  a  sworn  account  thereof; 

15  provided,  that  said  clerks  shall  account  for  and  pay  over  to  the  United 

16  States  bureau  of  naturalization  in  accordance  with  the  federal  laws  as 

17  to  naturalization  such  part  of  any  moneys  received  by  them  under  or  by 

18  authority  of  such  laws  as  they  are  required  thereby  to  account  for  and 

19  pay  over,  and  they  may  retain  that  part  of  any  moneys  so  received,  in 

20  so  far  as  such  retention  is  authorized  thereby;    but  from  the  moneys  so 

21  retained  they  shall  pay  all  additional  clerical  force  required  in  performing 

22  the  duties  imposed  by  such  laws. 

1  Section  33.     Each  assistant  clerk  shall  under  the  direction  of  the  Duties  of 

2  clerk  perform  any  of  the  duties  of  the  clerk  and  shall  pay  over  to  him  ciMk!*"' 

3  all  fees  and  amounts  received  as  such  assistant.    In  the  absence  or  upon  J||?;  ss^si^' 

4  the  resignation,  death  or  removal  of  the  clerk,  the  assistant  clerk  shall  }f^^'  ^|j  s  ^■ 

5  perform  his  duties  under  the  direction  of  the  court  untU  he  returns  or  § JJ^o,  21! 

6  until  a  new  clerk  has  qualified,  and  upon  the  death,  removal  or  resigna-  P-  s.'iso,' 

7  tion  of  the  clerk,  the  assistant  clerk  shall  account  with,  and  pay  over  the  r.  l.  le's,  §  so. 

8  money  in  his  hands  to,  the  officer  to  whom  the  clerk  is  by  law  required  ^^  °^^^'  '*' 

9  to  account. 

1  Section  34.    A  clerk  of  courts  having  in  his  custody  money  or  divi-  Disposition  of 

r»iii>'i  •!!  •  in»*        unclaimed 

2  dends  or  an  insolvent  savmgs  bank  or  msurance  company  whose  affairs  funds. 

3  have  been  wound  up  in  his  court,  remaining  unclaimed  for  more  than  r.  l!  ms.  §  32. 

4  ten  years  after  the  order  of  final  settlement  by  the  court,  shall,  after  ^^^  '  ^  •  ^ ^ '• 

5  deducting  all  amounts  due  him,  the  county  or  the  commonwealth  for 

6  fees  or  expenses,  pay  the  balance  to  the  state  treasurer  and  file  with  him  a 

7  schedule  of  the  names  and  residences,  so  far  as  knowTi  to  liim  or  shown 

8  by  the  record,  of  the  parties  entitled  thereto.    The  fees  and  expenses  so 

9  deducted  shall  be  audited  and  adjusted  by  the  director  of  accounts  and 

10  paid  forthwith  to  the  persons  entitled  thereto.    After  the  payment  of 

11  fees  and  expenses,  and  of  the  balance  to  the  state  treasurer,  the  liability 

12  of  the  clerk  for  such  money  and  di\idends  shall  cease.   The  state  treasurer 

13  shall  hold  such  funds  in  trust  for  two  years;  and  if  they  are  not  paid  by 

14  liim  witliin  that  time  to  the  persons  entitled  thereto,  upon  proper  demand 

15  and  satisfactory  evidence  of  the  identity  of  the  claimant  and  of  the  jus- 

16  tice  of  the  claim,  they  shall  escheat  to  the  commonwealth. 

BAR  EXAMINERS. 

1  Section  35.    There  shall  be  a  board  of  bar  examiners  consisting  of  f'g''g'7°'5o^7i- 

2  five  persons,  residing  in  different  counties,  one  of  whom  shall  annually  k.  l.  les,  §  39. 

3  be  appointed  by  the  justices  of  the  supreme  judicial  court  for  a  term  of 

4  five  years  from  October  first  in  the  year  of  his  appointment,  and  who  may 

5  be  removed  by  them.    Such  justices  may  fill  vacancies. 

1  Section  36.     Said  board  may,  subject  to  the  approval  of  the  supreme  Admission 

2  judicial  court,  make  rules  with  reference  to  examinations  for  admission  attorney"  ° 

3  to  the  bar  and  the  qualifications  of  applicants  therefor,  and  determine  Exjfc^'aes, 

4  the  time  and  place  of  such  examinations,  and  conduct  the  same;  provided,  ilgy^sos  §  3 


2382 


CLERKS,  ATTORNEYS  AND  OTHER  OFFICERS   OF  COURTS.      [CH-^P.   221. 


1898,  312. 

R.  L.  165,  §  40. 

19(M,  355,  §  1. 

1914,  670. 

1915,  249. 
220  Mass.  472. 


Petition  for 
examination 
for  admission 
as  an  attorney, 

17SS.  23,  §  1. 
1795.  80,  I  4. 
R.  S.  SS, 
§5  19,  20,  23. 
1852,  154. 
G.  S.  121, 
5§  28,  29,  32. 
1876,  197. 
P.  S.  159, 
§§  34,  37. 
1882,  139. 
1888,  257,  5  5. 

1897,  508,  §  2. 

1898,  384. 

R.  L.  165,  §  41. 
1904,  355,  §  2. 
6  Mass.  382. 
10  Met.  239. 
121  Mass.  600. 
131  Mass.  370. 


that  any  applicant  for  admission  to  the  bar  who  is  a  graduate  of  a  college  5 
or  who  has  complied  with  the  entrance  requirements  of  a  college,  or  who  6 
has  fulfilled  for  two  years  the  requirements  of  a  day  or  e^-ening  high  7 
school  or  of  a  school  of  equal  grade,  shall  not  be  required  to  take  any  8 
examination  as  to  his  general  education.  The  expenses  of  said  board,  as  9 
certified  by  its  chairman  and  approved  by  a  justice  of  the  supreme  10 
judicial  court,  shall  be  paid  by  the  commonwealth,  together  with  such  11 
compensation  to  each  member  as  the  justices  of  the  supreme  judicial  12 
court  appro^•e,  but  said  expenses  and  compensation  shall  not  be  in  13 
excess  of  the  amounts  paid  to  the  commonwealth  imder  the  following  14 
section.  15 

ATTORNEYS   AT   L.\W. 

Section  37.  A  citizen  of  the  United  States,  or  an  alien  who  has  made  1 
the  primary  declaration  of  intention  to  become  a  citizen  thereof,  whether  2 
man  or  woman,  may,  if  over  twenty-one,  file  a  petition  in  the  supreme  3 
judicial  or  superior  court  to  be  examined  for  admission  as  an  attorney  4 
at  law,  and,  if  found  qualified,  to  be  admitted  as  such;  whereupon,  unless  5 
the  court  otherwise  orders,  the  petition  shall  be  referred  to  the  board  of  6 
bar  examiners  to  ascertain  his  acquirements  and  qualifications.  If  the  7 
board  reports  that  the  petitioner  is  of  good  moral  character  and  of  suffi-  8 
cient  acquirements  and  qualifications,  and  recommends  his  admission,  he  9 
shall  be  admitted  unless  the  court  otherwise  determines,  and  thereafter  10 
may  practice  in  all  the  courts  of  the  commonwealth.  The  petitioner  shall  11 
pay  to  the  clerk  of  the  court  in  which  his  petition  is  filed  a  fee  of  fifteen  12 
dollars  upon  the  entry  thereof,  and  a  further  fee  of  ten  dollars  upon  the  13 
entry  of  any  subsequent  petition.  Such  fees  shall  be  paid  over  to  the  14 
commonwealth.  15 


Oath  of  office. 
Const, 
amend.  6. 
(Const.  Rev. 
art.  149.) 
1701-2,  7,  I  2. 
1785,  23,  §  1. 
R.  S.  88, 
§121,22. 
G.  S.  121. 
H  30,  31. 
P.  S.  159, 
H  35,  36. 
R.  L.  165,  §  42. 


Section  38.     ^Mioever  is  admitted  as  an  attorney  shall  in  open  court  1 

take  and  subscribe  the  oaths  to  support  the  constitution  of  the  United  2 

States  and  of  the  commonwealth;   and  the  following  oath  of  office  shall  3 

be  administered  to  and  subscribed  by  him:  4 

I  (repeat  the  name)  solemnly  swear  that  I  will  do  no  falsehood,  nor  consent 
to  the  doing  of  any  in  court;  I  will  not  wittingly  or  willingly  promote  or  sue 
any  false,  groundless  or  unla^\iul  suit,  nor  give  aid  or  consent  to  the  same;  I 
will  delay  no  man  for  lucre  or  malice;  but  I  will  conduct  myself  in  the  office 
of  an  attorney  within  the  courts  according  to  the  best  of  my  knowledge  and 
discretion,  and  with  aU  good  fideUty  as  well  to  the  courts  as  my  clients.  So 
help  me  God. 


Admission  of 
attorneys  from 
other  states, 
etc. 

R.  S.  88.  §  24. 
G.  S.  121,  §  33. 
P.  S.  159,  §  38. 
R.  L.  165,  §43. 
1904,  355,  §  3. 


Section  39.     A  citizen  of  the  United  States,  or  an  alien  who  has  made  1 

the  primary  declaration  of  intention  to  become  a  citizen  thereof,  whether  2 

man  or  woman,  who  has  been  admitted  as  an  attorney  or  counsellor  of  3 

the  highest  judicial  court  of  any  state,  district,  territory  or  country  of  4 

which  he  was  an  inhabitant  may,  upon  petition  to  the  supreme  judicial  5 

or  the  superior  court  be  admitted  to  practice  in  all  the  courts  of  the  6 

commonwealth  upon  the  production  of  satisfactory  e\'idence  of  his  good  7 

moral  character  and  professional  qualifications.  8 


Removal. 

R.  S.  88,  §  25. 

G.  S.  121,  §34. 

P.  S.  159.  I  39. 

R.  L.  165,  §  44. 

1919,  260. 

11  AUen,  472, 

473. 

126  Mass.  222. 


Section  40.  An  attorney  may  be  removed  by  the  supreme  judicial 
or  superior  court  for  deceit,  malpractice  or  other  gross  misconduct, 
and  shall  also  be  liable  in  damages  to  the  person  injured  thereby, 
and  to  such  other  punishment  as  may  be  provided  by  law;  and  the  ex- 
penses and  costs  of  the  inquiry  and  proceedings  in  either  court  for  the 


CeLVP.   221.]      CLERKS,  ATTORNEYS  AND   OTHER  OFFICERS   OF  COUETS.  2383 

6  removal  of  an  attorney  shall  be  paid  as  in  criminal  prosecutions  in  the  137  Masa.  424. 

7  superior  court.    Whenever  a  petition  is  filed  for  the  removal  of  an  at-  \m  mIII'.  Im. 

8  torney  the  proceedings  thereafter  shall  be  conducted  by  the  attorney  l°l  HlH]  lll[ 

9  general,  or  such  person  as  he  may  designate  with  the  approval  of  the  |}J  Hm-  Jf^- 
10  court;  but  such  person  shall  receive  no  compensation  for  lus  services.        |i|  m"^''' leg" 

1  Section  41.     Whoever  has  been  so  removed  and  continues  thereafter  Penalties  on 

2  to  practice  law  or  to  receive  any  fee  for  his  services  as  an  attorney  at  unauthofi^d 

3  law  rendered  after  such  removal,  or  who  holds  himself  out,  or  who  rep-  for'TolStiSg'' 

4  resents  or  advertises  himself  as  an  attorney  or  counsellor  at  law,  or  'jsgi'^Tis'^^' 

5  whoever,  not  having  been  lawfully  admitted  to  practice  as  an  attorney  R  l'  i^s.  §  45. 

6  at  law,  represents  himself  to  be  an  attorney  or  counsellor  at  law,  or  to  wn',  267! 

7  be  lawfully  quahfied  to  practice  in  the  courts  of  the  commonwealth,  by  211  Mass!  375! 

8  means  of  a  sign,  business  card,  letter  head  or  otherwise,  or  holds  himself  227  Mass!  579! 

9  out  or  represents  or  advertises  himself  as  having  authority  or  power  in  233  Mass!  les. 

10  behalf  of  persons  who  have  claims  for  damages  to  procure  settlements 

1 1  of  such  claims  for  damages  either  to  person  or  property,  or  whoever,  not 

12  being  an  attorney  at  law,  solicits  or  procures  from  any  such  person  or  his 

13  representative,  either  for  himself  or  another,  the  management  or  control 

14  of  any  such  claim,  or  authority  to  adjust  or  bring  suit  to  recover  for  the 

15  same,  or  solicits  for  himself  or  another  from  a  person  accused  of  crime 

16  or  his  representative  the  right  to  defend  the  accused  person,  shall  be 

17  punished  for  a  first  offence  by  a  fine  of  not  more  than  one  hundred  dol- 

18  lars  or  by  imprisonment  for  not  more  than  six  months,  and  for  a  sub- 

19  sequent  oft'ence  by  a  fine  of  not  more  than  five  hundred  dollars  or  by 

20  imprisonment  for  not  more  than  one  year. 

1  Section  42.    The  clerk  of  the  supreme  judicial  court  for  Suffolk  Records  to  be 

2  county  shall  cause  to  be  made,  and  shall  keep,  a  complete  record  in  suita-  stTndmg  of  " 

3  ble  form  of  all  persons  who  are,  or  ever  have  been,  or  hereafter  become,  fa""™"^^ "' 

4  attorneys  at  law  in  this  commonwealth,  and  of  the  suspension,  removal  ^*^i^'  ''^■ 

5  or  disbarment  of  such  as  have  been  or  hereafter  shall  be  suspended, 

6  removed  or  disbarred.     Clerks  of  courts  and  other  persons  in  whose 

7  custody  there  may  be  any  record  of  an  admission  to  the  bar  of  an  attor- 

8  ney  at  law,  any  record  of  a  petition  for  suspension  or  removal  therefrom, 

9  or  of  a  judgment  or  decree  of  suspension  or  removal  from  practice  of  any 

10  attorney  at  law,  shall  within  one  month  after  the  date  of  such  record 

11  report  the  same  to  the  clerk  of  the  su]Dreme  judicial  coiu-t  for  Suffolk 

12  county.    The  record  of  said  clerk  relative  to  an  admission  to  the  bar, 

13  or  a  suspension  or  removal  therefrom,  shall  be  prima  facie  evidence  of 

14  the  facts  recorded.    A  certificate  thereof  signed  by  the  clerk  or  assistant 

15  clerk  shall  be  admissible  as  evidence  of  such  record. 

1  Section  43.     No  attorney  at  law  shall  through  any  runner,  agent  or  Attorneys  at 

2  person  who  is  employed  by  him  solicit  a  person  to  employ  him  to  present  fj^nfediatmg 

3  a  claim  for  damages,  or  to  prosecute  an  action  to  enforce  such  a  claim,  and  f ,"'^1'^°^;™™' 

4  no  attorney  at  law  shall  directly  or  indirectly  give  or  promise  any  person  'j'jjgi''^^|-  §  j 

5  any  money,  fee,  commission,  profitable  employment  or  other  personal  214  Mass.  aii. 

6  advantage  in  consideration  of  his  employing  such  attorney  on  behalf 

7  of  a  person  having  a  claim  for  damages,  or  soliciting  or  procuring  the 

8  person  who  has  such  claim  to  employ  such  attorney  to  present  such  claim 

9  or  to  prosecute  an  action  for  the  enforcement  thereof.     No  attorney 

10  shall  appear  in  any  suit  for  the  enforcement  of  a  claim  in  connection 

11  with  which  he  has  violated  this  section. 


2384 


CLERKS,  ATTORNEYS  AND   OTHER   OFFICERS  OF  COURTS.      [CiLYP.   221. 


May  be  dis- 
qualified in 
certain  cases, 
for  violating 
section  43. 
1907,  443,  §  2. 


Section  44.     If  it  appears  to  the  satisfaction  of  the  court  that  an  at-  1 

torney  ■whose  appearance  has  been  entered  in  any  suit  has  in  connection  2 

therewith  violated  the  preceding  section,  such  attorney  may  in  the  dis-  3 

cretion  of  the  court  be  disqualified  from  fiu"ther  acting  in  said  suit,  and  4 

the  court  may  make  an  order  for  continuance,  or  for  another  and  speedy  5 

trial,  or  such  other  order  for  the  protection  of  the  interests  of  the  parties,  6 

as  justice  may  require,  and  may  deny  the  right  to  collect  costs  whoOy  or  7 

in  part  to  any  party  to  the  suit.  8 


Sheriff,  etc., 
not  to  act  as 
attorney. 
1736-7,  3. 
1742-3,  25. 
175S-9,  14. 
1783.  44,  §  3. 
1822,  20. 
R.  S.  14, 
|§  79,  80;  88, 
§1  29,  30. 
G.  S.  17,  §  64; 
121,  §  40. 


Section  45.     A  sheriff,  deputy  sheriff  or  constable  who  appears  in  1 

court  as  attorney  for  any  party  to  a  suit,  or  draws,  makes  or  fills  up  a  2 

WTit,  declaration,  plea  or  process  for  such  party,  or,  with  intent  to  pro-  3 

cure  laimself  to  be  employed  in  the  collection  of  a  demand,  or  in  any  4 

manner  to  make  gain  or  profit  therefrom,  advises,  counsels  or  encourages  5 

a  person,  directly  or  indirectly,  to  commence  a  suit  or  process  shall  for-  6 

feit  fiftv  dollars.  7 


p.  S.  159,  I  45. 


R.  L.  163,  §  51. 


6  Pick.  483. 


10  Pick.  45. 


Corporations 
not  to  practice 
law. 

1916.  292, 
5§  1-3. 


Section  46.  No  corporation  shall  practice  or  appear  as  an  attorney  1 
for  any  person  other  than  itself  in  any  court  in  the  commonwealth  or  2 
before  any  judicial  body  or  hold  itself  out  to  the  public  or  advertise  as  3 
being  entitled  to  practice  law,  and  no  corporation  shall  draw  agreements,  4 
or  other  legal  documents  not  relating  to  its  lawful  business,  or  draw  wills,  5 
or  practice  law,  or  hold  itself  out  in  any  manner  as  being  entitled  to  do  6 
any  of  the  foregoing  acts,  by  or  tlirough  any  person  orally  or  by  adver-  7 
tisement,  letter  or  circular;  provided,  that  the  foregoing  shall  not  pre-  8 
vent  any  bank  or  trust  company  lais-fully  doing  business  in  the  common-  9 
wealth  from  furnisliing  to  persons  with  whom  it  may  deal  or  who  may  10 
apply  for  the  same,  through  its  officers  or  agents,  legal  information  or  11 
legal  advice  with  respect  to  investments,  taxation,  or  an  issue  or  offering  12 
for  sale  of  stocks,  bonds,  notes  or  other  securities  or  property,  nor  shall  13 
ami:liing  herein  prohibit  a  corporation  from  employing  an  attorney  in  14 
regard  to  its  owti  affairs  or  in  any  litigation  to  wliich  it  is  or  may  be  15 
a  party.  Any  corporation  violating  this  section  shall  be  punished  by  a  16 
fine  of  not  more  than  one  thousand  dollars;  and  every  officer,  agent  or  17 
employee  of  any  such  corporation  who,  on  behalf  of  the  same,  directly  or  18 
indirectly,  engages  in  any  of  the  acts  herein  prohibited,  or  assists  such  19 
corporation  to  do  such  proliibited  acts,  shall  be  punished  by  a  fine  of  not  20 
more  than  five  hundred  dollars.  21 


Same  subject. 

1916,  292,  §  4. 

1917,  168. 


Section  47.    The  preceding  section  shall  not  apply  .to  any  public  1 

se^^^ce  corporation  or  to  any  corporation  lawfully  engaged  in  the  e.xam-  2 

ination  and  insurmg  of  titles  to  real  property,  or  lawfully  engaged  in  the  3 

business  of  insurance  against  liability  for  damages  or  compensation  on  4 

account  of  injury  to  persons  or  property,  or  lawfully  engaged  in  assist-  5 

ing  attorneys  to  organize  corporations,  or  organized  for  and  lawfully  6 

engaged  in  benevolent  or  charitable  purposes,  or  organized  under  the  au-  7 

thority  of  the  commonwealth  for  the  purpose  of  assisting  persons  without  8 

means  in  the  pursuit  of  any  civil  remedy,  or  prohibit  a  newspaper  from  9 

answermg  inquiries  tlorough  its  columns  or  any  corporation  from  pro-  10 

viding  legal  advice  or  assistance  to  its  employees,  or  a  corporation  law-  11 

fully  engaged  in  the  business  of  conducting  a  mercantile  or  collection  12 

agency  or  adjustment  bureau  from  employing  an  attorney  to  give  legal  13 


Chap.  221.]    clerks,  attorneys  and  other  officers  of  courts.  2385 

14  advice  concerning,  or  to  prosecute  actions  in  court  relating  to,  the  ad- 

15  justment  or  collection  of  debts  and  accounts  only. 

1  Section  48.     Parties  may  manage,  prosecute  or  defend  their  owti  Parties  may 

2  suits  personally,  or  by  such  attorneys  as  they  may  engage;  but  not  more  JI^^^buHs.  ""^ 

3  than  two  persons  for  each  party  shall,  without  permission  of  the  court,  Iroslg;  3,'  1 1'. 

4  be  allowed  to  manage  any  case  therein.  1714, 3,  §  2. 


1785,  23,  §  2. 

R.  S.  88,  §  26. 

P.  S.  159,  §  40. 

1789,  58. 

G.  S.  121,  §35. 

R.  L.  165,  §  46. 

1  Section  49.     Any  person  of  good  moral  character,  unless  he  has  been  Persons  sne- 

2  removed  from  practice  as  an  attorney  under  section  forty,  may  man-  C^.^etc. 

3  age,  prosecute  or  defend  a  suit  if  he  is  specially  authorized  by  the  party  ^  *|;  Hi  5  27. 

4  for  whom  he  appears,  in  WTiting  or  by  personal  nomination  in  open  court.  fgg|_  gj|'  ^  ^®- 

p.  S.  159,  5  41.  R.  L.  165,  5  47. 

1  Section  50.    An  attorney  who  is  lawfully  possessed  of  an  execution.  Attorney's 

2  or  who  has  prosecuted  a  suit  to  final  judgment  in  favor  of  his  client,  shall  et™  °'^  '^'^^' 

3  have  a  lien  thereon  for  the  amount  of  his  fees  and  disbursements  in  the  \llo]  foi, 

4  cause,  but  this  section  shall  not  prevent  the  payment  of  the  execution  or  §;  |  ili^^fy. 

5  judgment  to  the  judgment  creditor  by  a  person  who  has  no  notice  of  the  ^  ^  ^^^^  i*|- 

6  lien.  5  Mass.  309.  11  Mass.  236.  13  Mass.  525. 

4  Gray,  357.  176  Mass.  161.  211  Mass.  406. 

103  Mass.  33.  208  Mass.  195.  213  Mass.  203. 

1  Section  51.    An  attorney  at  law  who  unreasonably  neglects  to  pay  Penalty  for 

2  over  money  collected  by  him  for  and  in  behalf  of  a  client,  when  demanded  ^  ri^ent"^  °^" 

3  by  the  client,  shall  forfeit  to  such  client  five  times  the  lawful  interest  of  g.*s.'i2i,'|38. 

4  the  money  from  the  time  of  the  demand. 

p.  S.  159,  §  43.  R.  L.  165,  §  49.  216  Mass.  169. 

1  Section  52.    No  person  shall  be  employed  or  allowed  to  appear  as  Attorney  not  to 

2  attorney  before  a  court  in  any  proceeding,  civil  or  criminal,  which  shall  preyfousi'y 

3  have  been  previously  determined  before  him  as  a  judge  of  any  court  or  il^f'^  ^^ 

4  as  a  trial  justice.  1705-6, 7,  §  2. 

1815,  49,  I  1.  G.  S.  121,  §  39.  1S84,  170. 

R.  S.  89,  §  8.  P.  S.  159,  §  44.  R.  L.  165,  §  SO. 


masters,  atjditors,  referees,  assessors,  etc. 

1  Section  53.    The  governor,  with  the  advice  and  consent  of  the  coun-  Masters  in 

2  cil,  shall,  as  vacancies  occur,  appoint  masters  in  chancery,  who  may  act  i826,'^io9.  §  4. 

3  throughout  the  commonwealth,  so  that  the  number  thereof  in  the  several  ^2.^  **'  ^*  ^'' 

4  counties  shall  be  twelve  in  Suffolk,  eleven  in  Essex,  eleven  in  Middlesex,  j:|||;  ^^^-73 

5  seven  in  Worcester,  six  in  Norfolk,  and  not  more  than  five  in  any  other  J|*|'  ||^ 

6  county.     They  shall  be  sworn,  and  shall  hold  their  offices  for  five  years,  g.  s.'  121,'  5  41. 


1868,  185. 

1904,  348. 

113  Mass.  139. 

1873,  365. 

1905,  110. 

115  Mass.  170. 

1874,  1. 

1906,  187. 

131  Mass.  204. 

1879,  142. 

1914,  411. 

216  Mass.  426. 

p.  S.  159,  §  46. 

1915,  304. 

3  Op.  A.  G.  186. 

R.  L.  165,  §  52. 

1916,  70. 

4  Op.  A.  G.  457. 

1  Section  54.     A  master  may  complete  any  unfinished  proceedings  and  ^^"',!;.'^''g''™  °^ 

2  processes  pending  before  him  or  commenced  under  his  direction  not-  comnnosion 

3  withstanding  the  expiration  of  his  commission.  1844,  i38. 

G.  S.  121,  §45.  P.  S.  159,  §50.  R.  L.  165,  §53. 


2386 


CLERKS,  ATTORNEYS   AND   OTHER   OFFICERS   OF  COtlRTS.      [ChAP.   221. 


Compensation 
of  masters,  etc. 
1S83,  216. 

1886,  51. 

1887,  289. 
1899,458. 
1901,  366. 

R.  L.  165,  §  54. 

1918,  257, 
§423. 

1919,  5. 

1920,  2. 

183  Mass.  254. 
185  Mass.  535. 
216  Mass.  426. 


Section  55.     The  supreme  judicial  or  superior  court  shall  award  1 

reasonable  compensation  to  commissioners,  assessors,  referees,  masters  2 

in  chancery  and  special  masters,  for  duties  performed  under  the  direction  3 

of  said  court,  and  to  arbitrators  appointed  under  chapter  two  hundred  4 

and  fifty-one  upon  whose  awards  judgment  is  entered,  which  shall  be  5 

paid  by  the  counties  in  which  they  are  appointed.    Reasonable  travel-  6 

ing  expenses  shall  also  be  allowed  in  the  same  manner  as  is  provided  7 

for  auditors.  8 


Auditors. 
Appointment, 
finciinga,  etc. 
1817,  142. 
R.  S.  96, 
§§  25,  30. 
1856,  202. 
G.  S.  121,  §  46. 
1863,  197,  §  1. 
P.  S.  159,  §  51. 
R.  L.  165,  §  55. 
1914,  576.  I  2. 
11  Pick.  359. 

I  Met.  216. 

II  Met.  297. 

7  Gush.  445. 

9  Gush.  329. 

8  Grav,  545. 

10  Gray,  379. 

13  Gray,  150. 

15  Gray,  351. 

16  Gray,  396. 
1  Allen,  53, 
277. 

9  Alien,  181, 
502: 

10  Allen,  32. 

14  Allen,  222. 
100  Mass.  153, 
191. 


Section  56.  Wlien  a  civil  action  is  at  issue,  the  supreme  judicial  or  1 
superior  court,  in  its  discretion,  and  a  district  court,  if  both  parties  assent  2 
thereto  in  UTiting,  may  appoint  one  or  more  auditors  to  hear  the  parties,  3 
examine  their  vouchers  and  evidence,  state  accounts  and  report  upon  such  4 
matters  therein  as  may  be  ordered  by  the  coiu-t.  The  auditor's  findings  5 
of  fact  shall  be  prima  facie  evidence  upon  such  matters  only  as  are  em-  6 
braced  in  the  order;  but  the  court  at  the  trial  shall  exclude  any  finding  7 
of  fact  which  appears  in  the  report  to  be  based  upon  an  erroneous  opinion  8 
of  law,  or  upon  inadmissible  evidence.  Whenever  the  auditor  makes  a  9 
ruling  as  to  the  admissibility  of  evidence  and  objection  is  taken  thereto  10 
he  shall,  if  requested  so  to  do,  make  a  statement  of  such  ruling  in  his  11 
report.  The  auditor  shall  not  make  any  finding  of  fact  which  depends  12 
upon  the  decision  of  a  question  of  law,  imless  he  makes  alternative  find-  13 
ings  or  states  in  his  report  the  view  of  the  law  upon  which  his  finding  14 
depends,  together  with  such  subsidiary  facts  as  will  enable  the  court  to  15 
pass  upon  the  question.  16 


104  Mass. 

108  Mass. 

109  Mass. 
112  Mass. 
115  Mass. 
117  Mass. 
122  Mass. 

126  Mass. 

127  Mass. 

129  Mass. 

130  Mass. 

131  Mass. 

132  Mass. 


521,593. 

570. 

464. 

320. 

44. 

167. 

505,  522. 

21. 

530. 

299. 

424. 

80. 

489. 


133  Mass. 
136  Mass. 
141  Mass. 
143  Mass. 
150  Mass. 
161  Mass. 
163  Mass. 

170  Mass. 

171  Mass. 

172  Mass. 

173  Mass. 

174  Mass. 

175  Mass. 


546. 

361. 

298. 

275,  448. 

535. 

294. 

375. 

419. 

283. 

398. 

261. 

490. 

400. 


176  Mass.  265. 

179  Mass.  153,  276,  439. 

180  Mass.  662. 
184  Mass.  98. 
188  Mass.  558. 
197  Mass.  137. 
199  Mass.  15. 
204  Mass.  34. 
208  Mass.  94. 
217  Mass.  451. 
225  Mass.  148. 
227  Mass.  415. 
232  Mass.  220. 


Auditors  in 
probate  court. 
1889,  311,  §  1. 
R.  L.  165,  §  56. 
190  Mass.  599. 
197  Mass.  137. 


Section  57.     After  any  account  of  an  executor,  administrator,  guard-  1 

ian,  conservator,  trustee  or  other  person  required  by  law  to  render  an  2 

account  in  the  probate  court  has  been  filed  therein,  the  judge  of  said  3 

court  may,  before  approving  it,  appoint  one  or  more  auditors  to  hear  the  4 

parties,  examine  vouchers  and  evidence  and  report  upon  the  same  to  the  5 

court.    The  report  shall  be  prima  facie  evidence  upon  such  matters  as  are  6 

expressly  referred  to  such  auditors.  7 


Notice  to 
parties. 
R.  S.  96, 
§1  26,  27. 
U.S.  121, 
§147,48. 
P.  S.  1.59, 
§§  52,  53. 
R.  L.  165,  i 
1914,  576,  ! 


15  Gray,  351. 


Section  58.  Auditors  shall  give  notice  to  the  parties  of  the  time  and  1 
place  appointed  for  their  meeting,  and  may  adjourn  from  time  to  time  as  2 
may  be  necessary.  If  there  is  more  than  one  auditor,  all  shall  meet  and  3 
hear  the  cause,  but  a  report  may  be  made  by  a  majority.  If  either  party  4 
neglects  to  appear  at  the  time  appointed  for  such  hearing,  or  at  any  ad-  5 
journment  thereof,  without  just  cause,  or  if  at  any  such  hearing  either  6 
party  refuses  to  produce  in  good  faith  the  testimony  relied  on  by  him,  7 
the  auditors  may  close  the  hearings  and  make  a  report  recommending  8 
that  judgment  be  entered  for  the  adverse  party.  Judgment  shall  be  9 
entered  accordingly  at  the  first  judgment  day  after  the  expiration  of  ten  10 
days  from  the  filing  of  the  report,  unless  the  court,  for  cause  shown,  11 
otherwise  orders.  12 


Chap.  221.]    clerks,  attorneys  and  other  officers  of  courts.  2387 

1  Section  59.    The  court  may  for  cause  discharge  the  auditors  and  ^^^^^'f 

2  appoint  others  and  may  recommit  the  report  for  revision  or  further  §  |?2i^/|9 

3  examination  to  the  same  or  to  other  auditors. 

p.  S.  159,  §  54.  R.  L.  165,  §  58.  *  4  Pick.  283. 

1  Section  60.    The  court  in  which  a  cause  is  pending  may,  upon  appli-  f^relucuto^. 

2  cation  of  either  party,  appoint  a  day  certain  for  the  hearing  thereof  before  J^oO'  ^is,  §  i^ 

3  the  auditor.    The  hearing  shall  be  had  upon  the  day  appointed,  and  shall  wh]  576'.  §  4.' 

4  proceed,  unless  the  parties  otherwise  agree  or  the  auditor  otherwise  orders,  i86  Mass!  ue. 

5  from  day  to  day  until  the  conclusion  thereof. 

1  Section  61.     The  court  shall  award  reasonable  compensation  and  ^f°"u'a,tors'°" 

2  allow  actual  expenses  of  travel  in  attending  hearings,  if  said  expenses  be  j^^'l'gg-i  31 

3  approved  by  the  court  as  reasonable,  to  auditors,  and  the  same  shall  be  g  s.  121,  §  so. 

4  paid  by  the  county  if  they  are  appointed  by  the  supreme  judicial  court,  1873!  342. 

5  the  superior  court  or  the  probate  court.    If  they  are  appointed  by  any  p.  s.' 159.' §55. 

6  other  court,  the  compensation  awarded  and  expenses  of  travel  allowed  r^^l!  ill',  i  m. 

7  may  be  paid  by  either  party  and  taxed  in  his  bill  of  costs  if  he  prevails;  JI^Ma/g.  316. 

8  but  the  plaintiff  shall  be  liable  for  such  payment,  and  the  court  may  make  253  u.  s.  300. 

9  all  orders  and  decrees,  and  issue  process  to  enforce  the  same.    No  allow- 

10  ance  for  the  expenses  of  travel  shall  be  allowed  by  the  court,  unless  the 

11  auditor  shall  file  a  true  and  correct  account  of  such  expenses,  signed  and 

12  sworn  to  by  him. 

1  Section  62.    Auditors,  masters  in  chancery  and  special  masters  shall  ^Xtore,"^ 

2  file  their  final  report  in  the  office  of  the  clerk  of  the  court  by  which  they  fgfg'^^^/*''- 

3  are  appointed  within  ninety  days  after  the  hearing  before  them  has  been  R^  l:  i6|.  ||i- 

4  closed  or  within  such  time  as  the  court  may  allow,  and,  in  default  thereof, 

5  shall  not  be  entitled  to  any  fees. 

reporter  of  decisions. 

1  Section  63.    There  shall  be  a  reporter  of  decisions  of  the  supreme  Appointment. 

2  judicial  court.    He  shall  be  appointed  by  the  governor,  with  the  advice  R*°a  sl,^' 

3  and  consent  of  the  council,  and  hold  office  at  their  pleasure.  ^^  ^^'  ^^■ 

G.  S.  121,  §  51.  P.  S.  159,  §  56.  R.  L.  165,  §  62. 

1  Section  64.     He  shall  attend  the  law  sittings  of  the  court  unless  ex-  Preparation 

2  cused  therefrom  by  the  chief  justice,  make  true  reports  of  decisions  upon  i803,''i33!§  i. 

3  all  questions  of  law  argued  by  counsel,  prepare  them  for  publication  with  Jps'ls,' 

4  suitable  head  notes,  tables  of  cases  and  indexes,  furnish  them  to  the  flag^'ioo. 

5  publisher,  and  superintend  the  correction,  proof  reading  and  publication  g.  s^m, 

6  thereof.    He  shall  in  his  discretion  report  the  several  cases  more  or  less  i,87|.'28o. 

7  at  large  according  to  their  relative  importance,  so  as  not  unnecessarily  to  5§  V7,^5_8.    ^ 

8  increase  the  size  or  number  of  the  volumes  of  reports.    The  reports  of  r.  i,:ifi5:|G3. 

9  all  decisions  argued  and  determined  before  September  first  in  each  year  '^°*'  ^''*'    '• 
10  shall  be  published  within  ninety  days  thereafter. 

1  Section  65.    The  volumes  of  reports  shall  be  styled  "  Massachusetts  style  ot 

2  Reports",  and  the  name  of  the  reporter  shall  not  be  added  thereto.  is67?l39. 

p.  S.  159,  §  60.  R.  L.  165,  §  64. 

1  Section  66.     The  county  of  Suffolk  shall  provide  a  safe  and  con-  Preser^-ationof 

2  venient  place  in  Boston  where  the  reporter  shall  keep  the  written  opin-  publication. 


2388 


CLERKS,   ATTORNEYS  AND   OTHER   OFFICERS   OF  COURTS.      [CiLiP.   221. 


p%*' 1*5^9  1 61    '^'^^^  °^  *^^  court  in  all  law  cases  argued  in  the  several  counties  until  their    3 
R.  L- 165, 165.  publication  in  the  reports,  and  his  dockets  and  copies  of  papers  in  such    4 
cases,  and  where  he  shall  afford  due  facilities  for  their  examination.  5 


142  Mass.  29. 


°p?rtJr.  Section  67.     If  the  reporter  is  prevented  from  attending  at  a  sitting,  1 

G  i'  121  ^'^55    ^^  shall  depute  a  suitable  person  to  attend  for  him  and  take  notes  of  the  2 

RLwslel   decisions;   or  the  court  may  appoint  a  person  to  act  for  him  until  he  3 

resumes  the  performance  of  his  duties,  or  until  another  is  appointed.  4 


Compensation 
of  reporter. 
1803,  133,  §  2. 
R.  S.  88,  §  42. 
1843,49,  §  1. 
G.  S.  121,  §  56. 
1879,  280. 
P.  S.  159,  §  63. 
1889,471,  §  4. 
1892,  380. 
R.  L.  165,  §  67. 

1908,  358,  I  2. 

1909,  230. 
1920,  640. 


Number  of 
deputy  sheriffs, 
etc.,  to  serve 
as  court  officers. 
1862,  102, 
H  1,2. 
P.  S.  159, 
§§  64-66. 
R.  L.  165, 
§§  68,  70,  71. 


Section  68.     The  reporter  shall  receive  from  the  commonwealth  a  1 

salary  of  six  thousand  dollars,  and  shall  be  allowed  not  more  than  eight  2 

thousand  dollars  a  year  for  clerical  and  incidental  expenses  of  his  office,  3 

which  shall  be  paid  by  the  commonwealth.    These  amounts  shall  be  in  4 

full  compensation  for  his  services  and  said  expenses.    All  fees  received  5 

by  him  for  copies  of  opinions,  rescripts  and  other  papers  shall  be  paid  6 

by  him  quarterly  to  the  commonwealth,  with  a  detailed  statement  7 

thereof.  8 

COURT  OFFICERS. 

Section  69.     Not  more  than  four  deputy  sheriffs  shall  receive  com-  1 

pensation  for  attendance  upon  any  civil  sitting  of  the  supreme  judicial  2 

court  or  a  sitting  of  the  superior  court  for  civil  business  or  for  both  civil  3 

and  criminal  business  unless  in  the  supreme  judicial  court  the  presiding  4 

justice  and  in  the  superior  court  the  presiding  justice  or  the  district  5 

attorney  in  writing  requires  the  sheriff  to  procure  the  attendance  for  6 

the  whole  or  a  portion  of  such  sitting  of  an  additional  number.     Not  7 

more  than  six  deputy  sheriffs  or  constables  shall  receive  compensation  8 

for  attendance  upon  any  criminal  sitting  of  the  superior  court  for  crim-  9 

inal  business  unless  the  district  attorney  in  writing  requires  the  sheriff  10 

to  prociu-e  the  attendance  for  the  whole  or  a  portion  of  such  sitting  of  11 

an  additional  number.  12 


Court  officers 
in  certain 
counties,  ap- 
pointment and 
removal,  bonds, 
powers. 
1877,  169,  §  2. 
P.  S.  159,  §  67. 
1888,  357, 
§§  1-3. 
1892,  107, 
§S  1.2,4. 
1895,  246,  §  1. 
R.  L.  165. 
»  72-74. 
1911,322, 
§§  1,3. 
1920,  213, 
§5  1-3,  5. 


Section  70.  The  sheriffs  of  Suffolk,  Middlesex  and  Worcester  coun-  1 
ties  may  each  appoint,  subject  to  the  approval  of  the  justices  of  the  2 
superior  court,  officers  for  attendance  upon  the  several  sessions  of  the  3 
superior  court  in  their  respective  counties,  as  follows:  4 

For  Suffolk,  not  exceeding  four  for  each  session  for  civil  business  held  5 
with  juries;  three  for  each  session  held  without  juries;  and  six  for  the  6 
session  for  criminal  business;  said  officers  shall  be  interchanged  between  7 
the  several  sessions  so  as  to  seciu"e  as  nearly  as  may  be  equal  service  8 
by  all.  _  9 

For  Middlesex,  eight  for  civil  or  criminal  business,  who  shall,  when  10 
required  by  the  sheriff',  attend  the  sessions  of  the  supreme  judicial  or  pro-  1 1 
bate  court  when  not  in  attendance  on  the  superior  court.  12 

For  Worcester,  for  ci\-il  or  criminal  business,  such  number  as  may  13 
be  necessary,  who  shall  also  attend  upon  the  sessions  of  the  supreme  14 
judicial,  probate  and  insolvency  and  land  courts.  15 

Each  of  said  officers  shall  give  to  the  sheriff  appointing  him  a  bond  16 
with  sufficient  sureties,  in  the  sum  of  fifteen  hundred  dollars,  for  the  17 
faithful  performance  of  his  duties.  They  shall  have  the  authority  of  18 
constables  to  serve  venires  for  jurors  and  the  processes  of  said  courts,  and  19 
in  Worcester  county  to  summon  witnesses;  and  they  shall  be  paid  by  20 
the  county  their  actual  expenses  necessarily  incurred  in  making  such  21 
ser\aces.  22 


Ch.\P.   221.]      CLERKS,  ATTORNEYS  AND   OTHER   OFFICERS   OF  COUBTS.  2389 

1  Section  71.     The  sheriffs  of  Suffolk  and  Middlesex  counties  may  each  Chief  deputy 

2  designate  one  court  officer  to  act  as  chief  deputy  sheriff  for  attendance  iSlnd 

3  on  the  superior  court  in  his  county.    In  Worcester  county  the  sheriff  mav  ^n'rS'^!f,pr;n„,f 

J      1      •  fvy  1  •    n  *  *     itiiu  ciiiti  court 

4  designate  one  court  ofhcer  as  chief  court  officer  for  attendance  on  the  worcesto 

5  supreme  judicial  and  superior  courts.    Such  officers,  under  the  orders  of  wis^m"' 

6  the  sheriffs  of  their  respective  counties,  in  addition  to  their  regular  duties  wi?!  sia 

7  as  court  officers,  shall  supervise,  direct  and  assign  the  officers  of  their  vm.'u-' 

8  respective  courts.     The  salary  of  the  chief  deputy  for  Suffolk  county  fxi'xl^'' 

9  shall  be  thirty-three  hundred  and  sixty  dollars  and  "for  Middlesex  county  flfig].^' 

10  twenty-seven  hundred  and  twenty-four  dollars,  to  be  paid  by  their  re- 

1 1  spective  counties. 

1  Section  72.     Officers  appointed  as  court  officers  to  attend  upon  the  Term  of  office. 

2  sessions  of  the  supreme  judicial  or  superior  court  in  any  county,  including  1912,'  ill' 

3  cliief  deputies  and  the  chief  court  officer  in  Worcester  county  designated  Jgle;  fsa; 

4  under  the  preceding  section,  shall  hold  office  during  good  beha\ior  and  ^gls  201' 

5  until  they  are  removed  by  the  sheriff  of  the  county  for  which  they  were  1920!  213!  §  5. 

6  appointed,  for  cause  approved  by  the  justices  of  the  court  for  attendance 

7  upon  which  they  were  appointed.     Court  officers  appointed  to  attend 

8  upon  both  of  said  courts  may  be  removed  for  cause  approved  by  the 

9  justices  of  either  of  said  courts. 

1  Section  73.     Each  officer  in  attendance  upon  the  supreme  judicial  eourt'oVcers 

2  court  in  Suffolk  county,  not  exceeding  six  officers,  shall  receive  in  full  >"  supreme 

3  for  all  ser\ices  performed  by  him  twenty-four  hundred  and  eighty-four  in  Suffolk 

4  dollars  a  year,  of  which  nineteen  hundred  and  fifty-six  dollars  shall  be  iss2, 232,  §  1. 

5  paid  by  said  county  and  five  hundred  and  twenty-eight  dollars  by  the  Islo!  294.^  ^' 

6  commonwealth.  R.  l.  les,  §  69. 

1917,  335.  §  1.         1918,  260,  §  1.         1919,  276.         1920,  494. 

1  Section  74.    Each  officer  in  Suffolk  and  Middlesex  counties  ap-  Compensation 

2  pointed  under  section  seventy  shall  receive  a  salary  of  twenty-four  ot  superior^'""^^ 

3  hundred  and  eighty-four  dollars,  and  each  officer  in  Worcester  county  Jai^nUuntYes. 

4  appointed  under  said  section  seventy  such  salary  as  the  justices  of  the  il??' log'^^^' 

5  superior  court  may  fix,  in  full  for  all  services  performed  by  him,  which  |>^s'i5fl\e9 

6  shall  be  paid  by  their  respective  counties ;  except  that  the  salary  of  the  iss^,  245,  §  3." 

7  deputy  sheriff  in  charge  of  the  session  of  the  superior  court  for  criminal  isse!  zi.  %  1. 

8  business  in  Suffolk  county  shall  be  twenty-six  hundred  and  forty  dollars  isiiS!  246,'  §  \. 

9  and  said  officers  in  Middlesex  and  Worcester  counties  shall,  in  addition,  fgo?;  I59;  ^  ^"^ 

10  receive  ten  cents  a  mile  for  travel  out  and  home  once  a  week  during  igjy'iss'^"' 

11  such  attendance,  if  the  distance  exceeds  five  miles  in  one  direction,  fg,^^  l^o  «i 

12  Any  additional  officers  whose  attendance  may  be  required  in  the  superior  ii3^9!276! 

13  court  in  Suffolk  county  under  section  sixty-nine  shall  be  allowed  six  494. ' 

14  dollars  for  each  day  of  service  actually  rendered,  which  shall  be  paid 

15  by  said  county. 

1  Section  75.     Deputy  sheriffs  not  on  salary  shall  be  paid  seven  dollars  Fees  for 

2  a  day  for  attendance  upon  the  supreme  judicial,  superior  or  probate  a"cou?t"'^^ 

3  court,  or  upon  the  sessions  of  the  county  commissioners,  and  ten  cents  a  it^s.'f2'2,^ '' 

4  mile  for  travel  out  and  home  once  a  week  during  such  attendance.     Con-  fl.,!,  75.  §  0 

5  stables  shall  be  paid  for  such  attendance  four  dollars  a  day,  and  five  cents  ^^■'"^•'  J||- 

6  a  mile  for  travel  out  and  home  once  a  week,  except  that  when  in  attend-  5*  *•  <". 

.  i8()(i  190. 

7  ance  upon  the  supreme  judicial  court  in  Suffolk  comity  they  shall  re-  is73;222; 


2390 


CLERKS,  ATTORNEYS  AND   OTHER   OFFICERS   OF  COURTS.      [ChAP.   221. 


1879, 227,  §  1.  ceive  four  dollars  and  fifty  cents  a  day.     Compensation  under  this  section    8 

i8l2,232,\ 2^'  shall  be  paid  by  the  respective  counties,  except  that  for  attendance  on    9 

liisi  369!  the  supreme  judicial  court  in  Suffolk  county  when  said  court  is  sitting  for  10 

r^l'  165'  §  75  the  commonwealth  it  shall  be  paid  by  the  commonwealth.      i9i7, 29s.  11 


Duties  and 
salaries  of 
messengers  in 
Suffolk  county. 
1877,  169,  §  1. 
P.  S.  159,  §  69. 
1883,  54,  §  1. 
1886,  37,  §  1. 
R.  L.  165,  §  76. 

1906,  470. 

1907,  133. 
1919,  267. 
1920,494. 


Section  76.     The  messenger  of  the  justices  of  the  supreme  judicial  1 

court  in  Suffolk  county  shall  receive  an  annual  salary  of  three  thou-  2 

sand  dollars,  of  wliich  twenty-six  hundred  dollars  shall  be  paid  by  said  3 

county  and  four  hundred  dollars  by  the  commonwealth.     The  messenger  4 

of  the  superior  court  in  said  county,  who  shall  also  act  as  clerical  assistant  5 

of  the  justices  of  said  court,  shall  receive  from  said  county  a  salary  of  6 

tliree  thousand  dollars,  in  full  for  liis  services  in  both  capacities.  7 


Premiums  on 
bonds  in  Suf- 


Section  77.     Premiiuns  on  bonds  of  court  officers  and  deputy  sheriffs  1 

be  paid"by  *°    '^^  attendance  on  the  supreme  judicial  or  superior  court  in  Suffolk  county  2 

and  on  the  courts  in  Worcester  county  shall  be  paid  by  their  respective  3 

counties.  1920, 213, 53.  4 


county. 

1916,39. 

1917.71. 


Service  of 
venires  by 
officers  of  the 
supreme 
judicial  court, 
county  of 
Suffolk. 
1907,  312. 


Section  78.     Any  officer  in  attendance  upon  the  supreme  judicial  1 

court  in  Suffolk  county  under  section  seventy-three,  including  the  mes-  2 

senger  of  the  justices  of  said  court,  may  be  designated  by  the  sheriff  of  3 

said  county  to  serve  venires  for  jurors  and  the  processes  of  said  court,  4 

and  when  so  designated  shall  have  the  authority  of  constables  for  said  5 

purposes,  and  shall  be  paid  by  said  coimty  his  actual  expenses  necessarily  6 

incurred  in  making  such  services.     He  shall  first  give  to  the  sheriff  a  7 

bond  with  sufficient  sureties  in  the  sum  of  fifteen  hundred  dollars  for  the  8 

faithfid  performance  of  his  duties.  9 


Summoning 
of  witnesses  by 
officers  in 
Suffolk  and 
Worcester. 
1879,  193. 
P.  S.  159,  §  70. 
R.  L,  165,  §  78. 
1911,322,  §  3. 
1920,  213. 
§§2,5. 


Section  79.     Officers  in  attendance  upon  the  sessions  of  the  superior  1 

court  for  criminal  business  in  Suffolk  county  and  the  officers  appointed  2 

for  attendance  on  the  sessions  of  the  superior  court  for  civil  or  criminal  3 

business  in  Worcester  county  shall  summon  witnesses  on  behalf  of  the  4 

commonwealth  from  any  part  of  the  commonwealth,  but  shall  receive  5 

therefor  no  compensation  in  addition  to  their  salaries  except  for  expenses  6 

actually  incurred  and  paid.  7 


Court  officers 
to  wear 
uniforms. 
1888,  371. 

1891,  181. 

1892,  107, 
§§  3,  5. 
1895,  246, 
§§  2,  3. 

R.  L.  165,  I  77. 
1911,322,  I  3. 
1920,  213,  §  5. 


Section  80.  Court  oiEcers  receiving  salaries  and  deputy  sheriffs  in 
attendance  upon  the  supreme  judicial  or  superior  court  in  Suffolk,  Mid- 
dlesex and  Worcester  counties  shall,  while  on  duty  in  said  courts,  wear 
uniforms  which  shall  be  designated  by  the  sheriff  of  the  county  and, 
except  the  deputy  sheriffs  in  Middlesex  county,  shall  each  be  annually 
allowed  by  the  respective  counties  one  hundred  dollars  in  addition  to 
the  salary  allowed  by  law  in  order  to  provide  such  uniforms. 


Officers  not  to 

draw  double 

pay. 

1862,  102,  §  4. 

1879,  227,  §  2. 

P.  S.  159,  §  71. 

R.  L.  165,  §  79. 


Section  81.  No  deputy  sheriff  or  constable  receiving  a  salary  from 
the  county  shall  be  designated  to  attend,  for  compensation  by  the  day, 
upon  the  sessions  of  the  supreme  judicial  or  superior  court,  and  no 
deputy  sheriff  or  constable  shall  receive  compensation  for  attendance 
upon  the  sessions  of  more  than  one  court,  or  upon  more  than  one  ses- 
sion of  the  same  court,  on  the  same  day. 


CeL-IP.  221.]   CLERKS,  ATTORNEYS  AND   OTHER  OFFICERS  OF  COURTS.  2391 


STENOGRAPHERS. 

1  Section  82.     The  justices  of  the  superior  court  shall  appoint  a  ste-  Appointment 

2  nographer  for  each  regular  session  of  said  court  held  for  civil  business  coult  ^"''*"°'' 

3  and  for  each  of  the  two  divisions  of  the  session  of  said  court  held  for  |§"°;|^^' 

4  criminal  business  v\-ithin  and  for  the  county  of  Suffolk,  and  a  stenog-  |'j|b^f4 

5  rapher  for  said  court  in  all  other  counties.     They  may  also,  if  the  business  Jf^^'l^i' 

6  of  the  court  requires  it,  appoint  an  additional  stenographer  in  any  county  issr.  24,' 

7  except  Suffolk,  who  shall  serve  when  designated.     Each  stenographer  ism,  404. 

8  shall  be  an  officer  of  the  court,  and  shall  be  sworn,  and  the  same  person  §§^i*,'6.^*' 

9  may  be  appointed  stenographer  for  more  than  one  county.     The  justices  §§^i';8.^^' 

10  may  remove  said  stenographers,  and  may  fill  a  vacancy  caused  by  such  fgjs' ^'l' 1 1?" 

11  removal  or  otherwise.  1  Op.  a.  g.  87.  2  Op.  a.  g.  112.  295,  §  1. ' 

1  Section  83.     Each  stenographer  appointed  for  Suffolk  county  under  Assistant 

2  the  preceding  section  may,  with  the  approval  of  any  justice  of  the  court,  {o™s°upeno"^ 

3  appoint  one  or  more  assistants,  who  shall  be  sworn;   but  no  additional  ^sto  siL^m"'' 

4  compensation  shall  be  paid  or  expense  incurred  by  reason  of  such  ap-  Pg|^  ^^^^  ^^"^• 

5  pointment.     The  presiding  justice  of  said  com-t  may,  in  case  of  the  ill-  ism'  242!  §  4. 

6  ness  or  temporary  absence  of  the  stenographer,  appoint  a  competent  r.  l!  les!  §  si. 

7  person  to  act  during  such  illness  or  absence. 

1  Section  84.     The  presiding  justice  of  any  special  or  temporary  ses-  Temporary 

2  sion  of  the  superior  court  for  civil  or  criminal  business  may  appoint  one  js94%™4,''§6.' 

3  or  more  stenographers  to  attend  therein,  who  shall  be  officers  of  the  r  ^l  lia!  |  si 

4  court  and  be  sworn.     But  it  shall  not  be  necessary  to  appoint  a  stenog-  l^^^l^^*^' 

5  rapher  for  any  session  for  civil  business  if  the  justices  do  not  consider  it  ibis.  s. 

6  of  a  permanent  and  continuous  character. 

1  Section  85.     At  the  trial  of  anv  issue  of  fact  in  the  supreme  judicial  stenographer 

_  1  .....  *■  .  1  1  1      ti    1       ^"  supreme 

2  court  the  presidmg  justice  may  appoint  a  stenographer,  who  shall  be  judiiiai  court 

3  sworn.    At  the  trial  of  any  criminal  case  in  the  superior  court,  except  in  rases  in  Superior 

4  Suffolk  county,  the  presiding  justice  may,  of  his  own  motion  or  at  the  isor'^re,  1 1. 

5  request  of  the  district  attorney  or  of  the  defendant,  appoint  a  stenog-  ^912;  289.  ^ '*^' 

6  rapher  who  shall  be  sworn;    provided,  that  such  request  is  made  at  a 

7  reasonable  time  before  the  trial,  so  as  to  enable  the  court  to  secure  the 

8  attendance  of  a  stenographer. 

1  Section  86.     A  justice  of  the  superior  court  may,  upon  the  request  of  stenographer 

.  ^  '       i.  Ti  £qj.  g[-{irid  jury. 

2  the  district  attorney,  appoint  a  stenographer,  who  shall  be  sworn,  and  isg?,  47s,  §  2. 

3  who  shall  take  stenographic  notes  of  such  testimony  given  before  the  231  Mass.  S84.' 

4  grand  jury  as  he  may  direct,  and  shall  provide  him  with  a  transcript  fully 

5  written  out  of  such  part  of  said  notes  as  he  requires.    This  section  shall 

6  not  authorize  the  taking  of  any  statement  or  testimony  of  a  grand  juror. 

1  Section  87.     Stenographers  shall  attend  the  sessions  of  the  courts  for  Duties  of 

2  which  they  are  appointed,  and  those  who  are  appointed  for  jury  sessions  is70°¥i'2,''§  2.' 

3  of  the  superior  court  for  civil  business  in  Suffolk  county  shall,  when  di-  p^|^  '29^^'  i'^- 

4  rected  by  the  justice  presiding  in  such  session,  serve  in  any  other  of  said  If'f'xSA  «  2 

5  sessions  as  necessity  requires.    Said  stenographers,  unless  excused  there-  isoi  133. ' 

6  from  by  the  presiding  justice,  stenographers  for  criminal  business  in  i896!459! 

7  Suffolk  county,  upon  the  request  of  the  presiding  justice,  the  district  189^7,478, 5 1. 

8  attorney  or  the  defendant,  stenographers  for  civil  business  in  counties  fss^Mass'.  le.^' 

9  except  Suffolk,  and  stenographers  appointed  under  sections  eighty-four 


2392 


CLERKS,   ATTORNEYS   AND   OTHER   OFFICERS   OF   COITITS.       [ChAP.    221. 


and  eighty-five  shall  take  stenographic  notes  of  all  the  evidence  given  at  10 
each  trial  in  their  respective  courts  and  of  the  rulings  and  charge  of  the  11 
presiding  justice,  and,  when  requested  by  him,  shall  read  from  such  notes  12 
in  open  court  any  portion  of  the  testimony  so  taken  and,  upon  request,  13 
shall  provide  him  with  a  transcript  of  such  notes  fully  written  out,  of  14 
such  part  of  said  testimony,  rulings  or  charge  as  may  be  desired,  and,  upon  15 
request,  shall  within  a  reasonable  time  furnish  to  any  party  to  the  ac-  16 
tion  a  like  transcript,  upon  pajinent  by  the  party  requesting  it  of  ten  17 
cents  a  hundred  words  for  each  copy  so  furnished.  If  the  transcript  is  fur-  18 
nished  at  the  request  of  the  presiding  justice,  the  stenographer  shall  be  19 
paid  therefor  at  the  same  rate  by  the  county,  upon  a  voucher  approved  20 
by  the  justice,  and,  in  criminal  cases  in  Suffolk  county,  such  expense  and  21 
the  expense  of  transcripts  furnished  to  the  district  attorney  shall  be  taxed  22 
like  other  expenses.  The  stenographers  appointed  for  the  criminal  ses-  23 
sions  of  the  superior  court  for  Suffolk  county,  when  not  employed  in  said  24 
court,  shall  perform  such  services  as  stenographers  as  may  be  required  25 
by  the  district  attorney,  and  shall  receive  the  same  compensation  for  26 
transcripts  as  is  hereinbefore  provided.  27 


Same  subject. 
1S94,  424.  §  3. 
R.  L.  165,  §  86. 


Interchange 
of  services. 
1894.  424,  I  8. 
1S96,  439.  I  6. 
R.  L.  165,  §  87. 


Section  88.     Each  stenographer  appointed  for  the  sessions  of  the  1 

superior  court  for  civil  business  without  juries  in  Suffolk  county  shall  2 

attend  therein  when  requested  by  the  presiding  justice,  and  shall  perform  3 

the  duties  required  by  the  preceding  section  of  stenographers  in  the  jury  4 

sessions  of  said  court,  and  shall  render  such  other  clerical  assistance  to  5 

the  justices  of  said  court  as  they  deem  necessary.    He  shall  receive  for  6 

transcripts  furnished  to  parties  the  compensation  provided  in  the  pre-  7 

ceding  section.  8 

Section  89.    Official  stenographers  of  the  superior  court  in  the  same  1 

or  different  counties  may,  with  the  consent  of  said  court,  interchange  2 

services  or  perform  each  others'  duties.  3 


Stenographers 
for  justices  of 
the  supreme 
judicial  court. 
1919,  242. 


Section  90.  The  justices  of  the  supreme  judicial  court  may  employ 
one  or  more  stenographers  in  Suffolk  county  who  shall  perform  such 
stenographic  service  as  may  be  required  by  the  justices,  at  an  annual 
expense  not  exceeding  twenty-five  hundred  dollars,  which  shall  be  paid 
by  the  commonwealth  upon  the  certificate  of  the  chief  justice. 


Salaries  and 
compensation 
of  stenog- 
raphers in  the 
superior  court. 
1870,  312,  §  1. 
P.  S.  159.  §  72. 
1885,  291,  §  1. 
1887,24,  §  1; 
74,  §  1. 
1889,  324. 

1893,  404;  4.52. 

1894,  68;  330; 
424,  §§  1,  6. 

1896,  459, 
§U,5. 

1897,  478. 
1901,329. 

R.  L.  165,  §  88. 

1913,  674. 

1914,  759. 

1915,  142,  §  2; 
295.  §  2. 
1919.  357. 

115  Mass.  310. 


Section  91.  In  counties  having  a  population  of  more  than  two  hun-  1 
dred  thousand,  stenographers  appointed  by  the  superior  court,  except  2 
the  additional  stenographers  for  Hampden  and  Worcester  counties,  3 
shall  receive  salaries  of  thirty-five  hundred  dollars,  to  be  paid  by  the  4 
respective  counties.  Said  additional  stenographers  for  Hampden  and  5 
Worcester  counties  and  all  other  stenographers  appointed  by  the  supe-  6 
rior  court  whose  salaries  are  not  herein  established  shall  receive  the  sum  7 
of  fifteen  dollars  for  each  day's  actual  and  necessary  attendance,  to  be  8 
paid  by  the  county  on  the  order  of  the  presiding  justice.  If  the  service  9 
is  rendered  in  any  court  outside  of  the  county  in  which  the  stenographer  10 
resides  or  has  his  usual  place  of  business,  the  justice  may  allow  in  addi-  11 
tion  to  such  compensation  a  reasonable  sum  for  travel  and  board.  The  12 
stenographer  appointed  by  the  superior  court  for  the  county  of  Nan-  13 
tucket  shall  be  allowed  the  sum  of  eighteen  dollars  for  each  sitting  of  the  14 
court  in  that  county  as  compensation  for  time  consumed  in  traveling,  in  15 


Chap.  221.]    clerks,  attorneys  and  other  officers  of  courts.  2393 

16  addition  to  any  sum  which  may  be  allowed  by  the  court  for  actual  and 

17  necessary  attendance  and  expenses. 

interpreters. 

1  Section  92.     The  justices  of  the  superior  court  may  appoint  such  interpreters. 

2  official  interpreters  as  they  may  deem  necessary  for  the  sessions  of  the  ^^'^'  '^^^' 

3  court,  and  fi.x  their  compensation.     The  interpreters  shall  hold  their 

4  positions  at  the  pleasure  of  the  court  and  render  such  additional  service 

5  as  any  justice  of  the  court  requires.    The  justices  shall  forthwith  dis- 

6  charge  any  such  interpreter  who  shall  be  found  to  have  requested  or 

7  received,  directly  or  indirectly,  any  gratuity,  bonus  or  fee  in  connection 

8  with  any  case  pending  or  in  course  of  preparation  for  presentation  to 

9  any  court.     This  section  shall  not  prevent  the  justices  from  allowing 

10  reasonable  compensation  to  other  interpreters  when  the  services  of  the 

11  official  interpreters  are  not  available.    The  expenses  incurred  hereunder 

12  shall  be  paid  by  the  county  in  which  the  prosecution  or  suit  is  pending. 

SALARIES  AND  EXPENSES  OF  CLERKS  AND  ASSISTANT  CLERKS  OF  THE 
SUPREME  JUDICIAL  AND  SUPERIOR  COURTS. 

1  Section  93.     The  clerk  of  the  supreme  judicial  court  for  the  com-  salaries  of 

2  monwealth  shall  receive  from  the  commonwealth  a  salary  of  thirty-five  slltant'derk 

3  hundred  dollars,  with  five  hundred  dollars  a  year  for  clerk  hire;  and  the  °ucf,cSi%ourt 

4  assistant  clerk  shall  receive  from  the  commonwealth  a  salary  of  fifteen  ^°'  "><'  ™'n- 

,  (1.11.      nionwealtn, 

5  hundred  dollars;   proA-ided,  that  m  case  the  office  of  assistant  clerk  is  Sf^lAilL^' 

6  not  filled,  the  clerk  shall  receive  eight  hundred  dollars  a  year  for  clerk  g  s.  m. 

7  hire.  p.  s.  isg,  §§5, 3i.  is94, 136. 

R.  L.  165,  §  33.  1909,  165.  1912,  219.  1918,  287,  §  1. 

1  Section  94.     E.xcept  as  provided  in  sections  ninety-three  and  ninety-  salaries  of 

2  eight,  the  salaries  of  clerks  of  courts  shall  be  based  upon  the  population  isaV'ng.  §  4. 

3  of  their  respective  counties  as  determined  by  the  census  of  nineteen  hun-  r.^I;  Jg,"' 

4  dred  and  fifteen,  as  follows:  il57%72. 

Counties,  Population  of.  Salary  of  Clerk.  ^^^^  ^|^'  1 1^*- 

Under  40,000 $2,300  I'sh]  sm. 

40,000  to  50,000, 2,400  J^'s'ifrf  fig 

50,000  to  60,000, 2,500  i887,  lii-. 

60,000  to  70,000, 2,600  ^lls%\  \  i 

70,000  to  80,000, 2,700  1892:95.' 

80,000  to  90,000 2,800  ^m^,-  l'^^'  ^  ^^■ 

90,000  to  100,000, 2,900  1904!  45i; 

100,000  to  110,000, 3,000  flo's  ^179 

110,000  to  120,000,  ' 3,100  i90b:29o: 

120,000  to  130,000, 3,200  JUJI'  |^?- 

130,000  to  140,000, 3,300  §§1.' 7.  ' 

140,000  to  150,000, 3,400  |f\^'|^B' 

150,000  to  160,000 3,500  30p'.  A. G. 360. 

160,000  to  170,000, 3,600 

170,000  to  180,000, 3,700 

180,000  to  190,000 3,800 

190,000  to  200,000, 3,900 

200,000  to  210,000 4,000 

210,000  to  220,000, 4,100 

220,000  to  230,000 4,200 

230,000  to  240,000, 4,300 

240,000  to  2,50,000, 4,400 

250,000  to  260,000 4,500 

260,000  to  270,000, 4,600 

270,000  to  280,000, 4,700 


2394 


CLERKS,  ATTORNEYS  AND  OTHER  OFFICERS  OF  COURTS.   [011^.?.  221. 


Salaries  of 
assistant 
clerics. 
1850,  236. 
1852,200;  267. 
1854,  215. 
1856,  37,  §  1. 
G.  S.  121,  §  26. 
1865,  209. 
1867,  295,  §  5. 

1870,  336. 

1871,  203. 

1872,  142;  307; 
332;  333. 


Counties,  Population  of.  Salary  of  Clerk. 

280,000  to  290,000 $4,800 

290,000  to  300,000 4,900 

300,000  to  320,000, 5,000 

320,000  to  340,000 5,100 

340,000  to  360,000, 5,200 

360,000  to  380,000, 6,300 

380,000  to  400,000, 5,400 

400,000  to  420,000, 5,500 

420,000  to  440,000, 5,600 

440,000  to  460,000, 5,700 

460,000  to  480,000, 5,800 

480,000  to  500,000, 5,900 

500,000  to  540,000 6,000 

540,000  to  580,000 6,100 

680,000  to  620,000 ,       .  6,200 

620,000  to  660,000 6,300 

660,000  to  700,000 6,400 

700,000  to  750,000, 6,500 

Counties  heaving  a  jjopulation  of  750,000  and  over,  salary  of  clerk,  $6,600, 
plus  $100  additional  for  each  50,000  population  above  750,000. 

Section  95.  Except  as  provided  in  section  ninety-three,  the  salaries 
of  assistant  clerks  of  courts  shall  be  as  follows:  first  assistant  clerks, 
sixty-five  per  cent,  second  and  other  assistant  clerks,  sixty  per  cent, 
of  the  salaries  of  the  clerks  of  their  respective  courts,  except  that  the 
salary  of  the  assistant  clerk  of  the  superior  court  for  civil  business 
in  Suffolk  county  performing  duties  as  clerk  in  equity  proceedings  shall 
be  five  thousand  dollars. 

1877,  17,  §  1.  1895,  251;  393;  480.  1906,  276. 

1881,  252;  266.  1896,  218.  1907,  145,  §  2;  253. 

P.  S.  159,  §  31.  1897,  220;  334.  1910,  188. 

1885,250.  1898, 376;  518.  1911,174. 

1887.  199.  1899,  377.  1912,  219;  547. 

1888,153.  1900,329.  1914,405. 

1889.  11;  50;  444.  1901,510.  1917, 44;  100;  134;  273. 

1890,  201.  R.  L.  165,  §  35.  1918,  287,  §§  1,  7. 
1891.92.  1902,  358;  499;  513.  1919,  251;  265,  §  1; 

1892,  87;  187.  1903,  137;  472,  |  3.  347.  §  1;  356,  §§  2,  3,  5,  6. 

1893,  153;  190.  1904,  451,  §  3.  4  Op.  A.  G.  294. 


Adjustments 
of  salaries, 
1911,  299,  5  1 

1918,  287,  I  ; 

1919,  356, 
§§  4,  7. 


Section  96.     In  the  year  following  each  state  and  national  census,  1 

the  state  treasurer  shall  adjust  the  salaries  provided  for  in  the  two  pre-  2 

ceding  sections  in  accordance  with  said  sections,  on  the  basis  of  said  3 

census,  and  the  salaries  so  adjusted  shall  be  allowed  from  January  first  4 

in  the  year  of  adjustment.  5 


Salaries,  how 
paid. 

1854,215,  §  1. 
G.  S.  121.  §  26. 
1867,  295, 
§§4,5. 

1870,  336,  §  1. 
1872,  332,  I  1. 
1877,  17,  §  1. 
1881,  252; 
262,  §  2. 
P.  S.  159,  §  31. 

1888,  1.53,  §  1. 

1889,  11,  §  1; 
50,  §1;  444,  §1. 


Section  97.     The  salaries  of  clerks  and  assistant  clerks  of  the  courts  1 

shall  be  paid  by  the  several  counties,  except  that  fifteen  hundred  dol-  2 

lars  of  the  salary  of  the  clerk  of  the  supreme  judicial  court  for  Suffolk  3 

county  and  five  hundred  dollars  of  the  salary  of  the  assistant  clerk  of  4 

the  superior  court  for  civil  business  in  Suffolk  county  performing  duties  5 

in  equity  proceedings  shall  be  paid  by  the  commonwealth.    The  assist-  6 

ant  clerks  of  the  superior  com-t  for  Suffolk  county  may  receive  their  7 

salaries  in  bi-weekly  instalments  if  they  so  request  in  writing.  & 


1892,  87,  5  1. 

1895,  251,  §  1;  393,  §  1; 
480,  5  1. 

1896,  218,  §  1. 
1897,220,  §  1;  334,  §  1. 
R.  L.  165,  §  35. 


1903,  137. 

1904,  451,  §  3. 

1906,  276. 

1907,  2.53. 
1908,259.  §  1. 


1910,  188. 
1912,547. 

1917,  44;  100; 

1918,  287,  §§  2 
1919,356,  §5. 


134. 


Dukes  and 
Nantucket 
counties. 
1830,  129,  §  4. 


Section  98.     The  salaries  of  the  clerks  of  the  courts  for  Dukes  and 
Nantucket  counties  shall  be  one  thousand  dollars  each. 


R.  S.  88,  §  17. 

P.  S.  159,  §  29. 

R.  L.  165,  §  34. 

1918.  287, 

5  1. 

G.  S.  121,  §  24. 

1887,  112,  §  J  1.2. 

1912,  219. 

1919,  356, 

t|6. 

1867,  296,  §  2. 

1888,  257,  §  1. 

1915,  245. 

Ch.'VP.  222.]       JUSTICES  of  the  peace,  notaries  public,  etc. 


2395 


1  Section  99.     Clerks  and  assistant  clerks  of  courts  except  in  Bristol  Traveling 

,,..,.,,,,  .  ...  ,.         expenses. 

2  county  shall  be  allowed  by  theu*  respective   counties   their   traveling  ism,  451,  §c.. 

'  ..  .  IPlS  287   §  G 

3  expenses  necessarily  incurred  when  holding  sessions  of  said  courts  out-  1919!  269^ 

4  side  of  the  cities  or  towns  in  which  the  clerks'  cfBces  are  established,  Io/ivims.  257. 

5  which  shall  be  audited  by  the  county  commissioners.     In  Bristol  county  2  Op"^  a! 0.^592. 

6  they  shall  receive  such  traveling  expenses  when  the  sessions  are  held  in 

7  a  city  or  town  other  than  where  they  live,  wliich  shall  be  audited  in  like 

8  manner. 

1  Section  100.     Each  temporary  clerk  shall  be  paid  by  the  clerk  for  salaries  of 

2  whom  he  is  acting  such  compensation  as  the  court  appointing  him  may  cfer^Tnd^ 

3  determine.     Each  temporary  assistant  clerk  appointed  under  section  r.^'s'ss!  §'i?' 

4  nine  shall  receive  from  the  county  the  same  salary  as  the  assistant  clerk  °g|-  \l\^ | \^- 

5  for  whom  he  is  acting,  and  the  amoimt  so  paid  shall  be  deducted  from  ^^'^g^'j^^  \^32 

6  the  salary  of  such  assistant  clerk.  r.  l.  les,  §  36. 

1  Section  101.     Except  as  otheraise  provided,  the  salaries  of  clerks  salaries  to  be 

2  shall  be  in  full  compensation  for  all  services  rendered  by  them  in  the  p°ensatioT 

3  civil  or  criminal  courts,  to  the  county  commissioners,  in  making  any  ^^fj  ^H'  |  ^j 

4  returns  required  by  law  or  in  the  performance  of  any  other  official  duty.  201  Mass.  257. 

3  Op.  A.  G.  106,  290.  4  Op.  A.  G.  195. 

1  Section  102.    Upon  the  certificate  of  the  clerks  of  the  courts  in  the  Extra  clerical 

2  several  counties,  or  of  the  clerk  of  the  supreme  judicial  or  superior  iIts^isl' 

3  court  in  Suffolk  county,  that  extra  clerical  assistance  was  actually  per-  p^^.'fg'gl'/jg. 

4  formed  and  was  necessary,  stating  the  names  of  the  persons  by  whom  3|^^  ^^^ 

5  it  was  performed  and  the  time  occupied,  they  shall  be  allowed  such  is99!  sso. 

6  amounts  as  the  coimty  commissioners,  in  a  WTiting  signed  by  them,  or,  1909',  486,  §  i.' 

7  in  Suffolk  county,  the  city  council  of  Boston,  by  vote  approve.     Said      p-   •   ■ 

8  amounts  shall  be  paid  by  the  county  monthly  to  the  persons  employed, 

9  including  assistants  pro  tempore  or  for  one  year  appointed  \mder  sec- 
10  tion  five. 

REFERENCES. 

§  3.     Election  of  clerks,  Chap.  54,  §  155. 

§§  95,  97.    Special  salary  of  present  incumbent,  and  apportiomnent  between  com- 
monwealth and  county,  1920,  489. 


CHAPTER    222 


JUSTICES  OF  THE  PE.\CE,  NOTARIES  PUBLIC  AND  COMMISSIONERS. 


Sect. 

justices    of    the    peace   akd    notabies 

PUBLIC. 

1.  Justices    of     the    peace    and    notaries 

public.     Appointment    and  jurisdic- 
tion. 

SPECIAL   COMMISSIONEBS. 

2.  Special  commissioners. 

COMMISSIONERS  TO         QUALIFY  PUBLIC 

OFFICERS. 

3.  Commissioners   to   qualify  public  offi- 

cers.   Appointment  and  returns. 


Sect. 

commissioners     in     other     states     and 
foreign  countries. 

4.  Commissioners    in    other    states    and 

countries. 

5.  Oath,  signature,  seal,  etc. 

6.  Powers  and  duties. 

7.  Instructions,  etc. 

S.  Justices  of  peace,  etc.,  to  affix  date  of 

expiration  of  commission. 
9.  Penalty   for   acting  as   justice   of   the 
peace,  etc.,  after  expiration  of  com- 
mission. 
10.  Penalty  for  destroying  records   of   no- 
tar>-  public. 


2396 


JUSTICES   OF  THE   PEACE,   NOTAEIES  PUBLIC,   ETC.        [ChaP.   222. 


Justices  of  the 
peace  and  no- 
taries public. 
Appointment 
and  jurisdic- 
tion. 

Const,  amend. 
4,37,57. 
(Const.  Rev. 
art.  123.) 
R.  S.  85,  §  36. 
1S51,  29. 
G.  S.  14,  §  34; 
120,  I  49. 


JUSTICES   OF  THE   PEACE   AXD    XOTARIE.S    PUBLIC. 

Section  1.  Justices  of  the  peace  and  notaries  public  shall  be  ap- 
pointed, and  their  commissions  shall  be  issued,  for  tlie  commomvealth, 
and  they  shall  have  jurisdiction  tliroughout  the  commonwealth  except 
as  pro\ided  in  section  thirty-six  of  chapter  two  hundred  and  eighteen. 
Unless  otherwise  expressly  pro\'ided  they  may  administer  oaths  or  affir- 
mations in  all  cases  in  which  an  oath  or  affirmation  is  required,  and  take 
acknowledgments  of  deeds  and  other  instruments.  ises,  157, 1 1. 


1S67,  250. 
1870,  120. 
1880,  132 
P.  S.  IS,  §  1;  155,55  2,5. 


1891,38,  §5  1.2. 

1899,  178,  5  3. 

R.  L.  17,  §  1;  161,  §§  1,2. 

131  Mass.  345. 


139  Mass.  162. 
145  Mass.  224. 
150  Mass.  586. 
Op.  A.  G.  (1918)  2. 


Special  com- 
missioners. 
1883,  252. 
1889.  197. 
1896,  476, 
§§1,2. 

1898,  574,  §  1. 

1899,  178, 
§§3,9. 
R.  L.  17, 
§§5,6:  161.  §2 
1918,  257, 
§390. 
1919,5. 

1920,  2. 

150  Mass.  586. 


SPECLtL  COMMISSIONERS. 

Section  2.  The  governor,  with  the  advace  and  consent  of  the  coun- 
cil, may  appoint  as  special  commissioners  for  terms  of  seven  years, 
women  who  are  more  than  twenty-one  years  of  age.  Special  commis- 
sioners shall  have  like  power  as  justices  of  the  peace  to  administer 
oaths,  to  take  depositions,  afEdants,  acknowledgments  of  deeds  and 
other  instruments  and  to  issue  summonses  for  witnesses.  They  shall 
be  entitled  to  like  fees  as  justices  of  the  peace  for  like  services.  A  change 
in  the  name  of  a  special  commissioner  shall  terminate  her  commission, 
but  she  may  be  reappointed  under  her  new  name. 


Commissioners 
to  qualify 
public  officers. 
Appointment 
ana  returns. 
1780,  Res.  58. 
R.  S.  13,  §  57. 
G.  S.  14,  §  40. 
1867.  138,  §  4. 


COMMISSIONERS   TO    QUALIFY   PUBLIC    OFFICERS. 

Section  3.  The  governor,  with  the  ad\'ice  and  consent  of  the  coun- 
cil, shall  appoint  commissioners  to  administer  to  public  officers  the 
oaths  of  office  required  by  the  constitution.  Upon  administering  such 
oaths,  the  commissioners  shall  forthwith  make  return  thereof,  with  the 
date  of  the  same,  to  the  state  secretary. 

p.  S.  18,  §§  7,  8.  R.  L.  17,  §  8.  Op.  A.  G.  (1920)  70. 


Commissioners 
in  other  states 
and  countries. 
1829,  125.  §  1. 
R.  S.  13,  §  53. 
1854.17,  5  1. 
1856,  253,  §  1. 
G.  S.  14, 
§§41,45. 


COMMISSIONERS   IN   OTHER  STATES   .AND   FOREIGN   COUNTRIES. 

Section  4.    The  governor,  with  the  ad\dce  and  consent  of  the  coun-  1 

cil,  may  appoint  commissioners  in  the  states,  territories,  districts  and  2 

dependencies  of  the  United  States,  and  one  or  more  commissioners  in  3 

every  foreign  country,  to  hold  office  for  three  years  from  the  date  of  4 

their  respective  appointments.  5 


P.  S.  18,  §§  9,  13. 
1901,  149. 


R.  L.  17,  §9. 
1918,  257,  §  83. 


1919,5. 
1920,  2. 


Oath,  siena- 
ture,  seal,  etc, 
1829, 125,  §  2. 
R.  S.  13,  §  56. 
1854,  17,  I  2. 
1856,  253,  §  4. 
G.  S.  14, 
§§  42,  46. 
1873,  11. 
P.  S.  18, 
§§  10,  14. 
1SS5,  31. 
R.  L.  17,  5  10. 

1918,  257,  §  84. 

1919,  5. 

1920,  2. 


Section  5.  A  person  appointed  commissioner  in  a  state,  territory,  1 
district  or  dependency  of  the  United  States  shall,  within  three  months  2 
after  his  appointment,  take  and  subscribe  an  oath  before  a  justice  of  the  3 
peace  or  other  magistrate  of  the  town  or  county  where  he  resides,  or  4 
before  a  clerk  of  a  court  of  record  within  the  state,  territory,  district  5 
or  dependency  where  he  resides,  faithfully  to  perform  the  duties  of  his  6 
office,  and  shall  cause  an  official  seal  to  be  prepared,  upon  which  shall  7 
appear  his  name,  the  words  "Commissioner  for  INIassachusetts"  and  8 
the  name  of  tlie  state,  territory,  district  or  dependency,  and  town  or  9 
county  where  he  resides.  A  person  appointed  commissioner  in  a  foreign  10 
country  shall,  before  performing  any  duty  of  his  office,  take  and  sub-  11 
scribe  an  oath  before  a  judge  or  clerk  of  a  court  of  record  of  the  coun-  12 


CH-VP.   222.]  JUSTICES   OF  THE   PEACE,   NOTARIES   PUBLIC,   ETC.  2397 

13  try  where  he  resides  or  before  an  ambassador,  minister  or  consul  of  the 

14  United  States  accredited  to  such  country,  faithfully  to  perform  the  duties 

15  of  his  office.     In  each  case,  a  certificate  of  the  commissioner's  oath 

16  of  office  and  his  signature  and  an  impression  of  his  official  seal  shall  be 

17  forthwith  transmitted  to  and  filed  in  the  office  of  the  state  secretary. 

1  Section  6.     A  commissioner  may,  in  his  state,  territory,  district.  Powers  and 

2  dependency  or  country,  administer  oaths  and  take  depositions,  affida-  i829!^i25,  §  i. 

3  vits  and  acknowledgments  of  deeds  and  other  instruments,  to  be  used  §§  ssils. 

4  or  recorded  in  this  commonwealth,  and  the  proof  of  such  deeds,  if  the  Hit]  zssf  ^' 

5  grantor  refuses  to  acknowledge  the  same,  all  of  which  shall  be  certified  ^^  l~\^ 

6  by  him  under  his  official  seal.  p.  s.  is.  §§  ii,  is.  5§  43, 47. 

R.  L.  17,  §11.  191S,  257,  §  85.  1919,5.  1920,2. 

1  Section  7.     The  state  secretary-  shall  prepare  and  forward  to  each  instructions, 

2  commissioner  appointed  under  section  four,  instructions  and  forms  in  is54, 17, 1 4. 

3  conformity  to  law,  and  a  copy  of  the  three  preceding  sections.  p;  f;  is,'  |  fi' 

R.  L.  17,  §  12. 

1  Section  8.    A  justice  of  the  peace,  notary  public  or  special  com-  Justices  of 

2  missioner,  when  taking  acknowledgment  of  any  instrument  provided  affix  daVe'^of*" 

3  by  law  to  be  recorded,  shall  affix  thereto  the  date  of  the  expiration  of  his  com'mi'sSon.' 

4  commission  in  the  following  language:  " My  commission  expires  ".  rIY'I"' 

5  Failure  to  comply  with  this  section  shall  not  affect  the  validity  of  any 

6  instrument,  or  the  record  thereof. 

1  Section  9.    '\^^loever  presumes  to  act  as  a  justice  of  the  peace.  Penalty  for 

2  notary  public  or  special  commissioner  after  the  expiration  of  his  com-  fust^Mofthe 

3  mission,  and  after  receiving  notice  of  such  expiration,  shall  be  punished  afTer^'expir'ation 

4  by  a  fine  of  not  less  than  one  hundred  nor  more  than  five  hundred  ?|65™3if§°2.' 

5  dollars.  p.  s.  205, 1 24.  1899,  i78,  §  s.  r.  l.  210,  §  34. 

1  Section  10.     Whoever  knowingly  destroys,  defaces  or  conceals  the  Penalty  for 

2  records  or  official  papers  of  a  notary  public  shall  forfeit  not  more  than  recordsot* 

3  one  thousand  dollars  and  be  liable  for  damages  to  any  person  injured  lygiy^J',"!'!.'^' 

4  thereby. 

R.  S.  13,  §  50.  G.  S.  14,  §  38.  P.  S.  18,  §  5.  R.  h.  17,  §  4. 

REFERENCE. 

State  secretary  to  send  notice  of  expiration  of  commissions  to  notaries  public, 
etc..  Chap.  9,  §  15. 


2398 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ChAP.   223. 


TITLE    II. 

ACTIONS  AND  PROCEEDINGS  THEREIN. 

Chapter  223.  Commencement  of  Actions,  Service  of  Process. 

Chapter  224.  Arrest  on  Civil  Process. 

Chapter  225.  Process  after  Judgment  for  Necessaries  or  Labor. 

Chapter  226.  Bail. 

Chapter  227.  Proceedings  against  Absent  Defendants  and  upon  Insufficient  Service. 

Chapter  228.  Survival  of  Actions  and  Death  and  Disabilities  of  Parties. 

Chapter  229.  Actions  for  Death  and  Injuries  resulting  in  Death. 

Chapter  230.  Actions  by  and  against  Executors  and  Administrators. 

Chapter  231.  Pleading  and  Practice. 

Chapter  232.  Set-off  and  Tender. 

Chapter  233.  Witnesses  and  Evidence. 

Chapter  234.  Juries. 

Chapter  23.5.  Judgment  and  Execution. 

Chapter  236.  Levy  of  E.xecutions  on  Land. 


CHAPTER    223. 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS. 


Sect. 


VENCE    OF   ACTIONS. 


1.  Venue  of  transitory  actions. 

2.  In  district  courts. 

3.  Certain  actions  transitory. 

4.  Venue  of  actions  of  replevin. 

5.  Actions  by  the  commonwealth. 

6.  Actions  by  and  against  counties. 

7.  Action  for  defect  in  way,  etc.,  and  for 

negligence. 

8.  Actions  by  and  against  corporations. 

9.  Venue  of  transitory  actions   by  and 

against  city  of  Boston. 

10.  Transfer  from  county  of  Suffolk. 

11.  Actions  by  and  against  executors,  etc. 

12.  Actions  relative  to  land  in  different 

counties,  etc. 

13.  Change  of  venue. 

14.  Venue  for  recovery  of  forfeitures. 

15.  Erroneous  venue. 

POKMS,   ISSUING    AND    RETURN    OF    WRITS. 

16.  Civil  actions,  how  commenced. 

17.  Separate  summons  after  attachment. 

18.  When  writ  and  summons  may  be  com- 

bined. 

19.  Proceedings  if  defendant's  name  is  un- 

known. 


Sect. 

20.  Writs,  how  issued. 

21.  Subpoena  in  equity  suit,  how  issued. 

22.  Writs,  when  returnable. 

23.  Same  in  district  courts. 

24.  Return  days  in  supreme  judicial  and 

superior  courts. 

25.  Return  days  in  district,  etc.,  courts. 

SERVICE    ON   defendant. 

20.  Directions  for  attachment  or  arrest. 

27.  Service  of  original  writs. 

28.  Service  on  county,  etc. 

29.  Service  of  summons. 

30.  Same  subject. 

31.  Service  by  lea\nng,  etc. 

32.  Service   of   summons   on   absent   de- 

fendant, if  co-defendant  here. 

33.  Service  in  real  action  against  absent 

tenant. 

34.  Further  notice  to  absent  defendant. 

35.  Officer  to  state  in  return  place  of  leav- 

ing summons,  etc. 

36.  Service  on  corporations,  etc.,  by  copy, 

etc. 

37.  Actions  against    corporations,   person 

upon  whom  service  shall  be  made. 

38.  Service  on  foreign  corporations. 


Chap.  223.]      commencement  of  actions,  service  of  process. 


2399 


Sect. 

39.  Service  on  foreign  insurance  company. 

40.  Service  on  certain  voluntary  associa- 

tions. 

41.  Service  of  summons  in  suits  in  equity. 


ATTACHMENT 


OF      PROPERTY  - 
PROVISIONS. 


42.  Property  liable  to  attachment. 

43.  Attachment  of  cars  and  vessels. 

44.  Declaration  to  be  inserted  in  writ,  etc., 

before  attachment  of  ship  or  vessel. 

45.  Property  of  newspaper  offices. 

46.  Successive  attachments  on  the  same 

writ. 

47.  Successive   attachments   on    different 

writs. 

48.  Keeper. 

49.  Property   to   remain   on   premises   in 

certain  cases. 

50.  Attachment  of  bulky  goods. 

51.  Same  subject. 

52.  Attachment  of  proceeds  of  property 

sold. 

53.  Further  attachment  of   property  re- 

plevied. 

54.  Plaintiff  in  replevin  liable  for  value. 

55.  Attachment  after  death,  etc.,  of  first 

attaching  officer. 

56.  Proceedings  in  such  case. 

57.  Mode  of  attaching  replevied  property. 

58.  Attachment  to  continue  after  death 

of  attaching  officer. 

59.  Attachment  effective  for  thirty  days 

after  judgment. 

60.  Same  in  equity  for  thirty  days  after 

right  of  appeal  has  expired. 

61.  Final  judgment  defined. 

ATTACHMENT   OF   REAL   ESTATE   AND    LEASE- 
HOLDS. 

62.  Attachment   of  land   and   leaseholds. 

63.  Deposit  of  copy  of  writ. 

64.  Duty  of  officer. 

65.  Duty  of  register. 

66.  When  attachment  takes  effect. 

67.  Attachment  of  land  fraudulently  con- 

veyed, etc. 

68.  Entry  of  name  of  holder  of  legal  title, 

etc. 

69.  Duties  of  registers  as  to  papers  in  ac- 

tions in  United  States  courts. 

70.  Attachment  of  encumbered  land. 

ATTACHMENT   OF   SHARES    OF   STOCK. 

71.  Attachment  of  shares  of  stock. 

ATTACHMENT    OF    PROPERTY    IN    POSSESSION 
OF    BAILEE. 

72.  No  attachment  or  levy  of  goods  for 

which    a    negotiable    document    of 
title  is  outstanding. 

73.  Attachment  of  property  in  possession 

of  carrier  or  warehouseman. 


Sect. 

attachment  of  encumbered  personalty. 

74.  Attachment  of  mortgaged  property. 

75.  Mortgagee  to  state  account. 

76.  Penalty  for  excessive  demand. 

77.  Debt  to  be  repaid  out  of  proceeds  of 

sales. 

78.  Defendant  to  pay  attaching  plaintiff 

for  redemption  of  mortgage. 

79.  Attachment  of  mortgaged  personalty 

in  debtor's  possession. 

50.  Determination  of  amount  due. 

51.  Determination   of   validity   of   mort- 

gage. 

82.  Creditor   to   retain   amount   paid   by 

him,  etc. 

83.  Creditor  not  recovering  judgment  to 

hold  property  until  repaid. 


SUPPLEMENTARY    PROCESS. 

84.  Further  service  after  defective  service. 

85.  Attachments  and  arrests  during  pen- 

dency of  suit. 

86.  Precepts,  form,  etc. 

SALE     OF    PERSONAL    PROPERTY     ATTACHED. 

87.  Sale  of  property  attached. 

88.  Appraisal  and  sale  of  perishable  prop- 

erty. 

89.  Appraisal  and  sale  of  perishable  prop- 

erty; proceedings. 

90.  Notice  to  absent  defendant. 

91.  Appraisers,  how  appointed. 

92.  Sale  after  appraisal. 

93.  Delivered  to  defendant. 

94.  Bond  to  be  returned  with  the  writ. 

95.  Action  on  bond  by  creditors. 

96.  Money  recovered  to  belong  to  them. 

97.  Distribution  by  court. 

98.  Prior  attachments  to  be  protected. 

99.  Creditor  not  joining  in  action  on  the 

bond,  etc. 

100.  Limitation. 

101.  Creditor  may  be  paid,  when. 


ATTACHMENT    OF    SHARE    OF    JOINT    OWNER 
OF    PERSONALTY. 

102.  Appraisal  at  request  of  part  owner. 

103.  Delivery  to  part  owner. 

104.  Pledge  of  property. 

105.  Restoration. 


FRAUDULENT  ATTACHMENTS. 

106.  Fraudulent     attachments,     how 

feated. 

107.  Affidavit  and  bond. 

lOS.  Dissolution  of  prior  attachment. 

109.  Effect  of  pleadings. 

110.  Defences  in  such  case. 

111.  Damages  and  costs. 

112.  Proceedings  upon  appeal. 

113.  Effect  of  judgment. 


de- 


2400 


COMSIENCEMENT  OF  ACTION'S,  SERVICE  OF  PROCESS.       [ChAP.   223. 


Sect. 

keducnon  or  discharge  of  attachment. 

114.  Excessive   and   unreasonable    attach- 

ments, how  reduced  or  discharged. 

DISSOLUTION    OP   ATTACHMENT. 

By  Operation  of  Law. 

115.  Dissolution   of   attachment   by   judg- 

ment. 

116.  Dissolution  of  attachment  by  death 

of  defendant. 

117.  Liability  of  officer  for  net  proceeds, 
lis.  Liability  of  creditor  for  proceeds  paid 

over  to  him. 

119.  Set-off  not  allowed  in  such  case. 

By  giving  Bond. 

120.  Attachments  dissolved  by  giWng  bond. 

121.  Hearing  before  approval  of  bond. 

122.  Fees   to    be   included   in    defendant's 

costs. 

123.  Bond  to  be  filed  by  defendant. 


Sect. 

124.  Release  of  sureties  of  insolvent  debtor. 

125.  Bond  to  pay  value  of  property. 

126.  Fees. 

127.  Dissolution   of  attachment   of   realty 

fraudulently  conveyed. 

128.  Dissolution  by  deposit. 

129.  Dissolution  of  attachment  of  indi«d- 

ual  property  of  one  defendant. 

By  Appointment  of  Receiver. 

130.  Dissolution  of  attachment  by  appoint- 

ment of  receiver. 

131.  Discharge  of  receiver. 

By  Entry  or  Release  in  Registry  of  Deeds. 

132.  Dissolution  of  attachment  of  real  es- 

tate by  plaintiff. 

EXECUTION   OF   BONDS. 

133.  Execution  of  bonds. 


Venue  of  trans- 

itory actions. 

C.  L. 

2.  §2. 

1749- 

-50,  9. 

1784 

28.  §  13. 

R..S. 

90, 

§§14 

.  15. 

1854 

322. 

1855 

12. 

1856 

70. 

G.  S. 

123,  §  1. 

P.S. 

161,  §  1. 

R.L 

167,  §  1. 

VENXJE  OF  ACTIONS. 

Section  1.     A  transitory  action  shall,  except  as  otherwise  provided,  1 

if  any  one  of  the  parties  thereto  lives  in  the  commonwealth,  be  brought  2 

in  the  county  where  one  of  them  lives  or  has  his  usual  place  of  busi-  3 

ness.    If  brought  in  any  other  county,  unless  remo^■ed  under  section  4 

fifteen,  the  writ  shall  abate  and  the  defendant  shall  be  allowed  double  5 

costs.    If  neither  party  lives  in  the  commonwealth,  the  action  may  be  6 

brought  in  any  county.  7 

4  Mass.  591.  10  Gush.  415.  16  Gray,  116.  156  Mass.  522. 

6  Mass.  331.  12  Gush.  284.  1  Allen,  529.  221  .Mass.  125. 

3  Met.  209.  6  Gray,  122.  4  Allen,  17.  233  Mass.  162. 

6  Gush.  560.  15  Gray,  50. 


In  district 

courts. 

R.  S.  S7,  §  35 

G.  S.  116,  §  19. 

1866,  47. 

1869,  17,  §  3. 

1874,  271,  §  8. 

1875,  106,  §  2. 

1876,  184. 

1878,  72. 

1879,  154. 

P.  S.  154,  §§  14, 
15,  46,  48,  49, 
60:    175,  §  3. 
1893,  396,  I  13. 
1894.398.  §  1; 
431. 

R.  L.  167,  §  2. 
1912,649,  §  1. 
1913,  644. 
161  Mass.  440. 
164  Mass.  144, 
170  Mass.  569. 
201  Mass.  557. 
218  Mass.  333. 


Section  2.  A  transitory  action  in  a  district  court  shall  be  brought  1 
in  the  county  where  one  of  the  defendants  lives  or  has  his  usual  place  2 
of  business,  or,  if  commenced  by  trustee  process,  in  the  county  where  3 
all  persons  named  in  the  writ  as  trustees  live  or  have  their  usual  places  4 
of  business,  and,  in  either  case,  in  a  court  within  whose  judicial  district  5 
one  of  the  parties  lives  or  has  his  usual  place  of  business,  except  that  an  6 
action  commenced  by  trustee  process  may  be  brought  in  the  municipal  7 
court  of  the  city  of  Boston  if  any  trustee  resides  or  has  his  usual  place  8 
of  business  in  Suffolk  county.  9 

Said  courts  shall  have  jurisdiction  of  a  transitory  action  against  a  10 
defendant  who  is  not  an  inhabitant  of  the  commonwealth,  if  personal  11 
service  or  an  effectual  attachment  of  property  is  made  within  the  12 
commonwealth;  and  such  action  may  be  brought  in  any  of  said  courts  13 
in  the  coimty  where  the  service  or  attaclunent  was  made.  14 


SaStory'!""'"      Section  3.     Evcry  action  for  rent,  use  and  occupation  or  breach  of     1 
1915, 146,  §3.    covenant  shall  be  considered  a  transitorv  action.  2 


Venue  of 
actions  of 
replevin. 
1789,  26,  §  4. 


Section  4.     An  action  of  reple\in  shall  be  brought  in  the  county     1 
where  the  goods  or  beasts  are  detained.  2 

R.  S.  113,  §28.  G.  S.  143,  §11.  P.  S.  184,  §  11.  R.  L.  167,  §  3. 


Chap.  223.]      commencement  of  actions,  service  of  process.  2401 

1  Section  5.     A  civil  action  in  which  the  commonwealth  is  plaintiff  or  Actions  by  the 

2  in  which  money  due  to  the  commonwealth  is  sought  to  be  recovered  isec,  233,  §  1. ' 

3  may  be  brought  in  the  county  where  the  defendant  lives  or  has  his  r.l.\*07,§4. 

4  usual  place  of  business,  or  in  Suffolk  county. 

1  Section  6.     A  local  or  transitory  action  by  a  county  shall  be  brought  Actions  by 

2  in  the  county  where  the  defendant  hves  or  in  a  county  adjoining  the  coimtfes.  ^ 

3  plaintiff  countj-.     If  the  defendant  lives  in  the  plaintiff"  county,  it  shall  r.  s.'9o, ' 

4  be  brought  in  an  adjoining  county.    Such  action  against  a  county  shall,  ^  a  123, 

5  at  the  election  of  the  plaintiff,  be  brought  in  the  comity  where  he  lives,  ^  |'  f-^^ 

6  in  the  defendant  county  or  in  an  adjoining  county.  55  s,  6. 

R.  L.  167,  §  5.  2  Mass.  544. 

1  Section  7.     An  action  against  a  town  or  person  to  recover  for  injury  Action  for 

2  or  damage  received  by  reason  of  a  defect,  want  of  repair  or  of  an  insufB-  efcrandfor^' 

3  cient  raiUng  in  or  upon  a  public  way  shall  be  brought  in  the  county  is77f |§4^§ s. 

4  where  said  town  is  situated  or  in  the  county  Avhere  the  plaintiff  lives,  ^- 1;  \o7,V6. 

5  except  that  such  action  against  the  city  of  Boston  may  be  brought  in  J|]^^'|j5- 

6  Middlesex  county,  in  Norfolk  county  or  in  the  county  where  the  plain-  §  145.     ' 

7  tiff  Ua'cs,  and  such  action  against  the  town  of  Nantucket  or  against  any  218  Mask  333. 

8  town  in  Dukes  county  may  be  brought  in  Bristol  county.     An  action 

9  against  a  town  or  person  to  recover  for  injury  or  damage  received  in 

10  the  commonwealth  by  reason  of  negligence  other  than  that  relating  to 

11  such  defect,  want  of  repair  or  insufficient  railing  shall  be  brought  in  the 

12  county  where  the  plaintiff  lives  or  has  his  usual  place  of  business,  or  in 

13  the  county  where  the  alleged  injury  or  damage  was  received. 

1  Section  8.     Transitory  actions,  except  those  mentioned  in  the  pre-  Actions  by 

2  ceding  section,  to  which  a  corporation,  other  than  a  county  or  the  city  corjjorations. 

3  of  Boston,  is  a  party,  may  be  brought  as  follows:  isse,  4,'§  12.' 

4  (1)  If  both  parties  are  cities,  toA\iis  or  parishes,  in  the  county  where  p|;i|f;||; 

5  either  party  is  situated.  f  Met^  2^12!  ^' 

6  (2)  If  both  parties  are  corporations,  other  than  a  city,  town  or  parish,  ecush.sM 

_    .  K  ,  .    ,        .    ,  .  ,  11  PI-  16  Gray,  116. 

7  in  any  county  in  which  either  corporation  has  a  usual  place  oi  business,  9s  Mass.  95. 

•  ,   •,■,,,•,       1        ,  1  ,•  11       1      1  1      -i  i-  99  Mass.  534. 

8  or  in  which  it  held  its  last  annual  meetmg,  or  usually  holds  its  meetings.  137  Mass.  252. 

9  (3)  If  one  party  is  a  city,  town  or  parish,  and  the  other  a  corporation  Hf  Mass!  557. 

10  named  in  clause  (2),  in  any  county  in  which  either  party  might  sue  or 

11  be  sued. 

12  (4)  If  one  party  is  a  corporation  named  in  clause  (1)  or  (2),  and  the 

13  other  an  indi\idual,  in  any  county  in  which  the  corporation  might  sue 

14  or  be  sued,  or  in  the  county  in  which  the  indiA-idual  lives  or  has  a  usual 

15  place  of  business. 

1  Section  9.     An   action   by  or   against   the   city   of  Boston,    except  .^^^^^^fi^'^^^y 

2  actions  mentioned  in  section  seven  and  actions  by  the  collector  of  said  and  against 

...  .  fl       J  .  citv  01  Boston. 

3  city  under  sections  thirty-five  and  tliirty-six  of  chapter  SLxty,^  may  isos,  i9^§  1.^ 

4  be  brought  in  Suffolk,  Essex,  Middlesex  or  Norfolk  county,  or  in  the  is28;  13,  §  1. ' 

5  county  in  which  the  plaintiff  lives.  k.  s,  90,  §§  120, 121. 

1836,  4,  I  13.  1878,  225.  R.  L.  167,  §  8. 

G.  S.  123,  §  6.  P.  S.  161,  §  9.  223  Mass.  367. 

1  Section  10.    The  defendant  in  an  action  brought  in  Suffolk  county  Transfer^from 

2  by  the  city  of  Boston  or  by  its  collector  may,  if  the  action  is  brought  suCik." 

3  in  the  supreme  judicial  or  superior  court,  witliin  thirty  days  after  the  r'^'JoI 

4  day  for  appearance,  or  if  the  action  is  commenced  in  a  district  court  ||3of4',\'i3. 


2402 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [CbL\.P.   223. 


G.  s.  123,  §  7.    and  removed  to  the  superior  court  or  taken  thereto  on  appeal,  witliin  5 

1SS5. 384,  §  14.  thirty  days  after  the  entry  in  the  superior  court,  file  a  motion  in  writing  6 

R.  L.  167, 1 9.    i^j.  ^j^g  removal  of  the  action  to  Essex,  Middlesex  or  Norfolk  county;  7 

and  the  court  shall  thereupon  order  it  to  be  removed  to  the  same  court  8 

in  such  one  of  said  counties  as  the  attorney  of  the  city  of  Boston  elects.  9 


andagainat  Section  11.     A  transitorv  action  by  or  against  an  executor  or  ad- 

i865"\T'§^i?'    ministrator  may  be  brought  in  a  county  in  wliich  it  might  have  been 
p.  s.  161,  §  2.     brought  by  or  against  the  testator  or  intestate  at  the  time  of  his  decease. 

R.  L.  167,  §  10. 


Actions  relative 
to  land  in 
different 
counties,  etc. 
1859,  37. 
G.  S.  123,  §  2. 
P.  S.  161,  §  3. 
R.  L.  167,  §  11. 
102  Mass.  458. 


Section  12.  If  a  tract  of  land  lies  in  two  or  more  counties,  an  action 
relative  to  it,  to  which  neither  a  county,  the  city  of  Boston  nor  any 
corporation  named  in  section  eight  is  a  party,  may  be  brought  in  any 
of  said  counties,  and  the  declaration  shall  be  so  drawn  as  to  include  the 
whole  tract. 


Change  of 
venue. 
1887,  347. 
R.  L.  1B7.  §  12. 
208  Mass.  162. 


Section  13.  If  tlie  supreme  judicial  or  superior  court  finds  that  a  1 
party  to  an  action  or  proceeding  pending  therein  cannot,  by  reason  of  2 
local  prejudice  or  other  cause,  have  an  impartial  trial  in  the  county  3 
where  the  action  or  proceeding  was  commenced,  it  may,  upon  the  appli-  4 
cation  of  either  party,  order  it  to  be  removed  for  trial  to  another  county.  5 
Upon  the  entrs'  of  such  order,  the  clerk  of  the  court  in  wliich  the  action  6 
or  proceeding  is  pending  shall  forthwith  transmit  all  the  papers  in  the  7 
case  and  a  certified  copy  of  said  order  to  the  clerk  of  the  court  for  the  8 
county  to  wliich  it  has  been  ordered  to  be  removed.  The  clerk  who  9 
receives  such  papers  and  order  shall  forthwith  enter  them  on  liis  docket,  10 
and  the  case  shall  thereupon  proceed  as  if  it  had  been  originally  com-  11 
nienced  in  the  countv  to  which  it  has  been  removed.  12 


Venue  for  re- 
covery of  for- 
feitures. 
R.  S.  90,  §  17. 
G.  S.  123,  §  8. 
P.  S.  161,  §  11. 
R.  L.  167,  §  13. 
216  Mass.  344. 


Section  14.     A  civil  action  for  the  recovery  of  a  forfeiture,  except  1 

an  action  in  which  the  commonwealth  is  plaintiff,  or  in  which  money  is  2 

sought  to  be  recovered  for  the  commonwealth,  shall  be  brought  in  the  3 

coimty  where  the  offence  was  committed,  unless  the  statute  imposing  4 

the  forfeiture  otherwise  provides.  5 


Erroneous 
-venue. 

1851,  233, 
^  117. 

1852,  312,  §  80. 
G.  S.  129,  §  70. 
1880,  251. 

P.  S.  IGl,  §  12; 
167,  §  73. 
R.  L.  167,  §  14. 
130  Mass.  335. 
133  Mass.  466. 
152  Mass.  268. 
233  Mass.  162. 


Section  15.     If  a  local  action  commenced  in  the  supreme  judicial  1 

or  superior  court  has  been  brought  in  the  wrong  county,  the  com-t  may,  2 

if  the  error  is  discovered  at  the  trial,  of  its  own  motion  order  a  non-  3 

suit,  unless  good  cause  is  shown  why  the  trial  should  be  allowed  to  pro-  4 

ceed;  or,  if  the  error  is  discovered  at  any  stage  of  the  proceedings  of  an  5 

action,  local  or  transitory,  the  court  may,  upon  motion  of  either  party,  6 

order  the  action,  ^^^th  all  papers  relating  thereto,  to  be  removed  to  the  7 

proper  county  upon  terms  to  the  defendant;    and  it  shall  thereupon  8 

be  entered  and  prosecuted  in  the  same  court  for  that  coimty  as  if  it  had  9 

been  originally  commenced  therein,  and  all  prior  proceedings  other^\'ise  10 

regularly  taken  shall  thereafter  be  valid.  11 


Civil  actions, 
how  com- 
menced. 
Const,  pt.  2, 
c.  6,  art.  5. 
(Const.  Rev. 
art.  144.) 


FORMS,   ISSUING   AND   RETURN  OF  WRITS. 

Section  16.     Actions  at  law,  unless  founded  on  scire  facias  or  other  1 

special  writs,  or  unless  otherwise  authorized  by  statute  or  by  established  2 

practice,  shall  be  commenced  by  original  writs.     Such  'WTits  shall  be  3 

signed,  sealed  and  bear  teste  as  required  by  the  constitution,  and  shall  4 


CH-^P.   223.]        COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.  2403 

5  be  framed  either  to  summon  the  defendant,  with  or  without  an  order  17,S4,28. 

6  to  attach  his  goods  or  estate,  or  to  attach  his  goods  or  estate  and,  for  u.''s.'9o.      ' 

7  want  thereof,  to  take  his  body;   or,  in  an  action  commenced  by  trustee  io9V§t Irl.' 

8  process,  to  attach  his  goods  or  estate  in  his  own  hands  and  also  in  the  ^^f  Jo^i3_i5. 

9  hands  of  the  trustee.     Original  writs  shall  be  in  the  form  heretofore  i^l  ^Ig' f -,7. 

10  established  bv  law  and  by  the  usage  and  practice  of  the  coiu-ts.     If  ifii.  §§  I'a.  u,' 

*   •  .  17—19'  183  5  2 

1 1  changes  in  their  form  are  necessary  in  order  to  adapt  them  to  changes  r.  l.  io7,  §  is.' 

12  in  the  law,  or  for  any  other  sufficient  reason,  the  courts  may  make  such  22411333.9; 

13  changes,  subject  to  the  final  control  of  the  supreme  judicial  court,  which 

14  may  by  general  rule  regulate  such  changes  in  all  the  courts. 

1  Section  17.     A  separate  summons  shall  be  served  on  the  defendant  Separate  sum- 

1  p  1  •  1       1  'IP  "^'^'^^  after 

2  after  an  attachment  of  property  on  the  writ,  and  the  service  thereof  ?,"?'''l,"'f".'- 

3  shall  be  a  sufficient  service  of  the  original  summons.  1700-1,20,  §  1. 

1797,  50,  §  1.  P.  S.  161,  §  15.  106  Mass.  217. 

R.  S.  90.  §  4.  R.  L.  1G7,  §  16.  124  Mass.  468. 

G.  S.  123,  §  11.  13  Met.  471.  145  Mass.  340. 

1  Section  18.     In  actions  again.st  corporations,  and  in  other  actions  when  writ  and 

2  in  which  property  may  be  attached,  but  in  which  the  defendant  is  not  be^TOmCrnTcf.^ 

3  liable  to  arrest,  the  writ  of  attachment  and  original  summons  may  be  ai;i23,S^i2. 

4  combined  in  one,  requiring  the  officer  to  attach  the  goods  and  estate  and  ^  ^  \*ii'7,yi''7 

5  to  summon  the  defendant.  s  Mass.  193.  1  Pick.  497. 

1  Section  19.     If  the  name  of  a  defendant  is  not  known  to  the  plain-  Proceedings  if 

2  tiff,  the  writ  may  be  issued  against  him  by  a  fictitious  name,  and,  if  nameis" 

3  duly  served,  shall  not  be  abated  for  that  cause,  but  may  be  amended,  r"!"  9o"§  54. 

4  and  terms  may  be  imposed. 

G.  S.  123,  §  16.  R.  L.  167,  §  IS.  142  Mass.  558. 

P.  S.  161,  §  20.  10  Met.  436.  216  Mass.  459. 


1  Section  20.     Writs  and  processes  in  the  supreme  judicial  and  the  Writs,  how 

2  superior  court  shall  be  signed,  and  may  be  issued,  by  the  clerk,  may  conlt.'  pt.  2, 

3  be  returnable  to  the  same  court  in  any  other  county,  may  run,  and  shall  Js^brra,^^  3. 

4  be  executed  and  obeyed,  throughout  the  commonwealth. 

R.S.  82,  §35;  90,  §12,  6.  G.  S.  123,  §  17.  R.  L.  167,  §  19. 

1836,  4,  §  9.  P.  S.  161,  §  21.  224  Mass.  9. 

1  Section  21.     Subpoenas  on  bills  in  equity  shall  bear  teste  of  the  subpoena  in 

2  first  justice  of  the  court  who  is  not  a  party  to  the  suit,  and  shall  be  how  issued! 

3  under  the  seal  of  the  court  and  signed  by  the  clerk. 

R.  S.  90.  §118.  P.  S.  161,5  22. 

G.  S.  123,  §  18.  R.  L.  167,  §  20. 

1  Section  22.     An  original  writ   issued  by  the  supreme  judicial   or  writs,  when 

2  superior  court,  if  required  to  be  served  fourteen  days  before  the  return  if  ^"90,  §ii6. 

3  day,  shall  be  returnable  at  the  election  of  the  plaintiff  at  any  return  R' f;  icf;  1 23.' 

4  day  which  occurs  after  the  expiration  of  fourteen  days  from,  and  ■R'ithin  i^ss,  3S4,  |  l 

5  three  months  after,  the  date  of  the  writ;   and,  if  required  to  be  served  153  Mass'.  104. 

6  thirty  days  before  the  return  day,  sliall  be  returnable  at  the  election 

7  of  tJie  plaintiif  at  any  return  day  which  occurs  after  the  expiration  of 

8  thirty  days  from,  and  within  three  months  after,  the  date  of  the  writ. 

1  Section  23.     Except  in  actions  by  trustee  process,  an  original  writ  ,^f",tt"enurts. 

2  issued  by  a  district  court  shall  be  returnable  not  more  than  sixty  days  ji-js.  hs.  ^  ^^ 

3  after  the  date  thereof.  is94, 39s,  §  2;  431.  r.  l.  i67,  §  22. 


2404 


COiniENCEMEXT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ClLVP.   223. 


Return  days 
in  supreme 
judicial  and 
superior  courts. 
R.  S.  90.  §  llii. 
G.  S.  123,  §  19. 
P.  S.  161.  §  23. 
1885,384,  §  I. 
R.L.  1R7,  §24. 
1907,  176. 
153  Mass.  104. 


Section  24.  The  first  Monday  of  every  month  shall  be  a  return  day  in  1 
every  county  for  ^mts,  processes,  notices  to  appear  and  citations  in  all  2 
actions,  suits  and  other  civil  proceedings  in  the  supreme  jutlicial  court  3 
and  the  superior  com-t,  and  for  the  entry  in  the  superior  court  of  actions  4 
removed  or  appealed  from  district  courts.  If  said  first  JNIonday  is  a  legal  5 
holiday,  such  writs,  processes,  notices  and  citations  shall  be  returned,  6 
and  such  suits  entered,  on  the  day  follomng.  Such  x\Tits,  processes,  no-  7 
tices  and  citations  may  be  made  returnable,  at  the  election  of  the  party  8 
who  takes  out  the  same,  at  any  return  day  within  three  months  after  the  9 
date  thereof;  but  said  courts  may  make  them  returnable  at  other  times.  10 
If  they  issue  out  of  the  supreme  judicial  court  for  Dukes  or  Nantucket  11 
county,  they  shall  be  returnable  in  Bristol  county.  12 


Sslricltt?.','"  Section  25.  Saturday  of  each  week  shall  be  the  return  day  for 
is93?396.  §  22.  ^'"ts,  proccsscs,  noticcs  to  appear  and  citations  in  all  civil  actions  and 
ms' 338" ^ ^^'  proceedings  in  district  courts;  but  said  courts  may  make  them  return- 
able at  other  times,  ^^lien  the  court  is  required  to  be  held  at  two  or 
more  places,  writs  shall  be  made  returnable  at  the  place  where  the 
clerk's  office  is  kept,  except  that  when  the  regular  session  of  the  court 
for  the  trial  of  civil  cases  is  held  upon  the  return  day  at  some  other 
place,  such  writs  may  be  made  returnable  at  the  place  where  such  session 
is  held,  and  notices  and  citations  may  be  made  returnable  at  any  place 
appointed  by  law  for  holding  the  court. 


1 
2 
3 
4 
5 
6 
7 
8 
9 
10 


SER^^CE   ON  DEFEND.\NT. 


Section  26.     If  the  writ  requires  the  officer  to  attach  the  goods  or 


Directions  for 
attachment 

R. s"9o!§ 56.  estate  of  the  defendant  and  for  want  thereof  to  take  his  body,  the 
p'liei'He^'  plaintiff  or  his  attorney  may  by  written  or  verbal  directions  require  the 
R-  L.  107,  §  26.  officer  to  serve  the  writ  by  an  attachment  of  goods  or  estate  or  by  the 

arrest  of  the  defendant,  if  such  arrest  is  authorized,  and  the  officer  shall 

serve  the  writ  according  to  such  directions. 


Ser\nce  of 
original  WTits. 
C.  L.  330.  §  4. 
1699-1700, 
3,  §4. 

1783,42.  §  1. 
R.  S.  85,  §  8; 
90.  §  21. 
G.  S.  123.  §  21. 
P.  S.  1.54.  §  IG; 
161,  §  27. 
1893,  396.  §  17. 
1S94.  398,  I  2, 
R.  L.  167,  §  27. 
5  Met.  334. 
12  Gush.  78. 


Section  27.    An  original  \mt  issued  by  the  supreme  judicial  or  the  1 

superior  court  shall  be  served  fourteen  days  at  least  before  the  return  2 

day.    An  original  wTit  issued  by  a  district  com-t  may  be  directed  to  and  3 

served  by  any  officer  qualified  to  ser^■e  ci^^l  process  in  actions  im'olving  4 

the  amount  of  damages  claimed  in  the  wTit,  and  shall  be  served  not  less  5 

than  seven  nor  more  than  sixty  days  before  the  return  day;  but  if  such  6 

writ  is  to  be  served  in  a  county  other  than  that  in  wliich  the  court  issuing  7 

it  is  held,  it  shall,  except  in  trustee  process,  be  served  at  least  fourteen  8 

da.ys  before  the  return  dav.  9 


SerWce  on 
countv,  etc. 
1694-5,  15.  §  3. 
1726-7,  15,  §  3. 
1783,  39,  §  6. 
1785.  75.  §  8. 
R.  S.  90,  §  22. 
G.  S.  123,  §  22. 
P.  S.  161.  §28. 
R.  L.  167.  §  28. 
1906.  201.  §  1. 
1911,  628,  I  17. 
1920.  591.  I  2. 
109  Mass.  313. 


Section  28.     A  writ  in  an  action  against  a  county,  city,  town,  parish  1 

or  religious  society,  or  against  proprietors  of  wharves,  general  fields  or  2 

real  estate  lying  in  common,  who  are  mcorporated,  or  against  a  foreign  3 

fraternal  benefit  society,  shall  be  served  thirty  days  at  least  before  the  4 

return  day,  except  that  when  a  county,  city,  town,  parish  or  religious  5 

society  is   summoned   as  a   trustee,  or  the  incorporated  proprietors  of  6 

whar\-es,  general  fields  or  real  estate  hing  in  common  are  summoned  7 

as  trustees,  by  a  writ  which  is  issued  by  a  district  court,  it  shall  be  served  8 

seven  days  at  least  before  the  return  dav.  9 


CH.4.P.   223.]         COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.'  2405 

1  Section  29.     A  separate  summons  which  is  served  after  an  attach-  service  of 

2  ment  of  property  shall  be  served  by  delivering  it  to  the  defendant  or  nSr^sofs  i. 

3  by  leaving  it  for  him  as  hereinafter  provided ;  and  an  original  summons  §;  |;  ?§3,^§^23. 

4  without  an  attachment  shall  be  served  by  reading  it  to  the  defendant,  ^  l\''67\|9 

5  by  delivering  to  him  a  copv  thereof  attested  by  the  officer  who  serves  is  Met.  471 

.  .  124  Mass  468. 

6  it  or  by  leaving  such  copy  for  him  as  hereinafter  provided.  i35Ma5a:4iL 

145  Mas3.  340.  171  Mass.  303. 

1  Section  30.    The  separate  summons  may  be  served  at  any  time  same  subject. 

2  after  the  attachment  has  been  made,  if  it  is  served  the  number  of  days  §!  i:  123! §*24. 

3  before  the  return  day  required  for  the  service  of  the  original  writ;   and  r.l.'iot.^so. 

4  a  certificate  of  the  service  of  the  summons  shall  be  endorsed  on  the 

5  original  writ. 

1  Section  31.     If  the  summons  is  not  served  personally  on  the  de-  service  by 

2  fendant,  the  original  or  a  copy,  as  the  case  may  be,  shall  be  left  at  his  iTO™f,'2a§i. 

3  last  and  usual  place  of  abode,  if  he  has  any  within  the  commonwealth  }7g775b,'"' 

4  known  to  the  officer.     If  he  has  none,  it  shall  be  left  with  his  tenant,  ^  i'  ^^ 

5  agent  or  attorney,  if  he  has  any  within  the  commonwealth  known  to  ffi^-A^n  ^05 

6  the  officer.     If  he  has  no  such  last  and  usual  place  of  abode  and  no  p.s.iei.'jsi.' 

7  tenant,  agent  or  attorney,  no  ser\ice  on  him  shall  be  required  except  as  e bush. 354. 
S  provided  in  the  three  following  sections. 

13  Grav.  270.  131  Mass.  359.  144  Mass.  10.  188  Mass.  80. 

15  Gray,  353.  140  Mass.  488.  147  Mass.  536.  230  Mass.  254. 

1  Section  32.     If  an  absent  defendant  whose  property  has  been  at-  service  of  sum- 

2  tached  is  sued  with  one  or  more  others  on  a  joint  contract,  and  he  has  defent°a"nf,  if 

3  no  such  last  and  usual  place  of  abode  and  no  tenant,  agent  or  attorney,  jo^'Jefendant 

4  within  the  commonwealth,  the  summons  for  him  shall  be  left  with  one  r's^;|o;|46 

5  of  the  co-defendants,  if  there  is  any  within  the  commonwealth.  g-  s.  123,  §  26. 

p.  S.  161,  §  32.  R.  L.  167,  §  32.  6  Gush.  354.  3  Gray,  SOS. 

1  Section  33.     If  the  tenant  in  a  real  action  is  out  of  the  common-  service  in  real 

2  wealth  and  has  no  last  and  usual  place  of  abode  here  known  to  the  aLe^'tfnant. 

3  demandant,  the  summons  or  an  attested  copy  shall,  in  addition  to  any  R.*a'96.^§'47.^' 

4  other  service  required,  be  left  for  him  with  the  tenant  or  occupant,  if  p- 1;  J|^'  |  |J; 

5  any,  of  the  land  demanded;   otherwise,  it  shall  be  left  in  a  conspicuous  f^  ^^^''^v^^^- 

6  place  on  the  land.  2  Cush.  32. 

1  Section  34.     If  the  defendant  is  out  of  the  commonwealth,  or  if  his  Purthemotice 

2  residence  is  not  known  to  the  officer,  and  no  personal  service  is  made  d°f™dTnt. 

3  on  him  or  on  his  agent  appointed  under  section  five  of  chapter  two  hun-  g;  |  jSaf  g^fg. 

4  dred  and  twenty-seven,  he  shall,  in  addition  to  the  service  herein  pre-  R.t.\"7,\34. 

5  scribed,  be  entitled  to  further  notice  of  the  action  as  provided  in  said  J^^^j^^t-lv^ '• 

6  chapter. 

9  Gray,  311.  12  Gray,  198.  105  Mass.  93. 

10  Gray,  164.  4  Allen,  94.  188  Mass.  80. 

1  Section  35.    When   a  writ,   bill,   petition   or  complaint  in   law   or  officer  to  state 

2  equity,  or  any  order  thereon,  is  served  by  an  officer  by  lea\-ing  the  o"  \L""nJ'  ""^ 


3  summons,  subpoena  or  copy  thereof  at  the  last  and  usual  place  of  abode  loSg" 

4  of  any  person,  the  officer  serving  the  same  shall  state  in  his  return  the 

5  place  as  definitely  as  is  practicable,  giving,  if  possible,  the  street  and 

6  number,  where  service  was  made. 


suiiiiiions,  etc. 


116. 


2406 


COMMENCEMEXT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ClL\P.   223. 


Service  on  cor- 
porations, etc., 
by  copv.  etc. 
1913,611,  §4. 
1915,  23. 


Section  36.  Process  against  a  county,  city,  town,  corporation,  body 
corporate,  joint  stock  association,  voluntary  association  described  in 
chapter  one  hundred  and  eighty-two,  parish  or  rehgious  society,  pro- 
prietors of  wharves,  general  fields  or  real  estate  lying  in  common,  who 
are  incorporated,  executor,  administrator,  guardian,  conservator,  re- 
ceiver, trustee  or  assignee  shall  be  served  by  copy  or  by  copy  and 
summons. 


Actions  against 
corporations, 
person  upon 
whom  service 
shall  be  made. 
1S33,  124. 
1S35.  Ho. 
E.  S.  90, 
§§  42.  43. 
C;.  S.  123, 
§§  29,  30. 
1S65,  136. 
P.  S.  161, 
§§  35,  36. 
R.  L.  167, 
§§  35,  36. 
1913,  309. 
1920,  591,  §  2. 
4  Allen,  357. 
173  Mass.  28. 
201  Mass.  557. 
224  Mass.  379. 


Section  37.  In  an  action  against  a  county,  city,  town,  parish  or  1 
religious  society,  or  against  the  proprietors  of  wharves,  general  fields  or  2 
real  estate  lying  in  common,  who  are  incorporated,  service  shall  be  made  3 
upon  the  treasurer  thereof,  or  if  no  treasurer  is  found,  upon  one  of  the  4 
county  commissioners,  the  city  clerk  or  one  of  the  aldermen,  the  town  5 
clerk  or  one  of  the  selectmen,  upon  one  of  the  assessors  or  standing  com-  6 
mittee  of  the  parish  or  religious  society,  or  upon  one  of  the  proprietors  7 
of  such  land  or  other  estate,  as  the  case  may  be.  If  there  are  no  such  8 
officers  as  are  mentioned  in  this  section,  service  shall  be  made  upon  one  9 
of  the  inhabitants  of  the  county,  city  or  town,  or  upon  one  of  the  mem-  10 
bers  of  the  corporation.  In  an  action  against  a  domestic  corporation  11 
other  than  those  mentioned  heretofore  in  this  section,  service  shall  be  12 
made  upon  the  clerk,  cashier,  secretary,  agent  or  other  officer  in  charge  13 
of  its  business,  or,  if  no  such  officer  is  found  within  the  county,  upon  14 
any  member  of  the  corporation.  15 


SerWce  on 
foreign  cor- 
porations. 

1906,  269. 

1907,  332. 
1913,  257. 
224  Mass.  379. 
228  Mass.  5S4. 


Section  38.  In  an  action  against  a  foreign  corporation,  except  an 
insurance  company,  which  has  a  usual  place  of  business  in  the  common- 
wealth, or,  ^^ith  or  ^^^thout  such  usual  place  of  business,  is  engaged  in  or 
soliciting  business  in  the  commonwealth,  permanently  or  temporarily, 
service  may  be  made  in  accordance  with  the  pro\'isions  of  the  preceding 
section  relative  to  ser\4ce  on  domestic  corporations  in  general,  instead 
of  upon  the  commissioner  of  corporations  and  taxation  under  section 
three  of  chapter  one  hundred  and  eighty-one. 


Service  on 
foreign  insur- 
ance company. 
1914.  626. 
132  Mass.  432. 
144  Mass.  81. 
191  Mass.  115. 


Section  39.  In  an  action  against  a  foreign  insurance  company 
transacting  business  in  this  commonwealth,  service  may  be  made  upon 
an  agent  of  the  company,  licensed  as  such  in  the  commonwealth,  who, 
having  authority  to  issue  policies  and  bind  risks  for  the  company,  has 
issued  the  policy  the  liability  on  which  is  sought  to  be  enforced,  or  an 
agent  who  lives  or  has  his  usual  place  of  business  in  the  county  and  has 
control  over  or  superintendence  of  subordinate  agents  of  the  company, 
instead  of  on  the  commissioner  of  insurance  under  clause  third  of  section 
one  hundred  and  fifty-one  of  chapter  one  hundred  and  seventy-five. 


Service  on 
certain  volun- 
tary associa- 
tions. 
1916,  184. 


Section  40.  In  an  action  against  a  voluntary  association  described 
in  chapter  one  hundred  and  eighty-two,  engaged  in  business  in  the  com- 
monwealth, service  may  be  made  upon  any  trustee  thereof. 


Service  of  sum- 
mons in  suits 
in  equity. 
R.  S.  90, 
§§  118.  119. 
G.  S.  123,  §  31. 
P.  S.  161,  §  37. 


Section  41.  A  writ  of  original  summons  or  subpoena  issued  in  a  suit 
in  equity  shall  be  served  the  same  number  of  days  before  the  return  day 
and  in  the  same  manner  as  an  original  writ  in  an  action  at  law  in  the 
same  court.  R-  l.  i67,  §  37. 


Chap.  223.]      commencement  of  actions,  service  of  process.  2407 


ATTACHMENT    OF   PROPERTY  —  GENER,.S.L   PROVISIONS. 

1  Section  42.     All  real  and  personal  property  liable  to  be  taken  on  Property  liaWe 

2  execution,  except  such  personal  property  as,  from  its  nature  or  situa-  iTs^i^r.^g"™!!' 
.3  tion,  has  been  considered  as  exempt  according  to  the  principles  of  the  nil;  77',  1 1'. 

4  common  law  as  adopted  and  practiced  in  the  commonwealth,  and  ex-  f^  ^-  ^°'  ^^  ^^' 

5  cept  as  provided  in  the  three  following  sections,  may  be  attached  upon  jps.  269.  §  2. 

6  the  oricrinal  writ  in  any  action  in  which  debt  or  damages  are  recoverable,  g".  s.'i23,§  32. 

7  and  may  be  held  as  security  to  satisfy  such  judgment  as  the  plaintii?  may  r.  l.  107,  §  as. 

8  recover;  but  no  attachment  of  land  shall  be  made  on  a  writ  returnable  i^Mass.^isi. 

9  before  a  district  court  unless  the  debt  or  damages  demanded  therein  s'^ptck^sG^s""' 
10  exceed  twenty  dollars.  lo  Pick.  144. 

2  Met.  510.  99  Mass.  172.  19S  Mass.  315. 

10  Cush.  269.  101  Mass.  10.5.  214  Mass.  466. 

8  Grav,  517.  106  Mass.  505.  225  Mass.  217. 

14  Gray.  220.  119  Mass.  241.  230  .Mass.  197. 

8  .Mien,  583.  190  Mass.  522.  233  Mass.  481. 

1  Section  43.    Railroad  cars  and  engines  and  street  railway  cars,  in  Attachment  of 

2  use  and  making  regular  passages  on  railroads  or  railways,  and  steam-  vessels. 

3  boats  so  in  use  upon  water  routes,  shall  not  be  attached  upon  mesne  Ka'i"i^,'§39. 

4  process  unless  the  officer  who  makes  the  attachment  has  first  demanded  fg^-  l^l'  |  ^^• 

5  of  the  owners  or  managers  thereof  other  property,  upon  which  to  make  |  ^ i     ^ 

6  it,  equal  in  value  to  the  ad  damnum  in  the  writ,  and  such  owners  or  iszMassisge! 

7  managers  have  refused  or  neglected  to  comply  with  said  demand;  except 
S  that  a  steamboat  so  in  use  may  be  attached,  if  the  attachment  is  made 
9  more  than  forty-eight  hours  before  its  fixed  time  of  departure.     Such 

10  attachment  shall  be  void  unless  the  officer  certifies  in  his  return  that  he 

11  has  made  such  demand  and  that  the  owners  or  managers  have  refused 

12  or  neglected  to  comply  therewith. 

1  Section  44.     No  ship  or  vessel  shall  be  attached  on  mesne  process  in  Declaration  to 

2  an  action  at  law  unless  a  declaration  is  inserted  in  the  writ  before  serv-  writTetc.! 

3  ice  thereof,  nor  unless  the  plaintiff  or  a  person  in  his  behalf  makes  minrof'ship'' 

4  affidavit  and  proves  to  the  satisfaction  of  a  justice  of  a  court  of  record,  i88Y'^j24 

5  a  master  in  chancery  or,  except  in  Suffolk  countv,  a  trial  justice  that  he  gs-  ku  §39. 

,  ,  i>  •  1  II  ^        .  «  .  R.  L.  167,  §  39. 

0  has  a  good  cause  ot  action  and  reasonable  expectation  or  recovering  an 

7  amount,  exclusive  of  all  costs,  equal  to  at  least  one  third  the  damages 

8  demanded  in  such  writ,  which  affida\it  and  the  certificate  of  the  magis- 

9  trate  that  he  is  satisfied  that  the  same  is  true  shall  be  annexed  to  the  writ. 

1  Section  45.     The  press,  type,  stands,  cases,  paper  and  other  per-  Property  of 

2  sonal  property  used  in  printing  and  publishing  newspapers  shall  not,  offi^ds!''""^ 

3  within  forty-eight  hours  previous  to  the  issue  of  any  edition  of  a  news-  ^  "{J;  j^f;  §  40. 

4  paper,  be  attached  upon  mesne  process  unless  the  officer  who  makes 

5  the  attachment  has,  at  least  twenty-four  hours  previously  thereto,  de- 

6  manded  of  the  owners  or  managers  thereof  other  property,  upon  which 

7  to  make  it,  equal  in  value  to  the  amount  of  the  ad  damnum  of  the  writ 

8  and  such  owners  or  managers  ha\'e  refused  or  neglected  to  comply  with 

9  such  demand.    Such  attachment  shall  be  void  unless  the  officer  certifies 

10  in  his  return  that  he  has  made  such  demand,  the  time  when  it  was  made 

11  and  that  it  has  not  been  complied  with.     Such  attachment,  made  after 

12  such  demand,  shall  take  effect  from  the  time  demand  was  made,  so  as  to 

13  take  priority  of  any  mortgage,  pledge,  conveyance  or  attachment  made 

14  subsequent  to  such  demand. 


2408 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [CH-U".   223. 


attachments  on  SECTION  46.  Succcssive  attachments  may  be  made  upon  the  same  1 
R.^s^'go^rM.'  "^"^it  by  one  or  more  officers  and  in  one  or  more  counties,  before,  but  not  2 
G.  s.  123,  §  33.  after,  service  of  the  summons.  p.  s.  lei,  §  4o.  r.  l.  i67,  §  4i.  3 


Successive 
attachments  on 
different  writs. 
1870,  310. 
P.  S.  161,  §41. 
R.  L.  167,  §  42. 
210  Mass.  90. 


Section  47.     Personal  property  which  has  been  attached  or  taken  on  1 

execution  by  a  constable  may  be  further  attached  or  taken  on  execution  2 

by  a  deputy  sheriff  or  other  competent  officer,  upon  any  writ  of  attach-  3 

ment  or  execution  which  such  constable  is  not  qualified  to  serve;    and  4 

thereupon  such  constable  shall  make  return  upon  and  deliver  his  writ  5 

or  execution,  with  the  possession  of  the  property,  to  such  deputy  sheriff  6 

or  other  officer,  who  shall  complete  the  service  thereof.    If  such  writ  of  7 

attachment  has  been  returned  into  court,  the  constable  shall  file  in  the  8 

case  a  certificate  of  the  fact  of  such  surrender  of  possession.  9 


Keeper. 

1878,  272, 

§§1.2. 

P.  S.  161,  §  42. 

R.  L.  167,  §  43. 

16  Pick.  144. 

122  Mass.  541. 

155  Mass.  259. 


Section  48.  The  officer,  if  necessary,  may  appoint  a  keeper  of  per- 
sonal property  which  has  been  attached  or  taken  on  execution,  and  in 
such  case  shall,  upon  the  ■written  request  of  the  defendant,  remove  such 
property  or  the  keeper  without  unreasonable  delay. 

194  Mass.  317.  208  Mass.  579. 


Property  to 
remain  on 
premises  in  cer- 
tain cases. 
1878,  272,  I  3. 
P.  S.  161.  §  43. 
R.  L.  167,  §  44. 
12  Gray,  401. 
101  Mass.  467. 
120  Mass.  228. 
136  Mass.  123. 
155  Mass.  259. 
208  Mass.  579. 


Attachment  of 
bulky  goods. 
R.  S.  90,  §§  33. 
34. 

G.  S.  123,  §  57. 
P.  S.  161,  §  69. 
R.  L.  167,  §  45. 
8  Pick.  402. 
2  Met.  36. 
4  Cush.  425. 
2  Allen,  185. 
4  Allen,  329. 
10  Allen,  414. 


Section  49.  Personal  property  which  has  been  attached  may,  sub- 
ject to  the  preceding  section,  be  kept  on  the  premises  where  it  is  found, 
unless  the  owner  or  occupant  of  the  premises  in  writing  requests  the 
officer  to  remove  his  keeper  therefrom;  and  if  the  defendant  in  writing 
requests  the  officer  to  allow  property  which  has  been  attached  on  the 
premises  of  the  defendant  to  remain  there  until  he  may  give  bond  to 
dissolve  the  attachment,  the  property  shall  not  be  removed  until  he  has 
had  reasonable  opportunity  to  give  such  bond. 

Section  50.  If  an  attachment  is  made  of  articles  of  personal  property 
which,  by  reason  of  their  bulk  or  for  other  cause,  cannot  be  immediately 
removed,  a  certified  copy  of  the  WTit,  without  the  declaration,  and  of 
the  return  of  the  attachment,  may.  within  three  days  after  the  attach- 
ment, be  deposited  in  the  office  of  the  clerk  of  the  town  where  it  is  made; 
and  such  attachment  shall  be  as  valid  and  ett'ectual  as  if  the  articles  had 
been  retained  in  the  possession  and  custody  of  the  officer. 


lis  Mass.  502. 
119  Mass.  241. 
140  Mass.  131. 
150  Mass.  158. 


157  Mass.  384. 
170  Mass.  142. 
177  Mass.  526. 


191  Mass.  494. 
208  Mass.  579. 
210  Mass.  90. 


Same  subject. 
R.  S.  90,  §  35. 
G.  S.  123,  §  53. 
P.  S.  161,  §  70. 
R.  L,  167,  §  46. 


Section  51.    The  clerk  of  the  town  shall  receive  and  file  all  such  1 

copies,  noting  thereon  the  time  when  received,  and  keep  them  safely  in  2 

Iiis  office,  and  also  enter  a  memorandmn  thereof,  in  the  order  in  which  3 

they  are  received,  in  the  books  kept  for  recording  mortgages  of  personal  4 

property.     Such  entry  shall  contain  the  names  of  the  parties  to  the  ac-  5 

tion  and  the  date  of  the  entry.     The  clerk's  fee  for  this  ser\'ice  shall  be  6 

twenty-fi\'e  cents,  wliich  shall  be  paid  by  the  officer  and  included  in  liis  7 

charge  for  the  ser^^ce  of  the  writ.  8 


Attachment  of 
proceeds  of 
property  sold. 
1822.  93,  §  5. 
R.S.  90,  §§71, 
72. 

G.  S.  123,  5  34. 
P.  S.  161.  §  44. 
R.  L.  167,  §  47. 


Section  52.  If  personal  property  has  been  sold  or  disposed  of  by 
consent  of  the  parties,  or  after  an  appraisal  as  hereinafter  provided,  the 
proceeds,  while  remaining  in  the  hands  of  the  officer,  shall  be  liable  to 
be  further  attached  by  him  as  the  property  of  the  original  defendant,  in 
the  manner  in  which  the  property  itself  might  ha^■e  been  attached;  and 
shall  be  held  and  disposed  of  in  the  same  maimer  as  if  the  attachment 


Chap.  223.]      commencement  of  actions,  service  of  process.  2409 

7  had  been  made  on  the  property  itself  before  the  sale  thereof.    The  fore- 

8  going  pro\ision  shall  not  prevent  the  officer  from  pajing  over  to  the 

9  defendant  the  sm-plus  of  the  proceeds  of   such  sale,  after  retaining 

10  enough  to  satisfy  all  the  attacliments  actually  existing  at  the  time  of 

11  such  payment. 

1  Section  5.3.     Property  which  has  been  replevied  from  an  officer  who  Further 

2  has  attached  it  shall  be  considered  as  remaining  in  his  custody  and  of  property 

3  control  so  as  to  be  liable  to  further  successive  attachments,  as  if  it  had  iffsl^gof  §  99. 

4  remained  in  his  possession. 

G.  S.  123,  §  35.  P.  S.  161,  §  45.  R.  L.  167,  §  4S. 

1  Section  54.     If  there  is  judgment  for  a  return  of  the  property  so  piaintiffin 

2  replevied,  the  plaintiff  in  reple\in  and  his  sureties  shall  be  liable  for  the  fo?™iSe.'^  ^ 

3  whole  of  the  property  or  the  value  thereof,  although  the  attachment  for  §;  |;  ^^s.^/se! 

4  which  it  is  finally  held  was  made  after  the  property  was  replevied.  ^- 1;  ^^^j  Yig 

1  Section  55.     If  an  officer  dies  or  is  removed  from  office  while  an  Attachment 

2  attachment  which  he  has  made  remains  in  force,  the  attached  property,  etc"o1''first 

3  whether  reple\-ied  or  remaining  in  possession  of  the  officer  or  of  his  om^er."'® 

4  executor  or  administrator,  may  be  further  attached  by  any  other  officer  g- 1- 123^^37" 

5  so  as  to  bind  it  or  its  proceeds,  as  if  the  later  attachment  had  been  g-Sisi-M^- 

^  1      1  I        f  '  ^       re  R.  L.  167,  §  50. 

6  made  by  the  farst  mentioned  othcer. 

1  Section  56.     The  officer  who  makes  such  later  attachment  shall  not  Proceedings  in 

1  •    1  1  1      11  1  c  1  such  case. 

2  take  the  property  itself,  but  he  shall  make  a  return  of  an  attachment  r  s.so. 

3  in  the  common  form,  stating  by  whom   the  property  was  previously  g.  s.  123.  §38. 

4  attached,  and,  if  it  has  not  been  reple\-ied,  shall  leave  a  certified  copy  r.l.^ot.  §51. 

5  of  the  writ,  without  the  declaration,  and  of  the  return  of  that  attach- 

6  ment  with  the  former  officer,  if  li\-ing,  or,  if  he  is  dead,  with  his  execu- 

7  tor  or  administrator  or  whoeAcr  then  has  possession  of  the  property.    If 

8  the  property  has  been  ^eple^^ed,  and  the  officer  who  made  the  original 

9  attacliment  is  dead,  such  copy  shall  be  left  with  his  executor  or  ad- 

10  ministrator  or  with  the  plaintiff  in  reple\in.     The  attacluuent  shall  be 

11  considered  as  made  when  such  copy  is  delivered  in  any  of  the  modes 

12  provided  in  this  section. 

1  Section  57.     Property  which  has  been  replevied  from  an  attaching  Modcofattach- 

2  officer  shall  not  be  further  attached  as  the  property  of  the  original  de-  property. 

3  fendant  in  any  manner  other  than  is  provided  in  the  four  preceding  g:!:  123,  §  39! 

4  sections  and  in  section  forty-seven,  so  long  as  it  is  held  by  the  plaintift"  R.L.f67,V52. 

5  in  replevin  or  by  any  person  holding  under  him,  unless  the  original 

6  defendant  has  acquired  a  new  title  thereto. 

1  Section  58.     Property  which  has  been  attached  by  an  officer,  whether  Attachment  to 

2  in  his  custody  at  his  death  or  taken  from  him  by  reple\in  or  otherwise,  deatHf at-^"^ 

3  and  also  all  claims  for  damages  to  property  so  taken  from  him,  shall  R.''|;ifo.°f9"" 

4  remain  subject  to  the  attachment  as  if  the  officer  had  lived,  and  shall  p;  |;  J,ff;  1 50; 

5  not  be  considered  as  assets  in  the  hands  of  his  e.xecutor  or  administrator.  R-  l.  ig7,  §  53. 

1  Section  59.     Property  which  has  been  attached  shall  be  held  for  Attachment 

2  thirty  days  after  final  judgment  for  the  plaintiff  or  claimant  so  that  it  thirty  riVs"^ 

3  may  be  taken  on  execution,  unless  the  attachment  is  sooner  dissolved;  a"  u'i!'§T'' 

4  but  if  attached  in  Nantucket  county  and  judgment  is  rendered  in  an-  {yg^^^s.^'j  u"' 


224  Mass.  501. 


2410  COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ChAP.   223. 

1S06, 107.    _     other  county,  or  if  judgment  is  rendered  in  Nantucket  county  and  it  was  5 

a',  s.  i2i5,  §  42.  attached  in  another  county,  it  shall  be  held  in  like  manner,  subject  to  6 

R.  L.\*G7.\  55.  the  same  condition,  for  sixty  days  after  final  judgment.       ii  Mass.  204.  7 

106  Mass.  505.  118  Mass.  514.  19S  Mass.  37.  233  Mass.  4S1. 

foTthiVlvdlys       Section  60.     Property  whicji  has  been  attached  in  suits  in  equity  1 

.ifter  right  of     shall  bc  held  for  tliirty  days  after  the  right  of  appeal  from  a  final  decree  2 

'='',p'.''''5'i„  5 ,     expires.     If  an  appeal  is  claimed  from  a  final  decree  and  subsequently  3 

p.  s.'ioi.'§53.   waived  or  dismissed,  property  attached  in  the  suit  shall  be  held  until  4 

1907!  546!  i  2.  ■  thirty  days  after  such  waiver  or  dismissal,  and  the  time  for  doing  any  5 

act  or  thing  ordered  to  be  done  within  a  specified  period  from  the  entry  6 

of  the  final  decree  shall  be  computed  from  the  date  of  such  waiver  or  7 

dismissal.  8 

defined"'^""'^°*      SECTION  61.     "Final  judgment",  as  used  in  sections  fifty-nine,  one  1 

G  i'  i^sS^Ii    hundred  and  fifteen,  one  hundred  and  twenty,  one  hundred  and  twenty-  2 

R  L  \o7 1^57   ^^'^  **^  °"^  hundred  and  twenty-seven,  inclusive,  shall  mean  that  wliich  3 

167  Mass!  222.'  is  rendered  in  the  original  action,  whether  upon  appeal  or  otherwise,  and  4 

174  Mass.  349.             ,             ,                            !_                 j          J                                V      i^                                 -i.      J!            •  r 

not  such  as  may  be  rendered  upon  a  writ  of  error  or  writ  of  re\iew.  5 

ATTACHMENT   OF   REAL   ESTATE   AND    LEASEHOLDS. 

itnd 'Jild'^"*  °^       Section  62.     In  attaching  land,  or  a  right  or  interest  therein,  the  1 

'fasehoids         officer  need  not  enter  upon  the  land  or  be  within  view  of  it.    In  attach-  2 

1847',  2(i'7,  §  3.    ing  leasehold  estates,  the  officer  shall  state  in  his  return  in  general  terms  3 

p.' 8.161,' §61.'  the  leasehold  property  attached.  4 

R.  L.  167,  §  58.  13  Mass.  128.  2  Met.  510.  13  Met.  200. 

10  Mass.  421.  11  Pick.  341.  10  Met.  138.  142  Mass.  206. 

?f''writ.' °^  ^''^      Section  63.     No  attachment  on  mesne  process  of  land  or  of  any  1 

1839. 89.^^*'    leasehold  estate  shall  be  valid  against  a  subsequent  attaching  creditor,  2 

G^snl'lii    "^^  against  a  subsequent  pm-chaser  in  good  faith  and  for  value,  unless  3 

'I™'  264, 1 1.    the  officer  deposits  a  certified  copy  of  the  original  writ,  without  the  4 

p.  s.'i6i,'§62.  declaration,  and  so  much  of  his  return  thereon  as  relates  to  the  attach-  5 

R.  L.  167!  §  69.  ment  of  the  estate,  in  the  registrv  of  deeds  for  the  countv  or  district  6 

1  Met.  212. 
10  Met.  138. 


where  the  land  lies.  n  Met.  244.  129  Mass.  27.  7 


fgjg^  i|g°®°^''-      Section  64.     The  officer  who  makes  such  attachment  shall  deposit  1 

1847!  267  §  3     ^"■"^'h  "^'opy  '"  th*^  registry  of  deeds.             g.  s.  123,  §  52.           1870, 264,  §  1.  2 

1873,  297,  §  1.  p.  S.  161,  §  63.  R.  L.  167,  §  60.  129  Mass.  27. 

^giste"^               Section  65.    The  register  of  deeds  shall  note  on  every  such  copy  1 

1856'  209^  ^°'    ^'^^  ^^y'  hoi""  ^'I'i  minute  of  its  receipt,  and  shall  file  it  in  his  office.  2 

G._s.'i23,'§53.  He  shall  also  enter  in  a  book  which  he  shall  keep  for  that  purpose  the  3 

1873!  297!  §  2!    name  of  the  plaintiff  and  the  name  of  each  defendant  whose  land  is  4 

R.  L.^OT./ui'.  attached,  the  time  when  the  attacliment  was  made  and  the  time  when  5 

iis^Massl'flu..  the  copy  was  deposited.    His  fees  may  be  taxed  as  part  of  the  plaintiff's  6 

130  Mass.  16.     costs.    If  a  dissolutiou  of  an  attachment  which  has  been  so  entered  in  a  7 

registry  of  deeds  appears  of  record  in  the  court  in  which  the  action  is  8 

pending,  the  clerk  of  such  court  shall  forward  to  such  register  a  certificate  9 

of  such  dissolution,  stating  how  such  dissolution  was  made,  and  the  reg-  10 

ister  shall  file  the  certificate  with  the  copy  of  the  writ  and  shall  make  11 

an  entry  tlicrcof  in  his  docket  of  attaclmients.  12 


Chap.  223.]      comjiencement  of  actions,  service  of  process.  2411 

1  Section  66.     If  the  copy  of  the  writ  is  deposited,  as  aforesaid,  within  whenattach- 

2  three  days  after  tlie  day  when  the  attacliment  was  made,  the  attach-  rfSt.''''^''^ 

.3  ment  shall  take  effect  from  the  time  it  was  made,  otherwise,  from  the  g- 1  jos^^fi 

4  time  when  the  copy  is  so  deposited;  but  attachments  of  land,  and  of  p^ s° /^j  =  es 

5  leasehold  estates  which  have  an  original  term  of  more  than  seven  years,  R  l.  iot'.  §  62. 

6  shall  not  be  valid  against  purchasers  in  good  faith  and  for  value,  other  lo  Aiien,  494. 

7  than  parties  defendant,  except  from  the  time  when  the  copy  is  deposited  III  lillt  Ih. 

8  as  aforesaid,  or,  in  cases  where  the  owner  of  the  land  sought  to  be  at- 

9  taclied  is  wrongly  named  in  the  writ,  and  the  writ  is  afterward  season- 

10  ably  amended  in  that  respect,  then  except  from  the  time  when  a  cor- 

11  respondingly  amended  copy  is  deposited  as  aforesaid. 

1  Section  67.     If  an  attachment  on  mesne  process  is  made  of  land,  or  Attachment  of 

2  of  a  right  or  interest  therein,  which  has  been  fraudulently  conveyed  by  ientiy'co"n-"" 

3  the  debtor  to  a  third  person,  or  which  has  been  purcliased  by  the  debtor,  Il44!'io7?§  2. 

4  or  the  purchase  money  of  which  has  been  directly  or  indirectly  paid  by  cflf'f^liss 

5  him,  and  the  title  thereto  has  been  retained  in  the  vendor  or  conveyed  ^  l\^v7\63' 

6  to  another  person,  with  the  intent  and  for  the  purpose  of  fraudulently  wisiasvi 

7  securing  the  land  from  attachment  by  a  creditor  of  such  debtor,  or  with  1919,  s. 

8  the  intent  and  for  the  purpose  of  delaying,  defeating  or  defrauding  6"Gray!52o. 

9  creditors,  or  which  is  held  on  a  trust  for  the  debtor,  ex-press  or  implied,  9  A^iienrioL' 

10  whereby  he  is  entitled  to  a  present  conveyance,  it  shall  not  be  valid  ??s^Mass*5i7 

1 1  against  a  subsequent  attaching  creditor,  or  against  a  subsequent  pur-  jgS  Mass.  427. 

12  chaser  in  good  faith  and  for  value,  unless  the  officer  in  addition  to  the  147  Mass.' 23. ' 

13  return  required  by  sections  sixty-two  and  sixty-three  also  retiu-ns  a  brief  225  Mass!  217; 

14  description  of  the  land  which  has  been  attached,  by  its  locality,  situation,  233  Mass!  los'. 
1.5  boundaries  or  otherwise  as  known  to  him,  and  the  names  of  the  persons 

16  in  whom  the  record  or  legal  title  stands. 

1  Section  68.     The  register  in  such  case,  in  addition  to  the  names  of  Entry  of  name 

r»      1  •  •I'll*  ■        1  •  1     1     •       ^^  holder  of 

2  the  parties  to  the  writ  which  he  is  required  to  enter  as  provided  in  legal  title,  etc. 

3  section  si.xty-five,  shall  also  enter  in  his  docket  of  attachments  the  g._s.'i23,'§56. 

4  names  of  the  persons  in  whom  the  record  or  legal  title  stands,  as  re-  i873!297,'§  1! 

5  turned  by  the  officer,  in  the  same  manner  as  if  the  estate  of  such  persons  r.l,  uiV.^m. 

6  were  attached  as  defendants  in  the  writ. 

118  Mass.  517.  189  Mass.  390.  225  Mass.  217. 

1  Section  69.     Registers  of  deeds  shall  perform  the  same  duties  rela-  Duties  of 

2  tive  to  the  filing  and  entering  of  copies  of  writs  and  other  papers  in  papersTn^^ 

3  actions  commenced  in  the  courts  of  the  United  States  which  affect  the  unltSi  states 

4  title  to  land  by  attachment  or  otherwise  as  are  required  relati\e  to  the  1173^097,  §  3. 

5  filing  and  entering  of  such  papers  in  such  actions  commenced  in  the  p-  s-  wi^  5  68. 

6  courts  of  the  commonwealth. 

1  Section  70.     An  attachment  of  land  which  is  subject  to  a  mortgage  Attachment  of 

2  or  other  encumbrance  shall,  if  the  mortgage  is  redeemefl  or  the  encum-  fand"'  °" 

3  brance  is  removed  before  the  levy  of  the  execution,  hold  the  land  dis-  h.'s.'9o.'§  32.' 

4  charged  of  the  mortgage  or  encumbrance,  and  execution  may  be  levied  p ;  |;  i|f ;  1 51 ; 

5  in  the  same  manner  and  with  the  same  eft'ect  as  if  it  had  never  existed,     k.  l.  107,  §  54. 

106  Mass.  505. 

attachment  of  shares  of  stock. 

1  Section  71.    Shares  of  stock  shall  not  be  attached  in  an  action  at  fi,a?e'L''of8'toc°k 

2  law.  1910,  171,  §  13.  222  Mass.  27.  234  Mass.  279. 


2412 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ChAP.   223. 


No  attachment 
or  levy  of  goods 
for  which  a 
negotiable 
document  of 
title  is  out- 
standing, 

1907.  582,  §  26. 

1908.  237,  §  39. 
1910.214.  §24. 
211  Mass.  146. 
214  Mass.  466. 
220  Mass.  285. 
234  Mass.  477. 


ATTACHMENT  OF  PROPERTY  IN  POSSESSION   OF  B.ULEE. 

Section  72.  If  goods  are  delivered  to  a  carrier  or  other  bailee  by 
the  owner  or  by  a  person  whose  act  in  convej'ing  title  to  a  purchaser  in 
good  faith  for  value  would  bind  the  owner  and  a  negotiable  document 
of  title  is  issued  for  them,  they  cannot  thereafter,  while  in  the  possession 
of  such  bailee,  be  attached  by  trustee  process  or  otherwise,  or  be  levied 
upon,  unless  the  document  be  first  surrendered  to  the  bailee  or  its  negotia- 
tion enjoined.  The  bailee  shall  not  be  compelled  to  deliver  up  the  actual 
possession  of  the  goods  until  the  document  is  surrendered  to  him  or  im- 
pounded by  the  court. 


Attachment  of 
property  in 
possession  of 
carrier  or 
warehouseman. 
1907,  582.  §  43. 
1910.214,  §33. 
211  Mass.  146. 
214  Mass.  466. 
234  Mass.  477. 


Section  73.  Except  as  provided  in  the  preceding  section,  property 
in  the  possession  of  a  carrier  or  warehouseman  may  be  attached  by 
trustee  process  or  otherwise;  but  if  the  bill  of  lading  or  receipt,  though 
non-negotiable,  has  been  transferred,  and  the  carrier  or  warehouseman 
notified  of  the  transfer,  the  title  of  the  transferee  shall  not  be  defeated 
by  an  attachment  in  a  suit  against  a  prior  owner  of  the  goods. 


Attachment  of 
mort^^aged 
property. 
1829,  124.  §  2. 
R.  S.  90.  §  78. 
1844,  148,  §  1. 
G.  S.  123,  §  62. 
P.  S.  161.  §74. 
R.  L.  167,  §  69. 
3  Met.  268. 
11  Met.  226. 


ATTACHMENT   OF   ENCUMBERED    PERSONALTY. 

Section  74.  Personal  property  of  a  debtor  which  is  subject  to  a 
mortgage,  pledge  or  lien,  and  of  which  he  has  the  right  of  redemption, 
may  be  attached  and  held  as  if  it  were  unencumbered,  if  the  attach- 
ing creditor  pays  or  tenders  to  the  mortgagee,  pledgee  or  holder  of  the 
property  the  amount  for  which  it  is  so  liable  within  ten  days  after  de- 
mand as  hereinafter  provided.  is  Met.  204. 

1  Gush.  278.  6  .Mien.  80.  295.  137  Mass.  132.  1,88  Mass.  70. 

3  Gush.  306.  106  Mass,  114.  142  Mass.  15,  203  Mass.  480. 

10  Gray,  334.  110  Mass.  28,  167.  365.  143  Mass.  123.  205  M.^s.  576. 

14  Gray,  566.  119  Mass.  535.  145  Mass.  277.  217  Mass,  555. 

1  AUen",  29.  122  Mass.  303.  159  Mass.  203.  232  Mass.  428. 


Mortgagee  to 
state  account. 
1829.  124,  §  3. 
R.  S.  90.  §  79. 
1844,  148,  §  1. 
G.  S.  123,  §  63. 
P.  S.  161.  §75. 
R.  L.  167.  §  70, 
23  Pick,  321. 

I  Met,  172,  294, 
325,  515. 

3  Met.  144, 268. 
10  Met.  7. 

II  Met.  226. 


Section  75.  The  mortgagee,  pledgee  or  holder  shall,  when  demand- 
ing payment  of  the  money  due  to  him,  state  in  -RTiting  a  just  and  true 
account  of  the  debt  or  demand  for  which  the  property  is  liable  to  him 
and  deliver  it  to  the  attaching  creditor  or  officer.  If  the  same  is  not 
paid  or  tendered  to  him  within  ten  days  thereafter,  the  attachment  shall 
be  dissolved,  the  property  shall  be  restored  to  him  and  the  attaching 
creditor  shall  be  liable  to  him  for  any  damages  he  has  sustained  by  the 
attachment. 


12  Met.  308,  333. 


3  Gush.  306,  575. 
11  Cush.  348. 
1  Gray,  254. 

3  Gray,  490. 

4  Gray.  550. 
8  Gray,  218. 
10  Gray,  37. 

14  Gray.  123,  566. 
1  Allen,  29. 
3  Allen,  241.  427. 
6Allen.  80,  293. 
14  Allen,  222. 


98  Mass.  510. 
100  Mass,  323, 
103  Mass,  335. 

105  Mass.  49. 

106  Mass,  114. 

110  Mass,  28,  365, 

111  Mass,  273, 
125  Mass.  164.  582. 
136  Mass.  515. 
140  Mass.  154, 

145  Mass.  270,  571. 


13  Met.  204. 

151  Mass.  497. 
157  Mass,  228, 
166  Mass,  1, 
170  Mass,  517,  523. 
184  Mass.  547. 
188  Mass.  146. 
203  Mass,  480. 
205  Mass.  576. 

216  Mass.  197. 

217  Mass,  555. 
232  Mass.  42S, 


Penalty  for  ex- 
cessive demand. 


Section  76.  If  he  demands  and  receives  more  than  the  amount  due 
if^s'9o*§8o'  t°  1"™'  he  shall  be  liable  to  the  attaching  creditor  for  money  had  and 
G-|.i23.l64.  received  for  the  excess,  with  interest  thereon  at  the  rate  of  twelve  per 
R.  L.  167,1 71.  cent  a  year.  n  Cush.  348. 


Section  77.     If  property  which  has  been  attached  and  redeemed  by     1 


Debt  to  be 

repaid  out  of  _        _  ^ 

^lus'"^ °'        ^^^  attaching  creditor,  as  aforesaid,  is  sold  on  mesne  process  or  on  execu-    2 


Chap.  223.]      commencement  of  actions,  service  of  process.  2413 

3  tion,  the  proceeds  thereof,  after  deducting  the  charges  of  the  sale,  shall  Glfas^^es 

4  be  first  applied  to  repay  to  the  attaching  creditor  the  amount  so  paid  p.'s,igi,'§77.' 

5  by  him,  with  interest.  .   .     ,     -. 

1  Section  78.     If  the  attaching  creditor,  after  having  redeemed  the  Defendant  to 

2  property,  does  not  recover  judgment,  he  may  nevertheless  hold   the  phUnVisfor"^ 

3  property  until  the  debtor  repays  to  him  the  amount  which  he  paid  for  mortg?g|.°°  °' 

4  the  redemption,  or  as  much  thereof  as  the  debtor  would  have  been  GgiSs^^ee 

5  obliged  to  pay  to  the  mortgagee,  pledgee  or  holder  of  the  property,  if  p-  s.  i«.' §  ts.' 

6  it  had  not   been  attached,  with  interest  from  the  time  when  it  was 

7  demanded  of  the  debtor. 

1  Section  79.     Personal  property  subject  to  a  mortgage  and  in  the  Attachment  of 

2  possession  of  the  mortgagor  may  be  attached  as  if  unencumbered ;   and  ^naUyTn'*  ^"' 

3  the  mortgagee  or  his  assigns  may  be  summoned  in  the  same  action  in  ^e'Sfon"''"'" 

4  which  the  property  is  attached  as  the  trustee  of  the  mortgagor  or  his  }?*^- }iS' I  ?:. 

5  assigns  to  answer  such  questions  as  may  be  put  to  him  or  them  by  the  Sf-'^.^'ll"- 

6  court  or  by  its  order  relative  to  the  consideration  of  the  mortgage  and  e  bush.  ibs. 

7  the  amount  due  thereon.  9  Gray,  45.  1  Alien,  ssi. 

8  Allen,  273.  114  Mass.  60.  136  Mass.  193.  170  Mass.  469. 

13  Allen.  66.  119  Mass.  535.  140  Mass.  208.  175  Mass.  144. 

99  Mass.  172.  121  Mass.  96, 204.  144  Mass.  385.  188  Mass.  70. 

102  Mass.  414.  133  Mass.  78.  148  Mass.  566.  225  Mass.  451. 

107  Mass.  122.  134  Mass.  347.  154  Mass.  34.  232  Mass.  424,  428. 

1  Section  80.     If  upon  such  examination,  or  upon  the  verdict  of  a  Determination 

2  jury  as  provided  in  the  following  section,  it  appears  that  the  mortgage  is4Ti48,'§'3'^' 

3  is  valid,  the  court,  having  first  ascertained  the  amount  justly  due  upon  p|i\u'||o' 

4  it,  may  direct  the  attaching  creditor  to  pay  the  same  to  the  mortgagee  p,g\/"'  f^'o^- 

5  or  his  assigns  within  such  time  as  it  orders;  and  if  he  does  not  pay  or  i33Mass!78. ' 

6  tender  the  amount  within  the  time  prescribed,  the  attachment  shall  be  154  Mass!  34. ' 

7  void  and  the  property  shall  be  restored.  i70  Mass.  469. 


1       Section  81.     If  the  attaching  creditor  denies  the  validity   of  the  Determination 

of  vaHdity 
mortgage. 


2  mortgage  and  moves  that  its  validity  be  tried  by  jury,  the  court  shall  of™''di<yof 


3  order  such  trial  upon  an  issue  which  shall  be  framed  under  its  direction.  cf^s'/IMeo 

4  If,  upon  such  examination  or  verdict,  the  mortgage  is  adjudged  valid,  ^LVjii^yg 

5  the  mortgagee  op  his  assigns  shall  recover  his  costs.  i75  Mass'.  144.' 

1  Section  82.    When  the  creditor  has  paid  to  the  mortgagee  or  his  creditor  to 

2  assigns  the  amount  ordered  by  the  court,  he  may  retain  out  of  the  pro-  pl*id"by  hfm?' 

3  ceeds  of  the  property  attached,  when  sold,  the  amount  so  paid  with  f^^^^  j^g  ^  5 

4  interest,  and  the  balance  shall  be  applied  to  the  payment  of  his  debt.        p|iuMs2' 

R.  L.  167,  §  77. 

1  Section  83.     If  the  attaching  creditor,  after  having  paid  the  amount  Creditor  not  re- 

2  ordered  by  the  court,  does  not  ^eco^'er  judgment,  he  may  nevertheless  ment  to  hold 

3  hold  the  property  until  the  debtor  has  repaid  with  interest  the  amount  repaw.  *^ ""  ' 

4  so  paid.  I844,  us,  §  6.  G.  S.  123,  §  71.  p.  S.  I6I,  §  SS.  R.  L.  167,  §  78. 

supplementary  process. 

1  Section  84.     If  the  service  of  a  writ,  process  or  order  is  defective  or  Further  service 

2  insufficient,  the  court  or  tribunal  to  which  it  is  returnable  may,  upon  service!^ 

3  motion  of  the  plaintiff  or  petitioner,  issue  further  writs,  processes  and  i*!s.'i'i?/.'§  S4. 

4  orders,  which  shall  be  served  in  such  manner  as  may  be  therein  directed;  54o\/,[|4! L™.' 

5  and  upon  due  service  thereof,  the  court  or  tribunal  shall  thereby  acquire  215  Mass.  341. 


2414 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [Ch.U>.   223. 


the  same  jurisdiction  of  the  subject  and  of  the  parties  as  it  would  have  6 

obtained  if  such  service  had  been  made  in  pursuance  of  the  original  writ,  7 

process  or  order.    The  action,  suit  or  proceeding  shall  be  continued  from  8 

time  to  time  until  such  serNice  is  made.  9 


Attachments 
and  arrests 
during  pen- 
dency of  suit. 

1876,  167, 
§§1,4. 

1877.  18. 
1879.  53. 

P.  S.  161,  §§85. 
88. 

R.  L.  167,  §  80. 
1907.  453. 
193  Mass.  84. 
209  Mass.  370. 
212  Mass.  486. 
215  M.ass.  341. 
217  Mass.  213. 


Section  85.     At  any  time  during  tlie  pendency  of  an  action,  suit,  1 

libel,  petition  or  other  proceeding  at  law  or  in  equity,  upon  the  com-  2 

mencement  of  which  an  arrest  or  attachment  is  authorized  by  law,  the  3 

court  for  cause  may,  on  motion  ex  parte,  order  such  arrest  of  the  de-  4 

fendant  or  such  attachment  of  his  property  by  trustee  process  or  other-  5 

wise  to  secure  tlie  judgment  or  decree  which  the  plaintiff  may  obtain  in  6 

said  cause;    but  no  arrest  of  the  defendant  shall  be  authorized  unless  7 

the  same  facts  as  are  required  to  be  proved  to  authorize  an  arrest  on  8 

mesne  process  are  proved  to  the  satisfaction  of  the  court  by  affidavit  as  9 

provided  in  section  two  of  chapter  two  hundred  and  twenty-four.    Ex-  10 

cept  in  Suffolk  county,  a  clerk  of  such  court  may,  under  the  same  con-  11 

ditions,  order  such  attachment  of  the  property  of  the  defendant.    Such  12 

arrest  or  attachment  shall  be  subject  to  all  the  pro\asions  of  law  relative  13 

to  arrest  and  attachment  upon  mesne  process,  so  far  as  applicable.  14 


formt^^c.  Section  86.     A  precept  for  such  arrest  or  attachment  shall  be  in  the 

in.'s^'^'  same  form,  so  far  as  practicable,  as  an  original  writ  of  capias  and  at- 
p  s.  161,  |§86,  tachment;  but  the  supreme  judicial  court  may  by  general  rules  establish 
R.  L.  107,  §  81.  forms  therefor.     Such  precept  may  be  served  by  an  officer  authorized 

to  serve  the  original  process  in  the  cause,  and  shall  be  returnable  as  may 

be  ordered  bv  the  court  which  issues  it. 


215  Mass.  341. 


Sale  of  prop- 
erty attached. 
1822,93,  §  1. 
R.  S.  90,  §  57. 
G.  S.  123,  §  72. 
P.  S.  161,  §  89. 
R.  L.  107,  §  82. 
17  Pick.  429. 
is  Pick.  407. 
1  Met.  34. 
4  Met.  137, 504. 
6  Met.  94. 
10  Met.  231. 
4  Gush.  393. 
125  Mass.  278. 


S.\LE    OF   PERSON.^L   PROPERTY   ATTACHED. 

Section  87.     Personal  property  which  has  been  attached  on  one  or  1 

more  writs  may,  if  the  debtor  and  all  the  attaching  creditors  consent  2 

in  writing,  subject  to  sections  seventy-four  to  eighty-three,  inclusive,  be  3 

sold  by  the  attaching  officer  in  the  manner  provided  by  law  for  selling  4 

like  property  on  execution;  and  the  proceeds  of  the  sale,  after  deducting  5 

the  necessary  charges,  shall  be  held  by  the  officer  subject  to  the  attach-  6 

ments  and  be  disposed  of  as  the  property  would  have  been  held  and  7 

disposed  of  had  it  remained  unsold.  8 


154  Mass.  34. 


187  Mass.  421. 


Appraisal  and 
sale  of  perish- 
able property. 
1822,  93,  §  2. 
R.  S.  90.  §  58. 
G.  S.  123,  §  73. 
P.  S.  161,  §  90. 
R.  L.  107,  §  83. 
IS  Pick.  407. 
3  Allen,  207. 
97  M:iss.  07. 
101  Mass.  2.59. 
114  Mass.  60. 
154  Mass.  34. 


Section  88.  If  an  attachment  is  made  of  animals  or  of  goods  which 
are  liable  to  perish,  waste  or  greatly  decrease  in  value  by  keeping,  or 
which  cannot  be  kept  without  great  and  disproportionate  expense,  and 
the  parties  do  not  consent  to  a  sale  thereof  as  before  provided,  the 
property  so  attached  shall,  subject  to  sections  seventy-four  to  eighty- 
three,  inclusive,  upon  the  application  of  either  of  the  parties  interested 
to  the  attaching  officer,  be  examined,  appraised  and  sold  or  otherwise 
disposed  of  in  the  manner  following. 


Appraisal  and 
sale  of  perish- 
able property: 
proceedings. 
1822.  93,  §  2. 
R.  S.  90,  §  59. 
1851,  1,  §  3; 
58;  257. 
G.  S.  123,  §  74. 
P.  S.  161,5  91. 
R.  L.  107,  §  84. 


Section  89.  Upon  such  application,  the  attaching  officer  shall  give 
notice  to  all  the  other  parties  or  their  attorneys,  prepare  a  schedule  of 
the  goods  and  cause  three  disinterested  persons  acquainted  with  the 
nature  and  \aluc  of  such  goods  to  be  appointed  and  sworn  before  a 
magistrate  or  tiie  attaching  officer  to  the  faithful  performance  of  their 
duty  as  appraisers.  6  AUcn,  505.  130  Mass.  247. 


Chap.  223.]      commencement  of  actions,  service  of  process.  2415 

1  Section  90.     If  the  defendant  is  not  within  the  commonwealth  and  ^"''de'endant. 

2  has  no  attorney  therein,  the  notice  in  writing  shall  be  left  at  his  last  and  Q^g'JIfsyg 

3  usual  place  of  abode,  if  any,  in  the  commonwealth;  otherwise,  it  shall  be  p.  s.  ifiM^oa. 

4  delivered  to,  or  left  at  the  dwelling  house  or  place  of  business  of,  the  per- 

5  son  who  had  possession  of  the  property  at  the  time  of  the  attachment. 

1  Section  91.     One  appraiser  shall  be  appointed  by  the  creditor  or  Appraisers, 

2  creditors  in  the  several  actions,  one  by  the  debtor  or  debtors,  and  one  r°  s.''90.°§"go.  ' 

3  by  the  officer;    and  if  the  debtors  or  creditors,  respectively,  neglect  to  g!^s.' ill;  §  76, 

4  appoint  such  appraiser,  or  do  not  agree  in  the  nomination,  the  officer  R.L.fo7,\ 

5  shall  appoint  one  in  their  behalf. 


93. 
S6. 


1  Section  92.    The  appraisers   shall   examine  the  attached   property  saie  after 

2  and,  if  in  their  opinion  it,  or  a  part  thereof,  is  liable  to  perish  or  waste  r^''J.%o*.'§  ei. 

3  or  to  greatly  decrease  in  value  by  keeping  or  cannot  be  kept  without  p.l.il^.'lJJ; 

4  great  and  disproportionate  expense,  they  shall  appraise  the  value  thereof  R^  pi/^  ^407*''' 

5  and  the  property  shall  thereupon  be  sold  by  the  officer  and  the  pro-  *  ^ush.  393.^^ 
G  ceeds  held  and  disposed  of  as  provided  in  section  eighty-seven,  unless 

7  the  goods  are  taken  by  the  debtor  as  provided  in  the  following  section. 

1  Section  93.     The  property  so  appraised  shall,  if  he  requires  it,  be  Delivered  to 

2  delivered  to  the  debtor  upon  his  depositing  with  the  attaching  officer  1I2T  93?  §  3. 

3  the  appraised  value  thereof  in  money,  or  upon  giving  bond  to  the  officer  §;  |  ^"sf §*'7s. 

4  in  a  sufficient  sum,  with  two  sufficient  sureties,  conditioned  to  pay  to  r.l/iw.Vss. 

5  him  the  appraised  value  of  the  property  or  to  satisfy  all  such  judgments  is'o  Mass.  247. 

6  as  may  be  recovered  in  the  actions  in  which  the  property  was  attached, 

7  if  demanded  within  the  time  during  which  the  property  would  have 

8  been  held  by  the  respective  attachments  or  within  thirty  days  after  the 

9  time  when  the  creditors,   respectively,   would  have  been   entitled   to 

10  demand  pajTuent  out  of  the  proceeds  of  the  property  if  it  had  been 

11  sold  as  before  provided. 

1  Section  94.    The  officer  who  takes  such  bond  shall  retiun  it  with  Bond  to  be 

2  the  writ  on  which  the  first  attachment  is  made  in  like  manner  as  bail  IhewHt. "" 

3  bonds  are  returned,  with  a  certificate  of  his  doings  therein;   and  if  the  r.I.'Io.'Ibs. 

4  bond  is  forfeited,  any  of  the  attaching  creditors  may  bring  an  action  of  p.f.ili.'lgo; 

5  contract  thereon  in  the  name  of  the  officer.  R-  l.  i67,  §  89. 

1  Section  95.     The  writ  in  an  action  on  such  bond  shall,  in  addition  to  Aetion  on  bond 

2  the  usual  endorsement,  have  the  names  of  the  creditors  by  whom  the  ihT^iTi- 

3  action  is  brought  endorsed  upon  it;  and  if  judgment  is  rendered  for  the  aiiiM,  §  so. 

4  defendants,  executions  for  the  costs  shall  be  issued  against  all  the  credi-  kI. k'7,Vbo. 

5  tors  whose  names  are  so  endorsed. 

1  Section  96.     If  judgment  is  rendered  for  the  plaintiff,  the  money  Aioncy  rerov- 

2  recovered  shall  be  first  applied,  under  the  order  of  the  court,  to  pay  the  to'the?n.'  °_ 

3  reasonable  expenses  of  prosecuting  the  action,  so  far  as  they  are  not  g!  a  12.3,  §'si. 

4  reimbursed  by  the  costs  recovered  of  the  defendant;    and  the  resi(lue  h.IVw.Vol 

5  shall  belong  to  all  the  attaching  creditors  according  to  their  respective 

6  rights. 

1  Section  97.    The  court  may,  upon  a  hearing  in  equity,  determine  pisfrihution 

2  the  rights  of  the  several  attaching  creditors  and  award  a  separate  e.xecu-  u. s"uo,§ 06. 


2416 


COMMENCEMEiSrr  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ClL\P.   223. 


G.  S.  123,  §  S2. 
P.  S.  161.  §  99, 
R.L.  107,  §92. 


tion  for  the  amount  due  or  payable  to  each,  to  be  served  and  levied  to  3 

his  own  use  in  the  manner  provided  when  a  judgment  is  rendered  on  4 

an  administration  bond;  or  it  may  award  one  execution  for  the  whole  5 

amount  due  on  the  bond  and  cause  the  money  received  to  be  distributed  6 

among  the  creditors  according  to  their  respective  rights.  7 


Prior  attach- 
ments to  be 
protected. 
R.  S.  90,  §  67. 
G.  S.  123.  §  S3. 
P.  S.  161,  §  100, 
R.  L,  167,  §  93. 


Section  9S.     No  judgment  or  execution  shall  be  awarded  for  the  use  1 

of  a  creditor  without  reserving  as  much  as  may  be  due  upon  any  prior  2 

attachment,  whether  the  creditor  in  such  prior  action  is  or  is  not  one  of  3 

those  bv  whom  the  action  on  the  bond  is  brought.  4 


^infng°in"°'  SECTION  99.    A  Creditor  who  is  entitled  to  the  benefit  of  the  bond, 

action  on  the     and  who  has  not  joined  in  bringing  the  action  thereon  mav  bring  a  ^Tit 

bond,  etc.  ..„.  i-ii  "        ^  i  • 

R.  s.  90,  §  68.    or  scire  lacias  upon  the  judgment  and  recover  any  amount  due  to  nim 
p.' s.' 161,' §101.  upon  the  bond;   or  he  mav,  upon  motion  at  anv  time  before  final  judg- 

R.L.  107,  §94.       ^      .     ,  ^.      J.      lu  +•  ^.  " 

ment,  become  a  partv  to  the  action  upon  terms. 


S.^gaT^.        Section  100.    No  creditor  whose  cause  of  action  on  such  bond  ac-  1 

p|'m'§SM  crued  more  than  one  year  before  the  commencement  of  the  action  shall  2 

R.  L.  107,  §  95.  have  judgment  or  execution,  and  no  creditor  shall  bring  a  writ  of  scire  3 

facias  upon  the  judgment,  unless  within  one  year  after  his  cause  of  4 

action  accrues.  5 


Creditor  may 
be  paid.  when. 
R.  S.  90,  §  70. 
G.  S.  123,  §  86. 
P.  S.  161,  §  103. 
R.  L.  107,  §  90. 


Section  101.  If  property  which  has  been  sold,  or  appraised  and 
delivered  to  tlie  debtor,  in  the  manner  before  pro\ided  is  attached  by 
several  creditors,  any  one  of  them  may  demand  and  receive  satisfaction 
of  his  judgment,  notwithstanding  a  prior  attacliment,  if  he  is  otherwise 
entitled  to  demand  the  money,  and  if  a  sufficient  amount  of  the  proceeds 
of  the  property,  or  of  its  appraised  value,  remains  to  satisfj'  all  prior 
attachments. 


Appraisal  at 
request  of  part 
owner. 

183.5.  143.  §  1. 
R.  S.  90,  §  73. 
G.  S.  123,  §  87. 
P.S.  161,§  105. 
R.  L.  167,  §  97. 
2  Met.  36. 
129  Mass.  127. 


ATTACHMENT   OF  SH.iRE   OF  JOINT   O^WNER   OF  PERSONALTY. 

Section  102.  If  personal  property  of  two  or  more  part  owners  is 
attached  in  an  action  against  one  or  more  of  them,  it  shall,  upon  the 
request  of  any  other  part  owner,  be  examined  and  appraised  in  the 
manner  provided  in  sections  eighty-eight  to  ninety-two,  inclusive,  except 
that  the  part  owTier  who  makes  the  application  shall,  and  the  debtor 
shall  not,  appoint  one  of  the  appraisers.  This  section  shall  not  apply 
to  partnership  property. 


Delivery  to 

part  owner. 

1835,  143, 

§§2,3. 

R.  S.  90,  §§  74, 

77. 

G.  S.  123, 

i§  88,  91. 

P.  S.  161, 

§5  106,  109. 

R.  L.  167,  §  98. 

2  Met.  30. 

108  Mass.  565. 

129  Mass.  127. 


Section  103.    The  property  so  appraised  shall  be  delivered  to  the  1 

part  owner  at  whose  request  it  was  appraised,  upon  his  giving  bond  to  2 

tlie  attaching  officer  in  a  sufficient  sum,  with  two  sufficient  sureties,  3 

conditioned  to  restore  such  property  in  like  good  order  or  to  pay  to  the  4 

officer  the  appraised  value  of  the  defendant's  share  or  interest  therein,  5 

or  to  satisfy  all  such  judgments  as  may  be  recovered  in  the  action  in  6 

which  it  is  attached,  if  demanded  within  the  time  during  which  the  7 

property  would  ha\'e  been  held  by  the  respecti\e  attachments.    Sections  8 

ninety-four  to  one  hundred,  inclusive,  shall  apply  to  such  bond  and  to  9 

an  action  thereon.  10 


pJ^!rt?!  Section  104.     If  such  appraised  value  or  any  part  tliereof  is  so  paid,     1 

R^I.'oM  75;    *'''^  defendant's  share  of  the  property  sliall  tliereby  become  pledged  to     2 


Ch.\P.   223.]        COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.  2417 

3  the  party  to  whom  it  was  delivered,  and  he  may  sell  it,  if  not  redeemed,  pgiif'^loj 

4  and  shall  account  to  the  defendant  for  the  remaining  proceeds  of  the  R- l- i67,§ 99. 

5  sale. 

1  Section  105.     If  the  attachment  is  dissolved,  the  party  to  whom  Restoration. 

2  the  defendant's  share  was  delivered  shall  restore  it  to  the  defendant,  or  g!  s!  123,  §  90. 

3  to  the  officer,  to  be  by  him  delivered  to  the  defendant.  r.l.  leV.1 100'. 


fraudulent   ATTACHMENTS. 

1  Section  106.     If  real  or  personal  property  has  been  attached  in  an  Fraudulent  at- 

2  action,  any  person,  other  than  the  parties,  who  claims  title  or  interest  defeated."'  °" 

3  therein  by  a  subsequent  attachment,  purchase,  mortgage  or  other  title,  §f\'2.*  ' 

4  may  dispute  the  validity  and  effect  of  such  prior  attachment  on  the  r^^|;9o,'§§  33, 

5  ground  that  the  amount  demanded  in  the  first  action  was  not  justly  ^f-g  ^^3 

6  due  or  was  not  payable  when  it  was  commenced,  by  filing  a  petition  in  P|^;|?- 

7  the  court  in  which  the  first  action  is  pending,  at  any  time  before  final  §§'no,  111. 

8  judgment  therein,  stating  the  facts  and  circumstances  on  which  his  igpick. ssi. 

9  petition  is  founded,  and  the  grounds  of  his  own  claim,  and  praying  that  i78  Mass.' 272. 
10  the  prior  attachment  may  be  dissolved. 

1  Section  107.    The  petitioner,  or  a  person  in  his  behalf,  shall  make  Affidavit 

2  oath  that  his  claim  is  just  and  legal  and  that  all  the  other  facts  stated  1823,142!  §3, 

3  in  the  petition  are  true  or  are  believed  by  the  deponent  to  be  true;  and,  91.*''®°'     ^*' 

4  upon  filing  the  petition,  the  petitioner,  or  a  person  in  his  behalf,  shall  §§94.^99.' 

5  give  a  bond  or  recognizance  with  sufficient  surety,  conditioned  to  pay  1*^^12^517 

6  to  the  adverse  party  such  damages  and  costs  as  may  be  awarded  to  him  R-  l.  iot,  §  102. 

7  upon  the  petition. 

1  Section  108.     If  the  court  finds  that  a  part  of  the  amount  demanded  °^o°atta°ch-°^ 

2  in  the  prior  action  is  not  justly  due,  or  was  not  payable  when  the  action  S^"*go  5  gg 

3  was  commenced,  it  shall  order  the  attachment  dissolved  in  whole  or  in  g.  s.  123,  §  95. 

4  part  as  justice  requires;    but  such  order  shall  have  no  other  effect  on  1900. 447,  §1. ' 

5  the  prior  action.    If  the  hearing  is  in  the  supreme  judicial  or  superior  ^'ptck.'^ii-  ^°  ' 


6  court,  the  court  shall,  upon  motion,  order  a  jury  trial  of  any  cjuestion 

7  of  fact 


10. 

S  Pick.  1G5. 


1  Section  109.    The  proceedings  between  the  adverse  claimants   or  Effect  of 

2  plaintiffs  shall  not  be  affected  by  any  answer,  plea  or  other  act  of  the  ^f s.  ga^s  ss. 

3  defendant  in  the  prior  action  nor  by  the  judgment  rendered  therein.         p.l. ilf/un'. 

R.  L.  167,  §  104. 

1  Section  110.    No  attachment  shall   be  dissolved   as  aforesaid   by  Defences  in 

2  reason  of  a  defence  to  the  action  which  is  founded  on  the  laws  for  the  r.'s.  90.  §  89. 

3  limitation  of  actions  or  requiring  certain  contracts  to  be  made  in  writing,  p.I.iIm  ns. 

4  or  by  reason  of  any  other  like  defence,  if  the  court  finds  that  the  demand  ^-  ^-  "''■  ^  '°^- 

5  is  otherwise  well  founded  and  is  justly  and  equitably  due. 

1  Section  111.    The  court  may,  upon  such  inquiry,  award  to  either  Damages 

2  party  reasonable  costs  and,  if  the  prior  attachment  is  maintained,  may  1823,142.  §4. 

3  award  to  the  attaching  creditor  reasonable  damages.  R-  s.  90,  §  90. 

G.  S.  123,  §98.  P.  S.  161,  §116.  R.  L.  167,  §  106.  2  Met.  229. 


2418 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [ChaP.   223. 


upon^app?ai.         SECTION  112.     If,  during  the  pendency  of  the  proceedings,  the  action  1 

G  I'mViM  ™  which  the  attachment  was  made  is  transferred  to  another  court,  the  2 

R  i'  167 1 107'  i^Q^'iry  concerning  the  attachment  shall  be  transferred  to  the  same  3 

'  court  and  be  there  heard  and  determined.  4 


Section  113.    The  judgment  of  the  court  upon  such  an  inquiry. 


Effect  of 
judgment. 

G;i.?23.Vioi.  whether  the  attachment  is  thereby  vacated  or  held  to  be  valid  and 
RL  leVlios'  effectual,  shall  be  a  bar  to  any  action  which  may  be  brought  by  the 

petitioner  against  the  party  who  made  the  attachment  for  any  supposed 

fraud  or  deceit  therein. 


Excessive  and 
unreasonable 
attachments, 
how  reduced 
or  discharged. 

1851,  233,  §  96. 

1852,  312.  §  59. 
G.  S.  123,  §  103. 
P.  S.  161.  I  121. 
1897,  460. 

R.  L.  167,  §110. 

1909,  190. 

225  Mass.  217, 

608. 

230  Mass.  197. 


REDUCTION   OR  DISCHARGE   OF  ATTACHjVIENT. 

Section  114.  If  an  excessive  or  unreasonable  attachment  is  made  1 
on  mesne  process,  the  defendant  or  person  whose  property  has  been  2 
attached  may  apply  in  writing,  in  any  county,  to  a  justice  of  the  court  3 
to  which  such  process  is  returnable,  for  a  reduction  of  the  amount  of  the  4 
attachment  or  for  its  discharge;  and  such  justice  shall  order  a  notice  to  5 
the  plaintiff,  or,  if  the  plaintiff  is  a  non-resident,  to  liis  attorney,  which  6 
shall  be  returnable  before  liimself  or  any  other  justice  of  the  same  court  7 
as  speedily  as  circumstances  permit.  If,  upon  a  summary  hearing  of  the  8 
parties,  it  is  found  that  the  attachment  is  excessive  or  unreasonable,  9 
the  justice  shall  reduce  or  dissolve  the  attachment  or  order  a  part  of  10 
the  goods  or  estate  to  be  released.  11 


DISSOLUTION   OF  ATTACHMENT. 

By  Operation  of  Law. 

StochSra"tby       Section  115.     If  the  final  judgment  is  for  the  defendant,  the  attach-     1 
^d|mejit  ^^     ment,  except  as  provided  in  section  sLxty,  shall  be  forthwith  dissolved.         2 

'    '  G.  S.  123,  §43.  p.  S.  161,  §54.  R.  L.  167,  §  111. 


Dissolution  of 
:attachment  by 
<leath  of 
<iefendant. 
1822.  93.  §  6. 
R.  S.90.|§105, 
106. 

G.  S.  123,  §§  45, 
46. 

P.  S.  161,  §§  56, 
57. 

R.L.  167,  §112. 
1913.  305. 

5  Met.  356. 
11  Gush.  463. 

6  Gray,  112, 
523. 

189  Mass.  390. 


Section  116.    An  attachment  of  real  or  personal  property  shall  be  1 

dissolved  if  the  debtor  dies  before  it  is  taken  or  seized  on  execution  2 

and  administration  of  his  estate  is  granted  in  the  commonwealth  upon  3 

an  application  therefor  made  within  one  year  after  his  decease.    The  4 

attaching  officer  shall  also,  upon  demand,  and  upon  receiving  from  the  5 

executor  or  administrator  of  such  debtor  so  appointed  his  legal  fees  and  6 

charges  for  attaching  and  keeping  the  property  attached  by  him,  deliver  7 

it  to  such  executor  or  administrator.     But  no  attachment  of  property,  8 

real  or  personal,  shall  be  so  dissolved  upon  that  part  of  the  property  9 

which  the  debtor  had  alienated  before  his  decease.  10 


201  Mass.  41. 
208  Mass.  458. 


220  Mass.  1. 
222  Mass.  131. 


226  Mass.  258. 


Liability  of 

officer  for  net 

proceeds. 

K.  S.  90.  §  107. 

G.  S.  123,  §  47. 

P.  S.  161,  §  58. 

R.L.  1G7,|113. 


Section  117.     If  the  officer  has,  before  such  demand,  sold  on  execu-  1 

tion  the  personal  property  attached  or  a  right  of  redeeming  land  at-  2 

tached  as  aforesaid,  he  shall  not  be  a  trespasser,  but  shall  be  liable  only  3 

for  tlic  proceeds  of  the  sale  after  deducting  his  legal  fees  and  charges  for  4 

attaching,  keeping  and  selling  tlie  property  attached.    Such  proceeds  may  5 

be  recovered  by  the  executor  or  administrator  in  contract.  6 


Liability  of 
creditor  for 
proceeds  paid 
over  to  him. 


Section  118.     If  the  officer  in  such  case  has,  before  such  demand,     1 
paid  over  the  proceeds  of  the  sale  to  the  judgment  creditor,  he  shall  not    2 


Ch.\P.   223.]        COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.  2419 


3  be  liable  therefor,  but  the  executor  or  administrator,  if  appointed  as  r.  s.  go,  §  los. 

4  before  provided,  may  recover  in  contract  from  the  judgment  creditor  the  p.s.'ili.'fsg.' 

5  amount  so  paid  to  him.  r.l.  167,  §114. 


1  Section  119.     The  defendant,  in  an  action  founded  on  either  of  the  set-offnot 

2  three  preceding  sections,  shall  not  be  allowed  in  any  manner  to  set  oft"  si'dl'^cie" 

3  a  demand  against  the  executor  or  administrator,  or  against  the  estate  of  §:  i;  123^/49! 

4  the  deceased.  p.  s.  lei.  §  eo.  r.  l.  i67,  §  115. 

By  giving  Bond. 

1  Section  120.     A  defendant  whose  property  has  been  attached  on  Attachments 

2  mesne  process  in  a  civil  action  may,  at  any  time  before  final  judgment,  ^^ng  bond. 

3  dissolve  the  attachment  by  giving  a  bond  with  sufficient  sureties,  who  isioily^S^^"' 

4  shall  be  approved  by  the  plaintiff  or  by  his  attorney  in  writing,  by  a  ols'm'uw 

5  master  in  chancery  or  by  a  justice  of  a  court  of  record  if  the  attachment  isVs,  68.'§  2. 

6  is  made  within  the  jurisdiction  of  his  court,  conditioned  to  pay  to  the  p.  s.'ioi.  §  122. 

7  plaintiff,  within  thirty  days  after  final  judgment  in  such  action  or  after  r.l.'i67,'§ii6. 

8  the  entry  of  any  special  judgment  therein  under  chapter  two  hundred  fcusMsf: 

9  and  thirty-five,  such  amount,  if  any,  as  he  may  recover;    and  also  to  s^Aneny'sll^' 

10  pay  to  the  plaintiff"  the  amount,  if  any,  for  which  such  special  judg-  Jo4Mass'356' 

11  ment  shall  be  entered.    Sureties  shall  not  be  sufficient  unless  they  are  lu  Mass.  101, 

12  satisfactory  to  the  plaintift",  or  unless  the  magistrate  finds  that  each,  if  iisMass. 27, 

13  there  are  only  two,  is  worth,  in  excess  of  his  indebtedness,  an  amount  ne  Mass.  527. 

14  equal  to  that  of  the  attachment;   or,  if  there  are  more  than  two,  that  i'^ '^'''^=- ^ss. 

15  they  are  together  worth  twice  such  amount. 

121  Mass.  516.  141  Mass.  154.  169  Mass.  61. 

122  Mass.  176.  150  Mass.  473.  174  Mass.  349. 

123  Mass.  363.  156  Mass.  166.  183  Mass.  290. 
130  Mass.  16.  164  Mass.  316.  235  Mass.  471. 
133  .Mass.  461.  167  Mass.  222. 

1  Section  121.     Before  such  bond  is  approved,  the  defendant,  or  a  Hearing  before 

2  person  in  his  behalf,  shall  make  application  in  writing  to  the  magis-  bond"^"  ° 

3  trate,   specifying  therein  the  names  and   residences  of  the  proposed  i85oi27,^§  i. 

4  sureties  and,  except  in  case  the  proposed  surety  is  a  surety  company  ^■st.ioo.^'"^' 

5  qualified  to  do  business  in  the  commonwealth,  therein  setting  forth  the  r  f,' \?;7  I  { if 

6  property  with  which  each  of  said  sureties  proposes  to  qualify,  and  in  J^S^?^-*-  3,0 

7  case  said  property,  as  so  set  forth,  be  realty,  then  giving  the  name  of    " 

8  the  town  wliere  the  same  is  located.    Notice  of  the  time  and  place  of  the 

9  hearing,  containing  a  copy  of  the  application  to  the  magistrate,  shall  be 

10  given  to  the  plaintiff  or  his  attorney  as  provided  in  sections  twenty-six  to 

11  twenty-nine,  inclusive,  of  chapter  two  hinidred  and  tliirty-tlu-ee;    but 

12  the  plaintiff  or  his  attorney  may  in  writing  waive  such  notice  or  may 

13  approve  the  bond  at  any  time. 

1  Section  122.     If  the  attachment  is  dissolved  and  the  defendant  pre-  Fees  to  be 

2  vails,  his  costs  shall  include  the  fees  of  the  magistrate.  defendant" 

1850,  27,  §2.  G.S.  123,  §106.  P.  S.  161,  §  124.  ™^'^- 

1867,  137,  §  2.  1881,100.  R.L.  167,  §  US. 

1  Section  123.     Such  bond   and   the   bond   required   by   section   one  Bondtobefiied 

2  hundred  and  twenty-seven  shall  be  filed  by  the  defendant  with  the  i87o!2™i,T5. 

3  clerk  of  the  court  to  which  the  writ  is  returnable,  or  in  which  the  action  p*|^.'io°i!|  125. 

4  is  pending,  within  ten  days  after  its  approval,  and  the  attachment  shall  f22^jJaJs'.6'^'*' 

5  not  be  dissolved  until  the  bond  shall  have  been  so  filed.    The  plaintift"  l^l  l\lf^  Yn 

6  may  take  such  bonds  from  the  files  upon  leaving  on  file  a  copy  thereof 


2420  COMSIENCEMENT  OP  ACTIONS,  SERVICE  OF  PROCESS.       [CliAP.   223. 

attested  by  the  clerk;    and  the  plaintiff  may  tax  the  cost  of  such  copy    7 
as  part  of  his  costs  in  an  action  on  such  bond.  8 

^rlmnfin-        Section  124.     If,  within  four  months  after  an  attachment  of  property  1 

i^9°470**°'^'  ^^^^  been  made  on  mesne  process  in  a  ci\'il  action  founded  on  a  claim  2 

Rl!  167. §120.  which  would,  if  proved,  be  barred  by  a  discharge  in  insolvency  of  the  3 

defendant  and  after  such  attaclunent  has  been  dissolved  as  pro\'ided  4 

in  the  four  preceding  sections,  proceedings  in  insolvency  are  instituted  5 

by  or  against  the  defendant,  the  action  shall,' upon  the  suggestion  of  any  6 

party  interested,  be  continued  to  await  the  residt  of  such  proceedings  7 

in  insolvency;  and  if  the  debtor  receives  liis  discharge  in  insolvency,  the  8 

sureties  on  the  bond  given  by  him  to  dissolve  the  attachment  shall  be  9 

released  from  all  liability  thereon.  10 

v&u^l°^'^^         Section  125.    A  defendant  may,  at  any  time  before  final  judgment,  1 

ilaiTisr.         release  from  attachment  the  property  attaclied,  or  such  part  thereof  as  2 

1875  68^5  2^'    ^®  ^^y  elect,  by  giving  bond  to  the  plaintiff  with  sufficient  sureties,  3 

issi]  100          who  shall  be  approved  by  the  plaintiff'  or  by  his  attorney  in  writing,  by  4 

1888, 405.  §  2.  ■  a  master  in  chancery  or  by  a  iustice  of  a  court  of  record  if  the  attach-  5 

R    T     lfi7   S  191  •  ••  ... 

1916;  148.  ■  ment  is  made  w'ithin  the  jurisdiction  of  his  court,  conditioned  to  pay  to  6 
§^426.^^'^'  the  plaintiff  within  thirty  days  after  final  judgment  in  such  action  or  7 
i92o!  2.  after  the  entry  of  a  special  judgment  therein  under  chapter  two  hundred    8 

121  Mass' 276'   ^"^  thirty-fivo  the  amount  fixed  as  the  value  of  the  property  so  re-    9 

122  Mass.  6  leased,  or  so  much  of  said  amount  as  may  be  necessary  to  satisfy  the  10 
191  Mass!  236!   amount,  if  any,  which  the  plaintiff  may  recover;   and  the  property  so  11 

released  shall  be  described  in  such  bond.  The  defendant,  or  a  person  12 
in  his  behalf,  may  make  written  application  to  any  magistrate  who  is  13 
authorized  to  approve  the  sureties  upon  said  bond  in  the  county  where  14 
the  property  is  situated,  stating  the  names  of  the  parties  to  the  action,  15 
the  name  of  the  officer  who  made  the  attachment,  a  description  of  the  16 
property  which  he  desires  to  release  from  attachment,  the  names  and  17 
residences  of  the  proposed  sureties,  and,  except  in  case  the  proposed  18 
surety  is  a  surety  company  qualified  to  do  business  in  the  common-  19 
wealth,  setting  forth  the  property  with  which  each  of  said  sureties  pro-  20 
poses  to  qualify,  and  in  case  said  property,  as  so  set  forth,  be  realty,  21 
then  gi\ing  the  name  of  ^e  city  or  town  where  the  same  is  located.  22 
The  magistrate  shall  forth^\'ith  cause  a  copy  of  the  application,  with  no-  23 
tice  of  the  time  and  place  for  the  hearing,  to  be  served  upon  the  plaintiff,  24 
if  he  resides  in  the  county,  otherwise  upon  the  officer  who  made  the  25 
attachment;  but  the  plaintiff  or  his  attorney  may  in  WTiting  waive  such  26 
notice  or  may  approve  the  bond  or  sureties  at  any  time,  or  may  agree  27 
that  the  amount  of  the  bond  is  sufficient  wthout  approAing  the  sureties,  28 
in  which  case  the  appraisal  hereinafter  pro\'idetl  for  need  not  be  made.  29 
The  notice  shall  be  served  twenty-four  hours,  at  least,  before  the  time  30 
appointed  therein  for  a  hearing  and  as  much  earlier  as  the  magistrate  31 
may  order.  At  the  time  and  place  appointed,  after  hearing  the  parties,  32 
the  magistrate  shall  appoint  three  disinterested  persons  to  examine  and  33 
appraise  the  attached  property  described  in  the  application,  who  shall  34 
be  sworn,  shall  appraise  the  property  at  its  fair  market  value  and  shall  35 
make  return  of  their  doings  in  writing  to  the  magistrate  at  a  time  and  36 
place  fixed  by  him  to  which  the  hearing  shall  be  adjourned.  At  such  37 
adjourned  hearing  the  defendant  may  give  bond  to  the  plaintiff,  with  38 
sureties,  who  shall  be  approved  by  the  magistrate  as  herein  provided.  39 
Upon  the  filing  of  such  bond,  as  is  required  by  the  provisions  of  section  40 


Chap.  223.]      commencement  of  actions,  service  of  process.  2421 

41  one  hundred  and  twenty-three,  the  attachment  upon  the  property  de- 

42  scribed  therein  shall  be  dissolved.    When  successive  attachments  in  favor 

43  of  different  plaintiffs  are  made  upon  personal  property  the  defendant 

44  may  release  from  the  attachments  the  property  attached,  or  such  portion 

45  thereof  as  he  may  elect,  by  giving  bond  with  sufficient  sureties  to  be 

46  appro\ed  as  hereinbefore  provided.    The  sheriff  of  the  county  in  which 

47  the  first  attachment  was  made  shall  be  the  obligee  on  the  bond,  which 

48  shall  be  deposited  immediately  after  it  is  given  with  the  clerk  of  the 

49  courts  for  the  same  county,  except  that  in  Suffolk  county  it  shall  be 

50  deposited  with  the  clerk  of  the  superior  court  for  ci\'il  business.    The 

51  bond  shall  be  conditioned  on  the  defendant's  paying  to  such  sheriff 

52  within  thirty  days  after  final  judgment  in  any  such  action  or  after  the 

53  entry  of  a  special  judgment  in  any  such  action  under  said  chapter  two 

54  hundred  and  thirty-five,  as  the  case  may  be,  the  amount  fixed  as  the 

55  value  of  the  property  so  released,  and  the  amount  so  paid  shall  be  held 

56  by  the  sherifP,  after  deducting  the  necessary  charges,  subject  to  the 

57  attachments  in  the  order  in  which  tlTey  were  made,  and  shall  be  disposed 

58  of  in  the  same  manner  as  the  proceeds  of  attached  personal  property 

59  sold  under  section  eighty-seven. 

1  Section  126.    The  magistrate  may  adjourn  such  hearing  from  time  Fees. 

2  to  time.    He  shall  determine  the  fees  of  the  appraisers.    The  applicant  Jig?;  \Iq  ^  *■ 

3  shall  pay  the  fees  of  the  magistrate  and  the  appraisers;    but  if  final  r;l,\67,|i22; 

4  judgment  is  in  his  fa^•or,  they  shall  be  taxed  as  a  part  of  his  costs.    The 

5  magistrate's  certificate  of  the  amount  shall  be  filed  before  said  fees  are 

6  allowed  as  a  part  of  the  taxable  costs. 

1  Section  127.     If   an   attachment   of   real   property   is   made   under  Dissolution  of 

2  sections  sixty-seven  and  sLxty-eight,   the  person  in  whose  name  the  ^eafty  fraudu- 

3  record  title  of  the  property  attached  stands,  or  a  person  in  his  behalf,  ve"'!!*^""" 

4  may,  before  final  judgment,  dissolve  the  attachment  by  giving  bond  to  J|^^;  J|^;  ^  3 

5  the  plaintiff,  with  sufficient  sureties,  conditioned  to  pay  to  him,  if  he  is^s.  68j^§  2. 

6  establishes  his  title  to  the  land  in  a  writ  of  entry  against  the  person  p.s'i6l§i2s. 

7  having  the  record  title  thereto  at  the  time  of  the  attachment,  the  as-  r  l.'i67.'§i23. 

8  certained  value  of  the  land,  or  so  much  thereof  as  shall  satisfy  the  179  Mass!  537! 

9  amount,  if  any,  which  the  plaintiff  shall  recover  upon  final  judgment,  i^i  Mass.  236. 

10  or  upon  a  special  judgment  under  chapter  two  hundred  and  thirty- 

11  five,  in  the  action  in  which  such  attachment  was  made.    All  proceed- 

12  ings  recjuired  in  the  two  preceding  sections  shall  apply  to  the  dissolution 

13  of  an  attachment  under  this  section.    In  the  trial  of  such  writ  of  entry, 

14  the  record  of  the  attachment  and  of  final  or  special  judgment,  as  the 

15  case  may  be,  in  the  action  in  which  the  attachment  was  made  shall  be 

16  conclusive  evidence  of  a  momentary  seisin  of  the  land  in  the  plaintiff  to 

17  enable  him  to  maintain  an  action  therefor  upon  his  own  seisin;   but  no 
IS  such  writ  of  entry  shall  be  brought  after  the  expiration  of  one  year  from 

19  the  date  of  such  final  or  special  judgment.     If  the  demandant  recovers 

20  judgment  on  such  writ  of  entry,  he  shall  not  have  an  execution  for 

21  possession,  but  may  have  an  execution  for  costs. 

1  Section  128.    A  defendant  may  dissolve  an  attachment  by  deposit-  DissoiuUon 

2  ing  with  the  attaching  officer  an  amount  of  monev  equal  at  least  to  the  is97, 404. 

3  amount  of  the  ad  damnum  in  the  writ,  which  the  officer  shall  hold  in  2i2ivias3'.  4i6.' 

4  place  of  the  property  attached  and  which  shall  be  subject  to  be  disposed 

5  of  in  the  same  manner. 


2422 


COMMENCEMENT  OF  ACTIONS,  SERVICE  OF  PROCESS.       [Ch,\P,   223. 


?ttachm'en"t  of  Section  129.  A  defendant  whose  individual  property  has  been  at- 
ifropeny'of  tachcd  in  an  action  against  several  defendants  may  dissoh'e  such  attach- 
onedefendant.  meut,  or  auv  part  thereof,  in  any  of  the  modes  provided  in  the  nine 
issi!  loo!  preceding  sections.  But  the  bond  to  dissolve  such  attachment  shall  be 
R.  L.  167,  §  125;  so  conditioned  as  to  apply  only  to  a  judgment  recovered  against  such 
"   defendant  alone  or  jointly. 


By  Appointment  of  Receiver. 

StT°hmen"tby  Section  130.  An  attachment  of  property  on  mesne  process  shall  be 
appomtmentof  clissolved  by  the  appointment  by  any  court  of  competent  jurisdiction  in 
1898, 420, 1 1  the  commonwealth  of  a  receiver  to  take  possession  of  such  property,  if 
19S  Mass.  159,  ■  tlic  bill  or  petition  praying  for  the  appointment  of  such  receiver  is  filed 
in  said  court  within  four  months  after  such  attachment  was  made. 


unless  the  court  at  any  time,  in  its  discretion,  continues  such  attach- 
ment for  the  benefit  of  the  estate  of  the  defendant.  In  such  case,  the 
court  may  authorize  the  receiver  to  prosecute  the  action  upon  which  the 
attachment  was  made  for  the  benefit  of  the  estate  of  the  defendant  and 
may  make  further  orders  to  enable  the  receiver  to  recover  for  its  benefit  10 
the  amount  due  to  the  plaintifl^  in  the  original  action.  11 


Discharge  of 

receiver, 

1898,  420,  §  2. 

R.  L.  167,§127. 

198  Mass.  159, 

590. 

207  Mass.  62. 


Section  131.  If  an  attachment  has  been  dissohed  in  the  manner  1 
provided  in  the  preceding  section,  the  proceedings  for  the  appointment  2 
of  a  receiver  shall  not  thereafter  be  dismissed  and  the  receiver  discharged  3 
until  all  the  assets  which  have  come  into  his  hands  as  receiver  have  been  4 
fully  distributed  or  the  claim  upon  which  the  attachment  was  made  5 
has  been  fully  paid  and  discharged,  unless  the  debtor,  before  such  dis-  6 
missal,  deposits  with  the  officer  who  made  the  attachment  such  amount  7 
of  money  as  the  court  before  which  such  receiversliip  proceedings  are  8 
pending,  after  notice  to  the  attaching  creditor  and  a  hearing,  finds  9 
reasonable  for  the  protection  of  his  claim  in  the  action  in  which  the  10 
attachment  was  made.  Such  money  shall  be  held  by  the  officer  in  place  11 
of  the  property  held  under  the  attachment  before  its  dissolution  and  12 
shall  be  disposed  of  as  such  property  would  have  been  disposed  of  had  13 
the  attachment  not  been  dissolved.  14 


Dissolution  of 
attachment  of 
real  estate  by 
plaintiff. 
1907,  334,  §  1. 
1912,  459. 


By  Entry  or  Release  in  Registry  of  Deeds. 

Section  132.     An  attachment  of  real  estate  shall  be  dissolved  by  an  1 

entry  on  the  margin  of  the  attachment  book  in  the  registry  of  deeds  in  2 

which  the  attachment  is  entered,  signed  by  the  plaintiff  in  whose  behalf  3 

the  attachment  Avas  made,  or  by  his  executor,  administrator  or  attorney  4 

of  record,  and  attested  by  the  register  of  deeds  or  by  an  assistant  in  his  5 

office  thereto  duly  authorized;  or  it  may  be  dissolved  by  a  release  signed  6 

and  acknowledged  by  the  plaintiff,  or  by  his  executor,  administrator  or  7 

attorney  of  record,  and  filed  in  the  registry  of  deeds,  or  by  a  certifi-  8 

cate  from  the  clerk  of  the  court  in  which  the  action  was  pending  that  9 

the  attachment  has  been  dissolved  or  that  the  action  has  finally  been  10 

determined.  1 1 

Such  a  release  describing  sufficiently  for  identification  any  particular  12 

parcels  of  real  estate  shall  dissolve  an  attachment  in  so  far  as  it  may  13 

affect  the  particular  parcels  described.     The  aforesaid  releases,  certifi-  14 

cates  of  court  and  partial  releases,  shall  be  filed  in  the  registry  of  deeds  15 

in  the  county  or  district  where  a  certified  copy  of  the  original  return  of  16 

attachment  is  filed  as  required  by  section  sixty-three.  17 


Chap.  224.] 


AEREST   ON  CIVIL  PROCESS. 


2423 


EXECUTION  OF  BONDS. 

1  Section  133.    A  bond  which  is  required  to  be  given  by  a  party  to  a  Execution  of 

2  civil  action  or  proceeding  may  be  executed  by  any  person  other  than  isesfiss. 

3  the  party  to  the  action  or  proceeding,  and  may  be  approved  in  the  i? a'l^e^®^  104. 

4  same  manner  as  if  executed  by  such  party,  if  it  appears  to  the  magis-  fge^JaJs  ssl*' 

5  trate  who  approves  it  that  there  is  good  reason  why  it  is  not  executed  les  Mass.  415. 

6  by  him. 


REFERENCES. 


§6. 


Service  of  process  in  penal  and  reformatory  institutions,  Chap.  127 
Completion  of  service  after  death  of  officer.  Chap.  235,  §  49. 
Attachment  of  property  of  deceased  person,  Chap.  230,  §  7. 
§§  38,  40.     Service  on  general  agent  of  foreign  e.xpress  company.  Chap.  159,  §  5. 
§§  62-70.     Attachment  of  registered  land.  Chap.  1S5,  §§  78-83. 
§  71.     Attachment  of  shares  of  stock  in  equity.  Chap.  214,  §  3,  cl.  8. 
§§  103,  120-129.     Wherever  two  sureties  are  required,  a  surety  companj'  may  be 
sole  surety,  Chap.  175,  §  105. 


CHAPTER    224. 

ARREST  ON  CIVIL  PROCESS. 


Sect. 

1.  Definitions. 

2.  Form  and  requisites  of  certificate  for 

arrest  on  mesne  process. 

3.  Women  exempt  from  arrest  on  mesne 

process  except  in  tort. 

4.  No  arrest  on  mesne  process  in  slander 

or  libel. 

5.  Reduction  of  ad  damnum.     Discharge 

if  arrest  unjust,  etc. 

6.  Arrest  on  execution.     Application  for 

certificate,  etc. 

7.  Venue  of  application  for  certificate. 

8.  Issue  and  service  of  notice  on  applica- 

tion for  arrest. 

9.  Form  of  notice. 

10.  Examination.       Default    and    nonsuit 

and  removal  thereof.    Arrest  on  origi- 
nal or  successive  execution. 

11.  Commitment  for  contempt  because  of 

transfer  of  property  pending  exami- 
nation.    Exceptions. 

12.  Production  or  assignment  of  debtor's 

property. 

13.  Redemption  of  property  transferred. 

14.  Refusal  or  acceptance  by  creditor  of 

transfer. 

15.  Subsequent  application  for  arrest. 

16.  Affidavit  not  required,  when. 

17.  Arrest  after  sunset. 
IS.  Further  arrest. 

DISCHARGE    FROM    ARREST. 

19.  Time  allowed  to  procure  bail,  etc. 

20.  Recognizance,  etc. 


Sect. 

21.  A  person  surrendered,  etc.,  may  recog- 

nize anew. 

22.  Debtor  may  take  oaths  without  sur- 

render. 

23.  Notice  of  desire  to  take  oath. 

24.  Service  of  notice. 

25.  New  notice. 

26.  Examination  of  debtor. 

27.  Certain  recognizances  may  be  accepted 

on  Sunday. 
2S.  Defendant  not  recognizing  may  be  im- 
prisoned. 

29.  Discharge  upon  taking  oath  that  de- 

fendant does  not  intend  to  leave  com- 
monwealth. 

30.  Examination  of  poor  debtor. 

31.  Discharge  upon  non-payment  of  fees, 

etc. 

32.  If  magistrate  is  satisfied,  etc.,  he  may 

administer  oath. 

33.  Certificate  of  magistrate,  and  effect  of 

discharge.     Death  of  creditor. 

34.  Discharge  of  person  giving  bail  or  on 

execution  not  requiring  certificate. 

35.  Debtor  not  entitled  to  oath  after  scire 

facias,  unless. 

IMPRISONMENT. 

36.  Commitment  when  arrested  on  mesne 

process. 

37.  Commitment  when  arrested  on  execu- 

tion. 

38.  Support  in  jail  and  discharge.     Effect. 

39.  Property  liable  for  support. 


2424 


ARREST  ON  CIVIL  PROCESS. 


[Ch.u>.  224. 


Sect. 

40.  Charges  of  fraud,  plea,  etc. 

41.  Appeal,  recognizance  and  proceedings 

in  superior  court. 

42.  Evidence. 

43.  Oath  may  be  denied.    Sentence.     New 

application. 

44.  Discharge  of  debtors  of  commonwealth. 

45.  Same  subject. 

46.  Appointment  of  special  counsel. 

47.  Insane  debtors. 

48.  Discharge  upon  final  judgment. 

49.  Bond  by  person  surrendered   by   bail 

after  final  judgment. 

50.  Debtor    may    be    committed    within 

thirty  days  after  judgment. 
61.  Surrender  of  principal  on  recognizance. 

52.  Remedy  on  recognizances  and  bonds. 

53.  Remedy  for  an  escape. 

54.  Continuance  if  magistrate  fails  to  at- 

tend. 

55.  Defendant  not  to  be  defaulted  if  magis- 

trate absent,  etc. 

56.  Appeals. 


Sect. 

57.  Habeas  corpus. 

58.  Notices,  etc.,  to  be  under  seal  of  court. 

Affidarits. 

PROCEEDINGS    AGAINST    FEMALE     JUDGMENT 
DEBTORS. 

59.  Citation  and  service. 

60.  Recognizances     of     female     judgment 

debtors. 

61.  Second  default.     Penalty. 

62.  Surrender  of  property. 

63.  Arrest  on  capias  after  sunset. 

64.  Property  fraudulently  conveyed  by  her. 

65.  Contempt  by  fraudulent  transfer. 

66.  Second  examination,  when. 

GENERAL    PROVISIONS. 

67.  Judgments  in  favor  of   the   common- 

wealth, how  enforced. 

68.  Effect  of  insolvency  or  bankruptcy. 

69.  Same  subject. 

70.  Adjournment. 


Definitions. 
1888,419.  §  12. 

1898.  559. 

1899.  445,  5  2. 
R.  L.  168. 1  68. 


Section  1.  The  ^\-ord  "court",  in  this  chapter,  shall  include  a  1 
justice  of  such  court,  and  a  special  justice  thereof  when  exercising  the  2 
functions  of  a  justice.  i9i".  326.  3 


Form  and 
requisites  of 
certificate  for 
arrest  on 
mesne  process. 
1830,  131,  4  1. 
1834,  167,  I  1. 
R.  S.  90,  §  111 
97,  §  44. 

1854,  63. 

1855,  249,  §  1 ; 
444,  §  11. 
1857,  141,  §  17 
1859,  166.  §  2. 
G.  S.  124, 
§§1.2. 
1873,  353.  §  2. 
P.  S.  162, 
I§1,2. 
1901,  343. 
R.  L.  168. 
§§1,2. 
1910,  480. 
1916,  272, 
§11.2. 
1918,  257, 
§427. 
1919,5. 
1920,  2, 
7  Gray,  59. 
13  Gray,  575. 
2  Allen,  431. 
115  Mass.  236. 
139  Mass.  461. 
167  Mass.  31 
190  Mass.  3' 
197  Mass.  22, 
200  Mass.  429. 
212  Mass.  485. 


Section  2.  No  person  shall  be  arrested  on  mesne  process  unless  1 
the  plaintiff,  or  if  the  action  is  brought  in  behalf  of  the  plaintiff  by  2 
a  guardian,  conservator  or  next  friend,  or,  where  there  are  several  plain-  3 
tiffs,  one  of  the  plaintiffs  or  a  guardian,  conservator  or  nexi;  friend  of  4 
one  of  the  plaintiffs  acting  as  such  in  the  action,  or,  in  the  case  of  a  5 
corporation,  an  officer  thereof,  makes  affidavit  and  proves  to  the  satis-  6 
faction  of  the  court  to  which  the  writ  is  returnable  —  7 

First,  That  one  of  the  parties  is  a  resident  of  or  has  a  usual  place  8 
of  business  in  the  commonwealth,  and,  except  in  actions  upon  negoti-  9 
able  instruments,  that  the  plaintiff  is  an  original  party  to  the  cause  of  10 
action  or  is  his  executor  or  administrator;  11 

Second,  That  he  has  a  good  cause  of  action  and  reasonable  expecta-  12 
tion  of  recovering  a  sum  amounting  to  twenty  dollars  exclusive  of  costs  13 
which  have  accrued  in  any  former  action,  in  an  action  of  contract,  or  an  14 
amount  equal  at  least  to  one  third  of  the  ad  damnum  in  an  action  of  tort;  15 

Third,  That  he  belie^'es  and  has  reason  to  believe  that  the  defendant  16 
intends  to  lea-ve  the  commonwealth  so  that  execution,  if  obtained,  can-  17 
not  be  served  upon  him;  18 

Fourth,  That  he  knows  of  no  property  of  the  defendant  M'ithin  the  19 

78.   commonwealth  which  can  be  reached  by  attachment  or  otherwise,  suf-  20 

ficient  to  satisfy  any  judgment  he  may  recover;  21 

Fifth,  That  he  believes  and  has  reason  to  believe  that  the  defendant  22 
has  property,  not  exempt  from  being  taken  on  execution,  which  he  does  23 
not  intend  to  apply  to  the  pajmient  of  the  plaintiff's  claim;  24 

Or,  instead  of  the  third,  foiuth  and  fifth,  that  the  defendant  is  an  25 
attorney  at  law  or  a  person,  member  of  a  firm,  agency  or  association  26 
engaged  in  the  business  of  collecting  money,  and  that  the  debt  sought  27 
to  be  recovered  is  for  money  collected  by  the  defendant  for  the  plaintiff  28 
and  that  the  defendant  unreasonably  neglects  to  pay.  29 


Chap.  224.]  arrest  on  civil  process.  2425 

30  Such  affidavit,  and  the  certificate  of  the  court  that  it  is  found  to  be  i04  Mass.  354. 

31  true,  shall  be  annexed  to  the  writ.    The  court  may  refuse  such  certifi-  Ifl  ulll'.  lli. 

32  cate  if  an  arrest  in  the  particular  case  would  be  unjust  or  unnecessary. 

33  No  arrest  shall  be  made  after  sunset  unless  expressly  authorized  in  the 

34  certificate  for  cause.  ' 

1       Section  3.     No  woman  shall  be  arrested  on  mesne  process  except  for  women  eiempt 

2,       ,  from  arrest  on 

LOrt.  mesne  process 

1S31,  131,  §  2.  1855,  444,  §  15.  G.  S.  124,  §  7.  R.  L.  168,  §  3.  except  in  tort. 

R.  S.  97,  §  46.  1857, 141,  §  30.  P.  S.  162,  §  3.  151  Mass.  363. 

1  Section  4.     No  person  shall  be  arrested  on  mesne  process  in  a  civil  No  arrest  on 

2  action  for  slander  or  libel.  in  slander  or 

1855,  249,  §  2.  G.  S.  124,  §  3.  P.  S.  162,  §  3.  R.  L.  168,  §  3.  ''''^'' 

1  Section  5.     The  court  issuing  the  process  upon  which  the  arrest  Reduction  of 

2  was  made  may,  on  motion,  reduce  the  ad  damnum  of  the  writ,  or,  if  the  Discharge  if' 

3  arrest  was  unjust  or  unnecessary,  discharge  the  defendant  from  arrest.      etT^'  unjust, 

1S9S,  397.  R.  L.  168,  §  4.  1916,  272,  §  3. 

1  Section  6.     Except  as  otherwise  provided  in  this  chapter  and  ex-  Arrest  on 

2  cept  in  actions  of  tort,  no  person  shall  be  arrested  on  execution  in  a  AppiiSin  for 

3  civil  action,  unless  the  creditor  or  a  person  in  his  behalf,  after  execution  il'iof  m^'  '"'^' 

4  has  issued  on  which  there  remains  uncollected  at  least  twenty  dollars,  J^gg'  \l\-  ^ , 

5  exclusive  of  costs  which  have  accrued  either  in  the  last  action  or  in  any  Jlgl' ^V,^  ■**• 

6  action  founded  on  the  same  orginal  cause  of  action,  makes  application  §§  i-3. 

7  for  a  certificate  authorizing  such  arrest,  files  affidavit  with  and  proves  to  §§  i-a. 

8  the  satisfaction  of  a  district  court  that  he  believes  and  has  good  reason  iseo,  215'.  1 1. 

9  to  believe  — 

p.  S.  162,  §  17.  1917,  326.  117  Mass.  1.  162  Mass.  339. 

1888,  419,  §  1.  3  Gray,  496.  139  Mass.  458,  461.  166  Mass.  226. 

1891,  407.  98  Mass.  530.  146  Mass.  89.  220  Mass.  137. 

R.  L.  168,  §  17.  99  Mass.  36.  149  Mass.  96.  136  U.  S.  468. 

10  First,  That  the  debtor  has  property,  not  exempt  from  being  taken  on  13  Gray,  575. 

11  execution,  which  he  does  not  intend  to  apply  to  the  payment  of  the  loeMassrsoi. 

12  plaintift"'s  claim;  or  127  Mass.  550. 

131  Mass.  204.  137  Mass.  467.  162  Mass.  17,  45.  189  Mass.  507. 

13  Second,  That,  since  the  debt  was  contracted  or  the  cause  of  action  i30Mass.  i89. 

14  accrued,  the  debtor  has  fraudulently  conveyed,  concealed  or  otherwise 

15  disposed  of  his  property  or  a  part  thereof,  with  intent  to  secure  it  to  his 

16  own  use  or  defraud  his  creditors;  or 

17  Third,  That,  since  the  debt  was  contracted  or  the  cause  of  action  isi  Mass.  419. 

18  accrued,  the  debtor  has  hazarded  and  paid  money  or  other  property 

19  to  the  value  of  one  hundred  dollars  or  more  in  gaming  prohibited  by 

20  the  laws  of  the  commonwealth;  or 

21  Fourth,  That,  since  the  debt  was  contracted,  the  debtor  has  wilfully 

22  expended  and  misused  his  property  or  a  part  thereof  to  enable  him  to 

23  swear  that  he  has  not  property  to  the  amount  of  twenty  dollars,  not 

24  exempt  from  being  taken  on  execution;  or 

25  Fifth,  If  the  action  was  founded  on  contract,  that  the  debtor  con-  124  Mass.  92. 

26  tracted  the  debt  with  intent  not  to  pay  it;  or      iss  Mass.  384.     i46  Mass.  439. 

27  Six-th,  That  the  debtor  is  an  attorney  at  law  or  a  person,  member  1859,  lee.  §  2. 

28  of  a  firm,  agency  or  association  engaged  in  the  business  of  collecting 

29  money,  and  that  the  debt  upon  which  the  judgment  was  recovered  was 

30  for  money  collected  by  the  debtor  for  the  creditor,  which  the  debtor 

31  unreasonably  neglects  to  pay. 


2426 


ARREST   ON  Cr\'IL  PROCESS. 


[Ch.^.  224. 


1S91,  407,  §  1. 
104  Mass.  354. 
130  Mass.  29S. 
144  Mass.  151. 
149  Mass.  96. 
153  Mass.  541. 
196  Mass.  571. 


Such  affidavit,  and  the  certificate  of  the  court  that  there  is  reason-  32 
able  cause  to  beheve  that  one  or  more  of  the  charges  therein  contained  33 
are  true,  shall  be  annexed  to  the  execution.  If  a  debtor  is  entitled  to  34 
notice  under  section  eight,  such  affidavit  may,  unless  the  court  other-  35 
wise  orders,  be  made  at  any  time  before  the  certificate  is  issued.  36 


Venue  of 
application  for 
certificate. 
ISSl,  263.  §  3. 
P.  S.  162,  §  17. 
R.  L.  168,  §  17. 
1920,  378. 


Section  7.     If  a  debtor  lives  or  has  his  usual  place  of  business  in  1 

any  county  in  the  commonwealth,  except  INIiddlesex  and  Suffolk,  the  2 

application  for  such  certificate  shall  be  made  before  a  district  court  3 

within  whose  judicial  district  he  lives  or  has  his  usual  place  of  business.  4 

If  he  lives  or  has  his  usual  place  of  business  in  Middlesex  or  Suffolk  5 

county,  the  application  shall  be  made  before  any  such  court  within  the  6 

county.    If  he  does  not  live  or  have  his  usual  place  of  business  in  the  7 

commonwealth,  the  application  may  be  made  before  any  such  court  in  8 

anv  countv.  9 


Issue  and 
service  of 
notice  on  ap- 
plication for 
arrest. 
1877,  250, 
§§  1,5. 
1879,  283,  §  2. 
P.  S.  162, 
§§  IS,  25. 
1SS7,  442, 
§§  1.2,4. 
1888, 419, 
§§  2,  4. 

1889,415,  §  1. 
R.  L.  168,  §  IS. 
129  Mass.  40. 
131  Mass.  204. 
1.34  Mass.  391, 
473. 

145  Mass.  221. 
153  Mais.  541. 


Section  8.  A  court  to  which  application  is  made  for  a  certificate, 
under  section  six,  shall,  unless  the  creditor  or  a  person  in  his  behalf 
makes  affidavit  and  proves  to  the  court  that  there  is  reason  to  be- 
lieve that  the  debtor  intends  to  leave  the  commonwealth,  issue  notice 
to  the  debtor  to  appear  before  the  court  for  examination  upon  any  or 
all  of  the  charges  specified  in  said  section.  Such  notice  shall  specify 
the  charges  on  which  the  creditor  intends  to  examine  the  debtor,  and 
may  be  served,  by  an  officer  qualified  to  serve  civil  process,  by  deliver-  8 
ing  to  the  debtor,  or  leaving  at  his  last  and  usual  place  of  abode,  an  9 
attested  copy  thereof,  allowing  not  less  than  three  days  before  the  time  10 
fixed  for  the  examination,  and  at  the  rate  of  one  hour  additional  for  11 
each  mile  of  travel.  12 


162  Mass.  17,  45. 


174  Mass.  307. 


175  Mass.  451. 


Form  of 
notice. 

1877,  250,  §  6. 
P.  S.  162,  §  19. 
R.  L.  168,  §  19. 
217  Mass.  71. 


Section  9.     Such  notice  shall  be  substantially  as  follows: 

To  A.  B. 

C.  D.,  the  judgment  creditor  named  in  an  execution  against  you,  dated 
,  issued  from  (the  court),  having  applied  for  a  certificate  au- 
thorizing your  arrest,  you  are  hereby  notified  to  appear  before  (name  of  the 
court)  at  (the  place  of  examination)  on  the  day  of 

at  o'clock  in  the  noon  for  examination  upon  the  following 

charges,  to  wit:    (Here  specify  the  cliarges  on  which  the  debtor  is  to  be 
examined.) 

Date,  signature  and  teste  as  provided  in  section  fifty-eight. 


Examination. 
Default  and 
nonsuit  and 
removal 
thereof. 
Arrest  on 
original  or 
successive 
execution. 
1877,  250,  §  2. 
1879,  283,  §  1. 
1881,263,  §  2. 
P.  S.  162,  §  20. 
1887,  442, 
§§2,4. 

18.S9,  415,  §  3. 
1890,  128. 
1897,  382. 
R.  L.  168,  §  20. 
1906,  203,  I  1. 
1914.429. 
164  Mass.  150. 

195  Mass.  440. 

196  Mass.  571. 
224  Mass.  122. 
136  U.  S.  468. 


Section  10.     If  the  debtor  appears  as  ordered,  he  shall  be  examined  1 

on  oath  on  the  charges  specified  in  the  notice.    The  examination  shall  2 

be  oral  or  -^sTitten  and  in  the  presence  of  the  court  or  otherwise,  as  it  3 

may  order.     Either  party  may  offer  additional  e^■idence.     If  written,  4 

the  examination  of  the  debtor  shall  be  signed  and  sworn  to  by  him  5 

and  preserved  by  the  court.     If  the  debtor  fails  to  appear  at  the  ex-  6 

amination  or  at  any  continuance  thereof,  or  to  comply  with  all  lawful  7 

orders  of  the  court,  or  if  at  least  one  of  charges  numbered  two  to  sLx,  8 

inclusive,  of  section  six  is  proved,  the  certificate  may  issue  authorizing  9 

arrest  on  the  original  or  a  successive  execution;   provided,  that  no  cer-  10 

tificate  shall  issue  until  the  expiration  of  twenty-four  hours  from  a  11 

default  of  the  debtor.     If  a  debtor  or  creditor  fails  to  appear  at  any  12 

time  when  required  by  the  court,  a  default  or  nonsuit  shall  be  entered,  13 

which  may  be  removed  and  further  proceedings  had,   upon  motion  14 


Chap.  224.]  arrest  on  cia'il  process.  2427 

15  made  within  twenty-four  hours  after  such  default  or  nonsuit,  if  the 

16  court  is  satisfied  that  failure  to  appear  was  not  due  to  the  fault  of  the 

17  party  not  so  appearing.     If  the  execution  expires  while  the  proceeding 

18  is  pending,  the  arrest  may  be  authorized  on  a  successive  execution.    If 

19  an  execution  to  which  a  certificate  has  been  attached  expires  before 

20  arrest  has  been  made  thereon,  a  copy  of  the  original  certificate,  certified 

21  by  the  clerk  of  the  court,  when  affixed  to  any  successive  execution,  shall 

22  have  the  same  force  as  if  the  original  certificate  were  thereto  affixed. 

1  Section  11.     If  at  such  examination  it  appears  that  after  service  Commitment 

2  of  the  notice,  and  pending  proceedings  thereon,  the  debtor  has  con-  b°ecaure  o?"* 

3  veyed,  assigned  or  transferred  property  or  money  not  exempt  from  propfrTy"^ 

4  being  taken  on  execution  with  intent  to  prevent  it  from  being  trans-  ^^"in'a'tfon''" 

5  ferred  to  the  creditor  or  applied  by  said  proceedings  to  the  satisfaction  Fg^glPl''?,''*; , 

6  of  the  execution,  and  the  court  so  certifies,  the  debtor  may  be  com-  i89o!i28.' 

7  mitted  as  for  contempt.     This  section  shall  not  apply  to  payment  of  a  iss  Mass'.  220.' 
S  debt  for  necessaries,  or  pajTuent  on  an  execution  on  which  the  debtor 

9  has  been  previously  cited  to  appear  under  this  chapter,  or  payment  of 
10  a  reasonable  counsel  fee  relating  to  the  examination. 

1  Section  12.     If  it  appears  that  the  debtor  has  property  above  the  Production 

2  amount  of  twenty  dollars,  not  exempt  from  being  taken  on  execution,  "f  debforT"' 

3  he  shall,  if  possible,  produce  the  excess  to  be  taken  on  the  execution  ?s77?25o.  §  3. 

4  or  otherwise  applied  to  the  satisfaction  of  the  judgment  and  the  costs  p^s'i^^i'^ii 

5  of  the  proceedings.     If  such  excess  cannot  be  taken  on  the  execution,  r.l.  los.  §22, 

.  .  189  Mass  34 

6  the  court  shall  order  the  debtor  to  execute  and  deliver  to  the  creditor,  ipi  m^ss!  92! 

7  or  to  a  person  in  his  behalf,  a  transfer,  assignment  or  conveyance 

8  thereof,  in  such  form  as  it  may  determine. 

1  Section  13.     A   debtor   may  redeem   real   property   so   transferred  Redemption 

2  within  one  year  and  personal  property  within  sixty  days  from  the  date  transf^ml 

3  of  such  transfer,  assignment  or  conveyance,  upon  payment  of  said  debt  ^p.'i.' it^.' Hi. 

4  and  costs  and  the  necessary  expense  actually  paid  by  the  creditor  for  ^-  ^-  ■"'®'  ^  ^•'■ 

5  the  care  or  custody  of  such  property.    If  not  so  redeemed,  the  property 

6  shall  forthwith  be  sold  at  public  auction,  unless  otherwise  provided  in 

7  the  instrument  of  transfer,  and  the  proceeds,  less  the  expenses  of  such 

8  sale,  shall  be  applied  to  the  payment  of  said  debt  and  costs,  and  any 

9  excess  shall  be  paid  to  the  debtor;  or  the  creditor  may  take  said  prop- 

10  erty  at  a  valuation  fixed  by  the  debtor  in  such  instrument  and  apply 

11  such  amount  as  aforesaid. 

1  Section  14.     The  creditor  may  refuse  to  accept  a  transfer  or  assign-  Refusal  or 

2  ment.     His  acceptance  thereof  shall  not  impair  his  right  to  have  his  credit'o1-°oF  ^^ 

3  execution  satisfied  in  whole  or  in  part  by  a  levy  on  other  property.     If  '/g^y^/ Iso,  §  3 

4  the  execution,  after  such  transfer  or  assignment  has  been  made  and  ^  |  Yol  §  2.i 

5  before  the  sale  of  the  property  conveyed  thereby,  is  satisfied  in  full,  the 

6  creditor  shall  forthwith  reconvey  said  property  to  the  debtor. 

1  Section  15.     If  the  debtor  complies  with  all  lawful  orders  made  by  Subsequent 

2  the  court,  and  if  the  truth  of  one  at  least  of  charges  two  to  six,  inclu-  forVrrSt." 

3  sive,  set  forth  in  section  six  is  not  proved,  the  certificate  shall  not  be  I^s^'uf2°'/24. 

4  granted,  and  the  judgment  creditor  shall  not,  within  three  years  there-  jf^L'iusfls 

5  after,  make  application  for  the  arrest  or  examination  of  such  debtor  127  Mass'.  s5o. 

6  upon  the  same  charge  a,nd  cause  of  action. 


2428 


ARREST   ON   CIVIL   PROCESS. 


[Chap.  224. 


Affidavit  not 
required,  when. 
G.S.  124.  §  6. 
1862,  169,  §  2. 
P.  S.  162,  §  5. 
R.  L.  168.  §  26. 
12  Allen,  71. 
143  Mass.  1S7. 


Section  16.     A  certificate  shall  not  be  required  to  authorize  arrest  1 

upon  an  execution  issued  for  costs  only  or  upon  an  execution  issued  2 

upon  scire  facias  or  other  suit  upon  a  recognizance  against  bail  or  sure-  3 

ties  in  a  criminal  case,  if  the  debtor  neglects  upon  demand  of  the  officer  4 

having  such  precept  to  deliver  to  him  property,  not  exempt  from  levy,  5 

sufficient  to  satisfy  such  execution.    A  debtor  so  arrested  shall  be  com-  6 

mitted  on  the  execution  unless  he  requests  the  officer  to  take  him  before  7 

a  court  or  magistrate  named  in  section  nineteen.  8 


Arrest  after 
sunset. 


Section  17.  \Miere  a  certificate  is  required  under  section  six,  no  1 
1857' i4i' 1 3o'  ^'■rest  shall  be  made  after  sunset  unless  expressly  authorized  in  the  2 
G.  s.'  124,'  §  8.    certificate  for  cause.  3 


p.  S.  162.  §  26. 
R.  L.  1C8,  §  27. 


1911.  192,  §  4. 
104  Mass.  354. 


129  Mass.  156. 
134  Mass.  391. 


i896!'247."^^*'  Section  18.  A  person,  under  arrest  by  a  constable  on  mesne  process 
R.L.  168,  §28.  Qj.  execution,  may  be  further  arrested  by  a  sheriff  or  his  deputy  upon  a 
writ  or  execution  which  such  constable  is  not  qualified  to  serve,  and 
thereupon  said  constable  shall  deliver  such  person  to  said  officer,  make 
return  upon  his  writ  or  execution  of  his  doings  thereon  and  deliver  it  to 
said  officer,  who  shall  hold  such  person  in  arrest  thereunder  and  com- 
plete the  service  thereof. 


Time  allowed 
to  procure 
bail,  etc, 
1787,  29, 
§§1,2. 
R.  S.  98. 
§§  1,4. 
1853,  413. 
1855,  444,  §  12. 
1857,  141, 
§§  4,  18;  258. 
G.  S.  124,  §  9. 
1873,  352,  §  3. 
P.  S.  162,  §  27. 

1888,  419,  §  5. 

1889,  415, 
§§5,6. 

R.  L.  168,  §  29. 
1917,  326. 
7  Allen,  349. 
100  Mass.  300. 
143  Mass.  187. 
157  Mass.  374. 
236  Mass.  93. 


DISCHARGE    FROM   ARREST. 

Section  19.  When  arrested  on  mesne  process,  a  defendant  shall  1 
be  allowed  reasonable  time  to  procure  bail,  and  when  so  arrested,  or  2 
arrested  on  execution,  he  shall  be  allowed  reasonable  time  to  procure  3 
sureties  for  his  recognizance.  When  arrested  on  mesne  process,  if  he  4 
does  not  give  bail,  and  when  arrested  on  execution  in  any  case,  he  shall  5 
be  taken  before  a  district  court,  or  if  he  wishes  to  recognize,  he  may  be  6 
taken  before  a  master  in  chancery.  If  the  arrest  is  made  when  the  7 
court  is  not  sitting  and  the  defendant  or  debtor  does  not  desire  to  give  8 
bail  or  to  recognize,  the  officer  making  the  arrest  may  deliver  the  de-  9 
fendant  or  debtor  to  the  keeper  of  the  jail,  to  be  there  detained  until  10 
the  next  sitting  of  the  court  for  the  transaction  of  business,  when  he  11 
shall  be  delivered  to  said  officer  to  be  taken  before  the  court.  The  12 
officer  making  the  arrest  shall  pay  in  advance  to  said  keeper,  for  the  13 
support  of  the  defendant  or  debtor,  twenty-five  cents  for  each  day's  14 
detention,  which  shall  be  charged  with  the  expenses  of  serving  the  writ  15 
or  execution.  16 


Recognizance. 

1855.  444, 
§§4,9,12. 
1857,  141, 
§§  10.  18. 
G.  S.  124.  §  10. 
P.  S.  162.  §  28. 
1888.419.  §  6. 
1891,  271. 
R.  L.  168,  §  30. 

10  Gray,  236. 

11  Gray,  226. 

13  Gray.  396. 

14  Gray,  324, 
579. 

16  Gray,  169. 

1  Allen,  456. 

463. 

4  Allen,  72. 


Section  20.  When  taken  before  the  court  or  magistrate,  the  de-  1 
fendant  or  debtor  may  recognize  with  surety  or  sureties  in  a  sum  not  2 
less  than  the  amount  of  the  execution,  or  of  the  ad  damnum  in  the  3 
writ  if  he  is  arrested  on  mesne  process,  that  within  thirty  days  from  the  4 
day  of  his  arrest  he  will  deli%'er  himself  up  for  examination  before  a  dis-  5 
trict  court,  giving  notice  of  the  time  and  place  thereof  as  herein  pro-  6 
vided,  and  appear  at  the  time  fixed  for  his  examination  and  from  time  7 
to  time  until  the  same  is  concluded,  and  not  depart  without  leave  of  8 
court,  making  no  default  at  any  time  fixed  for  his  examination,  and  9 
abide  the  final  order  of  the  court  thereon;  but  if  he  is  arrested  on  mesne  10 
process  and  the  writ  is  returnable  within  thirty  days,  the  number  of  11 


Chap.  224.]  arrest  on  civil  process.  2429 

12  clays  within  which  he  shall  deliver  himself  up  shall  be  limited  by  the  sAiien.sss. 

13  court  or  magistrate  so  as  not  to  extend  beyond  the  return   day  of  as?!'""'  ^*^' 

14  the   writ.  7  Alien,  349,  466. 

'       8  Allen,  150.  122  Mass.  412,  534.  167  Mass.  327. 

10  .yien,  344.  123  Mass.  333.  168  Mass.  102. 

14  Allen,  156,  511,  514.  124  Mass.  260.  359,  557.  169  Mass  61 

98  Mass.  31,  530.  126  Mass.  310.  177  Mass.  206. 

99  Mass.  36.  130  Mass.  557.  180  Mass.  99. 

103  Mass.  549.  142  Mass.  107.  184  Mass  92. 

104  Mass.  221.  143  .Mass.  187.  193  Mass,  203. 
106  Mass.  118.  144  Mass.  14,  79.  195  Mass.  440. 
109  Mass.  61,  503.  146  Mass.  89.  201  Mass.  385. 
Ill  Mass.  484.  148  Mass.  448.  211  Mass  69 
113  Mass.  355.  149  Mass.  221.  216  Mass.  242. 

116  Mass.  487.  157  Mass.  508.  221  Mass  49. 

117  Mass.  1.  162  Mass.  17.  226  Mass.  80. 

118  Mass.  135.  163  Mass.  20.  232  Mass.  44. 

120  Mass.  147,  240,  594.  165  Mass.  106.  233  Mass.  99 

121  Mass.  283,316, 415.  166  Mass.  296.  236  Mass.  93. 

1  Section  21.     If  a  debtor  arrested  on  execution  is  surrendered  by  his  a  person 

2  surety,  he  may  recognize  anew  for  such  appearance  at  the  time,  place  et",™my""^" 

3  and  upon  the  conditions  expressed  in  the  former  recognizance.  anew'"''^ 

G.  S.  124,  §11.     ■  P.  S.  162,  §29.  R.  L.  1C8,  §31.  104  Mass.  433. 

1  Section  22.     A  defendant  arrested  on  mesne  process  who  has  recog-  Debtor  may 

2  nized  or  given  bail  may,  without  a  surrender  by  his  sureties,  take  the  witSo'S*''^ 

3  oath  that  he  does  not  intend  to  leave  the  commonwealth,  or  the  oath  \f{i^i-^2,  §  i. 

4  for  the  relief  of  poor  debtors;    and  the  taking  of  either  of  said  oaths  £•  f •  ^,%  H^- 

,,,,.,  ,'  .  °  K.  L.  168,  S  32. 

5  shall  discharge  the  sureties.  i66  Mass.  296. 

1  Section  23.     If  the  defendant  or  debtor,   when  taken  before  the  Notice  of 

2  court,  or  at  any  time  when  entitled  thereto,  desires  to  take  an  oath  as  ^l™^  *"  '"''^ 

3  hereinafter  provided,  and  to  have  a  time  fixed  therefor,  a  district  court  lH^Zsif'll' 

4  in  the  county  where  the  arrest  was  made  shall  fix  a  time  and  place  for  1^*1-?  '■'.  §  1. 

..•^PiiP,  ,,  ,.  .  ,^  „  1759-00, 12,  §  1. 

5  examination  01  the  defendant  or  debtor  and  issue  a  notice  thereof  to  1762-3,  is,  §  1. 

6  the  plaintift'  or  creditor,  substantially  as  follows :  1S34!  le?,  §  2. 

R.  S.  98, 
Tn  A     K  55  2, 18. 

1  u  .A.  £>.  1842,  56,  §  1. 

C.  D.,  arrested  on  mesne  process  (or  execution)  in  your  favor,  desires  to  take  1S44,'  154, 
the  oath  for  the  relief  of  poor  debtors  (or  the  oath  that  he  does  not  intend  to  HjI'  ]^^^^ 
leave  the  commonwealth)  at  (naming  the  day,  hour  and  place).  §§4,'5, 12. 

Date,  signature  and  teste  as  provided  in  section  fifty-eight.  11^4 '5*18  20 

23;   258. 

7  A  defendant  arrested  on  mesne  process  may  give  notice  of  a  desire  to  ^^j  f2/23,' 

8  take  both  oaths,  in  which  case  the  form  may  be  varied  accordingly.  ^g|j  ^^^^  iV- 

R.  L.  168,  §  33.  8  Allen,  148.  126  Mass.  186. 

i917,  326.  14  Allen,  29.  129  Mass.  451. 

8  Gush.  289.  105  Mass.  341.  195  Mass.  440. 

1  Gray,  167.  106  Mass.  1  IS.  201  Mass.  385. 

8  Gray,  244.  109  Mass.  216.  211  Mass.  69. 

1  Allen,  461.  Ill  Mass.  76.  216  Mass.  242. 

7  Allen,  346,  354,  466.  124  Mass.  397,  399. 

1  Section  24.     Such  notice  shall  be  served  by  an  officer  qualified  to  Service  of 

2  serve  civil  process,  by  giving  to,  or  leaving  at  the  last  and  usual  place  1736^7, 13,  §  1. 

3  of  abode  of,  the  plaintiff  or  creditor,  or  his  agent  or  attorney,  an  at-  1741I2!  of '§  V^' 

4  tested  copy  thereof.     The  time  of  service  shall  be  not  less  than  one  1to2-3°'i8^m'' 

5  hour,  and,  if  made  at  the  last  and  usual  place  of  abode,  not  less  than  J^w,  29,  §  1. 

6  one  day,  before  the  time  fixed  for  examination,  and  not  less  than  one  1S34!  167,  §  2. 

7  hour  additional  for  each  mile  of  travel  shall  be  allowed.     If  there  is  3,  laVu. 

8  more  than  -one  plaintiff  or  creditor,  or  more  than  one  agent  or  attorney,  isll'  154,  '' 

9  service  on  one  shall  be  sufficient.    If  the  plaintiff  or  creditor  is  dead  1855.444. 

10  or  not  a  resident  of  the  county  where  the  arrest  is  made,  and  no  such  fg^' uV'^ 

11  agent  or  attorney  is  found  therein,  the  notice  may  be  served  on  the  f|4. 5^ 

12  officer  who  made  the  arrest.    The  person  who  made  the  writ  may  be  iseV,  112. 


2430 


AEREST  ON   CIVIL  PROCESS. 


[Chap.  224. 


p.  S.  162,  § 
R.  L.  168,  § 
3  Met.  568. 
11  Met.  73. 


II    deemed  the  attorney  of  the  plaintiff  or  creditor,  if  an  arrest  is  made  13 
on  the  writ  or  on  an  execution  issued  thereon.  1-i 


7  Cush.  263.  265. 
1  Gray,  167. 
10  Grav,  236. 

1  .\llen,  456,  541. 

2  Allen.  73. 
4  Allen,  70. 
7  Allen,  354. 

9  Allen,  376,  378. 
13  Allen,  39S. 


101  Mass.  313. 

103  Mass.  354. 

104  Mass.  221. 
109  Mass.  216. 

112  Mass.  58. 

113  Mass.  507. 

114  Mass.  74. 

115  Mass.  236,  358. 
119  Mass.  191.  465. 


121  Mass.  319. 

123  Mass.  52. 

124  Mass.  178,  181. 
132  Mass.  214. 

135  Mass.  411. 
145  Mass.  340,  354. 
174  Mass.  307. 
195  Mass.  440. 
229  Mass.  160. 


New  notice. 
R.  S.  98,  §  39. 
1848,  286. 
1850,212. 
1857,  141,  §  27. 
G.  S.  124,  §  14. 
P.  S.  162,  §  33. 
1888,419,  §  8. 
R.  L.  168,  I  35. 
1  Allen.  541. 
103  Mass.  549. 


Section  25.  If  a  defendant  or  debtor  gives  notice  of  a  desire  to 
take  the  oath  for  the  rehef  of  poor  debtors,  a  new  notice  thereof  shall 
not  be  given  within  seven  days  from  the  service  of  the  former  notice, 
unless  the  former  notice  was  insufficient  in  form  or  service.  If  such 
oath  has  been  refused,  the  defendant  or  debtor  shall  not  make  a  new 
application  therefor  within  seven  days  from  the  hour  of  such  refusal. 


105  Mass.  389. 
113  Mass.  355. 
124  Mass.  401, 


125  Mass.  425. 
128  Mass.  404. 
157  Mass.  508. 


158  Mass.  328. 

159  Mass.  507. 
232  Mass.  44. 


Examination 
of  debtor. 
1855.  444,  §  5. 
1S57.  141, 
§§  6,  7. 


Section  26.    If  notice  issued  under  section  twenty-three  has  been  1 

duly  served,  the  court  shall  attend  at  the  time  and  place  therein  speci-  2 

fied,  and  examine  the  defendant  or  debtor  as  provided  in  this  chapter.  3 

G.  S.  124.  §15.  R.  L.  168.  5  36.  6  Allen,  287 


1860.  215.  §  2. 
P.  S.  162,  §  34. 
1888,  419,  §  9. 


3  Met.  568. 
6  Gray,  251. 
13  Grav,  396. 


Ill  Mass.  481. 
122  Mass.  412. 
132  .Mass.  214. 


Certain 
recognizances 
may  be  ac- 
cepted on 
Sunday. 
R.  S.  98,  §  37. 
1855,  444, 
§§9,12. 
1857, 141, 
§§  10,  18. 
G.  S.  124,  §  17. 
P.  S.  162,  §  36. 
R.  L.  168.  §  38. 
1915,  9. 

I  Allen,  463. 

6  Allen,  288. 

7  Allen,  266, 
360. 

8  Allen,  148. 
150. 

9  Allen,  379. 

II  Allen,  395. 


Section  27.     Pending  the  examination  and  at  any  time  after  the  1 

defendant  or  debtor  is  taken  before  a  court,  a  court  or  magistrate  2 

named  in  section  nineteen  may  accept  his  recognizance  with  surety  in  3 

a  sum  not  less  than  the  amount  of  the  execution,  or  of  the  ad  damnum  4 

in  the  -RTit  if  he  is  arrested  on  mesne  process,  that  he  will  appear  at  the  5 

time  fixed  for  his  examination,  and  from  time  to  time  until  the  same  6 

is  concluded,  and  not  depart  without  leave  of  court,  making  no  default  7 

at  any  time  fixed  for  his  examination,  and  abide  the  final  order  of  the  S 

court  thereon.     No  recognizance  under  this  chapter,  except  in  case  of  9 

appeal  under  section  forty-one,  shall  be  accepted  after  the  oath  has  been  10 

once  refused.     Any  recognizance  authorized  by  this  chapter  may  be  11 

accepted  on  Sunday.  12 

120  Mass.  240.  121  Mass.  415.  123  Mass.  333.  126  Mass.  310. 


Defendant  not 
recognizing 
may  be 
imprisoned. 
1889,415,  §  4. 
E.  L.  168, 1  39. 


Section  28.     If  a  defendant  or  debtor  desires  to  take  an  oath  and  1 

to  have  a  time  fixed  for  his  examination,  but  does  not  recognize  to  the  2 

satisfaction  of  the  court,  it  may  make  a  certificate  thereof,  which  shall  3 

be  attached  to  the  writ  or  execution,  and  the  defendant  or  debtor  shall  4 

be  committed  to  jail  until  the  next  sitting  of  the  court  for  the  trans-  5 

action  of  business  or  until  the  time  fixed  for  his  examination,  when  he  6 

shall  be  delivered  by  the  jailer  to  the  officer  who  made  the  arrest,  to  be  7 

b-\'  him  taken  before  the  court.  8 


Discharge 
upon  taking 
oath  that 
defendant 
does  not  intend 
to  leave  com- 
monwealth. 
1855,  444,  §  12. 
1857,  141,  §  20. 
G.  S.  124,  §  IS. 
1873,  352, 
§§  1,3. 
1877.  250,  §  5. 


Section  29.  If  a  defendant  or  debtor,  arrested  on  mesne  process,  or 
on  execution  under  section  six  without  notice,  has  given  notice  that  he 
desires  to  take  an  oath  that  he  does  not  intend  to  leave  the  common- 
wealth, he  shall  be  examined  relative  thereto,  and  either  party  may 
introduce  additional  evidence.  If  the  court  is  satisfied  that  the  defend- 
ant or  debtor  did  not  when  arrested,  and  does  not  at  the  time  of  ex- 
amination, intend  to  leave  the  commonwealth,  it  shall  make  certif- 


Chap.  224.]  akrest  on  civil  process.  2431 

8  icate  thereof,  and  discharge  the  defendant  or  debtor  from  arrest;   and  rl\6|\4o 

9  immediately  upon  such  discharge,  if  the  creditor  so  desires,  such  debtor  127  isiass'  eo. 

,-      ,      „     ,  •        1  •   1         ,     !•      ,1  •  1        .  .  •  liiO  Mass.  317. 

10  shall   be  required,  without  further  notice,  to  submit  to  examination  200  Mass.  429. 

11  under  sections  ten  to  fifteen,  incliisi\e,  upon  the  charges  in  the  affidavit 

12  annexed  to  the  execution  on  which  he  was  arrested. 

1  Section  30.     If  the  defendant  or  debtor  has  given  notice  that  he  Examination 

2  desires  to  take  the  oath  for  the  relief  of  poor  debtors,  the  court  shall  i.sit'.Tsk?  §  r' 

3  examine  him  on  oath  relative  to  his  property,  the  disposal  thereof  and  l^'^s.'gs.'^' ^  ^' 

4  his  ability  to  pay  the  debt  or  satisfy  the  cause  of  action  for  which  he  \l^{  gv,^^-  3. 

5  is  arrested;  and  either  party  may  introduce  additional  ervidence.     The  }s*5^444  se 

6  plaintiff  or  creditor  may  upon  such  examination  propose  to  the  de-  iss^!  141! 

7  fendant  or  debtor  interrogatories  pertinent  to   the  inquiry,   and   the  g.s'.  124,  §  19. 

8  examination  may  be,  at  the  discretion  of  the  court,  oral  or  written,  in  r.l.\o8,'§41. 

9  which  latter  case  it  shall  be  signed  and  sworn  to  by  the  defendant  or  Ins'^Ma"  s.  40^4. 
10  debtor,  and  preserved  by  the  court. 

1  Section  31.     If  the  plaintiff  or  creditor,  after  request,  makes  de-  Discharge  upon 

2  fault  in  payment  of  the  fees,  or  if  the  plaintiff  or  creditor  or  a  person  SffeesyeTc." 

3  in  his  behalf  does  not  attend  the  examination,  the  defendant  or  debtor  Jlsf;  Itt',  §  it'. 

4  shall,  without  examination  and  without  pa^Tnent  of  fees,  be  discharged  pfiU'lel' 

5  from  arrest  or  imprisonment  and  shall  be  exempt  from  further  arrest  f^nen'^tb^*^' 

6  upon  the  same  execution  or  any  process  founded  on  the  judgment,  and  9  Alien!  37s: 

7  a  certificate  of  such  discharge  signed  by  the  court  shall  be  annexed  to  i33Massl256; 

8  the  writ  or  execution;   but  if,  after  the  oath  has  once  been  refused,  the 

9  defendant  or  debtor  again  applies  for  the  benefit  thereof,  the  fees  for 

10  such  subsequent  application  or  examination  thereon  shall  be  paid  by 

11  him. 

1  Section  32.     If,  upon  the  examination,  the  court  is  satisfied  that  'Jg'ljf^g'^'"^ 

2  the  facts  set  forth  in  the  oath  to  be  taken  by  the  defendant  or  debtor,  etc ,  he  may 

3  and  in  the  certificate  provided  for  in  the  following  section,  are  true,  it  oath. 

4  shall  administer  to  him  the  following  oath:  1727-8, 9  §  i 

1732-3,7,  §  1. 
OATH  FOR  THE  RELIEF  OF  POOR  DEBTORS.  1737-8!  iV!  §  1. 

I  (repeat  the  name)  do  solemnly  swear  that  I  have  not  any  property  to  the  1759-60. 12,  §i. 
amount  of  twenty  dollars  except  the  property  which  is  by  law  exempt  from  }787"29's'2^  '' 
being  taken  on  execution,  but  not  excepting  intoxicating  hquors;    and  that  I  1805',  ibb,  §  2. 
have  not  any  other  property  now  conveyed,  concealed,  or  in  any  way  disposed  j|J^'  J^j,  ,  j 
of,  with  the  design  to  secure  the  same  to  my  own  use  or  to  defraud  my  creditors.  1834!  167!  §  2. 
So  help  me  God.  R.  s.  9S,  §§  8, 9, 21.  ,     1S55,  444,  §§  6, 12. 

1857,  141,  §§  8,  19.  p.  S.  162,  §  39.  137  Mass.  467. 

G.S.  124,  §21.  R.  L.  IBS,  §43.  159  Mass.  446. 

1873,  343.  9  Allen,  376. 

1  Section  33.     After  administering  the  oath,  the  court  shall  make  a  Certificate  of 

2  certificate  thereof  as  follows:  "n'd^effe*t''of 

discharge. 

,  ss.    This  certifies  that  A.  B.,  a  poor  prisoner  arrested  upon  execution,  JJ^j'^^"' 

(or  on  mesne  process,)  has  caused  E.  F.,  the  creditor  (or  plaintiiT)  at  whose  suit  :698.  ii'.  §  5. 

he  is  arrested,  to  be  notified  according  to  law  of  his  desire  to  take  the  benefit  of  Jlgglj'  Jj*  ^■ 

the  law  for  the  relief  of  poor  debtors;   that  it  appears  that  said  A.  B.  has  not  §§  i,6.' 

any  property  to  the  amount  of  twenty  dollars,  except  the  projierty  which  is  by  1P,~~|'  ^^' 

law  exempt  from  being  taken  on  execution,  but  not  excepting  intoxicating  liquors;  i74i'-2',  6, 

and  has  not  any  other  property  now  conveyed,  concealed  or  in  any  way  disposed  ||-1;_bq  jj 

of,  with  design  to  secure  the  same  to  his  own  use  or  defraud  his  creditors.    And  §§  i.  4. ' 

after  due  examination  of  said  A.  B.,  the  oath  for  the  relief  of  poor  debtors  was  H^w'  '*■ 

administered  to  him.  1787,  29. 

Date,  signature  and  teste  as  provided  in  section  fifty-eight.  5§  2, 4. 


2432 


ARREST   ON   CFVIL  PROCESS. 


[ClL^P.    224, 


1816,  55. 

R.  S.  98. 

H  10,  11,  14. 

16. 

1842,  56,  §  4. 

1844,  154, 

§§7,8. 

1855,  444, 

§§  7,  12. 

1857,  141, 

§§  9,  19. 

G.  S.  124.  §  22. 

1873,  352,  §  3. 

P.  S.  162.  §  40. 

R.  L.  108,  §  44. 

7  Met.  287. 

6  Gray.  251. 

1  Allen,  456. 

6  Allen,  285. 

7  Allen,  266, 
466. 

Ill  Mass.  288. 


Upon  taking  the  oatli,  the  defendant  or  debtor  shall  be  discharged  3 

from  arrest  or  imprisonment,  and  shall  be  forever  e.xempt  from  arrest  4 

on  the  same  execution,  or  on  any  process  founded  on  the  judgment,  or  5 

on  the  same  cause  of  action,  unless  convicted  of  having  wilfully  sworn  6 

falsely  on  his  examination.    If  the  arrest  or  commitment  is  on  execu-  7 

tion,  the  judgment  shall  remain  in  full  force  against  his  property,  and  8 

the  creditor  may  take  out  a  new  execution  against  his  property  as  if  9 

he  had  not  been  committed;   and  if  he  is  committed  on  mesne  process,  10 

any  execution  which  may  afterward  issue  on  a  judgment  for  the  same  11 

cause  of  action  shall  issue  against  his  property  and  not  against  his  body.  12 

The  death  of  the  execution  creditor  shall  not  affect  proceedings  insti-  13 

tuted  under  this  chapter.                                 iirMass.  4.  14 


121  Mass.  554. 


139  Mass.  471. 


227  Mass.  350. 


229  Mass.  363. 


Discharge  of 
person  giving 
bail  or  on 
execution  not 
requiring 
certificate. 
1873,  352,  §  3. 


Section  34.  If  a  person  has  given  bail,  or  is  arrested  or  committed 
on  an  execution  not  requiring  a  certificate,  he  may  be  discharged  in 
the  same  manner  and  subject  to  the  same  provisions  of  law  as  a  person 
arrested  on  execution  under  section  six. 

p.  S.  162,  §  41.  R.  L.  168.  §  45.  105  Mass.  385.  196  Mass.  21. 


Debtor  not 
entitled  to 
oath,  after 
scire  facias, 
unless. 

1844,  154,  §  9. 
1857, 141,  §  23. 


Section  35.  No  debtor  shall  be  entitled  to  the  benefit  of  the  oath 
for  the  relief  of  poor  debtors  after  a  writ  of  scire  facias  on  the  bail  bond 
gi\en  by  him  in  the  original  action  has  been  served  upon  his  bail,  unless 
he  pays  all  costs  which  have  accrued  on  such  scire  facias. 

G.  S.  124,  §  24.  p.  S.  162.  §  42.  R.  L.  168,  §  46. 


Commitment 
when  arrested 
on  mesne 
process. 

1701-2,  5,  §  11. 
1784,  28,  §  10. 
R.  S.  90,  §  112. 
1835,444,  §  12. 
1S57,  141, 
§§  21,  22. 
G.  S.  124,  §  25. 
P.  S.  162,  §  43. 
R.  L.  168,   §  47. 
10  Gray,  491. 
8  Allen.  150. 
112  Mass.  394. 
127  Mass.  60. 


imprisonment. 

Section  36.  If  a  defendant  arrested  on  mesne  process  does  not  1 
desire  to  take  an  oath  or  falls  to  recognize  and  does  not  give  bail,  or  2 
if  on  his  examination  he  does  not  satisfy  the  court  that  he  does  not  3 
intend  to  leave  the  commonwealth,  and  the  oath  for  the  relief  of  poor  4 
debtors  is  refused  him,  and  he  does  not  give  bail,  the  court  shall  make  5 
a  certificate  thereof,  and  the  defendant  shall  be  committed  to  jail  until  6 
final  judgment  in  the  action  in  which  he  was  arrested.  If  the  final  7 
judgment  is  against  him,  he  shall,  unless  discharged  by  the  plaintiff,  8 
be  held  for  thirty  days  thereafter,  so  that  he  may  be  taken  on  execu-  9 
tion;  but,  if  the  oath  for  the  relief  of  poor  debtors  has  not  been  refused  10 
him,  he  shall  be  discharged  if  he  recognizes  as  aforesaid,  gives  bail  or  11 
bond  as  provided  in  section  forty-eight,  or  takes  the  oath  for  the  relief  12 
of  poor  debtors  or  an  oath  that  he  does  not  intend  to  leave  the  13 
commonwealth.  14 


Commitment 
when  arrested 
on  execution. 
1787,29,  §  3. 
R.  S.  98,  §  12. 
1857,141,511. 
G.  S.  124,  I  26. 
P.  S.  162,  §  44. 
R.  L.  168,  §48. 
9  Cush.  289. 
2  Gray,  210. 
1 1  Gray.  226. 
112  Mass.  394. 
121  M.1SS.  3S8. 
137  M,ass.  2.5. 
1.39  Mass.  38. 
166  Mass.  33. 


Section  37.     If  a  debtor  arrested  on  execution  does  not  desire  to  1 

take  an  oath,  or  fails  to  recognize,  or  if,  upon  his  examination,  the  oath  2 

or  oaths  are  refused  to  him,  of  which  refusal  a  certificate  shall  be  an-  3 

nexed  to  the  execution,  he  shall  be  committed  to  jail  until  he  has  recog-  4 

nized  as  herein  provided  if  the  oath  for  the  relief  of  poor  debtors  has  5 

not  been  refused  him,  or  until  the  execution  is  satisfied,  or  until  he  is  6 

released  by  the  creditor,  or  until  he  has  given  notice  as  before  pro-  7 

^•ided  and  taken  the  oath  for  the  relief  of  poor  debtors  or  the  oath  that  8 

he  does  not  intend  to  leave  the  commonwealth,  in  cases  where  such  9 

oath  is  permitted.  10 


CiLiP.   224.]  ARKEST   ON  CrV'IL  PKOCESS.  2433 

1  Section  38.     If  a  defendant  or  debtor  is  confined  in  jail  on  mesne  support  in 

2  process  or  execution  in  a  civil  action,  the  jailer  shall  furnish  his  sup-  'charge^  ''"^ 

3  port  at  the  rate  of  one  dollar  and  seventy-five  cents  a  week,  to  be  paid  c'^ff 'e  §  s- 

4  by  the  plaintiff  or  creditor,  who  shall,  on  demand  of  the  jailer,  from  {i^f-^j^^ 

5  time  to  time  advance  the  money  necessary  for  such  support.     Such  isio,  94, ' 

6  demand  may  be  made  of  the  officer  who  made  the  commitment  or  of  isii'.  22. 

7  the  plaintiff  or  creditor  or  his  attorney,  and  if  not  complied  with  within  r.  s.  lb*' 

8  twenty-four  hours  thereafter,  the  jailer  shall  discharge  the  prisoner.  II.Vms-ss, 

9  The  plaintiff  or  creditor,  at  any  time,  may  order  the  discharge  of  the  i|5f^i4i  525 

10  person  so  confined;  and  if  he  is  discharged  on  such  order  or  by  the  jailer  G-  fiilg' 

11  on  failure  to  pay  for  such  support,  the  debt  and  costs,  with  all  amounts  p-  s.  162; 

12  paid  by  the  creditor  for  the  debtor's  support  in  prison,  shall  remain  a  ii.  l.  les, 

13  legal  claim  against  his  property,  and  may  be  enforced  in  the  same  9  ct?sk°2's9. 

14  manner  as  if  he  had  not  been  committed  on  the  execution;  but  he  shall  Jos^'^iYss^sls. 

15  not  thereafter  be  liable  to  arrest  or  imprisoiunent  for  the  same  debt,  Jo|  ^jass' 373' 

16  costs  or  charges.  loe  Mass.  234.  227  Mass,  350. 

1  Section  39.     If  the  defendant  or  debtor  undertakes  to  satisfy  the  Property  iia- 

2  debt  or  execution,  he  shall  not  be  entitled  to  be  discharged  until  he  R''s°g7"|'Go^'' 

3  has  paid  all  charges  for  his  support  in  jail,  both  on  the  arrest  on  the  p|i|9'||s' 

4  original  writ  and  on  the  commitment  on  execution.         R.  l.  les.  §  si. 

1  Section  40.     If  any  of  the  five  charges  last  named  in  section  six  Charges  of 

2  is  made  as  therein  provided,  or  if  the  plaintiff  or  creditor  or  a  person  in  Itc!"''  '''*''■ 

3  his  behalf  files  any  such  charge  in  writing,  on  oath,  subscribed  by  him,  r^I'qI,'  ^  ^' 

4  pending  the  examination  of  a  defendant  or  debtor,  giving  notice  of  his  |^  |^j'  ^^^  ^s. 

5  desire  to  take  the  oath  for  the  relief  of  poor  debtors,  the  charges  shall  1844, 154,  §  11. 

6  be  considered  in  the  nature  of  an  action  at  law,  to  which  the  defendant  isss,'  m', 

7  or  debtor  may  plead  guilty  or  not  guilty,  and  which  the  court  may  iss?,  hi, 

8  thereupon  hear  and  determine.    If  a  person  arrested  on  execution  there-  g^  IWt',  ^^' 

9  after  misspends  or  misuses  to  the  amount  of  forty  dollars,  or  to  an  ||7|°'2|\;  5 1 

10  amount  equal   to  that  for  which  he  is  arrested  or  committed,   his  g^- 1%  I  it- 

11  property,  not  exempt  irom  execution,  but  which  cannot  be  attached  on  1  Gray,  172. 

12  ordinary  process  of  law,  without  first  offering  such  property  to  the  100  Mass.  287. 

13  creditor  in  whole  or  part  satisfaction  of  the  execution,  the  charge  of  il!  Mass' 92*' 

14  such  misspending  or  misuse  may  be  filed  in  the  manner  herein  provided  J27  Mass!  1%. 

15  and  like  proceedings  had  thereon.         i30  Mass.  iso.  133  Mass.  127, 250. 

142  Mass.  96.  150  Mass.  411.  162  Mass.  14,  339.  187  Mass.  202. 

1  Section  41.     A  party  aggrieved  by  a  judgment  rendered  under  the  Appeal, 

2  preceding  section  may  appeal  therefrom  to  the  superior  court  in  the  and'l^iceedings 

3  same  manner  as  from  a  judgment  of  a  district  court  in  civil  actions.  '<."u"|f"'°'" 

4  If  the  plaintiff  or  creditor  appeals,  he  shall  before  allowance  thereof  ES:,^?;,  „, 

-  ,  .    ^  f^    .  .  ,  ,.  ,SS  27,  32-35. 

5  recognize  with  sumcient  sureties  to  enter  and  prosecute  nis  appeal,  to  is57,  i4i, 

6  file  therewith  a  copy  of  all  the  proceedings  on  said  cliarges,  and  to  pay  g.s.'i24', 

7  all  costs  if  judgment  is  not  reversed.     If  the  defendant  or  debtor  Ml.^ill; 

8  appeals,  he  shall  recognize  in  like  manner,  and  with  the  further  con-  l^  l°'i68, 

9  dition  that  if  final  judgment  is  against  him  he  will,  within  thirty  days  ilj^y^'He 

10  thereafter,  surrender  himself  to  be  taken  on  execution  and  abide  the  ^  ?.''='■. ''*j^ 

11  order  of  the  comt,  or  pay  to  the  plaintiff  or  creditor  the  amount  due  3  dray!  sis! 

12  him  upon  the  claim  or  execution  as  the  case  may  be.    In  the  superior  lo  Gray,  491. 

13  court  trial  shall  be  by  a  jury  or,  with  the  consent  of  both  parties,  by  100  Ma'ss.'ssT. 

14  the  court. 

105  Mass.  617.  125  Mass.  47.  133  Mass.  256.  140  Mass.  171. 

112  Mass.  394.  126  Mass.  2S.  137  Mass.  25.  162  Mass.  339. 


2434 


.AJIREST   ON   Cn'IL  PROCESS. 


[Ch.\p.  224. 


Section  42.     At  a  trial  under  section  forty,  the  plaintiff  or  creditor 


Evidence. 
R.  S.  9S,  §31. 

iii*'i?t'|ii-  shall  not  offer  evidence  of  a  charge  of  fraud  not  made  or  filed  as  therein 

looo.  444,  so.  ^,  1       i> 

1857. 141. 1 12.  provided  or  of  a  fraudulent  act  committed  more  than  three  years  berore 

G.  S.  124,  8  -il.  %  rt     .  .    .        .  . 

P.  s.  162,  §  40.  the  commencement  of  the  oris;inal  action.  R.  l.  les,  §  52. 


Oath  may 
be  denied. 
Sentence.  New 
application. 
R.  S.  98.  §  36. 
1857,  141,  §1.5. 
G.  S.  124.  §  34. 
1872,281,  §2. 
P.  S.  162,  §  52. 
R.  L.  168,  §  55. 
9  Met.  447. 
3  Gray,  318. 
110  Mass.  18. 
137  Mass.  25, 
467. 

Discharge  of 
debtors  of 
commonwealth. 
1855,  276, 
§§1.2. 

G.  S.  124,  §  35. 
P.  S.  162,  §  53. 
R.  L.  168,  §  56. 


Same  subject, 
1855,  276, 
§§  2,  3. 

G.  S.  124,  §  36. 
P.  S.  162,  §  54. 
1888,  419,  §  10. 
R.  L.  168,  §  57. 
1917,  326. 
7  Gush.  536. 


Section  43.     If  the  defendant  or  debtor,  after  a  charge  has  been  1 

made  against  him  under  section  forty,  voluntarily  defaults  at  a  time  2 

appointed  for  trial,  or  if  upon  trial  he  is  found  guilty  of  any  such  charge,  3 

he  shall  not  benefit  by  proceedings  under  this  chapter,  and  may  be  4 

sentenced  to  imprisonment  for  not  more  than  one  year,  except  that,  5 

after  the  expiration  of  any  sentence,  he  may  renew  his  application  for  6 

the  oath  for  the  relief  of  poor  debtors,  as  though  he  had  not  been  fomid  7 

guUty  and  sentenced.          isoMass.  4ii.         159  Mass.  446.         is7  Mass.  202.  8 

Section  44.     If  a  debtor  committed  to  prison  on  a  warrant  of  dis-  1 

tress  in  iavor  of  the  commonwealth  is  unable  to  pay  the  debt  for  which  2 

he  is  imprisoned,  he  shall  be  entitled  to  discharge  in  like  manner  as  3 

poor  debtors  arrested  on  execution;  and  all  the  proceedings  shall  con-  4 

form  as  nearly  as  may  be  to  the  law  relative  to  such  debtors,  except  as  5 

hereinafter  pro\-ided.  6 

Section  45.     If  he  represents  to  the  jailer  that  he  desires  to  take  1 

the  oath  for  the  relief  of  poor  debtors,  the  jailer  shall  notify  a  district  2 

court.     The  court  shall  thereupon  appoint  a  time  and  place  for  the  3 

examination  of  the  debtor  and  notify  the  district  attorney  for  the  dis-  4 

trict  by  a  notice,  which  shall  be  served  by  giving  to  him  personally,  5 

or  by  leaving  at  his  usual  place  of  abode,  thirty  days  at  least  before  the  6 

time  appointed  for  the  examination,  an  attested  copy  thereof.  7 


Appointment 
of  special 
counsel. 
1855,  276.  §  5. 
G.S.  124.  §37. 
P.  S.  162,  §  55. 
R.  L.  168,  §  58. 


Section  46.     If  the  district  attorney  does  not  reside  in  the  town  1 

appointed  for  or  is  unable  to  attend  the  examination,  he  may  appoint  2 

counsel  in  his  stead.    For  such  attendance,  suitable  allowance  shall  be  3 

made  by  the  superior  court  for  the  county.  4 


Insane 
debtors. 
1848.  320, 
§§1.3. 
G.  S.  124, 
§§  38,  39. 
P.  S.  162, 
§§  56,  57. 
R.  L.  168, 


Section  47.     If  a  defendant  or  debtor  imprisoned  on  mesne  process  1 

or  execution  is  supposed  to  be  insane  and  incapable  of  taking  the  oath  2 

for  the  relief  of  poor  debtors,  any  person  may  file  a  petition  in  any  3 

court  named  in  section  fifty  of  chapter  one  hundred  and  twenty-three  in  4 

59.  the  county  where  he  is  imprisoned,  stating  the  facts.    The  court  shall  5 

appoint  a  time  and  place  for  a  hearing,  and  shall  order  notice  thereof  to  6 

be  given  to  the  creditor  or  his  attorney  seven  days  before  the  time  so  •  7 

appointed,  and  in  other  respects  shall  proceed  under  chapter  one  hun-  8 

dred  and  twenty-three  as  in  cases  of  insane  persons  not  under  arrest.    If  9 

satisfied  upon  the  hearing  that  the  person  is  insane,  the  court  may  order  10 

his  discharge  or  removal  to  a  state  hospital  or  to  such  other  place  as  is  11 

provided  by  law  for  insane  persons  in  any  town  in  the  commonwealth.  12 

The  legal  rights  of  the  creditor  shall  not  be  affected  by  such  discharge  or  13 

removal.  14 


Section  48.     A  person  imprisoned  in  a  civil  action  when  final  judg- 


Discharge  upon 
final  judgment. 

a¥.' 124.' 1 4a  ment  therein  is  rendered  against  him  shall  be  discharged,  upon  giving 
D  ?■  \'iv  \  rn    to  the  creditor  a  bond,  with  sufficient  surety  to  be  approved  bj'  a  court 

K.  Ij.  loo.  8  OU.  .  .  ,  ,  ,*■  **.  1111 

or  magistrate  named  in  section  nineteen,  in  a  sum  not  less  than  double 
the  amount  of  the  judgment  and  conditioned  that  he  shall  surrender 


CllAP.   224.]  AEREST  ON  CIVIL  PROCESS.  2435 

6  himself  at  the  same  jail  to  the  jailer,  between  the  hours  of  eight  and 

7  ten  o'clock  in  the  forenoon  of  the  thirtieth  day  next  after  the  rendition 

8  of  said  judgment,  or,  if  said  day  falls  on  Sunday,  on  the  next  business 

9  da^,  which  day  shall  be  specified  in  the  bond,  and  there  remain  until 

10  five  o'clock  of  the  afternoon  of  the  same  day,  so  that  he  may  be  taken 

11  on  the  execution  on  said  judgment.    If  such  person  does  not  give  such 

12  bond,  his  imprisonment  on  the  original  process  shall  continue  for  not 

13  exceeding  thirty  days  after  the  rendition  of  said  judgment,  to  allow 

14  proceedings  oja  the  execution  in  accordance  with  this  chapter. 

1  Section  49.     If  a  person  who  has  given  bail  on  mesne  process  in  a  Bond  by 

2  civil  action  is  surrendered  by  his  bail  after  final  judgment  in  such  I?endered"by 

3  action,  he  shall  be  released  upon  giving  to  the  creditor  a  bond  as  pro-  Jlfdgment  ^°''' 

4  vided  in  the  preceding  section,  except  that  the  condition  thereof  shall  (f^l'i^H'llg 

5  be  for  his  surrender  at  the  same  jail  on  the  thirtieth  day  next  after  the  p.s.'i62.'§6i.' 

■  •  •  R,   L   16S   6  6*1 

6  surrender  by  his  bail,  or,  if  said  day  falls  on  Sunday,  on  the  nexi;  busi-    '   '     ' 

7  ness  day.    The  day  on  which  the  same  will  fall,  and,  if  there  is  more 

8  than  one  jail  in  the  same  county,  the  jail  at  which  the  surrender  is  to 

9  be  made,  shall  be  specified  in  the  condition  of  the  bond,  to  which  all 

10  the  other  provisions  relating  to  the  bond  mentioned  in  section  forty- 

11  eight  shall  apply. 

1  Section  50.     If  otherwise   authorized,   the   two   preceding  sections  Debtor  may  be 

2  shall  not  prevent  an  officer  from  taking  the  debtor  and  committing  withm"hi>ty 

3  him  to  jail  on  such  execution  within  thirty  days  after  the  rendition  fudgment 

4  of  judgment  or  surrender  by  the  bail  as  he  might  have  done  if  such  g^s'i||'||4 

5  bond  had  not  been  given;  and  such  commitment  of  the  debtor  shall  be  p.s.ig2,'§ 62.' 

6  equivalent  to  his  surrender  according  to  the  condition  of  his  bond,  and 

7  shall  discharge  it. 

1  Section  51.     Whoever  recognizes  as  surety  for  another  as  provided  Surrender  of 

r»'i'i  'ipii(>i  •  principal  on 

2  m  this  chapter  may  at  any  time  before  breach  or  the  recognizance  recognizance. 

3  surrender  his  principal  and  exonerate  himself  from  further  liability,  in  c.  s.'i24,'§45.' 

4  the  manner  provided  for  surrender  by  bail,  and  all  proceedings  on  such  r  l.  les,  §  es'. 

5  surrender  shall  be  the  same  as  provided  in  the  case  of  bail.  HI  Mass!  53°; 

19-4  Mass.  24. 

1  Section  52.     If  the  condition  of  a  recognizance  or  bond  taken  under  Remedy  on 

2  this  chapter  is  broken,  the  creditor  may,  within  one  year  after  such  amrbond"."^^ 

3  breach,  commence  an  action  thereon;    and  judgment  shall  be  entered  {ss?!  hi,' I  Is. 

4  for  the  amount  of  the  penalty,  but  execution  shall  issue  for  so  much  ^g^^-  \~*^  |  j*^- 


102. 

64,  65. 


5  thereof  only  as  may  be  justly  and  equitably  due.     If  the  recognizance  P;  | 

6  was  taken  on  an  execution,  the  execution  in  such  action  shall  not  issue  R-  l^'ios.  §  as. 

7  for  less  than  the  amount  due  on  the  original  judgment,  with  costs  and  5  Alien!  393. 

8  charges  arising  after  the  issuing  of  the  original  execution.    Such  actions  i7o^Mas3^428. 

9  in  favor  of  the  commonwealth  shall  be  brought  in  the  court  in  which  Jgf  Ma^'sl^' 
10  the  original  judgment  was  rendered.  197  Mass.  94.  221  Mass.  271. 

1  Section  53.     If  a  prisoner,  arrested  or  committed  on  execution  in  Remedy  for 

2  a  civil  action,  escapes  with  the  consent  or  by  the  negligence  of  the  issf  TsT 

3  officer,  the  creditor  may  recover  in  tort  against  the  officer  such  damages  |j  yj^^j 

4  as  he  has  suffered  by  the  escape,  and  may  also  have  against  the  original  pl/lo'lee' 

5  debtor  a  scire  facias  or  an  action  on  the  judgment. 

R.  L.  168,  §  67.  2  Gray,  214.  4  Allen.  74. 

2  Mass.  620.  10  Gray,  365.  6  Allen,  260. 


2436 


ABREST   ON  CIVlh  PROCESS. 


[Ch.^.p.  224. 


Continuance  if 
magistrate  fails 
to  attend. 
1870,  77. 
P.  S.  162.  §  67. 
R.  L.  168.  §  69. 
216  Mass.  242. 


Section  54.  If  a  justice  fails  to  attend  at  the  time  and  place  to 
which  any  process  under  this  chapter  is  returnable  or  is  continued, 
any  justice  of  a  court  named  in  section  six  may  attend  at  such  time  and 
place  and  may  continue  the  proceeding  for  not  more  tlian  thirty  days, 
without  costs,  saving  the  rights  of  all  parties;  and  he  shall  make  a  certifi- 
cate thereof,  which  shall  be  by  him  delivered  to  the  court  before  which 
such  process  is  pending. 


Defendant  not 
to  be  defaulted 
if  magistrate 
absent,  etc. 
1SS7,  442,  §  3. 
R.  L.  16S,  §  70. 
163  Mass.  79. 
165  Mass.  106. 
216  Mass.  242. 


Section  55.  A  defendant  or  debtor,  arrested  on  mesne  process  or 
execution,  shall  not  at  any  appointed  hearing  suffer  default  by  reason 
of  the  absence  or  disability  of  a  justice  qualified  to  act,  if,  within  tliree 
days  thereafter,  such  defendant  or  debtor  shall  provide  for  a  continu- 
ance of  the  hearing  by  issuing  a  new  notice  to  the  creditor,  which  shall 
be  served  as  provided  in  section  twenty-four. 


Appeals. 
1888,  419,  §  12. 
1S98,  659. 
R.  L.  168,  §  71. 
10  Gray,  491. 


Section  56.  There  shall  be  no  appeal  from  a  judgment  or  order  of  1 
a  court  under  any  provision  of  this  chapter,  except  as  expressly  pro-  2 
vided  in  section  forty-one.  8  Alien,  iso.  3 


Habeas  corpus. 
1888,419,  §  12. 
1898,  659. 
R.  L.  168,  §  72. 


Section  57.  A  court  acting  under  this  chapter  may  issue  a  wTit  of 
habeas  corpus  to  bring  before  him  for  examination  or  for  entering 
into  a  recognizance  a  defendant  or  debtor  imprisoned  on  mesne  process 
or  execution,  and  the  proceedings  thereon  shall  be  in  accordance  with 
chapter  two  hundred  and  forty-eight  so  far  as  applicable. 


Notices,  etc., 
to  be  under 
seal  of  court. 
Affidavits. 
1889,415,  §  2. 
R.  L.  16S,  §  73. 
1910,  84. 
157  Mass.  374. 


Section  58.     All  certificates,  notices  and  other  processes  required  1 

by  this  chapter,  if  issued  by  a  district  court,  shall  be  under  the  seal  of  2 

the  court,  signed  by  the  clerk  or  an  assistant  clerk  thereof,  and  bear  3 

teste  of  a  justice  of  the  court  who  is  not  an  interested  party  in  the  pro-  4 

ceeding.     All  affidavits  required  under  section  six  may  be  made  and  5 

sworn  to  before  a  clerk  or  assistant  clerk  of  the  courts  named  therein.  6 


Citation  and 
service. 
1862,  162, 
§§1,2. 
P.S.  162, 
K6,7. 
1897,  466,  §  1. 
R.  L.  16S, 
§§6,7. 
1909,119. 
1911,192,  §  1. 
1917,  326. 
151  Mass.  363. 


proceedings   AGAINST   FEMALE   JUDGMENT  DEBTORS. 

Section  59.    The  judgment  creditor  in  an  execution  issued  against  1 

a  woman  upon  which  there  remains  uncollected  at  least  twenty  dollars,  2 

exclusive  of  costs  which  have  accrued  either  m  the  last  action  or  in  any  3 

former  action  founded  on  the  same  original  cause  of  action,  or  a  person  4 

in  behalf  of  such  creditor,  may  file,  in  a  district  court  in  the  county  where  5 

the  debtor  resides  or  has  her  usual  place  of  business,  a  petition  on  oath,  6 

with  a  copy  of  the  execution,  stating  the  fact  of  the  last  judgment  and  7 

alleging  that  he  believes  that  the  debtor  has  property,  not  exempt  from  8 

attachment,  which  she  refuses  to  apply  in  payment  of  said  execution,  9 

and  asking  that  a  citation  issue  requiring  her  to  appear  at  a  time  and  10 

place  to  be  fixed  by  the  court  and  submit  to  an  examination  relative  11 

to  her  property;  and  thereupon  the  clerk  of  said  court  shall  issue  such  12 

citation,  allowing  the  debtor  not  less  than  three  days  before  the  time  13 

so  fixed  and  at  the  rate  of  one  hour  additional  for  each  mile  of  travel.  14 

Such  citation  shall  be  served,  by  an  officer  qualified  to  serve  the  execu-  15 

tion,  by  delivering  to  the  debtor,  or  leaving  at  her  last  and  usual  place  16 

of  abode,  an  attested  copy  of  the  citation.  17 


Recognizances 
of  female 
judgment 
debtors. 


Section  60.     Upon  proof  of  service  by  the  return  of  the  officer,  if     1 
the  debtor  fails  to  appear  as  ordered,  or  if  she  fails  to  appear  at  any    2 


ClLVP.   224.]  AEEEST   ON  CH'IL  PROCESS.  2437 

3  adjournment  of  the  hearing,  the  court,  upon  the  request  of  the  creditor,  is62, 162.  §  3. 

4  may  issue  a  capias  to  bring  her  before  it  for  examination  forthwith,  r'.  l.  ibs.  §  s. 

5  or  at  a  time  to  be  then  fixed  by  it,  which  may  be  served  by  an  officer  ^®^^'  ^^~'  ^  ^■ 

6  qualified  to  serve  the  citation.    A  debtor  taken  into  custody  on  a  capias 

7  issued  under  this  or  the  following  section  shall  be  subject  to  the  pro- 
S  visions  of  sections  nineteen,  twenty,  twenty-one,  fifty-one  and  fifty-two, 
9  so  far  as  they  relate  to  male  debtors  arrested  on  execution,  except  that 

10  the  only  condition  of  the  recognizance  following  an  arrest  on  a  capias 

11  issued  under  this  section  shall  be  that  within  ten  days  after  the  day 

12  of  her  arrest  she  will  present  herself  before  the  court  issuing  the  capias, 

13  for  further  proceedings  as  stated  in  the  following  section,  first  leaving 

14  at  the  office  of  the  attorney  of  record  for  the  creditor  in  these  proceed- 

15  ings  a  -RTitten  notice  of  the  time  and  place  at  which  she  ■nill  so  present 

16  herself,  or,  if  there  is  no  such  attorney,  by  delivering  it  to  the  creditor 

17  at  least  twenty-four  hours  before  said  time.    A  copy  of  the  notice,  ac- 

18  companied  by  the  debtor's  sworn  statement  of  the  time  and  place  where 

19  said  ser\'ice  was  made,  shall  be  filed  with  the  court,  which  shall  cause  a 

20  record  of  the  filing  of  the  certificate  and  the  appearance  of  the  debtor  to 

21  be  made  in  the  proceedings. 

1  Section  61.     The   debtor,   when   so   brought  before   the  coiu-t,    or  Second  default. 

2  when  she  appears  before  it  in  accordance  with  her  recognizance,  shall  isgo,  im,  §  4. 

3  be  informed  by  it,  or  under  its  direction,  of  her  liability  upon  a  sub-  r.l.\o8.|9. 

4  sequent  default.    She  then  shall  be  sworn  to  make  true,  full  and  per-  i^"'  i^^,  §  2. 

5  feet  answers  relative  to  her  property  and  the  disposal  thereof;    and 

6  she  shall  thereupon  be  examined  by  the  creditor  either  forthwith,  or 

7  at  such  time  as  may  be  iLxed  by  agreement  or  by  direction  of  the  court. 

8  The  examination  shall  be  oral  or  written,  at  the  discretion  of  the  court, 

9  and  if  upon  written  interrogatories,  in  the  presence  of  the  court  or 

10  otherwise  as  it  shall  order;    and  after  such  examination  she  may  add 

11  such  other  facts  as  she  may  consider  necessary,  and  the  creditor  may 

12  re-examine  her  relative  thereto.     Such  examination,  if  WTitten,  shall  be 

13  signed  by  her  and  filed  with  the  court.     Either  party  may  introduce 

14  evidence  relative  to  the  subject  matter  of  such  examination.    The  ex- 

15  amination  may  be  adjourned  from  time  to  time  in  the  discretion  of  the 

16  court;  and  if  the  debtor,  after  having  once  been  before  the  court  by  rea- 

17  son  of  a  capias  issued  under  the  preceding  section,  again  makes  default, 
•18  she  shall  be  considered  in  contempt  of  the  coiut,  which  may  issue  a  capias 

19  to  bring  her  before  it  to  answer  therefor,  and  after  a  hearing,  if  no  satis- 

20  factory  reason  is  shown  for  the  default,  she  may  be  punished  for  the 

21  contempt  by  a  fine  not  exceeding  fifty  dollars  or  by  imprisonment  in 

22  jail  for  not  more  than  fifteen  days.    The  court  may  require  the  debtor 

23  to  continue  the  examination  after  the  contempt  proceedings  have  been 

24  disposed  of,  with  liability  to  punishment  in  like  manner  for  failure  to 

25  attend  any  subsequent  hearing.    A  capias  issued  under  this  section  may 

26  be  ser\-ed  by  an  ofiicer  qualified  to  serve  the  execution,  and  if  the 

27  arrest  is  made  when  the  court  is  not  sitting  and  the  debtor  wishes  to 

28  recognize,  the  only  condition  of  the  recognizance  shall  be  that  she  will 

29  appear  before  the  court  issuing  the  capias  at  the  opening  of  the  next 

30  sitting  of  the  court,  and  remain  until  her  case  is  reached  for  action.     Un- 

31  der  this  form  of  recognizance  the  debtor  shall  not  be  required  to  notify 

32  the  creditor  or  his  attorney  of  her  intention  to  appear.     It  shall  be  the 

33  duty  of  the  arresting  officer  to  be  present  with  the  capias  at  the  opening 

34  of  said  sitting,  and,  unless  sooner  excused  by  the  court,  he  shall  remain 


2438 


ARREST   ON  CIVIL  PROCESS. 


[Ch.u>.  224. 


in  attendance  t6  execute  such  further  process  as  may  be  issued  in  connec-  35 
tion  with  said  arrest.  Upon  the  return  of  the  capias  to  the  court,  the  36 
debtor  shall  be  called  and  a  record  of  the  facts  made  in  the  proceedings.  37 


Surrender  of 
property. 
1862,  162,  §  5. 
P.  S.  162,  §  10. 
R.  L.  168,  §  10. 
1911,  192,  §  3. 


Section  62.     If  it  appears  upon  the  completion  of  such  examination  1 

that  the  judgment  debtor  has  property  of  the  ^•alue  of  twenty  dollars,  2 

not  exempt  from  attachment  or  from  being  taken  on  execution  or  which  3 

cannot  be  reached  on  execution,  judgment  to  that  effect  shall  be  entered  4 

and  she  shall  produce  such  property,  or  so  much  thereof  as  may  be  5 

needed  to  satisfy  such  execution,  with  the  costs  of  the  proceedings  upon  6 

such  citation;    or  if  said  property  is  not  within  the  county  where  the  7 

proceedings  are  had,  or  is  not  capable  of  being  taken  on  execution,  she  8 

shall  execute  and  deliver  to  the  judgment  creditor  or  to  a  person  in  his  9 

behalf  a  transfer,  assignment  or  conveyance  thereof,  or  of  so  much  10 

thereof  as  may  be  sufficient  to  satisfy  said  execution  and  said  costs,  or  11 

to  secure  the  paj-ment  thereof.     If,  upon  being  ordered  so  to  do,  she  12 

fails  to  comply  with  such  order,  she  shall  be  committed  by  said  court  13 

as  for  a  contempt,  until  she  complies  with  such  order  or  is  otherwise  14 

discharged  by  law.  15 


Arrest  on 

capias  after 

sunset. 

1S55,  444,  §  15, 

1857,  141,  §  30. 

G.  S.  124,  §  8. 

P.  S.  162,  §  26. 

R.  L.  168,  §  27. 

1911,  192, 

H  4,  5. 

104  Mass.  354, 

Property 
fraudulently 

conveyed  by 

her. 

1862, 162,  §  7. 

P.  S.  162,  §  12. 

R.  L.  168.  §  12. 

Section  63.  No  arrest  on  a  capias  issued  under  section  sixty  or 
section  sixty-one  shall  be  made  after  sunset  unless  expressly  authorized 
therein  for  cause.  Every  such  capias  shall  contain  a  statement  of  the 
amount  and  date  of  recovery  of  the  judgment  on  which  the  execution 
issued,  the  names  of  the  parties  to  the  action  and  the  conditions  under 
which  the  debtor  may  recognize  when  arrested. 

129  Mass.  156.  134  Mass.  391. 

Section  64.  If,  after  the  commencement  of  the  action  upon  which 
the  judgment  was  obtained,  the  debtor  makes  a  voluntary  or  fraudulent 
conveyance,  transfer  or  gift  of  any  property,  she  may  be  required  to 
transfer  it  to  the  creditor,  who  may  thereupon  demand  such  property 
and  recover  it  from  the  person  who  received  it,  or  from  any  person  who 
may  have  taken  it  without  consideration  or  with  notice  of  the  fraud 
or  want  of  consideration  of  the  original  transfer,  conveyance  or  gift. 


Contempt  by 
fraudulent 
transfer. 
1862, 162,  I  8. 
P.  .S.  162,  §  13. 
R.  L.  168,  §  13. 


Section  65.     If,  after  the  service  of  the  citation  upon  the  debtor  1 

and  during  the  pendency  of  the  proceedings  thereon,  she  makes  a  con-  2 

veyance,  assignment  or  transfer  of  property  or  a  payment  of  money,  3 

with  intent  to  prevent  it  from  being  transferred  or  paid  to  the  creditor  4 

or  applied  by  said  proceedings  to  the  satisfaction  of  said  judgment,  5 

she  may,  in  the  discretion  of  the  court,  be  committed  as  for  a  contempt;  6 

but  this  section  shall  not  apply  to  the  pa\iuent  by  the  debtor  of  a  debt  7 

for  necessaries,  or  pa^•ment  on  an  execution  upon  which  she  previously  8 

has  been  cited  to  appear  under  this  chapter,  or  paATuent  of  a  reasonable  9 

counsel  fee  relating  to  the  examination.  10 


Second  exam- 
ination, when 


Section  66.     After  the  expiration  of  three  years  from  the  termina-  1 

i\s"'i62%S'5.'  tion  of  such  proceedings  and  while  the  judgment  remains  in  force,  the  2 

E.  L.  168,  §  15.  creditor  may  cause  like  proceedings  to  be  commenced  anew.  3 

1909,  119,  §  1. 


CliVP.  225.]      PROCESS  AFTER  JUDGMENT  FOR  NECESS.U{IES   OR  L.\BOR. 


2439 


GENERAL  PROVISIONS. 

1  Section  67.     A  Judgment  in  fa\'or  of  the  commonwealth  against  Judgments  in 

2  a  male  or  female  defendant  may,  if  tlie  attorney  general  or  the  district  conimonweaith, 

3  attorney  for  the  district  where  such  judgment  was  recovered  so  orders  msTh"!.'"'  ' 

4  in  wTiting  upon  the  execution,  be  enforced  in  accordance  with  sections  I'sor/iral.VL' 

5  fifty-nine  to  sixty-six,  inclusive,  and  the  following  section.  ^-  ^-  ^''*'  ^  ^''■ 

1  Section  68.     If  a  female  judgment  debtor  during  commitment  under  Effect  ot  in- 

2  section  sixty-one  or  sixty-two  becomes  an  insolvent  debtor  under  the  bankruptcy. 

3  laws  of  the  commonwealth  or  a  bankrupt  under  the  laws  of  the  United  I^',s^'uiL^'§S^i. 

4  States,  or  if  it  appears  that  she  has  been  divested  of  her  property  fgig' 333' 1 32 

5  chu-ing  such  commitment  otherwise  than  by  her  own  act,  she  shall  be  1920!  2. 

6  discharged  upon  her  application  to  the  court  which  committed  her, 

7  after  such  notice  as  the  court  may  order.    This  section  shall  also  apply 

8  to  male  persons  committed  under  section  thirty-six  or  tliirty-se\en  of  this 

9  chapter  or  under  section  four  of  chapter  two  hundred  and  twenty-five. 

1  Section  69.     If  a  person  arrested  on  mesne  process  or  on  execution  same  subject, 

2  becomes  an  insolvent  debtor  under  the  laws  of  this  commonwealth  or  Jgooi  2^'''  ^  ^^' 

3  a  bankrupt  under  the  laws  of  the  United  States,  or  if  it  appears  that 

4  subsequent  to  his  arrest  he  has  been  divested  of  his  property  otherwise 

5  than  by  his  own  act,  he  shall  be  discharged  upon  his  application  to  a  dis- 

6  trict  court  in  the  county  where  the  arrest  was  made,  after  such  notice  as 

7  the  court  shall  order. 


1  Section  70.     In  any  proceeding  under  this  chapter  the  court  may  Adjournment. 

2  adjourn  the  case  from  time  to  time,  and  shall  have  the  same  powers  isIoIq^s'I. '' 

3  relative  to  all  other  incidents  thereto  as  other  courts  have  in  civil  i8.^',H'if§^'7. 

4  actions;   and  witnesses  duly  summoned  shall  attend  as  required  in  civil  ^g.^-  ^£^  %  \^- 

5  cases.  p.  s.  162,  §§  is,  35.  r.  l.  ics,  §§  is,  37. 


6  Allen,  287. 

7  Allen,  354. 

8  Allen,  ISO. 


11  Allen,  29,  395. 
14  Allen,  157. 
124  Mass.  383. 


147  Mass.  69. 
164  Mass.  150. 
177  Mass.  206. 


REFERENCES. 

Mariner  who  has  shipped  or  contracted  to  go  on  a  voyage  shall  not  be  arrested 
on  mesne  process  for  a  debt  to  a  landlord  or  boarding  house  keeper.  Chap.  102,  §  2. 
Poor  debtor  process  upon  arrest  for  failure  to  pay  taxes.  Chap.  60,  §  31. 
Soldiers  exempt  from  arrest  on  civil  process  when  ou  duty,  Chap.  33,  §  70. 


CHAPTER    225. 

PROCESS  AFTER  JUDGMENT  FOR  NECESSARIES  OR  LABOR. 


Sect. 

1.  Nature,    grounds    and    jurisdiction    of 

process. 

2.  Procedure,  evidence  and  finding. 
3    Grotinds  of  new  proceeding. 

4.  Enforcement    of    decree.      Contempt. 

Release  of  debtor. 

5.  Application  by  debtor. 


Sect. 

6.  Suspension  of  other  proceedings. 

7.  Intervening  petition  by  second  creditor. 

8.  Suspension  or  revision  of  decrees. 

9.  Costs. 

10.  Constable  may  serve  process. 

11.  Certain  sections  of  preceding  chapter 

applicable. 


2440 


PROCESS  AFTER  JXTDGMENT   FOR  NECESSARIES   OR  L.VBOR.      [ClLVP.  225. 


Nature, 
grounds  and 
jurisdiction  of 
process. 

1898,  549,  §1. 

1899,  445,  i  1. 
1901,  176. 

R.  L.  168,  §  SO. 
1913,  471,  §  5. 
173  Mass.  498. 
IDS  Mass.  457. 
233  Mass.  39. 


Section  1.  Upon  application  of  a  judgment  creditor,  with  affidavit  1 
by  him  or  a  person  in  his  behalf  that  the  judgment  is  founded  upon  a  2 
claim  for  necessaries  of  life  furnished  to  the  judgment  debtor  or  his  3 
family,  or  for  work  or  labor  performed  by  the  creditor  for  the  debtor,  4 
the  district  court  of  the  judicial  district  where  the  debtor  lives,  or,  if  he  5 
does  not  live  within  such  district,  a  district  court  having  a  judicial  dis-  6 
trict  within  the  county  and  adjoining  or  near  the  town  where  the  debtor  7 
lives,  shall  issue  a  notice  to  the  debtor  to  appear  at  a  time  and  place  8 
named  therein  to  show  cause  why  an  examination  into  his  circumstances  9 
should  not  be  made  and  a  decree  entered  that  he  pay  such  judgment  10 
in  full  or  by  instalments.  Said  notice  shall  be  served  by  delivering  to  11 
the  debtor,  or  by  leaving  at  his  last  and  usual  place  of  abode,  a  copy  12 
thereof,  at  least  seven  days  before  the  return  day.  If  it  appears  that  13 
said  notice  was  not  duly  served,  the  court  may  continue  the  proceedings  14 
and  issue  a  new  notice.  15 


Section  2.     At  the  hearing,  which  may  be  held  in  the  absence  of  the 


Procedure, 
evidence  and 

1898?S49,  §  1.    debtor,  the  com't  shall  first  determine  whether  the  judgment  is  founded 
i9oi'  i7fi'  ^  ^'    o^  ^  claim  for  necessaries  of  life,  or  for  work  or  labor  performed  by  the 
fsn  In  ^  5°'  creditor  for  the  debtor,  and,  if  it  so  finds,  shall  inquire  as  to  his  circum- 
196  Mass!  384.   stances,  income  and  ability  to  pay  said  judgment.     If  it  finds  that  he 
is  able  to  pay  it  in  full  or  by  instalments,  it  may,  after  allowing  the 
debtor  a  sufficient  part  of  his  income,  which  need  not  be  stated,  for  the 
support  of  himself  and  family,  enter  a  decree  fixing  the  time,  place  and 
amount  of  payments  to  be  made  by  him  out  of  his  income,  to  be  applied 
first  to  the  costs  of  proceedings  under  this  chapter  and  next  to  the  reduc- 
tion of  said  judgment.    If  it  finds  that  the  debtor  is  unable  to  pay  the  11 
judgment  in  full  or  by  instalments,  it  shall  enter  the  finding  and  dismiss  12 
the  proceedings.  13 


1 

2 

3 
4 
5 
6 

7 

8 

9 

10 


Grounds  of 
new  proceeding. 

1898,  640,  §  1. 

1899,  445,  §  1. 
1901.  176. 

R.  L.  IBS,  §  80. 
1913,  471,  §  6. 


Section  3.     If  proceedings  are  dismissed  under  the  preceding  section,  1 

no  new  application  shall  be  entertained  unless  the  creditor  or  a  person  2 

in  his  behalf  files  an  affidavit  stating  in  substance  the  evidence  relied  3 

on  to  show  a  change  in  the  debtor's  circumstances,  and  the  court  finds  4 

that  there  is  occasion  for  a  new  inquiry.  5 


ot'deCTe"""*  Section  4.  Decrees  under  this  chapter  may  be  enforced  by  pro- 
Reieaso'Sf'  cccdings  for  contempt  as  in  a  court  of  equity;  but  not  more  than  fourteen 
debtor  ^  days'  imprisonment  shall  be  imposed  for  any  one  such  contempt.  The 
R.  l!  168, 1  si.  debtor  may  be  released  by  order  of  the  court  upon  pajment  of  the  judg- 
196  Mass!  384.  uient  and  costs  or  upon  gi^^ng  a  bond  to  the  creditor,  vnth  one  or  more 


sureties  approved  by  the  court,  conditioned  to  comply  with  existing  or 
subsequent  decrees  of  the  court;  or,  after  seven  days'  imprisonment, 
he  may  be  released  by  order  of  the  court,  upon  filing  with  the  court  his 
personal  bond,  conditioned  thenceforth  to  comply  with  decrees  of  the 
court.  If  the  debtor  is  released  upon  his  personal  bond,  and  fails  to  10 
comply  with  said  decrees  within  sLxty  days  after  his  release  or  show  good  1 1 
cause  for  non-compliance,  he  may  again  be  cited  to  appear  and  be  punished  12 
as  for  a  further  contempt.  13 


Application 
by  debtor. 
1898,  549.  5  3. 
R.  L.  108,  §  82. 


Section  5.  A  judgment  debtor  may  apply  by  petition  for  the  benefit 
of  the  provisions  of  sections  one  to  three,  inclusive,  and  may  cause  a 
creditor  holding  a  judgment  against  him  for  the  necessaries  of  life  fur- 
nished to  himself  or  his  family  to  be  cited  to  appear  and  show  cause  why 


Ch.\p.  226.]  BAIL.  2441 

5  an  examination,  as  hereinbefore  provided,  shall  not  be  made;    and  the 

6  court  may,  after  a  hearing,  proceed  in  the  case  as  if  such  application  had 

7  been  made  by  a  creditor. 

1  Section  6.     If  a  creditor  proceeds  under  section  one,  other  processes  Suspension 

2  to  enforce  or  recover  on  the  judgment  upon  which  such  proceedings  are  proceedings. 

3  based,  and  proceedings  by  other  creditors  against  such  debtor  as  to  r.^l.  lel',  |  t's. 

4  wages,  shall  be  suspended,  except  as  provided  in  the  following  section, 

5  until  the  judgment  on  which  such  proceedings  under  section  one  are 

6  based  is  fully  satisfied;   but  this  section  shall  not  apply  to  the  attach- 

7  ment  of  property  of  the  debtor  other  than  wages,  or  the  le\'y  of  execution 

8  thereon. 

1  Section  7.     A  creditor  who   has  recovered  judgment  up>on  which  intm-enmg 

2  process  would  lie  under  section  one  against  a  debtor  against  whom  pro-  ^cond°  ^ 

3  ceedings  by  another  judgment  creditor  are  pending  under  the  preceding  5s98,'549.  §  a. 

4  sections  may,  upon  motion  in  said  proceedings  and  after  notice  to  all  ^gj^-  25!'  ^  **" 

5  parties  in  interest,  inquire  into  the  validity  and  amount  of  the  claim  of  l^^^\ 

6  any  judgment  creditor  on  which  a  decree  under  said  sections  has  been  1926;  2! 

7  entered.    Upon  hearing  such  motion,  the  court  may  order  any  creditor 

8  then  a  party  to  the  proceeding  to  account  to  the  court  for  amounts 

9  theretofore  paid  by  the  debtor  upon  such  judgment,  and  may  also,  after 

10  hearing,  revoke  or  modify  any  previous  decree,  and  order  that  payments 

11  thereafter  made  by  the  debtor  be  apportioned  between  creditors  then 

12  parties  to  the  proceedings. 

1  Section  8.     The  court  may  at  any  time,  upon  written  notice  to  the  Suspension  or 

2  parties  in  interest  or  their  attorneys  of  record,  revise,  modify  or  suspend  decree"  ° 

3  a  decree  made  under  the  preceding  sections,     isos,  &49, 1 5.     r.  l.  les,  §  ss. 

1  Section  9.     The  entry  fee  provided  under  section  foiu-  of  chapter  Costs. 

2  two  hundred  and  sixty-two,  and  the  fees  of  witnesses  and  officers  shall  k.  l!  les'.  I  s'e. 

3  be  allowed  to  the  creditor  as  costs,  unless  the  court  shall  otherwise  order,  '^^■*'  *'^'  ^  ^' 

4  and  no  other  costs  shall  be  allowed  to  either  party. 

1  Section  10.     A  constable  qualified  to  serve  civil  process  may  serve  Constable  may 

2  any  process  issued  under  this  chapter.  lois,  471,  |  7.  ^"""^^  process. 

1  Section  11.     Sections  one,  fifty-four,  fifty-six,  fifty-eight  and  seventy  Certain 

2  of  chapter  two  hundred  and  twenty-four  shall,  so  far  as  applicable,  apply  p^cedfug  chap- 

3  to  proceedings  under  this  chapter.  ter  appUcabie. 


CHAPTER    226 

BAIL. 


Sect. 

taking  bail. 

1.  Defendant  arrested  on  mesne   process 

may  give  bail,  etc. 

2.  Manner  of  taking  bail. 

3.  Officer  may  require  two  sureties,  etc. 


Sect. 

4.  Approval  of  bond. 

5.  Bond  to  bind  those  executing  it. 

0.  Bond,  filing,  transmission  on  appeal. 

7.  Obligation  of  bail. 

8.  Suit  on  bond. 


2442 


BAIL. 


[Ch.u>.  226. 


Sect. 

surrender  of  prixcipal. 
9.  Surrender  of  principal  in  court,  etc. 

10.  Commitment. 

11.  Discharge  by  death  of  principal. 

12.  Surrender  out  of  court. 
1.3.  Surrender  to  jailer. 

14.  Proceedings. 

15.  Same  subject. 

16.  Bail  to  pay  costs  on  scire  facias,  when. 

17.  Surrender  on  original  action. 


Sect. 

b.til  in  actions  before  inferior  courts. 

IS;  Bail  before  inferior  courts. 

19.  Surrender  of  principal  in  such  case. 

20.  Proceedings  upon  surrender. 

21.  Same  subject. 

22.  Fees  of  officer. 

SUPPORT   OF   PRINCIP.4.L. 

23.  Liability  of  plaintiff. 

24.  Liability  of  bail. 

25.  Liability  in  case  of  surrender. 


TAKINX,    BAIL. 


Section  1.     A  defendant  arrested  on  mesne  process  shall  be  released 
upon  giving  bail.    If  he  has  been  sentenced  to  imprisonment  on  a  charge 


Defendant 
arrested  on 
mesne  process 

baii^  etc*  of  f raiid  under  chapter  two  hundred  and  twenty-four,  the  giving  of  such 

a^s."  125, 1  ?'   bail  shall  not  discharge  him  from  such  imprisonment. 

p.  S.  163.  §  1.  E.  L.  169,  §  1.  10  Gray,  490.  206  Mass.  23. 


Manner  of 
taking  bail. 
R.  S.  91.  §  1. 
G.  S.  125,  §  2. 
P.  S.  103,  5  2. 
R.  L.  169,  §  2. 
2  Mass.  481. 
10  Mass.  20. 
12  Mass.  434. 


Section  2.     Bail  in  a  civil  action  shall  be  taken  by  giving  a  bond  to  1 

the  sheriff,  if  the  wTit  is  served  by  him  or  his  deputy,  otherwise  to  the  2 

officer  by  whom  the  WTit  is  served,  conditioned  that  the  defendant  shall  3 

appear  and  answer  to  the  plaintif?,  abide  the  final  judgment  of  the  court  4 

and  shall  not  avoid.  5 


12  Met.  564. 
4  Gray,  300. 


103  Mass.  398. 
113  Mass.  325. 


116  Mass.  133. 
119  Mass.  146. 


146  Mass.  58. 
233  Mass.  587. 


OflGcer  may 
require  two 
sureties,  etc. 
R.  S.  91,  §  2. 
1850,  199,  §  1. 
1852,  211. 
G.  S.  125,  §  3. 
P.  S.  163,  §  3. 
R.  L.  169,  §  3. 
9  Mass.  479. 


Section  3.     An  officer  shall  not  be  required  to  accept  a  bail  bond  1 

unless  ■with  at  least  two  sureties,  each  of  them  having  sufficient  property  2 

within  the  commonwealth ;  and  he  may  examine  on  oath,  to  be  adminis-  3 

tered  by  him,  the  persons  offered  as  sureties,  as  to  their  sufficiency.    If  he  4 

takes  a  bail  bond  with  only  one  surety,  he  shall  be  liable  to  the  plaintif?  5 

for  any  loss  sustained  by  the  insufficiency  of  the  bail,  although  the  surety  6 

was  actually  sufficient  when  taken.  7 


Section  4.    The  bond  may  be  approved  by  a  judge  of  a  court  of     1 


Approval 
of  bond. 

1S57, 141,  §  22.  record  or  a  master  In  chancery,  and,  when  so  approved,  the  sureties  shall     2 

18S0,  132,  §  1.      be    sufficient.  p.  S.  les,  §  4.  R.  L.  169,  §  4.  1917,  326,  §  2.  3 


Bond  to  bind         SECTION  5.    A  bail  boud  shall  bind  the  persons  executing  it,  although 

those  execut-  .  ^  •  e       \ 

ipeit.  taken  with  one  surety  only,  or  with  two  or  more  sureties  any  of  whom 


T»       Q     Q-l        C     O 

G.  s!  125.  §  5.    have  not  sufficient  property  within  this  commonwealth,  or  although  not    3 
R.  L.  169.  §"5.    approved  as  aforesaid.  2  Pick.  234.  2  Met.  490.  4 


Bond,  filing, 
transmission 
on  appeal. 
R.  S.  91.  §4. 
G.  S.  125,  §  6. 


Section  6.  The  bond  shall  be  returned  and  filed  with  the  writ,  and  1 
the  clerk  shall  note  on  the  WTit  that  a  bond  is  so  filed.  Upon  an  appeal,  2 
tlie  bond  shall  be  sent  with  the  other  papers  to  the  court  appealed  to.      3 


P.  S.  163,  §  6. 
R.  L.  169,  §  6. 


17  M.1SS.  591. 
2  Met.  490. 


9  Met.  564. 
103  Mass.  398. 


Obligation 
of  bail. 
1693-4.  1. 
1784,  10,  §  1. 
R.  S.  91,  §  5. 
G.  S.  125,  §  7. 
1881,  263,  §  4. 


Section  7.     In  case  of  the  avoidance  of  the  principal  and  a  return  1 

on  the  execution  that  he  has  not  been  found,  or  a  return  on  the  notice  2 

mentioned  in  section  nine  of  chapter  two  hundred  and  twenty-four  that  3 

after  diligent  search  by  the  oflScer  serving  the  notice  the  principal  has  4 


CsLiP.  226.]  BAIL.  2443 

5  not  been  found,  his  bail  shall  satisfy  the  judsjment,  with  interest  thereon  p.  s.  i63.  §  7. 

6  from  the  time  it  was  rendered,  unless  he  discharges  himself  by  siuren-  2*Mass''4'si7' 

7  dering  the  principal  before  final  judgment  against  him  on  the  writ  of  2\iir327?^' 

8  scire  facias,  or  by  other  sufficient  defence  in  that  suit.         n  Cush.  is.  ^s?,  sso. 

103  Mass.  398.  146  Mass,  331.  197  Mass.  94.  233  Ma.ss.  587. 

1  Section  8.     The  bail  bond  shall  be  so  far  a  matter  of  record  and  of  ?,vj,',°"  ^°^'^- 

2  the  nature  of  a  recognizance  that  the  court  in  which  the  judgment  against  H^.^'i"' 

3  the  principal  was  rendered,  upon  application  of  the  creditor  to  the  clerk  r.  s'gi,  §§o-8. 

4  thereof,  shall  issue  a  writ  of  scire  facias  thereon  in  the  name  of  the  creditor  §§  s-io. ' 

5  against  the  bail,  which,  without  setting  forth  the  bond,  shall  allege  that  HslJa' 

6  the  defendants  became  bail ;    but  no  action  shall  be  maintained  on  the  ^■Mass'^4'si  ®" 

7  writ  of  scire  facias  unless  it  is  served  on  the  bail  within  one  year  after  final  i'l,^'?^?,„^,3i- 

.  .....  *'  2  Pick.  281. 

8  judgment  against  the  principal. 

13  Pick.  339.  5  Grav,  ,397.  113  Mass.  325. 

2  Met.  490,  587.  103  Mass.  398.  197  Mass.  94. 

SURRENDER   OF  PRINCIPAL. 

1  Section  9.     The  bail  may  surrender  the  principal  in  the  court  in  which  surrender  of 

2  the  scire  facias  is  pending  at  any  time  before  final  judgment  therein  TO'v!'rt'.''e'tc!° 

3  against  them;  and,  upon  payment  of  costs  on  the  scire  facias  to  that  time,  iToaloi  7^  §  i. 

4  they  shall  be  discharged.  i784,  lo,  §  2. 

R.  S.  91.5  10.  P.  S.  Ifi3,  §  12.  R.  L.  109,  §  9.  117  Mass.  281. 

G.  S.  125,  §  12.  1884,  260.  7  Mass.  109,  101  Mass.  55. 

1  Section  10.     The  principal  so  surrendered  shall  be  committed  to  the  c_ommitment. 

2  jail  for  thirty  days  so  that  he  may  be  taken  on  execution,  unless  dis-  i7S47'i'o!''§V^" 

3  charged  as  provided  in  chapter  two  hundred  and  twenty-four.  §;  g;  jJs.Vis. 

p.  S.  163,  §  13.  R,  L.  169,  §  10.  197  Mass.  94, 

1  Section  11.     Upon  proof  of  death  of  the  principal  before  final  judg-  Discharge  by 

2  ment  on  the  scire  facias,  the  bail  shall  be  discharged,  upon  payment  pHndpaV 

3  of  costs  on  the  scire  facias  to  the  time  when  such  proof  is  made.  J^^^l!  ira,'  §  ii 

138  Mass,  384. 

1  Section  12.    The  bail  may,  at  any  time  before  final  judgment  against  Surrender  out 

2  them  on  a  writ  of  scire  facias,  exonerate  themselves  from  further  re-  isn,  lio. 

3  sponsibility  by  surrendering  their  principal  as  provided  in  the  four  fol-  o.'  s!  125,  §  li. 

4  lowing  sections.  p.  s.  103,  §  u.  r.  l,  109,  §  12. 

1  Section  13.     Such  surrender  may  be  made  to  the  jailer  in  the  county  Surrender 

2  wliere  the  principal  was  arrested  or  where  the  original  writ  against  the  isi?!  i46. 

3  principal  was  returnable,  who  shall  receive  and  hold  him  in  like  manner  §§  fa^ls. 

4  and  with  the  same  rights  as  if  he  had  been  committed  on  the  original  jsi^g'lo' 

5  writ.  P,  S.  163,§§15,  20.  R.  L.  169,  §13. 

1  Section  14.     The  jailer  shall  not  be  obliged  to  receive  a  person  so  Proceedings, 

2  surrendered,  unless  the  bail  deliver  to  him  a  copy  of  the  bail  bond,  attested  a  s!  i25,\  le. 

3  by  the  officer  who  took  it  or  by  the  clerk  in  whose  custody  it  may  be,  r.l/iuo.Vu. 

4  which  shall  be  a  sufficient  warrant  for  the  jailer. 

1  Section  15.     The  bail  shall,  within  fourteen  days  after  such  sur-  Sanie  subject. 

2  render,  deliver  to  the  jailer  a  copy  of  the  original  writ  or  process  whereby  u,  s.'9i.  §§  15, 

3  the  prisoner  was  arrested,  with  a  copy  of  the  return  endorsed  thereon,  a"s,  125,  §§i7. 

IS.  '        ' 


2444 


BAIL. 


[Ch.^.p.  226. 


p.  s.  163,  §§  17,  attested  by  the  officer  who  served  the  WTit  or  by  the  clerk  into  whose 
R.L.  ir,9. §  15.  office  it  is  returned,  and  they  shall  also  within  said  time  give  written 
fi^i1en,"94.  iioticc  to  the  plaintiff  or  his  attorney  of  the  time  when  and  the  place 
121  Mass.  400.    -jy-jiei-e  tlic  prisoner  was  so  committed. 


Bail  to  pay 
costs  on  scire 
facias,  when. 
1817,  146. 
R.S.  91,  §17. 
G.  S.  125,  §  19. 
P.  S.  163,  §  19. 
R.  L.  169,  §  16. 
11  Cush.  15. 


Section  16.     If  the  surrender  is  made  after  a  wTit  of  scire  facias  is  1 

issued  against  the  bail,  they  shall,  within  fourteen  days  after  the  sur-  2 

render,  pay  the  costs  of  suit  on  the  scire  facias  to  the  creditor  or  his  3 

attorney,  or  to  the  jailer  for  the  use  of  the  creditor;  but  if  the  writ  of  scire  4 

facias  has  not  been  served  on  the  bail,  they  shall  not  be  required  to  pay  5 

the  costs  thereon  until  twenty-four  hours  after  notice  of  the  issuing  of  6 

the  writ  and  demand  by  the  creditor  for  such  payment.  7 


OTiSnat^cti^n.  Section  17.  The  five  preceding  sections  shall  not  impair  the  right 
R.*s'9i''|i'9  o^  '^^'l  i"^  ^"^  cases  to  sm-render  their  principal  in  the  court  in  which  the 
p'l'ill'?^^'  original  action  is  pending,  before  final  judgment;  or,  after  judgment, 
R.  L.  169,  §  17.  to  surrender  him  to  the  officer  holding  the  execution,  at  any  time  before 
its  return. 


Bail  before  in- 
ferior courts. 
1803,  132,  §  1. 
R.  S.  91,  §  20. 
G.  S.  125,  §  22. 
P.  S.  103,  §  22. 
R.  L.  169,  §  IS. 
1917,  320. 


BAIL   IN    ACTIONS   BEFORE    INFERIOR   COURTS. 

Section  18.  If  bail  is  taken  in  an  action  before  a  district  court,  it 
may  issue  a  scire  facias  against  the  bail,  although  the  sum  of  the  debt 
and  costs  on  the  original  judgment  exceeds  the  amount  to  which  its 
jurisdiction  is  otherwise  limited;  and  the  rights  and  obligations  of  the 
bail  and  all  proceedings  as  to  the  surrender  of  the  principal  and  the  .action 
against  the  bail  shall  be  substantially  the  same  as  are  provided  relative 
to  bail  when  taken  in  actions  in  other  courts. 


pHnc^li^in^  Section  19.     When  bail  in  an  action  before  a  district  court  sur- 

1S03  Til'  render  their  principal  in  court,  either  during  the  pendency  of  the  original 

R  I'  91  '  action  or  of  the  scire  facias,  they  shall  secure  the  attendance  of  an  officer 

§§'  21. 22.  qualified  to  serve  legal  process  in  the  case  to  whom  the  principal  may 

§§23,24.'  be  committed.     Any  such  officer  seasonably  notified  and  requested  to 

§§li3,'24!  attend  for  such  purpose  shall  attend  and  shall  receive  and  take  charge 

wiV  326.  ^  ^^'  of  the  principal,  if  committed  to  his  custody  by  the  court.      194  Mass.  24. 


Proceedings  SECTION  20.     If  the  principal  is  surrendered  in  such  action,  an  entry     1 

render.  of  such  Surrender  shall  be  made  on  the  record  and  he  shall  be  forthwith    2 

g!  s!  125.  §  25.  committed  to  the  officer  in  attendance.        P.  s.  les,  §  2s.       r.  l.  log,  §  20.  3 


Same  subject. 
R.S.  91, 
§§  24,  25. 
G.  S.  125,  §  26. 
P.  S.  163,  §  26. 
R.  L.  169,  §  21. 


Section  21.     If  the  principal  is  surrendered  before  final  judgment  1 

in  the  original  action,  the  bail  shall  deliver  to  the  officer  a  copy  of  the  2 

original  writ,  with  the  return  endorsed  thereon,  attested  by  the  clerk  of  3 

the  court,  if  any,  otherwise  by  the  justice.    If  the  surrender  is  after  final  4 

judgment  in  the  original  action,  the  bail  shall  deliver  to  the  officer  a  copy  5 

of  the  entry  of  the  surrender,  attested  in  like  manner.    The  officer  shall  6 

deliver  the  copy  to  the  jailer  upon  committing  the  prisoner  to  his  custody ;  7 

and  such  copy  shall  be  a  sufficient  warrant  to  the  officer  and  to  the  jailer  8 

for  receiving,  committing  and  holding  the  prisoner.  9 


f803.°i32®§":       Section  22.     The  officer  shall  be  allowed  the  same  fees,  which  shall     1 
5-  §•  ?i'J  2§_    be  paid  by  the  bail,  as  upon  the  arrest  and  commitment  of  a  defendant    2 


G.  S.  125,  §  27. 
P.S.  103,  §27.     on 


mesne  process. 


R.  L.  169,  §  22. 


Ch-^p.  227.] 


ABSENT  DEFEND.tNTS,    ETC. 


2445 


SUPPORT    OF   PRINCIPAL. 

1  Section  23.     If  a  principal,  surrendered  by  his  bail  and  committed  to  Liability  of 

2  jail,  claims  support  as  a  pauper,  the  jailer  may  requhe  the  plaintiff  or  i82r,'i2'4. 

3  his  attorney  in  the  action  to  give  security  or  to  advance  the  money  for  §■  g  ^osS^s 

4  support  of  the  defendant  in  like  manner  as  if  the  commitment  had  been  ^  s.  i63,  §  2| 

5  made  by  an  officer.    If  the  plaintiff  fails  so  to  do  for  twenty-four  hom-s 

6  after  being  so  required,  the  jailer  may  discharge  the  defendant. 

1  Section  24.     The  jailer  may,  at  the  time  of  surrender,  demand  of  liability 

2  the  bail  the  advance  of  money  for  support  of  the  principal,  or  secm-ity  is24, 124. 

3  therefor,  instead  of  demanding  the  same  of  the  plaintiff;  and  if  the  bail,  g'.  s.  125,  §  29. 

4  for  twenty-four  hours  after  such  demand,  fail  to  gi\e  such  security  or  r.l.\69',|24'. 

5  to  advance  the  money  for  such  support,  the  jailer  may  discharge  him; 

6  and  the  bail  and  the  principal  shall  thereupon  continue  liable  to  the 

7  plaintiff'  in  all  respects  as  if  the  surrender  had  not  been  made. 

1  Section  25.     If  such  demand  is  made  upon  the  baO,  they  shall  be  Liability  in 

2  liable  for  the  support  of  the  principal  for  seven  days  after  they  have  render.""^' 

3  given  notice  of  the  surrender  to  the  plaintiff  or  to  his  attorney  in  the  R.'s.'gl,**" 

4  action.    The  plaintiff  shall  be  liable  for  the  support  of  the  defendant  ^^\% 

5  after  the  exphation  of  said  seven  days;   and  if  he  fails  to  advance  the  |>5^°',5l' 

6  money  or  to  give  security  therefor  as  before  provided,  at  or  before  the  §§3o.  sl 

7  expiration  of  said  time,  the  jailer  may  discharge  the  defendant.  .   .     ,      . 

REFERENCES. 

§    4.    Fees,  Chap.  262,  §  23. 

§  22.    The  fees  are  one  dollar  for  commitment,  and  one  dollar  for  copy,  Chap. 
262,  §  14. 


CHAPTER    227. 

PROCEEDINGS  AGAINST  ABSENT  DEFENDANTS  AND  UPON  INSUF- 
FICIENT SERVICE. 


Sect. 

1.  Actions  against  absent  defendants. 

2.  Cross  actions. 

3.  Service  of  writ. 

4.  Proceedings. 

5.  Certain   individuals,   etc.,   to    appoint 

agents  for  service  of  process.     Pen- 
alty. 

6.  Dismissal  of  action,  when. 

7.  Notice. 
S.  Default. 


Sect. 
9.  Bond. 

10.  Notice  in  district  courts. 

11.  Execution  levied  on  land. 

12.  Judgment  in  real  action. 

13.  Actions  of  tort. 

14.  Actions  of  contract. 

15.  Prosecution  against  those  served. 

action. 

16.  Absence  of  one  of  several  tenants, 

17.  Mixed  actions. 


New 


1  Section  1.     A  personal  action  shall  not  be  maintained  against  a  Actions  against 

2  person  not  an  inliabitant  of  the  commonwealth  unless  he  or  his  agent  fe''ndants^ 

3  appointed  under  section  five  has  been  served  with  process  in  the  com-  qI' 126^*1' 

4  monwealth,  or  unless  an  effectual  attaclmient  of  his  property  within  the  ^  |-  f^*^  |  }• 

5  commonwealth  has  been  made  upon  the  original  writ,  and  in  case  of  such  wos,'  528,'  §  1. 


2446 


ABSENT  DEFEND.VNTS,   ETC. 


[Ch.\p.  227. 


3  Cush.  578. 
5  Cush.  52. 

10  Cush.   1S3. 
3  Grav.  608. 

11  Allen,  134. 


attachment  without  such  semce,  the  judgment  shall  be  valid  only  to 
secure  the  application  of  the  property  so  attached  to  the  satisfaction  of 

the  judgment.  lOO  Mass.  217.  ISl  Mass.  359. 

170  Mass.  538.  206  Mass.  39.  224  Mass.  14.  193. 


144  Mass.  10. 
147  Mass.  530. 
150  Mass.  550. 


176  Mass.  48, 
198  Mass.  82. 


206  Mass.  39. 

215  Mass.  341. 

220  Mass.  285. 


2.35  Mass.  471. 
210  U.  S.  82. 


Cross  actions. 
1823,  118. 
R.  S.  90, 
§§  49,  50. 
G.  S.  126, 
§§  2,  3. 
P.  S.  164, 
l§  2.  3. 

R.  L.  170.  §  2. 
7  Mass.  140. 
1  Met.  80. 
170  Mass.  538. 
175  Mass.  369. 
185  Mass.  49. 
215  Mass.  403. 


Section  2.  If  an  action  is  brought  by  a  person  not  an  inhabitant 
of  the  commonwealth  or  who  cannot  be  found  herein  to  be  served  with 
process,  he  shall  be  held  to  answer  to  any  action  brought  against  him 
here  by  the  defendant  in  the  former  action,  if  the  demands  are  of  such 
a  nature  that  the  judgment  or  execution  in  the  one  case  may  be  set  off 
against  the  judgment  or  execution  in  the  other.  If  there  are  several 
defendants  in  the  original  action,  each  of  them  may  bring  such  cross 
action  against  the  original  plaintiff  and  may  be  allowed  to  set  off  his  8 
judgment  against  that  which  may  be  recovered  against  him  and  his  9 
co-defendants  in  like  manner  as  if  the  latter  judgment  had  been  against  10 
him  alone.  "  11 


Section  3.     The  writ  in  such  cross  action  mav  be  served  on  the  at-     1 


Service  of 
writ. 

G  I'  126^^1'  torney  of  record  for  the  plaintiff  in  the  original  action,  and  such  service  2 

p.'  s.  164,'  §  4.  shall  be  as  valid  and  effectual  as  if  made  on  the  party  himself  in  the  3 

R.  L.  170,  §  3.  .   .  . 

168  Mass.  105.  COmmOllWCalth.                                                         170  Mass.  538.  4 


Proceedings. 
R.  S.  90,  §  52; 
92,  §  16. 
G.  S.  126.  §  5. 
P.  S.  164,  §  5. 
R.  L.  170.  §  4. 
185  Mass.  49. 
225  Mass.  512. 


Section  4.     The  court  in  which  either  of  the  actions  is  pending  may  1 

order  continuances  to  enable  the  absent  party  to  defend  the  action  2 

brought  against  him,  and  to  enable  either  party  to  set  off  his  judgment  3 

or  execution  against  that  which  is  recovered  against  him,  but  the  actions  4 

shall  not  be  unreasonably  delayed  by  the  neglect  or  default  of  either  5 

party.     The  provisions  of  the  following  sections,  relative  to  actions  6 

against  persons  absent  from  the  commonwealth,  shall  not  apply  to  a  7 

cross  action  brought  under  the  two  preceding  sections.  8 


inSvidliais,  Section  5.     Every  individual  not  an  inhabitant  of  the  common- 

a'ents''for"'°'°'  ^'^alth  and  e^'cry  partnership  composed  of  persons  not  such  inliabitants, 

service  of 

process. 

Penalty. 

S§i,'2.   '         without  a  usual  place  of  business  here,  in  tlie  construction,  erection, 

95  U.  S.  714, 


having  a  usual  place  of  business  in  the  commonwealth,  temporarily  or 
permanently,  or  engaged  here,  temporarily  or  permanently,  and  with  or 


alteration  or  repair  of  a  building,  bridge,  railroad,  railway,  or  structure 
of  any  kind,  shall,  before  doing  business  in  the  commonwealth,  appoint 
in  writing  a  person  who  is  a  citizen  and  resident  thereof  to  be  his  or  its 
true  and  lawful  attorney  upon  whom  all  lawful  processes  against  such 
individual  or  partnership  may  be  served  with  like  effect  as  if  served  on  10 
such  person  or  partnership;  and  said  writing  or  power  of  attorney  shall  11 
contain  an  agreement  on  the  part  of  tlie  maker  that  the  service  of  any  12 
lawful  process  on  said  attorney  shall  be  of  the  same  force  and  validity  as  13 
service  on  such  individual  or  partnership.  The  power  of  attorney  shall  14 
be  filed  in  the  office  of  the  state  secretary,  and  copies  certified  by  him  15 
shall  be  taken  as  sufficient  evidence  thereof.  Such  agency  shall  be  con-  16 
tinned  so  long  as  such  individual  or  partnership  does  business  as  afore-  17 
said  in  the  commonwealth,  and  the  power  of  attorney  shall  not  be  re-  18 
voked  mitil  a  similar  power  is  given  to  another  citizen  and  resident  of  19 
the  commonwealth  and  filed  as  aforesaid.     Every  such  individual  or  20 


Chap.  227.]  absent  defend-^tts,  etc.  2447 

21  partnersliip  neglecting  or  refusing  to  appoint  such  attorney  shall  be 

22  notified  by  the  state  secretary,  upon  information  and  request  by  any 

23  citizen  of  the  commonwealth,  of  the  requirements  of  this  section;   and 

24  every  person  who  acts  within  the  commonwealth  as  agent  of  any  such 

25  individual  or  partnership  continuing  to  neglect  or  refuse,  after  receipt 

26  of  such  notice  from  the  state  secretary,  to  appoint  such  attorney,  shall 

27  forfeit  ten  dollars,  to  the  use  of  the  commonwealth,  for  each  day  during 

28  which  such  person  has  so  acted  after  such  neglect  or  refusal. 

1  Section  6.     If  real  property  of  a  non-resident  is  attached  and  no  Dismissal  of 

2  personal  service  is  made  upon  him,  the  action  shall  be  dismissed  unless  i8m,"26s^''°' 

3  notice  thereof  is  given,  in  such  manner  as  the  court  orders,  within  one  lio^Mass.'  1.^' 

4  year  after  the  entry  of  the  action. 

1  Section  7.     If  a  defendant  in  an  action  in  the  supreme  judicial  or  Notice. 

2  superior  court  is  absent  from  the  commonwealth  or  his  residence  is  r*'|;  gof  §  53; 

3  unknown  to  the  officer  serving  the  writ,  and  no  personal  service  has  g.'I.  ^20.  §6. 

4  been  made  on  him  or  his  agent  appointed  under  section  five,  or  if  the  ^gg|  ^|*'  ^  '^■ 

5  service  of  a  writ  is  defective  or  insufficient  by  reason  of  a  mistake  of  the  R  l'.  ito,  §  6. 

6  plaintiff  or  officer  as  to  where  or  with  whom  the  summons  or  copy  ought  §§  i.'z. 

7  to  have  been  left,  the  court,  upon  suggestion  thereof  by  the  plaintiff,  9  ci'ray.'sii.' 

8  shall  order  tlie  action  to  be  continued  until  notice  of  the  action  is  given  4°Aiieny'94!'*' 

9  in  such  manner  as  it  may  order.    If  the  property  of  an  absent  defendant  f  i^Ailen.^iM. 

10  has  been  attached  and  the  residence  of  such  defendant  is  known  to  the  }2?  M"^'- oIq- 

131  Mass.  0.59. 

11  plaintiff  and  no  legal  service  can  be  made  upon  him  within  the  common-  }|*m^=-  i9,- 

'  ,°.  ,  '  .  IS8  Mass.  80. 

12  wealth,  except  by  publication,  the  court  may  order  personal  service  to  iQSMass.  82. 

13  be  made  on  him  in  such  manner  as  it  may  direct  and,  upon  proof  that  224Mas3:  li, 

14  service  has  been  so  made,  such  defendant  shall  be  held  to  answer  to  the  23b'Ma83.  i76. 

15  action.     If  the  defendant  does  not  appear,  the  court  may  order  the 

16  action  continued  and  further  notice  given  to  him  in  such  manner  as  it 

17  may  direct. 

1  Section  8.     If,  after  such  notice,  the  defendant  does  not  appear  Default. 

2  within  twenty-one  days  after  the  day  specified  tJierefor,  a  default  shall  r^^|;92.§3. 

3  be  entered  and  judgment  rendered  against  him  as  provided  in  section  p  |;  Jf^;  |  7; 

4  one.  18S5,  334,  §  S.  n.  L.  ito.  §  7.  144  Mass.  10.  20s  Mass.  39. 

1  Section  9.     If  judgment  in  a  personal  action  is  rendered  under  the  Bond. 

2  preceding  section  upon  the  default  of  a  defendant  who  is  absent  from  1797^50!^' 1.^' 

3  the  commonwealth  or  whose  residence  is  unknown,  the  plaintiff  shall  |j-  g-  ^'^■ 

4  not  take  out  execution  thereon  within  one  year  thereafter,  unless  he  Psf/?®' 

5  files  with  the  clerk  of  the  court  a  bond  payable  to  the  defendant  with  p.  s.'im, 

6  one  or  more  sureties,  approved  by  the  clerk  or,  upon  appeal  from  his  r.  l  ito.  §  s. 

7  decision  as  to  the  sufficiency  of  the  sureties,  by  a  justice  of  the  court  13  Gray.  1.' 

8  rendering  the  judgment,  in  a  sum  equal  to  double  the  amount  recovered,  \ll  m^;  ff^' 

9  conditioned  to  repay  the  amount  so  recovered  if  the  judgment  is  re-  ^-^  ^'''^^-  ^"• 

10  versed,  or  so  much  of  the  amount  as  shall  be  recovered  upon  a  review 

11  brought  by  the  original  defendant  within  one  year  after  the  original 

12  judgment. 

1  Section  10.     If  an  attachment  has  been  made  upon  a  writ  return-  Notice  in 

2  able  to  a  district  court  and  the  defendant  is  absent  from  the  common-  i83s',''i2T,"r2. 


2448 


ABSENT  DEFEND.VNTS,   ETC. 


[CH-^P.  227. 


wealth,  so  that  no  service  can  be  made  on  him  and  he  has  no  agent  or 
attorney  residing  in  the  commonwealth,  the  court  may  order  the  action 
to  be  continued  until  notice  thereof  is  given  to  the  defendant  in  such 
manner  as  it  may  direct.  If,  upon  proof  that  such  notice  has  been  given, 
i|i|' |5''>  H29.  -tlie  defendant  fails  to  appear  on  the  return  day  of  such  notice,  judgment 

1920!  i. 

4  Allen,  94. 

224  Mass.  14. 


G.  S.  120.  §  8. 
P.  S.  154,  §  11; 
155.  §  19. 

1893,  396.  §  18. 

1894,  431. 

R.  L.  170,  §  9. 
1917,  326. 


may  be  entered  for  the  plaintiff.     Thereupon  execution  may  issue  for 
the  plaintiff,  upon  his  giving  bond  to  the  defendant  with  sufficient  surety 
in  double  the  sum  for  which  execution  is  to  be  issued,  conditioned  to 
repay  the  amount  recovered,  if,  witliin  one  jear  from  the  judgment,  pro-  11 
ceedings  are  begun  upon  wliich  it  is  reA'ersed.  12 


3 
4 
5 
6 
7 
8 
9 
10 


Section  11.  If  the  execution  in  an  action  under  this  chapter,  except 
as  otherwise  provided,  is  levied  on  land,  no  alienation  thereof  by  the 
original  plaintiff  shall  prevent  the  defendant  from  retaking  the  same  or 
as  much  thereof  as  may  be  necessary  to  satisfy  the  judgment  which  he 
R.  L.  170, 1  lo!  recovers  on  review,  if  the  ^Tit  of  review  is  sued  out  within  one  year  after 
the  original  judgment. 


Execution 
levied  on 
land. 

1700-1,  20.  §  3. 
1797,  SO,  §  5. 
R.  S.  92.  §  S. 
G.  S.  126,  §  10. 


Judgment  in 
real  action. 
R.  S.  92.  §  9. 
G.  S.  126,  §  11, 
P.  S.  164.  §  11, 
R.  L.  170,  %  11, 


Section  12.     If  the  original  judgment  was  for  seisin  of  the  land  de-  1 

manded  in  a  real  action,  the  ^^•rit  of  seisin  may  be  issued  in  favor  of  the  2 

demandant  without  his  giving  bond;   and  if  the  judgment  is  reversed  in  3 

whole  or  in  part  upon  a  review,  whether  sued  out  within  the  year  or  after-  4 

ward,  the  original  tenant  may  have  restitution  of  the  land  as  upon  a  5 

reversal  on  a  writ  of  error.  6 


Section  13.     An  action  of  tort  against  several  defendants,  any  one 


Actions  of  tort. 

1797.  50.  . 

G  i'  ileS^ii  ^^  whom  is  absent  from  the  commonwealth  at  the  time  of  the  service  of 
p.'  s.  164,'  1 12.  the  WTit,  shall  be  conducted  with  regard  to  him  relative  to  the  service 
'of  the  ■OT-it,  judgment,  review  thereof  and  execution  as  if  he  were  the 
sole  defendant. 


TOntra?t°^  Section  14.     An  action  of  contract  against  several  defendants,  any 

R^s'  9°'    11    °^^  "^^  whom  is  in  the  commonwealth  and  any  other  of  whom  is  absent, 
G.  s!  126,  §  13.  in  which  the  plaintiff  recovers  judgment  shall  not  be  subject  to  the  pro- 
R.  L.  170,  §  13!  visions  of  this  chapter  relative  to  review,  gi^'ing  bond  and  alienation  of 
land;    but  judgment  shall  not  be  rendered  against  any  such  absent  de- 
fendant, unless  under  such  circumstances  as  would  entitle  the  plaintiff 
to  judgment  if  the  absent  party  were  the  sole  defendant. 


Prosecution 
against  those 
served. 
New  action. 
R.  S.  92, 
l§  12,  13. 
G.  S.  126, 
If  14.  15. 
P.  S.  164, 
§§  14,  15. 
R.  L.  170.  §  14. 
5  Mass.  193. 
8  Mass.  423. 
13  Mass.  148. 
13  Met.  256. 
16  Gray,  114. 


Section  15.     An  action  of  contract  against  several  defendants  in  1 

which  legal  service  is  not  made  upon  all,. either  by  attachment  or  other-  2 

wise,  by  reason  of  their  absence  from  the  commonwealth  or  for  other  3 

sufficient  cause,  may  be  prosecuted  against  those  who  are  duly  served  4 

with  process,  without  further  proceedings  against  the  others.    If  judg-  5 

ment  so  rendered  against  one  or  more  of  several  joint  contractors  re-  6 

mains  unsatisfied,  an  action  on  the  same  contract  may  be  maintained  7 

against  any  of  the  other  joint  contractors  in  like  manner  as  if  the  contract  8 

had  been  joint  and  several.               lo  .■uien,  4S5.                 147  Mass.  201.  9 


Absence  of  SECTION  16.     Real  actions  against  several  tenants,  anv  one  of  whom  1 

one  of  several  ,  i    i         i      1 1   i  i        i'     *  i  •  c\ 

tenants,  etc.  is  abscut  from  the  commonwealth,  shall  be  conducted  relative  to  him  as  2 

R.  S.  92.  §  14.  ' 


g'.  s!  126,  §  16.  if  he  were  the  sole  defendant. 


p.  S.  164,  §  16. 


R.  L.  170,  §  15. 


Chap.  228.] 


SrKVIVAL   OF   ACTIONS,    DISABILITIES,    ETC. 


2449 


1  Section  17. 

2  bond  and  review 


The  provisions  of  this  chapter  relative  to  judgment,  ^''g"'g5'^'i°j"f- 

'  in  actions  of  tort  shall  applv  to  a  mixed  action  if  the  g.  s.  lib.  §  iV. 

PS  Hi4  s  17 

3  defendant  or  one  of  se^•e^al  defendants  is  absent  from  the  commonwealth,  r.  l.  ud.  §  i&. 

4  but,  as  to  the  service  of  the  writ  and  notice  to  the  defendant,  it  shall  be 

5  conducted  as  a  real  action. 


CHAPTER    228. 

SURVIVAL  OF  ACTIONS  AND  DEATH  AND  DISABILITIES  OF  PARTIES. 

Sect. 


SURVIVAL    OF    ACTIONS. 

1.  Actions  which  survive. 

PERSONAL    ACTIONS. 

2.  Death  of  party  in  suit  against  officer 

not  to  abate  action. 

3.  Judgment   for   and    against    executor, 

etc.,  of  officer. 

4.  Death  of  sole  plaintiff  or  defendant. 

5.  Citation. 

6.  Nonsuit  or  default. 

7.  Death  of  joint  plaintiff,  etc. 

REAL    AND    MIXED    ACTIONS. 

8.  Prosecution  of   real   and  mixed  action 

by  devisee  or  heir. 


Sect. 
9.  Death  of  one  of  several  demandants. 

10.  Prosecution  by  survivor. 

11.  Death  of  tenant. 

SUITS    IN    EQUITY. 

12.  Death  of  party  to  suit  in  equity. 


INSANITY. 


13.  Insanitj'. 


REMOVAL,   DEATH,   ETC.,  OF  PUBLIC  OFFICER, 
ETC. 

14.  Removal,  death,  etc.,  of  public  officer, 
etc. 


SURVIVAL   OF   ACTIONS. 

1  Section  1.     In  addition  to  the  actions  which  survive  by  the  common  Actios  which 

2  law,  the  following  shall  survive:    actions  of  replevin,  tort  for  assault,  isos'.'gg.  §2. 

3  battery,  imprisonment  or  otlier  damage  to  the  person,  for  goods  taken  Jsil;  112!  ^  ^" 

4  and  carried  away  or  con\erted,  or  for  damage  to  real  or  personal  prop-  ^'^^■f\  ^qq. 

5  erty,  and  actions  against  sheriffs  for  the  misconduct  or  negligence  of  93.  §  I-   ^    ' 

„       ,  1  1      •       1  •  1S42, 89,  §  1. 

6  themselves  or  their  deputies. 


G.  S.  17,  §  58; 
127,  §  1. 
P.  .S.  25,  §  10; 
165,  §  1. 
R.  L.  171.  §  1. 
7  Mass.  393. 
1  Pick.  71. 
19  Pick.  47. 


4  Gush.  408. 

5  Gush.  543.544. 
9  Gush.  10S.47S. 
14  Gray,  183. 

11  Allen,  34. 
106  Mass.  143. 
115  Mass.  346,552. 
121  Mass.  550. 


123  Mass.  254. 
125  Mass.  166. 
132  Mass.  359. 
143  Mass.  280, 301. 
147  Mass.  471. 
155  Mass.  176. 
173  Mass.  212. 
179  Mass.  583. 


181  Mass.  430. 
188  Mass.  371,  515. 
197  Mass.  474. 
209  Mass.  278. 

215  Mass.  657. 

216  M.ass.  30,  160. 
222  Mass.  418. 
225  Mass.  599. 


PERSONAL  ACTIONS. 


1  Section  2.     An  action  of  replevin  or  tort  by  or  against  an  officer  Death  of  party 

2  for  personal  property  attached  by  him  and  claimed  or  taken  by  another  offfcernot't'o* 

3  person  shall  not  be  abated  by  the  death  of  any  party,  but  may  be  pros-  r'^  sf9o'|'§°96. 

4  ecuted  by  or  against  his  executor  or  administrator. 


G.  S.  127,  §  2. 


P.  S.  165,  §  2. 


R.  L.  171, 


1  Section  3.     If  judgment  in  such  case  is  rendered  for  the  executor  or  judgment  for 

2  administrator  of  the  officer,  the  property  or  money  recovered  shall  be  eM[.uror,"etc., 

3  disposed  of  in  the  same  manner  as  it  ought  to  have  been  by  the  officer  r,s!'9o,§§97, 

4  if  he  had  recovered  the  same;   but  if  judgment  is  rendered  against  such  ^-g  ^^i 

5  executor  or  administrator,  the  property  shall  be  returned  or  delivered  §§  3.  4. 


2450 


SURVrVAL  OF   ACTIONS,   DISABILITIES,   ETC. 


[Chap.  228. 


«  3  4^^'  o""  *'^^  damages  recovered  shall  be  paid  in  full  by  him,  if  there  is  sufEcient    6 

R.  L.  iVi,  §  4.    property  therefor,  although  the  estate  of  the  deceased  is  insolvent.  7 ' 


Death  of  sole 
plaintiff  or 
defendant. 
1727,  6,  §§  1,  2. 
1727-S,  12,  §  1. 
17S3,  32,  §  10; 
59,  §  1. 
1834,  86. 
R.S,93,  §§  1-3. 
G.  S.  127, 
H5-7. 
P.  S.  165, 
§§5-7. 

R.  L.  171,  §  5. 
133  Mass.  409. 
195  Mass.  242. 
225  Mass.  422. 


Section  4.     In  a  personal  action  the  cause  of  which  survives,  if  there  1 

is  only  one  plaintiff  or  one  defendant  and  he  dies  after  the  commence-  2 

ment  of  the  action  and  before  final  judgment,  the  action  may  proceed  3 

and  be  prosecuted  by  or  against  his  executor  or  administrator,  and  if  4 

the  action,  or  an  appeal  therein,  has  not  been  entered  prior  to  his  death,  5 

it  may  be  entered  thereafter.     The  death  shall  be  suggested  on  the  6 

record,  and  the  executor  or  administrator  may,  within  such  time  as  the  7 

court  shall  allow,  appear  and  prosecute  or  defend  the  action,  Mhich  8 

shall  thenceforth  be  conducted  in  the  same  manner  as  if  it  had  been  9 

originally  commenced  by  or  against  the  same  executor  or  administrator.  10 

If  the  executor  or  administrator  does  not  voluntarily  appear,  the  sur-  11 

viving  party  may  take  out  a  citation  from  the  court  requiring  the  exec-  12 

utor  or  administrator  to  appear  and  take  upon  himself  the  prosecution  13 

or  defence  of  the  action.  14 


Citation. 
1783,  59,  §  1. 
R.  S.  93,  §  4. 
G.  S.  127,  §  S. 
1878,  200. 
P.  S.  163, 
§§8,9. 

R.  L.  171.  §  6, 
1919,  333,  §  34. 


Section  5.     Such  citation  shall  be  returnable  at  such  time  as  the  1 

court  may  order  and  shall  be  served  fourteen  days  at  least  before  the  2 

return  day;   but  it  shall  not  issue  after  the  expiration  of  one  year  from  3 

the  time  such  executor  or  administrator  has  gi\'en  bond,  if  he  has  given  4 

the  notice  of  his  appointment  as  required  by  law.  5 

1920,  2.  13  Allen,  221. 


Section  6.     If  the  executor  or  administrator  does  not  appear  on  the 


Nonsuit  or 
default. 

1727-S,' i2^§  1.  return  of  the  citation  or  witliin  such  further  time  as  the  court  allows,  he 
R^s'gs'lfsii'  s^i'i^ll  '-"^  nonsuited  or  defaulted  and  judgment  rendered  against  him  in 
G- 1- 127,  like  manner  as  if  the  action  had  been  commenced  by  or  against  him  in 
p.  s.' 165,  §§  10,  his  said  capacity,  except  that  he  shall  not  be  personally  liable  for  costs; 
R.L.  171, § 7.  but  the  estate  of  the  deceased  in  his  hands  shall  be  liable  for  the  costs, 
136  Mass.  249.    ^^  ^^.^jj  ^^  j^^  ^j^^  ^j^j^^  ^^  clamages  recovered. 


Death  of  joint 

plaintiff,  ete. 

R.  S.  93,  §§  12, 

13. 

G.S.  127,  §§11, 

12. 

P.  S.  165,  §§  12, 

13. 

R.  L.  171,  §  8. 

4  Pick.  308. 

9  Pick.  528. 


Section  7.     If  any  of  several  plaintiffs  or  defendants  in  a  personal  1 

action,   the  cause  of  which  survives,  dies  before  final  judgment,  the  2 

action  may  be  prosecuted  by  the  sm-viving  plaintiff  or  against  the  sur-  3 

viving  defendant,  as  the  case  may  be.    If  all  the  plaintiffs  or  defendants  4 

die,  the  action  may  be  prosecuted  or  defended  by  or  against  the  executor  5 

or  administrator  of  the  last  surviving  plaintiff  or  defendant,  respectively.  6 


119  Mass.  361. 
133  Mass.  409. 


166  Mass.  4G6. 
16S  Mass.  415. 


195  Mass.  242 


Prosecution  of 
real  and  mixed 
action  by  dev- 
isee or  heir. 
1826,  70,  §  1. 
R.  S.  93,  §  14; 
101,  §  12. 
1851,  233,  §  72. 
1852.312,  §  55. 
G.S.  127,  §  13; 
134, §  11. 
P.  S.  165,  §  14; 
173,  §  n. 


REAL   AND   MIXED   ACTIONS. 

Section  8.  If,  in  a  real  or  mixed  action,  the  demandant  dies  before 
final  judgment,  his  heir  or  devisee  of  the  land  demanded  or  of  the  right 
of  action  may,  within  such  time  as  the  court  allows,  appear  and  prose- 
cute the  action  in  the  same  manner  as  if  commenced  by  him.  If  the 
first  estate  in  possession  under  a  devise  is  not  a  fee  simple,  the  devisee 
of  the  first  freehold  estate  in  possession  may  appear  and  prosecute,  and 
the  judgment,  if  in  his  favor,  shall  be  conformed  to  his  title. 

9; 


R.L.  171, 
179,  §  11. 
17  Pick.  103. 
10  Met.  294. 


12  Met.  501. 
1  Cush.  395.  . 
8  Gray,  154. 
12  Gray,  283. 


13  Gray,  272. 

136  Mass.  126. 

152  Mass.  257. 


Ch.vp.  228.]  siTtvnaL  of  actions,  disabilities,  etc.  2451 

1  Section  9.     If  any  of  several  demandants  dies  before  final  judgment,  °«^th  °'  °°<= 

2  his  heir  or  devisee  shall  be  admitted,  upon  motion,  to  prosecute  the  demandants. 

3  action  with  the  survivors,  in  the  same  manner  as  if  he  had  been  originally  r."s.'93,'  §  is. 

4  a  party  thereto.  g.  s.  127,  §  u.  p.  s.  les,  §  15. 

R.  L.  171,  §  10.  10  Mass.  179.  11  Mass.  56.  155  Mass.  461. 

1  Section  10.     If  the  interest  of  the  deceased  party  passes  to  the  sur-  rrosccution  by 

2  viving  demandants,  or  if  there  is  no  motion  for  the  admission  of  an  heir  isSi'.'fo.'  §  i. 

3  or  devisee  at  the  sitting  when  the  death  of  the  deceased  party  is  sug-  §■  |;  127,^5^15. 

4  gested  or  within  such  further  time  as  the  court  allows,  the  surviving  RL\n  Vu 

5  demandants  may  prosecute  the  action  for  so  much  of  the  land  in  question 

6  as  they  may  then  claim. 

1  Section  11.     If  the  tenant  dies  before  final  judgment,  his  heir  or  DeatKof 

2  devisee  of  the  land  demanded  may,  within  such  time  as  the  court  iSto.  §  2. 

3  allows,  appear  and  defend  the  action,  which  shall  be  conducted  as  if  fdi^'ui^  ^^' 

4  commenced  against  him.     If  the  heir  or  devisee  does  not  voluntarily  Q^^-fo*' 

5  appear,  the  court  before  whom  the  action  is  pending  shall,  upon  the  « 10.  i^l 

6  application  of  the  demandant,  summon  such  heir  or  de\isee  to  appear  p. s._i65,§§i7, 

7  and  defend  the  action.     If  any  of  several  tenants  in  such  action  dies  R.L.'ih,  §  12: 

8  before  final  judgment,  the  action  may  be  prosecuted  against  the  sur-  2^Mal8'.  479. 

9  \'i\'ing  tenants  for  so  much  of  the  land  as  they  liold  or  claim.  i9^Pick.^243. 

suits  in  equity. 

1  Section  12.     If  a  party  to  a  suit  in  ecjuity  dies  and  the  cause  by  the  Death  of  party 

2  rules  of  equity  may  be  revived  against  or  in  favor  of  an  executor,  ad-  is65!42.^'^""^' 

3  ministrator,  heir,  devisee  or  other  person,  such  representative  may,  in  R.L.m'.Vi?. 

4  lieu  of  proceedings  to  revive  the  same,  appear  or  be  summoned  to  prose-  JlsSvfii^ile 

5  cute  or  defend  in  like  manner  as  in  an  action  at  law.         2.33  Mass.  62.  166  Mass.  547. 

insanity. 

1  Section  13.     If,  during  the  pendency  of  an  action  or  suit,  any  party  insanity. 

2  becomes  insane,  it  may  be  prosecuted  or  defended  by  his  guardian  in  §!  i:  ihfih. 

3  like  manner  as  if  it  had  been  commenced  after  the  appointment  of  the  r  l  m'|i| 

4  guardian,  or  the  court  may  appoint  a  guardian  for  the  action,  as  the  i^ptc'r43'i'^" 

5  case  may  require.  s  .4iien,  311. 

REMOVAL,    death,    ETC.,    OF    PUBLIC    OFFICER,    ETC. 

1  Section  14.     An  action  on  a  note,  bond,  contract  or  other  liability  Removal, 

2  made  to  or  with  any  public  officer  or  trustee  appointed  under  a  statute  of  p'ubilc"" 

3  may,  after  his  removal,  resignation  or  death,  be  commenced  or,  if  pend-  inf^'it.'^' 

4  ing,  may  be  prosecuted  by  his  successor,  as  it  might  have  been  by  the  ^sf  23^^00' 

5  person  with  whom  the  contract  was  made.  §  25.     ' 

G.  S.  127,  §  24.  2  Mass.  440.  6  Gush.  229. 

P.  S.  165.  §  26.  12  Mass.  575.  236  Mass.  336. 

R.  L.  171,  §  19.  2  Met.  47. 

REFERENCES. 

As  to  survival  of  petition  for  damages  for  taking  by  eminent  domain,  Chap.  79,  §  21. 

Same  as  to  petition  to  abate  betterment,  Chap.  80,  §  8. 

Same  as  to  recognizance  for  debt,  Chap.  256,  §§  5-7. 

Manner  of  payment,  in  case  of  death,  of  money  awarded  in  writ  of  entry.  Chap. 
237,  §  36. 

Survival  of  poor  debtor  proceedings,  Chap.  224,  §  33. 

§  4.  Right  of  special  administrator  to  appear  and  prosecute  or  defend,  Chap.  193, 
§  11. 


2452 


ACTIONS   FOR   DEATH,   ETC. 


[Ch.\p.  229. 


CHAPTER    229. 

ACTIONS  FOR  DEATH  AXD   INJURIES  RESULTING   IX    DEATH. 


Sect. 

1.  Damages  for   death   from   a   defective 

way. 

2.  Damages   for  death   by  negligence   of 

common  carrier. 

3.  Penalty    on    certain    corporations    for 

death  by  negligence,  etc. 

4.  Action  against  employer  for  death. 

5.  Action  for  death  in  general. 

6.  Count  for  conscious  suffering  in  action 

for  death. 


Sect. 

7.  .-Vction  by  legal  representative  of  em- 
ployee for  death  after  conscious 
suffering,  etc. 

S.  Amendment  of  actions  brought  for 
death  or  injurj'  of  employee. 

9.  Damages  in  action'  for  death  of  em- 
ploj'ee. 

10.  Xotice  and  limitation  in  action  against 

employer  for  death. 

11.  Interest. 


Damages  for 
death  from  a 
defective  wav. 
P.  L.  1693-4", 
6,  §6. 

17S6,  81,  §  7. 
R.  S.  25,  §  21. 
G.  S.  44,  J  21. 
ISSl,  199, 
§§  4,  5. 
P.  .S.  52,  §  17. 
R.L.  51,  5  17 
1917,  344. IV, 
§  23,  VIII,  §  1. 
138  Mass.  14. 
155  Mass.  344. 
1S5  Mass.  510. 
18S  Mass.  53. 
192  Mass.  220. 
194  Mass.  183. 


Damages  for 

death  by 

negligence  of 

common 

carrier. 

1S40,  80. 

G.  S.  160,  §  34. 

ISSl,  199,  §§  3, 

5,  6. 

P.  S.  73,  §  6. 

R.  L.  70,  §  6. 

132  Mass.  555. 

144  Mass.  425. 

179  Mass.  329. 

200  Mass.  8. 


Section  1.  If  the  life  of  a  person  is  lost  by  reason  of  a  defect  or  a  want 
of  repair  of  or  a  want  of  a  sufScient  railing  in  or  upon  a  way,  causeway 
or  bridge,  the  county,  city,  town  or  person  by  law  obliged  to  repair  the 
same  shall,  if  it  or  he  had  previous  reasonable  notice  of  the  defect  or  want 
of  repair  or  want  of  railing,  be  liable  in  damages  not  exceeding  one 
thousand  dollars,  to  be  assessed  with  reference  to  the  degree  of  culpa- 
bility of  the  defendant  and  recovered  in  an  action  of  tort  commenced 
within  one  year  after  the  injury  causing  the  death  by  the  executor  or 
administrator  of  the  deceased  person,  to  the  use  of  the  widow  and  children 
of  the  deceased  in  equal  moieties,  or,  if  there  are  no  children,  to  the  use 
of  the  widow,  or,  if  there  is  no  widow,  to  the  use  of  the  next  of  kin. 


197  Mass.  480. 

211  Mass.  561. 

212  Mass.  243. 
21S  Mass.  582. 


219  M.1SS.  310. 
222  Mass.  591. 
226  Mass.  479. 


227  Mass.  462. 
230  Mass.  370,  536. 
236  Mass.  275. 


Section  2.  If  the  proprietor  of  a  common  carrier  of  passengers, 
except  a  railroad  corporation  or  street  railway  or  electric  railroad  com- 
pany, by  reason  of  his  or  its  negligence,  or  by  reason  of  the  unfitness  or 
gross  negligence  or  carelessness  of  his  or  its  servants  or  agents,  causes  the 
death  of  a  passenger,  he  or  it  shall  be  liable  in  damages  in  the  sum  of  not 
less  than  five  hundred  nor  more  than  five  thousand  dollars,  to  be  assessed, 
recovered  and  distributed  as  provided  in  section  one,  and  to  the  use 
of  the  persons  and  in  the  proportions  therein  specified. 


1 

2 

3 

4 
5 
6 
7 
8 
9 
10 
11 


221  Mass.  12 


230  Mass.  370. 


Penalty  on 
certain  cor- 
porations for 
death  by  neg- 
ligence, etc. 
1840,  80. 
1853,  414, 
§§  1-3. 
G.  S.  63, 
H  97-99. 
1864,  229, 
§§  37,  38. 
1S67,  164. 
1871,  381, 
§5  49,  50. 
1874,  372, 
§  163. 

1881,  199,  5§  1, 
5,6. 

P.  S.  112,  §  212. 
1SS3,  243. 
1886,  140. 
R.  L.  Ill, 
§267. 


Section  3.  If  a  corporation  operating  a  railroad,  street  railway  or  1 
electric  railroad,  by  reason  of  its  negligence  or  of  the  unfitness  or  negli-  2 
gence  of  its  agents  or  servants  while  engaged  in  its  busiiiess,  causes  the  3 
death  of  a  passenger,  or  of  a  person  in  the  exercise  of  due  care  who  is  not  a  4 
passenger  or  in  the  emplojTnent  of  such  corporation,  it  shall  be  punished  5 
by  a  fine  of  not  less  than  five  hundred  nor  more  than  ten  thousand  dollars,  6 
to  be  recovered  by  an  indictment  prosecuted  within  one  year  after  the  7 
time  of  the  injury  which  caused  the  death,  which  shall  be  paid  to  the  8 
executor  or  administrator,  and  distributed  as  pro\'ided  in  section  one;  9 
but  a  corporation  which  operates  a  railroad  shall  not  be  so  liable  for  the  10 
death  of  a  person  while  walking  or  being  upon  its  railroad  contrary  to  11 
law  or  to  the  reasonable  rules  and  regulations  of  the  corporation,  and  12 
one  which  operates  an  electric  railroad  shall  not  be  so  liable  for  the  death  13 


Chap.  229.]  actions  for  death,  etc.  2453 

14  of  a  person  while  so  walking  or  being  on  that  part  of  its  railroad  not  Pol'n^^&l'-s. 
1.3  within  the  limits  of  a  highway.     Such  corporation  shall  also  be  Hable  5ig,§  I's. 

*  o  »  i^  1907    39''* 

16  in  damages  in  the  sum  of  not  less  than  G.ye  hundred  nor  more  than  ten  428,  '§  4." 

17  thousand  dollars,  to  be  assessed  with  reference  to  the  degree  of  culpabil-  n  c'ush^5i2. 

18  ity  of  the  corporation  or  of  its  servants  or  agents,  which  shall  be  re-  fo^AUenf isg. 

19  covered  in  an  action  of  tort,  begun  within  one  year  after  the  injury  which  Joi'^i'fJ's/foi 

20  caused  the  death,  by  the  executor  or  administrator  of  the  deceased,  and  iw  Mass.  236. 

21  distributed  as  provided  in  section  one.    If  an  employee  of  a  railroad  cor-  120  Mass!  372. 

22  poration,  being  in  the  exercise  of  due  care,  is  killed  under  such  circum-  129  Mass!  50b. 

23  stances  as  would  have  entitled  him  to  maintain  an  action  for  damages  {34  Mag^;  In! 

24  against  such  corporation  if  death  had  not  resulted,  the  corporation  shall  \l^  ^J^^^;  Igl 

25  be  liable  in  the  same  manner  and  to  the  same  extent  as  it  would  have  been  ?^?-,^^2. 

•  1.     1         1  1111  I  n  ...        141  Mass.  463. 

26  if  the  deceased  had  not  been  an  employee.    But  no  executor  or  admmis-  us  Mass.  soi. 

27  trator  shall,  for  the  same  cause,  avail  himself  of  more  than  one  of  the  i46  Mass!  379! 

28  remedies  given  by  this  section.  147  Mass.  101. 

148  Mass.  478.  175  Mass.  181.  212  Mass.  392. 

153  Mass.  79.  112,  300.  182  Mass.  337.  214  Mass.  1,  98. 

154  Mass.  478.  185  Mass.  510.  215  Mass.  50.  467. 

156  Mass.  316.  320.  187  Mass.  77.  216  Mass.  178.  598. 

157  Mass.  336.  188  Mass.  371.  217  Mass.  188,  594. 

159  Mass.  3.  536.  189  Mass.  270.  218  Mass.  397,  582. 

160  Mass.  39.  190  Mass.  527.  221  Mass.  457. 

161  Mass.  26,  298.  192  Mass.  20.  222  Mass.  583. 

162  Mass.  66.  194  Mass.  181.  223  Mass.  29,  184. 

163  Mass.  132,  330.  197  Mass.  32,  391.  224  Mass.  303,  452. 

164  Mass.  424.  200  Mass.  8,  147.  225  Mass.  65. 

165  .Mass.  572.  201  Mass.  38.  226  Mass.  262. 

166  Mass.  492.  203  Mass.  453.  227  Mass.  493. 

171  Mass.  33.  52,  164.  206  Mass.  557.  228  Mass.  472. 

172  Mass.  211.  209  Mass.  81,  100.  229  Mass.  506. 

173  Mass.  136.  210  Mass.  553.  234  Mass.  415. 

1  Section  4.     If,  as  the  result  of  the  negligence  of  an  employer  himself,  ^^,"1™  er'""*' 

2  or  of  a  person  for  whose  negligence  an  employer  is  liable  under  section  f'?  death. 

3  one  of  chapter  one  hmidred  and  fifty-three,  an  employee  is  instantly  R.  l!  lou!  §  73. 

4  killed,  or  dies  without  conscious  suffering,  his  widow  or,  if  he  Iea\'es  no  1909.' su,' 

5  widow,  his  next  of  kin,  who,  at  the  time  of  his  death,  were  dependent  upon  fl/Mais.^iil!'' 

6  his  wages  for  support,  shall  have  a  right  of  action  for  damages  against  \ll  Wm-  |g 

7  the  emplover.    Tliis  section  shall  not  apply  to  iniiiries  caused  to  domestic  J';*  m^^^-  fS^- 

^     •  1        P  11  -i"  167  Mass.  590. 

8  servants  or  larm  laborers  by  fellow  employees.  les  Mass.  40. 

174  Mass.  455.  191  Mass.  9.  202  Mass.  254. 

175  Mass.  502.  193  Mass.  76.  211  Mass.  446. 

176  Mass.  266.  195  Mass.  437.  218  Mass.  582. 
1S3  Mass.  13.  197  Mass.  391.  219  Mass.  351. 
1,S5  Mass.  151.  199  Mass.  254.  222  Mass.  538. 
188  Mass.  371.  200  Mass.  284.  227  Mass.  123. 

1  Section  5.     Except  as  pro\'ided  in  sections  one,  two  and  three,  a  Action  for 

2  person  who  by  liis  negligence,  or  by  the  negligence  of  his  agents  or  serv-  glneral" 

3  ants  while  engaged  in  liis  business,  causes  the  death  of  a  person  in  the  isgsisGs! 

4  exercise  of  due  care,  who  is  not  in  his  employment  or  serA-ice,  shall  be  f^,^-  JIl'  ^  ^■ 

0  liable  in  damages  in  the  sum  of  not  less  than  five  hundred  nor  more  J^?  Mass.  i76. 

6  than  ten  thousand  dollars,  to  be  assessed  with  reference  to  the  degree  is7  Mass!  376.' 

7  of  his  culpability  or  of  that  of  his  agents  or  servants,  to  be  recovered  in  192  Mass!  20, ' 

8  an  action  of  tort,  conmienced  within  two  years  after  the  injury  which  200  Mass.  s, 

9  caused  the  death  by  the  executor  or  administrator  of  the  deceased,  to  ooiMass  276. 
10  be  distributed  as  pro^^ded  in  section  one. 

203  Mass.  572.  219  Mass.  15,  560,  566.  230  Mass.  139. 

206  Mass.  308.  220  Mass.  90,  236.  231  Mass.  397,  458, 

209  Mass.  529.  221  Mass.  24,  125,  195.  519, 538. 550. 

211  Mass.  54,  561.  222  Mass.  560.  232  Mass.  183. 

212  Mass.  243.  392.  223  Mass.  179.  233  Mass.  392. 
214  Mass.  426.  225  Mass.  151,  576.  235  Mass.  66. 
218  Mass.  231,  582.  226  Maas.  75,  479.  230  Mass.  387. 

1  Section  6.     In  any  civil  action  brought  under  section  three  or  five,  Count  for 

2  damages  may  be  recovered  under  a  separate  count  at  common  law  for  suSerlng^n 


2454 


ACTIONS    FOR   DEATH,    ETC. 


[Cbl^p.  229. 


action  for         coDScious  Suffering  resulting  from  the  same  injury,  but  any  sum  so  re-  3 

1911,31:633.     covered  shall  be  held  and  disposed  of  by  the  executors  or  administrators  4 

iieMassJse!    as  assets  of  the  estate  of  the  deceased.  5 

219  Mass.  566.  229  Mass.  506.  232  Mass.  183. 


Action  by 
legal  repre- 
sentative of 
employee  for 
death  after 
conscious 
suffering,  etc. 

1892,  260,  §  1. 

1893,  359. 

1894,  499. 

R.  L.  106,  §  72. 
1900.  370. 
1909,  514, 
5§  128,  145. 
1915,  179. 
185  Mass.  151, 
510. 
188  Mass.  371. 


Section  7.     If  a  cause  of  action  exists  against  an  employer  under  1 

section  one  of  chapter  one  hundred  and  fifty-three,  or  because  of  the  2 

negligence  of  the  employer  himself,  for  an  injury  resulting  in  death  which  3 

is  not  instantaneous  or  is  preceded  by  conscious  suffering,  if  there  is  any  4 

person  who  would  have  been  entitled  to  bring  an  action  under  section  5 

four,  the  legal  representatives  of  the  deceased  may,  in  the  action  under  6 

said  section  one,  recover  damages  both  for  the  injury  and  for  the  death,  7 

and.  if  the  employer  is  also  liable  at  common  law,  may  in  a  separate  count  8 

in  the  same  action  recover  damages  for  conscious  suffering  resulting  from  9 

the  same  injury.  10 


198  Mass.  163. 

200  Mass.  284,  432. 

201  Mass.  227. 
203  Mass.  273. 


208  Mass.  296. 
210  Mass.  86. 

214  Mass.  426. 

215  Mass.  199. 


218  Mass.  582. 

219  Mass.  164. 
224  Mass.  452. 
227  Mass.  168. 


Amendment 
of  actions 
brought  for 
death  or  injury 
of  employee. 

1908,  457. 

1909,  514. 
§§  1.30.  145. 
200  Mass.  284. 


Section  8.     If  an  action  is  brought  under  section  four,  or  if  the  1 

action  is  brought  by  the  legal  representati\es  under  the  preceding  sec-  2 

tion  or  under  section  one  of  chapter  one  hundred  and  fifty-three,  such  3 

action  shall  not  fail  by  reason  of  the  fact  that  it  should  have  been  brought  4 

under  the  other  section,  but  at  any  time  prior  to  final  judgment  may  be  5 

so  amended  as  to  provide  against  such  failure.  6 


Damages  in 
action  for 
death  of 
employee. 
1887,  270,  §  3. 
1893.  260. 
§§  1.  2. 

1893,  359. 

1894,  499. 
1900,  446. 
R.  L.  106, 
1909,  514, 
§§  131,  145. 
185  Mass.  510. 
188  Mass.  371. 
198  Mass.  163. 
203  Mass.  273. 
21S  Mass.  5S2. 


§  74. 


Section  9.  If  under  section  four  or  section  seven  damages  are  1 
awarded  for  death  or  for  injury  and  death,  they  shall  be  assessed  with  2 
reference  to  the  degree  of  culpability  of  the  employer  or  of  the  person  3 
for  whose  negligence  the  employer  is  liable.  4 

The  amount  of  damages  which  may  be  awarded  in  an  action  brought  5 
under  section  four  shall  not  be  less  than  five  hundred  nor  more  than  6 
five  thousand  dollars.  7 

The  amount  of  damages  which  may  be  awarded  for  injury  and  death  in  8 
an  action  brought  under  section  seven  shall  not  exceed  fi^•e  thousand  9 
dollars  for  both  the  injury  and  the  death,  and  shall  be  apportioned  by  10 
the  jury  between  the  legal  representati\'es  of  the  employee  and  the  per-  11 
sons  who  would  have  been  entitled  under  section  four  to  bring  an  action  12 


for  his  death. 


13 


Notice  and 
limitation 
in  action 
against  em- 
ployer for 
death. 
1887,  270,  §  : 


Section  10.  An  action  under  section  four  or  section  seven  shall  be 
subject  to  all  the  provisions  of  section  six  of  chapter  one  hundred  and 
fifty-tliree  relative  to  notice  to  the  employer  of  the  time,  place  and  cause 
of  the  injury,  and  the  time  ■within  which  the  action  shall  be  commenced. 


1SS8,  155,  §  1. 
1892,  260,  I  2. 
1894,  389. 
1900,  446. 
R.  L.  106.  §  75. 

1909,  514,  §§  132,  145. 

1910,  160,  §  2;  611. 

1911,  17S. 


1912,  251. 

197  Mass.  SSB. 

198  Mass.  385. 

199  Mass.  418. 

200  Mass.  284. 

201  Mass.  473. 

202  Mass.  228. 


204  Mass.  197. 

209  Mass.  196. 

210  Mass.  86. 

216  Mass.  512,  552. 
219  Mass.  164. 
226  Mass.  374. 
228  Mass.  361. 


Interest. 
1913,  290. 


Section  11.     In  any  ci\'il  action  in  which  a  verdict  is  given  for  1 

pecuniary  damages  for  the  death,  with  or  without  conscious  suffering,  of  2 

any  person,  whether  or  not  such  person  was  in  the  emplojTiient  of  the  3 

defendant  against  whom  the  ^-erdict  is  rendered,  there  shall  be  added  4 


CH-^P.  230.]      ACTIONS  BY  AND   AGAINST  EXECUTORS  AND  ADMINISTRATORS. 


2455 


5  to  the  amount  of  the  damages  interest  thereon  from  the  date  of  the  writ, 

6  even  though  sucii  interest  brings  the  amount  of  the  verdict  beyond  the 

7  maximum  hability  imposed  by  law. 

REFERENCES. 

Damages  for  death  caused  by  municipal  lighting  plant,  Chap.  164,  §  64. 
§  1.    As  to  notice  of  the  injury  resulting  in  death,  Chap.  84,  §§  18,  19. 
§  3.    Gross,  etc.,  neghgence  necessary  to  constitute  contributory  negUgence  in  cer- 
tain grade  crossing  cases,  Chap.  160,  §  232. 

§§  4,  7.  Limitation  of  actions  under  these  sections,  Chap.  153,  §  6. 


CHAPTER    230. 

ACTIONS  BY  AND   AGAINST  EXECUTORS  AND  ADMINISTRATORS. 


Sect. 

1.  What  actions  may  be  brought. 

2.  Damages  in  tort. 

3.  Recovery  by  executor,  etc.,  in  right  of 

another. 

4.  Property  returned  on  replevin  by  ex- 

ecutor, etc. 

5.  Legatee,  etc.,  may  bring  suit  to  enforce 

claim  where  executor,  etc.,  refuses,  etc. 

6.  Writs  against  executors,  etc. 


Sect. 

7.  No  attachment  without  permission  of 

probate  court. 

8.  Costs. 

9.  Separate  executions  for  damages  and 

for  costs. 

10.  Scire  facias  against  executor,  etc. 

11.  Death  of  executor,  etc.,  pending  action. 

12.  Same,  after  judgment. 

13.  Writ  of  error. 


1  Section  1.     An  action  which  would  ha\'e  survived  if  comrnenced  may  be"*'""^ 

2  by  or  against  the  original  party  in  his  lifetime  may  be  commenced  and  ^°^^g^-  =  § 

3  prosecuted  by  or  against  his  executor  or  administrator. 

G.  S.  128,  §  1.  P.  S.  166,  §  1.  R.  L.  172,  §  1. 

1  Section  2.     If  an  action  of  tort  is  commenced  or  prosecuted  against  Damages 

in  tort 

2  the  executor  or  administrator  of  the  person  originally  liable,  the  plaintiff  r.  s.  93.  §  9. 

3  shall  recover  only  the  value  of  the  goods  taken,  or  the  damage  actually  p,s.ii"o.'§2.' 

4  sustained,  without  vindictive  or  exemplary  damages,  or  damages  for  any  ?73\ii^s^'.  Iil. 

5  alleged  outrage  to  the  feelings  of  the  injured  party. 

1  Section  3.     If  the  executor  or  administrator  of  a  trustee,  carrier.  Recovery  by 

2  depositary  or  other  person  who  claimed  only  a  special  property  in  goods  fnHght'^of'  '^" 

3  which  he  held  for  the  use  and  benefit  of  another  recovers  such  goods,  or  '1822,  no.  1  2. 

4  damages  for  the  taking  or  detention  thereof,  in  replevin  or  tort,  the  goods  q'  |;  lis.^^s! 

5  or  money  recovered  shall  not  be  assets  in  his  hands,  but  shall,  after  the  ^  f;  ^[f^  \^^ 

6  deduction  of  the  costs  and  expenses  of  the  action,  be  delivered  or  paid 

7  to  the  person  for  whose  use  and  benefit  they  were  so  held  or  claimed  by 

8  the  deceased. 


1  Section  4.     If  judgment  for  a  return  in  an  action  of  replevin  is  Property  re- 

2  rendered  against  an  executor  or  administrator,  the  property  returned  repWrn  by 

3  by  him  shall  not  be  assets  in  his  hands;  and  if  it  has  been  included  in  the  isl^m.Ts. 

4  inventory,  he  shall  be  allowed  therefor  in  his  account  if  he  shows  that  ^i- 1  i2s^§'4' 

5  it  has  been  returned  in  pursuance  of  such  judgment. 


P.  S.  166,  §  4. 


R.  L.  172,  §  4, 


2456 


ACTIONS   BY  AND   AGAINST   EXECUTORS   AND   ADMINISTRATORS.       [ChAP.  230. 


Legatee,  etc., 
may  bring 
suit  to  enforce 
claim  where 
executor,  etc., 
refxises.  etc. 
1915,  151,  §  7. 


Section  5.  It  shall  be  unnecessary  to  remove  an  executor  or  adminis-  1 
trator  in  order  that  an  action  or  suit  to  enforce  a  claim  in  favor  of  the  2 
estate  may  be  brought  by  an  administrator  to  be  appointed  in  his  place,  3 
when  he  refuses  to  bring  such  action  or  suit  at  the  request  of  a  legatee  or  4 
creditor,  or  is  unable  to  do  so  by  reason  of  his  interest  or  otherwise,  but  5 
a  legatee  or  creditor  having  an  interest  in  the  enforcement  of  any  such  6 
claim  may  bring  a  suit  in  equity  to  enforce  it  for  the  benefit  of  the  estate  7 
in  like  circumstances  and  in  like  manner  as  a  person  beneficially  interested  8 
in  a  trust  fund  may  bring  a  suit  to  enforce  a  claim  in  favor  of  such  fund,  9 
and  in  case  of  such  a  suit  in  respect  to  real  estate,  it  shall  not  be  an  10 
obstacle  to  the  suit  that  a  license  to  sell  it  has  not  been  obtained  by  the  11 
executor  or  administrator.  12 


Writs  against 
executors,  etc, 
1703^,  12,  §  4. 
1783,  32,  §  9. 
R.  S.  110,  §  1. 
G.  S.  128,  §  5. 
P.  S.  166,  §  5. 


Section  6.     Writs  of  attachment  and  executions  against  executors  1 

or  administrators  for  debts  due  from  the  testator  or  intestate  shall  run  2 

only  against  the  goods  and  estate  of  the  deceased  in  their  hands,  and  3 

not  against  their  bodies,  goods  or  estate.  4 


R,  L.  172,  5  5. 
3  Mass.  523. 


140  Mass.  6fi. 

151  Mass.  148,  501. 


190  Mass.  522. 
221  Mass.  587. 


No  attachment 
without  per- 
mission of 
probate  court. 
1907,  653. 


Section  7.     The  real  and  personal  property  of  a  deceased  person  1 

shall  not  be  attached  on  mesne  process  in  an  action  upon  a  debt  due  2 

from,  or  upon  a  claim  against,  the  deceased,  except  upon  the  permission  3 

of  the  probate  court  for  the  county  where  the  executor  or  administrator  4 

of  the  deceased  person  w-as  appointed.    This  section  shall  not  apply  to  5 

actions  brought  under  section  twenty-nine  of  chapter  one  hundred  and  6 

ninety-seven.  7 


Costs. 

R.  S.  110,  §§  2, 

3,5. 

G.  S.  128,  §§  6, 

7,9. 

P.  S.  166,  §§  6, 

7,9. 

R.  L.  172,  §  6. 

16  Mass.  530. 

2  Pick.  68. 

11  Pick.  389. 

14  Pick.  8,  274. 

15  Pick.  385. 
220  Mass.  1. 


Section  8.     If  a  judgment  for  costs  is  rendered  against  an  executor  1 

or  administrator  in  an  action  commenced  by  or  against  him,  or  in  an  action  2 

commenced  by  or  against  the  testator  or  intestate,  wherein  the  executor  3 

or  administrator  has  appeared  and  taken  upon  himself  the  prosecution  4 

or  defence,  he  shall  be  personally  liable  for  the  costs,  and  execution  shall  5 

be  awarded  against  his  body,  goods  and  estate,  as  if  it  were  for  his  own  6 

debt.    Costs  paid  by  him  shall  be  allowed  in  his  account  unless  the  pro-  7 

bate  court  determines  that  the  action  was  prosecuted  or  defended  without  8 

reasonable  cause.  9 


Separate  exe- 
cutions for 
damages  and 
for  coats. 
R.  S.  110,  §4. 
G.  S.  128,  §  S. 
P.  S.  166,  §  8. 
R.  L.  172,  §  7. 
120  Mass.  516. 


Section  9.  If  the  judgment  is  for  damages  and  costs,  an  execution 
for  the  damages  shall  be  awarded  against  the  goods  and  estate  of  the 
deceased  in  the  hands  of  the  executor  or  administrator,  and  another 
execution  for  costs  against  the  goods,  estate  and  body  of  the  executor  or 
administrator,  as  if  for  his  own  debt. 

136  Mass.  249,  294.  143  Mass.  187.  216  Mass.  30.  220  Mass.  1. 


Scire  facias 
against  execu- 
tor, etc. 
170.3-4,  12,  §  4. 
1783,  32,  §  9. 
1819,  157. 
R.  S.  110.  §  6. 
G.  S.  128, 
§10. 

P.  S.  166,  §  10. 
R.  L.  172,  §  8. 
142  Mass.  227. 
144  Mass.  238. 


Section  10.  Upon  the  return  unsatisfied  of  an  execution  against  an 
executor  or  administrator  for  a  debt  due  from  the  estate  of  the  deceased, 
the  court  may,  upon  a  suggestion  by  the  creditor  of  waste,  issue  a  ^^Tit 
of  scire  facias  against  the  executor  or  administrator.  If  the  defendant 
does  not  appear  and  show  sufficient  cause  to  the  contrary,  he  shall  be  found 
guilty  of  waste  and  shall  be  personally  liable  for  the  amount  thereof,  if  it 
can  be  ascertained,  otherwise  for  the  amount  due  on  the  original  judgment, 


CH.4P.  231.]  PLEADING  AND   PRACTICE.  2457 

8  with  interest  from  the  time  when  it  was  rendered,  and  judgment  and  lli  Mass!  ssv! 

9  execution  shall  be  awarded  as  for  his  own  debt. 

1  Section  11.     If  an  executor  or  administrator  dies  or  is  removed  from  Death  ot  execu- 

2  ofBce  during  the  pendency  of  an  action  to  which  he  is  a  party,  it  may  be  ?ng' action^*" 

3  prosecuted  by  or  against  the  administrator  de  bonis  non  in  like  manner  as  Jsi?!  looi  |  is. 

4  if  commenced  by  or  against  him;    and  the  pro\'isions  of  chapter  two^^jf-g'"' 

5  hundred  and  twenty-eight  relative  to  the  appearance  or  citation  of  an  c*  s^  128. 


6  administrator  and  relative  to  a  nonsuit  or  default  shall  apply  to  such  ?■  s.  lee 

.      .  11-  SS  II     19 

7  admmistrator  de  boms  non. 

R.  L.  172,  §  9.  4  Mass.  611.  7  Allen,  427, 


1  Section  12.     If  an  executor  or  administrator  dies  or  is  removed  after  same,  after 

2  judgment  has  been  rendered  for  or  against  him,  the  court  may  issue  a  ml^fos,  §  2. 

3  vrrit  of  scire  facias  in  favor  of  or  against  the  administrator  de  bonis  non,  r/s.' i?o,' 1 9*' 

4  and  a  new  execution  may  be  issued  in  like  manner  as  may  be  done  in  p',|.il|;|i3; 

5  favor  of  or  against  an  original  executor  or  administrator  in  case  of  the  ^-  ^- 1'^'  §  '°- 

6  death  of  his  testator  or  intestate  after  a  judgment  rendered  for  or  against 

7  him;  except  that  a  judgment  against  the  first  executor  or  administrator 

8  for  costs  for  which  he  was  personally  liable  shall  be  enforced  only  against 

9  his  executor  or  administrator  and   not  against  the  administrator  de 
10  bonis  non. 

1  Section  13.     If  a  judgment  is  rendered  for  or  against  an  executor  writ  of  error. 

2  or  administrator,  a  writ  of  error  may  be  brought  thereon  by  or  against  Hul  wo,  |  h. 

3  an  administrator  de  bonis  non  in  like  manner  as  it  might  have  been  §;  §;  Jig]  |  li'. 

4  brought  by  or  against  the  executor  or  administrator  who  was  party  to  J^-  ^  ^^f.;  \  \^j- 

5  the  judgment.  4  Mass.  en.  7  Mien,  427. 

REFERENCES. 

§  1.     ^\Tiat  actions  survive,  Chap.  228. 

Time  limit  for  bringing  suit  against  executor  or  administrator,  Chap.  197,  §  9 

et  seq. 
Necessity  of  specific  denial  that  executor,  etc.,  is  such,  Chap.  231,  §  30. 
Mode  of  service  of  writs,  etc.,  against  executors,  etc.,  Chap.  223,  §  36. 
Time  within  which  real  estate  may  be  sold  for  payment  of  debts,  Chap.  202, 

§20. 
Dissolution  of  attachment  on  death  of  debtor.  Chap.  223,  §  116  et  seq. 
§  7.     Liability  of  land  to  be  taken  on  execution  for  costs  in  certain  cases.  Chap.  236, 

§53. 
§  9.     Authority  of  district  courts  to  issue  writ  of  scire  facias,  Chap.  218,  §  20. 


CHAPTER    231. 

PLEADING   AND   PRACTICE. 

(All  sections  of  this  chapter,  except  as  otherwise  provided,  apply  to  actions  at  law  in  the  supreme  judicial 
and  superior  courts.  The  following  signs  against  a  section  number  indicate  that  a  section  also 
applies  as  follows : 

*     to  ci\'il  actions  before  any  district  court.     See  §  141. 

t     to  real  and  mixed  actions,  and  to  the  land  court  or  proceedings  begun  therein.     See  §  142. 

J     to  the  municipal  court  of  the  city  of  Boston.     See  §  143. 

§     to  suits  in  equity  and  probate  proceedings.     See  §  144. 

II  to  petitions  for  damages  for  taking  by  eminent  domain  and  for  abatement  of  betterment  assess- 
ments.    See  §  145. 

^     to  suits  in  equity.     See  §  146.] 


2458 


PLEADING  AND   PRACTICE. 


[CH-AP.  231. 


Sect. 


PLEADING. 

Division  of  Personal  .Actions. 

*  1.  Division  of  actions. 

Parties. 

*  2.  Joinder  of  plaintiffs  in  several 

actions. 

*  3.  Joinder  of  co-tenants. 

*  4.  Joinder  of  defendants  severally 

liable  on  written  contracts. 

*  5.  Action  by  assignee  of  chose  in 

action. 
II      6.  Same  subject. 


*t 


*t 
*t 
*t 
*t 
*t 


Declarations. 
7.  Form  of  declaring  at  law. 
S.  In  real  actions  on  mortgage. 
9.  Writ  and  declaration  in  action 
of  ejectment. 

10.  Description  of  plaintiff's  close 

in  tort,  etc. 

11.  Declaration    need    not    be    in 

writ,  unless,  etc. 

12.  Time  of  filing  decl.iration. 

13.  Non-entry  and  late  entry. 

14.  Bill  of  particulars. 

Demurrers. 

15.  Demurrers. 

16.  Demurrer  to  the  declaration. 

17.  Demurrer  to  the  answer. 

18.  Causes  for  demurrer. 

19.  Pleading  after  demurrer. 


Sect. 


41.   Interpleader 
pledgee. 


Answers,  Replications,  etc. 

*  t    20.  Answer  in  abatement. 
*t    21.  Answering  over. 

*  t    22.  Answer  or  general  issue. 

*  t    23.  Joint  answer. 

24.  Pleadings  on  appeal. 

*  25.  Answer. 

*  26.  Answers  to  separate  items,  etc. 

*  27.  General  or  partial  denial. 

*  28.  Answer  in  avoidance. 

*  H    29.  Signatures  admitted  unless  gen- 
uineness is  denied. 

30.  Representative  or  corporate  ca- 
pacity admitted,  unless,  etc. 

31.  Equitable  defences. 

*  32.  Written       instruments,       how 

pleaded. 

*  33.  Conditional    obligations,    etc., 

how  pleaded. 

Replication. 

Equitable     avoidance     of     de- 
fence. 

Supplemental  declaration,  etc. 

Alternative  averments. 

Construction  of  pleadings. 

Action,  when  at  issue. 

PRACTICE. 

Interpleader. 
40.  Interpleader  by  defendant. 


* 

34 

t§ll 

35 

* 

36 

* 

37 

* 

38 

*  t 

39 

by      bailee 
Endorsement  of  Process, 


*  t  T    42.  Endorsement  of  writs,  etc.,  be- 

fore entry. 

*  t  If    43.  Same  after  entry. 

*  t  U    44.  Endorser     upon     removal     of 

plaintiff. 

*  t  IF    45.  Endorser        removing,        etc., 

another  required. 
46.  Endorser  in  probate  cases,  etc. 

*  t  H    47.  Dismissal  for  failure  to  procure 

endorser. 

*  t  H    48.  Substitute  endorser. 

Abateme7it. 

*  t  §    49.  No  abatement  for  circumstan- 

tial errors. 

*  t    50.  Judgment  upon  issue  of  fact. 

Amendments. 
't  §  II    51.  Changing  parties,  form,  etc. 
'till    52.  Amendment  after  demurrer. 

*  t    53.  Amendment,  etc.,  after  answer 

in  abatement. 

54.  Joinder  of  new  defendants. 

55.  Amendments  changing  actions 
at  law  into  suits  in  equity, 
and  vice  versa. 

*  t    56.  Amendment  after  judgment. 

Defaults. 

57.  Defaults. 

58.  Notice  of  default  or  decree  pro 
confesso. 


*t 


*t 


Advancing  Causes  for  Speedy  Trial. 
59.  Advancing  actions  for  speedy 
trial. 

Claim  of  Trial  by  Jury. 
t    60.  Jury  trial,  how  claimed. 

Interrogatories. 

61.  Parties  may  file  interrogatories, 
when. 

62.  Answers. 

63.  Practice. 

64.  Penalty  for  failure  to  answer, 
etc. 

65.  Answers  by  corporation,  etc. 

66.  Costs. 

67.  Right   to   seal   up   immaterial 

parts  of  book,  etc. 

Inspection  of  Documents. 
*  t  §  11    68.  Inspection  of  documents. 

Admission  of  Material  Facts  and  Documents. 

*  69.  In  certain  actions  either  party 

may  call  for  admission  of  fact 
or  of  execution  of  paper. 

Interlocutory  Orders. 

*  70.  Statement  of  particulars  of  ac- 

tion or  defence. 


*t§l 

*t§l 
*t§l 
*t§l 

*t§l 
*t§l 
*t§l 


Chap.  231.] 


PLE.UJING   AND   PRACTICE. 


2459 


Sect. 
till 


*t 
*t 


n.  Orders, 
trial. 


etc.,     preparatory 
when  made. 


Agreements  of  Parties. 

72.  Agreements. 

73.  Continuances  by  agreement. 


Offer  of  Judgment. 

*  1[    74.  Offer  of  judgment. 

*  U    75.  Costs    to    defendant    on    i 

acceptance. 

Frivolous  Demurrer. 
t    76.  Frivolous    or    immaterial 
murrers. 


de- 


Hearing  or  Trial. 

t  77.  Jury  waived  cases  and  de- 
murrers, how  heard. 

t  78.  Postponement  of  actions  on 
trial  list. 

♦  t    "9.  Trials   not   to   be   delayed    or 

postponed,  etc. 
t    SO.  Trials  to  proceed  after  allow- 
ance of  exceptions, 
t  §  II    81.  Charges  as  to  facts  forbidden. 

82.  Place  of  trial, 
till    83.  Examination  of  witnesses. 

84.  Consolidation    of    actions    for 
libel. 

Evidence. 

*  85.  Contributory  negligence  an  af- 

firmative defence;  presump- 
tion and  burden  of  proof. 
t    86.  Counts    not    proved    may    be 
stricken  out. 
*t  §  II    87.  Pleadings  not  evidence. 

*  %    88.  Unaccepted  offer  of  judgment. 
♦  t  §  1 1    89.  Answers  to  interrogatories  may 

be  read  at  trial. 

*  t  H    90.  One  matter  in  answer  not  e^a- 

dence  of  another. 

*  91.  Justification    in     slander    not 

proof  of  malice. 

*  92.  Truth  of  Ubel  admissible. 

*  93.  Retraction  of  libel. 

*  94.  EWdence     in      mitigation      of 

damages. 

*  95.  Evidence  of  payment,  etc.,  in 

action   on   judgment  by  de- 
fault. 

Appeals. 
t  I    96.  Appeal  to  full  court. 

*  97.  Appeal  to  superior  court. 

*  98.  Appeal  bond. 

*  99.  Deposit  in  lieu  of  bond. 

*  100.  No     appeal     bond     required, 

when. 

*  101.  Transmission  of  papers. 

*  102.  Records  in  lower  court  of  cases 

appealed. 
t  103.  Waiver  of  jury  trial  in  Boston 
municipal   court.      Removal 
by  plaintiff. 


Sect. 


t  104.  Removal     from     Boston    mu- 
nicipal court. 
t  105.  Partial  removal. 
t  106.  Deposit  in  lieu  of  removal  bond, 
t  107.  Bond  or  deposit  not  required, 

when. 
t  108.  Appellate  division. 
X  109.  Appeal  from  appellate  division 

to  supreme  judicial  court. 
X  110.  Powers  of  appellate  division. 


t 
t§ 


t§I 
t§l 


Report. 

111.  Report. 

112.  Report  in  caseof  disability, etc., 

of  presiding  justice. 


113. 
114. 


t  §11  115. 


t  116 

till  117 

t§ll  lis 

t  §11119. 

till  120 
t§  11121 

Exceptions. 

Exceptions. 

Dismissal  of  exceptions  for  fail- 
ure to  present  for  allowance. 

Allowance  of  exceptions  in  case 
of  disability,  etc.,  of  presiding 
justice. 

Frivolous  or  immaterial  ex- 
ceptions. 

Establishment  of  exceptions 
disallowed. 

Entry  of  notice  of  filing  of  peti- 
tion to  establish  exceptions. 

Reservation  where  exceptions 
disallowed. 

Verdict  by  leave  reseri'ed. 

Transcripts  of  evidence. 


Power  of  Full  Court  on  Exceptions,  Appeal 
or  Report. 
t  II  122.  Full  court  may  direct  judgment 
for  defendant  after  sustain- 
ing his  exceptions,  when. 
t  II  123.  Same  as  to  plaintiff. 
1 1  §  II  124.  Power  of  full  court  on  appeal, 

etc. 
1 1  §  11  125.  Same,  relative  to  amendments, 

etc. 
tt  §  II  126.  Inferences    of    fact    upon    case 
stated. 

New  Trials. 
t  §  II  127.  New  trial, 
till  128.  Grounds   for   new   trial   to   be 

stated  in  order,  etc. 
t  §  II  129.  New  trial  in  jury  waived  cases. 
till  130.  Terms  on  refusal  of  new  trial. 
t  §  II  131.  Effect    of   exceptions    on    new 

trial. 

Effect  of  Error  not  Affecting  Whole  Case. 
t  J  §  II  132.  No  new  trial  to  be  granted  by 
full  court  or  trial  court  on 
errors  in  evidence  or  proce- 
dure not  affecting  substantial 
rights.  Judgment  as  to  part 
of  case. 


2460 


PLEADING  AND  PRACTICE. 


[Ch.\p.  231. 


Sect. 
t  §  II  133.  Affirmance    of    judgment    by 
court  appealed  from. 

Waiver  of  Appeal  or  Exceptions. 
*  t  §  II  134.  Waiver  of  appeal  or  exceptions. 

Transmission  of  Papers. 
t  §  II  135.  Entry   of   exceptions,   etc.,    in 
law  docket. 

Arrest  of  Judgment. 
*  1 136.  Arrest  of  judgment. 

GENERAL  PROVISIONS. 

*t  S  II  137.  Suggestions  entered  on  record. 
*  t  H  138.  Identification   of  cause  of  ac- 
tion, amendment,   notice   to 
parties,  appeal,  etc. 


Sect. 

*  t  §  II  139.  Affidavit  when  corporation  is  a 
party. 
*  140.  Action  not  to  be  discontinued 
after  being  referred  to  audi- 
tor, except,  etc. 

141.  Sections  applicable  to  civil  ac- 

tions before  district  courts. 

142.  Sections  applicable  to  real  and 

mixed  actions,  except,  etc. 

143.  Sections  applicable  to  ci^-il  ac- 

tions before  municipal  court 
of  Boston.  • 

144.  Sections   applicable   to   equity 

and  probate  cases. 

145.  Sections  to  apply  in  eminent 

domain  and  betterment  cases. 

146.  Sections  applicable  in  equity. 


*  147.  Forms. 


Division 
of  actions. 
1851,  233,  §  1. 
1852,312,  I  1. 
G.  S.  129.  §  1. 
P.  S.  167,  §  1. 
R.  L.  173,  §  1. 
12  Gray,  206. 
7  Allen,  466. 


Joinder  of 
plaintiffs  in 
several  actions. 
1896,  444. 
R.  L.  173,  5  2. 
211  Mass.  156. 


PLEADING. 

Division  of  Personal  Actions. 

*  Section  1.     There  shall  be  three  divisions  of  personal  actions  — 
First,  Contract,  which  shall  include  actions  formerly  known  as  assump- 
sit, covenant  and  debt,  except  actions  for  penalties. 

Second,  Tort,  which  shall  include  actions  formerly  known  as  trespass, 
trespass  on  the  case,  trover  and  actions  for  penalties.         no  Mass.  340. 


140  Mass.  508. 


144  Mass.  64. 


177  Mass.  562. 


193  Mass.  141. 


Third,  Replevin. 


Parties. 


*  Section  2.  In  actions  of  contract  for  the  recovery  of  money  due 
for  manual  labor,  two  or  more  persons  may  join  in  one  action  against  the 
same  defendant,  although  the  claims  are  not  joint,  if  the  claim  of  no  one 
of  such  plaintiffs  exceeds  twenty  dollars;  and  each  plaintiff  so  joining  may 
recover  the  amount  found  to  be  due  to  him  solely.  The  claim  of  each 
plaintiff  shall  be  stated  in  a  separate  count,  and  the  court  may  make  such 
order  for  trial  of  the  issues  as  may  be  most  convenient,  may  enter  separate 
judgments,  issue  one  or  more  executions  and  make  such  order  relative  to 
costs  as  the  case  requires. 


Joinder  of 
co-tenants. 
1905,  266. 


*  Section  3.  Joint  tenants  or  tenants  in  common  may  join  in  any  1 
action  to  recover  damages  for  injury  to  real  or  personal  property,  or  any  2 
one  or  more  of  them  may  sue  for  his  or  their  damages.  3 


Joinder  of 

defendants 

severally 

liable  on 

written 

contracts. 

1851,  233,  §  3. 

1852,  312,  I  3. 
G.  S.  129,  §  4. 
P.  S.  167.  §  4. 
R.  L.  173,  §  3. 

1919,  333,  I  35. 

1920,  2. 

4  Gray,  294. 
7  Gray,  2S4. 


*  Section  4.  All  or  any  of  the  persons  severally  liable  upon  written 
contracts,  including  bills  of  exchange  and  promissory  notes,  may  be 
joined  in  one  action.  The  declaration  shall  describe  the  several  contracts, 
and  may  contain  one  count  against  all  the  defendants,  or  several  counts 
against  the  several  defendants.  The  court  shall  make  such  order  for 
the  separate  trial  of  the  issues  as  may  be  convenient,  and  shall  enter 
several  judgments  according  to  the  several  contracts  and  issue  one  or 
more  executions.  k.  Gray,  473.  is  Alien,  19, 217. 


104  Mass.  217. 

118  Mass.  380. 

119  Mass.  361. 


133  Mass.  409. 
160  Mass.  418. 
166  Mass.  37. 


192  M.iss.  428. 
195  Mass.  55. 
211  Mass.  156. 


Ch.\P.   231.]  PLE.iDIXG    AND    PRACTICE.  2461 

1  *  Section  5.     The  assignee  of  a  non-negotiable  legal  chose  in  action  Action  by 

2  which  has  been  assigned  in  writing  maj'  maintain  an  action  thereon  in  his  choSTfn  °^ 

3  own  name,  but  subject  to  all  defences  and  rights  of  counter-claim,  re-  i89'7,°402. 

4  coupment  or  set-off  to  which  the  defendant  would  have  been  entitled  had  V^i^i)'^'  i,*,^ 

i-i-i  I  i-i  fi  •  ^^  Mass.  319. 

5  the  action  been  brought  m  the  name  or  the  assignor. 

191  Mass.  461.  202  Ma£s.  263.  221  Mass.  399. 

194  Mass.  56.  1S7.  206  Mass.  270.  226  Mass.  246,  447. 

200  Mass.  209,  437.  216  Mass.  287.  234  Mass.  13,  526. 

201  Mass.  28.  219  Mass.  23.  236  Mass.  93. 

1  *  §  1 1  Section  6.    An  action  or  proceeding  for  the  recovery  of  an  out-  same  subject. 

2  standing  debt  or  claim  sold  or  assigned  by  an  executor  or  administrator  p.s.'i33,§5. 

3  under  a  license  of  the  probate  court  to  sell  or  assign  any  outstanding  debts  ^'  ^'  "^'  ^  ^' 

4  or  claims  shall  be  brought  in  the  name  of  the  purchaser  or  assignee.     The 

5  fact  of  the  sale  shall  be  set  forth  in  the  writ,  declaration,  bill  or  petition, 

6  and  the  defendant  may  avail  himself  of  any  defence  which  would  have 

7  been  open  to  him  upon  an  action  or  proceeding  brought  by  the  executor 

8  or  administrator.     Costs  shall  be  recovered  by  or  against  the  plaintiff 

9  or  petitioner,  but  not  against  the  executor  or  administrator.     Any  such 

10  action  brought  upon  a  promissory  note  signed  in  the  presence  of  an  attest- 

11  ing  witness  shall  not  be  barred  by  any  provision  of  chapter  two  hundred 

12  and  sLxty,  if  the  action  could  have  been  maintained  by  the  executor  or 

13  administrator. 

Declarations. 

1  *  Section  7.     In  declaring  in  personal  actions  the  following  require-  Form  of  de- 

2  ments  shall  be  observed :  issi,  233,  §  2.  '''"''«  "'  '''"• 

1852,  312,  §  2.  G.  S.  129,  §  2.  P.  S.  167,  |  2.  R.  L.  173,  §  6. 

3  First,  The  declaration  shall  state  to  which  division  of  actions  specified 

4  in  section  one  the  action  belongs. 

5  Second,  The  declaration  shall  state  concisely  and  with  substantial  cer-  substantive 

G  tainty  the  substantive  facts  necessary  to  constitute  the  cause  of  action.  irullTaia.' 

5  Piclc.  436.  6  Allen,  410,  413.  132  Mass.  489. 

10  Gush.  49.  8  .\llen,  309,  324.  133  Mass.  309. 

3  Gray,  484.  10  Allen,  299,  326.  137  Mass.  119. 

4  Gray.  444.  99  Mass.  198.  153  Mass.  380. 

7  Gray,  184.  102  Mass.  58.  154  Mass.  257. 

8  Gray,  589.  103  Mass.  21.  161  Mass.  449. 
10  Gray,  361.  105  Mass.  533.  174  Mass.  38. 
13  Gray,  272,  392.  Ill  Mass.  29.  197  Mass.  492. 
15  Gray,  249,  293.  114  Mass.  1.  200  Mass.  200. 

1  Allen,  262,  337,  519.  121  Mass.  346.  207  Mass.  312. 

2  Allen,  20,  317.  123  Mass.  5S3.  224  Mass.  528. 

3  Allen,  349. 

7  Third,  It  need  not  aver  a  fact  not  required  by  law  to  be  proved.  S^°rment"^ 

5  Gray,  541.  105  Mass.  71.  117  Mass.  195. 

9  Gray,  73.  112  Mass.  237. 

8  Fourth,  It  need  not  contain  more  than  one  count  for  each  cause  of  One™untfor 

r»  •  1  T  p  1  1  •  1  •  each  cause,  but 

9  action;  but  any  number  of  breaches  may  be  assigned  in  each  count  and,  f^y  number  of 

10  if  the  nature  of  the  case  requires  it,  breaches  may  be  assigned  in  the  s  Alien,  ssr. 

11  alternative.     Two  causes  of  action  arising  on  different  contracts  shall  i6o  Mass!  201! 

12  not  be  embraced  in  one  count  except  in  a  count  on  an  account  annexed.    231  mms.Mo. 

13  Fifth,  It  may  contain  any  number  of  counts  for  different  causes  of  Joinder  of 

14  action  which  belong  to  the  same  division  of  actions. 

13  Gray,  536.  152  Mass.  133.  231  Mass.  540. 

97  Mass.  30.  191  Mass.  38. 

15  Sixth,  Actions  of  contract  and  actions  of  tort  shall  not  be  joined;  but  Joinder  ot 

16  if  it  is  doubtful  to  which  division  a  cause  of  action  belongs,  a  count  in  action. 


2462 


PLEADING   AND    PRACTICE. 


[ClL\P.   231. 


7  Gray,  559. 
1  Allen,  26. 
12  Allen,  4S2. 


contract  may  be  joined  with  a  count  in  tort,  with  an  averment  that  both  17 
are  for  one  and  the  same  cause  of  action.        97  Mass.  29.        99  Mass.  535.  18 


Common 

counts. 

7  Gray,  187. 

15  Gray,  293. 

185  Mass.  306. 

Common 
count  for 
money  payable 
under  sealed 
instrument, 
when. 

1915.  146,  §  2. 
228  Mass.  390. 
233  Mass.  514. 


Account 

annexed. 

4  Gray,  292. 

7  Gray,  187, 

190. 

9  Allen.  355. 

11  AUen,  123. 


Interest. 
1890,  398. 


Written 
instruments, 
how  declared 
on. 

I  Gray.  325. 
4  Gray,  455. 

II  Gray,  10, 
179. 

14  Gray,  129. 

15  Gray,  87. 

16  Gray,  386. 

8  Allen,  355. 

9  Allen,  357. 
12  Allen,  396. 
103  Mass.  44, 
379 

138  Mass.  151. 


Bonds,  etc. 
171  Mass.  353, 
433. 

230"Mass.  483. 
236  Mass.  93. 


102  Mass.  439. 
107  Mass.  3H9. 

124  Mass.  50. 

125  Mass.  477. 


128  Mass.  lOi. 
134  Mass.  303. 
142  Mass.  124. 


145  Mass.  23. 
214  Mass.  245. 
225  Mass.  3. 


Seventh,  The  common  counts  shall  not  be  used  unitedly,  but  any  one  19 
of  them  may  be  used  if  the  natural  import  of  its  terms  correctly  describes  20 
the  cause  of  action.  214  Mass.  159.  21 

Eighth,  In  an  action  for  the  recovery  of  rent  or  of  any  sum  of  money  22 
payable  by  virtue  of  a  contract  under  seal  that  might  have  been  recovered  23 
upon  a  common  count  if  the  contract  had  not  been  under  seal,  the  same  24 
may  be  recovered  upon  a  common  count  in  a  form  similar  to  that  now  2.5 
used  for  other  common  counts.  The  bill  of  particulars  in  such  cases  shall  26 
refer  to  the  document  under  which  the  claim  arises,  by  its  proper  descrip-  27 
tion  and  date.  28 

Ninth,  A  count  on  an  account  annexed  may  be  used  in  an  action  of  29 
contract  if  one  or  more  items  are  claimed  any  of  which  would  be  cor-  30 
rectly  described  by  any  one  of  the  common  counts  according  to  the  31 
natural  import  of  its  terms.  99  Mass.  1.  106  Mass.  430.  32 


111  Mass.  390. 
115  Mass.  44. 
127  Mass.  546. 
133  Mass.  441. 


134  Mass.  377,  567. 
137  Mass.  274. 
1S5  Mass.  306. 
186  Mass.  498. 


214  Mass.  159. 
226  Mass.  499. 
236  Mass.  105. 


Tenth,  Interest  accruing  as  damages  for  the  detention  of  money  or  33 
otherwise  may  be  declared  on,  in  addition  to  other  forms  of  pleading  34 
authorized  by  law,  by  including  in  any  count  followed  by  an  account  an-  35 
nexed  or  bill  of  particulars  the  words  "and  interest",  and  by  statmg  in  36 
the  account  annexed  or  bill  of  particulars  the  time  and  amount  for  and  37 
upon  which  interest  is  claimed  and  the  amount  of  interest  so  claimed.       38 

Eleventh,  Written  instruments  shall  be  declared  on  by  setting  out  a  39 
copy  or  such  part  as  is  relied  on,  or  the  legal  effect  thereof,  with  proper  40 
averments  to  describe  the  cause  of  action.  If  the  whole  contract  is  not  41 
set  out,  a  copy  or  the  original,  as  the  court  may  direct,  shall  be  filed  upon  42 
motion  of  the  defendant.  If  it  is  necessary  and  the  court  so  orders,  the  43 
copy  so  filed  shall  be  part  of  the  record  as  if  oyer  had  been  granted  of  a  44 
deed  declared  on  according  to  common  law.  No  profert  or  excuse  there-  45 
for  need  be  inserted  in  a  declaration.  If  the  instrument  relied  on  is  lost  46 
or  destroyed,  or  if  it  is  not  within  the  control  of  the  party  relying  on  it,  47 
the  substance  thereof,  as  nearly  as  may  be,  and  the  reason  why  a  copy  is 
not  given,  shall  be  stated. 

Twelfth,  The  condition  of  a  bond  or  other  conditional  obligation,  con- 
tract or  grant  declared  on  shall  be  set  forth.     The  breaches  relied  on 
shall  be  assigned,  and  the  performance  of  conditions  precedent  to  the 
right  of  the  plaintiff  to  maintain  his  action  shall  be  averred  or  his  reason  53 
for  the  non-performance  thereof  stated.  54 


48 
49 
50 
51 
52 


In  real  actions 
on  mortgage. 

1851,  233,  I  2. 

1852,  312,  I  2. 


Writ  and 
declaration 
in  action  of 
ejectment. 
1915,  146,  §  1. 
225  Mass.  510. 


t  Section  8.     Declarations  in  real  actions  founded  on  mortgage  titles     1 
shall  allege  the  seisin  to  be  "in  mortgage".  2 

G.  S.  129,  §  3.  R.  L.  173,  I  7.  103  Mass.  475. 

P.  S.  167,  §  3.  14  Gray, 


109. 


131  Mass.  179. 


Section  9.  In  an  action  of  ejectment  or  quare  ejecit  for  the  recovery 
of  the  possession  of  real  property  for  a  term  of  years  or  other  interest  for 
which  such  an  action  may  be  maintained,  the  action  may  be  described  in 
the  writ  as  an  action  of  ejectment,  and  a  declaration  in  general  terms, 
substantially  in  the  form  set  out  in  the  schedule  at  the  end  of  this  chap- 


Chap.  231.]  pleading  akd  pr-\ctice.  2463 

6  ter,  shall  be  sufficient ;  and,  if  the  defendant  is  wrongfully  in  possession,  it 

7  shall  not  be  material  how  he  obtained  such  possession.  The  plaintiff  shall 
S  annex  to  such  declaration  a  statement  of  the  particulars  of  his  title,  which 
9  shall  be  deemed  part  of  the  declaration,  and  the  court  may  require  him  to 

10  file  a  statement  of  such  other  particulars,  as  to  damages  claimed  or  other- 

11  wise,  as  it  deems  proper.    The  writ  need  not  contain  the  particulars  of 

12  title,  and  if  the  writ  does  not  contain  them,  they  shall  be  filed  in  the  same 

13  manner  and  the  like  provisions  of  law  shall  be  applicable  thereto  as  in  the 

14  case  of  a  declaration  in  a  personal  action. 

1  *  Section  10.     In  actions  of  tort  for  breaking  and  entering  the  plain-  Description  of 

2  tiff's  close,  the  place  of  the  alleged  trespass  shall  be  designated  in  the  Sosfi^tort 

3  declaration  by  name,  boundaries  or  other  sufficient  description.  '''°- 

1S39,  151,  §  3.  R.  L.  173,  |  8.  152  Mass.  532. 

G.  S.  129,  I  6.  13  Met.  109,  144.  157  Mass.  474. 

P.  S.  167,  §  6.  97  Mass.  416.  214  Mass.  366. 

1  *  Section  11.     In  actions  of  contract  or  of  tort,  unless  an  arrest  of  ^/Jj]*™''^" 

2  the  person  is  made  or  except  as  pro\'ided  in  section  forty-four  of  chap-  jn  writ,  un-     - 

3  ter  two  hmidred  and  twenty-three,  the  ■uTit  need  not  contain  a  declaration  iss'i,  233, 1 7. 

4  or  any  description  of  the  cause  of  action  in  which  it  is  intended  to  de-  g.^s.'  129,'  §  7." 

5  clare,  except  the  name  of  the  division  thereof;  but  if  in  such  actions  in  §§*^f,'3.°' 

6  district  courts  the  declaration  is  not  inserted  before  the  service  of  the  wTit,  r.  l.  ^"3,^9. 

7  the  defendant  shall,  upon  motion,  be  entitled  as  of  right  to  a  postpone-  J^^'Jflvg 

8  ment  for  at  least  seven  days  after  the  return  day.  9  AUen,  257. 

1  *  t  If  Section  12.     The  declaration,  unless  inserted  in  the  writ,  may  Time  of  filing 

2  be  filed  in  the  clerk's  office  on  or  before  the  return  day  of  the  xsTit.    In  islhUs!'' 

3  an  action  or  suit  in  which  there  has  been  an  attachment  of  property  or  fijl  ^^{2. 

4  an  injunction  restraining  the  transfer  or  encumbering  thereof,  a  copy  of  ||^' ®-4o  §  j 

5  the  declaration  and  bill  of  particulars,  when  such  bill  is  necessary,  or,  in  g.  s.  129, 

6  equity,  of  the  bill  or  petition,  shall  be  furnished  to  the  defendant  or  his  186^2, 20,  §2. 

7  attornev  within  three  davs  after  a  written  demand  therefor  upon  the  §§8,9.'' 

8  plaintiff"  or  his  attorney,  and  in  case  of  failure  so  to  do,  the  cause  may,  1S94,'  405.' 

9  upon  motion,  be  dismissed  with  costs.  R.  l-  i"3,  §§  10, 11. 

1919,  333,  I  36.  7  Grav,  409.  167  Mass.  472. 

1920,  2.  1  .-Ulen,  273.  228  Mass.  429. 

1  *t  Section  13.    If  the  plaintiff  fails  to  enter  his  'nTit,  or  if  he  fails  Non-cnto-and 

2  either  to  insert  a  declaration  in  the  T\Tit  or  to  file  it  in  the  clerk's  office  1727-8, '16,  §  2. 

3  on  or  before  the  retiu-n  day  of  the  writ,  the  action  may  at  any  time,  upon  lUt-l]  I]  1 1 

4  motion  of  the  defendant,  be  dismissed  with  costs;    but  the  court  may  r'^I'Ij.^j'!^^- 

5  upon  terms  allow  the  plaintiff,  at  any  time  before  the  next  regular  return  i|5i.  233, 1 13. 

6  day,  to  enter  his  vmit  and  file  his  declaration.  is54, 440,  §  1. 

G.  S.  120,  §  12;  R.  L.  173,  §  11.  136  Mass.  421. 

129,  5  9.  1917,  326.  153  Mass.  104. 

P.  S.  155,  §  23;  11  Cusli.  315.  160  Mass.  24. 

167.  §  9.  1  Grav,  446.  167  Mass.  472. 

1885,  3S4,  I  6.  9  Allen,  257.  204  Mass.  55. 

1893,  396,  §  19.  110  Mass.  56.  217  Mass.  213. 

1894,  405.  123  Mass.  318.  228  Mass.  429. 

1  *  Section  14.     If  one  of  the  common  counts  is  used,  the  plaintiff  shall  ™  °J„,„„. 

2  file  a  bill  of  particulars  with  his  WTit  when  it  is  entered.     The  items  in  such  issi.  2.33.  '|  4. 

3  bill  shall  be  numbered  consecutively,  and  the  bill  shall  be  a  part  of  the  g.^s.'  129,'  1 16. 

4  declaration  and  be  answered  as  such. 

p.  .'i.  167.  §  10.  3  Gray,  263.  1  Allen,  273.  105  Mass.  21. 

R.  L.  173,  I  12.  12  Gray,  222.  100  Mass.  152.  225  Mass.  3. 


2464 


PLE^VDING   .iND  PRACTICE. 


[Ch.\p.  231. 


Demurrers. 

^ib\T-2^x\  30.      *  t  Section  15.     Either  party  may  demur  to  the  pleadings  of  the  ad- 
a^l.'  129.'  I  2°;  verse  party,  but  no  mere  defects  of  form  in  the  declaration  or  in  the 
subsequent  pleadings  shall  be  assigned  as  causes  for  demurrer.     If  the 
adverse  party  does  not  amend  the  pleadings  demurred  to,  he  shall  be 
held  to  have  joined  in  demurrer. 


p.  S.  167 
R.  L.  173.  §  13 
97  Mass.  502. 
13S  Mass.  441. 


Demurrer 
to  the 
declaration. 


*  t  Section  16.    The  defendant  may  demur  to  the  declaration  or  to  one    1 
or  more  counts  therein,  and  shall  assign  specifically  the  causes  of  demurrer.     2 


1S51,  233,  §  26. 
1852.  312,  §  17. 
G.  S.  129,  §  11. 
P.  S.  167,  6  11. 
R.  L.  173, 1  14. 
12  Gush.  483. 

7  Gray,  479. 

8  Gray,  161. 
11  Gray,  170. 
15  Gray,  184. 


1  Allen,  560. 

2  Allen,  105. 
6  Allen.  417. 

8  Allen,  355. 

9  Allen,  332. 

11  AUen,  283. 

12  AUen,  98. 
97  Mass.  30. 

111  Mass.  213. 

112  Mass.  90. 


119  Mass. 
122  Mass. 
125  Mass. 
144  Mass. 
151  Mass. 
156  Mass. 
163  Mass. 
177  Mass. 
223  Mass. 
230  Mass. 


387. 
163. 
360. 
523. 
567. 
202. 
402. 
466. 
386. 
483. 


the™^wcr*°          *  t  Section  17.     The  plaintiff  may  demur  to  the  answer  or  to  so  much  1 

1I52;  312!  I  20!  thereof  as  applies  to  one  or  more  coimts  in  the  declaration,  and  shall  2 

G.s.  129,  §24.  assign  specificaU J' the  causes  of  demurrer.                 p.  s.  i67,  §25.  3 

R.  L.  173,  §  15.  6  Gray,  233.  97  Mass.  502.  124  Mass.  364. 


Causes  for 
demurrer. 
1S51.  233, 
§§31,40. 
1852.  312, 
§§  21,  30. 
G.S.  129.  §12. 
P.  S.  167.  §  12. 
R.  L.  173,  §  16. 

12  Gush.  483. 

13  Gray,  64. 


*  t  Section  18.  Demurrers  may  be  for  the  following  as  well  as  other 
causes : 

First,  That  a  count  in  contract  and  a  count  in  tort,  or  that  a  comit 
in  the  plaintiff's  o'wii  right  and  a  count  in  some  representative  capacity, 
are  improperly  joined  in  the  declaration;  or  that  a  declaration  in  con- 
tract or  in  tort  is  inserted  in  a  ^\Tit  of  reple\'in. 

97  Mass.  30.  133  Mass.  29S.  209  Mass.  552. 


4  Gray,  444. 

8  Gray,  161. 

12  Gray,  222. 

13  Gray,  64. 
6  Allen,  230. 

9  Allen,  332. 


6  Gray,  233. 
6  Allen,  406. 


16  Gray,  125. 
1  Allen.  193. 
6  Allen,  417. 
8  Allen,  355. 
100  Mass.  195. 
109  Mass.  481. 
114  Mass.  487. 
118  Mass.  380. 
156  Mass.  262. 


Certificate. 
231  Mass.  404. 


Second,  That  the  matters  contained  in  the  declaration  or  in  some  count  7 
thereof  are  insufficient  in  law  to  enable  the  plaintiff  to  maintain  his  8 
action.  9 

112  Mass.  237.  179  Mass.  169.  210  Mass.  214.  223  Mass.  159. 

Tliird,  That  the  matters  contained  in  the  answer  are  insufficient  in  law  10 
to  constitute  a  defence  to  the  action  or  to  some  count  in  the  declaration.  11 

Fourth,  That,  in  some  particular  or  particulars  specifically  pointed  12 
out,  the  declaration  or  some  count  thereof  does  not  state  a  cause  of  ac-  13 
tion,  or  the  answer  does  not  state  a  defence  to  the  declaration  or  some  14 
count  thereof,  substantially  in  accordance  -nith  the  rules  contained  in  15 

this  chapter.  177  Mass.  466.  16 

179  Mass.  169.  223  Mass.  159.  225  Mass.  3.  235  Mass.  503. 

The  attorney,  if  any,  shall  certify  upon  the  demurrer  that  he  is  of  17 
opinion  that  there  is  such  probable  ground  in  law  therefor  as  to  make  it  18 
a  fit  subject  for  judicial  inquiry,  and  that  it  is  not  intended  merely  for  19 
delaA'.  '  20 


demuJrer.^  '^'  *  t  Section  19.  If  a  dcmurrcr  has  been  sustained,  overruled  or  Avith-  1 
1852,  111  I  23:  drawn,  the  court  shall  make  an  order  relative  to  the  filing  of  an  answer  2 
G.  s.  129, 1 64.  oj.  replication  or  a  trial  of  the  facts.  p.  s.  16-,  §  07.  3 

R.  L.  173.  §  17.  2  .\llen,  130.  217  Mass.  507. 

7  Gray,  425.  103  Mass.  402.  235  Mass.  304. 


Ch.\.P.  231.]  PLEADING   AND   PRACTICE.  2465 

Ansicers,  Replications,  etc. 

1  *  t  Section  20.    A  defence  to  a  real,  personal  or  mixed  action,  which  Answer  in 

2  formerly  might  have  been  made  by  plea  in  abatement,  may  be  made  by  isli?"!?,  1 37. 

3  answer  in  abatement.  i852, 312,  §  27.  g.  s.  129,  §  is. 

p.  S.  167,  5  13.  4  Grav.  84.  105  Mass.  208. 

R.  L.  173.  §  18.  7  Gray,  3S.  338.  121  Mass.  597. 

12  Pick.  569.  10  Gray,  373.  128  Mass.  600. 

12  Met.  266.  12  Grav,  347.  143  Mass.  413. 

11  Gush.  89.  1  Allen,  529.  150  Mass.  650. 

2  Gray,  2S8.  12  Allen,  134.  163  Mass.  262. 

1  *  t  Section  21.     If  an  answer  in  abatement  is  overruled  on  demurrer.  Answering 

2  or  if,  in  consequence  of  such  answer  in  abatement,  the  plaintiff  amends,  isli',  233,  §  39. 

3  the  defendant,  within  such  time  as  the  court  orders,  shall  in  a  personal  c^i'iM'.tu.' 

4  action  answer,  and  in  a  real  or  mixed  action  plead,  to  the  merits.  r.l.  n3,\"9. 

1  *  t  Section  22.     In   personal   actions,    the   defendant   shall   file   an  Answerer 

2  answer  to  the  declaration.     In  real  and  mixed  actions,  he  may  plead  the  is3"273!'h. 

3  general  issue,  and  may  give  in  evidence  thereunder  all  matters  which  he  Hm!  312!  |  12! 

4  might  formerly  have  pleaded  in  bar.       c.s.  129,  §15.       p.  s.  ig7,  §§  is,  90. 

1886,  64.  R.  L.  173,  §  20.  4  Gray,  53.  123  Mass.  187. 

1893,  396,  §  23.  19  Pick.  455.  6  Grav.  107.  132  Mass.  105. 

1S94.  431.  12  Met.  154.  6  Allen,  28.  203  Mass.  576. 

1  *  t  Section  23.     Two  or  more  defendants  making  the  same  defence  joint  answer. 

2  may  answer  or  plead  jointly.     Different  consistent  defences  may  be  llll',  sil  §  Ik 

3  separately  stated  in  the  same  answer  or  plea.  g.  s.  129,  §  le. 

p.  S.  167,  §16.  R.  L.  173,  §22.  11  Gray,  15.  3  Allen,  69. 

1  Section  24.     A  case  taken  to  the  superior  court  upon  appeal  from  pleadings  on 

2  the  judgment  of  a  district  court  may  be  there  tried  upon  the  issue  joined  r!''^s5,  §  12. 

3  below;  or  the  superior  court  may  order  the  defendant  to  answer  or  plead  p- 1- 11°'  1 1|- 

4  in  the  usual  manner,  and  the  case  shall  then  be  tried  upon  such  issue  as  |*^^-  ^^^- 1  ^2- 

5  may  be  joined  therein. 

1917, 326.  9  Gray,  361.  126  Mass.  399.  177  Mass.  397. 

1  Met.  309.  6  Alien,  25.  128  Mass.  600.  200  Mass.  194. 

1  *  Section  25.    The  answer  shall  deny  in  clear  and  precise  terms  every  Answer. 

2  substantive  fact  intended  to  be  denied  in  each  count  of  the  declaration  {HI'.  III'.  |  14! 

3  separately,  or  it  shall  declare  the  defendant's  ignorance  of  the  fact,  so  pfiol'li?' 

4  that  he  can  neither  admit  nor  deny  but  leaves  the  plaintiff  to  prove  it.     ^J^-  "^^„^  2*- 

3  Grav,  261.  5  Allen,  299,  599.  119  Mass.  376.  "^' 

4  Gray,  444.  6  Allen,  10.  123  Mass.  572,  574. 

5  Gray,  457,  541.  10  Allen,  18,  460.  124  Mass.  457. 
7  Gray,  184,  267.  11  Allen,  523.  125  Mass.  562. 

9  Gray,  73,  241.  13  Allen,  521.  126  Mass.  399. 

10  Gray,  212.  98  Mass.  222.  129  Mass.  50,  185. 

11  Gray,  12,  384.  100  Mass.  216.  132  Mass.  105. 

12  Gray,  45.  101  Mass.  352.  137  Mass.  60. 

15  Gray,  87.  105  Mass.  212.  145  Mass.  226. 

16  Cray,  354.  100  Mass.  5.59.  199  Mass.  418. 
1  .\llen,  410,  412.  112  Mass.  405.  209  Mass.  456. 
4  Allen,  380.  577. 

1  *  Section  26.    In  answering  the  common  counts  and  the  count  on  an  Answers  to 

2  account  annexed,  the  defendant  shall  answer  specifically  every  item  con-  uem3?Hc. 

3  tained  in  the  bill  of  particulars  or  account  annexed,  but  he  may  make  one  Hlh'  312'  I  is' 

4  and  the  same  allegation  or  denial  relative  to  any  number  of  items  to  pil'iy'hi- 

5  which  such  allegation  or  denial  is  apphcable,  specifying  the  number  of  the  k-  h  i"3',^§  25. 

6  items  thus  answered  together,  if  less  than  the  whole.     If  the  defendant  16  Gray,  354. 

7  denies  that  an  item  is  due  or  payable,  or  tliat  he  owes  the  plaintiff  as  9  AUe";  357! 


2466 


PLEADING   AND   PRACTICE. 


[Chap.  231. 


alleged,  lie  shall  state  all  the  substantive  grounds  on  which  he  intends  8 

to  rest  such  denial,  and  shall  specify  whether  the  whole  or  a  part  of  9 

such  item  or  demand  is  denied,  and  if  a  part  only  is  denied,  he  shall  10 

specify  such  part.  11 


tiafden'ia^ '""^"      *  SECTION  27.     A  denial  by  answer,  afRda^-it  or  otherwise  of  a  time,  1 

1852'  312'  1 16'  amount,  quantity  or  place  alleged  shall  declare  whether  it  is  applicable  2 

F'i'iif'iii'  **^  every  time,  amount,  quantity  or  place  or  not;  and  if  not,  what  time,  3 

R.  L.  173, 1 26.  amount,  quantity  or  place  it  admits.  4 


Answer  in 
avoidance. 

1851,  233.  I  27. 

1852.  312,  §  IS. 
G.  S.  129,  §  20. 
P.  S.  167,  §  20. 
R.  L.  173.  §  27. 
2  Gray.  621. 

4  Gray,  50, 
447. 


*  Section  28.  An  answer  shall  state  clearly  and  precisely  each  sub- 
stantive fact  intended  to  be  relied  upon  in  avoidance  of  the  action,  and 
if  it  sets  up  the  statute  of  limitations,  the  statute  of  frauds  or  any  other 
legal  bar,  the  defendant  shall  have  the  benefit  of  such  defence  although 
the  answer  does  not  deny  the  facts  set  forth  in  the  declaration. 


5  Gray.  457,  541. 

6  Gray.  288,  494. 

11  Gray,  12,  179. 

12  Gray,  345. 

13  Gray,  157. 

2  .-Ulen,  18. 

3  .Ulen,  99, 
287,  319,  471. 

5  Allen,  299,  317. 

7  Allen,  61,  141. 

10  Allen,  IS,  460. 

11  Allen,  523,  625. 

12  Allen,  419. 
99  Mass.  194. 
106  Mass.  51. 
109  Mass.  397. 


111  Mass. 

112  -Mass. 

113  Mass. 

116  Mass. 

117  Mass. 

119  Mass. 

120  Mass. 

121  Mass. 

123  Mass. 

124  Mass. 

125  Mass. 

127  Mass. 

128  Mass. 
131  Mass. 

133  Mass. 

134  Mass. 


285. 

387. 

250,  531. 

547,  550. 

14. 

187. 

209. 

501. 

572,  574. 

284. 

417,  562. 

316. 

25. 

283. 

439. 

377. 


135  Mass 

99. 

139  .Mass 

110. 

141  Mass 

587. 

143  Mass 

379. 

145  Mass 

370. 

151  Mass 

5,  275. 

160  Mass 

296. 

162  Mass 

34. 

165  Mass 

501. 

166  Mass 

202. 

182  Mass 

360. 

192  Mass. 

326,  391 

199  Mass 

418. 

201  Mass 

469. 

236  Mass. 

90. 

Signatures  ad- 
mitted unless 
genuineness 
is  denied. 
1S77,  163. 
P.  S.  167,  §  21. 
R.  L.  173,  §  86. 
5  Gush.  74. 
14  Gray,  109. 
125  Mass.  446. 
129  Mass.  596. 


*  ^  Section  29.     A  signature  to  an  instrument  declared  on  or  set  1 

forth  as  a  cause  of  action  or  as  a  ground  of  defence  or  set-off  shall  be  2 

taken  as  admitted  unless  the  party  sought  to  be  charged  thereby  files  in  3 

court,  within  the  same  length  of  time  after  such  instrument  is  pleaded  as  4 

is  allowed  for  an  answer,  a  specific  denial  of  the  genuineness  thereof  and  5 

a  demand  that  it  shall  be  proved  at  the  trial.  6 


133  Mass.  356. 
136  Mass.  248. 
138  Mass.  347. 


146  Mass.  378. 
196  Mass.  254. 
201  Mass.  103,  543. 


203  Mass.  526. 

233  Mass.  154. 

234  Mass.  13. 


Representative 
or  corporate 
capacity 
admitted,  un- 
less, etc. 
1881,  113. 
P.  S.  167,  §  87. 
R.  L.  173,  §  123. 
133  Mass.  358. 
160  Mass.  1. 
225  Mass.  525. 


*  t  §  1 1  Section  30.    If  it  is  alleged  in  any  civil  action  or  proceeding  1 

that  a  party  is  an  executor,  administrator,  guardian,  trustee,  assignee,  2 

conservator  or  receiver  or  is  a  corporation,  such  allegation  shall  be  taken  3 

as  admitted  unless  the  party  controverting  it  files  in  court,  within  the  4 

time  allowed  for  the  answer  thereto,  or  within  ten  days  after  the  filing  of  5 

the  paper  containing  such  allegation,  a  special  demand  for  its  proof.  6 


Equitable 
defences. 
1883,  223,  5  14. 
R.  L.  173,  I  28. 
1913,  307. 

140  Mass.  63. 

141  Mass.  440. 


*t  §  II  Section  31.     The  defendant  may  allege  in  defence  any  facts  1 

which  would  entitle  him  in  equity  to  be  absolutely  and  unconditionally  2 

relieved  against  the  plaintiff's  claim  or  cause  of  action  or  against  a  judg-  3 

ment  recovered  by  the  plaintiff  in  such  action.              149  Mass.  275.  4 


150  Mass.  27. 
154  Mass.  389. 
158  Mass.  313. 
170  Mass.  526. 
177  Mass.  455. 
179  Mass.  451. 


181  Mass.  371. 

183  Mass.  30,  351,  557. 

186  Mass.  244. 

187  Mass.  72. 
192  Mass.  511. 
196  Mass.  319. 


149  Mass.  275. 

19S  Mass.  212. 
218  Mass.  324. 
221  Mass.  317. 
228  Mass.  556. 

233  Mass.  55. 

234  Mass.  584. 


tos't^ents,  *  Section  32.     Instruments  relied  on  in  an  answer  or  in  a  subsequent     1 

issifm^l^.    pleading  shall  be  set  out,  or  copies  or  the  originals  filed,  in  the  manner    2 
1852, 312,  §  2.    provided  for  declaring  thereon  in  the  eleA^enth  clause  of  section  seven.  3 


G.  S.  129,  §  21. 


p.  S.  167,  §  22. 


R.  L.  173,  §  29. 


11  Gray,  179. 


171  Mass.  492. 


Ch.\P.  231.]  PLEADING   .VND   PKA.CTICE.  2467 

1  *  Section  33.     If  a  conditional  oblisation,  contract  or  grant  is  relied  Conditional 

n  •  1  1         1-  1  !•    •  1      11  I  •  obligations, 

2  on  in  an  answer  or  subsequent  pleading,  the  condition  shall  be  considered  *f'=- .'^'i"' 

3  a  part  of  the  instrument,  and  similar  averments  shall  be  required  in  plead-  issi,  2.33.  §  2. 

4  mg  on  the  same  as  are  reqmred  by  the  twelfth  clause  of  section  se^•en.      g.  s."  129.'  §  22. 

p.  S.  167,  I  23.  R.  L.  173,  §  30. 

1  *  Section  34.     The  plaintiff  may,  at  any  time  before  trial,  file  a  repli-  fsg^i'lag""- 

2  cation  to  the  answer,  clearly  and  specifically  stating  any  facts  in  reply  to  flgo^'s^i,'  s  jg 

3  new  matter  therein;  but,  except  as  herein  pro\aded,  no  further  pleading  g-  s.'  129,' §  23.' 

4  shall  be  required  after  the  answer.     Any  new  matter  in  avoidance  of  the  R.  l.  173,  §  si. 

5  action  which  the  answer  contains  shall  be  considered  to  be  denied  by  7  aE.  239. 

6  the  plaintiff  without  a  replication,  unless  the  court,  upon  motion  of  the  Jos'^mTs's^Ii.' 

7  defendant,  requires  him  to  reply  thereto,  and  to  state  what  part,  if  any,  J33  jj^g^-  Hg 

8  he  admits  or  denies.  i36  Mass.  sse.  177  Mass.  455. 

192  Mass.  468.  20S  Mass.  528.  210  Mass.  581.  224  Mass.  226. 

1  *  t  §  li  Section  35.     The  plaintiff  may,  in  reply  to  a  defence  alleged  by  Equitable 

2  the  defendant,  allege  any  facts  which  would  in  ecjuity  a\-oid  such  defence  of  drfmcl 

3  or  wliich  would  entitle  the  plaintiff'  to  be  absolutely  and  unconditionally  R^t  n|;  | If. 

4  relieved  in  equity  against  such  defence.  i9i8, 257, 1 430. 

1919,  5.  161  Mass.  91.  196  Mass.  319. 

1920,  2.  186  Mass.  244.  210  Mass.  581. 

1  *  Section  36.     An  answer  or  replication  may  allege  facts  occurring  Supplemental 

2  after  the  commencement  of  the  action,  and  the  court  may  allow  a  sup-  ^j';?''"'''*'™' 

3  plemental  declaration,  answer  or  replication  to  be  filed,  alleging  material  1I52',  lil',  |  It". 

4  facts  which  occurred  or  came  to  the  knowledge  of  the  party  after  the  pfll?' |||" 

5  former  declaration,  answer  or  replication  was  filed.  R.  l.  173,  §  33. 

U  Gray,  14.  106  Mass.  51.  162  Mass.  300.  207  Mass.  312. 

1 


*  Section  37.     A  party  may  allege  a  fact  or  title  alternatively. 

Alternative 

1851,  233,  §  35.                              P.  S.  167,  §  27.                               125  Mass.  417. 

1852,  312,  §  25.                              R.  L.  173,  §  34.                               ISl  Mass.  371. 
G.  S.  129,  §  26. 

a  V  cl  iiicliLa, 

1  *  Section  38.     The  allegations  and  denials  of  each  party  shall  be  so  Construction 

2  construed  by  the  court  as  to  secure  as  far  as  possible  substantial  pre-  i83'if233!^i'36. 

3  cision  and  certainty  and  to  discourage  vagueness  and  loose  generalities.  g.^I."  129,' 1 1?! 

4  A  substantive  fact  alleged  with  substantial  precision  and  certainty  and  rl\73  §35 

5  not  denied  in  clear  and  precise  terms  shall  be  held  to  be  admitted.     No  I  S'^y'S??- 

^  1      11    1  •        1  -1  ,.      ,  ,  3  Gray,  261, 

0  party  shall  be  required  to  state  evidence,  or  to  disclose  the  means  by  342. 

7  which  he  intends  to  pro^'e  his  case.  7  Gray,  isi,  267.  '^'^^'    ' 

9  Gray,  73.  4  Allen.  380.  100  Mass.  216.  131  Mass.  283. 

15  Gray,  87.  7  .^len,  361.  116  Mass.  515.  135  Mass.  99. 

1  *  t  Section  39.     A  personal  action  shall  be  considered  at  issue  when  Action, 

2  the  pleadings  are  closed,  and  a  real  or  mixed  action  when  the  plea  is  filed.  TssiJIss.Tli. 

1852,  312,  §  31.  P.  S.  167,  §  29.  122  Mass.  431. 

G.  S.  129,  §  28.  R.  L.  173,  §  36. 

practice. 
«    Interpleader. 

1  *  Section  40.     If,  in  an  action  at  law,  the  defendant  admits  liability,  interpleader 

2  and  the  amount  thereof  is  not  disputed,  but  it  appears  that  such  amount  J'ssufilL'""' 

3  is  claimed  by  the  husband  or  wife  of  the  plaintiff  or  by  any  person  other  f^Wst'.  lol' 

4  than  the  plaintiff  and  that  the  defendant  has  no  interest  in  the  subject  J5^  Hm  *lg 


2468 


PLE.U)ING  .\ND   PRACTICE. 


[Ch.\p.  231. 


188  Mass.  299. 

211  Mass.  28. 

212  Mass.  S34. 

213  Mass.  531. 
223  Mass.  177, 
237. 

225  Mass.  247. 
227  Mass.  41. 
232  Mass.  124. 
234  Mass.  224. 


matter  of  the  controversy,  the  court  may,  on  petition  of  the  defendant,  5 

stating  the  names  and  residences  of  all  known  claimants  and  the  amount  6 

actually  due  from  the  defendant,  and  after  such  notice  as  the  com-t  shall  7 

order  to  the  plaintiff  and  to  such  claimants,  order  such  claimants  to  be  8 

made  defendants,  and  shall  thereupon  hear  and  determine  the  rights  of  9 

the  respective  parties  in  and  to  said  amount.     The  defendant  may  hold  10 

such  amount  until  final  judgment,  and  shall  then  pay  it  over  as  the  court  11 

orders,  or  he  may  pay  it  into  court  to  await  final  judgment,  and  there-  12 

upon  the  action  shall  be  discontinued  as  to  him,  his  liability  for  said  13 

amount  shall  cease,  and  Ms  costs  shall  be  in  the  discretion  of  the  court,  14 

and  may  be  charged  upon  the  fund.  15 


Interpleader 
by  bailee  or 
pledgee. 
1899,  352. 
R.  L.  173,  I ; 
1907.  582,  I  : 

1909.  227. 

1910,  214,  § 
1913,228. 

1917,  326. 

1918,  257, 
§  409. 

1919,  5. 

1920,  2. 


*  Section  41.  Wlienever  two  or  more  persons  claim  any  interest  in 
property,  or  the  proceeds  or  value  of,  or  damages  for  the  taking,  deten- 
tion or  conversion  of,  any  property  deposited  with  any  public  warehouse- 
man, or  other  depositary  for  hire,  or  with  any  pledgee  as  security  for  a  loan, 
such  bailee  or  pledgee  may,  either  in  any  action  against  him  for  the  re- 
covcTy  of  such  property,  or  for  such  proceeds,  value  or  damages,  or  as  an 
original  suit  brought,  if  in  the  superior  court,  in  the  county,  or  if  in  a  dis- 
trict court,  in  the  judicial  district,  where  such  property  is  situated  or  was  8 
last  held  by  such  bailee  or  pledgee,  file  a  petition  stating  the  names  and  9 
residences  of  all  kno\\Ti  claimants.  After  such  notice  as  the  court  may  10 
order  upon  the  petition  to  all  such  claimants,  and  within  such  time  after  11 
the  return  of  such  order  of  notice  as  the  court  shall  allow,  such  claimants  12 
shall  file  in  said  court  WTitten  statements  of  their  se^■eral  claims,  and  any  13 
claimant  failing  to  file  such  claim  may  be  defaulted.  The  court  shall  14 
hear  and  determine  the  rights  and  interests  of  the  respective  parties  in  15 
and  to  such  property,  proceeds,  value  or  damages,  and  shall  enter  judg-  16 
ment  accordingly,  and  upon  such  final  judgment  may  order  such  return  17 
or  delivery  of  the  property,  and  award  such  execution  or  executions  for  18 
damages  or  costs  or  both  for  or  against  the  respective  parties  as  jus-  19 
tice  requires.  Failure  to  comply  with  any  such  order  for  the  return  or  20 
deliverj^  of  such  property  may  be  dealt  with  as  the  court  directs.  The  21 
goods  may  remain  in  the  custody  of  the  bailee  or  pledgee  until  final  judg-  22 
ment,  and  shall  then  be  delivered  as  the  court  orders.  If  the  petition  23 
herein  pro\-ided  for  be  filed  in  an  action  of  repleAin,  any  order  for  the  24 
return  of  the  property  replevied,  or  any  part  thereof,  may  be  for  its  return  25 
to  such  party  to  the  proceedings  as  is  adjudged  entitled  to  possession  26 
thereof;  and  if  the  order  is  not  compUed  with,  the  bond  in  such  case  may,  27 
by  leave  of  said  court,  be  put  in  suit,  in  the  name  of  the  obligee  therein,  28 
but  for  the  benefit  of  the  party  entitled  to  said  property,  and  in  such  suit  29 
the  court  may  award  judgment  and  execution  in  accordance  with  the  30 
respective  interests  of  the  parties  thereto.  31 


Endorsement 
of  writs,  etc., 
before  entry. 
C.  L.  7,  §  1. 
1708-9,  3,  §  1. 
1714,3,  §  1. 
1728-9,  1. 
1784,  28,  §  11. 
1S33,  50, 
§§2,5. 
K.  S.  90, 
5§  10,11:99, 
I  29;  100,  §  28; 
103,  §73;  112, 
§24:117,  §36. 


Endorsement  of  Process. 

*  t  IT  Section  42.     Original  wrhs,  ^Tits  of  audita  querela,  writs  of  1 

scire  facias  by  private  persons  on  judgment  or  recognizance,  WTits  of  2 

error  in  civil  cases,  writs  of  and  petitions  for  re\'iew,  petitions  for  certiorari  3 

or  mandamus  and  bills  in  equity,  in  wliich  tihe  plaintiff  is  not  an  inliab-  4 

itant  of  the  commonwealth,  shall,  before  the  entry  thereof,  be  endorsed  5 

by  a  responsible  person  who  is  such  inliabitant ;  but  if  one  of  the  plain-  6 

tiffs  is  such  an  inliabitant,  the  process  need  not  be  so  endorsed.     E^ery  7 

endorser,  in  case  of  avoidance  or  inability  of  the  plaintiff",  shall  be  liable  8 


14  Pick.  212, 

12  Grav,  190. 

183  Mass.  102. 

3  Met.  5S. 

1  .^llen.  270,  402. 

198  Mass.  544. 

8  Met.  140. 

5  .\llen,  200. 

213  Mass.  601, 

8  Cush.  98. 

138  Mass.  115. 

230  Mass.  28. 

11  Cush.  89. 

142  Mass.  141, 

233  Mass.  1. 

CH-^P.  231.]  PLE.\DING   AND   PR.\CTICE.  2469 

9  to  pay  all  costs  awarded  against  the  plaintiff  if  an  action  therefor  is  g.  s.  123,  §  20; 
10  commenced  within  one  year  after  the  original  judgment.  §  37;  156.  §  42. 

p.  S.  161,  §  24; 
178,  §  6;  187. 
§  38;  191.  §  14. 
1895,  234,  §  26. 
R.  L.  173,  §  39. 
6  Mass.  494. 

1  *  t  H  Section  4.3.     If  a  plaintiff,  not  an  inhabitant  of  the  common-  same  after 

2  wealth,  fails,  by  accident,  mistake  or  inadvertence,  to  have  his  writ,  bill  i'805!'45,  §  1. 

3  or  petition  endorsed  as  required  by  the  preceding  section,  the  court  may  r.  L.173,  §40. 

4  at  any  stage  of  the  case,  upon  terms,  allow  him  to  procure  an  endorser 

5  with  the  same  effect  as  if  the  writ,  bill  or  petition  had  been  endorsed 

6  before  the  entry  thereof. 

1  *  t  U  Section  44.     If,  after  the  commencement  of  a  proceeding  men-  Endorser  upon 

2  tioned  in  section  forty-two,  the  plaintiff  removes  from  the  commonwealth,  pStiff."' 

3  the  court,  upon  motion  of  any  other  party,  shall,  and  of  its  own  motion  jf ^|'  |q'  |  jj,. 

4  may,  require  the  plaintiff  to  procure  a  responsible  endorser.  J0°4  ^  ^*'  ^'"' 

0.  S.  129,  §29.  R.  L.173,  §41.  8  Cush.  98  99  Mass.  460. 

P.  S.  167,  §  30.  21  Pick.  212.  1  Gray,  lOS.  213  Mass.  601, 

1  *  t  IT  Section  45.     If  an  endorser  removes  from  the  commonwealth  or  Endorser  re- 

2  ceases  to  be  responsible,  the  court  may  require  the  plaintiff"  to  procure  Tnotlfer'  "^ "' 

3  a  responsible  endorser.  i7S4, 2s,  i  ii.  required. 

1833,  50,  §  3.  G.  S.  129,  §  30.  R.  L.  173,  §  42. 

R.  S.  90,  §12.  P.  S.  167,  §31.  17  Mass,  222. 

1  Section  46.     The  supreme  judicial  court  may  require  an  endorser  or  Endorser  in 

2  security  for  the  paj-ment  of  costs  in  a  probate  or  insolvency  case  or  pro-  et°.  ""^  '"^^''^' 

3  ceeding  pending  therein. 

1846,  234.  G.  S.  129,  §  31.  P.  S.  167.  §  32.  R.  L.  173,  §  43. 

1  *  t  IT  Section  47.     If  a  plaintiff  fails  to  procure  an  endorser  according  Dismissal  for 

2  to  the  order  of  the  court,  his  action  shall  be  dismissed  and  the  defendant  cure  endoSe?^ 

3  or  other  party  shall  recover  his  costs.         i7S4, 28,  §  ii.  i833, 50,  §  a. 

R.  S.  90,  §  13.  G.  S.  129,  §  32.  P.  S.  167,  §  33.  R.  L.  173,  §  44. 

1  *  t  If  Section  48.     The  court  may  permit  the  name  of  an  endorser  to  Substitute 

2  be  stricken  out  and  a  new  and  responsible  endorser  substituted.     Every  i784,Ts,§  u 

3  endorser  shall  be  liable  for  costs  from  the  commencement  of  the  action,  i^^l.'go,' 

G.  S.  129,  §  33.  R.  L.  173,  §  45.  7  Mass.  25.  12. 

P.  S.  167,  §  34.  6  Mass.  494.  13  Mass.  422. 


5. 
I  11. 


Abatement. 

1  *  t  §  Section  49.     No  WTit,  process,  action,  declaration  or  other  pro-  No  abatement 

2  ceeding  in  the  courts  or  course  of  justice  shall  be  abated,  arrested,  quashed  tS  er™."!^  ""' 

3  or  reversed  for  any  circumstantial  errors  or  mistakes  if  by  it  the  person  c!  h.  ?)''§  2. 

4  and  case  may  be  rightly  understood  by  the  court;  or  for  defect  or  ^\'ant  }7S4~isf'§  uV 

5  of  form  only. 

R.  S.  100,  §  21.  R.  L.  173,  §  46.  5  Cush.  74.  105  Mass.  129. 

G.  S.  129,  §  34.  2  Cush.  1,  486,  555.        7  Grav,  378.  108  Mass.  338. 

P.  S.  167,  §  35.  4  Cush.  279.  10  Allen,  537.  219  Mass.  597. 

1  *  t  Section  50.    If  an  issue  of  fact  is  found  against  the  defendant  upon  Judgment  upon 

2  a  plea  or  answer  in  abatement,  final  judgment,  subject  to  section  fifty-  isM.MstVss. 

3  three,  shall  be  rendered  against  him.  i852, 312,  §  28. 

G.  8.129,  §39.  R.  L.173,  §47.  125  Mass.  472.  152  Mass.  416. 

P.  S.  167,  §  40.  24  Pick.  49.  128  Mass.  600.  155  Mass.  26. 


2470 


PLEADING  AND   PRACTICE. 


[Ch.\p.  231, 


I  14. 

i2. 


Changing  par- 
ties, form,  etc. 
1701-2,  5,  §  1. 
1784,  28, 
1826,  70. 

1833,  194." 

1834,  189. 

R.  S.  93,  §  24; 

100,  §§  1,  B,  7, 

22. 

1836,  273,  §  3. 

1839,  151, 

§§1.2. 


Amendments. 

*  t  §  1 1  Section  51.    The  court  may,  at  any  time  before  final  judgment,  1 

except  as  otherwise  provided,  allow  amendments  introducing  a  necessary  2 

party,  discontinuing  as  to  a  party  or  changing  the  form  of  the  action,  3 

and  may  allow  any  other  amendment  in  matter  of  form  or  substance  in  4 

any  process,  pleading  or  proceeding,  which  may  enable  the  phiintiff  to  5 

sustain  the  action  for  the  cause  for  which  it  was  intended  to  be  brought,  6 

or  enable  the  defendant  to  make  a  legal  defence.  1851,233,  §42.  7 


1852,312,  §  32. 
G.S.  129,  §41. 
P.  S.  167,  §  42. 
R.  L.  173,  §  48. 

3  Mass.  208. 

4  Mass.  606. 

16  Pick.  297,  412. 

1  Met.  653. 

2  Met.  505. 

9  Met.  423. 

10  Met.  291,  S25. 
13  Met.  215,  476. 
2Cush.  1. 

4  Cush.  281. 

6  Cush.  513. 

8  Cush.  271,356. 
10  Cush.  2&4. 
12  Cush.  448. 

1  Gray,  600. 

3  Gray,  66. 

4  Gray,  194,  437. 

5  Gray,  71. 

7Gray,  41,  206,  378,  540. 

8  Gray,  447. 

12  Gray,  26,  139,  453. 

15  Gray,  186. 

lAllen,  244,  501,529. 

2  Allen,  128,  317. 

3  Allen,  69.  528,  532. 

5  Allen,  322. 

7  Allen,  202,  489. 


8  Allen,  63.  150  Mass.  564. 

10  Allen,  439.  151  Mass.  454. 

100  Mass.  122.  152.  165  Mass.  481. 

101  Mass.  378.  168  Mass.  223. 

103  Mass.  410.  170  Mass.  260,  262,  560. 

104  Mass.  345.  172  Mass.  401. 

106  Mass.  131,  338.  174  Mass.  45,  586. 

107  Mass.  64,  82.  177  Mass.  397,  404. 

108  Mass.  338,  355.  181  Mass.  445. 

112  Mass.  180.  186  Mass.  150.  365. 

114  Mass.  481.  190  Mass.  378,  554. 

115  Mass.  326.  192  Mass.  122. 

121  Mass.  562.  196  Mass.  584. 

122  Mass.  438.  200  Mass.  284. 

124  Mass.  240.  201  Mass.  10.  248. 

125  Mass.  72.  560.  204  Mass.  294. 

126  Mass.  393.  208  Mass.  293. 

127  Mass.  527,  599.  211  Mass.  277,  44C,  463. 

128  Mass.  235,  466.  212  Mass.  292. 

131  Mass.  328,  397,  560.  213  Mass.  585. 

132  Mass.  193.  215  Mass.  83,  116,  199. 

133  Mass.  421,  536.  216  Mass.  459. 

134  Mass.  280,  308.  218  Mass.  231. 

135  Mass.  189.  219  Mass.  164. 

136  Mass.  335.  221  Mass.  259,  271. 
139  Mass.  1 10,  280.  223  Mass.  450. 

143  Mass.  45.  225  Mass.  599. 

144  Mass.  383.  226  Mass.  332,  570. 

146  Mass.  378.  229  Mass.  1. 

147  Mass.  101,  342.  231  Mass.  422. 

148  Mass.  504.  236  Mass.  336. 


Amendment 
after  demurrer. 


'  t  §  1 1  Section  52.     The  court  may  allow  a  party  to  whose  pleadings     1 
litl;  sii;  I  la  ^  demurrer  has  been  filed  to  amend,  upon  terms,  within  such  time  as    2 

G.  S.  129,  §  24.    il  orders.  p.  S.  167,  §  25.  R.  L.  173,  §  49.  3 


.\mendment, 
etc.,  after 
answer  in 
abatement. 
1851,  233,  §  38 
1852,312,  I  28 
G.  S.  129,  §  40. 
P.  S.  167,  §  41. 
R.  L.  173,  §  50. 


*  t  Section  53.     If  the  defect  upon  wliich  a  plea  or  answer  in  abate-  1 

ment  is  founded  is  capable  of  amendment,  the  court  may  allow  the  plain-  2 

tiff  to  amend,  upon  terms.     The  com't  may  allow  the  defendant  to  3 

amend  an  answer  in  abatement  or  to  answer  oA'er  by  special  order  of  the  4 

court  for  good  cause  shown,  and  not  otherwise.  5 


3  Met.  420. 
108  Mass.  338. 


113  Mass.  34. 
124  Mass.  81. 


125  Mass.  472. 
155  Mass.  26. 


Joinder  of  new 
defendants. 
1833,  194. 
R.  S.  100, 
5§  2-5. 
G.  S.  129, 
§§  36-38. 
P.  S.  167, 
§§  37-39. 


*  t  Section  54.     If  a  new  defendant  is  introduced  by  amendment,  the  1 

plaintiff  may  take  out  against  liim  a  new  writ  of  capias  and  attachment  2 

or  of  summons  in  such  form,  and  retm-nable  at  such  time,  as  the  court  3 

orders.    Upon  service  and  return  of  such  new  writ,  like  proceedings  may  4 

be  had  as  if  the  person  named  therein  had  been  originally  made  a  party.  5 


R.  L.  173,  §  51. 


6  Allen,  350. 


Amendments 
changing 
actions  at  law 
into  suits  in 
equity,  and 
vice  versa. 
186.5,  179, 
§§  1.  2. 

P.  S.  167,  §  43. 
188.3,  223,  §  17. 
R.  L.  159,  §  6; 
173,  §  52. 
1911,  275. 


If  Section  55.     The  supreme  judicial  or  the  superior  court  may,  be-  1 

fore  final  judgment,  and  upon  terms,  allow  an  amendment  changing  an  2 

action  at  law  into  a  suit  in  ec^uity,  or  a  suit  in  equity  into  an  action  at  3 

law,  if  it  is  necessary  to  enable  the  plaintiff"  to  sustain  the  action  or  suit  4 

for  the  cause  for  which  it  ^\as  intended  to  be  brought.     The  court  in  5 

which  the  amendment  is  allowed  may  retain  jui-isdiction  of  the  cause  as  6 

amended.  7 


101  Mass.  37S. 
125  Mass.  138. 
133  Mass.  536. 


168  Mass.  72. 
206  Mass.  39. 
212  Mass.  292. 


216  Mass.  459. 

223  Mass.  325. 

224  Mass.  120. 


225  Mass.  699. 
233  Mass.  32. 


Chap.  231.]  PLE-u^rNG  and  practice.  2471 

1  *  t  Section  56.    The  court  in  which  a  judgment  has  been  rendered,  or  Amendment 

2  to  which  it  has  been  removed  by  ^\Tit  of  error,  may,  if  justice  so  requires  ment'"  ^ 

3  and  the  amendment  is  in  affirmance  of  the  judgment,  allow  formal  de-  im^ls^'i^c 

4  fects  or  imperfections  in  the  record  or  proceedings  to  be  corrected  or  §;  §;  J29,'  |  If. 

5  amended.  p.  s.  i67,  §  44. 

R.  L.  173,  §  53.  S  Cush.  74,  446.  104  Mass.  363. 

3  Cush.  1,  58.  10  .-Ulen,  537.  Ill  Mass.  160. 

Defaults. 

1  *  t  Section  57.     If  the  defendant  in  an  action  commenced  in  the  Defaults. 

2  supreme  judicial,  the  superior  or  the  land  coiu-t,  ha\ang  been  duly  served  lim-ij'sf  ^2. 

3  with  process,  fails  to  enter  an  appearance  in  writing  ^A^thin  twenty-one  §§*6;7.*' 

4  days  after  the  return  or  entry  day  of  the  writ,  his  default  shall  be  recorded,  ^^  ^^^^'  |.^= 

5  and  after  the  expiration  of  foiu-  days  from  such  default,  the  plaintiff  may  9|^§  ^.^^ 

6  have  judgment  entered  by  order  of  the  court  or  by  the  clerk  as  of  course  §§_i4,"'i7.' 

7  without  any  further  order.     Upon  a  default  at  any  stage  of  the  proceed-  §§  m,  ii.' 

8  ings  in  an  action  pending  in  any  of  said  courts,  the  damages  shall,  upon  i29.'§m3^5'' 

9  motion  of  either  party,  be  assessed  by  a  jmy.     If  the  defendant  in  an  isto.^Is''  ^' 

10  action  commenced  in  a  district  court,  having  been  duly  served  with  ffi7^s'f|5.!47^' 

11  process,  fails  to  appear  or  answer  thereto,  his  defaidt  shall  be  recorded  Jgsj^l^'^ssy 

12  and  judgment  shall  be  rendered  for  the  plaintiff  with  costs.     Com-ts  lo.  I'l-    ' . 

.  •  1893  396   §  19 

13  may,  for  good  cause  shown,  extend  the  time  for  entering  an  appearance,  is94',  431'. 

14  and  may,  in  their  discretion  and  upon  terms,  take  off  a  default  at  any  1917,' loi- 326.' 

15  time  before  judgment.  145  Mass.  is. 

157  Mass.  417.  168  Mass.  297.  183  Mass.  7.  198  Mass.  82. 

159  Mass.  210.  182  Mass.  20.  192  Mass.  226.  225  Mass.  189. 

1  *  t  If  Section  58.    Upon  entry  of  a  default  in  an  action  at  law  or  of  an  Notice  of 

2  interlocutory  decree  in  equity  taking  a  bill  pro  confesso,  the  clerk  of  the  decree V°o 

3  court  shall  forthwith  gi\'e  written  notice  thereof,  in  such  manner  as  the  19177227. 

4  court  by  rule  shall  direct,  to  the  attorney  of  record,  if  any,  of  each  party 

5  against  whom  such  default  or  decree  is  entered.     If  a  party  has  no 

6  attorney  of  record,  and  the  officer's  return  does  not  show  that  personal 

7  service  of  the  writ,  bill,  petition,  or  complaint,  or  order  therein,  as  the 

8  case  may  be,  has  been  made  upon  liim,  the  notice  shall  be  given  to  the 

9  party. 

Advancmg  Causes  for  Speedy  Trial. 

1  Section  59.     In  any  action  of  contract  in  wliich  the  defendant  has  Advancing 

2  appeared,  any  plaintiff",  or  if  a  corporation  its  treasurer,  may  at  any  time  speS"y  triLi. 

3  before  the  case  is  on  the  short  list,  so  called,  file  an  affida-\-it  verifying  the  '187!;  |||;  1 2: 

4  cause  of  action  and  stating  that  in  his  belief  there  is  no  defence  thereto;  ^-  \  ^f^ij.^  §j^|j 

5  and  thereupon  the  clerk  shall  issue  an  order  requiring  the  defendant  to  J-jos,  271.' 

6  show  cause  in  ^vTiting  and  on  oath  why  judgment  should  not  be  given  i9ii!  sos! 

7  for  the  plaintiff.    The  plaintiff  shall  immediately  give  written  notice  of  i9i7,'  326! 

8  such  order,  in  such  manner  as  is  prescribed  by  rule  of  court,  to  the  de-  120  Massl  97. ' 

9  fendant  or  his  attorney  of  record,  and  unless  the  defendant,  within  seven  2§,  Mass!  9a ' 

10  days  after  such  notice,  or  within  such  further  time  as  the  court  allows, 

11  consents  to  a  default  and  to  judgment  for  the  amount  demanded,  if  the 

12  claim  is  to  recover  a  debt,  or  liquidated  demand,  or  unless  by  affitlavit 

13  setting  out  specifically  and  clearly  the  substantive  facts  upon  %\hich  he 

14  relies  he  discloses  such  facts  as  the  court  finds  entitle  him  to  defend,  the 

15  court  shall  advance  said  action  for  speedy  trial;  but  if,  upon  a  hearing 

16  under  such  order  and  notice,  the  court  does  not  so  ad\'ance  the  action, 

17  it  may  award  the  defendant  reasonable  costs.     The  court  shall  require 


2472  PLEADING  AND  PRACTICE.  [ChAP.  231. 

the  defendant  to  disclose  specifically  and  clearly  the  substantive  facts  18 

upon  wliich  he  relies.     If,  in  an  action  appealed  or  ^emo^■ed  by  the  de-  19 

fendant  from  a  district  court,  the  court  is  satisfied,  upon  an  inspection  of  20 

the  declaration,  that  the  plaintiff  seeks  to  recover  solely  for  his  personal  21 

labor,  with  or  without  interest,  the  court  shall  upon  motion  ad-\-ance  such  22 

action  for  speedy  trial.     In  any  action  in  which  a  defendant  has  appeared  23 

and  answered,  such  defendant,  or  if  a  corporation  its  treasurer,  may  at  24 

any  time  before  the  case  is  on  the  short  list,  so  called,  file  an  affidavit  25 

stating  that  in  his  belief  there  is  no  merit  in  the  action;  and  thereupon  26 

the  clerk  shall  issue  an  order  requiring  the  plaintiff  to  show  cause  why  he  27 

should  not  become  nonsuit.     The  defendant  shall  immediately  give  wTit-  28 

ten  notice  of  such  order,  in  such  manner  as  is  prescribed  by  rule  of  court,  29 

to  the  plaintiff  or  his  attorney  of  record,  and  unless  within  se^■en  days  after  30 

such  notice,  or  within  such  further  time  as  the  court  allows,  the  plaintiff  31 

consents  to  a  nonsuit,  or  unless  by  affida^'it  setting  forth  specifically  32 

and  clearly  the  substantive  facts  upon  wliich  he  relies  he  discloses  such  33 

facts  as  the  court  finds  entitle  him  to  maintain  his  action,  the  court  shall  34 

advance  said  action  for  speedy  trial.    In  any  trial  any  affida^•it  filed  by  35 

any  party,  as  herein  provided,  may  be  given  in  evidence  against  him.  36 

Claim  of  Trial  by  Jury. 

Jury  trial,             ■!■  SECTION  60.     A  Separate  list  of  cases  to  be  tried  by  jury  shall  be  kept  1 

how  claimed.        .'                                   .,..',           ,                 .                                    ,                    -iii,  -, 

R.  s.  97,  §  3.     m  the  supreme  ludicial  and  superior  coiu-ts,  and  no  action  shall  be  en-  2 

1857   267    Si  r  <j  i    ^ 

G.  s.'  129,'  §  66;  tcrcd  thcrcon,  except  as  otherwise  expressly  provided,  unless  a  party,  3 

1874, 248,  §  1.    before  issue  joined,  or  within  ten  days  after  the  time  allowed  for  filing  the  4 

^.s.'iir.'ieQ;  answer  or  plea,  or  within  ten  days  after  the  answer  or  plea  has  by  consent  5 

1894,^357.         of  the  plaintiff  or  permission  of  the  court  been  filed,  or  within  such  time  6 

i3'''\iass'  Ist^'  ^^'^^^  the  parties  are  at  issue  as  the  court  may  by  general  or  special  order  7 

356             '   direct,  files  a  notice  that  he  desires  a  jury  trial;  but  in  a  case  in  wliich  8 

591.       ■    '    damages  are  demanded,  the  court  may  of  its  own  motion  refer  the  assess-  9 

156  Mass.  88.'     mcnt  thereof  to  a  jury.               leO  Mass.  370.               163  Mass.  21.               170  Mass.  1.  10 

185  Mass.  576.  195  Mass.  354.  214  Mass.  335. 

191  Mass.  223.  198  Mass.  388.  223  Mass.  537. 

Interrogatories. 

m^inTerroTa-         *  t  §  II  SECTION  61.     Auy  party,  after  the  entry  of  a  writ  or  the  filing  1 

i85i?'233,^§'9S;  of  a  bill  or  petition,  may  interrogate  an  ad\-erse  party  for  the  discovery  2 

1852  ^3l'2          ^^  facts  and  documents  admissible  in  evidence  at  the  trial  of  the  case.  3 

§§|i.90-'         The  word  "party",  in  this  section,  in  sections  sixty-two  to  sixty-five,  4 

§§46,86.'         inclusive,  and  in  section  sixty-seven,  shall  be  deemed  to  include  parties  5 

p.  s.'i5i,  §  8:    intervening  or  otherwise  admitted  after  the  beginning  of  the  suit.  6 

167,  §§  49,  93.  jgg3_  203,  §  2.  3  Allen,  110.  163  Mass.  481. 

R.  L.  159,  I  15;  5  .\llcn,  109.  171  Mass.  417. 

173.  §  57.  104  Mass.  24.  188  Mass.  30. 

1909,225.  106  Mass.  338.  205  Mass.  431. 

1913.  815.  §§  1,  S,  9.  107  Mass.  113.  206  Mass.  395. 

11  Gush.  158.  Ill  Mass.  154.  212  Mass.  69. 

2  Gray,  558.  127  Mass.  226.  214  Mass.  563. 
7  Gray,  417.                                   128  Mass.  293.  217  Mass.  488. 

14  Gray,  484.  136  Mass.  291,  386.  227  Mass.  7. 

15  Gray,  S45.  155  Mass.  433.  234  Mass.  307. 

f85iy^2'33,             *  t  §  II  Section  62.     The  answers  shall  be  in  writing,  on  oath,  and  1 

i852°1ii2'^'       signed  by  the  party  interrogated,  who  shall,  before  making  answer,  make  2 

G  s^'i29'         ^^^^  inquiry  of  his  agents,  servants  and  attorneys  as  will  enable  him  3 

§§  49, 5i!         to  make  full  and  true  answers  to  the  interrogatories.  4 

p.  S.  167,  §§  52,  54.  8  Grav,  529.  171  Mass.  417. 

R.  L.  173,  §  60.  13  .Allen,  320.  179  Mass.  501. 

1913,  815.  §§  2,  9.  109  Mass.  209.  202  Mass.  75. 

3  Gray,  215.  125  Mass.  572. 


CHjVP.  231.]  PLEADING  AND  PRACTICE.  2473 

1  *  t  §  II  Section  63.     Interrogatories  shall  be  filed  in  the  clerk's  office.  Practice. 

2  and  notice  of  such  filing,  with  a  copy  of  the  interrogatories,  shall  be  sent  If^gg.^m, 

3  by  the  party  interrogating  to  the  party  interrogated,  or  to  his  attorney  of  325,'  l°l' 

4  record.    If,  within  ten  days  after  such  notice,  or  in  a  district  court  within  ^f^^  ^H'oq 

5  such  less  time  as  the  coiu-t  may  by  general  or  special  order  direct,  the  IP'^^-^n 

6  party  interrogated  does  not  answer  the  interrogatories,  the  court  shall,  §§  46, 48',  53, 

7  upon  motion,  order  the  party  interrogated  to  answer  such  of  the  interroga-  p.'s.  167, 

8  tories  as  it  finds  proper,  within  such  time  as  it  may  fix;  but  no  party  in-  ll.lfs.^''  **^' 

9  terrogated  shall  be  obliged  to  answer  a  question  or  produce  a  document  f^  57/JI;  es. 

10  tending  to  criminate  him  or  to  disclose  his  title  to  any  property  the  title  ^^gg  ',gg.  3,5 

11  whereof  is  not  material  to  an  issue  in  the  proceeding  in  the  coiu-se  of  which  lanisos! 

12  he  is  interrogated,  nor  to  disclose  the  names  of  witnesses,  except  that  §§3,' 9. 

1017     ^'i'fi 

13  the  court  may  compel  the  party  interrogated  to  disclose  the  names  of  iic'ush.  26, 

14  witnesses  and  their  addresses  if  justice  seems  to  require  it,  upon  such  2^Gray,  sss. 

15  terms  and  conditions  as  the  court  deems  ex-pedient.    A  party  shall  not  ?5*Gray,"545. 

16  interrogate  an  adverse  party  more  than  once  unless  the  court  otherwise  |  ^{[™'  }J°- 

17  orders,  except  as  to  any  new  matters  disclosed  by  answers  to  interroga-  iw  ^ass.  24 
lb  tones  previously  nled.  111  Mass.  154. 

127  Mass.  220.  163  Mass.  481.  200  Mass.  527.  215  Mass.  591. 

128  Mass.  293.  171  Mass.  417.  205  Mass.  431.  217  Mass.  4.SS. 
136  Mass.  291,  386.        188  Mass.  30.                    212  Mass.  69.  234  Mass.  307. 

1  *  t  §  II  Section  64.     If  a  party  interrogated  fails  to  answer  interroga-  Penalty  for 

2  tories,  or  to  amend  or  expunge  an  answer  or  part  of  an  answer  as  ordered,  ans"rer,*etc. 

3  the  court  may  make  and  enter  such  order,  judgment  or  decree  as  justice  jTog.^^^' 

4  requires. 

1852,  312,  §  72.  R.  h.  159,  §  16;  173,  §  66.          125  Mass.  572. 

G.  S.  129,  I  56.  1913,  815,  §§  4,  9.  128  Mass.  293. 

1862,  40,  §  2.  7  Gray.  417.  136  Mass.  291. 

P.  S.  151,  §  9;  167,  §  59.  8  Gray,  529.  139  Mass.  98. 

1883,  223,  §  2.  14  Allen,  9.  171  Mass.  417. 

1  *  t  §  1 1  Section  65.     If  a  corporation  is  a  party,  the  adverse  party  Answers  by 

2  may  examine  the  president,  treasurer,  clerk  or  a  director,  manager  or  ™^po'^''"°n' 

3  superintendent,  or  other  officer  thereof,  as  if  he  were  a  party.     If  a  q  ^|'  fgf'  1 50' 

4  municipal  corporation  is  a  party,  the  mayor  or  the  chairman  of  the  board  S-  ?•  Wj  K^l^; 

,.       ~       ,  1  •         1  .,.  1  .         R.  L.  173,  s  61. 

5  or  selectmen  may  be  examined  as  it  he  were  a  party,  except  that  no  city  1912, 276. 

6  or  town  official  shall  be  interrogated  concerning  matters  of  public  record.  H  s.'g. 

7  If  a  minor  or  person  under  guardianship  is  a  party,  the  adverse  party  109  Mass!  212! 

8  may  examine  as  if  said  party  were  not  a  minor  or  under  guardianship;  ng Mass.' sol; 

9  provided,  that  if  the  minor  be  not  of  such  age  as  to  appreciate  an  oath.  In  Mass]  sei! 

10  or  the  person  under  guardianship  be  mentally  incompetent  to  answer,  214  Mass.  563. 

1 1  the  person  appearing  in  the  suit  as  the  guardian,  guardian  ad  litem  or 

12  next  friend  of  such  party  shall  make  answer. 

1  *  t  §  1 1  Section  66.     Such  order  may  be  made  respecting  costs,  in  Costs. 

2  the  action  or  cause  or  otherwise,  as  the  court  may  direct  by  general  rule,  I'los.^^^' 

3  or  by  a  special  order  in  each  case.  1852, 312,  §  71. 

G.  S.  129,  §  55.  P.  S.  167,  §  58.  R.  L.  173,  §  65.  1913,  815,  §§  6,  9. 

1  *  t  §  II  Section  67.    Sections  sixty-one  to  sixty-six,  inclusive,  shall  ^^^i^*^°f|^f^, 

2  not  affect  the  right  of  a  party  interrogated,  under  the  direction  of  the  parts  of  book, 

3  court,  to  seal  up  or  otherwise  protect  from  examination  such  parts  of  any  issi^  233, 

4  document,  book,  voucher  or  other  writing  as  contain  matters  not  per-  i852%i2,  §  m. 

5  tinent  to  the  subject  of  the  action,  or  aft'cct  the  power  of  the  court  to  p.'  1;  iot,'  |  55.' 

6  protect  said  right,  or  any  right  of  the  party  interrogated,  by  suitable  frii?j;  lli\  ^  *^^' 

7  order.  8  Gray,  529.  §§7,9. 


2474 


PLE.\DING  AND  PR-iCTICE. 


[Chap.  231. 


Inspection  of 
documents. 
1915,  146,  §  4. 


Inspection  of  Documents. 

*  t  §  II  Section  68.    Every  party  to  any  cause  or  proceeding  may  in-  1 

spect  and  take  copies  of  any  document  referred  to  in  tlie  pleading  or  par-  2 

ticulars  of  any  other  party  and  relied  on  by  such  other  party,  unless  the  3 

court  is  satisfied  that  the  same  is  not  in  his  possession  or  control  or  that  4 

he  has  some  other  reasonable  excuse  for  not  producing  the  same  for  such  5 

inspection,  and  the  coiu-t  may  make  orders  for  production  for  said  pur-  6 

poses,  enforceable  in  like  manner  as  orders  to  answer  interrogatories.  7 


In  certain 
actions  either 
party  may  call 
far  admission 
of  fact  or  of 
execution  of 
paper. 
1917,  194. 


Admission  of  Material  Facts  and  Documents. 

*  Section  69.  In  an  action  to  recover  the  amount  due  for  goods,  1 
wares  and  merchandise  alleged  to  have  been  sold  and  deUvered,  or  for  2 
work,  labor  and  services  alleged  to  have  been  performed,  the  plaintiff,  3 
by  written  notice  served  on  the  defendant  or  Iiis  attorney,  may  call  upon  4 
the  other  party  to  admit,  for  the  purpose  of  the  trial  of  the  action,  any  5 
material  fact  or  the  execution  of  any  paper  wliich  he  intends  to  use  at  6 
such  trial.  The  court  may  delay  the  trial  until  such  notice  is  answered.  7 
If  no  answer  is  returned  within  ten  days  after  a  copy  of  said  demand  is  8 
filed  in  the  clerk's  office,  or  within  such  fm-ther  time  as  may  on  motion  9 
be  granted,  the  truth  of  the  fact  or  the  execution  of  the  paper  shall,  for  10 
the  purposes  of  that  action,  be  held  to  be  admitted.  11 


Statement 
of  particulars 
of  action  or 
defence. 

1851,  233,  §  4. 

1852,  312,  §  4. 
G.  S.  129,  I  5S. 


Interlocutory  Orders. 

*  Section  70.    The  court  may  in  all  cases  order  either  party  to  file  a  1 

statement  of  all  particulars  necessary  to  give  to  the  adverse  party  and  2 

to  the  com't  reasonable  knowledge  of  the  nature  and  grounds  of  the  action  3 

or  defence.  P.  s.  i67,  §  ei.  r.  l.  na,  §  cs.  4 


3  Gray,  263. 
1  Allen,  248. 


11  .'\llen,  283. 
129  Mass.  364. 


199  Mass.  457. 
214  Mass.  159. 


220  Mass.  333. 
229  Mass.  339. 


Orders,  etc., 

preparatory 
to  trial,  when 
made. 

1851,233,  §45. 
1852,  312,  §  35. 
G.  S.  129,  §  59. 
1867,  31. 
P.  S.  167,  §  62. 
R.  L.  173,  §  69. 
128  Mass.  296. 
216  Mass.  459. 


t  J  §  II  Section  71.     Orders  allo-sv-ing  amendments  before  trial,  or  al-  1 

lowing  a  supplemental  declaration,  answer  or  rephcation,  or  enlarging  2 

time,  or  any  other  interlocutory  order  necessary  to  prepare  the  case  for  3 

trial,  may  be  made  by  the  coiut  or  by  a  justice  thereof,  in  any  county;  but  4 

the  several  courts  shall  make  such  rides  relative  to  notice,  the  times  and  5 

places  for  motions  at  chambers,  and  other  matters,  as  they  shall  from  6 

time  to  time  find  necessarv.  7 


Agreements. 

1851,  233,  i  46. 

1852,  312, 
§§  36,  88. 
G.S.  129, 
l§  CO,  61. 
P.  S.  167, 
§§  63,  64. 
R.  L.  173, 
8  Allen,  42. 
124  Mass.  241. 
148  Mass.  348. 
156  Mass.  598. 


§70. 


Agreements  of  Parties. 

*  t  Section  72.    Parties  may  make  agreements  relative  to  amend-  1 

ments  and  the  time  of  filing  papers,  which  shall  be  equivalent  to  an  2 

order  of  the  court  to  the  same  effect.    Any  order  mentioned  m  the  pre-  3 

ceding  section  may  be  entered  by  consent  signed  by  the  parties  or  their  4 

attorneys;    but   no  agreement  of  attorneys  relative  to  an  action  or  5 

proceeding  shall  be  valid  unless  in  writing,  except  as  provided  in  section  6 

Seventv-eight.                                    218  Mass.  2S6.                                   234  Mass.  345.  7 


Continuances 
by  agreement 


*  t  Section  73.    If  the  parties  agree  to  continue  a  case  without  costs  1 

G^! lid! i 61.'  until  the  nex-t  sitting,  it  sliall  be  continued  accordingly;  but  the  court  2 

"  '^'.^iTih'^n  ^^y  ^y  general  or  special  order  regulate  the  order  in  which  the  case  3 

shall  stand  for  trial  at  the  next  sitting.  4 


p.  s, 

R.  L, 


Chap.  231.]  pleading  and  pbactice.  2475 

Offer  of  Judgment, 

1  *  1[  Section  74.    If  the  defendant  in  an  action  at  law  or  a  suit  in  offer  of 

2  equity,  wherein  damages  only  are  sought  to  be  recovered,  offers  in  court  issI^ho.'  |  i. 

3  and  by  a  writing  consents  to  be  defaulted,  and  to  have  judgment  rendered  fgyf;  gfc,'  §  li^' 

4  against  him  as  damages  for  an  amount  therein  specified,  the  writing  and  fgy^i'lj;  ^  ^®' 

5  the  time  of  its  fiHng  shall  be  entered  of  record;  and  if  the  plaintiff  within  }|93.  see,  §  20. 

6  ten  days,  or  such  further  time  as  the  court  allows,  after  receipt  of  notice  R  l'  ijs,  §  72. 

7  thereof,  accepts  such  offer,  the  court  shall  render  judgment  accordingly,  97  Mass.ws. 
S  with  costs  to  the  date  of  the  notice.     Such  judgment  rendered  by  a 

9  district  court  shall  be  final. 

1  *  H  Section  75.     If  the  plaintiff  does  not  elect  to  accept  such  offer,  costs  to  de- 

2  and  does  not  recover  as  damages  an  amount,  excluding  interest  from  acceptan°e.°°°' 

3  the  date  of  the  offer,  larger  than  the  amount  so  offered  by  the  defendant,  q^^J;  Jig'  |  53 

4  the  plaintiff  shall  have  judgment  for  his  costs  only  to  the  date  of  the  ^-  \  '^i^'V^ 

5  offer,  and  the  defendant  shall  have  judgment  for  his  costs  after  said  date.  ?7' jsiass.  ks 

'  ■'       °  148  Mass.  592. 

Frivolous  Demurrer. 

1  t  Section  76.     If  a  demurrer  is  overruled  because  it  appears  to  the  Frivolous  or 

2  justice  hearing  it  to  be  frivolous,  immaterial  or  intended  for  delay,  the  ™mumre. 

3  case  shall  proceed  to  judgment  as  if  no  demurrer  had  been  filed,  and  l|t2',  s^il'lll. 

4  execution  may  be  awarded  or  stayed  upon  terms.     If  execution  is  not  pfily'llf' 

5  awarded,  any  security  taken  shall  stand  as  if  no  judgment  had  been  I'q^^ '''^i  ^ '^• 

6  entered  until  an  order  is  made  for  final  judgment. 

Hearing  or  Trial. 

1  t  Section  77.     Actions  in  which  neither  party  has  filed  notice  that  he  jury  waived 

2  desires  a  jury  trial  shall,  unless  otherwise  expressly  provided,  be  heard  demurrers, 

3  and  determined  by  the  court.     Demurrers  may  in  the  first  instance  be  is^l'^Iss'i  33. 

4  heard  by  one  justice. 

1S52.  312,  §  23.  P.  S.  167,  §§  67,  69.  132  Mass.  354,  356. 

G.  S.  129,  §  64.  R.  L.  173,  §  74.  135  Mass.  28. 

1874,  248,  I  1.  10  Gray,  601.  173  Mass.  382. 

1  t  Section  78.     If  the  parties  to  an  action  upon  the  trial  list  at  a  sitting  Postponement 

2  of  the  superior  court  file  an  agreement  that  such  action  shall  be  marked  ?riani°t!^°" 

3  for  trial  not  before  a  certain  day  in  the  same  or  the  succeeding  sitting,  }|go;  \f^ 

4  the  action  shall,  if  reached  in  its  order  upon  said  trial  list  before  such  i^-  ^- 1"^,  §  77. 

5  day,  be  postponed  thereto,  and  placed  upon  the  list  of  actions  in  order 

6  for  trial  on  such  day  next  after  the  cases,  if  any,  which  were  on  the  list 

7  for  the  preceding  court  day;  but,  if  it  is  in  order  for  trial  and  is  reached 

8  for  trial  on  the  day  upon  which  the  agreement  is  filed,  it  shall  not  be 

9  postponed  except  by  order  of  the  court.     If  two  or  more  actions  are  so 

10  postponed  to  the  same  day,  they  shall  be  placed  upon  the  list  for  that 

11  day  in  the  order  in  which  the  agreements  for  their  postponement  were 

12  filed.     Instead  of  so  postponing  a  case,  the  parties  may,  by  a  writing  filed 

13  with  the  clerk,  or  orally  in  his  presence,  agree  that  the  action  be  passed, 

14  and  thereupon  it  may  be  temporarily  stricken  from  the  list,  and  may  be 

15  restored  thereto  on  such  day  as  the  parties  shall,  by  a  writing  filed  with 

16  the  clerk,  agree,  or  after  three  days'  written  notice  given  by  either  party 

17  to  the  other. 


2476 


PLE.\DING   AKT>   PRACTICE. 


[ClLiP.  231. 


Trials  not  to 
be  delayed  or 
postponed,  etc. 

1851,  233, 

§§  28,  29,  102. 

1852,  312, 

§§  19.  64,  88. 
G.  S.  129, 
§§  68,  69. 
P.  S.  167, 
§§  "1,  72. 


*  t  Section  79.     A  trial  shall  not  be  delayed  for  want  of  a  reply  to  the  1 

defendant's  answer,  nor  because  interrogatories  have  been  filed  and  the  2 

time  for  answering  them  has  not  expired,  unless  by  special  order  of  the  3 

court;  nor  shall  an  agreement  of  parties  relative  to  filing  amendments  4 

or  papers  operate  to  postpone  the  trial  of  an  action  beyond  the  time  at  5 

which,  by  the  rules  of  the  court,  it  would  be  tried.         R.  l.  173,  §  7s.  6 


Trials  to  pro- 
ceed after 
allowance  of 
exceptions. 
1804,  105,  §  S. 
1817.  185,  §  5. 
1820,  79,  I  5. 
R.  S.  81,  §§  29, 
33;  82,  §  13. 


t  Section  80.     The  trial  of  questions  of  fact  shall  proceed  although  1 

exceptions  have  been  filed  and  allowed  therein,  and  such  further  pro-  2 

ceedings  shall  be  had  as  the  court  orders;   but  judgment  shall  not  be  3 

entered  unless  the  exceptions  are  adjudged  immaterial,  frivolous  or  4 

intended  for  delay,  or  except  as  hereinafter  provided.  5 


1859,  196,  §  28. 
G.  S.  115,  I  9. 
P.  S.  153,  §  11. 


R.  L.  173,  §  79. 
1911.  497. 
110  Mass.  491. 


186  Mass.  59. 
210  Mass.  214. 
224  Mass.  9. 


Charges  as  to 
facts  forbidden. 
G.  S.  115,  §  5. 
P.  S.  153,  §  5. 


t  §  il  Section  81.    The  courts  shall  not  charge  juries  with  respect  to     1 
matters  of  fact,  but  they  may  state  the  testimony  and  the  law.  2 


R.  L.  173.  §  SO. 
16  Gray,  501. 
4  Allen.  435. 
7  Allen,  207. 
9  Allen,  276. 
14  Allen,  13. 

98  Mass.  161. 

99  Mass.  413. 

102  Mass.  427. 

103  Mass.  425. 
107  Mass.  329. 
110  Mass.  179. 


Ill  Mass.  63. 
117  Mass.  190. 
123  Mass.  248. 
131  Mass.  467. 

139  Mass.  164. 

140  Mass.  473. 
145  Mass.  97. 

148  Mass.  109,  470. 

152  Mass.  12. 

153  Mass.  176. 
162  Mass.  242. 
165  Mass.  153. 


1S8  Mass.  382. 
194  Mass.  157. 

196  Mass.  24. 

197  Mass.  495. 

198  Mass.  499. 

200  Mass.  470. 

201  Mass.  86. 

203  Mass.  384. 

204  Mass.  48. 
208  Mass.  359. 
213  Mass.  2.32. 
231  Mass.  215. 


^glj"  264"§'2  Section  82.  In  counties  containing  two  or  more  shire  towns,  the  su- 
R.  L.  173,  §  82.  preme  judicial  or  the  superior  court,  at  the  sitting  held  on  or  next  after 
the  return  day  on  which  an  action  is  entered,  may  designate  the  sliire 
town  where  it  shall  be  tried,  and  it  shall  not  then  be  put  on  the  trial  list 
for  sittings  held  in  any  other  shire  town  of  that  county  except  by  agree- 
ment of  the  parties. 


of^ttolss'eT         till  Section  83.    During  the  trial  of  a  case  in  which  an  official 
R  *l'  173  I  S3  stenographer  takes  stenographic  notes  of  the  evidence,  no  other  person 

shall  interrupt  the  examination  of  witnesses  for  the  purpose  of  taking    3 
notes  of  their  testimonv.  4 


1 
2 


of°ac°tons*fOT         Section  84.     If  two  or  more  actions  for  substantially  the  same  libel,  1 

1897  525  ?  3    brought  by  the  same  plamtiff,  are  pending  in  the  same  court,  either  in  2 

R.  l'.  173',  1 94.  the  same  or  in  different  counties,  any  justice  thereof  may  in  his  dis-  3 

cretion  make  an  order  that  some  or  all  of  them  be  tried  together.    A  4 

separate  verdict,  or,  if  the  action  is  tried  without  a  jury,  a  separate  5 

finding,  shall  be  rendered  in  each  action,  and  judgment  shall  be  rendered  6 

in  each  as  if  it  had  been  tried  separately.    If  the  plaintiff  recovers  judg-  7 

merit  in  two  or  more  actions,  the  court  shall  make  an  order  for  the  8 

apportionment  of  costs  between  the  defendants.  9 


Contributory 
negligence  an 
affirmative 
defence; 
presumption 
and  burden 
of  proof. 


Eiidcjice. 

*  Section  85.     In  all  actions,  civil  or  criminal,  to  recover  damages  1 

for  injuries  to  the  person  or  property  or  for  causing  the  death  of  a  2 

person,  the  person  injured  or  killed  shall  be  presumed  to  have  been  in  3 

the  exercise  of  due  care,  and  contributory  negligence  on  his  part  shall  4 


Ch.\P.   231.]  PLEADING   AND   PRACTICE.  2477 

5  be  an  afErmative  defence  to  be  set  up  in  the  answer  and  proved  bv  the  i9i4. 553. 

„     ,    p        ,       ^  221  Mass.  95. 

6  defendant.  223  Mass.  SOS.  226  Mass.  140,  262. 

228  Mass.  477.  231  Mass.  131,  IfiO,  233  Mass.  229,  600. 

229  Mass.  219.  186,  215,  313,  339,  234  Mass.  85,  93.  130. 

230  Mass.  316,  363,  438,  447,  458,  519.  235  Mass.  150,  190. 
370,  392,  397,  419.  232  Mass.  138,  165.  236  Mass.  10,  130. 

1  t  Section  86.     If  the  plaintiff  fails  to  introduce  evidence  at   the  counts  not 

2  trial  in  support  of  a  count  in  the  declaration,  it  shall,  if  not  wholly  or  stricken^ul''^ 

3  partly  admitted  by  the  answer,  be  stricken  out;    and  the  court  may,  }|52,' 312,' §  s! 

4  either  of  its  own  motion  or  upon  motion  of  a  party,  require  unnecessary  pgii-'i^^' 

5  counts  and  statements  to  be  stricken  out  of  the  pleadings,  and  may  R- l-  i73.  §  si. 

6  impose  terms.  S  Gray,  5S9.  3  Alien,  471. 

1  *  t  §  II  Section  87.     Pleadings  shall  not  be  evidence  on  the  trial,  but  Pleadings  not 

2  the  allegations  therein  shall  bind  the  party  making  them.  r.'s.  100,  §  18. 

1851,  233,  §  112.  13  Allen,  72.  460.  140  Mass.  250. 

1852,  312,  §  75.  108  Mass.  100.  172  Mass.  303. 
G.  S.  129,  §  72.  109  Mass.  63.  173  Mass.  433. 
P.  S.  167,  §  75.  110  Mass.  61.  176  Mass.  363. 
R.  L.  173,  §  85.  124  Mass.  364.  223  Mass.  243. 
15  Gray,  211.  126  Mass.  21.  226  Mass.  570. 
12  Allen,  443.  135  Mass.  105.  235  Mass.  443. 

1  *  1[  Section  88.     An  offer  or  consent  made  under  section  seventy-  unaccepted 

2  four  and  not  accepted  shall  not  be  evidence  against  the  party  making  judgment. 

3  it,  either  in  a  subsequent  proceeding  in  the  action  or  suit  in  which  it  is  g.^I."  129,' §  7^ 

4  made  or  in  another  action  or  suit.  p.  s.  i67,  §  76.  r.  l.  173,  §  87. 

1  *  t  §  1 1  Section  89.    The  answers  of  a  party  to  interrogatories  filed  Answers  to 

.  nitcrroc&toncs 

2  may  be  read  by  the  other  party  as  evidence  at  the  trial.     The  party  may beread 

3  interrogated  may  require  the  whole  of  the  answers  upon  any  one  sub-  i85i!^233, 

4  ject  matter  inquired  of  to  be  read,  if  a  part  of  them  is  read;   but  if  no  i852!'3i2,  s  73. 

5  part  is  read,  the  party  interrogated  shall  in  no  way  avail  himself  of  his  p.'|.iot%SV.' 

6  examination  or  of  the  fact  that  he  has  been  examined. 

R.  L.  173,  §  88.  176  Mass.  363.  223  Mass.  300. 

109  ilass.  209.  214  Mass.  563. 

1  *  t  If  Section  90.     If  a  defendant  answers  two  or  more  matters  in  one  matter  in 

2  liis  defence,  no  averment,  confession  or  acknowledgment  contained  in  evfde"ce  of 

3  one  of  them  shall  be  used  or  taken  as  e\'idence  against  him  on  the  trial  ^g.?^*'",)^  s  2 

4  of  an  issue  joined  on  any  other  of  them. 

R.  S.  100,  §  18.  1852,  312,  §  75.  P.  S.  167,  §  78.  13  Met.  253. 

1851,  233,  §  112.  G.  S.  129,  §  75.  R.  L.  173,  §  89.  7  Gush.  581. 

1  *  Section  91.     If  the  defendant  in  an  action  for  slander  or  for  pub-  justification 

2  lishing  a  libel  justifies  that  the  words  spoken  or  published  were  true,  in  slander  ^ 

3  such  allegation,  although  not  maintained  by  the  evidence,  shall  not  of  ma^iice. 

4  itself  be  proof  of  the  malice  alleged  in  the  declaration. 

R.  S.  100,  §  19.  P.  S.  167,  §  79.  226  Mass.  447. 

G.  S.  129,  I  76.  R.  L.  173,  §  90. 

1  *  Section  92.     The  defendant  in  an  action  for  -WTiting  or  for  pub-  .p^^^  „,  li^^i 

2  lishing  a  libel  may  introduce  in  evidence  the  truth  of  the  matter  con-  js?l''^gi^- 

3  tained  in  the  publication  charged  as  hbellous;    and  the  truth  shall  be  G.s:i29i§77. 

4  a  justification  unless  actual  malice  is  proved.  R.  l.  173,  §  9i.  .... 

124  Mass.  338.  151  Mass.  127.  200  Mass.  166. 

127  Mass.  316.  176  Mass.  270.  220  Mass.  171. 

133  Mass.  471.  1S3  Mass.  474.  241  U.  S.  257. 


2478  PLEADING  AND   PRACTICE.  [ChAP.  231. 

omef  "^            *  Section  93.     If,  in  an  action  for  libel,  the  defendant,  before  the  1 

1897'  525  §  1     answer  is  required  to  be  filed  therein,  gives  -wTitten  notice  to  the  plain-  2 

?x=^:;,^^^'  kl^-  tiff  or  to  his  attorney  of  his  intention  to  publish  a  retraction  of  the  3 

198  Mass.  538.     ,.,     ,  •     i    i  i-      i  •  i  •    i      i         •  i 

libel,  accompanied   by  a  copy  ot  the  retraction  which  he  uitends  to  4 

publish,  he  may  prove  such  publication  in  mitigation  of  damages.     If,  5 

upon  such  notice,  the  plaintiff  does  not  accept  the  offer  of  retraction,  6 

the  defendant  may  prove  in  mitigation  of  damages  his  offer  to  publish  7 

such  retraction  and  that  the  offer  was  not  accepted,  and  that  the  al-  8 

leged  libel  was  published  in  good  faith  and  without  actual  malice;   and  9 

unless  the  plaintiff  proves  actual  malice  or  want  of  good  faith,  or  a  10 

failure  either  to  retract  or  offer  to  retract  as  aforesaid,  he  shall  reco\-er  11 

damages  only  for  the  actual  injury  sustained;   but  in  no  action  of  libel  12 

shall  exemplary  or  punitive  damages  be  allowed.  13 

mitigation  of         *  SECTION  94r.     In  an  action  for  libel,  the  defendant  may  allege  and  1 

i897?^6l;'.5,  §  2.    prove  in  mitigation  of  damages  that  the  plaintiff  has  already  recovered  2 

r°l'  173  § 93  damages  for,  or  has  received  or  has  agreed  to  receive  compensation  in  3 

respect  of,  substantially  the  same  libel  as  that  for  which  such  action  4 

was  brought.     In  an  action  for  libel  or  slander,  he  may  introduce  in  5 

evidence,  in  mitigation  of  damages  and  in  rebuttal  of  evidence  of  actual  6 

malice,  acts  of  the  plaintiff  which  create  a  reasonable  suspicion  that  the  7 

matters  charged  against  him  by  the  defendant  are  true.  8 


■2 


Evidence  of  *  SECTION  95.     In  an  actlou  upon  a  iudgment  obtained  bv  default  and     1 

payment,  etc.,  .  ^iipii  i  ■!*• 

in  action  on       without  the  knowlcdgc  of  the  defendant,  brought  within  six  years  after 

default.            the  rendition  thereof,  the  com-t  may,  in  its  discretion  and  upon  terms,  3 

G.  s.'  129,'  §  78.  allow  the  defendant  to  show  in  defence  any  payment,  satisfaction  or  4 

R.  L.''n3,V95-  extinguishment  of  the  claim,  prior  to  the  obtaining  of  such  judgment,  5 

ioomTs's^79     or  a^y  matter  of  fraud,  which  in  either  case  he  might  have  shown  upon  6 

a  writ  of  review  in  the  original  suit.  7 

Appeals. 

fu?fcourt°  t  §  Section  96.     A  party  aggrieved  by  any  order  of  the  superior  court     1 

1835!  lohii-  sustaining  or  overruling  a  demurrer  which  alleges  that  the  facts  stated  2 
§§  6  10  ™  the  pleadings  demurred  to  do  not  in  law  support  or  answer  the  action,     3 

1839'  i6i'  ^^'  '^^  ^  party  aggrieved  by  an  order  for  judgment  upon  a  case  stated,  or  4 
i84o!  87,  ■  by  any  order  decisive  of  the  case  founded  upon  matter  of  law  apparent  5 
1851,  233,  §  33.  on  the  record  in  any  proceeding,  may  appeal  therefrom  to  the  supreme  6 
1855,' 449;  judicial  court;  but,  except  as  provided  for  appeals  in  equity  by  section  7 
1859,  WG,  twenty-six  of  chapter  two  hundred  and  fourteen,  no  appeal  or  exception  8 
G  I'''u4  5 10-  shall  be  entered  in  the  supreme  judicial  court  until  the  case  is  in  all  other  9 
i29^§j64.'  '  respects  ripe  for  final  disposition  by  the  superior  court.  An  issue  of  law  10 
167,§  67!  '  joined  in  the  superior  court  shall  not  be  waived  bv  consent  of  parties  1 1 
1898!  5fi2!  §  14.  after  such  appeal  has  been  entered  in  the  supreme  judicial  court,  but  12 
R.^L.  173.  §  90.  that  court  may,  for  good  cause,  allow  the  parties  to  withdraw  or  amend  13 
i9?o!555!  §4!  their  pleadings,  and,  if  they  result  in  an  issue  of  fact,  the  case  shall  be  14 
P^i|^257,  remanded  to  the  superior  court  for  trial.  An  appeal  from  an  order  of  15 
iPo  2'  t^^^  superior  court  shall  be  claimed  within  twenty  days  after  it  is  made,   16 

22'pick.  278.  '  and,  except  as  otherwise  herein  provided,  no  judgment  shall  be  entered  17 
7Cush.  115.  while  an  appeal  is  pending.  If  exceptions  are  taken  upon  the  trial  of  18 
I  Gray!  653.  an  actiou,  any  appeal  taken  in  the  case  shall  be  entered  at  the  same  19 
7  Gray!  425.      time  with  such  exceptions  in  the  supreme  judicial  court,  and  a  party  20 


Chap.  231.]  pleading  and  practice.  2479 

21  failing  so  to  enter  his  appeal  shall  be  deemed  to  have  waived  it.     If  an  lo  Gray.  soi. 

22  appeal  is  groundless  and  intended  merely  for  delay,  the  court,  on  motion  1.3  Gray!  475. 

23  and  after  such  notice  as  its  rules  require,  and  upon  such  terms,  if  any,  I  Alien!  43?: 

24  as  it  deems  reasonable,  may  order  judgment  to  be  entered  notwithstand-  gl^^s^g'oc) 

25  ing  the  appeal,  and  at  the  same  time  may  award  or  stay  execution.     If  ^27 

26  execution  is  not  awarded,  any  attached  property  or  other  security  taken  iig  Mass.  223. 

27  shall  stand  as  if  no  judgment  had  been  entered,  until  final  disposition  is  121  Mass!  402. 

28  made  of  the  case. 

122  Mass.  443.  170  Mass.  569.  214  Mass.  374. 

126  Mass.  258.  1S3  Mass.  42.  215  Mass.  85. 

128  Mass.  296.  1S8  Mass.  292.  216  Mass.  123,  545. 

129  Mass.  158.  193  Mass.  412.  528.  221  Mass.  489. 
134  Mass.  338.  194  Mass.  589.  225  Mass.  123. 
147  Mass.  572.  201  Mass.  5.57.  227  Mass.  41. 
150  Mass.  550.  203  Mass.  233.  230  Mass.  5. 
153  Mass.  6.  206  Mass.  449.  232  Mass.  500. 

156  Mass.  348,  522.  211  Mass.  31.  233  Mass.  162. 

157  Mass.  386.  212  Mass.  230,  352.  235  Mass.  587, 
160  Mass.  415.                               213  Mass.  78. 

1  *  Section  97.     Except  as  otherwise  provided  as  to  the  municipal  ^J^fuperior 

2  court  of  the  city  of  Boston,  a  party  aggrieved  by  the  judgment  of  a  dis-  [Igy-^  ,  j 

3  trict  court  in  a  civil  action,  unless  a  written  waiver  of  the  right  of  appeal  i^ss]  4i>,  §  e. 

.  •       •  rr  1S25  89   5  2 

4  has  been  filed  bv  all  the  parties,  mav,  within  twentv-four  hours  after  issi!  7o',  s  i. 

5  entry  of  a  judgment  rendered  in  accordance  with  section  three  of  chapter  87, '§  se'; 

6  two  hundred  and  thirty-nine  and  in  any  other  case  within  six  days  after  o^s.S^ie,  §  32; 

7  the  entry  of  the  judgment,  appeal  therefrom  to  the  superior  court.     In  Jfre^igg 

8  such  case,  no  execution  shall  issue  on  the  judgment  appealed  from.     The  ^  |'  f^    ^g. 

9  case  shall  be  entered  in  the  superior  court  for  the  same  county  at  the  i55,§28'. 

10  return  day  next  after  the  appeal  has  been  taken  and  shall  be  there  tried  1S93',  396',  §  24. 

11  and  determined  as  if  originally  commenced  there.     In  an  action  founded  431. ' 

12  upon  a  liability  which  is  joint,  if  some  but  not  all  of  the  defendants  ap-  k^l.  leo,  §42; 

13  peal,  the  case  shall  nevertheless  be  transferred  as  against  all,  and  such  }906^45"i 

14  judgment  shall  be  entered  in  the  superior  court  as  justice  may  require;  jg}"' ff^ 

15  but  a  co-defendant  who  has  not  joined  in  the  appeal  shall  not  be  liable  isi''!  326 

16  for  costs  arising  after  the  appeal  was  taken.        uCush.  so.       iGray,  eoo. 

2  Gray,  553.  165  Mass.  238.  200  Mass.  194. 

9  Gray,  47.  171  Mass.  292,  444.                      201  Mass.  451. 

12  Gray,  430.  172  Mass.  37.  206  Mass.  40S. 

13  Allen,  78.  192  Mass.  34.  221  Mass.  161. 
125  Mass.  47.  193  Mass,  203,  235  Mass.  114. 
139  Mass.  126. 

1  *  Section  98.     No  appeal,  other  than  an  appeal  bv  a  countv,  city,  Appeal  bond. 

2  town  or  other  municipal  corporation,  from  a  judgment  of  a  district  i877;236,' 1 1! 

3  court  in  any  civil  action  or  proceeding,  except  an  action  of  summary  p.s! lil' Hi-, 

4  process  under  chapter  two  hundred  and  thirty-nine,  shall  be  allowed,  JH^^gl^' 

5  except  as  provided  in  the  two  following  sections,  unless  the  appellant,  Jlgl' |f ^' ^  ^^■ 

6  within  six  days  after  the  entry  of  judgment,  or  within  such  further  time  isk;  355! 

7  as  the  justice  or  clerk  for  cause  shown  allows,  files  a  bond  executed  by  i9io,'  534,'  §  2. ' 

8  him  or  by  his  attorney  of  record  on  his  behalf,  payable  to  the  appellee  iss  mS  sco! 

9  in  such  reasonable  sum  and  with  such  surety  or  sureties  as  may  be  ap-  {%  \\lll\  I35; 

10  proved  by  the  appellee  or  by  the  justice  or  clerk,  conditioned  to  enter  and  1*1  ^'''^'-  ^**' 

11  prosecute  his  appeal  with  effect,  and  to  satisfy  any  judgment  for  costs  }■}?  ^J"''- 1§^- 

12  which  may  be  entered  against  him  in  the  superior  court  upon  said  appeal  no  Mass.  324. 

13  within  thirty  days  after  the  entry  thereof. 

150  Mass.  lis,  283.  178  Mass.  393. 

1  *  Section  99.     The  appellant  or  any  person  in  his  behalf,  instead  of  Deposit  in 

2  filing  a  bond  as  provided  in  the  preceding  section,  may  deposit  with  the  isso,  20,. 

3  clerk,  within  the  time  required  for  filing  a  bond,  a  reasonable  amount,  p.sri54.  §39; 

4  to  be  fixed  by  the  clerk  or  justice,  as  security  for  the  prosecution  of  the  ists^Le*^^^' 

§§  26-28.' 


§1- 
§4. 


2480 


PLEADING  AND   PRACTICE. 


[ClL^P.  231. 


1894,  431. 
R.  L.  173, 
1100. 
1917,  326. 
160  Mass.  415. 


appeal  and  the  payment  of  costs.    A  certificate  of  such  deposit  shall  be  5 

issued  to  the  depositor  by  the  clerk  or  justice,  and  the  deposit  shall  be  6 

transmitted  by  him  with  the  papers  to  the  clerk  of  the  superior  court,  7 

who  shall  thereupon  deliver  a  receipt  therefor  to  such  clerk  or  Justice  8 

and  shall  hold  such  deposit  until  the  final  disposition  of  the  case,  when  9 

he  shall  pay  it,  or  any  part  thereof,  to  the  appellee  for  his  costs,  or  to  the  10 

depositor  thereof,  as  the  court  may  order.    The  superior  court  may  give  11 

directions  as  to  the  manner  of  keeping  such  deposit.  12 


No  appeal 
bond  required, 
when. 

1862.  217,  §  5. 
1880,  20,  §  4, 


*  Section  100.     If  an  appeal  is  claimed  by  the  plaintiff  in  an  action  1 

of  replevin,  or  by  a  defendant  who  has  given  a  bond  according  to  law  to  2 

dissolve  an  attachment,  no  bond  or  deposit  shall  be  required.  3 

p.  S.  155,  §  33.  1893,  396,  §  29.  R.  L.  173,  §  101. 


1890,  224. 


1894,  431. 


Transmission 
of  papers. 
1862,  217,  I  1. 
1876,  60. 
P.  S.  1.54,  5  40. 

1893,  396,  §  30. 

1894,  431. 
R.  L.  173, 
§102. 


*  Section  101.     When  an  appeal  is  taken  from  a  judgment  of  a  dis-  1 

trict  coiu-t,  the  clerk  shall  transmit  to  the  clerk  of  the  superior  court  the  2 

original  writ  or  process,  all  papers  filed  in  the  case,  all  bonds,  and  a  3 

brief  certificate  of  the  proceedings,  which  shall  be  there  entered  by  the  4 

appellant.  12  Cush.  133.  126  Mass.  233,  399.  197  Mass.  416.  5 


Records  in 
lower  court 
of  cases 
appealed. 
1862,  217,  §  2. 
1876,  60. 
P.  S.  154,  I  41. 


Waiver  of 
jury  trial 
in  Boston 
municipal 
court. 

Removal  by 
plaintiff. 
1912,  649.  5  2. 
1914,35,  §  2; 
409. 

228  Mass.  84. 
235  Mass.  114. 


*  Section  102.    Whensuchappealistaken,  the  names  of  all  the  parties  1 

thereto,  the  nature  of  the  action  or  proceeding,  the  doings  of  the  court  2 

thereon,  the  final  disposition  thereof  and  the  amount  of  costs  taxed  shall  3 

be  entered  on  the  docket;   and  no  other  record  thereof  shall  be  required.  4 

1893,  396,  §  31.  1894,  431.  R.  L.  173,  §  104.  1917.  326. 

J  Section  103.  If  a  party  elects  to  bring  in  the  municipal  court  of  the  1 
city  of  Boston  any  action  or  other  civil  proceeding  which  he  might  have  2 
begun  in  the  superior  court,  he  shall  be  deemed  to  have  waived  a  trial  by  3 
jury  and  his  right  of  appeal  to  the  superior  court,  unless  the  said  action  4 
or  other  civil  proceeding  is  removed  to  the  superior  court  as  hereinafter  5 
provided,  in  which  case  the  plaintiff  shall  have  the  same  right  to  claim  6 
a  jury  trial  as  if  the  action  or  proceeding  had  been  originally  brought  in  7 
the  superior  court;  provided,  that  if  a  declaration  in  set-off  is  filed  in  8 
such  action,  the  plaintift"  may  of  right  remove  the  cause  and  claim  a  9 
jury  trial  in  the  manner  and  upon  the  terms  set  out  in  the  following  10 
section,  within  the  time  allowed  him  for  filing  an  answer  to  such  declara-  11 
tion  in  set-off.  12 


Removal  from 
Boston  munic- 
ipal court. 
1912.  649.  §  3. 
235  Mass.  114. 


J  Section  104.  No  other  party  to  such  action  shall  be  entitled  to  an  1 
appeal.  In  lieu  thereof,  any  such  party  may,  within  two  days  after  the  2 
time  allowed  for  entering  his  appearance,  file  in  said  court  a  claim  of  3 
trial  by  jury,  and  an  affidavit  by  his  counsel  of  record,  if  any,  and  if  4 
none,  the  affidavit  of  such  party,  that  in  his  opinion  there  is  an  issue  of  5 
fact  requiring  trial  in  the  cause,  and  that  such  trial  is  in  good  faith  in-  6 
tended,  together  with  the  sum  of  three  dollars  for  the  entry  of  the  cause  7 
in  the  superior  court,  and  a  bond  in  the  penal  sum  of  one  hundred  dollars,  8 
with  such  surety  or  sureties  as  may  be  approved  by  the  plaintifl^  or  the  9 
clerk  or  an  assistant  clerk  of  said  municipal  court,  payable  to  the  other  10 
party  or  parties  to  the  cause,  conditioned  to  satisfy  any  judgment  for  11 
costs  which  may  be  entered  against  him  in  the  superior  court  in  said  12 
cause  within  thirty  days  after  the  entry  thereof.  The  clerk  shall  forthwith  13 
transmit  the  papers  and  entry  fee  in  the  cause  to  the  clerk  of  the  superior  14 
court,  and  the  same  shall  proceed  as  though  then  originally  entered  there,  15 


Chap.  2.31.]  ple.-sding  and  practice.  2481 

16  but  may  be  marked  for  trial  upon  the  lists  of  causes  advanced  for  speedy 

17  trial  by  jury. 

1  t  Section  105.     In  any  action  brought  by  or  against  two  or  more  Partial 

2  persons  in  which  separate  judgments  are  authorized  by  sections  two  and  19T27649,  §  4. 

3  four,  the  party  seeking  removal  may  specify  in  his  claim  of  jury  trial  the 

4  parties  as  to  whom  such  trial  is  claimed,  in  which  case  the  cause  shall  be 

5  removed  as  to  such  parties  only  as  are  specified  in  such  claim,  and  said 

6  municipal  court  shall  retain  jurisdiction  as  to  the  remainder.     In  such 

7  case  the  clerk  shall  transmit  attested  copies  of  the  papers  in  the  cause  to 

8  the  clerk  of  the  superior  court,  in  lieu  of  the  originals. 

1  t  Section  106.     Any  party,  in  lieu  of  filing  tlie  bond  requu-ed  in  sec-  Deposit  in  licu 

2  tion  one  hundred  and  four,  may  deposit  with  the  clerk  the  sum  of  one  bond™"""' 

3  hundred  dollars.    A  certificate  of  such  deposit  shall  be  issued  to  the  depos-  ^^'^'  ^^'  ^  ® 

4  itor  by  the  clerk,  and  the  deposit  shall  be  transmitted  by  him,  with  the 

5  papers,  to  the  clerk  of  the  superior  court,  who  shall  receipt  therefor  and 

6  hold  said  deposit  until  the  final  disposition  of  the  case,  when  he  shall 

7  apply  the  same  to  the  satisfaction  of  any  costs  awarded  against  the 

8  depositor,  and  pay  the  balance,  if  any,  to  the  depositor  or  his  legal 

9  representatives. 

1  J  Section  107.     No  bond  or  deposit  under  the  three  preceding  sections  Bond  or 

2  shall  be  required  of  a  county,  city,  town  or  other  municipal  corporation  require*d?  when. 

3  or  by  a  party  who  has  given  bond  according  to  law  to  dissolve  an  attach-  ^^^^'  ^^'  ^  ®- 

4  ment;  and  the  court  may  in  any  case,  for  cause  shown,  after  notice  to 

5  adverse  parties,  order  that  no  bond  be  given.    Said  municipal  coiut  may, 

6  upon  cause  shown  and  after  notice  to  all  adverse  parties,  permit  such 

7  removal  to  the  superior  court,  upon  the  terms  above  specified,  at  any  time 

8  prior  to  final  judgment. 

1  {  Section  108.     There  shall  be  an  appellate  di^•ision  of  said  municipal  Appellate 

2  coiu't  for  the  rehearing  of  matters  of  law  arising  in  civil  causes  therein,  1912, 649,  §  s. 

3  the  said  division  to  consist  of  three  justices  thereof,  to  be  designated  215  Mass.  os. 

4  from  time  to  time  by  the  chief  justice.     Any  party  to  a  cause  brought  lib  Mass.  197. 

5  in  said  court  after  August  thirty-fii-st,  nineteen  hundred  and  twelve,  l20Mals  ue" 

6  aggrieved  by  any  ruling  on  a  matter  of  law  by  a  single  justice,  may,  as  gosMass  451' 

7  of  right,  have  the  ruling  reported  for  determination  by  the  appellate  di-  22s  Mass!  63. ' 

8  vision  when  the  cause  is  other^\ise  ripe  for  judgment,  or  sooner  by  con- 

9  sent  of  the  justice  hearing  the  same.     The  request  for  such  a  report  shall 

10  be  filed  with  the  clerk  within  two  days  after  notice  of  the  riding,  and 

1 1  when  the  objection  is  to  the  admission  or  exclusion  of  e\'idence,  the  claim 

12  for  a  report  shall  also  be  made  kno^\^l  at  the  time  of  the  ruling.     The 

13  justice  whose  ruling  is  complained  of  shall  not  sit  upon  the  review  thereof. 

14  If  the  appellate  di\-ision  shall  decide  that  there  has  been  prejudicial  error 
]  5  in  the  ruling  complained  of,  it  may  reverse,  vacate  or  modify  the  same  or 

16  order  a  new  trial  in  whole  or  part;  otherwise  it  shall  dismiss  the  report, 

17  and  may  impose  double  costs  in  the  action  if  it  finds  the  objection  to  such 

18  ruling  to  be  fri\-olous  or  intended  for  delay.     If  the  party  claiming  such 

19  report  shall  not  duly  prosecute  the  same,  by  preparing  the  necessary 

20  papers  or  otherwise,  the  appellate  di\ision  may  order  the  cause  to  proceed 

21  as  though  no  such  claim  had  been  made,  and  may  in  like  manner  impose 

22  costs.     The  court  shall  make  rules  regulating  the  procedure  and  sittings 


2482 


PLE.VDING   AND   PRACTICE. 


[Chap.  231. 


Appeal  from 
appellate 
division  to 
supreme  judi- 
cial court. 
1912,  649,  5  9. 
1914,  35,  §  4. 

215  Mass.  89. 

216  Mass.  197. 

228  Mass.  84. 

229  Mass.  68. 

230  Mass.  526, 
534. 


of  the  appellate  di\'ision,  for  the  preparation  and  submission  of  reports  23 
and  the  allowance  of  reports  wliich  a  single  justice  shall  disallow  as  not  24 
conformable  to  the  facts,  or  shall  fail  to  allow  by  reason  of  physical  or  25 
mental  disability,  death  or  resignation,  and  for  the  granting  of  new  trials.  26 

J  Section  109.  An  appeal  shall  he  from  the  final  decision  of  the  ap-  1 
pellate  division  to  the  supreme  judicial  coiu-t  for  the  commonwealth.  2 
Claim  thereof  shall  be  filed  in  the  office  of  the  clerk  of  said  municipal  court  3 
^\•ithin  five  days  after  notice  of  the  decision  of  the  appellate  dixision.  4 
The  appeal  shall  not  remove  the  cause,  but  only  the  question  or  ques-  5 
tions  to  be  determined.  The  necessary  papers  shall,  at  the  expense  of  the  6 
party  appealing,  unless  the  coiirt  shall  order  the  expense  to  be  borne  7 
by  some  other  party,  be  prepared  by  the  clerk,  who  may  require  the  esti-  8 
mated  expense  thereof  to  be  paid  in  advance.  The  appeal  shall  be  trans-  9 
mitted  to  and  entered  on  the  docket  of  the  supreme  judicial  court  within  10 
ten  days  after  notice  to  the  appealing  party  that  the  papers  are  ready  11 
for  transmission.  The  expense  of  such  copies  and  transmission,  and  the  12 
entry  fee  in  the  supreme  judicial  court,  shall  be  taxed  in  the  bill  of  costs  13 
of  the  prevailing  party,  if  he  has  paid  it.  Section  twenty-five  of  chapter  14 
two  hundred  and  sixty-one  shall  apply  to  such  appealed  cases.  If  the  15 
appellant  fails  duly  to  perfect  the  appeal  or  to  enter  the  same  in  the  16 
supreme  judicial  coiu-t,  the  appellate  division  may  upon  application  of  17 
an  adverse  party,  and  after  notice  to  all  persons  interested,  order  the  18 
appeal  vacated  and  the  decision  appealed  from  affirmed.  19 


Powers  of 
appellate 
division. 
1914,  35,  I  1. 


Report. 

1859,  196,  §  32. 
G.S.  115,  §  6. 
1869,438,  5  1. 
1878,231,  ^  1. 
P.  S.  153,  §  6. 
1887,  332,  §  4. 
1891,  227.  I  2. 
1899,  131,  §  2. 
1900,311. 
R.  L.  128.  I  13; 
173,  I  105. 
1902,  458. 
1904,  448.  §  8. 
1910.  555,  §  5; 
560,  §§  1,  6. 
1917,  345. 
1  AUen,  18, 
388. 
9  Allen,  539. 


J  Section  110.  The  appellate  division  of  said  court  shall  have  all  the 
powers  relating  to  civil  actions  tried  without  a  jury  given  by  sections 
one  hundred  and  twenty-four,  one  hundred  and  twenty-five,  one  hun- 
dred and  twenty-six  and  one  hundred  and  tliirty-two  to  the  supreme 
judicial  court. 

Report. 

t  II  Section  111.  A  justice  of  the  supreme  judicial,  the  superior  or 
the  land  court,  after  verdict,  or  after  a  finding  of  the  facts  by  the  court, 
may  report  the  case  for  determination  by  the  full  court.  If  a  justice  of  the 
supreme  judicial  or  the  superior  court  is  of  opinion  that  an  interlocutory 
finding  or  order  made  by  him  ought  to  be  determined  by  the  full  court 
before  any  further  proceedings  in  the  trial  court,  he  may  report  the  case 
for  that  purpose  and  stay  all  further  proceedings  except  such  as  are 
necessary  to  preserve  the  rights  of  the  parties.  A  justice  of  the  supreme 
judicial  or  the  superior  court  may,  upon  request  of  the  parties,  in  any  case 
where  there  is  agreement  as  to  all  the  material  facts,  report  the  case  to 
the  full  coiu-t  for  determination  without  making  any  decision  thereon. 


100  Mass.  31. 
106  Mass.  346. 
113  Mass.  290. 

115  Mass.  129,  133,  310. 

116  Mass.  299. 
125  Mass.  47,  404. 

129  Mass.  5.35. 

130  Mass.  443. 
141  Mass.  577. 
154  Mass.  31. 
156  Mass.  598. 
167  Mass.  473. 


171  Mass. 
1S9  Mass. 
195  Mass. 
198  Mass. 

201  Mass. 

202  Mass. 
204  Mass. 
207  Mass. 

211  Mass. 

212  Mass. 

213  Mass. 

214  Mass. 


201. 

74. 

55. 

388. 

172,  248. 

209. 

117,331. 

285. 

31,  449. 

257. 

191. 

340,  374. 


215  Mass.  75. 

216  Mass.  545. 
218  Mass.  397. 
222  Mass.  226. 

224  Mass.  424. 

225  Mass.  18.  399. 
228  Mass.  519. 
230  Mass.  139,  526. 
233  Mass.  558. 
.235  Mass.  304. 

236  Mass.  98. 


1 

2 
3 
4 
5 


1 
2 

3 

4 
5 
6 
7 
8 
9 
10 
11 


Report  in  case 
of  disability, 
etc.,  of  pre- 
siding justice. 
1912,317. 
215  Mass.  432. 
231  Mass.  247. 


t  §  II  Section  112.    If  a  justice  presiding  at  a  trial  has  reserved  a  case  1 

for  report  to  the  supreme  judicial  court,  and  fails,  by  reason  of  physical  2 

or  mental  disability,  death  or  resignation,  to  make  such  report,  any  3 

other  justice  of  the  same  court  may  examine  and  report  the  same.  4 


ClIAP.  231.]  PLE.UJING  AND  PRACTICE.  2483 


Exceptions. 

1  till  Section  113.     Exceptions  may  be  alleged  by  any  party  ag-  Exceptions. 

2  grieved  by  an  opinion,  ruling,  direction  or  judgment  of  the  supreme  isoi!  los,  s  5. 

3  judicial  court,  of  the  superior  court,  or  of  the  land  coiu't,  rendered  upon  is2o!  79,  §5. " 

4  any  matter  of  law  in  any  ci\il  cause,  according  to  the  course  of  the  r.^s.'suVzI; 

5  common  law  or  otherwise,  tried  by  a  jury  or  heard  by  the  court,  or  fg^ogy 

6  upon  a  motion  for  a  new  trial.     The  exceptions  shall  be  reduced  to  ^^^^  |gy  .  ^ 

7  wTiting  in  a  summary  manner  and  filed  with  the  clerk,  and  notice  i859,'i96,'|27. 

8  thereof  shall  be  given  to  the  adverse  party,  in  civil  cases  tried  by  a  115,  pj.'s; 

9  jury,  within  twenty  days  after  the  verdict  is  rendered,  and  in  cases  ises.  isd,  §  2. 

10  tried  without  a  jury,  within  twenty  days  after  the  notice  of  the  de-  ilsatis. 

11  cision  has  been  received,  unless  further  time  is  allowed  by  the  court.  i'5|§§l-ioT' 

12  The  presiding  justice  shall  thereafter,  upon  their  presentation  to  liim  Jlgy^ggj  54 

13  by  any  party  to  the  action,  examine  the  exceptions,  and  after  hearing  JfgJ'fH'l?- 

14  the  parties,  determine  whether  they  are  conformable  to  the  truth.    The  R.  l!  173! 

15  excepting  party  may  be  allowed  to  make  such  amendments  to  his  bill  1900. 342,  §  3. 

16  of  exceptions  as  will  make  it  a  more  accurate  statement  of  the  excep-  i^Met  2S7:  ^' 

17  tions  originally  filed  by  him.     If  the  presiding  justice  finds  that  the  ISmy^sBf' 

18  exceptions,  M^ith  any  amendments  thereof  thus  allowed,  are  conformable  |  q-     243 

19  to  the  truth,  he  shall  allow  them.  10  Gray,  240, 400. 

15  Gray,  485.  125  Mass.  94,  203,  367,  587.  190  Mass.  346,  585. 

1  Allen,  33,  167,  274,  529.  126  Mass.  222.  191  Mass.  92. 

2  Allen,  230,  634.  127  Mass.  158,  452.  193  Mass.  435. 

3  Allen,  212.  128  Mass.  349.  194  Mass.  48,  524. 
6  Allen,  150.  133  Mass.  536.  195  Mass.  46. 

9  Allen,  537.  134  Mass.  189.  197  Mass.  376. 

10  Allen,  248,  419.  137  Mass.  92.  98.  200  Mass.  142. 

1 1  Allen,  472.  140  Mass.  434.  201  Mass.  557. 

12  Allen,  191.  141  Mass.  181.  204  Mass.  337. 

13  Allen,  70,  408.  144  Mass.  420.  206  Mass,  197. 

99  Mass.  425,  475,  542.  145  Mass.  234.  208  Mass.  60. 

100  Mass.  153.  147  Mass.  159,  164.  209  Mass.  199. 

101  Mass.  378,  479.  150  Mass.  6.50.  210  Mass.  214. 

103  Mass.  547.  151  Mass.  158,  276,  212  Mass.  352. 

104  Mass.  224.  470,  532.  213  Mass.  194. 
107  Mass.  210,  453.                         156  Mass.  522.                                 214  Mass.  379. 

110  Mass.  491.  159  Mass.  210.  216  Mass.  381. 

111  Mass.  160.  160  Mass.  131.  256.  216  Mass.  539. 

112  Mass.  233.  161  Mass.  558.  217  Mass.  473. 

113  Mass.  88.  271,  452.  162  Mass.  208,  334,  402.  220  Mass.  227,  356. 

114  Mass.  67,  362.  163  Mass.  536.  221  Mass.  136,  378. 

115  Mass.  1.  167  Mass.  417.  222  Mass.  179,  226. 

1 16  Mass.  98.  124,  424.  168  Mass.  303.  224  Mass.  169,  310. 

117  Mass.  155,  281,  466.  170  Mass.  260,  52fi.  509.  227  Mass.  29. 

119  Mass.  71,  99,  172  Mass.  35,  420.  53S.  228  Mass.  368,  569. 

116,  188,  375,  476.  174  Mass.  253,  580.  229  Mass.  421- 

121  Mass.  165,  605.  178  Mass.  368.  231  Mass.  7,  404. 

122  Mass.  601.  181  Mass.  246.  232  Mass.  500. 

123  Mass.  679.  182  Mass.  293,  584.  233  Mass.  420. 

124  Mass.  21,  226,  185  Mass.  576.  2.34  Mass.  148. 
241,  292,  353.  187  Mass.  150,  521.  236  Mass.  330.  422. 

1  t  §  II  Section  114.     If   an  excepting   party,   in  any  ci\'il   cause  in  Dismissal  of 

2  which  exceptions  may  be  alleged,  shall  not  within  such  time  after  the  failure'tS^ 

3  filing  of  his  exceptions  as  the  court  may  determine  to  be  reasonable  aUowanc'r 

4  thus  present  them  to  the  court  for  allowance,  the  court  in  wliich  the  2i3Va'ss'  i9^' 

5  exceptions  were  taken  and  filed  may,  after  notice  to  all  parties  inter-  220  Mass.  350 

6  ested,  order  them  dismissed,  and  thereupon  proceed  to  enter  judgment 

7  in  the  same  manner  as  if  no  exceptions  had  been  filed.    No  exceptions 

8  shall  thus  be  dismissed  within  three  months  after  the  date  of  their  filing. 

1  t  §  II  Section  115.    If  a  justice  presiding  at  a  trial  at  which  ex- Allowance  of 

2  ceptions  have  been  taken  fails,  by  reason  of  physical  or  mental  dis-  case''o'f"dis-'° 

3  ability,  death  or  resignation,  to  sign  or  return  them,  any  other  justice  of  of"pre^3'idi'ng 

4  the  same  court  may  examine  and  allow  or  disallow  them.    "    I882, 239.         justice. 

1894,  412.        R.  L.  173,  §  108.        1912,  317.         195  Mass.  443. 


2484 


PLE.U)ING   AND    PRACTICE. 


[dLU-.   231. 


Frivolous 
or  immaterial 
exceptions. 
ISM,  105.  I  5. 
R.  S.  81.  §  29. 
G.  S.  lis,  §  10. 
P.  S.  153.  §  12. 
1S91,  362. 
R.  L.  173,  5  109. 
145  Mass.  97. 
156  Mass.  61. 
1S2  Mass.  316, 
320. 

218  Mass.  463. 
224  Mass.  9. 


Establishment 
of  exceptions 
disallowed. 
R.  S.  81.  §  28. 
1851,  261, 
I§1,2. 

1859.  196,  §  29. 
G.  S.  115,  §  11. 
P.  S.  153.  §  13. 
1882,  239. 
1894,  412. 
R.L.  173,  §110. 
4  Gray,  568. 
15  Gray,  202. 
1  Allen,  484. 
6  Allen,  557. 


Entry  of 
notice  of 
filing  of 
petition  to 
establish 
exceptions. 
190S,  516. 


t  Section  116.  If  a  justice  presiding  at  the  trial  of  a  civil  cause 
finds  that  the  exceptions  taken  therein  are  immaterial,  frivolous  or 
intended  for  delay,  judgment  may  be  entered  and  execution  awarded 
or  stayed,  upon  terms,  notwithstanding  the  allowance  of  the  exceptions. 
If  execution  is  not  awarded,  any  security  taken  shall  stand  as  if  no 
judgment  had  been  entered  until  an  order  is  made  for  final  judgment. 
In  case  of  the  disability  or  death  of  the  presiding  justice,  any  justice  of 
the  same  court  may  exercise  the  powers  herein  conferred. 

t  §  II  Section  117.  If  the  presiding  justice,  or  another  justice  act- 
ing under  section  one  hundred  and  fifteen,  disallows  or  fails  to  sign  and 
return  the  exceptions  or  alters  any  statement  therein,  and  either  party 
is  aggrieved  thereby,  the  truth  of  the  exceptions  presented  may  be 
established  before  the  full  court  upon  petition  stating  the  grievance, 
and  thereupon,  the  truth  of  the  exceptions  being  established,  they  shall 
be  heard,  and  the  same  proceedings  taken,  as  if  the  exceptions  had  been 
duly  allowed  and  entered.  The  supreme  judicial  court  shall  make  rules 
for  settling  the  truth  of  exceptions  alleged  and  not  allowed. 


98  Mass.  34. 

99  Mass.  427. 
103  Mass.  530. 
105  Mass.  42,  49. 

112  Mass.  299. 

113  Mass.  153. 

115  .Mass.  56. 

116  Mass.  302.  424. 

117  Mass.  68. 
119  -Mass.  416. 

121  Mass.  503. 

122  Mass.  433. 
124  Mass.  220. 


127  Mass.  158. 

130  Mass.  6. 

131  Mass.  566. 

132  Mass.  183. 

143  Mass.  27. 

144  Alass.  71- 
155  Mass.  233. 
161  .Mass,  558. 
163  Mass.  536. 

167  Mass.  254. 

168  Mass.  304. 

173  Mass.  286. 

174  Mass.  253. 


175  Mass.  56. 
187  Mass.  542. 

193  Mass.  21. 

194  Mass.  589. 
204  Mass.  331. 

207  Mass.  256. 

208  Mass.  60,  405. 
215  Mass.  68. 
219  Mass.  209. 

222  Mass.  179. 

223  Mass.  471. 
225  .Mass.  473. 
2.34  Mass.  576. 


t  §  II  Section  118.  Whenever  a  petition  under  the  preceding  section 
is  filed,  the  clerk  of  the  supreme  judicial  court  for  the  commonwealth 
shall,  ^^-ithin  three  days  after  the  filing  of  the  petition,  send  notice 
thereof  to  the  clerk  of  the  court  in  wliich  the  exceptions  were  filed,  who 
shall  thereupon  enter  in  the  case  on  the  docket  of  that  court  notice  of 
the  filing  of  such  petition  in  the  supreme  judicial  court. 


1 
2 

3 
4 
5 
6 

7 
8 

1 
2 
3 

4 
5 
6 
7 
8 
9 


Reservation 
where 
exceptions 
disallowed. 
1908,  177. 
217  Mass.  537. 
231  Mass.  247. 


t  §  II  Section  119.  If  in  any  civil  action  tried  before  a  jury  in  the  su-  1 
preme  judicial  or  the  superior  court  a  bill  of  exceptions  duly  filed  is  not  2 
allowed  by  the  presiding  justice  within  three  months  after  the  date  of  3 
the  verdict  therein,  because  the  same  is  not  found  by  him  to  be  con-  4 
formable  to  the  truth,  or  is  not  found  to  state  the  facts  and  evidence  5 
in  the  case  correctly  and  fully,  the  presiding  justice  may  in  his  discretion  6 
reserve  the  case  and  send  to  the  supreme  judicial  court  for  the  common-  7 
wealth  the  whole  record  of  the  case,  including  the  pleadings  and  the  8 
evidence  taken  by  the  official  stenographer  and  -nTitten  out  from  his  9 
notes,  and  certified  by  him  to  ha^'e  been  so  taken  and  wTitten  out;  or  10 
so  much  of  said  record  as  is  material  to  the  issue.  Said  record  shall  be  11 
accompanied  by  the  certificate  of  the  presiding  justice  that  the  same  12 
is  a  true  copy  of  the  record  and  proceedings  in  said  case,  or  of  the  part  13 
thereof  transmitted,  and  shall  be  entered  in  the  supreme  judicial  court  14 
for  the  commonwealth;  and  thereupon  said  record  so  made  and  certi-  15 
fied  shall  stand  in  lieu  of  a  bill  of  exceptions  in  all  respects,  and  the  16 
questions  raised  by  the  exceptions  in  said  cause  shall  be  heard  and  17 
determined  by  the  full  court  on  such  record.  In  case  of  the  disability  18 
or  death  of  the  presiding  justice,  any  justice  of  the  same  court  may  19 
exercise  the  powers  herein  conferred.  The  expense  of  transcribing  the  20 
stenographer's  notes  and  of  copj-ing  exliibits  shall  be  borne  by  the  21 


Chap.  231.]  pleading  and  practice.  2485 

22  excepting  party,  and  if  he  prevails  the  same  shall  be  taxed  in  his  costs. 

23  All  pro\-isions  of  law  relating  to  bills  of  exceptions,  so  far  as  they  may 

24  be  applicable,  shall  apply  to  proceedings  under  tliis  section. 

1  t  §  II  Section  120.     When  exceptions  to  any  ruling  or  direction  of  a  Verdict  by 

2  judge  are  alleged,  or  any  question  of  law  reserved,  in  the  course  of  a  trial  ^^uJi^i^Yi'. 

3  by  jury,  and  the  circumstances  are  such  that,  if  the  ruling  or  direction  r.l.  ill,  ^  ^*' 

4  at  the  trial  was  wrong,  the  verdict  or  finding  ought  to  have  been  entered  f9\f  igs 

5  for  a  different  party  or  for  larger  or  smaller  damages  or  otherwise  than  as  ll^'-J- 

6  was  done  at  the  trial,  the  justice  may  reserve  leave,  with  the  assent  of  iSs  Masa^  sss! 

7  the  jury,  so  to  enter  the  verdict  or  finding,  if  upon  the  questions  of  law  231  Massl  es! 

8  so  raised  the  court  shall  decide  that  it  ought  to  have  been  so  entered.    The  ^^^  ^^^^'  ^'' 

9  leave  reserved,  as  well  as  the  findings  of  the  jury  upon  any  particular 

10  questions  of  fact  submitted  to  them,  shall  be  entered  in  the  record  of  the 

11  proceedings,  and  if  upon  the  questions  of  law  it  shall  be  decided,  either 

12  by  the  same  coiut  or  by  the  appellate  court,  that  the  verdict  or  finding 

13  ought  to  have  been  entered  in  accordance  with  the  leave  reserved,  it  shall 

14  be  entered  accordingly,  unless  the  supreme  judicial  court,  in  accordance 

15  with  section  one  hundred  and  twenty-two,  one  hundred  and  twenty- 

16  three  or  one  hundred  and  twenty-four,  makes  a  different  order.     When 

17  so  entered,  the  verdict  shall  have  the  same  effect  as  if  it  had  been  entered 
IS  at  the  trial. 

1  t§  II  Section  121.    The  presiding  justice  may  order  the  excepting  Transcripts 

2  party  in  civil  cases  to  provide  him  with  a  transcript  of  the  evidence  and  i895,"i53^^§  2. 

3  of  the  instructions  to  the  jury,  or  such  portion  thereof  as  he  shall  desig-  ^^l]  j^g- 

4  nate,  written  out  by  the  official  stenographer  from  his  notes,  within  5  m- 

5  such  time,  not  less  than  ten  days  after  the  date  of  the  order,  as  the  pre- 
G  siding  justice  designates. 

Power  of  Full  Court  on  Exceptions,  Appeal  or  Report. 

1  til  Section  122.     When  the  justice  presiding  at  a  trial  is  requested  ™'  '^°^^^^ 

2  to  rule  that  upon  all  the  evidence  the  plaintiff'  cannot  recover,  and  such  judgment 

3  request  is  refused,  and  exception  by  the  defendant  to  such  refusal  is  duly  after  sustain- 

4  taken,  and  a  finding  or  verdict  returned  for  the  plaintiff',  then  if  the  de-  exceptions. 

5  fendant's  said  exception  is  sustained  in  the  supreme  judicial  court,  and  i9o™'236,  §  1. 

6  exceptions,  if  any,  taken  in  said  trial  by  the  plaintiff  are  all  overruled,  ^Ss  '^''""''  ^"' 

7  the  supreme  judicial  court  may,  by  rescript,  direct  the  entry  in  the  trial  ^os  Mass.  28fi, 

8  court  of  judgment  for  the  defendant,  and  thereupon  judgment  shall  so  aiiMass.  iso. 

9  be   entered.  aiSMass.  467,  SSS.  223  Mass.  471. 

1  til  Section  123.     When  the  justice  presiding  at  a  trial  is  requested  ^f"®,-^'" 

2  by  the  plaintiff  to  rule  that  upon  all  the  evidence  a  finding  or  verdict  looo.  230,  §  2. 

3  should  be  returned  for  the  plaintiff,  and  such  request  is  refused,  and  an 

4  exception  to  such  refusal  is  duly  taken,  and  a  finding  or  verdict  is  re- 

5  turned  for  the  defendant,  then  if  the  plaintift"s  said  exception  is  sustained 

6  in  the  supreme  judicial  court,  and  the  exceptions,  if  any,  taken  in  said 

7  trial  by  the  defendant  are  all  overruled,  the  supreme  judicial  court  may, 

8  by  rescript,  direct  the  entry  in  the  trial  court  of  judgment  for  the  plain- 

9  tiff",  and  thereupon  judgment  shall  so  be  entered. 

1  1 1  §  II  Section  124.     Whenever  a  question  in  dispute  at  the  trial  of  flf^""/  j,„ 

2  an  issue  of  fact  in  any  civil  action  or  proceeding  depends  upon  the  de-  appeal,  etc. 

3  cision  of  a  question  of  law,  the  full  bench  of  the  supreme  judicial  court,  216  Mass.  200. 


2486 


PLEADING   .AND    PRACTICE. 


[Ch.^p.  231. 


223  Mass.  39. 
228  Mass.  191, 
285,  294,  484. 


upon  appeal,  exceptions  or  report  or  otherwise,  may,  if  satisfied  that  it  4 

has  before  it  all  the  facts  necessary  for  determining  the  question  in  dis-  5 

pute,  direct  that  such  judgment  or  decree  be  entered  or  that  such  other  6 

action  be  taken  as  shall  accord  with  the  determination  of  the  full  court;  7 

or,  if  the  full  court  shall  be  of  the  opinion  that  it  has  not  before  it  suf-  8 

ficient  facts  to  determine  said  question,  it  may  direct  such  issues  or  9 

questions  as  it  shall  think  proper  to  be  tried  before  a  jury  if  the  case  be  a  10 

jury  case,  or  otherwise  before  a  judge,  and  may  direct  in  the  alternative  11 

the  action  to  be  taken  upon  the  verdict  or  finding.     When  any  such  ques-  12 

tion  of  law  shall  arise  in  a  trial,  the  judge  shall,  by  leaving  appropriate  13 

questions  to  the  jury,  or  by  his  own  findings  where  the  trial  is  without  a  14 

jury,  ascertain  so  far  as  is  practicable  all  the  facts  both  as  to  liability  15 

and  damages  necessary  on  any  theory  of  the  law  to  enable  the  court  to  16 

make  the  proper  final  disposition  of  the  case,  unless  in  the  opinion  of  the  17 

court  such  a  course  is  inexpedient  under  the  circumstances  of  the  case.  18 

When  special  questions  are  submitted  to  a  jury,  the  judge  may  or  may  19 

not  take  a  general  verdict,  and  may  report  the  case  on  the  answers  of  the  20 

jury,  or  make  such  other  order  thereon  as  he  deems  proper.    A  judge  21 

reporting  to  the  full  court  for  its  determination  a  question  as  to  the  cor-  22 

rectness  of  any  rulings  of  law  made  by  him  at  a  trial,  or  on  a  motion  23 

for  a  new  trial,  may  make  in  any  proper  case  a  provision  in  the  report  24 

that,  if  his  rulings  were  correct,  a  judgment  or  decree  shall  be  entered  for  25 

the  party  in  whose  favor  the  rulings  were  made,  and  that,  if  his  rulings  26 

were  wrong,  the  judgment  or  decree  shall  be  entered  in  accordance  with  27 

such  rulings  as  he  ought  to  have  made.  28 


Same, 
relative  to 
amendments, 
etc. 

1859,  237, 
§.§  2.  6. 
G.  S.  113, 
§§  8,  21. 
P.  S.  151, 
§§  13,  26. 
1883,  223,  §  2. 
R.  L.  159, 
§§  19,  24. 
1911.  284,  §  1. 
1913,  716.  §  3. 
216  Mass.  197, 
459 
217'Mass.392. 

219  Mass.  594. 

220  Mass.  79. 

222  Mass.  382. 

223  Mass.  471. 

224  Mass.  2SS. 
226  Mass.  404. 


1 1  §  II  Section  125.     The  supreme  judicial  court,  upon  any  appeal,  1 

bill  of  exceptions,  report,  or  other  proceeding  in  the  nature  of  an  appeal  2 

in  any  civil  action,  suit  or  proceeding,  shall  have  all  the  powers  of  amend-  3 

ment  of  the  court  below;  and  whenever  exceptions  have  been  taken  to  4 

the  exclusion  of  evidence,  or  where  the  alleged  error  arises  from  the  omis-  5 

sion  at  the  trial  of  some  fact  which,  under  the  circumstances  of  the  case,  6 

may  subsequently  be  proved  without  involving  any  question  for  a  jury,  7 

and  without  substantial  injustice  to  either  party,  the  supreme  judicial  8 

court  shall  have  full  discretionary  authority  to  cause  such  further  testi-  9 

mony  to  be  taken  as  it  deems  necessary,  either  by  oral  examination  in  10 

court,  by  reference,  by  affidavit  or  by  deposition,  and  the  court  shall  11 

have  power  to  render  any  judgment  and  to  make  any  order  that  ought  12 

to  have  been  made  upon  the  whole  case.                 227  Mass.  589.  13 

228  Mass.  390.  232  Mass.  402.  233  Mass.  162.  236  Mass.  104. 


Inferences 
of  fact  upon 
case  stated. 
1913,  716,  §  5. 

217  Mass.  176. 

218  Mass.  425. 
221  Mass.  237. 

225  Mass.  425. 

226  Mass.  430. 


1 1  §  II  Section  126.  Upon  a  case  stated  by  agreement  of  the  parties 
for  the  decision  of  the  court  in  any  action,  suit  or  proceeding,  any  court 
before  which  such  case  shall  come,  either  in  the  first  instance  or  upon 
appeal,  exceptions,  report  or  other  proceedings  in  the  nature  of  an  appeal, 
shall  be  at  liberty  to  draw  from  the  facts  and  documents  stated  in  the 
case  any  inferences  of  fact  that  might  have  been  drawn  therefrom  at  a 
trial,  unless  the  parties  expressly  agree  that  no  inferences  shall  be  drawn. 


New  Trials. 

is^'u *"9'''§  7  t§  II  Section  127.     The  court  may,  at  any  time  before  judgment, 

KJ82^§i9.    get  aside  the  verdict  in  a  civil  action  and  order  a  new  trial  for  any 
1859',  196,  §32.  causc  for  which  a  new  trial  may  by  law  be  granted;  but  a  verdict  shall 


Ch.'VP.  231.]  PLE-VDING  ANB  PRACTICE.  2487 

4  not  be  set  aside  except  on  written  motion  by  a  party  to  the  cause,  stating  g.  s.  115, 5  6. 

5  the  reasons  reUed  upon  in  its  support,  filed  and  heard  after  notice  to  the  1897,472. 

6  adverse  party  according  to  the  rules  of  the  court.     A  verdict  shall  not  be  f  112/'^^' 

7  set  aside  as  excessive  until  the  prevailing  party  has  first  been  given  an  l|/^l^^t89. 

8  opportunity  to  remit  so  much  thereof  as  the  court  adjudges  is  excessive.  }38^J^gf4|' 

147MaS3.  572.  183  Mass.  125.  210  Mass.  563. 

148  Mass.  53,  429.  191  Mass.  223.  402.  213  Mass.  424. 

160  Mass.  256.  193  Mass.  412.  218  Mass.  310,  363,  397. 

162  Mass.  397.  197  Mass.  252.  220  Mass.  227. 

163  Mass.  143.  198  Mass.  3,S8.  575.  221  Mass.  8,  378,  422. 
169  Mass.  459.  200  Mass.  142,  409.  224  Mass.  117. 

172  Mass.  262,  207  Mass.  606.  225  Mass.  31. 

178  Mass.  139.  208  Mass.  513.  227  Mass.  486. 

ISO  Mass.  8. 

1  t  §  II  Section  128.     Whenever  a  verdict  is  set  aside  and  a  new  trial  ^ew^rflVto 

2  granted  under  the  preceding  section,  the  justice  granting  the  motion  be^statedin 

3  for  the  new  trial  shall  file  a  statement  setting  forth  fully  the  grounds  wu.'soi, 

4  upon  which  the  motion  is  granted,  which  statement  shall  be  a  part  of  218  Massl  303! 

5  the  record  of  the  case.     If  it  appears  from  the  statement  that  the  sole  422,  '''*^'  ' 

6  ground  for  granting  the  motion  was  that  the  damages  awarded  were  225  MaS!  31!^' 

7  either  inadequate  or  excessive,  then  the  new  trial  shall  be  limited  to  Ig^  ^J^^^-  Hf 

8  the  question  of  the*  amount  of  damages. 

1  t  §  II  Section  129.     A  new  trial  may  be  granted,  upon  motion,  for  New  trial  in 

2  a  mistake  of  law  or  for  newly  discovered  evidence  in  a  case  heard  by  the  rases!*"'^' 

3  court.     When  a  decision  has  been  rendered  in  such  a  case,  the  clerk  g.^s!  129,  |  w. 

4  shall  notify  the  parties,  and  a  motion  for  a  new  trial  may  be  filed  within  j?  a' 1*53,  §  9; 

5  three  days  after  receipt  of  such  notice  or  within  such  further  time  as  the  ^  l\73§  113 

6  court  allows.  14S  Mass.  522.  218  Mass.  310. 

1  t  §  il  Section  130.     If  a  new  trial  is  refused,  the  court  may  impose  Terms  on 

2  terms  upon  the  moving  party,  to  be  taxed  as  costs.  new  trial. 

1876,  74.  P.  S.  153,  §  7.  R.  L.  173,  §  114.  178  Mass.  403. 

1  t§  II  Section  131.     Sections  one  hundred  and  twenty-two  and  one  Effect  of 

2  hundred  and  twenty-three  shall  not  limit  or  affect  the  power  of  a  trial  newuiar °° 

3  court  to  grant  a  new  trial.  i909, 236,  §  3. 

Effect  of  Error  not  Affecting  Whole  Case. 

1  1 1  §  II  Section  132.     No  new  trial  shall  be  granted  in  any  civil  action  No  new  trial 

2  or  proceeding  on  the  ground  of  improper  admission  or  rejection  of  evi-  by^fuU  ^"urt'' 

3  deuce,  or  for  any  error  as  to  any  matter  of  pleading  or  procedure,  if  the  onlmrs°i"' 

4  judge  who  presided  at  the  trial  when  application  is  made  by  motion  for  ''rocldure°not 

5  a  new  trial,  or  the  supreme  judicial  court  when  application  is  made  affecting  sub- 

6  by  exceptions  or  otherwise,  deems  that  the  error  complained  of  has  not  Judgment  as  to 

7  injuriously  affected  the   substantial  rights  of  the  parties;    and,  if  it  i9i3,''7i'6!li. 

8  appears  to  such  court  that  said  error  affects  part  only  of  the  matter  in  2i7*m?s's  us. 

9  controversy  or  some  or  one  only  of  the  parties,  the  court  may  direct  final  ojg  Mal^lssg! 

10  judgment  as  to  part  thereof,  or  some  or  one  only  of  the  parties,  and  may  1^° '^o"!"' ~°' 

11  direct  a  new  trial  as  to  the  other  part  only  or  as  to  the  other  parties.      221'Mass.  20, 

222  Mass.  355,  456.  227  Mass.  146,  253.  230  Mass.  370. 

223  Mass.  471.  228  Mass.  318.  584,  594.  232  Mass.  368.  560. 

224  Mass.  125.  310,  531.  229  Mass.  316,  348.  234  Mass.  174. 

225  Mass.  580. 

1  t  §  II  Section  133.     If,  at  law,  in  equity  or  in  probate  proceedings,  Affirmance  of 

2  an  appellant  or  an  excepting  party,  or,  in  a  case  reported  after  a  verdict,  iou?t  appeaLd 

3  finding  or  decision,  the  party  at  whose  request  it  is  reported,  or,  in  a  case  is°2o,'79,§54,5. 


2488 


PLEADING  AND   PRACTICE. 


[Chap.  231. 


R.  S.  82,  §  10. 
G.  S.  112,  §  16. 
P.  S.  150,  §  16. 
1888,  94. 

1895,  153,  §  2. 

1896,  451. 
1900,  372,  §  1. 
R.  L.  173, 

§  115. 
1915,111. 

1918,  257, 
§433. 

1919,  5. 

1920,  2. 

3  Cush.  25. 

150  Mass.  56, 

57. 

161  Mass.  593. 

213  Mass.  194. 

230  Mass.  SOO. 

236  Mass.  326. 


reported  without  decision  under  section  one  hundred  and  eleven,  the  4 
phiintifT,  neglects  to  enter  the  appeal,  exceptions  or  report  in  the  supreme  5 
judicial  court  or  to  take  the  necessary  measures  by  ordering  proper  copies  6 
to  be  prepared  or  otherwise  for  the  hearing  of  the  case,  or  if  an  excepting  7 
party  neglects  to  provide  a  transcript  of  the  evidence  or  of  the  instruc-  8 
tions  to  the  jury  within  the  time  ordered  by  the  justice  under  section  one  9 
hundred  and  twenty-one,  the  court  in  which  the  appeal  was  taken  or  by  10 
which  the  exceptions  were  allowed  or  the  case  reported  may,  upon  the  1 1 
application  of  the  adverse  party  and  after  notice  to  all  parties  interested,  12 
order  the  appeal  dismissed,  the  exceptions  overruled  or  the  report  dis-  13 
charged,  and  thereupon,  in  the  case  of  appeal  or  exceptions,  the  decision,  14 
ruling,  order  or  decree  appealed  from,  or  excepted  to,  shall  be  in  full  force  15 
and  effect.  Whenever  after  the  entry  in  the  supreme  judicial  or  the  su-  16 
perior  court  of  a  decree  after  rescript  from  the  full  bench  of  the  supreme  17 
judicial  court  in  a  suit  in  equity  or  in  probate  proceedings,  an  appeal  is  18 
claimed  from  the  decree,  the  justice  by  whom  or  by  whose  order  the  19 
decree  was  entered  may  inquire  into  any  reasons  assigned  for  the  ap-  20 
peal,  and  if  he  deems  that  the  decree  conforms  to  the  terms  of  the  rescript  21 
and  the  appeal  is  claimed  merely  for  the  purpose  of  delay,  he  may  order  22 
the  appeal  dismissed,  and  such  proceedings  may  forthwith  be  had  and  23 
such  processes  may  forthwith  issue  as  are  necessary  to  carry  out  the  24 
provisions  of  the  decree.  And  if  a  further  appeal  is  claimed  from  an  25 
order  so  dismissing  an  appeal  it  shall  not  operate  to  suspend  or  supersede  26 
the  carrying  into  effect  of  the  terms  of  the  decree,  and  the  full  bench  of  27 
the  supreme  judicial  court  may  order  such  dismissal  of  appeal  affirmed  28 
and  the  imposition  of  reasonable  terms  and  double  costs  to  the  appellee.  29 


Waiver  of 
appeal  or 
exceptions. 
1900,  372,  §  2. 
R.  L.  173, 
§  116. 
1907,  546,  §  1. 


Entry  of 
exceptions, 
etc.,  in  law 
docket. 
1859.  196, 
§§  26,  27,  34, 
44. 

G.S.  112,  §33; 
115,  §  12. 
1864,  111. 
P.  .S.  153,  §  15. 
1883,  223,  §  2. 
R.  L.  159,  §  19; 
173,  §  117. 
1911,284,  §  1. 
6  Allen,  240. 


Waiver  of  Appeal  or  Exceptions. 

*  t  §  II  Section  134.    A  wTitten  waiver  of  an  appeal  or  of  exceptions  in  1 

any  civil  proceeding  may  be  filed  and  acted  upon  in  the  court  in  which  2 

they  were  taken  at  any  time  before  the  entry  thereof  in  the  appellate  3 

court;  but  in  any  case  where  an  attachment  of  property  has  been  made,  4 

no  appeal  shall  be  waived  except  by  leave  of  court  after  notice  to  the  5 

adverse  party.  6 

Transmission  of  Papers. 

till  Section  135.     Copies  and  papers  relating  to  a  question  of  law  1 

arising  in  the  supreme  judicial,  the  superior  or  the  land  court,  upon  ap-  2 

peal,  exception,  reservation,  report  or  otherwise,  shaU  be  prepared  by  3 

the  clerk  of  the  court,  and  shall  thereupon  be  transmitted  to  and  entered  4 

on  the  docket  of  the  full  court  for  the  proper  county  as  soon  as  may  be  5 

after  such  question  of  law  has  been  reserved  and  duly  made  a  matter  6 

of  record  in  the  court  in  which  the  action  is  pending.    The  entry  thereof  7 

shall  not,  except  in  equity,  transfer  the  case,  but  only  the  question  to  be  8 

determined.  9 


99  Mass.  530. 
103  Mass.  530. 
114  Mass.  96,  514. 
116  Mass.  333. 


154  Mass.  107. 
161  Mass.  693. 
208  Mass.  528. 
222  Mass.  218. 


220  Mass.  143. 
233  Mass.  420. 
236  Mass.  600. 


Arrest  of  Judgment. 
A  judgment  shall  not  be  arrested  for  a  cause  exist- 


*  t  Section  136. 
\  32.  iiig  before  the  verdict  or  finding,  unless  such  cause  affects  the  jurisdiction 


Arrest  of 
judgment. 
1851,233,  i 

G*l.' 129,' 1 79.'  of  the  court.     After  the  defendant  has  appeared  and  answered  to  the 


ClL\P.  231.]  PLEADING  AND   PRACTICE.  2489 

4  merits  of  the  action,  no  defect  in  the  wTit  or  other  process  by  which  he  p.  s.  i67,  §  82. 

5  has  been  brought  before  the  court,  or  in  the  service  thereof,  shall  be  f'ns.^'^' 

6  considered  to  affect  the  jurisdiction  of  the  court. 

1  Gray,  172.  104  Mass.  373.  178  Mass.  397. 

4  Gray,  201.  110  Mass.  317.  182  Mass.  360. 

7  Gray,  543.  118  Mass.  569.  202  Mass.  480. 

13  Gray,  392.  127  Mass.  316.  204  Mass.  34. 

14  Gray,  521.  144  Mass.  470.  208  Mass.  55. 

15  Gray,  52.  150  Mass.  292,  451.  224  Mass.  14.  169. 
1  Allen,  244.  162  Mass.  339.  227  Mass.  46,  336. 

GENERAL    PROVISIONS. 

1  *  t  §  II  Section  1.37.     The  coiu-t  may  allow  suggestions  as  to  changes  Suggestions 

2  occurring  in  an  action  after  its  commencement  to  be  entered  on  the  record?  °° 

3  record  in  such  form  as  it  approves.  i826, 7o. 

R.  S.93,  §24.  G.  S.  129,  §80.  P.  S.  167,  §  S3.  R.  L.  173,  §  119. 

1  *  t  H  Section  138.     The  cause  of  action  shall  be  considered  to  be  identification 

2  the  same  for  which  the  action  was  brought,  if  the  coiu-t  finds  it  to  be  &ltk,nT "' 

3  the  cause  of  action  relied  on  by  the  plaintiff  when  the  action  was  com-  l^^^eZ^"*" 

4  menced,  however  the  same  may  be  misdescribed ;  and  the  allowance  by  Pj^J"^'  ^pp^"'- 

5  the  coiu-t  of  an  amendment  shall  be  conclusive  evidence  of  the  identity  i||i.  233,  §  43. 

6  of  the  cause  of  action.     But  no  subsequent  attaching  creditor  or  piu-  g.s.'i29,'§82.' 

7  chaser  of  property  attached  or  bail  or  any  person  other  than  the  parties  r'.  l.  173, 

8  to  the  record  shall  be  bound  by  such  allowance  unless  he  has  had  due  Icus'h.  sis. 

9  notice  of  the  application  for  leave  to  amend  and  opportunity  to  be  heard  I  Alien',  lis. 


Allen,  322. 
Allen,  202. 


10  thereon,  according  to  an  order  of  notice  to  that  effect  to  be  issued  by  f 

11  the  court  upon  application  of  the  plaintiff,  and  such  third  parties  shall  '.^^  Fj^^^- 1?° 

12  have  the  right  of  exception  or  appeal.  125  Mass.  72. 

127  Mass.  599.  170  Mass.  260,  215  Mass.  83,  199. 

133  Mass.  421.  262,  560.  218  Mass.  231. 

134  Mass.  280.  174  Mass.  349.  219  Mass.  164,  285. 
136  Mass.  335.  190  Mass.  554.  225  Mass.  37.  599. 
139  Mass.  280.  200  Mass.  284.  226  Mass.  71. 

142  Mass.  124.  201  Mass.  248.  227  Mass.  375. 

147  Mass.  342.  204  Mass.  13.  229  Mass.  1. 

150  Mass.  473.  211  Mass.  446.  230  Mass.  27S. 

151  Mass.  454.  214  Mass.  239.  231  Mass.  422. 

1  *  t  §  II  Section  139.     If  a  corporation  is  a  party  to  an  action  or  pro-  Affidavit  when 

2  ceeding  referred  to  in  this  chapter,  all  precepts,  answers,  replications  or  ^a'^part.l™ 

3  other  papers  requiring  the  signature  or  oath  of  the  party  may  be  signed  q°|'  ji^'  I  If 

4  or  sworn  to  in  behalf  of  the  corporation  by  an  officer  or  agent  thereunto  ps.  ib|.'|  sb. 

5  specially  authorized. 

1  *  Section  140.     No  action  at  law  shall  be  discontinued,  nor  shall  the  Action  not  to 

2  plaintiff  in  any  such  action  become  nonsuit  after  the  action  shall  have  ued'^S'te?*"'' 

3  been  referred  to  an  auditor  and  hearings  before  such  auditor  have  been  {'oaudUor"'''^ 

4  begun,  except  with  the  WTitten  consent  of  the  defendant  or  in  the  dis-  fQi|P*;/-*'^i 

5  cretion  of  the  court.  2i8  Mass.  271.  235  Mass.  304. 

1  Section  141.    Sectionsone,  two,  three,  four,  five, six,  seven,  ten,  eleven,  Sections 

2  twelve,  thirteen,  fourteen,  fifteen,  sixteen,  seventeen,  eighteen,  nineteen,  cwiiaSnl° 

3  twenty,  twenty-one,  twenty-two,  twenty-tliree,  twenty-five,  twenty-sLx,  coSts.'^'^'"'" 

4  twenty-seven,  twenty-eight,  twenty-nine,  thhty,  thhty-one,  thirty-two,  J|^^;  i||'  |  ^-^ 

5  thirty-tliree,  thirty-foiu-,  tlurty-fi\'e,  thirty-six,  thirty-seven,  thirty-eight,  c^J-  ff-  §  s^- 

6  thirty-nine,  forty,   forty-one,   forty-two,   forty-three,  forty-four,  forty-  issi!  113. 

7  five,  forty-seven,  fortv-eight,  forty-nine,  fiftv,  fifty-one,  fifty-two,  fifty-  §§89,92. 

8  three,  fifty-four,  fifty-sbc,  fifty-seven,  fifty-eight,  sLxty-one,  sLxty-two,  H:  III  ^  '^• 

9  sixty-three,    sLxty-four,    sLxty-five,    sixty-sLx,    sLxty-seven,    sixty-eight,  lU'^'  ^^"^ 


2490 


PLEADING  AND  PRACTICE. 


[Chap.  231. 


1913,  307. 
1917,  326. 
1918,257,  §430. 

1919,  S. 

1920,  2. 

See  sections 
noted  thus,*. 


sixty-nine,  seventy,  seventy-two,  seventy-three,  seventy-four,  seventy-  10 

five,  seventy-nine,   eighty-five,   eighty-seven,   eighty-eight,   eighty-nine,  11 

ninety,   ninety-one,   ninety-two,   ninety-three,   ninety-four,  ninety-five,  12 

ninety-seven,  ninety-eight,  ninety-nine,  one  hundred,  one  hundred  and  13 

one,  one  hundred  and  two,  one  hundred  and  thirty-four,  one  hundred  and  14 

thirty-six,  one  hundred  and  thirty-seven,  one  hundred  and  thirty-eight,  15 

one  hundred  and  thirty-nine,  one  hundred  and  forty  and  one  hundred  and  16 

forty-seven  shall  apply  to  civil  actions  before  district  courts,  and  no  other  17 

sections  of  this  chapter  shall  so  apply,  except  to  the  miuiicipal  court  of  the  18 

city  of  Boston  under  section  one  hundred  and  forty-three.  19 


Sections 
applicable  to 
real  and  mixed 
actions,  except, 
etc. 

1851,  233,  I  65. 

1852,  312,  §  51. 
G.  S.  129,  §  84. 
1881,  113. 
P.S.I 67,  §88. 
H.  L.  173, 
§124, 

1913,  815,  §  S. 

See  sections 
noted  tlniB,t. 


Section  142.  Sections  eight,  twelve,  thirteen,  fifteen,  sixteen,  seven-  1 
teen,  eighteen,  nineteen,  twenty,  twenty-one,  twenty-two,  twenty-three,  2 
thirty,  thirty-one,  thirty-five,  thirty-nine,  forty-two,  forty-three,  forty-  3 
four,  forty-five,  forty-seven,  forty-eight,  forty-nine,  fifty,  fifty-one,  fifty-  4 
two,  fifty-tliree,  fifty-four,  fifty-six,  fifty-seven,  fifty-eight,  sixty,  sixty-one,  5 
sixty-two,  sixty-tliree,  sixty-four,  sixty-fi\-e,  sixty-six,  sixty-seven,  sixty-  6 
eight,  seventy-one,  seventy-two,  seventy-three,  seventy-six,  seventy-seven,  7 
seventy-eight,  seventy-nme,  eighty,  eighty-one,  eighty-three,  eighty-seven,  8 
eighty-nine,  ninety,  ninety-six,  one  hundred  and  eleven,  one  hundred  and  9 
twelve,  one  hundred  and  thirteen,  one  hundred  and  fourteen,  one  hun-  10 
dred  and  fifteen,  one  hundred  and  sixteen,  one  hundred  and  seventeen,  11 
one  hundred  and  eighteen,  one  hundred  and  nineteen,  one  hundred  and  12 
twenty,  one  hundred  and  twenty-one,  one  hundred  and  twenty-two,  one  13 
hundred  and  twenty-three,  one  hundred  and  twenty-four,  one  hundred  and  14 
twenty-five,  one  hundred  and  twenty-six,  one  hundred  and  twenty-seven,  15 
one  hundred  and  twenty-eight,  one  hundred  and  twenty-nine,  one  hun-  16 
dred  and  tliirty,  one  hundred  and  thirty-one,  one  hundred  and  thirty-  17 
two,  one  hundred  and  thirty-tlu-ee,  one  hundred  and  tliirty-four,  one  18 
hundred  and  thirty-five,  one  hundred  and  thirty-six,  one  hundred  and  19 
thirty-seven,  one  hundred  and  thirty-eight  and  one  hundred  and  thirty-  20 
nine  shall  apply  to  such  real  and  mixed  actions  as  may  be  begun  in  the  21 
superior  court,  and  to  all  proceedings  before  the  land  coiu-t,  or  begun  22 
there  and  pending  on  issues  to  a  jury  in  the  superior  court,  to  which  23 
they  are  applicable,  and  no  other  sections  of  this  chapter  shall  so  apply  24 
except  by  their  express  language.  25 


Sections 
applicable  to 
civil  actions 
before 
municipal 
court  of 
Boston. 
1867,  355,  §  2. 
P.S.  167,  §91. 

1893,  396,  §  23. 

1894,  431,  §  2. 
R.  L.  173, 
§128. 

1914,  35,  §  1. 


Section  143.     Sections  seventy-one,  eighty-sLx,  one  hundred  and  three,  1 

one  hundred  and  four,  one  hundred  and  five,  one  hundred  and  six,  one  2 

hundred  and  seven,  one  hundred  and  eight,  one  hundred  and  nine,  one  3 

hundred  and  ten,  one  hundred  and  twenty-four,  one  hundred  and  twenty-  4 

five,  one  hundred  and  twenty-six  and  one  hundred  and  thirty-two,  in  5 

addition  to  those  named  in  section  one  hundred  and  forty-one,  shall  6 

apply  to  civil  actions  before  the  municipal  court  of  the  city  of  Boston,  7 

and  no  other  sections  of  this  chapter  shall  so  apply.  8 

See  sections  noted  thus,  t. 


Sections 
applicable  to 
equity  and 
probate  cases. 


Section  144.  Sections  six,  thirty,  thirty-one,  thirty-five,  forty-nine, 
fifty-one,  fifty-two,  sixty-one,  sixty-two,  sixty-tliree,  sL\ty-four,  sLxty- 
1913, 815,  §  8.  five,  sixty-six,  sixty-seven,  sixty-eight,  seventy-one,  eighty-one,  eighty- 
See  sections  three,  cighty-scven,  eighty-nine,  ninety-six,  one  hundred  and  twelve,  one 
hundred  and  thirteen,  one  hundred  and  fourteen,  one  hundred  and 
fifteen,  one  hundred  and  se\-enteen,  one  hundred  and  eighteen,  one  hun- 
dred and  nineteen,  one  hundred  and  twenty,  one  hundred  and  twenty- 


noted  thus,  §. 


CH-VP.  231.]  PLEADING  AND   PRACTICE.  2491 

8  one,  one  hundred  and  twenty-foiu-,  one  hundred  and  twenty-five,  one 

9  himdred  and  twenty-six,  one  hundred  and  twenty-seven,  one  hundred 

10  and  twenty-eight,  one  hundred  and  twenty-nine,  one  hundred  and  thirty, 

1 1  one  hundred  and  thirty-one,  one  hundred  and  tliirty-two,  one  hundred 

12  and  tliirty-three,  one  hundred  and  tliirty-four,  one  hundred  and  thirty- 

13  fi\e,  one  hundred  and  tliirty-seven  and  one  hundred  and  thirty-nine 

14  shall  apply  to  suits  in  equity,  and  also  to  proceedings  in  the  probate 

15  courts  and  in  the  supreme  judicial  court  upon  an  appeal  from  a  probate 

16  coiu-t,  so  far  as  they  are  applicable. 

1  Section  145.     Sections  six,  thirty,  thirty-one,  thirty-five,  fifty-one.  Sections 

2  fifty-two,  sixty-one,  sixty-two,  sixty-three,  sLxty-four,  sixty-five,  sixty-  eSim'ent 

3  six,  sixty-seven,  sixty-eight,  seventy -one,  eighty-one,  eighty-three,  eighty-  betterment' 

4  seven,  eighty-nine,  one  hundred  and  eleven,  one  hundred  and  twehe,  ^gi'g.'sss, 

5  one  hundred  and  thirteen,  one  hundred  and  fourteen,  one  hundred  and  f^2o''2^"' 

6  fifteen,  one  hundred  and  seventeen,  one  hmidred  and  eighteen,  one  „     '    . 

7  hundred  and  nineteen,  one  hundred  and   twenty,  one   hundred  and  noted  thus,  ||. 

8  twenty-one,  one  hundred  and  twenty-two,  one  hundred  and  twenty- 

9  tlu-ee,  one  hundred  and  twenty-foiu",  one  hundred  and  twenty-fi^■e,  one 

10  hundred  and  twenty-six,  one  hundred  and  twenty-seven,  one  hundred 

1 1  and  twenty-eight,  one  hundred  and  twenty-nine,  one  hundred  and  thirty, 

12  one  hundred  and  tliirty-one,  one  hundred  and  tliirty-two,  one  hundred 

13  and  thirty-three,  one  hundred  and  thirty-foiu-,  one  hundred  and  thirty- 

14  fi\'e,  one  hundred  and  thirty-seven  and  one  hundred  and  tliirty-nine 

15  shall  apply  to  petitions  for  damages  by  taking  by  eminent  domain  and 

16  for  abatement  of  betterment  assessments. 

1  Section  146.    Sections  twelve,  twenty-nine,  forty-two,   forty-three.  Sections 

2  forty-four,    forty-five',    forty-seven,    forty-eight,    fifty-five,    fifty-eight,  equity! 

3  seventy-four,  seventy-five,  eighty-eight,  ninety,  and  one  hundred  and  see  sections 

4  thirty-eight,  in  addition  to  those  named  in  section  one  hundred  and  i°'«i  thus,  it. 

5  forty-four,  shall  apply  to  suits  in  equity. 

FORMS. 

1  *  Section  147.     The  following  forms  of  pleadings  may  be  used  for  the  Forms. 

2  purposes  therein  indicated,  and  similar  forms  with  the  necessary  changes  is52;3i2',  §84.' 

3  may  be  used  for  other  like  purposes,  subject  to  such  changes  as  the  su-  p.'I.'iIt.'IoI." 

4  preme  judicial  coiu-t  may  from  time  to  time  by  general  rules  prescribe;  f\3o^^^' 

5  but  any  other  suitable  forms  may  also  be  used :  223  Mass.  568.  200  Mass.  232. 

Declaeations  in  Actions  or  Contract. 

1.      COMMON    COUNTS. 

And  the  plaintiff  says  that  the  defendant  owes  him  one  hundred  dollars  for  —  3  Gray,  2r,i. 
(«)  Money  had  and  received.  —  Money  received  by  the  defendant  to  the  LH^"-^'  ^fon 

plaintiS's  use.  99  Mass.  194.  103  Mass.  556.  "'^' 

120  Mass.  465.  139  Mass.  230.  164  Mass.  54,  118.  177  Mass.  36.  280. 

128  Mass.  377.  161  Mass.  516.  167  Mass.  77.  202  Mass.  75. 

(6)  Money  lent.  ■ —  Money  lent  by  the  plaintiff  to  the  defendant.  16  Gray,  273. 

(c)  Goods  sold.  —  Goods  sold  by  the  plaintiff  to  the  defendant.  7  Grt''"i87*"'" 

106  Mass.  430.  112  Mass.  265.  190™^' 

((/)  Work.  ■ —  Work  done  by  the  plaintiff  for  the  defendant.  4  Gray,  292. 

112  Mass.  299.  127  Mass.  546.  177  Mass.  1.  9  Allen,  355. 

(e)   Work  and  Materials.  —  Work  done  and  materials  provided  by  the  plaintiff  loo  Mass.  92. 
for  the  defendant.  177  Mass.  584.  ^^*  ^^"^^^  "• 


2492  PLEADING  XST)   PRACTICE.  ,  [Ch.U'.  231. 

Ill  Mass.  390.        ^^   Board,  or  Board  and  Lodging.  —  Board  (and  lodging)  furnished  by  the 
plaintiff  for  the  defendant. 

[g)  Carriage  of  Goods.  —  The  carriage  of  certain  goods  by  the  plaintiff  for 
the  defendant. 

(/()  Warehouse  Room.  —  Warehouse  room  furnished  by  the  plaintiff  for  the 
storage  of  certain  goods  for  the  defendant.  ' 

(?')   Hire  of  Personal  Property.  —  The  use  of  a  certain  horse  and  carriage  hired 
of  the  plaintiff  by  the  defendant. 
i29^Ma's's^50  0)   Insimvl  computassent.  —  The  balance  found  due  to  the  plaintiff  by  the 

170  Mass.' 422.    parties  on  accounting  together. 

11  Cush.  366.  (^-)  jjgg  and  Occupation.  —  The  use  and  occupation  of  a  certain  tenement 

103  Ma's3.^379.    hired  of  the  plaintiff  by  the  defendant.  124  Mass.  123. 

138  Mass.  363.  164  Mass.  391.  170  Mass.  278.  172  Mass.  329. 


1915, 146,  §  2.         g-j    11(^1  ■under  a  Sealed  Instrument.  ■ —  The  rent  of  a  certain 

(house,  or  building,  or  land)  held  by  the  defendant  of  the  plaintiff. 

Bill  of  Paetictlaes. 

(1)  Rent  of  house  No.  street, 

,  for  one  month,  due  1st  July,  19        ,  under  an  indenture  of  lease 
dated   1st  Januarj',   19         ,   S 

(2)  Interest  on  same  from  ,  S 

Instruction:  Interest  is  declared  on  by  adding  or  inserting  the  ■words  "and 
interest".    An  item  of  interest  is  also  included  in  the  bill  of  particulars. 

2.  ACCOI~N'T  A.'SyrEXED. 

And  the  plaintiff  says  that  the  defendant  owes  him  dollars, 

according  to  the  account  hereto  annexed. 

3.  PROMISSORY  NOTES. 

10  Allen,  556.  ^^■^  Payee  against  Maker.  —  And  the  plaintiff  says  that  the  defendant  made 

a  promissory  note  payable  to  the  plaintiff  or  order,  a  copy  -n-hereof  is  hereto 
annexed,  and  the  defendant  owes  the  plaintiff  the  amount  thereof,  and  interest. 

(b)  Bearer  of  Note  payable  to  Bearer  against  Maker.  —  And  the  plaintiff  says 
that  the  defendant  made  a  promissory  note,  a  copy  whereof  is  hereto  annexed 
payable  to  G  H  or  bearer,  and  the  plaintiff  is  the  bearer  of  the  said  note,  and 
the  defendant  owes  him  the  amount  thereof,  and  interest. 

Instruction:  If  pajTQents  are  endorsed  on  the  note,  the  declaration  may  be 
varied  as  follows:  "a  copy  whereof,  with  the  endorsements  thereon,  is  hereto 
annexed,  and  the  defendant  owes  the  plaintiff  the  balance  thereof,  and  interest". 
If  pa\-ments  have  been  made  which  are  not  endorsed  on  the  note,  the  allegation 
should  be  varied  accordingly. 

(c)  Endorsee  against  Endorser.  —  And  the  plaintiff  says  that  C  D  made  a 
promissory  note,  a  copy  whereof  ■n-ith  the  endorsements  thereon  is  hereto  an- 
nexed, payable  to  the  defendant  or  order,  and  the  defendant  endorsed  the  same 
to  the  plaintiff,  and  payment  of  the  said  note  was  duly  demanded  of  the  said 
C  D,  who  neglected  to  pay  the  same,  and  due  notice  thereof  was  given  to  the 
defendant.  And  the  defendant  owes  the  plaintiff  the  amount  of  the  said  note, 
and  interest. 

(rf)  Endorsee  against  Maker  and  Successive  Endorsers.  ■ —  And  the  plaintiff  says 
that  the  defendant  C  D  made  a  promissory  note,  a  copy  whereof  with  the  en- 
dorsements thereon  is  hereto  annexed,  payable  to  the  defendant  E  F  or  order, 
and  the  said  E  F  endorsed  the  same  to  the  defendant  G  H  or  order,  and  the 
said  G  H  endorsed  the  same  to  the  plaintiff,  and  pajinent  of  the  said  note  was 
duly  demanded  of  the  defendant  C  D  who  neglected  to  pay  the  same,  and  due 
notice  thereof  was  given  to  the  defendants  E  F  and  G  H.  And  each  of  the 
defendants  severally  owes  the  plaintiff  the  amount  of  the  said  note,  and  interest. 

(e)  Payee  against  Anomalo^is  Endorser.  —  And  the  plaintiff  says  that  A  B 
made  a  promissory  note  payable  to  the  plaintiff  or  order,  a  copy  whereof,  with 
the  endorsements  thereon,  is  hereto  annexed,  and  the  defendant  endorsed  the 
said  note  before  it  was  delivered  to  the  plaintiff,  and  payment  of  the  said  note 
was  duly  demanded  of  the  said  A  B,  who  neglected  to  pay  the  same,  and  due 
notice  thereof  was  given  to  the  defendant.  And  the  defendant  owes  the  plaintiff 
the  amount  of  the  said  note,  and  interest. 


R.  L.  173,  §  3. 


CH.iP.  231.]  PLE.\DmG  AND  PRACTICE.  2493 

(/)  Endorsee  against  Anomaloiis  Endorser.  —  And  the  plaintiff  says  that 
A  B  made  a  promissory  note  payable  to  C  D,  a  copy  whereof,  with  the  endorse- 
ments thereon,  is  hereto  annexed,  and  the  defendant  endorsed  the  same  before  it 
was  delivered  to  C  D,  and  C  D  endorsed  it  to  the  plaintiff,  and  pa^Tiient  of  the 
said  note  was  duly  demanded  of  the  said  A  B,  who  neglected  to  pay  the  same, 
and  due  notice  thereof  was  given  to  the  defendant.  And  the  defendant  owes 
the  plaintiff  the  amount  of  the  said  note,  and  interest. 

4.   GRANTEE  AGAINST  GRANTOB  IN  A  DEED  OF  WARRANTY  FOR  BREACHES  OF 

COVENANT. 

And  the  plaintiff  says  that  the  defendant  made  a  deed  of  conveyance  to  him, 
a  copy  whereof  is  hereto  annexed.  And  the  defendant  was  not  seized  in  fee 
simple  of  a  part  of  the  land  described  as  follows:  {insert  description)  but  the 
same  was  held  adversely  by  L  M.,  and  the  residue  of  the  said  land  was  not  free 
from  encumbrances,  but  was  subject  to  a  mortgage  to  S  T  to  secure  the  payment 
of  six  hundred  dollars.  And  the  defendant  did  not  warrant  and  defend  the 
premises  against  the  rightful  claims  of  all  persons,  but  W  S  had  a  right  of 
dower  therein,  and  compelled  the  plaintiff  to  assign  the  same  to  her. 

5.      ON  AN  AWARD. 

And  the  plaintiff  says  that  the  parties  hereto  by  their  agreement  in  -nTiting, 
a  copy  whereof  is  hereto  annexed,  referred  the  matters  therein  mentioned  to 
arbitrators,  and  the  said  arbitrators  made  an  award  thereon  in  writing,  a  copy 
whereof  is  hereto  annexed.  {Aver  performance  of  condition  by  plaintiff,  when 
necessary  to  be  proved,  and  the  non-performance  by  the  defendant,  ivhich  is  relied 
on.  If  it  is  for  the  mere  payment  of  money,  aver  as  follows:  And  the  defendant 
owes  the  plaintiff  the  amount  of  the  said  award.) 

6.   PROMISE  TO  P.iY  THE  DEBT  OF  ANOTHER. 

And  the  plaintiff  says  that  E  F  owed  him  the  sum  of  for 

,  and  the  plaintiff  was  about  to  sue  the  said  E  F  to  recover 
the  same.  And  in  consideration  that  the  plaintiff  would  forbear  to  sue  the  said 
E  F,  the  defendant  made  an  agreement  to  pay  the  same  to  the  plaintiff,  a  copy 
whereof  is  hereto  annexed,  and  the  plaintiff  did  forbear  to  sue  the  said  E  F,  and 
the  defendant  owes  liim  the  said  sum. 

7.   AGREEMENT  TO  CON'^'EY  LANT),  THE  PLAINTIFF  TO  PAT  IN  PART  AND  GrV'E  A 
NOTE  FOR  THE  BALANCE  SECURED  BY  A  MORTGAGE  OF  THE  LAND. 

And  the  plaintiff  says  that  the  defendant  made  an  agreement  with  him  in 
WTiting,  a  copy  whereof  is  hereto  annexed.  And  the  plaintiff  was  ready  and 
willing  {or  offered)  to  perform  the  said  agreement  on  his  part.  But  the  defendant 
did  not  complete  the  said  sale  [or  refused  {or  neglected)  to  convey  the  said  land 
to  the  plaintiff]. 

N'ote.  • —  The  form  in  P.  S.,  p.  977,  did  not  state  a  breach.  It  is  not  right  to  allege 
tender  of  monev  and  mortgage,  and  all  that  is  required  is  to  be  ready  and  willing,  Tiuney 
V.  Ashley.  15  Pick.  546;  Cook  v.  Doggett,  2  Allen,  439;  Cole  v.  Killam,  187  Mass.  213; 
2  Chitty  PI.  (13th  Am.  ed.)  287.  It  would  be  improper  for  the  plaintiff  to  execute  a  mort- 
gage before  he  got  a  conveyance. 

8.   BREACH  OF  PROMISE  OF  MARRIAGE. 

And  the  plaintiff  says  that  she  and  the  defendant  promised  to  marry  each 
other  and  she  was  always  ready  and  willing  to  marry  the  defendant,  but  the 
defendant  refused  to  perform  his  promise. 

9.      NOX-DELIVERY    OF    GOODS    SOLD. 

And  the  plaintiff  says  that  he  purchased  of  the  defendant  the  following  goods, 
namely,  for  the  sum  of  one  hundred  dollars,  to  be  paid  for  on 

delivery  and  to  be  delivered  by  the  defendant  on  the  day  of 

at  the  defendant's  store.  And  the  plaintiff  was  ready  and 
willing  {or  offered)  to  perform  the  said  agreement  on  his  part.  But  the  de- 
fendant refused  to  deliver  the  said  goods  to  the  plaintiff. 

Nole.  —  See  note  to  form  7  as  to  purchase  of  land,  and  2  Chitty  PI.  (13th  Am.  ed.)  209. 


2494  PLEADING  AND  PRACTICE.  [Ch.\P.  231. 


10.      POLICIES   OF  INSURANCE. 

(With  or  without  copy  of  policy.) 

119  Mass.  592.  („)  Qn  a  Ship  for  a  Total  Loss.  —  And  the  plaintiff  says  that  the  defendants 
made  a  policy  of  insurance,  (a  copy  of  which  is  hereto  annexed,)  insuring  the 
plaintiff  for  the  sum  of  ten  thousand  dollars  on  the  ship  John,  in  which  the 
plaintiff  was  interested,  against  the  perils  of  the  seas  and  other  perils  therein 
mentioned,  on  a  voyage  therein  described  (or  from  Boston  to  Cadiz  in  Spain, 
and  at  Cadiz,  and  thence  to  her  port  of  discharge  in  the  United  States).  And 
the  said  ship,  while  proceeding  on  the  said  voyage,  was  wrecked  and  totally  lost 
by  the  perils  of  the  seas,  of  which  the  defendants  had  notice,  and  the  defendants 
were  bound  to  pay  the  said  amount  to  the  plaintiff  -nithin  sixty  days  thereafter. 
And  the  defendants  owe  the  plaintiff  the  said  sum  of  ten  thousand  doUars. 

(6)  For  a  Partial  Loss  and  Contrihution  to  a  General  Average.  —  {State  as 
in  the  last  cmmt  to  the  description  of  the  voyage  inclusive.)  And  the  defendants 
thereby  agreed  that,  in  case  of  any  loss  or  misfortune  to  the  said  ship,  it  should 
be  lawful  for  the  plaintiff  and  his  agents  to  labor  for  and  in  the  defence  and 
recovery  of  the  said  ship,  and  that  the  defendants  would  contribute  to  the 
charges  thereof  in  proportion  as  the  sum  assured  by  them  should  be  to  the  whole 
sum  at  risk.  {Omit  the  preceding  sentence  if  a  copy  of  the  policy  is  annexed.)  And 
the  said  ship,  while  proceeding  on  the  said  voyage,  was  by  the  perils  of  the  seas 
dismasted,  and  otherwise  damaged  in  her  hull,  rigging,  and  appurtenances, 
and  it  was  necessary,  for  the  preservation  of  the  said  ship  and  her  cargo,  to 
throw  over  a  part  of  her  cargo,  and  the  same  was  thrown  over  for  that  purpose, 
and  the  plaintiff  was  obliged  to  expend  two  thousand  dollars  for  repairing  the 
said  ship  at  Cadiz,  and  five  hundred  dollars  as  a  contribution  for  the  loss  oc- 
casioned by  the  said  throwing  over  of  a  part  of  the  cargo,  and  the  ship  suffered 
damage  that  was  not  repaired  at  Cadiz,  of  all  which  the  defendants  had  notice, 
and  the  defendants  were  bound  to  pay  the  same  within  sixty  days  thereafter. 
And  the  defendants  owe  the  plaintiff  the  sum  of  dollars. 

(f)  For  a  Total  Loss  of  Cargo  by  Fire.  —  And  the  plaintiff  says  that  the  de- 
fendants made  a  policy  of  insurance,  (a  copy  of  which  is  hereto  annexed)  in- 
suring the  plaintiff  for  the  sum  of  ten  thousand  dollars  on  the  cargo  of  the 
brigantine  WilUam,  in  which  cargo  the  plaintiff  was  interested,  against  fire 
and  other  perils  therein  mentioned,  at  and  from  Boston,  and  on  a  voyage  from 
thence  to  Hamburg,  or  any  other  port  or  ports  in  the  north  of  Europe,  and 
while  the  said  vessel  was  proceeding  on  the  said  voyage  the  said  cargo  was 
totally  destroyed  by  fire,  of  which  the  defendants  had  notice,  and  the  de- 
fendants were  bound  to  pay  the  plaintiff  the  amount  of  such  loss.  And  the 
defendants  owe  the  plaintiff  the  sum  of  ten  thousand  dollars. 

Note.- — These  forms  were  adapted  in  1851,  233,  from  those  in  24  Pick.  406,  but  they 
did  not  mention  the  plaintiff's  interest,  as  the  latter  did.  They  were  not  intended  to  have 
a  copy  of  the  policy  annexed,  and  that  change  was  made  in  1852,  in  view  of  which  the 
alternative  methods  of  declaring  noted  in  the  forms  may  be  used.  It  is,  however,  better 
pleading  to  set  out  the  essential  facts  in  the  declaration,  and  avoid  encumbering  the  plead- 
ings with  copies. 

(d)  Fire  Insurance.  —  And   the  plaintiff  says  that  by  a  policy  dated  the 
day  of  19        ,  made  by  the  defendant  in  the  form  of  a 

Massachusetts  Standard  Policy,  {or  a  copy  of  which  is  hereto  annexed,)  in  con- 
sideration of  $  paid  to  the  defendant  by  the  plaintiff  {or  A  F)  the 
defendant  insured  the  plaintiff  (or  A  F)  against  loss  or  damage  by  fire  to  the 
amount  of  $  on  a  dwelling  house  in  the  said  policy  described  (and 
$  on  the  furniture  and  goods  in  the  said  dwelling  house)  for  a  year 
from  the  day  of  19  at  noon  to  the 
day  of  19  at  noon  (and  payable  in  case  of  loss  to  M  F  and 
the  plaintiff  as  their  interest  might  appear).  And  the  plaintiff  at  the  time  of 
the  making  of  the  said  policy  and  thenceforth  until  and  at  the  time  of  the  loss 
and  damage  hereinafter  mentioned  was  interested  in  the  several  premises  so 
insured  to  the  amount  so  insured  thereon  respectively  {or  in  the  dwelling 
house  so  insured  as  mortgagee  thereof  to  the  amount  so  insured  thereon  in 
priority  to  any  interest  of  the  said  M  F  therein).  And  while  the  said  policy 
was  in  force  and  during  the  said  year  the  several  premises  {or  the  said  dwelling 
house)  so  insured  were  {or  was)  burnt  and  destroyed  by  fire,  whereby  the  plain- 
tiff suffered  loss  and  damage  on  the  said  premises  {or  dweUing  house)  (and  on 


Chap.  231.]  pleading  and  practice.  2495 

the  said  furniture  and  goods)  to  the  several  amounts  so  insured  thereon  respec- 
tively (or  othencise  according  to  the  facts).  And  thereafter  forthwith  and  more 
than  sixty  days  before  the  commencement  of  this  action  a  statement  was  duly 
rendered  to  the  defendant  in  accordance  with  the  provision  in  that  behalf  con- 
tained in  the  said  poHcy,  setting  forth  all  the  particulars  required  by  the  said 
provision  to  be  set  forth  therein  (or  in  case  of  waiver  of  the  statement  the  necessity 
of  the  statement  of  particulars  required  by  the  pro\asion  in  that  behalf  con- 
tained in  the  said  policy  was  waived  by  the  defendant),  and  the  amount  for 
which  the  defendant  was  liable  to  the  plaintiff  on  account  of  the  said  loss  and 
damage  was  agreed  by  them  to  be  $  [or  the  plaintiff  and  the  de- 

fendant having  failed  to  agree  as  to  the  amount  of  the  said  loss  and  damage, 
the  same  was  duly  referred  to  three  persons  as  provided  in  the  said  policy,  and 
by  the  award  in  writing  thereupon  made  by  the  (or  a  majority  of  the)  said 
referees  in  respect  thereof  the  amount  of  the  loss  and  damage  w^as  determined 
to  be  $  ]  {or  the  provision  in  the  said  policy  for  a  reference  as  to 

the  amount  of  the  said  loss  or  damage  was  waived  by  the  defendant).  And  the 
defendant  has  not  paid  to  the  plaintiff  the  amount  for  which  the  defendant 
was  so  liable  or  replaced  the  said  property,  and  owes  the  plaintiff  the  sum 
of  $ 

■Note.  —  This  form,  by  alleging  that  the  policy  was  in  the  Massachuset{s_etandard  form, 
makes  it  unnecessary  to  set  out  the  pro\'isions  prescribed  by  law  (Chap.  175,  §  99),  or  to 
load  the  files  of  the  court  with  copies  containing  proN'isions  immaterial  to  the  case.  As  to 
the  allegations  when  the  loss  is  payable  to  a  mortgagee,  see  Frisbee  v.  Prussian  Ins.  Co.,  223 
Mass.  159;  Palmer  Sa%'ings  Bk.  v.  Ins.  Co.  of  North  America,  166  Mass.  189.  Performance 
of  conditions  precedent  must  be  alleged  as  at  common  law.  R.  L.  173,  §  6  (11th);  Palmer 
II.  Sawyer,  114  Mass.  1;  2  Chitty  PI.  (13th  Am.  ed.)  224  n.,  or  a  reason  for  non-performance 
must  be  stated.  Lamson  Co.  v.  Prudential  Ins.  Co.,  171  Mass.  433;  Lamson  &  Goodnow 
Co.  V.  Russell,  112  Mass.  3S7. 

(e)   Life    Insurance. —  (I)     Action    by    Executor    (unihout    Coptj    of  PoKcj/).  138  Mass.  I5i. 
And  the  plaintiff  says  that  by  a  policy  dated  the  day  of 

19  made  by  the  defendant,  in  consideration  of  the  payment  of  premiums  by 
the  said  A  B  as  therein  provided,  the  defendant  insured  the  life  of  the  said  A  B 
in  the  sum  of  $  for  the  term  of  his  life  payable  at  the  office  of  the 

defendant  at  to  his  executors,  administrators,  or  assigns, 

immediately  upon  receipt  of  due  proof  of  his  death,  and  it  was  thereby  provided 
that  the  annual  premium  of  $  should  be  payable  by  the  insured  on 

deUvery  of  the  said  policy  and  on  the  day  of  in  each 

year  at  the  office  of  the  defendant  at  ,  or  to  its  agents  in  ex- 

change for  receipts  signed  by  its  president  or  treasurer,  until  ten  full  years' 
premiums  should  have  been  paid  or  until  the  death  of  the  insured  if  that  event 
should  sooner  occur,  and  that  the  said  policy  should  not  take  effect  unless  the 
first  premium  should  be  paid  during  the  lifetime  of  the  insured.  And  the  in- 
sured duly  paid  the  said  annual  premium  to  the  defendant  on  delivery  of  the 
said  policy  and  in  each  of  the  subsequent  years,  and  afterwards  and 

while  the  said  policy  remained  in  force  the  said  A  B  died,  and  due  proof  of  his 
death  was  produced  by  the  plaintiff  to  the  defendant,  and  the  said  sum  of 
$  thereupon  became  payable  by  the  defendant  to  the  plaintiff',  but 

no  part  thereof  has  been  paid.    And  the  defendant  owes  the  plaintiff  the  sum  of 

Instruction:  If  this  form  is  used,  any  warranties  or  conditions  precedent 
contained  in  the  policy  or  application  must  be  set  out,  and  the  truth  of  the 
warranties  and  performance  of  the  conditions  averred.  Copies  of  the  policy 
or  application,  or  both,  may  be  annexed  to  the  declaration,  in  which  case  such 
of  the  allegations  of  this  form  as  are  clearly  set  forth  in  such  copies  may  be 
omitted;  but  it  is  always  desirable  to  avoid  encumbering  the  record  with  bulky 
copies. 

(11)  Endovmient  Policy.  Action  by  Insured  or  Beneficiary  (without  Copy 
of  Policy).    And  the  plaintiff  says  that  by  a  policy  dated  the  day  of 

19  made  by  the  defendant,  in  consideration  of  the  statements 
and  agreements  contained  in  the  application  therefor,  which  was  made  part  of 
the  said  policy,  and  the  annual  premium  of  $  then  paid  by  the 

plaintiff  (or  by  A  B)  to  the  defendant  and  the  like  annual  premium  so  to  be 
paid  on  the  day  of  in  every  year  thereafter  during  the 

continuance  of  the  said  policy,  the  defendant  promised  to  pay  the  sum  of 
$  to  the  plaintiff  (or  the  said  A  B  the  insured  thereunder),  if  he 

should  be  livuig  at  the  end  of  ten  years  from  the  date  thereof,  or,  in  case  of  his 


2496  PLE.\DING   .^'D    PRACTICE.  [Ch.\P.   231. 

pre\'ious  death,  upon  receipt  at  the  ofBce  of  the  defendant  at 
of  satisfactory  proofs  of  his  death,  then  to  (the  plaintiff)  C  D,  his  Tvife,  the  bene- 
ficiary thereunder,  if  she  should  then  be  living,  or  otherwise  to  the  executors, 
administrators,  or  assigns  of  the  insured.  (And  it  was  thereby  declared  that 
the  said  policy  should  be  incontestable  after  one  year  from  its  date  of  issue 
except  for  non-pajonent  of  premium,  and  that,  after  paj-ment  of  the  first  annual 
premium  thereon,  payment  of  any  subsequent  premium  might  be  made  within 
thirty-one  days  after  the  same  should  have  become  due,  the  policy  meanwhile 
continuing  in  force,  but  in  the  event  of  the  death  of  the  insured  during  the  said 
thirty-one  days,  the  premium,  if  unpaid,  should  be  deducted  from  the  sum 
payable  on  account  of  the  pohcy,  and  that,  if  the  age  of  the  insured  had  been 
misstated,  the  amount  payable  under  the  policy  should  be  such  as  the  premium 
would  have  purchased  at  the  correct  age,  and  that  the  pohcy  and  the  apph- 
cation  therefor  should  constitute  the  entire  contract  between  the  parties,  and 
all  statements  made  by  the  insured  should  in  the  absence  of  fraud  be  deemed 
representations  and  not  warranties,  and  no  such  statement  should  avoid  the 
pohcy  or  be  a  defence  to  a  claim  thereunder  unless  contained  in  the  said  apph- 
cation.)  And  the  plaintiff  {or  the  said  A  B)  duly  paid  the  said  annual  premiums 
to  the  defendant  in  every  year  during  the  continuance  of  the  said  pohcy,  and 
the  said  period  of  ten  years  elapsed,  and  the  sum  of  S  mentioned 

in  the  said  policy  thereupon  became  due  and  payable  by  the  defendant  to  the 
plaintiff  by  virtue  thereof  {or  while  the  said  policy  was  in  force  and  before  the 
end  of  the  said  ten  years  the  said  A  B  died,  and  satisfactory  proof  of  his  death 
was  produced  to  the  defendant  at  its  said  office,  and  the  sum  of  S 
mentioned  in  the  said  pohcy  thereupon  became  due  and  payable  by  the  de- 
fendant to  the  plaintiff  by  virtue  thereof)  and  no  part  of  the  same  has  been  paid 
to  the  plaintiff.    And  the  defendant  owes  the  plaintiff  the  sum  of  $ 

Instruction:  This  form  is  subject  to  the  instruction  at  the  end  of  the  pre- 
ceding form. 

Declaeations  in  Actions  of  Tort. 

fi  All"*'  4in'  Instnidion  as  to  all  such  declarations:   The  ad  damnum  is  a  sufficient  allega- 

200  Mass.  232.  tiou  of  damage  in  all  cases  in  which  special  damages  are  not  claimed.  The 
223  Mass.  56S.   latter,  if  claimed,  should  be  alleged. 

11.      CON\'ERSION. 

And  the  plaintiff  says  that  the  defendant  converted  to  his  own  use  one  horse 
{or  the  goods  mentioned  in  the  particulars  hereto  annexed)  the  property  of 
the  plaintiff. 

Note.  —  Both  the  form  and  the  fiction  of  trover  were  abolished  by  ISol,  233,  §  1,  and 
conversion,  which  was  the  substance,  is  the  only  thing  left. 

12.      DECEIT. 

1  •^jj'^"'  ll^j"-  {a)  And  the  plaintiff  says  that  the  defendant,  by  fraudulently  representing 

114  m"'ss.  99.  to  the  plaintiff  that  ten  bags  of  coffee  were  the  property  of  the  defendant,  in- 
ijj-J'ass. 405.  (luced  the  plaintiff  to  buy  the  same  of  him,  for  which  the  plaintiff  paid  to  the 
151  Mass!  54?!  defendant  the  sum  of  one  hundred  dollars,  whereas  the  said  coffee  was  not  the 
jmjass.  445.  property  of  the  defendant,  as  the  defendant  then  knew,  but  was  the  property 
162  Mass!  26o!    of  A  S,  who  has  since  taken  the  same  from  the  plaintiff. 

169  Mass.  576.  (5)  ^j  ^hc  plaintiff  says  that  the  defendant  induced  the  plaintiff  to  buy  a 
certain  horse  from  him  and  to  pay  him  three  hundred  dollars  therefor  by  fraudu- 
lently representing  to  the  plaintiff  that  the  said  horse  was  sound,  so  far  as  the 
defendant  knew,  whereas  the  said  horse  was  not  sound,  but  had  a  certain  disease 
called  ,  as  the  defendant  then  knew. 

(c)  And  the  plaintiff  says  that  the  defendant,  by  fraudulently  representing 
to  the  plaintiff  (in  writing)  that  S  C  was  a  man  possessed  of  a  large  property 
and  able  to  pay  his  debts,  (a  copy  of  which  ^^Titing  is  hereto  annexed,)  induced 
the  plaintiff  to  sell  and  deliver  to  the  said  S  C  on  credit  the  goods  mentioned 
in  the  particulars  hereto  annexed,  whereas  the  said  S  C  was  not  a  man  of 
property,  nor  able  to  pay  his  debts,  but  was  insolvent,  as  the  defendant  then 
knew,  whereby  the  plaintiff  lost  the  price  of  the  said  goods,  and  was  unable  to 
obtain  pajmient  therefor. 


Chap.  231.]  pleading  and  practice.  2497 


13.      NEGLIGENCE  IN  DRIVING  A  MOTOR  VEHICLE. 

And  the  plaintiff  says  that  the  defendant  so  negligently  and  unskilfully 
drove  a  motor  vehicle  in  a  public  highway,  called  street,  in  Boston, 

that  by  reason  thereof  the  said  motor  vehicle  struck  the  plaintiff  who  was  then 
properly  crossing  the  said  highway  (or  a  carriage  of  the  plamtiff  in  which  he 
was  then  properly  passing  along  the  said  highway)  whereby  the  plaintiff  w-as 
thrown  down  and  had  his  leg  broken  and  was  otherwise  much  injured  (or  the 
said  carriage  was  broken  and  damaged  and  the  plaintiff  was  hurt,  etc.)  and  w-as 
prevented  from  transacting  his  business,  and  suffered  great  pain  both  of  body 
and  mind,  and  incurred  expense  for  medicine,  medical  attendance  and  nursing, 
(and  in  repairing  the  said  carriage,  and  was  deprived  of  the  use  thereof  for  a 
long  time  and  was  thereby  delayed  and  injured  in  his  business). 

14.      NEGLIGENCE   OF  RAILROAD   CORPORATION  TOWARD  PASSENGER. 

And  the  plaintiff  says  that  he  was  a  passenger  traveling  in  a  car  managed 
by  the  defendant  upon  the  defendant's  railroad  between  A  and  B,  and,  by 
reason  of  the  negligence  of  the  defendant  in  using  an  insufficient  axle  in  the 
said  car,  the  said  axle  broke  and  the  plaintiff  w^as  thereby  hurt.  (Add  allegation 
of  special  damages,  as  inform  IS.) 

Note.  —  This  form  may  be  varied  to  adapt  it  to  many  cases  by  changing  the  allegation 
as  to  the  cau.-e  of  the  accident.  It  is  not  intended  to  restrict  a  party  to  the  statement 
of  one  cause  if  there  were  several  concurrent  cau.se.s,  and  if  the  plaintiff  is  in  doubt  which 
of  several  different  causes  occasioned  the  accident  he  may  so  declare. 

15.      WANT  OF  REPAIR  OF  HIGHWAY. 

And  the  plaintiff  says  that  there  was  in  the  town  of  a  public  lO  Alien,  is. 

highway  leading  from  to  which  the  defendants  were  ^"^"^  '^'"^^  ^''* 

bound  to  keep  in  repair,  and  by  reason  of  the  want  of  repair  thereof  {or  a  defect 
therein  consisting  of,  etc.),  which  the  defendants  negligently  suffered,  the  plain- 
tiff traveling  thereon  (fell  and)  was  hurt  [or  a  vehicle  in  which  the  plaintiff 
was  traveling  thereon  was  overturned  (or  if  the  accident  ivas  not  the  overturning 
of  the  vehicle,  state  u'hat  took  place)  and  the  plaintiff  w'as  hurt  {insert  allegation 
of  special  damages)  (and  the  said  vehicle  belonging  to  the  plaintiff  was  damaged)], 
{insert  allegation  of  special  damages  relating  to  carriage,  if  any).  And  due  notice 
of  the  time,  place  and  cause  of  the  said  damage  was  given  to  the  defendants. 

Note.  —  The  words  "which  the  defendants  nesligently  suffered"  are  necessarj-,  because 
the  town  is  liable  for  the  damage  caused  by  the  want  of  repair,  under  Chap.  S4,  §  15,  if  it 
negligently  suffered  the  want  of  repair.  A  general  allegation  of  the  notice  required  by 
Chap.  84,  §  18,  seems  necessary. 

16.      OBSTRUCTING  WAY. 

And  the  plaintiff  says  that  he  owned  a  piece  of  land  (describing  it),  and  had 
a  way  from  the  same  over  a  certain  close  to  (here  mention  the  other  ter7niitus) 
and  thence  back  again,  for  himself  and  his  servants  on  foot  and  with  horses, 
cattle  and  vehicles,  and  the  defendant  wrongfully  obstructed  the  said  way. 

Note.  —  Cf.  2  Chitty  PI.  (13th  Am.  ed.)  807;   Bullen  &  Leake  PI.  (1st  ed.)  251. 
17.      IMMODERATE   DRIVING. 

And  the  plaintiff  says  that  the  defendant  hired  of  him  a  horse  and  carriage 
to  drive  from  Boston  to  Cambridge,  and  thence  back  to  Boston,  and  the  de- 
fendant drove  the  said  horse  so  negligently  and  unreasonably  that  the  said 
horse  became  sick  and  lame  and  was  greatly  damaged. 

Note.  —  Cf.  Bullen  &  Leake  PI.  (1st  ed.)  09;   Mooers  71.  Larry,  15  Gray,  451. 

18.      SLANDER  I.MPUTING   PERJURY. 

And  the  plaintiff  says  that  the  defendant  falsely  and  maliciously  spoke  and  '-  ^'^^^^  *^^- 
published  of  the  plaintiff  the  words  following:    "You  swore  false  at  the  trial 
of  your  brother  John",  the  defendant  meaning  thereby  that  the  plaintiff  was 
guilty  of  perjury  in  testifying  as  a  witness  at  the  trial  of  his  brother  J  F  upon 
a  criminal  proceeding  against  him  in  the  District  Court  of  fcir  an 

assault  and  battery. 


2498 


PLEADING    AXD    PRACTICE. 


[Chap.  231. 


5  Gray.  22. 

6  Graj-.  321, 
495. 

8  Gray,  161. 

9  Gray.  2Si. 

10  Grav,  2.50. 
14  Gray,  221. 
3  Allen,  69. 
97  Mass.  1. 

100  Mass.  194. 

101  Mass.  115. 

102  Mass.  139. 


16  Pick.  132. 
98  Mass.  224. 
169  Mass.  512. 
208  Mass.  600. 


Instruction:  In  action.s  of  libel  and  slander,  it  is  sufficient  to  allege  that  the 
words  or  matter  complained  of  were  used  in  a  defamatorj'  sense,  specif\-ing 
such  defamatory  sense,  without  a  further  statement  of  facts  to  show  that  they 
were  used  in  that  sense,  and  such  allegation  shall  be  put  in  issue  by  a  denial  of 
the  alleged  libel  or  slander.  If,  however,  the  natural  import  of  the  words  is  not 
intelligible  without  further  explanation,  or  reference  to  facts  understood  but 
not  mentioned,  or  parts  of  the  conversation  not  stated,  a  concise  and  clear  state- 
ment of  such  particulars  as  are  necessary  to  make  the  words  rehed  on  intel- 
ligible to  the  court  and  jury  in  the  same  sense  in  which  they  were  spoken  may 
be  required  upon  motion  of  the  defendant. 

Note.  —  The  foregoing  instruction  changes  the  nile  followed  in  Brettim  v.  Anthony, 
10.3  Mass.  37,  requiring  all  the  circumstances,  necessary  at  common  law  to  make  the 
words  spoken  slanderous  or  libellous,  to  be  set  out  in  the  inducement  or  prefatory  statement, 
followed  by  a  colloquium  or  allegation  that  the  words  were  used  of  and  concerning  those 
circumstances,  and  permits  the  simpler  form  authorized  by  the  English  Common  Law 
Procedure  Act,  1852,  §  61.  See  Chace  v.  Sherman,  119  Mass.  387.  It  is,  however,  often 
desirable  to  draw  a  cleclaration  containing  an  introduction  or  colloquium,  and  this  may  be 
required  on  an  application  for  particulars. 

19.      SL-iNDER  INDIBECTLT  CHANGING  A   CRIMINAL  OFFENCE. 

And  the  plaintiff  says  that  the  defendant  falsely  and  maliciously  spoke  and 
published  of  the  plaintiff  the  words  following:  "Some  of  the  folks  up  your  way 
think  that  Henry  burned  the  store.  I  have  no  doubt  but  what  he  burned  it", 
the  defendant  meaning  thereby  that  the  plaintiff  burned  a  building  and  goods 
and  chattels  therein  belonging  to  him  Tvith  intent  to  injure  certain  insurance 
companies  by  whom  the  same  were  insured  at  the  time  against  loss  or  damage 
by  fire. 


112  Mass.  237. 
116  Mass.  482. 
119  Mass.  387. 


124  Mass.  338. 
127  Mass.  4S7. 
131  Mass.  433. 


137  Mass.  136. 
144  Mass.  38. 
151  Mass.  567. 


153  Mass.  1. 
164  Mass.  13. 


Note.  ■ —  This  form  is  based  on  the  facts  in  Brettun  v.  .\nthony,  103  Mass.  37. 

20.      LIBEL. 

And  the  jjlaintiff  says  that  the  defendant  falsely  and  maliciously  printed 
and  published  {or  WTote  and  published)  of  the  plaintiff  in  a  newspaper  called 
•  the  words  following:  "He  is  a  regular  prover  in  bankruptcies",  the 
defendant  meaning  thereby  that  the  plaintiff  had  proved  and  was  in  the  habit 
of  pro\'ing  fictitious  debts  against  the  estates  of  bankrupts,  ■\\ith  the  knowledge 
that  such  debts  were  fictitious;  [{or,  if  it  is  a  picture,  describe  it,  e.g.)  falsely  and 
maliciously  composed  and  pubhshed  of  the  plaintiff  and  a  court-martial  of  which 
he  was  a  member  a  lithograph  picture  and  caricature  of  the  said  court-martial 
in  which  the  plaintiff  is  represented  in  an  awkward,  ludicrous  and  contemptible 
hght  and  posture  and  as  saying  of  A  B  the  respondent  then  on  trial  upon  certain 
charges  before  the  said  court-martial  the  words  following:  {here  set  out  the  ^rord.s) 
the  defendant  thereby  meaning  to  impute  to  the  plaintiff  low,  vulgar  and  con- 
temptible language,  views  and  motives.];  [{or,  if  it  is  a  letter) 
falsely  and  niaUciously  -WTote  and  pubhshed  of  the  plaintiff  in  a  letter  addressed 
to  W  D,  by  whom  the  plaintiff  was  then  employed  as  bookkeeper,  the  words  fol- 
lowing: "There  is  a  duphcity  about  j-our  bookkeeper  in  ser\'ing  your  interest 
in  this  affair  of  ours  which  is  sadly  too  transparent.  I  conceive  there  is  nothing 
too  base  for  him  to  be  giiUty  of."] 

Note.  —  The  first  of  these  forms  for  actions  of  Ubel  is  taken  from  BuUen  &  Leake 
PI.  (1st  ed.)  179,  180:  the  second  from  ElUs  v.  Kimball,  16  Pick.  132;  and  the  third  from 
Tighe  T.  Cooper,  7  Ellis  &  Bl.  639. 

21.      TKESP.\SS  TO   PERSON. 

And  the  plaintiff  says  that  the  defendant  assaulted  and  beat  the  plaintiff 
(and  imprisoned  him  and  kept  him  in  prison  for  a  long  time). 

NoU.  —  Cf.  Bullen  &  Leake,  240,  241. 


9  Gray,  73. 
103  Mass.  360. 
115  Mass.  661. 
125  Mass.  532. 
152  Mass.  532. 
157  Mass.  474. 


22.      TRESP.^S  TO   L^ND. 

And  the  plaintiff  says  that  the  defendant  broke  and  entered  the  plaintiff's 
close  {describing  it)  and  ploughed  up  the  soil  thereof  and  took  and  carried  away 
fifty  bushels  of  the  plaintiff's  corn  therefrom,  and  converted  the  same  to  his 
own  use. 


Chap.  231.]  pleading  .and  practice.  2499 

Nole.  —  See  also  Bullen  &  Leake  PI.  (1st  ed.)  245.  The  form  in  1851,  233  (P.  S.  p. 
979),  used  the  word  "forcibly"  as  the  older  forms  used  "with  force  and  arms"  (2  Chitty 
Pi.  869),  but  no  real  force  is  necessary,  and  "every  entry  therefore  therein  without  the 
owner's  leave  .  .  .  is  a  trespass".  3  Bl.  Com.  20S.  As  the  statute  dispenses  with  all  aver- 
ments which  the  law  does  not  require  to  be  proved  (§  7  of  this  chapter),  the  form  ought 
not  to  require  an  allegation  of  force. 

23.      PENALTY.      TREBLE   DAMAGES  FOE  INJXJRT  TO   AQUEDUCT. 

And  the  plaintiffs  say  that  they  had  an  aqueduct  {describing  it),  and  the  de-  2  Alien,  320. 
fendant  maUciously  injured  the  same  by  cutting  off  one  of  the  pipes  thereof, 
whereby  the  defendant  became  liable  to  pay  the  plaintiffs  treble  the  amount 
of  the  damage  thereby  sustained  by  the  plaintiffs,  and  the  amount  of  such 
damage  was  ten  dollars. 

Note.  —  See  Chap.  165,  §  24. 

Mixed  Action. 

24.    ejectment  tjndee  section  nine. 

And  the  plaintiff  says  that  the  defendant  is  wrongfully  in  possession  of  a  1915, 146,  §  1. 
piece  of  land  situate,  etc.,  {description)  to  which  the  ^^^ ■'^'^- *^°- 

plaintiff  is  entitled  by  virtue  of  a  lease  for  a  term  not  yet  expired. 

Particulars  of  Title. 

The  premises  were  leased  by  A  B  to  the  plaintiff  (or  to  X  Y)  by  an 

indenture  dated   the                                 day  of  19         for  a  term  of  twenty 

years  from  the                                 day  of                         19  (and  were  afterwards  assigned 

by  the  said  X  Y  to  the  plaintiff  by  an  indenture  dated  the  day  of 
19         for  the  unexpired  residue  of  the  said  term). 

Note.  —  This  is  the  common  law  action  of  ejectment,  not  the  action  of  summary  process 
in  which  no  declaration  is  required. 

Answtees  in  Abatement. 

25.    non-joindee. 

The  defendant  says  that,  if  he  is  indebted  to  the  plaintiffs  for  the  goods  men- 
tioned in  the  declaration,  he  is  indebted  to  them  jointly  with  G  H,  who  is  stOl 
aUve,  and  not  alone,  and  therefore  he  ought  not  to  be  held  to  answer  to  the 
plaintiffs'  writ. 

Note.  —  There  is  no  use  in  saying  that  "the  defendant  comes",  for  "comes"  is  only  the 
old  way  of  entering  on  the  record  the  statement  of  his  appearance.  3  Chitty  PI.  (13th  Am. 
ed.)  892,  900;  eee  2  Saund.  30,  108a.    Cf.  Bullen  &  Leake  PI.  (let  ed.)  253. 

26.      MISNOMEE. 

The  defendant  says  that  the  plaintiff's  name  is  John  Stiles,  and  not  James 
Stiles,  and  therefore  he  ought  not  to  be  held  to  answer  to  the  plaintiff's  writ. 

Answers  in  Actions  of  Contract. 
27.     money  had  and  received,  or  promissory  note,  oe  othee  cause  of 

ACTION. 

The  defendant  denies  all  the  allegations  in  the  plaintiff's  declaration  [and 
denies  the  genuineness  of  the  supposed  signature  of  the  defendant  {or  the  said 
C  D)  to  the  promissory  note  therein  declared  on]  [and  denies  that  the  plaintiff 
(or  the  defendant)  ever  was  or  is  executor  as  alleged]  (and  denies  that  there  was 
,  at  the  commencement  of  this  action  or  is  any  such  corporation  as  the  supposed 
plaintiff). 

Note.  —  An  "answer  denying  all  the  allegations  in  the  declaration"  (Mosler  v.  Potter, 
121  Mass.  89  at  p.  90)  has  long  been  in  general  use,  and  no  one  would  use  the  old  forms  given 
in  P.  S.  at  p.  980.  The  bill  of  particulars  is  part  of  the  declaration  (§  14  of  this  chapter), 
and  so  does  not  require  special  mention  in  the  answer. 

As  to  denial  of  genuineness  of  signature,  see  §  29.    Spooner  v.  Gilmore,  136  Mass.  248. 

As  to  denial  of  representative  capacity  or  corporate  existence,  see  §  30. 

As  to  executor,  etc.,  cf.  Bullen  &  Leake  PI.  (1st  ed.)  335;  Story  PI.  (2d  ed.)  192. 
As  to  corporation,  cf.  Story  PI.  91;  Christian  Society  «.  Macomber,  3  Met.  235;  Whitou 
V.  Balch,  203  Mass.  576. 


2500  PLEADING   AND   PR.4.CTICE.  [Ch.U'.  231. 


28.      STATUTE   OF  LIMITATIONS. 

The  defendant  says  that  the  cause  of  action  mentioned  in  the  declaration 
did  not  accrue  within  six  years  before  the  commencement  of  this  action. 

29.      PAYMENT. 

The  defendant  says  that  he  paid  the  plaintiff  the  sum  of  dollars, 

which  was  the  full  amount  of  the  account  stated  in  the  plaintiff's  biU  of 
particulars. 

(//  there  are  several  items,  add  and  he  annexes  hereto  a  bill  of  particulars  of 
the  said  pa3Tnent). 

30.      ACCOUNT  ANNEXED.      GOODS  SOLD   AND  DELIVERED.      WORK. 

The  defendant,  as  to  the  first  ten  items  of  the  plaintiff's  bill  of  particulars, 
denies  that  the  plaintiff  sold  and  delivered  any  of  the  same  to  the  defendant. 
And  as  to  the  eleventh  item,  he  denies  that  the  price  was  to  be  more  than  ten 
dollars,  which  sum  he  has  paid. 

31.      PROMISSORY  NOTE.      ALTERNATIVE  DEFENCES. 

The  defendant  denies  that  he  made  the  said  promissory  note  as  alleged  in  the 
declaration  and  denies  the  genuineness  of  his  supposed  signature  thereto.  And, 
if  he  made  the  said  note,  the  same  was  paid. 

Note.  —  See  Swett  v.  Southworth,  125  Mass.  417;  Jewett  v.  Locke,  6  Gray,  233. 
See  also  §  37. 

32.     MINORITY. 

As  to  the  note  mentioned  in  the  plaintiff's  second  count,  the  defendant 
says  that  at  the  time  of  making  the  same  he  was  a  minor  under  the  age  of 
twenty-one. 

33.      DURESS. 

As  to  the  contract  mentioned  in  the  plaintiff's  third  count,  the  defendant 
says  that  he  was  induced  to  make  the  same  by  the  plaintiff's  unlawfully  keeping 
him  in  prison  imtU  he  made  the  same. 

Note.  —  Cf.  Bulleu  &  Leake  PI.  (1st  ed.)  329. 

34.      PART  PAYMENT.      TENDER. 

The  defendant  says  that  he  paid  the  note  mentioned  in  the  declaration,  ex- 
cept the  smn  of  fifty  dollars,  and,  before  the  commencement  of  this  action,  he 
tendered  to  the  plaintiff  the  said  sum  of  fifty  dollars  and  now  brings  the  same 
into  court  for  the  plaintiff. 

35.      ACCORD  AND   SATISFACTION. 

The  defendant  says  that  he  delivered  to  the  plaintiff,  and  the  plaintiff  ac- 
cepted, a  wagon,  in  fuU  satisfaction  of  the  note  mentioned  in  the  declaration. 

36.      RES  JUDICATA. 

The  defendant  says  that  in  the  superior  court  held  (etc.)   the   plaintiff  re- 
covered judgment  against  the  defendant  for  dollars  and 
cents  damages,  and                            dollars  and  cents  costs,  for  the 
cause  of  action  mentioned  in  the  ]ilaintiff's  fu-st  count. 

37.      RELEASE. 

The  defendant  says  that  the  plaintiff  by  deed  (a  copy  whereof  is  hereto  an- 
nexed) released  him  from  the  cause  of  action  mentioned  in  the  second  count. 


Chap.  231.]  pleading  and  practice.  2501 


38.      INSURANCE. 

(a)  The  defendants  deny  that  the  said  loss  was  actually  total,  and  deny  that 
any  abandonment  was  made. 

(b)  The  defendants  say  that  the  said  vessel  was  not  seaworthy  for  the  voyage 
in  the  said  policy  mentioned  at  the  inception  of  the  said  voyage. 

(c)  The  defendants  deny  that  the  said  vessel  was  lost  while  proceeding  on  the 
voyage  in  the  said  policy  described. 

39.      EQUITABLE   DEFENCE. 

Action  for  not  Jonmrding  goods  by  a  specified  steamer  according  to  a  written 
agreement  and  sending  them  by  another  steamer,  alleged  to  be  unseaworthy,  which 
was  lost. 

The  defendant  says  that  the  plaintiff  delivered  the  goods  mentioned  in  the 
declaration  to  the  defendant  to  be  forwarded  by  the  defendant  to  L  C  B  at 
Havre  in  France  by  the  first  steamer  sailing  from  New  York  for  Ha\Te,  and 
without  any  other  directions  from  the  plaintiff  as  to  the  steamer  by  which  they 
should  be  sent,  and  the  defendant  agreed  with  the  plaintiff  to  forward  them 
accordingly.  And  by  mistake  of  the  defendant's  agent  the  name  of  the  steamer 
J  S  was  written  in  the  bill  of  lading  and  agreement  mentioned  in  the  declaration 
in  the  supposition  that  the  said  steamer  J  S  was  the  first  steamer  sailing  from 
New  York  for  Havre  after  the  delivery  of  the  goods  as  aforesaid,  whereas  in 
fact  that  steamer  was  not  the  first  steamer  so  sailing  and  was  not  then  about  to 
sail  and  did  not  sail  from  New  York  for  Hnvre.  And  the  defendant  in  accord- 
ance with  the  real  agreement  made  between  the  plaintiff  and  the  defendant 
as  aforesaid  forwarded  the  said  goods  by  the  steamer  P,  which  was  the  first 
steamer  so  sailing  and  which  sailed  soon  afterwards  on  the  said  voyage  and  was 
seaworthy  at  the  conmiencement  thereof. 

Note.  —  See  Fowie  v.  Pitt  &  Scott,  183  Mass.  351 ;  see  also  Steele  i>.  Haddock,  10  Ex. 
643;   BuUen  &  Leake   PI.  (1st  ed.)  331. 

Answers  in  Actions  of  Tort. 
40.    conyeesion. 

(a)  The  defendant  denies  that  the  horse  mentioned  in  the  declaration  was 
the  property  of  the  plaintiff,  and  also  denies  that  he  converted  the  same  to  his 
own  use. 

(6)  The  defendant  admits  that  the  said  horse  was  the  general  property  of  the 
plaintiff,  but  says  that  the  defendant  had  a  special  property  therein  by  reason 
of  his  having  attached  the  same  as  the  plaintiff's  property  by  virtue  of  a  WTit 
(describing  il),  which  writ  was  delivered  to  the  defendant,  who  then  was  a 
deputy  sheriff  in  the  county  of  ,  for  service,  and  the  said  action  is 

now  pending.  And  so  the  defendant  denies  that  he  converted  the  said  horse 
to  his  own  use. 

41.      DECEIT. 

(a)  The  defendant  denies  that  he  made  the  said  representation  knowing 
that  the  same  was  not  true. 

(6)  The  defendant  denies  that  the  said  horse  was  unsound,  as  alleged  in  the 
declaration. 

(e)  The  defendant  denies  that  he  made  the  representation  alleged  in  the 
declaration.  And  the  defendant  also  says  that  the  said  coffee  was  the  de- 
fendant's property,  and  that  he  had  a  right  to  sell  the  same. 

42.      OBSTRUCTING  WAT. 

{a)  The  defendant  denies  that  the  plaintiff  had  a  right  of  way  as  set  out  in 
the  declaration. 

(6)  The  defendant  denies  that  he  obstructed  the  said  way  as  alleged  in  the 
declaration. 


2502  PLEADING   AND   PRACTICE.  [ChAP.   231. 


43.      SLANDEB  OR  LIBEL. 

6  Aii*'n'4ori  '^^^®  defendant  denies  that  he  accused  the  plaintiff  of  the  crime  of  perjury  as 

7  Allen]  61. '       alleged  in  the  first  count. 

And  answering  the  second  count,  tlie  defendant  says  that  (the  plaintiff  feloni- 
ously stole  ten  dollars  the  jiroperty  of  S  T  and  so)  the  words  alleged  to  have  been 
written  {or  spoken)  and  published  of  the  plaintiff  by  the  defendant  were  true. 

Note.  —  The  clause  in  parentheses  at  the  beginning  of  the  answer  to  the  second  count 
might  be  omitted.     McLaughlin  v.  Cowley,  127  Mass.  316. 

44.      ASSAULT  AND  BATTERY. 

(o)  The  defendant  says  that  the  plaintiff  first  assaulted  him,  and  he  there- 
upon necessarily  committed  the  alleged  assault  in  his  own  defence. 

(h)  The  defendant  says  that  the  plaintiff  was  his  apprentice  and  deserted 
and  ran  away  from  his  service,  and  the  defendant  la\\'fuUy  retook  and  restrained 
the  plaintiff,  using  no  more  force  than  was  necessary. 

45.      TRESPASS   QUAEE   CLAXJStJM. 

The  defendant  says  that  a  part  of  the  close  mentioned  in  the  plaintiff's  writ 
was  the  soil  and  freehold  of  the  defendant,  the  same  being  described  as  follows, 
etc.  And  he  denies  that  he  broke  or  entered  any  part  of  said  close,  except  the 
part  above  described. 

Replications. 
46.    limitations. 

(o)  The  plaintiff  says  that  within  six  years  before  the  commencement  of 
this  action  the  defendant  in  a  writing  signed  by  him  (or  his  agent  A  B),  a  copy 
whereof  is  hereto  annexed  {or  by  part  payment  on  account  of  the  moneys  then 
due)  acknowledged  that  the  debt  mentioned  in  the  declaration  remained  due 
and  unpaid. 

(6)  The  plaintiff  says  that  during  the  six  years  next  before  the  commencement 
of  this  action  the  defendant  resided  out  of  this  commonwealth  for  three  years. 

Note.  —  The  form  in  P.  S.,  p.  981,  is  changed  because  the  statute  then  in  force,  P.  S.  197, 
§  11,  was  changed  by  R.L.  202,  §9.    See  Chap.  260,  §  9. 

47.      MINORITY. 

The  plaintiff  says  that  the  articles  mentioned  in  his  bill  of  particulars  were 
necessaries  for  the  defendant  and  suitable  to  his  estate  and  degree. 

REFERENCES. 

§  40.  See  Chap.  35,  §  23,  relative  to  disposition  of  money  paid  into  court  under 
this  section  in  Suffolk  county. 

§  59.  Advancing  for  speedy  trial  in  case  of  petition  for  damages  for  taking  by  emi- 
nent domain.  Chap.  79,  §  34. 

§  00.    Claim  of  jury  trial  in  land  court.  Chap.  ISii,  §  15. 

§§61-67.  Interrogatories  in  probate  courts,  Chap.  215,  §  43.  Same  in  eminent 
domain  and  betterment  cases,  Chap.  79,  §  22,  and  Chap.  80,  §  9.  Same  in  the  land 
court.  Chap.  185,  §  25. 

§  96.    Appeal  in  equity,  Chap.  214,  §  19.    Appeal  in  land  court.  Chap.  185,  §  15. 

Appeals  in  certain  land  registration  cases.  Chap.  185,  §  16. 

§  97.    Appeals  in  cases  of  neglected  and  delinquent  children.  Chap.  119,  §§  47,  56. 

§  111.    Report  in  land  court.  Chap.  185,  §  15. 

Report  in  equity,  Chap.  214,  §§  30,  31. 

§§  96,  116  and  122-126.  Power  of  full  court  in  cases  of  frivolous  appeal  or  excep- 
tions, and  in  cases  of  failure  to  enter  same,  Chap.  211,  §§  10,  11. 

§  133.    Payment  for  copies  to  be  transmitted  on  appeal,  etc..  Chap.  212,  §  11. 

§  134.    Waiver  of  probate  appeal,  Chap.  215,  §  29. 


Ch-\p.  232.] 


SET-OFF   .\ND   TENDER. 


2503 


CHAPTER    232, 

SET-OFF  AND   TENDER. 


Sect. 

SET-OFF. 

1.  Set-off,  when  allowed. 

2.  Set-off  of  bonds,  etc. 

3.  Several  plaintiffs  or  defendants. 

4.  Assignment  of  claim. 

5.  Actions  by  trustee. 

6.  Actions    by    or    against    executors    or 

administrators. 

7.  Form  of  judgment  against  executor,  etc. 


Sect. 

8.  Declaration  in  set-off. 

9.  Filing  of  declaration. 

10.  Limitations  in  bar. 

11.  Judgment. 

TENDER. 

12.  Payment  or  tender. 

13.  Acceptance  of  tender. 

14.  Tender  in  lien  cases. 


SET-OFF. 

1  Section  1.     If  at  the  commencement  of  an  action  upon  a  judgment  fif^,':^,^"''*" 

2  or  upon  a  contract,  express  or  implied,  for  property  sold,  for  money  HoSli'I^^' 

3  paid,  for  money  had  and  received,  for  services  performed  and  for  an  nsJ-.'iUr' 

4  amount  which  is  liquidated  or  may  be  ascertained  by  calculation,  the  1784.28,  §'12.' 

5  defendant  has  in  his  own  right  a  claim  against  the  plaintiff  such  as  is  R.'l.'gl;  ^  *' 

6  hereinbefore  mentioned  or  such  a  claim  which  has  been  assigned  to 


'  1-5, 7 

G.  S.  130, 

7  him  with  notice  thereof  to  the  plaintiff,  it  may  be  set  off  against  the  fj^l'igg- 

R.  L.  174,  §  1.  17  Mass.  66.  5§  1-5,  7. 


8  plaintiff's  claim  as  hereinafter  provided. 


5  Pick.  223,  312. 

3  Met.  620. 

4  Met.  430. 

6  Met.  7. 

9  Met.  39,  341,  367. 

11  Met.  129. 

12  Met.  567. 

13  Met.  132. 
3  Gray,  502. 


3  Allen,  111. 
5  Allen,  36. 
9  Allen,  192. 
97  Mass.  502. 
103  Mass.  556. 
114  Mass.  24. 
119  Mass.  397. 

122  Mass.  5,53. 

123  Mass.  598. 


124  Mass.  470. 
127  Mass.  394. 

129  Mass.  234. 

130  Mass.  352,  424. 

131  Mass.  277. 
137  Mass.  ISl. 

151  Mass.  204. 

152  Mass.  108,  260. 

153  Mass.  544. 


176  Mass.  46. 
180  Mass.  194. 
192  Mass.  511. 
201  Mass.  123. 
208  Mass.  593. 
212  Mtiss.  459. 
215  Mass.  403. 
233  Mass.  32. 
Op.  A.  G.  (1920)  265. 


1  Section  2.     If  the  claim  which  is  set  off  is  founded  on  a  bond  or  set-oSof 

2  other  contract  having  a  penalty,  no  more  shall  be  set  off  than  the  amount  r°  s.  96,  §  6. 

3  equitably  due.         G.  s.  130,  §  6.        p.  s.  i68,  §  6.        r.  l.  174,  §  2.        4  Met.  430. 


1  Section  3.     If  there  are  several  plaintiffs  or  defendants,  the  claim  several  piain- 

2  set  off  shall  be  due  from  all  of  the  plaintiffs  jointly  and  to  all  of  the  defendants. 

3  defendants  jointly,  except  that  in  an  action  by  or  against  partners,  one  giI'iso!^*'^ 

4  of  whom  is  a  dormant  partner,  a  claim  due  to  or  from  the  person  with  |>^|]''gg 

5  whom  the  contract  was  made  may  be  set  off  as  though  such  dormant  i'  i- 174  |  i 

,  •'.  °  11  Mass.  140. 

0  partner  were  not  a  party  to  the  action. 

1  Met.  SO.  5  Allen,  371.  168  Mass,  537.  172  Mass.  516. 


8,9. 


1  Section  4.     If  at  the  commencement  of  an  action   the  defendant  Assignment 

2  has  notice  that  the  claim  declared  on  has  been  assigned,  he  shall  not  set  r.  s.  9f.,'  §  lo. 

3  off  a  claim  against  the  original  creditor  which  was  acquired  after  such  p.'s.'ies.'s  lo. 

4  notice.  R.  L.  174,  §  4.  12  Mass.  193. 

14  Mass.  291.  15  Gray,  541.  129  Mass.  234.  151  Mass.  338. 


1  Section  5.     In  an  action  brought  by  one  person  in  trust  or  for  the  Actions  by 

2  use  or  benefit  of  another,  the  defendant  may  set  off  a  claim  against  the  R"s'!*9fl,  §  n. 

3  beneficiary. 


G.S.  130,  §  11. 
P.  S.  168,  §  11. 


R.  L.  174,  §  5. 
7  Cush.  217. 


125  Mass.  571, 
135  Mass.  £58, 


192  Mass.  511. 
216  Mass.  296. 


2504 


SET-OFF  AND  TENDER. 


[Chap.  232. 


Section  6.  In  an  action  by  or  against  an  executor,  administrator 
or  other  person  in  a  representative  capacity,  the  defendant  may  set  off 
a  claim  due  to  or  from  the  testator,  intestate  or  person  represented, 
respectively;   but  he  shall  not  set  off  a  claim  due  in  his  own  right  to  or 


ActionB  by 

or  against 

executors  or 

administrators. 

R.  a-96.  §1  12. 

14,  15. 

G.S.  130,|§12, 

p.'s.  16S,  |§  12,  from  the  executor,  administrator  or  other  person  who  sues  or  defends 
R*'L^i74,  §  6.  in  a  representative  capacity,  nor  a  claim  which  did  not  belong  to  him  at 
2  Met.'  255.       the  death  of  the  testator  or  intestate.  e  Met.  537. 

9  Met.  509.  11  Allen,  101.  153  Mass.  544. 

4  Gray,  284.  146  Mass.  333.  225  Mass.  45S. 

7  Gray,  170.  151  Mass.  204.  Op.  A.  G.  (1920)  265. 


Form  of  judg- 
ment against 
executor,  etc. 
R.S.9S,  §  13. 
G.  S.  130,  §  13. 
P.  S.  168,  §  13. 
R.  L.  174,  5  7. 


Section  7.     If,  upon  such  set-off  against  an  executor  or  adminis-  1 

trator,  a  balance  is  found  due  to  the  defendant,  the  judgment  therefor  2 

shall  be  in  the  same  form  and  have  the  same  effect  as  if  the  action  had  3 

been  commenced  by  the  defendant.  4 


Declaration 
in  set-off. 
1730-1,  7,  §  2. 
1734-5.  4,  §  2. 
1742-3.  19,  §  2. 
1784,  29,  §  12. 
1793,  75,  §  4 
R.  S.95.  §§  10. 
17,  19,24. 

1851,  233,  §  47. 

1852,  312,  §  37. 
G.  S.  130,§§16, 
17,  21. 


Section  8.  If  the  defendant  relies  on  a  claim  of  set-off,  he  shall 
file  a  declaration  in  set-off  which,  with  the  subsequent  pleadings  relative 
thereto,  shall  be  governed  by  the  same  rules  as  if  an  action  had  been 
brought  thereon;  and  the  plaintiff  shall  be  entitled  to  every  defence 
thereto,  which  he  might  have  had  in  an  action  against  himself.  After 
such  declaration  in  set-off  has  been  filed,  the  plaintiff  shall  not  discon- 
tinue his  action  without  the  consent  of  the  defendant. 


p.  S.  16S,  §§  16,  17 
R.  L.  174,  §  8. 
3  Met.  409. 
2  Gray,  200. 


7  Gray,  191. 

4  Allen,  498. 

5  Allen,  36. 
9  Allen,  192. 


112  Mass.  22. 
116  Mass.  283. 
228  Mass.  390. 
235  Mass.  3(M. 


Filing  of 
declaration. 
1730-1,  7,  I  2. 
1734-5.  4,  §  2. 
1742-3.  19,  §  2. 
1784,  29,  §  12. 
1793,  75,  I  4. 
R.  S.  96,  §§  16, 
23 

1851,233,  §47. 
1852,  312,  §  37. 


Section  9.     In  the  supreme  judicial  and  superior  courts,  a  declara-  1 

tion  in  set-off  shall  be  filed  with  the  answer.    In  the  municipal  court  of  2 

the  city  of  Boston,  it  may  be  filed  at  any  time  during  the  sitting  at  3 

which  the  writ  is  returnable,  or  within  such  further  time  as  the  court  4 

may  allow.     In  other  district  courts,  it  shall  be  filed  when  the  action  5 

is  entered,  or  within  such  further  time  as  the  court  allows.  6 


G.  S.  130,  |§  16,22. 
1870,  330,  §  3. 
1878,  170. 


P.  S.  168,  H  16,22. 
R.  L.  174,  §  9. 
1917,  326. 


126  Mass.  399. 
177  Mass.  397. 


Limitations 
in  bar. 
1793.  75.  I  4. 
1834, 182,  §  4. 
R.  S.96,  §20; 
120, §  19. 
G.  S.  130,  §  18; 
155,  §§  IS,  19. 
P.  S.  168,  §  18; 
197,  §§20,  21. 


Section  10.     The  provisions  of   law  relative  to   the  limitation   of  1 

actions  shall  apply  to  declarations  in  set-off,  and  the  time  limited  shall  2 

be  computed  from  the  commencement  of  the  action  by  the  plaintiff.  3 

This  section  shall  apply  to  actions  brought  by  the  commonwealth  or  4 

for  its  benefit.  5 


R.  L.  174.  §  10. 
18  Pick.  521. 


4  Gray,  385. 
11  Allen.  101. 


107  Mass.  2S5. 
135  Mass.  558. 


Judgment. 

1730-1,7,5  1. 

17.34-5,4,  §  1. 

1742-3.  19,  §  1. 

1784,  29,  §  12. 

R.  S.  96,  §§21- 

23 

G.'S.  130,§§19, 

20.  22. 

1878,  170. 

P.  S.  168,  §§  19, 

20,  22. 

R.L.  174,  §11. 

1917.326. 

10  Gush.  312. 

4  Gray,  511. 

1  Allen,  292. 

130  Mass.  447. 

229  Mass.  72. 

230  Mass.  160. 


Section  11.  Judgment  in  an  action  in  which  a  declaration  in  set-off  1 
has  been  filed  shall  be  rendered  in  favor  of  the  party  to  whom  a  balance  2 
is  found  due  for  the  amount  of  such  balance,  not  exceeding  the  juris-  3 
diction  of  the  court,  with  costs.  If  the  amounts  found  due  to  the  re-  4 
spective  parties  are  equal,  judgment  shall  be  rendered  in  favor  of  each  5 
for  such  amounts  and  an  entry  shall  be  made  that  the  judgments  are  6 
satisfied  by  the  set-off,  with  costs  to  either  party,  or  without  costs,  as  7 
the  court  orders.  If,  on  the  set-off  in  an  action  upon  a  claim  assigned  8 
to  the  plaintiff  before  action  is  brought,  a  balance  is  found  due  to  the  9 
defendant,  or  if  a  balance  is  found  due  from  any  person  otiier  than  10 
the  plaintiff,  judgment  shall  not  be  rendered  against  the  plaintiff  for  11 
the  balance.  12 


Chap.  233.] 


"WTTNESSES  AND  EVIDENCE. 


2505 


TENDER. 

1  Section  12.     The  payment   or   tender   of   payment   of   the   whole 

2  amount  due  on  a  contract  for  the  payment  of  money  after  it  is  due  and 

3  payable  and  before  action  is  commenced  shall,  if  pleaded,  have  the 

4  same  effect  as  if  made  at  the  time  provided  in  the  contract.    Such  pay- 

5  ment  or  tender  may  also  be  made  after  action  has  been  commenced  and 

6  at  least  four  days  before  the  return  day  of  the  writ,  with  costs  to  the 

7  time  of  payment  or  tender.    The  tender  last  mentioned  may  be  made  to 

8  the  plaintiff  or  to  his  attorney  in  the  action,  and,  if  not  accepted,  the 

9  defendant  may  avail  himself  of  the  tender  in  defence  in  like  manner  as 

10  if  made  before  the  commencement  of  the  action,  bringing  into  court 

11  the  amount  so  tendered. 


Payment  or 

tender. 

1830,  S5,  |§  1. 

2;    128. 

R.S.  100,  §§14- 

16. 

G.S.  130,  §§23. 

25. 

P.  S.  168,  §§23- 

25. 

R.  L.  174.  §  12. 

17  Pick.  366. 

10  Gray,  351. 

11  Allen,  527. 
98  Mass.  528. 
130  Mass.  277. 
1<;2  Mass.  275. 
165  Mass.  132. 


ISl  Mass.  275. 


1  Op.  A.  G.  510. 


1  Section  13.     If  such  tender  is  accepted,  the  plaintiff  or  his  attorney  Acceptance 

2  shall,  at  the  request  of  the  defendant,  sign  a  certificate  or  notice  thereof  i83o°sr'§  2. 

3  to  the  officer  who  has  the  writ,  and  deliver  it  to  the  defendant;   and  if  ^ ;|;  \'^]  |  H 

4  any  further  costs  are  incurred  for  a  service  made  by  the  officer  after  ^- 1  ^5*'  |  ^3 

5  the  tender  and  before  he  receives  notice  thereof,  the  defendant  shall 

6  pay  the  same  to  the  officer,  or  the  tender  shall  be  invalid. 


1  Section  14.     A  person  upon  whose  property  a  lien  is  claimed  may  Tender  in 

2  make  in  any  proceeding  a  tender  or  an  offer  of  judgment  relating  thei 
'3  in  like  manner  and  with  like  effect  as  in  matters  of  contract. 


p.  S.  168,  I  27. 
R.  L.  174.  §  14. 


REFERENCES. 

Set-off  by  deposit  in  savings  bank,  Chap.  168,  §  35. 
Tender  under  Mill  Act,  Chap.  253,  §  28. 
Tender  in  eminent  domain  cases,  Chap.  79,  §  39. 
Offer  of  judgment,  Chap.  231,  §§  74,  75. 


CHAPTER    233 


WITNESSES  AND  EVIDENCE. 


Skct. 

witnesses. 

1.  Witnesses,  how  summoned. 

2.  Service  of  summons. 

3.  Payment  or  tender  of  fees. 

4.  Liability  for  not  attending. 

5.  Non-attendance  a  contempt. 

6.  Warrant  to  compel  attendance. 

7.  Witnesses  before  executive  council. 

8.  Witnesses  before  town  officers,  commis- 

sions, etc. 

9.  Same,  warrant  to  compel  attendance. 

10.  Enforcement  of  attendance  by  courts. 

11.  Compelling  witnesses  to  testify. 

12.  Witnesses  in  criminal  cases  in  adjoining 

states. 

13.  Penalty  for  not  attending. 

14.  Oaths  administered  by  auditors,  etc. 

15.  Manner  of  administering  oaths. 


Sect. 

16.  Same  subject. 

17.  Affirmation. 

18.  Same  subject. 

19.  Persons   other    than    Christians,     how 

sworn. 

20.  Competency  of  witnesses. 

21.  Conviction  of  crime  may  be  shown  to 

affect  credibility. 
Cross-examination  of  adverse  party. 
Party  not  to  impeach  own  witness. 


22. 
23. 


DEPOSITIONS. 

24.  Depositions  in  civU  cases. 

25.  Depositions  of  witnesses  unable  to  at- 

tend trial. 

26.  Notice. 

27.  Service  of  notice. 

28.  Manner  of  service. 


2506 


WITNESSES   AND  EVIDENCE. 


[Chap.  2.33. 


Sect. 

29.  Verbal   notice.     Notice   not   necessary 

under  certain  circumstances. 

30.  Deponent,  how  sworn  and  examined. 

31.  Order  of  examination. 

32.  Manner  of  taking  deposition. 

33.  Certificate  to  be  annexed. 

34.  Deposition  to  be  sent  to  court,  etc. 

35.  Deposition  excluded  in  certain  ca.ses. 

36.  Objection  to  testimony  of  deponent. 

37.  Deposition  may  be  used  in  anottier  ac- 

tion, 3j-hen. 

38.  Compelling  deponent  to  testify. 

39.  Deposition  of  non-resident  witness  com- 

morant  here. 

40.  Courts  may  make  rules  for  depositions. 

41.  Depositions   of   persons   outside   com- 

monwealth. 

42.  Written  interrogatories,  etc. 

43.  Rules  of  courts  for  depositions  outside 

commonwealth. 

44.  Use  of  foreign  depositions  not  taken  as 

above  provided. 

45.  Depositions  for  other  states. 

DEPOSITIONS     TO     PERPETUATE     TESTLMONT. 

46.  Depositions  to  perpetuate  testimony. 

47.  Notice.    Compelling  testimony. 

48.  Procedure  on  objection  to  taking  dep- 

o.sition. 

49.  Method  of  taking. 

60.  Recording  in  registry  of  deeds. 

51.  Use  of  deposition. 

52.  Depositions  to  perpetuate  testimony  of 

persons  outside  commonwealth. 
63.  Application  for  such  deposition. 

54.  Notice. 

55.  Issuing  commission. 

56.  Written  interrogatories. 

57.  Rules  of  court  for  such  depositions. 
68.  Use  of  such  deposition. 

59.  Depositions  to  perpetuate  testimony  for 
use  against  all  persons. 


Sect. 

60.  Application. 

61.  Proceedings  on  application. 

62.  Return  of  deposition.     Record  in  reg- 

istry of  deeds. 

63.  Use  of  such  deposition. 

DYING  DECLARATIONS  AND  DECLARATIONS 
OF  DECEASED  PERSONS. 

64.  Dying  declaration  of  woman  in  certain 

cases. 

65.  Declaration  of  deceased  person. 

66.  Declaration  of  testator,  etc. 


EVIDENCE    IN    EQUITY. 

67.  Evidence  in  equity. 

PROOF    OF    ATTESTED    INSTRUMENT. 

68.  Proof  of  attested  instrument. 

PROOF    OF    STATUTES,    LAWS,    ETC. 

69.  Records  of  court  of  United  States  or 

other  slate. 

70.  Statutes  of   the   United    States,  states 

and  foreign  countries. 

71.  Common  law  of  other  states. 

72.  Laws  of  foreign  countries. 

73.  Oaths  before  a  notary  of  another  state 

or  country. 

74.  Acts  of  incorporation. 

75.  Acts,  resolves,  ordinances  and  by-laws. 

76.  Records,  etc.,  of  departments  of  com- 

monwealth, cities  or  towns. 

77.  Books,  etc.,   of   trust    companies    and 

banks. 

78.  Entries  in  books  of  account. 

79.  Records  of  hospitals. 

STENOGRAPHIC   TRANSCRIPTS. 

80.  Stenographic  transcripts. 


Witnesses, 
how  sum- 
moned. 
1701-2,  S,  §  4. 
1743-4,  24,  5  1. 

1753,  42. 
§5;  51.  §2. 

1754.  2S, 
§§5.6. 
1791,  53.  §  6. 
R.  S.  So,  §  3S: 
94,  §  1 ;  90.  §  28. 
G.  S.  131.  §  1. 
P.  S.  169,  §  1. 

1884,  247. 

1885,  141. 
1889,  197. 
1896.  476. 

R.  L.  175,  §  1. 


WITNESSES. 

Section  1.  A  clerk  of  a  court  of  record,  a  justice  of  the  peace  or  a  1 
special  commissioner  may  issue  summonses  for  witnesses  in  all  cases  2 
pending  before  courts,  magistrates,  auditors,  referees,  arbitrators  or  3 
other  persons  autliorized  to  examine  witnesses;  but  a  justice  of  the  peace  4 
or  a  special  commissioner  shall  not  issue  summonses  for  witnesses  in  5 
criminal  cases  except  upon  request  of  the  attorney  general,  district  at-  6 
torney  or  otlier  person  who  acts  in  the  case  in  behalf  of  the  common-  7 
wealth  or  of  the  defendant.  If  the  summons  is  issued  at  the  request  8 
of  the  defendant  that  fact  shall  be  stated  therein.  The  summons  shall  9 
be  in  the  form  heretofore  adopted  and  commonly  used,  but  may  be  10 
altered  from  time  to  time  like  other  writs.  11 


1 

2 


fiS^oiS!  Section  2.     Such  summons  may  be  served  in  any  county  by  an 

n^tit'.lt  officer  qualified  to  serve  ci\il  process  or  by  a  disinterested  person  by 

G- s.  la'i,  1 2.  exhibiting  and  reading  it  to  the  witness,  by  giving  him  a  copy  thereof    3 

1863,157,5  3.  ,         ,  .  ,  1-1  I.      1        1  A 

P.  s.  169.  §  2.  or  by  leaving  such  copy  at  his  place  oi  abode.  R.  l.  175,  52.  4 


Chap.  233.]  witnesses  and  evidence.  2507 

1  Section  3.     No  person  shall  be  required  to  attend  as  a  ■witness  in  a  Payment  or 

2  civil  case  or  for  the  defendant  in  a  criminal  case,  unless  the  legal  fees  c."i"i59,T3. 

3  for  one  day's  attendance  and  for  tra\'el  to  and  from  the  place  where  he  Jy^lf;  hfi'i. 

4  is  required  to  attend  are  paid  or  tendered  to  him. 

17S4,  28,  §  6.  G.  S.  131.  §  3.  1885,  141.  4  Cush.  249. 

R.  S.  94,  §  3.  P.  S.  169,  §  3.  R.  L.  175,  §  3.  99  Mass.  177. 

1  Section  4.     If  a  person  who  has  been  dulv  summoned  and  required  Liability  for 

.■'  ,,  ..^.  .,.  not  attending. 

2  to  attend  as  a  witness  under  the  preceding  sections  or  section  thirty-  1701-2,  5.  §  5. 

3  seven  of  chapter  two  hundred  and  eighteen  fails,  without  a  sufficient  ex-  1784,  28,  §'6. 

4  cuse,  to  attend,  he  shall  be  liable  to  the  aggrieved  party  in  tort  for  all  g.'  s!  131,  §  4. 

5  damages  caused  by  such  failure. 

P.  S.  169,  §4.  1918,  257,  §  435;  285,  1920,2. 

R.  L.  175,  §  4.  1919,  5. 

1  Section  5.     Such  failure  to  attend  as  a  witness  before  a  court,  jus-  Non-attend- 

2  tice  of  the  peace,  master  in  chancery,  master  or  auditor  appointed  by  trrnp?.""" 

3  a  court,  or  the  county  commissioners,  shall  also  be  a  contempt  of  the  174314:24,^/1. 

4  court,  and  may  be  punished  by  a  fine  of  not  more  than  twenty  dollars.      r.^s.'II.'I  s.' 

1838,  42.  G.  S.  131,  §  5.  12  Cush.  320. 

I80I;,  284,  §  9.  P.  S.  1C9,  §  5.  2  Grav,  123. 

1858,  93,  §§  2,  3.  R.  L.  175,  §5.  120  Masa.  118. 

1  Section  6.     The  court,  justice,  master  in  chancery,  master,  auditor  or  wan-ant 

2  county  commissioners  may  in  such  case  issue  a  warrant  to  bring  such  attendance. 

3  witness  before  them  to  answer  for  the  contempt,  and  also  to  testify  in  r.^s.'m,'!!.' 

4  the  case  in  which  he  was  summoned. 

G.  S.  131,  §  6.  R.  L.  175,  5  6.  2  Gray,  410. 

P.  S.  169,  §  6.  12  Cush.  320.  166  Mass.  123. 

1  Section  7.     Witnesses  may  be  summoned  to  attend  and  testify  at  a  witnesses 

2  hearing  before  the  executive  council,  or  a  committee  thereof,  as  to  mat-  utwrcounoii. 

3  ters  within  its  authority.    They  shall  be  summoned  in  the  same  manner,  p*s '/(fg*^! 9 

4  be  paid  the  same  fees  and  in  the  same  manner,  and  be  subject  to  the  ^-^^  ^2%^  ^• 

5  same  penalties  for  default,  as  witnesses  before  the  general  court.  ■»4i- 

1  Section  8.     Witnesses  may  be  summoned  to  attend  and  testify  and  to  witnesses 

2  produce  books  and  papers  at  a  hearing  before  a  city  council,  or  either  officers,  com- 

3  branch  thereof,  or  before  a  joint  or  special  committee  of  the  same  or  of  i8C3',T58,^ri. 

4  either  branch  thereof,  or  before  a  board  of  selectmen,  or  before  a  board  of  fgs^^,  2w',Vi 

5  police  commissioners,  or  before  a  fire  commissioner  or  a  board  of  fire  com-  Jgoo'iw'  1 1' 

6  missioners  or  a  commissioner  of  public  safety,  or  before  a  school  board,  R-  l-  i^s,  1 8. 

7  or  before  a  licensing  board  or  licensing  authorities  for  the  granting  of  1007!  328'. 

8  licenses  for  certain  non-intoxicating  beverages,  as  defined  in  section  igm]  si; 

9  one  of  chapter  one  hundred  and  thirty-eight,  or  before  a  fcoard  of  regis-  llo^'Masa'.lil^' 

10  trars  of  voters,  or  before  the  police  commissioner  or  election  commissioners 

11  of  Boston,  or  before  the  metropolitan  district  commission,  at  any  hearing 

12  before  them,  as  to  matters  within  their  authority;  and  such  M'itnesses  shall 

13  be  summoned  in  the  same  manner,  be  paid  the  same  fees  and  be  subject 

14  to  the  same  penalties  for  default,  as  witnesses  before  district  courts.     The 

15  presiding  officer  of  such  council,  or  of  either  branch  thereof,  or  a  member 

16  of  any  such  committee,  board  or  commission,  or  any  such  commissioner, 

17  may  administer  oatlis  to  witnesses  who  appear  before  such  council,  branch 

18  thereof,  committee,  board,  commission  or  commissioner,  respectively. 

1  Section  9.     If  a  witness  who  has  been  so  summoned  and  paid  or  Same, 

2  tendered  the  proper  fees  fails  to  attend  in  pursuance  thereof,  the  presiding  oompoi 

3  officer  of  sucli  city  council,  or  of  either  branch  thereof,  or  the  chairman  fsis,  i^H'i  2. 


2508 


WTTNESSKS   AND   E^■IDENCE. 


[Ch.\p.  233. 


P.  s.  169.  §  8.  of  such  committee,  board  or  commission,  or  any  such  commissioner,  may    4 

i9oo!  26?;  §  2  issue  a  warrant  to  bring  such  witness  before  them,  to  testify  in  the  case    5 

R.  L.  175,  §  9. 

120  Mass.  118. 


in  which  he  was  summoned. 


Enforcement 
of  attendance 
by  courts. 
1879.  155. 
P.  S.  112.  §  25. 
1883,  195. 
1891,  140. 
1901,  286. 
R.  L.  175,  §  10. 
141  Mass.  307. 
175  Mass.  179. 


Section  10.  A  justice  of  the  supreme  judicial  or  the  superior  court, 
upon  application  of  a  tribunal  authorized  to  summon  but  not  to  compel 
the  attendance  of  witnesses  and  the  giving  of  testimony  before  it,  may, 
in  his  discretion,  compel  the  attendance  of  such  witnesses  and  the  giving 
of  testimony  before  any  such  tribunal,  in  the  same  manner  and  to  the 
same  extent  as  before  said  courts.  i  Op.  a.  g.  aas. 


wkn'^^esTo  SECTION  11.     A  justicc  of  the  Supreme  judicial  or  the  superior  court, 

il%!^i55.  upon  the  application  of  a  magistrate  or  tribunal  authorized  to  summon 
189^  374  ^  ^^'  ^^'^  compel  the  attendance  of  witnesses  may,  in  his  discretion,  compel 
R  °l'  175  5  ^'^^  g'^'ing  of  testimony  by  them  before  such  magistrate  or  tribunal,  in 
175  Mass!  179. '  the  Same  manner  and  to  the  same  extent  as  before  said  courts. 

185  Mass.  171. 


Witnesses 
in  criminal 
cases  in 
adjoining 
states. 

1777-8.  5.  §  1. 
1873,319.  §  1. 
1874,  1.50. 
P.  S.  169,  §  10. 
R.  L.  175,  I  12, 


Section  12.    A  justice  of  the  peace,  upon  receipt  of  a  certificate  of  1 

the  clerk  of  a  court  of  record  in  the  state  of  Maine  or  in  a  state  adjoining  2 

this  commonwealth  that  a  criminal  prosecution  is  pending  in  such  court,  3 

and  that  a  resident  of  the  commonwealth  is  supposed  to  be  a  material  4 

witness  therein,  shall  issue  a  summons  requiring  such  witness  to  appear  5 

and  testify  at  the  court  in  which  such  case  is  pending.  6 


not  attending.        Section  13.     If  the  pcrsoH  on  whom  such  summons  is  served  is  paid 

Rs.'m'ln.  or  tendered  double  the  fees  allowed  by  law  for  tra\-el  and  attendance  of 

R,  L.  175,  §  13.  witnesses  in  the  supreme  judicial  court,  and  double  traveling  expenses 

for  the  whole  distance  out  and  home  by  tlie  ordinary  traveled  route,  he 

shall,  if  he  neglects  without  good  cause  to  attend  as  a  witness  at  the  court 

named  in  such  summons,  forfeit  not  more  than  three  hundred  dollars. 


administered         SECTION  14.     Arbitrators,  referees,  masters  and  auditors  appointed  1 

etc"^'*''""'      according  to  law  may  administer  oaths  or  affirmations  to  all  persons  2 

1852, 54.  offered  as  witnesses  before  them.  3 

G.  S.  131,  5  7.  P.  S.  169,  §  12.  R.  L.  175,  §  14. 


1 

2 


^miSiltering        Section  15.     The  usual  mode  of  administering  oaths  now  practiced 

1701-2  5  §  7  ^^  *^^  commonwealth,  with  the  ceremony  of  holding  up  the  hand,  shall 

R  ^s'  94'  I V'  ^^  obser\"ed  in  all  cases  in  M-hich  an  oath  may  be  administered  by  law,    3 

g!  s!  131,  §  8.  except  as  pro\-ided  in  sections  sixteen  to  nineteen,  inclusive.  4 

p.  S.  169,  §  13.  R.  L.  175,  §  15.  11  Allen,  243. 


i797!35!'f  10.        Section  16.     If  a  person  to  be  sworn  declares  that  a  different  mode  1 

g!  i;  i3i,S*9.    of  taking  the  oath  is  in  his  opinion  more  solemn  and  obligatory  than  2 

1873. 212,  §  1.    tijg  upholding  of  the  hand,  the  oath  may  be  administered  in  such  mode.  3 

p.  S.  169,  §  14.  R.  L.  175,  §  IG.  6  Mass,  262. 


Affirmation. 
1743-4,  20, 
§§  1.2. 
1758-9,  18, 
5§1.2. 


Section  17.     A  Friend  or  Quaker  when  called  on  to  take  an  oath  may     1 
solemnly  and  sincerely  affirm  under  the  penalties  of  perjury.  2 

1797,  35,  §§9,  10.  R.  S.  94.  §  9. 


1810,  127,  §  1. 


G.  S.  131,  §  10. 


P.  S.  169,  §  15. 
R.  L.  175,  §  17. 


fl^^gi^fi'-        Section  18.     A  person  who  declares  that  he  has  conscientious  scruples     1 
G  i'  131  ^ku  against  taking  an  oath  shall,  when  called  upon  for  that  purpose,  be  per-    2 


Chap.  233.]  witnesses  and  evidence.  2509 

3  mitted  to  affirm  in  the  manner  prescribed  for  Quakers,  if  the  court  or  p.  s.  169. 1 16. 

4  magistrate  on  inquiry  is  satisfied  of  the  truth  of  such  declaration.  3  Met^Mi  ^^' 

llCush.  410.  113  Mass.  344. 

1  Section  19.     A  person  beHe\'ing  in  any  other  than  the  Cliristian  re-  Persons 

2  Hgion  may  be  sworn  according  to  the  pecuHar  ceremonies  of  his  rehgion.  christians, 

3  A  person  not  a  behe\'er  in  any  religion  shall  be  required  to  testify  truly  n97,^33,™io. 

4  under  the  penalties  of  perjury,  and  tlie  evidence  of  his  disbelief  in  the  g  i?3i^§"2 

5  existence  of  God  may  be  received  to  afi'ect  his  credibility  as  a  witness.        P-  s.  i<l9.'§  i/- 

16  Gray,  33. 

1  Section  20.     Any  person  of  sufficient  understanding,  although  a  party,  Competency 

2  may  testify  in  any  proceeding,  ci\il  or  criminal,  in  court  or  before  a  per-  "sm, SIs^'I'qt; 

3  son  who  has  authority  to  receive  evidence,  except  as  follows:  ^^^'  ^  ^' 

1852,  312,  §  60.  1S64,  304,  §  1.  R.  L.  175,  §  20. 

1856,  188.  1865,  207,  §  2.  1911,  456,  §  7. 

1857,  305,  §  1.  1866, 148,  §  5;  260.  101  Mass.  193. 
1859,  230.  1870,  Sg.'J,  §  1.  116  Mass.  227. 
G.  S.  131,  §§  13,  14,  16.  P.  S.  169,  §  IS.  142  Mas3.  577. 

4  First,  Except  in  a  prosecution  begun  under  sections  one  to  ten,  in-  u  Gray,  ise. 

5  elusive,  of  chapter  two  hundred  and  seventy-three,  neither  husband  nor  13  Anen,244. 

6  wife  shall  testify  as  to  private  conversations  with  the  other.  ^^  ^^^^^-  ^^^■ 

113  Mass.  157.  152  Mass.  491.  181  Mass.  487. 

117  Mass.  90.  154  Mass.  488.  185  Mass.  96. 

121  Mass.  137.  155  Mass.  534.  223  Mass.  451. 

531  Mass.  31.  162  Mass.  412.  2.30  Mass.  567. 

143  Mass.  567.  177  Mass.  184.  235  Mass.  364. 
145  Mass.  289. 

7  Second,  Except  as  otherwise  provided  in  section  seven  of  chapter  162  Mass.  441. 

8  two  hundred  and  seventy-three,  neither  husband  nor  wife  shall  be  com-  219  Mass!  197'. 

9  pelled  to  testify  in  the  trial  of  an  indictment,  complaint  or  other  criminal 

10  proceeding  against  the  other. 

11  Third,  The  defendant  in  the  trial  of  an  indictment,  complaint  or  97  Mass.  545. 

12  other  criminal  proceeding  shall,  at  his  own  request,  but  not  otherwise,  107  Mass.  199, 

13  be  allowed  to  testify;  but  his  neglect  or  refusal  to  testify  shall  not  create  no  Mass.  411. 

14  any  presumption  against  him. 

113  Mass.  211.  137  Mass.  98.  175  Mass.  152. 

114  Ma.ss.  285.  140  Mass.  457.  196  Mass.  369. 
119  Mass.  312.  141  Mass.  58.  207  Mass.  240. 
123  Mass.  239,  273.  150  Mass.  315.  212  Mass.  209. 
130  Mass.  279.  163  Mass.  411.  149  U.  S.  60. 

1  Section  21.     The  conviction  of  a  witness  of  a  crime  may  be  shown  COTvictionot 

rt.  1  •  I'l  •!•  r    IT  crime  may 

2  to  affect  his  credibility,  except  as  follows:  be  shown  to 

3  First,  The  record  of  his  conviction  of  a  misdemeanor  shall  not  be  biiuy."*^  ' 

4  shown  for  such  purpose  after  five  years  from  the  date  on  which  sentence  ^851^3!  §97. 

5  on  said  conviction  was  imposed,  unless  he  has  subsequently  been  con-  Q^i;fii;ii3; 
G  victed  of  a  crime  within  five  years  of  the  time  of  his  testifying.  p^s^'fe!?'! ni 

7  Second,  The  record  of  his  conviction  of  a  felony  upon  which  a  fine  R.  l.  i75,  §  21. 

8  only  was  imposed,  or  a  sentence  to  a  reformatory  prison,  jail,  or  house  1914]  406. 

9  of  correction,  shall  not  be  shown  for  such  purpose  after  ten  years  from  l<j'o:  120' 

10  the  date  on  which  sentence  on  said  conviction  was  imposed,  unless  he  gg^MTs's^Sib. 

11  has  subsequently  been  convicted  of  a  crime  within  ten  years  of  the  time  Jos  Mass  244! 

12  of  his  testifying.  _  l^sMa^liisi! 

13  Third,  The  record  of  his  conviction  of  a  felony  upon  which  a  state  150  Mass!  los! 

14  prison  sentence  was  imposed  shall  not  be  shown  for  such  purpose  after  no  Mass]  u.' 

15  ten  years  from  the  date  of  expiration  of  the  minimum  term  of  imprison-  InMaSsw! 

16  ment  imposed  by  the  court,  unless  he  has  subsequently  been  convicted  i^op'!a!g.^499. 

17  of  a  crime  within  ten  years  of  the  time  of  his  testifying. 


2510 


WITNESSES   AND  EVmENCE. 


[Chap.  233. 


Cross- 
examination 
of  adverse 
party. 


Section  22.     A  party  who  calls  the  adverse  party  as  a  witness  shall  be     1 
allowed  to  cross-examine  him.  2 


1870,  393.  §  4. 
P.  S.  169,  §  20. 


R.  L.  175.  §  22. 
185  Mass.  427. 


198  Mass.  .•?06. 
202  Mass.  506. 


20S  Mass.  270. 
212  Mass.  335. 


Party  not 
to  impeach 
own  witness. 
1869,  425. 
P.  S.  169,  §  22. 
R.  L.  175,  §  24. 
102  Mass.  626. 
107  Mass.  149. 
118  Mass.  624. 

121  Mass.  433. 

122  Mass.  5. 
131  Mass.  283. 

133  Mass.  407. 

134  Mass.  191. 
139  Mass.  1. 


Section  23.     The  party  who  produces  a  witness  shall  not  impeach  1 

his  credit  by  evidence  of  bad  character,  but  may  contradict  him  by  other  2 

evidence,  and  may  also  prove  that  he  has  made  at  other  times  statements  3 

inconsistent  with  his  present  testimony;  but  before  proof  of  such  incon-  4 

sistent  statements  is  given,  the  circumstances  thereof  sufficient  to  desig-  .5 

nate  the  particular  occasion  shall  be  mentioned  to  the  witness,  and  he  6 

shall  be  asked  if  he  has  made  such  statements,  and,  if  so,  shall  be  allowed  7 

to  explain  them.              140  Mass.  463.                 ISO  Mass.  330.                172  Mass.  432.  8 


176  Mass.  253. 
185  Mass.  427. 


188  Mass.  484. 
207  Mass.  240. 


21 S  Mass.  144. 
219  Masa.  393. 


224  Mass.  229. 
233  Mass.  440. 


DEPOSITIONS. 


Section  24.     Depositions  may  be  taken  as  provided  in  this  chapter,     1 


Depositions 
in  civil  cases. 

G  s'  i3i.S'i7  ^°  ^^  ^^^^  before  courts,  magistrates  or  other  persons  authorized  to    2 
p.  s.  169,  §  23.  examine  witnesses,  except  in  criminal  cases. 

5  Gray,  440. 
103  Mass.  318. 


R.  L.  175,  §  25. 
3  Pick.  74. 


131  Masa.  88. 
170  Mass.  498. 


3 


Depositions 
of  witnesses 
unable  to 
attend  trial. 
C.  L.  158.  §  2. 
1095-6,  14, 
§§1.2. 
1785,  12,  §  3. 
1797,  35,  §  1. 
R.  .S.  94,  §  14. 
1857,  305,  §  2. 


Section  25.     If  a  witness  or  party  whose  testimony  is  wanted  in  a  1 

civil  cause  or  proceeding  pending  in  the  commonwealth  lives  more  than  2 

thirty  miles  from  the  place  of  trial,  or  is  about  to  go  out  of  the  common-  3 

wealth  and  not  to  return  in  time  for  the  trial,  or  is  so  ill,  aged  or  infirm  as  4 

to  make  it  probable  that  he  will  not  be  able  to  attend  at  the  trial,  his  5 

deposition  may  be  taken.                             G.  s.  isi,  §§  i8, 59.  6 

p.  S.  169,  §§  24,  65.  R.  L.  175.  §  26.  14  Gray,  130.  185  Mass.  171. 


c.°L°*i58.  §  2.  Section  26.  After  service  of  process  in  an  action,  or  after  a  submis- 
itotTs^  §'l  ^'  sion  to  arbitrators  or  referees,  either  party  may  apply  to  a  justice  of  the 
R 's'  94!'§\5  peace  or  a  special  commissioner,  who  shall  issue  a  notice  to  the  adverse 
p'  I'  169'  I  26'  P^i'ty  to  appear  and  propose  interrogatories  before  said  justice  or  com- 
1883, 252.'  '  raissioner  or  any  other  justice  of  the  peace  or  special  commissioner  at  the 
13  Allen,  33.    '  time  Eud  place  appointed  Tor  taking  the  deposition. 

106  Mass.  338.  131  Mass.  88.  135  Maas.  5S6.  139  Mass.  294. 


Service  of 
notice. 
1797,  35,  5  2. 
R.  S.  94. 
§§  16.  17. 


Section  27.    The  notice  may  be  served  on  the  adverse  party,  his  agent     1 
or  attorney,  and  if  there  are  several  plaintiffs  or  defendants,  on  any  of    2 

them.  G.  S.  131,  §  20.  p.  S.  leo,  §  26.  R.  L.  175,  §  23.  7  Pick.  137.  3 


^r''v'icr°^  Section  28.     The  notice  shall  be  served  by  delivering  an  attested 

i797~3'5^§'2  '■  f'opy  thereof  to  the  person  to  be  notified,  or  by  leaving  such  copy  at  his 
G  i'  i3iS^2i  pl^ce  of  abode,  not  less  than  twenty-four  hours  before  the  time  appointed 
p.'  s.'  169,'  §  2j!  for  taking  the  deposition,  and  also  allowing  not  less  time  than  at  the  rate 
7  Met.  287.  "  '  of  oue  day,  Sundays  excluded,  for  every  twenty  miles'  travel  to  the  place 

182  Mass.  541.     appointed.  220  Mass.  494. 


Verbal  notice. 
Notice  not 
necessary 
under  certain 


Section  29.  The  justice  or  commissioner  who  takes  the  -deposition 
may  give  a  verbal  instead  of  the  written  notice.  If  the  adverse  party 
isnTsTiT'  o^  'I's  attorney  in  writing  waives  notice,  or  if  the  defendant  does  not  enter 
G  l'  is'i  ^'22  ^^^  appearance  in  the  action  within  the  time  required  by  law,  no  notice 
p.'  s.'  169,'  I  28:  shall  be  required.  isss,  iss,  §  1.  R.  l.  175,  §  30. 


Chap.  233.]  witnesses  and  evidence.  2511 

1  Section  30.     The  deponent  shall  be  sworn  or  affirmed  to  testify  the  Deponent, 

2  truth,  the  whole  truth  and  nothing  but  tlie  truth,  relative  to  the  cause  and  cwmi'ned. 

3  for  which  the  deposition  is  taken.     He  shall  then  be  examined  by  the  ngf^si'f's*  '■ 

4  justice  or  commissioner,  and  the  parties  if  they  think  fit,  and  his  testi-  g- 1-  ^j^',^  ^\^ 

5  mony  shall  be  taken  in  writing. 

p.  S.  169,  §  29.  R.  L.  175,  §  31.  1  Allen,  109.  8  Allen,  146. 


1  Section  31.     The  party  producing  the  deponent  shall  be  allowed  ^'■^^"^"ation 

2  first  to  examine  him,  either  upon  verbal  or  written  interrogatories,  on  all  g- 1-  ?i',^5^Ji 

3  the  points  which  he  considers  material ;    the  adverse  party  may  then  p-  s.'  i69,"  |  so! 

4  examine  him  in  like  manner,  after  which  either  party  may  propose    ■   '      • 

5  further  interrogatories. 

1  Section  32.    The  deposition  shall  be  written  by  the  justice,  com-  Manner  of 

2  missioner,  deponent  or  by  a  disinterested  person  in  the  presence  and  whi'ol^^^ 

3  under  the  direction  of  the  justice  or  commissioner,  shall  be  carefully  lygt^ss.^i's^  ^' 

4  read  to  or  by  the  deponent,  and  then  subscribed  by  him. 

R.  S.  94,  §  22.  P.  S.  169,  §  31.  5  Met.  173. 

G.  S.  131,  §  25.  U.  L.  175,  §  33.  12  Cush.  132. 

1  Section  33.     The  justice  or  commissioner  shall  annex  to  the  deposi-  Certificate 

r*'  'n  e     1         •  f       ^  •         •         1  1  to  he  annexed. 

2  tion  a  certmcate  or  the  time  and  manner  of  taking  it,  the  person  at  whose  ys^.  ss.  §  3 

3  request  and  the  cause  in  which  it  was  taken,  the  reason  for  taking  it,  and  g'-  s.  isi,  §  26. 

4  that  the  adverse  party  attended,  or  if  he  did  not  attend  what  notice  r.  l.  175.  §  34. 

5  was  given  to  him. 

1  Mass.  73.  S  Met.  173.  1  Allen,  109,  475.  S  Allen,  146. 

20  Pick.  167.  11  Cuah.  364.  3  Allen,  358,  105  Mass.  96. 

1  Section  34.     The  deposition  shall  be  delivered  by  the  justice  or  Deposition 

2  commissioner  to  the  court,  arbitrators,  referees  or  other  persons  before  tocouXlto. 

3  whom  the  cause  is  pending,  or  shall  be  enclosed  and  sealed  by  him  and  fegs^e.^is.S^i. 

4  directed  to  it  or  them,  and  shall  remain  sealed  until  opened  by  it  or  them,  ^^l'  H'  H^ 

G.  S.  131.  §  27.  R.  L.  175.  §  35.  1  AUen,  475. 

P.  S.  169,  §  33.  8  Gray,  394. 

1  Section  35.    The  court  may  exclude  the  deposition  if  it  finds  tliat  °^f^'^°° 

2  the  adverse  party  failed  without  fault  to  attend  the  taking  thereof,  and  certain  oases. 

3  shall  exclude  it  if  it  finds  that  the  reason  for  taking  it,  or  other  sufficient  R.  s.'  94,"  1 25. 

4  cause  for  its  use,  no  longer  exists.  g.  s.  131,  §  2s. 

p.  S.  169,  §  34.  R.  L.  175,  §  36.  6  Cush,  394.  131  Mass.  88. 

1  Section  36.     Objections  to  the  competency  or  credibility  of  the  de-  objection  to 

2  ponent  and  to  the  admissibility  of  any  questions  asked  of  or  answers  de^jonen?  ° 

3  made  by  him  may  be  made  when  the  deposition  is  produced  in  the  §!  s!  isi.S^zo. 

4  same  manner  as  if  he  were  personally  examined  as  a  witness  at  the  trial ;  ^-  ^  \||'  1 1^; 

5  but  if  a  deposition  is  taken  upon  written  interrogatories  annexed  to  a  gpjckiel' 

6  commission,  all  objections  to  an  interrogatory  shall  be  made  before  the  s  ?'=:''•  si 

7  commission  issues,  and  unless  the  interrogatory  is  withdrawn  shall  be  2  Met.  58. ' 

8  noted  in  the  deposition,  otherwise  they  shall  not  be  allowed.  2  Gray,  279. 

4  Gray,  574.  10  Gray.  360.  103  Mass.  318. 

7  Gray,  418.  8  Allen,  677.  135  Mass.  319. 


1  Section  37.     If  a  plaintiff  discontinues  his  action  or  becomes  nonsuit.  Deposition 

2  and  another  action  is  afterward  commenced  for  the  same  cause  between  in  another 

3  the  same  parties  or  their  respective  representatives,  depositions  lawfully  i820,°8g!  H.' 


2512 


WITNESSES  AND  EVIDENCE. 


[Ch.U'.  233. 


R.  S.  94,  §  27. 
G.  S.  131,  §  30. 
P.  S.  169.  §  36. 
R.  L.  175,  §  38. 
22  Pick.  309. 


taken  for  the  first  action  may  be  used  in  the  second  in  the  same  manner  4 

and  subject  to  the  same  conditions  and  objections  as  if  originally  taken  5 

for  the  second  action,  if  the  deposition  was  duly  filed  in  the  court  in  6 

which  the  first  action  was  pending  and  has  remained  in  the  custody  of  7 

the  court  from  the  termination  of  the  first  action  until  the  commence-  8 

ment  of  the  second.  9 


depoSent"^  SECTION  38.     A  person  may  be  summoned  and  compelled  to  give  his     1 

ngffss!  §  4      deposition  at  a  place  within  twenty  miles  of  his  place  of  abode,  in  like    2 
g'  I"  131  ^5^32  manner  and  under  the  same  penalties  as  are  provided  for  a  witness  before    3 


G.  S.  131,  §  32. 

p.  s.  169,  §  38.  a  court. 


R.  L    175,  §  40. 


^on-KsVdTnt'  Section  39.  A  person  not  a  resident  of  but  found  within  the  oom- 
moranthere  mouwcalth  may  be  summoned  and  compelled  to  give  his  deposition 
G  ^s  ill'  5  33  ^^  ^^y  place  within  ten  miles  of  the  place  at  which  the  summons  is  served 
p.' s.' 169,' |. 39.'  upon  him,  in  like  manner  and  under  the  same  penalties  as  he  may  be 
summoned  and  compelled  to  attend  as  a  witness  before  a  court. 


makeruTra'  Section  40.     The  courts  may  make  rules  regulating  the  time  and  1 

t?on3^^°^'        manner  of  opening,  filing  and  safe  keeping  of  depositions,  and  the  taking  2 

R.  s.'94,  §  28.    and  use  thereof.  g.  s.  i3i,  §  ai.  3 

p.  S.  169.  §  37.  R.  L.  175,  §  39.  133  Mass.  131.  135  Mass.  586. 


Depositions 
of  persons 
■  outside  com- 
monwealth. 
1797,  35.  §  6. 
1829,  125,  I  1. 
R.  S.  94,  I  30 
1856,  233,  I  1. 
G.  S.  131,  §  3 
p.  S.  169,  I  41 
R.  L.  175,  I  4: 
6  Met.  270. 
12  Gray,  26. 


Section  41,     The  deposition  of  a  person  without  the  commonwealth  1 

may  be  taken  under  a  commission  issued  to  one  or  more  competent  2 

persons  in  another  state  or  country  by  the  court  in  which  the  cause  is  3 

pending,  or  it  may  be  taken  before  a  commissioner  appointed  by  the  4 

governor  for  that  purpose,  and  in  either  case  the  deposition  may  be  used  5 

in  the  same  manner  and  subject  to  the  same  conditions  and  objections  6 

as  if  it  had  been  taken  in  the  commonwealth.  io3  Mass.  4i.  7 

136  Mass.  386.  168  Mass.  415.  206  Mass.  395.  229  Mass.  435. 


Section  42.     Unless  the  court  otherwise  orders,  a  deposition  taken 


written  inter- 
rogatories, etc. 

g'  I'  131  S^35  before  commissioners  shall  be  taken  upon  wTitten  interrogatories,  which 

i8§i  188  I2''  ^^^^^  ^^  ^^^^  i"^  ^^^  clerk's  office  and  notice  thereof  given  to  the  adverse 

i899|  123',  1 1.    party  or  his  attorney,  and  upon  cross  interrogatories,  if  any  are  filed  by 

"  him.    But  if  the  defendant  does  not  enter  his  appearance  in  the  action 

within  the  time  required  by  law,  no  notice  to  him  shall  be  required.    The 

court  may  in  any  case  order  depositions  to  be  taken  before  commissioners, 

in  the  manner  provided  by  law  for  taking  the  depositions  of  witnesses 

within  the  commonwealth  in  actions  at  law,  or  in  such  manner  as  the 

court  orders,  and  in  such  cases  shall  determine  what  notice  shall  be  10 

given  to  the  adverse  party,  his  agent  or  attorney,  and  the  manner  of  serv-  11 

ice  thereof,  may  authorize  the  taking  of  depositions  of  witnesses  not  12 

specifically  named  in  the  commission,  and  may  limit  the  extent  of  the  13 

inquiry.    The  court  may  order  the  production  before  the  commissioner  14 

of  any  books,  instruments  or  papers  relative  to  any  matter  in  issue.  15 


Rules  of  courts 
for  depositions 
outside  com- 
monwealth. 
1797,  35,  §  7. 


Section  43.     The  courts  may  make  rules  for  the  issuing  of  commis-  1 

sions,  the  filing  of  interrogatories  and  all  other  matters  relative  to  dep-  2 

ositions  taken  without  the  commonwealth.  3 

R.  S.  94,  §32.  G.  S.  131,  §  36.  P.  S.  169,  5  42.  R.  L.  175,  §  44. 


Chap.  233.]  witnesses  and  evidence.  2513 

1  Section  44.     Depositions    and    affidavits    taken    without   the    com-  Use  of  foreign 

2  monwealth  in  any  manner  other  than  is  provided  in  the  tliree  preceding  Eot'ta'k°n"' 

3  sections,  if  taken  before  a  notary  public  or  other  person  authorized  by  pro^lided. 

4  the  laws  of  any  other  state  or  country  to  take  depositions,  may  be  ad-  l^^g'^'y"' 

5  mitted  or  rejected  in  the  discretion  of  the  court;    but  such  deposition  gl^l^s^lv 

6  or  affidavit  shall  not  be  admitted  unless  the  court  finds  that  the  adverse  p.' s,' loo,' §  43.' 

7  party  had  sufficient  notice  of  the  taking  thereof  and  an  opportunity  to  14  pick!  313.  ""' 

8  cross-examine  the  witness,  or  that  from  the  circumstances  of  the  case  it  441^"''^'  ^^'' 

9  was  impossible  to  give  him  such  notice.  24  Pick.  35.         2  Met.  522. 

6  Met.  270.  12  Gray,  26.  103  Mass.  41. 

1  Gush.  449.  5  Allen,  320.  162  Mass.  137. 

9  Gray,  370.  8  Allen,  391,  229  Mass.  435. 

1  Section  45.     A  person  may  be  summoned  and  compelled,  in  like  Depositions 

2  manner  and  under  the  same  penalties  as  are  provided  for  a  witness  before  i?ates''^'^ 

3  a  court,  to  give  his  deposition  in  a  cause  pending  in  a  court  of  any  other  R"y'|4'  |  53 

4  state  or  government.    Such  deposition  may  be  taken  before  a  justice  of  pfioo^'sM*' 

5  the  peace  or  a  special  commissioner  in  the  commonwealth,  or  before  a  issa.  252. 

•      •  •  •  1S89    197 

6  commissioner  appointed  under  the  authority  of  the  state  or  government  r.  l'.  iVs',  §  46. 

7  in  which  the  action  is  pending.    If  the  deposition  is  taken  before  such  ^^     ^"'^^  ' 

8  commissioner,  the  witness  may  be  summoned  and  compelled  to  appear 

9  before  him  by  process  from  a  justice  of  the  peace  or  a  special  commissioner 
10  in  the  commonwealth. 


depositions  to  perpetuate  testimony. 

1  Section  46.     If  a  person  desires  to  perpetuate  his  own  testimony  or  Depositions 

2  the  testimony  of  another  person,  he  shall  apply  in  writing  to  two  justices  tesfi^ny""'^ 

3  of  the  peace  or  special  commissioners,  one  of  whom  shall  be  an  attorney  §;  |;  isi.^j^sg. 

4  at  law,  requesting  them  to  take  his  deposition  or  the  deposition  of  the  j?"s'fi?9'5  45 

5  person  whose  testimony  he  desires  to  perpetuate,  and  stating  briefly  R-  l.  175,  §  47. 

6  and  substantially  his  title,  claim  or  interest  in  or  to  the  subject  relative 

7  to  which  he  desires  the  evidence  perpetuated,  the  names  of  all  other  per- 

8  sons  interested  or  supposed  to  be  interested  therein  and  the  name  of  the 

9  witness  proposed  to  be  examined. 

1  Section  47.     The  justices  or  commissioners  shall  thereupon  cause  Notice. 

2  notice  of  the  time  and  place  appointed  for  taking  the  deposition  to  be  testimony.^ 

3  given  to  all  persons  named  in  said  statement  as  interested  in  the  case,  in  HH]  ||j'  1 1; 

4  the  manner  provided  in  sections  twenty-six  to  twenty-nine,  inclusive;  iVfg^jlj 

5  and  if  in  the  opinion  of  the  justices  or  commissioners  no  sufficient  pro-  i?3o,  140,  §  2. 

6  vision  is  made  by  law  for  giving  notice  to  parties  adversely  interested,  §§.46,45.' 

7  they  shall  cause  such  reasonable  notice  to  be  given  as  they  consider  p.  s.|io9,' 

8  proper.    A  person  may  be  summoned  and  compelled  to  give  a  deposition  r.  l!'i75,  §  48. 

9  in  perpetuation  of  his  testimony  in  like  manner  and  under  the  same 
10  penalties  as  are  provided  for  a  witness  before  a  court. 

1  Section  48.     If  at  the  time  and  place  so  appointed  a  witness  or  a  Procedure  on 

2  person  interested  appears  and  objects,  the  justices  or  commissioners  takfnB'°'"° 

3  shall  not  take  the  deposition  unless  upt)n  hearing  the  parties  they  shall  iIm^ho? 4 1. 

4  find  that  such  testimony  may  be  material  to  the  petitioner  and,  except  f^.f  ^^h  '  *'• 

5  when  the  witness  himself  is  petitioner,  that  it  is  not  sought  for  the  pur-  £•  j- \'75  Wd 

6  pose  of  discovery  or  of  using  it  in  an  action  then  pending  or  thereafter 

7  to  be  brought  against  said  witness,  and  that  the  petitioner  is  in  danger  of 


2514  WITNESSES  -WD  EVIDENCE.  [Ch.4P.  233. 

losing  the  same  before  it  can  be  taken  in  any  action  wherein  his  right,  8 

title,  interest  or  claim  can  be  tried.    In  all  cases  the  petitioner,  his  agent  9 

or  attorney  shall,  at  the  request  of  such  witness  or  of  a  person  interested,  10 

be  examined  on  oath  relative  to  his  reasons  for  taking  the  deposition.  11 

oftSg              Section  49.     The  deponent  shall  be  sworn  and  examined,  and  his  1 

1797, 35.  §  8      deposition  shall  be  written,  read  and  subscribed  in  the  manner  provided  2 

R.  s!  94. '§  36.    in  sections  thirtv  to  thirtv-two,  inclusive;  and  the  iustices  or  commis-  3 

1874,297.'       ■  sioners  shall  sign  and  annex  thereto  a  certificate  of  the  name  of  the  4 

R.  L.\*?5.  §  50.  person  at  whose  request  it  was  taken,  the  names  of  all  persons  who  were  5 

5  Met.  173.       notified  to  attend,  of  all  who  attended  the  taking  thereof,  of  the  time  6 

and  manner  of  taking  it,  and  that  it  was  taken  for  the  purpose  of  per-  7 

petuating  the  testimony  therein.  8 

S"^^-            Section  50.     The  deposition,  the  certificate  and  the  application  of  the  1 

iTO^Tsii  §  8      petitioner  shall,  within  ninety  days  after  the  taking  of  the  deposition,  be  2 

G  i'  131  ^M3  recorded  in  the  registry  of  deeds  in  the  county  or  district  where  the  land  3 

1874,297.'         lies,  if  the  deposition  relates  to  land;  otherwise,  in  the  county  or  district  4 

r'.'l.  175,  §51.  where  the  parties  or  some  of  them  reside.  5 

deposition.            SECTION  51.     If,  at  the  time  of  taking  such  deposition  or  afterward,  1 

1826' 86' 1 1'     ^"^  action  is  pending  between  the  petitioner  and  the  persons  named  in  2 

R|-9|,i38    his  application  or  any  of  those  who  were  notified  as  aforesaid,  or  any  3 

1874, 297.'   _  ■  persons  claiming  under  any  of  said  persons,  relative  to  the  title,  claim  or  4 

R.  L.  175.  §  62.  interest  set  forth  in  the  application,  the  deposition  or  a  certified  copy  5 

ic    74.        ^£  j^  from  the  registry  of  deeds  may  be  used  in  such  action  in  the  same  6 

manner  and  subject  to  the  same  conditions  and  objections  as  if  it  had  7 

been  originally  taken  therefor.  8 

S^peSi't>5?te         Section  52.     Depositions  to  perpetuate  the  testimony  of  persons  liv-  1 

testimony  of      \^-^„  without  the  commouwealth  mav  be  taken  without  the  common-  2 

persona  outside        c5  ...  , 

coinmonweaith.  wealth  upou  a  commlsslon  issued  by  the  supreme  judicial  or  the  superior  3 

g!  S'.  131,  §  46.  COm't.               P.  S.  169,  §  52.               R.  L.  175,  §  S3.               3  Pick.  14.               132  Mass.  171.  4 

forMch''°°           Section  53.     The  person  who  desires  to  take  such  deposition  shall  1 

r's"94°«'4i     ^^  ^'^  either  of  said  courts  the  application  provided  for  in  section  forty-  2 

G.  s.  131.  §  47.  six;  and  if  the  subject  of  the  proposed  deposition  relates  to  land  within  3 

R.  li.  175,  §  54.  the  commonwealth,  a  copj'^  of  the  application  with  the  statement  therein  4 

shall  be  filed  in  the  registry  of  deeds  for  the  county  or  district  where  5 

the  land  or  any  part  thereof  lies;  otherwise,  in  the  registry  of  deeds  for  6 

the  county  or  district  where  the  parties  or  some  of  them  reside.  7 

R°s.'^94,  §  42.       Section  54.     The  court  shall  order  notice  of  such  application  and  1 

p"  i'  169'  I  54'  statement  to  be  served  on  all  the  persons  named  therein  as  adversely  in-  2 

1882.  mo!         terested,  and  living  within  the  commonwealth,  fourteen  days  at  least  3 

132  Mass.' 171. '  bcforc  the  time  therein  appointed  for  hearing  the  parties,  and  shall  4 

order  reasonable  notice  to  be  given  to  such  persons  living  without  the  5 

commonwealth.  6 

^^tSmL'              Section  55.     If,  upon  hearing  the  parties  who  appear,  the  court  finds  1 

R- 1-  94,  §  43.    that  there  is  sufficient  cause  for  taking  the  deposition,  it  shall  issue  a  com-  2 

p.' s.' 169,' 1 55.'  mission  therefor  in  like  manner  as  for  taking  a  deposition  to  be  used  in  a  3 

'   ■  '^'       ■  cause  pending  in  the  same  court.  4 


Chap.  233.]  witnesses  and  evidence.  2515 

1  Section  56.     The  deposition  shall  be  taken  upon  -wTitten  interroga-  Written  inter- 

2  tories  filed  by  the  applicant,  and  cross  interrogatories,  if  any  are  filed  r,^s.9"!'§44. 

3  by  any  party  adversely  interested,  and  it  shall  be  taken  and  retiu-ned  p.'f.ilg.'s^ss?' 

4  substantially  in  the  same  manner  as  if  taken  to  be  used  in  a  cause  pending  ^-  ^- 1'^'  ^  ^^• 

5  in  the  same  court. 

1  Section  57.     The  supreme  judicial  court  may  make  rules  for  taking  Rules  of 

2  depositions  to  perpetuate  the  testimony  of  witnesses  without  the  com-  depositbr"" 

3  monwealth,  taken  under  a  commission  from  the  supreme  judicial  or  the  §!  s.  w'l!  I  m. 

4  superior  court,  and  for  filing  or  recording  them.  R.  l.  175,  §  ss.  ^  ^-  ^^^-  ^  ^^■ 

1  Section  58.     Depositions  to  perpetuate  the  testimony  of  witnesses  Use  of  such 

2  which  are  taken  without  the  commonwealth  under  this  chapter  may  be  R^"sf94°§'47. 

3  used  in  like  manner  as  if  taken  within  the  commonwealth. 

G.  S.  131,  §  53.  P.  S.  169,  §  59.  R.  L.  175,  §  59.  3  Pick.  14. 

1  Section  59.     Depositions  to  perpetuate  the  testimony  of  witnesses  Depositions  to 

2  within  or  without  the  commonwealth,  so  that  they  may  be  evidence  t'e"t'i'mony''for 

3  against  all  persons,  may,  after  public  notice,  be  taken  upon  a  commis-  afi^pTreons' 

4  sion  issued  by  the  supreme  judicial  court  or  the  superior  court.  k.  s.  94,  §  48. 

G.  S.  131,  §  54.  P.  S.  169.  §  60.  R.  L.  175,  §  60.  132  Mass.  171. 

1  Section  60.     The  person  who  desires  to  have  such  deposition  taken  Application. 

2  may  apply  to  either  of  said  courts  in  the  manner  provided  in  section  q]  |.  ^131^  1%^ 

3  fifty-three,  and  the  proceedings  thereon  shall  be  the  same  as  are  provided  r.  L.'ns.Vei. 

4  in  sections  fifty-four  to  fifty-six,  inclusive. 

1  Section  61.     The  court  shall,  in  addition  to  the  proceedings  before  Proceedings  on 

2  provided,  require  the  applicant,  upon  oath  or  otherwise,  in  its  discretion,  it  sl^i.'Tso. 

3  to  state  the  names  of  all  persons  known  or  supposed  to  be  interested  in  p.l.'/e^g.'f^el*' 

4  the  subject  matter  of  the  application,  and  shall  in  the  commission  direct  faa^M^^'  hT' 

5  tiie  commissioner  or  commissioners  to  publish  in  such  newspaper  within 

6  or  without  the  commonwealth,  or  both,  or  in  such  other  manner,  as  the 

7  court  orders,  such  notice  of  the  time  and  place  of  taking  such  deposition 

8  and  of  the  subject  matter  thereof  as  the  court  approves.    Such  notice 

9  shall  be  addressed  by  name  to  all  persons  who  are  known  or  supposed  to 

10  be  interested  in  the  subject  matter  of  the  application,  and  generally  to 

11  all  others,  and  shall  state  that  they  may  attend  and  propose  cross  in- 

12  terroga tories  to  the  witness.    The  court  may  requii-e  additional  personal 

13  notice  of  the  time  and  place  of  taking  and  of  the  subject  matter  of  such 

14  deposition  to  be  given  to  such  persons  and  in  such  manner  as  it  orders. 

1  Section  62.     After  such  deposition  has  been  taken,  it  shall  be  returned  Return  of 

,,  ...  ii*i<i>Ti  •     deposition. 

2  to  the  court  by  whose  order  the  commission  issued,  which,  if  the  deposi-  Record  in 

3  tion  is  foiuid  to  have  been  taken  according  to  law  and  the  directions  deeds. 

4  contained  in  the  commission,  shall  order  it  to  be  recorded  within  thirty  c'.  s.  131,  §  57. 

5  days  after  the  date  of  the  order  in  the  registry  of  deeds,  in  the  manner  r.l.\''75,V63. 

6  provided  in  section  fifty.  i3i  Mass.  179. 

1  Section  63.     A  deposition  taken  and  recorded  under  the  provisions  of  Use  of  ?uch 

2  the  four  preceding  sections,  or  a  certified  copy  thereof  from  the  registry  R.  s.  94,  §  52. 

3  of  deeds,  may  be  used  by  the  person  at  whose  request  it  was  taken,  or  p.'s.'iog.'s  64.' 

4  by  any  person  who  claims  under  him,  against  any  person  whatever,  in  ^'  ^'  ^^^'  ^  ^' 


2516 


WITNESSES  AND   EVIDENCE. 


[CH.4P.  233. 


any  action  or  process  wherein  is  brought  in  question  the  title,  claim  or  5 

interest  set  forth  in  the  statement  upon  which  the  commission  was  6 

founded,  in  the  same  manner,  and  subject  to  the  same  conditions  and  7 

objections,  as  if  it  had  been  originally  taken  for  said  action  or  process.  8 


D'nNG  DECLARATIONS  AND  DECLARATIONS  OF  DECEASED  PERSONS. 

tion  of  woman"  SECTION  64.  In  prosccutious  uudcF  scctiou  nineteen  of  chapter  two 
iases^'*'"  hundred  and  seventy-two  in  which  the  death  of  a  woman  is  alleged  to 
r**l'.  17^'.  §  6s.  liave  resulted  from  the  means  therein  described,  her  dying  declarations 
153  Maas.  343.   shall  bc  admisslblc  in  evidence.  les  Mass.  us,  m. 


195  Mass.  100. 


207  Mass.  563. 


213  Mass.  563. 


224  Mass.  229. 


Declaration 
of  deceased 
person. 
1S9S,  635 


Section  65.     A  declaration  of  a  deceased  person  shall  not  be  inadmis-  1 

sible  in  evidence  as  hearsay  if  the  court  finds  that  it  was  made  in  good  2 

fes'iiii^'  174^'  f^ith  before  the  commencement  of  the  action  and  upon  the  personal  3 

175  Mass.  137.  knowledge  of  the  declarant.  4 


ISO  Mass.  187. 

183  Mass.  262. 

186  Mass.  75. 

188  Mass.  38,  214.  593. 

190  Mass.  184,  563. 

192  Mass.  8,  52. 

193  Mass.  58. 

194  Mass.  218,  560. 
196  Mass.  316. 
198  Mass.  109,  393. 

201  Mass.  444. 

202  Mass.  500. 


203  Mass.  273,  299. 

204  Mass.  383. 

207  Mass.  563. 

208  Mass.  193,  221. 

210  Mass.  500,  581. 

211  Mass.  590. 

212  Mass.  352,  547. 

214  Mass.  366. 

215  Mass.  SO,  199,  318. 

216  Mass.  51. 

217  Mass.  148,  558. 

218  Mass.  205. 


220  Mass.  539. 

221  Mass.  248,  304,  461. 
223  Mass.  501. 

225  Mass.  68. 

226  Mass.  168,416. 

228  Mass.  516,  563. 

229  Mass.  275,  304. 

230  Mass.  347. 

231  Mass.  186. 

232  Mass.  183. 

235  Maes.  428. 

236  Mass.  165. 


Declaration  of 
testator,  etc. 
1896,  445. 
R.  L.  175,  §  67. 
175  Mas3.  137, 
177. 

180  Mass.  483. 
185  Mass.  455. 
187  Mass.  109. 
201  Mass.  444. 
206  Mass.  534. 
212  Mass.  171. 
217  Mass.  658. 


Section  66.  If  a  cause  of  action  brought  against  an  executor  or  ad- 
ministrator is  supported  by  oral  testimony  of  a  promise  or  statement 
made  by  the  testator  or  intestate  of  the  defendant,  evidence  of  statements, 
written  or  oral,  made  by  the  decedent,  memoranda  and  entries  written 
by  him,  and  evidence  of  his  acts  and  habits  of  dealing  tending  to  disprove 
or  to  show  the  improbability  of  the  making  of  such  promise  or  statement, 
shall  be  admissible.  227  Mass.  5S4. 


EVIDENCE   in  EQUIIT. 

S]^ilfty'?'^  "*  Section  67.    Evidence  in  equity  proceedings  shall  be  taken  in  the  1 

G^s'isi'teo  same  manner  as  in  actions  at  law,  unless  the  court  otherwise  orders;  2 

fi^A  13  5.  ^„^-  but  this  section  shall  not  prevent  such  use  of  affidavits  as  has  been  here-  3 


1899  123       « 

R.  l!  175,  §69.  tofore  allowed. 


13  Allen,  33. 


137  Mass.  487. 


Proof  of 
attested 
instrument. 
1897,  386. 


PROOF  OF  ATTESTED  INSTRUMENT. 

Section  68.     A  signature  to  an  attested  instrument  or  writing,  except 
a  will,  may  be  proved  in  the  same  manner  as  if  it  ^^  ere  not  attested. 

R.  L.  175,  I  70. 


PROOF   OF  ST.4.TUTES,   LAWS,   ETC. 

of''unit^stato  Section  69.  The  records  and  judicial  proceedings  of  a  coiu-t  of  an- 
R  s''9r§'5^7  other  state  or  of  the  United  States  shall  be  admissible  in  evidence  in  this 
as:  i3l  §  61.  commonwealth,  if  authenticated  by  the  attestation  of  the  clerk  or  other 
r'.  l.  175,  §  71,  officer  who  has  charge  of  the  records  of  such  court  under  its  seal. 

119  Mass.  262.  209  Mass.  282. 


5  Met.  436. 
10  Allen,  485. 


12  Allen,  98. 
103  Maas.  283. 


178  Mass.  68. 


236  Mass.  446. 


Chap.  233.]  witnesses  and  evidence.  2517 

1  Section  70.     Printed  copies  of  the  statute  laws  of  any  other  state  or  statutes  of 

2  territory  or  of  the  United  States  or  of  a  foreign  country,  which  purport  stat«i°stiites 

3  to  be  published  under  the  authority  of  their  respective  governments,  or  TOuntrles^" 

4  which  are  commonly  admitted  and  read  as  evidence  in  their  courts,  shall  g- 1-  ^gj  5  ^^ 

5  be  admitted  in  this  commonwealth,  in  all  courts  of  law  and  on  all  oc-  §•  f;  ^^^g  \^7^5 

6  casions,  as  prima  facie  evidence  of  such  laws.  3  Pick.  293. 

8  Gray,  150.  4  Allen,  504.  10  Allen.  337.  105  Mass.  480. 

1  Section  71.     The  unwritten  or  common  law  of  any  other  of  the  common  law 

2  United  States  or  of  the  territories  thereof  may  be  proved  as  facts  by  R.a'ol.Teo^' 

3  parol  evidence;    and  the  books  of  reports  of  cases  adjudged  in  their  p.'s.'iegl's^l*' 

4  courts  may  also  be  admitted  as  evidence  of  such  law. 

R.  L.  175,  §  76.  10  Allen,  485.  135  Mass.  126,  349. 

7  Met.  384.  99  Mass.  253.  156  Mass.  65. 

12  Gray,  244.  100  Mass.  79.  161  Mass.  111. 

7  Allen,  395.  124  Mass.  85.  170  Mass.  356. 

1  Section  72.     The  existence,  tenor  or  effect  of  all  foreign  laws  may  be  Laws  of  for- 

2  proved  as  facts  by  parol  evidence;   but  if  it  appears  that  they  are  con-  r^s.*'94.°§T^ 

3  tained  in  a  written  statute  or  code,  the  court  may  in  its  discretion  reject  p'siU'^n' 

4  any  evidence  of  such  law  which  is  not  accompanied  by  a  copy  thereof.      ^  ^  ^^^55^' 

193  Mass.  588. 

1  Section  73.     All  oaths  and  affidavits  administered  or  taken  by  a  Oaths  before 

2  notary  public,  duly  commissioned  and  qualified  by  authority  of  any  an^ufti-^state 

3  other  state  or  government,  within  the  jurisdiction  for  which  he  is  com-  ^sfs.Tgr' 

4  missioned,  and  certified  under  his  official  seal,  shall  be  as  effectual  in  rl^iIs^^^s 

5  this  commonwealth  as  if  administered  or  taken  and  certified  by  a  justice 

6  of  the  peace  therein. 

1  Section  74.     Acts  of  incorporation  shall  be  held  to  be  public  acts  and  Acts  of  in- 

2  as  such  may  be  declared  on  and  given  in  e\adence.  r.  s.  2,  §  3. 

G.  S.  3,  §  5.  P.  S.  169,  §  68.  R.  L.  175,  §  72.  194  Mass.  596. 

1  Section  75.     The  printed  copies  of  all  statutes,  acts  and  resolves  of  ^'"i^  "-cTOives, 

,  ,,  11.  •  1.1  11.   11  1.  ordmances 

2  the  commonwealth,  public  or  prn-ate,  which  are  published  under  its  au-  andby-iaws. 

3  thoritv,  and  copies  of  the  ordinances  of  a  city,  the  by-laws  of  a  town  or  of  R.  s.'94,'5  ss. 

4  the  rules  and  regulations  of  a  board  of  aldermen,  if  attested  by  the  clerk  p.'s.'i(.9,'§  69.' 

5  of  such  city  or  town,  shall  be  admitted  as  sufficient  evidence  thereof  in  all  r^^l.  175,  §  73. 

6  courts  of  law  and  on  all  occasions.  is4  Mass.  598. 

1  Section  76.    Copies  of  books,  papers,  documents  and  records  in  any  Records,  etc., 

2  department  of  the  commonwealth  or  of  any  city  or  town,  authenticated  of  commo"!-'"'' 

3  by  the  attestation  of  the  officer  who  has  charge  of  the  same,  shall  be  „  tiwis.'"^^ 

4  competent  evidence  in  all  cases  equally  with  the  originals  thereof;  pro-  p^^'i^olfs  70 

5  vided,  that,  except  in  the  case  of  books,  papers,  documents  and  records  J^sq,  387,  §  2.^ 

6  of  the  department  of  pubHc  utilities  in  matters  relating  to  common  i9'i3,'7s4,'5  7.  ' 

7  carriers,  the  genuineness  of  the  signature  of  such  officer  shall  be  at-  i76MttS4r.b. 

8  tested  by  the  secretary  of  the  commonwealth  under  its  seal  or  by  the  111  MaS;  soi! 

9  clerk  of  such  city  or  town,  as  the  case  may  be.  1  Op.  a.  g.  423. 

1  Section  77.     Copies  from  the  records,  books  and  accounts  of  a  trust  Books,  etc,  of 

2  company,  national  bank  or  savings  bank,  doing  business  in  the  com-  pmeTand 

3  monwealth,  shall  be  competent  evidence  in  all  cases,  equally  with  the  fs85,°92. 


2518 


WITNESSES  AND  EVIDENCE. 


[Chap.  233. 


1894,  317, 
R.  L.  113, 
1908,  590, 
§§41,69. 
1918,98. 


i  49.  originals  thereof,  if  there  is  annexed  to  such  copies  an  affidavit,  taken  4 

'    "  before  a  clerk  of  a  court  of  record  or  notary  public,  under  the  seal  of  5 

such  court  or  notary,  stating  that  the  affiant  is  the  officer  having  charge  6 

of  the  original  records,  books  and  accounts,  and  that  the  copy  is  correct  7 

and  is  full  so  far  as  it  relates  to  the  subject  matter  therein  mentioned.  8 


Entries  in 
books  of 
account. 
1913,  288. 

217  Mass.  613. 

218  Mass.  205. 
223  Mass.  162. 
227  Mass.  138. 


Section  78.  An  entry  in  an  account  kept  in  a  book  or  by  a  card  1 
system  or  by  any  other  system  of  keeping  accounts  shall  not  be  inadmis-  2 
sible  in  any  civil  proceeding  as  evidence  of  the  facts  therein  stated  because  3 
it  is  transcribed  or  because  it  is  hearsay  or  self-serving,  if  the  court  finds  4 
that  the  entry  was  made  in  good  faith  in  the  regular  course  of  business  5 
and  before  the  beginning  of  the  civil  proceeding  aforesaid.  The  court,  6 
in  its  discretion,  before  admitting  such  entry  in  evidence,  may,  to  such  7 
extent  as  it  deems  practicable  or  desirable  but  to  no  greater  extent  than  8 
the  law  required  before  April  eleventh,  nineteen  hundred  and  thirteen,  9 
require  the  party  offering  the  same  to  produce  and  offer  in  e\'idence  the  10 
original  entry,  writing,  document  or  account,  or  any  other  from  which  11 
the  entry  offered  or  the  facts  therein  stated  were  transcribed  or  taken,  12 
and  to  call  as  his  witness  any  person  who  made  the  entry  offered  or  the  13 
original  or  any  other  entry,  writing,  document  or  account  from  which  14 
the  entry  offered  or  the  facts  therein  stated  were  transcribed  or  taken,  15 
or  who  has  personal  knowledge  of  the  facts  stated  in  the  entry  offered.       16 


Recorda  of 

hospitals. 
1905,  330,  §  2. 
1908,  269. 
1912,  442,  §  2. 
202  Mass.  359. 
225  Mass.  521. 
234  Mass.  480. 
236  Mass.  439. 
3  Op.  A.  G. 
581. 


Stenographio 
transcripts. 
1894,  424,  §  9. 
1890,  459,  §  7. 
R.  L.  175,  §  68. 
207  Mass.  390. 
222  Mass.  129. 


Section  79.  Records  kept  by  hospitals  under  section  seventy  of 
chapter  one  hundred  and  eleven  shall  be  admissible  as  evidence  in  the 
courts  of  the  commonwealth  so  far  as  such  records  relate  to  the  treat- 
ment and  medical  history  of  such  cases;  but  nothing  therein  contained 
shall  be  admissible  as  evidence  which  has  reference  to  the  question  of 
liability. 

stenographic  transcripts. 

Section  80.  Transcripts  from  stenographic  notes  duly  taken  in  the 
superior  court  under  the  authority  of  law,  when  verified  by  the  certificate 
of  the  official  stenographer  or  assistant  taking  them,  shall  be  admissible 
as  evidence  of  testimony  given  whenever  proof  of  such  testimony  is  other- 
wise competent. 

REFERENCES. 

Witnesses  before  courts-martial,  etc.,  Chap.  33,  §§  168,  175,  249,  2,53. 

Witnesses  before  boards  of  registration  in  medicine,  etc.,  Chap.  112,  §  62. 

Witnesses  before  the  general  court.  Chap.  3,  §§  27-29,  38. 

Witnesses  before  supervisor,  Chap.  7,  §  14. 

Issuing  of  summonses  to  witnesses  in  criminal  cases  before  district  courts  and 
trial  justices.  Chap.  218,  §  37. 

Witnesses  as  to  corrupt  influencing  of  agents  not  excused  because  testimony  would 
tend  to  incriminate.  Chap.  271,  §  39. 

Mental  conditions  of  witness.  Judge  may  request  commission  on  mental  diseases 
to  assign  a  member  of  staff,  etc.,  to  make  e.xamination.  Chap.  123,  §  99. 

Comment  on  failure  of  defendant  to  take  the  stand  or  offer  evidence  in  lower  court 
in  criminal  case,  Chap.  278,  §  23. 

Attestation  of  records  of  registers  of  deeds  and  probate,  Chap.  36,  §§  7,  17-19; 
Chap.  217,  §  1.5. 

Attestation  of  records  of  recorder  of  land  court.  Chap.  185,  §  9. 

Copies  of  records  of  division  of  animal  industry,  Chap.  129,  §  10. 

Admissibility  of  copies  of  hospital  records-  before  the  industrial  accident  board. 
Chap.  152,  §  20. 

For  the  purpose  of  proving  the  existence  of  a  nuisance  in  maintaining  a  place  of 
prostitution,  evidence  of  general  reputation  of  the  place  is  admissible,  Chap.  139,  §  9. 


Chap.  234.] 


JXIRIES. 


2519 


CHAPTER    234 

JURIES. 


Sect. 

obligation  to  serve,   and  lists. 

1.  Qualifications  and  exemptions. 

2.  To  serve,  when. 

3.  Limit  of  serrice  in  Suffolk. 

4.  Preparation  of  lists. 

5.  Printing   of  lists,   delivery   to    clerks, 

etc. 

6.  Revision  of  lists  in  cities. 

7.  Deposit  of  names  in  box. 

8.  Withdrawal  of  names. 

9.  Publication. 

VENIRES. 

10.  Writs  of  venire  facias. 

11.  Service. 

12.  Additional  venires. 

13.  Provisions  for  Dukes  county. 

14.  Provisions  for  Bristol. 

15.  Jurors    from    Nantucket    and    Dukes 

county. 

16.  Venires  in  Barnstable. 

DRAWING    AND    SUMMONING    OF    JURORS. 

17.  Drawing  of  jurors. 

18.  Drawing  of  jurors  in  cities. 

19.  Same  in  towns. 

20.  Return  of  names  to  box. 

21.  Endorsement  on  ballot. 

22.  Names  drawn  in  town  meeting. 

23.  Meetings  for  drawing  jurors. 


Sect. 

24.  Summoning 
venire. 


of   jurors    and    return    of 


.GENERAL    PROVISIONS. 

25.  Impanelling. 

26.  Same  in  capital  cases. 

27.  Talesmen. 

28.  Examination  of  jurors. 

29.  Peremptory  challenges. 

30.  Interest  not  to  disqualify,  when. 

31.  Objections,  when  made. 

32.  Irregularities. 

33.  Gratuities. 

34.  Jury  not   to   be   sent   out   more    than 

twice,  unless,  etc. 

35.  View  by  jury. 

PENALTIES. 

36.  Penalty  for  neglect  to  attend. 

37.  Penalty  for  improperly  putting  name 

on  jury  list. 

38.  Penalty  for  soUciting  placing  name  on 

jury  list. 

39.  Penalty  on  officers,  etc.,  for  neglect. 

40.  Penalty  in  certain  other  cases. 

41.  Penalty  for  fraud  in  drawing  jurors. 

SPECIAL    JURIES. 

42.  Special  juries  not  affected. 


OBLIG.VTION   TO    SERVE,   AND    LISTS. 

1  Section  1.     A  person  qualified  to  vote  for  representatives  to  tlie 

2  general  court  shall  be  liable  to  serve  as  a  juror,  except  that  the  following 

3  persons  shall  be  exempt: 

4  The  governor;    lieutenant  governor;   members  of  the  council;    state 

5  secretary;   members  and  officers  of  the  senate  and  house  of  representa- 

6  tives  during  a  session  of  the  general  court;    judges  and  justices  of  a 

7  court;    county  and  associate  commissioners;    clerks  of  courts  and  as- 

8  sistant  clerks  and  all  regularly  appointed  officers  of  the  courts  of  the 

9  United  States  and  of  the  commonwealth;    registers  of  probate  and 

10  insolvency;    registers  of  deeds;    sheriffs  and  their  deputies;    constables; 

11  marshals  of  the  United  States  and  their  deputies,  and  all  other  officers 

12  of  the  United  States;  attorneys  at  law;  settled  ministers  of  the  gospel; 

13  officers  of  colleges;   preceptors  and  teachers  of  incorporated  academies; 

14  registered  practicing  physicians  and  surgeons;  cashiers  of  incorporated 
1.5  banks;    constant  ferrymen;   persons  over  sixty-five  years  of  age;    mem- 

16  bers  of  the  volunteer  militia;    members  of  the  Ancient  and  Honorable 

17  Artillery  Company;    superintendents,  officers  and  assistants  employed 

18  in  or  about  a  state  hospital,  insane  hospital,  jail,  house  of  correction, 

19  state  industrial  school  or  state  prison;    keepers  of  lighthouses;    con- 


Qualifications 
and  exemp- 
tions. 

C.  L.  55,  §  2; 
14S.  §  4;  352. 
1784,7,  §§2,9. 
17S5,  42,  §  4. 
1802,92.  §  1. 

1807,  140,  §  1. 

1808,  25. 
1812,  141.  §  2. 
R.  S.  IS,  §  17; 
95,  §§  1-3. 
183S,  21. 
1849,  218.  §  8. 
1851,  204. 
1858,  93,  §  2. 
G.  S.  132, 

§§  1,2. 
1864,215. 
1874,  320,  §  17. 
P.  S.  170, 
§§1.2. 
1896.  427. 
R.  L.  176.  §  1. 
9  Mass.  107. 

19  Pick.  368. 

20  Pick.  1. 
121  Mass.  69, 
93 

14.3  Ma-ss.  130. 
163  Ma«3.  453. 


2520 


JURIES. 


[Chap.  234. 


ductors  and  engine  drivers  of  railroad  trains;  teachers  in  public  schools;  20 
enginemen  and  members  of  the  fire  department  of  Boston,  and  of  other  21 
cities  and  towns  in  which  such  exemption  has  been  made  by  vote  of  the  22 
city  council  or  the  inhabitants  of  the  town,  respectively.  23 


whe^"^'  Section  2.     A  person  attending  and  serving  as  a  juror  in  any  court 

c!  L  87]  §  5.  ill  pursuance  of  a  draft  shall  not  be  liable  to  be  drawn  or  to  so  serve 

1^^4-5. 24, 1 0.  again  within  three  years  after  the  termination  of  such  service,  except 

1749-60, 5,'  §  2.  in  Nantucket  and  Dukes  counties,  in  which  he  shall  be  so  liable  once  in 

1756-7,  13.  §  3. 

1759-60, 29,  §3.  every  two  years. 

1S02,  92.  §  5.  1825,  176.  §  1.  R.  L.  176.  §  2. 

1807.  140,  §§  1,  4,  5.  R.  S.  95,  §§  12,  38.  16  Mass.  220. 

1812.  141,  §2.  G.  S.  132,  §§3,  4.  8  Pick.  504. 

1824,  119,  §1.  P.  S.  170,  §§  3.  4. 


Limit  of 
service  in 
SuEfolk. 
1822.  13.  §  3. 
R.  S.  86.  §  7. 
G.  S.  132.  §  10. 
1873,  44. 


Section  3.     A  person  shall  not  serve  as  a  traverse  juror  in  Suffolk  1 

county  more  than  thirty  days  at  any  sitting  of  the  court,  except  to  2 

finish  a  case  commenced  within  that  time,  nor  in  the  trial  of  criminal  3 

cases  at  more  than  one  sitting  thereof  during  the  year.  4 

1879.  76.  R.  L.  176,  §  3.  1906,  257. 

P.  S.  170,  §  5.  1904,  307.  §  1.  128  Mass.  458. 


Preparation 
of  lists. 

1736-7. 10.  5  1. 
1741-2,  18. 
§§  1.4. 
1749-50,  5, 
§§1.4. 
1756-7,  13, 
§§  1,4. 
1759-60,29, 
§§1,4. 
1784,  7,  §  2. 
1802,92,  §  1. 
1807,  140,  §  1. 
1812,141,  §  2. 
1822,  13.  §  6. 
1824,119,  §  2. 
1825,  176,  §  2. 
R.  S.  95,  §§4, 
34. 

G.  S.  132,  §§6. 
21. 

1876,  207, 
P.  S.  170,  §1  6, 
23,  24. 
1891,131. 
1897,515.  §  1. 
R.  L.  176,  I  4. 
1907,348,  I  1. 
7  Met.  326. 
207  Mass.  259. 


Decision  in 
Boston  in  case 
of  dispute. 
1907,  348,  §  4. 


Removal  for 
failure  to 
comply. 
1907,  34S,  5  2. 


Section  4.  The  board  of  registrars  of  voters  in  cities,  the  board  of  1 
election  commissioners  in  Boston,  and  the  board  of  selectmen  in  towns  2 
shall  annually,  before  July  first,  prepare  a  list  of  such  inhabitants  of  the  3 
city  or  town,  of  good  moral  character,  of  sound  judgment  and  free  from  4 
all  legal  exceptions,  not  absolutely  exempt  from  jury  service,  as  they  5 
think  qualified  to  serve  as  jurors.  But  in  cities  the  board  shall  not  place  6 
the  name  of  any  person  on  said  list  until  after  having  fairly  and  fully  7 
investigated  by  inquiries  at  his  place  of  residence  and  business  or  efn-  8 
ployment,  or  by  other  means,  his  reputation,  character  and  fitness  for  9 
such  service.  The  chief  of  police  or  the  police  commissioner,  or  the  10 
officer  having  charge  of  the  police,  shall,  upon  request,  give  the  board  11 
all  possible  assistance  in  making  such  investigation.  Upon  request  of  12 
the  board,  or  any  member  thereof,  any  person  shall  answer  all  questions  13 
and  give  such  information  as  he  may  have  relating  to  the  character  or  14 
fitness  for  jury  service  of  any  person  concerning  whom  such  request  is  15 
made,  which  information  shall  be  confidential.  To  the  name  of  each  16 
juror  on  said  list  shall  be  appended  his  place  of  residence  and  of  busi-  17 
ness  or  occupation.  Such  list  shall  include  not  less  than  one  juror  for  18 
every  one  hundred  inhabitants,  nor  more  than  one  for  every  sixty  in-  19 
habitants,  according  to  the  latest  census,  state  or  national,  but  in  Nan-  20 
tucket  or  Dukes  county  it  may  include  one  for  every  thirty  inhabitants.  21 

In  Boston  if  any  question  concerning  the  preparation  of  such  list  22 
arises,  as  to  which  the  board  of  election  commissioners  are  equally  23 
divided,  it  shall  be  referred  to  the  chief  justice  of  the  municipal  court  of  24 
the  city  of  Boston,  or,  in  case  of  his  absence  or  disability,  to  the  senior  25 
justice  thereof,  and  his  decision  on  the  question  shall  be  final.  26 

Failure  by  a  registrar  of  voters  or  election  commissioner  to  comply  27 
with  the  requirements  of  this  section  shall  be  sufficient  ground  for  his  28 
removal  from  office.  29 


urts'de1i?Ly         SECTION  5.     Jury  Hsts  prepared  as  above  provided  shall  annually,  1 

ira^^^^io'"'     before  August  first,  be  printed  with  the  address  and  occupation  of  each  2 

§§  1.4.'    '        juror,  and  a  copy  thereof  shall  be  delivered  to  the  mayor  or  selectmen  3 
1741-2,  18.  1 1.  ■•         '                     '^•'                                                                             •' 


Chap.  234.]  jukies.  2521 

4  and  to  the  clerk  of  the  city  or  town  to  which  such  list  relates,  and  to  1749-50,5, 

5  the  clerks  and  assistant  clerks  of  the  supreme  judicial  and  superior  1759-60,29, 

6  courts  in  the  county  where  such  city  or  town  is  situated,  to  be  kept  by  ff^',  7,  j  2. 

7  said  clerks  and  assistant  clerks  for  the  use  of  said  courts. 

ISO2,  92.  §  1.  1856.  125.  1894,  514.  §  2. 

1807.  140,  §  1.  G.  S.  132,  §1  7,  21.  1897,615,12. 

1812.141,5  2.  1876,207.  R.  L.  176.  §  5. 

R.  S.  95.  §  5.  P.  S.  170,  §§  7,  23,  24.  1907.  348.  5  5. 

1855, 167.  1888, 133.  207  Mass.  259. 

1  Section  6.     If  a  list  prepared  as  provided  in  this  chapter  includes  Revision  of 

2  less  than  one  juror  for  every  one  hundred  inhabitants  of  a  city,  said  isss!"!.?!"'^' 

3  registrars  of  voters  or  board  of  election  commissioners  shall  prepare  n^l\ l-f,]  1 1\ 

4  and  submit  as  aforesaid  a  further  list  and  like  proceedings  shall  be  had  ^^°^'  ^''^'  ^  ®- 

5  as  in  the  case  of  the  original  list,  until  the  required  number  of  jurors  is 

6  obtained. 

1  Section  7.     The  aldermen  or  selectmen  shall  cause  the  names  on  Deposit  of 

2  the  list  as  completed  to  be  ■nTitten  each  on  a  separate  ballot  and  shall  mS^7"io°i'i. 

3  roll  or  fold  the  ballots  so  as  to  resemble  each  other  as  much  as  possible  Ifl't  ^*' 

4  and  so  that  the  name  written  thereon  shall  not  be  visible  on  the  outside,  jj^i*,"!."'  ^' 

5  and  shall  place  the  ballots  in  a  box  kept  by  the  city  or  town  clerk  for  51^^"^'  ^^^ 

6  that  purpose. 

1759-60,29.  §1.      1802,92.5  1.        G.  S.  132.  §  8.        1897.  515.  §  5. 
1784,  7.  §  2.         1812.  141.  §  2.        1876.  207.  R.  L.  176,  §  7. 

1793,  63,  §4.        R.  S.  96,  §6.        P.  S.  170,  |§  8, 25.     1907,348,17. 

1  Section  8.     If  a  person  whose  name  has  been  so  placed  in  the  jury  withdrawal 

2  box  is  convicted  of  a  scandalous  crime  or  is  guilty  of  gross  immorality,  i7s'4,'7r§  2. 

3  or  is  found  by  the  justice  holding  court  to  be  unqualified  or  unfit  to  iso?!  i4b,S'2. 

4  serve  as  a  jm-or,  he  may  be  relieved  by  said  justice  from  sitting  in  any  §;  §;  ?t2,\'^9 

5  case,  or  liis  name  ordered  by  the  justice  to  be  stricken  from  the  jury  list.   J^^j  y°^  |^ 

R.  L.  176,  I  8.  1907,  348.  |  S. 


1  Section  9.    The  jury  lists  in  cities  shall  be  published  as  a  public  Publication. 

2  document,  with  the  address  and  occupation  of  each  juror;  and  in  towns,  i897;si5!  |4.' 

3  the  list  with  the  occupation  of  each  juror  shall  be  published  in  the  annual  ^'  ^'  ^^^'  ^  ^' 

4  town  report. 

venires. 

1  Section  10.     The  clerks  of  the  supreme  judicial  and  superior  courts  writs  of 

2  shall,  before  each  sitting  and  at  such  other  times  as  the  respective  courts  a "i.'^'srrri' 

3  may  order,  issue  writs  of  venire  facias  for  jurors,  requiring  their  at-  §'4?2^'§'4'/' 

4  tendance  on  such  day  of  the  sitting  as  the  court  may  order.     The  1^1^%  jg  .g 

5  number  of  jurors  requhed  by  such  writs  shall  be  apportioned  among  the  JJi?-S°\5'  |  ?• 

6  cities  and  towns,  as  nearly  as  may  be,  according  to  their  respective  J^^g-eo. 

7  populations. 


29.  §  5. 


1784.  7.  §  1.  1820.  79,  §  8.  P.  S.  170.  §§  10,  11. 

1807.  140.  §  3.  R.  S.  95.  §§  13, 14.         R.  L.  170.  §  10. 

1817,  63,  §3.  G.  S.  132,  §§  10,  11.         180  Mass.  492. 

1  Section  11.    The  venires  shall  be  delivered  to  the  sheriff  of  the  Service. 

2  county  to  be  transmitted  by  him  to  a  constable  in  each  of  the  cities  §§i.'2. ' 

3  and  towns  to  which  they  are  respectively  issued,  who  shall  forthwith  legglnoo.' iV' 

4  serve  them  in  cities  on  the  board  authorized  to  draw  jurors  and  in  towns  1*^1'  ^  *'■ 

5  on  the  selectmen  and  town  clerk.  1741-2,  is,  §  5.  1749-50. 5,  §  5. 

1756-7.13.5  5.  1807,  140,  §4.  P.  S.  170.  §§  12,  2S. 

1759-60.  29.  §  5.  1822.  13.  1897.  515.  §  7. 

1784,4.  §§  1,2;  7, 111,8.  R.  S.  95.  §§  15,  33.  R.  L.  176,  i  11. 

1802,  92,  §  2.  G.  S.  132,  §J  12,  22.  189  Mass.  457. 


2522 


JURIES. 


[Chap.  234. 


Add  itional 
venires. 
1713-4,5. 
1737-8,  20. 
1741-2,  18, 
1749-50.  5, 


Section  12.    Either  court  may  issue  venires  for  additional  jurors  1 

wlien  necessary  for  the  convenient  despatch   of  its  business.     They  2 

shall  be  served  and  returned,  and  the  jurors  required  to  attend  on'such  3 

1756-7, 13,  Is.  days,  as  tlie  court  orders.               1759-00,29,58.               1807,  uo,  §7.  4 


R.  S.  95,  §  IS. 


G.  .S.  132,  §  13. 


P.  S.  170,  §  13. 


R.  L.  176,  §  12. 


Pro\'ision9  for 
Dukes  county. 
1852,  75. 
G.  S.  132,  §  14. 
P,  S.  170,  §  14. 
R.  L.  176,  §  13. 


Provisions  for 
Bristol. 
1878,151,  §3. 
P.  S.  170,  §  15. 
R.  L.  176,  §  14. 


Jurors  from 
Nantucket 
and  Dukes 
county. 
1878,  151,  §  3. 
P.  S.  170,  §  16. 
1891,379,  §  1. 
R.  L.  176,  I  15. 


Section  13.     If  a  case  is  pending  in  the  superior  court  for  Dukes  1 

county,  in  whicli  the  inhabitants  of  a  towTi  in  said  county  are  disquali-  2 

fied  from  serving  as  jurors,  a  justice  of  the  court  may  order  the  clerk  3 

thereof  to  issue  ■RTits  of  venire  facias  for  a  sufficient  number  of  jurors  to  4 

try  such  case,  from  any  town  whose  inhabitants  are  not  so  disqualified.  5 

Section  14.     At  the  sittings  of  the  supreme  judicial  court  in  Bristol  1 

county  for  which  jurors  are  summoned  to  attend,  one  or  more  jurors  2 

from  Nantucket  county  and  at  least  four  from  Didces  county  shall  be  3 

summoned,  the  venires  for  which  shall  be  issued  by  the  clerk  of  the  4 

courts  for  Bristol  county.    The  cost  of  their  travel  and  attendance  shall  5 

be  paid  by  the  counties  from  which  they  are  summoned.  (> 

Section  15.     For  the  trial  of  an  indictment  found  and  returned  in  1 

Nantucket  or  Dukes  county  for  a  capital  crime,  such  number  of  jurors  2 

as  a  justice  of  the  superior  court  may  order  shall  be  summoned  from  3 

said  counties,  respectively,  and  the  cost  of  their  travel  and  attendance  4 

shall  be  paid  by  the  counties  from  which  they  are  summoned.  5 


Venires  in 
Barnstable, 
1889,  173. 
R.  L.  176,  5  16. 


Section  16.    No  venires  for  the  drawing  and  simamoning  of  jurors  I 

for  the  sitting  of  the  supreme  judicial  comt  for  Barnstable  county  shall  2 

be  issued  unless  at  the  time  for  their  issue  there  shall  be  one  or  more  3 

cases  to  be  tried  thereat  by  jury.  4 


Drawing  of 

jurors. 

1807, 

,  139,  §  5. 

R.  S. 

95,  §  S. 

Drawing  of 

jurors  in 

cities 

1822, 

13,  §  5. 

R.S. 

9iS,  5  35. 

G.S. 

132,  §  22. 

1876, 

207. 

P.S. 

170.  §  25. 

1894, 

514,  §  1. 

1897, 

51.5,  §  7. 

R.L. 

17G,  §  IS. 

DRAWING   .AND   SUMMONING   OF  JURORS. 

Section  17.    All  jurors  shall  be  selected  by  drawing  ballots  from  the     1 


jury  box. 

1897,  515,  §  7, 


G.  S.  132,  §  15. 
R.  L.  176.  §  17. 


P,  S.  170,  §  17 
1919,  333,  §  19. 


1920,  2. 


Section  18.  If  jurors  are  to  be  drawn  in  a  city,  the  mayor  and 
city  clerk  shall  meet  with  the  aldermen  at  its  regular  place  of  meeting. 
The  ballots  in  the  jury  box  shall  be  shaken  and  mixed  and  one  of  the 
aldermen,  designated  by  the  mayor,  shall,  without  seeing  the  names 
written  thereon,  openly  draw  a  niunber  of  ballots  equal  to  the  number  of 
jiuors  required.  He  shall  announce  clearly  and  distinctly  the  names  of 
the  jurors  so  drawn,  and  shall  then  hand  the  ballots  drawn  by  him  to 
the  mayor,  who  shall  examine  and  verify  them.  The  mayor  shall  then 
hand  such  ballots  to  the  city  clerk,  who  shall  announce  clearly  and 
distinctly  the  names  upon  the  ballots  and  return  the  same  to  the  jury  10 
box,  after  making  the  endorsements  thereon  required  by  law,  and  the  11 
names  so  drawn  shall  be  recorded  as  part  of  the  proceedings  and  shall  12 
be  published  if  and  when  the  proceedings  are  published  officially.  In  13 
the  absence  of  the  mayor,  the  chahman  or  president  of  the  board  of  14 
aldermen  shall  perform  the  duties  required  of  the  mayor  by  this  section.  15 


Same  in 
towns. 

1741^2  IS  1 2  clerk  and  selectmen  shall  meet  at  the  clerk's  office  or  at  some  other 


Section  19.     \'\Tien  jurors  are  to  be  drawn  in  a  town,   the  town     1 


Chap.  234.]  jxjeies.  2523 

3  public  place  appointed  for  the  purpose,  and,  if  the  clerk  is  absent,  the  1749-50, 5,  §  2. 

4  selectmen  may  proceed  without  him.    The  ballots  in  the  jury  box  shall  1759^60,^^'  ^  ^' 

5  be  siiaken  and  mi.xed  and  one  of  the  selectmen,  without  seeing  the  names  ngf,  7.  §  4 

6  written  thereon,  shall  openly  draw  therefrom  a  nmnber  of  ballots  equal  Jso^'isqS's 

7  to  the  number  of  jurors  required. 

R.  S.  95,  §  9.  G.  S.  132,  §  16.  P.  S.  170,  §  18.  R.  L.  176,  §  19. 

1  Section  20.     If  a  person  drawn  as  provided  in  the  two  preceding  Return  ot 

2  sections  is  exempt  or  unable  by  reason  of  illness  or  absence  from  home  1736-7,  lo.Ti. 

3  to  attend  as  a  juror,  or  has  so  served  in  any  court  within  the  time  pro-  nssly^ia,'  1 2. 

4  vided  in  section  two,  his  name  shall  thereupon  be  retm-ned  to  the  box  29f§~2°' 

5  and  another  drawn. 

1784,  7,  §  4.  R.  S.  95.  «  9,  35.  1897,  515,  §  7. 

1793,  63,  §  5.  G.  S.  132,  |§  16,  22.  R.  L.  176,  §  20. 

1807,  139,  §  5.  P.  S.  170,  §§  18,  25.         171  Masa.  459. 

1  Section  21.     If  a  person  is  drawn  and  returned  to  serve  as  a  juror  Endorsement 

2  in  a  court,  the  selectmen  or  the  city  clerk,  respectively,  shall  endorse  i74i-2°i'8,  §  2. 

3  on  the  ballot  the  date  of  the  draft  and  return  it  to  the  box;   and  when  nssly^is;  1 1; 

4  there  is  a  revision  and  renewal  of  the  ballots  in  the  box,  the  date  of  all  29°§"2°' 

5  the  drafts  made  within  the  time  provided  in  section  two  shall  be  trans-  \l^*-  ^^§|  f  '■ 

6  ferred  to  the  new  ballots. 

1807.  139,  §  6.  G.S.  132,  §§  17,  22.  1897,  615,  §  7. 

R.  S.  95,  §§  11,  35.  P.  S.  170,  §§  19,  25.  R.  L.  176,  §  21. 

1  Section  22.     If  a  town  at  a  meeting  votes  that  drafts  for  jurors  shall  ,^\o^n'^''"" 

2  be  made  in  open  town  meeting,  they  shall  be  so  made  by  the  selectmen  "//^gg  5    2 

3  in  the  manner  provided  in  the  tliree  preceding  sections.    When  in  such  1756-7,  is!  §  3. 

4  town  a  \enire  is  served  upon  the  selectmen,  they  shall  cause  a  town  i784, 7,  m.' 

5  meeting  to  be  notified  and  warned  for  the  purpose  in  the  maimer  ordered  iso7,'  139,  §§4, 

6  by  the  town  or  otherwise  provided  by  law.  ^'  ^^' 

R.  S.  95,  §§  10,  15.  G.S.  132,  §18.  P.  S.  170,  §  20.  R.  L.  176,  §22. 

1  Section  23.     The  meeting  for  drawing  jurors  shall  be  not  less  than  Meetings  for 

2  seven  nor  more  than  twenty-one  days  before  the  day  when  the  jurors  jiI?ms°^ 

3  are  required  to  attend.  1741-2,  is,  §  5.  1749-50, 5,  §  s. 

1758-7,  13.  §  5.  1807,  139,  §4.  P.  S.  170,  §§  21,  25. 

1759-60,  29,  §  5.  R,  S.  95,  §§  16,  35.  1897,  515,  §  7. 

1784,  7,  §  5.  G.  S.  132,  §§  19,  22.         R.  L.  176,  §  23. 

1  Section  24.     The  constable  shall,  four  days  at  least  before  the  time  Summoning 

2  when  the  jurors  are  required  to  attend,  summon  each  person  who  is  returnS''" 

3  drawn,  by  reading  to  him  the  venire  with  the  endorsement  thereon  of  1736-7, 10,  §  2. 

4  his  having  been  drawn,  or  by  leaving  at  his  place  of  abode  a  written  irtglsb,'!,'!!; 

5  notice  of  his  having  been  drawn  and  of  the  tmie  and  place  of  the  sitting  }7t^eo'29\1i 

6  of  the  court  at  which  he  is  required  to  attend,  and  shall  make  a  return  i^s4,4,^§§  1, 

7  of  the  venire  with  his  doings  thereon  to  the  clerk  of  the  court,  before  1S07',  139.  §  a. 

8  the  sitting  of  the  court  by  which  it  was  issued. 

R.  S.  95,  §  17.  P.  S.  no,  5  22.  R.  L.  176,  §  24.  143  Mass.  80. 

G.  S.  132,  §  20.  1897,  515,  §  7.  13  Met.  316.  189  Mass.  457. 

GENER.\L   PROVISION.S. 

1  Section  2.5.     On  the  day  when  jurors  are  summoned  to  attend  at  inipaneiiing. 

2  court  for  the  trial  of  civil  or  criminal  cases,  except  capital  cases,  the  R.  s.'gs, ' 

^  ^  §§20,23. 

G.S.  132, 


3  clerk  of  the  court  shall  cause  the  name,  place  of  abode  and  occupation 

4  of  each  person  so  summoned  to  be  WTitten  on  separate  ballots,  sub-  il8^i^'3oo'. 


23,  25,  26. 


2524 


JURIES. 


[Ch-vp.  234. 


p.  S.  170, 
§126,28-31. 
1897,515.  §  S. 
R.  L.  176, 
§25. 

6  Met.  224. 
135  Mass.  521. 
203  Mass.  493. 
211  Mass.  150. 


stantially  of  uniform  size,  and  shall  cause  them  to  be  placed  in  a  box  5 
provided  therefor.  Wlien  a  case  is  ready  for  trial  the  clerk  in  open  6 
court,  after  shaking  the  ballots  thoroughly,  shall  draw  them  out  in  7 
succession  until  the  names  of  twelve  are  drawn  who  appear  and  are  8 
not  excused  or  set  aside.  The  twelve  men  so  dra^Ti  shall  be  duly  sworn  9 
and  impanelled  and  shall  be  the  jury  to  try  the  issue,  and  one  of  them  10 
shall  be  appointed  foreman  by  the  court.  The  ballots  containing  names  11 
of  the  jurors  so  sworn  shall  be  kept  apart  by  the  clerk  until  the  verdict  12 
of  such  jury  has  been  recorded  or  such  jury  has  been  discharged,  M'hen  13 
such  ballots  shall  be  returned  to  the  box.  If  a  case  is  ready  for  trial  14 
before  the  verdict  in  the  preceding  case  has  been  recorded  or  the  jury  15 
discharged,  the  court  may  order  a  jury  for  the  trial  of  such  issue  to  be  16 
impanelled  by  the  drawing  in  the  manner  aforesaid  of  ballots  from  17 
those  remaining  in  the  box.  18 


Same  in 
capital  cases, 
IS- 3.  308. 
PS.  170.  §3 
1897,  515,  5  ) 
R.  L.  176,  §  : 


Section  26.     If  a  jury  is  to  be  impanelled  for  the  trial  of  a  capital  1 

case,  tlie  clerk  of  the  court  shall  cause  the  name  of  each  juror  sum-  2 

moned  therein  to  be  ^Titten  on  a  separate  ballot  and  each  ballot  to  be  3 

folded  uniformly  in  such  manner  that  the  name  written  thereon  shall  4 

not  be  visible,  and  shall  cause  such  ballots  to  be  placed  in  a  box  pro-  5 

vided  therefor.     He  shall  then  in  open  court  draw  the  ballots  in  sue-  6 

cession  from  said  box,  and  the  twelve  persons  whose  names  are  upon  7 

the  ballots  first  drawn  and  who  are  not  excused  or  otherwise  set  aside,  8 

shall  be  sworn  as  the  jury  for  the  trial  of  the  case.  9 


Talesmen. 
1699-1700.  1, 
§4;  2,  §4; 
3.  §5. 
1784,  7.  §  6. 
1807,  140,  §  7. 
R.  S.  95, 
§§  24-26. 
G.  S.  132, 
§§  27,  28. 
P.  S.  170, 
H  33,  34. 
R.  L.  176,  §  27. 
6  Cush.  174. 


Section  27.     If,  by  challenge  or  otherwise,  a  sufficient  number  of  1 

jurors  duly  drawn  and  summoned  cannot  be  obtained  for  the  trial  of  2 

a  case,  the  court  shall  cause  jurors  to  be  returned  from  the  bystanders  3 

or  from  the  county  at  large,  to  complete  the  panel,  if  there  are  on  the  4 

jury  not  less  than  se\en  of  the  jurors  who  were  originally  drawn  and  5 

summoned  as  before  provided.     The  jurors  from  the  bystanders  shall  6 

be  returned  by  the  sheriff  or  his  deputy  or  by  a  disinterested  person  7 

appointed  therefor  by  the  court,  and  shall  be  such  as  are  qualified  and  8 

liable  to  be  drawn  as  jurors.  9 


Examination 
of  jurors. 

B.  L.  30. 

C.  L.  152.  §  3. 
1736-7,  10.  §  5. 
1741-2.  18.  §  7. 
1749-50.  5.  §  7. 
1756-7.  13,  §  7. 
1759-60, 

29,  §  7. 
1784,  7.  §  8. 
1807.  139,  §  9. 
R.  S.  95,  §  27. 
G.  S.  132,  §  29. 
P.  S.  170,  §  35. 


Section  28.     Upon  motion  of  either  party,  the  court  shall,  or  the  1 

parties  or  their  attorneys  may  under  the  direction  of  the  court,  examine  2 

on  oath  a  person  who  is  called  as  a  juror  therein,  to  learn  whether  he  is  3 

related  to  either  party  or  has  any  interest  in  the  case,  or  has  expressed  4 

or  formed  an  opinion,  or  is  sensible  of  any  bias  or  prejudice,  therein;  5 

and  the  objecting  party  may  introduce  other  competent  evidence  in  6 

support  of  the  objection.     If  the  court  finds  that  the  juror  does  not  7 

stand  indifferent  in  the  case,  another  shall  be  called  in  his  stead.  8 


1887,  149. 
R.  L.  176.  §  28. 
16  Pick.  153. 
13  Met.  120. 

5  Cush.  295. 

6  Cush.  174. 
4  Gray,  18. 


6  Grav,  343. 
113  Aiass.  297. 
118  Mass.  531. 

139  Mass.  56,  315. 

140  Mass.  425. 
143  Mass.  130. 
145  Mass.  242. 


157  Mass.  ISO,  510. 
159  Mass.  56. 
209  Mass.  396. 
212  Mass.  438. 
215  Mass.  143. 
219  Mass.  1. 
231  Mass.  10. 


Peremptory 
challenges. 
1776-7,  32, 
§  13. 

1795,  45,  §  3. 
R.  S.  137, 
§§  3-5. 


Section  29.     Upon  the  trial  of  an  indictment  for  a  crime  punishable  1 

by  death  or  imprisonment  for  life,  each  defendant  shall  be  entitled  to  2 

twenty-two  peremptory  challenges  of  the  jurors  called  to  try  the  case,  3 

and  in  other  criminal  cases  each  defendant  shall  be  entitled  to  two  4 


CfL-vp.  234.]  JURIES.  2525 

5  such  challenges.     In  every  criminal  case  the  commonwealth  shall  be  g.  s.  172. 

6  entitled  to  as  many  such  challenges  as  equal  the  whole  number  to  which  1862,84.  §  1 

7  all  the  defendants  in  the  case  are  entitled.     In  a  civil  case  each  party  isog^isi; 

8  shall  be  entitled  to  two  such  challenges.     Peremptory  challenges  shall  }|75;f67; 

9  be  made  before  the  commencement  of  the  trial  and  may  be  made  after  h  fg^™'.  214 

10  the  determination  that  a  person  called  to  serve  as  a  jiu-or  stands  in-  §§  5, 6. 

11  different  in  the  case.  is95, 120. 

R.  L.  176,  §  29.  Ill  Mass.  439.  203  Mass.  493. 

11  Allen,  668.  124  Mass.  32.  207  Mass.  259. 

103  Mass.  412.  152  Mass.  397.  208  Mass.  202. 

107  Mass.  216.  202  Mass.  535.  219  Mass.  1. 

1  Section  30.     In  indictments  and  penal  actions  for  the  recovery  of  a  interest  not 

2  forfeiture,  it  shall  not  be  a  cause  of  challenge  to  a  juror  that  he  is  liable  when.""" '  ^' 

3  to  pay  taxes  in  a  county,  city  or  town  which  may  be  benefited  by  such  §;  1;  ^li.^^lb. 

4  recovery.  P-  s.  i70.  §  38. 

R.  L.  176,  §  30.  9  Met.  572.  2  Allen,  402. 

5  Mass.  90.  1  Gray,  472.  147  Mass.  585. 

1  Section  31.    If  a  party  knows  of  an  objection  to  a  juror  in  time  to  objections, 

2  propose  it  before  the  trial  and  omits  so  to  do,  he  shall  not  afterward  r.s°95!'§''29. 

3  make  the  same  objection,  unless  by  leave  of  the  court. 

G.S.  132,  §31.  1  Pick.  38.  2  Gray,  281. 

P.  S.  170.  §39.  .21  Pick,  456.  114  Mass,  103. 

R.  L.  176,  §  31.  2  Met.  558. 

1  Section  32.     No  irregularity  in  a  writ  of  venire  facias  or  in  the  draw-  irregularities. 

2  ing,  summoning,  returning  or  impanelling  of  jurors  shall  be  sufficient  a.  s.  132,  §  32. 

3  to  set  aside  a  verdict,  unless  the  objecting  party  has  been  injured  thereby  r.  l.V7'6,V32. 

4  or  unless  the  objection  was  made  before  the  verdict.  2  Pick.  550.  ^  ^"=''-  ^*'  ^^'^• 

9  Met.  572.  121  Mass.  93.  139  Mass.  381.  203  Mass.  493. 

1  Section  33.     If  either  party  to  a  case  at  the  sitting  at  which  a  ver-  Gratuities. 

2  diet  is  returned,  either  before  or  after  the  trial,  gives  to  any  of  the  jurors  r.  s.'os,  §  31. ' 

3  who  try  the  case  anything  by  way  of  treat  or  gratuity,  the  court  may,  p.'s.i7o,'§4i.' 

4  upon  motion  of  the  adverse  party,  set  aside  the  verdict  and  award  a  new  2  AUenlssl.^^' 

5  trial. 

1  Section  34.     If  a  jury,  after  due  and  thorough  deliberation,  return  Jury  not  to 

2  to  court  without  ha^•ing  agreed  on  a  verdict,  the  court  may  state  anew  more  than 

3  the  evidence  or  any  part  thereof,  explain  to  them  anew  the  law  applicable  etc.'"'' ""  ''^^' 

4  to  the  case  and  send  them  out  for  further  deliberation;    but  if  they  R.f.'9.5,^§y^' 

5  return  a  second  time  without  having  agreed  on  a  verdict,  they  shall  pfiyo'lll' 

6  not  be  sent  out  again  without  their  own  consent,  unless  they  ask  from  ?j4i/"3*37^  ^*' 

7  the  court  some  further  explanation  of  the  law.  13  Alien,  4ii. 

no  Mass.  70.  116  Mass.  37.  367.  123  Mass.  254. 

115  Mass.  567.  122  Mass.  477.  164  Mass.  440. 

1  Section  35.    The  court  may,  upon  motion,  allow  the  jury  in  a  civil  J^^y^'^ 

2  case  to  view  the  premises  or  place  in  question  or  any  property,  matter  J^gf^y  Ig 

3  or  thing  relative  to  the  case  if  the  party  making  the  motion  advances  iso7,'i39,§8. 

4  an  amount  sufficient  to  defray  the  expenses  of  the  jury  and  the  officers  i37^'§  16. 

5  who  attend  them  in  taking  the  view,  which  shall  be  taxed  as  costs,  if  i72'!'§ o. ' 

6  the  party  who  advanced  them  prevails.    The  court  may  order  a  view  by  214^  §  ii'.  ^  *^" 

7  a  jury  impanelled  to  try  a  criminal  case.  R.  l.  i76,  §  35. 

5  Cush.  295.  157  Mass.  579.  186  Mass.  582. 

134  Mass.  499.  174  Mass.  245.  194  Mass.  250. 


2526 


JURIES. 


[Chap.  234. 


Penalty  for 
neglect  to 
attend. 
C.  L.  55.  §  2. 
1694-5, 24, 
§§2-4. 
1698.  13. 
1741-2.  IS, § 
1749-50,  5,  § 


PENALTIES. 

Section  36.    A  person  duly  drawn  and  summoned  as  a  juror  in  a  1 

court  who  neglects  to  attend  without  sufficient  cause  shall  be  punished  2 

by  a  fine  of  not  more  than  forty  dollars,  to  be  imposed  by  the  court  3 

to  which  the  juror  was  summoned,  to  the  use  of  the  county  where  the  4 

offence  is  committed.  5 


175R-7,  13,  §  6. 
1759-00.29,  §6. 
17S4,4,  §§  1,2;  7,  §7. 


1S02,  92,  §  3. 
1S07,  139.  §  17. 
R.  S.  95,  §  19. 


G.  S.  132,  §  36. 
P.  S.  170,  §  44. 
R.  L.  176,  §  36. 


Penalty  for 
improperly 
putting  name 
on  jury  list. 
1907,  34S,  §  2. 


Section  37.     '\Mioever,  being  a  registrar  of  voters  or  an  election  1 

commissioner,  shall  put  or  cause  to  be  put  upon  the  jury  list  the  name  2 

of  any  person  for  any  reason  other  than  his  judgment  in  good  faith  of  3 

the  qualifications  and  fitness  of  such  person  for  such  jury  service  shall  4 

be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  imprison-  5 

ment  in  the  jail  or  house  of  correction  for  not  more  than  one  year.  6 


Sidting'"^  Section  38.     Wioever  solicits  or  requests  an  election  commissioner  1 

oif fi?v  fist"^     '^^  registrar  of  voters  to  put  his  or  any  other  name  upon  a  jury  list  shall  2 

1907, 348,  §  3.    be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  or  imprison-  3 

ment  in  the  jail  or  house  of  correction  for  not  more  than  one  year.  4 


Penalty  on 
officers,  etc., 
for  neglect. 
1694-5,  24, 
§§  1,4. 
1699-1700,  1, 
§4;  2,  §4; 
3,5  5. 

1784,  4,  §§  1, 
2:  7,  §§3,  7. 
1807, 139,  §  17. 


Section  39.     If,  by  reason  of  the  neglect  of  a  person  upon  whom  1 

any  duty  is  imposed  by  tliis  chapter,  jurors  are  not  duly  drawn  and  2 

summoned  to  attend  a  court,  he  shall  be  punished  by  a  fine  of  not  more  3 

than  twenty  dollars,  to  be  imposed  by  the  court  to  which  they  should  4 

have  been  summoned,  to  the  use  of  the  county  where  the  offence  is  5 

committed.  6 


R.  S.  95,  §  39. 


G.  S.  132,  §  37. 


P.  S.  170.  §  45. 


R.  L.  170,  §  37 


Penalty  in 

certain  other 

cases. 

R.  S.  95,  §  40. 

G.  S.  132,  §  38. 

P.  S.  170,  §  46. 

R.  L.  176, 1  3S. 


Section  40.     If  such  neglect  occurs  with  regard  to  jurors  required  to  1 

serve  on  any  occasion  other  than  in  the  supreme  judicial  or  superior  2 

court,  the  officer  before  whom  the  jurors  were  required  to  appear  shall  3 

report  the  fact  to  the  superior  court  for  the  same  county,  which,  after  4 

an  examination  and  a  hearing,  may  impose  the  fine  provided  by  the  5 

preceding  section.  6 


Penalty  for 
fraud  in  draw- 
ing jurors. 
1793,  63,  §  5. 
1807,  139.  §  17. 
R.  S.  95.  §41. 
G.  S.  132,  §  39. 
P.  S.  170,  §  47. 
1894,  514,  §  4. 
R.  L.  176,  §  39. 


Section  41.     Whoever  is  guilty  of  fraud  in  the  drawing  of  jurors,  1 

either  by  tampering  with  the  jury  box  previous  to  a  draft  or  in  draw-  2 

ing  a  juror,  or  in  returning  to  the  box  the  name  of  a  juror  lawfully  3 

drawn  out  and  drawing  or  substituting  another  in  his  stead,  or  in  strik-  4 

ing  a  name  from  the  jury  list,  or  in  any  other  way,  shall  be  punished  by  5 

a  fine  of  not  more  than  five  hundred  dollars.  6 


SPECL\L   JURIES. 


Special  juries 
not  affected. 

G  I' 132^*40    ^^y  officer  or  magistrate  to  summon  and   impanel   jurors  when   other-     2 
p.  s.  170,  §  48.   -j^rise  authorized 


Section  42.     This  chapter  shall  not  affect  the  power  and  duty  of     1 

R.  L.  176,  §  40.  3 


REFERENCE. 
Juror  not  to  be  disqualified  because  he  is  an  inhabitant  of  Boston,  Chap.  220,  §  10. 


Chap.  235.] 


JUDGMENT  AND  EXECUTION. 


2527 


CHAPTER    235 


JUDGMENT  AND   EXECUTION. 


Sect. 

1.  Entry  of  judgment. 

2.  Same  in  inferior  courts. 

3.  Same  in  summary  process. 

4.  Judgment  nunc  pro  tunc. 

5.  Assessment  of  damages  by  clerk. 

6.  Judgment  on  default. 

7.  Separate    executions    against   different 

defendants. 

8.  Interest  on  judgments,  etc. 

9.  Judgment  on  forfeiture  of  a  penalty. 

10.  Amount  of  execution   upon   judgment 

for  penal  sum. 

11.  Scire  facias  to  recover  further  damages. 

12.  Proceedings  in  actions  for  further  dam- 

ages. 

13.  Action  for  damages  instead  of  penalty. 

14.  Executions  in  actions  on  judgments. 

15.  Execution  if  action  in  erroneous  venue. 

16.  Execution  not  to  issue  within  twenty- 

four  hours. 

17.  Execution  to  issue  within  one  year. 

18.  Execution     of     district     court     valid 

where  directed. 

19.  Remedy  after  time  for  taking  execution. 

20.  Proceedings  after  ineffectual  le\T- 

21.  Proceedings  after  ineffectual   le'VT   on 

member  of  corporation. 

22.  Form  of  execution. 

23.  Return  of  execution. 

SPECIAL      JUDGMENTS     AGAINST     BANKRUPTS 
OB    INSOLVENTS. 

24.  Special  judgments  against  bankrupts  or 

insolvents. 

25.  Special  judgment  if  insolvent,  etc.,  has 

given   bond   to   dissolve   an   attach- 
ment. 

26.  Special    judgment    upon    bankruptcy, 

etc.,  of  petitioner  for  review. 

SET-OFF  OF   EXECUTIONS. 

27.  Set-off  of  executions. 

LEVY    OF    EXECUTION    AND    PERSONAL    PROP- 
ERTY   EXEMPT   THEREFROM. 

28.  Creditor  may  direct  mode  of  service. 

29.  Levy  on  land  and  personal  property. 


Sect. 

30.  Le\'y  on  property  of  a  corporation. 

31.  Property  liable  to  execution. 

32.  Current  coin. 

33.  Bank  notes. 

34.  Property  exempt  from  execution. 

35.  Indemnification  of  officer. 


SALE     OF     PERSONAL    PROPERTY     TAKEN    ON 
EXECUTION. 

36.  Sale  of  personal  property  on  execution. 

37.  Notice  of  sale. 

38.  Same,  if  value  exceeds  three  hundred 

dollars. 

39.  Adjournment  of  sale. 

40.  Adjournment  upon  injunction. 

41.  Re-sale. 

42.  Return    of    execution.      Liability    for 

fraud. 

43.  Disposition  of  proceeds  of  sale. 

44.  Disposition  among  two  or  more  cred- 

itors. 

45.  Disposition    upon    successive    attach- 

ments. 


I^VT   ON   THBMS   FOR   YEARS. 

46.  Levy  on  terms  for  years. 


SUSPENSION  OF   LEVY. 

47.  Suspension  of  levy. 

48.  Same  subject. 


DEATH,    ETC.,    OP    OFFICER   OR    PARTY   AFTER 
COMMENCEMENT   OF    LEVY    OR    SERVICE. 

49.  Death,  etc.,  of  officer  after  beginning  of 

levy  or  service. 

50.  Removal  of  officer,  etc.,  after  beginning 

of  levy. 

51.  Death  of  party  after  beginning  of  levy. 


PENALTY        ON       OFFICER        FOR       DETAINING 
MONEY    COLLECTED. 

52.  Penalty  for  detaining  money  collected. 


1  Section  1.    Judgments  in  civil  actions  and  proceedings  in  the  su-  Entry  of 

2  preme  judicial  court  shall  be  entered  on  motion  unless  the  court  by  r.'^s.'Tt!*!  i. 

3  general  or  special  order  othemise  orders.     Judgments  in  ci\il  actions  cfl.'i33,'§S"' 

4  and  proceedings  ripe  for  judgment  in  the  superior  court  shall,  unless  R-'L.\V7,Vi- 

5  the  court  by  general  or  special  order  otherwise  orders,  be  entered  by  {i^J^^^^'ss 

6  the  clerk  at  ten  o'clock  in  the  forenoon  on  the  first  Monday  of  each  los  Mass!  297. 


2528 


JUDGMENT  AND  EXECUTION, 


[Chap.  235. 


month,  or  on  the  following  day  if  said  Monday  is  a  legal  holiday,  unless     7 

212  Masa.  108.  8 


176  Mass.  48. 

204  Mass!  33i!   the  party  entitled  thereto  otherwise  requests  in  writing 


218  Mass.  463. 


219  Mass.  597. 


227  Mass.  46. 


231  Mass.  138. 


Same  in 
inferior  courts. 
1S'I7.  431. 
1898,  488. 
R.  L.  177,  §  2. 
221  Mass.  161. 


Section  2.     Judgment   in    civil    actions    and   proceedings    ripe   for  1 

judgment  in  district  courts  shall  be  entered  at  ten  o'clock  in  the  forenoon  2 

on  Friday  of  each  week,  but  if  a  legal  holiday  occurs  on  Friday,  at  ten  3 

o'clock  in  the  forenoon  of  the  Thursday  preceding;  or  it  may  be  entered  4 

at  any  time  in  a  case  ripe  for  judgment  upon  notice  and  motion.  5 


ma™p°oc"e^".        Section  3.     DistHct  courts  may  by  rule  establish  the  time  for  the     1 

r^^l!  177;  §  3.    entry  of  judgment  in  actions  of  summary  process  under  chapter  two    2 

hundred  and  thirty-nine  which  are  ripe  for  judgment.  3 


Judgment  nunc 
pro  tunc. 
1S42,  89,  I  2. 
G.  S.  115,  §  14; 
133,  §  7. 
P.  S.  1.53,  §  20; 
171,  §  7. 


Section  4.     Every  judgment,  order  or  decree  of  the  supreme  judicial  1 

or  superior  court  shall  bear  date  of  the  year,  month  and  day  when  en-  2 

tered;    but  the  court  may  order  it  to  be  entered  as  of  an  earlier  day  3 

than  that  of  entry.  4 


1885.  3S4,  §  13. 
R.  L.  177.  §  4. 
7  Mass.  393. 
12  Gush.  319. 


106  Mass.  339. 
116  Mass.  275. 
122  Mass.  176. 
128  Mass.  296. 


137  Mass.  221. 
155  Mass.  86. 
225  Mass.  392. 


Assessment  of 

damages  by 

clerk, 

R.  S.  97,  5  4. 

G.  S.  133,  §  4. 

P.  S.  171,  §4. 

R.  L.  177,  §  5. 


Section  5.     In  an  action  upon  a  promissory  note  or  other  contract  1 

where  the  amount  due  appears  to  be  undisputetl,  the  debt  or  damages  2 

may  be  ascertained  and  assessed  by  the  clerk  under  a  general  order  of  3 

the  court  or  by  special  reference  to  him.    The  judgment  in  either  case  4 

shall  be  entered  in  the  same  form  as  if  awarded  on  an  assessment  or  .5 

computation  made  by  the  court.  6 


Judgment  on 

default. 

R.  S.  100,  §  6. 

1851,  255,  §  1. 

G.  S.  133,  §  5. 

P.  S.  171,  §5. 

R.  L.  177,  §  6. 

12  Gush.  486. 

13  Allen,  217. 


Section  6.     In  an  action  against  two  or  more  defendants  upon  a  1 

contract  express  or  implied,  the  plaintiff  shall  be  entitled  to  judgment  2 

against  such  defendants  as  are  defaulted  and  against  those  who  upon  3 

trial  are  found  liable,  although  it  is  found  that  all  the  defendants  are  4 

not  jointly  liable.  121  Mass.  347.  5 


131  Mass.  397. 
164  Mass.  504. 
201  Mass.  451. 


205  Mass.  80. 
212  Mass.  392. 
214  Mass.  374. 


221  Masa.  259. 
231  Mass.  472. 
235  Masa.  301,  471. 


Separate  exe- 
cutions 
against  dif- 
ferent defend- 
ants. 

1851,  255,  §  2. 
G.  S.  133,  §  6. 
P.  S.  171,  §  6. 
R.  L.  177.  §  7. 


Section  7.     If  in  such  action  any  defendants  are  defaulted,  and  upon  1 

trial  any  of  the  others  are  found  liable,  the  court  shall  render  judgment  2 

both  against  those  defaulted  and  those  found  liable  for  the  debt  or  3 

damages,  with  costs  to  the  time  of  the  default,  and  against  those  who  4 

defend,  for  all  costs  which  accrue  after  the  default;  and  shall  issue  sep-  5 

arate  executions  on  such  judgment.  6 


Interest  on 
judgments,  etc. 
1847,  153. 
1849,  124. 
G.S.  133,  §  8. 
P.  S.  171,  §  8. 
R.  L.  177,  §  8. 
2  Allen,  502. 
6  Allen,  243. 
116  Mass.  196. 
136  Mass.  344. 
139  Mass.  360. 
159  Mass.  383. 
185  Mass.  4. 
191  Mass.  570. 
193  Mass.  257. 
207  Mass.  424. 
209  Mass.  388. 


Section  8.     When  judgment  is  made  up  upon  an  award  of  county  1 

commissioners,  a  committee  or  referees,  or  upon  the  report  of  an  auditor  2 

or  master  in  chancery,  or  upon  the  verdict  of  a  jury,  interest  shall  be  3 

computed  upon  the  amount  of  the  award,  report  or  verdict,  from  the  4 

time  when  made  to  the  time  of  making  up  the  judgment.    Every  judg-  5 

ment  for  the  payment  of  money  shall  bear  interest  from  the  day  of  its  6 

rendition.    The  warrant  or  execution  issued  on  a  judgment  for  the  pay-  7 

ment  of  money  shall  specify  the  day  upon  which  judgment  is  rendered,  8 

and  shall  require  the  collection  or  satisfaction  thereof  with  interest  from  9 

the  dav  of  its  rendition.                                    228  Mass.  i.  10 


ClL^P.  235.]  JUDGMENT  AND   EXECUTION.  2529 

1  Section  9.     If  in  an  action  for  a  breach  of  the  condition  of  a  bond,  Judgment  on 

lorieiture  oi 

2  or  to  recover  a  penalty  for  the  non-performance  oi  a  covenant,  contract  j„Ss°2*"^'s 

3  or  agreement,  it  is  found  that  the  condition  has  been  broken  or  the  us^e^i. 

4  penalty  forfeited,  judgment  shall  be  entered  for  the  penal  sum,  but  exe-  iras,  7?,  §  e. 

5  cation  shall  issue  only  as  provided  in  the  follo'wing  sections.  '  •  ^"^^  *  ^• 

G.  S.  133,  §9.  llGrav.  212.  98  Mass.  515.  185  Mass.  349,  582. 

P.  S.  171,  §  9.  12  Allen,  243.  lUO  TSIass.  191.  211  Mas.s.  22. 

R.  L.  177,  §  9.  97  Mass.  IS.  136  Mass.  226.  22S  Mass.  581. 

1  Section  10.     The  court  shall  award  an  execution  for  so  much  of  the  Amount  ot 

2  penal  sum  as  is  then  due  and  payable  in  equity  and  good  conscience  for  Judgment  for°" 

3  the  breach  of  the  condition  or  other  non-performance  of  the  contract.  i69s,'22r§i. 

4  The  amount  shall  be  determined  by  the  court,  unless  a  jury  trial  was  }J||;  ^^^  |  J; 

5  claimed  under  section  sixty  of  chapter  two  hundred  and  thirty-one  or  g- 1-  ^^o.  §  9^ 

6  is  ordered  by  the  court.  p.  s.  i71,  §  lo. 

R.  L.  177.  §  10.  100  Mass.  191.  148  Mass.  562.  206  Mass.  270. 

I  Mass.  10.  105  Mass.  44.  152  Mass.  568.  211  Mass.  22. 

7  Met.  116.  135  Mass.  591.  155  Mass.  203.  213  Mass.  437. 

13  Gray,  157.  136  Mass.  174,  226.  185  Mass.  349,  582.  215  Mass.  243. 

1  Section  11.     If  a  further  amount  after^vard  becomes  due  on  such  scire  facias 

rt    1  1  1  1  1    •       •  rv    1  •  1      •    ■  *"  recover  fur- 

2  bond  or  other  contract,  the  plaintiii,  his  executor  or  administrator  may  ther  damages. 

3  ha\'e  a  writ  of  scire  facias  on  the  judgment  from  the  court  where  it  iras,  77,  §  6. 

4  was  rendered  against  the  original  defendant,  his  executor,  administrator,  g^s!  ns.  §  11! 

5  heirs,  devisees  or  assigns,  stating  a  further  breach  of  the  contract  and  R.L.nV.Vu. 

6  summoning  the  adverse  party  to  show  cause  why  execution  should  not 

7  be  awarded  upon  the  judgment  for  the  damages  caused  by  such  further 

8  breach. 

1  Section  12.    The  amount  due  in  such  action  shall  be  determined  fc't^oM^fof /„"- 

2  and  execution  awarded  in  the  same  manner  as  in  the  original  action;  j^lg  "^j"? I*"^- 

3  and  such  proceedings  may  be  repeated  upon  further  breaches  until  the  R.  s.'ioo,  §  ii. 

4  penalty  is  exhausted.         G.  s.  133,  §  12.         p.  s.  ni.  §  12.         r.  l.  177,  §  12. 

1  Section  13.     The  four  preceding  sections  shall  not  prevent  a  person  Action  for  dam- 

2  from  bringing  an  action  for  the  breach  of  a  co\-enant  or  other  contract,  pfn3lt>^'"'  ° 

3  instead  of  suing  for  the  penalty  by  which  the  performance  of  the  cove-  r.°|.' io6,Vi2. 

4  nant  or  contract  was  secured. 

G.  S.  133,  5  13.  P.  S.  171,  §  13.  R.  L.  177,  J  13. 

1  Section  14.     If  a  judgment  is  rendered  for  the  plaintiff  by  a  court  in  Executions  in 

2  an  action  founded  on  a  judgment  rendered  by  a  different  court,  execu-  fudEmcnt". 

3  tion  shall  not  issue  until  the  plaintiff  files  with  the  court  rendering  the  R^i^'jyy  1 54 

4  judgment  in  the  later  action  a  transcript  of  the  record  of  the  judgment  i9i7.326. 

5  in  the  earlier  action  under  the  seal  of  the  court  rendering  it,  attested  by 

6  the  clerk  of  such  court. 

1  Section  15.     If  judgment  is  rendered  in  a  local  action  brought  in  an  Eiecutionif 

2  erroneous  venue,  the  court  shall  cause  its  writ  of  possession  or  other  neo'us'venue!°" 

3  writ  of  execution  to  be  directed  to  the  sheriff  of  the  proper  county.  I^^'e.^^^' 

1852,  312,  §  79.  P.  S.  171,  §  14.  102  Mass.  370. 

G.  S.  133,  §  14.  R.  L.  177,  §  15.  130  Mass.  335. 

1  Section  16.    No  execution  shall  issue  within  twenty-four  hours  after  Execution  not 

2  the  entry  of  judgment.  c.  l. 3,  §  9.  f°™t>-four''''' 

1701-2.  5.  §  10.  R.  S.  G7,  §  5.  R.  L.  177,  §  16.  liours. 

1783,  57,  f  1.  G.  S.  l.-iS,  §  15.  8  Met.  496. 

1784,  28.  I  15.  P.  S.  171,  §  15.  190  Mass.  497. 


2530  JUDGMENT  .\ND   EXECUTION.  [ChAP.  235. 

Sue"within°         Section  17.     An  original  execution  shall  not  issue  after  the  expira-  1 

i692-3!24,  §3.  t^o^  o^  •'"^  y^^^  ^^^^'^  *^^^  party  is  first  entitled  to  take  it  out;    and  an  2 

}I|J"|-22-j      alias  or  other  successive  execution  shall  not  issue  after  the  expiration  3 

R.  s.'97.'§6.'     of  five  years  from  the  return  day  of  that  which  preceded  it.    AHas  or  4 

G.  s.'i33,  §  18.  successive  executions  shall  be  of  full  force  and  effect  for  five  years  from  5 

R.L.  177,  §  18.  the  date  thereof  unless  satisfied  in  whole  or  discharged  by  law,  and  6 

iss^Mat'a.Sk     ^vithin  ten  days  after  satisfaction  or  discharge  as  aforesaid  they  shall  be  7 

returned  to  the  court  issuing  them.  S 

dlstrSt  °ou°rt         Section  18.     Executions  issued  by  a  district  court  may  be  served  and  1 

valid  where       shall  be  obcved  in  everv  countv  to  which  they  are  directed.  2 

directed.  .  v        v  ^ 

1S76,  227.  §  2.  1894,  398,  §  2;  431.         R.  L.  177,  §  17. 

P.  S.  1.54,  §  32.  1895,  3S0.  1917,  326. 

1893,  396,  §  17. 

ttm'e^fi^  taking      Section  19.     If  a  judgment  remains  unsatisfied  after  the  expiration  1 

iB92-3°24  §  3  ^f  the  time  for  taking  out  execution  thereon,  the  creditor  may  have  a  2 

1772-1' 3^'        ^^'"'^  °^  scire  facias  to  obtain  a  new  execution,  or  he  may  at  any  time  3 

1773-4',  ii(  §  1.  after  the  judgment,  subject  to  section  twenty  of  chapter  two  hundred  4 

1795,'  61, 1  i.     and  sixty,  have  an  action  of  contract  thereon.  5 

R.  S.  97,  §8.  P.  ,S.  171,  §  17.  114  Mass.  76. 

G.  S.  133,  §  17.  R.  L.  177,  §  19.  174  Mass.  550. 

rrterTnefffctuai      Section  20.     If  an  execution  is  returned  satisfied  in  wliole  or  in  1 

isi's  145          P^^*  '-"y  *^®  ^^^^  ^^  propertj^  not  liable  to  such  execution,  and  if  damages  2 

R  s.'97.  §43.    are  recovered  against  the  judgment  creditor  or  the  officer  who  served  3 

p.'s.'i7_i,'§  18.'  the  execution  on  account  of  the  seizure  and  sale  of  such  property,  the  4 

8  Alien,'  4'29.    '  Creditor  may  have  a  writ  of  scire  facias  on  his  judgment,  and  shall  there-  5 

upon  be  entitled  to  a  new  execution  for  the  amount  then  remaining  6 

due  him.  7 

Tf't'erTneffectu.ai      Section  21.     If  au  exccution  against  a  corporation  is  satisfied  in  1 

ofTonwa'tkin^'^  whole  or  in  part  by  service  or  levy  on  the  person  or  property  of  a  2 

G*s'i33'5i9    member  thereof,  and  the  property  levied  on  or  damages  for  the  service  3 

p.'s.i7i.'§  19.'  or  levy  are  subsequently  recovered  by  such  member  from  the  officer  or  4 

R.   L   177    5  ''I  T.  »/  *' 

judgment  creditor,  the  creditor  may  have  a  writ  of  scire  facias  on  his  5 

judgment,  and  shall  thereupon  be  entitled  to  a  new  execution  for  the  6 

amount  then  remaining  due  him.  7 

mtwn°^''^^         Section  22.     The  forms  of  execution  shall  be  the  same  as  have  1 

?78VII°'§\"'    heretofore  been  established  by  law  and  the  usage  and  practice  of  the  2 

1784!  28!          courts.    Executions  issued  upon  judgments  in  civil  actions  in  favor  of  3 

97,  §'§  10, 11.'    the  commonwealth  shall  be  in  form  like  those  in  invor  of  natural  persons.  4 

G.  s.'i33,'§§20,  Executions  issued  by  a  district  court  for  an  amount  as  damages  ex-  5 

r's.  171,  §§20,  ceeding  twenty  dollars  shall  be  so  framed  as  to  direct  a  levy  upon  the  6 

r.'l.  177,  §  22.  lands  and  tenements  of  the  debtor.     Alterations  in  the  forms  may  be  7 

10  Me?32o      made  by  the  courts,  subject  to  the  final  control  of  the  supreme  judicial  8 

3  Cush.  460.      court,  which  may  by  general  rules  regulate  such  changes  in  all  courts  of  9 

X^^  IVXflSS.  loo.         Ill  1  r\ 

161  Mass.  135.     the  commonwealth.                              lOS  Mass.  373.                            229  Mass.  308.  10 

fxeo'Ji't'ion^             Section  23.     Original  executions  shall  be  made  returnable  within  sixty  1 

ulid'  P'  ^  '•  ^^>'S  a^ter  their  date.                    nss,  57,  §  1.                     r.  s.  97,  §  9.  2 

■    ■  1850,  209.  p.  S.  171,  §  22.  2  Met.  587. 

1852,  312,  §  S3.  R.  L.  177,  §  23.  163  Mass.  79. 

G.  S.  133,  §  22.  1914,  54,  §  2.  217  Mass.  71. 


Chap.  235.]  judgment  .\nd  execution.  2531 


SPECIAL   JUDGMENTS   AGAINST   BANKRUPTS   OR   INSOLVENTS. 

1  Section  24.     If  a  plaintiff  would  be  entitled  to  a  judgment  or  a  decree,  Special  judg- 

2  except  for  the  bankruptcy  or  insolvency  of  the  debtor  or  his  discharge  banlrupts'or 

3  therein,  and  if,  more  than  four  months  prior  to  the  commencement  of  isss'sg'^' 

4  proceedings  in  bankruptcy,  or,  in  voluntary  proceedings  in  insolvency,  jf ^l'  177'  §  24 

5  more  than  four  months  prior  to  the  time  of  the  first  publication  of  the  J^9  ^m-  |°g 

6  notice  of  the  issuing  of  the  warrant,  or,  in  in\'oluntary  proceedings,  iss  Mass.  58. 

7  more  than  four  months  prior  to  the  first  publication  of  the  notice  of  the  " 

8  filing  of  the  petition,  or,  in  proceedings  in  composition  in  insolvency  in 

9  which  no  assignment  has  been  made,  more  than  four  months  prior  to 

10  the  notice  by  the  register  to  the  creditors  of  the  debtor's  proposal  of 

11  composition,  any  property,  estate,  interest  or  money  of  a  debtor  has 

12  been  attached,  or  brought  within  the  control  of  a  court  of  equity  by 

13  proceedings  under  clause  seven  of  section  three  of  chapter  two  hundred 

14  and  fourteen,  by  other  proceedings  in  equity,  or  by  payment  into  court, 

15  the  court  may  at  any  time  upon  motion  enter  a  special  judgment  or 

16  decree  for  the  plaintiff,  for  the  amount  of  his  debt  or  damages  and  costs, 

17  or  for  such  other  relief  as  he  may  be  entitled  to,  to  be  enforced  in  the 

18  first  instance  only  against  the  property,  estate,  interest  or  money,  so 

19  attached  or  brought  within  the  control  of  a  court  of  equity.     If  such 

20  property,  estate,  interest  or  money  shall  be  insufficient  to  satisfy  the 

21  judgment  or  decree  in  full,  the  court  may  thereafter,  if  the  debtor's 

22  discharge    is  refused,  or  if  he  shall  unreasonably  delay  to  prosecute 

23  said  proceedings  to  a  discharge,  order  an  alias  or  other  successive  execu- 

24  tion  or  other  process  to  be  issued  upon  such  judgment  or  decree  for  such 

25  portion  thereof  as  remains  unsatisfied.    The  creditor  may  also  in  case  of 

26  such  refusal  or  delay  have  a  writ  of  scire  facias  or  action  as  provided  in 

27  section  nineteen.    This  section  shall  not  impair  the  powers  which  courts 

28  of  equity  may  othera-ise  exercise. 

1  Section  25.     If  a  plaintiff  would  be  entitled  to  a  judgment  or  decree  Special  judg- 

2  except  for  the  bankruptcy  or  insolvency  of  a  defendant,  or  his  discharge  "ent,  etcThag 

3  therein,  who  has  gi\en  a  bond  to  dissolve  an  attachment  or  to  release  dis™ive°an  *° 

4  money  or  property  brought  within  the  control  of  a  court  of  equity  in  ists.'bs!'!*!. 

5  any  manner  specified  in  the  preceding  section,  which  attachment  was  ^^s'ln'iii 

6  made  or  money  or  property  brought  within  control  more  than  four  i^'Ss.  405, 1 1 

7  months  prior  to  the  commencement  of  proceedings  in  bankruptcy,  or,  in  luo  Mass'.  4r76.' 

8  voluntary  proceedings  in  insolvency,  more  than  four  months  prior  to  113  Mass!  332! 

9  the  first  publication  of  the  notice  of  the  issuing  of  the  warrant,  or,  in  [It  Mass!  67*' 

10  involuntary  proceedings  in  insolvency,  more  than  four  months  prior  to  }ilMas9!228! 

11  the  first  publication  of  the  notice  of  the  filing  of  the  petition,  or,  in  pro-  J™  ^\^^^-  H?^- 

...  .....  .  ,  ■?  ,  '   .  11  175  Mass.  559. 

12  ceedings  m  composition  in  insolvency  in  which  no  assigimient  has  been  |'?  ?}''*''■  2^?' 

13  made,  more  than  four  months  prior  to  the  notice  by  the  register  to  the  226  Mass!  u. ' 

14  creditors  of  the  debtor's  proposal  of  composition,  the  court  may  at  any  sos. 

15  time,  upon  motion,  enter  a  special  judgment  or  decree  for  the  plaintiff, 

16  which  siiall  be  a  sufficient  judgment  or  decree,  within  the  meaning  of 

17  the  condition  of  the  bond,  if  like  that  set  forth  in  sections  one  hundred 

18  and  twenty  and  one  hundred  and  twenty-five  of  chapter  two  hundred 

19  and  twenty-three,  to  enable  him  to  maintain  an  action  against  the 

20  sureties  thereon. 

1  Section  26.     The  court  may  enter  a  special  judgment,   with  like  specLai  judg- 

2  effect,  if  a  defendant  who  petitions  for  a  review  is  adjudged  a  bankrupt,  brnkniptcy. 


2532 


JUDGMENT  AND  EXECUTION. 


[CH.A.P.  235. 


etc.,  of  peti- 
tioner for 
review. 
1875,  68.  §  3. 
1880,  246,  §  S. 
P.  S.  171,  §  24. 
1888,  405,  §  3. 
K.  L.  177.  §  26 


or  a  warrant  in  insolvency  is  issued  against  his  estate,  or  he  is  discharged  3 

upon  proceedings  in  composition  if  no  assignment  has  been  made,  before  4 

or  after  having  given  the  security  required  upon  such  petition,  and  if  5 

the  attachment  in  the  original  action  was  not  made  within  the  time  named  G 

in  the  preceding  section.  7 


Set-off  of 
executions. 
1732-3.  12,  § 
1810,  84. 
1830,  124. 
R.  S.  97, 
§§  74-76. 
G.  S.  133. 
§§  23-25. 
P.  .S.  171, 
§§  25-27. 
R.  L.  177,  § : 
7  Mass.  140. 
105  Mass.  32 


9  Met.  509. 


13  Met.  482. 


13  Mass.  525. 
22  Pick.  210. 
176  Mass.  161. 


SET-OFF   OF  EXECUTION.S. 

Section  27.     Executions  between  the  same  parties  may,  if  required  1 

by  either  party,  be  set  off  one  against  the  other.     In  such  case,  the  2 

debtor  in  an  execution  which  has  been  dehvered  to  an  officer  to  be  3 

served  shall  deliver  his  execution  to  the  same  officer,  whether  directed  to  4 

him  or  to  another,  and  the  officer  shall  apply  the  smaller  execution,  so  5 

far  as  it  will  extend,  to  the  satisfaction  of  the  larger  execution,  and  the  6 

balance  due  on  the  larger  execution  may  be  collected  and  paid  by  him  as  7 

if  there  had  been  no  set-off;  but  such  set-off  shall  not  be  allowed —  8 

176  Mass.  46.  215  Mass.  403.  219  Mass.  299. 

First,  If  the  creditor  in  one  of  the  executions  is  not,  in  the  same  9 

capacity  and  trust,  the  debtor  in  the  other.  10 

Second,  If  the  amount  due  on  the  first  execution  was  lawfully  and  11 

in  good  faith  assigned  to  another  person  before  the  creditor  in  the  second  12 

execution  became  entitled  to  the  amount  due  thereon.  13 

Third,  If  there  are  several  creditors  in  one  execution,  from  a  part  of  14 

whom  only  the  amount  due  on  the  other  is  due.  15 

Fourth,  If  there  are  several  debtors  in  one  execution,  to  a  part  of  16 

whom  only  the  amount  due  on  the  other  is  due.  17 

Fifth,  As  to  the  portion  of  either  execution  upon  which  the  attorney  18 

has  a  lien  under  section  fifty  of  chapter  two  hundred  and  twenty-one.  19 


LEVI"  of  execution  AND  PERSONAL  PROPERTY  EXEMPT  THEREFROM. 

dircct*modeof       Section  28.     If  au  cxccution  is  in  the  alternative,  so  that  it  may  1 

R.'^.'^97.  §  12.    be  lawfully  served  in  any  of  two  or  more  ways,  the  creditor  or  his  at-  2 

p' I'm' lis'  torney  may  require  the  officer  to  serve  it  in  any  of  said  ways;   and  the  3 

R.  L.  177.  §  28.  officer  shall  conform  to  such  directions  if  it  is  in  his  power.  4 


11  Mass.  317. 
3  Cush.  460. 


2  Grav,  210. 

3  Gray,  496. 


236  Mass.  93. 


Levy  on  land 

and  personal 

property. 

R.  S.  97,  §§  16, 

17. 

G.  S.  133,  §  27. 

p.  S.  171,  §  29. 


Section  29.     If  the  creditor  directs  an  officer  to  levy  his  execution  1 

on  land,  the  officer  shall  serve  it  as  provided  in  the  following  chapter.  2 

If  he  directs  the  officer  to  levy  it  on  the  personal  property  of  the  debtor,  3 

the  officer  shall  serve  it  as  provided  in  the  following  sections.  4 

R.  L.  177,  §  29.  7  Mass.  123. 


er^ty^of  a^™'''  Section  30.  Au  cxccution  against  a  corporation,  if  levied  upon  its 
r"s°97','§'42.  property,  shall  be  levied  in  the  same  manner  as  other  executions,  except 
p  lili.'flo'  ^s  provided  in  sections  thirty-eight  to  forty-three,  inclusive,  of  chapter 
R.  L.  177,  §  30.  Qne  hundred  and  seventy-five  and  in  chapter  one  hundred  and  fifteen 
of  the  Ilevised  Laws. 


Section  31.     All  property  which  by  common  law  is  liable  to  be  taken 
on  execution,  may  be  taken  and  sold  thereon,  except  as  otherwise  ex- 


Property 
liable  to 
execution. 
R.  S.  97.  §  19. 

G.  s.  133, 1 29.  pressly  provided 

^•^■^''•^^^-  R.L.177,§31, 

7  Mass.  438. 
9  Mass.  537. 
12  Mass.  505. 


15  Mass.  534. 
17  Mass.  405. 
3  Pklv.  368. 
8  Pick.  298. 


7  Grav,  491. 
13  Allen,  449. 
116  M.ass.  410. 
143  Mass.  123. 


CiLVP.  235.]  JUDGMENT  AND  EXECUTION.  2533 

1  Section  32.     Current  gold  or  silver  coin  may  be  taken  on  execution,  Current  coin. 

2  and  may  be  paid  to  the  creditor  as  money  collected.  .  .    ,    -  . 

G.  S.  133,  §  30.  P.  S.  171,  §  32.  R.  L.  177,  §  32.  16  Pick.  567. 


1  Section  33.     Bank  notes  and  all  other  bills  or  evidences  of  debt,  ^*g''g"°'?''.ii 

2  issued  by  a  moneyed  corporation  and  circulated  as  money,  may  be  g.  s.  133,  §  31. 

3  taken  on  execution  and  paid  to  the  creditor  at  their  par  value  as  money  r'.  l.  177,  §33. 

4  collected,  if  he  will  accept  them ;  otherwise,  they  shall  be  sold  like  other  1  piok.^lVi.  " 

5  chattels.  147  Mass.  81. 

1  Section  34.    The  following  property  of  the  debtor  shall  be  exempt  Property  ex- 

„,.  b   f      f        J  f     eniptfrom 

2  from  seizure  on  execution:  execution. 

C.  L.  104,  §  8.  17.59-60,  12,  |  4.  G.  S.  133,  |  32.  135  Mass.  401. 

169S.  11,  §  5.  1762-3,  18,  §  4.  P.  S.  171,  §  34.  198  Mass.  315. 

1732-3,  7.  §  6.  R.  S.  97.  §  22.  R.  L.  177.  §  34.  207  Mass.  159. 

1736-7,  13,  §  7.  1SS7, 235.  6  Allen,  292.  96  U.  S.  595. 
1737-8,  17,  §  7. 

3  First,  The  necessary  wearing  apparel  of  himself  and  of  his  wife  and  JIJ^'  5°°'  ^  ^• 

4  children;    one  bedstead,  bed  and  the  necessary  bedding  for  every  two  !p|;^*j7o 

5  persons  of  the  family;    one  iron  stove  used  for  warming  the  dwelling  i9  Pick. '470.' 

6  house,  and  fuel  not  exceeding  the  value  of  twenty  dollars  procured  and 

7  intended  for  the  use  of  the  family. 

8  Second,  Other  household  furniture  necessary  for  him  and  his  family,  iso.5, 100,  §  1. 

9  not  exceeding  three  hundred  dollars  in  value.  4  Cush.  359. 

11  Allen,  582.  113  Mass.  333.  167  Mass.  371.  207  Mass.  407. 


10  Met.  506. 


1874,  38. 


10  Third,  The  bibles,  school  books  and  library,  used  by  him  or  his  family,  1805, 100,  §  1. 

11  not  exceeding  fifty  dollars  in  value. 

12  Fourth,  One  cow,  six  sheep,  one  swine  and  two  tons  of  hay.  I805, 100,  §  1. 

ISI'^17'2 
15  Mass.  205.  2  Allen,  219.  134  Mass.  401.  ioio,  ii^. 

11  Gray,  211.  8  Allen,  583. 

13  Fifth,  Tools,  implements  and  fixtures  necessary  for  carrying  on  his  1805,  loo,  §i. 

14  trade  or  business,  not  exceeding  one  hundred  dollars  in  value. 

5  Mass.  313.  7  Gray,  67,  69.  6  Allen,  292.  108  Mass.  52. 
13  Mass.  82.  12  Gray,  351.  9  Allen,  156.  123  Mass.  194. 
2  Pick.  80.  2  Allen,  395.  14  Allen,  236.  134  Mass.  401. 
10  Pick.  423.  3  Allen,  570.  101  Mass.  105.  173  Mass.  90. 

6  Gray,  298.  5  Allen,  43,  148.  103  Mass.  181. 

15  Sixth,  Materials  and  stock  designed  and  procured  by  him  and  neces-  1855,264. 

16  sary  for  carrying  on  his  trade  or  business,  and  intended  to  be  used  or  7Gmy!69. ' 

17  wrought  therein,  not  exceeding  one  hundred  dollars  in  value.  9  Gray,  62. 

10  Gray,  242.  5  Allen,  148.  6  AUen,  292.  9  Allen,  156. 

18  Seventh,  Provisions  necessary  and  procured  and  intended  for  the  use  1839,75. 

19  of  the  family,  not  exceeding  fifty  dollars  in  value.  '^^' " 

4  Allen,  157.  5  Allen,  158. 

20  Eighth,  One  pew  occupied  by  him  or  his  family  in  a  house  of  public  i85i,  262. 

21  worship;   but  this  provision  shall  not  prevent  the  sale  of  a  pew  for  the 

22  non-payment  of  a  tax  legally  laid  thereon. 

23  Ninth,  Boats,  fishing  tackle  and  nets  of  fishermen  actually  used  by  1859, 142. 

24  them  in  the  prosecution  of  their  business,  not  exceeding  one  hundred 

25  dollars  in  value. 

26  Tenth,  The  uniform  of  an  officer  or  soldier  in  the  militia  and  the  iso9, 10s,  §  it. 

27  arms  and  accoutrements  required  by  law  to  be  kept  by  him.  1878,205,  §  70. 

p.  S.  14,  §  72.  R.  L.  16,  §  85.  1908,  604,  §§  106,  209. 

1887,  411,  §  71.  1905,  465,  f§  90,  194,  1912,67. 

1890,  425,  §8.  1906,504,5  7.  1917,  327,  §§  131,  230,  268. 
1893,  367,  §  71. 


2534 


JUDGMENT  AND  EXECUTION. 


[ClL'\.P.  235. 


1822,  93,  §  S. 


1860,  65. 
1  Allen,  283. 
3  Allen,  570. 


1870,  224,  §  53. 


1851,340,  §  1. 
1855,  23S.  I  1. 
1857,  298,  I  1. 
G.  S.  104,  §  1. 


Eleventh,  Rights  of  burial  and  tombs  while  in  use  as  repositories  28 
for  the  dead.  29 

Twelfth,  One  sewing  machine,  in  actual  use  by  each  debtor  or  by  his  30 
family,  not  exceeding  one  hundred  dollars  in  value.  31 

6  Allen,  292.  190  Mass.  265. 

Thirteenth,  Shares  in  co-operative  associations  subject  to  chapter  one  32 
hundred  and  fifty-seven,  not  exceeding  twenty  dollars  in  value  in  the  33 
aggregate.  34 

Fourteenth,  Estates  of  homestead  as  defined  in  chapter  one  hundred  35 
and  eighty-eight.  p.  s.  123,  §i.  r.  l.  i3i,§i.  36 


tion^Toffice'r         SECTION  35.     If  thcrc  is  reasonable  doubt  as  to  the  ownership  of  the  1 

S^i?Ii^t'?i    property,  or  as  to  its  Habilitv  to  be  taken  on  the  execution,  the  officer  2 

tj.  B.  13J,  S  66.     ^         ^  "■         ,  rf     '  '  ft  T  '1  'C        ^   •  p  n 

P.  s.  m,  §  3,5.   may  require  suifacient  security  oi  the  creditor  to  indemniiy  hun  tor  6 

150  Mass.  531.  4 


R.  L.  177,  §  35.   ^    ,  . 

7  Mass.  123.      taking  it. 


Sale  of  personal 
property  on 
execution. 
1772-3,  12. 
1783,  57,  §  5. 
R.  S.  97,  §  23. 
G.  S.  133,  §  34. 
P.  S.  171,  §  36. 
R.  L.  177,  §  36. 


SALE   OF  PERSONAL  PROPERTY  TAKEN  ON  EXECUTION. 

Section  36.     Personal  property  seized  on  execution  shall  be  safely  1 

kept  by  the  officer,  at  the  expense  of  the  debtor,  for  four  days  at  least;  2 

and  shall  be  sold  by  public  auction  within  fourteen  days  next  after  the  3 

seizure,  except  as  provided  in  the  following  sections,  unless  the  debtor  4 

before  such  sale  redeems  it  by  otherwise  satisfying  the  execution.  5 

7  Gray,  416. 


Notice  of  sale. 
1772-3.  12. 
1783,  67,  §  5. 
R.  S.  97,  §  24. 
G.  S.  133,  %  35. 
P.  S.  171,  §  37. 
R.  L.  177,  §  37. 
1915.  131. 


Section  37.    The  officer  shall  give  notice  of  the  time  and  place  of  1 

.sale  by  causing  notices  thereof  to  be  posted  forty-eight  hours  at  least  2 

before  the  time  of  sale  in  a  public  place  in  the  town  where  the  sale  is  to  be  3 

made,  or  by  causing  an  advertisement  of  the  time  and  place  of  sale  to  be  4 

published  in  a  newspaper,  if  any,  published  in  the  town  where  the  debtor  5 

had  his  last  and  usual  place  of  residence.  6 


Same,  if  value 
exceeds  three 
hundred 
dollars. 
R.  S.  97.  §  25. 
G.  S.  133,  §  36. 
P.  S.  171,  §  38. 
R.  L.  177,  §  38. 


Section  3S.     If  the  value  of  such  property  to  be  sold  exceeds  three  1 

hundred  dollars,  the  officer  shall,  at  the  request  of  either  party,  give  2 

notice  of  the  sale  by  advertisement  in  a  newspaper  as  provided  in  the  3 

preceding  section ;  and  the  sale  may  be  made  at  any  time  after  the  expira-  4 

tion  of  four  days,  and  within  thirty  days  after  seizure  on  execution.  5 


Adjournment 
of  sale. 

R.  S.  97,  §  26. 
G.  S.  133,  §  37. 
■p.  S.  171,  §  39. 
R.  L.  177,  J  39. 
9  Mass.  265. 


Section  39.     If,  at  the  time  appointed  for  the  sale,  the  officer  con-  1 

siders  it  for  the  interest  of  all  persons  concerned  to  postpone  it,  he  may  2 

adjourn  it  for  not  more  than  se\'en  days,  and  so  from  time  to  time  until  3 

the  sale  is  completed;    giving  notice  of  every  such  adjournment  by  a  4 

public  declaration  thereof  at  the  time  and  place  previously  appointed  for  5 

the  sale.  6 


Adjournment 
upon  injunc- 
tion. 

1884,  175. 
R.  L.  177,  §  40. 


Section  40.     If  a  sale  of  such  property  on  execution  is  enjoined,  it  may  1 

be  adjourned  by  the  court  granting  the  injunction  to  await  further  order  2 

of  the  court,  and  upon  dissolution  of  the  injunction  the  court  may  order  3 

the  sale  to  proceed,  and  may  order  additional  notice  of  the  adjourned  4 

sale.  5 


Re-sale, 

R.  S.  97,  §  27. 


Section  41.     If  the  highest  bidder  for  an  article  at  such  sale  refuses    1 
p.'  I.'  171,'  1 40.'  to  take  and  pay  for  it,  the  officer  shall  sell  it  again  by  auction,  at  the    2 


CH-^P.  235.]  JUDGMENT  Al^T)  EXECUTION.  2535 

.3  same  time  or  within  ten  days  thereafter,  giving  notice  of  the  second  sale;  R.  l.  177,  §  41. 

4  and  he  shall  account  for  what  he  receives  on  the  second  sale,  and  for  any  Li'mess^'mi. 

5  damages  recovered  of  the  first  bidder  for  a  loss  on  the  re-sale,  as  for  so 

6  much  received  on  the  execution. 

1  Section  42.     The  officer  making  such  sale  shall  in  his  retiu-n  of  the  Return  of  exe- 

2  execution  particularly  describe  the  property  sold  and  the  amount  for  b"iity°forVraud. 

3  which  each  article  was  sold;   and  if  he  is  guilty  of  fraud  in  the  sale  or  r^^|.'|J.'||s. 

4  return,  he  shall  be  liable  in  tort  to  the  party  injured  for  five  times  the  pfiyMff' 

5  amount  of  the  actual  damage  sustained  by  reason  of  such  fraud.  ^J^;  "^'  ^  '^^■ 

°  •'  102  Mass.  414. 

1  Section  43.    The  officer  shall  apply  the  money  arising  from  the  sale  Disposition 

2  to  paying  the  charges  and  satisfying  the  execution,  and  shall  return  the  ot  ^aTe'!'''"^^ 

3  residue,  if  any,  to  the  debtor  on  demand,  or  shall  apply  and  pay  over  the  miylv^l's. 

4  same  as  provided  in  the  following  sections. 

R.  S.  97,  §  29.  G.  S.  133,  §  40.  P.  S.  171,  §  42.  R.  L.  177.  §  43. 


1  Section  44.     If  the  property  sold  on  execution  has  been  attached  by  Dispo.sition 

2  another  creditor,  or  seized  on  another  execution,  either  by  the  same  or  prmo?e'cred- 

3  another  officer,  or  if  before  pa^^nent  of  such  residue  to  the  debtor  another  '/gol;  53,  §  e 

4  writ  of  attachment  or  execution  against  him  is  deli\ered  to  the  officer  who  ]f  I'l^-  s  30 

5  made  the  sale,  the  proceeds  of  the  sale  shall  be  applied  to  the  discharge  of  g-  s.  133,  §  41. 

6  the  several  judgments  in  the  order  in  which  the  respective  writs  of  attach-  R.  il  177,  §  44. 

7  ment  or  execution  were  served,  and  any  residue  returned  to  the  debtor.  ^^     ^"^^^  ^°' 

1  Section  45.     If  an  attachment  or  seizure  on  execution  is  made  of  any  Disposition 

2  property  which  may  be  attached  without  taking  and  keeping  the  exclusi\'e  attachmente!'^^ 

3  possession  thereof,  and  if  the  same  property  is  subsequently  attached  or  }s?g;  I7;  ^  ^■ 

4  taken  on  execution  by  another  officer,  he  shall  give  notice  thereof  to  the  g-  g  i33^s^|b 

5  officer  who  made  the  first  attachment  or  seizure;  and  if  the  latter,  before  ?■  s-  in^'  §  «^ 

6  he  receives  such  notice,  pays  to  the  debtor  the  balance  of  the  proceeds  of  i9io,'s4i.'  §  1. ' 

7  a  sale,  he  shall  not  be  liable  therefor  to  the  person  claiming  under  such 

8  subsequent  attaclmient  or  seizure. 

LE\'Y   on  terms   for   YEARS. 

1  Section  46.     Terms  for  vears,  if  the  original  lease  was  for  one  hundred  f <'^'y  "^  t«'''^ 

*  lor  vcsrs. 

2  years  or  more,  and  fifty  years  or  more  thereof  remain  unexpired,  shall  be  is34. 102,  §  1. 

3  regarded  as  real  estate,  for  the  levy  of  an  execution  thereon.   Other  terms  is'47',  207.  §  4'. 

4  for  years  shall  be  seized  and  sold  on  execution  in  like  manner  as  personal  p.s.'i7i,'|5i.' 

5  property,  except  that  the  officer  before  selling  the  same  shall  give  fourteen  fiiuals.  loef' 

6  days'  notice  of  the  time  and  place  of  sale,  by  leaving  a  written  notice 

7  thereof  with  the  debtor  personally  or  at  his  last  and  usual  place  of  abode, 

8  and  by  posting  a  notice  on  the  leased  premises. 

suspension  of  levy. 

1  Section  47.     If  personal  property  has  been  seized  on  execution,  and  ''j'p^sion 

2  the  further  service  of  the  execution  is  suspended  by  reason  of  a  prior  ^-  s  ||i5  ^|. 

3  attachment  or  seizure  of  the  same  property,  such  property  shall  remain  p'.'s.'i7i,'§  52.' 

4  bound  by  such  later  seizure  until  sold,  in  whole  or  in  part,  under  the  prior  3  Met.  251. 

5  attacliment  or  seizure,  or  until  that  attachment  or  seizure  is  dissolved.      97\Mass.°339. 

100  Mass.  126.  128  Mass.  427. 


2536 


JUDGMENT   AND   EXECUTION. 


[Chap.  235. 


Same  subject. 
R.  S.  97,  §  35. 
G.  S.  133,  I  51. 
P.  S.  171.  i  53. 
R.  L.  177,  §54. 
Ill  Mass.  S'l. 


Section  48.     If  such  property  is  sold  in  part  under  the  prior  attach-  1 

ment  or  seizure,  or  if  that  attachment  or  seizure  is  dissolved,  the  property  2 

or  any  part  thereof  remaining  undisposed  of  shall  continue  bound  for  3 

thirty  days  thereafter  by  the  seizure  on  the  execution;  and  service  of  the  4 

execution  may  be  completed  as  if  the  estate  had  been  first  seized  thereon  5 

within  said  thirty  days,  although  the  return  day  of  the  execution  has  6 

passed.  7 


Death,  etc..  of 
officer  after 
beginning  of 
levy  or  service. 
R.  S.  97.  §  13. 
G.  S.  133.  §  52. 
P.  S.  171.  §54. 
18S5,  125. 
R.  L.  177.  §5.5. 
2  Pick.  276. 
148  Mass.  501. 


DEATH,  ETC.,  OF  OFFICER  OR  PARTY  AFTER  COMMENCEMENT  OF  LEVY 

OR  SERVICE. 

Section  49.     If  an  officer,  who  has  begun  to  serve  an  execution  or  1 

other  writ  or  process,  dies  or  becomes  incapable  of  completing  the  serv-  2 

ice  and  return  thereof,  the  service  may  be  completed  by  any  officer  3 

qualified  to  serve  it;    or  in  case. of  illness  or  absence,  the  judgment  4 

creditor  or  the  officer  who  began  to  serve  the  writ  or  process  may  dele-  5 

gate  any  officer  qualified  to  serve  it  temporarily  to  act  for  him  during  6 

said  illness  or  absence.     If  the  first  officer  has  not  made  a  certificate  7 

of  his  doings,  the  second  officer  shall  certify  whatever  he  finds  to  have  8 

been  done  by  the  first  oflScer,  and  shall  add  thereto  a  certificate  of  his  9 

own  doings.  10 


Removal  of 
officer,  etc., 
after  beginning 
of levv. 
R.  S.  97.  §  14. 
G.  S.  133,  §  53. 
P.  S.  171,  §  55. 


Section  50.  If  an  officer  has  begun  to  serve  an  execution,  he  may 
complete  the  service  and  return  thereof,  although  he  is  removed  from 
office  or  although  the  ser^^ce  cannot  be  completed  until  after  the  return 
day. 

R.  L.  177,  §  56.  166  Mass.  33. 


after  begiSninl  Section51.     If  either  party  dics  after  any  property,  real  or  personal,  1 

R.  1^7,  §  15.  has  been  seized  on  execution,  the  service  thereof  may  be  completed  in  2 

P.' I.' m,' 1 56.'  'ike  manner  and  with  like  eft'ect  as  if  both  parties  were  living  and  the  3 

R.  L.  177,  §57.  officer  may  appoint  an  appraiser  for  the  deceased  party.  4 


9  Mass.  209. 


3  Met.  251. 


222  Mass.  131. 


PENALTY   ON   OFFICER   FOR  DETAINING  MONEY  COLLECTED. 

Section  52.     An  officer  who,  upon  demand  by  the  creditor,  unreason-  1 

ably  neglects  to  pay  money  collected  by  him  on  execution  shall  forfeit  2 

to  the  creditor  five  times  the  lawful  interest  of  the  money  from  the  time  3 

G.  s.  i33,''§  56.  of  the  demand  until  it  is  paid.  4 

p.  S.  171,  §  57.  R.  L.  177,  §  58.  7  Mass.  464.  4  Met.  149. 


Penalty  for  de- 
taining money 
collected. 
1736-7.  19.  §  2. 
1784,  44,  §  3. 
R.  S.  97,  §  73, 


REFERENCES. 

§  34.     Exemptions  from  seizure  upon  legal  process. 
State  aid,  Chap.  115,  §  14. 

Minor's  United  States  pay  or  bounty,  Chap.  115,  §  23. 
Retirements  and  pen.sions.  Chap.  32,  §  92. 
Workmen's  compensation.  Chap.  152,  §  47. 
Railroad  and  street  railway  benefit  funds,  Chap.  159,  §  S8. 
Special  trust  funds  in  savings  banks,  Chap.  168,  §  37. 
Fraternal  benefits,  Chap.  176,  §  30. 
Assessment  insurance  benefits.  Chap.  177,  §  17. 
Money  in  hands  of  public  officer.  Chap.  246,  §  32,  cl.  3d. 
Wages  of  wife  or  children.  Chap.  246,  §  32,  cl.  6th. 
Wages  or  lay  of  .seamen.  Chap.  246,  §  32,  cl.  7th. 
Exemptions  from  trustee  process  in  general,  Chap.  246,  §  32. 


Chap.  236. 


le\t:  of  executions  on  l.vnd. 


2537 


CHAPTER    236. 

LEVY  OF  EXECUTIONS  ON  LAND. 


Sect. 

land  subject  to  levy. 

1.  Land  and  rights  liable  to  be  taken. 

2.  Estates  tail. 

PROCEEDINGS  UPON  LEVY. 

3.  Notice  and  appraisal. 

4.  Deposit  of  notice  of  land  taken  on  exe- 

cution. 

5.  Entries  by  register, 

LEVY  BY  SET-OFF. 

6.  Appointment  of  appraisers. 

7.  Duties  of  appraisers. 

8.  Estate  to  be  valued  as  a  fee  simple, 

unless. 

9.  Appraisal  of  land  subject  to  mortgage. 

10.  Appraisal    when    several    parcels    are 

le\'ied  on. 

11.  Description  of  land  in  certificate. 

12.  Le\'y  on  land  held  jointly  or  in  common. 

13.  hevy  on  land  incapable  of  division. 

14.  Levy  on  life  estate. 

15.  Levy  on  rents  and  profits. 

16.  Levy  on  leased  land. 

17.  Same  subject. 

IS.  Levy  of  execution   upon   property   in 
which  homestead  exists. 

19.  Officer  to  deliver  seisin  to  creditor. 

20.  Momentary  seisin,  when. 

21.  Return  and  record  of  execution. 

22.  Effect  of  record. 

23.  Officer's  return. 

24.  Levy  void,  when. 

25.  Levy  valid  against  the  creditor. 

LEVY    BY   SALE. 

26.  Levy  by  sale. 

27.  Sale,  how  made. 

28.  Notice  of  sale. 

29.  Adjournment. 

30.  -Adjournment  by  court. 


Sect. 

suspension  of  levy. 

31.  Suspension  of  levy. 

32.  Proceedings  after  dissolution  of  prior 

attachment. 


right  of  redemption. 

33.  Right  of  redemption. 

34.  Ascertainment  of  amount  due. 

35.  Redemption     of    mortgage     paid     by 

creditor  or  purchaser. 
Redemption   of  right  to   redeem   from 

tax  sale. 
Redemption  of  life  estate  if  le\-y  is  on 

rents  and  profits. 

38.  Remedy  if  creditor  does  not  release. 

39.  Suit  to  redeem. 

40.  Proceedings. 

41.  Costs. 

42.  Rights  of  debtor,  creditor  or  purchaser 

may  be  exercised  by  his  heirs,  etc. 


36 


37 


GENERAL   PROVISIONS. 

43.  When  levy  made. 

44.  Notice,  how  served. 

45.  Fees  and  charges  added  to  debt. 

46.  Levy  upon  lands  in  different  counties. 

47.  Action  for  possession   to   be   brought, 

when. 

48.  hevy  on  land  subject  to  lien  not   al- 

lowed for. 

49.  Levy  on  right  of  redeeming  land  taken 

on  execution. 

50.  Waiver  of  levy. 

51.  Scire  facias  on  invalid  le^'y. 

52.  Procedure. 

53.  Levy  on  land  of  deceased. 

54.  Redemption  and  exemption. 

55.  Curtesy  and  dower  in  land  taken  on 

execution. 


LAND    SUBJECT   TO    LEVY. 

1  Section  1.     All  tlie  land  of  a  debtor  in  possession,  remainder  or  rever- i,and  and 

2  sion,  all  his  rights  of  entry  into  land  and  of  redeeming  mortgaged  land,  jifbeVa'keu'! 
.3  and  all  such  land  and  rights  fraudulently  conveyed  by  him  M'ith  intent  Js^f'j"' 

4  to  defeat,  delay  or  defraud  his  creditors,  or  purchased  or  directly  or  ijiti-ij,  3, 5 1. 
.5  indirectly  paid  for  by  him  but  the  record  title  of  M'hich  has  been  retained  1783,57,§§2,4. 
G  in  the  vendor  or  conveyed  to  a  third  person  with  intent  to  defeat,  delay  §§  1,'  31! 

7  or  defraud  the  creditors  of  the  debtor,  or  on  a  trust  for  him,  express  or  \lll[  453;  ^  '• 

8  implied,  whereby  he  is  entitled  to  a  present  conveyance,  may,  except  as  pf' n|'|  J 


2538 


LEVT  OF  EXECUTIONS  ON  LAND. 


[Chap.  236. 


R.  L.  178.  §  1. 

13  Mas3.  207. 

14  Mass.  378. 


provided  in  chapter  one  hundred  and  eighty-eight,  be  taken  on  execution    9 
for  his  debts  as  provided  in  this  chapter.        le  Mass.  345.        1  Pick.  351.  10 


2  Pick.  508. 

3  Pick.  484. 

4  Pick.  131. 
17  Pick.  137. 

1  Met.  628. 
7Cush.  431. 

2  Gray,  638. 
11  Gray,  217. 

1  Allen.  235. 

2  AUen,  77. 


13  Allen,  257. 
97  Mass.  310. 
99  Mass.  478. 

101  Mass.  424. 

102  Mass.  50. 
114  Mass.  520. 
116  Mass.  410. 

120  Mass.  481. 

121  Mass.  476. 
125  Mass.  11. 


126  Mass.  278. 

150  Mass.  289. 

151  Mass.  71. 
175  Mass.  373. 
189  Mass.  390,  424. 
225  Mass.  217. 
228  Mass.  385. 

230  Mass.  197. 

231  Mass.  563. 
233  Mass.  158. 


Estates  tail. 
1791,  60.  I  2. 
R.  S.  73.  §  2. 
G.  S.  103,  §  2. 
P.  S.  172,  §  2. 


Section  2.     Estates  tail  may  be  taken  on  execution  in  like  manner  1 

as  estates  in  fee  simple;  and  whoever  lawfully  holds  such  land  under  the  2 

execution  shall  have  an  estate  in  fee  simple  therein.  3 

R.  L.  178,  §  2.  3  Gray,  162. 


Notice  and 
appraisal. 
R.  S.  73,  §  22. 
G.  S.  103,  §  24. 
P.  S.  172,  §  3. 
R.  L.  178,  §  3. 
Ill  Mass.  84. 


PROCEEDINGS   UPON  LEVY. 


Section  3.    An  officer  taking  land  on  execution  shall  give  notice  1 

thereof  to  the  debtor,  if  found  within  his  precinct,  cause  the  land  to  be  2 

appraised  as  provided  in  this  chapter,  if  an  appraisal  is  required,  and  3 

complete  the  levy  without  unnecessary  delay.  4 


124  Mass.  172. 


130  Mass.  25. 


Deposit  of 
notice  of  land 
taken  on 
execution. 
1862,  190, 
§§  1.  4. 
1871,  123. 
1873,  297,  §  1. 
P.  S.  172,  §  4. 
R.  L.  178,  §  4. 
1920.  344. 
143  Mass.  195. 
209  Mass.  368. 


Section  4.  If  land,  which  was  not  attached  on  mesne  process  in  the  1 
action  in  which  the  execution  issued,  is  taken  on  execution,  the  officer  2 
shall  forthwith  deposit  in  the  registry  of  deeds  for  the  county  or  district  3 
where  the  land  lies  a  copy  of  the  execution  with  a  memorandum  thereon  4 
that  the  execution  is  in  his  hands  for  the  purpose  of  taking  the  land  of  5 
the  defendant,  and  no  such  taking  shall  be  valid  against  a  purchaser  in  6 
good  faith,  for  value  and  without  notice,  before  such  copy  is  deposited.  7 
If  land  was  attached  on  mesne  process,  a  copy  of  the  execution  with  a  8 
memorandum  as  aforesaid  shall  be  deposited  by  the  officer  in  the  registry  9 
of  deeds  for  the  county  or  district  where  the  land  lies,  within  forty  days  10 
after  the  judgment  in  the  action,  and  the  attachment  shall  become  void  11 
forty  days  after  said  judgment  unless  the  copy  is  so  deposited;  provided,  12 
that  if  land  was  attached  on  mesne  process  in  Nantucket  county  and  judg-  13 
ment  was  rendered  in  another  county,  or  if  judgment  was  rendered  in  14 
Nantucket  county  and  land  was  attached  in  another  county,  said  copy  15 
shall  be  deposited  within  seventy  days  after  judgment  in  the  action,  16 
and  the  attachment  shall  become  void  seventy  days  after  said  judgment  17 
unless  the  copy  is  so  deposited.  18 


Entries  by 
register. 
1862,  190,  §  2. 
P.  a.  172,  §  5. 
R.  L.  178,  §  5. 


Section  5.     The  register  shall  note  on  every  such  copy  the  day,  1 

hour  and  minute  when  received  and  shall  file  it  in  his  office.     He  shall  2 

enter  in  the  book,  kept  by  him  for  the  entry  of  attachments  of  land,  the  3 

names  of  the  plaintiff  and  defendant  as  stated  in  the  copy  and  the  time  4 

when  the  copy  was  deposited.  5 


LEVY   BY   set-off. 


Appointment 
of  appraisers. 


Section  6.  The  officer  shall  cause  the  land  to  be  appraised  by  three 
1719-20'  9  1 1'  disinterested  persons,  to  be  appointed,  one  by  the  creditor,  one  bj^  the 
i78|.  57,|'2  debtor  whose  land  is  taken  or,  if  the  debtor  is  absent  from  or  does  not 
22.  '  '  '  reside  in  the  commonwealth,  by  his  agent  or  attorney  if  he  has  any 
1852]  25o;         known  to  the  officer,  and  one  by  the  officer.     If  the  debtor  is  absent  from 


Chap.  236.]  levy  of  executions  on  land.  2539 

6  or  does  not  reside  in  the  commonwealth  and  has  no  agent  or  attorney  g  s.  los, 

7  known  to  the  officer  or  if  he  neglects  within  a  reasonable  time  to  appoint  p.  s.'  172, 5  7. 

8  an  appraiser,  the  officer  shall  appoint  one  for  him.  R-  L-  i7s,  §  7. 

8  Mass.  113.  8  Met.  599.  2  Allen,  338.  114  Mass.  429. 

11  Mass.  468.  2Cush.  32.  110  Mass.  529.  122  Mass.  267. 

2  Pick.  382,  443.  15  Gray,  28.  113  Mass.  347.  126  Mass.  93. 

1  Section  7.     The  appraisers  shall  be  sworn,  before  a  justice  of  the  Duties  of 

2  peace  or  the  officer,  faithfully  and  impartially  to  appraise  the  land  lyfivf?"!',  §  i. 

3  shown  to  them  as  taken  on  the  execution,  shall,  with  the  officer,  view  178375?',  "§'2 

4  the  same  and  shall  make  such  examination  of  it  as  may  be  necessary  R.s.  73,  §§3, 

5  to  form  a  just  estimate  of  its  value.    A  certificate  of  their  appraisal  }|^8. 3i7. 

6  signed  by  them  shall  be  endorsed  on  the  execution;   but  if  one  of  the  g.  s!  103,  §§  3, 

7  appraisers  who  was  sworn  and  acted  with  the  others  refuses  to  sign  the  p.s.i72,§§s,9. 

8  certificate,  the  certificate  of  the  others  shall  be  sufficient.  .   ■   '  .  ^  . 

7  Mass.  71.  8  Mass.  284.  14  Mass.  143.  2  Pick.  331.  382.  564. 

1  Section  8.     The  value  of  the  estate  of  the  debtor  shall  be  appraised  ^|,'^*^  *°  ^^ 

2  as  an  estate  in  fee  simple  in  possession,  unless  it  is  expressly  stated  in  the  ^™||^"'p'^' 

3  description  endorsed  on  the  execution  to  be  a  less  estate.    All  the  free-  r.  s.  73  §s 

4  hold  estate  and  interest  which  the  debtor  has  in  the  land  shall  be  taken  p.s.'  172.'  §  16. 

5  and  shall  pass  by  the  levy,  unless  it  is  a  larger  estate  than  is  mentioned  u  Mais.  464.' 

6  in  said  description.  1  Met.  345.  4  Met.  404.  125  Mass.  7. 

1  Section  9.     If  a  right  of  redeeming  mortgaged  land  is  taken  and  set  j^P5^^^^[f'j,°' 

2  off  on  execution,  the  appraisers  shall  deduct  the  value  of  the  encumbrance  to  mortgage. 

3  or  the  amount  of  the  mortgage  debt,  when  known,  from  the  appraised  g'.  s.  103,  §  33. 

4  value  of  the  land,  and  the  amount  so  deducted  shall  be  stated  in  the  r.  l.  i7s,  §  10. 

5  return  of  the  execution.  11  Mass.  222.  le  Mass.  400. 

4  Met.  404.  10  Gush.  526.  97  Mass.  339.  125  Mass.  66. 


1  Section  10.     If  the  execution  is  levied  at  the  same  time  upon  several  ^ev?rai''pirceir 

2  parcels  of  land,  each  parcel  may  be  separately  appraised,  or  all  may  be  fj"g'^7^'''5°g"- 

3  appraised  together.     If  several  parcels  are  taken  successively  on  the  c'.  s.  los,  §  e. 

4  same  execution,  all  the  parcels  may  be  appraised  by  the  appraisers  first  r'.  l.  iVs,  §  ii. 

5  appointed,  or  appraisers  may  be  appointed  for  each  parcel. 

11  Mass.  515.  2  Pick.  382.  10  Allen,  494. 

1  Section  11.     Land  levied  upon,  whether  an  entire  parcel  or  an  un-  Description 

2  divided  part,  and  whether  the  debtor's  estate  therein  is  a  fee  simple  or  a  ?ertXat°e. 

3  less  estate,  and  whether  it  is  in  possession,  reversion  or  remainder,  shall  §:  i:  io3,S^s. 

4  be  described,  by  metes  and  bounds  or  otherwise,  with  as  much  precision  r  l.\78.|  12. 

5  as  is  necessary  in  a  deed  of  land,  and  in  such  manner  that  the  land  may  ^^l^^-  s?- 

•^  ,  .       .  .  ....        11  Mass.  515. 

6  be  known  and  identmed.     Such  description  may  be  contained  in  the  4  Met.  404. 

7  certfficate  of  the  appraisers  or  in  the  return  of  the  officer,  and  the  de-  e  Gray ,'552. 

8  scription  in  either  may  be  referred  to  and  adopted  in  the  other.  i25">fast^7. 

1  Section  12.     If  land  is  held  by  a  debtor  in  joint  tenancy  or  as  a  Levy  on  land 

2  tenant  in  common,  the  share  thereof  belonging  to  the  debtor  may  be  or|in 'common. 

3  taken  on  execution,  and  shall  thereafter  be  held  in  common  with  the  R*i|'73,'§9.' 

4  co-tenant.     If  the  whole  share  of  the  debtor  is  more  than  sufficient  to  p|j7?'|f4 

5  satisfy  the  execution,  the  levy  shall  be  made  upon  such  undivided  por-  R.  l.  178.  §  is. 

6  tion  of  such  share  as  will,  in  the  opinion  of  the  appraisers,  satisfy  the  474. 

7  execution,  and  such  undivided  portion  shall  be  held  in  common  with  21  pia^Ws. 

8  the  debtor  and  the  other  co-tenant.  -^^  ^''""-  "^- 


2540 


'LEVY  OF  EXECUTIONS   ON   LAND. 


[Chat.  236. 


Levy  on  land 
incapable  of 
division. 
1S18,  115,  §  1. 
R.  S.  73,  §  10. 
G.  S.  103,  §  10. 
P.  S.  172,  §  15. 
R.  L.  178,  §  14. 
101  Mass.  418. 


Section  13.  If  the  land  levied  upon  cannot  be  divided  without 
damage  to  the  whole  and  is  more  than  sufficient  to  satisfy  the  execution, 
the  levy  shall  be  made  upon  such  undivided  portion  of  the  whole  as 
will,  in  the  opinion  of  the  appraisers,  satisfy  the  execution,  and  such 
undivided  portion  shall  be  held  in  common  with  the  debtor. 

Ill  Moss.  83. 


Mtlte°°''^'^  Section  14.     A  life  estate  may  be  taken  and  set  off  to  the  creditor 

S  I'  Tni^s'Ji    like  other  land  at  the  appraised  value  or,  at  the  election  of  the  creditor, 

O.  S.  103.  §  11.  .  1       •     1  1  I  r?  r, 

P.  s.  172,  §  16.   the  execution  may  be  levied  on  the  rents  and  pronts.  3 

R.  L.  178,  §  15.  10  Mass.  260.  15  Mass.  439. 


1 

2 


Levy  on  rents 
and  profits. 
R.  S.  73,  §  12. 
G.  S.  103,  §  12. 
P.  S.  172.  §  17. 
R.  L.  178,  §  16. 


Section  15.     If  execution  is  levied  on  rents  and  profits,  the  annual  1 

value  thereof  shall  be  determined  by  the  appraisers,  and  the  land  shall  2 

be  set  off  to  the  creditor  for  such  time  as  will  satisfy  the  execution  at  3 

the  rate  of  rents  and  profits  as  determined  by  the  appraisers,  if  the  life  4 

estate  endures  so  long,  computing  interest  on  the  amount  due  on  the  5 

execution  and  deducting  the  rents  and  profits  as  they  accrue  as  so  much  6 

paid  from  time  to  time.    If  the  life  estate  expires  before  the  end  of  the  7 

term  so  fixed,  the  creditor  may  have  a  new  action  on  the  judgment  to  8 

recover  the  amount  then  due  thereon.  9 


Levy  on 
leased  land. 
R.  S.  73.  §  13. 
G.  S.  103,  §  13. 
P.  S.  172,  §  IS. 
R.  L.  178,  I  17. 


Section  16.     If  the  land  levied  upon  is  under  lease  to  a  third  person,  1 

and  the  reversion  of  the  whole  is  taken  on  the  execution,  the  lessee  shall  2 

pay  to  the  creditor  the  rent  accruing  after  the  levy,  except  such  part  3 

as  he  has  paid  before  notice  of  the  levy.  4 


R"s^73,''ri4.        Section  17.     If  the  land  is  under  lease  as  aforesaid  and  the  reversion  1 

p.'  I.'  172,'  1 19.'  of  ^  P^rt  only  's  taken,  the  appraisers  shall  determine  the  portion  of  the  2 

ri  MMs^'ilg  *'  ^'hole  annual  rent  to  be  paid  to  the  creditor,  and  the  lessee  shall  pay  it  3 

to  him.  4 


Levy  of  execu- 
tion upon  prop- 
erty in  which 
homestead 
exists. 

1851,  340,  §  7. 
1855,  238,  §  6. 

1857,  898,  §  15. 

1858,  62. 

G.  S.  104,  I  11. 
p.  S.  123,  §  13. 
R.  L.  131,  §  13. 
11  Gray,  217. 
6  Alien,  401. 
99  Mass.  7. 


Section  18.     If  a  judgment  creditor  requires  an  execution  to  be  1 

levied  on  property  which  is  claimed  by  the  debtor  to  be  as  a  homestead  2 

exempt  from  such  levy,  and  if  the  officer  holding  such  execution  is  of  3 

opinion  that  the  premises  are  of  greater  value  than  eight  hundred  dol-  4 

lars,  appraisers  shall  be  appointed  to  appraise  the  property  in  the  manner  5 

provided  by  section  six.    If,  in  the  judgment  of  the  appraisers,  the  prem-  6 

ises  are  of  greater  value  than  eight  hundred  dollars,  they  shall  set  off  7 

to  the  judgment  debtor  so  much  of  the  premises,  including  the  dwelling  8 

house,  in  whole  or  in  part,  as  shall  appear  to  them  to  be  of  the  value  of  9 

eight  hundred  dollars;   and  the  residue  of  the  property  shall  be  levied  10 

upon  and  disposed  of  in  like  manner  as  land  not  exempt  from  levy  on  11 

execution;  and  if  the  property  levied  on  is  subject  to  a  mortgage,  it  may  12 

be  set  off  or  sold  subject  to  the  mortgage  and  to  the  estate  of  home-  13 

stead,  in  like  manner  as  land  subject  to  a  mortgage  only.  14 


OfEcer  to  de- 
liver seisin  to 
creditor. 
17115-17,  3,  §  1. 
1719-20,  9,  §  1. 
1783.  57,  §  4. 
R.  S.  73.  §  15. 
G.  S.  103,  §  15. 
P.  S.  172,  §  20. 
R.  L.  178,  §  19. 


Section  19.     An  officer  serving  an  execution  shall  deliver  to  the  1 

creditor  or  to  his  attorney  seisin  and  possession  of  the  land  taken  thereon,  2 

so  far  as  the  nature  of  the  estate  and  the  title  of  the  debtor  will  admit;  3 

but  if  the  estate  taken  is  a  remainder,  reversion  or  right  of  redemption,  4 

the  officer  shall  not  oust  the  person  lawfully  in  possession  of  the  land,  5 

but  shall  assign  to  the  creditor  the  right  which  the  debtor  had  therein,  6 

and  make  his  return  accordingly.  7 


CH-^P.  236.]  LEVY  OF  EXECUTIONS  ON  LAND.  2541 

1  Section  20.     If  an  execution  is  levied  on  land  of  which  a  person  other  Momentary 

2  than  the  debtor  is  actually  seized,  the  officer  shall  deliver  to  the  creditor  k's^Vs.  lie. 

3  or  to  his  attorney  such  momentary  seisin  and  possession  thereof  as  will  p  |;  nl.' 1 21.' 

4  enable  the  creditor  to  maintain  an  action  therefor  upon  his  own  seisin;  gMai^lal.^' 

5  but  the  officer  shall  not  oust  the  tenant  then  in  possession.  128  Mass.  427. 

1  Section  21.     The  officer  shall  return  the  execution,  with  a  certificate  Return  and 

2  of  his  doings  endorsed  thereon,  to  the  court  to  which  it  is  returnable,  cSn."  '""^ 

3  and  such  execution  and  certificate  shall  be  forthwith  recorded.    The  }nlt J?;  I.'j  1. 

4  officer  shall  also,  within  three  months  after  the  levy  has  been  completed,  \llt:l%%\^- 

5  cause  the  execution  and  return  to  be  recorded  in  the  registry  of  deeds  ^'^I'll'lf^ 

6  for  the  county  or  district  where  the  land  lies.  • 

G.  S.  103,  §  17.  R.  L.  178,  §  21.  3  Pick.  331. 

P  S  172.  §  22.  1917,  326.  135  Mass.  65. 

1895,  437.  15  Mass.  137.  148  Mass.  501. 

1  Section  22.     Such  record  in  the  registry  of  deeds  of  an  execution  Effect  of 

2  issued  by  a  district  court,  and  of  the  levy  thereon,  shall  be  prima  facie  ism,  269,  §  2. 

3  evidence  of  the  regularity  of  the  judgment  and  prior  proceedings  in  the  p;  |;  l°i;  1 23.' 

4  case.  R-  L-  178,  §  22.  1917,  326. 


1  Section  23.    The  return  of  the  officer  on  the  execution  shall,  in  officer's 

2  addition  to  the  other  requirements  of  law,  set  forth  substantially  —  r.  ^"73,  §  23. 

1852,  256.  R.  L.  178.  §  23.  103  Mass.  151. 

G.  S.  103,  §  25.  10  Met.  62.  118  Maes.  517. 

P.  S.  172,  §  24.  97  Mass.  310.  125  Mass.  7. 

3  First,  The  time  when  the  land  was  taken  on  execution;  9  Met. 413, 476. 

4  Second,  Either  that  the  appraisers  were  appointed  by  the  oflScer,  the  2  Mass.  154. 

5  creditor  and  the  debtor,  or  that  the  debtor  was  absent  from,  or  not  resi-  u  ^IIs3. 26. 

6  dent  in,  the  commonwealth  and  had  no  agent  or  attorney  known  to  the  417"^  '    ' 

7  officer,  or  neglected  to  appoint  an  appraiser,  and  the  officer  appointed  g'c^^l'ii*!^' 

8  one  for  him; 

15  Gray,  28.  4  Allen,  406.  124  Mass.  172. 

16  Gray,  334.  12  Allen,  543.  126  Mass.  93. 

9  Third,  That  the  appraisers  were  duly  sworn,  unless  a  certificate  of  ^  ^'^'-  *''^- 

10  the  oath  is  endorsed  on  the  execution  and  signed  by  the  person  adminis- 

11  tering  it; 

12  Fourth,  That  they  appraised  and  set  off  the  land  at  the  value  stated;  ?oYMats.^4i8. 

13  Fifth,  That  the  officer  either  delivered  seisin  thereof  to  the  creditor  or  n  Mass.  sis. 

14  his  attorney,  or  assigned  it  to  him  as  provided  in  the  case  of  a  remainder  2  Pick.  382. 

15  or  incorporeal  estate; 

16  Sixth,  The  description  of  the  land  unless  it  is  sufficiently  described 

17  in  the  certificate  of  the  appraisers  and  the  return  refers  to  and  adopts  that 

18  description;    and 

19  Seventh,  If  the  appraisal  is  signed  by  only  two  of  the  appraisers,  that  f^'^'jillg^f^g, 

20  all  three  of  them  were  present  and  acted  in  the  appraisal.  2  Pick.  331.  " 

1  Section  24.     If  the  execution  and  return  are  not  recorded  in  the  x.e^T  void, 

2  registry  of  deeds  within  three  months  as  aforesaid,  the  le\-y  shall  be  void  r.  s.'73,  §  is. 

3  as  against  a  creditor  who  has  attached  the  same  land  or  taken  it  on  p.f.i^l.'lis.' 

4  execution  without  notice  of  such  levy,  and  also  as  against  a  purchaser  ^-  ^-  ^''*'  ^  ^■ 

5  in  good  faith  for  value  and  without  such  notice;   but  if  such  execution 

6  and  return  are  recorded  after  the  expiration  of  the  three  months,  the 

7  levy  shall  be  valid  and  efi'ectual  as  against  a  conveyance,  attachment 

8  or  levy  made  after  such  recording. 

\ 


2542 


LEVY  OF  EXECXJTIONS   ON  LUSTD. 


[Chap.  236. 


Levy  valid 

against  the 

creditor. 

R.  S.  73.  §  19. 

G.  S.  103,  §  20. 

P.  S.  172.  §  26. 

R.  L.  178,  §  25. 


Section  25.  If  tlie  execution  and  return  have  not  been  returned  or 
recorded  as  aforesaid,  the  le\y  shall  be  so  far  valid  against  the  creditor 
that  he  shall  not  waive  the  \e\'y  and  have  a  new  execution,  except  as 
pro\'ided  in  section  fifty. 


Levy  by  sale. 
17S3,  58.  §  3. 
1798,  77,  I  3. 
1804,  83,  §  6. 
R.  S.  73,  §§37, 
S5;  97,  §  32. 
G.  S.  103, 
§§  39,  58. 
1874,  188, 
§§  1,  2. 
ISSl,  39. 
P.  S.  172.  §  27. 
R.  L.  178,  §  26. 
99  Mass.  446. 


LE\T.-   BY   S.VLE. 

Section  26.     Land  and  rights  mentioned  in  section  one  and  rights  1 

of  redeeming  land  sold  for  the  pajonent  of  taxes  and  other  assessments  2 

may,  if  the  creditor  so  elects,  be  sold  on  execution  as  provided  in  the  four  3 

following  sections,  and,  after  satisfying  the  execution  with  the  costs  and  4 

charges,  the  surplus  proceeds  of  the  sale  shall  be  applied  and  disposed  5 

of  as  provided  upon  a  sale  of  personal  property  on  execution  under  the  6 

preceding  chapter.    Land  or  rights  taken  on  an  execution  in  favor  of  the  7 

commonwealth  shall  in  all  cases  be  so  sold.  8 


128  Mass.  369. 


129  Mass.  210. 


133  Mass.  374. 


140  Mass.  373. 


Sale,  how 

made. 

179S,  77, 

§§  3,  5. 

R.  S.  73,  §  38. 

G.  S.  103,  §  40. 

P.  S.  172,  §  28. 

R.  L.  178,  §  27. 

13  Pick.  477. 

10  Met.  138. 

13  Met.  200. 

4  Gray,  468, 

486. 

3  Allen,  357. 

101  Mass.  409. 


Section  27.     The  officer  authorized  to  serve  the  execution  shall  make  1 

the  sale  by  public  auction  to  the  highest  bidder,  and  convey  by  deed  to  2 

the  purchaser  all  the  debtor's  title  to  the  land  or  rights  so  sold.    Such  3 

deed  shall,  if  the  execution  with  the  return  thereon  has  been  returned,  4 

be  valid  as  against  the  debtor  or  any  person  claiming  under  him  who  5 

has  actual  notice  thereof  and,  if  recorded  mthin  tliree  months  after  6 

such  sale  in  the  registry  of  deeds  for  the  county  or  district  where  the  7 

land  lies,  shall  be  valid  as  against  any  other  person.         no  Mass.  273.  8 


128  Mass.  427. 

129  Mass.  210. 


135  Mass.  65. 
143  Mass.  195. 


148  Mass.  501. 
150  Mass.  239. 


Notice  of  sale. 
1798,  77,  I  4. 
R.  S.  73.  §  39. 
G.  S.  103,  §  41. 
P.  S.  172.  §  29. 
R.  L.  178,  §  28. 
1912,  3G0. 
1915,  127. 
12  Mass.  513. 
1  Pick.  351. 
8  Cush.  35. 
128  Mass.  427. 
132  Mass.  457. 
136  Mass.  414. 
155  Mass.  451. 


Section  28.     The  officer,  thirty  days  at  least  before  the  sale,  shall  1 

deliver  to  the  debtor,  if  found  within  his  precinct,  a  written  notice  of  2 

the  time  and  place  of  sale  and  shall  post  such  a  notice  in  a  public  place  3 

in  the  town  where  the  land  lies  and  also  in  two  adjoining  towns,  if  there  4 

are  so  many  in  the  county.    The  officer  shall  also  publish  such  a  notice  5 

once  in  each  of  three  successive  weeks,  the  first  publication  to  be  not  less  6 

than  twenty-one  days  before  the  day  of  sale,  in  a  newspaper  published  7 

in  the  town  where  the  land  lies.                             159  Mass.  432.  8 

163  Mass.  147.  164  Mass.  209.  210  Mass.  588.  228  Mass.  385,  417. 


Adjournment. 
1798,  77,  §  4. 
R.  S.  73,  §  40 
G.  S.  103,  §  42. 
P.  S.  172,  §  30. 
R.  L,  178,  §  29. 
4  Pick.  354. 
101  Mass.  409. 
179  Mass.  456. 


Section  29.  If,  at  the  time  appointed  for  the  sale,  the  officer  con- 
siders it  for  the  interest  of  all  persons  concerned  to  postpone  it,  he  may 
adjourn  it  for  not  more  than  seven  days,  and  so  from  time  to  time  until 
the  sale  is  completed,  giving  notice  of  every  such  adjournment  by  a  public 
declaration  thereof  at  the  time  and  place  previously  appointed  for  the 
sale. 


Adjournment 
by  court. 
1SS4,  175. 
R.  L.  178,  I  30. 


Section  30.     Section  forty  of  chapter  two  hundred  and  thirty-five 
relative  to  adjournment  by  order  of  court  shall  apply  to  such  sales. 


SUSPENSION   OF   LE^"Y. 


Suspension 
of  levy. 
R.  S.  97,  §  34. 
G.  S.  133,  §  50. 
P.  S.  171,  §  52. 
1887,407,  §  1. 
R.  L.  178,  §  31. 


Section  3L  If  land  has  been  seized  on  execution  and  further  service 
thereof  is  suspended  by  reason  of  a  prior  attachment  or  seizure  of  the 
same  land,  the  officer  making  the  later  seizure  shall  cause  a  record  thereof 
to  be  made  in  the  same  manner  as  an  attacliment  of  land  on  mesne 


Chap.  2.36.]  levy  of  execxjtions  on  j^akd.  2543 

5  process  is  recorded.    Such  record  shall  be  sufBcient  notice  of  said  seizure,  3  Met.  245, 

6  and  the  Ie\'y  on  such  land  shall  be  considered  as  having  been  made  at  9?  Mass.  339. 

7  the  time  of  such  seizure  if  such  record  is  made  within  three  days  there-  ^^^  ^^''^^^  ^^°' 

8  after;  otherwise,  at  the  time  when  said  record  is  made.    The  land  shall 

9  remain  bound  by  such  seizure  until  set  off  or  sold  in  whole  or  in  part 

10  under  the  prior  attachment  or  seizure  or  until  that  attachment  or  seizure 

11  is  dissolved. 

1  Section  32.     If  land  is  set  off  or  sold  in  part  under  a  prior  attachment  Proceedings 

.«,  ,  .  'TiiiTi  after  dissolu- 

2  or  seizure,  or  if  that  attachment  or  seizure  is  dissolved,  the  land  or  such  tion  of  prior 

3  part  thereof  as  remains  undisposed  of  shall  continue  bound  for  thirty  r.  s.  97.  §  35. 

4  days  thereafter  by  the  seizure  on  execution,  and  service  of  the  execution  p.'  s.'  171,'  §  sa.' 

5  may  be  completed  as  if  the  land  had  been  first  seized  thereon  within  ^^l'  \%[  1 12. 

6  said  thirty  days,  although  the  return  day  thereof  has  passed.  1^^  ^^^^-  ^■ 

RIGHT   OF   REDEMPTION. 

1  Section  33.     If  land  or  rights  have  been  taken  and  set  off  on  execu-  Right  of 

2  tion,  the  debtor  may  within  one  year  after  the  levy  or,  if  such  land  or  inl-fs.'s"'?  i. 

3  rights  have  been  sold  on  execution,  within  one  year  after  such  sale  or  i7S3757?'§V' 

4  within  the  time  and  upon  the  terms  provided  in  section  forty-seven,  ifg|  77^  5  5 

5  redeem  the  same  by  paying  or  tendering  to  the  creditor  or  purchaser,  R'|'7|^i|24 

6  as  the  case  may  be,  the  amount  for  which  they  were  so  set  off  or  sold,  33. 42.  s'e. 

7  with  interest  thereon  from  the  time  of  the  levy,  all  amounts  paid  for  §§26, 35,' 44. 

8  lawful  taxes  and  assessments,  reasonable  expenses  incurred  for  repairs  1874,  iss,  §  3. 

9  and  improvements  and,  in  case  of  levy  by  set-off,  all  amounts  lawfully  ^^i'lyi; 

10  paid  on  account  of  any  mortgage  or  other  lien  recoverable  under  section  |j5  ^'^^g  5  33 

11  forty-eight,  and  deducting  from  such  amount  in  each  case  the  rents  and  jh'^''  Jf^- 

12  profits  received  or  which  might  have  been  received  by  the  creditor  or  2Cu9h.  i4i. 

13  purchaser  and  with  which  he  is  lawfully  chargeable.    The  creditor  or  lee  mTs's.  407. 

14  purchaser  shall  thereupon  deliver  to  the  debtor  a  deed  of  release,  pre-  222 1\IZ'.  III'. 

15  pared  by  the  debtor  or  at  his  ex-pense,  of  the  land  or  rights  so  taken  and 

16  set  off  or  sold. 

1  Section  34.    The  debtor  may  in  all  cases  cause  the  amount  due  for  Ascertainment 

2  redemption  to  be  ascertained  at  his  own  expense  by  three  justices  of  the  ?7l3™57"§  3"^' 

3  peace  in  the  manner  following:   one  of  the  justices  shall  be  chosen  by  §:  s!  103,^^27. 

4  the  debtor,  one  by  the  creditor,  and  one  by  the  two  first  chosen;  or  if  E  ?•  V,i'|^^,- 

1  7  !•■  1  1  111  R.  L.  178,  s  34. 

5  the  creditor  neglects  to  choose  one,  the  justice  chosen  by  the  debtor 

6  shall  appoint  the  other  two.     After  a  hearing  before  the  three  justices, 

7  they  or  two  of  them  shall  make  and  sign  a  certificate  of  the  amount 

8  which  they  adjudge  to  be  due  for  the  redemption  of  the  land,  which 

9  certificate  shall  be  final  and  conclusive  between  the  parties.     A  tender 

10  by  the  debtor  of  the  amount  so  adjudged  to  be  due  shall  be  a  sufficient 

11  tender  notwithstanding  any  previous  tender. 

1  Section  35.    If  the  creditor  or,  in  case  of  a  sale,  the  purchaser  pays  Redemption 

2  the  debt  due  on  a  mortgage  to  which  the  land  levied  on  is  subject,  the  pLS  b"^"^" 

3  judgment  debtor  may  redeem  the  mortgage  from  the  creditor  or  pur-  pu^hase" 

4  chaser  at  the  time  when,  and  upon  the  terms  upon  which,  he  might  have  Jf  ^|'7|^'  ^  '• 

5  redeemed  it  from  the  mortgagee  if  no  execution  had  been  levied.     If  the  §§  34-36, 43. 

6  debtor  does  not  so  redeem  the  mortgage,  the  creditor  or  purchaser  shall  §'§  36-3s,'45. 

7  hold  the  land  as  an  assignee  of  the  mortgage  and  free  from  any  right  §§  34-36! 


2544 


LE\T   OF  EXECUTIOXS   ON  L.VND. 


[CiLiP.  236. 


E.  L.  178,  §  35. 
22  Pick.  390. 


of  redemption,  notwithstanding  the  debtor  has  redeemed  or  offered  to  S 
redeem  the  right  taken  on  the  execution.  If  the  debtor  does  not  within  9 
one  year  after  the  levy  redeem  the  right  taken  on  the  execution,  the  10 
creditor  or  purchaser  shall  hold  the  land  against  the  debtor,  notwith-  11 
standing  the  debtor  has  redeemed  or  offered  to  redeem  the  mortgage.       12 


S^i|ht'to°°  Section  36.     Rights  of  redeeming  land  sold  for  the  payment  of  taxes  1 

tax^saTe'"^"™      ^^  Other  asscssmcuts  may,  if  sold  on  execution,  be  redeemed  in  the  same  2 

1881,39.  manner  as  rights  of  redeeming  mortgaged  land  so  sold.  3 

p.  S.  172,  §  37.  R.  L.  178.  §  36. 


Redemption  of 
life  estate  if 
levy  is  on 
rents  and 
profits. 
1783,  57,  §  3. 
R.  S.  73,  §  30 
G.  S.  103,  §  32. 
P.  S.  172.  §  38. 
R.  L.  178,  §  37. 


Section  37.  If  an  execution  is  levied  on  rents  and  profits  of  a  life 
estate,  the  debtor  may,  at  any  time  before  the  debt  with  interest  thereon 
is  fully  satisfied,  redeem  the  same  by  paying  or  tendering  to  the  creditor 
the  amount  then  due  to  him;  and  the  proceedings  relative  to  such  re- 
demption shall  be  the  same  as  are  provided  for  the  redemption  of  other 
land. 


Remedy  if 
creditor  does 
not  release. 
1783,  57,  §  3. 
R.  S.  73, 
§§  26,  44. 
G.  S.  103, 
§§  28,  46. 
P.  S.  172,  §  39. 
R.  L.  178,  §  38. 
19  Pick.  467. 


Section  38.  If  the  debtor  tenders  the  amount  justly  due  for  redemp- 
tion, and  the  creditor  or,  in  case  of  a  sale,  the  purchaser  does  not  within 
seven  days  after  the  tender  release  the  land  as  before  provided,  the 
debtor  may  recover  it,  with  costs,  in  a  vrvit  of  entry  on  his  own  seisin 
against  the  creditor  or  purchaser  as  a  disseisor;  but  before  judgment 
therein  is  entered  for  him,  he  shall  bring  into  court  for  the  use  of  the 
creditor  or  purchaser  the  amount  so  tendered. 


1 
2 

i 

4 
5 
6 

7 


Suit  to 
redeem. 
R.  S.  73, 
§§  27,  44. 
G.  S.  103. 
5§  29,  46. 
P.  S.  172,  S  40. 
R.  L.  178,  §  39. 
2  Cush.  141. 


Section  39.    The  debtor  may,  within  the  year  before  limited  for  1 

redemption  and  irrespective  of  any  tender,  bring  in  the  supreme  judicial  2 

or  the  superior  court  in  the  county  where  the  land  lies,  instead  of  a  3 

writ  of  entry,  a  suit  in  equity  for  redemption,  under  the  two  follow-  4 

ing  sections.  152  Mass.  17.  5 


Proceedings. 
R.  S.  73, 
§§  28,  44. 
G.  S.  103, 
5§  30,  46. 
P.  S.  172,  §  41. 
R.  L.  178,  §  40. 


Section  40.     The  debtor  shall  in  his  bill  offer  to  pay  the  amount  1 

found  due  for  redemption  and  may  set  forth  any  tender  he  has  made.  2 

The  court  shall  determine  the  amount  due,  unless  it  has  been  already  3 

ascertained  under  section  thirty-four,   and  shall  require  the  debtor,  4 

within  such  time  as  it  may  order,  to  deposit  with  the  clerk  for  the  use  5 

of  the  creditor  or  purchaser  the  amount  due  for  redemption.     Upon  the  6 

debtor's  complying  with  the  order,  he  shall  be  entitled  to  judgment  and  7 

execution  for  seisin  of  the  land  as  at  common  law.  8 


Costs. 

R.  S.  73, 

§§  29,  44. 

G.  S.  103, 

§§31,46. 

P.  S.  172, 

§42. 

R.  L.  178, 

§41. 

130  Mass 

201. 

218  Mass 

120. 

222  Mass 

303. 

Section  41.    The  court  may  award  costs  to  either  party,  but  the  1 

creditor  or  purchaser  shall  not  be  required  to  pay  costs,  unless  it  appears  2 

that  he  has  unreasonably  neglected  to  render,  when  requested,  a  just  3 

and  true  account  of  the  amount  due  on  the  judgment,  of  the  money  4 

expended  in  repairing  and  improving  the  land  and  of  the  rents  and  5 

profits  thereof;   or  unless  it  appears  that  a  sufficient  amount  was  ten-  6 

dered  to  him  for  the  redemption  of  the  land,  and  that  he  neglected  for  7 

seven  <lays  thereafter  to  execute  and  deliver  a  release  thereof  as  before  8 

required.     If  the  creditor  or  purchaser  has,  before  the  commencement  9 

of  the  suit,  tendered  such  a  deed  of  release  and  alleges  such  tender  and  10 

brings  the  deed  into  court  to  be  delivered  to  the  debtor,  he  shall  recover  1 1 

costs.                        '  12 


Ch.'V.P.  236.]  LEVY  OF  EXECUTIONS   ON  LAND.  2545 

1  Section  42.     Everything  required  in  this  chapter  to  be  done  by  or  Rights  of 

2  to  a  debtor  or  by  or  to  a  creditor  or  purchaser  relative  to  the  redemp-  or  purchaser  °' 

3  tion  of  an  estate  taken  and  set  off  or  sold  on  execution  may  be  done  by  "S  by'^hfr 

4  or  to  his  heirs,  assigns,  executor,  administrator  or  by  or  to  any  person  ^"'g'T^g"- 

5  lawfully  claiming  under  him  or  them,  in  like  manner  and  with  like  effect  §§  i^;j,l- 

6  as  if  done  by  or  to  him;  except  that  it  an  executor  or  admmistrator  re-  §§6o. si. 

7  covers  the  land,  the  recovery  shall  operate  only  as  a  discharge  of  the  lien  « 43, 44' 

8  or  encumbrance  on  the  land,  and  the  heir  or  other  person  entitled  thereto 

9  shall  be  seized  thereof  under  his  title. 


R.  L.  178,  §  42. 


GENERAL   PROVISIONS. 

1  Section  43.     A  levy  by  set-off  or  sale  shall  be  considered  as  made  at  ^|°  ^^'■'y 

2  the  time  wlien  the  land  is  taken,  and  the  subsequent  proceedings  and  R  s.  73, 

3  the  officer's  return  thereof  shall  be  valid,  although  made  after  the  return  g.s.ios', 

4  day  or  after  the  removal  or  other  disability  of  the  officer.  *'*  ' 

p.  S.  172,  §  45.  3  Met.  245.  13  Allen,  262. 

1896,  464.  9  Met.  23.  132  Mass.  332. 

R.  L.  178,  §  43.  2  Allen,  562.  155  Mass.  451. 

11  Mass.  153.  9  Allen,  147. 

1  Section  44.     Notice  to  the  debtor  under  this  chapter  may  be  served  ^"'i,™'  ^°"^ 

2  upon  him  personally  or  left  at  his  last  and  usual  place  of  abode.    If  the  p^g''ii°2^-5  4r, 

3  debtor  does  not  reside  within  the  precinct  of  the  officer  serving  the  ex-  r. l. i78. §44. 

4  ecution,  and  is  not  found  by  him  therein,  such  officer  shall,  in  addition  143  mS  195 

5  to  any  other  service  recjuired  by  law,  send  by  mail,  postpaid  and  ad-  23iMass!25*' 

6  dressed  to  the  debtor  at  his  residence  as  described  in  the  execution,  a 

7  copy  of  any  notice  service  of  which  upon  him  would  be  required  if  he 

8  were  found  within  such  precinct. 

1  Section  45.     The  fees  and  charges  of  le\ying  an  execution  shall  be  Fees  and 

2  added  to  and  considered  as  part  of  the  amount  due  on  the  execution,  in  to'debt."'^'^'"' 

3  the  setting  off  or  sale  of  land  on  execution,  in  the  redemption  thereof  §■  f  103^/49 

4  and  in  everything  relative  to  the  proceedings  under  the  execution.  ^-  s- 172,  §  47. 

R.  L.  178,  §  45.  2  Allen,  562.  9  Allen,  147. 

1  Section  46.     A  levy  upon  lands  in  different  counties  or  upon  rights  Levy  upon 

2  of  redemption  in  such  lands,  under  the  same  execution,  may  be  made  by  ent  coimties^^' 

3  an  officer  of  any  of  such  counties.  g.  s.  loa,  §  47. 

p.  S.  172,  §  48.  R.  L.  178,  §  46.  1914,  318. 

1  Section  47.     If  an  execution  is  levied  on  land  or  rights  the  record  Action  for  pos- 

,,  I'lpiii  I'l  p  1  1  session  to  be 

2  title  to  which  fraudulently  stands  in  the  name  or  a  person  other  than  brought,  when. 

3  the  debtor  and  such  other  person  is  in  possession  claiming  title  thereto,  i855,'453' 

4  the  levy  shall  be  void  unless  the  judgment  creditor  to  whom  the  land  fsVl,  isl,  ^  ^^' 

5  is  set  off  or  the  purchaser  at  the  sale  or  a  person  lawfully  claiming  under  iItr',  235. 

6  either  of  them  commences  his  action  to  recover  possession  thereof  within  J'^l'^  ^^^'  ^  ^^^■ 

7  one  year  after  the  return  day  of  the  execution;  and  such  land  or  rights  R.  l' i78,  §  47. 

.3  Allen  508 

8  so  set  off  or  sold  may  be  redeemed  by  the  defendant  in  said  action  or  6  Aiien!  401! 

9  by  any  person  lawfully  claiming  under  him,  M'ithin  three  months  from  12  Alien!  591! 

10  the  date  of  the  judgment  recovered  in  said  action  for  possession,  in  the  iio^Ma"'s^273. 

11  manner  and  according  to  the  terms  and  conditions  provided  in  section  {39  Mass' 157 

12  thirty-three  upon  payment  of  the  costs  of  such  action  for  possession.  ^^^  Mass.4S9. 

149  Mass.  152.  215  Mass.  76.  230  Mass.  197. 

189  Mass.  390.  225  Mass.  217.  231  Mass.  563. 

201  Mass.  236.  228  Mass.  385.  234  Mass.  25. 


2546 


LEVY  OF  EXECUTIONS   ON  hAND. 


[Cblvp.  236. 


Levy  on  land 
subject  to  lien 


P.  S.  172.  §  50. 
R.  L.  178,  §  48. 


Section  48.  If,  after  an  execution  has  been  levied  by  setting  off 
e'V^s^'I's'"'^  land,  there  proves  to  be  a  mortgage  or  other  lien  on  the  land  or  an  estate 
G.  s.  103, 1 34.  of  homestead  therein,  not  known  or  allowed  for,  or  not  fully  allowed  for, 
by  the  appraisers,  the  creditor  shall  nevertheless  be  entitled  to  hold  the 
land  by  force  of  the  execution,  except  the  estate  of  homestead,  as  against 
the  debtor,  and  may  recover,  in  a  new  action  against  the  debtor,  the 
amount  of  the  homestead  estate  or  the  amount  which  he  may  lawfully 
pay  on  account  of  such  mortgage  or  other  lien,  or  so  much  thereof  as  has 
not  been  deducted  and  allowed  for  in  the  estimate  of  the  appraisers. 


Levy  on  right 
of  redeenaing 
land  taken  on 
execution. 
R.  S.  73.  §  48. 
G.  S.  103,  §  52. 
1877,  176. 
P.  S.  172,  §  51. 
R.  L.  178,  §  49. 
124  Mass.  330. 
234  Mas3.  25. 


Section  49.     The  right  of  redeeming  land  taken  on  execution  may  1 

be  taken  and  sold  on  another  execution,  in  like  manner  as  the  right  of  2 

redeeming  mortgaged  land  may  be  taken  and  sold;   and  the  debtor  and  3 

those  claiming  under  him  may  redeem  the  right  sold  under  such  second  4 

execution  in  like  manner  as  if  the  right  so  sold  had  been  a  right  of  re-  5 

deeming  mortgaged  land.    All  proceedings  in  levying  such  second  execu-  6 

tion,  the  redemption  of  the  right  sold  under  it  and  all  the  rights  and  7 

obligations  of  the  several  parties  relative  to  such  levy  and  redemption  8 

shall  be  substantially  the  same  as  if  the  right  taken  and  sold  on  such  9 

second  execution  had  been  a  right  of  redeeming  mortgaged  land.  10 


Waiver  of  le\-y. 
R.  S.  73.  §  20. 
G.  S.  103,  §  21. 
P.  S.  172.  §  52. 
R.  L.  178,  §  50. 


Section  50.     If,  before  an  execution  which  has  been  levied  on  land  1 

is  returned  and  recorded,  it  appears  that  there  is  a  defect  or  error  in  the  2 

proceedings  which  would  defeat  the  levy,  or  that  the  land  levied  upon  3 

cannot  be  held  thereby,  the  creditor  may  waive  the  levy,  which  shall  4 

thereupon  be  void,  and  resort  to  any  other  remedy  for  the  satisfaction  5 

of  his  judgment.  6 


Scire  facias  on 
invalid  iev>'. 
1785,  6. 
R.  S.  73.  §  21. 
G.  S.  103.  I  22. 
1863,  125,  §  1. 
P.  S.  172,  §  53. 
R.  L.  178,  5  51. 
19  Pick.  433. 

11  Met.  233. 

12  Met.  449. 
2  Grav,  326. 
10  Gray,  29. 
143  Mass.  365. 
150  Mass.  239. 
155  Mass.  320. 
206  Mass.  408. 
222  Mass.  480. 


Section  51.  If,  after  the  return  of  such  execution,  it  appears  to  the  1 
creditor  that  the  land  levied  on,  or  any  part  thereof,  cannot  be  held  2 
thereby,  he  may  take  out  from  the  court  from  which  the  execution  issued  3 
a  writ  of  scire  facias  requiring  the  debtor  to  appear  and  show  cause  why  4 
another  execution  should  not  be  issued  on  the  same  judgment,  and  the  5 
\\Tit  may  issue  although  there  is  a  subsequent  judgment  for  a  part  6 
thereof  not  satisfied  by  the  le\'y.  If  the  debtor,  after  being  duly  sum-  7 
moned,  does  not  show  sufficient  cause  to  the  contrary,  the  levy  of  the  8 
former  execution  may  be  set  aside  and  another  execution  issued  for  the  9 
amount  then  due  on  the  original  judgment  and  not  included  in  a  subse-  10 
quent  judgment,  but  without  interest  or  further  costs.  11 


Procedure. 
G.  S.  103,  §  23. 
P.  S.  172.  §  54. 
R.  L.  178,  §  52. 


Section  52.  If  at  the  hearing  the  court  finds  that  a  part  only  of  the  1 
land  levied  on  is  held  thereby,  a  warrant  may  be  issued,  if  the  creditor  2 
so  requires,  to  an  officer  qualified  to  serve  the  execution,  requiring  him  3 
to  cause  the  part  held  thereby  to  be  appraised  at  its  value  when  taken.  4 
The  officer  shall  thereupon  cause  such  appraisal  to  be  made  in  the  manner  5 
required  upon  the  original  levy,  and,  upon  return  of  said  warrant,  the  6 
levy  may  be  set  aside  so  far  as  it  relates  to  the  part  not  held  thereby,  7 
and,  if  duly  recorded,  shall  be  valid  as  to  the  remaining  part.  A  new  8 
execution  may  thereupon  be  issued  for  the  difference  between  the  amount  9 
of  the  original  appraisal  of  the  land  levied  on  and  the  amount  of  the  10 
appraisal  of  the  part  held  by  the  levy,  without  interest  or  costs.  If  the  11 
court  finds  that  the  creditor  in  proceedings  under  this  or  the  preceding  12 
section  had  no  just  cause  for  such  action,  the  debtor  shall  recover  costs.  13 


Chap.  236.]  le\t:  of  executions  on  land.  2547 

1  Section  53.     Land  of  a  deceased  person  which  has  not  been  sold  and  ^P2'  °"  '^.""^ 

2  conveyed,  bv  deed  duly  recorded,  by  the  executor  or  administrator  of  1758-9. 37,  §  i. 

.  1783  32  §  7 

3  such  deceased  person  under  a  Hcense  from  the  probate  court  or  under  r.  s.' 73.' §  49. 

4  a  power  of  sale  contained  in  the  will  of  the  deceased,  may  be  taken  on  p.'  s.'  172.'  §  ss.' 

5  execution  on  a  judgment  against  his  executor  or  administrator  for  the  ^14;  Hf,  ^  ^^' 

6  debt  of  the  deceased,  for  the  costs  of  the  action  against  him  if  the  execu-  i3H'Mlsg^249 

7  tor  or  administrator  has  not  appeared  therein,  and  for  the  fees  and  jgj  flags' ?|?' 

8  charges  of  the  le\y,  and  such  land  shall  be  appraised  and  set  off  or  sold, 

9  in  like  manner  as  if  execution  had  been  levied  against  the  deceased  in 
10  his  lifetime. 

1  Section  54.     Land  taken  as  provided  in  the  preceding  section  may  Redemption 

2  be  redeemed  by  the  executor,  administrator,  heir  or  devisee  of  the  itss"?  sTI  7°°' 

3  deceased,  or  by  any  person  lawfully  claiming  under  him  or  them,  in  like  §§s6.  si. 

4  manner  as  if  the  land  had  been  taken  on  an  execution  against  the  de-  f^ 54'55.' 

5  ceased  in  his  lifetime,  and  thereafter  shall  not  be  again  taken  on  execu-  Fsfg^jf' 

6  tion  for  any  other  debt  of  the  deceased,  nor  be  in  any  way  liable  therefor,  k-  l-  i78,  §  54. 

191  Mass.  187. 

1  Section  55.     A  surviving  husband  shall  be  entitled  to  curtesy  and  do"werTn^iand 

2  a  widow  to  dower  in  land  taken  on  execution  from  his  wife  or  her  hus-  t^^en  on 

nil  "1  ■  •       1  •  1  1   •      execution. 

3  band,  respectively,  or  on  execution  upon  a  judgment  against  her  or  his  c.  l.  42.  §  1 

4  executor  or  administrator,  respectivelv,  in  like  manner  as  if  the  land  had  1783,57',  §'4."' 

T>       0      "TQ       K     CO 

5  been  conveyed  by  the  wife  or  husband  in  her  or  his  lifetime  without  release  g!  s!  103.  §  57. 

6  of  curtesy  by  him  or  dower  by  her.  p.  s.  172,  §  59.  r.  l.  i78,  §  55. 

REFERENCES. 

§  28.     Relative  to  notices  in  newspapers,  Chap.  4,  §  6,  cl.  8. 

§  53.     Limitation  of  time  within  which  levy  can  be  made  against  land  of  a  de- 
ceased person,  Chap.  202,  §  20. 


2548 


WEITS   OF  ENTRY. 


[Chap.  237. 


TITLE    III. 

REMEDIES   RELATING   TO   REAL   PROPERTY. 

Chapter  237.  Writs  of  Entry. 

Chapter  238.  Writs  of  Dower. 

Chapter  239.  Summary  Process  for  Possession  of  Land. 

Chapter  240.  Proceedings  for  Settlement  of  Title  to  Land. 

Chapter  24L  Partition  of  Land. 

Chapter  242.  Waste  and  Trespass. 

Chapter  243.  Action.?  for  Private  Nuisances. 

Chapter  244.  Foreclosure  and  Redemption  of  Mortgages. 

Chapter  245.  Informations  by  the  Commonwealth. 


CHAPTER    237. 

WRITS   OF  ENTRY. 


.Segt. 

requisites. 

1.  Estates  recover.able. 

2.  Writ  of  entry  against  commonwealth. 

3.  Form  of  declaration. 

4.  Proof  of  actual  entry  not  required. 

5.  Manner  of  prosecuting  action. 

6.  Who  may  be  deemed  a  disseisor. 

7.  Effect  of  actual  ouster. 

S.  Joinder  or  separation  of  actions. 

PLEADINGS   and   EVIDENCE. 

9.  Pleadings  and  evidence. 

10.  Manner  of  making  certain  defences. 

1 1 .  Part  recoverable. 


D.VMAGES   FOR   DEMANDANT. 

12.  Damages  recoverable  by  demandant. 

13.  Measure  of  damages. 

14.  Use  of  improvements  not  element  of 

damages. 

15.  Limitation  of  tenant's  liability. 


ALLOWANCE  TO  TENANT. 

16.  Allowance  to  tenant  for  improvements. 

17.  Effect  of  possession  under  supposedly 

good  title. 

18.  Manner  of  claiming  allowance. 

19.  Time  of  recording  suggestion. 

20.  Limitation  of  allowance. 


Sect. 

assessment  of  damages  and  allowance. 

21.  Assessment  by  court.     Postponement. 

22.  Assessment  by  jury.     Postponement. 

23.  Resumption   of   procedure   for   assess- 

ment by  jury. 

24.  Waiver  of  claim  for  trial  by  jury. 

25.  Assessment  by  assessors. 

SET-OFF. 

26.  Set-off  of  improvements  against  dam- 

ages. 

27.  Effect  of  excess  of  improvement  over 

rents  and  profits. 

28.  Payment  of  balance  due  tenant. 

29.  Writ  of  seisin  before  assessment. 

30.  Collection  of  balance  due  tenant. 

ELECTION  BY  DEMANDANT. 

31.  Determination  of  value  of  estate  with- 

out improvements. 

32.  Election  to  relinquish  estate. 

33.  Tenant  to  hold  estate  if  he  pays  such 

value. 

34.  Effect  of  non-pajTncnt. 

35.  Remedy  on  failure  of  title. 

DEATH  OP  PARTY  AFTER  JUDGMENT. 

36.  Effect  of  death  of  parties  on  manner  of 

payment. 

37.  .Against  whom  writ  of  seisin  sliall  run. 


Chap.  237.] 


WRITS   OF  ENTRY. 


2549 


Sect. 

life  tenant  or  remainderman. 

38.  Recovery  by  life  tenant  from  remain- 

derman. 

39.  Manner  of  determining  and  recovering 

amount. 

40.  Limitation  of  amount  recoverable. 

41.  Limitation  of  time  for  bringing  action. 


Sect. 

execution  to  be  recorded. 

42.  Execution  for  possession  to  be  recorded. 

APPLICATION  OF  CHAPTER. 

43.  Demandant's     remedy     against     tres- 

passers not  affected. 

44.  Certain    provisions    not    to    apply    to 

actions  by  mortgagees. 


Section  1. 


REQUISITES. 

All  estates  of  freehold  in  fee  simple,  fee  tail  or  for  life  Estates 


2  may  be  recovered  by  a  writ  of  entry  upon  disseisin,  unless  a  different  ks^icu,  §'i- 


3  action  is  provided. 

R.  L.  179,  i 


G.  S.  134,  §  1. 

13  Allen,  286. 


P.  S.  173,  §  1. 

220  Mass.  197. 


1  Section  2.     A  writ  of  entry  may  be  prosecuted  against  the  common-  writ  of  entry 

2  wealth  under  this  chapter.  1913,  624.  236  Mass.  121.  monwealtT' 

1  Section  3.     The  demandant  shall  declare  on  his  own  seisin  within  Form  of 

2  twenty  years  then  last  past,  without  specifying  any  particular  day,  and  lyst^is!""' 

3  shall  allege  a  disseisin  by  the  tenant,  but  need  not  aver  a  taking  of  the  §f°/,'2.^" 

4  profits.    He  shall  set  forth  the  estate  which  he  claims  in  the  land,  whether  ^-^'  l^J-  ^  -■ 

5  in  fee  simple,  fee  tail  or  for  life,  and  if  the  latter,  whether  for  his  own  life  §§  1 3-       ^ 

6  or  for  the  life  of  another,  but  he  need  not  set  forth  the  original  gift,  devise  p.s.i73,'§  2.' 

7  or  other  conveyance  or  title  by  which  he  claims  the  estate.  3  Mass.  352.  " 

22  Pick.  283.  9  Allen,  370.  116  Mass,  117.  131  Mass.  179. 

6  Cush.  265.  97  Mass.  34.  124  Mass.  468.  141  Mass.  93. 

8  Allen,  61.  101  Mass.  188.  128  Mass.  458.  214  Mass.  546. 


1  Section  4.     The  demandant  need  not  prove  an  actual  entry  under  his  Proof  of  actual 

2  title,  but  proof  that  he  is  entitled  to  such  an  estate  as  he  claims  in  the  reqvured. 

3  land  and  that  he  has  a  right  of  entry  therein  shall  be  sufficient  to  prove  §:  s!  isli  I  a. 

4  his  seisin.    No  writ  of  entry  shall  be  maintained  unless  the  demandant  has  r.  f;  V79.1 3. 

5  at  the  time  of  commencing  his  action  a  right  of  entry  into  the  land  |'^^j'g''Q|j7- 

6  demanded. 


13  Allen,  346. 
102  Mass.  512. 


113  Mass.  318. 
130  Mass.  384. 


133  Mass.  201. 
137  Mass.  584. 


161  Mass.  91. 
217  Mass.  583. 


Section  5.     A  writ  of  entry  shall  be  prosecuted  in  the  same  manner  as  Manner  oi 
if  the  demandant,  at  the  time  of  commencing  the  action,  had  made  an  action."""^ 
actual  entry  on  the  land  demanded  and  had  been  immediately  ousted  §;  |;  Jg';  |  f_ 
by  the  tenant.    In  a  trial  upon  the  general  issue,  if  the  demandant  proves  ^  ^  ^^f^  i*^ 
that  he  is  entitled  to  the  estate  set  forth  in  the  declaration  and  that  he  i^iviasa. 472. 

9  Cusli,  427. 

6  had  a  right  of  entry  on  the  day  when  the  action  was  commenced,  he  shall  102  Mass~3'74, 

7  recover  the  land  unless  the  tenant  proves  a  better  title  in  himself.  139  Mass.  244. 

155  Mass.  461.  220  Mass.  197. 


1  Section  6.     A  person  in  possession  of  land  demanded  in  a  writ  of  ^"^^I'l  ^^ 

2  entry,  claiming  an  estate  of  freehold  therein,  may  be  considered  as  a  i'^y ''',o''i  5  g 

3  disseisor  for  the  purpose  of  trying  the  right,  irrespective  of  the  manner  g.  s.  134]  §  5. 

4  of  his  original  entry  therein. 

p.  S.  173,  §5.  R.  L.  179,  §  5.  99  Mass.  7,  110  Mass.  419. 


1  Section  7.     If  the  person  in  possession  has  actually  ousted  the  de-  Effect  of 

2  mandant  or  withheld  from  him  the  possession  of  the  land,  h^  may,  at  r.  sI'ioiTs". 


2550 


WRITS   OF  ENTRY. 


[Chap.  237. 


p' I' 173' 1 1'    ^^^  election  of  the  demandant,  be  considered  as  a  disseisor  for  the 
R- L- 179.  §  6.    purpose  of  trying  the  right,  although  he  claims  an  estate  less  than 

20  Pick.  458.        a    freehold.  12  Met.  154.  12  Cush.  ISS.  1  Gray,  416.  5 


2  Gray.  13.5. 
4  Allen,  150. 


99  Mass.  209. 
110  Mass.  419. 


124  Mass.  307. 
126  Mass.  327. 


154  Mass.  535. 
161  Mass.  91. 


3 

4 


Joinder  or 
separation 
of  actions. 
1783,  52,  §  3. 
1785,  62,  §  3. 


Section  8.  Joint  tenants  or  tenants  in  common  may  join  in  a  writ  1 
of  entry  for  the  recovery  of  land,  or  any  one  of  them  may  sue  alone  for  2 
his  share.  is28, 137,  §  3.  r.  s.  101,  §  10.  3 


G.  S.  134,  §  9. 
p.  S.  173.  §  7. 


R.  L.  179,  §  7. 
6  Gray,  428. 


97  Mass.  508. 
135  Mass.  231. 


141  Mass.  93. 
155  Mass.  461. 


Pleadings  and 
evidence. 
R.  S.  101,  §  9. 
G.  S.  134,  §  8. 
p.  S.  173,  §  8. 
R.  L.  179,  §  8. 
13  Mass.  439. 


PLEADINGS    AND    EVIDENCE. 


Section  9.     The  law  and  practice  relative  to  pleadings  and  evidence  1 

in  a  writ  of  entry  upon  disseisin,  as  heretofore  recognized  and  established,  2 

shall  continue  in  force,  except  as  altered  by  this  chapter  and  chapters  3 

one  hundred  and  eighty-five  and  two  hundred  and  thirty-one.  4 


2  Met.  293. 
4  Ciray,  53. 
6  Allen,  28. 


99  Mass.  7. 
104  Mass.  1. 
112  Mass.  S35. 


116  Mass.  577. 
123  Mass.  187. 
128  Mass.  458. 


139  Mass.  244. 
143  Mass.  195. 
208  Mass.  391, 


Manner  of  SECTION  10.     Nou-tcnure,    disclaimer,    several    tenancy    and    sole     1 

making  certain  i        i     ,    .  i  •  •  •  ,  ^ 

defences  tcuaucy  may  be  pleaded  in  abatement  or  given  in  evidence  under  the    2 

R  s.'ioi,'§  13.  general  issue,  but  the  party  shall  be  allowed  such  costs  only  as  accrue    3 
G.  s.'i34,'§  12.  after  the  filing  of  the  plea.  p.  s.  173,  §  9.  4 

R.  L.  179,  §  9.  4  Gray,  53.  13  Allen,  2.Sfi.  123  Mass.  187. 

2  Met.  293.  6  Gray,  107.  98  Mass.  500.  124  Mass.  307. 

12  Met.  154.  6  Allen,  28.  108  Mass.  232.  139  Mass.  244. 


Part  recover- 
able. 


Section  11.     The  demandant  may  recover  any  specific  part  or  un-     1 
G  I'  i3i'  1 10    di^'ided  portion  of  the  land  to  which  he  proves  a  sufficient  title,  although     2 


p.  s.  173,  §  10.    less  than  demanded  in  the  writ. 

R.  L.  179,  §  10.  2  Pick.  387. 


99  Mass.  7. 


Ill  Mass.  386. 


Damages  re- 
coverable by 
demandant. 
R.  S.  101,  §  14. 
G.  S.  134,  §  13. 
P.  S.  173.  §  12. 
R.  L.  179.  §  12. 
2  Met.  293. 
6  Cush.  265. 


D.\MAGES   FOR   DEMAND.\NT. 

Section  12.     If  the  demandant  recovers  judgment,  he  shall  recover  1 

in  the  same  action,  subject  to  the  limitations  provided  in  this  chapter,  2 

damages  for  rents  and  profits  of  the  land  from  the  time  when  his  title  3 

accrued  and  for  any  destruction  or  waste  of  the  buildings  or  other  prop-  4 

ertv  for  which  the  tenant  is  liable.  5 


4  Gray,  53. 
105  iiass.  328. 
Ill  Mass.  386. 


114  Mass.  140. 
124  Mass.  307. 
128  Mass.  45S. 


150  Mass.  535. 
212  Mass.  135. 
214  Mass.  329. 


Measure  of 
damages. 
R.  S.  101,  §  16. 
G.  S.  134,  §  15. 
P.  S.  173,  §  14. 
R.  L.  179,  §  14. 

103  Mass.  146. 

104  Mass.  1. 
114  Mass.  140. 


Section  13.  Rents  and  profits  for  which  the  tenant  is  liable  shall 
be  the  clear  annual  value  of  the  land  while  he  was  in  possession  thereof, 
after  deducting  all  lawful  taxes  and  assessments  on  the  land  paid  by 
him  and  all  necessary  and  ordinary  expenses  of  cultivating  the  land  or 
collecting  rents,  profits  or  income  thereof. 

179  Mass.  163.  198  Mass.  137. 


mentlJiot"™™'      Section  14.     lu  determining  rents  and  profits,  the  \-alue  of  the  use  1 

damfges"^        by  the  tenant  of  any  improvements  made  by  him  or  by  those  under  2 

R.  s.  101,  §  17.   ^vhom  he  claims  shall  be  excluded.                         g.  s.  134,  §  le.  3 

p.  S.  173,  §  15.  R.  L.  179,  §  15.  198  Mass.  137. 


Chap.  237.]  wkits  of  entry.  2551 

1  Section  15.    The  tenant  shall  not  be  liable  for  rents  and  profits  Limitation 

2  for  any  time  more  than  six  years  prior  to  the  date  of  the  vrrit  or  for  uabfii'ty'!  ^ 

3  waste  or  damage  committed  before  said  six  years,  unless  rents  and  §;  |  \°l]  |  {f 

4  profits  are  allowed  by  way  of  set-off  to  his  claim  for  improvements  R.L.Yyg^lVe. 

5  under  section  twenty-seven.  9  Cush.  427.  104  Mass.  1. 

ALLOWANCE  TO  TENANT. 

1  Section  16.     If  the  land  demanded  has  been  actually  held  and  4n°ntforiS- 

2  possessed  by  the  tenant  and  by  those  under  whom  he  claims  for  six  5'sg7™5°8^3 

3  years  next  before  the  date  of  the  writ,  he  shall,  if  judgment  is  against  g-  s-  loi,  §  19. 

4  him,  be  entitled  to  compensation  as  hereinafter  provided  for  the  value  p.'s.i73,'§  i7.' 

5  of  any  buildings  or  improvements  made  or  erected  on  the  land  by  him  e  Mass!  303. 

6  or  by  any  person  under  whom  he  claims. 

12  Mass.  329.  5  Pick.  140.  12  Cush.  458.  117  Mass.  360. 

13  Mass.  241.  15  Pick.  141.  15  Gray,  36.  190  Mass.  449. 
15  Mass.  291.  16  Pick.  260.  100  Mass.  177.  215  Mass.  324. 
17  Mass.  350.  7  Met.  310.  Ill  Mass.  386. 

1  Section  17.    The  tenant  shall  also  be  entitled  to  like  compensation  Effect  of  pos- 

2  although  the  land  has  not  been  so  held  for  six  years,  if  he  holds  it  under  supposedly '''^ 

3  a  title  which  he  had  reason  to  believe  good.  ^°°'^  *'"^- 

R.  S.  101.  §20.  12  Cush.  458.  117  Mass.  360,  393. 

G.  S.  134.  I  19.  10  Gray,  40.  128  Mass.  167. 

P.  S.  173,  §  18.  5  Allen,  319.  134  Mass.  82. 

R.  L.  179,  §  18.  8  Allen,  363.  179  Mass.  163. 

7  Met.  310.  100  Mass.  177,  270.  190  Mass.  449. 

10  Cush.  451.  109  Mass.  206. 

1  Section  18.     If  the  tenant  claims  allowance  for  improvements,  he  Manner  of 

2  shall  enter  on  the  record  a  suggestion  of  his  claim,  with  a  request  that,  allowance. 

3  if  judgment  is  rendered  for  the  demandant,  the  value  of  the  improve-  R^°J.'ioi,V2i. 

4  ments  may  be  ascertained  and  allowed  to  him.  G.  s.  134,  §  20. 

P.  S.  173,  §  19.  R.  L.  179,  §  19.  7  Met.  310.  11  Gray,  217. 

1  Section  19.     The  suggestion  shall  be  entered  at  the  same  sitting  Time  of 

2  with  the  plea,  unless  the  land  court  allows  it  to  be  entered  afterward;  su^est"on. 

3  but  if  judgment  is  rendered  for  the  demandant  without  a  plea,  the  court  a,  1.  Isl',  1 21] 

4  may  allow  it  to  be  entered  at  any  time. 

p.  S.  173,  §20.  R.  L.  179,  §20.  1904,  448,  |1. 

1  Section  20.    The  amount  allowed  for  improvements  shall  not  exceed  aiCwanre"  °^ 

2  the  amount  actually  expended  by  the  tenant  and  those  under  whom  he  g- 1-  Jo''  1 1^- 

3  claims,  nor  shall  it  exceed  the  amount  to  which  the  value  of  the  land  „  f'^llt" 

4  is  actually  increased  thereby  at  the  time  of  the  assessment. 

assessment  of  damages  and  allowance. 

1  Section  21.    Except  as  provided  in  sections  twenty-two  to  twenty-  Assessment 

2  four,  inclusive,  and  section  twenty-sLx,  if  there  is  a  trial  in  the  land  Postponement. 

3  court  it  shall  at  the  same  time  assess  the  amounts  due  the  demandant  rL*s.'i'oi', 

4  for  rents  and  profits-or  other  damages,  if  any,  and  shall  determine  the  32,3^3.^^'^*' 

5  amount  to  be  allowed  to  the  tenant  for  improvements,  if  any,  and  also,  ssf4^|2'23 

6  if  duly  required,  the  value  of  the  demandant's  estate,  unless,  on  its  ??'cf  U, 

7  own  motion  or  that  of  either  party,   made  before  its  finding  or  de-  §§"13, 21',  22, 

8  cision  on  the  title  is  recorded,  it  postpones  such  assessments  or  deter-  r.'l.  i79. 

9  mination  till  after  its  trial  of  the  title  and  its  finding  or  decision  thereon.  i904?'448',  ^^' 

1910,  560,  §  6.  8  Gray,  435.  212  Mass.  135.  214  Mass.  329.  ^^  '■  *• 


2552 


WRITS    OF   ENTRY. 


[Chap.  237. 


Assessment 
by  jury. 
Postponement. 
1807,  75,  §  3. 
R.  S.  101, 
§§  15,  23,  24, 
32,  33. 
G.  S.  134, 
§§  14,  22,  23, 
30,  31. 
P.  S.  173, 
«  13,21,22, 
30,  31. 
R.  L.  179, 
§§  13,  21,  2S. 
1904,  44S. 
§5  1,8. 
1910,  560,  §  6. 


Section  22.     If  trial  by  jury  shall  be  claimed  under  section  fifteen  1 

of  chapter  one  hundred  and  eighty-five,  and  if  issues  therefor  are  to  be  2 

framed  to  obtain  an  assessment  of  the  amounts  due  to  the  demandant  3 

for  rents  and  profits  or  other  damages,  or  a  determination  of  the  amount  4 

to  be  allowed  to  the  tenant  for  improvements,  or  of  the  value  of  the  5 

demandant's  estate,  the  land  court,  on  its  own  motion,  or  on  that  of  6 

either  party,  made  at  any  time  before  tlie  papers  required  by  said  section  7 

fifteen  have  been  entered  in  the  superior   court,  may  postpone   such  8 

issues  till  after  its  trial  of  the  title  and  its  finding  or  decision  thereon.  9 

In  such  case  said  court  shall  order  that  the  proccflure  provided  by  said  10 

section  fifteen  be  suspended  pending  its  further  order  under  the  follow-  1 1 

ing  section.  12 


Resumption  of 

procedure  for 

assessment 

by  jury. 

R  S.  101,  §  25. 

G.  S.  134,  §  23. 

P.  S.  173,  §  22. 

R.  L.  179,  §21. 

1904,  448, 

§§  1,8. 

1910,  560,  §  6. 


Section  23.     If  issues  are  postponed  under  the  preceding  section,  1 

and  if,  on  its  trial  of  the  title,  the  land  court  shall  make  a  finding  or  2 

decision  in  favor  of  the  demandant,  that  court  shall,  on  motion  of  either  3 

party,  made  before  its  finding  or  decision  on  the  title  is  recorded,  order  4 

that  the  procedure  provided  by  section  fifteen  of  chapter  one  hundred  5 

and  eighty-five  be  resumed,  except  that  the  papers  required  by  said  sec-  6 

tion  fifteen  shall  be  entered  in  the  superior  court  for  the  county  where  7 

the  land  lies  within  thirty  days  after  such  order.  8 


Waiver  of 
claim  for  trial 
by  jury. 
R.  S.  101,5  25 
G.  S.  134, 
P.  S.  173, 
R.  L.  179 
•  1904,  448, 
§§  1.8. 
1910,  560.  §  6, 


23. 

22 

,  §  sT. 


Section  24.  If  issues  have  been  postponed  under  section  twenty- 
two,  and  if,  after  a  finding  or  decision  in  favor  of  the  demandant  on  the 
title,  no  motion  under  section  twenty-three  is  seasonably  made,  that 
the  procedure  provided  by  section  fifteen  of  chapter  one  hundred  and 
eighty-five  be  resumed,  jury  trial  on  such  postponed  issues  shall  be 
deemed  to  be  waived,  and  such  assessment  or  determinations  shall  be 
made  as  provided  in  section  twenty-one  or  twenty-fi\e. 


Assessment 
bv  assessors. 
1807,  75,  §  3. 
R.  S.  101, 
§§  26,  32.  33 
G.  S.  134, 
§§24,30,31. 
P.  S.  173, 

23,  30,  31. 

L.  179, 

21,  28. 


R, 


Section  25.  In  cases  where  an  assessment  of  the  amounts  due  to 
the  demandant  for  rents  and  profits  and  other  damages,  or  a  determina- 
tion of  the  amount  to  be  allowed  to  the  tenant  for  improvements,  or  of 
the  value  of  the  demandant's  estate  is  to  be  made  by  the  land  court,  such 
assessment  or  determinations  may,  if  the  parties  consent,  be  made  by 
assessors  appointed  by  that  court.  i904. 44s,  §  1. 


set-off. 
pro'vemeLtr         SECTION  26.     If  an  allowance  is  made  to  the  tenant  for  improvements, 
damages  ^^  ^'^^''  ^^  ^^^  ^^  agaiust  the  amount  found  due  from  him  for  rents  and 

G  i  134'  I  ^fi    P''°fits  ^^^  other  damages;  and  the  demandant  shall  have  judgment  and 
p'.' s'  173,'  §  25.'  execution  for  the  balance,  if  any,  due  from  the  tenant  as  well  as  for  seisin 

R    L    179    §  ''.3 

190  Mass!  449'.  ■   of  the  land.  204  Mass.  448.  215  .\tas3.  324. 


on^proVl^"^"^  Section  27.  If  the  amount  found  due  to  the  tenant  for  improve- 
rentsand"^  ments  excceds  the  amount  due  from  him  for  rents  and  profits  accruing 
R°s'Toi  5  30  ■^^'thin  six  years,  he  shall  be  chargeable  with  rents  and  profits  accruing 
G.  s.  134!  §  28:  before  that  time,  so  far  as  necessary  to  balance  his  claim  for  iinprove- 
R.  L.  179,  §  24.  ments;  but  in  such  case  he  shall  not  be  liable  to  repay  rents  and  profits 
in  excess  of  the  ^■alue  of  the  improvements. 


Section  28.     The  demandant  shall,  except  as  provided  in  the  follow-     1 


Payment  of 

balance  due  •    •  p     i        i  i  n 

r"s°ioi  §  29    ^"S  section,  before  taking  out  execution  for  seisin  of  the  land,  pay  to  the    2 


Ca.\p.  237.]  WRITS  of  entry.  2553 

3  tenant,  or  for  his  use  to  the  recorder  of  the  land  court,  the  balance,  if  ^^^s.  m.  §  27. 

4  any,  due  the  tenant  for  improvements  after  deducting  the  amount  due  §§  V2^' 

5  from  the  tenant  for  rents  and  profits  and  other  damages;  but  the  tenant  R.'il  179,  §  25. 

6  or  person  claiming  under  him  shall  not  be  liable  for  rents  and  profits  io5Vats'.328. 

7  accruing  between  the  date  of  the  judgment  and  payment  by  the  demand- 

8  ant  of  said  balance. 

1  Section  29.     The  demandant  may  take  out  a  WTit  of  seisin  before  writ  of  seisin 

2  the  amounts  due  for  rents  and  profits  or  other  damages  or  for  improve-  ment^  "^^^^ 

3  ments  have  been  assessed;  but  if  the  tenant  has  entered  on  the  record  §§^i*;|°^' 

4  the  suggestion  of  a  claim  for  improvements,  the  demandant,  before  ^- 1;  Y^^  M|g 

5  taking  out  his  writ  of  seisin,  shall  furnish  such  security  or  pay  into  court 

6  such  amount  of  money  as  the  land  court  may  order,  to  secure  to  the 

7  tenant  the  payment  of  any  balance  found  due  him  for  such  improvements. 

1  Section  30.     If  a  balance  is  found  due  the  tenant  for  such  improve-  collection  of 

2  ments,  he  may  have  judgment  and  execution  therefor,  or  he  may  collect  ullnt  "^""^ 

3  the  same,  with  all  reasonable  costs  and  expenses  of  such  collection,  out  ^^i'l^s'^og 

4  of  the  security  furnished,  or  may  receive  it  out  of  the  money  paid  into  ^-  ^- 1'^'  5  27. 

5  court,  and  the  residue  thereof  shall  be  returned  to  the  demandant. 

ELECTION    BY   DEMAND.\NT. 

1  Section  31.     If  the  tenant  claims  an  allowance  for  improvements  Determination 

2  as  before  provided,  the  demandant  may,  by  an  entry  on  the  record,  eftate^without 

3  require  the  value  of  his  estate  in  the  land  demanded,  without  the  im-  '{sor^rb^iT"' 

4  provements,  to  be  determined  as  provided  for  the  assessment  of  rents  F^l^^ag' 

5  and  profits  and  improvements.     Such  value  shall  be  the  value  which,  ^.s  i34, 

6  at  the  time  of  assessment,  the  land  would  have  had  if  the  improvements  p.  s.  173,' 

7  had  not  been  made  by  the  tenant  or  a  person  under  whom  he  claims.        r.  l.'i79,  §  2s. 

11  Pick.  193,219. 

1  Section  32.     After  said  determination  of  value  the  demandant  may.  Election  to 

2  at  the  sitting  at  which  judgment  is  entered  for  him,  enter  upon  the  estate"^'' 

3  record  his  election  to  relinquish  his  estate  in  the  land  to  the  tenant  at  r^'s.'i^oI,^  ^' 

4  said  value;  and  upon  his  motion  for  further  time  in  which  to  make  such  l,^  i^"?^- 

I'll!  1  r»'i  lo4, 

5  election  the  land  court  may  postpone  the  entry  01  judgment  without  §§  32, 33. 

6  further,  costs  for  him. 

p.  S.  173.  §§  32,  33.  R.  L.  179,  §  29.  1904,  44S,  §  1. 

1  Section  33.     If   the   demandant   elects   to   relinquish   the   land   as  Tenant  to  hold 

2  before  provided,  the  tenant  shall  thenceforth  hold  all  the  estate  which  such' value. '"'^^ 

3  the  demandant  had  therein  at  the  date  of  the  writ,  if  he  pays  said  value  \lol'.  sJ  ^  ^' 

4  thereof  in  three  equal  instalments  on  or  before  the  expiration  of  one,  ssf7'3g' 

5  two  and  three  years,  respectively,  from  the  time  when  said  election  was  g.  S- 'i34. 

6  entered  on  the  record,  with  interest  therefrom  on  the  amount  unpaid.       ?■  s.  173,'  §  34. 

R.  L.  179,  §  30. 

1  Section  34.     Said  payments  shall  be  made  to  the  demandant  or  for  Effect  ot 

2  his  use  to  the  recorder  of  the  land  court;  and  if  the  tenant  fails  to  make  i807!'75!T3.' 

3  any  such  payment  within  the  time  limited  therefor,  the  demandant  may,  R°|.'foi, 

4  witliin  three  months  after  default  of  payment,  take  out  his  writ  of  seisin  ^  f'll^' 

5  on  the  judgment  recovered  by  him,  and  shall  take  and  hold  the  land  y|^'3l' 

6  without  allowance  for  any  improvements  made  thereon.  §§  35, 36". 

R.  L.  179,  §  31.  1904,  448,  §  1. 


2554 


WEITS    OF   EXTRY. 


[CIH.P.   237. 


Remedy  on 
failure  of 
title. 

1807,  75.  §  3. 
R.  S.  101. 
§§41-43. 
G.  S.  134, 
§§  38,  39,  50. 
P.  S.  173, 
§5  37-39. 
R.  L.  179, 
§§  32-34. 
1918,  257, 
§437. 
1919,5. 
1920,  2. 


Section  35.  If  the  tenant  or  his  heirs  or  assigns,  after  the  land  is  so  1 
relinquished  to  him,  are  evicted  therefrom  by  force  of  a  better  title  than  2 
that  of  the  original  demandant,  the  person  so  evicted  may  reco^■er  from  3 
such  demandant,  or  from  his  executors,  administrators,  heirs  or  devisees  4 
under  chapter  one  hundred  and  ninety-seven,  the  amount  so  paid  for  5 
the  land  in  an  action  for  money  had  and  received  by  the  demandant  in  6 
his  lifetime  for  the  use  of  the  plaintiff,  with  lawful  interest  thereon;  but  7 
in  order  to  be  so  entitled  to  recover,  the  tenant  or  those  holding  under  8 
him  shall  give  notice  to  the  person  so  liable  to  refund  the  purchase  money  9 
of  the  pendency  of  the  action  for  the  recovery  of  the  land,  so  that  he  may  10 
offer  evidence  tending  to  pro^'e  that  the  original  demandant  had  the  11 
better  title.  "  12 


Effect  of 
death  of 
parties  on 
manner  of 
pa\Tnent. 
1809,  84. 
R.  S.  101,  §  44. 
G.  S.  134,  §  41. 
P.  S.  173,  §  40. 
R.  L.  179,  §  35. 


DEATH    OF   P.iRTY   .\FTER   JUDGMENT. 

Section  36.     If,  after  judgment  for  the  demandant,   either  party  1 

dies  before  the  writ  of  seisin  is  executed,  or  before  the  case  is  otherwise  2 

settled  under  this  chapter,  any  money  payable  by  the  demandant  or  3 

tenant,  respecti\'ely,  may  be  paid  by  him  or  his  executor  or  adminis-  4 

trator,  or  by  a  person  entitled  to  the  estate  under  him,  to  the  tenant  or  5 

demandant,  respectively,  or  his  executor  or  administrator.  6 


Against  whom 
writ  of  seisin 
shall  run. 
R.  S.  101.  §  4.5. 
G.  S.  134,  §  42. 
P.  S.  173.  §  41. 
R.  L.  179,  §  36. 


Section  37.  The  writ  of  seisin  issued  in  such  case  shall  be  in  the 
name  of  the  original  demandant  against  the  original  tenant,  although 
either  or  both  of  them  are  dead,  and  when  executed  it  shall  enure  to  the 
benefit  of  the  demandant  or  of  the  person  entitled  to  the  land  under 
him,  as  if  it  had  been  executed  on  the  day  when  the  judgment  was 
rendered. 


Recovery  by 
life  tenant 
from  re- 
mainderman. 
R.  S.  101,  §46. 
G.  S.  134,  §  43. 
P.  S.  173,  §  42. 
R.  L.  179,  §  37. 


LIFE   tenant    or   RE^L\INDERiL^N. 

Section  38.  If  a  demandant  claiming  an  estate  for  life  only  in  the 
land  pays  an  amount  allowed  to  the  tenant  for  improvements,  he  or  his 
executor  or  administrator  shall,  at  the  determination  of  his  estate,  be 
paid  by  the  remainderman  or  reversioner  the  value  of  the  improvements 
as  they  then  e.xist,  shall  have  a  lien  on  the  land  for  said  value  as  if  it  had 
been  mortgaged  for  the  paj-ment  of  such  value,  and  may  keep  possession 
of  the  land  until  such  payment  is  made. 


1 

2 

3 
4 
5 
6 
7 


Manner  of 

determining 

and  recovering 

amount. 

R.  S.  101,  §  47. 

G.  S.  134,  §  44. 

P.  S.  173,  §  43. 


Section  39.     If  the  amount  due  from  the  remainderman  or  reversioner  1 

is  not  agreed  on  by  the  parties,  it  may  be  determined  in  a  suit  in  equity  2 

brought  by  the  remainderman  or  reversioner;  and  the  proceedings  shall  be  3 

the  same  as  in  a  suit  for  the  redemption  of  a  mortgage.      R.  l.  179,  §  38.  4 


Limitation  of 
amount  re- 
coverable. 
R.  S.  101,  §  48. 
G.  S.  134,  §  45. 
P.  S.  173,  §  44. 
R.  L.  179,  §  39. 


Section  40.  The  remainderman  or  reversioner,  or  those  claiming 
under  him,  shall  not  recover  from  the  adverse  party  the  excess,  if  any, 
of  rents  and  profits  accruing  after  the  determination  of  the  estate  for  life, 
over  the  amount  due  for  the  improvements. 


1 

2 

3 
4 


Limitation  of 
time  for  bring- 
ing action. 
R.  S.  101, 
§§  48,  49. 
G.  S.  134, 
§§  45,  46. 
P.  S.  173,  §  45. 
R.  L.  179,  §  40. 


Section  41.  The  remainderman  or  reversioner,  or  those  claiming 
under  him,  shall  be  deemed  disseized  at  the  determination  of  the  life 
estate,  and  the  suit  in  equity  and  all  other  remedies  by  action  or  by  entry 
for  the  recovery  of  the  land  shall  be  barred  as  in  other  cases  of  disseisin, 
and  the  limitation  of  three  years  provided  for  the  redemption  of  a  mort- 
gage shall  not  apply. 


Chap.  237.]  wrus  of  entry.  '  2555 


EXECXTTION   TO   BE   RECORDED. 

1  Section  42.     An  officer  serving  an  execution  issued  upon  a  judgment  Execution  for 

2  for  possession  shall,  within  tlu-ee  months  after  the  service,  and  before  the  be  recorded. 

3  return  of  the  execution  into  the  recorder's  office,  cause  such  execution  with  g.  s.'  133,'  §  55. 

4  his  return  thereon  to  be  recorded  in  the  registry  of  deeds  for  the  county  r.  LVyg,!!*!'. 

5  or  district  where  the  land  affected  thereby  lies,  and  the  expense  thereof  y^otkyflbl/' 

6  shall  be  added  to  his  charge  for  service. 

APPLICATION   OF   CHAPTER. 

1  Section  43.     This  chapter  shall  not  prevent  the  demandant  from  Demandant's 

2  maintaining  an  action  of  trespass  for  mesne  profits,  or  for  damage  done  trespa^serT'"^ 

3  to  the  land,  against  any  person,  except  the  tenant  in  the  writ  of  entry.  r°s^'io'i',''^'3i. 

G.  S.  134,  §  29.  P.  S.  173,  §  47.  R.  L.  179,  §  42.  G  Gush.  205. 

1  Section  44.    The  provisions  of  this  chapter  relative  to  rents  and  vilions°n^'t°to 

2  profits  to, be  recovered  in  a  writ  of  entry,  the  allowance  for  improvements  ^PjPJ,^*'^, 

3  made  on  the  land  demanded  and  the  value  of  the  land  without  the  mortgagees 

4  improvements  shall  not  apply  to  an  action  brought  by  a  mortgagee,  his  r.  s.'ioi.  §  s. 

5  heirs  or  assigns,  against  a  mortgagor,  his  heirs  or  assigns,  for  the  recovery  p.s.  173.' §  48.' 

6  of  the  land  mortgaged.  r.  l.  179,  §  43. 

REFERENCES. 

Information  by  commonwealth  in  the  nature  of  writ  of  entry  to  recover  land.  Chap. 
245,  §  1. 

Writ  of  entry  by  creditor  or  pm-chaser  at  execution  sale  in  certain  cases,  Chap.  223, 
§  127;  236,  §47. 

Writ  of  entry  by  debtor,  where,  after  tender  of  debt,  and  costs  to  redeem  land  taken 
on  execution,  creditor  or  purchaser  refuses  to  release.  Chap.  236,  §  38. 

Writ  of  entry  by  devisee  of  disseized  testator  having  right  of  entry,  Chap.  191,  §  24. 

Writ  of  entry  by  executor  or  administrator  licensed  to  sell  land  fraudulently  con- 
veyed by  decedent,  Chap.  202,  §  18. 

Writ  of  entry  to  foreclosure  mortgage.  Chap.  244,  §§  1,  8. 

Sale  by  executor  or  administrator  of  right  of  decedent  to  bring  writ  of  entry,  Chap. 
202,  §§  2,  18. 

Jurisdiction  of  land  court  of  writs  of  entry,  Chap.  185,  §  1. 

Costs  in  writ  of  entry,  Chap.  244,  §  8;  245,  §  12;  261,  §  6. 

Fee  for  serving  execution  of  seisin  or  possession  in  writ  of  entry.  Chap.  262,  §  8. 

Survival  of  actions,  Chap.  228,  §§  8-11. 

§  2.  Writ  of  entry  against  commonwealth  or  its  grantee  by  demandant  not  concluded 
by  information  to  recover  land,  Chap.  245,  §§  9~V2. 

§  3.  Time  within  which  to  bring  writ  of  entry,  Chap.  189,  §  14;  202,  §§  2,  18; 
204,  §  22;  223,  §  127;  260,  §§  21-31. 

§  4.  Evidence  of  seisin  of  attaching  creditor  in  writ  of  entry  where  special  attach- 
ment is  dissolved  by  giving  bond.  Chap.  223,  §  127. 

§  9.  Proceedings  in  writ  of  entry  by  debtor,  where,  after  tender  of  debt  and  costs 
to  redeem  land  from  levy  or  execution  sale,  creditor  or  purchaser  refuses  to  release. 
Chap.  236,  §  40. 

§  10.  New  action  after  abatement  of  writ  of  entry,  or  arrest  or  reversal  of  judgment 
for  demandant.  Chap.  260,  §  32. 

§  12.  Right  of  demandant  to  damages  for  rents  and  profits,  etc.,  in  writ  of  entry 
against  commonwealth  or  its  grantee,  Chap.  245,  §  11. 

Action  of  tort  for  three  times  damages  assessed  for  waste  committed  during  pend- 
ency of  wTit  of  entry.  Chap.  242,  §  6. 

Equitable  power  of  court  to  restrain  waste  during  pendency  of  writ  of  entrv,  Chap. 
242,  §  9. 

Liability  of  demandant  for  improvements  in  writ  of  entry  against  commonwealth 
or  its  grantee.  Chap.  245,  §  11. 

§  27.     When  demandant  may  not  have  writ  of  possession,  Chap.  223,  §  127. 

§  36.     Effect  of  descent  or  discontinuance  on  writ  of  entry.  Chap.  184,  §  20. 

§  42.  Necessity  of  recording  memoranda  in  registry  of  deeds  to  bind  persons  with- 
out actual  notice  of  writ  of  entry.  Chap.  184,  §§  15,  17. 

Necessity  of  recording  memoranda  in  land  court  to  bind  persons  other  than  parties 
in  writ  of  entry  relating  to  registered  land,  Chap.  185,  §§  8fr-89. 

Registration  of  judgment  in  WTit  of  entry  relating  to  registered  land.  Chap.  185,  §  8S. 


2556 


WEITS  OF  DOWER. 


[Ch.u>,  238. 


CHAPTER    238. 

WRITS  OF  DOWER. 


Sect. 

1.  When  writ  maintainable. 

2.  Demand  for  dower. 

3.  Form  and  manner  of  making  demand. 

4.  Damages  for  detention. 

5.  Commissioners  to  set  out  dower. 

6.  Procedure    of    cominissioners.     Oath. 

Notice. 


Sect. 

7.  Report  of  commissioners. 

8.  .Appeal. 

9.  Execution. 

10.  Tenant's  liability. 

11.  Assignment  out  of  rents  and  profits 

12.  -Application  of  certain  provisions. 


When  writ 
maintainable. 
C.  L.  42,  §  1. 
1700-1,  22,  §  1. 
1~S3,  40,  5  1. 
R.  S.  60,  §  5; 
102,  §  1. 


Section  1.     A  woman  entitled  to  dower,  if  it  is  not  set  out  to  her  by  1 

the  heir  or  other  tenant  of  the  freehold  to  her  satisfaction  according  to  2 

law  nor  assigned  to  her  by  the  probate  court,  may  recover  the  same  by  3 

a  writ  of  dower  as  provided  in  this  chapter.  4 

G.  S.  IS.'),  f  1.  R.L.ISO.  §1  116  Mass.  69. 


P.  S.  174,  §  1. 


1  Pick.  189,  314. 


Demand  for 
dower. 

1700-1,  22,  §  1. 
1783,  40,  §  1. 
1828,  137,  §  5. 
R.  S.  102,  §  2. 
G.  S.  135,  §  2. 
1878,  67. 
P.  S.  174,  §  2. 
R.  L.  180.  §  2. 
12  Met.  537. 


Section  2.     She  shall  demand  her  dower  of  the  person  then  seized  1 

of  the  freehold,  unless  such  person  is  unknown  to  her  or  absent  from  2 

the  commonwealth.     She  shall  not  commence  an  action  before  the  ex-  3 

piration  of  one  month,  nor  after  the  expiration  of  one  year,  from  such  4 

demand;    but  she  may  make  a  new  demand  and  commence  an  action  5 

thereon.  6 


Form  and 
manner  of 
making  de- 
mand. 
1855,  438. 
G.  S.  133,  §  3. 
P.  S.  174.  §  3. 


Section  3.  A  demand  of  dower  shall  be  sufficient  if  it  is  in  writing, 
signed  bj^  the  widow  or  by  her  agent  or  attorney,  containing  a  general 
description  of  the  land  in  which  dower  is  claimed  and  is  given  to  the 
tenant  of  the  freehold  or  left  at  his  last  and  usual  place  of  abode. 

R.  L.  ISO,  §  3.  6  Gush.  196. 


Damages  for 

detention. 
1700-1,  22,  §  2. 
1783,  40,  §  2. 
R.  S.  102,  §  3. 
G.  S.  135,  §  4. 
1869,418,  §  1. 
P.  S.  174,  §  4. 
R.  L.  180,  §  4. 


Section  4.  If  the  demandant  recovers  judgment  for  her  dower,  she 
shall  in  the  same  action  recover  damages  for  its  detention,  which  shall 
be  assessed  by  a  jury  under  the  direction  of  the  court,  unless  the  parties 
file  in  court  a  %\Titten  agreement  that  the  damages  shall  be  assessed  by 
commissioners  as  pro%-ided  in  the  three  foUon-ing  sections. 

116  Mass.  69.  129  Mass.  417, 


Commissioners 

to  set  out 

dower. 

C.  L.  42,  §  1. 

1700-1,  22,  §  3. 

1783,  40,  §  2. 

R.  S.  102,  §  6. 

G.  S.  135,  §  7. 

1869,  418, 

§12,3. 

P.  S.  174,  §  5. 


Section  5.  If  the  court  finds  that  the  demandant  is  entitled  to 
dower,  it  shall  award  an  interlocutory  judgment  therefor  and  issue  its 
warrant  to  three  disinterested  commissioners  to  set  out  said  dower 
equally  and  impartially  and  as  conveniently  as  may  be  and,  if  an  agree- 
ment has  been  filed  under  the  preceding  section,  to  award  damages  for 
its  detention.  R.  l.  iso,  §  s.  9  Ai\en.  254. 


Procedure  of 
commissioners. 
Oath.     Notice. 
1700-1,  22,  §  3. 
1783,  40,  §  2. 
R.  S.  102,  §  6. 
G.  S.  135,  5  7. 
1869,418, 
5§4,  6. 
P.  S.  174,  §  6. 
R.  L.  180,  I  6. 


Section  6.     The  commissioners,  before  entering  upon  their  duties,  1 

shall  be  sworn  faithfully  and  impartially  to  execute  the  M-arrant,  and  2 

a  certificate  of  the  oath  shall  be  made  thereon  by  the  person  administer-  3 

ing  it.    They  shall  give  notice  to  the  parties  of  the  time  and  place  ap-  4 

pointed  for  setting  out  the  dower.     AH  the  commissioners  shall  meet  5 

for  the  performance  of  any  duties,  but  a  majority  may  act.  6 


Chap.  239.] 


SUXIM.\RY  PROCESS   FOR   POSSESSION   OF  L.tND. 


2557 


1  Section  7.     The  commissioners  shall  make  and  sign  a  report  of  their  Report  of 

2  doings,  with  any  damages  assessed  by  them,  and  return  it  with  the  iseg, /is?}?.' 

3  warrant  to  the  court  issuing  it.     If  the  report  is  confirmed,  judgment  r.l.Vso.I?. 

4  shall  be  rendered  that  the  assignment  of  dower  shall  be  firm  and  effectual  ^^®  ^^"^^^  ^^■ 

5  during  the  life  of  the  demandant,  and  for  the  damages  as  assessed  by 

6  the  commissioners. 

1  Section  8.     A  party  aggrieved  by  a  judgment  rendered  under  section  Appeal. 

2  five,  or  upon  a  report  of  the  commissioners  under  the  preceding  section,  p.  s.'i74,'§  s.' 

3  may  appeal  therefrom  in  any  matter  of  law  apparent  upon  the  record  to  ^'  ^'  ^*°'  ^  *■ 

4  the  supreme  judicial  court;   but  an  appeal  from  the  judgment  rendered 

5  under  the  preceding  section  shall  not  draw  in  question  the  interlocutory 

6  judgment. 

1  Section  9.     When  final  judgment  has  been  recovered  by  the  de-  Execution. 

2  mandant,  execution  shall  issue  thereon  for  possession  and  for  costs  and,  i874i3lo;     ' 

3  if  the  judgment  is  for  damages  also,  for  damages. 

p.  S.  174,  §  9.  R.  L.  180,  §  9. 


1  Section  10.     The  action  shall  be  brought  against  the  person  who  is  Tenant's 

2  tenant  of  the  freehold  at  the  time  when  it  is  commenced.    If  the  demand  r's'.'im, 

3  was  not  made  on  him,  he  shall  be  liable  for  damages  only  for  the  time  q  s.  I'ss, 

4  during  which  he  held  the  land;  but  if  the  demandant  recovers  her  dower  p^l'ijj 

5  and  damages  in  the  writ  of  dower,  she  may  thereafter  recover  in  tort  |§  J^-jll  ^  .„ 

6  against  the  prior  tenant  of  the  freehold,  on  whom  her  demand  was  made,  12  Mass.  485. 

7  rents  and  profits  for  the  time  during  which  he  held  the  land  after  the 

8  demand. 


1  Section  11.     If  the  land  cannot  be  divided  without  damage  to  the  Assignment  out 

2  whole,  dower  may  be  assigned  out  of  rents  or  profits,  which  shall  be  re-  profite"  "" 

3  ceived  by  the  demandant  as  tenant  in  common  with  the  other  owners.    §;  |;  J"?;  |  §; 

p.  S.  174,  §12.  R.  L.  180,  §11. 

1  Section  12.     The  provisions  of  chapter  one  hundred  and  eighty-nine  Application 

2  relative  to  the  land  out  of  which  dower  may  be  claimed  and  the  manner  provisions. 

3  in  which  it  may  be  barred,  and  those  of  section  one  of  chapter  two  hun-  g!  s!  135!  1 10. 

4  dred  and  forty-two  relative  to  the  liability  of  the  tenant  for  waste,  shall  r. i'.Vso.^  12. 

5  apply  to  proceedings  under  this  chapter. 

REFERENCE. 

§  7.     Provision  as  to  registration  of  certificate  of  judgment  in  writ  of  dower, 
Chap.  185,  §  90. 


CHAPTER    239. 

SUMMARY   PROCESS   FOR  POSSESSION   OF   LAND. 


Sect. 

1.  Persons  entitled  to  summary  process. 

2.  Jurisdiction,  venue  and  form  of  writ. 

3.  Judgment  and  execution. 

4.  Storage  of  property  removed.    Lien  and 

enforcement, 
o.  Appeal.     Bond.     Action  thereon. 


Sect. 

6.  Condition  of  bond  in  action  for  posses- 

sion after  foreclosure. 

7.  Effect  of  judgment. 

S.  Effect  of    quiet    possession    for    three 
years. 


2558 


SUMMARY  PROCESS   FOR   POSSESSION   OF   hXSB.  [ChAP.  239. 


Persons  en- 
titled to  sum- 
mary process. 
C.  L.  11,  §  3. 
1700-1,  14,  §  1. 
1784,8.  §  1. 
1825,  89.  §  1. 
1835,  114. 
R.  S.  104,  5  2. 
1847,  267,  §  2. 
1851,  2.33,  §  77. 
G.  S.  137, 
§§2,3. 
1879,  237. 
P.  S.  175. 
1899,  120. 
R.  L.  181,  §  1. 
1914,  146. 
10  Mass.  403. 
3  Pick.  31. 
13  Pick.  36. 

2  Met.  29. 

3  Met.  350, 
548. 

5  Met.  343. 
7  Met.  147. 
10  Met.  29S. 


1. 


Section  1.  If  a  forcible  entry  into  land  or  tenements  has  been  made,  1 
if  a  peaceable  entry  has  been  made  and  the  possession  is  unlawfully  held  2 
by  force,  if  the  lessee  of  land  or  tenements  or  a  person  holding  under  him  3 
holds  possession  without  right  after  the  determination  of  a  lease  by  its  4 
own  limitation  or  by  notice  to  quit  or  otherwise,  or  if  a  mortgage  of  5 
land  has  been  foreclosed  by  a  sale  under  a  power  therein  contained  or  6 
otherwise,  the  person  entitled  to  the  land  or  tenements  may  recover  7 
possession  thereof  under  this  chapter.  A  person  in  whose  favor  the  land  8 
court  has  entered  a  decree  for  confirmation  and  registration  of  his  title  9 
to  land  may  in  like  manner  recover  possession  thereof,  except  where  10 
the  person  in  possession  or  any  person  under  whom  he  claims  has  erected  1 1 
buildings  or  improvements  on  the  land,  and  the  land  has  been  actually  12 
held  and  possessed  by  him  or  those  under  whom  he  claims  for  six  years  13 
next  before  the  date  of  said  decree  or  was  held  at  the  date  of  said  decree  14 


under  a  title  which  he  had  reason  to  believe  good. 


15 


11  Met.  99. 

I  Gush.  487. 

4  Gush.  141. 

5  Gush.  214,  563. 

8  Gush.  29.  33.  409. 

II  Gush.  227. 
4  Gray,  432. 
7  Gray,  462. 

9  Gray,  438. 

10  Gray,  290. 

11  Gray,  480. 
15  Gray,  319. 

1  Allen,  215,  406. 

6  Allen,  74,  76. 

9  Allen,  526. 

10  Allen,  519. 


13  Allen,  281. 

14  Allen,  43. 
99  Mass.  383. 
104  Mass.  595. 
106  Mass.  532. 
113  Mass.  36. 
121  Mass.  85,  309. 
126  Mass.  226,  292. 
130  Mass.  540. 

132  Mass.  122,  196. 

133  Mass.  426. 

134  Mass.  259. 
136  Mass.  HI. 

139  Mass.  54. 

140  Mass.  490. 
151  Mass.  543. 


152  Mass.  440. 
161  Mass.  335. 
163  Mass.  477. 
165  Mass.  481. 
168  Mass.  442. 
170  Mass.  29. 
172  Mass.  412. 
175  Mass.  213. 
191  Mass.  192. 
197  Mass.  540. 
206  Mass.  82.  434. 

213  Mass.  405. 

214  Mass.  238. 
219  Mass.  151. 

224  Mass.  209. 

225  Mass.  510. 


Jurisdiction, 
venue  and 
form  of  writ. 
1700-1,  14.  §  : 
1784,8,  §  1. 
1825,  89,  §  1. 
R.  S.  104, 
§§4,13. 
1841,55.  §  2. 
1851.  2.33, 
§§  79-81. 
G.  S.  137,  §  5. 
1866,  47. 
1869,  17,  §  3. 
1874,  271,  §  8. 


Section  2.     Such  person  may  take  from  the  superior  court  or  from  1 

a  district  court  a  wTit  in  the  form  of  an  original  summons,  which  shall  2 

summon  the  defendant  to  answer  to  the  complaint  of  the  plaintiff  that  3 

the  defendant  is  in  possession  of  the  land  or  tenements  in  question,  4 

describing  them,  which  he  holds  unlawfully  and  against  the  right  of  the  5 

plaintiff;   and  no  other  declaration  shall  be  required.    The  action  shall  6 

be  brought  in  the  county  and,  if  brought  in  a  district  court,  in  the  judicial  7 

district,  where  the  land  or  tenements  lie.  8 


p.  S.  154.  §  46; 
175,  §§2,3. 
1893.  396,  §  13. 
1894,398.  §  1;431. 


R.  L.  167,  §  2;  181,  §  2. 
1913,  644. 
1917,  326. 


1918,  257,  §  409. 

1919,5. 

1920,2. 


Judgment  and 
execution. 
1700-1,  14.  §  2. 
1784,8,  §§  1,3. 
1825,89,  §  1. 
R.  S.  104, 
§§6.7. 

1851,  233,  §  88. 
G.  S.  137, 
§§  7,  8. 


Section  3.     If  the  court  finds  the  plaintiff  entitled  to  possession  of 
the  land  or  tenements,  he  shall  have  judgment  and  execution  for  posses- 
sion and  for  costs.    If  the  plaintiff  becomes  nonsuit,  or  fails  to  prove  his 
the  defendant  shall  have  judgment  and  execution 

p.  S.  175,  §  5.  R.  L.  181,  §  3. 


right  to  possession, 
for  costs. 


8  Gush.  124. 
13  Gray,  272. 


15  Gray,  316. 
98  Mass.  309. 


121  Mass.  257. 
215  Mass.  125. 


property"^  Section  4.     If  an  officer,  serving  an  execution  issued  on  a  judgment 

removed.   Lien  for  the  plaintiff  for  possession  of  land  or  tenements,  removes  personal 

and  enforce-  i     ,  •  i  i  i  i    •       -^    e  i       i       j 

ment.  property,  belonging  to  a  person  other  than  the  plaintin,  from  the  land  or 

§§  i,'2.  '  tenements  and  places  it  upon  the  sidewalk,  street  or  way  on  which  the 
f§"4,'5.*''  land  or  tenements  abut,  he  may  forthwith,  and  before  the  expiration 
of  the  time  limited  in  any  ordinance  or  by-law  for  the  removal  of  obstruc- 
tions in  the  street,  remove  such  property  and  cause  it  to  be  stored  for 
the  benefit  of  the  owners  thereof.  Whoever  accepts  the  same  on  storage 
from  such  officer  shall  have  a  lien  thereon  for  reasonable  storage  fees  and 


Chap.  239.]  summary  process  for  possession  of  land.  2559 

10  for  reasonable  expenses  of  removing  it  to  the  place  of  storage,  but  such 

11  lien  shall  not  be  enforced  by  sale  of  the  property  until  it  has  been  kept 

12  on  storage  for  at  least  six  months.    If  the  owner  of  such  property  is  present 

13  and  claims  it  when  it  is  so  removed  from  the  land  or  tenements,  the 

14  officer  shall  not  remove  and  store  it,  and  his  act  of  placing  it  upon  the 

15  sidewalk  or  street  shall  be  deemed  the  act  of  the  owner,  who  alone  shall 

16  be  held  to  answer  therefor. 

1  Section  5.     If  the  defendant  appeals  from  a  judgment  of  a  district  Appeal.  Bond. 

2  court  rendered  for  the  plaintiff  for  the  possession  of  the  land  or  tenements  i7S3, 42,  §2.°  ' 

3  demanded,  he  shall,  except  as  provided  in  the  following  section,  before  r.'s.' iw,  §  io. 

4  such  appeal  is  allowed,  give  bond  in  such  sum  as  the  court  orders,  payable  c^i'.Ui'.lt 

5  to  the  plaintiff,  with  sufficient  surety  or  sureties  approved  by  the  plaintiff  Jgy^'lyi'  f  f 

6  or  court,  conditioned  to  enter  the  action  in  the  superior  court  for  that  ?of/'JcM  \®5 

7  county  at  the  return  day  next  after  the  appeal  is  taken,  and  to  pay  to  the  isss!  325]  §  1. 

8  plaintiff,  if  final  judgment  is  in  his  favor,  all  rent  accrued  at  the  date  of  1917',  32b'. 

9  the  bond,  all  intervening  rent,  and  all  damage  and  loss  which  he  may  Ja  Met!  isi. 

10  sustain  by  the  withholding  of  possession  of  the  land  or  tenements  |  ^Uen,  423. 

11  demanded  and  by  any  injury  done  thereto  during  such  withholding,  }|?  Mass' si"' 

12  with  all  costs,  until  the  delivery  of  possession  thereof  to  him.     Upon  isiMass.sei. 

13  final  judgment  for  the  plaintiff,  all  money  then  due  to  him  may  be  re-  i46  Mass!  324! 

14  covered  in  an  action  on  the  bond. 

176  Mass.  236.  1S2  Mass.  104.  213  Mass.  405. 

1  Section  6.    If  the  action  is  for  the  possession  of  land  after  foreclosure  Condition  of 

2  of  a  mortgage  thereon,  the  condition  of  the  bond  shall  be  for  the  entry  of  for"posse^sion° 

3  the  action  and  payment  to  the  plaintiff,  if  final  judgment  is  in  his  favor,  tlotme^^ 

4  of  all  costs  and  of  a  reasonable  amount  as  rent  of  the  land  from  the  day  ^^i'^f^'^  7 

5  when  the  mortgage  was  foreclosed  until  possession  of  the  land  is  obtained  i^ss.  325,  §  2. 

6  by  the  plaintiff. 

1       Section  7.    The  judgment  in  an  action  under  this  chapter  shall  not  Effect  of 

„,  1  ■!  PI  11*1  judgment. 

z  be  a  bar  to  any  action  thereaiter  brought  by  either  party  to  recover  R.  s.  104.  §  12. 

3  the  land  or  tenements  in  question,  or  to  recover  damages  for  any  tres-  g.  s.'i37,'§  11.' 

4  pass  thereon;  but  the  amount  recovered  for  rent  under  section  five  shall  R.L.Vs^sg. 

5  be  deducted  in  any  assessment  of  damages  in  such  subsequent  action  ^'^  ^"^^^  ^^^• 

6  by  the  original  plaintiff. 

1  Section  8.     There  shall  be  no  recovery  under  this  chapter  of  any  Effect  of  quiet 

2  land  or  tenements  of  which  the  defendant,  his  ancestors  or  those  under  rhreryears.""^ 

3  whom  he  holds  the  land  or  tenements  have  been  in  quiet  possession  for  nst^l',  1%^  *' 

4  three  years  next  before  the  commencement  of  the  action  unless  the  fssl,  4?t' 14^ 

5  defendant's  estate  therein  is  ended. 

1851,  233,  §  78.  P.  S.  175,  §  10.  12  Gray,  206. 

G.  S.  137,  §  4.  R.  L.  181,  §  10.  175  Mass.  213. 

REFERENCE. 

For  temporary  provisions  modifying  subject  matter  of  thi.'S  chapter,  1919,  257; 
1920,  538,  554,  555,  577  and  578. 


2560 


PROCEEDINGS  FOR  SETTLEMENT   OF  TITLE  TO   LAND.      [Ch,\.P.   240. 


CHAPTER    240. 

PROCEEDINGS  FOR  SETTLEMENT  OF  TITLE  TO   LAND. 


Sect. 

petition  to  require  action  to  thy  title. 

1.  Petition  to  compel  supposed  claimant 

to  try  title. 

2.  Proceedings  upon  petition. 

3.  Proceedings  upon  appearance. 

4.  Remedy  of  party  whose  right  is  barred 

without  actual  notice. 
6.  Application  of  preceding  sections. 


SUITS  IN  EQUITY  TO  QUIET  TITLE. 

6.  Suits  in  equity  in  supreme  judicial  and 

superior  courts  to  quiet  title. 

7.  Notice. 

S.  Guardian  ad  litem. 

9.  Compensation  and  expenses  of  guardian 
ad  litem. 
10.  Effect  of  decree. 


DETERMINATION    OP    VALIDITY    OF     CERTAIN 
ENCtJMB  RANGES. 

11.  Petition  in  land  court  to  determine  en- 

cumbrances. 

12.  Description  of  respondents. 

13.  Notice  and  appointment  of  agent. 

14.  Decree. 


DISCHARGE   OF  MORTGAGES. 

15.  Petition    in    land    court    to    discharge 
mortgage. 


Sect. 

registration  of  l.tnd  free  from  restric- 
TIONS. 

16.  Land  court  may  determine  whether  re- 

strictions are  enforceable. 

17.  Land  to  be  registered  free  from  certain 

restrictions,  etc.     Procedure. 
IS.  Appeal. 

DETERMINATION    OP    BOUNDARIES    OF    FLATS. 

19.  Petition    to   land   court   to    determine 

boundaries  of  flats,  etc. 

20.  Proceedings. 

21.  Effect  of  report  and  plan. 

22.  Costs. 

23.  Court  may   determine   boundaries  in- 

stead of  appointing  commissioners. 

24.  Subsequent   purchasers,   etc.,   may   be 

made  parties. 

25.  Boundaries  may  be  determined  concur- 

rently with  registration. 

26.  Rights  of  commonwealth. 

DETERMINATION  OF  QUESTIONS  RELATING 
TO  POWER  TO  CONVEY  OR  MORTGAGE 
REAL  ESTATE  UNDER  WRITTEN  INSTRU- 
MENTS. 

27.  Fiduciary,  etc.,  may  petition  land  court 

to  establish  power  or  authority. 

28.  Court  may  determine  question,  etc. 

PROCEDURE. 

29.  Procedure  under  this  chapter. 


Petition  to 
compel  sup- 
posed claimant 
to  try  title. 

1851,  233,  §  66. 

1852,  312,  §  52. 
G.  S.  134,  §  49. 
1873,  178. 

P.  S.  176. 
§§1,2. 
1893,  340, 
§§  1,  3. 
R.  L.  182.  §  1. 
1904,448.  §  1. 
12  Cush.  185. 
1  Gray,  416. 
4  Gray,  82. 
4  Allen.  ISO. 
99  Mass.  209. 

101  Mass.  447. 

102  Mass.  374. 
114  Mass.  340. 

116  Mass.  5.58. 

117  Mass.  504, 
506. 

118  Mass.  595. 
124  Mass.  342. 
129  Mass.  377. 
136  Mass.  32. 


PETITION  TO   REQUIRE  ACTION  TO   TRY  TITLE. 

Section  1.  If  the  record  title  of  land  is  clouded  by  an  adverse  claim,  1 
or  by  the  possibOity  thereof,  a  person  in  possession  of  such  land  claiming  2 
an  estate  of  freehold  therein  or  an  unexpired  term  of  not  less  than  ten  3 
years,  and  a  person  who  by  force  of  the  covenants  in  a  deed  or  otherwise  4 
may  be  liable  in  damages,  if  such  claim  should  be  sustained,  may  file  a  5 
petition  in  the  land  court  stating  his  interest,  describing  the  land,  the  6 
claims  and  the  possible  adverse  claimants  so  far  as  known  to  him,  and  7 
praying  that  such  claimants  may  be  summoned  to  show  cause  why  they  8 
should  not  bring  an  action  to  try  such  claim.  If  no  better  description  9 
can  be  given,  they  may  be  described  generally,  as  the  heirs  of  A  B  or  the  10 
like.  Two  or  more  persons  having  separate  and  distinct  parcels  of  land  11 
in  the  same  county  and  holding  under  the  same  source  of  title,  or  persons  12 
having  separate  and  distinct  interests  in  the  same  parcel  or  parcels,  may  13 
join  in  a  petition  against  the  same  supposed  claimants.  If  the  supposed  14 
claimants  are  residents  of  the  commonwealth,  the  petition  may  be  inserted  15 
like  a  declaration  in  a  writ,  and  served  by  a  copy,  like  a  ^^•rit  of  original  16 


Chap.  240.]    proceedings  for  settlement  of  title  to  l.\nd.  2561 

17  summons.    Whoever  is  in  the  enjoyment  of  an  easement  shall  be  held  to  137  Mass.  147, 

18  be  in  possession  of  land  within  the  meaning  of  this  section.  139'Mass.  175. 

140  Mass.  678.  153  Mass.  42.  171  Mass.  46,  367.  209  Mass.  9. 

145  Mass.  112.  162  Mass.  438.  177  Mass.  501.  212  Mass.  547. 

148  Mass.  552.  168  Mass.  201.  191  Mass.  196.  213  Mass.  483. 

ISO  Mass.  73.  170  Mass.  328.  208  Mass.  391.  221  Mass.  372. 

1  Section  2.     If  the  petition  is  not  so  served,  the  court  shall  order  Proceedings 

2  notice  thereof  by  publication  to  the  supposed  claimants,  whether  resi-  issT,  233,"§°66. 

3  dents  or  non-residents  of  the  commonwealth.    Such  notice  shall  bind  all  Q^i;  13I' | |y; 

4  the  world,  but  the  coiut  may  also  require  personal  or  other  notice,  and  ^^^^  ^^^  ^  ^■ 

5  if,  upon  return  of  the  order  of  notice  duly  executed,  the  parties  notified  |§  ?•  Ig, 

6  do  not  appear  within  the  time  limited  or,  having  appeared,  disobey  the  §§2-4  J 

7  lawful  order  of  the  court  to  try  their  claim,  the  court  shall  enter  a  decree  §  43s."  '' 

8  that  they  be  forever  barred  from  having  or  enforcing  any  such  claim  wlo'.t 

9  adversely  to  the  petitioner,  his  heu-s  or  assigns,  in  the  land  described,  ^°^  ^^"^^^  "■*• 

10  and  may  require  them  to  execute,  within  such  time  as  the  court  orders, 

11  a  conveyance,  release  or  acquittance  duly  relinquishing  the  same.     A 

12  judgment  or  decree  under  this  section  may  require  the  giving  of  a  bond 

13  to  respond  to  any  action  brought  under  section  four  within  five  years 

14  after  the  entry  of  such  judgment  or  decree. 

1  Section  3.     If  the  persons  notified  or  summoned  appear  and  disclaim  Proceedings 

2  all  right  and  title  adverse  to  the  petitioner,  they  shall  recover  costs.    If  pear"ance. 

3  they  claim  title,  they  shall  by  answer  show  why  they  should  not  be  §§^66,^67' 

4  required  to  bring  an  action  to  try  such  title,  and  the  court  shall  enter  ]^.^~^  ^^^' 

5  an  appropriate  decree  relative  to  bringing  and  prosecuting  such  action.  G.  s.  134'. 

6  If  the  party  or  parties  against  whom  a  judgment  or  decree  for  a  con-  p.  s.  176,'  §  2. 

7  veyance,  release  or  acquittance  may  be  rendered  by  any  court  in  the  u^t.  182'. §  3. 

8  commonwealth  do  not  comply  therewith,  within  the  time  therein  limited,  J37  Mass'.  376. 

9  such  judgment  or  decree  shall,  subject  to  the  following  section,  have  ^j)^  Hm-  f^- 

10  the  same  effect  as  if  the  conveyance,  release  or  acquittance  had  been 

11  executed  conformably  thereto. 

1  Section  4.     A  party  against  whom,  without  other  notice  than  publi-  Remedy  of 

2  cation  in  a  newspaper,  a  judgment  or  decree  has  been  rendered  under  right^irbarred 

3  section  two  and  whose  right  is  barred  thereby,  may  recover  from  the  ni^^e"""^'""' 

4  person  in  whose  favor  such  judgment  or  decree  was  entered,  or  from  his  Jf ^^  182'  f  t' 

5  executors,  administrators,  heirs  or  devisees,  in  accordance  with  chapter  P^g^j^^''' 

6  one  hundred  and  ninety-seven,  the  value  at  the  time  action  is  brought  lain.s. 

7  of  any  interest  or  right,  except  of  improvements  made  by  the  defendants, 
S  of  which  he  may  have  been  deprived  by  such  judgment  or  decree,  unless 
9  at  that  time  an  action  which,  but  for  such  judgment  or  decree,  he  might 

10  have  maintained  for  the  recovery  of  such  interest  or  the  enforcement  of 

1 1  such  right  would  have  been  barred  by  the  statute  of  limitations. 

1  Section  5.     The  four  preceding   sections   shall   not   apply   to   any  Application  of 

2  property,  right,  title  or  interest  of  the  commonwealth.  seTtkin"^ 

1893,  340,  §  7.  R.  L.  182,  §  5. 

SUITS   IN   EQUITY   TO    QUIET   TITLE. 

1  Section  6.     If,  in  a  suit  in  equity  in  the  supreme  judicial  or  the  Suits  in  equity 

2  superior  court  to  quiet  or  establish  the  title  to  land  situated  in  the  com-  judi^LTami 

3  monwealth  or  to  remove  a  cloud  from  the  title  thereto,  it  is  sought  to  to  q''iie[  t "tie '^ 


2562 


PROCEEDINGS   FOR  SETTLEMENT  OF  TITLE  TO   LAND.      [Ch.\P.   240. 


1897,  522.  5  1. 

1898,  457. 

1899,  444. 

R.  L.  182,  5  6. 
170  Mass.  328. 
191  Mass.  196. 
193  Mass.  2S8. 
212  Mass.  547. 
221  Mass.  372. 


Notice. 
1897,  522.  §  2. 
R.  L.  182,  §  7. 


determine  the  claims  or  rights  of  persons  unascertained,  not  in  being,  4 
unknown  or  out  of  the  commonwealth,  or  who  cannot  be  actually  served  5 
with  process  and  made  personally  amenable  to  the  decree  of  the  court,  6 
such  persons  may  be  made  defendants  and,  if  they  are  unascertained,  7 
not  in  being  or  unknown,  may  be  described  generally,  as  the  heirs  or  8 
legal  representatives  of  A  B,  or  such  persons  as  shall  become  heirs,  9 
devisees  or  appointees  of  C  D,  a  living  person,  or  persons  claiming  under  10 
A  B.  It  shall  be  unnecessary  for  the  maintenance  of  such  suit  that  11 
the  defendants  shall  have  a  claim  or  the  possibility  of  a  claim  resting  12 
upon  an  instrument  the  cancellation  or  surrender  of  which  would  afford  13 
the  relief  desired ;  but  it  shall  be  sufficient  that  they  claim  or  may  claim  14 
by  purchase,  descent  or  otherwise,  some  right,  title,  interest  or  estate  15 
in  the  land  which  is  the  subject  of  the  suit  and  that  their  claim  depends  16 
upon  the  construction  of  a  wTitten  instrument  or  cannot  be  met  by  the  17 
plaintiffs  without  the  production  of  evidence.  Two  or  more  persons  claim-  18 
ing  to  own  separate  and  distinct  parcels  of  land  in  the  same  county  by  19 
titles  derived  from  a  common  source,  or  two  or  more  persons  ha\-ing  20 
separate  and  distinct  interests  in  the  same  parcel,  may  join  as  plaintiffs  21 
in  any  suit  brought  under  this  section. 


99 


Section  7.  If  in  such  suit  the  court  finds  that  actual  service  cannot 
be,  or  has  not  been,  made  upon  a  defendant,  it  may  at  the  request  of 
the  plaintiff  order  notice  of  the  suit  to  be  posted  in  a  conspicuous  place 
on  the  land  or  to  be  published  in  a  newspaper  Mithin  or  without  the 
commonwealth,  or  both,  or  to  be  given  in  such  other  manner  as  it  con- 
siders most  effectual,  and  may  also  require  personal  notice  to  be  given. 
Notice  given  under  this  section  shall  be  constructive  service  on  all  the 
defendants. 


Guardian 
ad  litem. 
1897,  522,  5  3. 
R.  h.  182,  §  8. 


Section  8.     If,  after  notice  has  been  given  or  served  as  provided  in  1 

the  preceding  section  and   the  time  limited  in  such  notice  for  the  2 

appearance  of  the  defendants  has  expired,  the  court  finds  that  there  3 

are  or  may  be  defendants  not  actually  served  with  process  within  the  4 

commonwealth  who  have  not  appeared  in  the  suit,  it  may  of  its  own  5 

motion,  or  on  the  representation  of  any  party,  appoint  a  guardian  ad  G 

litem  or  next  friend  of  any  such  defendant,  and  if  any  such  defendants  7 

have  or  may  have  conflicting  interests,  it  may  appoint  different  guardians  8 

ad  litem  or  next  friends  to  represent  them.                            "  9 


Compensation 
and  expenses 
of  guardian 
ad  litem. 
1897,  522,  §  4. 
R.  L.  182,  §  9. 


Section  9.    The  cost  of  appearance  of  anj-  such  guardian  ad  litem  1 

or  next  friend,  including  compensation  of  his  counsel,  shall  be  deter-  2 

mined  by  the  court  and  paid  by  the  plaintiff',  against  whom  execution  3 

may  issue  therefor  in  favor  of  the  guardian  ad  litem  or  next  friend.  4 


Effect  of 
decree. 

1897,  522,  I  5. 
R.  L.  182,  §  10. 
191  Mass.  196. 


Section  10.  After  all  the  defendants  have  been  served  with  proc- 
ess or  notified  as  pro\'ided  in  section  seven  and  after  the  appoint- 
ment of  a  guardian  ad  litem  or  next  friend,  if  such  appointment  has 
been  made,  the  court  may  proceed  as  though  all  defendants  had  been 
actually  served  with  process.  Such  suit  shall  be  a  proceeding  in  rem 
against  the  land,  and  a  decree  establishing  or  declaring  the  validity, 
nature  or  extent  of  the  plaintiff's  title  may  be  entered,  and  shall  oper- 
ate directly  on  the  land  and  have  the  force  of  a  release  made  by  or  on 
behalf  of  all  defendants  of  all  claims  inconsistent  with  the  title  estab- 
lished or  declared  thereby.    This  and  the  four  preceding  sections  shall 


9 

10 


Ch.\P.   240.]      PROCEEDINGS   FOR   SETTLEMENT   OF  TITLE  TO   LAND.  2563 

11  not  prevent  the  court  from  also   exercising  jurisdiction  in  personam 

12  against  defendants  actually  served  with  process  who  are  personally 

13  amenable  to  its  decrees. 

DETERMINATION   OF   VALIDITY    OF   CERTAIN   ENCUMBRANCES. 

1  Section  11.     If  the  title  to  land  appears  of  record  to  be  affected  by  Petition  in  land 

2  a  possible  condition,  restriction,  reser\ation,  stipulation  or  agreement  termineencum- 

3  made  or  imposed  more  than  thirty  years  prior  to  the  commencement  i8S9!^442, 

4  of  the  proceedings  hereinafter  pro\-ided  for,  a  person  ha\ing  a  freehold  ||g}j' ^-j^  ^  ^ 

5  estate,  vested  or  contingent,  in  possession,  reversion  or  remainder,  in  R-  l.  i82,  |  li. 

6  said  land,  or  in  any  undi\-ided  or  any  aliquot  part  thereof,  or  any  inter-  i"3  Mass',  es.' 

7  est  tlierein  which  may  become  a  freehold  estate,  and  any  person  who  isi  Mass!  lie! 

8  has  conveyed  such  estate  or  any  such  interest  therein  with  covenants  Us  Mass'  sso'. 

9  of  title  or  warranty,  may  file  a  petition  on  oath  in  the  land  court  to  aoiMass^irf' 

10  determine  the  validity,  or  define  the  nature  and  extent,  of  such  pos-  J^-i ,,      ^.^ 

I  1       M  1  1-   •  r  1  •  I  •    1       212  Mass.  547. 

11  sible  condition  or  other  encumbrance,  against  any  person  who  might  sis  Mass.  1 89. 

12  be  entitled  in  any  event  to  enforce  it  or  a\-ail  himself  thereof.     Two 

13  or  more  persons  owning  in  se^•eralty  different  portions  of  such  estate  or 

14  different  interests  therein  may  join  in  such  petition,  or  two  or  more 

15  such  defects  of  the  same  general  character  in  the  title  to  the  same  parcel 

16  of  land  or  to  different  portions  of  the  same  parcel  of  land  may  be  set 

17  forth  in  the  same  petition,  and  if  the  petition  is  contested  the  court  shall 

18  make  an  appropriate  order  for  separate  issues. 

1  Section  12.     If  it  is  averred  in  the  petition  that  there  are  necessary  Description  of 

2  or  proper  respondents  whose  names  are  unknown  to  the  petitioner,  they  iss9°'442"T2. 

3  may  be  described  generally,  as  heirs  or  devisees  of  a  person  deceased,  as  '^'  ^'  ''*^'  ^  ^"' 

4  persons  claiming  under  certain  persons  named,  as  the  owners  of  cer- 

5  tain  land,  or  otherwise,  and  if  it  is  so  averred  that  the  true  n^me  of 

6  a  respondent  cannot  be  ascertained,  he  shall  be  described  as  accurately 

7  as  practicable.  If  it  is  so  averred  that  there  are  classes  of  necessary  or 
S  proper  respondents  whom  it  is  impracticable  and  unnecessary  to  name 
9  and  to  serve  with  process  indi\'idually,  they  may  be  described  gener- 

10  ally.    The  court  may,  if  in  its  opinion  the  petitioner  can  and  should  do 

II  so,  require  him  by  amendment  to  name  or  describe  respondents  more  • 
12  particularly. 

1  Section  13.     The  coiu-t  shall  prescribe  the  notice  to  be  given  to  Notice  and 

2  non-resident  respondents,  to  respondents  whose  residences  are  unknown,  oFagent.'""" 

3  to  unknown  or  unnamed  respondents,  and  to  any  other  respondents  J^*  l!  iti',  |  is. 

4  upon  whom  for  any  reason  service  cannot  be  made.    If  the  court  finds 

5  that  there  are  respondents  to  be  affected  by  the  decree,  who  have  not 

6  had  actual  notice  of  the  petition,  it  shall  appoint  a  disinterested  person 

7  to  act  for  them. 

1  Section  14.     Upon  service  of  such  notice,  the  court  shall  have  juris-  Decree. 

2  diction  of  all  persons  made  respondents  to  the  petition  in  the  manner  h  -i.'s. "' 

3  above  provided,  and  shall,  upon  a  hearing,  make  a  decree  determining  ^'     ^^~'  ^  '"*" 

4  the  ^■alidity,  nature  or  extent  of  any  such  possible  condition  or  otiier 

5  encumbrance,  which  shall  be  effectual  to  exclude  all  the  respondents 

6  from  any  claim  thereunder  contrary  to  such  determination,  and  shall 

7  have  the  same  effect  as  a  release  by  such  respondents  of  such  claims. 

8  The  court  may  award  costs  in  its  discretion. 


2564 


PROCEEDINGS  FOR  SETTLEMENT   OF  TITLE  TO   L.\XD.  [Ch.VP.   240. 


Petition  in  land 
court  to  dis- 
charge mort- 
gage. 
1882,  237. 
1885,  2S3. 
1890.427.  §  1. 
R.  L.  182.  §  15. 
1904.448.  I  1. 
1913.  533. 
155  Mass.  57. 
160  Mass.  407. 
168  Mass.  384. 
192  Mass.  244. 
205  Mass.  99, 
497. 
212  Mass.  547. 


DISCH.A.RGE    OF   MORTG,\.GES. 

Section  15.  If  the  record  title  of  land  or  of  easements  or  rights  in  1 
land  held  and  possessed  in  fee  simple  is  encumbered  by  an  undischarged  2 
mortgage,  and  the  mortgagor  and  those  ha^"ing  his  estate  therein  have  3 
been  in  uninterrupted  possession  of  the  land  or  exercising  the  rights  in  4 
easements  or  other  rights  in  land,  either  for  any  period  of  twenty  years  5 
after  the  expiration  of  the  time  limited  in  the  mortgage  for  the  full  6 
performance  of  the  condition  thereof,  or  for  any  period  of  twenty  years  7 
after  the  date  of  a  mortgage  not  given  to  secure  the  pajanent  of  money  8 
or  a  debt  but  to  secure  the  mortgagee  against  a  contingent  liability  9 
which  has  so  ceased  to  exist  that  no  person  will  be  prejudiced  by  the  10 
discharge  thereof,  the  mortgagor,  or  those  having  his  estate  in  the  land,  11 
or  exercising  the  rights  in  easements,  or  any  person  named  in  section  12 
eleven,  may  file  a  petition  in  the  land  court;  and  if,  after  such  notice  13 
by  publication  or  otherwise  as  the  court  orders,  no  evidence  is  offered  14 
of  a  payment  on  account  of  the  debt  secured  by  said  mortgage  within  15 
such  period  of  twenty  years  after  the  expiration  of  the  time  limited  for  16 
the  performance  of  the  condition  thereof,  or  of  any  other  act  within  17 
said  time  in  recognition  of  its  existence  as  a  valid  mortgage,  or  if  the  IS 
court  finds  that  such  contingent  liability  has  ceased  to  exist  and  that  19 
the  mortgage  ought  to  be  discharged,  it  may  enter  a  decree,  reciting  the  20 
facts  and  findings,  which  shall,  within  thirty  days  after  its  entry,  be  21 
recorded  in  the  registry  of  deeds  for  the  county  or  district  where  the  22 
land  lies,  and  no  action  to  enforce  a  title  under  said  mortgage  shall  23 
thereafter  be  maintained.  Two  or  more  persons  owning  in  severalty  24 
different  portions  or  different  interests,  such  as  are  described  in  section  25 
eleven,  in  the  land  subject  to  the  mortgage  may  join  in  one  petition,  and  26 
two  or  more  defects  arising  under  different  mortgages  affecting  one  27 
parcel  of  land  may  be  set  forth  in  the  same  petition.  If  the  petition  is  28 
contested,  the  court  shall  make  an  appropriate  order  for  separate  issues.  29 


Land  court 
may  determine 
whether  re- 
strictions are 
enforcealile. 
1915,  112.  §  1. 
221  Mass.  372. 
22S  Mass.  242. 


REGISTRATION   OF   L.VND    FREE   FROil   RESTRICTIONS. 

Section  16.  The  land  court  shall  have  jurisdiction  upon  a  petition 
to  register  land,  or  if  land  has  been  previously  registered,  upon  a  supple- 
mental petition  by  the  o^^■ner  thereof,  to  hear  and  determine  the  question 
whether  or  not  equitable  restrictions  arising  under  contracts,  deeds  or 
other  instruments  limiting  or  restraining  the  use  or  the  manner  of  using 
land  are  enforceable  in  whole  or  in  part. 


Land  to  be  reg- 
istered free 
from  certain 
restrictions,  etc. 
Procedure. 
1915,  112,  §  2. 
228  Mass.  242. 


Section  17.  If  the  land  court  shall  find  and  determine,  after  hear- 
ing, that  the  enforcement  of  any  of  such  restrictions  or  limitations 
would  be  injurious  to  the  public  interests,  it  shall  register  title  to  the  land 
free  from  said  restrictions  as  and  to  the  extent  required  by  the  public 
interests,  or,  in  case  of  registered  land,  shall  enter  an  appropriate  order 
therefor;  provided,  that  if  the  land  court  shall  find  and  determine  that 
any  of  such  restrictions  or  limitations,  though  they  ought  not  to  be 
enforced,  are  nevertheless  valid  and  ha\-e  not  become  inoperative,  it  8 
shall,  before  registering  said  land  free  from  said  restrictions  or  limita-  9 
tions  or  any  of  them,  ascertain  and  determine  whether  any  person  or  10 
property  entitled  to  the  benefits  of  any  of  such  restrictions  or  limitations  11 
may  be  damaged  by  the  non-enforcement  thereof.    If  so,  the  case  shall  12 


ClL\P.   240.]      PROCEEDINGS   FOR  SETTLEMENT   OF  TITLE  TO   L.\ND.  2565 

13  be  referred  to  the  superior  court  for  the  assessment  of  such  damages. 

14  Chapter  seventy-nine,  so  far  as  applicable,  shall  govern  such  assessment. 

15  The  amoimt  of  any  damages  so  assessed,  with  interest  thereon  from  the 

16  date  of  such  assessment  to  the  date  of  pa^Tuent  at  the  rate  allowed  by  law 

17  upon  judgments,  may  be  paid  by  the  owner  of  the  land  into  the  superior 

18  court  at  any  time  after  such  assessment  for  the  benefit  of  the  persons  or 

19  property  entitled  thereto;  and,  if  so  paid,  the  clerk  of  the  superior  court 

20  shall  so  certify  to  the  land  court,  ami  shall  pay  the  simi  so  received  by 

21  him  to  the  parties  to  whom  it  has  been  awarded.    If  no  damages  shall 

22  be  awarded  the  clerk  of  the  superior  court  shall  certify  that  fact  to  the 

23  land  court,    l^pon  such  certification  from  the  clerk  of  the  superior  court 

24  of  the  final  determination  of  such  proceedings  for  assessment  and  of  the 

25  payment  of  any  damages  therein  assessed,  the  title  may  be  registered 

26  free  from  any  restrictions,  or  in  case  of  registered  land  may  be  freed 

27  therefrom  by  the  entry  of  such  order  as  may  be  appropriate  therefor. 

1  Section  IS.     Any  party  aggrieved  by  a  finding  or  decision  of  the  Appeal. 

2  land  court  that  the  enforcement  of  any  such  restrictions  or  limitations  ^^''^'  ^'"'  *  ^' 

3  would  be  injurious  to  the  public  interests  may  appeal  therefrom  to  the 

4  supreme  judicial  court,  which  may  draw  from  the  facts  and  instruments 

5  stated  in  the  record,  finflings  or  decision  any  inferences  of  fact  that 

6  might  have  been  drawn  therefrom  at  a  trial,  and  reverse  or  order  such 

7  modification  of  said  findings  or  decision  as  justice  may  require.     The 

8  appeal  shall  be  taken  within  twenty  days  after  receipt  of  notice  of 

9  the  filing  of  such  finding  or  decision,  and  further  proceedings  under  the 

10  preceding  section  shall  be  suspended  until  after  the  determination  of 

11  said  appeal.    If  an  appeal  is  not  duly  prosecuted,  the  finding  or  decision 

12  shall  stand  as  if  no  appeal  had  been  taken. 


DETERMINATION  OF  BOUNDARIES   OF   FLATS. 

1  Section  19.     One  or  more  persons  holding  land  or  flats  adjacent  to  Petition  to 

2  or  covered  by  high  water  may  apply  by  petition  to  the  land  court  for  the  dJtermme '° 

3  settlement  and  determination  of  the  lines  and  boundaries  of  their  owner-  flatsj'etc.^'  "^ 

4  ship  therein. 

1864,  306,  §§  1,  2.  1871,  338,  §§  1,  2.  R.  L.  183,  §  1. 

1807,  205.  P.  S.  177,  §  1.  1906,  50,  §  1. 

1  Section  20.     Upon  such  petition  the  court  may  by  a  warrant  appoint  flgflou^l's 

2  one  or  more  commissioners  who  shall,  before  entering  upon  their  duties,  i87i,'33S,' 

3  be  sworn  to  faithfully  and  impartially  execute  the  warrant,  and  a  certifi-  p.  s.  177, 

4  cate  of  such  oath  shall  be  made  on  the  warrant  by  the  person  administer-  r  j^iss.  §  2. 

5  ing  it.    The  commissioners  shall  notify  all  persons  interested,  by  personal 

6  service  or  by  publication  as  the  court  orders,  to  appear  at  a  time  and 

7  place  named  and  be  heard  relative  to  a  proposed  survey  of  such  flats, 

8  and  thereafter  shall  survey  the  flats  of  the  petitioners  and  all  adjacent 

9  flats  owned  by  other  parties  whose  rights  may  be  afl'ected  by  a  deter- 

10  mination  of  the  lines  of  the  flats  of  the  petitioners,  shall  determine  the 

11  boundary  lines  thereof  and  report  to  the  court  the  boundaries  established 

12  for  each  owner,  with  a  plan  of  the  several  portions  of  flats  showing  the 

13  lines  established  for  each  owner,  which,  after  its  approval,  shall  by  order 

14  of  the  court  be  recorded  in  the  registry  of  deeds  for  the  county  or  dis- 

15  trict  where  said  flats  lie.     The  proceedings  upon  such  petition  shall  be 


2566 


PROCEEDINGS   FOR  SETTLEMENT   OF  TITLE  TO   'LAND.  [ChAP.   240. 


according  to  sections  two,  four,  six,  seven  and  eight  of  chapter  two  16 
hundred  and  forty-one,  so  far  as  appHcable  thereto.  17 


Effect  of 

report  and 

plan. 

1871,  338,  §  3. 

P.  S.  177,  §  3. 

R.  L.  183,  §  3. 


Section  21.     When  the  report  and  plan  of  said  commissioners  has  1 

been  accepted  by  the  court  and  recorded  as  aforesaid,  it  shall  forever  fix  2 

and  determine  the  rights  of  all  persons  and  parties,  except  where  definite  3 

boundary  lines  have  been  established  by  parties  legally  authorized  to  4 

establish  them.  5 


Costs. 

1871,  338,  §  5. 
P.  S.  177,  §  5. 
R.  L.  183,  §  4. 
129  Mass.  413. 


Section  22.     The  ex-penses  and  charges  of  the  commissioners  shall  1 

be  allowed  by  the  court;    the  other  costs  shall  be  taxed  in  the  usual  2 

manner,  and  the  whole  shall  be  apportioned  by  the  court  among  all  3 

parties  interested  in  the  determination  of  the  boundary  lines  in  such  4 

flats,  and  shall  be  paid  in  proportion  to  the  value  of  the  interests  which  5 

they  respectively  hold  therein.  6 


Court  may 

determine 

boundaries 

instead  of 

appointing 

commissioners. 

Subsequent 
purchasers, 
etc.,  may  be 
made  parties. 
1878,  103. 
P.  S.  177,  §  6. 
R.  L.  183,  §  5. 


Section  23.     Instead  of  appointing  the  commissioners  authorized  by  1 

section  twenty,  the  court  may  exercise  the  powers  and  duties  of  such  2 

commissioners.  1906,  so,  §  2.  3 

Section  24.    Whoever,  during  the  pendency  of  proceedings  for  the  1 

division  of  flats,  acquires  by  purchase,  devise  or  descent,  or  by  the  en-  2 

forcement  of  a  mortgage  or  lien,  an  interest  or  title  in  or  to  any  flats  which  3 

are  the  subject  matter  of  such  proceedings,  may  by  order  of  the  court  4 

be  made  a  party  to  such  proceedings,  and  shall  be  chargeable  with  such  5 

share  of  the  expenses  as  the  court  orders.  6 


Boundaries 
may  be  deter- 
mined concur- 
rently with 
registration. 
1906,  SO,  §  3. 


Section  25.  A  petitioner  for  registration  may  In  his  petition  request 
the  court  to  proceed  under  sections  nineteen  to  twenty-four,  inclusive, 
concurrently  with  the  registration  proceedings,  and  the  court  may  com- 
ply with  the  request,  if  such  compliance  seems  conducive  to  justice  and 
the  rights  of  all  parties. 


TOm^onieaith.      Section  26.     Proceedings   under   sections  nineteen   to   twenty-five,  1 

1871'  338'  1 6     inclusive,  shall  not  affect  any  right  or  title  of  the  commonwealth  to  any  2 

P-  s-'i77,'§  7.     land  or  flats,  unless  it  consents  to  become  a  party  thereto.  3 

R.  L.  1S3,  §  o. 


Fiduciary,  etc., 
may  petition 
land  court 
to  estabUsh 
power  or 
authority. 
1906,  344,  §  1. 


determination  of  questions  relating   to   power  to   convey   or 
mortgage  real  est.ate  under  written  instruments. 

Section  27.    Any  person  having,  in  a  representative  or  fiduciary  1 

capacity  or  otherwise,  a  power  or  authority  created  by  any  written  2 

instrument  to  sell,  convey,  mortgage  or  otherwise  transfer  any  interest  3 

in  real  estate  may  file  a  petition  in  the  land  court  setting  forth  the  act  4 

or  acts  which  he  proposes  to  do  by  virtue  of  such  power  or  authority,  5 

and  praying  that  his  power  or  authority  under  such  wTitten  instrument  6 

to  do  such  act  or  acts  may  be  established.  7 


Court  may 
determine 
question,  etc. 
1906,  344,  §  2. 


Section  28.     Upon  such  petition,  after  such  notice  as  the  com-t  may  1 

direct,  it  may  determine  the  existence  and  extent  of  the  power  or  au-  2 

thority  of  the  petitioner  to  do  such  act  or  acts,  including  the  existence  of  3 

the  necessity  for  its  exercise  and  also  any  other  fact  or  circumstance  re-  4 

quired  for  the  exercise  of  such  power  or  authority.  5 


Ch.\p.  241.] 


PARTITION   OF   LAND. 


2567 


PROCEDURE. 


ure 
this 


1  Section  29.     Except  as  otherwise  provided,  procedure  in  the  land  ^1"^^^^ 

2  court  under  this  chapter  shall  be  that  provided  by  sections  fifteen  to  ^ggj'^.g 

3  twenty-five,  inclusive,  of  chapter  one  hundred  and  eighty-five.  §§  i-s. 

1906,  344,  §  3.  1910,  SCO,  §§  6,  7. 


CHAPTER    241 


PARTITION  OF  L.IND. 


Sect. 

1.  Who  may  have  partition. 

2.  Probate  courts  to  have  exclusive  juris- 

diction. 

3.  Case  in  two  or  more  counties  to  remain 

within    jurisdiction   of   court   where 
proceedings  were  begun. 

4.  Partition  may  be  made  of  all  or  part  of 

land. 

5.  Division  into  shares. 

6.  Form  of  petition. 

7.  Notice  to  be  filed  in  theregistry  of  deeds. 

8.  Notice  to  be  given  by  citation,  etc. 

9.  Absent,     incompetent     and      undeter- 

mined parties. 

10.  Interlocutory  decree. 

11.  Dispute  as  to  ownership  of  share. 

12.  Commissioners,  duties,  etc. 

13.  If  land  Ues  in  different  counties. 

14.  Partition  of  land  indivisible. 

15.  Payment  or  security  if  money  awarded. 

16.  Return  may  be  set  aside,  amended,  etc. 

17.  Court  may  order  examination  of  title, 

etc. 
IS.  Effect  of  partition. 
19.  Remedy  of  stranger  claiming  a  share 

assigned. 


Sect. 

20.  Remedy   of   stranger   claiming   as   co- 

tenant. 

21.  Remedy  of  stranger  holding  title  para- 

mount, etc. 

22.  Costs,  how  paid. 

23.  Compensation  for  improvements. 

24.  Improvements  made  before  new  parti- 

tion. 

25.  Equity  jurisdiction. 

26.  Death  of  part  owner  during  proceed- 

ings. 

27.  Party  evicted. 

28.  Mortgagee,  etc.,  of  co-tenant. 

29.  Improvements  made  by  person  evicted. 

30.  Ti-usteeship,  etc.,  not  to  prevent  parti- 

tion. 

31.  Partition  by  sale. 

32.  Commissioners  not  liable. 

33.  Penalty  for  not  disclosing  attachment 

or  lien. 

34.  Disposal  of  proceeds  unclaimed. 

35.  Appointment  of  trustee. 

36.  Division  of  water  rights  and  other  in- 

corporeal hereditaments. 

37.  Partition  of  water  of  a  natural  stream, 

etc. 


1  Section  1.     Any  person,  except  a  tenant  by  the  entirety,  ownina;  a 

2  present  undivided  legal  estate  in  land,  not  subject  to  redemption,  shall 

3  be  entitled  to  have  partition  in  the  manner  hereinafter  provided.     If 

4  such  estate  is  in  fee,  he  shall  be  entitled  to  partition  in  fee;  if  a  life  estate 

5  or  a  term  for  years,  he  shall  be  entitled  to  partition  thereof  to  continue  so 
G  long  as  his  estate  endures.  A  life  tenant  or  a  tenant  for  years  of  whose 
7  term  at  least  twenty  years  remain  unexpired  may,  in  the  discretion  of 
S  the  court,  have  partition  of  the  fee.  The  existence  of  a  lease  of  the  whole 
9  or  a  part  of  the  land  to  be  divided  shall  not  prevent  partition,  but  such 

10  partition  shall  not  disturb  possession  of  a  lessee  under  a  lease  covering 

1 1  the  interests  of  all  the  co-tenants. 


1S57,  298,  §  14. 


Who  may  have 
partition. 
1B93,  8,  §  1. 
1742-3,  24,  §  1; 
29.  §  1. 

1748-9,  12,  §  1. 
1752-3,  13, 
§§1,2. 

1760-1,  13.  §  1. 
17S3,  36.  §  13; 
41,  §  1;52,  5  2. 
1785.  62,  §  2. 
1817,  190, 
§§  24,  25. 
1820,  54.  §  1. 
R.  S.  103.  §§  1. 
3-5,  50,  (U. 
1853,  410,  §  1. 


G.  S.  104,  §  9: 

136,  §§  1,3-5.48,01,67. 

P.  S.  123,  §  11; 

178.  §§1,3,  4,  48,60,  68. 

R.  L.  131,  §  11: 

184,  §§  1-3,34,  44,50. 

1912,  135. 

1917,279,  §11,40. 

4  Mass.  122. 

10  Mass.  5. 


13  Pick.  237,  251. 

5  Met.  1. 

10  Met.  408. 

6  Cush.  472. 
12  Cush.  170. 
3  Gray,  111. 
15  Gray,  499. 

7  Alien,  192,  196. 

8  Allen,  186. 
10  Allen,  144. 


109  Mass.  181,  513. 
112  Mass,  42. 
120  Mass.  174. 
135  Mass.  317. 
140  Mass.  82,  430. 
163  Mass.  325. 
170  Mass.  68. 
179  Mass.  200. 
216  Mass.  61. 
229  Mass.  566. 


2568 


PARTITION   OF   LAND. 


[Ch.\p.  241. 


tohav*ee™-"'^       Section  2.     Ppobate  courts  shall  have  exclusive  jurisdiction  of  all  1 

diction.'"'^      petitions  for  partition.    Any  such  petition  may  be  filed  in  the  probate  2 

29*f§^i  ^2 '  ^  ^'  court  for  any  comity  where  any  part  of  the  land  included  in  the  peti-  3 

i74s-9.'i2,  §1.  tion  lies,  and  may  include  any  or  all  of  the  common  land  within  the  4 

§§r,3.'    '        commonwealth.  nss.ae,  §§12,13;  4i,§i.  5 


1817,  190,  §§  24.  28. 
R.  S.  103,  §§  2,  50,  61. 
1842,  14,  §  1. 
G.  S.  136,  §§  2,  48,  60. 
1869,  121,  §  1. 


1874,  266,  §§  1,  2. 
P.  S.  178,  §§  2,  45, 
46,  48,  69. 
1888,  346,  5  1. 
1892,  169,  I  1. 


R.  L.  184,  §§  2,  31, 
32,  34,  43. 
1912,  135. 
1917,  279,  §§2,  40. 
213  Mass.  167. 


mme  TOunties'       SECTION  3.     If  a  casc  is  withiu  the  jurisdiction  of  the  probate  court  in  1 

wiSTuris-      two  or  more  counties,  the  court  in  which  proceedings  are  first  begun  2 

where'proceed-'  ^'^'^ll  retain  jurisdiction  thereof,  which  shall  exclude  the  jurisdiction  of  3 

ingswere          probatc  courts  of  othcr  couiitics;  but  this  shall  not  prevent  the  probate  4 

R.  s.  103, 1 72.  court  in  any  other  county  where  a  part  of  the  common  land  lies,  not  5 

p.'s.'i78,'§6'4.'  included  in  the  original  petition,  from  making  partition  thereof.  6 

R.  L.  184,  §46.  1917,  279,  §§3,  40.  11  Allen,  187. 


Partition  may 
be  made  of  all 
or  part  of  land. 
1742-.3,  24,  §  1; 
29,  §  1. 

1752-3,  13,  5  1. 
1783,  36,  §  12. 
R.  S.  103,  §§  2, 
60,  55. 

G.  S.  136,  §§  2, 
48,  64. 


Section  4.  The  court  may  make  partition  of  all  or  any  portion  of  the 
land  included  in  the  petition  of  which  the  parties  thereto  are  co-tenants; 
but  if  all  of  the  common  land  is  not  included  in  the  petition,  the  court 
may,  upon  request  of  any  party  thereto,  seasonably  filed,  cause  any  other 
part  of  the  common  land  to  be  included,  unless  a  petition  for  partition 
thereof  is  pending  in  another  county. 


p.  S.  178,  i 
1888,  346, 


i  2,  48,  54. 


R.  L.  184,  5§2,34,  39. 
1012,  135. 


1917,279,  §5  4,40. 
159  Mass.  409. 


Division  into 
shares. 
R.  S.  103, 
§§21,  66. 
G.  S.  136. 
§§  25,  55. 
P.  S.  178, 
§§  25,  55. 
1885,  293. 


Section  5.  The  court  may  set  off  to  the  petitioner  his  share,  leaving 
the  residue  of  the  land  for  the  persons  entitled  thereto,  subject  to  a 
future  partition;  or  it  may  set  oft"  to  the  persons  entitled  to  the  residue 
their  respective  shares  therein.  If  two  or  more  co-tenants  consent  to 
hold  their  shares  undiNaded,  such  shares  may  be  so  set  off. 

R.  L.  184,  §§  2,  15,  40.  1917,  279.  §§  5,  40. 


Form  of 
petition, 
1786,  53.  §  1. 
R.  S.  103, 
§§  6,  14. 
G.  S.  136, 
§§  6,  16. 
P.  S.  178, 
§§  5,  14. 
R.  L.  184, 
§§4,S. 
1917,  279, 
§§6,40. 
9  Pick.  66. 
9  Allen.  260. 
185  Mass.  107. 
187  Mass.  279. 


Section  6.  The  petition  shall  set  forth  on  oath  the  nature  and  1 
extent  of  the  share  of  each  co-tenant,  so  far  as  known  to  the  petitioner,  2 
stating  whether  he  has  an  estate  of  inheritance,  for  life  or  for  years,  3 
whether  in  possession,  remainder  or  reversion,  and  whether  vested  or  4 
contingent.  It  shall  contain  a  description  of  each  parcel  of  land  suffi-  5 
ciently  specific  for  identification.  If  the  common  title  is  derived  by  6 
will  or  inheritance  from  a  common  ancestor,  the  name  of  the  testator  7 
or  common  ancestor  shall  be  given;  if  under  a  deed,  reference  shall  be  8 
made  thereto.  The  petition  shall  be  in  the  alternative,  praying  for  9 
division  of  the  land  or  for  the  sale,  either  public  or  private,  of  all  or  10 
any  part  thereof  which  the  court  may  find  cannot  be  advantageously  11 
divided.  If  a  private  sale  is  desired,  the  minimum  sum  for  which  the  12 
sale  may  be  made  shall  be  stated.  Only  persons  having  legal  title  to  13 
an  estate  for  years,  for  life  or  in  fee,  whether  in  possession,  reversion  or  14 
remainder,  shall  be  necessary  or  proper  parties.  Mortgagees,  lienors,  15 
attaching  creditors  and  other  persons  having  or  claiming  encumbrances  16 
on  the  land  shall  not  be  parties,  but  shall  be  named  in  the  petition  and  1 7 
given  such  notice  as  the  court  may  order,  and  shall  be  permitted  to  IS 
intervene  so  far  as  may  be  necessary  to  protect  their  interests  in  the  19 
land  or  to  establish  their  rights  in  the  proceeds  of  a  sale.  20 


Ch.\P.    241.]  PARTITION   OF   LUSTD.  2569 

1  Section  7.     Upon  the  filing  of  a  petition  for  partition,  the  petitioner  Notice  to  be 

2  shall  forthwith  cause  to  be  filed,  in  the  registry  of  deeds  for  each  registry  istry'ofVee^R' 

3  district  where  any  of  the  land  included  in  the  petition  lies,  a  notice  of  the  i'^^''  ^ra.  §  7. 

4  same,  containing  a  brief  description  of  the  land  in  such  district  included 

5  therein,  and  the  names  of  all  persons  appearing  in  the  petition  as  parties. 

6  If  the  probate  proceedings  are  at  any  time  amended,  either  by  the  in- 

7  elusion  of  more  land  or  by  adding  new  parties,  a  further  notice  thereof 

8  shall  be  filed  forthwith  in  the  registry  district  where  said  land  lies.    No 

9  interlocutory  decree  for  partition  or  sale  shall  be  made  by  the  court 

10  until  it  appears  by  affidavit  that  sucli  notices  have  been  filed.     If  any 

11  part  of  the  land  is  registered  land,  the  petitioner  shall,  in  filing  said 

12  notices,  comply  with  section  eighty-six  of  chapter  one  hundred  and 

13  eighty-five. 

1  Section  8.     Notice  shall  be  given  by  a  citation  containing  a  brief  gjven  by°cHa- 

2  description  of  the  land,  and  the  minimum  price  in  case  it  is  desired  to  j'°"^_^3'^24  s  3 

3  sell  the  land  or  anv  part  thereof  at  private  sale.    The  citation  shall  be  i"48-9!  12!  s  2! 

4  addressed  to  all  known  respondents  by  name,  and,  in  addition,  in  ex-  1733. 41.  §'3. 

5  press  terms  to  all  other  persons  interested.     Said  notice  shall  be  given  g-'u,  53.        ' 

6  to   each   respondent,  whether  within  or  without  the   commonwealth,  i(>4'2?m'.  ^^  ^' 

7  whose  address  is  known,  by  serving  the  same,  either  personally  or  by  9  fiiVf'^^^' 

8  registered  mail,  fourteen  davs  at  least  before  the  return  dav;    and  if  }882, 55 

9  any  party  is  not  so  served,  by  publishing  the  notice  once  m  each  or  e.  35. 

10  three  successive  weeks  in  such  newspaper  as  the  court  shall  order,  the  §§  8,'4o. ' 

11  last  publication  to  be  one  day  at  least  before  the  return  day,  and  by 

12  mailing  a  copy  thereof  to  the  last  known  address  of  such  party  fourteen 

13  days  at  least  before  the  return  day.     Proof  of  service  and  notice  shall 

14  be  made  by  affidavit,  setting  forth  the  particulars  of  the  service  on  each 

15  respondent,  and  any  other  notice  given,  and  if  actual  notice  has  been 

16  given  by  registered  mail  the  affidavit  shall  so  state.    The  court  may  in 

17  its  discretion  cause  further  notice  to  be  given. 

1  Section  9.     If  any  party  named  in  the  petition  has  not  been  served  ■*'^rat'amf°'"' 

2  personally  with  the  citation  and  has  not  appeared,  or  is  a  minor  or  undetermined 

3  under  other  disability  and  has  no  guardian  or  other  legal  representative  1742-3',  29. 5  3. 

4  within  the  commonwealth,  or  if  any  person  whose  name  is  unknown,  or  1700-1!  is!  §  2! 

5  who  is  unascertained  or  not  in  being,  appears  by  the  record  in  the  case  isi?!  lob,  §'2(5. 

6  to  have  an  estate,  vested  or  contingent,  as  a  co-tenant  of  the  land  of  lssI.  im'.  1 1^' 

7  which  partition  is  sought,  the  court  shall  appoint  a  suitable  person  to  JUg'Hy' 

8  act  for  him  in  the  proceedings.  isss,  137. 

G.  S.  130.  §§  52,  S3,  69.       P.  S.  178,  §§  52.  53.  62,  70.       1917,  279,  §§  9,  40. 
1877,  loS,  §  2.  R.  L.  184,  §§  36,  52.  109  Mass.  513. 

1  Section  10.     If  it  is  found  that  the  petitioner  is  entitled  to  have  interlocutory 

2  partition  for  the  share  claimed  or  for  any  less  share,  the  court  shall  ifso^^ss.  5 1. 

3  make  the  interlocutory  decree  that  partition  be  made,   and  therein  §;  |;  \°l\  |  go! 

4  determine  the  persons  to  whom  and  the  proportions  in  which  the  shares  ^^^^  ^fSi  Vi*' 

5  shall  be  set  oft".    The  petition  shall  not  be  defeated  by  the  pa\-ment  by  a  R  l!  is4!  s  12. 

6  party  of  a  mortgage,  lien,  tax  or  other  encumbrance  upon  the  land,  if  §"§  16, 46.' 

7  the  other  parties  are  entitled  to  redeem  from  such  payment;    but  the  iic'ush.  les. 

8  interlocutory  decree  shall  contain  such  terms  and  conditions  relative  to  ^*°  ^^^''^'  ^^' 

9  redemption  by  a  contribution  on  account  of  any  such  payment  as  the 
10  court  may  deem  equitable. 


2570 


PARTITION    OF   L.USTD. 


[Ch.\p.  241. 


Dispute  fts  to 

ownership  of 

share. 

R.  S.  103. 

§§41,42. 

G.  S.  136, 

§§  3S,  39. 

P.  S.  178, 

§§  16,  17. 

R.  L.  184,  §  10. 

1917,279,511. 


Commissioners, 
duties,  etc. 
1742-3.  24. 
§§1,2;29.  §  1. 
174.8-9,  12,  §  1. 
1752-3,  13,  §  1. 
1759-60. 
31,  §  1. 
1783,  36,  §  12; 
41.  §§  1,3. 
R.  S.  103, 
§§  20,  22-24, 
29,  SI. 
G.  S.  136. 
§§  21-24, 
29,  49. 
P.  S.  178, 
§§  20-21.  49. 


Section  11.     If  the  ownership  of  any  share  appears  to  be  in  dispute  1 

or  uncertain,  the  court  may,  in  its  discretion,  without  determination  2 

of  such  question,  order  the  partition  to  proceed  by  setting  off  the  re-  3 

maining  shares,  or  by  sale.    The  land  not  set  off,  or  the  proceeds  of  tlie  4 

share  in  dispute  or  uncertain,  may  be  left  for  the  parties  entitled  thereto  5 

in  a  further  partition  or  distribution  in  such  manner  and  upon  such  pro-  6 

ceedings  as  the  court  may  order.     Tlie  interlocutory  decree  shall  not  7 

preclude  the  parties  sharing  in  the  partition  from  any  share  to  which  8 

they  may  be  entitled  in  a  subsequent  partition  or  distribution.  9 

Section  12.     If  the  court  determines  the  petitioner  entitled  to  parti-  1 

tion,  it  shall  thereupon  appoint  one  or  more  disinterested  commissioners  2 

and  issue  a  Avarrant  to  them  to  make  partition.     The  commissioners,  3 

before  entering  upon  their  duties,  shall  be  sworn  to  execute  the  warrant  4 

faithfully  and  impartially,  and  a  certificate  of  the  oath  shall  be  made  5 

on  the  warrant  by  the  person  administering  it.    They  shall  give  at  least  6 

seven  days'  notice  of  the  time  and  place  appointed  for  making  the  7 

partition,  either  personally  or  by  registered  mail,  to  all  known  persons  8 

interested  therein,  and  shall  make  and  sign  a  report  of  their  doings  and  9 

return  it  with  their  warrant.          R.  l.  is4,  §§  13, 37.          i9i7, 279,  §§  12, 40.  10 


If  land  lies  in 
different 
counties. 
R.  S.  103,  I  52. 
G.  S.  130,  §  50. 
P.  S.  178,  §  50. 
R.  L-  184,  §  38. 
1917.  279, 
§§  13,  40. 


Section  13.  If  the  land  lies  in  different  counties,  the  court  may  in 
its  discretion  issue  separate  warrants  and  appoint  different  commis- 
sioners for  each  county,  or  for  two  or  more  counties  together,  in  which 
case  the  partition  shall  be  made  of  the  land  in  each  county,  or  group 
of  counties,  as  if  there  were  no  other  land  to  be  di\'ided. 


Partition  of 
land  indivisible. 
1692-3,  14,  §  1. 
1759-60, 
30.  §  2. 
1783.36,  §§  6, 
15;   41.  §  2. 
1817,  190, 
§§  24,  29. 
R.  S.  103, 
|§  25,  26,  57. 
1838,  28. 


Payment  or 
security  if 
money 
awarded. 
1850,  239. 
G.  S.  136,  §  71. 
P.  S.  178,  §  71. 
R.  L.  184.  §  53, 
1917.  279, 
§§  15,  40. 


Return  may 
be  set  aside, 
amended,  etc. 
1742-3.24,  §  1; 
29,  §  1. 

1748-9,  12,  §  1. 
1752-3,  13,  §  1. 
1783,41,  §  1. 
1817,  190,  §  20. 
1820,  54,  §  2. 
R.  S.  103, 
§§  29,  30,59. 
1847,  170. 
C;.  S.  136. 
§§  29,  74,  75. 
P.  S.  178, 
§§24,74,75. 
1SS8,  340,  §  3. 
R.  L.  184, 
§§  13,  56,  57. 


Section  14.  If  a  part  of  the  land  cannot  be  divided  without  great 
inconvenience  to  the  owners,  or  is  of  greater  value  than  the  share  of 
any  partj',  or  if  all  the  land  cannot  be  divided  without  such  incon- 
venience, the  whole  or  any  part  thereof  may  be  set  off'  to  any  one  or 
more  of  the  parties,  with  his  or  their  consent,  upon  payment  by  him 
or  them  to  any  one  or  more  of  the  others  of  such  amounts  of  money  as 
the  commissioners  award  to  make  the  partition  just  and  equal. 


G.  S.  130,  §§  20,  56,  58. 
P.  S.  178.  §§  26.  56. 
R.  L.  184,  §§  10,41. 


1917.279,  §§  14,40. 
15  Pick.  364. 


11  Gray,  490. 
181  Mass.  490. 


Section  15.  If  money  is  awarded  to  make  the  partition  just  and 
equal,  the  court  shall  be  satisfied,  before  the  partition  is  confirmed, 
that  the  money  has  been  paid  or  secured  to  the  parties  entitled  thereto. 
]\Ioney  awarded  on  account  of  shares  in  dispute  or  uncertain  may  be 
ordered  to  be  deposited  in  the  manner  pro^'ided  in  section  thirty-four. 

16  Mass.  122.  7  Pick.  209.  8  Met.  365.  3  Gray,  536. 

Section  16.  The  court  may  after  hearing  accept  and  confirm  the 
return  of  the  commissioners,  or  set  it  aside  and  commit  the  case  anew 
to  the  same  or  to  other  commissioners  having  the  same  powers  as  those 
originally  appointed;  or  it  may,  after  a  hearing,  amend  the  return,  and 
accept  and  confirm  it  as  amended.  After  the  return  of  the  commis- 
sioners has  been  accepted  and  confirmed,  the  court  shall  thereupon 
enter  a  decree  that  the  partition  be  firm  and  effectual  forever.  If  the 
partition  is  by  division,  the  commissioners  shall  record  a  copy  of  the 
decree,  certified  by  the  register  of  probate,  in  the  registry  of  deeds  for 
each  district  where  any  of  the  land  lies,  together  M'ith  so  much  of  the 
return,  as  finally  confirmed,  as  relates  thereto;    or,  if  any  part  of  the 


1 

2 

3 

4 
5 
6 
7 
8 
9 

10 
11 


Ch.\P.   241.]  PARTITION   OF   L\ND.  2571 

12  land  is  registered  land,  they  shall  in  recording  the  same  comply  with  1917,279, 

13  section  ninety-two  of  chapter  one  hundred  and  eighty-five. 

11  AUen,  187.  152  Mass.  136. 

1  Section  17.     The  court  may  at  any  time  direct  an  examination  of  the  Court  may 

2  title,  or  the  making  of  a  plan,  of  any  land  included  in  the  petition,  or  such  tTon  oUi"™  e?c. 

3  investigation  relating  to  the  description  or  title  of  any  of  it  as  seems  useful  ^°^''''  ^'''''  ^ ''''' 

4  or  desirable  for  its  better  division  or  sale.    If  it  appears  from  the  report 

5  of  a  title  examiner  or  from  any  other  source  that  there  are  necessary 

6  parties,  as  defined  in  section  six,  who  were  not  made  parties  to  the  petition, 

7  and  have  not  appeared,  the  court  shall,  before  proceeding  further,  cause 

8  the  petitioner  to  amend  his  petition  by  making  such  persons  parties, 

9  antl  to  give  notice  to  them  in  the  manner  provided  in  section  eight.    The 

10  court  may  also  cause  notice  to  be  gi\-en  to  any  encumbrancer  whose 

11  interest  may  be  disclosed  by  the  examination  or  otherwise.    If  it  appears 

12  at  any  stage  of  the  proceedings  that  the  land  is  improperly  described,  the 

13  court  may,  before  proceeding  further,  reciuire  the  petitioner  to  amend 

14  his  petition  by  inserting  a  correct  description. 

1  Section  18.     The  partition  by  division,  when  confirmed  and  estab-  Effect  of 

2  lished  by  a  final  decree  under  section  sixteen,  or  the  sale  if  partition  is  isi7,  i90,  §20. 

3  made  by'sale,  shall  be  conclusive  upon  all  persons  named  in  the  petition  §§  ss.^sl.' 

4  or  interested  in  the  land  therein  described  who  appeared  in  the  case  or  ^j-  fo.^e".' 

5  who  waived  notice  or  assented  in  writing  to  the  same,  or  to  whom  due  i^^^l'lfg- 

6  notice  was  given  in  accordance  with  section  six  or  eight,  or  who  were  ft^^i^'g^^s, 

7  represented  as  provided  in  section  nine,  and  upon  all  persons  claiming  issSUes,  §2. 

8  through  or  under  them  or  any  of  them,  and,  if  the  common  title  is  derived  §  j  22, 45.' 

9  through  the  settlement  of  the  estate  of  a  deceased  person  in  any  probate  §f '/s,^4o.' 

10  court  within  the  commonwealth,  upon  all  the  heirs  and  devisees  of  such  lAifen.^us. 

11  deceased  person  to  whom  the  notice  aforesaid  was  given  or  who  were  so  jo^Hen'iob 

12  represented,  and  upon  all  persons  claiming  through  or  under  them.  i7«  Mas.s.  453. 

1  Section  19.     A  person  who  was  not  made  a  party  and  has  not  ap-  Remedy  of 

2  peared,  who  claims  the  whole  or  any  part  of  the  share  assigned  to  or  left  ing'a'share'""' 

3  for  any  of  the  supposed  co-tenants  in  the  decree  for  partition,  shall  be  r.^'|"i'o3, 

4  concluded  by  the  decree,  so  far  as  it  relates  to  the  partition  and  the  assign-  |,^  f\^' 

5  ment  of  the  shares,  as  if  he  had  been  a  party  to  the  proceedings;   but  he  Pl^'ifl- 

6  may  bring  his  action  for  the  share  claimed  by  him  against  the  person  to  §§'39.40! 

7  whom  it  was  assigned  or  for  whom  it  was  left.     Such  action  shall  be  i9i7i  279! 

8  brought  against  the  tenant  in  possession,  as  if  the  demandant  had  origi-      ^®'  *°" 

9  nally  claimed  the  specific  parcel  demanded  instead  of  an  undivided  part 

10  of  the  land;    and  it  may  be  brought  within  the  time  in  Avhicii  it  might 

11  have  been  brought  if  no  such  decree  for  partition  had  been  rendered. 

12  If  partition  is  made  by  sale,  the  claimant  may  recover  the  share  of  the 

13  proceeds  to  which  he  is  entitled  by  action  against  the  persons  to  whom 

14  the  proceeds  were  paid,  or,  before  such  payment,  by  a  petition  in  equity 

15  in  the  probate  court  in  which  the  partition  was  made,  to  which  the 

16  commissioner  or  commissioners  and  all  known  claimants  of  such  share 

17  shall  be  made  parties  defendant. 

1  Section  20.     A  person  who  was  not  made  a  party  and  has  not  ap-  Remedy  of 

2  peared  and  who  claims  part  of  the  land  as  a  co-tenant  with  any  of  those  cKims  as 

3  who  were  parties  to  the  action,  shall,  if  the  share  so  claimed  was  unknown  i°."fe\"io3,' 

4  or  not  allowed  and  left  for  him  in  the  process  of  partition,  be  concluded  by  ^^  f'lst]  §  40. 


2572 


PARTITION    OF   L.\ND. 


[Chap.  241. 


p.  S.  17; 
R.  L. 
19:7,  279, 
H  20,  40. 
22  Pick.  316. 


Vr4  ^2^7  ^^^  decree  so  far  as  it  relates  to  the  partition,  but  may,  subject  to  section 
eighteen,  brino;  an  action  for  the  share  claimed  by  him  against  each  of 
the  persons  holding  any  part  of  the  land  under  the  decree  for  partition ; 
and,  if  he  prevails,  shall  recover  against  each  the  same  proportion  of  the 
part  so  held  that  he  was  entitled  to  claim  out  of  all  the  land  before  the 
partition.  If  the  partition  was  made  by  sale,  he  may  in  like  manner  10 
recover  his  portion  of  the  proceeds,  as  provided  in  the  preceding,  section.  11 


Remedy  of 
stranper  hold- 
ing title  para- 
mount, etc. 
R.  S.  103. 
§§  38,  69. 
G.  S.  136, 
§§  35,  6,5. 
P.  S.  178, 
§§  38.  63. 
1882,  6,  §  2. 


Section  21.     A  person  who  has  not  appeared  and  who  claims  to  hold  1 

by  title  paramount  to  that  under  which  the  petitioner  claims  as  a  co-  2 

tenant  shall  not  be  concluded  by  the  partition,  but  may  maintain  his  3 

action  for  the  land  against  any  or  all  of  the  parties,  or  persons  holding  4 

under  them,  within  the  time  in  which  he  might  have  brought  such  action  5 

if  the  petition  for  partition  had  not  been  filed.  6 

R.  L.  184,  §§  25,  43.  1917.  279,  §§  21,  40. 


Costs,  how 
paid. 

1752-3,  13,  §  2. 
1783,  36,  §  14. 
178G,  53,  §  1. 
1817,  190,  §  30. 
R.  S.  103, 
§§  17,  49,  60, 
1S57,  149. 
G.  S.  136,  §§19, 
44,  45,  59. 
1877.  106. 
P.  S.  178,  §§  18, 
29.  30.  58. 
R.  L.  184, 
§§11,14,42,52. 
1917,  279, 
§§  23,  40. 

4  Pick.  246. 
19  Pick.  539. 

5  Allen,  96. 
11  Allen,  104, 
187. 

133  Mass.  413. 


Section  22.  The  reasonable  expenses  and  charges  of  partition  pro-  1 
ceedings,  including  examination  of  title  and  preparation  of  plan  ordered  2 
by  the  court  under  section  seventeen,  and  the  fees  of  counsel,  of  the  com-  .3 
missioners,  and  of  all  agents,  guardians  and  other  persons  appointed  to  4 
represent  interests  in  accordance  with  section  nine,  shall  be  determined  .5 
by  the  court,  and  in  case  of  sale  paid  by  the  commissioners  out  of  the  6 
proceeds;  and  in  case  of  partition  by  division  shall  be  paid  by  the  peti-  7 
tioner,  who  shall  be  entitled  to  contribution  from  the  parties  to  whom  8 
shares  of  the  land  are  set  off  who  take  a  vested,  and  not  contingent,  in-  9 
terest.  Such  contribution  shall  be  in  proportion  to  the  interests  of  the  10 
parties  unless  the  court  finds  a  difl'erent  proportion  more  equitable.  11 
Costs  may  also  be  awarded  under  section  forty-five  of  chapter  two  12 
hundred  and  fifteen.  Execution  may  issue  for  said  contribution  and  13 
costs.  14 


Compensation 
for  improve- 
ments. 
1850.  278, 
§§1,2. 
G.  S.  136, 
§§46,47. 
P.  .S.  178. 
§§  31,  32. 
R.  L.  184, 
§§  19,  20. 
1917,  279, 
§§  24,  40. 
13  Met.  462. 
105  Mass.  412. 
131  Mass.  480. 
135  Mass.  317. 
190  Mass.  449. 


Section  23.  If  the  court  in  which  partition  proceedings  are  pending  1 
finds  that  one  of  the  co-tenants  has  erected  any  buildings  or  made  other  2 
permanent  improvements  on  the  common  land,  it  may,  if  justice  and  3 
equity  so  require,  award  such  compensation  as  it  deems  proper  for  the  4 
value  of  such  buildings  or  other  improvements,  not  exceeding,  however,  5 
the  actual  amount  by  which  the  market  value  of  the  common  land  has  6 
been  increased  thereby;  and  in  awarding  such  compensation  the  court  7 
may  deduct  any  benefit  which  the  party  claiming  compensation  has  8 
received  from  the  common  land.  The  court  may  make  orders  and  9 
decrees  for  the  enforcement  or  protection  of  any  such  claim,  and  in  case  10 
of  partition  by  division  may  order  the  improved  part  set  oft'  to  the  party  11 
who  made  the  improvement,  and  the  land  divided  as  if  the  improvement  12 
had  not  been  made.  13 


Improvoments 
made  before 
new  partition. 
1742-3.  24,  §  4. 
1748-9,  12,  §  5. 
1783,41,  §  3. 
R.  S.  103, 
§§  37,  70. 
G.  S.  136,  §  72. 


Section  24.  If  after  a  first  partition  improvements  have  been  made 
on  a  part  of  the  land  which,  by  a  new  partition,  is  taken  from  the  share 
of  the  party  who  made  the  improvements,  he  shall  be  entitled  to  com- 
pensation therefor,  to  be  awarded  and  enforced  as  provided  in  the  pre- 
ceding section.  p.  s.  i78,  §  72.  n.  l.  i84,  §  54.  1917, 279,  §§  25, 40. 


Equity  juris- 
diction. 
R.  S.  69,  §  12. 
G.  S.  100,  §  22 
1880,  163. 


Section  25.  The  probate  court  in  which  a  petition  has  been  brought  1 
under  this  chapter  shall  jiave  jurisdiction  in  equity  over  all  matters  rclat-  2 
ing  to  the  partition,  and,  in  case  of  sale,  over  the  distribution  of  the    3 


Chap.  241.]  partition  of  land.  2573 

4  proceeds  thereof;    also  to  hear  and  determine  all  matters  of  accounting  p.  s.  i4i,  §27. 

5  between  the  parties  to  the  petition  in  reference  to  the  common  land,  and  1892]  no! 

6  to  appoint  one  or  more  receivers  to  take  possession  of  the  common  land  1910;  :oo.'    ^' 

7  or  any  part  thereof,  and  collect  the  rents  and  profits  therefrom.    Such  Jirifals'.  \Si.' 
S  jurisdiction  may  be  exercised  upon  petition  according  to  the  usual  course 

9  of  proceedings  in  the  probate  court.    Such  receiver  shall  give  bond  in  such 

10  amount  and  with  such  sureties  as  the  court  shall  order,  and  shall  dis- 

11  tribute  the  rents  among  the  co-tenants,  or  otherwise  hold  or  dispose  of 

12  the  same  in  such  manner  as  the  court  shall  determine  by  its  decree. 

1  Section  26.     If  a  party  named  in  the  petition  has  died  prior  to  the  Death  of  part 

2  filing  thereof,  or  dies  during  its  pendency,  and  such  fact  did  not  appear  nro'Jeeding"^ 

3  during  the  proceedings,  his  heir  or  devisee  shall  be  entitled  to  the  share  §;  |;  jgg;  |  ll[ 

4  of  land  set  off  to  him  or  his  share  of  the  proceeds  of  a  sale.    If  his  death  is  ^^g'ffg'  ^  ^' 

5  made  known  to  the  court  during  the  proceedings,  the  share  or  portion  IH-',''/; 

6  formerly  belonging  to  him  may  be  assigned  or  set  off  in  his  name  to  be  «28, 33.' 

7  held  and  disposed  of  as  if  the  partition  had  been  made  prior  to  his  decease,  iqit!  279! 

8  and  his  heir  or  devisee  may  recover  the  portion  assigned  to  him,  or  his      ^^'  *°' 

9  share  of  the  proceeds,  by  appropriate  action.    The  com-t  may,  however, 

10  in  any  case  arising  hereunder,  if  there  has  been  a  sale,  order  his  share  of 

11  the  proceeds  to  be  paid  to  his  personal  representatives  pending  settle- 

12  ment  of  his  estate,  or  deposited  under  section  thirty-four  to  await  their 

13  appointment. 

1  Section  27.     If  a  person  to  or  for  whom  a  part  of  the  land  has  been  set  R^g^io3'''s'^4i; 

2  off  is  evicted  by  one  who,  at  the  time  of  the  partition,  had  a  paramount  «■  |- 13«!  §  42. 

3  title  to  that  parcel,  but  not  to  the  whole  land,  the  person  so  evicted  may  R.  l.  184,  §  29. 

4  have  a  new  partition  of  the  remaining  land  not  subject  to  the  paramount  §§  29, 40.' 

5  title,  as  if  partition  had  not  been  made. 

1  Section  28.     A  person  having  a  mortgage,  attachment  or  other  lien  Mortgagee, 

2  on  the  share  of  a  co-tenant  shall  be  concluded  by  the  decree,  so  far  as  it  tenant/^" 

3  relates  to  the  partition  and  the  assignment  of  the  shares;   but  his  lien  aiiisnilts! 

4  shall  remain  in  full  force  upon  the  part  assigned  to  or  left  for  such  co-  r.l.\8^4'.V3o. 

5  tenant,  or,  in  the  event  of  a  sale,  upon  the  share  of  such  part  owner  in  the  II^^q^Jq' 

6  proceeds,  and  may  be  enforced  in  the  manner  provided  in  section  nineteen,  is*  Mass.  isi. 

198  Mass.  37. 

1  Section  29.     A  person  holding  land  under  a  partition  made  under  improvements 

2  this  chapter  shall,  in  case  of  an  eviction,  be  entitled  to  compensation  for  evicted. 

3  improvements  made  thereon,  as  provided  in  chapter  two  hundred  and  g.'  s!  ym,  §  73. 

4  thirty-seven.  p.  s.  i78,  5  73.  r.  l.  is4,  §  55.  1917, 279,  §§  31, 40. 

1  Section  30.     The  fact  that  a  co-tenant  is,  alone  or  jointly  with  others.  Trusteeship, 

2  as  trustee  or  in  any  other  representative  capacity,  the  holder  of  the  legal  vent  partition^ 

3  title  to  a  share  in  which  he  has  no  beneficial  interest  shall  not  prevent  a^|.' is'o,' |  cs. 

4  partition. 

p.  S.  178,  §  69.  R.  L.  184,  §  51.  1917,  279,  §§  32,  40.  9  Cush.  405. 

1  Section  31.     In  partition  proceedings  the  court  may  order  the  com-  Partition 

2  missioners  to  sell  and  convey  the  whole  or  any  part  of  the  land  which  i87o!257. 

3  cannot  be  divided  advantageously,  upon  such  terms  and  conditions  and  1I77;  i5s[  |  {'. 

4  with  such  securities  for  the  proceeds  of  the  sale  as  the  court  may  orfler,  fjls.'cc. 

5  and  to  distribute  the  proceeds  so  as  to  make  the  partition  just  and  ecjual.  j*^*'  j:°;J- .  ^^ 


2574 


PARTITION   OF    L.AND. 


[Chap.  241. 


1907,  361. 
1917,  279, 
§§  33,  40. 
140  Mass.  82. 
162  Mass.  385. 
180  Mass.  521. 
187  Mass.  279. 
218  Mass.  360. 


The  sale  shall  be  made  by  public  auction,  after  like  notice  as  is  required  6 

for  the  sale  of  land  by  an  administrator,  and  the  evidence  thereof  may  7 

be  perpetuated  in  like  manner  by  returns  filed  with  the  register  of  the  8 

court  in  which  the  proceedings  are  had;   or  the  sale  may  be  a  private  9 

sale,  upon  such  terms  as  the  court  orders,  if  it  finds  after  notice,  as  pro-  10 

vided  in  section  eight,  and  a  hearing,  or  after  receiving  the  written  assent  1 1 

of  all  parties  in  interest,  that  the  interests  of  all  parties  will  be  promoted  12 

thereby.    If  the  sale  is  by  auction,  section  nineteen  of  chapter  two  him-  13 

dred  and  four  shall  apply  thereto.  14 


Commissioners 
not  liable. 
1917,  279,  §  34. 


Section  32.     If  the  commissioners,  after  making  a  sale  in  accordance  1 

with  the  preceding  section,  distribute  the  proceeds  in  accordance  with  2 

the  order  or  decree  of  the  court  before  learning  of  any  conveyance,  3 

mortgage,  lien  or  other  encumbrance  of  or  upon  the  share  of  any  of  the  4 

joint  owners,  they  shall  not  be  liable  to  such  claimant.    If  they  are  in  5 

doubt  as  to  the  existence  or  the  validity  of  any  such  claim  against  the  6 

share  of  any  co-tenant  in  the  proceeds  they  may  ask  for  instructions  by  7 

the  court.  8 


Penalty  for 

not  disclosing 

attachment  or 

lien. 

1017,  279,  §  35. 


Section  33.    Whoever  receives  any  proceeds  of  a  sale  of  land  under  1 

this  chapter  after  having  sold  or  mortgaged  his  interest  therein,  or  with  2 

knowledge  that  it  has  been  attached  or  liened,  without  disclosing  such  3 

fact  to  the  commissioners  or  the  court,  shall  be  punished  by  a  fine  of  not  4 

more  than  one  thousand  dollars  or  by  imprisonment  for  not  more  than  5 

one  year.  6 


Disposal  of 
proceeds  un- 
claimed. 
1871,  111,  §2. 
P.  S.  178.  §  67. 
R.  L.  184,  §  48. 
1917.  279, 
§§  36,  40. 


Section  34.  If  the  proceeds  of  a  sale,  or  any  share  thereof,  cannot 
be  paid  to  the  persons  entitled  thereto,  the  commissioners  shall  deposit 
the  same  in  the  name  of  the  judge  of  probate  for  the  coimty  where  the 
proceedings  are  had,  in  such  savings  bank  or  other  like  institution  as  the 
court  orders,  to  accumulate  for  the  persons  entitled  thereto.  The  deposit 
shall  be  subject  to  sections  twenty-five  to  twenty-eight,  inclusive,  of  chap- 
ter two  hundred  and  six,  so  far  as  applicable. 


Appointment 
of  trustee. 
1887,  286. 
R.  L.  184,  §  49. 
1917,  279, 
§§  37,  40. 


Section  35.     If  in  any  share  there  are  estates  in  succession,  the  court  1 

making  partition  vaay,  upon  petition  of  any  party  interested,  appoint  a  2 

trustee  to  receive,  hold,  manage  and  invest  the  proceeds  of  the  sale  of  such  3 

share.    The  annual  income  of  such  share  shall  be  paid  to  the  owner  of  4 

each  successive  estate  for  years  or  for  life  until  it  terminates,  and  the  5 

principal,  after  termination  of  prior  estates,  shall  be  paid  to  the  parties  6 

entitled  to  the  fee.    The  trustee  shall,  before  entering  upon  the  duties  7 

of  his  trust,  give  to  the  judge  of  probate  and  his  successors  a  bond,  with  8 

sufficient  surety  and  in  such  penal  sum  as  the  court  orders,  conditioned  9 

for  the  faithful  performance  of  his  duties,  and,  upon  breach  of  the  con-  10 

dition,  an  action  may,  by  order  of  the  probate  court,  be  brought  for  the  11 

use  of  the  persons  interested  in  the  trust  property,  as  upon  a  bond  of  an  12 

administrator.  13 


Division  of 
water  rights 
and  other  in- 
corporeal 
hereditaments. 
1854.  74. 
G.  S.  136,  §  77. 
P.  S.  178.  §  76. 
R.  L.  184,  §  58. 


Section  36.  Joint  tenants  or  tenants  in  common  of  a  mill  privilege, 
water  right,  or  other  incorporeal  hereditament  may  be  compelled  to  di\-ide 
the  same  in  the  manner  hereinbefore  pro\'ided  for  the  division  of  land. 
The  commissioners  appointed  to  make  partition  shall  set  forth  in  their 
return  the  best  method  of  setting  off  to  the  several  parties  their  respective 


CiLip.  242.] 


WASTE   .-i^rD  TRESPASS. 


2575 


6  shares,  and  thereupon  the  court  may  make  such  orders  and  decrees  as  i9i7, 279, 

7  might  be  made  in  equity.    If  anj^  one  of  the  joint  owners  so  requests,  the  4  CraVl  4S6. 

8  court  shall  order  a  sale,  provided  that  a  sale  is  feasible. 


10  Gray,  14. 


1  Section  37.     Under  the  preceding  section,  partition  may  be  made  of  ^^[*^}'""°' 

2  the  water  of  a  natural  stream,  not  navigable,  the  banks  of  which  are  natural  stream, 

3  owned  by  different  riparian  proprietors.  iss-j,  12s. 

G.  S.  136,  §  -S.  P.  S.  178,  §  77.  R.  L,  184,  §  59.  1917,  279,  §  39. 


REFERENCES. 

Appeals  in  partition  proceedings,  Chap.  215,  §  9  ei  seg. 

Jury  issues,  Chap.  215,  §  16. 

Waste,  etc.,  committed  by  joint  tenant  or  tenant  in  common.  Chap.  242,  §  4. 

§  3.     See  also  Chap.  215,  §  7. 

§  9.     Guardian  ad  litem  and  next  friend  generally,  Chap.  201,  §§  34-36. 

§  25.     The  effect  of  an  appeal  in  equity.  Chap.  215,  §  23. 

§  30.     Authority  of  a  guardian  to  make  partition.  Chap.  201,  §  39. 


CHAPTER    242. 

WASTE   AND   TRESPASS. 


Sect. 

1.  Who  may   maintain   waste.     Trial    by 

jury. 

2.  Who  may  maintain  action   of  tort  in 

nature  of  waste. 

3.  When  action  maintainable  against  rep- 

resentative. 

4.  Liability  of  co-tenant  for  triple  damages 

for  waste. 


Sect. 

5.  Fonn  of  and  parties  to  action  for  triple 

damages. 

6.  Triple  damages  for  waste  during  pend- 

ency of  action. 

7.  LiabiUty  for  wilfully  cutting  trees,  etc. 
S.  Involuntary'  trespass  and  effect  of  tender. 
9.  Jurisdiction  to  stay  waste  during  pend- 
ency of  action. 


1  Section  1.     If  a  tenant  in  dower,  by  the  curtesy,  for  life  or  for  years  whomaymain- 

2  commits  or  suffers  waste  on  the  land  so  held,  the  person  having  the  next  Tr,"rbyfury. 

3  immediate  estate  of  inheritance  may  have  an  action  of  waste  against  nssyloff's^.  ^' 

4  such  tenant  to  recover  the  place  wasted  and  the  amount  of  the  damage,  JIJ'-,^'^;  K^^- 

5  and  such  action  shall  be  subject  to  the  provisions  of  law  relative  to  trial  g.  s.'qo.  §  14: 

6  by  jury.    An  heir  may  bring  such  action  for  waste  done  in  the  lifetime  of  p.  s.  124,  §'ig; 

7  his  ancestor.  -  -  ^-  « '  i79,§§i,2. 


R.  L.  185,  §  1. 


5  Pick.  192. 
7  Pick.  152. 


8  Pick.  309. 
138  Mass.  466. 


1.52  Mas.s.  561. 
205  Mass.  350. 


1  Section  2.     A  person  having  the  next  immediate  estate  of  inheritance,  whomaymaiii 

2  or  a  remainder  or  reversion  in  fee  simple  or  fee  tail  after  an  intervening  tSr?  fn  nature 

3  life  estate,  or  having  a  remainder  or  reversion  for  life  or  for  years,  may  r.sI'im, 

4  have  an  action  of  tort  in  the  nature  of  waste  to  recover  the  amoiuit  of  the  f^  !•  f,c- 

•  I  1*1  1*  *  loo, 

5  damage  agamst  the  tenants  named  in  the  preceding  section.  §§  *.  s. 

p.  S.  179,  §§  3,  4.  R.  L.  185,  §  2.  3  Pick.  203.  10  Allen,  460. 


1  Section  3.     If  such  action  in  tort  was  commenced  in  the  lifetime  of  ^ntamabi" 

2  the  tenant,  it  may  be  prosecuted  asrainst  his  executor  or  administrator  '^s^.i^st  repre- 

'  ^  ,  .  ,  ,      .     .  sentative. 

3  or  it  may  be  commenced  against  such  executor  or  administrator  for  waste  ^-  s- 105,  §  6. 

4  committed  or  suffered  in  the  tenant's  lifetime. 

G.  S.  138,  §  6.  P.  S.  179,  §  5.  R.  L.  185,  §  3. 


2576 


WASTE    ,\KD  TRESPASS. 


[CiLiP.    2-i2. 


Liability  of  co- 
tenant  for 
triple  damages 
for  waste. 
1727,  IS.  §  1. 
1737-S.  8,  §  2. 
1783,52.  §  1. 
1785,  62,  I  1. 
R.  S.  105,  §  7. 
G.  S.  138,  §  7. 
P.  S.  179,  §  6. 
R.  L.  1S5,  5  4. 
1  Met.  266. 
140  Mas.s.  31. 
145  Mass.  494. 
182  Mass.  415. 


Section  4.     A  joint  tenant  or  tenant  in  common  of  undivided  land  1 

wlio  cuts  down,  destroys  or  carries  away  trees,  timber,  wood  or  underwood  2 

standing  or  Ijang  on  such  land,  or  digs  up  or  carries  away  stone,  ore  or  3 

other  valuable  thing  found  there,  or  commits  any  other  waste,  \\-ithout  4 

first  giving  thirty  days'  notice  in  writing  under  his  hand  to  all  other  5 

persons  interested  therein  or  to  their  respective  agents  or  attorneys  of  6 

his  intention  to  enter  upon  and  improve  the  land,  or  who  does  any  of  7 

said  acts  during  the  pendency  of  a  petition  or  other  proceeding  for  the  8 

partition  of  the  land  shall  forfeit  three  times  the  amount  of  the  damages  9 

assessed  therefor.  10 


Fonn  of  and 
parties  to 
action  for 
triple  damages. 
1727,  IS,  §  1. 
1737-S,  8,  §  2. 
1783,52.  §  ]. 
17S5,  62.  §  1. 
R.  S.  105.  §  8. 
G.  S.  138.  §  8. 
P.  S.  179.  §  7. 
R.  L.  185.  5  5. 
22  Pick.  495. 


Section  5.  Such  damages  may  be  recovered  in  tort  by  one  or  more 
of  the  other  co-tenants,  wathout  naming  any  one  except  the  plaintiff,  one 
half  to  the  use  of  the  co-tenants  who  associate  themselves  M'ith  the 
plaintiff  in  bringing  the  action,  and  the  other  half  to  their  use  and  that 
of  all  the  other  co-tenants  except  the  defendant,  to  be  divided  among 
them  in  each  class  in  proportion  to  the  value  of  their  respecti^'e  interests 

in    the   land.  6  Ora.v,  Sas.  1S2  Mass.  415. 


Triple  damages 
for  waste 
during  pend- 
ency of  .action. 
1727,  18,  §  2. 
1795,  75,  I  3. 
R.  S.  105,  §  9. 


Section  6.  If,  during  the  pendency  of  an  action  for  the  recovery 
of  land,  the  tenant  or  person  in  possession,  with  knowledge  thereof, 
commits  waste,  the  demandant,  if  he  recovers  judgment,  may  afterward 
recover  in  tort  three  times  the  amount  of  the  damages  assessed  therefor. 


G.  S.  138,  §  9. 
P.  S.  179,  §  8. 


R.  L.  185.  §  6. 
8  Pick.  514. 


2  Gush.  400. 


1 

2 
3 
4 


Liability  for 
wilfully  cutting 
trees,  etc. 
1698,  7,  §  2. 
1723^,  10,  §  1. 
1726-7.  3,  §  1. 
1727,  8,  I  1. 
1S17.  173. 
R.  S.  105, 
§§  10,  11. 
G.  S.  138,  §  10. 
P.  S.  179.  §  9. 
R.  L.  185,  §  7. 


Section  7.  A  person  who  without  license  wilfully  cuts  down,  carries 
away,  girdles  or  otherwise  destroys  trees,  timber,  wood  or  underwood 
on  the  land  of  another  shall  be  liable  to  the  owner  in  tort  for  three  times 
the  amount  of  the  damages  assessed  therefor;  but  if  it  is  found  that  the 
defendant  had  good  reason  to  believe  that  the  land  on  which  the  trespass 
was  committed  was  his  own  or  that  he  was  otherwise  lawfully  authorized 
to  do  the  acts  complained  of,  he  shall  be  liable  for  single  damages  only. 

no  Mass.  280.  114  Mass.  443.  211  Mass.  556. 


Involuntary 
trespass  and 
effect  of  tender. 
1786,  52.  §  2. 
R.  S.  105, 
§§  12,  13. 
G.  S.  138, 
§§  11,  12. 
P.  S.  179, 
§§  10,11. 
R.  L.  185,  §  8. 
6  Met.  261. 
16  Gray,  2S5. 
192  Mass.  600. 


Section  8.     A  trespasser,  if  the  trespass  was  casual  and  involimtary,  1 

may,  before  an  action  is  commenced,  tender  the  damages  and,  upon  2 

action  brought,  disclaim  title  and  allege  the  tender  and  that  the  trespass  3 

was  casual  and  involuntary;   and  if  it  is  found  that  the  allegations  are  4 

true  and  if  he  has  deposited  with  the  court  the  amount  of  his  tender  at  5 

the  time  of  filing  his  answer  and  the  damages  assessed  are  not  more  6 

than  the  amount  tendered,  he  shall  recover  costs.     Such  tender  may,  7 

subject  to  the  same  provisions,  be  made  after  the  action  has  been  com-  8 

menced  with  like  effect,  if  it  covers  the  costs  to  the  time  of  tender.  9 


Jtlrisdiction  to 
stay  waste 
during  pend- 
ency of  action. 
1740-1,14. 
1829,  121. 
R.  S.  105, 
§§  17,  18. 
1851,233,  5  71. 
1852,  312,  §  54. 
1856,  278. 
G.  S.  138, 
§§  15-17. 


Section  9.     If  a  person  whose  land  is  attached  commits  waste  thereon  1 

or  threatens  or  prepares  so  to  do  or  if  a  real  action  is  brought  to  fore-  2 

close  a  mortgage  or  for  possession  thereunder  or  for  the  recovery  of  3 

land  and  any  waste,  or  act  in  the  natm-e  of  waste,  on  the  land  has  been  4 

committed  or  threatened  by  the  tenant  or  any  one  who  claims  under  5 

him  or  acts  by  his  permission,  the  court  in  which  the  action  is  pending  6 

shall,  upon  motion  of  the  plaintiff  or  demandant,  have  jurisdiction  in  7 


ClL\P.   243.]  ACTIONS   FOR   PRI\'ATE   NUISANCES.  2577 

8  equity  to  enjoin  such  waste  or  act.    In  such  case  the  court  may  require  p.  s.  1-9, 

9  the  plaintiff  or  demandant  to  give  bond  in  such  sum  as  it  orders  to  the  r.  It  im.  §  9. 

10  adverse  party,  witli  sufficient  sureties,  conditioned,  if  the  injunction  is 

1 1  dissolved,  to  pay  all  damages  arising  from  the  issuing  thereof. 


CHAPTER    243. 

ACTIONS  FOR  PRIVATE  NUISANCES. 


Sect. 

1.  Judgment  for  abatement  of  nuisance. 

2.  Stay  of  warrant. 

3.  Judgment    for    abatement    in    second 

action. 


Sect. 

4.  Manner      of      collecting     expense     of 

abatement. 

5.  Injunction  to  restrain  nuisance. 


1  Section  1.     If  tlie  plaintiff  prevails  in  tort  for  a  nuisance,  the  court  Judgment  for 

2  may,  in  addition  to  the  judgment  for  damages  and  costs,  enter  judg-  nuisance^ 

3  ment  that  the  nuisance  be  abated  and  removed  and  may  issue  execution  r.'s.'  loe',' 

4  for  the  damages  and  costs  and  a  separate  warrant  to  the  proper  officer,  g.  s.  I39,  §  1. 

5  requiring  him  to  abate  and  remove  the  nuisance  at  the  expense  of  the  r.l.'iIg.Vi. 

6  defendant  as  public  and  common  nuisances  are  abated  and  removed.         7  AUen'43i' 

150  Mass.  482. 

1  Section  2.     The  court  may,  upon  motion  of  the  defendant,  order  a  stay  of 

2  stay  of  such  warrant  for  not  more  than  six  months,  to  give  him  op-  R^s.^Tor,,  §  3. 

3  portunity  to  remove  the  nuisance,  upon  his  undertaking  so  to  do  within  p;  |;  ifo,'  1 2. 

4  the  time  ordered.  R.  l.  ise,  §  2. 

1  Section  3.     If  the  plaintiff  recovers  judgment  in  a  second  action  Judgment  for 

2  for  the  continuance  or  repetition  of  the  same  nuisance,  he  shall  be  en-  terandaction. 

3  titled  as  of  right  to  a  judgment  for  abatement  and  remo\al  and  to  a  q; |; ^39; 1 1; 

4  warrant  as  provided  in  section  one,  if  judgment  in  the  former  action  p- 1;  '^^^^  I  3- 

5  ^^•as  in  his  favor  and  whether  it  included  an  order  for  abatement  or  203  Mass!  448. 

6  removal  or  not. 

1  Section  4.     The  expense  of  abatement  and  removal  shall  be  col-  M.inner  of  coi- 

0  1  J  1  1  /r-  1  .  lectmg  expense 

2  lected  by  the  oincer  as  damages  and  costs  are  collected  upon  execiltion,  ?70fi^o^'"|"r'' 

3  except  that  the  materials  of  buildings,  fences  or  other  things  so  removed  R-  s.'  loe,  §  5. 

4  may  be  sold  by  the  officer  as  goods  are  sold  on  execution  for  the  pay-  p.s.'iso.'5  4." 

5  ment  of  debts.    The  officer  shall  apply  the  proceeds  to  the  expense  of  ^'  ^'  ^*'^'  ^  ■*" 

6  the  removal  and  shall  upon  demand  pay  over  the  remainder  to  the 

7  defendant.     If  the  proceeds  are  insufficient  to  defray  the  expenses,  the 

8  officer  shall  collect  the  deficit  from  the  defendant. 

1  Section  5.     The  superior  court  may  in  an  action  of  tort  pending  injunction 

2  therein  for  a  nuisance  enjoin  such  nuisance  as  in  equity.  nubanee'." 

R.  S.  :06,  5  C.  G.  S.  139,  §  6.  P.  S.  180,  §  6.  R.  L.  18G,  §  5. 

REFERENCE. 

Fence  more  than  G  feet  high  as  nuisance.  Chap.  49,  §  21. 


2578 


FORECLOSUKE   AND   REDEMPTION   OF  MORTGAGES.         [Ch.\P.   244. 


CHAPTER    244 


FORECLOSURE  AND  REDEMPTION  OF  MORTGAGES. 


Sect. 

foreclosure  by  entrt  or  action. 

1.  Foreclosure  by  entry  or  action. 

2.  Certificate  of  entry  to  be  recorded. 

3.  Form  of  declaration. 

4.  Procedure. 

5.  Form  of  conditional  judgment  generally. 

6.  Form  in  special  cases. 

7.  Discharge  or  release  on  satisfaction  of 

execution. 

8.  Form  of  action.     Parties. 

9.  Right  to  enter  before  breach. 

10.  Foreclosure  and  redemption  where  en- 
try is  made  before  breach. 

FORECLOSURE    BY    S.\LE. 

IX.  Order  of  court  for  sale  under  power. 

12.  Procedure  after  sale. 

13.  Necessary  parties. 

14.  Procedure  in  foreclosure  under  power 

of   sale.     Form    and   publication    of 
notice. 

15.  Record  of  aiEda\-it  of  sale  as  e\-idence. 

16.  When   dower   and   curtesy   barred   by 

sale. 

17.  Effect  of  conveyance  by  mortgagor. 

REDEMPTION. 

18.  Who  may  redeem. 

19.  Tender  of  payment  or  performance. 

20.  Accounting. 


Sect. 

21.  Time  of  making  tender  and  necessity 

of  suit  for  redemption. 

22.  Suit  without  previous  tender. 

23.  Order  for  payment  of  amount  not  in 

dispute. 

24.  Costs. 

25.  Suit  not  barred  by  defective  tender. 

26.  Venue  and  practice. 

27.  Decree  for  possession. 

28.  Interest. 

29.  Execution  for  possession. 

30.  Judgment  and  execution  for  balance. 

31.  Distribution   of   money   tendered   and 

paid  into  court. 

32.  New  parties.     Process. 

33.  Survival  of  right  to  redeem. 

34.  Tender  to  guardian  or  conseri'ator. 

GENERAL    PROVISIONS. 

35.  Right    to    redeem    where    foreclosure 

opened. 

36.  Action   for   excess   received    by   mort- 

gagee. 


MORTGAGES   TO    THE    COMMONVVE.^LTH. 

Discharge  of  mortgage  held   by  com- 
monwealth. 

38.  Foreclosure. 

39.  Redemption  generally. 

40.  Suit  for  redemption. 


37 


Foreclosure 
by  entry  or 
action. 
17S5,  22,  §  2. 
R.  S.  107,  §  1. 
G.  S.  140,  §  1. 
P.  S.  181.  §  1. 
R.  L.  1S7,  §  1. 
13  Mass.  429. 
.5  Pick.  418. 
11  Met.  467. 


Certificate  of 
entry  to  be 
recorded. 
R.  S.  107,  I  2. 
G.  S.  140,  I  2. 
P.  S.  181,  §  2. 
R.  L.  187,  §  2. 
10  Met.  344. 

4  Gush.  172. 
10  Gush.  163. 
3  Grav,  517. 

5  Gray,  318. 
7  Gray,  202. 


FORECLOStTRE   BY   ENTRY   OR   ACTION. 

Section  1.  A  mortgagee  may,  after  breach  of  condition  of  a  mortgage 
of  land,  recover  possession  of  the  land  mortgaged  by  an  open  and  peace- 
able entry  thereon,  if  not  opposed  by  the  mortgagor  or  other  person 
claiming  it,  or  by  action  under  this  chapter;  and  possession  so  obtained, 
if  continued  peaceably  for  three  years,  shall  forever  foreclose  the  right  of 
redemption. 


6  Gush.  91. 

7  Gush.  605. 

8  Gush.  3.57. 

10  Gush.  99,  163. 

4  Gray.  299. 

5  Gray,  318,  545. 

6  Gray,  126,  12S,  439. 

9  Grav,  63.  98. 
16  Gray,  149. 
3  Allen,  324. 


8  Allen,  161,  466. 
99  Mass.  4. 

102  Mass.  298. 

103  Mass.  475. 
110  Mass.  311. 
113  Mass.  36. 
118  Mass.  163. 

117  Mass.  365,439. 

121  Mass.  139. 

122  Mass.  129. 


131  Mass.  464. 

132  Mass.  502. 
134  Mass.  364. 
139  Mass.  506. 
157  Mass.  272. 
165  Mass.  123. 
170  Mass.  120. 
185  Mass.  398. 
234  Mass.  559. 
236  Mass.  332. 


Section  2.  If  an  entry  for  breach  of  condition  is  made  without  a 
judgment,  a  memorandum  of  the  entry  shall  be  made  on  the  mortgage 
deed  and  signed  by  the  mortgagor  or  person  claiming  under  him,  or  a 
certificate,  under  oath,  of  two  competent  witnesses  to  prove  the  entry 
shall  be  made.  Such  memorandum  or  certificate  shall  within  thirty  days 
after  the  entry,  except  as  provided  in  section  seventy  of  chapter  one 
hundred  and  eighty-five,  be  recorded  in  the  registry  of  deeds  for  the 


Chap.  244.]        foreclositre  and  redemption  of  mortgages.  2579 

8  county  or  district  where  the  land  lies,  with  a  note  of  reference,  if  the  8  Gray,  452. 

9  mortgage  is  recorded  in  the  same  registry,  from  each  record  to  the  other.  ii*Gr.ayf478, 

10  Unless  such  record  is  made,  the  entry  shall  not  be  effectual  for  the  pm--  lecray, 5gi. 

11  poses  mentioned  in  the  preceding  section. 

S  Allen,  161.  101  Mass.  184.  145  Mass.  224.  ' 

0  Allen.  530.  109  Mass.  230.  lf>5  Mass.  359. 

100  Mass.  lOS,  131  Mass.  345.  23lj  Mass.  332. 

1  Section  3.     The  mortgagee  in  an  action  for  possession  may  declare  Form  of 

2  onhisownseisin,  stating  that  it  is  in  mortgage;  and  if  the  coiu-t  finds  upon  Hm'SlTi. 

3  verdict  or  otherwise  that  the  plaintiff  is  entitled  to  possession  of  the  land  ^^g  io7,V3. 

4  for  breach  of  condition,  it  shall  upon  motion  of  either  party,  except  as  JPio^^^'^^' 

5  provided  in  the  following  section,  award  a  conditional  judgment.  g-  s-  140,  §  3. 

p.  S.  181.  §  3.  10  Met.  172.  8  Gray,  1.54,  447. 

R.  L.  187,  §  3.  12  Met.  154.  11  Allen,  39. 

7  Mass.  355.  2  Cush.  374.  122  Mass.  135. 

7  Pick.  31.  3  Gray,  517.  131  Mass.  179,  464. 

22  Pick.  556.  6  Gray,  428. 

1  Section  4.     Unless  the  defendant  is  the  mortgagor  or  his  assignee,  or  Procedure. 

2  entitled  to  hold  or  claim  the  land  under  the  mortgagor  or  his  assignee,  cl  si  i?o',  §  t'. 

3  he  shall  not  redeem  the  land  nor  have  a  conditional  judgment,  except  r.  l. \s7', \  4. 

4  with  the  consent  of  the  plaintiff,  but  the  action  shall  be  conducted  like 

5  a  writ  of  entry,  and  in  all  cases  the  judgment  for  the  plaintiff  may  be 

6  entered  for  possession  as  at  common  law,  unless  one  or  the  other  of  the 


parties  moves  for  the  conditional  judgment. 


1  Section  5.     If  the  conditional  judgment  is  to  be  entered,  the  court  ^'orm  of 

r»      I      11      1  "1  1  1  1     •       -fi*  1  1    ^^oriditional 

2  shall  determine  the  amount  due  to  the  plaintiit  on  the  mortgage,  and  judgment 

3  shall  enter  judgment  that  if  the  defendant  within  two  months  after  the  leg.s,  22,§i. 

4  judgment  pays  to  the  plaintiff  such  amount  with  interest  and  the  costs,  r.  s.'  loi,  §  5. 

5  the  mortgage  shall  be  void,  and  the  defendant  shall  hold  the  land  dis-  p.' |;  il?,' 1 1.' 

6  charged  thereof;  otherwise,  that  the  plaintiff  shall  have  execution  for  pos-  fgpick^ssl^" 

7  session  and  for  costs.  24  pick.  141.  7  Met.  576. 

11  Met.  384.  1  Allen.  145.  112  Mass.  271. 

5  Gray,  423.  4  Allen,  440.  114  Mass.  360. 

7  Gray,  202.  8  Allen,  78.  118  Mass.  497. 

11  Gray,  271.  9  Allen,  69.  123  Mass.  100,  441. 

12  Gray,  60.  10  Allen,  76.  140  Mivss.  49. 
14  Gray,  522.  102  Mass.  475.  142  Mass.  433. 

1  Section  6.     If  the  condition  of  the  mortgage  is  not  for  the  payment  of  f°e™i"ases 

2  money,  or  if  a  part  only  of  the  money,  the  payment  of  which  is  secured  g  |-  jo^- 1 1 

3  by  the  mortgage,  is  due,  the  court  shall  vary  the  terms  of  the  judgment  p.  s.'isi.'jo.' 

4  as  the  case  may  require,  but  shall  award  execution  as  before  provided  iiMet.  ssi. ' 

5  unless  the  defendant  within  two  months  after  the  judgment  performs  the        ^'^'     ' 

6  conditions  thereof. 

1  Section  7.     If,  after  an  execution  on  a  judgment  for  possession  has  Discharge  or 

2  been  levied,  the  amount  due  on  the  mortgage  and  costs  are  paid  in  full,  satisfaction  of 

3  the  mortgagee,  his  executor,  administrator  or  assigns  shall,  at  the  ex-  isls?  m'  §  2. 

4  pense  of  the  mortgagor,  enter  on  the  margin  of  the  record  of  the  execution  p- 1-  J^f'  |  ^^■ 

5  an  acknowledgment  of  satisfaction  or  make  to  the  mortgagor  a  deed  of  k.  l.  187,  §  7. 

6  release,  which  shall  be  recorded  with  notes  of  reference  to  the  execution 

7  discharged  thereby. 

1  Section  8.     The  entry  may  be  made  or  the  action  brought  by  an  Form  of  action. 

2  assignee  of  the  mortgagee.     The  action  for  possession  may  be  brought  ifss'.'si.  §  1. 

3  like  a  writ  of  entry  against  the  tenant  of  the  freehold,  and  shall  be  con-  fsf.'s"^' 


2580 


FORECLOSURE    AXD    REDEMPTION    OF   MORTGAGES.         [ChaP.    2-14. 


G.  9.  140, 
55  7.  8. 
P.  S.  181, 
l§  8.  9. 

R.  L.  187,  §  8. 
11  Mass.  210. 
17  Pick.  lis. 


ducted  as  if  brought  by  the  original  mortgagee.    The  mortgagor  may  be  4 

joined  therein  as  a  defendant  h-respective  of  his  estate  in  the  land;  but  5 

if  he  has  no  estate  in  the  land  and  makes  no  defence  to  the  action,  he  shall  6 

not  be  liable  for  costs.                                    12  Met.  154.  7 


7  Grav,  202. 

13  Gray,  198,  506. 


15  Grav,  461. 

16  Gray,  485 


131  Mas.'i.  464. 
140  Mass.  49. 


befOTeteeac"  SECTION  9.     This  chapter  shall  not  prevent  a  mortgagee  or  person 

G  i'  i4o!  1 9'  claiming  under  him  from  entering  on  the  land  or  from  recovering  pos- 

P- ^- ij|i,'|io-  session  thereof  before  breach  of  condition  of  the  mortgage,  if  there  is 

3  Aiass.  138.  no  agreement  to  the  contrary;    but  if  the  debt  is  afterward  paid  or  the 

11  Met.  458.  mortgage  redeemed,  the  amount  of  the  clear  rents  and  profits  from  the 

"^"      ■  time  of  the  entry  shall  be  accounted  for  and  deducted  from  the  amount 


due  on  the  mortgage. 


Foreclosure  and 
redemption 
where  entry  is 
made  before 
breach. 
R.  S.  107, 
|§  10-12. 
G.  .S.  140. 
I§  10-12. 
P.  S.  181, 
§§  11-13. 
R.  L.  187.  §  10. 
13  Mass.  309. 
6  Gush.  91. 


Section  10.     A  mortgagee,  or  a  person  claiming  under  him  in  posses-  1 

sion  under  the  preceding  section,  may,  after  breach  of  condition,  make  2 

a  new  formal  entry  for  breach  of  condition,  or  bring  an  action,  under  3 

section  one,  with  the  same  effect  as  if  he  were  not  in  possession;   or  he  4 

may  foreclose  the  right  of  redemption  by  giving'  after  breach  of  condition,  5 

to  the  mortgagor,  or  person  claiming  under  him,  a  written  notice  that  6 

he  will  thenceforward  hold  the  land  for  the  purpose  of  foreclosure  and  7 

causing  a  certificate  in  proof  thereof  to  be  recorded  within  thirty  days  8 

after  such  notice  as  in  case  of  an  original  entry.    If  such  notice  is  given  9 

and  recorded,  the  three  years  limited  for  redemption  shall  run  from  the  10 

date  of  giving  the  notice.  11 


FORECLOSURE   BY   SALE. 


Order  of  court 
for  sale  under 
power. 

1854,  377,  §  1. 
G.  S.  140,  §  38. 
P.  S.  181.  §  14, 


Section  11.     If  a  conditional  judgment  has  been  entered  upon  a 
mortgage  containing  a  power  of  sale,  the  court  shall,  instead  of  issuing 
a  writ  of  possession,  at  the  request  of  the  plaintiff  order  the  property 
R.L.'i87.''§"i.  to  be  sold  pursuant  to  such  power.    The  plaintiff  shall  thereupon  exe- 
cute the  power  and  do  all  tilings  required  by  it  or  by  the  court. 


Procedure 
after  s.tle. 
1854.  377,  §  2. 
G.  S.  140,  I  40. 
P.  S.  181,  I  13. 
R.  L.  187,  §  12. 


Necessary 
parties. 
1854,  377,  I  3. 
G.  S.  140,  §  41. 
P.  S.  181.  §  16. 
R.  L.  187,  §  13. 


Section  12.  The  person  selling  shall,  within  ten  days  after  the  sale, 
file  in  the  clerk's  office  a  report  on  oath  of  the  sale  and  of  his  doings, 
and  the  court  may  confirm  the  sale  or  set  it  aside  and  order  a  re-sale. 
Any  person  interested  may  appear  or  be  summoned,  and  the  order  of  the 
court  confirming  the  sale  shall  be  conclusive  e\ndence  against  all  persons 
that  the  power  of  sale  was  duly  executed. 

Section  13.  Unless  the  defendant  is  seized  in  fee  simple  in  pos- 
session of  the  whole  equity  of  redemption  of  the  land  demanded,  an 
order  for  ,a  sale  shall  not  be  made  until  all  parties  interested  in  the 
equity  of  redemption  and  whose  estate  or  interest  therein  would  be 
affected  by  such  sale,  including  a  person  having  a  right  or  possibility 
of  curtesy  or  dower,  have  been  summoned  to  appear. 


Procedure  in 
foreclosure 
under  power 
of  sale.     Form 
and  publication 
of  notice. 
1857,  229,  §  1. 
G.  S.  140,  §  42. 
1877,  215. 
P.  S.  181,  I  17. 
1882,  75. 


Section  14.  The  mortgagee  or  person  having  his  estate  in  the  land 
mortgaged,  or  a  person  authorized  by  the  power  of  sale,  or  the  attorney 
duly  authorized  by  a  WTiting  under  seal,  or  the  legal  guardian  or  con- 
ser\"ator  of  such  mortgagee  or  person  acting  in  the  name  of  such  mort- 
gagee or  person,  may,  upon  breach  of  condition  and  without  action,  do 
all  the  acts  authorized  or  required  by  the  power;    but  no  sale  under 


Chap.  244.]        foreclosure  and  redemption  of  mortgages.  2581 

7  such  power  shall  be  effectual  to  foreclose  a  mortgage,  unless,  previous  R.  l.  isz,  §  14. 

8  to  such  sale,  notice  thereof  has  been  published  once  in  each  of  three  i9i2,'36o.'|i; 

9  successive  weeks,  the  first  publication  to  be  not  less  than  twenty-one  1^439.^^^' 

10  days  before  the  day  of  sale,  in  a  newspaper,  if  any,  published  in  the  j92o'2' 

1 1  town  where  the  land  lies.    If  no  newspaper  is  published  in  such  town,  }f  J  ^^33.  291. 

,  _  11*11*  »1*      1  1*1  1  loo  AlBSS.    i>/0. 

12  notice  may  be  published  in  a  newspaper  published  in  the  county  where  i^i  Masa.  195. 

13  the  land  lies,  and  this  provision  shall  be  implied  in  every  power  of  sale  228  Mass!  417. 

14  mortgage  in  which  it  is  not  expressly  set  forth.    A  newspaper  which  by  "  *  i^ss.  5o9. 

15  its  title  page  purports  to  be  printed  or  published  in  such  town,  city  or 

16  county,  and  having  a  circulation  therein,  shall  be  sufficient  for  the  purpose. 

17  The  following  form  of  foreclosure  notice  may  be  used  and  may  be 

18  altered  as  circumstances  require;   but  nothing  herein  shall  be  construed 

19  to  prevent  the  use  of  other  forms. 

(Form.) 

Mortgagee's  Sale  of  Real  Estate. 

By  virtue  and  in  execution  of  the  Power  of  Sale  contained  in  a  certain  mortgage 

given  by to 

dated and  recorded  with 

Deeds,  Book ,  page ,  of  which  mortgage  the 

undersigned  is  the  present  holder, 

(If  by  assignment,  or  in  any  fiduciary  capacity,  give  reference.) 

for  breach  of  the  conditions  of  said  mortgage  and  for  the  purpose  of  foreclosing 

the  same  will  be  sold  at  Public  Auction  at o'clock, M . 

on  the day 

of A.  D.  19      ,. ; . . 

(place) all  and  singular  the  premises  described  in  said 

mortgage, 

(In  case  of  partial  releases,  state  exceptions.) 

To  wit:  ■•  (Description  exactly  as  in  the  mortgage,  including  all  references  to 
title,  restrictions,  encumbrances,  etc.,  as  made  in  the  mortgage.)  " 

Terms  of  sale:  (State  here  the  amount,  if  any,  to  be  paid  in  cash  by  the  pur- 
chaser at  the  time  and  place  of  the  sale,  and  the  time  or  times  for  payment  of  the 
balance  or  the  whole  as  the  case  may  be.) 

Other  terms  to  be  announced  at  the  sale. 


(Signed). 


Present  holder  of  said  mortgage. 
..19 


20  A  notice  of  sale  in  the  above  form,  published  in  accordance  with  the 

21  power  in  the  mortgage  and  with  this  chapter,  together  with  such  other 

22  or  further  notice,  if  any,  as  is  required  by  the  mortgage,  shall  be  a  suffi- 

23  cient  notice  of  the  sale;   and  the  premises  shall  be  deemed  to  have 

24  been  sold,  and  the  deed  thereunder  shall  convey  the  premises,  subject  to 
2.5  and  with  the  benefit  of  all  restrictions,  easements,  improvements,  out- 

26  standing  tax  titles,  municipal  or  other  public  taxes,  assessments,  liens 

27  or  claims  in  the  nature  of  liens,  and  existing  encumbrances  of  record 

28  created  prior  to  the  mortgage,  whether  or  not  reference  to  such  restric- 

29  tions,  easements,  improvements,  liens  or  encumbrances  is  made  in  the 

30  deed;   but  no  purchaser  at  the  sale  shall  be  bound  to  complete  the  pur- 

31  chase  if  there  are  encumbrances,  other  than  those  named  in  the  mort- 

32  gage  and  included  in  the  notice  of  sale,  which  are  not  stated  at  the  sale 

33  and  included  in  the  auctioneer's  contract  with  the  purchaser. 


2582 


FORECLOSURE   .\ND   REDEMPTION   OF  MORTGAGES.         [ChAP.   244. 


Record  of 
affidavit  of  sale 
as  evidence. 
1S57,  229,  §  1. 
G.  S.  140, 
5§  42,  43. 
P.  S.  181,  §18. 
R.  L.  187,  §  15. 
190R,  219,  §  2. 
1915,  23. 
5  Allen,  319. 
106  Mass.  310. 
115  Mass.  89. 
117  Mass.  365. 
195  Mass.  124. 
201  Mass.  236. 
20.S  Mass.  3f;s. 
236  Mass.  332. 


Section  15.     The  person  selling,  or  the  attorney  duly  authorized  by  1 

a  writing  under  seal,  or  the  legal  guardian  or  conservator  of  such  person,  2 

shall,  within  thirty  days  after  the  sale,  cause  a  copy  of  the  notice  and  3 

his  affidavit,  fully  and  particularly  stating  his  acts,  or  the  acts  of  his  4 

principal  or  ward,  to  be  recorded  in  the  registry  of  deeds  for  the  county  5 

or  district  where  the  land  lies,  with  a  note  of  reference  thereto  on  the  6 

margin  of  the  record  of  the  mortgage  deed,  if  it  is  recorded  in  the  same  7 

registry.     If  the  affida\'it  shows  that  the  requirements  of  the  power  of  8 

sale  and  of  the  statute  have  in  all  respects  been  complied  with,  the  affi-  9 

da\-it  or  a  certified  copy  of  the  record  thereof,  shall  be  admitted  as  10 

evidence  that  the  power  of  sale  was  duly  executed.  11 


When  dower 

and  curtesy 
barred  by  sale. 
1854,  377,  §  1. 
1S57,  229,  §  2. 
G.  S.  140,  I  44. 
P.  S.  181,  §  19. 
R.  L.  187,  §  16. 


Section  16.     If  the  mortgagor  had  at  the  time  of  the  execution  of  1 

the  mortgage  no  husband  or  wife  or  if,  being  married,  the  husband  or  2 

wife  joined  in  the  deed  in  token  of  his  or  her  release  of  curtesy  or  dower,  3 

the  sale  in  either  of  the  modes  aforesaid  shall  bar  all  right  and  possibility  4 

of  curtesy  or  dower  in  the  land.  5 


vey"nceby°  SECTION  17.     A  salc  Or  transfer  by  the  mortgagor  shall  not  impair  OF     1 

G.°s*f40,'^§  39.  annul  any  right  or  power  of  attorney  given  in  the  mortgage  to  the  mort-    2 
R.L.\87,|  n.  gagee  to  sell  or  transfer  the  land  as  attorney  or  agent  of  the  mortgagor.        3 


Who  may 
redeem. 
1B98,  22, 
§§  4,  5. 
1712-13,8, 
1785,  22,  § 
1798,  77,  § 
R.  S.  107,  I 
G.  S.  140,  { 
P.  S.  ISl,  S 
R.  L.  187.  • 


2. 

1. 

jl3. 
il3. 

21. 
S  18. 


REDEMPTION. 

Section  18.     The  mortgagor  or  person  claiming  or  holding  under  him  1 

may,  after  breach  of  condition,  redeem  the  land  mortgaged,  unless  the  2 

mortgagee,  or  person  claiming  or  holding  under  him,  has  obtained  pos-  3 

session  of  the  land  for  breach  of  condition  and  has  continued  that  posses-  4 

sion  for  three  years,  or  unless  the  land  has  been  sold  pursuant  to  a  power  5 

of  sale  contained  in  the  mortgage  deed.         22  Pick.  401.         e  Gray,  128.  6 


7  Gray,  278. 
13  Allen,  60. 
105  Mass.  564. 


112  Ma.ss.  352. 
137  Mass.  397. 
143  Mass.  49. 


148  Mass.  540. 
159  Mass.  356. 
171  Mass.  195. 


Tender  of  pay- 
ment or  per- 
formance. 
1C98,  22,  §  4. 
17S5,  22.  §  2. 
1798,  77.  §  1. 
R.  S.  107,  §  14. 
G.  S.  140,  §  14. 
P.  S.  181,  §  22. 
R.  L.  187,  §  19. 
5  Pick.  259. 


Section  19.  The  person  entitled  to  redeem  shall  pay  or  tender  to 
the  mortgagee,  or  person  claiming  or  holding  under  him,  the  whole 
amount  then  due  and  payable  on  the  mortgage,  and  shall  perform  or 
tender  performance  of  every  other  condition  contained  therein;  and  if 
there  has  been  an  action  to  recover  the  land  he  sliall  pay  or  tender  the 
costs  of  such  action  if  unpaid. 

5  Met.  95.  7  Gush.  220.  7  Gray,  148.  139  Mass.  407. 


Accounting. 
1698,  22.  §  4. 
1785,  22,  §  2. 
1798,77.  I  1. 
R.  S.  107,  §  15. 
G.  S.  140,  S  15. 
P.  S.  181,  §  23. 
R.  L.  187,  §  20. 
5Pick.  146,259. 
10  Pick.  398. 
16  Pick.  46. 
4  Met.  246,  49S. 
7  Met.  157. 
2  Gush.  400. 
7  Gush.  220. 


Section  20.     If  the  mortgagee  or  person  claiming  or  holding  under  1 

him  has  had  possession  of  the  land,  he  shall  account  for  rents  and  profits,  2 

and  be  allowed  for  all  amounts  expended  in  reasonable  repairs  and  iin-  3 

provements,  for  all  lawful  taxes  and  assessments  paid  and  for  all  other  4 

necessary  expenses  in  the  care  and  management  of  the  land.    A  balance  5 

of  such  account,  if  due  from  him,  shall  be  deducted  from  the  debt  due  on  6 

the  mortgage;  if  due  to  him,  shall  be  added  to  the  debt,  and  paid  or  ten-  7 

dered  as  such.  5  Gray,  423.  6  Gray,  556.  7  Gray,  148.  8 


14  Gray,  132. 

4  Allen,  538. 

5  AUen,  78. 


12  Allen.  120. 
100  Mass.  270. 
104  Mass.  400. 


114  Mass.  497. 
124  Mass.  242. 
126  Mass.  146. 


139  Mass.  77,  407. 
148  Mass.  300. 
199  Mass.  164. 


Time  of  making 
tender  and 
necessity  of 
suit  for  re- 
demption. 


Section  21.  The  tender  may  be  made  before  the  expiration  of  the  1 
three  years  limited  for  redemption,  and  before  or  after  entry  for  breach  2 
of  condition,  and  before  a  sale  piu-suant  to  a  power  contained  in  the    3 


Chap.  244.]        foreclosure  and  redemption  of  mortgages.  2583 

4  mortgage ;  but  if  the  mortgagee  or  person  claiming  or  holding  under  him  i698. 22.  §  4. 

5  does  not  accept  the  tender  and  discharge  the  mortgage,  the  tender  shall  1321;  80!  §  1! 

6  not  prevent  the  foreclosure  unless,  within  one  year  after  the  tender,  the  §j  fo.^iy! 

7  mortgagor  or  person  claiming  or  holding  under  him  commences  suit  for  ^^^y,  ^los,  §  2. 

8  redemption  and  when  he  commences  suit  pays  to  the  clerk  of  the  court  |>M*^^s.' 

9  the  amount  tendered  Tor  the  use  of  the  party  entitled  thereto.  §§  24-26.' 

R.  L.  187,  §  21.  97  Mass.  439.  143  Ma.ss.  49.  230  Mass.  359. 

1  Section  22.     The  person  entitled  to  redeem  may,  before  the  expira-  suit  without 

2  tion  of  the  three  years  limited  for  redemption,  and  before  or  after  an  isl^ss.Ti'"' 

3  entry  for  breach  of  condition,  and  before  a  sale  pursuant  to  a  power  R^l'foy'j^js 

4  contained  in  the  mortgage,  commence  suit  for  redemption  without  pre-  S  fjiP'lay" 

5  vious  tender,  and  mav  in  such  suit  offer  to  pay  such  amount  as  shall  be  isss,  4.S.3. 

6  found  due  from  him,  or  to  perform  such  other  condition  as  the  case  may  7  Met.  157. 
7. require;  but  a  mortgagee  who  has  published  a  notice  of  sale  prior  to  the  io^'M^as3^254. 

8  commencement  of  such  suit  may  proceed  with  said  sale  unless  the  amount  \ll  ^J^;  |q5 

9  due  is  paid  into  court  or  the  sale  enjoined.  ^"'°- 

ISl  Mass.  49.  197  Mass.  19.  230  Mass.  359.  235  Mass.  476. 

1  Section  2-3.     The  court  may  determine,  by  a  reference  to  a  master  or  Order  for 

2  otherwise,  whether  any  and  what  amount  due  on  the  mortgage  is  not  amount  nCt  in 

3  in  dispute,  and  may  by  an  interlocutory  decree  order  it  paid  to  the  is57!'i65,  §  i. 
4"  mortgagee,  or  for  his  use  to  the  clerk  of  the  court. 

G.  S.  140,  §  20.  •  R.  L.  187,  §  23.  148  Mass.  300. 

P.  S.  181,  §  23.  143  Mass.  144.  15S  Mass.  371. 

1  Section  24.     The  court  may  award  costs  in  the  suit  for  redemption  costs. 

2  to  either  party;   but  if  suit  is  brought  without  previous  tender  and  it  is  issJ:  201,^^2. 

3  found  that  the  condition  of  the  mortgage  has  not  been  performed,  the  g'I'ho'IIi' 

4  plaintiff  shall  pay  costs  of  suit,  unless  the  court  finds  that  the  defendant  ^  ^  'j|l;  i-|. 

5  has  unreasonably  refused  or  neglected,  when  requested,  to  render  a  just  2  Pick.  540, 

6  and  true  account  of  the  money  due  upon  the  mortgage  and  of  rents  and  5  pick.  259. 

7  profits  and  amounts  paid  for  taxes,  repairs,  improvements  and  other  u  Gray,  132. 

8  necessary  expenses,  or  that  he  otherwise  by  his  default  prevented  the  112  Mas's*352. 

9  plaintiff  from  performing  or  tendering  performance  of  the  condition  ^^'^  ^^^^^-  ^'^'^■ 
10  before  commencement  of  suit. 

1  Section  25.     If  suit  was  commenced  before  the  expiration  of  the  three  suit  not  barred 

2  years  limited  for  redemption,  and  before  or  after  entry  for  breach  of  tender '^'"^ 

3  condition,  the  plaintiff  shall,  although  the  tender  alleged   is  found  to  Gii^Hoiil^! 

4  be  insufficient,  be  entitled  to  a  decree  for  redemption  as  if  no  previous  ^- 1;  ^^^^1;  \^°j 

5  tender  had  been  alleged. 

1  Section  26.     Except  as  provided  in  section  forty,  a  suit  for  redemp-  venue  and 

2  tion  shall  be  brought  in  the  county  where  the  land  or  any  part  thereof  iSa!  22,  §  2. 

3  lies.     If  the  bill  is  inserted  in  a  writ,  and  the  writ  or  a  copy  thereof,  r.^|;  ^o7,V2i. 

4  attested  by  the  officer,  with  or  without  the  bill  but  with  a  description  of  g's'i4ok§23 

5  the  land  sought  to  be  redeemed,  is  deposited,  within  three  days  after  the  p- 

.  6  dav  on  which  the  service  is  made,  in  the  office  of  the  clerk  of  the  court  to  5§  31. 32! 

7  which  the  writ  is  returnable,  the  service  shall  be  the  commencement  of  7  Met.  157. 

8  the  suit;   otherwise,  the  deposit  of  such  copy  or  writ  shall  be  the  com-  ^  ''^y-^°^- 

9  mencement  of  the  suit. 

1  Section  27.     If  the  court  finds  the  plaintiff  entitled  to  redeem,  it  Decree  for 

2  shall  determine  the  amount  due  on  the  mortgage  or  what  condition  the  i«).s,22,  |4. 

3  plaintiff  is  bound  to  perform  for  the  redemption  of  the  land,  and  shall  11.  s.' 107.  §  23. 


2584 


FORECLOSUEE   AND   REDEMPTION   OF   IMORTGAGES.         [ClL\P.   244. 


G.  S.  140.  §  25. 
P.  S.  LSI.  §  3.3. 
n.  L.  1S7.  §  27. 
5  Pick.  259. 
21  Pick.  355. 
7  Cush.  220. 
1  AUen.  115. 


enter  a  decree  that,  upon  pajTuent  of  such  amount  or  performance  of  4 

such  condition  within  such  time  as  it  shall  order,  the  plaintiff  shall  have  5 

execution  for  possession  of  the  land  and  shall  hold  it  discharged  of  the  6 

mortgage.  5  Alien,  62.  10  AUen,  74.  7 


110  Mass.  57. 
120  M.1SS.  153. 


122  Mass.  76. 
129  Mass.  39S. 


130  Mass.  55. 
140  Mass.  49.  • 


142  Mass.  545. 
203  Maes.  591. 


Interest. 
1850,  21. 
G.S.  140,  §  26. 
P.  S.  181,  §34. 
R.  L.  187,  5  28. 


Section  28.     If  the  court  finds  that  the  mortgagee  has  not  unreason-  1 

ably  neglected  or  refused  to  render  a  true  account  of  rents  and  profits  2 

of  the  land  mortgaged,  it  may  award  him  the  balance  found  due  on  the  3 

mortgage,  with  interest  thereon  at  a  rate  of  not  more  than  twelve  per  4 

cent  a  year  from  the  expiration  of  three  years  after  the  entry  to  the  date  5 

of  the  decree.  6 


Execution  for 
po.ssession. 
1698,  22,  5  4. 
1798,  77,  §  2. 
R.  S.  107.  §  24. 
G.  S.  140,  I  27, 
P.  S.  LSI,  §35. 
R.  L.  187,  §  29. 


Section  29.  The  court  may  at  the  same  time  decree  that,  if  the 
defendant  neglects  or  refuses  to  accept  the  money  or  other  act  required 
by  the  decree  to  be  paid  or  performed,  the  money  shall  be  left  for  his  use 
with  the  clerk  of  the  court,  or  such  other  act  done  as  the  case  requires; 
and  the  plaintiff,  having  performed  all  acts  required  by  the  decree,  may 
have  execution  for  possession  of  the  land. 


Judgment  and 
execution  for 
balance. 
1818,98,  §  2. 
R.  S.  107,  §  25. 
G.  S.  140,  §  2S. 
P.  S.  181,  §  36. 
R.  L.  187.  §  30. 
6  Mass.  264. 
143  Mass.  410. 


Section  30.     If  the  court  finds  that  the  defendant  has  received  from  1 

rents  and  profits  of  the  land  or  otherwise  more  than  is  due  on  the  mort-  2 

gage,  it  shall  award  judgment  and  execution  against  him  for  the  amount  3 

due  to  the  plaintiff;   and  if  there  are  several  defendants,  such  judgment  4 

and  execution  may  be  awarded  against  them,  either  jointly  or  severally,  5 

for  the  amounts  received  by  them  or  any  of  them,  respectively.  6 


of'money'ten-  SECTION  31.  The  court  may  order  the  amount  found  due  the  plain- 
fnTo  TO^iS-l'""''  tiff  for  rents  and  profits  or  costs,  if  any,  to  be  deducted  from  the  amount 
r'^I' 107^26  ^ound  due  the  defendant,  to  whom  the  balance  only  shall  be  paid  from 
p' I' 18?' If-'  ^^y  money  tendered  or  brought  into  court,  and  the  residue,  if  any,  shall 
R.  L.  187,  §  31.  be  paid  to  the  plaintiff. 


PTocSt^'^'''         Section  32.     If  a  person,  other  than  the  parties  to  a  suit  for  redemp-  1 

r'I.' ?07,V28.  tion,  is  interested  therein,  the  court  may,  upon  terms,  cause  him  to  be  2 

G.  s.  140,  §31.   made  a  party  and  may  order  a  subpoena  to  be  issued  and  served  on  him  3 

to  appear  and  answer.  4 

Section  33.     If  the  person  entitled  to  redeem  a  mortgaged  estate  dies,  1 

his  heirs,  devisees,  executor  or  administrator  may  make  a  tender  or  com-  2 

mence  or  prosecute  a  suit  for  redemption  which  the  deceased  might  have  3 

made,  commenced  or  prosecuted.  4 


p.  S.  181, 

§38. 

R.L.  187, 

§  32. 

Survival  of 

right  to 

redeem. 

R.  S.  107, 

§§30,31. 

G.  S.  140, 

§§  32,  33. 

P.  S.  181,  §5  39,  40. 
R.  L.  187,  §  33. 


104  Mass.  277. 
117  Mass.  403. 


170  Mass.  120. 
186  Mass.  430. 


guS-d'ian'or  Section  34.     A  tender  may  be  made  to  a  guardian  or  conservator,  who     1 

R.°s^To7,°§  32.  luayj  upon  satisfaction,  execute  a  release  of  the  mortgage.  2 

G.  S.  140,  §  34.  R.  L.  187,  §  34.  12  Mass.  16. 

P.  S.  181,  §  41.  1913,  23. 


Right  to 

redeem  where 

foreclosure 

opened. 

R.  S.  107,  §  33. 

G.  S.  140,  §  36. 


GENERAL  PROVISIONS. 


Section  35.  If,  after  the  foreclosure  of  a  mortgage  not  containing  a 
power  of  sale,  the  person  entitled  to  the  debt  reco\'ers  judgment  for  any 
part  thereof  on  the  ground  that  the  value  of  the  land  mortgaged  at  the 


Chap.  244.]        foreclosure  and  redemption  of  mortgages.  2585 

'  4  time  of  the  foreclosure  was  less  than  the  amount  due,  such  recovery  shall  ^^^^  ^^^^  5  42. 

5  open  the  foreclosure,  and  the  person  entitled  may  redeem  the  land  Pif'',^*^;!  ^^• 

6  although  the  three  years  limited  therefor  have  expired,  if  suit  for  redemp-  562. ' 

7  tion  is  brought  within  one  year  after  the  recovery  of  such  judgment.        10  Picic.  ssb. 

8  Met.  153.  105  Mass.  106.  117  Mass.  439.  136  Mass.  459. 

10  Met.  344.  110  Ma.=.3.  4SS.  119  Mass.  550.  139  Mass.  500. 

101  Mass.  184.  113  Mass.  139.  124  Mass.  249.  170  Mass.  120,  303. 
103  Mass.  475. 

1  Section  36.     If  a  mortgagee  or  person  claiming  or  holding  under  Aetion  for 

2  him  receives  from  rents  and  profits  of  the  land,  or  upon  a  tender  made  ceivcdW 

3  to  him,  or  in  any  other  manner,  more  than  is  due  on  the  mortgage,  and  isTsfosfl 3. 

4  no  suit  for  redemption  is  brought  against  him,  the  mortgagor  or  other  §;  1:  i4oi  |  lo. 

5  person  entitled  to  such  excess  may  recover  it  in  an  action  of  contract.       ^-  ^-  ^^^'  ^  *^- 

R.  L.  1S7,  §  36.  9  Pick.  171.  130  Mass.  88. 

MORTGAGES   TO    THE    COMMONWEALTH. 

1  Section  37.     If  a  mortgage  is  held  by  the  commonwealth,  the  state  Discharge  of 

2  treasurer  may  demand  and  receive  the  money  due,  and  upon  payment  by  cmnmon*- 

3  shall  make  and  acknowledge  a  discharge.  1804, 103,  §  1.  wealth. 

R.  S.  107,  §35.  G.  S.  140,  §45.  P.  S.  181,  §45.  R.  L.  187,  §  37. 

1  Section  38.     If  the  condition  of  such  mortgage  is  not  duly  performed,  R''s'''i°fj'"''|'36 

2  the  state  treasurer  may  cause  an  entry  for  breach  of  condition  to  be  made  p|- 140,  §46. 

3  in  the  name  and  behalf  of  the  commonwealth  by  himself  or  a  person  whom  R.  l.  is7,  §  3s. 

4  he  appoints,  or  he  may  bring  an  action  in  the  name  of  the  commonwealth 

5  to  recover  possession  of  the  land  mortgaged;  and  possession  obtained  by 

6  entry  or  by  action  shall  have  the  same  effect  in  foreclosing  the  right  of 

7  redemption  as  a  similar  possession  by  any  other  mortgagee. 

1  Section  39.     The  mortgagor  or  his  assigns  may  redeem  the  land  in  like  Redemption 

2  manner  and  upon  like  terms  as  if  held  by  any  other  mortgagee,  and  the  fso"%V,  §  2. 

3  payment  or  performance  of  the  condition  shall  be  made  or  tendered  to  §!  i:  uo,  §  4?: 

4  the  state  treasurer.  p.  s.  isi,  §  47.  r.  l.  i87,  §  39. 

1  Section  40.     If  the  state  treasurer  and  the  person  appljang  to  redeem  Suit  for 

2  the  mortgage  do  not  agree  upon  the  amount  due,  the  person  so  applying  i804™i'o3?"§  2. 

3  may  bring  in  the  supreme  judicial  or  the  superior  court,  for  the  county  f^  ts^al'. 

4  of  Suffolk,  a  suit  in  equity  against  the  commonwealth  for  the  redemption,  p- 1-  J^}*'  |  ^|- 

5  The  process  shall  be  served  on  the  state  treasurer,  who  shall  appear  and  Pot^ji ''I'  ii"' 

6  answer  in  behalf  of  the  commonwealth;  and  like  proceedings  shall  be  had 

7  and  like  judgment  rendered  as  in  case  of  other  mortgagees,  except  that  the 

8  state  treasurer  shall  accept  any  payment  due  the  commonwealth,  and  upon 

9  receipt  thereof,  or  upon  performance  of  such  other  condition  as  the  court 

10  orders,  shall  discharge  the  mortgage  in  like  manner  as  when  the  debt  is 

11  paid  without  suit. 

REFERENCES. 

Foreclosure  of  mortgage  of  registered  land.  Chap.  185,  §  70. 

Right  of  person  entitled  to  land  by  foreclosure  of  mortgage  to  recover  possession 
by  ejectment.  Chap.  239,  §  1. 

Rights  and  duties  of  purchaser  at  foreclosure  sale  under  mortgage  of  railroad, 
Chap.  160,  §  .55. 

Sale  of  lands  where  title  vested  in  commonwealth  by  foreclosure  of  mortgage, 
Chap.  29,  §  37. 

Effect  of  soldiers'  and  sailors'  relief  act  (40  U.  S.  Sts.  at  L.  444),  Hoffman  v. 
Charlestown,  etc.,  Bank,  231  Mass.  324;  Morse  v.  Stober,  233  Mass.  223;  John 
Hancock  Mutual  Life  Ins.  Co.  v.  Lester,  234  Mass.  559. 

Right  of  executor  or  administrator  of  deceased  holder  of  mortgage  to  foreclose, 
Chap.  206,  §  9. 


2586 


INFORMATIONS   BY   THE    COMMONT\'EALTH. 


[CH-A-P.   245. 


§  1.     When  mortgagee  in  possession  after  entry  to  foreclose  deemed  owner  for 

taxation,  Chap.  59,  §  14. 
§  7.     Release  of  mortgage  by  executor  or  administrator  of  deceased  holder  on 
redemption,  Chap.  206,  §  10. 
§  18.     Right  of  assignee  in  insolvency  to  redeem  from  mortgage  given  by  debtor, 
Chap.  216,  §  54. 
Right  of  dower  tenant  where  heir  redeems  from  mortgage  given  by  de- 
ceased husband,  Chap.   189,  §  4. 
Right  of  judgment  debtor  to  redeem  from  mortgage  where   creditor  has 

paid  mortgage  debt.  Chap.  236,   §  35. 
Right  of  tenant  for  long  term  of  years  to  redeem  from  mortgage  of  demised 
estate.  Chap.  186,  §  1. 
§  20.      Equitable   power   of  court   in   which   is   pending  real   action   to  foreclose 
mortgage  to  restrain  waste  by  tenant,  Chap.  242,  §  9. 


CHAPTER    245 


INFORMATIONS   BY  THE   COMMONWEALTH. 


Sect. 

1.  Information  for  unlawful  entry. 

2.  When   order   of   governor   and   council 

necessary. 

3.  Practice. 

4.  Notice  by  publication. 

5.  Who  may  defend  action.     Costs. 

6.  Liability  for  rents  and  profits  and  im- 

provements. 


Sect. 
7.  Commonwealth   seized   without  execu- 
tion. 
S.  Conclusiveness  of  judgment. 
9.  Writ  of  entry  by  person  not  concluded. 

10.  Against  whom  writ  shall  be  brought. 

11.  Liability  for  rents  and  profits  and  im- 

provements. 

12.  Costs. 


Information 

for  unlawful 

entry. 

1791,  13.  §  2. 

179S,  43.  §  1. 

R.  S.  108, 

§§1.2. 

G.  S.  141,  §  1. 

P.  S.  182,  §  1. 

R.  L.  188,  §  1. 

9  Gray,  451. 


Section  1.  If  a  person  unlawfully  enters  upon  or  holds  land  belong- 
ing to  the  commonwealth,  it  may  be  recovered  upon  an  information 
filed  by  the  attorney  general  or  by  a  district  attorney  in  the  superior 
court  in  any  county,  describing  the  land  and  setting  forth  the  title 
and  claim  of  the  commonwealth  thereto.  A  summons  returnable  in  the 
county  where  the  land  lies  shall  thereupon  issue  to  the  defendants. 


When  order  of 

governor  and 

council 

necessary, 

1791.  13,  §  1. 

179R,  4. 

1798,43,  §  1. 

R.  S.  108, 

§§6,7. 

G.  S.  141, 

§§3,4. 

P.  S.  182, 

§§  2,  3. 

R.  L.  188,  §  2. 

1919,  305. 


Section  2.  If  the  title  of  the  commonwealth  is  founded  on  a  for- 
feiture for  breach  of  a  condition  in  a  grant  or  conveyance  by  the  com- 
monwealth or  by  the  province  or  colony  of  INIassachusetts  bay,  no  action 
for  the  recovery  thereof  shall  be  commenced  unless  by  direction  of  the 
governor,  with  the  advice  and  consent  of  the  council;  but  in  all  other 
cases  the  attorney  general  or  district  attorney  may  prosecute  an  ac- 
tion therefor  if  he  believes  that  the  claim  of  the  commonwealth  can  be 
established. 


Practice. 
1791,  13.  §  1. 
R.  S.  108,  §  3. 
G.  S.  141,  §  2. 


Section  3.     Service  of  the  summons  and  all  other  proceedings  shall,     1 
except  as  otherwise  provided,  be  substantially  the  same  as  in  real  actions.     2 

p.  S.  182,  §  4.  R.  L.  188,  §  3. 


Notice  by 
publication. 
1791,  13.  §  2. 
R.  S.  108,  §  8. 
G.  S.  141,  §  5. 
P.  S.  182,  §  5. 
R.  L.  ISS,  I  4. 


Section  4.  If,  in  case  of  a  supposed  escheat,  no  person  appears  as 
the  heir  of  the  person  last  seized,  or  if  in  any  case  there  is  reason  to  sup- 
pose that  there  is  a  person  claiming  an  estate  or  interest  in  the  land,  whose 
name  is  unknown,  who  is  absent  from  the  commonwealth  or  who  cannot 
be  found  therein  to  be  served  with  process,  the  court  shall,  in  addition 
to  any  other  service,  order  the  substance  of  the  information  with  the 
order  of  the  court  thereon  to  be  published  once  in  each  of  three  successive 


Chap.  245.]  informations  by  the  commonwealth.  2587 

8  weeks  in  a  newspaper  designated  by  it,  the  first  publication  to  be  at  least 

9  ninety  days  before  the  time  appointed  for  the  appearance  of  the  parties. 

1  Section  5.     A  person  claiming  an  estate  or  interest  in  the  land,  al-  ^^^  "tioif*^ 

2  though  not  named  in  the  information  nor  served  with  process,  may  appear  S°'i^  ,„„ 

3  and  answer  thereto;  but  a  defendant  not  named  shall  not  recover  costs  §§9,'io.  ' 

4  against  the  commonwealth,  unless  it  appears  that  he  has  an  estate  or  §§6.' 7. 

5  interest  in  the  land,  although  the  commonwealth  fails  to  establish  its  §'§o'.  7^^'    . 

6  claim  thereto.     If  there  are  several  defendants,  the  court  may  award  ^'  ^'  ^^^'  ^  *• 
Y  costs  for  or  against  any  one,  as  if  he  were  the  sole  defendant. 

1  Section  6.     If  the  commonwealth  prevails,  the  defendant  shall  be  Liability  for 

2  chargeable  for  rents  and  profits  and  be  entitled  to  an  allowance  for  im-  profita  and 

3  provements  as  provided  in  chapter  two  hundred  and  thirty-seven.  R!'s.°io8,''rii. 

G.  S.  141,  §  S.  p.  S.  182,  §  8.  R.  L.  IBS.  §  6. 

1  Section  7.     The  commonwealth  shall  be  actually  seized  and  pos-  common- 

2  sessed  of  the  land  as  soon  as  judgment  is  rendered  in  its  favor,  without  wuhout'exe- 

3  a  writ  of  possession.  1791, 13,  §  3.  '^""°°- 

R.  S.  108,  §  5.  G.  S.  141.  §  9.  P.  S.  182,  §  9.  R.  L.  188.  §  7. 

1  Section  S.     The  judgment  shall  be  conclusive  between  the  common-  Conciusive- 

2  wealth  and  the  defendants  who  appear  and  answer,  and  against  every  j'udgment. 

3  person  named  as  a  defendant  upon  whom  the  summons  has  been  duly  r™s!  lo'sf  ^12. 

4  served  within  the  commonwealth  and  against  all  persons  claiming  under  p's'ii^'iio' 

5  such  defendants.  R.  l,  iss,  §8. 

1  Section  9.     A  person  not  concluded  by  a  judgment  for  the  com-  writ  of  entry 

2  monwealth  under  the  preceding  section  may,  until  his  claim  is  barred  by  concluded.""' 

3  law  for  the  limitation  of  real  actions  or  otherwise,  bring  a  writ  of  entry  q-  |;  j^f;  |  If 

4  to  recover  the  land  from  the  commonwealth  or  from  any  person  then  ^  ^  ^f^^  \^^- 

5  holding  under  it.     He  may  deny  and  disprove  any  facts  alleged  and 

6  proved  in  the  first  action  and  allege  and  p^o^'e  other  facts  in  support  of 

7  his  claim  and  shall,  if  it  appears  that  he  is  entitled  to  the  land,  have 

8  judgment  and  execution  therefor. 

1  Section  10.     If  the  commonwealth  continues  seized  of  the  land  when  Against  whom 

2  such  new  action  is  commenced,  such  action  shall  be  brought  against  the  bebrought. 

3  tenant  or  occupant  thereof,  and,  in  addition  to  the  service  on  him,  a  copy  §•  |-  J^^'  |  }|- 

4  of  the  original  writ  or  summons  shall  be  left  with  the  attorney  general  or  p-  |-  i||'  |  12. 

5  district  attorney  at  least  fourteen  days  before  the  return  day.     If  the 

6  commonwealth  has  granted  away  the  land,  the  action  shall  be  brought 

7  against  the  tenant  of  the  freehold.    In  either  case  it  shall  be  conducted  and 

8  disposed  of  as  if  no  such  information  had  been  filed. 

1  Section  11.     If  the  demandant  recovers  judgment,  he  shall  be  entitled  J'juf'j^and'" 

2  to  rents  and  profits  and  chargeable  for  improvements  as  provided  in  profitaand 

3  chapter  two  hundred  and  thirty-seven,  although  the  land  has  not  been  i798, 43,  §  2. ' 

4  held  and  possessed  for  six  years  under  the  adverse  title.  g!  s!  hi,  §  13! 

p.  S.  182,  §  13.  R.  L.  188,  §  11. 

1  Section  12.     Costs  shall  be  awarded  and  taxed  for  the  prevailing  c_osts. 

2  party.    If  judgment  is  for  the  commonwealth,  an  execution  for  costs  r."'s.'  los,  §  4, 

3  shall  issue;   if  it  is  for  the  defendant,  the  costs  shall  be  paid  by  the  p.  il lii' i u.' 

4  commonwealth.  R.  l.  188,  §  12. 


2588 


TRUSTEE   PROCESS. 


[Chap.  246. 


TITLE    lY. 

CERTAIN  WRITS  AND  PROCEEDINGS  IN  SPECIAL  CASES. 

Chapter  246.  Trustee  Process. 

Chapter  247.  Replevin. 

Chapter  248.  Habeas  Corpus  and  Personal  Liberty. 

Chapter  249.  Audita  Querela,  Certiorari,  Mandamus  and  Quo  Warranto. 

Chapter  250.  Writs  of  Error,  Vacating  Judgment,  Writs  of  Review. 

Chapter  251.  Arbitration. 

Chapter  252.  Improvement  of  Low  Land  and  Swamps. 

Chapter  253.  Mills,  Dams  and  Reservoirs. 

Chapter  254.  Liens  on  Buildings  and  Land. 

Chapter  255.  Mortgages,  Conditional  Sales  and  Pledges  of  Personal  Property,  and 

Liens  thereon. 

Chapter  256.  Recognizances  for  Debts. 

Chapter  257.  Seizure  and  Libelling  of  Forfeited  Property. 

Chapter  258.  Claims  against  the  Commonwealth. 


CHAPTER    246 

TRUSTEE  PROCESS. 


Sect. 

commencement  and  service  of  process. 

1.  Actions  which  may  be  commenced  by 

trustee  process.     Who  may  be  trus- 
tees. 

2.  Venue  of  action. 

3.  Change  of  venue. 

4.  Venue  in  district  courts. 

6.  Service  of  trustee  writs.     Attachment 
of  other  property. 

6.  Service  upon  paymaster  of  foreign  cor- 

poration. 

7.  District  court   trustee  -n-rits.      Return 

day.     Service  on  partnership. 

5.  New  tinistees.     Successive  sen^ices. 

9.  Proceedings  if  trustees  are  discharged. 

APPEARANCE  AND  ANSWER  OF  TRUSTEE. 

10.  Answer  of  trustee,  filing,  contents. 

11.  Answer  to  be  under  oath,  except. 

12.  Interrogatories. 

13.  Discharge  of  trustee. 

14.  Admission  of  funds  by  trustees. 

15.  Answer  by  corporation. 

16.  Answer  of  trustee  to  be  taken  as  true, 

etc. 

17.  Trial    of   questions   of   fact   arising  on 

answer. 


Sect. 

18.  Default  of  trustee. 

19.  Penalty  for  false  answer  by  trustee. 

PEOPERTT      LIABLE      TO      ATTACHMENT      BY 

trustee  process. 

20.  Effect  of  attachment  by  trustee  proc- 

ess. 

21.  Liability  of  executors,  etc.,  as  trustees. 

22.  Liability  as  trustee  of  assignee  in  in- 

solvency. 

23.  Liability  of  receivers. 

24.  Attachment  of  money,  etc.,  due  but  not 
payable. 

Trustee  chargeable  if  conveyance  to  him 
fraudulent. 

Mutual    demands    between    defendant 
and  trustee. 
27.  Trustee   not   chargeable   for   pajTnent 
before  knowledge  of  service. 

Wages  exempt  from  attachment,  when. 

Tender  and  offer  of  judgment. 

Penalty   for  attaching   wages   exempt 
from  attachment. 

Bond  by  plaintiff  to  indemnify  savings 
bank. 
32.  Claims  not  attachable  by  trustee  proc- 
ess. 


25 


26 


Chap.  246/ 


TRUSTEE   PROCESS. 


2589 


Sect. 

adverse  claimants. 

33.  Proceedings   if  goods   are   claimed   by 

third  person. 

34.  Proceedings   upon   assignment   by   de- 

fendant as  security  for  debt. 

PROCEEDINGS    IF    ACTION    PENDING    AGAINST 
TRUSTEE. 

35.  Proceedings  if   action  pending  by  de- 

fendant against  trustee. 

36.  Judgment    debtor    not    chargeable    as 

trustee,  when. 

37.  Proceedings  if  defendant  in  pending  ac- 

tion is  adjudged  trustee  of  plaintiff. 

38.  Proceedings  if  defendant  claims  set-off 

in  pending  action  by  trustee. 

JUDGMENT   AND    EXECUTION. 

39.  Form  of  judgment  charging  trustee. 

40.  Further  attachment  of  goods,  when. 

41.  Liability  of  trustee  after  thirty  days, 

when. 

42.  Demand  on  absent  trustee. 

43.  Effect  of  judgment  against  trustee. 

44.  Discharge  of  trustee  no  bar  to  action  by 

defendant. 

SCIRE    FACIAS    AGAINST    TRUSTEE. 

45.  Scire  facias  against  trustee. 

46.  Proceedings  upon  default  of  trustee  on 

scire  facias. 

47.  Same  subject. 

48.  Proceedings  upon  appearance  of  trustee. 

49.  Limitation  of  action  on  scire  facias. 

DEATH    OP   PARTIES. 

50.  Death  of  trustee  before  judgment. 

51.  Proceedings. 

52.  Same  subject. 

53.  Death  of  trustee  after  judgment. 

54.  Same  subject. 

PROCEEDINGS  IF  AN  EXECUTOR  IS   CHARGED 
AS  TRUSTEE. 

55.  Service  of  execution  when  executor  or 

administrator  is  adjudged  trustee. 

56.  Reraedj'  against  executor  failing  to  pay 

amount  for  which  ho  is  cliargcd. 


Sect. 

proceedings    if    trustee    has    specific 
property. 

57.  Proceedings  if   trustee  is  charged   for 

specific  property. 

58.  Same  subject. 

59.  Delivery  by  trustee  of  specific  property 

according  to  contract. 

60.  Tender  by  plaintiff  of  amount  for  which 

trustee  holds  property  as  security. 

61.  Disposal  if  held  for  other  purpose  than 

as  security. 

62.  Disposal  of  property  by  officer. 

63.  Sale   by   trustee   of   property   held   as 

security,  etc. 

64.  Liability  of  trustee  for  neglect  to  deliver 

property  for  which  he  is  charged. 

65.  Liability    of    carrier   if   prevented    by 

trustee  process  from  making  delivery. 

DISSOLUTION    OF   ATTACHMENT    BY    TRUSTEE 
PROCESS. 

66.  Person  other  than  defendant  may  file 

bond.  etc. 

67.  Delivery  of  property  by  trustee.     Lim- 

itation of  action  on  bond. 


68.  Costs  of  trustee. 

69.  Costs  payable  out  of  effects,  when. 

70.  Costs  payable  by  plaintiff,  when. 

71.  Costs  of  person  absent  from  common- 

wealth. 

72.  Costs    of    person    summoned    out    of 

county. 

73.  Liability  of  trustee  neglecting  to  appear. 

74.  Recovery  of  costs. 

75.  Liability  of  several  trustees  for  plain- 

tiff's costs. 

76.  Costs  in  action  against  trustee. 

77.  Liability  of  trustee  for  costs  on  scire 

facias,  when. 

78.  Same  subject. 

79.  Same  subject. 

80.  Execution  for  costs  against  trustee. 

81.  Costs  against  several  trustees. 

82.  Costs  in  case  of  adverse  claimant. 

83.  Costs  if  damages  do   not  exceed   ten 

dollars. 


COMMENCEMENT  AND   SERVICE   OF  PROCESS. 

Section  1.  All  personal  actions,  except  tort  for  malicious  prosecu- 
tion, for  slander  or  libel  or  for  assault  and  battery,  and  except  replevin, 
may  be  commenced  by  trustee  process,  and  any  person  may  be  sum- 
moned as  trustee  of  the  defendant  therein;  but  an  individual  who  is  not 
an  inhabitant  of  the  commonwealth,  or  a  foreign  corporation  or  asso- 
ciation, shall  not  be  so  summoned  unless  he  or  it  has  a  usual  place  of  busi- 
ness in  the  commonwealth. 


Actions  which 
may  be  com- 
menced by 
trustee  process. 
Who  may  be 
trustees. 
1708-9.  7. 
172S-9.  3, 
1738-9,  1.5, 
1753-4,  2S. 
17SS-9,  10. 


1. 
1. 
§1. 


1. 


1794,  65,  § 

1832,  ie4, § 

1833,  171. 
R.S.  109,  §§1,4,  6, 
71,  76,  77. 

1835,  141, §  1. 

1839,  158. 

G.S.  142,  §§  1,75. 


1870,  194. 
P.  .S.  183,  §  1. 
R.  L.  1S9,  §  1. 
13  Mass.  80. 
16  Mass.  299. 

3  Pick.  302. 
15  Pick.  445. 

4  Met.  486. 


13  Met.  471. 

9  Allen,  570. 

10  Allen,  463. 

11  Allen.  357. 
121  Mass.  380. 
129  iMass.  444. 

150  Mass.  560. 

151  Mass.  501. 


152  Mass.  64. 
161  Mass.  287. 
176  Mass.  48.  113. 
204  Mass.  327. 

215  Mass.  83. 

216  Mass.  118. 
218  Mass.  333. 
230  Mass.  117. 


2590 


TRUSTEE   PROCESS. 


[Chap.  246. 


Venue  of 
action. 
1794,65,  §  1. 
E.  S.  109,  §  7. 
1852,  287. 
G.  S.  142,  §4. 
P.  S.  183,  §  3. 
R.  L.  189,  §  2. 
14  Mass.  132. 
22  Pick.  250. 
4  Cush.  5S8. 


Section  2.  If,  in  an  action,  suit  or  proceeding  commenced  in  the 
supreme  judicial  or  superior  court  by  trustee  process,  all  the  persons 
named  in  the  WTit  as  trustees  dwell  or  have  usual  places  of  business  in 
one  county,  the  vrrit  shall  be  returnable  in  such  county;  otherwise,  it 
may  be  returnable  in  any  county  where  any  one  of  them  dwells  or  has 
a  usual  place  of  business. 

6  Cush.  560.  7  Gray,  282.  11  Allen,  357.  193  Mass.  84. 


12  Cush.  284. 


1  Allen,  2S6. 


150  Mass.  560. 


218  Mass.  333. 


Change  of 
venue. 
1893,  285. 
R.  L.  1S9,  §  3. 


Section*  3.    If,  in  an  action,  suit  or  proceeding  commenced  in  the  1 

supreme  judicial  or  superior  court  by  trustee  process,  the  court  finds  2 

that  tlie  trustee  was  made  a  party  in  order  to  give  the  court  jurisdic-  3 

tion  of  the  cause  in  the  county  where  the  trustee  dwells  or  has  a  usual  4 

place  of  business,  and  that  neither  the  plaintiff  nor  the  principal  de-  5 

fendant  dwells  or  has  a  usual  place  of  business  therein,  it  may,  upon  6 

motion  of  the  defendant  at  any  time  before  trial,  order  the  cause  and  all  7 

papers  relating  thereto  transferred  to  a  county  where  some  one  of  the  8 

principal  parties  dwells  or  has  a  usual  place  of  business,  upon  terms.  9 

The  cause  shall  thereupon  be  entered  and  prosecuted  in  the  same  court  10 

for  that  county  as  if  originally  returnable  therein,  and  all  prior  pro-  11 

ceedings  otherwise  regularly  taken  shall  thereafter  be  valid.  12 


Venue  in 
district  courts. 
R.  S.  109,  §  72. 
G.S.  142,  §  78. 
1874,  271,  §  9. 
P.  S.  183,  I  4. 
1893,  396,  §  13. 
1894,398,  §  1; 
431. 

R.  L.  189,  §  4. 
1917,  326. 


Section  4.    No  person  shall  be  held  to  answer  as  a  trustee  in  an  1 

action  in  a  district  court,  except  as  provided  in  section  fifty-four  of  2 

chapter  two  hundred  and  eighteen,  in  any  county  other  than  that  where  3 

he  dwells  or  has  a  usual  place  of  business;  and  if  a  person  summoned  as  4 

trustee  in  such  court  is  out  of  the  county  at  the  time  of  the  service  of  5 

the  original  writ  upon  him,  and  does  not  return  before  final  judgment  6 

in  the  action,  he  shall  not  be  chargeable  as  trustee.  7 


Service  of 
trustee  writs. 
Attachment  of 
other  property. 
1708-9,  7.  §  2. 
1728-9.  3,  §  2. 
1738-9. 15.  5  2. 
1758-9, 10,  I  2. 
1794.  65,  §  1. 
R.  S.  109,  §  8. 
1852,  287. 
G.  S.  142,  §  5. 
P.  S.  183,  §  6. 


Section  5.     Trustee  writs  shall  be  served  by  copy  on  each  trustee  and  1 

on  the  defendant.    In  other  respects  service  upon  trustees  and  defend-  2 

ants  shall  be  in  the  manner  pro^•ided  by  chapter  two  hundred  and  3 

twenty-three.    Goods  and  estate  of  the  defendant  in  his  own  hands  and  4 

possession  may  be  attached  upon  a  trustee  vrv'it  in  the  manner  provided  5 

in  said  chapter,  and  the  writ  shall  be  further  served  upon  each  of  the  6 

trustees  and  upon  the  defendant.  7 


R.  L.  1S9.  §  5. 
6  Mass.  60. 


16  Mass.  473. 
13  Met.  471. 


8  Cush.  518. 
119  Mass.  142. 


129  Mass.  444. 
169  Mass.  562. 


Service  upon 
pa\Tnaster  of 
foreign  cor- 
poration. 
1911,70. 
1919. 350. 
I§  52,  53. 


Section  6.     When  a  foreign  corporation  having  a  usual  place  of  1 

business  in  the  commonwealth  is  smnmoned  as  trustee  in  an  action  2 

against  one  of  its  employees,  service  of  the  writ  may  be  made  as  pro-  3 

vided  in  section  thirty-eight  of  chapter  two  hundred  and  twenty-three,  4 

or  upon  any  paymaster  or  other  officer  or  agent  of  the  corporation  5 

whose  duty  it  is  to  pay  such  employee,  and  such  service  shall  be  as  6 

binding  upon  the  corporation  as  if  it  had  been  made  upon  the  com-  7 

missioner  of  corporations  and  taxation.  8 


District  court 
trustee  writs. 
Return  day. 
Ser\'ice  on 
partnership. 
1878,  2R0.  §  1. 
P.  S.  183.  §  7. 
1887,  33. 
1892,  14S. 


Section  7.     A  trustee  ■WTit  issued  by  a  district  court  shall  be  return-  1 

able  not  more  than  thirty  days  after  the  date  thereof  and  be  served  2 

seven  days  at  least  before  the  return  day.     If  co-partners  are  so  sum-  3 

moned  as  trustees  and  the  partnership  is  properly  described  in  the  writ,  4 

service  of  the  writ  upon  one  partner  shall  be  sufficient.  5 

1893,  396,  §  17.  1894,  398,  5  2,  R.  L.  189,  §  6.  1917,  326. 


Chap.  24G.]  trustee  process.  2591 

1  Section  8.     The  plaintiff  may  at  any  time  insert  the  names  of  other  New  trustees. 

2  trustees  in  the  writ  and  cause  the  writ  to  be  served  upon  them;   and,  se'rxdces.^^ 

3  after  service  upon  a  trustee,  he  may  cause  the  writ  to  be  af;;ain  served  R.^l.'foo.l'g. 

4  upon  him  in  hke  manner  and  with  the  same  effect  as  if  it  had  not  been  p;|i||;|s' 

5  previously  ser\ed.    A  writ  served  upon  a  trustee  after  service  upon  the  ^■piek*®25o'^' 

6  defendant  shall  be  again  served  upon  the  defendant. 

142  Mass.  447.  215  Mass.  341. 

1  Section  9.     The  plaintiff  may  proceed  in  the  action  against  the  de-  Proceedings 

2  fendant  if  the  writ  has  been  served  upon  him  or  if  he  has  had  notice  of  the  disSarged'"^'' 

3  action  or  has  appeared  and  answered  thereto,  although  all  the  trustees  nglilj'i^^' 

4  have  been  discharged.  R.  s.  io9,  §  lo.  g.  s.  142.  §  7. 

p.  S.  IS.3.  §  9.  1  Pick.  389.  6  Gush.  560.  119  Mass.  142. 

R.  L.  189,  §  S.  13  Met.  471.  5  Gray,  309.  139  Mass.  471. 

APPEARANCE  AND  ANSWER  OF  TRUSTEE. 

1  Section  10.    A  person  summoned  as  trustee  in  the  supreme  judicial  ^^^^^"  gij^g 

2  or  superior  court  shall  appear  and  file  his  answer  within  ten  days,  or  ^Sj^^gls     73 

3  in  a  district  court  within  three  davs,  after  the  return  dav  of  the  writ,  1852!  312!  §  se! 

4  unless  further  time  is  allowed  by  the  court.    The  answer  shall  disclose  p.s.iss,' 

5  plainly,  fully  and  particularly  what  goods,  effects  or  credits,  if  any,  of  is85,'3S4,  §  9. 
f)  the  defendant  were  in  the  hands  or  possession  of  the  trustee  when  the  1917',  326.  ^  *' 

7  writ  was  served  upon  him.  12  Pick.  i67.  3  Met.  297. 

4  Cush.  267.  14  Grav,  453.  97  M.iss.  110.  220  Mass.  285. 

12  Gray.  431.  10  .\llen.  160.  183  Mass.  455.  227  Mass.  7. 

1  Section  11.     Such  answer  shall  be  signed  and  sworn  to  by  the  trus-  Answer  to  be 

2  tee,  except  that  in  a  district  court  it  may  be  signed  by  the  trustee  or  his  except""   ' 

3  attorney,  without  being  sworn  to,  if  the  alleged  trustee  declares  that  he  R.^s.'i'og,  §  ii. 

4  had  not  in  his  hands  or  possession  at  the  time  of  service  of  the  writ  upon  HH'^  ^n.  |  If. 

5  him  any  goods,  effects  or  credits  of  the  defendant,  and  submits  himself  P.- 1- 1*'^- 

6  thereupon  to  examination  on  oath. 

p.  S.  183,  §§  11,  13.  R.  L.  189,  §  10.  1917,320. 

1  Section  12.     The  plaintiff   may   from   time   to   time   examine   the  interrogatoriea. 

2  alleged  trustee  upon  written  interrogatories  filed  in  the  clerk's  office,  it  a' m  I  fi. 

3  The  answers  thereto  shall  be  signed,  sworn  to  and  filed  in  said  office  \lll\  fH]  |  gf; 

4  within  seven  days  after  notice  to  the  trustee  or  his  attorney  of  the  filing  P.  ^  ^^^' 

5  of  the  interrogatories,  unless  the  court  otherwise  orders.    If  the  answers  F;?!,^??' 

6  are  not  so  filed,  the  court  may  make  such  order  as  the  case  may  require.  R  lT'i89,  §  ii. 

21  Pick.  21.  131  Mass.  231.  220  Mass.  205.  "^  ^"''''  *'''' 

3  Met.  297.  136  Mass.  407.  227  Mass.  7. 

8  Cush.  518.  194  Mass.  398.  229  Mass.  316. 

1  Section  13.     If  the  answer  of  the  alleged  trustee  shows  that  at  the  Discharge 

2  time  of  service  of  the  writ  upon  him  he  had  not  in  his  hands  or  possession  itm^oT's  3. 

3  any  goods,  effects  or  credits  of  the  defendant,  and  the  plaintiff  declines  §•  f-  }5|;  1 19; 

4  to  examine  him,  or  if  upon  examination  his  answer  appears  to  be  true,  he  E  ^  i^^s  §  13 

I-      1      Ti    1  !•      I  1  '  R.  L.  189,  §  12. 

5  shall  be  discharged.  9  Cush.  530.  220  Mass.  285. 

1  Section  14.     A  person  summoned  as  trustee  who  admits  that  he  Admission 

2  has  in  his  hands  any  goods,  effects  or  credits  of  the  defendant,  or  who  trus'teM.''^ 

3  wishes  to  submit  the  question  to  the  court  whether  he  is  chargeable  f^.f^-  l^J!^  |  ^^3 

4  upon  the  facts,  may  make  a  written  statement,  on  oath,  of  such  facts  as  J.^^^s'f.'.T'lgY' 

5  are  material.    The  plaintiff  may  then  examine  him,  on  oath,  upon  written  p-  s.  iss,'  §  is. 

6  interrogatories,  and  the  statement,  interrogatories  and  answers  shall  be  i9i7i326.' 

7  filed  in  the  clerk's  office. 


2592 


TRUSTEE   PROCESS. 


[ClL\P.   246. 


ra'Jiorahon.  SECTION  15.     A  Corporation  summoned  as  trustee  may  appear  and 

R*  a' 109.' 1 6.'    answer  by  its  cashier,  treasurer,  clerk  or  such  other  officer  as  it  shall 
p'l  isl'l  16'  appoint  or  as  the  court  shall  require  to  attend  for  that  purpose,  and  his 
R- L.  1S9,  §  14.  answer  and  examination,  on  oath,  shall  be  received  as  the  answer  and 
examination  of  the  corporation. 


.\nswer  of 

trustee  to  be 

taken  as  true, 

etc. 

1S17,  148.  I  1. 

R.  S.  109.  §  15. 

G.S.  142,  §  11. 


Section  16.  The  answer  and  statements  of  a  trustee,  on  oath,  shall 
be  considered  as  true  in  determining  how  far  he  is  chargeable;  but  either 
party  may  allege  and  pro^■e  any  facts  material  in  determining  such  ques- 
tion and  not  stated  or  denied  by  the  trustee. 


P.S.  183.  §  17. 
R.L.  189.  §  15. 

3  Pick.  1. 

5  Pick.  480. 

6  Pick.  474. 
12  Pick.  383. 
2  Met.  376. 

4  Gush.  314. 
9  Cush.  530. 


10  Cush.  104. 
7  Gray,  4'.!  1. 

11  Grav,  404. 
97  Mass.  110. 

99  Mass.  311.  469,550. 
107  Mass.  116. 
Ill  Mass.  154. 

126  Mass.  535. 

127  Mass.  136. 


140  Mass.  271. 
145  Mass.  195. 
166  Mass.  152. 
1S9  Mass.  34V. 
194  Mass.  398. 
211  Mass.  146. 
219  Mass.  495. 
232  Mass.  493. 


iions' of  fact'"  SECTION  17.  A  qucstion  of  fact  arising  upon  such  additional  allega-  1 
answel°°  tious  may  be  tried  and  determined  by  the  court,  or  it  may  be  submitted  2 
1817, 148.  §  1.    ^Q  g^  j^py  jjj  gm;]^  mauucr  as  the  court  orders.  3 

R.  S.  109,  I  16.  P.  S.  183.  §  18.  1917,  326.  189  Mass.  296. 

G.S.  142,  §12.  R.  L.  189,  §  16.  97  Mass.  110.  232  Mass.  493. 


Default  of 
trustee. 

1758-9.  10.  §  4. 
1794,  65.  I  5. 
R.  S.  109,  §  14. 


Section  18.  A  person  who,  being  duly  summoned  as  a  trustee,  neg-  1 
lects  to  appear  and  answer  as  hereinbefore  provided  shall  be  defaulted  2 
and  adjudged  a  trustee.  issi,  233, 5  73.  3 


1S52,  312,  I  50. 
G.  S.  142,  §  13. 


P.  S.  183.  §  19. 
R.  L.  189,  §  17. 


10  Mass.  25. 
6  Allen,  582. 


Penalty  for 
false  answer 
bv  trustee. 
1794,  65,  §  9. 
R.  S.  109.  5  78. 
G.  S.  142,  §  14. 
P.  S.  183.  §  20. 
R.  L.  189.  §  IS. 
1  Cush.  457. 
8  Cush.  199. 
4  Allen,  391. 


Section  19.  If  a  person  summoned  as  trustee,  his  executor  or  adminis- 
trator, or  if  an  officer,  agent  or  other  person  who  appears  and  answers  for 
a  corporation  so  summoned,  knowingly  and  wilfully  swears  falsely  in  his 
answer  or  upon  his  examination,  he  shall  be  liable  in  tort  to  the  plaintiff 
in  the  trustee  process,  or  to  his  executor  or  administrator,  for  the  full 
amount  due  on  the  judgment  recovered  therein,  with  interest,  to  be  paid 
out  of  his  own  goods  and  estate. 


1 

2 

3 
■4 
5 

6 

7 


property   LLUJLE  to   ATTACHilENT  BY  TRUSTEE   PROCESS. 


attachment  by       SECTION  20.     The  goods,  cff  ccts  or  Credits  of 
\''.y^i^%  P"."*^-  to,  or  deposited  in  the  hands  or  possession  of, 

liOS-9,  7,  §1.  .  1      11  1  •        1'  '11 

1728-9,3,  §1.  his  trustee  shall,  except  as  hereinaiter  provided 
1758-9!  lb.  §  1.  to  respond  to  the  final  judgment,  as  if  they  had 
1794;  65!  1 1.     original  WTit  of  attachment.  R.  s.  109,  §  4. 

P.  S.  183.  §  21.  ,     11  Gray,  18. 

R.  L.  189.  §  19.  12  Gray,  431,  437. 

3  Mass.  319.  15  Gray,  532. 

4  Mass.  102.  16  Gray,  69. 
2  Pick.  204.                                     2  Allen,  466 


the  defendant  intrusted 
a  person  summoned  as 
,  be  attached  and  held 
been  attached  upon  an 

G.  S.  142,  §  21. 


5  Pick.  28,  178. 

8  Pick.  298. 

9  Pick.  435.  562. 
14  Pick.  550. 

16  Pick.  41. 
18  Pick.  451. 
20  Pick.  352. 
12  Met.  397. 
1  Cush.  490. 

4  Cush.  314. 
7  Cush.  487. 
6Gray,  116,  320. 

5  Gray,  229. 


3  Allen,  161. 

6  Allen,  572. 

9  AUen,  570. 

14  Allen,  15,  353. 

97  Mass.  302. 

100  Mass.  124,  239. 

103  Mass.  396,  410. 

104  Mass.  164. 
113  Mass.  380. 
116  Mass.  308. 

120  Mass.  86. 

121  Mass.  380,  422. 

122  Mass.  296, 


124  Mass. 

129  Mass. 

130  Mass. 
132  Mass. 
134  Mass. 

149  Mass. 

150  Mass. 

151  Mass. 

152  Mass. 

153  Mass. 
161  Mass. 
172  Mass. 
174  Mass. 
183  Mass. 
190  Mass. 
206  Mass. 
211  Mass. 
220  Mass. 


98.  366. 

577. 

86. 

56. 

271. 

167. 

234. 

601. 

64. 

14. 

287. 

132. 

208. 

455. 

219. 

373. 

146. 

285. 


Chap.  246.]  trustee  process.  2593 

1  Section  21.     Debts,  legacies,  goods,  effects  or  credits  due  from  or  in  Liability  of 

2  the  hands  of  an  executor  or  administrator  as  such  may  be  attached  in  asTrua'tee's!' '"' 

3  his  hands  by  trustee  process.  k.  s.  io9,  §  62. 

G.  S.  142,  §  22.  1  Met.  476.  7  Gush.  406.  136  Mass.  501. 

P.  S.  183.  §  22.  3  Met.  S07.  2  Gray,  251.  150  Mass.  234. 

R.  L.  189,  §  20.  4  Met.  486.  6  .Mle'n.  397.  151  Mass.  501. 

19  Pick.  354.  10  Met.  459.  104  Mass.  275.  218  Mass.  360. 

20  Pick.  563.  2  Gush.  111.  122  Mass.  296.  225  Mass.  432. 


1       Section  22.     After  a  dividend  on  the  estate  of  an  insolvent  debtor  has  Liability  t 

trustee  of 
assignee  in 


2  been  declared,  it  may,  unless  it  is  upon  a  claim  for  wages  which  would  '""'''■'' °^ 


3  have  been  exempt  from  attachment  by  trustee  process  in  the  hands  of  the  is58)^4o''^' 

4  insolvent  debtor,  be  so  attached  in  the  hands  of  the  assignee.  °-  ^-  ^*^'  ^  ^^■ 

p.  S.  183,  §  23.  R.  L.  189,  §  21.  6  Gush.  558. 

1  Section  23.     Funds,  credits  or  dividends  due  from  or  in  the  hands  Liability  of 

2  of  receivers  appointed  by  a  court  may  be  so  attached  after  an  order  has  issirias. 

3  been  made  for  their  distribution. 

p.  S.  183,  I  24.  R.  L.  189,  §22.  115  Mass.  67.  119  Mass.  155. 

1  Section  24.    Money  or  any  other  thing  due  to  the  defendant  abso-  Attachment 

2  lutely  and  without  any  contingency  may  be  so  attached  before  it  has  due"but  not*"" 

3  become  payable,  but  the  trustee  shall  not  be  compelled  to  pay  or  deliver  g^^s^^'iog.  §  34. 

4  it  before  the  time  appointed  by  the  contract. 

G.  S.  142,  §  24.  R.  L.  189,  §  23.  99  Mass.  550.  149  Mass.  167.  _ 

P.  S.  183,  125.  4Met.  1.  131  Mass.  363.  183  Mass.  455. 

1  Section  25.     A  person  summoned  as  trustee  having  goods,  effects  Trustee 

2  or  credits  of  the  defendant  in  his  possession  by  a  conveyance  or  title  coSvlyance' 

3  void  as  to  the  creditors  of  the  defendant  may  be  adjudged  a  trustee,  fmudSient. 

4  although  the  defendant  could  not  maintain  an  action  therefor  against  §:  i:  142!  1 25! 

5  him.  p.  s.  183,  §  26. 

R.  L.  189,  §  24.  151  Mass.  501.  172  Mass.  132.  190  Mass.  219. 

1  Section  26.     A  trustee  may  retain  or  deduct  from  the  goods,  effects  Mutual  de- 

2  or  credits  in  his  hands  all  demands  against  the  defendant  of  which,  had  dSendant  Tud" 

3  he  not  been  summoned  as  a  trustee,  he  could  have  a^'ailed  himself  by  way  r"s."69, 

4  of  set-off  on  a  trial  or  by  the  set-off  of  judgments  or  executions  between  }^  ^\ll\ 

5  himself  and  the  defendant,  and  he  shall  be  liable  for  the  balance  only  p^|®i|3|,7 

6  after  all  mutual  demands,  excluding  therefrom  any  claim  on  either  side  R  l.  isg.  1 25. 

7  for  unliquidated  damages  for  wrongs  or  injuries,  between  him  and  the  7Pick.'^i66'. 

8  defendant  have  been  adjusted.  19  Pick.  20.  5  Met.  263. 

12  Met.  567.  122  Mass.  296.  149  Mass.  14.  215  Mass.  403. 

7  Gray,  153.  132  Mass.  56,  427.  213  Mass.  384.  233  Mass.  32. 


2  he  has  knowledge  thereof,  he  makes  any  payment  in  good  faith  or  be-  Lyn 

3  comes  liable  to  a  third  person  by  reason  of  the  goods,  effects  or  credits  ^n^"^ 


1       Section  27.     If,  after  the  service  of  process  on  the  trustee,  but  before  Trustee  not 

chargeable  for 
ayment 
efore 

knowledge  of 

4  in  his  hands,  or  delivers  such  goods,  effects  or  credits  to  the  defendant  or  i"g"o9  §  s 

5  to  any  other  person  who  may  be  entitled  thereto,  he  shall  be  allowed  there-  p  |- 14|.  |  ^^■ 

6  for  in  the  same  manner  as  if  the  pavment  or  delivery  had  been  made,  or  R  l  189.  §  26. 

7  as  if  the  liability  had  been  incurred,  before  the  service  of  the  writ.  s  Cush.  544. 

4  Allen.  485.  132  Mass.  56.  204  Mass.  55. 

98  Mass.  142.  156  Mass.  1. 

1  Section  28.     If  wages  for  personal  labor  and  services  of  a  defendant  J^'^^^^  '"h  "' 

2  are  attached  for  a  debt  or  claim,  other  than  for  necessaries  furnished  to  ment,  when. 

3  him  or  to  his  family,  an  amount  not  exceeding  twenty  dollars  shall  be  re-  isss!  sob,  §  2. 


2594 


TRUSTEE   PROCESS. 


[Chap.  246. 


1S57 

200,  §  2. 

G.S. 

142.  §  29. 

1878 

260,  §  3. 

P.  S. 

183.  §  30. 

1900 

191. 

IR.  L 

189.  §  27 

14  G 

ray,  487. 

S  Allen,  210. 

6  AUen,  572. 

Tender  and 

offer 

of 

judgment. 

1878 

260, 

5§4. 

5. 

P.S. 

183,  §  31. 

R.  L 

189,  §  28 

served  in  the  hands  of  the  trustee  and  shall  be  exempt  from  such  attach-  4 

ment.    If  such  wages  are  attached  on  a  claim  for  such  fiecessaries  and  5 

the  MTit  contains  a  statement  to  that  effect,  an  amount  not  exceeding  ten  6 

dollars  shall  be  so  reserved ;  but  if  the  writ  contains  no  such  statement,  7 

an  amoimt  not  exceeding  twenty  dollars  shall  be  so  reserved.  8 

7  Allen.  264.  9  Allen,  106.  142  Mass.  447.  160  Mass.  32. 

Section  29.     If,  after  wages  for  personal  labor  or  services  have  been  1 

attached  and  before  the  entry  of  the  wTit,  the  defendant  tenders  to  the  2 

plaintiff  or  to  his  attorney  the  full  amount  due  and  recoverable  in  the  3 

action  and  the  fees  of  the  officer  for  serving  the  MTit,  the  plaintiif  shall  4 

recover  no  costs,  except  the  fees  of  the  officer;   and  if  the  defendant  is  5 

defaulted  without  an  appearance  or  if  he  files  an  offer  of  judgment  on  6 

the  return  day  of  the  writ  under  section  seventy-four  of  chapter  two  7 

hundred  and  tliirty-one,  and  the  plaintiff  accepts  such  offer  or  fails  to  8 

secure  more  than  the  amount  thereof  and  of  the  interest  thereon  from  9 

its  date,  the  plaintiff  shall  recover  no  costs,  except  the  entry  fee  and  10 

the  officer's  fees.  1 1 


Penalty  for 
attaching 
wages  exempt 
from  attach- 
ment. 

1878,  260,  §  2. 
P.  S.  183.  §  32. 
Tl.  L.  189,  §  29. 


Section  30.     'WTioever  wilfully  causes,  or  aids  and  abets  in  causing,  1 

wages  for  personal  services  exempt  from  attachment  to  be  attached  by  2 

trustee  process  in  order  to  unlawfully  hinder  or  delay  their  pajTnent  to  3 

the  person  to  whom  they  belong  shall,  on  complaint  of  the  person  injured  4 

thereby  or  of  the  guardian  or  other  person  having  the  lawful  custody  of  5 

any  such  person  incompetent  to  act,  be  punished  by  a  fine  of  not  more  6 

than  fifty  dollars,  to  the  use  of  the  person  injured  thereby.  7 


Bond  by 
plaintiff  to 
indemnify 
savings  bank. 
1850,  48. 
G.  S.  142.  §  30. 
P.  S.  183,  §  33. 
R.  L.  189,  §  30. 
164  Mass.  124. 


Section  31.     If  a  sa\'ings  bank  is  charged  as  trustee,  and  the  court  1 

finds  that  the  answer  creates  a  doubt  as  to  the  identity  of  the  defendant,  2 

it  may  require  the  plaintiff  to  give  bond,  with  surety  approved  by  the  3 

court,  conditioned  to  indemnify  such  bank  from  any  loss  by  reason  of  4 

pajTnent  by  it  pursuant  to  the  court's  order.  5 


Claims  not 
attachable  by 
trustee  process. 
1794,65,  §  12. 
R.  S.  109, 
1842,91. 
G.  S.  142, 
§§  29,  31. 


i  30. 


3  Mass.  289. 

4  Met.  486. 

6  Cush.  558. 

7  Cush.  257. 


Section  32.    No  person  shall  be  adjudged  a  trustee  in  the  following  1 

cases :  2 

First,  By  reason  of  having  drawn,  accepted,  made  or  endorsed  a  nego-  3 

tiable  bill,  draft,  note  or  other  security  payable  on  time  and  not  overdue.  4 

1868,  95.  1890,  289.  20  Pick.  132. 

P.S.  183,  5§  29,34. 


1886.  194. 


R.  L.  189,  §  31. 
2  Mass.  375,  524. 


22  Pick.  S3. 
151  Mass.  383. 


Second,  By  reason  of  having  received  or  collected  money  or  any  other 
thing  as  a  sheriff  or  other  officer  upon  an  execution  or  other  legal  process 
in  favor  of  the  defendant  in  the  trustee  process,  although  it  may  have  been 
demanded  of  him  by  the  defendant. 

Third,  By  reason  of  having  money  in  his  hands  as  a  public  officer,  for 
which  he  is  accountable  to  the  defendant  merely  as  such  officer. 


14  Gray,  220. 
5  AUen,  94. 


130  Mass.  86. 
153  Mass.  14. 


218  Mass.  360. 
230  Mass.  475. 


5 
6 
7 
8 
9 
10 


I  Mass.  471. 

3  Mass.  33.  68. 

4  Mass.  235. 

II  Mass.  488. 
16  Mass.  341. 


Fourth,  By  reason  of  money  or  any  other  thing  due  from  him  to  the  11 
defendant,  unless  it  is,  at  the  time  of  service  of  the  writ  upon  him,  due  12 
absolutely  and  without  any  contingency.  5  Pick.  28.  6  Pick.  120.  13 


11  Pick.  473. 

12  Pick.  22. 
2  Met.  352. 
4  Met.  486. 
12  Met.  12. 
6  Cush.  264. 


7  Gray,  153. 

13  Gray.  200. 

15  Gray,  532. 

1  Allen,  394. 

99  Mass.  187. 

117  Mass.  238,  551. 


124  Mass.  98. 
128  Mass.  188. 
131  Mass.  363. 
135  Mass.  397. 
147  Mass.  287. 
157  Mass.  565. 


Chap.  246:]  trustee  process.  2595 

14  Fifth,  By  reason  of  a  debt  due  from  him  upon  a  judgment,  so  long  as  2  Mass.  91. 

15  he  is  liable  to  an  execution  thereon.  is  Gray,  532.  9  Alien,  S70.  *  '^^''^^'  '^^' 

16  Sixth,  By  reason  of  money  or  credits  due  for  the  wages  of  personal 

17  labor  or  services  of  the  wife  or  minor  children  of  the  defendant. 

18  Seventh,  By  reason  of  money  or  credits  due  or  accruing  to  the  de-  132  Mass  sp. 

19  fendant  as  wages  or  lay  as  a  seaman;  but  this  clause  shall  not  apply  to         "^^^  ''' 
20. the  wages  or  lay  due  or  accruing  to  a  fisherman. 

ADVERSE   CLAIM.ANTS. 

1  Section  33.     If  a  person  claiming,  by  assignment  from  the  defendant  Proceedings 

2  or  otherwise,  goods,  effects  or  credits  in  the  hands  of  a  supposed  trustee  claimed  by 

3  enters  an  appearance,  he  shall  be  admitted  as  a  party  in  order  to  de-  isT?,  iIs'T  i- 

4  termine  his  title  to  such  goods,  effects  or  credits,  and  may  allege  and  f§?7-?9.' 

5  prove  any  facts  which  have  not  been  stated  or  denied  by  the  supposed  J? ^|-  /°J'  ^  ^^• 

6  trustee.    Such  allegations  shall  be  tried  and  determined  as  provided  in  p^g^gg 

7  section  seventeen  upon  depositions  or  oral  testimony  as  the  court  orders.  |§  ^^-s?! 

8  If  he  does  not  voluntarily  enter  an  appearance,  the  court  may  issue  an  i  ^Iass.  iio. 

9  order  of  notice  to  him.  s  Pick.  470.  24  pick.  204. 

3  Met.  297.  6  Allen.  582.  124  Mass.  453.  142  Mass.  366. 

10  Met.  ISO.  14  Allen,  353.  125  Mass.  475.  143  Mass.  226. 
7  Cush.  4S3.  105  Mass.  111.  126  Mass.  535.  147  Mass.  287. 

11  Gush.  470.  Ill  Mass.  281,  127  Mass.  34.  162  Mass  524,  562. 
S  Gray,  49.  506.  532.  130  Mass.  316.  183  Mass.  455. 

7  Gray,  546.  113  Mass.  382.  132  Mass.  161,  277.  189  Mass.  296. 

11  Gray,  37,  225.  US  Mass.  406.  133  Mass.  543.  194  Mass.  398. 

2  Allen,  541.  123  Mass.  35S.  137  Mass.  339.  212  Mass.  108. 

1  Section  34.     If  it  appears  that  the  claimant  holds  a  valid  assign-  Proceedings 

2  ment  from  the  principal  defendant  only  as  security  for  a  debt,  the  court  nfe'^i'tby'^" 

3  shall,  at  the  request  of  the  plaintiff,  ascertain  and  determine  the  amount  gecurityYor 

4  due  upon  such  debt  at  the  time  of  service  of  the  writ  upon  the  trustee,  ^ew. 

r  1      I  1    •  Till  -1  1  'PI  1865, 43,  §  1. 

5  and  the  claimant  shall  have  ludgment  and  execution  tor  the  amount  so  p-  f'-  iss,  §  38. 

1 SSS    S4  5 

6  found  to  be  due  him  and  for  his  costs;  and  after  said  judgment  and  exe-  R  "l!  i89,  §  33. 

7  cution  have  been  sati-sfied,  the  residue,  if  any,  of  the  goods,  effects  or  i^MaSaee! 

8  credits  in  the  hands  of  the  trustee  shall  be  subject  to  the  attachment  in 

9  the  trustee  process.    If  judgment  by  default  has  been  rendered  against  the 

10  trustee  and  it  appears  that  he  has  paid  over,  upon  execution  issued  on  the 

1 1  original  judgment,  any  part  of  the  goods,  effects  or  credits  in  his  hands 

12  liable  to  attachment,  he  shall  be  liable  to  the  adverse  claimant  only  for 

13  the  residue  in  his  hands. 

PROCEEDINGS    IF   ACTION    PENDING   AGAINST   TRUSTEE. 

1  Section  35.     If,  while  an  action  is  pending,  the  defendant  is  sum-  ProcecdinEs  if 

2  moned  in  another  action  as  trustee  of  the  plaintiff,  the  earlier  action  may  by  defeSnt^ 

3  proceed  so  far  as  to  ascertain  by  a  verdict,  award  or  otherwise  the  amount  ji^^fog^"^"^' 

4  due  from  the  defendant,  and  it  shall  not  be  delayed  on  account  of  the  ^^  |''i4o 

5  trustee  process,  unless  the  court  continues  it  for  judgment  until  the  ter-  Ps^'43'540 

6  mination  of  the  trustee  process  or  until  the  attachment  therein  is  dis-  R-  l.  iss',  §  35. 

7  solved  by  the  discharge  of  the  trustee,  by  the  satisfaction  of  the  judgment  97  Mass."i67. 

8  or  otherwise.    The  court  may,  upon  application  of  the  plaintiff  in  the  132  mSs^s?;: 

9  trustee  process,  so  continue  such  pending  action  upon  terms.  ^®^  ^'^^'  "'^" 

1  Section  36.     If  the  action  is  not  so  continued  and  judgment  is  ren-  Judgment 

2  dered  against  the  defendant,  he  shall  not  afterward,  while  liable  to  an  chafgea'Lle  as 

3  execution  thereon,  be  adjudged  a  trustee  on  account  of  the  demand  so  k"s.''io9,^''32. 

4  recovered  against  him.         g.  s.  142,  §  19.         p.  s.  i83,  §  41.      r.  l.  iso,  §  36. 


2596 


TRUSTEE   PROCESS. 


[Chap.  246. 


Proceedings 
if  defendant  in 
pending  action 
is  adjudged 
trustee  of 
plaintiff. 
K.  S.  109,  §  33. 
G.  S.  142.  §  20. 
P.  S.  183,  §  42. 
R.  L.  189.  5  37. 
7  Mass.  149. 


Section  37.  If,  before  final  judgment  in  such  pending  action,  the 
defendant  therein  is  adjudged  a  trustee  in  the  trustee  process,  and  pays 
thereon  the  money  demanded  in  the  pending  action,  or  any  part  thereof, 
such  fact  shall  be  stated  on  the  record  of  the  action,  and  judgment  therein 
shall  be  rendered  for  the  costs  due  to  the  plaintiff  and  for  the  part  of  the 
debt  or  damages  remaining  due  and  unpaid. 

119  Mass.  163.  125  Mass.  319. 


Proceedings 
if  defendant 


Section  38.     If,  while  an  action  is  pending,  the  plaintiff  is  summoned  1 

Mndinrac^foiT  ^^  trustcc  of  the  defendant  on  account  of  a  demand  filed  in  set-ofl^  therein,  2 

such  pending  action  shall  be  subject  to  the  three  preceding  sections  in  the  3 

same  manner  and  with  the  same  effect  as  if  it  were  an  action  brought  4 

upon  such  demand  in  set-off  by  the  defendant  against  the  plaintiff".  5 


pending  action 
by  trustee. 
1865.  155. 
P.  S.  183,  §  43. 
R.  L.  189,  §  38, 


Form  of  judg- 
ment charging 
trustee. 
R.  S.  109,  §  42. 


JUDGMENT   AND   EXECUTION. 

Section  39.     If  a  person  is  adjudged  a  trustee,  the  amount  for  which     1 
he  is  chargeable  need  not  be  specified  in  the  judgment.      g.  s.  142,  §  32.  2 


P.S.  183,  §  44. 
R.  L.  189,  §  39. 


11  Gray,  19. 
2  Allen,  566. 


136  Mass.  407. 
225  Mass.  432. 


Further  at- 
tachment of 
goods,  when. 
R.  S.  109, 
§§43,44. 
G.  S.  142, 
§§  33,  34. 
P.  S.  183,  §  45. 
R.  L.  189,  §  40. 
6  Gray,  241. 
186  Mass.  574. 


Section  40.  If  the  goods,  effects  and  credits  in  the  hands  of  a  per- 
son adjudged  a  trustee  are  not  demanded  of  him  by  force  of  the  execution 
within  thirty  days  after  final  judgment,  they  shall  be  liable  to  another 
attachment,  whether  made  before  or  after  the  judgment;  or  if  there 
has  been  no  such  second  attachment,  they  may  be  recovered  by  the 
defendant.  236  Mass.  93.  Op.  a.  g.  (1920)  93. 


Liability  of 
trustee  after 
thirty  days, 
when. 

R.  S.  109,  §45. 
G.S.  142,  §  35. 
P.  S.  183,  §  46. 
R.  L.  189,  §41. 
6  Gray,  241. 
186  Mass.  574. 
236  Mass.  93. 


Section  41.  If  no  such  second  attachment  of  the  goods,  effects  and 
credits  has  been  made,  and  no  action  has  been  brought  therefor  by  the 
defendant,  and  if  they  have  not  been  paid  or  delivered  to  the  defendant 
before  they  are  demanded  of  the  trustee  by  the  officer,  the  trustee  shall 
be  liable  to  pay  and  deliver  the  same,  when  so  demanded,  although  said 
thirty  days  have  expired. 


Demand  on 
absent  trustee. 
R.  S.  109,  §  46. 
G.  S.  142,  §  36. 
P.  S.  183.  §  47. 
R.  L.  189,  §  42. 
173  Mass.  439. 


Section  42.     If  the  trustee  cannot  be  found  in  the  commonwealth  1 

by  the  officer  to  whom  the  execution  is  committed  for  service,  a  copy  of  2 

the  execution  left  at  his  dwelling  house  or  at  his  last  and  usual  place  of  3 

abode,  with  a  notice  to  him,  endorsed  thereon  and  signed  by  the  officer,  4 

that  he  is  required  to  pay  and  deliver,  toward  satisfying  the  execution,  5 

the  goods,  effects  and  credits  for  which  he  is  liable  shall  be  a  sufficient  6 

demand  for  the  purposes  of  the  two  preceding  sections.  7 


Effect  of 
judgment 
against  trustee. 
1708-9,  7.  §  6. 
1728-9,3,  §  6. 
1748-9, 6. 
1758-9,  10,  5  7. 


Section  43.  The  judgment  against  a  trustee  shall  acquit  and  dis- 
charge him  from  all  demands  by  the  defendant,  his  executor  or  adminis- 
trator, for  all  goods,  effects  and  credits  paid,  delivered  or  accounted  for 
by  the  trustee  by  force  of  such  judgment. 


R.S.  109,  §47. 
G.  S.  142,  I  37. 
P.  S.  183,  §  48. 
R.  L.  189,  §  43. 
4  Met.  1. 


6  Gray,  568. 

7  Gray,  269,  505. 

13  Gray,  51. 

14  Gray,  487. 
1  Allen,  286. 


2  Allen,  123. 

99  Mass.  530. 

100  Mass.  453. 

104  Mass.  104. 

105  Mass.  340. 


1794,  65,  §  8. 

Ill  Mass.  213. 
116  Mass.  210,  308. 
129  Mass.  322. 
131  Mass.  518. 
183  Mass.  455. 


Discharge  of 
trustee  no  bar 
to  action  by 
defendant. 
R.  S.  109,  §  48. 


Section  44.     If  a  person  summoned  as  trustee .  is  discharged,  the  1 

judgment  shall  be  no  bar  to  an  action  brought  against  him  by  the  defend-  2 

ant  for  the  same  demand.  3 

G.S.  142,  §38.  P.S.  183,  §49.  R.  L.  189,  §  44. 


Chap.  246.]  trustee  process.  2597 


SCIRE   FACIAS   AGAINST  TRUSTEE. 

1  Section  45.     If  a  person  adjudged  a  trustee  does  not,  upon  demand,  ^''^'^nlt"''"' 

2  pay  over  to  the  officer  goods,  effects  or  credits  sufficient  to  satisfy  the  trustee. 

3  execution  and  if  the  execution  is  not  otherwise  satisfied,  the  plaintiff  may  1728-9!  3.  §  3. 

4  sue  out  from  the  court  where  the  judgment  was  rendered  a  writ  of  scire  1-58^9!  10,  §  5. 

5  facias  against  him  or  all,  or  a  separate  writ  against  each,  of  the  trus-  §§^5,'6.^' 

6  tees,  to  show  cause  why  judgment  and  execution  should  not  be  awarded  |§  fj ^gj ■ 

7  against  them  or  him  and  their  or  his  own  goods  and  estate  for  the  amount  P,  fg'H' 

8  remaining  unsatisfied  on  the  judgment  against  the  defendant.     Such  p^^'^i'P'.^i'; 

9  writ  may  be  issued  by  the  court  where  the  judgment  was  rendered,  al-  r.  l.is9.§45. 
10  though  the  amount  of  the  debt  and  costs  therein  exceeds  its  jurisdiction.  21  Pick!'io9.' 

4  Cush.  420.  99  Mass.  530.  151  Mass.  17.  228  Mass.  84. 

9  Cush.  289.  122  Mass.  64.  186  Mass.  574.  229  Mass.  316. 
2  Allen,  566.                     135  Mass.  397.                 206  Mass.  408.  233  Mass.  481. 

1  Section  46.     If  a  trustee,  duly  served  with  the  scire  facias,  neglects  Proceedings 

2  to  appear  and  answer,  he  shall  be  defaulted;   and  if  he  did  not  answer,  "ftnisfeeon 

3  and  was  not  examined  in  the  original  action,  judgment  shall  be  rendered  lyos-'grT!^?  s. 

4  against  him  upon  such  default  for  the  whole  amount  remaining  unsatis-  Jyfllg'  g  ^  ^^■ 

5  fied  on  the  judgment  against  the  defendant.  i-5s-9,  lo,  §  5. 

1794,  65,  §7.  G.  S.  142,  §40.  R.  L.  189,  5  4G. 

R.  S.  109,  §  39.  P.  S.  183,  §  51.  151  Mass.  17. 

1  Section  47.     If  a  trustee  defaulted  on  the  scire  facias  has  been  ex-  Same  subject. 

2  amined,  or  has  answered  and  not  been  examined,  in  the  original  action,  g's;i42!|4i! 

3  judgment  in  the  scire  facias  shall  be  rendered  upon  the  facts  stated  upon  r.  L.mltl'. 

4  such  examination  or  in  such  answer,  respectively,  for  any  part  remaining  '^®  '^'''^^-  ^®^- 

5  in  his  hands  of  the  goods,  effects  or  credits  for  which  he  was  chargeable 

6  as  trustee,  or  for  so  much  thereof  as  is  necessary  to  satisfy  the  amount 

7  then  remaining  due  on  the  original  judgment. 

1  Section  48.     If  the  trustee  appears  and  answers  to  the  scire  facias,  he  Proceedings 

2  may  be  examined  therein;   but  if  he  has  been  examined  in  the  original  aS?°o/""""^" 

3  action,  he  shall  be  examined  anew  only  by  order  of  the  court.    He  may  1794*^65,  §  e. 

4  prove  any  matter  necessary  or  proper  for  his  defence  on  the  scire  facias,  f^  fi,^42' 

5  A  judffment  against  a  trustee  on  scire  facias  shall  express  the  amount  P.-  fj"!' 

6  for  which  he  is  chargeable.  p.  s.  i83,  §  53. 

R.  L.  189,  §  48.  9  Allen,  90.  149  Mass.  49.  186  Mass.  674. 

1  Met,  426.  Ill  Mass.  154.  156  Mass.  1.  193  Mass,  479. 

4  Cush.  431.  116  Mass.  299.  161  Mass.  287.  213  Mass.  3S4. 

10  Gray,  164,  371.  134  Mass.  232.  173  Mass.  439.  229  Mass.  316. 

1       Section  49.     A  writ  of  scire  facias  shall  not  be  maintained  against  Limitation  of 

_  ....  ,  ,  .....  °  action  on  scire 

Z  a  person  adjudged  a  trustee,  unless  served  upon  him  witliin  two  years  facias. 

3  after  judgment  in  the  original  action;  or  if  the  money  or  other  thing  is  g.s.'i42,  §43. 

4  not  payable  when  the  judgment  is  rendered,  unless  so  served  within  orife  r.  l.\*s9,  §  49. 

5  year  after  such  money  or  other  thing  becomes  payable. 

4  Gray,  343. 
DE.\,TH   OF   PARTIES. 

1  Section  50.     If  a  person  summoned  as  trustee  in  his  own  right  dies  Death  ot  tms- 

2  before  the  judgment  recovered  by  the  plaintiff  has  been  fully  satisfied,  j-udgme°nt, 

3  the  goods,  effects  and  credits  in  his  hands  at  the  time  of  the  attachment  q  |;  \°l[  1 44; 

4  shall  remain  bound  thereby,  and  his  executor  or  administrator  shall  be  j^-  ^  ^^^g  \^|g 

5  liable  therefor  as  if  the  writ  were  originally  served  on  him. 


2598 


TRUSTEE   PROCESS. 


[Chap.  246. 


fTM^M^rii.  Section  51.  If  a  person  so  summoned  dies  before  judgment  in  the 
c'.  s.  142,'  1 45.'  original  action,  his  executor  or  administrator  may  appear  voluntarily 
R  L  iII'Im'  °^  ™^y  ^^  cited  to  appear,  as  in  other  cases.  The  further  proceedings 
shall  then  be  conducted  in  the  same  manner  as  if  the  executor  or  adminis- 
trator had  been  originally  summoned  as  trustee,  except  that  the  examina- 
tion of  the  deceased,  if  any  has  been  filed,  shall  have  the  same  effect  as 
if  he  were  living. 


Same  subject. 
R.  S.  109, 
§§  65,  66. 
G.  S.  142, 
i§  46,  47. 
P.  S.  1S3, 
H  57,  58. 
R.  L.  1S9,  §  52. 
149  Mass.  49. 


Section  52.     If  the  executor  or  administrator  does  not  appear,  the  1 

plaintiff,  instead  of  suggesting  the  death  of  the  trustee,  may  take  judg-  2 

ment  against  him  by  default  or  otherwise  as  if  he  were  living,  and  the  3 

executor  or  administrator  shall  pay  upon  the  execution  the  amount  4 

which  the  deceased  would  have  been  liable  to  pay  to  the  defendant,  and  5 

shall  be  thereby  discharged  for  the  amount  so  paid.     If  he  does  not  6 

voluntarily  pay  the  amount  in  his  hands,  the  plaintiff  may  proceed  7 

against  him  bv  scire  facias.  S 


Death  of  trus- 
tee after  judg- 
ment. 

1794,  65.  §  11. 
R.  S.  109,  §  67. 
G.  S.  142,  §  48. 
P.  S.  183,  §  59. 
R.  L.  189.  §  S3. 
15  Mass.  473. 


Section  53.  If  a  person  summoned  as  trustee  dies  after  judgment  in 
the  original  action,  his  executor  or  administrator  may  pay  upon  the  exe- 
cution the  amount  which  the  deceased  would  have  been  liable  to  pay 
were  he  living,  and  he  shall  be  discharged  from  all  further  demands  on 
account  thereof  in  the  manner  before  mentioned.  If  he  refuses  to  make 
such  payment,  the  plaintiff  may  proceed  against  him  by  scire  facias. 


R^s^m  r68.       Section  54.     If  a  person,  against  Mhom  as  trustee  execution  has  been  1 

pfill'leo"  issued,  is  not  living  at  the  expiration  of  thirty  days  after  final  judgment  2 

R.  L.  189,  §  54.  in  the  trustee  process,  a  demand,  for  the  purpose  of  holding  the  attach-  3 

ment,  may  be  made  upon  the  executor  or  administrator  of  such  deceased  4 

person  within  thirty  days  after  his  appointment,  and  shall  have  the  5 

same  effect  as  if  made  within  thirty  days  after  the  judgment.  6 


Service  of 
execution  when 
executor  or 
administrator 
is  adjudged 
trustee. 

R.  S.  109.  §  69. 
G.  S.  142,  §  50. 
P.  S.  183,  I  61. 


PROCEEDINGS  IF  AN  EXECUTOR  IS  CHARGED  AS  TRUSTEE. 

Section  55.  If  an  executor  or  administrator  as  such  is  adjudged  a 
trustee,  the  execution  shall  not  be  served  on  his  own  goods  or  estate  nor 
on  his  person,  and  he  shall  be  liable  for  the  amount  in  his  hands  only  in 
like  manner  and  to  the  same  extent  as  he  would  have  been  liable  to  the 
defendant  if  there  had  been  no  trustee  process.  R.  l.  is9,  §  55. 


•Remedy 
against  execu- 
tor failing  to 
pay  amount  for 
which  he  is 
charged. 
R.  S.  109,  §  70. 
G.  S.  142,  §  51. 
P.  S.  183,  §  62. 
R.  L.  189,  §  56. 
225  Mass.  432. 


Section  56.     If,  after  final  judgment  against  an  executor  or  adminis-  1 

trator  for  a  sum  certain  due  from  him  as  trustee,  he  fails  to  pay  the  same,  2 

t]ie  original  plaintiff  in  the  trustee  process  shall  have  the  same  remedy  for  3 

recovering  the  amount,  either  upon  a  suggestion  of  waste  or  by  a  suit  on  4 

the  administration  bond,  as  the  defendant  in  the  trustee  process  would  5 

have  had  upon  a  judgment  recovered  by  himself  for  the  same  demand  6 

against  the  executor  or  administrator.  7 


Proceedings 
if  trustee  is 
charged  for 
specific  prop- 
erty. 


PROCEEDINGS  IF  TRUSTEE  H.\S  SPECIFIC   PROPERTY. 

Section  57.  If  a  person  is  charged  as  trustee  by  reason  of  personal 
property  other  than  money,  which  he  holds  or  is  bound  to  deliver  to 
the  defendant,  he  shall  deliver  it,  or  so  much  thereof  as  may  be  neces- 


Chap.  246.]  trustee  process.  2599 


10. 
22. 


4  sary,  to  the  officer  holding  the  e.xecution,  who  shall  sell  the  property  and  ^^*-  ^^^  §j 

5  apply  and  account  for  the  proceeds  in  the  same  manner  as  if  the  property  g.|.  m,  §  52. 

6  had  been  taken  on  execution. 

R.  L.  1S9,  §  57.  7  Cush.  487.  104  Mass.  164. 

1  Section  58.     The  value  of  any  property  so  delivered  shall  be  ascer-  Same  subject. 

2  tained  and  fi.xed,  as  between  the  trustee  and  defendant,  in  like  manner  r.  s.'  109.  §  23. 

3  and  upon  the  same  principles  as  if  delivered  to  the  defendant.     Upon  p.'s.i83.'|64.' 

4  the  application  of  either  party,  the  court  may,  pending  the  original  fcjjy;  sfg'  ^  ^^• 

5  action  or  upon  the  scire  facias,  determine  the  value,  and  make  any  other  ^  ^''"^''-  ^°- 

6  order  relative  to  such  property  and  to  the  delivery  thereof  necessary  or 

7  proper  to  protect  the  rights  of  the  trustee  and  of  the  defendant. 

1  Section  59.     If  a  person  summoned  as  trustee  is  bound  bv  contract  Delivery  by 

...  .^  iiri  ■■"11  trustee  of  spe- 

2  to  deliver  specinc  property  to  the  detendant  at  a  certain  time  and  place  c.fic  property 

3  within  the  commonwealth,  he  shall  not  be  required  by  reason  of  the  ?oMract^ 

4  trustee  process  to  deliver  it  at  any  other  time  or  place;   and  he  may,  G!s:i42i§54! 

5  notwithstanding  such  process,  tender  or  deliver  it  to  the  person  entitled  r.l.^^Io.Vm. 

6  thereto  under  the  contract  at  the  time  and  place  therein  mentioned,  gQ^^y  ff^ 

7  unless  he  has  been  preyiously  adjudged  a  trustee  on  account  thereof.  iw  Mass.  164. 

187  Mass.  596.  211  Mass.  146. 

1  Section  60.     If  the  court  finds  that  property  in  the  hands  of  a  person  Tender  by 

2  summoned  as  trustee  is  mortgaged,  pledged  or  in  any  way  liable  for  the  .?riJount  for 

3  paj'ment  of  a  debt  to  the  person  so  summoned,  it  may  allow  the  attaching  hoid^pVoperty 

4  creditor  to  pay  or  tender  the  amount  due  to  the  trustee,  who  shall  there-  i||9^i24;^§  i. 

5  upon  deliver  the  property,  in  the  manner  before  provided,  to  the  officer  g- 1-  J°|'  1 15- 

6  holding  the  execution. 

p.  S.  1S3,  §  66.  9  Gray,  46.  173  Mass.  439. 

R.  L.  1S9.  §  60.  11  Allen,  354.  188  Mass.  70. 

1  Section  61.     If  the  court  finds  that  the  property  is  held  for  any  Disnosai  if 

2  purpose  other  than  to  secure  the  payment  of  money  and  that  the  con-  purpose  tha" 

3  tract,  condition  or  other  thing  to  be  performed  is  such  that  it  can  be  i||9,"m?^§  i. 

4  performed  by  the  attaching  creditor  without  damage  to  the  other  parties,  g  g  J^l  |  so.' 

5  it  may  make  an  order  for  the  performance  thereof  by  him.    Upon  such  ^  |^  i8|^  §5^|j 
G  performance,  or  upon  a  tender,  the  trustee  shall  deliver  the  property,  in  x  Met.  172. 

7  the  manner  before  provided,  to  the  officer  holding  the  execution. 

1  Section  62.     Property  received  by  an  officer  under  either  of  the  two  Disposal  of 

2  preceding  sections  shall  be  sold  and  disposed  of  as  if  it  had  been  taken  on  office"'^  ^^ 

3  execution,  except  that  from  the  proceeds  of  the  sale  the  officer  shall  r  "1;  109.' 1 27. 

4  repay  to  the  attaching  creditor  the  amount  paid  by  him  to  the  trustee  for  p|i||'||J' 

5  the  redemption  of  the  property,  with  interest  thereon,  or  shall  indemnify  R.  l-  isq,  §  62. 

6  the  creditor  for  any  otlier  act  or  thing  by  him  done  or  performed  pursuant 

7  to  the  order  of  the  court  for  the  redemption  of  the  property. 

1  Section  63.    The  preceding  sections  shall  not  prevent  the  trustee  from  Saie  by  trustee 

2  selling  the  property  in  his  hands  for  payment  of  the  claim  for  which  it  is  hcw  as  semr- 

3  mortgaged,  pledged  or  otherwise  liable  at  any  time  before  the  amount  K^s^'109,  §  28. 

4  due  him  is  paid  or  tendered  as  provided  in  section  si.xty  or  sixty-one,  if  pfigl'lol' 

5  such  sale  would  be  valid  as  between  him  and  the  defendant.  R- l-  is^'  8  ^3. 


2600 


TRUSTEE   PROCESS. 


[Ch.\p.  246. 


Liability  of 
trustee  for 
neglect  to  de- 
liver property 
for  wnich  he  is 
charged. 
1794.  65,  I  6. 


Section  64.     If  a  trustee  refuses  or  neglects  to  deliver  any  property  in  1 

his  iiands  when  lawfully  required  by  the  officer  serving  the  execution,  2 

he  shall,  after  deducting  the  amount  of  any  lien  he  has  on  such  property,  3 

be  liable  to  the  plaintiff  upon  a  scire  facias.  4 

1S29,  124.  §  1.  G.  S.  142,  §  59.  R.  L.  189,  §  64. 


R.  S.  109,  §  29. 


P.  S.  1S3,  §  70. 


173  Mass.  439. 


Liability  of 
carrier  if  pre- 
vented by 
trustee  process 
from  making 
delivery. 
1905,  324. 
206  Mass.  373. 
211  Mass.  146. 
214  Mass.  4G6. 


Section  65.     ^Mien  a  common  carrier,  summoned  as  trustee  in  an  1 

action  at  law,  has  in  his  or  its  possession  goods  shipped  by  or  consigned  2 

to  a  defendant  in  such  action,  such  carrier,  in  the  absence  of  collusion  3 

or  fraud  on  his  or  its  part,  sliall  not,  except  as  other^sise  provided  in  4 

chapter  one  hundred  and  eight,  be  held  liable  to  the  crnier  or  consignee  5 

by  reason  of  his  or  its  failure  to  transport  and  to  deliver  said  goods,  until  6 

the  attachment  is  dissolved  or  the  carrier  is  discharged  as  trustee.  7 


Person  other 
than  defendant 
may  file  bond, 
etc. 

1877,  97. 
§§1,2. 

P.  S.  183,  !  71. 
R.  L.  189,  §  65. 
129  Mass.  589. 
136  Mass.  407. 
156  Mass.  166, 
226  Mass.  14. 


DISSOLUTION   OF  ATTACHMENT   BY  TRUSTEE   PROCESS. 

Section  66.  A  person  having  an  interest  by  assignment  or  other-  1 
wise  in  money  or  credits  attached  by  the  trustee  process  in  an  action  2 
against  another  may,  at  any  time  before  final  judgment,  dissolve  such  3 
attaclunent  or  a  part  thereof  by  giving  bond,  in  a  sum  not  exceeding  the  4 
damages  demanded,  with  sufficient  sureties  to  be  approved  in  writing  by  5 
the  plaintiff  or  his  attorney,  by  a  master  in  chancery  or  by  a  justice  of  a  6 
court,  if  the  attachment  is  made  within  the  jurisdiction  thereof,  con-  7 
ditioned  to  pay  to  the  plaintiff,  within  thirty  days  after  final  judgment  8 
or  after  a  special  judgment  entered  under  section  twenty-five  of  chapter  9 
two  hundred  and  thirty-five,  the  amount  for  which  the  trustee  may  10 
be  charged,  not  exceeding  the  value  of  the  property  in  his  hands,  or  so  11 
much  thereof  as  will  satisfy  the  amount  which  may  be  recovered  by  the  12 
plaintiff.  If  there  are  several  trustees,  such  bonds  may  be  made  to  apply  13 
to  one  or  more.  The  provisions  of  sections  one  hundred  and  twenty-  14 
five  and  one  hunrlred  and  twenty-six  of  chapter  two  hundred  and  15 
twenty-three,  relative  to  notice,  hearing,  fees  and  the  filing  of  the  bond,  16 
shall  apply  to  bonds  given  under  this  section.  17 


Deliverj-  of 
property  by 
trustee.    Lim- 
itation of  action 
on  bond. 
1877,  97.  §  2. 
P.  S.  183.  §  72. 
R.  L.  189,  §  66. 


Costs  of 
trustee. 
1708-9,  7,  I  5. 
1728-9,  3,  §  4. 
1748-9,  6. 
1758-9,  10.  §  3. 
1794,65,  §  3. 
1829,  128,  5  2. 
R.  S.109,  §49. 
G.  S.  142, 
§§  60,  82. 
P.  S.  183,  §  73. 
R.  L.  189,  §  67. 
1917,  326. 


Section  67.  After  the  filing  of  such  bond,  the  trustee  may  deliver  to 
the  person  by  whom  or  in  whose  behalf  as  principal  the  bond  was  given 
the  money  or  other  thing  in  his  hands,  or  that  part  thereof  to  which  the 
bond  applies,  and  shall  not  after  such  delivery  be  liable  to  the  plaintiff 
therefor,  nor  shall  any  execution  therefor  issue  against  him.  No  action  on 
such  bond  shall  be  commenced  after  the  expiration  of  six  years  from  the 
date  thereof. 

COSTS. 

Section  68.  A  person  summoned  as  a  trustee  in  the  supreme  judicial 
or  superior  court,  who  appears  and  answers  pursuant  to  this  chapter, 
shall  be  allowed  his  costs  for  travel  and  term  fees,  and  such  further 
amount  for  counsel  fees  and  other  necessary  expenses  as  the  court  may 
allow;  if  summoned  in  a  district  court,  he  shall  be  allowed  the  costs 
fixed  by  section  twenty-seven  of  chapter  two  hundred  and  sixty-one.  If 
there  has  been  a  trial  between  the  plaintiff  and  the  alleged  trustee  upon 
an  issue  of  fact,  the  court  may  award  costs  to  either  party. 


12  Pick.  407. 
19  Pick.  354. 
12  Met.  397. 

14  Gray,  4.53. 

15  Gray,  70. 


6  Allen,  122. 
10  Allen,  160. 
99  Mass.  501,  551. 
117  Mass.  91. 


123  Mass.  319. 
128  Mass.  20. 
215  Mass.  234. 
224  Mass.  253. 


Ch.\P.   246.]  TRUSTEE   PROCESS.                                                                            2601 

1  Section  69.     If  a  person  is  adjudged  a  trustee,  his  costs  and  charges  Costs  payable 

2  shall  be  deducted  from  the  goods,  effects  and  credits  in  his  hands,  and  he  ^ien.  ^  "''*' 

3  shall  be  chargeable  for  the  balance  only  to  be  paid  on  the  execution.  H^l]  \lf  ^  ^■ 

4  If  such  goods,  effects  and  credits  are  not  of  sufficient  value  to  discharge  §■  |-  \°l'  |  f^^- 

5  the  costs  taxed  in  his  favor,  he  shall  have  judgment  and  execution  against  p-  s.  isa.  §  74. 

6  the  plaintiff  for  the  balance  of  such  costs,  after  deducting  the  amount  loMet.  s's'o. 

7  disclosed,  in  the  same  manner  as  if  he  had  been  discharged. 

11  Gray,  19.  2  Allen,  566.  224  Mass.  253. 

1  Section  70.     If   a  person  summoned  as  trustee  is  discharged,   he  costs  payable 

2  shall  have  judgment  and  execution  for  his  costs  and  charges  against  the  wie''n!"°''  ' 

3  plaintiff. 

170S-9,  7,  §  5.  1758-9.  10,  §  3.  G.  S.  142,  §  62.  3  Cush.  341. 

1728-9,  3,  §4.  1794,  65,  §4.  P.  S.  183,  §  75.  11  Cush.  463. 

1748-9,  6.  R.  S.  109,  §  51.  R.  L.  189.  §  69.  224  Mass.  253. 

1  Section  71.     If  a  person  so  summoned  in  an  action  pending  in  the  Costs  of  person 

2  supreme  judicial  or  superior  court  is  out  of  the  commonwealth  at  the  commonwealth. 

3  time  of  service  of  the  original  writ  upon  Tiim,  and  appears  and  answers  g.s'.  mi  I  es! 

4  within  ten  days  after  his  return,  or  if  he  is  so  summoned  in  an  action  R;i;.\|g.|  70. 

5  pending  in  a  district  court,  and  appears  and  answers  within  three  days  Jo  Ma^ss^'25 

6  after  his  return,  he  shall  be  allowed  his  costs  and  charges. 

1  Section  72.     If  a  person  so  summoned  does  not  dwell  or  have  a  usual  ^°^g^l^„^. 

2  place  of  business  in  the  county  where  the  writ  is  returnable,  he  shall,  moned  out  of 

3  if  he  appears  at  any  time  in  the  original  action  or  upon  a  scire  facias,  l^^^'^s, 

4  be  allowed  his  costs  and  charges,  which  shall  be  retained  or  recovered  as  r.  s.  109,  §  53. 

5  before  provided.  is52, 237. 

G.s.  142,  §64.  P.  S.  1S3,  §77.  R.  L.  189,  §  71.  12  Pick.  529. 

1  Section  73.     A  person  so  summoned,  who  dwells  or  has  a  usual  place  Liability  of 

2  of  business  in  the  county  where  the  writ  is  returnable,  and  who  neglects,  fectfng  to^" 

3  without  sufficient  reason,  to  appear  and  answer  within  the  time  provided,  jBglJ'e^,  §  3. 

4  shall  be  liable,  if  the  plaintiff  recovers  judgment  and  does  not  otherwise  i|g|- 10^'  ^  ^*- 

5  receive  his  costs,  for  all  costs  for  the  plaintiff's  travel  and  term  fees  until  p|ig|'|^|- 

6  he  appears.  R.  l.  iso,  §  72.                       193  Mass.  479. 

1  Section  74.     If  a  person  so  summoned  does  not  pay  the  costs  when  Recovery 

2  demanded  by  the  officer  serving  the  execution,  the  officer  shall  state  the  r.  a^iog,  §  55. 

3  fact  in  his  return,  and  if  it  also  appears  by  the  return  that  the  costs  have  p.' |.' 1  si;  1 79.' 

4  not  been  paid,  the  court  shall  award  a  new  execution  against  him  for  the  ^-  ^- 1*^'  ^  '*■ 

5  costs. 

1  Section  75.     If  several  persons  are  summoned  as  trustees  who  are  Liability  of 

2  liable  for  costs  under  any  provision  of  the  two  preceding  sections,  the  tees  for  pilTn- 

3  second  execution  shall  be  awarded  against  them  jointly ;  and  if  any  one  i%4,'^65,*|  3. 

4  pays  more  than  his  proportion,  the  others  shall  contribute  equally  to  g  |-  J0|'  |  '^5- 

5  indemnify  him  for  the  excess.  p.  s.  is3,  §  so.             r.  l.  iso,  §  74. 

1  Section  76.     If,  while  an  action  by  the  trustee  process  is  pending,  the  costs  in 

2  original  defendant  therein  or  any  other  person  brings  an  action  against  uustee'^"'"^' 

3  the  alleged  trustee  to  recover  the  goods,  effects  or  credits  or  any  part  h.^l!  ilb,  §  75. 

4  thereof  in  his  hands  or  possession,  costs  in  the  later  action  shall  be  in 

5  the  discretion  of  the  court. 


2602 


TRUSTEE   PROCESS. 


[CH.VP.   246. 


Liability  of 
trustee  for 
costs  on  scire 
facias,  wlien. 
1794,  65, 
§§  3,  6. 

R.  S.  109,  §  57. 
G.  S.  142.  §  68. 
P.  S.  183,  §  81. 
R.  L.  189.  §  76. 
1  Pick.  104. 


Section  77.     If  a  person  summoned  as  trustee,  who  dwells  or  has  a  1 

usual  place  of  business  in  the  county  where  the  writ  is  returnable,  is  2 

defaulted  in  the  original  action,  and  if  a  writ  of  scire  facias  issues  against  3 

him,  he  shall  be  liable  out  of  his  own  goods  and  estate  for  all  costs  on  the  4 

scire  facias,  although  he  is  not  adjudged  a  trustee,  except  as  provided  5 

in  the  following  sections.  193  Mass.  479.  6 


Same  subject. 
1794.  65.  §  6. 
R.  S.  109.  §  58. 
G.  S.  142,  §  69. 
P.  S.  183,  §  82. 
R.  L.  189,  §  77. 


Section  78.  He  shall  not  be  liable  for  costs  on  the  scire  facias,  nor 
shall  he  be  entitled  to  recover  costs,  if  the  court  finds  that  he  had  goods, 
effects  or  credits  in  his  hands  liable  to  attachment,  and  has  paid  and 
delivered,  on  the  execution  issued  on  the  original  judgment,  the  full 
amount  thereof. 


Same  subject. 
R.  S.  109.  §  59. 

1851,  233,  §  75. 

1852,  312,  §  5S. 
G.  S.  142,  §  70. 
P.  S.  183,  §  83, 
R.  L.  189,  §  78. 


Section  79.  He  shall  not  be  liable  for  costs  on  the  scire  facias  if  he 
was  prevented  from  appearing  in  the  original  action  by  his  absence  from 
the  commonwealth  or  by  any  other  sufficient  cause,  but  the  court  may 
allow  him  his  costs  as  if  he  had  appeared  in  the  original  action. 


Execution  for 

costs  against 

trustee. 

R.  S.  109,  5  60. 

G.S.  142,  §  71. 

P.  S.  183.  §  84. 

R.  L.  189,  §  79. 


Section  80.  If  a  person  summoned  as  trustee  is  held  liable  to  pay 
from  his  own  estate  the  costs  on  the  scire  facias  as  before  provided,  and  if 
he  is  at  the  same  time  liable  for  the  plaintiff's  costs  in  the  original  action, 
one  execution  shall  be  issued  against  him  for  both  amounts. 


feveraf*''™^*  Section  81.  If  scvcral  trustccs  are  liable  on  the  scire  facias,  and  the 
r"s"^]U09  §  61  plaintiff,  without  sufficient  reason,  sues  out  two  or  more  writs  when  he 
G|i||.||2  might  have  joined  all  the  trustees  in  one  writ,  he  shall  recover  no  more 
R.  L.  189, 1 80.  costs  than  if  he  had  sued  out  one  writ,  and  the  court  may  apportion  the 
costs  among  all  the  trustees  liable  therefor. 


of°adv^e*^°  SECTION  82.  If  an  adverse  claimant  is  admitted  as  a  party,  the  court  1 
isiThs  §  1  ™^y  award  costs  betw'een  him,  the  plaintiff  and  the  supposed  trustee,  or  2 
R.  s.'  109,'  §  2i.  any  of  them.  G.  s.  i42,  §  -3.  3 


p.  S.  183,  §  86. 
R.  L.  1S9,  §  81. 
IS  Gray,  70. 


6  AUen,  122. 
99  Mass.  501. 
Ill  Mass.  281. 


123  Mass.  319. 
134  Mass.  249. 
176  Mass.  124. 


^°e^s*donot™"         SECTION  83.     If  the  damages  recovered  in  an  action  brought  under  1 

do?fare*'°        trustee  process  do  not  exceed  ten  dollars,  exclusive  of  all  costs  in  any  2 

1855, 300,  §  1.    former  action,  the  plaintiff  shall  recover  no  costs.  i8o7, 200,  §  1.  3 

G.  S.  142,  §  74.  1881.  216,  §  1.  P.  S.  183,  §§  87,  88.  R.  L.  189,  §  82. 


REFERENCES. 

Validity  of  assignment  of  future  earnings  against  trustee  process,  Chap.  154,  §  6. 

§  1.  Trustee  process  in  divorce  cases,  Chap.  208,  §  13.  Same  in  equity.  Chap. 
214,  §  7. 

§  o.  Service  of  trustee  process  on  the  treasurer  of  a  foreign  corporation  or  the 
agent  of  a  foreign  insurance  company  or  upon  a  volimtary  association.  Chap.  223, 
§§3S-40. 

§  32.     As  to  other  exemptions,  Chap.  235. 


Chap.  247.] 


REPLEVIN. 


2603 


CHAPTER    247, 

REPLEVIN. 


Sect. 

replevin  of  beasts  distrained. 

1.  Replevin  of  beasts  distrained. 

2.  Bond. 

3.  Appraisal  of  property  replevied. 

4.  Return  of  writ,  etc. 

5.  Form  of  judgment  for  defendant. 

6.  Form  of  judgment  for  plaintiff. 

REPLEVIN    OF    OTHER    PROPERTY: . 

7.  Replevin    of    goods   unlawfully    taken 

or  attached. 
S.  Bond. 
9.  Form  of  judgment  for  defendant. 

10.  Damages,  how  assessed. 

11.  Disposal  of  money  recovered  by  officer 

after  reple\'in  of  goods  attached,  etc. 


Sect. 

12.  Same  subject. 

13.  Form  of  judgment  for  plaintifT. 

GENERAL    PROVISIONS. 

14.  Approval  of  sureties  on  replevin  bond. 

15.  Proceedings. 

16.  Fees  of  master. 

17.  Defects    in    bond    not    cause    for    dis- 

missal. 
IS.  Limitation  of  actions  against  sureties 
on  bonds. 

19.  Assessment  of  damages. 

20.  Proceedings  upon  judgment  for  return 

of  goods  attached,  etc. 

21.  Form  of  writ  of  return. 

22.  Effect  of  foregoing  provisions. 


REPLEVIN   OF   BEASTS  DISTRAINED. 


1  Section  1.     A  person  whose  beasts  have  been  distrained  or  impounded  P^'p'^™ ''f 

1  f      p   •  111*  beasts  diB- 

2  in  order  to  recover  a  penalty  or  lorieiture  supposed  to  have  been  incurred  trainefL 

3  by  their  going  at  large  or  to  obtain  satisfaction  for  damages  alleged  to  c\  lI^is!  §  s 

4  have  been  done  by  them  may  cause  them  to  be  replevied. 


132.  §  1. 
1789,  20,  §  1. 


R.  S.  113.  §  17. 
G.S.  143,  §  1. 


P.  S.  184,  §  1. 
R.  L.  190,  §  1. 


2  Cush.  88. 
7  Cueh.  355. 


1  Section  2.     Before  the  officer  serving  the  writ  delivers  the  beasts  to  Bond. 

2  the  plaintiff,  he  shall  take  from  the  plaintiff  or  a  person  in  his  behalf  a  i62^§*4."'  ^ '' 

3  bond  payable  to  the  defendant  in  a  sum  equal  to  double  the  value  of  the  Jrao-i'  ^ 


13,  §  2. 


4  beasts,  with  sufBcient  sureties,  conditioned  to  prosecute  the  replevin  to  R^I'ffsVig 

5  final  judgment  and  to  pay  such  damages  and  costs  as  the  defendant  shall  g.  s.  us.  §  s. 

6  recover  and  to  return  the  beasts  if  such  shall  be  the  final  judgment.  r'.'l.  lod,  §  2. 

100  Mass.  122.  104  Mass.  328.  105  Mass.  44.  136  Mass.  515. 


1  Section  3.     The  writ  shall  require  that  the  bond  be  given  for  double  Appraisal  of 

2  the  value  of  the  beasts  but  shall  not  express  the  amount  for  Mhich  it  fepievied. 

3  shall  be  given.    If  the  parties  do  not  agree  as  to  the  value  of  the  beasts,  R*~s.'m,'/2o, 

4  it  shall  be  ascertained  by  three  disinterested  appraisers,  who  shall  be  p|j84'|4- 

5  appointed  and  sworn  by  the  officer,  and  the  penalty  of  the  bond  shall  be  R./- 190,  §  3. 

6  double  the  value  ascertained  by  such  appraisers  or  by  a  majority  of  them. 


1  Section  4.     The  officer  shall  return  such  bond  with  the  writ  to  the  Return  ot  writ, 

2  court  to  which  the  writ  is  returnable,  for  the  use  of  the  defendant;   and  fysg,  2fi,  §  i. 

3  he  shall  include  in  his  return,  endorsed  on  the  writ,  a  certificate  of  the  R.'s.'ns.'fii. 

4  appointment  of  the  appraisers,  of  the  appraisal  and  of  the  expenses  p|J||||- 

5  thereof. 


R.  L.  190, 


1917,  320. 


12  .Met.  516. 


97  Mass.  316. 


1  Section  5.     If  the  court  finds  that  the  beasts  were  lawfully  taken  or  Formofjudg- 

2  distrained,  the  defendant  shall  have  judgment  for  the  amount  found  to  dc'tendant. 


2604 


REPLEVIN. 


[Chap.  247. 


1789,  26,  §  2. 

R.  S.  113. 

§§  22,  2.1. 

G.S.  143, 

§§6.7. 

P.  S.  184, 

l§6,7. 

R.  L.  190.  §  5. 

1917.  326. 


be  due  from  the  plaintiff  for  the  penalty  or  forfeiture  or  for  the  damages  3 

for  which  the  beasts  were  impounded,  with  the  legal  fees,  costs,  charges  4 

and  expenses  incurred  by  reason  of  the  distress,  and  with  the  costs  of  the  5 

action  of  replevin ;  or,  instead  thereof,  the  court  may  render  a  judgment  6 

for  a  return  of  the  beasts,  to  be  held  by  the  defendant  irrepleviable  by  7 

the  plaintiff,  and  for  the  damages  for  the  taking  of  the  beasts  by  the  re-  8 

plevin  and  for  the  defendant's  costs.    If  so  returned,  the  beasts  shall  be  9 

held  and  disposed  of  as  if  they  had  not  been  replevied.  10 


Sd^eLt  Section  6.     If  the  court  finds  that  the  beasts  were  unlawfully  taken  1 

i'789'26"r2      ^^  distrained,  the  plaintiff  shall  have  judgment  for  damages  caused  by  2 

R.  s.'iis.  §  24.  such  taking  and  detaining  and  for  costs.  3 

G.  S.  143,  §  8.  P.  S.  184,  IS.  R.  L.  190,  §  6.  1917,  326,  §  2. 


Replevin  of 
goods  unlaw- 
fully taken  or 
attached. 
C.  L.  132,  §  1. 
17S9,  26,  §  4. 
R.  S.  113.  §  27. 
G.S.  143,  §  10. 
P.  S.  184,  §  10. 
R.  L.  190,  §  8. 
15  Mass.  359. 


REPLEVIN  OF  OTHER  PROPERTY. 

Section  7.     If  goods  exceeding  twenty  dollars  in  value  are  unlawfully  1 

taken  or  detained  from  the  owner  or  person  entitled  to  their  possession,  or  2 

if  goods  of  that  value,  which  have  been  attached  on  mesne  process  or  taken  3 

on  execution,  are  claimed  by  a  person  other  than  the  defendant  in  the  4 

action  in  which  they  have  been  so  attached  or  taken,  the  owner  or  such  5 

other  person  may  cause  them  to  be  replevied.  6 


16  Mass.  147. 

17  Mass.  COG. 
3  Pick.  2.55. 

2  Cush.  88. 

3  Cush.  261. 
9  Cush.  407. 
11  Cush.  218. 
9  Gray,  216. 


16  Gray,  213. 
6  Allen,  227. 

9  Allen,  116. 

10  Allen,  211. 
14  Allen,  62. 

105  Mass.  113,  300. 

114  Mass.  570. 

115  Mass.  156. 


116  Mass.  300.  371. 
121  Mass.  107. 
146  Mass.  329, 

155  Mass.  539. 

156  Mass.  141. 
166  Mass.  146. 
207  Mass.  407. 


Bond. 

C.  L.  132.  §  1. 

1789,  26,  §  4. 
R.  S.  113,  §  29. 
G.S.  143.  §  12. 
P.  S.  184,  §  12. 
R.  L.  190.  §  9. 
1920,  590,  §  6. 
8  Mass.  153. 

11  Mass.  282. 
14  Mass.  313. 
5  Pick.  226. 

1  Met.  508. 

12  Met.  516. 
8  Cush.  556. 

5  Gray.  27. 

6  Gray,  363. 

13  Gray,  469. 
3  Allen,  426. 
5  Allen,  348. 


Section  8.     Except  as  otherwise  provided  in  section  thirty-seven  of  1 

chapter  two  hundred  and  fifty-five,  before  the  officer  serving  the  writ  2 

delivers  the  goods  to  the  plaintiff,  he  shall  take  from  the  plaintiff  or  a  3 

person  in  his  behalf  a  bond  payable  to  the  defendant  in  a  sum  equal  to  4 

double  the  value  of  the  goods,  with  sufficient  sureties,  conditioned  to  5 

prosecute  the  replevin  to  final  judgment  and  to  pay  such  damages  and  6 

costs  as  the  defendant  shall  recover  and  to  return  the  goods  if  such  shall  7 

be  the  final  judgment.    The  officer  shall  appraise  the  goods  and  return  8 

the  writ  in  the  manner  provided  in  sections  three  and  four;   but  if  the  9 

■writ  is  returnable  to  the  superior  court,  the  bond  shall  be  left  with  the  10 

clerk  of  the  court  for  the  use  of  the  defendant.  11 


105  Mass.  44. 
113  Mass.  268. 


142  Mass.  519. 
165  Mass.  505. 


182  Mass.  575. 
205  Mass.  64. 


Form  of 
judgment  for 
defendant. 
1789,  26,  §  4. 
R.  S.  113,  §  30. 


Section  9.  If  the  court  finds  that  the  defendant  is  entitled  to  a  re-  1 
turn  of  the  goods,  judgment  shall  be  rendered  therefor  and  for  the  dam-  2 
ages  caused  by  the  taking  by  the  replevin  and  for  costs.  3 


G.S.  143,  §  13. 
P.  S.  184,  §  13. 
R.  L.  190,  §  10. 
1917,  326. 
7  Met.  590. 
14  Gray,  449. 


3  Allen,  429. 
6  Allen,  227. 
14  Allen,  62. 
98  Mass.  343.  515. 

103  Mass.  520. 

104  Mass.  328. 


109  Mass.  265. 
114  Mass.  458. 
131  Mass.  26. 
136  Mass.  128.  515. 
139  Mass.  126. 
143  Mass.  440. 


SsMseT' ''°"       Section  10.     If  the  goods  when  replevied  had  been  taken  on  execu-  1 

1789, 26,  §  4.     tion,  or  if  they  had  been  attached  and  judgment  is  afterward  rendered  for  2 

g:s:i43!§  h!  the  attaching  creditor,  and  if  in  either  case  the  service  of  the  execution  3 

R.  L.  190,  §  li.  IS  delayed  by  reason  of  the  replevin,  the  damages  to  be  assessed  for  the  4 


Chap.  247.]  replevin.  2605 

5  defendant  upon  a  judgment  for  a  return  shall  be  at  the  rate  of  not  less  4  Mass.  ch. 

6  than  twelve  per  cent  a  year  on  the  value  of  the  goods  for  the  time  during  n  pick^223.' 

7  which  the  service  of  the  execution  was  so  delayed.  ~°^  *^*^^'  ^*' 

1  Section  11.     Money  recovered  by  an  officer  in  an  action  of  replevin  Disposal  of 

2  for  goods  attached  or  taken  on  execution  by  him  or  recovered  by  him  in  "leThylmcer 

3  an  action  upon  the  replevin  bond  shall  be  applied  as  follows:  of  Eoo'^d^at'-'" 

4  First,  To  pay  the  lawful  fees  and  charges  of  the  officer  and  the  reason-  R''s''iif|32 

5  able  expenses  of  the  action  of  replevin  and  of  the  action  on  the  bond,  so  Sf'iM.^f 

-,     n  ,  ,  •       1  1    1  1  1  '  r.  b.  184,  §  15. 

6  far  as  such  expenses  are  not  reuubursed  by  the  costs  recovered.  R-  l.  iqo.  §  12. 

7  Second,  To  pay  to  the  creditor  at  whose  suit  the  goods  were  attached  '^''' 

8  or  taken  on  execution  the  amount  recovered  by  him  in  that  action,  or 

9  so  much  thereof  as  remains  unpaid,  with  interest  thereon  at  the  rate  of 

10  twelve  per  cent  a  year  for  the  time  during  which  the  money  has  been 

11  withheld  from  him,  or  the  service  of  his  execution  has  been  delayed  by 

12  reason  of  the  replevin. 

1.3  If  the  attaching  creditor  in  such  case  does  not  recover  judgment  in 

14  the  action  in  which  the  attachment  was  made,  or  if  a  balance  remains  of 

15  the  money  so  recovered  by  the  officer  after  paying  what  is  due  to  the 

16  creditor,  such  money  shall  be  applied  in  the  same  manner  as  the  surplus, 

17  if  any,  of  the  proceeds  of  sale  would  and  ought  to  have  been  applied  had 

18  the  goods  been  sold  on  execution. 

1  Section  12.     All  amounts  received  by  such  creditor  from  the  proceeds  same  subject. 

2  of  the  sale  of  goods  attached  or  taken  on  execution  and  afterward  re-  c'  |;  \\l]  |  H] 

3  turned,  or  received  by  him  for  the  value  of  goods  not  returned,  or  re-  ^  ^  \®g^  ^fg 

4  covered  from  the  officer  for  the  insufficiency  of  the  sureties  on  the  bond, 

5  shall  be  applied  to  the  discharge  of  the  judgment  recovered  by  the 

6  creditor;   and  all  amounts  received  as  interest  or  damages  for  the  delay 

7  of  his  execution  shall  be  applied,  one  half  to  the  sole  use  of  the  creditor, 

8  and  the  other  half  in  discharge  of  the  judgment. 

1  Section  13.     If  the  court  finds  that  the  goods  were  unlawfully  taken  Form  of 

2  or  attached  or  unlawfully  detained  by  the  defendant,  the  plaintiff  shall  p'lain"™'  '°^ 

3  have  judgment  for  his  damages  caused  thereby  and  for  costs.  ^  |  }]|'  |  J^- 

p.  S.  184.  §17,  1917,326,  120  Mass.  543. 

R.  L.  190,  §  14.  8  Allen,  93. 

general  provisions. 

1  Section  14.     Sureties  on  a  replevin  bond  may  be  approved  in  writing  Approval  of 

2  by  the  officer  who  serves  the  writ  or  by  the  defendant  or  by  a  justice  of  repfeWn^rKi. 

3  a  district  court  or  by  a  master  in  chancery,  and,  if  approved  otherwise  p*'s'f84'§*is 

4  than  by  the  officer,  he  shall  not  be  responsible  for  their  sufficiency.  jsss.  3»s.  1 1 

142  Mass.  519.  144  Mass.  32. 

1  Section  15.     If  such  sureties  are  to  be  approved  by  a  justice  of  a  proceedings. 

2  district  court  or  by  a  master  in  chancery,  the  officer  who  serves  the  writ  p*s''f84;§^f9 

3  shall  give  written  notice  to  the  defendant  or  to  the  person  from  whose  }>*''^  ^§^' I  ^„ 

.  Y         ,  I  ,  ,  .  ,  .        ^         ,       ,  „  ,  R.  L,  190,  §  16. 

4  custody  the  property  has  been  taken,  stating  the  time  and  place  of  hear-  issMass.eoo. 

5  ing  thereon  and  the  names  and  residences  of  the  proposed  sureties,  al- 

6  lowing  not  less  than  one  hour  before  the  time  appointed  for  the  hearing 

7  and  at  the  rate  of  one  hour  additional  for  each  mile  of  travel. 


2606 


REPLEVIN. 


[Chap.  247. 


Fees  of  master. 
1870.  309,  §  S. 
P-  S.  184,  §  20. 
R.  L.  190,  §  17. 


Section  16.     The  fee  of  the  master  for  the  hearing  and  decision  shall  1 

be  as  prescribed  in  section  twenty-three  of  chapter  two  hundred  and  2 

sixty-two;   and,  if  the  bond  is  approved,  such  fee  shall  be  taxed  in  the  3 

plaintiff's  costs,  if  he  prevails  in  the  action.  4 


Defects  in 
bond  not  cause 
for  dismissal. 
1878,  273. 
P.  S.  1.84,  §  21. 
R.  L.  190,  §  18. 
1917,  326. 
219  Mass.  194. 


Section  17.  An  action  of  replevin  shall  not  be  dismissed  by  reason 
of  a  defect  in  the  form  or  substance  of  the  bond  taken  therein,  if  the 
coiu-t  is  satisfied  that  such  bond  was  intended  in  good  faith  as  a  com- 
pliance with  the  law  requiring  a  bond  to  be  taken  before  service  of  the 
writ  and  if  the  plaintiff,  within  such  time  and  upon  such  terms  as  the 
court  orders,  files  a  new  bond  such  as  is  required  by  law,  approved  by 
the  coiut  or  in  the  manner  pro\itled  in  section  fourteen. 


Limitation  of 
actions  against 
sureties  on 
bonds. 

R.  S.  113.  §  40. 
G.  S.  143.  §  23. 
P.  S.  184.  §  22. 
R.  L.  190,  §  19. 

1918,  257, 
§  440. 

1919,  5. 


Section  18.  An  action  shall  not  be  maintained  against  a  surety  on 
a  replevin  bond,  unless  the  writ  is  served  on  him  within  one  year  after 
the  final  judgment  in  the  action  of  replevin.  If  the  writ  of  replevin  is  not 
entered,  an  action  on  the  bond  shall  not  be  maintained  against  a  surety 
unless  it  is  entered  within  one  year  after  the  return  day  of  the  writ  of 
replevin.  1920, 2. 


of^difm"ges.  SECTION  19.     Damages  in  replevin  shall  be  assessed  by  the  jury  by 

G  iilijig'  ■^'hich  the  cause  is  tried,  if  there  is  a  trial  by  jury;    otherwise,  by  the 
p.  s.  184, 1 23.   court  or  by  a  jury  impanelled  therefor.  3 

R.  L.  190.  §  20.  1917,  326. 


1 

2 


Proceedings 
upon  judg- 
ment for  return 
of  goods 
attached,  etc. 
1789,  26,  §  4. 
R.  S.  113,  §  36. 
G.  S.  143.  §  18. 
P.  S.  184.  §  24. 
R.  L.  190,  §  21. 


Section  20.     If  the  goods  replevied  had  been  attached,  they  shall,  1 

upon  a  judgment  for  a  return,  be  held  liable  to  the  attachment  until  2 

final  judgment  in  the  action  in  which  they  were  attached,  and  for  thirty  3 

days  thereafter,  so  that  they  may  be  taken  on  execution.      If  such  final  4 

judgment  is  rendered  before  the  return  of  the  goods,  or  if  the  goods  when  5 

replevied  were  seized  and  held  on  execution,  they  shall  be  held  subject  6 

to  the  same  attachment  or  seizure  for  thirty  days  after  the  return,  in  7 

order  that  the  execution  may  be  served  thereon,  or  the  service  thereof  8 

completed,  in  like  manner  as  it  might  have  been  if  the  goods  had  not  9 

been  replevied.  10 


Form  of  writ 
of  return. 
1789.  26, 
§§G,7. 


Section  21.     The  writ  of  return  in  actions  of  replevin  shall  be  sub- 
stantially in  the  form  heretofore  established  and  used  in  like  cases. 


R.  S.  113,  5  38. 
G.S.  143,  §  20. 
P.  S.  184,  §  2G. 


R.  L.  190,  §  23. 
1918,  257,  §  442. 


1919,5. 
1920,  2. 


Effect  of  fore- 
going pro- 
visions. 

R.  S.  113,  §  39. 
G.S.  143,  §  21. 
r.  S.  184,  J  27. 
R.  L.  190,  §  24. 
1918.257, 
§442. 
1919,  5. 
1920, 2. 


Section  22.     The  foregoing  provisions  shall  not  preclude  the  de-  1 

fendant  from  his  remedy  on  the  replevin  bond,  nor,  except  as  provided  2 

in  section  fourteen,  from  his  remedy  against  the  officer  for  the  insuffi-  3 

ciency  of  the  sureties  on  the  bond,  to  recover  the  value  of  the  goods  and  4 

the  loss  or  damage  caused  by  the  replevin,  although  he  has  endeavored  5 

to  recover  the  same  by  the  WTit  of  return  as  before  provided.  6 

8  Met.  205. 


REFERENCE. 
Replevin  of  property  held  under  claim  of  lien,  Chap.  255,  §§  36-39. 


Chap.  248.] 


H.\BE.\S   CORPUS   AND   PERSON.\L   LIBERTY. 


2607 


CHAPTER    248. 

HABEAS   CORPUS   AND   PERSONAL  LIBERTY. 


Sect. 


HABEAS    CORPUS. 


1 .  Writ  of  habeas  corpus. 

2.  By  whom  issued. 

3.  Petition  for  the  writ. 

4.  Issue  of  writ. 

5.  Form  of  writ. 

6.  How  signed  and  served. 

7.  Description  of  custodian  of  prisoner. 

8.  Designation  of  prisoner. 

9.  Advances  prior  to  service  of  writ. 

10.  Return  of  writ. 

11.  Contents  of  return. 

12.  Prisoner  to  be  produced. 

13.  Pro\asiou  if  prisoner  is  ill,  etc. 

14.  Return  before  justice  of  court. 

15.  Examination  of  causes  of  imprisonment. 

16.  Notice  to  person  interested  in  detention 

of  prisoner. 

17.  Notice  to  attorney  general  if  prisoner 

held  for  crime. 

18.  Custody  of  prisoner  pending  examina- 

tion. 

19.  Release  of  prisoner  on  bail. 

20.  Bail  of  prisoner  committed  in  civil  ac- 

tion for  want  of  bail. 

21.  Bail  of  prisoner  committed  on  criminal 

charge. 


Sect. 

22.  Prisoner  to  be  remanded,  when. 

23.  Prisoner  to  be  discharged,  when. 

24.  Second  imprisonment  after  discharge. 

25.  Limitation  of  scope  of  chapter. 

26.  Penalty  on  officer  refusing  copy  of  war- 

rant. 

27.  Proceedings  upon  refusal  to  obey  writ. 

28.  Same  subject. 

29.  Same  subject. 

30.  Penalty  for  refusing  to  obey  writ. 

31.  Resistance,  etc.,  of  writ  a  contempt. 

32.  Penalty  for  removing  or  concealing  pris- 

oner. 

33.  Recovery  of  penalty  not  to  bar  action 

for  false  imprisonment,  etc. 

34.  Person   in   custody   of    United    States 

marshal. 

PERSONAL    LIBERTY. 

35.  Personal  liberty,  how  secured. 

36.  Proceedings  to  obtain  personal  liberty. 

37.  Notice  to  custodians,  etc. 

38.  Examination  of  witnesses. 

39.  Probate  court  may  request  the  district 

attorney    to    conduct    examination, 
etc. 

40.  Payment  of  expenses  regulated. 


HABEAS    CORPUS. 

1  Section  1.     Whoever  is  imprisoned  or  restrained  of  his  liberty  may, 

2  as  of  right  and  of  course,  prosecute  a  writ  of  habeas  corpus,  according 

3  to  tiiis  chapter,  to  obtain  release  from  such  imprisonment  or  restraint, 

4  if  it  proves  to  be  unlawful,  unless  — 

5  First,  He  has  been  committed  for  treason  or  felony,  or  on  suspicion 

6  thereof,  or  as  accessory  before  the  fact  to  a  felony,  and  the  cause  has 

7  been  plainly  expressed  in  the  warrant  of  commitment. 

8  Second,  He  has  been  convicted  or  is  in  execution  upon  legal  process, 

9  civil  or  criminal. 

10 '    Third,  He  has  been  committed  on  mesne  process  in  a  civil  action  in 

11  which  he  was  liable  to  arrest  and  imprisonment,  unless  excessive  and 

12  unreasonable  bail  was  required. 


Writ  of  h.ibeas 
corpus. 
1784,  72,  §  1. 
R.  S.  ill, 
«  1.2. 
1855,  489, 
§§  2,  20. 
G.  S.144, 
§§  1,2. 
P.  S.  185, 
§§1,2. 
R.  L.  191, 
2  Pick.  105, 
172. 
12  Gush.  598. 
2  Gray.  406. 
167  Mass.  11. 
186  Mass.  301. 


,  §  1. 


Section  2.     The  writ  may  be  issued,  irrespective  of  the  county  in  By  whom 

which  the  person  is  imprisoned  or  restrained,  by  the  supreme  judicial  i'784f72,  §  i. 

or  the  superior  court,  by  a  probate  or  a  district  court,  by  a  judge  of  fjf.'s.^'' 

any  of  said  courts,  or  by  a  justice  of  the  peace  if  none  of  said  judges  cPs'i||'||" 

is  known  to  such  justice  to  be  within  five  miles  of  the  place  where  the  }'s.  i8s,§  s. 

6  person  is  imprisoned  or  restrained.  19  Pick.  339. 

1  Section  3.    The  petition  for  the  writ  shall  be  in  writing,  signed  and  f^e  wri"  ^°^ 

2  sworn  to  by  the  person  for  whose  release  it  is  intended,  or  by  a  person  H^s'iiiVs 


2608 


HABEAS   CORPUS  AND   PERSONAL  LIBERTY. 


[CiLlP.   248. 


G.S.  144,  M- 
P.S.  1S5.  §  4. 
R.  L.  191,  §  3. 
161  Mass.  46. 


in  his  belialf ,  and  shall  state  by  whom  and  where  the  person  is  imprisoned  3 

or  restrained,  the  name  of  the  prisoner  and  of  the  person  detaining  him,  4 

if  their  names  are  known,  or  a  description  of  them,  if  their  names  are  5 

not  known,  and  the  cause  or  pretence  of  such  imprisonment  or  restraint,  6 

according  to  the  knowledge  and  belief  of  the  petitioner.  7 

If  the  imprisonment  or  restraint  is  by  virtue  of  a  warrant  or  other  8 

process,  a  copy  thereof  shall  be  annexed,  unless  it  appears  that  such  copy  9 

has  been  demanded  and  refused  or  that,  for  a  sufficient  reason,  a  demand  10 

therefor  could  not  be  made.  11 


Issue  of  WTit. 
17,S4,  72,  §  2. 
ISOS,  SO. 
R.  S.  Ill,  §  4. 
1SS5.4S9,  §  3. 
1859,291,  §  1. 
G.  S.  144,  §  5. 
1861,91,  §  1. 
P.  S.  185,  §  5. 


Section  4.  The  court  or  magistrate  to  whom  the  petition  is  presented 
shall,  without  delay,  issue  a  writ  of  habeas  corpus,  substantially  in  the 
form  heretofore  established  and  used  in  the  commonwealth,  and  return- 
able forthwith  to  the  supreme  judicial  court,  or  a  justice  thereof,  at  such 
place  as  shall  be  designated  in  the  writ.        R.  l.  loi.  §  4.        loi  Mass.  46. 


Form  of  writ. 
1784,  72, 
§§1,2. 
R.  S.  Ill,  §  5. 
1859,  291.  §  2. 
G.  S.  144,  §  6. 
P.  S.  185,  §  6. 
R.  L.  191,  §5. 


Section  5.     If  the  imprisonment  or  restraint  is  not  by  a  sheriff,  deputy 
sheriff  or  jailer,  the  vrrit  shall  be  in  the  following  form: 

Commonwealth  of  Massachusetts. 

(Seal.)     To  the  sheriffs  of  our  several  counties  and  to  their  respective  deputies, 

Greeting. 
We  command  you  that  the  body  of  ,  of 

,  by  _    _        _  ,  of 

imprisoned  and  restrained  of  his  liberty,  as  it  is  said,  you  take  and  have  before 

a  justice  of  our  supreme  judicial  court  at 
immediately  after  the  receipt  of  this  writ,  to  do  and 
receive  what  our  said  justice  shall  then  and  there  consider  concerning  him  in 
tliis  behalf;  and  summon  said  then  and  there 

to  appear  before  our  said  justice  to  show  the  cause  of  the  taking  and  detaining 
of  said  ;  and  have  you  there  tliis  writ  with 

your  doings  thereon. 

Witness  at  this 

dav  of  in  the  vear 


How  signed  Section  6.     If  the  writ  is  issued  by  the  court  when  sitting  for  the  1 

R.  s.  Ill,  §  6.  transaction  of  business,  it  shall  be  signed  by  the  clerk,  otherwise  by  the  2 

p.s.i85,'§  7.'  magistrate  issuing  it,  and  may  be  served  in  any  county  by  any  sheriff  or  3 

R.L.i9i,§6.  deputy  sheriff.  4 


Description 
of  custodian 
of  prisoner. 
R.  S.  Ill,  §  10. 
G.  S.  144,  §  8. 
P.  S.  185,  §  8. 
R.  L.  191,  §  7. 


Section  7.  The  person  who  has  the  custody  of  the  prisoner  may  be 
designated  by  his  office  or  by  his  own  name,  or,  if  they  are  unknown  or 
uncertain,  he  may  be  described  by  a  fictitious  name  and  the  person  upon 
whom  the  writ  is  served  shall  be  held  to  be  the  person  intended. 


Designation  Section  8.     The  pcrsou  restrained  shall  be  designated  by  name,  if     1 

of  prisoner.  ,  "  •!       i  ■  i  -p      i  • 

S-§-'M'li'-  known:   otherwise,  he  may  be  so  described  as  to  identuy  him.  2 

G.  S.  144,  §  9.  „  .    *^ 

P.  S.  1S5,  |9.  R.  L.  191,  §  8. 


Advances  prior 
to  service  of 
writ. 

1784,  72.  §  3. 
R.  S.  Ill,  §  12. 
G.  S.  144,  §  10. 
P.  S.  185,  §  10. 
R.  L.  191,  §  9. 


Section  9.  If  the  person  restrained  is  confined  in  jail  or  is  in  the 
custody  of  a  civil  officer,  the  court  or  magistrate  granting  the  writ  shall 
certify  thereon  the  amount  to  be  paid  for  the  expense  of  transporting 
him  from  the  place  of  imprisonment,  and  the  officer  shall  not  be  boimd 
to  obey  the  writ  unless  that  amount  is  paid  or  tendered  to  him. 


Chap.  248.]  habeas  corpus  and  personal  liberty.  2609 

1  Section  10.     Any  person  to  whom  the  writ  is  directed  shall  receive  Return  of  writ. 

2  it,  and,  upon  payment  or  tender  of  the  charges  demandable  for  its  execii-  r.  s'lu.  §  is. 

3  tion,  shall  make  due  return  thereof  within  five  days  after  receiving  it.        p  |  isl;  |  JJ; 

R.  L.  191,  §  10. 

1  Section  1 1 .     The  person  in  whose  custody  the  prisoner  is  found  shall  J^™'™'^  "^ 

2  state  in  writing,  plainly  and  unequivocally,  to  the  court  or  justice  before  Fsf^'J]' 

3  whom  the  writ  is  returnable  —  g-  s^,!*''. 

4  First,  Whether  the  prisoner  is  in  his  custody  or  power  or  under  his  p.  sriss] 

r  X        •     X  §§12,  13. 

5  restraint.  r.  l.  xdi,  §  ii. 

6  Second,  If  the  prisoner  is  in  his  custody  or  power  or  under  his  restraint, 

7  his  specific  authority  for  and  the  true  and  whole  cause  of  such  imprison- 

8  ment  or  restraint,  with  a  copy  of  the  writ,  warrant  or  other  process,  if 

9  any,  upon  which  the  prisoner  is  detained. 

10  Third,  If  the  prisoner  has  been  in  his  custody  or  power  or  under  his 

11  restraint,  and  has  been  transferred  to  that  of  anotiier,  particvdarly  to 

12  whom,  when,  why  and  by  what  authority  such  transfer  was  made. 

13  The  statement  shall  be  signed  by  him  and,  unless  he  is  a  sworn  public 

14  officer  and  makes  the  statement  in  his  official  capacity,  shall  be  sworn 

15  to  by  him. 

1  Section  12.     The  person  who  makes  the  statement  shall  at  the  same  Prisoner  to 

2  time  produce  the  prisoner,  if  in  his  custody  or  power  or  under  his  re-  itm, t^^s. 

3  straint,  according  to  the  command  of  the  writ,  unless  prevented  by  the  g\  1.  illi  |  ll'. 

4  illness  or  infirmity  of  the  prisoner.  p.  s.  iss,  §14.  n.  l.  ioi,§i2. 

1  Section  13.     If  by  reason  of  the  illness  or  infirmity  of  the  prisoner  Provision  if 

2  he  cannot  without  danger  be  taken  to  the  place  appointed  for  the  return  lif,' e™*"^ '° 

3  of  the  writ,  that  fact  shall  be  stated  in  the  statement  and,  if  proved,  the  ois  ill]  |  isl 

4  judge  may  proceed  to  the  place  where  the  prisoner  is  confined  and  there  r.  l.  m',Vi3 

5  make  his  examination;    or  he  may  postpone  the  examination  or  may 

6  make  such  other  order  in  the  case  as  law  and  justice  require. 

1  Section  14.     If  the  court  to  which  the  writ  is  returnable  is  not  sitting  Return  before 

2  for  the  transaction  of  business  when  the  \\rit  is  returned,  the  return  i'784r72,  T"."^ ' 

3  shall  be  made  before  a  justice  thereof.    If  the  writ  is  returned  before  a  §:  1;  \H]  |  %_ 

4  justice  when  the  court  is  sitting  for  the  transaction  of  business,  he  may  r.'l.\|^i'.|\4. 

5  adjourn  the  case  into  the  court,  to  be  there  heard  and  determined.  i^i  m"ss' m 

1  Section  15.     After  the  writ  has  been  returned,  the  prisoner  may  deny  Examination 

2  any  of  the  facts  set  forth  in  the  statement  and  may  allege  any  other  imprisonment. 

3  material  facts;    and  the  court  or  justice  shall  examine  summarily  and  R.^s.'ni,^*' 

4  without  delay  the  causes  of  the  imprisonment  or  restraint,  hear  the  H  kSll', 

5  evidence  produced  by  any  persons  interested  or  authorized  to  appear  f.^^'^'j^f- 

6  and  dispose  of  the  prisoner  as  law  and  justice  require,  and  may  adjourn  «  i^?.  is' 

7  the  examination  from  time  to  time. 


1  Section  16.     If  it  appears  from  the  return  of  the  writ  or  otherwise  Notice  to 

2  that  the  prisoner  is  detained  on  a  process  under  which  another  person  tmstedTn  de- 

3  has  an  interest  in  continuing  his  imprisonment  or  restraint,  he  shall  not  JJ?soner°^ 

4  be  discharged  until  notice  has  been  given  to  such  other  person  or  his  q;  1;  J]];  |  H' 

5  attorney,  if  within  the  commonwealth.    If  such  person  or  his  attorney  is  J^  ^-  ^^^''^  Yui 

6  not  within  the  commonwealth  the  court  may  order  notice  to  be  given  to 

7  him. 


2610 


HABEAS   CORPUS   AKD   PERSONAL   LIBERTY. 


[CiLiP.    248. 


attorn\v''gcn-         SECTION  17.     If  it  appears  from  the  return  of  the  virit  or  othen;\-ise 

oner  heiSYor  that  the  pHsoner  is  imprisoned  on  a  criminal  accusation,  he  shall  not  be 

R^s^iu  §  20  discharged  until  notice  has  been  given  to  the  attorney  general  or  other 

G.  s.  144]  §  23.  attorney  for  the  commonwealth.  p.  s.  iss,  §  20.  r.  l.  191.  §  n. 


Custody  of 
prisoner  pend- 
ing examina- 
tion. 

R.  S.  111.  §26. 
G.  S.  144.  §  24. 
P.  S.  135.  §  21. 


Section  18.  Until  judgment  is  given,  the  court  or  justice  may  remand 
the  prisoner,  bail  him  to  appear  from  day  to  day,  commit  him  to  the 
sheriff  of  the  county,  or  place  him  under  such  other  care  and  custody  as 
the  circumstances  of  the  case  require.         R.  l.  191,  §  is.        107  Mass.  172. 


Release  of 
prisoner  on 
baU. 

1784,  72,  §  .5. 
R.  S.  Ill,  §  23. 
G.  S.  144,  §  25. 
P.  S.  185.  I  22. 
R.  L.  191,  §  19. 


Bail  of  pris- 
oner committed 
in  civil  action 
for  want  of 
bail. 

1784,  72.  5  5. 
R.  S.  Ill,  §24. 
G.  S.  144,  §  26. 
P.  S.  185,  §  23. 


Section  19.  If  the  prisoner  is  detained  for  a  cause  or  crime  for 
which  he  is  bailable,  he  shall  be  admitted  to  bail  if  sufficient  bail  is  offered ; 
and  if  not,  he  shall  be  remanded  with  an  order  of  the  court  or  justice 
expressing  the  amount  in  which  he  shall  be  held  to  bail  and  the  court 
at  which  he  shall  be  required  to  appear;  and  any  magistrate  authorized 
to  admit  to  bail  may,  at  any  time  before  the  sitting  of  said  court,  bail 
the  prisoner  pursuant  to  such  order. 

Section  20.  If  the  prisoner  has  been  committed  on  mesne  process 
in  a  civil  action  for  want  of  bail,  and  it  appears  that  the  amount  for  which 
bail  was  required  is  excessive  and  unreasonable,  the  court  or  justice  shall 
decide  how  much  bail  is  reasonable,  and  shall  order  that  on  giving  such 
bail  the  prisoner  shall  be  discharged.  R.  l.  i9i.  i  20. 


Bail  of  pris- 
oner committed 
on  criminal 
charge. 
1812,30. 
1821.  109. 
R.  S.  87,  S3; 
111,  §  36. 
G.  S.  144,  §  30. 


Section  21.  If  a  person  is  committed  to  jail  on  a  criminal  accusa- 
tion for  want  of  bail,  a  justice  of  the  superior  court  or  of  a  district  court 
or  a  trial  justice  may  issue  a  writ  of  habeas  corpus  and  cause  the  prisoner 
to  be  brought  before  him,  when  it  is  necessary  for  the  purpose  of  admitting 
him  to  bail  pursuant  to  chapter  two  hundred  and  seventy-six. 

p.  S.  1S5,  §27.  R.  L.  191,  §  21.  2  Gray,  406. 


femanded"  ^^  SECTION  22.     If  the  prisoner  is  lawfully  imprisoned  or  restrained  and  1 

r'^s'hi  §  25  ^^  °°t  entitled  to  be  admitted  to  bail,  he  shall  be  remanded  to  the  person  2 

§-|-  'i-'ll'-  from  whose  custody  he  was  taken  or  any  other  person  or  officer  author-  3 

P.  S.  ISOi  §  24.  •iiii'^'i*  4 

R.  L.  191,  §  22.  ized  by  law  to  detain  hun.  4 

discharge*d',  "  SECTION  23.     If  no  legal  cause  is  shown  for  the  imprisonment  or  re-  1 

r784!'72,  §  5. '  straint,  the  court  or  justice  shall  discharge  the  prisoner. 


R.  S.  111.  §22. 
G.  S.  144,  §  28. 


P.  S.  1S5.  §  23. 
R.  L.  191,  §  23. 


10  Gray,  240. 


Second  im 

- 

prisonment 

after  disc! 

harge. 

1784,  72. i 

n2. 

R.S.  Ill, 

§34. 

G.S.  144. 

§  29. 

P.S.  185, 

§26. 

R.  L.  191 

,§24. 

107  Mass. 

154. 

153  Mass. 

154. 

Limitation  of 

scope  of 

chapter. 

1784.72.1 

12. 

R.S.  111. 

§§  35,  37. 

G.  S.  144. 

§§31,32. 

P.  S.  185, 

§§28,29. 

R.  L.  191 

.125. 

Section  24.  No  person  who  has  been  discharged  upon  a  habeas 
corpus  shall  be  again  imprisoned  or  restrained  for  the  same  cause,  unless 
indicted  therefor,  convicted  thereof,  or  committed  for  want  of  bail  by  a 
court  of  record  having  jurisdiction  of  the  cause;  or  unless,  after  a  dis- 
charge for  defect  of  proof  or  for  some  material  defect  in  the  commitment 
in  a  criminal  case,  he  is  again  arrested  on  sufficient  proof  and  committed 
by  legal  process. 

Section  25.  This  chapter  shall  not  affect  the  power  of  the  supreme 
judicial  court,  or  of  a  justice  thereof,  to  issue  a  writ  of  habeas  corpus  at 
discretion,  and  thereupon  to  bail  a  person  for  whatever  cause  he  has  been 
committed  or  restrained  or  to  discharge  him  as  law  and  justice  require, 
unless  he  has  been  committed  by  the  go^■ernor  and  council,  the  senate 
or  the  house  of  representatives,  in  the  manner  and  for  the  causes  men- 


Chap.  248.]  h.\be.\s  corpus  and  personal  liberty.  2611 

7  tioned  in  the  constitution;   nor  affect  the  power  of  any  court  or  magis-  loTMass.  172, 

8  trate  to  issue  a  writ  of  habeas  corpus,  when  necessary  to  bring  before 

9  it  or  him  a  prisoner  for  trial  in  a  criminal  case  pending  before  it  or  him ; 

10  or  to  bring  in  a  prisoner  to  be  examined  as  a  witness  in  a  suit  or  proceed- 

1 1  ing,  civil  or  criminal,  pending  before  it  or  him,  if  the  personal  attendance 

12  and  examination  of  the  witness  is  necessary  for  the  attainment  of  justice. 

1  Section  26.     An  officer  who  refuses  or  neglects  for  six  hours  to  de-  Penalty  on 

2  liver  a  true  copy  of  the  warrant  or  process  by  which  he  detains  a  prisoner  ("n^'^copy^of 

3  to  any  person  who  demands  such  copy  and  tenders  the  fees  therefor  shall  "y^lJ"?'  5  g 

4  forfeit  two  hundred  dollars  to  such  prisoner. 

R.  S.  111,§27.  G.  S.  144,  §  33.  P.  S.  185.  §  30.  R.  L.  191,  §  26. 

1  Section  27.     If  a  person  to  whom  a  writ  of  habeas  corpus  is  directed  Proceedings 

n         p  ••!  ■  Ti  ..  upon  refusal 

2  refuses  to  receive  it,  or  neglects  to  execute  it  according  to  the  provisions  to  obey  writ. 

3  of  this  chapter  and  no  sufficient  excuse  is  shown  therefor,  the  court  or  §§  7,'8. ' 

4  justice  before  whom  the  writ  was  returnable  shall  forthwith  by  process  of  c'.  s.  m',  §  .^4^ 

5  attachment,  as  for  a  contempt,  compel  obedience  to  the  writ,  and  punish  r.  L/fgi.Viz. 

6  the  person  guilty  of  the  contempt. 

1  Section  28.     If  such  attachment  is  issued  against  a  sheriff  or  his  Same  subject. 

2  deputy,  it  may  be  directed  to  a  special  sheriff  or  to  some  other  person  g!  i:  ill;  |  st'. 

3  designated  therein,  who  shall  have  full  power  to  execute  it;   and  if  the  r.  L.'fgi.Vls. 

4  sheriff  or  his  deputy  is  to  be  committed  upon  such  process,  he  may  be 

5  committed  to  the  jail  of  any  county  other  than  his  own. 

1  Section  29.     Upon  the  refusal  or  neglect  of  the  person  to  whom  the  same  subject. 

2  writ  of  habeas  corpus  is  directed  to  receive  and  execute  it,  the  court  or  §!  s!  ill;  i  3°; 

3  justice  may  issue  a  precept  to  any  officer  or  other  person  designated  r  l^^qiVIq 

4  therein,  commanding  him.  to  bring  the  prisoner  forthwith  before  such 

5  court  or  justice,  who  shall  thereupon  discharge,  bail  or  remand  the  pris- 

6  oner  as  if  he  had  been  brought  in  upon  the  writ  of  habeas  corpus. 

1  Section  30.     Whoever  refuses  or  neglects  to  receive  and  execute  a  Penalty  for 

2  writ  of  habeas  corpus  shall  forfeit  four  hundred  dollars  to  the  party  obey  *rit° 

3  aggrieved  thereby.  i784, 72,  §  7. 

R.  S.  Ill,  §31.  G.S.  144,  §37.  P.  S.  185,  §34.  R.  L.  131,  §  30. 

1  Section  31.     Whoever  resists  the  service  of  the  writ  of  habeas  corpus.  Resistance, 

2  or  disobeys  it  when  served,  shall  be  liable  to  attachment  as  for  a  contempt  f  comcmpt. 

3  of  the  court  or  justice  before  whom  the  writ  is  returnable. 

1848,254.  G.S.  144,  §38.  P.  S.  185,  §  35.  R.  L.  191,  §  31. 


1  Section  32.     Whoever,  having  in  his  custody  or  power  a  person  en-  Penalty  for 

2  titled  to  a  M'rit  of  habeas  corpus,  transfers  him  to  the  custody,  or  places  7<m°^^\ing^ 

3  him  under  the  power  or  control,  of  another  person,  conceals  him  or  changes  k.'s°T[ i,  §  32. 

4  the  place  of  his  confinement,  with  intent  to  evade  the  service  of  such  i>\siss||n' 

5  writ  or  to  avoid  the  effect  thereof,  whether  the  writ  has  been  issued  or  i'  l.  loi,  §  32. 

6  not,  shall  forfeit  four  hundred  dollars  to  the  party  aggrieved  thereby. 

1  Section  33.     The  recovery  of  any  penalty  imposed  by  the  foregoing  Recovery  of 

2  provisions  of  this  chapter  shall  not  bar  an  action  at  common  law  for  Ea?actio"n°fo'r° 

3  false  imprisonment,  or  for  a  false  return  to  the  writ  of  habeas  corpus,  or  onme™.''etc". 

4  for  any  other  injury  or  damage  sustained  by  the  aggrieved  party.  §■  g  \\l'  |  H' 

p.  S.  185.  §  37.  R.  L.  191,  §  33. 


2612 


HABEAS    CORPUS   -VXD   PERSONAL   LIBERTY. 


[Ch.\p.  248. 


Person  in 
custody  of 
United  States 
niarshal. 
1S61,91.  I  3. 
P.  S.  185,  I  39. 
R.  L.  191,  §  34. 


Section  34.  This  chapter  shall  not  authorize  the  taking  of  a  person  by 
writ  of  habeas  corpus  out  of  the  custody  of  the  United  States  marshal,  or 
his  deputy,  who  holds  him  by  legal  and  sufficient  process  issued  by  any 
court  or  magistrate  of  competent  jurisdiction;  but  this  section  shall  not 
affect  the  authority  of  the  supreme  judicial  court  or  of  its  justices,  in 
accordance  with  the  provisions  of  the  constitution  of  the  United  States 
and  of  the  commonwealth,  to  investigate  and  determine  the  validity  and 
legal  effect  of  any  process  which  may  be  relied  on  to  defeat  the  WTit,  or 
any  other  matter  properly  arising. 


Personal  lib- 
erty, how 
secured. 
1S94,  536.  §  1. 
R.  L.  191,  §48. 


PERSONAL   LIBERTY. 

Section  35.  No  person  shall  be  deprivetl  of  his  liberty  or  held  in 
custody  by  any  person  or  in  any  place  against  his  will  or,  if  he  is  a  minor, 
against  the  will  of  his  parents,  guardian  or  other  person  entitled  to  his 
custody,  except  by  due  process  of  law;  but  this  section  shall  not  apply 
to  persons  who  have  been  legally  convicted  of  crime  and  are  ser\ing 
sentence  therefor. 


Proceedings 
to  obtain  per- 
sonal liberty. 
1894.  S3G,  §  2. 
R.  L.  191,  §  49. 


Section  36.  Whoever  has  reason  to  believe  that  another  person  is 
deprived  of  his  liberty  or  held  in  custody  in  violation  of  the  preceding 
section  may  file  a  petition,  on  the  oath  of  the  petitioner,  in  the  pro- 
bate court  for  the  county  where  such  person  is  believed  to  be  detained, 
stating  his  name,  age  and  general  description,  where,  when  and  under 
what  circumstances  he  was  deprived  of  his  liberty,  where  he  is  believed 
to  be  detained,  the  name  of  the  person  so  depri\ing  him  of  his  liberty, 
if  known,  the  name  of  his  supposed  custodian  and  any  other  material 
facts  and  circumstances. 


Notice  to  cus- 
todians, etc. 
1894,  53fi.  5  3. 
R.  L.  191,  §  50. 


Section  37.  Upon  the  filing  of  such  petition,  the  court  shall  cause 
notice  to  be  served  upon  all  the  supposed  custodians  or  persons  alleged 
to  be  detaining  or  holding  in  custody  said  person,  as  stated  in  said  petition, 
or  as  otherwise  known,  ordering  them  to  appear  before  said  court  at  a 
time  and  place  named  therein,  to  be  examined  as  said  court  shall  order; 
and  may  cause  said  person  to  be  brought  before  it  for  examination  as 
to  his  desire  to  be  released  and  as  to  any  other  relevant  matters. 


Examination 
of  witnesses. 
1894,  536,  §  4. 
R.  L.  191,  I  51. 


Section  38.  The  court  may  examine  the  witnesses  separately  and 
may  permit  the  petitioner,  parent,  guardian  or  other  person  entitled  to 
the  custody  of  a  person  depri\ed  of  his  liberty,  in  person  or  by  counsel, 
to  examine  publicly  his  alleged  custodian  as  to  the  condition  of  such  per- 
son and  the  place  where  he  is  detained  or  held  in  custody ;  and  may  also 
examine  separately  and  apart,  or  publicly,  such  person,  and  may  make 
orders  for  his  release  or  permitting  correspondence  or  personal  interviews 
between  him  and  his  friends  or  relatives,  and  may  modify  its  orders  upon 
notice  to  the  parties. 


Probate  court 
may  request 
the  district 
attorney  to 
conduct  exam- 
ination, etc. 
1894,  536,  §  5, 
R.  L.  191,  §  52 


Section  39.  The  probate  court  may  request  the  district  attorney 
for  the  district  where  it  is  held  to  attend  the  examination  under  the 
preceding  section,  and  to  conduct  or  assist  in  conducting  the  examina- 
tion. If  the  court  is  imable  to  obtain  satisfactory  information,  or  to 
satisfactorily  determine  the  questions  involved  or  to  furnish  proper  re- 
lief, it  shall  notify  the  district  attorney,  who  may  institute  proceedings 
under  sections  one  to  thirty-four,  inclusiNe,  or  such  other  proceedings  as 


Chap.  249.]        audita  ql-erela,  certiorari,  m.\ndamus,  etc.  2613 

8  the  case  may  require.    The  provisions  of  said  sections  shall  apply  to  all 

9  proceedings  under  the  four  preceding  sections  so  far  as  appropriate. 

1  Section  40.     The  fees  for  the  service  of  process  and  notices  and  for  Payment  of 

2  summoning  witnesses  shall,  upon  the  approval  of  the  court  or  district  regubted. 

3  attorney,  be  paid  by  the  county  where  such  person  is  detained,  if  the  r.^l.Tqi,  §53 

4  petitioner  is  not  able  to  pay  them. 


CHAPTER    249. 

AUDITA  QUERELA,  CERTIORARI,  MANDAMUS  AND  QUO  WARRANTO. 

Sect. 

quo  "warranto. 

6,  Application  for  information  in  nature  of 
quo  warranto. 

7.  Hearing  on  application,  etc. 
S.  Injunction. 
9.  Attorney  general  may  intervene. 

10.  Judgment. 

11.  Respondent's  costs. 

12.  Informations   against   persons   holding 
public  office,  etc. 

13.  Effect  of  chapter. 


Sect. 

audita  querela. 

1.  Writ  of  audita  querela. 

2.  Damages,  etc. 

3.  Release  from  imprisonment. 

CERTIOR-IRI. 

4.  Petition,  writ,  decree  and  costs. 

MANDAMUS. 

5.  W^rit  of  mandamus. 


AUDITA    QUERELA. 

1  Section  1.     The  WTit  of  audita  querela  for  the  purpose  of  preventing,  writ  of  audita 

2  setting  aside  or  annulling  any  proceedings  upon  a  judgment  or  execution  i7l5^47,  §§  1, 

3  shall  be  sued  out  of  and  be  returnable  to  the  court  in  which  the  judgment  fj  ^g'  Wh 

4  was  rendered.    It  shall  be  sued  out  and  served  like  an  original  writ,  the  ^  |-*j^'l 

5  forms  of  process  shall  be  the  same  as  those  heretofore  established  and  |§  5,"*o/ 

6  used  in  the  commonwealth,  the  proceedings  so  far  as  appropriate  shall  §§  i-3. «.' 

7  be  the  same  as  in  personal  actions  and  the  court,  after  the  writ  has  been  id  Massr'ibi.' 

8  sued  out,  may  issue  an  injunction.  17  Mass.  153. 

S  Met    228.  11  Gray,  3S0.  14  Allen,   172.  161  Mass.  327. 

11  Gush.  3.5.  13  Gray,  1.  100  Mass.  244.  215  Mass.  72. 

7  Gray.  20B.  9  .iUen,  572.  151  Mass.  390.  223  Mass.  467. 

1  Section  2.     If  the  plaintiff  prevails  upon  a  writ  sued  out  to  set  aside  Damases,  etc. 

2  or  annul  proceedings  upon  an  execution,  he  shall  recover  the  damages  r*!'  112,^*5. 


G.  S.  145,  S  a. 
p.  S.  180,  ^  4. 

4  shall  be  a  bar  to  anv  other  action  tiiereafter  brought  for  the  same  damages.  ^-  ^-  ^^-'  ^  ^■ 


3  sustained  by  said  proceedings,  and  the  judgment  upon  the  audita  cjuerela  p- 1;  Jl;,;  1 4 


1  Section  3.     If  the  plaintiff  is  imprisoned  on  the  execution  or  other  Release  from 

2  process  complained  of,  the  court  may  release  him  upon  his  giving  bond  i'78'o!'*47,Ti2. 

3  to  the  defendant  in  such  sum  as  the  court  orders,  with  two  or  more  Rf.g^^^' 

4  sureties  approved  by  the  court,  conditioned  that  if  final  judgment  upon  55  f"^' 

5  the  audita  querela  is  rendered  for  the  defendant,  he  will,  within  thirty  &  L^igi^s^ 

6  days  thereafter,  surrender  himself  to  the  jailer  or  other  officer  by  whom 

7  he  was  imprisoned  to  be  detained  in  custody  under  the  former  execution 

8  or  process  or  shall  within  that  time  pay  the  amount  due  on  the  former 

9  execution  or  process,  with  the  costs.    If  the  plaintiff  so  surrenders  him- 

10  self,  he  shall  be  in  custody  under  the  execution  or  other  process  on  which 

11  he  was  imprisoned  as  if  the  writ  had  not  been  sued  out. 


2614 


QUO   W.UKR.VNTO. 


[ClLVP.   249. 


Petition,  writ, 

decree  and 

costs. 

R.  S.  112, 

l§   21-23. 

1858.  109. 

G.  S.  145, 

§§  8-12. 

1870.  119. 

1873,  355. 

P.  S.  186, 

§§  7-12. 

R.  L.  192,  §  4. 

1902.  544.  §  27. 

4  Mass.  556, 

565. 

11  Mass.  462. 

1  Met.   122. 

2  Met.  220. 
10  Met.  217. 


CERTIORARI. 

Section  4.  A  petition  for  a  writ  of  certiorari  to  correct  errors  in 
proceedings  which  are  not  according  to  the  course  of  the  common  law 
may  be  presented  to  a  justice  of  the  supreme  judicial  court,  and  he  may, 
after  notice,  hear  and  determine  the  same.  The  writ  shall  not  be  issued 
unless  the  petition  therefor  is  presented  within  six  years  next  after  the 
proceedings  complained  of.  It  may  be  issued  from  the  clerk's  ofBce  in 
any  county  and  shall  be  returnable  as  the  court  orders.  The  court  at 
any  time  after  the  petition  is  presented  may  impose  costs  upon  any 
party,  may  issue  an  injunction  and  may  order  the  proceedings  brought 
up;  and,  after  they  are  brought  up,  may  quash  or  afBrm  them,  or  may 
make  such  order,  judgment  or  decree  as  law  and  justice  may  require. 


S  Gush.  529. 
2  .\llen,  463. 

5  .Mien,  13. 

6  .\llen,  131. 
98  Mass.  491. 
103  Mass.  120. 

112  Mass.  206,  218. 

113  Mass.  52. 

114  Mass.  583. 

116  Mass.  73,  84, 
87,  189,  193. 

117  Mass.  563. 
lis  Mass.  561. 


119  Mass.  556. 
122  Mass.  290. 
132  Mass.  42. 
134  Mass.  313. 

143  Mass.  589. 

144  Mass.  352. 

146  Mass.  298,  403. 

147  Mass.  455. 

153  Mass.  161. 

154  Mass.  395. 

155  Mass.  467. 
160  Mass.  282. 
166  Mass.  399. 


16S  Mass.  239. 

171  Mass.  338. 

172  Mass,  28. 
176  Mass.  22, 

180  Mass.  288. 

181  Mass.  6,  432.  463. 
183  Mass.  42.  119. 
198  Mass.  584. 

205  Mass.  94. 
209  Mass.  316. 
213  Mass.  17. 
222  Mass.  542. 


Writ  of 
mandamus. 

1851.  233, 
§§  51-54. 

1852,  312, 
l§  38-41. 
G.  S.  145, 
5§  13-15. 
1873,  355. 
P.  S.  186, 
5§  13-16. 

R.  L.  192,  §  5. 
104  Mass.  498. 
193  Mass.  569. 

195  Mass.  222. 

196  Mass.  267. 
227  Mass.  142. 
229  Mass.  200, 
208. 

236  Mass.  330. 


Application 
for  informa- 
tion in  nature 
of  quo  war- 
ranto. 

1851,  233, 
§§  55,  56. 

1852.  312, 
§§  42,  43. 
G.  S.  145, 
SI  16,  17. 


MANDAMU.S. 

Section  5.  A  petition  for  a  writ  of  mandamus  may  be  presented  to 
a  justice  of  the  supreme  judicial  court,  and  he  may,  after  notice,  hear 
and  determine  the  same.  Upon  the  return  of  the  order  of  notice,  the 
person  required  to  appear  shall  file  an  answer  showing  cause  why  the 
writ  should  not  issue,  and  the  petitioner  may  traverse  any  material 
facts  alleged  in  the  answer  or  may  demur  thereto.  The  court  may  re- 
quire a  third  person  who  has  or  claims  a  right  or  interest  in  the  subject 
matter  to  appear  and  answer  and  to  stand  as  the  real  party.  If  the 
petitioner  prevails,  his  damages  shall  be  assessed  and  judgment  shall  be 
rendered  therefor,  with  costs,  and  for  a  peremptory  vrrit  of  mandamus; 
otherwise,  the  party  answering  shall  recover  costs  of  the  petitioner.  No 
action  shall  be  maintained  for  a  false  answer.  All  writs  and  processes 
may  be  issued  from  the  clerk's  office  in  any  county  and  shall  be  return- 
able as  the  court  orders. 

QUO  warranto. 

Section  6.  A  person  whose  private  right  or  interest  has  been  injured 
or  is  put  in  hazard,  by  the  exercise  of  a  franchise  or  privilege  not  conferred 
by  law,  by  a  private  corporation  or  by  persons  claiming  to  be  a  private 
corporation,  whether  he  is  a  member  of  such  corporation  or  not,  may 
apply  to  a  justice  of  the  supreme  judicial  court  in  any  county  for  leave  to 
file  an  information  in  the  nature  of  a  quo  warranto.  i87i,  366. 


p.  S.  186,  §§  17,  IS. 
R.  L.  192.  §  6. 
9  Gush.  596. 
1  Gray,  340. 
3  Gray,  116. 


5  .41Ien.  221. 
103  Mass.  138. 
126  Mass.  300. 
128  Mass.  308. 
132  Mass.  174. 


133  Mass.  538. 

148  Mass.  285. 

149  Mass.  436. 
163  Mass.  446. 
169  Mass.  229,  534. 


170  Mass.  71. 
194  Mass.  280. 
197  Mass.  194. 
236  Mass.  564. 
1  Op.  A.  G.  81.  633. 


Hearing  on 
applicatiori, 
etc. 

1851,  233, 

|§  57,  58,  63. 

1852,  312, 

§§  44,  45,  49. 
G.  S.  145, 
§§  18,  19. 


Section  7.  The  court  shall  give  a  summary  hearing  and  if  it  appears 
that  there  is  probable  cause  to  believe  that  the  respondent  has  exercised 
a  franchise  or  privilege  not  conferred  by  law,  whereby  the  private  right 
or  interest  of  the  complainant  has  been  injured  or  is  put  in  hazard,  shall 
grant  leave  to  file  the  information,  which  shall  be  filed  in  the  county 


CiiAP.  250.] 


WRITS    OF   ERROR,    ETC. 


2615 


6  where  the  respondent  has  its  principal  place  of  business.     A  copy  of  the  p.  s.  isfi, 

7  information,  with  an  order  of  notice  returnable  and  to  be  served  when  k.  l.  192,  §  7. 

8  and  as  it  directs,  shall  be  served  on  the  respondent  and  on  the  attorney 

9  general. 


1  Section  8.     If  leave  is  given  to  file  such  information,  the  court,  at  J°i>;°^'i™-,  ,„ 

1      n  n        ^    *      1  •  -p..  .  ..  1851,  2SS,  §  59. 

2  any  time  before  nnal  judgment,  may  issue  a  writ  oi  injunction  restraining  1852,  312,  §  46. 

3  the  respondent  from  exercising  the  franchise  or  privilege  in  question  until  b.'  s.'  ise,'  §  21! 


4  the  further  order  of  the  court. 


R.  L.  192,  §  8. 


1  Section  9.     If  the  attorney  general  believes  that  there  has  been  a  Attorney 

2  usurpation  of  a  franchise  or  privilege  not  conferred  by  law,  he  may  inter-  mtTreen™.''^ 

3  vene,  control  the  subsequent  proceedings  and  demand  a  judgment  of  \lll]  ifi;  |  tl[ 

4  fine  and  forfeiture,  and  the  complainant  shall  no  longer  be  liable  for  p  |;  }||'  |  32! 

5  costs.    The  court  shall  enter  judgment  according  to  the  principles  of  the  ^-  ^- 1^^,  §  9. 

6  common  law. 


If  the  attorney  general  does  not  intervene,  and  the  court  J"^«™„%°*- ,  „ 

loOl,  Zoo,   §  DU. 


Section  10. 
finds  that  the  respondent  has  exercised  a  franchise  or  privilege  not  con-  ism!  312!  §  47! 
ferred  by  law,  judgment  of  forfeiture  shall  not  be  entered,  but  judgment  p.'  s.'  ise,'  I  23! 
shall  be  entered  that  the  corporation,  or  the  persons  claiming  to  be  such,  '  "  -  * '  ■ 
be  perpetually  excluded  from  the  exercise  of  such  franchise  or  privilege, 

6  and  that  the  directors,  managers  or  agents,  guilty  of  the  usurpation,  pay 

7  the  costs  of  the  complainant. 


1  Section  11.     If  the  court  finds  that  the  respondent  has  not  exercised  ^34^°'"^"'°''^ 

2  a  franchise  or  privilege  not  conferred  by  law,  he  shall  recover  costs. 

1852,  312,  §  48.  G.  S.  145,  §  23.  P.  S.  186,  §  24.  R.  L.  192.  §  11. 


costs. 
1851,  233. 
§§  61,  62. 


1 


Section  12.     The  supreme  judicial  court  shall  have  jurisdiction  of  agi°nTt'pe°-^ 

2  informations  in  the  nature  of  quo  warranto  filed  bv  the  attornev  general  sons  holding 

111-  1    •      •  I  •    I  'ill  o?  *  public  omce, 

3  against  a  person  holding  or  claiming  the  right  to  hold  an  oince  or  em-  etc. 

4  ployment,  the  salary  or  compensation  of  which  is  payable  by  the  com-  r.  l.  i92,  §  12. 

5  monwealth,  a  county,  city  or  town.  les  Mass.  446.  225  Mass.  372. 


1  Section  13.     This  chapter  shall  not  affect  the  duty  of  the  attorney  Effect  of 

2  general  to  proceed  in  all  cases  in  which  he  might  otherwise  act.  isIi.ms,  §  64. 

1852.  312.  5  50.  R.  L.  192,  §  13.  167  Mass.  424. 

G.  S.  145,  §  24.  3  Gray,  116.  170  Mass.  71. 

P.  S.  186,  §  25. 


CHAPTER  -250. 

WRITS   OF  ERROR,   VACATING   JUDGMENT,   WRITS  OF   REVIEW. 


Sect. 

writs  of  error. 

1.  Writs  of  error. 

2.  Proceedings. 

CIVIL    CASES. 

3.  Judgments  reviewable  on  writ  of  error. 

4.  Judgments  not  reviewable  on  writ  of 

error. 


Sect. 

5.  Limitation  of  time  for  writ  of  error. 

6.  Stay  of  execution. 

7.  Filing  of  bond,  and  its  effect. 

8.  Costs  and  damages. 

CRIMINAL    CASES. 

9.  Judgments  reviewable  on  writ  of  error. 
10.  Voiiuo  of  writ. 


2616 


WRITS   OF   ERROR. 


[Chap.  250. 


Sect. 

11.  Writ  of  error  in  capita!  case. 

12.  Proceedings    upon    reversal    of    judg- 

ment. 

13.  Validity  of  con\-iction  not  affected  by 

age. 

V.iCATING    JUDGMENT. 

14.  Vacating  judgment. 

15.  Petition  to  vacate  judgment. 

16.  Order  of  notice  and  supersedeas. 

17.  Bond. 

IS.  Judgment     vacated     without  security, 
when. 

19.  Terms  on  petitioner. 

20.  Discharge   of   attachment,    bond,   etc., 

after  judgment  vacated. 


Sect. 


■WRIT3    OF    REVIEW. 


21.  Writ  of  re\"iew  as  of  right. 

22.  Writ  of  reriew  upon  petition. 

23.  Order  of  notice  and  supersedeas. 

24.  Bond. 

25.  Supersedeas  without  security,  when. 

26.  Terms. 

27.  Writ  of  re\new,  how  and  when  sued  out. 

28.  Form  of  writ  of  re\aew. 

29.  Service  of  writ. 

30.  .\ttachment  on  writ. 

31.  Procedure  upon  joinder  of  issue. 

32.  Procedure  upon  non-joinder  of  issue. 

33.  Judgment  upon  review. 

34.  Costs. 

35.  Procedure  in  replevin,  etc. 

36.  One  of  several  defendants  may  review. 


Writs  of  error. 
R.  S.  112,  §  10. 
G.  S.  146,  §  1. 
P.  S.  187,  §  1. 
E.  L.  193,  §  1. 


WRITS    OF   ERROR. 

Section  1.     ^Vrits  of  error  in  civil  and  criminal  cases  shall  issue  as  of  1 

course  from  and  be  returnable  to  and  be  heard  and  determined  by  the  2 

supreme  judicial  court.  235  Mass.  304.  3 


Proceedings. 
R.  S.  112,  §  15. 
G.  S.  146,  §  IS. 
P.  S.  187,  5  15. 
R.  L.  193,  §  2. 
5  Met.  334. 
141  Mass.  194. 
168  Mass.  297. 
170  Mass.  152. 


Section  2.  The  proceedings  upon  writs  of  error,  as  to  the  assign- 
ment of  errors,  the  scire  facias,  pleadings,  judgment  and  all  other  matters 
not  expressly  provided  for,  shall  be  according  to  the  course  of  the  com- 
mon law  as  modified  by  practice  and  usage  in  the  commonwealth  and 
by  the  general  rules  of  the  supreme  judicial  court.  200  Mass.  40s. 


Judgments 
reviewable 
on  writ  of 
error. 

R.  S.  82,  §  20. 
1840,87,  §4. 
G.  S.  146,  §  2. 
P.  S.  1S7,  §  2. 
R.  L.  193,  §  3. 


CniL    C.\SES. 

Section  3.  A  judgment  in  a  civil  action  may  be  re-examined,  re- 
versed or  affirmed  upon  a  vrrit  of  error  in  the  county  where  it  was 
rendered  for  any  error  in  law  or  in  fact,  except  as  hereinafter  provided. 
If  tlie  judgment  is  reversed,  such  judgment  shall  be  rendered  as  the 
court  below  should  have  rendered. 


10  Met.  172. 
SCush.eiO. 
10  Gush.  415. 


9  Gray,  311. 
4  .\Uen,  94. 
152  Mass.  585. 


154  Mass.  157. 

155  Mass.  86. 
164  Mass.  239. 


Judgments  not 
reviewable  on 
writ  of  error. 
R.  S.  100,  §  24. 
1851,233. 
§§ 114,  115. 
1852.312, 
§§  77,  78. 
G.  S.  146, 
§13.4. 
P.  S.  187.  §  3. 
R.  L.  193.  §  4. 
3  Met.  372. 
7  Met.  590. 
13Grav,392. 
171  ilass.  563. 
176  Mass.  48. 


Section  4.  A  judgment  in  a  civil  action  shall  not  be  reversed  on  a 
writ  of  error  for  error  arising  upon  a  plea  or  answer  in  abatement  or  for 
a  defect  of  form  which  might  by  law  have  been  amended;  nor  by  reason 
of  a  mistake  relative  to  the  venue  of  the  action;  nor  because  the  judg- 
ment is  not  in  conformity  with  the  pleadings,  if  it  is  in  conformity  with 
the  verdict;  nor  for  any  error  in  law  if  the  defendant  appeared  and  a 
verdict  was  rendered,  unless  it  occurred  after  verdict.  This  section 
shall  not  prevent  either  party  from  assigning  an  error  affecting  the 
jurisdiction  of  the  court.  206  jiass.  408. 


Limitation  of 
time  for  WTit 
of  error. 
1 805,  35. 
R.  S. 112, 
§5  19,20. 
G.  S.  146. 
§§5,6. 
P.  S.  187,  §  4. 


Section  5.     A  judgment  in  a  civil  action  shall  not  be  reversed  upon  1 

a  writ  of  error,  unless  the  writ  is  sued  out  within  six  years  after  the  entry  2 

thereof;    but  if  an  action  of  contract  or  writ  of  scire  facias  has  been  3 

brought  thereon,  the  writ  of  error  may  be  sued  out  Mithin  six  years  after  4 

the  briuEcing  of  such  action  or  writ.  R.  l-  193,  i  s.  5 


Chap.  250.]  writs  of  error.  2617 

1  Section  6.     A  writ  of  error  shall  not  stay  or  supersede  the  execution,  stay  of 

2  unless  the  plaintiff  in  error  or  a  person  in  his  behalf  gives  bond  to  the  r°s"iT2,' 

3  defendant,  with  one  or  more  sureties,  conditioned  that  the  plaintiff  shall  ^  "ill", 

4  prosecute  his  writ  to  effect,  and  shall  pay  and  satisfy  such  judgment  as  Pl'fsj  5  5 

5  mav  be  rendered  thereon.    The  sufficiency  of  the  sureties  and  the  amount  ?•  l.  i93'  s  0 

1  Al&ss   15G 

6  of  the  bond  shall  be  determined  by  a  justice  of  the  supreme  judicial 

7  court  or  by  the  clerk  from  whose  office  the  writ  issued. 

1  Section  7.     Such  bond  shall  be  filed  in  the  clerk's  office  for  the  use  Filing  of  bond, 

2  of  the  defendant  in  error  and  no  execution  shall  be  thereafter  issued  upon  i^i!  n2'!§°i3. 

3  the  judgment  while  the  writ  of  error  is  pending.     If  execution  has  been  p.  f;  1I7';  |  e. 

4  already  issued,  the  clerk  shall  make  an  entry  of  the  issuing  of  the  writ  of  ^-  ^-  ^^^-  ^  "■ 

5  error  and  of  the  filing  of  the  bond,  and  issue  a  certificate  thereof;    and, 

6  after  notice  of  such  entry  to  the  officer  holding  the  execution,  all  further 

7  proceedings  thereon  shall  be  stayed. 

1  Section  S.     The  prevailing  party  shall  be  entitled  to  costs,  and,  if  2°n^l  l"'^ 

2  the  judgment  is  affirmed,  the  court  shall  award  to  the  defendant  in  error  g  |- 112.  |  J*- 

3  damages  for  his  delay  at  a  rate  of  not  less  than  six  nor  more  than  twelve  p.  s.' is7,' §  7.  ' 

4  per  cent  a  year  on  the  amount  recovered  by  the  former  judgment,   and  1  Mass.  si, 

5  mav  award  him  double  costs.  4  Mass.  436.  6  Mass.  4.  208,411,443. 


criminal   CASE.S. 

1      Section  9.     A  judgment  in  a  criminal  case  may  be  re-examined  and  ■'"4^™''^^ 


reviewable  on 
writ  of  error. 
1S32,  130,  §  5. 


2  reversed  or  affirmed  upon  a  writ  of  error  for  any  error  in  law  or  in  fact-       ^"t  °'  "''°'^ 

R.  S.  82,  §31.  G.S.  146,  §11.  3  Gush.  212. 

1S40,  87,  §  4.  P.  S.  187,  §  8.  158  Mass.  164. 

1842,  54.  R.  L.  193,  §  9.  188  Mass.  443. 

1  Section  10.     Writs  of  error  in  such  cases  may  be  brought  at  any  time  venue  of  writ. 

2  after  judgment  and  may  be  entered  in  any  county.    After  the  writ  has  §f^",'|.^' 

3  been  returned,  the  court  shall  examine  the  case  without  delay,  but  may  p.  1;  il";  |  g."' 

4  adjourn  the  examination  from  time  to  time. 

R.  L.  193.  §  10.  5  Met.  334. 

1  Section  11.     A  writ  of  error  upon  a  judgment  for  a  capital  crime  writ  of  error 

2  shall  not  issue,  unless  allowed  bj^  a  justice  of  the  supreme  judicial  court  n.'^i^iu.'^^''^' 

3  after  notice  to  the  attorney  general  or  other  attorney  for  the  common-  q  s'^hI, 

4  wealth;   but  a  writ  of  error  upon  a  judgment  in  any  other  criminal  case  p^,|^i|f' 

5  shall  issue  as  of  course,  but  it  shall  not  stay  or  delay  the  execution  of  the  |§  ^j^^ls  s  n 

6  judgment  or  sentence,  unless  by  an  express  order  of  a  justice  of  the 

7  supreme  judicial  court,  who  may  make  a  further  order  for  the  custody  of 

8  the  plaintiff  in  error  or  for  releasing  him  on  bail. 

1  Section  12.     If  a  final  judgment  is  reversed  by  reason  of  error  in  the  Proceedings     ■ 

2  sentence,  such  judgment  shall  be  rendered  in  the  case  as  the  court  below  "f'i'udKment' 

3  should  have  rendered,  or  it  may  be  remanded  for  that  purpose  to  said  \llf^  l^\  ^  ^' 

4  court.     If  the  plaintiff  in  error  is  discharged,  the  costs  shall  be  paid  by  jj-  %li}' 

5  the  county  where  he  was  convicted. 

P.M.  187.  §§  13, 14.  107  Mass.  194.  224  Mass.  39. 

R.  L.  193.  §  12.  107  Mass.  11.  177  U.  S.  155. 

1  Gush.  302.  172  Mass.  204.  1  Op.  A.  G.  459. 

1  Section  13.     Upon  a  writ  of  error  or  other  proceeding  to  reverse  or  validity  of 

2  avoid  a  con\iction  of  a  crime  or  to  obtain  the  discharge  of  a  person  \\ho  afflcted'byTge. 


2618 


VACATING   JUDGMENT. 


[Chap.  250. 


1892, 266. 
R.  L.  193, 


13. 


is  held  in  custody  thereunder,  the  fact  that  he  was  under  the  age  of  seven- 
146  Mass.  4S9.   tccn  at  the  time  of  tlie  conviction  shall  not  affect  the  validity  of  the 
conviction  nor  entitle  the  person  to  be  discharged. 


Vacating 
judgment. 
1875,  33. 
P.  S.  187,  §  17. 
1893,  396,  §  33. 
1895,  234,  §  1. 
R.  L.  193,  §  14. 
118  Mass.  61. 
145  Mass.  18. 
151  Mass.  321. 
154  Mass.  157. 


VACATING  JUDGMENT. 

Section  14.  If  final  judgment  has  been  rendered  in  a  civil  action, 
the  court  in  which  it  was  entered  may,  within  three  months  thereafter, 
if  the  execution  has  not  been  satisfied  in  whole  or  in  part,  Aacate  it,  upon 
the  motion  in  writing  of  the  prevailing  part.v,  and  dispose  of  the  case  as 
if  it  had  not  been  entered.  Such  motion  shall  be  filed  in  the  case  and, 
except  by  special  order  of  the  court,  no  bond  shall  be  required. 


182  Mass.  443. 


226  Mass.  14. 


235  Mass.  304. 


236  Mass.  225. 


Petition  to  va- 
cate judgment. 
1875,  33. 
P.  S.  187, 
§§  17,  18. 
1893,  396. 
1895,  234. 
R.  L.  193, 
141  Mass.  20. 
151  Mass.  321. 
155  Mass.  5S1. 


§  33. 

§2. 

,  §  13. 


Section  15.  If  a  final  judgment  has  been  entered  and  the  execution 
has  not  been  satisfied  in  whole  or  in  part,  either  party,  or  any  one  or  more 
of  several  plaintiffs  or  defendants,  within  one  year  thereafter  may  file 
in  the  court  in  which  such  judgment  was  rendered  a  petition  to  vacate 
it.  In  the  supreme  judicial  or  the  superior  court,  the  petition  shall  be 
filed  in  the  county  A\here  the  judgment  was  entered. 


158  Mass.  381. 
165  Mass.  238. 


171  Mass.  292. 
175  Mass.  558. 


187  Mass.  468. 
210  Mass.  578. 


223  Mass.  4.S9. 
233  Mass.  483. 


Order  of  notice 
and  super- 
sedeas. 
1875,  33. 
P.  S.  187,  §  18. 
1893,  396,  §  33. 
1895,234,  §  3. 
R.  L.  193,  §  16. 
168  Mass.  445. 
171  Mass.  292. 


Section  16.  The  court  may  thereupon  order  notice  thereof  return- 
able at  such  time  and  to  be  served  in  such  manner  as  it  may  direct,  and 
may  issue  a  stay  or  supersedeas  of  an  execution  issued  on  such  judgment 
and  an  order  for  a  return  thereof  with  a  certificate  of  the  proceedings 
thereon.  Upon  the  hearing  of  such  petition,  the  court  may  vacate  such 
judgment,  and  dispose  of  the  case  as  if  the  judgment  had  not  been 
entered. 


Bond. 
1875,  33. 
P.  S.  187, 
§§  19,39. 
1888,  405,  I  3. 
1893,  396,  §  33. 
1895,  2.34,  §  4. 
R.  L.  193,  §  17. 
148  Mass.  596. 
131  Mass.  321. 
156  Mass.  359. 
161  Mass.  301. 
179  Mass.  107. 
187  Mass.  468. 
231  Mass.  409. 


Section  17.  Except  as  hereinafter  provided,  the  petitioner  shall, 
before  judgment  is  vacated  under  such  petition  and  before  execution 
is  stayed  or  superseded,  give  bond  to  the  adverse  party  with  security 
approved  by  the  court,  conditioned,  if  the  obligor  is  the  prevailing  party, 
that  if  final  judgment  shall  be  thereafter  rendered  for  the  obligee,  the 
obligor  shall  pay  his  costs  and,  if  the  obligee  is  the  prevailing  party,  that 
if  the  judgment  is  not  vacated  on  said  petition,  the  obligor  shall  satisfy 
said  judgment  and  all  costs  accrued  on  any  execution  issued  thereunder, 
and  that  if  it  is  so  vacated,  he  shall  satisfy  the  execution  that  shall  issue 
in  favor  of  the  obligee  on  any  judgment  thereafter  rendered  in  said 
action,  or  if  a  special  judgment  shall  be  entered  in  favor  of  the  obligee  in  11 
accordance  with  section  twenty-six  of  chapter  two  hundred  and  thii-ty-  12 
five,  he  will  pay  to  the  plaintiff  within  thirty  days  after  the  entry  of  13 
such  judgment  the  amount  for  which  it  shall  be  entered.  14 


Judgment  va- 
cated without 
security,  wlien. 
1882, 249. 
1895,  234,  §  5. 
R.  L.  193,  §  IS. 
187  Mass.  468. 
231  Mass.  409. 


Section  18.  If  the  petitioner  had  no  actual  knowledge  before  the 
judgment  was  entered  that  the  action  was  pending  against  him  and 
there  was  no  attacliment  of  property  in  the  original  action,  the  judgment 
may  be  vacated  and  the  execution  stayed  or  superseded  without  se- 
curity; but  if  there  was  such  attachment,  the  amount  of  the  bond  shall 
be  fixed  at  the  actual  value  of  the  property  attached,  as  agreed  upon  by 
the  parties  or  as  determined  by  the  court  upon  a  summary  hearing  after 
notice  to  the  adverse  party. 


Chap.  250.]  wtiits  ob^  review.  2619 

1  Section  19.    The  court  may  impose  costs  or  terms  upon  either  party  Terms  on 

2  to  a  motion  or  petition  to  vacate  a  judgment.  petitioner. 

187.5.3.3.  P.  S.  187,  §19.  1895,  234,  §6.  R.  L.  193,  §  19. 

1  Section  20.     The  hability  upon  an  attachment  made,  bond  given  or  Disch.-ii-ge  of 

2  bail  taken  in  the  original  action  shall  not  continue  after  the  original  bond,™™'' 

3  judgment  has  been  vacated,  except  that  if  a  judgment  is  vacated  under  vacated'.'^'""'"' 

4  section  fourteen  within  thirty  days  after  the  entry  thereof,  such  liability  p^'tf'flj  ^  20 

5  shall,  if  a  subsequent  judgment  is  rendered,  continue  during  such  time  J^^l' wi'llo 

6  thereafter  as  it  would  have  continued  upon  the  original  judgment  had  I'-i  Mass.' 301. ' 

„    .,  ,   ,  ,      ,  ^  fe  J        O  226  Mass.  14. 

I   it  not  been  vacated. 

WRITS   OF   REVIEW. 

1  Section  21.     If  judgment  is  rendered,  as  provided  in  chapter  two  writ  of  review 

2  hundred  and  twenty-seven,  upon  the  default  of  a  defendant  upon  whom  ilss-pf  10,  §  s. 

3  service  has  not  been  made  by  reason  of  his  being  out  of  the  commonwealth  Jgf  7'  If 

4  or  by  reason  of  his  residence  being  unknown,  he  may,  within  one  year  r^|'|.?'5  4. 

5  after  the  judgment,  as  of  right  and  without  any  petition  therefor,  take  99.  §  1?      ' 

6  a  writ  of  review  out  of  the  court  in  which  the  judgment  was  rendered.       p.  s.'  isi,'  §  21.' 

1895,  234,  §  8.  3  Gray,  508,  104  Mass.  367. 

R.  L.  193,  §  21.  4  Allen,  94.  165  Mass.  238. 

1  Section  22.     After  the  entry  of  final  judgment  in  a  civil  action,  the  writ  of  review 

2  court  in  which  the  judgment  was  entered  may,  upon  petition,  grant  a  c\  l"  i52,'''§°i'; 

3  writ  of  review.    If  judgment  was  rendered  in  the  absence  of  the  petitioner  f  701-2^6. 5 1. 

4  and  without  his  knowledge,  the  petition  shall  be  filed  within  one  year  jl?^;  ||  |  \- 

5  after  the  petitioner  first  had  notice  of  the  judgment;  otherwise,  within  JZ?!??'^  ^■ 

6  one  year  after  the  judgment  was  rendered.     In  the  supreme  judicial  §§  1-3.  ' 

7  or  the  superior  court,  the  petition  shall  be  filed  in  the  county  where  the  §§  2,'3. ' 

8  judgment  was  entered.  igi7,  ss.  1822, 61. 

R.  S.  92,  §  5;  10  Gray,  92.  147  Mass,  240. 

99,  §§  18-20,  26-28.  8  Allen,  23,  568.  151  Mass.  17. 

1852,  126.  104  Mass.  367.  155  Mass.  581. 

G.  S.  146,  |§  21,  21.  106  .Mass.  514.  157  Mass.  306. 

P.  S.  187,  §§  22,  25.  Ill  Mass.  2S1.  164  Mass.  239. 

1893,  396.  §  33.  114Mass.54.  165  M.ass.  234.  238. 

1895,  234,  §9.  116  Mass.  313.  169  Mass.  167. 

R.  L.  193,  §  22.  117  Mass.  291.  170  .Mass.  360. 

1917.  326.  126  Mass.  523.  1S2  Mass.  443. 

14  Mass.  360.  135  Mass.  122.  218  Mass.  495. 

19  Pick.  60.  136  Mass.  416.  220  Mass.  137. 

1  Met.  288.  140  Mass.  421.  235  Mass.  114. 

3  Gray,  136,  415.  146  Mass.  465.  205  U.  S.  141. 

1  Section  23.     After  the  filing  of  the  petition  for  a  writ  of  ^e^•iew,  the  order  of 

2  court  may  order  notice  thereof  returnable  at  such  time  and  to  be  served  si?pe'rsed''eas. 

3  in  such  manner  as  it  directs,  and  may  issue  a  stay  or  supersedeas  of  an  \lllzl[  \l[  | }; 

4  execution  on  such  judgment  and  an  order  for  the  return  thereof  to  the  §;  |;  jlisf §^22. 

5  court  with  a  certificate  of  the  proceedings  thereon. 

1875,  33.  P.  S.  187,  §§  18,  23.  1S95,  234.  §  10.  R.  L.  193,  §  23. 

1  Section  24.     Except  as  hereinafter  provided,  the  petitioner  for  a  Bond. 

2  writ  of  review  shall,  before  execution  is  stayed  or  superseded,  give  bond  1751-2!  11',  §  l 

3  to  the  adverse  party  with  security  approved  by  the  court,  conditioned  §|*i'';|,''6. 

4  that  if  a  writ  of  review  is  not  granted  the  obligor  shall  satisfy  the  judg-  Jf 'J'||- 

5  ment  originally  entered  and  all  costs  accrued  on  any  execution  issued  §§  12. 22, 23^^ 

6  thereon,  and  that  if  a  writ  of  review  is  granted,  he  will  forthwith  prose-  i.sVs,  33,' 

7  cute  a  review  to  final  judgment  and  will  satisfy  such  execution  as  may  be  p.'s.  is7. 

8  issued  against  him  on  the  review,  or  if  a  special  judgment  shall  be  entered  i,s,ss!'4'u5,  §  3. 

9  against  him  under  section  twenty-six  of  chapter  two  hundred  and  thirty-  ^^l[  193;  1 2!; 


2620 


■n-RITS    OF   RE-\TE-U'. 


[Chap.  250. 


10  Allen,  346, 
14  Allen,  66. 


five,  he  will  pay  to  the  plaintiff  within  thirty  day.s  after  the  entry  of  10 
108  Mass.  356.    gucli  judgment  the  amount  for  which  it  shall  be  entered.  11 

111  Mass.  2/9.  J        r? 


118  Mass.  470. 


148  Mass.  562. 


Supersedeas 
without  secu- 
rity, when. 
1895.  234,  §  12. 
R.  L.  193,  §  25. 


Section  2.5.  If  the  petitioner  had  no  actual  knowledge  before  the 
judgment  was  entered  that  the  action  was  pending  against  him  and 
there  was  no  attachment  of  property  in  the  original  action,  the  execution 
may  be  stayed  or  superseded  without  security;  but  if  there  was  such 
attachment,  the  amount  of  the  bond  shall  be  fixed  at  the  actual  value  of 
the  property  attached,  as  agreed  upon  by  the  parties  or  as  determined 
by  the  court  upon  a  summary  hearing  after  notice  to  the  adverse  party. 
Except  as  provided  in  this  and  the  preceding  section,  the  execution  shall 
not  be  stayed  or  superseded  by  the  W'rit  of  review. 


1788?  n.  5  5.         Section  26.     The  court  may  grant  a  vrcit  of  review  upon  terms  and  if     1 
Q- 1;  ?46,\^22.  t^^  review  is  not  granted  may  impose  costs.  2 

1875,33.  P.  S.  187,  §19.  1S95,  234.  §  13.  R.  L.  193,  §  26. 


Writ  of  re- 
view, how  and 
when  sued  out. 
1701-2,6,  §  1. 
1788,  11, 
§§1,3. 
1791,17,152,3. 


Section  27.  The  writ  of  review  shall  be  sued  out  within  three  months 
after  the  order  granting  the  petition;  otherwise,  such  order  and  any 
stay  or  supersedeas  previously  ordered  in  the  proceedings  shall  be  thereby 
vacated  and  the  original  judgment  shall  be  in  full  force. 

p.  S.  187.  §  26. 
1895,  234,  §  14. 
R.  L.  193,  §  27. 


1822,  Gl. 
R.  S.  99,  § 
G.  S.  146, 


148  Mass.  562. 
163  Mass.  528. 
226  Mass.  126. 


Form  of  writ 
of  review. 
R.  S.  99,  §  3. 
G.  S.  146,  §  26. 
P.  S.  187,  §  27. 
1895,  234,  §  15. 
R.  L.  193,  §  28. 


Section  28.  It  shall  not  be  necessary  to  recite  at  length  the  decla-  1 
ration  and  other  proceedings  in  the  original  action,  but  the  form  of  writ  2 
of  review  shall  be  substantially  as  follows :  3 

Summon  A  to  answer  B  in  the  re\iew  of  an  action  of  contract  (tort  or  reple\an), 
brought  by  said  A  against  said  B,  in  whicli  action  said  A  by  the  consideration  of 
the  justices  of  our  coui-t,  held  at  C  wthin  and  for  our  said  county  of  M  on  the 
day  of  ,  recovered  judgment  against  said  B  for  the 

sum  of  doUars,  debt  (or  damages),  dollars,  costs,  which 

judgment  said  B  says  is  'WTong  and  erroneous. 

Or  the  former  judgment  maj'  be  briefly  described  in  any  manner  4 
provided  by  the  rules  of  the  courts.  5 


Senaceof  SECTION  29.     The  Writ  shall  be  served  in  the  same  manner  as  an 

178666^^'  ^ "'  original  writ,  except  that  if  the  defendant  is  not  an  inhabitant  of  the 
179V  so'  5  2  commonwealth,  or  is  not  found  therein,  it  may  be  served  on  the  person 
R.s.'99,'§5^  who  appeared  as  his  attorney  in  the  original  action,  and  the  court  may 
p.' s.' 187,' §  29.'  continue  the  case  to  enable  the  absent  party  to  appear  and  answer. 

1895,  234,  §  17.  R.  L.  193,  §  30. 


Section  30.     If  the  writ  is  sued  out  by  the  original  plaintiff,  the  de- 
fendant's ffoods  and  estate  mav  be  attached  as  they  might  have  been 


Attachment 

on  writ. 

R.  S.  99. 

§§  6,  12.  . 

g|-  ".9'|  29-  in  the  original  action,  and  for  this  purpose  the  writ  of  review  may  be  so 

iS9"5. 234,  §  18.  framed  as  to  require  an  attachment  in  the  common  form,  and  that  the 

defendant  be  summoned.    An  attachment  made,  bond  given  or  bail  taken 

in  the  original  suit  shall  not  be  held  to  satisfy  the  judgment  on  the 

review. 


Procedure 
upon  joinder 
of  issue. 
R.  S.  99,  §  7. 


Section  31.     If  an  issue  of  fact  was  joined  in  the  original  action,     1 
the  case  shall  be  tried  on  the  review  upon  the  same  issue,  unless  the  court    2 


Chap.  251.] 


ARBITRATION. 


2621 


■3  allows  such  amendments  of  the  original  pleadings  by  either  party  as  g,  s.  hh,  §  .^o. 
4  might  have  been  allowed  in  the  original  action.  '  '  ^*^'    ^^' 


1S95,  234,  §  IB. 
K.  L.  103,  §  32. 


7  Mass.  472. 
3  Cush.  3S1. 


3  Grav,  415. 
117  Mass.  291. 


1  Section  32.     If  judgment  in  the  original  action  was  rendered  without  Procedure 

2  a  joinder  of  issue,  the  parties  shall  plead  or  answer  upon  the  review  joinder  of  issue. 

3  in  like  manner  as  they  might  have  done  in  the  original  action,  and  the  i7S6,cii,  §2. ' 

4  cause  shall  be  tried  upon  any  issue  of  fact  or  law  joined  upon  such  plead-  r^^I'  *^ 

5  ings  or  answer. 

p.  S.  1S7,  §  32. 


1895,  234,  §  20. 


G.  S.  146,  §  31. 
R.  L.  193,  5  33. 


99, 
8,9. 


S  Cush.  299. 


1  Section  33.     Judgment  shall  be  given  upon  the  review  as  the  merits  judgment 

2  of  the  case  upon  the  law  and  the  evidence  require.    If  the  amount  re-  nio-i!"!."' 

3  covered  by  the  plaintiff  in  the  original  action  is  reduced  on  the  review,  sj'l?.'!,''' 

4  the  original  defendant  shall  have  judgment  and  execution  for  the  differ-  \l^f  ^l  §  *• 

5  ence,  with  costs;  or,  if  the  former  judgment  has  not  been  satisfied,  one  IVfo^ji  ,. 

6  judgment  may  be  set  off  against  the  other,  and  an  execution  issued  for  g.  s.  'iw. 

&S   "iO     "iS 

7  the  balance.    If  the  original  plaintiff"  recovers  a  greater  amount  than  was  p.  s.'i87,' 

8  awarded  to  him  in  the  original  action,  he  shall  have  judgment  and  execu-  is95,'234, 

9  tion  for  the  excess.  r.  l.  193,  §34.  19  Pick.  go.  §§21,23. 


11  Met.  266. 
3  Allen,  472. 


5  Allen,  582. 
117  Mass.  281. 


133  Mass.  587. 
151  Mass.  321. 


1  Section  34.     The  prevailing  party   shall   recover   costs   unless   the  Costs. 

2  court  in  granting  the  review  otherwise  orders.  ^'^  ' 

1788,11,  §5.  G.  S.Hfi,  §  33.  R.  L.  193, 


1817,85. 

R.  S.  99,  §  11. 


G.  S.Hfi,  §  33. 
P.  S.  187,  §  34. 
1895,  234,  §  22. 


I  35. 
11  Met.  266. 
133  Mass.  587. 


Section  35.     In  actions  of  replevin  and  in  actions  in  which  a  set-off  f/°et^n'etc 
is  filed,  the  original  defendant  shall  be  considered,  relative  to  everything  S  |'- jffi^s'l- 
contained  in  sections  twenty-one  to  thirty-six,  inclusive,  as  a  plaintiff  p'.'s.'is7,'§36.' 
in  other  actions,  so  far  as  respects  any  damages  awarded  to  him  either  r.  £'.  193',  §  se. 
in  the  original  action  or  upon  the  review. 


1  Section  36.     If  judgment  was  recovered  against  several  defendants  One  of  several 

2  in  the  original  action,  one  or  more  of  them  may  review  in  like  manner  as  ruirrevw 

3  if  he  or  they  had  been  the  only  defendants,  and  if  the  amount  recovered  55'f.:6.'^' 

4  in  the  original  action  is  increased  or  reduced,  the  court  shall  make  such  jf '|'|| 


16. 


5  order  as  will  carry  into  effect  the  two  judgments  according  to  the  rights  p'iliS'liy' 

6  of  all  parties.  isos,  234,  §  25.  r.  l.  193,  §  37. 


CHAPTER    251. 


ARBITRATION. 


Sect. 

1.  Submission  of    controversies    to    arbi- 

tration. 

2.  Form  of  agreement. 

3.  Statement  of  specific  demands. 

4.  Effect  of  agreement  to  submit  all  de- 

mands. 

5.  Limit  of  time  for  making  award. 

6.  Revocation    of    submission.      Hearing 

ex  parte. 


Sect. 

7.  Hearing   by    all    the    arbitrators,    but 

award  by  majority. 

8.  Award  to  be  returned  into  court. 

9.  Proceedings  upon  such  return. 

10.  Powers  of  court  relative  to  award. 

11.  PajTnent  of  costs,  expenses,  etc. 

12.  Appeal  and  writ  of  error. 

13.  Fees  of  justice,  etc. 


2622 


ARBITRATION. 


[Chap.  251. 


Submission  of 
controversies 
to  arbitration. 
R.  S.  114,  §  1. 
G.  S.  147.  §  1. 


Section  1.  Controversies  which  might  be  the  subject  of  a  personal  1 
action  at  law  or  of  a  suit  in  equity  may  be  submitted  to  the  decision  of  2 
one  or  more  arbitrators,  as  provided  in  this  chapter.  3 


p.  S.  188,  §  1. 
R.  L.  194,  §  1. 
8  Mass.  1. 


2  Gray,  407. 
13  Grav.  298. 
113  Mass.  67. 


119  Mass.  490. 
140  Mass.  508. 
152  Mass.  41G. 


184  Mass.  534. 
192  Mass.  517. 
232  Mass.  267. 


Form  of 
agreement. 
1786,  21,  §  1. 
R.  S.  114,  §  2. 
G.  S.  147,  §  2. 
1863,  157,  §  2. 
P.  S.  188,  §  2. 
1899,  178.  §  5. 
R.  L.  194,  §  2. 
20  Pick.  480. 
6  Cush.  108. 
10  Cush.  114. 
8  Gray,  425. 
4  Allen.  17. 

100  Mass.  319. 

101  Mass.  359. 
113  Mass.  67. 
179  Mass.  261. 


Section  2.     The  parties  shall  appear  in  person  or  by  their  lawful  1 

agents  or  attorneys  before  a  justice  of  the  peace  or  special  commissioner  2 

and  shall  there  sign  and  acknowledge  an  agreement  in  substance  as  3 

follows:  4 

Know  all  men  that  , 

of  ,  and  ,  of 

,  hereby  agree  to  submit  the 
demand,  a  statement  whereof  is  hereto  annexed,  (and  all  other  demands  between 
them,  as  the  case  may  be,)  to  the  determination  of  and 

,  the  award  of  whom,  or  of  a  majority  of  whom, 
being  made  and  reported  within  one  year  from  this  day  to  the  superior  court  for  the 
county  of  ,  the  judgment  thereon  shall  be  final;   and 

if  either  of  the  parties  neglects  to  appear  before  the  arbitrators,  after  due  notice  given 
to  him  of  the  time  and  place  appointed  for  hearing  the  parties,  the  arbitrators  may 
proceed  in  his  absence.    Dated  this  day  of  in 

the  year 


The  justice  or  special  commissioner,  either  of  whom  may  be  one  of 
the  arbitrators,  shall  annex  to  the  agreement  a  certificate,  in  substance  as 
follows : 

ss.  .      Then    the    above  named  and 

personally  appeared,  (or  the  above  named 
personally,  and  said  by  , 

his  attorney,  appeared,  as  the  case  may  be,)  and  acknowledged  the  above  instrument 
by  them  signed  to  be  their  free  act.     Before  me, 

Justice  of  the  Peace  (or  Special  Commissioner). 


Statement  of 

specific 

demands. 

R.  S.  114.  §  3. 

G.  S.  147,  §  4. 

P.  S.  188,  §  3. 

R.  L.  194,  §  3, 


Section  3.  If  a  specific  demand  is  submitted  to  the  exclusion  of 
others,  it  shall  be  set  forth  in  the  statement  annexed  to  the  agreement; 
otherwise  it  shall  not  be  necessary  to  annex  any  statement  of  a  demand, 
and  the  submission  may  be  of  all  demands  between  the  parties  or  of 
all  demands  which  either  has  against  the  other.  The  submission  may 
be  varied  in  this  respect  in  any  other  manner,  according  to  the  agreement 
of  the  parties. 


Effect  of 
agreement  to 
submit  all 
demands. 
R.  S.  114,  §  4. 


Section  4.  An  agreement  to  submit  all  demands  shall  include  only  1 
such  as  might  be  the  subject  of  a  personal  action  at  law  or  of  a  suit  in  2 
equity.  G.  s.  147,  §  3.  p.  s.  iss,  §  4.  r.  l.  194,  §  4.  3 


Limit  of  time 
for  making 
award. 

R.  S.  114,  5  6. 
G.  S.  147,  §  5. 
P.  S.  188,  §  5. 
R.  L.  194,  §  5. 
13  Gray,  300. 
4  Allen,  17. 


Section  5.  The  time  within  which  the  award  shall  be  made  and  re- 
ported may  be  varied  according  to  the  agreement  of  the  parties,  but  no 
award  made  after  the  time  fixed  by  the  agreement  shall  have  any  legal 
effect,  unless  made  upon  a  recommitment  by  the  court  to  which  it  is 

reported.  l**  Mass.  les.  153  Mass.  361. 


Revocation 

of  submission. 

Hearing 

ex  parte. 

R.  S.  114,  §  5. 


Section  6.     Neither  party  may  revoke  the  submission  without  the  1 

consent  of  the  other;    and  if  cither  neglects  to  appear  after  due  notice,  2 

the  arbitrators  may  hear  and  determine  the  cause  ex  parte.  3 

G.  S.  147,  §  6.  P.  S.  188,  §  6.  R.  L.  194,  §  6.  221  Mass.  518. 


Chap.  2.51.]  arbitration.  2623 

1  Section  7.     All  the  arbitrators  shall  meet  and  hear  the  parties,  but  bearing  by 

2  an  award  by  a  majority  of  them  shall  be  valid,  unless  the  concurrence  arbitrators, 

3  of  all  is  expressly  required  in  the  submission.  by'maiority. 

R.  S.  lU,  §  11.  P.  S.  188.  §  7.  113  Mass.  67.  148  Mass.  367. 

G.  S.  147,  §  7.  R.  L.  194,  §  7.  135  Mass.  26.  221  Mass.  518. 

1  Section  S.     The  award  shall  be  delivered  by  one  of  the  arbitrators  Award  to  be 

2  to  the  court  designated  in  the  agreement,  or  shall  be  enclosed  and  sealed  cou"™*"* '°'° 

3  by  the  arbitrators  and  transmitted  to  the  court,  and  shall  remain  sealed  j^'^g'  fi\  1 7; 

4  until  opened  by  the  clerk.  g.  s.  147, 5  s. 

p.  S.  188,  §  8.  R.  L.  194,  §  8.  119  Mass.  489.  158  Mass.  69. 

1  Section  9.     The  award  may  be  returned  at  any  time  limited  in  the  Proceedings 

2  submission,  and  the  parties  shall  attend  without  any  express  notice  for  re'tmn.""'' 

3  that  purpose;    but  the  court  may  require  actual  notice  to  be  given  to  §!  I  il?!  i  9°' 

4  either  party  before  it  acts  upon  the  award.  p.  s.  i88,  §  9. 

R.  L.  194,  §  9.  5  Met.  2S7.  144  Mass.  165.  153  Mass.  361. 

1  Section  10.     The  court  shall  have  cognizance  of  the  award  in  the  Powers  of 

2  same  manner,  and  may  proceed  thereon,  as  if  it  had  been  made  by  to'award^'"'' 

3  referees  appointed  by  a  rule  of  court,  and  may  accept,  reject  or  recommit  r*|;  i}4^  ^' 

4  it  to  the  same  arbitrators  for  a  rehearing.     When  accepted  and  con-  ^^  |  ^-^^  ^  j^ 

5  firmed  by  the  court,  judgment  shall  be  rendered  thereon  as  upon  a  like  p-  s.  iss,'  §  lo. 

6  award  by  referees.  i  Cush.  389. 

11  Gush.  549.  115  Mass.  40.  130  Mass.  74. 

4  Allen,  20.  119  Mass.  490.  143  Mass.  316. 

6  Allen,  333.  121  Mass.  150.  151  Mass.  279. 

106  Mass.  365.  123  Mass.  129,  152  Mass.  416. 

109  Mass.  306.  190,  652,  587.  179  Mass.  261. 

1  Section  11.     If  there  is  no  provision  in  the  submission  relative  to  Payment  of 

2  costs  and  expenses,  the  arbitrators  may  make  an  award  relative  thereto,  p^'^esretc. 

3  including  compensation  for  their  own  services;  but  the  court  may  reduce  §_  |  \lf^  |  \j[ 

4  the  charge  for  compensation. 

P.  S.  188.  §  11.  113  Mass.  67.  147  Mass.  282. 

R   L.  194.  §  11.  135  Mass.  26.  153  Mass.  361. 

1  Section  12.    An  appeal  founded  on  matter  of  law  apparent  upon  Appeal  and 

2  the  record  shall  be  allowed  from  any  order  or  judgment  of  the  superior  i79\,°42^'^""^' 

3  court  on  an  award  made  under  this  chapter;   or  a  party  aggrieved  may  §  I  }J*'  |  }?■ 

4  bring  a  writ  of  error  for  any  error  in  law  or  fact  as  in  other  cases.    The  g  f^  \^^- 1 J^. 

5  supreme  judicial  court  shall  thereupon  render  such  judgment  as  the  io6  Mass!  365. 

6  court  below  ought  to  have  rendered. 

1  Section  13.    The  fees  of  the  justice  or  special  commissioner  for  the  Fees  of  justice, 

2  agreement  of  submission  and  acknowledgment  shall  be  forty  cents,  lyge,  21,  §  2. 

3  and  the  fees  in  court  shall  be  the  same  as  for  like  services  relative  to  an  g;  |;  }J|;  |  J|; 

4  award  made  under  a  rule  of  court. 

p.  S.  188,  I  13.  1899.  178,  §  6.  R.  L.  194,  §  13. 

REFERENCES. 

Arbitration,  under  insurance  policies  of  losses  by  fire,  Chap.  175,  §§  100,  101. 
in  probate  court  of  demands  for  and  against  estate,  Chap.  204,  §§  13,  14. 
of  claims  against  insolvent  estates  of  deceased  persons.  Chap.  198,  §  14. 
as  to  debts  due  to  executor  or  administrator  personally,  Chap.  197,  §  6. 
in  insolvency.  Chap.  216,  §  67. 


2624 


IMPROVEMENT   OF  LOW   LAND   AND   SWAMPS. 


[ClLiP.   252. 


CHAPTER    252. 

IMPROVEMENT   OF  LOW   LAND   AND   SWAMPS. 


Sect. 


IMPROVEMENT    OF    LOW    LAND. 


1.  Improvement  of  low  land,  etc. 

2.  Drainage  board;    members  to  receive 

no  compensation. 

3.  Investigation  by  drainage  board ;  annual 

report. 

4.  Survey  by  board  and  co-operation  by 

the  United  States. 

5.  Petition  to  the  board;   appointment  of 

district  drainage  commissioners  and 
their  compensation. 

6.  Formation  of  drainage  district. 

7.  Petition   to   county   commissioners   to 

bear  expense   in   the   first  instance. 
Provision  for  raising  money  therefor. 

8.  Powers  and  duties  of  the  commission- 

ers; acquiring  or  taking  of  land,  etc., 
and  recovery  of  damages  therefor. 

9.  No    prescriptive    right    to    additional 

water  power  or  water  supply,  etc. 
10.  Proceedings    when    commissioners    in- 
tend to  do  certain  acts  on  land  of 
person  not  a  party. 


Sect. 

11.  Payment  of  expenses  by  the  county. 

12.  Commissioners  to  make  returns  to  the 

assessors. 

13.  Commissioners    to    fix    amounts    due 

from  towns;   appeal. 

14.  Method  of  collecting  money  due  from 

towns. 

construction  of  ro.^ds,  etc.,  to  sw.\mps, 

ETC. 

15.  Roads  to  swamps  and  quarries. 

16.  Petition  and  security. 

17.  Notice  of  petition. 

18.  Lajing  out,  taking  and  damages. 

19.  .'Assessment  of  benefits. 

20.  Repairs. 

21.  Petition    to    mayor   and    aldermen    or 

selectmen. 

22.  Fees. 

23.  Appeal  to  county  commissioners. 


Improvement 

of  low  land, 

etc. 

1702.  11.  §  1. 

1795,  Ii2.  §  1. 

R.  S.  115.  §  I. 

G.  S.  148,  §  1. 


IMPKOVEMENT   OF   LOW   LAND. 

Section  1.  If  it  is  necessary  or  useful  to  drain  or  flow  a  meadow, 
swamp,  marsh,  beach  or  other  low  land  held  by  several  proprietors,  or 
remove  obstructions  in  rivers  or  streams  leading  therefrom,  such  im- 
provements may  be  made  as  provided  in  the  thirteen  following  sections. 

p.  S.  189.  §1.  16  Gray,  417. 


R.  L.  195.  5  1. 
1918,  289.  §  1. 


148  Mass.  1. 
154  Mass.  579. 


114  U.  S.  606. 
3  Op.  A.  G.  538. 


Drainage 
board ; 
members  to 
receive  no 
compensation. 

1918.  280,  §  2. 

1919,  350, 
§§34.90. 


Section  2.  One  member  of  the  department  of  public  health  desig- 
nated by  it,  and  one  member  of  the  department  of  agriculture  designated 
by  it,  shall  constitute  the  drainage  board,  in  the  twelve  following  sec- 
tions called  the  board.  Members  thereof  shall  receive  no  additional 
compensation. 


Investigation 
by  drainage 
board;  annual 
report. 
1917,212,  §  1. 

1918,  289,  §  2. 

1919.  98. 


Section  3.  The  board  may  investigate  the  question  of  utilizing  the 
wet  lands,  including  meadows,  swamps,  marshes,  beaches  and  other  low 
lands,  and  may  ascertain  what  lands,  if  any,  may  advantageously  be 
drained  for  agricultural  or  industrial  uses,  the  protection  of  the  public 
health,  the  utilization  of  deposits  therein,  or  for  other  purposes.  It  may 
publish  and  disseminate  facts  of  general  interest  ascertained  in  the  con- 
duct of  any  such  investigation,  and  may  make  and  publish  sur\-eys  of 
tracts  of  land  in  need  of  drainage,  showing  their  situation,  areas  and 
outlets,  the  best  methods  and  the  cost  of  draining  them,  the  uses  to 
which  they  are  best  adapted,  and  such  other  details  as  it  deems  advisa- 
ble.   It  shall  make  an  annual  report. 


IG. 
ass.  5S3, 


Chap.  252.]  improvement  of  low  land  and  swamps.  2625 

1  Section  4.     In  carrying  out  the  provisions  of  sections  one  to  fourteen,  Survey  by 

2  inclusive,  the  board  shall  seek  the  co-operation  and  assistance  of  the  cooperation 

3  United  States  department  of  agriculture,  and  may  employ  necessary  states."'"""' 

4  engineers,  assistants  or  other  agents,  who  may  enter  on  land  wliich  the  Jgjg'  |gg'  1 1- 

5  board  desires  to  survey  or  examine.  1919, 98. 

1  Section  5.     The  proprietors,  or  a  majority  in  interest  either  in  value  Petition  to  the 

2  or  area,  may  petition  the  board  setting  forth  their  desire  to  form  a  drain-  pofnuiSt  of 

3  age  district  as  provided  in  the  following  section,  stating  the  proposed  drlVnage  com- 

4  name  of  said  district,  the  necessity  for  the  same,  with  a  description  ^^^Tom-^"^ 

5  of  the  proposed  starting  point,  routes  and  termini  of  the  work  and  a  5'|S|''\'J°- 

6  general  description  of  the  lands  proposed  to  be  affected,  together  with  §§  i.'z. ' 

7  the  names  of  known  owners  of  said  lands.    And  if  the  purpose  of  such  §§  i.'s,  4. 

8  proprietors  is  the  repair  and  maintenance  of  ditches  or  other  work  there-  f§  2^.'f6, 13. 

9  tofore  constructed  under  any  law  of  the  commonwealth,  the  petition  shall  §|  f ;  "f ;  jo. 

10  give  a  general  description  of  the  same  with  such  particulars  as  may  be  IfSe'llg 

11  deemed  important.     Upon  the  receipt  of  said  petition  the  board  shall  fjfg*!'  ,o 

12  proceed,  at  the  expense  of  the  commonwealth,  to  make  such  surveys  of  R.  l.  I'os', 

13  the  land  proposed  to  be  drained  as  it  shall  deem  necessary,  and  shall  lois,  2S9', 

14  further  ascertain  by  such  surveys  or  other  investigations  the  need  of  llg'A 

15  any  drainage  required  for  the  benefit  of  the  public  health,  agricultural 

16  and  other  uses  to  which  the  land  can  be  put  after  drainage,  and  its  value 

17  for  such  uses  after  drainage,  and  in  general  the  advisability  of  under- 

18  taking  the  proposed  drainage  or  maintenance,  and  shall  make  recom- 

19  mendations  in  relation  thereto,  including  a  statement  of  what  portion, 

20  if  any,  of  the  expense  should  be  borne  by  the  commonwealth  on  account 

21  of  the  cost  of  that  part  of  the  improvement  relating  to  the  public  health; 

22  and  if  the  board  approves  of  the  undertaking,  it  shall  issue  a  certificate 

23  appointing  three,  five  or  seven  district  drainage  commissioners,  who  shall 

24  be  sworn  to  the  faithful  performance  of  their  duties,  and  fix  their  com- 

25  pensation,  which  shall  not  exceed  five  dollars  a  day,  while  in  conference, 

26  and  their  necessary  traveling  expenses  while  performing  their  duties,  and 

27  authorize  said  commissioners  to  form  a  drainage  district  under  the  fol- 

28  lowing  section.    Any  such  commissioner  may  be  removed  by  the  board 

29  for  cause.    For  the  purposes  of  this  and  the  nine  following  sections,  a 

30  mortgagor  or  mortgagee  in  possession  shall  be  deemed  a  proprietor. 

1  Section  6.     The  district  drainage  commissioners,  in  the  eight  follow-  Formation 

2  ing  sections  called  the  commissioners,  after  being  sworn,  shall  call  a  dLt^kt""^^ 

3  meeting  of  the  proprietors  of  the  land  to  be  improved  by  giving,  in  such  i^'S'^so.  §  •'>- 

4  manner  as  the  board  may  order,  a  notice  to  each  known  proprietor,  signed 

5  by  the  commissioners  and  setting  forth  the  time  and  place  of  the  meeting 

6  and  the  purpose  of  organizing  under  sections  four,  eight  and  nine   of 

7  chapter  one  hundred  and  fifty-eight  a  drainage  district  to  carry  out  the 

8  proposed  improvements  and  maintenance. 

1  Section  7.     The  commissioners,  after  the  certificate  of  organization  Petition  to 

2  of  such  district  has  been  issued  by  the  state  secretary,  shall  petition  the  mi^s'ime°s"to 

3  county  commissioners  of  the  county  where  the  greater  part  of  the  land  hl^thrtrer' 

4  lies,  annexing  a  certified  copy  of  the  petition  under  section  five  and  of  p*^v"s^on  for 

5  the  determination  of  the  board  thereon,  and  shall  request  the  county  Jf^efor™""^^ 

6  commissioners  to  vote  to  pay  in  the  first  instance  the  total  expense  in-  i8i8,2sb, 

7  volved  in  making  the  improvements  found  by  the  board  to  be  for  the  1920,330. 


2626 


IMPROVEMENT    OF    LOW   L.\ND   AND    SWAMPS. 


[CILA.P.    252. 


general  advantage  of  the  proprietors,  except  that  part  of  the  expense  8 

determined  by  the  board  to  be  for  the  pubHc  heaUh  which  shall  be  paid  9 

by  the  commonwealth,  and  the  said  county  commissioners  may  so  vote.  10 

To  defray  any  expense  incurred  by  said  county  commissioners  under  11 

such  vote,  the  county  may  issue  registered  bonds  to  an  amomit  not  ex-  12 

ceeding  such  expense,  payable  in  not  more  than  twenty  years  from  their  13 

date  of  issue  and  bearing  interest  at  a  rate  to  be  fixed  by  the  comity  14 

treasurer  with  the  approval  of  the  county  commissioners,  payable  semi-  15 

annuallv  on  the  first  davs  of  Januarv  and  Julv.  16 


Powers  and 
duties  of  the 
commissioners; 
acquiring  or 
taking  of  land, 
etc.,  and  re- 
covery of 
damages 
therefor. 
1702,  11,  §  4. 
1745-6,  10, 
§§2,4. 
1795,  62. 
§§  1,5,6. 
R.  S.  115, 
§1  5,  6,  15-17. 
G.  S.  148, 
§§4,5,  14-16. 
P.  S.  189,  §§  4, 
S,  14,  16,  17. 
1885,  384,  §  5. 
R.  L.  195, 
§§  4,  5,  14, 
1918,  289, 
§§9.  12. 
11  Met.  321. 


,  16. 


Section  S.  If  the  seven  preceding  sections  have  been  complied  with 
and  the  county  commissioners  of  the  county  where  the  greater  part  of 
the  land  lies  have  voted  to  pay  in  the  first  instance  the  total  expense  of 
the  proposed  improvement,  except  such  as  is  to  be  borne  by  the  com- 
monwealth, the  district  drainage  commissioners  shall  carry  out  the  im- 
provement in  a  manner  approved  by  the  board  and  for  that  purpose  may 
employ  suitable  persons  to  perform  the  work  under  their  direction.  They 
may  take  in  the  manner  provided  by  chapter  seventy-nine  on  behalf  of 
the  drainage  district,  or  acquire  by  purchase  or  otherwise,  and  hold  all 
lands,  easements  and  rights  in  land  within  the  drainage  district  necessary 
to  eft'ect  the  improvement,  as  approved  by  the  board.  Any  person  dam- 
aged in  his  property  by  any  such  taking  may  recover  his  damages  in  the  12 
manner  pro^uded  by  said  chapter  from  the  comity  where  the  greater  part  13 
of  the  land  improved  lies.  14 

111  Mass.  454.  3  Op.  A.  G.  538. 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 


No  prescriptive 
right  to  ad- 
ditional water 
power  or  water 
supply,  etc. 
1918,289,  §  11. 


Section  9.  No  person  obtaining  an  additional  water  power  or  water 
supply  by  the  doing  of  any  work  contemplated  by  sections  one  to  fourteen, 
inclusive,  shall  gain  a  prescripti^'e  right  to  the  use  thereof,  nor  be  en- 
titled to  any  compensation  for  the  taking  thereof  under  said  sections  by 
the  remo\'al  of  any  dam  or  flashboards  or  by  the  changing  of  the  height 
or  dimensions  of  any  dam. 


Proceedings 
when  com- 
missioners in- 
tend to  do 
certain  acts 
on  land  of 
person  not  a 
party. 
1745-6,  16, 
§§1.4. 
1795,  62,  §  5. 
R.  S.  115, 
§§  14,  18. 
G.  S.  148, 
§§  13,  17. 
P.  S.  189, 
§§  13,  15. 
1885,  384,  §  5 
R.  L.  195, 
§§  13,  15. 
1918,  289, 
§§  17,  18. 


Section  10.  If  the  commissioners  find  it  necessary  or  expedient  to 
lower  or  raise  the  water  to  obtain  a  x'lew  of  the  land  or  for  the  more  con- 
venient or  expeditious  removal  of  obstructions,  they  may  open  the  flood 
gates  of  any  mill  or  make  other  needful  passages  tlirough  or  around  the 
dam  thereof,  or  erect  a  temporary  dam  on  the  land  of  a  person  not  a  party 
to  the  proceedings,  and  may  maintain  such  dam  or  passages  as  long  as 
necessary  for  such  purposes;  but  before  so  doing,  they  shall  give  to  such 
person  reasonable  written  notice  of  their  intention.  If  such  person  ap- 
peals from  their  decision  and  gives  reasonable  written  notice  thereof  to 
any  commissioner,  the  commissioners  shall  suspend  all  proceedings  upon 
his  land  until  such  appeal  is  determined;  provided,  that  the  petition  11 
therefor  is  entered  in  the  superior  court  for  the  county  where  the  greater  12 
part  of  the  land  improved  lies  not  later  than  the  next  return  day  after  13 
the  expiration  of  seven  days  from  the  time  of  giving  such  notice.  14 


9 
10 


Payment  of 
expenses  by 
the  county. 
1795,  62,  §  3. 
R.  S.  115,  §  11. 
G.S.  148,  §  10, 
P.  S.  189,  §  10. 


Section  11.  The  commissioners  shall  make  returns  to  the  county 
commissioners  of  the  county  where  the  greater  part  of  the  land  lies  of 
their  doings  and  expenditures  under  sections  one  to  fourteen,  inclusive, 
and,  after  approval   by  the  county  commissioners,  may  draw  on  the 


Chap.  252.]  improvement  of  low  l.vnd  and  swamps.  2627 

5  county  treasurer  at  proper  intervals  for  sums  not  exceeding  ninety  per  r.  l.  las,  §  lo. 

6  cent  of  such  expenditures  up  to  tlie  time  of  draft,  and  upon  the  completion 

7  of  the  improvement  for  the  balance  thereof. 

1  Section  12.     The   commissioners   as   soon   as   the   improvement   is  Commissioners 

2  completed  shall  make  a  return  to  the  assessors  of  each  town  where  the  tSrns^to  the 

3  land  impro\ed  lies  containing  the  names  of  the  owners  and  occupants  of  iln'llfe?,  §  3. 

4  such  land  in  said  town  and  the  amounts  of  such  land  belonging  to  and  g  |-  J]|'  |  }J- 

5  occupied  by  said  owners  and  occupants. 

p.  S.  1S9,  I  10.  R.  L.  195,  I  10.  1918,  289,  §  13. 

1  Section  13.     The  commissioners  shall,  after  due  notice  and  a  hear-  Commissioners 

2  ing,  determine  what  proportion  of  the  total  expense  of  the  improvement,  due  from°"°*^ 

3  of  the  cost  of  maintenance  of  drains  and  ditches  and  of  the  payment  for  i702.''iit'"'^*'" 

4  works  or  structures  taken  or  otherwise  acquired  in  connection  therewith,  fl^'^l  jg  s  4 

5  except  such  as  is  to  be  paid  by  the  commonwealth,  shall  be  paid  by  each  JP|-g-' 

6  town  where  anv  of  the  land  improved  lies,  and  shall  return  their  award  R.  s'.  115, 

7  to  the  board,  which  shall,  upon  acceptance  thereof,  send  a  copy  thereof  17. 

8  to  each  such  town.    Any  such  town  aggrieved  by  such  award  may,  by  §§  &-s,^i5, 

9  petition  joining  all  the  other  such  towns  as  party  respondents,  appeal  to  p'g  jgg 

10  the  superior  court  for  the  county  where  the  greater  part  of  the  land  im-  ||  ^^-  ^^■ 

11  proved  lies;    provided,  that  such  petition  is  entered  not  later  than  the  jf^L'igs'^^* 

12  next  return  dav  after  the  expiration  of  thirtv  davs  from  its  receipt  of  said  §§  6^8. 16. 

•  *  .^*'.  .  1918  289 

13  copy.    Questions  of  fact  shall,  upon  motion  of  either  party,  be  tried  by  §§  6,'7, 13, 19. 

14  jury  in  such  manner  as  the  court  orders.    The  court  may  affirm,  reverse 

15  or  alter  the  award,  and  the  decision  of  the  court  shall  take  effect  as  an 

16  original  award.    The  board  shall  forthwith  send  to  the  county  commis- 

17  sioners  of  the  county  where  the  greater  part  of  the  land  lies  a  copy  of  the 

18  award  as  finally  determined.    The  sum  so  ascertained  to  be  due  from  any 

19  such  town  shall  be  paid  by  the  treasurer  thereof  to  said  county  in  not 

20  exceeding  twenty  equal  annual  instalments  to  be  collected  in  the  same 

21  manner  as  taxes. 

1  Section  14.     The  assessors  of  each  such  town  shall  divide  the  sum  Method  of 

2  ascertained  to  be  due  from  their  town  under  the  preceding  section,  among  money  due 

3  the  various  parcels  of  land  therein  which  are  within  the  drainage  district  ^"(Jo.'iTTi- 

4  and  are  benefited  by  the  improvement  in  proportion  to  the  special  benefit  ji'^l'ffs^  ^" 

5  received  by  each  such  parcel  therefrom  and  shall  assess  the  same  in  the  |,^r?-.c 

6  same  manner  as  betterments  are  assessed  under  chapter  eighty.    The  §§Vs. 

7  provisions  of  said  chapter  relative  to  the  apportionment,  division,  reassess-  §§6^8. 

8  ment,  abatement  and  collection  of  assessments  for  betterments,  and  to  f^^g'.®^' 

9  interest,  shall  apply  to  assessments  made  under  this  section,  except  s^Met^l^o^  ^' 

10  that  such  assessments  shall  be  apportioned  in  twenty  equal  annual  in-  *  '^''^y'  is'^- 

11  stalments  or  in  such  lesser  number  as  the  assessors  may  determine. 

construction  of  roads,  etc.,  to  swamps,  etc. 

1  Section  15.     A  town  or  person  owning  low  land,  ponds,  swamps.  Roads  to 

2  c^uarries,  mines  or  mineral  deposits,  which,  on  account  of  adjacent  lands  quJmM.*" 

3  belonging  to  other  persons  or  occupied  as  a  highway,  cannot  be  ap-  cf^g."  l°i;  |  /g. 

4  preached,   worked,   cultivated,   drained   or   used   to   advantage   in   the  ^- 1; 'f^:  Vi*? 

5  ordinary  manner  without  crossing  such  land  or  highway,  may  construct  P/q,;^^"' 

6  roads,  drains,  ditches,  tunnels  and  railways  thereto  and,  when  the  con-  i9i9,'5. 


2628 


IMPRO\'EXIENT    OF   LOW    L.UvD   .\ND    SWAMPS. 


[CiLKF.    252. 


1920,  2. 

3  Allen,  7. 

185  Mass. 

186. 

Petition  and 

security. 

1855.  104, 

§  2. 

G.  S.  148, 

§20. 

P.  S.  189, 

§20. 

R.  L.  195, 

§  18. 

1918.257. 

§  197. 

1919,5. 

1920,  2. 

striiction  of  such  improvements  is  required  by  public  convenience  and  7 

necessity,  may  take  the  land  of  such  other  persons  for  the  location  of  8 

such  improvements  as  hereinafter  provided.  9 

Section  16.     A  party  desiring  to  make  such  improvements  shall  file  1 

a  petition  therefor  with  the  county  commissioners  for  the  county  where  2 

the  greater  part  of  the  land  lies,  setting  forth  the  names  of  the  persons  3 

interested,  if  known  to  the  petitioner,  and  also  in  detail  the  nature  of  4 

the  proposed  improvement  and  the  situation  of  the  adjoining  land.    The  5 

petitioner  shall  give  such  county  security  satisfactory  to  the  commis-  6 

sioners  that  he  will  indemnify  such  county  from  all  damages  and  charges  7 

which  it  is  obliged  to  pay  by  reason  thereof.  8 


Notice  of 
petition. 
1853,  104.  §  3. 
G.  S.  148.  §  21. 
P.  S.  1.S9,  §  21. 
R.  L.  195,  §  19. 

1918,  257, 
§  198. 

1919,  5. 

1920,  2. 


Section  17.  The  commissioners  at  their  first  meeting  after  the  filing 
of  the  petition  shall  order  notice  of  the  time  and  place  of  meeting,  to 
consider  the  petition,  to  be  published  once  in  each  of  tliree  successive 
weeks  in  a  newspaper,  if  any,  published  in  the  county;  otherwise,  in  a 
newspaper  published  in  an  adjacent  county.  They  shall  also  give  notice 
thereof  to  the  clerk  of  each  town  where  the  land  lies. 


Laying  out, 
taking  and 
damages. 
1855,  104,  § 
G.  S.  148,  § 
P.  S.  189,  § 
R.  L.  195,  S 
1918.  257, 
§  199;  285. 
1919,5. 
1920,  2. 


Section  18.     If,  after  examination,  inspection  and  a  hearing,  they  1 

^     find  that  the  improvements  prayed  for  are  required  by  the  public  con-  2 

|2-  venience  and  necessity  they  shall  so  lay  out  and  establish  the  same  as  to  .3 

20.  do  as  little  injury  as  practicable,  and  if  it  is  necessary  to  take  private  4 

property  for  such  improvements  may  take  it  on  behalf  of  such  county  5 

under  chapter  seventy-nine.    Any  person  sustaining  damage  in  his  prop-  6 

erty  by  the  laying  out  or  establishment  of  such  improvements  shall  be  7 

entitled  to  recover  the  same  under  said  chapter.  8 


Assessment 
of  benefits. 
1855,  104,  §  6. 
G.  S.  148.  §  23. 
P.  S.  189,  §  23. 
R.  L.  195,  §  21. 

1918,  257, 
§200. 

1919,  5. 

1920,  2. 


Section  19.  The  commissioners  shall  assess  the  amount  awarded  as 
damages  upon  the  persons  for  whose  use  the  improvements  are  to  be 
made,  in  proportion  to  the  benefit  to  be  received  by  each ;  but  no  person 
shall  be  assessed  an  amount  greater  than  the  benefit  to  be  received  by 
him.  The  provisions  of  chapter  eighty  relative  to  the  abatement  and 
collection  of  betterments  shall  apply  to  assessments  made  under  this 
section. 


i8^55*'i04.  §  5.  Section  20.  If  it  is  necessary  to  repair  an  improvement  so  made,  a 
p.' I.'  189,'  1 24.'  majority  of  the  persons  benefited  by  it  may  cause  such  repairs  to  be  made, 
ills' 257'  ^  ^^'  ^""^  ™^y  ^y  "-"^'^  "^  equity  compel  contribution  on  the  basis  of  the  award 
1 2oi.  '  from  the  owner  of  each  parcel  of  land  for  the  use  of  which  the  improve- 
1920^  2.  ment  was  made. 


Petition  to 
mayor  and 
aldermen  or 
selectmen. 
1857,  292, 
§§1.3. 
G.  S.  148, 
§§  25,  26. 
P.  S.  189, 
§§  25,  26. 
R.  L.  195,  5 


Section  21.     If  the  land  mentioned  in  section  fifteen  lies  entirely  in  1 

one  town,  the  petition  may  be  made  to  the  mayor  and  aldermen  or  select-  2 

men  thereof,  who  shall  proceed  thereon  in  all  respects  as  above  provided  3 

for  county  commissioners,  except  that  they  need  not  give  notice  to  their  4 

town.    Such  petition  shall  be  filed  in  the  office  of  the  town  clerk  before  5 

23.  proceedings  are  had  thereon;    and  the  petition  with  the  order  thereon  6 

shall  be  recorded  in  said  office  within  two  months  after  the  order  has  7 

been  made.  8 


ill?',  292,  Section  22.     The  mayor  and  aldermen  or  selectmen  shall  each  receive 

G.  s!  148,  §  27.  two  dollars  for  each  day's  services  upon  such  petition,  and  the  town  clerk 


Ch.\p.  253.] 


MILLS,    DAMS   AND   RESERVOIRS. 


2629 


3  shall  receive  for  recording  a  petition  or  order  thereon  the  same  fees  as  are  p.  s.  is9,  §  27. 

4  provided  for  registers  of  deeds  by  section  tliirty-eight  of  chapter  two    ■   •      ■ 

5  hundred  and  sixty-two. 


Section  23.     A  party  aggrieved  by  the  refusal  of  the  mayor  and  ^ouP^I^'ooj. 
aldermen  or  selectmen  to  make  such  order,  may,  within  one  year  there-  f^^'°2gl\  <, 
after,  petition  the  county  commissioners,  who  shall  thereupon  proceed  g.s.'i48,§2"8. 
in  all  respects  as  though  the  petition  had  been  originally  filed  with  them.  r.  l.  195, 1 25. 


1918,  257.  §  202. 


1919,5. 


1920,  2. 


CHAPTER    253. 

MILLS,   DAMS  AND   RESERVOIRS. 


11. 


12. 


1.3. 
14. 


15. 


16. 


Sect. 

mills  and  mill  dams. 

1.  Erection  of  mill  and  dam. 

2.  Dam  not  to  injure  existing  mill,  etc. 

3.  Height  of  water,  etc. 

4.  Petition  for  overflow,  etc.,  of  land. 

5.  Notice. 

6.  Pleadings  and  trial. 

7.  Jury. 

8.  .Assessment  of  damages ;  judgment. 

9.  Jurj-  to  determine  height  of  dam,  etc. 
10.  Jury  to  assess  annual  and  gross  dam- 
ages. 

Petitioner    may    elect    to    take    gross 
amount. 

Such  amount  to  be  paid  within  three 
months. 

Annual  compensation  if  no  election. 

Lien  on  mill,  etc.,  for  payment  of  dam- 
ages. 

Action  to  recover  damages  and  enforce 
lien. 

Sale  on  execution. 
17.  Right  of  redemption. 
IS.  Costs,  etc. 

19.  Other  remedies  prohibited. 

20.  Existing  mills  and  dams  not  affected, 

except,  etc. 

21.  Claim  of  new  assessment. 

22.  Same  subject. 

23.  Costs    avoided    by    offer    to    pay    in- 

creased compensation. 

24.  Costs    avoided     by    offer    to     accept 

smaller  compensation. 

25.  Offer  to  tenants. 

26.  Effect  of  acceptance  of  offer. 

27.  Verdict  not  to  bar  new  petition,  when. 

28.  Tender  to  stop  costs. 

29.  Judgment  upon  acceptance  of  tender. 

30.  Who  may  join  in  petition. 

31.  Pleas  in  abatement. 

32.  New  petition  after  abatement. 

33.  Petition    when    public    way    is    to    be 

overflowed. 

34.  Notice. 

35.  Commissioners   may   order   change   of 

grade,  etc.,  of  ways. 


Sect. 

36.  Commissioners  to  assess  damages. 

37.  Costs. 

38.  Order  to  be  protection  to  petitioner. 

CR.INBEKRT    LAND    AND    ICE    PONDS. 

39.  Dam  to  flow  cranberry  land. 

40.  Apportionment  of  expense. 

41.  Ice  ponds. 

D.IMS    OF    RESERVOIR    CORPORATIONS. 

42.  Land  flowed  by  reservoir  corporation. 

43.  Security. 

SAFETY    OF    RESERVOIRS    AND    DAMS. 

44.  Reservoir,  etc.,  not  to  be  constructed 

or  altered,  until. 

45.  Examination  of  reser\-oir  or  dam. 

46.  Alterations  or  repairs. 

47.  Proceedings    upon    failure    to    comply 

with  such  order. 

48.  Costs. 

49.  Acts  of  commissioners  not   to  impair 

liability,  etc. 

50.  Jurisdiction. 

REPAIRING      AND      REBUILDING      MILLS      AND 
MILL    DAMS. 

51.  Power  of  majority  to  repair,  etc. 

52.  Meeting  of  proprietors. 

53.  Notice. 

54.  Proceedings. 

55.  Apportionment  of  expense  of  work. 

56.  Lien  for  such  payment. 

57.  Proprietor  under  guardianship. 

58.  Apportionment    of    expenses    between 

tenant    for    life    or    years    and    re- 
mainderman. 

59.  If  proprietor  has  mortgaged  his  interest. 

60.  Tenant  in  tail. 

61.  Recovery  of  amount  paid  for  repeiirs. 

62.  Contracts  between  parties. 

MILLERS. 

63.  Millers  to  keep  scales,  etc. 
G4.  Toll. 


2630 


MILLS,   DAMS  ,VND   RESERVOIRS. 


[Chap.  2.53. 


Erection  of 
mill  and  dam. 
1795,  74.  §  1. 
R.  S.  116.  §  1. 
G.  S.  149,  §  1. 


MILLS   AND   MILL  DAMS. 


Section  1.  A  person  may,  as  hereinafter  provided,  erect  and  main- 
tain a  water  mill  and  a  dam  to  raise  water  for  working  it,  upon  and 
across  any  stream  not  navigable. 


p.  S.  190,  §  1. 
R.  L.  196,  §  1. 
8  Cush.  113. 


12  Allen,  89. 
100  Mass.  241. 
Ill  Mass.  454. 


154  Mass.  579. 
225  Mass.  155. 
113  U.  S.  9. 


Dam  not  to 
injure  existing 
mill,  etc. 
R.  S.  116,  §  2. 
1841,  18. 
G.  S.  149,  §  2. 
P.  S.  190,  §  2. 
R.  L.  196,  §  2. 
17  Mass.  289. 
10  Pick.  348. 

22  Pick.  312. 

23  Pick.  216. 
10  Met.  359. 
2  Allen,  350, 
355. 

12  Allen,  80. 

13  Allen,  10. 
99  Mass.  480, 
486,  488. 

102  Mass.  463. 
I(i2  Mass.  422. 
177  Mass.  46. 


Section  2.  Such  dam  shall  not  be  erected  to  the  injury  of  a  mill  1 
lawfully  existing  above  or  below  it  on  the  same  stream,  nor  to  the  injury  2 
of  a  mill  site  on  the  same  stream  on  which  a  mill  or  mill  dam  has  been  3 
lawfully  erected  and  used,  unless  the  right  to  maintain  a  mill  on  such  4 
last  mentioned  site  has  been  lost  by  abandonment  or  otherwise;  nor  5 
shall  a  mill  dam  be  erected  or  raised  to  the  injury  of  any  such  mill  site  6 
which  has  been  occupied  as  such  by  the  owner  thereof,  if,  within  a  reason-  7 
able  time  after  commencing  such  occupation,  he  completes  and  puts  in  8 
operation  a  mill  for  the  working  of  which  the  water  of  such  stream  is  9 
applied ;  nor  shall  a  mill  or  dam  be  placed  on  the  land  of  any  person  with-  10 
out  such  grant,  conveyance  or  authority  from  the  owner  as  would  be  11 
necessary  to  con\-ey  land.  ise  Mass.  89.  226  Mass.  sse.  12 


Height  of 
water,  etc. 
1795,  74,  §  4. 
R.  S.  116,  §  3. 
G.  S.  119,  §  3. 


Section  3.  The  height  to  which  the  water  may  be  raised  and  the  1 
period  of  time  for  which  it  may  be  kept  up  in  each  year  may  be  determined  2 
by  jury.  p.  s.  loo,  §  3.  3 


R.  L.  196,  §  3. 
12  Met.  142. 


4  Cush.  549. 
7  Gray,  294. 


113  Mass.  238. 
142  Mass.  482. 


Petition  for 
overflow,  etc., 
of  land. 
1713-14, 
15,  §  2. 
1795,  74,  §  2. 
1825,  109,  §  2. 
R.  S.  116, 
§§  4,  5. 
1840,  87,  §  2. 
G.  S.  149, 
§§4,5. 
P.  S.  190, 
§§4,5. 

R.  L.  196,  §  4. 
1905,  259,  §  1. 


Section  4.     The  owner  or  occupant  of  land  which  has  been  overflowed  1 

or  otherwise  injured  by  such  dam  may  obtain  compensation  therefor  if,  2 

within  three  years  thereafter,  he  files  a  petition  in  the  superior  court  for  3 

the  county  where  the  land  or  any  part  thereof  lies  describing  the  land  4 

alleged  to  have  been  overflowed  or  injured  and  stating  the  damages  5 

sustained  so  that  the  record  will  show  with  sufficient  certainty  the  matter  6 

heard  and  determined.    If  the  land  overflowed  or  injured  is  outside  the  7 

commonwealth  such  petition  shall  be  filed  in  the  superior  court  for  the  8 

county  where  the  dam  or  any  part  thereof  is  maintained.        9  Pick.  62.  9 


3  Met.  357. 

10  Met.  203. 

11  Met.  570. 

12  Met.  182. 

6  Cush.  170.  303. 

13  Gray,  146,442. 


16  Gray,  43. 
2  Allen,  350. 
10  Allen,  420. 
12  Allen,  89.  455. 
102  Mass.  458. 
108  Mass.  160. 


116  Mass.  138. 
129  Mass.  292. 
131  Mass.  337. 
177  Mass.  46. 
190  Mass.  143. 
225  Mass.  155. 


Notice. 

1797,  63.  §  1. 

1824,  153,  §  1. 

R.  S.  116, 

§§  6,  7. 

G.  S.  149, 

§§6,7. 

P.  S.  190, 

§§  6,  7. 

R.  L.  196,  §  5. 


Section  5.  Notice  of  the  filing  of  such  petition  shall  be  given  by  an 
officer  qualified  to  serve  civil  process  by  delivering,  fourteen  days  at 
least  before  the  return  day  thereof,  to  the  owner  or  occupant  of  such 
mill  or  dam,  or  leaving  at  his  place  of  abode,  or,  if  he  is  not  found  within 
the  commonwealth  and  has  no  place  of  abode  therein,  at  the  mill,  an 
attested  copy  of  the  petition. 


Pleadings 
and  trial. 
1797,  63,  § 
R.  S.  116, 
§§8,9. 
G.  S.  149, 
§§8,9. 
P.  S.  190, 
§§  8,9. 


Section  6.     The  respondent  may  answer  in  bar  that  he  has  a  right  1 

to  maintain  such  dam,  that  the  petitioner  has  no  interest  in  the  land  2 

alleged  to  be  flowed  or  injured  or  any  other  matter  which  may  show  3 

that  the  petitioner  cannot  maintain  the  petition;  but  he  shall  not  answer  4 

that  the  land  described  is  not  injured  by  the  dam.    If  a  plea  or  answer  is  5 


Chap.  253.]  mills,  daiis  and  reservoirs.  2631 

6  filed,  the  subsequent  pleadings  and  the  trial  shall  be  conducted  as  in  an  n.  l.  i96.  §  e. 

_  ,.  .     1  3  Mass.  1S4. 

7  action  at  law. 

6  Mass.  398.  12  Cush.  259.  7  Gray,  294.  16  Gray,  187. 

10  Met.  37.  4  Gray.  581.  9  Gray,  177.  123  Mass.  301. 

1  Section  7.     If  the  respondent  is  defaulted  or  if  the  issue  is  decided  {^Hi^^^ 

2  in  favor  of  the  petitioner,  the  case  shall  be  tried  by  a  jury;  and,  if  either  i5^|  2.^    ^ 

3  party  requires  it,  the  jury  shall,  under  the  direction  of  the  court,  view  the  i797i  ea.  §  3. 

4  land  alleged  to  be  injured.  isi?,  173. 

1824,  153,  §  2.  G.S.  149,  §§  11,  13-15.  R.  L.  196,  §  7. 

R.  S.  116,  §§  11,  13,  14.  P.  S.  190,  §§  11-13.  2  Cush.  341. 

1  Section  S.     The  jury  shall  assess  the  amount  of  damages  sustained  0/^?™™'; 

2  within  three  years  last  preceding  the  filing  of  the  petition  and  to  the  date  {^'Jll^j^"'- 

3  of  their  verdict,  taking  into  consideration  any  damage  caused  by  the  is,  §  3. ' 

4  dam  to  other  land  of  the  petitioner  as  well  as  the  damage  caused  thereby  1824;  153,'  §  3. 

5  to  the  land  overflowed ;   and  they  shall  also  allow  by  way  of  set-off  any  r.^|.'  ne,' 

6  benefit  caused  thereby  to  the  petitioner's  land.     Upon  the  acceptance  ^^  s^lw, 

7  and  recording  of  their  verdict,  judgment  and  execution  shall  be  issued  in  |>^  s'^ll\ 

8  accordance  therewith.  R.  l.  i96,  §  8.  §§  i*-i6- 

17  Pick.  58.  102  Mass.  458.  131  Mass.  572. 

16  Gray,  46.  108  Mass.  160.  162  Mass.  422. 

2  Allen,  436.  113  Mass.  88.  177  Mass.  46. 

1  Section  9.     If  it  is  alleged  in  the  petition  that  the  dam  has  been  Jurytodeter- 

2  raised  to  an  unreasonable  height,  or  that  it  ought  not  to  be  kept  up  and  Sim.  etc'.* 

3  closed  during  the  whole  year,  the  jury  shall  determine  by  their  verdict  \IIq]  /li.Vi. 

4  how  much  the  dam  shall  be  lowered  and  whether  it  shall  be  left  open,  and,  g;  1;  J^®'  |  If 

5  if  so,  during  what  part  of  the  year.  p.  s.  iqo,  §  n. 

R.  L.  196,  §9.  113  Mass.  238.  142  Mass.  482. 

1  Section  10.     They  shall  also  determine  by  their  verdict  what  amount,  ^^y  tp  assess 

•in  1  •    ■  111  •  J  annual  and 

2  if  any,  to  be  paid  annually  to  the  petitioner,  would  be  a  just  and  reason-  gross  damages. 

3  able  compensation  for  the  damages  that  may  be  thereafter  caused  by  the  is.  §  2. ' 

4  dam,  so  long  as  it  is  used  in  conformity  with  the  verdict;  and  also  what  Jslo!  122;  f 2. 

5  amount  in  gross  would  be  a  just  and  reasonable  compensation  for  all  §;  |;  J|g;  |  Jq: 

6  damages  thereafter  to  be  caused  by  such  use  of  the  dam  and  for  the  right  ^  t/fge^Vf^. 

7  to  maintain  and  use  it  forever  as  aforesaid. 

110  Mass.  298.  131  Mass.  337. 

1  Section  11.     The  petitioner  may,   within  three  months  after  the  Petitioner  may 

2  verdict  has  been  allowed  and  recorded,  elect,  by  a  WTiting  filed  in  the  gross  amount. 

3  clerk's  office,  to  take  the  amount  so  awarded  in  gross,  instead  of  such  r^"!.' ii'o,' 1 26. 

4  annual  compensation. 

G.  S.  149,  §  21.  R.  L.  196,  §  11.  126  Mass.  458. 

P.  S.  190,  §  19.  4  Met.  603.  131  Mass.  337,  572. 

1  Section  12.     The  owner  or  occupant  of  the  mill  or  dam  shall,  within  Such  amount 

2  three  months  after  such  election,  pay  to  the  petitioner  or  secure  to  his  within  three 

3  satisfaction  said  amount  with  interest  from  tiie  date  of  the  verdict,  "sm!  i'22,  §  2. 

4  After  the  expiration  of  said  three  months,  and  until  pajTiient  of  said  g;  | }]!;;  1 1},- 

5  damages  and  interest,  such  owner  or  occupant  shall  lose  all  benefit  of  R.t.'ige.Viz. 
G  the  provisions  of  this  chapter.  4  Cush.  245. 

1  Section  13.     If  the  petitioner  does  not  within  said  three  months  make  Annual  com- 

2  his  election,  as  aforesaid,  he  and  all  persons  claiming  under  him  shall,  no°ei'ection. 

3  so  long  as  the  dam  is  kept  up  and  maintained,  be  entitled  to  receive  from  r.^s.'  ho,  §  22. 


2632 


MILLS,   DAMS  .\ND   RESERVOIRS. 


[Chap.  253. 


PI  l*^- 1  |j3-  the  owner  or  occupant  of  the  mill  the  annual  compensation  so  established    4 

R.  L.  196,  §  13.  by  the  jury,  unless  the  amount  is  increased  or  diminished  upon  a  new    5 

petition,  as  hereinafter  provided.  6 


Lien  on  mill, 
etc.,  for  pay- 
ment of 
damages. 
R.  S.  116,  §  23. 
G.  S.  149,  §  24. 
P.  S.  190,  I  22. 
R.  L.  196,  §  14. 


Section  14.  The  person  who  is  entitled  to  receive  said  annual  com- 
pensation or  gross  damages  shall  have  a  lien  therefor,  from  the  time  of 
the  filing  of  the  original  petition,  on  the  mill  and  mill  dam  with  their 
appurtenances  and  on  the  land  under  and  adjoining  the  same  and  used 
therewith;  but  such  lien  shall  not  extend  to  any  amount  due  more  than 
tliree  years  before  the  commencement  of  an  action  therefor. 


Action  to  re- 
cover damages 
and  enforce 
lien. 

1713-14. 
15,  §  3. 
1795,  74,  §  3. 
R.  S.  116,  «  24. 
G.  S.  149,  I  25. 


Section  15.  Such  person  may  recover,  in  contract  in  the  superior 
court  from  the  person  who  owns  or  occupies  the  mill  when  the  action 
is  brought,  the  whole  amount  due  and  unpaid  for  the  three  years  last 
preceding,  and  costs,  although  the  amount  recovered  is  less  than  twenty 
dollars. 


p.  S.  190,  §  23. 
R.  L.  196,  §  15. 


4  Met.  426. 
10  Met.  359. 


13  Met.  172. 
4  Cush.  245. 


2  Gray,  407. 
108  Mass.  160. 


Sale  on 
execution. 
R.  S.  116. 
§§  23,  26. 
G.  S.  149. 
§§  26,  27. 
p.  S.  190,  §  24. 
R.  L.  196,  §  16. 
123  Mass.  183. 


Section  16.  The  execution  issued  on  such  judgment,  if  not  other- 
wise satisfied,  may,  within  thirty  days  after  judgment,  be  levied  on  the 
land  so  subject  to  the  lien;  and  the  officer  may  thereupon  sell,  in  the 
manner  provided  for  the  sale  of  land  on  execution,  such  land  or  so  much 
thereof  as  is  necessary  to  satisfy  the  execution  and  the  expenses  of  the 
levy.  Such  sale  shall  be  valid  against  any  claim  which  has  accrued 
within  the  time  covered  by  the  lien. 


Right  of 
redemption. 
R.  S.  116,  5  27. 
G.  S.  149,  I  28. 
P.  S.  190,  §  25. 
R.  L.  196,  §  17. 


Section  17.    A  person  who  is  entitled  to  the  land  so  sold  may  redeem  1 

the  same  within  one  year  after  the  sale,  upon  paying  to  the  purchaser  2 

or  to  the  person  holding  under  him  the  amount  paid  therefor,  with  interest  3 

at  the  rate  of  twelve  per  cent  a  year.  4 


Costs,  etc. 
1713-14, 
15,  §  4. 


Section  18.    The  party  prevailing  upon  such  petition  shall  be  entitled     1 
to  costs,  except  as  otherwise  provided.  2 

G.  S.  149,  §§  10,  32,  33. 
P.  S.  190.  §§  10,  27. 
R.  L.  196,  §  18. 


1795,  74.  §§  2,3. 

1797,  63,  §  4. 

R.  S.  116,  S§  10,31,32. 


2  Met.  506. 
2  Gray,  497. 
2  Allen,  436. 


Other  remedies 
prohibited. 
R.  S.  116,  §  30. 
G.  S.  149,  §  31. 
P.  S.  190,  I  28. 


Section  19.  No  action  shall  be  maintained  at  common  law  for  the  1 
recovery  of  damages  for  the  erection,  maintenance  or  use  of  a  mill  or  2 
mill  dam,  if  a  remedy  therefor  is  provided  in  this  chapter.  3 


R.  L.  196.  5  19. 
12  Met.  142. 


2  Allen,  350. 
12  Allen,  89. 


113  Mass.  235,  238. 
225  Mass.  155. 


Existing  mills 
and  dams  not 
affected, 
except,  etc. 
R.  S.  116,  §  28. 
G.  S.  149,  §  29. 
P.  S.  190.  §  29. 
R.  L.  196,  §  20. 
97  Mass.  402. 
113  Mass.  235, 
238. 


Section  20.     This  chapter  shall  not,  except  as  herein  expressly  pro-  1 

vided,  affect  the  right  to  keep  up,  maintain  and  use  any  lawfully  existing  2 

water  mill  and  mill  dam ;  but  if  the  owner  or  occupant  thereof  makes  any  3 

material  change  by  raising  the  dam  or  by  altering  the  machinery  or  the  4 

manner  of  using  the  water,  so  as  to  cause  additional  damage  to  the  land  5 

of  another,  it  shall  be  considered  a  new  mill  or  dam,  in  respect  to  such  6 

additional  damage,  and  the  remedy  for  compensation  therefor  shall  be  7 

substantially  the  same  as  in  the  case  of  a  new  dam.  8 


Claim  of  new 
assessment. 
R.  .S.  116,  §  33. 
G.  S.  149,  I  34. 


Section  21.     If  either  partj^  is  dissatisfied  with  the  annual  compen-    1 
sation  established  by  proceedings  upon  a  petition  under  this  chapter  or    2 


Chap.  253.]  mills,  d.\ms  and  reservoirs.  2633 

3  corresponding  provisions  of  earlier  laws,  a  new  petition  may  be  filed  for  p.  s.  i9o,  §  3o. 

4  the  increase  or  diminution  of  such  compensation  or  for  ascertaining  the  ?Masi^2'ol."^' 

5  gross  amount  of  the  damages,  and  the  proceedings  shall  be  conducted  3  Ull  I57; 

6  substantially  in  the  manner  provided  for  an  original  petition;   but  if  a  JloSMas's^sos 

7  petitioner  has  declined  to  accept  gross  damages  which  have  been  awarded 

8  to  him,  they  shall  not  be  again  assessed  within  ten  years  thereafter. 

1  Section  22.     Such  new  petition  may  be  maintained  by  and  against  ?2?l^|"4«S'- 

2  either  of  the  parties  to  the  original  petition  or  by  and  against  a  person  1799!  vs.'  §  3. 

3  lawfully  holding  under  either  of  them,  but  it  shall  not  be  brought  until  §§  34, 35.' 

4  the  expiration  of  one  month  after  the  payment  of  the  year  last  preceding  55'  fj"!.' 

5  was  due.  p.  s.  190,  §  31.  r.  l.  i96,  §  22. 

1  Section  23.     The  owner  of  the  mill  or  dam  may,  within  said  month.  Costs  avoided 

2  offer  in  MTiting  to  the  owner  of  the  land  any  increase  of  said  annual  com-  pay'inTreased 

3  pensation;  and  if  the  owner  of  the  land  does  not  agree  to  accept  it,  but  nggJ^Tsrl'i!'' 

4  files  a  new  petition  to  obtain  an  increase,  he  shall  pay  the  costs,  unless  §■  g  Wl'^  |  If 

5  he  recovers  a  greater  annual  compensation  than  was  so  offered.  ^- 1;  ^^a  §32. 

1  Section  24.     The  owner  of  the  land  may,  within  said  month,  offer  in  Costs  avoided 

2  writing  to  the  owner  of  the  mill  or  dam  to  accept  a  smaller  amount  than  accept'^smaiier 

3  that  established  as  said  annual  compensation;   and  if  the  owner  of  the  lygg^Ts'rl'™' 

4  mill  or  dam  does  not  agree  to  pay  such  reduced  compensation,  but  files  §■  |-  \\^- 1  |g- 

5  a  new  petition  to  obtain  a  diminution  thereof,  he  shall  pay  the  costs,  SL\g°'||4 

6  unless  the  annual  compensation  is  reduced  by  the  verdict  to  an  amount 

7  less  than  the  offer. 

1  Section  25.     Such  offers  may  be  made  by  or  to  the  respective  tenants  oser  to 

2  or  occupants  of  the  land  and  of  the  mill  or  dam,  in  like  manner  and  with  1799? 7^8, 

3  like  effect  as  if  made  by  or  to  the  respective  owners,  except  that  no  r,  g.  I'le,  §  3s. 

4  agreement  founded  thereon  shall  bind  said  owners  unless  made  with  their  p- f;  ^gg'  |  ^^ 

5  consent.  R.  l.  i96,  §  25. 

1  Section  26.     If  the  offer  so  made  by  either  party  is  accepted  by  the  Effect  of 

2  other,  it  shall  establish  the  annual  compensation  to  be  thereafter  paid,  oVoief'^"^ 

3  as  if  it  had  been  established  by  a  judgment  upon  a  new  petition,  if  a  mem-  §;  1;  \\l[  1 40; 

4  orandum  of  such  offer  and  acceptance  and  of  the  agreement,  signed  by  the  ^- 1;  ^^^^  i||- 

5  respective  parties  or  by  persons  authorized  by  them,  is  filed  and  recorded 

6  in  the  office  of  the  clerk  of  the  court  in  which  the  former  judgment  was 

7  rendered,  with  a  note  of  reference  on  the  record  of  the  former  judgment 

8  to  the  book  in  which  the  agreement  is  recorded. 

1  Section  27.     If,  upon  a  petition  by  the  owner  of  the  land,  the  jury  verdict  not  to 

2  return  a  verdict  that  he  is  not  entitled  to  any  annual  compensation,  the  tion^whe'ri'! '" 

3  judgment  thereon  shall  not  bar  a  new  petition  for  damages  alleged  to  §;  |;  hIJ;  |  t°: 

4  have  arisen  after  such  verdict  and  for  compensation  for  damages  there-  r;l.\96,§27. 

5  after  sustained.  10  Mass.  72. 

1  Section  28.     In  every  original  petition  brought  by  the  owner  of  land  Jj™'^^^^'" 

2  alleged  to  be  injured  by  a  mill  dam,  the  respondent  may  bring  into  court  i|||.  js^,  §  4. 

3  and  there  tender  any  amount  which  he  considers  proper  to  be  paid  to  the  R.  s.'  nt>.'  |  4i. 

4  petitioner  for  the  damages  incurred  up  to  the  time  of  such  tender,  and  p.'s.i9o,'§37.' 


2634 


MILLS,    DAMS   .\ND   RESERVOIRS. 


[Chap.  253. 


R.  L.  196,  §  2S. 
7  Gray,  186. 


may  also  offer  to  pay  any  certain  annual  compensation  for  the  damages 
which  may  be  thereafter  caused  by  the  dam.  If  the  petitioner  does  not 
accept  the  amount  so  tendered  with  his  costs  to  that  time,  he  shall,  unless 
he  recovers  greater  damages  or  greater  annual  compensation  than  was 
so  offered,  be  entitled  to  his  costs  to  the  time  of  the  tender,  and  the  re- 
spondent shall  be  entitled  to  his  costs  after  said  time. 


Judgment 
upon  accept- 
ance of  tender. 
R.  S.  116,  §  42. 
G.  S.  149,  §  43. 
P.  S.  190,  §  38. 
R.  L.  196,  §  29. 


Section  29.  If  the  petitioner  accepts  the  amount  so  offered  for  the 
past  damage  and  for  future  annual  compensation,  he  shall  have  judgment 
therefor  and  for  costs  to  that  time;  or  the  petitioner  may  accept  either 
the  amount  tendered  for  past  damages  or  the  offer  for  future  annual  com- 
pensation, and  proceed  to  trial  on  the  residue  of  the  petition  under  the 
same  liability  for  costs. 


Who  may  join 
in  petition. 
1841,  86. 
G.  S.  149,  §  44. 
P.  S.  190,  §  39. 
R.  L.  196,  §  30. 


Section  30.    Two  or  more  persons  who  are  jointly  or  separately  1 

interested  in  the  land  injured  may  join  in  a  petition,  and  the  jury  may  2 

assess  joint  or  several  damages  as  the  interest  and  title  of  the  petitioners  3 

may  require;  and  judgment  and  execution  shall  conform  thereto.  4 


Pleas  in 
abatement. 
R.  S.  116,  §  43. 
1839,  151,  §  5. 
G.  S.  149, 
5§45,  46. 
P.  S.  190,  §  40. 
R.L.  196,  §31. 
9  Gray,  177. 
16  Gray,  187. 


Section  31.  The  provisions  of  chapter  two  hundred  and  thirty-one 
relative  to  pleas  in  abatement  shall  apply  to  petitions  under  this  chap- 
ter; and  if  new  respondents  are  summoned  in  pursuance  of  said  pro- 
visions, the  petitioner  may  have  a  verdict  against  such  of  the  respond- 
ents as  he  proves  are  liable,  although  he  fails  as  to  the  rest.  A  petition 
shall  not  be  abated  by  the  death  of  any  party,  but  it  may  be  prosecuted  or 
defended  by  the  surviving  petitioners  or  respondents,  or  by  the  executor 
or  administrator  of  the  deceased. 


New  petition 
after  abate- 
ment. 

R.  S.  116,  §43. 
G.  S.  149,  §  46. 
P.  S.  190,  §  41. 
R.  L.  196,  §  32. 


Section  32.  If  a  petition  is  abated  or  defeated  for  any  matter  of 
form,  or  if  a  judgment  for  the  petitioner  is  reversed  for  error,  the  pe- 
titioner, or  any  person  claiming  under  him,  may  file  a  new  petition  for 
the  same  cause  within  one  year  after  the  abatement  or  other  determina- 
tion of  the  original  petition  or  after  the  reversal  of  the  judgment,  and 
recover  all  damages  sustained  during  the  three  years  last  preceding  or 
at  any  time  after  the  filing  of  the  first  petition. 


Petition  when 
public  way  is 
to  be  over- 
flowed. 

1873,  144,  §  1. 
P.  S.  190,  §  42. 
R.  L.  196,  §  33. 
119  Mass.  356. 


Section  33.  If  a  person  who  owns,  erects  or  maintains  a  water  mill 
or  a  dam  to  raise  water  for  working  such  mill  upon  or  across  a  stream 
not  navigable  desires  to  raise,  erect  or  maintain  a  dam  at  such  a  height 
or  in  such  a  manner  as  to  overflow  or  otherwise  injure  an  existing  public 
way,  he  may  apply  by  petition  to  the  county  commissioners  of  the  county 
where  such  way  is  located,  stating  the  height  at  which  it  is  desired  to 
maintain  such  dam  and  the  ways  which  may  be  injured  thereby,  and 
asking  for  the  alteration,  change  of  grade  or  specific  repairs  of  such  ways. 


Notice. 
1873,  144,  §  2. 
P.  S.  190,  §  43. 
R.  L.  196,  §  34. 


Section  34.     Notice  of  the  hearing  upon  such  petition  shall  be  given  1 

to  the  towns  where  the  ways  are  situated,  and  to  the  owners  or  occu-  2 

pants  of  the  land  affected  thereby,  in  like  manner  as  notice  of  the  laying  3 

out  of  highways  is  given.  4 


Commissioners 
may  order 
change  of 
grade,  etc.,  of 
ways. 


Section  35.  Said  commissioners  may,  after  a  hearing,  order  such  1 
alteration,  repairs  or  change  of  grade  of  such  ways  as  will  in  their  judg-  2 
ment  enable  the  petitioner  to  raise,  erect  and  maintain  such  dam  with-    3 


Ch.\P.   253.]  MILLS,   DAMS  AND  RESERVOIRS.  2635 

4  out  overflowing  or  otherwise  injuring  such  ways,  and  they  may  give  i873, 144,  §  1. 

5  written  direction  and  authority  to  the  petitioner  to  make  at  his  own  ex-  r,  l.  mVs^i 

6  pense  such  alterations,  changes  of  grade  and  repairs  within  a  reasonable 

7  time.    They  shall  record  all  such  orders  and  shall  cause  certified  copies 

8  thereof  to  be  filed  and  recorded  in  the  office  of  the  clerk  of  each  town  in 

9  which  such  alterations,  changes  of  grade  or  repairs  are  ordered. 


ommissioners 
to  assess 


1  Section  36.    The  commissioners  shall  assess  and  order  the  petitioner  c^ 

2  to  pay  all  damages  sustained  by  any  person  or  town  by  reason  of  the  damages. 

3  alterations,  changes  of  grade  or  repairs  ordered  by  them,  and  any  person  \^l]  \\j]  ^  ^• 

4  or  town  aggrieved  by  such  assessment  may,  on  application  within  one  RL^ggllfs 

5  year  from  the  entry  of  such  order,  have  the  damages  assessed  by  a  jury  lis  m^^s'  ^se. 

6  in  the  manner  provided  in  chapter  se\enty-nine. 

1  Section  37.     The  costs  of  proceedings  under  the  four  preceding  sec-  Costs. 

2  tions  shall  be  paid  by  the  petitioners,  who  may  be  required  by  the  county  p.  s.'i9o,'§  46. 

3  commissioners  to  give  bond  with  sufficient  sureties  for  the  payment  ^'  ^'  ^^^'  ^  ^^' 

4  thereof. 

1  Section  38.     The  order  of  the  countv  commissioners,  dulv  issued  Ord^ertobe 

,        .       "    ,  ^  protection  to 

2  under  section  thirty-five,  shall  authorize  the  petitioner  to  do  all  acts  p^J;^""™^''-^^ 

3  necessary  to  be  done  in  compliance  therewith:   and  if  it  is  shown  that  p-  s.'i9o,'§  47. 

•  '*  ■  ••  ••  RL  196   §  38 

4  the  petitioner  has  substantially  complied  with  such  order,  no  indictment 

5  shall  be  maintained  for  the  flowage  of,  or  injury  to,  the  ways  mentioned  in 

6  such  order,  which  may  be  caused  by  the  dam. 

CRANBERRY   hAND   AND    ICE    PONDS. 

1  Section  39.     An  owner  or  lessee  of  land  appropriated  or  which  he  Dam  to  flow 

2  desires  to  appropriate  to  the  cultivation  and  growth  of  cranberries  may  1866,206. 

3  erect  and  maintain  a  dam  upon  and  across  a  stream  to  flow  and  irrigate  fss^i  m°'  ^  **' 

4  said  land,  subject  to  this  chapter  so  far  as  applicable;   but  he  shall  not  ^lo,  ill'.  ^  ^^" 

5  erect  and  maintain  a  dam  across  a  navigable  stream  or  across  the  outlet  Js\^ifi°ig 

6  of  a  great  pond,  without  a  license  therefor  from  the  division  of  water-  ii7  Mass.  213. 

7  ways  and  public  lands  of  the  department  of  public  works.  isi  Mass!  207'. 

154  Mass.  579.  190  Mass.  143.  210  Mass.  128.  226  Mass.  586. 

1  Section  40.     If  a  dam  has  been  so  erected  or  maintained  or  if  a  Apportionment 

2  person  has  at  his  own  expense  made,  kept  open  or  repaired  any  ditches  isn.^'iel^' 

3  or  drains  for  the  improvement  or  cultivation  of  such  tract  of  land,  any  r.  l.\^96,V46. 

4  owner  or  lessee  of  a  like  tract,  who  uses  such  dam,  ditches  or  drains  or 

5  who  by  more  remote  means  receives  benefit  thereby  for  the  flowing, 

6  irrigating  or  draining  of  such  last  mentioned  tract,  shall  pay  to  the 

7  person  who  has  erected  or  maintained  such  dam  or  incurred  such  ex- 

8  pense  his  proportionate  part  thereof,  which  shall  be  determined  by  the 

9  aldermen  of  tlie  city  or  the  selectmen  of  the  town  and  certified  to  such 

10  owner  or  lessee.     Any  person  aggrieved  by  such  determination  may 

11  within  three  months  after  notice  thereof  appeal  therefrom  to  the  superior 

12  court  for  the  county  where  the  dam,  ditches  or  drains  are  situated,  and 

13  shall  be  entitled  to  a  jury  trial;  but  before  taking  his  appeal  he  shall 

14  give  one  month's  notice,  in  ^\Titing,  to  the  aldermen  or  selectmen  of  his 

15  intention  so  to  appeal,  and  shall  therein  specify  particularly  his  objec- 

16  tions  to  the  determination,  to  which  specification  he  shall  be  confined  upon 

17  the  hearing  by  jury.     If  such  owner  or  lessee  fails  to  pay  to  the  person 


2636 


MILLS,   D.UIS  AND  RESERVOmS. 


[Ch.u>.  253. 


entitled  such  proportionate  part  as  finally  determined,  within  said  three  18 
months  if  there  is  no  appeal,  otherwise  witliin  seven  days  after  final  19 
determination,  he  shall  pay  double  the  amount  so  determined  with  all  20 
expenses  arising  from  such  failure;  and  such  person  may  recover  the  21 
same  in  contract  in  his  own  name.  But  no  covenants  or  agreements  by  22 
or  between  the  owners  or  lessees  of  such  land  shall  be  affected  by  this  23 
section.  24 


Ice  ponds. 
1898,  480. 
R.L.  196,  §41. 


Section  41.  An  owner  or  lessee  of  land  used  for  an  ice  pond  may  erect 
and,  between  November  first  and  March  first,  maintain  a  dam  across  a 
stream  not  navigable,  for  the  purpose  of  making  an  ice  pond  by  flowing 
adjoining  land,  subject  to  tliis  chapter  so  far  as  applicable,  if  he  annually 
pays  to  the  owner  of  land  which  may  be  overflowed  or  injured  thereby 
the  amount  of  the  tax  which  may  from  time  to  time  be  assessed  on  such 
land ;  but  such  dam  shall  not  be  erected  without  the  consent  of  all  of  the 
owners  of  the  land  which  would  be  flowed  by  it,  unless  the  person  propos-  8 
ing  to  erect  it  shall  furnish  to  such  owners  as  do  not  consent  to  the  erec-  9 
tion  security,  satisfactory  to  them  or  approved  by  a  justice  of  a  coiu-t  of  10 
record  or  by  a  master  in  chancery,  for  the  payment  of  any  damages  which  1 1 
may  be  caused  by  flowing  the  land  of  such  owners.  12 


Land  flow 

ed 

by  reservoir 
corporation. 
1869,  383,  §  1. 
P.  S.  190,  §  50. 
R.  L.  196,  §  42. 

Security. 
1869,  383, 
P.  S.  190, 
R.  L.  196, 

,12. 
§  51. 
§43. 

DMMS  OF   RESERVOIR   CORPORATIONS. 

Section  42.  A  domestic  reservoir  corporation  may  flow  the  land 
of  other  persons  by  its  reservoir  dam,  and  a  person  whose  land  or  prop- 
erty has  been  flowed  or  injured  by  such  dam,  unless  compensation  has 
been  otherwise  made,  may  obtain  compensation  therefor  as  provided 
in  this  chapter. 

Section  43.  The  court  in  which  a  petition  for  such  compensation 
is  pending  shall,  if  requested  by  the  petitioner,  require  such  corporation 
to  give  satisfactory  security  for  the  payment  of  all  damages  and  costs 
which  may  be  awarded  thereon;  and  if,  upon  petition  and  notice  to 
the  corporation,  the  court  finds  that  the  security  has  become  insufl[i- 
cient,  it  shall  require  the  corporation  to  give  further  security.  If  the 
corporation  neglects  for  one  month  or  for  such  further  time  as  the  court 
allows  to  comply  with  any  such  order,  it  shall  lose  all  rights  under  this 
chapter,  and  the  court  may  restrain  it  from  flowing  or  injuring  such 
land  or  property  until  such  security  has  been  given. 


S.\FETY    OF    RESERVOIRS   AND   DAMS. 


Reservoir,  etc 
not  to  be 


Section  44.     A  reservoir,   reservoir  dam  or  mill  dam  shall  not  be 

a°terld!°unti"  constructcd  or  materially  altered  until  plans  and  specifications  of  the 

^^s'lw'iii   proposed  work  have  been  filed  with  and  appro\ed  by  the  county  com- 

R.  L.  196,  §  44.  missioners  of  the  county  where  it  is  situated.    Said  commissioners  shall 

retain  and  record  such  plans  and  specifications  and  shall  inspect  the 

work  during  its  progress;   and  if  at  any  time  it  appears  that  the  plans 

and  specifications  are  not  faithfully  adhered  to,  they  may  appoint  an 

inspector  to  be  constantly  engaged  at  the  expense  of  the  owners  in  the 

supervision  of  the  work.    Upon  a  refusal  of  the  owners  or  of  their  agents 

to  adhere  to  said  plans  and  specifications,  said  inspector  may  order  the  10 

discontinuance  of  the  work.    This  and  the  six  following  sections  shall  11 

not  apply  to  small  dams,  constcucted  for  irrigation  or  for  other  pur-  12 

poses,  the  breaking  of  which  would  involve  no  risk  to  life  or  property.       13 


Chap.  253.]  mills,  dams  and  reservoirs.  2637 

1  Section  45.     The  county  commissioners  shall,  as  often  as  once  in  Examination 

2  three  years,  if  in  their  judgment  the  public  good  requires  it,  thoroughly  dam'^"""^  °' 

3  examine  every  reservoir,  reservoir  dam  and  mill  dam,  by  the  breaking  a.^tul'.lh. 

4  of  which  loss  of  life  or  damage  to  a  road  or  bridge  is  likely  to  be  caused,  ^^i'lgo'Ha 

5  and  they  shall  at  any  time  make  such  examination  upon  written  ap-  j|9i'  ^is- 

6  plication  by  the  aldermen  of  the  city  or  selectmen  of  the  town  where  §§  i.  s.  ' 

7  such  damage  is  likely  to  be  caused  or  by  a  person  whose  property  is     '   ' 

8  likely  to  be  so  damaged.    Such  examination  shall  be  made  after  notice 

9  to  the  owner  of  such  reservoir  or  dam  or  to  his  agent  and,  if  made  upon 

10  such  application,  it  shall  be  by  the  commissioners  personally  with  the 

11  aid  of  a  competent  engineer.    In  other  cases,  the  commissioners  may 

12  cause  it  to  be  made  by  a  competent  engineer,  who  shall  report  to  them 

13  in  writing  whether  he  considers  it  safe  and  in  good  condition  and,  if 

14  not,  its  condition  in  detail  and  the  work  or  change  required  for  safety 

15  and  the  public  good.     The  engineer  shall  be  allowed  by  the  commis- 

16  sioners  a  reasonable  compensation  for  his  services,  which  shall  be  paid 

17  by  the  county. 

1  Section  46.     If,  upon  such  examination,  the  structure  is  not,  in  the  Alterations  or 

2  judgment  of  the  commissioners,  sufficiently  strong  to  resist  the  action  iso4,'^327,  §  i. 

3  of  the  water  under  any  circumstances  which  may  reasonably  be  expected  is?!',  i Is,  §  3*' 

4  to  occur,  they  shall,  with  the  advice  of  an  engineer,  determine  and  ^^^^  99''/2^*' 

5  direct  what  alterations  or  repairs  are  required  to  make  the  structure  R  l.  ig'e,  §  46. 

6  permanent  and  secure,  and  shall  in  writing  order  the  owners  thereof  to 

7  make  such  alterations  or  repairs  within  a  reasonable  time,  and  the  re- 

8  suits  of  such  examination  and  the  orders  thereon  shall  be  duly  recorded 

9  by  said  commissioners. 

1  Section  47.     If  the  owner  of  a  reservoir  or  dam  which  has  been  so  Proceedings 

2  examined  and  adjudged  to  be  unsafe  refuses  or  neglects  to  make  such  "ocompi'jl^with 

3  alterations  or  repairs  as  the  commissioners  order,  they  shall  cause  such  i854,'32"' 

4  reservoir  or  dam,  or  such  parts  thereof  as  they  may  consider  necessary  ^  |  ^;jg 

5  for  the  safety  of  life,  property,  roads  or  bridges  on  the  stream  below,  f liP'.^'Jj' 

6  to  be  removed  or  the  water  to  be  drawn  off.    After  such  removal,  no  p.  s.'i90.'§s5. 

7  structure  shall  be  erected  except  in  compliance  with  the  three  preceding 

8  sections;    and  after  the  water  has  been  drawn  off,  the  reservoir  shall 

9  not  be  filled  again  until  the  orders  of  the  commissioners  have  been  com- 
10  plied  with. 

1  Section  48.    The  commissioners  shall  make  such  orders  as  to  the  Costs. 

2  costs  of  all  proceedings  under  the  three  preceding  sections  as  they  may  G^s.'iw.'lsi. 

3  consider  just;  but  if  the  reservoir  or  dam  is  adjudged  unsafe,  said  costs  p^^i'igo'^ie. 

4  shall  be  paid  by  the  owner.  R.  l.  i96,  §  4s. 

1  Section  49.    No  order,  approval,  request  or  advice  of  the  county  Acts  of  com- 

2  commissioners  shall  impair  the  legal  duties  and  obligations  of  the  owners  tolmpatrua- 

3  of  reservoirs,  reservoir  dams  or  mill  dams  or  their  liability  for  the  con-  ists^'k'I,  §  e. 

4  sequences  of  their  illegal  acts  or  of  the  neglect  or  mismanagement  of  f^  l.\^9o, V^. 

5  their  servants  or  agents. 

1  Section  50.     The  supreme  judicial  and  the  superior  courts  shall  have  Jurisdiction. 

2  jm-isdiction  in  equity  to  enforce  the  six  preceding  sections. 

G.  S.  149.  §  52.  1875,  17S,  §  7.  P.  S.  190,  §  58.  li.  L.  196,  §  50. 


2638  MILLS,    D.iAIS   -\KD   RESERVOIRS.  [CH-VP.    253. 


REPAIRING   ,UsT)   REBUILDING   MILLS   AND   MILL  DAMS. 

Power  of  Section  51.     If  a  mill  which  is  owned  by  joint  tenants  or  tenants  in  1 

majority  to  i>  i  -ii  •  • 

repair,  etc.        common,  OF  the  dam  or  appurtenances  or  such  mill,  require  repairs  or  2 

1795, 74,  §6.  ■  rebuilding  in  whole  or  in  part,  and  all  the  proprietors  do  not  agree  to  join  3 

g! s!  149]  §  5.3!  therein,  a  majority  in  interest  of  the  proprietors  may  cause  the  Mork  to  4 

R.L,'i96,\^5i.  be  done  at  the  expense  of  the  whole  in  proportion  to  their  respective  5 

interests.  6 

pJoprieto?a  SECTION  52.     One  or  more  of  the  proprietors  may  call  a  meeting  by  a  1 

i795~74'i'5  ^'   notice  signed  by  the  person  or  persons  who  call  it,  addressed  to  each  of  2 

R.  s.'iie,  §45.  the  other  proprietors,  stating  that  the  mill,  dam  or  appurtenances  re-  3 

p.' s.' 190,' §60.'  quire  repairs  or  rebuilding  and  that  their  attendance  is  requested  at  a  4 

■   ■  ■'^         ■  meeting  of  the  proprietors  thereof  at  the  mill  at  a  time  named  to  consult  5 

and  agree  upon  the  measures  to  be  taken  for  such  purpose.  6 

1709^10, 3,  §  1.      Section  53.     The  notice  shall  be  served  by  an  officer  qualified  to  serve  1 

R  ^1'  ne  ^  ^'     cW\\  process  by  delivering  an  attested  copy  thereof  to  each  proprietor,  2 

G  1^149  5  55    °^  ^y  leaving  such  copy  at  his  last  and  usual  place  of  abode,  not  less  than  3 

p.'s.i9o,'§6i.'  seven  nor  more  than  thirty  days  before  the  day  appointed  for  the  meet-  4 

ing,  and  such  officer's  return,  specifying  the  persons  on  whom  he  has  5 

served  the  notice  and  the  time  and  manner  of  the  service  on  each,  shall  6 

be  sufficient  evidence  thereof.  7 

i709^io,°3,^'§  2.      Section  54.     At  such  meeting,  or  at  any  adjournment  thereof,  the  1 

R^i'.neS^is.  majority  in  interest  of  the  proprietors  of  the  mill  may  take  measures  2 

p' I'  i9o'  1 62    to  cause  the  mill  or  the  dam  or  appurtenances  thereof  to  be  repaired  or  3 

R.  L.  196,  §  54.  rebuilt,  as  they  shall  consider  most  for  the  interest  of  all  concerned  therein.  4 

of^llTpeSe"™*       Section  55.     Each  proprietor  shall,  upon  demand,  after  the  work  is  1 

r7°o9-io,  3,  §  2.  completed,  pay  to  the  proprietors  by  whom  it  has  been  advanced  his  just  2 

R ^s' ne \^49    ^n*^  equal  part  of  the  expense  of  such  repair  or  rebuilding,  in  proportion  to  3 

G.  s.  149!  §  57.  liis  share  or  interest  in  the  mill,  with  interest  from  the  time  of  the  advance.  4 

p.  S.  190,  §  63.  R.  L.  196,  §  55. 

^^rat^"''''         Section  56.     The  proprietors  who  advance  the  money  so  expended  1 

R^l'ue^^so    ^^^^'  have  a  lien  therefor  on  the  rents  and  profits  of  the  mill  and  may  re-  2 

G.  1. 149^  1 68.  tain  so  much  thereof  as  belongs  to  any  proprietor  indebted  to  them  for  3 

R.  L.  196,  §56.  such  advance,  to  be  applied  to  the  pajinent  of  his  debt;   or  they  may  4 

maintain  an  action  for  the  debt  or  for  as  much  thereof  as  has  not  been  5 

received  from  the  rents  and  profits.  6 


9 


^d?f'|w-         Section  57.     The  guardian  of  a  proprietor  may  act  for  him  in  calling  1 
i79s!'74,  §  7.     or  attending  a  meeting  of  the  proprietors,  and  may  there  vote  and  do  all 

R.  s.  116,  §  51.  such  other  acts  as  the  ward  could  do  if  competent  to  act.  3 

G.  S.  149,  §  59.  P.  S.  190,  §  65.  R.  L.  196,  §  57. 

oUx°p1L°ef''°'       Section  58.     If  part  of  the  mill  is  held  by  a  tenant  for  life  or  years,  1 

f'oriife''!Jr''^eare    *^^^  amount  duc  for  the  repairs  and  other  ex-penses  on  that  part  of  the  2 

and  remainder-  mill  shall  be  apportioned  on  the  tenant  for  life  or  years  and  on  the  re-  3 

1795, 74,  §  7.     mainderman  or  reversioner  in  proportion  to  the  value  of  their  respective  4 

o'.  s.  149!  §  6o!  interest;  and  the  person  to  whom  the  money  is  due  from  such  remainder-  5 

R.L. '196,^58.  man  or  reversioner  shall  have  a  lien  on  the  rents  and  profits  belonging  6 


Ch.\p.  254.] 


LIENS   ON   BUILDINGS  AND   LAND. 


2639 


7  to  him  after  his  estate  comes  into  possession,  if  not  sooner  paid,  notwith- 

8  standing  any  limitation  by  lapse  of  time. 

1  Section  59.     A  mortgagee  in  possession  shall  be  considered  a  pro-  if  proprietor 

2  prietor  for  the  pm-poses  of  this  chapter;    but  if  the  action  is  brought  hfs^nte^llt.^'^'^ 

3  against  the  mortgagor  before  his  right  of  redemption  has  been  foreclosed,  J^'^l'  Jf^  ^54 

4  he  shall  also  be  liable  for  all  amounts  so  due  on  account  of  his  share  p- 1- 1|9, 1 6i. 

5  of  the  mill,  so  far  as  the  same  have  not  been  recovered  from  the  mort-  R-  l.  i96,  §  59. 

6  gagee.     All  amounts  paid  on  this  account  by  the  mortgagee  shall  be 

7  allowed,  between  him  and  the  mortgagor,  as  so  much  paid  for  repairs  or 

8  improvements. 


1  Section  60.     A  tenant  in  tail  of  a  part  of  a  mill  shall,  for  the  purposes  Tenant  in  tail, 

2  of  this  chapter,  be  considered  the  proprietor  thereof  in  fee  simple.  r"!.' iie.Vss. 

G.  S.  149,  §  62.  P.  S.  190,  §  68.  R.  L.  196,  §  60. 


1  Section  61.     All  amounts  due  from  one  proprietor  to  another  for  Recovery  of 

2  money  advanced  under  this  chapter  may  be  recovered  in  contract 

3  if  two  or  more  proprietors  are  so  indebted,  by  a  suit  in  equity. 

4  amount  so  recovered   shall   be  apportioned  by  the  court  amon 

5  plaintiffs,  if  more  than  one,  according  to  their  respective  rights. 


diit^  lor  repairs. 
rpu_  R.  S.  U6,  §56. 
-•^"C  G  s.  149,  §  63. 

tVlp  P.  S.  190,  §  69. 

"-"^  R.  L.  196,  §  61. 


1  Section  62.    This  chapter  shall  not  affect  any  contract  or  agreement  Contracts  be- 

r»  T  1  1  •  p  Ml  1  •  1      •!  T         tween  parties. 

2  by  or  between  the  proprietors  or  a  mill  as  to  the  repair  or  rebuilding  i709-io,  s,  §  4. 

3  thereof.  R.  s.  iie,  §58. 


G.  S.  149,  §  64. 


p.  S.  190,  §  70. 


R.  L.  196,  §  62. 


4  Mass.  559. 


MILLERS. 


1  Section  63.     A  miller  occupying  and  using  a  grist  mill  who  neglects  Miners  to  keep 

2  to  provide  himself  with  scales  and  weights  or  a  vibrating  steelyard  to  c.^L.^io6'!§ 2. 

3  weigh  corn,  grain  and  meal  to  and  from  the  mill,  when  required,  or  who  i72s-9?6f'  ^  ^ 

4  refuses  so  to  weigh  corn,  grain  or  meal  when  required,  shall  for  each  flgg'-l  19  §  s 

5  offence  forfeit  to  any  person  who  sues  therefor  not  more  than  five  dollars.  J7®o  •  I'h  ^A,. 

*■  K.  0,  Ufa,  §  o9. 

G.  S.  149,  §  65.  P.  S.  190,  §  71.  R.  L.  196,  §  63. 


1  Section  64.     The  toll  for  grinding  any  kind  of  grain  shall  not  exceed  J°l-  joe  §  2 

2  one  sixteenth  part  thereof. 

1709-10,  3,  §  3.  1762-3,  19,  §  6.  R.  S.  116,  §  60.  P.  S.  190,  §  72. 

172S-9,  6,  §  2.  1795,  74,  §  9.  G.  S.  149,  §  66.  R.  L.  196,  §  64. 


CHAPTER    254. 

LIENS   ON   BUILDINGS   AND   LAND. 


Sect. 

1.  Lien  for  labor. 

2.  Lien    in    case 

Notice. 

3.  Labor   or   material   subsequently 

nished  or  performed. 

4.  Same  subject.    Written  contract. 

5.  Bill  in  equity  to  enforce  lien. 

6.  Public  property  exempted. 


of    written     contract. 


fur- 


Sect. 
7.  Lien  invalid  against  prior  mortgage. 
S.  Lien  dissolved  unless  statement  is  filed. 
9.  Recording  and  inspection  of  statement. 

10.  Dissolution  by  notice. 

11.  When  bill  to  be  filed.     Inaccuracy  in 

statement,  etc. 

12.  Dissolution  by  bond  in  case  of  personal 

labor. 


2640 


LIEXS   OX   BVILDEsGS   .\XD   L.\XD. 


[CH.VP.    254. 


Sect. 

13.  When    attachments    do    and    do    not 

prevail.      Attaching    creditors,    how 
paid,  as  between  themselves. 

14.  Dissolution  by  bond  of  creditor. 

15.  Dissolution  by  decree  of  court. 

16.  Trial. 

17.  Claims  allowed. 

18.  Sale. 

19.  Notice  of  sale. 

20.  Redemption. 


Sect. 

21.  Distribution. 

22.  Costs. 

23.  Bill  against  heirs  or  assigns  of  original 

owner. 

24.  Bill   by  executor   or   administrator  of 

creditor. 

GENERAL   PROVISIONS. 

25.  Sale  of  estate  less  than  a  fee  simple. 

26.  Action  at  law  not  barred. 


Lien  for  labor. 
1820,  2S1. 
R.  S.  117.  §  1. 

1851,  343.  §  1. 

1852,  307,  I  1. 
1855,  431.  §  1. 
G.  S.  150.  §  1. 
1872,  318,  §  1. 
P.  S.  191, 
5§1,2. 
1900,  256. 

R.  L.  197, 

5§1.2. 

1915,  292, 

§1  1,  13. 

5  Cush.  119. 

1  Gray.  297, 

576. 


Section  1.  A  person  to  whom  a  debt  is  due  for  personal  labor  per- 
formed in  the  erection,  alteration,  repair  or  removal  of  a  building  or 
structure  upon  land,  by  virtue  of  an  agreement  with,  or  by  consent  of, 
the  owner  of  such  building  or  structure,  or  of  a  person  having  authority 
from  or  rightfully  acting  for  such  owner  in  procuring  or  furnishing  such 
labor,  shall,  under  the  provisions  of  this  chapter,  other  than  sections 
three  and  four,  have  a  lien  upon  such  building  or  structure  and  upon  the 
interest  of  the  owner  thereof  in  the  lot  of  land  upon  which  it  is  situated, 
for  not  more  than  eighteen  days'  work  actually  performed  during  the 
forty  days  next  prior  to  his  filing  a  statement  as  provided  in  section  eight. 


3  Gray,  233. 

136  Mass.  314. 

13  Gray,  311,414. 

140  .Mass.  256. 

526 

11  Allen,  444. 

143  Mass.  105. 

105  Mass.  345. 

147  Mass.  493. 

106  Mass.  228,  528,  531. 

148  Mass.  104. 

112  Mass.  18. 

loo  Mass.  549. 

115  Mass.  429. 

156  Mass.  205, 

355 

117  Mass.  167,  176. 

160  Mass.  48. 

120  Mass.  58. 

162  Mass.  593. 

123  Mass.  45.  570. 

163  Mass.  7. 

124  Mass.  404. 

164  Mass.  146. 

126  Mass.  148. 

165  Mass.  113, 

429. 

129  Mass.  570. 

169  Mass.  351. 

131  Mass.  177. 

170  Mass.  50. 

171  Mass.  294. 
179  Mass.  153. 
182  Mass.  150. 
189  Mass.  53. 
191  Mass.  458. 
199  Mass.  480. 
204  Mass.  494. 
211  Mass.  169. 
216  Mass.  41. 
219  Mass.  463. 
227  Mass.  446. 

233  Mass.  112. 

234  Mass.  210. 


150. 


Lien  in  case 

of  written 

contract. 

Notice. 

1855, 431, 

§U,4. 

G.  S.  150, 

l§2,4. 

1872,318,  §3. 

P.  S.  191, 

§§1-4. 

1898,  562,  §  77. 

R.  L.  128, 

§  76;  197, 

§§  1.3.4. 

1915,  292, 
§§  2,  13. 

1916,  306,  §  1. 
7  Gray.  429. 

2  Allen,  424. 
5  AUen,  403, 
540 

7  AJlen,  412. 

8  Allen,  543, 
573 

11  Allen,  152. 
101  Mass.  435. 
106  Mass.  52S. 
112  Mass.  309. 
116  Mass.  374. 
124  Mass.  516. 
126  Mass.  169, 
274,  309. 
128  Mass.  108. 
141  Mass.  280, 
523. 

144  Mass,  534. 
147  Mass.  493. 


Section  2.  A  person  entering  into  a  written  contract  with  the  owner 
of  land  for  the  whole  or  any  part  of  the  erection,  alteration,  repair  or 
removal  of  a  building  or  structure  upon  land,  or  for  furnishing  material 
therefor,  shall  have  a  lien  upon  said  building  or  structure  and  upon  the 
interest  of  the  owner  in  said  lot  of  land  as  appears  of  record  at  the  date 
when  notice  of  said  contract  is  filed  or  recorded  in  the  registry  of  deeds 
for  the  county  or  district  where  such  land  lies,  to  secure  the  pajTnent 
of  all  labor  and  material  which  shall  thereafter  be  furnished  by  virtue  8 
of  said  contract.  Said  notice  may  be  filed  or  recorded  by  any  person  9 
entitled  under  this  chapter  to  enforce  a  lien,  and  shall  be  in  substantially  10 
the  following  form:  11 

Notice  is  hereby  given  that  by  ^-irtue  of  a  written  contract,  dated  , 

between  ,  omier,  and  ,  contractor,  said  contractor  is  to 

furnish  labor  and  material  for  the  erection,  alteration,  repair  or  removal  of  a 
building  on  a  lot  of  land  described  as  follows: 

Said  contract  is  to  be  completed  on  or  before 

A  notice  of  any  extension  of  such  contract,  stating  the  date  to  which  12 

it  is  extended,  shall  also  be  filed  or  recorded  in  the  said  registry  prior  to  13 

the  date  stated  in  the  notice  of  the  contract  for  the  completion  thereof,  14 

and  may  be  filed  by  any  party  entitled  to  file  the  original  notice.  15 


155  Mass.  549. 

158  Mass.  71,  468.  552. 

159  Mass.  124.  206. 
168  Mass.  467. 

172  Mass.  597. 

173  Mass.  332. 
178  Mass.  163,  238, 
260,  288. 


182  Mass.  150,  480. 
188  Mass.  401. 
190  Mass.  168. 
192  Mass.  175. 

198  Mass.  56. 

199  Mass.  480. 
201  Mass.  484. 
204  Mass.  122,  494. 


213  Mass.  159.  456. 
216  Mass.  81. 
219  Mass.  463. 

226  Mass.  148. 

227  Mass.  446. 

233  Mass.  264,  314. 

234  Mass.  210. 


CH.A.P.    254.]  LIENS    ON    BUILDINGS   -tXD    LAND.  2641 

16  Such  notices,  and  all  other  instruments  hereinafter  required  to  be  Notices,  etc., 

17  filed  or  recorded  in  the  registry  of  deeds,  affecting  registered  land  shall  registered  land. 

18  be  filed  and  registered  in  the  manner  prescribed  by  section  seventy- 

19  eight  of  chapter  one  hundred  and  eighty-five.     Such  notices,  and  all 

20  other  instruments  hereinafter  required  to  be  filed  or  recorded  in  the 

21  registry  of  deeds,  affecting  unregistered  land  shall  be  indexed  in  a  separate 

22  book  to  be  kept  for  that  purpose. 

23  If  registered  land  is  included  with  unregistered  land  in  any  such  notice 

24  or  other  instrument,  an  attested  copy  thereof  shall  be  filed  with  the 

25  assistant  recorder  and  registered. 

1  Section  3.    If  the  notice  aforesaid  shall  have  been  filed  or  recorded  Labor  or 

,  •  1     1  material  sub- 

2  m  the  registry  of  deeds,  as  herembefore  provided,  any  person  who  shall,  f'>"''?*'y 

3  subsequent  to  the  date  of  filing  or  recording  notice  of  said  contract,  furnish  performed. 

4  labor  or  material,  or  perform  labor,  under  a  contract  with  the  contractor  isie]  sou!  §  2. 

5  or  with  any  sub-contractor  of  said  contractor,  shall  be  entitled  to  enforce  ^'^^  *^''^'''  ^^°' 

6  a  lien  on  the  premises  therein  described  for  any  labor  performed,  or  labor 

7  or  material  furnished,  subsequent  to  the  filing  or  recording  of  said  notice 

8  and  prior  to  the  date  of  the  termination  of  said  contract  as  stated  in  said 

9  notice  or  notices. 

1  Section  4.     Whoever,  subsequent  to  the  date  of  the  original  con-  Same  subject. 

2  tract,  furnishes  labor  or  material,  or  both  labor  and  material,  or  per-  tract.''"  '^°" 

3  forms  labor,  under  a  written  contract  with  a  contractor,  or  with  a  sub-  op'^^cf.'  ^ '' 

4  contractor  of  such  contractor,  may  file  in  the  registry  of  deeds  for  the  ^^®^^^  ^'^• 

5  county  or  district  where  such  land  lies  a  notice  of  his  contract  substan- 

6  tially  in  the  following  form: 

Notice  is  hereby  given  that  by  ■^'irtue  of  a  written  contract  dated  , 

between  ,  contractor  (or  sub-contractor),  and  said 

is  to  furnish  labor  or  material,  or  both  labor  and  material,  or  per- 
form labor  in  the  erection,  alteration,  repair  or  removal  of  a  building  or  stmcture 
by  ,  contractor,  for  ,  owner,  on  a  lot  of  land  described 

as  follows: 

Said  contract  is  to  be  completed  on  or  before  .  , 

7  A  notice  of  any  extension  of  such  contract,  stating  the  date  to  which 

8  it  is  extended,  shall  also  be  filed  or  recorded  in  said  registry  prior  to  the 

9  date  stated  in  the  notice  of  the  contract  for  the  completion  thereof. 

10  Upon  filing  a  notice,  as  hereinbefore  provided,  and  giving  actual  notice 

11  to  the  owner  of  such  filing,  the  sub-contractor  shall  have  a  lien  to  secure 

12  the  payment  of  all  labor  and  material,  which  he  shall  thereafter  furnish, 

13  upon  the  building  or  structure,  and  upon  the  interest  of  the  owner,  as 

14  appears  of  record  at  the  time  of  such  filing,  in  the  lot  of  land  on  which 

15  said  building  or  structure  is  situated.    But  such  lien  shall  in  no  event 

16  exceed  the  amount  due  or  to  become  due  under  the  original  contract  when 

17  notice  of  the  filing  of  the  sub-contract  is  given  by  the  sub-contractor  to 

18  the  owner;  and  the  time  for  the  performance  of  the  contract  of  the  sub- 

19  contractor  shall  not  be  extended  beyond  the  time  for  the  performance  of 

20  the  original  contract  and  any  extension  thereof,  if  the  objection  thereto 

21  of  the  owner  is  filed  in  the  registry  of  deeds  and  actual  notice  of  such 

22  objection  is  given  by  the  owner  to  the  sub-contractor  within  five  days 

23  after  the  owner  received  notice  of  tlie  filing  of  the  contract  as  provided 

24  in  this  section. 


2642 


LIENS   ON   BUILDINGS   AND   L.\ND. 


[Ch.\p.  254. 


Bill  in  equity 
to  enforce  lien. 
1819,  156, 
§§  1-3. 
R.S.  117, 
§§  3-5,  7-10, 
30,31. 

1851,343,  §4. 
1852,  307,  §  2. 
1855,431, 
K5,6. 
1858,  55. 
G.  S.  150, 
§§  7-9,  11-17, 
37,  38. 

1871,343,  §3. 
P.  S.  191, 
B  9-11,  13, 
15-20,39,40. 
1888,  344, 
§§1-3. 

1893,  396,  §  12. 
1894,431. 
R.  L.  197. 
§§  9-14,  24. 
1908,  127. 
1915,  292, 
§§4,13. 
1916,306.  §3. 

4  Cush.  532. 

5  Cush.  119. 
3  Allen,  458. 
103  Mass.  227. 
118  Mass.  595. 
129  Mass.  570. 


Section  5.     All  proceedings  to  enforce  a  lien  upon  land  for  the  erec-  1 

tion,  alteration,  repair  or  removal  of  a  building  or  other  structure,  shall  2 

be  begun  by  bill  in  equity  filed  in  the  superior  court  for  the  county  where  3 

the  land  lies.    The  petitioner  shall  bring  his  bill  in  his  own  behalf  and  in  4 

behalf  of  all  other  persons  in  interest  who  shall  become  parties.    The  o 

subpoena  shall  be  returnable  not  more  than  sixty  days  subsequent  to  the  6 

entry  of  the  bill  and  shall  contain  a  brief  description  of  the  property,  7 

sufficient  to  identify  it,  and  a  statement  of  the  amount  alleged  to  be  due.  8 

An  attested  copy  thereof  shall  be  filed  in  the  registry  of  deeds  and  re-  9 

corded  as  provided  in  section  nine.     All  other  parties  in  interest  may  10 

appear  and  have  their  rights  determined  in  such  bill,  and  at  any  time  11 

before  a  final  decree,  upon  the  suggestion  of  any  party  in  interest  that  12 

any  other  person  is  or  may  be  interested  in  the  suit,  or  of  its  own  motion,  13 

the  court  may  issue  a  subpoena  to  such  person,  or  a  precept  directing  14 

him  to  appear  in  said  cause  on  or  before  a  clay  certain  or  be  forever  15 

barred  from  any  rights  thereunder.    The  court  may  in  its  discretion  pro-  16 

vide  for  notice  to  absent  parties  in  interest.    The  terms  "party  in  in-  17 

terest"  and  "person  in  interest",  as  u.sed  in  this  chapter,  shall  include  18 

mortgagees  and  attaching  creditors.          i4i  Mass.  273.         lei  Mass.  462.  19 

175  Mass.  34. 

176  Mass.  164. 
178  Mass.  163. 


164  Mass.  144. 
168  Mass.  435. 
170  Mass.  449. 


187  Mass.  513. 
191  Mass.  133. 
217  Mass.  33. 


Spt?"""*''      Section  6.     No  lien  shall  attach  to  any  land,  building  or  structure     1 
s^AUenflbl.^"    thereon  owned  by  the  commonwealth,  or  by  a  county,  city,  town,  water    2 

114  Mass.  476.     qj.  gpg  district.  204  Mass.  494.  226  Mass.  148.  3 


Lien  invalid 
against  prior 
mortgage. 
1852,307,  §  1. 
G.  S.  150,  §  3. 
P.  S.  191,  §  6. 
R.  L.  197,  §  6. 
1915,  292, 
§§  6.  13. 
1916,306,  §4. 
5  Cush.  119. 
103  Mass.  470. 
109  Mass.  411. 


Section  7.  No  lien,  except  under  section  one,  shall  avail  as  against  a 
mortgage  actually  existing  and  duly  registered  or  recorded  prior  to  the 
filing  or  recording  in  the  registry  of  deeds  of  the  notice  required  by  this 
chapter,  and  no  lien  under  section  one  shall  avail  as  against  such  a  mort- 
gage unless  the  work  or  labor  performed  is  in  the  erection,  alteration, 
repair  or  removal  of  a  building  or  structure  which  erection,  alteration,  re- 
pair or  removal  was  actually  begun  prior  to  the  recording  of  the  mortgage. 


117  Mass.  167,  176. 

120  Mass.  408. 

121  Mass.  418. 
136  Mass.  314. 
155  Mass.  649. 
160  Mass.  48. 


161  Mass.  462. 
168  Mass.  538. 
170  Mass.  311. 
172  Mass.  553. 
177  Mass.  506. 


182  Mass.  150. 

191  Mass.  424. 

192  Mass.  175. 
214  Mass.  92,  121. 
Op.  A.  G.  (1919)  112. 


Lien  dissolved 
unless  state- 
ment is  filed. 
1851,343,  §  2. 
1855,431.  I  2. 
G.  S.  150,  §  5. 
1872,  318,  §  2. 
1874,321,  §4. 
1877,  93,  §  1.     ■ 
P.  S.  191,  §6. 
1892,  191. 
R.  L.  197,  §  6. 
1915,  292, 
§§  7,  13. 
1918,265,  I  3. 

7  Gray,  429. 
13  Gray,  3U. 

8  Allen,  690. 

109  Mass.  395. 

110  Mass.  116. 

116  Mass.  375. 

117  Mass.  167, 
179. 

119  Mass.  459. 

120  Mass.  58, 
510. 

124  Mass.  404, 

548. 

126  Mass.  276. 


Section  8.  Liens  under  sections  two  and  three  shall  be  dissolved  1 
unless  the  contractor,  or  some  person  claiming  by,  through  or  under  him,  2 
shall,  within  thirty  days  after  the  date  on  which  the  principal  contract  3 
is  to  be  performed,  file  in  the  registry  of  deeds  in  the  county  or  district  4 
where  the  land  lies  a  statement,  signed  and  sworn  to  by  him,  or  by  some  5 
person  in  his  behalf,  giving  a  just  and  true  account  of  the  amount  due  6 
him,  with  all  just  credits,  a  brief  description  of  the  property,  and  the  7 
names  of  the  owners  as  set  forth  in  the  notice  of  contract.  A  lien  under  8 
section  four  shall  be  dissolved  unless  the  sub-contractor,  or  some  person  9 
claiming  by,  through  or  imder  him,  shall,  within  thirty  days  after  the  10 
date  on  which  the  contract  of  said  sub-contractor  is  to  be  performed,  file  11 
in  the  registry  of  deeds  in  the  county  or  district  where  the  land  lies  12 
a  statement,  signed  and  sworn  to  by  him,  or  by  some  person  in  his  behalf,  13 
giving  a  just  and  true  account  of  the  amount  due  him,  with  all  just  credits,  14 
a  brief  description  of  the  property,  and  the  names  of  the  owners  as  set  15 
forth  in  the  notice  of  contract.    A  lien  under  section  one  shall  be  dissolved  16 


Chap.  254.]  liens  on  buildings  and  land.  2643 

17  unless  a  like  statement,  giving  the  names  of  the  owners  of  record  at  the  128  Mass.  5.34. 

18  time  the  work  was  performed  or  at  the  time  of  filing  the  statement,  is  filed  142  Mass'  sa ' 

19  within  the  forty  days  provided  in  said  section. 

143  Mass.  3S0.  161  Mass.  338,402.  179  Mass.  360.  211  Mass.  169. 

145  Mass.  565.  163  Mass.  7.  183  Mass.  375.  213  Mass.  456. 

148  Mass.  280.  167  Mass.  136.  187  Mass.  417.  215  Mass.  582. 

151  Mass.  129.  168  Mass.  435.    '  198  Mass.  56.  217  Mass.  33. 

154  Mass.  590.  171  Mass.  231.  204  Mass.  122.  231  Mass.  418. 

156  Mass.  317.  175  Mass.  167,  175.  205  Mass.  407.  234  Mass.  210. 

159  Mass.  202, 206.         176  Mass.  104.  208  Mass.  583. 

1  Section  9.     Any  statement  provided  for  in  section  eight  shall  remain  Recording  and 

2  in  the  custody  of  the  register  and  be  open  to  public  inspection.    He  shall  statement." 

3  record  it  in  a  book  kept  therefor,  but  the  items  of  the  account,  except  the  g*^|;  fio,  1 1." 

4  total  amount  claimed  due,  may  be  omitted  from  the  record. 

1S75,  20.  1877,  93,  §  2.  P.  S.  191.  §  7.  R.  L.  197,  §  S. 

1  Section  10.     The  lien  of  any  person  may,  so  far  as  his  interest  is  Dissolution 

2  concerned,  be  dissolved  by  a  notice  signed  by  him,  stating  that  his  lien  isia^isft  §  6. 

3  is  dissolved,  filed  in  the  registry  of  deeds  where  the  notice  of  the  contract  is43',  343, 1  s^' 

4  is  filed  under  which  contract  the  lien  is  claimed. 

G.  S.  140,  §41.  1891,244.  1915,  292,  §  13. 

P.  S.  191,  §  45.  R.  L.  197,  §  31.  1918,  265,  §  2. 


1       Section  11.     The  lien  shall  be  dissolved  unless  a  bill  in  equity  to  whenbiin 

be  filed.     I 
accuracy  in 


2  enforce  it  is  filed  within  sixty  days  after  the  filing  of  the  statement  re-  ^^  ''''"^'    ^'" 


3  quired  by  section  eight.    The  validity  of  the  lien  shall  not  be  affected  by  ia5'|™3°*'§'*3''' 

4  an  inaccuracy  in  the  description  of  the  property  to  which  it  attaches,  if  plilf'lg' 

5  the  description  is  sufficient  to  identify  the  property,  or  by  an  inaccuracy  isai  wi- 

6  in  stating  the  amount  due  for  labor  or  material  unless  it  is  shown  that  §§7,'9.  '' 

7  the  person  filing  the  statement  has  wilfully  and  knowingly  claimed  more  §§  s,'i3.'" 

8  than  is  due  him. 

6  Gray,  531.  108  Mass.  103.  163  Ma.ss.  7.  199  Mass.  480. 

7  Gray.  429.  141  Mass.  273.  164  Mass.  410.  205  Mass.  407. 
13  Gray,  100.                   148  Mass.  280.                 168  Mass.  435.                        211  Mass.  169. 

2  Allen,  424.  154  Mass.  590.  176  Mass.  83,  164.  210  M.ass.  41. 

3  Allen,  464.  161  Mass.  402.  17.8  Mass.  2SS.  217  Mass.  33. 

8  Allen,  590.  162  Mass.  432.  189  Mass.  53.  234  Mass.  210. 

1  Section  12.     Any  person  in  interest  may  cause  to  be  recorded  in  the  Dissolution  by 

2  registry  of  deeds  in  the  county  or  district  where  the  land  lies  a  bond  pereonai'iabor. 

3  having  as  surety  a  company  or  corporation  authorized  to  do  a  surety  §§'1^-3^^' 

4  business  in  the  commonwealth  or  individual  sureties   as   herein  pro-  Jt'/'s^' 

5  vided,  in  which  bond  the  register  of  deeds  and  his  successors  in  office  shall  r^'|-,i^^' 
G  be  obligees,  in  a  penal  sum  fixed  by  the  building  commissioner  or  other  i895"'404. 

7  officer  performing  like  duties  under  any  statute,  ordinance  or  by-law  of  ino6,'  223.' 

8  a  town  wdiere  the  land  in  question  lies,  or,  if  there  is  no  such  officer,  by  a  loil;  Ml', 

9  justice  or  clerk  of  a  court  having  jurisdiction  in  the  locality  where  the  loo^Kifss.  340. 

10  land  lies.    The  bond  shall  describe  the  land  in  such  detail  as  is  required  o'l'l  jJa^' tol" 

11  in  a  common  conveyance  of  land,  and  shall  be  in  form   substantially  228  Mass.  58i, 

12  as  follows:  230' Mass.  259. 

Know  all  Men  by  these  Presents. 

That  we  of  in  the  County  of 

and  Commonwealth  of  Massachusetts,  as  principal,  and  in  the 

Commonwealth,  as  surety  or  sureties,  are  holden  and  stand  firmly  bound  and 
obliged  unto  ,  Register  of  Deeds  for  the  County 

of  ,  in  the  full  and  just  sum  of  Dollars  to  be  paid  unto 

said  Register  and  his  successors  in  said  office,  to  which  pa>nnent,  well  and  truly 
to  be  made,  we  bind  ourselves,  our  heirs,  executors,  administrators,  successors 
and  assigns,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the  day  of  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 


2644 


LIENS    ON   BUILDINGS   AND   LAND. 


[Chap.  254. 


The  condition  of  this  obligation  is  such,  that  whereas  said  is  in- 

terested in  the  erection,  alteration,  repair  or  removal  of  a  building  on  a  certain  lot 
of  land  situated  within  the  Registry  District  in  the  Commonwealth, 

bounded  and  described  as  follows      .  and  desires  under  the  provisions  of 

chapter  two  hundred  and  fifty-four  of  the  General  Laws  and  acts  in  amendment 
thereof  and  in  addition  thereto  to  free  said  land  from  claims  for  personal  labor 
in  accordance  with  the  provisions  of  said  chapter  and  amendments  thereto; 

Now,  therefore,  if  the  above  bounden  shall  pay  or  cause  to  be 

paid  for  any  and  all  personal  labor  performed  in  the  erection,  alteration,  repair 
or  removal  of  said  building  on  said  land,  under  the  contract  stated  in  the  certifi- 
cate on  the  back  hereof,  irrespective  of  any  agreement  made  between  him  and 
the  owner  or  any  other  persons  now  interested  or  who  may  hereafter  be  interested 
therein,  then  the  above  written  obligation  shall  be  nuU  and  void;  otherwise  to 
remain  in  full  force  and  virtue. 

Signed,  sealed  and  delivered  in  presence  of 

(Seal) 
(Seal) 
(Seal) 

(Certificate  on  Back  of  Bond.) 

(Date) 

I,  ,  principal  in  the  within  bond,  hereby  certify  that  the  proposed 

work  on  the  lot  of  land  described  in  said  bond  is  the  erection  —  alteration  — - 
repair  —  removal  of  a  building,  that  a  fair  estimate  of  the  cost  of  the  labor  on 
said  building  will  not  exceed  dollars.     The  work  is  to  be  done  under 

a  contract  made  (date)  the  parties  thereto  being 

of  and  of  .    Said  work  is  to  be  completed 

on  or  before 

(Signed.) 

If  individual  sureties  are  given  on  said  bond,  the  sureties  sliall  be  not 
less  than  tliree  in  number,  each  of  whom  shall  have  owned  real  estate  for 
at  least  one  year  next  prior  to  the  date  of  the  bond,  of  a  value  not  less 
than  the  penal  sum  of  the  bond,  and  said  bond  shall  not  be  recorded  unless 
the  bond  and  sureties  shall  have  been  approved  by  a  justice  or  clerk  of  a 
court  having  jurisdiction  in  the  locality  where  the  land  lies,  after  an  ex- 
amination on  oath  of  all  the  sureties  by  said  justice  or  clerk. 

After  the  recording  of  said  bond  no  lien  shall  thereafter  attach  for 
personal  labor  performed  under  the  contract  in  respect  to  which  the 
bond  is  given. 

The  register  of  deeds  may  refuse  to  record  the  said  bond  if  it  be  de- 
fective in  form  or  substance,  but  no  party  to  any  such  bond  shall  be  dis- 
charged by  any  defect  therein  as  against  any  party  who  has  in  good  faith 
allowed  his  lien  to  be  dissolved  by  lapse  of  time  in  reliance  on  the  bond. 
The  bond  may  be  enforced  by  a  bill  in  equity  in  the  superior  court  brought 
by  any  party  in  interest.  The  petitioner  shall  bring  his  bill  in  his  own 
behalf  and  in  behalf  of  all  other  persons  in  interest  who  shall  become 
parties.  A  copy  of  the  subpoena  shall  be  filed  and  recorded  in  the  registry 
of  deeds. 


13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
2.3 
24 
25 
26 
27 
28 
29 
30 
31 


when  attach- 
ments do  and 
do  not  prevail. 
Attaching 
creditors,  how 
paid,  as 
between 
themselves. 
1819, 156, §  4. 
R.S.  117, 
§§  21-23.  25. 
G.S.  150, 
§§  28-30.  32. 
1801,131. 
P.  S.  191, 
§5  31-33,35. 


Section  13.  The  rights  of  an  attaching  creditor  shall  not  prevail 
as  against  a  lien  under  section  one,  nor  against  the  claim  of  a  lienor  where 
notice  or  notices  of  contract  have  been  filed  or  recorded  in  the  registry  of 
deeds  under  sections  two  and  four  prior  to  the  recording  of  the  attach- 
ment. An  attachment  recorded  prior  to  the  filing  or  recording  of  the 
notice  of  contract  shall  prevail  against  a  lien,  other  than  for  personal 
labor,  to  the  extent  of  the  ^'alue  of  the  buildings  and  land  as  they  were 
at  the  time  when  the  labor  was  commenced  or  the  material  furnished  for 
which  the  lien  is  claimed,  and  in  case  of  a  sale  under  section  eighteen  the 


Chap.  254.]  liens  on  buildings  and  l.and.  2645 

10  court  shall  determine,  in  the  manner  provided  in  section  sixteen,  what  j?'j''jg7 

11  proportion  of  the  proceeds  of  the  sale,  as  derived  from  the  value  of  the  §§25-27.' 

12  property  at  such  time,  shall  be  held  subject  to  the  attachment.    If  the  §§  io.  13.' 
1.3  attaching  creditor  recovers  judgment,  the  proceeds  so  held  subject  to  i9i8i257,     ' 

14  his  attaclmient,  or  as  much  thereof  as  may  be  necessary,  shall  be  applied  fg^'itt's^^^'  ^  *' 

15  upon  his  execution,  and  the  residue,  if  any,  shall  be  disposed  of  in  the  1920,2. 

16  same  manner  as  if  there  had  been  no  such  attachment.    If  the  interest 

17  of  the  owner  of  the  property  is  attached  after  the  filing  of  the  notice,  the 

18  proceeds  of  any  sale  of  the  property  under  said  section  eighteen,  after  dis- 

19  charging  all  prior  liens  and  claims,  shall  be  applied  to  satisfy  the  execu- 

20  tion  of  the  attaching  creditor,  provided  the  lienor  or  the  officer  making 

21  the  sale  has  actual  notice  of  the  attachment.    Several  attaching  credi- 

22  tors  as  between  themselves  shall  be  paid  according  to  the  order  of  their 

23  attachments. 

1  Section  14.     In  a  bill  in  equity  under  section  five,  the  court  may,  Dissolution 

2  in  its  discretion,  accept  a  bond,  with  sufficient  surety  or  sureties,  to  dis-  creditor.  ° 

3  solve  the  lien  of  any  creditor  or  all  liens,  as  to  the  whole  or  any  part  of  §§'1-3^"^' 

4  the  property,  or  any  interest  therein.    Such  bond  shall  be  filed  by  the  §f"'3^4. 

5  obligor  in  the  registry  of  deeds  within  ten  days  after  its  approval,  and  s";  42-4]' 

6  shall  not  dissolve  the  lien  unless  so  filed.    It  shall  be  recorded,  and  may  is9o,3S3. 

7  then  be  taken  from  the  registry  by  the  obligee. 

1895, 404.  1915. 292,  §§11,  13.  213  Mass,  463. 

R.  L.  197,  §§  28-30.  ISl  Mass.  181.  215  Mass.  582. 

1900,  223.  187  Mass.  300,  306.  228  Mass.  581,  598. 

1909',  237.  190  Mass.  439.  230  Mass.  259. 

1  Section  15.     If  it  appears  to  the  court  that  no  person  is  entitled  to  Dissolution  by 

2  a  lien,  or  that  every  lien  has  been  discharged  by  payment  thereof,  the  i9i5;'^292,''§"i2' 

3  court  shall  forthwith  cause  a  decree  to  be  entered  to  the  effect  that  the 

4  lien  is  dissolved,  and  a  certificate  to  that  effect  shall  be  sent  forthwith 

5  by  the  clerk  to  the  register  of  deeds.    Such  certificate  shall  be  filed  and 

6  recorded  in  the  manner  provided  in  sections  eight  and  nine. 

1  Section  16.     The  court  shall  determine  all  claims  in  a  summary  Trial. 

2  manner  according  to  equity  procedure  but  without  abridging  the  right  §§3,'?. 

3  of  jury  trial.  R.  s.  ii7,  §§  lo,  ii. 

G.  S.  150,  §§  17,  18.  R.  L.  197,  §  15.  179  Mass.  214. 

P.  S.  191,  |§  19,  21.  170  Mass.  1.  213  Mass.  456. 

1  Section  17.     A  claim  due  absolutely  and  without  condition,  although  claims 

2  not  payable  at  the  time  of  determination,  shall  be  allowed  with  a  rebate  is'i9,'i.5R,  §  4. 

3  of  interest  to  the  time  when  it  would  become  payable.    If  the  owner  has  j'j  li"!; 

4  failed  to  perform  his  part  of  the  contract  and  by  reason  of  such  failure  the  G-  %^^^' 

5  other  party  is,  without  his  own  default,  prevented  from  completely  per-  FjIg^lV 

6  forming  his  part  thereof,  he  shall  be  entitled  to  a  reasonable  compensa-  r.  l.'io?,  §  16. 

7  tion  for  as  much  as  he  has  performed,  in  proportion  to  the  price  stipulated  192  kass^  175! 
S  for  the  whole. 

1  Section  18.     If  a  lien  is  established  the  court  shall  order  a  sale  of  fgjg  ur,  §  3 

2  the  property  to  be  made  by  an  officer  qualified  to  serve  civil  process.  Is'ii"!' 

3  The  court  may  order  a  sale  of  a  part  of  the  property  sufficient  to  satisfy  P.-'lj^j?- 

4  the  claims  allowed,  if  such  part  can  be  set  off  from  the  residue  and  sold  p.  s.  I91,' 

5  without  damage  to  the  whole. 

R.  L.  197,  §  17.  215  Mass.  582.  230  Mass.  259. 


2646 


LIENS   ON   BUILDINGS  AND   hAND. 


[Chap.  254. 


mtise.fl:        Section  19.    The  officer  shall  give  notice  of  the  time  and  place  of     1 
g!  I  isa  i  23!  s^l^  3S  provided  for  sales  of  land  on  execution  or  as  ordered  by  the  court.     2 

p.  S.  191,  §  26.  R.  L.  197,  §  18. 


Redemption. 
1819,  156,  §  3 


Section  20.     An  interest  in  land  sold  under  this  chapter  may  be     1 
G.  1' ISO,' 1 24;  redeemed,  as  provided  for  sajes  of  land  on  execution.  2 


p.  S.  191,  §  27. 


R.  L.  197,  §  19. 


?8'i9?i56!T5  Section  21.  If  all  the  claims  against  the  property  covered  by  the 
f§  18^20.'  'i^i^  ^'sre  ascertained  at  the  time  of  ordering  the  sale  and  if  the  proceeds 
?§■  25^27'  ^^  ^^^^  ^^'^  ^^^  sufficient  therefor,  the  court  may  order  the  officer  to  dis- 

P;|i9i.  tribute  them,  after  deducting  all  lawful  charges  and  expenses,  to  and 

R.  L.  197,  §  20.  among  the  several  creditors  to  the  amount  of  their  respective  debts,  with 


116  Mass.  19(. 
141  Ma.«s.  280. 
175  Mass.  34. 
206  Mass.  585. 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 


interest,  or,  if  insufficient,  to  distribute  the  same  among  the  creditors  in 
proportion  to  the  amount  due  to  each.  If  all  the  claims  were  not  ascer- 
tained at  the  time  of  ordering  the  sale  or  other  sufficient  cause  is  shown, 
the  court  may  order  the  officer  to  bring  the  proceeds  of  the  sale  into  court 
to  be  disposed  of  according  to  its  decree.  If  the  whole  cannot  be  con- 
veniently distributed  at  one  time,  the  court  may  make  successive  orders  11 
of  distribution.  If  there  is  a  surplus  of  the  proceeds  of  the  sale  after  12 
making  all  payments  before  mentioned,  it  shall  be  paid  over  to  the  owner  13 
of  the  property ;  but/ before  it  is  so  paid  over,  it  may  be  attached  or  taken  14 
on  execution  in  like  manner  as  proceeds  from  a  sale  on  execution.  15 


R°s.'ii7,  §  32.  Section  22.  Costs  shall  be  in  the  discretion  of  the  court  and  shall  1 
p|' ill' 111'  be  paid  from  the  proceeds  of  the  sale  or  by  any  of  the  parties,  as  it  may  2 
R.  L.  197.  §  2i.  order.  3 


Bill  against 
heirs  or  assigns 
of  original 
owner. 

R.  S.  117,  §  27. 
G.  S.  150,  §  34. 
P.  S.  191,  §  37. 
R.  L.  197,  §  22. 
S  Cush.  119. 
181  Mass.  181. 
187  Mass.  513. 


Section  23.     If  the  person  for  whom  the  labor  has  been  performed  or  1 

furnished  or  the  material  has  been  furnished  dies  or  conveys  away  his  2 

estate  or  interest  before  the  filing  of  the  bill,  it  may  be  filed  and  prose-  3 

cuted  against  his  heirs  or  against  the  persons  holding  the  estate  or  in-  4 

terest  which  he  had  in  the  land  at  the  time  when  the  labor  or  material  was  5 

performed  or  furnished.    If  the  bill  was  filed  in  the  lifetime  of  such  per-  6 

son,  it  may  be  prosecuted  against  his  executor,  administrator,  heirs  or  7 

assigns  as  if  the  estate  or  interest  had  been  mortgaged  to  secure  the  debt.  8 


Section  24.     If  the  creditor  dies  without  having  filed  such  bill,  it     1 


Bill  by  execu- 
tor or  adminis- 

creduor'  ^1^7  bc  filed  and  prosecuted  by  his  executor  or  administrator;   or  if  he    2 

R.  s.  117,  §  28.  (jjgg  after  having  filed  it,  it  may  be  so  prosecuted.  3 

G.  S.  150,  §  35.  P.  S.  191,  §  38.  R.  L.  197,  §  23.  1915,  151,  §  7. 


Sale  of  estate 
less  than  a  fee 
simple. 

R.  S.  117,  §  26. 
G.  S.  150,  §  33. 
P.  S.  191,  §  3«. 
R.  L.  197,  §  32. 
13  Met.  149. 
103  Mass.  470. 
177  Mass.  506. 
214  Mass.  92. 
216  Mass.  81. 


general  provisions. 

Section  25.     If  the  person  for  whom  the  labor  has  been  performed  1 

or  with  whom  the  original  contract  has  been  entered  into  for  the  whole  2 

or  any  part  of  the  erection,  alteration,  repair  or  removal  of  a  building  or  3 

structure  upon  land,  or  for  furnishing  material  therefor,  has  an  estate  less  4 

than  a  fee  simple  in  the  land  or  if  the  property  is  subject  to  a  mortgage  5 

or  other  encumbrance,  the  lien  shall  bind  such  person's  whole  estate  and  6 

interest  in  the  property,  and  such  estate  or  interest  may  be  sold  and  the  7 

proceeds  applied  according  to  this  chapter.  8 


CH-^P.   255.]  MORTGAGES,   ETC.,   OF  PERSONAL  PROPERTY,    LIENS. 


2647 


1  Section  26.    This  chapter  shall  not  prevent  a  person  entitled  to  a  lien  Action  at  law 

2  under  it  from  maintaining  an  action  at  law  as  if  he  had  no  lien.  r°  s^inf  §  33 

G.  S.  150,  §  40.  P.  S.  191,  §  46.  R.  L.  197,  §  33.  200  Mass.  406. 


CHAPTER     255 


MORTGAGES,    CONDITIONAL    SALES    AND    PLEDGES    OF    PERSONAL 
PROPERTY,  AND  LIENS  THEREON. 


Sect. 

mortgages. 

1.  Mortgages  of  personal  property  to  be 

recorded. 

2.  Mortgage   of   vessel   or   goods   at   sea 

exempt. 

3.  Town  clerk  to  record  mortgages,  etc. 

4.  Redemption. 

5.  Notice  of  intention  to  foreclose. 

6.  Notice  of  foreclosure  to  be  recorded. 

7.  Foreclosure. 

PLEDGES. 

8.  Notice  of  intention  to  sell. 

9.  Sale. 

10.  Contract  rights  not  affected. 

CONDITIONAL    SALES. 

11.  Redemption  in  case  of  default. 

12.  Conditional  sales  of  furniture,  etc. 

13.  Foreclosure  of  right  of  redemption. 

LIEN3    ON    VESSELS. 

14.  Liens  on  vessels. 

15.  Lien    dissolved    unless    statement    is 

filed  in  clerk's  office. 

16.  Inaccuracies  not  fatal. 

17.  Liens  on  vessels  may  be  enforced  by 

petition,  etc. 
IS.  Form  of  petition. 
19.  Who  may  join  in  petition. 


Sect. 

20.  Distribution  of  proceeds  of  sale. 

21.  Payment  by  owner  of  vessel. 

22.  Other  liens  not  affected. 

OTHER    LIENS. 

23.  Lien   of   boarding   and   lodging   house 

keepers. 

24.  Lien  for  pasturing,  boarding  and  keep- 

ing domestic  animals. 
2.").  Lien  of  garage  keepers. 

26.  Enforcement. 

27.  Notice. 

28.  Notice  if  owner  is  unknown  or  out  of 

commonwealth. 

29.  Order  for  sale  and  distribution  of  pro- 

ceeds. 

30.  Appeal. 

31.  Preceding  sections  not  restrictive. 

32.  Dissolution     of     liens     on     personal 

property. 

33.  Same  subject. 

34.  Dissolution  of  certain  liens  of  bailees. 

35.  Priority   between  lien   of  vendee's   or 

lessee's  bailee  and  vendor  or  lessor. 

36.  Recovery  of  certain  personal  property 

held  under  a  lien. 

37.  Bond.     Hearing  on  sufficiency  of  sure- 

ties. 

38.  Trial    of    claim    under    which    lien    is 

claimed. 

39.  Costs. 


MORTGAGES. 

1  Section  1.    Mortgages  of  personal  property  shall,  within  fifteen  days 

2  from  the  date  written  in  the  mortgage,  be  recorded  on  the  records  of  the 

3  town  where  the  mortgagor  resides  when  the  mortgage  is  made,  and  on 

4  the  records  of  the  town  where  he  then  principally  transacts  his  busi- 

5  ness.    If  the  mortgagor  resides  out  of  the  commonwealth,  and  the  prop- 

6  erty  mortgaged  is  within  the  commonwealth  when  the  mortgage  is  made, 

7  the  mortgage  shall  be  recorded  on  the  records  of  the  town  where  the 

8  property  then  is.    If  a  record  in  two  different  places  is  required  and 

9  the  mortgage  is  recorded  in  one  within  said  fifteen  days,  it  may  be  re- 

10  corded  in  the  other  within  ten  days  after  the  date  of  the  first  record. 

11  The  mortgage  shall  not  be  ^•alid  against  a  person  other  than  the  parties 

12  thereto  until  so  recorded;  and  a  record  made  subsequently  to  the  time 

13  limited  shall  be  void.     This  section  shall  apply  to  bills  of  sale  given  for 


Mortgages  of 
personal 
property  to  be 
recorded. 
1832,  157,  §  1. 
R.  S.  74,  §  5. 
1843,  72,  §  2. 
G.S.  151,  §  1. 

1874,  111,  §  1, 

1875.  14. 
F.  S.  192, 
§§  1,2. 
1SS3,  73. 

R.  L.  198,  §  1. 
1913,656. 
1915.  226,  §  1. 
2  Pick.  607. 
1  Met.  436. 
8  Met.  19. 
10  Met.  481. 
13  Met.  200, 
304,  358. 
6  Cush.  298. 


2648 


MORTGAGES   OF  PERSONAL  PROPERTY. 


[CH.A.P. 


iOO. 


12  Cush.  109. 

6  Gray,  100. 

7  Gray,  239. 
12  Gray,  154. 
16  Gray,  379. 

1  Allen,  373. 

2  Allen,  264. 


security.     If  the  condition  for  redemption  of  the  property  included  in  such  14 

bill  of  sale  is  in  writing,  it  shall  be  recorded  with  and  as  a  part  of  the  bill  1,5 

of  sale;  if  the  condition  for  redemption  is  oral,  a  wTitten  statement  of  such  16 

condition  signed  by  the  mortgagee  shall  be  so  recorded.  17 


11  Allen,  231. 
97  Mass.  452. 
99  Mass.  397. 

103  Mass.  4S2. 

104  Mass.  249. 
121  Mass.  435. 
134  Mass.  48. 


137  Mass.  460. 
142  Mass.  379. 
144  Mass.  207. 
151  Mass.  300. 
173  Mass.  88. 
179  Mass.  120. 
181  Mass.  73. 


183  Mass.  123. 
1S4  Mass.  361. 
190  Mass.  219. 
194  Mass.  493. 
203  Mass.  46. 
213  Ma.ss.  210. 
215  Mass.  13,  156. 


222  Mass.  587. 

224  Mass.  448. 

225  Mass.  491. 
232  Mass.  124. 
236  Mass.  435. 
236  U.  S.  97. 


Mortgage  of 
vessel  or  goods 
at  sea  exempt. 
1832,  157,  §  1. 
R.  S.  74,  §  6. 
1851,  57. 
G.  S.  151,  §  2. 


Town  clerk 

to  record 

mortgages,  etc. 

1832,  157,  §  2. 

R.  S.  74.  S  7. 

G.  S.  151,  §  3. 

1865,  43, 

5§2,3. 

P.  S.  183,  §  39; 

192,  §  4. 

R.  L.  198,  §  3. 

191.3,  650. 

1915,  226, 

5§  1.2. 

105  Mass.  442. 

Redemption. 
R.  S.  107, 
§§40,41. 
G.  S.  161, 
§§4,5. 
P.  S.  192, 
§§5,6. 

R.  L.  198,  §  4. 
142  Mass.  519. 
152  Mass.  20. 
190  Mass.  326. 
231  Mass.  391. 


Section  2.    The  preceding  section  shall  not  apply  to  a  mortgage  of,  1 

or  other  instrument  relative  to,  a  ship  or  vessel  of  the  United  States,  or  2 

to  goods  at  sea  or  abroad  if  the  mortgagee  takes  possession  of  such  goods  3 

as  soon  as  may  be  after  their  arrival  in  the  commonwealth.  4 

55  Me.  76. 


P.  S.  192,  i 
R.  L.  198, 


3. 

I  2. 


5  Allen,  280. 
225  Mass.  491. 


Section  3.  Town  clerks  shall,  upon  payment  of  their  fees,  record  in 
books  kept  for  the  purpose  mortgages  of  personal  property,  bills  of  sale 
given  for  security  and  assignments  of  future  earnings  delivered  to  them, 
noting  in  such  books  and  on  each  such  instrument  the  time  when  it  is 
received;  and  it  shall  be  held  to  be  recorded  at  the  time  when  it  is  left 
for  that  purpose  in  the  clerk's  office.  The  fees  for  recording  and  for  all 
other  services  relative  thereto  shall  be  the  same  as  are  allowed  to  registers 
of  deeds  for  like  services.  i4i  Mass.  ii7. 


Section  4.     The  mortgagor  or  a  person  lawfully  claiming  under  him  1 

may,  after  breach  of  condition,  redeem  the  mortgaged  property  at  any  2 

time  before  it  is  sold  in  pursuance  of  the  contract  between  the  parties,  3 

or  before  the  right  of  redemption  is  foreclosed.    The  person  entitled  to  4 

redeem  shall  pay  or  tender  to  the  mortgagee  or  to  the  person  claiming  5 

under  him  the  amount  due  on  the  mortgage,  or  shall  perform  or  offer  6 

performance  of  the  condition,  and  shall  pay  all  reasonable  and  lawful  7 

charges  and  expenses  incurred  in  the  care  and  custody  of  the  property  8 

or  otherwise  arising  from  the  mortgage;   and  if  upon  such  payment  9 

or  performance,  or  upon  tender  thereof,  the  property  is  not  forthwith  10 

restored,  the  person  entitled  to  redeem  may  recover  it  in  replevin,  or  11 

may  recover  damages  for  its  conversion.  12 


Notice  of 
intention  to 
foreclose. 
1843,  72.  §  1. 
1856,  174. 
G.  S.  151,  §  6. 
P.  S.  192,  §  7. 
R.  L.  198,  §  5. 
10  Cush.  119. 
2  Gray,  203. 
190  Mass.  326. 
231  Mass.  357. 


Notice  of 
foreclosure  to 
be  recorded. 
1858,  3. 
G.  S.  151,  §  7. 
P.  S.  192.  §  8. 
R.  L.  198,  §  G. 


Section  5.    The  mortgagee  or  his  assigns  may,  after  breach  of  con-  1 

dition  and  subject  to  section  ninety-three  of  chapter  one  hundred  and  2 

forty,  give  to  the  mortgagor,  or  to  the  person  in  possession  of  the  prop-  3 

erty  claiming  the  same,  written  notice  of  his  intention  to  foreclose  the  4 

mortgage  for  breach  of  the  condition  thereof,  which  shall  be  served  by  5 

leaving  a  copy  with  the  mortgagor  or  person  in  possession  of  the  property  6 

claiming  the  same,  or  by  publishing  it  at  least  once  in  each  of  three  sue-  7 

cessive  weeks  in  one  of  the  principal  newspapers,  if  any,  published  in  the  8 

town  where  the  mortgage  is  properly  recorded  or  where  the  property  is  9 

situated;  otherwise,  in  one  of  the  principal  newspapers  published  in  the  10 

county.  1 1 

Section  6.     The  notice,  with  an  affidavit  of  the  service  thereof,  shall  1 

be  recorded  wherever  the  mortgage  is  recorded,  and  such  notice  and  2 

affidavit,  if  so  recorded,  or  a  copy  of  the  record  thereof,  shall  be  evidence  3 

of  the  giving  of  the  notice.  4 

97  Mass.  489.  122  Mass.  129.  190  Mass.  325.  211  Mass.  320. 


CH-^P.   255.]      PLEDGES,   CO^■DITIOXAL  SALES   OF  PERSONAL  PROPERTV'.  2649 

1  Section  7.     If  the  condition  is  not  performed  or  tender  of  perform-  Foreclosure. 

2  ance  made  within  si.xty  days  after  such  notice  is  so  recorded,  the  right  to  a^l.'ifi.Vs. 

3  redeem  shall  be  foreclosed.  p.  s.  192,  §  9. 

R.  L.  198,  §  7.  122  JIass.  129.  190  Mass.  326.  211  Mass.  320. 

PLEDGES. 

1  Section  8.     The  holder  of  personal  property  in  pledge  for  the  pay-  Notice  of  in- 

2  ment  of  money  or  for  the  performance  of  any  other  thing  may,  after  g.°s.°i5i?|9.' 

3  failm-e  to  pay  or  perform,  give  written  notice  to  the  pledgor  that  he  R.L.'mVs?' 

4  intends  to  enforce  paAinent  or  performance  by  a  sale  of  the  pledge,  and  iTj^Mass^soo 

5  such  notice  shall  be  served  and,  with  an  affidavit  of  the  service,  be  re- 

6  corded  in  the  office  of  the  clerk  of  the  town  where  the  pledgee  resides, 

7  in  the  manner  and  with  the  effect  provided  in  sections  five  and  six  for 

8  notices  of  foreclosure. 

1  Section  9.     If  the  money  to  be  paid  or  thing  to  be  done  is  not  paid  q^'I;  jjj  j  jq 

2  or  performed,  or  tender  thereof  made,  within  si.xty  days  after  such  notice  ^  |;  ^^^^  ^,  y- 

3  has  been  so  recorded,  the  pledgee  may  sell  the  pledge  by  public  auction  i75  iiass'.  320. 

4  and  apply  the  proceeds  to  the  satisfaction  of  the  debt  or  demand  and  of 

5  the  expenses  of  the  notice  and  sale.    Any  surplus  shall  be  paid  on  demand 

6  to  the  party  entitled  thereto. 

1  Section  10.     The  two  preceding   sections   shall   not  authorize  the  Contract  rights 

2  pledgee  to  dispose  of  the  pledge  contrary  to  the  terms  of  the  contract  G°s^i5"i,l'ii. 

3  under  which  it  is  held,  nor  shall  they  limit  his  right  to  dispose  of  it  in  R.i/igs.l  10. 

4  any  other  manner  allowed  by  the  contract  or  by  law. 

162  Mass.  527.  226  Mass.  30. 

CONDITIONAL  SALES. 

1  Section  11.    Except  as  other\\'ise  pro\aded  in  chapter  one  hundred  Redemption 

2  and  fifty-nine,  if  a  contract  for  the  sale  of  personal  property  is  made  default. 

3  on  condition  that  the  title  thereto  shall  not  pass  until  the  purchase  p':s.'i92,'|  is. 

4  money  has  been  fully  paid  and  the  vendor  upon  default  takes  from  the  fa/'jial'.  li i.' 

5  vendee  possession  of  the  property,  the  vendee  may,  within  fifteen  days 

6  after  such  taking,  redeem  the  property  so  taken  by  paying  to  the  vendor 

7  the  full  amount  then  unpaid,  with  interest  and  all  lawful  charges  and 

8  expenses  due  to  the  vendor. 

1  Section  12.     Such  contracts  for  the  sale  of  furniture  or  other  house-  Conditional 

2  hold  effects  in  the  fprm  of  a  lease  or  otherwise  shall  be  in  MTiting  and  a  tSrnlture.  etc. 

3  copy  thereof  shall  be  furnished  to  the  vendee  by  the  vendor  at  the  time  r**l;  igg]  1 12. 

4  of  such  sale;  and  all  payments  made  by  or  in  behalf  of  the  vendee  and  JgS  MaS:  31°' 

5  all  charges  in  the  nature  of  interest  or  otherwise,  as  they  accrue,  shall,  if 

6  the  vendee  so  requests,  be  endorsed  by  the  vendor  or  his  agent  upon  such 

7  copy.    A  failure  of  the  vendor  through  negligence  to  comply  with  any 

8  provision  of  this  section  shall  suspend  his  rights  under  the  contract  while 

9  the  failure  continues.    His  refusal  or  wilful  or  fraudulent  failure  so  to 
10  comply  shall  be  a  waiver  by  him  of  the  condition  of  the  sale. 

1  Section  13.    Thirty  days  at  least  before  taking  possession  of  said  ItlfglfoP 

2  furniture  or  effects  for  default  of  the  vendee,  the  vendor  shall  demand  in  J^s'i'^s is"*' 2 

3  writing  of  the  vendee  or  other  person  in  charge  of  said  furniture  or  eft'ects  is92'.  411! 

.  .  1898  545 

4  the  balance  then  due,  and  shall  furnish  to  said  vendee  or  other  person  an  r.  l!  19s',  §  13. 


2650  LIENS   ON   PERSONAL   PROPERTY.  [Ch.1P.   255. 

182  Mass.  31.     itemized  statement  of  the  account  showins;  the  amount  due  thereon.     5 

lob  Mass.  51 -Ti.-!  ii*p 

187  Mass.  486.    If  gaid  vendcc  or  other  person  can  by  the  exercise  of  reasonable  care  and     6 

218  Mass  112 

(HHgence  be  found  by  the  vendor,  the  fifteen  days  during  which  his  right  7 

of  redemption  exists  under  section  eleven  shall  not  begin  to  run  until  8 

said  demand  has  been  made,  said  statement  furnished  and  said  thirty  9 

days  have  expired.    If  seventy-five  per  cent  or  more  of  the  contract  price  10 

has  been  paid  by  a  vendee  whose  right  of  redemption  has  expired,  the  11 

furniture  or  effects  shall,  if  the  vendee  or  his  legal  representative  in  writ-  12 

ing  so  requests  the  vendor,  be  sold  by  public  auction  after  due  advertise-  1.3 

ment,  which  shall  be  published  at  least  three  days  prior  to  the  sale  in  one  14 

of  the  principal  newspapers,  if  any,  published  in  the  town,  otherwise  in  15 

one  of  the  principal  newspapers  published  in  the  county,  where  the  fur-  16 

niture  or  effects  are  situated.     If  the  vendor  refuses  or  neglects  to  make  17 

the  sale  as  provided  herein,  the  right  of  redemption  shall  not  be  fore-  18 

closed.     If  a  balance  of  the  proceeds  of  the  sale  remains  after  deducting  19 

the  actual  expenses  of  the  sale  by  auction  and  paying  from  said  proceeds  20 

to  the  vendor  the  balance  of  the  contract  price  due  him,  it  shall  be  paid  21 

to  the  vendee  or  his  legal  representative.  22 

LIENS   ON   VESSELS. 

vesslis°°  Section  14.     If  by  virtue  of  a  contract,  ex-press  or  implied,  with  the  1 

1855'  23i'  1 1'  owners  of  a  vessel  or  with  the  agents,  contractors  or  sub-contractors  of  2 

p'lili'lif  ^^"^^  owners,  or  with  any  of  them,  or  with  a  person  Mho  has  been  em-  3 

R.  L.  198.  §  14.  ployed  to  construct,  repair  or  launch  a  vessel  or  to  assist  therein,  money  4 

134.  ™^'  '  '  is  due  for  labor  performed,  materials  used  or  labor  and  materials  furnished  5 

l^Uen'/wb*'  in  the  construction,  launching  or  repairs  of,  or  in  the  construction  of  the  6 

ii^Uenfis'?.  launching  ways  for,  or  for  pro^■isions,  stores  or  other  articles  furnished  7 

103  Mass'  227'  ^^r  or  ou  accoimt  of  such  vessel  in  the  commonwealth,  the  person  to  whom  8 

119  Mass'  179'  ^^'^^  moucy  Is  due  shall  have  a  lien  upon  the  vessel,  her  tackle,  apparel  9 

134  Mass!  186!  and  fiu"niture  to  secure  the  pajTnent  of  such  debt,  and  such  lien  shall  be  10 

157  Mass!  625!  preferred  to  all  others  on  such  vessel,  except  that  for  mariners'  wages,  and  11 

167  u.T'eoe.  shall  continue  until  the  debt  is  satisfied.                 217  Fed.  Rep.  617.  12 

220  Fed.  Rep.  281.  230  Fed.  Rep.  1017.  See  U.  S.  Comp.  Sts.  §§7783-7787. 

unlesfltat™''  Section  15.     Such  lien  shall  be  dissolved  unless  the  person  claiming  1 

■nent  is  Hed  in  [^  within  thirty  days  after  the  vessel  departs  from  the  port  at  which  she  2 

1848, 290.  §  2.  was  when  the  debt  was  contracted,  files  in  the  office  of  the  clerk  of  the  3 

G.  s.' 151,' I  Ts.  town  where  the  vessel  was  at  such  time,  a  statement,  subscribed  and  4 

i89'"6,404'.   ^  ■  sworn  to  by  him  or  by  a  person  in  his  behalf,  giving  a  true  account  of  the  5 

?5  G'ray,*2l4^^'  demand  claimed  to  be  due  to  him,  with  all  just  credits,  the  name  of  the  6 

Is^i'ias's^lijo  person  with  whom  the  contract  was  made,  the  name  of  the  owner  of  the  7 

191  itiasi  133  '^'essel,  if  known,  and  the  name  of  the  vessel  or  a  description  thereof  suffi-  8 

167 U.S. 606.'  cient  for  identification.    The  statement  shall  be  recorded  by  such  clerk  9 

617.            '  in  a  book  kept  by  him  for  that  purpose,  and  the  fees  therefor  shall  be  the  10 

220  Fed.  Rep.  t  A'  4.  11 

281.  same  as  tor  recording  mortgages,  11 

230  Fed.  Rep.  1017.  SeeU.  S.  Comp.  Sts.  5§7783-77S7. 

notTa'tar'"^  SECTION  16.     A  place  in  which  the  vessel  is  wholly  or  partly  con-  1 

p- 1;  jIg,'  1 16.'  structed  shall  be  held  to  be  the  port  where  she  was  when  the  debt  was  2 

n'g^iviass'  179^'  contracted.    The  lien  shall  not  be  affected  by  any  inacciu-acy  in  the  de-  3 

^fl  n  T'eor"'    scription  of  the  vessel,  if  she  can  be  recognized  thereby,  nor  in  stating  4 

217  Fed.Rep!    the  amouut  due  for  labor  or  materials,  unless  it  is  found  that  the  person  5 

220  Fed.  Rep.    filing  the  Statement  has  knowingly  claimed  more  than  is  due.  6 

~^^-  230  Fed.  Rep.  1017.  SeeU.  S.  Comp.  Sts.  §§  7783-7787. 


Chap.  255.]  liens  on  personal  property.  2651 

1  Section  17.     A  person  having  such  lien,  unless  the  contract  described  i-'™',  °°     , 

.  •         p  •  ••*"  II  p  t>     1       f         vessels  may  be 

2  in  section  tourteen  is  a  maritime  contract  and  the  eniorcement  or  the  hen  enforced  by 

3  is  within  the  exclusive  jurisdiction  of  the  courts  of  the  United  States,  may  ilsk' 231!  §  3. 

4  enforce  the  lien  by  a  bill  in  equity  in  the  superior  court  for  the  county  §§  15, 17.' 

5  where  the  vessel  was  at  the  time  when  the  debt  was  contracted  or  fjty'lo. 

G  where  she  is  at  the  time  of  filing  the  bill.     The  subsequent  proceedings  fg^-  J^|;  ^  '^• 

7  shall,  except  as  hereinafter  provided,  be  as  prescribed  in  chapter  two  hun-  ||j-}.'  ig^,.     ^ 

8  dred  and  fifty-four  so  far  as  applicable.     Upon  the  filing  of  the  petition,  SAiien, 207. 

9  a  process  of  attachment  against  such  vessel,  her  tackle,  apparel  and  fur-  109  Mass;576; 

10  niture,  shall  issue,  and  the  attachment  may  be  dissolved  as  in  a  civil  ac-  235  Mall.  471'. 

11  tion,  but  such  dissolution  shall  not  dissolve  the  lien. 

167U.  S.  606.  220  Fed.  Rep.  2S1.  See  U.  S.  Comp.  Sts.  §§  77S3-7787. 

217  Fed.  Rep.  617.  230  Fed.  Rep.  1017. 

1  Section  18.     The  bill  shall  contain  a  brief  statement  of  the  labor,  Form  of 

2  materials  or  work  done  or  furnished,  or  of  the  stores,  provisions  or  other  cra°M,  §  le. 

3  articles  furnished,  and  of  the  amount  due  therefor,  with  a  description  of  r.  L^fgs.Vfs 

4  the  vessel  which  is  subject  to  the  lien,  and  all  other  material  facts  and  ^^^  Fed  Re^' 

5  circumstances,  and  shall  pray  that  the  vessel  may  be  sold  and  the  proceeds  6i7. 

6  of  the  sale  applied  to  the  discharge  of  the  debt.  2si. 

230  Fed.  Rep.  1017.  See  U.  S.  Comp.  Sts.  §§  7783-7787. 

1  Section  19.     Two  or  more  persons  having  such  liens  upon  the  same  who  may  join 

2  vessel  may  join  in  one  bill  in  equity  to  enforce  them,  and  the  proceed-  is55,'23i?§  t. 

3  ings  shall  be  the  same  and  the  respondent  may  defend  as  to  each  petitioner  p;  |;  m- 1 1^- 

4  as  if  each  had  filed  a  separate  bill. 

R.  L.  198.  5  19.  217  Fed.  Rep.  617.  230  Fed.  Rep.  1017. 

167  U.  S.  606.  220  Fed.  Rep.  2S1.  See  U.  S.  Comp.  Sts.  §§7783-7787. 

1  Section  20.     If  money  is  due  to  more  than  one  person  holding  such  Distribution 

2  lien  and  all  parties  interested  ha^•e  been  cited  to  appear  and  answer,  the  "f  L'^ie'i^^''^ 

3  claims  of  all  shall  be  marshalled,  and  the  court  shall  make  such  order  or  }?'°t  ^?}'  I  ^ 

4  decree  as  may  be  necessary  to  prevent  the  enforcement  of  a  double  hen  ps-  ^^<?c  V'' 

•    5  for  the  same  labor,  materials,  stores,  provisions  or  other  articles,  and  to  i67  u.  s.  606.  ' 

6  secure  the  rights  of  each.    The  proceeds  from  the  sale  of  the  vessel,  after  617.  "  '    ^^" 

7  deducting  all  costs  and  expenses,  shall  be  distributed  among  the  se^-eral  Isi.  "  '    ^"^ 

8  claimants  according  to  the  amount  of  their  respective  debts,  except  that,  foi7^'^'''  ^^"^ 

9  if  such  proceeds  are  insufficient  to  satisfv  the  liens  of  all,  those  who  have  &"''  ^- 1; 

,.  n         ,  .  '  .  .  .  Comp.  bts. 

10  hens  for  labor  shall  receive  a  percentage  on  their  respective  claims  one  §§7783-77S7. 

1 1  third  greater,  as  near  as  may  be,  than  those  who  ha^e  liens  for  materials, 

12  stores  or  other  articles. 

1  Section  21.     If  a  contractor  or  sub-contractor  unreasonably  neglects  Payment  by 

2  or  refuses  to  pay  for  labor  procured  by  him  to  be  performed  in  construct-  °.^ssef.  °' 

3  ing,  repairing  or  launching  a  vessel  upon  which  a  lien  exists  therefor  and  p*|^'i9*2^§  22, 

4  the  owner  or  other  person  who  made  the  agreement  with  such  contractor  J^;7'tr's*'606^'' 

5  or  sub-contractor  pays  the  debt  secured  by  the  lien,  he  shall  have  the  217  Fed.  Rep. 

6  same  claim  against  such  contractor  or  sub-contractor  as  if  the  lien  had  220'Fed.  Rep. 

7  been  enforced  by  judgment. 

230  Fed.  Rep.  1017.  See  U.  S.  Comp.  Sts.  §§  7783-7787. 

1  Section  22.    The  eight  preceding  sections  shall  not  affect  any  lien  other  liens  not 

2  on  foreign  vessels  which  exists  independent  of  statute.  affected. 

1855,  231,  §6.  R.  L.  198,  §  22.  220  Fed.  Rep.  281. 

G.  S.  151.  §  20.  167  U.  S.  606.  230  Fed.  Rep.  1017. 

P.  S.  192,  §  23.  217  Fed.  Rep.  617.  See U. S. Comp.  Sts.  §§7783-7787. 


2652 


LIENS   ON    PERSONAL   PROPERTY. 


[Chap.  255. 


Lien  of  board- 
ing and  lodg- 
ing house 
keepers. 
1859.  229. 
G.  S.  151,  §  29. 
P.  S.  192.  §  31. 
1897,  292. 
R.  L.  198,  §  28. 


OTHER   LIENS. 

Section  2.3.  Boarding  house  or  lodging  house  keepers  shall  ha-\^e  a 
lien  on  the  baggage  and  effects  brought  to  their  houses  and  belonging  to 
their  guests,  boarders  or  lodgers,  except  mariners,  for  all  proper  charges 
due  for  fare  and  board  or  lodging,  which  may  be  enforced  as  provided 
in  sections  twenty-six  to  thirty,  inclusive. 

10  Allen,  360.  110  Mass.  15S.  115  Mass.  70, 


Lien  for  pas- 
turing, board- 
ing and  keep- 
ing domestic 
animals. 

1877,  96. 

1878,  208. 


Section  24.  Persons  having  proper  charges  due  them  for  pasturing, 
boarding  or  keeping  horses  or  other  domestic  animals  which  are  brought 
to  their  premises  or  placed  in  their  care  by  or  with  the  consent  of  the 
owners  thereof  shall  have  a  lien  on  such  animals  for  such  charges. 


p.  S.  192,  §§  32,  33. 
R.  L.  198,  §  29. 
136  Mass.  543. 


139  Mass.  126. 

140  Mass.  76. 


155  Mass.  481. 
161  Mass.  512. 


Lien  of  garage 
keepers. 
1913,  300,  §  1. 
223  Mass.  332. 


Section  25.     Persons   maintaining   public   garages   for   the   storage  1 

and  care  of  motor  vehicles  brought  to  their  premises  or  placed  in  their  2 

care  by  or  with  the  consent  of  the  owners  thereof  shall  have  a  lien  upon  3 

such  motor  vehicles  for  proper  charges  due  them  for  the  storage  and  care  4 

of  the  same.  5 


Enforeement. 
G.  S.  151,  §  21. 
P.  S.  192,  f  24. 
18S8.  40. 
R.  L.  198, 
§5  23,  29. 
1013,300,  §  2. 
1917,326. 
14  Allen.  139. 
154  Mass.  105. 


Section  26.  A  person  who  has  a  lien,  which  is  not  described  in  sec-  1 
tions  fourteen  to  twenty-two,  inclusive,  or  in  chapter  two  hundred  and  2 
fifty-four,  for  money  due  to  him  on  account  of  work  and  labor,  storage,  3 
care  and  diligence,  or  money  expended  on  or  about  personal  property  4 
under  a  contract  express  or  implied,  if  such  money  is  not  paid,  in  the  5 
case  of  a  lien  described  in  section  twenty-four  or  twenty-five  within  ten  6 
days,  or  in  other  cases  within  sixty  days,  after  a  demand  in  writing  7 
delivered  to  the  debtor  or  left  at  his  usual  place  of  abode,  if  within  8 
the  commonwealth,  or  mailed  postpaid  to  him  at  his  usual  place  of  abode  9 
without  the  commonwealth,  may  file  a  petition  in  the  superior  court  or  10 
in  a  district  court  within  the  jurisdiction  of  which  the  petitioner  resides  11 
or  has  his  usual  place  of  business  for  an  order  for  the  sale  of  the  prop-  12 
erty  in  satisfaction  of  the  debt.  13 


§§24,29. 
1917,  326. 
170  Mass.  210. 


G°s.''ioi,  §  22.  Section  27.  The  court  shall  thereupon  issue  a  notice  to  the  owner 
R  L  \^9s  ^  ^^'  °^  ^^^^  property  to  appear  at  a  time  and  place  designated,  which  shall  be 
served  by  an  officer  qualified  to  serve  civil  process  or  by  a  disinterested 
person  by  delivering  to  the  owner  or  by  leaving  at  his  usual  place  of 
abode,  if  within  the  commonwealth,  a  copy  thereof  seven  days  before 
the  hearing  in  proceedings  to  enforce  liens  described  in  section  twenty- 
four  or  twenty-five  or  fourteen  days  before  the  hearing  in  other  cases. 
The  return,  if  not  made  by  an  officer,  shall  be  on  oath. 


1^  unknown^o""^  SECTION  28.  If  the  owucr  or  his  usual  place  of  abode  is  unknown,  the 
monwea°th'  petition  may  be  filed  sbcty  days  after  the  money  becomes  due,  and  the 
?§■  23^24'  notice  describing  the  property  may  be  issued  "to  the  unknown  owner", 

^i^^  i^i;  §  26.   or  to  the  owner,  naming  him,  "whose  usual  place  of  abode  is  unknown". 
R.  l!  198,  §  25.  If  the  owner  resides  out  of  the  commonwealth  or  he  or  his  usual  place 
of  abode  is  unknown,  the  notice  may  be  gi\en  by  publication,  as  pro- 
vided in  section  five. 


CtL^P.    255.]  LIENS   ON    PERSONAL   PROPERTY.  2653 

1  Section  29.     If,  upon  default  or  a  hearing,  it  is  found  that  a  lien  Order  for  sale 

2  exists  upon  the  property  and  that  the  property  ought  to  be  sold  for  the  tion  o'/pr'o-"" 

3  satisfaction  of  the  debt,  the  court  may  make  an  order  for  such  sale,  de-  G.'a'isi, 

4  termine  and  record  the  amount  then  due  and  award  costs  to  the  prevailing  P  |^i||'  ^^' 

5  party.    Any  proceeds  of  the  sale  remaining  after  satisfying  the  debt,  costs  |§  '^•?^^  ^P^e 

6  and  charges,  shall  be  paid  to  the  owner  upon  demand.  i9i7,"  32b.' 

1  Section  30.    A  party  may  appeal  from  the  final  order  of  a  district  Appeal. 

2  court,  as  in  other  civil  actions,  to  the  superior  court,  which  shall  make  an  p.'  s.'  192.'  §  29.' 

3  appropriate  order.    If  the  respondent  appeals,  he  shall  gi\'e  bond  for  the  igi?,'  326.' 

4  prosecution  of  his  appeal  and  for  the  payment,  if  judgment  is  rendered 

5  against  him,  of  any  balance  of  the  debt,  with  costs,  which  may  remain 

6  unsatisfied  after  a  sale  of  the  property. 

1  Section  31.     The  eight  preceding  sections  shall  not  restrict  the  right  Preceding 

2  of  a  person  who  has  a  lien  upon  property  to  hold  or  dispose  of  it  in  any  restrictive. 

3  other  lawful  manner.  p.  s.  192,  §  34.  r.  l.  198,  §30.  .  .  o  ,      . 

1  Section  32.     Liens   claimed    by    public   warehousemen   and   others  Dissolution  of 

2  upon  personal  property  for  storage  thereof,  by  innkeepers,  boarding  house  s'onai°property. 

3  keepers  and  lodging  house  keepers  upon  the  baggage  and  effects  of  guests,  \111\  '^\  ^  ^' 

4  boarders  or  lodgers,  by  stable  keepers  and  others  for  the  boarding,  keeping 

5  or  pasturage  of  horses  or  other  domestic  animals,  by  persons  maintaining 

6  public  garages  for  the  storage  and  care  of  motor  vehicles,  by  agents,  con- 

7  signees  and  factors  for  advances,  disbursements  or  expenses  upon  mer- 

8  chandise,  by  attorneys  at  law  upon  books,  papers,  documents  or  other 

9  personal  property,  and  by  any  other  persons  for  money  due  to  them  on 

10  account  of  work  and  labor,  care  and  diligence,  or  money  expended  on  or 

11  about  personal  property  under  a  contract  express  or  implied,  may,  ex- 

12  cept  as  otherwise  provided  in  section  thirty-four,  be  dissolved  as  pro- 

13  vided  in  the  following  section. 

1  Section  33.     A  person  who  owns  or  has  an  interest  in  any  personal  i9^7^|9o,^^§°V. 

2  property  upon  which  such  a  lien  has  been  claimed  may,  at  any  time  after 

3  a  petition  is  brought  for  its  enforcement  and  before  the  property  is  law- 

4  fully  sold  to  satisfy  said  lien,  dissolve  the  lien  upon  his  interest  in  the 

5  whole  or  any  part  of  said  property  by  giving  bond  to  the  person  claim- 

6  ing  the  lien,  ^\■ith  sufficient  sureties,  who  shall  be  approved  in  writing 

7  by  the  claimant  or  by  his  attorney,  or  by  a  justice  of  a  district  court  or 

8  master  in  chancery,  conditioned  to  pay  to  such  person  within  thirty  days 

9  after  the  final  judgment  or  order  of  sale  of  said  property  or  the  interest 

10  therein  or  part  thereof  for  which  said  bond  may  be  given,  an  amount 

11  fixed  as  the  value  of  said  interest  or  such  part  thereof  as  may  be  necessary 

12  to  satisfy  the  amount  for  which  said  interest  or  part  thereof  may  be  sub- 

13  ject  to  said  lien.    The  property  upon  which  the  lien  is  to  be  dissolved  shall 

14  be  described  in  the  bond.    If  the  parties  do  not  agree  as  to  the  value  of 

15  the  property  or  of  the  part  to  be  released  from  said  lien,  the  value  may 

16  be  determined  in  accortlance  with  the  provisions  of  sections  one  hundred 

17  and  twenty-five  and  one  hundred  and  twenty-six  of  chapter  two  hun- 

18  dred  and  twenty-three.     If  the  said  property,  or  the  part  to  be  released 

19  from  said  lien,  consists  of  books,  papers,  documents  or  other  similar  prop- 

20  erty  and  the  parties  do  not  agree  upon  the  amount  for  which  said  bond 

21  shall  be  given,  it  may  be  fixed  in  like  nuinncr  at  such  amount  as  may 


2654  LIENS    ON    PERSONAL   PROPERTY.  [ChAP.    255. 

be  reasonable,  giving  due  consideration  to  the  amount  for  which  said  22 

lien  is  claimed,  and  upon  the  delivery  of  the  bond  in  accordance  with  the  23 

provisions  hereof  the  lien  upon  the  propertj^  described  therein  shall  be  24 

dissolved.     The  person  claiming  a  lien  upon  said  personal  property  shall,  25 

upon  demand  therefor,  furnish  the  person  owning  or  having  an  interest  in  26 

said  property  with  a  statement  of  the  amount  and  reasons,  or  other  27 

considerations,  for  which  the  lien  is  claimed.  28 

certa°i'nUens°^        Sectiox  34.     The  licn  of  a  bailee  of  personal  property  exceeding  1 

of  bailees.         twcuty  dollars  in  value  to  secure  a  claim  for  which  he  has  a  lien,  shall,  2 

l§5.'6.   '         if  the  amount  of  such  claim  has  been  agreed  upon  or  otherwise  estab-  3 

lishcd,  terminate  upon  tender,  at  any  time  before  the  property  is  law-  4 

fully  sold  to  satisfy  the  lien,  by  the  bailor  or  upon  his  behalf,  or  by  any  5 

other  person  otherwise  having  the  right  of  possession,  of  a  bond  in  a  penal  6 

sum  equal  to  twice  the  amount  of  such  claim,  signed  by  a  surety  com-  7 

pany  qualified  to  act  in  the  commonwealth,  or  by  sureties  approved  by  8 

a  justice  of  a  district  court  or  a  master  in  chancery  in  the  county  where  9 

the  property  is  held,  and  conditioned  to  pay  the  amount  found  due  on  10 

such  claim  to  the  bailee  within  thirty  days  after  final  judgment,  or  order  1 1 

of  sale  of  such  property.     In  any  suit  to  replevy  any  such  property  12 

held  to  secure  such  a  claim,  a  bond  as  described  herein  shall  satisfy  the  13 

requirements  of  section  eight  of  chapter  two  hundred  and  forty-seven.  14 

bet^"ln  lien  of       SECTION  35.     As  Egaiust  E  Conditional  vendor  or  lessor,  or  person  1 

lessee's  baiJee     claiming  Under  him,  the  lien  of  a  bailee  of  the  vendee  or  lessee  or  person  2 

fessor™'^"'^  ""^    claiming  under  him  on  property  exceeding  twenty  dollars  in  value,  for  3 

1920, 590,  §7.    consideration  furnished,  without  actual  notice  of  the  conditional  sale  or  4 

lease,  shall  prevail;    provided,  that  the  property  was  delivered  to  the  5 

bailee  prior  to  the  breach  of  any  condition  of  the  sale  or  lease.  6 

certa^nper°onai      SECTION  36.     If  pcrsoual  property  excecdiug  twenty  dollars  in  value  1 

Sndetl^iien''     '^  detained  from  the  owner,  or  person  otherwise  entitled  to  its  posses-  2 

1920,590.  §  1.    sion,  under  the  claim  of  a  lien,  and  the  contract  under  which  the  alleged  3 

claim  arose  did  not  specifically  state  in  writing  the  aggregate  amount  of  4 

charges  to  accrue  for  the  services  or  materials  to  be  furnished,  the  owner  5 

or  such  other  person  may  cause  the  said  property  to  be  replevied  in  the  6 

manner  and  subject  to  the  provisions  set  forth  in  sections  seven  to  twenty-  7 

two,  inclusive,  of  chapter  two  hundred  and  forty-seven,  so  far  as  the  8 

same  may  be  applicable,  except  as  is  otherwise  pro\-ided  in  the  three  9 

following  sections.  10 

j^°oi  sufi^"^        Section  37.     Before  the  officer  serving  the  writ  delivers  the  goods  to  1 

sSetie°^          the  plaintiff'  he  shall  take  from  the  plaintiff',  or  from  a  person  acting  in  2 

1920, 590,  §  3.    ijjg  behalf,  a  bond  payable  to  the  defendant  in  such  sum  and  with  such  3 

surety  or  sureties  as  may  be  satisfactory  to  the  defendant,  or  as  may  be  4 

approved  by  a  justice  of  a  district  court  or  a  master  in  chancery  in  the  5 

county  where  the  action  is  brought.     If  the  sureties  are  to  be  so  approved,  6 

the  officer  who  serves  the  ■«Tit  shall  give  written  notice  to  the  defendant  7 

or  to  the  person  from  whose  custody  the  property  has  been  taken,  stating  8 

the  time  and  place  of  hearing  thereon  and  the  names  and  residences  of  the  9 

proposed  sureties,  allowing  not  less  than  one  hour  before  the  time  ap-  10 

pointed  for  the  hearing  and  at  the  rate  of  one  hour  additional  for  each  11 

mile  of  travel.     The  amount  of  the  bond  required  shall  not  exceed  twice  12 


Chap.  256.]  eecogniz.vnces  for  debts.  2655 

13  the  sum  for  which  a  lien  is  claimed  by  the  defendant.     If  the  defendant 

14  or  his  agent  or  attorney  does  not  appear  in  person,  and  does  not  state  in 

15  writing  the  amount  of  his  claim,  no  bond  shall  be  required. 

1  Section  38.     If  the  court  finds  that  the  defendant  has  a  lien  on  the  Trial  of  claim 

2  property  but  that  the  defendant  is  not  otherwise  entitled  to  possession  uenls  claimed. 

3  of  the  property,  judgment  shall  be  rendered  for  the  defendant  for  the  ^®^'''  ^®'*'  ^  ^' 

4  amount  due  under  the  contract,  together  with,  or  deducting,  costs  as 

5  determined  by  the  following  section.     Upon  payment  of  this  amount 

6  to  the  defendant  the  bond  provided  for  in  the  preceding  section  shall  be 

7  held  satisfied,  and  shall  be  delivered  up  to  the  plaintifi'. 

1  Section  39.     In  actions  of  replevin  brought  under  section  thirty-six,  Costs. 

2  costs  shall  be  taxed  against  the  plaintiff'  in  cases  where  the  court  decides  ^^^°'^^°'  ^  *• 

3  that  the  claim  of  the  defendant  for  which  he  asserted  a  lien  was  no  greater 

4  than  the  amount  due  under  the  contract.     In  all  other  cases  costs  shall  be 

5  taxed  against  the  defendant. 


REFERENCES. 

Conditional  sales  of  heating  apparatus,  plvunbing  fixtures,  etc.,  Chap.  1S4,  §  13. 
Mortgages  or  pledges  of  personal  property  under  small  loans  act.  Chap.   140, 
§§  107,  108. 

Warehousemen's  liens,  Chap.  105. 

Bills  of  lading  given  as  security.  Chap.  108. 

IVIechanics'  liens,  Chap.  254. 

Liens  of  innkeepers.  Chap.  140,  §§  14-16. 

Sales  by  pawnbrokers.  Chap.  140,  §  71. 


CHAPTER    256. 

RECOGNIZANCES  FOR  DEBTS. 


Sect. 

1.  Recognizance  for  debt. 

2.  Record  of  recognizance. 

3.  Execution. 

4.  Same  subject. 

5.  Death  of  conusee. 

6.  Death  of  conusor. 


Sect. 
7.  Death  of  one  of  several  conusors  or 

conusees. 
S.  Limitation  of  time  for  issue  of  original 

execution. 
9.  Remedy  for  wrongful  execution. 


1  Section  1.     A  person  who  is  competent  to  contract  by  bond  may  Recognizance 

2  subject  his  person  and  property  to  be  taken  on  execution  by  entering  nsifse. 

3  into  a  recognizance  before  the  superior  court  in  anv  countv,  substantially  r'^I'us^  ^' 

4  as  follows:  '  "  ffU-o 

5§  1-3. 

Be  it  remembered  that  on  this  day  of  ,  f ;  i-s''^' 

of  personaUv  appeared  before  and  acknowledged  himself  R-  L.  199,  5  i. 

to  be  indebted  to  of  in  the  sura  of  to  be  J||  l\l^\  ^i; 

paid  to  said  on  the  day  of  ,  (or  in  years, 

orin  months,  from  this  day)  with  interest  from  this  day;  and,  if  not  tlien 

paid,  to  be  levied  upon  his  goods,  chattels,  lands  and  tenements,  and,  for  want 
thereof,  upon  his  bod}-.     In  v.'itness  whereof  said  hath  hereto  set 

his  hand. 


2656 


EECOGNIZ.VNXES   FOR   DEBTS. 


[ClLiP.    256. 


The  clause  as  to  the  payment  of  interest  may  be  altered  or  omitted 
according  to  the  agreement  of  the  parties;  but,  unless  the  recognizance 
otherwise  expressly  provides,  interest  shall  be  allowed  for  any  delay  after 
the  time  for  payment. 


Record  of 

recognizance. 

1781,36. 

1782,21,  §  2. 

R.S.  lis, 

§§4,5. 

G.  S.  152,  I  4. 

P.  S.  193.  §  4. 

R.  L.  199,  §  2. 


Section  2.  The  recognizance  shall  be  attested  by  the  clerk  of  the 
court,  shall  be  recorded  at  length  in  a  book  kept  for  the  purpose  and  the 
original  shall  then  be  delivered  to  the  conusee.  It  shall  not  be  taken 
unless  the  justice  who  takes  it  knows  or  has  satisfactory  evidence  that  the 
person  oft'ering  to  enter  into  it  is  the  person  whom  he  represents  himself 
to  be  and  who  is  described  as  the  conusor. 


Execution. 
17S1,  36. 
1782,21,5  2. 
R.S.  118, 
§§  6, 12.  16. 
G.  S.  152, 
§§  5,  8.  12. 
P.  S.  193, 
§§6,8,12. 
R.  L.  199,  §  3. 


Section  3.  If  the  debt  is  not  paid  at  the  time  named  in  the  recogni- 
zance, the  court  may  issue  an  execution  in  favor  of  the  conusee  for  the 
amount  due,  which  shall  be  directed,  served  and  returned  in  like  manner 
and  have  like  efl'ect  as  an  execution  issued  upon  a  judgment  of  said 
court.  Such  execution  may  be  levied  and  shall  be  obeyed  in  any  county 
to  which  it  is  directed.  The  conusee  shall  be  entitled  to  an  alias  and 
other  successive  executions  as  in  a  civil  action. 


Same  subject, 
1781,30. 
1782,21,  §2. 
R.S.  118, 
§§7,8. 
G.  S.  152,  §  6. 
P.  S.  193.  §  7. 
R.  L.  199,  §  4. 
8  Mass,  79. 


Section  4.  Before  such  execution  issues,  the  original  recognizance 
shall  be  filed  with  the  clerk,  who  shall  compute  the  amount,  deducting 
any  payments  endorsed,  and  shall  issue  an  execution  therefor  in  common 
form  except  that  it  shall  recite  the  recognizance  and  state  the  amount 
then  due.  Such  execution  may  be  issued  by  the  clerk  without  a  special 
order  of  the  court. 


Death  of 
conusee. 
17S1,  36. 
1782,21.§§2.o.  ... 

K-S.  US,  §13.  tary  or  of  atlministration,  take  out  the  execution  and  the  form  thereof 
p,'s.i93,'§ 9.'    shall  be  altered  accordingly.  R. l.  199,  § 5. 


Section  5.    If  the  conusee  dies  before  the  debt  is  paid,  his  executor 
2  3^  or  administrator  may,  upon  exliibiting  to  the  clerk  his  letters  testamen- 


Death  of 
conusor. 
R.S.  lis,  §  14. 
G.  S.  152,  §  10. 
P.  S.  193,  §  10. 
R.  L.  199,  §  6. 


Section  6.  If  the  conusor  dies  before  the  debt  is  fully  paid,  no  exe- 
cution therefor  shall  issue  as  of  course,  but  his  estate  shall  be  liable  for  the 
debt  in  like  manner  as  if  judgment  therefor  had  been  rendered  against  him 
in  his  lifetime;  and  the  conusee  or  his  executor  or  administrator  may 
recover  the  same  from  the  executor,  administrator,  heirs  or  devisees  of 
the  conusor  in  contract  or  by  a  scire  facias. 


Death  of  one 
of  several 
conusors  or 
conusees. 
1782,  21,  §2. 
R.S.  118, 1  17. 
G.  S.  152, 1  13. 
P.  S.  193,  §  13. 
R.  L.  199,  §  7. 


Section  7.  If  one  or  more  of  several  conusees  or  conusors  dies  before 
the  debt  is  fully  satisfied,  the  rights  and  obligations  of  the  survivors  and 
the  proceedings  for  the  recovery  of  the  debt  shall  be  substantially  the 
same  as  in  the  case  of  the  death  of  one  or  more  joint  judgment  creditors 
or  debtors. 


Limitation  of 
time  for  issue 
of  original 
execution. 
1781,36. 
1782,21,  §5. 
R.S.  118.  §  15. 
G.S.  152,  §  11. 
P.  S.  193,  §  11. 
R.  L.  199,  §  8. 


Section  8.  No  original  execution  shall  issue  as  of  course  upon  such 
recognizance  after  the  expiration  of  three  years  from  the  time  therein 
named  for  payment  of  the  debt  or  from  the  time  of  the  last  payment  en- 
dorsed thereon,  but  the  conusee  or  his  executor  or  administrator  may 
after  that  time  have  a  scire  facias  or  an  action  of  contract  on  it  against 
the  party  liable,  in  like  manner  and  with  like  effect  as  upon  a  judgment. 


ClL\P.   257.]        SEIZURE   AND   LIBELLING   OF  FORFEITED  PROPERTY. 


2657 


1  Section  9.    A  person  who  is  injured  by  the  wrongful  issue  or  levy  of  ^^on^^i'""^ 

2  an  execution  under  this  chapter  may  have  a  writ  of  audita  querela  or  ejeoutjon. 

3  other  remedy  as  if  the  execution  had  been  issued  upon  a  judgment;  and,  i7S2!  21',  §  4. 

4  except  as  other^^ise  expressly  provided,  the  parties  to  such  recognizance  ois!  152!  §  u'. 

5  and  their  representatives  shall  be  entitled  and  liable  to  the  remedies  R.L.'igl'.Va'.' 

6  provided  for  judgment  creditors  and  debtors. 

reference. 
Fee  for  recording,  etc.,  Chap.  262,  §  4. 


CHAPTER    257. 

SEIZURE  AND   LIBELLING   OF   FORFEITED   PROPERTY. 


Sect. 

1.  Seizure  of  forfeited  property. 

2.  Libel  by  person  making  seizure. 

3.  Jurisdiction  and  venue  of  libel. 

4.  Notice    if    libel    is    filed    in    superior 

court. 

5.  Notice  if  libel  is  filed  in  district  court. 

6.  Proceedings. 

7.  Decree. 

8.  Disposition  of  proceeds. 


Sect. 
9.  Seizure  without  probable  cau.se. 

10.  Costs. 

1 1 .  Delivery  of  property  to  claimant. 

12.  Appraisal  on  application  of  claimant. 

13.  Appraisal  on  application  of  person  mak- 

ing seizure. 

14.  Appraisal  conclusive  as  to  jurisdiction. 

15.  Sale  of  perishable  goods. 


1  Section  1.     Property  which  has  been  forfeited  for  an  offence  may.  Seizure  of  for- 

2  if  no  other  provision  is  made,  be  seized  by  a  person  entitled  to  enforce  1793, 43,°!"'^" 

3  the  forfeiture  or,  except  as  othen^'ise  provided,  by  a  police  officer  or  §!  1;  III'.  |  v' 

4  constable  of  the  town  where  the  forfeited  property  is  found,  and  shall  r  L^looVi 

5  be  safely  kept  by  him  until  it  is  disposed  of  as  hereinafter  provided. 


155  Mass.  10. 


14  Gray,  37,5. 
103  M.1SS.  456. 


1  Section  2.     The  person  who  makes  the  seizure  shall,  within  fourteen  Libel  by  per- 

2  days  thereafter,  file  a  libel  in  tlie  superior  court  or  in  a  district  court,  Iti'zme.  ^ 

3  stating  briefly  the  cause  of  the  seizure  without  the  details,  and  praying  r."!.' ii^8,\^2i. 

4  for  a  decree  of  forfeiture.  g,  s.  153,  §  2. 

p.  S.  194,  §  2.  R.  L.  200,  §  2.  1917,  326,  15  Gray,  166. 

1  Section  3.    A  libel  may  be  brought  either  in  the  superior  court  in  the  jurisdiction 

2  county  where  the  offence  was  committed,  or  in  a  district  court  having  juris-  onibTi""*^ 

3  diction  of  the  offence  if  the  value  of  the  property  seized  does  not  exceed  §§®2,'3.^' 

4  the  maximum  jurisdiction  of  that  court  in  ci^■iI  actions.    The  value  for  l^gi'al' 

5  such  purpose  shall  be  ascertained  by  an  appraisal  as  hereinafter  provided,  f;  f  Y'^' 

p.  S.  194,  §  3.  1917,  326,  1919,  5,  9§  .  ■ 

R.  L.  200,  §  3.  19  IS,  257,  §  445.  1920,  2. 

1  Section  4.     Upon  the  filing  of  a  libel  in  the  superior  court,  the  clerk  Notice  if  libei 

2  shall  issue  an  order  of  notice,  stating  briefly  the  substance  of  the  libel,  perio? court.' 

3  which  the  libellant  shall  cause  to  be  published  twice  at  least  in  a  news-  r.°|;  thh^is. 

4  paper  published  in  the  county,  the  first  publication  to  be  not  less  than  p- 1-  j'||'  1 1- 

5  fourteen  days  before  the  return  day.  is85, 384,  §  i.         r.  l.  200,  §  4. 


1  Section  5.     If  the  libel  is  filed  in  a  district  court  the  court  shall  issue  Notice  if  libci 

2  an  order  of  notice,  stating  briefly  the  substance  of  the  libel  and  the  time  uict^courtf'"" 


2658 


SEIZURE   ,'VND   LIBELLING  OF  FORFEITED   PROPERTY.      [Ch.\.P.   257. 


1793,  43, 

§3. 

R.  S. 

118, 

n.i 

,32, 
153, 

34. 

§§1S 

1,14. 

Proceedings. 

1793, 

43, 

§2. 

R.  S. 

118, 

h'l 

,25. 

153, 

§§5, 

6. 

P.S. 

194, 

§§5, 

6. 

R.  L. 

200, 

,§6. 

1917, 

326. 

Decree. 

1793, 

43, 

§2, 

E.S. 

118, 

§26. 

G.S. 

153, 

§  7. 

P.S. 

194, 

§  7. 

R.L. 

200, 

,§7. 

Disposition  of 

proceeds. 

6.S. 

153, 

§8. 

P.S. 

194, 

§8. 

R.  L. 

200,  §  8. 

and  place  appointed  for  the  hearing,  which  the  libellant  shall  cause  to  be  3 
posted  in  a  public  place  within  the  jurisdiction  of  such  court  not  less  than  4 
seven  days  before  the  time  appointed  for  the  hearing.  5 


P.S.  194,  §§  12,  13. 


R.  L.  200,  §  5. 


1917,326. 


Section  6.  The  libel  shall  be  entered  and  conducted  as  a  civil  action; 
and  if  after  notice  no  claimant  appears,  the  court  shall,  upon  a  hearing, 
decree  a  forfeiture,  restoration  or  other  appropriate  disposition  of  the 
property.  If  a  claimant  appears,  he  may  allege  and  answer  any  matter 
material  for  his  defence,  and  either  party  shall  be  entitled  to  claim  a  jury 
trial  upon  issues  of  fact  as  in  other  civil  actions. 


Section  7.     If  the  libellant  maintains  his  action,  the  court  shall  decree  1 

a  forfeiture  and  sale  of  the  property  and  a  distribution  of  the  proceeds,  2 

or  other  appropriate  disposition  thereof.    If  he  fails  to  maintain  it,  the  3 

court  shall  decree  a  restitution  of  the  property  to  the  claimant.  4 

Section  8.     If  property  is  sold  under  sticli  decree,  the  proceeds  shall  1 

be  applied  under  the  direction  of  the  court  to  the  paj-ment  of  the  expenses  2 

of  the  seizure,  prosecution  and  sale;  and  in  default  of  any  other  provi-  3 

sion  for  the  disposition  of  the  residue,  it  shall  be  paid  to  the  person  who  4 

made  the  seizure.  5 


Seizure  with- 
out probable 
cause. 

1793,  43,  §  2. 
R.  S.  118,  §  27. 


Section  9.  If  it  is  found  that  the  seizure  was  groundless  and  without  1 
probable  cause,  reasonable  damages  shall  be  assessed  for  the  claimant,  2 
and  the  court  shall  render  judgment  for  such  damages  with  costs.  3 


G.  S.  153,  §  9. 


P.  S.  194,  §  I 


R.  L.  200,  §  9. 


i793!43,  §  2.  Section  10.  In  all  other  cases  the  court  shall  award  costs  to  the  pre-  1 
G  I'  lis'  I  lo'  vailing  party  or  may  order  the  costs  and  charges  of  keeping  and  selling  2 
p.  s.  194,'  §  10.   the  property  or  any  part  thereof  to  be  paid  out  of  the  proceeds.  3 

R.  L.  200,  §  10. 

property  to  SECTION  11.     Property  which  is  alleged  to  have  been  forfeited  may     1 

179™  43,'§  1.     after  its  seizure  be  delivered  to  the  owner  or  a  person  entitled  to  claim     '^ 
G  i'  153'  1 17'  ^^^^  same,  upon  his  giving  to  the  person  who  made  the  seizure  a  bond 
P-  s.  194^  5 16    Jn  double  the  value  of  the  property,  with  sufficient  surety,  conditioned 
to  restore  the  propertj',  or  pay  the  appraised  value  thereof  if  it  is  decreed 
forfeited,  and  to  abide  by  and  perform  the  final  order,  decree  or  judgment. 


appUrattin  of  SECTION  12.     The  valuc  of  the  property  shall  be  determined  by  three 

i7*9™43''§  1  disinterested  persons  appointed  by  the  parties  or  by  a  justice  of  the 

c'  s  1-3'  I  is'  P6^<^6  t<^  whom  the  claimant  applies  therefor,  or,  if  the  appraisal  is  made 

p.'s.'  194,'  §  17.'  after  the  libel  has  been  filed,  by  the  court  before  whom  it  is  pending. 


R.  L.  200,  §  12. 


1917,  326. 


appiicationof  SECTION  13.  The  pcrsou  wlio  makcs  the  seizure  shall  forthwith, 
sdzu're.™^'^"*  unless  an  application  for  an  appraisal  has  been  made  by  a  claimant, 
R^I.'nW^ss.  apply  to  a  justice  of  the  peace,  who  shall  appoint  three  disinterested 
p' I'  194' I  IS  persons  to  make  an  inventory  and  appraisal  of  the  property  seized.  Such 
R-  L.  200,  §  13.  appraisers  shall  be  sworn  and  shall  return  their  inventory  and  appraisal 
to  the  court  before  whom  the  libel  is  pending. 


Crap.  258.] 


CLAniS  AGAIXST  THE   COMMONWEALTH. 


2659 


1  Sectiox  14.     The  appraisal,  under  section  twelve,  if  any,  otherwise,  Appraisal  con- 

2  under  section  thirteen,  shall  be  conclusive  as  to  the  jiu-isdiction  of  the  j^SfcUon" 

3  court  in  which  the  libel  is  to  be  filed.  1793, 43. 1 1. 

R.  S.  118,  §  39.  G.  S.  153,  §  20.  p.  S.  194,  §  19.  R.  L.  200,  §  14. 


1  Section  15.     If  appraisers  appointed  under  section  thirteen  certify  Saie  of  pensh- 

2  that  property  so  seized  is  perishable  and  likely  to  depreciate  in  value  by  r.  sAT^' 
■^  being  kept,  any  district  court  may  order  a  sale  by  auction  of  such  prop-  g.  s°'i53, 


erty  at  such  time  and  after  such  notice  as  the  order,  which  shall  be  en- 
dorsed on  the  inventory,  shall  direct; 


21.  22. 
P'  S.  194, 

but  this  section  shall  not  affect  |§  1°',^  §  is 

6  the  power  of  the  court  in  which  the  libel  is  pending  to  order  a  sale  of  isi"^  ^au.' 

7  the  propertv  for  sufficient  cause  at  anv  time  during  the  pendency  of  the 

8  libel. 


REFERENCES. 

Seizure  of  lobsters,  Chap.  130,  §§  110-11.3. 

Forfeiture  of  seines,  etc.,  illegally  used.  Chap.  130,  §§  74,  76,  1.52. 

Note.  —  This  chapter  does  not  apply  to  gaming  implements  (103  Mass.  456). 


CHAPTER    258. 

CLAIMS   AGAINST   THE   COMMONWEALTH. 


Sect. 

1,  Jurisdiction  of  claims  against  the  com- 

monwealth, etc. 

2.  Certain  cases  to  be  tried  without  a  jurj', 

etc. 


Sect. 

3.  Decision  in  favor  of  petitioner. 

4.  Judgment  in  favor  of  commonwealth. 

5.  Statutes  of  limitation  applicable. 


1  Section  1.    The  superior  court,  except  as  otherwise  expressly  pro-  jurisdiction 

2  vided,  shall  have  jurisdiction  of  all  claims  at  law  or  in  equity  against  the  againstWe 

3  commonwealth.    Such  claims  may  be  enforced  by  petition  stating  clearly  commonwealth, 

4  and  concisely  the  nature  of  the  claim  and  the  damages  demanded,  and  Jf"?:,^^^' 

5  such  petition  shall  be  served  by  the  sheriff  of  Suffolk  county  or  any  p.  s.  195, 

6  of  his  deputies  by  leaving  an  attested  copy  thereof  in  the  hands  or  in  iss?',  246. 

7  the  office  of  the  attorney  general,  and  a  like  copy  in  the  hands  or  in  the  1905!  370!  1 1'. 

8  office  of  the  state  secretary,  thirty  days  at  least  before  the  return  day  \~l  HlH]  1% 


9  thereof. 


ISl  Mass.  315. 


193  Mass.  387 


197  Mass.  137. 
204  Mass.  482. 


205  Mass.  523. 
212  Mass.  534. 


224  Mass.  28. 
236  Mass.  599. 


Section  2.     The  laws  relative  to  tender,  offer  of  judgment,  set-ofT  ^''be  trfed^^ 
and  recoupment  shall  apply  to  the  said  petition,  and  the  case  shall  be  without  a 
tried  bv  the  court  without  a  jurv.    All  hearins^s  shall  be  in  open  court,  ex-  1879',  255. 
cept  that  on  motion  by  the  attorney  general  or  the  petitioner  an  auditor  p.  s.'  165.  §  3. 


5  or  master  may  be  appointed,  and  questions  of  law  may  be  taken  to  the  ^^l[  fo?;  5  2. 

6  supreme  judicial  court,  as  in  other  cases.    If  the  amount  claimed  exceeds  Jgolilss  ^  ^' 

7  two  thousand  dollars,  the  petition  shall  be  brought  in  Suffolk  countv,  i^?^,  204,  §  1 

01  •        •      o     ^    11  •        1  11  •   •  -1  1910, 55o,  §  3; 

8  otherwise  in  Suffolk  county  or  m  the  county  where  the  petitioner  resides,  ''i-'-., 

9  If  the  petition  is  to  recover  damages  for  injuries  sustained  while  traveling  197  Mass!  137! 

10  on  a  state  highway,  it  may  be  brought  in  Suffolk  county  or  in  the  county 

11  where  the  petitioner  resides  or  where  the  injuries  were  sustained. 


2660 


CLAIMS   AGAINST  THE   COMMONWEALTH. 


[Chap.  258. 


Decision  in 
favor  of 
petitioner. 
1879,  255,  §  4. 
P.  S.  195,  §  4. 
R.  L.  201,  §  3. 
1  Op.  A.  G. 
556. 


Section  3.     If  the  final  decision  is  in  favor  of  the  petitioner,  the  chief  1 

justice  of  the  superior  court  shall  certify  to  the  governor  the  amount  found  2 

due,  with  the  legal  costs;   and  the  governor  shall  draw  his  warrant  for  3 

such  amount  on  the  state  treasurer,  who  shall  pay  the  same  from  any  4 

appropriations  made  for  the  purpose  by  the  general  court.  5 


frvcfrTf^cVm-         Section  4.     If  the  decision  is  in  favor  of  the  commonwealth,  judg-  1 

isra^lss'^j  4     Dient  for  costs  and  execution  thereon  shall  issue  in  its  favor  against  the  2 

p.  s.'i95,'§5.     petitioner;    and  if  such  judgment  is  final,  the  claim  shall  be  forever  3 

barred.  4 


R.  L.  201,  §4. 


Statutes  of 
limitation 
applicable. 
1S79,  255,  §  5. 


Section  5.    Laws  relative  to  the  limitation  of  actions  shall  apply  to     1 
claims  against  the  commonwealth  and  to  the  remedy  herein  provided.  2 

p.  S.  195,  §  6.  R.  L.  201,  §  5. 


REFERENCES. 

Speedy  trials  in  land  damage  cases  against  commonwealth,  Chap.  79,  §  34. 
Writ  of  entry  against  commonwealth,  Chap.  237,  §  2. 


Chap.  259.] 


PREVENTION   OF  FRAUDS  AND   PERJURIES. 


2661 


TITLE    V. 

STATUTES  OF  FRAUDS  AND  LIMITATIONS. 

Chapter  259.     Prevention  of  Frauds  and  Perjuries. 
Chapter  260.     Limitation  of  Actions. 


CHAPTER    259. 

PREVENTION   OF   FRAUDS   AND   PERJURIES. 


Sect. 

1.  Certain  contracts  actionable  only  if  in 

writing. 

2.  Consideration  need  not  be  in  writing. 

3.  New  promise  by  insolvent  debtor  to  be 

in  writing. 


Sect. 

4.  Representation  as  to  another's  credit  to 

be  in  writing. 

5.  Agreement  to  make  a  will,  etc.,  to  be  in 

writing. 

6.  Contracts  for  sale  of  stocks,  etc.,  void, 

when. 


1  Section  1.     No  action  shall  be  brought: 

2  First,  To  charge  an  executor  or  administrator,  or  an  assignee  under 
.3  an  insolvent  law  of  the  commonwealth,  upon  a  special  promise  to  answer 
4  damages  out  of  his  own  estate;  1692-3, 1.5,  §  2.  1733, 37,  §  1. 

1. 


Certain  con- 
tracts action- 
able only  if  in 
writing. 
29  Car.  II, 
0.3,  §4. 


17SS,  16,  §  1. 
R.  S.  74.  §  1. 
1848,  252. 


G.  S.  10.5,  < 
P.  S.  78.  § 
R.  L.  74,  § 


5  Second,  To  charge  a  person  upon  a 

6  debt,  default  or  misdoings  of  another; 


12  Cuah.  282. 
12  Gray.  357. 
1.  205  Mass.  472. 

special  promise  to  answer  for  the  n  uass.  229. 

6  Pick.  509. 


7  Pick.  220. 
9  Pick.  306. 
15  Pick.  1.59. 

17  Pick.  538. 

18  Pick.  369,  467. 
20  Pick.  467. 

3  Met.  396. 
13  Met.  539. 

5  Cush.  488. 

6  Cush.  549. 

7  Cusii.  133. 
1  Gray,  391. 
5  Gray,  45. 

8  Gray,  233. 


9  Gray,  76. 
13  Gray,  613. 

1  Allen,  405. 

2  Allen,  417. 

3  Allen,  540. 
5  Allen,  370. 
11  Allen,  365. 

13  Allen.  114,136. 
98  Mass.  296. 
100  Mass.  327. 

105  Mass.  443. 

106  Mass.  400. 

107  Mass.  272. 

108  Mass.  246. 


Ill  Mass. 
116  Mass. 
lis  Mass. 
120  Mass. 
124  Mass. 

129  Mass. 

130  Mass. 

131  Mass. 
134  Mass. 
160  Mass. 
172  Mass. 
174  Mass. 
176  Mass. 
181  Mass. 


501. 

541. 

137,521. 

322. 

105. 

373. 

437. 

47,93. 

27.  140. 

166.  225. 

355. 

511. 

570. 

345. 


189  Mass. 

191  Mass. 

192  Mass. 
201  Mass. 

206  Mass. 

207  Mass. 

208  Mass. 

209  Mass. 

217  Mass. 

218  Mass. 

230  Mass. 

231  Mass. 

232  Mass. 


48. 

469. 

204. 

318,469. 

472. 

409. 

399. 

421,570. 

13. 

5. 

21,  248. 

362. 

566. 


Third,  Upon  an  agreement  made  upon  consideration  of  marriage; 

233  Mass.  468. 


132  Mass.  359. 
154  Mass.  593. 


8  Fourth,  Upon  a  contract  for  the  sale  of  lands,  tenements  or  heredita-  4  Mass.  400, 

9  ments  or  of  any  interest  in  or  concerning  them ;  or, 


488. 

5  Mass.  133. 


11  Mass.  342. 

12  Mass.  513. 

16  Mass.  39. 

17  Mass.  249. 
1  Pick.  328. 
17  Pick.  638. 
20  Pick.  134. 

1  Met.  313,  483. 

2  Met.  423. 

6  Met.  319. 

7  Met.  57. 

8  Met.  34. 
1  Cush.  79. 
6  Cush.  549. 

8  Cush.  223. 

5  Gray,  492. 

6  Gray,  SDO. 

9  Gray,  313. 


,361. 


13  Gray,  86. 
2  Allen,  439. 

8  Allen,  540. 

9  Allen,  387. 

10  Allen,  82. 

11  Allen,  141, 
99  Mass.  354. 

102  Mass.  24. 

103  Mass.  408,  484. 

104  Mass.  309. 
107  Mass.  290. 

109  Mass.  130. 

1 10  Mass.  92. 

111  Mass.  250. 
113  Mass.  31,372. 

115  Mass.  256. 

116  Mass.  416,  515. 
118  Mass.  521. 


119  Mass.  526. 

123  Mass.  185,506. 

124  Mass.  478. 
130  Mass.  388. 

133  Mass.  414. 

134  Mass.  109. 

135  Mass.  500. 
137  Mass.  309. 
139  Mass.  3. 
141  Mass.  368. 
145  Mass.  69. 
153  Mass.  268. 
162  Mass.  566,  579. 
165  Mass.  273. 
173  Mass.  580. 
176  Mass.  566. 
181  Mass.  401. 
1S9  Mass.  285. 


193  Mass.  444. 

195  Mass.  124. 

196  Mass.  395,  509. 
201  Mass.  596. 

204  Mass.  346. 

205  Mass.  396,  547. 
208  Mass.  300. 

210  Mass.  328. 

211  M.ass.  37. 
213  Mass.  380. 
216  M.as3.  416. 
218  Mass.  483. 
220  Mass.  186. 

225  Mass.  341. 

226  Mass.  1.56. 
229  Mass.  87. 
231  Mass.  324. 
234  Mass.  17. 


2662 


PHEVENTION  OF  FRAUDS   AND   PERJURIES. 


[Chap.  259. 


3  Pick.  83. 
13  Pick.  1. 
IS  Pick.  569. 
19  Pick.  364. 


7  Mass.  233. 
13  Mass.  87. 

2  Pick.  64. 

3  Pick.  83. 

7  Pick.  301. 

8  Pick.  9.  252. 
15  Pick.  159. 


Fifth,  Upon  an  agreement  that  is  not  to  be  performed  within  one  10 
year  from  the  making  thereof; 


11 


22  Pick.  97. 

7  Met.  46. 

8  Met.  59. 
11  Met.  411. 

4  Cush.  42. 
1  Gray,  131. 

5  Gray,  41. 


11  Gray,  168. 
16  Gray,  448. 
9  AUen,  8. 
11  Allen,  123. 
97  Mass.  208. 
99  Mass.  461. 
105  Mass.  443. 


106  Mass.  .56. 
118  Mass.  279. 
145  Mass.  361. 
151  Mass.  433. 
167  Mass.  544. 
175  Mass.  427,  536. 
181  Mass.  256. 


208  Mass.  399. 

209  Mass.  570. 
218  Mass.  4S3,  542. 
220  Mass.  324. 
230  Mass.  24S. 
232  Mass.  239.  566. 
234  Mass.  51G. 


Unless  the  promise,  contract  or  agreement  upon 
brought,  or  some  memorandum  or  note  thereof,  is 
by  the  party  to  be  charged  therewith  or  by  some 
him  lawfully  authorized. 


which  such  action  is  12 

in  writing  and  signed  1.3 

person  thereunto  by  14 

15 


16  Pick.  227. 

19  Pick.  502. 

20  Pick.  9. 

2  Met.  283. 

3  Met.  486. 
12  Met.  353. 
13Met.  385,453,  520. 
2  Cush.  355. 

4  Cush.  497. 
6  Cush.  508. 

8  Cush.  223. 

9  Cush.  31. 

11  Cush.  1,  127. 
2  Gray,  387,476. 

5  Gray,  492. 

6  Gray,  25,  500. 

7  Gray,  33. 

9  Gray,  397. 

10  Gray,  609. 

16  Gray,  202.  436. 

9  Allen,  412,419.474. 

10  Allen,  322,  326. 

11  Allen,  123,361. 


12  Allen,  130. 

154  Mass.  257. 

13  Allen,  333. 

157  Mass.  439. 

14  Allen,  242,  407.  487. 

158  Mass.  113. 

98  Mass.  545. 

161  Mass.  161,  248. 

101  Mass.  291,409,449. 

165  Mass.  273. 

102  Mass.  204. 

167  Mass.  426. 

104  Mass.  407. 

169  Mass.  595. 

107  Mass.  290. 

170  Mass.  461. 

112  M.ass.  15,  19. 

171  Mass.  152. 

114  Mass.  16. 

174  Mass.  296. 

115  Mass.  413. 

175  Mass.  349. 

116  Mass.  223,515. 

176  Mass.  287,  425. 

117  Mass.  96. 

178  Mass.  172. 

119  Mass.  482. 

179  Mass.  427. 

121  Mass.  494. 

180  Mass.  377. 

132  Mass.  129. 

197  Mass.  325. 

134  Mass.  127. 

204  Mass.  346. 

135  Mass.  500. 

208  Mass.  300. 

141  Mas.s.  368. 

210  Mass.  560. 

142  Mass.  130,  232. 

213  Mass.  380. 

143  Mass.  386. 

216  Mass.  57,  416. 

144  Mass.  256,  465. 

229  Mass.  95. 

153  Mass.  308,321. 

234  Mass.  17. 

Consideration 
need  not  be 
in  writing. 
R.  .S.  74.  §2. 
G.  S.  105,  §  2. 
P.  S.  78,  §  2. 


Section  2.  The  consideration  of  such  promise,  contract  or  agree- 
ment need  not  be  set  forth  or  expressed  in  the  writing  signed  by  the 
party  to  be  charged  therewith,  but  may  be  proved  by  any  legal  evidence. 

R.L.  74,  §2.  5  Cush.  488. 

17  Mass.  122.  1  Gray,  391. 
15  Pick.  159.  4  Gray,  318. 

18  Pick.  467. 


159  Mass.  451. 
191  Mass.  565. 
193  Mass.  444. 


208  Mass.  399. 
210  Mass.  560. 
216  Mass.  57. 


New  promise 
by  insolvent 
debtor  to  be 
in  writing. 
1S56,  IS. 
G..S.  105,  §  3. 
P.  S.  78,  §  3. 
R.  L.  74,  §  3. 
1  Cush.  77. 

5  Cush.  484. 

6  Cush.  210. 

7  Cush.  462. 

7  Gray,  460. 

8  Gray,  230. 
7  Allen,  463. 


Section  3.    No  promise  for  the  payment  of  a  debt,  made  by  an  1 

insolvent  debtor  who  has  obtained  his  discharge  from  such  debt  under  2 

proceedings  in  bankruptcy  or  insolvency,  shall  be  evidence  of  a  new  or  3 

continuing  contract  whereby  to  deprive  the  debtor  of  the  benefit  of  4 

relying  upon  such  discharge  in  bar  of  the  recovery  of  a  judgment  5 

upon  such  debt,  unless  such  promise  is  made  by  or  contained  in  some  6 

writing  signed  by  him,  or  by  some  person  thereunto  by  him  lawfully  7 

authorized.  124  Mass.  Sei.  130  Mass.  14.  8 


136  Mass.  102. 

139  Mass.  12,  297,  345. 


141  Mass.  14,  16. 
161  Mass.  16. 


171  Mass.  347. 
193  Mass.  576. 


Representation 
as  to  another's 
credit  to  be  in 
writing. 
1834, 182,  §  5. 
R.  S.  74,  §  3. 
G.  S.  105,  §  4. 
P.  S.  78.  §  4. 
R.L.  74,  §4. 
6  Met.  246. 
4  Gray,  156. 


Section  4.     No  action  shall  be  brought  to  charge  a  person  upon  or  1 

by  reason  of  a  representation  or  assurance  made  concerning  the  char-  2 

acter,  conduct,  credit,  ability,  trade  or  dealings  of  any  other  person,  3 

unless  such  representation  or  assurance  is  made  in  WTiting  and  signed  4 

by  the  party  to  be  charged  thereby,  or  by  some  person  thereunto  by  5 

him  lawfully  authorized.  6 


13  Gray,  285. 

14  Gray.  608. 

15  Gray,  562. 


2  Allen,  386. 
8  Allen.  207. 
122  Mass.  189. 


142  Mass.  120. 
157  Mass.  1. 
179  Mass.  174. 


186  Mass.  69. 
206  Mass.  318. 
222  Mass.  504. 


Agreement  to  SECTION  5.    No  agreement  to  make  a  will  of  real  or  personal  propertv  1 

make  a  will,  .                                   »                                  .          ,      ,i   ,        ■  •      ,•                i                   i  -, 

etc..  to  be  in  or  to  give  a  legacy  or  make  a  devise  shall  be  binding  unless  such  agree-  2 

18^88, 372.  ment  is  in  writing  signed  by  the  person  whose  executor  or  administrator  3 


Ch.\p.  260.] 


LIMITATION   OF  ACTIONS. 


2663 


4  is  sought  to  be  charged,  or  by  some  person  by  him  duly  authorized,  f^^^^^^^^gg 

5  This  section  shall  not  apply  to  any  agreement  made  prior  to  May  JUm"^^  ofi 

6  seventeenth,  eighteen  hundred  and  eighty-eight. 


179  Mass.  30. 
191  Mass.  579. 


19S  Mass.  441. 
218  Mass.  105. 


230  Mass.  428. 
233  Mass.  468. 


1  Section  6.     Every  contract,  written  or  oral,  for  the  sale  or  transfer 

2  of  a  certificate  or  other  evidence  of  debt  due  from  the  United  States  or 

3  from  an  individual  state,  or  of  stock  or  a  share  or  interest  in  the  stock 

4  of  a  bank,  company,  city  or  village,  incorporated  under  a  law  of  the 

5  United  States  or  of  an  individual  state,  shall  be  void,  unless  the  party 

6  contracting  to  sell  or  transfer  the  same  is,  at  the  time  of  making  the 

7  contract,  the  owner  or  assignee  thereof,  or  authorized  by  the  owner  or 

8  assignee  or  his  agent  to  sell  or  transfer  the  certificate  or  other  evidence 

9  of  debt,  share  or  interest  so  contracted  for. 


Contracts  for 
sale  of  stocks, 
etc.,  void, 
when. 
1836,  279. 
G.S.  105,  §  6. 
P.S.  78.  §6. 
R.  L.  74,  §7. 
12  Met.  428. 
3  Gush.  137. 
7  Gray,  160. 
3  Allen,  238. 
10  AUen,  245, 
337. 


98  Mass.  161. 
103  Mass.  313. 
107  Mass.  49. 
127  Mass.  476. 


135  Mass.  431. 
139  Mass.  492.  531. 
141  Mass.  225. 
149  Mass.  171. 


151  Mass.  504. 
195  Mass.  419. 

199  Mass.  242. 

200  Mass.  209. 


REFERENCE. 

Contracts  to  sell  goods,  etc.,  valued  at  S500  or  more  not  enforceable  unless  mem- 
orandum is  signed  by  party  to  be  charged,  Chap.  106,  §  6. 


CHAPTER    260. 

LIMITATION   OF   ACTIONS. 


Sect. 

limitation  of  personal  actions. 

1.  Limitation  of  twenty  years. 

2.  Limitation  of  six  years. 

3.  Limitation  of  four  years. 

4.  Limitation  of  two  years. 

5.  Actions  for  penalties. 

6.  Mutual  current  account. 

7.  Disabilities. 

8.  Same  subject. 

9.  Suspension  in  case  of  non-resident  de- 

fendant. 

10.  Extension  of  time  in  case  of  death. 

11.  Suits  against  executors,  etc.,  on  their 

contracts,  etc. 

12.  Extension  of  time  in  case  of  fraudulent 

concealment. 

13.  Acknowledgment  or  new  promise. 

14.  Effect  of  part  payment. 

15.  Promise    or    payment    by    joint    con- 

tractor, etc. 

16.  Judgment  in  such  case. 

17.  Plea  in  abatement.   ■ 


Sect. 

IS.  Actions  by  commonwealth. 

19.  Special  limitations. 

20.  Presumption   of   satisfaction   of   judg- 

ment. 

limitations    of    real   actions  AND   RIGHTS 
OF  entry. 

21.  Actions  for  recovery  of  land. 

22.  When  the  twenty  years  begin  to  run. 

23.  Same  subject. 

24.  Corporation  sole. 

25.  Disabilities. 

26.  Death  during  disability. 

27.  Successive  disabilities. 

28.  Requisites  of  effectual  entry. 

29.  Estates  tail. 

30.  Same  subject. 

31.  Actions  by  the  commonwealth. 

PROCEEDINGS     UPON    F.^ILURE     OF     ORIGIN-IL 
ACTION. 

32.  Extension  of  time  in  case  of  abatement. 


LIMITATION   OF   PERSONAL  ACTIONS. 

1  Section  1.     The  follo^^■ing  actions  shall  be  commenced  only  within  J;j.^n'y'y^re. 

2  twenty  years  next  after  the  cause  of  action  accrues:         1770-1,9,  §  s. 

1786,  52,  §  5.  P.  S.  197,  §§  1,  0,  7.  11  Met.  210. 

R.  S.  120.  §§  1,  4,  7.  R.  L.  202.  §  1.  6  Cush.  493. 

G.  S.  155,  |§  1,  4.  7.  3  Met.  390.  S  Cush.  365. 


2664 


LIMITATION   OF  ACTIONS. 


[Chap.  260. 


4  Met,  164. 
9  Cush.  365. 


215  Mass.  18. 


16  Mass.  290. 
8  Pick.  246. 

17  Pick.  386. 
19  Pick.  43. 
23  Pick.  282. 


6  Cush.  493. 
194  Mass.  244. 


First,  Actions  upon  contracts  under  seal. 

170  Mass.  236.  215  Mass.  552. 


217  Mass.  120. 


Second,  Actions  upon  bills,  notes  or  other  evidences  of  indebtedness 
issued  by  a  bank. 

Third,  Actions  upon  promissory  notes  signed  in  the  presence  of  an 
attesting  witness,  if  brought  by  the  original  payee  or  by  his  executor  or 
administrator.  i  Met.  21.  4  Met.  219,537. 


13  Met.  128. 
1  Cush.  276. 

4  Cush.  176. 

5  Cush.  442. 

6  Cush.  139,  172. 
10  Cush.  92. 


1  Gray,  261. 

115  Mass.  534,  594,599. 

123  Mass.  559. 

124  Mass.  149. 

125  Mass.  446. 

126  Mass.  342. 


134  Mass.  245. 
142  Mass.  12. 
150  Mass.  1G6. 
167  Mass.  74. 
205  Mass.  376. 
213  Mass.  330. 


Fourth,  Actions  upon  contracts  not  limited  by  the  following  section  or    9 
bv  anv  other  law.  10 


Limitation  of 
six  years. 
1718-19, 
10,  §  1. 
1740-1,4, 
§§1,2. 


22  Pick.  430. 
9  Met.  182. 
4  Gray,  385. 

6  Gray,  515. 
3  Allen,  42. 

7  Allen,  499. 
106  Mass.  563. 


7  Pick.  152. 
156  Mass.  21. 


Section  2.  The  following  actions  shall,  except  as  otherwise  pro-  1 
vided,  be  commenced  only  within  six  years  next  after  the  cause  of  2 
action  accrues:  1743-9,  i7,  §  i.  3 


1770-1,9,  §2. 
1786,  52,  §  1. 
R.  S.  120,  §  1. 
G.  .S.  155,  §  1. 
P.  S.  197,  §  1. 
R.  L.  202,  §  2. 
13  Pick.  418. 


7  Met.  116,  227. 
2  Cush.  92. 
110  Mass.  345,  454. 
117  Mass.  359. 
132  Mass.  436. 
142  Mass.  383. 
145  Mass.  503. 


146  Mass.  118. 

150  Mass.  158. 

151  Mass.  46. 
168  Mass.  133. 
170  Mass.  63. 
173  Mass.  233. 
177  Mass.  212. 


First,  Actions  of  contract  founded  upon  contracts  or  liabilities,  express  4 

or  implied,  except  actions  limited  by  the  preceding  section  or  actions  5 

upon  judgments  or  decrees  of  com-ts  of  record  of  the  United  States  or  of  6 

this  or  of  any  other  state  of  the  United  States.  7 


130  Mass.  373. 
159  Mass.  17. 
168  Mass.  234. 
189  Mass.  104. 

193  Mass.  488. 

194  Mass.  244. 


Second,  Actions  of  tort. 


162  Mass.  412. 


200  Mass.  599. 
213  Mass.  330. 

215  Mass.  18.  552. 

216  Mass.  156,  289. 

217  Mass.  120. 

218  Mass.  425. 


200  Mass.  293. 


219  Mass.  23. 
230  Mass.  49. 

232  Mass.  38: 

233  Mass.  591. 

234  Mass.  467. 
2  0p.  A.  G  502. 


201  Mass.  502. 


Third,  Actions  of  replevin. 


9 


Limitation  of 
four  years. 
1796,  71. 
R.  S.  14,  §  78; 
120,  §  3. 


Section  3.  Actions  against  sheriffs  for  the  misconduct  or  negligence  1 
of  their  deputies  shall  be  commenced  only  within  four  j-ears  next  after  2 
the  cause  of  action  accrues.  3 


G.  S.  155,  §  3. 
P.  S.  197,  §  2. 


R.  L,  202.  §  3. 
10  Met.  244. 


12  Cush.  161. 
4  Gray,  295. 


Limitation  of 
two  years. 
1740-1,  4. 
§§  1,2;  9,  §2. 
1770-1,9,  §  2. 
1786,  ,52.  §  1. 
R.  S.  120,  §  2. 
G.  S.  155,  §  2. 
1801,  177, 
§§  1,2. 
P.  S.  197,  I  3. 
R.  L.  202,  §  4. 
1902,  40G. 


Section  4.  Actions  for  assault  and  battery,  false  imprisonment, 
slander,  actions  against  sheriffs,  deputy  sheriffs,  constables  or  assignees 
in  insolvency,  for  the  taking  or  conversion  of  personal  property,  and 
actions  of  tort  for  injuries  to  the  person  against  counties,  cities  and  towns, 
sliall  be  commenced  only  within  two  j-ears  next  after  the  cause  of  action 
accrues;  and  actions  for  libel  shall  be  commenced  only  within  one  year 
next  after  the  cause  of  action  accrues. 

1913,  435.  4  Gray,  295.  156  Mass.  21.  197  Mass.  178. 


Actions  for 
penalties. 
1788,  12.  I  1. 
R.  .S.  120, 
§§21,22. 
G.  S.  155, 
§§20,21. 


Section  5.     Actions  for  penalties  or  forfeitures  under  penal  statutes,  1 

if  brought  by  a  person  to  wliora  the  penalty  or  forfeiture  is  given  in  2 

whole  or  in  part,  shall  be  commenced  only  within  one  year  next  after  3 

the  offence  is  committed.     But  if  the  penalty  or  forfeiture  is  given  in  4 


Chap.  260.]  limit.'^tion  of  actions.  2665 

5  whole  or  in  part  to  the  commonwealth,  an  action  therefor  by  or  in  behalf  ^^^- 1^''- 

6  of  the  commonwealth  mav  be  commenced  only  within  two  years  next  ?■  ^  202  §5. 

_       „  ,  „  .  -.^      1  11  Cush.  512. 

7  atter  the  otience  is  committed. 

6  Gray,  338.  134  Mass.  471.  145  Mass.  311.  216  Mass.  156. 

1  Section  6.    In  an  action  of  contract  brought  to  recover  the  balance  Mutual  cur- 

2  due  upon  a  mutual  and  open  account  current,  the  cause  of  action  shall  be  r.^s.^^m^F  5. 

3  held  to  have  accrued  at  the  time  of  the  last  item  proved  in  the  account.      p;|;  197 'I  |; 

R.  L.  202,  5  6.  97  Mass.  476.  169  Mass.  285. 

2  Mass.  217.  118  Mass.  486.  173  Mass.  233. 

3  Pick.  96.  121  Mass.  300.  201  Mass.  135. 

3  Met.  216.  136  Mass.  30.  217  Mass.  120. 
llCush.  2.'i8.                                  144  Mass.  35.                                 230  Mass.  49. 

4  Allen,  108.  154  Mass.  472. 

1  Section  7.     If  the  person  entitled  thereto  is  a  minor,  or  is  insane  or  Disabilities. 

2  imprisoned  when  a  right  to  bring  an  action  first  accrues,  the  action  may  lo.  §  2. ' 

3  be  cc5mmenced  within  the  time  hereinbefore  limited  after  the  disability  1745^9;  ivf/i. 

4  is  removed.  1770-1, 9,  §  6. 

1786.  52,  §  4.  G.  S.  155,  §  6.  P.  S.  197,  §  9.  136  Mass.  564. 

R.  S.  120.  §  6.  1880,  13.  R.  L.  202,  §  7.  199  Mass.  109. 

1  Section  8.     If  a  person  is  disabled  from  commencing  an  action  be-  same  subject. 

2  cause  he  is  a  subject  or  citizen  of  a  country  which  is  at  war  with  the  §;  a  lit'.  §  s! 

3  United  States,  the  time  of  the  continuance  of  such  war  after  the  cause  r  l,2'o2,Vs'' 

4  of  action  accrues  shall  be  excluded  in  determining  the  period  herein  lim- 

5  ited  for  the  commencement  of  the  action. 

1  Section  9.     If,  when  a  cause  of  action  hereinbefore  mentioned  accrues  Suspension  in 

2  against  a  person,  he  resides  out  of  the  commonwealth,  tlie  action  may  be  resident°de- 

3  commenced  within  the  time  herein  limited  after  he  comes  into  the  com-  i'74s-9'i7,  §  3. 

4  monwealth;  and  if,  after  a  cause  of  action  has  accrued,  the  person  against  Jre^li^fj^"' 

5  whom  it  has  accrued  resides  out  of  the  commonwealth,  the  time  of  such  g- 1-  J^o,  1 9. 

6  residence  shall  be  excluded  in  determining  the  time  limited  for  the  com-  isso,  98. ' 

7  mencement  of  the  action;  but  no  action  shall  be  brought  by  any  person  r'.'l.  202. j  o.' 

8  upon  a  cause  of  action  which  was  barred  by  the  laws  of  any  state  or  u  Mass.  203. 

9  country  while  he  resided  therein.  17  Mass.  55,  iso. 

I  Pick.  263.  15  Gray,  349.  118  Mass.  337. 

II  Pick.  36.  6  Allen,  322.  423.  125  Mass.  574. 
16  Pick.  359.  10  Allen,  433.  128  Mass.  219. 
7  Met.  435.  99  Mass.  504.  145  Mass.  370. 
11  Met.  210.  100  Mass.  167.  146  Mass.  20. 

5  Gray,  397.  109  Mass.  40, 239, 410.  147  Mass.  81. 

6  Gray,  427,  517.  Ill  Mass.  526.  217  Mass.  548. 

1  Section  10.     If  a  person  entitled  to  bring  or  liable  to  any  action  Extension  of 

2  before  mentioned  dies  before  the  expiration  of  the  time  hereinbefore  ofTeSh™^^ 

3  limited,  or  within  thirty  days  after  the  ex-piration  of  said  time,  and  the  J^''^|;  ilo,\^io. 

4  cause  of  action  by  law  sur\'ives,  the  action  may  be  commenced  by  the  p.  1. 1|3,  §  lo. 

5  executor  or  administrator  at  any  time  within  the  period  within  wliich  R-  l  202  |  To. 

6  the  deceased  might  have  brought  the  action  or  witliin  two  years  after  5  AUon,'  27. ' 

7  his  giving  bond  for  the  discharge  of  his  trust  and  against  the  executor  hs  Mass.' 489'. 

8  or  administrator  in  accordance  with  the  limitations  provided  by  chap-  HI  l\l^[  5s6. 

9  ter  one  hundred  and  ninety-seven,  relative  to  the  limitation  of  actions  |°^  J^J^^I;  ^||; 
10  against  the  executor  or  administrator  by  creditors  of  the  deceased.  219  Mass.  23. 

1  Section  11.     An  action  founded  on  any  contract  made  or  act  done,  suits  against 

2  if  made  or  done  by  any  person  acting  as  the  executor,  administrator  etc™oi"'their 

3  or  other  legal  representative  of  the  estate  of  a  deceased  person,  shall  Hl^^'^^l^  ''"^' 

4  be  brought  within  one  vear,  or,  if  made  or  done  by  anv  person  acting  1914J099,  §3. 

^  *  '         '  ^  ^     r  o  23o  Mass.  1*1. 


2666 


LIMITATION   OF  ACTIONS. 


[Chap.  260. 


as  trustee,  guardian  or  conservator,  shall  be  brought  within  two  years,  5 
after  the  right  of  action  accrues;  provided,  that  this  section  shall  not  6 
apply  to  actions  upon  probate  bonds,  or  to  actions  in  favor  of  the  estate  7 
of  which  such  person  shall  have  been  such  legal  representative,  or  to  8 
actions  in  favor  of  a  beneficiary  or  ward,  or  to  actions  brought  by  the  9 
commonwealth.  10 


Extension  of 
time  in  case 
of  fraudulent 
Concealment. 
R.S.  120,  §  12 
G.S.  155,  §  12 
P.S.  197,  §  14. 
R.  L.  202,  §  11 
3  Pick.  74. 


Section  12.  If  a  person  liable  to  a  personal  action  fraudulently  con- 
ceals the  cause  of  such  action  from  the  knowledge  of  the  person  entitled 
to  bring  it,  the  period  prior  to  the  discovery  of  his  cause  of  action  by  the 
person  so  entitled  shall  be  excluded  in  determining  the  time  limited  for 
the  commencement  of  the  action. 


9  Pick.  212. 

4  Cush.  208. 

5  Allen,  130. 
118  Mass.  147. 
134  Mass.  372. 


138  Mass.  570. 

144  Mass.  313. 

145  Mass.  484. 
1G2  Mass.  412. 
178  Mass.  397. 


180  Mass.  334. 
201  Mass.  242,  602. 
203  Mass.  159. 
210  Mass.  35. 
222  Mass.  147. 


Acknowledg- 
ment or  new 
promise. 
1834,  182,  §  1. 
R.  S.  120,  §  13. 
G.  S.  153,  §  13. 
P.  S.  197,  §  1.5. 
R.  L.  202,  §  12. 
13  Pick.  206. 


Section  13.  No  acknowledgment  or  promise  shall  be  evidence  of  a 
new  or  continuing  contract  whereby  to  take  an  action  of  contract  out  of 
the  operation  of  this  chapter  or  to  depri\'e  a  party  of  the  benefit  thereof, 
unless  such  acknowledgment  or  promise  has  been  made  by,  or  is  contained 
in,  a  writing  signed  by  the  party  chargeable  thereby.      22  Pick.  291. 


1  Met.  394. 

8  Met.  432. 

9  Met.  482. 
3  Cush.  355. 
6  Cush.  151. 


7  Grav,  274,387. 
116  iSiass.  529. 

136  Mass.  326. 

137  Mass.  604. 
159  Mass.  245,248. 


168  Mass.  133,  134,  249. 
177  Mass.  321. 
17S  Mass.  417. 
222  Mass.  314. 
233  Mass.  591. 


Effect  of  part 
payment. 
1834,  182, 
§§  1.3. 

R.  S.  120,  §  17. 
G.  S.  155,  §  17. 
P.  S.  197,  §  16. 
R.  L.  202,  §  13. 
2  Met.  168. 
6  Met.  553. 

8  Met.  352. 

9  Met.  482. 
6  Cush.  172. 


Section  14.  The  preceding  section  shall  not  alter  or  impair  the 
effect  of  a  payment  of  principal  or  interest  made  by  any  person ;  but  no 
endorsement  or  memorandum  of  any  such  payment,  written  or  made 
upon  a  promissory  note,  bill  of  exchange  or  other  writing  by  or  on  behalf 
of  the  party  to  whom  such  payment  has  been  or  purports  to  ha\e  been 
made,  shall  be  sufficient  proof  of  the  payment  to  take  the  case  out  of  the 
provisions  of  this  chapter.  7  Gray,  274,387. 


11  Allen,  523. 
97  Mass.  8. 
122  Mass.  558. 


123  Mass.  588. 

124  Mass.  174. 
130  Mass.  199. 


132  Mass.  30.  273. 
154  Mass.  472. 
178  Mass.  417. 


ISO  Mass.  27. 
197  Mass.  347. 
200  Mass.  599. 


Promise  or 
payment  by 
joint  con- 
tractor, etc. 
1834,  182,  §  1. 
R.  S.  120, 
S§  14. 18. 


Section  15.  A  joint  contractor  or  his  executor  or  administrator  shall 
not  lose  the  benefit  of  this  chapter  so  as  to  be  chargeable  by  reason  only 
of  an  acknowledgment  or  promise  made  or  signed,  or  by  reason  of  a  pay- 
ment made,  by  any  other  joint  contractor  or  his  executor  or  administrator. 


G.S.  155,  §  14. 
P.  S.  197,  §  17. 
R.  L.  202,  §  14. 


4  Pick.  382. 
14  Pick.  387. 
2  Allen,  245. 


123  Mass.  588. 
134  Mass.  567. 
156  Mass.  34. 


200  Mass.  599. 
235  Mass.  249. 


Section  16.     If,  in  actions  against  two  or  more  joint  contractors  or     1 


Judgment  in 
such  case. 

R ^1' I'o' 1 1.5    ^g^iiist  the  executor  or  administrator  of  a  joint  contractor,  it  appears 
G.  s.  155,'  §  15.  that  the  plaintiff  is  barred  by  this  chapter  as  to  one  or  more  of  such  con- 

P.  S.  197,  §  18.  .  .  . 

R.  L.  202, 1 15.  tractors,  but  is  entitled  to  recover  against  any  other  or  others  of  them  by 
virtue  of  a  new  acknowledgment  or  promise  or  otherwise,  judgment  shall 
be  given  for  the  plaintiff  as  to  the  defendants  against  whom  he  is  entitled 
to  recover,  and  for  the  defendants  not  liable. 


ment'°  ^'"'*'^  Section  17.  An  answer  in  abatement  alleging  the  non-joinder  of  a 
R 's'  ilo'  I K.  P^^^y  defendant  to  an  action  of  contract  shall  be  o^'e^^uled  if  it  appears, 
c'.  s.  155]  §  16.'  upon  issue  joined,  that  the  action  as  against  him  was  barred  by  limitation. 

p.  S.  197,  §  19.  R.  L.  202,  §  16. 


Ch.\P.  260.]  LIMITATION  OF  ACTIONS.  2667 

1  Section  18.     The  limitations  of  the  preceding  sections  of  this  chapter,  Actions  by 

2  and  of  section  thirty-two  so  far  as  applicable  to  personal  actions,  shall  R.TT2aT2o!' 

3  apply  to  actions  brought  by  or  for  the  commonwealth.  *^-  ^-  ^^^'  ^  ^®- 

p.  S.  197,  §  21.  R.  L.  202.  §  17.  1S9  Mass.  104.  2  Op.  A.  G.  502. 

1  Section  19.     If  a  special  provision  is  otherwise  made  relative  to  the  special 

2  limitation  of  any  action,  any  provision  of  this  chapter  inconsistent  there-  i^e^Mrrs. 

3  with  shall  not  apply.  irss,  12,  §  1. 

R.  S.  120,  §§  4,  23.  P.  S.  197.  §  22.  136  Mass.  564. 

G.  S.  155,  §  22.  R.  L.  202,  §  18.  199  Mass.  109. 

1  Section  20.     A  judgment  or  decree  of  a  court  of  record  of  the  United  P/esumption 

r»o  1?  7  piiii  1  t  .1  1  •    f^     t  ^^  satisfaction 

2  btates  or  oi  any  state  thereor  shall  be  presumed  to  be  paid  and  satisfied  of  judgment. 

3  at  the  expiration  of  twenty  years  after  it  was  rendered.  ■  ■      . 

G.  S.  155,  §  23.  22  Pick.  533.  173  Mass.  433. 

P.  S.  197.  §  23.  1.34  Mass.  353.  194  Mass.  244. 

R.  L.  202,  §  19.  136  Mass.  2S0. 

LIMIT.A.TION   OF   REAL   ACTIONS   AND   RIGHTS   OF  ENTRY. 

1  Section  21.     An  action  for  the  recovery  of  land  shall  be  commenced,  -Actions  for 

*'  rccovcrv  oi 

2  or  an  entry  made  thereon,  only  within  twenty  years  after  the  right  of  la^nd. 

3  action  or  of  entry  first  accrued,  or  within  twenty  years  after  the  demand-  isoji  75]  §  1. 

4  ant  or  the  person  making  the  entry,  or  those  under  whom  they  claim,  a',  s.  ill'.  1 1'. 

5  have  been  seized  or  possessed  of  the  premises,  except  as  hereinafter  r.  l.^202,V20. 

6  provided.  7  Met.  24.  S  Met.  87. 

156  Mass.  280.  172  Mass.  395.  198  Mass.  91.  229  Mass.  374. 

1  Section  22.     If  such  right  or  title  first  accrued  to  an  ancestor  or  when  the 

2  predecessor  of  the  person  who  brings  the  action  or  makes  the  entry,  or  to  begin' to^?un^ 

3  any  other  person  under  whom  he  claims,  the  twenty  years  shall  be  com-  §;  |;  {54;  |  f; 

4  puted  from  the  time  when  the  right  or  title  so  first  accrued.  ^- 1;  ^2*0^2'  \ li 

1  Section  23.     In  the  construction  of  sections  twenty-one  to  thirty-  Same  subject. 

2  one,  inclusive,  the  right  of  entry  or  of  action  to  recover  land  shall  be  held  §'.  i:  154;  §  3.' 

3  to  have  first  accrued  at  the  times,  respectively,  hereinafter  mentioned:    r.  l.^b.^m. 

4  First,  If  a  person  has  been  disseized,  at  the  time  of  such  disseisin.  iocush.241. 

14  Allen,  516.  110  Mass.  161.  119  Mass.  414.  178  Mass.  356,  524.  15  Gray,  322. 

5  Second,  If  he  claims  as  heir  or  devisee  of  a  person  who  at  his  death  was  i3o  Mass.  121. 

6  seized,  at  the  time  of  such  death;  but  if  a  tenancy  by  the  curtesy  or  other  235  Mass.  34s. 

7  estate  intervened  after  the  death  of  such  ancestor  or  devisor,  at  the  time 

8  when  such  intermediate  estate  expired  or  would  have  expired  by  its  own 

9  limitation. 

10  Third,  If  there  has  been  sucli  intermediate  estate  or  if  a  person  claims  9  Mass.  50s. 

11  under  a  remainder  or  reversion,  so  far  as  his  right  is  affected  by  the  limi-  iso  mIss.  297. 

12  tation  prescribed  in  said  sections,  at  the  time  when  the  intermediate 

13  or  precedent  estate  would  have  expired  by  its  own  limitation,  notwith- 

14  standing  any  forfeiture  thereof  for  which  he  might  have  entered  at  an 

15  earlier  time.     This  clause  shall  not  prevent  a  person  from  entering  if 

16  entitled  so  to  do  by  reason  of  any  forfeiture  or  breach  of  condition;  but 

17  in  such  case,  his  right  sliall  be  held  to  have  accrued  when  the  forfeiture 

18  was  incurred  or  the  condition  was  broken. 

19  Fourth,  In  all  cases  in  whicli  no  other  express  provision  is  made,  at  the  s  Met.  S7. 

20  time  when  the  claimant  or  the  person  under  whom  he  claims  first  became 

21  entitled  to  the  possession  of  the  premises  under  the  title  upon  which  the 

22  entry  or  the  action  is  founded. 


2668 


LIMITATION   OF   ACTIONS. 


[ClLAP.   260. 


Corporation 

sole. 

1828.  137,  §  1. 

R.  S.  119,  §  4. 

G.  S.  154,  §  4. 

P.S.  196,  5  4. 

R.  L.  202,  §  23. 


Section  24.     If  a  corporation  sole  is  disseized,  any  of  its  successors  1 

may  enter  upon  the  premises,  or  commence  an  action  for  the  recovery  2 

thereof,  M-ithin  five  years  after  the  death,  resignation  or  removal  of  the  3 

disseisee.  4 


Disabilities. 
1697,  22,  §  1. 
1786,  13,  §  4.  • 
R.  S.  119,  §  5. 
G.  S.  154,  §  5. 
P.S.  196,  §  5. 
R.  L.  202,  §  24. 
4  Mass.  182. 
16  Pick.  161. 


Section  25.  If,  when  such  right  of  entry  or  of  action  first  accrues, 
the  person  entitled  thereto  is  a  minor,  or  is  insane,  imprisoned  or  absent 
from  the  United  States,  he,  or  a  person  claiming  under  him,  may  make 
the  entry  or  commence  the  action  within  ten  years  after  such  disability 
is  removed. 

2  Allen,  306.  3  Allen,  328.  10  Allen,  557.  190  Mass.  449. 


Death  during 
disability. 
R.  S.  119,§  6. 
G.  S.  154,  §  6. 
P.S.  196,  §  6. 
R.  L.  202,  §  25. 


Section  26.  If  the  person  first  entitled  to  such  right  of  entry  or  of 
action  dies  while  under  any  of  the  disabilities  mentioned  in  the  preceding 
section  and  there  has  been  no  determination  of,  or  judgment  upon,  the 
title,  right  or  action  which  accrued  to  him,  the  entry  may  be  made  or 
the  action  commenced  by  his  heirs,  or  by  any  other  person  claiming 
under  him,  within  ten  years  after  his  death. 


Successive 
disabilities. 
R.  S.  119,  §  7. 
G.  S.  154,  §  7. 
P.  S.  196,  §  7. 
R.  L.  202,  I  26. 


Section  27.  If,  when  such  right  of  entry  or  of  action  first  accrues,  the 
person  entitled  thereto  is  under  any  of  such  disabilities  and  dies  without 
having  recovered  the  premises,  no  further  time  for  making  such  entry 
or  commencing  such  action  than  is  hereinbefore  prescribed  shall  be 
allowed  by  reason  of  the  disability  of  any  other  person. 


Requisites  of 
effectual  entry. 
R.  S.  119,  §  8. 
G.S.  154,5  8. 
P.S.  196,5  8. 
R.  L.  202,  5  27. 
2  Met.  583. 
8  Met.  599. 


Section  28.  No  person  shall  be  held  to  have  been  in  possession  of 
land  within  the  meaning  of  this  chapter  merely  by  reason  of  having  made 
an  entry  thereon,  unless  he  has  continued  in  open  and  peaceable  posses- 
sion thereof  for  one  year  next  after  such  entry  or  unless  an  action  has 
been  commenced  upon  such  entry  and  seisin  within  one  year  after  he 
was  ousted  or  dispossessed. 


Estates  tail. 
R.  S.  119,  §  9. 
G.  S.  154,5  9. 
P.  S.  196,  5  9. 
R.  L.  202,  5  28. 


Section  29.  If  the  right  of  entry  or  of  action  of  a  tenant  in  tail,  or 
of  a  person  entitled  to  a  remainder  in  tail,  is  barred  by  this  chapter, 
the  estate  tail  and  all  remainders  and  reversions  expectant  thereon  shall 
also  be  barred,  as  fully  as  they  might  have  been  by  a  conveyance  made 
by  the  tenant  in  tail  in  the  manner  provided  in  chapter  one  hundred  and 
eighty-tliree. 


Same  subject. 
R.  S.  119,  5  10. 
G.  S.  154,5  10. 
P.  S.  196,  §  10. 
R.  L.  202,  §  29. 


Section  30.  If  a  person  entitled  to  recover  land  as  a  tenant  in  tail  or 
as  a  remainderman  dies  before  the  expiration  of  the  period  hereinbefore 
limited  for  making  an  entry  or  commencing  an  action  therefor,  no  per- 
son claiming  any  estate  which  the  tenant  in  tail  or  remainderman  might 
have  barred  shall  make  an  entry  or  commence  an  action  to  recover 
such  land,  except  within  the  period  during  which  the  tenant  in  tail  or 
remainderman,  if  he  had  so  long  lived,  might  have  made  such  entry  or 
commenced  such  action. 


Actions  by  the 
commonwealtli. 
R.  S.  119,5  12. 
G.S.  154,5  12. 
1867,275. 
P.S.  196,5  11. 
1893,470.  5  4. 
R.  L.  202.  5  30. 
4  Mass.  622. 


Section  31.  No  action  for  the  recovery  of  land  shall  be  commenced 
by  or  in  behalf  of  the  commonwealth,  except  within  twenty  years  after  its 
right  or  title  thereto  first  accrued,  or  within  twenty  years  after  it  or 
those  under  whom  it  claims  have  been  seized  or  possessed  of  the  premises; 
but  this  section  shall  not  apply  to  the  province  lands  in  the  town  of 


Chap.  260.]  limitation  of  actions.  2669 

6  Provincetown  lying  north  and  west  of  the  line  fixed  by  section  twenty-  9  Met.  iss. 

7  five  of  chapter  ninety-one,  to  the  Back  Bay  lands,  so  called,  in  Boston,  152  Mass.  444. 

8  or  to  any  property,  right,  title  or  interest  of  the  commonwealth  below  Iss  Mass!  los! 

9  liigh  water  mark  or  in  the  great  ponds. 

204  Mass.  173.  236  Mass.  S7.  1  Op.  A.  G.  53. 

proceedings  upon  failure  of  original  action. 

1  Section  32.     If,  in  an  action  duly  commenced  within  the  time  limited  Jiml°n  case^of 

2  in  this  chapter,  the  writ  fails  of  a  sufficient  service  or  return  by  reason  of  lyyj^^'^g's  3 

3  an  unavoidable  accident  or  of  a  default  or  neglect  of  the  officer  to  whom  J^l'ifg^^ij. 

4  it  is  committed,  or  if  the  writ  is  abated  or  if  the  action  is  otherwise  avoided  i-'o,  §  11.' 

5  or  defeated  by  the  death  of  a  party  thereto  or  for  any  matter  of  form,  155,  §  11! 

6  or  if,  after  a  verdict  for  the  plaintiff  or  demandant,  the  judgment  is  igyi/il'.    ^  ' 

7  arrested,  or  if  a  judgment  for  the  plaintiff  or  demandant  is  reversed,  the  fg  Me^t°^i5^  ^^' 

8  plaintiff  or  demandant  or  any  person  claiming  under  him  may  commence  ^  g^*;  H^ 

9  a  new  action  for  the  same  cause  within  one  year  after  the  abatement  or  L^^"^'  '^5„» 

..  „,  ...."^p  I       c      ^       '2"  Mass.  419. 

10  other  determination  of  the  original  action,  or  after  the  reversal  of  the  i"4  Mass.  i7i. 

11  judgment;   and  if  the  cause  of  action  by  law  survives,  the  executor  or  loo  Mass!  513'. 

12  administrator  of  the  plaintiff  or  the  heir  or  devisee  of  the  demandant  may 

13  commence  such  new  action  within  said  year. 

REFERENCES. 

Effect  on  statute  of  limitations  of  absence  from  the  commonwealth  while  engaged 
in  military  or  naval  service  of  the  United  States,  1917,  342,  §  17. 

Limit  of  time  for  bringing  petitions  for  damages  caused  by  taking  property  by 
eminent  domain.  Chap.  79,  §§  16-19. 

Limit  of  time  for  bringing  action  on  claimant's  bond  in  trustee  process,  Chap. 
246,  §  67. 

Limit  of  tune  for  bringing  action  on  replevin  bond.  Chap.  247,  §  18. 


2670 


COSTS  IN   CI\'IL   ACTIONS. 


[Chap.  261. 


TITLE   VI. 

COSTS   AND   FEES. 

Chapter  261.     Costs  in  Civil  Actions. 
Chapter  262.     Fees  of  Certain  Officers. 


CHAPTER    261. 

COSTS  IN  CIVIL  ACTION'S. 


Sect. 

1.  Prevailing  party  to  recover  costs. 

2.  Costs  if  defendant  insolvent. 

3.  Costs  on  appeals  from  district  courts, 

etc. 

4.  Costs  in  superior  court. 

5.  Costs  if  defendant  brings  money  into 

court. 

6.  Costs  in  real  actions  and  in  reple\'in. 

7.  Costs  in  unnecessary  actions. 

8.  Costs  in  cases  tried  together. 

9.  Costs   if   plaintiff   prevails   on   certain 
■    counts  only. 

10.  Second  action  for  same  cause  stayed, 

when. 

11.  Taxation  of  double  or  treble  costs. 

12.  Costs  in  suits  for  discovery. 

13.  Costs  in  discretion  of  court,  when. 

14.  Costs  in  actions  by  the  commonwealth. 

15.  Costs  in  such  actions  brought  in  behalf 

of  private  person. 


Sect. 

16.  Judgments  for  costs  against  the  com- 

monwealth. 

17.  No  travel  for  attorney  general. 

18.  Powers  of  arbitrators  and  courts. 

19.  By  whom  costs  shall  be  taxed;    notice, 

etc. 

20.  Appeal  from  taxation. 

21.  Costs,  execution  for,  pending  appeal. 

22.  Costs    of    such    appeal,    allowance    of, 

etc. 

23.  Items    of    costs    in    supreme    judicial 

court  and  superior  court. 

24.  Costs  when  place  for  trial  is  designated. 

25.  Expenses  of  printing  briefs. 

26.  Items  of  costs  in  district  courts. 

27.  Costs,  items  of,  in  actions  by  trustee 

process  in  district  courts. 

28.  Computation  of  travel  in   favor  of  a 

corporation. 


Prevailing 
party  to 
recover  costs. 
17S4,  2S.  §  9. 


Section  1.     In  ci\il  actions  the  prevailing  party  shall  recover  his     1 
costs,  except  as  otherwise  provided. 


G.  S.  156,  §  1. 
p.  S.  198,  §  1. 
R.  L.  203,  §  1. 

7  Met.  590. 

8  Met.  272,  343. 
2  Gush.  325. 


4  Gray,  201. 
1  Allen,  212. 
3  Allen,  467,  468. 

102  Mass.  116. 

103  Mass.  680. 

126  Mass.  232,  287,  290. 


R.S.  121,  §1. 

129  Mass.  135. 
1.39  Mass.  210. 
143  Mass.  192. 
187  Mass.  421. 
208  Mass.  195. 
232  Mass.  124. 


Cost.s  if  defend- 
ant insolvent. 
1841,  124,  §  4. 
1843,  55. 
1848,  267. 
G.  S.  156, 
§§  2,  3. 
P.  S.  198, 
§§  2,  3. 

K.  L.  203.  §  2. 
4  Cush.  500. 

Costs  on  ap- 
peals from 
district  courts, 
etc. 


Section  2.  If  a  discontinuance  or  a  nonsuit  is  entered  in  an  action 
solely  in  consequence  of  an  answer  of  the  defendant  which  alleges  his 
discharge  in  bankruptcy  or  insoh'ency,  the  defendant  shall  reco\'er  no 
costs.  If  issue  is  joined  upon  such  defence  solely  and  judgment  is  ren- 
dered for  the  defendant,  he  shall  recover  only  his  costs  accruing  after 
the  joinder  of  such  issue. 


Section  3.     If,  in  a  civil  action  before  a  district  court,  the  plaintiff     1 
appeals  from  a  judgment  in  his  favor  or  if  the  defendant  appeals  from    2 


Chap.  261.]  costs  in  cuil  actions.  2671 

3  a  judgment  in  his  favor  upon  a  demand  in  set-off  and  does  not  recover  i825,  92. 

4  in  the  superior  court  a  greater  amount  for  debt  or  damages  than  he  g'  si  iSe!  §  4. 

5  recovered  by  the  first  judgment,  he  shall  recover  no  costs  arising  after  p^"'i98%\^' 

6  the  appeal,  and  shall  pay  the  costs  of  the  appellee  arising  after  the  appeal.  J^j^-  32I;  ^  ^• 

1  Section  4.     If,  in  a  personal  action,  except  an  action  of  replevin  or  an  Costs  in 

2  action  under  section  fifteen  of  chapter  two  hundred  and  fifty-three,  mo^T^rs." 

3  which  is  commenced  in  the  superior  court,  the  plaintiff  does  not  recover  17S676'2^'§^3^' 

4  final  judgment  for  more  than  twenty  dollars  as  damages,  he  shall  recover  ^°^-  'If;  ^  ^• 

5  no  costs,  unless  the  right  to  an  easement  or  the  title  to  land  is  dra'wn  in  ||g3.  ii,-.     ^ 

6  question  and  the  justice  before  whom  the  action  is  tried  so  certifies,  or  g.  s.'  ise! 

7  unless  the  plaintifi"s  claim,  as  established  on  the  trial,  exceeds  twenty  1S62',  s'e. 

8  dollars  and  is  reduced  to  that  amount  or  less  by  set-offs  which  could  not  §§  5^7.  ' 

9  have  been  proved  in  payment. 

R.  L.  203,  §  5.  1  Gray,  625.  10  Allen,  68. 

13  Met.  144.  2  Gray,  336.  11  Allen,  352. 

2  Gush.  325.  11  Gray,  486.  100  Mass.  191. 

6  Gush.  275.  2  Allen.  26S.  133  Mass.  470. 

8  Cush.  280.  4  Allen,  400.  134  Mass.  14. 

12  Cush.  457.  6  .Ulen.  243.  192  Mass.  600. 

1  Section  5.     If  a  defendant  brings  money  into  court  and  offers  it  in  Costs  if  defend- 

2  satisfaction  of  the  damages,  the  plaintiff  shall  in  all  cases  recover  the  costs  money  mto 

3  which  had  previously  accrued.  '^°"'' 

R.  S.  121.  §  14.  G.  S.  156.  §  S.  P.  S.  19S,  §  9.  R.  L.  203,  §  6. 

1  Section  6.     The  prevailing  party  in  a  real  action  or  in  ^eple^'in  shall  ^  "tlonsVnd'in 

2  recover  costs  irrespective  of  the  amount  of  damages  recovered.  replevin. 

R.S.  121,513.  G.  S.  156,  §9.  P.  S.  198,  §  10.  R.  L.  203,  §  7. 

1  Section  7.    A  plaintiff  who  brings  several  actions  in  the  same  or  in  Costs  in  unnec- 

2  different  courts  against  the  same  defendant  upon  causes  of  action  which  i7«-4^23!"^' 

3  might  have  been  joined  in  one  action,  or  who  brings  separate  actions  R.^s.'ili.V^s. 

4  against  defendants  who  might  have  been  joined,  shall  recover  costs  in  f879'.  226, 1 2°' 

5  one  action  only,  unless  the  court,  after  a  hearing,  otherwise  orders.  g- 1;  i^o^- 1  ii- 

10  Cush.  303. 

1  Section  8.     If  two  or  more  cases  are  tried  together  in  the  supreme  Costs  in  cases 

2  judicial  court,  in  the  superior  court  or  in  a  district  court,  the  presiding  1892, 231. 

3  justice  may  reduce  the  -sxitness  fees  and  other  costs;  but  not  less  than  the  fss^Sls'. lei 

4  ordinary  witness  fees  and  other  costs  recoverable  in  one  of  the  cases  which  ?^|  J^J*^^;  ||J; 

5  are  so  tried  together  shall  be  allowed. 

1  Section  9.     If  a  verdict  is  rendered  for  the  plaintiff  upon  one  or  more  Costs  if  piain- 

2  counts  upon  several  and  distinct  causes  of  action,  and  for  the  defendant  certaln^unts' 

3  upon  any  others,  each  party  shall  recover  costs  for  the  travel  and  attend-  r"'!;  121. 5  le. 

4  ance  of  witnesses,  for  depositions  and  for  other  e\ndence  produced,  ex-  pi;lii;}il' 

5  amined  or  used  on  the  trial  of  the  counts  upon  which  the  verdict  is  in  his  f  ■^J'et^M'i^  ^°' 
G  favor,  but  shall  not  recover  for  the  like  charges  incurred  on  the  trial  of  2  Met.  509. 

7  the  other  counts.  13  Met.  436. 

2  Cush.  ISO.  4  Cush.  148.  ITO  Mass.  162.  222  Mass.  581. 

1  Section  10.     If  a  judgment  for  costs  upon  a  nonsuit  or  discontinuance  Second  action 

2  remains  unsatisfied,  the  court  in  which  a  subsequent  action  for  the  same  stayed,  when. 

3  cause  is  brought  may  order  proceedings  therein  to  be  stayed  until  such  r*1.'  Jff;  |  ft. 

4  costs  have  been  paid,  and  may  further  order  that  the  action  be  dismissed  p.l./gs,'!/!.' 

5  unless  they  are  paid  within  a  time  fixed  by  the  order.  ^-  ^-  ^"^^  *  "• 


2672 


COSTS  IN   CniL  ACTIONS. 


[Chap.  261. 


doubfe°OT°^  Section  11.     If  double  or  treble  costs  are  allowed,  the  witness  fees,  1 

isfJ'^iol'^s  1    ^^^  costs  of  taking  depositions,  of  procuring  evidence  and  of  copies  and  all  2 

K- s  i2i'  1 18.  court  dues,  shall  be  taxed  and  recovered  singly,  and  the  remainder  only  3 

*^  *  ^*  ±oK)f  ^  itS.  ni  IT  1111  1  111  111 


p.'s.'  198,'  §  li.  of  the  taxable  costs  shall  be  doubled  or  trebled. 


R.  L.  203,  §  12. 


Costa  in  suits 
for  discovery. 
1841,  129. 
G.  S.  156,  §  15. 
P.  S.  198,  §  16. 
R.  L.  203,  §  13. 
1  Met.  237. 
225  Mass.  500. 


Section  12.  In  suits  in  equity  in  which,  as  to  one  or  more  of  the 
defendants,  the  plaintiff  seeks  merely  for  a  discovery  of  facts  which  are 
material  to  his  rights  and  interests  in  a  pending  or  anticipated  suit,  and 
not  for  a  decree  against  them,  the  court  shall  allow  such  defendants  all 
their  reasonable  costs  and  expenditures,  according  to  the  usual  course  of 
proceedings  in  equity  in  like  cases,  and  likewise  although  the  plaintiff 
prays  for  a  decree,  if  the  court  is  satisfied  that  the  prayer  is  frivolous,  a 
mere  pretence,  or  is  not  essentially  connected  with  the  subject  matter  of 
the  discovery. 


?retion°oP  Section  1.3.     In  suits  iu  equity  and  in  other  civil  actions  and  pro-  1 

i82?'i09''?'5  ceedings  in  which  no  provision  is  expressly  made  by  law,  the  costs  shall  2 

S-  i' }f i'  i  t'?-  be  wholly  in  the  discretion  of  the  court,  but  no  greater  amount  shall  be  3 

U.  b.  15b,  §  l(i.  11',  .11  1I»-*1T  •  *  1 

p.  s,  198,  §  17.  taxed  therein  than  is  allowed  tor  similar  charges  in  actions  at  law.  4 


R.  L.  203,  §  14. 
1  Allen,  212. 
103  Mass.  SO. 


104  Mass.  363. 
126  Mass.  290. 
206  Mass.  28. 


214  Mass.  121. 
223  Mass.  325. 


by^'he'com-'""^  Section  14.  In  civil  actions  and  in  proceedings  which  are  instituted 
monweaith  by.  Or  iu  the  name  of,  the  commonwealth,  and  not  at  the  relation,  in 
p' I' 198 '111'  behalf,  or  for  the  use,  of  a  private  person,  the  commonwealth  shall  be 
R.  L.  203,  §  15.  liable  for  costs  as  is  an  individual.  4  Gray,  25. 

actioni"hrought  SECTION  15.  A  private  person  at  whose  relation,  for  whose  use  or  1 
in  behalf  of       j^  whose  bchalf  an  action  or  proceeding  is  commenced  in  the  name  of  the    2 

private  person.  *^  iiiiii'iip 

R.  s.  121, 1 23.  commonwealth  or  or  the  attorney  general  shall  be  liable  tor  costs,  as  if  3 
p.'  s.'  198,'  §  19.'  it  had  been  begun  in  his  own  name.  R.  l.  203,  §  16.  4 

cos'tlllgainst"'^  SECTION  16.  If  a  judgment  for  costs  is  rendered  against  the  com- 
weafth"™"""  monweaith,  the  treasurer  of  the  county  to  which  the  costs  in  such  case 
G  s'  156'  1 19'  ''^ould  have  been  paid  had  the  judgment  been  in  favor  of  the  common- 
1862,  i4.i'.  wealth  shall  pay  it  upon  the  production  of  an  attested  copy  thereof; 
R.  L.  203,  §  17.  but  if  the  costs  would  have  been  paid  to  the  commonwealth  had  the 
judgment  been  in  favor  of  the  commonwealth,  the  state  treasurer  shall 
pay  it  upon  the  production  of  an  attested  copy  thereof. 

auoTney^'°'^  SECTION  17.  If  costs  are  taxed  for  the  commonwealth,  no  fees  shall  1 
i8i"'i82  § ''  be  taxed  or  allowed  for  the  travel  of  the  attorney  general  or  any  at-  2 
R  s.  121,  §  25.  torney  for  the  commonwealth.  3 

C.S.  156,  §20.  P.  S.  198,  §21.  R.  L.  203,  §  IS. 


Powers  of 
arbitrators 
and  courts, 
1786,  52,  §  3. 
R.  S.  121, 
§§21,26. 
G.  S.  15S,  §  21. 
P.  S.  198,  §  22. 
R.  L.  203,  §  19. 


Section  18.  This  chapter  shall  not  affect  the  power  of  arbitrators 
or  referees  to  award  costs;  nor  the  power  of  a  court  to  require  costs  to 
be  paid  by  either  party  as  the  condition  of  an  amendment,  continuance 
or  other  order  which  is  passed  upon  his  motion,  or  to  withhold  and 
refuse  costs  on  like  occasions. 

2  Gush.  325.  8  Allen,  431.  103  Mass.  580.  108  Mass.  232. 


Section  19.     Costs  shall  be  taxed  bv  the  clerk  of  the  court.     No  costs     1 


By  whom  costs 
shall  be  taxed; 

i72s^9,^2?'|  1.    shall  be  taxed  without  notice  to  an  adverse  party  who  gives  seasonable    2 


Chap.  261.]  costs  in  cmL  actions.  2673 

3  notice  in  -^Titing  to  the  clerk  of  his  desire  to  be  present  at  the  taxation  i829, 52.  §  1. 

4  or  causes  such  notice  to  be  entered  on  the  docket.    Notice  given  by  or  a,  f;  \il[  |  H; 

5  to  the  attorney  in  the  action  shall  be  equivalent  to  notice  by  or  to  the  r. l. 203,|2o. 

6  party.  1917,  326.  9  Met.  3I6.  6  AUen,  514. 

1  Section  20.     Either  party  may  appeal  from  the  taxation  by  the  clerk  Appeal  from 

2  to  the  court  in  which  the  action  is  pending,  or  to  a  justice  thereof.  illg!'^;  §  i. 

R.  S.  121.  §  28.  R.  L.  203,  §  21.  1  Gray.  420. 

G.  S.  156.  §  23.  8  Gush.  236.  104  Mass.  363. 

P.  S.  198,  §  24. 

1  Section  21.     If  the  appellant  is  liable  for  the  costs,  the  appellee  Costs,  execu- 

2  may  take  out  execution  and  cause  it  to  be  satisfied,  if  he  first  gives  Ing^ppear^' 

3  bond  with  sufficient  surety,  who  shall  be  approved  by  the  clerk,  in  a  R~s.'m,V30. 

4  sum  equal  to  the  costs,  payable  to  the  appellant,  conditioned  to  repay  p|ing'|||- 

5  such  part  of  the  costs  as  may  be  disallowed  upon  the  appeal,  and  to  R- L- 203,  §  22. 

6  perform  such  other  order  as  the  court  or  justice  shall  make  thereon. 

1  Section  22.     The  costs  incurred  by  the  appeal  may  be  allowed  to  Costs  of  such 

2  either  party  by  the  court  or  justice  before  whom  such  appeal  is  heard,  an?eof.''et"''" 

3  and  they  may  be  added  to  or  deducted  from  the  costs  awarded  in  the  K'l.'m.Vsi- 

4  principal  action  or  may  be  collected  upon  a  separate  execution.  p- 1-  j^||'  1 1^- 

R.  L.  203,  §  23.  126  Mass.  287.  15S  Mass.  274. 

102  Mass,  IIB.  135  Mass.  570.  174  Mass.  67. 

1  Section  23.     There  shall  be  allowed,  in  a  ci^■il  action  in  the  supreme  items  of  costs 

2  judicial  court  or  in  the  superior  court,  in  addition  to  other  disbiu-se- dictaUourVa^id 

3  ments  allowed  by  law,  the  following  costs:  T7oi-2,''7^,T3'.' 

4  For  the  entry  fee,  three  dollars.  }||5'  If  ,  j 

5  For  the  declaration,  fifty  cents.  R-  s.  i2i, 

6  For  an  attorney's  fee,  if  an  issue  in  law  or  fact  is  joined,  two  dollars  i842T67.' 

7  and  fifty  cents;   if  not,  one  dollar  and  twenty-fi\e  cents.  §1^8."    ' 

8  For  a  term  fee,  five  dollars  for  each  sitting  while  the  action  is  pending,  HU', III'.  §  ¥.' 

9  not  exceeding  three  sittings,  except  by  an  order  of  the  coiu-t.     If  an  G.^i'.ite.izv. 

10  action  or  question  of  law  therein  is  carried  to  the  full  court,  two  ad-  j.^'g 'i^'^g^s 23 

11  ditional  term  fees  may  be  allowed.    If  the  defendant  is  defaulted  with-  if%?fii'l79. 

12  out  having  appeared,  only  one  term  fee  shall  be  allowed.  263,  §  24.' 

13  For  travel,  except  to  carry  to,  or  to  take  from  the  clerk's  office  any  leor.iy,  237. 

14  writ  or  process,  thirty-three  cents  for  every  ten  miles,  not  exceeding  137  Mass!  lis. 

15  eighty  miles  out  and  home,  unless  the  party,  his  agent  or  attorney  ^"^  ^'''*^'  '^' 

16  actually  travels  more  than  forty  miles  for  the  express  purpose  of  at- 

17  tending  the  court  in  such  cause.    In  such  case,  allowance  may  be  made, 
IS  in   the   discretion   of   the   court,    according   to   the   distance   actually 

19  traveled. 

20  If  the  defendant  was  arrested  on  mesne  process,  and  the   plaintiff 

21  shall  recover  more  than  twenty  dollars,  exclusive  of  costs,  the  plaintiff 

22  shall  have  taxed  in  his  costs  against  the  defendant  the  costs  paid  by 

23  the  jjlaintiff  upon  and  after  the  arrest  and  all  lawful  charges  paid  by 

24  him  for  the  defendant's  support  in  jail. 

25  If  the  defendant  was  arrested  on  mesne  process  and  final  judgment 

26  is  rendered  in  his  favor,  he  shall  have  taxed  in  his  costs  against  the 

27  plaintiff  all  costs  paid  by  the  defendant  on  account  of  the  arrest. 

1  Section  24.     If  the  shire  town  where  a  case  shall  be  tried  has  been  Costs  when 

2  designated  under  section  eighty-two  of  chapter  two  hundred  and  thirty-  fj  designated! 


2674 


COSTS  IN  CIVIL  ACTIONS. 


[Chap.  261. 


1SS2, 264.  §  2^    one,  no  costs  shall  be  allowed  for  sittings  held  in  any  other  town  unless     3 

R.  L.  203,  §  2o.  ^j_jg  action  is  actually  tried  in  such  other  town  by  agreement  of  the    4 

parties.  5 


Expenses  of 

printing  briefs. 

1865, 

33. 

P.  S. 

198, 

§29. 

R.  L. 

203, 

§26. 

ia04. 

413. 

Item; 

3  of  costs 

in  district 

courts. 

1786, 

73. 

1795, 

41,; 

§1. 

R.  S. 

121, 

§§32 

:-34, 

36. 

G.  S. 

156. 

§27. 

1870, 

151, 

§3. 

1876, 

227, 

§5. 

P.S. 

198, 

§30. 

R.L. 

168, 

§79; 

203,  ( 

§27. 

1917, 

326. 

Section  25.  The  prevailing  party  shall  be  allowed  such  sum,  not 
exceeding  twenty-fi\'e  dollars,  as  the  court  considers  reasonable,  for 
expenses  actually  incm-red  in  printing  the  briefs  which  may  be  re- 
quired for  the  argument  of  the  case  at  the  law  sitting  of  the  supreme 
judicial  court. 


1 
2 

3 

4 
5 
6 
7 
8 
9 
10 


Section  26^  There  shall  be  allowed,  in  a  civil  action  in  a  district 
court,  except  actions  by  the  trustee  process,  in  addition  to  other  dis- 
bursements allowed  by  law,  the  following  costs: 

To  the  plaintiff  or  complainant,  — 

For  a  writ  and  declaration,  petition  or  complaint,  one  dollar. 

For  an  attorney's  fee,  if  there  is  an  appearance  for  the  defendant, 
two  dollars  and  fifty  cents;  if  not,  one  dollar  and  twenty-five  cents. 

For  a  term  fee,  three  dollars,  if  there  is  an  appearance  for  the  de- 
fendant; and  if  not,  one  dollar. 

For  travel,  the  fees  allowed  therefor  by  section  twenty-three. 

For  attendance,  thirty-three  cents  for  each  day's  actual  attendance  11 
by  him  or  his  attorney;  but  not  for  more  tlian  tliree  days'  attendance,  12 
if  the  defendant  is  defaulted  without  haA-ing  appeared,  or  for  attendance  13 
after  the  day  on  which  the  action  is  finally  disposed  of  for  the  sitting,  14 
which  day  shall  be  entered  on  the  docket.  15 

If  the  defendant  was  arrested  on  mesne  process,  and  the  plaintiff  16 
shall  recover  more  than  twenty  dollars,  exclusive  of  costs,  the  costs  17 
paid  by  him  upon  and  after  the  arrest  and  all  lawful  charges  paid  by  18 
him  for  the  defendant's  support  in  jail.  19 

To  the  defendant,  —  20 

For  travel,  the  fees  allowed  therefor  by  section  twenty-three.  21 

For  attendance,  thirty-three  cents  for  each  day's  attendance  by  him  22 
or  his  attorney;  but  not  for  attendance  after  the  day  on  which  the  23 
action  is  finally  disposed  of  for  the  sitting,  which  day  shall  be  entered  24 
on  the  docket.  25 

For  a  term  fee,  three  dollars.  26 

For  an  attorney's  fee,  two  dollars  and  fifty  cents.  27 

If  the  defendant  was  arrested  on  mesne  process  and  final  judgment  is  28 
rendered  in  his  favor,  he  shall  have  taxed  in  his  costs  against  the  plaintiff  29 
all  costs  paid  by  the  defendant  on  account  of  the  arrest.  30 


Items  of  costs 
in  actions  by 
trustee  process 
in  distnct 
courts. 

G.  S.  156,  §  27. 
1877,  177,  §  1. 
P.  S.  198,  §  31. 
R.  L.  203,  §  2S. 
1917,  320. 


Section  27.  There  shall  be  allowed,  in  an  action  by  the  trustee 
process  in  a  district  court,  in  addition  to  the  other  disbursements 
allowed  by  law,  the  following  costs: 

To  the  plaintiff,  — 

For  a  writ  and  declaration,  one  dollar. 

For  an  attorney's  fee,  one  dollar  and  fifty  cents. 

For  a  term  fee,  if  there  is  an  appearance,  one  dollar;  and  if  not, 
seventy-five  cents. 

For  travel  and  attendance,  the  same  fees  as  are  allowed  to  a  plaintiff 
by  the  preceding  section. 

To  the  defendant,  — 

For  an  attorney's  fee,  one  dollar  and  fifty  cents. 


1 
2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 


Chap.  262.] 


FEES   OF   CERTAIN   OFFICERS. 


2675 


13  For  travel  and  attendance,  the  same  fees  as  are  allowed  to  a  de- 

14  fendant  by  the  preceding  section. 

15  To  the  trustee,  — 

16  For  an  attorney's  fee,  fifty  cents. 

17  For  an  answer  in  writing,  twenty-five  cents. 

18  For  travel  and  attendance,  the  same  fees  as  are  allowed  to  a  defendant 

19  by  the  preceding  section. 

20  For  an  answer  to  interrogatories,  such  costs  as  the  coiu-t  may  allow. 

21  To  an  adverse  claimant,  — 

22  Such  costs  as  the  court  may  allow. 

1  Section  28.     If  a  corporation  is  entitled  to  costs,  travel  shall  be  Computation  of 

2  computed  from  the  town  where  the  corporation  is  situated,  if  it  is  in  oracorpor™'^ 

3  its  nature  local;   otherwise,  from  the  town  where  its  business  is  chiefly  r°s.  121,  §35. 

4  or  commonly  transacted. 

G.  S.  156,  §  2S.  P.  S.  198,  §  33.  R.  L.  203,  I  30. 

REFERENCES. 

Briefs,  costs  and  expenses  of,  in  Boston  municipal  court,  Chap.  231,  §  109. 
Costs  in  grade  crossing  proceedings,  Chap.  159,  §  66. 


CHAPTER    262. 

FEES  OF   CERTAIN   OFFICERS. 


Sect. 

justices  op  the  peace. 

1.  Justices  of  the  peace. 

DISTRICT    COUHTS. 

2.  District  courts. 

3.  Special  justices. 

CLERKS    OF    COURTS. 

4.  Clerks  of  courts. 
6.  Copies. 

6.  Additional  fees  for  record  of  judgment. 

7.  Fees  collected  in  advance. 

SHERIFFS,    DEPUTY    SHERIFFS    AND     CONSTA- 
BLES. 

8.  Sheriffs,  etc. 

9.  Processes  returned  by  m.iil,  etc. 

10.  Use  of  horse  and  carriage,  etc. 

11.  Leaving  copy  of  writ,  etc. 

12.  Deputy    sheriff    for   attendance    upon 

county  commissioners. 

Serving  precepts  for  elections,  etc. 

In  poor  debtor  proceedings. 

Copies  of  writs,  etc. 

Service  of  process  issued  by  land  court. 

Service  of  execution  of  ejectment,  etc. 

Officer  to  specify  items  if  required. 

Endorsement  of  fees  on  writ.     Certifi- 
cate of  use  of  horse  and  carriage. 


Sect. 

20.  Making  search  for  person,  etc.,  named 

in  writ,  etc. 

21.  Allowance  of  expense  in  criminal  cases. 

22.  Attendance  upon  certain  courts. 

MAGISTRATES. 

23.  Examination  of  sureties,  etc. 

24.  Certain  bail  fees  limited. 

JURORS,    WITNESSES,    APPRAISERS,    COMMIS- 
SIONERS,   ETC. 

25.  Jurors'  fees,  etc. 

26.  Service  of  process  relative  to  inquests. 

27.  Officer   in    cases    against   juvenile   of- 

fenders. 

28.  Arrests  for  drunkenness. 

29.  Witness  fees. 

30.  Witnesses  held  in  jail. 

31.  Appraisers,  etc. 

32.  Interpreters,  and  witnesses  from  with- 

out the  commonwealth. 

33.  W'itnesses   in   neglect   and    delinquent 

cases. 


TOWN    CLERKS. 


34.  Fees. 


FOR    MARHIAOES. 

35.  Marriages. 


2676 


FEES   OF  CERTAIN   OFFICERS. 


[Chap.  262. 


Sect. 


STATE    SECRETARY. 


36.  State  secretary. 

37.  Examination  of  the  records,  etc. 

REGISTERS    OF    DEEDS. 

38.  Registers  of  deeds. 

L-IND    COURT. 

39.  Certain  fees  of  land  court. 

REGISTERS    OF    PR0B.\TE    AXD    INSOLVEXCT. 

40.  Registers  of  probate  and  insolvency. 

NOTARIES    PUBLIC. 

41.  Notaries  public. 

COMMISSIONERS    IN    OTHER    STATES. 

42.  Commissioners  in  other  states,  etc. 

GENERAL    PROVISIONS. 

43.  Cases  not  specified. 

44.  Copies. 

45.  "Page"  defined. 

46.  List   of   fees   to   be   posted   in   public 

offices. 


Sect. 

47.  Return   of   expense   in    criminal   cases 

under  oath. 

48.  Single   fees   only   for   seirice,   etc.,   of 

processes  at  same  time. 

49.  No  fee  for  issuing  or  seizing  more  than 

one  mittimus,  etc. 

50.  Salaried  officers  not  to   be   paid  fees, 

except,  etc. 

51.  Fees  and  expenses  of  officers  in  criminal 

cases. 

52.  Pa^inent  of  fees  and  expenses. 

53.  Certain  officers. 

54.  Compensation  of  officers  for  attending 

superior  court  in  criminal  cases. 

55.  Railroad  police. 

56.  Certain  public  officers  not  entitled  to 

witness  fees,  etc. 

57.  Officers  may  be  allowed  expenses. 

58.  Penalty. 

59.  Witnesses*  fees  apportioned  in  certain 

cases. 

60.  Witnesses'  fees  to  be  refused  in  certain 

cases. 

61.  Officers  not  to  purchase  orders,  etc. 

62.  Penalty   for   false   certificates   of   wit- 

nesses, etc. 

63.  Refusal  of  fees  to  delinquent  magistrate. 

64.  Refusal  of  fees  to  complainant. 


Jufitices  of 
peace. 
1795,41,  § 
R.  S.  122, 
G.  S.  157, 
5U.2. 
1860,  191, 
1S66, 193. 
1879,254. 
P.  S.  199, 
R.  L.  204, 


the 

1. 
5  1. 


§1. 
§2. 

5  1. 

§1. 


District 
courts. 
1795,41,  §  1. 
R.  S.  122,  §  2. 
1SS3,  369. 
ISoo.  449,  §  14. 
1859,  241. 
G.  S.  157,  §  2. 
1870.  330.  §  2. 
1877,  177,  §  2; 
240. 

1879,  226,  §  1. 
P.  S.  199,  §  2. 


JUSTICES   OF   THE   PEACE. 

Section  1.    The  fees  of  justices  of  the  peace  shall  be  as  follows: 

For  a  subpcena  for  one  or  more  witnesses,  ten  cents. 

For  taking  a  deposition,  fifty  cents;  for  writing  the  deposition  and 
caption,  at  the  rate  of  twelve  cents  a  page;  for  notice  to  the  adverse 
party,  twenty  cents.  The  justice  shall  certify  his  fees  and  the  deponent's 
fees  on  the  deposition. 

For  administering  an  oath  required  by  law,  except  on  a  trial  or  exam- 
ination before  him,  to  one  or  more  persons  at  one  time,  twenty-five  cents. 

For  the  acknowledgment  of  a  deed  by  one  or  more  grantors,  if  taken 
at  one  time,  twenty-five  cents. 

For  issuing  a  warrant  under  section  tliirty-six  of  chapter  two  hun- 
dred and  eighteen,  one  dollar. 

For  taking  a  deposition  to  perpetuate  testimony,  each  justice  shall  13 
be  entitled  to  the  fees  prescribed  for  all  services  which  are  personally  14 
rendered  by  him.  15 

DISTRICT   COURTS. 

Section  2.    The  fees  of  district  courts  shall  be  as  follows: 

In  civil  actions,  — 

For  a  blank  writ  of  original  summons  or  attachment  and  summons, 
five  cents. 

For  the  entry  of  an  action,  or  for  the  filing  of  a  petition,  including 
filing  of  papers,  entering  up  and  recording  judgment,  one  dollar. 

For  each  order  of  notice  and  rule  of  reference,  fifty  cents. 

R.  L.  204,  §2.  1904,  350,  §1.  1909,186.  1913,  3S,  §  1. 


Special  jxisticea, 
1879,  254 


Section  3.     A  special  justice,  when  not  holding  court,  shall  be  paid     1 
R.L.2M,§3.    by  the  county  one  dollar  for  each  warrant  issued  by  him.  2 


Chap.  262.]  fees  of  certain  officers.  2677 


CLERKS   OF   COURTS. 

1  Section  4.     The  fees  of  clerks  of  courts  shall  be  as  follows:  cierks  of 

2  For  a  blank  writ  of  attachment  and  summons  or  an  original  summons,  1795'^ii  §  1 

3  five  cents  R  s.'  122.  §  2. 

o   ii\c  tei»LS.  1853,309. 

4  For  a  subpoena  for  one  or  more  witnesses,  ten  cents.  i^se,  246. 

5  For  a  venire  facias  for  jurors,  six  cents.  p.'s.'i99.'§  4.' 

6  For  a  writ  of  review  or  other  writ  in  civil  proceedings,  not  before  §§  3.' 5.   ' 

7  mentioned,  five  cents.  llfl'ino.'  ^  ~' 

8  For  entry  of  an  action  or  suit,  or  of  a  libel  for  divorce,  or  of  a  peti-  \lll]  |[: 

9  tion  in  the  supreme  judicial  or  superior  court  or  for  filing  a  petition  ilobVy^  §  3 
10  to  the  county  commissioners,  three  dollars,  which  shall  be  paid  by  the  fgo4  sso'^^' 

*11  party  entering  the  same,  and  no  other  fee  shall  be  charged  for  taxing:  ifii  Mass.  593. 

10  4.        *  •  •  U  •     ■  J.-  i-  r  •  ■  168  Mass.  304. 

IZ  costs,  tor  issuing  any  subpoena,  injunction  or  execution  or  tor  issuing  236  Mass.  326. 

13  any  order  of  notice  or  other  mesne,  interlocutory  or  final  order,  rule, 

14  decree  or  process  authorized  by  law. 

15  Upon  commencement  of  any  proceedings  under  chapter  two  hundred  p*s"'ir'"li4 

16  and  twenty-four  or  under  chapter  two  hundred  and  twenty-five,  relative  isoi,  313. 

17  to  debtors  in  a  district  court,  there  shall  be  paid  to  the  clerk  of  such  R.  l!  ibs! 

18  court  an  entry  fee  of  three  dollars  or  of  one  dollar  respectively,  which  fgistV?!,  §  7. 

19  shall  be  in  payment  of  hearing  applications,  examination  and  continu- 

20  ances,  and  the  issuing  of  all  notices  and  certificates  required  in  such 

21  proceedings. 

22  For  the  entrj^  record  and  transmission  of  papers  of  each  question  or 

23  cause  in  the  supreme  judicial  court  for  the  commonwealth,  three  dollars. 

24  For  a  certificate  of  the  proof  of  a  deed  in  court,  twenty  cents. 

25  For  the  warrant  for  a  county  tax,  twenty  cents. 

26  For  taking  and  recording  a  recognizance  under  chapter  two  hundred  nsi^liss 

27  and  fifty-six,  fifty  cents.  R.  s.  11s,  §  19. 

G.  S.  152.  §  15.  P.  S.  193,  §  15.  R.  L.  199,  §  10. 

28  In  civil  actions  which  are  entered  by  the  commonwealth  or  by  a  1902, 253. 

29  county  no  entry  fee  shall  be  paid;    but,  if  the  commonwealth  or  the  2  0p1a.g. 456. 

30  county  prevails,  the  entry  fee  shall  be  taxed  against  the  other  party. 

31  In  civil  actions  in  which  Boston  is  a  party  no  fee  or  expense  shall 

32  be  paid  to  any  clerk  of  a  court  of  Suffolk  county  by  or  on  behalf  of  the 

33  city;   but,  if  the  city  prevails,  the  fees  allowed  by  law  shall  be  taxed. 

1  Section  5.     When  clerks  cause  copies  to  be  printed  which  they  are  Copies. 

2  required  to  furnish,  they  shall  make  no  charge  for  such  printed  copies  p.  s.'i99,'§  5.' 

3  in  excess  of  the  amount  actually  paid  for  tlie  printing  thereof.    They  Pop!  a!  G.^522. 

4  may  require  the  estimated  cost  of  said  printing  to  be  paid  in  advance, 

5  and  they  shall  supervise  the  printing  and  correct  the  proofs  without 

6  charge.    All  written  copies,  including  such  as  are  prepared  for  printing, 

7  shall  be  charged  for  at  the  rate  of  twenty  cents  a  page. 

1  Section  G.     When  a  judgment  or  decree  is  entered  up,  and  upon  Additional 

2  inspection  it  appears  that  the  record  thereof  or  the  record  of  the  pro-  oFfudgmrat!^ 

3  ceedings  will  be  of  unusual  length,  the  court  may  order  the  prevailing  r**l.' Iw!  |  s! 

4  party  to  pay  such  amount,  in  addition  to  the  entry  fee,  asmay  be  just 

5  and  equitable. 

1       Section  7.     Clerks  of  the  courts  shall  collect  all  fees  in  adv-ance.  Fees  collected 

ISS8,  257,  §  8.  R.  L.  204,  §  9.  168  Mass.  304.  '"  '»''^'^""^«- 


2678 


FEES   OF   CERTAIN   OFFICERS. 


[Ch.\p.  262. 


Sheriffs,  etc. 


Fees  for  serv- 

ice of 

writs,  etc. 

1795, 

41,  i 

S  1. 

R.  S. 

122, 

§5. 

G.  S. 

157, 

§§  4.  7. 

1S60, 

191, 

§  I. 

1865, 

101. 

1877, 

177, 

§1. 

1878, 

272, 

§  1. 

P.  S. 

199, 

§6. 

R.  L. 

204, 

§  10. 

1913, 

611, 

§§1. 

18. 

1917, 

326. 

102  Mass. 

514. 

139  Mass. 

29U. 

Custody  of 
personal 
property,  etc. 
182  Mass.  144. 
235  Mass.  258. 


Attachment  of 
real  estate,  etc. 
1838,  186. 
1S39,  89. 
1847,  267,  §  3. 
G.  S.  123,  §  52. 
1870,264,  §  1. 
1873,  297,  I  1. 
P.  S.  161,  §  63. 
R.  L.  167,  §  60. 
1913.611, 
§1  1,18. 

Service  of  writ 
of  replevin,  etc. 


Le^'y  on  real 
estate,  etc. 


SHERIFFS,    DEPUTY    SHERIFFS   AND   CONSTABLES. 

Section  8.  The  fees  of  sheriffs,  deputy  sheriffs  and  constables  for 
the  service  of  civil  process  shall  be  as  follows: 

For  service  of  an  original  summons  or  scire  facias,  either  by  reading 
it  or  by  leaving  a  copy  thereof,  one  dollar  for  each  defendant  upon 
whom  service  is  made,  except  as  herein  otherwise  provided. 

For  service  of  a  libel  for  divorce,  including  copy,  five  dollars. 

For  service  of  a  capias,  of  an  attachment  with  summons  or  of  a 
trustee  process,  one  dollar  for  each  service  upon  each  defendant  or 
trustee. 

For  service  of  subpoena  in  a  bill  in  equity  under  chapter  two  hun- 
dred and  fifty-four,  fifty  cents  for  each  defendant  upon  whom  service 
is  made;  for  each  copy  of  such  subpoena,  thirty  cents;  for  filing  an  at- 
tested copy  of  such  subpoena  at  the  registry  of  deeds,  fifty  cents. 

For  each  copy  of  a  supreme  judicial,  superior,  probate  or  land  court 
writ,  precept  or  process,  except  as  herein  otherwise  provided,  one  dollar. 

For  each  copy  of  a  district  court  writ,  precept  or  process,  fifty  cents. 

If  the  officer  by  the  direction  of  the  plaintiff  or  his  attorney  makes  a 
special  service  of  a  writ  or  precept,  either  by  attaching  personal  property 
or  arresting  the  body,  he  shall  be  entitled  to  one  dollar  for  each  de- 
fendant upon  whom  the  writ  is  so  served,  and  four  dollars  additional  for 
custody  of  the  body  arrested,  and  at  the  same  rate  for  each  day  during 
which  he  has  such  custody.  If  the  officer  employs  an  assistant  in  the 
arrest  of  the  body,  he  shall  be  entitled  to  two  dollars  a  day  for  such 
assistant. 

For  the  custody  of  personal  property  attached,  replevied  or  taken  on 
execution,  not  more  than  two  dollars  for  each  day  of  not  more  than 
eight  hours  for  the  keeper  while  he  is  in  charge,  and  not  more  than  one 
dollar  a  day  for  the  officer  for  a  period  not  longer  than  ten  days;  but 
the  officer  may  be  allowed  a  greater  compensation  for  himself  or  for  his 
keeper,  or  compensation  for  a  longer  period,  by  the  written  consent  of 
the  plaintiff  and  the  defendant  whose  property  has  been  attached,  re- 
plevied or  taken  on  execution,  or  by  order  of  the  court  upon  a  hearing. 
He  shall  also  be  entitled  to  expenses  for  packing,  labor,  teaming,  storage 
and  taking  and  preparing  a  scliedule  of  property  attached,  replevied  or 
taken  on  execution,  if  he  certifies  that  such  expenses  were  necessary 
and  are  reasonable. 

For  an  attachment  on  mesne  process  of  land  or  of  any  leasehold 
estate,  one  dollar  for  each  defendant  against  whom  an  attachment  is 
made,  five  cents  a  mile  each  way  for  travel  from  the  place  of  service  to 
the  registry,  and  his  fee  for  the  copy  deposited  in  the  registry  of  deeds 
or  land  court,  together  with  the  recording  fees  actually  paid. 

For  a  special  attachment  of  real  estate,  one  dollar  additional  for  each 
person  against  whom  an  attachment  is  made. 

For  the  service  of  a  writ  of  replevin :  for  seizure  of  property,  one  dollar 
for  each  defendant;  securing  and  swearing  appraisers,  two  dollars,  and 
the  actual  amount  paid  to  appraisers,  as  hereinafter  provided;  examin- 
ing and  approving  sureties,  one  dollar;  delivery  of  property  replevied, 
one  dollar;  for  each  service,  one  dollar;  for  each  copy,  at  the  rate  herein- 
before provided  for  copies  of  writs,  precepts  or  other  processes. 

For  a  levy  on  real  estate:  for  preparing  and  serving  notice  of  sale, 
including  copy  and  travel,  three  dollars  for  each  debtor. 


1 

2 

3 
4 
5 
6 

7 
8 
9 
10 
11 
12 
1.3 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 


Chap.  262.]  fees  of  certain  officers.  2679 

52  For  preparing  and  posting  notices  of  sale,  six  dollars. 

53  The  necessary  expenses  of  advertising. 

54  For  the  sale  of  land  or  of  anj-  leasehold  estate,  five  dollars.  is62,  loo,  §  3. 

55  For  preparing,  executing  and  acknowledging  deed,  five  dollars.  r  l.V7'8,|^6'. 

56  For  travel,  five  cents  a  mile  each  way  from  the  place  where  he  receives  §§\^;is,'' 

57  the  execution  to  the  office  of  the  register  of  deeds,  and  his  fee  for  the 

58  copy. 

59  For  a  sale  of  personal  property  on  mesne  process  or  on  execution  the  saie  of  personal 

60  followin<T-  property  on 
uu    lUiluvMUf,.    ^                                                     ^  mesne  process, 

61  For  strvice  of  a  copy  of  notice  to  appoint  appraisers,  one  dollar  for  ''*''• 

62  each  person  upon  whom  service  is  made. 

63  The  necessary  ex-penses  of  taking  and  preparing  a  schedule  of  property 

64  proposed  to  be  sold. 

65  For  attendance  upon  and  swearing  appraisers,  two  dollars. 

66  The  amount  actually  paid  to  appraisers  as  hereinafter  provided. 

67  For  preparing  and  posting  notice  of  a  proposed  sale,  one  dollar. 

68  The  necessary  expenses  of  keeper,  labor  and  advertising. 

69  For  custody  of  property,  one  dollar  a  day. 

70  For  services  as  auctioneer,  or  for  services  of  an  auctioneer  in  selling 

71  property,  a  fair  and  reasonable  amount. 

72  If  the  sale  is  made  on  execution,  poundage  may  be  charged  as  herein- 

73  after  provided. 

74  The  fair  compensation  for  the  services  of  an  appraiser  shall  not  be 

75  more  than  three  dollars  for  each  day's  service,  but  the  officer  may  be 

76  allowed  a  greater  compensation  for  the  appraisers  by  an  order  of  the 

77  court. 

78  For  each  adjournment  of  sale   of  real   or  personal   property,   two 

79  dollars. 

80  For  taking  bail  and  furnishing  and  writing  the  bail  bond,  one  dollar,  Taking  bail, 

81  which  shall  be  paid  by  the  defendant,  and  taxed  in  his  bill  of  costs,  if  "''^^ 

82  he  prevails. 

83  For  serving  an  execution  in  a  personal  action  by  copy  and  demand  fj^Ju^f^ns 

84  on  debtor  or  on  trustee,  one  dollar  and  travel,  if  the  execution  is  not  poundage. 

85  collected  in  whole  or  in  part;    for  serving  an  execution  in  a  personal 

86  action,  and  collecting  damages  or  costs  on  an  execution,  warrant  of 

87  distress  or  other  like  process,  for  an  amount  not  exceeding  one  hundred 

88  dollars,  four  cents  for  every  dollar;   all  above  one  hundred  dollars,  and 

89  not  exceeding  five  hundred  dollars,  two  cents  for  every  dollar;    and  all 

90  above  five  hundred  dollars,  one  cent  for  every  dollar;    but  such  per- 

91  centage  shall  be  allowed  only  upon  the  amount  actually  collected.    A 

92  levy  of  the  execution  upon  his  body  shall  be  considered,  so  far  as  the 

93  fees  of  the  officer  are  material,  a  full  satisfaction  of  the  execution  if 

94  the  debtor  has  recognized  with  surety  or  sureties  as  required  by  law. 

95  For  serving  a  writ  of  seisin  or  possession  in  a  real  action,  five  dollars  .serving  writ  of 

96  for  each  parcel.  _  _  ...  .        102  wat:  5i4. 

97  For  serving  an  execution  upon  a  judgment  for  partition,  or  for  assign-  serving  execu- 

98  ment  of  dower  or  curtesy,  one  dollar  a  day.  judgment,  etc. 

99  For  serving  a  writ  of  capias  in  a  civil  proceeding,  five  dollars.  Serving  writ  of 

100  For  serving  a  writ  of  habeas  corpus,  five  dollars,  together  with  the  serving  writ  of 

101  fee  for  service  and  copy.  habeas  corpus. 

102  For  serving  a  venire  or  notice  to  jurors  for  attendance  upon  any  Serving  a 

103  court,  civil  or  criminal,  fifty  cents  for  each  person  upon  whom  ihe  serv-  "■"'"'"'■ 

104  ice  is  made. 


2680 


FEES   OF  CERTAIN  OFFICERS. 


[Chap.  262. 


Summoning 
witnesses. 


Dispersing 
warrants,  etc. 


Travel. 

1862,  216,  §§  1, 

6,7. 

1865,  101. 

1882,  215. 


Serving 
criminal 
process. 
1862,  216,  §  1. 
1881,  127,  §  2. 


Copies. 
1862,  216,  §  8. 
1805,  259,  1  1. 


For  summoning  witnesses,  fifty  cents  for  each  person  upon  whom  serv- 
ice is  made,  and  twenty-five  cents  for  each  copy  served,  together  with 
the  fee  paid  to  the  witness. 

For  dispersing  treasurer's  warrants  and  proclamations  of  all  kinds, 
eight  cents  each,  without  allowance  for  travel. 

For  travel  in  the  service  of  original  writs,  executions,  warrants,  sum- 
monses, subpoenas,  notices  and  like  processes,  five  cents  a  mile  each 
way,  to  be  computed  from  the  place  of  service  to  the  court  or  place  of 
return;  and  if  the  same  precept  or  process  is  served  upon  more  than 
one  person,  the  travel  shall  be  computed  from  the  most  remote  place  of 
service,  with  such  further  travel  as  was  necessary  in  serving  it;  if  the 
distance  from  the  place  of  service  to  the  place  of  return  exceeds  twenty 
and  does  not  exceed  fifty  miles,  five  cents  a  mile  one  way  only  shall  be 
allowed  for  all  travel  exceeding  twenty  miles,  and,  if  it  exceeds  fifty 
miles,  only  one  cent  a  mile  one  way  shall  be  allowed  for  all  travel  ex- 
ceeding that  distance. 

For  travel  in  the  service  of  venires  and  notices  to  jurors,  five  cents  a 
mile  for  the  distance  actually  traveled. 

For  serving  criminal  process,  as  follows: 

For  serving  a  warrant  of  capias  in  a  criminal  proceeding,  fifty  cents, 
and  of  a  summons  upon  the  defendant,  ten  cents,  for  each  person  upon 
whom  the  same  is  served. 

For  a  copy  of  a  mittimus,  warrant  or  other  precept  required  by  law 
in  criminal  cases,  twenty-five  cents. 

For  travel  in  summoning  witnesses  in  criminal  cases,  ten  cents  a  mile 
each  way  for  a  distance  of  not  more  than  twenty  miles,  and  for  any 
excess  over  twenty  miles,  five  cents  a  mile  each  way,  and  no  more. 
The  distance  shall  be  computed  from  the  most  remote  place  of  service 
to  the  place  of  return,  but  upon  a  subpoena  the  court  shall  reduce  the 
fee  for  travel  to  a  reasonable  amount  for  the  service  performed  if  the 
travel  charged  has  not  been  actually  performed  by  the  officer  who  made 
the  service. 


105 
106 
107 
108 
109 
110 
111 
112 
11.3 
114 
115 
116 
117 
118 
119 
120 
121 
122 
123 
124 
125 
126 
127 
128 
129 
130 
131 
1.32 
133 
1.34 
1.35 
136 


Processes 
returned  by 
mail,  etc. 
1878,  272,  § 
P.  S.  199,  " 
R.  L.  204 
1913,  Oil, 
§§  2,  18. 


§11, 


Section  9.  If  the  person  who  delivers  or  forwards  a  process  to  an 
officer  for  service  requests  him  to  return  it  by  mail  or  express,  com- 
pensation shall  not  be  allowed  for  more  than  twenty  miles'  travel  in 
the  service,  unless  the  officer  actually  and  necessarily  travels  more  than 
that  distance  in  serving  the  same,  exclusive  of  travel  from  the  place  of 
service  to  the  place  of  return,  and  an  officer  in  such  case,  who  properly 
directs  such  process  to  the  place  of  return  and  sends  it  by  mail,  postage 
prepaid,  or  delivers  it  to  an  ex-press  company,  shall  not  be  liable  for 
damages  if  it  fails  to  reach  its  destination. 


1 
2 

n 
O 

4 
5 
6 

8 
9 


Use  of  horse 
and  carriage, 

1864,  274,  §  1. 
P.  S.  199,  §  8. 
R.  L.  204,  §  12. 
1905,  336. 

1912,  184. 

1913,  611, 
§§  3,  IS. 

102  Mass.  514. 
110  Mass.  423. 


Section  10.  If  it  is  necessary  in  the  service  of  civil  process  for  an 
officer  to  use  a  horse  and  carriage  or  other  conveyance  for  a  distance 
exceeding  two  miles  one  way,  he  may  be  allowed  therefor  fifteen  cents 
a  mile  for  the  distance  traveled  one  way,  not  exceeding  thirty  miles. 
If  he  uses  the  horse  and  carriage  or  other  conveyance  of  another  person 
he  shall  be  allowed  the  amount  actually  expended  by  him  tlierefor;  but 
no  allowance  for  the  actual  amount  so  expended  by  him  shall  be  made 
unless  the  officer  certifies  that  it  was  necessart  for  him  to  use  a  horse 
and  carriage  or  other  conveyance,  and  that  he  actually  used  it  for  the 
distance,  and  paid  therefor  the  amount  stated  in  his  certificate. 


1 
2 

3 
4 
5 
6 
7 
8 
9 
10 


Chap.  262.]  fees  of  certain  officers.  2681 

1  Section  11.     Where  the  officer  is  by  law  directed  to  give  or  leave  a  Leaving  copy 

2  copy  of  any  process,  he  may  charge  for  each  copy  at  the  rate  prescribed  igi's^ti'i^'s  5. 

3  by  section  fifteen,  except  as  otherwise  provided. 

1  Section  12.     A  deputy  sheriff  shall  be  allowed  five  dollars  a  day  for  Deputy  sheriff 

2  attendance  upon  a  meeting  of  the  county  commissioners  by  their  order,  u°pon"oun'ty''^ 

3  and  five  cents  a  mile  for  travel  out  and  home  once  a  week  during  the  ^res'^if'Ti"' 

4  attendance,  to  be  paid  by  the  coimty. 

R.  S.  122,  §  S.        1S36.  1S5.  1S66,  190.  R.  L.  204,  §  15. 

1843,  75,  §  2.        G.  S.  157,  §  4.        P.  S.  199,  §  11.       1913,  611,  §§  6,  18. 

1  Section  13.     Sheriffs  and  other  officers  shall  be  paid  by  the  common-  servins  pre- 

2  wealth,  for  serving  precepts  for  the  election  of  representatives  in  con-  efe^'ctiJns.  etc. 

3  gress,  fifty  cents  each,  and  for  the  ser\-ice  of  subpoenas  issued  by  order  f^fg  |q|  '"■ 

4  of  the  general  court  or  either  branch  thereof  the  same  fees  as  are  allowed  is^g,  257, 1 4. 

5  for  the  service  of  subpoenas  issued  by  a  court. 

p.  S.  199,  §  12.  1899,218.  P..  L.  204,  §  Ifi.  1913,  Oil.  §7. 

1  Section  14.     The  fees  of  such  officers  in  poor  debtor  proceedings  in  poor  debtor 

2  shall  be  as  follows:  "  ?ssl!«9,1i3. 

3  For  the  service  of  citations  or  notices,  the  same  as  for  the  service  of  l^^?'  U^'  f  S. 

4  writs.  1913,611, 

5  For  the  commitment  of  a  defendant  or  debtor  arrested  in  poor  debtor 

6  proceedings  or  on  mesne  process  or  execution,  one  dollar  for  each  com- 

7  mitment,  and  one  dollar  for  each  copy  left  with  the  jailer. 

8  For  each  day's  attendance  at  court  or  before  a  magistrate  on  the 

9  examination  of  a  defendant  or  debtor  in  his  custody,  or  in  the  service  of 

10  a  writ  of  habeas  corpus  under  section  fifty-seven  of  chapter  two  hundred 

1 1  and  twenty-four,  including  the  fee  for  custody,  five  dollars. 

12  The  necessary  expense  of  a  horse  and  carriage  or  other  conveyance 

13  to  and  from  the  jail  in  the  service  of  a  process. 

1  Section  15.     The  fee  for  copies  of  any  process  of  more  than  one  page  copies  of  writs, 

2  shall  be  at  the  rate  of  fifty  cents  a  page,  except  as  provided  in  section  il/ia.  on,  §  lo. 

3  eight. 

1  Section  16.     In  the  service  of  any  process  issued  by  the  land  court,  service  of  proc- 

2  the  fees  shall  be  one  dollar  for  posting  a  copy  on  each  parcel  of  land,  fand'court  ^ 

3  and  the  same  fees  for  copy,  service  and  travel  as  are  hereinbefore  pro-  '^'''' ""'  ^  "' 

4  vided  for  the  service  of  ^^■rits. 

1  Section  17.     In  the  service  of  an  execution  of  ejectment  the  fees  serviceof 

2  shall  be:  for  demand,  one  dollar;   for  delivery,  one  dollar;  for  all  neces-  ej'ectm'e°n't,°etc. 

3  sary  expenses,  including  packing,  teaming  and  labor;    and  the  officer  1913.011,512- 

4  may  be  allowed  additional  compensation  by  an  order  of  the  court  from 

5  which  the  execution  issued. 

1  Section  IS.     An  officer  receiving  fees  for  any  official  duty  or  service,  ofRcerto 

2  who,  upon  request  of  the  person  paying  them,  refuses  or  neglects  to  ffre^uired"^ 

3  make  out  in  writing  in  his  return  a  particular  account  of  such  fees,  R™s'f22,Vis. 

4  specifying  for  what  they  respectively  accrued,  shall  forfeit  to  such  person  pfig^'lo/' 

5  three  times  the  amount  so  paid. 

1893,  469,  §2.  R.  L.  204,  §  37.  1913,  Oil,  §§  14,  IS. 


2682  FEES   OF   CERTAIN    OFFICERS.  [ChAP.    262. 

Em  onTrit' °^      Section  19.     No  fees  for  the  service  of  any  process  of  Avhich  the  1 

use  of  irore°^      officcr  is  required  to  make  a  return  shall  be  allowed,  unless  itemized  and  2 

a^d  carriage,     cndorsed  On  the  process;    and  no  allowance  for  the  use  of  horse  and  .3 

R.  s.'  122.  §  9.    carriage  or  other  conveyance  in  the  service  of  a  civil  process  shall  be  4 

1864.  274,      '  made,  unless  the  ofRcer  certifies  that  it  was  necessary  for  him  to  use  a  5 

R  I.'  199,  §§  28,  horse  and  carriage  or  other  conveyance,  and  that  he  actually  used  such  6 

ptL.  204,  §  38.  conveyance  for  the  distance  set  forth  in  his  certificate.    An  officer  who  7 

191.3'  ill'         makes  a  false  certificate  under  this  section  or  section  ten  shall  forfeit  S 

§§  15, 18.'         thirty  dollars  for  each  offence,  to  the  use  of  the  commonwealth.  9 

110  Mass.  423. 

srar'^hfor  Section  20.     An  ofBccr  shall  not  be  allowed  any  fees  for  making  a     1 

person,  etc.,       diligent  scarch  for  any  person  named  in  a  process,  except  the  amount    2 

named  in  writ,  ^  i     i    i         i  ■  •  i  •  i  i  i  i     .        i  • 

f,.!  A,,  « ,T  actually  expended  by  him  in  making  such  search  and  stated  in  his    3 

lyio,  oil,  3  17.  . 

return.  4 

Mp°ens°in°^         Section  21.     In  the  service  of  precepts  in  criminal  cases,  the  officer     1 
^cS'",^l'^^f'?-    shall  be  allowed  the  actual,  reasonable  and  necessary  expenses  incurred     2 

I860,  191,  §  3.      ,  .  .  •   1        ,  •  1    'e   1  M 

1862, 216,  §  1.    in  going  or  returning  with  the  prisoner,  and  it  he  necessarily  uses  his  3 

1885, 2.54.     '     own  horse  and  carriage  or  other  con\'eyance,  he  shall  be  allowed  therefor  4 

fifteen  cents  a  mile  for  the  distance  traveled  one  way,  and  if  he  uses  .5 

the  horse  and  carriage  or  other  conveyance  of  another  person,  he  shall  6 

be  allowed  the  amount  actually  expended  by  hira  therefor;    but  no  7 

allowance  for  the  use  of  a  horse  and  carriage  or  other  conveyance  shall  8 

be  made  unless  the  officer  certifies  that  it  was  necessary  for  him  to  use  a  9 

horse  and  carriage  or  other  conveyance  and  that  he  actually  used  them  10 

for  the  distance,  and  paid  therefor  the  amount,  stated  in  his  certificate.  11 

If,  in  the  service  of  a  mittimus,  the  journey  from  the  town  where  the  12 

prisoner  is  held  to  the  town  where  he  is  to  be  committed  can  be  made  13 

by  railroad,  no  allowance  shall  be  made  for  the  use  of  a  horse  and  car-  14 

riage  or  other  conveyance.  15 

upon°cM°ain  SECTION  22.     The  fee  for  attending  before  a  district  court  or  trial     1 

R"s'*i22  ?  5     justice  shall  be  one  dollar  a  day,  upon  one  warrant  only,  if  there  are    2 
}?ti'Tot^^-     two  or  more  against  the  same  defendant  at  the  same  time.     If  the    3 

loOD,  185.  ini  ...1  '        1  1*1 

G.  s.  157.  §  4.    defendant  in  a  crimmal  case  is  brought  in  bv  a  summons,  the  fee  for    4 
issi!  127;  1 2.    attendance  shall  be  the  same  as  that  taxed  upon  a  warrant.  5 

p.  S.  199,  §  10.  R.  L.  204,  §  14.  1910,  317. 


MAGISTRATES. 

Sfretieretc"  °^      SECTION  23.     The  fccs  of  magistrates  for  the  examination  of  sureties  1 

1S17, 186  §  1.    and  approval  of  bonds  or  for  the  taking  of  recognizances  shall  be  in  2 

1848. 320,  §  2.    each  case  two  dollars  for  the  citation,  if  any,  and  the  first  day's  hearing,  3 

i855;249,  §i;    and  two  dollars  in  addition  for  each  adjournment  thereof.    These  fees  4 

1S57,  HI,         shall  be  paid  in  advance.  5 

§§  22,  29.  G.  S.  123,  I  106;  124,  1877,  97,  §  2.  1889,  415,  §  6. 

§  48;  125,  §  4.  P.  S.  161,  §§  124,  127;  R.  L.  167,  §§  118,  122; 

1866,  193,  §1.  162,  §  68;  163,  §  4;  183,  168,  5  75;  169,  §  4; 

1867,137,5  2.  §  71;  184,  5  20.  189,  §  65;  190,  §  17. 

1870,  291,  I  4;  309,  §  3.  1888,  419,  |  13.  1911,  150. 

Certain  bail  SECTION  24.     The  maximum  fee  to  be  charged  by  any  person  author-     1 

1907, 327.         ized  to  take  bail  in  the  case  of  a  person  arrested  for  any  misdemeanor    2 

shall  be  two  dollars.  3 


Chap.  262.]  fees  of  certain  officers.  2683 


JURORS,   WITNESSES,   ."LPPIL^ISERS,   COMMISSIONERS,   ETC. 

1  Section  25.     The  compensation  of  traverse  jurors  impanelled  to  try  Jurors-  fees,  etc. 

2  cases  of  murder  in  the  first  degree  shall  be  five  dollars,  and  that  of  all  HU]  63,'  §  i. 

3  other  traverse  jurors  and  of  grand  jurors  four  dollars,  for  each  day's  r  *s*  122 '  §  io'' 

4  service.    All  jurors  shall  receive  once  in  each  week  twelve  cents  a  mile  J|||'  ^J-    j 

5  for  travel  out  and  home.    If  the  expense  of  a  juror  who  attends  court,  g. s.'i57,§s.' 

6  necessarily  and  actually  incurred  for  transportation  out  and  home  once  iseg]  73. ' 

7  in  each  week,  exceeds  the  amount  of  the  said  allowance  for  travel,  he  1I79!  ilk 

8  shall  be  allowed  the  amount  of  such  expense  in  lieu  of  the  said  travel  TsqI,  sss.  ^  ^^' 

9  allowance.    If  a  grand  or  traverse  jiuor  is  required  to  be  in  attendance  fgoslitt'  ^  ^^' 

10  for  five  or  more  consecutive  days  he  shall  receive  his  fees  not  later  than  Jgjg'ff?' 

11  the  end  of  every  fifth  day  of  such  attendance.  Op.  a.  g.  (1919)  rs. 

1  Section  26.     Officers  who  serve  subpoenas  or  other  processes  in  con-  service  of 

2  nection  with  inquests  held  by  district  courts  shall   be  paid  their  fees  to°i"qSe''sts."''* 

3  and  expenses  by  the  county  as  in  criminal  cases,  in  the  same  manner  as  ^^l]  |^;  |  Vs. 

4  the  fees  of  witnesses  are  paid  in  criminal  cases  in  said  courts. 

1  Section  27.     In   cases   against  juvenile   offenders,    an   officer   who  officer  in  cases 

2  attends  as  a  witness  at  a  place  other  than  that  of  his  residence  may  be  ole'iSeri"^*'"'^ 

3  allowed  by  the  court  or  justice  his  increased  necessary  expenses,  not  r^^l!  Im,  §  19. 

4  exceeding  the  witness  fee  before  such  court  or  justice,  and  the  reason- 

5  able  necessary  expense  of  serving  a  mittimus. 

1  Section  28.     If  an  officer,  whose  compensation  for  services  in  crimi-  Arrest?  for 

•I'lp  ii(>  1  fl  druiiKenness. 

2  nal  proceednigs  is  derived  from  taxable  fees,  makes  an  arrest  for  drunken-  iS92,  200, 

3  ness  and  the  person  arrested  is  discharged  without  being  taken  into  R.  l.  204,  §  20. 

4  court  or  before  a  trial  justice,  he  shall  be  entitled  to  the  same  fees  as  if      p-   ■    ■ 

5  a  complaint  had  been  made  against  the  person  arrested.    If  the  arrest 

6  is  made  without  a  warrant,  the  officer  shall  make  a  sworn  statement  of 

7  his  fees,  in  the  nature  of  a  return  upon  a  precept,  and  shall  send  it 

8  to  the  court  or  trial  justice  having  jurisdiction  of  the  offence.     Special 

9  police  officers  who  make  arrests  for  drunkenness  in  towns  where  the 

10  police  officers  or  constables  receive  salaries  shall  be  entitled  to  no  fees 

11  under  this  section. 

1  Section  29.     The  fees  for  attending  as  a  witness  before  the  depart-  witness  fees. 

1  70 'i    J 1      Si 

2  ment  of  industrial  accidents,  the  board  of  conciliation  and  arbitration,  isos!  as.  §  2. 

3  in  a  civil  case  in  the  supreme  judicial  court,  superior  court,  land  court,  R.a'ifi,  §  10, 

4  probate  court  or  court  of  insolvency,  or  to  persons,  except  the  debtor,  Jftfllos! 

5  who  are  examined  under  section  eighty-two  of  chapter  two  hundred  c^sUr'ti' 

6  and  sixteen,  unless  fraudulent  conduct  is  charged  and  proved  against  Jfgg'l-''^^- 

7  them,  shall  be  one  dollar  and  fifty  cents  a  day;    for  attending  before  i87o!ioi. 

8  any  of  said  courts  in  a  criminal  case,  before  county  commissioners,  or  1S90.277'. 

9  before  the  general  cotu't,  one  dollar  and  twenty-five  cents  a  day;    for  fg'os,' I?!' §  15! 

10  attending  before  a  trial  justice,  district  court,  referee,  arbitrator  or  on  JgJi;  |j|;  ^  **■ 

1 1  any  other  occasion  for  which  no  express  provision  is  made,  fifty  cents  J^is.  |23;  273. 

12  a  dav;  and  in  all  cases,  five  cents  a  mile  for  travel  out  and  home;  pro-  1  ^la^^.  295 

.','.„,  .  ,  ,       ,  HI-  1  •       Ho  Mass.  203. 

13  vided,  that  it  the  witness  has  a  usual  place  or  business  or  employment  in  i76Mass.  4S. 

14  the  city  or  town  where  the  court  trial  or  hearing  is  held,  travel  shall 
l"}  be  reckoned  out  and  to  such  place  of  business  or  empkn-ment,  and  not 

16  out  and  home.    Each  witness  shall  certify  in  writing  the  amount  of  his 

17  travel  and  attendance. 


2684 


FEES    OF   CERTAIN    OFFICERS. 


[Chap.  262. 


Witnesses  held 
in  jail. 

1894,  40B,  §  2. 
R.  L.  204,  §  22. 


Section  30.     A  witness  who  is  detained  in  jail  under  section  fort}--  1 

nine  of  chapter  two  hundred  and  seventy-six  because  of  his  inability  2 

to  furnish  sureties  shall  be  allowed  as  a  witness  fee  such  sum  as  the  3 

court  shall  order,  but  not  less  than  one  dollar  and  fifty  cents  for  each  4 

day  of  his  detention.  5 


Section  31.     The  court  shall  determine  the  compensation  of  pri\ate     1 


Appraisers, 
etc. 

R^l.' *22,\^o.   persons  who  perform  service  required  by  law,  or  in  the  execution  of     2 
G.  s.  157,  §  8.    legal  process,  if  no  other  provision  is  made  therefor.  3 

p.  S.  199,  §  1.5.  1886,  135.  R.  L.  204,  §  23. 


and'wHncsses        Section  32.     District  courts  and  trial  justices  may  allow  reasonable  1 

t™"common-     Compensation  to  interpreters  and  to  witnesses  from  witliout  the  com-  2 

"893*385  monwealth  in  criminal  proceedings  before  them,  which  shall  be  paid  by  3 

E.  l'.  204,  §  24.  the  counts'  in  the  same  manner  as  witness  fees.  4 


witnesses  in 
neglept  and 
delinquent 
cases. 
1907,  158. 


Section  33.  All  laws  in  relation  to  the  payment  of  witness  fees  and 
to  the  payment  of  expenses  of  officers  in  criminal  cases  shall  apply  in 
cases  arising  under  sections  forty-two  to  sixty-four,  inclusive,  of  chapter 
one  hundred  and  nineteen. 


Fees. 
1796,  41, 
R.S.  122, 
12. 

1849,  202, 
18.50,  121, 
G.  S.  157, 
P.  .S.  199. 
R.  L.  204, 
190S,  121. 
1911,  730, 


§1. 

§§n, 

§2. 
§4. 
§9. 
§  Ifi. 


,  TOWN   CLERKS. 

Section  34.     The  fees  of  town  clerks  shall  be  as  follows :  1 

For  entering  notice  of  an  intention  of  marriage  and  issuing  the  certifi-  2 

cate  thereof,  and  for  entering  the  certificate  of  marriage  which  is  filed  by  3 

persons  married  out  of  the  commonwealth,  one  dollar,  which  shall  be  4 

paid  at  the  time  of  such  entry  or  filing.  5 

For  a  certificate  of  a  birth  or  death,  twenty-fi\e  cents.  6 

1919,  IGS,  §  2. 


FOR   .MARRIAGES. 

The  fee  for  lawfully  solemnizing  and  certifA'ing  a  mar- 


Marriages.  ^p-rTrnxr    ^'% 

1795,41.  §  1.  _  OECIION    O.) 

S'  a  H;'  I  ]\'  riatje  sliall  be  one  dollar  and  twentv-five  cents. 

G,  S.  157,  §  10.  '^^  * 

P.  S.  199,  §  17.  R.  L.  204.  §  26. 


201  Mass.  261. 


ST.ATE    SECRETARY. 

1795;  4i"§ '"''■  Section  36.  The  fee  for  copies  of  any  official  papers  certified  by  the  1 
G  I'  157'  I  if  state  secretary  shall  be  fifty  cents  for  the  first  page  and  forty  cents  for  2 
1863, 231',  §  1.  ■  each  additional  page.  iscs,  259,  §  1.  is70. 224,  §  59.  3 

P.  S.  199,  §  IS.  R.  L.  204,  §  27.  1920,  508,  §  8. 


Examination  of      Section  37.     Every  person  upon  whose  application  an  examination 

the  records,  etc.  ,     ^        .       .     '     ..  .  p      i  in 

1863, 231,  §3.    of  records  or  papers  is  made  by  direction  oi  the  state  secretary  shall 

R.  h.  204,  §  is.  pay  to  the  secretary  therefor  the  actual  expense  thereof,  and  of  copying 

^'    ■    ■      ■  the  manuscript  or  record  required;   but  any  person  whom  the  secretary 

considers  to  be  entitled  to  exemption  from  said  fees  shall  receive  such 

service  and  copies  for  such  reduced  fees,  or  without  fee,  as  the  secretary 

may  determine. 


REGISTERS    OF   DEEDS. 

S^d'eri^  Sectkin  3S.     The  fees  of  registers  of  deeds,  except  as  otherwise  pro-  1 

r^s'qo'Iso-    ■^'•cled,  to  be  paid  when  the  instrument  is  left  for  recording,  filing  or  2 

122,  §  15.         deposit,  shall  be  as  follows:  3 


Ch.\P.   262.]  FEES   OF  CERTAIN  OFFICERS.  2685 

4  For  entering  and  recording  a  deed  or  other  paper,  certifying  the  same  isss.  su.  5 1. 

5  on  the  original,  and  indexing  it,  and  for  all  other  duties  pertaining  i57%'i2!  ^  ^^' 

6  thereto,  forty-five  cents.     If  it  contains  more  than  one  page,  at  the  fgo^ilo. ^^*' 

7  rate  of  forty-five  cents  for  each  page  after  the  first;    provided,  that  if  {f ^^  2''^'§^''^- 

8  the  deed  or  other  paper  contains  the  names  of  more  than  two  parties  PJ.'In'^'sVi' 

9  thereto,  other  than  the  husband  or  wife  of  the  grantor  or  grantee,  an  lao's,  365. 

10  additional  fee  of  ten  cents  each  shall  be  charged  for  indexing  the  names  i9io;273.' 

11  of  additional  grantors  or  grantees  or  other  parties  thereto.     The  mini-  Soil;  fSo!  1 1^' 

12  mum  fee  for  recording  a  deed  or  conveyance  shall  be  one  dollar,  and  for  i'op. Iv.^i.^al' 

13  recording  a  mortgage,  two  dollars. 

14  For  all  copies,  at  the  rate  of  forty  cents  a  page. 

15  For  entering  in  the  margin  a  discharge  of  a  mortgage,  fifty  cents. 

16  For  entering   an   attachment   or   an   execution,   for   each   defendant 

17  named,  fifty  cents. 

18  For  entering  a  discharge  of  an  attachment  or  of  a  lien  on  buildings 

19  and  lands,  fifty  cents. 

20  For  entering  and  filing  a  plan,  of  a  size  not  over  fourteen  inches  by 

21  nine  and  one  half  inches,  one  dollar;  for  larger  sizes,  not  less  than  two 

22  dollars. 

23  For  entering  a  partial  release  of  an  attachment,  fifty  cents. 

24  An  additional  fee  of  twenty-five  cents  each  shall  be  charged  for  mak- 

25  ing  marginal  references  when  they  are  required. 

26  For  notation  of  reference  under  section  twenty  or  twenty-one  of  chapter 

27  thirty-six,  twenty-fi\'e  cents. 

28  For  filing,  recording  and  indexing  a  notice  of  a  federal  tax  lien,  fifty 

29  cents. 

L-USTD   COURT. 

1  Section  39.   The  fees  payable  under  chapter  one  hundred  and  eighty-  Certain  fees 

c\    n  ^      It   1  p    M  **f  land  court. 

2  live  shall  be  as  follows:  isss,  662, 

3  For  the  entry  of  every  original  petition  or  writ  and  transmitting  it  r.  l.  12s, 

4  to  the  recorder,  when  filed  with  an  assistant  recorder,  three  dollars.  i9a5%49, 

5  For  every  plan  filed,  seventy-five  cents.  1915^20  53 

6  For  indexing  an  instrument  recorded  while  a  petition  for  registration 

7  is  pending,  twenty-five  cents. 

8  For  examining  title,  on  a  petition  to  register  land,  five  dollars,  and 

9  one  tenth  of  one  per  cent  of  the  value  of  the  land;    on  a  petition  to 

10  register  easements  or  rights  in  land,  the  actual  amount  allowed  therefor 

1 1  to  the  examiner  by  the  court. 

12  For  each  notice  by  mail,  twenty-five  cents  and  the  actual  cost  of 

13  printing. 

14  For  each  notice  by  publication,  twenty-five  cents  and  the  actual  cost 

15  of  publication. 

16  For  entry  of  an  order  dismissing  a  petition  for  registration  of  title,  or 

17  for  foreclosure  of  a  tax  title,  or  a  decree  of  registration,  foreclosure 

18  or  redemption,  and  sending  a  memorandum  to  assistant  recorder,  one 

19  dollar. 

20  For  a  copv  of  a  decree  of  registration,  foreclosure  or  redemption,  one 

21  dollar. 

22  For  the  entry  of  an  original  certificate  of  title  and  issuing  one  dupli- 

23  cate,  three  dollars. 

24  For  making  and  entering  a  new  certificate  of  title,  including  issue 

25  of  one  duplicate,  one  dollar. 

26  For  each  additional  duplicate  certificate  after  the  first,  fifty  cents. 


2686  FEES  OF  CERTAIN   OFFICERS.  [ChAP.   262. 

For  the  registration  of  every  instrument,  whether  single  or  in  dupli-  27 
cate  or  triplicate,  including  entering,  indexing  and  filing  it  and  attesting  28 
the  registration  thereof,  and  also  making  and  attesting  a  copy  of  memo-  29 
randum  on  one  instrument  or  on  a  duplicate  certificate  when  required,  30 
one  dollar  and  fifty  cents.  31 

For  making  and  attesting  copy  of  memorandum  on  each  additional  32 
instrument  or  duplicate  certificate  if  required,  fifty  cents.  33 

For  filing  and  registering  an  adverse  claim,  tliree  dollars.  34 

For  entering  statement  of  change  of  residence  or  post  office  address,  35 
including  endorsing  and  attesting  it  on  a  duplicate  certificate,  twenty-  36 
five  cents.  37 

For  entering  any  note  in  the  entry  book  or  in  the  registration  book,  38 
twenty-five  cents.  39 

For  the  registration  of  a  suggestion  of  death  or  notice  of  issue  of  a  40 
warrant  in  insolvency  or  of  adjudication  of  bankruptcy,  twenty-five  41 
cents.  42 

For  the  registration  of  a  partial  release,  discharge  or  release  of  a  mort-  43 
gage  or  other  instrument  creating  an  encumbrance,  fifty  cents.  44 

For  the  registration  of  a  memorandum  or  certificate  of  entry  for  pos-  45 
session  or  deposition  in  proof  thereof,  fifty  cents.  46 

For  the  registration  of  any  levy,  or  of  any  discharge  or  dissolution  of  47 
any  attachment  or  levy,  or  of  any  certificate  of  or  receipt  for  payment  48 
of  taxes,  or  of  a  notice  of  a  federal  tax  lien  or  of  any  mechanic's  lien  or  49 
lien  for  labor  or  materials,  or  a  notice  of  any  pending  action  or  of  a  50 
judgment  or  decree,  fifty  cents.  51 

For  endorsing  on  any  mortgage,  lease  or  other  instrument  a  memo-  52 
randum  of  partition,  one  dollar.  53 

For  every  petition  after  the  original  registration,  one  dollar.  54 

For  a  certified  copy  of  any  decree  or  registered  instrument,  the  same  55 
fees  as  are  provided  for  registers  of  deeds.  56 


REGISTERS   OF   PROBATE   AXD    INSOLVENCY. 

probat"and          SECTION  40.     The  fccs  of  Tcgistcrs  of  probate  and  insolvency  shall  be  1 

is9tr69-:§2.    as  follows :_  _  _  ^2 

R.  L.  204,  §  30.      For  copies  of  records  or  other  papers  in  their  charge,  the  fees  which  3 

are  provided  by  this  chapter  for  similar  copies  unless  the  fees  are  other-  4 

wise  fijxed  by  law.  5 

NOTARIES   PUBLIC. 

No|arie|pubiic.      gj-^TioN  41.     The  fces  of  notaries  public  shall  be  as  follows:  1 

G^i'. \h, %  13.       ^or  *^1^6  protest  of  a  bill  of  exchange,  order,  draft  or  check  for  non-  2 

R  L^loiVsi  acceptance  or  non-payment,  or  of  a  promissory  note  for  non-payment,  3 

if  the  amount  thereof  is  five  hundred  dollars  or  more,  one  dollar;    if  it  4 

is  less  than  five  hundred  dollars,  fifty  cents;    for  recording  the  same,  5 

fifty  cents;   for  noting  the  non-acceptance  or  non-payment  of  a  bill  of  6 

exchange,  order,  draft  or  check  or  the  non-payment  of  a  promissory  7 

note,  se^•enty-five  cents;    and  for  each  notice  of  the  non-acceptance  or  8 

non-payment  of  a  bill,  order,  draft,  check  or  note,  given  to  a  party  9 

liable  for  the  payment  thereof,  twenty-five  cents;    but  the  whole  cost  10 

of  protest,  including  necessary  notices  and  the  record,  if  the  bill,  order,  11 

draft,  check  or  note  is  of  the  amount  of  five  hundred  dollars  or  more,  12 

shall  not  exceed  two  dollars,  and  if  it  is  less  than  five  hundred  dollars,  13 


Chap.  2G2.]  fees  of  certain  officers.  2687 

1-t  shall  not  exceed  one  dollar  and  fifty  cents;   and  the  whole  cost  of  noting, 

15  including  recording  and  notices,  shall  in  no  case  exceed  one  dollar  and 

16  twenty-fi^'e  cents. 

commissioners  in  other  states. 

1  Section  42.     The  fees  of  commissioners  appointed  under  section  four  Commissioners 

2  of  chapter  two  hundred  and  twenty-two  shall  be  as  follows:  etc"  """  '*'" 

3  For  administering  oaths  and  certifying  the  same  under  their  official  r  a'lM.  §  22. 

4  seals,  one  dollar  for  each;    for  taking  acknowledgments  of  deeds  and  ns\iist' M^' 

5  other  instruments  and  certifying  the  same  under  their  official  seals,  one  i^s  Mass.  295. 

6  dollar  for  each;  for  each  written  page  contained  in  any  deposition  or  affi- 

7  davit  taken  by  them,  fifty  cents;    for  administering  the  oath  or  affirma- 

8  tion  to  each  deponent,  one  dollar;    for  authenticating,  sealing  up  and 

9  directing   each   deposition,    one   dollar;     for   services   not   hereinbefore 

10  specified,  the  same  fees  as  are  allowed  to  justices  of  the  peace  in  this 

11  commonwealth  for  like  services;    but  the  court  to  which  a  deposition  is 

12  returnable  shall  order  further  allowance  therefor  if  it  appears  proper  to 

13  do  so. 

GENERAL  PROVISIONS. 

1  Section  43.    The  fees  of  public  officers  for  any  official  duty  or  serv-  Cases  not 

2  ice  shall,  except  as  otherwise  pro\ided,  be  at  the  rate  prescribed  in  this  r.^s.  1^22, § 21. 

3  chapter  for  like  services. 


1855,311,  §  3. 

1898,  562,  «  110. 

7  Gray,  128. 

G.  S.  157,  §  14. 

R.  L.  128,  1  109; 

13  Gray,  77. 

P.  S.  199,  §  23. 

204.  §  33. 

118  Mass.  422. 

1S93,  469,  1  2. 

1913,  611,  §  16. 

2  Op.  A.  G.  610 

1  Section  44.     The  department  of  public  utilities  may  charge  ten  cents  c?pies. 

2  a  folio  for  copies  of  official  documents  and  orders  relating  to  common  p".  s.'i99,'§24. 

3  carriers.    Other  public  officers  required  by  law  to  furnish  copies  of  records  r.''l',  204',  §  34. 

4  or  other  papers  shall  receive  fees  for  such  copies  at  the  same  rate  as  is  ^^^^'  ''^'  5  '• 

5  allowed  to  registers  of  deeds,  unless  otherwise  provided. 

1  Section  45.    A  page,  when  used  as  the  measure  of  computation,  "^^se" 

2  shall  mean  two  hundred  and  twenty-four  words. 

1795,  41,  §  1.  G.  S.  157,  §  15.  1.S93,  469,  §  2. 

R.  S.  122,  §  22.  P.  S.  199,  §  25.  R.  L.  204,  §  35. 

1  Section  46.     Each  of  the  officers  before  mentioned  shall  always  keep  List  ot  fees  to 

2  posted  in  a  conspicuous  and  convenient  place  in  his  office  a  printed  or  puiS^c  offices. 

3  written  list  of  the  fees  prescribed  in  this  chapter  so  far  as  they  relate  r.^!.' i22,\^i7. 

4  to  him.  0.  s.  157,  §  is. 

P.  S.  199,  §  26.  1893,  469,  §  2.  R.  L.  204,  §  36.  1913,  611,  §  13. 

1  Section  47.     No  fees  shall  be  allowed  upon  the  return  of  an  officer  Return  of 

2  upon  a  precept  in  a  criminal  case,  in  which  expenses  are  charged,  unless  criminal  cases 

3  every  item  of  expense  incurred  and  the  name  of  the  person  to  whom  "ge^ne,  §§  4, 

4  each  amount  was  paid  is  set  forth  under  oath  in  the  return;    and  no  p.  s^'igg,  §§  30, 

5  item  of  expense  which  may  be  considered  unreasonable  shall  be  allowed  ^'g^  ^^q  ^  ^ 

6  by  the  court  or  trial  justice  without  satisfactory  proof  that  the  expense  R-  l.  204,  §  39. 

7  was  necessarily  incurred  and  the  amount  reasonable.    But  the  superior 

8  court,  with  the  written  approval  of  the  district  attorney,  or  a  district 

9  court  or  a  trial  justice,  may,  upon  the  petition  of  an  officer  nauied  in 

10  sections  fifty  and  fifty-one,  allow  extra  compensation  for  any  meritorious 

11  service  for  which  the  fees  allowed  by  law  are  manifestly  inadequate. 


2688  FEES   OF   CERTAIN   OFFICERS.  [ChaP.   262. 

No  allowance  shall  be  made  for  aid  in  the  service  of  a  mittimus,  unless  12 

first  authorized  in  writing  by  the  court  which  issues  it.    Justices,  clerks  13 

and  assistant  clerks  of  courts  shall  administer  the  oath  to  officers  upon  14 

their  returns,  at  their  request;   and  no  fee  shall  be  allowed  to  an  officer  15 

for  such  oath,  and  no  justice  of  the  peace  shall  be  entitled  to  a  fee  for  16 

administering  such  oath.  17 

for  sem'ce,  ete^      SECTION  48.     If  morc  than  onc  criminal  process  is  served  upon  the  1 

8ame°ttoe^^  ""^    Same  defendant  on  the  same  day,  or  if  two  or  more  prisoners  are  con-  2 

^^i'lid'iii    veyed  at  one  time  by  the  same  officer,  by  virtue  of  a  mittimus,  habeas  3 

R.  L.  204,  §  40.  corpus  or  state  prison  warrant,  either  on  one  process  or  on  several  proc-  4 

esses,  one  traveling  fee  and  one  service  only  shall  be  allowed  in  con-  5 

^•eying  such  additional  prisoner  or  prisoners,  in  addition  to  the  actual  6 

reasonable  expense  necessarily  Incurred.  7 


No  fee  for  is- 
suing or  serving 


Section  49.     No  fee  shall  be  allowed  to  a  trial  justice  for  issuing  1 

mrulmus^ete"    morc  than  one  mittimus,  nor  to  an  officer  for  the  service  of  more  than  2 

^^i'lia'iii    '^^^  mittimus,  in  cases  in  which  two  or  more  persons  are  jointly  con-  3 

R.  L.  204,  §  -ii.  victed  and  sentenced  to  the  same  place  of  imprisonment;   and,  if  the  4 

superior  court  is  of  opinion  that  a  trial  justice  has  improvidently  issued  5 

two  or  more  warrants  against  the  same  defendants  for  similar  offences,  6 

no  fees  shall  be  allowed  to  the  justice  upon  any  of  said  warrants.  7 

no"<fbe°pa^"^      SECTION  50.     No  officer  in  attendance  on  any  court,  sheriff,  deputy  1 

fees,  except,       gheriff ,  jailer,  constable,  city  marshal  or  other  police  officer  who  receives  2 

sf^fo^i's'         ^  salary  or  an  allowance  by  the  day  or  hour  from  the  commonwealth  3 

zir^'/i^'         °'"  ^""^^  ^  county,  city  or  town  shall,  except  as  otherwise  hereinafter  4 

p.s.  199,          provided,  be  paid  any  fee  or  extra  compensation  for  official  services  5 

18S9,'469.         performed  by  him  in  any  criminal  case;    or  for  aid  rendered  to  another  6 

§§  i.'g,  12.        officer;   or  for  testifying  as  a  witness  in  a  criminal  case  during  the  time  7 

it^L.  204, 1 42.  for  which  he  receives  such  salary  or  allowance;   or  for  services  or  as  a  8 

i*op^A^G^594  witness  at  an  autopsy  or  inquest;   or  in  proceedings  for  commitment  of  9 

2o'  A  G  209  iiisane  persons;  but  his  expenses,  necessarily  and  actually  incurred,  and  10 

Op.A.G.(igis)  actually  di.sbursed  by  him  in  a  criminal  case  tried  in  the  superior  court,  11 

shall,  except  as  provided  in  section  fifty-two,  be  paid  by  the  county  12 

where  the  trial  is  held,  or  in  a  criminal  case  tried  in  a  district  court  13 

or  before  a  trial  justice,  by  the  town  where  the  crime  was  committed.  14 

Whoever  receives  extra  compensation  or  a  witness  fee  in  \iolation  of  15 

this  section  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  16 

dollars.  17 

expen^sMof           SECTION  51.    The  fccs  and   expenses  of  officers,   other  than  those  1 

officers  in         named  in  the  preceding  section,  in  a  criminal  case  tried  in  the  superior  2 

criminal  cases.  ^  ^  .ii'ici,.  »  i  ■,    i 

1890, 440,  §2.    court,  shall,  except  as  provided  in  the  following  section,  be  paid  by  3 

r.l'. 204',  § 43.  the  county  where  the  trial  is  held,  and  in  a  criminal  case  tried  in  a  4 

district  court  or   before  a  trial  justice,  by  the  town  where  the  crime  5 

was  committed.  6 

^esTnd*°'           Section  52.     Except  in   Suffolk  county,   the  fees  and   expenses  of  1 

i9io°248          officers  in  the  apprehension,  trial  or  commitment  of  a  person  arrested  2 

or  tried  as  a  tramp  or  vagrant  shall  be  paid  by  the  county  where  the  3 

offence  was  committed.  4 


Chap.  262.]  fees  of  certain  officers.  2689 

1  Section  53.    Any  officer  named  in  section  fifty  who  attends  as  a  Certain  officers. 

2  witness  at  a  place  other  than  his  residence  shall,  instead  of  his  expenses,  rx!  204,  §44. 

3  be  allowed  the  witness  fee  in  the  court  or  before  the  trial  justice  where  ^°^  ^^"^"^  '^°' 

4  he  testifies.    A  police  officer  on  duty  at  night  who  attends  the  superior 

5  court  as  a  witness  for  the  commonwealth  shall  be  paid  the  same  fees 

6  as  any  other  witness.    A  police  officer  who  is  a  witness  for  the  common- 

7  wealth,  and  who  under  the  direction  of  the  district  attorney  aids  in 

8  securing  the  attendance  of  other  witnesses,  may  receive,  instead  of  his 

9  expenses,  witness  fees  for  one  day's  attendance.     Police  officers  shall- 

10  serve  subpoenas  upon  witnesses  when  requested  by  the  district  attorney, 

11  and  their  returns  of  service  shall  have  the  same  force  and  effect  as  the 

12  return  of  a  deputy  sheriff  or  constable. 

1  Section  54.     A  deputy  sheriff  or  other  officer  attending  the  superior  Compensation 

i-._Li>''ll_'  1  u  'l-i  of  officers  for 

2  court  tor  crimmal  busmess,  who  serves  any  subpoena  or  capias  between  attending  su- 

3  the  daily  sessions  of  said  court,  may  receive  such  extra  compensation  crim°ina°case's° 

4  as  the  district  attorney  may  allow.    The  officers  shall  make  return,  on  r^lIIw',  §45. 

5  oath,  of  the  time  actually  occupied  and  of  all  expenses  actually  in- 

6  curred  and  paid  in  performing  such  extra  service. 

1  Section  55.    Railroad  police  shall  not  be  entitled  to  any  fees  for  Railroad  police. 

2  attendance  upon  a  trial  as  witnesses  for  the  commonwealth,  but  they  rT.'204,'§46. 

3  may  be  allowed  their  necessary  expenses  therefor. 

1  Section  56.    A  state  police  officer  or  an  officer  of  the  common-  Certain  public 

2  wealth  whose  salary  is  fixed  by  law,  or  any  employee  of  the  common-  entitTed'to 

3  wealth  receiving  regular  compensation  therefrom,  shall  not  be  entitled  ^^^"^^  "''"' 

4  to  a  witness  fee  before  any  court  or  trial  justice  in  a  cause  in  which  the  11%]  HI]  5  ^ 

5  commonwealth  is  a  party.     An  officer  whose  compensation  is  derived  p^^'frl^fj  gg 

6  solely  from  fees  shall  not  be  entitled  to  receive  more  than  one  fee  as  a  R-  Jj-  ioi.  §  47. 

7  witness  for  a  day's  attendance  on  coiu-t  under  one  or  more  summonses  iop!a.  g.  404. 

8  in  behalf  of  the  commonwealth,  and  the  said  fee  shall  be  apportioned 

9  by  the  clerk  among  the  cases  in  which  he  is  so  summoned. 

1  Section  57.     If  it  appears  on  oath  that  a  salaried  officer  of  the  officers  may 

2  commonwealth    has   attended    court   as    a  witness    in    behalf   of    the  ei^^en°rs^ 

3  commonwealth,  at  a  place  other  than  his  residence,  and  that  his  neces-  Rs*'m'§ 3^7. 

4  sary  expenses  have  been  increased  by  such  attendance,  the  court  or  ^'  ^-  ^°'^'  ^  *^- 

5  trial  justice  may  allow  such  increased  necessary  expenses,  not  exceeding 

6  one  dollar  and  fifty  cents  a  day  in  all,  for  such  actual  and  necessary 

7  attendance. 

1  Section  58.    Whoever  receives  a  witness  fee  or  allowance  for  in-  Penalty. 

2  creased  necessary  expenses  in  violation  of  any  provision  of  the  three  p.  s.' 199'' §  3s. 

3  preceding  sections  shall  be  punished  by  a  fine  of  not  more  than  one  r^^l.  204, 1 49! 

4  hundred  dollars.    Every  clerk  of  a  court  and  trial  justice  shall  report 

5  forthwith  to  the  district  attorney  for  his  county  every  violation  of 

6  said  sections  which  comes  to  his  knowledge,  and  said  district  attorneys 

7  shall  institute  prosecutions  therefor. 

1  Section  59.     If  witnesses  are  in  attendance  in  two  or  more  criminal  ^por'tTowi'^^f 

2  cases  pending  at  the  same  time  before  the  same  court,  they  shall  not  be  585'5'"8o'l*2 


2690  FEES  OF  CERTAIN  OFFICERS.  [ChAP.   262. 

G.  s.  157,  §  20.  allowed  full  travel  and  attendance  in  each  case,  but  the  justice  or  clerk  3 

p.  s.'i99.'§  39.   of  the  court  or  trial  justice  may  reduce  and  apportion  the  same,  allowing  4 

■    ■  ^°'*'  ^  ^°'  at  least  one  t^a^'el  and  attendance.  5 

to'be^refused7n      SECTION  60.     If,  on  the  trial  of  a  criminal  case,  it  appears  that  a  wit-  1 

isM.'ss'g*^'''*'     ness  has  induced  the  defendant  to  commit  the  crime  with  which  he  is  2 

p.'l.'mMo.'  charged  with  intent  to  appear  as  a  witness  against  him,  the  court  or  3 

R.  L.  204,  §  51.  magistrate  may  in  his  discretion  refuse  to  allow  him  his  fees.  4 

p,Schase°*'°        Section  61.     A  sheriff,  deputy  sherifP  or  other  officer  who  takes  the  1 

issirisa  §  3.    certificates  of  witnesses  in  criminal  cases  shall  not  purchase  or  discount  2 

p' I' 199 'I If'  ^^  have  any  interest  in  orders  drawn  or  demands  upon  the  treasury  by  3 

R.  L.  204.  §  52.  such  witnesscs.  4 

fals^certm-           SECTION  62.     Whocver,  with  intent  to  defraud,  signs  or  procures  to  1 

nesses?etc'.'       bc  signcd  a  Certificate  of  attendance  or  travel  as  a  witness  before  a  2 

cf^s'fl7§  23    court,  trial  justice  or  refererice  founded  upon  a  rule  of  court,  in  any  case  3 

R  L  ^204  \^53  '"  which  the  witness  did  not  so  attend,  or  for  a  greater  niunber  of  days  4 

'  than  he  actually  attended,  or  for  a  greater  number  of  miles  than  he  5 

actually  traveled,  upon  which  certificate  the  attendance  or  travel  so  6 

claimed  is  allowed  as  a  part  of  the  expenses  of  prosecution,  shall  forfeit  7 

thirty  dollars  for  each  offence,  to  be  recovered  on  complaint  or  indict-  8 

ment  to  the  use  of  the  county,  or  by  action  of  tort  to  the  use  of  any  9 

person  against  whom  such  excessive  costs  were  taxed,  with  four  times  10 

the  whole  amount  taxed  for  attendance  or  travel  on  such  false  certifi-  11 

cate,  and  double  costs  in  the  action  of  tort.    Such  complaint,  indict-  12 

ment  or  action  shall  be  commenced  within  two  years  after  the  offence  13 

is  committed.  14 

to'^ddrnquenr       SECTION  63.     If   the   administration   of   justice   or   the   progress   of  1 

^||'^lso"§  1.    business  in  criminal  proceedings  is  delayed,  obstructed  or  prevented  2 

p' I' 199' 1 43'  '^y  ^^®  negligence  of  a  magistrate  in  certifying  and  retiu-ning  recogni-  3 

R.  L.  204.  §  54.  zances,  records  or  other  official  papers  which  it  is  his  duty  to  transmit  to  4 

a  higher  court,  or  in  omitting  the  formalities  required  by  law,  the  dis-  5 

trict  attorney,  with  the  approval  of  the  court,  may  refuse  to  allow  the  6 

fees,  either  in  whole  or  in  part,  to  which  such  magistrate  would  other-  7 

wise  be  entitled.  8 

to^compiainanl      SECTION  64.     If  the  court  fiuds  that  a  complaint  in  a  criminal  case  1 

R^^L.  204, 1 55!  is  unfounded,  frivolous  or  malicious,  it  may  refuse  to  allow  any  fees  to  2 

the  complainant.  3 

REFERENCES. 

As  to  who  shall  pay  fees  of  officers  in  connection  with  arrest  for  trespassing,  etc., 
on  railroad  property,  Chap.  160,  §  221. 

Fees  of  jurors  and  officers,  in  connection  with  determining  insanity  of  a  person  by 
a  jury.  Chap.  123,  §  61. 

Fees  of  judges,  physicians,  etc.,  in  connection  with  commitment,  etc.,  of  insane 
persons,  Chap.  123,  §  73. 

§  14.  The  fees  for  commitment  upon  surrender  by  baU  are  the  same  as  under 
this  section,  Chap.  226,  §  22. 

§  29.  Witness  fees  before  board  of  parole,  when  acting  as  advisory  board  of  par- 
dons, Chap.  127,  §  154. 


CiLiP.  263.1 


EIGHTS   OF  PERSONS  ACCUSED   OF  CKIME. 


2691 


PART    IV. 


CRIMES,  PUNISHMENTS  AND  PROCEEDINGS  IN  CRDIINAL 

CASES. 


TITLE   I. 

CRIMES  AND  PUNISmiENTS. 

Chapter  263.  Rights  of  Persons  accused  of  Crime. 

Chapter  264.  Crimes  against  Governments. 

Chapter  265.  Crimes  against  the  Person. 

Chapter  266.  Crimes  against  Property. 

Chapter  267.  Forgery  and  Crimes  against  the  Currency. 

Chapter  26S.  Crimes  against  Public  Justice. 

Chapter  269.  Crimes  against  Pubhc  Peace. 

Chapter  270.  Crimes  against  Public  Health. 

Chapter  271.  Crimes  against  Pubhc  Pohcy. 

Chapter  272.  Crimes  against  Chastity,  Morality,  Decency  and  Good  Order. 

Chapter  273.  Desertion,  Non-Support  and  Bastardy. 

Chapter  274.  Felonies,  Accessories  and  Attempts  to  commit  Crimes. 


CHAPTER    263. 

RIGHTS  OF   PERSONS   ACCUSED  OF   CRIME. 


Sect. 

1.  Person    arrested    to    be    informed    of 

charge. 

2.  Penalty  for  arrest  on  false  pretence. 

3.  Action  for  false  imprisonment  limited. 

4.  Prosecution  of  crimes. 

5.  Accused  entitled  to  counsel,  etc. 


Sect. 

6.  Persons  indicted,  how  convicted. 

7.  When  former  acquittal  a  bar. 

8.  When  former  acquittal  not  a  bar. 

9.  No  person  to  be  punished  imtil  con- 

victed. 


1  Section  1.    \Mioever  is  arrested  by  virtue  of  process,  or  whoever  is 

2  taken  into  custody  by  an  officer,  has  a  riglit  to  know  from  the  officer 

3  who  arrests  or  claims  to  detain  him  the  true  ground  on  wliich  tlte  arrest 

4  is  made;  and  an  officer  who  refuses  to  answer  a  question  relative  to  the 

5  reason  for  such  arrest,  or  answers  such  question  untruly,  or  assigns  to 

6  the  person  arrested  an  untrue  reason  for  the  arrest,  or  neglects  upon 

7  request  to  exltibit  to  the  person  arrested,  or  to  any  other  person  acting 

8  in  his  behalf,  the  precept  by  virtue  of  which  such  arrest  has  been  made, 

9  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  by 
10  imprisonment  for  not  more  than  one  year. 


Person 

arrested  to  be 
informed  of 
charge. 
lS.i2,  224,  §  1. 
G.  S.  158,  §  1. 
P.  S.  200.  §  1. 
R.  L.  205,  §  1. 


2692 


EIGHTS   OF  PERSONS  ACCUSED   OF  CRIME. 


[CH-VP.   263. 


Penalty  for 
arrest  on  false 
pretence. 
1852,  224,  §  2. 
G.  S.  15S,  §  2. 
P.  S.  200,  §  2. 
R.  L.  205,  §  2. 


Section  2.  An  officer  who  arrests  or  takes  into  or  detains  in  custody 
a  person,  pretending  to  have  a  process  if  he  has  none,  or  pretending  to 
have  a  different  process  from  that  which  he  has,  shall  be  punished  by  a 
fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  for  not 
more  than  one  year. 


Action  for 
false  imprison- 
ment limited. 
1914,  126. 


Section  3.  No  action,  except  for  use  of  excessive  force,  shall  lie 
against  any  officer  other  than  the  arresting  officer,  by  reason  of  the  fact 
that,  in  good  faith  and  in  the  performance  of  his  duties,  he  participates 
in  the  arrest  or  imprisonment  of  any  person  believed  to  be  guilty  of  a 
crime  unless  it  can  be  shown  that  such  other  officer  in  the  performance 
of  his  duties  took  an  active  part  in  the  arrest  or  imprisonment  as  aforesaid, 
either  by  ordering  or  directing  that  said  arrest  or  imprisonment  take 
place  or  be  made,  or  by  actually  initiating  the  making  and  carrying  out 
of  said  arrest  and  imprisonment.  No  action,  except  for  use  of  excessive 
force,  shall  lie  against  any  bystander  assisting  an  officer  in  making  an 
arrest,  at  the  request  of  the  officer. 


Section  4.     No  person  shall  be  held  to  answer  in  any  court  for  an 


Prosecution 
of  crimes. 

Rfgh'ts!'art.  12.  alleged  crime,  except  upon  an  indictment  by  a  grand  jury  or  upon  a 
a?t°'i2  )^*^'     "Complaint  before  a  district  court  or  trial  justice  or  in  proceedings  before     3 
R.  S.T23.  §  1.    a  court-martial.  4 


G.  S.  158,  §  3. 


P.  S.  200,  §  3. 


R.  L.  205,  §  3. 


Section  5.     A  person  accused  of  crime  shall  at  his  trial  be  allowed  to 


Accused  en- 
titled to 

De"iti lughts,  ^^  heard  by  counsel,  to  defend  himself,  to  produce  witnesses  and  proofs 
art.  12.  in  jjis  favor  and  to  meet  the  witnesses  produced  against  him  face  to  face. 

(Const.  Rev.  art.  12.)  G.  S.  158,  §  4.  R.  L.  205,  |  4. 

R.  S.  123,  §  2.  P.  S.  200,  §  4. 


Persons 
indicted,  how 
con\'icted. 
R.  S.  123,  I  3. 
G.  S.  158,  §  5. 
P.  S.  200,  §  5. 
R.  L.  205,  §  5. 


Section  6.    A  person  indicted  for  a  crime  shall  not  be  convicted  thereof  1 

except  by  confessing  his  guilt  in  open  court,  by  admitting  the  truth  of  2 

the  charge  against  him  by  his  plea  or  demurrer  or  by  the  verdict  of  a  3 

jury  accepted  and  recorded  by  the  court.  i  op.  a.  g.  499.  4 


when  former 
acquittal 
a  bar. 

R.  S.  123,  5  4. 
G.  S.  158,  §  6. 
P.  S.  200,  §  6. 
R.  L.  205,  §  6. 
12  Gray,  171. 
Ill  Mass.  404. 
113  Mass.  200. 
100  Mass.  276. 


Section  7.  A  person  shall  not  be  held  to  answer  on  a  second  indict- 
ment or  complaint  for  a  crime  of  which  he  has  been  acquitted  upon  the 
facts  and  merits;  but  he  may  plead  such  acquittal  in  bar  of  any  sub- 
sequent prosecution  for  the  same  crime,  notwithstanding  any  defect  in 
the  form  or  substance  of  the  indictment  or  complaint  on  which  he  was 

acquitted.  220  Mass.  142. 


When  former 
acquittal  not 
a  bar. 

R.  S.  123,  §  5. 
C;.  S.  158,  §  7. 
P.  S.  200,  §  7. 
R.  L.  205.  §  7. 

12  Pick.  496. 

13  Allen,  554. 


Section  8.  If  a  person  has  been  acquitted  by  reason  of  a  variance 
between  the  indictment  or  complaint  and  the  proof,  or  by  reason  of  a 
defect  of  form  or  substance  in  the  indictment  or  complaint,  he  may  be 
again  arraigned,  tried  and  convicted  for  the  same  crime  on  a  new  indict- 
ment or  complaint,  notwithstanding  such  former  acquittal. 


105  Mass.  189. 


220  Mass.  142. 


No  person  to 
be  punished 


Section  9.     A  person  shall  not  be  punished  for  a  crime  unless  he  has  1 

i°s'  m't^e^*^'  been  legally  convicted  thereof  by  a  court  having  competent  jurisdiction  2 

G.  s.  158,  §  8.    of  the  cause  and  of  the  person.  3 

p.  S.  200,  §  8.  R.  L.  205,  §  8. 


Ch.u>.  264.] 


CRIMES   AG.AJNST   GOVERNltENTS. 


2693 


CHAPTER    264. 

CRIMES   AGAINST   GOVERNMENTS. 


Sect. 

1.  Treason  defined. 

2.  Penalty. 

3.  Misprision  of  treason.     Penalty. 

4.  Proof  of  treason. 

5.  Penalty  for  misuse  of  flag,  etc. 

6.  Exceptions  to  section  five. 

7.  Misuse  of  foreign  flags,  etc. 

8.  Display  of  foreign  flag. 


Sect. 
9.  Manner    of    playing,      etc.,     national 
anthem. 

10.  Discrimination  against  persons  wearing 

uniform  of  United  States  army,  etc., 
prohibited  in  places  of  amusement, 
etc. 

11.  Promotion  of  anarchy  prohibited. 

12.  Arrest  'vv-ithout  warrant. 


1  Section  1.     Treason  against  the  commonwealth  shall  consist  only  in  Treason 

2  levying  war  against  it,  or  in  adhering  to  the  enemies  thereof,  giving  them  Ded.^of  Rights, 

3  aid  and  comfort;  it  shall  not  be  bailable. 

i2.  3. 

~    "  ,  §1;  212,  §72. 


art.  25 


(Const.  Rev.  art.  25.) 
C.  L.  15,  §  12;  263,  §  2. 
1696,  255,  §  1. 
1744-5,  6,  §  1. 


1776-7,  32.  I 

R.  s.  124,  §  i: 

1852,259,  §4. 

G.  S.  159,  §  1;  170.  §54. 


1871,61. 
P.  S.  201, 
R.  L.  206,  §  1. 


1  Section  2.     Whoever   commits   treason  against  the  commonwealth  Penalty. 

2  shall  be  punished  by  imprisonment  in  the  state  prison  for  life.  c.  h.  263,  §  2. 

1696,  255,  I  1.  1776-7,  32,  §  2.  1852,  259,  §  1.  P.  S.  201,  5  2. 

1744-5,  6,  §  1.  R.  S.  124,  §  2.  G.  S.  159,  §  2.  R.  L.  206,  §  2. 


1  Section  3.     Whoever,  having  knowledge  of  the  commission  of  treason,  Misprision  of 

2  conceals  the  same  and  does  not  as  soon  as  may  be  disclose  and  make  known  PenaUy. 

3  such  treason  to  the  governor,  or  to  a  justice  of  the  supreme  judicial  or  i^''^^'32, 


§§4,5. 


4  superior  court,  shall  be  guilty  of  misprision  of  treason,  and  shall  be§|;}?g;||; 

5  punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  by  imprison-  P-  |-  |oi,'  §  3^ 

6  ment  in  the  state  prison  for  not  more  than  five  years,  or  in  jail  for  not 

7  more  than  two  years. 


1  Section  4.     No  person  shall  be  convicted  of  treason  except  by  the  Proof  of 

2  testimony  of  two  witnesses  to  the  same  overt  act  of  treason  whereof  he  1776^7,' 32, 

3  stands  indicted,  unless  he  confesses  the  same  in  open  court. 

R.  S.  124,  §  4.  G.  S.  159,  §  4.  P.  S.  201,  §  4.  R.  L.  206,  §  4. 


§11. 


Section  5.     Wlioever  publicly  mutilates,  tramples  upon,  defaces  or  penalty  for 
treats  contemptuously  the  flag  of  the  United  States  or  of  INIassachusetts,  "tc"^" "' ^^^' 
whether  such  flag  is  public  or  private  property,  or  whoever  displays  such  Jfgf ;  1I3; 
flag  or  any  representation  thereof  upon  which  are  words,  figures,  adver-  f^^-^  ^06,  §  5. 
tisements  or  designs,  or  whoever  exposes  to  public  view,  manufactures,  lao^;  232,  §2^ 
sells,  exposes  for  sale,  gives  away  or  has  in  possession  for  sale  or  to  give  1914]  570! 
awav  or  for  use  for  any  purpose,  any  article  or  substance,  being  an  article  191s',  257',  §  1. 

-  -  ...     -       1919,5. 


8  of  merchandise  or  a  receptacle  of  merchandise  or  articles  upon  which  is  1920,'  2. 

9  attached,  through  a  wrapping  or  otherwise,  engraved  or  printed  in  any  |op^a'g.^470. 

10  manner,  a  representation  of  the  United  States  flag,  or  whoever  uses  any  205U.S.34. 

11  representation  of  the  arms  or  the  great  seal  of  the  commonwealth  for  any 

12  advertising  or  commercial  purpose,  shall  be  punisJied  by  a  fine  of  not  less 

13  than  ten  nor  more  than  one  hundred  dollars  or  by  imprisonment  for 

14  not  more  than  one  year,  or  both;  but  a  flag  belonging  to  a  grand  army 


2694 


CRIMES  AGAINST  GOVERNMENTS. 


[Chap.  264. 


post,  to  a  camp  of  the  United  Spanish  War  Veterans,  or  belonging  to  or  15 
used  in  the  service  of  the  United  States  or  the  commonwealth,  may  have  16 
the  names  of  battles  and  the  name  and  number  of  the  organization  to  17 
which  such  flag  belongs  inscribed  thereon.  Words,  figures,  advertise-  18 
ments  or  designs  attached  to,  or  directly  or  indirectly  connected  with,  19 
the  flag  or  any  representation  thereof  in  such  manner  that  the  flag  or  its  20 
representation  is  used  to  attract  attention  to  or  advertise  such  words,  21 
figures,  advertisements  or  designs,  shall  for  the  purposes  of  this  section  22 
be  deemed  to  be  upon  the  flag.  23 


Exceptions 
to  section  5. 

1916,  36. 

1917,  289. 


Section  6.  The  preceding  section  shall  not  apply  to  publications 
issued  solely  for  the  purpose  of  giving  information  in  relation  to  the  flag, 
or  of  promoting  patriotism  or  of  encom-aging  the  study  of  American 
history,  or  to  any  newspaper,  periodical,  book,  pamphlet,  certificate, 
diploma,  warrant,  or  commission  of  appointment  to  office,  ornamental 
picture,  article  of  jewelry,  or  stationery  for  use  in  correspondence,  on 
which  is  printed,  painted,  or  placed  the  flag  of  the  United  States  not  con- 
nected with  any  advertisement  and  not  used  for  advertising  purposes; 
but  no  words,  figures,  designs  or  other  marks  of  any  kind  shall  be  placed 
upon  the  flag  or  representation  thereof. 


Misuse  of 
foreign  Sags, 

1912, 197. 


Section  7.  ^Mioever  publicly  mutilates,  tramples  upon,  defaces  or 
treats  contemptuously  the  flag  or  emblem  of  a  foreign  country  at  peace 
with  the  United  States,  whether  such  flag  or  emblem  is  public  or  pri- 
vate property,  or  whoever  displays  such  flag  or  emblem  or  any  repre- 
sentation thereof  upon  which  are  words,  figiues,  advertisements  or  designs, 
shall  be  punished  by  a  fine  of  not  less  than  five  nor  more  than  fifty  dollars. 


Display  of 
foreign  fiag. 
1895,  115. 
R.  L.  206,  §  6. 


Section  8.  Whoever  displays  the  flag  or  emblem  of  a  foreign  country 
upon  the  outside  of  a  state,  county,  city  or  town  building  or  public  school- 
house  shall  be  punished  by  a  fine  of  not  more  than  twenty  dollars;  but, 
except  as  to  public  schoolhouses,  this  section  shall  not  apply  when  a 
citizen  of  such  foreign  country  becomes  the  guest  of  the  United  States 
or  of  the  commonwealth,  if  the  governor  by  proclamation  authorizes  the 
flag  of  the  country  of  which  such  guest  is  a  citizen  to  be  displayed  upon 
public  buildings. 


Manner  of  play- 
ing, etc.. 
national 
anthem. 
1917,311, 
§U,2. 


Section  9.     Whoever  plays,   sings  or  renders  the   "Star  Spangled  1 

Banner"  in  any  public  place,  theatre,  motion  picture  hall,  restaurant  2 

or  cafe,  or  at  any  public  entertainment,  other  than  as  a  whole  and  sepa-  3 

rate  composition  or  number,  without  embellishment  or  addition  in  the  4 

way  of  national  or  other  melodies,  or  whoever  plays,  sings  or  renders  the  5 

"Star  Spangled  Banner",  or  any  part  thereof,  as  dance  music,  as  an  exit  6 

march  or  as  a  part  of  a  medley  of  any  kind,  shall  be  punished  by  a  fine  7 

of  not  more  than  one  hundred  dollars.  8 


Discrimination 
against  persons 
wearing  uni- 
form of  United 
States  army, 
etc.,  prohiliited 
in  places  of 
amusement, 

1911,  460. 


Section  10.  No  proprietor,  manager  or  employee  of  a  theatre  or 
other  public  place  of  entertainment  or  amusement  shall  make,  or  cause 
to  be  made,  any  discrimination  against  any  person  lawfully  wearing  the 
uniform  of  the  army,  navy,  revenue  cutter  service  or  marine  corps  of  the 
United  States  because  of  that  uniform,  and  whoever  makes  or  causes  to 
be  made  such  discrimination  shall  be  punished  by  a  fine  of  not  more  than 
five  hundred  dollars. 


Chap.  265.] 


CRIMES  AGAINST  THE   PERSON. 


2695 


1  Section  11.    ^Mioever  by  speech  or  by  exhibition,  distribution  or  Promotion  of 

2  promulgation  of  any  written  or  printed  document,  paper  or  pictorial  hibUe/  ^''°' 

3  representation  advocates,  advises,  counsels  or  incites  assault  upon  any  ^®^®'  ^®^'  ^  ^" 

4  public  official,  or  the  killing  of  any  person,  or  the  unlawful  destruc- 

5  tion  of  real  or  personal  property,  or  the  o\'ertlu-ow  by  force  or  violence 

6  of  the  government  of  the  commonwealth,  shall  be  pimished  by  a  fine  of 

7  not  more  than  one  thousand  dollars  or  by  imprisonment  for  not  more 
S  than  three  years,  or  both;  provided,  that  this  section  shall  not  be  con- 
9  strued  as  reducing  the  penalty  now  imposed  for  the  violation  of  any  law. 

1  Section  12.    Any  person  found  in  the  act  of  violating  any  provision  Arrest  with- 

2  of  the  preceding  section  may  be  arrested  without  a  warrant.  igio^IgM  2. 


CHAPTER    265 


CRIMES  AGAINST  THE  PERSON. 


Sect. 

1.  Murder  defined. 

2.  Punishment  for  murder. 

3.  Murder  in  a  duel  out  of  commonwealth. 

4.  Accessory  in  duel. 

5.  Former  conviction,  etc.,   out  of  com- 

monwealth a  bar,  when. 

6.  Engaging  in  duel,  challenging,  etc. 

7.  Accepting   or   carrying   challenge    and 

abetting  a  duel. 

8.  Posting  another  for  not  fighting  duel. 

9.  Prize  fighting. 

10.  Aiding,  advasing,  etc.,  prize  fight. 

11.  Leaving  commonwealth  to  fight. 

12.  Boxing  matches  for  reward. 

13.  Manslaughter. 

14.  Mayhem. 

15.  Assault  with  intent  to  murder,  maim, 

etc. 

16.  Attempt  to  murder  by  poisoning,  etc. 

17.  Punishment  of  robbery  in  certain  cases. 

18.  Assault  with  intent  to  rob,  etc.,  being 

armed. 


21. 


22. 
23. 


Sect. 

19.  Robbery,  not  being  armed. 

20.  Assault  with  intent  to  rob,  etc.,   not 

being  armed. 
Confining  or  putting  in  fear  a  person 

for  the  purpose  of  stealing,  etc. 
Rape. 
Rape  of  child. 

24.  Assault  with  intent  to  commit  rape. 

25.  Attempt    to    extort   money,    etc.,    by 

threat. 

26.  Kidnapping,  etc. 

27.  Venue. 

28.  Poisoning  food,  medicine,  spring,  etc. 

29.  Assaults  not  before  mentioned. 

30.  Negligence,  etc.,  of  person  having  care 

of  public  conveyance. 

31.  Driver   of   stage   coach,    etc.,    leaving 

horses  without  charge,  etc. 

32.  Penalty  for  throwing,  etc.,  of  glass  in 

public  streets,  etc. 

33.  Wearing  of  hat-pins  regulated. 


1  Section  1.     Murder  committed  with  deliberately  premeditated  malice  Mmder 

2  aforethought,  or  with  extreme  atrocity  or  cruelty,  or  in  the  commission  i784,'^69. 

3  or  attempted  commission  of  a  crime  punishable  with  death  or  imprison-  {gjg-  \^'  ^  ^^■ 

4  ment  for  life,  is  murder  in  the  first  degree.    Murder  which  does  not  appear  ^  I'I^q 

5  to  be  in  the  first  degree  is  murder  in  the  second  degree.    Petit  treason  PJ"^.?! 

6  shall  be  prosecuted  and  punished  as  murder.    The  degree  of  murder  shall  §§  1-3. 7'. 

7  be  found  by  the  jury. 


R.  L.  207,  §  1. 
16  Gray,  1. 
9  Allen,  585. 


12  Allen,  1.55. 
118  Masa.  36. 
126  Mass.  253. 


165  Mass.  45. 
174  Mass.  245. 
184  Mass.  255. 


189  Mass.  457. 
219  Mass.  1. 
235  Mass.  562. 


1  Section  2.     Whoever  is  guilty  of  murder  in  the  first  degree  shall  j^-,""^'uJde?* 

2  suffer  the  punishment  of  death,  and  whoever  is  guilty  of  murder  in  the  b-  i- 94, 

3  second  degree  shall  be  punished  by  imprisonment  in  the  state  prison  for  c.  l.  u, 

4  life.  1697,  17.  17S4,  44,  §  1. 


1804,  123,  §  1. 

1858,  154,  §§  4,  5. 

P.  S.  202,  §§  4,  5. 

R.  S.  125,  §  1. 

G.  S.  160,  5§  4,  5. 

R.  L.  207,  §  2. 

2696 


CRIMES   AGAINST  THE    PERSON. 


[Ch.\p.  265. 


SlTuVSf*  Section  3.     An  inhabitant  or  resident  of  this  commonwealth  who,  1 

commonweaUh.  \yy  previous  appointment  or  engagement  made  within  the  same,  fights  a  2 

G. |._iTO.'|9.     duel  outside  its  jurisdiction,  and  in  so  doing  inflicts  a  mortal  wound  upon  3 

R.  L.'aoT,  §  3.    a  person  whereof  he  dies  within  the  commonwealth  shall  be  guilty  of  4 

murder  within  this  commonwealth,  and  may  be  indicted,  tried  and  con-  5 

victed  in  the  county  where  the  death  occurs.  6 


Accrasory  Section  4.    An  inhabitant  or  resident  of  this  commonwealth  who,  by 

olii?o'li*d  previous  appointment  or  engagement  made  within  the  same,  becomes 
R  L  fo7  1 4°"  ^^^^  second  of  either  party  in  such  duel  and  is  present  as  a  second  when 
a  mortal  wound  is  inflicted  upon  a  person  whereof  he  dies  within  this 
commonwealth  shall  be  an  accessory  before  the  fact  to  murder  in  this 
commonwealth,  and  may  be  indicted,  tried  and  convicted  in  the  county 
where  the  death  occurs. 


Former  con- 
viction, etc, 
out  of  com- 
monwealth a 
bar,  when. 
R.  S.  125,  §  5. 
G.  S.  160.  §  11. 
P.  S.  202,  §  11. 
R.  L.  207,  §  6. 


Section  5.     A  person  indicted  under  either  of  the  two  preceding  sec-  1 

tions  may  plead  a  former  conviction  or  accjuittal  of  the  same  crime  in  2 

any  other  state  or  country;  and  if  his  plea  is  admitted  or  established,  3 

it  shall  be  a  bar  to  all  further  proceedings  against  him  for  the  same  crime  4 

within  this  commonwealth.  5 


Engaging  in 
duel,  challeng- 
ing, etc. 
1719-20,  1. 
1728-9.  1.5.  §  1. 
17S4,  9,  §§  1,  2. 
1804,  123,  §  6. 
R.  S.  125,  §6. 
G.  S.  IBO,  §  12. 
P.  S.  202,  §  12. 
R.  L.  207,  §  6. 
1914.  635. 

1918,  257, 
§464. 

1919,  5. 

1920,  2. 


Section  6.     ^Mioever  engages  in  a  duel  with  a  deadly  weapon,  al-  1 

though  no  homicide  ensues,  or  challenges  another  to  fight  such  duel,  or  2 

sends  or  delivers  a  written  or  verbal  message  purporting  or  intended  to  3 

be  such  challenge,  although  no  duel  ensues,  sliall  be  punished  by  imprison-  4 

ment  in  the  state  prison  for  not  more  than  twenty  years  or  by  a  fine  of  5 

not  more  than  one  thousand  dollars  and  imprisonment  in  jail  for  not  more  6 

than  two  and  one  half  years;  and  shall  be  incapable  of  holding  or  of  7 

being  elected  or  appointed  to  any  place  of  honor,  profit  or  trust  under  8 

the  constitution  or  laws  of  the  commonwealth  for  twenty  years  after  9 

such  conviction.  10 


Accepting  or 
carrying  chal- 
lenge and  abet- 
ting a  duel. 
1804,  123,  §  7. 
R.  S.  125,  §  7. 
G.  S.  100,  §  13. 
P.  S.  202,  §  13. 
R,  L.  207,  §  7. 


Section  7.  Whoever  accepts  or  knowingly  carries  or  delivers  any 
such  challenge  or  message,  whether  a  duel  ensues  or  not,  and  whoever  is 
present  at  the  fighting  of  a  duel  with  deadly  weapons  as  an  aid,  second  or 
surgeon,  or  advises,  encourages  or  promotes  such  duel,  shall  be  punished 
by  imprisonment  for  not  more  than  one  year  or  by  a  fine  of  not  more  than 
five  hundred  dollars;  and  shall  be  incapable,  as  provided  in  the  preceding 
section,  for  five  years  after  such  conviction. 


ro°r^not^fightiig'  Section  8.  Whoever  posts  another,  or  in  writing  or  print  uses  any 
11%'  125  ?  s  reproachful  or  contemptuous  language  to  or  concerning  another,  for  not 
p'  I'  ■'0°'  1 14 '  fighting  a  duel  or  for  not  sending  or  accepting  a  challenge  shall  be  punished 
R.  L.  207,  §  s.  by  imprisonment  for  not  more  than  sLx  months  or  by  a  fine  of  not  more 
than  one  hundred  dollars. 


Prize  fighting. 
1849,49.  §  1. 
G.  a.  160,  §  1.5. 
P.  S.  202,  §  15. 
R.  L.  207,  §  9. 
7  Gray,  324. 
1  Op.  A.  G. 
240. 


Section  9.     WTioever,  except  as  provided  in  sections  thirty-two  to  1 

fifty,  inclusive,  of  chapter  one  hundred  and  forty-seven,  by  pre\ious  2 

appointment  or  arrangement,  engages  in  a  fight  with  another  person  3 

shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  4 

than  ten  years  or  by  a  fine  of  not  more  than  five  thousand  dollars.  5 


Aiding,  advis- 
ing, etc.,  prize 
light 


Section  10.     Wlioever,  except  as  provided  in  sections  tliirty-two  to     1 
1849;  49,  §2.     fifty,  inclusive,  of  chapter  one  hundred  and  forty-seven,  is  present  at    2 


Caxp.  265.]  CRIMES  against  the  person.  2697 

.3  such  fight  as  an  aid,  second  or  surgeon,  or  advises,  encourages  or  promotes  g.  s.  loo,  §  16. 

4  such  fight,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  r.  l.^207,'§\o. 

5  more  than  five  years  or  by  a  fine  of  not  more  than  one  thousand  dollars  i9}s;257,'§464 

6  and  by  imprisonment  in  jail  for  not  more  than  two  and  one  half  years.     ]flf,'  ^ 

7  Gray,  324,  '  " 

1  Section  11.     An  inhabitant  or  resident  of  this  commonwealth  who,  Lea^-ing  oom- 

2  by  previous  appointment  or  engagement  made  in  the  same,  leaves  the  tS^fighT'"' 

3  same  and  engages  in  a  fight  with  another  person  outside  the  limits  thereof  ^**|'  f^^  i^j, 

4  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  S- l  l^' V/i 

5  than  five  years  or  by  a  fine  of  not  more  than  five  thousand  dollars.  los  Mass'.  302,' 

1  Section  12.     ^Mioever,  except  as  provided  in  sections  thirty-two  to  Boxing  matches 

2  fifty,  inclusive,  of  chapter  one  hundred  and  forty-seven,  engages  in  or  5896?422!'' 

3  gives  or  promotes  a  public  boxing  match  or  sparring  exliibition,  or  en-  fgy^jfa^j  l^f ■ 

4  gages  in  a  private  boxing  match  or  sparring  exliibition,  for  which  the 

5  contestants  have  received  or  have  been  promised  any  pecuniary  reward, 

6  remuneration  or  consideration  whatsoever,  directly  or  indirectly,  shall  be 

7  punished  by  a  fine  of  not  more  than  two  hundred  dollars  or  by  imprison- 
S  ment  for  not  more  than  three  months,  or  both. 

1  Section  13.     ^\nioever  commits  manslaughter  shall  be  punished  by  Manslaughter. 

2  imprisonment  in  the  state  prison  for  not  more  than  twenty  years  or  by  isw!  123,^^3. 

3  a  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in  jail  r'I'iIs'II' 

4  for  not  more  than  two  and  one  half  years.  G.  s,  160,  §  is. 

p.  S.  202,  §  IS.  I91S.  257,  §  464.        102  Mass,  153: 

R.  L.  207,  §  13.  1919,  5.  131  Mass.  423. 

1914,  035.  1920,  2.  13S  Mass.  165. 

1  Section  14.     Whoever,  with  malicious  intent  to  maim  or  disfigure,  Mayhem. 

2  cuts  out  or  maims  the  tongue,  puts  out  or  destroys  an  eye,  cuts  or  tears  i8o'i,  123,  §4. 

3  off  an  ear,  cuts,  slits  or  mutilates  the  nose  or  lip,  or  cuts  off  or  disables  a  §■  f  \j^[  |  Jg- 

4  limb  or  member,  of  another  person,  and  whoever  is  privy  to  such  intent,  S'l^jot  Vu 

5  or  is  present  and  aids  in  the  commission  of  such  crime,  shall  be  punished  ioi4,  ess! 

0  by  imprisonment  in  the  state  prison  for  not  more  than  twenty  years  1919,5. 

7  or  by  a  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  133  Mass.  571. 

8  in  jail  for  not  more  than  two  and  one  half  years. 

1  Section  15.     \Mioever  assaults  another  with  intent  to  commit  mur-  Assault  with 

2  der,  or  to  maim  or  disfigure  his  person  in  any  way  described  in  the  pre-  JTer"!  m.arm™etc. 

3  ceding  section,  shall  be  punished  by  imprisonment  in  the  state  prison  Jgot' 123^5^5 

4  for  not  more  than  ten  years  or  by  a  fine  of  not  more  than  one  thousand  i8i|.  ^.f^l  ■*■ 

5  dollars  and  imprisonment  in  jail  for  not  more  than  two  and  one  half  g!  s!  loo!  1 20! 
„  p.  s.  202,  §  20. 

6  years.  R.  l.  207,  §  15. 

1914,  6.33.  1919.  5.  10  Gray,  H. 

1918,  257,  §  464.  1920,  2.  162  Mass.  495. 

1  Section  16.     ^Vhoever  attempts  to  commit  murder  by  poisoning.  Attempt  to 

2  drowning  or  strangling  another  person,  or  by  any  means  not  consti-  po'Json[ngfetc. 

3  tuting  an  assault  with  intent  to  commit  murder,  shall  be  punished  by  R^^l.'fls,  §12. 

4  imprisonment  in  the  state  prison  for  not  more  than  twenty  years  or  by  p|'2o?'l2i' 

5  a  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in  jail  ^-  L-  207,  §  10. 

„    J.  ,  ^,  ^  ,  ,      ,(.  ^  •*  1914,633, 

b  tor  not  more  than  two  and  one  halt  years. 

1918,  237,  §  464.  1919,5.  1920,2.  170  Mass.  IS. 

1       Section  17.     ^^^loever,    being    armed    with    a    dangerous    weapon.  Punishment  of 


2  assaults  another  and  robs,  steals  and  takes  from  his  person  money  or  J!; 


robber.v  in  cer- 
tain cases. 


2698 


CRnrES  AGAINST  THE   PERSON. 


[Ch-\p.  265. 


ISIS,  124.  i  1.    other  property  which  mav  be  the  siibiect  of  larcenv,  with  intent  if  re-    3 

R   S   125   5  13         ..'■  .  *  .*■ 

1839, 127.  ■  sisted  to  kill  or  maim  the  person  robbed,  or,  bemg  so  armed,  wounds  4 
p.' I.' 202,' I  If.'  or  strikes  the  person  robbed,  shall  be  punished  by  imprisonment  in  the  5 
wii]  S4^'  ^  ^^'  state  prison  for  life  or  for  any  term  of  years. 

17  Mass.  359.  6  Met.  565.  11  Allen,  20.  165  Mass.  133. 


6 


Assault  with 
intent  to  rob, 
etc.,  being 
armed. 
1761-2,  21,  §  1. 


Section  IS.     ^Mioever,    being    armed    with    a    dangerous    weapon,  1 

assaults  another  with  intent  to  rob  or   murder   shall  be   punished   by  2 

imprisonment  in  the  state  prison  for  not  more  than  twenty  years.  3 

1784,52,  §2.  1818,  124,  §3.  G.  S.  IRO,  §  23.  R.  L.  207, J  IS. 


1804,  143,  §  9. 


R.  S.  125,  §  14. 


P.  S.  202,  §  23. 


S  Gray,  387. 


Robberj',  not 
being  armed. 
C.  L.  12.  §4. 
1692-3, 
18,  §  4. 

1711-12,  2,  §  1. 
1761-2,  21,  §  1. 
1784,  52,  §  2. 
1804,  143,  §  7. 


Section  19.  ^Mioever,  not  being  armed  with  a  dangerous  weapon, 
by  force  and  violence,  or  by  assault  and  putting  in  fear,  robs,  steals 
and  takes  from  the  person  of  another  money  or  other  property  M'hich 
may  be  the  subject  of  larceny,  shall  be  punished  by  imprisonment  in 
the  state  prison  for  life  or  for  any  term  of  years. 


R.  S.  125,  I  15. 
G.  S.  160,  I  24. 


p.  S.  202,  ! 
R.  L.  207, 


24. 
il9. 


7  Mass.  242. 
S  Gush.  215. 


12  .\llen,  540. 
126  Mass.  252. 


Assault  with 
intent  to  rob, 
etc.,  not  being 
armed. 

1804,  143,  5  9. 
R.  S.  125,  §  16. 
G.  S.  160,  §  25. 


Section  20.     \\'hoever,  not  being  armed  with  a  dangerous  weapon,  1 

assaults  another  with  force  and  violence  and  with  intent  to  rob  or  steal  2 

shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  3 

ten  years.  p.  s.  202, 1 2s.  4 

R.  L.  207,  §  20.  12  Gush.  270.  14  Gray,  393.  167  Mass.  434. 


Confining  or 
putting  in  fear 
a  person  for 
the  purpose  of 
stealing,  etc. 
1876,  202. 
P.  S.  202,  §  26. 
R.  L.  207,  §21. 

1918,  257, 
§446. 

1919,  5. 

1920,  2. 

165  Mass.  457. 

167  Mass.  434. 

168  Mass.  222. 


Section  21.  ^Mioever,  with  intent  to  commit  larceny  or  any  felony,  1 
confines,  maims,  injures  or  wounds,  or  attempts  or  threatens  to  kill,  2 
confine,  maim,  injure  or  wound,  or  puts  any  person  in  fear,  for  the  3 
purpose  of  stealing  from  a  building,  bank,  safe,  vault  or  other  depository  4 
of  money,  bonds  or  other  valuables,  or  by  intimidation,  force  or  threats  5 
compels  or  attempts  to  compel  any  person  to  disclose  or  surrender  the  6 
means  of  opening  any  building,  bank,  safe,  vault  or  other  depository  7 
of  money,  bonds  or  other  valuables,  or  attempts  to  or  does  break,  burn,  8 
blow  up  or  otherwise  injure  or  destroy  a  safe,  vault  or  other  depository  9 
of  money,  bonds  or  other  valuables  in  any  building  or  place,  shall,  10 
whether  he  succeeds  or  fails  in  the  perpetration  of  such  larceny  or  felony,  11 
be  punished  by  imprisonment  in  the  state  prison  for  life  or  for  any  term  12 
of  vears.  13 


Rape 
C.t. 

15, 

§15. 

1697, 

18. 

1784, 

68. 

1805, 

97, 

§1. 

Section  22.  '\^^loever  ^a^^shes  and  carnally  knows  a  female  by  1 
force  and  against  her  will  shall  be  punished  by  imprisonment  in  the  2 
state  prison  for  life  or  for  any  term  of  years.  3 

R.  S.  125,  §  18.  P.  S.  202,  §  27.  R.  L.  207,  §  22. 

1852,  259,  §  2.  1886,  305.  19  Pick.  479. 

G.  S.  160,§26.  1888,391.  4  Met.  354. 

1871,  55.  1893,  466,  §  1.  4  Gray,  7. 


8  Gray,  489. 
105  Ma.ss.  376. 
110  Mass.  405. 


Rape  of  child. 
C.  L.  15,  §  17. 
1697,  IS. 
1784,  68. 
1805,97,  §  1. 
R.  S.  12,5,  5  IS. 
1852,  259,  §  2. 
G.  S.  160,  §  26. 
1871,  55. 


Section  23.    ^Mioever  unlawfully  and  carnally  knows  and  abuses  1 

a  female  child  under  sLxteen  shall  be  punished  by  imprisonment  in  2 

the  state  prison  for  life  or  for  any  term  of  years,  or,  except  as  other-  3 

wise  provided,  for  any  term  in  any  other  penal   institution   in   the  4 

commonwealth.  5 

§23, 


P.  S.  202,  §  27. 
1.S86,  305. 


1888,  391. 
1893,  466,  §  2. 


R.  L.  207 
4  Gray,  7 


165  Mass.  66. 
170  Mass.  194. 


hitenftJ'^"'  Section  24.     Whoever  assaults  a  female  with  intent  to  commit  a     1 

i784™iiV§^3'     ^^P^  shall  be  punished  by  imprisonment  in  the  state  prison  for  life  or    2 


Chap.  265.]  ceimes  ag.unst  the  person.  2699 

3  for  any  term  of  years  or  by  a  fine  of  not  more  than  one  thousand  dollars  isos,  97,  §  3. 

4  and  imprisonment  in  jail  for  not  more  than  two  and  one  half  years.  it's.'  125,  §  19. 

G.  S.  160,  I  27.  1918,  257,  §  464.  143  Mass.  32. 

P.  S.  202,  §  28.  1919,  5.  162  Mass.  466. 

R.  L.  207,  §  24.  1920,  2.  163  Mass.  66. 

1914,  G35.  116  Mass.  346. 

1  Section  25.    WTioever,  verbally  or  by  a  written  or  printed  communi-  Attempt  to 

2  cation,  maliciously  threatens  to  accuse  another  of  a  crime  or  offence,  or  ltc%y°threat. 

3  by  such  communication  maliciously  threatens  an  injury  to  the  person  or  fs.53,«2'.^  ^^' 

4  property  of  another,  with  intent  thereby  to  extort  money  or  any  pecuniary  p.  |;  202,'  |  If.' 

5  advantage,  or  with  intent  to  compel  the  person  so  threatened  to  do  any  f^^-  If.'  ^  ^^■ 

6  act  against  his  ^N-ill,  shall  be  punished  by  imprisonment  in  the  state  prison  Jg}!!"'^*®^- 

7  for  not  more  than  fifteen  years,  or  in  the  house  of  correction  for  not  more  1920!  2. 

8  than  two  and  one  half  years,  or  by  a  fine  of  not  more  than  five  thousand  12  auL',  449. 

9  dollars,  or  both.  loi  Mass.  27. 

106  Mass.  1.  122  Mass.  19.  145  Mass.  181. 

108  Mass.  15,  307,  488.  128  Mass.  55.  148  Mass.  27 

121  Mass.  57.  130  Mass.  59.  163  Mass.  291. 

1  Section  26.     Whoever,  \\-ithout  lawful  authority,  forcibly  or  secretly  Kidnapping, 

2  confines  or  imprisons  another  person  within  this  commonwealth  against  b.'^l.  94,  §  10. 

3  his  will,  or  forcibly  carries  or  sends  such  person  out  of  this  commonwealth,  ^j^  1|  |  Jo- 

4  or  forcibly  seizes  and  confines  or  inveigles  or  kidnaps  another  person,  with  ^^^''  *|^  §  ',i 

5  intent  either  to  cause  him  to  be  secretly  confined  or  imprisoned  in  this  g  s!  leb!  §  so. 

6  commonwealth  against  his  Mill,  or  to  cause  him  to  be  sent  out  of  this  1901, 42"8. 

7  commonwealth  against  his  will  or  in  any  way  held  to  service  against  his  12  Me^t^sV,     ' 

8  will,  and  whoever  sells  or  in  any  manner  transfers  for  any  term  the  service  ^  ^^'^'  ^'*' 

9  or  labor  of  a  negro,  mulatto  or  other  person  of  color  who  has  been  unlaw- 

10  fully  seized,  taken,  inveigled  or  kidnapped  from  this  commonwealth  to 

1 1  any  other  state,  place  or  country,  shall  be  punished  by  imprisonment  in 

12  the  state  prison  for  not  more  than  ten  years  or  by  a  fine  of  not  more  than 

13  one  thousand  dollars  and  imprisonment  in  jail  for  not  more  than  two 

14  years.    Whoever  commits  any  offence  described  in  this  section  with  the 

15  intent  to  extort  money  or  other  valuable  thing  thereby  shall  be  punished 

16  by  imprisonment  in  the  state  prison  for  not  more  than  twenty-five  years. 

1  Section  27.    A  crime  described  in  the  preceding  section  may  be  tried  ^*?;"*j2s  «  ,, 

2  in  the  county  where  committed  or  in  any  county  in  or  to  which  the  person  g-  §•  leo!  §  su 

3  so  seized,  taken,  inveigled,  kidnapped  or  sold,  or  whose  services  are  so  r'.l.  207,  §27. 

4  sold  or  transferred,  is  taken,  confined,  held,  carried  or  brought;    and 

5  upon  the  trial  of  any  such  crime,  the  consent  thereto  of  the  person  so 

6  taken,  inveigled,  kidnapped  or  confined  shall  not  be  a  defence  unless  the 

7  jury  finds  that  such  consent  was  not  obtained  by  fraud  or  extorted  by 

8  duress  or  threats. 

1  Section  28.     Whoever  mingles  poison  with  food,  drink  or  medicine  Poisoning  food, 

2  with  intent  to  kill  or  injure  another  person,  or  wilfully  poisons  any  spring,  ^ring',°e^tc. 

3  well  or  reservoir  of  water  with  such  intent,  shall  be  punished  by  imprison-  §:  1:  leo]  I  if. 

4  ment  in  the  state  prison  for  life  or  for  any  term  of  years.  ^-  ^-  ^°^'  ^  ^^• 

R.  L.  207,  §  28.  9  Allen,  271.  108  Mass.  487.  140  Mass.  443. 

1  Section  29.    Whoever  assaults  another  with  intent  to  commit  a  felony  Assaults  not 

2  shall,  if  the  punishment  of  such  assault  is  not  hereinbefore  provided,  be  nfentfoned. 

3  punished  by  imprisonment  in  the  state  prison  for  not  more  than  ten  §;  |;  joo]  I  tfi. 

4  years  or  by  a  fine  of  not  more  than  one  thousand  dollars  and  imprison-  r  |;.2(?7,V2'J. 

5  ment  in  jail  for  not  more  than  two  and  one  half  years. 

1914,  635.         1918,  257,  §  464.         1919,  5.         1920,  2. 


2700 


CRIMES  AGAINST  PROPERTY. 


[Chap.  266. 


Negligence, 
etc.,  of  per- 
son having  care 
of  public 
conveyance. 
1853,  418. 
G.  S.  160,  5  35. 
P.  S.  202,  §  34. 
R.  L.  207,  §  30. 
1914,  035. 
1918,257,5464. 

1919,  S. 

1920,  2. 

Driver  of  stage 
coach,  etc.. 
leaving  horses 
without 
charge,  etc. 
1.826,  140. 
R.  S.  51,  §4. 
G.  S.  IfiO.  §  3(i. 
P.  S.  202,  §  35. 
R.  L.  207,  I  31. 


Section  30.  Whoever,  having  the  management  or  control  of  or  over 
a  steamboat  or  other  pubHc  conveyance  used  for  the  common  carriage 
of  persons,  is  guilty  of  gross  neghgence  in  or  relative  to  the  management 
or  control  of  such  steamboat  or  other  public  conveyance,  while  being  so 
used  for  the  common  carriage  of  persons,  shall  be  punished  by  a  fine  of 
not  more  than  five  thousand  dollars  or  by  imprisonment  in  jail  for  not 
more  than  two  and  one  half  years. 

Section  31.  A  driver  of  a  vehicle  for  the  conveyance  of  passengers 
for  hire,  who,  when  a  passenger  is  within  or  upon  such  vehicle,  leaves  the 
horses  thereof  without  a  suitable  person  to  take  the  charge  and  guidance 
of  them,  or  without  fastening  them  in  a  safe  and  prudent  manner,  shall 
be  punished  by  imprisonment  for  not  more  than  two  months  or  by  a  fine 
of  not  more  than  fifty  dollars. 


Penalty  for 
throwing,  etc., 
of  glass  in 
public  streets, 
etc. 

1913,  214. 

1914,  76. 


Section  32.  Whoever  throws  or  drops  glass  on  a  public  way,  or  on  or 
near  a  bathing  beach,  or  on  a  public  way,  sidewalk  or  reservation  in  the 
immediate  neighborhood  of  a  bathing  beach,  shall  be  punished  by  a  fine  of 
not  more  than  fifty  dollars,  or  by  imprisonment  for  not  more  than  one 
month. 


Wearing  of 
hat-pins 
regulated. 
1913,  256. 


Section  33.    Whoever  wears  in  public  a  hat-pin  protruding  more  than  1 

one  half  inch  beyond  the  crown  of  the  hat,  unless  the  point  thereof  is  2 

so  protected  as  to  be  incapable  of  causing  injury  to  others,  shall  be  3 
punished  by  a  fine  of  not  more  than  one  hundred  dollars. 


REFERENCE. 
Throwing  rubbish,  etc.,  in  public  way.  Chap.  272,  §  60. 


CHAPTER    266. 

CRIMES  AGAINST  PROPERTY. 


Sect. 

Sect 

1. 

Burning  dwelling  house,  etc. 

13. 

2. 

Burning  in  night  time. 

14. 

3. 

Burning  in  day  time. 

4. 

Burning  of  building  of  le.?.?  value  than 

15. 

one  thousand  dollars,  etc.,  or  bridge, 

16. 

ship,  etc. 

17. 

5. 

Burning  of  wood,  fence,  corn,  grain. 

tree,  soil,  etc. 

IS. 

6. 

Wife   liable   for   burning   property   of 
husband. 

4  . 

Wanton  or  reckless  injury  or  destruc- 
tion of  woods  by  fire. 

19. 

8. 

Negligence  in  cases  of  fires. 

20. 

9. 

Same  subject. 

21. 

U). 

Burning  Insured  property. 

22. 

11. 

Injury,  etc.,  to  fire  alarm,  apparatus, 
etc.,  before  fire. 

12. 

Injury,  etc.,  to  fire  alarm,  apparatus, 
etc.,  preventing  alarm  or  extinction 

23. 

of  fire  during  fire. 

24. 

Injuring  fire  engines. 

Burglary,  being  armed  or  making  an 

assault. 
Burglary,  not  being  armed,  etc. 
Breaking,  in  night,  building  or  ship. 
Entering,  in  night,  without  breaking, 

or  breaking,  etc.,  in  day  time. 
Entering  dwelling  house  in    night  or 

breaking,  etc.,  without  putting  in 

fear,  in  day  time. 
Breaking  and  entering   railroad    car, 

etc. 
Stealing  in  building,  ship,  etc. 
Refusal  to  deliver  stolen  property,  etc. 
Detention  of  persons  unlawfully  en- 
tering places  where  poultry  is  kept. 

Penalty. 
Embezzling,  etc.,  of  property  at  a  fire 

to  be  deemed  larceny. 
SteaUng  at  a  fire. 


Caxp.  266. 


CRIMES  AGAINST  PROPERTY. 


2701 


Sect. 

25.  Larceny  from  the  person. 

26.  Subjects  of  larceny. 

27.  Penalty  for  stealing  tools   of  contrac- 

tors, builders,  etc. 

28.  Theft  or  concealment  of  motor  vehi- 

cles, etc.    Penalty. 

29.  Disposition  of  prosecutions  under  sec- 

tion 28. 

30.  Larceny,  etc. 

31.  Fraudulently  obtaining  signature. 

32.  Fraudulent  conversion  of  property  by 

captain  of  vessel. 

33.  False  pretences  to  constitute  larceny 

in  certain  cases. 

34.  Same  subject. 

35.  Limitation  of  sections  30,  31  and  34. 

36.  Persons  obtaining  credit  by  false  pre- 

tences to  be  guilty  of  larceny. 

37.  Drawing     and     uttering     fraudulent 

checks,  drafts  and  orders. 

38.  Wrongful  detention  of  money  by  car- 

riers and  their  employees. 

39.  Larceny  and  destruction  of  wills. 

40.  Common  and  notorious  thief. 

41.  Second  conviction  of  larceny  of  a  bi- 

cycle. 

42.  Larceny  of  paper  designed  for  bank 

bills,  etc. 

43.  Printer,    etc.,    retaining    such    paper, 

etc.,  with  intent  to  pass,  etc. 

44.  Larceny  of  things  annexed  to  the  realty. 

45.  Same  subject. 

46.  Larceny  of  beast  or  bird. 

47.  Penalty  for  wrongfully  removing  collar 

from  or  stealing  or  poisoning  a  dog. 

48.  Officer  making  arrest  to  secure,  etc., 

goods  stolen. 

49.  Making,  holding,  using,  etc.,  burgla- 

rious instrument. 

50.  Fraud  or  embezzlement  by  employee 

in  treasury. 

51.  Fraud  or  embezzlement  by  city,  town 

or  county  officer. 

52.  Fraud  or  embezzlement  by  bank  officer 

or  employee. 

53.  E\'idence  in  fraud  or  embezzlement  by 

accomplice  of  officer  or  employee  of 
bank,  etc. 

54.  Penalty  for  receiving  deposits  by  in- 

solvent banks,  etc. 

55.  Embezzlement  by  receiver,  etc. 

56.  Embezzlement  by  broker,  etc. 

57.  Embezzlement  by  trustee,  etc. 

58.  Embezzlement  from  voluntary  associa- 

tion. 

59.  Same  subject. 

60.  Buying  or  receiving  stolen  goods. 

61.  Effect  of  restitution  of  stolen  property 

bought,  etc. 

62.  Common  receiver  of  stolen  goods. 

63.  Unlawful  taking  of  animal,  etc. 

64.  Fraudulent  luring  of  horses,  carriages, 

automobiles,  etc. 

65.  Unauthorized  issue  of  stock. 

66.  Fraudulent  issue  of  stock,  etc. 


Sect. 

67.  False  entry,  etc.,  in  book  of  corpora- 

tion. 

68.  Books  of  corporation  as  evidence. 

69.  Unlawful  use  of  insignia. 

70.  Same  subject. 

71.  Fraudulent  use  of  names,  etc. 

72.  Certain  publications  forbidden,  etc. 

73.  Obtaining  goods  under  false  pretence 

of  carrying  on  business. 

74.  Fraudulent  use  of  credit  of  corpora- 

tion. 

75.  Obtaining  property  by  trick,  etc. 

76.  Gross  fraud,  etc.,  at  common  law. 

77.  Sale  of  certain  articles  as  sterUng  and 

coin  silver. 

78.  False  marking    of    articles    made    of 

gold,  etc.,  prohibited. 

79.  False  representation  of  imitations  of 

fur  prohibited. 
SO.  Conveying  encumbered  land  without 
notice. 

81.  Selling  attached  land  without  notice. 

82.  Concealing  mortgaged  personal  prop- 

erty, etc. 

83.  Sale  by  mortgagor  without  consent  of 

mortgagee. 

84.  Sale  by  hirer,  etc.,  of  personalty  witli- 

out  consent. 

85.  Sale,  etc.,  of  collateral  security  before 

debt  due,  etc. 

86.  Buying,  etc.,  hired  property,  etc. 

87.  Sale,  etc.,  of  personalty  held  on  con- 

ditional sale. 

88.  Consignee,  etc.,  fraudulently  deposit- 

ing or  pledging  property,  etc. 

89.  Falsely  pretending  to  hold  a  degree, 

etc.,  or  granting  degrees  without 
authority.  Use  of  word  "univer- 
sity" or  "college." 

90.  Falsely  claiming  endorsement,  etc. 

91.  Untrue  and  misleading  advertisements 

prohibited. 

92.  Publishing    of    false    or    exaggerated 

statements  prohibited,  etc. 

93.  Obtaining  or  giving  false  pedigree  of 

animals. 

94.  Malicious    destruction    of    boundary 

monument,  milestone,  etc. 

95.  Malicious    destruction    of    historical 

monument. 

96.  Defacing,  etc.,  building  of  the  com- 

monwealth. 

97.  Defacing  building  of  county. 

98.  Wilful    injury,    etc.,  to    schoolhouse, 

church,  etc.,  or  furniture,  etc. 

99.  Defacement  of  books,  etc.,  of  libraries. 

100.  Detention  of  books  of  libraries. 

101.  Maliciou.s  explosion. 

102.  Throwing  explosives  into  buildings  or 

placing  on  railways,  etc. 

103.  Throwing  oil  of  vitriol,  coal  tar,  etc. 

104.  Injury  to  building. 

105.  Pulling  down  stone  walls  or  fences. 

106.  Injury,  etc.,  to  ico  taken  as  merchan- 

dise. 


2702 


CRIMES  AGAINST  PROPERTY. 


[Ch.\p.  266. 


Sect. 

107.  Injury,  etc.,  to  bridge,  etc. 

108.  Destroying  vessel  to  defraud  owner  or 

insurer. 

109.  Fitting  out  vessel  with  intent  to  de- 

stroy it,  etc. 

110.  False  invoice,  etc.,  of  cargo  to  defraud 

insurer,  etc. 

111.  False  protest,  etc. 

112.  Malicious  killing,  etc.,  of  cattle. 

113.  Cutting   timber,   wood,    shrubs,   etc., 

on  land  of  another. 

114.  Malicious  injuries  to  trees,  fences,  etc. 

115.  Trespass  in  orchard,  garden,  etc. 

116.  Picking  of  berries,  etc.,  by  unnatural- 

ized foreign  born  persons  in  Barn- 
stable and  Plymouth  counties  re- 
stricted. 

117.  Entering  orchard,  etc.,  with  intent,  etc. 

118.  Suffering  animals  to  trespass  on  land. 

119.  Transportation  of  injurious  insects. 

120.  Trespass    on    improved    or    enclosed 

land. 

121.  Entry  on  land  with  firearms. 

122.  Defacement    of    notice    against    tres- 

passers. 


Sect. 

123.  Trespassing  upon  land  of  certain  insti- 

tutions. 

124.  Malicious  injury  to  legal  notice. 

125.  Malicious  injury  to  show  bill,  etc. 

126.  Defacing  natural  scenery. 

127.  Malicious  or  wanton  injuries  to  per- 

sonal property. 

128.  Defacing  milk  cans. 

129.  Injury  to  property  at  state  prison. 

130.  Injury  to  property  at  other  penal  in- 

stitutions. 

131.  Arrest  and  detention  without  warrant 

of  trespasser  on  Sunday. 

132.  Killing  or  frightening  pigeons. 

133.  Injury,  etc.,  to  property  of  Humane 

Society. 

134.  Setting  fire  to  coal  pit.  etc.,  on  wood- 

land in  New  Bedford,  etc.,  between 

March  and  October. 
Mooring  vessel,  etc.,  to  a  buoy,  etc. 
Injury,  etc.,  to  baggage  by  hackman, 

etc. 
Raising  water  so  as  to  injure  mill. 
Injury  to  dam,  reservoir,  etc. 


135. 
136. 


137. 
138. 


Burning  dwell- 
ing house,  etc. 
C.  L.  52,  §  1. 
1705-6,  9. 
1784,  58, 
§§  1.2. 
1804,  131, 
§§  1,  2. 
1830,  72,  §  1. 


Section  1.    Whoever  wilfully  and  maliciously  burns  the  dwelling  1 

house  of  another  or  a  building  adjoining  such  dwelling  house,  or  wilfully  2 

and  maliciously  sets  fire  to  a  building  by  the  burning  whereof  such  3 

dwelling  house  is  burned,  shall  be  punished  by  imprisonment  in  the  state  4 

prison  for  life  or  for  any  term  of  years.  5 


R.S.  126.  §§1,2. 
1852,  259,  §  3. 
G.S.  101,  §  1. 


1871,  76. 

P.  S,  203,  §  1. 

R.  L.  208,  §  1. 


3  Cush.  525. 
10  Cush.  478. 
110  Mass.  403. 


131  Mass.  421. 

150  Mass.  332. 

151  Mass.  491. 


Burning  in 
night  time. 
C.  L.  52,  §  1. 
1705-6.  9. 
1784,58,  §  2. 
1804.  131,  §  2. 
R.  S.  126.  §  3. 
G.  S.  161,  §  2. 
1371,76. 
P.  S.  203,  §  2. 
R.  L.  208,  §  2. 
10  Cush.  480. 
2  Allen.  159. 
134  Mass.  527. 
172  Mass.  187. 


Section  2.     Whoever  wilfully  and  maliciously  burns  in  the  night  1 

time  a  meeting  house,  church,  court  house,  town  house,  college,  academy,  2 

jail  or  other  building,  which  has  been  erected  for  public  use,  or  a  banking  3 

house,  warehouse,  store,  manufactory  or  mill  of  another  being  with  the  4 

property  therein  of  the  value  of  one  thousand  dollars,  or  a  barn,  stable,  5 

shop  or  office  of  another  within  the  curtilage  of  a  dwelling  house,  or  any  6 

other  building  by  the  burning  whereof  any  building  mentioned  in  this  7 

section  is  burned  in  the  night  time,  shall  be  punished  by  imprisonment  S 

in  the  state  prison  for  life  or  for  any  term  of  years.  9 


Burning  in 
day  time. 
C.  L.  52,  §  1. 
1705-6,  9. 
1784,  58.  §  2. 
1S04,  131,  §  3. 
R.  S.  126,  §  4. 


Section  3.    Whoever  wilfully  and  maliciously  burns  in  the  day  time  1 

a  building,  the  burning  of  which  in  the  night  time  might  be  pimished  under  2 

the  preceding  section,  shall  be  punished  by  imprisonment  in  the  state  3 

prison  for  not  more  than  ten  years.  4 

G.  S.  161,  §  3.  P.  S.  203,  §  3.  R.  L.  208,  §  3. 


Section  4.     Whoever  wilfully  and  maliciously  burns  a  banking  house,     1 


Burning  of 

building  of  less  .  ,  i  »         i  ^y» 

value  than  one  warcliouse,  store,  manufactory,  mill,  barn,  stable,  shop,  office,  outhouse 

thousand  i      -i  i-  i.  i  i  •    i     ■  .1  m       1    • 

dollars,  etc..  _  or  Other  Duilding  or  another,  which  is  not  described  m  section  two,  or  a 
etc. "  ®'^'  ^  ^'  bridge,  lock,  dam,  flume,  ship  or  vessel  of  another,  shall  be  punished  by 
ms^tfg;  ^'     imprisonment  in  the  state  prison  for  not  more  than  ten  years. 

1784,  58,  §  2.  G.  S.  161,  §  4.  1  Met.  258.  1.W  Mass.  332. 

1804,  131.  §  3.  P.  S.  203,  §  4.  1  Gray,  493.  151  Mass.  491. 

R.S.  126,  §5.  R.  L.  208,  §4.  15  Gray,  480.  167  Mass.  420. 


CH-VP.   266.]  CRIMES  AGAINST  PROPERTi'.                                                                 2703 

1  Section  5.     WTioever  wilfully  and  maliciously  burns  or  otherwise  de-  Burning  of 

2  stroys  or  injures  a  pile  or  parcel  of  wood,  boards,  timber  or  other  lumber,  com'!'g'ra'in!' 

3  or  any  fence,  bars  or  gate,  or  a  stack  of  grain,  hay  or  other  vegetable  c.^l.  5i!'§'2';' 

4  product,  or  any  vegetable  product  severed  from  the  soil  and  not  stacked,  fyo.i-e  9 

5  or  any  standing  tree,  grain,  grass  or  other  standing  product  of  the  soil,  H®,^'/^' 

6  or  the  soil  itself,  of  another,  shall  be  punished  by  imprisonment  in  the  1804, 131.  §  4. 

7  state  prison  for  not  more  than  five  years  or  by  a  fine  of  not  more  than  five  g.  s!  lai!  §  5! 

8  hundred  dollars  and  imprisonment  in  jail  for  not  more  than  one  year.        r.  l.2c?s,\^5. 

1  Section  6.     The  preceding  sections  shall  apply  to  a  married  woman  wife  iiabie  for 

2  who  commits  any  of  the  crimes  therein  described,  although  the  property  ert^y°oThS-'^ 

3  burned  or  set  fire  to  belongs  partly  or  wholly  to  her  husband.  ^'"^^' 

R.  S.  126,  I  7.  G.  S.  161,  §  6.  P.  S.  203,  §  G.  R.  L.  208.  §  G. 

1  Section  7.     Wlioever  by  wantonly  or  recklessly  setting  fire  to  any  wanton  or 

2  material,  or  by  increasing  a  fire  already  set,  causes  injury  to,  or  the  de-  ordestruction 

3  struction  of,  any  growing  or  standing  wood  of  another  shall  be  punished  fi'e"""'^^  ^^ 

4  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  ^^l-  ^gg  j , 

5  not  more  than  six  months.  1912,419,  §  1. 

1  Section  8.     Whoever  wilfully  or  without  reasonable  care  sets  or  Negligence 

2  increases  a  fire  upon  land  of  another  whereby  the  property  of  another  is  Se'iJ"'"  °^ 

3  injured,  or  whoever  negligently  or  wilfully  suffers  any  fire  upon  his  own  ^^l'  los!  1 1'. 

4  land  to  extend  beyond  the  limits  thereof,  whereby  the  woods  or  property  ^^^--  *^^'  ^  ^■ 

5  of  another  are  injured,  shall  be  punished  by  a  fine  of  not  more  than  two 

6  hundred  and  fifty  dollars. 

1  Section  9.     Whoever,  in  a  town  which  accepts  this  section  or  has  same  subject. 

2  accepted  corresponding  provisions  of  earlier  laws,  sets  a  fire  on  land  §§^1%.   ' 

3  which  is  not  owned  or  controlled  by  him  and  before  leaving  the  same  ^-  ^-  ^°*'  ^  ®' 

4  neglects  to  entirely  extinguish  such  fire,  or  whoever  wilfully  or  negli- 

5  gently  sets  a  fire  on  land  which  is  not  o\\Tied  or  controlled  by  him  whereby 

6  property  is  endangered  or  injured,  or  whoever  wilfully  or  negligently 

7  suffers  a  fire  upon  his  own  land  to  escape  beyond  the  limits  thereof  to 

8  the  injury  of  another,  shall  be  punished  by  a  fine  of  not  more  than  one 

9  hundred  dollars  or  by  imprisonment  in  jail  for  not  more  than  one  month, 

10  or  both,  and  shall  also  be  liable  for  all  damages  caused  thereby.    Such 

11  fine  shall  be  equally  divided  between  the  complainant  and  the  town. 

12  This  section  shall  not  apply  to  cities. 

1  Section  10.     Wlioever,  with  intent  to  injure  the  insurer,  burns  a  Burning  in- 

2  building  or  any  goods,  wares,  merchandise  or  other  chattels  belonging  to  r/^  is?""!"'^ 

3  himself  or  another,  and  which  are  at  the  time  insured  against  loss  or  p.I.^os.'It.' 

4  damage  by  fire,  shall  be  punished  by  imprisonment  in  the  state  prison  fi^'jiagg' 272° 

5  for  not  more  than  twenty  years.  i3i  Mass.  421. 

155  Mass.  68.  177  Mass.  267.  184  Mass.  484.  196  Mass.  342 

1  Section  11.     Wlioever,  \nthin  twenty-four  hours  prior  to  the  burn-  injury,  etc.. 

2  ing  of  a  building  or  other  property,  wilfully,  intentionally  and  without  f.pp.l'rau^c^c., 

3  right  cuts  or  removes  a  bell  rope  or  a  wire  or  conduit  connected  with  a  iJj",'''!!^,';''-^  j 

4  fire  alarm  signal  system  or  injures  or  disables  any  fire  alarm  signal  box  g.s.'wi,'|s. 

5  or  any  part  of  such  svstem  in  the  vicinitv  of  such  building  or  propertv,  r'.  l.*'26s,'§  ii 

■^    ^  -  '  o  J-      1         .  I   i9i8_257,§447 


2704 


CRIMES  AGAINST   PROPERTY. 


[ClLU>.   266. 


1919,  5. 

1920,  2. 


or  cuts,  injures  or  destroys  an  engine,  hose  or  other  fire  apparatus  in  6 
said  Ancinity  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  7 
dollars  or  by  imprisonment  for  not  more  than  two  years.  8 


Injury,  etc., 
to  fire  alarm, 
apparatus,  etc., 
preventing 
alarm  or  ex- 
tinction of  fire 
during  fire, 
1855,  446,  §  2. 
G.  S.  IGl,  §  9. 
P.  S.  203.  §  9. 
R.  L.  208,  §  12. 
1918.257,  §448. 

1919,  5. 

1920,  2. 


Section  12.  Whoever,  during  the  burning  of  a  building  or  other  1 
property,  wilfully  and  maliciously  cuts  or  removes  a  bell  rope  or  a  wire  2 
or  conduit  connected  with  a  fire  alarm  signal  system  or  injures  or  disables  3 
any  fire  alarm  signal  box  or  any  part  of  such  system  in  the  vicinity  of  4 
such  building  or  property,  or  otherwise  prevents  an  alarm  being  givep,  5 
or  whoever  cuts,  injures  or  destroys  an  engine,  hose  or  other  fire  appara-  6 
tus,  in  said  Ancinity,  or  otherwise  wilfully  and  maliciously  prevents  or  7 
obstructs  the  extinction  of  a  fire  shall  be  punished  by  imprisoimient  in  8 
the  state  prison  for  not  more  than  seven  years  or  in  jail  for  not  more  9 
than  two  and  one  half  years  or  by  a  fine  of  not  more  than  one  thousand  10 
dollars.  11 


eng?ne°^  ^"^^  SECTION  13.     Whocvcr  waiitouly  or  maliciously  iujurcs  E  firo  eiigiue  or 

r's'iI'5  23  other  fire  apparatus  shall  be  punished  by  a  fine  of  not  more  than  five 
p' I' Is' 1 26'  liundred  dollars  or  by  imprisonment  for  not  more  than  two  years,  and 
R^  L.  208,  §  is.  shall  be  further  ordered  to  recognize  with  sufficient  surety  or  sureties 
for  his  good  behavior  during  such  term  as  the  court  shall  order. 


1918,  257, 
§449. 


1919,  5. 


1920,  2. 


Burglary, 
being  armed 
or  making 
an  assault. 
C.L.  13,  §  1. 
1692-3,  18,  §  4. 
1715-16.  1. 
1769-70, 
16,  §  2. 
1784,  48. 
1805.  101,  §  1. 
R.  S.  126,  §  9. 
1839.  127. 
G.  S.  161,  §  10. 
1871,  76. 


Section  14.     Whoever  breaks  and  enters  a  dwelling  house  in  the  1 

night  time,  with  intent  to  commit  a  felony,  or  whoever,  after  haA-ing  2 

entered  with  such  intent,  breaks  such  dwelling  house  in  the  night  time,  3 

any  person  being  then  lawfully  therein,  and  the  ofl^ender  being  armed  4 

with  a  dangerous  weapon  at  the  time  of  such  breaking  or  entry,  or  so  5 

arming  himself  in  such  house,  or  making  an  actual  assault  on  a  person  6 

lawfully  therein,  shall  be  punished  by  imprisonment  in  the  state  prison  7 

for  life  or  for  any  term  of  not  less  than  ten  years.  8 


p.  S.  203,  §  10. 
1888,  135.  §  1. 


R.  L.  208.  §  14. 
1  Mass.  47B. 


22  Pick.  1. 
105  Mass.  588. 


Burglary,  not 
being  armed, 
etc. 

C.  L.  13,  §  1. 
1692-3,  18,  §  4. 
1715-16,  1. 
1769-70, 
16.  §3. 
1784.  48. 
1805,  101.  §  2. 
1830,  72,  §  2. 
R.  S.  126,  §  10. 
G.  S.  161,  I  11. 
P.  S.  203,  §  1 1. 
1888,  135,  §  2. 
R.  L.  208,  §  15. 
4  Met.  357. 


Section  15.     Whoever  breaks  and  enters  a  dwelling  house  in  the  1 

night  time,  with  the  intent  mentioned  in  the  preceding  section,  or,  hav-  2 

ing  entered  with  such  intent,  breaks  such  dwelling  house  in  the  night  3 

time,  the  offender  not  being  armed,  nor  arming  himself  in  such  house,  4 

with  a  dangerous  weapon,  nor  making  an  assault  upon  a  person  lawfully  5 

therein,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  6 

more  than  twenty  years  and,  if  he  shall  have  been  preAnously  convicted  7 

of  any  crime  named  in  this  or  the  preceding  section,  for  not  less  than  five  8 

years.  9 


Breaking,  in 
night,  building 
or  ship. 
C.  L.  204,  §  3. 
1692-3,  18,  §  4. 


Section  16.  Whoever,  in  the  night  time,  breaks  and  enters  a  build-  1 
ing,  ship  or  vessel,  with  intent  to  commit  a  felony,  shall  be  punished  by  2 
imprisonment  in  the  state  prison  for  not  more  than  twenty  years.  3 


1804,  143,  §  4. 
R.  S.  126  §  11. 
1839,31. 
1851,  156.  I  1. 
G.  S.  161,  §  12. 


P.  S.  203.  §  12. 
R.  L.  20S,  §  16. 
20  Pick.  356. 
3  Met.  316. 
6  Met.  236. 


12  Met.  240. 
108  Mass.  1. 
130  Mass.  45. 
135  ilas3.  540. 


Sght?  without  Section  17.  Whoever,  in  the  night  time,  enters  ■nnthout  breaking,  1 
bfeakmg'etc  ^^  brcaks  and  enters  in  the  day  time,  a  building,  ship  or  vessel,  with  2 
in  day  time.  '    intent  to  commit  a  felony,  the  owner  or  any  other  person  lawfully  therein    3 


Cn.iP.  266.]  CRIMES  against  property.  2705 

4  being  put  in  fear,  shall  be  punished  by  imprisonment  in  the  state  prison  c.  l.  204.  §  3. 

5  for  not  more  than  ten  years.  i784, 66,  §  s.  1692-3,  is,  §  4. 

1804,  143,  §  5.  1851.156,  §2.  P.  S.  203,  §  13. 

R.  .S.  126,  §  12.  G.  S.  161,  §  13.  R.  L.  208,  §  17. 

1  Section  18.     Wlioever,  in  the  night  time,  enters  a  dwelling  house  Entering 

2  without  breaking,  or  breaks  and  enters  in  the  day  time  a  building,  ship  fiTnlghf  or°'^° 

3  or  vessel,  with  intent  to  commit  a  felony,  no  person  lawfully  therein  ^."houTpuuii^ 

4  being  put  in  fear,  shall  be  punished  by  imprisonment  in  the  state  prison  jfa'''timi° 

5  for  not  more  than  ten  years  or  by  a  fine  of  not  more  than  five  hundred  i784,66,  §8. 

6  dollars  and  imprisonment  in  jail  for  not  more  than  two  years. 

R.  S.126,§13.  1869,386.  122  Mass.  454. 

1851,  156,  §  3.  P.  S.  203,  |  15.  210  Mass.  443. 

G.  S.  161,  §  14.  R.  L.  208,  §  18. 

1  Section  19.     Wlioever  breaks  and  enters,  or  enters  in  the  night  time  Breaking  and 

2  without  breaking,  a  railroad  car,  with  intent  to  commit  a  felony,  shall  be  road"car,'^etc. 

3  punished  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years  §*i"58.™'  ^'^' 

4  or  by  a  fine  of  not  more  than  five  hundred  dollars  and  imprisonment  in  |- 1;  |°^g'  i  i*- 

5  the  house  of  correction  for  not  more  than  two  years. 

1  Section  20.     Wlioever  steals  in  a  building,  ship,  vessel  or  railroad  ,st«a]ing  in 

r»  Till  '111*  *  •!  •  p  building,  ship, 

2  car  shall  be  punished  by  imprisonment  m  the  state  prison  tor  not  more  etc. 

3  than  five  years  or  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  i83o!  72,  '§  3. ' 

4  imprisonment  in  jail  for  not  more  than  two  years.  ^'  ^'^  ^^""^  ^  '■*' 

1843,1,5  1.  1896,389.  8  Gray.  469. 

1845,28.  R.L.20S,  §20.  Ill  Mass.  429. 

1851,  156,  §  4.  2  Gush.  582.  129  Mass.  101. 

G.  S.  161,  §  15.  3  Gray,  450.  135  Mass.  269. 
P.  S.  203,  §  16. 

1  Section  21.     Wlioever,  having  been  convicted,  either  as  principal  or  Refusaito 

2  accessory,  of  burglary  or  robbery,  or  of  any  of  the  crimes  described  in  property!°etc'. 

3  sections  seventeen  to  twenty,  inclusive,  of  chapter  two  hundred  and  ^/i.'ioi.'f,  n. 

4  sixty-five,  or  of  breaking  and  entering  or  of  entering  a  building  with  ^-  ^-  ^o*'  5  21. 

5  intent  to  commit  robbery  or  larceny,  has  in  his  possession  or  control 

6  money,  goods,  bonds  or  bank  notes,  or  any  paper  of  value,  or  any  prop- 

7  erty  of  another,  which  was  obtained  or  taken  by  means  of  such  crime, 

8  and,  upon  being  requested  by  the  lawful  owner  thereof  to  deliver  the 

9  same  to  him,  refuses  or  fails  so  to  do  while  having  power  to  deliver  the 

10  same,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not 

11  more  than  five  years  or  in  jail  or  house  of  correction  for  not  more  than 

12  two  years. 

1  Section  22.     Whoever,   with  intent  to  commit  larceny,  breaks  or  Detention  of 

2  enters  or  enters  in  the  night  without  breaking  any  building  or  enclosure  Juily^nteri'nr 

3  wherein  is  kept  or  confined  any  kind  of  poultry,  may  be  detained  or  kept  Eoua^y^uTept. 

4  in  custody  in  a  convenient  place  by  the  owner  of  the  poultry,  or  by  his  ;9i'4'''5^4 

5  agent  or  employee,  for  not  more  than  twenty-four  hours,  Sunday  excepted,  §§  i.'z. 

6  until  a  complaint  can  be  made  against  him  for  the  offence  and  he  be  taken 

7  upon  a  warrant  issued  upon  such  complaint,  and,  upon  conviction  of  such 

8  trespassing  or  breaking  or  entering,  shall  be  punished  by  a  fine  of  not 

9  more  than  five  hundred  dollars  or  by  imprisonment  in  the  house  of  correc- 
10  tion  for  not  more  than  two  years. 

1  Section  23.     Whoever  steals,  conveys  away  or  conceals  any  furniture,  Embezzling, 

2  goods,  chattels,  merchandise  or  effects  of  persons  whose  houses  or  build-  property  at  a 


2706 


CHUIES  AGAINST  PROPERTY. 


[Ch.\p.  266. 


fire  to  be 
deemed 

larcenv. 
1711-12,  5,  §4. 
1744-5,  30,  §  4. 
1798,  88,  §  4. 
R.  S.  18,  §  8. 

Stealing 
at  a  fire. 
R.  S.  126, 
G.  S.  161, 
P.  S.  203, 
R.  L.  208, 

§  15. 
1  16. 
§  18. 
,§23. 

Larceny  from 
the  person. 
1784,  60,  §  2. 
1S04,  143.  §  8. 
R.  S.  126,  §  16. 

ings  are  on  fire  or  are  endangered  thereby,  and  does  not,  within  two  days  3 

thereafter,  restore  the  same  or  give  notice  of  his  possession  thereof  to  the  4 

owner,  if  known,  or,  if  unknown,  to  the  mayor  or  one  of  the  aldermen,  5 

selectmen  or  firewards  of  the  place,  shall  be  guilty  of  larceny.  6 

G.  S.  24,  §  8.  P.  S.  35,  §  8.  R.  L.  208,  §  22. 

Section  24.     AVhoever  steals  in  a  building  which  is  on  fire,  or  steals  1 

property  which  has  been  removed  in  consequence  of  an  alarm  caused  by  2 

fire,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  3 

than  five  years  or  by  a  fine  of  not  more  than  five  hundred  dollars  and  4 

imprisonment  in  jail  for  not  more  than  two  years.  5 

Section  25.     AMioever  commits  larceny  by  stealing  from  the  person  1 

of  another  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  2 

more  than  five  years  or  in  jail  for  not  more  than  two  years.  3 


G.  S.  Ifil,  §  17. 
P.  S.  20.1,  §  19. 
R.  L.  208,  §  24. 
3  Gush.  235. 
12  Allen,  182. 


99  Moss.  431. 
105  Mass.  169. 
138  Mass.  483. 
188  Mass.  330. 


203  Mass.  598. 
213  Mass.  225. 
215  Mass.  209. 
235  Mass.  357. 


Subjects  of 
larceny. 
1784,  66,  §  1. 
1804,143,  §  1. 
R.  S.  126,  §  17. 
G.  S.  Ifil,  I  18. 
P.  S.  203,  §  20. 
1898,  562, 
§  111. 
R.  L.  208,  §  25. 

7  Met.  475. 
9  Met.  273. 
4  Grav,  416. 

8  Grav.  492. 
100  iiass.  206. 

Penalty  for 
stealing  tools 
of  contractors, 
builders,  etc. 
1907,  500,  §  1. 


Section  26.     Larceny  may  be  committed   of  a  bank  note,   bond,  1 

promissory  note,  bill  of  exchange  or  other  bill,  order  or  certificate,  or  of  2 

a  book  of  accounts  for  or  concerning  money  or  goods  due  or  to  become  3 

due  or  to  be  delivered,  or  of  a  deed  or  writing  containing  a  conveyance  4 

of  land,  or  of  any  valuable  contract  in  force,  or  of  a  receipt,  release  or  5 

defeasance,  or  of  a  writ,  process,  certificate  of  title  or  duplicate  certifi-  6 

cate  issued  under  chapter  one  hundred  and  eighty-five,  or  of  a  public  7 

record.  103  Mass.  425.  8 

Section  27.     Wlioever  steals  any  tool  belonging  to  any  contractor,  1 

builder  or  mechanic  from  any  building  during  the  course  of   its   con-  2 

struction,  completion,  alteration  or  repair,  shall,  for  a  first  offence  be  3 

punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  4 

ment  for  not  more  than  six  months,  or  both,  and  for  a  subsequent  offence  5 

by  a  fine  of  one  hundred  dollars  or  by  imprisonment  for  six  months,  or  6 

both.  7 


Theft  or  con- 
cealment of 
motor  vehicles, 
etc.     Penalty. 
1919,249,  §  1. 
1920,  322. 


Section  28.     Whoever  steals  an  automobile  or  motor  cycle,  or  re-  1 

ceives  or  buys  an  automobile  or  motor  cycle  knowing  the  same  to  have  2 

been  stolen,  or  conceals  any  automobile  or  motor  cycle  thief  knowing  3 

him  to  be  such,  or  conceals  any  automobile  or  motor  cycle  knowing  the  4 

same  to  have  been  stolen,  shall  be  punished  by  imprisonment  in  the  state  5 

prison  for  not  more  than  five  jears  or  imprisonment  in  jail  or  house  of  6 

correction  for  not  less  than  one  year.  7 


Disposition  of 

prosecutions 

under  section 

28. 

1919,  249,  §  2. 


Section  29.     A  complaint  or  indictment  for  the  \iolation  of  any  1 

pro\-ision  of  the  preceding  section  shall  not,  unless  the  purposes  of  justice  2 

require  such  disposition,  be  placed  on  file  or  disposed  of  except  by  trial  3 

and  judgment  according  to  the  regular  course  of  criminal  proceedings.  4 

It  shall  be  otherwise  disposed  of  only  upon  motion  in  WTiting,  stating  5 

specifically  the  reasons  therefor  and  verified  by  affidavit  if  facts  are  6 

relied  on.    If  the  court  or  justice  certifies  in  writing  that  he  is  satisfied  7 

that  the  cause  relied  on  exists  and  that  the  interests  of  public  justice  8 

require  the  allowance  thereof,  such  motion  shall  be  allowed,  and  said  9 

certificate  shall  be  filed  in  the  case.  10 


Ch.\P.   266.]  CRIMES  AGAINST   PROPERTY.  2707 

1  Section  30.     Whoever  steals,  or  with  intent  to  defraud,  obtains  by  Larceny,  etc. 

2  a  false  pretence,  or  whoever  unlawfully  and,  with  intent  to  steal  or  em-  « o,  3.^' 

3  bezzle,  converts  or  secretes,  with  intent  to  convert,  the  money  or  personal  Irel'lfe^f'/  ^' 

4  chattel  of  another,  whether  such  money  or  personal  chattel  is  or  is  not  \l°f  \*l'  |  i- 

5  in  his  possession  at  the  time  of  such  conversion  or  secreting,  shall  be  is34!  ise,' 

6  guilty  of  larceny,  and  shall,  if  the  value  of  the  property  stolen  exceeds  one  r.  sl^iie, 

7  hundred  dollars,  be  punished  by  imprisonment  in  the  state  prison  for  il5V,'233T^^' 

8  not  more  than  five  years  or  by  a  fine  of  not  more  than  six  hundred  dollars  °§  fkUl'.  ss, 

9  and  imprisonment  in  jail  for  not  more  than  two  years;  or,  if  the  value  "'g^^aos*' 

10  of  the  property  stolen  does  not  exceed  one  hundred  dollars,  shall  be  |i  ^^^  ^^^  *"• 

11  punished  by  imprisonment  in  jail  for  not  more  than  one  year  or  by  a  fine  issoi^iss.' 

12  of  not  more  than  tlu-ee  hundred  dollars;   or,  if  the  property  was  stolen  r.  l'.  208.  §  26. 

13  from  the  conveyance  of  a  common  carrier  or  of  a  person  carrjdng  on  an  1914';  ess' 

14  express  business,  shall  be  punished  for  the  first  offence  by  imprisonment  Jglg;  s^'^' ^  *^' 

15  for  not  less  than  six  months  nor  more  than  two  and  one  half  years,  or  by  g^^^^ss'  14 

16  a  fine  of  not  less  than  fifty  nor  more  than  six  hundred  dollars,  or  both,  ?  Mass  72. 

17  and  for  a  subsequent  offence  by  imprisonment  for  not  less  than  eighteen  is  Pjeic.  179. 

18  months  nor  more  than  two  and  one  half  years,  or  by  a  fine  of  not  less  than  2  Met.  343!'' 

19  one  hundred  and  fifty  dollars  nor  more  than  six  hundred  dollars,  or  both.    lo^Met.'lli. 

11  Met.  64.  107  Mass.  486.  141  Mass.  423,  571. 

12  Met.  446.  108  Mass.  309.  149  Mass.  179. 
BGray,  434,  461.                             Ill  Mass.  432.                                 155  Mass.  523. 

6  Gray,  15.  115  Mass.  481.  160  Mass.  319,  551. 

8  Gray,  492.  116  Mass.  1.  40,  42.  165  Mass.  526. 

9  Gray,  5.  7.  114,  125.  121  Mass.  354.  166  Mass.  513. 

10  Gray,  173.  124  Mass.  325.  449.  169  Mass.  89. 
1  Allen,  590.  125  Mass.  390.  187  Mass.  581. 
5  Allen,  502.  126  Mass.  467.  188  Mass.  308. 

7  Allen,  548.  127  Mass.  20,  446.  201  Mass.  564. 

11  Allen,  233,  266.  128  Mass.  79.  202  Mass.  379. 

12  Allen,  145,  181.  129  Mass.  104.  207  Mass.  32.  563. 
97  Mass.  584.                                      130  Mass.  285.  224  Mass.  42. 

99  Mass.  428.  132  Mass.  16.  231  Mass.  449. 

100  Mass.  206.  137  Mass.  98.  232  Mass.  285. 
104  Mass.  548.  549.                          140  Mass.  279. 

1  Section  31.    Whoever  by  a  false  pretence,  with  intent  to  defraud,  Fraudulently 

r»i"i»  p  '  •  ii>i  !•         Obtaining 

2  obtains  the  signature  of  a  person  to  a  written  instrument,  the  false  making  signature. 

3  whereof  would  be  a  forgery,  shall  be  punished  by  imprisonment  in  the  g.  s.'i6i,'|54! 

4  state  prison  for  not  more  than  ten  years,  or  by  a  fine  of  not  more  than  r'.  l.  208,  §  27. 

5  five  hundred  dollars  and  imprisoiunent  in  the  jail  for  not  more  than  two  \\1  l\^l]  3I5, 

6  years. 

1  Section  32.     Whoever,  being  a  captain  of  a  vessel,   embezzles  or  Fraudulent 

2  fraudulently  converts  or  appropriates  money,  goods  or  property,  held  or  p^SpertyTiy 

3  possessed  by  or  delivered  to  him,  which  belong  wholly  or  in  part  to  the  vess'ei'."  °' 

4  crew  of  such  vessel,  the  owners  of  the  vessel,  or  to  those  who  have  fur-  i^o?,  389. 

5  nished  supplies  to  the  vessel,  although  he  is  a  joint  charterer  or  co- 

6  partner  with  the  members  of  the  crew  or  with  the  owners  of  the  vessel, 

7  or  with  the  person  who  furnished  the  supplies,  shall  be  guilty  of  larceny. 

1  Section  33.     Whoever,  with  intent  to  defraud,  obtains  by  a  false  False  pre- 

2  pretence  the  making,  acceptance  or  endorsement  of  a  bill  of  exchange  sj,"u'ie'arceny 

3  or  promissory  note,  the  release  or  substitution  of  collateral  or  other  J," g™""'" 

4  security,  an  extension  of  time  for  the  paj-ment  of  an  obligation,  or  the  '^'o,  378,  §  1. 

5  release  or  alteration  of  the  obligation  of  a  written  contract,  shall  be 

6  guilty  of  larceny. 

1  Section  34.     Whoever,  with  intent  to  defraud  and  by  a  false  pretence,  same  subject. 

2  induces  another  to  part  with  property  of  any  kind  or  with  any  of  the  ill'AfoM.  42^' 

3  benefits  described  in  the  preceding  section  shall  be  guilty  of  larceny. 


2708 


CRIMES   AGAINST  PROPERTY. 


[Chap.  266. 


Limitation  of 
sections  30,  31 
and  34. 
1854,  12. 
G.  S.  161,  §  54. 
P.  S.  203,  §  59. 
1899,  316,  §  2. 
R.  L.  208,  §  28. 

1919,  333, 
§§  37,  38. 

1920,  2. 


Section  35.  Sections  thirty,  thirty-one  and  thirty-four  shall  not 
apply  to  a  purchase  of  property  by  means  of  a  false  pretence  relative 
to  the  purchaser's  means  or  ability  to  pay,  if,  by  the  terms  of  the  pur- 
chase, payment  therefor  is  not  to  be  made  upon  or  before  the  delivery 
of  the  property  purchased,  unless  such  pretence  is  made  in  writing  and  is 
signed  by  the  person  to  be  charged.  222  Mass.  504. 


Persons  ob- 
taining credit 
by  false  pre- 
tences to  be 
guilty  of 
larceny. 
1913,312. 


Section  36.  Wlioever,  with  intent  to  defraud,  by  a  false  statement 
in  wTiting  respecting  the  financial  condition,  or  means  or  ability  to  pay, 
of  himself  or  of  any  other  person,  obtains  credit  from  any  bank  or  trust 
company  or  any  banking  institution  accustomed  to  give  credit  in  any 
form  whatsoever,  shall  be  guilty  of  larceny. 


Drawing  and 
uttering  fraud- 
ulent checks, 
drafts  and 
orders. 
1919, 141. 


Section  37.  Whoever,  with  intent  to  defraud,  makes,  draws,  utters 
or  delivers  any  check,  draft  or  order  for  the  payment  of  money  upon  any 
bank  or  other  depositary,  with  knowledge  that  the  maker  or  drawer  has 
not  sufficient  funds  or  credit  at  such  bank  or  other  depositary  for  the 
payment  of  such  instrument,  although  no  express  representation  is  made 
in  reference  thereto,  shall  be  guilty  of  attempted  larceny,  and  if  money 
or  property  is  obtained  thereby  shall  be  guilty  of  larceny.  As  against 
the  maker  or  drawer  thereof,  the  making,  drawing,  uttering  or  delivery  of 
such  a  check,  draft  or  order,  payment  of  which  is  refused  by  the  drawee,  9 
shall  be  prima  facie  evidence  of  intent  to  defraud  and  of  knowledge  of  10 
insufficient  funds  in,  or  credit  with,  such  bank  or  other  depositary,  unless  11 
the  maker  or  drawer  shall  have  paid  the  holder  thereof  the  amount  due  12 
thereon,  together  with  all  costs  and  protest  fees,  within  ten  days  after  13 
receiving  notice  that  such  check,  draft  or  order  has  not  been  paid  by  the  14 
drawee.  The  word  "credit",  as  used  herein,  shall  be  construed  to  mean  15 
an  arrangement  or  understanding  with  the  bank  or  depositary  for  the  16 
payment  of  such  check,  draft  or  order.  17 


Wrongful  de- 
tention of 
money  by  car- 
riers and  their 
employees. 
1919,  188. 


Section  38.     Whoever,  being  engaged  in  the  business  of  transport-  1 

ing  merchandise,  parcels  or  other  property  for  hire,  accepts  from  a  con-  2 

signor  or  his  agent  or  from  a  connecting  carrier  any  merchandise,  parcel  3 

or  other  property  for  delivery  to  a  consignee  upon  payment  by  the  con-  4 

signee  of  an  amount  of  money  for  said  merchandise,  parcel  or  other  5 

property,  and  embezzles  or  fraudulently  converts  to  his  own  use,  or  with  6 

intent  to  use  or  embezzle,  takes,  secretes  or  otherwise  disposes  of,  or  7 

fraudulently  withholds,  appropriates,  lends,  invests  or  otherwise  uses  or  8 

applies  such  money  in  whole  or  in  part  or  any  substitute  therefor  received  9 

by  him  from  such  consignee,  contrary  to  the  instructions  or  without  the  10 

consent  of  the  consignor,  shall  be  deemed  guilty  of  larceny.    A  member  or  1 1 

employee  of  a  co-partnership,  or  an  officer  or  employee  of  a  corporation,  12 

engaged  in  said  business  of  transporting  merchandise,  parcels  or  other  13 

property  for  hire  who  so  disposes  of  such  money  in  whole  or  in  part  or  14 

any  substitute  therefor  for  his  own  use  or  for  the  use  of  said  co-partner-  15 

ship  or  corporation,  contrary  to  the  instructions  or  without  the  consent  16 

of  the  consignor,  shall  be  guilty  of  larceny.  17 


Section  39. 


Whoever  steals  or  for  any  fraudulent  purpose  destroys,     1 
codicil  or  other  testamentary  instrument    2 

3 


Larceny  and 
destruction 

of  wills.  mutilates  or  conceals  a  \vi 

§§  19. 20!  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than 


CH-\P.    266.]  CRIMES  AGAINST    PROPERTY.  2709 

4  five  years  or  in  the  house  of  correction  for  not  more  than  two  years.    An  p.  s.  203, 

5  indictment  for  a  violation  of  this  section  need  not  contain  any  allegation  ilgoVsiT. 

6  of  value  or  ownership;   and  in  the  trial  of  such  an  indictment,  no  dis-  ^'  ^-  ^°*'  ^  '^■ 

7  closure  made  by  any  person  under  section  fourteen  of  chapter  one  hun- 

8  dred  and  ninety-one  shall  be  used  in  evidence  against  him. 

1  Section  40.     Whoever,  having  been  convicted,  upon  indictment,  of  Common  and 

...  Y  IP  1        ft  f  1  notorious  thief. 

2  larceny  or  01  bemg  accessory  to  larceny  before  the  fact,  afterward  com-  l!^'^''' 

3  mits  a  larceny  or  is  accessory  thereto  before  the  fact,  and  is  convicted  1804',  us,  §  3. 

4  thereof  upon  indictment,  and  whoever  is  convicted  at  the  same  sitting  of  g.'  s.'  lei.'  §  22.' 

5  the  court,  as  principal  or  accessory  before  the  fact,  of  three  distinct  lar-  r.  L.^^os.Vsi- 

6  cenies,  shall  be  adjudged  a  common  and  notorious  thief,  and  shall  be  J9{g;257; 

7  punished  by  imprisonment  in  the  state  prison  for  not  more  than  twenty  Ig^g-^ 

8  years  or  in  jail  for  not  more  than  two  and  one  half  years.  1920, 2. 

22  Pick.  1.  4Met  3G0.  12  Met.  246. 

3  Met.  457.  11  Met.  575,  5S1.  175  Mass.  202. 

1  Section  41.     Whoever  is  convicted  of  a  second  offence  of  the  larceny  Second  con- 

2  of  a  bicycle  shall,  if  the  value  of  the  bicycle  stolen  exceeds  ten  dollars,  rarcenyof  a 

3  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  five  iggT^'jog. 

4  years  or  by  a  fine  of  not  more  than  two  hundred  dollars  or  by  imprison-  ^-  ^-  ^°*'  ^  ^^• 

5  ment  in  jail  for  not  more  than  two  years. 

1  Section  42.     \Mioever  commits  larceny  of  a  printed  piece  of  paper  or  Larceny  of 

2  blank  designed  for  issue  by  any  incorporated  bank  or  banking  company  FoTbank  bUb, 

3  in  the  United  States  as  a  bank  bill,  certificate  or  promissory  note,  or  fsss,  67,  §  i. 

4  printed  by  means  of  an  engraved  plate  designed  for  printing  such  pieces  p; |; 203,' lis' 

5  of  paper  or  blanks,  with  intent  to  injure  or  defraud  either  by  uttering  or  ^^-  ^-  20s,  §  33. 

6  passing  the  same,  or  causing  or  allowing  the  same  to  be  uttered  or  passed 

7  as  true,  either  with  or  without  alteration  or  addition,  shall  be  punished 

8  by  imprisonment  in  the  state  prison  for  life  or  for  any  terra  of  years. 

1  Section  43.     \Mioever,  ha\-ing  been  employed  to  print  or  ha\nng  Printer,  etc., 

2  assisted  in  printing  a  printed  piece  of  paper  or  blank  describetl  in  the  "a'per.'etc^,"'^ 

3  preceding  section,  or  having  been  intrusted  with  the  care  or  custody  pasg/etc™"° 

4  thereof,  retains  it  in  his  possession  without  the  knowledge  and  consent  ^  *|'  ^l\  ^^^4 

5  of  the  corporation  for  which  it  was  printed,  with  intent  to  injure  or  defraud  ^  s.  2a3  §  26^ 

6  either  by  uttering  or  pas.sing  it  or  causing  or  allowing  it  to  be  uttered  or  ' 

7  passed  as  true,  either  with  or  without  alteration  or  addition,  shall  be 

8  punished  by  imprisonment  in  the  state  prison  for  life  or  for  any  term  of 

9  years. 

1  Section  44.    WTioever  by  a  trespass,  with  intent  to  steal,  takes  and  f ""■«">■  of     , 

....  I      1?     1  1  •  11  things  annexed 

2  carries  away  anything  which  is  parcel  or  the  realty  or  is  annexed  thereto,  to  the  realty. 

3  the  property  of  another  and  of  value,  against  his  will,  shall  be  guilty  of  §§"'1-3. 

4  such  simple  or  aggravated  larceny  as  he  would  be  guilty  of  if  such  proj)-  §§  25-27.' 

5  erty  were  personal  property.    Any  person  may  become  an  accessory  to  §'§l7-29: 

6  such  larceny  before  or  after  the  fact,  or  may  become  a  receiver  of  the  ^^-  ^-  ^°^- '  ^^• 

7  property  stolen,  in  like  manner  as  if  the  property  stolen  were  personal, 

8  and  shall  be  punished  accordingly.    The  same  courts  and  justices  as  would 

9  have  jurisdiction  if  the  property  stolen  were  personal  property  shall  have 
10  jurisdiction  of  such  crimes. 


2710 


CRIMES   AGAINST   PROPERTY. 


[Chap.  266. 


Same  subject. 
1851,  151, 
§§  4,  5. 
G.  S.  161, 
§§  28,  29. 
P.  S.  203, 
§§  30,  31. 
R.  L.  208,  §  36. 


Section  45.  The  stealing  of  such  real  property  may  be  a  larceny  1 
from  one  or  more  tenants,  sole,  joint  or  in  common,  in  fee,  for  life  or  2 
years,  at  will  or  sufferance,  mortgagors  or  mortgagees,  in  possession  of  the  3 
same,  or  who  may  have  an  action  of  tort  against  the  offender  for  trespass  4 
upon  the  property,  but  not  from  one  having  only  the  use  or  custody  5 
thereof.  The  larceny  may  be  from  a  wife  in  possession,  if  she  is  authorized  6 
by  law  to  hold  such  property  as  if  sole,  otherwise  her  occupation  may  7 
be  the  possession  of  the  husband.  If  such  property  which  was  of  a  per-  8 
son  deceased  is  stolen,  it  may  be  a  larceny  from  any  one  or  more  heirs,  9 
devisees,  reversioners,  remaindermen  or  others,  who  have  a  right  upon  10 
such  decease  to  take  possession,  but  not  ha\nng  entered,  as  it  would  be  11 
after  entry.  The  larceny  may  be  from  a  person  whose  name  is  unknown,  12 
if  it  would  be  such  if  the  property  stolen  were  personal,  and  may  be  13 
committed  by  those  who  have  only  the  use  or  custody  of  the  property,  14 
but  not  by  a  person  against  whom  no  action  of  tort  could  be  maintained  15 
for  acts  like  those  constituting  the  larceny.  16 


Larceny  of 
beast  or  bird. 
1850,  303. 

R  L^2oiVl7  ^^  ordinarily  kept  in  confinement  and  is  not  the  subject  of  larceny  at 
1906,181.'       '  common  law,  shall  be  guilty  of  larceny.  4 


Section  46.     Whoever,  without  the  consent  of  the  owner  and  with  a     1 
felonious  intent,  takes  any  domesticated  animal,  or  a  beast  or  bird  which    2 

3 


Penalty  for 
wrongfully 
removing  collar 
from  or  steal- 
ing or  poison- 
ing a  (fog. 

1858,  139,  §  2. 

1859,  225, 
§§4,S. 

G.  S.  88,  §  57. 
P.  S.  102,  §  88. 
R.  L.  208,  §  38. 
1913,  551. 


Section  47.  Whoever  wrongfully  removes  the  collar  from  or  steals 
a  dog  which  is  licensed  and  collared  as  provided  in  chapter  one  hundred 
and  forty  shall  be  punished  by  a  fine  of  not  more  than  one  hundred 
dollars,  or  by  six  months'  imprisonment,  or  both.  Whoever  di.stributes 
or  exposes  a  poisonous  substance,  with  intent  that  it  shall  be  eaten  by 
a  dog,  shall  be  punished  by  a  fine  of  not  less  than  twenty  nor  more  than 
one  hundred  dollars. 


SfarreTt^to  SECTION  48.     An  officer  who  arrests  a  person  charged  as  principal 

goods'st^oien.  ^^  acccssory  in  a  robbery  or  larceny  shall  secure  the  property  which  is 
R*s'i26'l25^'  ^.lleged  to  have  been  stolen,  annex  a  schedule  thereof  to  his  return  and 
g!  si  161,'  1 3L  be  answerable  for  the  same;  and,  upon  con\'iction  of  the  offender,  it  shall 

P  S  203   §  33  f  '      t  ' 

R.  L.  208,  §  39.  be  restored  to  the  owner. 


21  Pick,  156. 


4  Gray,  418. 


6  Allen,  298. 


187  Mass.  581. 


Making,  hold- 
ing, using, 
etc.,  burgla- 
rious instru- 
ment. 
1853,  194. 
G.  S.  161,  §  34. 
P.  S.  203,  §  36. 
R.  L.  208,  §  41. 
1914,  635. 

1918,  257, 
§  464. 

1919,  5. 

1920,  2. 

8  Gray,  375. 
138  Mass.  186. 
188  Mass.  282. 
199  Mass.  55. 


Section  49.     Whoever  makes  or  mends,  or  begins  to  make  or  mend,  1 

or  knowingly  has  in  his  possession,  an  engine,  machine,  tool  or  implement  2 

adapted  and  designed  for  cutting  through,  forcing  or  breaking  open  a  3 

building,  room,  vault,  safe  or  other  depository,  in  order  to  steal  therefrom  4 

money  or  other  property,  or  to  commit  any  other  crime,  knowing  the  5 

same  to  be  adapted  and  designed  for  the  purpose  aforesaid,  with  intent  6 

to  use  or  employ  or  allow  the  same  to  be  used  or  employed  for  such  pur-  7 

pose,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  8 

than  ten  years  or  by  a  fine  of  not  more  than  one  thousand  dollars  and  9 

imprisonment  in  jail  for  not  more  than  two  and  one  half  years.  10 


Fraud  or  em- 
bezzlement by 
employee  in 
treasury. 
1791,  59,  §  S. 
R.  S.  13,  §  23; 
126,  §  28. 


Section  50.  A  person  employed  in  the  treasury  of  the  common- 
wealth who  commits  a  fraud  or  embezzlement  therein  shall  be  punished 
by  a  fine  of  not  more  than  two  thousand  dollars  or  by  imprisonment  in 
the  state  prison  for  life  or  for  any  term  of  years. 

G.  S.  161,  §  36.  P.  S.  203,  §  38.  R.  L.  208,  §  42. 


Chap.  266.]  crimes  against  property.  2711 

1  Section  51.    A  county,  citv  or  to-nii  officer  who  embezzles  or  fraud-  Fraud  or  em- 

rvTi  ij"*!!!!  •!.  Dezziement  by 

2  ulently  converts,  or  who  iraudulently  takes  or  secretes  with  intent  so  <^'ty.  town  or 

3  to  do,  effects  or  property  which  belong  to  or  are  in  possession  of  said  isss,  487. 

4  county,  city  or  town,  shall  be  punished  by  imprisonment  in  the  state  p.' 1; 203,' §39.' 

5  prison  for  not  more  than  ten  years  or  by  a  fine  of  not  more  than  one  ^'  ^'  ^°^'  ^  *^' 

6  thousand  dollars  and  imprisonment  in  jail  for  not  more  than  two  years. 

1  Section  52.    An  officer  of  an  incorporated  bank,  or  a  person  in  the  Fraud  or  em- 

2  empIojTnent  of  such  bank,  who  fraudulently  converts,  or  fraudulently  bank^S'r  ot 

3  takes  and  secretes  with  intent  so  to  do,  any  bullion,  money,  note,  bill  n83',°53f'§  1. 

4  or  other  security  for  money  which  belongs  to  and  is  in  possession  of  such  }|||;  |J;  5  26 

5  bank,  or  which  belongs  to  any  person  and  is  deposited  therein,  shall,  fgj' jf^i' |  ^''• 

6  whether  intrusted  with  the  custody  thereof  or  not,  be  guilty  of  larceny  g.s.'i6i,'§39. 

7  in  said  bank,  and  shall  be  punished  by  imprisonment  in  the  state  prison  r'.  L.'ios,  §  44. 

8  for  not  more  than  fifteen  years  or  by  a  fine  of  not  more  than  two  thousand  w\\'.  635. 

9  dollars  and  imprisonment  in  jail  for  not  more  than  two  and  one  half  years,  igll;  s**^'  ^*^*' 

1920,  2.  1  Allen,  575.  101  Mass.  204.  137  Mass  98. 

8  Met.  247.  97  Mass.  50.  116  Mass.  1.  173  Mass.  541. 

1  Section  53.     In  prosecutions  for  such  crimes,  the  fraudulent  taking  Evidence  in 

2  or  recei\-ing  by  any  person  of  bullion,  money,  notes,  bills  or  other  security  be^zlfemenTby 

3  for  money  which  belongs  to  such  bank,  by  reason  of  an  unlawful  con-  oifi™ or'a^nT- 

4  federacy  or  agreement  between  him  and  an  officer  of  said  bank  or  any  jJaX^etc 

5  person  in  the  emploj-ment  thereof,  with  intent  to  defraud  the  same,  shall  r^|'i||'|  ^5 

6  be  deemed  to  be  a  fraudulent  taking  by  such  officer  or  person  in  the  em-  1845, 215'. 

7  ployment  of  the  bank  to  his  own  use,  within  the  meaning  of  the  preceding  §§  2,'3.   ' 

8  section;    and  it  shall  not  be  necessary,  upon  the  trial,  to  identify  the  §§'46,^42.' 
,    9  particular  bullion,  money,  note,  bill  or  security  for  money  which  is  so  p*s\'2ra!' 

10  taken  or  received.    Upon  the  trial  of  the  crime  of  embezzling,  fraudu-  ^  l^'2os  §  45 

11  lently  converting  or  fraudulently  taking  and  secreting,  with  intent  so  to  lis  Mass.  443. 

12  embezzle  or  convert,  the  bullion,  money,  notes,  bank  notes,  checks, 

13  drafts,  bills  of  exchange,  obligations  or  other  securities  for  money  of  any 

14  person,  bank,  corporation,  partnership,  county,  city  or  town  by  a  cashier 

15  or  other  officer,  clerk,  agent  or  servant  of  such  person,  bank,  corporation, 
10  partnership,  county,  city  or  town,  evidence  may  be  given  of  any  such 

17  embezzlement,  fraudulent  conversion  or  taking  ^\^th  such  intent  com- 

18  mitted  within  six  months  after  the  time  stated  in  the  indictment. 

1  Section  54.     Any  officer  of  any  trust  company,  savings  or  co-opera-  Penalty  for 

2  tive  bank  or  institution  for  savings,  or  any  individual  banker  who  re-  dep'osi'tfby 

3  ceives  or  permits  the  receipt  of,  and  any  employee  who  receives,  any  banUsfetc 

4  deposit  knowing  that  such  company,  bank,  institution  or  banker  is  in-  l^H'  I57  •  '^^^■ 

5  solvent,  shall  be  punished  by  imprisonment  for  not  more  than  two  and  \gl^-^ 

6  one  half  years  or  by  a  fine  of  not  more  than  five  thousand  dollars,  or  1020!  2. 

7  both. 

1  Section  55.     A  receiver  or  other  officer  appointed  by  a  court  of  Embezzlement 

2  record  who  embezzles  or  fraudulently  converts,  or  fraudulently  takes  etc. 

3  or  secretes  with  intent  so  to  do,  effects  or  property  in  his  possession  by  p.  s.'20.i.  §  45. 

4  virtue  of  such  appointment,  shall  be  guilty  of  larceny  and  shall  be  pun-    •    ' '    ■ 

5  ished  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years 

6  or  by  a  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in 

7  jail  for  not  more  than  two  years. 


2712 


CRIMES  AGAINST  PROPERTY. 


[Chap.  266. 


Embezzlement 
by  broker,  etc. 
1892,  138. 
R.  L.  208,  §  47. 
1914,  635, 

1918,  257, 
§464. 

1919,  5. 

1920,  2. 

202  Mass.  379. 


Section  56.  A  broker,  or  officer,  manager  or  agent  of  a  corporation 
doing  the  business  of  brokers,  who,  having  been  intrusted,  solely  or 
jointly,  with  money,  stock  or  security  for  the  pajTnent  of  money,  with 
any  direction  in  wi-iting  to  invest,  di.spose  of,  apply,  pay  or  deliver  such 
money,  stock  or  security,  or  any  part  thereof,  or  the  proceeds  or  any 
part  of  the  proceeds  thereof,  in  any  manner,  for  any  purpose  or  to  any 
person  mentioned  or  specified  in  such  direction,  in  violation  of  good  faith 
and  contrary  to  the  terms  of  such  direction,  embezzles  or  fraudulently  8 
converts  such  money,  stock  or  security,  or  any  part  thereof,  or  the  pro-  9 
ceeds  or  any  part  of  the  proceeds  thereof,  shall  be  punished  by  imprison-  10 
ment  in  the  state  prison  for  not  more  than  five  years  or  in  jail  for  not  11 
more  than  two  and  one  half  years  or  by  a  fine  of  not  more  than  five  hun-  12 
dred  dollars.  13 


Embezzlement 

by  trustee, 

etc. 

1877,  231. 

P.  S.  203,  §  46. 

R.  L.  208,  §  48. 

1915,  23. 

184  Mass.  320. 

202  Mass.  379. 


Section  57.    A  trustee  under  an  express  trust  created  by  a  deed,  1 

^\ill  or  other  instrument  in  ■WTiting,  or  a  guardian,  conservator,  executor  2 

or  administrator,  or  any  person  upon  or  to  whom  such  a  trust  has  de-  3 

volved  or  come,  who  embezzles  or  fraudulently  converts  or  appropriates  4 

money,  goods  or  property  held  or  possessed  by  him  for  the  use  or  benefit,  5 

either  wholly  or  partially,  of  some  other  person  or  for  a  public  or  chari-  6 

table  purpose,  to  or  for  his  own  use  or  benefit  or  to  or  for  the  use  or  benefit  7 

of  any  person  other  than  such  person  as  aforesaid,  or  for  any  purpose  other  8 

than  such  public  or  charitable  purpose  as  aforesaid,  or  who  otherwise  9 

fraudulently  disposes  of  or  destroys  such  property,  shall  be  punished  by  10 

imprisonment  in  the  state  prison  for  not  more  than  ten  years  or  by  a  11 

fine  of  not  more  than  two  thousand  dollars  and  imprisonment  in  jail  12 

for  not  more  than  two  years.  13 


Embezzlement 
from  voluntary 
association. 
1884,  174. 
R.  L.  208.  §  49. 


Section  58.    Whoever,  being  an  officer,  agent,  clerk  or  servant  of  a  1 

voluntary  association  or  society,  embezzles  or  fraudulently  converts,  or  2 

fraudulently  takes  or  secretes  with  intent  so  to  do,  effects  or  property  3 

which  belong  to  such  association  or  society,  or  which  have  come  to  his  4 

possession  or  are  under  his  care  by  virtue  of  his  office  or  employment,  5 

shall  be  guilty  of  larceny.  6 


Same  subject. 

1886,  328. 

R.  L.  208,  §  50. 


Section  59.  Whoever  embezzles  or  fraudulently  converts,  or  se-  1 
cretes  with  intent  to  embezzle  or  fraudulently  convert,  money,  goods  or  2 
property  or  any  part  thereof  which  has  been  delivered  to  him,  which  3 
may  be  the  subject  of  larceny  and  which  belong  to  any  organization  of  4 
the  volunteer  militia,  post  of  the  Grand  Army  of  the  Republic,  or  other  5 
voluntary  association,  shall  be  guilty  of  simple  larceny,  although  he  is  a  6 
member  of  such  organization  or  voluntary  association  and,  as  such,  en-  7 
titled  to  an  interest  in  the  property  thereof.  In  a  prosecution  under  8 
this  section,  it  shall  be  sufficient  to  describe  such  organization  or  associa-  9 
tion  by  the  name  by  which  it  is  generally  known  and  as  a  voluntary  10 
association.  1 1 


Buying  or  re- 
ceiving stolen 
goods. 
1C98,  8. 
1723-4,  9. 
1784,  66,  §  9. 
1804,  143,  §  10. 
R.  S.  126,  §  20. 
1853, 184,  §  1. 


Section  60.    Whoever  buys,  receives  or  aids  in  the  concealment  of  1 

stolen  or  embezzled  property,  knowing  it  to  have  been  stolen  or  em-  2 

bezzled,  or  whoever  with  intent  to  defraud  buys,  receives  or  aids  in  the  3 

concealment  of  property,  knowing  it  to  have  been  obtained  from  a  person  4 

by  a  false  pretence  of  carrying  on  business  and  dealing  in  the  ordinary  5 


Chap.  266.]  crimes  against  property.  2713 

6  course  of  trade,  shall  be  punished  by  imprisonment  in  the  state  prison  g.  s.  lei. 

7  for  not  more  than  five  years  or  by  a  fine  of  not  more  than  five  hundred  iles^wl,  §  3. 

8  dollars  and  imprisonment  in  jail  for  not  more  than  two  years.  m.'cl''^'  ^^*^' 

R.  L.  208,  §51.  117  Mass.  141.  140  Mass.  473. 

6  Met.  241.  120  Mass.  198.  196  Mass.  286. 

7  Met.  460.  121  Mass.  373.  207  Mass.  25. 
S'  Gray,  82.  136  Mass.  170.  232  Mass.  588. 


1       Section  61.     If,  upon  a  first  conviction  under  the  preceding  section.  Effect  of 

stitutior 
olen  property 


2  it  is  shown  that  the  act  of  stealing  the  property  was  a  simple  larceny,  stol'*"''"" "' 


3  and  if  the  person  convicted  makes  restitution  to  the  person  injured  to  ig^f.^'i^''^  13 

4  the  full  value  of  the  property  stolen  and  not  restored,  he  shall  not  be  im-  R-  i  }-r?'|  tl- 

_  .  ,   .        ,  r-      r-        ./  >  G.  S.  lbl,§44. 

5  prisoned  in  the  state  prison.  p.  s.  203,  §  49.  r.  l.  208,  §  52. 

1  Section  62.     Whoever  is  convicted  of  buying,  receiving  or  aiding  in  Common  re- 

2  the  concealment  of  stolen  or  embezzled  property,  knowing  it  to  have  been  lto\el  glods. 

3  stolen  or  embezzled,  having  been  before  convicted  of  the  like  offence,  and  Jf^;  j",' 1 22.' 

4  whoever  is  convicted  at  the  same  sitting  of  the  court  of  three  or  more  Jfif'iifMI? 

5  distinct  acts  of  buying,  receiving  or  aiding  in  the  concealment  of  money,  p.  s.  203,' §  52. 

6  goods  or  property  stolen  or  embezzled  as  aforesaid,  shall  be  adjudged  a  226  Mass'.  409.' 

7  common  receiver  of  stolen  or  embezzled  goods  and  shall  be  punished 

8  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years. 

1  Section  63.     Whoever    wilfully,    mischievously    and    without    right  unlawful 

2  takes  or  uses  a  boat  or  vehicle,  or  takes,  drives,  rides  or  uses  any  draught  animal,  etc. 

3  animal  which  is  the  property  of  another,  without  the  consent  of  the  1854, 295. 

4  owner  or  other  person  who  has  the  legal  custody,  care  or  control  thereof,  cf.*!.'  ?6i,V48. 

5  shall  be  punished  by  a  fine  of  not  more  than  three  hundred  dollars  or  by  r.l.Ios.Isi. 

6  imprisonment  for  not  more  than  six  months;  but  this  section  shall  not 

7  apply  to  the  property  of  another  taken  with  intent  to  steal  it,  or  under 

8  a  claim  of  right,  or  with  the  presumed  consent  of  the  owner  or  other 

9  person  who  has  the  legal  control,  care  or  custody  thereof. 

1  Section  64.     Whoever  hires  a  horse,  carriage  or  other  vehicle,  and,  ^^in'^o'f''"' 

2  with  intent  to  cheat  or  defraud  the  owner  thereof,  makes  to  him  or  to  horses,  car- 

3  his  agent  at  the  time  of  such  hiring  a  false  statement  of  the  distance  which  bi'ies,  etc. 

4  he  proposes  to  travel  with  such  horse,  carriage  or  other  vehicle,  or  who-  r.  l.'  20s,'  §  55. 

5  ever,  with  such  intent,  makes  to  the  owner  or  his  agent,  after  the  use  of  205°Mass'.  400. 

6  a  horse,  carriage  or  other  vehicle,  a  false  statement  of  the  distance  which 

7  he  has  actually  traveled  with  such  horse,  carriage  or  other  vehicle,  and 

8  whoever,  with  such  intent,  refuses  to  pay  for  the  use  of  a  horse,  carriage 

9  or  other  vehicle  the  lawful  fare  established  therefor  by  any  town,  shall 

10  be  punished  by  a  fine  of  not  more  than  twenty  dollars  or  by  imprison- 

11  ment  for  not  more  than  two  months,  or  both. 

1  Section  65.     An  officer,  agent,  clerk  or  servant  of  a  corporation,  or  Unauthorized 

2  any  other  person,  who  issues  or  signs  with  intent  to  issue  a  certificate  of  is5i!.°i2'3,"§  1'. 

3  stock  in  a  corporation,  or  who  issues,  signs  or  endorses  with  intent  to  cj^^I.'im.mo. 

4  issue,  a  bond,  note,  bill  or  other  obligation  or  security  in  the  name  of  such  r.  l.  208.\  sg. 

5  corporation,  beyond  the  amount  authorized  by  law  or  limited  by  the 

6  legal  votes  of  such  corporation  or  its  proper  officers,  or  negotiates,  trans- 

7  fers  or  disposes  of  such  certificate  with  intent  to  defraud,  shall  be  punished 

8  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years  or  in  the 

9  house  of  correction  for  not  more  than  one  year. 


2714 


CRIMES  AGAINST   PROPERTY. 


[CHA.P.   266. 


Fraudulent 

issue  of  stock, 

etc. 

1856,  123,  §  2. 

G.S.  161,  §  SO. 

P.  S.  20.3,  §  65. 

R.  L.  208,  §  57. 


False  entry, 
etc.,  in  book  of 
corporation. 
1856,  123,  §  3. 
G.S.  161,  §  51. 
P.  S.  203,  §  56. 
1885,  223. 
R.  L.  208,  §  58. 
190  Mass.  293. 


Section  66.     An  oflScer,  agent,  clerk  or  servant  of  a  corporation,  or  1 

any  other  person,  who  fraudulently  issues  or  transfers  a  certificate  of  the  2 

stock  of  a  corporation  to  a  person  who  is  not  entitled  thereto,  or  who  3 

fraudulently  signs  such  certificate,  in  blank  or  otherwise,  with  the  intent  4 

that  it  shall  be  so  issued  or  transferred  by  himself  or  any  other  person,  5 

shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  6 

ten  years  or  in  the  house  of  correction  for  not  more  than  one  year.  7 

Section  67.     An  officer  of  a  corporation  or  an  agent,  clerk  or  servant  1 

of  a  person,  firm  or  corporation  who  makes  a  false  entry  or  omits  to  make  2 

a  true  entry  in  any  book  of  such  person,  firm  or  corporation,  with  intent  3 

to  defraud,  and  any  person  whose  duty  it  is  to  make  a  record  or  entry  of  4 

the  transfer  of  stock,  or  of  the  issuing  or  cancelling  of  certificates  thereof,  5 

or  of  the  amount  of  stock  issued  by  a  corporation,  in  any  book  thereof,  6 

who,  with  intent  to  defraud,  omits  to  make  a  true  record  or  entry  thereof,  7 

shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  8 

ten  years  or  in  the  house  of  correction  for  not  more  than  one  year.  9 


Books  of  cor- 
poration as 
evidence. 
1856,  123,  §  4. 
G.S.  161,  §52 


Section  68.    Upon  the  trial  of  a  person  for  a  crime  under  the  three  1 

preceding  sections,  the  books  of  any  person,  firm  or  corporation  to  which  2 

he  had  access  or  the  right  of  access  shall  be  admissible  in  evidence.  3 

p.  S.  203,  §  57.  R.  L.  208,  §  59.  190  Mass.  293. 


Unlawful  use 
of  insignia. 
1902,  430. 
1904,  335, 
§§  2,  3. 
1909,  514, 
§§  32,  115. 


Section  69.  \^^loever,  not  being  a  member  of  a  society,  association 
or  labor  union,  for  the  purpose  of  representing  that  he  is  a  member 
thereof,  wilfully  wears  or  uses  the  insignia,  ribbon,  badge,  rosette,  button 
or  emblem  thereof,  if  it  has  been  registered  in  the  office  of  the  state 
secretary,  shall  be  punished  by  a  fine  of  not  more  than  twenty  dollars  or 
by  imprisonment  for  not  more  than  one  month,  or  both. 


Same  subject. 
1887,  67. 
1891,15. 
1894,  27;  117. 
1901,  151. 
R.  L.  208,  §  60. 
1907.  232,  §  3. 
1920,  367. 


Section  70.     WTioever,  not  being  a  member  of  the  Military  Order  1 

of  the  Loyal  Legion  of  the  United  States,  the  Grand  Army  of  the  Re-  2 

public,  the  Sons  of  Veterans,  the  Woman's  Relief  Corps,  the  Union  3 

Veterans'  Union,  the  Union  Veteran  Legion,  the  Military  and  Naval  4 

Order  of  the  Spanish-American  War,  the  LTnited  Spanish  War  Veterans,  5 

the  American  Officers  of  the  Great  War,  the  Veterans  of  Foreign  Wars  6 

of  the  United  States,  the  Military  Order  of  Foreign  Wars  of  the  United  7 

States  or  the  American  Legion,  wilfully  wears  or  uses  the  insignia,  dis-  8 

tinctive  ribbons  or  membership  rosette  or  button  thereof  for  the  purpose  9 

of  representing  that  he  is  a  member  thereof  shall  be  punished  by  a  fine  10 

of  not  more  than  twenty  dollars  or  by  imprisonment  for  not  more  than  11 

one  month,  or  both.  12 


Fraudulent  use 
of  names,  etc. 
1908,  280,  §  1. 


Section  71.     'WTioever  wilfully,  by  color  or  aid  of  any  false  token  1 

or  writing,  or  other  false  pretence  or  false  statement,  verbal  or  MTitten,  2 

or  without  authority  of  the  grand  or  supreme  governing  lodge,  council,  3 

union  or  other  governing  body  hereinafter  mentioned,  obtains  the  signa-  4 

ture  of  any  person  to  any  written  application,  or  obtains  any  money  or  5 

property  for  any  alleged  or  pretended  degree,  or  for  any  alleged  or  pre-  6 

tended  membership  in  any  fraternity,  association,  society,  order,  organi-  7 

zation  or  union  having  a  grand  or  supreme  governing  lodge,  council,  union  8 

or  other  governing  body  in  the  commonwealth,  or  in  any  subordinate  9 

lodge  or  body  thereof,  shall  be  punished  by  imprisonment  for  not  more  10 

than  one  year  or  by  a  fine  of  not  more  than  five  hundred  dollars,  or  both.  11 


Ch,\P.   266.]  CRIMES  AGAINST   PROPERTY.  2715 

1  Section  72.     Whoever,  in  a  newspaper  or  other  publication,  or  in  any  Certain  pubu- 

2  written  or  printed  letter,  notice,  matter  or  device,  without  authority  of  bkilfen^.  e°tc" 

3  the  grand  or  supreme  governing  lodge,  council,  imion  or  other  governing  '®°*'  ^*°'  ^  ^' 

4  body,  fraudulentl.y  uses  or  aids  in  any  way  in  the  use  of  the  name,  title  or 

5  common  designation  of  any  fraternity,  association,  society,  order,  organi- 

6  zation  or  union  which  has  such  a  governing  body,  having  priority  in  such 

7  use  in  the  commonwealth,  or  any  name,  title  or  designation  so  nearly 

8  resembling  the  same  as  to  be  calculated  or  likely  to  deceive;  and  who- 

9  ever,  without  such  authority,  fraudulently  publishes,  sells,  circulates  or 

10  distributes  any  written  or  printed  letter,  notice,  matter  or  device,  in  any 

11  way  soliciting  members  of  such  fraternity,  association,  society,  order,  or- 

12  ganization  or  union,  or  for  any  alleged  or  pretended  fraternity,  associa- 

13  tion,  society,  order,  organization  or  union,  using  any  such  name,  title, 

14  designation,  or  near  resemblance  thereto;  and  whoever  therein  or  thereby 

15  in  any  way,  without  such  authority,  fraudulently  offers  to  sell,  confer, 

16  communicate  or  gi\'e  information  where,  of  whom  or  by  what  means 

17  any  degree  or  work,  in  whole  or  in  part,  of  such  fraternity,  association, 

18  society,  order,  organization  or  union,  or  of  any  alleged  or  pretended 

19  fraternity,  association,  society,  order,  organization  or  union  using  any 

20  such  name,  title  or  designation  or  near  resemblance  thereto,  can  or  may 

21  be  obtained,  conferred  or  communicated,  shall  be  punished  by  imprison- 

22  ment  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  five  hun- 

23  dred  dollars,  or  both. 

1  Section  73.    Whoever,  with  intent  to  defraud,  by  a  false  pretence  of  ^nderw!!""''" 

2  carrying  on  business  and  dealing  in  the  ordinary  course  of  trade,  obtains  P^rrv"ngon 

3  from  any  person  goods  or  chattels  shall  be  punished  by  imprisonment  5'^|^'"^2«  ,  ^ 

4  in  the  state  prison  for  not  more  than  five  years  or  by. a  fine  of  not  more  p.  s.'203.'§  eo. 

5  than  five  hundred  dollars  and  imprisorunent  in  jail  for  not  more  tlian  two  1902,'  544,'  §  29! 

6  years. 

108  Masa.  309.  153  Mass.  5SS.  157  Mass.  1S8.  182  Mass.  142. 

1  Section  74.     An  officer,  agent,  clerk    or   servant   of  a  corporation  Fraudulent 

2  organized  or  doing  business  in  the  commonwealth,  who  wilfully  uses  of^corpo'ration. 

3  the  name  of  such  corporation,  or  his  own  name  as  such  officer,  agent,  i?'&?'2rat§  62. 

4  clerk  or  servant,  to  obtain  money  upon  the  credit  of  such  corporation  J^^^jj^os,  §^62. 

5  for  his  own  use  or  benefit,  without  authority  from  such  corporation,  or 

6  who  fraudulently  lends,  invests  or  appropriates  the  money  or  disposes 

7  of  the  property  of  such  corporation,  or  fraudulently  converts  it,  shall 

8  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  ten 

9  years. 

1  Section  75.     Whoever,  by  a  game,  device,  sleight  of  hand,  pretended  °^'p^°ty^by 

2  fortune  telling  or  by  any  trick  or  other  means  by  the  use  of  cards  or  J's'^j'Jll  §  i 

3  other  implements  or  instruments,  fraudulently  obtains  from  another  per-  pl^'os'lcl' 

4  son  property  of  any  description  shall  be  punished  as  in  the  case  of  larceny  r'.  l.  208,  §  r3. 

5  of  property  of  like  value.  125  Mass.  3S4.  ISS  Mass.  484. 

1  Section  76.    Whoever  is  convicted  of  any  gross  fraud  or  cheat  at  Gross  fraud, 

2  common  law  shall  be  punished  by  imprisonment  in  the  state  prison  tor  n.oniaw. 

3  not  more  than  ten  jears  or  in  jail  for  not  more  than  two  years  or  by  a  fine  isis,  iso,  §  2. 

4  of  not  more  than  four  hundred  dollars. 

R.  S.  120,  §  33.  G.  S.  101,  §  58.  P.  S.  203,  §  GO.  R.  L.  208,  §  04. 


2716 


CRIMES   AGAINST   PROPERTY. 


[Chap.  266. 


Pale  of  certain 
articles  as 
sterling  and 
coin  silver. 
1894,  292. 
R.  L.  208,  §  65. 


Section  77.  Whoever  makes  or  sells,  or  offers  to  sell  or  dispose  of, 
or  has  in  his  possession  with  intent  so  to  do,  any  article  of  merchandise 
marked,  stamped  or  branded  with  the  words  "sterling",  "sterling  silver", 
"coin"  or  "coin  silver",  or  encased  or  enclosed  in  any  box,  package, 
cover  or  %\Tapper  or  other  thing  in  or  by  which  the  said  article  is  packed, 
enclosed  or  otherwise  prepared  for  sale  or  disposition,  having  thereon  any 
engraving  or  printed  label,  stamp,  imprint,  mark  or  trade  mark,  indicat- 
ing or  denoting  by  such  marking,  stamping,  branding,  engraving  or  8 
printing,  that  such  article  is  silver,  sterling  silver,  solid  silver,  coin  or  9 
coin  silver,  shall,  unless  nine  hundred  and  twenty-five  one-thousandths  10 
of  the  component  parts  of  the  metal  of  which  the  said  article  so  marked,  11 
stamped  or  branded  with  the  words  "sterling"  or  "sterling  silver"  is  12 
manufactured  are  pure  silver,  or  unless  nine  hundred  one-thousandths  13 
of  the  component  parts  of  the  metal  of  which  the  article  so  marked,  14 
stamped  or  branded  with  the  words  "coin"  or  "coin  silver"  is  manu-  15 
factured,  are  pure  silver,  be  punished  by  a  fine  of  not  more  than  one  16 
hundred  dollars.  17 


False  marking 
of  articles 
made  of  gold, 
etc..  prohibited. 
1907.  4G0, 
§§  1-3. 


Section  78.  ^Vlioever  makes  or  sells,  or  offers  for  sale  or  disposes  of,  1 
or  has  in  his  possession  with  intent  so  to  do,  any  article  constructed  in  2 
whole  or  in  part  of  gold  or  alloy  of  gold,  or  of  any  metal  resembling  gold,  3 
having  marked  thereon  or  upon  any  tag  or  label  attached  thereto,  or  upon  4 
any  package,  cover  or  wrapper  in  which  such  article  is  enclosed  or  5 
wrapped,  any  word  or  mark  indicating  or  designed  or  intended  to  indicate  6 
that  the  gold  or  alloy  of  gold  in  said  article,  or  in  the  plating,  surface  or  7 
any  other  part  of  said  article  is  of  a  greater  degree  or  carat  of  fineness  by  8 
more  than  one  carat  than  the  actual  quality  or  fineness  of  such  gold  or  9 
alloy  of  gold,  or  any  so-called  gold  filled,  rolled  gold  plated  or  electro  10 
gold  plated  article  having  marked  thereon,  or  upon  any  tag  or  label  at-  11 
tached  thereto,  or  upon  any  package,  cover  or  wrapper  in  which  such  12 
article  is  enclosed  or  WTapped,  any  word  or  mark  indicating  or  designed  13 
or  intended  to  indicate  that  the  gold  or  alloy  of  gold  upon  such  article  14 
is  of  a  greater  percentage  of  weight  of  the  article  by  more  than  one  per  15 
cent  than  the  actual  percentage  of  gold  or  alloy  of  gold,  shall  be  punished  16 
by  a  fine  of  not  more  than  five  hundred  dollars.  The  word  or  mark  upon  17 
the  article  or  upon  the  tag  or  label  attached  thereto,  or  upon  the  package,  18 
cover  or  wrapper  in  which  such  article  is  enclosed,  shall  be  held  to  apply  19 
to  the  whole  article,  all  the  gold,  alloys,  solder  and  base  metals  being  20 
assayed  as  one  piece,  unless  the  word  or  mark  plainly  indicates  that  it  21 
applies  to  the  plating,  surface  or  other  particular  part  of  such  article.       22 


False  repre- 
sentation of 
imitations 
of  fur 
prohibited. 
1919,  134. 


Section  79.  Whoever,  himself,  or  by  his  agent  or  servant,  or  as  the 
agent  or  servant  of  another  person,  sells  or  exchanges,  or  has  in  his 
custody  or  possession  with  intent  so  to  do,  or  exposes  for  sale  or  ex- 
change, any  manufactured  imitations  of  furs  of  fur-bearing  animals, 
representing  the  same  to  be  the  genuine  fur  of  certain  animals,  shall  be 
punished  by  a  fine  of  not  less  than  two  hundred  nor  more  than  five 
hundred  dollars. 


Section  80. 


Conveying 
encumbered 

Mtfce!'"^""'      exists  thereon,  without  informing  the  grantee,  before  the  consideration  is 
G^l'iei'lfg    P^i<i'  of  the  existence  and  nature  of  such  encumbrance,  so  far  as  he  has    3 


^Mioever  conveys  land,  knowing  that  an  encumbrance     1 

9 


Chap.  266.]  crimes  ag.\inst  property.  2717 

4  knowledge  thereof,  shall  be  punished  by  imprisonment  for  not  more  than  p.  s.  203.  §  67. 

5  one  year  or  by  a  fine  of  not  more  than  one  thousand  dollars.  ^^'  ^'  ^°*'  ^  ®''' 

15  Gray.  189.  127  Mass.  285,  287.  136  Mass.  438. 

1  Section  81.     Whoever,  knowing  that  his  land  is  attached  on  mesne  Seiiingat- 

2  process,  sells  and  conveys  it  without  giving  notice  of  the  attachment  to  without Ifotice. 

3  the  grantee,  and  with  intent  to  defraud,  shall  be  punished  by  imprison-  §;  |;  \lf]  |  lo. 

4  ment  in  the  state  prison  for  not  more  than  tliree  years  or  in  jail  for  not  ^  f;  ^2°os  Vli 

5  more  than  one  year. 

1  Section  82.     Whoever,  with  a  fraudulent  intent  to  place  personal  ^ort'a''ed 

2  property  which  is  subject  to  a  mortgage  beyond  the  control  of  the  mort-  personal  prop- 

3  gagee,  removes  or  conceals  or  aids  or  abets  in  ^emo^"ing  or  concealing  the  issq,  246. 

4  same,  and  a  mortgagor  of  such  property  who  assents  to  such  removal  p.' s.' 203,' §69.' 

5  or  concealment,  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  fds^iiass.'  1^2^*' 

6  dollars  or  by  imprisonment  for  not  more  than  one  year.  112  Mass.  239. 

1  Section  83.     A  mortgagor  of  personal  property  who  sells  or  conveys  saie  by  mort- 

2  the  same  or  any  part  thereof  without  the  written  consent  of  the  mort-  fonsmrof"""' 

3  gagee,  and  without  informing  the  vendee  or  grantee  that  the  same  is  j^so^Hr' 

4  mortgaged,  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  pfjos'lfo' 

5  dollars  or  by  imprisonment  for  not  more  than  one  year.  R.  l-  208,  §  69. 

•^  8  Allen,  618.  10  Allen,  81.  105  Mass.  580.  153  Mass.  252. 

1  Section  84.     A  hirer  or  lessee  of  personal  property  who  sells  or  con-  s.aie  by  hirer. 

2  veys  the  same  or  any  part  thereof  without  the  written  consent  of  the  l\ty  wufiout""' 

3  owner  or  lessor,  and  \\'ithout  informing  the  vendee  or  grantee  that  it  is  issI^im. 

4  so  hired  or  leased,  shall  be  punished  by  a  fine  of  not  more  than  one  pfioi'lyf' 

5  hundred  dollars  or  by  imprisonment  for  not  more  than  one  year.  ^-  ^-  20s,  §  to, 

1  Section  85.     Whoever,    holding   collateral    security   deposited   with  Saie,  etc.,  of 

2  him  for  the  paj-ment  of  a  debt  which  may  be  due  to  him,  sells,  pledges,  rity''b"foreXbt 

3  lends  or  in  any  way  disposes  of  the  same  before  such  debt  becomes  due  and  1815,^213. 

4  payable,  without  the  authority  of  the  depositor  thereof,  shall  be  pun- p■|•^f'3l•|^'|• 
5  ished  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  f-^-  20s,  §  "i. 

6  in  jail  for  not  more  than  two  years. 

100  Mass.  1.  124  Mass.  185.  203  Mass.  108. 

118Mas.s.  427.  137  Mass.  315.  207  Mass.  32. 

1  Section  86.     Whoever,  with  intent  to  defraud,   buys,   receives  or  Buying,  etc., 

2  aids  in  concealing  personal  property,  knowing  it  to  be  hired  or  leased  or  etc!''^  p™perty. 

3  held  as  collateral  security,  shall  be  punished  by  a  fine  of  not  more  than  ^^i'iol'iri. 

4  one  hundred  dollars  or  by  imprisonment  for  not  more  than  one  year.       ^-  ^-  ^°*'  ^  '^■ 

1  Section  87.     Whoever,    being   in   possession    of   personal    property  Saie,  etc..  of 

2  received  upon  a  written  and  conditional  contract  of  sale,  with  intent  to  KiTon  con- 

3  defraud,  sells,  conveys,  conceals  or  aids  in  concealing  the  same  before  is7o°26r'''' 

4  performance  of  the  conditions  precedent  to  acquiring  the  title  thereto,  r  lTosVts 

5  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  '^o  ^lass.  dr. 

6  imprisonment  for  not  more  tlian  one  year. 

1  Section  88.     A  consignee  or  factor  who,  in  violation  of  good  faith  Consignee,  etc., 

2  and  with  intent  to  defraud  the  owners  thereof,  deposits  or  pledges,  as  de''p"olumgOT 

3  security  for  money  borrowed  by  him,  a  negotiable  instrument  received  eJtyfetl"™"' 


2718 


CRIMES  AGAINST  PROPERTY. 


[ClL\P.   266. 


1849,216,  §  6. 
G.  S.  161,  I  65. 
P.  S.  203  §  75. 
R.  L.  208,  §  74. 


by  him,  merchandise  consigned  or  intrusted  to  him,  or  a  bill  of  lading,  4 

certificate  or  order  for  the  delivery  of  merchandise;    or  who,  in  like  5 

\'iolation  and  \\'ith  like  intent,  disposes  of  or  applies  such  property  or  6 

evidence  of  property  to  his  own  use;  or  who,  in  like  violation  and  Anth  7 

like  intent,  disposes  of  or  applies  to  his  own  use  money  which  has  been  8 

raised  or  a  negotiable  instrument  which  has  been  acquired  by  the  sale  9 

or  other  disposition  of  such  property  or  evidence  of  property,  shall  be  10 

punished  by  a  fine  of  not  more  than  five  thousand  dollars  and  imprison-  1 1 

ment  for  not  more  than  five  years.  12 


Falsely  pre- 
tending to 
hold  a  degree, 
etc.,  or  grant- 
ing degrees 
without 

authority.     Use 
of  word  "uni- 
versity" or 
"college." 
1893,355.  §  1. 
R.  L.  208,  §  75. 
1919,  293.  §  4. 
221  Mass.  190. 
Op.  A.  G.  (1919) 
28. 


Section  89.  Whoever,  in  a  book,  pamphlet,  circular,  advertisement 
or  advertising  sign,  or  by  a  pretended  written  certificate  or  diploma,  or 
otherwise  in  writing,  knowingly  and  falsely  pretends  to  have  been  an 
officer  or  teacher,  or  to  be  a  graduate  or  to  hold  any  degree,  of  a  college 
or  other  educational  institution  of  this  commonwealth  or  elsewhere, 
which  is  authorized  to  grant  degrees,  or  of  a  public  school  of  this  com- 
monwealth, and  whoever,  without  the  authority  of  a  special  act  of  the 
general  court  granting  the  power  to  give  degrees,  offers  or  grants  degrees 
as  a  school,  college  or  as  a  private  indi^-idual,  alone  or  associated  with  9 
others,  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  10 
or  by  imprisonment  for  not  more  than  one  year,  or  both.  Any  indi-  11 
vidual,  school,  association,  corporation  or  institution  of  learning,  not  12 
ha^^ng  power  to  confer  degrees  under  a  special  act  of  the  general  court,  1.3 
using  the  designation  of  "university"  or  "college"  shall  be  punished  14 
by  a  fine  of  one  thousand  dollars;  but  this  shall  not  apply  to  any  educa-  15 
tional  institution  whose  name  on  July  ninth,  nineteen  hundred  and  nine-  16 
teen,  included  the  word  "university"  or  "college".  17 


^g^lldoJs™'  Section  90.  Whoever,  in  a  book,  pamphlet,  circular,  advertisement 
ism.'iss.  5  2.  or  advertising  sign,  or  otherwise  in  writing,  makes  any  false  and  fraudu- 
R.  L.  208,  §  76.  jgj.|^  statement  or  assertion  of  endorsement,  authority,  approval  or  sanc- 
tion of  an  incorporates!  college,  university  or  professional  school  in  this 
commonwealth  or  elsewhere,  or  of  officers  or  instructors  thereof,  as  a 
commendation  or  advertisement  of  a  person  or  of  his  services,  or  of 
goods,  wares,  commodities,  processes  or  treatment,  shall  be  punished 
by  a  fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  for 
not  more  than  one  year,  or  both. 


Untrue  and 
misleading  ad- 
vertisementa 
prohibited. 
1902,  397. 
1912,  489. 
1914,  288. 
1916,  149. 


Section  91 .  Any  person  who,  -nith  intent  to  sell  or  in  any  way  dis- 
pose of  merchandise,  securities,  service,  or  anything  offered  by  such  per- 
son, directly  or  indirectly,  to  the  public  for  sale  or  distribution,  or  who, 
with  intent  to  increase  the  consumption  of  or  demand  for  such  merchan- 
dise, securities,  service  or  other  thing,  or  to  induce  the  public  in  any 
manner  to  enter  into  any  obligation  relating  thereto,  or  to  acquire  title 
thereto,  or  an  interest  therein,  makes,  publishes,  disseminates,  circulates 
or  places  before  the  public,  or  causes,  directly  or  indirectly,  to  be  made, 
published,  disseminated,  circulated  or  placed  before  the  public  within  9 
the  commonwealth,  in  a  newspaper  or  other  publication,  or  in  the  form  10 
of  a  book,  notice,  handbill,  poster,  bill,  circular,  pamphlet  or  letter,  or  11 
in  any  other  way,  an  advertisement  of  any  sort  regartling  merchandise,  12 
securities,  service  or  anything  so  offered  to  the  public,  which  ad\'ertise-  13 
ment  contains  any  assertion,  representation  or  statement  of  fact  which  14 
is  untrue,  deceptive  or  misleading,  and  which  such  person  knew,  or  15 


Chap.  266.]  crimes  against  property.  2719 

16  might  on  reasonable  investigation  have  ascertained  to  be  untrue,  decep- 

17  tive  or  misleading,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor 

18  more  than  five  hundred  dollars;  provided,  that  this  section  shall  not 

19  apply  to  any  o'WTier,  publisher,  printer,  agent  or  employee  of  a  newspaper 

20  or  other  publication,  periodical  or  circular,  or  to  any  agent  of  the  adver- 

21  tiser  who  in  good  faith  and  without  knowledge  of  the  falsity  or  deceptive 

22  character  thereof  publishes,  causes  to  be  published,  or  participates  in  the 

23  publication  of  such  advertisement. 

1  Section  92.    Whoever  wilfully  and  with  intent  to  defraud  makes  or  Publishing 

2  publishes,  or  causes  or  permits  to  be  made  or  published  in  any  way  what-  exaggcra'ted 

3  ever,  any  book,  prospectus,  notice,  report,  statement,  exhibit,  adver-  prohKed'^  etc. 

4  tisement  or  other  publication  of  or  concerning  the  affairs,  financial  con-  j^J'  ^ 

5  dition,  property  or  assets  of  any  corporation,  joint  stock  association, 

6  partnership  or  indi\'idual,  which  said  book,  prospectus,  notice,  report, 

7  statement,   exhibit,  advertisement  or  other  publication  contains  any 

8  statement  which  is  false  or  wilfully  exaggerated  and  which  shall  have  a 

9  tendency  to  give  a  less  or  greater  apparent  value  to  the  shares,  bonds, 

10  property  or  assets  of  such  corporation,  joint  stock  association,  partner- 

11  ship  or  individual,  or  any  part  of  said  shares,  bonds,  property  or  assets, 

12  than  said  shares,  bonds,  property  or  assets  or  any  part  thereof  shall  really 

13  and  in  fact  possess,  shall  be  punished  by  a  fine  of  not  more  than  five 

14  thousand  dollars  or  by  imprisonment  for  not  more  than  ten  years,  or 

15  both. 

1  Section  93.     Whoever,  by  a  false  pretence,  obtains  from  any  club,  obtaining  or 

2  association,  society  or  company  for  improving  the  breed  of  cattle,  horses,  pedigree  oF 

3  sheep,  swine  or  other  domestic  animals,  the  registration,  or  a  certificate  igg^ns. 

4  thereof,  of  any  animal  in  the  herd  register,  or  any  other  register  of  such  ^^l'  l^-_  1 1^_ 

5  club,  association,  society  or  company,  or  a  transfer  of  such  registration, 

6  or  whoever  knowingly  makes,  exhibits  or  gives  a  false  pedigree  in  writing 

7  of  any  animal,  shall  be  punished  by  imprisonment  for  not  more  than 

8  two  years  or  by  a  fine  of  not  more  than  five  hundred  dollars,  or  both. 

1  Section  94.     Whoever    wilfully,    intentionally    and    without    right  gt'^u'ction'ol"^ 

2  breaks  down,  injures,  removes  or  destroys  a  monument  erected  for  the  boundary 

(.,••11  1'  i»  j?j_j-  Ij-i;  nionument, 

3  purpose  of  designatmg  tlie  boimdaries  ot  a  town  or  or  a  tract  or  lot  or  milestone,  etc. 

4  land,  or  a  tree  which  has  been  marked  for  that  purpose,  or  so  breaks  1823;  113,  §  i. 

5  down,  injiu-es,  removes  or  destroys  a  milestone,  mileboard  or  guideboard  §:  1:  m]  |  m. 

6  erected  upon  a  public  way  or  railroad,  or  wilfully,  intentionally  and  fgo^i.llis.V 

7  without  right  defaces  or  alters  the  inscription  on  any  such  stone  or  board,  J'gg'inTss. 

8  or  wilfully,  intentionally  and  without  right  mars  or  defaces  a  building 

9  or  signboard,  or  extinguishes  a  light,  or  breaks,  destroys  or  removes  a 

10  lamp,  lamp  post,  railing  or  post  erected  on  a  bridge,  sidewalk,  public  way, 

11  court  or  passage,  shall  be  punished  by  imprisonment  for  not  more  than 

12  six  months  or  by  a  fine  of  not  more  tlian  fifty  dollars. 

1  Section  95.     Whoever   wilfully   or   maliciously   removes,    displaces.  Malicious  de- 

2  destroys,  defaces,  mars  or  injures  any  monument,  tablet  or  other  device  historirai" 

3  erected  to  mark  an  historic  place  or  to  commemorate  an  historic  event  yggg^S'' 

4  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  ^^-  ^-  ^°*'  ^  "''• 

5  imprisonment  for  not  more  than  one  year. 


76. 
2. 
"S. 
473. 


2720 


CRIMES  AGAINST  PKOPERTY. 


[ClL\P.   266. 


bmidiig^of'the       Section  96.    Whoever  -n-ilfully,  intentionally  and  without  right  de-  1 

iss^ns^"'*'"'  f^'^^s,  mars  or  injures  the  -n'alls,  wainscoting  or  any  other  part  of  any  2 

Rs.'ii  §8.      building  belonging  to  the  commonwealth,  or  the  appurtenances  thereof,  3 

p.'  s.  203,  §  77.   by  cutting,  writing  or  otherwise,  shall  be  punished  by  a  fine  of  not  less  4 

R.  L.  208,  §  80.  than  five  nor  more  than  one  hundred  dollars.  5 


Defacing 
building  of 
county. 
1899,  196,  §  1. 
R.  L.  208,  §  81. 


Section  97.     Whoever  wilfully  mars  or  injures  the  walls,  wainscoting  1 

or  any  other  part  of  a  court  house,  or  of  any  other  building  or  room  used  2 

for  county  business,  or  the  appurtenances  thereof,  by  cutting,  writing  or  3 

otherwise,  shall  be  punished  by  imprisonment  for  not  more  than  two  4 

months  or  by  a  fine  of  not  more  than  fifty  dollars.  5 


wilful  injury, 
etc.,  to  school- 
house,  church, 
etc.,  or  furni- 
ture, etc. 
1857,  222. 
G.  S.  161,  §  67. 
P.  S.  203,  §  78. 
1901,  208,  §  4. 
R.  L.  208.  §  82. 
2  Allen,  159. 


Section  98.     Wlioever  wilfully,  intentionally  and  without  right,  or  1 

wantonly  and  without  cause,  destroys,  defaces,  mars  or  injures  a  school-  2 

house,  church  or  other  building  erected  or  used  for  purposes  of  education  3 

or  religious  instruction,  or  for  the  general  diffusion  of  knowledge,  or  an  4 

outbuilding,  fence,  well  or  appurtenance  of  such  schoolhouse,  church  5 

or  other  building,  or  furniture,  apparatus  or  other  property  belonging  6 

thereto  or  connected  therewith,  shall  be  punished  by  a  fine  of  not  more  7 

than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  one  8 

year.  9 


Defacement  of 
books,  etc.,  of 
libraries. 
1867,  69. 
1872,  42. 
P.  S.  203,  §  79. 
1883,81. 
1901,  268,  §  4. 
R.  L.  208,  §  83. 


Section  99.     Whoever  wilfully,  intentionally  and  without  right,  or  1 

wantonly  and  without  cause,  'WTites  upon,  injures,  defaces,  tears  or  2 

destroys  a  book,  plate,  picture,  engraving,  map,  newspaper,  magazine,  3 

pamphlet,  manuscript  or  statue  wliich  belongs  to  a  law,  city,  town  or  4 

other  public  or  incorporated  library  shall  be  punished  by  a  fine  of  not  5 

less  than  five  nor  more  than  fifty  dollars  or  by  imprisonment  for  not  6 

more  than  six  months.  7 


Detention  of 
books  of 
libraries. 
1SS3,  77. 
1901,  268,  §  4. 
R.  L.  208,  §  84. 


Section  100.     Whoever   wilfully,    intentionally   and   without   right,  1 

or  wantonly  and  without  cause,  detains  a  book,  newspaper,  magazine,  2 

pamphlet  or  manuscript  which  belongs  to  a  law,  city,  town  or  other  3 

public  or  incorporated  library  for  thirty  days  after  a  written  notice  from  4 

the  librarian  thereof,  containing  a  copy  of  this  section  and  given  after  5 

the  expiration  of  the  time  during  which,  by  the  regulations  of  such  library,  6 

such  book,  newspaper,  magazine,  pamphlet  or  manuscript  may  be  kept,  7 

shall  be  punished  by  a  fine  of  not  less  than  one  nor  more  than  twenty-five  8 

dollars  or  by  imprisonment  for  not  more  than  sbc  months.  9 


Malicious 
explosion. 
1851,  129,  §  1. 
G.  S.  161,  §  68. 
P.  S.  203,  §  SO. 
1901,268,14 
R.  L.  208,  §  85. 
1914,  635. 

1918,  257,  §464. 

1919,  5. 

1920,  2. 


Section  101.     Whoever  wilfully,  intentionally  and  without  right,  by  1 

the  explosion  of  gunpowder  or  of  any  other  explosive,  unlawfully  destroys  2 

or  injures  a  dwelling  house,  office,  shop  or  other  building,  or  a  ship  or  3 

vessel,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  4 

than  tn-enty  years  or  in  jail  for  not  more  than  two  and  one  half  years  or  5 

by  a  fine  of  not  more  than  one  thousand  dollars.  6 


Throwing  ex- 
plosives into 
buildings  or 
placing  on 
railways,  etc. 
1851,  129,  §  2. 
G.  S.  161,  §  69. 
P.  S.  203,  §  81. 
1901,  268,  §  4. 
R.  L.  208,  §  86. 
1904,  396. 


Section  102.     Whoever   wilfully,    intentionally    and   without   right  1 

throws  into,  against  or  upon,  or  puts,  places  or  explodes,  or  causes  to  be  2 

exploded  in,  upon  or  near  a  dwelling  house,  office,  shop,  building,  street  3 

railway,  street  railway  car,  or  vessel,  gunpowder  or  other  explosive,  or  a  4 

bombshell,  torpedo  or  other  instrument  filled  or  loaded  with  an  explosive,  5 

with  intent  unlawfully  to  destroy  or  injure  such  dwelling  house,  office,  6 


Ch.\P.   266.]  CRIMES  AGAINST  PROPERTY.  2721 

7  shop,  building,  street  railway,  street  railway  car,  or  vessel,  or  any  person  isoe,  463, 

8  or  property  therein  or  thereon,  shall  be  punished  by  imprisonment  in  the  1914. 635°'  '    ' 

9  state  prison  for  not  more  than  ten  years  or  in  jail  for  not  more  than  two  igJI;  5^^'  ^^^^^ 
10  and  one  half  years  or  by  a  fine  of  not  more  than  five  hundred  dollars.       |?7  Mass  iss 

1  Section  103.     Whoever   wilfully,    intentionally    and    without   right  Throwing  oil 

2  throws  into,  against  or  upon  a  dwelling  house,  office,  shop  or  other  build-  tarVetc" 

3  ing,  or  vessel,  or  puts  or  places  therein  or  thereon  oil  of  vitriol,  coal  tar  c^s.  Hi',  I lo. 

4  or  other  noxious  or  filthy  substance,  with  intent  unlawfully  to  injure,  fgo^i.afs',^?' 

5  deface  or  defile  such  dwelling  house,  office,  shop,  building  or  vessel,  or  ^gj^-  Hf  ^  ^^■ 

6  any  property  therein,  shall  be  punished  by  imprisonment  in  the  state  L^.^g*-- 

7  prison  for  not  more  than  five  years  or  in  jail  for  not  more  than  two  and  laaoi  2! 

8  one  half  years  or  by  a  fine  of  not  more  than  three  hundred  dollars. 

1  Section  104.     Whoever    wilfully,    intentionally    and    without   right  ini"jy  to 

2  destroys,  injures,  defaces  or  mars  a  dwelling  house  or  other  building,  1862,  leb. 

3  whether  upon  the  inside  or  outside,  shall  be  punished  by  imprisonment  1901. 2fi8,  §  5.' 

4  for  not  more  than  two  months  or  by  a  fine  of  not  more  than  fifty  dollars,   uo'iust'.  lo^i*' 

1  Section  105.    Whoever  wilfully  and  without  right  pulls  down  or  re-  PuiHng  down 

2  moves  any  portion  of  a  stone  wall  or  fence  which  is  erected  or  maintained  fences"" 

3  for  the  purpose  of  enclosing  land  shall  be  punished  by  a  fine  of  not  more  r°l'. 208]  §  91. 

4  than  ten  dollars.    The  director  of  the  division  of  fisheries  and  game  of  jgjgj  350  §  40 

5  the  department  of  conservation,  fish  and  game  wardens  and  deputy  fish 

6  and  game  wardens  may  arrest  without  a  warrant  any  person  found  vio- 

7  lating  this  section. 

1      Section  106.    Whoever  wilfully,  intentionally  and  without  right  or  injury,  etc., 

2   1'  i         •     •  il  '         J  1      X  •  to  ice  taken  as 

license,  cuts,  mjures,  mars  or  otherwise  damages  or  destroys  ice  upon  merchandise. 

3  waters  from  which  ice  is  or  may  be  taken  as  an  article  of  merchandise,  g!^s ;  id*;  §  73. 

4  whereby  the  taking  thereof  is  hindered  or  the  value  thereof  diminished  fg(5i_|eg  \^e; 

5  for  that  purpose,  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  R-  l.  20s,  §  92. 

6  dollars. 

1  Section  107.    Whoever   wilfully,   intentionally   and   without   right  l^'^^^  f'^-^^ 

2  breaks  down,  injures,  removes  or  destroys  a  public  bridge,  or  a  lock,  cul-  R.  s.  i26,'  §  41. 

3  vert  or  embankment  of  a  canal,  or  wilfully,  intentionally  and  without  p.'  s.'  203.'  §  s?.' 

4  right  makes  an  aperture  or  breach  in  such  embankment  with  intent  to  r.°l.  lot,  §  93. 

5  destroy  or  injure  the  same,  shall  be  punished  by  imprisonment  in  the 

6  state  prison  for  not  more  than  five  years  or  by  a  fine  of  not  more  than 

7  five  hundred  dollars  and  imprisonment  in  jail  for  not  more  than  two 

8  years. 

1  Section  108.     Whoever  casts  away,  burns,  sinks  or  otherwise  destroys  Destroying 

2  a  ship  or  vessel,  with  intent  to  injure  or  defraud  an  owner  thereof,  or  of  frTud  owner 

3  any  property  laden  on  board  the  same,  or  an  insurer  of  such  ship,  vessel  isoSi'is"'!  i. 

4  or  property,  or  of  any  part  thereof,  shall  be  punished  by  imprisonment  e*^s.' ile,' 1 35. 

5  in  the  state  prison  for  not  more  than  ten  years. 

G.  S.  161,  §  76.  P.  S.  203,  §  89.  R.  L.  208,  §  94. 

1  Section  109.     Wlioever  lades,  equips  or  fits  out,  or  assists  in  lading.  Fitting  out 

2  equipping  or  fitting  out,  a  ship  or  vessel,  with  intent  that  it  shall  be  wil-  i^ntent  to' 

3  fully  cast  away,  burnt,  sunk  or  otherwise  destroyed,  and  with  intent  to  i802.°i3fi,'f  2'.' 

4  injure  or  defraud  an  owner  or  insurer  of  such  ship  or  vessel,  or  of  any  R^s'ilgjlfe. 


2722 


CRIMES  AGAINST  PROPERTY. 


[Ch.\p.  266. 


property  laden  on  board  the  same,  shall  be  punished  by  imprisonment 


two  and  one  half  years. 


Section  110.  An  owner  of  a  ship  or  vessel,  or  of  property  laden  or 
pretended  to  be  laden  on  board  the  same,  or  any  other  person  concerned 
in  the  lading  or  fitting  out  of  a  ship  or  vessel,  who  makes  out  or  exhibits, 
or  causes  to  be  made  out  or  e>diibited,  a  false  or  fraudulent  invoice,  bill 


False  invoice, 
etc.,  of  cargo 
to  defraud  in- 
surer, etc. 
1802,  136,  §  3. 
R.  S.  126,  §  37. 
G.  S.  161,  §  78. 

R.  L.  208,  §  96.  of  lading,  bill  of  parcels  or  other  false  estimates  of  any  goods  or  property 
laden  or  pretended  to  be  laden  on  board  such  ship  or  vessel,  with  intent 
to  injure  or  defraud  an  insurer  of  such  ship,  vessel  or  property  or  of  any 
part  thereof,  shall  be  punished  by  imprisonment  in  the  state  prison  for 
not  more  than  ten  years  or  by  a  fine  of  not  more  than  five  thousand  doUars 
and  imprisonment  in  jail  for  not  more  than  two  years. 


G.  S.  161,  5  77. 
p  ^  on^   &  on 

r'  l.  208,  §'95.  in  the  state  prison  for  not  more  than  twenty  years  or  by  a  fine  of  not  more 

1918!  257%  464.  than  five  thousand  dollars  and  imprisonment  in  jail  for  not  more  than    7 
1919!  5.  ' 
1920,  2. 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 


False  protest,        SECTION  111.     A  mastcr,  ofSccr  or  mariner  of  a  ship  or  vessel  who 

R°i'  ill'  I  Is    Drakes  or  causes  to  be  made  or  swears  to  a  false  affidavit  or  protest,  or  an 

p' I' 203' 1 9?'  o^'ii^i"  of  oi"  other  person  concerned  in  such  ship  or  vessel,  or  the  owner  of 

R.  L.  208,  i  97.  or  the  person  concerned  in  the  goods  or  property  laden  on  board  the 

same,  who  procures  such  false  affidavit  or  protest  to  be  made,  or  exliibits 

the  same,  with  intent  to  injure,  deceive  or  defraud  an  insurer  of  such  ship 

or  vessel,  or  of  anj'  goods  or  property  laden  on  board  the  same,  shall  be 

punished  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years 

or  by  a  fine  of  not  more  than  five  thousand  dollars  and  imprisonment  in 

jail  for  not  more  than  two  years. 


Malicious 
killing,  etc., 
of  cattle. 
1804, 131,  §  4. 
R.  S.  126,  §  39. 
G.  S.  161,  §  80. 
P.  S.  203,  §  93. 
R.  L.  208.  §  98. 
1  Mass.  59. 
3  Gush.  558. 
9  Gray,  299, 
304, 
lOSMass.  460. 

Cutting  timber, 
wood,  shrubs, 
etc.,  on  land 
of  another. 
1698,  7,  |§  1,  2. 
1723^,  10, 
«1.2. 
1726-7,  3. 
I§  1.  2. 
1727,  S. 
1785,  28,  I  1. 
1818,3,  §§2.4. 
R.  S.  126, 
IH't.4S. 
G.  S.  161, 
§181,84. 
1868,  321: 
P.  S.  203, 
§§94,97. 
R.  L.  208,  §  99. 
1904.  444,  §  1. 
141  Mass.  238. 


Section  112.  ^^^loeve^  wilfully  and  maliciously  kills,  maims  or  dis- 
figures any  horse,  cattle  or  other  beast  of  another  person,  or  wilfully 
and  maliciously  administers  or  exposes  poison  with  intent  that  it  shall 
be  taken  or  swallowed  by  any  such  beast,  shall  be  punished  by  imprison- 
ment in  the  state  prisQn  for  not  more  than  five  years  or  by  a  fine  of  not 
more  than  one  thousand  dollars  and  imprisonment  in  jail  for  not  more 
than  one  year.  213  Mass.  135. 


Malicious 
injuries  to 
trees,  fences, 

1698.  7,  §  1. 
1785,  28,  §  1 
1829,  63. 
R.  S.  126,  §  42. 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 

1 
2 

3 
4 
5 

6 

7 


Section  113.  AMioever  wilfully  cuts  down  or  destroys  timber  or  wood  1 
standing  or  growing  on  the  land  of  another,  or  carries  away  any  kind  of  2 
timber  or  wood  cut  down  or  lying  on  such  land,  or  digs  up  or  carries  away  3 
stone,  ore,  gravel,  clay,  sand,  turf  or  mould  from  such  land,  or  roots,  nuts,  4 
berries,  grapes  or  fruit  of  any  kind  or  any  plant  there  being,  or  cuts  down  5 
or  carries  away  sedge,  grass,  hay  or  any  kind  of  corn,  standing,  growing  6 
or  being  on  such  land,  or  cuts  or  takes  therefrom  any  ferns,  flowers  or  7 
shrubs,  or  carries  away  from  a  wharf  or  landing  place  any  goods  in  which  8 
he  has  no  interest  or  property,  without  the  license  of  the  owner  thereof,  9 
shall  be  punished  by  imprisonment  for  not  more  than  six  months  or  by  a  10 
fine  of  not  more  than  five  hundred  dollars;  and  if  the  offence  is  committed  11 
on  Sunday,  or  in  disguise,  or  secretly  in  the  night  time,  the  imprisonment  12 
shall  not  be  for  less  than  five  days  nor  the  fine  less  than  five  dollars.         13 


Section  114.     ^^'hoever  wilfully  and  maliciously  or  wantonly  breaks 
glass  in  a  building  which  is  not  his  own,  or  whoe^'er  wilfully  and  ma- 
liciously breaks  down,  injures,  mars  or  defaces  a  fence  belonging  to  or 
enclosing  land  which  is  not  his  own,  or  wilfully  and  maliciously  throws 
G.  s.  iei!  i  82.  down  or  opens  a  gate,  bars  or  fence,  and  leaves  the  same  down  or  open, 


ClL\P.   266.]  CRIMES  AGAINST   PROPERTY.  2723 

6  or  maliciously  and  injuriously  severs  from  the  freehold  of  another  any  ises,  321. 

7  produce  thereof  or  anything  attached  thereto,  shall  be  punished  by  im-  r.l.Ios.^^^' 

8  prisonment  for  not  more  than  six  months  or  by  a  fine  of  not  more  than  Iq^^'su,  §  30. 

9  five  hundred  dollars.  ll  Cush.  414.  127  Mass.  1.  200  Mass.  175. 

1  Section  115.     Whoever  wilfully  and  maliciously  enters  an  orchard,  J/ctfrT '°r. 

2  nursery,  garden  or  cranberry  meadow,  and  takes  away,  mutilates  or  den  etc". 

3  destroys  a  tree,  shrub  or  vine,  or  steals,  takes  and  carries  away  any  fruit  ims,  7.'§  i.' 

4  or  flower,  without  the  consent  of  the  owner  thereof,  shall  be  punished  by  g.^s!  tfi.  §  83. 

5  a  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not  i?s*'2ra!'§  96. 

6  more  than  six  months.  R.  L.  20s,  §  105.  6  Gray,  349.  228  Mass.  308. 

1  Section  116.     Whoever,  being  an  unnaturalized,  foreign  born  person,  picking  of 

2  picks  wild  berries  or  flowers,  or  camps  or  picnics  upon  any  land  of  which  by'unnatu^rai- 

3  he  is  not  the  owner,  within  the  counties  of  Barnstable  or  Plymouth,  bOTn'°ereon3 

4  between  April  first  and  December  first,  without  first  obtaining  a  written  iuBamstabie 

5  permit  so  to  do  from  the  owner  or  owners  of  the  land,  shall  be  punished  counties 

6  by  a  fine  of  not  more  than  fifty  dollars  or  by  imprisonment  for  not  ifiS^s,' 

7  more  than  one  month,  or  both.     The  said  written  permit  shall  not  be  ^^  ^'  ^' 

8  transferable,  and  shall  be  exhibited  upon  demand  to  the  forest  warden, 

9  or  his  deputies,  of  the  town  wherein  the  land  is  located,  or  upon  demand 

10  of  any  sherift",  constable,  police  or  other  officer  authorized  to  arrest  for 

11  crime.     Failure  or  refusal  to  produce  said  permit  upon  such  demand 

12  shall  be  prima  facie  evidence  of  a  violation  of  this  section,  and  any 

13  forest  warden  or  any  duly  authorized  deputy  forest  warden,  sherift', 

14  police  or  other  officer  authorized  to  arrest  for  crime,  may  arrest  witliout 

15  warrant  any  person  who  fails  or  refuses  to  display  for  inspection  the  said 

16  permit  upon  the  demand  of  any  of  the  officials  named  in  this  section. 

1  Section  117.     Whoever  wilfully,  intentionally  and  without  right  enters  Entering 

2  upon  the  orchard,  garden  or  other  improved  land  of  another,  with  intent  vMi^inie'at." 

3  to  cut,  take,  carry  away,  destroy  or  injure  the  trees,  grain,  grass,  hay,  r°s.  126,  §  45. 

4  fruit  or  vegetables  there  growing  or  being,  sliall  be  punished  by  imprison-  ^gg|  ^^j'j'  ^  ^*- 

5  ment  for  not  more  than  six  months  or  by  a  fine  of  not  more  than  five  hun-  ?•  s-  203.  §  97. 

6  dred  dollars;  and  if  the  ofi'ence  is  committed  on  Sunday,  or  in  disjruise,  §  lois. 

7  or  secretly  in  the  night  time,  the  imprisonment  shall  not  be  for  less  than  22s  Masai  sos.' 

8  five  days  nor  the  fine  less  than  five  dollars. 

1  Section  118.     Whoever,   having  the  charge  or   custody   of   sheep.  Suffering  ani- 

2  goats,  cattle,  horses,  swine  or  fowl,  wilfully  suffers  or  permits  them  to  "a'^s^oniand. 

3  enter  or  remain  on  or  pass  over  any  orchard,  garden,  mowing  land  or  isyi;™*'' 

4  other  improved  or  enclosed  land  of  another,  after  being  forbidden  so  to  ]^-  *];  ^^^^  ^  ^^■ 

5  do  in  writing  or  by  notice  posted  thereon  by  the  owner  or  occupant  thereof,  5 107. 

6  or  by  the  authorized  agent  of  such  owner  or  occupant,  shall  be  punished 

7  by  a  fine  of  not  more  than  ten  dollars. 

1  Section  119.     Whoever    knowingly    brings    the    insects    which    are  Transportation 

2  known  as  the  ocneria  dispar  or  gj^psy  moth  or  as  the  brown  tail  moth,  "nse"!""""^ 

3  or  their  nests  or  eggs,  into  the  commonwealth,  or  whoever  knowingly  is"?;  210^/7. 

4  transports  said  insects  or  their  eggs  or  nests  from  one  town  to  another  J^^f,;  Iqs!  ^  ^' 

5  in  the  commonwealth,  except  when  engagi^d  in,  and  for  the  purpose  of,  ^  ^°*- 

6  destroying  them,  shall  be  punished  by  a  fine  of  not  more  than  two  hundred 

7  dollars  or  by  imprisonment  for  not  more  than  two  months,  or  both. 


2724 


CRIMES   AGAINST   PROPERTY. 


[CH.1P.   266. 


Trespass  on 
improved  or 
enclosed  land. 
1862,  S9. 
1876,  181. 
P.  S.  203, 
§§  99,  100. 
1890,  410. 
R.  L.  208, 
§  109. 

162  Mass.  SS2. 
164  Mass.  495. 


Section  120.     Whoever,  without  right,  enters  or  remains  in  or  upon  1 

tlie  dwelling  house,  buildings  or  improved  or  enclosed  land  of  another,  2 

after  having  been  forbidden  so  to  do  by  the  person  who  has  the  lawful  3 

control  of  said  premises,  either  directly  or  by  notice  posted  thereon,  shall  4 

be  punished  by  a  fine  of  not  more  than  twenty  dollars.    A  person  who  is  5 

found  committing  such  trespass  may  be  arrested  by  a  sheriff,  deputy  6 

sheriff,  constable,  watchman  or  police  officer  and  kept  in  custody  in  a  7 

convenient  place,  not  more  than  twenty-four  hours,  Sunday  excepted,  8 

until  a  complaint  can  be  made  against  him  for  the  offence,  and  he  be  taken  9 

upon  a  warrant  issued  upon  such  complaint.  10 


Entry  on  land 
with  firearms. 
1890,  403,  §  1. 
R.  L.  208, 
§  110. 


Section  121.     Whoever,  without  right,  enters  upon  the  land  of  another  1 

with  firearms,  with  intent  to  fire  or  discharge  them  thereon,  and,  having  2 

been  requested  by  the  owner  or  occupant  of  such  land  or  by  his  agent  3 

to  leave  such  land,  remains  thereon,  shall  be  punished  by  a  fine  of  not  4 

more  than  two  hundred  dollars  or  by  imprisonment  for  not  more  than  5 

two  mouths,  or  both.  6 


Defacement  of 
notice  against 
trespassers. 
1890,  403,  §  2. 
R.  L.  208, 
§  111. 


Section  122.     Whoever  wilfully  tears  down,  removes  or  defaces  any  1 

notice  posted  on  land  by  the  owner,  lessee  or  custodian  thereof,  warning  2 

persons  not  to  trespass  thereon,  shall  be  pimished  by  a  fine  of  not  more  3 

than  twentv-five  dollars.  4 


Trespassing 
upon  land  of 
certain  insti- 
tutions. 
1885,  303. 
R.  L.  208, 
§112. 
1903,  434. 
1906,  243. 
1911,  104; 
181;  194. 

1913,  404. 

1914,  358. 

1918,  257, 
§307. 

1919,  5. 

1920,  2. 


Section  123.     Wlioever  wilfully  trespasses  upon  land  or  premises  1 

belonging  to  the  commonwealth  and  appurtenant  to  the  state  prison,  2 

Massachusetts  reformatory,  reformatory  for  women,  the  prison  camp  3 

and  hospital,  state  infirmary,  state  farm,  Norfolk  state  hospital,  any  4 

public  institution  for  the  care  of  insane,  feeble  minded  or  epileptic  per-  5 

sons,  any  Massachusetts  training  school,  state  charitable  institution,  or  6 

upon  land  or  premises  belonging  to  any  county  and  appurtenant  to  a  7 

jail  or  house  of  correction,  or,  after  notice  from  an  officer  of  any  of  said  8 

institutions  to  leave  said  land,  remains  thereon,  shall  be  punished  by  9 

imprisonment  for  not  more  than  tliree  months  or  by  a  fine  of  not  more  10 

than  fifty  dollars.  11 


Malicious 
injury  to  legal 
notice. 
1883,  156. 
R.  L.  208, 
§  113. 


Section  124.    Whoever  wilfully  and  maliciously,  or  wantonly  and  1 

without  cause,  tears  down,  removes  or  defaces  a  warrant  for  a  town  2 

meeting,  list  of  jurors  or  other  notice  or  paper  which  has  been  posted  3 

in  compliance  witli  law  shall,  except  as  otherwise  provided,  be  punished  4 

by  a  fine  of  not  more  than  ten  dollars.  5 


Malicious 
injury  to  show 
bill,  etc. 
1870.  259. 
P.  S.  203, 
§  101. 
R.  L.  208, 
§114. 


Section  125.    Wlaoever  wilfully  and  maliciously  removes,  destroys  1 

or  mutilates  a  show   bill,   placard,   program   or  other  advertisement  2 

posted  upon  a  wall,  fence,  billboard  or  structure  not  lawfully  under  his  3 

control,  of  an  exhibition,  show  or  amusement  licensed  under  section  one  4 

hundred  and  eighty-one  of  chapter  one  hundred  and  forty,  before  such  5 

exhibition,  show  or  amusement  has  taken  place,  shall  be  punished  by  6 

a  fine  of  not  more  than  ten  dollars.  7 


Section  126.    Whoever  paints,  or  puts  upon,  or  in  any  manner    1 
affixes  to,  any  fence,  structure,  pole,  rock  or  other  object  which  is  the    2 

3 
4 


Defacing 
natural 
scenery. 
1873,  349. 

P-|-203  §102.  property  of  another,  whether  "VN^thin  or  without  the  Hmits  of  the  high 
R.L.'2os,'§ii5.  way,  any  words,  device,  trade  mark,  advertisement  or  notice  which  is 


CH.4.P.   266.]  CRIMES   AGAINST  PROPERTY.  2725 

5  not  required  by  law  to  be  posted  thereon,  without  first  obtaining  the 

6  WT-itten  consent  of  the  owner  or  tenant  of  such  property,  shall,  upon 

7  complaint  of  such  owner,  or  of  his  tenant,  or  of  any  municipal  or  public 

8  officer,  be  punished  by  a  fine  of  not  more  than  ten  dollars.    Any  word, 

9  device,  trade  mark,  advertisement  or  notice  which  has  been  painted, 

10  put  up  or  affixed  within  the  limits  of  a  highway  in  violation  of  this 

11  section  shall  be  considered  a  public  nuisance,  and  may  be  forthwith 

12  removed  or  obliterated  and  abated  by  any  person. 

1  Section  127.     'Wlioever  destroys  or  injures  the  personal  property  of  J^.a^nio°"n°'' 

2  another  in  any  manner  or  by  any  means  not  particularly  described  or  '"■■''■s  to 

3  mentioned  in  this  chapter  shall,  if  such  destruction  or  injury  is  wilful  property. 

4  and  malicious,  be  punished  by  imprisonment  in  the  state  prison  for  not  i846, 52,'§  i. 

5  more  than  five  years  or  by  a  fine  of  not  more  than  one  thousand  dollars  p.s.'203,'§ io.i 

6  and  imprisonment  in  jail  for  not  more  than  one  year,  or,  if  such  destruc-  1904'. lol'.^^^^' 

7  tion  or  injury  is  wanton,  shall  be  punished  by  a  fine  of  not  more  than  gcuJjj'jjg 

8  five  hundred  dollars  or  by  imprisonment  for  not  more  than  one  year;  S^ff^'lty 

9  but  if  the  value  of  the  property  so  destroyed  or  injurefl  is  not  alleged  to  107  Mass.  213. 

10  exceed  fifteen  dollars,  the  punislunent  shall  be  a  fine  of  not  more  than  194  Mass!  97. ' 

1 1  fifteen  dollars  or  imprisonment  for  not  more  than  one  month.  ^^*  *'^^^'  ^°*' 

1  Section  128.     "Wlioever,  without  the  consent  of  the  owner  thereof,  ^uk  rans. 

2  knowingly  and  wilfully  effaces,  alters  or  covers  over,  or  procures  to  be  Jf^L'ios' 

3  effaced,  altered  or  covered  over,  the  name,  initial  or  device  of  any  dealer  §  ii7. 

4  in  milk,  marked  or  stamped  upon  a  milk  can,  or  whoever,  with  intent 

5  to  defraud  and  without  such  consent,  detains  or  uses  in  his  business  any 

6  such  can  having  the  name,  initial  or  device  of  any  dealer  in  milk  so 

7  marked  or  stamped  thereon,  shall  be  punished  by  a  fine  of  not  more  than 

8  ten  dollars. 

1  Section  129.     Whoever,  being  a  convict  in  the  state  prison,  wilfully  injurj-to 

2  and  maliciously  destroys  or  injures  the  property  of  the  commonwealth  at  stTt^"ri'son. 

3  such  prison  or  the  property  of  any  person  who  furnishes  materials  for  the  J|^J;  |^|; 

4  emplovTnent  of  the  prisoners,  may  be  punished  by  imprisonment  in  the  ?iJ'9^°*' 

5  state  prison  for  not  more  than  three  years;   or  if  serving  a  sentence  of 

6  imprisoimient  for  life,  he  may  be  punished  by  imprisonment  at  solitary 

7  labor  for  not  more  than  one  year  or  by  solitary  imprisonment  for  not 

8  more  than  five  days,  or  both,  and  such  punishment  shall  be  inflicted  at 

9  such  time  as  the  court  orders. 

1  Section  130.     Whoever,  being  a  prisoner  at  the  Massachusetts  re-  injury  to 

2  formatory,  the  reformatory  for  women,  the  state  farm,  the  prison  camp  pfh?r  pLti 

3  and  hospital,  any  jail  or  house  of  correction,  wilfully  and  maliciously  'i"s9fi'"34™^' 

4  injures  or  destroys  any  public  property  or  any  materials  furnished  for  fgos; !«.  ^ '"°' 

5  the  emplopnent  of  prisoners  in  any  of  said  institutions,  may  be  pun-  jso^j  2«. 

6  ished  by  imprisonment  for  not  less  than  six  months  nor  more  than  two  mh',  ess! 

7  and  one  half  years. 

1913,  257,  §  464.  1919,  5.  1920,  2. 

1  Section  131.     ^\^loever  is  discovered  in  the  act  of  wilfully  injuring  a  Arrest  and 

2  fruit  or  forest  tree  or  of  committing  any  kind  of  malicious  mischief  on  outTa'r°rant 

3  Sunday  may  be  arrested  without  a  warrant  by  a  sheriff,  deputy  sheriff,  on  suTday?"' 


4  constable,  watchman,  police  officer  or  other  person,  and  detained  in  jail  \f.\' 


246. 
245. 


2726 


CRIMES  AGAINST   PROPERTY. 


[CH-VP.   266. 


G.  S.  161,  §  86. 
P.  S.  203.  §  104. 
R.  L.  20S, 
§  121. 


or  otherwise  until  a  complaint  can  be  made  against  him  for  the  offence,  5 
and  he  be  taken  upon  a  warrant  issued  upon  such  complaint;  but  such  6 
detention  without  warrant  shall  not  continue  beyond  the  following  day.     7 


Wghtfuing  Section  132.     Whoever  wilfully  kills  pigeons  upon,  or  frightens  them 

i84s?85  from,  beds  which  have  been  made  for  the  purpose  of  taking  them  in  nets, 

G*i' ill  « 87  ^y  ^^y  method,  within  one  hundred  rods  of  the  same,  except  on  land 
p.s.'203.'§  105.  lawfully  occupied  by  himself,  shall  be  punished  by  imprisonment  for  not 
§  122.     '         more  than  one  month  or  by  a  fine  of  not  more  than  twenty  dollars,  and 

shall  also  be  liable  for  the  actual  damages  to  the  owner  or  occupant  of 

such  beds. 


Injury,  etc. 
to  property 
of  Humane 
Society. 
1854,  358. 
G.  S.  161,  § 
P.  S.  203.  § 
1889,  399. 
R.  L.  208, 
§  123. 


Section  13.3.  Whoever  unlawfully  enters  a  house,  boat  house  or  hut  1 
which  is  the  property  of  the  Humane  Society  of  the  Commonwealth  of  2 
Massachusetts  and  wilfully  injures,  removes  or  carries  away  any  prop-  3 
erty  belonging  to  said  society,  or  wilfully  injures  or  unlawfully  uses  or  4 
commits  any  trespass  upon  the  property  of  said  society  which  is  intended  5 
or  kept  for  the  purpose  of  saving  or  preserving  human  life,  or  commits  6 
any  trespass  upon  such  house,  hut  or  boat  house,  shall  be  punished  by  7 
a  fine  of  not  more  than  two  hundred  dollars  or  by  imprisonment  for  not  8 
more  than  six  months;  but  the  penalties  of  this  section  shall  not  apply  9 
to  persons  for  whose  use  said  boats,  houses  and  other  property  are  intended  10 
and  kept.  Pilots,  sheriffs  and  their  deputies,  and  constables  shall  make  11 
complaint  against  all  persons  guilty  of  a  violation  of  this  section.  One  12 
half  of  any  fine  paid  hereunder  shall  be  paid  to  the  person  who  gives  13 
information  upon  which  a  conviction  is  obtained.  14 


Setting  fire  to 
coal  pit,  etc  , 
on  woodland  in 
New  Bedford, 
etc.,  between 
March  and 
October. 
1839,  148. 
G.  S.  161, 
§§  89-91. 
p.  S.  203, 
§§  107-109. 
R.  L.  208, 
§  124. 


Section  1.34.     Whoever,  between  April  first  and  October  first,  sets  1 

fire  to  a  coal  pit  or  pile  of  wood,  for  the  purpose  of  charring  the  same,  2 

on  any  woodland  in  the  cities  of  New  Bedford  or  Fall  River  or  in  the  3 

towns  of  Dartmouth,  Freetown,  Fairhaven,  Middleborough  or  Rochester,  4 

shall  forfeit  one  hundred  dollars.    Whoever,  between  the  times  aforesaid,  5 

sets  fire  to  any  brush  wood  or  bushes  on  any  part  of  such  woodland,  or  6 

on  land  adjoining  thereto,  so  as  to  cause  the  burning  of  such  brush  wood  7 

or  bushes,  shall  forfeit  fifty  dollars.     All  forfeitures  under  this  section  8 

shall  be  equally  divided  between  the  city  or  town  in  which  the  offence  9 

is  committed  and  the  person  who  sues  therefor.  10 


Mooring  vessel, 
etc.,  to  a  buoy, 

1860,  53, 
§§  1,2. 
P.  S.  203, 
§§  110,  111. 
R.  L.  208, 
§  12S. 


Section  135.     Whoever  moors  or  in  any  manner  makes  fast  a  vessel,  1 

scow,  boat  or  raft  to  a  buoy,  beacon  or  floating  guide  placed  by  the  govern-  2 

ment  of  the  United  States  in  the  na\'igable  waters  of  the  commonwealth  3 

shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars;  and  whoever  4 

wilfully  destroys,  injures  or  removes  any  such  beacon  or  guide  shall  be  5 

punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  6 

ment  for  not  more  than  three  months.    One  third  of  all  fines  which  accrue  7 

under  this  section  shall  be  paid  to  the  complainant  and  two  thirds  to  the  8 

county.  9 


Injury,  etc.,  to 
baggage  by 
hackman,  etc. 
1869,  307, 


Section  136.     Any  person  whose  duty  it  is  to  handle,  remo\-e  or 
take  care  of  the  baggage  of  passengers  who  wilfully  or  recklessly  destroys 
R  L ^208  ^  ^'^'  °'"  injures  a  trunk,  valise,  box,  package  or  parcel,  wliile  loading,  transport- 
§  126.     '         ing,  unloading,  delivering  or  storing  the  same,  shall  be  punished  by  a  fine 
of  not  more  than  fifty  dollars. 


Chap.  267.] 


FORGERY,   CRISIES   AG.\INST  THE   CrRRENCY. 


2727 


1  Section  137.     Whoever,  by  erecting  or  maintaining  a  dam,  either  Raising  water 

2  within  or  without  tlie  commonwealth,  knowingly  causes  the  water  of  a  mio^  omime 

3  river  or  stream  so  to  be  raised  as  to  flow  upon  or  injure  a  mill  lawfully  a*l.'i'li.  §  7i, 

4  existing  in  the  commonwealth  and  belonging  to  a  citizen  thereof,  without  ^;  l.~208,\*89. 

5  right  as  against  the  owner  of  such  mill,  shall  be  punished  by  a  fine  of 

6  not  more  than  one  thousand  dollars  or  by  imprisonment  for  not  more 

7  than  six  months ;  but  this  section  shall  not  apply  to  cases  in  which  the 

8  courts  of  the  commonwealth  have  jurisdiction  to  abate  a  dam  so  raised 

9  or  maintained. 


1  Section  138.     Whoever    wilfully,    intentionally    and    without    right 

2  breaks  down,  injures,  removes  or  destroys  a  dam,  reservoir,  canal  or 

3  trench,  or  a  gate,  flume,  flashboards  or  other  appurtenances  thereof,  or  a 

4  wheel,  or  mill  gear,  or  machinery  of  a  water  mill  or  steam  mill,  or  wil- 

5  fully  or  wantonly,  without  color  of  right,  draws  off  the  water  contained 

6  in  a  mill  pond,  reservoir,  canal  or  trench,  or  obstructs  such  water  from 

7  flowing  out  of  the  same,  shall  be  punished  by  imprisonment  in  the  state 

8  prison  for  not  more  than  five  years  or  by  a  fine  of  not  more  than  five  hun- 

9  dred  dollars  and  imprisonment  in  jail  for  not  more  than  two  years. 


Injury  to  dam, 

reservoir. 

etc. 

1727 

-8.3 

1S29 

98. 

E.  S. 

126, 

§40. 

1857 

160 

G.  S. 

161, 

§72. 

1875 

101 

P.  S. 

203, 

§85. 

1901 

268 

§4. 

R.  L 

208 

§90 

REFERENCE. 
Penalty  for  wantonly  destroying  a  tree,  etc.,  Chap.  87,  §§  10,  12. 


CHAPTER    267. 

FORGERY  AND  CRIME,S  AGAINST  THE  CURRENCY. 


Sect. 

1.  Forgery  of  records,  certificates,  etc. 

2.  Forgery  of  railroad  ticket,  etc. 

3.  Forgery  of  stamp  or  seal. 

4.  Forgery  of  railroad  stamp,  etc. 

5.  Uttering  forged  record  or  contract. 

6.  Uttering  forged  railroad  ticket,  etc. 

7.  Forging  note  of  treasurer  and  receiver 

general,  etc. 

8.  Forging  bank  bill  or  note. 

9.  Possession  of  ten  or  more  counterfeit 

bills,  with  intent,  etc. 

10.  Passing  counterfeit  bill  or  forged  note. 

11.  Second    con\dction,  and   three   convic- 

tions at  same  sitting. 

12.  Having  counterfeit  bill,  with  intent,  etc. 

13.  Making  or  having  tool,  etc.,  for  coun- 

terfeiting, with  intent,  etc. 

14.  Testimony  of  president,  etc.,  of  bank, 

dispensed  with  in  certain  cases. 

15.  Sworn    certificates    of    certain    officers 

made  evidence. 

16.  Affixing  fictitious  signature. 

17.  Counterfeiting    coin,    or    having    ten 

counterfeit  pieces,  etc. 
IS.  Having  less  than  ten  pieces,  with  intent, 
etc.    Uttering  counterfeit  coin. 


Sect. 

19.  Second   conviction,   and   three   convic- 

tions at  same  sitting. 

20.  Making,  mending  or  having   tool   for 

coining,  with  intent,  etc. 

21.  Issuing   or  passing   note   as   currency, 

etc.,  except,  etc. 

22.  Issuing  small  note,   etc.,   as  currency, 

except,  etc. 

23.  Circulation  of  fractional  bill. 

24.  Fraudulently  connecting  parts  of  hank 

notes,  etc. 

25.  Wilful   and  malicious   injury   to   bank 

bill. 

26.  Maliciously  gathering  up,  etc.,  bills  of 

bank  for  purpose   of  injuring   busi- 
ness, etc.     Penalty. 

27.  Possession  of  worthless  bills,  not  cur- 

rent, etc. 

28.  Uttering  or  passing  such  biU,  etc. 

29.  Engraving,  etc.,  shop  bill,  resembling 

bank  bills. 

30.  Sheriff,  etc.,  to  seize  counterfeit  bills, 

etc. 

31.  Compensation  to  prosecutors,  etc.,  of 

forgers,  etc. 


2728 


FORGERY,   CRIMES  AGAINST  THE   CURRENCY.  [CH-U>.   267. 


Forgery  of 
records,  certifi- 
cates, etc. 
C.  L.  54,  §  3. 
1692-3,  18,  §  8. 
1784,  67. 
1786,  21.  §  3. 

1804,  120.  §  1. 

1805,  SS,  §  1. 
R.  S.  127,  §  1. 
G.  S.  162,  §  1. 
1874,  78. 

P.  S.  204,  §  1. 
189S,  562, 
§  113. 

1901.371.  §  1. 
R.  L.  209.  §  1. 
1909,  155.  I  1. 

2  Mass.  397. 
15  Mass.  526. 
17  Mass.  46. 

3  Gush.  150. 
3  Gray.  441. 
2  Allen,  161, 
165. 

101  Mass.  32. 

209. 

114  Mass.  278, 

311. 

118  Mass.  439. 

120  Mass.  358. 

124  Mass.  327. 

129  Mass.  124. 


Section  1.  "V'VTioever,  vnth  intent  to  injure  or  defraud,  falsely  makes,  1 
alters,  forges  or  counterfeits  a  public  record,  or  a  certificate,  return  or  2 
attestation  of  a  clerk  or  register  of  a  court,  public  register,  notary  public,  3 
justice  of  the  peace,  special  commissioner,  town  clerk  or  any  other  public  4 
officer,  in  relation  to  a  matter  wherein  such  certificate,  return  or  attesta-  5 
tion  may  be  received  as  legal  proof;  or  a  charter,  deed,  will,  testament,  6 
bond  or  ■WTiting  obligatory,  power  of  attorney,  policy  of  insurance,  bill  7 
of  lading,  bill  of  exchange  or  promissory  note;  or  an  order,  acquittance  8 
or  discharge  for  monej^  or  other  property;  or  an  acceptance  of  a  bill  of  9 
exchange,  or  an  endorsement  or  assignment  of  a  bill  of  exchange  or  prom-  10 
issory  note  for  the  payment  of  money;  or  an  accountable  receipt  for  11 
money,  goods  or  other  property;  or  a  stock  certificate,  or  any  exidence  12 
or  muniment  of  title  to  property;  or  a  certificate  of  title,  duplicate  cer-  13 
tificate  of  title,  certificate  issued  in  place  of  a  duplicate  certificate,  the  14 
registration  book,  entry  book,  or  any  indexes  provided  for  by  chapter  one  1.5 
hundred  and  eighty-five,  or  the  docket  of  the  recorder;  shall  be  pun-  16 
ished  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years  17 
or  in  jail  for  not  more  than  two  years.  18 


137  Mass.  109. 
145  Mass.  392. 


148  Mass.  296. 
157  Mass.  386. 


218  Mass.  501. 
231  Mass.  449. 


Forgerj'  of 
railroad  ticket, 
etc. 

1901,371.  §  1. 
R.  L.  209,  §  1. 
1909,  155,  §  1. 


Section  2.    'Whoever,  Mith  intent  to  injure  or  defraud,  falsely  makes,  1 

alters,  forges  or  counterfeits  a  railroad  ticket,  railroad  mileage  book  or  2 

railroad  pass,  or  a  ticket,  badge,  pass  or  any  ■wTitten  or  printed  license  3 

purporting  to  entitle  the  holder  or  owner  thereof  to  admission  to  any  4 

exhibition,  entertainment,  performance,  match  or  contest  of  any  kind,  5 

shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  6 

three  years  or  in  jail  for  not  more  than  two  years,  or  by  a  fine  of  not  more  7 

than  five  hundred  dollars.  8 


Forgery  of 
stamp  or  seal. 
1898,  562, 
§  114. 

R.  L.  209,  §  2. 
1904,  448,  §  1. 


Section  3.    Whoever  forges,  procures  to  be  forged  or  assists  in  forg-  1 

ing,  the  seal  of  the  land  court,  or,  without  lawful  authority,  stamps  or  2 

procures  to  be  stamped,  or  assists  in  stamping,  any  document  with  such  3 

forged  seal  or  with  the  genuine  seal  of  said  court,  shall  be  punished  by  4 

imprisonment  in  the  state  prison  for  not  more  than  ten  years  or  in  jail  for  5 

not  more  than  two  years.  6 


Forgery  of 
railroad  stamp, 

1901,371,  §  3. 
R.  L.  209.  §  2. 


Section  4.     '\^^loever  forges,  procures  to  be  forged  or  assists  in  forg-  1 

ing,  the  stamp  of  any  railroad  company  or  of  any  railroad  ticket  agent,  2 

or,  ■^'ithout  lawful  authority,  stamps  or  procures  to  be  stamped,  or  assists  3 

in  stamping,  any  railroad  ticket  or  railroad  mileage  book  mth  such  forged  4 

stamp,  or  with  a  genuine  stamp  of  any  railroad  company  or  railroad  ticket  5 

agent,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  6 

than  three  years  or  in  jail  for  not  more  than  two  years,  or  by  a  fine  of  not  7 

more  than  fi\-e  hundred  dollars.  8 


Uttering 
forged  record 
or  contract. 
1692-3,  18,  §  8. 
1784,  67. 
1785,21.  §3. 

1804,  120,  §  1. 

1805,  88,  I  1. 
R.  S.  127,  5  2. 
G.  S.  162,  I  2. 
P.  S.  204,  §  2. 


Section  5.  Whoever,  with  intent  to  injure  or  defraud,  utters  and 
publishes  as  true  a  false,  forged  or  altered  record,  deed,  instrument  or 
other  writing  mentioned  in  the  four  preceding  sections,  knowing  the 
same  to  be  false,  forged  or  altered,  shall  be  punished  by  imprisonment  in 
the  state  prison  for  not  more  than  ten  years  or  in  jail  for  not  more  than 
two  years.  woi,  37i,  §  2. 


R.  L.  209,  §  3. 
1909,  155,  §  2. 


2  Gray,  70. 
9  Gray,  123. 


10  Gray,  477.  483. 

11  Gray,  305. 


2  Allen.  165. 
188  Mass.  91. 


I 


Chap.  267.]  forgery,  crimes  ag.\inst  the  currency.  2729 

1  Section  6.    Whoever,  with  intent  to  injure  or  defraud,  utters  and  foTRed'fai]- 

2  publishes  as  true  a  false,  forged  or  altered  railroad  ticket,  railroad  mileage  road  ticket, 

3  book  or  railroad  pass,  or  a  ticket,  badge,  pass  or  any  written  or  printed  isdi,  371,  §  2. 

4  license  purporting  to  entitle  the  holder  or  owner  thereof  to  admission  1909;  iss!  §  2. 

5  to  any  exhibition,  entertainment,  performance,  match  or  contest  of  any 
C  kind  mentioned  in  section  two,  knowing  the  same  to  be  false,  altered  or 

7  forged,  shall  be  puiiished  by  imprisonment  in  the  state  prison  for  not 

8  more  than  three  years  or  in  jail  for  not  more  than  two  years,  or  by  a  fine  of 

9  not  more  than  five  hundred  dollars. 

1  Section  7.    Whoever,  with  intent  to  injure  or  defraud,  falsely  makes,  Forging  note 

2  alters,  forges  or  counterfeits  a  note,  certificate  or  other  bill  of  credit  and  receiver 

3  issued  by  the  state  treasurer,  or  by  any  commissioner  or  other  officer  f8o"'i2a  §  2. 

4  authorized  to  issue  the  same  for  a  debt  of  this  commonwealth,  shall  be  §;  |;  \ll[  |  3; 

5  punished  by  imprisonment  in  the  state  prison  for  life  or  for  any  term  of  r.  i,.^209,\^4. 

6  years. 

1  Section  8.    Whoever,  ■with  intent  to  injure  or  defraud,  falsely  makes,  Forging  bank 

2  alters,  forges  or  counterfeits  a  bank  bill  or  promissory  note  payable  to  i7si°  m°  "' 

3  the  bearer  thereof  or  to  the  order  of  any  person,  issued  by  any  incor-  \lll\  ii!  1 1 

4  porated  banking  company,  shall  be  punished  by  imprisonment  in  the  R^s.'ii?;!! 

5  state  prison  for  life  or  for  any  term  of  years.  g.  s.  162,  §  4. 

p.  S.  204,  §4.  E.  L.  209,  §5.  1  Mass.  62,  203.  11  Gray,  306. 

1  Section  9.    Whoever  has  in  his  possession  at  the  same  time  ten  or  Possession  of 

2  more  similar  false,  altered,  forged  or  counterfeit  notes,  bills  of  credit,  counTeHeT 

3  bank  bills  or  notes,  such  as  are  mentioned  in  any  of  the  preceding  sec-  hueAtTeti. 

4  tions,  payable  to  the  bearer  thereof  or  to  the  order  of  any  person,  know-  ^°^'  J|^;  1 1 

5  ing  the  same  to  be  false,  altered,  forged  or  counterfeit,  with  intent  to  utter  p- 1- 1«|'  |  s- 

6  or  pass  the  same  as  true,  and  thereby  to  injure  or  defraud,  shall  be  pun-  ^^l^j;°^^|  ''• 

7  ished  by  imprisonment  in  the  state  prison  for  life  or  for  any  term  of  iss. 

8  years. 

8  Mass.  59, 107.  4  Pick.  232.  19  Pick.  124.  97  Mass.  570. 

1  Section  10.     Whoever  utters  or  passes  or  tenders  in  payment  as  true  Passing 

2  any  such  false,  altered,  forged  or  counterfeit  note,  certificate  or  bill  of  b™ "r^forged 

3  credit  for  any  debt  of  the  commonwealth,  or  a  bank  bill  or  promissory  no4-5,  s.  §  i. 

4  note  payable  to  the  bearer  thereof  or  to  the  order  of  any  person,  issued  Hf^l]  H] 

5  as  aforesaid,  kno-wing  the  same  to  be  false,  altered,  forged  or  counterfeit,  JJ^^g;  %^^  ^■ 

6  with  intent  to  injure  or  defraud,  shall  be  punished  by  imprisonment  in  the  flyi^l' ^^' ^^ 

7  state  prison  for  not  more  than  five  years,  or  by  a  fine  of  not  more  than  i"8-9;  25', 

8  one  thousand  dollars  and  imprisonment  in  jail  for  not  more  than  one  irei,  34. 

9  year.  i783,  ss,  §  3.  i785, 21,  §  5. 

1804,  120,  §  3.  p.  S.  204,  §  6.  11  Gray,  306. 

R.  S.  127,  §  6.  R.  L.  209,  §  7.  2  Allen,  165. 

G.  S.  162,  I  6.  11  Mass.  136.  4  Allen.  305. 

1  Section  11.     Whoever,  having  been  convicted  of  the  crime  mentioned  vkSod,  a°nd 

2  in  the  preceding  section,  is  again  couA-icted  of  the  like  crime  committed  *'?'jfo™°; 

3  after  the  former  conviction,  and  whoever  is  at  the  same  sitting  of  the  same  sitting. 

4  court  convicted  upon  three  distinct  charges  of  such  crime,  shall  be  ad-  iso4;  120,  §  3. 

5  judged  a  common  utterer  of  counterfeit  bills,  and  be  punished  by  imprison-  a.  s.  102;  1 7'. 

6  ment  in  the  state  prison  for  not  more  than  ten  years. 

p.  S.  204,  §  7.  R.  L.  209,  §  S. 


2730 


FORGERY,    CRIMES   AGAINST  THE    CURRENCY.  [ChAP.   267. 


Ha^'ing 
counterfeit 
bill,  with 
intent,  etc. 
1804,  120,  §  4. 
1833,  222.  §  1. 
R.  S.  127,  I  8. 
1S36,  4. 
§§  15.  16. 
G.  S.  162.  §  8. 
P.  S.  204.  §  8. 
R.  L.  209,  §  9. 

2  Mass.  132, 
138. 

7  Pick.  137. 

3  Met.  460. 

8  Met.  235. 


Section  12.     Whoever  brinjjs  into  this  commonwealth  or  has  in  his  1 

possession  a  false,  forged  or  counterfeit  bill  or  note,  in  the  similitude  of  2 

the  bills  or  notes,  payable  to  the  bearer  thereof  or  to  the  order  of  any  3 

person,  issued  by  or  for  any  bank  or  banking  company,  with  intent  to  utter  4 

or  pass  the  same  or  to  render  the  same  current  as  true,  knowing  the  same  5 

to  be  false,  forged  or  counterfeit,  shall  be  punished  by  imprisonment  in  6 

the  state  prison  for  not  more  than  five  years,  or  bj-'  a  fine  of  not  more  7 

than  one  thousand  dollars  and  imprisonment  in  jail  for  not  more  than  8 

one  Vear.  lO  Gray,  472.  10  Alien,  184.  9 


1. 


Making  or 
having  tool, 
etc.,  for 
counterfeit- 
ing, with 
intent,  etc. 
1704-5,  8,  § 
1720-1,  10. 
1735-6,  18. 
1775-6,  18.  §  1. 
1776-7,  44,  §  1. 
1783,  S3.  §  4. 
1804,  120,  §  5. 
1833,  222,  §  2. 
R.  S.  127,  §  9. 
G.  S.  162,  §  9, 
P.  S.  204.  I  9. 
P.  L.  209.  §  10. 
2  Mass.  128. 


Section  13.     Whoever  engraves,  makes  or  mends,  or  begins  to  engrave,  1 

make  or  mend,  a  plate,  block,  press  or  other  tool,  instrument  or  imple-  2 

ment,  or  makes  or  pro\ades  paper  or  other  material  adapted  to  and  3 

designed  for  the  forging  or  making  of  a  false  and  counterfeit  note,  certifi-  4 

cate  or  other  bill  of  credit,  purporting  to  be  issued  by  lawful  authority  5 

for  a  debt  of  the  commonwealth,  or  a  false  and  counterfeit  note  or  bill  6 

in  the  similitude  of  the  notes  or  bills  issued  by  any  bank  or  banking  com-  7 

pany,  and  whocNer  has  in  his  possession  such  a  plate  or  block  engraved  S 

in  any  part,  or  a  press  or  other  tool,  instrmnent  or  implement,  or  paper  or  9 

other  material,  adapted  and  designed  as  aforesaid,  with  intent  to  use  the  10 

same  or  to  cause  or  permit  the  same  to  be  used  in  forging  or  making  11 

such  false  and  counterfeit  certificates,  bills  or  notes,  shall  be  punished  12 

by  imprisonment  in  the  state  prison  for  not  more  than  ten  years,  or  by  13 

a  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in  jail  14 

for  not  more  than  two  vears.  15 


Testimony  of 
president,  etc., 
of  bank,  dis- 
pensed with 
in  certain  cases. 
1818,  110. 
1833,  222,  §  3. 
R.  S.  127,  §  10. 
G.  S.  162,  §  10. 
P.  S.  204.  §  10, 
R.  L.  209,  §  11. 
2  Pick.  47. 
5  Gush,  605. 


Section  14.  In  prosecutions  for  forging  or  counterfeiting  notes  or  1 
bills  of  the  banks  before  mentioned,  or  for  uttering,  publishing  or  tender-  2 
ing  in  pajTnent  as  true  forged  or  counterfeit  bank  bills  or  notes,  or  for  3 
being  possessed  thereof  with  intent  to  utter  and  pass  the  same  as  true,  4 
the  testimony  of  the  president  and  cashier  of  any  such  bank  may  be  5 
dispensed  with,  if  their  place  of  residence  is  out  of  the  commonwealth  & 
or  more  than  forty  miles  from  the  place  of  trial;  and  the  testimony  of  7 
any  person  acquainted  with  the  signature  of  such  president  or  cashier,  8 
or  who  has  knowledge  of  the  difference  in  the  appearance  of  the  true  and  9 
the  counterfeit  bills  or  notes  of  such  banks,  may  be  admitted  to  prove  10 
tliat  such  bills  or  notes  are  counterfeit.  11 


Section  15.     In  prosecutions  for  forging  or  counterfeiting  a  note, 


Sworn  certifi- 
cates of  cer- 

madefvidence.  Certificate,  bill  of  credit  or  other  security  issued  on  behalf  of  the  United 
iZsl'm.  §11.  States,  or  on  behalf  of  any  state  or  territory,  or  for  uttering,  publishing 
G- s.^162.  §  11.  or  tendering  in  pajmient  as  true  such  forged  or  counterfeit  note,  certifi- 
r'.  l.  209,  §  12.  cate,  bill  of  credit  or  security,  or  for  being  possessed  thereof  with  intent 
to  utter  or  pass  the  same  as  true,  the  certificate  under  oath  of  the  secre- 
tary of  the  treasm-y,  or  of  the  treasurer  of  the  United  States,  or  of  the 
secretary  or  treasurer  of  any  state  or  territory,  on  whose  behalf  such 
note,  certificate,  bill  of  credit  or  security  purports  to  have  been  issue*!, 
shall  be  admitted  as  evidence  for  the  purpose  of  proving  the  same  to  be  10 
forged  or  counterfeit.  11 


Section  16.     If  a  fictitious  or  pretended  signature,  purporting  to  be     1 


Affixing 
fictitious 

R^s!*]'27,  §  13  the  signature  of  an  officer  or  agent  of  a  corporation,  is  fraudulently     2 
G.  s.  162,  §  12.  affixed  to  an  instrument  or  writing  purporting  to  be  a  note,  draft  or     3 


Ch.\P.    267.]  FOKGEKY,    CRIMES   AGAINST  THE   CUKEENCY.  2731 

4  other  evidence  of  debt  issued  by  such  corporation,  with  intent  to  pass  p.  s.  204,  §  12 

5  the  same  as  true,  it  shall  be  a  forgery,  although  no  such  person  may  ever  2  Mass.  77. 

6  have  been  an  officer  or  agent  of  such  corporation,  or  ever  have  existed. 

1  Section  17.     Wtoever  counterfeits  any  gold  or  silver  coin  current  by  Counterfeiting 

2  law  or  usage  within  the  commonwealth,  or  has  in  his  possession  at  the  ten  counter- 

3  same  time  ten  or  more  pieces  of  false  money,  or  coin  counterfeited  in  i"702-'3,''2!' 

4  the  similitude  of  any  gold  or  silver  coin  current  as  aforesaid,  knowing  |74g_|o, 

5  the  same  to  be  false  and  counterfeit,  and  with  intent  to  utter  or  pass  the  j^gl^'go. 

6  same  as  true,  shall  be  punished  by  imprisonment  in  the  state  prison  for  ^oi.  120,  |fi.^ 

7  life  or  for  any  term  of  years. 

G.  S.  162,  §  14.  R.  L.  209.  §  14.  8  Met.  313.  13  Met.  514. 

P.  S.  204,  §  14.  21  Pick.  523.  10  Met.  256.  1  Gray,  564. 

1  Section  18.     WTioever  has  in  his  possession  less  than  ten  pieces  of  J^tn tmi'p'iecea, 

2  the  counterfeit  coin  mentioned  in  the  preceding  section,  knowing  the  ^^'^  utSng 

3  same  to  be  counterfeit,  with  intent  to  utter  or  pass  the  same  as  true,  counterfeit 

4  or  utters,  passes  or  tenders  in  payment  as  true  any  such  counterfeit  1804. 120, 5  7. 

5  coin,  knowing  the  same  to  be  false  and  counterfeit,  shall  be  punished  by  g'.  s.  w2,  §  is! 

6  imprisonment  in  the  state  prison  for  not  more  than  ten  years  or  by  a  r.  l.^2°o1). \ W 

7  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in  jail  ^J  Met.' III.' 

8  for  not  more  than  two  years.  is  Met.  514.  1  Gray,  564. 

1  Section  19.     Whoever,  having  been  convicted  of  any  of  the  crimes  second  convic- 

2  mentioned  in  the  preceding  section,  is  again  convicted  of  the  same  crimes  co°nvictions  at 

3  committed  after  the  former  conviction,  and  whoever  is  at  the  same  ilo4',*i2o."f'7. 

4  sitting  of  the  court  convicted  upon  tliree  distinct  charges  of  said  crimes,  g;  |  [jj^^  |  H 

5  shall  be  adjudged  a  common  utterer  of  counterfeit  coin,  and  punished  by  ^  l.^209.\^i6. 

6  imprisonment  in  the  state  prison  for  not  more  than  twenty  years.  "'  Met.  5U. 

1  Section  20.     Whoever  casts,  stamps,  engraves,  makes  or  mends,  or  Making,  mend- 

2  knowingly  has  in  his  possession  a  mould,  pattern,  die,  puncheon,  engine,  tool  for  coin- 

3  press  or  other  tool  or  instrument,  adapted  to  and  designed  for  coining  or  lenl'^e'ti^. '"" 

4  making  counterfeit  coin,  in  the  similitude  of  any  gold  or  silver  coin  current  ^°^[  Jl?;  |  \g 

5  by  law  or  usage  in  the  commonwealth,  with  intent  to  use  or  employ  the  pIzM^u?^' 

6  same  or  to  cause  or  permit  the  same  to  be  used  or  employed  in  coining  or  f  jJ^^^^Pvi^  ^^■ 

7  making  any  such  false  and  counterfeit  coin  as  aforesaid,  shall  be  punished 

8  by  imprisonment  in  the  state  prison  for  not  more  than  ten  years  or  by 

9  a  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in  jail 
10  for  not  more  than  two  years. 

1  Section  21.     'Whoever  issues  or  passes  a  note,  bill,  order  or  check,  issuing  or 

2  other  than  foreign  bills  of  exchange,  the  notes  or  bills  of  a  bank  incor-  as  currency. 

3  porated  by  the  laws  of  this  commonwealth,  of  the  United  States,  of  some  etc"^"*'''' 


4  one  of  the  United  States  or  of  anv  of  the  British  provinces  of  North  R^|'|tfj7o. 

------  G.  S.  162,  §  IS 

P.  S.  204,  §  IS. 


5  America,  with  the  intent  that  the  same  shall  be  cu-culated  as  currency,  p.l.'aa"'-^  '^ 


I 


6  shall  be  punished  by  a  fine  of  fifty  dollars.  R.  l.  209,  §  is. 

1  Section  22.     ^\Tioever  issues  or  passes  a  note,  bill,  order  or  check,  issuing  small 

2  other  than  the  notes  or  bills  of  a  bank  incorporated  under  the  authority  currency.' 

3  of  this  commonwealth,  of  the  United  States  or  of  some  one  of  the  United  isw'^ss';'''' 

4  States,  for  an  amount  less  than  five  dollars,  or  whereon  a  less  amount  lli;^{, 

5  than  five  dollars  is  due  at  the  time  of  such  issuing  or  passing  thereof,_with  g-  f;  \li,^^-^c,^ 
G  intent  that  the  same  shall  be  circulated  as  currency,  shall  be  punished  p  s-  204,'§  lu. 

7  by  a  fine  of  fifty  dollars.  R-  L-  209,  j  19. 


2732 


FORGERY,   CRIMES   AGAINST  THE   CURRENCY.  [ChAP.    267. 


&ct'Jona?buf.  Section  23.  \\Tioever  receives  or  puts  in  circulation  as  currency  a 
cf^s'iel'llo  ^^^^  note  or  bill  which  is,  or  a  part  of  which  is,  for  any  fractional  part 
p.  s.  204, 1 20.   of  a  dollar  shall  be  punished  by  a  fine  of  twenty-five  dollars. 

R.  L.  209,  §  20. 


rjnneclmg"''  Section  24.  '\\Tioever  fraudulently  connects  different  parts  of  sev- 
Ea^  notes  ^^^^  bank  notes  or  other  genuine  instruments  in  such  manner  as  to 
R°s  127  5 12  produce  one  additional  note  or  instrument,  with  intent  to  pass  all  of 
g!  s.  162;  §  2r  them  as  genuine,  shall  be  guilty  of  forgery,  in  like  manner  as  if  each  of 
R.  L.  2a9,"§  2i.  them  had  been  falsely  made  or  forged.  lo  Mass.  34. 


m^idous^  Section  25.     ^^^loever  wilfully  and  maliciously  tears,  cuts  or  in  any 

mjurytobank  manner  damages  and  impairs  the  usefulness  for  circulation  of  a  bank 

1852.64  bill  or  note  of  a  bank  in  this  commonwealth  shall  be  punished  by  a  fine 

p.'s'204,'§  22.'  of  not  more  than  ten  dollars;  but  the  possession  or  uttering  of  a  bill  so 

■    ■      '     "■  injured  shall  not  be  evidence  against  a  party  charged,  unless  connected 

with  other  circumstances  tending  to  prove  that  the  bill  or  note  was 

injured  by  him. 


Malicioiisly 
gathering  up, 
etc..  bills  of 
bank  for 
purpose  of 
injuring  busi- 
ness, etc. 
Penalty. 
1859.  116, 
5§3.4. 
G.  S.  162, 
P.  S.  204 


§23. 
23. 


R.  L.  209,  i  23. 


Section  26.    \Mioever  maliciously  gathers  up  or  retains  or  maliciously  1 

aids  in  gathering  up  or  retaining  bills  or  notes  of  a  bank  or  banking  com-  2 

pany,  current  by  law  or  usage  in  the  commonwealth,  for  the  purpose  of  3 

injuring  or  impeding  the  circulation  or  business  of  such  bank  or  banking  4 

company,  or  of  compelling  it  to  do  any  act  out  of  the  usual  course  of  its  5 

business,  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dol-  6 

lars  or  by  imprisonment  for  not  more  than  two  years;  and  in  the  prose-  7 

cution  of  any  such  crime  it  shall  not  be  necessary  to  set  out  and  describe  8 

each  bill,  but  it  shall  be  sufficient  to  aver  and  prove  any  amount  of  the  9 

bills  of  any  bank  which  have  been  so  gathered  up  or  retained.  10 


Possession  of 
worthless  bills, 
not  current, 

1857,  231,  I  1. 
G.  S.  162.  §  24. 
P.  S.  204.  5  24. 
R.  L.  209,  §  24. 
1914,  635. 

1918,  257, 
§464. 

1919,  5. 

1920,  2. 


Section  27.  WTioever  has  in  his  possession  at  the  same  time  five  or  1 
more  bank  bills  or  notes  not  current  which  are  worthless  as  bank  bills  or  2 
notes,  knowing  the  same  to  be  worthless  as  aforesaid,  or  has  papers  not  3 
bank  bills  or  notes,  but  made  in  the  similitude  thereof,  or  papers  pur-  4 
porting  to  be  the  bills  or  notes  of  a  bank  which  has  never  existed,  knowing  5 
the  character  of  such  papers,  with  intent  to  pass,  utter  or  circulate  the  6 
same,  or  to  procure  any  other  person  so  to  do,  for  the  purpose  of  injuring  7 
or  defrauding,  shall  be  punished  by  imprisonment  in  the  state  prison  for  8 
not  more  than  five  years,  or  by  a  fine  of  not  more  than  five  hundred  9 
dollars  and  imprisonment  in  the  house  of  correction  for  not  more  than  two  10 
and  one  half  years.  11 


uttering  or 

gassing  such 
ill,  etc. 
1857,  231,  §  2. 
G.  S.  162.  §  25. 
P.  S.  204.  §  25 
R.  L.  209,  §  25. 
1914,  635. 

1918,  257, 
§464. 

1919,  5. 

1920,  2. 

7  Allen,  537. 


Section  28.     ^^^loe^•e^  utters  or  passes  or  tenders  in  pajTnent  as  true  1 

any  such  worthless  bank  bill  or  note  not  current,  or  any  paper  not  a  2 

bank  bill  or  note  but  made  in  the  similitude  thereof,  or  any  paper  pur-  3 

porting  to  be  the  bill  or  note  of  a  bank  which  has  never  existed,  knowing  4 

the  same  to  be  worthless  and  not  current,  as  aforesaid,  with  intent  to  5 

injure  and  defraud,  shall  be  punished  by  imprisonment  in  the  state  6 

prison  for  not  more  than  five  years,  or  by  a  fine  of  not  more  than  five  7 

hundred  dollars  and  imprisonment  in  the  house  of  correction  for  not  8 

more  than  two  and  one  half  years.  9 


Engra^nng, 
etc.,  shop  bil], 
resembling 
bank  bills. 


Section  29.    ^^Tioever  engraves,  prints,  issues,  utters  or  circulates  a     1 
shop  bill  or  advertisement,  in  similitude,  form  and  appearance  like  a  bank    2 


Chap.  268.] 


CRIMES  AGAINST   PUBLIC  JUSTICE. 


2733 


3  bill,  on  paper  similar  to  paper  used  for  bank  bills,  and  with  vignettes,  is49.  s. 

4  figures  or  decorations  used  on  bank  bills,  or  having  the  general  appear-  isel',  gsT' 

5  ance  of  a  bank  bill,  or  in  similitude,  form  and  appearance,  like  a  treas-  R.L.Iog.lle. 

6  ury  note,  note,  certificate,  bill  of  credit  or  other  security  issued  by  or 

7  on  behalf  of  the  United  States,  on  paper  similar  to  paper  used  for  the 

8  same,  respectively,  and  with  vignettes,  figiu-es  or  decorations  used  thereon, 

9  or  having  the  general  appearance  of  a  treasury  note,  note,  certificate, 

10  bill  of  credit  or  other  security  issued  by  or  on  behalf  of  tlie  United  States, 

11  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  by  impris- 

12  onment  in  jail  for  not  more  than  three  montlis. 

1  Section  30.     When  false,  forged  or  coimterfeit  bank  bills  or  notes,  sheriff,  etc., 

2  or  forged  or  counterfeit  notes  or  bonds  of  any  state  or  corporation,  or  counterfeit 

3  plates,  dies  or  other  tools,  instruments  or  implements  used  by  counter-  isss.'ibs,  §  i. 

4  feiters,  or  designed  for  the  forging  or  making  of  false  or  counterfeit  notes,  ^^^-  ^^|'  |  .^^ 

5  coin  or  bills,  or  worthless  bank  bills  or  notes  not  current  described  in  i^g^'^^j    ^v 

6  sections  twenty-seven  and  twenty-eight,  come  to  the  knowledge  of  a  R.  l.  209,  §  27. 

7  sheriff,  constable,  police  officer  or  other  officer  of  justice,  he  shall  im- 

8  mediately  seize  and  take  possession  of  and  deliver  them  into  the  custody 

9  of  the  superior  court,  which  shall  cause  them  to  be  destroyed  by  an 

10  officer  of  the  court,  who  shall  make  return  to  the  court  of  his  doings  in 

11  the  premises. 


1      Section  31. 


Upon  a  conviction  of  any  crime  mentioned  in  sections  compensation 

2  seven,  eight,  seventeen,  eighteen,  twenty  or  twenty-eight  or  upon  for-  llJ^^lt"""^"^^' 

3  feiture  by  persons  prosecuted  for  any  such  crime  of  any  recognizance  for  ^iji^l^^^'^' 

4  their  appearance  to  answer  to  the  same,  the  superior  court  may  order  }7i|_jg  jg 

5  compensation  to  the  prosecutor  and  to  the  officer  who  has  secured  and  'J-'^-so. 

6  kept  the  e\'idence  of  the  crime,  not  exceeding  their  actual  expenses,  with  iso4, 120,  §  e. 

7  a  reasonable  allowance  for  their  time  and  trouble,  which  shall  be  paid  by  r.  s.'  127,  §  19. 


8  the  county. 

G.  S.  162 


i2S. 


1S45,  153;  248. 
1860,  191,  §  10. 


184C,  142. 

R.  L.  209,  §  28. 


CHAPTER    268. 

CRIMES  AGAINST  PUBLIC  JUSTICE. 


Sect. 

1.  Perjury. 

2.  Subornation  of  perjury. 

3.  Inciting  to  perjury. 

4.  Commitment  on  presumption   of  per- 

jury. 

5.  Papers,  etc.,  may  be  detained. 

6.  Penalties  for  making  false  report,  etc., 

to  department  of  public  utilities,  etc. 

7.  Bribe  to  officer. 

8.  Acceptance  of  bribe  by  officer. 
Taking  bonus,  etc.,  by  public  officer. 
Taking  bonus,  etc.,  by  member  of  legis- 
lature, city  council,  etc. 

Taking  bonus  by  county  officer. 
Bribery  of  officer  of  public  institution. 


9. 
10. 


11. 
12. 


Sect. 

13.  Corrupting  juror,  arbitrator,  etc. 

14.  Acceptance    of   bribe    by   juror,    arbi- 

trator, etc. 

15.  Aiding  escape  from  prison,  and  rescu- 

ing prisoner. 

16.  Penalty  for  escapes  or  attempted  es- 

capes from  penal  institutions. 

17.  Aiding  escape  from  an  officer. 

18.  Officer  suffering  escape. 

19.  Suffering  or  consenting  to  escape  from 

state  prison. 

20.  Negligently  suffering  escape,  or  refus- 

ing to  receive  prisoner. 

21.  Leaving  pri-soner  at  large. 

22.  Delay  of  service  of  warrant. 


2734 


CRIMES  AGAINST   PUBLIC   JUSTICE. 


[Ch.\p.  268. 


Se 
23 
24 
25, 


:CT. 


28. 


29. 
30. 


.  Refusal  to  arrest,  and  suffering  escape. 
:.  Refusal  to  aid  officer. 

Refusal  to  arrest  upon  order  of  a  justice 
of  the  peace. 

Furnishing  liquor  to  prisoner. 

Penalty  for  furnishing  intoxicating 
liquors  to  patients  of  public  institu- 
tions. 

Penalty  for  giving  articles  to  prisoners 
without  permission. 

Same  subject. 

Penalty  for  disturbing  penal  institu- 
tions. 


Sect. 

31.  Illicit  conveyance  of  articles  to  or  from 

prisons. 

32.  Interference  with  police  signal  systems. 

33.  Falsely  assuming  to  be  a  justice  of  the 

peace,  etc. 

34.  Disguising  to  resist  execution  of  the  law. 

35.  Unauthorized   use   of   seal   of   city   or 

town,  or  of  badge  of  officer. 

36.  Concealing  and  compounding  felony. 

37.  Officer  taking  bribe  for  neglecting  his 

duty. 

38.  Extortion  of  illegal  fees. 


Perjury. 

B.  L.  94,  §  11. 

C.  L.  IS,  §  11. 
1692-3,  18.  §  9. 
1784,  51,  §  1. 
1797,  35,  §  10. 
1812,  144,  §  1. 
1824,  91,  §  2. 
1829.  56. 

R.  S.  94,  §  12; 
128,  §§  1,  2. 
G.  S.  163, 
§§  1,  2. 
P.  S.  205, 
§§  1.  2. 
1892,  123. 
1898,  562, 
§112. 

R.  L.  210,  §  1. 
1912,719,  §  9. 
1914,  B.fS. 

1917,  16.5,  §  2. 

1918,  257, 
§  464. 


Subornation 
of  perjury. 
1692-3, 
18,  §  9. 


Section  1.  Whoever,  being  lawfully  required  to  depose  the  truth  1 
in  a  judicial  proceeding  or  in  a  proceeding  in  a  course  of  justice,  wilfully  2 
swears  or  aiSrins  falsely  in  a  matter  material  to  the  issue  or  point  in  3 
question,  or  whoever,  being  required  by  law  to  take  an  oath  or  affirma-  4 
tion,  wilfully  swears  or  affirms  falsely  in  a  matter  relative  to  which  such  5 
oath  or  affirmation  is  required,  shall  be  guilty  of  perjiu-y.  Whoever  6 
commits  perjury  on  the  trial  of  an  indictment  for  a  capital  crime  shall  7 
be  punished  by  imprisonment  in  the  state  prison  for  life  or  for  any  term  8 
of  years,  and  whoever  commits  perjury  in  any  other  case  shall  be  punished  9 
by  imprisonment  in  the  state  prison  for  not  more  than  twenty  years  or  10 
by  a  fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  in  11 
jail  for  not  more  than  two  and  one  half  years,  or  by  both  such  fine  and  12 
imprisonment  in  jail.  1919,5.  1920,2.  13 


12  Mass.  273. 
15  Gray,  43S. 


5  Allen.  499. 
108  Mass.  473. 


116  Mass.  17. 
129  Mass.  lis. 


150  Mass.  160. 
166  Mass.  174. 


— ^.-„..  _.     Whoever  is  guilty  of  subornation  of  perjury,  by  procuring 
another  person  to  commit  perjury,  shall  be  punished  as  for  perjury. 

""    ''  R.  S.  128,  I  3.  P.  S.  205,  §3.  11  Allen,  243. 


Section  2 


1784,  51,  §  2. 
1812,  144,  §  2. 


R.  S.  128,  i 
G.  S.  163, 


jr.  o.  ^yjo,  so.  XL  Alien,  ^to. 

R.  L.  210,  §  2.  152  Mass.  498. 


Inciting  to 
perjury. 
1784,  51.  §  3. 
1812,  144,  §  3. 
R.  S.  128,  §  4. 
G.  S.  163,  §  4. 
P.  S.  205,  §  4. 


Section  3.  Wlioever  attempts  to  incite  or  procure  another  person 
to  commit  perjury,  although  no  perjury  is  committed,  shall  be  punished 
by  imprisonment  in  the  state  prison  for  not  more  than  five  years  or  in 
jail  for  not  more  than  one  year.  R.  l.  210,  §  3.  161  Mass.  120. 


G.  S.  163,  §  5. 
p.  S.  205,  I  7. 
R.  L.  210,  §  4 


on^JSSip'tion      Section  4.     If  it  appears  to  a  court  of  record  that  a  party  or  a  witness  1 

R  ^^"i'28''i  6    ^^^°  ^^^  been  legally  sworn  and  examined,  or  has  made  an  affidavit,  in  any  2 

proceeding  in  a  court  or  course  of  justice  has  so  testified  as  to  create  a  3 

reasonable  presumption  that  he  has  committed  perjury  therein,  the  court  4 

may  forthwith  commit  him  or  may  require  him  to  recognize  with  sureties  5 

for  his  appearance  to  answer  to  an  indictment  for  perjury;  and  thereupon  6 

the  witnesses  to  establish  such  perjury  may,  if  present,  be  bound  over  to  7 

the  superior  court,  and  notice  of  the  proceedings  shall  forthwith  be  given  8 

to  the  district  attorney.  9 


Section  5.     If  perjury  is  reasonably  presumed,  as  aforesaid,  papers, 


Papers,  etc., 

may  be  de-  _       ,       _  ,     ,  _     _ 

R."s.''i2s,  §  7.   books  or  documents  wliich  have  been  produced  and  are  considered  neces- 
p's'2oi'is'   ^'^^  *°  ^^  used  on  a  prosecution  for  such  perjiu-y  may  by  order  of  the 
R.  L.  210,  §  5.    court  be  detained  from  the  person  who  produces  them  so  long  as  may 
be  necessary  for  their  use  in  such  prosecution. 


CbAP.   268.]  CRIMES   AGAINST  PUBLIC  JUSTICE.  2735 

1  Section  6.     Except  as  provided  in  sections  forty-eight  and  forty-nine  Penalties  for 

2  of  chapter  one  hiuidred  and  fifty-five,  whoever  shall  wilfully  make  false  Pepon^etcrto 

3  report  to  the  department  of  public  utilities,  the  department  of  public  pSic'utiiities, 

4  works,  the  department  of  banking  and  insurance',  or  the  commissioner  *J,1j  jg^ 

5  of  corporations  and  taxation,  or  who,  before  any  such  department  or  l?\%"'*i^^9 

6  commissioner,  shall  testify  or  affirm  falsely  to  any  material  fact  in  any 

7  matter  wherein  an  oath  or  affirmation  is  required  or  authorized,  or  who 

8  shall  make  any  false  entry  or  memorandum  upon  any  book,  report,  paper 

9  or  statement  of  any  company  making  report  to  any  of  the  said  depart- 

10  ments  or  commissioners,  with  intent  to  deceive  the  department  or  com- 

11  missioner,  or  any  agent  appointed  to  examine  the  affairs  of  any  such 

12  company,  or  to  deceive  the  stockholders  or  any  officer  of  any  such  com- 

13  pany,  or  to  injure  or  defraud  any  such  company,  and  any  person  who 

14  with  like  intent  aids  or  abets  another  in  any  violation  of  this  section 

15  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  by 

16  imprisonment  for  not  more  than  one  year,  or  both. 

1  Section  7.     ^\^loever  corruptly  gives,  offers  or  promises  to  a  legis-  Bribe  to  officer. 

2  lative,  executive,  judicial,  county  or  municipal  officer,  after  his  election  g'.  s.  li.s.'  §  j'. 

3  or  appointment,  either  before  or  after  he  has  qualified  or  has  taken  his  isq^i,  m9',\^i. 

4  seat,  any  gift  or  gratuity  whatever,  with  intent  to  influence  his  act,  ^ss^Mas^' Iso. 

5  vote  or  opinion,  decision  or  judgment  upon  any  matter,  ciuestion,  cause  JyoMassPs' 

6  or  proceeding  which  may  be  then  pending,  or  which  may  by  law  come  216  Mass.  121;. 

7  or  be  brought  before  him  in  his  official  capacity,  or  as  a  consideration 

8  for  any  speech,  work  or  service  in  connection  therewith,  shall  be  pun- 

9  ished  by  imprisonment  in  the  state  prison  for  not  more  than  five  years 

10  or  by  a  fine  of  not  more  than  three  thousand  dollars  and  imprisonment 

11  in  jail  for  not  more  than  one  year. 

1  Section  8.     A  legislative,  executive,  judicial,  county  or  municipal  bribe''by°offi°er 

2  officer  who  corruptly  requests  or  accepts  a  gift  or  gratuity  or  a  promise  to  g- 1- 128,  § ». 

3  make  a  gift  or  to  do  an  act  beneficial  to  him,  under  an  agreement  or  with  p.s.'205,'§  ia 

4  an  understanding  that  his  vote,  opinion  or  judgment  shall  be  given  in  r.  l'.  210,  §7. 

5  any  particular  manner,  or  upon  a  particular  side  of  any  question,  cause  ^''^  *'"'"'■  *'' 

6  or  proceeding,  which  is  or  may  be  by  law  brought  before  him  in  his 

7  official  capacity  or  as  a  consideration  for  any  speech,  work  or  service 

8  in  connection  therewith,  or  that,  in  such  capacity,  he  shall  make  any 

9  particular  nomination  or  appointment,  shall  forfeit  his  office,  be  forever 

10  disqualified  to  hold  any  public  office,  trust  or  appointment  under  the 

11  constitution  or  laws  of  the  commonwealth,  and  be  punished  by  impris- 

12  onment  in  the  state  prison  for  not  more  than  ten  years  or  by  a  fine  of 

13  not  more  than  five  thousand  dollars  and  imprisonment  in  jail  for  not 

14  more  than  two  years. 

1  Section  9.     An  officer  or  agent  of,  or  a  person  employed  by,  the  Taking  bonus. 

2  commonwealth,  or  by  a  county,  city,  town  or  by  any  public  institution  omcer.^ ''" 

3  not  mentioned  in  section  twelve  who,  being  authorized  to  procure  ma-  §§'^f;2°'' 

4  terials,  supplies  or  other  articles  either  by  purchase  or  contract,  or  to  fjg^an'.W.' 

5  employ  service  or  labor,  receives,  directly  or  indirectly,  for  himself  or  R-  l.  216,  §  8. 

6  for  another,  a  commission,  discount,  bonus,  present  or  reward  from  the 

7  person  who  makes  such  contract,  furnishes  such  materials,  supplies  or 

8  other  articles,  or  from  a  person  who  renders  service  or  labor  under  such 

9  contract,  and  a  person  who  gives  or  offers  such  commission,  discount. 


2736 


CRIMES   AGAINST   PUBLIC   JUSTICE. 


[Chap.  268. 


Taking  bonus, 
etc.,  by  mem- 
ber of  legisla- 
ture, city 
council,  etc. 
1872,  274. 
1875,  232. 
P.  S.  205,  §  12. 
R.  L.  210,  §  9. 
122  IVlass.  629. 
195  Mass.  173. 
lOp  A.  G. 
502. 


bonus,  present  or  reward,  shall  be  punished  by  a  fine  of  not  less  than  10 
ten  nor  more  than  five  hundred  dollars  or  by  such  fine  and  imprisonment  1 1 
for  not  more  than  one  year.  12 

Section  10.  A  member  of  the  general  court,  or  of  the  executive  1 
council,  or  of  a  state  department  or  commission,  who  is  personally  2 
interested,  directly  or  indirectly,  in  a  contract  made  by  the  general  court  3 
or  by  either  branch  thereof  or  by  such  department  or  commission  or  by  4 
its  authority,  in  which  the  commonwealth  is  an  interested  party;  or  a  5 
person,  so  interested,  who  alone  or  with  others  represents  the  common-  6 
wealth  in  making  such  contract;  or  such  member  or  person  who  receives  7 
a  commission,  discount,  bonus,  present  or  reward  from  a  person  or  persons  8 
making  or  performing  such  contract;  or  a  member  of  a  city  council  or  9 
any  branch  thereof  or  of  a  municipal  board  of  a  city  who  is  personally  10 
interested,  directly  or  indirectlj',  in  a  contract  made  by  the  city  council  11 
or  by  any  branch  thereof,  or  by  such  board  or  by  authority  derived  12 
therefrom,  in  which  the  city  is  an  interested  party;  or  a  person,  so  13 
interested,  who  alone  or  with  others  represents  a  city  in  making  such  14 
contract;  or  such  member  or  person  who,  directly  or  indirectly,  for  him-  15 
self  or  for  another  receives  a  commission,  discount,  bonus,  present  or  16 
reward  from  any  person  or  persons  making  or  performing  such  contract,  17 
shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  one  thou-  18 
sand  dollars  or  by  such  fine  and  imprisonment  for  not  more  than  one  19 
year.  20 

by^'ounty"""        SECTION  11.     A  couuty  officcr  who  is  personally  interested,  directly  1 

1S93T271  §  2     °r  indirectly,  in  a  contract  made  by  the  county  treasurer,  county  commis-  2 

R.  L.  210,  §  10.  sioners,  or  by  their  authority,  in  which  the  county  is  an  interested  party  3 

or  a  person  who  alone  or  with  others  represents  a  county  in  making  such  4 

contract,  who  is  so  interested,  or  such  officer  or  person  who,  directly  or  5 

indirectly,  for  himself  or  for  another,  receives  a  commission,  discount,  6 

bonus,  present  or  reward  from  a  person  making  or  performing  such  7 

contract,  shall  be  punished  as  provided  in  the  preceding  section.  8 


Section  12.     An  officer  connected  with  a  prison,  house  of  correction, 
state  hospital  or  other  public  charitable  institution  who  is  personally 


Bribery  of 
officer  of 
public  institu- 

187^2.282.  interested,  directly  or  indirectly,  in  a  contract,  purchase  or  sale  made 
R.  ^"216,  §  ii.  on  account  of  such  institution,  or  who  corruptly  accepts  a  bribe,  present 
or  gratuity  from  any  person  interested  in  such  contract  and  a  person 
interested,  directly  or  indirectly,  in  a  contract  connected  with  any  such 
institution  who  corruptly  gives,  offers  or  promises  to  an  officer  of  such 
institution  a  bribe,  gift  or  gratuity,  shall  be  punished  by  imprisonment 
in  the  state  prison  for  not  more  than  three  years  or  by  a  fine  of  not  more 
than  one  thousand  dollars  or  by  imprisonment  in  jail  for  not  more  than 
two  years  or  by  both  such  fine  and  imprisonment  in  jail. 


Section  13.     Whoever  corrupts  or  attempts  to  corrupt  a  master  in 
10.  chancery,  master,  auditor,  juror,  arbitrator,  umpire  or  referee  by  giving. 


Corrupting 
juror,  arbi- 
trator, etc. 
R.  S.  128,  I  . 

ps'2(w '§  14  offering  or  promising  any  gift  or  gratuity  whatever,  with  intent  to  in- 
R.  L.  210,  §  12.  fluence  his  opinion  or  decision,  relative  to  a  cause  or  matter  pending  in 
a  court,  or  before  an  inquest,  or  for  the  decision  of  which  he  has  been 
chosen  or  appointed,  shall  be  punished  by  imprisonment  in  the  state 
prison  for  not  more  than  five  years  or  by  a  fine  of  not  more  than  one 
thousand  dollars  and  imprisonment  in  jail  for  not  more  than  one  year. 


1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 

1 

2 
3 
4 
5 
6 
7 
8 


Chap.  268.]  crimes  against  public  justice.  2737 

1  Section  14.     Whoever,   being  summoned  as  a  juror  or  chosen  or  Acceptance  of 

2  appointed  as  an  arbitrator,  umpire  or  referee,  or,  being  a  master  in  afbi?rafor,"etc.' 

3  chancery,  master  or  auditor,  corruptly  takes  anything  to  give  his  verdict,  §;  §;  }o|;  |  }J; 

4  award  or  report,  or  corruptly  receives  any  gift  or  gratuity  from  a  party  ^- 1;  ^^^^  ^^ ^j 

5  to  a  suit,  cause  or  proceeding  for  the  trial  or  decision  of  which  such  juror  i74  Mass.' 79. 

6  has  been  summoned,  or  for  the  hearing  or  determination  of  which  such 

7  master  in  chancery,  master,  auditor,  arbitrator,  umpire  or  referee  has 

8  been  chosen  or  appointed,  shall  be  punished  by  imprisonment  in  the 

9  state  prison  for  not  more  than  five  years  or  by  a  fine  of  not  more  than 

10  one  thousand  dollars  and  imprisonment  in  jail  for  not  more  than  one 

11  year. 

1  Section  15.    Whoever  conveys  into  the  state  prison,  the  Massa-  Aiding  escape 

2  chusetts  reformatory  or  reformatory  for  women,  or  into  a  jail,  house  of  inTres"u'iSg 

3  correction,  house  of  reformation  or  like  place  of  confinement,  a  disguise,  g''L"i27  §  4 

4  instrument,  tool,  weapon  or  other  thing  which  is  adapted  or  useful  to  n°3%^'^' 

5  aid  a  prisoner  in  making  his  escape,  with  intent  to  aid  the  escape  of  a  i'S*. 4i.  §  2. 

6  prisoner,  or  whoever,  by  any  means,  aids  or  assists  such  prisoner  in  §§  o.'s 

7  endeavoring  to  escape  therefrom,  whether  such  escape  is  effected  or  isi?!  us!  §24. 

8  attempted  or  not,  and  whoever  forcibly  or  fraudulently  rescues  or  at-  f44^§'4f.'  ^  '^' 

9  tempts  to  rescue  a  prisoner  held  in  custody  upon  a  conviction  or  charge  ^_,gS- 1|3,  §  ii; 

10  of  crime,  shall,  if  the  person  whose  escape  or  rescue  was  effected  or  in-  2oAmo'  ^ '''' 

1 1  tended  is  a  convict  under  sentence  in  the  state  prison  or  is  charged  r"  l  210,  §  14. 

12  with  a  felony,  be  punished  by  a  fine  of  not  more  than  five  hundred 

13  dollars  or  by  imprisonment  in  the  state  prison  for  not  more  than  ten 

14  years;  but  if  he  is  a  convict  under  sentence  in  any  other  of  said  institu- 

15  tions,  by  imprisonment  in  the  state  prison  for  not  more  than  seven  years; 

16  and  if  he  is  charged  with  a  misdemeanor,  then  by  a  fine  of  not  more 

17  than  five  hundred  dollars  or  by  imprisonment  in  jail  for  not  more  than 

18  two  years. 

1  Section  16.     A  prisoner  who  escapes  or  attempts  to  escape  from  any  Penalty  for 

2  penal  institution,  or  from  land  appurtenant  thereto,  or  from  the  custody  Attempted 

3  of  any  officer  thereof  or  wliile  being  conveyed  to  or  from  any  such  institu-  peMUnsutlj- 

4  tion,  may  be  pursued  and  recaptured  and  shall  be  punished  by  imprison-  I'goj- jjg 

5  ment  in  the  institution  to  which  he  was  originally  sentenced,  for  a  term  ||.*1'  '9, 

6  not  exceeding  five  years.    If  the  prisoner  has  escaped  or  attempted  to  §§y,'io.' 

7  escape  from  the  prison  camp  and  hospital,  the  expense  of  supporting  him  1827!  ua, 


8  shall  be  paid  by  the  institution  to  which  he  is  sentenced  and  the  expense  i834l'i5f,  §  14. 

9  of  committing  him  shall  be  paid  by  the  prison  camp  and  hospital.    In  f^  |(,i|f:  144^ 

10  imposing  sentence  under  this  section  the  court  shall  observe  the  pro-  flj^'g^*- 

1 1  visions  of  law  regarding  sentences  and  commitments  to  the  various  penal  g.  s.'ns  §  46; 

-,0    .        ..,      ,.  1/9,  |§  53, 5-1. 

12  institutions. 

1866.198,5  5.  1885,  94,  §§2,  3.  1918,  257,  §  464. 

1870,  288,  §  3.  R.  L.  85,  §  33;  1919,  5. 

1873,  73,  §  1.  210,  §§  15-18.  1920,  2;  380. 

1880,  257,  §  8.  1903,  ISS.  4  Met.  360. 

P.  S.  88,  §  8;  220,  §  50;  1904,  243,  §  2.  5  Met.  555. 

221,  §§  36,  37.  1905,  355,  §  3.  5  .yien,  130. 

1882,  198.  1916,  187.  Op.  A.  G.  (1920)  95. 

1  Section  17.    Whoever  aids  or  assists  a  prisoner  in  escaping  or  attempt-  Aiding  escape 

2  ing  to  escape  from  an  officer  or  person  who  has  the  lawful  custody  of  such  officer!" 

3  prisoner  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  dollars  [HI]  us,  fk. 

4  or  by  imprisonment  for  not  more  than  two  years.  R.  s.  i28,  §  i3, 

G.S.  163,  §12.  P.  S.  205,  §17.  R.  L.  210,  §  21.  119  jlass.  297. 


2738 


CRIMES  AGAINST  PUBLIC  JUSTICE. 


[Chap.  268. 


Officer  suffering 
escape- 
1700-1,  2,  §  6. 
1784.41.  §  3. 
R.  S.  128.  §  14. 
G.  S.  163,  I  13. 
P.  S.  205.  §  18. 
R.  L.  210,  §  25. 


Section  18.    A  jailer  or  officer  who,  except  as  provided  in  the  follow-  1 

ing  section,  voluntarily  suffers  a  prisoner  in  his  custody  upon  conviction  2 

or  upon  a  charge  of  crime  to  escape  shall  suffer  the  punishment  and  3 

penalties  to  which  the  prisoner  whom  he  suffered  to  escape  was  sentenced  4 

or  would  be  liable  to  suffer  upon  conviction  of  the  crime  where^nth  he  5 

stood  charged.  6 


Suffering  or 
consenting  to 
escape  from 
state  prison. 
1805,  113,  §  6. 
1827,  118,  §22. 
R.  S.  144,  5  39. 


Section  19.     An  officer  or  other  person,  who,  being  employed  in  the  1 

state  prison,  voluntarily  suffers  a  convict  confined  therein  to  escape,  or  2 

in  any  way  consents  to  such  escape,  shall  be  punished  by  imprisonment  3 

in  said  prison  for  not  more  than  twenty  j'ears.  4 

G.  S.  179,  I  55.  P.  S.  221,  §  38.  R.  L.  210,  J  26. 


Section  20.    A  jailer  or  officer  who,  tlirough  negligence,  suffers  a 


Negligently 
suffering 

fusiTg^to receive  prisoner  in  his  custody  upon  conviction  or  upon  a  charge  of  crime  to 
^"lT28  5  2     escape,  or  wilfully  refuses  to  receive  into  his  custody  a  prisoner  lawfully 
directed  to  be  committed  thereto  upon  conviction,  upon  a  charge  of 
crime,  or  upon  a  lawful  process,  shall  be  punished  by  a  fine  of  not  more 
than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  two  years. 

R.  L.  210,  §  27. 


1700-1,  2,  §  7. 
1784,  41,  §  3. 
R.  S.  128,  I  15. 
G.  S.  163,  §  14. 
P.  S.  205,  §  19. 


Leaving  pris- 
oner at  large. 
1805,  113,  §  7. 
1811,32,  §  7. 
1827,  118.  §23. 
G.  S.  179.  §  56. 
P.  S.  221,  §  39. 
R,  L.  210,  §  28. 


Section  21.    An  officer  or  person  who,  being  employed  in  the  state  1 

prison,  suffers  a  con\'ict  under  sentence  of  solitary  imprisonment  to  be  2 

at  large  or  out  of  the  cell  assigned  to  him,  or  suffers  any  convict  confined  3 

in  the  prison  to  be  at  large  out  of  the  prison,  or  to  be  visited,  conversed  4 

with  or  in  any  way  relieved  or  comforted,  contrary  to  the  regulations  of  5 

the  prison,  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  6 

dollars.  7 


Section  22.    An  officer  who  wilfully  delays  service  of  a  warrant  of    1 
arrest  or  a  search  warrant  committed  to  him  for  service  shall  be  pun-    2 

3 


Delay  of 
service  of 
warrant. 
1899  389 

R.  l!  2io!  §  29.  ished  by  a  fine  of  not  more  than  fifty  dollars 


Refusal  to 
arrest,  and 
suffering 
escape. 

R.  S.  128,  §  16. 
G.  S.  163.  §  15. 
P.  S.  205,  §  20. 
R.  L.  210,  §  30. 


Refusal  to  aid 
officer. 
1795,  68,  §  1. 
R.  S.  128,  §  17. 
1855.  45. 
G.  S.  163,  §  16. 
P.  S.  205,  §  21. 
R.  L.  210,  §31. 


Refusal  to 
arrest  upon 
order  of  a 
justice  of 
tlie  peace. 
1795,  6S,  §  3. 
R.  S.  128,  §  18. 
G.  S.  163,  §  17. 
P.  S.  205,  §  22. 
R.  L.  210,  §  32. 


Section  23.     An  officer  who,  being  authorized  to  serve  process,  wilfully  1 

and  corruptly  refuses  to  execute  a  lawful  process  directed  to  him  and  2 

requiring  him  to  apprehend  or  confine  a  person  convicted  of  or  charged  3 

with  crime,  or  wilfully  and  corruptly  omits  or  delays  to  execute  such  4 

process,  whereby  such  person  escapes,  shall  be  punished  by  a  fine  of  not  5 

more  than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  6 

one  year.  7 

Section  24.    \Mioever,  being  required  in  the  name  of  the  common-  1 

wealth  by  a  sheriff,  deputy  sheriff,  constable,  police  officer  or  watchman,  2 

neglects  or  refuses  to  assist  him  in  the  execution  of  his  office  in  a  criminal  3 

case,  in  the  preservation  of  the  peace  or  in  the  apprehension  or  securing  4 

of  a  person  for  a  breach  of  the  peace,  or  in  a  case  of  escape  or  rescue  of  5 

persons  arrested  upon  civil  process,  shall  be  punished  by  a  fine  of  not  6 

more  than  fifty  dollars  or  by  imprisonment  for  not  more  than  one  month.  7 

Section  25.     Whoever,  being  required  by  a  justice  of  tlie  peace,  1 

upon  view  of  a  breach  of  the  peace  or  of  any  other  offence  proper  for  his  2 

cognizance,  to  apprehend  the  offender,  refuses  or  neglects  to  obey  such  3 

justice,  shall  be  punished  as  provided  in  the  preceding  section;   and  no  4 

person  to  whom  such  justice  is  known  or  declares  himself  to  be  a  justice  5 

of  the  peace  shall  plead  any  excuse  on  pretence  of  ignorance  of  his  office.  6 


Chap.  268.]  crimes  against  public  justice.  2739 

1  Section  26.     Whoever  gives,  sells  or  delivers  spirituous  or  intoxicat-  Furnishing 

2  ing  liquor  to  a  person  confined  in  any  prison  or  other  place  of  confine-  pnsone" 

3  ment,  or  to  a  person  in  the  custody  of  a  sheriff,  constable,  police  officer,  ^^^]  J^J;  |  ll\ 

4  warden  of  a  prison,  or  other  master  or  keeper  of  a  place  of  confinement,  Jf^il' j'yg  5  43 

5  or  has  in  his  possession,  within  the  precincts  of  any  prison  or  other  place  ?■  ^  2|2,  §  2.^ 

6  of  confinement,  any  such  liquor,  with  intent  to  convey  or  deliver  it  to  any 

7  person  confined  therein,  except  under  the  direction  of  the  physician  ap- 

8  pointed  to  attend  such  prisoner,  shall  be  punished  by  a  fine  of  not  more 

9  than  fifty  dollars  or  by  imprisonment  for  not  more  than  two  months. 


2 


1       Section  27.     Whoever  gives,  sells  or  delivers  any  spirituous  or  in-  Penalty  for 
toxicating  liquor  to  any  patient  or  inmate  of  any  public  institution,  or  to  tox"catin| '"' 

3  any  patient  or  inmate  under  the  control  of  any  such  institution,  except  patients  of 

4  under  the  direction  of  a  physician  authorized  so  to  do,  and  whoever  has  fut'ions'."^"' 

5  in  his  possession  within  the  precincts  of  any  such  institution  any  such  J^os,  «o.    ^^ 

6  liquor  with  intent  to  consume  the  same  or  to  convey,  give,  sell  or  deliver  isis.  63. 

7  the  same  to  any  patient  or  inmate  thereof,  except  under  direction  as  afore- 

8  said,  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  by  im- 

9  prisonment  for  not  more  than  two  months. 

1  Section  28.     Whoever  gives  or  delivers  to  a  prisoner  in  the  state  Penalty  for 

2  farm,  in  the  prison  camp  and  hospital,  or  in  any  jail  or  house  of  correc-  to  prisoners 

3  tion,  any  drug  or  article  whatever,  or  has  in  his  possession  within  the  miLion* ''^'^' 

4  precincts  of  any  prison  herein  named  with  intent  to  give  or  to  deliver  to  [HI]  l^l;  5 1 

5  any  prisoner  any  such  drug  or  article  without  the  permission  of  the  super- 

6  intendent,  master  or  keeper,  shall  be  punished  by  a  fine  of  not  more  than 

7  fifty  dollars  or  by  imprisonment  in  a  jail  or  house  of  correction  for  not 

8  more  than  two  months. 

1  Section  29.     A  sheriff,  jailer,  master  of  a  house  of  correction  or  officer  Same  subject. 

•  •  1S171 4Q 

2  of  a  prison  who,  under  any  pretence,  gives,  sells  or  delivers  or  knowmgly  §§  3,'4.   ' 

3  permits  to  be  given,  sold  or  delivered  to  a  prisoner  in  his  custody  any  spir-  §§'2^;i.^*' 

4  ituous  liquor,  or  mixed  liquor  a  part  of  which  is  spirituous,  or  wine,  cider  §f^2*o/|/; 

5  or  strong  beer,  unless  the  physician  of  the  prison  certifies  in  writing  that  j'jfg^gl' 

6  the  health  of  the  prisoner  requires  it;  or  such  sheriff,  jailer,  master  of  a  |v|i 'J^' 

7  house  of  correction  or  officer  of  a  prison  who  willingly  or  negligently  p.  s'mo,' 

8  suffers  such  prisoner  to  have  or  drink  any  spirituous,  fermented  or  other  r.  L.210.  §  20. 

9  strong  or  mixed  liquor,  or  who  places  or  keeps  together  prisoners  in  his 

10  custody  of  different  sexes  or  classes,  contrary  to  section  twenty-two  of 

1 1  chapter  one  hundred  and  twenty-seven,  shall  forfeit  twenty-five  dollars 

12  for  the  first  offence  and  fifty  dollars  for  any  offence  committed  subsequent 

13  to  the  first  conviction,  and,  upon  such  second  conviction,  shall  be  re- 

14  moved  from  office,  and  be  ineligible  to  hold  the  office  of  sheriff,  deputy 

15  sheriff,  jailer,  master  or  keeper  of  any  prison  for  five  years  thereafter. 

16  If  the  physician  certifies  that  the  health  of  the  prisoner  requires  such 

17  liquor,  the  prisoner  shall  be  allowed  the  quantity  prescribed  and  no  more. 

1  Section  30.     Whoever   wilfully   disturbs   the   state  prison,   Massa-  ponaity  for  dis- 

2  chusetts  reformatory,  reformatory  for  women,  state  farm,  Lyman  school,  StuUonr' 

3  industrial  school  for  boys,  industrial  school  for  girls,  prison  camp  and  h^'^l!  Ilo.  §  22. 

4  hospital,  or  a  jail  or  house  of  correction,  or  in  any  manner  seeks  to  attract  J^OO'  255- 

5  the  attention  of,  or  without  the  permission  of  the  officer  in  charge  has  com-  i9i8;257,  §307. 

6  munication  with,  an  inmate  thereof,  shall  be  punished  by  a  fine  of  not  1920'.  2. 


2740 


CRIMES  AGAINST  PUBLIC  JUSTICE. 


[Chap.  268. 


more  than  fifty  dollars  or  by  imprisonment  for  not  more  than  three    7 
months.  8 


Illicit  convey- 
ance of  articles 
to  or  from 
prisons. 
1805,  113,  §  8. 
1825,  84,  §  4. 
R.  S.  144,  §  42. 
1838,  152,  §  1. 
G.  S.  179,  §  58. 

1878.  133. 

1879,  294,  §  34. 
P.  S.  221,  §  41. 
1887,  339. 

R.  L.  210,  §  23. 
19U,  181. 
1914,  635. 

1918,  257, 
§  464. 

1919,  5;  350, 
§83. 

1920,  2. 


Interference 
with  police 
eignal  systems. 
1888.291. 
1901,  527. 
R.  h.  210,  §  24. 


Section  31.     Whoever  delivers  or  procures  to  be  delivered,  or  has  in  1 

his  possession  w-ith  intent  to  deliver,  to  a  con\'ict  confined  in  the  state  2 

prison,  the  Massachusetts  reformatory  or  the  reformatory  for  women,  3 

or  whoever  deposits  or  conceals  in  or  about  the  prison  or  either  reforma-  4 

tory,  or  the  dependencies  thereof,  or  upon  any  land  appurtenant  thereto,  5 

or  in  any  boat  or  vehicle  goinj;  into  the  premises  belonging  to  the  prison  or  6 

either  reformatory,  any  article,  with  intent  that  a  convict  shall  obtain  or  7 

receive  it,  and  whoever  receives  from  a  convict  any  article  with  intent  to  8 

convey  it  out  of  the  prison  or  reformatory,  contrary  to  the  rules  and  9 

regulations  thereof,  and  without  the  knowledge  and  permission  of  the  10 

commissioner  of  correction,  of  the  warden  of  the  state  prison  or  the  super-  1 1 

intendent  of  either  reformatory,  respectively,  shall  be  punished  by  a  fine  12 

of  not  more  than  five  hundred  dollars  or  by  imprisonment  in  the  state  13 

prison  for  not  more  than  three  years  or  in  jail  for  not  more  than  two  and  14 

one  half  years.  15 

Section  32.    WhocA-er  opens  a  signal  box  connected  with  a  police  1 

signal  system  for  the  purpose  of  giving  or  causing  to  be  given  a  false  2 

alarm,  or  interferes  in  any  way  with  such  box  by  breaking,  cutting,  in-  3 

juring  or  defacing  the  same;   or,  without  authority,  opens,  tampers  or  4 

meddles  with  such  box,  or  with  any  part  or  parts  thereof,  or  with  the  5 

police  signal  wires,  or  with  anything  connected  thercAnth,  or,  with  such  6 

purpose,  wantonly  and  without  cause  tampers  or  meddles  with  a  signal  7 

box  connected  with  a  fire  signal  system  or  with  any  part  or  thing  con-  8 

nected  therewith,  shall  be  punished  by  a  fine  of  not  more  than  five  hun-  9 

dred  dollars  or  by  imprisonment  for  not  more  than  two  years,  or  both.  10 


Falsely 
assuming  to 
be  a  justice 
of  the  peace, 
etc. 

1795,  68,  §  2. 
R.  S.  128,  §  19. 
G.  S.  163,  §  18. 
1877,  200,  §  24. 
P.  S.  205.  §  23. 

1898,  318. 

1899,  178,  §  7. 
R.  L.  210,  §  33. 


Section  33.  Whoever  falsely  assumes  or  pretends  to  be  a  justice  of 
the  peace,  special  commissioner,  sheriff,  deputy  sheriff",  medical  examiner, 
associate  medical  examiner,  constable,  police  officer,  or  watchman,  and 
acts  as  such  or  requires  a  person  to  aid  or  assist  him  in  a  matter  pertain- 
ing to  the  duty  of  such  officer,  shall  be  punished  by  a  fine  of  not  more 
than  foul-  hundred  dollars  or  by  imprisonment  for  not  more  than  one 
year.  lo  Cush.  6i. 


J^Sel-^'"         Section  34.     Whoever  disguises  himself  with  intent  to  obstruct  the 

th"'i'°w°^         due  execution  of  the  law,  or  to  intimidate,  hinder  or  interrupt  an  officer 

1809, 123.  §  2.    or  other  person  in  the  lawful  performance  of  his  duty,  or  in  the  exercise  of 

G.  s.  163;  §  19!  his  rights  under  the  constitution  or  laws  of  the  commonwealth,  whether 

R.L.  210,  S35.  such  intent  is  effected  or  not,  shall  be  punished  by  a  fine  of  not  more 

than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  one  year 

and  may  if  imprisoned  also  be  bound  to  good  behavior  for  one  year  after 

the  expiration  of  such  imprisonment. 


Unauthorized         SECTION  35.     Whoever,  without  being  dulv  authorized  thereto,  prints, 

use  oi  seaj  ol  i  '•  i  l  l 

rity  or  town,      stamps,  engraves  or  affixes,  or  causes  to  be  printed,  stamped,  engraved  or 
of  officer.  affixed  to  any  paper  or  other  article  a  representation  of  the  seal  of  a  town 

p.  s.'265,  §  26.   in  the  commonwealth,  with  intent  to  give  to  such  paper  or  article  an 
R.  L.  210,  §  36.  pf}5^,igj  character  which  it  does  not  possess,  or,  without  being  duly  au- 
thorized thereto,  and  with  intent  to  assume  an  official  character  which 
lie  does  not  possess,  casts,  stamps,  engraves,  makes  or  has  in  his  posses- 


Ch-vp.  269.] 


CRIMES   AGAINST   PUBLIC   PEACE. 


2741 


8  sion  a  badge  or  thing  in  the  likeness  of  an  official  badge  of  a  police 

9  officer,  member  of  a  fire  department,  or  other  officer  appointed  by  a 

10  town  in  the  commonwealth,  or  by  any  department  of  such  town,  shall 

1 1  be  punished  by  a  fine  of  not  more  than  fifty  dollars. 

1  Section  36.     WTioever,  having  knowledge  of  the  commission  of  a  Concealing 

2  felony,  takes  money,  or  a  gratuity  or  reward,  or  an  engagement  therefor,  ™und°mg 

3  upon  an  agreement  or  understanding,  express  or  implied,  to  compound  R''s.''i28,  §  21. 

4  or  conceal  such  felony,  or  not  to  prosecute  therefor,  or  not  to  give  evidence  PI  2o?'/27?' 

5  thereof,  shall,  if  such  crime  is  punishable  with  death  or  imprisonment  '^^  ^i^l°gi  ^'' 

6  in  the  state  prison  for  life,  be  punished  by  imprisonment  in  the  state  *  Alien,  534. 

T         •  f  r  +1  e  •       •    -1  i-  ,.  ^1  12  Allen.  557. 

I   prison  lor  not  more  than  n^-e  years  or  in  jail  for  not  more  than  one  year;  225  Mass.  so. 

8  and  if  such  crime  is  punishable  in  any  other  manner,  by  a  fine  of  not  more 

9  than  five  hundred  dollars  or  by  imprisonment  in  jail  for  not  more  than 
10  two  years. 

1  Section  37.     A  sheriff,  constable  or  other  officer  who,  being  authorized  bni)'e'"fo*r*'''°^ 

2  to  serve  legal  process,  recei\es  from  a  defendant  or  from  any  other  person  neglecting  his 

3  any  money  or  other  valuable  thing  as  a  consideration,  reward  or  induce-  R  s.128, 1 22. 

4  ment  for  omitting  or  delaving  to  arrest  a  defendant,  or  to  carry  him  before  p.'  s.'  205.'  §  28.' 

*•  •  •RI2105  38 

5  a  magistrate,  or  for  delaying  to  take  a  person  to  prison,  or  for  postponing    •   ■      • 

6  the  sale  of  property  under  an  execution,  or  for  omitting  or  delaying  to 

7  perform  any  duty  appertaining  to  his  office,  shall  be  punished  by  a  fine  of 

8  not  more  than  three  hundred  dollars  or  by  imprisonment  for  not  more 

9  than  three  months. 

1  Section  38.     A  recording  officer  who  wilfully  and  corruptly  demands  Extortion  of 

2  and  receives  more  than  the  legal  fee  for  an  official  duty  or  service  shall  ic9^2-3.''37;  §  2. 

3  forfeit  fifty  dollars;  and  any  other  person  who  wilfully  and  corruptly  de-  r.^s.' 122,^19: 

4  mands  and  receives  for  the  performance  of  an  official  duty  or  service,  for  Jsfs.^sn',  §  2. 

5  which  a  fee  or  compensation  is  allowed  by  law,  more  than  the  legal  fee  pf' 205' III' 

6  shall  forfeit  thirty  dollars.    Such  penalties  may  be  recovered  by  com-  Pv^''^,!^^' 

7  plaint  or  indictment  to  the  use  of  the  county,  or  in  tort  to  the  use  of  any  2  .Mak:  523! 

8  person  who  sues  therefor;   but  such  prosecution  or  action  shall  be  com-  17  Mass! 410! 

9  menced  within  one  year  after  the  offence  was  committed. 

1  Pick.  171.  7  Pick.  279.  201  Mass.  261. 

REFERENCE. 
§  6.  False  reports,  etc.,  concerning  corporations,  see  Chap.  15.5,  §§  4S,  49. 


CHAPTER    269. 

CRIMES  AGAINST  PUBLIC  PEACE. 


Sect. 

1.  Suppression  of  unlawful  assembly. 

2.  Penalty  for  refusal  to  assist. 

3.  Neglect  of  mayor  or  other  officer  to 

suppress,  etc. 

4.  Officers  may  quell  unlawful  assembly 

by  force,  etc. 

5.  Armed  force,  if  called  out,  to  obey  or- 

ders of  governor,  et<;. 

6.  Officers,  etc.,  guiltless  if  death  ensues. 


Sect. 

7.  Riotously   destroying   dwelling   house, 

etc. 

8.  Liability  of  cities  and  towns,  etc.,  for 

property  destroyed. 

9.  Carrying  slung  shot,  etc. 

10.  Penalty  for  carrjdng  concealed  weapon. 

11.  Posters  on  earrj-ing  concealed  weapons. 

12.  Manufacturing,  etc.,  slung  shot,  etc. 

13.  False  alarm  of  fire. 


2742 


CRIMES  AG.'VINST   PUBLIC   PEACE. 


[Chap.  269. 


Suppression  of 
unlawful 
assembly. 
1750-1,  17.  5  1. 
1786,  38,  §  1. 
1833.  140,  §  1. 
R.  S.  129,  §  1. 
G.  S.  164,  §  1. 
P.  S.  206,  §  1. 
R.  L.  211,  §  1. 
10  Mass.  518. 
235  Mass.  449. 
3  Op.  A.  G,  488, 
815. 


Section  1.     If  twelve  or  more  persons,  being  armed  with  clubs  or  1 

other  dangerous  weapons,  or  if  thirty  or  more  persons,  whether  armed  2 

or  not,  are  unlawfully,  riotously  or  tumultuously  assembled  in  a  city  or  3 

town,  the  mayor  and  each  of  the  aldermen  of  such  city,  each  of  the  select-  4 

men  of  such  town,  every  justice  of  the  peace  living  in  any  such  city  or  5 

town  and  the  sheriff  of  the  county  and  his  deputies  shall  go  among  the  6 

persons  so  assembled,  or  as  near  to  them  as  may  be  with  safety,  and  7 

in  the  name  of  the  commonwealth  command  all  persons  so  assembled  8 

immediately  and  peaceably  to  disperse;   and  if  they  do  not  thereupon  9 

immediately  and  peaceably  disperse,  each  of  said  magistrates  and  officers  10 

shall  command  the  assistance  of  all  persons  there  present  in  suppressing  11 

such  riot  or  unlawful  assembly  and  arresting  such  persons.  12 


Penalty  for  re- 
fusal to  assist. 
1786,  38.  §  2. 
1835,  140,  §  1. 
R.  S.  129.  §  2. 
G.  S.  164,  §  2. 
P.  S.  206,  5  2. 
R.  L.  211,  §  2. 


Neglect  of 
mayor  or  other 
officer  to  sup- 
press, etc. 
1835,  140,  §  2. 
R.  S.  129.  §  3.- 
G.  S.  164.  §  3. 
P.  S.  206,  §  3. 
R.  L.  211,  §  3. 


Officers  may 
quell  unlawful 
assembly  by 
force,  etc. 
1750-1.  17.  §  2. 
1786.  38.  I  3. 
1835,  140,  I  3. 
R.  S.  129.  §  4. 
G.  S.  164.  §4. 
P.  S.  206.  §  4. 
E.  L.  211,  §  4. 


Section  2.     '\Mioever,  being  present  and  being  so  commanded  to  1 

assist  in  arresting  such  rioters  or  persons  so  unlawfully  assembled,  or  in  2 

suppressing  such  riot  or  unlawful  assembly,  refuses  or  neglects  to  obey  3 

such  command,  or,  if  required  by  such  magistrate  or  officer  to  depart  4 

from  the  place,  refuses  or  neglects  so  to  do,  shall  be  considered  one  of  5 

the  rioters  or  persons  unlawfully  assembled,  and  may  be  prosecuted  and  6 

punished  accordingly.  7 

Section  3.     A  mayor,   alderman,   selectman,   justice  of  the  peace,  1 

sheriff  or  deputy  sheriff  who,  having  notice  of  any  such  riotous  or  tu-  2 

multuous  and  unlawful  assembly  in  the  city  or  town  where  he  lives,  3 

neglects  or  refuses  immediately  to  proceed  to  the  place  of  such  assem-  4 

bly,  or  as  near  thereto  as  he  can  with  safety,  or  omits  or  neglects  to  5 

exercise  the  authority  conferred  upon  him  by  this  chapter  for  suppress-  6 

ing  such  assembly  and  for  arresting  the  oft'enders,  shall  be  punished  7 

by  a  fine  of  not  more  than  three  hundred  dollars.  8 

Section  4.     If  any  persons  who  are  so  riotously  or  unlawfully  as-  1 

sembled,  and  who  have  been  commanded  to  disperse,  as  before  pro-  2 

vided,  refuse  or  neglect  to  disperse  without  unnecessary  delay,  any  two  3 

of  the  magistrates  or  officers  before  mentioned  may  require  the  aid  of  a  4 

sufficient  number  of  persons,  in  arms  or  otherwise  as  may  be  necessary,  5 

and  shall  proceed,  in  such  manner  as  they  deem  expedient,  forthwith  6 

to  disperse  and  suppress  such  assembly,  and  seize  and  secure  the  persons  7 

composing  the  same,  so  that  they  may  be  proceeded  with  according  to  8 

law.  9 


Armed  force, 
if  called  out, 


etc. 

R.  S.  129,  §  5. 
G.  S.  164,  §  5. 
P.  S.  206,  §  5. 
R.  L.  211,  5  5. 


Section  5.  AMien  an  armed  force,  called  out  under  chapter  thirty-  1 
of  "overnOT""  three  to  suppress  a  tumult  or  riot,  or  to  disperse  a  body  of  men  acting  2 
together  by  force  and  with  intent  to  commit  a  felony,  or  to  offer  violence  3 
to  persons  or  property,  or  with  intent  by  force  or  violence  to  resist  or  4 
oppose  the  execution  of  the  laws  of  the  commonwealth,  arrives  at  the  5 
place  of  such  unlawful,  riotous  or  tumultuous  assembly,  its  members  shall  6 
obey  such  orders  for  suppressing  the  riot  or  tumult,  and  for  dispersing  7 
and  arresting  all  persons  who  are  committing  any  of  said  offences,  as  8 
they  have  received  from  the  governor,  or  a  judge  of  a  coiu-t  of  record,  9 
or  the  sheriff  of  the  county,  and  also  such  orders  as  they  there  receive  10 
from  any  two  of  the  magistrates  or  officers  before  mentioned.  11 


^iXif/""         Section  6.     If,  by  reason  of  the  efforts  made  by  any  two  or  more     1 
i75a^i'°i7"1'i    °^  ^'^'•^  magistrates  or  officers  or  by  their  direction  to  disperse  such  as-    2 


Chap.  269.]  crimes  against  public  peace.  2743 


3  sembly,  or  to  seize  and  secure  the  persons  composing  the  same  who  have  i786, 38.  §  i. 

4  refused  to  disperse,  though  the  number  remaining  may  be  less  than  R^i;  129,' §  6.' 

5  twelve,  any  such  person  or  any  other  person  then  present  is  killed  or  g.^I;  fli.Ve. 

6  wounded,  the  magistrates  and  officers,  and  all  persons  acting  by  their  rl  2°n\6 

7  order  or  under  their  direction,  and  all  persons  acting  under  the  two  pre-  <"  ^Uen,  541. 

8  ceding  sections,  shall  be  held  guiltless,  and  fully  justified  in  law;  and  if 

9  any  of  said  magistrates  or  officers,  or  any  person  acting  under  or  by  the 

10  direction  of  any  of  the  officers  before  mentioned,  is  killed  or  wounded, 

11  all  persons  so  assembled,  and  all  other  persons  who,  when  commanded 

12  or  required,  refused  to  aid  and  assist  said  magistrates  or  officers,  shall 

13  be  held  answerable  therefor. 

1  Section  7.    If  any  of  the  persons  so  unlawfully  assembled  demolishes,  Riotously  de- 

2  pulls  down  or  destroys,  or  begins  to  demolish,  pull  down  or  destroy,  a  fngTome.ltc." 

3  dwelling  house  or  other  building,  or  a  ship  or  vessel,  he  shall  be  punished  iTse^a's,'^'!^' 

4  by  imprisonment  in  the  state  prison  for  not  more  than  five  years  or  by  a  §■  |-  J^s.  §  7. 

5  fine  of  not  more  than  one  thousand  dollars  and  imprisonment  in  jail  for  Kf;  2°n|7 

6  not  more  than  two  years,  and  shall  also  be  liable  in  tort  to  any  person 

7  for  all  damages  sustained  by  him  thereby. 

1  Section  8.    If  property  of  the  value  of  fifty  dollars  or  more  is  de-  Liability  of 

2  stroyed  or  if  property  is  injured  to  that  amount  by  twelve  or  more  per-  towns?etc , 

3  sons  who  are  riotously  or  tumultuously  assembled,  the  town  within  which  d^troye".'^ 

4  the  property  was  situated  shall,  if  the  owner  of  such  property  uses  all  JP|'|''' 

5  reasonable  diligence  to  prevent  its  destruction  or  injury,  and  to  procure  P.fi^''' 

6  the  conviction  of  the  offenders,  be  liable  to  indemnify  the  owner  thereof  in  !».  s.'  206, 

7  tort  to  the  amount  of  three  fourths  of  the  value  of  the  property  destroyed  e.  l.  211,  §  s. 

8  or  of  the  amount  of  such  injury  thereto,  and  may  recover  the  same  ^°^    ass.  2-46. 

9  against  any  or  all  of  the  persons  who  destroyed  or  injured  such  property. 

1  Section  9.     Whoever,  when  arrested  upon  a  warrant  for  an  alleged  ^^J^g^^j  gj^ 

2  crime,  and  whoever,  when  arrested  while  committing  a  crime  or  a  breach  jsso.  i94,  §  1. 

3  or  disturbance  of  the  public  peace,  is  armed  with  or  has  on  his  person  isso;  199! 

4  any  slung  shot,  metallic  knuckles,  billy,  revolver  or  pistol,  loaded  or  p.' s.' 206.' §  lo.' 

5  unloaded,  or  other  dangerous  weapon,  shall  be  punislied  by  a  fine  of  ignisls',  p; 

6  not  less  than  one  hundred  nor  more  than  five  hundred  dollars  or  by  7^Au'en°583.^' 

7  imprisonment  for  not  less  than  six  months  nor  more  than  two  and  one  half  1°^  ^"^^^  '^*^- 

8  years  in  a  jail  or  house  of  correction  or  for  not  less  than  two  and  one  half 

9  years  nor  more  than  five  years  in  the  state  prison,  or  by  both  such  fine 
10  and  imprisonment. 

1  Section  10.     Whoever,  except  as  provided  by  law,  carries  on  his  per-  Penalty  for 

2  son  a  pistol  or  revolver,  without  permission  under  section  one  hundred  ceaied  weapon. 

3  and  thirty-one  of  chapter  one  hundred  and  forty,  or  whoever  carries  any  Jgos!  350'; 

4  stiletto,  dagger,  dirk  knife,  slung  shot  or  metallic  knuckles,   shall  be  fgji  543  5  2. 

5  punished  by  a  fine  of  not  less  than  one  hundred  nor  more  than  five  hun-  35o;'§§  99,  iolj. 

6  dred  dollars,  or  by  imprisonment  for  not  less  than  six  months  nor  more 

7  than  two  and  one  half  years  in  a  jail  or  house  of  correction  or  for  not  less 

8  than  two  and  one  half  years  nor  more  than  five  years  in  the  state  prison, 

9  or  by  both  such  fine  and  unprisonment,  and  upon  conx-iction  the  pistol 

10  or  other  article  shall  be  confiscated  by  the  commonwealth.    The  pistol  or 

1 1  article  so  confiscated  shall,  by  the  authority  of  the  written  order  of  the 

12  court  or  trial  justice,  be  forwarded  by  common  carrier  to  the  commis- 


2744 


CRDIES   AGAINST  PUBLIC   HEALTH. 


[Ch.U'.   270. 


sioner  of  public  safety,  who,  upon  receipt  of  the  same,  shall  notify  said  13 
court  or  justice  thereof.  Said  officer  may  sell  or  destroy  the  same,  and,  14 
in  case  of  a  sale,  after  paying  the  cost  of  forwarding  the  article,  shall  pay  15 
over  the  net  proceeds  to  the  commonwealth.  16 


Posters  on 
carrying 
concealed 
weapoQs. 
1912,  391. 


Section'  11.  The  state  secretary  shall,  frqm  time  to  time,  cause  to  be  1 
printed,  in  English  and  in  such  other  languages  as  he  may  deem  neces-  2 
sary  and  in  large  letters  so  as  to  be  easily  read,  for  use  as  a  poster,  section  3 
one  hundred  and  tliirty-one  of  chapter  one  hundred  and  forty  and  sec-  4 
tion  ten  of  this  chapter.  Sufficient  copies  of  the  said  poster  shall  be  sent  5 
to  the  clerks  of  all  towns,  for  their  use  as  herein  provided,  and  shall  be  6 
posted  under  the  direction  of  the  to^-n  clerks  in  such  places  as  they  may  7 
select,  and  in  such  numbers,  according  to  the  population  of  the  town,  as  8 
its  clerk  may  deem  expedient.  The  cost  of  preparing  and  printing  the  9 
posters  and  of  distributing  them  to  the  various  towns  shall  be  paid  by  10 
the  commonwealth,  and  the  cost  of  placing  and  affixing  them  in  each  11 
town  shall  be  paid  by  that  town.  12 


Manufacturing, 
etc.,  slung 
shot,  etc. 
1850.  194,  §  2. 
G.  S.  164,  §  11. 
P.  S.  206.  §  11. 
R.  L.211,  §10. 


Section  12.     'WTioever  manufactures  or  causes  to  be  manufactured,  1 

or  sells  or  exposes  for  sale,  an  instrument  or  M-eapon  of  the  kind  usu-  2 

allj-  known  as  slung  shot,  or  metallic  knuckles,  shall  be  punished  by  3 

a  fine  of  not  less  than  fifty  nor  more  than  two  hundred  dollars  or  by  4 

imprisonment  for  not  more  than  six  months.  5 


False  alarm 

of  fire. 

1S37,  177,  §  2. 

G.  S.  164.  §  13. 

P.  S.  206,  §  13. 

1897,  385. 

R.  L.  211, 1  12. 


Section  13.    ^Mioever,  without  reasonable  cause,  by  outcry  or  the  1 

ringing  of  bells,  or  otherwise,  makes  or  circidates  or  causes  to  be  made  2 

or  circulated  a  false  alarm  of  fire  shall  be  punished  by  a  fine  of  not  more  3 

than  one  hundred  dollars  or  by  imprisonment  for  not  more  than  six  4 

months.  5 


CHAPTER    270. 

CRIMES  AGMXST  PUBLIC  HK^LTH. 


Sect. 

1.  Adulteration  of  liquor  used  for  drink. 

2.  Sale  of  poison. 

3.  Distribution,  etc.,  of  harmful  or  inju- 

rious medicines,  etc.,  prohibited. 

4.  Ha%-ing  irith  intent  to  sell  and  selling, 

etc.,  food  or  drink  containing  wood 
alcohol,  etc. 

5.  Sale  or  delivery  of  liquor,  etc.,  to  pa- 

tients in  certain  hospitals  forbidden, 
etc. 

6.  Sale  of  cigarettes,  etc.,  to  certain  mi- 

nors prohibited,  etc. 


Sect. 

7.  Posting  of  notice  as  to  sale   of   ciga- 

rettes, etc.,  to  minors,  and  unlawful 
removal  thereof. 

8.  Sale  of  candy  containing  alcohol. 

9.  Feeding  of  garbage  to  animals. 

10.  Sale  of  articles  containing  arsenic. 

11.  Samples  for  analysis. 

12.  Sale  of  textiles  containing  arsenic. 
1.3.  Refusal  of  water  supply. 

14.  Expectoration  in  certain  public  places. 

15.  Arrest  without  warrant. 


Section  1.    ^^^loever,    for   the 


of    sale,    adulterates    any 


of'^i^uofi        Section  1.     \Mioever,    tor    tne    purpose 

'j°r.drmk.  liquor  used  or  intended  for  drink  with  Indian  cockle,  vitriol,  grains  of 

G.s.'i66,'|4.  paradise,   opium,   alum,   cochineal,   capsicum,  copperas,  laurel  water, 

e'.  l.  213,  §  1.  logwood,  Brazil  wood,  sugar  of  lead  or  any  other  substance  poisonous 


CH-VP.   270.]  CRIJIES  AGAINST  PUBLIC  HEALTH.  2745 

5  or  injurious  to  health,  and  whoever  knowingly  sells  any  such  liquor  so 

6  adulterated,  shall  be  punished  by  imprisonment  in  the  state  prison  for 

7  not  more  than  tliree  years;  and  the  articles  so  adulterated  shall  be 

8  forfeited. 

1  Section  2.     Whoever  sells  arsenic  (arsenious  acid),  atropia  or  any  Saieof 

2  of  its  salts,  chloral  hydrate,  chloroform,  cotton  root  or  its  fluid  extract,  i857','2so. 

3  corrosive  sublimate,  cyanide  of  potassium,  Donovan's  solution,  ergot  p.s.los.'ie.' 

4  or  its  fluid  extract.  Fowler's  solution,  oil  of  pennyroyal,  oil  of  savin,  Jsssilog. 

5  oil  of  tansy,  Paris  green.  Parson's  vermin  exterminator,  phosphorus,  Jfgg'jga  ^"°' 

6  prussic  acid,  "rough  on  rats",  strychnia  or  any  of  its  salts,  tarter  emetic,  J'gjVIgg'  ^  ^• 

7  tincture  of  aconite,  tincture  of  belladonna,  tincture  of  digitalis,  tine-  igisisss! 

8  ture  of  nux  vomica,  tincture  of  veratrum  viride,  compounds  of  fluorine, 

9  or  carbolic  acid,  without  the  written  prescription  of  a  physician,  shall 

10  affix  to  the  bottle,  box  or  wrapper  containing  the  article  sold  a  label 

1 1  of  red  paper  upon  which  shall  be  printed  in  large  black  letters  the  name 

12  and  place  of  business  of  the  vendor  and  the  words  "POISON"  and 

13  "ANTIDOTE  ",  and  the  label  shall  also  contain  the  name  of  an  antidote, 

14  if  any,  for  the  poison  sold.    He  shall  also  keep  a  record  of  the  name  and 

15  quantity  of  the  article  sold  and  of  the  name  and  residence  of  the  person 

16  or  persons  to  whom  it  was  deli\-ered,  which  shall  be  made  before  the 

17  article  is  delivered,  and  shall  be  open  to  inspection  by  the  ofiicers  of 

18  the  state  police  and  by  the  police  authorities  and  oflficers  of  towns. 

19  Whoever  neglects  to  affix  such  label  to  such  bottle,  box  or  wrapper  be- 

20  fore  delivery  thereof  to  the  purchaser,  or  whoever  neglects  to  keep  or 

21  refuses  to  show  to  said  officers  such  record,  or  whoever  purchases  any 

22  of  said  poisons  and  gives  a  false  or  fictitious  name  to  the  vendor  shall 

23  be  punished  by  a  fine  of  not  more  than  fifty  dollars.    This  section  shall 

24  not  apply  to  sales  made  by  wholesale  dealers  or  manufacturing  chemists 

25  to  retail  dealers;  or  to  a  general  merchant  who  sells  Paris  green,  London 

26  purple  or  other  arsenical  poisons  in  unbroken  packages  containing  not 

27  less  than  one  quarter  of  a  pound,  for  the  sole  purpose  of  destroying  po- 

28  tato  bugs  or  other  insects  upon  plants,  vines  or  trees,  except  that  he  shall 

29  record  each  sale  and  label  each  package  sold  as  above  provided;   or  to 

30  sales  of  compounds  containing  not  more  than  fifty  per  cent  of  sodium 

31  fluoride  intended  solely  for  the  destruction  of  roaches,  ants  or  other 

32  household  insects,  when  sold  in  sealed  metal  packages  containing  not 

33  less  than  one  fourth  of  a  pound,  plainly  labelled  in  such  a  manner  as  to 

34  show  the  purposes  for  which  the  preparation  was  intended. 

1  Section  3.     Wlioever   distributes,    delivers   or   gives   away   in   any  Distribution 

2  public  way  or  from  house  to  house  or  place  to  place,  any  bottle,  box,  or^injuriou™  " 

3  envelope  or  package  containing  any  liquid,  medicine,  pill,  powder,  tablet  p'r^hrbiied.^'"' 

4  or  other  article  composed  of  any  drug,  poison  or  other  ingredient  or  ^"•>°''- 1*°- 

5  substance  which  may  be  in  any  way  injurious  or  harmful  to  any  person 

6  who  may  taste,  eat,  drink  or  otherwise  use  the  same,  shall  be  punished 

7  by  a  fine  of  not  less  than  fifty  nor  more  than  one  hundred  dollars. 

1  Section  4.     ^^^loeve^,  himself,  or  by  his  servant  or  agent,  or  as  the  Having  with 

2  servant  or  agent  of  another,  sells,  exchanges,  delivers,  or  has  in  his  pos-  STnd'seiii'ng, 

3  session  with  intent  to  sell,  exchange  or  deliver,  any  article  of  food  SHnkron-""" 

4  or  drink,  or  any  drug  intended  for  internal  use,  containing  any  wood  ^t™^;\X^ 

5  alcohol,  otherwise  known  as  methyl  alcohol,  either  crude  or  refined,  Jms.  gW,  §  2. 

§§2,'3. 


2746 


CRIMES  AGAINST  PUBLIC   HEALTH. 


[Ch.^.  270. 


under  or  by  whatever  name  or  trade  mark  the  same  may  be  called  or  6 
known,  shall  be  punished  by  a  fine  of  not  less  than  two  hundred  dollars  7 
or  by  imprisonment  for  not  more  than  one  month,  or  both.  8 


Sale  or 
deliverj'  of 
liquor,  etc.. 
to  patients  in 
certain 
hospitals  for- 
bidden, etc. 
1911,30. 


Section  5.     ^^^loeve^,   except  under  the  direction  of  a  physician,  1 

gives,  sells  or  delivers  spirituous  or  intoxicating  liquor  or  a  narcotic  drug  2 

to  a  patient  in  any  hospital  who  is  suffering  from  inebriety  or  from  the  3 

effect  of  inebriety,  or  from  excessive  use  of  narcotic  drugs  or  from  the  4 

effect  of  such  use,  and  whoever  has  in  his  possession  within  the  pre-  5 

cincts  of  any  hospital  any  such  liquor  or  drug  with  intent  to  convey  or  6 

deliver  it  to  any  such  patient,  except  under  direction  as  aforesaid,  shall  7 

be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  by  imprisonment  8 

for  not  more  than  two  months.  9 


Sale  of 
cigarettes, 
etc.,  to  cer- 
tain minors 
prohibited,  etc. 
1886,  72. 
1901.373. 
R.  L.  213,  §  3. 
1909,  346, 
§§1.3. 


Section  6.     \^^^oever  sells  a  cigarette  to  a  person  under  eighteen,  or  1 

whoever  sells  snufi"  or  tobacco  in  any  of  its  forms  to  any  person  under  2 

sixteen,  or,  not  being  his  parent  or  guardian,  gives  a  cigarette  to  a  person  3 

under  eighteen,  or  gives  snuff  or  tobacco  in  any  of  its  forms  to  any  4 

person  under  sixteen,  shall  be  punished  by  a  fine  of  not  more  than  fifty  5 

dollars.    A  copy  of  this  section  printed  in  letters  not  less  in  size  than  6 

eighteen  point  capitals,  boldface,  shall  be  prepared  by  the  department  7 

of  public  health  and  delivered  without  charge  to  towns   applying  8 

therefor.  9 


Posting  of 
notice  as  to 
sale  of  ciga- 
rettes, etc.,  to 
minors,  and 
unlawful  re- 
moval thereof. 
1909,  346, 
§§  1.  2. 


Section  7.     A   copy  of  the   preceding   section   printed   as   therein  1 

specified  shall  be  posted  conspicuously  by  the  owner  or  person  in  charge  2 

thereof  in  the  shop  or  other  place  used  to  sell  cigarettes  at  retail,  and  3 

whoever  violates  this  provision  shall  be  punished  by  a  fine  of  not  more  4 

than  fifty  dollars.     Any  person  unlawfully  removing  a  copy  so  posted  5 

while  said  premises  are  used  for  the  sale  of  cigarettes  shall  be  punished  6 

by  a  fine  of  ten  dollars.  7 


Sale  of  candy 
containing 
alcohol. 
1891,333. 
R.  L.  213.  §  4. 


Section  8.  Whoever  sells  to  a  person  any  candy  enclosing  or  con-  1 
taining  liquid  or  syrup  having  more  than  one  per  cent  of  alcohol  shall  2 
be  punished  by  a  fine  of  not  more  than  one  hundred  dollars.  3 


1913,  647. 


Feeding  of 
garbage  to 
animals, 
1889,  326. 
1895,  385. 
R.  L.  213,  §  5. 


Section  9.     ^Yhoeve^  knowingly  feeds  or  has  in  his  possession  with  1 

intent  to  feed  to  a  milch  cow  any  garbage,  refuse  or  offal  collected  by  a  2 

town,  or  by  any  person  having  authority  therefrom,  shall  be  punished  3 

by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprisonment  for  4 

not  more  than  two  months;   and  whoever  knowingly  feeds  or  has  in  his  5 

possession  with  intent  to  feed  to  any  food  animal,  except  swine,  any  6 

garbage,  refuse  or  ofl'al  collected  by  a  city  of  more  than  thirty  thousand  7 

inliabitants  shall  be  punished  by  a  fine  of  not  more  than  fifty  dollars  or  8 

by  imprisonment  for  not  more  than  one  month.  9 


Sale  of 
articles  con- 
taining arsenic. 
1891,  374,  §  1. 
R.  L.  213,  §  6. 


Section  10.     WTioever,  himself,  or  by  his  agent  or  servant,  or  as  the  1 

agent    or    servant    of    another,    manufactures,    sells    or    exchanges,    or  2 

has   in  his  custody  or  possession  with  intent  to  sell  or  exchange,  or  3 

exposes  or  offers  for  sale  or  exchange,  any  toys  or  confectionery,  con-  4 

taining  or  coated  wholly  or  in  part  with  arsenic,  shall  be  punished  by  5 

a  fine  of  not  less  than  fifty  nor  more  than  one  hundred  dollars.  6 


Chap.  270.]  crimes  against  public  health.  2747 

1  Section  11.     WTioever  offers  or  exposes  for  sale  or  exchange  any  Samples  for 

2  paper,  fabric  or  other  article  shall  furnish  a  sample  thereof  sufficient  isgi^sri,  §  3. 

3  to  ascertain  by  analysis  the  existence  of  arsenic  therein,  if  such  sample  fgj^;  7^^;  |  j- 

4  can  be  obtained  without  damage  to  the  remaining  portion,  to  any  in-  is^^'  ^sol  I  o"- 

5  spector,  chemist  or  other  agent  or  officer  of  the  department  of  public 

6  health  who  applies  therefor  and  tenders  the  value  thereof;    and  for  a 

7  violation  of  this  section  shall  be  punished  as  provided  in  the  preceding 

8  section. 

1  Section  12.     Whoever,  himself,  or  by  his  agent  or  servant,  manu- Saie  of  tex- 

2  factures,  sells  or  exchanges,  or  has  in  his  custody  or  possession  with  araenlc""'"""^ 

3  intent  to  sell  or  exchange,  any  woven  fabric  or  paper  containing  arsenic  \Iq°-^  HI 

4  in  any  form,  or  any  article  of  dress  or  household  use  composed  M'holly  ^Ji4' y.'o' I  f 

5  or  in  part  of  such  woven  fabric  or  paper,  shall  be  pimished  by  a  fine  of  i9i9^  sso',  §  96. 

6  not  less  than  fifty  nor  more  than  two  hundred  dollars;  but  this  section 

7  shall  not  apply  to  articles  intended  for  the  destruction  of  insects,  having 

8  the  word  "POISON"  plainly  printed  in  uncondensed  gothic  letters  not 

9  less  than  one  inch  long  on  both  sides  of  each  sheet  and  square  foot  of 

10  the  fabric,  or  to  dress  goods  or  articles  of  dress  containing  not  more  than 

11  one  one-hundredth  grain,  or  to  other  materials  or  articles  containing  not 

12  more  than  one  tenth  grain  of  arsenic  for  each  square  yard  of  the  material. 

13  The  department  of  public  health  shall  make  all  necessary  investiga- 

14  tions  as  to  the  existence  of  arsenic  in  the  aforesaid  articles  and  materials, 

15  employ  inspectors  and  chemists,  and  adopt  such  measures  as  are  necessary 

16  to  enforce  this  section. 

1  Section  13.     A  corporation  engaged  in  selling  or  distributing  water,  Refusal  of 

2  which  refuses  or  neglects  to  furnish  or  supply  water  to  or  for  any  build-  Tss^rcs.''^' 

3  ing  or  premises  for  the  reason  that  a  water  bill  remains  unpaid  by  a  pre-  ni^Mas^s.  329.' 

4  vious  owner  or  occupant  of  said  building  or  premises  shall,  unless  the 

5  person  applying  for  water  is  in  arrears  to  such  corporation  for  water 

6  previously  furnished  to  or  for  any  building  or  premises,  be  punished  by 

7  a  fine  of  not  less  than  ten  nor  more  than  twenty  dollars. 

1  Section  14.     Whoever  expectorates  or  spits  upon  any  public  side-  Expectoration 

2  walk,  or  upon  any  place  used  exclusively  or  principally  by  pedestrians,  p°wic  places. 

3  or,  except  in  receptacles  provided  for  the  purpose,  in  or  upon  any  part  Jgo?;  ]io; 

4  of  any  city  or  town  hall,  any  court  house  or  court  room,  any  public  isos.  iso. 

5  library  or  museum,  any  church  or  theatre,  any  lecture  or  music  hall, 

6  any  mill  or  factory,  any  hall  of  any  tenement  building  occupied  by  five 

7  or  more  families,  any  school  building,  any  ferry  boat  or  steamboat, 

8  any  railroad  car  or  elevated  railroad  car,  except  a  smoking  car,  any 

9  street  railway  car,  any  railroad  or  railway  station  or  waiting  room,  or 

10  on  any  track,  platform  or  sidewalk  connected  therewith,  and  included 

11  within  the  limits  thereof,  shall  be  punished  by  a  fine  of  not  more  than 

12  twenty  dollars. 

1  Section  15.     Any    person    detected    in    the    act    of   violating    the  Arrest  with- 

2  preceding  section  may,  if  his  name  is  unknown  to  the  officer,  be  ar-  iso7T4i'o,°i'2. 

3  rested  without  a  warrant  by  any  officer  authorized  to  serve  criminal 

4  process  in  the  place  where  the  offence  is  committed  and  kept  in  custody 

5  until  he  can  be  taken  before  a  court  having  jurisdiction  of  such  offence. 


2748 


CHIMES  AGAINST  PUBLIC  POLICY. 


[Chat.  271. 


REFERENCES. 

Regulation  of  sale  of  unwholesome  food  and  penalty,  Chap.  94,  §  150. 

Penalty  for  manufacture,  sale,  etc.,  of  confectionery  detrimental  to  public  health, 
Chap.  94,  §  190. 

Regulation  of  sale  and  distribution  of  narcotic  drugs,  Chap.  94,  §§  19S-206,  211 
and  213. 

Restriction  of  use  of  common  drinking  cups.  Chap.  Ill,  §  8. 

Regulations  as  to  milk  containers.  Chap.  94,  §§46  and  47. 


CHAPTER    271. 

CRIMES  AGAINST  PUBLIC  POLICY. 


Sect. 

1.  Penalty  for  vrinning,  etc.,   money   by 

gaming. 

2.  Gaming  in  public  conveyance,  etc. 

3.  Penalty  on  innholders,  etc.,  for  keeping, 

etc.,  implements  for  gaming. 

4.  Gaming  in  such  places,  and  in  places 

licensed  for  bowling  alleys,  etc. 

5.  Keeping  common  gaming  house,  etc. 

6.  Gaming  at  cattle  shows,  musters,  etc. 

7.  Setting  up  or  promoting  lottery,  gift,  etc. 

8.  Permitting  lotterj',  etc.,  to  be  set  up, 

etc.,  in  a  house,  etc. 

9.  Selling   lottery   ticket,   share,   etc.,   or 

aiding  therein. 

10.  Second  conviction. 

11.  Advertising  lottery  ticket. 

12.  Making  or  selling  ticket  in  a  fictitious 

lottery. 

13.  Tickets,  etc.,  sold  or  offered  prima  facie 

false,  etc. 

14.  Prizes,  etc.,  forfeited. 

15.  Aiding  in  setting  up  foreign  lotterj'. 

16.  Selling  ticket  in  such  lottery,  etc. 

17.  Penalty  for  buying  and   selling  pools 

or  registering  bets. 

18.  Policy  lotteries  and  shops  prohibited. 

19.  Printing,  etc.,   of   tickets  prima  facie 

evidence. 

20.  Lotterj',  etc.,  tickets  nuisances.     Pos- 

session prima  facie  evidence. 

21.  Prima  facie  evidence  of  race,  etc. 

22.  Penalty   for   delivery,  etc.,    of   letters, 

etc. 


Sect. 

23.  Common   gaming   houses,   etc.,   to   be 

entered  and  certain  persons  arrested. 

24.  Exemption  from  penalties  of  chapter. 

25.  Obstructions  in  gaming  houses. 

26.  Penalty  for  subsequent  obstruction. 

27.  Judicial  notice  of  lotteries,  and  prima 

facie  evidence. 

28.  Plea  of  misnomer,  how  received. 

29.  Gift  enterprises  prohibited. 

30.  Sale,    etc.,    of    trading    stamps,    etc., 

prohibited. 

31.  Racing,  etc.,  for  wager,  etc. 

32.  Horses  driven  for  a  premium  or  purse. 

Disguise. 

33.  Location    and    regulation    of    trotting 

parks. 

34.  Unlawful  race  ground  deemed  nuisance. 

Penalty. 

35.  Certain  words  and  phrases  defined  as 

applied  to  bucket  shops. 

36.  Penalty  for  keeping  a  bucket  shop,  and 

jurisdiction  to  dissolve   such  corpo- 
ration. 

37.  Penalty   for    communicating,    etc.,    to 

make  prohibited  contracts. 

38.  Written  statement  to  be  furnished  in 

certain  cases. 

39.  Illegal  gratuity,  etc.,  and  penalty. 

40.  Employment,  discharge,  etc.,  by  pub- 

lic service  corporations  restricted. 

41.  Certain  offices  excepted  from  the  pre- 

ceding section. 

42.  Betting,  etc.,  on  boxing  match,  etc. 


Penalty  for 
winning,  etc., 
money  by 
gamine. 
C.  L.  57,  §  2; 
58,  §  1. 
1785,  58,  §  3. 
R.  S.  50,  §  14. 
G,  S.  85,  §  3. 
P.  S.  99,  §  3. 
R.  L.  214,  §  1. 

Gaming  in 
public  con- 
veyance, etc. 
1869,  382. 


Section  1.    Whoever,  on  a  prosecution  commenced  ■within  eighteen  1 

months  after  the  commission  of  the  crime,  is  convicted  of  winning  at  2 

one  time  or  sitting,  by  gaming  or  betting  on  the  sides  or  hands  of  those  3 

gaming,  money  or  goods  to  the  value  of  five  dollars  or  more,  and  of  receiv-  4 

ing  the  same  or  security  therefor,  shall  forfeit  double  the  value  of  such  5 

money  or  goods.  6 

Section  2.     \Mioever,  in  a  public  conveyance  or  public  place,  or  in  1 

a  private  place  upon  which  he  is  trespassing,  plays  at  cards,  dice  or  any  2 


ClL\P.   271.]  CRIMES  AGAINST  PUBLIC  POLICY.  2749 

3  other  game  for  money  or  other  property,  or  bets  on  the  sides  or  hands  of  j!- 1 19'  §  f 


R.  L.  2U,  §  2. 


SCO. 
370. 


4  those  playing,  shall  forfeit  not  more  than  fifty  dollars  or  be  imprisoned  i9'o7, 

5  for  not  more  than  three  months;    and  Tshoever  sets  up  or  permits  such  loisjas?! 

6  a  game  shall  be  punished  by  a  fine  of  not  less  tlmn  fifty  nor  more  than  1919, 5. 

7  one  hundred  dollars  or  by  imprisonment  for  not  less  than  three  nor  more  ^®^°'  ^' 

8  than  twelve  months.    If  discovered  in  the  act,  he  may  be  arrested  without 

9  a  warrant  by  a  sheriff,  deputy  sheriff,  constable  or  any  officer  qualified  to 

10  serve  criminal  process,  and  held  in  custody,  in  jail  or  otherwise,  for  not 

1 1  more  than  twenty-four  hours,  Sunday  and  legal  holidays  excepted,  until 

12  complaint  may  be  made  against  him  for  such  offence. 

1  Section  3.     Every  innliolder,  common  victualler  or  person  keeping  Penalty  on 

2  or  suffering  to  be  kept  in  any  place  occupied  by  him  implements  such  e'tc.'for"^' 

3  as  are  used  in  gaming,  in  order  that  the  same  may  for  hire,  gain  or  reward  fm^lmenta" 

4  be  used  for  amusement,  who  sufl'ers  implements  of  such  kind  to  be  used  c'^l^st'."! 2 

5  upon  any  part  of  such  premises  for  gaming  for  money  or  other  property,  Jfgg'gj^j'J  ^• 

6  or  who  suffers  a  person  to  play  at  an  unlawful  game  or  sport  therein,  shall  iras!  20] 

7  for  the  first  offence  forfeit  not  more  than  one  hundred  dollars  or  be  im-  1832',  lee,  §  11. 

8  prisoned  for  not  more  than  three  months;  and  for  a  subsequent  offence  50,  «  ib,  ii. 

9  shall  be  imprisoned  for  not  more  than  one  year.    In  either  case  he  shall  J^;  III] 

10  further  recognize  with  sufficient  sureties  in  a  reasonable  sum  for  his  ^^^l;  l^^j  5 

1 1  good  behavior,  and  especially  that  he  will  not  be  guilty  of  any  offence  ?■  |^ sy  ^^ 

12  against  any  of  the  provisions  of  sections  one  to  six,  inclusive,  for  three  sMet.  is'o. 

13  years  from  the  date  of  the  recognizance. 

9  Met.  572.  3  Gush.  279.  12  Cush.  501. 

1  Section  4.     Whoever,    in   any   place   mentioned   in   the   preceding  Gaming  in 

2  section,  for  the  purpose  of  gaming  for  money  or  other  property,  uses  or  ™d  iS'jjUces 

3  takes  part  in  using  a  billiard  table,  bowling  alley  or  other  implement  of  bowu^f  IfLys, 

4  gaming,  or  there  plays  at  an  unlawful  game  or  sport,  or,  for  the  purpose  ^"-^  ^^  ^ , 

5  of  such  gaming,  uses  or  takes  part  in  using  a  billiard  table  or  bowling  alley  }S||"|'g20-|  3. 

6  kept  by  a  person  licensed  under  chapter  one  hundred  and  forty,  shall  for-  iras',  20!  1 3. 

7  feit  not  more  than  fifty  dollars.  1832,  lee,  §11. 

R.  S.  47.  §  10;  G.  S.  85,  §  6.  R.  L.  214,  §  4. 

50,  §  18.  P.  S.  99,  §  7. 

1  Section  5.     Whoever  keeps  or  assists  in  keeping  a  common  gaming  Keeping  com- 

2  house,  or  building  or  place  occupied,  used  or  kept  for  the  purposes  Ke^e™!*^ 

3  described  in  section  twenty-three,  or  is  found  playing  or  present  as  Jsai;  i66,^hi. 

4  provided  in  said  section,  or  commonly  keeps  or  suffers  to  be  kept,  in  a  fs4|  l^^f  "■ 

5  building  or  place  actually  used  and  occupied  by  him,  tables  or  other  Ifi'^^*- 

6  apparatus  for  the  purpose  of  playing  at  an  unlawful  game  or  sport  for  g.s'.|5, 

7  money  or  any  other  valuable  thing,  shall  be  punished  by  a  fine  of  not  isog,  304,  §  1. 

8  more  than  fifty  dollars  or  by  imprisonment  for  not  more  than  three  §§  9',  10'. 

9  months.  i887, 44s,  §2. 

1895,  419,  §9.  141  Mass.  lOfi.  165  Mass.  40. 

H.  L.  214.  I  5.  160  Mass.  310.  166  Mass.  370. 

7  AUen,  304.  161  Mass.  281.  193  Mass.  383. 

1  Section  6.     WTioever,  during  or  within  twelve  hours  of  the  time  of  ^I'JtihliSla, 

2  holding  a  cattle  show,  military  muster  or  public  gathering,  within  one  ™'^^t«™-;  "'•'••' 

3  mile  of  the  place  thereof,  practices  or  engages  in  any  gambling  or  un-  ^'gg^' *j|j§ ^^'.j 

4  lawful  game,  shall  forfeit  not  more  than  twenty  dollars.    If  discovered  in  p.  .s.'go.  §  ii.' 

5  the  act,  he  may  be  arrested  without  a  warrant  by  any  sheriff",  deputy  ^^  ^'  ^"'  ^  ^" 

6  sheriff,  constable  or  any  officer  qualified  to  serve  criminal  process,  and 


2750 


CRIMES   AGAINST  PUBLIC   POLICY. 


[Ch.\p.  271. 


held  in  custody,  in  jail  or  otherwise,  for  not  more  than  twenty-four  hours,  7 
Sunday  and  legal  holidays  excepted,  until  a  complaint  may  be  made  8 
against  him  for  such  offence.  9 


Setting  up 
or  promoting 
lottery,  gift, 

1719-20,  8, 
l§  1,  2, 

1732-3.  14,  §  1. 
1785,  24, 
§§1.2. 
1800,  57,  §  1. 
1817,  191,  §  1. 
1822,  90. 
1825,  IM,  §  1. 
1833,  148,  I  1. 
R.  S.  132,  §  1. 
1856,  121,  §  1. 
G.  S.  167,  I  1. 
P.  S.  209,  §  1. 
1895,419,  §  13. 
R.  L.  214.  §  7. 

1918,  257, 
§457. 

1919,  5. 

1920,  2. 


Section  7.  Whoever  sets  up  or  promotes  a  lottery  for  money  or  1 
other  property  of  value,  or  by  way  of  lottery  disposes  of  any  property  2 
of  value,  or  under  the  pretext  of  a  sale,  gift  or  delivery  of  other  property  3 
or  of  any  right,  privilege  or  thing  whatever  disposes  of  or  offers  or  4 
attempts  to  dispose  of  any  property,  with  intent  to  make  the  disposal  5 
thereof  dependent  upon  or  connected  with  chance  by  lot,  dice,  num-  6 
bers,  game,  hazard  or  other  gambling  device,  whereby  such  chance  or  7 
device  is  made  an  additional  inducement  to  the  disposal  or  sale  of  said  8 
property,  and  whoeA'er  aids  either  by  printing  or  writing,  or  is  in  any  9 
way  concerned,  in  the  setting  up,  managing  or  drawing  of  such  lottery,  10 
or  in  such  disposal  or  offer  or  attempt  to  dispose  of  property  by  such  11 
chance  or  device,  shall  be  punished  by  a  fine  of  not  more  than  two  thou-  12 
sand  dollars  or  by  imprisonment  for  not  more  than  one  year.  13 


13  Allen,  534. 
97  Mass.  583. 
137  Mass.  250. 
146  Mass.  142. 


150  Mass.  322. 
159  Mass.  55. 
177  Mass.  345. 


184  Mass.  198. 
233  Mass.  154. 
3  Op.  A.  G.  582. 


Permitting 
lottery,  etc., 
to  be  set  up. 
etc.,  in  a 
house,  etc. 
1800,  57.  §  1. 
1817,  191,  §  1. 
1822,  90. 
1825,  184,  §  1. 
1833,  148,  §  1. 
R.  S.  132,  §  1. 
1856,  121,  §  1. 
G.  S.  167,  §  2. 
P.  S.  209,  §  2. 
1895,419,  §  13. 
R.  L.  214.  §S. 
2  Gray,  69. 
184  Mass.  198. 


Section  8.  \Mioever,  in  a  house,  shop  or  building  owned  or  occupied  1 
by  him  or  under  his  control,  knowingly  permits  the  setting  up,  managing  2 
or  drawing  of  such  lottery,  or  such  disposal  or  attempt  to  dispose  of  3 
property,  or  the  sale  of  a  lottery  ticket  or  share  of  a  ticket,  or  any  other  4 
^\Titing,  certificate,  bill,  token  or  other  device  purporting  or  intended  5 
to  entitle  the  holder,  bearer  or  any  other  person  to  a  prize  or  to  a  share  of  6 
or  interest  in  a  prize  to  be  drawn  in  a  lottery,  or  in  such  disposal  of  prop-  7 
erty,  and  whoever  knowingly  suffers  money  or  other  property  to  be  rafHed  8 
for  in  such  house,  shop  or  building,  or  to  be  won  there  by  throwing  or  9 
using  dice  or  by  any  other  game  of  chance,  shall  be  punished  by  a  fine  10 
of  not  more  than  two  thousand  dollars  or  by  imprisonment  for  not  more  11 
than  one  year.  12 


Selling  lottery 
ticket,  share, 
etc.,  or  aiding 
therein. 
1732-3.  14,  §  3. 
1785,  24,  §  3. 
1800,  57.  §  2. 
1817,  191,  §  1. 
1822.  90. 
1825,  184,  §  1. 
1833,  148,  §  1. 
R.  S.  132,  §  2. 
1856,  121,  §  1. 
G.  S.  167,  §  3. 
P.  S.  209,  §  3. 


Section  9.     \Mioever,  for  himself  or  for  another,  sells  or  offers  for  1 

sale  or  has  in  his  possession  with  intent  to  sell  or  offer  for  sale,  or  to  ex-  2 

change  or  negotiate,  or  aids  or  assists  in  the  selling,  exchanging,  negotiat-  3 

ing  or  disposing  of  a  ticket  in  such  lottery,  or  a  share  of  a  ticket,  or  any  4 

such  writing,  certificate,  bill,  token  or  other  device,  or  a  share  or  right  5 

in  such  disposal  or  offer,  as  is  mentioned  in  section  seven,  shall  be  punished  6 

by  a  fine  of  not  more  than  two  thousand  dollars  or  by  imprisonment  for  7 

not  more  than  one  year.  8 

1895,  419,  §  13.  R.  L.  214,  §  9.  2  Met.  329.  13  .Ulen,  534. 


Second 
conviction. 
1833,  148,  §  1. 
R.  S.  132,  §  3. 
1856,  121,  §  1. 
G.S.  167.  §  4. 
P.  S.  209,  §  4. 
R.  L.  214,  §  10. 


Section  10.     Whoever,  after  being  convicted  of  any  offence  men-  1 

tioned  in  the  three  preceding  sections,  commits  the  like  offence,  or  anj'  2 

other  of  the  offences  therein  mentioned,  shall,  in  addition  to  the  fine  3 

therein  provided,  be  punished  by  imprisonment  for  not  more  than  one  4 

^■ear.  5 


Advertising 
lottery  ticket. 
1732-3.  14,  §  2. 
1785,  24,  §  2. 
1800,  57.  §  1. 
1817,  191,  §  1. 
1822,  90. 


Section  11.     ^\'hoever.  himself  or  by  another,  advertises  a  lottery  1 

ticket  or  a  share  in  such  ticket  for  sale,  or  sets  up  or  exliibits,  or  devises  2 

or  makes  for  the  purpose  of  being  set  up  or  exliibited,  any  sign,  symbol  3 

or  emblematic  or  other  representation  of  a  lottery  or  the  drawing  thereof,  4 


Chap.  271.]  crimes  against  public  policy.  2751 

5  in  any  way  indicating  where  a  lottery  ticket  or  a  share  thereof  or  such  i82s,  i84.  §  i. 

6  writing,  certificate,  bill,  token  or  other  device  before  mentioned  may  be  isssi  ut]  §  2! 

7  obtained,  or  in  any  way  invites  or  entices,  or  attempts  to  invite  or  entice,  §;  1;  \f3'.  1 1'. 

8  any  other  person  to  piu-chase  or  receive  the  same,  shall  be  punished  by  fgg^^  fjg  Ws 

9  a  fine  of  not  more  than  two  thousand  dollars  or  by  imprisonment  for  ?- l-.^i^.  1 11. 

,  ^  ^  5  Pick.  41,  42. 

10  not  more  than  one  year. 

1  Section  12.     Whoever  makes  or  sells,  or  has  in  his  possession  with  Making  or 

2  intent  to  sell,  exchange  or  negotiate,  or  by  printing,  writing  or  other-  tn  aTcu'tious 

3  wise  assists  in  making  or  selling,  or  in  attempting  to  sell,  exchange  or  is"" us,  §  3. 

4  negotiate,  a  false  or  fictitious  lottery  ticket,  or  any  share  thereof,  or  any  §•  |-  \lf  1 1 

5  WTiting,  certificate,  bill,  token  or  other  device  before  mentioned,  or  any  Rf;"2°4\% 

6  ticket  or  share  thereof  in  a  fictitious  or  pretended  lottery,  knowing  the  13  Aiien,  534. 

7  same  to  be  false  or  fictitious,  or  receives  any  money  or  other  thing  of  value 

8  for  such  ticket  or  share  of  a  ticket,  writing,  certificate,  bill,  token  or 

9  other  device  purporting  that  the  owner,  bearer  or  holder  thereof  shall 

10  be  entitled  to  receive  any  prize,  or  share  of  a  prize,  or  other  thing  of  value, 

11  that  may  be  drawn  in  a  lottery,  knowing  the  same  to  be  false  or  fictitious, 

12  shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than 

13  three  years. 

1  Section  13.     Upon  the  trial  of  a  person  charged  with  any  of  the  Tickets,  etc, 

2  crimes  mentioned  in  the  preceding  section,  a  ticket  or  share  of  a  ticket,  pHmrfaclr^'^ 

3  or  other  writing  or  thing  before  mentioned,  which  the  defendant  has  sold  ^g'sl;  ^48^  §  3. 

4  or  ofi"ered  for  sale,  or  for  which  he  has  received  a  valuable  consideration,  JJ-  i-  J^a,  §  e. 

f^.  o.  111/,  §  7. 

5  shall  be  deemed  false,  spurious  or  fictitious,  unless  the  defendant  proves  p.  s.  209,  §  7. 

6  that  the  same  was  true  and  genuine,  duly  issued  by  the  authority  of  13  Aiien,  534.  ' 

7  some  legislature  within  the  United  States,  that  such  lottery  was  existing 

8  and  undrawn  and  that  such  ticket  or  share  thereof,  or  other  WTiting  or 

9  thing  before  mentioned,  was  issued  by  lawful  authority  and  is  binding 
10  upon  the  person  who  issued  the  same. 

1  Section  14.    Money  or  other  thing  of  value  dra'mi  as  a  prize  or  share  Prizes,  etc., 

2  thereof  in  a  lottery,  and  all  property  disposed  of  or  offered  to  be  disposed  mrl'igi,  §  2. 

3  of  by  chance  or  device  under  the  pretext  mentioned  in  section  seven,  by  r^'s.' 1 32.' 1 1.' 

4  an  inhabitant  of  or  a  resident  within  the  commonwealth,  and  all  money  g^s'iw'II' 

5  or  other  thing  of  value  received  by  such  person  by  reason  of  his  being  the  P-  s.  209,  §8. 

6  owner  or  holder  of  a  ticket  or  share  of  a  ticket  in  a  lottery  or  pretended 

7  lottery,  or  of  a  share  or  right  in  any  such  scheme  of  chance  or  such  device, 

8  contrary  to  this  chapter,  shall  be  forfeited,  and  may  be  recovered  by  an 

9  information  filed  or  by  an  action  for  money  had  and  received  brought  by 

10  the  attorney  general  or  a  district  attorney  in  the  name  and  on  behalf  of 

1 1  the  commonwealth. 

1  Section  15.     Whoever  aids,  either  by  printing  or  writing,  or  is  in  .hiding  in  set- 

2  any  way  concerned  in  setting  up,  promoting,  managing  or  drawing  a  litfeo?  °'^'"^° 

3  lottery  for  money,  set  up,  promoted,  managed  or  drawn  out  of  this  ^.'s.'ioi'ii.' 

4  commonwealth,  shall  be  punished  by  a  fine  of  not  more  than  two  thou-  js^s,  419,  §  1.3. 

5  sand  dollars  or  by  imprisonment  for  not  more  than  one  year. 


R.  L.  214, 


1  Section  16.     Whoever  sells,  for  himself  or  another,  or  offers  for  sale  Selling  ticket 

2  or  has  in  his  possession  with  intent  so  to  do  or  to  exchange  or  negotiate,  teryl'etc'."'' 


2752 


CRIMES   AGAINST   PUBLIC   POLICY. 


[CuAP.  271. 


1869,  112,  I  2. 
P.  S.  209,  §  10. 
1895,419,  §  13. 
E.  L.  214,  §  16. 


or  aids  or  assists  in  selling,  negotiating,  exchanging  or  disposing  of  a  3 

ticket,  or  a  share  of  a  ticket,  in  a  lottery  described  in  the  preceding  sec-  4 

tion,  shall  be  punished  by  a  fine  of  not  more  than  two  thousand  dollars  5 

or  by  imprisonment  for  not  more  than  one  year.  6 


Penalty  for 
buying  and 
selling  pools 
or  registering 
bets. 

1878,  165. 
P.  S.  99,  §  8. 
1885,  342,  §  1. 
1895,419,  §  13. 
R.  L.  214,  §  17. 
143  Mass.  177. 
146  Mass.  203. 
154  Mass.  12S, 
135. 

157  Mass.  455. 
160  Mass.  354. 
218  Mass.  281. 
226  Mass.  409. 


Section  17.  Whoever  keeps  a  building  or  room  or  any  part  thereof  1 
or  occupies  any  place  •nnth  apparatus,  books  or  any  device,  for  registering  2 
bets,  or  buying  or  selling  pools,  upon  the  result  of  a  trial  or  contest  of  skill,  3 
speed  or  endurance  of  man,  beast,  bird  or  machine,  or  upon  the  result  of  4 
a  game,  competition,  political  nomination,  appointment  or  election,  or  5 
whoever  is  present  in  such  place  engaged  in  such  business  or  employ-  6 
ment;  or,  being  such  keeper,  occupant  or  person  present,  as  aforesaid,  7 
registers  such  bets,  or  buys  or  sells  such  pools,  or  is  concerned  in  bu\ing  8 
or  selling  the  same;  or,  being  the  owner,  lessee  or  occupant  of  a  building  9 
or  room,  or  part  thereof,  or  private  grounds,  knowingly  permits  the  same  10 
to  be  used  or  occupied  for  any  such  purpose,  or  therein  keeps,  exliibits,  11 
uses  or  employs,  or  knowingly  permits  to  be  therein  kept,  exliibited,  12 
used  or  employed,  any  device  or  apparatus  for  registering  such  bets,  or  13 
for  buying  or  selling  such  pools,  or  whoever  becomes  the  custodian  or  14 
depositary  for  hire,  reward,  commission  or  compensation  in  any  man-  15 
ner,  of  any  pools,  money,  property  or  thing  of  value,  in  any  manner  16 
staked  or  bet  upon  such  result,  shall  be  punished  by  a  fine  of  not  more  17 
than  two  thousand  dollars  or  by  imprisonment  for  not  more  than  one  18 
year.  19 


teriM^and'  SECTION  18.     Whocvcr  kceps,  scts  up,  promotes  or  is  concerned  as     1 

WbSef  °  owner,  agent,  clerk  or  in  any  other  manner,  in  managing  a  policy  lottery     2 

1895'  419'  1 7  ^^  policy  shop,  or  "WTites,  prints,  sells,  transfers  or  delivers  a  ticket,  cer-  3 
R.  l!  2i4i  §  18.  tificate,  slip,  bill,  token  or  other  de\'ice,  purporting  or  designed  to  guar-  4 
antee  or  assure  to  a  person,  or  to  entitle  him  to  a  chance  of  drawing  or  5 
obtaining  a  prize  or  thing  of  value  in  a  lottery  or  in  the  game  or  de\'ice  6 
commonly  known  as  policy  lottery  or  policy,  whether  drawn  or  deter-  7 
mined,  or  remaining  to  be  drawn  or  determined,  or  who  receives  from  a  8 
person  any  money  or  other  thing  of  value  for  such  article  or  chance;  or  9 
for  himself  or  another  MTites,  prints,  sells,  transfers  or  delivers  or  has  10 
in  his  possession  for  the  purpose  of  sale,  transfer  or  delivery,  or  in  any  11 
way  aids  in  selling,  exchanging,  negotiating,  transferring  or  delivering  a  12 
chance  or  ticket  in  a  lottery,  or  in  the  game  or  device  commonly  known  13 
as  policy  lottery  or  policy,  whether  drawn  or  to  be  drawn,  or  any  such  14 
bill,  slip,  certificate,  token  or  other  device,  shall  be  punished  by  a  fine  of  15 
not  more  than  five  hundred  dollars  or  by  imprisonment  for  not  more  16 
than  one  vear.  17 


o^tickets^*""        Section  19.    The  printing,  writing,  advertising,  issuing  or  delivery  1 

evidence"^        of  auv  ticket,  paper,  document  or  other  article  or  material  representing  2 

1895'  419'  I  8     °^  purporting  to  represent  the  existence  of  or  any  chance  or  interest  in  any  3 

E.  L.  214,  §  19.  lottery,  policy  lottery  or  policy  game,  pool  or  pools,  registered  or  other  4 

bet  or  other  game  or  hazard,  whether  drawn  or  determined,  or  remaining  5 

to  be  drawn  or  determined,  or  the  receiving  of  money  or  other  thing  of  6 

value  for  such  article  or  chance,  shall  be  prima  facie  e\'idence  of  the  7 

existence,  location  and  d^a^\■ing  of  such  lottery,  policy  lottery  or  policy  8 

game,  and  of  the  act  or  event  upon  wliich  such  pool  or  pools,  bet,  game  9 

or  hazard  depends  or  may  depend,  and  of  the  unlawful  character  of  such  10 


Chap.  271.]  crimes  against  public  policy.  2753 

11  lottery,  policy  lottery,  pool,  bet,  game  or  hazard,  and  the  issuing  or 

12  delivery  of  such  ticket,  paper,  document  or  other  article  or  material 

13  shall  be  prima  facie  evidence  of  value  ^ecei^■ed  therefor  by  the  person, 

14  company  or  corporation  issuing  or  delivering  the  same,  or  aiding  or 

15  abetting  therein,  and  that  such  person,  company  or  corporation  is  con- 

16  cerned  in  keeping,  managing  or  promoting  such  lottery,  pool,  bet,  game 

17  or  hazard. 

1  Section  20.     All   lottery,   policy   or   pool   tickets,    slips  or   checks.  Lottery,  etc, 

2  memoranda  of  any  combination  or  other  bet,  manifold  or  other  policy  or  nuisances. 

3  pool  books  or  sheets,  are  hereby  declared  a  common  nuisance  and  the  primrf!i°de 

4  possession  thereof  unlawful;  and  the  possession  of  any  such  article,  or  igg'^j^^g  53 

5  of  any  other  implements,  apparatus  or  materials  of  any  other  form  of  PgAi"''*'  IIS' 

6  gaming,  shall  be  prima  facie  evidence  of  their  use,  by  the  person  having 

7  them  in  possession,  in  the  form  of  gaming  in  which  like  articles  are  com- 

8  monly  used.    Any  such  article  found  upon  the  person  of  one  lawfully 

9  arrested  for  violation  of  any  law  relative  to  lotteries,  policy  lotteries 

10  or  policy,  the  buying  or  selling  of  pools  or  registering  of  bets  or  other 

11  form  of  gaming  shall  be  competent  evidence  upon  the  trial  of  a  com- 

12  plaint  or  indictment  to  which  it  may  be  relevant.    If  a  person  so  arrested 

13  in  a  building  or  structure  or  part  thereof  conceals  or  attempts  to  conceal 

14  such  articles  upon  his  person  or  elsewhere,  the  possession  and  concealment 

15  or  attempt  at  concealment  thereof  shall  be  prima  facie  evidence  that 

16  the  place  in  which  the  same  occurs  is  kept,  maintained,  used  or  occu- 

17  pied  for  the  form  of  gaming  in  which  like  articles  are  commonly  used. 

1  Section  21.     In  a  prosecution  or  proceeding  relative  to  lotteries.  Prima  facie 

2  policy  lotteries  or  policy,  buying  and  selling  pools  or  registered  bets,  raJe^etc."^ 

3  any  words,  figures  or  characters,  written,  printed  or  exposed  upon  a  r.^l!  214!  1 21. 

4  blackboard,  placard  or  otherwise,  in  a  place  alleged  to  be  used  or  occupied  226  Mass.  409. 

5  for  such  business,  purporting  or  appearing  to  be  a  name  of  a  horse  or 

6  jockey,  or  a  description  of  or  reference  to  a  trial  or  contest  of  skill,  speed 

7  or  endurance  of  man,  beast,  bird  or  machine,  or  game,  competition, 

8  political  nomination,  appointment  or  election,  or  other  act  or  event,  or 

9  any  odds,  bet,  combination  bet  or  other  stake  or  wager,  or  any  code, 

10  cipher  or  substitute  therefor,  shall  be  prima  facie  evidence  of  the  exist- 

11  ence  of  the  race,  game,  contest  or  other  act  or  event  so  purporting  or 

12  appearing  to  be  referred  to,  and  that  such  place  is  kept  or  occupied  for 
13, gaming;  and  in  all  cases  the  same  may  be  proved  by  a  copy  or  by  oral 
14  description  thereof. 

1  Section  22.     Whoever  receives  a  letter,  package  or  parcel  for  de-  Penaityfor 

2  livery  to  or  transportation  from  a  person,  or  delivers  or  transports  the  onJt'tS^s,''etc. 

3  same  to  or  from  a  person,  having  reasonable  cause  to  believe  that  such  jj*''£'  *\f  1 1;, 

4  person  is  engaged  or  in  any  way  concerned  in  the  management  or  pro- 

5  motion  of  or  agency  for  a  lottery,  or  the  game  known  as  policy  lottery  or 

6  policy,  or  the  buying  or  selling  of  pools  or  registering  of  bets,  or  other 

7  form  of  gaming,  and  that  such  letter,  package  or  parcel  has  relation  to 

8  such  business,  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more 

9  than  five  hundred  dollars;  but  this  section  shall  not  apply  to  the  receipt, 

10  carriage  or  delivery  of  United  States  mail  matter  by  an  officer  or  em- 

11  ployee  thereof. 


2754 


CRIMES  AG.UNST   PUBLIC   POLICY. 


[CiLU'.   271. 


Common 
gaming  houses, 
etc,  to  be 
entered  and 
certain  persons 
arrested. 
1834,  172. 
R.  S.  50,  §  19. 
1857,  194,  §  4. 
G.  S.  85,  §  8. 
1869,  364.  §  1. 
P.  S.  99.  §  10. 
1883,  120. 
1887.  448,  §  2. 
1895,  419.  §  9. 
R.  L.  214,  §  23. 
11  Met.  79. 
141  Mass.  106. 

165  Mass.  40. 

166  Mass.  370. 


Section  23.  If  a  per.son  makes  oath  before  a  district  court  or  a  trial  1 
justice  that  he  suspects  or  has  probable  cause  to  suspect  that  a  house  or  2 
other  building,  room  or  place  is  used  as  and  for  a  common  gaming  house,  3 
for  gaming  for  money  or  other  property,  or  is  occupied,  used  or  kept  for  4 
promoting  a  lottery,  or  for  the  sale  of  lottery  tickets,  or  for  promoting  5 
the  game  known  as  policy  lottery  or  policy,  or  for  the  buying  or  selling  6 
of  pools  or  registering  of  bets  upon  any  race,  game,  contest,  act  or  event,  7 
and  that  persons  resort  thereto  for  any  such  purpose,  such  court  or  trial  8 
justice,  whether  the  names  of  the  persons  last  mentioned  are  known  to  the  9 
complainant  or  not,  shall,  if  satisfactory  evidence  is  presented,  issue  a  10 
warrant  commanding  the  sheriff  or  his  deputy  or  any  constable  or  police  11 
officer  to  enter  such  house,  building,  room  or  place,  and  to  arrest  the  12 
keepers  thereof,  all  persons  in  any  way  assisting  in  keeping  the  same,  13 
whether  as  janitor,  doorkeeper,  watchman  or  otherwise,  all  persons  who  14 
are  there  found  participating  in  any  form  of  gaming  and  all  persons  15 
present  whether  so  participating  or  not,  if  any  lottery,  policy  or  pool  16 
tickets,  slips,  checks,  manifold  books  or  sheets,  memoranda  of  any  bet,  17 
or  other  implements,  apparatus  or  materials  of  any  form  of  gaming  are  18 
found  in  said  place,  and  to  take  into  their  custody  all  the  implements,  19 
apparatus  or  materials  of  gaming,  as  aforesaid,  and  all  the  personal  20 
property,  furniture  and  fixtures  there  found,  and  to  keep  said  persons,  21 
implements,  apparatus  or  materials,  property,  furniture  and  fixtures  so  22 
that  they  may  be  forthcoming  before  some  court  or  magistrate  to  be  23 
dealt  with  according  to  law.  The  provisions  of  chapter  two  hundred  24 
and  seventy-six  relative  to  disposal  of  gaming  articles  seized  upon  search  25 
warrants  shall  apply  to  all  articles  and  property  seized  as  herein  pro-  26 
vided  for.  27 


fronrpeJmities        SECTION  24.     This  chapter  shall  not  authorize  the  arrest  or  convic-  1 

isgs'Tirs  9     ^''^'^  '^^  ^^^  owner  or  proprietor  of  a  race  track  or  trotting  course  for  the  2 

R.  l!  2w;  §  24.  reason  that  another  person  has  without  his  knowledge  or  consent  violated  3 

any  of  its  provisions  relative  to  the  buying  and  selling  of  pools  or  the  4 

registering  or  making  of  bets  or  to  any  offence  mentioned  in  the  preced-  5 

ing  section;    nor  the  arrest  or  conviction  of  a  person  for  being  present  6 

on  a  race  track  or  trotting  course  where  pools  are  sold  or  bets  registered  7 

or  made  on  trials  of  speed  or  endurance  between  horses  or  other  animals;  8 

but  this  exception  shall  not  apply  to  a  person  in  any  way  participating  or  9 

assisting  in  the  buying  or  selling  of  pools  or  registering  of  bets.  10 


Obstructions 
in  gaming 
houses. 
1887,  448,  5  1 
1892,  388,  I  1 
R.  L.  214,  §: 


Section  25.  If  a  captain  of  police  in  Boston  or  marshal  or  chief  of  1 
police  in  any  other  city  or  town  in  the  commonwealth  finds  that  access  2 
to  any  building,  apartment  or  place  which  he  has  reasonable  cause  to  3 
believe  is  resorted  to  for  the  purpose  of  unlawful  gaming  is  barred  by  4 
any  obstruction,  such  as  a  door,  window,  shutter,  screen,  bar  or  grat-  5 
ing  of  unusual  strength,  other  than  what  is  usual  in  ordinary  places  of  6 
business,  or  any  unnecessary  number  of  doors,  windows  or  obstructions,  7 
he  shall  order  the  same  removed  by  the  owner  or  agent  of  the  building  8 
where  such  obstruction  exists,  and  if  any  of  said  officers  cannot  find  9 
either  of  the  persons  mentioned,  so  as  to  make  personal  service,  said  10 
notice  shall  be  posted  upon  the  outside  of  the  apartments  and  on  the  11 
outside  of  said  building,  and  upon  the  neglect  to  remove  such  obstruc-  12 
tion  for  se\en  days  from  the  date  of  said  order  or  posting  of  said  notices,  13 
any  of  said  officers  shall  cause  such  obstruction  to  be  removed  from  such  14 


ClL\P.   271.]  CRIMES  AGAINST  PUBLIC   POLICY.  2755 

15  building,  and  the  expense  of  such  removal  shall  be  a  lien  on  said  building 

16  and  be  collected  by  the  officer  removing  such  obstruction,  in  the  manner 

17  in  wliich  a  mechanic's  lien  is  collected. 

1  Section  26.     If,  within  one  year  after  removal  of  said  obstruction,  Penalty  for 

2  the  premises  are  again  obstructed  as  above  defined,  the  captain  of  police  obstruction. 

3  or  marshal  or  chief  of  police  shall  have  the  same  power  of  removal  as  ^^l[  Hf  |  |g 

4  provided  in  the  preceding  section,  and  in  addition  the  owner  or  agent 

5  when  such  second  order  of  removal  is  given,  either  by  personal  service 

6  or  by  posting  on  the  building,  shall  be  punished  by  a  fine  of  not  less  than 

7  two  hundred  and  fifty  nor  more  than  five  hundred  dollars,  and  the  amount 

8  of  said  fine  shall  be  a  lien  upon  said  building  and  be  collected  in  like 

9  manner  as  provided  in  the  preceding  section.    And  for  every  subsequent 

10  obstruction  as  abo\'e  defined,  at  any  time  within  two  years  of  the  giving 

11  of  the  second  notice,  as  above  provided,  said  officers  shall  have  the  same 

12  powers  as  provided  in  the  preceding  section  for  removing  the  obstruc- 

13  tions,  and  the  owner  or  agent  at  the  time  such  third  or  subsequent  order 

14  of  remo\'al  is  given,  either  by  personal  service  or  by  posting  on  the  build- 

15  ing,  shall  be  punished  bj'  a  fine  of  not  less  than  five  hundred  nor  more 

16  than  one  thousand  dollars  or  may  be  punished  by  imprisonment  for  one 

17  year,  and  the  amount  of  said  fine  shall  be  a  lien  upon  the  said  building, 

18  and  shall  be  collected  in  like  manner  as  above  provided.    Obstructions 

19  as  above  defined,  erected  more  than  two  years  after  the  giving  of  the 

20  notice  of  the  third  ofi'ence,  shall  be  construed  to  be  a  first  offence  under 

21  this  section. 

1  Section  27.     Any  court  or  magistrate  having  criminal  jurisdiction  Judicial 

2  may  take  judicial  notice  of  the  general  methods  and  character  of  lotteries,  rouerle",  and 

3  policy  lotteries  or  the  game  called  policy,  pools  or  combination  bets,  and  evidence!^"' 

4  the  buying  and  selling  of  pools  and  registering  of  bets.    In  the  trial  of  a  ^^^'  |J^'  |  ^j 

5  complaint  or  indictment  to  which  it  may  be  relevant,  any  lottery,  policy 

6  or  pool  ticket,  certificate,  slip  or  check,  manifold  or  other  policy  or  pool 

7  book  or  sheet,  or  memorandum  of  any  pool  or  sale  of  pools,  or  of  a  bet 

8  or  odds,  or  combination  bet,  or  any  other  implement,  apparatus,  ma- 

9  terials  or  articles  of  a  character  commonly  emploj'ed  in  or  in  connection 

10  with  lotteries,  policy  lotteries  or  policy,  the  buying  or  selling  of  pools  or 

1 1  registering  of  bets,  or  other  form  of  gaming,  shall  be  prima  facie  evidence 

12  of  the  existence  and  unlawful  character  of  a  lottery,  policy  lottery  or 

13  game,  pool  or  pools,  bet,  game  or  hazard,  or  other  form  of  gaming  in 

14  which  like  articles  are  commonly  used,  and  that  such  article  has  relation 

15  thereto. 

1  Section  28.     No  plea  of  misnomer  shall  be  received  to  a  complaint  or  Piea  of  mis- 

2  indictment  for  violation  of  any  law  relative  to  lotteries,  policy  lotteries  ?e°cdved.''"' 

3  or  policy,  the  selling  of  pools  or  registering  of  bets,  or  any  form  of  gam-  ^^l[  IJ4;  1 2k. 

4  ing;  but  the  defendant  may  be  arraigned,  tried,  sentenced  and  punished  ^^^  ^^^- 1^®- 

5  under  any  name  by  which  he  is  complained  of  or  indicted.    No  such 

6  complaint  or  indictment  shall  be  abated,  quashed  or  held  insufficient 

7  by  reason  of  any  alleged  defect,  either  of  form  or  substance,  if  the  same 

8  is  sufficient  to  enable  the  defendant  to  understand  the  charge  and  to 

9  prepare  his  defence.     No  variance  between  such  complaint  or  indict- 

10  ment  and  the  evidence  shall  be  deemed  material,  unless  in  some  matter 

1 1  of  substance  essential  to  the  charge  under  the  rule  above  prescribed. 


2756 


CRIMES  AGAINST   PUBLIC   POLICY. 


[ClL\P.   271. 


Gift  enter- 

g rises  pro- 
ibited. 
1884,  277. 
1898,  576. 
R.  L.  214, 
165  Mass. 
178  Mass. 
190  Mass. 
208  Mass. 


§29. 
146. 
578. 
110. 
607. 


Section  29.  Whoever  sells,  exchanges  or  disposes  of  any  property,  1 
or  offers  or  attempts  so  to  do,  upon  a  representation,  advertisement,  2 
notice  or  inducement  that  anything  other  than  what  is  specifically  3 
stated  to  be  the  subject  of  the  sale  or  exchange  is  or  is  to  be  delivered  4 
or  received,  or  is  in  any  way  connected  with  or  is  a  part  of  the  transaction,  5 
or  whoever  gives  a  stamp,  coupon  or  other  device  which  entitles  a  pur-  6 
chaser  to  demand  or  receive  from  a  person  or  company  other  than  the  7 
merchant  dealing  in  the  goods  purchased  or  the  manufacturer  thereof,  8 
any  other  property  than  that  actually  sold  or  exchanged,  or  whoever  9 
delivers  by  any  person  or  company  other  than  the  merchant  dealing  in  10 
the  goods  purchased,  or  the  manufacturer  thereof,  goods,  wares  or  mer-  11 
chandise  upon  the  presentation  of  such  stamp,  coupon  or  other  device,  12 
shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  five  hundred  13 
dollars.  14 


Sale,  etc.,  of 
trading  stamps, 
etc.,  pro- 
hibited. 
1903,  386. 


Racing,  etc., 
for  wager,  etc. 
1846,  200. 
G.S.  167,  §  9. 
1865,  67. 
P.  S.  209.  §  11. 
1900,  409. 
R.  L.  214,  §  30. 
6  Gray.  505. 
102  Mass.  401. 
195  Mass.  116. 


Horses  driven 
for  a  premium 
or  purse.     Dis- 
guise. 
1892,  167. 
R.  L.  214,  5  31. 


Section  30.     ^Vhoever,  in  connection  with  the  sale  of  any  article  or  1 

any  merchandise  whatsoever,  sells,  gives  or  delivers  any  trading  stamps,  2 

checks,  coupons  or  similar  devices  to  be  exchanged  for,  or  to  be  redeemed  3 

by  the  giving  of,  any  indefinite  or  undescribed  article,  the  nature  and  4 

value  of  which  are  not  stated,  or  to  be  exchanged  for,  or  to  be  redeemed  5 

by  the  giving  of,  any  article  not  distinctly  bargained  for  at  the  time  when  6 

such  trading  stamps  or  other  devices  as  aforesaid  were  sold,  given  or  7 

delivered,  shall  be  punished  by  a  fine  of  not  less  than  ten  nor  more  than  8 

fifty  dollars.  9 

Section  31.     Wlioever,  except  in  trials  of  speed  of  horses  for  premiums  1 

offered  by  legally  constituted  agricultural  societies,  or  by  corporations  au-  2 

thorized  thereto  by  section  fourteen  of  chapter  one  hundred  and  eighty,  3 

engages  in  racing,  running,  trotting  or  pacing  a  horse  or  other  animal  4 

of  the  horse  kind  for  a  bet,  wager  of  money  or  other  thing  of  value  or  5 

a  purse  or  stake  made  within  the  commonwealth,  or  whoever  aids  or  6 

abets  therein,  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  7 

dollars  or  by  imprisonment  for  not  more  than  one  year,  or  both.  8 

Section  32.     Whoever,  for  the  purpose  of  competing  for  a  purse  or  1 

premiiun  offered  by  an  agricultural  society,  or  by  a  person  or  associa-  2 

tion  in  the  commonwealth,  knowingly  and  designedly  enters  or  drives  a  3 

horse  that  is  painted  or  disguised,  or  is  a  different  horse  from  the  one  4 

that  purports  to  be  entered  or  driven,  or  knowingly  and  designedly,  for  5 

the  purpose  of  competing  for  a  premium  or  purse,  enters  or  drives  a  6 

horse  in  a  class  to  which  it  does  not  belong,  shall  be  punished  by  a  fine  7 

of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  not  more  8 

than  six  months.  9 


Location  and 
regulation  of 
trotting  parks. 
1856,  102,  §  1. 
G.  S.  167,  §  10. 
1864,  63. 
P.  S.  209.  §  12. 
R.  L.  214,  §  32. 


Section  33.     No  land  within  a  town  shall  be  laid  out  or  used  as  a  1 

race  ground  or  trotting  park  without  the  previous  consent  of  and  location  2 

by  the  mayor  and  aUlermen  or  selectmen,  who  may  regulate  and  alter  3 

the  terms  and  conditions  under  which  the  same  shall  be  laid  out,  used  or  4 

continued  in  use  and  may  discontinue  the  same  when  in  their  judgment  5 

the  public  good  so  requires;   and  no  land  shall  be  used  for  any  of  the  6 

purposes  declared  unlawful  in  section  thirty-one.  7 

ground'deemld       SECTION  34.     Every  racc  ground  or  trotting  park  establish etl,  laid  1 

Penalty!'  out,  used  or  coiitiuued  in  use  contrary  to  this  chapter  is  declared  a  com-  2 


Chap  271.]  crimes  against  public  policy.  2757 

3  mon  nuisance  and  may  be  abated  as  such;  and  all  persons  owning,  keep-  isse,  102, 

4  ing,  using  or  permitting  to  be  used  such  race  ground  or  trotting  park,  o.  I'.i'e?,  §  n. 

5  or  aiding  or  abetting  therein,  shall  be  punished  by  a  fine  of  not  more  r.l.Ih'.Vss. 

6  than  one  thousand  dollars  or  by  imprisonment  for  not  more  than  one 

7  year,  or  both. 

1  Section  35.     The  following  words  and  phrases  used  in  this  and  the  certain  words 

2  tlu-ee  following  sections  of  this  chapter  shall,  unless  a  different  meaning  defined'^ar^ 

3  is  required  by  the  context,  have  the  following  meanings:  bS?ketsh°ops. 

4  "Person",  an    individual,  partnership,    corporation    or    association,  1907,414,  §i. 

5  whether  acting  in  his  or  their  own  right  or  as  the  officer,  agent,  serv- 

6  ant,  correspondent  or  representative  of  another. 

7  "Contract",  any  agreement,  trade  or  transaction. 

8  "Securities",  all  exidences  of  debt  or  property  and  options  for  the 

9  purchase  and  sale  thereof,  shares  in  any  corporation,  joint  stock  com- 

10  pany  or  association,  bonds,  coupons,  scrip,  rights,  choses  in  action  and 

11  other  evidences  of  debt  or  property  and  options  for  the  purchase  or  sale 

12  thereof. 

13  "Commodities",  anything  movable  that  is  bought  and  sold. 

14  "Bucket  shop",  any  room,  office,  store,  building  or  other  place  where 

15  any  contract  prohibited  by  the  following  section  is  made  or  offered  to  be 

16  made. 

17  "Keeper",  any  person  owning,  keeping,  managing,  operating  or  pro- 

18  moting  a  bucket  shop,  or  assisting  to  keep,  manage,  operate  or  promote 

19  a  bucket  shop. 

20  "Bucketing"  or  "Bucket-shopping", 

21  (a)  The  making  of,  or  offering  to  make,  any  contract  respecting  the 

22  purchase  or  sale,  either  upon  credit  or  upon  margin,  of  any  securities 

23  or  commodities,  wl»erein  both  parties  thereto  intend,  or  such  keeper 

24  intends,  that  such  contract  shall  be,  or  may  be,  terminated,  closed  or 

25  settled  according  to,  or  upon  the  basis  of,  the  public  market  quotations 

26  of  prices  made  on  any  board  of  trade  or  exchange  upon  which  said  securi- 

27  ties  or  commodities  are  dealt  in,  and  without  a  bona  fide  purchase  or  sale 

28  of  the  same;  or 

29  (6)  The  making  of,  or  offering  to  make,  any  contract  respecting  the 

30  purchase  or  sale,  either  upon  credit  or  upon  margin,  of  any  securities  or 

31  commodities,  wherein  both  parties  intend,  or  such  keeper  intends,  that 

32  such  contract  shall  be,  or  may  be,  deemed  terminated,  closed  or  settled, 

33  when  such  public  market  quotations  of  prices  for  the  securities  or  com- 

34  modifies  named  in  such  contract  shall  reach  a  certain  figure  without  a 

35  bona  fide  purchase  or  sale  of  the  same;  or 

36  (c)  The  making  of,  or  offering  to  make,  any  contract  respecting  the 

37  purchase  or  sale,  either  upon  credit  or  upon  margin,  of  any  securities  or 

38  commodities,  wherein  both  parties  do  not  intend,  or  such  keeper  does  not 

39  intend,  the  actual  or  bona  fiile  receipt  or  delivery  of  such  securities  or 

40  commodities,  but  do  intend,  or  such  keeper  does  intend,  a  settlement  of 

41  such  contract  based  upon  the  differences  in  such  public  market  quotations 

42  of  prices  at  which  said  securities  or  commodities  are,  or  are  asserted  to  be, 

43  bought  and  sold. 

1  Section  36.     Whoever  makes,  or  offers  to  make,  any  contract  of  Penalty  for 

2  bucketing  or  bucket-shopping,  or  who  is  the  keeper  of  any  bucket  shop,  buctefshop, 

3  shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars  or  thm'todts-' 


2758 


CRIMES   AGAINST   PUBLIC    POLICY. 


[CH.A.P.    271. 


solve  such 
corporation. 
1907,  414,  §  2. 


by  imprisonment  for  not  more  than  one  year.  ^Vhoeve^  shall  be  con-  4 
victed  of  a  second  offence  shall  be  punished  by  imprisonment  for  not  5 
more  than  five  years.  The  continuing  of  the  keeping  of  a  bucket  shop,  6 
by  any  person,  after  the  first  conviction  therefor,  shall  be  deemed  a  7 
second  offence  hereunder.  If  a  domestic  corporation  shall  be  con\-icted  8 
of  a  second  offence,  the  supreme  judicial  court  may,  upon  an  informa-  9 
tion  in  equity  in  the  name  of  the  attorney  general,  at  the  relation  of  10 
the  commissioner  of  corporations  and  ta.xation,  dissolve  the  corporation;  11 
and  if  a  foreign  corporation  shall  be  convicted  of  a  second  offence,  the  12 
supreme  judicial  court  may,  in  the  same  manner,  restrain  it  from  doing  13 
business  in  this  commonwealth.  14 


Penalty  for 
communicat- 
ing, etc.,  to 
niake  pro- 
hibited con- 
tracts. 
1907,414,  §3. 


Section  37.     Wlioever  shall  communicate,  receive,  exliibit  or  display  1 

in  any  manner  any  statement  of  quotations  of  prices  of  any  securities  or  2 

commodities  with  an  intent  to  make,  or  offer  to  make,  or  to  aid  in  making,  3 

or  offering  to  make,  any  contract  prohibited  by  the  preceding  section  4 

shall  be  punished  as  provided  therein.  5 


Written 
statement  to 
be  furnished 
in  certain 
cases. 
1907,414.  §  4. 


Section  38.     Everj'  person  shall  furnish,  upon  demand,  to  any  cus-  1 

tomer  or  principal  for  whom  such  person  has  executed  any  order  for  2 

the  actual  piu-chase  or  sale  of  any  securities  or  commodities,  either  for  3 

immediate  or  future  delivery,  a  written  statement  containing  the  names  4 

of  the  persons  from  whom  such  property  was  bought,  or  to  whom  it  has  5 

been  sold,  as  the  fact  may  be,  the  time  when,  place  where  and  the  price  6 

at  which  the  same  was  either  bought  or  sold;  and  if  such  person  refuses  7 

or  neglects  to  furnish  such  statement  within  twenty-four  hours  after  8 

such  demand,  such  refusal  or  neglect  shall  be  prima  facie  evidence  that  9 

such  purchase  or  sale  was  bucketing  or  bucket-shopping.  10 


Illegal 
gratuity, 
etc.,  and 
penalty. 
1904,  343. 
1909,  514, 
§§  28,  29, 
1912,  495. 


Section  39.  ^Mioever  corruptly  gives,  offers  or  promises  to  an  agent,  1 
employee  or  servant  any  gift  or  gratuity  whatever,  with  intent  to  in-  2 
fluence  his  action  in  relation  to  the  business  of  his  principal,  employer  3 
145.  or  master;  or  an  agent,  employee  or  servant  who  corruptly  requests  or  4 
accepts  a  gift  or  gratuity  or  a  promise  to  make  a  gift  or  to  do  an  act  5 
beneficial  to  himself,  under  an  agreement  or  with  an  understanding  that  6 
he  shall  act  in  any  particular  manner  in  relation  to  the  business  of  his  7 
principal,  employer  or  master;  or  an  agent,  employee  or  servant  who,  8 
being  authorized  to  procure  materials,  supplies  or  other  articles  either  9 
by  purchase  or  contract  for  his  principal,  employer  or  master,  or  to  10 
employ  service  or  labor  for  his  principal,  employer  or  master,  receives  11 
directly  or  indirectly,  for  himself  or  for  another,  a  commission,  discount  12 
or  bonus  from  the  person  who  makes  such  sale  or  contract,  or  furnishes  13 
such  materials,  supplies  or  other  articles,  or  from  a  person  who  renders  14 
such  service  or  labor;  and  any  person  who  gives  or  offers  such  an  agent,  15 
employee  or  servant  such  commission,  discount  or  bonus,  shall  be  punished  16 
by  a  fine  of  not  less  than  ten  nor  more  than  five  hundred  dollars  or  by  17 
such  fine  and  by  imprisonment  for  not  more  than  one  year;  except  that  18 
if  the  person  who  commits  the  said  offence  acts  as  agent  or  officer  of  any  19 
person,  to  employ  persons  as  clerks,  laborers  or  otherwise,  the  offence  20 
shall  be  punished  by  a  fine  of  not  less  than  twenty-five  nor  more  than  21 
five  hundred  dollars  or  by  imprisonment  in  the  state  prison  for  not  more  22 
than  three  years.  The  district  attorneys  in  their  respective  districts  23 
shall  prosecute  all  violations  of  this  section.    No  person  shall  be  excused  24 


CH-^P.   271.]  CREVIES  AGAINST   PUBLIC  POLICY.  2759 

25  from  attending,  testifying  or  producing  books,  papers,  contracts,  agree- 

26  ments  and  documents  before  any  court  or  in  obedience  to  the  subpcena 

27  of  any  court  having  jurisdiction  of  the  offence  described  herein  on  the 

28  ground  or  for  the  reason  that  the  testimony  or  evidence,  documentary 

29  or  otherwise,  required  of  him  may  tend  to  criminate  him  or  subject  him 

30  to  a  penalty  or  forfeiture.    But  no  person  shall  be  liable  to  any  suit  or 

31  prosecution,  civil  or  criminal,  for  or  on  account  of  any  transaction,  matter 

32  or  thing  concerning  which  he  may  testify  or  produce  evidence,  documen- 

33  tary  or  otherwise,  before  said  court  or  in  obedience  to  its  subpoena  or  in 

34  any  such  case  or  proceeding. 

1  Section  40.     No  railroad,   street  railway,   electric  light,   gas,   tele-  Employment. 

2  graph,  teleplione,  water  or  steamboat  company  shall  appoint,  promote,  by  pubfic"  '^'°" 

3  reinstate,  suspend  or  discharge  any  person  employed  or  seeking  em-  poVa'tionr" 

4  ployment  by  any  such  company  at  the  request  of  the  governor,  lieu-  i|o'3"32o' 

5  tenant  governor,  or  any  member  or  member  elect  of  the  council  or  of  fl^g' gj^  .js 

6  the  general  court,  or  candidate  therefor,  justice  of  the  supreme  judicial  loio',  os, '§  2. 

7  court,  justice  of  the  superior  court,  judge  of  probate,  judge  of  the  land 

8  court,  justice  of  a  district  court,  district  attorney,  member  or  member 

9  elect  of  a  board  of  county  commissioners,  or  candidate  for  county  com- 

10  missioner,  mayor  or  maj'or  elect  of  a  city,  or  candidate  therefor,  mem- 

11  ber  or  member  elect  of  a  board  of  aldermen,  or  selectmen,  or  city  council, 

12  or  any  executi\'e,  administrati\-e  or  judicial  officer,  clerk  or  employee 

13  of  any  branch  of  the  government  of  the  commonwealth  or  of  any  county, 

14  city  or  town;   nor  shall  any  such  public  officer  or  body,  or  any  mem- 

15  ber  or  member  elect  thereof  or  candidate  therefor,  directly  or  indirectly 

16  advocate,  oppose,  or  other\\ise  interfere  in,  or  make  any  request,  recom- 

17  mendation,  endorsement,  requirement  or  certificate  relative  to,  and  the 

18  same,  if  made,  shall  not  be  required  as  a  condition  precedent  to,  or  be  in 

19  any  way  regarded  or  permitted  to  influence  or  control,  the  appointment, 

20  promotion,  reinstatement  or  retention  of  any  person  employed  or  seeking 

21  emplo^anent  by  any  such  corporation,  and  no  such  person  shall  solicit, 

22  obtain,  exliibit,  or  otherwise  make  use  of  any  such  official  request,  recom- 

23  mendation,  certificate  or  endorsement  in  connection  with  any  existing 

24  or  desired  emplojTuent  by  a  public  ser\ice  corporation.    Any  person  or 

25  corporation  violating  any  pro\'ision  of  tliis  section  shall  be  punished  by 

26  a  fine  of  not  less  than  fifty  nor  more  than  one  hundred  dollars.' 

1  Section  41.     The  offices  of  probation  officer,  notary  public,  justice  Cenain  offices 

2  of  the  peace,  prison  officer,  agent  of  the  commissioner  of  correction  and  Se'^preceding' 

3  agent  of  the  department  of  public  welfare  shall  not  be  considered  public  igos^soo,  §  2. 

4  oifices  within  the  meaning  of  the  preceding  section.  isos,  228. 

1909,  514.  §§  26,  145.  1016,  241,  §1. 

I'JIO,  03,  §  2.  1919,  350,  §§  S2,  83,  87. 

1  Section  42.     Whoever  bets  or  wagers  or  sells  pools  on  any  boxing  Bettine,  etc., 

2  or  sparring  match  or  exliibition  shall  be  punished  by  imprisonment  for  match,  etc. 

3  not  less  than  tliree  months  or  by  a  fine  of  not  less  than  fifty  dollars,  or  ^°"°'  ^^ 

4  both. 

/ 
REFERENCES. 

Penalty  for  pledging,  etc.,  or  tran.sferring  pensions,  Chap.  32,  §  92. 
Abatement  of  gambling  booths,  etc.,  near  public  gatherings,  Chap.  139,  §  IS. 


2760 


CRIMES  AGAINST   CH.\STITT,   ETC.,   AXD  GOOD   ORDER.      [Ch.1P.   272. 


CHAPTER    272. 

CRIMES    AGAINST    CHASTITY,    MORALITY,    DECENCY    AND    GOOD 

ORDER. 


Sect. 

1.  Abduction    of    an    unmarried    female 

under   sixteen    for   the   purpose  of 
marriage. 

2.  Abduction  of  women  or  girls,  etc. 

3.  Administering  drug. 

4.  Enticing  to  unlawful  intercourse. 

5.  Penalty  for  carnal  knowledge  of  idiot, 

etc. 

6.  Penalty  on  owner  of  premises,  etc. 

7.  Penalty  for  deriving  support  from  an 

inmate  of  a  house  of  ill  fame,  etc. 

8.  Penalty  for  soliciting,  etc. 

9.  Court  may  authorize  entry  of  house, 

etc. 

10.  Arrest  without  warrant. 

11.  Evidence  and  limitation. 

12.  Penalty   for   sending   a    female    to    a 

house  of  ill  fame,  etc. 

13.  Detaining  a  female  in  house  of  ill  fame. 

14.  Adultery. 

15.  Polygamy. 

16.  Lasci\'ious  cohabitation  and  lewdness. 

17.  Incest. 

18.  Fornication. 

19.  Unlawful  attempt,  etc.,  to  procure  mis- 

carriage. 

20.  Penalty  for  advertising,  etc.,  notice, 

etc.,  of  means  to  procure  abortion. 

21.  Other  offences  against  decency. 

22.  Concealment  by  mother  of  death  of 

bastard. 

23.  Joinder  of  murder  and  concealment. 

24.  Keeping  house  of  ill  fame. 

25.  Use  of  certain  enclosures  in   restau- 

rants, etc.,  prohibited. 

26.  Penalty  for  resorting  to  cafe,  etc.,  for 

immoral  purposes. 

27.  Copy  of  record  of  conviction   to   be 

sent  to  licensing  officer,  etc. 

28.  Penalty  for  possession  or  sale,  etc.,  of 

obscene  literature. 

29.  Dissemination  by  advertisement,  etc., 

of   information    concerning   certain 
diseases  prohibited. 

30.  Dissemination  of  criminal  literature. 

31.  Inmioral  entertainments. 

32.  Penalty  for  giving,  etc.,  immoral  en- 

tertainments. 

33.  Exhibition  of  deformities. 

34.  Sodomy  and  buggery. 

35.  Unnatural  and  lascivious  acts. 
30.  Blasphemy. 

37.  Profane  cursing  and  swearing. 

38.  Disturbing  religious  worship. 

39.  Peddling,    gaming,    etc.,    near    camp 

meeting. 


Sect. 

40.  Disturbance  of  school  or  public  meet- 

ing. 

41.  Disturbance  of  public  libraries. 

42.  Disturbance  of  funeral. 

43.  Disorderly  conduct  in  public  convey- 

ances. 

44.  Arrest  for  drunkenness. 

45.  Persons  arrested  for  drunkenness  may 

be  released  in  certain  cases,  etc. 

46.  Persons  arrested  for  drunkenness  to 

be  informed  of  their  right  to  make 
statement,  etc. 

47.  Record  of  persons  released. 

48.  Penalties  for  drunkenness. 

49.  Duties  of  probation  officers. 

50.  Records  open  to  inspection. 

51.  Opium  resorts. 

52.  Search  of  suspected  opium  resorts. 

53.  Rogues,  vagabonds,  etc. 

54.  Arrest  of  disorderly  person  in  streets, 

highways,  etc. 

55.  Master  of  workhouse,  etc.,  to  receive 

persons  conmiitted. 

56.  Repetition  of  offence  a  breach  of  recog- 

nizance. 

57.  Discharge    of    defendant  on  recogni- 

zance. 
5S.  Begging  by  children. 

59.  Arrest  without  a  warrant  for  viola- 

tions of  ordinances,  etc. 

60.  Certain  persons  may  be  arrested  and 

detained  for  the  purpose  of  ascer- 
taining their  identity,  etc. 

61.  Conviction  after  discharge  on  former 

con\-iction. 

62.  Nightwalking.     Third  conriction. 

63.  Tramps. 

64.  Punishment  of  tramps. 

65.  Arrest  of  tramps. 

66.  Vagrants. 

67.  Arrest  of  vagrants. 

68.  Certain  persons  to  be  deemed  vaga- 

bonds. 

69.  Arrest  of  vagabonds. 

70.  Attachment  of  dead  body. 

71.  Violation  of  sepulture. 

72.  BujTng  or  selling  dead  body. 

73.  Injuring  or  defacing  tombs,  etc. 

74.  Desecration  of  burial  ground. 

75.  Removal  of  flowers,  etc.,  from  grave. 

76.  Making    road,    etc.,    through    burial 

ground. 

77.  Cruelty  to  animals. 

78.  Buying,  selling,  etc.,  leading,  driving, 

etc.,  disabled  horses.     Penalty. 

79.  Corporations  liable. 


.]      CRIMES   AGAINST   CH.\STI'ri',    ETC.,    AND    GOOD    ORDER. 


2761 


Sect. 

80.  Mutilation  of  horses. 

81.  Rest  for  animals  transported. 

82.  Arrest  for  cruelty  to  animals. 

83.  Search  warrant. 

84.  Officers  to  prosecute.     Disposition  of 

fines. 

85.  Same  subject. 

86.  Stabling  horse,  etc.,  above  first  floor, 

except,  etc. 

87.  Pigeon  shooting,  etc. 

88.  Search    warrant    for    fighting     birds, 

etc. 

89.  Entry  without  a  warrant,  etc. 

90.  Persons  arrested  to  be  taken  before 

court,  etc. 


Sect. 

91.  Judgment  of  forfeiture,  etc.    Proceed- 

ings thereon. 

92.  Appeal. 

93.  Expenses  of  care,  etc.,  of  birds,  etc. 

94.  Penalty  on  owner,  etc. 

95.  Penalty  for  being  present  at  exhibi- 

tion, etc. 
False  notice  of  birth,  etc. 
Costumed  debt  collectors. 
Color  or  race  discrimination. 
Eavesdropping. 
Accessory  to  same. 

101.  Prima  facie  evidence. 

102.  To  whom  sections  99  to  101  not  ap- 

plicable. 


96. 
97 


99. 
100. 


1  Section  1.    Wlioever  fraudulently  and  deceitfully  entices  or  takes  Abduction  of 

2  away  an  unmarried  female  under  sixteen  from  her  father's  house  or  else-  tana"e"under 

3  where,  without  the  consent  of  the  parent  or  guardian,  if  any,  under  purpose  of*  ° 

4  whose  care  and  custody  she  is  livint;,  for  the  purpose  of  effecting  a  clandes-  ^^52' Im. 

5  tine  marriage  of  such  female  without  such  consent,  shall  be  punished  by  pf^of'li' 

6  imprisonment  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  R-  l.  212,  §  1. 

7  one  thousand  dollars,  or  both.  7  Gray,  479.  152  Mass.  1. 

1  Section  2.     Whoever  fraudulently  and  deceitfully  entices  or  takes  Abduction  of 

2  away  a  woman  or  girl  from  her  father's  house  or  elsewhere,  for  the  pur-  etc""*"  °'^  ^"  ^' 

3  pose  of  prostitution  or  for  the  purpose  of  unlawful  sexual  intercourse,  a^l.' fef,' 1 2.' 

4  and  whoever  aids  and  assists  in  such  abduction  for  such  purpose,  shall  ^gs^gl^g^l^i', 

5  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  three  J^gg,  444. 1 1. 

6  years  or  in  jail  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  isio.  424!  §  1. 

7  one  thousand  dollars,  or  by  both  such  fine  and  imprisonment  in  jail.         131  Mass.  224. 

211  Mass.  50. 

1  Section  3.     Whoever  applies,  administers  to  or  causes  to  be  taken  Administering 

2  by  a  woman  or  girl  any  drug,  matter  or  thing  with  intent  to  stupefy  or  igsi;  329,  §  2. 

3  overpower  her  so  as  thereby  to  enable  any  person  to  have  unlawful  sexual  fgjg-  35!;  ^  ^' 

4  intercourse  with  her  shall  be  punished  by  imprisonment  in  the  state  fg^'Ji'-g 

5  prison  for  not  more  than  three  years  or  in  jail  or  the  house  of  correction  1926, 2. 

6  for  not  more  than  two  and  one  half  years  or  by  a  fine  of  not  more  than  one 

7  thousand  dollars,  or  by  both  such  fine  and  imprisonment  in  jail  or  the 

8  house  of  correction. 


1  Section  4.     Whoever  induces  any  person  under  eighteen  of  chaste  life  Enticing  to 

2  to  have  unlawful  sexual  intercourse  shall  be  punished  as  provided  in  the  te"rcTur3e.'°' 

3  preceding  section. 


1886,  329,  §  3. 


1898,  444,  §  2. 


R.  L.  212,  §  4. 


1  Section  5.     Wlioever  has  unlawful  sexual  intercourse  with  a  female  Penalty  for 

2  who  is  feeble  minded,  an  idiot  or  imbecile,  under  circumstances  which  edge'^of  iS," 

3  do  not  constitute  rape,  shall,  if  he  had  reasonable  cause  to  believe  that  ^sse,  329,  §  4. 

4  she  was  feeble  minded,  an  idiot  or  imbecile,  be  punished  as  provided  in  fg^_  Hf  ^  ^• 

5  section  three. 


1  Section  6.     Whoever,  being  the  owner  of  a  place  or  having  or  assist-  Penalty  on 

2  ing  in  the  management  or  control  thereof,  induces  or  knowingly  suffers  a  premises,  etc 


2762 


CRIMES   AGAINST   CHASTITY,   ETC.,   AND   GOOD   ORDER.      [CfiLiP.   272. 


R^t. 212!  I  u!    female  to  resort  to  or  be  in  or  upon  such  place,  for  the  purpose  of  unlaw-    .3 

1910. 424,  §  2.    fully  having  sexual  intercourse,  shall  be  punished  as  provided  in  section     4 

three.  5 


Penalty  for 
deriving  sup- 
port from  an 
inmate  of  a 
bouse  of  ill 
fame,  etc. 
1910,  424,  §  5. 
1914.  621. 
212  Mass.  253. 


Section  7.     Wlioever,  knowing  a  female  to  be  a  prostitute,  shall  live  1 

or  derive  support  or  maintenance,  in  whole  or  in  part,  from  the  earnings  2 

or  proceeds  of  her  prostitution,  from  moneys  loaned,  advanced  to  or  3 

charged  against  her  by  any  keeper  or  manager  or  inmate  of  a  house  4 

or  other  place  where  prostitution  is  practiced  or  allowed,  or  shall  share  5 

in  such  earnings,  proceeds  or  moneys,  shall  be  punished  by  imprisonment  6 

in  the  state  prison  for  not  more  than  three  years  or  in  the  house  of  correc-  7 

tion  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  one  thou-  8 

sand  dollars,  or  both.  9 


Penalty  for 
soliciting,  etc. 
1910,  424,  §  6. 


Section  8.     Whoever  shall  solicit  or  receive  compensation  for  solicit-  1 

ing  for  a  prostitute  shall  be  punished  by  imprisonment  in  the  house  of  2 

correction  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  five  3 

hundred  dollars,  or  both.  4 


Court  may 
authorize  entry 
of  house,  etc. 
1910,  424,  §  7. 


Section  9.  If  a  person  makes  oath  before  a  district  court  or  trial  1 
justice  that  he  has  probable  cause  to  suspect  that  a  house,  building,  2 
room  or  place  is  kept  or  resorted  to  for  prostitution  and  that  a  certain  3 
person  owning,  or  having  or  assisting  in  the  management  or  control  of  4 
such  house,  building,  room  or  place  knowingly  suffers  a  certain  female  5 
to  be  in  or  upon  such  place  for  the  purpose  of  unlawfully  having  sexual  6 
intercoiu-se,  said  court  or  trial  justice  shall,  if  satisfied  that  there  is  7 
probable  cause  therefor,  issue  a  warrant  commanding  the  sheriff  or  his  8 
deputy,  or  any  constable  or  police  officer,  to  enter  such  house,  buOding,  9 
room  or  place  and  search  for  such  person,  and  take  into  custody  such  10 
person  and  such  female.  Said  person  shall  be  detained  for  not  more  than  11 
twenty-four  hours  until  complaint  may  be  made  against  him,  and  said  12 
female  for  a  reasonable  time  until  she  may  be  brought  before  said  court  13 
or  trial  justice  to  be  recognized  with  or  without  sureties  at  the  discretion  14 
of  said  court  or  trial  justice  to  appear  as  witnesses  before  the  next  or  15 
any  succeeding  sitting  of  said  court  or  trial  justice.  This  section  shall  16 
be  in  addition  to  and  not  in  derogation  of  the  common  law.  17 


Arrest  without 
warrant. 
1910,  424,  §  8. 


Section  10.  Nothing  in  the  preceding  section  shall  prevent  the  arrest 
and  detention  without  a  warrant  of  any  person  who,  the  officer  serving 
said  process  may  have  reasonable  cause  to  believe,  is  violating  any  pro- 
vision of  this  chapter,  or  is  keeping  a  house,  room  or  place  resorted  to  for 
prostitution  or  lewdness,  and  said  officer  may  upon  such  search  arrest 
without  a  w-arrant  any  such  person,  and  detain  him  until  complaint  may 
be  made  against  him. 


Evidence  and 

limitation. 

1886,  329, 

§§6,7. 

R.  L.  212.  §  7. 


Section  11.  A  person  shall  not  be  convicted  under  sections  two  to 
six,  inclusive,  upon  the  evidence  of  one  witness  only,  unless  his  testimony 
is  corroborated  in  a  material  particular,  and  prosecution  for  a  violation 
of  any  of  said  sections  shall  not  be  commenced  more  than  one  year  after 
the  commission  of  the  crime. 


Penalty  for 
sending  a 
female  to  a 
house  of  ill 
fame,  etc. 


Section  12.  Whoever  knowingly  procures,  entices,  sends,  or  aids  or  1 
abets  in  procuring,  enticing  or  sending,  a  woman  or  girl  to  practice  pros-  2 
titution,  or  to  enter  as  an  inmate  or  a  servant  a  house  of  ill  fame  or  other    3 


Ch.\P.   272.]      CRIMES  AGAINST   CHASTITY,   ETC.,   AND   GOOD   ORDER.  2763 

4  place  resorted  to  for  prostitution,  whether  within  or  without  the  com-  iggg,  311, 5 1. 

5  monwealth,  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  nor  fg^'  HI]  |  f 

6  more  than  five  hundred  dollars  or  by  imprisonment  for  not  less  than  three 

7  months  nor  more  than  two  years.    Whoever  as  proprietor  or  keeper  of  an 

8  intelligence  or  employment  office,  either  personally  or  through  an  agent 

9  or  employee,  procures  or  sends  a  woman  or  girl  to  enter  as  aforesaid  a 

10  house  of  ill  fame  or  other  place  resorted  to  for  prostitution,  the  char- 

11  acter  of  which  on  reasonable  inquiry  could  have  been  ascertained  by 

12  him,  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  two 

13  hundred  dollars. 

1  Section  13.     Whoever,  for  any  length  of  time,  unlawfully  detains  or  Detaining  a 

2  attempts  to  detain,  or  aids  or  abets  in  unlawfully  detaining  or  attempt-  hTilTeVnii 

3  ing  to  detain,  or  provides  or  administers  or  aids  or  abets  in  providing  or  'is™!;  3n^  §  2. 

4  administering  any  drug  or  liquor  for  the  purpose  of  detaining,  a  woman  or  f^^-  ^^f  |  ^• 

5  girl  in  a  house  of  ill  fame  or  other  place  where  prostitution  is  practiced 

6  or  allowed,  shall  be  punished  by  imprisonment  in  the  state  prison  for  not 

7  more  than  five  years  or  in  the  house  of  correction  for  not  less  than  one 

8  nor  more  than  two  and  one  half  years  or  by  a  fine  of  not  less  than  one 

9  hundred  nor  more  than  five  hundred  dollars. 

1  Section  14.    A  married  man  who  has  sexual  intercourse  with  a  woman  Adultery. 

2  not  his  wife,  an  unmarried  man  who  has  sexual  intercourse  with  a  married  c'  l.'  is.'  §  t'. 

3  woman  or  a  married  woman  who  has  sexual  intercourse  with  a  man  not  §§^*~2.'  ^" 

4  her  husband  shall  be  guilty  of  adultery  and  shall  be  punished  by  impris-  {yg^"!;,^?'  j 

5  onment  'in  the  state  prison  for  not  more  than  three  years  or  in  jail  g- 1'  jso.  1 1. 

6  for  not  more  than  two  years,  or  by  a  fine  of  not  more  than  five  hundred  p.'s.'207,'§  3.' 

7  dollars.  R.  l.  212,  §  10. 

21  Pick.  509.  2  Gush.  551.  11  Allen,  23.  157  Mass.  415. 

2  Met.  190.  6  Gush.  78.  97  Mass.  59.  163  Mass.  499. 

5  Met.  635.  6  Allen,  591.  131  Mass.  577.  211  Mass.  50. 

1  Section  15.     Whoever,  having  a  former  husband  or  wife  living,  mar-  Polygamy. 

2  ries  another  person  or  continues  to  cohabit  with  a  second  husband  or  §§^3-5^.'^" 

3  wife  in  the  commonwealth  shall  be  guilty  of  polygamy,  and  be  punished  by  \%f_  ll\  §  2. 

4  imprisonment  in  the  state  prison  for  not  more  than  five  years  or  in  jail  P,-  fg^^"' 

5  for  not  more  than  two  and  one  half  years  or  by  a  fine  of  not  more  than  g.  s.  I'es, 

6  five  hundred  dollars;  but  this  section  shall  not  apply  to  a  person  whose  p. s.'267. 

7  husband  or  wife  has  continually  remained  beyond  sea,  or  has  voluntarily  r.  l.  212,  §  11. 

8  withdrawn  from  the  other  and  remained  absent,  for  seven  consecutive  §'464.^^^' 

9  years,  the  party  marrying  again  not  knowing  the  other  to  be  living  \IIq  |; 

10  within  that  time,  nor  to  a  person  who  has  been  legally  divorced  from  the  7  Met '472' 

11  bonds  of  matrimony  and  who  is  not  the  guilty  cause  of  such  divorce,  |(<"4?g^' 

12  nor  to  any  person  who  has  been  legally  divorced  after  the  expiration  of  6  Alien,  591. 

13  two  years  from  the  time  of  the  entry  of  the  absolute  decree  of  divorce.        11  aii™!  23. ' 

105  Mass.  404.  121  Mass.  47.  140  Mass.  296.  153  Mass.  81. 

113  Mass.  458.  12ti  Mass.  34.  147  Mass.  294.  163  Mass,  453. 

1  Section  16.     A  man  and  woman  who,  not  being  married  to  each  Lascivious 

2  other,  lewdly  and  lasciviously  associate  and  cohabit  together,  or  a  man  or  and  lewdness. 

3  woman,  married  or  unmarried,  who  is  guilty  of  open  and  gross  lewdness  r  s.'iso,  §4. 

4  and  lascivious  behavior,  shall  be  punished  by  imprisonment  in  the  state  p.' I.' 207,' fa 

5  prison  for  not  more  than  three  years  or  in  jail  for  not  more  than  two  f  Mass.'l:  ^  '^' 

6  years  or  by  a  fine  of  not  more  than  three  hundred  dollars.  1°  ^i'»^^-  i^^- 

4  Gush.  49.  127  Mass.  459.  128  Mass.  52.  159  Mass.  61. 


2764 


CRIMES   AGAINST   CHASTITY,    ETC.,    AND    GOOD   ORDER.       [ChAP.    272. 


Incest. 

1695-6.  2,  §  2. 
R.  S.  130.  §  13. 
G.  S.  165.  §  7. 
P.  S.  207,  §  7. 
R.  L.  212,  §  13. 

1918.  257, 
§  464. 

1919,  5. 


Section  17.     Persons   within   the   degrees  of   consanguinity   within  1 

which  marriages  are  prohibited  or  declared  by  law  to  be  incestuous  and  2 

void,  who  intermarry  or  have  sexual  intercourse  with  each  other,  shall  3 

be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  4 

twenty  years  or  in  jail  for  not  more  than  two  and  one  half  years.  5 

1920,  2.  10  Met.  451. 


Fornication. 
C.  L.  54. 
§§  4,  5. 
1692-3.  18.  § 
1785,  66,  §  1. 


Section  18.     ^Mioever  commits  fornication  shall  be  punished  by  im- 
5  prisonment  for  not  more  than  three  months  or  by  a  fine  of  not  more  than 


thirty  dollars. 

R.  S.  130.  §  5. 


G.  S.  165,  §  8. 


P.  S.  207,  §  8, 


R.  L.  212.  5  14. 


Unlawful 

attempt. 

etc..  to  procure 

miscarriage. 

1845,  27. 

G.  S.  165,  5  9. 

P.  S.  207.  §  9. 

R.  L.  212.  §  15. 

11  Grav.  85. 

14  Grav.  419. 

15  Gray.  187. 

16  Gray,  224. 
13  Allen,  554. 
108  Mass.  401.' 
116  Mass.  47, 
343 

12l'Mass.  69. 
132  Mass.  261. 


Section  19.     AMioever,  with  intent  to  procure  the  miscarriage  of  a  1 

woman,  unlawfully  administers  to  her,  or  advises  or  prescribes  for  her,  2 

or  causes  any  poison,  drug,  medicine  or  other  noxious  thing  to  be  taken  3 

by  her  or,  with  the  like  intent,  unlawfully  uses  any  instrument  or  other  4 

means  whatever,  or,  with  like  intent,  aids  or  assists  therein,  shall,  if  she  5 

dies  in  consequence  thereof,  be  punished  by  imprisonment  in  the  state  6 

prison  for  not  less  than  five  nor  more  than  twenty  years;  and,  if  she  does  7 

not  die  in  consequence  thereof,  by  imprisonment  in  the  state  prison  for  8 

not  more  than  seven  years  and  by  a  fine  of  not  more  than  two  thousand  9 

dollars.                                                                        136  Mass.  429.  10 


155  Mass.  274. 

156  Mass.  99. 


157  Mass.  519. 
159  Mass.  56. 


165  Mass.  13.59. 
195  Mass.  100. 


213  Mass.  563. 
231  Mass.  265. 


Penalty  for 
advertising, 
etc.,  notice, 
etc.,  of  means 
to  procure 
abortion. 
1847,  83. 
G.  S.  165.  §  10. 
P.  S.  207,  §  10. 
R.  L.  212,  §  16. 
1905,  316. 

1918.  257, 
§464. 

1919.  5. 

1920.  2. 

193  Mass.  464. 
227  Mass.  57. 


Section  20.  Whoever  knowingly  advertises,  prints,  publishes,  dis-  1 
tributes  or  circulates,  or  knowingly  causes  to  be  advertised,  printed,  2 
published,  distributed  or  circulated,  any  pamphlet,  printed  paper,  book,  3 
newspaper,  notice,  advertisement  or  reference,  containing  words  or  Ian-  4 
guage  giving  or  conveying  any  notice,  hint  or  reference  to  any  person,  5 
or  to  the  name  of  any  person,  real  or  fictitious,  from  whom,  or  to  any  6 
place,  house,  shop  or  office  where,  any  poison,  drug,  mixture,  preparation,  7 
medicine  or  noxious  thing,  or  any  instrument  or  means  whatever,  or  any  8 
advice,  direction,  information  or  knowledge,  may  be  obtained  for  the  9 
purpose  of  causing  or  procuring  the  miscarriage  of  a  woman  pregnant  10 
with  chUd  or  of  preventing,  or  which  is  represented  as  intended  to  prevent,  11 
pregnancy,  shall  be  punished  by  imprisonment  in  the  state  prison  for  12 
not  more  than  three  years  or  in  jail  for  not  more  than  two  and  one  half  13 
years  or  by  a  fine  of  not  more  than  one  thousand  dollars.  14 


?g'ainst°^^°'^^        Section  21.     \\'hoever  sells,  lends,  gives  away,  exliibits,  or  offers  to     1 

is79?i5'9,  §  1.    sell,  lend  or  give  away  an  instrument  or  other  article  intended  to  be  used    2 

R  L  li2  \^26  ^or  self-abuse,  or  any  drug,  medicine,  instrument  or  article  whatever    3 

i9i8|5'.'§-i64.  for  the  prevention  of  conception  or  for  causing  unlawful  abortion,  or    4 

i92o!  2.  advertises  the  same,  or  writes,  prints  or  causes  to  be  ■^Titten  or  printed    5 

'    '     a  card,  circular,  book,  pamphlet,  advertisement  or  notice  of  any  kind    6 

stating  when,  where,  how,  of  whom  or  by  what  means  such  article  can    7 

I  be  purchased  or  obtained,  or  manufactures  or  makes  any  such  article,    8 

shall  be  punished  by  imprisonment  in  the  state  prison  for  not  more  than    9 

five  years  or  in  jail  or  the  house  of  correction  for  not  more  than  two  and  10 

one  half  years  or  by  a  fine  of  not  less  than  one  hundred  nor  more  than  11 

one  thousand  dollars.  12 


by  mSh?r  of         Section  22.     A  woman  who  conceals  the  death  of  issue  of  her  body,    1 
bastard'  which  if  bom  aiWe  would  be  a  bastard,  so  that  it  cannot  be  ascertained    2 


Chap.  272.]    crimes  against  chastity,  etc.,  .ujd  good  order.  2765 

3  whether  it  was  born  alive  or,  if  born  ahve,  whether  it  was  murdered,  ]^^f  |i-    ^ 

4  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  R-  s'  isb,  §  c. 

5  imprisonment  for  not  more  than  one  year. 

p.  S.  207,  §11.  R.  L.  212,  §17. 

1  Section  23.     A  woman  indicted  for  the  murder  of  her  infant  bastard  Joinder  of 

.11  111  1*1  ..  .  .  murder  and 

2  child  may  also  be  charged  in  the  same  indictment  with  the  crime  de-  57gr4?'|"o- 

3  scribed  in  the  preceding  section ;  and  if  she  is  acquitted  of  murder,  she  R-  s.'  136,  §  7. 

4  may  be  convicted  of  the  concealment. 

G.  S.  165.  §  12.  P.  S.  207.  §  12,  R.  L.  212,  §  18. 

1  Section  24.     Whoever  keeps  a  house  of  ill  fame  which  is  resorted  to  Keeping  house 

2  for  prostitution  or  lewdness  shall  be  punished  by  imprisonment  for  not  c.l.  2°'o8r§  2. 

3  more  than  two  years.  1720-1, 7.  §  3.  1793, 59,  §  s. 

R.  S.  130,  §  8.  P.  S.  207.  §  13.  2  Gray.  356.  124  Mass.  26. 

1849,84.  R.  L  212.  §  19.  11  Gray.  48.  132  Mass.  1. 

1855.  405.  3  Pick.  26.  1  Allen,  7.  150  Mass.  314. 

G.  S.  165,  §  13.  1  Met.  151.  12  Allen,  177.  165  Mass.  588. 

1  Section  2.5.     Any  person  owning,  managing  or  controlling  a  cafe,  res-  Use  of  certain 

2  taurant,  saloon  or  other  place  in  any  town,  where  food  or  drink  is  sold  rrsirumnts." 

3  to  the  public  to  be  consumed  upon  the  premises,  and  any  employee  of  hlbi'tld."" 

4  such  person  who  provides,  maintains,  uses  or  permits  the  use  of  a  booth,  l^'i^'*"' 

5  stall  or  enclosure  of  any  description  whatever  which  is  so  closed  by  cur- 

6  tains,  screens  or  other  devices  that  the  persons  within  cannot  at  any 

7  time  plainly  be  seen  by  other  persons  in  such  cafe,  restaurant,  saloon  or 

8  other  place,  or  in  any  division  thereof,  unless  the  enclosure  is  approved 

9  by  the  licensing  authorities,  shall  be  punished  by  a  fine  of  not  less  than 

10  fifty  nor  more  than  five  hundred  dollars  or  by  imprisonment  for  not 

11  more  than  two  months,  or  both. 

1  Section  26.     Whoever,  for  the  purpose  of  immoral  solicitation  or  Penalty  for 

2  immoral  bargaining,  shall  resort  to  any  cafe,  restaurant,  saloon  or  other  S^Tc^.'ifor 

3  place  where  food  or  drink  is  sold  or  served  to  be  consumed  upon  the  p""e°."'' '""^ 

4  premises,  and  whoever  shall  resort  to  any  such  place  for  the  purpose  of,  ^^'^*  ^*°'  ^  ^• 

5  in  any  manner,  inducing  another  person  to  engage  in  immoral  conduct, 

6  and  whoever,  being  in  or  about  any  such  place,  shall  engage  in  any  such 

7  acts,  shall  be  punished  by  a  fine  of  not  less  than  twenty-five  nor  more 

8  than  five  hundred  dollars  or  by  imprisonment  for  not  more  than  one 

9  year,  or  both. 

1  Section  27.    The  clerk  of  the  court  in  which  any  person  is  convicted  Copy  of 

n       p  .1.  p     '   ^  PI  !•  •iiici'i  1   record  ofcon- 

2  or  a  violation  oi  either  or  the  two  preceding  sections  shall  forthwith  send  viction  to 

3  a  copy  of  the  record  of  such  conviction  to  the  officer  or  board  issuing  any  Ucensing 

4  license  or  licenses  under  which  the  place  where  the  offence  was  com-  igis^isa  §  4. 

5  mitted  is  conducted. 

1  Section  28.     Whoever  imports,  prints,  publishes,  sells  or  distributes  a  Penalty  for 

2  book,  pamphlet,  ballad,  printed  paper  or  other  thing  containing  obscene,  lS\e^ltc°M' 

3  indecent  or  impure  language,  or  manifestly  tending  to  corrupt  the  morals  iitlr™ure. 

4  of  youth,  or  an  obscene,  indecent  or  impure  print,  picture,  figure,  im-  g^g"'"' "' 

5  age  or  description,  manifestly  tending  to  corrupt  the  morals  of  youth,  or  ^^  ^q^^°' 

6  introduces  into  a  family,  school  or  place  of  education,  or  buys,  procures,  g.  s.  'i65', 

7  receives  or  has  in  his  possession  any  such  book,  pamphlet,  ballad,  printed  i862','i68, 

8  paper,  obscene,  indecent  or  impure  print,  picture,  figure,  image  or  other  issd,  97. 


2766 


CRIMES   AGAINST    CHASTITY,    ETC.,    .AND    GOOD    ORDER.       [ClL^P.    272. 


P.  S.  207, 
§§  15.  16. 
1890,  70. 

1894,  433. 

1895.  162. 
R.  L.  212, 
§20. 


thing,  either  for  the  purpose  of  sale,  exhibition,  loan  or  circulation  or  -with  9 
intent  to  introduce  the  same  into  a  family,  school  or  place  of  education,  10 
shall  be  punished  by  imprisonment  for  not  more  than  two  years  and  by  11 
a  fine  of  not  less  than  one  hundred  nor  more  than  one  thousand  dollars.       12 


1904,  120. 
1913.  259. 

1918,  257,  §  450. 

1919,  5. 


1920,  2. 
17  Mass.  366. 
1  Gush.  66. 
126  Mass.  46. 


139  Mass.  382. 
164  Mass.  162. 
200  Mass.  346. 
227  Mass.  57. 


Dissemination 
by  advertise- 
ment, etc.,  of 
information 
concerning 
certain  diseases 
proliibited. 
1908,  386. 
1918,  237. 

Violation  of 
this  section 
cause  for  revo- 
cation, etc., 
of  physician's 
registration, 

See  Chap.  112, 
§2. 


Section  29.  Whoever  publishes,  delivers,  distributes,  or  causes  to  1 
be  published,  delivered  or  distributed,  an  advertisement,  statement  or  2 
notice,  other  than  a  label  which  is  attached  to  a  bottle  or  package  of  3 
medicine,  or  which  is  contained  in  a  sealed  package  of  medicine,  describ-  4 
ing  the  causes,  symptoms,  details  or  effects  of  a  venereal  disease,  or  of  a  5 
disease,  infirmity  or  condition  of  the  sexual  organs,  for  the  purpose  of  6 
calling  attention  to  or  advertising  a  person  from  whom,  or  an  office  or  7 
place  at  which,  information,  treatment  or  advice  may  be  obtained  con-  8 
cerning  such  diseases  or  conditions,  shall  be  punished  by  imprisonment  9 
for  not  more  than  six  months  or  by  a  fine  of  not  less  than  fifty  nor  more  10 
than  five  hundred  dollars,  or  both.  This  section  shall  not  apply  to  the  11 
printing  or  delivering  in  sealed  packages  outside  this  commonwealth  of  12 
books,  pamphlets  or  circulars  containing  such  advertisements,  nor  to  1.3 
newspapers  printed  outside  this  commonwealth,  nor  to  the  printing,  14 
publishing  or  distribution  of  any  matter  pertaining  to  venereal  diseases  15 
by  state  or  municipal  health  authorities.  16 


S'triSind'""  Section  30.  Whoever  sells,  lends,  gives  away  or  has  in  his  possession 
isI^mI;  '"'ith  intent  to  sell,  lend,  give  away  or  distribute,  or  offers  to  sell,  lend, 
R.  L.  212, 1 21.  gjyg  away  or  distribute  to  a  minor  a  book,  pamphlet,  magazine,  news- 
paper or  other  printed  paper  devoted  to  the  publication  or  principally 
made  up  of  criminal  news,  police  reports  or  accounts  of  criminal  deeds, 
or  pictures  and  stories  of  lust  or  crime;  or  exhibits  upon  a  public  way  or 
in  any  other  place  ■within  the  view,  or  which  may  be  M'ithin  the  view,  of  a 
minor,  or  employs  a  minor,  or  having  the  custody  or  control  of  a  minor 
permits  him,  to  sell,  lend,  give  away  or  distribute  any  such  book,  pam- 
phlet, magazine,  newspaper  or  printed  paper,  shall  be  punished  by  im-  10 
prisonment  for  not  more  than  two  years  or  by  a  fine  of  not  less  than  11 
one  hundred  nor  more  than  one  thousand  dollars.  12 


Immoral 

entertainments. 
1896,  339,  §  1. 
R.  L.  212,  I  22. 


Section  31.     \Mioever,  as  owner,  manager,  director,  agent  or  in  any  1 

other  capacity,  uses  or  causes  or  permits  to  be  used,  in  connection  with  2 

any  show  or  entertainment,  public  or  private,  a  phonograph  or  other  3 

contrivance,  instrument  or  device,  which  utters  or  gives  forth  any  pro-  4 

fane,  obscene  or  impure  language,  shall  be  punished  by  imprisonment  for  5 

not  more  than  one  year  or  by  a  fine  of  not  more  than  five  hundred  dollars,  6 

or  both.  7 


Penalty  for 
gi^nng,  etc., 
immoral  en- 
tertainments. 
R.  L.  212,  §  23. 
1910,  367. 


Section  32.     ^^^loeve^,  as  owner,  manager,  director,  agent  or  in  any  1 

other  capacity,  prepares,  advertises,  gives,  presents  or  participates  in  2 

any  lewd,  obscene,  indecent,  immoral  or  impure  show  or  entertainment,  3 

or  in  any  show  or  entertainment  suggestive  of  lewdness,  obscenity,  4 

indecency,  immorality  or  impurity,  or  in  any  show  or  entertainment  5 

manifestly  tending  to  corrupt  the  morals  of  youth,  shall  be  punished  by  6 

imprisonment  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  7 

five  hundred  dollars,  or  both.  8 


Ch.\P.    272.]      CRIMES   AGAINST   CHASTITY,    ETC.,    .•USTD    GOOD    ORDER.  2767 

1  Section  33.     WTioever  exliibits  for  hire  a  minor  or  insane  person  who  Exhibition  of 

2  is  deformed  or  a  person  who  has  an  appearance  of  deformity  produced  by  iss°™9."'^' 

3  artificial  means  shall  be  punished  by  a  fine  of  not  more  than  five  hun-  ^'  ^'  ^^^'  ^  "*" 

4  dred  dollars. 

1  Section  34.     Wlioever  commits  the  abominable  and  detestable  crime  Sodomy  and 

2  against  nature,  either  with  mankind  or  with  a  beast,  shall  be  punished  B"1f.''9i', 

3  by  imprisonment  in  the  state  prison  for  not  more  than  twenty  years.  '  ' 


C.  L.  14.  §§  7,  8. 

1784,  46,  §  1. 

R.  .S.  130,  1  14. 

P.  S.  207,  §  18. 

1697.  19. 

1804,  133. 

G.  S.  1()5,  I  IS. 

R.  L.  212,  §  25 

•  1       Section  35.     Wlioever  commits  any  unnatural  and  lascivious  act  with  u°°aturai  and 

^  lascivious  acts. 

2  another  person  shall  be  punished  by  a  fine  of  not  less  than  one  hundred  jss^,  430.  §  l_ 

3  nor  more  than  one  thousand  dollars  or  by  imprisonment  in  the  state  1918,257,' 

4  prison  for  not  more  than  five  years  or  in  jail  or  the  house  of  correction  1919, 's. 

5  for  not  more  than  two  and  one  half  years. 

1920,  2.  160  Mass.  536.  197  Mass,  106. 

1  Section  36.     \Vlioever  wilfully  blasphemes  the  holy  name  of  God  by  Blasphemy. 

2  denying,  cursing  or  contumeliously  reproaching  God,  his  creation,  govern-  c.  l.'  14,'  §  3.' 

3  ment  or  final  judging  of  the  world,  or  by  cursing  or  contumeliously  re-  1782!  8.' 

4  preaching  Jesus  Christ  or  the  Holy  Ghost,  or  by  cursing  or  contumeliously  §;  |;  lis^ivl' 

5  reproaching  or  exposing  to  contempt  and  ridicule,  the  holy  word  of  God  r  l^?/2V28 

6  contained  in  the  holy  scriptures  shall  be  punished  by  imprisonment  in  2dPick.  206. 

7  jail  for  not  more  than  one  year  or  by  a  fine  of  not  more  than  three  hun- 

8  dred  dollars,  and  may  also  be  bound  to  good  behavior. 

1  Section  37.    Whoever,  having  arrived  at  the  age  of  discretion,  pro-  Profane  cursing 

2  fanely  curses  or  swears,  shall  be  punished  by  a  fine  of  not  more  than  five  c°  l^ ^45^°^ 

3  dollars  nor  less  than  one  dollar;  but  no  prosecution  hereunder  shall  be  1692-3,  is,  §  1. 

4  commenced  after  twenty  days  from  the  commission  of  the  offence.  1733-4'  13 

1746-7,17,5  1.  R.  S.  130.  I  16.  P.  S.  207.  §  20. 

1798,  33,  §§  1,3.  G.  S.  105,  §  20.  R.  L.  212,  §  29. 

1  Section  38.     Whoever  wilfully  interrupts  or  disturbs  an  assembly  of  Disturbing  re- 

^  .,,,,  I,         Hgious  worship. 

2  people  met  for  worship  of  God  shall  be  punished  by  imprisonment  for  c  l.  250   §  2. 

3  not  more  than  one  month  or  by  a  fine  of  not  more  than  fifty  dollars.         r.  s.'  isb,  i'l"- 

G.  S.  165,  §  21.  P.  S.  207,  §  21.  R.  L.  212,  §  30.  2  Mass.  163. 

1  Section  39.     Whoever,  during  the  time  of  holding  a  camp  or  field  ''^^,','"^;t„ 

2  meeting  for  religious  purposes,  and  within  one  mile  of  the  place  thereof,  near  camp 

3  hawks  or  peddles  goods,  wares  or  merchandise,  or  establishes  or  main-  1838,  i43. 

4  tains  a  tent,  booth  or  building  for  vending  provisions  or  refreshments,  1867]  59. ' 

5  or  furnishes  shelter  and  food  for  or  has  the  care  of  horses  for  pay,  without  Jl?!;  H 

6  permission  from  the  authorities  or  officers  having  the  charge  or  direction  r. l.Ti^.Vsi. 

7  of  such  meeting,  or  engages  in  gaming  or  horse  racing,  or  exhibits  or  1^2  Mass.  542. 

8  offers  to  exliibit  any  show  or  play,  shall  forfeit  not  more  than  twenty 

9  dollars;  provided,  that  the  time  of  holding  such  meeting  shall  not  exceed 

10  thirty  consecutive  days  in  any  one  year;    and  that  a  person  having  a 

11  regular,  usual  and  established  place  of  business  within  such  limits  need 

12  not  suspend  his  business. 

1  Section  40.     'Whoever  wilfully  interrupts  or  disturbs  a  school  or  other  Disturbance 

2  assembly  of  people  met  for  a  lawful  purpose  shall  be  punished  by  im-  puWic°me"Jting. 

3  prisonment  for  not  more  than  one  month  or  by  a  fine  of  not  more  than  q ''I;  %'^_  5  23. 

4  fifty  dollars.  p.  S.  207,  §  23.  R.  L.  212,  §  32.  1  Gray.  476. 


2768  CRIMES   AG.UNST   CH.\STITY,   ETC.,    ANT>   GOOD   ORDER.      [CiLVP.   272. 

S'^*ilbu?°™  Section  41.     "\Mioever  wilfully  disturbs  persons  assembled  in  a  pub-  1 

i885"22'5  l''^  library,  or  a  reading  room  connected  therewith,  by  making  a  noise  2 

R.  L.  212, 1  33.  or  in  any  other  manner  during  the  time  when  such  hbrary  or  reading  3 

room  is  open  to  tlie  public  shall  be  punished  as  provided  in  the  preceding  4 

section.  5 

?nu"erar^  Section  42.     Whoever  A^-ilfully  interrupts  or  by  fast  driving  or  other-     1 

G ^s  165  5  24  '^'s®  ^^1  ^^y  "^'^y  disturbs  a  funeral  assembly  or  procession  shall  be  pun-    2 
p.'s.'207;i  24.' ished  as  provided  in  section  forty.  r.l.  212,  §34.  1  Gray,  476.  3 

SictlrTpublfo''      Section  43.     \^'hoe^■er,  in  or  upon  a  railroad  carriage,  steamboat  or  I 

isss^io"'"^'      other  public  conveyance,  is  disorderly,  or  disturbs  or  annoys  travelers  2 

R.  l'.  212,  §  3s.  in  or  upon  the  same  by  profane,  obscene  or  indecent  language,  or  by  in-  3 

§  87.'      '     '    decent  behavior,  shall  be  punished  as  provided  in  section  forty.  4 

drunk'enMss.         Section  44.     Wliocvcr  is  found  In  a  state  of  intoxication  in  a  public  1 

G  ^1'  86^1^0^'  pl^ce,  or  is  found  in  any  place  in  a  state  of  intoxication  committing  a  2 

^i^-  *i^-  5  *2.  breach  of  the  peace  or  disturbing  others  by  noise,  may  be  arrested  with-  3 

p.  s.'207, 5  25.  out  a  warrant  by  a  sheriff,  deputy  sheriff,  constable  or  police  officer,  and  4 

R.  L.  2I2',  §  36.  kept  in  custody  in  a  suitable  place  until  he  has  recovered  from  his  5 

W0°S3!'316.    intoxication.  123  Mass.  436.  6 

125  Mass.  19S.  144  Mass.  294.  173  Mass.  52. 

141  Mass.  102.  150  Mass.  243.  298.  3  Op.  A.  G.  96. 

a^?sted  for  SECTION  4.5.     Whoe\'er  arrests  a  person  for  drunkenness  shall  make  a     1 

may  beTi?*      complaiut  agaiust  him  therefor  at  the  next  session  of  the  court  or  of  the    2 

tatn^ca'sesretc    trial  justicc  having  jurisdiction  of  the  case;  and  such  court  or  trial  justice    3 

st^'i's^'^'         ^^^y  proceed  to  hear  and  to  dispose  of  the  same  according  to  due  course    4 

1893,414.         of  law;    and  may,  if  the  accused  has  been  released  under  this  section,     5 

1905,'  384.'         order  the  issuance  of  a  warrant  for  the  arrest,  or  a  summons  for  the  ap-    6 

157  Mass'.  556.   pcaraucc,  of  the  accused  for  trial,  or  if  the  court  is  satisfied  by  the  report    7 

208  Mass.  287.   ^^  j^^  probation  officer,  or  otherwise,  or  if  the  trial  justice  is  satisfied  upon    8 

inquiry  that  the  accused  has  not  four  times  before  been  arrested  for    9 

drunkenness  ■n-ithin  a  year,  and  that  his  written  statement  hereinafter  10 

mentioned  is  true,  the  court  or  trial  justice  may  thereupon  direct  that  11 

the  accused,  if  still  in  custody,  be  released  without  arraignment;  and  if  12 

not  in  custody,  that  further  proceedings  in  the  case  be  suspended  or  that  13 

the  complaint  be  dismissed.  14 

a"e3°ted  may         A  pcrsou  SO  arrestcd  may,  after  he  has  recovered  from  his  intoxication,  15 

Sentin  wnUng  make  a  WTittcn  statement,  addressed  to  the  court  or  trial  justice  having  16 

tobe'reieaMd    jurisdiction  of  liis  offcncc,  giving  his  name  and  address,  setting  forth  17 

from  custody,    w-hat  persons,  if  any,  are  dependent  upon  him  for  support,  his  place  of  18 

emplojTnent,  if  any,  and  whether  he  has  been  arrested  for  drunkenness  19 

within  the  twelve  months  next  preceding,  and  requesting  to  be  released  20 

from  custody;  and  may  deliver  said  statement  to  the  officer  in  charge  of  21 

the  place  in  which  he  is  confined,  who  shall  endorse  thereon  the  name  of  22 

the  arresting  officer,  and  if  the  arrest  is  made  within  the  jurisdiction  of  a  23 

trial  justice,  his  opinion  of  the  probable  truth  of  said  statement  for  the  24 

use  of  such  trial  justice,  and  shall  transmit  the  same  to  such  trial  justice;  25 

and  if  the  arrest  is  made  within  the  jurisdiction  of  a  court  having  a  pro-  26 

bation  officer,  the  officer  in  charge  of  the  place  in  which  he  is  confined  27 

shall  transmit  such  statement  to  said  probation  officer.    Said  probation  28 

officer,  or  his  assistants,  shall  forthwith  inquire  into  the  truth  thereof  29 

and  shall  investigate  the  record  of  said  person  as  to  pre\'ious  similar  30 


CeAF.   272.]      CRIMES  AGAINST  CH.\STITY,   ETC.,   .\ND   GOOD  ORDER.  2769 

31  offences,  and,  for  the  use  of  the  court  having  jurisdiction  of  the  case,  shall 

32  endorse  on  such  statement,  with  his  signatiu-e,  the  result  of  his  investiga- 

33  tion.    The  officer  for  the  time  being  in  charge  of  the  place  of  custody 

34  in  a  town  where  no  probation  officer  resides  forthwith  may  release,  and 

35  elsewhere  the  probation  officer  or  assistant  probation  officer  of  the  coiu-t 

36  hai-ing  jurisdiction  of  the  offence  may  direct  the  officer  in  charge  of  the 

37  place  of  custody  forth\\'ith  to  release,  and  such  officer  so  in  charge  shall 

38  thereupon  release,  such  arrested  person  pursuant  to  his  request;   pro- 

39  \aded,  that  the  officer  so  releasing  or  directing  the  release  believes  that 

40  the  person  arrested  has  given  his  true  name  and  address,  that  he  will 

41  appear  upon  a  summons,  and  that  he  has  not  four  times  before  been 

42  arrested  for  drunkenness  within  the  preceding  twelve  months. 

1  Section  46.     The  officer  in  charge  of  the  place  of  custody  in  which  a  Persons 

2  person  arrested  for  drunkenness  is  confined  shall  inform  him,  when  he  has  for  drunken- 

3  recovered  from  his  intoxication,  of  his  right  to  make  a  WTitten  statement  fn/ormed°of 

4  and  request  for  release  under  the  preceding  section,  and  an  officer  making  ^l^e^fat'e-*" 

5  an  arrest  under  the  authority  of  said  section  shall  not  be  liable  for  illegal  J^™5''3''g4  s  g 

6  arrest  or  imprisonment,  if  the  person  arrested  is  so  released  at  his  request.  208  Mass'.  2S7. 

1  Section  47.     A  full  record  shall  be  kept  by  every  court  or  trial  justice  Record  of 

2  of  each  case  in  which  a  person  is  released,  as  aforesaid,  with  the  statement  E^^S!^  '^^ 

3  made  by  him.  isoi,  427,  §  4. 

R.  L.  212,  §  38.  1918,  257,  §  451.  1919,  5.  1920,  2. 

1  Section  48.     If  a  person  is  convicted  of  drunkenness  by  the  volun-  Penalties  for 

2  tary  use  of  intoxicating  liquor,  he  may  be  punished  by  imprisonment  in  aT.  so'm. 

3  jail  or  in  any  place  pro\ided  by  law  for  common  drunkards,  or,  if  a  male,  legi'l;  ^^'  ^  ^' 

4  in  the  Massachusetts  reformatory,  or,  if  a  female,  in  the  reformatory  for  r ^|"t'3o^§  i8 

5  women,  for  not  more  than  one  year;  or  by  a  fine  of  not  more  than  fifteen  ^^°- 1||    ^_ 

6  dollars,  or  the  court  may  place  the  case  on  file  or  place  the  defendant  1869,452.' 

7  on  probation  and  prescribe  the  terms  thereof. 

1879,  229,  §  1.  1885,  365,  §  2;  375.  116  Mass.  340. 

1880,  221,  §§  1,  1886,  323,  §  1.  133  Mass.  496. 
2;  247,  §  1.  R.  L.  212,  §  39.  157  Mass.  471. 

1881,  276.  1913,  620.  •    184  Mass.  195. 
P.  S.  207,  §§  26-28.  .   8  Gray,  484.  1  Op.  A.  G.  219. 

1  Section  49.     Probation  officers   shall   assist  the  courts   appointing  Duties  of  pro- 

2  them  by  obtaining  and   furnishing   information   relative  to  pre'vious  i89i°'42^°''"" 

3  arrests,  convictions  and  imprisonments  for  drunkenness,  and  such  other  |j^  l,^212,  §  40. 

4  facts  as  the  court  orders  relative  to  persons  accused  of  drunkenness.  P4|;^^"' 

5  They  shall  keep  a  full  record,  well  indexed,  of  each  such  case  which  they  wis.  s- 

6  investigate,  in  such  form  as  the  court  orders. 

1  Section  50.     Records  and  statements  made  under  sections  forty-five  Records  open 

2  and  forty-seven  to  forty-nine,  inclusive,  shall  be  at  all  times  open  to  the  is9i?427,'T7. 

3  police  officials  of  the  towns  of  the  commonwealth.    The  police  commis-  fgoe;  291!  |  la 

4  sioner  of  Boston,  city  marshals  and  chiefs  of  police,  keepers  of  jails  and 

5  masters  of  houses  of  correction  shall  on  application  furnish  to  each  other 

6  and  to  probation  officers,  and  probation  officers  shall  on  application  fur- 

7  nish  to  each  other,  all  information  in  their  possession  relative  to  persons 

8  whose  cases  are  under  investigation. 

1  Section  51.     Whoever  opens  a  place  to  be  resorted  to  by  other  per-  Opiuni  resorts. 

2  sons,  in  which  opium  or  any  of  its  derivatives  or  compounds  is  sold  or  r.  l!  212,  §  42. 


2770 


CRIMES   AGAINST    CILVSTITy,    ETC.,    AND   GOOD   ORDER.       [CiLVP.   272. 


Search  of  sus- 
pected opium 
resorts. 
1895,  194, 
§§  1,  2. 

R.  L.  212.  §  43. 
173  Mass.  477. 


Rogues, 
vagabonds, 
etc. 

C.  L.  153.  §  1. 
1699-1700, 
8,  §2. 
1769-70,  19. 
1787,  54,  §  2. 
1834,  151, 
§§2,3. 
R.  S.  143, 
§§5,6. 

1837,  157;  217. 
1851,346. 
1856,  186. 
G.  S.  165, 
§§  28,  29. 
1866,  235. 
1874,  385,  §  21. 
1876,  118. 
1878,  270,  §  2. 
1880,  114:  257. 
P.  S.  207, 
§§  29,  30. 

1884,  258,  §  1. 

1885,  365,  §  1. 

1886,  323,  §  1. 
1898,  443,  §  1. 
R.  L.  85,  §  30; 
212,  §§  46,48. 
1914,  743. 

10  Met.  217. 

11  Cu.ih.  477. 

5  Gray,  85. 
14  Gray,  397. 
1  Allen,  6. 

4  Allen,  313. 

6  Allen,  511. 
99  Mass.  497. 
112  Mass.  285. 
137  Mass.  24,5. 
141  Mass.  78. 


given  away  to  be  smoked  at  such  place,  and  whoever  visits  or  resorts  to  3 

any  such  place  for  the  purpose  of  smoking  opium  or  any  of  its  derivatives  4 

or  compounds,  shall  be  punished  by  a  fine  of  not  more  than  five  hundred  5 

dollars  or  by  imprisonment  for  not  more  than  six  months,  or  both.  6 

Section  52.  If  a  person  makes  oath  before  a  district  court  or  trial  1 
justice  that  he  believes  or  has  probable  cause  to  believe  that  any  place,  2 
house,  building  or  tenement  within  the  jurisdiction  of  such  court  or  justice  3 
is  used  or  resorted  to  for  the  purpose  of  smoking  opium  or  any  of  its  4 
derivatives  or  compounds,  or  for  the  purpose  of  selling  or  giving  away  5 
opium  or  any  of  its  derivatives  or  compounds  to  be  smoked  at  such  place,  6 
house,  building  or  tenement,  and  that  persons  resort  thereto  for  such  7 
purposes,  such  court  or  justice,  whether  the  names  of  the  persons  last  8 
mentioned  are  known  or  unknown  to  the  complainant,  shall,  if  satis-  9 
fied  that  there  is  probable  cause  therefor,  issue  a  warrant  commanding  10 
the  sheriff  or  his  deputy  or  any  constable  or  police  officer  to  enter  such  11 
place,  house,  building  or  tenement  and  there  to  arrest  the  keepers  thereof,  12 
and  all  persons  there  present,  whether  smoking  or  not,  if  the  implements  13 
for  smoking  opium  or  any  of  its  derivatives  or  compounds  are  there  14 
found,  and  seize  all  the  opium  and  derivatives  or  compounds  thereof  and  15 
all  the  implements  for  smoking  the  same  and  all  the  furniture,  fixtures  16 
and  other  personal  property  there  found,  and  to  keep  said  persons,  opium,  17 
derivatives  or  compounds  thereof,  implements,  furniture,  fixtures  and  18 
property  so  that  they  may  be  produced  before  a  court  or  magistrate,  to  19 
be  dealt  with  according  to  law.  Whoever  is  found  so  present  or  so  20 
smoking  shall  be  punished  by  a  fine  of  not  more  than  one  hundred  dollars.  21 
The  provisions  of  chapter  two  hundred  and  seventy-six  relative  to  dis-  22 
posal  of  gaming  articles  seized  upon  search  warrants  shall  apply  to  all  23 
articles  seized  as  herein  provided  for.  24 

Section  53.  Rogues  and  vagabonds,  persons  who  use  any  juggling  1 
or  unlawful  games  or  plays,  common  pipers  and  fiddlers,  stubborn  chil-  2 
dren,  runaways,  common  drunkards,  common  nightwalkers,  both  male  and  3 
female,  persons  who  with  offensive  or  disorderly  act  or  language  accost  4 
or  annoy  in  public  places  persons  of  the  opposite  sex,  pilferers,  lewd,  5 
wanton  and  lascivious  persons  in  speech  or  behavior,  common  railers  6 
and  brawlers,  persons  who  neglect  their  calling  or  employment  or  who  7 
misspend  what  they  earn  and  do  not  provide  for  themselves  or  for  the  8 
support  of  their  families,  and  all  other  idle  and  disorderly  persons  in-  9 
eluding  therein  those  persons  who  neglect  all  lawful  business  and  habitu-  10 
ally  misspend  their  time  by  frequenting  houses  of  ill  fame,  gaming  houses  11 
or  tippling  shops,  may  be  punished  by  imprisonment  in  the  Massachu-  12 
setts  reformatory  or  at  the  state  farm  in  the  case  of  a  male  offender,  or  13 
in  the  reformatory  for  women  or  at  the  state  farm  in  the  case  of  a  female  14 
offender,  or,  for  not  more  than  six  months,  in  the  house  of  correction  or  15 
workliouse  in  the  town  where  the  offender  is  convicted,  or  in  the  work-  16 
house,  if  any,  in  the  town  where  the  offender  has  a  legal  settlement,  17 
if  such  town  is  in  the  county  where  the  conviction  was  obtained,  or  by  18 
a  fine  not  exceeding  two  hundred  dollars,  either  with  or  without  a  condi-  19 
tion  that,  if  it  is  not  paid  within  a  time  specified,  the  person  convicted  20 
shall  be  punished  by  imprisonment  under  this  section;  and  such  con-  21 
ditional  sentence  shall  be  executed  according  to  section  ten  of  chapter  22 
two  hundred  and  seventy-nine.  i"0  Mass.  192.  23 

179  Mass.  533.  207  Mass.  572.  1  Op.  A.  G.  219. 


Chap.  272.]    crimes  against  cil\stity,  etc.,  akd  good  order.  2771 

1  Section  54.     Wlioever  is  found  in  a  public  way  or  other  public  place.  Arrest  of  dis- 

2  committing  any  offence  or  disorder  mentioned  in  the  preceding  section,  S  street^r'*"'' 

3  may  be  apprehended  by  a  sheriff,  deputy  sheriff,  constable  or  police  isMrisi!  fs. 

4  officer,  or  by  any  other  person  by  the  order  of  a  magistrate  or  any  of  §;  |-  \jjl- 1  gj 

5  said  officers,  without  a  warrant  and  be  kept  in  custody  for  not  more  than  P-  |-  ^ot,  §3^1^ 

6  twenty-foiu"  hours,  Sundays  and  legal  holidays  excepted,  until  he  can  i9i+.  bm 

7  be  taken  before  a  court  or  trial  justice  having  jurisdiction  of  such  offence. 

1  Section  55.     The  master,  keeper,  director  or  overseer  of  a  workhouse  Master  of 

2  to  which  a  person  has  been  committed  under  any  provision  of  the  two  et'J..  to  receive 

3  preceding  sections  shall  receive  all  persons  so  committed,  set  them  to  mTtted'""™' 

4  work  if  they  are  able,  and  employ  and  go\-ern  them  in  the  mamier  pro-  l^^^g^^""' 

5  vided  by  law  and  by  the  rules  and  orders  established  for  that  purpose;  and  J^sp  s|.j§  3^ 

6  the  town  where  such  house  is  situated  may  recover  the  balance  of  the  R.  s.'s7,  §41- 

7  expense  of  the  support  of  any  such  person  over  and  above  the  amount  of  o.'s.  le's.  §  so. 

8  his  labor  from  the  person  thus  committed,  or  from  any  kindred  or  town  r'.l.  2i2,§49. 

9  liable  by  law  for  his  support,  if  he  is  a  pauper,  in  like  manner  as  if  he 
10  had  been  committed  to  the  house  of  correction  for  the  same  offence. 

1  Section  56.     If  a  person  convicted  under  section  fifty-three  appeals  Repetition 

2  from  the  sentence,  the  commission  of  any  like  offence  by  him  before  breacroF " 

3  judgment  on  the  appeal  shall  be  a  breach  of  the  condition  of  the  recog-  iIm^'isiITs. 

4  nizance,  if  any  was  taken  upon  allowing  the  appeal. 

R.  S.  143,  §  8.  G.  S.  165,  §  31.  P.  S.  207,  §  32.  R.  L.  212,  §  50. 

1  Section  57.     When  a  person  is  brought  before  a  magistrate  upon  a  Disdiarge  of 

2  charge  of  any  offence  mentioned  in  sections  fifty-three,  sixty-six  and  recognrzance. 

3  sbcty-eight,  such  magistrate,  or  the  court  before  which  the  case  may  be  §:  i:  itf.  1 32. 

4  carried  on  appeal,  may  at  any  stage  of  the  proceedings  direct  the  defend-  ^'s'im.'iii. 

5  ant  or  appellant  to  be  discharged,  upon  his  entering  into  a  recognizance,  n-  ^-  212,  §  51. 

6  with  sufficient  sureties,  in  such  sum  as  the  magistrate  or  court  orders, 

7  for  his  good  behavior  for  not  less  than  six  months  nor  more  than  two 

8  years,  and  paying  the  expenses  of  prosecution  or  such  part  thereof  as 

9  the  magistrate  or  court  orders. 

1  Section  58.     A  parent  or  other  person  who  employs  a  minor  under  Begging  by 

2  fifteen  in  begging  or  who,  having  the  care  or  custody  of  such  minor,  per-  is87,l2i2. 

3  mits  him  to  engage  in  such  employment  shall  be  punished  by  a  fine  of  ^'  ^'  ^^''  ^  ^'^' 

4  not  more  than  two  hundred  dollars  or  by  imprisonment  for  not  more 

5  than  six  months. 

1  Section  59.     Whoever  remains  in  a  street  or  elsewhere  in  a  town  in  .'^est  without 

2  wilful  violation  of  an  ordinance  or  by-law  of  such  town  or  of  any  rule  vidatiSra  of "^ 

3  or  regulation  for  the  government  or  use  of  any  public  reservation,  park-  "stslTsT'  ^^'^' 

4  way  or  boulevard  made  under  authority  of  law  by  any  department,  R.L.f/o.^jll'. 

5  officer  or  board  in  charge  thereof,  and  whoever  in  a  street  or  other  public  I'Joo.  ^3. 

6  place  accosts  or  addresses  another  person  with  profane  or  obscene  lan- 

7  guage,  in  wilful  violation  of  an  ordinance  or  by-law  of  such  town,  may 

8  be  arrested  without  a  warrant  by  an  officer  authorized  to  serve  criminal 

9  process  in  the  place  where  the  offence  is  committed,  if  he  is  unknown  to 

10  such  officer,  and  kept  in  custody  until  he  can  be  taken  before  a  court 

11  having  jurisdiction  of  the  offence. 


2772 


CRIMES   AGAINST   CH.\STITY,   ETC.,    AND   GOOD   ORDER.      [CiLiP.   272. 


Certain  persona 
may  be  ar- 
rested and  de- 
tained for  the 
purpose  of 
ascertaining 
their  identity, 

1910.  436,  §  1. 


Section  60.     '\^lioever  commits  a  misdemeanor,  as  defined  by  a  by-  1 

law,  regulation  or  ordinance  of  a  town  or  authority  therein,  in  the  pres-  2 

ence  of  a  police  officer  or  an  officer  authorized  to  serve  criminal  process,  3 

the  substance  of  which  misdemeanor  is  the  placing  on  or  in  or  tlirowing  4 

into  a  public  way,  the  sidewalk  of  a  public  way  or  a  public  alley,  filth,  5 

rubbish  or  other  substance,  and,  being  requested  by  such  officer  forthwith  6 

to  remove  it,  refuses  or  neglects  so  to  do,  and  if  the  identity  of  such  person  7 

is  unknown  to  the  officer,  may  be  arrested  by  such  officer  and  detained  8 

in  a  safe  place  without  a  warrant  until  his  identity  is  ascertained.    Rea-  9 

sonable  diligence  shall  be  exercised  by  the  arresting  officer  in  ascertain-  10 

ing  the  identity  of  the  offender  and  when  identified  he  shall  be  released  11 

from  arrest  unless  a  warrant  has  issued  against  him.  12 


Con'viction 
after  discharge 
on  former 
con\'iction. 
1834.  151,  §  8. 
R.  S.  143,  §  13. 
G.  S.  165.  §  34. 
P.  S.  207,  §  36. 
R.  L.  212,  §  54. 


Section  61.  \^lioever,  having  been  discharged  under  section  one 
hundred  and  forty  of  chapter  one  hundred  and  twenty-seven,  is  after- 
ward convicted  of  any  offence  mentioned  in  section  fifty-tliree  com- 
mitted after  the  former  conviction,  either  in  the  same  or  a  different 
county,  may  be  sentenced  to  hard  labor  in  the  house  of  correction  or 
workhouse  for  not  more  than  one  year. 


Nightwalking. 
Third  con- 
\nction. 
1855,  69.  §  1. 
G.  S.  165,  §  35. 
1866,  198,  §  5. 

1869,  258,  §  1. 

1870,  19; 
288,  §  1. 


Section  62.  If  a  complaint  charges  a  person  with  being  a  common 
nightwalker,  and  it  is  proved  at  the  trial  that  such  person  has  been  twice 
before  convicted  of  the  same  offence,  he  may  be  sentenced  to  the  house 
of  correction,  state  farm,  or  workliouse,  if  any,  in  the  town,  for  not  more 
than  two  and  one  half  vears. 


p.  S.  88.  §  5;  207,  §  37. 

1897,  395,  §  4. 

1898,  443,  §  1. 


R.  L.  85.  §  30; 

212,  §  55. 

1918,  257,  §  464. 


1919,  S. 

1920,  2. 

Op.  A.  G.  (1920)  39. 


Tramps. 

1880,  257, 

§§  2,  3,  7. 

P.  S.  207,  §  38. 

1896,  385. 

R.  L.  212,  §  56. 


Section  63.     Whoever,  not  being  under  seventeen,  a  blind  person  or  1 

a  person  asking  charity  within  his  own  town,  roves  about  from  place  to  2 

place  begging,  or  living  without  labor  or  visible  means  of  support,  shall  3 

be  deemed  a  tramp.    An  act  of  begging  or  soliciting  alms,  whether  of  4 

money,  food,  lodging  or  clothing,  by  a  person  having  no  residence  in  the  5 

town  within  which  the  act  is  committed,  or  the  riding  upon  a  freight  train  6 

of  a  railroad,  whether  within  or  without  any  car  or  part  thereof,  without  7 

a  permit  from  the  proper  officers  or  employees  of  such  railroad  or  train,  8 

shall  be  prima  facie  evidence  that  such  person  is  a  tramp.  9 


Punishmen 
of  tramps. 
1880,  257, 
§§  1,4. 
P.  S.  207, 
§§  .39,  40. 
R.  L.  212, 

1918,  257, 
§464. 

1919,  5. 

1920,  2. 


§57. 


Section  64.     A  tramp  shall  be  punished  by  imprisonment  in  the  1 

house  of  correction  for  not  less  than  six  months  nor  more  than  two  2 

years,  or  by  imprisonment  at  the  state  farm;  and  if  he  enters  a  dwelling  3 

house  or  other  building  without  the  consent  of  the  o^^■ner  or  occupant  4 

thereof,  or  wilfully  or  maliciously  injures  or  threatens  to  injure  any  person  5 

therein,  or  threatens  to  do  any  injury  to  any  person,  or  to  the  property  of  6 

another,  or  is  found  carrying  a  firearm  or  other  dangerous  weapon,  he  7 

shall  be  punished  by  imprisonment  in  the  house  of  correction  for  not  8 

less  than  one  nor  more  than  two  and  one  half  years,  or  at  the  state  farm.  9 


tram's"'  Section  65.     A  sheriff,   deputy  sheriff,   constable  or  police  officer, 

1880,257,  upon  view  or  information  of  an  offence  described  in  the  two  preceding 

p.  s.' 207,  §  41.  sections,  may,  without  a  warrant,  arrest  the  ofl'ender,  and  make  com- 
plaint against  him  therefor;  and  the  state  police  shall  make  such  arrests 
and  complaints.     Mayors  and  selectmen  shall  appoint  special  police 


Ch.\P.   272.]      CRUIES  AGAINST   CH.\STITY,   ETC.,   .AND   GOOD   ORDER.  2773 

6  officers,  who  shall  also  make  such  arrests  and  complaints  in  their  re- 

7  spective  towns. 

1  Section  66.     Idle  persons  who,  not  having  \-isible  means  of  support,  vagrants. 

2  live  without  lawful  employment;  persons  wandering  abroad  and  visiting  §§  i.'s. 

3  tippling  shops  or  houses  of  ill  fame,  or  lodging  in  groceries,  outhouses,  issi,  25s.  §  i'' 

4  market  places,  sheds,  barns  or  in  the  open  air,  and  not  giving  a  good  \IIq\  I23;  |  {'. 

5  account  of  themselves;   persons  wandering  abroad  and  begging,  or  who  r^lM^'Im 

6  go  about  from  door  to  door,  or  place  themselves  in  public  ways,  passages  Jos^i'/.^^g^ij- 

7  or  other  public  places  to  beg  or  receive  alms,  and  who  do  not  come  within  h7  jikss!  399. 

8  the  description  of  tramps,  as  contained  in  section  sixty-three,  shall  be  459. ' 

9  deemed  vagrants,  and  may  be  sentenced  to  the  Massachusetts  reformatory 

10  or  state  farm  or  shall  be  punished  by  imprisonment  for  not  more  than 

1 1  six  months  in  the  house  of  correction  or  workliouse. 

1  Section.  67.     Sheriffs,  deputy  sheriffs,  constables  and  police  officers,  Arrest  ot 

2  acting  on  the  request  of  any  person  or  upon  their  own  information  or  i866?235,  §  2. 

3  belief,  shall  without  a  warrant  arrest  and  carry  any  vagrant  before  a  R.L.^2'/2.\1fd. 

4  district  court  or  trial  justice  for  the  purpose  of  an  examination,  and 

5  shall  make  complaint  against  him. 

1  Section  68.     A  person  known  to  be  a  pickpocket,  thief  or  burglar,  Certain  persons 

2  if  acting  in  a  suspicious  manner  around  any  steamboat  landing,  railroad  vagabonds!' 

3  depot,  or  any  electric  railway  station,  or  place  where  electric  railway  cars  ^!^s' 20?.' i  *i. 

4  stop  to  allow  passengers  to  enter  or  leave  the  cars,  banking  institution,  fg^-  jj|'  ^  ''^■ 

5  broker's  office,  place  of  public  amusement,  auction  room,  store,  shop,  207  Mass.  572. 

6  crowded  thoroughfare,  car  or  omnibus,  or  at  any  public  gathering  or 

7  assembly,  shall  be  deemed  a  vagabond,  and  shall  be  punished  by  impris- 

8  onment  in  the  house  of  correction  for  not  less  than  four  nor  more  than 

9  twelve  months. 

1  Section  69.     Sheriffs,  deputy  sheriffs,  constables  and  police  officers  Arrest  of 

2  shall  take  any  such  vagabond  into  custody  without  a  warrant  and  shall,  i866,''2.?5.^§  4. 

3  within  twenty-four  hours  after  such  arrest,  Sundays  and  legal  holidays  r.i;.212,|62'. 

4  excepted,  take  him  before  a  district  court  or  trial  justice,  and  shall  make 

5  complaint  against  him. 

1  Section  70.     A  sheriff,  deputy  sheriff  or  constable  who  takes  the  Attachment  of 

2  body  of  a  deceased  person  on  mesne  process  or  execution  shall  be  punished  mi.'io'f  §  2. 

3  by  a  fine  of  not  more  than  five  hundred  dollars  or  by  imprisonment  for  §;  |;  i65,^§*36. 

4  not  more  than  six  months.  p.  s.  207,  §  46.  r.  l.  212.  §  63. 

1  Section  71.     Whoever,  not  being  authorized  by  the  board  of  health,  violation  of 

2  overseers  of  the  poor,  directors  of  a  workliouse,  or  mayor  and  aldermen  is'u.'nl'. 

3  or  selectmen,  or  by  the  penal  institutions  commissioner  or  overseers  of  §§^,'2.^' 

4  the  poor  of  Boston,  wilfully  digs  up,  disinters,  removes  or  conveys  away  §•  |-  Hf  |  If 

5  a  human  body,  or  the  remains  thereof,  or  knowingly  aids  in  such  disin-  l.^^'^JV  \  47 

6  terment,  removal  or  conveying  away,  and  whoever  is  accessory  thereto  isgT'.M.i  §  s.' 

7  either  before  or  after  the  fact,  shall  be  punished  by  imprisonment  in  the  lois.'  257, 

8  state  prison  for  not  more  than  three  years  or  in  jail  for  not  more  than  fglgt'a. 

9  two  and  one  half  years  or  by  a  fine  of  not  more  than  two  thousand  dollars,  s^lfcif  370. 

10  Pick,  37.  19  Pick.  304. 


2774  CBIMES   AGAINST    CHASTITY,    ETC.,    .ANT)    GOOD    ORDER.       [ClIAP.    272. 

SnTS^d^d           Section  72.     \Mioever  buys  or  sells,  or  has  in  his  possession  for  the  1 

i853'323,         purpose  of  buying,  selling  or  trafficking  in,  the  dead  body  of  a  human  2 

G  s  ^165  5  38  "^^"^S  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  more  than  five  3 

p.'s.'207.'§48.'  hundred  dollars  or  by  imprisonment  for  not  less  than  three  months  nor  4 

1918,' 2o7,'§  464.' more  than  two  and  one  half  years.                 i9i9,  s.                1920,2.  5 

del^iSI  tombs,      Section  73.     TMioever  wilfully  destroys,  mutilates,  defaces,  injures  1 

1^4, 1S7.  §  2.    01"  removes  a  tomb,  moniunent,  gravestone  or  other  structure  or  thing  2 

G  I'  165'  1 39'  ^'h'c-h  is  placed  or  designed  for  a  memorial  of  the  dead,  or  a  fence,  railing,  3 

1879. 39. '         ciu-b  or  other  thing  which  is  intended  for  the  protection  or  ornament  of  4 

r'.  l.  212,  §  66.  a  structm^e  or  thing  before  mentioned  or  of  an  enclosure  for  the  burial  of  5 

§  464.     '         the  dead,  or  wilfully  destroys,  mutilates,  removes,  cuts,  breaks  or  injures  6 

i92o;  2^            a  tree,  shrub  or  plant  placed  or  being  within  such  enclosure,  or  wantonly  7 

100  Mass.  181.   pj.  maliciously  disturbs  the  contents  of  a  tomb  or  a  grave,  shall  be  punished  8 

by  a  fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment  in  9 

the  jail  or  house  of  correction  for  not  more  than  two  and  one  half  years.  10 

of1buriai'°°           SECTION  74.     \Mioever  ^^Tongfully,  and  by  any  act  not  included  in  1 

f84™ii4,  §  6.    the  preceding  section,  destroys,  injures  or  removes  a  building,  fence,  2 

a^a  It!'/ 12.    railing  or  other  thing  lawfully  erected  in  or  around  a  place  of  burial  or  3 

R  L  ^"r'  Vet  ^em^tery,  or  a  tree,  shrub  or  plant  within  its  limits,  or  wTongfully  injures  4 

7  aH™'  iqq'      ^  '^alk  or  path,  or  places  rubbish  or  offensive  matter  or  commits  a  nuisance  5 

100  Mass.  181.   therein,  or  in  any  way  desecrates  or  disfigures  the  same,  shall  forfeit  not  6 

less  than  five  nor  more  than  one  hundred  dollars.    Upon  the  trial  of  a  7 

complaint  hereunder,  use  and  occupation  for  the  piu-poses  of  burial  shall  8 

be  suflicient  evidence  of  title.  9 

floTere,\tc..          Section  75.    "Whoever,  without  authority,  removes  flowers,  flags  or  1 

1888, 395^^'       memorial  tokens  from  any  grave,  tomb,  monument  or  burial  lot  in  any  2 

R.  L.  212,  §  68.  cemetery  or  other  place  of  burial  shall  be  punished  by  a  fine  of  not  more  3 

than  one  hundred  dollars.  4 

eta!"t^Ji?^h'        Section  76.    "V^Tioever  lays  out,  opens,  or  makes  a  highway  or  town  1 

issS'w.Ti'.    ^ay,  or  constructs  a  railroad  or  canal,  or  any  other  thing  in  the  nature  2 

«  59  60-         ^^  *  public  easement,  over,  tlu-ough,  in  or  upon  any  part  of  an  enclosure,  3 

30,  §  21."         which  is  the  property  of  a  city,  town,  parish,  religious  society  or  of  private  4 

p.'  s'.  207, 1  SI.'  proprietors  and  is  used  or  appropriated  for  the  burial  of  the  dead,  unless  5 

authority  for  that  purpose  is  specially  granted  by  law,  or  unless  the  6 

consent  of  such  city,  town,  parish,  religious  society  or  proprietors,  re-  7 

spectively,  is  first  obtained,  shall  be  punished  by  a  fine  of  not  more  than  8 

two  thousand  dollars  or  by  imprisonment  for  not  more  than  one  year.  9 

a^ais.  °            Section  77.     ^Vhoever  overdrives,  overloads,  drives  when  overloaded,  1 

issl',  96°'  ^  ^^'  overworks,  tortures,  torments,  deprives  of  necessary  sustenance,  cruelly  2 

fggf  111;  ^  *'■  beats,  mutilates  or  kills  an  animal,  or  causes  or  procures  an  animal  3 

iIg9"344          ^^  ^^  ^°  overdriven,  overloaded,  driven  when  overloaded,  overworked,  4 

§§i.'|-  '         tortured,  tormented,  deprived  of  necessary  sustenance,  cruelly  beaten,  5 

§§52,53.          mutilated  or  killed,  and  whoever,  ha\'ing  the  charge  or  custody  of  an  6 

7Aii'en,  579.    '  animal,  either  as  owner  or  otherwise,  inflicts  unnecessary  cruelty  upon  7 

111  Mass!  408.   it)  or  unnecessarily  fails  to  provide  it  ^ith  proper  food,  drink,  shelter  or  8 

118  Mai:  45s;   protcctiou  from  the  weather,  and  whoever,  as  owner,  possessor  or  person  9 

}37  Mass.  600.   having  the  charge  or  custody  of  an  animal,  cruelly  drives  or  works  it  10 

150  Mass.  509.   whcii  unut  lor  labor,  or  cruelly  abandons  it,  or  carries  it  or  causes  it  to  be  11 


Chap.  272.]    crimes  against  chastity,  etc.,  and  good  order.  2775 

12  carried  in  or  upon  a  vehicle,  or  other«'ise,  in  an  unnecessarily  cruel  or  i62  Mass.  si?. 

13  inhuman  manner,  or  knowin{,'ly  and  -wilfully  authorizes  or  permits  it  to  niMaSiu! 

14  be  subjected  to  unnecessary  torture,  suffering  or  cruelty  of  any  kind,  shall 

15  be  punished  by  imprisonment  for  not  more  than  one  year  or  by  a  fine 

16  of  not  more  than  two  hundred  and  fifty  dollars,  or  both. 

1  Section  78.     No  person  holding  an  auctioneer's  license  shall  receive  Buying. 

2  or  offer  for  sale  or  sell  at  public  auction,  nor  shall  any  person  sell  at  private  !eadmg,^*°" 

3  sale,  or  lead,  ride  or  drive  on  any  public  way,  for  any  purpose  except  dSawld^*"" 

4  that  of  convejang  the  horse  to  a  proper  place  for  its  himiane  keeping  Penffjy 

5  or  killing,  or  for  medical  or  surgical  treatment,  any  horse  which,  by  rea-  J^o^.  iss. 

6  son  of  debility,  disease  or  lameness,  or  for  other  cause,  could  not  be 

7  worked  in  the  commonwealth  M-ithout  violating  the  laws  against  cruelty 

8  to  animals.     This  section  shall  not  prohibit  the  purchase  of  horses  by 

9  humane  societies  incorporated  under  the  laws  of  the  commonwealth  for 

10  the  pm-pose  of  humanely  killing  the  same.    Violation  of  this  section  shall 

11  be  punished  by  a  fine  of  not  less  than  five  nor  more  than  one  hundred 

12  dollars  or  by  imprisoimient  for  not  more  than  six  months.     If  a  licensed 

13  auctioneer  violates  this  section,  he  shall  also  forfeit  his  license. 

1  Section  79.     A  corporation  violating  either  of  the  two  preceding  Corporations 

2  sections  shall  be  punished  by  a  fine  as  therein  provided,  and  shall  be  i808!'2i2,  §  ?. 

3  responsible  for  the  knowledge  and  acts  of  its  agents  and  servants  rela-  p'^'s.'im.'iii. 

4  tive  to  animals  transported,  owned  or  used  by  it  or  in  its  custody.  ^-  ^-  ^^^'  ^  ^'• 

1  Section  80.     Whoever  cuts  the  bone  of  the  tail  of  a  horse  for  the  pur-  Mutilation 

2  pose  of  docking  the  tail,  or  whoever  causes  or  knowingly  permits  the  issol'^ie?. 

3  same  to  be  done  upon  premises  of  which  he  is  the  owner,  lessee,  proprietor  §§^^-3.^'' 

4  or  user,  or  whoever  assists  in  or  is  present  at  such  cutting,  shall  be  pun-  ^-  ^-  ^^^'  ^  ^^• 

5  ished  by  imprisonment  for  not  more  than  one  year  or  by  a  fine  of  not 

6  less  than  one  hundred  nor  more  than  three  hundred  dollars.    If  a  horse 

7  is  found  with  its  tail  so  cut  and  with  the  wound  resulting  from  such 

8  cutting  unhealed,  upon  the  premises  or  in  the  charge  and  custody  of  any 

9  person,  such  fact  shall  be  prima  facie  evidence  of  a  violation  of  this 

10  section  by  the  owner  or  user  of  such  premises  or  the  person  having  such 

1 1  charge  or  custody,  respectively. 

1  Section  81.     Railroad  corporations  shall  not  permit  animals  carried  ^nfmifs"" 

2  or  transported  by  them  to  be  confined  in  cars  longer  than  twenty-eight  ig1-^'''2T''"|  5 

3  consecutive  hours  without  unloading  them  for  at  least  five  consecutive  isss'.  su.  §  3. 

4  hours  for  rest,  water  and  feeding,  unless  prevented  by  storm  or  accident.  §  142. 

5  In  estimating  such  confinement,  the  time  during  which  the  animals  have  r.  l.  212,  §  73. 

6  been  confined  without  such  rest  on  connecting  roads  from  which  they  are  ^^^  ^''^^'  *■*" 

7  received  shall  be  included.    Animals  so  unloaded  shall  during  such  rest 

8  be  properly  fed,  watered  and  sheltered  by  the  owner  or  person  having  the 

9  custody  of  them,  or,  in  case  of  his  default,  by  the  railroad  corporation 

10  transporting  them,  at  the  expense  of  said  owner  or  person  in  custody 

1 1  thereof.    In  such  case  the  corporation  shall  ha^•e  a  lien  upon  such  animals 

12  for  food,  care  and  custody  furnished,  and  shall  not  be  liable  for  such 

13  detention.    A  corporation,  owner  or  custodian  of  such  animals  failing  to 

14  comply  with  this  section  shall  be  punished  by  a  fine  of  not  less  than  one 
1.5  hundred  nor  more  than  five  hundred  dollars.    This  section  shall  not  apply 

16  to  animals  carried  in  cars  in  which  they  can  and  do  have  proper  food, 

17  water,  space  and  opportunity  for  rest. 


2776 


CRIMES  AG.traST  CH.iSTITY,   ETC.,   AND   GOOD   ORDER.      [Ch.\P.   272. 


^eftVto  Section  82.     A  person  found  A-iolating    any   provision    of    section 

isSTsw,  §  4.  seventy-seven  or  eighty-one  may  be  arrested  and  held  without  a  warrant 
R  1^^2/2^74  ^^  provided  in  section  fifty-four;  the  person  making  an  arrest  with  or 
without  a  warrant  shall  use  reasonable  diligence  to  give  notice  thereof  to 
the  owner  of  animals  found  in  the  charge  or  custody  of  the  person  arrested, 
shall  properly  care  and  provide  for  such  animals  until  the  owner  thereof 
takes  charge  of  them,  not,  however,  exceeding  sixty  days  from  the  date 
of  said  notice,  and  shall  have  a  lien  on  said  animals  for  the  expense  of 
such  care  and  provision. 

w^rant.  Section  83.     If  complaint  is  made  to  a  court  or  magistrate  authorized 

p*s^'207t'/57'  to  issue  warrants  in  criminal  cases  that  the  complainant  has  reasonable 
R.  L.  212,  §  75.  cause  to  believe  that  the  laws  relati\'e  to  cruelty  to  animals  have  been  or 
are  violated  in  any  particular  building  or  place,  such  court  or  magistrate, 
if  satisfied  that  there  is  reasonable  cause  for  such  belief,  shall  issue  a 
search  warrant  authorizing  any  sheriff,  deputy  sheriff,  constable  or  police 
officer  to  search  such  building  or  place;  but  no  such  search  shall  be  made 
after  sunset,  unless  specially  authorized  by  the  magistrate  upon  satisfac- 
tory cause  shown. 


Officers  to 
prosecute. 
Disposition 
of  fines- 

1868,  212.  § 

1869,  344,  § 
P.  S.  207.  § 
1S91,  304. 
R.  L.  212,  S 
2  Op.  A.  G. 
292. 

Op.  A.  G. 
(1920)  277. 


Section  84.  Sheriffs,  deputy  sheriffs,  constables  and  police  officers 
shall  prosecute  all  violations  of  sections  seventy-seven  to  eighty-one,  in- 
clusive, which  come  to  their  notice,  and,  upon  all  convictions  for  cruelty 
5S-  to  animals,  fines  collected  upon  or  resulting  from  the  complaint  or  informa- 
76.  tion  of  an  officer  or  agent  of  the  INIassachusetts  Society  for  the  Preven- 
tion of  Cruelty  to  Animals  shall,  except  as  provided  in  the  following 
section,  be  paid  to  said  society  after  deducting  therefrom  for  the  expense 
of  prosecution  such  amoimt  as  the  court  or  trial  justice  shall  order. 


1 
2 
3 

4 
5 
6 
7 
8 
9 

1 

2 
3 
4 
5 
6 
7 
8 
9 

1 
2 
3 

4 
5 
6 
7 
8 


Same  subject. 
1894,  4f.l,  §  4. 
R.  L.  212.  §  77 


Section  85.     One  half  of  all  fines  collected  upon  convictions  under  1 

section  eighty  upon  or  resulting  from  the  complaint  or  information  of  any  2 

officer  or  agent  of  the  INIassachusetts  Society  for  the  Prevention  of  Cruelty  3 

to  Animals  shall  be  paid  to  said  society.  4 


Stabling 
horse,  etc. 
above  first 
floor,  except, 

1916,  158. 
I§  1-3. 


Section  86.     ^Mioever  stables  a  horse  or  mule  on  the  second  or  any  1 

higher  floor  of  any  building,  unless  there  are  two  means  of  exit  therefrom,  2 

at  opposite  ends  of  the  building,  to  the  main  or  street  floor,  unless  such  3 

building  is  equipped  with  an  automatic  sprinkler  system,  shall  be  punished  4 

by  a  fine  of  not  more  than  two  hundred  dollars.  5 


Pigeon  shoot- 
ing, etc. 
1879.  187. 
P.  S.  207,  §  69. 
R.  L.  212,  §  78. 


Search  warrant 
for  fighting 
birds,  etc. 
1876,  85,  §  1. 
P.  S.  207,  §  60. 
R.  L.  212,  §  79. 
1918,  99.  §  1. 


Section  87.     ^Mioever  keeps  or  uses  any  live  bird,  to  be  shot  at  either  1 

for  amusement  or  as  a  test  of  skill  in  marksmanship,  or  shoots  at  a  bird  2 

kept  or  used  as  aforesaid,  or  is  a  party  to  such  shooting,  or  lets  any  3 

building,  room,  field  or  premises,  or  knowingly  permits  the  use  thereof,  4 

for  the  purpose  of  such  shooting,  shall  be  punished  by  a  fine  of  not  more  5 

than  fifty  dollars  or  by  imprisonment  for  not  more  than  one  month,  or  6 

both.     Nothing  herein  contained  shall  apply  to  the  shooting  of  wild  7 

game.  8 

Section  88.     If  complaint  is  made  to  a  court  or  magistrate  author-  1 

ized  to  issue  warrants  in  criminal  cases  that  the  complainant  has  reason-  2 

able  cause  to  believe  that  preparations  are  being  made  for  an  exhibition  3 

of  the  fighting  of  birds,  dogs  or  other  animals,  or  that  such  exliibition  is  4 

in  progress,  or  that  birds,  dogs  or  other  animals  are  kept  or  trained  for  5 


CRIMES   AGAINST   CHASTITY,   ETC.,   AND   GOOD   ORDER.  2777 

6  fighting  at  any  place  or  in  any  building  or  tenement,  such  court  or  magis- 

7  trate,  if  satisfied  that  there  is  reasonable  cause  for  such  belief,  shall  issue 

8  a  search  warrant  authorizing  any  sheriff,  deputy  sheriff,  constable  or 

9  police  officer,  or  special  police  officer  duly  appointed  by  the  governor  at 

10  the  request  of  the  Massachusetts  Society  for  the  Prevention  of  Cruelty 

11  to  Animals,  to  search  such  place,  building  or  tenement  at  any  hour  of 

12  the  day  or  night  and  take  possession  of  all  such  birds,  dogs  or  other 

13  animals  there  found,  and  arrest  all  persons  there  present  at  any  such 

14  exliibition  or  where  preparations  for  such  exliibition  are  being  made,  or 

15  where  birds,  dogs  or  other  animals  are  kept  or  trained  for  fighting. 

1  Section  89.     Any  officer  authorized  to  serve  criminal  process,  or  Entry  without 

2  special  police  officer  duly  appointed  by  the  governor  at  the  request  of  ?869"435''ri°.' 

3  the  Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Animals,  p^a'lo7,\l3i. 

4  may,  without  a  warrant,  enter  any  place,  building  or  tenement  in  which  J^il'gg^i  I*"' 

5  there  is  an  exliibition  of  the  fighting  of  birds,  dogs  or  other  animals, 

6  or  in  which  preparations  are  being  made  for  such  an  exhibition,  and  arrest 

7  all  persons  there  present  and  take  possession  of  and  remove  from  the 

8  place  of  seiziu-e  the  birds,  dogs  or  other  animals  engaged  in  fighting,  or 

9  there  found  and  intended  to  be  used  or  engaged  in  fighting,  or  kept  or 

10  trained  for  fighting,  and  hold  the  same  in  custody  subject  to  the  order 

11  of  court  as  hereinafter  provided. 

1  Section  90.     Persons  arrested  under  either  of  the  two  preceding  sec-  Persons 

2  tions  shall  be  kept  in  jail  or  other  convenient  place  not  more  than  twenty-  tlken'before" 

3  four  hours,  Sundays  and  legal  holidays  excepted,  at  or  before  the  ex-  ^sra^'^l.'  §  i. 

4  piration  of  which  time  they  shall  be  taken  before  a  district  court  or  a  p*"!' 207^§g2 

5  trial  justice  and  proceeded  against  according  to  law.         R.  l.  212,  §  si. 

1  Section  91.     After  such  seizure  and  removal  of  such  birds,  dogs  or  judsmentof  . 

2  other  animals,  application  shall  be  made  to  a  district  court  or  a  trial  proceedings'"' 

3  justice  for  a  decree  of  forfeiture  of  the  same;   and  if,  upon  the  hearing  JseiT.Tss,  §  2. 

4  of  such  application,  notice  thereof  having  been  previously  given  as  the  p*  g^'lg^y  \%j 

5  justice  or  court  orders,  it  shall  be  found  that  such  birds,  dogs  or  other  R-  l-  212,  §  82. 

6  animals,  or  any  of  them,  at  the  time  of  such  seizure  were  engaged  in 

7  fighting  at  an  exhibition  thereof,  or  were  owned,  kept,  possessed  or 

8  trained  by  any  person  with  the  intent  that  they  should  be  so  engaged, 

9  such  birds,  dogs  or  other  animals  shall  be  adjudged  forfeited  and  such 

10  justice  or  court  shall  thereupon,  unless  an  appeal  is  taken  as  provided 

11  in  the  following  section,  issue  an  order  for  killing  them,  which  shall  be 

12  directed  to  any  officer  authorized  to  serve  criminal  process;  and  the 

13  officer  receiving  said  order  shall  cause  such  birds,  dogs  or  other  animals 

14  to  be  killed  within  twenty-four  hours  thereafter.     Birds,;  dogs  or  other 

15  animals  seized  as  hereinbefore  provided,  which  are  not  adjudged  for- 

16  feited,  shall  be  delivered  to  the  owner  or  person  entitled  to  the  posses- 

17  sion  thereof.    Any  person  shall  be  allowed  to  appear  as  claimant  in  the 

18  proceeding  upon  the  application  for  a  decree  of  forfeiture. 

1  Section  92.     An  owner  or  claimant  aggrieved  by  such  judgment  ■\pr''^'^, 

2  may,  within  twenty-four  hours  after  the  entry  thereof  and  before  its  istg!  s.5,  '§  5. ' 

3  execution,  appeal  therefrom  to  the  superior  court;   and  all  proceedings  r.  l!  212!  I  s's." 

4  upon  and  after  such  appeal,  including  the  right  of  exception,  shall  con- 

5  form,  so  far  as  may  be,  to  those  in  criminal  cases,  except  that  before 

6  such  appeal  is  allowed  the  appellant  shall  recognize  to  the  commonwealth 


2778 


CRIMES  AGAINST   CHASTITY,   ETC.,   AND   GOOD   ORDER.      [Ch.\P.   272. 


in  the  sum  of  two  hundred  dollars,  with  suiEcient  sureties,  to  prosecute  his  7 

appeal  and  to  pay  such  expenses  of  the  prosecution  as  the  court  may  8 

order  and  such  expenses  as  may  be  thereafter  incurred  in  the  care  and  9 

keeping  of  tlie  birds,  dogs  or  other  animals  claimed  by  such  appellant  10 

if  final  judgment  is  rendered  against  them,  and  to  abide  the  judgment  11 

of  the  court  thereon.    Upon  the  final  judgment,  the  birds,  dogs  or  other  12 

animals  held  in  custody  to  abide  such  judgment  shall  be  disposed  of,  13 

under  the  direction  of  the  superior  court,  in  like  manner  as  the  court  or  14 

justice  might  have  disposed  of  them  if  no  appeal  had  been  taken.    During  15 

the  pendency  of  the  appeal,  all  birds,  dogs  or  other  animals  adjudged  16 

forfeited  shall  be  kept  in  custody  in  a  place  other  than  that  from  which  17 

they  were  taken.  18 


ra^'refefc,  o^f          Section  93.     The  necessary  expenses  incurred  in  the  care  and  de-  1 

isra^'^s  §  4     struction  of  such  birds,  dogs  and  other  animals  may  be  allowed  and  paid  2 

1870, 85, 1  6.     in  the  same  manner  as  expenses  in  criminal  prosecutions.  3 

p.  S.  207,  §  65.  R.  L.  212.  §  84. 


Penalty  on 
owner,  etc. 
1859,  158.  ?  1. 
G.  S.  88.  §  79. 
1869,  435.  §  5. 
1876,  85,  §  7. 
P.  S.  207,  §  66. 
E.  L.  212,  §  85. 


Penalty  for 
being  present  at 
exhibition,  etc. 
1859,  158,  §  2. 
G.  S.  88.  §  79. 
1869,  435,  §  6. 
1876,  85,  §  8. 
P.  S.  207,  §  67. 
E.  L.  212,  §  86. 
Op.  A.  G. 
(1920)  277. 


Section  94.     Whoever  owns,  possesses,  keeps  or  trains  a  bird,  dog  or  1 

other  animal,  with  intent  that  it  shall  be  engaged  in  an  exhibition  of  2 

fighting,  or  whoever  establishes  or  promotes  an  exhibition  of  the  fighting  3 

of  birds,  dogs  or  other  animals,  shall  be  punished  by  a  fine  of  not  more  4 

than  two  hundred  dollars  or  by  imprisonment  for  not  more  than  one  5 

year,  or  both.  6 

Section  95.     Whoever  is  present  at  any  place,  building  or  tenement  1 

where  preparations  are  being  made  for  an  exhibition  of  the  fighting  of  2 

birds,  dogs  or  other  animals,  with  intent  to  be  present  at  such  exhibition,  3 

or  is  present  at,  aids  in  or  contributes  to  such  exhibition,  shall  be  punished  4 

by  a  fine  of  not  more  than  twenty-five  dollars  or  by  imprisonment  for  5 

not  more  than  one  month,  or  both.  6 


ofb^th"  etc.  Section  96.     Whoever  wilfully  sends  to  the  publisher  of  a  newspaper     1 

p* s''2\k\i 68.   for  publication  a  false  notice  of  a  birth,  marriage  or  death  shall  be  pun-    2 

E.  L.  212,  §  87.    itilTfirl  K-\r  Q  finf»  r»f  nr»t  mnrA  tlinn  nnA  Vinnrlrprl  rlnllnrQ  3 


ished  by  a  fine  of  not  more  than  one  hundred  dollars. 


Costumed  debt 
collectors. 
1899,  238. 
E.  L.  212,  §  88. 

1918,  257, 
§464. 

1919,  5. 

1920,  2. 


Section  97.  A  director  or  officer  of  a  corporation  engaged  in  the  1 
business  of  a  collection  agency  or  in  making  collections  from  delinquent  2 
debtors  or  any  other  person  who  employs  persons,  dressed  in  unusual  3 
and  striking  costiunes  intended  to  attract  public  attention  to  the  occupa-  4 
tion  of  the  wearers,  to  call  upon  debtors  for  the  purpose  of  demanding  5 
paj^ments  of  debts  alleged  to  be  due,  and  whoever,  being  so  employed,  6 
calls  at  the  house  or  place  of  business  of  an  alleged  debtor,  wearing  such  7 
costume,  or  a  costume  having  an  inscription  adapted  to  attract  attention  8 
to  his  occupation,  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor  9 
more  than  five  hundred  dollars  or  by  imprisonment  in  jail  for  not  less  10 
than  three  months  nor  more  than  two  and  one  half  years.  11 


Color  or  race 
discrimination. 

1865,  277. 

1866,  252. 

P.  S.  207,  §  03. 
1885,  316. 
1893,  436. 
1895,  461. 
E.  L.  212,  §  89. 
13  Allen.  247. 
216  Mass.  344. 


Section  98.     Whoever  makes  any  distinction,  discrimination  or  re-  1 

striction  on  account  of  color  or  race,  except  for  good  cause  applicable  2 

alike  to  all  persons  of  every  color  and  race,  relative  to  the  admission  of  3 

any  person  to,  or  his  treatment  in,  a  theatre,  skating  rink  or  other  public  4 

place  of  amusement,  licensed  or  unlicensed,  or  in  a  public  con-\-eyance  or  5 

public  meeting,  or  in  an  inn,  barber  shop  or  other  public  place  kept  for  6 


CH.4.P.   272.]      CRIilES   AGAINST  CHASTITY,   ETC.,   AND   GOOD   ORDER.  2779 

7  hire,  gain  or  re-n-ard,  licensed  or  unlicensed,  or  whoever  aids  or  incites 

8  such  distinction,  discrimination  or  restriction,  shall  be  punished  by  a 

9  fine  of  not  more  than  three  hundred  dollars  or  by  imprisonment  for  not 

10  more  than  one  year,  or  both,  and  shall  forfeit  to  any  person  aggrieved 

11  thereby  not  less  than  twenty-five  nor   more  than  three  hundred  dol- 

12  lars;  but  such  person  so  aggrieved  shall  not  recover  against  more  than 

13  one  person  by  reason  of  any  one  act  of  distinction,  discrimination  or 

14  restriction. 

1  Section  99.     Whoever,  except  when  authorized  by  written  permis-  Eavesdropping. 

2  sion  of  the  attorney  general  of  the  commonwealth,  or  of  the  district  at-  ^^'^°'  ^^®'  ^  ^' 

3  torney  for  the  district,  secretly  overhears,  or  attempts  secretly  to  over- 

4  hear,  or  to  have  any  other  person  secretly  overhear,  any  spoken  words 

5  in  any  building  by  using  a  device  commonly  known  as  a  dictagraph  or 

6  dictaphone,  or  however  otherwise  described,  or  any  similar  device  or 

7  arrangement,  or  by  tapping  any  wire,  with  intent  to  prociu-e  information 

8  concerning  any  official  matter  or  to  injure  another,  shall  be  guilty  of  the 

9  crime  of  eavesdropping  and  shall  be  punished  by  imprisonment  for  not 

10  more  than  two  years  or  by  a  fine  of  not  more  than  one  thousand  dollars, 

11  or  both. 

1       Section  100.     Whoever,  except  when  authorized  under  the  preced-  Accessory  to 
Z  mg  section,  either  on  his  own  account  or  as  the  servant  or  agent  of  an-  1920,  sss,  §  2. 

3  other,  permits  or  acquiesces  in  the  installing  of  a  device  commonly  known 

4  as  a  dictagraph  or  dictaphone  or  any  similar  device  or  arrangement,  or 

5  the  tapping  of  any  wire,  with  intent  to  procure  or  knowing  or  intending 

6  that  it  will  be  used  to  procure  information  concerning  any  official  matter 

7  or  to  injure  another,  shall  be  punished  by  imprisonment  for  not  more 

8  than  two  years  or  by  a  fine  of  not  more  than  one  thousand  dollars,  or 

9  both. 

1  Section  101.     Proof  of  the  installation  in  any  building  of  any  device  Prjma  facie 

2  or  arrangement  which  may  be  used  for  the  purpose  of  violating  the  pro-  iSoi'Ms,  §  3. 

3  visions  of  section  ninety-nine  by  listening  to  any  spoken  words  or  proof 

4  of  the  tapping  of  any  wue,  unless  duly  authorized  and  unless  done  with 

5  the  consent  of  the  owner  or  person  in  control  of  the  building,  shall  be 

6  prima  facie  evidence  of  the  commission  of  the  crime  of  eavesdropping; 

7  but  nothing  contained  in  this  or  the  two  preceding  sections  shall  render  it 

8  unlawful  for  any  person  to  install  and  use  such  a  device  on  premises 

9  under  his  exclusive  control. 

1  Section  102.     The  three  preceding  sections  shall  not  apply  to  a  cor-  Towhomsec- 

2  poration  subject  to  the  jurisdiction  of  the  department  of  public  utilities  not'lppii'c°ab?i. 

3  of  the  commonwealth  or  to  the  jurisdiction  of  the  interstate  commerce  ^^'°-  *^*'  ^  ^' 

4  commission,  or  to  the  employees  of  any  such  corporation  while  engaged 

5  in  the  conduct  of  its  business. 

references. 

Complaint  for  keeping  or  depositing  opium  and  other  drugs,  Chap.  94,  §  214. 

Complaint  for  desertion,  nou-support,  etc.,  of  wife  or  minor  child,  Chap.  273. 

Arrest  without  warrant  for  misdemeanor  committed  in  or  on  rivers,  etc.,  Chap. 
91,  §  58. 

Penalty  for  passing  through  cemeteries,  etc.,  Chap.  114,  §  42. 

Penalty  for  discrimination  at  theatres,  etc.,  against  persons  in  United  States  uni- 
forms. Chap.  264,  §  10. 

Throwing  glass  on  a  public  way,  etc.,  Chap.  265,  §  32. 


27S0 


DESERTION,   NON-SUPPORT  .VNT)  BAST.\RDY. 


[ClL\P.   273. 


CHAPTER    273 


DESERTION,   NON-SUPPORT  AND   BASTARDY. 


Sect. 


Wn'ES    AND    CHILDREN. 


10. 


Offences  and  punishment. 

Jurisdiction  and  venue. 

Fines  may  be  used  for  support. 

Orders  pendente  lite. 

Orders  for  payment. 

Recognizances.     Forfeited     bail,     etc., 

may  be  used  for  support. 
Evidence. 

Want  of  custody  of  child  no  defence. 
Pa>Tnent  for  labor  of  con'vict. 
Uniformity  of  construction. 


B.\STARDT. 

11.  Getting  woman  with  child.     Jurisdic- 

tion and  venue. 

12.  Adjudication    of    paternity.      Appeal. 

New  trial. 


Sect. 

13.  Adjournments.    Confinement  expenses. 

14.  Custody  of  child. 

15.  Non-support  of  child. 

16.  Penalties,  orders  and  practice  like  those 

prodded  for  cases  of  legitimate  chil- 
dren. 

17.  Dismissal,  when  allowed.     Effect. 

18.  Forfeited  bail  may  be  used  for  support. 

19.  Cannot    proceed    after    bastardy    pro- 

ceedings under  former  law. 


DESTITUTE   PARENTS. 

20.  Offence  and  punishment. 

21.  Jurisdiction  and  venue. 

22.  Orders  and  practice  like  those  provided 

for  cases  of  wives  and  children. 


Offences  and 
punishment. 
18S2,  270,  §  4. 

1554,  210,  §  1. 

1555,  176,  I  1. 
1S93,  262. 
1S99,  309.  §  1. 
R.  L.  212,  §  43. 
190,5,  307. 

1906,  501,  §  1. 

1907,  563,  §  25. 
190S,  104. 
1909,  180. 
1911,456,  5  1. 
136  Mass.  435. 

156  Mass.  4S5. 

157  Mass.  73. 
165  Mass.  356. 
197  Mass.  91. 
220  Mass.  336. 
223  Mass.  62. 


Jurisdiction 
and  venue. 
1906,  501,  §  5. 
1911,  456,  §  3. 
197  Mass.  91. 


Fines  may 
be  used  for 
support. 
1S84,  210,  §  1. 
1885,  176,  §  1. 
1893.  262. 
R.  L.  212,  §  45. 

1905,  307. 

1906,  501,  §  2. 

1907,  563,  5  26. 

1908,  104. 


WR'ES   AND    CHILDREN. 

Section  1.  Any  husband  who  without  just  cause  deserts  his  wife  1 
or  minor  child,  whether  by  going  into  another  town  in  tlie  common-  2 
wealth  or  into  another  state,  and  leaves  them  or  any  or  either  of  them  3 
without  making  reasonable  provision  for  their  support,  and  any  husband  4 
who  unreasonably  neglects  or  refuses  to  provide  for  the  support  and  5 
maintenance  of  his  wife  or  minor  child,  and  any  husband  who  abandons  6 
or  leaves  his  wife  or  minor  child  in  danger  of  becoming  a  burden  upon  7 
the  public,  and  any  parent,  whether  father  or  mother,  who  deserts  or  wil-  8 
fully  neglects  or  refuses  to  provide  for  the  support  and  maintenance  of  9 
his  or  her  child  under  the  age  of  sixteen,  or  whose  minor  child  by  reason  10 
of  the  neglect,  cruelty,  drunkenness,  habits  of  crime  or  other  vice  of  such  11 
parent  is  growing  up  without  education,  or  without  salutary  control,  12 
or  without  proper  physical  care  or  in  circumstances  exposing  such  child  13 
to  lead  an  idle  and  dissolute  life,  shall  be  punished  by  a  fine  of  not  more  14 
than  two  hundred  dollars  or  by  imprisonment  for  not  more  than  one  15 
year,  or  both.  16 

Section  2.     Proceedings  under  the  preceding  section  shall  be  begun,  1 

if  in  the  superior  court,  in  the  county  in  which  is  situated  the  place  2 

where  the  husband  and  \nfe  last  li\'ed  together  or  where  the  husband  3 

or  ^^^fe  or  parent  of  the  child  is  li\ing,  and,  if  begun  in  a  district  court  4 

or  before  a  trial  justice,  in  the  court  or  before  the  trial  justice  hanng  5 

such  place  within  its  or  his  judicial  district.  6 

Section  3.     The  court  imposing  a  fine  under  section  one  may  at  any  1 

time  order  it  paid  in  whole  or  in  part  to  a  probation  officer,  to  be  paid  2 

by  him  to  the  wife  or  to  the  city,  town,  corporation,  society  or  person  3 

actually  supporting  the  wife,  child  or  children,  or  to  the  state  treasurer  4 

for  the  u.se  of  the  department  of  public  welfare  if  the  child  has  been  5 

committed  to  said  department.  i9ii,  456,  §  2.  loio,  350, 1  s7.  6 


ClL^-P.   273.]  DESERTION,   NON-StTPPORT  AND   BASTARDY.  2781 

1  Section  4.     At  any  time  before  trial,  upon  motion  of  the  complainant  Orders 

2  or  district  attorney  and  upon  notice  to  the  defendant,  the  court  may  i9u,  466,  §  4. 

3  enter  such  temporary  order  as  may  seem  just,  providing  for  the  support 

4  of  the  wife,  or  children,  or  both,  pendente  lite,  and  may  punish  any  viola- 

5  tion  of  such  order  as  for  contempt. 

1  Section  5.     Before  trial,  with  the  consent  of  the  defendant,  or  after  orders  for 

2  entry  of  a  plea  of  guilty  or  nolo  contendere,  or  after  conviction,  if  the  i905?307. 

3  defendant  is  placed  on  probation,  with  or  without  suspension  of  the  exe-  §§°3;|°^" 

4  cution  of  a  sentence,  the  court,  having  regard  to  the  circumstances  and  J^o^'  J^s,  5  26. 

5  to  the  financial  ability  or  earning  capacity  of  the  defendant,  may  make  isiiiwo, 

6  an  order,  which  shall  be  subject  to  change  from  time  to  time  as  circum-  iqh',  520. 

7  stances  may  recjuire,  directing  the  defendant  to  pay  certain  sums  periodi-  §§  453. 454. 

8  cally,  for  a  term  not  exceeding  two  years,  to  the  probation  officer,  and  may  |®S7^;  ^'  ^"'  ' 

9  release  the  defendant  from  custody  on  probation.    The  probation  officer,  ^^-°'  ^• 

10  subject  to  the  direction  of  the  court,  shall  pay  over  payments  received 

11  by  him  to  the  wife  or  guardian  or  custodian  of  the  child,  or  to  the  city, 

12  town,  corporation,  society  or  person  supporting  the  wife  or  child,  or  to 

13  the  state  treasurer  for  the  use  of  the  department  of  public  welfare  when 

14  the  payments  are  for  the  support  of  a  child  committed  to  it.    If  the  court 

15  be  satisfied  by  due  proof  under  oath  that  at  any  time  the  defendant  has 

16  violated  the  terms  of  the  order  for  payments,  it  may  proceed  to  try  the 

17  defendant  upon  the  original  charge,  or  sentence  him  under  the  origi- 

18  nal  plea  or  conviction,  or  enforce  the  suspended  sentence,  as  the  case 

19  may  be. 

1  Section  6.     The  court,  in  releasing  a  defendant  from  custody  on  pro-  Recognizances. 

2  bation,  may  in  its  discretion  require  him  to  enter  into  a  recognizance,  et",maybe'' 

3  with  or  without  surety,  in  such  sum  as  the  court  may  order.    The  con-  "uppoH. 

4  dition  of  the  recognizance  shall  be,  that  if  the  defendant  shall  make  his  p'g''||'|4' 

5  personal  appearance  in  court,  whenever  ordered  to  do  so,  and  shall  comply  R  l.  |2.  §  -i. 

6  with  the  order  for  payments,  and  with  any  change  therein,  then  the  recog-  woe,  601', 

7  nizance  shall  be  void,  but  otherwise  shall  be  and  remain  of  full  force  and  1907,  sV.a,  §  20. 

8  effect.     Suit  may  be  brought  upon  such  recognizance  by  the  district  1911;  531*456, 

9  attorney  or  any  other  person  authorized  by  the  coiu't.    If  the  defendant  His.srs,  §9. 

10  is  admitted  to  bail  pending  trial,  and  the  bail  is  forfeited,  or  if  a  recogni-  J^m,  620.  ^^^ 

11  zance  under  this  section  is  forfeited,  the  court  may  order  that  the  money  ||*^^; *^''- 

12  forfeited  or  recovered  be  paid  in  whole  or  in  part  to  a  probation  officer,  1920;  2! 

13  to  be  paid  by  him  as  provided  in  the  preceding  section. 

1  Section  7.     No  other  or  greater  evidence  shall  be  required  to  prove  Evidence. 

2  the  marriage  of  the  husband  and  wife,  or  that  the  defendant  is  the  parent  u^l'.fii'JiL 

3  of  the  child,  than  may  be  required  to  prove  the  same  facts  in  a  civil  action.  Jg^l;  |oi;  5 , 

4  In  any  prosecution  begun  under  section  one,  both  husband  and  wife  J^o^-  ^Jj|'  ^  ^^■ 

5  shall  be  competent  witnesses  to  testify  against  each  other  to  any  relevant  1009'.  iso. 

6  matters,  including  the  fact  of  their  marriage  and  the  parentage  of  the  219  Mass!  197. 

7  child;    provided,  that  neither  shall  be  compelled  to  give  evidence  in- 

8  criminating  himself.    Proof  of  the  desertion  of  the  wife  or  child,  or  of  the 

9  neglect  or  refusal  to  make  reasonable  provision  for  their  support  and 

10  maintenance,  shall  be  prima  facie  evidence  that  such  desertion,  neglect 

11  or  refusal  is  wilful  and  without  just  cause.     In  no  prosecution  under 

12  sections  one  to  ten,  inclusive,  shall  any  existing  statute  or  rule  of  law 

13  prohibiting  the  disclosure  of  confidential  communications  between  hus- 

14  band  and  wife  apply. 


2782 


DESERTION,   NON-SUPPORT  .\NT)   BASTARDY. 


[ClLiP.   273. 


Want  of 
custody  of 
child  no 
defence. 
1917,  163. 
1918,257.5455. 
1919,  5;  148. 


Section  8.     In  proceedings  under  section  one  against  a  parent,  rela-  1 

tive  to  any  minor  child,  it  shall  not  of  itself  be  a  defence  that  the  de-  2 

fendant  has  ceased  to  have  custody  or  the  right  to  custody  of  such  child  3 

on  his  own  acquiescence  or  by  judicial  action.  1920,2.  4 


Payment  for 
labor  of  con- 
vict. 

1911,  456,  §  8. 

1912,  264;  310. 


Section  9.  If  the  court  imposing  a  sentence  under  section  one,  1 
finds  the  wife  or  child,  as  the  case  may  be,  of  the  defendant  to  be  in  des-  2 
titute  or  needy  circumstances,  the  superintendent,  master  or  keeper  of  3 
the  reformatory  or  penal  institution  where  he  is  confined  upon  such  sen-  4 
tence  shall  pay  over  to  the  probation  officer  of  such  court  at  the  end  of  5 
each  week,  out  of  the  annual  appropriation  for  the  maintenance  of  such  6 
reformatory  or  penal  institution,  a  sum  equal  to  fifty  cents  for  each  day's  7 
hard  labor  performed  by  the  person  so  confined,  and  shall  state  the  name  8 
of  the  person  for  whose  labor  the  payment  is  made.  The  probation  9 
officer  shall  pay  over  said  sum  in  the  manner  pro\ided  in  section  five  for  10 
the  payments  therein  provided  for.  11 


Uniformity  of        Section  10.    The  niuc  preceding  sections  shall  be  so  interpreted  and  1 

construction.  ^     ,  <=•  .pii 

1911, 456.  §  9.    construed  as  to  effectuate  their  general  purpose  to  make  uniform  the  law  2 

of  those  states  enacting  their  provisions.  3 


Getting 
woman  with 
child.     Juris- 
diction and 
venue. 

C.  L.  55,  I  2. 
1692-3,  IS,  §  5. 
1785,  66,  §  2. 
R.  S.  49,  §  1. 
1851,  96, 
5«  1,  2. 
1853,  57,  I  11. 


BAST.ARDT. 

Section  11.     Whoever,  not  being  the  husband  of  a  woman,  gets  her  1 

■^•ith  child  shall  be  guilty  of  a  misdemeanor.     Proceedings  under  this  2 

section  or  any  of  the  eight  following  sections  shall  be  begun,  if  in  the  3 

superior  court,  in  the  county  in  which  is  situated  the  place  where  the  4 

defendant  or  the  mother  of  the  illegitimate  child  lives,  and,  if  begun  5 

in  a  district  court,  in  the  court  ha\'ing  such  place  witliin  its  judicial  6 

district.  7 


1857,  300,  §  1. 
1859,  2.39,  §§  1.  2,  6. 
G.  S.  72,  §§  1,  3,  13. 
1863.  127.  §  5. 
P.  S.  85.  §§  1,  3,  22. 
1885,  289. 


E.  L.  82,  §§  1,  3,  22. 

1904,  159. 

1913,  563.  §§  1,  9. 

3  Met.  209. 

13  Met.  372. 

15  Gray,  SO. 


4  .\IIen,  365. 
193  Mass.  528. 
229  Mass.  157. 

235  Mass.  383. 

236  Mass.  362. 


Adjudication 
of  paternity. 
Appeal. 
New  trial. 
C.  L.  55,  §  2. 
1G92-3,  18,  §  5. 
1785,  66,  §  2. 
R.  S.  49,  §  4. 
G.  S.  72,  §  7. 
1863,  127,  §  2. 
P.  S.  8.5. 
§§  7,  15. 
1885,  384,  §  5. 
R.  L.  82, 
§1  7,  15. 
1913.  563, 
§§  2,  9. 
103  Mass.  50. 
112  Mass.  60. 
194  Mass.  291. 


Section  12.  If  the  defendant  pleads  guilty  or  nolo  contendere,  or  is  1 
found  guilty,  the  court  shall  enter  a  judgment  adjudging  him  the  father  2 
of  the  cliild;  but  such  adjudication  shall  not  be  made  after  a  plea  of  not  3 
guilty,  against  the  objection  of  the  defendant,  until  the  child  is  born  4 
or  the  court  finds  that  the  mother  is  at  least  six  months  pregnant.  At  5 
the  sitting  when  such  adjudication  is  made  by  a  district  court,  if  made  6 
after  a  plea  of  not  guilty,  the  defendant  may  appeal  therefrom  to  the  7 
superior  court  as  in  other  criminal  cases.  The  adjudication,  whether  any  8 
sentence  be  imposed  or  not,  shall  be  final  and  conclusive  unless  an  appeal  9 
therefrom  be  taken  as  hereinbefore  provided,  or,  if  such  adjudication  10 
be  made  by  the  superior  court,  unless  set  aside  upon  an  appeal  taken  11 
not  later  than  three  days  thereafter  under  section  twenty-eight  of  chap-  12 
ter  two  hundred  and  seventy-eight  or  upon  exceptions.  Such  adjudica-  13 
tion  may  be  entered  by  the  superior  court  notwithstanding  exceptions  14 
have  been  alleged  or  an  appeal  has  been  taken.  The  court  making  the  15 
adjudication  may  within  one  year  thereafter  grant  a  new  trial  for  any  16 
cause.  17 


•Adjournments. 
Confinement 


Section  13.     No  law  limiting  adjournments  or  continuances  shall     1 
legl-iris,  §  5.  ^PP'y  to  any  proceedings  under  sections  eleven  to  nineteen,  inclusive.     2 


CbLVP.   273.]  DESERTION,   NON-SUPPORT  AND   BAST.VRDV.  2783 

3  If  the  child  has  not  been  born  at  the  time  of  the  adjudication,  the  court  J^ss.  ^^■^^■ 

4  shall  continue  the  case  from  time  to  time  until  the  child  is  born.    At  g'.  s.  72!  §  5. 

5  any  time  after  adjudication,  after  inquiring  into  the  respective  means  p.  s.'s5,'' 

6  of  the  defendant  and  the  mother,  the  court  haxing  jurisdiction  of  the  il/i'.se?. 

7  case  may  make  an  order  for  the  paj-ment  to  the  mother  or  to  a  probation  ^j-  g-  ff; 

8  officer  of  a  sum  of  money  determined  by  the  court  for  the  expenses  of  ||^|'|®f' 

9  the  confinement  of  the  mother,  and  for  failure  to  comply  therewith  may 

10  order  the  defendant  committed  to  jail,  as  for  a  contempt  of  court,  for  a 

11  term  not  exceeding  two  months,  unless  he  shall  sooner  comply  with  such 

12  order. 

1  Section  14.     After  the  adjudication,  the  court  may  make  such  order  Custody  of 

2  as  may  be  considered  expedient  relative  to  the  care  and  custody  of  the  1913,'  ses,  §  5. 

3  child,  and  from  time  to  time  may  revise  and  alter  said  order,  as  justice 

4  and  the  welfare  of  the  child  require,  which  order  shall  be  binding  on  all 

5  persons. 

1  Section  15.     Any  father  of  an  illegitimate  child,  whether  begotten  Non-support 

2  within  or  without  the  commonwealth,  who  neglects  or  refuses  to  contribute  c.  l.'s5.  §  2. 

3  reasonably  to  its  support  and  maintenance,  shall  be  guilty  of  a  misde-  i785r6'o.^§'2^.  ^' 

4  meaner.    If  there  has  been  any  final  adjudication  of  the  paternity  of  the  g- 1- 1|'  1 1- 

5  child,  such  adjudication  shall  be  conclusive  on  all  persons  in  proceedings  ?•  s.  ss^  §15^ 

6  under  this  section;   otherwise,  the  question  of  paternity  shall  be  deter-  i9i3,'  sea, 

7  mined  in  proceedings  hereunder.    The  duty  to  contribute  reasonably  to  5  Mass.  sn. 

8  the  support  of  such  child  shall  continue  during  its  minority.  '°'^  '"^^ 

112  Mass.  60.  223  Mass.  150. 

1  Section  16.     After  the  adjudication  and  the  birth  of  the  child,  in  Penalties. 

2  proceedings  under  section  eleven,  or  after  conviction,  in  proceedings  practice  uke 

3  under  the  preceding  section,  the  defendant  shall  be  subject  upon  the  for  clfeTol'*^'^ 

4  original  complaint  or  indictment  in  such  proceedings  to  penalties  and  Jfifjjdren*^ 

5  orders  for  paj-ments  similar  to  those  provided  by  the  first  ten  sections  9gg2L3*j|  \  5 

6  of  this  chapter;    and  the  practice  established  thereby  shall,  so  far  as  i7S5,  ee.  §' 2. 

7  applicable,  apply  to  any  proceedings  under  sections  eleven  to  nineteen,  k.  s.'49, ' 

8  inclusive.  is57, 305.  §§  1, 2.  *^  ^'  *'  ®" 

1859,  239,  §  4.  P.  S.  85,  §§  4,  15,  16,  21.  1913,  5fi3,  §§  6,  7,  9. 

G.  S.  72,  §§  7,  8,  12.  R.  L.  82.  §§  4,  15,  16,  21.  219  Mass.  197. 

1871,42,  §1.  1911,53. 

1  Section  17.     If  the  court  having  jurisdiction  of  any  case  under  sec-  Dismissal, 

2  tions  eleven  to  nineteen,  inclusive,  or  any  of  them,  becomes  satisfied  Effect*  "'"^  " 

3  that  no  living  child  will  be  born  of  which  the  defendant  at  the  time  of  J^^'tF'  ^  ^• 

4  making  the  complaint  was  the  father,  or  that  the  defendant  and  the  ||g|'  i^^ 

5  mother  have  married  each  other  and  the  child  has  become  or  will  be  the  ^'^''g^'gig"' 

6  legitimate  child  of  the  defendant,  or  that  adequate  provision  has  been  i§  12,17-19. 

7  made  for  its  maintenance,  the  case  may  be  dismissed  and  any  adjudica-  r.lI 82^ ' 

8  tion  vacated;    and  if  the  court  certifies  that  such  pro\-ision  has  been  llosisVs!^^' 

9  made,  no  further  prosecution  shall  be  maintained  under  any  of  said  jl'l;!*^^' 

10    sections.  4Allen,  59.  121  Mass.  533. 

1  Section  18.     If  money  is  forfeited  or  recovered  upon  a  recognizance  Forfeited  bail 

2  or  deposit  in  lieu  thereof  gi\-en  in  proceedings  under  sections  eleven  to  "or^sup^port. 

3  nineteen,  inclusive,  or  any  of  them,  the  court  in  which  such  proceedings  p^f'ss^'^i  7.^' 

4  are  pending  may  order  such  money  paid  to  the  probation  officer  and  5^ii3;?,?,3f  jg. 

5  expended  by  him,  under  the  direction  of  the  court,  for  the  support  of  i9is,  199. 

6  the  child. 


2784 


FELONIES,   ACCESSORIES   -tXD  ATTEMPTS. 


[Ch.U'.   274. 


StCT  bL'ta°rfy'^      Section  19.     No  proceedings  shall  be  maintained  under  any  of  the  1 

undsf/^rmer     ^iglit  preceding  sections  in  any  case  where  bastardy  proceedings  were  2 

law.                begun  before  July  first,  nineteen  hundred  and  thirteen.  3 

1913.  563,  §§  7,  9.  229  Mass.  157. 


DESTITUTE   PARENTS. 


Section  20.     Any  person,  over  twenty-one,  who,  being  possessed  of 


offence  and 
punishment. 

223\/ass'  150    Sufficient  means,  unreasonably  neglects  or  refuses  to  provide  for  the 
4  Op.  A.  G.  613.  support  and  maintenance  of  his  parent,  whether  father  or  mother,  re- 
siding in  the  commonwealth,  when  such  parent  tlirough  misfortune  and 
without  fault  of  his  own  is  destitute  of  means  of  sustenance  and  unable 


Jurisdiction 
and  venue. 
1915,  163,  §  3. 


by  reason  of  old  age,  infirmity  or  illness  to  support  and  maintain  himself, 
shall  be  punished  by  a  fine  of  not  more  than  two  hundred  dollars  or 
by  imprisonment  for  not  more  than  one  year,  or  both.  No  such  neglect 
or  refusal  shall  be  deemed  unreasonable  as  to  a  child  who  shall  not  9 
during  his  minority  have  been  reasonably  supported  by  such  parent,  if  10 
such  parent  was  charged  with  the  duty  so  to  do,  nor  as  to  a  child  who,  11 
being  one  of  two  or  more  children,  has  made  proper  and  reasonable  12 
contribution  toward  the  support  of  such  parent.  13 

Section  21.     Proceedings  under  the  preceding  section  shall  be  begun,  1 

if  in  the  superior  court,  in  the  county  in  which  is  situated  the  place  where  2 

the  defendant  or  the  parent  lives,  and,  if  begun  in  a  district  court,  in  3 

the  court  ha\ing  such  place  T\'ithin  its  judicial  district.     Complaints  in  4 

district  courts  under  the  preceding  section  may  be  made  by  any  such  5 

parent,  by  any  child  of  such  parent,  by  the  overseers  of  the  poor  of  the  6 

town  where  such  parent  has  a  settlement,  or  by  any  other  public  relief  7 

officer.  8 


Orders  and 
practice  like 
those  provided 
for  cases 
of  wives  and 
children. 
1915,  163,  I  2. 


Section  22.     Before  trial,  with  the  consent  of  the  defendant,  or  after  1 

entry  of  a  plea  of  guilty  or  nolo  contendere,  or  after  conviction,  the  court  2 

may  make  for  the  benefit  of  such  destitute  parent  orders  similar  to  those  3 

pro\'ided  by  section  five;    and  the  practice  established  by  the  first  ten  4 

sections  of  this  chapter  shall,  so  far  as  applicable,  apply  to  proceedings  5 

under  this  and  the  two  preceding  sections.  6 


CHAPTER    274 


FELONIES    ACCESSORIES  AND  ATTEMPTS  TO  COMMIT  CRIMES. 


Sect. 

1.  Felony  and  misdemeanor. 

2.  Accessory  before  the  fact. 

3.  Accessory  before  the  fact.     When  and 

how  tried. 


Sect. 

4.  Accessorj-  after  the  fact. 

5.  Accessory  after  the  fact.     How,  when 

and  where  tried. 

6.  Attempt  to  commit  crime. 


A  crime  punishable  by  death  or  imprisonment  in  the     1 

2 


Felony  and  SeCTION    1 

misdemeanor.  OU^IIU-^     1. 

1852,37  §  1      state  prison  is  a  felony.    All  other  crimes  are  misdemeanors. 

p.  S.  210,  5  1.  11  Allen,  243.  206  Mass.  417. 

R.  L.  215,  §  1.  151  Mass.  96. 


Accessory  be- 
fore the  fact. 
1784,65,  §  1; 
66,  §  9. 


Section  2.     'NMioever  aids  in  the  commission  of  a  felony,  or  is  ac-    1 
cessory  thereto  before  the  fact  by  counselling,  hiring  or  otherwise  pro-    2 


Chap.  274.]  felonies,  accessories  and  attempts.  2785 

3  ciiriiiii  such  felony  to  be  committed,  shall  be  punished  in  the  manner  iso4,  i3i,  §  i. 

4  provided  for  the  punishment  of  the  principal  felon.  .  g.  s.  les,  §  3.  ^'  ^'  ^^^'  ^  ^^ 

P.'S.  210,  §  3.  R.  L.  215,  §  2.  127  Mass.  15.  221  Mass.  43. 

1  Section  3.     Whoever  counsels,  hires  or  otherwise  procures  a  felony  Accessory 

2  to  be  committed  may  be  indicted  and  con^■icted  as  an  accessory  be-  wh°enandhow 

3  fore  the  fact,  either  with  the  principal  felon  or  after  his  conviction;   or  Jslo,^, 

4  may  be  indicted  and  convicted  of  a  substantive  felony,  whether  the  fj^g'igg 

5  principal  felon  has  or  has  not  been  convicted,  or  is  or  is  not  amenable  §§2,3; 

6  to  justice;   and  in  the  last  mentioned  case  may  be  punished  in  the  same  §§4,' 5,  ' 

7  manner  as  if  convicted  of  being  an  accessory  before  the  fact.    An  acces-  Tm,  5^°' 

8  sory  to  a  felony  before  the  fact  may  be  indicted,  tried  and  punished  .in  fe  Ma^sl^^s^' 

9  the  same  county  where  the  principal  felon  might  be  indicted  and  tried,  fi^ll^en,  ms 

10  although  the  counselling,  hiring  or  procuring  the  commission  of  such  Jos  Mass' i?*' 

11  felony  was  committed  within  or  \nthout  this  commonwealth  or  on  the  iiiMasl:395. 

TO    1  •    1  114  Mass.  307. 

12  high  seas. 

1  Section  4.     ^^^aoever,  not  a  husband  or  wife,  or,  by  consanguinity,  Accessory  after 

2  affinity  or  adoption,  the  parent  or  grandparent,  child  or  grandchild,  i7ll%,  §  2; 

3  brother  or  sister  of  the  offender,  after  the  commission  of  a  felony,  j8ol,^i23,  §  2- 

4  harbors,  conceals,  maintains  or  assists  the  principal  felon  or  accessory  I^^q'^^'  "^' 

5  before  the  fact,  or  gives  such  offender  any  other  aid,  knowing  that  he  iso5.97,  §2; 

6  has  committed  a  felony  or  has  been  accessory  thereto  before  the  fact,  R  s  133,  §  4. 

7  with  intent  that  he  shall  avoid  or  escape  detention,  arrest,  trial  or  punish-  is7g,2*i3,^§^7. 

8  ment,  shall  be  an  accessory  after  the  fact,  and,  except  as  otherwise  pro-  r.l.2'i°s,§4. 

9  vided,  be  punished  by  imprisonment  in  the  state  prison  for  not  more  f^^^  ^^''■ 

10  than  seven  years  or  in  jail  for  not  more  than  two  and  one  half  years  or  j^J^'^- 

11  by  a  fine  of  not  more  than  one  thousand  dollars. 

1  Section  5.     An  accessory  to  a  felony  after  the  fact  may  be  indicted,  ^ft^r'th^fact 

2  convicted  and  punished,  whether  the  principal  felon  has  or  has  not  How,  when  and 

3  been  previously  convicted,  or  is  or  is  not  amenable  to  justice,  either  in  isao,  49,  §  3. 

4  the  county  where  he  became  an  accessory  or  in  the  county  where  the  a',  s.  les!  1 7'. 

5  principal  felony  was  committed.  p.  s.  210,  §  7.  r.  l.  215.  §  s. 

1  Section  6.     ^^^loever  attempts  to  commit  a  crime  by  doing  any  Attempt  to 

2  act  toward  its  commission,  but  fails  in  its  perpetration,  or  is  intercepted  ^S-STm!^"™^' 

3  or  prevented  in  its  perpetration,  shall,  except  as  otherwise  provided,  §  g  Hf  |  g^- 

4  be  punished  as  follows:  p.  s.  210,  §8. 

R.  L.  21.5,  §  6.  107  Mass.  225.  177  Mass.  267. 

1911,  130.  123  Mass.  422.  188  Mass.  330. 

10  Met.  422.  140  Mass.  451.  210  Mass.  445. 

3  Gush,  529.  143  Mass.  32.  213  Mass.  225. 

5  Cush.  365.  149  Mass.  229.  215  Mass.  209. 

105  Mass.  162,  169,  460.              170  Mass.  18.  235  Mass.  357. 

5  First,  by  imprisonment  in  the  state  prison  for  not  more  than  ten 

6  years,  if  he  attempts  to  commit  a  crime  punishable  with  death. 

7  Second,  by  imprisonment  in  the  state  prison  for  not  more  than  five 

8  years  or  in  jail  for  not  more  than  one  year,  if  he  attempts  to  commit  a 

9  crime  punishable  by  imprisonment  in  the  state  prison  for  life  or  for  five 

10  years  or  more. 

1 1  Third,  by  imprisonment  in  jail  for  not  more  than  one  year  or  by  a  fine 

12  of  not  more  than  three  hundred  dollars,  if  he  attempts  to  commit  a  crime 

13  punishable  by  imprisonment  in  the  state  prison  for  less  than  five  years 

14  or  by  imprisonment  in  jail  or  by  a  fine. 


2786 


PROCEEDINGS  TO   PRE'S'ENT   CRniES. 


[Chap.  275. 


TITLE    II. 


PROCEEDINGS  IX  CRIMINAL  CASES. 


Chapter  275. 
Chapter  276. 


Ch.^pter  277. 
Chapter  27S. 
Chapter  279. 
Chapter  2S0. 


Proceedings  to  prevent  Crimes. 

Search  Warrants,  Rewards,  Fugitives  from  Justice,  Arrest,  Exam- 
ination, Commitment  and  Bail.  Probation  Officers  and  Commis- 
sion on  Probation. 

Indictments  and  Proceedings  before  Trial. 

Trials  and  Proceedings  before  Judgment. 

Judgment  and  Execution. 

Fines  and  Forfeitures. 


CHAPTER    275. 

PROCEEDINGS  TO  PRE\TNT  CRIMES. 


Sect. 

1.  Justices  authorized  to  keep  the  peace. 

2.  Complaint  of  threat  to  commit  crime. 

3.  Arrest. 

4.  Penalty.      Recognizance    to    keep    the 

peace. 

5.  Commitment  on  failure  to   recognize, 

etc. 

6.  Complainant.    When  to  pay  expenses. 

7.  Payment  of  expenses. 

8.  Appeal. 

9.  Witnesses  to  recognize. 
10.  Proceedings  on  appeal. 


Sect. 

11.  Recognizance  to  remain  in  force  if  ap- 

peal is  not  prosecuted. 

12.  Discharge  from  commitment  upon  rec- 

ognizing. 

13.  Recognizance    to    be    transmitted    to 

superior  court. 

14.  Recognizance.    When  to  be  required  on 

view  of  court  or  justice. 

15.  Persons  who  go  armed  to  find  sureties 

for  the  peace,  etc. 

16.  Remission  of  penalty. 

17.  Surrender  of  principal  by  surety. 


Justices 
authorized  to 
keep  the 
peace. 

R.  S.  134,  §  1. 
G.  S.  169.  §  1. 
P.  S.  211,  §  1. 
R.  L.  216, 1  1. 


Section  1.  Tlie  justices  of  the  supreme  judicial  court,  of  the  su- 
perior court,  of  district  courts  and  trial  justices  may  cause  all  laws  made 
for  the  preservation  of  the  public  peace  to  be  kept;  and  in  the  execution 
of  that  power  may  require  persons  to  give  security  to  keep  the  peace, 
or  for  their  good  behavior,  or  both,  as  provided  in  this  chapter. 


Complaint  of 
threat  to  com- 
mit crime. 
R.  S.  134.  5  2. 
G.  S.  169.  §  2. 
P.  8.211,  §  2. 
R.  L.  216,  §  2, 


Section  2.     If  complaint  is  made  to  any  such  court  or  justice  that  1 

a  person  has  threatened  to  commit  a  crime  against  the  person  or  property  2 

of  another,  such  court  or  justice  shall  examine  the  complainant  and  3 

any  witnesses  who  may  be  produced,  on  oath,  reduce  the  complaint  to  4 

writing  and  cause  it  to  be  subscribed  by  the  complainant.  5 


1692^3, 18.  §  6.  Section  3.  If,  upon  such  examination,  it  is  found  there  is  just  1 
JZ|^,  51.  |i.  cause  to  fear  that  such  crime  may  be  committed,  such  court  or  justice  2 
R.  s.'  134,  §  3.    shall  issue  a  warrant,  reciting  the  substance  of  the  complaint,  and  re-    3 


Ch.\P.   275.]  PROCEEDINGS  TO   PRE\-ENT   CRIMES.  2787 

4  quiring  tlie  officer  to  whom  it  is  directed  fortliwith  to  apprehend  the  g.  s.  leg,  §  3. 

5  person  complained  of  and  take  him  before  such  justice  or  some  other  r.l.I'ig.^s. 

6  justice  or  court  having  jurisdiction  of  the  cause.     Such  warrant,  if 

7  issued  by  a  justice,  shall  be  under  his  hand. 

1  Section  4.     If  the  person  complained  of  is  convicted,  he  may  be  Penalty. 

2  punished  by  a  fine  of  not  more  than  one  hundred  dollars  or  by  imprison-  to^kelp  the°^ 

3  ment  for  not  more  than  six  months.     He  may  appeal  as  in  other  criminal  'ilas^s. 

4  cases,  and  section  twenty-four  of  chapter  two  hundred  and  seventy-eight  §■  |-  H^'  1 1- 

5  shall  apply  to  such  appeals.     Instead  of  imposing  sentence,  the  court  p-S-2ii,'§4. 

6  or  justice  may  order  the  person  complained  of  to  enter  into  a  recogni-  §§  i,'2. 

7  zance,  with  sufficient  sureties,  in  such  sum  as  the  court  or  justice  orders,  r.  l!  216'  §  4. 

8  to  keep  the  peace  toward  all  the  people  of  the  commonwealth,  and  es-  t MaS iT.' 

9  pecially  toward  the  person  requiring  such  security,  for  such  term,  not 

10  exceeding  six  months,  as  the  court  or  justice  may  order.    The  court  or 

11  justice  may,  for  good  cause,  revoke  such  order  or  reduce  the  amount  of 

12  the  recognizance,  or  order  that  it  be  taken  without  surety. 

1  Section  5.     If  the  person  complained  of  so  recognizes,  he  shall  be  Commitment 

2  discharged,  but  if  he  refuses  or  neglects  so  to  do,  he  shall  be  committed  Tfmgidze,  etc. 

3  to  the  jail  or  house  of  correction  during  the  period  for  which  he  was  i^l.'fli,^^' 

4  required  to  give  security,  or  until  within  that  time  he  so  recognizes,  ^  I  ii;g  §  5 

5  stating  in  the  warrant  the  cause  of  commitment  and  the  sum  and  time  ^g|^- ^^^^  i^- 

6  for  which  security  was  required.  R.  l.  2ig,  §  5. 

1  Section  6.     If,  upon  such  examination,  it  is  found  that  there  is  not  Complainant. 

r%    *  p  \  1  •  '11    1  -111  When  to  pay 

2  just  cause  to  tear  that  such  crmie  will  be  committed  by  the  person  expenses. 

3  complained  of,  he  shall  be  forthwith  discharged;   and  if  it  is  found  that  gIs.  legile! 

4  the  complaint  is  unfounded,   frivolous  or  malicious,   the  complainant  r'.  l,  216,  §  e. 

5  may  be  ordered  to  pay  the  expenses  of  prosecution. 

1  Section  7.     If  a  person  is  required  to  give  security  to  keep  the  peace  Payment  of 

2  or  for  his  good  behavior,  the  court  or  justice  may  order  him  to  pay  the  i82™i2s,  §  2. 

3  expenses  of  prosecution,  or  any  part  thereof,  and  that  he  shall  stand  r.^s.' 134.' 1 8.' 

4  committed  until  they  are  paid  or  he  is  otherwise  legally  discharged.  p  I' 211,' §7' 

R.  L.  216,  §  7. 

1  Section  S.     Whoever  is  aggrieved  by  an  order  of  a  district  court  ^^^^^^^-^  ,  1 

2  or  trial  justice,   requiring  him  to  recognize  as  aforesaid,   may,   upon  R.  s.'iai,  §9. 

3  giving  the  security  reciuired,  appeal  to  the  superior  court,  such  appeal  g.  s.'i69,  §s. 

4  to  be  entered  on  the  next  return  day.  p.  s.  211,  §  s.  r.  l.  216, 5  8. 

1  Section  9.     The  court  or  justice  shall  require  such  witnesses  as  may  witnesses  to 

2  be  necessary  to  support  the  complaint  to  recognize  for  their  appearance  ks^i'sI,' §  10. 

3  at  the  superior  court. 

G.S.  169.  §9.  P.  S.  211,  §9.  R.  L.  216,  §9. 

1  Section  10.     The  superior  court  may  affirm  the  order  or  discharge  Proceedings 

2  the  appellant,  or  may  require  him  to  enter  into  a  new  recognizance,  i°s^m','§  11. 

3  with  sufficient  sureties,  in  such  sum  and  for  such  time  as  it  may  order,  p ; |; 2n;  |  lo.' 

4  and  may  make  such  order  relative  to  the  expenses  of  prosecution  as  is  ^-  ^-  ^^'^-  ^  ^°- 

5  just  and  reasonable. 


2788 


PROCEEDINGS  TO  PREVENT  CRDIES. 


[CH-VP.    275. 


Recognizance 
to  remain  in 
force  if  appeal 
is  not 
prosecuted. 
R.  S.  134,  §  12. 
G.  S.  169,  §  11. 
P.  S.  211.  §  11. 
R.  L.  216,  §  11. 


Section  11.     If  the  appellant  fails  to  prosecute  his  appeal,  his  recog-  1 

nizance  shall  remain  in  full  force  and  effect  as  to  any  breach  of  the  2 

condition,  without  an  affirmation  of  the  judgment  or  order  of  the  court  3 

or  justice,  and  shall  also  stand  as  security  for  any  expenses  of  prosecu-  4 

tion  which  the  superior  court  may  order  the  appellant  to  pay.  5 


f?im''coSnit-        Section  12.     A  person  committed  for  not  finding  sureties,  or  for  1 

"'^"'niJS'        refusing  to  recognize  as  required,  may  be  discharged  upon  giving  such  2 

R.''s^Tli?|i3.  security.  3 

G.  S.  169,  §  12.  P.  S.  211,  §  12.  -  R.  L.  216,  §  12. 


ufbeTran""^*  Section  13.     Thc  rccognlzance  taken  pursuant  to  the  foregoing  pro- 

^periJ)r  court  visions  shall  be  transmitted  to  the  superior  court  on  or  before  the  next 

K- s.  i|4, 1 14.  return  day,  and  shall  be  there  filed  of  record  by  the  clerk;    and  upon 

G.s.'i69,  §  13.  a  breach  of  the  condition  an  action  shall  be  commenced  thereon  bv 

p.  S.  211,  §  13.  .,,■.■... 

R.  L.  216,  s  13.  the  district  attornev. 


whento be'^re-  Section  14.     ^Miocvcr,  in  the  presence  of  a  justice  named  in  section 

ofTiJit  or '*"*  one  or  before  a  court  of  record,  makes  an  affray,  or  threatens  to  kill  or 

ieo-'-s  18  §  6  ^^^i  another,  or  to  commit  any  violence  or  outrage  against  the  person 

i'9*.2fi.§.2.  or  property  of  another,  or  contends  with  hot  and  angry  words,  to  the 

g:  s!  169!  I  u'.  disturbance  of  the  peace,  may  be  ordered,  without  process  or  any  other 

r'.  l.  216,  §  14.  proof,  to  recognize  to  keep  the  peace  or  be  of  good  behavior  for  not 


more  than  three  months 
provided  in  section  five. 


and  in  case  of  refusal  mav  be  committed  as 


Persons  who 
go  armed  to 
find  sureties 
for  the  peace, 
etc. 

1692-3.  IS.  5  6. 
1794,  26.  §  2. 
R.  S.  134,  §  16. 
G.S.  169,  i  15. 
P.  .S.  211.  §  15. 
R.  L.  216.  §  15. 
1906,  172,  §  2. 
190S,  350,  I  1. 


Section  15.     Whoever,  not  being  duly  licensed,  goes  armed  with  a  1 

dirk,  dagger,  sword,  pistol  or  other  offensi\-e  and  dangerous  weapon,  2 

without  reasonable  cause  t6  fear  an  assault  or  other  injury  or  violence  3 

to  his  person,  or  to  his  family  or  property,  may,  upon  complaint  of  a  4 

person  who  has  reasonable  cause  to  fear  an  injury  or  breach  of  the  5 

peace,  be  required  to  find  sureties  for  keeping  the  peace  for  not  more  than  6 

six  months,  with  the  right  of  appeal  as  before  provided.  7 

1919,  207,  I  2. 


^*™j^.'°°°^         Section  16.     If,   upon   a   suit   brought  on   such  recognizance,    the  1 

ifs'm  5  17    P^'^^lty  thereof  is  adjudged  forfeited,  the  court  may,  upon  petition  of  2 

g'.  s.  i6o',  §  16.'  a  defendant,  remit  such  portion  of  it  as  it  finds  ought  to  be  remitted.  3 

P.  S.  211,  §16.  R.  L.  216,  §16. 


Surrender  of 

principal  by 

Burety. 

R.  S.  134.  I  IS. 

G.  S.  169.  §  17. 

P.  S.  211,  §  17. 

R.  L.  216,  §  17. 


Section  17.  A  surety  in  a  recognizance  to  keep  the  peace,  or  for 
good  behavior,  or  both,  shall  have  the  same  authority  and  right  to 
take  and  surrender  his  principal  as  if  he  were  bail  for  him  in  a  civil 
cause;  and  after  such  surrender  shall  be  discharged  from  all  liability 
for  any  act  of  the  principal  subsecjuent  to  such  surrender  which  would 
be  a  breach  of  the  condition  of  the  recognizance.  The  person  so  sur- 
rendered may  recognize  anew  M'ith  sufficient  sureties  for  the  residue  of 
the  term,  and  shall  thereupon  be  discharged. 


CiL\p.  276.] 


SE.UICH   W.UIR.VNTS,   ETC. 


2789 


CHAPTER    276. 

SEARCH  WARRANTS,  REWARDS,  FUGITIVES  FROM  JUSTICE,  ARREST, 
EXAMINATION,  COMMITMENT  AND  BAIL.  PROBATION  OFFICERS 
AND  COMMISSION  ON  PROBATION. 


Sect. 

search  wakb.4.nts. 

1.  Issue. 

2.  Form. 

3.  Disposition  of  property  seized. 

4.  Notice  to  parties  before  forfeiture. 

5.  Service  of  notice. 

6.  Postponement  of  trial. 

7.  Sale  or  destruction  of  property  seized. 

8.  Appeal  to  superior  court. 

KEWABDS. 

9.  Governor  may  offer  reward. 

10.  Mayor,  etc.,  may  offer  reward. 

FDGITIVES    FROM   JUSTICE. 

11.  Delivery  and  demand  of  fugitive. 

12.  Proceedings. 

13.  Warrant.     Arrest. 

14.  Opportunity  to  apply  for  writ  of  habeas 

corpus. 

15.  Fees. 

16.  Arrest  of  person  liable  to  be  demanded 

by  another  state. 

17.  Recognizance. 

IS.  Commitment  on  failure  to  recognize. 

19.  Proceedings  and  discharge. 

20.  Expenses. 

ARREST,     EXAMIN.ATION,     COMMITMENT     AND 
BAIL. 

21.  Warrants  to  arrest,  by  whom  issued. 

22.  Warrants,  how  issued. 

23.  Service  of  warrants. 

24.  When  summons  instead  of  warrant. 
Service  of  summons. 
Failure  to  obey  summons  a  contempt. 
Recognizance. 
Arrest  for  misdemeanors. 

29.  Recognizance  out  of  county,   if  a  mis- 

demeanor. 

30.  Magistrate,  taking  bail,  to  return  re- 

cognizance and  certificate  to  court, 
etc. 

31.  Proceedings  if  prisoner  not  bailed. 

32.  Conveyance    of    prisoner    to    county 

where     warrant     issued,     if     felony 
charged. 

33.  Physical  examination  of  and  report  on 

persons  arrested. 

34.  Examination  of  prisoner. 

35.  Adjournment  of  trial  or  examination. 

36.  Proceedings  in  case  of  default  on  re- 

cognizance. 


25. 
26. 


28. 


Sect. 

37.  Proceedings  if  defendant  fails  to  recog- 

nize. 

38.  Conduct  of  examination. 

39.  Separation  of  witnesses. 

40.  Testimony  reduced  to  writing,  etc. 

41.  Discharge. 

42.  Bail  or  commitment. 

43.  Prisoner  may  be  carried  through  an- 

other county. 

44.  Certificate  of  expenses. 

45.  Witnesses  to  recognize. 

46.  Same  subject. 

47.  Sureties  required,  when. 
4.S.  Recognizances  by  minors. 

49.  Commitment  of  witness. 

50.  Deposition  of  witness. 

51.  Discharge  on  recognizance,  when. 

52.  Treatment  of  witnesses  in  jail. 

53.  Transportation    of    male    and    female 

prisoners. 

54.  Treatment  by  officers  of  witnesses  in 

custody. 

55.  Discharge  if  injured  party  satisfied. 

56.  Discharge  a  bar  to  civil  action. 

57.  Magistrates  who    may  admit   to  bail. 

Money  and    certain    eecurities    may 
be  deposited. 

Notice  to  officer  if  bail  not  fixed. 

Admission  to  bail  by  masters  in  chan- 
cery regulated. 

Bail  in  Suffolk  county. 

Certificate  of  sureties  required. 

Notice  to  dLstrict  attorney. 

No  fees  for  taking  bail,  when. 

Bail  on  Sunday. 

Condition  of  recognizance. 

Return  of  recognizance  and  examina-' 
tion  to  court. 

Forfeiture  of  bail  a  bar  to  further  bail. 

Surrender  of  principal  before  default. 
Return  of  certificate.     New  bail. 

Remission  of  penalty  after  default. 

Exoneration    if    unable    to    surrender 
principal. 

Default  on  recognizance. 

Surety  may  pay   amount    of    recogni- 
zance, etc. 

Award  of  forfeiture  out  of  penalty  of 
recognizance. 
.  Action  and  judgment  on  recognizance. 
.  Irregularities  not  to  defeat  action. 
.  Review  of  judgment   on  forfeited  re- 
cognizance. 
.  Service  of  petition. 


68. 


n. 


73. 


2790 


SE-UICH  WARE,\NTS. 


[CiL\P.  276. 


Sect. 

78.  Proceedings  if  former  judgment  dimin- 

ished. 

79.  Deposit  in  lieu  of  surety. 

SO.  Upon  default,  sale  of  securities  and 
pajTnent  of  money  out  of  proceeds 
of  sale  to  county. 

81.  Self-surrender  of  defendant.    Disposi- 

tion of  deposit. 

82.  "Magistrate"    includes   bail  commis- 


PROBATION    OFFICERS. 

S3.  Probation  officers. 

84.  Bonds. 

85.  Duties. 

86.  Boston   juvenile   court   may    appoint 

deputy  probation  officers. 

87.  Court  may  place  certain  persons  in  care 

of  probation  officer. 

88.  Clerical  assistance. 

89.  Temporary  probation  officers. 

90.  Powers.    Inspection  of  records. 

91.  Boston  juvenile  court  officers  to  serve 

process. 


Sect. 

92.  Restitution  to  be  made  through  pro- 

bation officer. 

93.  Money  collected  by  probation  officer 

to  be  paid  to  county  if  unclaimed, 
etc. 

94.  Expenses  of  probation  officers. 

95.  Support  of  probationers. 

96.  Penalty  for  neglect  of  duties. 

97.  Duties  of  department  of  public  welfare 

not  affected. 

COMMISSION    ON    PROBATION. 

98.  Commission    on    probation,     deputy 

commissioner,  etc. 

99.  Powers  and  duties. 

100.  Detailed  reports  to  be  made  of  the  pro- 

bation work,  etc. 

101.  Annual  report. 

102.  Not  to  affect  certain  authority  of  the 

courts. 

103.  Commission  to  be  given  notice  of  ap- 

pointment or  removal  of  probation 
officers. 


SEARCH  WARRANTS. 


Issue. 

R.  S.  142, 

§§  1.  2. 

G.  S.  170, 

§§1.2. 

P.  S.  212. 

§§1,2. 

R.  L.  217.  §  1. 

2  Met.  329. 


Section  1.     A  court  or  justice  authorized  to  issue  warrants  in  criminal  1 

cases  may,  upon  complaint  on  oath  that  the  complainant  believes  that  2 

any  of  the  property  or  articles  hereinafter  named  are  concealed  in  a  par-  3 

ticular  house  or  place,  if  satisfied  that  there  is  reasonable  cause  for  such  4 

belief,  issue  a  warrant  to  search  for  the  following  property  or  articles:  5 


3  .Mien,  310. 
103  Mass.  456. 


119  M.1SS.  332. 
140  Mass.  147. 


145  Mass.  182. 
217  Mass.  44a. 


Stolen 
property. 

Concealed 
property. 
1S65,  127,  §  2. 

Insured 
property. 


Counterfeit 
coin,  notes,  etc. 
1823,  40,  §  1. 


Counterfeit 

trade  marks, 

etc. 

184)9,  359,  §  8. 


Unwholesome 
meat  or 
provisions. 
1866,  253,  §  2. 
1S94,  491,  §   14, 


Diseased 
animals. 


First,  Personal  property  stolen,  embezzled  or  obtained  by  false  6 
pretences.  7 

Second,  Personal  property  hired  or  leased  or  held  as  collateral  security  8 
and  fraudulently  concealed.  9 

Third,  Personal  property  insured  against  loss  or  damage  by  fire  which  10 
the  complainant  has  reasonable  cause  to  believe  has  been  removed  or  is  11 
concealed  for  the  purpose  of  defrauding  the  insurer.  12 

Fourth,  Counterfeit  or  spurious  coin,  forged  bank  notes  and  other  13 
forged  instruments,  or  tools,  machines  or  materials  prepared  or  provided  14 
for  making  them.  15 

Fifth,  Counterfeits  or  imitations  of  a  label,  trade  mark,  stamp  or  form  16 
of  advertisement  recorded  pursuant  to  the  statutes  of  the  commonwealth,  17 
goods  upon  which  such  counterfeit  or  imitation  has  been  impressed,  18 
affixed  or  used,  and  any  dies,  plates,  brands,  moukls,  engravings,  printing  19 
presses,  tj'pes  or  other  tools,  machines  or  materials  prepared  or  provided  20 
for  making  such  counterfeit  or  imitation.  21 

Si.xth,  Diseased  animals  or  carcasses  thereof,  or  any  tainted,  diseased,  22 
corrupted,  decayed  or  unwholesome  meat,  fish,  vegetables,  produce,  fruit  23 
or  provisions  of  any  kind,  or  the  meat  of  any  calf  killed  when  less  than  24 
four  weeks  old  or  any  product  thereof,  if  kept  or  concealed  with  intent  25 
to  kill,  sell  or  oft'er  the  same  for  sale  for  food.  26 

Seventh,  Diseased  animals.  isoo,  4os,  §  lo.  27 


Ch.\P.   276.]  SEARCH   W.\EE.\NTS.  2791 

28  Eighth,  Books,  pamphlets,  ballads,  printed  papers  and  other  things  obscene  liter- 

29  containing  indecent,  impure  or  obscene  language,  or  indecent,  impure  or  fs'i'i.'iisl 

30  obscene  prints,  pictures,  figures  or  descriptions  manifestly  tending  to  5§2,4. 

31  corrupt  the  morals  of  youth,  and  intended  to  be  sold,  exliibited,  loaned, 

32  circulated  or  distributed,  or  introduced  into  any  family,  school  or  place 

33  of  education,  and  the  type,  forms,  press,  woodcuts,  raw  material  and 

34  mechanical  apparatus  used  and  employed  in  printing  and  publishing 

35  such  books,  ballads,  pamphlets  or  printed  papers. 

36  Ninth,  Drugs,  medicines,  instruments  and  other  articles  intended  to  Drugs,  medi- 

37  be  used  for  self-abuse,  or  for  the  prevention  of  conception,  or  for  causing  I'sTs,'  fsg,  §  2. 

38  unlawful  abortion,  and  the  raw  materials,  tools,  machinery,  implements, 

39  instruments  and  personal  property  used  or  intended  to  be  used  in  the 

40  manufacture  of  such  drugs,  medicines,  instruments  or  other  articles. 

41  Tenth,  Lottery  tickets  or  other  materials  unlawfully  made,  provided  J-°^'/j7 

42  or  procured  for  the  purpose  of  drawing  a  lottery. 

2  Met.  329.  5  Cush.  369. 

43  Eleventh,  Gaming  apparatus  or  implements  used  or  kept  and  provided  Gaming  appa- 

44  to  be  used  in  unlawful  gaming  in  any  gaming  house,  or  in  any  building,  furmturc. 

45  apartment  or  place  resorted  to  for  the  purpose  of  unlawful  gaming,  and  ii'^Met^Tg. 

46  the  furniture,  fixtures  and  personal  property  found  in  such  place  at  a  iliMassiii*: 

47  time  when  persons  are  engaged  in  unlawful  gaming.  iss  Mass.  les. 

48  Twelfth,  Pool  tickets  or  other  materials  unlawfully  made,  provided  or  Pooi  tickets. 

49  procured  for  the  purpose  of  buying  or  selling  pools.  ^*^*'  ^■*"'  ^  '■ 

50  Thirteenth,  An  unreasonable  number  of  rifles,  shotguns,  pistols,  re-  Rifles,  etc 

51  volvers  or  other  dangerous  weapons  or  an  unnecessary  quantity  of  ammu-  mg'ng.'Ti. 

52  nition,  if  kept  or  concealed  for  any  unlawful  purpose. 

53  Fourteenth,  Bombs  and  explosives  illegally  kept.  ?Q°,'2''^ol*'i;' .. 

1  Section  2.     Search  warrants  shall  designate  and  describe  the  place  fo™. 

2  to  be  searched  and  the  articles  to  be  searched  for,  and  shall  be  directed  fjf,"^' 

3  to  the  sheriff  or  his  deputy  or  to  a  constable  or  police  officer,  commanding  «f  i'^°' 

4  him  to  search,  in  the  day  time,  or  if  the  warrant  so  directs,  in  the  night  i";  f  |i2, 

5  time,  the  house  or  place  where  the  property  or  articles  for  which  he  is  isoo,  im. 

6  required  to  search  are  believed  to  be  concealed,  and  to  bring  such  property  1619. 179',  §  3. 

7  or  articles  when  found,  and  the  persons  in  whose  possession  they  are  sMet'gs^' 

8  found,  before  a  court  or  trial  justice  having  jurisdiction.  3AUen,  310. 

103  Mass.  456.  119  Mass.  332.  140  Mass.  147,  2S7.  145  Mass.  1S2. 

1  Section  3.     If  an  officer  in  the  execution  of  a  search  warrant  finds  Disposition 

2  property  or  articles  therein  described,  he  shall  seize  and  safely  keep  them,  seized''"'^ 

3  under  the  direction  of  the  court  or  justice,  so  long  as  necessary  to  permit  §■  g  {70'  f  j- 

4  them  to  be  produced  or  used  as  evidence  on  any  trial.    As  soon  as  may  J^jgo  45",'  ^^• 

5  be  afterward,  all  property  seized  under  clauses  one  and  two  of  section  iswUio,  §i; 

6  one  shall  be  restored  to  the  owner  thereof;  property  seized  under  clause  isab,  40s,  §  16. 

7  three  of  said  section  shall  be  disposed  of  as  the  court  or  justice  orders;  1902,'  ue]     ' 

8  property  or  other  articles  seized  under  clause  six  of  said  section  shall,  if  flii'.eos, 

9  upon  a  hearing  the  court  or  justice  finds  that  they  were  so  kept  or  con-  ||j};  ^j-,, 

10  cealed,  be  destroyed  or  disposed  of  in  accordance  with  section  one  hun-  ||  g^^ig'*''''' 

11  dred  and  forty-six  of  chapter  Binety-four  by  the  board  of  health  or  sCuVh.  369. 

12  by  an  officer  designated  by  the  court  or  justice,  otherwise,  they  shall  be  2i7Mass!446.' 

13  returned  to  the  owner;    diseased  animals  seized  under  clause  seven  of 

14  said  section  one  shall,  if  upon  a  hearing  the  court  or  justice  finds  that 

15  they  were  kept  or  concealed  in  a  particular  building,  place  or  enclosure. 


2792 


SEARCH   W.UlR.iJSrTS. 


[CiL^p.  276, 


be  destroyed  or  disposed  of  by  the  division  of  animal  industry  of  the  16 

department  of  conservation,  without  compensation  to  the  owners  thereof,  17 

otherwise,  they  shall  be  returned  to  their  owners;  property  seized  under  18 

clause  thirteen  of  said  section  one,  if  found  to  have  been  kept  for  an  un-  19 

lawful  purpose,  shall  be  forfeited  and  disposed  of  as  the  court  or  justice  20 

orders;   and  all  other  articles  seized  by  virtue  of  such  warrants  shall  be  21 

adjudged  forfeited  and  be  destroyed  or  sold  as  hereinafter  provided.  22 


Notice  to 
parties  before 
forfeiture. 
1870,  242,  §  2. 
P.  S.  212,  §  6, 
1894,410,  §  1. 
R.  L.  217,  §4. 
1919,  179,  §  3. 
103  Mass.  456. 


Section  4.  Before  a  decree  of  forfeiture  of  property  seized  under  a 
search  warrant  is  issued,  the  court  or  justice  shall,  unless  otherwise 
expressly  provided,  issue  a  notice  under  seal,  signed  by  the  clerk  of  the 
court  or  by  the  justice,  setting  forth  the  substance  of  the  complaint, 
and  commanding  the  persons,  if  any,  in  whose  possession  the  articles 
were  found,  and  the  owner,  if  alleged,  and  all  other  persons  who  claim 
an  interest  therein,  to  appear  at  a  time  and  place  therein  named  to  show 
cause  whv  the  articles  seized  should  not  be  forfeited. 


Service  of 
notice. 

1870,  242.  §  .■?. 
P.  S.  212,  §  7. 
1894,410,  §  1. 
R.  L.  217.  §  5. 
1919,  179,  §  3. 


Section  5.    The  notice  shall,  not  less  than  foiu-teen  days  before  the  1 

-time  appointed  for  trial,  be  served  upon  the  person,  if  any,  alleged  to  be  2 

the  owner  of  the  articles  seized,  by  an  officer  authorized  to  serve  criminal  3 

process,  by  lea\ing  an  attested  copy  thereof  with  him  personally  or  at  4 

his  usual  place  of  abode  and  by  posting  an  attested  copy  thereof  on  the  5 

house  or  building  in  which  the  articles  were  seized,  if  they  were  found  6 

in  a  house  or  building;   otherwise,  in  a  public  place  in  the  town  where  7 

they  were  seized.  8 


Postponement 
of  trial. 
1870,  242,  §  4. 
P.  S.  212,  §8. 
1894,  410,  §  1. 
R.  L.  217,  §6. 
1919,  179.  §  3. 


Section  6.     If,  at  the  time  appointed  for  the  trial,  such  notice  has  1 

not  been  duly  served,  or  if  it  appears  necessary  that  any  of  the  articles  2 

so  seized  should  be  kept  longer  for  the  purpose  of  being  produced  or  3 

used  as  evidence  on  any  trial,  or  if  other  sufficient  cause  appears,  the  4 

trial  may  be  postponed  to  another  day  and  place  and  further  notice  5 

issued.  6 


)  5. 

3. 

i9. 


Sale  or  de- 
struction of 
property 
seized. 
1862,  168, 
1869,  3G4, 
P.  S.  212,  1 
1885,  60,  i  1. 
1894,410,  §  1. 
1899,  359,  I  8. 
R.  L.  217,  §  7. 
1908,  370. 
1019,  179,  §  3. 
103  Mass.  456. 
119  Mass.  332. 
155  Mass.  165. 


Section  7.  If,  upon  the  trial,  the  property  is  adjudged  forfeited, 
the  t^-pe,  forms,  press,  woodcuts,  raw  material  and  mechanical  apparatus 
described  in  clause  eight  of  section  one,  the  dies,  plates,  brands,  moulds, 
engravings,  printing  presses,  tj-pes  or  other  tools,  machines  or  materials 
described  in  clause  five  of  said  section,  the  raw  materials,  tools,  machinery, 
implements,  instruments  and  personal  property  described  in  clause  nine 
of  said  section,  and  all  furniture,  fixtures  and  personal  property  described 
in  clause  eleven  of  said  section,  or  so  much  thereof  as  the  court  or  justice 
may  order,  shall  be  sold  by  the  sheriff  and  the  proceeds  paid  to  the 
county,  and  the  remainder  of  the  property  shall  be  destroyed  as  the  10 
court  or  justice  may  order.  The  court  or  justice  may  order  any  article  11 
not  found  to  have  been  unlawfull.^'  used  or  intended  for  unlawful  use,  12 
or  any  article  unlawfully  used  without  the  knowledge  of  its  o^vTier,  13 
lessor  or  mortgagee,  to  be  delivered  to  the  party  legally  entitled  to  its  14 
possession.  15 


Appeal  to 
superior  court. 
1870,  242,  §  1. 
P.  S.  212,  §  10. 
1894,410,  5  1. 
R.  L.  217,  §  8. 
1919,  179,  §  3. 


Section  8.  A  person  aggrieved  by  a  decree  of  forfeiture  of  a  district 
court  or  trial  justice  may  appeal  therefrom  to  the  superior  court;  but 
before  his  appeal  is  allowed,  he  shall  recognize  to  the  commonwealth 
in  the  sum  of  two  hundred  dollars,  with  sufficient  surety  or  sureties,  to 
prosecute  his  appeal  and  to  pay  all  such  expenses  as  may  thereafter 


\ 


Chap.  276.]  rewaeds,  fugitives  from  justice.  2793 

6  arise,  if  final  judgment  is  rendered  against  the  articles  adjudged  forfeited, 

7  and  to  abide  the  judgment  of  the  superior  court  thereon;  and  upon  such 

8  appeal,  any  question  of  fact  shall  be  tried  by  a  jm-y.    All  proceedings  in 

9  the  superior  court,  including  the  right  of  exception,  shall  conform  so 

10  far  as  may  be  to  proceedings  in  criminal  cases;  and  if,  upon  final  judg- 

11  ment,  the  articles  are  adjudged  forfeited,  they  shall  be  disposed  of  under 

12  the  direction  of  the  superior  court  as  they  might  have  been  disposed  of 

13  had  no  appeal  been  taken. 

RE'nARDS. 

1  Section  9.     The  governor,  if  he  deems  the  public  good  so  requires.  Governor  may 

2  may  offer  a  suitable  reward  of  not  more  than  one  thousand  dollars  in  any  is36,'4.™i8. 

3  one  case  to  be  paid  by  the  commonwealth  to  any  person  who,  in  conse-  pf^i'^'lu 

4  quence  of  such  offer,  apprehends,  brings  back  and  secures  a  person  who  f^^-  g'J'  §  ^■ 

5  is  convicted  of  or  charged  with  a  felony,  who  has  escaped  from  prison 
()  in  the  commonwealth,  or  to  any  person  who,  in  consequence  of  such  offer, 

7  apprehends  and  secures  a  person  charged  with  such  crime,  or  for  infor- 

8  mation  that  shall  lead  to  the  arrest  and  conviction  of  any  person  who 

9  has  committed  a  felony,  if  the  person  cannot  be  arrested  and  secured  in 

10  the  common  course  of  proceedings.    If  more  than  one  claimant  applies 

1 1  for  the  payment  of  such  reward,  the  governor  shall  determine  to  whom  it 

12  shall  be  paid,  and  if  to  more  than  one  person,  in  what  proportion  to  each, 

13  and  his  determination  shall  be  final. 

1  Section  10.     The  aldermen  or  the  selectmen,  if  in  their  opinion  the  Mnyor.  etc., 

2  public  good  so  requires,  may  offer  a  suitable  reward  of  not  more  than  i'ew'ir'd'" 

3  five  hundred  dollars  in  any  one  case,  to  be  paid  by  the  town  to  any  person  Jfg-  JI5 

4  who,  in  consequence  of  such  offer,  detects  or  secures  a  person  who  has  f|/g'|- 

5  committed  a  felony  in  such  place,  either  before  or  after  he  has  been  charged  p-  f'^\f 

G  therewith,  and  such  reward  shall  be  paid  by  the  treasurer  upon  the  war-  r.  l.'217,  §  10. 

7  rant  of  the  aldermen  or  selectmen.    If  more  than  one  claiiiiant  applies  scush.  219. 

8  for  the  payment  of  such  reward,  the  aldermen  or  selectmen  shall  deter-  Ifl';'^^'  ^'~' 

9  mine  to  whom  it  shall  be  paid,  and  if  to  more  than  one  person,  in  what  i.33'm°'s1^233. 
10  proportion  to  each,  and  their  determination  shall  be  final.  i^^  ^^'^^-  ^^• 

FUGITIVES   FROM  JUSTICE. 

1  Section  11.     The  governor,  in  any  case  which  is  authorized  by  the  Delivery  and 

2  constitution  and  laws  of  the  United  States,  may,  upon  demand,  deliver  fu^uve." 

3  to  the  executi\-e  of  any  other  state  or  territory  any  person  charged  Jsgi;  fg;  ^  j 

4  therein  with  treason,  felony  or  other  crime;   or  may,  upon  application,  jf'I'J'^g  §6 

5  appoint  an  agent  to  demand  of  the  executive  authority  of  any  other  is5|.  s_l  '    ^ 

6  state  or  territory  any  such  offender  fleeing  from  the  justice  of  this  p.'.s.'218.'§  i.' 

•  T?    T     ''IT    S  11 

7  commonwealth.    Such  demand  or  application  shall  be  accompanied  by  ids  Mass".  223.' 

8  sworn  evidence  that  the  person  charged  is  a  fugitive  from  justice  and  by  isl  Mass!  149! 

9  a  duly  attested  copy  of  an  indictment  or  complaint  made  before  a  court  236  mITs.  493. 

10  or  magistrate  authorized  to  receive  it.    Such  complaint  shall  be  accom-  2o°''3S6 '^^  ^^''' 

1 1  panied  by  affidavits  to  the  facts  constituting  the  crime  charged  by  persons  2  op.  a.  g.  ses, 

12  who  have  actual  knowledge  thereof,  and  by  such  further  evidence  as  the  sop.A.  G.432. 

13  governor  may  require.  4  0p.  a.  0.433.  Op.  a.  o.  (1920)  isi,  293. 

1  Section  12.     Upon  such  demand  or  application,  the  attorney  general  f|S4^'i gg"^!  2 

2  or  a  district  attorney  shall,  if  the  governor  so  requires,  forthwith  investi-  i|- i^-  Jir  |  ^. 

3  gate  the  grounds  thereof  and  report  to  the  governor  all  the  material  facts  i'.'s.'2is,'  §  2'. 


2794 


FUGITIVES   FROM  JUSTICE. 


[CiLVP.   276. 


R.L.  217,  §12.  which  may  come  to  his  knowledge,  with  an  abstract  of  the  evidence  in  4 

2  Op.  A.^G.  3GS,  the  case,  and,  in  case  of  a  person  demanded,  whether  he  is  held  in  custody  5 

*^*'                or  is  under  recognizance  to  answer  for  a  crime  against  the  laws  of  this  6 

commonwealth  or  of  the  United  States  or  by  force  of  any  civil  process,  7 

with  an  opinion  as  to  the  legality  or  expediency  of  complying  therewith.  8 


Warrant. 
Arrest. 
1782,31. 
1801,  10,  §  2. 
R.  S.  142,  §  7. 
G.  S.  177,  §3. 
P.  S.  218,  §  3. 
H.  L.  217,  §  13. 
1920,  399. 
9  Gray,  262. 
106  Mass.  223. 
122  Mass.  324. 
236  Mass.  493. 


Section  13.     If  the  governor  is  satisfied  that  the  demand  conforms  1 

to  law  and  ought  to  be  complied  with,  he  shall  issue  his  warrant  under  2 

the  seal  of  the  commonwealth  to  an  officer  authorized  to  serve  warrants  3 

in  criminal  cases,  directing  him  to  arrest  and  deliver  such  person  to  the  4 

agent  making  the  demand,  and  shall  also,  by  the  warrant,  request  such  5 

officers  within  this  commonwealth  to  afford  all  needful  assistance  in  the  6 

execution  thereof.  2  0p.  a.  c.sso.  7 


Opportunity 
to  apply  for 
writ  of  habeas 
corpus. 
1857,  289. 
I§1,  2. 
G.  S.  177, 
5§4,  5. 
P.  S.  218, 
l§  4,  6. 

R.  L.  217,  I  14. 
2  Op.  A.  G.  3.S0. 


Section  14.     A  person  arrested  upon  such  warrant  shall  not  be  de-  1 

livered  to  such  agent  of  a  state  or  territory  until  he  has  been  notified  2 

of  the  demand  for  his  surrender  and  has  had  an  opportunity  to  apply  for  3 

a  writ  of  habeas  corpus,  if  he  claims  such  right  of  the  officer  who  makes  4 

the  arrest.    If  such  writ  is  applied  for,  notice  thereof  and  of  the  time  and  5 

place  of  hearing  shall  be  given  to  the  attorney  general  or  district  attorney  6 

for  the  district  where  the  arrest  is  made.     An  officer  who  delivers  a  7 

person  in  his  custody  upon  such  warrant  to  such  agent  for  extradition  8 

without  having  complied  with  this  section  shall  forfeit  not  more  than  9 

one  thousand  dollars.  10 


Fees. 

ISOl,  10,  §  1. 

R.  S.  142,  §  6. 

G.  S.  177,  §  6. 

P.  S.  218,  §  0. 

1886,  267. 

R.  L.  217,  §  15. 


Section  15.  If  the  application  for  the  arrest  of  a  fugitive  from  the 
justice  of  the  commonwealth  is  complied  with  and  an  agent  is  appointed, 
his  account  shall  be  paid  like  other  expenses  in  criminal  cases  by  the 
county  where  the  proceedings  are  pending;  but  the  governor  may  direct 
the  whole  or  a  part  thereof  to  be  paid  by  the  commonwealth. 


person  ?fabie          Section  16.     If  a  pcrson  fouud  in  this  commonwealth  is  charged  with  1 

by  anot£r°''^  ^  Crime  Committed  in  another  state  or  territory  and  is  liable  by  the  con-  2 

S^l^-i.o  ,  c     stitution  and  laws  of  the  United  States  to  be  delivered  upon  the  demand  3 

K.  to.  14.i,  8  8...                          '              p            t           1                                             •                                                 ••  A 

G.s.  i77,|7.     or  the  executive  oi  such  other  state  or  territory,  a  court  or  justice  au-  4 

R.L.  217,  §  i6.  thorized  to  issue  warrants  in  criminal  cases  may,  upon  complaint  on  oath  5 

setting  forth  the  crime  and  such  other  matters  as  are  necessary  to  bring  6 

the  case  within  the  provisions  of  law,  issue  a  warrant  to  bring  the  person  7 

charged  before  the  same  or  another  court  or  justice  within  the  common-  S 

wealth  to  answer  to  such  complaint  as  in  other  cases.  9 


Recognizance. 
R.  S.  142,  §  9. 
G.  S.  177,  §  8. 
P.  S.  218,  §8. 
R.  L.  217,  §  17 


Section  17.     If,  upon  examination  of  the  person  charged,  the  pourt  1 

or  justice  has  reasonable  cause  to  believe  that  the  complaint  is  true  2 

and  that  such  person  may  be  lawfully  demanded  of  the  executive,  he  3 

shall,  if  not  charged  with  a  capital  crime,  be  required  to  recognize  with  4 

sufficient  sureties  in  a  reasonable  sum  to  appear  before  such  court  or  5 

justice  at  a  day  appointed,  allowing  a  reasonable  time  to  obtain  the.  6 

warrant  of  the  executive,  and  to  abide  the  order  of  the  court  or  justice.  7 


onMurTtS'  Section  IS.  If  he  does  not  so  recognize,  he  shall  be  committed  to  1 
r.'^s^'hI]  §  9.  i^il  until  such  day,  as  if  the  crime  charged  had  been  committed  within  2 
G.s.  177,  §9.     the  commonwealth;   and  if  he  fails  to  appear  according  to  the  condition    3 


Chap.  276.]  .\rrest,  ex.\mination,  commitment,  bail.  2795 

4  of  his  recoarnizance,  he  shall  be  defaulted  and  like  proceedings  had  as  p.  s.  218,  §  9. 

5  in  case  of  other  recognizances  entered  into  before  such  court  or  justice.    '   ' 

6  If  charged  with  a  capital  crime,  he  shall  be  committed  to  jail  until  the 

7  day  so  appointed  for  his  appearance. 

1  Section  19.     If  the  person  so  recognized  or  committed  appears  be-  Proceedings 

2  fore  the  court  or  justice  upon  the  day  appointed,  he  shall  be  discharged  r"  s.  u2!'?To. 

3  unless  he  is  demanded  by  a  person  authorized  by  the  warrant  of  the  p,  i; 2ii.' i m.' 

4  executive  to  receive  him,  or  unless  the  court  or  justice  has  cause  to  ^-  ^-  ^^''^  ^  ^^• 

5  commit  him  or  to  require  him  to  recognize  anew  for  his  appearance  on 

6  another  day,  and  if,  when  ordered,  he  does  not  so  recognize,  he  shall 

7  be  committed  and  detained  as  before.  If  the  person  charged  has  recog- 
S  nized  or  is  committed  or  discharged,  a  person  authorized  by  the  warrant 
9  of  the  executive  may  at  any  time  take  him  into  custody  and  the  same 

10  shall  be  a  discharge  of  the  recognizance  and  not  be  an  escape. 

1  Section  20.     The  complainant  in  such  case  shall  be  answerable  for  ExpcDses. 

2  all  actual  costs  and  charges  and  for  the  support  in  jail  of  a  person  so  g! sin?! §11! 

3  committed,  which  shall  be  paid  as  by  a  creditor  for  his  debtor  committed  r.  L.^2f7,V26. 

4  on  execution.    If  the  charge  for  support  in  jail  is  not  so  paid,  the  jailer 

5  may  discharge  him  as  if  he  had  been  committed  on  execution. 

ARREST,   EXAMINATION,   COMMITMENT   AND   BAIL. 

1  Section  21.     Justices  of  the  supreme  judicial,  superior  or  district  warrants  to 

srr6st   bv 

2  courts,  and  trial  justices,  may  issue  process  for  the  apprehension  of  whom' issued. 

3  persons  charged  with  crime  and  to  carry  into  effect  sections  twenty-two  g!  s.'  170,'  §  9/ 

4  to  eighty-two,  inclusive. 

p.  S.  212,  §  14.  R.  L.  217,  §21.  126  Mass.  238. 

1  Section  22.     Upon  complaint  made  to  any  such  justice  that  a  crime  warrants, 

2  has  been  committed,  he  shall  examine  on  oath  the  complainant  and  any  r°s.'i351  §2. 

3  witnesses  produced  by  him,  reduce  the  complaint  to  writing,  and  cause  fssu  127.  ^  ^'^' 

4  it  to  be  subscribed  by  the  complainant,  and,  if  it  appears  that  a  crime  R;L.ln,V22. 

5  has  been  committed,  shall,  except  as  otherwise  provided,  issue  a  war-  1  ^rf''  l?^' 

6  rant,  reciting  the  substance  of  the  accusation  and  requiring  the  officer  s  Gray',  463. 

7  to  whom  it  is  directed  forthwith  to  arrest  the  accused  and  to  take  him  2S3. 

8  before  a  coiu't  or  trial  justice  of  the  county  to  be  dealt  with  according  to  uo'S's.  ei. 

9  law,  and  to  summon  such  witnesses  as  shall  be  therein  named  to  appear  J30  Mass!  Ig*' 
10  and  give  evidence  on  the  examination  or  trial. 

157  Mass.  556.  210  Mass.  33. 

1  Section  23.     Warrants  and  other  processes  issued  for  the  apprehension  Service  of 

2  of  persons  charged  with  crime  may  be  directed  to  and  served  in  any  part  rs20, 52.' 

3  of  the  commonwealth  by  an  officer  authorized  to  serve  criminal  process  ml,  211'.     ' 

4  in  any  county.    Such  officer  may  command  aid  and  exercise  the  same  p;  f;  212,' 1 2a 

5  authority  as  if  in  his  own  county.  iss6, 247.  r.  l.  217,  §§  23, 28. 

1  Section  24.     Upon  a  complaint  for  a  crime  punishable  by  fine  only,  whensum- 

2  or  by  imprisonment  for  not  more  than  one  year,  with  or  without  a  fine,  of°warr"nr 

3  a  summons  may  be  issued  instead  of  a  warrant  for  arrest,  if,  in  the  judg-  ^^i.'iil'ih. 

4  ment  of  the  court  or  justice  receiving  the  complaint,  there  is  reason  to  J^^'-*^'  '^ff .  24 

5  believe  that  the  defendant  will  appear  upon  a  summons.  I'-ii^.  269. 


2796 


ARREST,   EX^iMINATION,   COMMITMENT,   BAIL.  [Ch.\P.   276. 


sunimons'  SECTION  25.     Such  summons  shall  fix  a  clay  and  hour  of  appearance 

¥^s'2i2'iii  ^^^  trial,  and  shall  be  served  by  an  officer  authorized  to  serve  criminal 
R.  L.  217,  §  25.  process  by  giving  to  the  defendant  in  hand  or  by  leaving  at  his  last  and 

usual  place  of  abode  an  attested  copy,  not  less  than  twenty-four  hours 

before  the  return  hour. 


simimons°a''^^  SECTION  26.  If  a  defendant  so  summoned  fails,  without  reasonable 
issuTIt,'  §  3  cause,  to  appear  and  abide  the  orders  of  the  coiu-t  or  justice,  he  shall 
p.  s.  212^  1 18.  be  considered  in  contempt  of  court,  and  may  be  punished  by  a  fine  of 
not  more  than  twenty  dollars.  A  warrant,  if  necessary,  may  be  issued 
at  any  time  after  the  issue  of  such  summons,  whether  it  has  been  served 
or  not. 


R.  L.  217 


I  26. 


1 

2 
3 
4 
5 
6 


?8mT?27?T4'        Section  27.     If  a  defendant  so  summoned  duly  appears,  he  may  be  1 

R.  L.%^7,\^27.  ordered  to  recognize  for  his  further  appearance  but  shall  not  be  required  2 

to  give  surety  upon  his  recognizance  at  any  stage  of  the  prosecution  3 

without  a  special  order.  4 


Arrest  for 
misdemeanors. 
1912,  482. 


Section  28.  Any  officer  authorized  to  serve  criminal  process  may 
arrest  and  detain  a  person  charged  with  a  misdemeanor,  without  having 
a  warrant  for  such  arrest  in  his  possession,  if  the  officer  making  such  arrest 
and  detention  shall  have  actual  knowledge  that  a  warrant  then  in  full 
force  and  effect  for  the  arrest  of  such  person  has  in  fact  issued. 


Recognizance 
out  of  county, 
if  a  misde- 
meanor. 
1692-3,  18,  §  6. 
1783,51,  §  1. 
1784,  66,  §  5. 
1794;  26, 
§§  1,2. 

1804,  143,  §  17. 
R.  S.  135,  §4. 
G.  S.  170,  §  12. 
P.  S.  212,  §21. 
R.  L.  217,  §  29. 
16  Mass.  198. 
13  Pick.  86. 


Section  29.  If  the  crime  charged  in  a  warrant  is  not  a  felony,  and 
the  defendant  requests  to  be  taken  before  a  magistrate  of  the  county 
where  he  was  arrested,  for  the  purpose  of  entering  into  a  recognizance 
without  a  trial  or  examination,  the  officer  who  arrested  him  shall  take 
him  before  a  magistrate  of  that  county,  who  may  recfuire  from  him  a 
recognizance,  with  sufficient  sureties,  for  his  appearance  at  the  court 
which  has  jurisdiction  of  the  crime  and  next  to  be  held  in  the  county  or 
judicial  district  in  which  it  is  alleged  to  have  been  committed,  and  upon 
entering  into  such  recognizance  the  defendant  shall  be  released. 

11  Gray,  463.  168  Mass.  471. 


Magistrate, 
taking  bail,  to 
return  recog- 
nizance and 
certiBcate  to 
court,  etc. 
R.  S.  135,  §5. 
G.  S.  170,  §  13. 
P.  S.  212,  5  22. 
R.  L.  217,  §  30. 


Section  30.     The  magistrate  who  so  admits  the  defendant  to  bail  1 

shall  certify  that  fact  upon  the  warrant,  and  deliver  it,  with  the  recogni-  2 

zance  and  certificate  required  by  section  sixty-one,  to  the  officer,  who  3 

shall  cause  the  same  to  be  delivered  without  unnecessary  delay  to  the  4 

clerk  of  the  court  before  which  the  defendant  was  recognized  to  appear;  5 

and,  upon  application  of  the  complainant,  the  justice  who  issued  the  6 

warrant  or  the  district  attorney  shall  cause  such  witnesses  as  he  thinks  7 

necessary  to  be  summoned  to  the  same  court.  8 


prSotTetnlV^  Section  31.  If  a  pcrsou  is  arrested  in  a  county  other  than  that  where 
R 's'^iso  §  6  *^®  crime  was  committed,  and  the  magistrate  before  whom  he  is  taken 
p' I' 21™' I •'3'  J'^^uses  to  admit  him  to  bail,  or  if  no  sufficient  bail  is  offered,  the  officer 
R.  L.  2r7,  §  si.  shall  take  him  before  the  court  or  trial  justice  to  which  or  before  whom 
the  warrant  is  returnable^ 


pnsonw  °o^  °^  Section  32.  If  the  crime  charged  in  a  warrant  is  a  felony,  the  officer  1 
warrantTssued  ^^^'^  makcs  the  arrcst  in  another  county  shall  convey  the  prisoner  to  2 
if  felony        '   tlic  couutv  whcFc  the  Warrant  was  issued.  3 

charged.  ^ 

R.  S.  135,  I  7.  G.  S.  170,  §  15.  P.  S.  212.  §  24.  R.  L.  217,  §  32. 


ClL\P.    276.]  ARREST,    EXAMINATION,    COMMITMENT,    BAIL.  2797 

1  Section  33.     Whenever  a  person  is  arrested  for  a  crime  and  is  taken  Physical  ex- 

2  to  or  confined  in  a  jail,  police  station  or  lockup,  the  officer  in  charge  and^epon on 

3  thereof  shall  immediately  examine  the  prisoner,   and  if  he  finds  any  P"ested. 

4  bruises,  cuts  or  other  injuries  shall  forthwith  make  a  written  report  Jgjg'lj^o^'/i^^a 

5  thereof  to  the  chief  of  police  of  the  town  concerned,  or  in  Boston  to  the 

6  police  commissioner,  and  in  towns  where  there  is  no  chief  of  police  to 

7  the  selectmen.    If  the  place  of  confinement  is  under  control  of  the  metro- 

8  politan  district  commission,  the  report  shall  be  made  to  it.    The  require- 

9  ment  that  the  prisoner  be  examined  shall  not  be  deemed  to  compel  the 

10  removal  of  clothing.     When  a  person  is  transferred  from  one  place  of 

1 1  confinement  to  another  prior  to  his  arraignment  in  court  or  to  his  release, 

12  the  requirement  that  he  shall  be  examined  shall  apply  only  to  the  place 

13  to  which  he  is  first  taken  after  his  arrest.    Whoever  violates  this  section 

14  shall  be  punished  by  a  fine  of  not  more  than  ten  dollars. 

1  Section  34.     \Mioever  is  arrested  by  warrant  for  a  crime  shall,  unless  Examination 

2  other  provision  is  made  for  his  examination,  be  taken  before  a  court  or  r.s"i35"§8. 

3  trial  justice  having  jurisdiction  where  the  crime  was  committed;    and  Rl^™,'!!!; 

4  the  warrant,  with  a  proper  return  thereon  signed  by  the  person  making  f  cmh  ^los  ^^' 

5  the  arrest,  shall  be  deli\ered  to  the  coiu-t  or  justice. 

1  Section  35.     Except  in  proceedings  under  sections  eleven  to  nineteen,  Adjournment 

2  inclusi^'e,  of  chapter  two  hundred  and  seventy-three,  the  court  or  justice  "xaSfnaUon. 

3  may  adjourn  an  examination  or  trial  from  time  to  time,  not  exceeding  R.^i;  ifs.Vg. 

4  ten  days  at  any  one  time  against  the  objection  of  the  defendant,  and  to  pfl™'!!!' 

5  the  same  or  a  dilTerent  place  in  the  county.     In  the  meantime,  if  the  R-  l-  217,  §  34. 

6  defendant  is  charged  with  a  crime  not  bailable,  he  shall  be  committed ;  uo  Mass!  205. 

7  otherwise,  he  may  recognize  in  a  sum  and  with  sureties  to  the  satisfac- 

8  tion  of  the  court  or  justice,  or  without  surety,  for  his  appearance  for 

9  such  further  examination,  and  for  want  of  such  recognizance  he  shall 
10  be  committed. 

1  Section  36.     If  the  recognizor  does  not  appear  according  to  his  re-  Proceedings  in 

2  cognizance,  the  court  or  justice  may  issue  process  to  bring  him  into  on^reOTgni'-""" 

3  court  for  trial.    After  his  failure  so  to  appear,  the  court  or  justice  may  at  5|i;f  gg  .  2 

4  any  time  order  his  default  recorded ;    but  it  mav  be  removed  for  good  ii-  s'  135,  §  io. 

*  .  *".  OS   170  §  IS 

5  cause  at  any  time  to  which  the  case  may  be  continued.    If  such  default  p.' s.' 212,' §27.' 

6  IS  not  removed,  the  recognizance  shall  be  certified  with  a  record  of  such  1904,'  i64.' 

7  default  to  the  superior  court,  and  like  proceedings  shall  be  had  thereon  ^'^'°'  **■*'  ^  ^' 

8  as  upon  a  breach  of  the  condition  of  a  recognizance  for  appearance  before 

9  said  superior  court,  except  in  cases  where  bank  books,  bonds  or  money 
10  have  been  deposited  at  the  time  of  the  recognizance. 

1  Section  37.     If  the  defendant  fails  to  recognize,  he  may  be  committed  Proceedings  if 

2  to  jail  by  an  order  stating  concisely  that  he  is  committed  for  further  to  recognize. 

3  examination  on  a  future  day  to  be  named  in  the  order,  and  on  the  day  a',  s.  no,  §  lo! 

4  named  he  may  be  brought  before  the  court  or  justice  by  a  verbal  order  r.  L.^2f7, Vie. 

5  to  the  officer  who  made  the  commitment,  or  by  a  written  order  to  a 

6  different  person. 

1  Section  38.    The  court  or  justice  before  whom  a  person  is  taken  Conduct 

2  upon  a  charge  of  crime  shall,  as  soon  as  may  be,  examine  on  oath  the  tion^"""""' 

3  complainant  and  the  witnesses  for  the  prosecution,  in  the  presence  of  the  f§  fi,^ii,' 


2798 


ARREST,    EXAMINATION,    COMMITMENT,    BAIL. 


[Chap.  276. 


G.  S.  170, 
«  20,  21. 
P.  S.  212, 
§§  29,  30. 
R.  L.  217,  §37 
11  Gray,  07. 


defendant,  relative  to  any  material  matter  connected  with  such  charge.  4 

After  the  testimony  to  support  the  prosecution,  the  witnesses  for  the  5 

prisoner,  if  any,  shall  be  examined  on  oath,  and  he  may  be  assisted  by  6 

counsel  in  such  examination  and  in  the  cross  examination  of  the  witnesses  7 

in  support  of  the  prosecution.  8 


Separation  of 
witnesses. 
R.  S.  135,  §  14. 
G.  S.  170,  §  22. 
P.  S.  212,  §31. 
R.  L.  217,  §  38. 


Section  39.  The  court  or  justice  may,  while  examining  a  witness, 
exclude  from  the  place  of  examination  all  other  witnesses,  and  may  if 
requested,  or  if  cause  therefor  appears,  order  the  witnesses  for  or  against 
the  prisoner  to  be  kept  separate,  so  that  they  cannot  converse  with  each 
other  until  their  examination. 


Section  40.     The  testimony  of  the  witnesses  examined  shall  be  re-     1 


Testimony 
reduced  to 

R"s''f35*'§  15  fli'ced  to  writing  by,  or  under  the  direction  of,  the  court  or  justice,  if  he  2 
G|i7o!§23.  considers  it  necessary,  and  shall,  if  required  by  him,  be  signed  by  the  3 
R.  L.  217,  §  39.  witnesses.  4 


Discharge. 
R.  S.  135,  " 


16. 


G.  S.  170.  §  24. 
P.  S.  212,  §  33. 
R.  L.  217,  §  40. 


Section  41.  If  it  appears,  upon  the  whole  examination,  that  no  1 
crime  has  been  committed  or  that  there  is  not  probable  cause  for  charging  2 
the  prisoner  therewith,  he  shall  be  discharged.  3 


Bail  or 
commitment. 
R.  S.  135,  §  17. 
G.  S.  170,  §  25. 
P.  S.  212,  §34. 
R.L.217,  §41. 


Section  42.  If  it  appears  that  a  crime  has  been  committed  and  that 
there  is  probable  cause  to  believe  the  prisoner  guilty,  the  court  or  justice 
shall,  if  final  jurisdiction  is  not  exercised,  admit  the  prisoner  to  bail,  if 
the  crime  is  bailable  and  sufficient  bail  is  offered;  otherwise,  he  shall  be 
committed  to  jail  for  trial. 


bfca^ried"'^         Section  43.     If  the  journey  from  the  town  where  the  prisoner  is  held  1 

other  TOunty      ^^  *^^  towH  whcro  lic  is  to  bc  Committed  on  the  service  of  a  mittimus  2 

1,862. 211),  §  L    ean  be  made  by  railroad,  the  officer  may  convey  the  prisoner  through  3 

r'.  l.  217,  §  42.  any  portion  of  another  county  in  the  prosecution  of  such  journey.  4 

Mpeifses'" ''^         Section  44.     If  the  defendant  is  held  to  appear  before  the  superior  1 

R  ^L  21?'  1 43'  *^o^"'t>  the  copies  and  record  of  proceedings  sent  to  the  superior  court  2 

shall  contain  the  details  of  all  fees  and  expenses  allowed  or  paid  in  the  3 

district  court  or  before  the  trial  justice.  4 


Witnesses  to 
recognize. 
R.  S.  135,  §  18. 
G,  S.  170,  §  2(j. 
P.  S.  212,  §36. 
R.  L.  217,  §  44. 


Section  45.  If  the  prisoner  is  admitted  to  bail  or  is  committed,  the 
court  or  justice  shall  bind  by  recognizance  the  material  witnesses  against 
the  prisoner  to  appear  and  testify  at  the  next  sitting  of  the  court  having 
jurisdiction  of  the  crime  and  in  which  the  prisoner  is  held  to  answer. 


isss!  i36:'?i.        Section  46.     If  the  examination  or  trial  of  a  defendant  charged  with 
R.  L.  217,  §  45.  g^  felony  is  adjourned  under  section  thirty-five,  the  com-t  or  justice  may 
bind  by  recognizance  the  principal  witnesses  against  the  prisoner  to  ap- 
pear and  testify  at  the  time  and  place  to  which  the  trial  or  examination 
is  adjourned. 


qm^drwhen.  SECTION  47.  The  court  or  justice,  if  satisfied  that  there  is  good  cause 
o'.  s  170, 1 27'  to  believe  that  a  witness  will  not  perform  the  condition  of  his  recognizance 
isis  ^130  I?'  '^"l^ss  other  security  is  given,  may  order  the  witness  to  enter  into  a  re- 
R.  l!  217',  §  46.  cognizance  with  such  sureties  as  the  court  or  justice  deems  necessary 
for  his  appearance  at  court. 


Ch.\P.   270.]  .\KREST,   EXAMINATION,   COMMITMENT,   BAIL.  2799 

1       Section  48.     If  a  minor  is  a  material  witness,  any  other  person  may  Recognizances 

20. 

28. 
38. 


2  be  allowed  to  recognize  for  his  appearance;   or,  in  the  discretion  of  the  r^^TsTs 

3  court  or  justice,  he  may  recognize  in  a  sum  not  exceeding  fifty  dollars,  p.f.iia.'f 


4  which  shall  be  valid  and  binding  in  law,  notwithstanding  his  minority.      r*l'217'|I7 

1  Section  49.     A  witness  who,  when  required,  refuses  to  recognize.  Commitment 

2  either  with  or  without  sureties,  shall,  except  as  provided  in  the  following  R.ai35!§2i. 

3  section,  be  committed  to  jail  until  he  complies  with  such  order  or  is  fsvl'.l'H'u^ 

4  otherwise  discharged;   but  if  the  court  or  justice  finds  that  the  witness,  I'jgg.^lo' 

5  unless  he  is  the  prosecutor  or  an  accomplice,  is  unable  to  procure  sureties  i|P'  !*'■  5  2. 

6  when  so  ordered,  he  shall,  except  in  cases  of  felony,  be  discharged  upon  R.  £.'  217,  §  48. 

7  his  own  recognizance.     Upon  a  complaint  or  indictment  for  a  felony, 

8  against  a  defendant  not  in  custody,  a  material  witness  committed  for 

9  failure  to  furnish  sureties  upon  his  own  recognizance  may  be  held  in 

10  custody  for  a  reasonable  time,  pending  the  pursuit  and  apprehension  of 

11  the  defendant. 

1  Section  50.    The  court  or  justice  may,  with  the  consent  of  the  defend-  °'P°tn*s™ 

2  ant,  take  or  cause  to  be  taken  by  a  magistrate  authorized  to  take  deposi-  i^^i,  7_i 

3  tions  in  civil  cases,  in  manner  and  form  as  provided  in  civil  cases,  the  si'ao,  si.' 

.  ..PS  212 

4  deposition  of  a  witness  whom  he  finds  to  be  unable  to  furnish  siu-eties  §§40.41! 

5  upon  his  recognizance  as  ordered  and  who  is  not  the  prosecutor  or  an  r.  l.' 217,' §  49. 

6  accomplice;  and  thereupon  the  witness  shall  be  discharged.    The  attorney 

7  for  the  commonwealth  who  will  have  charge  of  the  case  at  the  trial  shall 

8  have  the  same  notice  as  parties  in  civil  actions  of  the  time  and  place  of 

9  taking  the  deposition,  and  the  assent  of  the  defendant  shall  be  endorsed 

10  upon  the  deposition.    The  fees  shall  be  the  same  as  in  civil  cases  and 

1 1  shall  be  paid  as  other  expenses  in  criminal  cases  are  paid.    The  deposition 

12  shall  be  seasonably  transmitted  to  the  coiu-t  at  which  the  witness  was 

13  ordered  to  appear.    If  the  witness  is  unable  to  attend  the  trial,  by  reason 

14  of  his  absence  from  the  commonwealth,  or  of  his  death,  insanity,  illness 

15  or  infirmity,  the  deposition  may  be  read  in  evidence  upon  the  trial  by 

16  either  party,  subject  to  all  legal  objections. 

1  Section  51.     If  a  witness  has  been  committed  because  of  his  inability  Discharge  on 

2  to  fm-nish  sureties  for  his  appearance  before  the  superior  court,  the  jailer  when. 

3  shall  forthwith  give  notice  to  the  chief  justice  of  the  superior  court,  who  r*^l.' 217.' 1 56. 

4  shall  direct  the  district  attorney  to  inquire  as  to  the  importance  of  his 

5  testimony  and  the  necessity  for  detaining  him  in  jail,  and  the  district 

6  attorney,  if  in  his  opinion  the  public  interest  will  not  sutler  by  the  release 

7  of  the  witness  on  his  own  recognizance,  shall  so  report  to  the  chief  jus- 

8  tice,  who  may  thereupon  order  the  witness  to  be  released  upon  his  own 

9  recognizance. 

1  Section  52.     The   commissioner   of   correction   shall   from   time  to  Treatment  of 

2  time  make  such  rules  relative  to  the  diet,  size  of  cells,  amount  of  liberty  "^'j,"''^*^^ '° 

3  and  exercise,  correspondence,  visits  and  such  other  matters  as  he  con-  r^^l!217[§5i. 

4  siders  necessary  regulating  the  treatment  of  witnesses  held  in  jail  as  }g}9;||o!^^' 

5  will  secure  their  clear  distinction  and  separation  from  other  prisoners  so  §§S2,  S3. 

6  far  as  possible,  consistent  with  their  safe  custody  and  the  prevention 

7  of  tampering  with  their  testimony.     Said  commissioner  may,  with  the 

8  approval  of  the  district  attorney,  remove  such  witnesses  from  the  jail 

9  where  they  are  confined  to  a  jail  in  another  county,  and  shall,  at  the 


2800 


.tRREST,   EX.«IIXATION,   COMMITIIENT,   B.VIL.  [CH-\P.  276. 


request  of  the  district  attorney,  cause  them  to  be  returned  to  the  jail  10 
whence  they  were  removed.  The  proceedings  for  such  removal  shall  be  11 
the  same  as  for  the  removal  of  prisoners  from  one  jail  or  house  of  correc-  12 
tion  to  another.  The  cost  of  support  of  a  witness  so  removed  and  of  both  13 
remoA'als  shall  be  paid  b\'  the  county  whence  he  is  removed.  14 


Transportation 

of  male  and 

female 

prisoners. 

1S94,  273. 

R.  L.  217.  §52. 


Section  53.     An  officer  who,  having  the  custody  or  control  of  prison-  1 

ers,  causes  or  permits  male  and  female  prisoners  to  be  transported  to-  2 

gether  to  or  from  a  coiu-t  in  a  vehicle,  in  a  city  of  more  than  thirty  3 

thousand  inhabitants  according  to  the  latest  census,  shall  be  punished  4 

by  a  fine  of  not  more  than  twenty  dollars.  5 


Treatment  by 
officers  of 
witnesses  in 
custody. 
1S94,  160. 
R.  L.  217,  §  53. 


Section  54.     An  officer  who,  having  the  custody  of  a  witness  com-  1 

mitted  because  of  his  failure  to  furnish  sureties,  causes  or  permits  him  to  2 

be  handcuffed  to  a  person,  held  in  custody,  charged  with  or  sentenced  3 

for  crime,  or  to  be  transported  within  a  city  to  or  from  any  court  or  4 

prison  iii  a  vehicle  with  such  person,  shall  be  punished  by  a  fine  of  not  5 

more  than  twentv  dollars.  6 


Discharge  if 

injured  party 

satisfied. 

R.  S.  135.  §25; 

136,  §  27. 

1846,  198. 

G.  S.  170,  §  33; 

171,  §  28. 

P.  S.  212,  §43; 

213,  §  36. 

R.L.  217,  §54. 

12  Allen,  402. 

lis  Mass.  133. 

120  Mass.  403. 

216  Mass.  344. 


Section  55.  If  a  person  committed  to  jail  is  under  indictment  or 
complaint  for,  or  is  under  recognizance  to  answer  to,  a  charge  of  assault 
and  battery  or  other  misdemeanor  for  which  he  is  liable  in  a  ci\il  action, 
unless  the  ofl'ence  was  committed  by  or  upon  a  sheriff  or  other  officer 
of  justice,  or  riotously,  or  with  intent  to  commit  a  felony,  and  the  person 
injured  appears  before  the  coiu-t  or  justice  who  made  the  commitment  or 
took  the  recognizance,  or  before  which  the  indictment  or  complaint  is 
pending,  and  acknowledges  in  wTiting  that  he  has  received  satisfaction  8 
for  the  injury,  the  court  or  justice  may  in  its  or  his  discretion,  upon  pay-  9 
ment  of  such  expenses  as  it  or  he  shall  order,  discharge  the  recognizance  10 
or  supersede  the  commitment,  or  discharge  the  defendant  from  the  11 
indictment  or  complaint,  and  may  also  discharge  all  recognizances  and  12 
supersede  the  commitment  of  all  witnesses  in  the  case.  13 


Discharge  a 

bar  to  civil 

action. 

R.  S.  135.  §26; 

136,  §  27. 

G.  S.  170,  §  34; 

171.  §  28. 

P.  S.  212,  §  44; 

213,  §  36. 

R.L.  217.  §55. 

12  Alien,  402. 


Section  56.     Such  order  discharging  the  recognizance,  indictment  or  1 

complaint  of  the  person  or  the  recognizance  of  witnesses  shall  be  filed  2 

in  the  office  of  the  clerk  before  the  sitting  of  the  court  at  which  they  are  3 

bound  to  appear;   and  such  order  superseding  the  commitment  of  the  4 

person  charged  or  of  a  witness  shall  be  delivered  to  the  keeper  of  the  jail  5 

where  he  is  confined,  who  shall  forthwith  discharge  him;  and  such  order,  6 

so  filed  and  delivered,  shall  forever  bar  a  civil  action  for  such  injury.  7 


Ma£jstrates 
who  may  admit 
to  bail. 
Money  and 
certain  securi- 
ties may  be 
deposited. 
1812,30. 
R.  S.  133,  §  22. 
1851,  92,  §  2. 
1855,  265,  §  1. 
G.  S.  170,  §  36. 
1874,  306,  §  4. 

1878,  188,  §  4. 

1879,  228. 

P.  S.  212.  §  46. 
1898,411,  §  1. 
R.  L.  217,  I  56. 
1912,  226. 
1914,  390,  §  1. 
1920,  584,  §  2. 


Section  57.  A  justice  of  the  supreme  judicial  or  superior  court,  a  1 
clerk  of  courts  or  the  clerk  of  the  superior  court  for  criminal  business  2 
in  the  county  of  Suffolk,  a  standing  or  special  commissioner  appointed  by  3 
either  of  said  courts,  a  justice  or  clerk  of  a  district  court,  a  master  in  4 
chancery  or  a  trial  justice,  upon  application  of  a  prisoner  or  witness  5 
held  under  arrest  or  committed,  either  with  or  without  a  warrant,  or  held  6 
in  the  custody  of  an  officer  under  a  mittimus,  may  inquire  into  the  case  7 
and  admit  such  prisoner  or  witness  to  bail;  and  may  admit  to  bail  any  8 
person  committed  for  not  finding  sureties  to  recognize  for  him.  All  9 
persons  authorized  to  take  bail  under  this  section  shall  be  governed  10 
by  the  rules  established  by  the  supreme  judicial  or  superior  court.  No  11 
person  offering  himself  as  surety  shall  be  deemed  to  be  insufficient  if  he  12 


Ch.\P.   276.]  ARREST,   EX,\MINATION,   COMMITMENT,   BAIL.  2801 

13  deposits  money  of  an  amount  equal  to  the  amount  of  the  bail  required 

14  of  him  in  such  recognizance,  or  a  bank  book  of  a  savings  bank  or  of  the 

15  savings  department  of  a  trust  company  doing  business  in  the  common- 

16  wealth,  properly  assigned  to  the  clerk  or  trial  justice  with  whom  the 

17  same  is  or  is  to  be  deposited,  and  his  successors,  and  satisfactory  to  the 

18  person  so  authorized  to  take  bail,  or  deposits  non-registered  bonds  of 

19  the  United  States  or  of  the  commonwealth  or  of  any  county,  city  or 

20  town  within  the  commonwealth  equal  at  their  face  value  to  the  amount 

21  of  the  bail  required  of  him  in  such  recognizance. 

1  Section  58.     If  the  person  is  committed  without  an  order  fixing  the  Notice  to 

2  amount  of  the  recognizance,  he  shall  not  be  admitted  to  bail  under  the  nSTxed''*'^ 

3  preceding  section  until  reasonable  notice  of  his  application  has  been  }|5|'2i5\^i 

4  given  to  the  officer  by  whom  he  was  committed,  or  a  hearing  has  been  g.  s.'  no,'  §  37. 

5  given  to  the  officer  in  whose  custodv  he  is  held;  and  if  committed  with  F-  s.'212,  §47. 

6  such  order,  he  shall  not  be  admitted  to  bail,  except  by  a  justice  of  the  107  Mass.  227! 

7  supreme  judicial  or  superior  court,  for  a  less  amount  than  is  required  by 

8  the  order. 

1  Section  59.     After  a  person  is  committed  to  jail  to  await  the  action  Admission 

2  of  the  grand  jury,  he  shall  not  be  admitted  to  bail  by  a  master  in  chancery  masteJ-s^'m 

3  who  does  not  reside  or  have  a  usual  place  of  business  within  the  county  reguiat?d 

4  where  the  jail  is  situated,  except  upon  proof  that  written  notice  of  the  ^^°^'  2^*- 

5  proposed  application  has  been  duly  served  upon  the  district  attorney, 

6  or  one  of  the  assistant  district  attorneys,  for  the  district,  at  least  twenty- 

7  four  hoiu-s  before  a  hearing  on  the  application,  specifying  the  name  of 

8  the  person,  the  crime  with  which  he  is  charged,  the  time  and  place  of 

9  hearing,  and  the  name,  occupation  and  residence  of  the  proposed  sureties, 

10  or  upon  proof  that  the  district  attorney,  or  one  of  the  assistant  district 

11  attorneys,  for  the  district  has  waived  notice  of  the  hearing  on  such  pro- 

12  posed  application. 

1  Section  60.     After  a  conviction  or  a  plea  of  guilty  or  of  nolo  contendere  Bail  in  Suffolk 

2  in  the  superior  court  in  Sufl'olk  county,  the  prisoner  shall  not  be  admitted  iseS'^isg,  §  1. 

3  to  bail  except  in  open  court;  but  when  said  court  is  not  in  session,  bail  r.l.I'it.IsI. 

4  may  be  taken  by  any  judge  of  a  court  of  record  or  by  any  commissioner  ^^^  ^^^^-  ^^^■ 

5  appointed  by  the  justices  of  the  superior  court,  upon  proof  that  written 

6  notice  of  the  proposed  application  has  been  duly  served  upon  the  district 

7  attorney,  or  one  of  the  assistant  district  attorneys  for  the  Suffolk  district, 

8  at  least  twenty-four  hours  before  the  hearing  of  such  application,  specify- 

9  ing  the  name  of  the  prisoner,  the  crime  of  which  he  has  been  convicted, 

10  the  time  and  place  of  hearing,  and  the  name,  occupation  and  residence 

1 1  of  the  proposed  sureties.    No  person  who  has  been  once  offered  and  re- 

12  jected  as  surety  shall  afterward  be  accepted  as  surety  for  the  same  per- 

13  son  in  the  same  case. 

1  Section  61.     If  bail  is  taken  out  of  court,  the  person  authorized  to  Certificate  of 

2  take  bail  in  criminal  cases  shall  cause  a  certificate  to  be  signed  and  quired."  "^ 

3  sworn  to  by  each  surety,  which  shall  contain  the  name,  the  residence,  p^''^;iil'^ig, 

4  including  the  name  of  the  street  and  number,  if  any,  of  the  dwelling  house  l^'f-  jl^  |  |g 

5  thereon,  the  occupation  and  place  of  business  of  the  surety,  a  statement  '"5°,;^*;''  1^; 

6  of  the  nature,  location  and  value  of  his  property,  and  of  the  encumbrances, 

7  if  any,  thereon,  the  amount  of  his  indebtedness  and  all  other  matters 


2802 


,\EREST,   EX.«kIINATION,   COMMITMENT,   BAIL.  [Ch.\P.   276. 


pertinent  to  the  amount  and  value  of  such  property,  and  shall  return  a  8 

proper  recognizance  to  the  proper  court.    A  surety  may,  instead  of  making  9 

said  certificate,  give  his  personal  recognizance  as  surety  and  deposit  10 

money,  bonds  or  a  properly  assigned  bank  book,  of  the  kind  and  in  the  11 

amount  and  under  the  conditions  set  forth  in  section  fifty-seven  for  12 

making  deposit  of  like  nature.  1.3 


Notice  to  dis- 
trict attornev. 
1862,  159,  §  3. 
P.  S.  212.  §  50. 
1898,411,  §3. 
R.  L.  217,  §  60. 


Section  62.  If  application  is  made  to  a  person  authorized  to  take 
bail  in  criminal  cases  in  Suffolk  county  to  accept  bail  out  of  court  in  a 
case  in  which  no  amount  has  been  fixed,  he  shall,  if  the  crime  charged  is 
not  within  the  jurisdiction  of  the  municipal  court  of  the  city  of  Boston, 
before  fixing  bail,  cause  notice  of  such  application  to  be  given  to  the 
district  attorney  or  one  of  the  assistant  district  attorneys  for  the  Suffolk 
district,  if  any  of  said  attorneys  is  at  the  time  within  said  district. 


Sing  bl".  Section  63.     No  justice  of  any  court  shall  receive  any  fee  or  com-  1 

isM^'isg,  §5  pensation  for  taking  and  approving  bail  in  criminal  cases  in  Suffolk  2 

1879,254,11.  county.                          P.S.  212,  §51.                          1885,135.                         R.  L.  217,  §  61.  3 

Sunday.  Section  64.     Persons  held  in  custody  or  committed  upon  a  criminal  1 

a  a' no,' Us.  charge,  if  entitled  to  be  released  upon  bail,  may,  in  the  discretion  of  the  2 

p.  s.  212,  s  52.  magistrate,  be  admitted  to  bail  on  Sunday.  3 

R.  L.  217.  §  62.  1906,  180. 


Condition  of 
recognizance. 
1845,  166,  §  2. 
G.  S.  170,  §  39. 
1878,  188,  §  1. 
P.  S.  212,  §  53. 
R.  L.  217.  §63. 
7  Grav,  310. 
143  Aiass.  210. 
172  Mass.  427. 


Section  65.  The  condition  of  a  recognizance  of  a  person,  either  with 
or  without  surety,  binding  him  to  appear  before  a  court  or  justice  to 
answer  to  a  charge  against  him  or  to  prosecute  an  appeal  shall  be  so 
framed  as  to  bind  him  personally  to  appear  at  the  time  so  expressed,  and 
at  any  subsequent  time  to  which  the  case  may  be  continued,  unless  pre- 
viously surrendered  or  discharged,  and  so  from  time  to  time,  until  the 
final  decree,  sentence  or  order  of  the  court  or  justice  thereon,  and  to  abide 
such  final  sentence,  order  or  decree,  and  not  depart  without  leave. 


Return  of 
recognizance 
and  examina- 
tion to  court. 
R.  S.  135,  §  24. 
G.  S.  170,  §  40. 
P.  S.  212,  §  54. 
R.  L.  217,  §64. 
9  Allen,  371. 


Section  66.  A  recognizance  and  examination  taken  by  a  magistrate 
under  this  chapter  shall  be  certified  and  returned  by  him  to  the  district 
attorney  or  to  the  clerk  of  the  court  before  which  the  person  charged  is 
bound  to  appear,  on  or  before  the  first  day  of  the  sitting  thereof;  and  if 
he  refuses  or  neglects  to  return  the  same,  he  may  be  compelled  to  do  so 
forthwith  by  order  of  com't,  and,  in  case  of  disobedience,  may  be  pro- 
ceeded against  as  for  contempt. 


Forfeiture  of 
bail  a  bar  to 
further  bail. 
1862,  169,  §  1. 
1874,  306,  §  1. 
1879,  87. 
P.  S.  212,  §  55. 
1901,  215. 
R.  L.  217,  §65. 
13  Allen,  396. 
126  Mass.  224. 


Section  67.     A  person  arrested  on  a  criminal  charge  who  forfeits  or  1 

makes  default  upon  his  bail  bond  or  recognizance  or  has  been  surrendered  2 

by  a  probation  officer  shall  not  be  again  released  upon  further  bail  or  3 

recognizance  in  the  same  case,  unless  by  order  of  a  justice  of  the  court  4 

where  such  charge  was  pending  at  the  time  of  said  default  or  of  such  5 

surrender.  233  .Mass.  74.  6 


Section  68.     Bail  in  criminal  cases  mav  be  exonerated  at  anv  time 


Surrender  of 
principal  before 

Retonof  before  default  upon  their  recognizance  by  surrendering  their  principal 

N^ljai'i*'        ^^^^  court  or  to  the  jailer  in  the  county  where  the  principal  is  held  to 
1863,59,  §  1.     appear,  or  by  such  voluntary  surrender  by  the  principal  himself,  and  in 


CH-^P.   276.]  ARREST,   EX.UIINATION,   COMMITMENT,   BAIL.  2803 

5  either  event,  in  all  cases  where  bank  books,  money  or  bonds  are  deposited  ?•  S.  212,  §  as. 

6  by  the  surety,  the  court  shall  thereupon  order  the  bank  books,  money  mis'.  25-; 

7  or  bonds  so  deposited  to  be  returned  to  the  surety  or  his  order,  and  to  im's. 

8  be  reassigned  to  the  person  entitled  thereto.    They  shall  deliver  to  the  Ittfl 

9  jailer  their  principal,  with  a  certified  copy  of  the  recognizance,  and  he  ^ssMasa.Ti. 

10  shall  be  received  and  detained  by  the  jailer,  but  may  again  be  bailed  in 

11  the  same  manner  as  if  committed  for  not  finding  sureties  to  recognize  for 

12  him.    The  jailer  shall  forthwith  notify  the  clerk  or  justice  of  the  court 

13  where  the  proceeding  is  pending  of  such  surrender. 

1  Section  69.     Bail  may  surrender  their  principal  at  any  time  after  Remission  of 

2  default  made  upon  the  recognizance,  or  the  principal  may  surrender  him-  Sefeiit  ^'""^ 

3  self,  in  the  manner  provided  in  the  preceding  section;    and  the  court  r|?.'2T2,V57. 

4  where  the  default  is  recorded  may,  upon  application,  remit  the  whole  fgislsy'^'^''- 

5  or  any  part  of  the  penalty,  if  satisfied  that  the  default  of  the  principal  was  ^g*™-, 

6  not  with  the  connivance  or  consent  of  the  bail.  1920, 2. 

1  Section  70.     If,  bv  the  act  of  God,  of  the  government  of  the  United  Exoneration 

r»    o  p  7  nil'  unable  to 

2  States,  or  any  state  or  by  sentence  or  law,  bail  are  unable  without  their  surrender 

3  fault  to  surrender  their  principal,  they  shall,  upon  motion  before  final  issg,  131. 

4  judgment  on  scire  facias,  be  exonerated  and  discharged  by  the  court,  p.' s.' 21^2,'!  si.' 

5  with  or  without  costs  as  the  court  deems  equitable.  ^'  ^'  ^^^'  ^  '^*' 

1  Section  71.     If  a  person  under  recognizance  to  appear  and  answer  Default  on 

2  or  to  prosecute  an  appeal  in  a  criminal  case  fails  to  appear  according  to  isia^'i'Srrs. 

3  his  recognizance,  and  if  a  person  under  recognizance  to  testifj'  in  a  criminal  fg^l  j^g  ||^- 

4  prosecution  fails  to  perform  the  condition  of  his  recognizance,  his  default  p  l^i^'ll^' 

5  shall  be  recorded,  his  obligation  and  that  of  his  sureties  forfeited,  and  rl.  2i7."§69. 

6  process  issued  against  them  or  such  of  them  as  the  prosecuting  officer 

7  directs;    but  in  such  suit  no  costs  shall  be  taxed  for  travel.    No  such 

8  process  shall  issue  in  cases  where  bank  books,  bonds  or  money  have  been 

9  deposited  at  the  time  of  such  recognizance. 

1  Section  72.     A  surety  in  such  recognizance  may,  by  leave  of  the  surety  may 

2  court,  after  default,  and  either  before  or  after  process  has  been  issued  ?e«)gni'z°a"nc'e.°^ 

3  against  him,  pay  to  the  county  treasurer  or  clerk  of  the  court  the  amount  jj^'^g  135  jos 


4  for  which  he  was  bound  as  surety,  with  such  costs  as  the  court  shall  direct,  p- 1-  ^[.?'  | 

5  and  shall  be  thereupon  forever  discharged.  r.  l.  217,  §70. 


47. 

60. 


1  Section  73.     If,  in  a  suit  on  a  recognizance  to  prosecute  an  appeal,  f^^jllf  °l 

2  the  penalty  is  adjudged  forfeited,  or  if  by  leave  of  court  such  penalty  of  penalty  of 

3  has  been  paid  without  suit  or  before  judgment  as  provided  in  the  pre-  R.  s.  iss,  §9. 

4  ceding  section,  and  any  forfeiture  accrues  by  law  to  a  person  by  reason  p.' s.  212,' lei. 

5  of  the  crime  of  which  the  appellant  was  convicted,  the  court  may  award  ^'  ^'  ~"'  ^  "^" 

6  to  such  person  the  portion  of  the  amount  paid  to  which  he  is  entitled. 

1  Section  74.     If  the  penalty  of  a  recognizance  of  a  party  or  witness  Action  and 

2  in  a  criminal  prosecution  is  adjudged  forfeited,  the  court  may  render  iecognI"an°e. 

3  judgment,  upon  such  terms  as  it  may  order,  against  the  principal  or  Jf 's.'  fas,  §  29. 

4  surety,  or  both,  for  the  whole  of  the  penalty  with  interest,  or,  in  its  dis-  pf' 21^2' III' 

5  cretion,  upon  application  of  the  defendant  in  the  judgment  for  a  part  RL.  217,172. 
thereoi. 


2804 


AEEEST,   EXAMINATION,   COMMITMENT,   BAIL. 


[ClL\F.   276. 


Irregularities 
not  to  defeat 
action. 

R.  S.  135,  §  30. 
G.  S.  170.  §  49. 
P.  S.  212.  §  63. 
R.  L.  217.  §  73. 
9  Met.  407. 
7  Grav.  316. 
13S  Jiass.  200. 
143  Mass.  210. 


Section  75.     Such  action  shall  not  be  barred  or  defeated,  nor  shall  1 

judgment  be  arrested,  by  reason  of  neglect  or  omission  to  note  or  record  2 

the  default  of  any  principal  or  surety  at  the  time  when  it  happens,  nor  3 

by  reason  of  a  defect  in  the  form  of  the  recognizance,  if  it  sufficiently  4 

appears  from  the  tenor  thereof  at  what  court  the  party  or  witness  was  5 

bound  to  appear,  and  that  the  court  or  magistrate  before  whom  it  was  6 

taken  was  authorized  to  reciuire  and  take  such  recognizance.  7 


Review  of 
judgment  on 
forfeited 
recognizance. 
1852,  126,  §  1. 
G.  S.  170,  §  50. 
P.  S.  212,  §  64. 
R.  L.  217,  §  74. 


Section  76.     A  court  which  has  rendered  judgment  on  a  recognizance  1 

may,  upon  petition  of  any  person  interested,  stating  the  ground  relied  2 

upon  and  filed  in  said  court,  grant  a  re\"iew  and  a  rehearing  of  the  case,  3 

upon  the  surrender  or  recaption  of  the  prisoner  who  was  released,  or  for  4 

any  sufficient  cause  which  has  occurred  or  been  ascertained  by  the  person  5 

interested  after  the  rendition  of  such  judgment,  or  at  such  time  as  not  6 

to  have  afi'orded  opportunity  for  presenting  the  same  in  evidence.  7 


Service  of 
petition, 
1852,  126,  I  2. 
G.  S.  170,  §  51. 
P.  S.  212,  §  65. 
R.  h.  217,  §  75, 


Section  77.     Notice  of  the  petition  and  a  copy  thereof  shall  be  given  1 

to  or  served  upon  the  district  attorney  for  the  county  where  the  petition  2 

is  pending  fourteen  days  at  least  before  the  return  day  expressed  therein,  3 

and  such  notice  shall  be  returnable  on  the  first  ]\Ionday  of  the  first  or  4 

second  month  after  the  filing  of  the  petition.  5 


Proceedings 
if  former 
judgment 
diminished. 
1852,  126, 
§§3,4. 
G.  S.  170, 
§§  52,  53. 
P.  S.  212, 
§§  66,  67. 
R.  L.  217,  §  7 


Section  78.  If  the  court  finds  that  a  part  of  the  judgment  has  been  1 
actually  paid  to  or  for  the  county  upon  the  recognizance  or  judgment  2 
and  orders  the  judgment  to  be  reversed  or  entered  for  a  less  amount  than  3 
has  been  so  actually  paid,  it  may  order  the  amount  of  the  difference  4 
between  the  payment  and  the  new  judgment  to  be  repaid  to  the  person  5 
who  made  the  payment  or  to  his  legal  representatives.  The  treasurer  6 
or  other  county  officer  who  received  or  then  has  the  amount  paid  shall,  7 
upon  presentation  of  a  copy  of  the  order  certified  by  the  clerk  of  the  court,  8 
make  said  repayment.  If,  upon  such  petition,  the  review  is  not  granted  9 
or  the  original  judgment  is  not  altered,  the  court  may  award  reasonable  10 
costs  against  the  petitioner.  11 


Deposit  in 
lieu  of  surety. 
1879,  126,  §  1. 
P.  S.  212,  §  68. 
1882,  134. 
R.L.  217,  §77. 
1906,  221. 
1911,  160. 
1920,  584,  §  6. 
172  Mass.  427. 
187  Mass.  476. 
233  Mass.  74. 


Section  79.  A  person  held  in  custody  or  committed  upon  a  criminal  1 
charge,  if  entitled  to  be  released  on  bail,  or  a  person  held  in  custody  2 
or  committed  as  a  witness  to  a  crime,  may,  instead  of  giving  surety  or  3 
sureties,  at  any  time  give  his  personal  recognizance  to  appear  before  4 
the  court  or  trial  justice  and  deposit  the  amount  of  the  bail  which  he  5 
is  ordered  to  furnish,  or  bonds  or  a  properly  assigned  bank  book,  of  the  6 
kind  and  in  the  amount  and  under  the  conditions  set  forth  in  section  7 
fifty-seven  for  making  deposit  of  like  nature,  with  the  court,  clerk  of  the  8 
court,  trial  justice  or  magistrate  authorized  to  take  such  recognizance,  9 
who  shall  give  him  a  certificate  thereof,  and  upon  delivering  said  certificate  10 
to  the  officer  in  whose  custody  he  is,  shall  be  released.  The  court,  trial  11 
justice  or  magistrate  shall  forthwith,  upon  receipt  of  such  amount,  deposit  12 
it  with  the  clerk  of  the  court  or  with  the  trial  justice  before  whom  such  13 
person  was  recognized  to  appear.  14 


Se°of1ficuri-'  Section  SO.  At  any  time  after  default  of  the  defendant,  the  court 
ment  o'f  mo'ne  ■  ^''  ^"^^  justicc  may  Order  forfeited  the  money,  bonds  or  bank  books  de- 
out  of  proceeds  posltcd  at  the  time  of  the  recognizance  and  the  court  or  clerk  of  the 
county.  court  with  whom  the  deposit  was  made  shall  thereupon  pay  to  the  county 


Chap.  276.]  peobation  officers.  2805 

5  treasurer  any  money  so  deposited.    The  clerk  of  the  court,  or  trial  jus-  is-g.  i26,  §3. 

6  tice,  shall  immediately  proceed  to  sell  any  bonds  so  deposited  either  at  r.  L.ln.l  re. 

7  public  or  private  sale,  and  shall  forthwith  pay  the  proceeds  thereof,  after  IsrVifst'.  47^6. 

8  deducting  all  expenses  connected  with  such  sale,  to  the  county  treasurer 

9  and  if  bank  books  are  so  deposited,  the  said  clerk  shall  collect  the  amount 
10  of  bail  from  the  depository,  and  pay  the  same,  less  the  expense  of  col- 
li lection,  to  the  county  treasurer. 

1  Section  81.     The   defendant   may   surrender  himself  at   any  time  Seif-surrender 

2  before  a  default,  in  the  same  manner  as  sureties  in  criminal  cases  may  DisposWon  of 

3  surrender  their  principal,  and  the  court  shall  thereupon  order  the  bank  fgygf'i^e, 

4  books  to  be  reassigned  and  the  money  or  bonds  so  deposited  to  be  re-  |.^|'|i, 

5  turned  to  the  person  in  whose  name  the  deposit  is  made  or  to  his  order.  H  69  71'. 

6  At  any  time  after  default,  on  the  surrender  or  recaption  of  the  defendant,  woa.  236. 

7  the  court  may  order  the  whole  or  any  part  of  the  money  so  deposited  or  is?  iiass".  476. 

8  of  the  bonds,  or  of  the  amount  of  the  net  proceeds  of  the  sale  of  said 

9  bonds,  or  the  bank  books,  or  the  whole  or  any  part  of  the  amount  col- 

10  lected  from  the  depository  thereunder,  to  be  returned  to  the  person  in 

11  whose  name  the  deposit  is  made  or  to  his  order.    If  the  amount  realized 

12  by  sale  or  collection  pursuant  to  the  preceding  section  exceeds  the  amount 

13  of  the  recognizance,  the  court  shall,  on  an  application  made  at  any  time, 

14  order  such  excess  to  be  returned  to  the  party  found  by  the  coiu-t  to  be 

15  entitled  thereto. 


1  Section  82.     The  term  "magistrate",  in  any  section  of  the  statutes  "Magistrate" 

2  which  provides  for  admitting  persons  to  bail  in  criminal  cases,  shall  be  commissioner. 

3  construed  to  include  a  bail  commissioner,  so  far  as  to  give  him  authority  ^^i'iii.'ifs 

4  to  admit  prisoners  to  bail.  r.  l.  217,  §  so. 

PROBATION   officers. 

1  Section  83.     The  superior  court,  the  chief  justice  of  the  municipal  o^°'^rs'°° 

2  court  of  the  city  of  Boston,  subject  to  the  approval  of  the  associate  ^^^■P^'i?' 

3  justices  thereof,  and  the  justice  of  each  other  district  court  and  of  the  issa,  125. 

4  Boston  juvenile  court  may  appoint  such  male  and  female  probation  §§  i.'e.^  ' 

5  officers  as  they  may  respectively  from  time  to  time  deem  necessary  for  jh",'!*^'  ^^^' 

6  their  respective  courts;   and  if  there  is  more  than  one  probation  officer  §§Y,'3.^^' 

7  in  one  court,  one  of  such  officers  may  be  designated  as  chief  probation  If^f'!''' 

8  officer.     All  officers  so  appointed  shall  hold  office  during  the  pleasure  RgV-iJ' 

9  of  the  court  making  the  appointment.    The  compensation  of  each  pro-  i905,'295. 

10  bation  officer  appointed  by  the  superior  court  shall  be  fixed  by  that  489.  §6.  ' 

11  court  and  by  it  apportioned  from  time  to  time  among  the  counties  wherein  jUSs,'  ilo-  637. 

12  said  officer  performs  his  duties.     In  the  municipal  coiu-t  of  the  city  of  JJuiJ;  flf;  479. 

13  Boston  the  chief  justice  of  said  court,  subject  to  the  approval  of  the  }9j.V64s'l™' 

14  associate  justices  thereof,  and  in  other  district  courts  and  the  Boston  {''"''/fl,,  5/ 

15  juvenile  court,  the  justice  thereof,  shall  fix  the  compensation  of  each  1915',  89.'§  i;' 
IG  probation  officer  appointed  for  such  court,  which  compensation  shall  be  227' Mass. 598. 

17  subject  to  approval  by  the  county  commissioners  and  shall  be  paid  by  (igis)'^'. 

18  the  county  on  vouchers  approved  respectively  by  the  chief  justice  of 

19  the  municipal  court  of  the  city  of  Boston  or  by  the  justice  of  such  other 

20  district  or  juvenile  courts. 

1  Section  84.     Before  performing  any  official   duty,   each  probation  Bonds. 

2  officer  shall  give  bond  to  the  county  treasurer,  in  a  sum  to  be  fixed  '®^^' '"°' 


2806 


PROBATION   OFFICERS. 


[CH-\P.   276. 


and  with  sufficient  sureties  to  be  approved  by  a  Justice  of  the  superior  3 

court,  conditioned  to  account  for  and  pay,  as  and  when  required  by  law,  4 

all  moneys  or  property  received  by  him  in  the  exercise  of  his  official  5 

duty.    Failure  to  so  give  bond  shall  be  sufficient  cause  for  removal  from  6 

office.  7 


Duties. 
1880.  129, 
§§3-5.  U. 
P.  S.  212. 
§§  75-77,  79. 
1891.356, 
§§3.4. 

1892.  276.  §  2. 
1897,  266,  §  2. 
1898,511,  I  1. 
R.  L.  217, 
l§  84,  96. 
1911,  8. 


Section  So.  In  addition  to  the  other  duties  imposed  upon  him,  each 
probation  officer  shall,  as  the  court  may  direct,  inquire  into  the  nature 
of  every  criminal  case  brought  before  the  court  under  the  appointment 
of  which  he  acts,  and  inform  the  court,  so  far  as  is  possible,  whether  the 
defendant  has  previously  been  con-\-icted  of  crime.  He  may  recommend 
that  any  person  convicted  be  placed  upon  probation.  He  shall  perform 
such  other  duties  as  the  court  requires.  He  shall  keep  full  records  of  all 
cases  investigated  by  him  or  placed  in  his  care  by  the  court,  and  of  all  8 
duties  performed  by  him.  E\ery  person  released  upon  probation  shall  9 
be  given  by  the  probation  officer  a  written  statement  of  the  terms  and  10 
conditions  of  the  release.  11 


Boston 
juvenile  court 
may  appoint 
deputy  proba- 
tion officers. 
1906,  489,  §  6. 


Section  86.     The  justice  of  the  Boston  juvenile  court  may  appoint  1 

as  many  deputy  probation  officers,  without  salary,  as  he  may  deem  de-  2 

sirable,  who  shall  assist  probation  officers  in  such  way  as  the  court  may  3 

direct  in  making  investigations  of  cases  of  children  against  whom  com-  4 

plaints  have  been  made,  and  in  the  care  of  children  placed  on  probation.  5 


Court  may 
place  certain 
persons  in 
care  of  proba- 
tion officer. 
1880,  129.  §  4. 
P.  S.  212.  I  76. 
1891,  356,  §  3. 
1898,511,  §  1. 


Section  87.     The  superior  court  may  place  upon  probation  under  1 

any  of  its  probation  officers  any  person  before  it  charged  with  crime  and  2 

any  court  may  place  any  person  convicted  before  it  in  the  care  of  its  3 

probation  officer  for  such  time  and  upon  such  conditions  as  it  deems  4 

proper.  R.  L.  217,  §  84.  1911,  S.  1S3  Mass.  238.  199  Mass.  44.  5 


Clerical 

assistance. 

1891.427, 

§§  6,  7. 

R.  L.  212.  §  40. 

1908,  440. 

1913,612 

1914,  739. 

1915,  89,  § 
254,  §  2. 

1918,  257, 
§  4.52. 

1919,  5. 

1920,  2. 


.§2. 


Section  88.     E\-ery  court  appointing  probation  officers  may  employ  1 

such  clerical  assistance  as  it  deems  necessary  to  keep,  index  and  con-  2 

solidate  the  records  required  to  be  kept  by  probation  officers  and  for  3 

such  other  work  in  connection  with  its  probation  service  as  the  court  4 

may  determine.     The  compensation  for  such  service  shall  be  fixed  by  5 

the  respective  courts,  and,  together  with  such  other  necessary  expenses  6 

as  the  court  shall  incur  in  connection  with  such  work,  shall  be  paid  by  7 

the  county  upon  vouchers  approved  by  said  court.  8 


Temporary 

probation 

officers. 

1S94.  372. 

R.  L.  217.  §  82. 

1910,  275,  §  1. 


Section  89.  The  justice  of  a  district  court  may,  in  the  absence  of  a 
probation  officer,  appoint  a  temporary  probation  officer,  who  shall  have 
the  powers  and  perform  the  duties  of  such  probation  officer  and  shall 
receive  from  the  county  as  compensation  for  each  day's  service  an  amount 
equal  to  the  rate  by  the  day  of  the  compensation  of  the  officer  in  whose 
place  he  serves;  but  compensation  so  paid  to  a  temporary  probation 
officer  for  any  excess  over  thirty  days'  service  in  any  one  year  shall  be 
deducted  by  the  county  treasurer  from  the  compensation  of  the  proba- 
tion officer  in  whose  place  such  service  is  rendered. 


Powers.  In- 
spection of 
records. 
18S0,  129, 
§§1,5. 

P.  S.  212.  §  74. 
1891.  356.  §  2. 


Section  90.     A  probation  officer  shall  not  be  an  active  member  of  1 

the  regular  police  force,  but  so  far  as  necessary  in  the  performance  of  2 

his  official  duties  shall,  except  as  otherwise  provided,  have  all  the  powers  3 

of  a  police  officer,  and  if  appointed  by  the  superior  court  may,  by  its  4 


Chap.  276.]  probation  officers.  2807 

5  direction,  act  in  any  part  of  the  commonwealth.    He  shall  report  to  the  isss,  sn,  §  i. 

6  court,  and  his  records  may  at  all  times  be  inspected  by  police  officials  of    '     ^^^'   *  " 

7  the  towns  of  the  commonwealth. 

1  Section  91.     Probation  officers  appointed  by  the   Boston  juvenile  Boston 

2  court  may  serve  such  process  as  may  be  directed  to  them  by  the  court.      j,ffice°s''to°"' 

190G,  4S9.  §  6.  serve  process. 

1  Section  92.     If  a  person  is  placed  on  probation  upon  condition  that  Restitution 

to   nP  1111106 

2  he  make  restitution  or  reparation  to  the  person  injured  by  him  in  the  through  pro- 

3  commission  of  his  offence,  and  payment  is  not  made  at  once,  the  court  1907, 335. 

4  may  order  that  it  shall  be  made  to  the  probation  officer,  who  shall  give 

5  receipts  for  and  keep  record  of  all  payments  made  to  him,  pay  the  money 

6  to  the  person  injured  and  keep  his  receipt  therefor,  and  notify  the  clerk 

7  of  the  court  whenever  the  full  amount  of  the  money  is  received  or  paid 

8  in  accordance  with  such  order  or  with  any  modification  thereof. 

1  Section  93.    Except  as  provided  by  section  one  of  chapter  two  hun-  Money  coi- 

2  dred  and  seventy-nine,  money  collected  by  a  probation  officer  under  bTtion  offi?e? 

3  order  of  the  court  by  which  he  is  appointed,  if  unclaimed  after  one  year  cSu'ntylf'' '" 

4  from  the  time  of  its  collection,  shall,  upon  further  order  of  the  court,  be  i9'2o"'i22!'  ^^'^' 

5  paid  to  the  treasurer  of  the  county  where  the  court  is  situated  for  the 

6  use  of  the  county;   provided,  that  any  part  of  the  said  money  may  be 

7  paid  to  persons  establishing  a  lawful  claim  thereto  before  the  county 

8  commissioners  within  five  years  of  its  payment  to  said  treasurer,  unless 

9  sooner  paid  over  by  order  of  the  said  commissioners. 

1  Section  94.    The  reasonable  expenses  incurred  by  probation  officers  Expenses  of 

2  of  the  superior  court  in  the  performance  of  their  duties  shall  be  approved  officere'°° 

3  and  apportioned  by  the  com-t,  and  paid  by  the  county  to  which  they  are  Jfgl;  51?;  §  2. 

4  thus  apportioned.    Probation  officers  of  district  courts  and  of  the  Boston  ^"""'^"J;'' 

5  juvenile  court  shall  be  reimbursed  bv  the  county  for  their  actual  dis-  Pn^^-^iJ!'!??- 

6  bursements  for  necessary  expenses  incurred  while  in  the  periormance  01 

7  their  duties,  including  their  reasonable  traveling  ex-penses  in  attending 

8  conferences  authorized  by  section  ninety-nine,  not  exceeding  two  hun- 

9  dred  dollars  to  each  in  any  one  year,  upon  vouchers  approved  by  the 
10  court  by  which  they  are  appointed. 

1  Section  95.     The  superior  court,   the  Boston  juvenile  court  or  a  Support  of 

2  district  court,  except  the  municipal  court  of  the  city  of  Boston,  may  isw^bbs"'"' 

3  authorize  a  probation  officer  to  ex-pend  such  amount  as  the  court  con-  i9otr,440; 

4  siders  ex-pedient  for  the  temporary  support  or  transportation,  or  both,  tgii.Vgi. 

5  of  a  person  placed  on  probation,  and  such  amount  shall  be  repaid  to  the 

6  probation  officer  by  the  county  upon  vouchers  approved  by  the  court. 

7  A  record  of  any  amount  so  authorized  shall  be  entered  on  the  clerk's 

8  docket  of  the  case. 

9  The  chief  probation  officer  of  the  municipal  court  of  the  city  of  Boston 

10  may  provide  for  the  temporary  support  or  transportation,  or  both,  of  a 

1 1  person  placed  on  probation  in  said  court,  or  for  the  relief  of  the  immediate 

12  distress  of  such  person,  in  any  manner  which  he  may  deem  proper,  and 

13  for  these  purposes  may  annually  expend  a  sum  not  exceeding  two  thou- 

14  sand  dollars  for  all  such  cases  of  relief.    At  the  end  of  each  month  said 

15  chief  probation  officer  shall  submit  to  the  chief  justice  of  said  court  a 

16  list  of  the  expenses  so  incurred,  with  proper  vouchers,  and  upon  approval 


2808 


COMMISSION   ON   PROBATION. 


[Chap.  276. 


of  the  chief  justice  the  amount  thereof  shall  be  paid  to  the  chief  proba-  17 

tion  officer  by  Suffolk  county.  18 

negiecfof"^           Section  96.     Any  probation  officer  who  refuses  or  neglects  to  perform  1 

i89i"'356  §  8     ''^y  °^  ^'^®  duties  required  of  him  shall  forfeit  two  hundred  dollars  to  the  2 

1892;  276;  §  3.    usc  of  the  commonwealth.                i897, 266,  §  3.               r.  l.  217.  §  95.  3 


Duties  of  de- 
partment of 
public  welfare 
not  affected, 
1880,  129,  §  12. 


Section  97.     The  fourteen  preceding  sections  shall  not  authorize  a  1 

probation  officer  to  interfere  with  any  of  the  duties  required  of  the  depart-  2 

ment  of  public  welfare  under  the  law  relative  to  juvenile  offenders.  3 

1919,  350,  §  87. 


P.  S.  212,  §81. 
1886,  101,  §  4. 


1891.  .^56,  §  9. 
R.  L.  217,  §  97. 


COMMISSION   ON  PROBATION. 


Commission  on 
probation, 
deput.v  com- 
missioner, etc. 
1900,  449.  §  8, 
R.  L.  217,  §  90. 
1908,  465, 
5§1.6. 
1914,  191. 
4  Op.  A.  G.  467, 
576. 


Powers  and 
duties. 
1900.  449, 
§§  4-6. 
R.  L.  217, 
§§  86-88. 
1908,  465, 
§§2,6. 
1916,  241,  §  1. 
1919,  350, 
§§  82,  83,  87. 


Section  98.  There  shall  be  a  commission  on  probation  of  five  persons, 
appointed  by  the  chief  justice  of  the  superior  court,  one  or  more  of  whom 
may  be  justices  of  the  courts.  Said  chief  justice  shall  annually  appoint 
one  member  of  the  commission  to  serve  for  five  years  from  the  second 
Wednesday  in  July.  A  vacancy  in  the  commission  shall  be  filled  in  the 
same  manner  for  the  unexpired  term.  Any  member  of  the  commission 
may  be  removed  by  the  chief  justice.  The  commission  shall  appoint  a 
deputy  commissioner  as  its  executive  officer,  who  shall  hold  office  during 
its  pleasure.  He  shall  perform  such  duties  as  may  be  required  of  him  9 
by  the  commission  and  shall  receive  such  salary  as  it  shall,  subject  to  10 
the  appro\'al  of  the  governor  and  council,  determine.  The  commission  11 
shall  be  pro\'ided  with  suitable  office  accommodations,  in  the  Suffolk  12 
county  court  house  or  elsewhere,  and  may  employ  such  assistance  as  is  13 
needed  to  perform  its  work.  The  members  of  the  commission  shall  re-  14 
ceive  no  compensation  for  services  hereimder,  but  they  and  the  deputy  15 
commissioner  shall  be  allowed  the  necessary  expenses  incurred  in  the  16 
performance  of  their  official  duties.  The  commission  on  probation  may  17 
expend  for  the  purposes  for  which  it  is  established  such  sums  as  the  18 
general  court  may  appropriate.  19 


Section  99.  The  commission  shall  prescribe  the  form  of  all  records  1 
and  of  all  reports  from  probation  officers,  and  shall  make  rules  for  the  2 
registration  of  reports  and  for  the  exchange  of  information  between  3 
the  courts.  It  shall  provide  for  such  organization  and  co-operation  of  4 
the  probation  officers  in  the  several  courts  as  may  seem  advisable.  To  5 
promote  co-ordination  in  the  probation  work  of  the  courts,  the  commis-  6 
sion  may  call  a  conference  of  any  or  all  of  the  justices  of  the  district  7 
courts  and  the  Boston  juvenile  court,  or  a  conference  of  any  or  all  of  8 
the  probation  officers  and  assistant  probation  officers,  and  a  member  9 
of  the  commission  shall  preside.  With  the  approval  of  the  commission,  10 
the  commissioner  of  correction  or  the  department  of  public  welfare  may  11 
hold  a  conference  with  any  or  all  of  the  probation  officers  to  secure  their  12 
co-operation  in  keeping  trace  of  the  whereabouts  of  persons  who  are  at  13 
liberty  from  the  prisons  of  the  commonwealth.  The  traveling  expenses  14 
of  said  justices  or  officers  in  attending  any  conference  herein  named  15 
shall  be  paid  as  the  other  expenses  of  the  respective  courts  are  paid.  16 

repOTtliobe  Section  100.  E^-ery  probation  officer,  or  the  chief  or  senior  proba-  1 
probation''^  tiou  officer  of  a  court  having  more  than  one  probation  officer,  shall  trans-  2 
work,  etc.         mit  to  the  commissiou,  in  such  form  and  at  such  times  as  it  shall  requu-e,     3 


Ch.\P.   277.]  IXDICTMENTS   AXX)   PROCEEDINGS  BEFORE  TRL\.L. 


2809 


4  detailed  reports  regarding  the  work  of  probation  in  the  court;  and  under  isso.  129.  §  2. 

5  the  direction  of  the  commission  a  record  shall  be  kept  of  all  such  cases  fs9^i,356,\T' 

6  as  the  commission  may  require  for  the  information  of  the  justices  and  §§°3;4,''®' 

7  probation  officers.    Police  officials  shall  co-operate  with  the  commission  ?,■  gj  ^^^' 

8  and  the  probation  officers  in.  obtaining  and  reporting  information  con-  i'M2.  ise. 

9  cerning  persons  on  probation.     The  information  so  obtained  and  re-§§3.'6. 

10  corded  shall  be  accessible  at  all  times  to  the  justices  and  officers  of  the  1919',  350! 

11  courts,  to  the  police  commissioner  of  Boston,  and  to  all  chiefs  of  police  ^^^^■*3,  s.. 

12  and  city  marshals.    The  commissioner  of  correction  and  the  department 

13  of  public  welfare  shall  at  all  times  give  to  the  commission  and  the  pro- 

14  bation  officers  such  information  as  may  be  obtained  from  the  records 

15  concerning  prisoners  under  sentence  or  who  have  been  released. 

1  Section  101.     The  commission  shall  make  an  annual  report  to  the  Annual  report. 

2  general  court  of  the  probation  work  of  the  courts  for  the  year  ending  i^'l.'Iit.'Iss. 

3  on  September  thirtieth  preceding.    The  report  shall  include  such  infor-  ij^l/e.*^^' 

4  mation  as  the  commission  may  consider  useful,  with  its  suggestions  or 

5  recommendations. 

1  Section  102.     The  four  preceding  sections  shall  not  affect  the  au-  Not  to  affect 

2  thority  of  the  courts  to  require  the  keeping  by  their  probation  officers  tSodtyof  the 

3  of  probation  records  in  addition  to  those  necessary  to  conform  to  forms  igosfies,  1 5. 

4  of  records  and  reports  prescribed  by  the  commission  nor  the  authority  of 

5  the  courts  to  approve  expenses  and  disbursements  relating  to  the  pro- 

6  bation  system. 

1  Section  103.     Upon  the  appointment  or  removal  of  a  probation  offi-  Commission  to 

2  cer,  the  clerk  of  the  court  by  which  the  appointment  or  removal  is  made  of  apVointrnent 

3  shall  forthwith  give  notice  thereof  to  the  commission  on  probation.  probation'  °^ 

ISSO.  129,  I  2.  1891,  356,  §  5.  R.  L.  217,  §  91.  officers. 

P.  S.  212,  §  74.  1898,  511,  §  3.  1910,  485. 

REFERENCES. 

Disposition  of  firearms  taken  from  certain  unnaturalized  foreign  born  residents, 
Chap.  131,  §  17. 

Rendition  of  insane  persons,  Chap.  123,  §§  106-109. 


CHAPTER    277. 

INDICTMENTS  AND  PROCEEDINGS  BEFORE  TRIAL. 


Sect. 


GRAND    JUHT. 


1.  Grand  jurors. 

2.  Grand  jurors  in  Suffolk. 

3.  Jurors,  how  drawn,  etc. 

4.  Deficiency  in  grand  jurors. 

5.  Impanelling  and  oath. 

6.  Affirmation  in  lieu  of  oath. 

7.  Foreman. 

8.  Foreman,   duty   and    term    of    service. 

Temporary  foreman. 

9.  Administration  of  oaths  to  witnesses. 

List  of  witnesses. 


Sect. 

10.  Clerk  and  record. 

11.  Re-summoning  at  same  sitting. 

12.  Disclosure  of  indictment  found  forbid- 

den. 

13.  Disclosure  of  proceedings  forbidden. 

14.  Grand  juror  not  to  be  traverse  juror. 

INDICTMENTS   AND    COMPLAINTS. 

15.  Discharge  of  prisoner  not  indicted. 

16.  Conmiitment  if  not  indicted  by  reason 

of  insanity. 

17.  Contents  of  indictment. 


2810 


INDICTMENTS   AND   PROCEEDINGS   BEFORE  TRLiL. 


[CiLYP. 


Sect. 

18.  Circumstances  of  the  act. 

19.  Name  of  defendant. 

20.  Time  and  place. 

21.  Means. 

22.  Description  of  written  instrument. 

23.  Description  of  money. 

24.  Description  of  value  or  price. 

25.  Description  of  ownership. 

26.  Description  of  public  place. 

27.  Description  of  animal. 

28.  Description  of  judicial  proceedinj!S. 

29.  General  intent. 

30.  Intent  to  injure  or  defraud. 

31.  Alternative  descriptions. 

32.  Continuing  offences. 

33.  Unnecessary    and    immaterial    allega- 

tions. 

34.  Immaterial  defects. 

35.  Variance. 

36.  Scope  of  word  "oath". 

37.  Exceptions  and  provisos. 

38.  Allegations,  presumptions  and  proof  in 

prosecutions  imder  certain  sections  of 
chapter  94. 

39.  Meaning  of  certain  words  and  phrases. 

40.  Bill  of  particulars. 

41.  Indictment  for  larceny. 

42.  Indictment  for  receiving  stolen  prop- 

erty. 

43.  Indictment  for  perjury. 

44.  Indictment  for  subornation  of  perjury. 

45.  Indictment  for  unnatural  and  lascivious 

acts. 

46.  Different  cotmts  for  different  offences 

in  same  indictment. 


PEOCEEDING.S    nPON    ARRAIGNMENT    IN    CAP- 
ITAL  C.1SES. 

47.  Arraignment. 

48.  Assignment  of  counsel  in  capital  case 

in  district  court. 

49.  Compensation  to  counsel. 

50.  Indictments  in  Dukes  and  Nantucket 

counties. 

51.  Change  of  venue. 

52.  Transmission  of  papers. 

53.  District  attorney   to   conduct   ease   in 

new  venue. 


hECT. 

54.  Custody  of  prisoner. 

55.  Compensation  of  counsel  of  prisoner. 

56.  Expenses  of  counsel  of  prisoner. 

VENUE    OF   SPECIFIC    CRIMES. 

57.  Crime  near  boundarj'  line. 

58.  Venue  of  larceny. 

59.  Venue    of    indictment    for    obtaining 

money  by  false  pretences. 

60.  Venue  of  indictment  if  injury  is  in  one 

county  and  death  in  another. 

61.  Venue   of   indictment   for   crime   com- 

mitted at  sea,  etc. 

62.  Venue  of  indictment  if  injury  is  in  this 

commonwealth  and  death  outside. 

LIMIT.\TION    OF    CRIMINAL    PROSECUTIONS. 

63.  Limitation  of  criminal  prosecutions. 

64.  Limitation  of  new  indictment  against 

corporation  after  abatement  of  former 
one,  etc. 

ARREST,     ARRAIGNMENT     AND      OTHER      PRO- 
CEEDINGS. 

65.  Prisoner  to  be  seri'ed  with  copy  of  in- 

dictment, etc. 

66.  Prisoner   to    have   list   of    jurors   and 

process  for  witnesses. 

67.  Other  prisoners  entitled  to  copy  of  in- 

dictment. 

68.  Prosecuting    officers    may    issue    sub- 

poenas. 

69.  Witnesses  for  commonwealth  to  attend 

without  fees. 

70.  Witness  to  rgcognize,  when. 

71.  Arraignment.    Standing  mute. 

72.  Limit  of  time  of  trial. 

73.  Compensation  of  persons  discharged  in 

certain  cases. 

74.  Verification  of  plea  in  abatement. 

75.  Form  of  plea  of  former  acquittal,  etc. 

76.  Commission  to  examine  witnesses. 

77.  Commission,    how   executed.      Deposi- 

tion, how  used. 

78.  Civil  remedies  not  barred  by  criminal 

proceedings. 

79.  Effect  of  annexed  forms. 


Grand  jurors. 
C.  L.  86.  §  2. 
1694-5.  24.  §  1. 
1784,  4,  §§  1,  2. 
1807,  140,  §  4. 
1832.  130,  §  6. 
R.  S.  136,  §  1. 
1840,  74. 
G.  S.  171,  I  1. 
1860,  143. 
P.  S.  213.  §  1. 
1897,  490,  §  7. 
R.  L.  218,  §  1. 
2  Gush.  149. 
119  Mass.  326. 
171  Mass.  459. 


GR.AND   JITRY. 

Section  1.     The  clerk  of  the  courts  for  each  county,  except  Suffolk,  1 

shall,  not  less  than  seven  nor  more  than  thirty  days  before  the  com-  2 

mencement  of  the  first  sitting  of  the  superior  court  for  criminal  business  3 

in  each  j'ear,  issue  writs  of  venire  facias  for  twenty-three  grand  jurors  to  4 

be  returned  to  that  court,  who  shall  serve  until  the  first  regular  sitting  5 

in  the  year  next  after  they  have  been  impanelled  and  until  another  6 

grand  jury  has  been  impanelled  in  their  stead.    In  counties  where  sit-  7 

tings  of  the  court  are  established  for  the  transaction  of  criminal  busi-  8 

ness,  they  shall  be  required  to  attend  only  at  such  sittings.  9 


ClLVP.   277.]  INDICTMENTS   AND  PROCEEDINGS  BEFORE  TRL\.L.  2811 

1  Section  2.     The  clerk  of  the  superior  court  for  criminal  business  in  Grand  jurors 

2  Suffolk  county  shall,  not  less  than  seven  nor  more  than  fourteen  days  isw"!^.  §3. 

3  before  each  sitting  commencing  on  the  first  IMondays  of  January  and  fsoo,  III'.  ^  ^' 

4  July,  issue  writs  of  venire  facias  for  twenty-three  grand  jurors  to  serve  j^-  ^  ^2^3  ^§^2 

5  in  said  court,  twenty-two  of  whom  shall  be  drawn  and  returned  from 

6  Boston,  and  one  from  Chelsea,  Revere  or  \Yinthrop,  who  shall  serve  for 

7  each  sitting  thereof  for  six  months  and  until  another  grand  jury  has 

8  been  impanelled  in  their  stead. 

1  Section  3.     Grand  jurors  shall  be  drawn,  summoned  and  returned  in  Jurors,  how 

2  the  same  manner  as  traverse  jurors;    and,  if  drawn  at  the  same  time  R.^s/'ilurs  3. 

3  with  traverse  jurors,  the  number  of  persons  required  whose  names  are  p.' |;  2 13, '§^3^' 

4  first  drawn  shall  be  returned  as  grand  jurors,  and  those  whose  names  ^-  ^-  ^'*'  ^  ^• 

5  are  afterward  drawn  shall  be  returned  as  traverse  jurors. 

1  Section  4.     If  there  is  a  deficiency  of  grand  jurors,  writs  of  venire  Deficiency  in 

2  facias  may  be  issued  to  the  constables  of  such  towns  as  the  court  orders  1784, 7,"§T' 

3  to  return  forthwith  the  further  number  of  grand  jurors  required.  ^°l[  ile,  I  4. 

G.  S.  171.  §  4.  p.  S.  213,  §  4.  R.  L.  218,  I  4.  119  Mass.  326. 

1  Section  5.     The  clerk  of  the  court  shall  prepare  an  alphabetical  list  impanelling 

2  of  the  names  of  all  persons  returned  as  grand  jurors,  and,  when  they  c.  l.  i67,  §  2. 

3  are  to  be  impanelled,  the  first  two  persons  named  thereon  shall  be  first  1784. 4',  §  i. 

4  called,  and  the  following  oath  shall  be  administered  to  them:  §§°i6\*4' 

R.  S.'l36,  §  5. 

You,  as  grand  jurors  of  this  inquest  for  the  body  of  this  county  of  ,  p- 1-  ^ ''3 '  5^5^' 

do  solemnly  swear  that  you  -nill  diligently  inquire,  and  true  presentment  make,  r  l.  218,  §  s. 
of  all  such  matters  and  things  as  shall  be  given  you  in  charge;   the  common-  JI7  J^j^  111' 
wealth's  counsel,  your  fellows'  and  your  own,  you  shall  keep  secret;   you  shall  231  Mass. 5841 
present  no  man  for  env>',  hatred  or  malice,  neither  shall  you  leave  any  man  un- 
presented  for  love,  fear,  favor,  affection  or  hope  of  reward ;  but  you  shall  present 
things  truly,  as  they  come  to  your  knowledge,  according  to  the  best  of  your  under- 
standing; so  help  you  God. 

5  The  other  jurors  shall  then  be  called  in  such  divisions  as  the  court  con- 

6  siders  proper,  and  the  following  oath  shall  be  administered  to  them: 

The  same  oath  which  yoTir  fellows  have  taken  on  their  part,  you  and  each  of 
you  on  your  behalf  shall  well  and  truly  observe  and  keep;  so  help  you  God. 

1  Section  6.     If  a  person  who  is  returned  as  a  grand  juror  is  con-  Affirmation 

2  scientiously  scrupulous  of  taking  the  oath  prescribed,  he  may  affirm.         oath."  ° 

1807,  140,  §  14.  G.  S.  171,  §  6.  R.  L.  218,  §  6. 

R.  S.  130,  §  6.  P.  S.  213,  §  6.  168  U.  S.  532. 

1  Section  7.     After  the  grand  jurors  have  been  impanelled  and  have  Foreman. 

2  received  their  charge  from  the  court,  they  shall  retire  with  the  officer  r.  s!  i3k,' §  7. ' 

3  appointed  to  attend  them,  and  shall  forthwith,  by  ballot,  elect  one  of  p.i^iii.'ii.' 

4  their  number  as  foreman  and  give  notice  thereof  to  the  court,  and  the  ne^jusil/' 

5  clerk  shall  record  the  same. 

1  Section  8.     The  foreman  so  elected  shall  be  foreman  for  the  whole  Foreman,  duty 

2  period  the  grand  jurors  are  required  to  serve,  but  in  his  absence  another  te„i'ce'"° 

3  foreman  shall  be  elected  in  the  same  manner,  who  shall  perform  the  /^r^^an""'^ 

4  duties  during  such  absence,  and,  in  case  of  the  death  of  the  foreman,  jf^l'Jsg;!! 

5  for  the  residue  of  their  period  of  service. 

G.  S.  171.  §  8.  P.  S.  213,  §  8.  R.  L.  218,  §  8. 


2812 


INDICTMENTS   AND  PROCEEDINGS  BEFORE  TRIAL.         [ClL^P.   277. 


Administration 
of  oaths  to 
witnesses. 
List  of  wit- 
nesses. 

1807,  140,  §  10. 
R.  S.  1.3li,  §  9. 
G.  S.  171,  §  9. 
P.  S.  213,  §  9. 


Section  9.  The  foreman  of  the  grand  jury  or  the  prosecuting  ofBcer 
before  them  may  administer  oaths  and  affirmations  to  witnesses  who 
appear  to  testify  before  the  jury,  and  the  foreman  shall  under  his  hand 
return  to  the  court  a  list  of  all  witnesses  sworn  before  the  grand  jury 
during  the  sitting,  which  shall  be  filed  of  record  by  the  clerk. 

R.  L.  218,  §  9.  4  Gray,  1.  163  Mass.  453.  207  Mass.  259. 


Clerk  and 

record. 

R.  S.  136,  §  10. 

G.  S.  171,  §  10. 

P.  S.  213,  §  10. 

R.  L.  218,  §  10. 


Re-summoning 
at  same  sitting. 
R.  S.  136,  §  11. 
G.  S.  171,  §  11. 
P.  S.  213,  §  11. 


Section  10.     The  grand  jury  may  appoint  one  of  their  number  to  1 

be  their  clerk,  and  he  shall  keep  a  record  of  their  proceedings  and,  if  2 

the  jury  so  direct,  shall  deliver  it  to  the  attorney  general  or  district  3 

attorney.  4 

Section  11.     If  the  grand  jury  are  dismissed  before  the  court  is  1 

adjourned  without  day,  they  may  be  summoned  to  attend  again  in  the  2 

same  sitting,  at  such  time  as  the  court  orders.  R.  l.  21s.  §  11.  3 


Disclosure  of 
indictment 
found  for- 
bidden. 

R.  S.  136,  §  12. 
G.  S.  171,  §  12. 
P.  S.  213,  §  12. 


Section  12.    No  grand  juror  or  officer  of  the  court  shall  disclose  1 

the  fact  that  an  indictment  has  been  found  against  any  person  not  in  2 

custody  or  under  recognizance,  otherwise  than  by  issuing  or  executing  3 

process  on  the  indictment.  R-  l.  218,  §  12.  4 


Disclosure  of 

proceedings 

forbidden. 

R.  S.  136,  I  13. 

G.  S.  171,  I  13. 

P.  S.  213,  I  13. 

R.  L.  21s,  §  13. 


Section  13.    No  grand  juror  shall  be  allowed  to  state  or  testify  in  1 

any  court  in  what  manner  he  or  any  other  member  of  the  jury  voted  on  2 

any  question  before  the  grand  jury,  or  what  opinion  was  expressed  by  3 

any  juror  relative  thereto.    In  charging  the  grand  jury,  the  court  shall  4 

remind  them  of  the  provisions  of  this  and  the  preceding  sections.  5 


Grand  juror 
not  to  be 
traverse  juror. 
R.  S.  137,  §  2. 


Section  14.     No  member  of  the  grand  jury  which  has  found  an  indict-     1 
ment  shall  serve  upon  the  jury  for  the  trial  thereof.  2 


G.  S.  172,  §  2. 


p.  S.  214,  §  4. 


R.  L.  218.  §  14. 


indictments  and  complaints. 


Section  15.     The  grand  jury  shall,  during  its  session,  make  daily  re- 
turn to  the  court  of  all  cases  wherein  it  has  finally  determined  not  to 


Discharge  of 
prisoner  not 
indicted. 

R.  s!  136,  §  14.  present  an  indictment  against  an  accused  person  held  in  custody  pend- 
p.s.'2i3.'§  14.'  ing  its  action,  and  such  person  shall  thereupon  forthwith  be  discharged 
?92o|.ii3.'  ^  ^^'  by  order  of  the  court  unless  he  is  held  on  other  process. 


Whoever  is  held 
in  custody  on  a  charge  of  crime  shall  be  discharged  if  he  is  not  indicted 
before  the  end  of  the  second  sitting  of  the  court  at  which  he  is  held  to 
answer,  unless  the  court  finds  that  the  witnesses  for  the  prosecution  have  8 
been  enticed  or  kept  away,  or  are  detained  and  prevented  from  attend-  9 
ing  the  court  by  illness  or  accident,  and  except  as  provided  in  the  fol-  10 
lowing  section.  11 


Commitment 
if  not  in- 
dicted by 
reason  of 
insanity. 
1862,  223,  §  17. 
p.  S.  213,  §  15. 
1883,  148,  §  2. 
1889,  90,  §  1. 
1895,  390,  I  4. 
R.  L.  218,  §  16. 
1909,  504,  §  98. 


Section  16.     If  the  grand  jury  does  not  indict  a  person  who  is  held  1 

in  custody  on  a  charge  of  crime  by  reason  of  his  insanity,  they  shall  so  2 

certify  to  the  court,  which,  if  satisfied  that  he  is  insane,  may  order  him  3 

committed  to  a  state  hospital,  except  the  Bridgewater  state  hospital,  4 

under  such  limitations  as  it  may  order;  or,  if  the  court  finds  that  he  has  5 

been  a  criminal  or  is  of  vicious  tendency,  it  may  order  him  committed  6 

to  the  Bridgewater  state  hospital,  and  if  he  is  charged  with  felony  his  7 

expenses  in  any  such  hospital  or  in  any  state  charitable  institution  to  8 

which  he  may  be  transferred  shall  be  paid  by  the  commonwealth.  9 


Ch.\P.   277.]  INDICTMENTS  .\ND   PROCEEDINGS  BEFORE  TRIAL.  2813 

1  Section  17.     An  indictment  shall  contain —  Contents  of 

2  First,  The  caption,  which  shall  consist  of  the  name  of  the  common-  Wo 


ndictment. 
409. 
6,  7,  12. 


3  wealth,  county  and  court  in  which  the  indictment  is  presented,  and  the  f^  l.  2i8T§  n. 

4  time  of  the  sitting  of  the  coiu-t.     One  caption  shall  be  sufficient,  although  \ll  Hm-  \f;^ 

5  the  indictment  contains  more  than  one  count.  213  Mass.  135. 

ri  1      «       1    •  •         1  •      ■  1-1  •  ^^®  Mass.  308. 

6  becond,  A  plam  and  concise  description  of  the  act  which  constitutes 

7  the  crime,  or  the  appropriate  legal  term  descriptive  of  such  act,  without  a 

8  detailed  description  thereof.    The  words  used  in  a  statute  to  define  a 

9  crime,  or  other  words  conveying  the  same  meaning,  may  be  used. 

1  Section  IS.     The  circumstances  of  the  act  may  be  stated  according  Circumstances 

2  to  their  legal  effect,  without  a  full  description  thereof. 

1899.  409.  §  13.  R.  L,  218,  §  18.  1S9  Mass.  12. 

1  Section  19.     If  the  name  of  an  accused  person  is  unknown  to  the  Name  of  de- 

2  grand  jury,  he  may  be  described  by  a  fictitious  name  or  by  any  other  is99?4d9,  §  s. 

3  practicable  description,  with  an  allegation  that  his  real  name  is  unknown.  isQ^iil'si'  iV^" 

4  An  indictment  of  the  defendant  by  a  fictitious  or  erroneous  name  shall  not 

5  be  ground  for  abatement;  but  if  at  any  subsequent  stage  of  the  proceed- 

6  ings  his  true  name  is  discovered,  it  shall  be  entered  on  the  record  and  may 

7  be  used  in  the  subsequent  proceedings,  with  a  reference  to  the  fact  that 

8  he  was  indicted  by  the  name  or  description  mentioned  in  the  indictment. 

1  Section  20.     The  time  and  place  of  the  commission  of  the  crime  need  V"^^  '"'<• 

...  .  place. 

2  not  be  alleged  unless  it  is  an  essential  element  thereof.    The  allegation  jsga,  409, 1 10. 

3  of  time  in  the  caption  shall,  unless  otherwise  stated,  be  considered  as  an  isg  .Mass!  12 

4  allegation  that  the  act  was  committed  before  the  finding  of  the  indict-  212  Mass!  253! 

5  ment,  after  it  became  a  crime,  and  within  the  period  of  limitations.    The  "'^^  ^'"^^^  ^^*' 

6  name  of  the  county  and  court  in  the  caption  shall,  unless  otherwise  stated, 

7  be  considered  as  an  allegation  that  the  act  was  committed  within  the 

8  territorial  jurisdiction  of  the  court.     All  allegations  of  the  indictment 

9  shall,  unless  otherwise  stated,  be  considered  to  refer  to  the  same  time 
10  and  place. 

1  Section  21.     The  means  by  which  a  crime  is  committed  need  not  be  Means. 

2  alleged  in  the  indictment  unless  an  essential  element  of  the  crime.  r.  l.  218,  §  21! 

189  Mass.  12.  207  Mass.  259.  235  Mass.  449. 

1  Section  22.     If  an  allegation  relative  to  a  wTitten  instrument  con-  Description  of 

2  sisting  wholly  or  in  part  of  writing,  print  or  figures  is  necessary,  it  may  ment^°  'nstr"- 

3  describe  such  instrument  by  any  name  or  designation  by  which  it  is  ^^l[  l%\  1 12. 

4  usually  known,  or  by  the  purport  thereof,  without  setting  out  a  copy  or  231  Mass' 449 

5  facsimile  of  the  whole  or  of  any  part  thereof;   and  no  variance  between 

6  such  recital  or  description  and  the  instrument  produced  at  the  trial  shall 

7  be  material,  if  the  identity  of  the  instrument  is  evident  and  the  purport 

8  thereof  is  so  described  as  not  to  prejudice  the  defendant. 

1  Section  23.     If  an  allegation  relative  to  any  bullion,  money,  notes.  Description 

2  bank  notes,  checks,  drafts,  bills  of  exchange,  obligations  or  other  securities  i834°'isti',  §  2 

3  for  money  of  any  country,  state,  county,  city,  town,  bank,  corporation,  fgjl;  215;  ^  ^^' 

4  partnership  or  person  is  necessary,  it  may  describe  it  as  money,  without  J?'*|'  \l\- 1  fj 

5  specifying  any  particulars  thereof;   and  such  descriptive  allegation  shall  p^"?'2mS44 


2814 


r^DICTME^TS  and  proceedixgs  before  trial.       [Cil^p.  277. 


R ^L  111'  1 23  t>6  sustained  by  proof  of  any  amount  of  bullion,  money,  notes  or  other  6 

100  Mass.  1  securities  for  money  as  aforesaid,  although  the  particular  nature  thereof  7 

118  Mass.  443.  ,      i,             i                       i"                                   ^                    o                 i 

173  Mass.  541.  shall  not  be  proved.  8 


Description  of 
value  or  price. 
1899.  409.  §  17, 
R.  L.  21S,  §  24. 


Section  24.     The  value  or  price  of  property  need  not  be  stated,  unless  1 

an  essential  element  of  the  crime.    If  the  nature,  degree  or  punishment  2 

of  a  crime  depends  upon  the  fact  that  the  property  exceeds  or  does  not  3 

exceed  a  certain  value,  it  may  be  described,  as  the  case  may  be,  of  more  4 

than  that  value,  or  of  not  more  than  that  value.  5 


^erSif"""^        Section  25.     If  an  indictment  for  a  crime  involving  the  commission  1 

1899. 409. 1 18.  or  attempted  commission  of  an  injury  to  property  describes  the  property  2 

■with  sufficient  certainty  in  other  respects  to  identify  the  act,  it  need  not  3 

allege  the  name  of  the  owner.  4 


H.  L.  218,  I  25. 


Section  26. 


If  one  element  of  the  criminality  of  an  act  is  its  com-    1 

2 
3 
"in  a  public  place".  4 


Description  of 
public  place. 

1899, 409, 1 19.  mission  in  a  public  place,  and  if  such  place  is  not  more  particularly  defined 
'in  the  statute,  the  act  may  be  alleged  generally  to  have  been  committed 


Description 
of  animal. 


Section  27.     In  an  indictment  for  the  larceny  of  an  animal,  or  for  1 

R  ^L  218  1 2?'  ^^y  other  crime  in  respect  thereof,  it  may  be  described  by  the  name  by  2 

which  it  is  commonly  known,  without  stating  its  age  or  sex  or  whether  3 

it  is  alive  or  dead.  4 


'^cUcIa?''??-'''        Section  28.     If  it  is  necessary  to  set  fortli  the  judicial  proceedings  in 

i899'°409  5  21  ^^^  ^^^^  ^'^^^  °''  ^o^merly  pending  in  any  court,  ci\-il  or  military,  or  any 

R.  l!  218!  1 28!  proceedings  before  a  justice  of  the  peace  or  any  other  magistrate,  only 

the  substance  of  said  proceedings  or  such  part  thereof  as  shall  constitute 

in  %vhole  or  in  part  the  crime  charged  need  be  alleged. 


?8™9"409?t9'"       Section  29.     An  allegation  that  the  defendant  committed  the  act    1 

is^^ials'  n^'  charged  shall  be  a  sufficient  allegation  that  he  was  criminally  responsible    2 

therefor.  3 


Section  30.     If  an  intent  to  injure  or  defraud  is  an  essential  element 


Intent  to  in- 
jure or  de- 

R*s^i27  §  14  °^  ^  crime,  an  intent  to  injure  or  defraud  may  be  alleged  generally,  with- 
T'i'iof'iii'  ^^^  naming  the  person,  corporation  or  government  intended  to  be  injured 
1899, 409,  §  23  or  dcfraudcd.  Proof  of  an  intent  to  injure  or  defraud  any  person  or  body 
12  Met.  446.      Corporate  shall  be  competent  to  support  the  allegation. 

100  Mass.  12.  231  Mass,  449. 


descrip^tVOTs.  Section  31.     Different  means  or  different  intents  by  or  with  which     1 

R^^L.  lis!  1 3i!  ''■  crime  may  be  committed  maj'  be  alleged  in  the  same  count  in  the    2 

alternative.  3 


Continuing 
offences. 
1899,409,  §  11. 
R.  L.  218.  §  32, 
212  Mass.  253. 


Section  32.  An  allegation  that  a  crime  was  committed  or  that  cer- 
tain acts  were  done  during  a  certain  period  of  time  next  before  the  finding 
of  the  indictment  shall  be  a  sufficient  allegation  that  the  crime  alleged 
was  committed  or  that  the  acts  alleged  were  done  on  divers  days  and 
times  within  that  period. 


Unnecessarj' 
and  immaterial 
allegations. 
R.  S.  137,  §  14. 


Section  33.     Presumptions  and  conclusions  of  law,  matters  of  which     1 
judicial  notice  is  taken  and  allegations  not  required  to  be  proved  need    2 


Chap.  277.]        indictments  and  proceedings  before  trul.  2815 

3  not  be  alleged.    An  indictment   shall  not  be  considered  defective  or  isss,  isi,  §  4. 

4  insufficient  because  it  omits  to  allege  that  the  crime  was  committed,  or  §''1*5.'  ''^'  ^^' 

5  the  act  was  done  "traitorously",  "feloniously",  "burglariously",  "wil-  lifi;!!'^^' 

6  fully",  "maliciously",  "negligently",  "unlawfully"  or  otherwise  sim- f^j^-^i®! \|^_ 

7  ilarly  to  describe  the  crime,  unless  such  description  is  an  element  of  the  l}j-  ,„,  ^  ,„ 

--,  .  1  11  .  .  nil*  18b0,  191,  §  10. 

8  crime  charged,  or  because  it  omits  to  allege  that  the  crime  was  com-  P-  s.  210,  §  2-. 

9  mitted  or  done  with  "force  and  arms",  or  "against  the  peace",  or  against  isss,  144.' 

10  the  form  of  the  statute  or  statutes,  or  against  a  by-law,  ordinance,  order,  isgg]  409,  §§  3, 

11  rule  or  regulation  of  any  public  authority,  or  because  it  omits  to  state  or  fj^f,  21s,  §33. 

12  misstates  the  title,  occupation,  estate  or  degree  of  the  defendant  or  of  \ll  ^i^l  ^^^ 

13  any  other  person  named  in  the  indictment,  or  of  the  name  of  the  county,  i^^  ^^^-  225. 

14  city,  town  or  place  of  his  residence,  unless  such  omission  or  misstatement 

15  tends  to  the  prejudice  of  the  defendant,  or  by  reason  of  describing  a  fine  or 

16  forfeiture  as  enuring  to  the  use  of  the  commonwealth  instead  of  to  the 

17  use  of  the  county,  city  or  town,  or  by  reason  of  any  misstatement  as  to 

18  the  appropriation  of  any  fine  or  forfeiture,  or  by  reason  of  its  failure  to 

19  allege  or  recite  a  special  statute  or  a  by-law  or  ordinance  of  a  city  or 

20  town  or  order  of  the  mayor  and  aldermen  or  selectmen  or  rules  or  regu- 

21  lations  of  any  public  board  of  officers. 

1  Section  34.     An  indictment  shall  not  be  quashed  or  be  considered  immaterial 

2  defective  or  insufficient  if  it  is  sufficient  to  enable  the  defendant  to  under-  isss,  409.  §  5. 

3  stand  the  charge  and  to  prepare  his  defence;   nor  shall  it  be  considered  212  Mass'.  253." 

4  defective  or  insufficient  for  lack  of  any  description  or  information  which  231  Mass.  598. 

5  might  be  obtained  by  requiring  a  bill  of  particulars  under  section  forty.  235  MaS.'  449.' 

1  Section  35.     A  defendant  shall  not  be  acquitted  on  the  ground  of  J'j'g'^^^j^o  5 1 

2  variance  between  the  allegations  and  proof  if  the  essential  elements  of  p.  s.'2i4,'§26. 

3  the  crime  are  correctly  stated,  unless  he  is  thereby  prejudiced  in  'his  r.  l!  218!  §  35. 

4  defence.    He  shall  not  be  acquitted  by  reason  of  an  immaterial  misnomer  gs  Mass!  9. 

5  of  a  third  party,  an  immaterial  mistake  in  the  description  of  property  or  227. '^'''^^'  '^^' 

6  the  ownership  thereof,  failure  to  prove  unnecessary  allegations  in  the  JIlMaS:!?!: 

7  description  of  the  crime  or  any  other  immaterial  mistake  in  the  indictment.  J^s  Mass.  393. 

211  Mass.  578.  235  Mass.  449. 

1  Section  36.     The  word  "oath"  as  used  in  an  indictment  shall  include  scope  of  word 

2  an  "affirmation".  is99, 409. § 22.  r. l. 218,  §36.  "oath". 

1  Section  37.     An  excuse,  exception  or  proviso  not  stated  in  the  enact-  Exceptions 

2  ing  clause  of  a  statute  creating  a  crime  or  stated  only  by  reference  to  i899f40™|  26. 

3  other  provisions  of  the  statute  need  not  be  negatived  in  the  indictment  fisiliss.  loi.' 

4  unless  necessary  for  a  complete  definition  of  the  crime.    If  any  statute 

5  shall  prescribe  a  form  of  indictment  in  which  an  excuse,  exception  or 

6  proviso  is  not  negatived,  it  shall  be  taken  that  it  is  not  necessary  to  a 

7  complete  definition  of  the  crime  that  they  should  be  negatived.     If  a 

8  statute  creating  a  crime  permits  an  act,  therein  declared  to  be  criminal,  to 

9  be  performed  without  criminality  under  stated  conditions,  such  condi- 
10  tions  need  not  be  negatived. 

1  Section  38.     In  a  prosecution  under  any  provision  of  sections  one  Allegations, 

2  hundred  and  ninety-seven  to  two  hundred  and  thirteen,  inclusive,  of  ^nf  p^'inS^ 

3  chapter  ninety-four,  for  unlawfully  prescribing,  selling,  furnishing,  giving  {;n'de™'rtain 

4  away  or  delivering  a  narcotic  drug  in  violation  of  any  provision  of  said  ^i,'''"™,"] 

5  sections,  it  shall  be  sufficient  to  allege  that  the  defendant  did  unlawfully  i9i7. 275, 

'^  §§  IG,  17. 


2816 


rNTDICTMENTS  AKD  PKOCEEDIXGS  BEFORE  TEUL.         [ChAP.  277. 


prescribe,  sell,  furnish,  give  away  or  deliver,  as  the  case  may  be,  the  6 

alleged  narcotic  drug,  without  any  further  allegations,  and  without  nam-  7 

ing  the  person  prescribed  for,  or  the  amount  or  quantity  of  the  drug,  or  8 

the  person  to  whom  such  sale,  furnishing,  giving  away  or  delivery  was  9 

made;   but  the  defendant  shall  be  entitled  to  a  bill  of  particulars  under  10 

section  forty.    In  such  a  prosecution,  a  defendant  reljdng  upon  a  prescrip-  1 1 

lion,  written  order,  registration,  appointment  or  authority  as  a  defence  12 

or  justification  shall  prove  the  same,  and  until  he  has  proved  it  the  pre-  13 

sumption  shall  be  that  he  is  not  so  justified  or  authorized.  14 


Meaning  of 
certain  words 
and  phrases. 
1899,  409,  §  12. 
R.  L.  21S,  §  3S. 
184  Mass.  320. 
187  Mass.  5S1. 
202  Mass.  121, 
379. 

222  Mass.  504. 
224  Mass.  42. 

231  Mass.  449. 

232  Mass.  5S8. 


230  Mass.  567. 


Section  .39.  The  words  used  in  an  indictment  may,  except  as  other-  1 
wise  provided  in  this  section,  be  construed  according  to  their  usual  2 
acceptation  in  common  language;  but  if  certain  words  and  phrases  are  3 
defined  by  law,  they  shall  be  used  according  to  their  legal  meaning.  4 

The  following  words,  when  used  in  an  indictment,  shall  be  sufficient  to  5 
convey  the  meaning  herein  attached  to  them:  6 

Adultery.  —  Sexual  intercourse  by  a  married  man  with  a  woman  not  7 
his  wife,  by  an  unmarried  man  with  a  married  woman,  by  a  married  8 
woman  with  a  man  not  her  husband.  9 

Affray.  ■ —  Fighting  together  of  two  or  more  persons  in  a  public  place  10 
to  the  terror  of  the  persons  lawfully  tliere.  1 1 

False  Pretences.  ■ —  False  representations  made  by  word  or  act  of  such  12 
a  character,  or  made  under  such  circumstances  and  in  such  a  way,  with  13 
the  intention  of  influencing  the  action  of  another,  as  to  be  punishable.        14 

Forgery.  —  The  false  making,  altering,  forging  or  counterfeiting  of  any  15 
instrument  described  in  section  one  of  chapter  two  hundred  and  sixty-  16 
seven,  or  any  instrument  which,  if  genuine,  would  be  a  foundation  for 
or  release  of  liability  of  the  apparent  maker. 

Fornication.  —  Sexual  intercourse  between  a  man  and  an  unmarried 
woman. 

Murder.  —  The  killing  of  a  human  being,  with  malice  aforethought. 

Ra^e.  —  The  unlawful  forcible  carnal  knowledge  by  a  man  of  a  woman  22 
against  her  will  or  without  her  consent;  or  the  carnal  knowledge  by  a  23 
man  of  a  female  child  under  the  statutory  age  of  consent.  24 

Robbery.  —  The  taking  and  carrying  away  of  personal  property  of  25 
another  from  his  person  and  against  his  ■will,  by  force  and  violence,  or  by  26 
assault  and  putting  in  fear,  with  intent  to  steal.  27 

Stealing.     Larceny.  —  The  criminal   taking,  obtaining  or  converting  28 
of  personal  property,  with  intent  to  defraud  or  deprive  the  owner  per-  29 
manently  of  the  use  of  it;  including  all  forms  of  larceny,  criminal  embez- 
zlement and  obtaining  by  criminal  false  pretences. 


17 
18 
19 
20 
21 


30 
31 


Bill  of  par- 
ticulars. 
1SS7,  436,  §  2. 
1S99.  409, 
§S  10,  13.  14, 
16.  24,  27. 
E.  L.  218.  §  39. 
184  Mass.  320. 
187  Mass.  5S1. 
189  Mass.  12. 
195  Mass.  100. 
199  Mass.  583. 
202  Mass.  379. 
207  Mass.  259, 
572. 

213  Mass.  135. 
218  Mass.  507. 
227  Mass.  57. 
231  Mass.  449. 


Section  40.  The  court  may,  upon  arraignment  of  the  defendant,  or  1 
at  any  later  stage  of  the  proceedings,  order  the  prosecution  to  file  a  state-  2 
ment  of  such  particulars  as  may  be  necessary  to  give  the  defendant  and  3 
the  court  reasonable  knowledge  of  the  nature  and  grounds  of  the  crime  4 
charged,  and  if  it  has  final  jurisdiction  of  the  crime,  shall  so  order  at  the  5 
request  of  the  defendant  if  the  charge  would  not  be  otherwise  fully,  6 
plainly,  substantially  and  formally  set  out.  If  there  is  a  material  variance  7 
between  the  e\idence  and  the  bill  of  particulars,  the  court  may  order  the  8 
bill  of  particulars  to  be  amended,  and  may  postpone  the  trial,  Mhich  may  9 
be  before  the  same  or  another  jury,  as  the  court  may  order.  If,  to  prepare  10 
for  his  defence,  the  defendant  desires  information  as  to  the  time  and  place  11 


Chap.  277.]        indictments  and  proceedings  before  trial.  2817 

12  of  the  alleged  crime  or  the  means  by  which  it  is  alleged  to  have  been  com- 

13  mitted,  or  more  specific  information  as  to  the  exact  nature  of  the  property 

14  described  as  money,  or,  if  indicted  for  larceny,  as  to  the  crime  which  he 

15  is  alleged  to  have  committed,  he  may  apply  for  a  bill  of  particulars  as 

16  aforesaid. 

1  Section  41.     In  an  indictment  for  criminal  dealing  with  personal  , indictment  for 

2  propert-s'  with  intent  to  steal,  an  allegation  that  the  defendant  stole  said  is99, 469,  §  24. 

3  property  shall  be  sufficient;  and  such  indictment  may  be  supported  by  is3  Mass',  ifii.' 

4  proof  that  the  defendant  committed  larceny  of  the  property,  or  embezzled  222  Mass!  504! 

5  it,  or  obtained  it  by  false  pretences. 

1  Section  42.     In  prosecutions  for  brndng,  receiving  or  aiding  in  the  indictment  for 

2  concealment  of  stolen  property  known  to  have  been  stolen,  it  shall  not  property.  ^'°  ^° 

3  be  necessary  to  allege  or  pro^•e  that  the  person  who  stole  the  property  has  J^'g'  i^l,'  1 24.' 

4  been  convicted. 

G.  S.  161.  I  45.  P.  S.  203,  §  50.  R.  L.  218,  §  41.  3  Mass.  126. 

1  Section  43.     In  an  indictment  for  perjury  alleged  to  have  been  com-  indictment 

2  mitted  in  a  criminal  case  an  allegation  of  the  substance  of  the  crime  shall  iseo.^^sefi  i. 

3  be  sufficient;  if  alleged  to  have  been  committed  in  a  civil  case,  an  allega-  r.  l.1i8,V42. 

4  tion  of  the  nature  of  the  controversy  in  general  terms  shall  be  sufficient,  l^ofity^u'^' 

5  In  both  cases,  the  court  or  magistrate  before  whom  the  oath  or  affirmation  ?„4'l^"'  *^ii« 

„  1      11  I  11  I     1  !■     1  1-  •  1  •    1  105  Mass.  582. 

6  was  taken  shall  be  alleged,  but  no  part  ot  the  proceeding  in  which,  or  the  io7  Mass.  227. 

7  commission  or  authority  of  the  court  or  person  before  whom,  the  perjury  122  Mass!  449! 

8  was  committed  need  be  alleged.  164  Mass.  398.  lee  Mass.  174.  ^^      "^'^  *^^' 

1  Section  44.     If,  in  an  indictment  for  subornation  of  perjury  or  for  indictment  for 

2  attempting  to  incite  or  procure  another  person  to  commit  perjury,  it  is  perj°u^'!"°°  "' 

3  alleged  that  perjury  has  been  committed,  an  allegation  of  the  perjury  as  p*s'.'2a5,'|6.' 

4  pro\'ided  in  the  preceding  section  and  an  allegation  that  the  defendant  fsc^iasf' Igl^' 

5  wilfully  incited  or  procured  said  person  to  commit  said  perjury  shall  be  i^s  Mass.  224. 

6  sufficient.    If  it  is  not  alleged  that  such  perjury  has  been  committed,  an 

7  allegation  of  the  substance  of  the  crime  with  which  the  defendant  is 

8  charged  shall  be  sufficient,  without  allegations  as  to  matters  or  things 

9  which  by  the  preceding  section  are  declared  to  be  unnecessary. 

1  Section  45.     In  an  indictment  under  section  thirty-five  of  chapter  indictment 

2  two  hundred  and  seventy-two,  an  allegation  that  the  defendant  com-  andlasdWoL 

3  mitted  an  unnatural  and  lascivious  act  with  the  person  named  or  referred  If^j^  433  5  2. 

4  to  in  the  indictment  shall  be  sufficient.        R.  l.  21s.  §  44.        leo  Mass.  536. 

1  Section  46.     Two  or  more  counts  describing  different  crimes  depend-  ^'fXfor 

2  ing  upon  the  same  facts  or  transactions  may  be  set  forth  in  the  same  different, 

3  indictment  if  it  contains  an  averment  that  the  different  counts  therein  same  indict- 

4  are  different  descriptions  of  the  same  acts.  isei,  isi. 

p.  S.  213,  §  18.  102  Mass.  487.  132  Mass.  263.  152  Mass.  276.  283. 

R.  L.  218,  §  45.  127  Mass.  15.  134  Mass.  201.  159  Ma.ss.  56. 

12  Allen,  451.  128  Mass.  46.  150  Mass.  394.  181  Mass.  1S4. 

proceedings  upon  arraignment  in  capital  cases. 

1  Section  47.     If  a  prisoner,  under  indictment  for  a  capital  crime.  Arraignment. 

2  pleads  guilty,  upon  being  arraigned,  the  court  shall  award  sentence  }s32,'  136,^^6. 

3  against  him;    if  he  does  not  plead  guilty,  the  court  may  assign  him  fjfs^ie 


2818 


INDICTMENTS  AJSTD  PROCEEDINGS  BEFORE   TRIAL.         [CHLiP.   277. 


G.  S.  112, 

§§  8,  9,  20. 

P.  S.  150,  §  19. 

1891,  379,  §  4. 

1893,  365. 

R.  L.  157.  §  10. 

5  Gush,  386. 


counsel  and  take  all  other  measures  preparatory  to  a  trial,  which  shall, 
subject  to  section  seventy-two,  be  held  as  soon  after  the  finding  of  the 
indictment  as  the  other  official  duties  of  the  justices  ■will  admit  and  the 
circumstances  of  the  case  require. 

9  AUen,  585.  12  Al\en.  155.  104  Mass.  537. 


Assignment 
of  counsel 
in  capital 
case  in  dis- 
trict court. 
1911,  432,  §  1. 


Section  48.  If  a  defendant  in  a  capital  case  does  not  plead  guilty 
upon  being  arraigned  before  a  district  court  or  trial  justice,  the  superior 
court  may  assign  him  counsel  upon  his  petition,  and  upon  certification 
to  the  superior  court  of  the  record  of  the  arraignment  and  plea  by  the 
clerk  of  the  district  court,  or  by  the  trial  justice  before  whom  the  ar- 
raignment was  held.  The  case  shall  thereupon  be  continued  until  the 
assignment  of  counsel  has  been  made,  and  certification  thereof  received 
by  the  clerk  of  the  district  court  or  by  the  trial  justice. 


Compensation 
to  counsel. 
1911,  432,  §  2. 


Section  49.     The  superior  court  may  allow  reasonable  compensation  1 

for  the  services  of  counsel  in  the  district  court  assigned  to  defend  the  2 

prisoner,  if  he  is  otherwise  unable  to  procure  counsel,  and  such  com-  3 

pensation  shall  be  paid  by  the  county  where  the  indictment  is  found.  4 


Indictments  in 
Dukes  and 
Nantucliet 
counties. 
1832,  130,  5  6. 
R.  S.  81,  §  46. 
G.  S.  112,  §  24. 
1878, 151. 
P.  S.  150,  §  24. 
1891,  379,  §  5. 
R.  L.  157,  §  11. 


Section  50.     An  indictment  for  a  capital  crime  found  in  Dukes  or  1 

Nantucket  coimty  shall  be  tried  in  Bristol  county;  and  the  court  for  2 

that  purpose  shall  be  convened  and  held,  and  all  proceedings  relative  3 

thereto  conducted,  as  though  the  indictment  had  been  originally  found  4 

in  Bristol  county.     The  court  may  in  such  case,  from  time  to  time  while  5 

the  indictment  is  pending,  make  orders  relative  to  the  place  of  confine-  6 

ment  of  the  prisoner,  and  the  expense  of  his  keeping  shall  in  all  cases  7 

be  paid  by  the  county  where  the  indictment  is  found.  8 


Change  of 

venue. 

1871,  240,  §  1. 

P.  S.  150.  §  26. 

1891,  379,  §  6. 

R.  L.  157,  §  12. 


Section  51.     Upon  petition  of  a  person  indicted  for  a  capital  crime,  1 

the  court  may,  if  in  its  opinion  an  impartial  trial  cannot  be  had  in  the  2 

county  where  the  case  is  pending,  order  a  change  of  venue  to  any  county  3 

adjoining  the  county  where  the  indictment  was  found;    and  on  such  4 

order,  the  court  shall  have  jurisdiction  in  the  county  to  which  such  5 

change  may  be  made.    All  other  proceedings  in  such  case  shall  be  the  6 

same,  as  nearly  as  may  be,  as  if  the  indictment  had  been  originally  7 

entered  in  such  adjoining  county.  8 


Transmission 
of  papers. 
1871,  240,  §  2. 
P.  S.  150,  §  27. 
1891,  379,  §  7. 
R.  L.  157,  I  13. 


Section  52.    The  clerk  of  the  courts  in  the  county  where  the  in-  1 

dictment  is  pending,  or,  if  pending  in  Suffolk  county,  the  clerk  of  the  2 

superior  court  for  criminal  business,  shall  forth^^^th,  upon  the  entry  of  3 

such  order  upon  the  docket,  transmit  the  original  indictment,  with  the  4 

papers  in  the  case  and  a  duly  certified  copy  of  said  order,  to  the  clerk  5 

of  the  coiu-ts  for  the  county  to  which  the  venue  has  been  changed,  or,  6 

if  the  last  named  county  is  Suffolk  county,  to  the  clerk  of  the  superior  7 

court  for  criminal  business;  and  the  clerk,  upon  recei\ing  the  indict-  8 

ment  so  transmitted,  shall  make  immediate  entry  of  the  case  upon  the  9 

docket  of  the  superior  court  for  such  county.  10 


District  at- 
torney to 
conduct  case 
in  new  venue. 
1871,  240,  §  3. 
P.  S.  150,  §  28. 
1891,  379,  §  8. 


Section  53.    After  the  venue  has  been  changed  under  the  two  pre-  1 

ceding  sections,  the  district  attorney  for  the  county  where  the  indict-  2 

ment  was  found  shall  have  the  same  authority  and  duty  in  the  case  as  3 

if  the  venue  had  not  been  changed.  R.  l  157,  §  14.  4 


Chap.  277.]         indictments  and  proceedings  before  trial.  2819 

1  Section  54.     If  a  change  of  venue  is  ordered,  the  sheriff  hax-ing  Custody  of 

2  custody  of  the  prisoner  shall  forthwith  deliver  him  to  the  sheriff  of  the  i87°,°240,  §  4. 

3  county  to  which  the  venue  has  been  changed,  who  shall  receive  and  fsgl'.sTg.VI.' 

4  safely  keep  him  as  if  the  indictment  had  been  found  in  such  county.         ^-  ^-  ^^^-  *  ^^• 

1  Section  55.    A  justice  of  the  court,  sitting  at  the  trial  or  other  Compensation 

2  proceedings  upon  an  indictment  for  murder,  may   allow  reasonable  prisoner.''  ° 

3  compensation  for  the  services  of  counsel  assigned  to  defend  the  pris-  r^^l!  ilv',  I  le. 

4  oner  if  he  is  other%\'ise  unable  to  procure  counsel,  and  such  compensa- 

5  tion  shall  be  paid  by  the  county  where  the  indictment  is  found. 

1  Section  56.     The  reasonable  expenses  incurred  and  paid  by  counsel  ^jfj'ng^fof"^ 

2  assigned  by  the  court  for  the  defence  of  a  person  indicted  for  murder,  fgg"|°|g4  .  j 

3  who  is  otherwise  unable  to  procure  counsel,  shall  be  paid  by  the  county  R.  l!  is?!  |  i7. 

4  where  the  indictment  is  found  after  approval  by  a  justice  sitting  at  the 

5  trial  or  other  proceedings  of  the  case. 


VENUE   OF   specific   CRIMES. 

1  Section  57.     A  crime  committed  on  or  within  one  hundred  rods  of  bouSdairfine. 

2  the  boundary  line  of  two  counties  may  be  alleged  to  have  been  com-  r^J'^ssV? 

3  mitted,  and  may  be  prosecuted  and  punished,  in  either  county;    and  foyf  27V I  j'^' 

4  if  committed  on  or  within  fifty  rods  of  the  boundary  line  of  two  judicial  p.  s.'i54.'§  56: 

5  districts,  it  may  be  alleged  to  have  been  committed,  and  may  be  prose-  i8,s5, 322. 

6  cuted  and  punished,  in  either  district.     A  crime  committed  upon  the  Ifil'.  431!     *' 

7  sea  within  one  league  of  the  shore  may  be  prosecuted  and  punished  in  J^enJIol.*^' 

8  an  adjacent  county.  11s  Mass.  1.  le?  Mass.  173.  216  Mass.  314. 

1  Section  58.    Larceny,  whether  at  common  law  or  as  defined  by  venueof 

2  section  thirty  of  chapter  two  hundred  and  sixty-six,  may  be  prosecuted  i87l,°i6.5. 

3  and  punished  in  any  county  where  the  defendant  had  possession  of  the  r.l.2\s,\47. 

4  property  alleged  to  have  been  stolen. 

165  Mass.  526.  188  Mass.  308.  210  Mass.  443. 

1  Section  59.     The  crime  of  obtaining  money  or  a  personal  chattel  by  Venue  of  in- 

2  a  false  pretence,  and  the  crime  described  in  section  thirty-one  of  chapter  obtaining  °^ 

3  two  hundred  and  six-ty-six,  may  be  alleged  to  have  been  committed,  and  pr^ences^  "  ^^ 

4  may  be  prosecuted  and  punished,  in  any  county  where  the  false  pretence  p^  a'2^i3^'§^2\. 

5  was  made,  written  or  used,  or  in  or  through  which  any  of  the  property  fsg'^fass'  los ' 

6  obtained  was  carried,  sent,  transported  or  received  by  the  defendant. 

1  Section  60.     If  a  mortal  wound  is  given,  or  if  other  violence  or  injury  Venue  of  in- 

2  is  inflicted,  or  if  poison  is  administered,  in  one  county,  by  means  whereof  inTuT is  in 

3  death  ensues  in  another  county,  the  homicide  may  be  prosecuted  and  anddeath^in 

4  punished  in  either  county.  another. 

1795,  45,  §1.  P.  S.  213,  §22.  118  Mass.  1. 

R.  S.  133.  §  8.  R.  L.  218,  §  49.  216  Mass.  314. 

G.  S.  171,  §  18.  2  Pick.  549. 

1  Section  61.     If  a  mortal  wound  is  given,  or  if  other  violence  or  injury  Venucof 

2  is  inflicted,  or  if  poison  is  administered,  on  the  high  seas  or  on  land  either  c"ime"om-  °^ 

3  within  or  without  tlie  commonwealth,  by  means  whereof  death  ensues  in  "tc"'''^ "'  ^''^' 


2820 


INDICTMENTS  AND  PROCEEDINGS  BEFORE  TRUL.         [ClL^P.   277. 


1795, 45.  §  2.     any  county  thereof,  the  homicide  may  be  prosecuted  and  punished  in  the    4 
a',  s.  i7i!  §  19.  county  where  the  death  happens.  5 


p.  S.  213,  §  23. 


R.  L.  218,  I  50. 


101  Mass.  1. 


123  Mass.  430. 


dictmentir  SECTION  62.     If  a  mortal  wound  is  given,  or  if  other  violence  or  injury 

comrnonweaith^  Js  inflicted,  or  if  poison  is  administered,  in  any  county  of  the  common- 
outeid™*''         wealth,  by  means  whereof  death  ensues  without  the  commonwealth,  the 
PS-2i'3  \24    homicide  may  be  prosecuted  and  punished  in  the  county  where  the  act 
was  committed. 


Limitation  of 
criminal 
prosecutions. 
R.  S.  136,  §  16. 
G.  S.  171,  I  20. 
P.  S.  213,  I  25. 
R.  L.  218.  §  52. 
205  Mass.  128. 


LnilTATION   OF   CRIMINAL  PROSECUTIONS. 

Section  63.     An  indictment  for  murder  may  be  found  at  any  time  1 

after  the  death  of  the  person  alleged  to  have  been  murdered.    An  indict-  2 

ment  for  any  other  crime  shall  be  found  and  filed  within  six  years  after  3 

the  crime  has  been  committed;  but  any  period  during  which  the  defend-  4 

ant  is  not  usually  and  publicly  resident  within  the  commonwealth  shall  5 

be  excluded  in  determining  the  time  limited.  6 


Limitation  of 
new  indictment 
against  corpo- 
ration after 
abatement  of 
former  one,  etc. 
1867,  164. 
P.  S.  213,  §  26. 
R.  L.  218.  §  53. 


Section  64.     If  an  indictment,  duly  found  and  returned  within  the  1 

time  limited  by  law  against  a  corporation  to  recover  a  pecuniary  penalty,  2 

is  abated  or  otherwise  avoided  or  defeated  by  reason  of  any  matter  of  3 

form,  or  if  after  a  verdict  against  such  corporation  judgment  is  arrested,  4 

or  if  a  judgment  against  such  corporation  is  reversed  on  'v\Tit  of  error,  a  5 

new  indictment  for  the  same  cause  may  be  found  and  filed  within  one  6 

year  after  the  abatement  of  the  former  indictment  or  the  reversal  of  the  7 

judgment  as  aforesaid.  8 


Prisoner  to  be 
serv-ed  ^vith 
copy  of  indict- 
ment, etc. 
1832,  130,  §  6. 
R  S.  136, 
§§  18,  19. 
G.  S.  171, 
1869,  433, 
1878,  151, 
P.  S.  213.  §28. 
1891,379,  §  11. 
R.  L.  218,  §  54. 


r22. 
»  1. 
i  2. 


ARREST,  .UIR.4.IGNMENT  AND  OTHER  PROCEEDINGS. 

Section  65.  After  the  finding  of  an  indictment  for  murder,  the  defend- 
ant, if  in  custody,  shall  forthwith  be  served  by  the  sheriff  or  his  deputy 
with  a  copy  thereof  and  with  an  order  of  the  court  notifying  him  that  the 
indictment  will  be  entered  forthwith  upon  the  docket  of  the  superior  court 
for  the  county  where  found,  or,  if  found  in  Dukes  or  Nantucket  county, 
that  it  will  be  entered  forthwith  upon  the  docket  of  the  superior  court 
for  Bristol  county.  5  Cush.  385. 


Prisoner  to 
have  list  of 
jurors  and 
process  for 
witnesses. 
R.  S.  136,  §  23. 
G.  S.  171,  §  24. 
P.  S.  213.  §  31. 
R.  L.  218,  §  55. 


Section  66.     A  prisoner  indicted  for  a  crime  punishable  with  death  1 

or  imprisonment  for  life,  upon  demand  by  him  or  his  counsel  upon  the  2 

clerk,  shall  have  a  list  of  the  jurors  who  have  been  returned  and  process  3 

to  summon  witnesses  who  are  necessary  to  his  defence,  at  the  expense  of  4 

the  commonwealth.                              13  Mass.  501.                             104  Mass.  537.  5 


entitie<f  toTOpy  Section  67.  \Mioever,  having  been  indicted  for  felony,  is  under  re- 
R.'s.  i36!'r24.  cognizance  or  in  custody  to  answer  therefor  shall  be  entitled  to  a  copy 
G.  s.  Ill,  §  2o.  p^  ^j^g  indictment  and  of  all  endorsements  thereon  without  charge. 

p.  S.  213,  §  32.  R.  L.  218,  §  56. 


Prosecuting 
officers  may 
issue  sub- 
poenas. 

R.  S.  136,  §  25. 
G.  S.  171,  §  21;. 
P.  S.  213,  §  33. 
R.  L.  218,  §  57. 


Section  68.     The  attorney  general  and  district  attorneys  may  issue  1 

subpoenas  under  their  hands  for  witnesses  to  appear  and  testify  on  behalf  2 

of  the  commonwealth,  and  such  subpoenas  shall  have  the  same  force,  and  3 

be  obeyed  in  the  same  manner,  and  under  the  same  penalties,  in  case  of  4 

default,  as  if  issued  by  the  clerk  of  the.court,  5 


Ch.\P.   277.]  INDICTMENTS  AND  PROCEEDINGS  BEFORE  TRIAL.  2821 

1  Section  69.     Witnesses  summoned  in  behalf  of  the  commonwealth  witnesses  for 

2  shall  attend  without  the  payment  of  fees,  and  shall  be  punishable  for  to'SuenT'"' * 

3  non-attendance;    but  if  the  court  finds  that  they  are  unable  to  defray  r.'s.°i36,T26. 

4  their  expenses,  it  shall  order  their  fees  which  have  accrued  to  be  paid,  Q^|'f|i  527 

5  and  may  make  such  further  order  for  the  payment  of  their  fees  as  may  be  ?■  |;  ^^^-  §  ||- 

6  considered  reasonable.     The  court  may  at  each  sitting  pass  a  general 

7  order  for  the  payment  of  the  fees  of  such  witnesses. 

1  Section  70.     A  justice  of  a  court  of  record  may  at  any  time  order  a  witness  to 

2  witness  for  the  commonwealth  in  a  criminal  case  or  in  a  case  under  sec-  when. 

.3  tions  fifty-two  to  sixty-four,  inclusive,  of  chapter  one  hundred  and  nine-  UtI',  tu. 

4  teen,  pending  in  such  court  to  recognize,  with  or  without  sureties,  to  R.i'.l'is.Vsg. 

5  appear  and  testify  at  the  next  or  any  succeeding  sitting  of  said  court, 

6  and  may  issue  a  M-arrant  to  bring  such  witness  before  him  to  recognize  as 

7  aforesaid ;  but  a  witness  unable  to  procure  sureties  shall  not  on  that  ac- 

8  count  be  committed  to  jail  except  in  cases  of  felony. 

1  Section  71.     If  a  defendant  upon  arraignment  refuses  to  plead  or  Arraicnment. 

2  does  not  confess  the  indictment  to  be  true,  the  court  shall  order  a  plea  of  mute."^ 

3  not  guilty  to  be  entered,  and  shall  thereupon  proceed  as  if  he  had  pleaded  r®|;  i^af  ^' 

4  not  guilty.    It  shall  not  be  necessary  in  any  case  to  ask  a  prisoner  how  ^  |*'in,  §  29 

5  he  will  be  tried. 

p.  S.  213,  §  37.  10  Met.  222.  125  Mass.  397. 

R.  L.  218,  §  60.  13  Allen,  663.  165  Mass.  296. 

1  Section  72.     Whoever  is  held  in  custody  upon  an  indictment  shall,  ot^riif' ""^ 

2  if  he  requires  it,  either  be  tried  at  the  sitting  of  the  court  next  after  the  ^^^^'  ^^.^l  i3.^ 

3  expiration  of  six  months  from  the  time  when  he  was  imprisoned  or  be  g-  s.  i7i!  §  3o. 

4  bailed  upon  his  own  recognizance,  unless  the  court  finds  that  the  wit-  r.  l.  218.  §  oi. 

5  nesses  on  behalf  of  the  government  have  been  enticed  or  kept  away  or 

6  have  been  detained  and  prevented  from  attending  the  court  by  illness  or 

7  inevitable  accident. 

1  Section  73.     Any  person  in  the  commonwealth  kept  in  confinement  Compensation 

2  awaiting  trial  for  more  than  six  months  after  having  been  indicted,  and  dischal-ged  in 

3  finally  acquitted  or  discharged  without  trial,  if  the  delay  in  trial  was  not  IViulyjf^' 

4  at  his  request  or  with  his  consent,  or  at  the  request  or  with  the  consent 

5  of  his  attorney  of  record,  may  receive  compensation  for  the  period  of  his 

6  confinement  after  the  lapse  of  said  six  months  and  until  his  acquittal  or 

7  discharge;  provided,  that  the  payment  of  compensation  is  approved  by 

8  the  justice  who  presided  at  the  trial,  or  in  case  of  a  discharge  without  trial, 

9  by  a  justice  of  the  superior  court  sitting  at  a  session  for  criminal  business 

10  in  and  for  the  county  where  the  indictment  was  found.    Such  compen-     - 

11  sation  shall  be  paid  by  the  county  where  the  indictment  was  found  and 

12  shall  be  equivalent  to  the  amount  which  the  indicted  person  earned  or 

13  received  from  his  regular  emplojTnent  for  any  period  of  equal  length 

14  during  the  two  years  immediately  preceding  his  confinement;   and  if  he 

15  had  no  employment,  the  compensation  shall  be  such  reasonable  sum  as 

16  shall  be  determined  by  the  justice  who  presided  at  the  trial,  or,  in  case  of 

17  a  discharge  without  trial,  by  a  justice  of  the  superior  court  sitting  at  a 

18  session  for  criminal  business  in  and  for  the  county  where  the  indictment 

19  was  found.    The  justice,  upon  application  by  the  person  acquitted  or 

20  discharged,  shall  give  a  hearing  at  which  such  person  or  his  representa- 

21  tive  may  be  present,  if  he  so  desires,  and  the  district  attorney  or  other 


2822 


INDICTMENTS  AND  PROCEEDINGS  BEFORE  TRUL.  [ClLiP.   277. 


officer  representing  the  commonwealth  or  the  county  may  also  be  present,  22 
and  the  person  acquitted  or  discharged  and  the  commonwealth  or  county  23 
may  offer  testimony  as  in  any  civil  case.  The  decision  of  the  justice  24 
shall  be  final.  25 

oiphTin"^  Section  74.    The  coiu-t  may  refuse  to  receive  a  plea  in  abatement  or     1 

n'^sl'Tle'i  31.  other  dilatory  plea  to  an  indictment  until  its  truth  has  been  proved  by    2 
G.  s.  171, 1 31.  affidavit  or  other  evidence.  p.  s.  213,  §  39.  r.  l.  21s,  §  62.  3 


pie™of°former  SECTION  75.  In  a  plea  of  autrefois  acquit  or  autrefois  con\'ict,  an 
i864'"5o  1 4  'I'^egation  that,  at  a  certain  sitting  of  a  certain  court,  which  shall  be  set 
PS.'2i3.§4o.  forth,  the  defendant  was  lawfully  acquitted  or  convicted,  as  the  case 
8  Allen,  545.  '  may  be,  of  the  same  crime  with  which  he  is  again  charged  shall  be 
sufficient. 


113  Mass.  200. 


toTxamtne'  Section  76.     If  an  issue  of  fact  is  joined  upon  an  indictment,  the 

H.'s'^rie,  1 32.  court  may,  upon  application  of  the  defendant,  grant  a  commission  to 
p.' I.' 213,' Ml'  examine  any  material  witnesses  residing  out  of  the  commonwealth,  in 
5'Met^4i2^  '^'  ^^^^  same  manner  as  in  ci\dl  causes;  and  the  prosecuting  officer  may  join 
in  such  commission,  and  may  name  any  material  witnesses  to  be  ex- 
amined on  the  part  of  the  commonwealth. 


how  Secute'd.        SECTION  77.     When  such  commission  is  issued,  the  interrogatories  to 
how'Ssed'."'       be  annexed  thereto  shall  be  settled  and  the  commission  executed  and 
§;  I;  J71;  1 11  returned  as  is  provided  in  relation  to  commissions  in  civil  cases,  and 
R  L  ^2\^8  Yis  ^'^^  depositions  taken  thereon  and  returned  shall  be  read  in  the  same 
manner  and  with  the  like  effect,  and  subject  to  the  same  exceptions, 
as  in  civil  cases;  but  if  the  defendant  on  his  trial  declines  to  use  the 
deposition  so  taken,  the  prosecuting  officer  shall  not,  without  the  de- 
fendant's consent,  make  use  of  any  deposition  taken  on  behalf  of  the 
commonwealth. 


norbarred^by        SECTION  78.     No  proceedings  against  a  person  for  a  crime  shall  bar  a  1 

prOTMdings       ^^^'^^  actiou  which  might  otherwise  be  maintained  by  a  person  aggrieved  2 

1851, 151,  §  6.    by  the  commission  of  the  crime.  3 

1856,  123,  §  6,  G.  S.  171,  §  34.  P.  S.  213,  §  43.  R.  L.  218,  §  66. 


aifne'^ed^orms.  SECTION  79.  The  provisions  of  this  chapter,  and  the  forms  hereto 
sIT'l'^ls  annexed,  shall  apply  as  well  to  complaints  as  to  indictments,  and  such 
R- L.  218,  §  67.  forms  shall  be  sufficient  in  cases  to  which  they  are  applicable.  In  other 
§  18-'  '  cases,  forms  as  nearly  like  the  forms  hereto  annexed  as  the  nature  of  the 
232  Mass! 588.  cases  and  the  provisions  of  law  will  allow  may  be  used;  but  any  other 
form  of  indictment  or  complaint  authorized  by  law  may  be  used. 


Forms  of 
pleadings. 


Caption  and 
commencement 
of  indictment. 


SCHEDULE  OF  FORMS  OF  PLEADINGS. 
Caption  and  Commencement  of  Indictment. 

commonwealth  of  massachusetts. 

(Suffolk,)  to  wit: 

At  the  Superior  Court  liolden  at  (Boston,)  within  and  for  the  County  of 
(Suffolk,)  for  the  transaction  of  criminal  business,  on  the  day  of 

in  the  year  of  our  Lord  one  thousand,  etc. 

The  jurors  for  the  said  Commonwealth  on  their  oath  present 


Chap.  277.]        indictments  and  proceedings  before  trial.  2823 

Caption  and  Commencement  op  Complaint. 
{To  a  Police,  District  or  Municipal  Court.) 

COMMONWEALTH  OF  MASSACHUSETTS. 
(Suffolk,)  to  wit:  Caption  and 

To  the  court  of     _  holden  at  for  the  trans-  ^""nTof  ctm- 

action  of  criminal  business,  within  the  County  of  ,  A.  B.  of  plaint. 

in  behalf  of  the  Commonwealth  of  Massachusetts  on  the  day  of 

in  the  year  ,  on  oath  complains  that 

{To  a  Trial  Justice.) 

To  A.  B.,  a  Trial  Justice  in  and  for  the  County  of  and  Com- 

monwealth of  Massachusetts,   C.  D.   of  {etc.  as  ■  in  form  above). 

{To  a  Justice  of  the  Peace  commissioned  to  Issue  Warrants.) 

To  A.  B.,  Justice  of  the  Peace  in  and  for  the  County  of  and  Com- 

monwealth of  Massachusetts,  designated  and  commissioned  to  issue  warrants 
in  criminal  cases,  C.  D.  of  {etc.  as  inform  above). 

{If  the  statute  requires  a  particular  person  to  make  complaint,  this  should  be 
alleged.) 

Abduclwn.  (Under  Chap.  272,  §§  1,  2.)  —  (1)  That  A.  B.  did  fraudulently  Abduction. 
and  deceitfully  entice  (and  take  away)  one  C.  D.,  an  unmarried  female  under  the 
age  of  sixteen  years,  from  the  house  of  her  father  {or  guardian,  etc.,  as  the  case 
may  be),  without  the  consent  of  the  said  father  {or  guardian,  etc.,  as  the  case  may 
be),  under  whose  care  and  custody  said  C.  D.  was  living,  for  the  purpose  of  effect- 
ing a  clandestine  marriage  of  said  C.  D.  without  the  consent  of  her  said  father 
{or  guardian,  etc.,  as  the  case  may  be). 

(2)  That  A.  B.  did  fraudulently  and  deceitfully  entice  (and  take  away)  C.  D.,  a 
woman  or  girl,  from  her  father's  house  {or  if  elsewhere,  state  it,  as  the  case  may  be), 
for  the  purpose  of  prostitution  {or  for  the  purpose  of  unlawful  sexual  intercourse 
wth  her) . 

Abortion.     (Under  Chap.  272,  §  19.)  —  (1)  That  A.  B.,  with  intent  to  procure  Abortion, 
the  miscarriage  of  C.  D.,  did  unlawfully  administer  to  her  (or  ad\'ise,  or  prescribe  195  Mass.  lOO. 
for  her,  or  cause  to  be  taken  by  her)  a  certain  drug  {or  medicine  or  other  no.xious 
thing,  as  the  case  may  be) . 

//  the  woman  dies,  add  "and  in  consequence  thereof  said  C.  D.  died". 

(2)  That  A.  B.,  with  intent  to  procure  the  miscarriage  of  C.  D.,  did  unlaw- 
fully use  a  certain  instrument  upon  the  body  of  said  CD.,  and  in  consequence 
thereof  said  C.  D.  died. 

(3)  That  A.  B.,  with  intent  to  procure  the  miscarriage  of  C.  D.,  did  unlawfully 
do  certain  things  {naming  them)  to  {or  upon  the  body  of)  said  C.  D. 

Accessory  before  the  fact.    (Under  Chap.  274,  §  2.)  —  Charge  principal  felony  and  Accessory 
proceed:  That  A.  B.,  before  the  said  felony  was  committed,  did  incite,  procure,  fac°.™  *  ^ 
aid,  counsel,  hire  or  command  the  said  (principal)  the  said  felony  to  do  and  202  Mass.  121. 
commit. 

Accessory  after  the  fact.  (Under  Chap.  274,  §  4.)  —  Charge  principal  felony  Accessory 
and  proceed:  That  A.  B.  afterwards,  well  knowing  the  said  C.  D.  to  have  com-  aftw  the  £»<=*• 
mitted  the  felony  aforesaid,  did  harbor,  (conceal,  maintain,)  or  assist  said  C.  D., 
with  intent  that  said  C.  D.  should  avoid  or  escape  (detention,  arrest,)  trial,  or 
punishment;  the  said  A.  B.  not  standing  in  the  relation  of  husband  or  wife,  parent 
or  grandparent,  child  or  grandchild,  brother  or  sister,  by  consanguinity,  affinity 
or  adoption  to  the  said  C.  D. 

Adultery.     (Under  Chap.  272,  §  14.)  —  (1)  That  A.  B.  and  C.  D.,  a  married  Adulter^-, 
woman,  they  not  being  married  to  each  other,  did  commit  adultery  with  each 
other. 

(2)  That  A.  B.,  a  married  man,  did  cormnit  adultery  mth  C.  D.,  they  not 
being  married  to  each  other. 

Affray.  —  That  A.  B.  and  C.  D.  did  make  an  affray.  Affray. 

Armed  with  dangerous  weapon  when  arrested.     (Under  Chap.   2G9,   §  9.) — Armed  with 
(1)  That  A.  B.,  while  being  lawfully  arrested  on  a  sufficient  warrant  on  a  criminal  ^eaponwhen 
charge,  was  armed  with  a  dangerous  weapon,  to  wit,  a  slung  shot  {or  other  dan-  arrested, 
gerous  weapon,  as  the  case  may  be) . 


2824 


nSIDICTMENTS   AND   PROCEEDINGS  BEFORE  TRLiL.         [ClL\P.   277. 


Arson. 


Assault  and 
batteo'. 
Assault  to 
maim,  etc. 

Assault  to 
murder. 

Assault  to 
rape. 


Assault  with 
dangerous 
weapon  to  rob, 
etc. 

Assault  upon 
an  officer. 


Assuming  to 
be  an  officer. 


Attempt  to 
break  and 
enter. 


Attempt  to 
commit  crime. 
177  Mass.  267. 


Attempt  to 
steal  from 
person. 


Bastardy. 


Breaking, 
entering,  etc, 


(2)  That  A.  B.,  while  committing  tlie  crime  of  (here  state  crime),  was  lawfully 
arrested  by  C.  D.,  .sheriff  of  said  county,  and  when  so  arrested  was  armed  with, 
and  had  on  his  person,  a  certain  dangerous  weapon  (a  slung  shot,  etc.,  as  the 
case  may  be) . 

Arson.  (Under  Chap.  266,  §§  1,  2,  4.)  —  (1)  That  A.  B.  wilfully  and  maliciously 
did  burn  the  dwelling  house  of  C.  D.  in  in  said  county. 

(2)  That  A.  B.  wilfully  and  maliciously  did  burn  a  building  adjoining  the 
dwelling  house  of  C.  D.  in  in  said  county. 

(3)  That  A.  B.  -ndlfully  and  maliciously  did  set  fire  to  a  building  in 
by  the  burning  whereof  the  dwelling  house  of  C.  D.  was  burned. 

(4)  That  A.  B.  wLfully  and  maliciously,  in  the  night  time,  did  burn 

(a)  A  meeting  house  (or  church,  town  house,  etc.)  in  in  said  county, 

erected  for  public  use. 

(6)  A  banking  house  (or  warehouse,  etc.)  of  C.  D.  in  in  said  county, 

of  the  value,  with  the  property  therein,  of  one  thousand  doUars  and  not  the 
property  of  (the  defendant). 

(c)  A  barn  (or  .stable  or  shop  or  office)  of  C.  D.,  in  in  said  county, 

the  same  being  there  within  the  curtilage  of  the  dwelling  house  of  said  C.  D. 

(5)  That  A.  B.  wilfully  and  maliciously  did  burn  a  building,  by  the  burning 
whereof  [(o),  (b),  or  (r)]  was  burned  in  the  night  time. 

(6)  That  A.  B.  wilfully  and  maliciously  did  burn  a  banking  house  (or  other 
sirvcture  mentioned  in  the  statute,  as  the  case  may  be)  of  C.  D.,  in 

in  said  county. 

Assault  and  battery.  —  That  A.  B.  did  assault  and  beat  C.  D. 

Assmdtio  maim,  etc.  (Under  Chap.  26.5,  §  1.5.)  — That  A.  B.  did  assault  C.  D., 
with  the  malicious  intent  to  maim  (or  disfigure)  said  C.  D.  by  cutting  out  his 
tongue  (or  other  facts  required  by  the  nature  of  the  case). 

Assault  to  murder.  (Under  Chap.  265,  §  15.)  —  That  A.  B.  did  assault  C.  D., 
with  intent  to  murder  him. 

Assault  to  rape.  (Under  Chap.  265,  §  24.)  —  (1)  That  A.  B.  did  assault  C.  D., 
with  intent  to  commit  rape  ujion  her. 

(2)  That  A.  B.  did  assault  C.  D.,  a  female  child  under  the  age  of  sixteen 
years,  with  intent  unlawfully  and  carnally  to  know  and  abuse  her. 

Assault  U'ith  dangerous  iceapon,  with  intent  to  rob,  etc.  (Under  Chap.  265,  §  18.) 
—  That  A.  B.,  being  armed  with  a  dangerous  weapon,  did  assault  C.  D.,  with 
intent  to  rob  him  (or  to  murder  him). 

Assault  upon  an  officer.  —  That  A.  B.  did  a.ssault  and  beat  C.  D.,  who  was  a 
police  officer  of  the  (city  of  Boston)  (or  whatever  the  fact  may  be),  and  who  was 
also  in  the  lawful  discharge  of  his  duties  as  such  officer,  as  said  (defendant)  well 
knew,  (and  knowingly  resisted  and  obstructed  him  in  the  discharge  of  his  lawful 
duties).     This  clause  may  be  added  if  facts  require. 

Assuming  to  he  an  officer.  (Under  Chap.  268,  §  33.)  —  That  A.  B.  did  falsely 
assume  and  pretend  to  one  C.  D.  that  he,  said  A.  B.,  was  a  police  officer  of  (the 
city  of  )  (or  a  constable  of  the  city  of  ),  and  did  take  upon 

himself  to  act  as  such  officer,  and  did  (state  what  he  did  if  desired). 

Attempt  to  break  and  enter.  (Under  Chap.  274,  §  6.)  —  That  A.  B.  did  attempt 
to  break  and  enter  a  certain  building  in  said  (Boston)  of  one  C.  D.,  in  the  (night) 
time,  with  intent  therein  to  commit  larceny,  and  in  such  attempt  did  (set  out  the 
orert  act  relied  on) ;  but  did  fail  in  the  perpetration  of  said  attemjited  offence 
(or  was  intercepted  and  prevented  in  the  execution  of  said  attempted  offence). 

Attempt  to  commit  crime.  (Under  Chap.  274,  §  6.)  —  That  A.  B.  did  attempt 
to  commit  larceny  of  the  property  of  (another),  (or  such  other  crime  as  may  he 
intended  to  he  charged),  and  in  such  attemijt  did  (set  out  the  overt  act  relied  on); 
but  did  fail  in  the  perpetration  of  said  attempted  offence  (or  was  intercepted 
and  prevented  in  the  execution  of  said  attempted  offence). 

Attempt  to  steal  from  person.  (Under  Cha]").  274,  §  6.)  —  That  A.  B.  did  attempt 
to  steal  from  the  person  of  C.  D.,  and  in  such  attemijt  did  put  his  hand  against 
the  person  and  into  the  pocket  of  the  said  C.  D.;  but  did  fail  in  the  perpetration 
of  said  attempted  offence  (or  was  intercepted  and  prevented  in  the  execution 
of  said  attempted  offence). 

Ba.itardy.  (Under  Chap.  273,  §  11.)  —  That  A.  B.  did  get  C.  D.  with  child, 
which  is  now  living  (or  of  which  she  is  now  pregnant),  he,  the  said  A.  B.,  not  then 
nor  since  being  the  lawiul  husband  of  her,  the  said  C.  D. 

Breaking,  entering,  etc.  (Under  Chap.  260,  §§  16-19.)  —  (1)  That  A.  B.  did 
break  and  enter  in  the  night  time  the  building  (or  ship  or  vessel)  of  one  X.,  situated 
in  said  (Boston),  with  intent  therein  to  conunit  murder  (or  rape,  robbery,  etc.). 


ClL\P.   277.]  INDICTMENTS   ANT)   PROCEEDINGS  BEFORE  TRIAL.  2825 

(2)  That  A.  B.  did  break  and  enter  (or  entered  in  the  night  time  Tvithout 
breaking)  a  building  (or  ship  or  vessel)  of  one  X.,  in  said  (Boston),  with  intent 
(as  above),  the  said  X.  (or  other  person),  who  was  lawfully  therein,  being  put  in 
fear. 

(3)  That  A.  B.  did  break  and  enter  (or  entered  in  the  night  time  without  break- 
ing) a  railroad  car  situated  in  said  (Boston),  of  the  (name  of  the  railroad),  with 
intent  therein  to  commit  larceny  (or  murder,  etc.,  as  the  case  may  be). 

(4)  That  A.  B.  did  enter  in  the  night  time  the  dwelling  house  of  one  X.,  in  said 
(Boston),  with  intent  therein  to  commit  larceny  (or  murder,  etc.,  as  the  case 
may  be). 

(5)  That  A.  B.  did  break  and  enter  a  building  (or  ship  or  vessel)  of  one  X.,  in 
said  (Bo.ston),  with  intent  therein  (etc.  as  above). 

Breaking  glas.'i.     (Under  Chap.  266,  §  114.)  — That  A.  B.  did  wantonly  (or  Breaking 
maliciously)  break  certain  panes  of  glass  in  and  part  of  a  certain  building,  the  siasa. 
property  of  C.  D.  in  said  (Boston). 

Burglarious  implemenls.  (Under  Chap.  266,  §  49.)  —  That  A.  B.  knomngly  did  Burglarious 
have  in  his  possession  certain  machines,  tools  and  implements  adapted  and  de-  "np''=n«o's. 
signed  for  cutting  through,  forcing  and  brealdng  open  buildings,  rooms,  vaults, 
safes  (and  other  depositories),  in  order  to  steal  therefrom  such  money  and  other 
property  as  might  be  found  therein,  said  A.  B.  knowing  said  machines,  tools 
and  implements  to  be  adapted  and  designed  for  the  purpose  aforesaid,  and  in- 
tending to  use  and  employ  them  therefor. 

Burglary,  etc.     (Under  Chap.  266,  §§  14,  15.)  —  (1)  That  A.  B.  in  the  night  Burglary,  etc 
time  did  break  and  enter  the  dwelling  house  of  C.  D.,  situated  in  said  (Boston), 
■with  intent  therein  to  commit  larceny  (or  murder,  rape  or  robbery,  as  the  case 
may  be). 

(If  desired  add  actual  larceny  in  the  building. ) 

(2)  That  A.  B.  did  enter  the  dwelhng  house  of  one  X.,  situated  in  said  (Bo.ston), 
with  intent  therein  to  commit  larceny,  and  after  ha\ing  so  entered  with  said 
intent  did  break  said  dwelling  house  in  the  night  time,  X.  being  lawfully  therein, 
and  said  A.  B.  being  armed  with  a  dangerous  weapon  at  the  time  of  such  entry 
(ofT  such  breaking)  (or  arming  himself  with  a  dangerous  weapon  in  said  house) 
{or  did  make  an  assault  on  said  X.,  wiio  was  lawfully  therein). 

(3)  That  A.  B.  did  break  and  enter  the  dwelling  house  of  one  X.,  in  said  (Bos- 
ton), in  the  night  time,  with  intent  therein  to  commit  larceny  (or  murder,  etc.,  as 
the  case  may  be). 

Burning  to  defraud  insurance  company.     (Under  Chap.  266,  §  10.)  —  That  Burning  to 
A.  B.  did  burn  a  certain  building  in  in  said  county,  [or  certain  goods,  ance'company 

wares  and  merchandise  (or  other  chattels  —  na7ne  the  property)]  wliich  was  (or  were)  177  Mass.  267.' 
at  the  time  of  such  burning  insured  in  the  Insurance 

Company,  a  corporation  duly  established  by  law,  against  loss  or  damage  by  fu-e, 
with  the  intent  thereby  to  injure  the  said  insurer. 

Common  drunkard.     (Under  Chap.  272,  §  53.)  —  That  A.  B.,  during  the  three  Common 
months  next  before  the  making  of  this  complaint,  was  a  common  drunkard.      drunkard. 

Common  nightiralker.     (Under  Chap.  272,  §  53.)  —  That  A.  B.,  during  the  three  Common  night- 
months  next  before  the  making  of  this  complaint,  was  a  common  nightwalker,  J^?'''"-     -^, 
habitually  walking  in  the  streets  in  the  night  time  for  the  purpose  of  prostitution.        ^  "*'*■ 

Concealing  mortgaged  personal  property.     (Under  Chap.  266,  §  82.)  —  That  Concealing 
A.  B.  did  mortgage  to  X.  in  due  form  of  law  certain  personal  property  (setting  ™°g'^;!^'^'^ 
out  the  mortgaged  property),  and  that  afterward,  the  said  mortgage  being  in  full  property, 
force  and  effect,  and  the  said  X.  remaining  the  owner  thereof  (if  such  be  the  fact), 
said  A.  B.  did  remo\-e  and  conceal  the  said  property  with  fraudulent  intent  to 
place  the  same  beyond  the  control  of  the  said  X. 

Conspiracy. —  (1)  That  A.  B.  and  C.  D.  conspired  together  to  murder  one  E.  F.  Conspiracy. 

(2)  That  A.  B.  and  C.  D.  conspired  together  to  commit  rape  upon  E.  F. 

(3)  That  A.  B.  and  C.  D.  conspired  together  to  steal  the  property,  money, 
etc.,  of  E.  F. 

Cruelty  to  animals.     (Under  Chap.  272,  §  77.)  —  (1)  That  A.  B.  did  over-  Cruelty  to 
drive  (overload)  (drive  when  overloaded)  (overwork)  (torture)  (torment)  (de-  animals. 
prive  of  necessary  sustenance)   (cruelly  beat)   (cruelly  mutilate)   (crueUy  kill) 
a  certain  horse  (or  dog,  etc.). 

(2)  That  A.  B.  did  cause  and  procure  one  C.  D.  to  overdrive  (etc.)  a  certain 
horse  (etc.). 

(3)  That  A.  B.,  having  the  charge  and  custody  of  a  certain  horse  (etc.),  did 
inflict  unnecessary  cruelty  ujion  it. 

(4)  That  A.  B.,  having  the  charge  and  custody  of  a  certain  horse  (etc.),  did 


2826 


INDICTMENTS  AND  PROCEEDINGS  BEFORE  TRIAL.         [ChAP.   277. 


Disorderly 
house. 


Drunkenness. 

Eavesdropping. 


Escape. 
1920,  558,  §  4. 


Exposure  of 
person. 


Forged 
endorsement. 


Forgery. 

Fornication. 
Gaming, 


House  of 
iJl  fame. 


Idle  and  dis- 
orderly 
person. 


Incest. 


Larceny. 
202  Mass.  379. 
210  Mass.  445. 
213  Mass.  225. 
218  Mass.  607. 
224  Mass.  42. 

Larceny  from 
a  conveyance. 


Larceny  from 
realty. 


Larceny  in 
building. 


unnecessarily  fail  to  pro\dde  it  Tvith  proper  food  {or  drink  or  shelter  or  protection 
from  the  weather) . 

Disorderly  house.  (Under  Chap.  219,  §  27.)  —  That  A.  B.,  during  the  three 
months  next  before  the  finding  of  this  indictment,  at  said  (Boston)  did  keep  and 
maintain  a  certain  and  common,  noisy,  Ul-governed  and  disorderly  house,  re- 
sorted to  for  the  purpose  of  drinking,  quarrelling,  making  great  noises,  and  break- 
ing and  disturbing  the  peace,  to  the  common  nuisance  of  all  the  people. 

Drunkenness.  (Under  Chap.  272,  §  48.)  —  That  A.  B.  was,  by  the  voluntary 
use  of  intoxicating  liquor,  drunk. 

Eavesdropping.  (Under  Chap.  272,  §  99.)  —  That  A.  B.  did  commit  the 
crime  of  eavesdropping. 

Escape.  (Under  Chap.  268,  §  16.)  — That  A.  B.,  being  la^\-fully  imprisoned 
in  the  House  of  Correction  {or  State  Prison),  in  said  county,  did  break  therefrom 
and  escape. 

Exposure  of  person.  —  That  A.  B.,  in  a  public  place  in  said  (Boston),  wherein 
were  great  numbers  of  people,  indecently  did  expose  to  the  view  of  the  said 
people  his  body  and  person  naked  and  uncovered. 

Forged  endorsement.  —  That  A.  B.  did  forge  a  certain  endorsement  in  and  upon 
the  back  of,  and  as  a  part  of,  a  certain  promissory  note,  with  intent  to  injure  and 
defraud.     {The  purport  or  substance  of  the  note  and  endorsement  may  be  set  forth.) 

Forgery.  (Under  Chap.  267,  §  1.)  —That  A.  B.,  with  intent  to  injure  and 
defraud,  did  forge  a  certain  instrument  purporting  to  be,  etc.  {give  the  name  of 
the  instrument,  description,  tenor  or  substance  as  the  pleader  chooses). 

Fornication.  (Under  Chap.  272,  §  18.)  —  That  A.  B.  did  commit  fornication 
with  C.  D.,  a  single  woman. 

Gaming.  (Under  Chap.  139,  §  1.5.)  —  That  A.  B.,  during  the  three  months 
next  before  the  finding  of  this  indictment,  at  said  (Boston),  did  keep  and  main- 
tain a  certain  common  nuisance,  to  wit,  a  tenement  resorted  to  and  used  for 
illegal  gaming. 

House  of  ill  fame.  (Under  Chap.  272,  §  24.)  —That  A.  B.,  during  the  three 
months  next  before  the  finding  of  this  indictment,  did  keep  at  said  (Boston)  a 
certain  house  of  ill  fame,  resorted  to  for  purposes  of  prostitution  and  lewdness. 

House  of  ill  fame  — ■  Nuisance.  (Under  Chap.  139,  §  15.)  —  That  A.  B.,  during 
the  three  months  next  before  the  finding  of  this  indictment,  at  said  (Boston), 
did  keep  and  maintain  a  certain  tenement  used  for  prostitution,  assignation 
and  lewdness  {or  in  which  acts  of  prostitution,  assignation  and  lewdness  occurred), 
to  the  common  nuisance  of  all  the  people. 

Idle  and  disorderly  person.  (Under  Chap.  272,  §  53.)  —  That  A.  B.,  during 
the  three  months  next  before  the  making  of  this  complaint,  was  an  idle  and 
disorderly  person,  and  neglected  all  lawful  business  and  habitually  misspent 
his  time  by  frequenting  houses  of  ill  fame,  gaming  houses  or  tippling  shops. 

Incest.  (Under  Chap.  272,  §  17.)  —That  A.  B.,  being  the  father  of  C.  D. 
{or  state  such  relationship  as  will  show  the  parties  to  be  within  the  degree  of 
consanguinity  viithin  which  marriages  are  proliibited  or  declared  by  law  to  be 
incestuous  and  void),  did  have  carnal  knowledge  of  the  body  of  said  C.  D. 

(A.  B.  being  married  to  another  woman  than  said  C.  D.,  if  such  be  the  fact,  and 
it  be  desired  to  cover  adultery.) 

Larceny.  (Under  Chap.  266,  §  30.)  —  (1)  That  A.  B.  did  steal  one  horse  of 
the  value  of  more  {or  less,  as  the  case  may  be)  than  one  hundred  dollars,  of  the 
property  of  C.  D. 

(2)  That  A.  B.  did  steal  six  cows,  each  of  the  value  of  twenty  dollars,  of  the 
property  of  C.  D. 

Larceny  from  a  conveyance.  (Under  Chap.  266,  §  30.)  —  That  A.  B.  did  steal 
from  a  certain  conveyance,  to  wit,  the  wagon  of  one  C.  D.,  one  book  of  the  value, 
etc.,  of  the  property  of  C.  D.,  the  said  C.  D.  being  a  common  carrier  {or  a  person 
carrjing  on  the  express  business),  and  said  conveyance  being  used  by  the  said 
C.  D.  in  said  business. 

Larceny  from  really.  (Under  Chap.  266,  §  44.)  —  That  A.  B.,  by  a  trespass, 
with  intent  to  steal,  did  take  and  carry  away  from  the  realty,  to  wit,  from  the 
building  of  C.  D.,  in  said  (Boston),  ten  pounds  of  lead  pipe,  each  of  the  value  of 
(etc.),  of  the  property  of  C.  D.,  against  his  will,  the  said  lead  pipe  being  annexed 
to  and  a  part  of  said  building. 

Larceny  in  building.  (Under  Chap.  266,  §  20.)  —  That  A.  B.  did  steal  (one 
coat  of  the  value  of  more  than  or  less  than  ),  of  the 

property  of  X.,  in  a  certain  building  {or  ship  or  vessel  or  railroad  car)  of  the  said 
X.,  situated  in  said  (Boston). 


Chap.  277.]        indictments  and  proceedings  before  trial.  2827 

Larceny  of  beast  or  bird.     (Under  Chap.  266,  §  46.)  —  That  A.  B.  did  steal  a  Larceny  of 
certain  domesticated  animal  (or  bird  which  was  ordinarily  kept  in  confinement),  '''''^'  °'^  '^''■''■ 
which  was  the  property  of  C.  D. 

Lewd  and  lascivious  cohabitation.     (Under  Chap.  272,  §  16.)  —  That  A.  B.  and  Lewd  and  las- 
C.  D.,  not  being  married  to  each  other,  did  during  one  month  ne.xt  before  the  tatlon*  cohabi- 
finding  of  this  indictment  (or  such  time  as  the  evidence  requires),  lewdly  and 
lasci\'iously  associate  and  cohabit  together. 

Lewdness.     (Under  Chap.  272,  §  53.)  — That  A.  B.,  during  the  three  months  Lewdness, 
next  before  the  finding  of  this  indictment,  was  a  lewd,  wanton  and  lascivious 
person  in  speech  and  beha^^or. 

Liquor.     (Under  Chap.  138,  §  2.)  —  That  A.  B.  did  expose  and  keep  for  sale  Liquor, 
intoxicating  liquors,  ■nith  intent  unkA\'fullv  to  sell  the  same. 

Liquor  —  Sale.  (Under  Chap.  138,  §  2.)— That  A.  B.  unlawfully  did  sell 
intoxicating  Uquors  to  C.  D. 

Liquor  —  Nuisance.  (Under  Chap.  139,  §  15.) — That  A.  B.,  during  the 
three  months  next  before  the  finding  of  this  indictment,  without  legal  authority, 
did  keep  and  maintain  a  certain  tenement  in  said  (Boston),  by  him  used  for  the 
illegal  sale  and  illegal  keeping  for  sale  of  intoxicating  liquor,  to  the  common 
nuisance  of  all  the  people. 

Lord's  Day.     (Under  Chap.  136,  §  5.)  —  That  A.  B.,  on  the  day  of  Lord's  Day. 

,  in  the  year  of  our  Lord  one  thousand,  etc.,  that  day  being  the  Lord's 
Day,  did  keep  open  his  shop  in  said  (Boston),  for  the  purpose  of  doing  business 
therein  (or  did  labor  or  business  or  work),  the  same  not  being  a  work  of  neces- 
sity or  charity. 

Lottery.     (Under  Chap.  271,  §  7.)  —  (1)  That  A.  B.  did  set  up  and  promote  a    Lottery, 
lottery  for  money. 

(2)  That  A.  B.  was  concerned  in  the  setting  up  (or  managing  or  drawing)  of  a 
certain  lottery  for  money. 

(3)  That  A.  B.  did  dispose  of  a  certain  horse  of  the  value  of  ten  doUars  to 
C.  D.,  by  way  of  a  lottery. 

(4)  That  A.  B.,  under  the  pretext  of  the  sale  of  certain  property,  to  wit:  (state 
the  property)  to  C.  D.,  did  dispose  of  to  said  C.  D.  certain  other  personal  property, 
to  wit:  (state  the  property),  with  intent  of  said  A.  B.  to  make  the  said  disposal  of 
said  (property)  dependent  upon  a  chance  by  lot,  and  that  such  chance  was  made 
an  additional  inducement  to  the  disposal  and  sale  of  said  (property). 

Maiming,  etc.  (Under  Chap.  265,  §  14.)  — That  A.  B.  did  assault  C.  D.,  and.  Maiming,  etc. 
with  malicious  intent  to  maim  and  disfigure  said  C.  D.,  did  cut  out  his  tongue. 

Malicious  injury.     (Under  Chap.  266,  §  127.)  — That  A.  B.  did  wilfully  and  Malicious 
mahciously  injure  (or  destroy)  certain  personal  property  (name  it  and  allege  value)  "''"^• 
of  C.  D. 

Malicious  injury  to  real  property.  (Under  Chap.  266,  §  104.)  —  That  A.  B.  did 
wilfully  (or  maliciously)  destroy  (or  deface  or  mar)  a  certain  building  of  C.  D. 
in  said  (Boston). 

Manslaughter.  (Under  Chap.  265,  §  13.)  — That  A.  B.  did  assault  and  beat  Manslaughter. 
C.  D.,  and  by  such  assault  and  beating  did  kill  C.  D. 

Mandaiighter  by  negligence.  —  That  A.  B.,  being  under  the  legal  duty,  and  Manslaughter 
being  of  sufficient  ability  to  pro\ide  C.  D.,  who  was  his  wife,  with  sufficient  food  ^^  negligence, 
and  drink  for  her  sustenance  and  maintenance,  did  neglect  and  refuse  so  to  do; 
by  reason  whereof  said  CD.,  being  unable  to  provide  sufficient  food  and  drink 
for  herself,  became  and  was  mortally  sick  and  died. 

Murder.  (Under  Chap.  265,  §  L)  —  That  A.  B.  did  assault  and  beat  C.  D.,  Murder.  _ 
with  intent  to  murder  him  (by  striking  him  over  the  head  with  an  axe),  and  by  202  Mass!  121! 
such  assault  and  beating  did  (kiU  and)  murder  C.  D.  (and  the  jurors  further  207  Mass.  251;. 
say  that  the  defendant  is  guilty  of  murder  in  the  second  degree  and  not  in  the  ^^^'  *"' 

first  degree).     This  may  be  added  if  murder  in  the  first  degree  is  not  alleged. 

Neglect  of  wife  or  minor  child.     (Under  Chap.  273,  §  1.)  — ■  That  A.  B.,  during  Neglect  of  wife 
the  three  months  next  before  the  making  of  this  complaint,  being  of  sufficient  '"'  "'"">'■  '^'"'d. 
ability,  did  unreasonably  neglect  to  provide  for  the  support  of  C.  D.,  his  lawful 
wiie  (and  E.  D.,  his  minor  child). 

Obtaining  signature  by  false  pretences.  (Under  Chap.  266,  §  31.)  — That  A.  B.  Obtaining 
designedly  and  with  intent  to  defraud  did  falsely  pretend  to  C.  D.  that,  etc.,  and  wse" pretences, 
bj'  means  of  said  false  pretences,  which  said  C.  D.  believed  and  relied  upon,  did 
obtain  the  signature  of  said  C.  D.  to  a  certain  written  instrument,  the  false  making 
whereof  would  be  punishable  as  forgery,  to  wit,  a  certain  promissory  note  (de- 
scribe as  in  forgery);  that  the  pretences  so  made  to  C.  D.  were  false  and  were 
known  to  be  false  by  the  said  A.  B.  at  the  time  when  he  so  made  them. 


2828 


INDICTMENTS  AND   PROCEEDINGS  BEFORE  TRIAL.         [Ch.\P.   277. 


Open  and  gross 
lewdness. 

Perjury. 


Polygamy. 


Rape. 


Receiving 
stolen  prop- 
erty. 


Rescue. 


Robbery. 


Sodomy,  etc. 


Stubborn 
child. 


Threats  to 
extort. 


Unlawful  ap- 
propriation. 


Unnatural  act. 


Uttering. 

199  Mass.  S83. 


Vagabond. 
207  Mass.  572. 


Vagrant. 


Open  and  gross  lewdness.  (Under  Chap.  272,  §  16.)  —  That  A.  B.  wa.s  guilty 
of  open  and  gro.ss  lewdness  and  lasci\aous  beha\aor  in  the  presence  of  C.  D. 

Perjury.  (Under  Chap.  268,  §  1.)  — That  in  a  proceeding  in  the_  course  of 
justice  before  the  (set  forth  the  tribunal),  on  an  issue  wathin  the  jurisdiction  of  said 
court  duly  joined,  and  tried  before  a  jury  of  the  county  between  X.  as  plaintiff 
and  Y.  as  defendant,  A.  B.  was  lav\-fully  sworn  as  a  witness. 

Wliereupon  it  became  and  was  material  to  said  issue  whether  (say  what) ,  and 
to  this  the  said  A.  B.  did  -ndlfully  and  corruptly  testify  and  say  in  substance 
and  effect  that  (say  xchat) ;  all  his  said  testimony  as  above  set  forth  being  false, 
as  he  well  knew. 

Polygamy.  (Under  Chap.  272,  §  15.)  —  (1)  That  A.  B.  unlawfully  married 
C.  D.,  the  said  A.  B.  having  at  the  time  he  so  unlawfully  married  a  lawful  wife 
living  other  than  said  C.  D. 

(2)  That  A.  B.,  ha\-ing  a  la\^'ful  vnle  li\'ing,  to  wit:  X.,  did  at  (state  place) 
unlawfully  marry  and  have  for  his  wife  one  C.  D.,  after  which  the  said  A.  B.  did, 
while  said  X.  was  still  living,  on,  at,  etc.,  unlawfully  cohabit  and  continue  to 
cohabit  in  (Boston)  with  the  said  C.  D. 

Rape.  (Under  Chap.  265,  §§  22,  23.)  —  (1)  That  A.  B.  did  assault  C.  D., 
with  the  intent  to  commit  rape  upon  her;  and  her,  the  said  C.  D.,  did  commit 
rape  upon. 

(2)  That  A.  B.,  in  and  upon  C.  D.,  a  female  cliild  under  the  age  of  sixteen 
years,  did  make  an  as.sault  with  the  intent  her,  the  said  C.  D.,  unlawfully  and 
carnally  to  know  and  abuse;  and  her,  the  said  C.  D.,  did  unlawfully  and  carnally 
know  and  abuse. 

Receinng  stolen  property.  (Under  Chap.  266,  §  60.)  —  That  A.  B.,  one  watch 
of  the  value  of  dollars,  the  property  of  one  CD.,  then  lately  before 

stolen,  did  buy,  receive,  and  aid  in  the  concealment  of,  the  said  A.  B.  weU  knowing 
the  said  property  to  have  been  stolen  as  aforesaid. 

Rescjie.  (Under  Chap.  268,  §  15.)  —  That  A.  B.  did  forcibly  rescue  and  take 
out  of  the  lawful  custody  of  E.  F.  one  C.  D.,  the  said  C.  D.  being  a  prisoner 
arrested  by  and  held  in  the  la\\'ful  custody  of  E.  F.,  upon  the  charge  of  the  crime 
of  (larceny),  the  said  E.  F.  being  a  police  officer  of  (said  city),  duly  authorized 
to  arrest  and  hold  in  custody  the  said  C.  D.  upon  the  charge  aforesaid. 

Robbery.  (Under  Chap.  265,  §  19.)  —  That  A.  B.  did  assault  C.  D.  with  intent 
to  rob  him,  and  thereby  did  rob  and  steal  from  the  person  of  said  C.  D.  (mention 
the  property)  of  the  property  of  said  C.  D. 

Sodomy,  etc.  (Under  Chap.  272,  §  34.)  —  That  A.  B.  did  commit  the  abom- 
inable and  detestable  crime  against  nature  with  a  (state  the  person  or  beast). 

Stubborn  child.  (Under  Chap.  272,  §  53.)  —  That  A.  B.,  a  minor,  during  the 
three  months  next  before  the  making  of  this  complaint,  was  a  stubborn  child, 
and  stubbornly  refused  to  submit  to  the  la^v'ful  and  reasonable  commands  of 
C.  D.,  whose  commands  said  A.  B.  was  bound  to  obev. 

Threats  to  extort.  (Under  Chap.  265,  §  25.)— That  A.  B.  did  verbally  (or 
by  a  WTitten  or  printed  communication)  mahciously  threaten  one  C.  D.,  to 
accuse  him  of  the  crime  of  (name  it),  with  the  intent  thereby  to  extort  money 
from  the  said  C.  D. 

Unlawful  appropriation.  (Under  Chap.  266,  §  63.)  —  That  A.  B.  did  wilfully, 
miscliievously  and  without  right  take,  drive  and  use  a  certain  horse,  the  property 
of  one  C.  D.,  without  the  consent  of  the  said  owner  of  said  horse,  or  any  person 
having  the  legal  custody,  care  or  control  of  the  same. 

tfnnatwal  act.  (Under  Chap.  272,  §  35.)  —  That  A.  B.  did  commit  an  un- 
natural and  lasci\'ious  act  with  one  C.  D. 

Uttering.  (Under  Chap.  267,  §  5.)  —  That  A.  B.,  wth  intent  to  injure  and 
defraud,  did  utter  and  pubhsh  as  true  a  certain  forged  instrument  (describe  as 
in  forgery),  well  knowing  the  same  to  be  forged. 

Vagabond.  (Under  Chap.  272,  §§  53,  68.)— That  A.  B.,  for  three  months 
next  before  the  making  of  this  complaint,  was  a  vagabond,  and  wandered  about 
from  place  to  place,  neglecting  all  lawful  calHng  and  emploj-ment,  and  not  having 
any  home  or  means  of  support. 

Vagrant.  (Under  Chap.  272,  §  66.)— That  A.  B.,  during  the  three  months 
next  before  the  making  of  this  complaint,  was  an  idle  person  who,  not  having 
visible  means  of  support,  hved  -without  lawful  emplojTuent  (and  wandered  abroad 
and  ^^.sited  tippling  shops,  and  lodged  in  outhouses,  and  in  the  open  air,  and  chd  not 
give  a  good  account  of  himself,  and  wandered  abroad  and  begged,  and  went  about 
from  door  to  door  and  placed  himself  in  public  places  to  beg  and  to  receive  alms). 

The  complaint  may  stop  at  the  xcord  "employment'',  or  such  part  of  the  matter 
in  parentheses  may  be  added  as  the  case  requires. 


Ch.\P.   278.]  TRIALS  AND  PROCEEDINGS  BEFORE  JUDGMENT. 


2829 


{Under  Chapter  94,  Sections  197-213.) 

Common  nuisance.  —  That  A.  B.,  during  the  three  months  next  before  the 
finding  of  this  indictment,  at  said  (Boston),  did  keep  and  maintain  a  certain 
tenement  resorted  to  by  habitual  users  of  narcotic  drugs  for  the  purpose  of  using 
narcotic  drugs. 

Unlaicfid  possession.  —  That  A.  B.  did  have  in  his  possession  unla\\'fully 
certain  narcotic  drugs,  to  wit,  morphine  {or  cocaine  or  heroin  or  the  name  of 
the  drug  as  it  is  commonly  knoum). 

Unlaivfid  possession  irith  intent  to  sell.  —  That  A.  B.  did  have  in  his  possession, 
with  intent  unlawfully  to  sell  and  deliver,  a  certain  narcotic  drug  (naming  the  drug) . 

Conspiracy.  —  That  A.  B.  and  C.  D.  conspired  together  to  engage  in  unlawful 
traffic  in  narcotic  drugs. 

Sale  and  delivery.  —  That  A.  B.  did  unlawfully  sell  {or  give  away  or  deliver) 
a  narcotic  drug,  to  wit,  morphine  {or  name  drug  is  commonly  known  by). 

Unlawful  prescribing  and  delivery,  etc.,  by  physician,  etc.  —  That  A.  B.,  a 
physician  {or  pharmacist  or  dentist  or  veterinarian,  etc.),  did  unlawfully  prescribe 
{or  sell,  give  away,  furnish  or  deliver)  a  certain  narcotic  drug,  to  wit,  {naming  it). 

Possession  of  hypodermic  inMrument.  ■ —  That  A.  B.  did  have  in  his  possession 
unla\vfully  a  hypodermic  syringe  and  needle. 

Sale  and  delivery  of  hypodermic  instrument.  —  That  A.  B.  did  unlawfully  sell 
(or  deliver)  a  hypodermic  syringe  {or  needle) . 

False  making  of  prescription.  —  That  A.  B.  did  falsely  make  {or  alter)  a  pre- 
scription for  a  narcotic  drug. 

Uttering  a  false  prescription.  —  That  A.  B.  did  utter  and  publish  as  true  a  cer- 
tain false  prescription  for  a  narcotic  drug,  well  knowing  the  same  to  be  falsely 
made  {or  altered). 

Misrepresentation.  —  That  A.  B.  did  falsely  represent  to  C.  D.  (a  physician, 
or  dentist,  veterinarian,  pharmacist,  etc.),ioT  the  purpose  of  obtaining  a  narcotic 
drug,  that  {state  the  substance  of  the  statements  claimed  to  be  representations) . 


Common 
imisance. 
1917,  275,  §  IS. 


Unlawful 
possession. 


Unlawful 
possession  with 
intent  to  sell. 
Conspiracy. 

Sale  and 
delivery. 

Unlawful  pre- 
scribing and 
delivery,  etc. 

Possession  of 
hypodermic 
instrument. 
Sale  and  deliv- 
ery of  hypoder- 
mic instrument. 
False  making 
of  prescription. 
Uttering  a 
false  prescrip- 
tion. 

Misrepresenta- 
tion. 


REFERENCE. 
Definition  of  "narcotic  drug",  etc.,  Chap.  94,  §  197. 


CHAPTER    278. 

TRIALS  AND  PROCEEDINGS  BEFORE  JUDGMENT. 


Sect. 

1.  Trial  list  of  criminal  cases. 

2.  Issues  of  fact,  how  tried. 

3.  Opinions  disqualifying  juror  in  capital 

case. 

4.  Oath  of  jurors. 

5.  Affirmation  of  jurors. 

6.  Presence  of  defendant  at  trial,  etc. 

7.  Burden  on  defendant  to  prove  license. 
S.  Justification  in  cases  of  libel. 

9.  Proof  of  ownership  of  property. 

10.  Night  time  defined. 

11.  Jury  to  decide  law  and  fact. 

12.  Proceedings  on   conviction   of  part  of 

crime  charged. 

13.  Commitment   of  person   acquitted   by 

reason  of  insanity. 

14.  Person  acquitted, etc.,  not  liable  for  fees. 

15.  Discontinuance    of   prosecution    under 

by-law. 

16.  Counsel  lor  inmates  of  reform  school. 

17.  Objection  to  formal  defects,  when  to  be 

taken.  ^ 


24 


25 


Sect. 

18.  Appeals  in  criminal  cases. 

19.  Recognizance  of  witnesses. 

20.  Transmission  of  papers. 

21.  Copies  to  be  transmitted. 

22.  Statement  of  fees. 

23.  Certain  acts  not  to  be  used  as  evidence 

in  trials  of  criminal  cases. 
If  appeal  not  entered,  appellant  to  be 

sentenced. 
Withdrawal    of    appeals    in     criminal 

eases. 

26.  Fees  allowed  to  jailer. 

27.  Decisions  on  plea  in  abatement  final. 

28.  Appeal  to  supreme  judicial  court. 

29.  New  trial. 

30.  Report. 

31.  Exceptions. 

32.  Affirmance    of    judgment    upon    non- 

entry  of  appeal. 

33.  Transmission  of  papers. 

34.  Motions  in  arrest  of  judgment. 

35.  Trial  of  female  defendants. 


2830 


TRLiLS  AND  PROCEEDINGS  BEFORE  JUDGMENT.     [CH-^P.  278. 


Trial  list  of 
criminal  cases. 
1870.  290. 
P.  S.  214. 
§§1.2. 
1884,  193. 
1889,  432. 
R.  L.  219,  §  1. 


Section  1 .  At  each  session  of  the  superior  court  for  criminal  business, 
the  district  attorney,  before  trials  begin,  shall  make  and  deposit  with  the 
clerk,  for  the  inspection  of  parties,  a  list  of  all  cases  to  be  tried  at  that 
session,  and  the  cases  shall  be  tried  in  the  order  of  such  trial  list,  unless 
otherwise  ordered  by  the  court  for  cause  shown.  Cases  may  be  added  to 
such  list  by  direction  of  the  court,  upon  motion  of  the  district  attorney 
or  of  the  defendant. 


Section  2.     Issues  of  fact  joined  upon  an  indictment  or  complaint 


Issues  of  fact, 
how  tried. 

as.  m'.W'.   shall,  in  the  superior  court,  be  tried  by  a  jury  drawn  and  returned  in  the 
p.  s.  214,  §  3.     manner  provided  for  the  trial  of  issues  of  fact  in  civil  causes. 

R.  L.  219,  §  2.  12  Allen,  155. 


Opinions  dis- 
qualifying 
juror  in 
capital  case. 
R.  S.  137,  §  6. 


Section  3.    A  person  whose  opinions  are  such  as  to  preclude  him  from  1 

finding  a  defendant  guilty  of  a  crime  punishable  with  death  shall  not  2 

serve  as  a  juror  on  the  trial  of  an  indictment  for  such  crime.  3 

G.  S.  172,  §  5.  P.  S.  214,  §  7.  R.  L.  219,  §  3. 


Oath  of 
jurors. 

C.  L.  167.  §  3. 
1692-3,  35. 
1S07,  140,  §  14. 
R.  S.  137.  §  7. 
G.  S.  172,  §  6. 
P.  S.  214,  §  8. 
R.  L.  219,  §4. 


Section  4.     The  following  oath  shall  be  administered  to  the  jurors     1 
for  the  trial  of  all  criminal  cases  which  are  not  capital:  2 

You  shall  well  and  truly  try  the  issue  between  the  commonwealth  and  the 
defendant,  (or  the  defendants,  as  the  case  may  be,)  according  to  your  e\idence; 
so  help  you  God. 

The  following  oath  shall  be  administered  to  the  jurors  for  the  trial  of    3 
capital  cases:  4 

You  shall  well  and  truly  try,  and  true  deliverance  make,  between  the  com- 
monwealth and  the  prisoner  at  the  bar,  whom  you  shall  have  in  charge,  according 
to  your  evidence;  so  help  you  God. 

of^ju^ra!""  Section  5.     A  juror  who  is  conscientiously  scrupulous  of  taking  either     1 

R 's'  137,'  I "'  °^  t^^  oaths  above  prescribed  shall  be  allowed  to  affirm.  2 

G.  S.  172,  §  7.  p.  S.  214,  §  9.  R.  L.  219,  §  5. 


Presence  of 
defendant  at 
trial,  etc. 
R.  S.  137,  5  9. 
G.  S.  172,  §  8. 
P.  S.  214,  §  10. 
R.  L.  219,  §  6. 


Section  6.    A  person  indicted  for  a  felony  shall  not  be  tried  unless  he  1 

is  personally  present  during  the  trial;  but  if  indicted  for  a  misdemeanor,  2 

he  may,  at  his  request  and  by  leave  of  the  court,  be  tried  in  his  absence,  3 

if  represented  by  an  attorney  duly  authorized  for  that  purpose.  4 

121  Mass.  371.  163  Mass.  458.  165  Mass.  133. 


Burden  on  de- 
fendant to 
prove  license. 
1844,  102. 
1859,  160. 
G.  S.  172, 
1864,  121. 


10. 


Section  7.     A  defendant  in  a  criminal  prosecution,  relying  for  his  1 

justification  upon  a  license,  appointment,  admission  to  practice  as  an  2 

attorney  at  law,  or  authority,  shall  prove  the  same;  and,  until  so  proved,  3 

the  presumption  shall  be  that  he  is  not  so  authorized.  4 


p.  S.  214.  §  12. 
R.  L.  219,  §  7. 
1909.  49. 
2  Allen,  292. 
100  Mass.  204. 


108  Mass.  292. 

110  Mass.  107,  357,414. 

115  Mass.  139. 

119  Mass.  206. 

122  Mass.  8,  36. 


133  Mass.  574. 
138  Mass.  490,  511. 

141  Mass.  420. 

142  Mass.  533. 
230  Mass.  2SI. 


Jxistification  in 
cases  of  libel. 
1826,  107,  I  1. 
R.  S.  133.  I  6. 
1855,  396. 
G.  S.  129.  §  77; 
172,  §  11. 


Section  8.     The  defendant  in  a  prosecution  for  wTiting  or  publishing  1 

a  libel  may  introduce  in  evidence  the  truth  of  the  matter  contained  in  2 

the  publication  charged  as  libellous,  and  the  truth  shall  be  a  justification,  3 

unless  actual  malice  is  proved.  p.  s.  i67,  §  so;  214,  §  13.  4 


R.  L.  219,  §  8. 
3  Pick.  304. 


9  Met.  410. 
124  Mass.  338. 


136  Mass.  441. 
151  Mass.  127. 


ownersWp  of  Section  9.     In  the  prosecution  of  crimes  which  relate  to  or  affect    1 

R.°i'^'i33  §  11  ^^^^  °'"  personal  estate,  it  shall  be  sufficient,  and  shall  not  be  a  variance,    2 


Chap.  278.]  trl^ls  and  proceedings  before  judgment.  2831 

3  if  it  is  proved  on  the  trial  that,  at  the  time  when  the  crime  was  com-  o,  s.  172.  §  12. 

4  mitted,  either  the  actual  or  constructive  possession  or  the  general  or  r.  L.^ifg.Vo-' 

5  special  property  in  the  whole  or  any  part  of  such  real  or  personal  estate  g^oray ;  jol.' 

6  was  in  the  person  or  community  alleged  to  be  the  owner  thereof.  1°  ^^'^y-  *''^- 

5  Allen,  517.  110  Mass.  503.  164  Mass.  587. 

11  Allen,  110.  114  Ahiss.  272,  299.  172  Mass.  187. 

103  Mass.  423,  435.  122  Mass.  454.  181  Mass.  424. 

104  Mass.  552.  124  Mass.  449.  187  Mass.  581. 
108  Mass.  466,  469. 

1  Section  10.    If  a  crime  is  alleged  to  have  been  committed  in  the  night  ^'f''* j*™" 

2  time,  night  time  shall  be  deemed  the  time  between  one  hour  after  sunset  i847, 13. 

•  •  C    S   172   5  13 

3  on  one  day  and  one  hour  before  sunrise  on  the  next  day;  and  the  time  of  p.s.'2i4,'§  1.5'.' 

4  sunset  and  sunrise  shall  be  ascertained  according  to  mean  time  in  the  ^cush.^ssl. '°' 

5  place  where  the  crime  was  committed. 

1  Section  11.     The  jury  shall  try,  according  to  established  forms  and  fa^^andllc?^ 

2  principles  of  law,  all  criminal  causes  committed  to  them,  and,  after  having  ^sot.  139,  §  15. 

3  received  the  instructions  of  the  court,  shall  decide,  in  their  discretion,  g.  s!  172'.  §  15. 

P    ^    21 4    S  1  7 

4  by  a  general  verdict,  both  the  fact  and  the  law  involved  in  the  issue,  or  r.l.  219,  §  13. 

5  they  may,  at  their  election,  find  a  special  verdict.    The  court  shall  super-  20  pick'  toe. 

6  intend  the  course  of  the  trials,  decide  upon  the  admission  and  rejection  6°Gray,'  ill.' 

7  of  evidence,  upon  all  questions  of  law  raised  during  the  trials  and  upon  all  ioo"M"as^''fiG 

8  collateral  and  incidental  proceedings,  and  shall  charge  the  jury.  us  Mass.  37. 

125  Mass.  203.  132  Mass.  8.  147  Mass.  423,  576.  149  Mass.  68. 


1  Section  12.     If  a  person  indicted  for  a  felony  is  acquitted  by  the  Proceedings 

2  verdict  of  part  of  the  crime  charged,  and  is  convicted  of  the  residue,  such  oFpanof  °° 

3  verdict  may  be  received  and  recorded  by  the  court,  and  thereupon  the  5m!66,Tii.' 

4  defendant  shall  be  adjudged  guilty  of  the  crime,  if  any,  which  appears  r°|' ffv^^n 

5  to  the  court  to  be  substantially  charged  by  the  residue  of  the  indictment,  p■|■2\?'s^8^■ 

6  and  shall  be  sentenced  and  punished  accordingly. 

R.  L.  219,  §  14.  2  Met.  193.  97  Mass.  59.  142  Mass.  454. 

19  Pick.  479.  10  Gray,  11.  109  Mass.  349.  162  Mass.  466,  495. 

1  Met.  258.  2  Allen,  163.  115  Mass.  150.  230  Mass.  567. 

1  Section  13.     If  a  person  charged  with  crime  other  than  murder  or  commitment 

2  manslaughter  is  acquitted  by  the  jury  by  reason  of  insanity,  the  jury  acqSttedby 

3  shall  state  that  fact  to  the  court,  which,  if  satisfied  that  he  is  insane,  fnsl^ty.' 

4  may,  under  such  limitations  as  it  deems  proper,  order  him  committed  to  If 'f.:!*' 

5  a  state  hospital,  except  the  Bridgewater  state  hospital;  but  such  person,  i834, 1'so,  is 

6  if  a  male,  or  any  person  coming  within  the  pro\asions  of  section  one  hun-  g'.  s.  m,  \  li. 

7  dred  or  one  hundred  and  one  of  chapter  one  hundred  and  twenty-three,  p.  s.'2T4.'§  lo!' 

8  may  be  committed  or  removed  to  the  Bridgewater  state  hospital  if,  in  the  }|g|;  90^'  ^  ^' 

9  opinion  of  the  court,  he  has  been  a  criminal  or  is  of  vicious  tendency;  R.^Lfig,^*' 

10  and  if  he  has  been  held  on  a  charge  of  felony,  the  expense  of  his  support  f^oi^'sw  §  98 

1 1  in  any  such  hospital  or  in  any  state  charitable  institution  to  which  he  i3fi  Mass!  489. 

12  may  be  transferred  shall  be  paid  by  the  commonwealth.  322,52s. 

1  Section  14.    No  prisoner  or  person  under  recognizance,  acquitted  by  Person  ac- 

2  verdict  or  discharged  because  no  indictment  has  been  found  against  not  liable  for 

3  him,  or  for  want  of  prosecution,  shall  be  liable  for  any  costs  or  fees  or  for  r^s.  137,  §  13. 

4  any  charge  for  subsistence  while  he  was  in  custody. 

G.  S.  172,  §  18.  p.  S.  214,  §  22.  R.  L.  219,  §  18. 

1  Section  15.     In  a  prosecution  before  a  district  court  or  trial  justice  Discontinu- 

2  under  the  by-laws,  ordinances,  orders,  rules  or  regulations  of  a  city  or  mtfonunTeT' 

3  town,  the  city  solicitor,  town  counsel  or  other  person  appointed  to  repre-  isss.^Vg,  §  2. 


2832 


TRIALS  AND   PROCEEDINGS  BEFORE  JUDGMENT.  [ClL^P.   278. 


G.  s.  172, 1 20.  sent  such  city  or  toT\Ti  may  enter  a  nolle  prosequi  or  do  anything  relative    4 
R.  L.^2i9,Vi9.  to  such  prosecution  which  may  be  done  by  the  district  attorney.  5 

1918,  257,  §  461.  1919,  5.  1920,  2. 


Counsel  for 
inmates  of 
reform  school. 
1877,  184. 
P.  S.  214,  §  24. 
R.  L.  219,  §  20. 


Section  16.     The  court  may  assign  counsel  to  an  inmate  of  any  1 

institution  for  the  reformation  of  juvenile  offenders  who  is  to  be  tried  2 

for  an  offence  alleged  to  have  been  committed  therein;   and  shall,  upon  3 

application,  order  the  superintendent  or  other  officer  of  such  institution  4 

to  produce  at  the  trial  such  inmates  thereof  as,  in  the  opinion  of  the  5 

counsel  for  the  defence,  certified  in  UTiting,  or  of  the  judge,  in  the  absence  6 

of  counsel,  are  material  'witnesses  for  the  defence;  and  such  officer  shall  7 

obey  the  order  and  provide  for  the  custody  and  safe  return  of  such  inmates.  8 


temai'd?fe?ts,       SECTION  17.     An  objection  to  a  complaint,  indictment  or  other  criminal  1 

taken '°  ^^       process  for  a  formal  defect  apparent  on  the  face  thereof  shall  be  taken  by  2 

1864, 250, 1 2     demurrer  or  by  motion  to  quash,  assigning  specifically  the  objections  3 

r'.  l.  219,  §  21.  relied  on,  before  a  judgment  has  been  rendered  by  a  district  court  or  a  4 

11  Aiiln,  2381     trial  justice,  or  before  a  jury  has  been  sworn  in  the  superior  com-t.  5 


1.3  Allen,  550,  554. 
98  Mass.  6. 
IDS  Mass.  173, 176. 
108  Mass.  441,457. 

110  Mass.  67,  103. 

111  Mass.  417,420. 
113  Mass.  10. 

116  Mass.  13. 

123  Mass.  251,  252. 


126  Mass.  235,  248,  472. 
129  Mass.  489. 
131  Mass.  584. 
133  Mass.  383,  571. 

135  Mass.  530,  552. 

136  Mass.  155. 

137  Mass.  560. 

138  Mass.  484. 


141  Mass.  420. 
143  Mass.  113,167, 

145  Mass.  403. 

146  Mass.  512. 

147  Mass.  29. 
154  Mass.  405. 
157  Mass.  386,  462. 
170  Mass.  228. 


467. 


Appeals  in 
criminal  cases. 
1783,  51,  §  3. 
1831,  70,  §  1. 
R.  S.  85, 
§  28;  87,  §  36; 
138,  §  1. 
1845,  166,  §  2. 
1849,  31. 
G.  8.  116,  §  32; 
173,  §U,  4. 
P.  S.  154,  §  39; 
155.  §§  58,61. 
1893,  396,  §  47. 
1894,431. 
1897,  490,  I  3. 
R.  L.  219,  §  22. 
1905,  319. 
1913,  652. 
6  Gray,  343. 
115  ^iass.  151. 
142  Mass.  457. 
145  Mass.  375. 
181  Mass.  15. 

205  Mass.  155. 

206  Mass.  417. 


Section  18.  ^^^loever  is  convicted  of  a  crime  before  a  district  court  1 
or  trial  justice  may  appeal  to  the  superior  court,  and  at  the  time  of  con-  2 
viction  shall  be  notified  of  his  right  to  take  such  appeal.  The  case  shall  3 
be  entered  in  the  superior  court  on  the  return  day  next  after  the  appeal  is  4 
taken,  and  the  appellant  shall  be  committed  to  abide  the  sentence  of  said  5 
court  until  he  recognizes  to  the  commonwealth,  in  such  sum  and  with  6 
such  surety  or  sureties  as  the  court  or  trial  justice  requires,  with  con-  7 
dition  to  appear  at  the  superior  court  on  said  return  day  and  at  any  8 
subsequent  time  to  which  the  case  may  be  continued,  if  not  pre\'iously  9 
surrendered  and  discharged,  and  so  from  time  to  time  until  the  final  10 
sentence,  order  or  decree  of  the  court  thereon,  and  to  abide  such  final  11 
sentence,  order  or  decree,  and  not  depart  without  leave,  and  in  the  mean-  12 
time  to  keep  the  peace  and  be  of  good  behavior.  In  cases  of  misdemeanor  13 
the  appellant  may,  in  the  discretion  of  the  court  or  trial  justice,  be  held  14 
on  his  own  recognizance.  The  appellant  shall  not  be  required  to  advance  15 
any  fees  upon  claiming  his  appeal  or  in  prosecuting  the  same.  16 


rf^witnrases!^        Section  19.     Upon  sucli  appeal,  said  courts  and  trial  justices  shall  1 

G  ^s"  173  5  2    ^^'^'6  the  like  power  to  bind  witnesses  in  the  case  by  recognizances  as  they  2 

PS.  i54,'§ii;  have  by  chapter  two  hundred  and  seventy-six  when  a  prisoner  is  ad-  3 

1893, 396.  §  48.  mitted  to  bail  or  committed.  is94, 431.  r.  l.  219,  §  23.  4 


IrpT^f""  Section  20.  Upon  such  appeal,  the  clerk  of  the  district  court  shall 
G  i'  173'  1 1'  transmit  to  the  clerk  of  the  superior  court  a  copy  of  the  complaint  and  of 
^^i'lil'in  ^^^  record  of  con\'iction,  the  original  recognizances,  a  list  of  the  vrit- 
1893, 396,  §  49.  nesscs,  the  appearance  of  the  attorney  for  the  defendant,  if  any  is  entered, 
R.  l'.  219,  §  24.  and  a  statement  of  the  expenses;  and  no  other  papers  need  be  transmitted. 

1918,  257,  §  462.  97  Mass.  541.  117  Mass.  150. 

1919,5.  Ill  Mass.  422.  140  Mass.  481. 

1920, 2.  '  113  Mass.  203.  147  Mass.  578. 

14  Gray,  398,  399. 


ClL\P.   278.]  TRIALS   AND   PROCEEDINGS  BEFORE   JUDGMENT.  2833 

1  Section  21.     Upon  such  appeal,  the  trial  justice  shall  make  a  copy  Copies  to  be 

2  of  the  conviction  and  other  proceedings  in  the  case,  and  transmit  them,  r^s^°i3s%'2. 

3  with  the  recognizance,  the  appearance  of  the  attorney  for  the  defendant,  p.  liVs^'j  eo. 

4  if  any  is  entered,  and  a  statement  of  the  expenses,  to  the  clerk  of  the  ^^£'  ^|°'  |  J^- 

5  superior  court.  isis,  257,  §  463.  1919, 5.  1920, 2. 

2  Met.  18.  14  Gray,  398,  399.  115  Mass.  139, 146.  131  Mass.  417. 

S  Gray,  482.  97  Mass.  541.  117  Mass.  150.  147  Mass.  639,  578. 

11  Gray,  313.  Ill  Mass.  428.  12C  Mass.  267.  155-  Mass.  296. 

1  Section  22.     Upon  such  appeal,  the  copies  and  records  sent  to  the  statement 

2  superior  court  shall  contain  the  details  of  all  fees  and  expenses  allowed  i89or440,  §  lo. 

3  or  paid  in  the  district  court  or  before  the  trial  justice.  r^^l.  Ill',  §  26. 

1  Section  23.     At  the  trial  of  a  criminal  case  in  the  superior  court,  Certain  acts 

2  upon  indictment  or  appeal,  the  fact  that  the  defendant  did  not  testify  a3e\?dence^n 

3  at  the  preliminary  hearing  or  trial  in  the  lower  court,  or  that  at  such  'naVcase"™" 

4  hearing  or  trial  he  waived  examination  or  did  not  offer  any  evidence  in  las^fa^ss'.  20. 

5  his  own  defence,  shall  not  be  used  as  evidence  against  him,  nor  be  re- 

6  ferred  to  or  commented  upon  by  the  prosecuting  officer. 

1  Section  24.     If  the  appellant  fails  to  enter  and  prosecute  his  appeal,  if  appeal  not 

2  he  shall  be  defaulted  on  his  recognizance  and  the  superior  court  may  lantto'be 

3  impose  sentence  upon  him  for  the  crime  of  which  he  was  convicted,  as  i7S3, 51,  §  3. 

XX  '  .j^      Q      1  QQ      &     1 

4  if  he  had  been  convicted  in  said  court,  and,  if  he  is  not  then  in  custody,  g!  s!  173!  §  s^ 

5  may  issue  process  to  bring  him  into  coiu-t  to  receive  sentence.  i5|§'g2'. ^  ^^' 

1S93.  396,  §  50.  R.  L.  219,  §  27.  109  Mass.  361.  210  Mass.  445. 

1894,  431.  108  Mass.  5.  160  Mass.  354. 

1  Section  25.    The  appellant  may,  at  any  time  before  the  next  sitting  withdrawal 

2  of  the  superior  court  for  criminal  business,  come  personally  before  the  crimmafcases. 

3  court  or  trial  justice  from  whose  judgment  the  appeal  was  taken  and  If^i*'!^' 

4  withdraw  his  appeal.     If  the  appellant  has  been  committed,  the  officer  Tify^'J}^'- 

5  in  charge  of  the  jail,  within  forty-eight  hours  after  his  commitment,  1893.396,' 

6  shall  notify  him  of  his  right  to  withdraw  his  appeal  and  shall  furnish  i894,'43i',  §  i. 

7  him  with  a  blank  form  of  withdrawal,  which,  if  signed  by  him,  shall  be  §§  28,^29.' 

8  witnessed  by  said  officer ;  thereupon,  or  if  prior  to  said  notice  the  appellant  H'^i  III'. 

9  notifies  the  said  officer  of  his  desire  to  withdraw  his  appeal,  the  said 

10  officer  shall  forward  the  defendant,  with  the  signed  form  of  withdrawal, 

11  to  the  court  or  trial  justice  before  whom  the  appeal  was  taken.    In  such 

12  case  the  court  or  trial  justice  may  order  the  appellant  to  comply  with  the 

13  sentence  appealed  from,  in  the  same  manner  as  if  it  were  then  first  im- 

14  posed,  or  may  revise  or  revoke  the  same  if  satisfied  that  cause  for  such 

15  revision  or  revocation  exists;    provided,  that  the  court  or  trial  justice 

16  shall  not  increase  the  sentence  as  first  imposed,  and  if  sureties  had  rec- 

17  ognized  with  the  appellant  to  prosecute  his  appeal  they  shall  be  dis- 

18  charged.    If  the  copy  of  the  record  of  conviction  has  been  transmitted 

19  to  the  superior  court,  the  court  or  trial  justice  shall  notify  the  clerk  of 

20  the  superior  court  of  the  withdrawal  of  the  appeal,  who  shall  thereupon 

21  make  a  memorandum  thereof  upon  the  record  of  the  superior  court. 

1  Section  26.     In  such  case,  compensation  shall  be  allowed  and  paid  Feesaiiowed 

2  by  the  town  where  the  crime  was  committed  to  the  jailer  for  his  expenses  is74!33.  §  3. 

3  in  the  conveyance  and  custody  of  the  appellant,  at  the  same  rate  as  is  155.  /Is!    '"' 

4  allowed  to  officers  serving  a  mittimus.    If  the  appeal  was  from  a  sentence  44o|''§^2.*'  ^  ^' 

5  to  pay  a  fine,  the  fees  of  the  jailer  shall  be  paid  by  the  appellant  if,  after  ^H'  35^'  |  jj 

6  the  appeal  is  withdrawn,  he  pays  the  fine.        i894, 431.         r.  l.  219,  §  30. 


2834  "trl-vls  and  proceedings  before  judgment.        [Chap.  278. 

5ea1n°abatl-        SECTION  27.     Dccisions  of  the  Superior  court  upon  questions  raised     1 
1859*  igl'  5  27    upon  a  plea  in  abatement  to  an  indictment  or  complaint  shall  be  final.        2 

G.  S.  115,  §  7.  ISSO,  118.  p.  S.  153,  §  8.  R.  L.  219,  §  31. 

fup'Jl^e  judi-  Section  28.     A  defendant  aggrieved  by  a  judgment  of  the  superior  1 

isJo'Tg^'s  4  court  founded  upon  matter  of  law  apparent  upon  the  record  in  any  crim-  2 

1S32;  130  §  3.  inal  proceeding,  except  a  judgment  upon  a  plea  in  abatement,  may  appeal  3 

138,  §  5.'       '  therefrom  to  the  supreme  judicial  court.  4 

1859,  196,  §  26.  R.  L.  219,  §  32.  160  Mass.  307. 

G.  S.  114,  §  10.  110  Mass.  188.  208  Mass.  162. 

P.  S.  152,  §  10.  156  Mass.  61,  348.  210  Mass.  360. 

Section  29.     The  superior  court  may,  at  the  sitting  in  which  an  in-  1 

dictment  is  tried,  or  within  one  year  thereafter,  upon  motion  in  WTiting  2 

of  the  defendant,  grant  a  new  trial  for  any  cause  for  which  by  law  a  new  3 

trial  may  be  granted  or  if  it  appears  to  the  court  that  justice  has  not  4 

been  done,  and  upon  such  terms  or  conditions  as  the  court  shall  order.  5 

R.  L.  219,  §  33.  Ill  Mass.  439.  183  Mass.  199. 

1  Met.  428.  123  Mass.  418. 

Section  30.     If,  upon  the  trial  of  a  person  convicted  in  the  superior  1 

court,  a  question  of  law  arises,  which,  in  the  opinion  of  the  presiding  2 

justice,  is  so  important  or  doubtful  as  to  require  the  decision  of  the  3 

supreme  judicial  court,  he  shall,  if  the  defendant  desires  or  consents  to  4 

it,  report  the  case  so  far  as  necessary  to  present  the  question  of  law  aris-  5 

ing  therein;  and  thereupon  the  case  shall  be  continued  to  await  the  de-  6 

cision  of  the  supreme  judicial  court.  7 

Section  31.  Exceptions  may  be  alleged  by  a  defendant  in  a  criminal  1 
case  who  is  aggrieved  by  an  opinion,  ruling,  direction  or  judgment  of  the  2 
superior  court  rendered  upon  any  question  of  law  arising  at  the  trial  of  3 
such  case  or  upon  a  motion  for  a  new  trial,  but  not  upon  a  plea  in  abate-  4 
ment.  The  exceptions  shall  be  reduced  to  writing  and  filed  with  the  clerk  5 
and  notice  thereof  given  to  the  commonwealth  within  three  days  after  6 
the  verdict  or  after  the  opinion,  ruling,  direction  or  judgment  excepted  7 
to  is  given,  unless  a  further  time,  not  exceeding  five  days,  except  by  8 
consent  of  the  district  attorney,  is  allowed  by  the  court.  The  clerk,  9 
immediately  upon  the  filing  of  the  exceptions,  shall  present  them  to  the  10 
coiu-t,  and  if,  upon  examination  thereof  by  the  presiding  justice,  they  are  11 
found  conformable  to  the  truth,  tliey  shall  be  allowed  by  him.  In  all  12 
cases,  the  district  attorney  shall  have  an  opportunity  to  be  heard  con-  13 
ji9  Mass'  isl  cerning  the  allowance  of  such  exceptions.  The  provisions  of  sections  one  14 
156  Mass.  61.^  hundred  and  fifteen  to  one  hundred  and  seventeen,  inclusive,  of  chap-  15 
217  Mass!  473.  tcr  two  hundred  and  thirty-one,  so  far  as  appropriate,  shall  apply  to  ex-  16 
ceptions  taken  m  crimmal  cases.  17 

Affirmance  of         SECTION  32.     If  the  defendant  neglects  to  enter  his  appeal,  exceptions     1 

judgment  upon  ,      ,.    .    ,  ,  .  ^ 

non-entry  of  or  report  in  the  supreme  judicial  court,  or  neglects  to  take  the  necessary  2 

1817, 185,  §  5.  measures  for  the  hearing  of  the  cause  in  the  supreme  judicial  court,  the  3 

1832!  130.  §  3.  superior  court  may,  upon  the  application  of  the  district  attorney  and  4 

fii.'^s.  ^  ^°'  after  notice,  order  that  the  appeal,  exceptions  or  report  be  dismissed  and  _  5 

p.' 1. 150,' 1 16.'  that  the  judgment,  opinion,  ruling  or  order  appealed  from,  excepted  to  6 

1^88.94/ ^^'  or  reported  be  affirmed.                R.L.219,  §36.                 236 Mass. 326.  7 


New 

trial. 

1830, 

113, 

§3. 

1832, 

130, 

§4. 

R.  S. 

82,  §  30; 

86,  §  11; 

138, 

§  10. 

1855, 

152. 

G.  S. 

173, 

§  7. 

P.S. 

214, 

§  28. 

Report. 

1830. 

113, 

§  *■ 

1832, 

130, 

§5. 

R.  S. 

138, 

§  12. 

G.  S. 

173, 

§8. 

P.S. 

214. 

§29. 

R.  L. 

219, 

§34. 

105  Mass. 

468. 

126  Mass. 

248. 

183  Mass. 

461. 

219  Mass. 

386. 

224  Mass. 

42. 

233  Mass. 

535. 

Exceptions. 

1804, 

105, 

IS- 

1817, 

185, 

§5. 

1820, 

79,  i 

5  5. 

1830, 

113, 

§4, 

1832, 

130, 

§  5. 

R.  S. 

82.  §  29; 

138,  i 

5  11. 

1851, 

261. 

1859, 

196, 

§§27 

■,29. 

G.S. 

115. 

§§7, 

8,10, 

11. 

1863, 

ISO, 

|2. 

1880, 

118. 

P.S. 

153, 

§§8, 

10.1: 

2.13. 

1891, 

379, 

§2. 

1894, 

204; 

412. 

1895, 

153, 

§1. 

R.  L. 

219, 

§35. 

3  Gush.  212. 

110  Mass. 

491. 

Ch.\p.  279.] 


JUDGMENT   AND   EXECUTION. 


2835 


1  Section  33.     Copies  and  papers  relative  to  a  question  of  law  which  Transmission 

2  arises  in  a  criminal  case  in  the  superior  court  upon  appeal,  exception,  R.a'i'ss'ie. 

3  report  or  otherwise  shall  be  prepared  by  the  clerk  of  the  court  and  shall  if^fe/s*.' 

4  thereupon  be  transmitted  to  and  entered  in  the  law  docket  of  the  supreme  5|g|;  in'.  ^  '^' 

5  judicial  court  for  the  proper  county  as  soon  as  may  be  after  such  question  ^-  ^  ^^nj  V37 

6  of  law  has  been  reserved  and  duly  made  matter  of  record  in  the  superior 

7  court.    The  entry  thereof  shall  not  transfer  the  case,  but  only  the  ques- 

8  tion  to  be  determined. 


1  Section  34.     No  motion  in  arrest  of  judgment  shall  be  allowed  for  Motions  in 

2  a  cause  existing  before  verdict,  unless  it  affects  the  jurisdiction  of  the  judgment. 

3  court.  1864,  250,  §  3.  P.  S.  214,  §  27. 


R.  L.  219,  §  38. 
10  Allen.  193. 
129  Mass.  489. 
151  Mass.  394. 


153  Mass.  444. 

159  Mass.  61. 

160  Mass.  307,  354. 
162  Mass.  339. 


170  Mass.  460. 
202  Mass.  379. 
210  Mass.  445. 
213  Mass.  135. 


1  Section  35.     In  all  trials  in  district  courts,  male  and  female  prisoners  Trial  of 

2  shall  not  be  placed  at  the  same  time  in  the  same  dock,  unless  they  are  deTendant, 

3  complained  of  jointly.  i904, 218. 

REFERENCES. 

Disposition  and  examination  of  insane  prisoners,  Chap.  123,  §  100. 
Disposition  of  persons  acquitted  of  murder  or  manslaughter  by  reason  of  insanity, 
Chap.  123,  §  101. 

Speedy  trial  in  superior  court  of  persons  held  in  jail  in  default  of  bail.  Chap.  212,  §  29. 


CHAPTER    279. 

JUDGMENT  AND  EXECUTION. 


Sect. 

1.  Execution   of   sentences   may   be   sus- 

pended, etc. 

2.  Execution  of  certain  orders  of  commit- 

ment may  be  suspended,  etc. 

3.  Arrest  of  person  on  probation. 

4.  Sentence  notwithstanding  appeal,  etc. 
6.  Sentence  if  no  punishment  is  provided 

by  statute.     Service  of  sentence  in 
certain  cases. 

6.  Sentence  to  jail  or  house  of  correction. 

7.  Same  subject. 

8.  Commitments  upon  two  or  more  sen- 

tences. 

9.  Second   sentence    for   non-payment   of 

fine. 

10.  Conditional  sentence. 

11.  Remission    of    fine    or    imprisonment 

where  law  prescribes  both. 

12.  Husband  assaulting  wife  to  recognize, 

etc. 

13.  Recognizance    to    keep    the    peace    in 

other  cases. 

14.  Proceedings   on    forfeiture    of   recogni- 

zance. 

15.  Sentence   to  jail,  etc.,   in   any  county. 


Sect. 

16.  Female  sentenced  to  reformatory,  when. 

17.  Sentences  to  reformatory  for  women. 
IS.  Term  of  sentences  to   reformatory  for 

women. 

19.  Place  of  imprisonment  of  women. 

20.  Imprisonment  of  women  sentenced  to 

confinement    at    hard    labor,    where 
executed. 

21.  Woman  with  infant  may  be  sentenced 

to  town  workhouse,  etc. 

22.  Boy  to  be  sentenced  to  jail  instead  of 

state  prison,  when. 

Sentences  to  jail  and  house  of  correc- 
tion limited. 

Indeterminate  sentence. 

Punishment  of  habitu.al  criminals. 

Further  sentence  of  convict  in  state 
prison. 

Sentence  to  state  prison  may  be  exe- 
cuted immediately. 

Same  subject. 

Form  of  sentence.  Solitary  imprison- 
ment. 

Offices  forfeited  by  sentence  to  state 
prison. 


23 


24. 
25. 
26. 


27 


28. 


30. 


2836 


JUDGMENT   AND   EXECUTION. 


[Chap.  279. 


Sect. 

31.  Persons  punishable  in  reformatory. 

32.  Indeterminate  sentence  to  reformatory. 

33.  Length  of  sentences  at  reformatory. 

34.  Sheriff,  etc.,  to  execute  sentences. 

35.  Copy  of  indictment,  etc.,  to  be  trans- 

mitted to  warden,  etc. 

36.  Sentences  to  state  farm. 

37.  Name  of  crime  to  be  stated  in  mittimus. 
3S.  Powers    of   officer   in    execution    of    a 

warrant  of  commitment. 
Return  of  precept  to  magistrate.    Copy 

with  jailer,  etc. 
Service  of  new  mittimus  upon  convict. 
Default  of  corporation. 


39 


40. 
41. 


Sect. 

42.  Warrant  of  distress. 

43.  Appointment  of  time  for  execution  of 

a  death  sentence. 

44.  Confinement  of  prisoner  under  sentence. 

45.  Sentence,  when  executed. 

46.  Death  penalty,  how  inflicted. 

47.  Insane    person  or  woman   quick   with 

child  not  to  be  sentenced. 

48.  Respite  of  execution  in  such  cases. 

49.  Respite  in  other  cases. 

50.  Witnesses  of  the  execution. 

51.  Post  mortem   examination   of   certain 

bodies. 

52.  Return  of  warrant. 


Execution  of 
sentences  may 
be  suspended, 

1900,449.  §  1. 
R.  L.  220,  §  1. 
1905,  338. 

1912,  154. 

1913,  653. 
203  Mass.  155. 


Section  1.  \\'Tien  a  person  convicted  before  a  district  court  is  1 
sentenced  to  imprisonment,  the  court  may  direct  that  the  execution  of  2 
the  sentence  be  suspended,  and  that  he  be  placed  on  probation  for  3 
such  time  and  on  such  terms  and  conditions  as  it  shall  fix.  Wlien  a  4 
person  so  convicted  is  sentenced  to  pay  a  fine,  and  to  stand  committed  5 
until  it  is  paid,  the  court  may  direct  that  the  execution  of  the  sentence  6 
be  suspended  for  such  time  as  it  shall  fix,  and  tha't  he  be  placed  on  pro-  7 
bation  on  condition  that  he  pay  the  fine  within  such  time.  If  the  fine  8 
does  not  exceed  fifteen  dollars  and  the  court  finds  that  the  defendant  is  9 
unable  to  pay  it  when  imposed,  the  execution  of  the  sentence  shall  be  10 
suspended  and  he  shall  be  placed  on  probation,  unless  the  court  shall  11 
find  that  he  will  probably  default,  or  that  such  suspension  will  be  detri-  12 
mental  to  the  interests  of  the  public.  If  he  is  committed  for  non-payment  13 
of  a  fine,  the  order  of  commitment  shall  contain  a  recital  of  the  findings  14 
of  the  court  on  which  suspension  is  refused.  The  fine  shall  be  paid  in  one  15 
payment,  or  in  part  payments,  to  the  probation  officer,  and  when  fully  16 
paid  the  order  of  commitment  shall  be  void.  The  probation  officer  shall  17 
give  a  receipt  for  every  payment  so  made,  shall  keep  a  record  of  the  same,  18 
shall  pay  the  fine,  or  all  sums  received  in  part  payment  thereof,  to  the  19 
clerk  of  the  court  at  the  end  of  the  period  of  probation  or  any  extension  20 
thereof,  and  shall  keep  on  file  the  clerk's  receipt  therefor.  If  at  the  end  21 
of  said  period  the  probation  officer  shall  report  that  the  fine  is  in  whole  22 
or  in  part  unpaid,  and  in  his  opinion  the  person  is  unable  to  pay  it,  the  23 
court  may  either  extend  said  period,  place  the  case  on  file  or  revoke  the  24 
suspension  of  the  execution  of  the  sentence.  When  such  suspension  is  25 
revoked,  in  a  case  where  the  fine  has  been  paid  in  part,  the  defendant  26 
may  be  committed  for  default  in  payment  of  the  balance.  27 


cMtaS'Srders        Section  2.     lu  all  cascs  the  execution  of  orders  of  commitment  to 

ma'^°be"s*™'^°'  *^^  Massachusetts  reformatory,  the  reformatory  for  women,  the  Suffolk 

pended  etc.       school  for  boys,  the  Plummer  farm  school  of  reform  for  boys,  any  training 

1913!  47i]  §  2.    school,  however  named,  any  house  of  reformation  for  iuvenile  offenders, 

4.  Op.  A.  G.  628!  the  Lyman  school,  the  industrial  school  for  girls,  the  industrial  school  for 

boys  and  the  department  of  public  welfare  may  be  suspended,  and  such 

suspension  continued  or  revoked,  in  the  same  manner  and  with  the  same 

effect  as  the  execution  of  sentences  in  criminal  cases. 


Arrest  of 
person  on 
probation. 
1897,  236. 
1900,  449,  §  2. 
R.  L.  220,  §  2. 


Section  3.  At  any  time  before  final  disposition  of  the  case  of  a  1 
person  placed  on  probation  in  the  custody  of  a  probation  officer,  the  2 
probation  officer  may  arrest  him  without  a  warrant  and  take  him  before    3 


Chap.  279.]  judgment  aiv-d  execxttion.  2837 

4  the  court,  or  the  court  may  issue  a  warrant  for  his  arrest.    Wlien  taken  iss  Mass.  23s. 

5  before  the  court,  it  may,  if  he  has  not  been  sentenced,  sentence  him  or 

6  make  any  other  lawful  disposition  of  the  case,  and  if  he  has  been  sentenced, 

7  it  may  continue  or  revoke  the  suspension  of  the  execution  of  his  sentence. 

8  If  such  suspension  is  revoked,  the  sentence  shall  be  in  full  force  and  effect. 

1  Section  4.     Sentence  shall  be  imposed  upon  conviction  of  a  crime  Sentence  not- 

2  not  punishable  by  death,  although  exceptions  have  been  alleged  or  an  ^peai^etc!"^ 

3  appeal  taken.    The  reservation,  filing  or  allowance  of  exceptions,  or  the  HH]  If^] 

4  entry  of  an  appeal,  shall  not  stay  the  execution  of  the  sentence  unless  fgV^Mi^ss.'  is^' 

5  the  justice  imposing  it,  or  a  justice  of  the  supreme  judicial  court,  files  J|o  Mass  i6 

6  a  certificate  that  in  his  opinion  there  is  reasonable  doubt  whether  the  i75Mas8. 37. 

7  judgment  should  stand.    If  sentence  is  so  stayed,  the  justice  may  at  the  210  Mass!  445! 

8  same  time  make  an  order  relative  to  the  custody  of  the  prisoner  or  for  235  Ria?s.  357. 

9  admitting  him  to  bail.  2  0p.a.g,482. 

1  Section  5.     If  no  punishment  for  a  crime  is  provided  by  statute.  Sentence,  if 

2  the  court  shall  impose  such  sentence,  according  to  the  nature  of  the  i^°p?o"-ided  ^"^ 

3  crime,  as  conforms  to  the  common  usage  and  practice  in  the  common-  serWce'of' 

4  wealth.     If  a  person  is  convicted  of  a  misdemeanor  punishable  by  im-  sentence  in 

,  ,  ,.  "Ill  1    *^6'"^'^'n  cases. 

5  prisonment,  he  may,  unless  otherwise  expressly  provided,  be  sentenced  i782, 9  §  1 

6  to  imprisonment  either  in  the  jail  or  in  the  house  of  correction.  g!  s.'  174,'  §  i.' 

p.  S.  215,  §  1.  1902.  544,  §  34.  165  Mass.  446. 

R.  L.  220,  §  4.  13  Allen,  581.  189  Mass.  76. 

1  Section  6.     Whoever  is  convicted  of  a  crime  punishable  wholly  or  Sentence  to 

2  in  part  by  imprisonment  in  jail  may  be  sentenced  to  such  imprisonment  J,Tcorrec™on. 

3  in  the  house  of  correction  or  to  solitary  imprisonment  and  confinement  r_^s!  ul',  1 17! 

4  at  hard  labor  either  in  the  jail  or  house  of  correction;  and  if  convicted  pf^Vs^'sV' 

5  of  a  crime  punishable  by  imprisonment  in  the  house  of  correction  may  i*s2, 241, 1 1. 

6  be  sentenced  to  such  imprisonment  in  a  jail. 

2  Met.  419.  161  Mass.  120.  188  Mass.  443. 

4  Met.  360.  184  Mass.  320.  215  Mass.  525. 

1  Section  7.     Whoever  is  convicted  of  a  crime  punishable  by  a  fine.  Same  subject. 

2  and  is  liable  to  imprisonment  in  the  jail  for  its  non-payment,  may  be  g.  s!  174',  §  5. 

3  sentenced  to  such  imprisonment  in  the  house  of  correction,  or  to  con-  r.  L.^ilo.^^is. 

4  finement  at  hard  labor  either  in  the  jail  or  house  of  correction.  ^  ^^**-  *°*- 


1  Section  8.    A  convict  upon  whom  two  or  more  sentences  to  imprison-  Commitmenta 

2  ment  are  imposed  may  be  fully  committed  upon  all  such  sentences  at  X'resen-"'^ 

3  the  same  time,  and  shall  serve  them  in  the  order  named  in  the  mittimuses  i8S4?265. 

4  upon  which  he  is  committed ;    but  when  fine  and  imprisonment  are  fgj^-  ^|g;  5  7. 

5  named  in  one  of  the  sentences  the  prisoner  shall  always  be  committed 

6  upon  the  term  sentence  first. 

1  Section  9.    If  a  convict  is  sentenced  to  pay  a  fine  in  more  than  one  second  sen- 

2  case  and  has  been  committed  to  a  jail,  house  of  correction  or  other  prison  non-payment 

3  for  refusing  to  pay  such  fine,  the  subsequent  sentence  shall  take  effect  i874'',"253. 

4  upon  the  expiration  of  the  imprisonment  under  the  former  sentence.        r.l.^22o,\^s. 

1  Section  10.     If  a  person  has  been  convicted  of  a  crime  punishable.  Conditional 

2  at  the  discretion  of  the  court,  by  fine  or  imprisonment  in  the  jail  or  house  i78s.  53,' 

3  of  correction  or  by  fine  or  imprisonment  in  the  state  prison,  the  court  1S34',  i5i,  §  17. 


2838 


JUDGMENT  AND  EXECUTION. 


[Chap.  279. 


R.  S.  139, 

§§2.3. 

G.  S.  174. 

§§6.7. 

P.  S.  215. 

§§  6.  7. 

R.  L.  220.  §  9. 

5  Met.  559. 


may  impose  upon  him  a  conditional  sentence,  and  order  him  to  pay  a  fine  4 

within  a  limited  time  which  shall  be  expressed  in  the  sentence,  and  in  5 

default  thereof  to  suffer  such  imprisonment  as  is  provided  by  law.     He  6 

shall  be  forthwith  committed  to  the  custody  of  an  officer  in  court  or  to  7 

the  jail,  to  be  detained  until  the  sentence  is  compUed  with;  and  if  he  does  8 

not  within  the  time  limited  pay  the  fine  imposed,  the  sheriff  shall  cause  9 

the  other  part  of  the  sentence  to  be  executed  forthwith.  10 


Remission 
of  fine  or 
imprisonment 
where  l.iw 
prescribes 
both. 

R.  S.  1.39.  §  4. 
1855,  215.  §  39. 
G.  S.  174.  §  8. 
1866.  280.  §  1. 
P.  S.  213.  §  S. 
1896.  397,  §  17. 
R.  L.  220,  §  10. 


Section  11.     \\lioever  is  convicted  of  a  crime,  punishable  by  fine  1 

and  imprisonment  either  in  the  jail  or  house  of  correction,  except  a  2 

person  convicted  under  section  thirty-three  of  chapter  one  hundred  and  3 

thirty-eight,  may,  at  the  discretion  of  the  court,  be  sentenced  to  be  pun-  4 

ished  by  imprisonment  only,  or  by  a  fine  only,  if  he  shows  to  the  satis-  5 

faction  of  the  court  that  he  has  not  before  been  convicted  of  a  similar  6 

crime.                     12  Alien,  421,  428.                     is  Alien,  581.                      109  Mass.  361.  7 
127  Mass.  452.                 155  Mass.  8.                 184  Mass.  320.                 236  Mass.  281. 


Husband 

assaulting 

wife  to 

recognize,  etc. 

1879,  42. 

P.  S.  215, 

§§  9,  10. 

R.  L.  220,  I  11. 


Section  12.     Except  as  provided  in  section  twenty-eight  of  chapter  1 

two  hundred  and  eighteen  and  in  section  twenty  of  chapter  two  hundred  2 

and  nineteen,  if  a  husband  is  convicted  of  an  assault  upon  his  wife,  the  3 

court  may,  in  addition  to  the  other  penalties  imposed,  or  in  lieu  thereof,  4 

order  him  to  recognize  with  surety  or  sureties  to  keep  the  peace  for  any  5 

term  of  not  more  than  two  years,  and  may  at  any  time  revoke  such  order  6 

or  reduce  the  amount  required  or  order  that  the  recognizance  be  taken  7 

without  suretv.  8 


Recognizance 
to  keep  the 
peace  in  other 
cases. 

R.  S.  139,  §  5. 
G.  S.  174,  §  10. 
P.  S.  215,  §  11. 
R.  L.  220.  §  12. 
2  Allen,  61. 


Section  13.  Except  as  provided  in  section  twenty-eight  of  chapter 
two  hundred  and  eighteen  and  in  section  twenty  of  chapter  two  hundred 
and  nineteen,  whoever  is  convicted  of  a  misdemeanor  may,  in  addition 
to  the  punishment  prescribed  by  law,  be  required  to  recognize,  with 
sufficient  sureties,  in  a  reasonable  sum  to  keep  the  peace,  or  to  be  of  good 
behavior,  or  both,  for  any  term  of  not  more  than  two  years,  and  to  stand 
committed  until  he  so  recognizes. 


Proceedings 
on  forfeiture  of 
recognizance. 
R.  S.  139,  §  6. 

F'i'iis'iv'^'  proceedings  shall  be  as  provided  in  chapter  two  hundred  and  seventy-five 
R.  L.  220,  §  13.  relative  to  recognizances  to  keep  the  peace  and  be  of  good  behavior. 


Section  14.     Such  recognizance  shall  be  filed  of  record  in  the  superior 
court  for  the  county,  and,  upon  a  breach  of  the  condition  thereof,  the 


fal?.*™c.!  in°  Section  15.     'WTioever  is  convicted  of  a  crime,  punishable  by  imprison- 

isi8'^'i'23*^'  6     ment  in  the  jail  or  house  of  correction,  may  be  sentenced  to  a  jail  or  house 
Jf^S-  ?is'  I  ?■    of  correction  of  any  county,  and  the  master  or  keeper  shall  receive  and 

1870, 3/0,  §4.  .,.."'  •''  .i>iiii  11 

P.  s.  215.  §  13.   detain  him  in  the  same  manner  as  it  he  bad  been  sentenced  by  a  court 
12  Allen,  424.  '  sittiiig  iu  the  county  where  such  jail  or  house  of  correction  is  situated. 

1  Op.  A.  G.  309. 


fe^n"edVo^°"  Section  16.     A  female,  convicted  of  a  crime  punishable  by  imprison-     1 

wh^L™'"'^  ■      ment  in  a  jail  or  house  of  correction,  may  be  sentenced  to  the  reformatory    2 
i874,'383.  §  17.  for  women.  3 


1881, 189. 

P.  S.  215,  §  14. 


R.  L.  220,  §  15. 
1903,  209. 


1906.  282. 

1907,  251,  §  1. 


1911,  181. 
1914,  635. 


flfo*rmatoi^°  Section  17.    The  court  or  trial  justice,  imposing  a  sentence  to  the     1 

for  women.        reformatory  for  women,  shall   not  prescribe  the  limit  of  the  sentence    2 


1903,  209,  §  1. 

1911, 181.        unless  it  is  for  more  than  five  years. 


215  Mass.  525. 


ChL^P.   279.]  JUDGMENT  AND  EXECUTION.  2839 

1  Section  18.     A  female  sentenced  to  the  reformatory  for  women  for  Termofsen- 

2  larceny  or  any  felony  may  be  held  therein  for  not  more  than  five  years,  reroTmatory 

3  unless  she  is  sentenced  for  a  longer  term,  in  which  case  she  may  be  held  i'9oJ°209°' 

4  therein  for  such  longer  term;   if  sentenced  to  said  reformatory  for  any  fgo| Igo  « ^ 

5  other  offence,  she  may  be  held  therein  for  not  more  than  two  years.  55°^^^^^' 

1910,3-17.  1911,181.  215  Mass.  525. 

1  Section  19.    The  sentence  to  imprisonment  of  a  female  convicted  ^'fso^^'ei^'of 

2  of  a  felony  shall  be  executed  in  the  reformatory  for  women;  or  the  court  "omen. 

3  imposing  sentence  in  such  a  case  may  impose  the  sentence  in  a  jail  or  house  1907!  251!  §  1. 

4  of  correction  provided  by  law  in  the  case  of  male  prisoners,  if  it  does  not  i9i4,'635. ' 

5  exceed  two  and  one  half  years.  21s  Mass.  525. 

1  Section  20.     Subject  to  the  preceding  section,  a  sentence  of  a  female  imprisonment 

2  convict  of  whatever  age  to  confinement  at  hard  labor  shall  be  executed  °enTe^edto 

3  in  a  jail  or  house  of  correction  or  the  reformatory  for  women  as  the  at"m"rd°ilbor, 

4  court  orders.  vhere 

CX6CUt6Q 

I8IS,  123,  §  8.  G.  S.  174,  §14.  1889,113.  1911,181. 

1834,  151,  §  IR.  1874,  385,  §  17.  R.  L.  220,  §  16.  12  Gush.  237. 

R.  S.  143,  §  18.  P.  S.  215,  §  15.  1904,  224.  215  Mass.  525. 

1  Section  21.     A  woman  with  a  nursing  infant,  con\-icted  of  a  crime  woman  with 

2  punishable  by  imprisonment  in  a  house  of  correction,  may  be  sentenced  senten™dto^ 

3  to  a  workhouse  in  the  county;  and  two  dollars  a  week  shall  be  paid  by  hou°e™c^" 

4  the  county  to  the  town  where  the  sentence  is  executed  for  her  support  If^*;!/*^' 

5  and  custody.  G.  s.  i74,  §  12.  p.  s.  215,  §  le.  r.  l.  220,  §  17. 

1  Section  22.     If  a  boy  under  sixteen,  convicted  of  felony  and  sen-  Boy  to  be 

2  tenced  to  solitary  imprisonment  and  confinement  at  hard  labor  for  not  flii  fiStead  of 

3  more  than  three  years,  has  not  been  previously  sentenced  to  the  state  when."™""' 

4  prison,  or  to  any  state  prison  or  penitentiary  in  the  United  States,  the  \llf^  \lf^  |  f^, 

5  sentence  shall,  subject  to  the  following  section,  be  executed  in  the  jail.         g- 1-  j^f  1 1|- 

p.  S.  215,  §  17.  R.  L.  220,  §  18. 

1  Section  23.    No  sentence  of  a  male  con\'ict  to  imprisonment  or  con-  Sentences 

2  finement  for  more  than  two  and  one  half  years  shall  be  executed  in  any  housl-'of" 

3  jail  or  house  of  correction.    This  section  shall  apply  only  to  sentences  ififted?'^ 

4  hereafter  imposed. 

1818,  123,  §  1.  1870,  206,  §  1.  1919,  5.  188  Mass.  330. 

1834.  151,  I  14.  p.  S.  215,  §  19.  1920.  2.  215  Mass.  209. 

R.  S.  143,  §19.  R.  L.  220,  §19.  152  Mass.  1.  235  Mass.  357. 

G.  S.  174,  §  16.  1918, 257,  §  464.  161  Mass.  120. 

1  Section  24.     If  a  convict  is  sentenced  to  the  state  prison,  except  for  indeterminate 

2  life  or  as  an  habitual  criminal,  the  court  shall  not  fix  the  term  of  impris-  r,"s™i39,  §  o. 

3  onment,  but  shall  fix  a  maximum  and  a  minimum  term  for  which  he  may  fgyy;  jgo.    ^^' 

4  be  imprisoned.    The  maximum  term  shall  not  be  longer  than  the  longest  p*f '21^5  ^20 

5  term  fixed  by  law  for  the  punishment  of  the  crime  of  which  he  has  been  J^as,  504,  §  1. 

6  convicted,  and  the  minimum  term  shall  not  be  less  than  two  and  one  half  R  i-  220!  1 26. 

7  years.    If  a  convict  sentenced  to  the  state  prison  receives  an  additional  liu  MaS  12a. 

8  sentence  thereto,  it  shall  take  effect  upon  the  expiration  of  the  minimum  leg  Mass]  592! 

9  term  of  the  preceding  sentence.  172  Mass.  264. 

174  Mass.  369.  188  Mass.  330.  Op.  A.  G.  (1920)  73. 

1  Section  25.    Whoever  has  been  twice  convicted  of  crime  and  sen-  Punishment 

2  tenced  and  committed  to  prison  in  this  or  another  state,  or  once  in  this  Criminal"!' 

3  and  once  or  more  in  another  state,  for  terms  of  not  less  than  tliree  years  r^^l!  220!  |  ii. 

4  each,  and  does  not  show  that  he  has  been  pardoned  for  either  crime  on  Jsj^m^^s'  163. 


2840 


JUDGMENT  AND  EXECUTION. 


[Chap.  279. 


158  Mass,  598. 
163  Mass.  226. 
165  Mass.  133. 
173  Mass.  322. 
175  Mass.  202. 
ISO  U.  S.  311. 


Further  sen- 
tence of  con- 
vict in  state 
prison. 


the  ground  that  he  was  innocent,  shall,  upon  con\action  of  a  felony,  be  5 

considered  an  habitual  criminal  and  be  punished  by  imprisonment  in  the  6 

state  prison  for  the  maximum  term  provided  by  law  as  a  penalty  for  the  7 

felony  for  which  he  is  then  to  be  sentenced.  8 

Section  26.    A  con%act  under  sentence  of  imprisonment  in  the  state  1 

prison  may  be  sentenced  for  a  further  time  of  not  less  than  one  year.  2 

1880,  15,  §  2.  P.  S.  215,  |  21.  R.  L.  220,  §  22. 


Sentence  to 
state  prison 
may  be  exe- 
cuted immedi- 
ately. 
1881,  139, 
P.  S.  215,  5  22. 
R.  L.  220,  §  23. 


Section  27.    If  a  convict  serving  a  sentence  of  imprisonment  in  a  1 

jail  or  house  of  correction  is  convicted  of  a  felony,  the  court  may  impose  2 

sentence  of  imprisonment  in  the  state  prison  and  order  it  to  take  effect  3 

forthwith,  notwithstanding  the  former  sentence.    The  convict  shall  there-  4 

upon  be  removed  to  the  state  prison,  and  shall  be  discharged  at  the  ex-  5 

piration  of  his  sentence  thereto.  6 


Same  subject. 

1891,  200. 

K.  L.  220,  §  24. 


Section  28.     If  a  convict  serving  a  sentence  of  imprisonment  in  the  1 

Massachusetts  reformatory  is  convicted  of  a  crime  punishable  by  impris-  2 

onment  in  the  state  prison  or  house  of  correction,  the  court  may  impose  3 

sentence  of  imprisonment  therein  and  may  order  it  to  take  effect  forth-  4 

with,  notwithstanding  the  former  sentence.    The  convict  shall  thereupon  5 

be  removed  accordingly,  and  shall  be  discharged  at  the  expiration  of  his  6 

sentence  thereto.  7 


Form  of 
sentence. 
Solitary 
imprisonment. 
R.  S.  139,  §  8. 
G.  S.  174,  §  IS. 
1866,  254. 
P.  S.  215.  I  23. 
R.  L.  220,  §  25. 
4  Met.  360. 
8  Met.  533. 
11  Met.  575. 
161  Mass.  120. 
167  Mass.  11. 
215  Mass.  209. 


Section  29.  The  form  of  a  sentence  to  the  state  prison  shall  be,  that 
the  convict  be  punished  by  confinement  at  hard  labor  and  by  solitary  im- 
prisonment for  such  terra,  not  exceeding  twenty  days  at  one  time,  as  the 
court  orders.  In  the  execution  of  such  sentence,  the  solitary  imprison- 
ment shall  precede  the  punislunent  by  hard  labor,  unless  the  court  other- 
wise orders;  but  in  case  of  severe  illness  of  the  contact,  the  warden, 
upon  the  certificate  of  the  prison  physician,  may  postpone  the  solitary 
imprisonment  until  the  health  of  the  convict  is  so  far  restored  that  his 
life  will  not  be  endangered  thereby. 


Offices  for- 
feited by 
sentence  to 
state  prison. 
R.  S.  144,  §  31. 
G.  S.  174,  §  19. 
P.  S.  215.  §  24. 
R.  L.  220.  5  26. 
24  Pick.  277. 


Section  30.  If  a  con\-ict  sentenced  by  a  court  of  the  commonwealth 
or  of  the  United  States  to  imprisonment  in  the  state  prison  holds  an 
office  under  the  constitution  or  laws  of  the  commonwealth  at  the  time  of 
sentence,  it  shall  be  vacated  from  the  time  of  sentence.  If  the  judgment 
against  him  is  reversed  upon  writ  of  error,  he  shall  be  restored  to  his  office 
with  all  its  rights  and  emoluments;  but,  if  pardoned,  he  shall  not  by  rea- 
son thereof  be  restored,  unless  it  is  so  expressly  ordered  by  the  terms  of 
the  pardon. 

pShlbie  Section  31.     A  male  under  forty  years  of  age,  not  previously  sen- 

^84^ 255!^§T''  tenced  for  felony  more  than  three  times,  convicted  of  a  crime  punishable 
1886]  iil;  §  5.  by  imprisonment  in  the  state  prison  or  in  a  jail  or  house  of  correction 
R  ^L  2%  5  27  ^^y  b^  sentenced  to  the  Massachusetts  reformatory.  District  courts  and 
1908, 232.'      ■  trial  justices  shall  have  the  same  jurisdiction  to  sentence  such  person  to 

said  reformatory  as  they  have  to  sentence  him  to  such  jail  or  house  of 

correction. 


1 

2 

3 

4 
5 
6 

7 
8 
9 

1 
2 
3 
4 
5 
6 
7 
8 

1 
2 

3 
4 
5 
6 

7 


sentracfto"'^  Section  32.  The  court  imposing  a  sentence  of  imprisonment  in  the  1 
1884™  55°"^'  Massachusetts  reformatory  shall  not  fix  the  term  thereof  unless  it  exceeds  2 
§§8,9.  five  years,  but  shall  merely  impose  a  sentence  of  imprisonment  therein;     3 


7. 
20. 


Chap.  279.]  judgment  and  execution.  2841 

4  but  prisoners  may  be  received  and  held  therein  who  have  been  sentenced  jf^f'!^^- 

5  thereto  by  a  court  of  the  United  States  for  a  fixed  or  hmited  term.  R  l.  220.  §  28. 

216  Mass.  594. 

1  Section  33.     Whoever  is  sentenced  to  the  Massachusetts  reformatory  Length  ot 

2  for  larceny  or  for  any  felony  may  be  held  therein  for  not  more  than  five  reformato^. 

3  years  unless  sentenced  for  a  longer  term,  in  which  case  he  may  be  held  jfls!'!.^^' 

4  therein  for  such  longer  term;  if  committed  to  said  reformatory  as  a  de-  r^^l!  220,  §  29. 

5  linquent  child  he  may  be  held  therein  for  not  more  than  two  years;   if  JgJJgfl' 

6  sentenced  to  said  reformatory  for  drunkenness  he  may  be  held  therein  for  §§  1.2. 

7  not  more  than  one  year;  if  sentenced  to  said  reformatory  for  any  other 

8  offence  he  may  be  held  therein  for  not  more  than  two  years. 

1  Section  34.     \Vlien  a  convict  is  sentenced  to  pay  a  fine  or  to  be  im-  sheriff,  etc., 

2  prisoned,  the  clerk  of  the  court  shall  forthwith  make  out  and  deliver  to  sentences^ 

3  the  sheriff  or  to  some  officer  in  court  a  duly  certified  transcript  from  the  §■  f-  Jy^'  |  _ 

4  minutes  of  the  court  of  the  conviction  and  sentence,  which  shall  authorize  p^^i'2^^'^2^ 

5  the  officer  to  execute  such  sentence,  and  he  shall  execute  it  accordingly.      R-  l.  226,  §  36. 

1  Section  35.     When  a  person  is  committed  to  the  state  prison,  the  Copy  of  in- 

2  Massachusetts  reformatory,  the  reformatory  for  women  or  to  any  other  to^tetrans-"" 

3  public  penal  institution,  on  conviction  of  felony,  the  clerk  of  the  court  "ardelifeto. 

4  shall,  without  charge,  transmit  with  the  mittimus  an  attested  copy  of  p®i'2i.|'|26 

5  the  complaint  or  indictment  under  which  such  person  was  convicted,  and  issV.  255, 1 10. 

6  the  names  and  addresses  of  the  witnesses  who  testified  for  and  against  lau.'sfo.' 

7  such  person  at  the  trial,  together  with  a  record  containing  the  names 

8  and  addresses  of  the  presiding  justice,  district  attorney  and  of  the  attorney 

9  for  the  defendant. 

1  Section  36.     In  imposing  a  sentence  of  imprisoimient  at  the  state  sentences  to 

2  farm,  the  court  or  trial  justice  shall  not  fix  or  limit  the  duration  thereof.  i*898,443?'§  1. 

3  Whoever  is  sentenced  to  the  state  farm  for  drunkenness  may  be  there  ^'  ^'  *^'  ^  ^^■ 

4  held  in  custody  for  not  more  than  one  year,  and  if  so  sentenced  for  any 

5  other  offence  may  be  there  held  in  custody  for  not  more  than  two  years. 

1  Section  37.    Every  warrant  for  the  commitment  of  a  person  sentenced  ^^F'^  9^,"}'"'' 

r»    l_  J*        •  •    1  •         •  1      n  i»        1       1  '0  to  be  stated  in 

2  by  a  district  court  or  trial  justice  shall  set  forth  the  statutory  name,  if  any,  ?i'H'°JVI- 

3  of  the  crime  of  which  the  person  was  convicted,  and  shall  contain  a  cita-  wis!  257! 

4  tion  of  the  statute,  if  any,  under  which  the  complaint  was  drawn.  i9i9,'5. 

1920,  2. 

1  Section  38.     A  sheriff,  deputy  sheriff  or  constable,  when  engaged  in  Powers  of 

2  the  execution  of  a  warrant  for  the  commitment  of  a  person  to  a  penal  execud'on  of  a 

3  institution  which  is  not  in  his  own  county,  shall  have  the  same  powers  ^ommUmLt. 

4  in  any  county  through  which  he  may  pass  as  he  would  have  in  his  own  }|I°'  |™'  |  f  • 

5  county  in  the  performance  of  a  similar  duty. 

1880.  120,  §  3.  p.  S.  21,5,  §  27.  R.  L.  220,  §  32. 

1  Section  39.     The  officer  serving  the  precept  in  a  criminal  case  shall,  pj^e"™  to 

2  without  charging  travel  therefor,  return  it  with  his  doings  and  fees  en-  magistrate. 

o      1  111  .  ...  1  1      n  n  Cony  with 

3  dorsed  tiiereon  to  the  court  or  magistrate  issuing  it,  who  shall  tax,  allow  iaifer,  etc. 

4  and  certify  the  fees  as  a  part  of  the  expenses  in  the  case.    In  case  of  com-  g.  s.'  174',  1 22. 

5  mitment,  the  officer  shall  leave  with  the  jailer  or  keeper  of  the  prison  an  r  s'.'2Y5!'§  2I. 

6  attested  copy  of  the  precept,  with  his  return  thereon,  which  shall  author-  u  Gray,°468^^' 

7  ize  the  detention  of  the  person  committed. 


2842  JUDGMENT  AND   EXECUTION.  [ChAP.   279. 

mTttimu^'upra       SECTION  40.     If  a  convict  imprisoned  Under  sciitence  is  again  Sentenced  1 

G^s"  n4,  §  23  to  confinement  in  a  prison  other  than  that  in  which  he  is  then  held,  the  2 

R  L ^20 \%  '^arrant  for  his  commitment  in  pursuance  of  the  second  sentence  shall  3 

be  placed  in  the  hands  of  the  warden,  superintendent,  master  or  keeper  4 

of  the  prison  where  the  convict  is  held,  and  said  warden,  superintendent,  5 

master  or  keeper,  upon  the  expiration  of  the  first  sentence,  shall  commit  6 

the  convict  in  obedience  to  said  warrant.  7 


Default  of 
corporation. 


Sectjon  41.     If  a  corporation,  after  being  duly  served  with  process,  1 

G  ^s'  174'  I  ^9  ^'^''^  ^^  appear  and  answer  to  an  indictment  or  complaint  brought  against  2 

R  L  220  1 35'  ^*  under  the  laws  of  the  commonwealth,  its  default  shall  be  recorded,  3 

206  Mass!  417. '  the  chargcs  in  the  indictment  or  complaint  taken  to  be  true,  and  judgment  4 

rendered  accordingly.  5 

dutress*  "^  SECTION  42.     If  judgment  is  rendered  against  a  corporation  upon  an    1 

i?^l'  ?i?'  t  ?>,  indictment  or  complaint  under  the  laws  of  the  commonwealth,  the  court    2 

O.  h.  174,  8  oU.  ,  (•!•  1  i»ii  «-* 

p.  s.  215.  §  31.  may  issue  a  warrant  or  distress  to  compel  payment  or  the  penalty  pre-    3 
206  Mass.'  417. '  scribcd  by  law,  with  interest.  4 

oftime*f™r'         Section  43.     In  pronouncing  sentence  of  death  upon  a  person  con-     1 

death*s°e'nten«;  victcd  of  a  Capital  crimc,  the  court  shall  appoint  a  week  within  which    2 

C-^]^3o^|  1.     the  sentence  shall  be  executed.    The  clerk  of  the  court  shall,  as  soon    3 

§  24.   '    '        as  may  be,  make  out  and  deliver  to  the  governor  a  certified  copy  of  the    4 

i852[  274!       '  whole  record  of  the  conviction  and  sentence,  and  shall  immediately    5 

1857, 37.  thereafter  make  out,  sign  and  deliver  to  the  sherift"  of  the  county  M'here    6 

?87f,  166, 1  ]^'  the  con\'iction  was  had  a  warrant  under  the  seal  of  the  court  stating    7 

i89s',326'.  |i^    the  conviction  and  sentence,  and  the  week  appointed  for  the  execution    8 

ns^Mas"'  1  ^^'  thereof,  and  shall  at  the  same  time  transmit  to  the  warden  of  the  state    9 

prison  a  certified  copy  of  the  warrant.    Such  warrant  shall  be  directed  to  10 

the  warden  of  the  state  prison  commanding  him  to  cause  execution  to  be  11 

done  in  accordance  with  the  provisions  of  such  sentence  upon  a  day  within  12 

the  week  so  appointed.  13 

^"pHsoM™*  Section  44.     After  a  convict  has  been  sentenced  to  the  punishment     1 

is9"32li!'r2'^^'  o^  death,  he  shall  be  confined  in  jail  in  the  county  where  he  was  con-  2 
r°l'  220  38  '^i^ted  until  within  ten  days  of  the  first  day  of  the  week  appointed  for  the  3 
178  Mass!  549. '  exccutiou  of  the  sentence  of  death.  He  shall,  within  such  ten  days,  at  4 
a  time  choseri  by  the  sheriff',  be  conveyed  by  him  or  a  deputy  designated  5 
by  him,  as  secfl-etly  as  may  be,  to  the  state  prison,  and  shall,  with  the  war-  6 
rant,  be  delivered  to  the  warden  thereof  or  to  the  officer  performing  the  7 
duties  thereof.  He  shall,  unless  lawfully  discharged  from  such  imprison-  8 
ment,  be  kept  in  a  cell  provided  for  the  purpose  from  the  time  of  such  9 
delivery  until  the  sentence  of  death  is  executed  upon  him,  and  no  person  10 
shall  be  allowed  access  to  him  without  an  order  of  the  court,  except  the  11 
officers  and  employees  of  the  prison,  his  counsel,  and  such  physicians,  12 
priest  or  minister  of  religion  as  the  warden  may  approve,  and  the  mem-  13 
bers  of  his  family  who  are  identified  to  the  satisfaction  of  the  warden.  If  14 
the  execution  of  the  sentence  of  death  is  respited  by  the  governor,  or  is  15 
otherwise  delayed  by  process  of  law,  the  convict  may,  in  the  discretion  of  16 
the  warden,  be  confined  in  a  cell  used  for  solitary  confinement.  17 

executed!  ^  ^°       Section  45.     The  sentence  of  death  shall  be  executed  by  the  warden     1 
1/^6-  ,  32.        ^£  ^YiQ  state  prison,  or  by  a  person  acting  under  his  direction,  within  the    2 


CH-^P.   279.]  JUDGMENT   AND  EXECUTION.  2843 

3  week  appointed  by  the  court,  unless  the  governor  pardons  the  crime,  r.  s.  139, 

4  commutes  the  punishment  therefor  or  respites  the  execution.     If  the  g  s'174, 

5  execution  is  respited,  the  sentence  of  death  shall  be  executed  within  the  ilret'iBe,  §  2. 

6  week  beginning  on  the  day  next  after  the  day  on  which  the  term  of  ^g|g  Ige  |?' 

7  respite  expires.    The  sentence  of  death  shall  be  executed  upon  such  day  fyg^j^g,' l^^- 

8  within  the  week  appointed  as  the  warden  elects,  at  some  time  between  210  Mass.  609. 

9  midnight  and  sunrise;    but  no  previous  announcement  thereof  shall  be 
10  made,  except  to  such  persons  as  may  be  permitted  to  be  present. 

1  Section  46.    The  punishment  of  death  shall  be  inflicted  by  causing  a  Death  penalty, 

2  current  of  electricity  of  sufficient  intensity  to  cause  death  to  pass  through  r°'s."i39,  "§  is. 

3  the  body  of  the  convict,  and  the  application  of  such  current  shall  be  con-  \ll^]  ly'^'  ^  ^" 

4  tinuous  until  he  is  dead.    The  sentence  shall  be  executed  within  an  en-  p^i^iU^H?.' 

5  closure  or  building  for  that  purpose  adjoining  the  state  prison  and  the  5f^|'|-5'o 

6  company  which  furnishes  the  electric  power  or  light  to  the  state  prison  R- l-  220  i  40. 

7  shall  provide  all  necessary  electricity  for  executions  at  such  times  as  the  11  Cusii.  eoi. 

8  warden  orders.  i78  Mass.  549. 

1  Section  47.     If  a  person  convicted  of  a  capital  crime  is,  at  the  time  insane  person 

2  when  motion  for  sentence  is  made,  found  by  the  court  to  be  insane,  it  may  quick'n™h 

3  cause  such  person  to  be  removed  to  one  of  the  state  hospitals  for  such  term  be  sentenced. 

4  and  under  such  limitations  as  it  may  order.    If  a  woman  convicted  of  a  p*s^'2\'5%^34. 

5  capital  crime  is,  at  the  time  when  motion  for  sentence  is  made,  found  by  R-  ^-  220,  §  41. 

6  the  court  to  be  quick  with  child,  the  court  shall  not  pass  sentence  upon 

7  her  until  it  finds  that  she  is  no  longer  quick  with  child. 

1  Section  48.     If  it  appears  to  the  satisfaction  of  the  governor  and  ^e^p^'ffo°'in 

2  council  that  a  convict  under  sentence  of  death  has  become  insane,  the  ^'''s^lg^.  12 

3  governor,  with  the  advice  and  consent  of  the  council,  may,  from  time  to  c'.  s.  iii.  1 25! 

4  time  for  stated  periods,  respite  the  execution  of  said  sentence,  until  it  p.  s.' 215,' §35. 

5  appears  to  their  satisfaction  that  the  convict  is  no  longer  insane.    If  it  ^'    ■  ^^  •  ^  *  ■ 

6  appears  to  the  satisfaction  of  the  governor  and  council  that  a  female  con- 

7  vict  under  sentence  of  death  is  tjuick  with  child,  the  governor,  with  the 

8  advice  and  consent  of  the  council,  shall  from  time  to  time  respite  the 

9  execution  of  said  sentence  for  stated  periods  until  it  appears  to  their 
10  satisfaction  that  she  is  no  longer  quick  with  child. 

1  Section  49.     The  governor,  with  the  advice  and  consent  of  the  council,  JthTr  mses. 

2  may  from  time  to  time  respite  the  execution  of  a  sentence  of  death  for  p'^'afs'llr, 

3  stated  periods  so  long  as  he  may  consider  it  necessary  to  afford  him,  with  R.  l-  220,  §  43. 

4  the  advice  and  consent  of  the  council,  an  opportunity  to  pardon  the  con- 

5  vict  and  to  investigate  and  consider  the  facts  of  the  case  for  that  purpose. 

1  Section  50.    There  shall  be  present  at  the  execution  of  the  sentence  witnesses  of 

2  of  death,  in  addition  to  the  warden,  deputy  warden  and  such  officers  of  the  r.^s.''i39,'|°i4. 

3  state  prison  as  the  warden  deems  necessary,  the  person  performing  the  p' |; 2/5,' §  ss^' 

4  execution  under  the  direction  of  the  warden,  the  prison  physician,  the  ^^l'  ||^;  1 14 

5  chief  surgeon  of  the  militia,  a  medical  examiner  for  Suffolk  county,  or, 

6  if  they  are  unable  to  be  present,  such  physicians  as  the  warden  approves. 

7  The  physicians  present  shall  be  the  legal  witnesses  of  the  execution. 

8  There  may  also  be  present  the  sheriff  of  the  county  where  the  defendant 

9  was  convicted  or  his  deputy,  a  priest  or  minister  of  religion  and,  with 
10  the  approval  of  the  warden,  not  more  than  three  other  persons. 


2844 


FINES   AND   FORFEITURES. 


[CUAF.  280. 


fx'JmSati^"  Section  51.  There  shall  be  a  post  mortem  examination  by  a  medical 
bodfes*""  examiner  for  Suffolk  county  of  the  body  of  every  person  electrocuted  in 
1911. 274.  §  1.    conformity  with  the  sentence  of  a  court.  3 


1 
2 


wl^ant°^  Section  52.     WTien  the  warden  has  executed  the  sentence  of  death     1 

G  I'  lu'iM'  'Lipon  a  convict  in  obedience  to  a  warrant  from  the  court,  he  shall  forth-    2 
1876. 166',  5  6^    ^ith  make  return  thereof  under  his  hand,  with  the  doings  thereon,  to  the    3 


p.  S.  215.  §  39.      „  „    ,        ,     ,       »       . , 

1898, 326. 5  7.    offace  01  the  clerk  or  said  court. 


E.  L.  220,  J  i5. 


CHAPTER    280. 

FINES  AND  FORFEITURES. 


Sect. 

1.  Fines  and  forfeitures,  how  recovered. 

2.  Paj-ment  of  certain  fines  and  forfeitures. 

3.  Counsel  in  proceedings  for  penalties. 

4.  County  to  pay  expense  of  prosecution. 

5.  Expense  of  briefs  in  criminal  cases. 

6.  Expenses  of  prosecution. 

7.  Certificates  of  fines. 

8.  Accounts  of  fines,  etc. 

9.  Same  subject. 

10.  Paynaent  of  witness  fees. 

11.  Fines,  etc.,  to  be  paid  to  sheriff,  and 

by  him  to  county. 


Sect. 

12.  Sheriff   suffering   escape   to   pay   fines, 

etc. 

13.  Remedy  if  sheriff  neglects  to  pay  over 

fines. 

14.  PajTnents  to  jailer  or  master  of  house 

of  correction. 

15.  Jailer  and  master  of  house  of  correction 

to  make  quarterly  returns. 

16.  Expenses  to  be  paid  by  county  treas- 

urer if  demanded  within  tliree  years, 
etc. 


Fines  and  for- 
feitures, how 
recovered. 
1793.  43.  I  4. 
ISOO.  57.  I  4. 
R.  S.  118,  §  42; 
133,  §  14. 
G.  S.  176,  I  2. 
P.  S.  217,  5  2. 


Section  1.     Fines  and  forfeitures  exacted  as  punishments  for  offences  1 

or  violation  or  neglect  of  any  duty  imposed  by  statute  may,  unless  other-  2 

wise  provided,  be  prosecuted  for  and  recovered  by  indictment  or  com-  3 

plaint  or  by  an  action  of  tort  in  the  name  of  the  commonwealth  in  a  court  4 

having  jurisdiction  of  the  offence  or  action.  5 


R.L.  221.  5  1. 
108  Mass.  139. 
124  Mass.  277. 


144  Mass.  170. 
151  Mass.  60. 
183  Mass.  491. 


216  Mass.  344. 

1  Op.  A.  G.  638. 

2  Op.  A.  G.  125. 


Payment  of  SECTION  2.     A  fine  or  forfeiture  imposed  by  the  superior  court  shall, 

certain  tines  'iii  •!  i  pi 

R°V°i33''§T4'  ^'^'^^P*  ^^  otherwise  pro^•lded,  be  paid  over  to  the  treasurer  ot  tlie  county 
1839. 135.  '  where  the  proceeding  in  which  the  fine  or  forfeiture  was  imposed  was 
G; .?•  \i6- .  1-  ^.j.;gj^  Qj.  jjj  Suffolk  county  to  the  collector  of  Boston,  except  that  in  cases 
appealed  from  district  courts  or  trial  justices,  in  counties  other  than 
Suffolk,  the  fine  or  forfeiture  shall  be  paid  into  the  treasury  of  the 
county  where  it  was  imposed,  and  the  treasurer  of  the  said  county  shall 
pay  to  the  town  where  the  offence  was  committed  the  costs  as  certified 
bv  the  clerk  of  the  inferior  court  from  which  the  case  Mas  appealed. 


I860,  191,  §  10. 
P.  S.  217,  §  1. 
1890,  440.  §  5. 
1891,416,  I  1. 
R.  L.  221,  §  2. 
1911,  250, 
§§  1.  2. 

153  Mass.  211. 
157  Mass.  14, 
4G7. 

i0p.AfG.63s.  A  fine  or  forfeiture  imposed  by  a  district  court  or  trial  justice  shall,  ex-  10 
cept  as  otherwise  p^o^•ided,  be  paid  to  the  town  where  the  crime  or  offence  1 1 
was  committed.  If  the  whole  or  any  part  of  a  fine  is  by  law  payable  12 
to  a  complainant  or  informant  or  to  a  person  or  corporation  as  benefi-  13 
ciary,  the  court  or  trial  justice  may  apportion  the  fine  or  forfeiture  be-  14 
tween  such  complainant,  informant  or  other  beneficiary  and  the  county  15 
or  town,  respectively.  This  section  shall  not  apply  to  fees  and  fines  re-  16 
ceived  under  section  thirty-four  of  chapter  ninety.  17 


CbAF.   2S0.]  FINES   .\ND  FORFEITURES.  2845 

1  Section  3.     In  proceedings  in  the  name  of  the  commonwealth  for  the  Counsel  in  pro- 

2  recovery  of  fines,  forfeitures  or  penalties,  the  whole  or  any  part  of  which  penalties." 

3  do  not  enure  to  the  benefit  of  the  commonwealth,  the  court  may,  upon  ^,'s.' 211.' i s.' 

4  motion  of  the  district  attorney,  appoint  an  attorney  to  conduct  the  cause  2ie^Ma"8s'.  344. 

5  imder  his  direction;  but  such  attorney  so  appointed  shall  have  no  right 

6  to  control  the  cause  or  receive  compensation  from  the  commonwealth. 

1  Section  4.     Expenses  arising  in  a  criminal  prosecution,  including  fees  County  to 

2  of  grand  and  traverse  jurors  for  travel  and  attendance  therein,  shall  of  prosecution. 

3  be  paid  by  the  county  where  the  prosecution  is  pending;  but  no  part  of  1752, 55'  ' 

4  the  expenses  arising  under  a  prosecution  for  the  violation  of  a  by-law  or  jyfi;  53;  §  2. 

5  ordinance,  except  witness  fees,  shall  be  paid  by  the  county. 

1817.145.  1841,74.  §1.  1860,  191.510.  1898. 204.  §  4. 

1824.117.  1845.227.  1880,  120,  §  2.  R.  L.  221,  §  4. 

1825,  73,  §  2.  1860,  68.  P.  S.  217,  §  4.  2  Op.  A.  G.  112. 

R.  S.  141,  §  1.  G.  S.  176,  §  4.  1890,  440,  §  2, 

1  Section  5.     In  a  criminal  case  in  which  questions  of  law  are  carried  bSfffncrim- 

2  to  the  supreme  judicial  court,  the  attorney  general  or  district  attorney  isfg''^'''- 

3  may  have  necessary  copies  of  the  brief  for  the  commonwealth  printed,  Sf;  221^55 

4  and  the  expense  thereof  shall  be  paid  in  the   same  manner  as  other 

5  expenses  in  the  case. 

1  Section  6.     Before  imposing  a  fine  as  a  penalty  or  part  penalty  for  a  Expenses  of 

2  crime,  the  court  or  justice  shall  determine  the  reasonable  and  actual  ex-  is9a*328?'§'  i; 

3  penses  of  the  prosecution,  including  the  ser'vices  of  officers  and  wdtnesses,  r.°l.  221,  §  6. 

4  the  detention  and  support  of  the  defendant  and  the  expense  of  serving  a 

5  mittimus  or  other  warrant  of  commitment;  and  may  impose  a  fine,  not 

6  exceeding  the  maximum  fine  prescribed  for  the  crime,  which  shall  in- 

7  elude  the  whole  or  any  part  of  the  amount  of  the  expenses  so  found 

8  and  determined.    If  the  presiding  justice  is  of  opinion  that  the  maximum 

9  fine  is  an  inadequate  penalty  for  the  crime  committed,  he  may  impose 

10  such  maximum  fine  and  order  the  defendant  to  pay  the  whole  or  any  part 

11  of  the  expenses  of  the  prosecution.     Defendants  who  pay  such  expenses 

12  after  commitment  shall  also  pay  the  expense  of  commitment. 

1  Section  7.     At  the  end  of  every  sitting  of  the  superior  court  for  the  Certificates 

2  transaction  of  criminal  business,  the  clerk  shall  make  and  deliver  to  the  c.  l.  isi,  5  4. 

3  treasurers  of  the  respective  counties,  cities  or  towns  certificates  of  all  n'oo^ii  21,  u. 

4  fines  imposed  by  the  court,  to  the  use  of  the  commonwealth,  county,  il^;ttij'^%_ 

5  city  or  town.  g.  s.  i76,  5  s. 

1861,  184.  P.  S.  217,  §  8.  1890,  218,  §  2.  R.  L.  221,  §  7. 

1  Section  8.     The  clerk  of  the  superior  court  for  the  transaction  of  fi,"°""t^°^ 

2  criminal  business  for  Suffolk  county,  the  clerks  of  the  municipal  courts  J^gi,  236,  §  i. 

3  in  Boston,  the  sheriff,  master  of  the  house  of  correction  or  other  officer, 

4  except  those  named  in  the  following  section,  upon  receiving  fines,  fees  or 

5  other  money  in  any  criminal  proceedings,  payable  to  Suft'olk  county  or 

6  to  Boston,  shall,  before  the  tenth  day  of  every  month,  pay  over  to  the 

7  collector  of  said  city  and  account,  on  oath,  for  all  fines,  fees  or  other 

8  money  so  received  during  the  preceding  calendar  month,  and  make  the 

9  detailed  statements  required  by  law. 

1  Section  9.     The  clerks  of  all  courts  in  Suffolk  county,  except  those  Snme  subject. 

2  named  in  the  preceding  section,  who  are  required  to  account  to  Bos-  r.  l!  221;  1 0. 


2846 


FINES  AND   FOKFEITUEES. 


[CiLVP.   2S0. 


ton  shall,  on  or  before  the  tenth  day  of  each  month,  pay  over  to  the  col-  3 

lector  of  said  city  and  account,  on  oath,  for  all  fines,  fees  and  other  money  4 

received  by  them  in  any  criminal  proceedings  during  the  preceding  cal-  5 

endar  month  remaining  after  the  payments  therefrom  allowed  by  law.  6 


Payment  of 
witness  fees. 
1891,  236,  §  2. 
R.  L.  221,  §  10. 
1918,  257, 
§  466. 
1919,5. 
1920,  2. 


Section  10.    The  treasurer  of  Boston  shall  pay  to  the  persons  en-  1 

titled  thereto  all  witness  fees  or  other  money  due  for  services  rendered  2 

or  e.\penses  incurred  in  any  of  the  courts  named  in  section  eight,  or  for  3 

any  of  the  aforesaid  officers,  upon  presentation  to  him  of  a  certificate  4 

stating  the  name  of  the  claimant,  of  the  court  and  of  the  case,  the  nature  5 

of  the  services  rendered  or  expenses  incurred  and  the  amount  due  therefor,  6 

signed  by  the  clerk  of  the  court  or  by  the  officer  for  whom  the  ser\-ice  7 

was  rendered.  8 


Fines,  etc.,  to 
be  paid  to 
fiheriff,  and  by 
him  to  county. 
1093-4,  2,  §  1. 
1791,  53,  §  2. 
R.  S.  141,  §  9. 
1857,  107,  §  1. 
G.  S.  176, 
§§9,12. 
1881,  52.  §  1. 
P.  S.  217, 
§§9,12. 
1890,  218,  §  1. 
R.  L.  221,  §  11. 
1918,  257, 
§467. 
1919,5. 
1920,  2. 
2  Gray,  428. 


Section  11.  Except  as  otherwise  provided  in  section  eighty  of  1 
chapter  two  hundred  and  seventy-sLx,  fines  and  forfeitures  imposed  in  2 
criminal  prosecutions  by  the  superior  court  to  the  use  of  the  common-  3 
wealth,  or  to  any  county,  or  to  Boston,  and  all  amounts  found  to  be  due  4 
on  forfeited  recognizances,  shall,  under  the  direction  of  the  court,  be  5 
certified  by  the  clerk  to  the  sheriff.  The  sheriff  or  his  deputy  may  re-  6 
ceive  such  fines  and  forfeitures,  but  the  sheriff  shall,  except  as  otherwise  7 
provided  by  law,  within  ten  days  after  the  final  adjournment  of  the  8 
sitting  of  the  court,  pay  the  same  without  deduction  to  the  county  9 
treasurer  and  render  to  him,  or  in  Suffolk  county  to  the  collector  of  10 
Boston,  an  account,  on  oath,  of  all  amounts  which  he  has  received  since  11 
the  last  preceding  sitting  of  the  court  for  fines,  forfeitures  and  forfeited  12 
recognizances  and  the  names  of  the  persons  from  whom  received  and  13 
against  whom  awarded.  If  a  sheriff  neglects  for  thirty  days  to  render  14 
such  account  he  shall  be  liable  to  a  penalty  of  two  hundred  dollars,  which  15 
shall  be  recovered  in  the  manner  provided  in  section  thirteen.  16 


fe^ringVscape  Section  12.  A  shcrlff  who,  having  a  person  in  his  custody  by  virtue 
etc'"'^  ^'^'  of  tli^  sentence  of  a  court,  voluntarily  or  negligently  suffers  him  to  escape 
1791. 53  §3  shall  be  held  to  have  received  the  fines,  forfeitures  or  forfeited  recog- 
1857!  107,'  §  1.'  nizances  described  in  the  preceding  section,  at  the  time  of  the  escape, 
p."  s.' 217,' §  10.'  and  shall  be  liable  for  the  same,  with  interest  and  costs,  as  if  he  had 

R.  L.  221,  §  12.  •        1    . , 

received  them. 


Remedy  if 
sheriff  neglects 
to  pay  over 
fines. 

1791.53.  §  3. 
R.  S.  141,  §  9. 
1857,  107,  §  1 
G.  S.  176,  §  11. 
P.  S.  217,  §  11. 


Section  13.  If  a  sheriff  neglects  to  make  such  payment  for  thirty 
days,  the  county  treasurer  shall  recover  of  him  in  contract  the  amount 
of  such  fines,  forfeitures  and  forfeited  recognizances,  Mith  interest  at  the 
rate  of  twelve  per  cent  from  the  time  of  receiving  or  from  the  time  he  is 
held  to  have  received  the  same  and  costs.  r.l.22i,§i3. 


Section  14.     A  person  committed  to  a  jail  or  house  of  correction  in 
default  of  paj-ment  of  a  fine  may  pay  it  to  the  keeper  of  the  jail  or  master 


Payments  to 
jailer  or 
master  of 
house  of 

i88r52!°§  1.     of  the  house  of  correction,  and  the  warrant  for  his  commitment  shall 
1891, 4'ifi'  I V'  designate  the  town  where  the  offence  for  which  the  fine  was  imposed  was 
R.  L.  221,  §  14.  committed  and  the  uses  to  which  such  fine  is  payable  by  the  officer 
receiving  it. 


.Jailer  and 
master  of 
house  of 
correction  to 


Section  15.     Every  keeper  of  a  jail  and  master  of  a  house  of  correc-     1 
tion  shall,  except  in  Sufl'olk  county  as  provided  in  section  eight,  on  the    2 


Ch.\P.   280.]  FINES  AND  FORFEITUEES.  2847 


3  first  days  of  January,  April,  July  and  October,  pay  over  to  the  persons  make  quarterly 

4  entitled  thereto  all  money  received  by  him  under  the  preceding  section  issi^m.  §  2._ 

5  during  the  preceding  three  months,  and  render  to  the  county  treasurer  im,  4\o,  §  a^' 

6  an  account,  on  oath,  showing  the  names  of  the  prisoners  by  whom  pay-  ^'  ^'  ^^^'  ^  ^^' 

7  ments  have  been  so  made,  the  court  by  which  each  was  committed  and 

8  the  amount  received  from  each. 

1  Section  16.    The  county  treasurer  shall  pay  over  to  the  persons  Eipenses  to 

2  entitled  thereto  all  amounts  allowed  to  them  for  expenses  or  fees  in  crim-  coimTy    ^ 

3  inal  prosecutions,  or  allowed  by  the  courts  as  rewards  or  compensations  demlnde/ 

4  to  prosecutors,  which  have  been  duly  certified  by  the  clerks,  if  demanded  ye^^^ei^^^ 

5  M'ithin  three  years  after  the  allowance  thereof;  but  he  shall  pay  no  such  jff'ffi  Vj, 

6  amounts  to  a  trial  justice,  or  to  a  clerk  of  a  district  court,  until  the  trial  g- s.  176,  §  17. 

7  justice  or  clerk  has  rendered  a  WTitten  account  of  all  fines  received  by  §§8,16. ' 

8  him  since  his  last  return,  and  of  all  fees  which  have  remained  in  his  p.  s.'2i7,'  §  16. 

9  hands  for  one  year  after  their  allowance.       R-  l-  221,  §  le.       14  AUen,  217. 


2848 


THE   GENERAL  L-^WS  AND  THEIR  EFFECT. 


[Chaf.  281. 


PART   V. 


THE    GENERAL  tAWS,   AXD   EXPRESS   REPEAL  OF   CER- 
TAIN ACTS  AND  RESOL^^S. 


Chapter  281.     The  General  Laws  and  their  Effect. 
Chapter  2S2.     Express  Repeal  of  Certain  Acts  and  Resolves. 


CHAPTER,    281. 

THE  GENERAL  LAWS  AND  THEIR  EFFECT. 


Sect. 

1.  General  Laws,  how  cited,  when  to  take 

effect. 

2.  General  Laws  to  be  a  continuation  of 

former  acts. 

3.  Repeal  by  General  Laws  not  to  revive 

former  acts,  etc. 

4.  Repeal  by  General  Laws  not  to  affect 

acts    done,    etc.     Effect    in    probate 
appeals. 


Sect. 

5.  Repeal  by  General  Laws  not  to  affect 

penalties  or  forfeitures,  except,  etc. 

6.  Repeal  by  General  Laws  not  to  affect 

criminal  actions  commenced,  etc. 

7.  Tenure  of  office  preserved. 
S.  Salaries  to  continue. 

9.  Periods  of  limitation  to  continue  to  run. 
10.  Temporary-  laws  to  continue  in  force. 


Geneml  Laws, 
how  cited, 
when  to  take 
effect. 
R.  S.  146, 
§§1,2. 
G.  S.  181, 
§§  1,2. 
P.S.223,  §  1. 


Section  1.     This  act  shall  not  in  any  citation  or  enumeration  of  the  1 

statutes  be  reckoned  as  one  of  the  acts  of  nineteen  hundred  and  twenty,  2 

but  may  be  designated  as  the  General  Laws,  adding  the  number  of  the  3 

chapter  and  section  when  necessary,  and  shall  take  effect  from  and  after  4 

December  thirty-first,  nineteen  hundred  and  twenty.  5 


R.  L.  226,  5  1. 


203  Mass.  539. 


General  Laws 
to  be  a  con- 
tinuation of 
former  acts. 
G.S.  181,  §9. 
P.  S.  223.  §  2. 
R.  L.  226,  §  2. 
138  Mass.  593. 
181  Mass.  522. 
186  Mass.  376. 
210  Mass.  588. 


Section  2.     The  provisions  of  the  General  Laws,  so  far  as  they  are  1 

the  same  as  those  of  existing  statutes,  shall  be  construed  as  a  continua-  2 

tion  thereof  and  not  as  new  enactments,  and  a  reference  in  a  statute  3 

wliich  has  not  been  repealed  to  provisions  of  law  which  are  revised  and  4 

re-enacted  herein  shall  be  construed  as  applying  to  such  provisions  as  5 

so  incorporated  in  the  General  Laws.                       213  Mass.  79.  6 


Repeal  by 
General  Laws 
not  to  re\'ive 
former  acts, 
etc. 


Section  3.    The  repeal  of  a  law  by  this  act  shall  not  revive  a  law    1 
heretofore  repealed  or  superseded,  nor  an  office  heretofore  abolished.  2 


R.S.  146,  §§3,9. 


G.  S.  ISl,  §  3. 


P.  S.  223,  §  3. 


R.  L.  226,  §  3. 


Repeal  by 
General  Laws 
not  to  affect 
acts  done, 


Section  4.    The  repeal  of  a  law  by  this  act  shall  not  affect  any  act     1 
done,  ratified  or  confirmed,  any  liability  incurred,  or  any  right  accrued    2 


Chap.  2S1.]  the  general  laws  and  their  effect.  2849 

3  or  established,  or  any  action,  suit  or  proceeding  commenced  or  had  in  a  etc.   Effect  in 

4  civil  case,  before  the  repeal  takes  effect,  but  the  proceedings  in  such  case  R^sJ'iiefrs.^' 

5  shall,  when  necessary,  conform  to  the  provisions  of  the  General  Laws;  p.f.ils,'!*. 

6  provided,  that  appeals  from  orders,  decrees  or  denials  of  probate  courts  5|,i9|f4'  ^'^' 

7  made  before  this  act  takes  effect  shall  be  governed  by  the  law  then  in  l^^'"^^-  *i^' 

8  effect,  notwithstanding  its  subsequent  repeal  by  this  act. 

19  Pick.  57S.  4  Gray,  S6.  125  Mass.  316. 

20  Pick.  99.  2  Allen,  49,  496.  1S6  Mass.  376, 

21  Pick.  109,  210.  3  Allen,  153.  2  Op.  A.  G.  ISO. 
5  Met.  400.  5  Allen,  150. 

1  Section  5.    The  repeal  of  a  law  by  this  act  shall  not  affect  any  pun-  Repeal  by 

2  ishment,  penalty  or  forfeitiu-e  inciurcd  under  such  law,  except  that  any  notTo^affec?^ 

3  provision  of  the  General  Laws  by  wliich  a  punishment,  penalty  or  for-  forfeiture" 

4  feiture  is  mitigated  may  be  extended  and  applied  to  any  judgment  pro-  R"'|'''i'4|"'i  q 

5  nounced  after  said  repeal. 

G.  S.  181,  §  5.  P.  S.  223,  §  5.  E.  L.  226,  §  5. 

1  Section  6.     The  repeal  of  a  law  by  this  act  shall  not  affect  any  action,  Repeal  by 

2  suit  or  prosecution  pending  at  the  time  of  the  repeal  for  an  offence  com-  noTto^affert^ 

3  mitted,  or  for  the  recovery  of  a  penalty  or  forfeiture  incurred,  under  any  commeM^ed'""^ 

4  of  the  laws  repealed,  except  that  the  proceedings  therein  shall,  when  fj^g  j4g  g  7 

5  necessary,  conform  to  the  provisions  of  the  General  Laws. 

G.  S.  181,  §6.  P.  S.  223,  §6.  R.  L.  226,  §  6.  1  Allen,  1. 

1  Section  7.     Whoever,  when  said  repeal  takes  effect,  holds  an  office  Tenure  of 

2  under  any  of  the  laws  repealed  shall  continue  to  hold  it  according  to  servecf'^'' 

3  the  tenure  thereof,  unless  it  is  abolished  or  unless  a  different  provision  §;  |;  \ll[  1 1; 

4  relative  thereto  is  made  by  the  General  Laws. 

p.  S.  223,  §  7.  R.  L.  226,  §  7. 

1  Section  8.     The  salary  or  compensation  of  any  incumbent  of  any  Salaries  to 

2  office  or  position  at  the  time  when  the  General  Laws  take  effect  shall  not  "^°°"°"^- 

3  be  diminished  thereby,  notwithstanding  the  repeal  therein  of  any  act 

4  establishing  such  salary  or  compensation  and  notwithstanding  that  the 

5  General  Laws  establish  a  different  salary  or  compensation  for  the  office 

6  or  position. 

1  Section  9.     If  a  limitation  or  period  of  time  prescribed  in  any  of  the  Periods  of 

2  acts  repealed  for  acquiring  a  right,  barring  a  remedy  or  any  other  pur-  c'ontinue"to° 

3  pose  has  begun  to  run,  and  the  same  or  a  similar  limitation  is  prescribed  ^sSe,  7,  §  4. 

4  in  the  General  Laws,  the  time  of  limitation  shall  continue  to  run  and  p.f.^fsjls! 

5  shall  have  like  effect  as  if  the  whole  period  had  begun  and  ended  under  RL.226,  §  s. 

6  the  operation  of  the  General  Laws. 

1  Section  10.    All  acts  and  resolves  or  parts  thereof  in  force  at  the  time  Temporary 

2  of  the  taking  effect  of  the  General  Laws  which  are  of  limited  duration  tmue  inTorce. 

3  shall  continue  in  effect  according  to  their  terms,  notwithstanding  any 

4  provisions  of  said  General  Laws  inconsistent  therewith. 


2850  EXPRESS  REPEALS.  [Ch.\P.   282, 

CHAPTER    282. 

EXPRESS  REPEAL  OF  CERTAIN  ACTS  AND  RESOLVES. 

The  acts  and  resolves,  and  parts  of  acts  and  resolves,  specified  in  the  1 

annexed  schedule,  shall  be  expressly  repealed  from  and  after  December  2 

thirty-first,  nineteen  hundred  and  twenty,  subject  to  all  the  pro\'isions  3 

contained  in  chapter  two  hundred  and  eighty-one;  but  no  implication  4 

shall  be  drawn  from  such  repeal  that  said  acts  and  resolves  were  in  force  5 

until  so  repealed.                  •  6 

Schedule  of  Acts  and  Resolves,  and  Parts  of  Acts  and  Resolves, 

EXPRESSLY   repealed. 

Acts  prior  to  Re\'ised  Laws. 

1863,  chapter  220,  except  section  3. 
1871,  chapter  378. 

1882,  chapter  212. 

1883,  chaiiter  105. 
1887,  chapter  31. 

1889,  chapters  45;  439,  except  section  12. 

1890,  chapter  270. 

1891,  chapter  192. 

1892,  chapter  251. 

1893,  chapter  407,  except  sections  4,  9. 

1894,  chapters  101;   143;  288,  except  section  7. 

1895,  chapters  57;  294,  except  section  1;  406,  except  sections  9,  15;  450;  488, 

except  sections  4,  14,  16,  17,  22. 

1896,  chapters  414,  section  4;  465. 

1897,  chapters  83,  sections  3-5,  inclusive;   121;   336;   339;   520,  sections  8-10, 

inchisive. 

1898,  chapters  166;   ISO,  sections  4-6,  inclusive;  215,  section  4;  392;  424,  sec- 

tions 4-6,  inclusive ;  455;  463;  464;  473. 

1899,  chapters  241,  sections  4-6,  inclusive;    306;    308;   342;    349;    400;    419; 

424,  except  section  14. 

1900,  chapters  108;  172,  sections  1,  6,  7;  242;  340;  393;  413. 

1901,  chapters  93;  146;  168,  except  section  5;  380;  442;  464;  489;  498;  513. 

Resolves  prior  to  Revised  Laws. 
1860,  chapter  50. 

1884,  chapter  50. 

Re-v^sed  Laws. 

The  Revised  Laws,  except  the  following  chapters  and  sections: 
1,  section  5. 

15,  in  so  far  as  it  applies  to  estates  of  persons  deceased  before  September  first, 
nineteen  hundred  and  seven. 

19,  sections  10,  11. 

20,  sections  8,  9,  33. 

25,  section  46,  in  so  far  as  it  relates  to  the  title  to  land  which  reverted  to  the 

owner  before  July  first,  nineteen  hundred  and  eighteen. 

26,  section  14. 

29,  section  23,  in  so  far  as  it  relates  to  the  appointment  of  a  registrar  in  Boston. 
46,  section  8,  in  so  far  as  it  relates  to  releases  from  the  parental  school  of  the 

city  of  Boston. 
49,  section  31,  in  so  far  as  it  relates  to  Boston. 
82,  in  so  far  as  it  relates  to  proceedings  begim  before  July  first,  nineteen  hundred 

and  thirteen. 


Chap.  282.] 


EXPRESS  REPEALS. 


2851 


85,  section  45. 

91,  sections  7,  3S-41,  inclusive,  43-51,  inclusive,  53-56,  inclusive,  7S  (in  so  far 

as  it  relates  to  violations  of  section  39,  40,  43,  44  or  47),  79  (in  so  far  as  it 
relates  to  violations  of  section  41,  4S  or  49),  82,  99, 115,  121-130,  inclusive. 

92,  sections  10,  13,  23. 

100,  section  58,  in  so  far  as  it  relates  to  owners  or  lessors  of  buildings  or  premises 
under  lease  on  April  thirtieth,  eighteen  hundred  and  seventy-nine. 

103,  section  10. 

110,  sections  48,  82. 

115. 

125,  section  12. 

161,  section  55. 

166,  sections  15-17,  inclusive. 

193,  section  22,  in  so  far  as  it  relates  to  judgments  entered  by  trial  justices,  and 
section  29. 


Acts  of  1902. 

Chapter  57 

Chapter  256 

Chapter  412 

77 

272 

413 

91 

286 

414 

101 

289 

417 

109 

292 

422 

112 

299 

423 

113 

308 

436 

115 

309 

437 

116 

310 

438 

127 

312 

441 

137 

314 

443 

154 

320 

444 

159 

321 

453 

160 

324 

454 

161 

327 

455 

171 

336 

456 

177 

342 

457 

178 

349 

458 

186 

355 

462 

187 

356 

471 

189 

358 

474 

190 

359 

478 

192 

360 

490 

196 

361 

493 

206 

364 

499 

213 

368 

505 

226 

371 

613 

227 

374 

624 

228 

378 

530 

230 

383 

531 

236 

389 

537 

249 

391 

539 

250 

403 

540 

251 

406 

644 

253 

Resolve  of  1902. 
Chapter  65 

Acts  op  1903. 

Chapter  54 

Chapter  137 

Chapter  179 

95 

150 

195 

96 

157 

207 

97 

158 

209 

100 

161 

212 

116 

171 

213 

120 

177 

219 

2852  EXPEESS  EEPEALs.  [Chap.  282. 

Acts  of  1903  —  Concluded. 


Chapter  220 

Chapter  294 

Chapter  377 

222 

297 

383 

226 

299 

386 

227 

305 

387 

228 

306 

398 

229 

307 

402 

231 

308 

407 

233 

320 

408 

236 

322 

415 

237 

323 

420 

241 

329 

423 

244 

•330 

424 

245 

332 

428 

246 

333 

437 

247 

334 

452 

248 

344 

455 

249 

354 

459 

253 

355 

460 

260 

357 

467 

283 

361 

472 

287 

365 

480 

291 

375 

Acts  of  1904. 

483 

Chapter  38 

Chapter  219 

Chapter  329 

87 

220 

331 

88 

224 

344 

99 

226 

348 

105 

231 

350 

107 

234 

355 

119 

241 

356 

120 

242 

360 

122 

243 

361 

127 

244 

363 

142 

248 

365 

144 

258 

367 

145 

259 

369 

152 

261 

370 

153 

263 

371 

161 

264 

374 

163 

271 

379 

164 

272 

381 

165 

273 

382 

170 

274 

383 

172 

277 

386 

173 

278 

392 

176 

281 

395 

181 

282 

396 

183 

283 

401 

186 

286 

403 

194 

292 

409 

198 

295 

413 

200 

300 

422 

204 

302 

426 

206 

303 

427 

207 

305 

430 

208 

306 

431 

209 

307 

433 

214 

308 

439 

215 

317 

440 

216 

318 

442 

217 

322 

443 

218 

327 

444 

Ch.\P.   282.]  EXPRESS  REPEALS.  2853 


• 

Acts  of 

190'i  —  Conclnded 

Chapter  446  except  sec- 

Chapter 452 

Chapter  455 

tion  13 

453 

459 

448 

454 

460 

4.51 

Acts  of  1905. 

Chapter  79 

Chapter  242 

Chapter  338 

90 

243 

339 

92 

244 

340 

106 

245 

341 

107 

247 

344 

110 

249 

347 

115 

250 

348 

124 

251 

365 

127 

256 

369 

133 

258 

370 

144 

259 

373 

149 

260 

375 

150 

263 

377 

154 

266 

381 

155 

269 

384 

156 

271 

390 

157 

272 

391 

159 

280 

407 

162 

284 

410 

165 

285 

415 

167 

288 

417 

169 

289 

428 

175 

291 

432 

176 

295 

434 

179 

296 

435 

183 

298 

436 

192 

303 

437 

193 

307 

443 

195 

315 

447 

204 

316 

452 

206 

319 

454 

209 

320 

456 

211 

321 

457 

216 

322 

458 

218 

323 

459 

222 

324 

461 

228 

325 

464 

229 

326 

468 

233 

328 

472 

235 

330 

473 

236 

331 

474 

240 

332 

475 

241 

Acts  of  1906. 

Chapter  50 

Chapter  129 

Chapter  181 

59 

139 

183 

63 

141 

184 

66 

146 

185 

67 

147 

187 

73 

149 

190 

104 

151 

192 

107 

159 

194 

116 

165 

195 

117 

166 

196 

120 

172 

197 

126 

175 

198 

127 

180 

201 

2854  EXPRESS  REPEALS.  [Chap.  282. 

Acts  of  1906  —  Concliided. 


Chapter  203 

Chapter  303 

Chapter  413 

212 

304 

414 

215 

305 

415 

219 

306 

416 

221 

315 

418 

223 

322 

421 

224 

323 

423 

225 

324 

425 

228 

325 

433 

232 

327 

440 

233 

329 

449 

234 

336 

450 

235 

337 

451 

239 

338 

452 

240 

341 

457 

242 

342 

460 

243 

344 

463  except  Part 

244 

345 

I,  sections 

248 

346 

42,44;  Part 

251 

347 

III,  sections 

256 

349 

7,  58,  93 

257 

351 

465 

261 

352 

468 

262 

355 

469 

265 

365 

470 

266 

368 

471 

267 

369 

474 

268 

371 

476 

269 

372 

480 

271 

373 

481 

273 

374 

487 

274 

375 

489  except  sec- 

276 

383 

tion  1 

277 

384 

493 

280 

385 

494 

282 

386 

501 

286 

387 

502 

287 

395 

503 

288 

398 

504 

289 

403 

505  section  7 

290 

404 

516 

293 

407 

521 

301 

408 

522 

302 

Acts  of  1907. 

Chapter  26 

Chapter  159 

Chapter  206 

43 

163 

207 

80 

165 

208 

98 

169 

211 

99 

170 

215 

110 

173 

216 

111 

176 

219 

117 

177 

222 

118 

179 

223 

128 

180 

225 

129 

181 

228 

130 

183 

229 

133 

186 

231 

138 

189 

232 

139 

190 

234 

140 

191 

236 

145 

195 

238 

158 

204 

240 

Chap.  282.]  express  repeals.  2855 


Acts  of  1907- 

—  Co7iclvded. 

Chapter  241 

Chapter  336 

Chapter  442 

243 

337 

443 

245 

343 

445 

246 

344 

447 

250 

348 

448 

251 

349 

451 

252 

351 

453 

254 

354 

454 

256 

355 

458 

257 

356 

459 

259 

359 

460 

261 

362 

464 

262 

363 

465 

266 

364 

466 

271 

365 

467 

272 

366 

469 

273 

367 

471 

274 

370 

472 

276 

371 

473 

282 

373 

474 

283 

375 

475 

284 

377 

480 

285 

378 

487 

286 

384 

490 

287 

386 

500 

293 

389 

503 

299 

390 

517 

303 

392 

521 

305 

393 

524 

308 

394 

526 

309 

395 

533 

311 

396 

534 

312 

399 

535 

314 

401 

537 

315 

402 

539 

318 

405 

546 

319 

410 

549 

320 

411 

553 

323 

413 

561 

324 

414 

564 

327 

417 

571 

328 

427 

576 

329 

428 

578 

332 

431 

582 

333 

433 

585 

334 

438 

586 

335 

Acts  of 

1908. 

Chapter  57 

Chapter  133 

Chapter  173 

75 

135 

177 

81 

142 

178 

91 

143 

179 

98 

149 

180 

99 

150 

181 

104 

151 

182 

108 

153 

185 

110 

158 

187 

116 

162 

189 

120 

163 

190 

121 

165 

191 

123 

166 

193 

126 

169 

194 

127 

170 

195 

2856  EXPRESS  REPEALS.  [ChAP.   282. 

Acts  or  1908  —  Concliided. 


Chapter  205 

Chapter  352 

Chapter  493 

208 

353 

495 

218 

354 

498 

220 

356 

499 

221 

358 

502 

222 

360 

504 

226 

365 

505 

227 

368 

509 

229 

370 

510 

230 

371 

511 

231 

372 

513 

232 

374 

515 

233 

375 

516 

237 

378 

520 

243 

379 

525 

245 

381 

528 

247 

382 

530 

248 

385 

531 

250 

386 

534 

251 

387 

537 

253 

390 

539 

255 

392 

541 

256 

395 

542 

257 

397 

543 

263 

405 

544 

266 

411 

549 

268 

414 

550 

269 

416 

552 

273 

417 

553 

278 

418 

555 

280 

422 

560 

286 

424 

561 

289 

426 

663 

290 

431 

568 

295 

433 

570 

296 

435 

583 

299 

436 

586 

300 

440 

590  except  sec- 

301 

442 

tion  68, 

304 

443 

cl.  3  e  (7) 

305 

446 

591 

313 

450 

594 

314 

452 

595 

315 

453 

597 

316 

454 

598 

317 

458 

599 

318 

459 

601 

319 

463 

606 

323 

464 

612 

324 

465 

614 

325 

468 

615 

326 

469 

617 

327 

470 

620 

328 

471 

621 

329 

473 

630 

330 

474 

636 

333 

475 

637 

338 

476 

638 

341 

478 

639  except  sec- 

343 

479 

tion  7 

344 

482 

643 

348 

488 

646 

350 

492 

649 

351 

ClL-VP.   282.]  •         EXPRESS  REPEALS.  2857 


Acts  of  1909. 

Chapter  47 

Chapter  254 

Chapter  415 

49 

255 

417  except  sec- 

50 

256 

tions  1  and  6 

60 

258 

420 

67 

259 

421 

74 

261 

422 

92 

263 

423 

93 

267 

429 

94 

270 

430 

95 

273 

431 

98 

274 

432 

103 

276 

433 

114 

278 

434 

115 

279 

439 

116 

286 

441 

117 

287 

442 

119 

292 

443 

131 

295 

450 

132 

297 

453 

133 

301 

457 

136 

302 

467 

145 

309 

468 

147 

310 

469 

154 

312 

471 

155 

319 

472 

160 

326 

473 

165 

331 

474 

166 

342 

476 

174 

343 

485 

177 

345 

488 

180 

346 

490  except  sec- 

181 

348 

tions  12,  19, 

183 

350 

52,  53,  59, 

184 

357 

60  of  Part  I, 

186 

358 

sections  68, 

187 

362 

69,  70  of 

188 

363 

Part  II,  and 

189 

364 

Part  IV 

190 

365 

491  except  sec- 

192 

366 

tion  1 

193 

367 

494 

196 

368 

497 

197 

369 

504  except  sec- 

198 

371 

tions  97,  98 

199 

379 

508 

201 

380 

513 

208 

381 

514 

212 

382 

515 

214 

384 

516 

216 

386 

517 

217 

390 

524  except  sec- 

219 

391 

tions  1-4, 

227 

393 

inclusive, 

229 

394 

and  section 

230 

398 

10 

233 

399 

526 

235 

402 

528 

236 

405 

531 

242 

407 

534 

243 

408 

536  except  sec- 

245 

410 

tions  3,  7 

248 

412 

541 

250 

413 

542 

2858  EXPRESS  REPEALS.  [Ch.\P.   2S2 


Chapter 


Acts  of  1910. 

63 

Chapter  268 

Chapter  397 

80 

269 

398 

84 

270 

399 

87 

272 

400 

90 

273 

401 

94 

275 

404 

95 

279 

405 

98 

281 

411 

100 

282 

412 

114 

287 

414 

121 

288 

417 

122 

296 

419 

123 

297 

420 

125 

300 

421 

126 

306 

422 

130 

310 

424 

141 

311 

426 

143 

313 

428 

150 

316 

429 

151 

317 

430 

152 

319 

436 

153 

322 

439 

154 

326 

443 

166 

327 

449 

171 

328 

452 

172 

329 

453 

177 

330 

454 

179 

332 

456 

181 

333 

457 

184 

335 

458 

185 

338 

459 

187 

339 

460 

188 

342 

462 

193 

343 

463 

201 

345 

465 

204 

346 

467 

209 

347 

470 

214  except  sec- 

350 

472 

tion  54 

353 

473 

217 

355 

476 

219 

356 

478 

223 

358 

479 

224 

359 

480 

230 

360 

481 

235 

364 

483 

237 

366 

485 

244 

367 

489 

245 

369 

491 

248 

370 

493 

249 

375 

495 

253 

376 

497 

255 

377 

499 

256 

378 

500 

257 

379  except  sec- 

501 

258 

tion  2 

508 

259 

383 

512 

260 

385 

516 

261 

387 

518 

262 

390 

523 

263 

392 

524 

264 

393 

525 

265 

394 

528 

266 

396 

531 

Chap.  2S2.]  express  repeals.  2859 

Acts  of  1910  —  Concluded. 

Chapter  532 
533 
534 
536 
537 
538 
540 
541 
543 
544 
548 
550 
551 
552 
554 
555 
559 

Chapter  3 
4 
6 
8 
9 

19 

30 

31 

35 

36 

37 

38 

43 

51 

54 

60 

63 

70 

71 

72 

73 

75 

77 

81 

82 

83 

84 

85 

87 

88 

89 

90 
101 
111 
115 
116 
118 
119 
120 
121 
127 
129 
135 
136 


Chapter  560 

Chapter  607 

563 

608 

565 

611 

567 

616 

569 

619 

575 

622 

576 

624 

583 

629 

585 

633 

587 

634 

588 

640 

590 

641 

596 

645 

598 

649 

599 

653 

605 

656 

Acts  of  1911. 

Chapter  140 

Chapter  235 

143 

236 

146 

237 

147 

241 

150 

242 

151 

246 

154 

247 

158 

249 

160 

250 

162 

251 

163 

254 

172 

259 

173 

261 

174 

263 

175 

264 

176 

265 

177 

266 

178 

268  section  1 

179 

269 

184 

270 

185 

273 

186 

274 

188 

275 

192 

278 

194 

281  • 

195 

282 

198 

284 

199 

285 

204 

290 

205 

292 

206 

294 

207 

297 

208 

299 

211 

302 

212 

305 

214 

309 

215 

313 

216 

314 

218 

322 

220 

325 

228 

328 

229 

329 

231 

334 

232 

337 

2860 


EXPRESS  REPEALS. 


[Chap.  2S2. 


Acts  of  1911 — Concluded. 


Chapter  338 

Chapter  452 

Chapter  576 

339 

454 

577 

341 

456 

584 

343 

460 

588 

344 

461 

689 

345 

462 

595 

350 

466 

596 

352 

468 

597 

356 

470 

600 

357 

471 

603 

358 

473 

604 

361 

474 

607 

365 

477 

610 

366 

478 

613 

367 

480 

616 

370 

483 

618 

372 

484 

619 

375 

486 

620 

377 

487 

625 

379 

488 

628 

380 

489 

629 

381 

490 

632 

384 

491 

634 

388 

492 

635 

389 

493 

649 

391 

494 

656 

392 

495 

667 

394 

497 

668 

395 

498 

669 

397 

600 

673 

399 

501 

676 

400 

503 

676 

406 

606 

681 

409 

507 

682 

410 

608 

709 

414 

609 

722 

423 

526 

723 

427 

527 

727 

428 

532 

728 

429 

534 

731 

430 

639 

736 

431 

541 

743 

432 

542 

748  except  sec- 

433 

548 

tion  17 

442 

551 

751  except  Part 

443 

561 

IV,  sections 

444 

562 

1-15,  in- 

445 

666 

clusive 

447 

567 

755 

451 

Resolve  of  1911. 
Chapter  5 

Acts  of  1912. 

Chapter  3 

Chapter  54 

Chapter  73 

13 

69 

74 

17 

61 

77 

45 

64 

79 

49  section  1 

66 

80 

62 

70 

82 

53 

71 

90 

ClL\.P.   282.]  EXPRESS   REPEALS.  2861 


Acts  of  1912 — Continued. 


Chapter  96 

Chapter  270 

Chapter  465 

97 

271 

466 

103 

272 

467 

104 

277 

468 

106 

280 

470 

109 

283 

472 

114 

284 

474 

115 

289 

477 

119 

298 

482 

120 

304 

486 

122 

308 

488 

123 

310 

491 

124 

311 

493 

128 

312 

495 

129 

315 

496 

134 

317 

497 

139 

318 

498 

144 

320 

499 

151 

322 

500 

154 

325 

502 

155 

330 

503 

156 

331 

507 

158 

332 

512 

159 

333 

516 

160 

335 

522 

161 

336 

623 

162 

347 

524 

163 

353 

527 

165 

354 

531 

170 

357 

532 

171 

360 

533 

172 

362 

535 

173 

363 

546 

174 

368 

547 

175 

372 

548 

181 

375 

549 

185 

377 

552 

187 

378 

560 

189 

380 

561 

190 

382 

562 

191 

384 

563 

192 

387 

565 

197 

389 

566  except  sec- 

201 

390 

tion  2 

203 

391 

567 

209 

396 

571 

212 

400 

575 

218 

401 

577 

219 

403 

580 

223 

406 

581 

226 

412 

584 

234 

419 

585 

241 

438 

586 

246 

442 

587  except  sec- 

248 

443 

tion  2 

251 

445 

589 

253 

447 

595 

256 

448 

597 

257 

452 

603 

260 

457 

606 

263 

459 

608 

264 

462  ■ 

614 

269 

463 

621 

2862  EXPRESS  REPEALS.  [Chap.  282. 


Acts  of  1912- 

-  Concluded. 

Chapter  622 

Chapter  654 

Chapter  700 

623  except  sec- 

658 

705 

tion  44 

660 

706 

629 

663  except  sec- 

711 

632 

tion  2 

712 

635 

664 

715 

637 

666 

719 

639 

672 

722 

648 

674 

723 

649 

675 

725  Part  II 

651 

683 

726 

652 

695 

729 

653 

Acts  of 

1913. 

Chapter  38 

Chapter  254 

Chapter  365 

48 

255 

368 

62 

256 

369 

63 

257 

370 

68 

259 

376 

70 

264 

386 

81 

266 

390 

82 

269 

391 

85 

270 

392 

93 

281 

401 

95 

288 

404 

112 

289 

409 

114 

290 

410 

116 

291 

411 

120 

294 

413 

121 

295 

414 

123 

296 

416 

130 

300 

417 

161 

305 

419 

164 

307 

421 

174  ■ 

309 

422 

176 

310 

426 

177 

311  except 

430 

178 

forms  25, 

435 

179 

26  and  29 

439 

180 

312 

441 

181 

316 

444 

182 

317 

445 

191 

323 

446 

206 

324 

447 

209 

328 

448 

210 

329 

450 

211 

•   330 

451 

213 

332 

452 

214 

333 

453 

225 

334 

454 

226 

335 

458 

227 

336 

464 

228 

339 

467 

235 

343 

469 

236 

346 

471 

237 

347 

472 

240 

349 

473 

245 

355 

474 

246 

356 

475 

247 

357 

480 

248 

359 

481 

250 

360 

483 

Chap.  282.]  express  repeals.  2863 

Acts  of  1913  —  Concluded. 


Chapter  485 

Chapter  623 

Chapter  726 

487 

624 

727 

488 

625 

728 

489 

626 

736 

494 

628 

737 

499 

633 

738 

501 

636 

743 

502 

637 

744 

503 

638 

745 

504 

642 

746 

509 

643 

748 

515 

644 

750 

517 

645 

752 

518 

646 

758 

520 

647 

761 

523 

648 

762 

525 

649 

763 

526 

651 

764 

529 

652 

766 

530 

653 

779  except  sec- 

533 

654 

tion  10 

534 

655 

784 

535 

657 

786 

537  section  1 

660 

791 

538 

668 

792 

541 

669 

795 

542 

673 

796 

545 

674 

797 

549 

676 

801 

551 

677 

805 

552 

681 

806  except  sec- 

563 

682 

tion  12 

564 

685 

807 

568 

687 

813 

569 

688  except  sec- 

815 

573 

tion  2 

816 

578 

690 

817 

585 

691 

819 

595 

692 

822 

596 

694 

825 

597 

696 

829 

598 

697 

831 

599 

702 

832 

600 

705 

833 

602 

706 

834 

603 

709 

835  except  sec- 

605 

711 

tions  8,  23, 

610 

713 

38,  60,  62, 

611 

716 

65,  76-87, 

612 

718 

97,  99,  110, 

613 

719  except  sec- 

198, 203-207, 

614 

tions  13,  18, 

217,226,229, 

616 

22, 

23,24 

230,236,251, 

617 

720 

259,  298, 305, 

619 

722 

332, 450, 469 

620 

724 

840 

622 

2864  EXPRESS  REPEALS.  [GhAP.    282. 


Chapter 


Acts  or  1914. 

18 

Chapter  336 

Chapter  467 

33 

■  340 

470 

34 

345 

471 

35 

346 

473 

54 

347 

474 

55 

349 

477 

67 

352 

479 

76 

356 

483 

83 

358 

484 

90 

359 

486 

91 

367 

490 

116 

368 

491 

118 

370 

492 

120 

371 

493 

121 

373 

494 

122 

374 

504 

126 

375 

505 

138 

379 

509 

143 

384 

510 

146 

385 

511 

155 

386 

515 

158 

387 

518 

159 

390 

520 

164 

391 

521 

174 

393 

522 

177 

397 

523 

179 

399 

625 

180 

401 

527 

183 

404 

531 

190 

405 

532 

191 

406 

533 

198 

407 

537 

200 

408 

538 

204 

409 

540 

206 

411 

542 

209 

419 

544 

216 

420 

645 

217 

421 

646 

239 

422 

547 

241 

423 

553 

246 

424 

554 

247 

426 

556 

262 

428 

557 

263 

429 

558 

272 

432 

569 

276 

435 

566 

283 

436 

567 

284 

442 

568 

287 

443 

570 

291 

445 

571 

310 

446 

573 

311 

447 

576 

315 

448 

577 

316 

449 

580 

317 

450 

582 

318 

451 

587 

320 

452 

689 

323 

453 

590 

325 

454 

594 

326 

455 

697 

328 

458 

698 

329 

464 

600 

334 

4G5 

604 

CiLVP.   2S2.]  EXPRESS  REPEALS.  2865 

Acts  of  1914  —  Concluded. 


Chapter  606 

Chapter  661 

Chapter  720 

610 

662 

722 

611 

663 

723 

615 

666 

726 

616 

667 

728 

619 

669 

736 

620 

670 

739 

621 

671 

740 

622 

673 

742  except  sec- 

623 

676 

tion  71 

624 

679 

743 

625 

681 

744 

626 

684 

745 

627 

686 

746 

629 

688 

750 

631 

689 

757 

633 

690 

759 

634 

695 

761 

635 

696 

762 

637 

699 

770 

642 

700 

778 

643 

702 

783 

647 

708 

787 

648 

710 

790  except  sec- 

649 

712 

tion  7 

653 

714 

791 

654 

717 

792 

656 

719 

795 

658 

General  Acts  of  1915. 

Chapter  2 

Chapter  44 

Chapter  88 

6 

45 

89 

7 

46 

90 

9 

47 

91  except  sec- 

10 

49 

tion  7 

11 

51 

92 

12 

52 

93 

13 

53 

94 

14 

54 

95 

15 

55 

97 

16 

56  except  sec- 

98 

17 

tion  5 

99 

18 

57 

100 

19 

60 

101 

20 

61 

104 

21 

63 

105 

22 

64 

106 

23 

68 

107 

24 

69 

108 

25 

70 

109 

26 

73 

110 

27 

74 

111 

28 

75 

112 

32 

76 

113 

33 

77 

114 

34 

78 

115 

37 

81 

116 

38 

83 

117 

39 

84 

118 

41 

85 

120 

42 

86 

121 

43 

87 

123 

2866  EXPRESS  REPEALS.  [Chap.  282. 

General  Acts  of  1915  —  Concluded. 

Chapter  124 
125 
127 
129 
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
141 
142 
143 
144 
145 
146 
147 
148 
150 
151 
155 
156 
157 
158 
159 
160 
161 
162 
163 
164 
165 
166 
167 
169 
171 
174 
175 
177 
178 


Chapter  3 

4 

5 

6 

7 

12 

13 

14 

15 

16 

18 

19 


Chapter  179 

Chapter  245 

180 

249 

181 

250 

182  except 

scc- 

253 

tion  7 

254 

183 

259 

184 

260 

185 

261 

189  except 

sec- 

262 

tion  3 

263 

190 

264 

191 

265 

192 

266 

193 

267 

197 

268 

198 

269 

200 

271 

201 

272 

205 

273  except  sec' 

206 

tion  1 

207 

274 

208 

275 

209 

277 

211 

278 

213 

280 

214 

282 

216 

283 

217 

284 

219 

285 

220 

286 

222 

287 

223 

288 

225 

290 

226 

292 

231 

293 

234 

294 

236 

295 

237  except 

sec- 

296 

tion  20 

298 

238 

299 

239 

301 

240 

303 

241 

304 

SpECLiL  Act  of  : 

1915. 

Chapter  329 

General  Acts  of 

1916. 

Chapter  20 

Chapter  38 

21 

39 

22 

40 

23 

42 

24 

43  section  2 

26 

44 

28 

45 

29 

46 

31 

47 

32 

48 

36 

49 

37 

51 

Chap.  282.]  express  repeals.  2867 


Chapter 


GENEILUiACTS  OF  1916- 

-  Concluded. 

52 

Chapter  130 

Chapter  223 

54  except 

sec-        131 

224 

tion2 

133 

225 

55 

134 

226 

56 

135 

227 

57 

136 

228 

58 

137 

229 

59 

138 

233 

60 

139 

236 

61 

140 

238 

62 

142 

239 

63 

143 

240 

64 

144 

241 

65 

145 

242 

66 

146 

243 

67 

147 

244 

68 

148 

247 

69 

149 

248 

70 

150 

249 

71 

151 

251 

72 

153 

252 

75 

154 

257 

76 

155 

258 

78 

158 

259 

80 

160 

260 

81 

161 

261 

82 

162 

262 

83 

164 

263 

84 

166 

264 

85 

167 

266  except  sec- 

87 

168 

tion  1 

88 

169 

269  except  sec- 

89 

173 

tions  22,  23 

90 

174 

270 

91 

175 

271 

92 

177 

272 

95 

179  except 

sec- 

273 

97 

tion7 

274 

99 

182 

276 

101 

183 

279 

102 

184 

281 

103 

185 

285  except  sec- 

104 

188 

tion  1 

105 

189 

286 

107 

190 

287 

108 

191 

288 

109 

192 

289 

110 

194 

290 

111 

195 

291 

112 

196 

292 

113 

197 

296 

114 

198 

297 

115 

199  except 

sec- 

299 

116 

tion  1 

301 

117 

200  section  1 

303 

119 

201 

304 

120 

208  except 

sec- 

305 

122 

tion  3 

306 

125 

218 

308 

128 

220 

314 

129 

222 

316 

2868 


EXPRESS  REPEALS.  [Ca-VP.    282. 

Special  Act  of  1916. 
Chapter  174  except  section  4 

General  Acts  of  1917. 

Chapter     2  Chapter    77  Chapter  146 

4  78  14Q 


7  79 

8  80 


78  149 

150 


151 
152 
153 
154 
155 

13  85  156 

14  88 


9  81 

10  82 

11  83 

12  84 


15 

17  90 

18  91 

19  94 


159 

160 

.   161 

162 

163 

20  95  164 

21  97  165 

22  98  166 

23  99  168 

24  100  169 
2/  101  170 
29  except  sec-        102                171 

tions  7-12,         103  172 

inclusive         104  173 

32  106  sections  1-7       176  except  sec- 

35  and  17-20,  tion  1 

"50  both  inclu-        178 

37  sive  180 

38  107  185 

39  108  186 

41  109  187 

42  110  189 
44  111                190 

40  112  191 
46  113                192 

f'  115  193 

48  116  194 

49  117  196 

50  121  198 

51  122  199 

52  123  200 

53  124  201 

54  125  202 

55  126  203 
58  128  204 

60  129  205 

61  130  •    206 

62  131  207 

63  132  208 

66  133  209 

67  section  2  134  21O 
69  135  214 

Z9  136  215  except  sec- 

tl  138  tion  1 

'2  139  216 

73  140  217 

74  141  218 

75  143  219 
'6  144  221 


Chap.  282.]  express  repeals.  2869 

General  Acts  of  1917  —  Concluded. 


Chapter  223 

Chapter  262 

Chapter  298 

224 

263 

300 

226 

265 

302  except  sec- 

227 

266 

tion  3 

229 

267 

303 

231 

269 

305 

232 

270 

306 

233 

271 

307 

235 

273 

309 

237 

275 

311 

238 

276 

319 

240 

277 

320 

243 

279  except  sec- 

321 

244 

tions  45,  48 

326  except  sec- 

245 

280 

tion  12 

246 

282 

327  except  sec- 

247 

283 

tion  268 

248 

284 

328 

249 

286 

329 

250 

.289 

330 

251 

290 

333 

252 

291 

335 

253 

292 

336 

255 

293 

340 

256 

294 

341 

257 

295 

344  except  Part 

258 

296 

S,  section  2 

259 

297 

345 

260 

General  Acts  of  1918. 

Chapter  1 

Chapter  53 

Chapter  91 

4 

54 

93 

7 

55 

96 

9 

56 

98 

10 

57 

99 

11 

58 

100 

14 

59 

101 

17 

60 

103 

18 

61 

104 

21 

62 

105 

23 

63 

106 

25 

64 

109 

26 

65 

110 

27 

66 

111 

28 

67 

112 

29 

68 

113 

30 

69 

114 

32 

70 

115 

35 

71 

116 

36 

72 

117 

38 

77 

119 

39 

78 

120 

41 

79 

121 

42 

80 

122 

44 

81 

123 

45 

82 

124 

46 

83 

126 

47 

85 

127 

48 

86 

128 

50 

87 

129 

52 

89 

130 

2870  EXPRESS  REPEALS.  [ChAP.  282. 

General  Acts  of  1918  —  Concluded. 


Chapter  131 

Chapter  190 

Chapter  246 

133 

192 

247 

135 

193 

248 

136 

195 

249 

137 

197 

250 

138 

198 

251 

139 

199 

254 

140 

200 

257  except  sec- 

141 

201 

tions  37,  52, 

142 

202 

56,211, 

144 

203 

219a,  478, 

145 

204 

and  sub- 

146 

205 

section  46 

147 

207 

of  section 

148 

208 

187 

149 

209 

258 

150 

210 

259 

151 

211 

261 

153 

213 

262  except  sec- 

155 

214 

tions  1-3, 

156 

215 

inclusive 

159 

216 

263 

160 

217 

264 

161 

218 

265 

162 

220 

266 

163 

221 

268 

164 

222 

271 

166 

225 

272 

168 

227 

273 

169 

228  except  sec- 

274 

170 

tions  6,  7 

275 

171 

230 

280 

173 

231 

281 

175 

232 

2S2  except  sec- 

176 

234 

tions  8-16, 

178 

235 

inclusive 

180 

237 

283 

181 

238 

287 

183 

239 

289 

184 

240 

290 

187 

241 

291 

189 

244 

Special  Act  op  1918. 
Chapter  157 

General  Acts  of  1919 

Chapter  11 

Chapter  27 

Chapter  43 

12 

28 

45 

13 

29 

46 

14 

30 

47 

15 

31 

48 

17 

32 

49 

18 

33 

50 

19 

34 

51 

20 

35 

52 

21 

36 

63 

22 

37 

54 

23 

38 

56 

25 

41 

57 

26 

42 

59 

Ch-\p.  282.] 


EXPRESS  REPEALS. 


2871 


General  Acts  of  1919  —  Continued. 


Chapter  60 

Chapter  135 

Chapter  217 

61 

136 

219 

62 

137 

220 

63 

138 

221 

64 

140 

222 

65 

141 

224 

68 

142 

226 

69 

143 

227 

70 

145 

228 

71 

146 

229 

72 

148 

230 

73 

149 

233 

76 

150 

234 

77 

151 

235 

80 

152 

236 

81 

153 

239 

82 

154 

241 

83 

155 

242 

84 

156 

243 

86 

157 

244 

87 

158 

245 

88 

159 

246 

89 

160 

247 

90 

168 

249 

91 

169 

250 

92 

171 

251 

93 

176 

252 

94 

177 

253 

95 

178 

254 

96 

179 

255 

97 

180 

256 

98 

181 

259 

99 

183 

262 

100 

184 

263 

101 

186 

'264 

102 

187 

265 

104 

188 

266 

105 

189 

267 

106 

190 

268 

108  except  sec- 

191 

269  except  sec- 

tions 8-16, 

193 

tions  1,  6,  7, 

inclusive 

194 

12 

109 

195 

271 

110 

196 

272 

111 

197 

273 

112 

198 

274 

113 

199 

275 

114 

200 

277 

115 

201 

280 

116 

202 

281 

117 

203 

282 

120 

204 

286 

122 

205 

287 

123 

206 

288 

124 

207 

289  except  sec- 

127 

208 

tions  20,  21 

128 

209 

290 

129 

210 

291 

130 

212 

292 

131 

213 

293 

132 

214 

294 

133 

215 

295 

134 

216 

296 

2872  EXPRESS  REPEALS.  [ChAP.    282. 

Gener.\l  Acts  of  1919  —  Concluded. 


Chapter  297 

Chapter  321 

Chapter  351 

298 

323 

352 

299 

325 

353 

301 

326 

354 

303 

328 

355 

304 

329 

356 

305 

331 

357 

306 

333  except  sec- 

358 

308 

tion  41 

360 

309 

334 

361 

310 

347 

362  except  sec- 

311 

349 

tion  6 

312 

350  except  sec- 

363 except  sec- 

313 

tions  2-7, 

tion  17 

314 

inclusive, 

364 

318 

and  section 

371 

319 

130 

372 

320 

Acts  of  1920. 

Chapter   1 

Chapter  164 

Chapter  256 

14 

165 

257 

18 

166 

259 

29 

167 

262 

38 

168 

269 

40 

169 

270 

44 

172 

274 

45 

174 

280 

46 

175 

282 

47 

179 

285 

48 

181 

286 

49 

185 

288 

50  except  sec- 

188 

290 

tions  3,  5 

191 

292 

55 

199 

295 

56 

201 

297 

72 

202 

298 

78 

204 

300 

87 

205 

304 

100 

207 

306 

102 

208 

307 

103 

209 

308 

110 

210 

310 

111 

213 

311 

112 

216 

317 

113 

217 

319 

114 

218 

320 

120 

219 

321 

122 

221 

322 

123 

222 

324 

124 

223 

325 

127 

232 

326 

131 

236 

327 

137 

237 

328 

139 

238 

333 

141 

240 

334 

143 

242 

335 

146 

243 

336 

147 

244 

337 

149 

245 

339 

150 

253 

340 

152 

254 

341 

157 

255 

342 

Chap.  282.]  express  repeals.  2873 

Acts  of  1920  —  Concluded. 


Chapter  343 

Chapter  429 

Chapter  541 

344 

431 

545 

345 

432 

546 

346 

433 

547 

349 

434 

548 

352 

435 

549 

353 

436 

551 

354 

437 

553 

358 

443 

556 

359 

447 

558 

360 

451 

559 

361 

459 

560 

362 

460 

563 

364 

461 

564 

365 

463 

567 

367 

464 

569 

368 

467 

573 

369 

468 

674 

371 

470 

579  except  sec- 

376 

473 

tion  1 

377 

476 

580 

378 

477 

582 

380 

478 

583 

382 

479 

584 

383 

481 

587 

385 

482 

590 

386 

484 

591 

387 

485 

593 

388 

486 

594 

395 

487 

595 

396 

488 

596 

399 

490 

597 

403 

491 

598 

404 

492 

599 

408 

494 

601 

411 

495 

602 

412 

496 

603 

414 

508 

604 

415 

510 

614 

416 

511 

615 

417 

512 

618 

418  except  sec- 

514 

619 

tions  20,  22 

515 

620 

419 

517 

623 

420 

527 

625 

421 

528 

626 

422 

531 

627 

423 

534 

633 

424  except  sec- 

535 

640  except  sec- 

tion 5 

537 

tion  6 

425 

539 

426 

540 

I